CHIEF ANTHONY EDOSA v. FIRST BANK OF NIGERIA PLC
CHIEF ANTHONY EDOSA v. FIRST BANK OF NIGERIA PLC
In The Court of Appeal
Benin Judicial Division
On Thursday, the 14th day of April, 2011
Suit No: CA/B/60/2005
Before Their Lordships
AMIRU SANUSI ……. Justice, Court of Appeal
GEORGE OLADEINDE SHOREMI ……. Justice, Court of Appeal
CHIOMA EGONDU NWOSU-IHEME ……. Justice, Court of Appeal
CHIEF ANTHONY EDOSA -Appellant
FIRST BANK OF NIGERIA PLC - Respondent
P. O. Itua Esq. with I. M. T. Alegeh Esq. For the Appellant
J. O. Odion Esq. with O. J. Semudara Esq. For the Respondent
GEORGE OLADEINDE SHOREMI, J.C.A.: (Delivering the Leading Judgment): This is an appeal emanating from the High Court of Delta State in Asaba delivered on 8th day of December, 2003.
The Claim of the Appellant as Plaintiff in his Further, Further Amended statement of claim reads as follows at page 130 of the Record
"Whereof the Plaintiff claims as follows:
(a) (i) Total amount at the plaintiff's
Said Amount: N110.000.00
(ii) 7% interest per month on the Proposed failed
loan to Prince Peter Osagie for 36 months i.e.
November, 1996 to November, 1999 N252.000.00
(b) (i) Substantial damages N2,000,000.00
(ii) False Imprisonment N4,000,000.00
(iii) Slander: N4,000,000.00
TOTAL : N10,000,000.00
34. Whereof the Plaintiff claims the sum of N10,362,000.00 (Ten Million, Three Hundred and Sixty-Two Thousand Naira) being special and substantial damages against the Defendant for breach of contract false imprisonment and slander"
The case went for full trial and after the consideration of the case of the Appellant and Respondent the trial learned Judge delivered a considered judgment which reads in Part thus -
Upon a thorough consideration of the pleadings and evidence before me, the court is of the view that the Plaintiffs claim ought to succeed in part. Consequent upon the above findings, judgment is entered for the Plaintiff in the following terms:-
1. Sum of N105.000 (One Hundred and Five Thousand Naira)
2. The claims in paragraphs 32(a) (ii) and (i), not having been made out, are hereby refused, and accordingly dismissed.
3. The claims in paragraphs 32(ii) and (iii) having been abandoned, are equally dismissed.
Upon this judgment the Appellant filed notice and grounds of appeal which was amended by order of this court granted on 17/4/08 deemed filed on properly served on 17/4/08.
The 2 grounds of appeal as amended reads as follows;
1) The learned trial judge utterly erred in law when he dismissed the plaintiff's claim for consequential special and general damages and interest after holding that the Defendant was in breach of the duty of care it owed the Plaintiff a sits customer and, therefore, liable in breach of contract and negligence.
2) The learned trial Judge erred in law when he held that the contradictions between the Plaintiff and the Plaintiffs witness No.3 (PW3)evidence were material, when the alleged contradictory evidence was based on unpleaded facts.
The facts of the case as rightly put forward by the Appellant in his brief is that -
The Plaintiff/Appellant hereinafter referred to as the "APPELLANT" was a customer of the Defendant/Respondent hereinafter referred to as the RESPONDENT'' for a long time. The Respondent is one of the leading Commercial Banks in Nigeria. The Appellant who is a licensed money lender was approached by one Prince Peter Osagie for a loan of N100,000.00 (One Hundred Thousand Naira) sometime in November, 1996 at an agreed interest rate of 7% (seven percent) per month.
The Appellant agreed to grant the said loan to the said Prince Peter Osagie.
