UBN PLC v. ISUKU
(2022)LCN/16538(CA)
In the Court of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/B/554/2019
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
UNION BANK OF NIGERIA PLC APPELANT(S)
And
MADAM FRANCISCA ISUKU RESPONDENT(S)
RATIO
WHETHER OR NOT EVIDENCE GOTTEN UNDER CROSS-EXAMINATION OF A DEFENCE WITNESS CAN BE RELIED ON IN PROVING FACTS BETWEEN PARTIES
It is trite that evidence elicited under Cross-examination of a defence witness which is in line with the facts pleaded by the Claimant forms a part of the evidence produced by the Claimant in support of the facts pleaded in the statement of claim and can be relied upon in proof of the facts in dispute between the parties. See Adeosun V. Governor of Ekiti State (2012) 4 NWLR (Pt. 1291) 581 at 600. PER BOLA, J.C.A.
THE PURPOSE OF THE AWARD OF DAMAGES
The object of the award of damages is to give compensation to the Plaintiff for the damages, loss of injury which he has suffered. The damages must be attributable to the breach of some duty by the Defendant. See Union Bank PLC V. Chimaeze (2014) 9 NWLR (Pt. 1411) 166 at 191 – 192. PER BOLA, J.C.A.
WHETHER OR NOT GENERAL DAMAGES NEEDS TO BE PLEADED
It need be asserted that general damages need not be pleaded. It arises from inference of law and need not be proved by evidence. It suffices once generally averred in the pleadings. They are presumed by law to be the direct and probable consequence of the Defendant complained of. Unlike special damages, general damages is generally incapable of exact calculation. See Union Bank V. Chimaeze (supra) at 192-193. In other words, general damages flows naturally from the success of a case. Unlike special damages which must be pleaded specially and strictly proved, the award of general damages is determined by what is reasonable in the circumstance of the case. Eneh V. Ozor (2016) 16 NWLR (Pt. 1538) 219 at 238. PER BOLA, J.C.A.
SAMUEL ADEMOLA BOLA, J.C.A. (Delivering the Leading Judgment): This appeal stems from the Judgment of the High Court of Justice sitting in Benin City, Edo State delivered by Hon. Justice E.O. Ahamioje on the 17th day of January, 2019 wherein he entered Judgment for the Respondent and against the Appellant.
Aggrieved by the decision, the Appellant filed at the lower Court its Notice of Appeal on 16th of April 2019. Pursuant to the order of this Court granted on 24/11/2021, leave was granted allowing the Appellant to amend its Notice of Appeal. The Amended Notice of Appeal was deemed filed on the aforesaid dated (24/11/2021). The Record of Appeal was deemed transmitted to this Court on 24/11/2021.
The Appellant’s Brief of Argument settled by Idemudia Ilueminosen, Esq., was filed on 22/1/2020 but was deemed filed on 24/11/2021. The Respondent’s Brief settled by Sylvester Ogbe, Esq., filed on 7/6/2021 was deemed filed on 24/11/2021.
BACKGROUND FACTS OF APPEAL
On 17th day of July 2016, the Respondent (Claimant) filed her writ of summons and statement of claim at the trial Court against the Appellant (Defendant) claiming the following reliefs:
(a) The sum of Four Million Naira, Four Hundred and Fifty Nine Thousand, Five Hundred and Twenty Nine Naira (N4,459,529.00) being the money lodged by the Claimant into the Defendant vide account No. 0036841689.
(b) Interest of the sum of N4,459,529.00 at the rate of 9.25% per month from 1st March, 2012 till Judgment.
(c) Interest at the rate of 21% per month from Judgment till the satisfaction of same.
(d) Exemplary damages of Three Million Naira only (N3,000,000.00).
(e) General damages of Two Million Naira only (N2,000,000.00).
After the exchange and close of pleadings between the parties, the matter proceeded to trial with the witnesses of the parties giving evidence at the trial Court on the condition of hearing. Judgment was delivered in favour of the Claimant (Respondent) and against the Defendant (Appellant) as follows:
1. The sum of Four Million Naira, Four Hundred and Fifty Nine Thousand, Five Hundred and Twenty Nine Naira (N4,459,529.00).
2. Interest on the Sum of N4,459,529.00 (Four Million, Four Hundred and Fifty Nine Thousand, Five hundred and Twenty Nine Naira only at the rate of 9.25% per month from 1st of March, 2012 till Judgment.
