In The Court of Appeal of Nigeria
On Friday, the 19th day of January, 2018
Before Their Lordships
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
ACCESS BANK PLC-Appellant
K.C. INTERNATIONAL LIMITED-Respondent
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Imo State High Court in Suit No. HOW/33/2011, delivered on 18/6/2015 by Hon. Justice I.O. Agugua, whereof the learned trial judge gave judgment to the plaintiff, after refusing the application by the Defendant to set aside/nullify the proceedings in the Suit from 16/10/2012 to 16/1/2014, or in the alternative, an order setting aside the order of the Court made on 24/10/13, foreclosing the Defendant from defending the action; and order recalling all the witnesses for Claimant for the purpose of cross examination; an order reopening the case of the defence and allowing the Defendant to call evidence. The trial Court dismissed the said application and proceeded to deliver judgment on the main suit.
At the lower Court, the Claimant (now Respondent) had claimed against the Intercontinental Bank Plc, which later became subsumed in Access Bank Plc (Appellant), as follows (as per the Writ of summons of 31/01/2011:
i) Five Hundred Million Naira special, general and punitive damages for breach of contract unlawful dishonour of cheques, fraudulent infringement of credit and business, fraudulent encumbrance of property, and fraudulent enrichment.
ii) Declaration that the Deed of Legal Mortgage dated 14th January, 2010 and registered as No.36 page 36 Volume 1010, perfected and registered by the Defendant with the Imo State Ministry of Lands, Survey and Urban Planning, is fraudulent, illegal, null and void (pages 1-3 of the Records).
But in the statement of claim, the Respondent claimed as follows:
i) By way of special damages, refund to the Claimant forthwith, the following sums of money:
(a) N1,200,690.00 being the sum lodged into Claimant’s account on 15/2/08 but which Defendant deducted on 6/3/08
(b) N1,086,339.56 being excess interest wrongly overcharged;
(c) N740.000.00 being deduction made by Defendant allegedly for perfection of legal Mortgage;
TOTAL SPECIAL DAMAGES N3,058,430.56 (Three Million, Fifty Eight Thousand, Four Hundred and Thirty Naira, Fifty Six Kobo).
ii) N165,000.000 (One Hundred and Sixty Five Million Naira) general damages for breach of contract, dishonour of claimant’s cheques and fraudulently encumbering claimant’s property No.83 Douglas Road, Owerri.
iii) N300.000.000.00 (Three Hundred Million Naira) punitive damages for fraudulent enrichment at the expense of the Claimant.
iv) Ten percent (10%) interest on the total judgment debt until same is liquidated.
v) Declaration that the Deed of Legal Mortgage, dated 14th January, 2010 and registered as No.36, page 36, Volume 1010, perfected and registered by the Defendant with the Imo State Ministry of Lands, Survey and Urban Planning, is fraudulent, illegal, null and void. (Pages 4 -13 of the Records).
The Defendant filed statement of defence, traversed and denied the claim of the Claimant. The pre-trial conference was held on 22/6/2011 and the trial commenced on 27/9/2011. The Respondent called two witnesses, but due to what Defendant claimed as failure to serve hearing notice, the Defendant and its Counsel, did not attend Court. The Respondent, nevertheless, took its witnesses; close its case and submitted written final address.
By a Motion on Notice, dated and filed on 26/3/2012, the Respondent prayed for order to vary the name of the Defendant on record, to substitute same with Access Bank Plc. It also sought an order amending the processes in the suit to reflect the substitution sought. The motion was granted on 14/6/2012, but Appellant said the respondent failed to amend the pleadings to reflect the new Defendant.
The Defendant (Appellant) filed a motion on 12/3/2014, seeking to set aside/nullify some proceedings of the trial Court, or to allow the Defendant to recall and cross examine the Claimant’s witnesses and to defend the suit. The refusal of that application and the final judgment by lower Court, form the grounds for this appeal, as per the Amended Notice and grounds of appeal filed on 24/5/17, which was deemed duly filed on 7/6/17, disclosing 12 grounds of Appeal.
Appellant filed Brief of arguments on 24/5/17, which was also deemed duly filed on 7/6/17, and distilled 7 issues for the determination of the Appeal, as follows:
(1) What are the legal effects of the Respondent’s failure to file Amended pleadings to reflect the name of Access Bank Plc after the trial Court granted the motion for the substitution and/or amendment (Ground 2).
(2) Whether the Respondent established its
case that the Appellant breached the contract between the parties, wrongfully dishonoured its cheques, fraudulently infringed on Respondent’s credit and business, fraudulently encumbered the Respondent’s property and fraudulently enriched itself. (Grounds 1, 3 and 9)
(3) Whether the Respondent established entitlement to the sum of N65,000.000 (sic) as damages or unjustified breach of contract, dishonour of claimant’s cheques and encumbering of property (Ground 4)
(4) Whether the Respondent proved entitlement to special damages (Ground 5)
(5) Whether the trial Court was right in awarding N30,000.000.00 as punitive damages (Ground 6)
(6) Whether the award of N165,000.000.00 is excessive and amounts to double compensation. (Ground 7)
(7) Whether the trial Court was right in awarding 10% interest on the judgment debt.
Appellant also filed a Reply Brief on 24/3/17, which was also deemed duly filed on 7/6/17. That was in response to Respondent’s Brief, filed on 16/3/17. In the Respondent’s Brief the Respondent adopted the 7 issues, distilled by Appellant for the determination of the Appeal. The
Respondent also filed a preliminary objection on 20/11/17, seeking the striking out of the appeal, on the ground that:
1) The Notice of appeal filed in this appeal, is incompetent, having been, immediately polluted by the inclusion of Grounds of Appeal Nos:10, 11 and 12 in the same, which grounds were filed without requisite leave, first sought and obtained, in breach of Section 242(1) of the 1999 Constitution.
2) Consequent upon the above, an order striking out this entire appeal in limine as the same is incompetent.
IN THE ALTERNATIVE TO PRAYER TWO ABOVE
3) An order striking out grounds 10, and 11, 12 of the Appellant’s Grounds of Appeal as same are incompetent.
4) An order striking out all the issues and arguments contained in the Amended Appellant’s argument’s Brief of Argument relating to the said grounds of appeal or howsoever relating to the subject matter of those ground, to wit: the subject matter of the interlocutory ruling of the trial Court, delivered in this matter on 18/6/2015.
The Respondent listed about 15 grounds to support the application and attached 2 Exhibits. He also filed a list of authorities which looked like an address, as it actually argued the objection. At the hearing, the Respondent argued the preliminary objection and urged us to strike out the appeal.
Appellant’s Counsel replied, orally, to the preliminary objection, saying the preliminary objection was misconceived, because Appellant sought and obtained leave to appeal against the interlocutory ruling of the trial Court. Counsel referred us to the Motion filed on 24/5/17, (Exhibit A) attached to the Preliminary Objection, which application was granted by the Court on 7/6/17 as per the order of Court thereof (Exhibit B). He urged us to dismiss the preliminary objection.
I think the learned Senior Counsel for the Appellant is perfectly correct, that this preliminary objection is misconceived. The Respondent’s Counsel had, himself, exhibited the order of this Court (Exhibit B), which granted the application of Appellant seeking trinity prayers to appeal against the interlocutory ruling of the trial Court delivered on 18/6/15. That application (Exhibit A) was not opposed by the Respondent, when it was moved on 7/6/17, as indicated on the face of the order (Exhibit B) produced by the Respondent. The grounds 10, 11 and 12 of the Appeal, in the Amended Notice of Appeal, filed on 24/5/17, are therefore properly before this Court, and their inclusion in the argument of this appeal, safe and proper.
I think the learned Counsel for the Respondent was not right to say that inclusion of the grounds of appeal originated from the interlocutory Ruling of the trial Court in the Notice of Appeal against the final judgment of the Court polluted the appeal, by reason of non obtaining of leave to appeal against the interlocutory ruling. Even if the Appellant did not obtain leave to appeal against the interlocutory ruling, that failure or error would only operate against the grounds of appeal relating to the interlocutory ruling, not the entire appeal. And such grounds only would be struck out, leaving the other grounds, developed on the final judgment to sustain the appeal. See SPDC Nig. Ltd Vs Onyiriuka & Ors (2016) LPELR 41309 (CA); Nwaolisah Vs Nwabufoh (2011)14 NWLR (Pt.1268) 600. See also the case of Bauchi State House of Assembly & Ors Vs Guyaba (2017) LPELR 43295 CA.
I therefore dismiss the preliminary objection, for lacking in merit.
Arguing the appeal, K.C.O. Njemanze SAN, with him L.A. NJEMANZE Esq (who settled the brief), on issue one, relied on the legal effect of the failure of the Respondent to effect the order amending of the name of the Claimant, granted by the Lower Court on 14/6/12. He said that:
Having granted the new application, it was the duty of the Applicant to file the new process, the amended statement of claim after the order was granted. So the only process which the plaintiff applicant filed and upon which he founded his case was the statement of claim…”
Counsel relied on Motoh Vs Motoh (2011) 16 NWLR (Pt.1274) 474 at 516-517 where it was held:
Even if the lower Court had granted the prayer for substitution, it is observed that both the statement of claim and the statement of defence were not amended to reflect the names of the persons brought into the matter by the substitution. It is only the reply to the statement of defence that carried the new names substituted for MERCY NWOJINI MOTOH, the original Defendant. It is the law that where leave to amend pleading within a stipulated time is granted to a party and the party fails to file an amended pleadings, his case will be considered on the pleading not amended. See Aunam (Nig) Ltd Vs Leventis Motors Ltd (1990)5 NWLR (Pt.151)458.
In the instant case, since the plaintiff had not amended his statement of claim to reflect the new defendants, his case will be considered as though no substitution had taken place and Mercy Nwojini Motoh, though deceased remains the defendant in the case.???
