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UBN v. ABASIAKAN-EKIM (2020)

UBN v. ABASIAKAN-EKIM

(2020)LCN/15652(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, March 26, 2020

CA/A/258/2009

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Emmanuel AkomayeAgim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

UNION BANK OF NIGERIA PLC APPELANT(S)

And

VICTOR JAMES ABASIAKAN-EKIM, ESQ RESPONDENT(S)

 

RATIO:

THE EXACT ERROR MUST BE STATED IN A GROUND OF APPEAL

It is glaring that this ground is vague and does not disclose any triable complaint. The ground did not allege how or in what respect the trial court failed to accord the appellant fair hearing and therefore did not specifically state the error that needed particulars. A ground of appeal that alleges an error or misdirection must state the exact error. Without allegin. It is trite law that a bank has a contractual obligation arising from the banker customer contractual relationship to pay any cheque issued by its customer within the credit balance in the customer’s account with it. It is also settled law that where the bank writes anything on the chequeto indicate its unwillingness to pay, the writing or endorsement on the cheque may be libellous in certain circumstances. See Okafor v. Union Bank of Nig. (1981) 1 – 3 CCHCJ 197, Access Bank V. Maryland (2005) 3 NWLR (Pt. 913) 160 and Dike v. ACB (2000) 5 NWLR (Pt 657) 441. EMMANUEL AKOMAYE AGIM, J.C.A. 

THE EFFECT OF NO REASONABLE GROUND OF APPEAL
The specific error or misdirection in the ground, the particulars or details of error or misdirection would be of nomoment because there can be no valid particulars of an error that has not been alleged to exist.
The particulars merely provide details of the error or misdirection alleged in the ground and do not constitute the ground of appeal. Order 7 Rule 3 of the Court of Appeal Rules 2016 provides that-
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or non-application by the Respondent.” EMMANUEL AKOMAYE AGIM, J.C.A. 

THE MERIT OF THE  COUNTER-CLAIM AND THE APPLICABILITY OF PUBLIC POLICY
 It is glaring from the above reproduced judgment of the trial Court that it preferred to determine the merit of the counter-claim rather than dwell on the issue of applicability of public policy. It held that the counter-claim was bound to fail as it was not proved. The appellant has rather dwelt on restating the law on why public policy should not apply to defeat theircounter-claim instead of showing that the decision of the trial Court that the counter-claim was not proved is wrong. The entire arguments of the appellant under this issue does not address the decision of the Trial Court on the merit of the counter claim and serve no useful purpose in this appeal. In any case, the failure of the counter-claim is the obvious and necessary consequence of the success of the respondent’s claim. EMMANUEL AKOMAYE AGIM, J.C.A. 

THE JUDGEMENT OF A COURT IS PRESUMED VALID UNTIL CHALLENGED

It is not enough for learned counsel for the appellant to simply assert that the trial Court did not weigh or that it wrongly weighed the evidence of the appellant and that if it had properly assessed and weighed the evidence of the appellant on the imaginary scale, the scale would have tilted in favour of the appellant and the judgment would have been in favour of the appellant without demonstrating or showing this by reference to relevant pieces of the evidence and findings of the trial. The judgment of a Court is presumed correct. It is for an appellant who contends that a judgment or any part of it is wrong to show that it is wrong. It cannot do so by mere general assertions without reference to evidence or thepart of the judgment complained against. As restated by the Supreme Court in Engineering Enterprise of Niger Contractor Co. of Nig. V A-G Kaduna State(1987) 5 SC 27 “the law is settled that a judgment of a Court of law is presumed to be valid until it is proved by a person challenging its validity to be wrong”. In Ukatta&Ors V Ndinaeze&Ors (1997) LPELR-3340(SC) it again restated that “when a judgment is delivered in a lower Court, here the High Court, it is presumed on appeal to be correct or subsist until the contrary is shown.” EMMANUEL AKOMAYE AGIM, J.C.A. 

SILENCE IN WHICH A REPLY IS EXPECTED IS A PRESUMPTION OF ADMISSION BY CONDUCT
In VASWANI V. JOHNSON (2000) 11 NWLR Pt. 679 p.582, the Court of Appeal held that: in business and mercantile transaction where in the ordinary course of business a party states in a letter that a party has done a certain act or agreed to do certain things, the party who received that letter must answer if he means to dispute the facts. When there is silence in the circumstances in which a reply is obviously expected, an irrebuttable presumption of admission by conduct or representation is raised.
See also ZENON PETROLEUM & GAS LTD V. IDRISIYYA NIG LTD (2006) 8 NWLR Pt 982, P. 221, GWANI V. EBULE (1990) 5 NWLR Pt. 149, P 201
It is the respectful view of the Court that the combined effect of Exhibit C, the contents of Exhibit E, the Defendant’s conduct of crediting the Plaintiff’s account with the sum of N200,000 (as per Exhibit B) on the same day it received Exhibit E and the failure till date to respond to or deny or clarify issues withrespect to the allegation or accusations against it in Exhibit E is an admission by conduct that indeed the Defendant unjustifiably failed to process Exhibit B and credit the Plaintiff’s account with its proceed prior to the 17th of October, 2006. The relationship between a banker and its customer being contractual and one which imposes a duty of care on the banker, a branch of which might fix the banker with liability for negligence ex contracta, the Court holds that in the circumstances of this case and by reasons of my findings hereinabove stated that the Defendant was in breach of its duty to honour the Plaintiff’s cheque for N70,000 when it failed to honour same on presentation on 13th October, 2006. EMMANUEL AKOMAYE AGIM, J.C.A. 

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This Cross appeal No. CA/A/258/2009 was commenced on 8-6-2009 when the appellant herein filed a notice of appeal against the judgment of the High Court of Federal Capital Territory in suit No. FCT/HC/CV/434/2007 delivered on 13-3-2009. The notice of appeal contains 19 grounds for the appeal.

Both sides filed, exchanged and adopted their respective briefs as follows – amended appellant’s brief, amended respondent’s brief, appellant’s reply brief.

The amended appellant’s brief did not distinctly and clearly raise and set out the issues for determination.
The amended respondent’s brief raised the following issues for determination-
1. Whether the Appellant (as Defendant/Counter claimant before the trial Court) was granted a fair hearing by the trial Court in the determination of the suit against the appellant (distilled from grounds 6).
​2. Whether the Learned trial Judge was right in striking out suomotu the process filed by the Appellant titled “REPLY TO FRESH ISSUES RAISED IN REPLY TO THE DEFENCE TO STATEMENT OF DEFENCE.”(Distilled from Ground 11 of the Notice of Appeal).
3. Whether the learned trial Judge was right when he held that the respondent’s cheque of N70,000.00 drawn in favour of Abiodun Obasa wrongfully dishonoured. (Distilled from Ground 3 of the Notice of Appeal).
4. Whether the learned trial Judge was right in awarding the sum of N4,000,000 as damages against the Appellant and whether the said sum of N4,000,000 was not excessive in the circumstances (Distilled from Ground 4 and 15 of the Notice of Appeal).
5. Whether the circumstances, the learned trial Judge properly admitted and evaluated the evidence of the parties in reaching the decision in awarding the sum of N4,000,000.00 as damages against the Appellant. (Distilled from Grounds 1, 2, 5, 7, 12 and 14 of the Notice of Appeal).
6. Whether the learned trial Judge was right in holding that the cheque was not credited into the Respondent’s account within a reasonable time when there was ample evidence that the Appellant had custody and knowledge of the Respondent’s account number (Distilled from Grounds 8, 9, 10 and 13 of the Notice of Appeal).

The respondent raised andargued a preliminary objection to this appeal on the grounds that-
1. Grounds of Appeal from which no issues are formulated and are deemed abandoned and liable to be struck out. These are Grounds 4, 7, 13, 17, 18 and 19.
2. Grounds of Appeal which are vague, prolix, argumentative, hypothetical and an academic exercise. These are grounds 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15 and 17 of the Notice of Appeal.
3. Distilling 2 issues from Ground 2 of the Notice of Appeal.
4. Argument of issues purportedly arising from Ground 2, 12 and 15 of the Notice of Appeal do not flow from those grounds.”