3. Interest at the rate of 20% per month from Judgment date till the satisfaction of same.
4. The sum of One Million Naira (N1,000,000.00) as general damages
5. Cost which is assessed and fixed at N50,000.00 (Fifty Thousand Naira) only.
ISSUES FOR DETERMINATION: APPELLANT’S BRIEF.
The Appellant, in its Brief, formulated four issues for determination Viz:
(1) Whether the learned trial Judge was not in error when it held that the claimant has been able to prove that “Gloria Ogbeide/Bakare, an erstwhile staff of the Defendant and other persons colluded to unlawfully withdraw various sums of money from the Claimant’s Account held with the Defendant which amounts to the sum of N4,459,000.00 without the consent and authority of the Claimant”.
(2) Whether the trial Court did not err in law and fact when it awarded the Judgment interest to the Respondent therein at the rate of 9.25% per month as against the 9.25% per annum as expressed and appealed to by the parties in Exhibit “G2” and against all known prevailing interest rate as directed and regulated by the Central Bank of Nigeria.
(3) Whether the trial Court has jurisdiction to award post Judgment interest to the Respondent herein at the rate of 20% per month against the Appellant contrary to the provisions of Order 34 Rule 4 of the Edo State High Court (Civil Procedure) Rules, 2018.
(4) Whether from the totality of evidence before the trial Court the award of N1,000,000.00 (One Million Naira) as general damages against the Appellant in favour of the Respondent without any Justification whatsoever by the trial Court is right and sustainable in law.
ARGUMENT OF ISSUES
ISSUE NO.1
It was submitted that the trial Court did not properly evaluate the evidence of the Appellant’s witness (DW4 and Exhibit ‘J6’ (Statement of Account) which showed that the Respondent personally made withdrawals on her account on the dates specified in the statement of Account to arrive at the conclusion that the Respondent herein has proved her case against the Appellant. That in addition to this fact, Exhibit ‘J6’ showed that it was not a total sum of N4,459,529.00 rather, it was the sum of N1,580,000.00 that was withdrawn from the said Respondent’s account on four different dates of 7/12/2012, 7/6/2013, 19/7/2013 and 18/12/2012 by persons who apparently were agents of the Respondent in dealing with her account. That the Respondent did not discharge the burden of proof placed on her to prove that the sum of N4,459,529.00 was withdrawn from her account held with the Appellant against the evidence of DW1 and Exhibit ‘J6’ placed before the Court. Therefore the Court was in error when it awarded the sum of N4,459,529.00 as sum unlawfully withdrawn from her account without her authority or consent. Appellant’s Counsel urged the Court to so hold and resolve the issue in favour of the Appellant. It was submitted that the trial Court did not advert its mind to evidence as contained in Exhibit ‘J6’ that the Honourable Court erroneously took the cash deposits totally N2,470.00 into the Respondent’s account as withdrawals instead of deposits.
ISSUE No. 2.
It is whether the trial Court did not misdirect itself when it awarded pre-Judgment interest to the Respondent at the rate of 9.25% per month as against the 9.25% per annum as expressed and agreed to by the parties on Exhibit ‘G2’ and also against all known prevailing interest rate as directed and regulated by the Central Bank of Nigeria.
Counsel submitted that the parties wrongly entered into a contract of banker/customer relationship. That the terms and conditions were stipulated as 9.25% interest payable on the deposits of the Respondents held by the Appellant.
That it is not in the place of a party to an agreement to vary the terms of the agreement unilaterally to be aided and supported by the Court.
That in the instant case, the parties agreed as Exhibit ‘G2’ the interest of 9.2% per annum as against the award of 9.25% monthly by the Court. Submitted that the Court lacked the power to add to or subtract from the terms of contract of the parties. Further, the parties thereto are not allowed to unilaterally alter them. Referred to the cases of Golden Construction Coy. Ltd V. State Coy. Nig. Ltd (2014) 8 NWLR (Pt. 1408) 171; Best (Nig) Ltd. V. B.H. (Nig.) Ltd (2011) 5 NWLR (Pt. 1239) 95.
That the Court must treat as sacrosanct the terms of an agreement freely entered into by the parties that it is not the business of the Court to rewrite a contract for the parties citing the case of BFI Group V. BPE (2012) 18 NWLR (Pt. 1332) 209.
That in the present case, Exhibit ‘G2’ provides that the interest rate on the deposit shall be 9.25% per annum. Appellant urged the Court to resolve the second issue in favour of the Appellant.