Counsel said based on the above, it was the Respondent’s duty to file an amended writ of summons and amended statement of claim after the trial Court had granted the order; and upon service of the amended processes on the Defendant, the Defendant would amend its statement of defence; he said that having failed, the Respondent ought to have been considered as though no substitution had been granted by the trial Court, and Intercontinental Bank Plc (not Access Bank Plc) remaining as the Defendant in the suit; that the only process the Respondent (as claimant) filed and upon which he founded his case was the statement of claim in which Intercontinental Bank Plc is the defendant. Thus, he said, the trial Court erred in law in entering judgment against Access Bank Plc. He relied on Lawal Vs NEPA (1976) 3 SC 109 at 127.
On issue 2, whether the Respondent established its case that the Appellant breached the contract between the parties, wrongfully dishonoured its cheques, fraudulently infringed on Respondent’s credit and business, fraudulently encumbered the Respondent’s property and fraudulently enriched itself, Counsel answered in the negative and said that the Respondent did not discharge the burden of proving all those allegations. He relied on Sections 131 -137 of the Evidence Act; that he who asserts has the burden of proof. He added that the Respondent had claimed general, special and punitive damages, declaration that the deed of legal mortgage made by the parties, was fraudulent, illegal, null and void, and also the interest on the judgment debt; that in the statement of claim the Respondent had alleged that defendant wrongly deducted money from its account, wrongfully overcharged excess interest, wrongly made deductions for perfection of legal mortgage and VAT; that the Respondent also alleged that the Defendant unjustifiably breached the contract between the parties, unlawfully dishonoured cheques, fraudulently infringed on credit and business, fraudulently encumbered its property and fraudulently enriched itself (pages 4 -13 of the Records), but failed to prove the same by tendering the documents thereof. He relied on Onyenwe Vs Anaejionu (2014) LPELR 22495 (CA); Aregbesola Vs Oyinlola (2011)9 NWLR (Pt.1253) 458 at 562 -563; Idris Vs ANPP (2008) 8 NWLR (Pt.1088) 1 at 97 Mustapha Vs Gamawa (2011) LPELR 9226 CA; Ishaq Vs INEC (2008) LPELR 4336 CA/A/EP/25/08; James Vs INEC (2013) LPELR 20322.
He referred us to the evidence adduced by the parties and submitted that claimant failed to adopt the written statement on oath, thus those depositions cannot be regarded as evidence of PW1 at the trial. Counsel also said that a contract binds the parties to it and the Court, as a Court of law, must always respect the sanctity of the agreement reached by parties and cannot rewrite or make agreement for the parties. Thus, the Court cannot go outside the contract as in Exhibit A to F & W. He relied on Babatunde VS B.O.N. Ltd (2011)11 NWLR (Pt.1279)
738; A.G. Rivers State Vs A.G. Akwa Ibom State (2011)8 NWLR (Pt.1248)31. He added that the law is that when a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning. And when the words of any document/instrument are free from ambiguity, and the circumstances of the same have not created any doubt or difficulty, as to proper application of the words used, such an instrument is always to be construed according to its strict, plain and common meaning of the words, themselves. UBN LTD Vs SAX (Nig) Ltd (1994)8 NWLR (Pt.361)150; UBN Vs Ozigi (1994)3 NWLR (Pt.333) 385; Orji Vs Dorji Textile Mills (2009)18 NWLR (Pt.1173) 467; AG Rivers Vs Akwa Ibom (Supra).
Counsel submitted that by Exhibits A, B, C, D, E and F, the Appellant offered overdraft facilities to the Respondent, which the Respondent duly accepted and signed; that by the acceptance, the Respondent, unequivocally, and unreservedly accepted all the terms and conditions stipulated in the Exhibits A, B, C, D, E & F, which included that the Bank shall charge interest on loan granted at the rate of 21% per annum (floating), and that the agreed interest was subject to upward or downward review, in line with money market realities, as shall be advised by the Bank, from time to time (See Exhibit C).
Counsel said that from the Exhibits C, D and F, it was clear that the Respondent, pursuant to the agreement, encumbered its property at No.83 Douglas Road, Owerri, Imo State, upon executing a Deed of Mortgage (Exhibit W): and the said Exhibit W was duly executed, creating a legal Mortgage over the property at No.83 Douglas Road, Owerri, upon the terms and conditions therein. He said that Exhibit W received the requisite consent of the Governor, and the presumption of correctness and regularity thereof was established, and was not rebutted at the trial. Thus, no extrinsic evidence could be allowed to vary, subtract from or contradict the terms of the written contract in Exhibits A to F and W. He added that a contract which is in writing can only be varied by an agreement in writing, and the latter must be made under seal. AMRIT GOVER VS INTER TEXTILES Ltd (1976)11 SC 19, BALIOL NIG. LTD Vs NAVCON NIG. LTD (2010)16 NWLR (Pt.1220) 619.
Counsel said that the Respondent had introduced extrinsic evidence to the contract between the parties, and had attempted to add to vary, subtract from and/or contradict the terms of Exhibits A, B, C, D, F and W. He referred us to paragraphs 6, 10,11,12,13 and 19 of the deposition of PW1 on pages 16 to 25 of the Records of Appeal.
He relied on Section 128(1) of the Evidence Act and on the cases earlier cited, to reject such evidence.
Counsel also relied on the case ofNAGEBU CO Nig Ltd Vs UNITY BANK PLC (2014) 7 NWLR (Pt.1405) 42 to say that the Bank was entitled to continue to charge interest and even compound interest, on the loan facility, yet to be fully discharged, as per the contract; that the same principles applied to the deductions for perfection of the deed of legal Mortgage and VAT charges. He referred us to Exhibits C,D,E & F, where he said the Respondent had not only agreed to execute the deed of legal mortgage but also authorised the perfection of the same, as per Exhibit W. He said that the Respondent cannot, after the perfection of the deed of legal mortgage and taking the benefit of the transaction, by way of the facilities granted to it, be allowed to resile or approbate and reprobate; he said that the Respondent was by law and agreement, bound to pay all the fees, charges and duties, arising from or connected with the perfection of the deed of legal mortgage; that for VAT charges, the relevant tax laws make deduction of VAT mandatory for all transactions between Bank and customers.
On the qualification of PW2 as expert witness, Appellant said that the witness (PW2) did not tender any document to show he was an expert witness, apart from claiming to be a HND Degree holder in Accounting, a chartered Accountant and a fellow of the Institute of Chartered Accountants of Nigeria (ICAN), and merely adopting his written deposition and identifying Exhibit W. He said that the best evidence is the document of what is stated; that a witness who claims to be a holder of certificates has to produce the certificates to prove his claim, as the certificate is the best proof of his said qualification. He relied on Oparaji Vs Ohanu (1999)9 NWLR (Pt.618) 290 at 307. Counsel said Section 167 (d) of the Evidence Act should be invoked against the Respondent for failure of PW2 to produce the certificates.
Thus, Counsel said the testimony of PW2, including Exhibit
N had no evidential value; that the documents attached to Exhibit N, purported to come from the Central Bank of Nigeria, were not signed and so were worthless. He relied on A.G. Abia State Vs Agharanya (1999)6 NWLR (Pt.607) 362, Anyaoha Vs Obioha (2014)6 NWLR (Pt.1404) 445, FRN Vs Bankole (2014)11 NWLR (Pt.1418) 337. Counsel added that the document (attached to Exhibit N) were public documents and should have been tendered as certified true copies. He relied on Sections 89. 90, 102 and 104 of the Evidence Act; G & T Invest. Ltd Vs WITT & BUSH LTD (2011) 8 NWLR (Pt.1250) 500; Tabik Invest. Ltd Vs GTB Ltd (2011)17 NWLR (PT.1276) 240; Aromolaran Vs Agoro (2014)18 NWLR (Pt.1438) 153.
Counsel further said Exhibit N was not made by PW2, but was signed by one Sir E.O. Mgbemena, who was not called to testify and there was nothing to show he, Sir E.O. Mgbemena, was a chartered accountant or that the firm of Akujobi, Ayininuola & Co was duly registered firm of Chartered Accountants, or that PW2 was a member of the said firm. Thus, the evidence of PW2 and the documents tendered by him, including Exhibit N and the attached documents, had no evidential value.
He relied on Flash Fixed Odds Ltd Vs Akatugba (2001)9 NWLR (Pt.717) 46 at 65, to say that the maker of a document is the proper person to tender it, and if tendered by another person, no probative value should be attached to it. Counsel also relied on Nagebu Co. Nig Ltd Vs UNITY BANK PLC (Supra) Belgore Vs Ahmed (2013)8 NWLR (Pt.1355) 60 at 100; Buhari Vs INEC (2008) 19 NWLR (Pt.1120) 249.
Appellant also picked quarrel with the Exhibit G, saying it was not tendered by an Officer of the Bank, being a Bank statement of account. He relied on Section 90 (1) (e) of the Evidence Act, 2011 on how statement of account can be received in evidence. He also relied on Azubuike Vs Diamond Bank Plc (2014)3 NWLR (Pt.1393)116; Yesufu Vs ACB Ltd (1976)1 All NLR 328; ACB Ltd Vs Oba (1993)7 NWLR (Pt.304)173; P.O. Olatunde & Con Ltd Vs NBN Ltd (1995)3 NWLR (Pt.385)550.
On the dishonoured cheques, Exhibits X and Y, (indicated in Exhibit G), Counsel said that as at the 14/9/2009, when the two cheques were lodged, the account of the Respondent was in the red or debt; that the Respondent was owing the Bank N7, 138,248.47 as at that 14/9/2009 and that by virtue of the Exhibit F, the tenor of the overdraft facility granted to Respondent was 360 days and had lapsed. He said that a Bank is only enjoined to honour cheques by a customer who has sufficient funds in his account to satisfy the cheque issued, and relied on Balogun Vs NBN (1978)3 SC 11; Allied Bank of Nigeria Plc Vs Akubueze (1997)6 NWLR (Pt.509) 374; UBA Vs Chimaeze (2014)9 NWLR (Pt.1411)166.
