POLARIS BANK LTD v. ATOGUN
(2020)LCN/15326(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, July 23, 2020
CA/L/67/2017
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
POLARIS BANK LIMITED APPELANT(S)
And
ODAFE ATOGUN RESPONDENT(S)
RATIO
THE ESSENTIAL INGREDIENTS OF ACTIONABLE NEGLIGENCE
The essential ingredients of actionable negligence have been settled beyond peradventure by a plethora of authorities. The ingredients are:
1. The existence of a duty to take care owed to the complainant by the defendant.
2. Failure to attain that standard of care prescribed by law.
3. Damages suffered by the complainant, which must be connected with the breach of duty to take care.
Once these ingredients are established at a hearing, then the defendant will be held liable in negligence. See MAKWE vs. NWUKOR (2001) LPELR (1830) 1 at 20-21, AGBONMAGBE BANK LTD vs. CFAO (1966) LPELR (25282) 1 at 10, BRITISH AIRWAYS vs. ATOYEBI (2014) LPELR (23120) 1 at 64-65, U. T. B. vs. OZOEMENA (2007) LPELR (3414) 1 at 14, NGILARI vs. MOTHERCAT LTD (1999) LPELR (1988) 1 at 35 and ABUBAKAR vs. JOSEPH (2008) LPELR (48) 1 at 31. PER OGAKWU, J.C.A.
WHETHER OR NOT THERE SHOULD BE GENERAL TRAVERSE IN RESPECT OF ESSENTIAL AND MATERIAL ALLEGATION
It is trite that in respect of essential and material allegation, there should be no general traverse but they should be specifically transversed.[sic]
A denial of a material allegation of fact must not be general or evasive but specific. Every allegation of fact if not denied specifically or by necessary implication shall be taken as established at the hearing.
See: OSHODI V EYIFUNMI (2000) 13 NWLR (PT. 684) 298 at 337 paragraph B per IGUH JSC. PER OGAKWU, J.C.A.
EFFECT OF FAILURE TO CROSS-EXAMINE A WITNESS UPON A PARTICULAR MATTER
It is hornbook law 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: GAJI vs. PAYE (2003) LPELR (1300) 1 at 20, AKANMODE VS. DINO (2009) ALL FWLR (PT. 471) 929, IBE VS. IGBOKWE (2012) LPELR (15351) 1 at 54 and PASCUTTO vs. ADECENTRO NIG LTD (1997) LPELR (2904) 1 at 32-33. PER OGAKWU, J.C.A.
WHETHER OR NOT THE COURT CAN AWARD GENERAL AND SPECIAL DAMAGES IN DESERVING SITUATIONS
It seems to me rudimentary law that even though the law guards against double compensation, the principle does not rule out the award of both general and special damages in deserving situations. Thus, where a party is able to show, or where it is evident from the diacritical circumstances of the case and nature of injury suffered by the party, that special damages would not adequately compensate for all the loss; the Court must award both special and general damages and it would not amount to double compensation. See ODINAKA vs. MOGHALU (supra), SPDC NIG vs. OKONEDO (2008) 9 NWLR (PT. 1091) 85 at 125, MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 61-67 and A. E. BRIGHT FUTURE MOTORS (NIG) LTD vs. CHIZOBA (2017) LPELR (42828) 1 at 26. PER OGAKWU, J.C.A.
WHETHER OR NOT AWARD OF DAMAGES IS BASED ON THE DISCRETION OF THE TRIAL COURT
The issue of award of damages in any given case is a matter based on the discretion of the trial Court. See YALAJU-AMAYE vs. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD (1990) LPELR (3511) 1 at 47, ROCKONOH PROPERTY CO. LTD vs. NITEL PLC (2001) LPELR (2951) 1 at 11-12, HAMZA vs. KURE (2010) LPELR (1351) 1 at 28-29 and OKOKO vs. DAKOLO (2006) LPELR (2461) 1 at 39.
In DIAMOND BANK PLC vs. WELLCARE ALLIANCE LTD (2015) LPELR (40762) at 27-28, this Court, per Abba Aji, JCA (now JSC) stated:
“The law is trite that where general damages are claimed if the issue of liability is established as in the present case, the trial judge is entitled to make his own assessment of the quantum of such general damages and on appeal, such damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely erroneous estimate of the damages to which the plaintiff is entitled.”
See also KUPOLATI vs. MTN NIGERIA COMMUNICATIONS LTD (2020) LPELR (49538) 1 at 13-14.
The assessment of the quantum of general damages is at the discretion of the Judge at nisi prius. Judicial discretion is a vital tool in the administration of justice. Judicial discretion is a sacred power which inures to a Judge. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Lagos State in SUIT NO. LD/1255/2009: MR. ODAFE ATOGUN vs. SKYE (POLARIS) BANK PLC. The facts which led to the action at the lower Court as gleaned from the Records show that the Respondent was sent money from Ireland through Western Union Money Transfer. The instructions were that the money was to be paid in Abuja, Nigeria. When the Respondent went to collect the money, it transpired that the Appellant had paid the money to an impostor in Benin, Nigeria. The Respondent contending that the Appellant was negligent by paying the money to an impostor instituted the action at the lower Court, claiming the following reliefs:
“i. The sum of U.S. $1,064.81 (One Thousand and Sixty-Four United States Dollars, Eighty-one Cents) being the remaining balance due from the Defendant to the Claimant as at the 28th of May, 2009 at the exchange rate of U.S. $1.4245 (One United States Dollars, Four Thousand, Two Hundred and Forty-Five Cents) to €1 (One Euro) and or such other sum as this Honourable Court may adjudge the Claimant to be entitled to.
ii. Interest on the sum in (i) above at the rate of 21% per annum from the 4th of November 2008 until judgment is entered and thereafter at the rate of 10% until final liquidation.
