GUARANTY TRUST BANK PLC & ANOR V. MUSTAGLASS NIGERIA LIMITED & ANOR (2013)

GUARANTY TRUST BANK PLC & ANOR V. MUSTAGLASS NIGERIA LIMITED & ANOR

(2013)LCN/5835(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of January, 2013

CA/I/146/2008

RATIO

APPEAL: ATTITUDE OF APPELLATE COURT TOWARDS EVALUATION OF EVIDENCE

It is also the position of the law that the weight to be attached to admitted evidence is basically the responsibility of a trial judge as he is the person that has the advantage of evaluating the evidence led before him, having watched the demeanour of the witnesses who testify before the Court. The appellate court will not temper with any finding that comes out from the labour of the trial Judge without good compelling indication of a miscarriage of justice. PER M.B. DONGBAN-MENSEM, J.C.A.

APPEAL: EFFECT OF FAILURE TO JOIN ISSUES ON PARTICULAR ISSUE

the law is that where parties did not join issues on particular issue, that issue is deemed admitted by them and the Appellants in this case cannot resurrect same in this appeal. PER M.B. DONGBAN-MENSEM, J.C.A.

DAMAGES: ATTITUDE OF COURT TOWARDS AWARDING DAMAGES

A judgment awarding damages cannot be given by installment. It has to be given in one package. Difficulty in assessing damages or compensation is not a ground for refusing to award any damages. A definite award must, in all the circumstances of the case, be made by the court – See Chaplin v. Hicks (1911) 2 K.B. 786, Bovet v. Walter (1917) 62 S.J. 104 followed in Olutimehin and Ors. v. Lagos City Council (1968) A.N.L.R. 517. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

1. GUARANTY TRUST BANK PLC
2. AKINLOLU ILESANMI Appellant(s)

AND

1. MUSTAGLASS NIGERIA LIMITED
2. KAYODE MUSTAPHA Respondent(s)

M.B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Hon. Justice A. A. Aderemi of the High Court of Oyo State, delivered on the 31st March, 2006 in favour of the Respondents who were the plaintiffs at the trial.

The Appellants were the Defendants and the parties shall be referred to as Appellants and Respondents respectively in this judgment. The Respondents are customers of the Appellants and were granted banking facilities in the sum of N10, 000,000.00 by the 1st Appellant upon security of 2nd Respondent’s property at No.12, Vanity Villa, Oluyole Extension Ring Road, Ibadan. The Appellants sought to call in the collateral alleging a failure of the Respondents to fully liquidate the facility in record time. The Appellants contend that the Respondents defaulted in repayment of the banking facilities granted to them Exhibits ‘F’ & ‘G’ and the sum of N4, 371,396.88 with interest thereon were cited as outstanding. Also claimed is the agreed and/or ruling interest rate from March, 2004 until the final liquidation thereof is due and payable to the Appellant, by the Respondent. The Respondents are alleged to have agreed to owing the Appellant the sum of N3, 000,000.00. That there was no money in the Respondent sub account when exhibits ‘I & J’ were presented for payment therefore the Appellant are entitled to sell the 2nd Respondent’s property used as security for the banking facilities in default of payment. The Respondents had paid about N7, 000,000.00 and contended that the statements of account given to them by the Appellant, does not reflect the true banking transactions of the Respondents and that their accounts were not properly maintained in line with the Central Bank of Nigeria Monetary Policy Guideline.
That the banking facility has since been liquidated in consequence of which the Appellants are not entitled to sell the 2nd Respondent’s said property.

The Appellants and the Respondents formulated three issues for the determination by this Court although the Respondents did a slight modification to issue 1 as couched by the Appellant they adopted the remaining 2 issues as raised by the Appellant.
For the purpose of this appeal, we will adopt the first issue as formulated by the Respondents and the 2nd and 3rd issues of the Appellant as follows:-
The 3 issues as formulated
1. Whether on the available materials, the evidence before the court and the state of the law, the trial court was right to rely on all the evidence including exhibit ‘V’ in making a declaration that exhibits ‘L’ and ‘T’ are not a true and accurate reflection of the plaintiffs’ banking transaction with the 1st defendant?
2. Whether the trial court was right in making an order for the cumulative sum of N56, 769. 22 in respect of exhibits ‘I’ and ‘J’ with interest payable to be worked out and added thereon?
3. Whether in view of exhibit ‘U’ and the state of the law, the trial court was right in dismissing the 1st defendant’s counterclaim?