Counsel also argued that fraud was made an issue in the case and fraud being a criminal offence needed to be proved beyond reasonable doubt; that that was not done by Respondent. He relied on Section 135 (1) of the Evidence Act and the case of Babatunde Vs B.O.N Ltd (Supra); Obitude Vs Onyesom Comm. Bank Ltd (2014) 9 NWLR (1412) 353; Yakubu Vs Jauroyel (2014)11 NWLR (Pt.1418) 205.
On issues 3 and 6 (argued together), whether the Respondent established entitlement to the N165,000.000.00 damages awarded and whether the same was excessive and amounted to double compensation, Counsel answered the 1st part in the negative and the 2nd in the affirmative. Counsel said that Respondent lumped together claims for breach of contract, unlawful dishonour of cheques and fraudulent encumbering property; that that was improper and made the head of claim incompetent. He added that for damages to be recovered by plaintiff, there must be a wrong committed. He relied on UBN PLC Vs Chimaeze (Supra). Counsel relied on the arguments, in issues 1 and 2 to say that the Respondent failed to establish that Appellant committed any wrong against it.
He added that even where a wrong is established damages payable in breach of contract should be such that: (a) may fairly and reasonably be contemplated, either arising naturally, i.e. according to the usual course of things, from such breach of contract, itself or (b) may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Okongwu Vs NNPC(1989) 4 NWLR (Pt.114) 296. He also relied on the case of Osuji Vs Isiocha (1989) 3 NWLR (Pt.11) 623; G.K.F.I. Nig. Ltd Vs NITEL Plc (2009)15 NWLR (PT.1164) 344 on the manner general damages is quantified; that it is at the discretion of the trial Court, which must be properly exercised. He said that the Respondent was not entitled to the
N165,000,000.00 awarded and that the amount was excessive, extravagant, baseless and unreasonable. He relied on ACME Builders Ltd. Vs Water Board (1999)2 SCNJ 421; SWISS Nigeria Wood Ind. Vs Bogo (1970) NSC 235. He also relied on UBN Plc Vs Chimaeze (Supra) where, he said, the Supreme Court held that award of N1,100,000.00 was proper for unlawfully dishonouring a cheque by bank.
Counsel further argued that, in the law of contract, there is no dichotomy between special and general damages. He relied on G.K. F. I. Nig. Ltd Vs NITEL Plc (Supra). He also relied on Tsokwa Motors Nig. Ltd Vs UBA Plc (2013) 2 NWLR (Pt.1071) 347 at 336. Ezeani Vs Ejidike (1964) All NLR 462; Ekpe Vs Fagbemi (1978)3 Sc 209; Arisons Trading Vs Military Gov, Ogun State (2009) All FWLR (Pt.496) 1819; Arta Industries Ltd Vs NBCI (1998)3 SCNJ 98 on the rule against double compensation. He said that, in this case, the trial Court awarded special damages in favour of Respondent for deductions made to its account on 6/3/2008, excess interest wrongly overcharged, deduction for perfection of legal mortgage and VAT, and also awarded punitive damage of N30,000,000, and payment of N165,000,000.00! He said that having awarded special and punitive damages the Respondent was fully compensated and so it was improper to award another N165,000,000.00 to the Respondent in respective of the same wrong or injury. He urged us to interfere, stating the grounds where appellate Court can interfere with award made by the trial Court. He relied on the cases of Airline Vs Otutuizu (2011)4 NWLR (Pt.1238) 512; UBN Plc Vs Chimaeze (supra); Osuji Vs Isiocha (supra) Obere Vs Eku Baptist Hospital (1978) 6 ??? 7 SC 15 at 24; Ahmed Vs CBN (2012)7 SC1; Imah Vs Okogbe (1993)12 SCNJ 57; UBN Vs Emole (2002) SCM 143.
On issue 5, whether the trial Court was right to award N30,000,000.00 (Thirty Million Naira) as punitive damages, Counsel answered in the negative. He argued that, to justify punitive or exemplary damages, it must be proved that the defendant did not just commit the wrongful act complained of, but that his conduct was high handed, outrageous, insolent, vindictive, oppressive or malicious, or disregarding every principle which actuate the conduct of civilized people. He relied on Odiba Vs Azege (1998)9 NWLR (Pt.566) 370; Williams Vs Daily Times of Nigeria Ltd, NITEL Plc (supra). Counsel said the award was not justified in this case, especially as it amounted to double compensation, after having awarded special damages and general damages.
On issues 4 and 7 (argued together), whether the Respondent proved entitlement to special damages and whether the Court was right to award 10% interest on the judgment debt, Counsel answered in the negative. Counsel said that the deductions and charges were not wrong and/or excessive; that the law is that special damages must be strictly proved; that Respondent failed to show that the deductions and charges were unjustified, having regard to the contract and the mortgage deed executed and the relevant tax laws regulating VAT. Thus, the Respondent was not entitled to special damages.
He added that the trial Court, erroneously, adopted the entire claims of the Respondent, without regard to the need for proper evidence and specific proof thereof, and this extended to the award of 10% interest on the judgment debts; that this cumulatively lends credence to the submissions that the entire verdict was unreasonable and not based on the age long proven tenets on damages, compensation and restoring the claimant within reason to the position he ought to have been in if the alleged wrong had not occurred. He said that the further award of 10% interest was unwarranted.
Appellant’s Counsel also argued what he called issue 8, which does not appear in the list of issues distilled on pages 3 and 4 of the Appellant’s Brief; The issue:
Whether considering the circumstances of this case the trial Court ought not to have exercised its discretion in favour of the Defendant and allowed the Defendant call evidence in defence of the action.”
Counsel did not relate this issue to any of the grounds of the appeal. But a simple glance at the processes shows that the issue would flow from grounds 10, 11 and 12 of the appeal, which (without the particulars) are:
10) The Learned Trial Judge erred in law in refusing to grant the Appellant’s application to set aside the proceedings of the lower Court from 16/10/2012 to 16/1/2014 when the appellant was not put on notice and heard in the said proceedings.
11) The Learned Trial Judge erred in law when he failed to give the Defendant a fair hearing in this suit.
12) The Learned Trial Judge erred in refusing to allow the Defendant to reopen her case and call evidence and this occasioned a miscarriage of justice.
I think the issue 8 can be accommodated in this appeal, as it is predicated on existing grounds of appeal, the slip in not listing the issue amongst the issues, notwithstanding:
The sum total of the argument of that issue is that the trial Court should have exercised its discretion in favour of the Appellant, to set aside the proceedings in the suit from 16/10/12 to 16/1/2014 or alternatively, set aside the order of foreclosure of the Defendant from defending the action, and should have re-opened the case of the defendant and allow the Defendant to call evidence in the suit. Counsel argued that Appellant’s right of fair hearing, under Section 36(1) of the Constitution was violated by the stance of the trial Court. He relied on MPAMA VS FBN PLC (2013) 5 NWLR (Pt. 1346) 176; GARBA Vs UNIVERSITY OF MAIDUGURI (1986)1 NWLR (Pt.18) 550; MARK VS EKE (2004)5 NWLR (Pt.865)54; NDUKAUBA VS KOLOMO (2005)4 NWLR (Pt.915)411.
Counsel urged us to resolve the issues for Appellant and to allow the Appeal.
The Respondent’s Counsel, Chidi B. Nworka Esq, on issue one, (which also took care of Appellant’s issue 8) said the issue raised in Appellant’s brief, page 3, that Appellant failed to attend the trial, due to failure to serve it with hearing notices, and that no amendment was made to reflect the change of Appellant’s name, had long been raised and settled by the lower Court; that the trial Court delivered a ruling on the same, on 18/6/15 (pages 250 – 256 of the Records), dismissing the application by the Appellant to nullify/set aside the proceedings of 16/10/12 to 16/1/14, or in the alternative, set aside the order of fore-closure and allow Appellant to recall witnesses, re-open the defence case and to defend the suit. Counsel said that Appellant did not appeal against that Ruling; that by law, a party cannot raise again an issue that he had earlier raised and had been decided against him; that that is an abuse of the Court process. He relied on Arubo Vs Aiyeleru (1993)2 SCNJ 90 at 102.
Thus, Counsel said the issue one by Appellant was incompetent, having earlier by interlocutory application, raised the issue of failure to amend the process to reflect the name change and same resolved against the Appellant; he said that Appellant can only raise such issue by way of appeal against that ruling; that having filed no appeal against that decision of the lower Court, the same is not placed before this Court. Counsel relied on Adonrin Vs Ojo Osagie (1994) SCNJ (Pt.2) 192 at 219.
Arguing the issue on merit, Counsel said that the contention of Appellant was premised on wrong facts; he said that the Amendment ordered by the trial Court was duly carried out, being one relating only to alteration of name; that same was done by the officials of the lower Court, right on the face of the writ of summons and statement of claim, already filed, by simply running a pen across the name Intercontinental Bank Plc and writing the name of Access Bank Plc (as apparent at pages 1 and 4 of the Records of Appeal; that that was in compliance with the provisions of Order 13 Rule 29, 30 and 31 of the Imo State High Court Civil Procedure Rules 2008.
Counsel added that the Appellant was represented in Court when the order of amendment was made, and an order was also drawn up to that effect and served on Appellant (see pages 223 and 226 – 226A of the Records). Counsel relied on Order 5 of the High Court (Civil Procedure) Rules to say that even if the amendment was not done, the failure to do so would not nullify the proceedings, Appellant having participated in the proceedings after the amendment (page 193 of the Records) and so was estopped from complaining. Counsel added that the case cited and relied upon by the learned silk on the point were irrelevant and inapplicable, particularly Amadi Vs Chinda (Supra); Motoh Vs Motoh (Supra).