ISSUE No. 3
It is whether the trial Court had jurisdiction to award post Judgment interest to the Respondent at the rate of 20% per month against the Appellant contrary to the provision of Order 34 Rule 4 of the Edo State High Court (Civil Procedure) Rules 2018. It was submitted that the trial Court erred in law and misdirected itself in the award of post Judgment rate of 20% per month in clear violation of the Rules of Court since it had no jurisdiction to do so. He referred to the case of Hausa V. F.B.N. Plc (2000) 9 NWLR (Pt. 671) 64 at 65.
That the trial Court acted contrary to the provisions of Order 34 Rule 4 of the Rules of the lower Court. Referred to the cases of Ekwunife V. Wayne (W.A) Ltd (1989) 5 NWLR (Pt. 122) 422; Himma Merchants Ltd V. Aliyu (1994) 5 NWLR (Pt. 347) 667.
It was submitted that by the clear departure from the Rules of Court by the award of 20% per month to the Respondent by the trial Court, the trial Court had acted outside its jurisdiction. Urged the Court to resolve the third issue in favour of the Respondent.
ISSUE NO. 4
Brings out the question whether from the totality of the evidence of the trial Court, the award of N1,000,000.00 (One Million) as general damages against the Appellant in favour of the Respondent without any justification whatsoever by the trial Judge is right and sustainable in law.
It was submitted that damages were not awarded as a matter of course. The Court must put into consideration certain conditions on the award of damages whether general or special damages. Cited the case of Adekunle V. Rock-View Hotels Ltd (2004) 1 NWLR (Pt. 853) 161 at 166.
It was submitted that the award of N1,000,000 was excessive having regard to the entire circumstances of the case.
Counsel invited the Court to overturn the Judgment of the lower Court.
RESPONDENT’S BRIEF
In her Brief of Argument, the Respondent adopted the four issues formulated by the Appellant in its Brief of Argument.
The first issue is whether the learned trial Judge was in error when it held that the Respondent was able to prove that “Gloria Ogbeide/Bakare, an erstwhile staff of the Appellant and other persons” colluded to unlawfully withdraw various sums of money from the Respondent’s account held with the Appellant which amounts to the sum of N4,459,000 without the consent and the authority of the Respondent.
It was submitted that from the pleading and the evidence placed before the Court, the Respondent maintained a fixed deposit account No. 0036841689 with the Appellant and on 2/3/2012 fixed the amount of N1.2 million into the account at the interest rate of 9.25% per month for a period of 180 days as evidenced by Exhibit ‘G2’ at page 129 H of the Record. That Exhibit ‘G2’ contained the amount that was fixed, the interest rate of 9.25% per month for 180 days which will be repayable on the 3rd of August 2012 with a condition for further renewal or withdrawal as the case may be.
It was submitted that more money were lodged into the account as revealed by Exhibits ‘G3’ to ‘G8’ to attract more. It was also submitted that a person who was not a party to the account could not withdraw money or operate the account. In other words, Glory Ogbeide/Bakare, Odion, Blessing, Anabel E, Ososo Omogbare were not parties to the fixed deposit account between the Respondent and Appellant.
It was the Respondent’s contention that for a party to prove that an account had been debited by a bank and/or to prove that the bank and its agents and cohorts withdraw monies from the customer’s account without the consent and the authority of the customer, the customer must prove that assertion by the statement of account which is binding on the bank.
It was submitted that Exhibit ‘J6’ the statement of account show that on 2/3/2012 the Appellant transferred the sum of N1.2 Million from the Respondent’s account to another account and closed the account without the consent and authority of the Respondent as demonstrated by the evidence of the Appellant Cross-examination on page 129 G of the Records. That on 28/6/2012, 30/7/2012, 2/8/2012, 4/9/2012, 7/12/2012, 18/12/2012, 22/5/2013, 7/6/2013 and 19/7/2013 various sums of money were either transferred or withdrawn from the Respondent by Gloria, Blessing, Anable, Ososo Omogbare and Ogbeide without the consent or authority of the Respondent. This, it was submitted was a breach of the agreement entered into by the Respondent and the Appellant.
It was submitted that the Respondent pleaded and gave evidence of withdrawal of funds from her account by persons who were not parties to the relationship between the Appellant and Respondent. That the Appellant’s witness also gave evidence of these withdrawals and transfers under Cross-examinations.
It was argued that the evaluation of documents is not within the exclusive preserve of the trial Court. Accordingly, the trial Court and the Appellate Court have equal rights in evaluation of documentary evidence provided.
