MRS. FELICIA DUROWAIYE v. UNION BANK OF NIGERIA PLC
(2014)LCN/7648(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of December, 2014
CA/IL/61/2014
RATIO
APPEAL: PRELIMINARY OBJECTION; WHETHER A PRELIMINARY OBJECTION SHOULD BE TAKEN FIRST BEFORE GOING INTO THE MAIN APPEAL WHERE IT HAS BEEN RAISED IN AN APPEAL
It is trite that where a preliminary objection has been raised in an appeal, it should be taken first before going into the main appeal if need be. It is for this reason that a preliminary objection be argued first before the main appeal even where it has been argued in the brief, as in the present case, this is in line with the rule in NSIRIM VS. NSIRIM (1990) 3 NWLR (PR.138) 285 AT 297. See, also ULEGEDE VS. THE MIL. ADMIN. BENUE STATE (2001) 2 NWLR (PT. 696) 73 AT 83. ONYEKWULUJE VS. ANIMASHAUN AND ANOR (1996) 3 NWLR (PT.439) 437 (1996) 2 S.C.NJ 24 AND IKEYERNUM VS. TORKUMBOR (2002) 11 NWLR (PT.777) 52 AT 68. per. CHIDI NWAOMA UWA, J.C.A.
MEANING OF TERMS: MISREPRESENTATION AND NEGLIGENCE; THE DEFINITION OF MISREPRESENTATION
Misrepresentation in Black’s law Dictionary, 7th Edition has been defined as follows:
“The act of making a false or misleading statement about something, with the intent to deceive. The statement so made; an assertion that does not accord with the fact.”
While negligence has been defined in the same dictionary as follows:
“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm except for conduct that is intentionally, wantonly or willfully disregardful of others’ rights. The term denotes culpable carelessness.” per. CHIDI NWAOMA UWA, J.C.A.
COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND THE FINDING OF FACTS
It is the law that evaluation of evidence and findings of facts are within the province of the trial court and the appellate court would only interfere if such evaluation and findings are perverse and shows a misapplication of the facts or that the findings cannot be supported by evidence. per. CHIDI NWAOMA UWA, J.C.A.
Before Their Lordships
MOHAMMED LADAN TSAMIYAJustice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWAJustice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALIJustice of The Court of Appeal of Nigeria
Between
MRS. FELICIA DUROWAIYEAppellant(s)
AND
UNION BANK OF NIGERIA PLCRespondent(s)
CHIDI NWAOMA UWA, J.C.A.(Delivering the Leading Judgment): This appeal is against the decision of the Kwara State High Court presided over by S. D. Kawu, J delivered on 17th September,2013. The learned trial judge gave judgment to the claimant (now appellant) only in the sum of N31,392.90k on her old account number 15:435 with interest to be paid at the then prevailing rate calculated from 2nd May, 1994 till 15th November, 1994 and N2,547.76k in the new account number 3182000061745. All other claims under different heads were dismissed.
The Appellant had instituted this action in the Lower Court against the Respondent as follows:
i. “A DECLARATION that the defendant is breaching her duty to the claimant by her misrepresentation to the claimant to pay money for re-activation of her old account in the bank without the Defendant intention (sic) to really effect such re-activation for the claimant benefit,
ii. AN ORDER to pay the claimant the sum of N31,392.90 that has been the balance from 1994 to date with all the interest applicable.
iii. A sum o f N5m as special damages.
iv. A sum of N2m as general damages for the untold emotional distress and travails caused to the claimant on account of the negligent treatment and misrepresentation by the defendant to the claimant since the year 2007 when he had first approached the defendant branch for possible collection of the balance on her old account.”
At the trial, the Appellant testified in support of her claim and tendered eleven (11) exhibits while the Respondent called one witness and tendered one (1) exhibit, in defence of the claim.
At the close of the trial, the Appellant was dissatisfied with the judgment and appealed to this court. The Appellant formulated two (2) issues for the determination of this appeal as follows:
1. “Whether the Honourable trial court was not wrong in holding that the defendant has not breached her duty to the claimant by misrepresentation or negligent to entitle the claimant to special and general damages – grounds 1, 2, 3, 4 and 5.
