FIRST BANK (NIG) PLC v. CHIEF CHARLES ORAKWUE AZIFUAKU (2016)

FIRST BANK (NIG) PLC v. CHIEF CHARLES ORAKWUE AZIFUAKU

(2016)LCN/8150(CA)

RATIO

EVIDENCE: BURDEN OF PROOF: WHICH OF THE PARTIES HAS THE BURDEN TO PROVE THE ESSENTIAL INGREDIENTS OF NEGLIGENCE AND THE ESSENTIAL INGREDIENTS OF NEGLIGENCE

The law is settled that negligence is a question of fact and the burden is primarily on the plaintiff to prove the essential ingredients of negligence by cogent and credible evidence.

It is settled by a long line of cases that the essential ingredients of negligence are follows:

(1) The existence of duty of care owed the plaintiff by the defendant.

(2) Breach or failure to attain the standard of care prescribed by the law.

(3) Damage or injury suffered by the plaintiff and the connection with the breach of the duty to take care.

EVIDENCE: HEARSAY; WHAT AMOUNTS TO HEARSAY AND WHETHER IT IS ADMISSIBLE

In AROGUNDADE v. THE STATE (2009) 6 NWLR (PT.1136) PAGE 165 AT 181-182 (G-B) the Supreme Court stated what amounts to hearsay evidence as follows: “In the case of SUBRAMANIAN v. PUBLIC PROSECUTOR (1956) 1 WLR 965 AT 969, hearsay evidence was described in the following terms:- “Evidence of a statement made to a witness 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.” per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; THE WHETHER DOCUMENTARY EVIDENCE SHOULD BE USED TO ASSESS ORAL EVIDENCE AND WHETHER THE EVALUATION OF DOCUMENTARY EVIDENCE IS THE EXCLUSIVE PRESERVE OF THE TRIAL COURT

It is settled law that where there are oral and documentary evidence, documentary evidence should be used as the hanger with which the oral evidence is assessed. It is also settled law that evaluation of documentary evidence is not the exclusive preserve of the trial Court, the appellate Court is in as good a position as the trial Court to evaluate the documentary evidence led in a case and draw its own conclusions or make its own findings since that evaluation would not entail assessment of credibility of witnesses. See OLAGUNJU v. ADESOYE & ANOR, (2009) 9 NWLR (PT. 1146) PAGE 225, IWUAHA & ANOR. v. NIPOST LTD. (2002) 8 NWLR (PT. 822) PAGE 308, AGBAKOBA v. INEC (2008) 18 NWLR (PT. 1119) PAGE 489 SC, MOMOH & ORS. v. UMORU & ORS. (2011) LPELR – 8130 (SC). per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

TORT: VICARIOUS LIABILITY; WHAT THE CLAIMANT MUST ESTABLISH FOR THE PRINCIPLE OF VICARIOUS LIABILITY TO BE APPLIED

The law is settled that for the principle of vicarious liability to be applied, the claimant must establish the following:

(1) The liability of the wrongdoer

(2) That the wrongdoer is a servant of the master

(3) That the wrongdoer acted in the course of his employment.

See IFEANYICHUKWU (OSONDU) LTD. v. SOLEH BONEH LTD. (2000) 5 NWLR (PT. 656) PAGE 322 AT 349-344 (H-E). per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

COURT: WHEN IS THE APPELLATE COURT ENTITLE TO RE-EVALUATE AND RE-CONSIDER THE EVIDENCE LED AT THE TRIAL COURT

Where the trial Court has failed to properly evaluate the evidence led which led to drawing wrong conclusions as in this case, the appellate Court is entitled and perfectly justified in re-evaluating and re-considering the entire evidence in order to arrive at a just decision. See GARUBA v. YAHAYA (2007) 3 NWLR (PT. 102) PAGE 390, EDJEKPO v. OSIA (2007) 8 NWLR (PT. 1037) PAGE 635, AYANRU v. MANDILAS LTD (2007) 10 NWLR (PT. 1043) PAGE 462. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

