UBA PLC v. SRL BUREAU DE CHANGE LTD & ANOR
(2022)LCN/16532(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, May 23, 2022
CA/ABJ/CV/179/2021
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC APPELANT(S)
And
1. SRL BUREAU DE CHANGE LIMITED 2. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE CONSEQUENCES OF A COURT PROCESS BEING WITHDRAWN FROM THE COURT
By the above finding of the trial Court that the Defendant is yet to be served another Writ of Summons and the suit struck out by the trial Court, at this stage I agree with the Appellant’s learned Senior Counsel that once a process has been withdrawn from the Court, the resultant position is that the same is treated as if it had never been filed and issues raised in the withdrawn process become lifeless issues before the Court. See NABORE PROPERTIES LTD V. PEACE–COVER (NIG) LTD (Supra); KEYSTONE BANK LTD V. DAZZ MOTORS LTD (2021)3 NWLR (PT. 1762) 141 at 164 and EGBUKOHIA V. ONYEGBULE (2015)8 NWLR (PT 760) 670 at 722. PER SENCHI, J.C.A.
WHETHER OR NOT A LITIGANT CAN SUFFER FOR THE MISTAKES OF HIS LEGAL COUNSEL
Thus, concerning the mistake or inadvertence of Counsel or Court Registry, the law is well established that a Litigant should not suffer for such mistake. See FCMB V. JOHN (2021) LPELR 53356 (CA); CCB V. A.G. ANAMBRA STATE (1992)8 NWLR (PT 261) 528.
In the case of FCMB V. JOHN (Supra), this Court held that:
“The Registry of a Court should not eat sour grapes and set the teeth of a party or litigant on edge. There is no doubt that the motions of the Appellant subsequently to the extant motion were filed as a result of discovery of fundamental defects in those motions. There is nothing in law or rule of practice that forbids a party to file a fresh process to correct an error found in a previous process so long as he withdraws the previous process at the appropriate stage.”
See also SPDC (NIG) LTD V. KENCHEZ (NIG) LTD (2018) LPELR-45167 (CA), OGBURU V. IBORI (2004)1 NWLR (PT. 8711)192 at 224, AJADI V. AJIBOLA(2004)16 NWLR (PT. 898) 91 at 188-192. PER SENCHI, J.C.A.
WHETHER OR NOT A WAIVER IS AN ABANDONMEN OF A RIGHT
I agree with the learned Counsel to the 1st Respondent because for the doctrine of waiver to apply, the Supreme Court in the case of BANK OF THE NORTH LTD V. YAU (2001) LPELR 746 held as follows:
“It is well settled that waiver is an abandonment of a right. Two elements must co-exist to constitute a waiver. First, the party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes the wavier; and secondly, there must be on the part of the person against whom the doctrine is invoked, some unequivocal act adopting or recognizing the act or omission. See OLATUNDE V. OBAFEMI AWOLOWO UNIVERSITY & ANOR, (1998) 5 NWLR (PT 549) 178.”
See also ODU’A INVESTMENT CO. LTD V TALABI (1997) LPELR 2232 (SC) and ADMINISTRATORS EXECUTORS OF THE ESTATE OF LATE GENERAL SANI ABACHA (DECEASED) V. SAMUEL DAVID EKE-SPIFF & ORS (2009) LPELR-3152 (SC). PER SENCHI, J.C.A.
WHETHER OR NOT A PLAINTIFF CAN RELY ON A DEFENDANT’S CASE IN AN ACTION FOR CLAIMS OF DECLARATORY RELIEFS
Be it as it may, the 1st Respondent’s two main claims or reliefs are declaratory reliefs and reliefs C, D, E and F are consequential reliefs. And by the nature of claims for declaration, the Plaintiff must succeed on the strength of his or her case by adducing credible evidence. See ILIYA & ANOR V. LAMU & ANOR (2019) LPELR-47048, ANYANRU V. MANDILAS LTD (2007)4 SCNJ 288, CHUKWUMAH V. SPDC (NIG) LTD (1993) LPELR 864(SC).
It is trite law also that declaratory reliefs are not grantable even on the admission of the Defendant. However, the law is that there is nothing wrong in a Plaintiff taking advantage of any evidence adduced by the Defence which tends to establish the Plaintiff’s case to such declaration. See ANYANRU V. MANDILAS (NIG) LTD(supra), CHUKWUMAH V. S.P.D.C (NIG) LTD (supra) and MATANMI & ORS V. DADA & ANOR (2013) LPELR-19929, OGUANUHU V. CHIEGBOKA (2013) 2 SCNJ 693 and AKINBONI & ORS V. AKINTOPE & ORS (2016) LPELR-40184. PER SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/2945/2013, delivered on the 29th day of April, 2019 by CHIZOBA N. OJI J.
The 1st Respondent, as 1st Plaintiff before the lower Court commenced this action (with Alhaji Ja’afaru Brai Ugbodaga as 2nd Plaintiff) via a Writ of Summons and Joint Statement of Claim filed on 5th August, 2013, wherein they claimed against the Appellant as follows:
a) A Declaration that the action of the Defendant in refusing to honour the 1st Plaintiff’s cheque No. 00000237 in the sum of Three Million, Six Hundred Thousand Naira (N3,600,000.00) only in favour of one Mr. Emmanuel Abraham, amounts to a breach of contract between the Plaintiffs and the Defendant.
b) A Declaration that the action of the Defendant by withholding the said cheque no. 00000237 is malicious, done in bad faith and meant to tarnish the Plaintiff’s good name.
c) An Order of this Honourable Court mandating the Defendant to immediately release the funds of the Plaintiffs held in account No. 1015325801 domiciled with the Defendant.
d) An Order of this Honourable Court directing the Defendant to write a letter of apology to the Plaintiffs for the humiliation and blemish to their good name.
e) An Order of this Honourable Court awarding damages against the Defendant to the tune of Fifty Million Naira (N50, 000, 000.00), for the breach of trust and fiduciary relationship between the Plaintiffs and the Defendant.
f) The sum of Five Hundred Thousand Naira (₦500,000.00) as cost of action.
(See page 5 of the Record of Appeal).
A Motion Exparte was filed by the 1st Respondent on 23rd October, 2013 seeking an order granting it leave to issue and serve the Writ of Summons and other processes in the suit on the Defendant out of jurisdiction. (See pages 19-20 of the Record of Appeal).
The Appellant, as Defendant before the lower Court, filed a Conditional Memorandum of Appearance on 20th June, 2014, and a Statement of Defence on 26th June, 2014. (See pages 47 and 48-51 of the Record of Appeal respectively). On 10th November, 2016, the Appellant filed a Third-Party Notice, which was issued on the Economic and Financial Crimes Commission, wherein the Appellant claimed as follows:
a) A Declaration that the action of the Defendant in refusing to honour the 1st Plaintiff’s cheque no. 00000237 in the sum of Three Million, Six Hundred Thousand Naira (N3,600,000.00) only in favour of one Mr. Emmanuel Abraham was solely on the instruction of the Third Party.
b) An Order of this Honourable Court mandating the Third-Party to give the Defendant the go ahead to release the funds of the Plaintiffs held in account no. 1015325801 domiciled with the Defendant.
c) An Order of this Honourable Court directing the Third Party to pay or indemnify the Defendant for any damages that may be awarded against her by the Court.
d) Cost of action against the Third party.