iii. Interest on the U.S $7,482.19 (Seven Thousand, Four Hundred and Eighty-Two United States Dollars, Nineteen Cents) paid to the Claimant at the rate of 21% per annum from 4th of November 2008 until the 28th of May, 2009.
iv. General damages in sum of N100,000,000.00 (One Hundred Million Naira) for loss of business expectation, inconvenience and physical, mental as well as emotional stress caused to the Claimant as a result of the Defendant’s neglect in paying the sum of €6,000 (Six Thousand Euros) to the impostor and delaying payment to the Claimant.
v. Special damages of N196,058.50 (One Hundred and Ninety-Six Thousand, Fifty-Eight Naira, Fifty Kobo) as follows:
a. Cost of sending 3 (three) letters to the Defendant by courier at N2992.50 each totalling N8,977.50 (Eight Thousand, Nine Hundred and Seventy-Seven Naira, Fifty Kobo).
b. Cost of Air Flights to and from Dublin, Ireland in the sum of N141,081.00 (One Hundred and Forty-One Thousand, Eighty-One Naira).
c. Costs of Air Flights to and from Lagos where the Defendant’s head Office is located in the sum of N46,000 (Forty-Six Thousand Naira) in a bid to recover the sum of €6,000 (Six Thousand Euros) and other losses incurred by the Claimant
vi. Cost of this action.”
Issues were joined on the pleadings filed and exchanged by the parties and the matter was subjected to a full dressed hearing where the parties adduced testimonial and documentary evidence. At the end of the trial, the lower Court entered judgment in favour of the Respondent for some of the reliefs claimed. The Appellant was dissatisfied with the judgment and appealed against the same by Notice of Appeal filed on 12th May, 2016. The judgment of the lower Court which was delivered on 28th April, 2016 is at pages 414-451 of the Records. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 14th February, 2019, but deemed as properly filed on 25th June, 2020.
In prosecution of the appeal, the Records of Appeal were compiled and transmitted and the parties filed and exchanged briefs of argument, which learned counsel adopted and relied upon at the hearing of the appeal. The relevant briefs are the Amended Appellant’s Brief filed on 14th February 2019 and the Amended Respondents’ Brief filed on 20th February 2019. Both briefs were deemed as properly filed on 25th June 2020. The Appellant formulated five issues for determination, namely:
“1. Whether the Learned Trial Judge was wrong to have held that the Appellant was negligent in paying out the sum of €6000 (Six Thousand Euros) to alleged impostor at its Forestry Road Branch, Benin City (Ground 1).
2. Whether the Learned Trial Judge was wrong to have relied on the Central Bank of Nigeria Report which stated that the Appellant was Negligent in arriving at her decision that the Appellant was negligent in paying out the sum of €6000 (Six Thousand Euros) to alleged impostor at its Forestry Branch, Benin City (Ground 2).
3. Whether the Learned Trial Judge wrongly held that the Appellant ought to have produced but did not produce the result of investigation from the CCTV footage and driver’s licence of the Odafe Atogun who received the money from the Appellant’s Forestry Branch Benin City. (Ground 3).
4. Whether the Learned Trial Judge was wrong to have granted reliefs (i), (ii), (iii), (v) in full while also granting relief (iv) in part in favour of the Respondent in the circumstances of this case.
5. Whether the Judgment of the Learned Trial Judge was against the weight of evidence. (Ground 5).”
On his part, the Respondent identified two issues for determination, as follows:
“1. HAVING REGARDS TO THE TOTAL EVIDENCE BEFORE THE TRIAL JUDGE, WAS THE COURT RIGHT WHEN IT FOUND THAT THE APPELLANT HEREIN SHIRKED ITS DUTY OF CARE TO THE RESPONDENT WHEN IT PAID THE SUM OF €6,000 [SIX THOUSAND EUROS] TO SOME PERSON OTHER THAN THE RESPONDENT AND THEREBY DEPRIVED THE RESPONDENT OF THE USE OF HIS MONEY? [Ground 1, 2, 3 AND 5];
2. WHETHER THE LEARNED TRIAL JUDGE CORRECTLY APPLIED THE RELEVANT PRINCIPLES IN MAKING THE AWARD OF DAMAGES AND INTEREST IT MADE IN FAVOUR OF THE RESPONDENT. [Ground 4];”
The issues for determination as distilled by the Respondent are succinct and apt. Indeed the said issues are distensible as they encompass and encapsulate the five issues the Appellant nominated for determination. I will therefore use the issues crafted by the Respondent as the cicerone for the consideration and resolution of this appeal.
ISSUE NUMBER ONE
HAVING REGARDS TO THE TOTAL EVIDENCE BEFORE THE TRIAL JUDGE, WAS THE COURT RIGHT WHEN IT FOUND THAT THE APPELLANT HEREIN SHIRKED ITS DUTY OF CARE TO THE RESPONDENT WHEN IT PAID THE SUM OF €6,000 [SIX THOUSAND EUROS] TO SOME PERSON OTHER THAN THE RESPONDENT AND THEREBY DEPRIVED THE RESPONDENT OF THE USE OF HIS MONEY?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant’s submissions herein span issue numbers 1, 2, 3 and 5 as distilled by the Appellant. The Appellant submits that in order to succeed in an action based on negligence, it must be pleaded and proved that the defendant owed the claimant a duty of care, that the defendant breached the said duty of care and that the claimant suffered damages as a result of the breach of the duty of care. The Respondent, it was contended did not prove the essential elements and was therefore not entitled to the award of damages. The cases of AGBONMAGBE BANK vs. CFAO (1966) 1 SC 367, UTB vs. OZOEMENA (2007) 3 NWLR (PT 1022) 448 and the legal text, ‘Clerk and Lindsell on Torts’ 14th Edition, page 474 were referred to.