It was submitted that Exhibit ‘J6’ was not tendered in relation as to whether Anabel E, Gloria Ogbeide, Olu etc paid money into the Respondent fixed deposit account as no evidence nor pleading was predicated on same at the trial Court and as such it could not form the basis of this appeal without the requisite leave of Court as a fresh issue in the appeal.
The second issue is whether the learned trial Judge was in error when he awarded the interest of 9.25% per annum as agreed by the parties by Exhibit ‘G2’ without making reference to the interest rate regulated by the Central Bank of Nigeria that was not contemplated by the parties in the agreement and in the lower Court.
It was submitted that the general rule at common law was that interest was not payable on a debt or loan in the absence of express agreement or some cause of dealings or custom to that effect. That interest will be paid where there is express agreement to that effect and such agreement may be inferred from the cause of dealings between the parties. Reliance was placed on the case Diamond Bank Ltd V. PIC Ltd (2009) 18 NWLR (Pt. 1172) 67 at 96-97.
It was argued that in this case, the Respondent pleaded Exhibit ‘G2’ the agreement between the Appellant and the Respondent in relation to the account and led evidence that both parties agreed at the interest of 9.25% per month by Exhibit ‘G2’ the sum of N1.2 Million was at the rate of 9.25% interest per month for 180 days.
Counsel referred to the case of GTB PLC V. Noble (2019) 14 NWLR (Pt. 1693) 389 at 417-418 where the Court held that the claim for pre Judgment interest may be made by the Plaintiff as of right where:
(a) It is expressly provided for in or contemplated by the agreement between the parties
(b) It is claimed under a Merchandise custom
(c) It is claimed under a principle of equity such as breach of fiduciary relationship.
That in this case, the Appellant and the Respondent agreed on the interest rate of 9.25% per month for 180 days (Six months) in Exhibit ‘G2’ on 2/3/2012 to lapse on 3/8/2012 if there was no renewal that Exhibit ‘G’ expressed 180 days (6 months) not annual and as such the Appellant is estopped from denying the stipulation of Exhibit ‘G2’.
It was also argued that the Appellant was also in breach of the fiduciary relationship entered into by the parties by allowing Gloria Ogbeide and others to withdraw money from the account and also by allowing withdrawal from the account without the mandate of the account holder.
On the whole, it was submitted that the learned trial Judge was right when he awarded pre-Judgment interest against the Appellant pursuant to the evidence led on pleaded facts which was also claimed. He urged the Court to resolve the issue in favour of the Respondent.
The third issue is whether the learned trial Judge has jurisdiction to award relief claimed and proved by the Respondent.
It was submitted that the grant of post Judgment interest was at the discretion of the Court referring to the case of Unity Bank V. Denclag (2012) 18 NWLR (Pt. 1332) 283.
That Order 34 Rule 4 of the Edo State High Court (Civil Procedure) Rules was not couched in mandatory terms. Therefore the Court has the unfettered discretion to award the post Judgment interest as prayed by the party. However, a Court cannot grant a relief more than what was claimed by the parties as the action. Referred to Pantazis V. Pantazis (2018) 17 NWLR (Pt. 1649) 499 at 507 – 508.
It was argued that a Court was not prohibited from granting a relief claimed by a party except where the requirement of grant was not met by the party who sought the relief. That the requirement of grant of post Judgment interest was duly demonstrated before the trial Court to grant the reliefs as required by law by urging the Court to grant the Respondent’s reliefs. Therefore the Court was right when it granted the reliefs duly claimed by the parties without going above the relief claimed. Counsel urged the Court to resolve the issue in favour of the Respondent.
ISSUE NO. 4 is whether from the totality of evidence before the trial Court, the award of N1,000,000.00 (One Million Naira) only as general damages against the Appellant in favour of the Respondent by the trial Judge is justifiable, right and sustainable in law.
It was submitted that general damages were damages at large in that there was no strict rule regulating it. That it is the duty of the trial Court to assess general damages. He relied on the case S.B.N. PLC V. CBN (2009) 6 NWLR (Pt. 1137) 237 at 309.
Counsel referred to the withdrawals and transfer from the fixed deposit account of the Respondent without her consent and authority. The Respondent also suffered untold hardship when she was denied the benefit of her money lodged in the Appellant’s bank.
Counsel urged the Court to resolve the fourth issue in favour of the Respondent.
On the whole, Counsel urged the Court to dismiss the appeal for lacking in merit and affirm the Judgment of the trial Court.
