GUARANTY TRUST BANK v. MOTUNRAYO-TOLULOPE ALEOGENA
(2019)LCN/12777(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/L/461/2016
RATIO
COURT AND PROCEDURE: WHETHER IT IS THE DUTY OF THE COURT TO VERIFY DOCUMENT
“I must say, that it is not the duty of a Court or Tribunal to act within the realm of conjuncture in determining what a document so tendered relates to, or for what purpose it was meant to serve by tendering it, or to proceed to embark on making inquiry into the case outside the Court not even by examining of such documents which are in evidence but not examined in open Court. A judge is an adjudicator and not an investigator. See Queen v. Wilcox (1961) 1 SCN LR 296; (1961) 1 All NLR 633, Dennis Ivienagbor vs. Henry Osala Bazuaye (1999) 6 SCNJ 235 at 243 Fawehinmi vs. Akinlaja (2010) LPELR 8963. The petitioner’s/appellant’s failure to lead oral evidence to link the documents with what he pleaded in the petition therefore justifies the Tribunal to refuse to act on them as it is not the Tribunal’s function to speculate on what such documents were meant to specifically establish or prove. See also Bakut & Anor vs Ishaku & Ors (2015) LPELR- 41858 (CA); Alapa & Anor vs. INEC & Anor (2015) LPELR-41775 (SC).” PER EBIOWEI TOBI, J.C.A.
CONTRACT: MASTER/SERVANT RELATIONSHIP
“The Respondent’s money is in the custody of the Appellant and therefore the contractual relationship between them gives the Respondent the upper hand as the creditor and the Appellant as debtor. Stretching it further the Respondent is the master while the Appellant is the servant. See Fidelity Bank vs. Onwuka (2017) LPELR 42839(CA); Wema Bank vs. Osilaru, (2008) 10 NWLR 9 (Pt. 1094) 150; Ecobank vs. Anchorage Leisure Ltd & Ors, (2018) LPELR-45125 (SC); Sani Abacha Foundation for Peace & Unity vs. UBA Plc (2010) 2 FWLR (Pt. 527) 4519; Bank of the North Ltd vs. Yau, (2001) 10 NWLR (Pt. 721) 408.” PER EBIOWEI TOBI, J.C.A.
CONTRACT: PRIVITY OF CONTRACT
“Similarly, in Basinco Motors Ltd vs. Woermann-Line & Anor (2009) 13 NWLR (Pt. 1157) 149, Adekeye, JSC held: ‘From the forgoing, it becomes really necessary to explain what is privity of contract. Portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In short only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his?.him liable upon it. Moreover the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract. Negbenebor vs. Negbenebor (1971)1 ALL NLR 210; Ikpeazu vs. A.C.B. Ltd. (1965) NMLR 374; K.S.O. Allied Products, Ltd vs. Kofa Trading Co. Ltd. (1996)3 NWLR (Pt. 436) pg. 244; Alfotrin Ltd vs. A.G. Fed (1996)8 NWLR (Pt. 475) pg. 634. The foregoing doctrine admits of exceptions which are not applicable to the position of a Notify Party in a bill of lading on any relationship based on a bill of lading. It is however now settled by a plethora of cases that by virtue of Section 375(1) of the Merchant Shipping Act, 1990 only a consignee of the goods named in a bill of lading or an endorse whom the property in the goods have passed and by virtue of those facts will be able to sue on a bill of lading contract.'” PER EBIOWEI TOBI, J.C.A.
CONTRACT: WHETHER REFUSAL OF A BANKER TO PAY CHEQUE IS BREACH OF CONTACT
“In other words, a refusal by a banker to pay a customer’s cheque upon presentation when there is in his account an amount equivalent to that endorsed on the cheque belonging to that customer amounts to a breach of contract for which the banker is liable in damages. See; HASTON (NIG) LTD VS. ACB PLC. (2002), 11 SCM 119. Where a banker dishonours a customer’s cheque without justification, it is liable to the customer in damages for injury to his reputation. See BALOGUN VS. NATIONAL BANK OF NIGERIA LTD (2012) 1 BFLR 194 at 203; DIKE VS. AFRICAN CONTINENTAL BANK LTD (2000) 5 NWLR (PT. 657) 441; UBA VS. UNION BANK OF NIGERIA PLC (1995) 5 NWLR (PT. 405) 72. Thus, a bank is under obligation to honour a cheque issued by a customer, if such customer has enough fund in his account to satisfy the amount payable on the cheque issued. Failure or refusal by the bank to honour the cheque amount to a breach of contract and would render the bank liable in damages. See also CITIBANK (NIG) LTD VS. IKEDIASHI (2014) LPELR 22447 (CA).” PER EBIOWEI TOBI, J.C.A.
DAMAGES: GENERAL DAMAGES
“A party in an action whom a Court has established has been wronged is entitled to damages which the Court will assess as flowing from the wrong he has suffered. There are two broad aspects of damages, special and general damages. Special damages must be specifically pleaded and proved. General damages on the other hand do not need to be specifically pleaded and proved. General damages serves as compensation for the wrong suffered, it flows as natural consequence of the wrong suffered. See; NBC Plc vs. Ubani (2014)4 NWLR (Pt. 1379) 421; G.K.F. Investment (Nig.) Ltd vs. NITEL Plc (2009)3 NWLR (Pt. 488) 7107. In Odelola vs. Odelola & Ors (2016) LPELR-42222 (CA) this Court per Tukur, JCA at pages 18-2” PER EBIOWEI TOBI, J.C.A.
EVIDENCE: WHERE THERE IS A CONFLICT IN EVIDENCE
“In legal parlance, such contradictions must be material to the case at hand to be taking seriously by the Court. In Princent & Anor vs. State (2002) 12 SC (Pt. 1) 137, Iguh, JSC held: ‘The law is firmly settled that for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to its case, such conflict or contradiction must be material, substantial and fundamental to the main issues in controversy between the parties before the Court thus creating some doubt that the accused is entitled to benefit from. See; Nasamu vs. The State (1979) 6-9 SC 153, Onubogu vs. The State (1974)1 All NLR (Pt. 2) 5; Ibe vs. The State (1992)5 NWLR (Pt. 244) 642 @ 649; Azu vs. The State (1993)6 NWLR (Pt. 299) 303 @ 316; Wankey vs. The State (1993)5 NWLR (Pt. 295) 542@552 etc. where conflict or contradictions in the evidence of the prosecution witnesses raise no doubts as to the guilt of the accused, the only duty of the trial Judge is to observe and comment on them as such and no more. Such contradictions are not fatal to the prosecution?s case. See Inyere Akpuenya vs. The State (1976)11 SC 269@276; Sunday Emiator vs. The State (1975) 9-11 SC 107 @ 112; Azu vs. The State (1993)6 NWLR (Pt. 299) 303@316 etc.'” PER EBIOWEI TOBI, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
GUARANTY TRUST BANK Appellant(s)
AND
MOTUNRAYO-TOLULOPE ALEOGENA (NEE OYESOLA) Respondent(s)
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment):
In suit No LD/1697/12 at the lower Court being the Badagry Division of the Lagos High Court, the Claimant (Respondent in this appeal) sued the Defendant (Appellant in this appeal) for the sum of N15,000,000 as damages for breach of contract and for the cost of prosecution of the suit. The facts of the case at the lower Court are that the Claimant is a customer to the Defendant?s bank. She operates the account in one of the Defendant?s branches in Lagos. She obtained an ATM card from the Defendant bearing the sign of the Defendant Bank. It is a Masters Card No. 539983061482. She traveled to the United Kingdom in June 2012 for the purpose of giving birth to a baby. She used the ATM Card in a Barclays Bank Machine in Broadway Stratford London. She sought to withdraw 800 pounds on 26/7/12. Though her account was debited but the money was not released to her. She made a report on Exhibit CWA which is the copy of the dispute form. The Defendant responded by Exhibits CWB and CWC to the effect that it is been investigated and that within 45 days the refund will be made.
