GROUND CONDITION LTD v. FBN PLC
(2022)LCN/16758(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, December 30, 2022
CA/B/729/2019
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal
Between
GROUND CONDITION LIMITED APPELANT(S)
And
FIRST BANK OF NIGERIA PLC RESPONDENT(S)
RATIO
WHETHER OR NOT A BANK MUST HONOR A CHEQUE ISSUED BY ITS CUSTOMERS
It is also trite that a bank is bound to honour a cheque issued by its customers to it if the customer has enough funds to satisfy the amount payable on the cheque. Failure to so honour the cheque would render the banker liable in damages. See ALLIED BANK (NIG) LTD V AKUBUEZE (1997) 6 NWLR PART 509 P. 374. IGUH JSC. In FIRST AFRICAN TRUST BANK LTD vs. PARTNERSHIP INVESTMENT COMPANY LTD. (2003) 18 NWLR PART 851 P.35 had this to say on this point:
“Now a banker without a doubt is bound to pay cheques drawn on him by a customer in legal form provided he has in his hands at the time, sufficient and available funds for the purpose or provided the cheques are within the limits of an agreed overdraft. See LONDON JOINT STOCK BANK vs. MACMILLAN AND ARTHUR (1918) A.C. 777 At 789; H.L. JOACHIMSON vs. SWISS BANKS CORPORATION (1921) 3 K.B. 110 AT 127; UNION BANK OF NIGERIA LTD. Vs. NWOYE (1996) 3 NWLR (Pt. 435.
It needed to be emphasized that there must be sufficient funds to cover the whole amount of the cheques presented for in the absence of special arrangement, there is, as a general rule, no obligation on the banker to pay any part of the cheques for an amount exceeding the available balance. The banker only contracts with the customer to honour cheques when he has “sufficient” and “available” funds in hands. See CAREW vs. DUCKWORTH (1969) L.R. 4 EXCH. 313; JOACHIMSON vs. SWISS BANK CORPORATION (supra)” PER AWOTOYE, J.C.A.
THE POSITION OF LAW ON THE DAMAGES TO BE AWARDED WHERE THERE IS A BREACH OF CONTRACT BY A BANKER TO ITS CUSTOMERS
What then is the measure of damages to be awarded? According to ADEKEYE JSC. In STANDARD TRUST BANK LTD vs. ANUMNU (2008) 14 NWLR PART 1106 Page 125.
“in recent times, and in majority of cases the Courts have not only exercised their discretion in actions for breach of contract by a banker to its customer in favour of awarding substantial damages, but they are also now awarded “at large” “within reason” of any such sum as they consider in the circumstance of the breach of contract or dishonour of cheque warrant although there is no proof of actual loss. Hirat Aderinsola Balogun V. National Bank of Nigeria 1978 All NLR 63 at pg 70; Salami V. Savannah Bank Nigeria Limited (1990) 2 NWLR pt 130 pg 106. Courts have equally taken into consideration the low purchasing power of the Naira or global inflation. Usman V. Abubakar (2001) 16 WRN 160 at pg 175. In the case of Access Bank Plc V Maryland Finance Company and Consultancy Service (2005) 3 NWLR pt 913 pg 460- the Court held at pg 476-477 paragraphs F-H that “the measure of damages in an action against a banker for breach of contract to honour a cheque that has been drawn by a customer against his account would depend on the status or station in life of customer.” If the customer is able to prove that by reason of the said breach he has suffered considerable damages to his reputation and generally to his business, he will be entitled to substantial damages.” In African Nig Plc V. A.I. Investment Ltd (2002) 7 NWLR pt. 765 pg 40, the Court held that “Where a banker wrongfully dishonours a customer’s cheque the successful plaintiff is entitled to damages arising from the breach of contract and damages for libel.” PER AWOTOYE, J.C.A.
TUNDE OYEBAMIJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by Appellant against the judgment of High Court of Justice of Edo State holden at Benin City delivered on 03/02/2017.
By paragraph 23 of its statement of claim, the plaintiff claimed as follows:
“WHEREOF, the Plaintiff claims against the Defendant as follow:
a. The sum of N328,158,833.70 (Three Hundred and Twenty-Eight Million, One Hundred and Fifty-Eight Thousand, Eight Hundred and Thirty-Three Naira, Seventy Kobo) being special damages suffered by the Plaintiff for breach of contract in refusing to honour its cheque regularly drawn on its account.
b. The sum of N50,000,000.00 (Fifty Million Naira) being General Damages for breach of contractual obligation to the plaintiff in respect of the contract in honour of cheque No. HC0046898198 for N2,175,000.00 (Two Million, One Hundred and Seventy-Five Thousand Naira).”
