GTB PLC v. TABIK INVESTMENTS (NIG) LTD
(2022)LCN/16763(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, March 15, 2022
CA/A/553/2012
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
GUARANTY TRUST BANK PLC APPELANT(S)
And
TABIK INVESTMENTS (NIGERIA) LIMITED RESPONDENT(S)
RATIO
INGREDIENTS TO PROVE THE TORT OF NEGLIGENCE
In law, in a claim for damages for negligence, the Claimant must plead and prove the following three main ingredients of the tort of negligence, namely;
1. The Defendant owed the Claimant a duty to exercise due care;
2. That the Defendant failed to exercise due care or had breached the duty of care;
3. The Defendant’s failure was the cause of the injury suffered by the Claimant. See MTN V. Mundra Ventures (Nig) Ltd (2016) LPELR – 40343 (CA) per Georgewill JCA. See also Olam (Nigeria) Ltd V. Intercontinental Bank Ltd (2009) LPELR 8275 (CA); Koya V. UBA Ltd (1997) 1 NWLR (Pt. 481) 41; Osigwe V. Unipetrol Ltd (2005) 5 NWLR (Pt. 918) 261.
Now, the term negligence has been variously defined but the central key that runs through all such definitions is that it is an omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do or doing something which a reasonable and prudent man would not do. Negligence is thus the failure to use such care as a reasonably prudent and careful person would use under similar circumstances or the doing of some act which a person of ordinary prudence would not have done under similar circumstances. See Black’s Law Dictionary 11th Edition at P. 1032.
Thus, once a Claimant leads evidence which creditably and cogently establishes a duty of care owed him by the Defendant, the breach of that duty by the Defendant and the resultant damages he is entitled to his claim for damages for negligence. The Claimant must prove that the injury caused him was as a result of the negligence of the Defendant, nothing else or less would be sufficient. See B. J. Ngilari V. Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626. See also Oyidiobu V. Okechukwu (1972) 5 SC 191, Orhue V. NEPA (1998) 7 NWLR (Pt. 557) 187; R. V. Tatimu (1952) 20 WLR 60.
In law therefore the proof of the existence of a duty of care, its breach and resultant damages is a sine qua non for a successful claim in negligence. In all cases in which damages is being claimed for negligence, it may be well for trial Courts to bear it in mind that negligence is a matter or question of fact and not law and thus a finding as of fact of the act of omission or commission of the Defendant must first be made before damages could be assessed. See M. O. Kanu & Sons Ltd Co. Ltd V. First Bank of Nigeria Plc (2006) LPELR 1797 (SC). See also Agbonmagbe Bank Ltd V. CFAO (1966) 1 All NLR 490; Diamond Bank Ltd V. Partnership Investment Co Ltd & Anor (2009) 18 NWLR (Pt. 1172) 67. PER GEORGEWILL, J.C.A
WHETHER OR NOT IT IS EVERY SLIP OR ERROR IN JUDGEMENT THAT MUST BE APPEALED AGAINST
The findings of the Court below that the Appellant was negligent as pleaded, claimed and proved by the Respondent against the Appellant was correct both on point of facts and the applicable principles of law. It is unimpeachable and must be allowed to stand. That is the only conclusion that can be dictated by the course of justice in this case. I therefore allow it to stand. I consider the award as special damages for conversion, on the face of the proved facts, as mere inadvertence or a very negligible slip, of the Court below, which did not in any way affected the substance of the proper evaluation and appraisal of the totality of the evidence led by the parties and correct finding of facts made against the Appellant on the claim of negligence against it by the Respondent. See Amasike V. Reg. Gen., CAC (2010) 13 NWLR (Pt. 1211) 337 at p. 375, where the Supreme Court had stated inter alia thus:
“It is not every slip committed by a Court that will result in an appeal against the judgment being allowed. An error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must occasion a substantial miscarriage of justice. Put differently, it is not every slip committed by a Judge in his judgment that will amount to a misdirection which will result in the appeal being allowed. The misdirection, to be fatal, must have occasioned a substantial miscarriage of justice. The mistake must have affected or influenced the decision appealed against before it can result in the reversal of the decision. In the instant case, even if there was any miscarriage of justice, it was not substantial to warrant the interference of the appeal Court.” PER GEORGEWILL, J.C.A
WHETHER OR NOT AN APPELLATE COURT CAN SUBSTITUTE ITS OWN VIEWS FOR THAT OF THE TRIAL COURT
An appellate Court which had not seen the witnesses testify and observed their demeanour in the witness stand should respect the views of the trial Court and should not readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court below was perverse. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 at p. 19. See also Mini Lodge V. Ngei (2010).
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja, Coram: S. E. Aladetoyinbo J., in Suit No. FCT/HC/CV/1093/2002: Tabik Investments (Nigeria) Limited & Anor V. Guaranty Trust Bank Plc delivered on 3/5/2012, in which it granted the claims of the Respondent as Claimant against the Appellant as Defendant, including the payment of N5,000,000.00 as value of the bank draft as well as the sum of N100,000,000.00 as general damages.
The Appellant was peeved by the said judgment and had promptly appealed against it vide it’s Notice of Appeal filed on 18/6/2012 on three grounds of appeal. See pages 336 – 341 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 22/10/2012. The Appellant’s brief was filed on 29/9/2020. The Respondent’s Notice was filed on 18/9/2017 but was deemed and properly filed on 20/1/2022. The Respondent’s brief was
At the hearing of the appeal on 20/1/2022, D. D. Killi Esq., learned counsel for the Appellant, appearing with Great Nnamani Esq., adopted the Appellant’s brief and reply brief as their arguments in support of the appeal and urged the Court to allow the appeal and dismiss the Respondent’s notice. On his part, John Ainetor Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments in support of the Respondent’s Notice and in opposition to the appeal and urged the Court to dismiss the appeal and uphold the Respondent’s Notice and affirm the judgment of the Court below.
By a Writ of Summons filed on 15/10/2002 and an Amended Statement of Claim filed on 11/1/2005, before the Court below, the Respondent as the 1st Claimant and one together with one Chief (Dr.) Davidson Okeke Oguocha, now deceased as 2nd Claimant, claimed against the Appellant as Defendant, for the following reliefs, to wit:
1. The sum of N5,000,000.00 being the value of cheque that the Defendant negligently and unethically allowed to be cleared by the unknown person.
2. The sum of N20,000,000.00 being the cost purchase of the said plot of land.
3. The sum of N100,000,000.00 as general damages. See pages 1 – 3 and 62 – 66 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the Respondent as Claimant before the Court below as can be gleaned from the averments in its pleadings and the evidence, both oral and documentary, led as in the Record of Appeal was that upon negotiation for the purchase of Plot 677, Wuye District, Abuja between the Respondent and agents of one Prof. Michael Ayodele Ajomo, (Chief (Dr.) Davidson O. Ogucha, the Managing Director of the Respondent but now deceased, issued a draft of N5,000,000.00 drawn as in Exhibit N2 from the account of the Respondent with the Appellant Bank and made payable to Prof. Michael Ayodele Ajomo for the purchase of the said Plot 677, Wuye District, Abuja. Upon the conclusion of payment, the Respondent entered into possession and obtained requisite building plan approval as in Exhibit G and thereafter erected a five – bedroom duplex on the said Plot but was subsequently, confronted by the real Prof. Michael Ayodele Ajomo, who denied selling the said Plot to the Respondent.
It was also the case of the Respondent that the draft of N5,000,000.00 was not paid to the true Prof. Michael Ayodele Ajomo by the Appellant Bank but was paid negligently and without due care by the Appellant to an unknown person who presented himself as Prof. Michael Ayodele Ajomo, and who had opened an account with the Appellant Bank with the said bank draft, Exhibit N2 on 12/7/2001. On 13/7/2001 and 19/7/2001 respectively the unknown person withdrew virtually the whole money in the account, which was opened without the Appellant obtaining requisite documentation and references and also no adequate enquiry was made by the Appellant with regard to the true identity, character and standing of the said Prof. Michael Ayodele Ajomo. See pages 62 – 66 of the Record of Appeal.
On the other hand, the gist of the case of the Appellant as Defendant before the Court below as can be gleaned from the averments in its pleadings and the evidence, both oral and documentary, led as in the Record of Appeal was that on 9/7/2001, Chief Oguocha authorized/directed the Appellant to issue a bank draft in the sum of N5,000,000.00 and debit the account of the Respondent held with the Appellant and made payable to Professor Michael. A. Ajomo. The Respondent also issued an open cheque in the sum of N1,600,000.00 only payable as agency and other fees to one Architect Ben Nwosu, who introduced the Respondent to the representatives of the owner. It was also the case of the Appellant that the Bank draft was paid to one Professor Michael A. Ajomo through its Kano Branch, who received value for the Bank draft and stated and identified himself to the Appellant as Professor Michael A. Ajomo and was in possession of the Bank draft for the sum of N5,000,000.00 and had applied to the Appellant for an account to be opened at the Appellant’s Kano branch with the said Bank draft.