I have considered the arguments of both sides on this objection.

The amended appellant’s brief show that no issue or question was framed or raised for determination from issues Nos. 1, 2, 3, 8, 9, 10.
Instead of raising issues showing the complains and queries against particular parts of the judgment of the trial Court, the appellant made arguments under a headings instead of issues. The headings under which the arguments are made are – “Reply to Fresh Issue called strange Process”, “Dishonouring of cheque andmode thereof”, “Crediting Respondent’s Account within a reasonable time and notice”, “Evaluation of Evidence”, “On when damages is recoverable” and “Erroneous Estimate/Assessment of Damages.” The arguments were not made under or in respect of any issue or question raised about any part of the judgment of the trial Court. A caption or title or heading raises no complain or query about any part of the judgment of the trial Court. It does not reflect any complain or question raised in any of the grounds of this appeal. To qualify as an issue for determination, it must be a succinct or precise question, query or complain about a part of the judgment appealed against. An issue for determination is a question or complain of law or fact concerning a part of the judgment appealed against. See Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 (SC), Ogbuanyiya v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551 (SC), Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275 (SC). The issue for determination identifies the complain in the ground or grounds of appeal from which it is distilled and enables the point in controversybetween the parties to be effectively addressed and determined.
What the appellant has done in this appeal is to directly argue grounds 3, 4, 7, 8, 11, 12, 15 and 17 of this appeal under the respective headings highlighted above. As the Supreme Court held in Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 47 at 130 and Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608, “The arguments in a brief shall be based on the issues formulated and not on the grounds of appeal. Consequently, the Courts resolve the controversy in appeals by reference to the issues for determination and not the grounds of appeal.” The Supreme Court again held in Sanusi v. Ayoola (supra) that “On the formulation of the issues for determination, the grounds of appeal from which they have been formulated, disappear giving way and are replaced by the issues so formulated and the appeal is then argued on the issues and not on the grounds of appeal.”
This procedure adopted by Learned Counsel for the appellant offends Order 19 Rules 2 and 3(1) of the Court of Appeal Rules 2016 which provide that –
“2. The Appellant shall within forty-five days of the receipt ofthe Record of Appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in the appeal.
3.-(1) The brief, which may be settled by Counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.”
In the light of the foregoing, I hold that the arguments under the respective headings mentioned above are incompetent.

As it is, no issues were distilled from grounds 3, 4, 7, 8, 11, 12, 15 and 17 of this appeal. They are therefore deemed abandoned and are hereby struck out. Any ground of an appeal from which no issue for determination is distilled is abandoned and must be struck out. See Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 (SC).
The appellant’s brief did not indicate that any issue is distilled from grounds 13, 18 and 19 and thereby abandoned them. They are hereby struck out.

The appellant framed some issues for determination without distinctly and clearly setting them out. The said issues as couched in the appellant’s brief are asfollows-
1. ADMISSION OF THE RESPONDENT’S CASE BY THE APPELLANT
ISSUE NO 4
Whether in the light of the position of the law and the facts of this case, the Appellant admits the case of the Respondent as found by the trial Court when the Court failed to consider the authorities cited by the Appellant on point (Ground of Appeal No. 5 & 6).
This issue relates to Grounds of Appeal Number 5 & 6.
2. ISSUE NO 5
Whether the issue of improper filing of and absence of Account Number in Exhibit A, B & C was not raised in the pleading and evidence of the parties but was only raised in the Final Address of the Appellant’s Written Address. (Ground of Appeal No. 9).
RAISING OF ISSUE OF IMPROPER FILING OF EXHIBIT ‘A’ BY APPELLANT’S COUNSEL
This issue is raised from Grounds of Appeal No 9 and 10 of the Notice of Appeal.
3. ISSUE NO 6
Whether having regard to the facts and the evidence of DW1 being consistent with Exhibit C, D, D, and other documentary evidence admitted at the trial, was the learned trial Judge right not to believe in the evidence of DW1. (Ground of Appeal No 2)
4. WEIGHT OF EVIDENCE
ISSUE NO. 7
Whether having regard to the Pleadings and evidence adduced in support thereof in this case, the Respondent was entitled to Judgment on a balance probabilities (Ground of Appeal No 1)
This issue is derived from Grounds of Appeal Nos. 1 & 14
5. FAILURE TO DECIDE THE ISSUE JOIN ON PUBLIC POLICY
ISSUE NO 9
Whether the Learned trial Judge decided the issue join and raised on public policy as baring the counter claim of the sum of N1,512,750.00, so as to prevent this Honourable Court from exercising its power to decide the issue joined by the parties. (Ground of Appeal No. 16).