In response to the claim, the defendant filed its Statement of Defence which contained 24 paragraphs.
Hearing later commenced.
After hearing the parties, the learned trial Judge entered judgment against the claimant in the following terms:
“Having said the foregoing, I found as fact that the claimant neglected to go to any of the Branch of Defendant to fill a confirmation form as instructed by the Defendant. The claimant admitted in his Evidence in Chief and stated he received phone calls from the Branch Manager of the Defendant. I find as fact that the Defendant was not negligent in the instant case. I find no merit in his suit and same is accordingly dismissed. Cost of N50,000.00 in favour of the Defendant.”
Dissatisfied with the above decision, the claimant Appellant vide its Notice of Appeal filed on 15/03/2017 attacked the judgment on six grounds.
GROUNDS OF APPEAL
GROUND ONE
The learned trial Court erred in law when he shifted the burden of establishing the existence of the requirement of an additional requirement of confirmation of payment in writing on the Appellant as opposed to the Respondent.
GROUND TWO
The learned trial Court erred in law when he misunderstood and misapplied the concept and meaning of “Mandate” issued by the Customer to the banker.
GROUND THREE
The learned trial Court erred in holding that because Exhibits H and J were unexecuted proposals, they do not have validity of written contracts between the Appellant and the Niger State Government and therefore held that no such contract existed.
GROUND FOUR
The learned trial Court erred in law when it failed to hold that the Respondent was negligent in refusing to honour a duly and properly issued cheque in Exhibit A when there was a sufficient fund in Appellant’s account.
GROUND FIVE
The learned trial Court’s judgment is against the weight of Evidence.
The record of appeal was subsequently compiled and transmitted to this Court. Parties later filed and exchanged briefs of argument.
Learned counsel to the Respondent in his Notice of Preliminary Objection filed on 21/03/2022 prayed for an order striking out this appeal for being incurably defective and incompetent.
The grounds of the application are:
a. Grounds I-IV contained in the Notice of Appeal are argumentative and narrative and are thus incompetent.
b. Ground V contained in the Notice of Appeal is incompetent because the particulars are unconnected with and unrelated to the ground of appeal.
c. Ground VI contained in the Notice of Appeal is deemed abandoned as no competent issue for determination has been (or can be) distilled from the ground alone same being the omnibus ground of appeal.
d. The writ of summons by which this action was commenced was not issued by the registrar of the High Court of Edo State (the trial Court) which stripped the trial Court of the jurisdiction to entertain the suit.
e. This Honourable Court cannot entertain an appeal which rises from a matter in which the trial Court acted without Jurisdiction.
SUBMISSIONS ON PRELIMINARY OBJECTION
Learned counsel to the Respondent submitted that the grounds of appeal are not competent and no competent issue could be distilled therefrom. He cited Adah v. ADAH (2001) 2SC1 AT 6.
He submitted further that the writ of summons was incurably defective as it was not issued by the Registrar of the lower Court. He cited KIDA V. OGUNMOLA (2006) 13 NMLR (PT.997) 337 and other cases.
I have carefully considered the submissions of learned counsel on both sides on the preliminary objection.
When is a ground of appeal incompetent? ONNOGHEN JSC (as he then was) answered this question in this way in COMMERCE BANK PLC & ANOR VS EKPERI (2007) 3 NWLR PART 1022 p.493.
“It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision appealed against and should constitute a challenge to the ratio of decision on appeal”
Besides, a ground of appeal that is so inelegantly and illegibly crafted that it cannot be understood is a vague ground and is incompetent. See OLORUNTOBA & ORS VS ABDURAHEEM & ORS. (2009) 13 NWLR PART 1157 page 83.
ADEKEYE JSC, on this point opined thus:
“By virtue of Order 8 Rule 2(4) of the Supreme Court Rules, no ground of appeal which is vague or general in terms and which discloses no reasonable grounds of appeal shall be permitted. Vagueness of a ground of appeal may arise where it is couched in a manner which does not give allowance for its being understood or where what is stated there is so uncertain and robs it of any form of intelligibility. It may also be vague when the complaint is not defined in relation to the subject matter or the particulars are clearly irrelevant to the grounds.”