The Appellant, being a prudent financial institution, upon being satisfied with the requirements for account opening approved the opening of an account for Professor Michael A. Ajomo, who subsequently cashed the Bank draft. In banking practice there is no prohibit of opening of an account upon the provision of only one referee and the Appellant was duly satisfied with the reference provided by the sole referee and had proceeded to open the said account upon Professor Michael A. Ajomo delivering an international passport issued by the Government of the Federal Republic of Nigeria to it, stating the holder’s name to be Prof. Michael A. Ajomo and thereby verifying his identity. It was also the case of the Appellant that it had no further obligation with respect to its account – opening procedures once the prospective account holder presented a government issued ID, such as an international passport and that the Bank draft was negotiated by it and accepted from Prof. Ajomo in the capacity of the collecting Bank and it was therefore, under obligation to pay the said Bank draft upon presentation by the payee of same, the payee having satisfied the conditions of proper identification through the presentation of an international passport. The Appellant denied being negligent in the payment and collection of the said bank draft and that it is unconscionable for the Appellant to be held responsible for the Respondent’s own negligence. See pages 74 to 78 of the Record of Appeal.
The parties field and exchanged pleadings and at the close of which, the matter proceeded to trial. On 1/8/2003, the Respondent as Claimant opened its case and in proof of its claim called six witnesses who testified as PW1, one ASP Jonah Umanah, PW2, one Chief Davidson Okeke Oguocha; PW3, one Chike Ukekew; PW4, one Ifeanyi Njoku; PW5, one Mrs. Lola Adeyemo and PW6, one Haruna Musa Adejo, and tendered some documents which were admitted in evidence as Exhibits and closed its case on 13/2/2007. On 28/10/2008, the Appellant as Defendant opened its defence and called two witnesses who testified as DW1, one Remi Kilaso, DW2, one Ibrahim Owolabi and tendered some documents which were admitted in evidence as Exhibits and closed its defence on 7/5/2009. On 30/11/2011 and 1/2/2012, the parties adopted their respective final written addresses and on 23/4/2012, the parties appeared before the Court below in respect of Exhibits C, D, E and F in relation to judgment of the Supreme Court delivered in respect of Exhibits A, B1, B2 and B3 in the Suit before the Court below. On 3/5/2012, the Court below delivered its judgment, in which it granted the claims of the Respondent against the Appellant, including an award of the sum of N100,000,000. 00 as general damages, hence this appeal. See pages 303 – 335 and 336 – 341 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the three grounds of appeal, namely:
1. Whether the award of general damages by the Court below and in favour of the Respondent in the sum of N100,000,000.00 was in the circumstances of this case, made in accordance with laid down principles of law? (Distilled from Ground 1)
2. Whether the Court below was right in awarding general damages in favour of the Respondent in the sum of N100,000,000.00 in respect of a loss for which specific damages had already been claimed? (Distilled from Ground 2)
3. Whether the Court below was right in awarding the Respondent the sum of N5,000,000.00, being damages for conversion? (Distilled from Ground 3)
In the Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the award of general damages of N100,000,000.00 by the Court below in favor of the Respondent was right having regard to the circumstances of this case?
2. Whether the Court below was right in awarding the sum of N5,000,000.00 to the Respondent as damages for conversion?
I have taken time to consider the averments in the pleadings of the parties together with the evidence, both oral and documentary as led by them as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below and I am of the view that the apt issues arising for determination in this appeal are the two issues as distilled in the Respondent’s brief, a consideration of which, in my view, would invariably involve a consideration of the three issues as distilled in the Appellant’s brief. However, I shall commence with the consideration of Respondent’s issue two as well as the Respondent’s notice together with Appellant’s issue three and resolve them in one fell swoop. Thereafter, I shall proceed to consider Respondent’s issue one together with Appellant’s issues one and two and resolve them in one fell swoop.
ISSUE TWO
Whether the Court below was right in awarding the sum of N5,000,000.00 to the Respondent as damages for conversion?
APPELLANT’S COUNSEL SUBMISSIONS
On his issue three, learned counsel for the Appellant had submitted that from the pleadings, the Respondent’s was one founded on the tort of negligence contrary to the finding by the Court below in awarding the sum of N5,000,000.00 as damages for conversion in the judgment appealed against and contended that in law such an award was manifestly erroneous as it was beyond the pleadings of the parties and the evidence led thereon resulting into the granting of a claim and relief that was neither sought, proved or warranted and urged the Court to hold that in law the parties, as well as the Court are bound by the pleadings and to allow the appeal, set aside the findings and award outside the pleadings and evidence led by the parties and dismiss the claims of the Respondent for lacking in merit. Counsel relied on Zenith Bank Plc. V. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207 at p. 230, Akinterinwa V. Oladunjoye (2000) 6 NWLR (PT. 659)92, Onwuka V. Omogui (1992) 3 NWLR (Pt. 230) 393, Makinde V. Akinwale (2000) 2 NWLR (Pt. 645) 435, Ukaegbu V. Nwololo (2009) 3 NWLR (Pt. 1127) 194, Lipede V. Sonekan (1995) 1 NWLR (Pt. 374) 668 at p. 686, George & Ors. V. Dominion Flour Mill Ltd. (1963) 1 All NLR (Pt. 71) 77. It was also submitted that in law the ingredients of the tort of conversion are separate and distinct from the ingredients of the tort of negligence in that what a party must plead and prove in order to be entitled to damages for conversion is different from that which he must plead and prove where his claim is in negligence and contended that the Respondent had a claim in negligence but no claim whatsoever in conversion as erroneously found and awarded to it by the Court below and contended that the issue is not whether or not the Appellant could be liable in conversion but whether the Appellant was called upon to defend a case of conversion of the proceeds of the Bank draft and urged the Court to hold that in law a Court can neither make a case for a party nor grant what was not claimed, even if it could on the face of the facts presented be entitled to such a relief and to allow the appeal, set aside the judgment of the Court below reached in breach of the right of the Appellant to fair hearing and dismiss the claims of the Respondent for lacking in merit. Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Veepee Ind. Ltd. Vs. Cocoa Ind. Ltd (2008) 13 NWLR (Pt. 1105) 486 at p. 512; Awoniyi V. Reg. Trustees of AMORC (2000) 10 NWLR (Pt. 676) 522 at p. 539, Yaro V. Arewa Construction Ltd. (2007) 17 NWLR (Pt. 1063) 333 at Pp. 374 – 375, Union Beverages Ltd. V. Owolabi (1988) 1 NWLR (Pt. 68) 128, The MT Makhambet V. ITISAN (2012) 2 NWLR (Pt. 1283) 184 at P. 200, Onah V. Okom (2012) 8 NWLR (Pt. 1301) 169 AT p. 192 and FUTA V. Ajidahun (2012) 14 NWLR (Pt. 1321) 583 at p. 600.
It was further submitted that the finding of conversion against the Appellant by the Court below is neither incidental nor flow naturally from the negligence claimed by the Respondent and contended that in law, the Court below had no powers to make the order or grant an award in conversion against the Appellant being not in any way incidental or flowing from the claim of negligence by the Respondent against the Appellant and to allow the appeal, set aside the perverse judgment of the Court below and dismiss the unproved claims of the Respondent for lacking in merit. Counsel relied on African Continental Bank Limited & Anor V. Ajugwo (2012) 6 NWLR (Pt.1295) 97 at P. 123, Olatunji V. Adisa (1995) 2 NWLR (Pt. 376)167.
RESPONDENT’S COUNSEL SUBMISSIONS
On issue two, learned counsel for the Respondent had submitted that the Court below was right in awarding the sum of N5,000,000. 00 to the Respondents as damages for conversion in that the claim for the value of the cheque was not only on the basis of negligence alone, but also on the basis that the Appellant unethically allowed the unknown persons to clear the cheque and contended that the Court below found as fact that the Appellant was negligent in allowing some unknown persons to clear the bank draft from the Respondent’s account and was also guilty of conversion and urged the Court to hold that since there is no appeal against these the Appellant is bound by these findings which remain valid and subsisting and to dismiss the appeal for lacking in merit and affirm the correct findings of the Court below. Counsel relied on Nwaogu V. Atuma (2013) 11 NWLR (Pt. 1364) 117 at pp. 150 – 159.
It was also submitted that it was erroneous to contended as was done by the Appellant that the Respondent did not make any claim for conversion and therefore, the Court below was wrong to have granted the N5,000,000.00 claim for conversion and contended that the Respondent’s claim also touched on the fact that the Appellant unethically allowed the unknown persons to clear the cheque and urged the Court to hold that in law to allow unknown persons to unethically clear the draft of the Respondent amounted to conversion and it was immaterial that the Respondent did not particularly use the word ‘conversion’ in the claim and to dismiss the appeal since the Respondent claimed and proved by credible evidence the Appellant unethically allowed the unknown persons to clear the cheque and affirm the sound judgment of the Court below awarding both special damages of N5,000,000.00 and general damages of N100,000,000.00 against the Appellant. Counsel relied on Trade Bank Plc V. Benilux (Nig) Ltd (2003) 9 NWLR (Pt. 825) 416; British Airways V. Atoyebi (2014) JELR – 36540 (SC).