Eventually on 19/9/2012, the refund was made. The Claimant said that she suffered as a result of this development as she had to beg friends to assist her with money within the period. Consequent upon this, she instituted the action.
The Defendant in their defence did not deny the development but stated that the ATM Card is owned by Masters Card international and it is therefore not liable based on the limited Liability Clause as stated in the Master Card Charge back guide. It is the firm evidence of the Defendant (Appellant) that the disclosed principal of the ATM Card being Master Card should be sued and held liable and not GTBank.
The lower Court at page 312 of the records identified the real issue or claim of the Claimant in these words:
‘As stated earlier in this judgment, the grievance of the Claimant is simply that the Defendant breached their customer Banker relationship by the failed ATM transaction of 26th July, 2012 which caused her great hardship.’
Haven identified the real issues, the lower Court held in page 322 of the records as follows:
This shows the connection between the ATM Machine, MasterCard GTB, the defendant and GTB can therefore not deny liability of responsibility and a breach. The ATM Card constitutes a contract that once it is inserted and there is sufficient money to the credit of the Customer money will be dispensed. The fact that the Machine did not dispense money and that the Claimant?s account was adequately funded are not in dispute, as parties are ad idem on same. For loss of expectation, Inability to access money when needed, the Defendant is in breach of the contract of the contract between it and Claimant and I so hold.
The lower Court went further in pages 327-328 of the record which is part of the judgment of the lower Court found in pages 293-328 of the records as follows:
‘The Claimant has proved her claim with cogent, precise and credible evidence. The case of the Defendant is just mere denial of responsibility towards the Claimant which does not hold water as there is enough evidence before this Court that the Defendant itself debited her account immediately after the withdrawal attempt on 26/07/12I therefore believe the evidence of the Claimant that she indeed suffered greatly and was helpless and had to seek for financial help. A pregnant woman in a foreign land with her anticipation cut short unexpectedly. Her evidence that within that period she sought for financial help from ?friends and foe? alike is unchallenged.I do not agree with the submission of Learned Counsel to Defendant that the Claimant is not entitled to damages.The Claim of the Claimant in damages succeeds and the sum of N3,000,000.00 (Three Million Naira Only) is granted as damages for breach of contract. I am of the view that the circumstances of the case, the Defendant shall pay the cost of this action assessed at N100,000.00k.’
The Defendant dissatisfied with the judgment filed two notices of appeal dated 8/2/16 and 17/3/16. The notice of appeal filed on 8/2/16 was withdrawn. This appeal was predicated on the notice of appeal filed on 17/3/16. This notice of appeal contained 10 grounds. The Appellant?s brief of argument was settled by its counsel Lekan Oni Esq. It was filed on 28/6/16 but deemed on 6/12/18. The Appellant?s Counsel in the brief raised 5 issues for determination. They are:
i. Whether it was proper for the Learned Trial Judge to have admitted and relied on evidence of facts not pleaded in her judgment (grounds 2 and 3 of the Grounds of Appeal)
ii. Whether there were contradictions in the evidence of the Respondent to affect its credibility (Ground 1 of the Grounds of Appeal)
iii. Whether from the evidence before the Court and the facts pleaded, the Appellant was liable in breach of contract (Grounds 5, 6, 7 and 11 of the Grounds of Appeal)
iv. Whether in the circumstances of the case the Learned Trial Judge was right grant relief to breach of contract (Grounds 8 and 9 of the Notice of Appeal)
v. Whether the Learned Trial judge was fair to the Appellant when the lower Court did not consider nor pronounce on the material issues raised by the Appellant in its defence and whether such amounted to a denial of fair hearing (Ground 10 of the Grounds of Appeal).
Learned counsel for the Appellant addressing issue 1 submitted that the lower Court was wrong to have admitted and relied on Exhibit DWC which was not pleaded.
He relied onKyari vs. Alkali (2001) 11 NWLR (Pt. 724) 412; Ogu vs. Manid Technology & Multipurpose Co-operative Society Ltd (2011) 8 NWLR (pt 1249) 345; Union Bank Plc vs. Sparkling Breweries Ltd (1997) 3 NWLR (Pt. 491) 29. The issue of Exhibit DWC came up during address of counsel and this does not qualify as evidence. Counsel cited Calabar C. C. T & C Soc. Ltd vs. Ekpo (2008) 25 WRN 1 and Abubakar vs. Joseph (2008) 50 WRN 1.
Addressing issue 2, counsel submitted that there are contradictions in the evidence of the Respondent which should have discredited the evidence of the Respondent. It is counsel?s submission that there was contradiction between the Respondent evidence in Court and Exhibits CWB and CWC. Counsel brought out the various aspect of the contradiction in submitting that the lower Court should have declared the evidence of the Respondent unreliable. He referred to Lateef Shofolahan vs. State (2013) 49 WRN 139.
The Appellant was not liable since the ATM Card delivered to the Respondent was valid and functional; this is the submission of counsel on issue 3. It is also submitted that the Respondent did not discharge the burden placed on her to show that the Appellant made representation to her that the ATM card is functional in all ATM Machines. He relied on Veepee Industries Ltd vs. Cocoa Industries ltd (2008) 37 WRN 147. It is further submitted that the ATM Machine does not belong to the Appellant; the Appellant is not liable especially as the Appellant is not in control of the payment. The Card is operated by MasterCard who is the disclosed principal of the Appellant and therefore it is not liable. Counsel referred to Akinmade vs. Ajayi (2008) 34 WRN 175; Oforkaja vs. Taraba State Government (2003) FWLR (Pt. 178) 1038; PWOL vs. Union Bank of Nigeria Plc 1 NWLR (Pt. 588) 631 in submitting that since that evidence was not challenged it is to be accepted by the Court. This is counsel submission on issue 3.
In addressing issue 4, relying on Ahmed vs. CBN (2013) 47 WRN 51; Durowaiye vs. UBN (2015) 16 NWLR (pt 1484) 19, it is submitted that the Respondent has not proved her entitlement to damages and therefore this Court can overturn the damages awarded. The Respondent continual withdrawal of money from the account after the 26/7/2012 shows that her evidence that she went begging is not one that should be accepted. It is counsel further submission that the N3,000,000 awarded is too much, he referred to MMA vs. NMA (2013) 29 WRN 28.
The lower Court in the judgment, counsel submitted denied it fair hearing when the Court did not consider or pronounce on material issues raised by it in the lower Court. This is enough to set aside the judgment. He referred to Dongari vs. Sa-anun (2014) 19 WRN 149; Virgin Nigeria Airways Limited vs. John Roijien (2014) 8 WRN 61; Yusuf vs. Adegoke (2008) 40 WRN 1; Ali-Ucha vs. Elechi (2012) 28 WRN 1 and Abuja Trans-National Market vs Abdu (2008) 1 WRN 43. The inability of the lower Court to pronounce on the validity of the ATM Card amounts to denial of fair hearing. This submission on issue 5 summed up the argument of the counsel to the Appellant when he adopted the brief of argument on 23/01/2019.