See also ORDER 7 RULE 4 of the COURT OF APPEAL RULES 2021 which states:
“Any ground which is vague or general in terms or which discloses no reasonable grounds of appeal shall not be permitted save the general ground that the judgment is against the weight of the evidence …”
I shall view the grounds of appeal in this appeal in the above light.
What is important in a ground of appeal is that it should specifically and clearly identify the point being attacked in the judgment appealed against in a way that the Respondent is not confused or deceived as to what is being attacked. The grounds of appeal of the Appellant in my view are not ambiguous and inexact. Each of them attacks the live issues in the judgment appealed against. I hold that they are competent and valid in the circumstance.
Now to the objection on the Court’s lack of Jurisdiction because of the alleged Writ of Summons. The grouse of the objector on this point was that the Writ of Summons was not signed by the Registrar of the High Court of Justice before issuance.
I have carefully examined this objection. In truth, Order 6 Rule 2(1) of High Court Civil Procedure Rules makes it mandatory for every originating process (a Writ of Summons inclusive) to be signed and sealed by the Registrar of the lower Court. The Registrar then after signing the writ of summons under ORDER 6 RULE 3 file the Writ, note on it the date of filing and identify the action with a suit number.
Where the Registrar has fixed a suit number for a writ of summons, it presupposes that the writ has been signed and sealed by virtue of Section 168(1) of the Evidence Act 2011. The Section reads:
“Where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formed requisites for its validity were complied with”
I will invoke the provision of Section 168 (1) of the Evidence Act in favour of the Appellant. See also OGBUANYINYA & ORS VS. OKUDO & ORS (1990) 4 NWLR PT. 146 P. 151.
Also, this Writ of Summons was filed in 2011; Statement of Claim was subsequently filed. The defendant, on whom the writ of summons must have been served, filed Statement of Defence. Hearing commenced, counsel addressed the Court on conclusion of hearing and the learned trial Judge entered judgment without it being raised that the writ of summons was invalid. ORDER 5 RULES 2 & 3 of the Edo State High Court Civil Procedure Rules states thus:
“2. Where AT ANY STAGE in the course of or in connection with any proceedings, there has been by anything done or left undone, been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps.
3. The Judge shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.”
It is too late for the Respondent to raise an objection to the validity of the writ of summons at this belated time. He took several steps after becoming aware of the irregularity. He is deemed to have waived his right to so object.
I hold that the preliminary objection lacks merit. They are dismissed.
MAIN APPEAL
The Appellant’s Brief was prepared by MONDAY AGIENOJI while the Respondent’s Brief was prepared by CHUKWUEBUKA S. OKEKE
SUBMISSIONS OF THE COUNSEL
APPELLANT’S BRIEF OF ARGUMENT
ARGUMENT ON ISSUES
Learned Counsel to the Appellant submitted that the Respondent has a duty to honour the cheque and that Respondent had breached the customer and the banker relationship for failure to honour the cheque. The counsel cited BALOGUN VS. NATIONAL BANK OF NIGERIA LTD (1978) 3 SC, 155; SALAWU V. UNION BANK LTD. (1986) 4 NWLR (PT 38) 901
Learned Counsel to the Appellant contended that any banking innovation introduced by the respondent must operate within the banking law and procedure stipulated by the Central Bank of Nigeria, who is vested with the power to regulate all the activities of the Commercial Banks. He relied on FEDERAL MORTGAGE FINANCIAL LTD V. HOPE OF OFFIONG EKPO (2003) 45 WRN 134 at 136 RATIO 3 &11. He urged the to resolve the above issue in favour of the Appellant.
RESPONDENT’S BRIEF OF ARGUMENT
ARGUMENT ON ISSUE
Learned Counsel to the Respondent submitted that there was no breach of contract at all because cheque confirmation is the practice of the banker and customer relationship. He cited SECTION 131 -134 OF EVIDENCE ACT, 2011; NAMMAGI V. AKOTE (2021) 3 NWLR (PT. 1762) 170 at 1880 D-E
Learned Counsel to the Respondent submitted that the Appellant is not entitled to any damages because claim is speculative and lacks in merit. He cited OMEGA BANK (NIG) PLC V. O.B.C. LTD (2005) 8 NWLR (PT. 928)547at 584 C-D. He urged the Court to dismiss the appeal.
RESOLUTION OF ISSUES
I shall adopt the two issues crafted for determination by Appellant as I consider them apt for the just determination of the appeal.