I agree with the submission of Learned Counsel for the respondent that grounds 5, 6 and 14 are vague and do not contain any triable complain. Ground 5 of this appeal reads thusly –
“The Learned trial Judge misdirected himself in law and on fact when he found the cause of action of the Plaintiff/Respondent on admission of the Respondents claim by the Defendant/Appellant.
PARTICULARS OF ERROR
1. The facts of admission, was not specifically pleaded – see Section 75 Evidence Act
2. Thecontents of the letter of the Plaintiff/Respondent purporting to constitute admission was specifically denied in the pleading of Appellant
3. The facts upon which the case Gwani V. Ebule (1990) 5 NWLR (Pt. 149) 201-217 a Court of Appeal decision, were decided are fundamentally different from the facts of the case of the Appellant.
4. The trial Court failed to employ and apply the supreme Court decided case cited by the Appellant to show that the Gwani V. Ebule is not applicable to the case under consideration contrary to the doctrine of Judicial precedent.
5. The cases are at pages 6 and 7 of the Appellant Written Address:
(a)OLATUNDE V. O.A.U. (1998) 4 SCNJ at 64 Ratios 21 – 24
(b) ODUTOLA V. PAPERSACK (NIG) LTD (2007) ALL FWLR Pt. 350 at 1221 Ratio 8.
6. (i) “When admission against interest can be valid in favour of adverse party.
An admission against interest in order to be valid in favour of adverse party must not only vindicate and reflect the legal position.”
(ii) Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents andpurposes as superfluous and a Court of law is entitled not to assign any probative value to it.”
7. The content of the letter of the Plaintiff held to be admitted is inadmissible under the evidence Act.
8. If the letter was admitted it means it is only N2 Million therein stated that was admitted and not N4 Million awarded.
9. It is not the law that the content of a particular document is admitted in part and rejected in part.”
The main body of Ground 5 of this appeal complains that the trial Court found the cause of action of the respondent on the admission of the respondent’s claim by the appellant. There is no part of the judgment that states or shows that the trial Court found the cause of action on the appellant’s admission of the respondent’s claim.
It is obvious from the particulars of this ground that what the appellant intended to appeal against was the decision of the trial Court that the refusal of the appellant to reply to the respondent’s letter of 17-10-2006 (Exhibit E) combined with Exhibit B, the cheque of 200,000 Naira paid in by the respondent into his account with appellant andExhibit C, the cheque returned unpaid, the fact that that the appellant credited the respondent’s account with the 200,000 naira on the date it received Exhibit E amounts to admission by conduct of the fact that it unjustifiably failed to process Exhibit B and credit the appellant’s account with its proceeds prior to 17-10-2006 and therefore unjustifiably refused to pay or honour Exhibit C. It is obvious that ground 5 of this appeal did not complain against this decision of the trial Court.
The cause of action is constituted by the facts that gave rise to the right to bring an action. It is clear from the originating process, the pleadings and evidence that the cause of action is the unjustified refusal of the appellant to honour and pay the cheque for N70,000.00 issued by the appellant when the respondent’s account with it had sufficient funds to cover the cheque. This cause of action arose before the respondent wrote Exhibit E to the appellant. The trial Court in its judgment did not say that the appellant’s refusal to reply to exhibit E was the cause of action.
​So, Ground 5 of this appeal is not a complain against any partof the judgment or the proceedings of the Trial Court. The complain is based on the false assumption that the trial Court held that the appellant’s admission of the respondent’s claim constitute the cause of this action at the trial Court. It is therefore incompetent.
The particulars of the misdirection or error alleged in the ground must be about the subject matter of the ground and cannot competently and validly raise a complain different from that in the ground of appeal. Where the particulars in support of a ground are not related to the subject of the ground, the ground is incompetent. See Hambe V Hueze (2001) 2 SC 26, Aderounmu V Olowu (2001) 2 SCNJ and Access Bank Plc V Sijuwade(2016) LPELR- 40188(CA).
For the above reasons, I hold that ground 5 of this appeal is incompetent.
Ground 6 of the notice of appeal reads thusly-
“The learned trial Judge erred in law when he failed to accord the Appellant fair trial or fair hearing and this has occasioned a miscarriage of justice hearing.
PARTICULARS OF ERROR
1. The address of counsel for a party to a case is part of the entire case of the party.
2. The vitalaspect and legal and statutory authorities of the Appellant’s Written Addresses to bring out and back up the case of the Appellant were not considered and applied to the case of the Appellant.
3. If the cases of OLATUNDE V. O.A.U (supra) and ODUTOLA v. Papersack (Nig) Ltd (Supra) were considered and applied to the suit, the trial Judge would not hold there is admission.
4. It is the duty of a judge to interpret and apply the provisions of the law validly made by competent constituted authorities to the facts and circumstance of the matter in controversy before the Court. Michael UmoEdet Vs. Joseph Chagoon (2008) 2 NWLR (Pt. 1070) 94 at 104 para. H.”
It is glaring that this ground is vague and does not disclose any triable complaint. The ground did not allege how or in what respect the trial court failed to accord the appellant fair hearing and therefore did not specifically state the error that needed particulars. A ground of appeal that alleges an error or misdirection must state the exact error. Without alleging the specific error or misdirection in the ground, the particulars or details of error or misdirection would be of nomoment because there can be no valid particulars of an error that has not been alleged to exist.
The particulars merely provide details of the error or misdirection alleged in the ground and do not constitute the ground of appeal. Order 7 Rule 3 of the Court of Appeal Rules 2016 provides that-
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or non-application by the Respondent.”
As it is, ground 6 is incompetent and is hereby struck out.
Grounds 9 and 10 of this appeal read thusly-
“9. The trial Court erred when he said that the issue of improper filling of Exhibits A and/or absence of Account No was not born out of the evidence before the Court or the evidence was raised by the Appellant’s final Written Address.
10. The trial Court misdirected himself on facts when he held:….”The Defendant identified the Accountnumber after search as per the endorsement on the cheque paid and pay in slip of N200,000.00 dated October, 2006.” Refers to the cheque dated 13th October, 2006.”
This ground is vague and does not raise any arguable complain. It did not state the error in the decision of the trial Court that a particular issue was raised in the defendant’s final written address. The ground of appeal offends Order 7 Rule 2(2) and 3 of the Court of Appeal Rules 2016. It is therefore incompetent and is hereby struck out.
Grounds 13 and 14 of this appeal disclose reasonable and arguable complaints they are competent and valid grounds. The objection against them lacks merit and is hereby dismissed.
Having held that grounds 5, 6, 9 and 10 of this appeal are incompetent, issues Nos. 4 and 5 distilled from them for determination are equally incompetent. It is settled law that no valid or competent issue for determination can emanate from any incompetent ground of appeal. So once a ground of appeal is found or adjudged to be incompetent, any issue derived from it and the arguments of that issue are rendered incompetent and invalid.

As it is, onlyissues No. 6, 7 and 9 in the appellant’s brief are valid for consideration in this appeal. I will determine this appeal on the basis of these remaining three issues raised.

The said three issues ask 6. “whether having regard to the facts and the evidence of DW1 being consistent with Exhibit C, D, D, and other documentary evidence admitted at the trial, was the learned trial Judge right not to believe in the evidence of DW1…
7. Whether having regard to the Pleadings and evidence adduced in support thereof in this case, the Respondent was entitled to Judgment on a balance probabilities…

I will determine them together.
I have considered the arguments of both sides on these issues.
Let me preface the determination of the merits of these arguments with a restatement of the established facts in this case.

The respondent is a customer of the appellant at its Garki Branch. Olumide Ayeni & Co is also a customer of the appellant at the same branch on 9-10-2006, Olumide Ayeni & Co issued a Union Bank Cheque for 200,000 naira to the respondent. The respondent paid in the said cheque into his account with theappellant on the same 9-10-2006.

On 13-10-2006, the respondent issued a cheque for the sum of 70,000 naira to one Abiodun Obasa for the repairs of his Mercedes Benz 190E car parked at his mechanic workshop for repair. When Abiodun Obasa presented the cheque of 70,000.00 to the appellant for payment, it refused to pay the cheque on the ground that the respondent did not have sufficient funds in his said account, a fact which was made known to Abiodun Obasa by endorsing the figure 10,452.12 as the credit balance in the respondent’s account on the back of the cheque. The Plaintiff wrote a letter dated 16th October, 2006 to the Defendant protesting the dishonour of his cheque when his account was in credit and requested for his Statement of Account. The Defendant received the letter on 17th October, 2006 but did not respond to the contents of the letter. On the basis of these facts the respondent filed the suit at the trial Court claiming for-
“1. A Declaration that the Defendant’s refusal to honour the Plaintiff’s Union Bank Nigeria Plc (formerly UTB) Cheque dated 13th October, 2006 drawn in favour of Abiodun Obasa in the sum ofN70,000 when the Plaintiff’s account was in credit in the sum of N210,452.12k is a breach of contract between the plaintiff and the Defendant and therefore irregular wrongful and unlawful.
2. A Declaration that the wrongful dishonour of the Plaintiff’s Union Bank Nigeria Plc Cheque dated 13th October, 2006 drawn in favour of Abiodun Obasa in the sum of N70,000.00 injured the Plaintiff’s reputation and exposed him to odium, contempt and ridicule.
3.a Damages in the sum of N10,000,000 (Ten Million Naira) for the breach of contract between the plaintiff and the defendant as well as for the battered reputation of the Plaintiff.
SPECIAL DAMAGES IN THE FOLLOWING TERM
b (i) Cost of alternative means of transportation (taxi) from Kubwa (where the Plaintiff resides) to his office at Wuse Zone 4 Abuja and for official assignment for 8 hours per day between 13th October, 2006 till 21st October, 2006 (8 days) at N7,500.00 per day – N60,000
(ii) Cost of Settlement of Professional fees of Counsel to Idowu Akinfenwa/Abiodun Obasa. – N25,000
4. Interest on Damages awarded at the rate of 25% per annum from 17th October,2006 until the date judgment is delivered; and thereafter on the judgment debt at the rate of 10% per annum from the date of judgment until the whole debt is finally paid on satisfied.”
The respondent counter claimed for-
“34. Where of the Defendant/Counter claim from the Plaintiff as follows:
(a) N1,512,750.00, representing 15% of the claim of the Plaintiff against the Defendant, being Professional fess of Solicitors I.H. YAMAH & CO., a Senior Counsel, for defending the defendant in this suit filed by the Plaintiff which the Defendant is paying to the said Solicitors.
PARTICULARS OF SPECIAL DAMAGES
i. The Defendant, but for this suit filed by the Plaintiff, had no cause to employ the services of I.H. YAMAH & CO.
ii. The Defendant has to pay N1,512,750.00 to I.H. YAHMAH & CO for the services rendered to by defendant this suit after a protracted negotiation.
(b) N7,000 to the staff of the Defendant for the extra time and labour exerted in regularizing the irregularities credited by the Plaintiff before the cheque of N200,000.00 irregularly paid in by the Plaintiff could be credited into thePlaintiff’s account.”

The trial Court held that the respondent’s claim succeeds in part and granted reliefs Nos. 1, 2, part 3a and refused reliefs Nos. 3b, 3c and 4. It held that the counter-claim was not proved and dismissed same.