On the 18th day of November, 1996, the Appellant went to the Agbor Branch of the Respondent Bank to withdraw the sum of N105,000'00 (One Hundred and Five Thousand Naira) out of which sum the Appellant intended to give the said loan of N100,000.00 (One Hundred Thousand Naira) to the said Prince Peter Osagie. The Appellant went to the said Respondent Bank very early in order to be attended to on time. The Appellant subsequently fulfilled all withdrawal formalities as requested by the Respondent. The Appellant later took his seat in the respondent's Banking Hall patiently waiting for his name or number to be called. To the Appellant's rudest shock he found that all those who came to the Bank much later than himself have been paid and had left the Respondent's Bank to their various destinations. This prompted the Appellant to enquire from the Respondent's cashier why he had not been paid. The said cashier Mr. Nduka Jacob asked the Appellant to go and wait for his money which instruction the Appellant complied with and went and sat down while the Appellant was still waiting for his money to be paid to him by the Respondent's said paying cashier' other customers of the Respondent's bank later came to Bank collected their money and left, leaving the Appellant in the Bank. After several hours, the Appellant went back to the said paying cashier and asked again why he has not still been paid his money after several hours? To the Appellant's further shock, the said paying cashier of the Respondent rudely ordered the Appellant to go and sit down and stop disturbing him.
Consequently, the Appellant went to lodge a complaint against the said cashier to the respondent's Savings Officer one Mr. Stanley Okonedo. The said savings officer later went to the cashier to inquire why the Appellant has not been paid. The said savings officer later informed the Appellant that someone had signed and collected the Appellant's money and the Appellant denied ever collecting any money. The said Saving Officer subsequently took the Appellant and the cashier to the acting Branch Manager's Officer. At the Manager's officer there were accusation and counter accusation between the said paying cashier of the Respondent and the Appellant. As result the Respondent's said the Acting Manger took the Appellant and the said paying cashier to the Police Station at Agbor where they were detained. The Appellant was released on bail the following day. The Appellant was not also paid his money he wanted to withdraw from his Account in the Respondent Bank.
The Appellant later consulted his Solicitors S.O. Agwinede & Co. To make a formal demand for his money from the Respondent, which instruction the Appellant said Solicitors carried out by writing Exhibit 'A' to the Respondent and the Respondent also replied to Exhibit 'A' by Exhibit 'B'. the Respondent by Exhibit ,C, informed the Appellant through his solicitors that it was ready to restitute the Appellant's account with the said sum of N105,000.00 (One Hundred and Five Thousand Naira) on the condition that the Appellant withdrew pending or threatened actions against the Respondent. However, the Respondent failed to honour its promise in Exhibit C, and the Appellant was consequently constrained to file action against the Respondent at the Owayibo High court in Delta State.
Part of the judgment had earlier been quoted above.
In line with the rules of this court parties exchanged briefs of argument and at the hearing of the appeal on 20th day of January, 2011 Mr. Itua for the Appellant referred to his brief dated 2/6/08 filed on 23/9/09. He adopted and relied on same as his argument in favour of the appeal and urged the court to allow the appeal and set aside the judgment of the lower court.
Mr. Odion for the Respondent adopted and relied on his brief dated and filed on 22/10/09 and he urged the court to dismiss the appeal.
The Appellant distilled two issue each from Grounds 1 & 2.
ISSUES FOR DETERMINATION
In the most respectful view of the Appellant the following issues arise for determination in this appeal. They are as follows:
BASED ON GROUND 1
(a) Whether the learned trial Judge was right when he dismissed the Appellant's claims for consequential damages and interest after holding that the Respondent was liable in negligence and breach of contract?
BASED ON GROUNDS 2
(b) Whether the alleged contradictions in the evidence of the Appellant and the PW3 (Prince Peter Osagie) were fatal to the issue of the proposed loan transaction between the Appellant and the PW3, when the alleged contradictory evidence were based on unpleaded facts?
On the other hand the Respondent distilled one issue thus:
"Was the learned trial Judge right in refusing the Appellant's claim for special damage having found the Respondent liable for non payment of the said N105,000"
It should be noted that the Appellant distilled one issue from each of his grounds of appeal, therefore the appeal will be treated on the issues as distilled by the Appellant.