TORT: THE TORT OF NEGLIGENCE; WHAT THE PLAINTIFF MUST SHOW IN AN ACTION FOR NEGLIGENCE

The law is settled that in action for negligence,the plaintiff must show that he suffered damage as a result of the defendant’s negligence. In I.M.N.L. v. NWACHUKWU (2004) 13 NWLR (PT. 891) PAGE 543, the Supreme Court held that “Negligence alone does not give a cause of action, damage alone does not give a cause of action, the two must co-exist” see also IYERE v. BENDEL FEED FLOUR MILL LTD (2008) 7 – 12 (SC). The damage suffered by the plaintiff must be established by cogent and credible evidence. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

In The Court of Appeal of Nigeria

On Thursday, the 4th day of February, 2016

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The 1st respondent is the director of the 2nd respondent. The 3rd respondent is an employee of the 2nd respondent. The respondents as the plaintiffs at the Court below instituted suit no. O/203/99 at High Court of Anambra State against the appellant herein and claimed the sum of Fifty Six Million, Eight Hundred and Forty-four thousand Four Hundred and Sixty Naira (N56,844,460:00) as special and general damages for alleged negligent action of the appellant. The summary of the respondents’ case at the Court below is that they had a long standing relationship with the appellant as a result of which the respondents developed confidence in the defendant’s ability to handle their remittances regarding business dealings with their associates in Hong-Kong. In the course of a transaction with their business associate in Hong-Kong, the 2nd respondent remitted a sum of twelve thousand US dollars (USD 12, 000, 00) to the 3rd respondent’s account with Hang Seng Bank in Hong-Kong on 13/8/98 through the appellant. On 19/9/98, the 3rd respondent arrived Hong-Kong for the purpose of transacting business on behalf of the 2nd respondent but could not collect the sum of USD12, 000:00 (Twelve thousand dollars) remitted to his account through the appellant. The Bank from which the remitted money was to be collected in its reply to a letter written by the 1st respondent stated that the 3rd respondent’s name was wrongly spelt. The money was eventually paid into the 3rd respondent’s account in Hong-Kong on 13/10/98. According to the respondents, the 3rd respondent and Mr Ambrose Ilonze incurred a lot of expenses on hotel bills, feeding and communication expenses. The defendant filed a defence to the claim and denied the allegation of negligence in handling the remittance. After hearing both parties, the Court below in a considered judgment delivered on 29th June, 2006 entered judgment against the appellant as follows:

“In the instant case because of the mistake in the name of the 3rd plaintiff the money remitted to him could not be received until after 2 months; yet this money is for a business transaction and payment of goods. There was a lot of time wasting and receiving the money remitted for payment of goods booked after 2 months was not within a reasonable time. It is not even reasonable time even if it was received within one month for such a transaction. The plaintiffs in the circumstances have suffered losses and damages.

Having evaluated the evidence before me and on a very careful review of the evidence adduced in this case the plaintiffs have failed to prove by strict evidence the Special damage claimed. The claim for the Special damages therefore fails.

On the issue of general damages there are sufficient, credible and satisfactory evidence to show that the plaintiffs incurred losses and damages as a result of the negligent acts of the defendant.

On the totality of the evidence before me and putting same on the imaginary scale by way of evaluation base on credible, convincing and positive evidence in support of this case, the scale tilts in favour of the plaintiffs in the long run. See OLALEYE v. ADEJUMO (2005) 10 NWLR (PT. 933) PAGE 429 @ 437. In the circumstances the plaintiffs’ case on General Damages against the defendant succeeds. Accordingly the Plaintiffs are awarded N20,000,000.00 (Twenty Million Naira) as general damages against the defendant. A cost of N30,000.00 (Thirty thousand Naira) is awarded to the plaintiffs inclusive of their out of pocket expenses.”

The appellant is aggrieved by the judgment and has appealed to this Court on seven (7) grounds. The grounds of appeal as contained in the Amended Notice and Grounds of Appeal filed on 10th December, 2009 are as follows:

GROUND ONE: ERROR IN LAW

The learned trial judge erred in law in awarding the Plaintiffs general damages of N20 million.