Learned Counsel for the appellant argued under issue No. 7 that the judgment is against the weight of evidence, that civil cases are decided on preponderance of evidence, that where parties testified before the trial Court and called witness, that the trial Court is enjoined to set up an imaginary Judicial scale on which it should put the piece of evidence adduced by the parties on both sides in order to weigh the evidence, not by the number of witnesses called by the parties by piece of evidence to see which side preponderates, that in the instant case, the trial Court discharged that duty, that the trial Court, owing to his misconception of the provision of the Rule of Court of FCT, 2004, rejected the vital part of the Evidence of DW2 upon erroneously striking out what he called strange Document, refused to utilized the evidence of DW1 because he did not believe him because of what he called the bodyLanguage of DW1, that this Honourable Court should consider and utilize these evidences as the trial Court misconceived the position of the law in that regard and because of these errors, the trial Court did not assess and place any value on the evince of the Appellant, that consequently, he did not weigh and/or wrongly weighed the evidence of the Appellant on the imaginary scale of justice, that if the trial Court had properly assessed and weighed the evidence of the Appellant so as to place the value on the imaginary scale, the scale would have titled in favour of the Appellant and the Judgment of the trial Court would have been in favour of the Appellant.

Learned Counsel further submitted that there is evidence on record to the effect that DW1 was attending to customer at the branch on the 13/10/06, that it is not the law that in a proceeding by or against the company it is only the person who is personally involved in the transaction that is competent to give evidence on behalf of the company, that this Court should believe DW1 and assess his evidence, that this Court should examine the totality of the evidence placed before the trial Court and nowbefore this Honourable Court and decide this case in one way or the other, that the trial Court having struck out the Reply to fresh issues the Court called strange document on which Exhibit J was annexed and contained part of evidence to support the Appellant’s reply to the defence to counter Claim, it did not see or reckon with that part of the evidence placed before it before it decided the case against the Appellant, that this occasioned a great miscarriage of justice to the Appellant.

Under issue No. 6, he argued that that the evidence adduced by the DW1 in his witness Statement on Oath, in his evidence in Chief and under Cross-examination merit belief, having met the criteria in law and facts to be considered for believing evidence of a witness, that the trial Court did not make good use of the opportunity he had of seeing the DW1 in the witness box as to give the proper assessment of DW1’s evidence credibility, that the evidence of DW1 is consistent with Exhibits A, B, C, D & D and is also consistent with the evidence he adduced in his witness Statement on Oath and the evidence of DW2 as well as Witness Statement on Oath of Dw2,that the trial Court merely used the reason of DW1’s body language to say he did not believe DW1’s evidence, that the Court did not state the fault it found in DW1’s body Language, that this Court should discountenance the finding of the trial Court that it did not believe the evidence of DW1.

Learned Counsel for the respondent argued in reply that the Trial Court properly evaluated and assessed the evidence of the parties, that the respondent led credible evidence to prove his claim, that DW2 gave evidence to show that the non-crediting of the respondent’s account was due to software problem arising from the merger of two banks, that the appellant has vehemently contested the Trial Court’s reliance on DW2’s evidence on the ground that the fact was not pleaded, that the appellant misconceived the law on the point, that when the evidence of a party supports the case of an adversary, the other party is at liberty to take benefit of such advantage, that the Trial Court was right when it held that failure of the appellant to reply to exhibit C amounted to admission of its contents, in that business letters which requireresponse, would be deemed admitted if not replied to, that the evidence of the endorsement of N10,452.12 on the back of Exhibit C by one Esther was admissible even though Esther was not called to testify as a witness, that the pleading and evidence of the respondent establish that the appellant unjustifiably dishonoured the respondent’s cheque Exhibit C, that DW2 testified under cross-examination that the cheque could not be honoured due to internal problems caused by software and merger of Universal Trust Bank and Union Bank of Nigeria Plc, that the finding and inference of the trial Court that the appellant dishonoured the cheque is supported by evidence, that the trial Court rightly believed DW2, that the trial Court was right in awarding the sum of 4 Million Naira as damages.

Let me now consider the merit of these arguments of both sides on these issues.

The pleadings and evidence of the respondent clearly establish that the 200,000 naira cheque (Exhibit B) issued by Olumide Ayeni & Co., a customer of the appellant at its Garki branch, to the respondent on 9-10-2006 was paid by the respondent into his account with the appellant at thesame Garki branch on the same 9-10-2006, that to enable the repair of his Mercedes Benz car 190E parked in his mechanics workshop, the respondent on the 13-10-2006, issued a cheque of 70,000 naira (Exhibit C) to one Abiodun Obasa, on his account with the appellant at the same Garki Branch, that the Credit balance in the respondent’s said account with the appellant stood at N210,452.12 on the said 13-10-2006, that upon presentment of the cheque by Abiodun Obasa to the appellant for payment, the cashier of the appellant refused to pay the cheque and gave insufficient funds in the said account as reason, that the said cashier made this fact known to Abiodun Obasa and the mechanic Idowu Akinfenwa by endorsing on the back of the cheque the figure of 10,452.12 as the credit balance in the respondent’s account, that on 16-10-2006, the respondent wrote a letter (Exhibit C) to the appellant protesting the dishonour of his cheque, when his account had sufficient funds and demanded for the statement of his said account, that the appellant received the letter but refused to respond to the requests therein, that the unjustified dishonour of his said cheque hasinjured his reputation greatly and that the appellant credited the respondent’s cheque of 200,000 naira after it received xhibit E on 16-10-2006.

These facts established by the pleadings and evidence of the respondent show that the appellant dishonoured the respondent’s cheque presented for payment at the branch where respondent’s account is domiciled, even though the account had sufficient funds to pay the sum on the cheque, that the dishonour is wrongful, that the appellant thereby breached its obligation under the banker/customer contract to pay a demand made by the customer by drawing a cheque within the credit balance in the account, that the dishonour and the appellant’s staff endorsement at the back of the cheque which showed insufficient credit balance to pay the sum on the cheque is injurious to his credit reputation and libellous. It is trite law that a bank has a contractual obligation arising from the banker customer contractual relationship to pay any cheque issued by its customer within the credit balance in the customer’s account with it. It is also settled law that where the bank writes anything on the chequeto indicate its unwillingness to pay, the writing or endorsement on the cheque may be libellous in certain circumstances. See Okafor v. Union Bank of Nig. (1981) 1 – 3 CCHCJ 197, Access Bank V. Maryland (2005) 3 NWLR (Pt. 913) 160 and Dike v. ACB (2000) 5 NWLR (Pt 657) 441.

The respondent’s pleadings and evidence having established the above facts, the burden then shifted to the appellant to rebut the case made out by the respondent’s pleading and evidence by virtue of S.133(1) and (2) of the Evidence Act 2011 which provides that-
133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in thepleadings have been dealt with.“