Let me without hesitation deal with Issue 2 from ground 2 of the notice of appeal i.e. whether the alleged contradiction in the evidence of the Appellant and PW3 were fatal to the issue of the proposed loan transaction between the Appellant and PW3 when the alleged contradictory evidence were based on unpleaded facts.
As much as the issue and the ground from which it is distilled seems to be misleading and vague notwithstanding. I will treat it as much as it is relevant. The Appellant submitted that the learned trial Judge fell into a fundamental error when he based the alleged material contradictions in the evidence of the Appellant and PW3 on unpleaded facts on matter on which issues were not joined by the parties at the trial court. He referred to the judgment of the lower court which reads thus:
In his judgment the learned trial court made the following findings on the issue of the Appellant's claim on the failed loan transaction between the Appellant and the PW3 (Prince Peter Osagie)
Both the Plaintiff and Osagie testified in earlier proceedings before my learned brother Ehiwario I. The Proceedings is Exhibit (F" in these proceedings the Evidence of Peter Osagie, the PW1 therein is at page 1. In the 2nd paragraph, he testified that the Plaintiff used to lend him money from time to time for his business. Under cross examination, this witness stated as follows:-
"I have always borrowed money from him all the time. I have always collected money on loan from the Plaintiff in his house at Ebelle. I receive the loan in cash not cheque. The loan are often secured when they are granted".
The Plaintiff herein testified as PW3 in paragraph 3 of page 8 of Exhibit 'F' he stated as follows under cross examination.
"There was no specific term within which the proposed loan with the PW1 was to be paid. We agreed that he should pay 7% of the principle as interest until he is able to repay all the money"
From this excepts of the former proceedings, it is clear that the PW3 contradicted himself on the issue of the number of times he had taken a loan from the Plaintiff, Again while the Plaintiff stated in this court that the duration of the loan had not been agreed upon, he stated (sic) Exhibit "F" that there was no fixed period for repayment. The PW3 stated that it was for a period of 3 months. If the loan is for 3 months what is the basis of the claim for 36 months? If it is for an indeterminable period, the same question would arise. In view of the evidence of the Plaintiff and the PW3 on this issue, and the contradictions on the issue of duration of the loan, the court is hard put to believe that there was any agreement whatsoever. The court considers the issue of duration or period of repayment material for the purposes of an award under that head of claim. While it is conceded that having withdrawn money, a party may put it to use in whatever manner he pleases, where it is claimed that such money was for a particular business, the Plaintiff must plead and give satisfactory evidence as to the nature of the business upon which the claim is based. In my view, therefore, he is not entitled to the claim for interest for the period November. 1996 – November 1999, as claimed in paragraph 33 (a) (II) of his Further Amended Statement of Claim".
The Appellant dwelt so much on the evidence regarding the duration of the loan and he complained that the trial Judge should not have made use of the previous evidence of the 3rd PW as regard the period of the loan. He argued that from the state of the pleadings he could not see how the Judge could base his findings on it. He referred to various authorities FOWOKAN V. IDOWU & ANOR (1969) All NLR 121; N.I.D.B. LTD & ANOR V. ADVANCE BEVERAGES IND. LTD. 2002 WRN, Page 51; GEORGE V. DOMINION FLOWER MILLS LTD (1963) ANLR 70.
He further argued that even if the findings of the learned trial Judge was right the alleged contradiction are not fatal to the claim for consequential damages and interest on the failed loan between the Appellant and 3PW. He then urged the court to resolved the issue in favour of the Appellant.