GROUND TWO: ERROR IN LAW

The learned trial judge erred in law in holding that the nature of business between the Plaintiffs/Respondents and the Defendant/Appellant was for $171,000.00 (One Hundred and Seventy-One Thousand United States Dollars).

GROUND THREE: MISDIRECTION IN LAW

The learned trial judge misdirected himself in law when he held that the purported remittance of $60,000.00 to Ambrose Ilonze (P.W. 2) by Societe Generale Bank formed part of the banking transactions involving the Plaintiffs and the Defendant bank.

GROUND FOUR: ERROR IN LAW

The learned trial judge erred in law in holding that the 2nd and 3rd Plaintiffs are proper parties to this suit.

GROUND FIVE: ERROR IN LAW

The learned trial judge erred in law in holding that the Defendant was negligent in the handling of the transfer of $12,000 USD.

GROUND SIX

The judgment is against the weight of evidence.

GROUND SEVEN ERROR-IN-LAW:

The learned trial Judge erred in law and came to a wrong decision which occassioned gross miscarriage of Justice when he held that the contract between the 1st Plaintiff and the Defendant is so intertwined that it does not end with the 1st Plaintiff who applied to the Defendant for the remittance of $12,000.00 US Dollars to the 3rd Plaintiff in Hong Kong but the money must reach the 3rd Plaintiff timeously for settlement of the deposit of goods meant for the 2nd Plaintiff.”

The appellant’s brief of argument was filed on 12th February, 2010 pursuant to the Order of this Court made on 9th February, 2010. The respondents’ brief was filed on 15th May, 2010. Appellant’s reply brief was filed on 20th September, 2010 and deemed as properly filed on 14th January, 2013. The appellant’s counsel formulated the following issues for determination:

“1. Whether the learned trial Judge was right when he held that the nature of the contract between the 1st Respondent and the Appellant bank is so intertwined that it does not end with the 1st Respondent who applied to the Appellant bank for the remittance of $12,000.00 US Dollars to the 3rd Respondent in Hong Kong but that the money must reach the 3rd Respondent timeously for the settlement of the deposit for goods meant for the 2nd Respondent worth $171,000.00 US Dollars.

2. Whether the learned trial Judge was right when he held that the purported remittance of $60,000.00 to Ambrose Ilonze (PW2) by Societe Generale Bank formed part of banking transaction between the Respondent and the Appellant bank.

3. Based on facts and circumstances of this case whether the learned trial Judge was right when he held that the Appellant bank was negligent in the handling of transfer of $12,000.00 US Dollars to the 3rd Respondent in Hong Kong.”

The respondents’ counsel formulated the following issues for determination:

1. “Whether the learned trial Judge was correct when he held that the contract between the Appellant and the Respondent was intertwined as it does not end with the 1st Respondent who applied to the Appellant bank for the remittance of $12,000 US Dollars to the 3rd Respondent in Hong Kong but that the money must reach 3rd Respondent timeously for settlement of the deposit of goods meant for the 2nd Respondent (Ground 6).

2. Whether the learned trial Judge was correct when he held that the Appellant was negligent in the handling of transfer of $12,000 US Dollars to the 3rd Respondent in Hong Kong (Ground 5)”

By a notice of Preliminary objection dated 16th January, 2013 and filed on the same day, the respondents raised objection to some of the grounds appeal as follows:

1. “That the appellant did not formulate any issue/issues for determination from grounds 1, 4 and 5 of the Amended Notice and Grounds of Appeal dated 10/12/09 and filed on the same day.

2. The original ground 3 dealing with misdirection of law did not arise from the judgment of the Court”.

The argument in support of the objection was incorporated into the respondents’ brief of argument. Counsel submitted that since the appellant did not formulate any issue for determination from grounds 1, 4 and 5, the said grounds of appeal are deemed abandoned. He referred to EBUKUYO v. OBOLO (2007) 7 NWLR (PT. 1033) PAGE 217 AT 233, A. G. BENDEL STATE v. AIDEYAN (1989) 4 NWLR (PT. 118) PAGE 665 (B-C). In respect of ground 3, counsel submitted that it did not arise from the judgment of the Court and it is contrary to Order 6 Rule 3 of the Court of Appeal rules. Therefore issue 2 distilled from ground 3 of the appeal is also incompetent. Counsel further submitted that there is no where the Court stated or made a finding that the transaction formed part of the banking transactions involving the appellant and the respondent, the finding of the Court is that there are two transactions involving two banks, Societe Generale for $60,000,00 and the appellant which was for $12,000,00. He urged the Court to strike out ground 3 of the appeal and issue 2 distilled there from.

