ECOBANK NIGERIA PLC v. ELDER DOMINIC EKPERIKPE (2013)

ECOBANK NIGERIA PLC v. ELDER DOMINIC EKPERIKPE

(2013)LCN/6032(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 19th day of March, 2013

CA/C/225/2009

RATIO

ADMISSION: MUST ADMISSION BE BASED ON PERSONAL KNWOLEDGE?

”Admission should be based on personal knowledge. See Seismograph Services Ltd. vs. Eyuafe (1976) 1 FWLR 162 at 167; Bamiro vs. SCOA (1941) 7 WACA 150 and Nii Okai II vs. Nii Ayikai II (1946) 12 WACA 3t at 36. In Comptroller of Customs vs. Western Electric Co. Ltd. (1965) 3 All E.R. 599 Lord Hodson held at page 601that: “..If a man admits something of which he knows nothing it is of no real evidential value…” In Whall & Anor. vs. Bulman (1953) 2 Q.B. 198 Lord Denning M.R. held at page 202 that: “…The parties cannot agree on a false hypothesis and ask the Court to adjudicate upon it…”.” Per TUR, J.C.A.

DAMAGES: ANTICIPATED PROFITS : WHETHER ANTICIPATED PROFITS MUST BE OROVED

”Furthermore, anticipated profits are in the form of special damages. They must be pleaded and strictly proved at the trial. See Odumosu vs. ACB (1976) 11 SC 55. In Uwa vs. ITC (1988) 12 SCNJ (Pt.1) 102 the anticipated profit the plaintiff could have made if the defendant had performed her contractual obligation was based on a price list prepated by persons who were not called to testify as witnesses.” Per TUR, J.C.A.

BANKING LAW: WHAT IS THE DUTY OF A BANKER

”..Idigbe, J.S.C. in Balogun v. National Bank of Nigeria Ltd. (1 978) 3 S.C. 155 at pages 163 and 164 stated as follows: “The role or predominating business of banker in the business of banking which consists in the main in the receipt of monies on current or deposit account and the payment of cheques drawn by, as well as the collection of cheques paid in by a customer – See also Atkin, L.J. Joachimson v. Swiss Bonk Corporation (1921) 3 K.B. 110 of 127. Therefore, the receipt of money from or on account of his customer by a banker constitutes the latter the debtor of the former (Foley v. Hill (1848) 2 H. L. Cas 28); and the banker undertakes to pay any part of the money thus due from him to the customer against the written orders of the customer (Joachimson v. Swiss Bank Corporation (supra). Accordingly the relation so constituted is that of principal and agent and therefore, a cheque drawn on the banker by the customer represents the order of the principal to his agent to pay, out of the principal’s money in his hands, the amount stated on the cheque to the payee endorsed on the cheque.” Per OTISI, J.C.A

Before Their Lordships

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

ECOBANK NIGERIA PLCAppellant(s)

AND

ELDER DOMINIC EKPERIKPERespondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Respondent took out a writ of summons against the appellant at the High Court of Justice, Uyo, Akwa Ibom State on the 18th day of September, 2007 claiming in paragraph 39 of the Statement of Claim the following reliefs:

“39. WHEREFORE: The plaintiff claims’ against the defendant as follows:

(i) SPECIAL DAMAGES:
(a) The sum of N850,000.00 being the amount fraudulently and negligently withdrawn from plaintiffs saving account No.4540820517 with the Defendant.

(b) The sum of N4.25 million being the contract sum awarded the plaintiff for the supply of 50 units Qlink motorcycles by Ika Local Government Council.

(c) N1.2 million being the profit the plaintiff lost for failure to supply the above bikes as a result of the Defendants negligence.

(ii) GENERAL DAMAGES:
The sun of N 2million being general damages for the several frustration, embarrassment, inconveniences, loss of clientele, reputation, credibility, integrity and business opportunities all resulting from the Defendant’s fraudulent conduct and negligence.”

The appellant sought and was granted leave to enter a memorandum of appearance and file a statement of Defence on 21st day of May, 2007. The appellant denied liability to the claim. The parties called evidence as follows:
The Respondent was a customer of the appellant. He operated account No.4540820517 at the appellant’s branch at Barracks Road, Uyo. In December, 2006 the Respondent secured a contract to supply 50 Qlink Motorcycles to the Ika Local Government Council in Akwa Ibom State at the cost of Four Million Two Hundred and Fifty Thousand Naira only (N4,250,000.00). Time was of essence in executing the contract by 27th day of December, 2006 for use of the Motorcycles by the Council during the Xmas period. The Respondent went to withdraw the sum of One million Naira from his account at Barracks Road, Uyo but his application was dishonoured on the ground that he had insufficient funds. The Respondent recalled that on the 10th December, 2006 he had in that account a total sum of One Million, three hundred thousand Naira. The Respondent demanded his statement of account which the appellant’s obliged him. On scrutiny the Respondent discovered three instances of unauthorized withdrawals totaling N850,000.00. The Respondent protested that the sums should be credited into his account for he needed the money to execute the contract but the management would not yield. The Respondent engaged the services of a Legal Practitioner who wrote the appellant giving her notice to sue if the money was not credited into the account. The head office of the appellant sent an auditor to investigate the un-authorized withdrawals. By this time the Ika Local Government Council had cancelled the contract. The auditors found on investigation that the unauthorized withdrawals were perpetrated by staff of the appellant who were subsequently disciplined. The Respondent instituted this Suit claiming the reliefs set out in paragraph 39 of the Statement of Claim. In the course of trial the appellant credited the N850,000.00 into the accounts of the Respondent. The trial however proceeded on the questions whether special and general damages should be awarded to the Respondent. On the 30th day of March, 2009 the learned trial Judge delivered judgment in favour of the Respondent holding at page 95 lines 7-27 and page 96 lines 1-6 of the printed record as follows:
“The only surviving claim under special damages is the claim for N1.2 million being the profit the plaintiff lost for failure to supply the motorcycles.
The total value of the contract as per Exhibit “A” was N4,250,000.00 (Four Million Two Hundred and Fifty Thousand Naira) only. When the amount stated on Exhibit “F” is subtracted from that on Exhibit “A”, the difference is N1,100,000.00 (One Million, One Hundred Thousand Naira) only. The evidence of Pw1 in respect of the supplier waiving the 5% VAT can not be given effect by this Court as it is illegal. Accordingly, I award the sum of N1.1 million (one Million, one Hundred Thousand Naira) as special Damages being what he could have earned from the contract but for the negligence of the defendant.
I had earlier made a finding that the plaintiff is a businessman. It has been urged upon this court that this case is not one for wrongful dishonour of cheque and therefore general damages be not granted. In a wrongful dishonour of cheque obviously the reputation of the Bank’s customer who issued the cheque is seriously assailed. In a case of wrongful dishonour of withdrawal slip does the customer of the bank not suffer any embarrassment and humiliation, is he not inconvenienced and the like? In the instant case DW1 acknowledged that the plaintiff was insistent on being paid maintaining he had sufficient money in his account, when this is juxtaposed with the defendant’s refusal to honour the withdrawal slip, an ordinary person in such situation will feel humiliated, embarrassed and devastated in reputation. Accordingly, I assess the plaintiffs entitlement to render damages in sum of N500,000.00 (Five Hundred Thousand Naira).
In all, I find the plaintiff entitled to the total sum of N1,600,000.00 (one Million, Six Hundred Thousand Naira) only made up as follows:
‘Special Damages    –    N1,100,000.00
General Damages    –       N500,000.00
Total          –    N1,600,000.00″
That shall be the judgment of this court.”
Being aggrieved by this decision the appellant lodged an appeal on 23rd April, 2009 on four grounds. With leave of this Court the Notice of Appeal was amended and filed on 29th day of November, 2010 with the addition of Ground 5. Appellant’s Brief of argument was filed on 21st October, 2010 followed by a deeming order on 29th November, 2010. The Respondent filed his brief of argument on 23rd December, 2010. The Appellant responded with a Reply brief on 8th day of March, 2011. When the appeal came up for hearing on 12th February, 2013 Counsel adopted their respective briefs of argument. The learned Counsel to the appellant identified the following issues for determination:

“1. Whether the learned trial judge was correct to award Special and General Damages in favour of Respondent, having in doing so, utilized principles applicable to claims arising out of the Tort of negligence, rather than those applicable to claims arising out of negligent breach of contract. (Ground 1 and 3 in the amended Notice of appeal).

2. Whether the learned trial Judge was correct to rely upon the Respondent’s oral evidence in proof of the fact that his supplier was prepared to accept part-payment in the sum of N1,000,000,00 (one- Million Naira) for the delivery of 50 (fifty) Qlink Motorcycles invoiced at N3,150,000 (Three Million, One Hundred and Fifty Thousand Naira) (Inclusive of VAT) (Ground 2 in the Amended Notice of Appeal).

3. Whether the learned trial Judge was correct to have placed reliance upon the contents of Exhibit “F” the Respondent’s supplier’s Quotation/ Current price list, which document was not tendered by the maker thereof (i.e, the supplier himself), (Ground 5 in the Amended Notice of Appeal).

4. Whether the learned trial Judge, in awarding damages in favour of the Respondent, did not give effect to a contract procured illegally, in view of the fact that the Respondent had admitted in his Statement of Claim that he spent money on “Public Relations” to secure the supply contract, (Ground 4 in the Amended Notice of Appeal).”

The Respondent’s issues for determination are set out as follows:
“1. whether the learned trial Judge was wrong to have entered judgment in favour of the Respondent in the circumstances of this case. (Grounds 1 and 3 in the Amended Notice of Appeal).

2. whether the Appellant proved any illegality of the supply contract at the trial? (Ground 4 in the
Amended Notice of Appeal).