Counsel further submitted that the amendment, being only on the name of a party could even have been made by the trial Court, suo motu, or even by this Court, on appeal, upon the facts and circumstances peculiar to it. He relied on AfolabI Vs Adekunle (1983) NSCR (Vol.14) 398; Abey Vs Alex (1999)12 SCNJ 234; Osasona Vs Ajayi (2004) All FWLR (Pt.216) 443; SPDC Nig. Ltd Vs Edamkue (2009) All FWLR (Pt.489) 407.
On issue 2, Counsel said Appellant’s contention in this issue was ridiculous and misconceived; that the contention that PW1 did not adopt his witness deposition is totally debunked by the contents of the supplementary Records of Appeal, showing what transpired at the trial Court on 1/2/12, where PW1, not only adopted his witness deposition, but also tendered the documentary exhibits.
Counsel further said that argument cannot be canvassed or advanced in total ignorance of the particular facts and circumstances of a case; that Appellant filed statement of defence, participated in the proceeding, up to a point, then exercised its inalienable right to withdraw from the proceedings. He said that no Court has a right to force a party to give evidence; that after both parties have been duly notified of the hearing date and a party, for no justifiable reason, decides to opt out of the proceedings, the case presented by the other party, once not discredited in any legal way, should be the case to be considered on its merit. The intention of the party for opting out is not the business of the Court, Obmiami Bricks Vs ACB (1992)3 SCNJ 1 at 38 Balogun Vs UBA (1992)7 SCNJ (Pt.1)61 at 66. He said further that a defendant who fails to lead evidence is bound by the evidence of the plaintiff; that it does not lie in the mouth of a party, who with his counsel, chose to be absent without excuse when proceedings in his case are going on, to complain of the course the proceedings took in his absence Ibekendu Vs Ike (1993)7 SCNJ (Pt.1) 50 at 63.
Counsel wondered about which/what pedestal the Appellant stood to question the evidence led by Respondent in the case, having not taken, part in the proceedings complained of! Counsel noted that the evidence led by Respondent???s witnesses (PW1) and PW2), wherein it a firmly established every inch of its claim, with full particulars, and all the exhibits were tendered without objection, and no part of the evidence was challenged. He relied on the case of Baba Vs Civil Aviation (1991)7 SCNJ (Pt.1)1 at 22; Insurance Brokers Vs Atlantic Textile (1996) 9 -10 SCNJ 171 at 181; Nzeribe Vs Dave (1994)9 SCNJ 161 at 171 – 175, to the effect that, when evidence on an issue comes from one side and is not challenged and controverted by the other side, it ought to be accepted on the principle thatÂ there is nothing to be put on the other side of the balance, unless the evidence is of such quality that no reasonable Tribunal should believe it. And when admissible evidence has been adduced, which remains uncontroverted, it becomes part of what will lead to a decision in the case, and unless the evidence is palpably incredible, the Court is not only entitled to but has no reason not to accept it Osondu Co Ltd Vs Akhigbe (1999)7 SCNJ 1 at 16.
Counsel added that Appellant did not challenge the pleadings of the Respondent on these issues for which the evidence were led. He relied again on Nzeribe Vs Dave (supra); Arabambi Vs Abil (2005)12 SCNJ 331 at 353; Manson Vs H.E.S. Nig Ltd (2007) All FWLR (Pt.358) 1067 at 1084. Thus, having not led evidence in the case or challenged the evidence led by the Respondent and having not challenged the pleadings on the evidence led, Counsel submitted that Appellant, who participated in the case, but raised no objection to any of the documents tendered, or evidence taken cannot raise any issue on the state of evidence and proof of the Respondent’s case.
He said that the legal principle that extrinsic terms cannot be read into a contract is too simplistic and strait jacketed to adapt and apply into this particular case, in view of the conduct of the parties in their various and revolving overdraft contracts, which commenced in 2005 and culminated in the last one of 2008; that there was no dispute over the terms of the contract between the parties. Rather, the Respondent’s case is that Appellant breached the terms of the contract.
On the registration of the legal mortgage, Counsel said that Appellant had a duty to do so, but failed to register it, as evidence showed, and so waived its rights to the benefits of such registration. Counsel said:
Appellant, for the 3rd time, yet again waived this right throughout the duration of the 2007 contract also. These three waivers are enough to constitute or establish a practice in the performance of the contract between the parties that is capable of being relied upon by the Respondent in subsequent such contracts. Same is equally enough to constitute an estoppel against Appellant, who, having led the Respondent to believe that registration of legal mortgage would not be part of their overdraft contract, cannot turn round at its own caprice to want to enforce that term
that it has waived. Even in this last one of 2008, Appellant yet again, while that overdraft lasted, waived the right to register or perfect any legal mortgage.”
Counsel said there can, therefore, be no doubt about that the evidence by Respondent of subsequent agreement not to register a mortgage, which Appellant did not do in the four consecutive contracts; that being ad-idem as to how to deal with this particular term of their contract, no person can impose it on them that they must follow and comply with the strict letters of the written contract, when they voluntarily chose to compromise that particular term.
Counsel said it was when Respondent complained of outrageous deductions and illegal charges on its account that Appellant thought it could smartly get away with some of them by claiming that the sum of N740,000.00 was deducted for the perfection of legal mortgage. But then, Appellant did not register any mortgage while the overdraft contract lasted and the 2008 contract expired on 17th September, 2009! He said that no mortgage was registered within this period and the Respondent cleared every bit of his indebtedness to Appellant on 29/9/2009. Appellant did not only release the title documents of the Respondent, but also issued a letter of non-indebtedness to the Respondent. Then in January 2010, three months after liquidating the 2008 overdraft, Appellant purported to register a mortgage! (Pages 22 and 130 -140 of the Records). Counsel wondered which loan or overdraft the alleged registered mortgage represented or secured!
Again, Counsel said on 15/2/08, Respondent paid into its account the sum of N1,200,690.00 and Appellant deducted this amount on 6/3/2008 claiming it was wrong lodgement (page 20 of the Records). At no time did Appellant refund the said sum of N1,200,690.00 to the Respondent. He argued that had the amount not been unlawfully deducted from the account, the overdraft facility would have been liquidated long before, Appellant stated so, and the interests, service charge, C O T, VAT etc. that accrued/continued would have stopped!
On the allegation that PW2 was not an expert and did not sign the report he tendered and the he relied on C.B.N. documents not signed, Counsel said those were mere technical gymnastics, that were not only misconceived but also inapplicable to the peculiar facts and circumstances of this case; he said that they cannot override the justice of the case. He said that C.B.N. documents are general circulars to banks and financial houses, not usually signed by any person, and which every recipient is entitled to prove; he added that the statement of accounts (Exhibit G) was printed for Respondent by the Appellant who ought to have complied with Section 90 of the Evidence Act; that Appellant cannot now seek to take advantage of its own wrong doing. He said the claim that the account of the Respondent was in the red, when the cheques were issued, is totally false, since the overdraft was a revolving one, which had not been overdrawn. The cheques were issued on 12/8/09 and 8/9/09, while the overdraft was to expire on 17/9/09; Counsel said that, had the sum of N1,200,690.00 paid in on 15/2/2008, not been stolen by Appellant, the account would not only have been in credit with the overdraft funds, but also with this said amount of money of the Respondent, paid in, before the said cheques!
Of course, Counsel said the evidence of the Respondent was unchallenged, and that the law is settled that, where evidence is unchallenged, only minimal proof is required of the person upon the burden of proof lies. Garba vs. Zaria (2005) ALL FWLR (Pt.283) 25 at 33. Counsel said that since no body challenged the evidence of PW2 and sought to verify his academic qualification/expertise, same cannot be questioned on appeal. He said that PW2 gave evidence that he personally carried out the audit in issue, with his team. He relied on the case of Ordia vs Piedmont (1995) 2 SC NJ 175 at 183 to say that
A person who prepares document signed by another may be regarded as the maker, being himself responsible for the accuracy of the document.
He also relied on Obembe vs. Ekele (2001) 10 NWLR (Pt.722) 677 at 693 -694, saying that PW2 was testifying on behalf of a firm or company, which acted through its human components; that any servant of the firm or company could testify on the activity of the firm/company.
On the admissibility and effect of Exhibit G (statement of account produced by Appellant), Respondent argued that Appellant cannot seek to impugn the document and at the same time place reliance on it as in this appeal, when Appellant
relied on the Exhibit G to say that Respondent did not have sufficient funds in his account when it issued the two cheques that were dishonoured He relied on Gov. Ekiti State vs. Ojo (2006) ALL FWLR (Pt.331) 1298 at 1318 -1319
A party cannot rely on and take benefit of the contents of a document and at the same time turn round to question the validity or legality of the same document.
On Issues 3, 4, 5, 6 and 7, which Counsel argued together, Counsel said the Respondent proved its case and entitlement to the damages awarded, that there was no issue of double compensation; that award of special and general damages, if proved, does not amount to double compensation; that there is nothing wrong in awarding both compensation and exemplary damages, one sum as compensation, another as exemplary damages, He relied on UTB Nig. Ltd vs. Ajagbule (2006) 2 NWLR (Pt.965)447 AT 500; 0diba vs. Muemue (1999) 6 SC NJ 245 AT 261.
