GUARANTY TRUST BANK v. GODWIN SUNDAY OGBOJI
(2019)LCN/13270(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/A/336/2016
RATIO
LAW OF CONTRACT: INTENTION OF PARTIES TO BE FOUND IN CONTRACT IF WRITTEN
The intention of the parties is always to be gathered from the document of contract, where the contract is written. The duty of the Court when it comes to the terms of the contract is not to determine what the terms are, but to construe the words used by the parties in the agreement. DANTATA V. DANTATA (2002) 4 NWLR (PT. 756) 144 CA.PER ABUBAKAR DATTI YAHAYA, J.C.A.
NATURE OF RELATIONSHIP BETWEEN BANK AND CUSTOMER
The relationship between a bank and its customer is contractual. PURIFICATION TECH. (NIG) LTD V. A.G. LAGOS STATE (2004) 9 NWLR (PT. 879) 665. It consists of general and special contracts arising from the particular requirements of the banking business. The relationship varies and can be said to be that of debtor and creditor where there is sufficient credit balance in the client’s account. Therefore each banker/customer relationship must thus be considered on its merit.PER ABUBAKAR DATTI YAHAYA, J.C.A.
EVIDENCE: HOW TRIAL COURTS SHOULD HANDLE EVIDENCE
The procedure in our Courts is that a trial Court before which evidence is adduced by the parties in a civil case, comes to a decision as to which evidence it believes or accepts and which evidence it rejects. The Court will first put the totality of the evidence adduced by both parties on an imaginary scale and weigh them together. The Court will then determine which is heavier by the quality or the probative value of the testimony of each witness. – UKEJE V. UKEJE (2014) 11 NWLR (PT 1418) 384. PER ABUBAKAR DATTI YAHAYA, J.C.A.
BANKING LAW: DUTY OF BANKS TO CUSTOMERS
It is the duty of bankers to their customers to receive monies, cheques, and other instruments and to pay cheques and other withdrawal authorities properly drawn by the customer during banking hours at the branch where the account is kept or elsewhere as agreed. – NWOSU V. ZENITH BANK PLC (2015) 9 NWLR (PT 1464) 314.PER ABUBAKAR DATTI YAHAYA, J.C.A.
BANKING LAW: WHAT IS A CHEQUE?
The question now is that what purpose do cheques serve? What is a cheque? In the case of ABEKE V. STATE (2007) 9 NWLR (1040) 411 AT 432 PARAS G – H, a cheque is said to be: a written order to a bank to pay a certain sum of money from one’s bank account to oneself or to another person. It is for all intents and purposes an Instrument forpayment. It metamorphoses into physical cash on due presentation at the bank, and that makes it a legal tender. In other words, a cheque is always regarded as a legal tender or an instrument for payment once it is duly completed and signed with date.” (Underline mine)
The key words here are instrument for payment, a vehicle by which funds are moved in and out of an account and which is to be honoured by the bank upon presentation by its customers.PER ABUBAKAR DATTI YAHAYA, J.C.A.
BANKING LAW: INSTRUMENTS FOR PAYMENT THAT FALL INTO THE SAME CATEGORY AS CHEQUES
As such, it is my opinion that any instrument for payment by whatever nomenclature referred to, which serves the same purpose a cheque does, will fall into the same category as cheques and be treated as such by our Courts, and will be covered by the nature and definition of cheques as contemplated by the court in ABEKE V. STATE (SUPRA). This means that all relevant authorities relating to dishonoured cheques will apply here.PER ABUBAKAR DATTI YAHAYA, J.C.A.
APPEAL: WHEN APPELLATE COURT WILL NOT INTERFERE IN THE DAMAGES AWARDED BY THE TRIAL COURTS
An appellate Court will not interfere with the award of damages made by a trial Court except in the following cases:
a. A trial Court has acted under a mistake of law;
b. The trial Court has acted in disregard of known principle, or acted on no principles at all;
c. The trial Court has acted under a misapprehension of facts;
d. The trial Court has taken into accounts irrelevant matters or failed to take account of relevant matters;
e. Injustice would result if the appeal Court does not interfere; or
f. The amount awarded by the trial Court is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of damages.
See ADEKUNLE V. ROCKVIEW HOTEL LTD (SUPRA) AT PAGE 174; MTN (NIG) COMM. LTD V. C.C. INVESTMENT LTD (2015) 7 NWLR (PT. 1459) 437 AT 476.PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
GUARANTY TRUST BANK Appellant(s)
AND
GODWIN SUNDAY OGBOJI Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment Hon. Justice M. B. Idris of the High Court of the Federal Capital Territory, Abuja (trial Court) delivered on the 7th of March, 2016.
From the statement of claim filed by the plaintiff, now respondent, breach of contract was said to have been committed against him by the appellant when the appellant failed to honour a request for withdrawal by the respondent from his domiciliary account at the appellant bank, even though he had more than enough funds to cover the amount he sought to withdraw. The plaintiff/respondent prayed the following:
a) A declaration of Court that it is wrongful for the defendant to dishonour the domiciliary withdrawal form filled and presented by the plaintiff on 22nd August, 2014 when he had adequate fund in his said domiciliary account to meet his demand.
b) A declaration of Court that the wrongful dishonour of the plaintiff’s domiciliary withdrawal form filled and presented to the defendant on 22nd August, 2014 amounts to breach of contract.
c) The sum of (Five Hundred Million Naira Only) as
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general damages against the defendant for the wrongful dishonour of the plaintiff’s domiciliary form, breach of contract and for the pains, trauma, distress, humiliation, embarrassment and discomfort suffered by the plaintiff because of the act of the defendant refusing to honour his domiciliary withdrawal form.
d) The sum of N5, 000,000.00k (Five Million Naira Only) special damages against the defendant incurred as solicitor’s fee.
