UBN PLC v. OBAJINMI
(2022)LCN/16539(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/IB/177/2019
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
UNION BANK OF NIGERIA PLC APPELANT(S)
And
DR. MOSES ABAYOMI OBAJINMI RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A PARTY COCMPLAINS THAT EVIDENCE WAS NOT PROPERLY EVALUATED
The settled position of the law is that where a party complains that evidence was not properly evaluated, he is duty bound to identify the piece of evidence not evaluated and to go further to show how, if it were evaluated as contended, the result would have been different, see the case of ATUYEYE & ORS V. ASHAMU (1987) LPELR-638(SC) and AKANMODE & ANOR V. DINO & ORS (2008) LPELR-8405(CA) wherein the Court held thusly:
“The duty is on the Appellants who raised the issue of improper assessment/evaluation of evidence to identify or specify the evidence not properly assessed/evaluated and to show that if the error complained of had been corrected the conclusion would have been different and in their favour. See: THE STATE V. BAKO YUSUF & ANOR [2007] All FWLR (Pt.377) 1001 at 1010-1011.” Per LOKULO-SODIPE, J.C.A. PER NIMPAR, J.C.A.
THE DUTY OF THE TRIAL COURT IN EVALUTAING EVIDENCE PRESENTED BY PARTIES BEFORE IT
Evaluation is generally described as belonging to the province of the trial Judge and it is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts, see the following cases: LAFIA LOCAL GOVT V. EXECUTIVE GOVT NASARAWA STATE & ORS (2012) LPELR-20602(SC), ANYEGWU & ANOR V. ONUCHE (2009) LPELR-521(SC) and AKINBADE & ANOR V. BABATUNDE & ORS (2017) LPELR-43463 (SC). PER NIMPAR, J.C.A.
THE POSITION OF LAW ON FAILURE TO TRAVERSE AND CROSS-EXAMINE A WITNESS ON ESSENTIAL FACTS
The law is trite on failure to traverse and to also cross-examine a witness on essential facts, the party cannot question those facts again because the implication is that he accepts the statement as the truth and the Court should act on such evidence. See AWAZIE V OKOROAFOR (2015) LPELR-40210(CA) where the Court held thusly:
“It is elementary position of the law that the effect of failure to cross-examine a party or witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness or party. See the case of GAJI vs. PAYE (2003) 8 NWLR (PT. 823) 583 and several decisions of Courts on this issue; In the recent decision of the Supreme Court in CBN ORS vs. OKOJIE (2015) LPELR-24740 (SC) per RHODES-VIVOUR, JSC had this to say on the subject; “My Lords, a litigant who fails to file a statement of defence and further fails to cross-examine the adverse party, in this case the Respondent, has by his own hands shut himself out from the proceedings in which the Plaintiff/Respondent makes serious allegations, claims against him. The Defendant has abandoned any defence he might have and the Court is expected to accept the Plaintiff’s unchallenged evidence to establish the facts the Plaintiff seeks to establish.” Per OHO, J.C.A. PER NIMPAR, J.C.A.
WHETHER OR NOT FAILURE TO EVALUATE EVIDENCE, NULLIFIES A JUDGEMENT
Furthermore, failure to evaluate evidence does not nullify a judgment because the Appellate Court can perform that duty where the trial Judge whose primary duty it is to do so, failed. See the case of BELLO V. FRN (2018) LPELR-44465(SC) wherein the apex Court held that:
“This law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – See FATAI VS THE STATE (2013) 10 NWLR (pt. 1361) 1 at 21 SC.” Per BAGE, J.S.C
This is particularly so where documents form part of the evidence allegedly not evaluated as in this case, see REV. KING V. STATE (2016) LPELR-40046(SC) wherein the apex Court held thusly:
“Evaluation of evidence primarily the exclusive preserve of the trial Court except in case of documentary evidence in which the trial Court and the appellate have equal right to evaluate the evidence. See Iwuoha v. Nipost (2003) 4 SC (Pt. 11) 37. Where the trial Court failed to evaluate the evidence or to evaluate it properly or the evaluation resulted in a perverse conclusion the appellate Court would re-assess and evaluate the evidence to reach a joint conclusion – which may be different from that of the trial Court, but not necessarily so. See Okolo v. Uzoka (1978) 4 SC 77 at 86; Abusamwan v. Merchantile Bank (Nig) Ltd (No. 2) (1987) 3 WLR (Pt.60) 20.”Per NGWUTA, J.S.C.B PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Oyo State High Court sitting in Ibadan and delivered by HON. JUSTICE E. O. AJAYI on the 21st February, 2019 wherein the lower Court entered judgment in favour of the Respondent in the sum of Two Million Naira (N2,000,000.00) being damages for wrongful dishonor of the Respondent’s cheque No.00091250 dated 02-11-15. The Appellant dissatisfied with the decision, filed a Notice of Appeal dated 26th March, 2019 setting out 3 grounds of Appeal.
Facts leading to this appeal are straightforward and amenable to brief summary. The Respondent is a customer of the Appellant. During the period relevant to this appeal, there was a directive by the Central Bank of Nigeria that all Deposit Money Banks (DMBs) Customers should have their BVN (Bank Verification Number) and any customer without the BVN attached to the account would be deemed to have inadequate requirement with respect to the Know Your Customer (KYC) guidelines and the deadline for Bank Verification Number was later extended to 31st October, 2015. On the 3rd November, 2015 the Respondent issued a cheque in the sum of N50,000.00 in favour of St. John’s Church Igelin, Abeokuta through United Bank for Africa PLC, meant for payment through clearance. The Cheque could not be cleared on the grounds that the Respondent failed to verify and link his BVN which was obtained from another bank (GTB) with his account with the Appellant prior to the presentation of his cheque. Consequent upon that, the Appellant declined to honour the cheque allegedly in line with post no debit directives of the CBN.