On the Respondent’s notice, learned counsel for the Respondent had submitted that from the averments in the pleadings of the Respondent and the evidence led thereon the claim of the Respondent was founded on negligence and which was proved by credible evidence against the Appellant and contended that the Court was right when upon proper evaluation and appraisal of the evidence it found as fact that the Appellant was negligent in allowing some unknown persons to withdraw the bank draft from the Respondent’s account but had proceeded to awarded the sum of N5,000,000,00 lost by the Respondent as a result of the negligence of the Appellant as special damages for conversion rather than as special damages for negligence, which was a mere slip, and urged the Court to hold that in law the same set of facts can give rise to two or more causes of action as in the instant case wherein the claim as pleaded and proved by the Respondent against the Appellant perfectly supported both special damages for negligence and or conversion and to dismiss the appeal and affirm the judgment of the Court as an award of special damages for negligence as pleaded and proved by the Respondent against the Appellant. Counsel relied on CDC (Nig.) Ltd. V. SCOA (Nig.) Ltd. (2007) NWLR (Pt. 1030) 300 at p. 365, Trade Bank Plc V. Benilux (Nig) Ltd (2003) 9 NWLR (Pt. 825) 416, Amasike V. Reg. Gen., CAC (2010) 13 NWLR (Pt. 1211) 337 at p. 375.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In reply to the Respondent’s notice, learned counsel for the Appellant had submitted that the decision of the Court below to find the Appellant liable for conversion was not a mere slip as was erroneously contended by the learned counsel for the Respondent on the misconceived basis that the circumstances of the case gave rise to more than one cause of action, including both conversion and negligence and contended not only did such contention amounted to a clear case of approbation and reprobation at the same time by the Respondent, which in law no party in a case is allowed the luxury to indulge in, but the Respondent’s assertion that the use of ‘unethically allowed to be cleared by unknown persons’ amounted to a claim in conversion was also flawed in that there was nowhere the Respondent mentioned the word ‘conversion’ in the entirety of its pleadings since in law the parties remain bound by their pleadings and urged the Court to hold that the Court below was in grave to have granted a relief not claimed by the Respondent against the Appellant and to discountenance the Respondent’s notice, allow the appeal and set aside the perverse judgment of the Court below and dismiss the claims of the Respondent for lacking in merit. Counsel relied on Abeke V. Odunsi (2013) 13 NWLR (Pt. 1370) 1, Sogunro V. Yeku [2017] 9 NWLR (Pt. 1570) 290 at P. 310, Zenith Bank Plc. V. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207, Vinz Int’l (Nig.) Ltd V. Morohundiya (2009) 11 NWLR (Pt. 1153) 562 AT P. 580, Dr. Orizu V. Anyaegbunam (1978) 5 SC 21 at P. 86.
It was also submitted that the Respondent did not claim for conversion against the Appellant before the Court below but on negligence which was also highlighted in the final address of the Respondent yet the Court below had on its own voyage considered and made findings on conversion contrary to the Respondent’s claim in negligence and contended that not only is such an error grave and substantial but the Respondent cannot in this appeal raise a new case and fresh arguments it never made before the Court below all in a desperate bid to justify the fatal error of the Court below and urged the Court to hold that use of the term ‘conversion’ by the Court below was not a mere slip but a fatal error that goes to the root of the judgment since the Appellant was never from both the pleadings and evidence led called upon to defend a case of conversion and to allow the appeal, set aside the perverse findings and judgment of the Court below and dismiss the unproved claims of the Respondent for lacking in merit. Counsel relied on Tanko V. The State (2009) 4 NWLR (Pt. 1131) 430 at P. 474, Uzondu V. UBN Plc (2009) 5 NWLR (Pt. 1133) 1, HS. Engr. Ltd. V. S. A. Yakubu (Nig.) Ltd. (2009) 10 NWLR (Pt. 1149) 416 at p. 432.
RESOLUTION OF ISSUE TWO
My Lords, a consideration of issue two encompassing Appellant’s issue three and Respondent’s issue two and Respondent’s notice, would involve a critical review of the pleadings and evidence led by the parties, particularly the Respondent with a view to identifying the real cause of action, claim and case put forward by the Respondent vis a vis the decision of the Court below to determine if on the one hand the award of N5,000,000.00 as special damages for conversion by the Court is one which is erroneous and liable to be set aside as vehemently contended by the Appellant or on the other hand amounted to a mere and unsubstantial slip and can be affirmed under the Respondent’s Notice as a special award for negligence as claimed by the Respondent.
Now, the case of the Respondent, as Claimant before the Court below, can be seen squarely within the averments in its pleadings and not in the submissions of counsel to either of the parties. I shall therefore take the liberty to reproduce some of the paragraphs of the Respondent’s pleadings I deem pertinent in this regard, namely:
18. The Plaintiffs avers that the Defendant were negligent in clearing his draft no. GT/A321/200019/1/4001/0 dated after July 2001 for the sum of N5, 000, 000. 00.
Particulars of Negligence:
i. By allowing unknown person to open an account in the name of the beneficiary of the said draft, Prof. Michael Ajomo.
ii. By not properly identifying the person as required by the Bank’s Practice and law and by the Defendant’s Standard Operating Brochure TSG/C1S/07 of June 1999.
iii. By using a staff of the Bank to stand as a referee to person she does not or had not met in her life.
iv. By allowing the unknown Professor Michael Ajomo to withdraw from the said account without providing proper referees.
v. By allowing the unknown Prof. Michael Ajomo to withdraw bulk of money with mere paper application without chequebook.
vi. Failure to exercise the care and the delinquency in clearing the cheque.
(19) The Plaintiffs further stated that as a result of the Defendant’s negligence they will now have to pay the Prof. Michael Ajomo the sum of N20,000,000.00 as he claimed being the value of the land. The Plaintiff will at the trial rely on a memo of indebtedness dated 24/07/02… See the Amended Statement of Claim of the Respondent at pages 62 – 65 of the Record of Appeal.
In response, the Appellant, as Defendant before the Court below, had averred inter alia thus:
22. The Defendant vehemently denies paragraph 18 of the amended statement of claim and categorically assert that it was not negligence whatsoever in the opening of the account or in the withdrawal of the sum therein.
23. It is the Defendant’s contention that the person (Professor Ajomo) who cashed the draft is the person the Plaintiff intended and actually dealt with in the said transaction and it is the person to whom the Plaintiff gave the draft as the payee and he was the person the Defendant paid to.
25. The Defendant denies paragrapha19 and 91(b) of the Amended Statement of Claim and categorically put the Plaintiff to proof. Furthermore, the Defendant avers that assuming though denied that the Plaintiff would have to pay such sum to the Professor Michael Ajomo, it is inconsequential upon the negligence of the Plaintiff and has no bearing to the Defendant. See the consequential Amended Statement of Defense of the Appellant at pages 74 – 78 of the Record of Appeal.
In proof of its case, the Respondent as Claimant before the Court below called six witnesses. PW1 was one ASP Jonah Umana. He testified inter alia that on the complaint of the 2nd Plaintiff through his lawyer to the Anti-Fraud Section of Abuja Police Command alleging fraud committed in Kano against some persons, including the Appellant, he led the team that investigated the case. His investigation revealed that the following persons, namely; Suleiman Tukur, Ben Nwosu and Eze Allodous falsely presented themselves to the 2nd Plaintiff as real agents of one Professor M.A. Ajomo and sold Plot 677 to him for N5,000,000.00, which payment he made vide a bank draft in and another sum of N1,600,000.00 as commission for them. It was further revealed that an unknown person went and opened an account in the name of the said Professor M.A. Ajomo in the Kano Branch Office of the Defendant with the said Bank Draft aided and abetted by Haruna Musa and Samira Sabiu Bako who are workers of the Defendant and consequently, the said sum of N5,000,000.00 was later withdrawn by the unknown person. See pages 195 – 198 and 222 – 225 of the Record of Appeal.
PW2 was one Chief Davidson Okeke Oguocha., the 2nd Plaintiff but now deceased. He testified inter alia that is the Chairman, Chief Executive and sole signatory to the 1st Plaintiff’s account, which maintains an account with the Defendant. Sometimes ago, he contacted land agents to purchase land in Abuja for his relocation after so many offers, he decided to settle for Plot 677 Wuye District Abuja. His lawyer one Barr Okoyeeze carried out the search with a positive result that the said plot of land had no encumbrance and that one Suleiman Tukur was the authorized agent of Professor Ajomo, the undisputed owner of the said plot of land and which assured basis he negotiated with Suleiman Tukur and Architect Ben Nwosu, as agents of the owner. The parties agreed on N6,600,000. 00, out of which the sum of N1,600,000.00 was for the agency fees and the expenses incurred by the agents while the sum of N5,000,000.00.
On 9/7/2001, he issued a bank draft valued at N5,000,000.00 in favor of Professor M.A. Ajomo drawn from the Defendant Branch in Area 3, Abuja, as well two cheques for the N1,600,000.00 to the Agents in the presence of his lawyer, who then drafted Power of Attorney and Deed of Assignment between the Respondent and Professor M.A. Ajomo and same were purportedly taken to Lagos to Professor M. A. Ajomo for his signature by the agents and were returned after the said Professor had purportedly signed same. He took possession of the plot and constructed a five Bedroom duplex thereon, including a Boy’s quarter at the cost of N28, 000, 000. 00 as at 2002. He moved into the building by May 2002. However, on 4/5/20002, he was shocked to receive a Writ of Summons from Professor M.A. Alomo and he confronted the Manager of Defendant what had happened to the N5, 000, 000. 00 Bank draft meant for Professor Ajomo and which amount had been deducted from the statement of account of the Respondent in favor of Professor M.A. Ajomo.
Upon inquiry, it was found out that three days after the bank draft was issued in the name of Professor M.A. Alomo an account was opened at the Kano Branch of the Appellant without any referee and all the money was withdrawn by a mere written application and curiously it was only after four months of the withdrawal of the said money that the Kano Branch Manager of the Appellant, one Musa Haruna directed one Miss Bako Sabiu, a staff of the Appellant working under him to act as Referee to Professor Ajomo account, which was a clear case of negligent and collusion on the part of the Appellant. He was thoroughly cross-examined but was not shaken in any material particular. See pages 229 – 237, 243 and 247 – 255 of the Record of Appeal.
