ECOBANK NIGERIA LTD v. UCHECHUKWU AGHAZU
(2019)LCN/12760(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/E/542/2014
RATIO
COURT AND PROCEDURE: THE MATTER OF CROSS-EXAMINATION
“The matter of cross-examination as a noble art was well articulated in the case of KPANDEGH & ANOR V KYENGE & ORS (2015) LPELR-41785(CA) (PP. 17-18, PARAS. F-E) where OGBUINYA JCA observed: ‘Cross-examination has been described as the: “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”. SeeOforlete v. State (2000) 3 NSCQR 243 at 268, per Achike, JSC. Cross-examination “if rightly employed, is potent tool for perforating falsehood”. See Ayan v. State (2013) 15 NWLR (Pt. 1376) 34 at 36, per Fabiyi, JSC. Thus, cross-examination occupies an Olympian position in the adjectival law. It is the index with which to measure the truth of evidence-in-chief of witnesses. The veracity of a witness, under examination-in-chief, is tested by the evidence procured from him under the furnace of cross-examination. The respondents’ counsel harnessed their advocative prowess and dexterity to puncture the evidential credit of PW1. In the eyes of the law, evidence garnered through cross-examination is more reliable and dependable than that from examination-in-chief. See Adeosun v. Gov., Ekiti State (2012) 4 NWLR (Pt. 1291) 1; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521.'” PER CHINWE EUGENIA IYIZOBA, J.C.A.
DAMAGES: WHETHER THE APPELLATE COURT ALTER THE AWARD OF DAMAGES
“Generally an appellate Court would only alter an award of damages granted by a trial Court if the award is shown to be manifestly too high or manifestly too low or if the award was made on wrong principle of law or when the appellate Court is convinced that the figure was arrived at on a wholly erroneous estimate of the damage suffered by the plaintiff. See IJEBU-ODE LOCAL GOVERNMENT V BALOGUN (1991) 1 NWLR (PT. 166) 136.
The law, it appears is that as a general rule exemplary damages are not awarded in actions for breach of contract. See ALLIED BANK OF NIGERIA LTD V. AKUBUEZE (1997) 6 NWLR(PT.509) 374 @ 411.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
Before Their Lordships
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
ECOBANK NIGERIA LTDAppellant(s)
AND
UCHECHUKWU AGHAZURespondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Enugu State, Enugu judicial division in Suit No E/59/2010 delivered on the 24th day of October 2013 Coram Odugu J. The Respondent as Plaintiff in the lower Court took out a writ against the Appellant as Defendant claiming as follows:
(1) N6.5 Million being money which the Plaintiff invested with the defendant on 25/8/2009 and which investment matured on 25/2/2010;
(2) Interest on the said N6.5 Million at the rate of 12% per annum from August 2009 till the investment is completely paid up;
(3) N5 Million representing damages for the loss of use of the said money for the purposes of the Plaintiff’s business.
(4) N500 000.00 representing legal expenses incurred by the Plaintiff to recover her said investment from the Defendant.
While the suit was pending, Ecobank Nigeria Limited acquired Oceanic Bank International Plc. As a result of the acquisition, the lower Court on 27/9/12, on the application of the Respondent ordered that the name of Oceanic Bank International Plc be substituted with Eco Bank Nigeria Limited. The lower Court also made an order that all the processes filed in the suit be amended to reflect the new Defendant. On 23/11/12, the Respondent filed a fresh writ of summons, amended statement of claim and witness statement on oath. The Appellant filed a statement of defence which was subsequently amended to reflect the substitution.
The Respondent’s case as gathered from her pleadings was that in August 2009, Mr. Abraham Ajali, a Manager in Oceanic Bank International Plc Obodoukwu Road branch Onitsha called her on phone and pleaded with her to invest some money with the bank. The Respondent agreed to invest 6.5 Million and Mr. Ajali instructed her to write a cheque in the name of the bank’s staff for easy withdrawal. He sent a staff of the bank by name Mr. Emeka Onyekwe and the Respondent issued a Zenith Bank Cheque on the account of Agro Structures International Ltd for the investment in the name of Mr. Emeka Onyekwe. Mr. Onyekwe acknowledged receipt on the photocopy of the cheque (Exhibit 1). As proof of the investment, the bank issued the Respondent a deposit/investment Certificate for the sum of N6, 500,000.00 effective from 25th August, 2009 for 180 days at the rate of 12% and to mature on 25/2/10 (Exhibit 2). When the investment matured, the Respondent went to the Appellant’s Enugu Branch to liquidate the money but was told to go to the Appellant’s branch in Onitsha. At the Onitsha branch, the Respondent was again referred to the Appellant’s branch in Lagos. The Respondent wrote a letter dated 5/3/10 to the Manager at its Obodoukwu Road branch, Onitsha demanding for her money. The Appellant bank acknowledged receipt of the letter (Exhibit 3) but did not reply the letter whereupon the Respondent briefed a lawyer who wrote another letter dated 25/3/10 to the Appellant demanding that the Appellant pay the Respondent her money (Exhibit 4). In response to Exhibit 4, the Appellant wrote a letter dated 31/3/10 informing the Respondent’s lawyer that they were investigating the matter and would get back to him (Exhibit 5). The Appellant never got back to the Respondent.
The Appellant in their pleadings denied the claim of the Respondent and stated that at no point did the Respondent make any investment with her; that the name and the address of the Respondent are unknown to her.