The Respondent aggrieved by the said action initiated the suit before the Court below via a writ of Summons dated 29th February, 2016, the Respondent claimed the sum of N10,000,000.00 (Ten Million Naira) only as damages from the Appellant for its failure to honour the cheque without lawful excuse and failed to pay the beneficiary (St. John’s Church Igbein Abeokuta) of the Respondent’s cheque No. 00091250 dated 2nd November, 2015 despite having funds in excess of the said amount in his account.
The Appellant filed its statement of defence dated 31st March, 2016 and denied liability. During trial, the Appellant called a sole witness and tendered Exhibits L1 and L2 while the Respondent called 2 witnesses and tendered 11 Exhibits. Thereafter, after due consideration of the final addresses of counsel, the trial Court granted the Respondent’s claim and awarded N2 Million Naira damages. The Appellant aggrieved with the said decision brought the instant appeal.
Pursuant to the Rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the appeal. The Appellant’s brief settled by OLUYEMI OKUMODI, ESQ., is dated 14th October, 2021, filed on 15th October, 2021 but deemed on the 9th November, 2021. The Appellant distilled 4 issues for determination as follows:
1. Whether the judgment of the trial Court is not a nullity for failing to evaluate all evidence adduced as well as legal submission.
2. Is the Court below not wrong in law in relying on Exhibit D5 in awarding judgment against the Appellant despite Exhibit CH1-CH9.
3. Is the trial Court not wrong in law by awarding damages against the Appellant in the face of Exhibit L1 and L2.
4. Is the Court below not wrong in law in holding that the Respondent has proved its case despite Exhibit CH1-CH9 and L1, L2.
The Respondent’s Brief settled by O. A. ADEGOROYE, ESQ., dated 7th day of December, 2021 and filed on the same day. The Respondent formulated 2 the issues for determination as follow:
1. Whether the learned trial Judge appraised the facts of this suit and rightly found the Appellant to be negligent?
2. Whether the Respondent could rely on Exhibit L1 and L2 to repudiate the Respondent’s (sic) duty and obligation to honour Exhibit D and pay the amount of N50,000.00 (Fifty Thousand Naira) on Exhibit D despite the Respondent having funds in excess of N50,000.00 (Fifty Thousand Naira) in the Respondent’s account with the Appellant.
APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant argued that the trial Court did not evaluate the evidence placed before it by the Appellant which includes the Central Bank Circular and the cheques of the Respondent (See Exhibit CH1-CH9 and L1-L2) and failure to evaluate evidence and ascribed probative value to the evidence is a breach of right to fair hearing and that vitiates the entire proceeding of the trial Court as held in AGIP (NIG) LTD V. AGIP PETROLI INTL.
The Appellant urged the Court to resolve issue one in favour of the Appellant.
ISSUE TWO
Arguing this issue, the Appellant submits that the crux of the case is whether the Respondent has linked his BVN which he registered at the Guaranty Trust Bank with his account with the Appellant? Even though the Respondent claimed he did and his BVN was boldly written on his cheque tendered before the Court, a careful perusal of the Exhibits CH1-CH9 will show that the Respondent did not write any BVN on any of the Exhibits and there was no proof that he linked his BVN which he obtained from GT Bank with his account domiciled with the Appellant despite repetitive notice to do so via SMS and public notification before 31st October, 2015.
It was the submission of the Appellant that it is the law that when a party tenders a document in Court and such was admitted in evidence, the party is bound by the document and cannot disassociate himself from it as held in EMENIKE V. P.D.P (2010) 5 NWLR (PT. 1315) 55, therefore, the Respondent is bound by Exhibits CH1-CH9 as he claimed that he boldly wrote the BVN on them but on a facial value of the said Exhibits, none of them have the BVN of the Respondent written on it. Further on this issue, the Appellant contends that it is trite law, that the best evidence to prove the contents of a document is the production of the document itself and the burden of proof is on the party who asserts the affirmative and not the party who denies it as held in OJOH V. KAMALU (2005) 18 NWLR (PT. 958) 523 and OMISORE V. AREGBESOLA (2015) 15 NWLR (PT. 1482) 1.
Predicated on the above, the Appellant submits that Exhibit 5 cannot be of any evidential value compared to Exhibit CH1-CH9 which is indirect admission on the part of the Respondent that he failed to link his BVN with his account domiciled with the Appellant before the close of the window given by the CBN. That the trial Court relied heavily on Exhibit D5 of the Respondent simply because the Appellant failed to reply to it and termed the Appellant’s non-response to the said letter as admission, however, it is not every letter that needs response especially when it will aggravate the issue at hand as held in WEIDMANN V. WALPOLE (1891) 2 Q.B and BALISE V. F.R.N (2017) 6 NWLR (PT. 1560) 90. Continuing, the Appellant argued that the trial Court left the substantive issue of the case which is whether the Respondent linked his BVN with his account with the Appellant and focused on the non-response to the Respondent and the law is trite that where the Court leaves the main issue in controversy between parties, such a decision cannot be allowed to stand as held in OGUEBEGO V. PDP (2016) 4 NWLR (PT. 1503) 446 and OMO AGEGE V. OGHO JAFOR (2011) 3 NWLR (PT. 1234) 341.