On issue one

In challenging the validity of Exhibit ‘V’ said to have been solely relied upon by the trial Court in entering judgment against the Appellant, Counsel on behalf of the Appellant contends that the trial judge agreed that from the statement of claim and statement of defence the court will require an expert opinion to resolve the issues before the court but that the court was in error to hold that the author of Exhibit ‘V’ is an expert to have held at page 214, lines 16-20 of the records of proceeding.

On the definition of the word Bank, he cited the case of FMBN v. NDIC (1999) 2 NWLR (Pt.591) 333 @ 361, C. Ogundare (of blessed memory) held as follows:
“The word “bank” is not defined in the Constitution nor in the interpretation Act. In its ordinary grammatical meaning, the word “bank” means an organization or place that provides financial service”.
See also A. D. H. Limited v. A. T. Limited (2006) 10 NWLR (Pt.989) @ 651 H. Definition of Bank in Words and Phrase Legally Defined Volume 1, p 151.
On the word “Art” or “Fine Art”, counsel defined it as follows:-
“A pursuit or occupation in which skill is directed towards the gratification of taste or production of what is beautiful”.

Counsel relied on Words and Phrases Legally Defined Volume 2. P.246. Based on the above definitions, Counsel contends that the trial court was in error to have relied on the provisions of Section 57 (1) Evidence Act, Cap, E14, LFN, 2004 to hold that banking is an art and that the section did not make provision for an opinion of an expert as to a report investigating bank statements of account. They placed reliance on the cases of S.P.D.C Limited v. Adamkue (2003) 11 NWLR (pt. 832) 533 @ 598. G, Ekong v. Udo (2002) 16 NWLR (pt. 792) 1 @ 28. E

Counsel further contends that the trial court was in error to have relied on the case of Gbadamosi v. Kabo Travels Limited (2000) 8 NWLR (pt.668) 243 and to have used Section 91(3) and not Section 92(1) Evidence Act, Cap. E14 LFN, 2004 to attach so much weight on Exhibit ‘V’ despite the fact that parties were not called to address the court on Section 91(3) Evidence Act but the court on its own suo moto raised the issue which led to miscarriage of justice on the Appellants. Relied on the cases of Abbas v. Solomon (2001) 15 NWLR (PT. 7350)144, @ 170, D-E, FASUBA V. ADUMASHI (2001) 17NWLR (PT. 743) 585 @ 595, E-F, OKONJI V. NJOKANMA (1999) 14 NWLR (PT. 638) 250 @ 266, B.

Counsel also contends that ‘exhibit ‘V’ was contradicted by DW1, PW3 the author of exhibit ‘V’ could not answer question under cross-examination and that exhibit ‘V’ was made for this case with the direction of the Respondent to conceal facts in support of the Respondent and not made contemporaneously with the existence facts in exhibits “L” & “T”. Relying on the case of Ilf (Nigeria) Limited v. Sillo (1994) 6 NWLR (pt. 350) 258 @ 272, H.

It is the contention of the Appellant that PW3 the maker of Exhibit ‘V’ who is not the maker of Exhibit ‘A’, ‘B’, ‘L’, & ‘T’ and cannot give oral evidence of the above Exhibits vis-‘a-vis Exhibit ‘V’. (Refer Salu v. Egeibon (1994) 6 NWLR (pt. 348) 23 @ 44.B, W.A.B Limited v. Savannah Ventures Limited (2002) 10 NWLR (pt. 775) 401 @ 426, H-, Ize-Iyamu v. Alonge (2007) 6 NWLR (pt. 1029) 84 @ 117. D).

Conversely, the Respondents contended that the trial court did not base its judgment only on Exhibit ‘V’ but properly considered all the evidences before the court, submissions of Counsel and testimonies of all the witnesses called upon to testify at the trial court.(see page 213-217 of the records).

The Respondents also contends that the trial court was not in error in relying on the provision of Section 57 (1) Evidence Act in finding that banking is an “Art” and PW3 who is an expert in art of banking was able to prove before the trial court that he is an expert in the field in question which is banking. That the Appellant sank in lack of understanding of the issue in question by defining bank instead of banking that is, the act carried out by banks or bankers. They went further to define banking as
a. “the set of techniques used by somebody in a particular field, or the used of those techniques”
b. “The skill or ability to do something well”
(See Encarta Dictionaries).

It is the further contention of the Respondents that expert opinion is only necessary when the expert has to form an opinion to the situation expressly contained in Section 57 Evidence Act which broadened out to include Science or Art and to admit Art of Banking.