The Appellant however admitted having a staff by name Abraham Ajalli who was the branch Manager, Obodoukwu branch of the bank. They claimed that the powers of the branch managers were specified; that there was no N6.5 Million deposit investment by the Respondent with the bank as there is a laid down procedure for investment; that an investment certificate could not have been issued by the Appellant to the Respondent for a non – existent investment. The appellant further stated that no Zenith Bank cheque was issued to the bank by the Respondent; that all cheques in favour of and payable to the Bank must be drawn in the Bank’s name. It claimed that the Zenith Bank Plc cheque No. 6018305763 of 24/08/09 was not written in the bank’s name but in the name of an individual Mr. Onyekwe Emeka Christopher and that the said amount was also not paid into the Bank’s coffers. The Appellant further stated that if at all anything transpired between Abraham Ajalli and the Respondent, it was a private transaction which had nothing to do with the business of the Bank and that the purported deposit certificate of the bank was to defraud the Bank against the backdrop that the cheque was made in the name of one Onyekwe Emeka Christopher and not in the name of the Bank.
At the hearing, the Respondent gave evidence as the Plaintiff’s sole witness. The Appellant also called one witness Mr. Uzodimma Ofoegbu. The parties filed written addresses which were subsequently adopted. On 24/10/13 the lower Court delivered its judgment granting all the reliefs claimed by the Respondent. Dissatisfied with the judgment the Appellant appealed by a Notice of Appeal which was subsequently amended. From the nine grounds of appeal in the Amended Notice of appeal, the Appellant formulated the following issues for determination:
i. Whether the respondent has established any cause of action and the necessary locus to institute this action against the appellant. (Grounds 1, 2 & 6).
ii. Whether the decision that the respondent is a signatory to the Account of Agro Structures International Ltd., emanated from the pleadings or the evidence of the parties or a product of imagination and private knowledge? (Ground 4).
iii. Is Exhibit 1 a primary or secondary document and if it is neither of the two, is it admissible under the Evidence Act and does it have any probative value? (Ground 8).
iv. Whether the trial Court’s use and reliance on evidence tendered on facts not pleaded is not a violation of the established principle of law of pleadings. (Ground 5).
v. Whether there was proper evaluation of credible and admissible evidence by the trial Court? (Ground 7).
vi. Whether the trial Court was right in awarding exemplary damages to the respondent in the absence of any claim, pleading or evidence. (Ground 9).
vii. Whether it was right and permissible within the Nigerian legal system for the appellant to bear the burden of the respondent’s Attorney’s legal fees/legal expenses? (Ground 3).
The Respondent in her brief distilled the following issues for determination:
(1) Whether the lower Court was right when it held that there was a cause of action in the suit and that the Respondent had the locus to institute the action? (Grounds 1, 2 & 6)
(2) Whether the lower Court relied on evidence on facts not pleaded in reaching its decision? (Grounds 4 & 5)
(3) Whether the lower Court was right in admitting in evidence Exhibit 1 the acknowledged copy of the cheque issued by Agro Structures International Limited? (Ground 8)
(4) Whether the lower Court carried out proper evaluation of evidence in the suit before reaching its decision? (Ground 7)
(5) Whether the lower Court was right when it awarded exemplary damages to the Respondent. (Grounds 3 & 9)
I shall in the determination of this appeal adopt the issues formulated by the Respondent as they are more succinct and cover all the seven issues formulated by the Appellant.
ISSUE 1:
Whether the lower Court was right when it held that there was a cause of action in the suit and that the Respondent had the locus to institute the action? (Grounds 1, 2 & 6)
APPELLANT’S ARGUMENTS:
Learned counsel for the Appellant on issue 1 submitted that the Zenith Bank Plc. Cheque No. 32119499 for the sum of N6.5m Exhibit 1 for the fixed deposit was issued by a limited liability company, Agro Structures International Ltd and not by the Respondent as pleaded and led in evidence. Learned counsel submitted that since Exhibit 1 did not emanate from the Respondent, that she lacked the locus standi to sue on the basis of the cheque.
Counsel opined that Agro structures International Ltd is a limited liability company with legal personality distinct from that of its members with power to sue and be sued in its corporate name. He relied on Section 37 Companies and Allied Matters Act Cap C20 LFN 2004 and the cases of SALOMON V. SALOMON & CO. LTD (1897) A.C. 22 @ 51 AND MARINA NOMINEES LTD V. FEDERAL BOARD OF INLAND REVENUE (1986) 2 NWLR PT. 20 @ 48 PP 61.
Learned counsel submitted that the Respondent not having issued Exhibit 1 had no locus standi to sue on the Exhibit. Counsel citing the case of ADEWUMI & ANOR. V. A.G. EKITI STATE & ORS. (2002) FWLR (PT 92) 1835 @ 1871 submitted that Locus standi denotes the legal capacity to institute a case in a Court of law; the right or competence to institute proceedings in a Court for redress or assertion of a right enforceable at law. Counsel referred to the written deposition of the Respondent which she duly adopted as PW1 at page 57 of the Record and submitted that it is at variance with the contents of Exhibit 1 which evidence showed that the cheque was issued by Agro structures International Ltd., a limited liability company which can institute an action on the basis of Exhibit 1. Counsel argued that the said company is not before the Court and has not filed any suit against the recipient and beneficiary of the cheque Mr. Onyekwe Emeka. He submitted that there is no claim against the Appellant by the said company. He urged the Court to so hold.
RESPONDENT’S ARGUMENTS:
Learned counsel for the Respondent quoted ground 1 of the grounds of appeal in the Notice of Appeal and submitted that the ground did not arise from the judgment of the Court and urged us to strike out the ground and the issue 1 formulated there from.
On the issue of locus of the Respondent to institute the action, counsel submitted that it must be established that a cause of action exists before the issue of locus would arise. Counsel submitted that to determine whether a cause of action has been disclosed, the Court looks at the statement of claim of the plaintiff. He opined that a cause of action is the fact or facts which establish or give rise to a right of action; the factual situation which gives a person the right to judicial relief. He cited the case of YUSUF V. CO-OP BANK LTD. (1994) 7 NWLR (PT. 359) 676 AT 692. Counsel submitted that the factual situation which gave the Respondent a right to judicial relief is the failure of the Appellant to pay the sum of N6,500,000 and the 12/% interest thereon in accordance with the terms of the fixed deposit certificate (Exhibit 2) issued to the Respondent by the Appellant. Counsel submitted that the lower Court was therefore right when it held that even though Exhibit 1 gave rise to Exhibit 2, it is Exhibit 2 that is the contract document and the subject matter of the suit.