In his response contained in the appellant’s reply brief of argument, the appellant’s counsel did not answer the submissions of the respondents’ counsel in respect of ground 1. He conceded that no issue was formulated in respect of ground 4 of the appeal.

I have examined ground 1 of the appeal which deals with the propriety of award of general damages when the Court held that the respondents failed to prove special damages. No issue was formulated in respect of that ground of appeal. It is settled law that where no issue is formulated by an appellant in respect of any ground of appeal, that ground of appeal is deemed abandoned. The same principle of law applies to a situation where an issue formulated by an appellant does not relate to any ground(s) of appeal. See ADELEKAN v. ECY-LINE NV (2006) 12 NWLR (PT. 993) PAGE 33, NWANKWO v. E. D. C. S. U. A. (2007) 5 NWLR (PT. 1027) PAGE 377 (2007) 5 NWLR (PT. 1027) PAGE 377. Since no issue was formulated in respect of grounds 1 and 4 of the appeal, those grounds are deemed abandoned and are hereby struck out. Issue 3 formulated by the appellant’s counsel is clearly distilled from ground 5 of the appeal. The objection in respect of ground 5 is therefore overruled.

I have carefully perused the entire judgment of the Court below, I agree with the respondents’ counsel that the Court did not state that the remittance of $60,000.00 formed part of the banking transactions involving the appellant and the respondents. What the Court said was that the alleged remittance of $60,000.00 by Societe General Bank and the $12,000:00 remittance were in respect of the same transaction between the respondents and their business associate in Hong Kong which is clearly different from saying that the two remittances are within the same banking transactions. The law is settled that a ground of appeal must emanate from or relate to the ratio decidendi of the judgment appealed from. Any ground of appeal which does not arise or flow from the ratio decidendi or decision appealed against is incompetent and shall be struck out. Accordingly Ground 3 and issue 2 distilled there from are hereby struck out.

Having struck out grounds 1, 3 and 4, the appellant is left with only grounds 2, 5, 6 and 7 of the appeal. I have considered the grounds of appeal and the issues formulated by counsel to both parties. In my view, the issue for determination in this appeal is whether on the entire evidence led in this case, the Court below was right when it held that the appellant was negligent in its handling of the remittance of $12,000.00 to the 3rd respondent in Hong-Kong.

The appellant’s counsel submitted that the respondent who tendered Exhibit N to show that there was misspelling in the 3rd respondent’s name could not prove who misspelt the name and who eventually effected the correction of same. He further submitted that the origin and authenticity of Exhibit N which the respondents relied on to show the misspelling of the 3rd respondent’s name is doubtful because it was made before Exhibit M, the document of enquiry to which Exhibit N is said to be a reply and the evidence of Pw3 that the 3rd respondent brought Exhibit M to him in Nigeria contradicts the pleading in Paragraph 14 of the Amended Statement of claim that the 1st respondent received the fax, Exhibit N from Hang-seng Bank. He submitted that when the evidence at trial is at variance with the pleadings such evidence goes to no issue and should be discountenanced. He referred to AKANMU v. ADIGUN (1999) 7 NWLR (PT. 304) PAGE 218. Counsel argued that assuming without conceding that the misspelling was by the agent of the appellant, in this type of commercial transaction, the agent bank or correspondent bank is a mere commission agent. The appellant bank its principal has no authority over the agent bank and therefore, cannot be held liable for its negligent act or omission since the agent is not the servant of the appellant bank. He relied on EGINTON v. READER (1936) 1 ALL ER 7, BOWSTEAD ON AGENCY, 13TH EDITION, PAGE 427 ART, 135.

