ELECTRONIC CITATION: LER [2019] CA/L/461/2016

AREAS OF LAW:

Appeal, Court, Damages, Fair Hearing, Law Of Banking, Law Of Contract, Law Of Evidence, Practice And Procedure

SUMMARY OF FACTS

The Claimant/Respondent, who operates an account in one of the Defendant’s /Appellant’s branches in Lagos, obtained an ATM card from the Defendant Bank. Whilst in the United Kingdom, she used the ATM Card in Barclays Bank Machine, in Broadway Stratford London to withdraw 800 pounds, her account was debited but the money was not released to her. She made a report on Exhibit CWA, a copy of the dispute form and the Defendant responded by Exhibits CWB and CWC to the effect that investigation was ongoing and a refund will be made within 45 days and same was made. The Claimant/Respondent instituted an action at the Lagos State High Court, Badagry Division against the Defendant/Appellant as a result of the hardship she suffered, claiming the sum of N15, 000,000.00 being damages for breach of contract and cost of the action. The Defendant on the other hand, stated that the ATM Card is owned by Master Card International and it is therefore liable based on the limited liability clause as stated in the Master Card Chargeback guide hence, Master Card being the disclosed principal of the ATM Card should be sued and held liable. The trial court in its judgment held that the Claimants claim for damage succeeds and awarded the sum of N3, 000,000.00 (Three Million Naira Only) as damages for breach of contract and N100, 000.00 as cost of action. Dissatisfied with the trial court’s judgment, the Defendant has filed an appeal before this court. The Respondent raised a preliminary objection to the appeal that by virtue of Section 241 (2) (c) of the 1999 constitution of Nigeria and Section 14 (1) of the Court of Appeal Act, 2004, leave should have being sought for by the Appellant as it is an appeal dealing with mixed law and facts.

HELD

Appeal Dismissed

ISSUES FOR DETERMINATION

• Whether it was proper for the Learned Trial Judge to have admitted and relied on evidence of facts not pleaded in her judgment (grounds 2 and 3 of the Grounds of Appeal)

 

• Whether there were contradictions in the evidence of the Respondent to affect its credibility (Ground 1 of the Grounds of Appeal)

 

• Whether from the evidence before the court and the facts pleaded, the Appellant was liable in breach of contract (Grounds 5, 6, 7 and 11 of the Grounds of Appeal)

 

• Whether in the circumstances of the case the Learned Trial Judge was right grant relief to breach of contract (Grounds 8 and 9 of the Notice of Appeal)

 

• Whether the Learned Trial judge was fair to the Appellant when the lower court did not consider nor pronounce on the material issues raised by the Appellant in its defence and whether such amounted to a denial of fair hearing (Ground 10 of the Grounds of Appeal)

 

RATIONES

DUMPING OF DOCUMENTS – STATUS OF A DOCUMENT DUMPED BEFORE A COURT

The document was just dumped on the lower court without any witness speaking to the document. In the circumstance, the lower court and indeed this court shall not accord it any probative value. In Okereke vs. Umahi & Ors (2016) LPELR-40035 (SC), the apex court per Sanusi JSC at pages 65-67 held:

  “Now on the issue of dumping of these documents on the Tribunal, this Court decided in replete of numerous authorities to the effect that in any case whether election or non-election matter, any party tendering documentary evidence has the task of linking such documents to the specific aspects of his case for which such documents so tendered be leading evidence of the purport of the document in relation to the aspect of his case. In other words, he should not merely dump them in the Court or Tribunal and expect the Tribunal or Court to embark on speculation in determining the purport for which it was tendered or to which aspect of the case such document relates, without being guided by any oral evidence led in open Court. Infact, this Court in the case of Action Congress of Nigeria (ACN) vs. Lamido & others (2012) LPELR 782J (SC) had this to say at page 38 per Fabiyi JSC: –

“It is not in doubt that the stated Exhibits were not demonstrated in the open Court. They were the type of documents which this Court affirmed as rightly expunged by the Court of Appeal in Buhari vs. INEC (2008) 19 NWLR (Pt. 1120) 246 at 414.This is so, as there is a dichotomy between admissibility of documents and the probative value to be based on relevance, probative value depends not only on relevant but also on proof. Evidence has probative value if it tends to prove an issue.”