Learned counsel submitted that Exhibit 1 does not contain the terms of the investment contract, and is certainly not the contract document; rather Exhibit 2 contains all the requirements of a valid contract and is thus the contract document. It is the failure by the Appellant to perform its part of the contract that gave rise to the suit in the lower Court. Counsel submitted that Agro Structures International Limited was not mentioned anywhere in Exhibit 2 and had no place in the contract. The parties to the contract are clearly the Appellant and the Respondent in this appeal. Counsel submitted that the mere fact that the consideration for the contract was furnished by a cheque drawn on Agro Structures International Limited did not mean that the Respondent ceased to be a party to the contract. He submitted that there is no privity of contract between Agro Structures International Limited and the Appellant and so Agro Structures International Limited cannot sue on the contract. Counsel urged the Court to resolve this issue in favour of the Respondent and to hold that the lower Court was right when it held that there was a cause of action in the suit and that the Respondent had the legal standing to file the suit.
RESOLUTION:
The Appellant’s ground 1 of the Notice of Appeal is that ?the trial judge erred in law when he held that the plaintiff (Respondent) is a signatory to the account of Agro Structures International Ltd. and therefore had the locus to maintain the action against the defendant a holding which has defied the established principle of law on corporate personality and resulted in a miscarriage of justice”. The Respondent?s contention is that the ground did not arise from the judgment of the lower Court. Learned counsel for the Respondent is right.
In his judgment at page 167 of the Record, the learned trial Judge held:
“I have perused Exhibit 1 which is the cheque for N6.5 Million Naira. From the contents of Exhibit 1, it is clear that the fund represented by Exhibit 1 has been drawn from the account of Agro Structures International Ltd and that the plaintiff on record is a signatory to the account. It is true that Exhibit 1 gave rise to Exhibit 2 (the fixed deposit certificate presented to the Court by the plaintiff). Exhibit 2 has the name of the plaintiff as the beneficiary. It is the contract document which is the subject matter of this suit.”
It is evident from the above that the learned trial judge did not hold that the Respondent has locus standi because she was a signatory to the account of Agro Structures International Ltd. The decision of the Court is that Exhibit 2 the fixed deposit certificate gave the Respondent the locus to file the action and not Exhibit 1 as alleged by the Appellant. Ground 1 of the Notice of appeal is hereby struck out. However Appellant?s issue 1 was distilled from grounds 1, 2 and 6. The issue is consequently saved by grounds 2 and 6.
The question here is whether there was a cause of action and whether the Respondent had the locus to institute the action? What then is a cause of action? In the case of ATIBA IYALAMU SAVINGS & LOANS LTD V SUBERU & ANOR (2018) LPELR-44069 (SC) KEKERE-EKUN JSC looked at some of the authorities on meaning of cause of action. He observed:
In Bello Vs A.G. Oyo State (1986) 5 NWLR (pt.45) 828 @ 876 A – B this Court considered what constitutes a reasonable cause of action. His Lordship Karibi-Whyte, JSC opined thus:
“I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.”
This definition was adopted by Obaseki, JSC in Afolayan Vs Ogunrinde (1990) 1 NWLR (pt. 127) 269 @ 382 F – H . His Lordship stated:
“In its simplest terms, I would say that a cause of action means:
(1) a cause of complaint; (2) a civil right or obligation fit for determination by a Court of law; (3) a dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine. It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.” See also: Thomas Vs Olufosoye (1986) 1 NWLR (pt.18) 669; Adimora vs. Ajufo (1988) NSCC Vol. 19 (Part) 1003 @ 1005; (1988) 3 NWLR (Pt. 80) 1; P.N Udoh Trading Co. Ltd vs. Abere (2001) 11 NWLR (Pt. 723) 114 @ 129 B C; Mobil Producing Nig. Unltd vs. LASEPA & Ors. (2002) 18 NWLR (Pt. 798) 1 @ 30 E-G.”
Applying the above decisions in the instant appeal, the cause of action would mean the cause of the Respondent?s complaint; the existence of a legal right or obligation fit for the determination of the Court; or a dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine. The Appellant?s complaint is that N6.5Million was given to the Appellant bank for which she was given a fixed deposit certificate detailing the terms of the agreement. On maturity the bank refused to return her money and the interest earned. The fixed deposit certificate is obviously the agreement between the parties. It is at page 61 of the Record. It was addressed to the Respondent, Aghazu Uchechukwu and signed by the Branch Manager and Head C & M of the Bank. The contention of the Appellant is that the cheque Exhibit 1 did not emanate from the Respondent but was issued by Agro Structures International Ltd., and so the Respondent has no locus and no cause of action against the Appellant. The lower Court, at page 167 of the Record dealt with the matter thus:
“It seems to me that the argument that the only proper person to file this suit against the defendant is the corporate entity known as Agro Structures International Ltd is, with due respect to learned defence counsel, flawed and not supported by law. The plaintiff has her name in Exhibit 2 which was issued to her. She is a party in the contract agreement for a fixed deposit. She gave evidence of how she handed over the cheque to a staff of the defendant.
The issue of how she personally obtained the fund through the account of Agro Structures International Ltd., is entirely a different transaction which ought not to be the subject matter of this suit more so when no authorized person allowed by law has validly complained of any wrong doing in such transaction. It is therefore wrong in equity for the defence to rely on the source of the fund to shield itself and prevent the Court from adjudicating on the plaintiff’s claim. Moreover, Order 13 Rule 15(1) of the High Court Rules of Enugu State 2006 provides as follows:
‘No proceedings shall be defeated by reason of misjoinder or non joinder of parties and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before it.”