(See pages 68-69 of the Record of Appeal)
In response to the Third-Party Notice of the Appellant, the 2nd Respondent – Economic and Financial Crimes Commission (EFCC) filed a Conditional Memorandum of Appearance on 17th November, 2016. (See pages 106-107 of the Record of Appeal). No other process was filed by the 3rd Party/2nd Respondent.
The Appellant filed its Final Written Address on 22nd June, 2018. (See pages 108-124 of the Record of Appeal). The 1st Respondent filed its Final Written Address on 13th July, 2018. (See pages 125-152 of the Record of Appeal).
The brief facts of this case, as gleaned from the 1st Respondent’s Statement of Claim, are that on the 10th day of January, 2013, the 1st Respondent issued a cheque in favour of one Mr. Emmanuel Abraham and the Appellant refused to honour the cheque and withheld the said cheque from the 10th day of January, 2013 to the 14th day of January, 2013 without any explanation. As gleaned from the Appellant’s Statement of Defence, the Appellant did not honour the said cheque because the account was placed on PND (Post No Debit) on the instruction of the Economic and Financial Crimes Commission.
Delivering his judgment, the trial Court granted the prayers of the 1st Respondent as claimed under Reliefs (a) – (d) of the 1st Respondent’s Claim, and awarded damages in the sum of Twenty Million Naira in favour of the 1st Respondent against the Defendant for the breach of the fiduciary relationship between the 1st Respondent and the Appellant. The Court held further to the effect that the EFCC, having done nothing to rebut the evidence of the Defendant (Appellant), the Defendant has proved her case, thus, Judgment was entered in favour of the Appellant as prayed under Reliefs (a) – (c) of the Appellant’s Third-Party Notice, and cost of N30,000.00 was awarded in favour of the Defendant against the Third-Party Economic and Financial Crimes Commission (EFCC).
Dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal on 5th February, 2021, pursuant to the leave granted by this Court on the 3rd day of February, 2021. The Grounds of Appeal of the Appellant are hereby reproduced (without their particulars) as follows:
GROUND ONE
The learned trial Judge erred in law when she proceeded with this case which had been struck out and without being relisted by the Court.
GROUND TWO
The learned trial Judge erred when she awarded N20,000,000 (Twenty Million Naira) as damages for breach of fiduciary relationship.
GROUND THREE
The learned trial Judge erred in law in failing to hold or found that the Defendant by virtue of Section 34(3) of the EFCC Act 2004is obliged to carry out the requirement of any order or directive from EFCC without any proof that the order of directive was lawful or illegal.
GROUND FOUR
The learned trial Judge erred in law when she found and held:
“I declare that the action of the Defendant by withholding the said cheque no 00000237 was malicious, done in bad faith and meant to tarnish the 1st Plaintiff’s good name.”
On 2nd March, 2021, the Record of Appeal was compiled and transmitted to this Court from the lower Court. On 16th March, 2021, Additional Record of Appeal was transmitted to this Court and on 14th September, 2021, the Second Supplementary/Additional Record of Appeal was transmitted to this Court.
On 22nd March, 2021, the Appellant filed its Brief of Argument. On 10th September, 2021, the 1st Respondent filed its Brief of Argument, which was deemed properly filed on 9th November, 2021.
ISSUES FOR DETERMINATION
In the Appellant’s Brief of Argument, which was settled by G. Ofodile Okafor SAN, three issues were raised for the determination of this appeal thus:
(1) Whether the trial Judge was right to have assumed jurisdiction on a suit that was struck out without being re-listed (Distilled from Ground One)
(2) Whether the trial Judge was right to have awarded a colossal sum of N20,000,000.00 (Twenty Million Naira) damages against the Appellant, notwithstanding the fact that the 1st Respondent did not prove the quantum of damages suffered before the Court. (Distilled from Ground Two)
(3) Whether the trial Judge was right to have held the Appellant liable regardless of the fact its action in placing the account of the 1st Respondent on PND was as a result of the directives of the 2nd Respondent. (Distilled from Grounds Three and Four)
In the 1st Respondent’s Brief of Argument, which was settled by John Erameh Esq., three issues were raised for the determination of this appeal thus:
(1) Whether the lawsuit giving rise to this appeal was the same as the lawsuit that was struck out on the 23rd October, 2013 and if not, whether the trial Court was right to have assumed and exercised jurisdiction. (Distilled from Ground 1 of the Amended Notice of Appeal).
(2) Whether the award of N20,000,000.00 damages by the trial Court was justified in law and constituted a valid exercise of the discretion of the lower Court (Distilled from Ground 2).
(3) Whether the learned trial Judge was right to have held that the Appellant was liable regardless of the fact that the Appellant acted at the behest of the 2nd Respondent (Distilled from Grounds 3 & 4)
ARGUMENTS OF COUNSEL
APPELLANT’S SUBMISSION
APPELLANT’S ISSUE ONE (1)
At paragraphs 4.01 and 4.02 of the Appellant’s Brief of Argument, learned senior Counsel to the Appellant submitted to the effect that jurisdiction is a threshold issue which can be raised at any stage during proceedings, and even for the first time on appeal; and all acts done by a Court without jurisdiction amount to nullity. He relied on the cases of UFOMBA V. INEC (2017)13 NWLR PT 1582 175 AT 213-214 PARAS E-B, ADEBITE V. AMOSUN (2016)15 NWLR PT. 1536 405 AT 433 PARAS D-F, ECOBANK (NIG) PLC V. INTERCONTINENTAL BANK PLC (2012)5 NWLRPTL 1293 219 AT 234 PARAS C-H, OKPALAUZUAGBA V. EZEMENARI (2011)4 NWLR PT. 1268. 492 AT 425 PARAS E-F.
At paragraphs 4.03-4.11 of his Brief of Argument, learned senior Counsel to the Appellants submitted to the effect that at the very moment the 1st Respondent filed the Notice of Discontinuance on this case, and based on the said application, the Court struck out the case, there was nothing left before the Court to litigate. He relied on the cases of NABORE PROPERTIES LTD V. PEACE-COVER (NIG) LTD (2015)2 NWLR PT. 1444 440 AT 470 PARAS F; KEYSTONE BANK LTD V. DAZZ MOTORS LTD (2021)3 NWLR PT. 1762, 141 AT 164 PARAS A-B; EGBUKOHIA V. ONYEGBULE (2015)8 NWLR PT. 1461 377 AT 393. He submitted further that the requirement of law is that a struck-out suit can only be competent before the Court if there was an application asking the Court to relist it and the Court obliged. He relied on the case of GOVERNOR OF EKITI STATE V. AKINYEMI (2011) 17 NWLR PT. 1276 373 AT 413-414 PARAS C. The learned Senior Counsel submitted that the Court had no jurisdiction to hear and determine the instant case, which had been withdrawn and discontinued without being relisted.