The Appellant maintained that it was not negligent in the circumstances of this matter as it followed the extant Western Union Nigeria Pay Out Procedure Guidelines in making the payment to the beneficiary. It was posited that the Western Union Guidelines for payment was not pay out specific location compliant all the time and that the Appellant was not negligent by paying the beneficiary in its Benin branch instead of in Abuja.
It was argued that the Court should take judicial notice of the fact that banks relax the rules as to banking hours and attend to customers after the closing time; and therefore the fact that the Western Union Transfer was paid to the beneficiary in Benin after the usual banking hours was not a pointer to the Appellant’s negligence.
The Appellant contended that the judgment of the lower Court did not exfacie show how the Respondent established the three essential elements of negligence. The judgment was therefore said to fall short of what can be sustained on appeal vide OGUEBEGO vs. PDP (2016) 4 NWLR (PT 1503) 446. It was further contended that it was wrong of the lower Court to have relied on and referred to the written address of counsel, instead of credible evidence as the basis for its conclusion. The written address, it was stated, cannot take the place of evidence. The case of ADEGBITE vs. AMOSU (2016) 15 NWLR (PT 1536) 405 was called in aid.
It was further submitted that the lower Court was wrong to rely on the CBN Report and that the judgment of the lower Court was against the weight of the evidence as the Appellant’s evidence showed that the Appellant acted in the way a reasonable person would have acted in the circumstances and therefore cannot be liable for negligence. The case of AGI vs. ACCESS BANK PLC (2014) 9 NWLR (PT 1411) 121 at 154 was relied upon. The judgment of the lower Court, it was asserted, did not bring to the fore what the Appellant omitted or failed to do as a reasonable person.
The Appellant forcefully argued that the lower Court was wrong to rely on the Central Bank of Nigeria Investigation Report, which was not put to the test of veracity, credibility and conclusiveness, to hold the Appellant negligent. Sections 69 and 73 of the Evidence Act and the case of TUAH vs. MICHAEL (2010) 10 NWLR (PT 1203) 519 at 519 at 534 and 543 were referred to. The Appellant further faulted the Central Bank of Nigeria Investigation Report for not specifying or explaining the internal control procedures of the bank, Western Union and Central Bank Guidelines which were not followed, and therefore the said Report failed to give reasons for its decision as legally required. The cases of IMOGIEMHE vs. ALOKWE (1995) 7 NWLR (PT 409) 581 and SANUSI vs. AMEYOGUN (1992) 4 NWLR (PT 237) at 26-27 were cited in support.
The Appellant stated that the production of the CCTV footage, driver’s license and picture of the person who was paid the money in Benin, would not have answered the question of who disclosed the control number, especially as the driver’s license was tendered in evidence and the main issue was whether the Appellant was negligent. It was posited that the lower Court did not confine itself to the issues and proceeded on the wrong premise by considering irrelevant facts. The case of OGUEBEGO vs. PDP (supra) was called in aid.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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SUBMISSIONS OF THE RESPONDENT’S COUNSEL
It is the submission of the Respondent that where the action of contracting parties causes loss or injury to a third party through negligence, then the third party being the neighbour within the contemplation of the defendant can sue in tort vide ABUSOMWAN vs. MERCANTILE BANK LTD NO.2 (1987) 3 NWLR (PT 59) 196. It was stated that the Respondent pleaded and gave particulars of negligence and testified in respect thereof and was not cross examined on the particulars of negligence, thus leaving his evidence unchallenged.
It was maintained that the facts showed that the Appellant owed a duty of care to the Respondent, such that it would be reasonably expected that carelessness on the part of the Appellant would likely cause the Respondent damages. The case of BOUYGUES (NIG) LTD vs. O. MARINE SERVICES LTD (2013) 3 NWLR (PT 1341) [no page stated] was referred to. It was contended that a bank which makes payment of a person’s money to another person without proper inquiry would have failed in the duty of care owed to the owner of the funds. The case of SAVANNAH BANK (NIG) LTD vs. S. O. O. CORPORATION (2001) 1 NWLR (PT 693) 194 at 206-207 was relied upon.
The Respondent stated that the lower Court did not find the Appellant’s witness as a truthful witness, and it was maintained that the Appellant failed in its duty of care as borne out by the manner in which it paid out the money without regard to the instructions given by the sender of the money. The findings made by the lower Court on the evidence, it was asserted, cannot be faulted. It was opined that the mere admission that the Respondent’s money was paid to a wrong person by the Appellant was proof of a breach of the duty of care on the principle of res ipsa loquitur. The Respondent, it was stated, still adduced evidence to show the breach of the duty of care.
It is the further submission of the Respondent that the lower Court was correct in according probative value to the CBN Report, Exhibit CW8, and that the Appellant could not fault the reliance by the lower Court on the findings made by the statutory regulatory body of the Appellant, which findings were not impugned. Sections 69 and 73 of the Evidence Act were said to be inapplicable, and it was asserted that the Respondent made out his case for breach of duty of care as a result of the Appellant’s negligence. The cases of LOCHGELLY IRON & COAL CO vs. M. MULLAN (1934) AC 1 at 25 and OKWEJIMINOR vs. GBAKEJI (2008) 5 NWLR (PT 1079) 172 at 217 and 218 were cited in support. It was conclusively submitted that the significant facts pleaded and the evidence adduced established that the Appellant owed the Respondent a duty of care, which duty the Appellant breached.