The Respondent’s brief of argument was filed on 12/10/16 and deemed on 6/12/18. This was adopted by the Respondent’s counsel Rotimi Adeniyi Esq., counsel raised 4 issues for determination which are:
(a) Whether in the evaluation of the evidence before the trial judge who listened to the evidence of the parties, was right and her finding unassailable when she came to the conclusion that; (i) there are no material contradictions in the evidence of the Respondent?s witness to discredit her testimony and (ii) that there is no evidence before the Court of any document limiting the liability of the Appellant? (Grounds 1, 2 and 3)
(b) Whether the learned trial Court was right, upon the evaluation of the evidence before the Court and testimony of the witness to have come to the conclusion that there was a contractual relationship between the Appellant and the Respondent and that the Appellant was in breach of the said contract? (Grounds 4, 5, 6 and 7);
(c) Whether the learned trial Court was right, having found that there was a contract between the Appellant and the Respondent and that the Appellant was in breach of same to have come to the conclusion that the Respondent was entitled to general damage for the breach of contract occasioned by the Appellant? Grounds 8, 9and 11)
(d) Whether in the circumstances of the case the pleadings and testimony of the parties before the trial Court, the court could have been said not to have dealt with all the issues raised by the Appellant before the trial Court? (Grounds 10)
The Respondent filed a notice of preliminary objection which is in pages 334-335 of the records. This was argued in pages 2-3 of the submission of counsel. The objection filed on 5/10/16 is only on ground 9 which counsel submits is a point of mixed law and fact for which leave ought to have been sought since the ground of appeal is on cost. He relied on A.C.B. vs. Okonkwo (1997) I1 NWLR (Pt. 480) 194.
On issue 1, it is the submission of counsel that there was no material contradiction in the evidence of the Respondent before the lower Court to have any effect on the case of the Respondent whatsoever. It is also counsel submission that the document Exhibit DWC was pleaded and evidence given on it. He referred to Amuneke vs. State (1992) NWLR (Pt. 217) 347; Yahaya vs. State (2016) LPELR 40254; Owie vs Ighiwi (2005) All FWLR (Pt. 248) 1762 @ 1759; Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445; Fashanu vs. Adekoya (1974) 6 SC 83.Learned counsel for the Respondent relying on the totality of the case and the evidence before the lower Court submitted that there was a banker customer relationship between the parties which is contractual, referring to Allied Bank (Nig.) Limited vs. Akubueze (1997) 6 NWLR (Pt. 509) 374; Union Bank of Nigeria Limited vs. Nwoye (1996) 3 NWLR (Pt. 435) 135; UBN Plc vs. Chimaeze (2014) 9 NWLR (pt 1411) 166. It is submission of counsel that it is immaterial whether the card was used outside Nigeria as the Courts have decided cases supporting globalization of banking. Counsel referred to Mudiaga-Odje vs. Y.P.S. (Nigeria) Limited (2014) 5 NWLR (Pt. 1400) page 412 @ 433. It is submitted that the defence of frustration will not avail the Appellant as submitted by Appellant’s counsel since this was not pleaded, so it amounts to afterthought. He referred to Oyebamiji vs. Lawanson (2008) 15 NWLR (Pt. 1109) 122. This is counsel submission with respect to issue 2.
On issue 3, relying on UBA Ltd & Anor vs. Achoru (1978) 1 NWLR (Pt. 48) 172; Nzeribe vs. Dave Eng. Co. Ltd (1994) 8 NWLR (Pt. 361) 124; UBN Ltd vs. Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421) 558; M.W.T. (Nig.) Ltd vs. P.T.F. (2007) 15 NWLR (Pt. 1058) 451; Akinkugbe vs. Ewulum (2008) Vol. 6 MJSC 134 counsel submitted that damages was appropriately awarded in the light of the evidence.
Finally on issue 4, it is counsel submission that the lower Court addressed all the issues raised in the matter and therefore all the issues raised by him should be resolved in the favour of his client, the Respondent.
The Respondent also filed a notice dated 7/3/16 to vary the order by issuing a post judgment interest of not less than 10%. He referred to Order 9 (1) of the Court of Appeal Rules. Counsel also referred to Jallco vs. Owoniboys (1995) 4 NWLR (Pt. 391) 534 and Texaco Overseas Nig. Petroleum Co Unlimited vs. Pedmar Nig. Ltd (2002) 7 SCNJ 358.
The Appellant exercising the power to file a reply brief did so on 2/11/16 which was deemed on 6/11/18. On the preliminary objection, counsel submitted that since the judgment appealed against is final judgment there is no need for the Appellant to seek leave. He referred to UBN PLC vs. Toyinbo (2009) 13 WRN 143.
On submission of the notice for post judgment interest, Appellant?s counsel submitted that as there is no evidence to support that demand, this Court should not grant same, referring to Umo vs. Udonwa (2012) 36 WRN 24; UBA vs. Lawal (2008) 38 WRN 66; CFAO (Nig) Plc vs. Sanu (2009) 15 WRN 106. It is counsel final submission that the post judgment interest cannot be brought in by way of notice. He referred to Ajayi vs. AG of Ogun State (2008) 42 WRN 145.
The first thing to address here is the preliminary objection raised by the Respondent to the appeal which was filed on 5/10/16 wherein ground 9 was challenged on the premise that the Appellant should have sought leave as it is an appeal dealing with mixed law and facts. Ground 9 deals with the award of N100,000 as cost against the Appellant. The Appellant is not happy with this award and therefore in ground 9 appeals against this cost. The Respondent is of the view that the Appellant based on the provision of Section 241 (2) (c) of the 1999 Constitution of Nigeria and Section 14 (1) of the Court of Appeal Act, 2004 should have sought for leave. The combined reading of the above provision does not seem to agree with the submission of the Respondent. The provision of Section 241 (2) (c) provides that leave will be required if the only ground of appeal is on cost. The Supreme Court has confirmed this position in Joseph Ayanboye & Ors vs. Muritala Oladipo Balogun NSCQR (1990) 290. In Enwezor vs. Enwezor & Anor (2012) LPELR-8544 (CA) per Muktar, JCA, this Court held at pages 24-25 as follows:
‘Moreover, it is only when an appellant appeals solely on costs that he may require leave. Appeal on costs and other issues, not requiring leave, will not require the appealing party to seek for leave. In Anyaso Vs Anyaso (supra) Salami JCA (as he then was) observed thus: “When a party appeals to the Court of Appeal against the decision of a High Court solely as to costs there is no right of appeal except with the leave of the High Court or the Court of Appeal by virtue of Section 220 (2) (c) of the 1979 Constitution. However, the appeal on costs would be as of right if, in addition to appeal as to cost, there is appeal on other issue or issues. In the instant case ground 7 of the grounds of appeal is competent in view of the six other grounds of appeal raising other issues other than issue of costs.”