PW3 was one Chike Ukeke. He was subpoenaed to tender documents and stated inter alia that he was counsel for the Respondent in the suit filed by Professor M.A. Ajomo, with whom he had personal discussions in Lagos and on 24/7/2002, the sum of N20,000,000.00 was agreed upon as in Exhibit O as the purchase price of the plot on which the Respondent had already built the Five Bedroom House and payable by a Bank Draft within 30 days. However, Exhibit O was overtaken by events because judgment was delivered in the said case before the out of settlement could be implemented. See pages 255 – 257 of the Record of Appeal. PW4 was one Ifeanyi Njoku. He tendered Exhibit P, a cheque valued N5,000,000.00 issued by the PW2 on the account of the Respondent and instructing the Appellant to issue a Bank draft in favor of Professor M.A. Ajomo, as well as the Respondent’s Statement of Account in evidence.
PW5 was one Mrs. Lola Adeyemo. She is a Principal Registrar attached to High Court 5 and appeared on subpoena to produce the CTC of the Judgment in Suit No. FCT/HC/CV/678/2002: Prof. Michael Ayodele Ajomo V. Dr. Davidson Oguocha, which she tendered as Exhibit R. See page 261 of the Record of Appeal. PW6 was one Haruna Musa Adejo. He testified inter alia that he is the Branch Manager of the Appellant in Kano Branch and he was in Court on subpoena to tender some documents. He told the Court that the PW1 collected all the documents he was subpoenaed to tender and same had not been returned to them by the police. He was accordingly discharged. See pages 260 – 262 of the Record of Appeal.
In its defence, the Appellant called two witnesses. DW1 was one Remi Kilaso. He testified inter alia that sometimes in July 2001, the Respondent vide Exhibit P requested the Appellant through PW2 to issue a Bank draft valued at N5, 000, 000. 00 in favor of one Professor M.A. Ajomo but that the purpose for which the Bank draft was issued was not known to the Appellant. There was no other instruction given to the Appellant, which then issued N5, 000, 000. 00 to PW2 as requested. However, later the Appellant received Exhibit S from the Respondent’s solicitor inquiring how the N5, 000, 000. 00 Bank draft, to which the Appellant replied by Exhibit N1. It was Professor M.A. Ajomo who opened an account with the Bank draft at the Kano Branch of the Appellant, where the amount was later withdrawn.
In the Appellant Bank, for an individual to open a current account, he is required to complete account opening package which include the mandate of customer and one passport photograph, customer identification either International Prt, National Identity Card or Customer Driving License, One or two Referee, which procedures were complied with by the Appellant in the opening of current account for Professor Ajomo at the Appellant’s Kano Branch in that the original copy of Professor Ajom’s international Passport was sighted and the photocopy of essential pages retained in the Bank, which was admitted as Exhibit T. He filled a Mandate Card as in Exhibit U and Mandate Form as in Exhibit V and submitted the name of one Samira Sabiu Bako, an Ex – Worker of the Appellant as a Referee and filled a form as in Exhibit W. The Appellant usually requests for two Referee from a customer opening a current account but in the instant case where the Professor was not able to provide two Referees but was able to provide one Referee, he was granted a waiver for one Referee and it is acceptable banking practice of the Appellant for the Professor to withdraw by written instruction as Exhibits X1 and X2. The Appellant exercised due care in the issuance of the bank draft and in the opening of the said account. It is the business of the Respondent who must have been negligent to give the bank draft to a fake Professor Ajomo, having not verified which Professor Ajomo owned the plot it bought. See pages 267 – 279 of the Record of Appeal.
DW2 was one Ibrahim Owolabi. He testified inter alia that he was the Group Head of Commercial Banking of the Appellant and that one Professor Ajomo came to the Appellant’s Kano Branch and opened a current account with a N5,000,000.00 Bank draft issued in his favor by the Appellant’ Abuja Branch, and that all the requirements for the opening an individual current account were complied with by Professor M.A. Ajomo, including providing one Referee instead of two, in the person of one Samira Bako, an Ex – Staff of the Appellant. The procedure for clearing a bank draft by the Appellant is to ask the issuing branch whether the bank draft is genuine or fake and to ask further whether the Bank draft had been reported stolen or missing which were not the case in the instant bank draft and the money was withdrawn by written instruction where cheque book is not ready as in Exhibits XI and X2, which are in compliance with the procedure of the Appellant. The Appellant was not in any way negligent and was therefore, not liable to the Respondent, who was rather negligent by giving the bank draft to a wrong person he did not know. See pages 280 – 284 and 286 – 289 of the Record of Appeal.
It was on the strength of the above pleadings and evidence, both oral and documentary as led by the parties, that the Court below had in is judgment delivered on 3/5/2012, granted the claims of the Respondent as Claimant against the Appellant as Defendant, stating and holding inter alia thus:
“…. The 2nd Plaintiff claimed in his evidence that he told the Defendant the address of the beneficiary of the N5 Million draft which is Institute of Advance Legal Studies Lagos, the same address was provided in Exhibits U and V, account opening package of the Defendant, how can a Professor who works and resides in Lagos come to Kano to open a Current Account for the purpose of clearing a Five Million Naira bank draft? This raises a very serious suspicion but the Defendant overlooked the suspicion and allowed the fake Professor to open the account and cleared the Five Million Naira Bank Draft. The conclusion of this Court is that the duty of care owed the Plaintiffs by the Defendant was breached by the act of negligence of the Defendant…The next issue for determination is whether the plaintiffs are entitled to damages as a result of the breach of duty of care by the Defendant and as a result of negligence of the Defendant. The Court had already held that the Defendant is negligent because the officials of the Defendant failed to strictly adhere to the standard rule of banking, the bank or the Defendant will be vicariously liable for the negligence of its servants…The question that arises is which kind of damages are the Plaintiffs entitled from the Defendant’s act of negligence? The 1st kind of damages the Court observed here is that the Defendant is guilty of conversion of the N5 Million draft and therefore the Plaintiff is entitled to point in time…” See pages 303 – 335 of the Record of Appeal.
My Lords, I have taken time to review the totality of the averments in the pleadings of the parties, particularly the pleadings of the Respondent as to the nature of its claim or its cause of action against the Appellant. I have also evaluated the entirety of the evidence, oral and documentary as led by the parties and it does appear very clear and certain to me, and I so hold, that the claim or cause of action of the Respondent as disclosed in the averments in the pleadings and evidence led, and proved as found by the Court below, and quite rightly too in my view, was that of negligence. There was nowhere the Respondent either made any claim or pleaded any case of conversion against the Appellant.
The claim of the Respondent against the Appellant as endorsed in the Writ of Summons and as subsequently averred to in the Amended Statement of Claim is for damages for negligence. In law, in a claim for damages for negligence, the Claimant must plead and prove the following three main ingredients of the tort of negligence, namely;
1. The Defendant owed the Claimant a duty to exercise due care;
2. That the Defendant failed to exercise due care or had breached the duty of care;
3. The Defendant’s failure was the cause of the injury suffered by the Claimant. See MTN V. Mundra Ventures (Nig) Ltd (2016) LPELR – 40343 (CA) per Georgewill JCA. See also Olam (Nigeria) Ltd V. Intercontinental Bank Ltd (2009) LPELR 8275 (CA); Koya V. UBA Ltd (1997) 1 NWLR (Pt. 481) 41; Osigwe V. Unipetrol Ltd (2005) 5 NWLR (Pt. 918) 261.
Now, the term negligence has been variously defined but the central key that runs through all such definitions is that it is an omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do or doing something which a reasonable and prudent man would not do. Negligence is thus the failure to use such care as a reasonably prudent and careful person would use under similar circumstances or the doing of some act which a person of ordinary prudence would not have done under similar circumstances. See Black’s Law Dictionary 11th Edition at P. 1032.
Thus, once a Claimant leads evidence which creditably and cogently establishes a duty of care owed him by the Defendant, the breach of that duty by the Defendant and the resultant damages he is entitled to his claim for damages for negligence. The Claimant must prove that the injury caused him was as a result of the negligence of the Defendant, nothing else or less would be sufficient. See B. J. Ngilari V. Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626. See also Oyidiobu V. Okechukwu (1972) 5 SC 191, Orhue V. NEPA (1998) 7 NWLR (Pt. 557) 187; R. V. Tatimu (1952) 20 WLR 60.
In law therefore the proof of the existence of a duty of care, its breach and resultant damages is a sine qua non for a successful claim in negligence. In all cases in which damages is being claimed for negligence, it may be well for trial Courts to bear it in mind that negligence is a matter or question of fact and not law and thus a finding as of fact of the act of omission or commission of the Defendant must first be made before damages could be assessed. See M. O. Kanu & Sons Ltd Co. Ltd V. First Bank of Nigeria Plc (2006) LPELR 1797 (SC). See also Agbonmagbe Bank Ltd V. CFAO (1966) 1 All NLR 490; Diamond Bank Ltd V. Partnership Investment Co Ltd & Anor (2009) 18 NWLR (Pt. 1172) 67.