Having considered the issues formulated by the Appellant and adopted by the Respondent, the issues are equally adopted by this Court for its consideration and resolution. However, the issues are modified as follows:
1. Whether the learned trial Judge was right when it held that the claimant had been able to prove that Gloria Ogbeide/Bakare, an erstwhile staff of the Defendant and other persons collude to withdraw various sums of money from the Claimant Account held with the Defendant which amounts to the sum of N4,459,529.00 without the consent and authority of the Claimant.
2. Whether the trial Court was right when it awarded the Pre-Judgment interest to the Respondent at the rate of 9.25% per month as against the 9.25% per annum as expressed by the parties in Exhibit ‘G2’ and also against all known prevailing interest rate as directed and regulated by the Central Bank of Nigeria.
3. Whether the trial Court had jurisdiction or power to award post Judgment interest to the Respondent at the rate of 20% per month against the Appellant contrary to the provisions of Order 34 Rule 4 of the Edo State High Court (Civil Procedure) Rules 2018.
4. Whether from the evidence placed before the lower Court the award of the sum of N1,000,000.00 (One Million Naira) as general damages against the Appellant and in favour of the Respondent is justified and sustainable.
RESOLUTION OF ISSUES:
ISSUE 1, invoke the question whether it was proved by the Respondent that Gloria Ogbeide/Bakare a former staff of the Appellant and some others colluded to withdraw various sums of money from the Respondent’s Account with the Defendant which amount to the sum of N4,459,529 Million Naira without the consent and authority of the Respondent.
It was the contention of the Appellant – Union Bank PLC that there was no transfer or withdrawal by one Gloria Ogbeide also called Gloria Bakare and also there was no withdrawal by others from the fixed deposit account kept by the Respondent with the Appellant neither was any amount transferred to them unlawfully or without the consent and authority of the Respondent. That the deposits made to the account of the Respondent which were mistakenly taken to be transfers and withdrawals by the Respondent and the lower Court.
To determine whether there were withdrawals and transfers from the account of the Respondent without her consent mandate and authority, recourse and resort shall be had to the pleading and the evidence of the Respondent and in particular Exhibit ‘J6’ the statement of account of the saving fixed deposit account of the Respondent issued by the Appellant – the Bank where the Respondent had the fixed deposit account No. 0036841689 opened on 1/3/2012. The Claimant (Respondent) pleaded in paragraph 1 of her Amended Reply to Defendant statement of Defence that “She never withdrew money from her account on 2/3/2012 that the withdrawal of money from the account was done by Gloria Bakare also known as Gloria Ogbeide an agent or staff of the Defendant (Appellant) during the period under reference in which the money was severally withdrawn from the Claimant account”.
The Respondent also testified along this line in her further Additional Written Statement on Oath adopted as her evidence at the lower Court. In support of the Respondent’s pleading and evidence in Court is the evidence of the DW1 – Samuel Otaigbe who testified for the Appellant (Defendant), Union Bank. His evidence under Cross-examination buttressed the Respondent’s pleading and evidence. The DW1’s evidence under Cross-examination on pages 129H of the Record is reproduced in extenso as follows:
“The Claimant’s account is not a current account. It is true the use of cheques is not allowed in the Claimant’s account with the Defendant. It is true that it is only the Claimant that can physically come to the Defendant Bank and make withdrawal of any sum of money. It is true that Gloria Ogbeide or Bakare is not a party to the relationship between the Defendant and the Claimant as well as Blessing and Odion. They are not staff of the Defendant as well as Ainabe E., one Ososo Omogba is also not a party and not a staff of the Defendant. It is true that these persons whose names appeared in Exhibit ‘J6’ withdrew various sums of money from the Claimant’s account. There are no tellers to show the transaction that took place on 19/7/2013 on Exhibits J1-J5. I do not also have the tellers for the transactions of 7/6/2013, 10/1/14, 13/2/14, 6/6/14, 20/8/2014, 5/9/14, 16/10/2014, 27/7/15. It is true that on the 27/7/15, the Claimant withdrew money from the account at the Defendant’s Abuja Branch (N47,000). She personally went to the Bank to withdraw money from the Account. The Defendant has a device that shows the customer who comes to withdraw money from the Account. It shows the photograph of the person. The device is in the Airport Road Branch of the Defendant. I don’t have the photograph of the persons who withdrew money from the Claimant’s account of the Defendant’s Airport Road Branch Benin City. The Claimant withdrawal at Abuja Branch was duly signed by the Claimant. I have seen the Claimant come to Airport Road Branch to withdraw money. Money is normally withdrawn from the counter.”