ISSUE ONE
WHETHER IT WAS RIGHT FOR THE TRIAL COURT TO HOLD THAT THE RESPONDENT DID NOT BREACH THE TERMS OF CONTRACT BETWEEN IT AND THE APPELLANT DESPITE FAILING TO HONOUR A PROPERLY ISSUED CHEQUE EVEN WHEN THERE WAS SUFFICIENT FUNDS IN THE APPELLANT’S ACCOUNT.
ISSUE TWO
WHETHER IT WAS RIGHT FOR THE TRIAL COURT TO WILFULLY REFUSE, FAIL AND/OR NEGLECT TO AWARD IN FAVOUR OF THE APPELLANT GENERAL DAMAGES AND SPECIAL DAMAGES FOR BREACH OF CONTRACT FOR WRONGFULLY DISHONOURING THE APPELLANT’S CHEQUE IN SPITE OF OVERWHELMING EVIDENCE ON PRINTED RECORDS QUALIFYING THE APPELLANT FOR SUCH AWARD AS CLAIMED.
The above two issues can be condensed into one which I hereby reframe as follows;
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE HELD THAT THE BRANCH MANAGER OF THE DEFENDANT WAS NOT NEGLIGENT AND TO HAVE DISMISSED THE CASE OF THE PLAINTIFF.
I shall view this appeal in the light of this sole issue which I consider wide and apt for the just determination of this appeal.
In resolving this sole issue I shall reproduce the relevant portions of the adoption statements on oath of the claimant on the one hand and NORESE EHANIRE. The Relationship Manager of the Defendant.
The claimant, Engineer Elijah Ihogbo by his statements on oath sworn to, 17th January, 2013 deposed inter alia as follow in paragraph 4-14
“4. That the Claimant opened and operated a current with the Defendant with account number: 1102010038566 now account number 2000708221 at Kings Square Branch Benin City.
5. That the claimant sometime in October 2010 had Business transaction with its creditor, one Gerik Associates on the basis of which the claimant through its managing Director issued a cheque for service rendered by the said Gerik Associate to the tune of N2,175,000.00 (Two Million One Hundred and Seventy Five Thousand Naira).
6. That the said cheque was dated 08/10/2010 with cheque number HC0046898198.
7. That the said Gerik Associates paid the cheque aforesaid into its account with the First City Monument Bank for collection.
8. That the said First City Monument Bank in order to secure the payment of the cheque sent the Claimant’s cheque for collection through the inter bank clearing system to the claimant bank First Bank Nigeria Plc at Kings Square Branch Benin City.
9. That prior to the presentation of claimant’s cheque to the defendant for payment, Claimant had about 5,989,478.81 (Five Million Nine Hundred and Eighty-Nine Thousand, Four hundred and Seventy-Eight Naira Eighty one kobo) in its current account which is more than sufficient to meet the cheque issued to Gerik Associates.
10. That at the time the cheque issued to Gerik Associates arrived through the clearing system to the Defendant bank for payment, Claimant was in Niger State negotiating a procurement and partnership contract to the tune of N328,158,833.70 (Three Hundred and Twenty-Eight Million One Hundred and Fifty-Eight Thousand Eight Hundred and Thirty-Three Naira Seventy Kobo) through its Managing Director.
11. That prior to the incident aforesaid particularly at the opening of the current account with the Defendant, it gave the Defendant a clear and specific mandate regulating the operation of its account authorising Defendant to honour all cheques issued against its account where its signature is regular endorsed, stamped, sealed and dated and that such cheques need no further reference to the claimant.
12. That when the Defendant recovered the said cheque through the inter-bank clearing system rather than pay or honour the cheque, its Branch Manager started disturbing the claimant’s CEO, Engineer Ikogho with several Telephone calls intimating him of the arrival of the said cheque seeking clearance and authorization for the payment of the cheque.
13. That in the said telephone conversation with the Defendant’s Branch Manager, the claimant’s CEO gave a clear and specific authorisation to the Defendant’s Branch Manager confirming to him that he issued the said cheque and thereby authorised the Defendant’s Branch Manager to honour and/or pay the said cheque.