Counsel noted that the evidence of the Respondent was not challenged on both the special and general damages, the deduction of N740,000.00 for alleged perfection of legal mortgage, the stealing (or deduction) of Respondents N1,200,690.00 paid in on 15/2/2008, were all claimed as special damages; he also referred to the unilateral reduction of the overdraft facility from N35 million to N17.55 million and forcing of Respondent to pay N2,217,439.47 by which amount Appellant claimed the Respondent had overdrawn the said N17.5 million; cut down on the business capital of the Respondent etc. Counsel said that the overdraft was given at an interest rate of 17.5%, but for no just cause and without consent of Respondent, Appellant increased it to 23.5%, then 28% and yet again to 30%, far in excess of the express contract of the parties. He also referred to the dishonour of 3 cheques by the Respondent, that that was a breach of contract. He relied on the case of STB Ltd vs. Anumnu (2008) ALL FWLR (Pt.399) 405 at 428; Dike vs. ACB Ltd (2000) 5 NWLR (Pt.657) 441 at 458; Access Bank Plc vs. M.F.C.C.S. (2005) ALL FWLR (Pt.251)305 .
Counsel also relied on the case of Alied Bank vs Akubueze (1997) 6 SC NJ 116 at 141, where the Supreme Court specified on damages accruing to a trading Customer, whose cheques is dishonoued by the bank, that he is entitled to substantial damages, although he neither pleaded nor proved actual damages.
On the Issue of 10% post judgment interest, Counsel said that is statutory and referred us to Order 35 Rule 4 of the High Court Civil Procedure Rules of Imo State, 2008. On the award of exemplary damages, Counsel said this case deserved such treatment, he said that by law, aggravated damages can also be awarded in a case where general damages have been awarded. He relied on the Supreme Court case of Eliochin Nig. Ltd & Ors vs. Mbadiwe, (1986) 1 NWLR (Pt.14) 47 at 65 which held:
The primary object of an award of damages is to compensate the Plaintiff for the harm done to him. A possible secondary object is to punish the defendant for his conduct in inflicting the harm. Such secondary object can be achieved by awarding, in addition to normal compensatory damages, which go by various names, to wit: exemplary damages, punitive damages, vindictive damages, even retributory damages, which can come into play, whenever the defendant’s conduct is sufficiently outrageous, to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of law and the like. Per Obaseki JSC. See also Odogu vs. A.G. Federation (1996) 7 SCNJ 132 at 139 -140; Naude vs. Simon(2014) ALL FWLR (PT.753) 18.78
Counsel said that Appellant acted with malice in this case against the Respondent, by arbitrarily cutting down the agreed amount of the overdraft, starving the Respondent of trading capital; that Appellant flagrantly disregarded the law by hiking the interest rate, not only above what was agreed in the contract, also above the legal limit set by the Central Bank of Nigeria (C.B.N); that Appellant also inconsiderately calculated to make profit for itself at the detriment of the Respondent by not only charging C.O.T at a higher rate than agreed, charging VAT for service not rendered, but also stealing and retaining money paid in by the Respondent into its account.
He said Appellant went further to inflict malicious, cruelty upon the Respondent by holding back, Respondent’s funds and yet dishonouring Respondent’s cheques, thereby damaging the business reputation of the Respondent in the eyes of its trading partners and exposing the Managing Director of Respondent to prosecution, for the
crime of issuing dud cheques; that Appellant crowned its malice and cruelty by its fraud of not only deducting money from Respondent’s account for a mortgage it did not register while the contract lasted, but also registering a Mortgage, when there was no overdraft which the registration should secure, thereby not only wrongfully encumbering Respondent’s property but also further tarnishing the business image and credit of the Respondent in the financial industry. Thus, Counsel said the exemplary damages was justified.
On the style of the trial judge in couching the awards, Counsel said every judge is entitled to adopt his own style of judgment writing, so long as the judgment deals with and resolves all the germane issues in the case, the issues clearly identified, the evidence properly evaluated, applicable laws adequately invoked to arrive at a definite conclusion, with proper orders dished out at the end. He relied on Saeed Vs. Yakowa (2013) ALL FWLR (Pt.692) 1650 at 1684 (SC).
Counsel added that appellate Court will not, ordinarily, interfere with the award of damages by the trial Court, whether on the ground of excess or insufficiency, merely because it thinks that, if it heard the case, it would have ordered differently; that appellate Court can only interfere on the ground that the lower Court acted on a wrong principle of law and made entirely erroneous estimate of the damages. He relied on Sabru Motors Ltd vs Rajab Ltd (2002) 4 SCNJ 370; Leventis vs. Akpu (2007) 6 SCNJ 242 at 261. He submitted that Appellant had not faulted the principle of law upon which the trial Court acted in making the awards of damages. Thus, he said, this Court cannot interfere; that the amount may sound big, but comparing it with realistic value in the present economy, vis a vis exchange value of the Naira to American Dollars (presently at N480.00 to a dollar), the amount awarded was not big; he said that the Respondent’s business, is such that imports goods from foreign countries and must, of course, purchase foreign currencies. He relied on Onwu vs NkaÂ (1996) 7 SCNJ Akubueze (1997) 6 SCNJ 166 AT 145 to say that the Court has to consider or keep up with times and economic trend in the country, and in particular with the prevailing decline in the purchase power of the naira in the award of damages. Counsel urged us to resolve the issues against Appellant and to dismiss the appeal.
Appellant filed a Reply Brief to protest that the Respondents Counsel was referring to Appellant’s brief as Senior Counsel for Appellant’s brief. Appellant’s Counsel corrected the Respondent that the Senior Counsel for the Appellant was not a party to the appeal and therefore had no personal brief. He added that parties are allowed by law to raise alternative arguments and or contentions, and that was what Appellant did in paragraph D.16 of Appellant’s Brief, which the Respondent complained of.
Counsel also noted that the Respondent questioned the pedestal upon which Appellant stood to question the evidence led by the Respondent, Appellant having opted out of the proceedings and all the documentary exhibits tendered without any objection from the Appellant. He submitted that even then, the law required the Respondent to succeed on the strength of his case and not on the weakness of the defence. Therefore, the evidential and persuasive burdens of proof placed on the Respondent still had to be discharged, to succeed. He relied on Duru vs. Nwosu (1989)4 NWLR (Pt.113) 24 at 52; Aromire vs. Awoyemi (1972) 2 SC 1; Agu vs. Nnadi (2002) 18 NWLR (Pt.798) 103.
Counsel also referred the Court to the usual Procedure of tendering and admitting documents as Exhibit at the trial of a case and said that procedure was not followed in this case. He referred us to the supplementary records, that Respondent’s witness (PW1) merely identified documents shown to him which the claimant had marked exhibits, when the documents were front loaded; that the PW1 did not tender those documents as Exhibits, and the defence counsel called upon to object and the trial Court ruling thereon: He said that the document were merely identified, and so lacked probative value, being not in evidence. He relied on Wassah vs Kara (2015) 4 NWLR (Pt. 1449) 374; Egwa vs Egwa (2007) 1 NWLR (Pt. 1014) 71.
Counsel also quarrelled with paragraph 6.02 of the Respondent’s Brief wherein Respondent argued that Appellant admitted that it stole from the Respondent’s account, saying Appellant did not make such admission, and that that was an unfounded statement. Counsel
still urged us to resolve the issues for Appellant and to allow the appeal.
RESOLUTION OF ISSUES
I think this appeal can be determined on the Issues distilled by the Appellant and adopted by the Respondent, but the said issues can be further streamlined into four namely:
1) Whether the Order of amendment of the name of the Respondent was not carried to effect, and if yes the effect of such failure. (Ground 2)
2) Whether the Respondent’s right of fair hearing was violated in the way the trial Court handled the case and when the Court refused Appellant’s application to set aside the proceedings of 16/10/12., or to reopen the case for the Appellant and allow it to recall witnesses and defend the Suit, (Grounds 10 to 12)
3) Whether the Respondent had established its case that Appellant breached the contract between the parties, wrongly dishonoured its cheques, fraudulently infringed on Respondent’s credit and business, fraudulently encumbered the Respondent???s property and fraudulently enriched itself. Grounds 1, 3 and 9
4) Whether the Respondent was entitled to the damages awarded and whether the same was not excessive. (Grounds 4, 5, 6, 7 and 8)
On Issue one, Appellant argued, strenuously, that after the order, granting leave to the Respondent to amend its process(es) on 14/6/2012, substituting the name of the Respondent (which started as Intercontinental Bank Ltd) with Access Bank PLC, the Respondent failed to file the process to effect the amendment. I do not think Appellant was right to say that the order of the Court substituting Access Bank PLC for Intercontinental Bank Ltd had not been effected. Access Bank PLC had taken over the assets and liabilities of Intercontinental Bank Ltd, after their merger as shown in the order of 14/6/11, and I think it was a mere formality to effect the changes on the processes already filed in the suit, to reflect the name of the new Respondent.
The enrolled order of the Court is on page 188 of the Records and states:
Upon Reading the Motion on Notice, affidavit in support and the written address and after having Chidi B. Nworka (with O. I. Njemanze) of Counsel for the Claimant/Applicant).
IT IS HEREBY ORDERED that leave shall be and is hereby granted to the claimant to vary the name of the Defendant on record by substituting same with the name ACCESS BANK PLC.
IT IS FURTHER ORDERED that the processes issued in this suit be amended to reflect the substitution sought.
Of course, with that order, effecting the amendment sought, it was the duty of the Court officers (Registrar) to effect the amendment straight away, by deleting the name of Intercontinental Bank Ltd and writing the name of ACCESS BANK PLC as the Defendant. And that was done, as seen on pages 1 and 4 of the Records of Appeal carrying the writ of summons and the statement of claim of the Claimant, respectively. That order did not require the Claimant (Respondent) to file any process reflecting the substitution, and it did not give the Respondent time frame to do so.
The learned Senior Counsel was therefore wrong to seek to import extraneous requirement into that Court order, just to defeat the proceedings. It can also be seen that, after that grant of the motion for amendment, on 16/6/12, the case was no longer listed in the name of Intercontinental Bank Ltd, but ACCESS BANK PLC, as Defendant, See pages 192, 193, 194, 196, 197, 198 etc of the Records of Appeal. And it is clear, that Appellant participated in the case, thereafter, without complaint. I resolve the Issue against the Appellant, seeing it as frivolous.