In his submission the Respondent at page 5 of his brief said that the trial Judge made a crucial finding of fact on the nature of the business the Appellant had intended to put the money into. The trial Judge did not believe the Appellant that he was to loan the money to PW3 at an interest rate of 7% per annum for 3 years. He submitted that an appellate court would not interfere with crucial finding of facts made by a trial Judge. His finding of fact should not be up disturbed or reversed by the Court of Appeal. He referred to AGOMA V. GUINNESS NIG LTD. (1995) 2 NWLR (380) 672 687-688 …. A-B; AWARA V- ALALIBA (2002) 18 NWLR (Pt 799) 484 SC; FARO BOTTLING CO. LTD V. OSUJI (2002) 1 NWLR Pt 748 311.
He submitted that it is trite law that the only basis for the Appellate court to reverse the finding of facts by a trial court is when such findings of fact is shown to be perverse or the trial court did not follow the age long principle of evaluation of evidence as spelt out in MOGAJI V. ODOFIN (1978) 4 SC 94.
I have carefully read the judgment with regard to the issue raised by the Appellant as to the grant of interest. Part of the judgment relating to this issue had been quoted above and I agree with the learned trial Judge that the claim of interest as per the Appellant's claim is not proved. The existence of a business venture should be separated from anticipated profit or probable loss if the so called business is not realized. A business venture can be said to be a commercial or industrial intercourse or transaction with commercial or trading flower. It could be perilous and be a risky undertaking and therefore be marked by its vulnerable nature as there is always a possibility of a loss I fail to see how a loss of profit can be said to have been occasioned by reason of a mere existence of a business proposition where there are no facts to show the risk taken to attend the nature and character of the claim made, per Acholonu JSC in NEKA B.B.B CO LTD V. ACB LTD (2004) 2 NWLR Pt 858 521 at 543.
The learned trial Judge referred to the nature of the account kept at the Respondent bank as a savings account and not business account. A Savings account naturally will attract interest in the bank. The evidence of the Appellant and his PW3 is materially contradictory. The Appellant can only succeed on the basis and quality of evidence produced by him. Failure to prove specific interest will result in failure to obtain judgment thereon. See BENDEL FEED & FLOOR MILLS LTD V. N.I.M.B LTD (2000) 5 NWRL Pt 655 29. In the case of S.A.E.P & U V. UBA PLC (2010) Pt 1221 17 NWLR 192 at 207 -208 Para G-A 208 Paras. E-F. The Supreme Court on Principles governing claim and award of interest say the courts from time immemorial are reluctant to award interest generally thereby giving rise to the rule of law that interest must not only be pleaded but also strictly proved. Thus where interest is being claimed as a matter of right the facts of the entitlement must be pleaded by the claimant followed by evidence to establish same. It is only when the court is satisfied after reviewing the pleadings and evidence that it may award same. The case of U.B.N. v. SEPOK (NIG) LTD (1998) 12 NWLR (Pt.578) 439 was referred to and approved. The basis of the claim for interest must be made manifest it is not enough to merely say that the plaintiff is claiming interest.
The findings of the lower court on this issue is not perverse and therefore this court will not interfere as there is no reasons to warrant this court's interference. This issue is resolved in favour of the Respondent and on this issue the appeal can not stand.
Now to Issue One as to whether the learned trial Judge was right when he dismissed the Appellant's claim for consequential damage and interest after holding that the Respondent was liable and negligent for breach of contract.
The question of interest had been dealt with, therefore I shall limit myself to the issue of damages. The Appellant cited many cases to support his argument that the trial court ought to have awarded damages particularly the case of NZERIBE V. DAME ENG. LTD (1994) 8 NWLR Pt 361, 124, UNITED BANK FOR AFRICA PLC V. BTL INDUSTRIES LTD (2004) 18 NWLR Part 904 page 180. He therefore urged the court to award the Appellant the appropriate consequential damage.
The Respondent cited the case of SPDC NIG. LTD V. TIEBO VII (2005) 9 NWLR (Pt 931) 439 Paras. C-E saying that special damage should be strictly proved. He also relied on ORIENT BANK (NIGERIA) PLC V. BILANTE INT LTD (1997) 8 NWLR (Pt 515) 91-92 Paras G-A Where this court restated the position of the law in the following manner.