He submitted that the award of Twenty Million Naira (N20 Million) against the appellant is unjustified and has occassioned a miscarriage of justice because there was no documentary evidence from Asin Freight Forwarder of Hong-Kong rescinding the oral contract between the company and the respondents coupled with the admission of PW3 that the deposit of $72,000 (Seventy Two Thousand U.S Dollars) had been paid to the company and the goods received by the respondents. He referred to ECHO ENT. LTD v. STANDARD BANK OF NIG. LTD. & ANOR. (1989) 4 NWLR (PT. 116) PAGE 509.

In response, the respondents’ counsel submitted that the evidence from both the appellant and the respondents confirm that the name of the 3rd respondent was misspelt and the evidence of PW1 is enough to prove the case of negligence against the appellant as it is direct and unequivocal about what happened. He referred to Section 77 (b) of the Evidence Act. He further submitted that the burden is on the appellant to clarify how and what led to the misspelling of 3rd respondent’s name which burden the appellant failed to discharge as it is settled that where a plaintiff alleging a fact pleads and produces evidence in proof of that fact, the onus will shift to the defendant to adduce evidence in rebuttal. He referred to OGUGU v. ARMEL TRANSPORT LTD (1974) NSCC 169. Counsel also submitted that the mere fact that it was pleaded that Exhibit N was sent through facsimile while PW3 said PW1 brought it by hand is immaterial as it is settled that it is not every contradiction or inconsistency that destroys the plaintiffs case or prosecution’s case. The contradiction or inconsistency must be substantial and fundamental to the main issue before the Court. He referred to AKPA v. STATE (2007) 2 NWLR (PT. 1019) PAGE 500.

Counsel argued that the contention of the appellant’s counsel that the appellant is not liable for the act or omission of the agent or corresponding bank is not tenable in law because in an international commercial transaction like the one under consideration, the following three contracts must be separately considered:

(a) The contract between the buyer and the seller.

(b) The contract and between buyer and issuing bank.

He referred to AKINSANYA v. U.B.A LTD (1986) 4 NWLR (PT. 35) PAGE 273 AT 302-304, SGBN LTD v. ELEGANZA IND. LTD (2004) 8 NWLR (PT. 875) PAGE 432 AT 445. He urged the Court to hold that the appellant, a principal has to be vicariously liable for the act of its agent.

On the appellant’s contention that there was no documentary evidence from Asin Freight Forwarder to show that the contract between it and the respondents were rescinded, counsel submitted that the evidence of PW1 and PW3 that the money which was remitted was used to buy other goods which have not been sold as nobody wants them was never contradicted by the appellant, therefore the trial Court was entitled to rely and act on it. He finally submitted that the trial Court was perfectly in order when it held that the appellant was negligent in carrying out the transaction and no miscarriage of justice occurred in the judgment as the Court below evaluated the entire evidence led and came to the conclusion that the respondents made out a case of breach of duty of care against the appellant.

In his reply to the above submissions, the appellant’s counsel submitted that the admissibility of a document and the weight to be attached to the document are two different things. He referred to OMEGA BANK PLC v. O.B.C. LTD (2005) 8 NWLR (PT. 928) PAGE 547. He further submitted that since Exhibit N was an answer to an enquiry contained in Exhibit M, Exhibit N should be later in time after 30/9/98 but the contrary is the case coupled with the fact that the evidence of PW1 that he brought Exhibit N by hand to PW3 in Nigeria is at variance with the pleading that PW3 received same through facsimile in Nigeria. According to counsel, the logical conclusion is that Exhibit N was fabricated for the purposes of this case and therefore the trial Court should not have given any probative value to the document.

I have carefully perused the pleadings, the entire evidence on record, the judgment of the Court below and the remaining four grounds of appeal. There is no dispute in respect of the fact that the 1st and 2nd respondents approached the appellant for purchase and remittance of $12,000.00 to the 3rd respondent’s account in Hang Seng Bank, Hong-Kong. That request was made via Exhibit F on 13th August, 1998. There is no dispute that the money was transferred to Hang Seng Bank as agreed. The only point of dispute was whether the appellant was negligent in the handling of the remittance by misspelling the 3rd respondent’s name which caused delay in the payment of the money to the 3rd respondent by Hang Seng Bank in Hong Kong. The law is settled that negligence is a question of fact and the burden is primarily on the plaintiff to prove the essential ingredients of negligence by cogent and credible evidence.