This Court and the Supreme Court has on several occasions frowned at the proliferation of issues for determination for it is not their number that determine the quality of a brief nor the success of an appeal. Issues should not be formulated so as to obscure the real questions for determination on appeal. See Omega Bank Nigeria Plc vs. O.B.C. Ltd. (2005) 1 SCNJ 150 at 166; Iwuoha vs. NIPOST Ltd. (2003) 8 NWLR (Pt.822) 308. Formulated issues that overlap but can be considered together may be merged and determined as one issue. See Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 at 16 paragraphs “G” to page 17 paragraph “G”.For the above reasons I shall treat the issues set down for determination by the appellant by merging issues one, two and three together but consider issue four separately.
ISSUE ONE, TWO AND THREE:
Learned Counsel to the appellant submitted that a bank has a duty to exercise reason able care and skill in executing its contract with its customers, citing Agbanelo vs. UBN (2001) 7 NWLR (Pt.666) 534 at 550. That the Respondent was wrong to have founded his claim in negligence which is a tort rather than in breach of contract- To succeed the Respondent should have called evidence of the contract and the subsequent breach to establish damages, citing Eagle super Pack (Nig.) Ltd. vs. ACB Plc (2006) 19 NWLR (Pt.1013) 20 at 48; IMNL vs. Nwachukwu (2004) 13 NWLR (Pt.891) 543 at 560; Balogun vs. NBN Ltd. (1979) 11 NSCC 135; Afribank (Nig.) Ltd. Plc vs. A. I. Investment Ltd. (2002) 7 NWLR (Pt.765) 40 at 64-65 and FBN vs. Associated Motors (1998) 10 NWLR (Pt.570) 441 at 464-465. Counsel argued that general damages are not normally awarded in cases of breach of contract but only for tort. Besides, the question of remoteness of damages was not considered by the learned trial Judge. Counsel’s contention was that the losses must be reasonably foreseeable by the parties before a learned trial Judge could make an award sounding in damages. Foresee ability is to be determined at the point of entering into the contract of customer/banker relationship not afterwards. The Respondent only informed the appellant he needed the money to execute the contract during the withdrawal but not at the time the relationship of customer/banker came into existence. The Respondent revealed that he was a businessman or trader only under examination-in-chief on 30th day of May, 2007. Counsel submitted that the loss that is recoverable in a breach of con tract depends on the knowledge possessed by the parties at the time of the contract not ex post facto, citing Eyo vs. Bank of West Africa Ltd. (1933-1966) 1 NBLR 370 at 389 and Kpohraror vs. Woolwich Building Society (1986) 4 All E.R. 119. Counsel’s further contention is that had the learned trial Judge considered the suit as arising under contract he would have found that the general damages claimed were too remote since the appellant never had any notice of the contract to be executed by the Respondent. That the award should be set aside, citing A.G. Leventis (Nig.) Plc vs. Akpu (2007) 17 NWLR (Pt.1063) 416.
Learned Counsel to the appellant next argued that the learned trial Judge erred in law to have relied on the oral evidence of the Respondent that Ike Mike Merchandise would have supplied the 50 Qlink Motorcycles invoiced at N3,150,000.00 (Three Million, One Hundred and Fifty Thousand Naira) to the Respondent upon part-payment of an initial deposit of One Million Naira when he did not testify. That in the absence of evidence from the supplier the learned trial Judge erred to have concluded that the Respondent would have earned the profit claimed, citing Utteh vs. The State (1992) 2 NWLR (Pt-223) 527; Section 77 of the Evidence A4 Cap E14 Laws of the Federation of Nigeria, 2004; Ojo vs. Gharoro (2006) 10 NWLR (Pt.987) 173 at 198-199; Judicial Service Committee vs. Omo (1990) 6 NWLR (Pt.157) 407. The further argument by learned Counsel is that Exhibit “F” was not tendered by her maker hence ought to be held inadmissible. Counsel cited Omega Bank (Nig.) Plc vs. O.B.C. Ltd. (2005) 8 NWLR (Pt.928) 54; Lambert vs. Nigerian Navy (2006) 7 NWLR (pt.980) 514; Nigerian General Insurance Co. Ltd. vs. Emoh (1990) 3 NWLR (pt.138) 314 and Ojukwu vs. Military Governor of Lagos State (1985) 2 NWLR (Pt.10) 806; Section 91(1) of the Evidence Act (supra); Etajota vs. Ologbo (2007) 16 NWLR (Pt.1061) 554 at 587; Dalek (Nig.) Ltd. vs. OMPADEC (2007) 7 NWLR (Pt.1033) 402 at 441; Okonji vs. Njokanma & 2 ors. (1998) 12 SCNJ 259 at 273; Abubakar vs. Chuks (2007) 18 NWLR (Pt.1066) 386 at 403 and Buhari vs. INEC (2003) 19 NWLR (Pt.1120) 246 at 414. That had the learned trial Judge properly evaluated the evidence he could not have arrived at the decision that the Respondent had proved his claim. There was no evidence to establish the claim of general and special damages, citing Buhari vs. INEC (2003) 19 NWLR (Pt.1120) 246 at 409-410. Counsel further argued that Exhibit “F” had no probative value and urged this Court to hold that there was no evidence upon which the learned trial Judge could have also assessed loss of profit. The Court was urged to resolve issues one two and three in favour of the appellant.
Learned Counsel to the Respondent replied that Exhibit “F” was tendered through Elder Dominic Ekperikpe to whom it was addressed, citing Section 134(2) and (3) of the Evidence Act (supra). Moreover, the exhibit was tendered and admitted without objection. Counsel referred Kasali Kanimi vs. Achji Akintoye (1986) 3 NWLR (Pt.26) 97 at 105; Ebenezer Olunloye vs. Olusola Fatunbi (1999) 8 NWLR (Pt.614) 203 at 212; Jinadu vs. Esurombi – Ara (supra) and Ntuks vs. Nigerian Ports Authority (2007) 5 KLR (Pt.236-8) 2367 at 2388. That the appellant owed a duty of care to the Respondent which was breached, citing Emmanuel Agbanelo vs. Union Bank Plc (2000) 7 NWLR (Pt.666) 534 and Societe BanCaire Nig. Ltd. vs. Delluch (2005) All FWLR (Pt.242) 419. The breach of this duty resulted into the unauthorized withdrawal of the sum of N850,000.00 from the Respondent’s account by the appellant’s staff. When this was detected and a demand for the refund of the money was made the appellant would not credit it into the account to enable the Respondent execute the contract and thereby lost the profit he could have made. The Respondent was only to plea d and prove the damages and profits sustained by the acts of the appellant’s staff. Counsel cited UBA vs. Folarin (2003) 7 NWLR (Pt.818) 12 at 46; First Bank of Nigeria Ltd. vs. Excel Plastic Industry Ltd. (2003) FWLR (pt.160) 1624 at 1655 and Chima Akwara vs. International Bank For West Africa Ltd. (2000) FWLR (Pt.11) 1766 at 1782. The onus was therefore on the appellant to prove that she was not negligent, citing Jinadu vs. Esurombi-Aro (2005) All FWLR (pt.251) 349 at 373. Learned Counsel further contended that the cases cited by the learned Counsel to the appellant were situations where the bank breached an agreement to open letters of credit for the plaintiff in which case the suits were founded in breach of contract. To succeed there must be the evidence of the contract that was breached. But that was not the situation in this case. Counsel contended that special and general damages proved were rightly awarded by the trial Court, citing Unipetrol Nig. Plc vs. Adireje (2004) All FWLR (Pt.231) 1228 at 1299 and Edward Okwejiminor vs. Gbakeji (2008) 1 KLR (Pt.248) 609 at 628. The loss of the contract was not remote but foreseeable argued Counsel since that had been explained to the manager of the appellant who would not yield to the Respondent’s pleas to make money available in order to execute the conflict. Learned Counsel referred to the oral evidence adduced at the trial by the Respondent of the willingness of his supplier to take one million naira and supply the bikes as not challenged during cross-examination. That the evidence was not hearsay. It was also contended that the Respondent was not cross-examined on the issue and he ought to be believed by the learned trial Judge, citing Gaji vs. Paye (2003) 14 NSCQR 613 at 616 and 629 and Section 92(1) of the Evidence Act (supra). Counsel cited Section 76 of the Evidence Act as authority that the understanding with the supplier could be proved by oral evidence. That it was not necessary to call him to testify before the Court would believe the fact that he was ready to take one million Naira as deposit to make the delivery. Counsel argued that the facts and circumstances of each case was the factor to be considered by a Court in arriving at its decision, citing Ojo vs. Ghararo (2006) 10 NWLR (Pt.987) 173 at 234 and Nwobi vs. Anukam (2000) FWLR (Pt.18) 323 at 326. The Court was urged to resolve issue One, Two and Three against the appellant.