14. That despite the clear authorization to the Defendant, it still refused to honour the said cheque but instead returned it unpaid with the reason ‘cheque not valid for clearing drawer confirmation required’”
Norense Ehanire in his adopted statement on oath deposed in paragraphs 4-15 as follows
“4. I know the claimant is a customer of the Defendant at it Kings Square Branch Benin City Branch where the claimant maintains current account No. 2000708221
5. I do not know whether the claimant had any business transaction with Gerik Associates.
6. It is true that claimant issued a cheque for 2,175,000.00 to Gerik Associate drawn on the claimant’s said account.
7. The cheque was sent for collection by First Monument Bank PLC to the Defendant bank. It was returned unpaid by the defendant as the claimant failed, refused or neglected to furnish the defendant with a written confirmation of the cheque despite repeated demands by the Defendant’s Manager on his telephone conversations with the claimant’s Managing Director requiring such written confirmation of the cheque to be made by the claimant.
8. In banking practice, all cheques of N200,000.00 and above issued by customers of the defendant bank must be confirmed in writing by them to enable the capturing of the cheques’ details into the defendant’s system for security reason and protect the mutual interest of the bank and its customers.
9. The mandates of all the defendant’s customers’ accounts are subject to banking practice prevailing from time to time.
10. The claimant’s shortcoming in not furnishing the defendant with a written confirmation of the cheque caused the return of the cheque unpaid by the defendant to First Monument Bank PLC.
11. I do not know the mood of Gerik Associates or what transpired between Gerik Associates and the claimant concerning the returned cheque.
12. The defendant does not know the mood of Gerik Associates or what took place between it and the claimant.
13. The claimant deliberately failed to represent to the defendant through the drawee’s bank, or at all, the returned cheque for payment in compliance with the prevailing banking practice which required a written confirmation of the cheque.
14. The defendant received the claimant’s solicitors, Osawaru Yesufu & Co’s demand letter dated 14-10-2010 asking that the cheque be paid by the Defendant but the defendant unavoidably return the cheque unpaid as the said solicitors are not signatories to the claimant’s account”.
The facts of this appeal are in the light of the above very simple. The Defendant did not deny that the Claimant was his customer who operated account number: 1102010038566 now is account number 2000708221 at Kings Square Branch Benin City. The defendant did not deny that the claimant issued a cheque for N2,175,000.00 to GERIK ASSOCIATES drawn on the claimant’s account which it failed to honour because all cheques issued by customer of the bank must be confirmed in writing by them in line with banking practice. Hence the action that has led to this appeal.
The defence of the defendant rested solely on the above banking practice. A person who alleges banking custom must prove it. See UNION BANK OF NIGERIA LTD. Vs IFEATU AUGUSTINE NWOYE (1996) LPELR 3388; (1996) 3 NWLR Pt 435 PG 135. According to UTHMAN MOHAMMED JSC in NWOYE’S case:
“It has long been established through several decisions that whoever alleges banking custom must prove it. See MISSRI vs BRITISH BANK OF WEST AFRICA an unreported decision of this Court, Appeal No. 301/66 delivered on 30th June, 1967”
It is also trite that a bank is bound to honour a cheque issued by its customers to it if the customer has enough funds to satisfy the amount payable on the cheque. Failure to so honour the cheque would render the banker liable in damages. See ALLIED BANK (NIG) LTD V AKUBUEZE (1997) 6 NWLR PART 509 P. 374. IGUH JSC. In FIRST AFRICAN TRUST BANK LTD vs. PARTNERSHIP INVESTMENT COMPANY LTD. (2003) 18 NWLR PART 851 P.35 had this to say on this point:
“Now a banker without a doubt is bound to pay cheques drawn on him by a customer in legal form provided he has in his hands at the time, sufficient and available funds for the purpose or provided the cheques are within the limits of an agreed overdraft. See LONDON JOINT STOCK BANK vs. MACMILLAN AND ARTHUR (1918) A.C. 777 At 789; H.L. JOACHIMSON vs. SWISS BANKS CORPORATION (1921) 3 K.B. 110 AT 127; UNION BANK OF NIGERIA LTD. Vs. NWOYE (1996) 3 NWLR (Pt. 435.
It needed to be emphasized that there must be sufficient funds to cover the whole amount of the cheques presented for in the absence of special arrangement, there is, as a general rule, no obligation on the banker to pay any part of the cheques for an amount exceeding the available balance. The banker only contracts with the customer to honour cheques when he has “sufficient” and “available” funds in hands. See CAREW vs. DUCKWORTH (1969) L.R. 4 EXCH. 313; JOACHIMSON vs. SWISS BANK CORPORATION (supra)”
Now the Respondent who relied on banking practice did not prove it. He who asserts must prove. See Section 136(1) of the Evidence Act 2011. It is also a fact within the special knowledge of the Respondent. See Section 140 of the Evidence Act 2011. The Respondent failed to tender circulars, guidelines from Central Bank as adduced evidence of banking experts on its alleged practice.