RESOLUTION OF ISSUE NUMBER ONE
The crux of the contestation in this issue number one is whether the lower Court was correct in its decision that the evidence adduced established that the Appellant was negligent in the manner in which it paid the funds transferred for the benefit of the Respondent through Western Union to an impostor. The salient facts of this matter reveal that the Respondent’s business partner based in Ireland transferred the sum €6, 000.00 (Six Thousand Euros) through Western Union to the Respondent. He specified that the money was to be paid to the Respondent in Abuja. At the time the transfer was made by the Respondent’s business partner in Ireland, it was already close of banking hours in Nigeria. The Respondent went to collect the money the next day but could not be paid; he later discovered that the Appellant had paid the money to an impostor after close of normal banking hours, the same day the money was transferred from Ireland. The Respondent made a complaint to the Central Bank of Nigeria which after its investigation held that the Appellant was negligent and ordered it to pay the money transferred to the Respondent. The Appellant paid the Respondent the amount it computed as the United States Dollar equivalent of €6, 000.00 (Six Thousand Euros). The Respondent, inter alia, sued claiming damages for negligence and the outstanding balance based on the correct exchange rate between the United States Dollar and Euro, at the material time.
The Respondent’s cause of action at the lower Court was predicated on the tort of negligence. The essential ingredients of actionable negligence have been settled beyond peradventure by a plethora of authorities. The ingredients are:
1. The existence of a duty to take care owed to the complainant by the defendant.
2. Failure to attain that standard of care prescribed by law.
3. Damages suffered by the complainant, which must be connected with the breach of duty to take care.
Once these ingredients are established at a hearing, then the defendant will be held liable in negligence. See MAKWE vs. NWUKOR (2001) LPELR (1830) 1 at 20-21, AGBONMAGBE BANK LTD vs. CFAO (1966) LPELR (25282) 1 at 10, BRITISH AIRWAYS vs. ATOYEBI (2014) LPELR (23120) 1 at 64-65, U. T. B. vs. OZOEMENA (2007) LPELR (3414) 1 at 14, NGILARI vs. MOTHERCAT LTD (1999) LPELR (1988) 1 at 35 and ABUBAKAR vs. JOSEPH (2008) LPELR (48) 1 at 31.
The lower Court found and held that the Appellant was negligent and accordingly entered judgment in favour of the Respondent. An important consideration that arises in an action founded on negligence is whether as between the alleged wrongdoer (in this case, the Appellant) and the person who has suffered damages (the Respondent herein), there is sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may likely cause damage to the latter: ABUBAKAR vs. JOSEPH (supra) and ABUSOMWAN vs. MERCANTILE BANK OF NIG LTD (supra). The lower Court at page 441 of the Records stated as follows:
“… the Claimant strictly speaking is not a party to the Contract, however, he was a beneficiary who the Parties owe duty of care arising from proximity in law or fact.”
The Appellant has not challenged this finding of the lower Court that it owed a duty of care to the Respondent. Thus, since one of the essential ingredients in an action founded in negligence and held to have been established by the lower Court has not been challenged on appeal, the said finding remains binding and its correctness cannot be questioned: COMMERCE ASSURANCE LTD vs. ALLI (1992) 3 NWLR (PT 232) 710, YESUFU vs. KUPPER INTERNATIONAL (1996) 5 NWLR (PT 446) 17, P. N. UDOH TRADING CO. LTD vs. ABERE (2001) 11 NWLR (PT 723) 114 at 146, OLUKOGA vs. FATUNDE (1996) LPELR (2623) 1 at 8, FBN PLC vs. OZOKWERE (2013) LPELR (21897) 1 at 20 and FIRST DEEPWATER DISCOVERY LTD vs. FAICECK PETROLEUM LTD (2020) LPELR (49783) 1 at 27.
The lower Court after due evaluation of the evidence and ascription of probative value thereto held that the Appellant’s witness was not a truthful witness and that the Appellant failed to produce and tender the Report of the internal investigation it carried out, including the CCTV footage. The lower Court equally relied on the Report of the investigation into the matter carried out by Central Bank of Nigeria and then conclusively held as follows at page 449 of the Records:
“There is overwhelming evidence of sufficient relationship of proximity and neighbourhood between both parties.
There is also unchallenged proof that the Defendant’s conduct was careless. It goes without saying that the Defendant’s action failed to measure up to the standard set by the Western Union Money Transfer, negligence is thereafter established, as buttressed by Central Bank Report.”
The Appellant has faulted the lower Court’s reliance on the Central Bank Report, arguing that the said Report was not put to the test of veracity, credibility and conclusiveness in order to ground that the Appellant was negligent. I am unable to fathom the basis for this contention. Based on the Respondent’s complaint to the Central Bank of Nigeria, the Appellant’s regulatory and supervisory authority, the Central Bank, instituted an inquiry into the complaint. The Appellant submitted itself to the said inquiry and made its representation thereat. At the end, the Central Bank inquiry found that the Appellant was negligent in the manner in which it paid out the Western Union Money Transfer meant for the Respondent to an impostor. It ordered the Appellant to make good the money it negligently paid to the impostor to the Respondent. The Appellant did not challenge the decision of the Central Bank. Infact, it accepted the decision and in compliance with the order to make good the money, it paid the Respondent the sum of $7,482.19. I find no rational basis on which the Appellant can now contend that the Report of the Central Bank, which it had accepted, obeyed and compiled with, was wrongly relied upon by the lower Court because the said Report neither justified nor substantiated the conclusion therein that the Appellant was negligent in the handling of the Western Union Money Transfer meant for the Respondent. If the Central Bank Report had the flaw which the Appellant complained of, then it ought to have challenged the same, which it did not do. It accepted and followed the said Report in due obeisance and complied with it to the letter. It is an afterthought for the Appellant to contend as it did in paragraph 5.11 of the Amended Appellant’s Brief that:
“… it only agreed to make payments in refund of the €6000 to the Respondent to bring a closure to the matter and in deference to the Central Bank of Nigeria.”