The defence of the appellant in paragraphs 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 28 and 29 of the statement of defence is that –
“4. Abiodun Obasa did not present any cheque or the alleged cheque for acceptance and/or payment to the Defendant at the counter or at any other place of business of the Defendant.
5. the Defendant did not disclose the balance in the account of the Plaintiff to the holder of the cheque allegedly issued by the Plaintiff to AbiondunObasa or any other 3rd party.
6. the Defendant did not in any way write any facts anywhere or on the alleged cheque issued to Abiodun Obasa which defames or capable of bringing the Plaintiff to disrepute, odium or portraying the Plaintiff as a criminal as to bring about investigation of Plaintiff by police in Nigeria.
7. All and each of the alleged defamatory words appearing on the statement of claim of the Plaintiff are figment of imagination of the Plaintiff and no facts the Defendant ever said, wrote or insinuates from which any or all the inferences purportedly drawn by the Plaintiff in the statement of claimof the Plaintiff could be deduced as averred in the statement of claim of the Plaintiff.
9. The Defendant, based on the peculiar fact of its present absolving or bought in the Universal Trust Bank Ltd for having to marry the two families of their two independent operations into a uniform one operational system with due observance of their internal management rules and policy, and general Banking Operation as well as the failure of the Plaintiff to comply with the instruction of paying in cheque of N200,000.00 into his Account which created some difficulties to the Defendant in crediting the Account of the Plaintiff forthwith, with the proceeds therein the said cheque, the defendant credited the account of the Plaintiff with the sum of N200,000.00 within a reasonable time in the circumstances of the way and manner the Plaintiff operated his Account.
10. The Defendant did not write the figure “10,452 = 12” appearing on the purportedly issued cheque dated 13/10/2006 annexed to the Plaintiff’s statement of claim as annexture 2.
11. The Defendant, upon due endorsement on a cheque due presentation of the endorsed cheque in thenormal course of business and upon due observance of banking rules, procedure, regulation and practice by both the Plaintiff and Defendant, have specific procedure and acknowledgment of receipt of the cheque with particular endorsement on the cheque showing that a duly presented cheque for payment was in fact, presented and dishonoured on the face of it and this is not so on the face of the said purported cheque dated 13/10/2006 because the purported cheque was never presented to the Defendant for acceptance and/or payment of the proceeds therein.
12. The Defendant avers that the bearer of the cheque, Mr. Abiodun Obasa did not bring the cheque into a state of presentment to and acceptance by the Defendant, let alone dishonouring the cheque dated 13/10/2006 by the Defendant.
13. Had the Defendant, presenting of the cheque, the cashier would damp the cheque as endorsed by Biodun Obasa and the Defendant would have had full particulars of whom received the cash as dictates by the customer of the Defendant and other Banks as the cheque was a negotiable one and to protect the defendant.
14. The Defendant avers that it normally requires in the operationof the Account of the Plaintiff/other customers’ account when a cheque is duly paid in, after the customer has duly complied with the instruction, the Plaintiff was or is to allow reasonable time to lapse before drawing against cheque to enable the bank carryout the necessary book keeping operations and clear the cheque as per the banking practice.
15. The Defendant avers that when it dishonours a cheque depending upon the state of the account, it normally writes on the cheque “Draw’s Attention Required”, “Unclear effect”, “Re present”, or “in sufficient fund” and signed or initial the dishonoured cheque and/or stamp it and date it but the cheque of the Plaintiff purportedly dishonoured does not come to the attention of the Defendant and let alone for it to be dishonoured by the Defendant, hence it does not bear any of these signs of dishonouring a cheque.
16. The Defendant avers that while stating the state of an account to their customers (Plaintiff inclusive) upon request for Balance, it normally does so in their professional ways, according to the general banking practice as to indicateif the account is in Debit (DR) or credit (CR). And not in the alleged way (10.452 =12) by the Plaintiff does showing that it was not the Defendant that inscribed “10,452=12” on the cheque dated 13/10/2006.
17. The defendant further avers in the alternative that mere paying in cheque by Plaintiff into the account of the Plaintiff does not automatically render the account of the Plaintiff in fund.
18. The Defendant did not respond to the letter of the Plaintiff dated 16/10/2006 because the Plaintiff was mere window dressing and gold digging as per the last paragraph of it when Abiodun Obasa did not present any cheque for payment to the Defendant and the letter was misdirected.
21. No false statement in permanent form made by the Defendant on the cheque dated 13/10/2006; communicated to anybody, Mr. Abiodun Obasa or Idowu Akinfenwa in permanent form or orally by the Defendant and refers to the Plaintiff in the said cheque dated 13/10/2006.
22 While the Defendant denies writing those figures in the cheque, the Defendant avers in the alternative that the figures are innocuous and incapable of such interpretation and conveying suchmeaning and of inflicting injury to the Plaintiff as alleged. The complained figures in the said cheque, without more are naturally innocent and no additional facts supplied on the said cheque convey or capable of conveying defamatory meaning as alleged by the Plaintiff.
28. Plaintiff by issuing the cheque of N70,000.00 to Abiodun Obasa (who did not present the cheque) was asking the Defendant for over draft which the Defendant was not obliged to grant as the Defendant did not agree with the plaintiff on that.
29. that the Plaintiff has no right to put upon the Defendant any risk or liability arising from the Plaintiff’s default in complying with the banking practice and procedure not contemplated under their contractual relationship, which default of the Plaintiff arised out of his ordinary running of his Account with the Defendant and Defendant will not be bound by such risk or liability.“