What then is the measure of damages to be awarded? According to ADEKEYE JSC. In STANDARD TRUST BANK LTD vs. ANUMNU (2008) 14 NWLR PART 1106 Page 125.
“in recent times, and in majority of cases the Courts have not only exercised their discretion in actions for breach of contract by a banker to its customer in favour of awarding substantial damages, but they are also now awarded “at large” “within reason” of any such sum as they consider in the circumstance of the breach of contract or dishonour of cheque warrant although there is no proof of actual loss. Hirat Aderinsola Balogun V. National Bank of Nigeria 1978 All NLR 63 at pg 70; Salami V. Savannah Bank Nigeria Limited (1990) 2 NWLR pt 130 pg 106. Courts have equally taken into consideration the low purchasing power of the Naira or global inflation. Usman V. Abubakar (2001) 16 WRN 160 at pg 175. In the case of Access Bank Plc V Maryland Finance Company and Consultancy Service (2005) 3 NWLR pt 913 pg 460- the Court held at pg 476-477 paragraphs F-H that “the measure of damages in an action against a banker for breach of contract to honour a cheque that has been drawn by a customer against his account would depend on the status or station in life of customer.” If the customer is able to prove that by reason of the said breach he has suffered considerable damages to his reputation and generally to his business, he will be entitled to substantial damages.” In African Nig Plc V. A.I. Investment Ltd (2002) 7 NWLR pt. 765 pg 40, the Court held that “Where a banker wrongfully dishonours a customer’s cheque the successful plaintiff is entitled to damages arising from the breach of contract and damages for libel.”
The contention of the Appellant is that as a result of the breach of contract he could not secure the contract with the Niger State Government. He deposed further in his adopted statement on oath (paragraph 17, 18 and 23- 25).
“17. That the claimant’s CEO/Managing Director was at this time in the middle of negotiation to conclude a contract with the Niger State Government to the tune of N328,158,833.70 (Three Hundred and Twenty-Eight Million One Hundred and Fifty-Eight Thousand Eight Hundred and Thirty-Three Naira Seventy Kobo) in line with the procurement and partnership contract.
18. That as if the threat from Gerik Associates aforesaid was not enough, it proceeded to write a letter requiring Claimant to make payment to it within 24 hours of receipt of the letter. The said letter was delivered to the claimant’s head office at Benin City.
23. That because the claimant’s CEO left and abandoned the meeting with the officers of the Niger State Government abruptly, it could not conclude the presentation and signing of the contract with the Niger State Government with the result that claimant completely lost out on the contract with the Niger State Government because of the Defendant negligence of duty.
25. The Defendant on several occasions has refused to honour the mandate or standing order made by the claimant to the effect that all cheques issued by Claimant should be honoured without request for identification, an example is the transaction on the cheque issued by the Claimant on the 18-02-2006 where the defendant refused to honour the cheque issued to his daughter Ese-Ikogho resulting to serious financial consequence a Claimant’s CEO had to cut short his journey and rush to the Defendant before he could get some money for his daughter.
It is for the Claimant/Appellant to prove that he had a transaction with the Niger State Government which was aborted as a result of failure of the Respondent to honour the cheque in question. He ought to have done more in this regard. The evidence adduced in this regard is inadequate and no Court can act on it without indulging in speculation. It is trite that speculations are not allowed in law. See IKENTA BEST (NIGERIA LTD) vs. RIVERS STATE (2008) 6 NWLR PART 1084 Page 612.
However, there is no doubt that the claimant is entitled to general damages for the breach of contract. It is clear that the bank could have confirmed the Cheque on phone as there was no evidence before the lower Court that the confirmation must be in writing.
I award the sum of N500,000.00 (Five Hundred Thousand Naira) as general damages in favour of the Appellant in the circumstance.
I resolve the sole issue as adopted by me in favour of the Appellant.
This appeal succeeds, it is hereby allowed as it has merit. The judgment of High Court of Justice of Edo State holden at Benin City delivered on 3/2/2017 is hereby set aside. I award the sum of N50,000.00 (Fifty Thousand Naira) as cost in favour of the Appellant.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
SYBIL NWAKA GBAGI, J.C.A.: I agree.
Appearances:
MONDAY AGIENOJI For Appellant(s)
CHUKWUEBUKA OKEKE For Respondent(s)