The appellant as defendant denied the claim and on exchange of pleadings, the matter went to trial at the end of which, the trial Court found for the plaintiff/respondent in the sum of N1, 500,000.00 as general damages against the defendant/appellant for breach of contract.
Dissatisfied, the appellant filed a Notice of Appeal against the judgement on the 10th of June, 2016 but deemed filed on the 23rd of October, 2017.
The facts briefly are that the respondent opened a domiciliary account with the appellant, and that on the 22nd of August, 2014, the respondent along with some of his clients visited the appellant’s branch at Garki Area 3 to withdraw the sum of $3,500 (three thousand five hundred dollars). The
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withdrawal form was dishonoured and returned with the words “inflow” inscribed on it and he was not paid, which according to the respondent, caused him serious embarrassment, humiliation, trauma and colossal disgrace to his person. This is what led to the Suit before the trial Court.
The appellant’s brief settled by J. M. M. Majiyagbe Esq., was filed on the 5th of December, 2017. In it, two issues for determination were formulated:
1. Whether the trial judge was right to hold that paragraphs 1 and 23D of the Respondent’s account-opening form (Exhibit DI) did not provide a defence to the appellant because inter alia, it did not explain what “inflow” inscribed on exhibit PI meant and also there was evidence before the Court that other customers were paid US Dollars in cash on the day in question.
2. Whether the circumstances of the case as regards pleadings and evidence, the learned trial judge was right to award N1.5 million as general damages on the apparent basis that the dishonour of the respondent’s cash withdrawal form meant his reputation would be damaged.
?
The respondent’s brief settled by Godwin Sunday Ogboji Esq was filed on the
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19th of January, 2018 wherein he formulated a single issue for determination to wit:
1. Whether by the facts and circumstances of this case as regards pleadings and evidence, the learned trial judge was right in holding that the appellant contract with the its breached respondent, thus entitling the respondent to the award of damages for breach of contract.
I shall utilize the issues raised by the appellant in resolving this appeal.
ISSUE ONE
Whether the trial judge was right to hold that paragraphs 1 and 23D of the Respondent’s account-opening form (Exhibit D1) did not provide a defence to the appellant because inter alia, it did not explain what “inflow” inscribed on Exhibit P1 meant and also there was evidence before the court that other customers were paid US Dollars in cash on the day in question.
Learned counsel to the appellant divided the argument under issue one into two sub – headings vis:
a. Exhibit D1 provided a complete defence for the appellant
b. No obligation to adduce evidence on meaning of “inflow” & lack of evidence that other customers received cash on the day in question.
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On a. above, counsel to the appellant submitted that Exhibit D1 which sets out the terms and conditions upon which the domiciliary account is to be operated, absolves the appellant of the alleged breach of contract. This, counsel added is because clause 1 at the bottom of Exhibit D1 clearly states that “cash withdrawal from my/our account shall be subject to availability” means that the account holder can only expect cash payment in US Dollars on demand subject to availability of US Dollars in cash at the bank. But can utilise other means such as banking facilities to initiate a transfer or receive same in local Nigerian currency.
Counsel further argued that the position taken by the respondent and the learned trial judge that the import of the clause refers to “only when I have money, I will approach the bank” meaning withdrawal shall be subject to availability of funds in the account, is erroneous. He relied on the Supreme Court case of BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010) 16 NWLR (PT 1220) AT 633 where it was held that:
“When parties have used clear and unambiguous words, such words must be given their plain interpretation.”
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Counsel similarly relied on the case of UNION BANK NIG LTD & ANOR V. NWAOKOLO (1995) 6 NWLR (PT. 127) 154 in submitting that the clause cannot be construed to mean that cash can only be withdrawn when an account holder has money in his account. And that since the bank cannot be expected to operate by giving funds to individuals who do not have monies in their accounts except where a loan has been applied for, the clause can only mean availability in the bank itself.
Learned counsel argued that clause 23D of Exhibit DI which states “that all funds standing to my/our credit are payable on demand only on such local currency as may be in circulation” further clears any doubt as to the fact that it was the bank and not the account holder’s account that was being referred to. He argued that what paragraph 23D means when taken in conjunction with clause 1 is that the account holder can only receive cash in dollars when same is available in the bank. But if the account holder wants to access the funds standing in his/her credit in that account he/she can receive same in local currency.
Learned counsel further argued that although the learned trial judge at
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page 10 of his judgement stated that Exhibit D1 applies to account opening in respect of local currency and the only applicable terms in respect of domiciliary account are contained in clauses 1 – 4 on pages 1 – 2 of Exhibit D1 on page 2 of Exhibit D1, a consideration of Exhibit D1 shows that it is an account opening form for domiciliary accounts. This is more so as the form is titled “Foreign Currency Domiciliary Account Opening Form”. And that there is no mention of Nigerian Naira amongst the list of Currencies listed on the form.
Counsel submitted that clause 23D is one of the conditions specified on the form and that, clauses 1 – 4 and 23D are all part of the same document which makes all the terms mutually inclusive to govern the parties regarding the domiciliary account