I must say, that it is not the duty of a Court or Tribunal to act within the realm of conjuncture in determining what a document so tendered relates to, or for what purpose it was meant to serve by tendering it, or to proceed to embark on making inquiry into the case outside the Court not even by examining of such documents which are in evidence but not examined in open Court. A judge is an adjudicator and not an investigator. See Queen v. Wilcox (1961) 1 SCN LR 296; (1961) 1 All NLR 633, Dennis Ivienagor vs. Henry Osala Bazuaye (1999) 6 SCNJ 235 at 243 Fawehinmi vs. Akinlaja (2010) LPELR 8963.

The petitioner’s/appellant’s failure to lead oral evidence to link the documents with what he pleaded in the petition therefore justifies the Tribunal to refuse to act on them as it is not the Tribunal’s function to speculate on what such documents were meant to specifically establish or prove.”

See also Bakut & Anor vs Ishaku & Ors (2015) LPELR- 41858 (CA); Alapa & Anor vs. INEC & Anor (2015) LPELR-41775 (SC)”. PER E. TOBI,J.C.A

ISSUES FOR DETERMINATION – DUTY ON COURTS TO CONFINE ITSELF TO ISSUES RAISED BY PARTIES

“This court cannot go outside the issues conversed by the parties or brought before it by the parties. See Umeh vs. Ottah (2011) LPELR 4853 (CA); Osuji vs. Ekeocha (2009) 6-7 SC (Pt. II) 91”. PER E. TOBI,J.C.A

UNPLEADED DOCUMENT – STATUS OF EVIDENCE GIVEN ON UNPLEADED DOCUMENT

‘The law is clear, which is that, a court cannot base his decision on a document not pleaded or evidence not given on it. Evidence given over a document not pleaded in law comes to no issue and similarly document pleaded upon which no evidence is adduced is deemed abandoned. See; Igbodim & Ors vs. Obianke & Ors (1976) 9-10 SC (reprint 108; Ilodibia vs. Nigeria Cement Company Ltd, (1997) LPELR 1494 (SC); Nkuma vs Odili NSCQR Vol. 25 (2006) 687; Gbadamosi Olorunfemi & Ors vs. Chief Rafiu Asho NSCQLR Vol. 1 (2000) 431.” PER E. TOBI,J.C.A

CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION WITNESS – NATURE OF CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION WITNESS THAT WILL BE FATAL TO ITS CASE

“The contradiction that will affect the case of the party whose evidence is said to be contradictory has to be relevant to the issues at stake or better put the life issues between the parties before the court. In legal parlance, such contradictions must be material to the case at hand to be taking seriously by the court. In Princent & Anor vs. State (2002) 12 SC (Pt. 1) 137, Iguh, JSC held:

“The law is firmly settled that for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to its case, such conflict or contradiction must be material, substantial and fundamental to the main issues in controversy between the parties before the court thus creating some doubt that the accused is entitled to benefit from. See; Nasamu vs. The State (1979) 6-9 SC 153, Onubogu vs. The State (1974)1 All NLR (Pt. 2) 5; Ibe vs. The State (1992)5 NWLR (Pt. 244) 642 @ 649; Azu vs. The State (1993)6 NWLR (Pt. 299) 303@316; Wankey vs. The State (1993)5 NWLR (Pt. 295) 542@552 etc. where conflict or contradictions in the evidence of the prosecution witnesses raise no doubts as to the guilt of the accused, the only duty of the trial Judge is to observe and comment on them as such and no more. Such contradictions are not fatal to the prosecution’s case. See Inyere Akpuenya vs. The State (1976)11 SC 269@276; Sunday Emiator vs. The State (1975) 9-11 SC 107@112; Azu vs. The State (1993)6 NWLR (Pt. 299) 303@316 etc.”

Similarly, the apex court per Onnoghen, JSC (as he then was) held in Ogbu & Anor vs. State (2007) 5 NWLR (Pt. 1028) 635 as follows:

 “In the case of Enahoro vs. The Queen (1965) NMLR  265 at 281-282, this court considered the question as to what constitutes material contradictions that would warrant a reversal of a judgment of the lower court in the following terms: –

“In the case of Omisade, we pointed out that where the ground of appeal relied upon was that of contradictions in the evidence of witnesses, it is not enough to warrant a reversal of judgment merely for the appellant to show the existence of those contradictions without showing further that the trial Judge did not avert to, and consider the effects of these contradictions. Besides, we take the view that for the appellant to succeed on the ground of contradictions in the evidence of witnesses for the prosecution, the contradictions must be shown to amount to substantial disparagement of the witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses.”