2. Whether the Honourable trial court was not wrong in holding that the claim for the award of Special damages by the claimant in the sum of N5m has not been particularized in the statement of claim and strictly proved by evidence as required by law. – ground 6.”
The Respondent on her part, raised a preliminary objection challenging the competence of the particulars in support of Grounds 1, 2, 3 and 4, as well as the competence of grounds 5 and 6. The Appellant’s issue one was also challenged in urging us to dismiss the appeal. In the alternative, the Respondent in respect of the substantive appeal formulated two (2) issues for determination of the appeal. They are:
(a) “Whether the conclusion of the trial court that the Respondent did not breach her duty to the Appellant as to make the Respondent liable to the Appellant in misrepresentation and negligence was not justifiable having regard to the evidence led on the pleading of the Appellant before the trial court. (This issue is in respect of grounds 1, 2, 3, and 4 of the Appellant’s grounds of Appeal).
(b) Whether the Appellant was entitled to special and or general damages against the Respondent or whether there was any basis in law for the trial court to have awarded any special and or general damages against the Respondent having regard to the evidence presented to the Lower Court and the conclusion of the Lower Court. (This issue is in respect of grounds 5 and 6 of Appellant’s ground of Appeal).”
When the appeal was heard, the learned counsel to the Respondent Abdulwahad Bamidele Esq. withdrew grounds (iii) and (iv) of the grounds of his objection, which were struck out with the argument in their support, leaving the following:
i. “Grounds 1, 2, 3 and 4 of grounds of appeal are supported with particulars of errors that are inexplicably irrelevant, inconsistent and extraneous.
ii. The complaints of the Appellant in grounds 5 and 6 are not particularized as to constitute valid or competent grounds of appeal.”
These are contained in the Notice of Preliminary objection dated and filed on 17th November, 2014 on behalf of the Respondent. The objection was argued in the brief of argument filed on 30/10/14 by the respondent, on pages 5 – 6 of the brief which was adopted and relied upon by Mr. Bamidele.
The particulars of error of the appellant’s grounds of appeal in respect of grounds 1-4 were argued to be lacking in substance, irrelevant, inconsistent and having no relationship with these grounds. It was submitted that where the particulars of error in support of a ground of appeal are not related with the ground, the ground is incompetent, see, HAMBE vs. HUEZE (2001) 2 S.C. 26; F.H.A. VS. KALEJAIYE (2010) 12 S.C. (PART 111) 1 AT 21 and ADEROUNMU VS. OLOWU (2001) 2 SCNJ 180. It was submitted that issues formulated from these grounds are incompetent. Similarly, the particulars of error in respect of grounds 5 and 6 were faulted as irrelevant and said to be incompetent. We were urged to dismiss the appeal.
Mr. Segun Durowaiye responded to the Respondent’s preliminary objection in his reply brief filed on 11th November, 2014 at pages 2 – 5. It was the submission of the learned counsel that grounds 1 – 4 are supported by particulars that explain the details of each ground without going outside the decision of the Lower Court. Further, that even where there are no particulars in support of these grounds, the grounds are incompetent as long as they leave no room for doubt as to what the dispute is all about with explanations embedded in them. It was submitted that the particulars in the grounds of appeal in this case are superfluous. We were urged to dismiss the preliminary objection.
With the main appeal, in arguing same, the learned counsel to the Appellant, Mr. Durowaiye adopted and relied on his brief of argument filed on 9/5114 and his reply brief filed on filed 11/11/14 as his argument in the appeal in urging us to allow same.
In arguing his first issue, the learned counsel defined and distinguished general and special damages and identified the fact that in this action the appellant had claimed special and general damages in which both must be pleaded and the particulars given, evidence would also be needed to be led in proof of same before a claimant would succeeds, see AKINKUGBE VS. EWULUM (2008) 34.2, NSCQR 783 AT 797 and INCUR VS. BENSON (1975) 3 S.C.117.
Further, that general damages are losses which flow naturally from the defendant’s act, it need not be specifically pleaded, it arises by inference of law and need not be proved by evidence, it is enough if it is averred in the pleadings. It was submitted that the sum of N2m general damages claimed by the Appellant in the court below is as a result of the action of the Respondent since, the year 2007, for which to particularize did not arise in law.