The learned trial judge is absolutely right. The contention of the Appellant that the Respondent had on locus to institute the action or that she has no cause of action simply because the money used in the fixed deposit was provided by Agro Structures International Ltd is misconceived. Anybody or entity could have made the funds available to her.
Any issue on that is strictly between the Respondent and the provider of the funds. The Appellant bank has no business with it. Issue 1 is resolved against the Appellant.
ISSUES 2, 3 AND 4:
APPELLANT’S ARGUMENTS:
The above issues cover Appellants issues ii, iii, iv and v.
Under issue ii whether the decision that the respondent is a signatory to the account of Agro Structures International Ltd., emanated from the pleadings or evidence of the parties or a product of imagination or private knowledge; learned counsel submitted that the trial Court’s decision that the respondent is a signatory to the account of Agro Structures International Ltd and therefore can maintain an action on the basis of Exhibit 1 is not borne out of the pleadings or the evidence of the parties. Counsel submitted that the company Agro Structures International Ltd was not mentioned in any of the pleadings, evidence or cross-examination of the parties. It was also not mentioned that the Respondent is a signatory to the account of the company. Counsel did not understand how the trial Judge came about the conclusion that the Respondent is a signatory to the company account.
Appellant’s issue iii is whether Exhibit 1 is primary or secondary document and if it is neither of the two, whether it is admissible under the Evidence Act and if it is admissible, whether it has any probative value? On the issue, learned counsel contended that the Zenith Bank cheque tendered and admitted in evidence by the trial Judge was wrongly admitted as there is no provision under the Evidence Act for the admissibility of a document that is partly original and partly a photocopy. Counsel conceded that the part of the photocopied check which read “original check collected by me on behalf of Oceanic Bank to place in a Fixed deposit account as agreed” is not a photocopy as the said writing which was by the Respondent is original. Counsel submitted that Exhibit 1 was cleverly photocopied with modern technology to hoodwink the Court. He argued that it is a spurious document and thus inadmissible in evidence. Counsel submitted that the trial Judge in his Ruling on the objection to the admissibility of the cheque laid emphasis on the fact that the document was acknowledged by Onyekwe Emeka Christopher. He submitted that the holding did not accord with the representation on the cheque. Counsel argued that the signature of Onyekwe Emeka Christopher on the back side of the check is a photocopy while the writing itself is original. He contended that the inescapable conclusion is that the handwriting of the respondent showing that Onyekwe Emeka Christopher acknowledged receipt on behalf of the appellant was an afterthought. Counsel urged the Court to hold that EXHIBIT 1 is inadmissible as it is neither primary nor secondary evidence.
On issue iv, whether the trial Court’s use and reliance on evidence tendered on facts not pleaded is not a violation of the established principle on pleadings, learned counsel for the Appellant submitted that in the course of the hearing, the Respondent tendered evidence on facts not covered by the pleadings and facts over which issues were not joined by the parties. Counsel submitted that the learned trial judge despite the objection of the Appellant refused to expunge the items of evidence duly itemized. Counsel submitted that in refusing to expunge the evidence, the trial Court relied on a wrong quotation from the case of BAMGBOYE VS OLAREWAJU (1991) 4 NWLR (PT. 184) @ 647.
Counsel pointed out that the position of the law is that evidence tendered on facts not pleaded whether it was led in chief or elicited under cross-examination is inadmissible. He cited the following authorities: AKOMOLAFE & ANOR V. GUARDIAN PRESS LTD (2010) 1 S.C. (PT.1) 58 PP 74 – 75 & 78; AMODU V. COMMANDANT, POLICE COLLEGE, MAIDUGURI & ANOR (2009) 7 S.C. 1 @ 16-17. Counsel itemized the pieces of evidence tendered by the Respondent which were not pleaded as follows:
(I). The name of John Okigbo was never mentioned in the pleadings and no averment was made to the effect that John Okigbo took the phone and spoke to the Manager of Oceanic Bank, Obodoukwu branch, Onitsha.
(ii). The evidence that the plaintiff was introduced to the Manager, Oceanic Bank, Obodoukwu branch, was not in the pleadings.
(iii). Evidence that Oceanic bank, Obodoukwu branch was in distress and in need of fund was not covered by the pleadings.
(iv). Evidence that the bank was really in need of cash and they told the plaintiff that they needed to deposit the cheque in their branch to be able to get the credit which usually accrues to them at that time of the month.
(v). Evidence that Abraham Ajalli was desperate that was why I gave them cash so as not to delay them with clearing processes was not in the pleadings.
(vi). Evidence that the urgency in not writing the cheque in the bank’s name was caused by the Manager as he needed to have the money in his Account in order to meet with his monthly target was not pleaded.
(vii). Evidence that the Exhibit 1 for N6.5million was opened for over the counter payment because the branch Manager informed me in the presence of John Okigbo that he wanted it in cash so that it will reflect as a direct deposit from Obodoukwu branch was not pleaded.
(viii). Evidence that Oceanic Bank has a product called Oceanic Notes and that is what I had with them was not in the statement of claim.
(ix). Evidence that it is the standard procedure in the banks that banks don’t sign their names and signatures as it is in their data bank was not pleaded. (NOTE) This piece of unpleaded evidence arose out of the question that Exhibit 2 did not contain the names of the signatories.
(x). Evidence that it is the standard practice of the bank not to include the names of the signatories in the investment letter was not pleaded. (This answer was in response to the question why the names of the signatories are not in EXHIBIT 2).
(xi) There is no evidence or pleading that the respondent is a signatory to account of Agro structures International Ltd.