The appeal by the Appellant filed on 17/3/16 which is the notice of appeal upon which this appeal is predicated contains 10 grounds of appeal. The only ground of appeal dealing with cost is ground 9. The other 9 grounds out of the 10 grounds have nothing to do with cost. They are grounds which are fundamental to the decision of the lower Court vis a vis the real issues before the Court. The real issue before the Court is whether the Appellant can be held liable for the failure of the ATM Machine in London to dispense cash to the Respondent after the amount has been debited to her account she has with the Appellant? This is the main, real and life issue in this appeal. For this issue, it is clear that the Appellant does not need leave of Court. The issue of cost apparently is not the only issue or ground of appeal and since there are other valid grounds of appeal, the said ground 9 cannot be held to be incompetent and indeed the appeal cannot be said to be incompetent. Even if I hold otherwise that ground 9 is incompetent, of what use will that be in affecting the appeal of the Appellant. Certainly none. That in my opinion is why the Constitution of the Federal Republic of Nigeria 1999 and the Courts have made provision and held that the issue of leave becomes important, if cost is the only ground of appeal. As mentioned above, that is not the situation here. In the circumstance, the notice of preliminary objection fails and the objection is dismissed.
With that out of the way, we can now consider the merit of the appeal. I will adopt the 5 issues formulated by the Appellant for determination as in my opinion they cover the field in relation to the grounds of appeal or the germane issues in this appeal.
Issue 1, deals with the admission and reliance of the Court on Exhibit DWC in arriving at the decision. Exhibit DWC is the MasterCard Chargeback guide. This is a document that has many parts dealing with regulations as it relates to MasterCard. The document was tendered through the Appellant in the lower Court. The real relevance of Exhibit DWC in determining the liability of the Appellant was not demonstrated in the lower Court by either the Appellant or the Respondent. The document was just dumped on the lower Court without any witness speaking to the document. In the circumstance, the lower Court and indeed this Court shall not accord it any probative value.
In Okereke vs. Umahi & Ors (2016) LPELR-40035 (SC), the apex Court per Sanusi JSC at pages 65-67 held:
‘Now on the issue of dumping of these documents on the Tribunal, this Court decided in replete of numerous authorities to the effect that in any case whether election or non-election matter, any party tendering documentary evidence has the task of linking such documents to the specific aspects of his case for which such documents so tendered be leading evidence of the purport of the document in relation to the aspect of his case. In other words, he should not merely dump them in the Court or Tribunal and expect the Tribunal or Court to embark on speculation in determining the purport for which it was tendered or to which aspect of the case such document relates, without being guided by any oral evidence led in open Court.
Infact, this Court in the case of Action Congress of Nigeria (ACN) vs. Lamido & Ors (2012) LPELR 782J SC had this to say at page 38 per Fabiyi JSC:-
“It is not in doubt that the stated Exhibits were not demonstrated in the open Court. They were the type of documents which this Court affirmed as rightly expunged by the Court of Appeal in Buhari vs. INEC (2008) 19 NWLR (Pt. 1120) 246 at 414. This is so, as there is a dichotomy between admissibility of documents and the probative value to be based on relevance, probative value depends not only on relevant but also on proof. Evidence has probative value if it tends to prove an issue.”
I must say, that it is not the duty of a Court or Tribunal to act within the realm of conjuncture in determining what a document so tendered relates to, or for what purpose it was meant to serve by tendering it, or to proceed to embark on making inquiry into the case outside the Court not even by examining of such documents which are in evidence but not examined in open Court. A judge is an adjudicator and not an investigator. See Queen v. Wilcox (1961) 1 SCN LR 296; (1961) 1 All NLR 633, Dennis Ivienagbor vs. Henry Osala Bazuaye (1999) 6 SCNJ 235 at 243 Fawehinmi vs. Akinlaja (2010) LPELR 8963. The petitioner’s/appellant’s failure to lead oral evidence to link the documents with what he pleaded in the petition therefore justifies the Tribunal to refuse to act on them as it is not the Tribunal’s function to speculate on what such documents were meant to specifically establish or prove. See also Bakut & Anor vs Ishaku & Ors (2015) LPELR- 41858 (CA); Alapa & Anor vs. INEC & Anor (2015) LPELR-41775 (SC).
I will not push this any further as it is not an issue raised before this Court. This Court cannot go outside the issue conversed by the parties or brought before it by the parties. See Umeh vs. Ottah (2011) LPELR 4853 (CA); Osuji vs. Ekeocha (2009) 6-7 SC (Pt. II) 91.
What is before this Court on this issue is that the lower Court relied on Exhibit DWC in arriving at the decision when the document was neither pleaded or evidence given in Court relating to it. The law is clear, which is that, a Court cannot base his decision on a document not pleaded or evidence not given on it. Evidence given over a document not pleaded in law comes to no issue and similarly document pleaded upon which no evidence is adduced is deemed abandoned. See; Igbodim & Ors vs. Obianke & Ors (1976) 9-10 SC (reprint 108; Ilodibia vs. Nigeria Cement Company Ltd, (1997) LPELR 1494 (SC); Nkuma vs Odili NSCQR Vol. 25 (2006) 687; Gbadamosi Olorunfemi & Ors vs. Chief Rafiu Asho NSCQLR Vol. 1 (2000) 431. That there is evidence which introduced Exhibits DWC is not in doubt. This is clear looking at the evidence of the Appellant shown in pages 225-226 of the records. This evidence is backed up by the pleading of the Appellant in page 259 of the records. While it is not proper for any Court to base his decision on a document not pleaded and upon which no evidence is adduced, in the circumstance of this case and the appeal it cannot be said that Exhibit DWC was not pleaded or evidence not adduced therein. It is surprising that the Appellant is the person raising this issue that the document is not pleaded. This is clearly pleaded in paragraph 4 of its amended statement of defence in pages 133-136 of the records. I have no difficulty in the circumstance to resolve issue 1 in favour of the Respondent. I so do hold.
The Learned counsel to the Appellant submitted that there are contradictions in the case as presented by the Respondent and as such the lower Court should have discredited the evidence of the Respondent and not to have given judgment on the contradictory evidence.
This obviously was an issue raised in the address by counsel in the lower Court. The lower Court addressed that issue in page 311 of the record in his judgment. The lower Court held:
‘I cannot see any contradiction in the evidence of the Claimant that would amount to its being material capable of rendering the evidence unreliable.’
The area of contradiction the Appellant is referring to in the Respondent case in the lower Court was that the evidence of the Respondent as it relates to Exhibit CWB and CWC is contradictory to his evidence in court. These Exhibits are e-mails from a staff of the Appellant bank in response to the complaint made by the Respondents. The real contradiction it would appear as to do with the number of days it will take to sought out the complaint. This in my opinion does not amount to material contradiction. Before deciding on that it will not be out of place to state the legal position as to contradictions in the evidence of a witness. The law on this point is very clear. The contradiction that will affect the case of the party whose evidence is said to be contradictory has to be relevant to the issues at stake or better put the life issues between the parties before the Court. In legal parlance, such contradictions must be material to the case at hand to be taking seriously by the Court. In Princent & Anor vs. State (2002) 12 SC (Pt. 1) 137, Iguh, JSC held:
‘The law is firmly settled that for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to its case, such conflict or contradiction must be material, substantial and fundamental to the main issues in controversy between the parties before the Court thus creating some doubt that the accused is entitled to benefit from. See; Nasamu vs. The State (1979) 6-9 SC 153, Onubogu vs. The State (1974)1 All NLR (Pt. 2) 5; Ibe vs. The State (1992)5 NWLR (Pt. 244) 642 @ 649; Azu vs. The State (1993)6 NWLR (Pt. 299) 303 @ 316; Wankey vs. The State (1993)5 NWLR (Pt. 295) 542@552 etc. where conflict or contradictions in the evidence of the prosecution witnesses raise no doubts as to the guilt of the accused, the only duty of the trial Judge is to observe and comment on them as such and no more. Such contradictions are not fatal to the prosecution?s case. See Inyere Akpuenya vs. The State (1976)11 SC 269@276; Sunday Emiator vs. The State (1975) 9-11 SC 107 @ 112; Azu vs. The State (1993)6 NWLR (Pt. 299) 303@316 etc.’