In respect of the special damages, it was argued that the Appellant specified same in her pleadings before the Lower Court, having specified and stated the inconveniences she suffered, with the particulars, for instance that from 17/4/07 she was constantly going to the Respondent to demand for her money in the old account after which she was told to be paying in N100 for a while before she could be paid her money, paragraph 12 of the Appellant’s statement of claim, page 4 of the printed records, also paragraph 16, page 5 of the records.
Other facts said to have been pleaded include other visits to the bank from 25/2/11 to the date the Appellant stopped paying in, the sum of N100 but, wanted only to have her money returned to her, see, paragraph 14 of the statement of claim page 5, also paragraph 7 at page 41 of the records. It was the contention of the learned counsel that the Appellant clearly particularized in her pleadings what she testified to, at the trial. We were urged to hold as wrong the decision of the learned trial judge concerning this issue.
In arguing his second issue, it was submitted that the Appellant had done what she was supposed to do in her claim for special damages. Reference was made to paragraph 19 of her statement of claim, page 6 of the Records where she was said to have particularized her claim and proved same by evidence, page 11 of the records. See, A.S.E.S.A. vs. EKWENEM (2009) ALL FWLR PARAGRAPH E – C. Damages in the sum of N5m was said to have been proved. We were urged to resolve this issue in favour of the Appellant.
On the part of the Respondent, in the alternative, should the Respondent’s preliminary objection fail, argument was proffered in respect of the Respondent’s issues raised for determination.
In arguing his two issues the learned counsel to the Respondent Mr. Bamidele adopted and relied on his brief of argument filed on 30/10/14. It was the contention of the learned counsel that it is the duty of the Appellant who complained that the duty owed her by the Respondent was breached, to show what duty the Respondent owed the Appellant and how the duty was breached as to show and or justify the alleged error in the conclusion and or findings of the Lower Court, see, UTB NIG. vs. OZOEMENA (2007) 1 S.C. (PART 11) 211. It was argued that the appellant failed to prove any breach by the Respondent. Reference was made to paragraph 20 (i) of the statement of claim where the alleged breach was pleaded, page 6 of the records. It was submitted that no evidence was presented by the Appellant to substantiate the crucial fact that the Respondent misrepresented to the Appellant to pay money for the reactivation of her old account, further the name of the Respondent’s staff who promised to help the Appellant write a letter for the reactivation of her account was not disclosed, a copy of the letter allegedly written by the appellant to the Respondent for the same purpose was not produced or tendered before the trial court amongst other lapses alleged. It was argued that the appellant did not tender any document or present any evidence on her request or application for the reactivation of the old Account No. 15:435, which the Appellant alleged the respondent failed to reactivate which would have resulted in the Lower Court granting the appellant’s claim for declaration that the Respondent breached her duty to the Appellant by misrepresentation. Further, that there was nothing to show that the operation of the Appellant’s Account No.3182000061745 was for the reactivation of the old Account No.15:435. The appellant, it was emphasized did not prove any misrepresentation by the Respondent. We were urged not to interfere with the decision of the Lower Court as same is unassailable.
On the Respondent’s second issue, whether the Appellant was entitled to special and or general damages against the Respondent. It was submitted by the learned counsel that the appellant is not entitled to special and or general damages. It was submitted that there is no evidence to support a claim for damages and that her claim was rightly dismissed, see, W.A.E.C VS. KONOYE (1977) 2 S.C. 45; DUMEZ (NIG.) LTD VS. OGBOLI (1972) 3 S.C. 196 and INTERNATIONAL MESSENGERS NIG. LTD. VS. NWACHUKWU (2004) 6 -7 S.C.55.
It was argued that the Lower Court having found that the Respondent did not breach any duty to the Appellant, there would be no basis for the award of general damages of N2 million claimed by the Appellant, see, page 145 of the records, also, OZOEMENA’S case.
It was also contended that the issue of the amount of 91,392.90 in the Appellant’s old account No. 15:435 would arise when a formal or written request is made. In respect of 1st the special damages of N5 million claimed by the appellant, the particulars of the special damages would have to be given and proved, which was said not to have been done by the appellant. The general damages was said to have arisen from the several trips to the Respondent bank from 20/8/07 to 25/2/2011 and 25/2/11 till the action was filed. It was concluded that the appellant did not prove her entitlement to general and special damages.