APPELLANT’S ISSUE TWO (2)
At paragraph 5.01-5.04 of the Appellant’s Brief of Argument, learned senior Counsel to the Appellant submitted to the effect that general damages are not recoverable in an action for breach of contract; what can be deemed as special damages in a claim for breach of contract are speculative damages otherwise known as remote damages, or punitive damages which generally are not recoverable but are recoverable as special damages if pleaded and proved. He relied on the case of OSEMWENGIE V. JSC, EDO STATE (2015)5 NWLR PT. 1453 508 533 PARAS C-F. He submitted further that though the Trial Court, in its magnanimity awarded the sum of N20,000,000.00 against the Appellant, it cannot be seen from the whole record where the 1st Respondent proved its entitlement to the damages of N20,000,000.00. He referred this Court to the case of MTN (NIG) COMMUNICATION LTD V. C.C. INV LTD (2015)7 NWLR PT. 1459 437 AT 474 PARA E, 476 PARA B-D. The learned Senior Counsel contended that the 1st Respondent could not establish at the trial Court that the loss it might have probably incurred is the one occasioned by the act of the Appellant in placing its account No. 101325801 on Post No Debit (PND), an action the Appellant carried out on the directive of the 2nd Respondent; and also, the learned trial Judge failed to assess the likely loss incurred before awarding the colossal sum of N20,000,000.00 against the Appellant, and this occasioned a miscarriage of justice. He referred to the case of JOE BEST DEV. PROPERTY LTD V. NZEGWU (NO. 2) (2016)6 NWLR PT 1507 137 AT 158. He contended further that when a Court goes against the tenets of the principles required of it to deliver a judgment, the said judgment is a perverse one. Learned senior Counsel relied on the cases of S.I.H. LTD V. NITEL TRUSTEES LTD (2015)16 NWLR PT. 1486 454 AT 480 PARAS D-E; EDILCON NIG LTD V. UBA PLC (2017)18 NWLR PT 1596, 74 AT 105 PARAS C-H, 106 PARAS 1-B and ADEBIYI V. STATE (2016)8 NWLR PT. 1515, 459 AT 474 PARAS D-F.
APPELLANT’S ISSUE THREE (3)
At paragraphs 6.01-6.05 of the Appellant’s Brief of Argument, the learned senior Counsel to the Appellants submitted to the effect that the 2nd Respondent is the regulatory agency in Nigeria on Banking and Financial transactions and the Appellant is bound to comply with its directives and bound to follow statutes; and the acts of the Appellant in the instant case are in compliance with Section 38(1)and (2) of the Economic and Financial Crimes Commission (EFCC) (Establishment) Act 2004 and Section 21 of the Money Laundering (Prohibition) Act, 2011. He submitted further at paragraphs 6.06-6.09 of his Brief of Argument to the effect that pursuant to Order 13 Rule 21 of the FCT High Court (Civil Procedure) Rules, the Defendant/Appellant filed a Third-Party Notice joining the 2nd Respondent and only a Conditional Appearance was entered on their behalf and nothing more. The trial Judge ought to have held the 2nd Respondent directly liable, having found them culpable; and since there was no privity of contract between the Appellants and the Third-Party, there is nothing to enforce against the Appellant. Also, construing the Appellant as the agent of the 2nd Respondent in the circumstance, it acted on the instruction of the 2nd Respondent. He relied on the cases of LEVENTIS TECH LTD V. PETROJESSICA ENT. LTD (1992)2 NWLR PT. 224 459 PARA D; ILESHA LOCAL PLANNING AUTHORITY V. OLAYIDE (1994)5 NWLR PT. 342 91.
In conclusion, learned Senior Counsel urged this Court to set aside the judgment of the trial Court against the Appellant.
1ST RESPONDENT’S SUBMISSIONS
1ST RESPONDENT’S ISSUE ONE (1)
At paragraphs 4.2-4.22 of the 1st Respondent’s Brief of Argument, learned Counsel to the 1st Respondent submitted to the effect that the lawsuit giving rise to this appeal was not the same as the law suit that was struck out on 23rd October, 2013; and the mere fact that the registry referenced it with the same reference number does not make both law suits one and the same, as by admission of parties, one was discontinued and another commenced in its stead. He submitted that it has been firmly established that a Court of law and equity does not make a practice of visiting the sins of the Court’s Registry on the litigants. He relied on the cases of C.C.B. (NIG) PLC V. AG ANAMBRA STATE & ANOR(1992)8 NWLR (PT. 201) 528; CO-OPERATIVE & COMMERCE BANK (NIG) PLC V. AG ANAMBRA STATE (1992) LPELR-875(SC) and EDE & ANOR V. MBA & ORS (2011) LPELR-8234 (SC). Learned Counsel submitted further that the trial Court was right to have assumed and exercised jurisdiction over the latter lawsuit and there was nothing stopping the trial Court from exercising its jurisdiction over the subject matter.
At paragraphs 4.23-4.26 of his Brief of Argument, Counsel to the 1st Respondent submitted that if there were any irregularity in the manner of commencing the action, that irregularity was waived by the Appellant the moment it elected to file its statement of defence to the substantive suit. He relied on the cases of A.P. LTD V. OWODUNNI (1991) LPELR-213 (SC) and BAKARE V. LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) LPELR-771 (SC). Counsel submitted further that the Appellant did not suffer any miscarriage of justice as a result of the reference numbers chosen by the Court’s registry and to undo a two-year trial for that reason alone will not accord with the dictates of equity and justice. Learned 1st Respondent’s Counsel submitted that the path chosen by the 1st Respondent to file fresh action was sound in law and did not impair the jurisdiction of the Court to adjudicate over the subject matter. He urged this Court to resolve issue 1 in favour of the 1st Respondent.
1ST RESPONDENT’S ISSUE TWO (2)
At paragraphs 5.2-5.11 of the 1st Respondent’s Brief of Argument, learned Counsel to the 1st Respondent submitted that it is trite that for a party to qualify or be entitled to damages, he must prove his case or in other words be a successful party in the case. He relied on the case of ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V. RAYMOND EKWENEM (2009)7 SCNJ 1 AT 19-20, PARAS 30-35. He submitted further that the Appellant knew the nature of the 1st Respondent’s business and also admitted that the value of the naira had depreciated and cannot buy the same amount of forex it would have bought with the N7,000,000.00 in the 1st Respondent’s account at the time it was frozen; and a simple return of access to the funds to the 1st Respondent after five years will not return the 1st Respondent to the position it was in 2013 when access to the funds was fully denied. Learned Counsel submitted that it is now settled law that the 2nd Respondent cannot without an order of Court freeze the bank account of a customer. He relied on the case of GTB V. ADEDAMOLA (2019)5 NWLR (PT 1664) 30 AT 43, PARAS E-F. He submitted further that it is not in doubt that the act of freezing the account of the 1st Respondent was wrongful, and being wrongful, there is a remedy.