Counsel draw succour from the opinion of Fidelis Nwadialo in his book, Modern Nigerian Law of Evidence, 2nd Edition published in 1999, where at page 213 he opined as follows:-
“the terms science and art, include not only the well-established disciplines and branches of knowledge under these two headings, but also almost any matter which is the subject of special knowledge”.

Counsel also contends that the trial court did not suo moto raised fresh issue as to whether the maker of Exhibit ‘V’ is a tainted witness or it was made during the pendency of the case and should not be attached any weight but it was the Appellant who first raised it and the trial court had to deal with it. No miscarriage of justice was suffered by the Appellant. (see pages 159-160 of the records)

Counsel further contends that the testimonies of PW3 was never contradicted in any way but rather the sole witness of the Appellant corroborated the several anomalies committed by the Appellant as highlighted by the expert witness via Exhibit ‘V’. PW3 was not cross-examined on the anomalies and any unchallenged, un-contradicted, unshaken evidence amounts to acceptance. Counsel placed reliance on the case of Bolanle Abeke v. The State (2007) 3 S.C. (Pt. 11) @ page 112, where Oguntade JSC held as follows:-
“it is noted that this PW4 the expert was not contradicted, and was not cross-examined as to the accused not signing Exhibit B, and to me, his credibility remains untainted due to failure to elicit any evidence adverse to the opinion of PW4 which is a basis to believe the said PW4”.
(Refer Omo v. Judicial Service Commission & Ors (2000) 3 N.S.C.Q.R 29 @ 45, Gaji v. Paye (2003) FWLR (pt. 163) 1, Mia & Sons Ltd v. FHA (1991) 8 NWLR (pt. 209) 295, 298 page 313 paras. E-H, Ferguson v. Comm. For Works, Lagos (1999) 4 NWLR (pt. 638) 315 @ 328, Chukwu v. D’ala (1999) 6 NWLR (pt. 608) 674 @ 681, Ilf Nigeria Limited v. Sillo (1994) 7-8 SCNJ 199 @ 133, Boshali v. Allied Commercial Exporters Ltd (1961) 1 ALL NLR 917)

The Counsel contends that Exhibit ‘V’ speaks volumes on its own and was not in any way faulted or contradicted.
A very thorny point argued under this issue seems to be the decision of the trial judge to incorporate Exhibit ‘V’ and the testimony of PW3 whom the learned judge held to be an expert. The Appellant is not satisfied that the said witness has been shown to be an expert when it held at page 214 line 16-20 of the record as follows:-.
“the witness I hold has by his evidence been able to prove that he is an expert in the field of aft in question which is banking. The witness based on expert in his field”

PW3 started his testimony by reading out his qualification in an open court which was not contested and I therefore concur with the trial court in holding the witness to be an expert in the field of banking, (page 119-120 of the record)

A lot of energy was expended on the issue of “banking”, “bank” and the provisions of Sections 92 (1), 91 (3) & 57 (1) of the Evidence Act, E14 LFN, 2004.

It is not in doubt that at the trial court, the Appellants were given all the opportunity to cross-examine the PW3 that is, the maker of Exhibit ‘V’ against which the weight of complain of this appeal lies and who offered himself as expert witness. The Appellant failed to prepare their own statement of account to discredit that of PW3. Indeed this made the learned trial Judge to deserve on page 234 lines 13 & 14 of the record as that…
“it is surprising that the defendants’ Counsel did not cross-examine the plaintiffs witness on this issue”.

It is not the practice of this court to take and evaluate evidence which is the exclusive preserve of the trial Court. This court intervenes only if a miscarriage of justice occurs rendering the decision of the trial court perverse and insupportable, (Refer Odofin v. Ayoola (1984) NSCC 711 @ 730, Oyedeji v. Akinyede (2003) 3 NWLR (Pt.755) 586 @ 617-617, Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252 @ 293-294)
It is also the position of the law that the weight to be attached to admitted evidence is basically the responsibility of a trial judge as he is the person that has the advantage of evaluating the evidence led before him, having watched the demeanour of the witnesses who testify before the Court. The appellate court will not temper with any finding that comes out from the labour of the trial Judge without good compelling indication of a miscarriage of justice. No incidence of such miscarriage has been established beyond the allegation of the Appellants.