The Appellant’s contention on the finding of the lower Court on the consequences of the Appellant having failed to tender the report of the internal investigation it carried out on how the money transferred for the benefit of the Respondent was paid to an impostor by the Appellant is vainglory. The lower Court did not proceed on any wrong premise or consider irrelevant facts. At the core of the disceptation is the payment of money, meant to be collected by the Respondent at Abuja, to an impostor at the Appellant’s Forestry Road Branch, Benin. The Appellant stated that it conducted internal investigations to unravel how this happened. The internal investigation report, CCTV footage and the identification documents presented by the impostor on the basis of which the Appellant paid him were material and central to the inquiry in order to ascertain if the Appellant was negligent. The lower Court was consequently justified in holding at page 445 of the Record thus:
“It is rather surprising why the result of the very important investigation which would have shown the face and person of the ODAFE ATOGUN who collected the money on 3rd November, 2008 was not disclosed.
For reasons best known to the Defendant, the Report was not released or submitted and the DW could not recollect although ‘their condition are evident in their position.’
As stated earlier in this Judgment, this position was not laid before the Court.”
If I must add, the circumstances were such for Section 167 (d) of the Evidence Act to have been invoked and applied. The Appellant withheld the internal investigation report and did not produce and tender the same because if it did it would have been unfavourable to its case. See ONWUJUBA vs. OBIENU (1991) 4 NWLR (PT. 183) 16, NSC (NIG) LTD vs. INNIS-PALMER (1992) 1 NWLR (PT. 218) 422 and EKWEOZOR vs. REGD TRUSTEES OF THE SAVIOUR’S APOSTOLIC CHURCH OF NIGERIA (2020) LPELR (49568) 1 at 66 -67.
I have insightfully considered the facts of this matter vis-a-vis the instructions given by the sender of the money transferred, as a guide for payment to the beneficiary. Quite apart from the fact that the money was paid after close of banking hours, in fact banking hours in Nigeria having closed even before the money was transferred from Ireland, the payment instructions stated the location where payment was to be made as Abuja. It further stated the telephone number of the beneficiary, ODAFE ATOGUN. These are details that are perfunctorily rudimentary that no reasonable person would make payment where the details do not match. It cannot be contemplated that a reasonable banker would in the circumstances, make payment at a location different from the one instructed; or to a “beneficiary” that supplied a telephone number different from the one given by the sender of the money. The Appellant’s contention that the location was not sacrosanct cannot be sustained in the light of EXHIBIT CW15, the Central Bank of Nigeria Circular dated October 10, 2008 titled “Additional Information Requirements and Directive on Western Union Money Transfer Operations in Nigeria” (See page 39 of the Records). The said Circular is explicit that “Funds transferred shall only be collected in the designated town for payment and nowhere else.” The payment to the impostor by the Appellant was made on 3rd November, 2008, about four weeks after the said Central Bank Circular of October 10, 2008 (Exhibit CW15). Breviloquently, it cannot be oppugned that the manner in which the Appellant handled the payment of the Western Union Money Transfer was characterised by rhathymia which is symptomatic of and consistent with crass negligence, which is unbecoming of a banking institution. By all odds, the lower Court having found that Appellant owed a duty of care to the Respondent was right in finding that the Appellant breached the duty of care it owed to the Respondent. It remains to consider if the lower Court was correct in the damages it awarded consequent upon the breach of the duty of care. This is the fulcrum of the next issue which we now turn our attention to.
ISSUE NUMBER TWO
WHETHER THE LEARNED TRIAL JUDGE CORRECTLY APPLIED THE RELEVANT PRINCIPLES IN MAKING THE AWARD OF DAMAGES AND INTEREST IT MADE IN FAVOUR OF THE RESPONDENT.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that liability for damages only arises if the Appellant was negligent. It was contended that since the lower Court was wrong in finding the Appellant negligent, the special and general damages awarded cannot stand. The cases of ODULAJA vs. HADDAD (1973) 11 SC 357 and OSUJI vs. ISIOCHA (1989) 3 NWLR (PT. 111) 623 were referred to.
The Appellant posited that the Respondent had the burden of proving the exchange rate of the United States Dollar to Euro on which he predicated his cause of action, but that he did not call credible evidence to discharge the burden vide OKECHUKWU & SONS vs. NDAH (1967) NMLR 386, NGILARI vs. MOTHERCAT LTD (1999) 13 NWLR (PT. 363) 626 and THE PERMANENT SECRETARY, FEDERAL MINISTRY OF EDUCATION vs. AKINLOYE (2000) 14 NWLR (PT. 686) 100 at 105.
It was argued that in the absence of a contract, express or implied, the Respondent was not entitled to interest. Furthermore, that the rate of interest of 21% was not substantiated by evidence to justify the grant of the same.
The cases of GUINNESS (NIG) PLC vs. ONEGBEDAN (2012) 5 NWLR (PT. 1322) [no page stated], NKWO MARKET COMMUNITY BANK (NIG) LTD vs. OBI (2010) 14 NWLR (PT. 1213) at 169 and SANI ABACHA FOUNDATION FOR PEACE & UNITY vs. U.B.A. PLC (2010) 17 NWLR (PT. 1221) 192 at 208 were relied upon.