In the light of the above, the Appellant submitted that there was no admission whatsoever by the Appellant that the Respondent linked his account with his BVN before 31st October, 2015, therefore, the Respondent has a duty to prove by evidence that he linked his account with Appellant with his BVN, however, where the Respondent failed to prove same by evidence, his case must be discountenanced and also, where oral evidence is at variance with documentary evidence as in the instant case, the oral evidence must be discredited as held in ODUNSI V. BAMGBALA (1995) 1 NWLR (PT. 374) 641 and UDO V. ESHIET (1994) 9 NWLR (PT. 363) 483.
On the same score, the Appellant contended that the Court is not allowed to choose and pick where there are contradictions in evidence of a party/witness, the totality of evidence must be evaluated as credible or not as held in KAYILI V. YILBUK & ORS LPELR-24323(SC) and EROMOSELE V. WERMER & ORS (2014) LPELR-22183 (CA). The Appellant urge the Court to resolve issue 2 in favour of the Appellant and set aside the judgment of the lower Court.
ISSUE THREE
The Appellant reproduced the definition of damages according to the Black’s Law Dictionary 9th Ed. P. 445 to submit that the principles of award of damages is anchored on breach of reasonable care as held in HADLEY V. BXENDALE (1854) 9 EX. 354, MOBIL OIL NIG LTD V. AKINFOSILE (1969) 1 NMLR 227, ASHUBIOJO V. A.C.B. LTD (1966) 2 ALL NLR 203 and OYEWOLE V. STANDARD BANK OF WEST AFRICA LTD (1968) 2 ALL NLR 32 and submit that the trial Judge violated all legal principles of awarding damages because from the facts of the case, it is clear that the Appellant was following the directives of the Central Bank and the Respondent wanted the Appellant to honour the cheque contrary to instructions from the Central Bank upon which the Appellant will incur sanction, the Appellant’s counsel argued that even though the Respondent’s cheques (Exhibits CH1-CH9) were acted upon by the Appellant, it is not because he linked his BVN with his account but there were issues during the window period that avail the Appellant a valid platform for it to honour the Respondent’s cheques. Continuing, the Appellant argued that the sum of N2,000,000.00 awarded by the trial Court against the Appellant cannot stand because it will be allowing a party to benefit from his wrongdoing. The Appellant relied on UBA V. ALH ABDULFATAI SALMAN (2019) 2 NWLR (PT. 1656).
Furthermore, the Appellant submits that all factors that would enable a Court to award general damages are absent in this instance because the Appellant did not negligently, illegally, willfully or wrongful dishonoured the Respondent’s cheque. That the cheque was dishonoured even though he had sufficient fund, it was not legally available. The Appellant urge the Court to resolve this issue in favour of the Appellant.
ISSUE FOUR
The Appellant submits that the case of the Respondent is that the Appellant acted negligently in handling his account which led to his embarrassment, however, in proving this allegation, the Respondent must prove the duty of care owed to him by the Appellant, how the duty was breached and damages he suffered as a result of the breach. The Appellant relied on BUTTERFIELD V. FORESTER (1809) 11 EAST 60 to support this submission. The Appellant argued that it was not under any duty of care because the Appellant did all that was necessary to prevent the cause of action from occurring and tried hard in educating and sensitizing the Respondent via SMS and other publications of the importance of BVN and its implication. The Appellant restated the principle of standard of proof in civil cases as provided in Section 134 of the Evidence Act, 2011 and the case of MOGAJI & ORS V. ODOFIN & ORS (1978) 3 SC 91 AT 95 and DAKOLO V. REWANE DAKOLO (2011) LPELR-915 (SC).
According to the Appellant, the Respondent failed to prove his case such as to entitle him to judgment. That in a claim for Negligence, the Respondent did not show the damages he suffered as a result of that breach and the evidence of the Respondent was not preponderate as compared to the evidence of the Appellant, therefore, the judgment of the trial Court is standing on faulty pillars and cannot stand. The Appellant cited ISHOLA V. UBN LTD (2005) 3 SCM 111 and C.A.P. PLC V. VITAL INV. LTD (2006) 6 NLR (PT. 976).
The Appellant submits that the decision of trial Court is perverse because it ignored the facts or evidence which occasioned miscarriage of justice, hence, the Appellate Court is bound to interfere with such a decision as held in ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY (2015) 8 NWLR (PT. 1461) 314, therefore, the trial Judge was wrong not to ascribe probative value or evaluate Exhibit L1-L2 because Exhibits CH1-CH9 has disproved the Respondent’s claim that he has linked his BVN to his account with the Appellant before 31st day of October 2015.
The Appellant urged the Court to resolve this issue in favour of the Appellant, set aside the judgment of the trial Court and allow this appeal.
RESPONDENT’S SUBMISSION
ISSUE ONE
In arguing this issue, the Respondent submits that the trial Court in this case appraised the facts and evidence presented before it by parties and delivered judgment in favour of the Respondent. The Respondent referred the Court to ANYANWU & ORS V. UZOWUAKA & ORS (2009) LPELR-515 (SC). The Respondent contends that he gave evidence that he did his BVN at the Guaranty Trust Bank and thereafter linked up his BVN with the Appellant prior to October, 31st deadline contained in Exhibit L2 which was not controverted by the Appellant and in law, once a piece of evidence was not controverted by the opposite Counsel the Court can rely and act on it as held in TANKO V. ECHENDU (2010) LPELR-3135 (SC) AND INTERDRILL (NIG) LTD & ANOR V. UBA PLC (2017) LPELR-41907(SC). Continuing, the Respondent submits that the Appellant alleged that Exhibits CH1-CH9 did not contain any BVN written on them, however, Exhibit D1 which was issued by the Respondent and which was dishonoured by the Appellant had the Respondent’s BVN boldly written on it and the trial Judge appraised the evidence led by the parties at the trial and found the Appellant negligent in its management of the Respondent’s account. The Respondent relied on ADEOSUN V. GOVERNOR OF EKITI STATE (2012) 4 NWLR (PT. 1289) 581 and M.T.N V. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR-47042 (SC).