At paragraphs 5.12-5.17 of the 1st Respondent’s Brief of Argument, learned Counsel to the 1st Respondent submitted to the effect that there is no doubt that the 1st Respondent suffered damages as a result of the Appellant’s actions, thus, the 1st Respondent did not need to plead and prove special damages in a case of wrongful dishonor of a cheque properly drawn against a well-funded account, as this falls within the exception to the general rule. He relied on the cases of UBA PLC V. GOSTAR INVESTMENT CO. LTD (2018) LPELR-44886 (CA) and MAINSTREET BANK LTD V. CHAHINE (2015)11 NWLR (PT. 1471) 494 AT 520.
At paragraphs 5.19-5.25 of his Brief of Argument, learned Counsel to the Appellant submitted that in order to justify the reversal or interference with the amount of damages granted by the trial Court, the Appellate Court will have to be convinced that the trial Court acted upon a wrongful principle of law, or that the amount awarded was extremely so high or so very small as to make it, in the Judgment of the Appellate Court, an entirely erroneous estimate of the damages to which the Plaintiff is entitled. He relied on the cases of FLINT V. LOVELL (1925)11 KB 350, ZIKS PRESS LTD V. IKOKU (1951)13 WACA 188 and IDAHOSA V. ORONSAYE (1959) SCNLR 407.
Counsel submitted further that there is no evidence to substantiate the contention of the Appellant that the trial Court acted on a wrong principle of law to have awarded the said damages. He urged this Court to discountenance the contention of the Appellant that the amount awarded was too high. Counsel contended that there is no appeal against the finding of fact that the business of the 1st Respondent collapsed as a result of the actions of the Appellant, thus, the Appellant must be taken to have accepted the finding, and the finding is presumed to be correct. He relied on the case of MATTHEW V. OTABOR (2015)14 NWLR (PT. 1479) 380-381. He contended further that the fact that this Court may have granted a different amount is not sufficient reason for this Court to interfere with the award of damages by the lower Court, as the appellate Court does not ordinarily substitute its views for the views of the trial Court. He relied on the case of UBN PLC V. AJABULE & ANOR (2011) LPELR-8239 (SC). He urged this Court to resolve issue 2 in favour of the 1st Respondent.
1ST RESPONDENT’S ISSUE THREE (3)
At paragraphs 6.3-6.14 of the 1st Respondent’s Brief of Argument, learned Counsel submitted to the effect that there is nothing in Section 38 of the Economic and Financial Crimes Commission (EFCC) Act, on which the Appellant relies in its arguments, which gives the Appellant and/or the 2nd Respondent the power to unilaterally effect freezing of the 1st Respondent’s account without an Order of Court. He submitted further that the expectation, intention and purport of the said section is to ensure compliance with lawful enquiries and same is not a blanket power to the Commission to effect routine and unjustified freezing of accounts or seizure of funds in the name of phantom investigation. Counsel contended that similarly, the provisions of Section 21 of the Money Laundering Act relied on by the Appellant is totally unavailing, as it is concerned with the obligation to provide information when requested, thus, it cannot be construed to empower the Economic and Financial Crimes Commission (EFCC) to punish persons who fail to join them in violating the law. He contended further that the power of the Economic and Financial Crimes Commission (EFCC) to freeze an account is actually provided for in Section 34 of the Economic and Financial Crimes Commission (EFCC) Act, and such power is far from absolute and was never intended to be arbitrary.
At paragraphs 6.15-6.17 of his Brief of Argument, learned 1st Respondent’s Counsel submitted to the effect that the argument of the Appellant that the 2nd Respondent is a regulatory agency of the Appellant and as such the Appellant is bound to obey orders is not backed by law. He submitted further that the Central Bank of Nigeria is the regulator of all commercial banks of which the Appellant is one; and the 2nd Respondent is not a regulator of the Appellant. Counsel relied on Section 45 of the CBN Act, 2007 and the case of GTB V. ADEDAMOLA (2019)5 NWLR (PT 1664) 30 AT 43, PARAS E-F. Counsel urged this Court to resolve issue 3 in favour of the 1st Respondent.
In conclusion, the 1st Respondent’s Counsel urged this Court to dismiss this appeal with substantial cost in favour of the 1st Respondent.
RESOLUTION OF ISSUES
Both the Appellant and the 1st Respondent distilled issues for determination as already set out in the course of this judgment. The issues formulated by both parties, for all intents and purposes are virtually the same. To that extent therefore, I will and I hereby adopt the three issues formulated by the Appellant’s Counsel as well as consider the 1st Respondent’s arguments thereunder. I will also take issues 2 and 3 together.
ISSUE ONE
Whether the trial Judge was right to have assumed jurisdiction on a suit that was struck out without being re-listed (Distilled from ground one)
At paragraphs 4.03 – 4.09 of the Appellant’s Brief of Argument, learned Senior Counsel submits to the effect that on the 29th July, 2013 the trial Court set aside the service of the originating process on the Appellant and ordered the 1st Respondent to mark the processes as required by Section 97 of the Sherriff and Civil Processes Act and the case was subsequently adjourned to 23rd October, 2013. On 23rd October, 2013, pursuant to a Notice of Discontinuance filed by the 1st Respondent, the 1st Respondent’s suit was struck out i.e. Suit No FCT/HC/CV/2945/2013. Then on 26th November, 2013, by an Exparte Motion filed by the 1st Respondent, the trial Court ordered that the Writ of Summons and other ancillary papers be served on the Appellant out of jurisdiction at No. 57 Marina Lagos.
The learned senior Counsel contended that the 1st Respondent did not comply with the order of the trial Court made on 29th July, 2013 ordering the 1st Defendant to file and re-issue a new Writ, rather the 1st Respondent processed with an already struck out suit. According to learned senior Counsel, the 1st Respondent never filed any application for re-listing Suit No. FCT/HC/CV/2945/2013. Learned senior Counsel therefore contends that the Court has no jurisdiction to hear and determine the instant case, having been withdrawn and discontinued and not re-listed.
The 1st Respondent on the other hand at paragraphs 4.3–4.25 of the 1st Respondent’s Brief of Argument, learned Counsel submits to the effect that the 1st Respondent filed an earlier Writ of Summons on 7th March, 2013 with Suit No. FCT/HC/CV/2945/2013 which service on the Appellant was set aside by the Trial Court on 29th July, 2013 for non-compliance with Section 97 of the Sheriff and Civil Process Act. The 1st Respondent’s Counsel submits that rather than towing the path of endorsing the Writ of Summons with the appropriate endorsement and re-serve the Appellant, he elected to discontinue the entire suit by filing a notice of discontinuance on 22nd October, 2013. On 23rd October, 2013 the trial Court struck out the suit filed on 7th March, 2013. Then the 1st Respondent, in compliance with the order of the trial Court, filed a marked Writ of Summons on the 5th August, 2013 pursuant to an Exparte Motion filed on 23rd October, 2013 which suit was later determined by the trial Court on 29th April, 2019.
The learned Counsel to the 1st Respondent contends that the act of the Registry of choosing to reference the suit number of the re-filed lawsuit in the manner they did is the raison d’etre for the objection on jurisdiction of the Appellant. He therefore contends that the sins of the Registry Court staff cannot be re-visited on the Litigant. He further contends that even if there were irregularity in commencing the suit, the irregularity was waived by the Appellant the moment it elected to file a Statement of Defence to the substantive suit.