It is the further contention of the Appellant that the sum of N10Million awarded as damages by the lower Court was excessive and cannot be justified. The award of the same was said to be a duplication of relief (i) already granted and therefore amounts to double compensation. It was stated that the Appellant had already refunded the Respondent the sum due to him, thereby putting him in the position he would have been if the alleged negligent act had not happened and that there was therefore no justification for the award of excessive general damages, particularly as there was no proof of the inconvenience, physical, mental or emotional stress which the Respondent claimed to have suffered. The cases of IMNL vs. NWACHUKWU (2004) 13 NWLR (PT. 891) 543 and FBN PLC vs. ASSOCIATED MOTORS COMPANY LTD (1988) 10 NWLR (PT. 570) 441 at 464 were cited in support.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
It is the submission of the Respondent that at the time the Appellant paid the equivalent of the Euro that was transferred to the Respondent, there was a shortfall in the amount paid based on the exchange rate used and that the pleading and evidence in this regard was neither denied, challenged nor controverted by the Appellant vide ODINAKA vs. MOGHALU (1992) 4 NWLR (PT. 233) 1 at 13. It was stated that being a banking transaction, the lower Court rightly awarded interest for the period that the Appellant retained the shortfall. The cases of SANI ABACHA FOUNDATION FOR PEACE & UNITY UBA (2010) LPELR 3002, LONDON CHATTAM & DOVER RLY vs. S.E. RAILWAY (1893) AC 429 at 464, MTN (NIG) COMM. LTD vs. WIG. T & INVESTMENT LTD (2013) 4 NWLR (PT. 1344) 276 at 298-299, AIB LTD vs. IDS LTD (2012) 17 NWLR (PT. 1328) at 50 and N.G.S.C. LTD vs. NPA (1990) 1 NWLR (PT. 129) 741 at 748 were called in aid.
It was asserted that the evidence adduced by the Respondent showed the stress, anguish and inconvenience he went through before he retrieved his money from the Appellant. The amount awarded as damages was said not to be unreasonably large to warrant interference by this Court. The case of EZE vs. LAWAL (1997) 2 NWLR (PT. 487) 333 at 347 was referred to. It was conclusively submitted that the claim for special damages was carefully and meticulously set out in the pleadings and documents in proof thereof were tendered and admitted in evidence vide OSHINJINRIN vs. ELIAS (1970) ANLR 158 at 161. It was opined that since the lower Court applied the correct principles of law in the award of damages, the same should not be disturbed.
RESOLUTION OF ISSUE NUMBER TWO
In resolution of issue number one, I held that the Appellant owed the Respondent a duty of care and that it breached the said duty of care. This being so, the Respondent became entitled to damages suffered which must be connected with the said breach of the duty to take care: MAKWE vs. NWUKOR (supra). It has to be remembered that the Central Bank of Nigeria after its investigation ordered the Appellant to pay the €6,000.00 transferred for the benefit of the Respondent to him. It was in compliance with this order that the Appellant paid the sum of $7,482.19 to the Respondent as the equivalent of €6,000.00 as at 28th May, 2009 when the payment was made. The Respondent’s relief (i) is simply that $7,482.19 was not the US Dollar equivalent of €6,000.00 as at the said date and that based on the regnant exchange rate as at that date there was a shortfall of $1,064.81. It is this shortfall and interest thereon that have been claimed as reliefs (i) and (ii). The Respondent also claims interest on the $7,482.19 from when the money should have been paid to him to when it was paid, id est, 4th November, 2008 to 28th May, 2009. This is relief (iii).
In holding that the Respondent had proved reliefs (i), (ii) and (iii), the lower Court stated:
“There is evidence before this Court admitted by both Parties that the Banking transaction the subject matter of this action was on 3rd November, 2008.
The money was eventually paid to the Claimant on 28th May, 2009.
This was about six (6) Months thereafter.
The Claimants money was in possession of the Defendant since 3rd November, 2008 till 28th May, 2009 without the permission or consent of the Claimant.
There is evidence to show that several efforts were made by the Claimant to ensure the payment of the money.
Money was eventually paid as stated earlier in the Month of May, 2009.
The Defendant is a Banking Institution. The claim of the Claimant regarding exchange rate would require a specific response from the Defendant.
It is trite that in respect of essential and material allegation, there should be no general traverse but they should be specifically transversed.[sic]
A denial of a material allegation of fact must not be general or evasive but specific. Every allegation of fact if not denied specifically or by necessary implication shall be taken as established at the hearing.
See: OSHODI V EYIFUNMI (2000) 13 NWLR (PT. 684) 298 at 337 paragraph B per IGUH JSC.
The Claimant specifically claimed pre and post judgment interest. It is settled Law that a Claimant is entitled to interest in a claim for return of money arising from commercial transactions,where the Defendant has held the money of the Claimant for some time.
The Supreme Court held in SANI ABACHA FOUNDATION FOR PEACE AND UNITY & ORS V UNITED BANK FOR AFRICAN (2010) LPELR 3002 (SC) that Interest may be claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile custom or under a principle of equity such as breach of a fiduciary relationship.
See: LONDON, CHATTAM & DOVER RAILWAY V S.E RAILWAY (1893) AC 429 AT PAGE 434. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it in the Writ and plead facts which show such an entitlement in the Statement of Claim.
In paragraphs 19, 22, 23, and 24 of his Amended Statement of Claim, the Claimant pleaded the circumstances culminating his claims for pre and post judgment interests.
These Claims were pleaded in paragraphs 21, 22, 23 and 24 of the Amended Statement of Claim and apart from a mere denial, the Defendant did no more.
In the case of MTN (NIG) COMM LTD V. WIG.T & INV LTD (2013) 4 NWLR (PT. 1344) 276 AT 298 TO 299. The Court held that ‘Interest may be awarded by a Court in exercise of a discretionary power granted to it by statute.’ Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012 grants a High Court Judge in Lagos such discretionary powers.
In the case of A.I.B LTD V I.D.S LTD (2012) 17 NWLR (PT. 1328) at 50 Paragraphs A-C PER AKIOOLA [sic] JSC
‘It has been held in effect “that in purely commercial transactions a party who holds on to the money of another and keeps it for along [sic] time without any justification and thus deprives that other of the use of funds for the period should be liable to pay compensation by way of interest.’