In Banker and Customer, 3rd edition by W. W. Wood, edited by James Russel, page 14 appears the following statement of fact concerning a banker and customer:
“Primarily the relationship is one of contract. There is in the mere receiving of money to be credited to a customer’s account the essential element of contract – namely, offer and acceptance: offer by the-customer on his part of the money as a loan, despite the fact that the motive of deposit for safe keeping may be present, and acceptance of the money by the bank under the implied condition that it will be repaid on demand to the customer’s order.”
In Joachimson vs. Swiss Bank Corporation (1921) 3 All E.R. Rep. 92 Lord Atkin summarized some of the duties of a bank to the customer at page 100 thus:
“The bank undertakes to receive money and collect bills for its customers account….it is a term of the contract that the bank will not cease to do business with the customer except upon reasonable notice, The customer, on his part, undertakes to exercise reasonable care in executing his written orders so as not to mislead the bank or to facilitate forgery. I think it is necessarily a term of such contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the current account is kept.”
The fact that the sum of N850,000.00 was credited into the account of the Respondent after it was discovered on investigation that the unauthorized withdrawals were by the staff of the appellant is enough evidence that there were sufficient funds in the account at the time the Respondent sought to withdraw the sum of N1 million from that account at Barracks Road, Uyo, Akwa Ibom State. The wrongful dishonour of the Respondent’s demand to withdraw the moneys constituted a breach of contract. The damages to be awarded may be substantial depending on the facts of each case. This was clearly set out in the judgment of the Supreme Court in Balogun vs. NBN Ltd. (1978) NSCC 135 at 140 lines 16 to 21 per Idigbe, JSC:
“Therefore, it has long been established that refusal by a banker to pay a customer’s cheque when he holds in hand an amount, equivalent to that endorsed on the cheque, belonging to the customer amount to a breach of contract for which the banker is liable in damages, The only question which arose, in these circumstances, has always been that relating to the quantum or amount of damages. The general rule for measuring or quantifying damages for breach of contract was that established by the leading case of Hadley vs. Baxendale (1854) 9 Exch.341 which is that the party in breach is liable in damages is that the party in breach is liable in damages (sic) in the amount which flows directly and naturally from his failure to- keep his own part of the contract or bargain provided that such damages could reasonably have been within the contemplation of the parties at the time when the contract was made but it rarely happens that a banker known(sic) the circumstances under which a customer has had to issue a cheque which (sic) refused to honour and this makes it very difficult to apply the rule in Baxendale (supra) in measuring damages in those circumstances. It is on this account that damages awarded for wrongful dishonour of cheques by a banker are generally nominal, save in the instances which the law has come to regard as exceptional; and these constitute the exceptions with which we will deal anon.
Direct and/or natural damage arising from a breach of contract by a banker to honour the cheque of his customer apart, there is, however, also the serious likelihood of considerable danger to the reputation of a customer and generally to his business; (if he – the customer – is engaged in business), People generally, whether or not in business, do not deal with a person whose cheques are not paid, although it is conceded that instances of disinclination to deal with such a person more readily abound in the field of business. As it is always extremely difficult to have an accurate estimate of the extent of damage under this “head”, it has, therefore been laid down by a long line of cases beginning with that of Marzetti vs. Williams (1830) 1 B & Ad 415 that damages in such cases are “at large”, which is to say that in such cases a jury may within reason make an award of any such sum as they consider the circumstances of the breach of contract or dishonour of cheque warrant although there has been no proof of any actual loss (i.e special damage) to the customer. In this case of Marzetti (supra) in which a trader sued his bankers for wrongful dishonour of cheque although there was no evidence to show that the plaintiff had sustained any injury from the banker’s mistake, Lord Tenterden C. J., remarked:
“I cannot forbear to observe that it is a discredit to a person and therefore injurious in fact, to have a draft refused payment for so small a sum, for it shows that the bankers had very little confidence in the customer. It is on act particularly calculated to be injurious to o person in trade” (See 109 E. R. 842; and (1830) 1 B Ald. 415 at 424).”
Again in McGregor on Damages, 16th edition, paragraphs 1302 pages 852 to 853 appears the following statement of the law:
“1300. However, what calls for separate consideration of bankers is a different type of breach of contract, namely, a banker’s failure to honour his customer’s cheque and drafts when he has moneys of the customer to meet them. The important characteristic of such cases is that the plaintiff can recover substantial damages for injury to his credit without proof of actual damage. This was established, where the plaintiff was a trader, by Rolin vs. Steward (1854) 14 C.B. 595, the leading case, Marzetti vs. Williams (1830) 1 B. & Ad.415 had already established that damages for injury to credit could be awarded in such a case, but gave nominal damages as only the question of liability was in issue. The clearest explanation appears in Lord Birkenhead’s speech in Wilson vs. United Countries Bank (1920) A.C. 102 at 112 where he said that:
“The ratio decidendi in such cases is that the refusal to meet the cheque, under such circumstances, is so obviously injurious to the credit of a trader that the latter can recover, without allegation of specific damage, reasonable compensation for the injury done to his credit.”
Subsequently in Gibbon vs. Westminster Bank (1939) 2 K.8.882 it was held that the rule did not apply where the customer was not a trader, so that actual injury to credit would have to be proved to give an entitlement to more than nominal damages, but that limitation has now been departed from by the Court of Appeal in Kpohraror vs. Woolwich Building Society (1996) 4 All E.R. 119 C.A, Evans L.J., in a judgment with which his brethren agreed, there said:
“History has changed the social factors which moulded the rule in the nineteenth century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is ‘so obviously injurious to (his) credit, that he should recover, without allegation of special damage, reasonable compensation for the injury done to his credit 2…The credit rating of individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities, as it is for those engaged in trade, and it is notorious that central registers are now kept, I would have no hesitation in holding that what in effect is a presumption of some damage arises in every case, in so far as this is a presumption of fact.”