Now, I have perused closely the process filed commencing this suit. The 1st Respondent at the trial Court filed a Writ of Summons on 7th March, 2013 (see pages 104-105 of the Record of Appeal). This Writ of Summons and Statement of Claim was assigned suit No. FCT/HC/CV/2945/2013. On service of the 1st Respondent’s originating processes on the Appellant, the Appellant filed a Memorandum of Conditional Appearance and a Motion on Notice seeking to strike out suit No. FCT/HC/CV/2945/2013 for noncompliance with Section 97 of the Sheriffs and Civil Processes Act. Then on 29th July, 2013, the Trial Court held as follows:
“The service to the Defendants of a writ of summons which was not endorsed in accordance with section 97 of Sherriff and Civil Process Act is hereby set aside. The consequence of serving a defective writ of summons on the Defendant cannot be striking out the suit, the Plaintiff is hereby ordered to endorse the writ as required by Section 97 of Sherriff and Civil Processes Act and serve same on the Defendant.”
(See pages 3-4 of the Additional Record of Appeal)
The 1st Respondent, after the decision of the trial Court of 29th July, 2013, instead of endorsing the Writ of Summons filed on 7th March, 2013 with Suit No. FCT/HC/CV/2945/2013, decided to file a Notice of Discontinuance of the suit filed on 7th March, 2013. The trial Court on 23rd October, 2013 held as follows:
“Technically, there is no Writ of Summons served on the Defendant because the Court had set aside the services of the Writ of Summons on the Defendant, the Defendant is yet to be served another Writ of Summons. The notice of discontinuance ought not be served on the Defendant because they have not been served a valid Writ of Summons. This matter is struck out, no cost is awarded.”
(See pages 168-169 of the Record of Appeal).
By the above finding of the trial Court that the Defendant is yet to be served another Writ of Summons and the suit struck out by the trial Court, at this stage I agree with the Appellant’s learned Senior Counsel that once a process has been withdrawn from the Court, the resultant position is that the same is treated as if it had never been filed and issues raised in the withdrawn process become lifeless issues before the Court. See NABORE PROPERTIES LTD V. PEACE–COVER (NIG) LTD (Supra); KEYSTONE BANK LTD V. DAZZ MOTORS LTD (2021)3 NWLR (PT. 1762) 141 at 164 and EGBUKOHIA V. ONYEGBULE (2015)8 NWLR (PT 760) 670 at 722.
The 1st Respondent, as rightly submitted by the learned senior Counsel on behalf of the Appellant, did not file any application re-listing Suit No. FCT/HC/CV/2945/2013 filed on 7th March, 2013. The 1st Respondent, instead of filing an application for re-listing, filed a fresh or new Writ of Summons on 5th August, 2013 pursuant to an exparte application granted by the trial Court on 26th November, 2013 granting leave to the 1st Respondent to issue and serve the Writ of Summons and other process in this suit on the Defendant.
The Writ of Summons filed on 5th August, 2013 was clearly endorsed for service outside the jurisdiction of the trial Court at Lagos.
Contrary to the submissions of learned senior Counsel to the Appellant, the 1st Respondent have the option to file an application to re-list the earlier struck out suit or to file a new or fresh suit. The 1st Respondent is not bound to reactivate the earlier suit struck out but can instead of such reactivation of the earlier suit struck out, file a new suit with the same claims or otherwise. In the case of CHIEF OF DEFENCE STAFF & ANOR V. TIJAH (2016) LPELR-40819, this Court, on the effect of an order of striking out held thus:
“Struck out the suit without foreclosing the rights of the Respondent from re-litigating same, the Respondent could have applied for its re-listment or could have filed another suit claiming the same or similar remedies. A suit that was struck out can be relisted on the application of the party that instituted the action. When relisted, it is not a new suit; it is still the old suit. See KASSIM V. EBERT (1966) NWLR 75. When a suit or an appeal is struck out, it is as if no suit or appeal was ever filed.”
In NDIC V. OKEKE (2011)6 NWLR (PT 1244) 445, the Court held at pages 462-463 paragraphs G-A as follows:
“A suit which has not been heard on the merit could only have been struck out and could not have been dismissed on the merit. The effect of the order of striking out is to temporarily remove the case from the Court’s list and could be brought back by either re-listment or refilling afresh. The failure of the first option does not foreclose the second one. Also, in H.B (NIG) PLC V LODIGIANI (NIG) LTD (2010) 14 NWLR (pt1213) 330 at 348 paragraphs B-D, the Court held as follows:
“An order striking out a matter gives an opportunity to the party who instituted the action to apply to the Court for an order relisting same, or to file a fresh action.”
See also AJIJOLA V. RASAKI & ORS (2019) LPELR (SC) and PANALPINA WORLD TRANSPORT (NIG) LTD V. J. B. OLANDEEN INTERNATIONAL & ORS (2010) LPRLR-2902 (SC).
And it must be noted by both parties that the essence of re-listing or refilling a fresh action is to enable the defaulting party to rectify the deficiency in the hitherto incompetent process filed.
The next issue to tackle or resolve is the contention that both the earlier suit struck out and not relisted and the fresh suit filed on 5th August, 2013 bear the same suit No. FCT/HC/CV/2945/2013.
I have perused the two Writs. The Writ filed on 7th March, 2013 bears suit No. FCT/HC/CV/2945/2013. This Suit No. FCT/HC/CV/2945/2013 was struck out on 23rd October, 2013. In the former suit that was struck out, I can see fees being assessed and paid (see page 104 of the Record of Appeal). The new or fresh action was filed on 5th August, 2013 and it has the same suit no. FC/HC/CV/2945/2013. The fresh suit or action was also assessed in terms of fees and paid. And the writ was endorsed for service in Lagos, a place outside the jurisdiction of the trial Court. The Writ filed on 5th August, 2013 being a fresh one, it is the duty of Registry of the trial Court to assign a fresh suit number. The mistake of the Registry staff of the trial Court in assigning or giving the same suit No. FCT/HC/CV/2945/2013 cannot be heaped at the door steps of the Litigant. The Litigant may not have any incline as to the internal workings of the Registry of the trial Court or how suit numbers are assigned or given.
Thus, concerning the mistake or inadvertence of Counsel or Court Registry, the law is well established that a Litigant should not suffer for such mistake. See FCMB V. JOHN (2021) LPELR 53356 (CA); CCB V. A.G. ANAMBRA STATE (1992)8 NWLR (PT 261) 528.
In the case of FCMB V. JOHN (Supra), this Court held that:
“The Registry of a Court should not eat sour grapes and set the teeth of a party or litigant on edge. There is no doubt that the motions of the Appellant subsequently to the extant motion were filed as a result of discovery of fundamental defects in those motions. There is nothing in law or rule of practice that forbids a party to file a fresh process to correct an error found in a previous process so long as he withdraws the previous process at the appropriate stage.”