It is settled by a long line of cases that the essential ingredients of negligence are follows:

(1) The existence of duty of care owed the plaintiff by the defendant.

(2) Breach or failure to attain the standard of care prescribed by the law.

(3) Damage or injury suffered by the plaintiff and the connection with the breach of the duty to take care.

See MAKWE v. NWUKOR (2011) 14 NWLR (PT. 733) PAGE 356, M. O. KANU SONS & CO. LTD v. F. B. N. PLC (2006) 5 SC (PT. 111 PAGE 80, U. T. B. v. OZOEMENA (2007) 3 NWLR (PT. 1022) PAGE 444 BRITISH AIRWAYS v. ATOYEBI (2014) LPELR – 23120 (SC). The alleged negligence centres on the alleged misspelling of the 3rd respondent’s name. PW1 in his evidence in chief on pages 25-26 of the record of appeal testified that Hang Seng Bank told him that there was a mistake in his name and the mistake was made by the appellant.

Under cross-examination, he said he was shown a document in which his name was misspelt. They gave him a photocopy of the document which he handed over to the 1st respondent. PW1 further testified that Hang Seng said that the appellant had corrected the mistake but he was not shown any document evidencing the correction. In my view the evidence of PW1 in respect of who misspelt his name is hearsay. It is not admissible and ought not to have been relied upon by the Court below. See Section 38 of the Evidence Act, 2011. In AROGUNDADE v. THE STATE (2009) 6 NWLR (PT.1136) PAGE 165 AT 181-182 (G-B) the Supreme Court stated what amounts to hearsay evidence as follows:

“In the case of SUBRAMANIAN v. PUBLIC PROSECUTOR (1956) 1 WLR 965 AT 969, hearsay evidence was described in the following terms:-

“Evidence of a statement made to a witness 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.”

From the above, it is clear that the purpose for which a statement made by a person to the witness is tendered in Court determines its admissibility since if the intention of introducing the evidence is to establish the truth of the statement/evidence it would be hearsay and inadmissible but would be admissible if the purpose or intention is to establish the fact that statement was made by the person concerned.”

See also BUHARI v. OBASANJO (2005) 13 NWLR (PT. 941) PAGE 1.

It is a notorious fact that banking transactions particularly transfer of money is not done orally. Most importantly, PW1 testified that he was aware that pw3 wrote Hang Seng Bank that the was not from the appellant. That evidence is confirmed by Exhibit M wherein the 1st respondent stated as follows:

“we have cross checked with our banks here and all the documents shown to us as regards the correct names of our staff are all in order. This means that even if there is any mistake, it must have emanated from other branches of the First Bank (either in Nigeria or Overseas).”

PW3 said he wrote Exhibit M to Hang Seng Bank and the bank then replied by Exhibit N. He testified as follows on pages 46 – 47 of the record of appeal:

“It is true that I wrote Hang Seng Bank in Hong Kong by Exhibit ‘M’. The bank then replied by Exhibit N. Exhibit N never reached me before I wrote Exhibit M. Exhibit N reached me by hand through my boys who went on that trip. Any inscription on Exhibit N was not made by me. I received the document as it is now. There is no place in Exhibit ‘N’ where Hang Seng Bank, Hong Kong said that the First Bank of Nigeria Plc made mistake in spelling of Carristus Onyeka Ezenwe by writing Carristus Onyeka Ezenwa”.

It is settled law that where there are oral and documentary evidence, documentary evidence should be used as the hanger with which the oral evidence is assessed.