See; also Galadima vs. State (2017) LPELR 43469 (SC); Ahmed vs. The State NSCQLR Vol. 8 (2001) 275”. PER E. TOBI,J.C.A

BANKER/CUSTOMER RELATIONSHIP- CONTRACTUAL NATURE OF A BANKER/CUSTOMER RELATIONSHIP

“Once a customer opens an account and deposits money in the account there exist a customer/ Banker relationship between the customer and the bank. This is seen as a contractual relationship in which the bank is under obligation to honour a request from the customer to withdraw money from the account once the account is founded it is funded. Where the bank fails to honour such legitimate request, the bank will be found liable for breach of contract. In Zenith Bank vs. Igokwe (2018) LPELR -44777 (CA), this court per Oseji, JCA held:

   “The law is also settled that a plaintiff may claim for damages where his cheque was wrongfully dishonoured. In other words, a refusal by a banker to pay a customer’s cheque upon presentation when there is in his account an amount equivalent to that endorsed on the cheque belonging to that customer amounts to a breach of contract for which the banker is liable in damages. See; Haston (Nig) Ltd Vs. ACB Plc. (2002), 11SCM 119.  Where a banker dishonours a customer’s cheque without justification, it is liable to the customer in damages for injury to his reputation. See Balogun Vs. National Bank Of Nigeria Ltd (2012) 1 BFLR 194 at 203; Dike Vs. African Continental Bank Ltd (2000) 5 NWLR (PT. 657) 441; UBA Vs. Union Bank Of Nigeria Plc (1995) 5 NWLR (PT. 405) 72. Thus, a bank is under obligation to honour a cheque issued by a customer, if such customer has enough fund in his account to satisfy the amount payable on the cheque issued. Failure or refusal by the bank to honour the cheque amount to a breach of contract and would render the bank liable in damages. See also Citibank (Nig) Ltd Vs. Ikediashi (2014) LPELR 22447 (CA).

In the instant case, it is not in dispute but clearly accepted by the Appellant that as at the 16/6/2010 when the Respondent issued a cheque for the sum of N130,000.00 for payment by the Appellant the Respondent had the sum of more than N1,000,000.00 in his account. Having found that the refusal to pay the amount on the cheque was wrongful and having regard to the circumstances of the case the learned trial Judge in the exercise of his discretion and guided by the applicable principle awarded the sum of N5,000,000.00 as general damages.”

This is a position that has long been established by the Supreme Court in the case of Balogun vs. National Bank Nig. Ltd (1978) ANLR 63 where the apex court per Idigwe JSC held:

“Therefore, it has long been established that refusal by a banker to pay a customer’s cheque when he holds in hand an amount, equivalent to that endorsed on the cheque, belonging to the customer amounts to a breach of contract for which the banker is liable in damages”.

• PER E. TOBI,J.C.A

BANKER/CUSTOMER RELATIONSHIP – WHETHER AN AGREEMENT REGULATING THE RELATIONSHIP BETWEEN A BANKER AND ITS CUSTOMER CAN BE INFERRED

“It is therefore of no moment for the Appellant to argue that since the ATM Machine that the Respondent used is not that of the Appellant then the Appellant is not liable.  The Respondent does not need to prove that facts as it can be inferred in line with the globalization of banking transaction. It is also implied from the ordinary course of business. In Linton Industrial Trading Company Nig Ltd vs. CBN Ltd (2013) LPELR 22036(CA), this court held:

“In the instant case, no written contract or agreement was presented in evidence detailing the terms of contract if any as regards the scope or extent of responsibility to be borne by either party. However, in the absence of an express agreement between the parties, an agreement regulating the relationship of Banker and customer can be implied from the ordinary course of business between them. See Angyu Vs Malami (1992) 9 NWLR (PT 264) 242.”

The Respondent’s money is in the custody of the Appellant and therefore the contractual relationship between them gives the Respondent the upper hand as the creditor and the Appellant as debtor. Stretching it further the Respondent is the master while the Appellant is the servant. See Fidelity Bank vs. Onwuka, (2017) LPELR 42839(CA); Wema Bank vs. Osilaru, (2008) 10 NWLR 9 (Pt. 1094) 150; Ecobank vs. Anchorage Leisure Ltd & Ors, (2018) LPELR-45125 (SC); Sani Abacha Foundation for peace & Unity vs. UBA Plc (2010) 2 FWLR (Pt. 527) 4519; Bank of the North Ltd vs. Yau, (2001) 10 NWLR (Pt. 721) 408”. PER E. TOBI,J.C.A