It is apparent from the above that it was only the Respondent who could make withdrawals from the account by coming to the Bank physically to make the withdrawals. It is also revealing from the above, that Gloria Ogbeide or Bakare, Blessing Odion, Ainabe-E, Ososo Omogbare were not staff of the Bank and were not party to the relationship between the Defendant and the Claimant (Appellant and Respondent). It is equally apparent that these persons mentioned above who are not staff of the Bank made withdrawals from the Claimant’s (Respondent) account which names appeared on Exhibit ‘J6’ (statement of account) issued by the Bank.
The above evidence was elicited under Cross-examination of the DW1.
It is trite that evidence elicited under Cross-examination of a defence witness which is in line with the facts pleaded by the Claimant forms a part of the evidence produced by the Claimant in support of the facts pleaded in the statement of claim and can be relied upon in proof of the facts in dispute between the parties. See Adeosun V. Governor of Ekiti State (2012) 4 NWLR (Pt. 1291) 581 at 600.
Exhibit ‘J6’ is the statement of account issued by the Appellant (Bank) in relation to the transactions in the account of the Respondent. A meticulous perusal and scrutiny of the document reveal the following transfers and withdrawals viz-a-viz the pleading and the evidence of the Respondent and the evidence of the DW1 under Cross-examination.
Exhibit ‘J6’ (Statement of Account) reveals the following:
On 2/3/2017, the sum of N1.2 Million was transferred from the account to unknown account. The account of the Respondent was debited.
On 28/6/2012 the sum of N550,000 was transferred from the account. The Respondent’s account was debited.
On 30/7/2012 the sum of N550,000 was transferred from the account. The account was equally debited.
On 2/8/2012, the sum of N450,000 was transferred from the account. The account was debited.
On 4/9/2012, the sum of N450,000 was withdrawn from the account. The account was debited.
On 7/12/2012, the sum of N250,000 was transferred from the account. The account was debited.
On 7/12/2012, the sum of N200,000.00 was given to Gloria.
On 18/12/2012, there was a cash withdrawal of the sum of N300,000.00 by one Blessing. The account was debited.
On 22/5/2013, there was a transfer of the sum of One Million, Three Hundred Thousand Naira (N1.3 Million) from the account to one Anabel-E. the account was credited.
On 7/6/2013, there was a cash withdrawal of the sum of N600,000 by one Osose Omogbere. The account was debited.
On 19/7/2013, there was cash withdrawal by Ogbeide G. in the sum of N480,000.00. The account was debited.
The above were the various transfers and withdrawals which evidence was given by the Respondent, corroborated by the evidence of the DW1 under Cross-examination and highlighted in Exhibit ‘J2’ Statement of Account issued by the Appellant (Union Bank). It is evidentially clear that these transfers were made without the consent and authority of the Respondent. It was against the mandate of the Respondent.
Looking at the records, there was no teller in respect of the withdrawals made by Gloria, Ainabel, Blessing, Osose Omogbera and Ogbeide G. This indicates collusion between the Appellant (Union Bank) and the above named persons in respect of these withdrawals. The transfers were made to unknown accounts and the fixed Deposit Account of the Respondent was depleted and debited with the unauthorized transfers and withdrawals. The DW1 testified under Cross-examination that
“The Claimant’s account is not a current account and the use of cheques is not allowed with the account with the Defendant. That it is only the Claimant that can physically come to the Bank to make withdrawals of sum of money. That Blessing, Odion, Gloria Ogbeide and Ainabel E. whose names appeared in Exhibit ‘J6’ withdrew various sums of money from the Claimant’s account.”
It is therefore clear that strangers to the account and contract between the Claimant (Respondent) and the Defendant (Appellant) were allowed to illegally withdraw money from the Respondent’s (Claimant) account in breach of the agreement between the two parties.
By reason of the above, this Court is inclined to align itself with the decision of the trial to the effect that:
“The Claimant had been able to prove that Gloria Ogbeide a staff of the Defendant and other persons colluded to unlawfully withdraw various sums of money from her account held with the Defendant which amounted to the sum N4,234,000.00 without the consent and authority of the Defendant.”
It need be asserted that a banker must exercise reasonable care and skill in executing a customer’s instruction in his banking business. The banker has a duty to protect the interest and money of the customer. This, the Appellant failed to do in this case. The learned trial Judge rightly held that the Appellant had the duty of care of protecting the Claimant’s money from being frittered or stolen by its fraudulent staff and other persons which duty it breached in this case.