Now, whilst in its judgment, the Court below found as fact clearly proved by the Respondent through credible evidence that the Appellant was negligent as alleged and proved against it by the Respondent, it proceeded to consider the action of the Appellant as proved to amount to conversion and thereby awarded to the Respondent the sum of N5,000,000.00 claimed by the Respondent against the Appellant as special damages for conversion contrary, as it has been vehemently contended by the Appellant to the claim for negligence made by the Respondent against the Appellant.
However, it would appear that the Appellant is not contesting the finding that the Respondent indeed proved by credible evidence that the Appellant was negligent in its handling of the current account opening and withdrawal of the N5,000,000.00 in clearly very suspicious circumstances, including but not limited to the proved fact that by Exhibit V, two Referees are required to open individual current account which did not happen in the instant case and that even the sole Referee letter as in Exhibit W was written on 5/12/2001 whilst by Exhibit V, the account of the said Professor M.A. Ajomo had already been opened four months earlier on 12/7/2001. As if that was not enough, the Appellant allowed the withdrawals to be made on the said account vide Exhibit X1 and X2 for N3,500,000. 00 on 13/7/2001 and on 19/7/2001 for the sum of N1,400,000.00 four months before the Reference letter in Exhibit W. These devastating findings of fact made against the Appellant by the Court below had neither been challenged nor shown to be perverse and or wrong, and therefore, in law they remain binding on the Appellant. They cannot be merely wished away! See Nwaogu V. Atuma (2013) 11 NWLR (Pt. 1364) 117 at pp. 150 – 159. See also Uwazurike V. Nwachukwu (2013) 3 N. W.L.R (Pt. 1342) 518.
So, did the Respondent plead and prove negligence against the Appellant in relation to the bank draft of N5,000,000.00? I think it did. By relying on only the international passport of the person who purportedly presented himself as Prof. Ajomo without the benefit of the required two referees out of which one was deferred without any reason proffered for such an action. Incredibly, and come to think of it, even the only referee, and for that matter an Ex-Staff of the Appellant, was even provided four months after both the opening of the current account and the withdrawal of almost entire sum of N5, 000, 000.00
Thus, even the fact of the opening of a fresh account at the Kano Branch of the Appellant far away from the supposed address of the Prof Ajomo with the Bank draft merely and solely for the purposes of cashing the sum of N5,000,000.00 was strong enough reason to put the Appellant on Notice and to exercise due caution and be more circumspect in dealing with Exhibits X1 and X2 as presented for withdrawal. Yet the Appellant carried out no such due diligence as was expected of a diligent Banker. The Appellant was proved to be rather in a hurry to open the current account and even providing its Ex-Staff as the sole referee four months after the hurried opening and withdrawal of the money in the said Account. These acts amounted to nothing but gross negligence! See UBN Plc V. Eskol Paints (Nig.) Ltd (1997) 8 NWLR (Pt 515) 157. See also Savory & Co V Lloyds Bank Ltd (1932) 2 KB 122; Loyds Bank V. Savory & Co. (1933) AC 201.
Having held as above, what in law was the effect of the Court below, having found as fact that the Appellant was negligent as pleaded and proved by the Respondent, proceed to award the sum of N5,000,000. 00 claimed by the Respondent as special damages for negligence as rather special damages of conversion against the Appellant?
My Lords, considering the unchallenged findings of facts as made by the Court below on the real issue as joined by the parties in their pleadings and the evidence led thereon, and if there had not been the Respondent’s Notice, I would have readily come to the conclusion as urged upon us by the Appellant that the Court below erred when it granted to the Respondent a claim it did not make but in the presence of the Respondent’s Notice coupled with the copious unchallenged findings of liability for negligence against the Appellant by the Respondent, I hold firmly that this is a proper case in which the use of a Respondent’s Notice is impeccable ad should perforce be upheld and succeed with full force.
Now, by Order 9 Rule 2 of the Court of Appeal Rules 2021, it is provided as follows:
“A Respondent who desire to contend on the appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.”
Thus, the purpose of a Respondent’s notice under Order 9 Rule 2 of the Court of Appeal Rules 2021 is that the judgment or decision appealed against should be affirmed on grounds other than those relied upon by the Court below in reaching its decision appealed against. However, it must be founded or based on grounds which are apparent on the face of the Record of Appeal, having regards to the facts of the case, the applicable law and the judgment appealed against. See IGP & Ors V. Ikpila & Anor (2015) LPELR – 40630 (CA) per Georgewill JCA.
The findings of the Court below that the Appellant was negligent as pleaded, claimed and proved by the Respondent against the Appellant was correct both on point of facts and the applicable principles of law. It is unimpeachable and must be allowed to stand. That is the only conclusion that can be dictated by the course of justice in this case. I therefore allow it to stand. I consider the award as special damages for conversion, on the face of the proved facts, as mere inadvertence or a very negligible slip, of the Court below, which did not in any way affected the substance of the proper evaluation and appraisal of the totality of the evidence led by the parties and correct finding of facts made against the Appellant on the claim of negligence against it by the Respondent. See Amasike V. Reg. Gen., CAC (2010) 13 NWLR (Pt. 1211) 337 at p. 375, where the Supreme Court had stated inter alia thus:
“It is not every slip committed by a Court that will result in an appeal against the judgment being allowed. An error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must occasion a substantial miscarriage of justice. Put differently, it is not every slip committed by a Judge in his judgment that will amount to a misdirection which will result in the appeal being allowed. The misdirection, to be fatal, must have occasioned a substantial miscarriage of justice. The mistake must have affected or influenced the decision appealed against before it can result in the reversal of the decision. In the instant case, even if there was any miscarriage of justice, it was not substantial to warrant the interference of the appeal Court.”
Thus, the only issue is whether the ultimate order or award by the Court below, having found as fact that the Respondent proved by credible evidence that the Appellant was negligent in its handling of the opening of the current account and the subsequent withdrawal of the N5,000,000.00, that the Appellant was liable for the payment of the sum of N5,000,000.00 to the Respondent was correct? In the light of all I have found earlier in this judgment, the answer to this poser is a resounding and an overwhelming Yes! I hold firmly that the Court below was correct when it held that the Respondent proved by credible evidence that the Appellant was negligent in its handling of the opening of the current account and the subsequent withdrawal of the N5,000, 000. 00 and was therefore, liable for the payment of the sum of N5,000,000. 00 to the Respondent as claimed against the Appellant by the Respondent. An appellate Court which had not seen the witnesses testify and observed their demeanour in the witness stand should respect the views of the trial Court and should not readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court below was perverse. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 at p. 19. See also Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 at Pp. 1820 -1821; Sa’eed V. Yakowa (2013) All FWLR (Pt. 692) 1650 at p. 1681.
My Lords, the law is and has always been that once the conclusion reached by a trial Court, or any Court for that matter, is correct then even a wrong reason for the correct conclusion and or finding, which is the pathway to the conclusion, will not by itself alone vitiate the correct finding and or conclusion of the Court below. Thus, even where an appellate Court comes to the conclusion that there in need to re-evaluate the evidence, it must be borne in mind that evaluation and ascription of probative value to the evidence led is ordinarily the turf of a trial Court.
Therefore, once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court should not interfere once the conclusions reached is correct, even if the reason turns out to be wrong. It follows that it is only and only if the conclusion reached and or the finding made itself turns out to be wrong that an appellate Court would be under a duty to intervene to make proper findings and reach correct conclusions. See Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 at p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134 and Ukejianya V. Uchendu 18 WACA 46.
In the light of all the findings above, issue two, encompassing the Appellant’s issue three and the Respondent’s issue two together with the Respondent’s notice, is hereby resolved against the Appellant in favour of the Respondent.
ISSUE ONE
Whether the award of general damages of N100,000,000. 00 by the Court below in favor of the Respondent was right having regard to the circumstances of this case?
APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that the claim of the Respondent was for the sum of N100,000,000. 00 as general damages and not as special damages and contended that in law special damages must be specifically pleaded and strictly proved while general damages must be a direct, natural or probable consequence of the act complained of and therefore, cannot be granted if the quantum of loss is qualifiable or ascertainable and urged the Court to hold that the award of N100,000,000.00 as general damages against the Appellant in favour of the Respondent by the Court below was wrongful in that it did not follow the correct principles of award of damages where the loss of the Respondent was ascertainable and or qualifiable, and therefore amounted actually to special damages which the neither claimed nor proved against the Appellant and to allow the appeal, set aside the award of N100, 000, 000. 00 as being ‘the present value of the house’ and dismiss the claims of the Respondent for lacking in merit. Counsel relied on Kopek Construction Limited V. Ekisola (2010) 3 NWLR (Pt. 1182) 618 at Pp. 642 – 643, Odulaja V. Haddad (1973) 11 SC 357; Union Bank of Nigeria Plc V. Ajabule (2011) 18 NWLR (Pt. 1278) 152 at p. 183; Air Liquid Nig. Plc V. Nnam (2011) 9 NWLR (Part 1251) 61 at p. 81; Taylor V. Ogheneovo (2012) 13 NWLR (Pt. 1316) 46 at p. 66.