In the Appellant’s reply to the substantive appeal, the Respondent’s issues one and two were responded to, together, to the effect that a Bank owes a duty of care to its customer, thus their relationship is that of debtor and creditor, also that of principal and agent, the Bank being the agent of the customer, see, S.T.B. LTD VS. ANUMNU (2008) ALL F.W.L.R. (PT.399) 408 AT 428. We were urged to allow the appeal.
It is trite that where a preliminary objection has been raised in an appeal, it should be taken first before going into the main appeal if need be. It is for this reason that a preliminary objection be argued first before the main appeal even where it has been argued in the brief, as in the present case, this is in line with the rule in NSIRIM VS. NSIRIM (1990) 3 NWLR (PR.138) 285 AT 297. See, also ULEGEDE VS. THE MIL. ADMIN. BENUE STATE (2001) 2 NWLR (PT. 696) 73 AT 83. ONYEKWULUJE VS. ANIMASHAUN AND ANOR (1996) 3 NWLR (PT.439) 437 (1996) 2 S.C.NJ 24 AND IKEYERNUM VS. TORKUMBOR (2002) 11 NWLR (PT.777) 52 AT 68.
The present objection has contended that the particulars of error in support of all the grounds of appeal (1 – 6) are incompetent as they are not related to the main grounds of appeal, thus making all the grounds incompetent. We were urged to dismiss the appeal as the grounds are incompetent; In other words the purpose is that the appeal is incompetent or fundamentally defective, if successful would put an end to the entire appeal, see, N. E. P. A. VS. ANGO (2001) 17 WRN 142 AT 154; (2001) 15 NWLR (PT. 737) 627 AT 645 – 646.
In the present case the respondent has argued that the particulars in grounds 1 6 of the Notice of appeal are not related to the grounds which has rendered all the grounds, of appeal incompetent.
The essence of particulars in grounds of appeal is to explain or expatiate on the grounds. I have examined the particulars of the grounds of appeal and in my humble view, they are not unrelated to the grounds of appeal as submitted by the learned counsel to the respondent. The particulars qualify to serve the purpose for which they are there, to explain further the contents of the grounds, they form part and parcel of the grounds of appeal. Even where there are no particulars to a ground, it does not render the ground incompetent. The important thing is that the other party knows the essence of the ground and what is in contest in the appeal. Sometimes, what would have formed part of the particulars are embedded in the ground. What is important is that there is no doubt as to the real dispute in the appeal, see, U.B.A. LTD AND ANOR VS ACHORU (1990) 10 S.C.N.J 17, (1990) 6 NWLR (PT.125) 254; SHYLLON VS. JUDITH ASUN (1994) 6 SCNJ (PT.11) 287 AT 295 (1994) 6 NWLB (PT.353) 670 and AMUN VS. AMAO (2013) 9 NWLR (PT.1358) 163 AT 170 – 171, PARAGRAPHS H – A. In other words, even where there are no particulars to the ground of appeal, it does not render the grounds incompetent. The resultant effect is that the objection is without merit and is hereby dismissed.
The learned counsel to the respondent had responded to the merits of the appeal in the alternative should the objection be overruled this brings us to the merits of the appeal.
I have examined the issues formulated by the parties; they are similar but, differently worded. I would recouch same as follows:
1. Whether the trial court was right in holding that the respondent did not breach her duty to the appellant by misrepresentation or negligence as to entitle the appellant to special damages.
2. Whether the appellant was entitled to the award of special and general damages against the respondent.
It is the law that the Appellant who alleged that the Respondent breached her duty to the Appellant has to show or prove how the duty was breached which would justify the alleged error in the conclusion and or findings of the Lower Court.
At this stage, it would be apt to examine the Appellant’s pleading in the Lower Court in this respect and the evidence led in its support. In the Appellant’s statement of claim, the relief in 20 (i), page 6 of the records reads as follows:
“A DECLARATION that the Defendant is breaching her duty to the claimant by her misrepresentation to the claimant to pay money for re-activation of her old account in the bank without the Defendant (sic) intention to really effect claimant’s benefit.”