See also SPDC (NIG) LTD V. KENCHEZ (NIG) LTD (2018) LPELR-45167 (CA), OGBURU V. IBORI (2004)1 NWLR (PT. 8711)192 at 224, AJADI V. AJIBOLA(2004)16 NWLR (PT. 898) 91 at 188-192.
I therefore agree with the learned Counsel to the 1st Respondent that a party should not be allowed to suffer for the mistake of the Registry of the Court. This is because the trial Court found that the 1st Respondent did not comply with Section 97 of the Sheriffs and Civil Processes Act because there was no endorsement for service outside jurisdiction and the 1st Respondent then withdrew the defective Writ and it was struck out, and a fresh Writ was filed, with endorsement issued, fees assessed and paid on 5th August, 2013, the Registry ought to have assigned another suit number rather than use the previous suit number upon which the earlier Writ was struck out. I therefore disagree with the position of the senior Counsel to the Appellant that the trial Court had no jurisdiction to hear the suit.
Furthermore, on this issue no 1, I have perused the entire Record of Appeal including the Additional Record and Supplementary Record complied and transmitted to this Court. At the commencement of the suit in which the Writ of Summons was filed on 5th August, 2013 (See pages 1-7 of the Record), the Appellant filed a Statement of Defence in response to the Statement of Claim of the 1st Respondent. The 1st Respondent’s Counsel contends that the Appellant having filed a Statement of Defence, the irregularity complained by the Appellant has been waived. I agree with the learned Counsel to the 1st Respondent because for the doctrine of waiver to apply, the Supreme Court in the case of BANK OF THE NORTH LTD V. YAU (2001) LPELR 746 held as follows:
“It is well settled that waiver is an abandonment of a right. Two elements must co-exist to constitute a waiver. First, the party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes the wavier; and secondly, there must be on the part of the person against whom the doctrine is invoked, some unequivocal act adopting or recognizing the act or omission. See OLATUNDE V. OBAFEMI AWOLOWO UNIVERSITY & ANOR, (1998) 5 NWLR (PT 549) 178.”
See also ODU’A INVESTMENT CO. LTD V TALABI (1997) LPELR 2232 (SC) and ADMINISTRATORS EXECUTORS OF THE ESTATE OF LATE GENERAL SANI ABACHA (DECEASED) V. SAMUEL DAVID EKE-SPIFF & ORS (2009) LPELR-3152 (SC).
In the instant case, the Appellant is aware of the defective Writ which was struck out and also aware of the Writ of Summons and Statement of Claim filed on 5th August, 2013. The Appellant proceeded to file a Statement of Defence and participated fully in the case at the Trial Court until judgment was delivered on 29th April, 2009. The Appellant cannot therefore complain of the irregularity in the Writ commencing the action of the 1st Respondent, as it had waived that right to complain and the trial Judge, I hold the view, was therefore right and correct in assuming jurisdiction in the fresh suit filed on 5th August, 2013 and I so hold. The first issue is therefore resolved against the Appellant and in favour of the 1st Respondent.
ISSUES TWO AND THREE
Whether the trial Judge was right to have awarded a colossal sum of N20,000,000.00 damages against the Appellant notwithstanding the fact that the 1st Respondent did not prove the quantum of damages suffered before the Court (distilled from ground two).
In the Appellant’s Brief of Argument, at paragraphs 5.01-5.04, learned senior Counsel submits to the effect that damages are not recoverable in an action for breach of contract except special damages which are deemed in a claim for breach of contract as speculative damages or known as remote damages or punitive damages recoverable as special damages if pleaded and proved. He submits on behalf of the Appellant that the 1st Respondent never led evidence before the trial Court for the award of such colossal sum of N20,000,000.00 against the Appellant. Learned senior Counsel further submits that the 1st Respondent could not establish at the trial Court that the loss which it might have probably incurred is the one occasioned by the act of the Appellant in placing its account No. 101325801 on post no debit (PND), an action the Appellant carried out on the directive of the 2nd Respondent.
On the other hand, learned Counsel to the 1st Respondent submits at paragraphs 5.2-5.22 of the 1st Respondent’s Brief of Argument to the effect that the term “damages” is customarily used in law to mean monetary compensation obtainable by a successful party. He submits that the 1st Respondent proved its case against the Appellant in dishonoring its cheque issued to one Emmanuel Abraham for the purchase of forex from the autonomous window, which the Appellant retained for 4 days before it was returned unpaid, based on the fact that the 2nd Respondent wrote to the Appellant to place the account on PND.
Be it as it may, the 1st Respondent’s two main claims or reliefs are declaratory reliefs and reliefs C, D, E and F are consequential reliefs. And by the nature of claims for declaration, the Plaintiff must succeed on the strength of his or her case by adducing credible evidence. See ILIYA & ANOR V. LAMU & ANOR (2019) LPELR-47048, ANYANRU V. MANDILAS LTD (2007)4 SCNJ 288, CHUKWUMAH V. SPDC (NIG) LTD (1993) LPELR 864(SC).
It is trite law also that declaratory reliefs are not grantable even on the admission of the Defendant. However, the law is that there is nothing wrong in a Plaintiff taking advantage of any evidence adduced by the Defence which tends to establish the Plaintiff’s case to such declaration. See ANYANRU V. MANDILAS (NIG) LTD(supra), CHUKWUMAH V. S.P.D.C (NIG) LTD (supra) and MATANMI & ORS V. DADA & ANOR (2013) LPELR-19929, OGUANUHU V. CHIEGBOKA (2013) 2 SCNJ 693 and AKINBONI & ORS V. AKINTOPE & ORS (2016) LPELR-40184.
Now I have perused at pages 176–184 of the Record of Appeal the evidence of PW1, a subpoenaed witness and a staff of the Appellant, and the evidence of PW2, the Managing Director of the 1st Respondent. By the testimony of PW1, the 1st Respondent is a customer of the Appellant and the statement of account of the 1st Respondent was tendered and admitted in evidence through PW1 as Exhibits P1 and P1(A) respectively. PW2 adopted his Witness Statement on Oath deposed to on 5th August, 2013 as his evidence in this case. (See pages 6-7 and 10-11 of the Record of Appeal) and his testimony on oath at pages 178-184 of the Record of Appeal. The photocopy of the cheque issued by the 1st Respondent to one Emmanuel Abraham for the sum of N3,600,000.00 was tendered and admitted in evidence by the trial Court as Exhibit P2. PW2 testified that the cheque, Exhibit P2 was dishonoured and that by Exhibit P1, the statement of account, the 1st Respondent had sufficient funds. He also testified that he was not informed why the Appellant dishonoured his cheque, Exhibit P2. PW2 further testified that his Counsel wrote to the Appellant but the Appellant did not reply the said letter. The evidence of the Appellant on record during cross-examination by the 1st Respondent’s Counsel appears to strengthen the case of the 1st Respondent. DW1 testified that the Appellant froze the account of the 1st Respondent pursuant to the 2nd Respondent’s order and that the account of the 1st Respondent is well funded with the Appellant. DW1 also testified that she knowns the business of the 1st Respondent and that the 1st Respondent does the business of Bureau De Change (see pages 193 – 198 of the Record of Appeal on the answers elicited from DW1 during cross-examination by the 1st Respondent’s Counsel).