BANKER/CUSTOMER RELATIONSHIP – NATURE OF RELATIONSHIP BETWEEN AN ISSUING BANK AND A PAYING BANK

“When the ATM card is used in another ATM Machine, the account of the customer is debited in his bank and the paying bank will dispense money to the customer as if he is their customer. In Nasarrawa Enterprises Ltd vs. Arab Bank (Nig) Ltd (1986) LPELR 1942 (SC), the Supreme Court held:

“The relationship, duties and obligations of an issuing bank and a paying bank are set out by the learned authors of the 3rd Edition of Halsbury’s Laws of England at paragraph 138 as follows: –

“The contract between the issuing or opening banker and the paying or negotiating (intermediary) banker partakes of a dual nature. The relationship is partly that of principal and partly of principal and agent mandatory and mandatory. It depends too, in some measure, on the nature of the credit, whether it be revocable or irrevocable. In order that he may claim to be reimbursed for any payment he makes under the credit, the banker paying must obey strictly the instructions he receives for by acting on them he accepts them and thus enters into contractual relations with the opening or issuing banker”

• PER E. TOBI, J.C.A

COURT – DUTY OF COURTS TO DO SUBSTANTIAL JUSTICE

“There are general principles but every case is to be handled within the particularity of the facts of the case. See, Akinolu vs. State (2013) LPELR 21876. The theory of the matter and the practicality of the facts are two different things. The court exists to do justice. This is the main duty of the court and in this instance; it is substantial justice and not technical justice. See; Akinolu vs. State (2013) LPELR (CA); CBN vs. Interstella Communication Ltd & Ors (2017) LPELR 43940; Saleh vs. Monguno & Ors (2006)7 SC (Pt. ii) 97.  The main duty of any court is to do justice in its real and true sense and not according to technicality or sentiment. See; Umanah vs. NDIC (2016) LPELR 42562 (SC); PML (Nig.) vs. FRN (2017) LPELR 43480 (SC); Osareren vs. FRN (2018) LPELR 43839 (SC) In Green vs. Green (2001) FWLR (Pt. 76) 795, the Supreme Court held:

  “The sole aim of the Court is to seek justice. True, it must be justice according to law, but when parties are available, who are so affected by a claim, pleadings evidence, and a subsequent order would spell detriment, or indeed, incalculable wrong, to what they consider their right, and they have either, technically or inadvertently, been excluded from stating their own side to the story, it is, with respect, waving goodbye to justice!”

• PER E. TOBI, J.C.A

PRIVITY OF CONTRACT – GUIDING PRINCIPLE ON THE DOCTRINE OF PRIVITY OF CONTRACT

“The law on privacy of contract is clear and cannot be disputed. In The Vessel Leona II vs. First Fuels Ltd (2002) 12 SC (pt 1) 55, the apex court per Ayoola, JSC held:

“Ordinarily, where a document is a contractual document the competence of a party to seek its rectification must be determined within the privity rule and not on the basis of a benefit that a stranger may derive from the contract. The law is clear that as a general rule a contract cannot confer rights or impose obligations on any person except the parties to it or, as an exception to the general rule, a person on whom such parties confer a benefit who is to be distinguished from a person who may benefit from the contract. That a person may benefit from the performance of a contract does not alone give him a right to enforce the contract”

Similarly, in Basinco Motors Ltd vs. Woermann-Line & Anor (2009) 13 NWLR (Pt. 1157) 149, Adekeye, JSC held:

“From the forgoing, it becomes really necessary to explain what is privity of contract. Portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In short only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his…. him liable upon it. Moreover, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract. Negbenebor vs. Negbenebor (1971)1 ALL NLR 210; Ikpeazu vs. A.C.B. Ltd. (1965) NMLR 374; K.S.O. Allied Products, Ltd vs. Kofo Trading Co. Ltd. (1996)3 NWLR (Pt. 436) pg. 244; Alfortrin Ltd vs. A. Y. (1996)8 NWLR (Pt. 475) pg. 634. The foregoing doctrine admits of exceptions which are not applicable to the position of a Notify Party in a bill of lading on any relationship based on a bill of lading. It is however now settled by a plethora of cases that by virtue of section 375(1) of the Merchant Shipping Act, 1990 only a consignee of the goods named in a bill of lading or an endorse whom the property in the goods have passed and by virtue of those facts will be able to sue on a bill of lading contract”

• PER E. TOBI, J.C.A

EXEMPTION CLAUSE – WHETHER AN EXEMPTION CLAUSE IN A CONTRACT CAN AVAIL A PARTY WHO IS GUILTY OF A FUNDAMENTAL BREACH OF THE CONTRACT

‘’In Eagle Super pack (Nig.) Ltd vs. A.C.B. Plc (2006) 19 NWLR (Pt. 1013) 20, the apex court per Tabai, JSC held:

“An exemption clause in a contract may not avail a party who has been guilty of a fundamental breach of the contract. See; Chitty on Contract 23rd Edition para. 732 pg.329”.