It is also settled law that evaluation of documentary evidence is not the exclusive preserve of the trial Court, the appellate Court is in as good a position as the trial Court to evaluate the documentary evidence led in a case and draw its own conclusions or make its own findings since that evaluation would not entail assessment of credibility of witnesses. See OLAGUNJU v. ADESOYE & ANOR, (2009) 9 NWLR (PT. 1146) PAGE 225, IWUAHA & ANOR. v. NIPOST LTD. (2002) 8 NWLR (PT. 822) PAGE 308, AGBAKOBA v. INEC (2008) 18 NWLR (PT. 1119) PAGE 489 SC, MOMOH & ORS. v. UMORU & ORS. (2011) LPELR – 8130 (SC). This Court is therefore in a good stead to consider Exhibits M and N and see whether the Court below drew the right conclusions from the documents. Exhibit N is dated 20th August, 1998. It cannot be a reply to Exhibit M which is dated 30th September, 1998. There is no nexus whatsoever between Exhibits M and N. A close look at Exhibit M shows that the sender was the Bank of New York, New York (Head Office). There is no scintilla of evidence to show the connection of the Bank of New York to the transaction in this appeal and whose agent the Bank of New York was. Exhibit N is totally unreliable and cannot support the conclusion that the misspelling of the 3rd respondent’s name was due to the negligence of the appellant or that the appellant corrected the name. In the face of Exhibit M wherein the 1st respondent categorically confirmed that all the documents shown to him by the appellant in respect of the transaction was in order and without any proof that the correction was effected by the appellant, it is unsafe to conclude that the appellant was the one that misspelt the 3rd respondent’s name. The respondents who clearly admitted through PW3 that all the documents shown to him by the appellant were in order cannot turn around to assert otherwise. One more thing, the statement in Exhibit M that the mistake must have occurred in the other branches of the appellant either in Nigeria or Overseas is purely speculative. The Court does not act on speculations. The Court is entitled to act only on cogent, credible and legally admissible evidence. DW1 testified on page 50 of the record that if it is true that the defendant misspelt the name of the beneficiary, the overseas bank that received the money transferred would have quickly sent the defendant a fax message or an electronic telegraph so that the defendant would raise an amendment form to that effect. On page 51 of the record, he testified further that the first respondent approached the appellant once and told the bank about the problem being encountered in Hong Kong and that at that point the money transferred had entered the beneficiary’s account in Hang Seng Bank. That evidence was not challenged under cross-examination. DW1 under cross-examination on page 54 of the record stated that the 12,000.00 US?Dollars was transferred to the beneficiary at Hang Seng Bank through the internal division of the appellant to its correspondent bank overseas for onward delivery to Hang Seng Bank and the corresponding bank overseas was Standard Chartered Bank, London. He also stated under cross-examination that the Standard Chartered Bank in London was the defendant’s agent in the transaction. There is no scintilla of evidence to show that it was the Standard Chartered Bank that misspelt the name. For the appellant to be vicariously liable for the alleged tort of negligence, it must be proved by cogent and credible evidence that Standard Chartered Bank misspelt the 3rd respondent’s name. The law is settled that for the principle of vicarious liability to be applied, the claimant must establish the following:

(1) The liability of the wrongdoer

(2) That the wrongdoer is a servant of the master

(3) That the wrongdoer acted in the course of his employment.

See IFEANYICHUKWU (OSONDU) LTD. v. SOLEH BONEH LTD. (2000) 5 NWLR (PT. 656) PAGE 322 AT 349-344 (H-E). In the case on appeal, there is no cogent and credible evidence to prove who the tortfeasor was. Therefore, the issue of the appellant being vicariously liable did not arise. It is only when it is established that a tort has been committed, who committed it and that the tortfeasor is an employee or agent of a principal and that the tort was committed in the course of his employment that the issue of vicarious liability can arise. In IFEANYICHUKWU (OSONDU) LTD. v. SOLEH BONEH LTD. (supra) AT PAGE 44 (E-H) the Supreme Court stated the conditions for the liability of a master for the tort of his servant as follows:

“The liability of the master is dependent on the plaintiff being able to establish the servant’s liability for the tort and also that the servant was not only the master’s servant but that he also acted in the course of his employment. The learned authors of Clerk & Lindsel on Torts 14th Edition, Paragraph 237 at page 238 state the law thus:

“Liability Of master for servant.