Similarly, the apex Court per Onnoghen, JSC (as he then was) held in Ogbu & Anor vs. State (2007) 5 NWLR (Pt. 1028) 635 as follows:
‘In the case of Enahoro vs. The Queen (1965) NMLR 265 at 281-282, this Court considered the question as to what constitutes material contradictions that would warrant a reversal of a judgment of the lower Court in the following terms:-
“In the case of Omisade, we pointed out that where the ground of appeal relied upon was that of contradictions in the evidence of witnesses, it is not enough to warrant a reversal of judgment merely for the appellant to show the existence of those contradictions without showing further that the trial Judge did not avert to, and consider the effects of these contradictions. Besides, we take the view that for the appellant to succeed on the ground of contradictions in the evidence of witnesses for the prosecution, the contradictions must be shown to amount to substantial disparagement of the witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses.”
See also Galadima vs. State (2017) LPELR 43469 (SC); Ahmed vs. The State NSCQLR Vol. 8 (2001) 275.
I have examined the document and truly there could be some contradictions but I am not in any agreement with the Appellant that the contradictions are material. They certainly are not material as they do not really relate to deciding the real issue before the lower Court. The real, life and main issue before the lower Court as shown by the summary of the grievance of the Respondent was the breach of the customer/Banker relationship by the Appellant for which the Respondent is alleged to have suffered great hardship. There is no dispute that there exist a banker/Customer relationship between the Appellant and the Respondent. There is also no dispute that an ATM MasterCard was issued to the Respondent by the Appellant. It is also in evidence not disputed that the Respondent travelled to the United Kingdom and used the ATM Card in an ATM Machine of Barclays Bank in London. It is also clear that the Respondent sought to withdraw 800 pounds using her ATM card issued to her by the Appellant.
It is also admitted that the money was not dispensed to her but her account with the Appellant was debited. It is also in evidence that the 800 pounds that is the naira equivalent was returned to the Respondent after complaint on the 19/9/12. The real issue therefore is whether the Appellant will be held liable for this breach? In other words, there is definitely a breach but the question is who is liable for the breach, is it the Appellant or MasterCard international? This is the real issue. If the contradictions relates to the main issue then it is material and therefore any judgment based on the contradictory evidence can be set aside. The contradiction the Appellant is referring to in my opinion is a far cry from being material as it is only in relation to the complaint made and the response as to when the Appellant will deal with the matter. I make bold to say that the contradiction as shown in the evidence of the Respondent are not material enough juxtaposing same with the real issues before the Court. I resolve this issue in favour of the Respondent as I hold that the contradictions in the evidence of the Respondent are not material contradictions.
I will now turn to the third issue which is whether from the facts of the case, the Appellant is in breach of the contractual relationship between the Appellant as the offending party and the Respondent. In doing this, it will be necessary to know the extent of the liability of an issuing bank of an ATM Card while taking into cognizance the fact that ATM MasterCard is produced by MasterCard international with an issuing bank as its agent. This is the main consideration in issue 3. Once a customer opens an account and deposits money in the account there exist a customer/Banker relationship between the customer and the bank. This is seen as a contractual relationship in which the bank is under obligation to honour a request from the customer to withdraw money from the account once the account is funded. Where the bank fails to honour such legitimate request, the bank will be found liable for breach of contract. In Zenith Bank vs. Igbokwe (2018) LPELR -44777 (CA), this Court per Oseji, JCA held:
‘The law is also settled that a plaintiff may claim for damages where his cheque was wrongfully dishonoured.
In other words, a refusal by a banker to pay a customer’s cheque upon presentation when there is in his account an amount equivalent to that endorsed on the cheque belonging to that customer amounts to a breach of contract for which the banker is liable in damages. See; HASTON (NIG) LTD VS. ACB PLC. (2002), 11 SCM 119. Where a banker dishonours a customer’s cheque without justification, it is liable to the customer in damages for injury to his reputation. See BALOGUN VS. NATIONAL BANK OF NIGERIA LTD (2012) 1 BFLR 194 at 203; DIKE VS. AFRICAN CONTINENTAL BANK LTD (2000) 5 NWLR (PT. 657) 441; UBA VS. UNION BANK OF NIGERIA PLC (1995) 5 NWLR (PT. 405) 72. Thus, a bank is under obligation to honour a cheque issued by a customer, if such customer has enough fund in his account to satisfy the amount payable on the cheque issued. Failure or refusal by the bank to honour the cheque amount to a breach of contract and would render the bank liable in damages. See also CITIBANK (NIG) LTD VS. IKEDIASHI (2014) LPELR 22447 (CA).
In the instant case, it is not in dispute but clearly accepted by the Appellant that as at the 16/6/2010 when the Respondent issued a cheque for the sum of N130,000.00 for payment by the Appellant the Respondent had the sum of more than N1,000,000.00 in his account. Having found that the refusal to pay the amount on the cheque was wrongful and having regard to the circumstances of the case the learned trial Judge in the exercise of his discretion and guided by the applicable principle awarded the sum of N5,000,000.00 as general damages.
This is a position that has long been established by the Supreme Court in the case of Balogun vs. National Bank Nig. Ltd (1978) ANLR 63 where the apex Court per Idigbe JSC held:
‘Therefore, it has long been established that refusal by a banker to pay a customer?s cheque when he holds in hand an amount, equivalent to that endorsed on the cheque, belonging to the customer amounts to a breach of contract for which the banker is liable in damages.”
This is a very well established principle of law that does not need citing a lot of cases to buttress. The Respondent has an account with the Appellant. The account is funded. In normal circumstance, the Appellant has the duty to honour any request made by the Respondent on the
Appellant bank provided the account is funded. This request can be made by cheques, transfers or operation of ATM card which is given to the Respondent. In the case on appeal, the Respondent operates an account and on request she was given an ATM Card. It is a Debit MasterCard. The card was issued to the Respondent by the Appellant. The card bears the logo of the Appellant. The card by the usual or ordinary cause of business can be used to withdraw money from any other ATM once the account is funded. The Appellant in the Appellant?s brief submitted that the Respondent did not prove that she was told that the ATM issued to her can be used in any other bank. This argument in my opinion cannot fly for it is common knowledge that in line with corporate best practice and the revolution of the globalization of banking transactions, an ATM card can be used in any other bank for which money can be dispensed to the person once the account is funded. It is therefore of no moment for the Appellant to argue that since the ATM Machine that the Respondent used is not that of the Appellant then the Appellant is not liable.
The Respondent does not need to prove that facts as it can be inferred in line with the globalization of banking transaction. It is also implied from the ordinary course of business. In Linton Industrial Trading Company Nig Ltd vs. CBN Ltd (2013) LPELR 22036(CA), this Court held:
‘In the instant case, no written contract or agreement was presented in evidence detailing the terms of contract if any as regards the scope or extent of responsibility to be borne by either party. However, in the absence of an express agreement between the parties, an agreement regulating the relationship of Banker and customer can be implied from the ordinary course of business between them. See ANGYU VS MALAMI (1992) 9 NWLR (PT 264) 242.’