According to the Respondent, the Appellant placed heavy reliance on Exhibit L1 and L2 which are Central Bank of Nigeria directives to commercial banks in Nigeria and it is to justify why the Appellant failed to honour the cheque, however, this could negate the fact that the Appellant failed to take all necessary steps to ensure that the Respondent’s BVN was linked to his account even when it was boldly written on the cheque and the Appellant also failed to show the trial Court that after 3rd November, 2015, the Respondent came to the Appellant to link his BVN to his account before the Appellant honoured the payments made and reflected in Exhibit D2 of the Respondent’s statement of account, therefore, based on these facts and evidence the trial Judge raised questions and came to the conclusion that the Appellant was negligent in handling the Respondent’s account.
In light of the foregoing, the Respondent submits that the Appellant’s argument that it was not negligent in its duty to the Respondent is wrong. That based on the facts and evidence before the trial Judge, it was so convincing that the Appellant breached its duty of care to the Respondent therefore, the award of damages.
Continuing, the Respondent submits that the trial Judge who had the advantage of seeing the witnesses in this suit performed his duty of evaluating evidence and ascribed probative value to the evidence and arrived at the conclusion that the Appellant was negligent in handling the Respondent’s account. The Respondent cited DAGACI OF DERE & ORS V. DAGACI OF EBWA & ORS (2006) LPELR-911 (SC) and ONYERO & ANOR V. NWADIKE (2011) LPELR-8147 (SC).
The Respondent urged the Court to resolve issue one in favour of the Respondent as against the Appellant.
ISSUE TWO
The Respondent submits that the Appellant had been negligent in the management of his account which climaxed with its refusal to honour Exhibit D1, the cheque dated 2nd November, 2015 issued in favour of his Church, despite having funds in his account well in excess of the value of the cheque. The Appellant contended that its failure to pay the amount on Exhibit D1 was the Respondent’s failure to link his BVN with the Appellant and that upon seeing the Respondent’s BVN on Exhibit D1, its officials did all they could to link up but they could not and coupled with the Central Bank directive to all banks, the cheque marked not valid for clearing/electronic payment.
The Respondent argued that the relationship between a bank and its customer is contractual as held in BANK OF THE NORTH LTD V. YAU (2001) LPELR-746 (SC), DIAMOND BANK LTD V. UGOCHUKWU (2007) LPELR-8093(CA) and YESUFU V. AFRICAN CONTINENTAL BANK LTD (1981) LPELR-3524(SC) and no explanation regarding dishonouring Exhibit D1 could explain away the breach of its duty to the Respondent, therefore, the bank is liable when it wrongfully dishonoured a request where the customer has at the time of making the request sufficient funds to accommodate the sum stated on the cheque. The Respondent relied on FIRST AFRICAN TRUST BANK LTD V. PARTNERSHIP INVESTMENT COMPANY LTD (2003) LPELR-1280 (SC) and U.B.N V. CHIMAEZE (2014) LPELR-22699(SC).
The Respondent urge the Court to hold that the Appellant cannot rely on Exhibit L1 and L2 as an excuse to repudiate the duty owed the Respondent in dishonouring the payment on Exhibit D1 since there was uncontroverted evidence that the Respondent had sufficient fund, well in excess of the sum of N50,000.00 (Fifty Thousand Naira) on Exhibit D1 and also urge the Court to resolve issue two in favour of the Respondent against the Appellant.
In concluding, the Respondent urge the Court to dismiss this appeal and affirm the judgment of the lower Court.
RESOLUTION
After a careful consideration of the Notice of Appeal, the record of Appeal transmitted on the 6th May 2019 and the briefs of Counsel on both sides, the Appellant’s brief donated 4 issues for determination while the Respondent distilled 2 issues which can be subsumed in the 4 issues formulated by the Appellant. The appeal is at the instance of the Appellant and therefore, adopting the issues it formulated would allow for complete resolution of all areas of complaint as reflected in the Notice of Appeal. It shall be resolved seamlessly in view of issues challenging evaluation of evidence.
The settled position of the law is that where a party complains that evidence was not properly evaluated, he is duty bound to identify the piece of evidence not evaluated and to go further to show how, if it were evaluated as contended, the result would have been different, see the case of ATUYEYE & ORS V. ASHAMU (1987) LPELR-638(SC) and AKANMODE & ANOR V. DINO & ORS (2008) LPELR-8405(CA) wherein the Court held thusly:
“The duty is on the Appellants who raised the issue of improper assessment/evaluation of evidence to identify or specify the evidence not properly assessed/evaluated and to show that if the error complained of had been corrected the conclusion would have been different and in their favour. See: THE STATE V. BAKO YUSUF & ANOR [2007] All FWLR (Pt.377) 1001 at 1010-1011.” Per LOKULO-SODIPE, J.C.A.