It is too late now for the Appellant to invoke whatever it terms as an exemption clause since this was not brought to the notice of the Respondent as at when the contract was entered. See; Akinsanya vs. UBA Ltd (1986)4 NWLR (Pt. 35) 273: Narumal & Sons (Nig.) Ltd vs. Nigeria Benue Trans. Co. Ltd (1998) 4 SC (Pt. 2) 116.’’ PER E. TOBI, J.C.A

AWARD OF DAMAGES – POWER OF COURTS TO AWARD DAMAGES

“The point which is clear and cannot be disputed is that a court has powers to award damages for wrongs done and it is also true that an appellate court can vary the award or amend same. See; Chukwuanu vs. Uchendu & Ors (2016) LPELR 41022 (CA); Newbreed Organisation Ltd vs. Erhomosele (2006) 2 SC (Pt. 1) 136; Onwuka & Anor vs. Omogui (1992) 3 NWLR (Pt. 230) 393. In Ahmed & Ors vs. CBN (2012) 7 SC (Pt. II) 1, the Supreme Court held:

  “I have to emphasise that the decisions of this Court supported that the award of damages is purely within the precinct of the trial Court. The power to award damages by the trial Court is exercised in the circumstance of a judicious estimation of the loss to the victim once a breach of contract has been established.”

• PER E. TOBI, J.C.A

DAMAGES – FEATURES OF DAMAGES

“A party in an action whom a court has established has been wronged is entitling to damages which the court will assess as flowing from the wrong he has suffered. There are two broad aspects of damages, special and general damages. Special damages must be specifically pleaded and proved. General damages on the other hand do not need to be specifically pleaded and proved. General damages serve as compensation for the wrong suffered, it flows as natural consequence of the wrong suffered.  See; NBC Plc vs. Ubani (2014)4 NWLR (Pt. 1379) 421; G.K.F. Investment (Nig.) Ltd vs. NITEL Plc (2009)3 NWLR (Pt. 488) 7107’”. PER E. TOBI, J.C.A

CONCEPT OF FAIR HEARING – IMPORTANCE OF THE CONCEPT OF FAIR HEARING

“The concept of fair hearing is key to any judicial process. When there is a denial of fair hearing, the all process becomes a nullity and complete waste of precious judicial time and resources.  Realizing the importance of the concept of fair hearing, a counsel who is a minister in the temple of justice should not use it as a casual play game when he sees that a case is not going in his favour. Once it is raised a court should look at it closely. A party will be said to have been denied fair hearing when he is not given opportunity to present its case or the case is not conducted in line with due process. See INEC vs. Musa (2013) 17 NWLR (Pt. 796)412; Ntukidem & Ors vs. Oko & Ors (1986) 5 NWLR (Pt. 45) 909: Daniel vs. FRN (2014) 8 NWLR (Pt. 1410)570”.PER E. TOBI, J.C.A

CLAIM FOR INTEREST – WHETHER INTEREST CAN BE CLAIMED AS OF RIGHT

“Though interest can be claimed as of right or based on statutory provision the lower court will only feel save to make such order when there is a claim for same as the law is that a court cannot grant a relief not sought. However, the law is also settled that if the interest is granted based on statutory provision will be no requirement for it to be pleaded or requested for as this will meet the tenet of justice. See Ekwunife vs. Wayne West Africa Ltd (1989) 12 SC 92. The Supreme Court in NPA vs. Aminu Ibrahim & Co & Anor (2018) LPELR-44464 (SC) per Peter-Odili at page 66-68 held:

 

  “On the matter of pre-judgment interest, the law is clear that such interest is awarded where there is an agreement for payment of interest, in which case a claim as such must be pleaded and proved as it would not do to just state a claim for pre-proof of same. However a Court can grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party even where such a party did not plead or adduce evidence to prove it as such interests naturally accrue from the failure to pay the sum involved over a period of time thereby depriving a party from the use and enjoyment of the sum involved. That in my humble view is substantial justice…….

A trial Court can award judgment interest. The authority to award judgment interest is enshrined in the Rules of Court…..”

 

• PER E. TOBI, J.C.A

STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria 1999

Court of Appeal Act, 2004

Lagos State High Court Rule