On Issue 2, Appellant had applied on 12/3/14 for the trial Court to set aside/nullify the proceedings in the suit done, from 16/10/12 to 16/1/14, or alternatively, set aside the order foreclosing the Appellant from defending the suit; Appellant prayed also for order re-opening the case and allowing Appellant to call evidence. The grounds for bringing that application (among other things) alleged that Appellant was not served with the hearing notices for the hearing, issued on 19/7/12 and 25/2/13, and that the order to amend the process to substitute the name of the Appellant was not carried out. See page 211 of the Records. The trial Court dismissed that application on 18/6/15, for lacking in merit, and for being abuse of the process. It also held that the Defendant (Appellant) was in Court on 27/9/11, with its lawyer; they were earlier in Court on 22/6/11 for the pre-trial, and after that pre-trial, the Appellant’s Counsel did not attend Court,
but that on 27/9/11, when PW1 gave evidence, Appellant was in Court, with Counsel, and the case was adjourned to another date; that Appellant was clearly aware of the case it had in Court; that the Exhibits attached to the Counter affidavit, showed clearly that up till 12/1/13, the Defendant (Appellant) and their Counsel, were properly served with hearing notices; that it was only on 12/3/14 that a motion was filed for change of Counsel on behalf of the Defendant (Appellant). That meant that, from November 2011, till March 2014, Defendant went to sleep and neglected/abandoned the case. See page 255 -256 of the Records.
Appellant was granted leave to appeal against that Ruling of the trial Court, as shown in the order of this Court made on 7/6/17 (See Exhibits A and B attached to Respondent’s Notice of Preliminary Objection, filed on 20/11/17). Appellant had formulated grounds 10, 11 and 12 of the Amended Notice of appeal, ostensibly, on that Ruling of 18/6/15.
But I have not seen any argument of Appellant contesting the decision of the trial Court in that Ruling of 18/6/15 and the grounds of same, as shown on pages 250 – 256 of the Records. The whole arguments of the Appellant, as per the issue 8 (which even came as an oversight) were a rehash of the arguments Appellant made before the lower Court in the motion of 12/3/14. (See page 250 to 252 of the Records).
Appellant did not raise any ground/issue to challenge the substance of the Ruling of the lower Court, made on 18/6/15, that:
The Defendant was clearly aware of the case it had in Court. The Exhibits attached to the counter affidavit, clearly show that, up till 12/11/13, the Defendants (sic) through their Counsel were properly served with hearing notices. It was only on 12/3/14 that a motion was filed for change of Counsel on behalf of the Defendant. That means that from November 2011 till March 2014, Defendant went to sleep and neglected/abandoned the case it knew it had pending in Court.
The law is trite, that where no appeal is raised against the findings/holding of the lower Court, the same remains binding and conclusive. See Alakija vs Abdulai (1998) 6 NWLR (Pt.552) 1; Opara vs. Dowel Schlumberger Nig Ltd(2006) 15 NWLR (Pt. 1002) 342; Amale vs Sokoto Local Govt. (2012) 5 NWLR (Pt.1292) 181; Nwaogu vs Atuma (2013) 11 NWLR (Pt.1364) 117; Nmanumeihe vs. Njemanze (2016) LPELR 40212 (CA).
Of course, I have already held that the Respondent did not have to file any amended process, after the grant of application to substitute ACCESS BANK PLC for Intercontinental Bank Ltd, as that order was effected, promptly, by the Officers of the Court, upon the grant of the application, and as per the enrolled Order (on page 188 of the Records of Appeal). That, I think, takes care of the other arm of Appellant’s application to set aside proceedings and/or the order of foreclosure, and to allow Appellant to defend the suit.
Appellant cannot, therefore, complain of denial of fair hearing, when it was the one that aborted every opportunity it had to present its case, and rather opted to go to sleep, neglected/abandoned the suit, as the trial Court held. A party who fails to utilize its opportunity to present its case, cannot complain of denial of fair hearing, when faced with the consequences of its failure, indiscretion or indolence. See the case of Newswatch Communication Ltd vs Atta (2006) 12 NWLR (Pt.993); (2006) LPELR 1986); Onyeme & Anor vs Onumaegbu & Anor (2016) LPELR 41092 (CA); FHA vs. Kalejaiye (2011) ALL FWLR 9Pt.562) 1633.
I resolve the issue 2 against Appellant also.
Did the Respondent establish its case against Appellant, as required by law, despite the failure of appellant to defend the suit?
The Respondent had questioned the pedestal which Appellant had to question the evidence in the case. Counsel had argued that, because the case presented by the Claimant (Respondent) was not challenged, in any way, and that the evidence led by the Respondent, through its witnesses (PW 1 and PW 2) firmly established every inch of its claim against the Appellant; that all the documentary exhibits were tendered without any objection from the Appellant; that not one alphabet of the evidence was challenged by Appellant and so Appellant could not question the evidence in this case. He said the law is pretty well settled, that:
When evidence on an issue comes from one side, and is unchallenged and uncontroverted by the other, it ought to be accepted on the principle that there is nothing to be put on the other side of the balance, unless the
evidence is of such quality that no reasonable Tribunal should believe it.- Baba vs Civil Aviation (1991) 7 SCNJ (Pt.) 1 at 22; Insurance Brokers vs. Atlantic Textile (1996) 9 10 SCNJ 171 at 181; Nzeribe vs Dave (1994) 9 SCNJ 161 at 171 – 175
Appellant had, however argued in the Reply brief, that the Respondent still had a duty to prove its case on the strength of its case, and not to rely on the weakness of the defence; that the failure of the defence, notwithstanding, the Respondent (PW1) did not adopt the statement on oath, and that the procedure of tendering exhibits in the case was faulty; that the exhibits were not duly admitted in evidence, and so did not form part of the evidence, to be used in the case, and so the trial Court was wrong to rely on them. Appellant had also queried the expertise of the PW2, saying he did not state or produce his professional credentials to prove his expertise, and that he also tendered a document, (Exhibit N) signed by a Chartered Accountant, who was not called as witness, and that he also relied on circulars from C.B.N. which were not signed.
By law, a claimant’s duty to establish and prove his claim, remains inviolate, whether or not the case is defended by the Defendant, and the Claimant is expected to succeed on the strength of his own case, not on the weakness of the defence. See Momoh & Ors vs. Umoru & Ors (2011) 15 NWLR (Pt. 1270) 217; Efetiroroje & Ors vs. Okpalefe II & Ors (1991) 5 NWLR (Pt. 193) 517; Alaribe vs. Okwuonu (2015) LPELR 24297 (CA); Adewuyi vs. Odukwe (2005) 7 SC (Pt.II) 1 at 13 -14. But it is also the law, that where a case is not defended, the claimant is expected to succeed on minimal of proof, and he can take advantage of concessions by the defendant, amounting to admission of the Plaintiff’s case. See, again, Alaribe vs. Okwuonu (supra); Owoade vs Omitola (1988) 2 NWLR (Pt.77) 413; Smab Inter-Trade ltd vs Bulangu(2013) ALL FWLR (Pt.693) 2019; (2013) LPELR 21414 (CA); Ukpo vs Imoke (2009) 1 NWLR (Pt.1121) 90 at 144; Agboola vs. Uba (2011) ALL FWLR (Pt.574) 74.
I think, like the Respondent’s Counsel submitted, Appellant really lacked the pedestal to contest the quality of the evidence adduced by the Respondent’s witnesses, and the procedure adopted by the trial Court at the trial, as it (Appellant) was not there at the trial to raise any objection to the evidence adduced and/or how it was obtained, and that includes whether the witness was not competent to testify as expert witness, merely for failure to tender his academic/professional qualifications, and the procedure of tendering the documents, as exhibits. Of course, where the defendant is not present in Court to challenge a witness (under cross examination) to state or produce his qualification(s) as expert witness, and/or to object to the tendering of a particular document as Exhibit, the trial Court is not, in my opinion, expected to go through the necessary or unnecessary protocol/procedure of recording or calling for production of such qualifications, or calling for objection to the tendering of the document as exhibit, as that would amount to descending into the arena of conflict. See Ajakaiye vs The State (2015) 5 WRN 64; Obi vs A.G. Imo State (2014) LPELR 24280 CA:
A trial judge must not be seen to descend into the arena of conflict in a trial, to generate or adduce evidence or facts not canvassed or adduce by witness(es), or apparent on the face of the records before him, to decide a case. See also Ayoade vs Spring Bank PLC (2014) 4 NWLR (Pt.1396) 93 at 128; Egbebu vs. I.G.P. & Ors (2016) LPELR 40224 (CA).
The Respondent produced a Supplementary Records of Appeal wherein what transpired in Court on 1/2/12, when PW1 gave evidence, was stated. On that date claimant was present and the Defendant absent, but was represented by Counsel, E.V. Onuegbu Esq, with him, K.T. Okere Esq., Nworka Esq. led the Respondent’s witness, PW1 to testify, as follows;
I commenced evidence in this matter on 27th September 2011. I swore to deposition in Court. I reswore my deposition on 5/10/11. I adopt my written deposition as my evidence in this Court. In my deposition, I mentioned a number of documents. Exhibit A identified, Exhibit B identified, Exhibit C identified, Exhibit D, identified, Exhibit E identified, Exhibit F identified Exhibit G identified, Exhibit H identified, Exhibit J identified, Exhibit K identified, Exhibit L identified, Exhibit M identified, Exhibit N identified, Exhibit 0 IDENTIFIED, Exhibit P identified, Exhibit Q identified, Exhibit R identified, Exhibit S
identified, Exhibit T identified, U identified, Exhibit V identified, Exhibit W identified, Exhibit X and X1 identified Exhibit Y identified, Exhibit Z identified, Exhibit Z1 identified, Exhibit Z2 identified.???