There are a number of documents that the Appellant contended were not properly evaluated. For a start, the Appellant alleged that the lower Court failed to properly evaluate evidence before arriving at judgment. The Appellant argued that Exhibits CH1-CH9 and LI-L2 were not evaluated. These Exhibits are cheques issued by the Respondent which the Appellant claims have no BVN inscribed upon it but were honoured, while L1-L2 are the CBN circulars on BVN verification. The dishonoured and returned cheque is Exhibit D1 with the BVN written on the face of it. The Appellant’s argument is that Exhibits CH1-CH9 have no BVN written on them as claimed by the Respondent and that they were honoured before the deadline for BVN link up by the CBN. Exhibit CH1-CH9 had no BVN written on them and the point is that they were still honoured during the window period.
Evaluation is generally described as belonging to the province of the trial Judge and it is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts, see the following cases: LAFIA LOCAL GOVT V. EXECUTIVE GOVT NASARAWA STATE & ORS (2012) LPELR-20602(SC), ANYEGWU & ANOR V. ONUCHE (2009) LPELR-521(SC) and AKINBADE & ANOR V. BABATUNDE & ORS (2017) LPELR-43463 (SC).
The said Exhibits CH1-CH9 were drawn and honoured before the 30th October, 2015 deadline given by the CBN and without a BVN number and before the cheque in issue was dishonoured. The Respondent insisted that he came to the Appellant and linked up his BVN to his account by filling the form and that he also wrote in bold the BVN on the cheque dishonoured. The trial Judge noted that the Appellant did not challenge the evidence of linking the BVN given by the Respondent long before the deadline and he believed him. Therefore, the contention that the Respondent assumed that he linked his BVN is not tenable. At page 115 of the record, it reveals that the Appellant wrote to the Respondent apologizing for the rejection of his cheque and the Respondent agreed to remain as Appellant’s customer. If there was no negligence or mishandling of the Respondent’s account, would the apology be necessary? The Appellant’s witness also told the trial Court that linking up involves filling a form which the Respondent told the trial Court that he did. Furthermore, the uncontestable fact is that the BVN was also boldly written on the cheque. Again by Exhibit L2, the CBN placed the responsibility of educating the customers of the Appellant on it and the Appellant did not establish that it educated the Respondent on the linking up of BVN to his account, assuming, he did not do so previously.
The Appellant named Exhibits it considered not evaluated but failed to go further to show the miscarriage of justice occasioned by any default if any, in failure to evaluate and I find that the allegation was not established. I fail to see the evidential value that was overlooked by the trial Judge in the Exhibits. The named Exhibits were considered by the trial Judge and they are not of any help or value to the case of the Appellant. None of the cheques is relevant because they were cleared within the grace period given by the CBN. So whether they bear the BVN or not is of no moment. The only relevant point relevant for consideration is the fact that the cheque dishonoured had BVN boldly printed on it while Exhibits CH1-CH9 did not have but were honoured. Even if it had, it makes no difference because the case of the Appellant is that the Respondent did not link up his BVN to his account with the Appellant so writing the BVN on the cheque to the Appellant is not enough even though the Respondent stated uncontrovertibly that he did linked up the BVN to his account with the Appellant and he was not cross-examined on that point. Where a party fails to cross-examined a witness on a relevant point, it means it is accepted the evidence. The law is trite on failure to traverse and to also cross-examine a witness on essential facts, the party cannot question those facts again because the implication is that he accepts the statement as the truth and the Court should act on such evidence. See AWAZIE V OKOROAFOR (2015) LPELR-40210(CA) where the Court held thusly:
“It is elementary position of the law that the effect of failure to cross-examine a party or witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness or party. See the case of GAJI vs. PAYE (2003) 8 NWLR (PT. 823) 583 and several decisions of Courts on this issue; In the recent decision of the Supreme Court in CBN ORS vs. OKOJIE (2015) LPELR-24740 (SC) per RHODES-VIVOUR, JSC had this to say on the subject; “My Lords, a litigant who fails to file a statement of defence and further fails to cross-examine the adverse party, in this case the Respondent, has by his own hands shut himself out from the proceedings in which the Plaintiff/Respondent makes serious allegations, claims against him. The Defendant has abandoned any defence he might have and the Court is expected to accept the Plaintiff’s unchallenged evidence to establish the facts the Plaintiff seeks to establish.” Per OHO, J.C.A.
The Appellant therefore accepted the evidence that the Respondent linked up his BVN and the apology letter further buttress the point.
Furthermore, failure to evaluate evidence does not nullify a judgment because the Appellate Court can perform that duty where the trial Judge whose primary duty it is to do so, failed. See the case of BELLO V. FRN (2018) LPELR-44465(SC) wherein the apex Court held that:
“This law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – See FATAI VS THE STATE (2013) 10 NWLR (pt. 1361) 1 at 21 SC.” Per BAGE, J.S.C
This is particularly so where documents form part of the evidence allegedly not evaluated as in this case, see REV. KING V. STATE (2016) LPELR-40046(SC) wherein the apex Court held thusly:
“Evaluation of evidence primarily the exclusive preserve of the trial Court except in case of documentary evidence in which the trial Court and the appellate have equal right to evaluate the evidence. See Iwuoha v. Nipost (2003) 4 SC (Pt. 11) 37. Where the trial Court failed to evaluate the evidence or to evaluate it properly or the evaluation resulted in a perverse conclusion the appellate Court would re-assess and evaluate the evidence to reach a joint conclusion – which may be different from that of the trial Court, but not necessarily so. See Okolo v. Uzoka (1978) 4 SC 77 at 86; Abusamwan v. Merchantile Bank (Nig) Ltd (No. 2) (1987) 3 WLR (Pt.60) 20.”Per NGWUTA, J.S.C.