The testimonies of the appellant’s witnesses DW1 and DW2 support the above averments. Their testimonies under cross examination showed that the appellant’s delay in crediting the 200,000 naira cheque into the respondent’saccount with it and its dishonour of the respondent’s cheque of 70,000 naira (Exhibit C) was unjustifiable. The trial Court held concerning the rebuttal evidence of the said witnesses thusly- “From the testimonies of the Defendant’s witnesses, it is apparent to this Court that the planks of its defence are (1) that the Plaintiff’s Abiodun Obasa did not present the cheque (Exhibit C) and so its cashier did not inscribe the figure “10,452,12” on it signifying that was his balance (2) the way and manner the Plaintiff lodged on the cheque for N200,000 i.e. Exhibit B caused the delay in crediting his account with the proceed uptill the 17th October, 2006; (3) That until the Plaintiff’s account was credited with the value of Exhibit B i.e. N200,000.00 on 17th October, 2006 it cannot be validly claimed that the Plaintiff’s account was in credit up to the tune of N210,452. 12k when he issued the cheque for N70,000 (Exhibit C) to Abiodun Obasa on 13 the October, 2006.
I have however taken a close look at the testimonies of the Dw1 an2 und Dwder cross examination to determine if they are consistent with the abovedefences of the Defendant. This is because the DW being staff of the Defendant evidence elicited from them through the test of cross examination will shed a clearer light to the Court. On what possibly transpired between the parties.
The Dw1 testified inter alia thus:
“I know very well about the transactions relating to this suit. I know the branch of the Defendant where the transaction took place. It is UNA Area 8 Ogbomosho Street, Abuja. A cheque issued for cashment in the same branch of the bank is supposed to be given value, in so far as it is drawn properly and it is paid into the account properly, within one day.
I have seen Exhibit D1. The cheque of N200,000.00 as reflected in it. It shows the sum entered into the account on 17th October, 2006. I have seen Exhibit A. it is the deposit Teller. From it the cheque for N200,000 was deposited on the 9th of October, 2006. Between 9th and 17th is an interval of 9 days inclusive of day of deposit.
If the instrument is drawn properly, when there is no money in the drawer’s account what we do is to return it with a specific mark depending on circumstances. When there is no money inthe account and the customer is not a valued one, we return it with the inscription “refer to drawer”.
Where he has a cheque which is yet to clear, it is marked “Represent” where it was not endorse properly, we normally write “Drawer’s attention Required”.
This cheque, Exhibit B had been paid and so it wouldn’t have been marked with any of the above endorsements. There was money in the account but there was error on the Account number when the cheque was presented. We do not normally return a cheque when there is error in the account number. What we normally do is to try to ameliorate the error.
In the instant case, Exhibit A is a Union Bank Teller filled in by the Plaintiff. His account which he sought to pay the cheque was a Universal Trust Bank Account. The Account was still maintained by Universal Trust Bank but the bank teller which he filled is a Union Bank Teller. After acquisition of UTB by Union Bank, Union Bank has changed all the account numbers of all customers of former UTB including the Plaintiff in this action and Dr. Olumide Ayeni & Co., who gave the Plaintiff a cheque in the sumof N210,000.00. Neither the teller nor the cheque sought to be paid reflected the newly changed number in spite of notice. So the bank on its own took time to ascertain the Account numbers of both the Plaintiff and his benefactor – the person who gave him the cheque. This was how we corrected the error.
The Defendant changed all the account numbers I said and gave notice to the Plaintiff and Dr. Ayeni. The notice was pasted on the notice board in the branch and other conspicuous areas.
The Dw2 on his own part testified thus:
“I have been in the employment of the Defendant since March, 2006. In October, 2006, I was a cashier. I have been a diligent cashier. Sometimes I make little mistakes as a human being. As at October, 2006, the branch had only a cashier and that was me. Even as I am taking now, we still have only one cashier. As at that time payment of cheques and withdrawal of cash were done by one cashier. I know the Plaintiff very well (Court: the witness identifies Mr. Abiasiakan-Ekim as the Plaintiff).”
I have seen Exhibit D1. I posted all the transaction in it because I was the only cashier. I have seen Exhibit B. Thedate on it is 9th October, 2006. It was received and treated by the bank. The main signature and initial on it are that of the former Accountant of the branch who is now the Manger. I personally did not receive Exhibit B. I have seen Exhibit A. It is the instrument with which a cheque was deposited with the Defendant. The signature on it is not mine. I do not know the cashier who signed it. There is a stamp on it.
From what I observed, a cheque of a bank going into an Account in the same bank does not go through the counter. It goes to the department called Customer Services Department (CSD) who is also a Teller but not a Cashier. That was why this instrument did not pass through me.
I have seen Exhibit D1. The posting of Exhibits A and B are reflected in it. If you have a print out of a Customer’s Account every transaction from the bank irrespective of the department will be on it. I did not see the N200,000.00 transaction. It was processed through the Customer Services Department. What all this means is that cheques or funds could be paid in through other Departments of the bank and not through me.
I have seen Exhibit B. Under the nameOlumide Ayeni & Co there is a number. By design any number around the name of the Account Holder is the Account number of the customer.
As at the date, the number appearing under the name is not the account number of the customer. I cannot tell his Account number looking at Exhibit B. Through the cheque carries a UTB design, at the time of merger people were still allowed to transact with the Union Bank Account number. From the several account numbers it is not possible to say which is the Account number. But if it is presented and the customer has Union Bank Account number on it, it will be processed.
The account number referred to in Exhibit J were changed by Union Bank and the bank is in a position to know which customer own which account number Exhibit B was processed. I wouldn’t know if the handwritten Account number above the name Olumide Ayeni & Co was the Account number.
I have seen Exhibit C. The number below Victor Abasiakan-Ekim written by machine is an Account number. The handwritten one is the UBN Area 8 Account number. Yes it is the witness Account number. After the merger customers were allowed to use the UTB chequeand when it is presented, the new UBN will write the Account number. Customers were referred to the Customer Service Office for their new Account numbers. Customer Service Officers were asked to give the customers on a sheet of paper the customer’s Account number. They could have been writing the Account numbers on all the cheque leaflets.
I have been with the bank for less than 5 years. In the present banking system we have so many software both then it was a very peculiar situation. When the two banks merged and getting Account numbers was very difficult because of the software being used and that was why the bank has gone from one software to another. Then it was not easy over the problem of systems and the bank was also aware of fraudsters and bank officers even passed nights in the bank trying to sort out the problem. It was a problem of harmonization that cause some of the delay in payment of cash.
When accounts are about to be opened for customers, they are asked to furnish the bank with their addresses including telephone numbers. For the Plaintiff to have had an account with us shows he furnished all the information…..”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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From the evidence of these two defence witnesses who are staff of the Defendant under cross examination it is discernible that strenuous efforts were made by them to establish that the failure of the Plaintiff to properly fill in Exhibit A resulted in the delay in crediting his account with the value of Exhibit B. This is despite the fact that, as earlier held by the Court, the facts of improper filing in of Exhibit A by the Plaintiff were not pleaded by the Defendant and so evidence in that regard cannot be propelled to the front burner through the Written Address of Counsel.
In his testimony with regard to the filing of Exhibit A, the Dw1 stated:
“The instant case, Exhibit A is a Union Bank teller filled in by the Plaintiff. His account which he sought to pay the cheque was a Universal Trust Account. The account is still maintained by Universal Trust Bank but the bank teller which he filled in is a Union Bank, Union Bank has changed all account number of all customers of former UTB including the Plaintiff in this action and Dr. Olumide Ayeni & Co who gave the Plaintiff a cheque in the sum of N200,000. Neither the teller nor the chequesought to be paid reflected the newly changed numbers in spite of notice. So the bank on its own took time to ascertain the Account number of both the Plaintiff and his benefactor – the person who gave him the cheque…..”
In contrast to this testimony however, the Dw2 stated inter alia:
“After the merger customers were allowed to use the UTB cheque and when it is presented the new UBN will write the Account number. Customers were referred to the Customer Service office for their new Account numbers.
Customer Service Officers were asked to give the customers on a sheet of paper the customer’s account number. They could have been writing the Account Numbers on all the cheque leaflets…. The UBN changed the account numbers referred to the Exhibit J and it is in a position to know which customer owns which account number.”
From the foregoing, it is deducible that while the Dw1 wants the Court to believe that the Plaintiff and the firm of Olumide Ayeni & Co negligently failed to ascertain and write their new account numbers on Exhibit A and Exhibit B respectively after the merger of the two banksdespite the notice give them to that effect, the Dw2 on his part said that after the merger customers were allowed to use the UTB cheques and when it is presented, “the new UBN” will write the Account numbers and is the position to know which customer owns which account number.
That Customer Service Officers were asked to give the customers in a sheet of paper their Account number and that they (the customer Service officers) would have been writing the account numbers on all the cheque leaflets. What this shows is that as opposed to the Dw1’s evidence that the plaintiff and his principal failed prior to filing and presenting Exhibits A and B, to obtain their new account numbers and reflect them on the Exhibits, by the Dw2’s account, what happened was that customers of UTB presented their cheques and the staff of “the new UBN” would write their new account number on them. That indeed that was why staff of the Customer Services Department were given instructions to write it for them on a sheet of paper. He even added, that the staff could have been writing the account numbers on all the cheque leaflets.
Having closely observed the demeanour and body language of the witness while the testified in the witness box, the Court is of the view that the DW1 cuts the picture of a witness who was all out to cover up the mistakes or lapses of the Defendant in the transaction even when he was not personally involved in the transactions. Indeed as even stated by him, between October and December, 2006, he was an area legal officer and his schedule of duty related to legal matters for the entire area though he also served as Secretary/Chairman of many committees. Further, he has never served as a cashier or Teller. This is thus clear he is not a witness of truth. Accordingly, the Court disbelieves his evidence and places no weight on it.
As opposed to him, the Court believes the evidence of the DW2 under cross-examination. He did tell the Court that as of October, 2006, the Defendant’s branch did have only a cashier and he was the one. He conceded that as a human being he could make little mistakes. He said that at that time payment of cheques and withdrawal of cash were done by him.
Nothing better illustrates this full involvement in the transaction better thanthis. Added to this is the fact that he could even personally identify the Plaintiff in Court as the customer involved. The Court therefore holds him as having told the truth under cross examination.
The Court having believed the Dw2’s testimony under cross examination that the new Union Bank knew the account numbers of the customers and its officials exercised the function of writing the new Account numbers on the cheques of the erstwhile Universal Trust Bank on presentation it stands to reason that rather than the Plaintiff, it was the duty of the Defendant’s staff who handled Exhibits A and B to have inserted the Account numbers on them and processed them without delay. That duty the staff failed to carryout with the result that the Plaintiff account was not credited with the value of N200,000.00 as per Exhibit B until the 17th of October, 2006.
Assuming but without holding it was the duty of the Plaintiff and his benefactor to ascertain and fill in the account number and they failed to do so, was it not incumbent on the staff who received Exhibits A and B to draw the plaintiff’s attention to the need to ascertain and fill in thenew Account numbers. Was it not a grievous act of omission, nay negligence for the staff, full aware of the emergent practice in this regard to have received the exhibits and failed to draw the attention of the Plaintiff to the practice even if later the Plaintiff and his benefactor having been, as shown in evidence known to them and they have the telephone number of the Plaintiff. Is it not unjust for the Defendant to have failed in its duty in the circumstances to turn round now and rely on its failure to justify the failure to credit the Plaintiff’s account with the value of Exhibit B from 9th to 17th October, 2006. This Court finds that the conduct of the Defendant in the circumstance unconscionable and unacceptable in the circumstances.
A further and closer examination of the testimony of the Dw2 under cross-examination reveals an admission that delays were caused in the payment of cheques because of the problems the Defendant encountered in harmonizing the accounts of the two banks which was caused by the kind of software they used.
The witness stated this in this regard:-
“in the present banking system we have so many softwarebut then it was a very peculiar situation when the two banks merged and getting Account number was very difficult because of the software being used and that was why the bank has gone from one software to another. Then it was not easy over the problem of systems and the bank was also aware of fraudsters and bank officers even passed nights in the bank trying to sort out the problem. It was a problem of harmonization that caused some of the delay in payment of cash.”
The Defendant having found itself in the problem as stated above and being conscious of the implications of unjustified dishonour of cheques, it was quite imprudent and hasty of it to have retuned Exhibit C when it was presented to it and claim as it does now that the exhibit was returned because the Plaintiff’s account was not in the credit as at 13th October, 2006.
This brings me to the Defendant’s contention that Exhibit C was not presented at all to its cashier by Abiodun Obasa. That the figure “10, 452.12” at the back of it was not marked by its cashier. That if it was presented, the cashier following established practice and custom would have stamped,and initialled it showing it has been received. And that if indeed it was dishonoured the cashier would have marked any of “Drawer’s attention Required” or Uncleared effects” or “insufficient funds” on it.
Again a look at the Dw2’s testimony under cross examination shows the circumstances and mutability to this defendant’s contention the witness said:
“From what I observed, a cheque of a bank going into an account in the same bank does not go through the counter. It goes to the department called Customer Service Department officer (CSO) who is also a Teller but not a cashier. That was why this instrument did not pass through me.” Further down, he said “what all this means is that cheques or funds could be paid through other departments of the bank and not through me.”
When it is recalled that this witness did state at the onset of his testimony that he was the only cashier of the defendant as at October, 2006 it becomes apparent that contrary to the Defendant’s contention, that cheques (Exhibit C inclusive) were also processed by its Customer Service Department. Thatit was not only the cashier who processed cheques. This in effect means there was a possibility of Exhibit C being presented to a staff of the Customer Services Department and not the Dw2 or any other cashier.
But of greater important to the foregoing is the fact that the plaintiff feeling that his cheque was unjustifiably dishonoured sent a letter 16th October, 2006 i.e. Exhibit E to the Defendant wherein he narrated how his cheque was dishonoured and figure “N10,452.12k” marked on it implying that was his credit balance when as a matter of fact he had the sum of N210,000.00 in his credit. As shown on the face of it, as well as admitted by the Defendant’s witnesses, the Defendant received the letter the next day 17th October, 2006. Remarkably, the Defendant did not reply the letter despite the grave allegation or accusations against it contained therein. Curiously, however, the Plaintiff’s cheque for N200,000.00 (EXHIBIT B) which was not credited since 9th October, 2006 suddenly became credited same day the Defendant received the Plaintiff’s said letter as shown in Exhibit D1, it is noteworthy that the Defendant did not deemit necessary to reply to the contents of Exhibit but deemed it necessary to quickly rally round and process Exhibit C and credit the account with the value. What is the implication of this?
In VASWANI V. JOHNSON(2000) 11 NWLR Pt. 679 p.582, the Court of Appeal held that: in business and mercantile transaction where in the ordinary course of business a party states in a letter that a party has done a certain act or agreed to do certain things, the party who received that letter must answer if he means to dispute the facts. When there is silence in the circumstances in which a reply is obviously expected, an irrebuttable presumption of admission by conduct or representation is raised.
See also ZENON PETROLEUM & GAS LTD V. IDRISIYYA NIG LTD (2006) 8 NWLR Pt 982, P. 221, GWANI V. EBULE (1990) 5 NWLR Pt. 149, P 201
It is the respectful view of the Court that the combined effect of Exhibit C, the contents of Exhibit E, the Defendant’s conduct of crediting the Plaintiff’s account with the sum of N200,000 (as per Exhibit B) on the same day it received Exhibit E and the failure till date to respond to or deny or clarify issues withrespect to the allegation or accusations against it in Exhibit E is an admission by conduct that indeed the Defendant unjustifiably failed to process Exhibit B and credit the Plaintiff’s account with its proceed prior to the 17th of October, 2006. The relationship between a banker and its customer being contractual and one which imposes a duty of care on the banker, a branch of which might fix the banker with liability for negligence ex contracta, the Court holds that in the circumstances of this case and by reasons of my findings hereinabove stated that the Defendant was in breach of its duty to honour the Plaintiff’s cheque for N70,000 when it failed to honour same on presentation on 13th October, 2006. The Defendant is thus in breach of his contract with the Plaintiff to honour his cheque when he has sufficient funds.”