It is important to state at this point that the argument of the Appellant to the effect that the learned trial judge relied solely on Exhibit ‘V’ and the evidence of the expert witness to arrive at a decision is unfounded. From the record, his lordship compared the arguments of both sides and weighted them on the imaginary judicial scale and considered all the evidence before him in arriving at the judgment. These explain why his lordship was amazed that the witness of the Respondent was not cross-examined on some vital comments on the state of the records of account kept by the bank. It appears to me, self-contradictory to accuse the learned trial Judge of relying on only a certain aspect of the evidence adduced and also saying that the Judge turned inquisitorial by reading and comparing the tabulations made in the financial report. How else is a Judge to determine the truth of a matter if not by way of comparism? Placing the evidence of each witness on an imaginary scale is a comparism to determine which evidence is heavier/has more weight to be relied upon. Feather weight evidence will easily fly up in total surrender to the weighty evidence of the other party as in this case. From the position of the law and its application by the trial court, above I see no reason why this court should interfer with exhibit ‘V’, the testimony of the expert that remained uncontroverted at the trial court and other evidence adduced at the trial court.

The Appellant also contended that the trial Judge raised the issue suo muto on Section 91(3) of the Evidence Act and without calling on the parties to address him on that and therefore same occasioned miscarriage of justice. The same Appellants in their argument stated that parties did not join issues on Section 91(3) Evidence Act. To my mind, the law is that where parties did not join issues on particular issue, that issue is deemed admitted by them and the Appellants in this case cannot resurrect same in this appeal.
I agree with the trial Judge and resolve this issue in favour of the Respondent.

Issue two

The Appellants challenged the award of damages made by the trial court. This is a discretionary power again which this court may interfere with only upon condition of non-judicious exercise. The Appellant contended that the Respondent did not lead evidence to entitle them to the damages claimed on the dishonoured cheques and that the court has no power to grant what is not asked by the Plaintiff. They placed reliance in the case of Olurotimi v. Ige ( 1993) 8 NWLR (pt 311) 257.

The other leg of their argument on this issue is that the trial Judge did not apply the provision of Section 57 of the Bill of Exchange Act Cap 35 LFN 1990 properly particularly as he left the interest to be paid by the Appellant open ended.(Refer Trade Bank Plc v. Dele Morenikeji (Nigeria) Limited (2005) 6 NWLR (pt. 921) 309 @ 336, UBN Plc. V. Okubama (2000) 14 NWLR (pt. 688) 579 @ 589, Maja v. Samouris (2002) 7 NWLR (Pt.765) 78 @ 102)

The Respondents find nothing wrong with the application of the law by the learned trial Judge. The Respondent is a business venture and needs not prove the damages suffered specifically, especially where it has been proved that there was sufficient fund in the account without justifying why the cheque was not honoured. They placed reliance on the cases of Dike v. ACB Ltd. (2000) Commercial Law Reports Quarterly page 72 @ 94, Hairat Aderinsola Balogun V. N.B.N. Limited (1987) 3 SC 155, Allied Bank Nig. Ltd V. Akubueze (1997) 6 NWLR (pt 509) 374.

On Section 57 of the Bill of Exchange Act cap 35 LFN 1990, it is my view that the trial Judge based his judgment on this provision to the effect that, where a bill is dishonoured the measure of damages is deemed to be liquidated. The Appellant have not denied dishonouring the cheque. The measure of the damages as provided by the said Act includes:
– the amount of the bill
– interest thereon from the time of presentation
– the expenses of noting or when protest is necessary and protest has been extended, the expenses of the protest.
Based on the provision of the Act the learned trial Judge was right in the award of the sum on the face of the dishonoured cheques, as there was sufficient fund in the Respondents account and no reason was given why the cheques were not honoured nor were informed the Respondent of the dishonoured cheques which is a breach of contract and entitles the Respondent to substantial damage, (see page 230-232 of the records & Refer Rolin v. Steward (1854) 14 C.B. 595, H. A. Balogun v. N.B.N Limited (1978) 3 SC 155. In the case of Wilson v. United Countries Bank (1920) A.C. 102 @ 112, Lord Birkenhead explained the reason for this principle as follows:-
“the ratio decidendi in such cases is that the refusal to meet the cheque, under such circumstances, is so obvious to the credit of a trader that the latter can recover without allegation of specific damage reasonable compensation for the injury done to his credit.”
On the interest to be paid on the value of the dishonoured cheques, the interest should have been worked out and specifically stated in the judgment of the learned trial court, reason being that once a court delivers a judgment it becomes functus officio. Leaving the judgment open ended as regard interest on the said sum to be worked out and added to the amount awarded is tantamount to leaving some part of the case unresolved for a comeback to resolve the issue should there be a any disagreement in working out the interest. I agree with the submission of the Appellant on this point.
Issue 2 is resolved partly in favour of the Appellant and partly in favour of the Respondent. The court is not allowed to give an open ended Judgment. Court must give an unequivocal order.