From the avalanche of evidence adduced by the witnesses of the 1st Respondent and exhibits tendered and admitted in evidence and also the case of the Appellant having strengthened the case of the 1st Respondent, the Appellant has no reason whatsoever to dishonor Exhibit P2 while the account of 1st Respondent is funded and the Appellant was also wrong to place a post no debit (PND) on the account of the 1st Respondent. The trial Court, at pages 220-225 of the Record of Appeal, painstakingly evaluated the evidence adduced by witnesses of the 1st Respondent and considered the evidence of the Appellant and the provisions of the Economic and Financial Crimes Commission (EFCC) Act purportedly relied upon by the Appellant, and came to a correct finding at page 225 of the Record of Appeal thus:
“The Economic and Financial Crimes Commission (EFCC) having given the order to the Defendant to place a post no debit on the 1st Plaintiff’s account without first obtaining a Court order to enable it give such an order acted ultra vires its powers under the Economic and Financial Crimes Commission (EFCC) Act. The order to freeze the account of the 1st Plaintiff given by Economic and Financial Crimes Commission (EFCC) to the Defendant is therefore unjustified in law and null and void, and I so hold. The Defendant acting on the said order of the Economic and Financial Crimes Commission (EFCC) given without a Court order is equally not justified in law and I so hold.”
The trial Court in further evaluation of the evidence before it held as follows:
“The Defendant in this case did not exercise such reasonable care and skill. The Defendant was well aware that Economic and Financial Crimes Commission (EFCC) had no Court order to authorize their demand to freeze the 1st Plaintiff’s account, yet they proceeded to freeze the account on a baseless demand. See Exhibit D2, D4 where they requested the Economic and Financial Crimes Commission (EFCC) to obtain the required Court order. The Defendant has no lawful excuse for its conduct and I so hold. The 1st Plaintiff having in her account as at January, 10th 2013, the sum of over N7,000,000.00 was entitled to have its valid cheque of N3,600,000.00 drawn on the said account in favour of the Emmanuel Abraham honoured by the Defendant upon presentation.
The failure of the defendant to so honour the cheque is a breach of its contract with the Plaintiff to which the 1st Plaintiff is entitled to damages. Not only did the Defendant breach the contract, the Defendant withheld the cheque for four days before returning same to the 1st Plaintiff. Exhibit P3 written to the Defendant was not replied by the Defendants and DW1 stated in cross-examination she was not the officer who handled the transaction i.e. but personally refused to cash the cheque Exhibit P2. From the cross-examination of DW1 the Defendants carried out KYC on the 1st Plaintiff’s account. The Defendant is aware that the 1st Plaintiff carried on Bureau de change business. The cheque Exhibit P2 was issued to Emmanuel Abraham in the normal cause of 1st Plaintiff’s business. The evidence of the PW2 on paragraph 10 of his witness statement on oath that the cheque was for purchase of foreign exchange from the autonomous window and the inability of the Defendant to honour the cheque has caused the Plaintiff’s business to collapse as they have been unable to meet their obligation. This was not refuted by the Defendant.
The DW1 in cross-examination further admitted that the value of the Naira has depreciated as against the dollar between January, 2013 when the account was frozen till today. She also agreed that even if the funds of the 1st Plaintiff are released today, they would not buy the same amount of foreign exchange they would have bought in 2013 when the account was frozen.
(See pages 226 – 227 of the Record of Appeal).
The trial Court thereafter granted the claims of the 1st Respondent against the Appellant. (See pages 226 – 227 of the Record of Appeal).
The learned senior Counsel submits at paragraphs 5.03 and 5.04 of the Appellant’s Brief of Argument that the 1st Respondent could not establish at the trial Court that the loss which it might have probably incurred is one occasioned by the act of the Appellant in placing its account on Post No Debit (PND), an action the Appellant carried out on the directives of the 2nd Respondent and that the reasons relied upon by the trial Court are not borne out by evidence. According to learned senior Counsel, PW2’s evidence at paragraph 10 of his Witness Statement on oath did not disclose evidence as to the loss suffered by the 1st Respondent, how much he lost and what would have been his gain.
I quite agree with the learned senior Counsel that where special damages are claimed, it is necessary to plead particulars of such damages and lead credible evidence in proof thereof. In the instant case, the deposition at paragraphs 10 of PW2’s Witness Statement on oath did not provide sufficient and credible evidence to establish the assertion at paragraph 10 of the 1st Respondent’s Statement of Claim. In fact, the said paragraph 10 on oath is a repetition of the averment at paragraph 10 of the 1st Respondent pleading. The Apex Court in the case of ARISONS TRADING ENGINEERING CO. LTD V MILITARY GOV, OGUN STATE & ORS (2009) LPELR-554 has laid down the condition precedent in proof of special damages in that credible evidence must be led in no uncertain terms. And it is trite that the proof must be positive from the facts which satisfy the Court of their truth but not by repeating on oath undigested averments in the Statement of Claim that are lubricated by various guess work to lend them semblance of factual authenticity. The question that will arise here is whether the claim of N50,000,000.00 at paragraph 12 (e) of the 1st Respondent’s Statement of Claim, whereby the trial Court awarded N20,000,000.00 is in the nature of a special damages?
Now from the record before this Court, especially at page 220 of the Record of Appeal, the trial Court held as follows:
“It is not in dispute that:
(1) The 1st Plaintiff maintains account no. 1015825801 with the Defendant’s Branch at A.P. Plaza, Adetokumbo Ademola Crescent Wuse II Abuja.
(2) On 10th January, 2013, the 1st Plaintiff issued a cheque Exhibit P2 to one Emmanuel Abraham drawn on the said account for the sum of N3,600,000.00 to pay a customer and that the Defendant refused to honour the cheque.
(3) That the 1st Plaintiff at the material time had sufficient funds specifically over ₦7,000,000.00 in her account to accommodate the cheque so issued.
(4) That the reason the Defendant refused to honour the cheque was because she was instructed by the third party Economic and Financial Crimes Commission (EFCC) to place a post No debit on the Plaintiff’s account. That there was no Court order obtained by the Economic and Financial Crimes Commission (EFCC) or the Defendant to back up the post no debit instruction from 10th January, 2013 to date.
(5) That since 10th January, 2013 the 1st Plaintiff has been denied access to the said account till date.”
The above are the findings of the trial Court. The facts and evidence in support of the above findings are not in dispute. This Court in the case of GTB V. OYEWOLE & ANOR (2013) LPELR 22166 held thus:
“By the state of pleadings of both parties, it is not disputed that 1st Respondent is an account holder with the Appellant which issued the 1st Respondent account number 421/421752/110. This fact alone establishes a fiduciary relationship which thereby elicits a duty of care by the Appellant to the 1st Respondent. A breach of such a duty of care imposes a liability for negligence on the bank (the Appellant). See AFRIBANK NIG PLC V. A.I. INVESTMENT LTD (2002)7 NWLR (PT. 765) 40; AGBANELO V. UBN LTD(2000) WRN 1; NDOMA EGBA V. ACB (2005) 7 SC (PT. 111) 27.”