SEE ALSO: NIGERIA GENERAL SUPERINTENDENCE CO. LTD V NIGERIA PORT AUTHORITY (1900) [sic] 1 NWLR (PT. 180) 7AA1.[sic]
ADEYEMI V LAN & BAKER (NIG) LTD (2000) 7 NWLR (863)33
However, even where interest is not claimed in the Writ of Summons, the Court is entitled in appropriate case, to award interest in the form of consequential order.
SEE: N.G.S.O. LTD V N.P.A. (SUPRA); FERRERO & CO LTD V HENKEL (NIG) LTD (2011) 8 SCM 1 AT 11 (2011) 13 NWLR (P1261) 512.
Further, in the case of HARBUTT’S ‘PLASTICINE LIMITED V WAYNE TANK AND PUMP CORPORATION LTD. (1970) 1 Q.B 447 AT PAGE 468.
Lord Denning M.R. expressed his view thus;
‘It seems to me that the basis of an award of interest is that the Defendant has kept the Plaintiff out of his money and the Defendant has had the use of it to himself. So he ought to compensate the Plaintiff accordingly.’
In view of the above, claims (i) (ii) (iii) have been proved. And I so hold.”
The action at the lower Court was based on the pleadings filed and exchanged by the parties. The Respondent pleaded the rate of exchange of the US Dollar to the Euro as at 28th May, 2009 when the Appellant paid what it stated to be the equivalent of 6,000.00 Euros to the Respondent. The Respondent gave evidence in line with his pleadings. The lower Court is correct that there was no proper traverse of the Respondent’s averments in paragraph 22 of the Statement of Claim. The effect of this is that the facts pleaded are taken as proved. See NBC PLC vs. OLAREWAJU (2007) 5 NWLR (PT. 1027) 255, BRITISH AIRWAYS vs. MAKANJUOLA (1993) 1 NWLR (PT. 311) 276 and NDIC vs. BALONWU (2017) LPELR (41963) 1 at 7-8.
What is more, the Appellant did not cross examine the Respondent on the testimony on the shortfall arising from the exchange rate as deposed to in Paragraphs 22, 23 and 25 of the Respondent’s witness Statement on oath. (See cross-examination at pages 385-388 of the Records). It is hornbook law 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: GAJI vs. PAYE (2003) LPELR (1300) 1 at 20, AKANMODE VS. DINO (2009) ALL FWLR (PT. 471) 929, IBE VS. IGBOKWE (2012) LPELR (15351) 1 at 54 and PASCUTTO vs. ADECENTRO NIG LTD (1997) LPELR (2904) 1 at 32-33.
Let me iterate that the Respondent went to collect the money sent to him from Ireland through Western Union Money Transfer on 4th November, 2008, only for it to transpire that the Appellant had paid the money to an impostor on 3rd November, 2008. The demands made by Respondent on the Appellant to pay the money to him as the actual beneficiary were not honoured, culminating in the Respondent reporting to the Central Bank of Nigeria, which after investigation ordered the Appellant to pay the €6,000.00 to the Respondent. This, the Appellant did on 28th May, 2009, when it paid $7,482.19 which on the evidence established at the lower Court was short of the actual amount by $1,064.81. So for about six months, the Appellant failed to pay Respondent the money transferred to him from Ireland. It is settled law that a Court can grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in this matter, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his judgment. See NPA vs. AMINU IBRAHIM & CO. (2018) LPELR (44464) 1 at 39-40, N. G. S. C. LTD vs. NPA (supra), ADEYEMI vs. LAN & BAKER (NIG) LTD (2000) 7 NWLR (PT 663) 33 at 48, STABILINI VISINONI LTD vs. METALUM LTD (2007) LPELR (8061) 1 at 18-19 and CROWN FLOUR MILLS LTD vs. OLOKUN (2007) LPELR (8534) 1 at 37-38. By all odds, the Appellant having held on to the funds of the Respondent for such a long time, and it had to take compulsion from the Central Bank of Nigeria before the Appellant paid the money; the Respondent was entitled to interest and the lower Court was correct in its decision entering judgment for the Respondent as claimed in reliefs (i), (ii) and (iii).
The Appellant argued, inter alia, that the award of N10 million as general damages by the lower Court amounted to double compensation since the judgment for the payment to the Respondent of the equivalent of the money transferred had put the Respondent in the position he would have been ab initio. It is pertinent to state that the Respondent’s cause of action was in tort and not for breach of contract and even though the rule against double compensation remains the same in both, the principle of restitutio inintegrum is not applied magisterially in situations in tort where special damages alone will not suffice. The Respondent testified as to the nature of injury he suffered and the lengths to which he was compelled to go before he received from the Appellant, the money that was transferred to him.
It seems to me rudimentary law that even though the law guards against double compensation, the principle does not rule out the award of both general and special damages in deserving situations. Thus, where a party is able to show, or where it is evident from the diacritical circumstances of the case and nature of injury suffered by the party, that special damages would not adequately compensate for all the loss; the Court must award both special and general damages and it would not amount to double compensation. See ODINAKA vs. MOGHALU (supra), SPDC NIG vs. OKONEDO (2008) 9 NWLR (PT. 1091) 85 at 125, MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 61-67 and A. E. BRIGHT FUTURE MOTORS (NIG) LTD vs. CHIZOBA (2017) LPELR (42828) 1 at 26. In the peculiar circumstances of this matter, the award of general damages by the lower Court was deserved and it did not amount to double compensation.
The Appellant further contended that the sum of N10 Million awarded as general damages by the lower Court was excessive. The law is settled beyond peradventure that general damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what, in the opinion of a reasonable person, is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act of the defendant. It does not depend upon calculation made and figure arrived at from specific items. The issue of award of damages in any given case is a matter based on the discretion of the trial Court. See YALAJU-AMAYE vs. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD (1990) LPELR (3511) 1 at 47, ROCKONOH PROPERTY CO. LTD vs. NITEL PLC (2001) LPELR (2951) 1 at 11-12, HAMZA vs. KURE (2010) LPELR (1351) 1 at 28-29 and OKOKO vs. DAKOLO (2006) LPELR (2461) 1 at 39.