There was no breach of fair hearing in this case as each party was afforded an opportunity to present its case. Their witnesses were examined and cross-examined and both Counsels were allowed to address the Court before the Court arrived at a decision. The findings are based on the evidence before the Court and therefore not perverse.
I agree with the Respondent that the lower Court performed its duty of evaluation.
The Appellant in arguing issue two submitted that the lower Court erred when it relied on Exhibit D5, it is a letter of protest by the Respondent. I agree that the case of the Respondent was anchored on the question “whether he linked his BVN procured from GTB to his account with the Appellant.” The Respondent made the assertion that he linked it without a protest from the Respondent. A fact not controverted is admitted and the burden of proving it cannot arise, see ORIANZI V. A.G. RIVERS STATE & ORS (2017) LPELR-41737(SC) wherein the apex Court held that:
“… Where an averment in a statement of claim is not denied in a statement of defence, same is deemed admitted. That which is admitted needs no proof. See Adesanoye V. Adewole (2000) 9 NWLR (Pt. 671) at 145 paragraph A.” Per GALINJE, J.S.C.
The said Exhibit D5 is a protest letter to the Appellant and therein at paragraph 5 the Respondent said thusly:
“I have perfected by BVN registration with you before its expiration. So, I do not see the reason for your action. Therefore, I am requesting for your immediate response.”
The Appellant did not react to this letter, it did not deny the fact that the Respondent linked up his BVN as declared in the letter. That obviously amounts to admission and a business letter which should attract a reaction and when none was offered amounts to admission, see the case ONUIGBO V. AZUBUIKE (2013) LPELR-22796(CA) wherein the apex Court held thus:
“What are the general principles of law governing correspondence in business transactions? In Trade Bank Plc. V. Chami (2003) 13 NWLR Pt. 336 P. 158 @ 219-220 this Court held that business letters, unlike social correspondence, deserve to be replied. Consequently, the Court would, unless the circumstance in which a business letter is written shows otherwise, infer that the failure to reply a business letter is an admission of the facts stated in the letter. This is so because what is not denied is deemed admitted. In Waswani v. Johnson (2000) 11 NWLR Pt. 679 P. 582.” Per BDLIYA, J.C.A.
I agree with the Appellant’s Counsel that the best evidence is a document and Exhibit D5 is the best evidence that the Respondent linked up his BVN to his account with the Appellant. The trial Judge did not abandon the main issue in controversy, the arrow head of the dispute is the linking of BVN to the account of the Respondent in Appellant’s bank and the said letter has a statement therein that touched on the nerve of the issue. Admission of facts comes in various forms and the Appellant did not cross-examine the Respondent when he repeated that he linked up his BVN and Exhibit D5 is another pointer to that fact, see the case of GAJI & ORS V. PAYE (2013) LPELR-1300(SC) wherein the apex Court held thus:
“It has been said that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 at 436. In the case of Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325, (1988) 2 SCNJ 146, this Court held that it is not proper for a defendant not to cross-examine a plaintiff’s witness on a material point and to call evidence on the matter after the plaintiff had closed his case.” Per EDOZIE, J.S.C.
The Appellant challenged the lower Court and the propriety of the trial Judge to award damages in the face of Exhibits L1-L2 (CBN circulars on the need for all account holders to link their BVN to all their accounts). Damages as described by the apex Court in plethora of cases are in two categories, we have general and special damages. Damages generally are recoverable for legal wrongs which owe their existence to a legal wrong. This results in the award of general damages. The difference between general and special damages was given in the case of SPDC LTD V. TIEBO & ORS (2005) LPELR-3203(SC) thusly:
“The distinction between special and general damages for the purpose of assessment of awards must always be borne in mind. In Stroms Bruks Akfie Bolag v. Hitchinson (1905) A.C. 515, Lord Macnaghten said: “General damages are such as the law will presume to be direct, natural or probable consequence of the action complained of. ‘Special damages’ on the other hand are such as the law will not infer from the nature of the act. They do not flow in the ordinary course. They are exceptional in their character and therefore they must be claimed specially and proved strictly.” In re Susquehanna (1926) A.C. 655 at 661, Lord Dunedin observed on the distinction between general and special damages: “If there be any special damage which is attributable to the wrongful act, that special damage must be averred and proved and if proved will be awarded. If the damage be general, then it must be averred but the qualification is a jury question.” And finally on the point is the statement of Martin B. in Prehin v. Royal Bank of Liverpool (1870) L.R. 5 Ex. 92: “General damages…are such as the jury may give when the Judge cannot point out any measure by which they are to be assessed except the opinion and judgment of a reasonable man. Special damages are given in respect of any consequences reasonably and probably arising from the breach complained of.” Per OGUNTADE, J.S.C.
The relevant class of damages here is general damages, the Respondent in his claim at pages 3-6 particularly paragraphs 22-23 prayed the lower Court as follows:
“22. The claimant will at the trial of this suit contend that the defendant has breached the contractual obligations the defendant owed him in a banker/customer’s relationship.
PARTICULARS OF BREACH
i. The ineptitude of the officials of the defendant in the defendant in the handling of the claimant’s account leave much to be desired.
ii. The action of the defendant in the non-payment of the amount on cheque No: 00091250 upon presentation by the claimant’s church has lowered the self-esteem of the claimant before the church officials and the congregation.
iii. This has caused the claimant a great discomfort and he prays this Court for damages against the defendant.