'It is the law that special damage must be specifically claimed and proved. The degree of Strict proof required in relation to special damage depend on the character of the acts which produced the damage and circumstances under which the sets were done. Strict proof of special damages means no more than that the evidence must show the same particularly as is necessary for its proof. It should therefore consist of evidence of a particular loss which are exactly known and accurately measured"
In his claim which I have earlier stated special damage which he referred to as special and substantial damage N10,000,000 Ten Million Naira in support of this claim.
The Appellant offered the following evidence at page 86 of the record of proceedings page 86 of Records reads:
"As a result of the incident, I was imprisoned and suffered humiliation. I was called a thief. I want the court to order the defendant to repay the N105,000. I am also claiming the sum of 4 Million Naira for false imprisonment and the same amount for slander. I want N2 Million as general damages. I want the court to ask the defendant to pay 7% interest P.A. on the proposed said loan to Prince Peter Osagie for 55 months starting from November, 2020 – May, 2001 which brings the total to N283,000. The interest is which the Peter would have being paying on the loan per months. I am claiming a total of N10,495,000 as special and general damages".
From the authorities and evidence it is very clear that Appellant did not meet the standard of proof expected of him. Therefore he had failed woefully to establish his claim for "substantial damages".
There is no doubt that the Appellant had succeeded in his case of negligence on the part of the Respondent.
From the above evidence he was taken to the police and was arrested and detained.
The Respondent also promised to give him N50,000 as compensation which he refused.
Can he be said to have not been humiliated? Is he then to go without being compensated for the humiliation as a result of the negligence of the Respondent? I believe the Appellant deserves some kind of award by way of damage the description of that damage to be awarded is of no consequence any description is merely an academic exercise.
The Respondent bank had acted negligently. In OKAFOR & ORS V. OKITIAKPE (1973) 1 NWLR 317. It was held on appeal that where a trial Judge did not award general damage under the various heads claimed but awarded a lump sum to cover all the sub heads claimed would not be disturbed as it was neither unfair nor violate any fundamental principle of law.
The description of the damage to be awarded is of no consequence.
I must now decide what the Appellant is entitled to as nominal damage such damage as defined as nominal damage which is defined in 11 Halsbury Laws of England (3ed) 218 at 221 thus
"a sum of money that may be spoken of but that has no existence in point of quality or a mere peg on which to hang cost. In practice however a small sum of money is awarded. Such damage must be distinguished from small or contemptuous damage. see CONSTANTIVE V. IMPERIAL HOTELS LTD. 1944 2 AER 171. The trial Judge was therefore wrong to have not awarded any damage to the Appellant.
Quantum of damage like any other issue in our civil procedure is a matter of evidence where one gives no evidence that can help in the assessment of damages he is normally entitled to nominal damage. See BAKER MARINE v. CHEVRON (2006) 6 supreme court of Nig. Judgment page 124 (pp.139 -140). The issue is therefore resolved in favour of the Appellant I would therefore assess nominal damage in this case in the sum of N500,000. The appeal therefore succeed in part. I award a cost of N30,000 in favour of the Appellant.
AMIRU SANUSI, J.C.A.: I had the advantage of reading in draft form, the judgment prepared by my learned brother Shoremi, JCA. I am in entire agreement with the reasoning and conclusion arrived at, that the appeal has merit especially on the award of nominal damage. I therefore endorse the nominal damage awarded as well as the cost of N20, 000.00 awarded in favour of the appellant herein.
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.: I have had the advantage of reading before now the Judgment just delivered by my learned brother, SHOREMI JCA. He has exhaustively dealt with the relevant issues for determination. I adopt the reasoning therein and conclusion as mine.
There is no doubt that the dignity of the Appellant has been injured and it will be unjust to let him go empty handed, moreso as the Respondent Bank failed to make good the promise to pay the Appellant N50,000 as compensation. I also award nominal damage in this appeal in the sum of N500,000.
In effect, the appeal succeeds in part. I abide by the award of N30,000.00 costs in favour of the Appellant.