The essence of the above relief is that the Respondent misrepresented facts to the Appellant which made her to pay some money in for the purpose of the reactivation of her old account without the real intention to re-activate same for the benefit of the appellant. We will examine the evidence before the court, at page 9 of the printed records of court, in paragraphs 3, 5, 10 the Appellant in her statement on oath/written evidence averred as follows:
“3. That I was a customer at Unilorin Mini Campus Branch where I was operating savings Account with Account No. 15:435 an old account with the balance of N31,392.90 as at 15/11/94. Copies of those pass-books are in my possession and I am going to tender it at trial.
5. Fortunately for me I was able to stumble on the pass-books sometimes in the year 2007 in an unsuspected place in my house.
6. When I was able to find the pass-books decided to approach the Unilorin Mini campus Branch where I was operating the account to know whether I can still be paid the balance of N31,392.90 of 1994 especially with my knowledge that the amount is equivalent to the current value of N1m.
7. As I reached the Branch office at Saw-mill Area I approached staff of (sic) the Bank to know whether it was possible to still be paid the money which has been the balance in my account as at 1994.
8. That the staff that attended to me did not tell me that it was not possible to be paid the money but rather told me to pay the sum of N3,000.00k on a new account to reactivate the old account.
9. That the staff assured me that if I should do as he told me in paragraph B above the balance would be paid to me as stated in paragraph 6 with interest.
10. With this assurance, I acted to effect the payment of N3,000.00 in the course of which the Bank issued savings Deposit Voucher with Account Number 3182000061745 for the re-activation. Copy of the Savings Deposit Voucher with copy of customers copy savings deposit dated 17/04/07 are in my possession to be tendered at trial.”
On the Respondent’s side, one Lasisi Babatunde Oladunmoye in paragraphs 12 and 13 of his statement on oath (page 44 of the record averred as follows:
“12. That there is nothing on record of the defendant that suggests that all the allegations made in paragraph 3 – 10 of the claimant’s statement on oath occurred.
13. That it was on record that when the claimant lodged oral complaint that she had operated an account in 1994 with the branch which she wanted to reactivate, she was informed that the account look not genuine and that the process for establishing its genuineness or otherwise might take a prolonged time she opted to re-establish relationship with the branch by opening another savings account No.3182000061745 after she satisfied the requirements for opening a savings account.”
In reaction to the above averment the Appellant in her reply to the statement of defence, of page 56 of the records, paragraph 2 averred as follows:
“2. The claimant also deny paragraphs 5 and 7 of the statement of defence and aver that she opened a new Saving Account with savings Deposit Voucher with Account Number 3182000061745 in expectation of reactivating, her old Account No.15:435 as directed by the staff of the bank.”
The question that arises now is whether from the pleadings/depositions and evidence before the court, the Lower Court was justified in its findings and conclusion that the Respondent did not breach any duty to the Appellant for the reactivation of her old account?
From the evidence adduced by the Appellant and the DW1 (Lasisi Babatunde Oladunmoye), at page 115 of the printed records the Appellant under cross examination testified to the effect that she wrote a letter which a staff of the bank informed her would be sent to Lagos, the letter was not tendered in evidence as an Exhibit and the Appellant testified that a bank officer promised to help her write the letter to Lagos, which means that no letter had been written by the Appellant or any staff of the bank on her behalf.
On the part of the Respondent, the DW1 testified at page 116 of the printed records to the effect that the Appellant had not made any request for the refund of the balance in her old account and that the Appellant voluntarily opened her new account without any prompting from the Respondent. It is therefore clear that no misrepresentation was made to the Appellant by the Respondent to pay some money for the reactivation of her old account.
The Appellant has not presented a copy of any letter that she wrote or written on her behalf (as alleged) for the payment and reactivation of her account, the name of the staff that the appellant said promised to write the letter on her behalf was not disclosed in the Lower Court.