Issue three

The Appellants adopted part of their argument on Exhibit ‘V’ and the evidence PW3 contending that since the Respondents admitted owing the Appellants Three Million Naira (N3, 000,000.00) via exhibit ‘U’, the trial court ought to have granted their counterclaim in respect of that amount admitted by the Respondents with its accrued interest since August, 2002. (Refer page 78 & 128-139 of the records and the cases of NBN Limited v. Guthrie (Nigeria) Limited (1993) 3 NWLR (Pt.284) 643, Anason Farms Limited v. NAL Merchant Bank Limited (1994) 3 NWLR (Pt. 331) 241)

The Respondents conversely, argued that they acted in error and out of ignorance when they admitted the said exhibit ‘U’. Respondents maintain it was the Appellant who is owing them as a result of the improper keeping of their banking transaction records. That upon realising the anomaly they called in an expert to advise them on the correct position of their account detail in line with Central Bank of Nigeria Regulations and Guidelines. It was the findings of the expert that informed/culminated the institution of their action at the trial court. They proved their case and the trial court found out after taking all the evidence that it is the Appellants that are owing the Respondents.

It is not in doubt from the evidence led that the Appellant has not led any credible evidence to proof their counterclaim nor did they make any serious effort to dislodge the claim of the Respondents by challenging the evidence led by them at the trial court. Exhibit ‘V’ exposed their iniquity. No interest accrues in respect of an un-established indebtedness. (Refer Owoniboys Technical Services Ltd v. Union Bank Plc (2003) 15 NWLR (Pt. 844) 545).
I agree with the trial Judge when he held at page 238 line 31 to page 239 line 1 of the records that:-
“I hold that the defendant’s counter-claim fails having not been proved…”

Issue 3 is resolved in favour of the Respondents.
This appeal lacks merit except the part that relates to the award of interest ordered “to be worked and added” to the amount on the dishonoured cheques; as it is open ended. In other words, the learned trial Judge having failed to work out and apply the interests, no interest is payable on the damages ordered.
A cost of N30,000.00 is hereby awarded to the Respondents against the Appellants.
It is hereby so ordered.

CHIDI NWAOMA UWA, J.C.A.: I read the draft of the judgment delivered by my learned brother M.B. Dongban-Mensemi JCA. I agree with his reasoning and conclusion arrived at in holding that the appeal lacks merit. I abide by the order made as to costs in the lead judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the succinct judgment pronounced by my learned brother, Dongban-Mensem, J.C.A., in which I fully concur.
The court below held on page 232 – 233 of the record of appeal that –
“By virtue of Section 57 of the Bills of Exchange Act Cap.35 Laws of the Federation of Nigeria 1996 where a bill is dishonoured, the measure of damages is deemed to the liquidated damages. This means that the plaintiff is entitled to just the following as damages.-
(1) The amount of the bill.
(2) Interest thereon from the time of presentation.
(3) The expenses of noting or when protest is necessary and the protest has been extended, the expenses of the protest.
Based on the above, the total amount of the two cheques is N36, 709.22k. Interest payable on the two cheques form the time of presentation should be worked out and added to the above stated amount plus N20, 000.00k which I award as the expenses on the protest.”

The calculation of the interest payable on the dishonoured bill of exchange was left at large. It was the duty of the court below to work out the quantum of the judgment debt and award it to the deserving party, not to leave it for speculation. A judgment awarding damages cannot be given by installment. It has to be given in one package. Difficulty in assessing damages or compensation is not a ground for refusing to award any damages. A definite award must, in all the circumstances of the case, be made by the court – See Chaplin v. Hicks (1911) 2 K.B. 786, Bovet v. Walter (1917) 62 S.J. 104 followed in Olutimehin and Ors. v. Lagos City Council (1968) A.N.L.R. 517.
For the reason given above, I too would allow the appeal in part and abide by the consequential order on costs contained in the said succinct judgment of my learned brother, Dongban-Mensem, J.C.A.

Appearances

Oyeyemi K. TemitopeFor Appellant

AND

Mrs. M. AworemiFor Respondent