Where the relationship of servant exists, the master is labile for the torts of the servant so long only as they are committed in the course of servants employment. The nature of the tort is immaterial and the master is liable even where liability depends upon a specific state of mind and his own state of mind is innocent.”

See also I.C.I. Ltd. v. Shatwell (supra) where Lord Pearce stated the law succinctly thus:

Unless the servant is liable, the master is not liable for his acts; subject to this, that the master cannot take advantage of immunity from suit conferred on the servant (Broom v. Morgan).”

Having considered the entire evidence led in this case, it is my view that the finding of the Court below that:

“The error in the spelling of the name of 3rd plaintiff is from the defendant whether directly from them or through their agent. The defendant has not been prudent enough and has not exercised the usual carefulness required in mandatory transfer by cross-checking the name and the amount being remitted. That was gross negligent and lack of duty of care on the part of the defendant and that has caused the plaintiffs substantial damages.”

is not supported by the evidence on record. The finding is perverse and cannot be allowed to stand. There is no evidence whatsoever to support the finding that the appellant did not cross check the name and the amount remitted. In fact Exhibit M, part of which was reproduced earlier in this judgment wherein it was stated that all the documents shown to PW3 showed that everything was in order suggests otherwise. Where the trial Court has failed to properly evaluate the evidence led which led to drawing wrong conclusions as in this case, the appellate Court is entitled and perfectly justified in re-evaluating and re-considering the entire evidence in order to arrive at a just decision. See GARUBA v. YAHAYA (2007) 3 NWLR (PT. 102) PAGE 390, EDJEKPO v. OSIA (2007) 8 NWLR (PT. 1037) PAGE 635, AYANRU v. MANDILAS LTD (2007) 10 NWLR (PT. 1043) PAGE 462.

PW1 in his evidence in chief testified that he received the money transferred to his account on 13/10/98 after the deadline given to the 1st and 2nd respondents by Asin Freight Forwarder which was to supply goods worth $171,000.00 US Dollars to them. In his evidence in chief, he said the company did not accept the late payment of the money. Under cross-examination, he said the deadline of 7/10/98 for payment of the money was agreed orally. However, PW3 in his own evidence stated that the money remitted to Asin Freights Forwarders was $72,000.00. PW1’s evidence that Asin Freight Forwarders did not accept the money is not true. So also the evidence of PW2 that Asin Freight forwarders refused bluntly to accept $60,000.00 in lieu of the agreed $72,000.00. PW3 said the money remitted was eventually used in purchasing other goods and those goods were still in the warehouse. He did not say what goods were purchased and did not present any document to prove that any goods were in any warehouse. It is not the case of the respondents that the purchase, the importation and the clearance of the other goods in Nigeria were done orally. I have considered the entire evidence led in respect of the damage allegedly suffered. The evidence is clearly unreliable as it lacks cogency and credibility. In my view, the respondents failed to prove a case of negligence either against the appellant or its agent for which the appellant is vicariously liable or that they suffered any damage. This suit is purely an exercise of gold digging.

In conclusion, I find that this appeal has merit and should succeed. Accordingly, this appeal is hereby allowed. The judgment of the High Court of Anambra State delivered in suit No. O/203/99 on 29th June, 2006 is hereby set aside in its entirely. The respondents’ claim is hereby dismissed. There shall be N50, 000, 00 costs against the respondents and in favour of the appellant.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.:I have had the benefit of reading in draft, the lead judgment of my learned brother, Justice Misitura Omodere Bolaji -Yusuff, JCA just delivered. I agree with the reasoning and conclusion that the instant appeal has merit and it should be allowed. Thus, I also find the appeal to be meritorious and it is accordingly allowed by me. I abide by the consequential orders therein, including the one on costs made in the said lead judgment of my learned brother, Bolaji-Yusuff, JCA.

EMMANUEL AKOMAYE AGIM, J.C.A.:I had a preview of the judgment delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA. I agree with reasoning, conclusions and orders therein.

Appearances

Chief Chidube Ezebilo (SAN) with him, Emeka Ezebilo, Esq.For Appellant

AND

Ben Osaka Esq. with him, N.D. Agusiobo, Esq. (Miss)For Respondent