Learned counsel submitted that if the trial Court had not relied on the above pieces of evidence not covered by the pleadings, it would not have entered judgment in favour of the Respondent.
On their issue v, whether there was proper evaluation of evidence adduced, counsel submitted that the trial Court failed to properly evaluate the evidence led and to ascribe probative value to the admissible and credible evidence adduced at the trial. Counsel citing several authorities submitted that the appellate Court has the jurisdiction to interfere with the findings of facts of a trial Court where such evaluation is perverse and not in line with the evidence adduced. Counsel submitted that the trial Court for inexplicable reason imported into the records things that never occurred in course of the proceedings. He referred page 160 lines 21-28 of the Records where the Court summed up the evidence of the Respondent thus:-
“Mr. Ajalli instructed the plaintiff to write the cheque in the name of the Oceanic Bank International staff for easy withdrawal. Based on the instruction, the plaintiff issued a Zenith Bank Plc cheque for the sum of N6.5million in the name of one Emeka Onyekwe a staff of Oceanic Bank …”
Counsel argued that the above quoted passage was neither in the pleadings nor in the evidence of the respondent. Counsel further submitted that if the above evidence and other pieces of evidence which did not derive from the pleadings were expunged, and the admissible evidence properly evaluated the trial Court would not have entered judgment in favour of the Respondent. Counsel urged the Court to expunge the improperly admitted evidence.
RESPONDENT’S ARGUMENTS:
Learned counsel argued Respondent?s issues 2, 3 and 4 together. The issues are (2) whether the lower Court relied on evidence of facts not pleaded in reaching its decision (3) whether the lower Court was right in admitting in evidence as Exhibit 1 the acknowledged copy of the cheque issued by Agro Structures International Limited and (4) whether the lower Court carried out proper evaluation of evidence in the suit before reaching its decision?
Counsel in responding to the grouse of the Appellant that there was no pleading that the Respondent is a signatory to the Zenith Bank account of Agro Structures International Limited submitted that the said fact was sufficiently pleaded in paragraph 4 of the Statement of Claim and evidence of same deposed to in the witness statement on oath of Uchechukwu Aghazu. Counsel submitted that it is not in dispute from the pleadings and evidence that the Respondent issued and signed the Zenith Bank cheque for N6.5 million and that the Zenith Bank Cheque is drawn on the account of Agro Structures International Ltd. Counsel submitted that these facts being undisputed, ought to be taken for granted without any further specific pleading. He submitted that it is impossible for a person to sign a cheque for an account to which he is not a signatory. Counsel further submitted that the vigorous cross-examination of the Respondent by the Appellant was to test her veracity.
The Appellant having cross-examined the Respondent as to the circumstances surrounding the issue of the Zenith Bank cheque for N6.5 Million in the name of the Appellant’s staff cannot turn round to deny knowledge or notice that the Respondent is a signatory to and is in fact the owner of the Agro Structures International Ltd Zenith Bank account. Counsel submitted that the pleading in paragraph 4 of the statement of claim and witness statement on oath of the Respondent were enough pleadings and evidence to support the inference and finding of the lower Court that the Respondent is a signatory to the account of Agro Structures International Limited.
On the Appellant’s argument on his issue iv that the lower Court was wrong in not expunging certain evidence of the Respondent elicited during cross-examination, Counsel submitted that the basic requirement for the admissibility of evidence is its relevance. Quoting Sections 1, 5 and 7 of the Evidence Act, counsel submitted that the facts complained about were properly admitted by the trial Court. Counsel further relying on Order 15 Rule 2, High Court (Civil Procedure) Rules, Enugu State 2006 which provides that pleadings shall contain in summary form the material facts on which the party pleading relies on for his claim, but not the evidence by which they are to be proved submitted that a combined reading of the High Court Rules and the Evidence Act shows that not every minute detail should be pleaded.
Counsel submitted that all the facts tabulated by the Appellant as wrongly admitted are relevant and admissible as they explain or introduce the facts in issue in the pleadings; support an inference suggested by the facts in issue; establish the identity of the facts in issue; fix the time and place at which the facts in issue happened; or show the relationship of parties by whom the facts in issue was transacted. Counsel submitted that the evidence sought to be expunged by the defence were answers given by the plaintiff to questions put to her by the defence counsel. He submitted that the learned trial judge was right in refusing to expunge the facts and in holding that the facts elicited from the plaintiff during cross examination by the defence counsel are not only relevant but explain the pleaded facts in the statement of claim.
On the Appellant’s submissions in respect of Exhibit 1, counsel submitted that the learned trial judge rightly overruled the objection of the Appellant to the admissibility of the photocopied cheque as proper foundation had been laid regarding the original.
Counsel submitted that the Appellant on his issue v challenged the evaluation of evidence by the lower Court referring to some passages and evidence in the judgment which he said were neither in the pleadings nor the evidence of the Respondent. Counsel submitted that the implication is that the Appellant is challenging the record of the lower Court. Citing the case of Governor of Kwara State v. Lafiagi (2005) 5 NWLR (Pt. 917) 139 @ 155-156, counsel submitted that the only way to challenge the Record of proceedings of the lower Court is by deposing to an affidavit. Learned counsel submitted that the learned trial judge thoroughly evaluated the evidence led before coming to its decision. He urged the Court to resolve issues 2, 3 and 4 in favour of the Respondent.
