Legalpedia Citation: (2024-05) Legalpedia 53371 (CA)

In the Court of Appeal

Holden At Abuja

Thu May 2, 2024

Suit Number: CA/LAG/CV/568/2020

CORAM

Obietonbara Owupele Daniel-Kalio Justice Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice Court of Appeal

Ibrahim Ali Andenyangtso Justice Court of Appeal

PARTIES

UNION BANK OF NIGERIA PLC

APPELLANTS

1. NURAFF BUREAU DE CHANGE
2. ALHAJI NURADEEN ABDULAHI

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACT, EVIDENCE, FINANCIAL CRIME, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

As at January, 16, 2013 the Defendant had denied the Claimants access to their bank account, but the Claimants issued cheques on February 28, 2013. The Claimants’ counsel wrote Exhibit C2A and C2B on February 28, 2013 asking that the Claimants be allowed to have access to their account and without waiting for any response from the Defendant the Claimant on the same February 28, 2013 issued a cheque. Other Cheques were subsequently issued.

Following a dispute over the operation of the 1st Respondent’s current account with the Appellant, the Respondents took out a writ of summons against the Appellant praying for orders declaring the actions of the bank denying the Respondents access to their account wrong and for normal banking operations to be allowed on the account. They also asked for damages.

The Appellant as Defendant joined issues with the Respondents and counter-claimed.

At trial, the sole witness for the Respondents as Claimants was the managing director of the 1st Respondent while a lone witness, a staff of the Appellant in the fraud and investigation unit in its internal audit department, testified for the Appellant.

In a considered judgment subsequently delivered, the Court found in favour of the Respondents and granted their reliefs in a modified form while the counter-claim was dismissed.

Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal.

HELD

Appeal allowed

ISSUES

1. Whether the judgment of the lower Court delivered on the 28th of February, 2019 is not liable to be set aside in view of the fact that the learned trial Judge wrongfully excluded the original of the letter dated 16th January, 2013 (marked exhibit R1/R2) on the grounds that it is inadmissible after a photocopy of the document had earlier been rejected in evidence?
2. Whether in view of the letter of the Economic and Financial Crimes Commission (EFCC) dated 8th June 2018, the findings of the lower Court could still be said to be valid and subsisting as to not occasion a substantial miscarriage of justice to the Appellant?
3. Whether in view of the specific finding of the trial Judge that the Respondent was aware that the cheques issued would not be honored, it was open to the same Court to turn around to rule that the Respondents were defamed by the acts of the Appellant?

RATIONES DECIDENDI

EVIDENCE – CONDUCT OF COURTS TO DOCUMENTS REJECTED FOR IMPROPER FOUNDATION

It is apparent from the pleadings that the document involved was pleaded and was very relevant to the resolution of the dispute between the parties. The learned trial Judge rejected the secondary evidence of the said letter on the grounds that proper foundation was not laid justifying the failure to tender the original. This position was well taken and accords with the extant position of the law, to hold otherwise would go against the best evidence rule. See ODUA VS FRN (2002) LPELR-7166(CA), EGOM & ORS VS ENO & ANOR (2007) LPELR-3958(CA), ALAO VS. AKANO (2005) 4 SCNJ 65 @ 74, ABIDOYE & ANOR VS. DOSUNMU & ANOR (2019) LPELR-47719 (CA) and KUBOR & ANOR VS. DICKSON & ORS (2012) LPELR-9817 (SC).

With due respect to the learned trial Judge, however, the subsequent attempt to tender the original of the said document should not have suffered the same fate as the earlier attempt to tender the copy without evidential foundation. The earlier attempt failed because secondary evidence of what was rightly adjudged a private document was inadmissible without proper foundation. Shutting the original of the same document out amounts to crass deference to needless technicalities. It is unjust and unfair to the party involved. The position of the law is firm that a document earlier rejected on grounds of improper foundation may be subsequently admitted in the same proceedings once the necessary evidential requirements were met. See DIVERSE ASSETS MANAGEMENT LTD & ORS VS WEMA BANK PLC (2023) LPELR-60330 (SC) at 12 where OGUNWUMIJU, JSC propounded the position of the law thus:

Documents marked “rejected” cannot be re-tendered. See ACB v. GWAGWA (1994) 5 NWLR Pt. 342, pg. 25.

However, where a document is rejected for lack of proper foundation and not for inherent inadmissibility, it can be retendered as exhibit. See EDOHO v. A.G AKWA IBOM STATE (1996) 1 NWLR Pt. 425, pg. 488 at 498.

In the circumstance, the Court below was right to hold that the trial Court ought not to have “rejected” and “marked rejected” the admissible Statement of Account because proper foundation was not laid. The document could later be admitted in evidence after proper foundation had been laid by the Respondent for its admissibility. – Per J. O. K. Oyewole, JCA

REPUTATION – WHEN A PERSON’S REPUTATION CAN BE SAID TO BE LOWERED

The award of damages cannot be sustained in view of the clear facts that the Respondents were well aware of the restriction on the 1st Respondent’s account which had not been lifted. The Respondents were not expecting the cheques issued to be honoured and cannot in good conscience claim any injury to their reputation. See AROGUNDADE V. SKYE BANK (2020) LPELR-52304 (CA) at 66-67 where NIKI TOBI (JCA) as he then was, stated thus:

The reputation of a person is lowered when there is a reputation in the first place. A person is said to have reputation when he has character and deals fairly with people. This is where, in my view, the fact that the Appellant knew before issuing Exhibit C that his account had been placed on restriction by the bank becomes relevant. The Appellant had known since 19/7/10 that his account had been placed on restriction that is evidenced by Exhibit G when he brought a motion for the unfreezing of his account, the Court refused same. He knew his account had been restricted since 2010 and he knew the restriction had not been removed, he decided to issue Exhibit C knowing that it would not be honoured since his account was restricted. The Appellant did not bring an action to claim that his account was unlawfully restricted but rather for the refusal to honour Exhibits C, D, E and F. While I have held that the refusal to honour Exhibits C, D, E and F was not justified I, however, cannot hold that the inscription DAR is defamatory as the meaning of DAR is not defamatory in all intent and purpose. This is a Court of justice, the Appellant long ago knew that his account had been restricted and that effort to have it unrestricted failed but yet went on to give someone a cheque on that account. What is the justice on this in an action for defamation. – Per J. O. K. Oyewole, JCA

CASES CITED

STATUTES REFERRED TO

1. Economic and Financial Crimes Commission Act
2. Evidence Act, 2011
   

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