In my humble view whether the Respondent founded his cause of action in breach of contract or negligence which is in tort the fact is that his demand to withdraw money was wrongly dishonoured due to the unauthorized withdrawals from the account by staff of the appellant and the Respondent sustained injury and was entitled to be damnified by way of general damages. The Respondent could have sued in breach of contract or in tort arising from the negligence of the bank in the way and manner the account was operated by her staff. In Agbanelo vs. IJBN Ltd. (supra) the plaintiff issue d a bank draft in favour of the Manufacturers of Biscuit to be drawn at the defendant’s branch at Warri. When the Manufacturer presented the cheque it was not honoured but returned with the endorsement “1st signature irregular”. The plaintiff founded an action in the High Court in defamation and negligence not in breach of contract claiming that these words were defamatory of him and that the draft was negligently issued. The plaintiff claimed damages. The claims were dismissed by the learned trial Judge and affirmed by the Court of Appeal. On a further appeal to the Supreme Court the dismissal of the claim founded on defamation was affirmed. The Supreme Court however found negligence proved. The question that arose was the damages that the learned trial Judge should have assessed in the circumstances of the claim founded in negligence. The suit was remitted to the trial Court for assessment of damages. Again in Eagle super Pack (Nig.) Ltd. vs. ACB Plc (2006) 19 NWLR (Pt.1013) 20 the plaintiff paid the defendant bank all the necessary fees/charges to procure letters of credit so he could remit money to his Japanese businessmen overseas. The defendant breached the agreement hence the plaintiff founded his action for damages in negligence and alternatively in breach of contract. In the light of the above the Supreme Court held at page 48 paragraphs “E” to “F” as follows:
“…The plaintiffs claim was expressed to be in negligence. However, where a plaintiff who brings an action in tort is driven to rely on a contract to sustain his suit, the action must be seen as on action in contract. In this case, the foundation of the plaintiff’s claim is the agreement between it and the defendant for the latter to open for plaintiff a letter of credit. The suit is therefore one in contract. In order to succeed, the plaintiff must call evidence of the contract itself and of the breach.”
In this appeal the Respondent set out the reliefs sought in paragraph 39 of the Statement of Claim. A careful scrutiny of paragraph 39 i(a) of the Statement of claim will show that the claim for N850,000.00 was predicated on “the amount fraudulently and negligently withdrawn from the plaintiffs saving account.” This sum having been credited into the Respondent’s account is no longer an issue in this Court. The claim for N4.25million Naira in paragraph 39(i)(b) is for “the contract sum awarded the plaintiff for the supply of 50 units Qlink Motorcycles by Iko Local Government Council”. The claim is founded in breach of contract. Paragraph 39(c) of the Statement of claim pleaded the sum of “N1.25 million being the profit the plaintiff lost for failure to supply the above bikes as a result of the Defendant’s negligence.” This head of claim is founded in tort. Paragtaph 39(ii) in which the Respondent claimed N2million Naira general damages is “for the several frustration, embarrassment, inconveniences, loss of clientele, reputation, credibility, integrity and business opportunities all resulting from the Defendant’s fraudulent conduct and negligence.” It can be seen that the Respondent founded his claim in breach of contract and negligence, namely, tort. This has the support of the authorities cited by learned Counsel to the appellant and the Respondent. In Odulaja vs. Hadad (1973) 11 SC 357 at 361 the Supreme Court held that the award of special and general damages was more appropriate in torts rather than breaches of contract. See also Omonuwa vs. Wahabi (1976) 4 SC 37 at 47-48.I am of the humble opinion that the Respondent was entitled to the N500,000.00 general damages the learned trial Judge awarded him for appellant’s refusal to honour his demand to withdraw his money in his account when he had sufficient funds. The reasons His Lordship gave are supported by the decided authorities and book writers I have alluded to.
The next question to be determined was whether the Respondent was able to plead and lead oral or documentary evidence to be entitled to the special damages and loss of profit awarded by the learned trial Judge. Learned Counsel to the appellant’s argument is that the failure to call Ike Mike Merchandise to testify and be cross-examined rendered the Respondent’s evidence hearsay and no probative value can be attached to Exhibit “F”. The classic definition of hearsay evidence is set out in the judgment of the Committee of the Privy Council in Subramaniam vs. The Prosecutor (1956) 1 WLR 965 at 969 as follows:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
The reason is set out in Black’s Law Dictionary, 9th edition, page 790 as follows:
“Hearsay rule (1896). The rule that no assertion offered as testimony can be received unless it is or has been open to test by cross-examination or an opportunity for cross-examination, except as provided otherwise by the rules of evidence, by Court rules, or by statute, The chief reasons for the rule are that out of Court statements amounting to hearsay are not made under oath and are not subject to cross-examination.”The mere tendering of Exhibit “F” per se does not show where its maker undertook to supply the 50 Qlink Motorcycles by collecting One Million Naira deposit pending final payment. The maker of the undertaking should have been called to testify and be subjected to cross-examination.
In Agwuneme vs. Eze (1990) 3 NWLR (Pt.137) 242 Onu, JCA (as he then was) held at page 254 that:
“It is settled law that documentary evidence can only be tendered through its maker. See Opolo v. The State (1977) 11 SC 6; Okpara vs. Federal Republic of Nigeria (1977) 4 SC 53; See also section 90(1)(a) of the Evidence Act.”
In Ojukwu vs. Governor of Lagos State (1985) 2 NWLR (Pt.10) 806 Nnaemeka-Agu, JCA (as he then was) held at page 818 that:
“Now as the writer of the above letter never testified or swore to the correctness of the contents it was inadmissible in evidence in view of Section 90(1)(a) and (b) of the Evidence Act..”
It is true that when Exhibit “F” was tendered in the lower Court learned Counsel appearing for the appellant did not object. In Omega Bank Nigeria Plc v.. O.B.C. Ltd. (2005) 1 SC 150 Musdapher, JSC (as he then was) held at page 172 thus:
“The law is settled that a court can only act upon evidence that is legally admissible. It cannot and it has no discretion to admit and act upon evidence which is legally inadmissible, even with the consent of the parties, see Kale vs. Coker (1982) 12 SC 252; Alade vs. Olukade (1926) 2 SC 185. But in my view there is nothing in the Evidence Act that makes Exhibit “P29″ inadmissible. It is a written statement made by the respondent adverse to its interest, See S.S.N.L. vs. Eyeape (1976) 9-10 SC.135. Where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible by law, See Etim vs. Ekpe (1983) 1 SCNLR 120.”
But I am guided by the opinion of Niki Tobi, JSC in Omega Bank Nig. Plc vs. O.B.C. Ltd. (supra) where His Lordship stated at page 176 lines 12 to page 177 lines 1-7 thus:
“Assuming I am wrong, (and I do not think so), let me take the issue of non-maker of the document tendering it. It is the general principle of law that a maker of a document is expected to tender it in evidence, There ore two basic exceptions to this principle of law: (1) The maker is dead. (2) The maker can only be procured by involving the party in so mach expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer questions on it, the non-maker of it is not in such a position. In the latter situation, a Court of law will not attach any probative value is as good as the mere paper on which is made. After all probative to the document and a document that a Court does not attach any probative value is the root of admissibility of evidence. I should not be understood as saying that documentary evidence cannot be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker. See Igbodim vs. Obianke (1976) 9-10 SC 179. After all relevance is the key to admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document admitted are two different things, See Ayeni ys. Dada (1978) S SC 35.
As a matter of law, I regard Exhibit “P6″ as hearsay as it relates or affects Pw1 who tendered it. It could not have been hearsay if it was tendered by either of the two makers or writers…”
Edozie, JSC also held in Omega Bank Nig. Plc vs. O.B.C. Ltd. (supra) at page 179 to wit:
“It ought to be borne in mind that although a document may be admissible in evidence under the provisions of Evidence Act, the weight to be attached to its contents is another matte4 for every piece of evidence that has been admitted in the course of the proceedings is subject to be tested for credibility, weight or cogency by the trial Court before it becomes acceptable documentary evidence: See Ayeni vs. Dada (1978) 3 SC 35 at 61. Furthermore, where a document is pleaded to establish a particular fact, it can only be used to establish that fact and cannot be used to prove another fact which is not an issue in the pleadings: Onwumere vs. Agwunede (1987) 3 NWLR (Pt.62) 673 at 681-682.”
Learned Counsel to the Respondent cited Savannah Bank of Nigeria Ltd. vs. Alhaji K.A. Salami (1996) 7-10 SCNJ 187 that Exhibit “F” was not hearsay. But in that case the plaintiff wrote Exhibit “J” to the Bank and the guarantor of the loan testified at the trial as Pw2 to confirm what the bank manager had told the plaintiff which is not the situation here. Exhibit “F” is the quotation/current price for 50 Qlink Motorcycles given to the Respondent by Mike Ike Merchandise dated 8th December, 2006. Though rightly admitted as an exhibit, as the maker did not testify to be cross-examined, the exhibit constitutes hearsay in a document having no probative value. See Seismograph Service Ltd. vs. Eyuafe (1976) 9-10 SC 135 at 151-153; Bosah vs. British American Insurance Co. (1972) 1 NMLR 298.
Furthermore, anticipated profits are in the form of special damages. They must be pleaded and strictly proved at the trial. See Odumosu vs. ACB (1976) 11 SC 55. In Uwa vs. ITC (1988) 12 SCNJ (Pt.1) 102 the anticipated profit the plaintiff could have made if the defendant had performed her contractual obligation was based on a price list prepated by persons who were not called to testify as witnesses. Wali, JSC held at page 112 of the judgment as follows:
“An expert may give his opinion upon facts which are either admissible or proved by himself or other witness in his hearing, at the trial or are matters of common knowledge. But where the opinion is based on report of facts, these facts, unless they are within his personal knowledge, must be proved independently, that is by calling witnesses who are personally concerned in the transaction. See Ramsdale vs. Ramsdale 173 L.T. 393 and R vs. Somers (1963) 1 WLR 1306 and paragraph 1279 – Phipson on Evidence, 12th edition.
So even if Exhibit “29”- containing the projected profits the appellant could have made on the sale of the exercise books on the projected figures of pupils in both primary and post primary schools for the years 1978/1979 by the Federal Ministry of Education Lagos, was by itself admissible, no one was called from the ministry who was concerned in the production of the figures to prove the truth of those facts. The projection figures in Exhibit “1” bear no authenticity that they were obtained from the Federal Ministry of Education.
Exhibit “29” was therefore based on hearsay evidence which was reduced into writing and the learned trial judge should have attached no weight to it, much less to rely on same to make the fantastic award of N465,676.08 as loss of profit, The damage awarded is merely speculative, See Overseas Construction Company Ltd. vs. Wariboko (1985) 12 SC 158 and Panalpina world Transport Ltd. vs. Wariboko (1975) 2 SC 29.
As contained in Exhibit “29” – Auditors Report, the calculated loss of profit the appellant would have sustained flowing from the Respondent’s inability to perform his own side of the contract was not based on any existing contract between the appellant and any other party and which was known to the Respondent. There was in fact no evidence of any contract. The Court of Appeal was perfectly justified in disallowing this head of damage as it is speculative. The authorities cited and relied upon by the appellant are not opposite. Both grounds 1 and 2 of the Grounds of Appeal fail and are dismissed. ”
In Attorney-General of Oyo State vs. Fairlakes Hotels Ltd. (1989) 5 NWLR (Pt.121) 255 the projected profit was also based on feasibility studies tendered and marked Exhibit “B” whose makers were not called. Agbaje, JSC held at page 284 paragraph “B” that:
“…In short, in the absence of oral evidence in support of the projected gross profits in Exhibit “B”, based on assumption, it is nigh impossible to come to any conclusion as to the accuracy of the projected profits.”
At page 286 paragraphs “B” – “G” Obaseki, JSC held as follows:
“To entitle a claimant to judgment of the Court for loss of profit, the special damage must be strictly proved. Dumez (Nigeria) Ltd. vs. Patrick Nwaka Ogboh (1972) 1 All NLR (Pt.1) 24.
The only evidence given in support of this item of claim came from Mr. Apara. In his testimony, he said:
“If the project will not proceed, I claim damages itemized in my paragraph 9 of my reply. Item 4 on paragraph 9 was based on feasibility study.”
Coker, JSC In Oshinjinrin & ors. vs. Alhaji Elias & ors. (1970) 1 All NLR 153 and the Privy council in Abel Boshalli vs. Allied Commercial Exporters Limited (1961) All NLR (Pt.4) 917 have set out the standard and quality of proof required to establish such item of claim. Hearsay evidence to which class feasibility study Exhibit “B” falls do not qualify for acceptance as legal evidence that can sustain such an award.
There was no oral evidence of this loss of profit and the lack of this piece of evidence is total to the award made by the Court of Appeal.
Mr. Apara who put the document report of feasibility study Exhibit “B” was not the maker of the document. Exhibit “B” on the face of it, does not claim the probative value ascribed to it by the court of appeal. This is evident from the caveat inserted by the authors of the report which reads:
“We do not warrant that the estimates will be attained.”
This lack of warranty together with the declared purpose for which the feasibility study was prepared (which appears on page 2 of Exhibit “8”) cannot but have a fatal disabling effect on the whole case of the respondent in this appeal.”
Moreover, in Roe vs. Minister of Health (1954) 2 Q.B. 66 at 85 Lord Denning L.J., held that:
“…in every case is whether there was a duty of care owed to the plaintiff and the test of duty depends, without doubt, on what you should foresee. There is no duty of care owed to a person when you could not reasonably foresee that he might be injured by your conduct: See Hay or Bourhill vs. Young [(1943) A.C. 92]; Woods us. Duncan (1946) A.C. 401, 437, per Lord Russell and per Lord Porter.
…a negligent person should be liable, within extent of his liability is to be found by asking the one question: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it; but otherwise not.”
In McGregor On Damages, 16th edition, page 120 paragraph 192 the learned authors have summed it up as follows:
“192, Causation does not answer all the problems of remoteness, Even after it has been resolved that the defendant’s act is the cause in law of the plaintiff’s injury, the plaintiff may yet be unable to recover damages for that injury if it is an injury to an interest which is not protected by the particular tort. ”
The learned trial Judge erred by holding at page 93 lines 22 to page 94 lines 1-5 of the printed record thus:
“From Pw1 evidence in chief and the answers elicited from him under cross-examination, Exhibit “F” is in the nature of an informal memorandum, a price list. The evidence of the supplier’s willingness to supply on the payment of an initial deposit of N1 million is therefore admissible. This is one of the exceptions to Section 132(1) of the Evidence Act, That price of evidence is admissible under Section 132(2) of the Evidence Act, See also Savannah Bank Ltd. vs. Sacami (1996) 9-10 SCNJ 187.
The evidence of the supplier’s willingness to supply the motorcycles upon the payment of the initial deposit of N1 million remained unshaken and uncontradicted throughout the case. When this is related to the event of 11th December, 2006 at the defendant’s wellington Bassey Way Branch, Uyo where the plaintiffs withdrawal slip for the sum of N1 million was not honoured by the defendant, I am able to find as follows…”
The above holding is founded on hearsay without probative value and should have been expunged from the record.
In my humble view the sum of N1.1 million awarded the Respondent as special damages and loss of profit is too remote; this was never contemplated by the Respondent when the appellant went to withdraw the sum of One Million Naira from his account.
The awards are set aside. I resolve issues one, two and three in favour of the appellant.