The Respondent’s money is in the custody of the Appellant and therefore the contractual relationship between them gives the Respondent the upper hand as the creditor and the Appellant as debtor. Stretching it further the Respondent is the master while the Appellant is the servant. See Fidelity Bank vs. Onwuka (2017) LPELR 42839(CA); Wema Bank vs. Osilaru, (2008) 10 NWLR 9 (Pt. 1094) 150; Ecobank vs. Anchorage Leisure Ltd & Ors, (2018) LPELR-45125 (SC); Sani Abacha Foundation for Peace & Unity vs. UBA Plc (2010) 2 FWLR (Pt. 527) 4519; Bank of the North Ltd vs. Yau, (2001) 10 NWLR (Pt. 721) 408.
In this matter in this appeal, there seem to be a third party which is the producer of the MasterCard which is MasterCard international. The banking contract here is between the Appellant and the Respondent. There is no privity of contract between the Respondent and MasterCard international. The contract for the safe custody of her money is between the Appellant and the Respondent. Anytime the Respondent needs money from her funded account and the Appellant cannot honour same, there is a breach of contract. The case in this appeal is not as simple as that. The ATM card transaction involves MasterCard international. At this stage it may be necessary to see how the ATM Card works. When the ATM card is used in another ATM Machine, the account of the customer is debited in his bank and the paying bank will dispense money to the customer as if he is their customer. In Nasaralai Enterprises Ltd vs. Arab Bank (Nig) Ltd (1986) LPELR 1942 (SC), the Supreme Court held:
The relationship, duties and obligations of an issuing bank and a paying bank are set out by the learned authors of the 3rd Edition of Halsbury’s Laws of England at paragraph 138 as follows:-
“The contract between the issuing or opening banker and the paying or negotiating (intermediary) banker partakes of a dual nature. The relationship is partly that of principal and partly of principal and agent mandatory and mandatory. It depends too, in some measure, on the nature of the credit, whether it be revocable or irrevocable. In order that he may claim to be reimbursed for any payment he makes under the credit, the banker paying must obey strictly the instructions he receives for by acting on them he accepts them and thus enters into contractual relations with the opening or issuing banker.’
Is MasterCard involved in this transaction? It would appear so as paragraph 13 of the Statement of Claim seem to suggest. This was not challenged by the Respondent. I will reproduce same.
13. The ATM where the Claimant made the transaction complained of was at Broadway, Stratford and does not belong to the Defendant’s and the Defendant debited the Claimant account and the electronic notification given to it by Master Card international as is practiced in the industry. The Card dispute Form submitted by the Claimant was used by the Defendant to lodge a complaint and commence arbitration proceedings with Master Card dispute resolution on behalf of the Claimant in order to ascertain the claim and get back the money from the acquiring Bank that owned the ATM Machine where the ATM transaction took place. This resolution processes was in line with the guideline provided by Master Card International in its Charge back guide.
The implication of this unchallenged averment and evidence is that the Appellant which issued the ATM does so as an agent of MasterCard and once there is any dispute concerning the usage of the Card, it is sent to MasterCard to resolve. It would appear therefore in ATM transaction the Bank is merely like a clearing house between the banks that has the ATM Machine that is used and MasterCard. Once the ATM card is used, the instruction to debit the customer’s account automatically goes to the bank in which the account is domiciled. This instruction comes from MasterCard which produced the card.
In the same automated system, MasterCard sends the instruction to the bank on which the card is used to dispense cash to the customer. What seem to be clear is that, the Appellant is a bank which domiciles the account of the Respondent but on transactions activated by ATM, the liability is not solely his as it involves MasterCard and the bank whose ATM machine is used. It would appear that in the circumstance, on ATM transaction, the Appellant is an agent of MasterCard. The question now is, where does liability lie in this case? Is it the Appellant which is more of a clearing house or an agent of the Master Card which has not deliberately breached the contract by refusing to pay the Respondent the money requested for? Or, is it Master Card which has the cyber space in issuing automated instruction to both the domiciled bank and the paying back? Or thirdly, is it the paying bank which has no knowledge about the transaction apart from receiving automated instruction delivered to it by MasterCard to pay? It would appear to me if I am right on how the ATM transactions work, the main culprit is MasterCard which control the cyber space as it relates to the transaction between the customer, the domiciled bank and the paying bank.
This is my understanding of how the ATM works. There is however a situation in this case that takes it out of the ordinary. There are general principles but every case is to be handled within the particularity of the facts of the case. See Akinlolu vs. State (2013) LPELR 21876. The theory of the matter and the practicality of the facts are two different things. The Court exists to do justice. This is the main duty of the Court and in this instance; it is substantial justice and not technical justice. See; Akinlolu vs. State (2013) LPELR (CA); CBN vs. Interstella Communication Ltd & Ors (2017) LPELR 43940; Saleh vs. Monguno & Ors (2006)7 SC (Pt. ii) 97. The main duty of any Court is to do justice in its real and true sense and not according to technicality or sentiment. See; Umanah vs. NDIC (2016) LPELR 42556 (SC); PML (Nig.) vs. FRN (2017) LPELR 43480 (SC); Osareren vs. FRN (2018) LPELR 43839 (SC). In Green vs. Green (2001) FWLR (Pt. 76) 795, the Supreme Court held:
‘The sole aim of the Court is to seek justice. True, it must be justice according to law, but when parties are available, who are so affected by a claim, pleadings evidence, and a subsequent order would spell detriment, or indeed, incalculable wrong, to what they consider their right, and they have either, technically or inadvertently, been excluded from stating their own side to the story, it is, with respect, waving goodbye to justice!?
I have stated what appears to be the general legal position as to ATM Cards operation. I will however ask, how will following that general position promote justice in the circumstance of the facts before the lower Court and indeed this appeal. I will not have to reproduce the facts here again but what is clear is that the Respondent with the ATM Card of the Appellant sought to withdraw 800 pounds in London in Barclays Bank ATM Machine. The amount was debited the Respondent’s account with the Appellant but the money was not dispensed to her. Based on which the Respondent had to suffer some inconvenience in London. Generally, the Card owners and producer ought to be liable which appears to be MasterCard. The problem here however is that there is no privity of contract between the Respondent and MasterCard.
Indeed, there is no tripartite Agreement between the Respondent, the Appellant and MasterCard. For the purpose of the banking transaction, the agreement or contract is between the Appellant and the Respondent and therefore if there be any breach as it relates to the account, it is the Appellant that the Respondent will hold responsible as there is no contract between her and MasterCard. The law on privity of contract is clear and cannot be disputed. In The Vessel Leona II vs. First Fuels Ltd (2002) 12 SC (pt 1) 55, the apex Court per Ayoola, JSC held:
‘Ordinarily, where a document is a contractual document the competence of a party to seek its rectification must be determined within the privity rule and not on the basis of a benefit that a stranger may derive from the contract. The law is clear that as a general rule a contract cannot confer rights or impose obligations on any person except the parties to it or, as an exception to the general rule, a person on whom such parties confer a benefit who is to be distinguished from a person who may benefit from the contract. That a person may benefit from the performance of a contract does not alone give him a right to enforce the contract.”