RESOLUTION:
The Appellant had contended that the trial Court’s decision that the Respondent is a signatory to the account of Agro Structures International Ltd., and therefore can maintain an action on the basis of Exhibit 1 was not born out of the pleadings or the evidence of either of the parties. The learned trial judge never at any point said the Respondent could maintain the action because she is a signatory to the account of Agro Structures International Ltd. The Court’s holding is that the contract between the parties is Exhibit 2 – the certificate of deposit which has the name of the Respondent and not the company on it. Whether or not the Respondent specifically pleaded that she is a signatory to the account of Agro Structures International Ltd is a moot point because from the pleadings as they are, it is taken as given. One does not issue a cheque in an account in respect of which one is not a signatory. From the pleading in paragraph 4 of the Statement of claim at page 53 of the Record, it is obvious not only that the Respondent is the sole signatory of the account, but she is also the owner of the company. In BAMGBOYE V. OLAREWAJU (1991) 4 NWLR (PART 184)132 @ 155 KARIBI-WHYTE JSC observed:
‘It seems to me consistent with the principle that evidence led during cross-examination on issues joined is not inadmissible, merely because such evidence is not supported by the pleading of the party eliciting the evidence. For instance, in the instant case, although the defendant did not plead the fact that all the sections of the Okesan family had a common ancestor, the reference to the fact that they were all of the same family by paragraph 6 of the Statement of Claim was sufficient for the admission of any evidence establishing or negating that fact. And this is so whether on cross-examination.”
In paragraph 4 of the Statement of Claim at page 53 of the Record, the Respondent as Plaintiff had averred:
“Thereafter, the Plaintiff issued a Zenith Bank cheque for this amount and the Defendant duly acknowledged receipt of this cheque through its staff, Onyekwe Emeka Christopher. The Plaintiff shall at the trial rely on a copy of the said cheque on which receipt was acknowledged. The Plaintiff will at the trial rely on a copy of her statement of account for her said Zenith Bank to show that the money was withdrawn.”
With the above pleading, I think it is superfluous for the Appellant to argue that the Plaintiff did not plead that she is a signatory to the account; she could not have issued the cheque if she was not a signatory to the account. The cheque was admitted in evidence as Exhibit 1. The name of the company Agro Structures International Ltd., is written at the bottom of the cheque. The fact that the name of the company was not specifically mentioned in the pleadings or evidence is of no moment. What is important is that the parties reached an agreement that the Respondent would invest N6.5million in the Appellant bank. The money was provided and a certificate of deposit was issued to the Respondent. Why would the bank concern itself with the source of the funds? Any complaint from that angle should emanate from the provider of the funds. Agro Structures International Ltd has not complained.
The complaint of the Appellant with regard to the admissibility of the cheque Exhibit 1 is also misplaced. On the objection, the learned trial judge ruled thus:
‘I have carefully considered the substance of the objection by learned counsel for the defendant in the light of the relevant provisions of the Evidence Act 2011. First and foremost is what has been said by PW1. I am of the humble view that proper foundation has been laid by the PW1 as to the whereabout of the original cheque following her explanation that it was issued and collected by one Emeka Onyekwe. She has therefore explained what happened to the original document. It is a notorious fact that in banking practices it ought to have been lodged in account for the value of the cheque to be realized.
Secondly, the endorsement on the photocopy of the cheque as to the receipt of the original is primary evidence that the original cheque was actually received by the payee. See Section 86(1) of the Evidence Act 2011. Objection is therefore overruled.
The reasoning of the learned trial judge is sound. The distinction learned counsel for the Appellant tried to draw that the Exhibit is a hybrid document not provided for in the Evidence Act is unknown to law. We are not dealing with abstract issues but practical matters touching on the rights and obligations of the disputants. Aside from the provisions of the law, common sense dictates that the photocopied cheque with the endorsement of the recipient of the cheque ought to be admitted in evidence. It is then up to the Appellant to adduce evidence to disprove receipt of the cheque by the recipient; a fact that has already been established by the issue of the certificate of deposit.
On the Appellant’s complaint that the learned trial judge refused to expunge facts elicited from PW1 during cross-examination on the ground that the facts were not pleaded, I think learned counsel is a bit confused about the issue of pleading of facts. Only facts are pleaded, not evidence. It is not every aspect of a fact that must be pleaded. Once an aspect of a fact has been pleaded, and learned counsel while cross-examining the witness puts questions to the witness that helps the witness explain further the facts pleaded or to supply elements of the facts left out, counsel cannot turn round to ask for the evidence to be expunged because that particular aspect was not pleaded. BAMGBOYE V. OLAREWAJU (1991) 4 NWLR (PART 184)132. This is why it is said that the art of cross-examination is a noble art which counsel must learn carefully. It is always better not to put questions to a witness when you are not sure that the answer will be to your benefit.
If you know that a party was deficient in his pleadings, why not leave it alone and use the point at the address stage instead of putting questions that would now enable the party expatiate and clarify his pleadings.
The matter of cross-examination as a noble art was well articulated in the case of KPANDEGH & ANOR V KYENGE & ORS (2015) LPELR-41785(CA) (PP. 17-18, PARAS. F-E) where OGBUINYA JCA observed:
“Cross-examination has been described as the: “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”. SeeOforlete v. State (2000) 3 NSCQR 243 at 268, per Achike, JSC. Cross-examination “if rightly employed, is potent tool for perforating falsehood”. See Ayan v. State (2013) 15 NWLR (Pt. 1376) 34 at 36, per Fabiyi, JSC. Thus, cross-examination occupies an Olympian position in the adjectival law. It is the index with which to measure the truth of evidence-in-chief of witnesses. The veracity of a witness, under examination-in-chief, is tested by the evidence procured from him under the furnace of cross-examination. The respondents’ counsel harnessed their advocative prowess and dexterity to puncture the evidential credit of PW1.
In the eyes of the law, evidence garnered through cross-examination is more reliable and dependable than that from examination-in-chief. See Adeosun v. Gov., Ekiti State (2012) 4 NWLR (Pt. 1291) 1; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521.”