I do agree with the submission of the Respondent’s Counsel to the effect that the act of the Appellant in transferring monies from the Respondent’s account to another account without the consent and the authority of the Respondent and also allowing Gloria, Blessing, Osose, Ogbeide, Ainabel to withdraw money from the Respondent’s account amount to breach of the agreement entered into by the Respondent with the Appellant.
Without doubt, the lower Court has properly evaluated the evidence placed before it both oral and documentary and made the necessary findings which this Court will not disturb.
In all, Exhibit ‘J6’ reveals that the sum of N4,300,000.00 was removed from the Respondent’s fixed deposit account without the mandate, consent and authority of the Respondent, as established by the evidence of the Respondent, DW1 and Exhibit ‘J6’.
Arising from the foregoing, the 1st issue is resolved in favour of the Respondent.
Issue No.2 is whether the learned trial Judge was right when it awarded pre-Judgment interest to the Respondent at the rate of 9.25% per month as against the 9.25% per annum as expressed and agreed to by the parties. It was submitted by the Appellant the parties agreed to 9.25% per annum in Exhibit ‘G2’ as against 9.25% per month interest by the Court.
The question is what was the pre-Judgment interest rate agreed to by the parties?
Both parties agreed that Exhibit ‘G2’ defined the percentage applicable to the pre-Judgment interest rate accruable to the fixed deposit. Exhibit ‘G2’ is a Deposit Receipt of Union Bank of Nigeria PLC. It serves as a receipt of the sum of N1,200,000.00 (One Million, Two Hundred Thousand Naira) only from Isuku Francisca, the Respondent being a fixed deposit for 180 days taking effect from 02/03/2012 and lapsing on 03/08/2012. The fixed interest attracts 9.25% interest rate per annum. The interest rate per annum was not reflected by the Respondent. In effect whatever interest that was accruable to the fixed deposit had to be calculated on the basis and rate of 9.25% per annum for the six months (180 days). This is the fixed pre-Judgment rate; agreeable to both parties. An express agreement between the Appellant and the Respondent. This is contractual. The interest is at the rate of 9.25% per annum not per month. The lower Court could not and should not have granted the interest as the rate of 9.25% per month. Parties have agreed on the interest rate to be awarded. The Court cannot derogate from it. The Court cannot alter rate of interest when there is a written agreement on same. Adekeye JSC in Union Bank of Nigeria PLC V. Alhaji Adams Ajabule 49 NSCQR (Pt. 3) 1448 at 1487 held that where the terms of the agreement between the Bank and the customer are clear with regards to the agreed rate of interest and there is no provision for variation, the Bank cannot vary the agreed rate of interest. I will like to extend this to the Court. That is, the Court cannot vary the rate of interest which the customer and the Bank gave expressly agreed on. The Court lacks the power to add to or subtract from the terms of contract of parties and by the same token parties thereto are not allowed to unilaterally alter them. It is not the business of the Court to rewrite a contract for the parties. See BFI Group Incorp. V. BPE (2012) 18 NWLR (Pt. 1332) 209.
I am therefore in agreement with the submission of the Appellant’s Counsel that the lower Court erred when it awarded pre Judgment interest to the Respondent at the rate of 9.25% per month as against the 9.25% per annum as expressly agreed to and contained in Exhibit ‘G2’ the Deposit Receipt issued by the Appellant to the Respondent in respect of the sum of N2.2 Million fixed on 2/3/2012 for 180 days lapsing on 03/08/2012.
Issue No. 2 is hereby resolved in favour of the Appellant and against the Respondent. The appropriate pre-Judgment interest that should be awarded in the circumstance is 9.25% interest rate per annum.
I now proceed to consider issue No. 3 which is whether the trial Court has jurisdiction to award post Judgment interest to the Respondent at the rate of 20% per month against the Appellant contrary to the provisions of Order 34 Rule 4 of the Edo State High Court (Civil Procedure) Rules, 2018. It was submitted that the trial Court erred in law and misdirected itself in the award of post Judgment interest at the rate of 20% per month in clear violation of the rules of the Court. Counsel referred to Order 34 Rule 4 of the Rules of the lower Court which makes provision to the effect that the Judge may order interest at a rate not more than 20% per annum to be paid up on any Judgment.