It is worthy of note that in paragraph 8 of the DW1’s statement on oath, at page 43 of the records, the Respondent’s witness testified that the Appellant opened her savings Account No.3182000061745 (the New Account) with the Respondent on 17th April, 2007. Exhibits P3, P3A, P3B, P3C, P3D, P3E, P3F, P3G and P4 are documents that show that the Appellant had been operating her new Account with the Respondent. Exhibit P3 is the Savings Deposit Voucher of the Respondent bank, Exhibits P3A, P3B, P3C, P3D, P3E, P3F and P3G are the counter fail copies (customer’s copy) of the deposit slips dating from 17/4/07 and Exhibit P4 counter foil of a withdrawal slip of 26/07/07. This confirms that the Appellant had been operating her new account within the period the Appellant claimed she discovered the pass books of her old Account Number 15:435 containing a balance of N31,392.90 as at the date of the last transaction. Meanwhile the appellant claimed she opened the new account to satisfy the condition which she said was given to her by the Respondent for the reactivation of the old account No.15:435.
I have not seen any document, letter or evidence to show truly that the opening of the new account was to re-activate the old account, which the Respondent failed to reactivate when the appellant opened the new one which would have given rise to her entitlement to the declaration sought that the Respondent having failed to reactivate her old account No.15:435 breached her duty to the Appellant by misrepresentation.
In the Appellant’s reply to the statement of defence, she averred that she opened a new savings Account with the Respondent in expectation of reactivating her old account as directed by a staff of the bank that was not named. As to whether the new account was opened to reactivate the old one, the learned trial judge at page 141 of the printed records held thus:
“The evidence of the claimant on her expectation that her old account number 15:435 would be reactivated on opening a new account with the defendant is not founded on firm grounds and therefore not believable in the absence of any evidence about the name and designation of the staff of the defendant who gave her such an assurance….”
I hold that account number 3182000061745 is a new account opened by the claimant with the defendant bank different and distinct from account number 15:435, which was never reactivated.”
The above holding cannot be faulted. The new account was a separate and independent account voluntarily opened by the Appellant. ‘There was no proof of the demand or requirement by the Respondent that the Appellant should pay the sum of N3,000.00 to reactivate her old account. There was therefore no misrepresentation or negligence on the part of the Respondent.
In my humble view, the Appellant did not plead and prove the declaration sought in paragraph 20 (i) of her statement of claim. The alleged misrepresentation ought to have’ been proved through evidence, which the Appellant failed to do. It is also the law that an order for the declaration of a right of a party can only be made when the right of such a party has been proved by cogent evidence as rightly argued by the learned counsel to the Respondent and such right must also have been pleaded. There must be materials placed before the court for the Appellant in this case to be entitled to the declaration sought which was not made available, see, IGBINOVA vs. U.B.T.H. (2000) 8 NWLR (PT.661) 53; NKWOCHA VS. OFURUM (2002) 5 NWLR (PT.761) 506. OLOHUNDE VS. ADEYOJU 562, KUPOLUYI VS. PHILIPS (2001) 13 NWLR (PT.731) 736 AND PDP VS. ABUBAKAR (2007) ALL FWLR (PT.386) 711 AT 735 – 736 PARAS, G – C.), All that was established was that the appellant had an old account which was dormant, before the re-activation, she opened and operated new account with the Respondent.
Misrepresentation in Black’s law Dictionary, 7th Edition has been defined as follows:
“The act of making a false or misleading statement about something, with the intent to deceive. The statement so made; an assertion that does not accord with the fact.”
While negligence has been defined in the same dictionary as follows:
“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm except for conduct that is intentionally, wantonly or willfully disregardful of others’ rights. The term denotes culpable carelessness.”
In the present case, can it be said that the Appellant has proved a misrepresentation by the Respondent to the Appellant which made her pay money for the re-activation of her dormant old account with the Respondent, without the intention of effecting the re-activation for the Appellant’s benefit? And, can it be said that from the above definitions and evidence before the court the Respondent was negligent? I think not.
The Appellant has not proved any conduct or action of the Respondent that has given rise to any breach of the duty of care which would entitle her to damages. See, CLERK AND LINDSEL ON TORT 14TH EDITION, PAGE 474, AGBONMAGBE BANK LTD VS. C.F.A.O. (1966) 1 ALL NLR 140: OYIDIABU VS. OKECHUKWU (1972) 5 F.S.C. (Reprint) 123; (1972) 5 S.C. 191. ORHUE VS. NEPA (1998) 5 S.C. 121 (1998) 9 NWLR (PT.557) 187 and KOYA VS, U.B.A. (1997) 1 NWLR (PT.491) 251.