It was also submitted that for general damages to be awarded to the Respondent there must be a nexus between the wrong complained of, the alleged negligence in allowing an alleged impostor to cash a bank draft issued on the instructions of the Respondent, and the damages awarded and contended that in law general damages must not be remote but must stem from the alleged negligent act or be a direct or necessary result of the alleged negligent act and urged the Court to hold that at best the general damages suffered by the Respondent was the loss of the face value of the Bank draft, which the stands to lose if the draft was improperly negotiated and not any claim of loss of N100, 000, 000. 00 far in excess of both the face value of the draft at N5, 000, 000. 00 and the entire cost of putting up the structure at N28, 000, 000. 00, which is not in law general damages and to allow the appeal, set aside the perverse judgment of the Court below and dismiss the claims of the Respondent in its entirety for lacking in merit. Counsel relied on Union Bank of Nigeria Plc V. Ajabule (2011) 18 NWLR (Pt. 1278) 152 at P. 183; Dennis Ivienagbor V. Henry Osator Bazuaye & Anor (1999) 9 NWLR (Pt. 620) 552 at p. 561.
It was further submitted from the reasoning of the Court below, it clearly shows that it did not rely on any shred of evidence led by the Respondent but had only speculated as to the value of the property and contended that in law the award of N100, 000, 000. 00 amounted to an award in special damages to compensate the Respondent to the tune of the value of a building which was never claimed by the Respondent and urged the Court to hold that there is no causal connection between the act complained of by the Respondent and the alleged loss of a value of the property worth N100,000,000.00 so as to render such claim as general damages, which the Court below can grant and to allow the appeal, set aside the wrongful award of the sum of N100,000,000.00 against the Appellant and dismiss the claims of the Respondent for lacking in merit. Counsel relied on Eyigebe V. Iyaji (2013) 11 NWLR (Pt. 1365) 407 at pp. 424 – 425, Hamza V. Kure (2010) 10 NWLR (Pt. 1203) 630 at p. 650, Rockonoh Prop. Co. Ltd. V. NITEL Plc (2001) 14 NWLR (Pt. 733) 468 at p. 495, Badmus V. Abegunde (1999) 11 NWLR (Pt. 627) 493 at p. 504, Ya’u V. Dikwa (2001) 8 NWLR (Pt. 714) 127 at p. 146. See also Adim V. NBC Ltd (2010) 9 NWLR (Pt. 1200) 543, UBN Ltd V. Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421) 558, West African Shipping Agency (Nigeria) Limited & Anor V. Musa Kalla (1978) 3 SC 21, Dumez Nigeria Ltd V. Patrick Nwaka Ogboli (1972) 1 All NLR 241 and Alhaji Otaru & Sons Ltd. V. Idris (1999) 6 NWLR (Pt. 606) 330 at pp. 345 – 346.
It was also further submitted that it was evident that the Court below acted under a mistake of law by wrongly awarding general damages in a case suitable for only special damages and also disregarded the principle for damages in the tort of negligence to be foreseeable and have a causal link to the negligence complained of and contended that the Court below clearly misunderstood the facts by awarding damages for a relief not claimed by taking into account extraneous and irrelevant matters in arriving at the sum of N100,000,000.00 as general damages and urged the Court to hold that this is a proper case to intervene to avoid injustice to the Appellant and to allow the appeal, set aside the perverse judgment of the Court below and dismiss the Claim of the Respondent for lacking in merit.
On his issue two, learned counsel for the Appellant had submitted that in the law of negligence the measure of damages is restitutio in integrum, that is the Claimant should only be entitled to such sum as will put him in the position he would have been, if the act constituting the negligence never occurred, and not restitution opulentiam, that is giving him a windfall, and contended that even if the Appellant were negligent, though not conceded, in law the appropriate damages will be to put the Respondent in the position it would have been if the alleged act constituting the negligence had not occurred by an award of the exact sum of N5,000,000.00, the value of the Bank draft withdrawn by the alleged impostor and nothing more and urged the Court to hold that damages of N100,000,000. 00 awarded in excess of the face value of the bank draft clearly amounted to over compensation and should be set aside and the appeal allowed. Counsel relied on Wema Bank Plc V. LIT (Nig.) Ltd. (2011) 6 NWLR (Pt. 1244) 479 at p. 508, Anthony M. Soetan V. Ogunwo (1975) 6 SC 67 at p. 72, Makinde V. Omaghomi (2011) 5 NWLR (Pt. 1240) 249 at p. 268, Eigbejale V. Oke (1996) 5NWLR (Pt. 447) 128 at P. 142; Shitta – Bey V. Federal Public Service Commission (1981) 1 SC 40, Saude V. Abdullahi (1989) 4 NWLR (Pt. 116) 387 and Olusanya V. Olusanya (1983) 3 SC 41 at Pp. 56 – 57.
It was also submitted that in law once a party has been fully compensated for the loss or harm suffered by him, it should not be open to the Court to proceed to award him any other kind of additional damages that may amount to double compensation and contended that a Court must scrutinize claims for general and special damages where claimed together in order to avoid double compensation after the claim for special damages has been granted and urged the Court to hold that in law once a Claimant recovers in full under special damages, he will not be entitled to recover under general damages, notwithstanding that the Court has the discretion to determine whether or not to award damages to a litigant and the quantum of such damages if it so decides, but must in doing so follow laid down principles of law, some of which were clearly violated by Court below and to allow the appeal and set aside the perverse judgment of the Court below and dismiss the claims of the Respondent for lacking in merit. Counsel relied on Awo Omamma V. Nwokoro (2012) 14 NWLR (Pt. 1321) 488 at p. 515; Anazodo V. PIT (2008) 6 NWLR (Pt. 1084) 529 at p. 546; Ighreriniovo V. SCC Nigeria Limited & Ors (2013) 10 NWLR (Pt. 1361) 138 at p. 154; Aminu Ishola Investment Limited V. Afribank Nigeria Plc. (2013) 9 NWLR (Pt. 1359) 380 at p. 405.
RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Respondent had submitted that the Appellant did not appeal against the finding of negligence against it by the Court below and in law a finding by a Court which is not appealed against is binding on the party against whom it was made and contended that out of the three reliefs claimed by the Respondent against the Appellant, reliefs (i) and (ii) were for a specific amount of money while relief (iii) was for general damages and urged the Court to hold that the Court below in considering and assessing the claim for general damages adverted its mind on the applicable principles of law governing the award of general damages and came to the correct finding that had the Appellant not been negligent and returned the Bank draft to the Respondent, it would not have spent its resources to put up the five bedroom duplex and boys’ quarters on the said plot and therefore, deserving of the damages of N100,000,000.00 awarded against the Appellant by the Court below and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Uwazurike V. Nwachukwu (2013) 3 N.W.L.R (Pt. 1342) 518, Chevron Nigeria Ltd & Anor V. Omoregha & Ors (2015) LPELR-24516, Ukachukwu V. Uzodinma (2007) 9 NWLR (Pt. 1038) 167, Mobil Producing Nig Ltd & Anor V. Udom Tom Udo (2008) LPER – 8440, SPDC V. Okonedo (2007) All FWLR (Pt. 363) 1044 at p. 1139, Kopek Const. Ltd V. Ekisola (2010) 3 NWLR (Pt. 1182) 618 at p. 645.
It was also submitted that by the judgment in Exhibit Q, it was clear that the Respondent had due to the negligence of the Appellant lost ownership of the building it put up on the plot which had become the property of the real Professor Ajomo and contended that this amounted to grave and grievous injury inflicted on the Respondent as a result of direct negligent flowing from the acts of the Appellant and urged the Court to hold that such grave and grievous injury as inflicted on the Respondent by the Appellant was incapable of exact calculation and therefore, considering the proved circumstances the award of the sum of N100,000,000.00, which was less than, as found by the Court below and un – appealed against by the Appellant, the value of property built by the Respondent on the said plot of land, as general damages were reasonable and justified and should be allowed to stand and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on CCCTCS Ltd V. Ekpo (2008) 6 NWLR (Pt. 10831) 388, Abah V. Jabusco (Nig) Ltd (2008) 3 NWLR (Pt. 1075) 568.
It was further submitted that in arriving at the amount of N100,000,000.00 awarded as general damages the Court below took judicial notice of the fact that the value of similar property at Wuye district Abuja was far than N100,000,000.00, of which there is no appeal against the judicial notice taken by the Court below and contended that in law any fact of which a Court can take judicial notice need not be proved and urged the Court to hold that in arriving at the amount of N100,000,000.00 the Court below having relied on judicial notice of value of similar property in the Wuye Area of Abuja did not and cannot be said to have indulged itself in speculation since in law the Court is entitled to make its own assessment of the quantum of general damages to be awarded and to dismiss the appeal for lacking in merit. Counsel relied on British Airways V. Atoyebi (2010) 14 NWLR (Pt. 1214) 561 at p. 608, LSBPC V. Purification Tech (Nig) Ltd (2013) 7 NWLR (Pt. 1352) 82 at P. 110, Okeke V. Chidoka (2011) 5 NWLR (Pt. 1241) 483 at p. 507.
It was also further submitted that the Appellant who had invited the Court to interfere with the award of damages by the Court below failed to discharge the burden to demonstrate or show from the evidence on record that the damages awarded were wrong and unmerited and contended that an appellate Court would not interfere with an award of damages by a trial Court unless it is clearly shown that the trial Court acted upon wrong principle of law, or that the amount awarded was ridiculously too high or too low, or that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case and urged the Court that the Appellant failed to make out any of the legal basis for interference with the award of damages made by the Court below and to dismiss the appeal and affirm the damages as awarded against the Appellant by the Court below. Counsel relied on Chief Bright Onyemeh & Anor V. Mrs Grace Iwueze & Anor (2013) LPELR – 21879 (CA) and Rockonoh Properties & Co. Ltd V. NITEL Plc & Anor (2001) 18 SCM 117 at p. 136.