In other words, while the Court below awarded an interest at the rate of 20% per month, the rules provides for 20% per annum. Without doubt, the lower Court is clothed with the jurisdiction to award post Judgment interest rate, however the power to award must be within the ambit of the parameters for the award of the post Judgment interest rate. The Order 34 Rule 4 of the Edo State High Court stipulates 20% interest per annum, not 20% interest per month. The lower Court was therefore not on the right track when it awarded the post – Judgment interest rate for the Respondent at 20% per month instead of 20% per annum. Undoubtedly the lower Court went out of the clear provision of the Rules to award post Judgment rate of 20% per month as opposed to the provision of 20% per annum. This settles the 3rd issue in favour of the Appellant.
The 4th issue is whether the award of N1 Million general damages in favour of the Appellant by the trial Court is justified. It was the submission of the Respondent’s Counsel that the award of N1 Million was excessive having regard to the circumstances of the case. That the injury allegedly suffered by the Respondent that made the trial Judge to award the amount did not warrant the award of such an amount. The Respondent in response, submitted that the acts of the Appellant in colluding or permitting person who were not parties to the contractual relationship between the Appellant and the Respondent to withdraw various sums of money from the fixed deposit account makes the Appellant liable to pay damages.
The issue here is not whether the Respondent is entitled to the award of general damages or not but whether the amount awarded is excessive or not.
The object of the award of damages is to give compensation to the Plaintiff for the damages, loss of injury which he has suffered. The damages must be attributable to the breach of some duty by the Defendant. See Union Bank PLC V. Chimaeze (2014) 9 NWLR (Pt. 1411) 166 at 191 – 192.
It need be asserted that general damages need not be pleaded. It arises from inference of law and need not be proved by evidence. It suffices once generally averred in the pleadings. They are presumed by law to be the direct and probable consequence of the Defendant complained of. Unlike special damages, general damages is generally incapable of exact calculation. See Union Bank V. Chimaeze (supra) at 192-193. In other words, general damages flows naturally from the success of a case. Unlike special damages which must be pleaded specially and strictly proved, the award of general damages is determined by what is reasonable in the circumstance of the case. Eneh V. Ozor (2016) 16 NWLR (Pt. 1538) 219 at 238.
I have considered the submission of the parties for and against the amount of general damages awarded in this case. There is no doubt the Respondent is entitled to the award of general damages. I have also considered the background and circumstances leading to the institution of the action at the lower Court. I also take into consideration the injury suffered by the Respondent consequent upon the infraction of the contractual relationship, occasioned by the loss and unauthorized transfers and withdrawals made in the fixed deposit account of the Respondent kept with the Appellant. The amount of general damages awarded in respect of the sum of N1,000,000.00 by the lower Court is therefore not excessive. This Court will not tinker with or vary this sum.
Consequently, the fourth issue is resolved in favour of the Respondent and against the Appellant.
In summary, issues No.1 is resolved fully in favour of the Respondent. Issue No. 4 is also resolved fully in favour of the Respondent. Issues 2 and 3 are resolved partly in favour of the Appellant to the extent of pre Judgment interest rate and the post Judgment interest rate.
In the final analysis, this appeal succeeds in part. The Judgment of the lower Court is affirmed subject to the modifications in respect of the pre and post Judgment interest rates. The Judgment entered by the lower Court in favour of the Respondent against the Appellant is hereby modified as follows:
1. The sum of Four Million, Three Thousand Naira (N4,300,000).
2. Interest on the sum of N4,300,000 (Four Million, Three Hundred Thousand Naira only) at the rate of 9.25% per annum from 1st of March 2012 till date.
3. Interest at the rate of 20% per annum from Judgment till the satisfaction of same.
4. The sum of One Million Naira (N1,000,000.00) as general damages.
5. Cost which is assessed and fixed at N50,000 (Fifty Thousand Naira only).
Parties shall bear their respective costs in respect of this appeal.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the opportunity of reading in draft, the judgment just delivered by my learned brother SAMUEL ADEMOLA BOLA, JCA. The appeal as carefully considered in the lead judgment succeeds in part. To the extent of the success of the appeal as well set out in the lead judgment, I affirm the decision of the High Court of Edo State delivered on 17th January, 2019 in Suit No. B/462/2016.
I abide by the consequential orders and order as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA. I adopt the reasoning and conclusion as mine.
Consequently, issues 1 and 4 are resolved in favour of the respondent, while issues 2 and 3 are resolved in favour of the appellant. The appeal therefore succeeds in part and is dismissed in part.
I abide by the consequential orders made in the lead judgment.
Appearances:
Idemudia Ilueminosen, Esq. For Appellant(s)
Sylvester Ogbe, Esq. For Respondent(s)