23. whereof the claimant claims general damages in the sum of N10,000,000. (Ten Million Naira) only from the defendant without any lawful excuse(s) dishonoured and failed to pay claimant’s cheque No. 00091250 dated 2nd November 2015 issued in favour of St. John’s Church Igbehin, Abeokuta, despite of having funds in excess of the said amount in Account No. 0049000091 at Union Bank plc, Bank Road Dugbe, Ibadan.
2. Cost of this suit.
The Respondent claimed damages for breach of contract between banker and customer and because the Appellant owed it the duty of care in handling his account. In awarding the sum of N2,000,000 (Two Million Naira) only as damages, the lower Court said thus:
“From the foregoing therefore, the sum of 2 million Naira is awarded against the defendant as damages when the defendant without lawful excuse(s) dishonoured and failed to pay the claimant’s cheque No. 00091250 dated 02-11-15 issued in favour of St. John’s Church, Igbehin Abeokuta despite having funds in excess of the said amount in account No. 0049009 at Union Bank Plc Bank Road Dugbe, Ibadan.”
The law is settled that a Court would award damages (BANKING LAW CHEQUE) whether the refusal of a banker to pay a cheque belonging to a customer will amount to a breach of contract “A banker may be mulcted in damages for breach of contract for refusal to pay a customer’s cheque when the latter holds in hand an amount equivalent to that endorsed on the cheque belonging to the customer. See Balogun v. The National Bank of Nigeria Ltd. (1978) 3 SC 155 at 164.
The apex Court in the case of ALLIED BANK OF NIGERIA V AKUBUEZE (1997) LPELR-429(SC) also held thus:
“The first basic point that must be made is that a bank is bound to honour a cheque issued by its customer if the customer has enough funds to satisfy the amount payable on the cheque in respect of the relevant account. Refusal to honour the cheque will amount to a breach of contract which would render the banker liable in damages.”
The award in this case was based on the fact that the Respondent established by evidence that he linked his BVN to the account held by the Appellant. However, if he failed to prove the linking up of the BVN, the claim would have failed but upon the clear evidence and an apology from the Appellant, reliance on Exhibits L1–L2 and the absence of BVN on Exhibit CH1-CH9 as defence has no utilitarian value to the Appellant and the award of damages was judiciously done and is well grounded in law.
Damages awarded flowed directly from the failure of the Appellant to honour the Respondent’s cheque and the account had enough money to satisfy the cheque. The argument that though there were enough funds in the account, it was not available for the purpose is untenable and preposterous. The fact that the Respondent is not a trader cannot derogate from the fact that he is entitled to damages. The considerations for a trader’s cheque when rejected are not applicable here. The Respondent never raised the issue of his being a trader and the submission of the Appellant on that point is diversionary. The Appellant needs to come to the realization that the fact of linking up the BVN is settled and that is the basis for the award against it in damages.
In answering issue 4 and flowing from the above resolution of the other issues, the lower Court was not wrong in holding that the Respondent has proved its case despite Exhibits CH1-CH9 AND L1-L2. There is no need repeating findings made earlier concerning the evidential value of the Exhibits. The Appellant raised the issue of duty of care as required in proving negligence, which it claimed was not established.
Negligence is defined in the case of CHEVRON (NIG) LTD & ANOR V. OMOREGHA & ORS (2015) LPELR-24516(CA) thusly:
“The term negligence denotes the failure to exercise the standard of care that a reasonably prudent person would normally have exercised in a similar situation. That’s to say, any conduct falling below the legal standard established to protect others against unreasonable risk of harm, as against conduct that is intentionally, wantonly, or willfully disregardful of other’s rights. It is trite, that negligence usually includes culpable carelessness. Also termed actionable negligence; ordinary negligence; simple negligence. See BLACK’S LAW DICTIONARY 9th Edition 2009 AT 1133. I think, it was Patrick Devlin, who once aptly remarked that –
“Negligence in law ranges from inadvertence that is hardly more than accidental to sinful disregard of the safety of others.” See THE ENFORCEMENT OF MORALS (1968) AT 36 copiously alluded to in BLACK’S LAW DICTIONARY (Supra) AT 1133.” Per SAULAWA, J.C.A
Fundamental ingredients a plaintiff must prove to succeed in an action for negligence including banker’s negligence presupposes (i) duty of care (ii) breach of duty (iii) resulting consequential damages. See Makwe v. Nwukor (2001) 6 M.J.S.C. 179.” Per OWOADE, J.C.A.
The damages awarded here was not made against the Appellant for being negligent but for breach of contract in a Banker/Customer relationship when the Appellant dishonoured the Respondent’s cheque, the attempt to convert it to a claim in negligence will not be allowed and cannot stand. Banker/Customer is a special relationship of trust founded on contract. Indeed, negligence can also occur in a banker/customer relationship, however, the claim in this appeal is a breach of contract. The arguments on negligence and its essential ingredients are not relevant in this case.
The evidence, in this case, was properly placed on the imaginary scale and it weighed against the Appellant. The Respondent linked up his BVN and as additional measure boldly printed it on the cheque. Let’s even assume that he only printed it on the cheque without linking it prior to the issuance of the cheque, would the Appellant justify its actions in dishonoring the cheque? The explanation offered by the sole witness of the Appellant was that as they were making efforts to verify the BVN when time allowed to clear the cheque lapsed and they apologized to the Respondent so if no wrong was done, why the apology?