By the pleadings and evidence in this case, it is crystal clear that the relationship between the Appellant and the 1st Respondent is fiduciary in nature and the Appellant’s obligation to the 1st Respondent is founded on trust and confidence. This must imply that the bank (Appellant) must be trusted to keep the 1st Respondent abreast of the state of his account at short or regular intervals, usually monthly. A fiduciary obligation of a bank certainly does not admit of a game of hide and seek or a cloak and dagger operation. It requires openness and transparency and, in this case, such fiduciary relationship was not displayed by the Appellant to the 1st Respondent, as the Appellant kept the 1st Respondent in the dark over non-payment of its cheque and placing the account on post no debit (PND). See the case of UNION BANK V. CHARI VICK (NIG) LTD (2019) LPELR 49186 (CA), ALLIED BANK OF NIG. LTD V AKUBUEZE (1997)7 NWLR (PT 11) 1 at 18, JOE GOLDAY CO LTD V. COOPERATIVE DEVELOPMENT BANK PLC (2003) LPELR 1617 (SC).
Further by the evidence on record in this case, the 1st Respondent’s account was well funded to the tune of over N7,000,000.00, while the cheque, Exhibit P2 was for the sum of N3,600,000.00. As rightly found by the trial Court, the Appellant refused, neglected or failed to honour the cheque, Exhibit P2, issued by the 1st Respondent. Thus, there is a clear breach of contract between the Appellant and the 1st Respondent. The Appellant, as rightly held by the trial Court, is liable to the 1st Respondent in damages for breach of contract. See UBN PLC V. CHIMAEZE (2014) LPELR-22699 (SC), UNION BANK OF NIGERIA LTD V. NWOYE (1996)3 NWLR (Pt 435) 135.
Thus, where there is a breach of contract, as in the instant case by the Appellant, the trial Court was right and correct in awarding damages of N20,000,000.00. This sum awarded to the 1st Respondent is not in the realm of special damages. The Appellant’s learned senior Counsel is of the view that general damages cannot be awarded to the 1st Respondent based on the principles of contract. In the case of FIDELITY BANK PLC V. THE INCORPORATED TRUSTEES OF PENTECOSTAL GRACE WINNERS MINISTRIES INTERNATIONAL & ORS (2018) LPELR 44655, this Court held thus:
“The arguments of the Appellant regarding the wrongness in the award of general damages and or the quantum of the general damages awarded to the Respondents and basing these on the principles of contract, in my considered view is a clear display of the non-appreciation by the Appellant of the position of the law that a claim founded on a breach of contract can properly attract damages arising from some other heads of tort. In other words, a claim or cause of action based on contract can be the basis of award of damages under the tort of negligence or trespass to person and or goods.”
See also GTB V. REGISTERED TRUSTEES OF NEPWHAN (2021) LPELR 54609 (CA).
Further, award of damages is one of the exceptions to the general rule regarding breach of contract to the effect that the Plaintiff must plead and strictly prove his loss to be entitled to damages. See MAINSTREET BANK LTD V. CHAHINE (2015)11 NWLR (PT. 1471) 494 at 520 and UBA PLC V. GOSTAR INVESTEMENT CO. LTD (2018) LPELR-44886 (CA).
In the case of UBA PLC V. CHIEF M. A. OLAIFA (2015) LPELR-24539, this Court as per OWOADE JCA held as follows:
“It has been firmly established through case law that the refusal by a banker to pay a customer’s cheque when he holds in hand the amount equivalent to that endorsed on the cheque belonging to the customer amounts to a breach of contract for which the banker is liable for damages. See ADERINSOLA BALOGUN V. THE NATIONAL BANK OF NIGERIA LTD (1978)3 SC 111.”
On the issue of whether the trial Court was right to have held the Appellant liable regardless of the fact that the action to place the account of the 1st Respondent on PND was as a result of the directives of the 2nd Respondent, Economic and Financial Crimes Commission (EFCC), the trial Court was right because the Economic and Financial Crimes Commission (EFCC) have no such powers except by an order of a competent Court of law. See GTB V ADEDAMOLA (2019) 5 NWLR (PT. 1664) 30 at 43.
In the case of UKIRI V. EFCC (2018)1 NWLR (PT. 1599) 166 at 172, this Court held as follows:
“These Sections 28 and 29 of the Act underscore the fact that the Commission has no outright or arbitrary power of its own to attach and cause forfeiture of any property or asset to the Federal Government of Nigeria; it has to make the necessary application to the Court in that regard, even where exigency demands that they attach the assets with requisite speed, they must get to Court to obtain an Order to back up the seizure.”
Thus, the Appellant cannot hide under the guise of the Economic and Financial Crimes Commission (EFCC) to deprive the 1st Respondent of her well-earned funds kept with the Appellant under their contractual obligations. The EFCC having failed to produce a Court Order empowering it to act on that behalf, the Appellant is on its own peril. In the case of MAINSTREET BANK PLC V. DIZENGOFF (WEST AFRICA) NIGERIA LIMITED (2014) LPELR-24193, this Court as per SANKEY, JCA held as follows:
“I entirely agree with the learned Counsel to the Respondent that it is a banker’s duty to pay out money from a Customer’s account only according to a Customer’s mandate. A banker is, in contract and in duty, bound to obey the Customer’s mandate once it is found to be in order and there is no legal disability stopping the bank from obeying the mandate given. when a banker thus acts contrary to the mandate of his customer, he will be acting in breach of his contractual obligation and at his own peril.”
In the instant case, there is no legal disability for the Appellant to have acted otherwise. The Appellant would have insisted to the EFCC on obtaining the Court Order to “Post No Debit” (PND) on the account of the 1st Respondent. Thus, failure of the Appellant to obey lawful mandate from her customer by dishonouring the cheque, Exhibit P2 while the account of the 1st Respondent was well funded, the Appellant is in grave breach, and the breach certainly attracts damages.
Thus, based on the forgoing, issues two and three are hereby resolved against the Appellant and in favour of the 1st Respondent. In the whole, the three issues are resolved against the Appellant and in favour of the 1st Respondent. This appeal therefore lacks merit and it is accordingly dismissed.
The judgment of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/CV/2945/2013 delivered on the 29th day of April, 2019 by CHIZOBA N. OJI, J. is hereby affirmed.
No award as to cost.
STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Danlami Zama Senchi, JCA.
The issues raised have been adequately dealt with in the lead judgment. I agree with the reasoning and conclusion that the appeal lacks merit. I too do disallow the appeal. The appeal is hereby dismissed for lacking in merit.
I abide by the consequential order as made therein.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read in draft the lead judgment of my learned brother, Danlami Zama Senchi, JCA.
I am in agreement with the reasoning and conclusion reached therein. I hereby dismiss the appeal for lacking in merit and affirm the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/2945/2013 delivered on the 29th day of April, 2019 by Chizoba N. Oji, J.
I make no order as to costs.
Appearances:
G. Ofodile, SAN, with him, I. J. Michael, Esq. For Appellant(s)
John Erame, Esq. – for 1st Respondent For Respondent(s)