In DIAMOND BANK PLC vs. WELLCARE ALLIANCE LTD (2015) LPELR (40762) at 27-28, this Court, per Abba Aji, JCA (now JSC) stated:
“The law is trite that where general damages are claimed if the issue of liability is established as in the present case, the trial judge is entitled to make his own assessment of the quantum of such general damages and on appeal, such damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely erroneous estimate of the damages to which the plaintiff is entitled.”
See also KUPOLATI vs. MTN NIGERIA COMMUNICATIONS LTD (2020) LPELR (49538) 1 at 13-14.
The assessment of the quantum of general damages is at the discretion of the Judge at nisi prius. Judicial discretion is a vital tool in the administration of justice. Judicial discretion is a sacred power which inures to a Judge. It is an armour which the judge employs judicially and judiciously in order to arrive at a just decision. In matters of judicial discretion, since the facts of two cases are not always the same, Courts do not make it a practice to lay down rules and principles that would fetter the exercise of its discretion or the discretion of the lower Courts. In matters of discretion, no one case is an authority for the other. Also, the fact that the Appellate Court would have exercised its discretion differently from that of the lower Court is not sufficient reason to interfere with the exercise of discretion by the trial Court. A Court cannot be bound by a previous decision to exercise its discretion in a regimented way because that would be putting an end to discretion. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. No hard and fast rules can be laid down as to the exercise of judicial discretion by a Court, for the moment that is done, the discretion is fettered. See ANYAH vs. AFRICAN NEWSPAPERS (NIG) LTD (1992) LPELR (511) 1 at 20 -21, AJUWA vs. SPDC (2011) 12 SCNJ 596, ADISA vs. OYINWOLA (2000) 10 NWLR (PT. 746) 116, NWADIOGBU vs. ANAMBRA IMO RIVER BASIN DEVT AUTHORITY (2010) 12 SCNJ 212, NNPC vs. CLIFCO NIG LTD (2011) 4 SCNJ 107 at 127-128 and VANDIGHI vs. HALE (2014) LPELR (24196) 1 at 52-53.
Howbeit, the fact that the quantum of damages is at the discretion of the Court does not mean that there are no circumstances when an Appellate Court would interfere with the award of damages. An Appellate Court will interfere with the award of damages by a trial Court in situations which include:
a) Where the Court acted under wrong principles of law.
b) Where the Court acted in disregard of applicable principles of law.
c) Where the Court acted in misapprehension of facts.
d) Where the Court took into consideration irrelevant matters and disregarded relevant matters while considering its award.
e) Where injustice will result if the Appellate Court does not act.
f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damage.
SeeACB LTD vs. APUGO (2001) 5 NWLR (PT 707) 653, UBN LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558, B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62, SPDC LTD vs. TIEBO (2005) LPELR (3203) 1 at 25, ODUWOLE vs. WEST (2010) LPELR (2263) 1 at 15 and KUPOLATI vs. MTN NIGERIA COMMUNICATIONS LTD (supra) at 15-17.
General damages are awarded to assuage a loss caused by an act of the adversary: UBN LTD vs. ODUSOTE BOOK STORES LTD (supra), CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 31, OSUJI vs. ISIOCHA (supra) and ROCKONOH PROPERTY CO. LTD vs. NITEL PLC (supra). In the diacritical circumstances of this matter, the lower Court applied the correct principles of law when it awarded the sum of N10million as general damages. The quantum of damages awarded is not excessive and there is no basis for an appellate Court to interfere. This issue is resolved against the Appellant. The lower Court was not wrong in the reliefs it granted the Respondent, the same having been established by the evidence and also borne out by a proper exercise of judicial discretion.
The issues for determination in this appeal have been resolved against the Appellant. This signposts that the appeal has no scintilla of merit. The appeal accordingly fails and it is hereby dismissed. The decision of the lower Court is hereby affirmed and the Respondent is entitled to the costs of the appeal which I assess and fix at N300, 000.00.
OBANDE FESTUS OGBUINYA, J.C.A.: I was privileged to peruse, in advance, the erudite leading judgment delivered by my learned brother; Ugochukwu Anthony Ogakwu, JCA. I am in total agreement with the reasoning and conclusion in it.
The appellant is a financial institution, in the banking firmament, which enjoys fiduciary confidence of the Nigerian populace. To this end, it should, at all material time, exercise reasonable care and prudence in the management of its pecuniary relationship with its customers. The respondent, the recipient of the money from Ireland, is the ultimate consumer whose interest must be protected by the appellant. The duty of care, to husband the respondent’s funds for his consumption, was eroded when it paid the money to a fraudster. The respondent is entitled to recompense to mitigate the injuries which germinated from the appellant’s unexpected breach of duty. The sum of N10 Million, which the lower Court awarded to the respondent becomes a minuscule amount in the face of the galloping inflation and exponential depreciation of our Naira currency, Ighreriniovo V. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138. The succinct judgment of the lower Court did not, in the least, desecrate the law as to warrant the intervention of this Court.
It is this reason, coupled with the elaborate reasons, garnished with ex cathedra authorities, displayed in the glamorous leading judgment that I too dismiss the appeal in the manner decreed in it.
BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA and I agree with the reasoning contained therein and the conclusion arrived that the Appeal lacks merit.
I too join my learned brother in dismissing this Appeal and I endorse the order of cost made in the lead judgment. Appeal dismissed by me.
Appearances:
A. Owolabi, Esq. For Appellant(s)
Adetunji Oyeyipo, Esq., SAN with him, Nas Ogunsakin, Esq. For Respondent(s)