The argument that documents admitted for a purpose cannot be abandoned by the party who tendered them has no legal basis, Exhibits CH1-CH9 and L1-L2 were not abandoned or used for a different purpose. They were given their evidential worth and effect, they are worthless to the Appellant. The decision of the lower Court is not perverse and cannot be set aside.
In the light of the above, the appeal lacks merit, the judgment of the lower Court delivered by HON. JUSTICE E. O. AJAYI on the 21st February, 2019 is hereby affirmed.
Cost of N100,000.00 (One Hundred Thousand Naira) only is awarded against the Appellant and in favour of the Respondent.
FOLASADE AYODEJI OJO, J.C.A.: I have had the benefit of reading in draft, the lead judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA. His Lordship dealt with all the issues raised in the appeal meticulously and exhaustively.
The summary of the facts that led to the action before the lower Court are as contained in the lead judgment. The Appellant refused to honour a cheque issued by the Respondent to a 3rd party on the ground that he failed to link his Bank Verification Number (BVN) with his account domiciled with the Appellant bank. At the trial, the Respondent established by credible evidence that he linked his BVN with the Appellant bank. The Appellant therefore had no reason to dishonour the Respondent’s cheque.
The relationship between the banker and his customer is that of debtor and creditor. In other words, money deposited with a banker by his customer in the ordinary way, is money lent to the banker with a superadded obligation on the part of the banker to honour the customer’s cheque if the customer has enough funds to satisfy the amount payable on the cheque. Refusal to honour the cheque amounts to a breach of contract and would render the banker liable in damages. See ALLIED BANK OF NIGERIA LIMITED VS. AKUBUEZE (1997) 6 NWLR (PT. 509) 374: UBA VS. UNION BANK OF NIGERIA PLC. (1995) 7 NWLR (PT.405) 72. Furthermore, in STANDARD TRUST BANK LIMITED VS. BARRISTER EZENWA ANUMNU (2008) 14 NWLR (PT. 1106) 125 AT 153, PARAGRAPHS. G-H, this Court held, per Adekeye, JCA (as he then was) as follows:
“In recent times and in majority of cases, the Courts have not only exercised their discretion in actions for breach of contract by a banker to its customer in favour of awarding substantial damages, but they are also now awarded “at large” “within reason” of any such sum as they consider in the circumstance of the breach of contract or dishonour of cheque warrant although there is no proof of actual loss.”
The law is therefore settled that where a bank dishonours the cheque of its customer, the bank is liable to pay substantial damages to the affected customer even where there is no proof of actual loss. The learned trial Judge was therefore right when he awarded the sum of Two Million Naira (N2,000,000.00) as damages against the Appellant for breach of contract.
It is for the foregoing reasons and the fuller reasons in the lead judgment that I too dismiss this appeal for being unmeritorious. I abide by the consequential orders including that as to costs.
ABBA BELLO MOHAMMED, J.C.A.: From the four issues distilled by the Appellant in this appeal, the Appellant’s essential contention is that the trial Court has not properly evaluated the evidence adduced before it in entering judgment for the Respondent. Now, it is settled by a long line of authorities that the evaluation of evidence and ascription of probative value thereto is the primary function of the trial Court which has the opportunity of hearing, observing and assessing the witnesses. See:OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC). per Onnoghen, JSC (as he then was) at pages 6-71 para. E; and ONWUGBUFOR & ORS v OKOYE & ORS (1996) LPELR-2716(SC), per Iguh, JSC at pages 46 – 471 Para. F.
A party who complains of non-evaluation or improper evaluation of evidence by a trial Court has a duty to show how the evidence was not evaluated or how it was improperly evaluated and how the decision of the trial Court is perverse and has occasioned miscarriage of justice. See: AMADI v A.G. IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 121 para. B; and SOLAR CONSTRUCTION SERVICES LTD v HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR-46648(CA), per Ige, JCA at page 33, para. E. In the instant appeal, the Appellant has failed to demonstrate how the trial Court has failed in its duty of evaluating the evidence led by the parties, let alone establish that the trial Court’s decision has occasioned miscarriage of justice.
In fact, as succinctly highlighted in the lead judgment of my learned brother, YARGATA BYENCHIT NIMPAR, JCA, the printed record of this appeal clearly shows that the trial Court had duly evaluated the evidence of the parties, ascribed probative value to same and reached the right conclusion/decision, especially as to the fact that the Appellant never challenged the evidence of the Respondent that he had linked his BVN to his account with the Appellant before the deadline, despite which the Appellant dishonoured his cheque (Exhibit D1) on which his BVN was boldly written.
Where, as in this case, a trial Court has duly evaluated the evidence laid before it by the parties, it is not the business of an appellate Court to interfere with same merely to substitute its own views. See: GUARDIAN NEWSPAPERS LTD & ANOR v AJEH (2011) LPELR-1343(SC), per Rhodes-Vivour, JSC at page 13, para. B; AGBEJE & ORS v AJIBOLA & ORS (2002) LPELR-237(SC). per Iguh, JSC at pages 22-23, para. G; and WOLUCHEM v GUDI (1981) LPELR-3501(SC), per Nnamani, JSC at pages 37-38, paras. A-A.
For the above and the fuller reasons stated in the lead judgment of my learned brother NIMPAR, JCA, that I also find no merit in this appeal. Accordingly, I join in dismissing same and affirming the judgment of the trial Court delivered on the 21st of February, 2019. I abide by the order as to cost.
Appearances:
Oluyemi Okumodi, Esq. For Appellant(s)
O. A. Adegoroye, Esq. For Respondent(s)