It was also submitted that in assessment of general damages, the proper exercise of judicial discretion is required and once a trial Court has in proper exercise of discretion made an award of general damages, it is not the duty of an Appellate Court to re-assess the amount of general damages so made, simply because it would have awarded a different amount if it had determined the matter at first instance and contended that an appellate Court would only interfere if it is satisfied, from evidence on record that the trial Court had applied wrong principles of law or that it took into account irrelevant factors to make an erroneous estimate of damages and urged the Court to hold that the Appellant having failed to make out any justification for interference the appeal should be dismissed and the award of N100,000,000.00 be affirmed. Counsel relied on UBN Plc V. Ajabule (2011) 18 NLWR (Pt. 1278) 152 at p. 181.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, submissions learned counsel for the Appellants virtually reiterated his earlier submissions but in law, the reply brief is not an avenue to re-argue the appeal or merely to have a second bite at the cherry. The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See also Olafisoye V. FRN 2004 1SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN 2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).
Be that as it may it was submitted that by ground 1 of the Notice of Appeal the Appellant specifically attacked the basis for the award of N100,000,00. 00 as the current value of the Respondent’s property and further the Respondent’s property was worth more than N100,000,000.00 and contended that such reasons were merely speculative and urged the Court to hold an award of damages founded on speculation is one which cannot stand and to allow the appeal, set aside the erroneous award of N100,000,000. 00 as general damages and dismiss the claims of the Respondent for lacking in merit. Counsel relied on Oguonzee V. State (1998) 5 NWLR (Pt. 551) 521 at p. 555, Dennis Ivienagbor V. Henry Osator Bazuaye & Anor (1999) 9 NWLR (Pt. 620) 552 at p. 561.
It was also submitted that the value of property in Wuye District of Abuja is not a matter of judicial notice as it does not fall within the classes of the facts which of judicial notice can be taken by the Court and contended that the Court below was wrong to take into consideration in its assessment of damages matters of speculation since there is no law by which the Court below could take judicial notice of value of property in Wuye area of Abuja and urged the Court to hold that even if the value of property in Wuye District were to be a matter of which judicial noticed can be taken none of the parties called upon the Court below to take judicial notice of same as required by law and to discountenance all the submissions on judicial notice by learned counsel for the Respondent. Counsel referred to Section 122 (2) and (4) of the Evidence Act 2011.
RESOLUTION OF ISSUE ONE
My Lords, a consideration of issue one encompassing Appellant’s issues one and two and Respondent’s issue one would involve a critical review of the pleadings and evidence led by the parties to determine whether the award by the Court below of the sum of N100,000,000. 00 as general damages against the Appellant in favour of the Respondent as representing the ‘present value’ of the property put on the said plot by the Respondent was wrong or followed the correct principles on award of damages?
In my consideration of issue two, I have already held and affirmed the award by the Court below of the sum of N5,000, 000. 00 the face value of the Bank draft withdrawn due to the negligence of the Appellant as correct having been based on the correct principles on award of damages, same having been specifically pleaded and proved by the Respondent against the Appellant.
I had earlier reproduced in great details the evidence led by the parties as in the Record of Appeal. I have taken time to calmly review the pleadings of the parties on which these pieces of evidence were led, particularly in relation to the award of N100,000,000.00 as general damages representing the ‘present value’ of the property put up on the said plot by the Respondent. It was on the strength of the pleadings and evidence, both oral and documentary as led by the parties, that the Court below had in is judgment delivered on 3/5/2012, awarded the sum of N100,000,000.00 as general damages against the Appellant as representing the ‘present value of the Five – Bedroom Duplex and Boys’ Quarters’ built on the plot by the Respondent, stating and holding inter alia thus:
“The 2nd Plaintiff would have realized that he was not dealing with the real agents of real Professor M.A. Ajomo and the contract of sale of the said plot could have been rescinded by him immediately. He would have avoided building 5 – Bedroom duplex end Boys’ quarter on another man’s land…The measure of damages to be paid by the Defendant to the Plaintiff as general damages is the present value of the house which now belongs to the real Professor M.A. Ajomo. The house in question is situate on Plot 672 Wuye District Abuja and it consist of 5 – Bedroom Duplex and Boys’ quarters the present value of the house will be more than One Hundred Million Naira, the Plaintiffs are asking for N100, 000, 000. 00 general damages…” See pages 303 – 335 of the Record of Appeal.
Now, general damages are those damages which the law presumes to flow from the injury or wrong complained of by the Claimant against the Defendant. Therefore, they need neither be pleaded nor proved by a party so claiming to be entitled to its grant by the Court. However, unlike general damages, special damages are those damages which the law requires that must be specifically pleaded and strictly proved. Thus, special damages are those damages which are given in respect of any consequences reasonably and probably arising from the breach complained of and thus they denote those pecuniary losses which have crystallized in terms of cash and value before trial. See Ezeani V. Ejidike (1964) 1 All NLR 402. See also WAEC V. Koroye (1977) 2 SC 45. Dumez V. Ogboli (1972) 1 All NLR (Pt. 1) 241. See Ijebu Ode L.G. Council V. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 36.
It follows therefore, a party claiming special damages must specifically plead and prove it strictly by evidence. However, strict proof does not mean that the law requires any minimum measure of evidence or that the law lays down a special category of evidence required or establish entitlement to special damages. All that in law is required in proof of special damages claim is credible evidence to establish the party’s entitlement to that type of damage and such credible evidence must be of such character as would suggest that he is indeed entitled to an award under that head. See Oshinjirin V. Elias (1970) All NLR 153. See also Warner International Ltd V. Federal Housing Authority (1993) 6 NWLR (Pt. 298) 148.
On the other hand, in law, general damages are obliged purely on the basis that it is the expectation of the ordinary reasonable man and is given to assuage a loss that was naturally caused by the act of the Defendant. It is also categorized as those damages which the Court may give when the judge cannot point out any measure upon which they are to be measured except the opinion and judgment of a reasonable man. They are to cover losses which flow naturally from the wrongful act of the Defendant and the quantum need not even be pleaded or proved as it is generally presumed by law. See Union Bank of Nigeria Plc V. Ajabule (2011) 18 NWLR (Pt. 1278) 152 at p. 183, where the Supreme Court whilst considering the difference between special damages and general damages, had stated inter alia thus:
“Special damages denote those pecuniary losses which have crystallised in terms of cash and value before trial. It is the kind of damages which though based on the discretion of the trial Court, such must be backed up by credible evidence adduced before the trial Court which strictly proves the plaintiff’s entitlement to the award. It is therefore settled principle of law that special damages must not only be specifically pleaded with relevant particulars, but also be strictly proved with credible evidence. Without such proof, no special damages can be awarded.”
See also Air Liquid Nig. Plc V. Nnam (2011) 9 NWLR (Part 1251) 61 at p. 81; Bello V. A.G. Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558; Cameroon Airline V. Otutuizu (2005) 9 NWLR (Pt. 929) 202.
Thus, once a party is fully compensated under one head of damages, it would amount to double compensation to award him damages in respect of the same injury under another head. Therefore, it would be wrong to take into account in awarding general damages matters which have already been considered in awarding special damages as that would amount to double compensation. See Onaga V. Micho & Co. Ltd (1961) all NLR 324.
My Lords, in the entirety of the pleadings and evidence led thereon, the Respondent did not make any claim of the present value of the house as a result of the Appellant’s alleged negligence. The Respondent did not also make any special damages claim for the ‘present value of the house’ throughout the trial before the Court below even though it tendered in evidence the CTC of the judgment obtained against it by the real Prof Michael Ajomo as Exhibit Q, in which the Respondent was ordered to vacate the 5 – Bedroom Duplex it had put up on what the Court in that judgment found to be the land belonging to the real Prof. Michael Ajomo. The Respondent rather only claimed the cost of its putting up the property on the said plot which it stated to be in the sum of N28,000,000. 00, which claim the Court below had, rightly in my finding too, rejected and refused to grant to the Respondent against the Appellant.
Yet, notwithstanding the above accepted facts and circumstances of this case that the Respondent did not make any special damages claim for the ‘present value of the house’ and the Court below having rejected and dismissed the Respondent’s claim for the sum of N28,000,000.000 as representing the cost of putting up the building on the said plot, had proceeded to, in my finding perhaps more out of sympathy than on any factual basis in law, make an award in the whooping sum of N100,000,000.00 under the guise of general damages against the Appellant in favour of the Respondent.
My Lords, having considered the entirety of the pleadings and evidence as led thereon by the parties, I find the award in the sum of N100,000,000. 00 against the Appellant in favour of the Respondent under the guise of general damages as in reality an award in special damages against the Appellant, over which no such claim for special damages was made by the Respondent against the Appellant. I cannot therefore, but agree completely with the apt and unassailable submissions of the learned counsel for the Appellant that the award in the sum of N100,000, 000. 00 by the Court below for the ‘present value of the house’, having neither been claimed nor proved strictly as required by law as a claim for special damages, was done contrary to all known principles of law on the award of damages. It is utterly perverse. It was based on mere speculation. It was not supported by any shred or iota of evidence from all and or any of the six witnesses that testified for the Respondent. It was therefore, wrong on law and on the facts and thus, cannot be allowed to stand. See Rockonoh Prop. Co. Ltd. V. NITEL Plc (2001) 14 NWLR (Pt. 733) 468 at p. 495. See also Odulaja V. Haddad (1973)11 SC 357; Yalaju – Amaye V. AREC (1990) 6 SC 157; Ya’u V. Dikwa (2001) 8 NWLR (Pt. 714) 127 at p. 146; Adim V. NBC Ltd (2010) 9 NWLR (Pt. 1200) 543; UBN Ltd. V. Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421) 558; West African Shipping Agency (Nigeria) Limited & Anor V. Musa Kalla (1978) 3 SC 21.