In the present case, learned counsel by the nature of his cross-examination achieved the opposite result. He gave PW1 opportunity to explain further the matters pleaded. For example, the Respondent in her pleadings said the cheque for the fixed deposit was written in the personal name of a staff of the bank for immediate cash. Through the questions put to her by counsel in cross-examination she now gave detailed explanation as to why the cheque was written in the name of the bank staff instead of in the name of the bank. In a similar vein through questions put by learned counsel for the appellant in cross-examination PW1 now explained why the names of the signatories were not indicated in the Certificate of Deposit. Learned counsel cannot now turn round and complain that the answers to the questions put by him were not pleaded. I agree with learned counsel for the Respondent that all the facts tabulated by the Appellant as wrongly admitted are relevant and admissible as some of them explain or introduce the facts in issue in the pleadings while some others support an inference suggested by the facts in issue. Even if there were certain evidence that ought to have been expunged, I am of the view that failure to expunge such evidence did not lead to any miscarriage of justice.
Learned counsel for the Appellant on his issue v submitted that there was no proper evaluation of the evidence and called on us to carry out a proper evaluation of the evidence led. Counsel’s main grouse is the issue of the cheque bearing the name of Agro Structures International Ltd., and his insistence that the investment was by the Company and not the Respondent. The Appellant is wrong and the learned trial Judge is right that the contract between the parties is governed by Exhibit 2 – the Certificate of Deposit. The parties thereon are the Respondent and the Appellant bank. The contention of the Appellant is that the cheque Exhibit 1 not having been written in the name of the bank, the bank is absolved of all liability.
He argued that it was poor evaluation of evidence and a miscarriage of justice for the trial judge to have admitted the two Exhibits. With due respect, the Appellant got it all wrong. Exhibit 2, the Certificate of Deposit has by its terms superseded the Cheque Exhibit 1 and whatever flaws if any that flowed from it. By Exhibit 2, the bank confirmed the investment and acknowledged receipt of the N6.5million naira. Let me set out the contents of Exhibit 2:
“OCEANIC BANK
INTERNATIONAL PLC.
AGHAZU UCHECHUKWU 10/11/2009
185 UPPER CHIME
ENUGU
Dear Sir,
RE: YOUR N6,500,000 [SIX MILLION FIVE HUNDRED THOUSAND NAIRA ONLY INVESTMENT/DEPOSIT IN OUR OCEANIC NOTES
We wish to confirm your investment with us on the following terms:
PRODUCT: OCEANIC NOTES
FACE VALUE: N6,500,000
EFFECTIVE DATE: 25/08/2009
MATURITY DATE: 25/02/2010
TENOR: 180 DAYS
RATE: 12%
While thanking you for your patronage, kindly sign the duplicate copy of this letter in acknowledgement and acceptance of the terms and conditions therein and return same to us at maturity.
Please note that if we do not receive your response prior to maturity of the investment, the investment will be rolled over at the prevailing market rate.
Yours faithfully,
For: Oceanic Bank International Plc.
SGD
Branch Manager
SGD
Head C & M.”
The above Exhibit 2 sets out clearly the terms and conditions of the contract between the Respondent and the Appellant bank and constitutes the contract document. It is the failure by the Appellant to perform its part of the contract that gave rise to this suit. The Appellant?s fixation on the company Agro Structures International Limited is misplaced. It is not a party to the contract. The learned trial judge on the issue rightly observed:
“It is true that Exhibit 1 gave rise to Exhibit 2; (the fixed deposit certificate presented to Court by the plaintiff). Exhibit 2 has the name of the plaintiff as the beneficiary. It is the subject matter of this suit……. The issue of how she personally obtained the fund through the account of Agro Structures International Ltd., is entirely a different transaction which ought not to be the subject matter of this suit ….”
In the lower Court, the Appellant had pleaded that Exhibit 2 was forged which averment they failed to substantiate.
The lower Court in its judgment at page 170 of the Record held:
.. From the above statement and admission made in the open Court by DW1, I find as a fact that the defendant was grossly negligent and never took any reasonable step to substantiate the defence claim that Exhibit 2 is a forged document. The allegation of forgery has not therefore been proved by the defence.?
The Appellant did not appeal against this holding of the learned trial judge.
Issues 2, 3 and 4 are resolved against the Appellant.
ISSUE 5
APPELLANT’S ARGUMENTS
This is covered by Appellant’s issues vi and vii
vi. Whether the trial Court was right in awarding exemplary damages to the respondent in the absence of any claim, pleading or evidence. (Ground 9).
vii. Whether it was right and permissible within the Nigerian legal system for the appellant to bear the burden of the respondent’s Attorney’s legal fees/legal expenses? (Ground 3).
On Appellant’s issue vi, above, learned counsel submitted that the Respondent did not claim exemplary damages in her writ of summons and that it was also not averred in the statement of claim; and that no evidence was tendered on exemplary damages. Counsel submitted relying on SHUAIBU V. MUAZU (2007) 7 NWLR (PT 1033) 271 that it is settled law that the Court is not a Father Christmas that grants a party a relief not contained in the statement of claim. Counsel further submitted that a party who intends to recover exemplary damages in his action must as a matter of law plead the facts of exemplary damages and then lead evidence to prove same. He called in aid the case of AFRIBANK PLC V. AMINU ISHOLA INVESTMENT LTD (2003) FWLR (PT 141) 1841 @ 1862. Counsel argued that the subject of this action is contract and not tort; and that generally exemplary damages are not recoverable in a purely contractual action. He cited UMOETUK V. UNION BANK PLC (2001) FWLR (PT 81) 1849 @ 1863; ALLIED BANK OF NIGERIA LTD V. AKUBUEZE (1997) 6 NWLR (PT. 509) 374 @ 411.
On issue vii above, counsel questioned the trial Court’s award of the cost of the litigation and respondent’s solicitor’s fees against the appellant. Citing some authorities, counsel urged the Court to set aside the award made by the trial Court for legal expenses as it is not only punitive but also not obtainable in our jurisprudence.