ISSUE FOUR:
Counsel to the appellant’s contention under issue four is that the Respondent admitted in the Statement of Claim that he spent money on “Public relations” to secure the contract. That it was not within the province of the learned trial Judge to give effect to the contract tainted with illegality. Learned Counsel referred to paragraphs 5 and 20 of the Statement of claim as pleading illegality. That this rendered the contract with Ika Local Government Council illegal and unenforceable in a Court of law. Counsel cited Black’s Law Dictionary, 7th edition page 1245 for the definition of “PR”. That where money is expended by a party to secure a contract that constitutes bribery and corruption the learned trial Judge should have been guided by the provisions of Section 25(1) of the Corrupt Practices and other Related Offences Act Cap C31 Laws of the Federation of Nigeria, 2004 to decline to entertain this suit. Counsel cited Alao vs. ACB Ltd. (1998) 3 NWLR (pt.542) 339 at 355; Pan Bisbilder (Nig.) Ltd. vs. FBN (2000) 1 NWLR (pt.642) 684 at 695; FBN Ltd. vs. Moba Farms Ltd. (2005) 8 NWLR (Pt.928) 492 at 515; Osifo vs. Okigbo Community Bank Ltd. (2006) 15 NWLR (Pt.1002) 260 at 279 and C.D.C. (Nig.) Ltd. vs. SCOA (Nig.) Ltd. (2007) 6 NWLR (Pt.1030) 300 at 366 where the Supreme Court held that no body should be allowed to take the benefit of his wrong doing. It was argued that what is admitted in the pleadings requires no further proof, citing Z.P. Industry Ltd. vs. Samotech Ltd. (2007) 16 NWLR (Pt.1060) 315 at 339 and Akinlayun vs. Oshoboja (2006) 12 NWLR (Pt.993) 60 at 92. Learned Counsel urged that issue four should be resolved in favour of the appellant.
The learned Counsel to the Respondent replied that as no evidence was adduced in the Court of trial to prove the amounts expended as “PR” to secure the contract, those paragraphs of the pleading were deemed abandoned. Reference was made to New Nigerian Bank vs. Denclang Ltd. (2004) All FWLR (pt.228) 606 at 659. Besides, the appellant did not plead illegality, citing Alao vs. ACB Ltd. (1998) 3 NWLR (Pt.542) 339 at 347. It was further contended that the meaning ascribed by the appellant to the abbreviations “PR” which is “Public Relations” was erroneous, citing Black’s Law Dictionary, 7th edition page 1245. That there was no evidence of what constituted “Public Relations” in the circumstances. The Court was urged to resolve issue four against the appellant.
Paragraphs 5 and 20 of the Statement of claim pleaded the following facts:
“5. Plaintiff avers that the contract to supply the said motorbikes to the council had a time limitation and was to be done on or before the 27th day of December, 2006 as it was meant to be used for “PR” by council within the yuletide period.
20. The Plaintiff avers that he expended a good amount of money as “PR” to secure the said supply contract as well as in his several efforts to execute the contract. ”
No iota of evidence was adduced at the trial to prove the amount of money expended by the Respondent as “Public Relations” to support the averments in paragraphs 5 and 20 of the statement of claim. In the alternative the Respondent could have adduced evidence to prove those averments in the statement of claim. Paragraphs 5 and 20 of the statement of claim are deemed abandoned. See Ojikutu vs. Fella 14 WACA 628; Uwegba vs. Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317; Balogun vs. Amubikanhuan (1935) 3 NWLR (pt.11) 27. Accordingly, the paragraphs ought to have been struck out by the learned trial Judge. See Dako II vs. The District Commissioner Birrim (1936) 3 WACA 68 at 70. They are irrelevant to the determination of the real questions in controversy. It is immaterial that the appellant admitted the paragraphs in paragraphs 2, 16, and 17 of the Statement of defence. Admission should be based on personal knowledge. See Seismograph Services Ltd. vs. Eyuafe (1976) 1 FWLR 162 at 167; Bamiro vs. SCOA (1941) 7 WACA 150 and Nii Okai II vs. Nii Ayikai II (1946) 12 WACA 3t at 36.
In Comptroller of Customs vs. Western Electric Co. Ltd. (1965) 3 All E.R. 599 Lord Hodson held at page 601that:
“..If a man admits something of which he knows nothing it is of no real evidential value…”
In Whall & Anor. vs. Bulman (1953) 2 Q.B. 198 Lord Denning M.R. held at page 202 that:
“…The parties cannot agree on a false hypothesis and ask the Court to adjudicate upon it…”Moreover, the phrase “Public Relations” means “1. The business of creating or maintaining a company’s goodwill or good public image, 2, A company’s existing goodwill or public image – Abbr, PR.” See Black’s Law Dictionary, 9th edition, page 1351. In the Introduction to the Law of Contracts, 3rd edition (1981) page 257 by P. S. Atiyah the learned author wrote that:
“It must not be thought that illegality in the law of contract is co-terminus with illegality in the criminal law, for a contract may be illegal without involving any breach of the criminal law at all”
In my humble view illegality was not established. Issue four is resolved against the appellant.
Accordingly, the appeal partly succeeds on issues one, two and three. For the avoidance of doubt the award of special damages and loss of profit is set aside. I affirm the N500,000.00 general damages awarded to the Respondent. Parties to bear their respective costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree with the reasoning and conclusion. I also abide by all the consequential orders contained therein.