Similarly, in Basinco Motors Ltd vs. Woermann-Line & Anor (2009) 13 NWLR (Pt. 1157) 149, Adekeye, JSC held:
‘From the forgoing, it becomes really necessary to explain what is privity of contract. Portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In short only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his?.him liable upon it. Moreover the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract. Negbenebor vs. Negbenebor (1971)1 ALL NLR 210; Ikpeazu vs. A.C.B. Ltd. (1965) NMLR 374; K.S.O. Allied Products, Ltd vs. Kofa Trading Co. Ltd. (1996)3 NWLR (Pt. 436) pg. 244; Alfotrin Ltd vs. A.G. Fed (1996)8 NWLR (Pt. 475) pg. 634. The foregoing doctrine admits of exceptions which are not applicable to the position of a Notify Party in a bill of lading on any relationship based on a bill of lading. It is however now settled by a plethora of cases that by virtue of Section 375(1) of the Merchant Shipping Act, 1990 only a consignee of the goods named in a bill of lading or an endorse whom the property in the goods have passed and by virtue of those facts will be able to sue on a bill of lading contract.”
There is no contract between the Respondent and MasterCard, therefore the Respondent as no cause of action against MasterCard. It is also worthy of note that there is no evidence before the lower Court by the Appellant that it informed the Respondent that the contract on the MasterCard issued to her is different from the normal banking contract it entered with her. Indeed, there is no separate contract entered in relation to the ATM Card with either the Appellant or MasterCard. There is no document presented before the lower Court to show that any breach in the transaction involving the ATM card will be resolved by suing MasterCard. Of particular note is that taking a look at Exhibit CWF, (which is the ATM Card) the Appellant cannot deny any liability on any breach arising from the use of the ATM card. On the face of Exhibit CWF, the logo of the Appellant and Master Card is on the face of it. This implies and even as admitted by the Appellant that the card was issued by the Appellant. There is no evidence to show that the Respondent was informed that the Card was issued to her on behalf of MasterCard. There is no such disclosure as at when the card was issued to the Respondent. This means that as at the time of contract, the exemption clause that the Appellant are trying to introduce was not brought to the attention or notice of the Respondent.
In such a situation, that exemption will be properly termed an afterthought and not applicable in the instance. In Eagle Super pack (Nig.) Ltd vs. A.C.B. Plc (2006) 19 NWLR (Pt. 1013) 20, the apex Court per Tabai, JSC held:
“An exemption clause in a contract may not avail a party who has been guilty of a fundamental breach of the contract. See; Chitty on Contract 23rd Edition para. 732 pg.329.”
It is too late now for the Appellant to invoke whatever it terms as an exemption clause since this was not brought to the notice of the Respondent as at when the contract was entered. See; Akinsanya vs. UBA Ltd (1986)4 NWLR (Pt. 35) 273: Narumal & Sons (Nig.) Ltd vs. Nigeria Benue Trans. Co. Ltd (1989) 4 SC (Pt. 2) 116.
Apart from the logo of MasterCard on the face of Exhibit CWF, there is nothing more to show that MasterCard has ownership of the Card issued to the Respondent. Looking at the back of any ATM Card and indeed Exhibit CWF the Appellant seems to take responsibility for the card. It is written thus:
‘This card is issued by and remains the property of Guaranty Trust Bank plc. If found please return to any Guaranty Trust Bank branch or E-Business & Card Services, Plot 1400, Tiamiyu Savage street, Victoria Island.’
The Card is subject to the terms and condition but there is no evidence that those terms and conditions were shown or given to the Respondent. All in all, the party that the Respondent knows in relation to the transaction is the Appellant. There is a breach of contract and in the circumstance of the case and the facts before the lower Court; I have no reason to interfere with the finding of fact by the lower Court in page 322 of the records. I resolve this issue in favour of the Respondent.
The lower Court awarded damages of N3, 000,000 for the breach of contract. The Appellant’s counsel submitted that the Respondent did not prove that she is entitled to the damages and that even if this Courts holds she is entitled to damages, N3,000,000 is in excess. The point which is clear and cannot be disputed is that a Court has powers to award damages for wrongs done and it is also true that an appellate Court can vary the award or amend same. See; Chukwuanu vs. Uchendu & Ors (2016) LPELR 41022 (CA); Newbreed Organisation Ltd vs. Erhomosele (2006) 2 SC (Pt. 1) 136; Onwuka & Anor vs. Omogui (1992) 3 NWLR (Pt. 230) 393. In Ahmed & Ors vs. CBN (2012) 7 SC (Pt. II) 1, the Supreme Court held:
‘I have to emphasize that the decisions of this Court supported that the award of damages is purely within the precinct of the trial Court. The power to award damages by the trial Court is exercised in the circumstance of a judicious estimation of the loss to the victim once a breach of contract has been established.’
A party in an action whom a Court has established has been wronged is entitled to damages which the Court will assess as flowing from the wrong he has suffered. There are two broad aspects of damages, special and general damages. Special damages must be specifically pleaded and proved. General damages on the other hand do not need to be specifically pleaded and proved. General damages serves as compensation for the wrong suffered, it flows as natural consequence of the wrong suffered. See; NBC Plc vs. Ubani (2014)4 NWLR (Pt. 1379) 421; G.K.F. Investment (Nig.) Ltd vs. NITEL Plc (2009)3 NWLR (Pt. 488) 7107. In Odelola vs. Odelola & Ors (2016) LPELR-42222 (CA) this Court per Tukur, JCA at pages 18-20 held:
‘The law is trite that once there is a breach of contract, damages that would be awarded are the pecuniary loss that may fairly and reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach. Therefore, the measure of damages to be awarded here is the loss flowing naturally from the breach and incurred in direct consequence of the violation. See: KUSFA vs. UNITED BAWO CONST. CO (1994) 4 NWLR (Pt. 336) 1; B. A. WAHABI vs. WILFRED OMONUWA (1976) LPELR-3469 (SC). This is a case of breach of a concluded and valid contract of sale of land as resolved under issue one. And it has been affirmed by the Apex Court that the terms general and special damages are normally inept categorization of damages for the purpose of awards in case of breach of contract. See: B. A. WAHABI v. WILFRED OMONUWA (supra). I cannot help but reproduce the holding of the Supreme Court as relied upon by learned counsel for the 3rd Respondent on the point per Coker, JSC in SHELL B.P v. JAMMAL ENGINEERING LTD (1974) 1 ALL NLR 489 SC AT 522. Thus:-
“Now we think the proper rule in such case as the present is this:- ‘where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fair and reasonably be considered either arising naturally. i.e. according to the usual course of things from such breach of contract itself, or such as may be reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract as the probable result of the breach of it.’
The formula does not leave any room for any further clarification of damages into general or special for whatever species of damage it be, to be sustainable such damage must flow naturally from the breach of the contract in the sense that it was contingent or dependent upon a matter of factor expressly or impliedly within the contemplation of the parties to the contract at the time of institution.”
I reproduce the above reasoning of the Apex Court in demonstration of the principle that in breach of contract, damages naturally flow and its assessment is based on reasonable contemplation of both parties. Therefore, whether or not the 3rd Respondent specifically categorized the relief as special or general damages is immaterial. Title has been established but the 1st Respondent has failed to deliver possession in accordance with the agreement. This is a breach that naturally should attract damages.”