RESPONDENT?S ARGUMENTS:
On whether the lower Court was right in awarding exemplary damages to the Respondent, counsel cited the cases of ODIBA V. AZEGE (1998) 9 NWLR (PT. 566) 370 AND BAKER MARINE NIGERIA LTD V. CHEVRON NIGERIA LTD (2006) LPELR- 715 (SC) to submit that it is clear from the evidence given in this case that the Appellant in its dealing with the Respondent acted in flagrant disregard of the law. Counsel opined that the Appellant, out of fraud and cruelty, refused to honour its own side of the transaction with the Respondent but rather fraudulently refused to pay back the money given to it by the Respondent and even went as far as denying the debt. Counsel submitted that there is no worse conduct deserving of exemplary damages than the conduct of the Appellant in this case. He urged the Court to hold that the lower Court was right in awarding exemplary damages to the Respondent.
RESOLUTION:
Generally an appellate Court would only alter an award of damages granted by a trial Court if the award is shown to be manifestly too high or manifestly too low or if the award was made on wrong principle of law or when the appellate Court is convinced that the figure was arrived at on a wholly erroneous estimate of the damage suffered by the plaintiff. See IJEBU-ODE LOCAL GOVERNMENT V BALOGUN (1991) 1 NWLR (PT. 166) 136.
The law, it appears is that as a general rule exemplary damages are not awarded in actions for breach of contract. See ALLIED BANK OF NIGERIA LTD V. AKUBUEZE (1997) 6 NWLR(PT.509) 374 @ 411.
The learned trial judge was right that having awarded 12% interest on the amount of fixed deposit up to the date of the judgment, awarding general damages would amount to double compensation. Apart from the fact of exemplary damages not having been pleaded, I do not think the Appellants acted out of fraud and cruelty as submitted by the Respondent in her brief. The Appellant believed she was not liable because the amount fixed was as she claimed not actually paid into the coffers of the bank and seeing what she thought was a loop hole, that the cheque was not made out in the name of the bank; she erroneously thought she could escape liability. The fact that Oceanic Bank where the incident occurred had been taken over by Eco Bank did not help matters. I agree with the Appellant that the award of exemplary damages was erroneous.
With respect to the award of N500.000.00 for legal fees incurred by the Respondent, Abiru JCA in the case of AGBALUGO & ANOR V IZUAKOR (2017) LPELR-43289(CA) (PP. 55-56, PARAS. F-E) stated the law thus:
“The law is that a claim by a claimant for legal fees he paid to his Solicitor is not one that is ordinarily granted by a Court – Ihekwoaba Vs African Continental Bank Ltd (1998) 10 NWLR (Pt. 571) 590 at 610-611, Nwanji Vs Coastal Services (Nig) Ltd (2004) 11 NWLR (Pt 885) 552. It is correct that in Guinness (Nig) Plc Vs Nwoke (2000) 15 NWLR (Pt 689) 135 it was suggested that such a claim was unknown to our law. The correct position of the law, however, is that solicitor’s fees is claimable, and to succeed on such a claim it must be specifically pleaded as special damages and must be proved by credible and cogent evidence – Balogun Vs Amubikahun (1985) LPELR-FCA/I/129/82, Divine Ideas Ltd Vs Umoru (2007) All FWLR (Pt 380) 1468, Shell Petroleum Development Company Nigeria Ltd Vs Okonedo (2008) 9 NWLR (Pt 1091) 85, Intercontinental Bank Ltd Vs Brifina Ltd (2012) 13 NWLR (Pt 1316) 1, Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR-40199(CA).”
The Respondent in paragraph 11 of the Statement of Claim pleaded that in the bid to recover her money, she had to brief the firm of Eze, Dimude, Eze & Co. She claimed the sum of N500, 000.00 as legal fees paid to the law firm. I am of the view that legal fee was specifically pleaded as special damages. No doubt the Respondent ought to have produced a receipt as evidence of the payment but the traverse of her paragraph 11 was general in nature. The Appellant averred in his paragraph 14 of the Amended Statement of Defence at page 81 of the Record that she has no record in support of any investment in the bank by the Respondent and therefore cannot be liable for any losses if any incurred by the plaintiff. There was no challenge of the figure of N500, 000.00. In today?s legal world five hundred thousand naira is not an outrageous amount to claim for legal fees. There is no reason to interfere with the award to the Respondent of the sum of N500, 000.00 for legal expenses. Issue 5 is partly resolved in favour of the Appellant.
In the final result this appeal succeeds in part only in respect of the award of N500, 000.00 exemplary damages. That part of the judgment is hereby set aside. Subject to that, the judgment of the Court as set out at page 171 of the Record is affirmed with costs assessed at N100, 000.00 in favour of the Respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the opportunity of reading before now the lead judgment of my learned brother, CHINWE EUGENIA IYIZOBA. JCA. Indeed, I have closely and diligently followed the reasons and conclusions arrived at with regard to the instant appeal matter. I find them agreeable and in tandem with my viewpoints thereon. In the final result, this Appeal succeeds in part only in respect of the award of N500,000.00 exemplary damages. Part of the Judgment is hereby set aside. The Judgment of the Court as set out at page 171 of the Record is affirmed with costs assessed at N100,000.00 in favour of the Respondent.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother CHINWE EUGENIA IYIZOBA, JCA and I totally endorse the reasoning and conclusion therein.
The attempt by the Appellant to walk away from its obligations to the Respondent which it freely entered into was unconscionable and unacceptable in a business environment.
For the more detailed reasoning in the lead judgment, I equally allow this appeal in part while adopting the consequential orders in the lead judgment as mine.
Appearances:
NNAMDI OTUKWU, ESQ.For Appellant(s)
TOCHUKWU ODO, ESQ. WITH HIM CHIDINMA OKO ESQ.For Respondent(s)