In the circumstances therefore, I hold that the Appellant had made out a real and genuine case for this Court to interfere with the award in the sum of N100, 000, 000. 00 as damages by the Court below having clearly, as required of it by law, demonstrated from the evidence on record that the said award of damages of N100,000,000.00 was unproved, wrong and therefore, unmerited. In law on appellate Court would interfere with an award of damages by a trial Court where it is shown that the trial Court, as in the instant case, had acted upon wrong principles of law, or that the amount awarded was ridiculously too high, as in the instant case, or too low, or that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case. See Chief Bright Onyemeh & Anor V. Mrs Grace Iwueze & Anor (2013) LPELR – 21879 (CA). See alsoRockonoh Properties & Co. Ltd V. NlTEL Plc & Anor (2001) 18 SCM 117 at p. 136; UBN Plc V. Ajabule (2011) 18 NLWR (Pt. 1278) 152 at p. 181.
However, the claim of the Respondent against the Appellant is one founded on negligence and the parties are ad idem on this. I have already held that the Court below was right, and on firmer ground, when it found the Appellant liable in negligence as claimed and proved against it by the Respondent. In my finding, it was not in any dispute between the parties, coupled with the judgment in Exhibit Q, that the Respondent who had in the belief that it had dealt with the real Prof Michael Ajomo to whom it thought it had paid the sum of N5, 000, 000. 00 for the plot and had gone into possession and built a Five – Bedroom Duplex and Boys’ Quarters thereon had lost its entire expenditure incurred on the said building by reason of the judgment obtained against it by the real Prof Michael Ajomo.
So, having held that the Court below was right when it awarded the sum of N5,000,000.00 as damages representing the face value of the Bank Draft whose withdrawal was negligently mishandled by the Appellant, was the Respondent also entitled to an award of general damages against the Appellant? I think it was so entitled to an award in general damages considering the fate that befell it by reason of the negligence of the Appellant on the face of Exhibit Q, which effectively dispossessed the Respondent of the Five – Bedroom Duplex and Boy’s Quarter it had built on the said plot in favor of the real Prof Michael Ajoma. In Exhibit Q, the CTC of the judgment in Suit No. FCT/HC/CV/678/2002: Prof. M.A Ajomo V. Davidson Oguocha, it was held inter alia thus:
“I hereby order the Defendant should vacate the premises. He should remove his structure from the said piece of land effective from 30th April, 2007.”
My Lords, in law an award for special damages, particularly in established case of negligence, will not be a bar to award of general damages depending on the circumstances as shown in each case. There is therefore, no general rule of law that once special damages claim succeeds, which must be specifically pleaded and strictly proved, then a claim in general damages must fail. Thus, a Court can, where the proved facts and circumstances justifies and or warrants it, award general damages consecutively with special damages as strictly proved by the party. See UBN Plc V. Ajabule (2011) 18 NLWR (Pt. 1278) 152 at p. 181, where it was stated inter alia thus:
“Where special damages are available to a party, that would not be a bar to the award of general damages in a situation where the injury to the party is not quantifiable.”
See also British Airways V. Atoyebi (2014) JELR – 36540 (SC) where the Supreme Court had stated inter alia thus:
“It is neither novel, nor inappropriate for a trial Court to award general damages consecutively with special damages especially in a case where it is duly established that the Claimant has suffered some damages. The instant case was a typical example where general damages ought to be awarded consecutively with special damages.”
In my finding therefore, the award in the sum of N100,000,000. 00 under the guise of general damages as the present value of the house built on the said plot by the Respondent was not only steeped more in special damages that was neither claimed not proved by the Respondent, but was also founded on mere speculation as to the value of properties in Wuye Area of Abuja, a fact of which no judicial notice can be taken by the Court below and of which no single iota of evidence was led by the Respondent before the Court below. The amount of N100, 000, 000. 00 damages was also, in my finding, unreasonably too high. It is thus, liable to be set aside and I hereby so set it aside anon! See Union Homes Savings and Loans Plc. V. Blue Wing Travel and Tours (2017) LPELR-51550 (CA) per Georgewill JCA. See also Nigerian Bottling Co. Plc. V. Ezeifo (2002) FWLR (Pt. 97) 772 at P. 790, NIDB LTD V. Advance Beverages Ltd. (2002) FWLR (Pt. 106) 1124 at P. 1143, Harod Shodipo & Co. V. Daily Times (1972) NSCC 635 at P. 637 and Agbaje V. National Motors (Supra) at P. 273.
However, it is my further finding and I so firmly hold, that the Respondent was in addition to the N5,000,000.00 damages representing the face value of the Bank Draft also entitled to general damages for the negligent act of the Appellant that had resulted into, and as can be clearly seen in Exhibit Q, occasioned very grave injury and huge losses to the Appellant as revealed from the totality of the facts and circumstances of this case. I assess damages in the sum of N10,000,000. 00 as reasonably adequate to assuage the Respondent of the grave injuries and losses occasioned to it by reason of the proved negligence of the Appellant.
In the light of all the above findings, issue one, encompassing Appellant’s issues one and two and Respondent’s issue one, is hereby resolved partly in favour of the Appellant against the Respondent.
On the whole therefore, having resolved issue one, encompassing Appellant’s issues one and two and Respondent’s issue one, partly in favour of the Appellant against the Respondent, I hold that the appeal succeeds in part. Accordingly, it is hereby allowed in part.
In the result, that part of the Judgment of the High Court of the Federal Capital Territory Abuja, Coram: S. E. Aladetoyinbo J., in Suit No. FCT/HC/CV/1093/2002: Tabik Investments (Nigeria) Limited & Anor V. Guaranty Trust Bank Plc delivered on 3/5/2012, in which it awarded the sum of N5,000,000.00 as general damages against the Appellant in favour of the Respondent is hereby affirmed as general damages for negligence.
However, that part of the judgment of the High Court of the Federal Capital Territory Abuja, Coram: S. E. Aladetoyinbo J., in Suit No. FCT/HC/CV/1093/2002: Tabik Investments (Nigeria) Limited & Anor V. Guaranty Trust Bank Plc delivered on 3/5/2012, in which it awarded the sum of N100,000,000.00 against the Appellant in favour of the Respondent as general damages is hereby set aside.
In its stead, the sum of N10,000,000 is hereby awarded against the Appellant in favour of the Respondent as general damages.
There shall be no order as to cost.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother, Biobele Abraham Georgewill, JCA.
My learned brother has admirably considered the pertinent issues presented by the parties for determination. A careful and sober consideration of the pleadings by both the Appellant and Respondents in the Court below will show clearly that the claim of the Respondent who was Defendant in the Court below was founded on the tort of negligence. The evidence led thereon, proved on the balance of probabilities, that the Appellant was negligent in the entire process of the opening of the account and withdrawal of the monies (draft cheque) deposited in the said account, just a few days after the account was opened and the draft deposited. I therefore agree completely with my learned brother, when he affirmed the finding of the learned trial Judge that the Appellant was guilty of negligent act which occasioned financial loss to the Respondent. The mere mention of “conversion” by the learned trial Judge in the Judgment does not derogate from the fact that negligence formed the basis of the Respondent’s claim.
I am also of the view, as expressly found by the learned brother that the award of N100,000,000.00 by the trial Court, amounted to dolling out such amount in special damages. To entitle the Respondent to such claim, the Respondent ought to have specifically pleaded the particulars of such special damage, and proof same by credible evidence. See Inland Containers (Nig.) Ltd. v. Roger Colman Trading Co. (1997) 8 NWLR (Pt. 517) 505; Orient Bank Pic. V. Bilante International Ltd. (1997) 1 NWLR (Pt. 515) 37 and Vinz International (Nig.) Ltd. v. Morohundiya (2009) 11 NWLR (Pt. 1153) 562. The pleadings and evidence led in this case did not meet the standard required by law in prove of special damages. I also agree with my learned brother, that the learned trial Judge was utterly wrong to base the award of such claim on “Judicial Notice”. I dare say, also in agreement with my learned brother, that the learned brother based his award on sympathy. Judge’s duty is to uphold the law and not to be sympathizer.
On that note, and for the detailed reasons brilliantly adumbrated in the lead Judgment, I also agree that this appeal succeeds in part. It is therefore allowed in part as ably stated in the lead Judgment. I abide by the consequential orders made by my learned brother.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment just delivered by my learned brother, Sir B.A. Georgewill, JCA.
I agree with both the reasoning expressed and the conclusion reached in the lead Judgment. I adopt those reasonings as mine, by which I too affirm as proper and deserving the award of general damages for negligence in the sum of Five Million Naira against the Appellant. However, the other award of general damages made in the judgment by the lower Court in the sum of One Hundred Million Naira against the Appellant is clearly unreasonable and excessive and same is accordingly set aside by me too and substituted with an award of Ten Million Naira as general damages against the Appellant. I also abide by the order on cost made in the lead judgment.
Appearances:
D. D. Killi, Esq., with him, Great Nnamani, Esq. For Appellant(s)
John Ainetor, Esq. For Respondent(s)