ONYEKACHI A. OTISI, J.C.A.: I have had the opportunity of reading the Judgment of my learned Brother, Joseph Tine Tur JCA in this appeal. All issues raised by the parties for determination have been, characteristically, sufficiently resolved therein. I shall only make a few comments for emphasis.
A banker’s duty to exercise reasonable care and skill in regard to its customer’s affairs is undoubted. The law is that a bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to operations within its contracts with its customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the customer: and includes interpreting, ascertaining and acting in accordance with the instructions of the customers. see: Agbanelo v UBN. Ltd (2000) CLR 7(b) (SC), (2000) 7 NWLR (Pt.666) 534.
On the same question of the relationship of a banker and its customer Idigbe, J.S.C. in Balogun v. National Bank of Nigeria Ltd. (1 978) 3 S.C. 155 at pages 163 and 164 stated as follows:
“The role or predominating business of banker in the business of banking which consists in the main in the receipt of monies on current or deposit account and the payment of cheques drawn by, as well as the collection of cheques paid in by a customer – See also Atkin, L.J. Joachimson v. Swiss Bonk Corporation (1921) 3 K.B. 110 of 127. Therefore, the receipt of money from or on account of his customer by a banker constitutes the latter the debtor of the former (Foley v. Hill (1848) 2 H. L. Cas 28); and the banker undertakes to pay any part of the money thus due from him to the customer against the written orders of the customer (Joachimson v. Swiss Bank Corporation (supra). Accordingly the relation so constituted is that of principal and agent and therefore, a cheque drawn on the banker by the customer represents the order of the principal to his agent to pay, out of the principal’s money in his hands, the amount stated on the cheque to the payee endorsed on the cheque.Therefore, it has long been established that refusal by a banker to pay a customer’s cheque when, he holds in hand an amount, equivalent to that endorsed on the cheque, belonging to the customer amounts to a breach of contract for which the banker is liable in damages”.
Funds, amounting to N850,000.00, were withdrawn from the account of the respondent, domiciled with the appellant, without the authority of the respondent, and by certain staff of the appellant. As a result of these unauthorized withdrawals, the respondent’s cheque was wrongfully dishonoured, because there were now insufficient funds to pay the cheque. As rightly held in the lead judgment, the wrongful dishonour of the respondent’s cheque, when he had an amount equivalent to that sum endorsed on the cheque, constitutes a breach of contract for which he is entitled to compensation.
The general rule for measuring damages for breach of contract was established by the case of Hadley v. Baxendale (1854) 9 Exch. 341, which is that the party in breach is liable in damages in the amount which flows directly and naturally from his failure to keep his own part of the contract or bargain provided that such damage could reasonably have been within the contemplation of the parties of the time when the contract was made. See also: Balogun vs. National Bank of Nigeria Ltd (supra); Agbanelo v UBN. Ltd (supra); UBA vs. Folarin & anor (2003) 7 NWLR (PT.818) 18. The object of damages in breach of contract is to put the claimant in the position he would have been in if the contact had been satisfactorily performed. See: Afribank Nig Plc vs. A. I. Investment Ltd (2002) 7 NWLR (PT.765) 40 of 71-72. And in order to enable judicious assessment, the particulars and evidence in support of of awards are required. See: Co-operative Development Bank Plc vs. Essien (2001) 4 NWLR (PT.704) 479 at 492: AG Leventis Nig Ltd vs. Akpu (2002) 1 NWLR (PT.747) 182 at 211.
The respondent had claimed inter alia,
39(i)(c) The sum of N1.25 million being the profit the plaintiff lost for failure to supply the above bikes as a result of the Defendant’s negligence.
The trial court awarded the respondent the sum of N1.1 million as special damages –
“…being what he could have earned from the contract but for the negligence of the defendant.
My Learned Brother in the lead Judgment has rightly stated that anticipated profits are in the form of special damages. They must be pleaded and strictly proved of the trial. However in this regard, the respondent fell short. The evidence proffered has been evaluated in the lead Judgment, and, I am in agreement with the conclusions reached therein. I also set aside the award of N1.1 Million as special damages.
The respondent had claimed general damages of N2 million for:
“…the several frustration, embarrassment, inconveniences, loss of clientele, reputation, credibility, integrity and business opportunities all resulting from the Defendant’s fraudulent conduct and negligence”
The learned trial court, having made a finding that the respondent is a businessman, awarded general of damages of N500,000.00. I agree with the reasoning of the trial court, which is affirmed in the lead Judgment.
The other issues raised have been dealt with by my learned Brother, and I have nothing further to add. I abide by the orders made in the read Judgment.