Learned counsel for the appellant in arguing against the trial Courts disbelief of DW1, did not state that the disbelief was unreasonable and perverse. It was not enough to merely assert, as Learned Counsel for the appellant did, that DW1’s testimony in examination in chief and under cross examination isconsistent with Exhibits C, D, E and other documentary evidence in the case. The appellant must go further to demonstrate that consistency by reference to relevant portions of the exhibits and the testimonial evidence. The appellant not having shown that the disbelieve of the DW1’s testimony by the trial Court is unreasonable or perverse, this Court lacks the power to interfere with the decision of the trial Court on the credibility of the witnesses. The appellant has not shown that the trial Court did not make good use of the opportunity it had of seeing and hearing DW1 testify in the witness box. In Williams v. The State (1992) 10 SCNJ 74, the Supreme Court held that “It is not the function of this Court to disturb findings of fact of the trial Court especially were those findings are based on the credibility of witnesses who had testified before the trial Court unless the decision is shown to be perverse and not the result of a proper exercise of judicial discretion (See for example Elabanjo v. Tijani (1986) 5 NWLR (Pt. 46) 952, Akpagbue v. Ogu (1976) 6 S.C. 63 Odofin v. Ayoola (1984) 11 S.C. 72).“ In Nasamu v. The State (1979) 6 – 9SC 112, the apex Court held that “By now, it is trite law, that a trial Court is in the best position to access the credibility of witnesses.”
In Agbonifo v. Aiwereoba (1988) LPELR – 245 (SC), the Supreme Court held that where the issue is that of credibility of witnesses, the Appellate court has a very limited, if any, scope to interfere. It can only do so when the trial Court decided to believe a witness quite contrary to the trend of accepted evidence or where oral testimony is contrary to the contents of a written document.
In Agbi v. Ogbeh (2006) LPELR – 240 (SC), the Supreme Court held – “It is trite law, that a trial Court is the best Judge of his domain as it relates to believing or disbelieving a witness. An Appeal Court will not interfere unless it is shown that inference drawn by the trial Judge was not supported by the evidence and the facts before him or was perverse. See Ebba v. Ogodo (1984) 1 SCNLR 372; Nnorodim v. Ezeani (2001) 5 NWLR (Pt. 7(6) 203….. The law is settled that in ascribing probative value to the testimony of a witness, the Court takes into consideration, whether the testimonyis cogent, consistent and in accord with reason and in relation to other evidence before it. In the determination of the credibility of witnesses, the demeanour, personality, reaction to question under examination are all factors to be taken into consideration. The determination of the credibility of a witness is within the province of the trial Judge, where the veracity of a witness is in doubt, his evidence should carry no weight.”

It is not enough for learned counsel for the appellant to simply assert that the trial Court did not weigh or that it wrongly weighed the evidence of the appellant and that if it had properly assessed and weighed the evidence of the appellant on the imaginary scale, the scale would have tilted in favour of the appellant and the judgment would have been in favour of the appellant without demonstrating or showing this by reference to relevant pieces of the evidence and findings of the trial. The judgment of a Court is presumed correct. It is for an appellant who contends that a judgment or any part of it is wrong to show that it is wrong. It cannot do so by mere general assertions without reference to evidence or thepart of the judgment complained against. As restated by the Supreme Court in Engineering Enterprise of Niger Contractor Co. of Nig. V A-G Kaduna State(1987) 5 SC 27 “the law is settled that a judgment of a Court of law is presumed to be valid until it is proved by a person challenging its validity to be wrong”. In Ukatta&Ors V Ndinaeze&Ors (1997) LPELR-3340(SC) it again restated that “when a judgment is delivered in a lower Court, here the High Court, it is presumed on appeal to be correct or subsist until the contrary is shown.”