The Supreme Court in Kusfa vs. United Bawo Construction co Ltd (1994) LPELR 1721 (SC) per Ogundare, JSC at page 25-26 held:
‘The law is that in cases of breach of contract, the damages that would be awarded are the pecuniary loss that may fairly and reasonably be considered as either arising naturally from the breach itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach. The law however, goes on to lay down that in an action for breach of contract a plaintiff who is well compensated under one head of damages for a particular claim cannot also be compensated in respect of the same claim under another head of damages as this will amount to double compensation. See; Nigeria Railway Corporation vs. Odemuyiwa (1974)1 ANLR 388 (Reprint); Onaga & Ors. vs. Micho & Co. (supra) where the award of general damages by the trial Court was set aside by this Court on the ground that by the award of special damages the loss sustained by the plaintiff was adequately taken care of. The law frowns against double compensation whether in contract or tort. See; for example: Ekpe vs. Fagbemi (1978)3 SC 209. The case of Warner & Warner International vs. Federal Housing Authority (supra) was cited to us by learned counsel for the plaintiff. I cannot see anything in that case which supports the contention of the plaintiff in the appeal before us. On the contrary, the case affirms the rule laid down in HUDSON?S Building and Engineering Contracts earlier set out by me in this judgment.’
The Respondent in the lower Court has proved that she suffered some pain as a result of the breach. This fact is in evidence which the Appellant could not challenge. The Respondent did not state beyond the fact that she had to beg from people. She therefore suffered some inconvenience and possible emotional pain. This is shown in paragraphs 16 & 17 of the Statement of Claim of the Respondent found in pages 3-5 of the records. I reproduce the paragraph for ease of reference;
(i) On the 18th day of September, 2012, the Claimant was delivered of a baby at the Homerton University Hospital, London and the Claimant had to resort to begging for financial assistance from friends and foes alike in a foreign land while her money was locked up under the custody control and management of the Defendant.
(ii) The Claimant avers that she suffered great pains, emotional inconvenience, loss of legitimate expectation and psychological trauma and anguish as a result of the breach of contract of the Defendant.
For this, she is entitled to damages. I however think N3,000,000 is excessive. I will assess the damage at N1,500,000. By law, this Court as an appellate Court can amend or vary the damage if it feels it is in excess. While resolving issue 4 in favour of the Respondent, I assess the damage at N1,500,000.
The fifth and final issue raised by the Appellant in the brief is denial of fair hearing. The concept of fair hearing is key to any judicial process. When there is a denial of fair hearing, all the process becomes a nullity and complete waste of precious judicial time and resources. Realizing the importance of the concept of fair hearing, a counsel who is a minister in the temple of justice should not use it as a casual play game when he sees that a case is not going in his favour. Once it is raised a Court should look at it closely.
A party will be said to have been denied fair hearing when he is not given opportunity to present its case or the case is not conducted in line with due process. See INEC vs. Musa (2002) 17 NWLR (Pt. 796)412; Ntukidem & Ors vs. Oko & Ors (1986) 5 NWLR (Pt. 45) 909: Daniel vs. FRN (2014) 8 NWLR (Pt. 1410) 570.
The aspect of fair hearing challenged here is that the lower Court did not pronounce on material issues raised by the Appellant. The Appellant?s problem here is that the lower Court did not pronounce on the validity and functionality of the ATM Card. With respect to counsel that is not a fundamental issue as it relates to resolving the issue whether the Appellant is liable for breach of contract. The decision of the lower Court and indeed this Court will not change even if a clear finding is made on the validity and the functionality of the ATM Card. The real issue was whether there was a breach of contract for the debit of his account based on her use of ATM card issued to her by the Appellant when the money requested for was not dispensed to her. This is the life issue which in my opinion does not have much to do with whether the card is valid or functional. This in my opinion is not therefore an issue of denial of fair hearing. In this respect, I find the case of Wilson & Anor vs. Oshin & Ors (2000) 9 NWLR (Pt. 673) 442 useful. In that case, the apex Court per Karibi-Whyte held:
‘In the first place not considering one of the many contentions of a party in a case cannot by itself constitute a denial of fair hearing. A denial of fair hearing connotes a refusal to consider the pertinent and relevant issues in the case essential to its determination. In such a situation a fair minded objective observer will come to the conclusion that the hearing of the case has not been fair to the person affected.’
“The principle of adjudication fundamental to the administration of justice is that the Court is bound to consider every material aspect of a party’s case validly put before it. Hence where the issue placed before the judge is one not relevant or crucial to the determination of the case before the Court, non-reference to it is not a denial of fair hearing. This is because having heard the appellant present his case, the consideration of the relevance vel none of the point will be determined by the judgment deciding the case on the issues and facts before him.”
I also resolve this issue in favour of the Respondent.
All the issues in this appeal has been resolved in favour of the Respondent except for the reduction of the damage awarded from N3,000,000.00 (Three Million Naira).
Before I give the final order, I will now address the issue of post judgment interest. The Respondent in line with Order 9 (1) of the Rules of this Court filed Respondent?s notice on 7/3/16. In the notice, it is seeking for 10% to be paid on the judgment sum until liquidated. The notice of 7/3/16 filed by the Respondent complied with the provision of our rules. It is to be noted that the Respondent in the lower Court did not claim interest on the judgment. Though interest can be claimed as of right or based on statutory provision, the lower Court will only feel safe to make such order when there is a claim for same as the law is that a court cannot grant a relief not sought. However, the law is also settled that if the interest is granted based on statutory provision, there will be no requirement for it to be pleaded or requested for as this will meet the tenet of justice. See Ekwunife vs. Wayne West Africa Ltd (1989) 12 SC 92. The Supreme Court in NPA vs. Aminu Ibrahim & Co & Anor (2018) LPELR-44464 (SC) per Peter-Odili at page 66-68 held:
‘On the matter of pre-judgment interest, the law is clear that such interest is awarded where there is an agreement for payment of interest, in which case a claim as such must be pleaded and proved as it would not do to just state a claim for pre-proof of same. However a Court can grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party even where such a party did not plead or adduce evidence to prove it as such interests naturally accrue from the failure to pay the sum involved over a period of time thereby depriving a party from the use and enjoyment of the sum involved. That in my humble view is substantial justice. A trial Court can award judgment interest. The authority to award judgment interest is enshrined in the Rules of Court…’
The Lagos State High Court Rule in Order 35 Rule 4 has made provision for that. In the circumstance, this Court has the power to grant the interest sought. Based on the Respondent?s notice which I grant, I place the post judgment interest at 10% per annum from the date of the judgment being 3/2/16.
This appeal lacks merit and it is dismissed. The decision of the lower Court delivered on 3/2/16 by Hon. Justice Bola Okikiolu-Ighile of the Lagos State High Court is hereby affirmed but the damage is assessed at N1,500,000.
I award N200,000.00 (Two Hundred Thousand Naira) as cost against the Appellant.
TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother EBIOWEI TOBI, JCA granted me the privilege of reading in draft the lead Judgment prepared and rendered in this appeal.
I am in agreement with the reasoning and conclusion and therefore adopt the Judgment as my own. I have nothing extra to add.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Ebiowei Tobi, JCA, made available to me the draft of the leading judgment which has just been delivered.
Having also read the Records of Appeal and briefs of argument filed and exchanged by the parties, I avow my concurrence with the manner in which the issues for determination were resolved in the leading judgment. Accordingly, I join in dismissing the appeal and abide by the consequential order as to costs.
Appearances:
B. O. ONI Esq.For Appellant(s)
PETER O. AGBOOLA Esq. with him, ROTIMI ADENIYI Esq. and BUSAYO ADEBOLA Esq.For Respondent(s)