The Respondent made out that the Appellant on her own opened a new account, this was supported by the Appellant herself who pleaded that she opened a new savings account.
There is no evidence to support the alleged misrepresentation. See,UDOGWU VS. OKI (1990) 5 NWLR (PT.153) 721 AT 734, which relied on the classic authority on what constitutes miscrepresentation and the remedy or relief available to an aggrieved party, see ATWOOD VS. SMALL 7 E.R. 684 H.L. AT 764 – 765 Per Lord Brougham. There is nothing to show that there was misrepresentation made to the Appellant on the part of the Respondent that affected her adversely to warrant the award of damages. In respect of what made up the first issue as recouched at pages 144 – 145 of the printed records of appeal the trial court held as follows:
“The claim by the claimant that she made several demands to withdraw her deposit without the defendant yielding to such requests is not supported by any credible evidence. This is because deposits or withdrawals of money in banks by account holders normally take written forms such as cheques, written instructions or savings withdrawal or deposit vouchers. In the instant case the claimant tendered her savings withdrawal voucher as exhibit P4 and there is nothing contained therein to show that her written request to withdraw was refused by the defendant. Part of the case of the claimant is that after the last transaction on her old account number 15:435 on 15/11/1994 she misplaced her passbooks and could not lay hands on them until thirteen years (13 years) later in 2007.
It was after thirteen years that she approached the defendant bank for reactivation. There is nothing before me to show that the defendant unduly delayed in attending to the request of the claimant on an account that had been dormant for a period of thirteen years. I hold therefore that the defendant has not been in breach of her duty to the claimant by misrepresentation or negligence”.
It is the law that evaluation of evidence and findings of facts are within the province of the trial court and the appellate court would only interfere if such evaluation and findings are perverse and shows a misapplication of the facts or that the findings cannot be supported by evidence. In the present case, I am of the opinion that the trial court’s conclusion is not perverse. I am at one with the above conclusion of the learned trial judge and I uphold same. The first issue is resolved against the Appellant.
Having held that the Respondent did not breach her duty to the Appellant by misrepresentation or negligence the issue of entitlement to special and/or general damages does not arise and none would be awarded to the appellant. The reason is that general damages would only be awarded against the adverse party if liability had been established, then the issue of quantum would come in. In the case of U.T.B. NIG. VS. OZOEMENA (2007) 1 S.C. (PT.11) 211 AT P.229 HIS LORDSHIP KALGO J.S.C. in this respect held thus:
“Having found that the appellant was not in breach of the duty of care to the respondent as it did all that was reasonable in the circumstances, I do not think it is necessary for me to consider issue 2 in this appeal. If there is no liability for the negligence, that is the end of the whole case and the question of any damages resulting there from does not arise.”
See, also ATIVIE vs. KABEL METAL NIG. LTD (2009) 5 – 6 S. C. (PT.11) 47. On this basis, I resolve the second issue against the Appellant.
In the final analysis, I hold that the appeal is without merit and is hereby dismissed. The judgment of the learned trial judge, S. D. Kawu, J of the Kwara State High court; delivered on 17th September, 2013 in suit No.KWS/5/2013 is hereby affirmed.
I award costs of N50,000.00 (Fifty Thousand Naira) against the Appellant.
MOHAMMED LADAN TSAMIYA, J.C.A.: I read before now the judgment delivered by my learned brother CHIDI NWAOMA UWA, JCA.
I agree entirely with the reasoning and the conclusion arrived at in dismissing the appeal for lacking in merit and also dismiss I same. I abide by the order made awarding costs of N50,000.00 (Fifty Thousand Naira) against the Appellant.
MUSA HASSAN ALKALI, J.C.A.: I had the privileged of reading in draft the cogent, direct judgment of my learned brother, Chidi Nwaoma Uwa JCA. with which I agree.
I too hold that the appeal is without merit and is hereby dismissed. The judgment of the learned trial judge S. O. Kawu J. of the Kwara State Federal High Court which was delivered on the 17th September, 2013 in Suit No.KWS/5/2013 is hereby affirmed.
I award costs of N50,000.00 Fifty Thousand Naira against the appellant.
Appearances
Segun Durowaiye Esq.For Appellant
AND
Abdulwahab Bamidele Esq.For Respondent