In the light of the foregoing, I resolve issues Nos. 6 and 7 in the appellant’s brief in favour of the respondent.

Let me now consider issue No. 9 which asks- “Whether the Learned trial Judge decided the issue joined and raised on public policy as baring the counter claim of the sum of N1,512,750.00, so as to prevent this Honourable Court from exercising its power to decide the issue joined by the parties. “

The issue as couched deals with the judgment of the trial Court on the appellant’s counter-claim. The said part of the judgment dealing with thecounter-claim reads thusly –
“Finally, the Defendant did file a Counter claim wherein he claims as follows against the Plaintiff/Defendants-
(a) N1,512,750.00 representing 15% of the claim of the Plaintiff against the Defendant being professional fee of solicitors, I.H. YAMAH & Co, a senior Counsel for Defending the Defendant in this suit filed by the Plaintiff which the Defendant is paying to the solicitors.
(b) N7,000.00 to the staff of the Defendant for the extra time and labour exerted in regularizing the irregularities created by the Plaintiff before the cheque of N210,000.00 irregularly paid in by the Plaintiff could be credited into the Plaintiff’s Account.
(c) In reaction to the Counter-claim the plaintiff did file a Defence in which he joined issues with the claims of the Defendant counter-claimant.
In proof of relief no. 9 of the counter-claim, the Dw1 testified in paragraph 3d, e, and f of the Witness Statement on Oath thus:-
(d) He Plaintiff carelessly disregard the expressly (sic) instruction of the Defendant which would have enable (sic) the Defendant to effectively and promptly attend (sic) tothe cheque of N200,000 paid into this purported Account thereby causing the Defendant to loss (sic-lose) ample time, assigning staff of the Defendant to work for some days to trace the Account.
(e) The staff of the bank, so assigned to regularizes (sic) the position of the Account are on paid roll of the Defendant and were remunerated by the Defendant (sic) for they would have used to do the work.
(f) The Defendant further incurred losses/damages when it employed and paid for the services of a senior Counsel who is defending this suit in the sum of N1,512,750.00 being his professional fee. This represents 15% of the claim of the Plaintiff against the Defendant in this suit.
The Plaintiff joined issued with the Defendant/Counter Claimant on this claim in paragraph 23 (1) of his 2nd Statement on Oath wherein he stated that it is against public policy of Nigeria for a party to seek to recover its cost of hiring a Counsel to defend it in a suit from its adversary and it is illegal as well.
I have given a deep thought to the contentions of the parties. The learned Defendant/Counter Claimant’s Counsel has made very elaborate submissionslead with decided authorities in the effort to justify this contention that public policy cannot apply to deprive a party of his right under the law.
Be this as it may, it is the respectful view of this Court that before the issue of whether or not public policy is applicable can be considered, it must be shown that the Counter Claimant has proved by valid, credible and positive evidence his entitlement to the payment of the said fee it claimed to have paid the said solicitors.
A look at the relief shows it is a liquidated money demand which falls within the realm of a special damage. As earlier held, special damages by their nature cannot be validly claimed unless they are specifically pleaded and strictly proved. What this means is that the head of claim or sum claimed must not only be clearly ascertained and specific but must be covered by a document or receipt clearly showing the money was paid or expended. In this case no such evidence has been placed before the Court by Counter Claimant positively showing that the Counter paid the sum of N1,512,750.00 as legal fee or professional fee to the firm of I.H. Yamah& Co., for the defence of suit No: FCT/HC/CV/434/2007: VICTOR JAMES ABASIAKAN – EKIM ESQ V. UNION BANK OF NIGERIA in this Court. In the absence of such an evidence, the claim remains not only misconceived but certainly not established. Having not been proved, the Court’s duty in the circumstance is no other than to dismiss it. It is hereby dismissed.
In relief no. b, the Counter Claimant claims payment of N7,000.00 to the staff of the Defendant for the extra time and labour exerted in regularizing the irregularities created by the Plaintiff before the cheque of N200,000.00 irregularly paid in by the Plaintiff could be credited into the Plaintiff’s Account.
This Court had while considering the main suit made a finding that consistent with the evidence of Dw2 under cross-examination that the Plaintiff was not guilty of failing to fill in his new Account Number into Exhibit A but rather that the staff of the Defendant was negligent or omitted to fill in the said account number. That the said staff by their act of omission or negligence caused the delay in having the proceed of Exhibit B credited into the Plaintiff’s account. Having so found and held, this relief no. b has no subtraction on which to refund.
Assuming however but without so holding, the claim can be made, being a claim for in payment of the sum of N7,000.00 to the staff of the Defendant who did the said regularizing of the irregularities, the question that begs for answer is whether the claim of money which is being made on behalf of the said staff who are biological persons and distinct from the Counter-Claimant and who have not been made parties to this Counter-Claim can be entertained in the circumstances in which they are not parties to the Counter-Claim. Additionally, the Dw2 had told the Court that the problem the Defendant had with getting account numbers had to do with problem of harmonization of both banks’ account after the merger. That the problem was caused by the kind of software they had at the time.
From his testimony, it is apparent the Counter-Claimant problem was not caused by the Plaintiff/Defendant but the general problem of the Counter-Claimant’s software being unable to cope with the problem of harmonization of both banks accounts after the merger.
For these reason, this Court holds this claim has not been madeout. It ought to fail. It is hereby accordingly dismissed.
In summation, the Counter-Claimant’s Counter Claim fails in its totality and is hereby dismissed. For failing in both substantive suit and the Counter Claim, I award a cost of N15,000.00 against the Defendant/Counter Claimant in favour of the Plaintiff/Defendant.”

Learned Counsel for the appellant argued that the trial Court was wrong not to have decided the issue of public policy raised and joined by the parties in their pleadings, that the defence of public policy is the only defence the respondent raised against the counter-claim, that it is a special defence that if the defence does not avail the respondent then the counter-claim should succeed, that injustice will be occasioned to the appellant, if after proving his case of negligence against the respondent, it is denied the reliefs counter-claimed for on ground of public policy, that the appellant proved its counter-claim and that the appellant claimed for damages which the trial Court erroneously misconstrued to be special or liquidated damages.

Learned Counsel for the respondent did not respond to this argument.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Let me now determine the merits of the above arguments of Learned Counsel for the appellant.

It was the respondent who asserted in paragraph 23(1) of his 2nd statement on oath that it is against public policy for a party to seek to recover its costs of hiring counsel to defend a suit and that such a claim is illegal. The respondent who raised it at the trial has not complained about the trial court not considering it. It is curious that it is the appellant who did not raise it that is complaining about the court not determining that issue and gone ahead to dwell at length discussing the law on the application of public policy in administration of justice. It had elaborately argued in the trial Court that public policy cannot apply to deprive a party of his right under the law. It is glaring from the above reproduced judgment of the trial Court that it preferred to determine the merit of the counter-claim rather than dwell on the issue of applicability of public policy. It held that the counter-claim was bound to fail as it was not proved. The appellant has rather dwelt on restating the law on why public policy should not apply to defeat theircounter-claim instead of showing that the decision of the trial Court that the counter-claim was not proved is wrong. The entire arguments of the appellant under this issue does not address the decision of the Trial Court on the merit of the counter claim and serve no useful purpose in this appeal. In any case, the failure of the counter-claim is the obvious and necessary consequence of the success of the respondent’s claim.
As it is, I resolve issue No. 9 in favour of the respondent.
On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The appellant shall pay costs of N400,000.00 to the respondent.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Emmanuel AkomayeAgim, JCA.

I am in agreement with the reasoning and the conclusion of my learned brother which I adopt as mine.
I too do dismiss this appeal for lacking in merit. I abide by the order as to costs.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Emmanuel AkomayeAgim, JCA, just delivered.

I agree with thereasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

I.H. Yamah Esq.For Appellant(s)

Victor Abasiakan-Ekim Esq.For Respondent(s)