Cross Examination, by defence Counsel:
Q. Tell Court when claimant was incorporated
A. I cannot remember the exact date but must be between 2001 and 2003
Q. The transaction for which you sued the Defendant in Court started in 2004
A. From 2004, I requested they printed my statement of account from inception and they said they could not as they have changed software (See page 1 of the Supplementary Record of Appeal)
After taking two more questions, Appellant’s Counsel applied for adjournment to continue and conclude the cross examination and the case was adjourned to 4/4/12.
There is no recording of what happened on 4/4/12, but on 14/6/12, the Respondent moved the motion which brought in the new Respondent ACCESS BANK PLC, and the case was adjourned for continuation of hearing. On 19/7/12, the case was adjourned again to 16/10/12 for hearing, with hearing notice to be issued to the Defendants (sic). On that date, 16/10/12, the Defendant (Appellant) was represented by E.O. 0bidiri, who asked for adjournment to enable the Defendant reach the claimant to start settlement proceedings. Counsel for the Respondent had asked for cost, reminding the Court that the idea of settlement was muted since 19/7/12, in the course of cross examination of PW1. The case was adjourned to 4/12/12 for report of settlement, and cost of N10,000.00 was awarded against Appellant ‘to make (sic) them up from slumber’ See page 193 of the Records.
Thereafter, the Appellant failed to attend Court, and their Counsel too, and on 20/2/13, the case was adjourned to 14/5/13 for continuation of hearing and Hearing Notice was ordered to be issued to Appellant. On 14/5/13, Appellant still did not appear nor their Counsel, but there was proof that hearing notice had been served on Appellant (as carried on page 195 of the Records of Appeal). The case was again adjourned to 9/7/13 for continuation of hearing, after the PW 1 told the Court he was ready for continuation of cross examination.
PW2 testified on the 9/7/13 and adopted his witness deposition, identified Exhibit N as the report he prepared. He was not cross examined as Appellant, again, was not in Court. The Court wrote: Cross examination Nil Re-examination Nil. Case for Claimant Case adjourned to 24/10/13 for defence See page 197 of the Records.
On that 24/10/13, Appellant was again absent and the Court foreclosed the defence and adjourned for adoption of addresses, on 16/1/14.
That was the state of the case, until 12/3/14, when Appellant filed a motion on Notice for order allowing it to change Counsel, (which obviously was unnecessary; in my view) but the trial Court heard and granted the motion on 13/5/14. Prior to that motion, parties were in Court on 16/1/14, and because there was a motion which the Court said it could not ignore, the case was adjourned to 1/4/14 for hearing. The motion was to set aside the proceedings and/or allow Appellant to defend, which was refused.
With the above background, I find it very difficult to fault the evidence adduced in this case by the Respondent, considering the intransigence of the Appellant in the conduct of the case, which actually revolved around a mutually accepted facts of bank customer/relationship, and the handling of Respondent’s Account by the Appellant (banker to Respondent). See paragraph 4 of Appellant’s pleading, which admitted paragraphs 2 and 3 of the statement of claim, to the effect that, Respondent was Appellant’s customer. And in paragraph D.19 of the Appellant’s brief, it admitted that by Exhibits A, B, C, D, and F, Appellant, granted overdraft facilities to the Respondent, which attracted interest, charges, and obligations and under the conditions stipulated in the said Exhibits and as listed in the paragraph D.19 of the brief, namely:
(i) The Bank shall charge interest on the loan granted at the rate of 21% p.a. (floating)
(ii) Interest agreed on is subject to upward or downward review in line with money market realities as shall be advised by the Bank from time to time.
(iii) Any future variation of interest rate 4 (sic) as advised by the Bank will be deemed accepted unless the facility is repaid on or before the effective date of review
(iv) To pay C.O.T. of N2 per mile, processing fee of 0.5% flat and Management
fee of 0.25% flat payable per quarter.
(v) Legal mortgage over property situate at No. 83 Douglas Road Owerri
(vi) Submit for perfection executed deeds of legal mortgage (6 copies)
(vii) Submit letter authorizing the bank to debit its account for cost of perfecting legal mortgage on the pledged property
(viii) Submit letter addressed to the Commissioner for Stamp Duty authorizing the Bank to up stamp its interest in the mortgage property.
In paragraph D.20 of the Appellants Brief; Appellant argued:
From the documents (Exhibits C, D and F) it is clear that the Respondent, pursuant to the agreement, encumbered its property, situate at No.83 Douglas Road, Owerri, Imo State executed deed of mortgage (Exhibit W) and agreed that the same be perfected i.e. stamping, obtaining requisite consent and registering same with the lands Registry, Owerri. Exhibit W was duly executed by the Respondent and by the said deed/instrument the parties created a legal mortgage over the property situate at No.83 Douglas Road Owerri, upon the terms and, conditions contained therein. The requisite consent of the Governor was obtained. The execution of Exhibit W and its perfection raises a presumption of regularity and correctness and authenticity which the Respondent did not rebut.
Appellant had argued strongly, defending what it did to the Respondent, which the latter complained about, and Appellant thereby admitting using and adopting the said documents (Exhibits) it attempted to question as not being properly admitted in evidence. I do not think Appellant can be allowed to approbate and reprobate on the admissibility of the documents (Exhibits), which it also relies upon in this case. Though, procedurally, the trial Court did not state when the documents were tendered before it (or after they were identified as Exhibits A to Z2), there is no doubt that the documents were pleaded, frontloaded by the PW1, adopted by PW1, applied and demonstrated in the evidence (statement on oath by PW1) at the trial. See pages 16 to 25 and 29 to 149 of the Records of Appeal, as well as page 1 of the Supplementary Records.
As earlier stated, Appellant had adopted and placed reliance on the same documents (Exhibits) he picked quarrel with, particularly, Exhibits A, B, C, D, E, F, G, N, and W, produced by the Respondent at the trial. Appellant cannot therefore be taken to be serious in opposing the use of the said Exhibits in evidence, as the law will not permit it (Appellant) such double stand.
A party cannot rely on and take benefit of the contents of a document and at the same time, turn round to question the validity or legality of the same document. See the case of Gov. Ekiti State vs. Ojo (2006) ALL FWLR (Pt.331) 1298 at 1318 1319; A.G Rivers State vs. A.G. Akwa Ibom State (2011) LPELR 633 (SC); (2011) 8 NWLR (Pt. 1248) 31
It is also the law that where evidence which is admissible, upon fulfilment of certain condition is tendered and the opposite party consents or does not object, then once admitted that party cannot turn round to complain of its inadmissibility and certainly will not be allowed to raise the issue of the inadmissibity of that evidence on appeal. See Alade vs Olukade (1976) NSCC 34
In Blessing vs. F.R.N (2015) LPELR 24689 (SC) it was held:
The mere fact that the Appellant admitted Exhibit 4 in evidence without objection has rendered the document admissible evidence and therefore unchallenged. It can be acted upon. It follows in the result that the procedure of admission even if irregular, has been waived and cannot now be made subject of complaint. See Obisi vs. Chief of Naval Staff (2004) 11 NWLR (PT.885) 482 where this Court held and said: A person who acquiesced in an improper procedure without protesting is not permitted to complain on appeal Per 0gunbiyi JSC
Of course, Appellant was represented by Counsel, who was present when the PW1 identified the documents named as Exhibits A to Z2. Counsel had not raised objection to the procedure of tendering the documents as exhibits, but proceeded to cross examine the PW1, after he (PW1) had adopted his statement on Oath and identified the Exhibits. Appellant cannot be heard to complain, now, especially as Appellant had also adopted and used the Exhibits, particularly, Exhibits A to G, N and W. See also Alfa vs Attai & Ors (2017) LPELR 42579 SC.
The law is trite, that where an action as in this case, was commenced by a procedure that is irregular, a party who took active part in the proceeding without raising a formal objection to the irregular
procedure cannot later be heard complaining and praying that the action be set aside on ground of irregularity, which he himself had earlier acquiesced. See Saude vs Abdullahi (1989) LPELR 3017 (SC). ???See also Vincent Standard Trading Co. Ltd vs Xtodeus Trading Co. (1993) LPELR 3463
It should also be appreciated that the evidence of the Respondent was the only evidence before the Court, and so unchallenged, and that the documents (Exhibits) relied upon in the case, including Exhibit G (Statement of Account) which PW2 analysed in Exhibit N, were related to the Banking transaction between the parties and issued, by the Appellant to the Respondent (apart from those issued by Counsel to the parties in the course of the banking transaction/relationship).
The Exhibit N and the evidence of PW2, who prepared the document (Audit Report), was therefore based on information supplied to the Accounting firm by the Respondent, and founded on the contract documents (Exhibits A to F) and the statements of Account (Exhibit G) and tellers/cheques/receipts, issued by Appellant on the account transaction. See paragraphs 4 -7 of the statement on oath of PW1 on page 27 of the Records of Appeal, as well as the Exhibit N (pages 96 to 113 of the Records).
There is evidence that Appellant was confronted by the Respondent with the facts of illicit dealings with the account as per the PW2s report in Exhibit N. See Exhibit Z1 (letter by Respondent’s lawyer, on page 147 of the Records) and that Appellant had a meeting with Respondent, and that Appellant’s Officers agreed upon being confronted with the facts, that claimants account was mismanaged, but blamed same on their head office. See page 27 of the Records of Appeal.
Those pieces of evidence were never challenged or controverted, rather Appellant fought to discount the evidence by address of Counsel, that PW1 did not adopt his statement on oath, and that PW2 did not establish he was an expert witness. He (Appellant’s Counsel) questioned Exhibit N, that it was signed by another person a Chartered Accountant who was not called to testify.
Of course, I had earlier held that PW1 had adopted his statement on oath at the trial (as per the Supplementary Records of Appeal supplied by the Respondent). Appellant cannot question the expertise of the PW2 by mere address of Counsel on appeal. This is because address of Counsel, no matter how brilliant, is never a substitute for evidence needed to prove a case. See Aliucha & Anor Vs Elechi & Ors (2012) LPELR 7823 (SC); Oyeyemi & Ors Vs Owoeye & Anor. (2017) LPELR 41903 (SC); Ajayi Vs Total Nig. Plc (2013) LPELR 20898 (SC).
Appellant cannot make any capital of the fact that PW2 did not produce his academic/professional Certificates at the trial. Of course, PW2 could not have produced those documents except, he was asked/challenged to do so. He had stated his qualifications as holder of HND certificate, a chartered accountant and member of the Institute of Chartered accountant. That, to me, was enough information to locate him (PW2) to testify as expert in financial/banking and audit matters. Because Appellant was not in Court, it lost the benefit of seeing the hard copies of PW2’s certificates! And because PW2 worked as a team, in a firm of Chartered Accountants, I believe any member of the firm that produced the Report (Exhibit N) was competent, to sign the Report.
In a recent decision of this Court in the case UBN PLC vs Onwukwe (2017) LPELR 43279 CA, where the witness who tendered an audit report on a customers account with a bank was alleged not to be an expert witness (The Report was tendered, without objection), we held:
Of course, the report was admitted without any objection, and when the witness was cross examined on the report and generally on the testimony he gave, there was no challenge as to his competence as an expert in accounting and auditing. Having presented himself as an Accountants, and a member of the Chartered Institute of Costs and management, and working with Uguma Amako & Co, Chartered Accountant, which produced the Exhibit A (Audit Report), it was for the Appellant, while at the lower Court, to rebut the claims of the witness and/or ask questions to puncture his credentials and claims of expertise and/or credibility, by challenging the admissibility of the audit report by his company. Appellant never did that… only to wake up on appeal, to contest the competence/expertise of the witness… That findings about the CW1 as an Accountant, in the firm of… Chartered
Accountants, which prepared and tendered the report (Exhibit A) was never challenged and/or appealed against… Appellant cannot also be allowed to rack up argument on appeal against a document duly admitted by the Court below without any objection by him, trying to fault the admission of the document on appeal. See Blessing Vs FRN (2015) LPELR 24689 SC.
The law is also that a credible member of a firm can sign the report or decision of the firm which they produced. Whether it is a firm of chartered accountants or law firm, I think the same principle applies, so there should be no hue and cry, if another chartered accountant signed Exhibit N, which the PW2 helped to produce. See Ndoma-Egba Vs ACB Plc (2005)14 NWLR (Pt.944) 79; Zain Nig Ltd Vs Alhaji Mohammed Kawu Ilorin (2012) LPELR 9249 CA;Agrovet Sincho Pham Ltd Vs Estate of Engr. Dahiru & Ors (2013) LPELR 20364 CA It is the individual lawyer(s) in the law firm that can enjoy such privilege and recognition of signing legal process for a party.
I therefore resolve this issue against the Appellant also.
Was the Respondent entitled to the damages awarded and were they excessive?
The trial Court had held on pages 257 and 259, as Follows:
PW1 gave evidence in line with his deposition filed on 31/1/2011. He was not cross examined.
PW2 also gave evidence in line with his deposition filed on 31/1/2011. He was not cross examined.
On the statement of defence and deposition filed by the defendant in this suit, this is the position of the law the depositions remain mere depositions as they were not elevated to the status of evidence before the defence. This being the case, the case of the claimant as presented to the Court was looked at on its merit. This of course includes the Exhibit. (sic)
As the evidence of claimant stands uncontradicted and uncontroverted, 1 enter judgment for the Claimant thus:
1. Defendant to refund to the Claimant the sum of N1,200,690.00 defendant deducted from claimant???s account on 6/3/2008.
2. Defendant to refund N1,086,339.56 excess interest wrongly overcharged.
3. Defendant to refund N740,000.00 deducted allegedly for perfection of legal mortgage.
4. Defendant refund N31.401,00 being alleged VAT for services not rendered.
Defendant to pay Claimant N165,000,000.00 (One Hundred and Sixty Five Million Naira for the unjustified breach of contract, dishonour of claimant’s cheques and the encumbering of property at No.83 Douglas Road, Owerri.
I declare that the Deed of Legal Mortgage dated 14th January, 2010 registered as No. 36 Page Volume 1010 registered by Defendant in the Imo State Military of Lands is fraudulent, illegal, null and void.
Defendant to pay ten percent (10%) interest on the total judgment debt from today date of judgment till same is liquidated.
Punitive damage is hereby favour of Claimant in the sum of N30,000,000.00 (Thirty Million Naira only).
The awards made by the trial judge was exactly what the Respondent claimed in his pleading, except for the punitive damages, reduced to N30Million. The special damages were also pleaded. Because Appellant did not defend the suit and the evidence, as sworn to, produced and adopted by PW1 and PW2, were not challenged, the trial Court felt obliged to award what was claimed. But that evidence did not specify how the N165,000.000.00 (One Hundred and Sixty Five Million Naira), general damages and the thirty million naira punitive damages (N30,000,000.00) which were claimed came about in those figures. The trial Court appeared to have robbed itself of right of discretion, which every Court has, in determining what is due and payable as general damages and/or punitive/aggravated damages, and which must be exercised judicially and judiciously. See Ogbonna Vs Ogbonna (2014) LPELR 22308 CA Incar Motors Vs Benso (1975) 3 SC 177; Hansiatic Ind. Ltd Vs Usang (2003) FWLR (Pt.149) 1563.
Whereas, the trial Court can be said to have held that the special damages were proved as pleaded, and for which evidence was adduced by the Respondent, without any challenge especially, as per the Exhibit G, which showed the wrongful deductions and charges, including, for legal mortgage, registered after the expiration of the loan transaction (i.e. after repayment of the debts), and as analysed by PW2 in the Exhibit N (audit report), the same cannot be said of the general damages, as pleaded. Appellant had argued that the award N30,000,000 (thirty Million Naira) punitive damages damages and N165,000,000.00 (One Hundred Sixty Five Million Naira general
damages) amounted to double compensation, and excessive. I think so too, as there is no way the trial Court explained how it came about the award of a whooping N165,000,000 and N30,000,000, as general and punitive damages, respectively; the former just as speculated by the Respondent. There is no legal basis or principle to premise such exercise of indiscretion by the trial Court. The law permits appellate Court to interfere and tamper with award of general damages by the trial/lower Court, where the Lower Court adopted wrong principles of law to arrive at the award, or where the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages. See Osondu Co. Ltd Vs Akhigbe (1999)11 NWLR (Pt.625)1; Ajuwa Vs SPDCN (2011)18 NWLR (Pt.1279)797; NNPC Vs KLIFCO Nig. Ltd (2011)10 NWLR (Pt.1255) 209; Iwununne Vs Egbuchulem & Ors (2016) LPELR 40515 CA. Ayangoke & Anor Vs Keystone Bank Ltd (2013) LPELR 21806 STB LTD Vs Anumnu (2008) All FWLR (Pt.399) 409; UBA LTD V Odusote Bookstore Ltd (1994) LPELR 3386 (SC) ACME Builders Ltd Vs Kaduna State Water Board & Anor (1999) LPELR 65 SC; (1999)2 NWLR (Pt.590) 288.
Having held that the trial Court provided no basis for the excessive general and additional punitive damages, the said general damages is hereby set aside. But because the Respondent established its claims, of a breach of contract, wrongful dishonour of its cheques, fraudulent infringement of Respondents credit and business, fraudulent encumbrance of its property at 83 Douglas Road, Owerri, the Respondent was entitled to general damages as well as the special damages, and I think, the sum Thirty Million Naira N30,000,000.00 awarded as punitive damages would be enough compensation as general damages for the Respondent.
The issue 4 is therefore resolved, in part in favour of the Appellant, with respect to the excessive general damages of N165,000,000.00 only.
This appeal therefore succeeds, in part, resulting in the setting aside of the sum of N165,000,000.00 (One Hundred and Sixty Five Million Naira) as general damages.
The judgment of the trial Court is therefore affirmed, except with respect to the general damages of N165,000,000.00.
Appellant shall therefore pay the special damages of three million and fifty eight thousand four hundred and thirty naira, fifty six kobo (N3, 058,430.50) awarded by the trial Court and the sum of thirty million Naira (N30,000,000), assessed as sufficient general/punitive damages to the Respondent for the breaches committed by Appellant against the Respondent. The 10% post judgment interest shall remain as the same is statutory. Appellant shall pay the cost of this appeal, assessed at fifty thousand N50,000.00, only.
Note: I must commend the senior Counsel on both sides for their great industry in the depth and quality of their arguments.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I had the advantage and read in draft, the lead judgment prepared by my learned brother, Hon. Justice Ita George Mbaba, JCA which has just been delivered. His Lordship painstakingly considered the issues as recouched and canvassed by the learned counsel for the parties in this appeal, before he advanced his reasons and arrived at the conclusion, that this appeal should succeed in part with the resultant effect that the award of N165,000,000.00 (One Hundred and Sixty Five Million Naira) made by the learned trial judge as general damages should be set aside. I am in agreement that the appeal on this score, ought to succeed in part. I abide by the consequential orders made in the said lead judgment, including the order on costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
K.C.O. Njemanze, Esq. SAN with him, L.A. Njemanze, Esq. and O. J. Odoemena (Miss)-For Appellant
Chidi B. Nworha, Esq. with him, K. J. Uchendu, Esq. and C. C. Achonye, Esq.-For Respondent