(Delivered By CHINWE EUGENIA IYIZOBA, JCA)
This is an appeal against the Judgment of O.A. Dabiri J. of the High Court of Lagos State, sitting at Ikeja judicial division delivered on the 2nd day of December, 2013 granting some of the reliefs claimed by the Respondent. The Respondent as Claimant at the lower court by a writ of summons dated the 7th day of November, 2009 and filed on the 8th day of
December, 2009 claimed against the Appellant as Defendant the following reliefs:
I. An Order of this honorable Court directing the defendant to re-credit the claimant's account NO 0332080297559001, with the sum of US $51,700.00 being the sum of money the claimant lodged into the said Account between 23rd day and 30th day of September, 2009, which said money was reversed, withdrawn and debited from the claimant account without his consent by the defendant.
II. An Order of this honorable court directing the defendant to pay interest at the rate of 9% on the money.
III. (a) The sum of US$500,000.00 or its equivalent as damages for breach of trust, contract and breach of duty of care.
(b) The sum of US$500,000.00 or its equivalent as exemplary damages and ancillary relief.
(c) The sum of US$500,000.00 or its equivalent for defaming, tainting and painting the claimant as a common criminal.
The Respondent in his statement of claim averred that he is an international business man who resides partly in Canada and U.S.A; that he is a customer of the Appellant Bank and operates a current account with the Appellant's branch at Sango Otta, in Ogun State. The Respondent claimed he saves his money in foreign currency particularly in U.S dollar with the Appellant bank. He claimed to have lodged a total of U.S$51,700.00 between the 23rd day of September, 2013 and 30th September of the same month at the Ogba Ijaiye, Lagos branch of the appellant and that at every point of deposit one Mr. Kenneth bike, a staff of the Appellant bank duly verified and authenticated the currency before issuing him with the tellers. The Respondent claimed that few days after the lodgement, the Respondent was informed by the Bank that after verification at the- head office of the Appellant bank it was discovered that the U.S. Dollars were fake and that the appellant should come to retrieve them, thereafter the Bank reversed the credit. The Respondent refuted the Banks claim and wrote several letters demanding that his account be credited back with the said sum. When the Appellant bank refused to re-credit the account of the Respondent, he instituted this suit at the lower court.
The story told by the Appellant differs. The Appellant claimed the dollars were paid in with six different tellers on the same day; that the Respondent was informed that there was no equipment for verifying the authenticity of the currency in the branch. The Appellant claimed it was then agreed that the dollars should be paid into the Respondent's account subject to its verification at their head office; that photocopies of the dollars were made; that the dollars were sent for verification that same day and it was discovered to be counterfeit; that the next day, they reversed the credit entry and called the Respondent to come and retrieve the fake dollars but he refused to do so and instead instituted this suit..
Pleadings were filed and exchanged. At the conclusion of trial, the trial Court delivered judgment ordering the Appellant/Defendant to re-credit the Respondent/Claimants account with the sum of U.S$51,700 being the sum lodged into the account. The court further awarded the Respondent/Claimant N1 million damages and N200, 000.00 costs.
The Appellant/Defendant being dissatisfied with the Judgment appealed against it by a Notice of Appeal dated 3rd day of December, 2013 with five grounds of appeal. The Respondent also dissatisfied with certain parts of the judgment filed a Notice of cross-appeal which was subsequently amended by the order of court. It also has five grounds of appeal.
The parties filed and exchanged briefs of argument. The Appellant's brief of argument was settled By Oluyomi E. Olawore Esq. and from the five grounds of appeal; he distilled two Issues for determination as follows;
1. Whether the Respondent proved that he paid genuine US dollar currency into his account with the Appellant? Distilled from Grounds 1, 2 and 5 of the Notice of Appeal.
2. Whether or not the lower court was correct in awarding the Respondent, general damages? Distilled from Ground 4 of the Notice of Appeal.
The Respondent/Cross Appellant's brief was settled by Israel OkpakoEsq. For the main appeal he formulated three issues for determination as follows:
1. Whether the evidence/exhibits proffered by the Respondent/ Cross-Appellant before the lower court did not establish the facts that he paid genuine U.S. $Dollar currency into his account; and the appellant acknowledged and received same.
2. Whether the learned trial judge was in error in holding among others that "failure of the Appellant to produce the real fake dollars in its possession" is very fatal to Appellant's case.
3. Whether or not the learned trial judge was in error in awarding in favour of the Respondent/Cross-Appellant general damages?
For the Cross-Appeal, the Respondent/Cross-Appellant out of the five grounds in his Amended Notice of Cross Appeal formulated four issues as follows:
1. Whether the learned trial judge was not in error for his failure to consider and make pronouncement as to payment of pre and post judgment interest on the judgment sum? Whether or not the Appellant is obligated to pay pre and post judgment interest on the judgment sum. Distilled from grounds 1 & 2 of Notice of Cross-Appeal.
2. Whether the learned trial judge was not in error in his failure to award exemplary/ancillary damages against the appellant as prayed by the respondent/cross-appellant in the statement of claim. Distilled from ground 3 of Notice of Cross-Appeal.
3. Whether or not the learned trial judge was not in error in evaluating and giving probative value to Exhibits AL 34. Distilled from ground 4 of Notice of Appeal.
4. Whether the learned trial judge was not in error in holding at page 13 of his judgment that damages is not awarded for breach of trust, contractual relation and breach of duty of care. Distilled from ground 5 of Notice of Cross-Appeal.
The Cross Respondent in his brief formulated the following issues for determination:
1. Whether the Cross-Appellant pleaded and sufficiently proved facts in relation to pre and post judgment interest claims before the lower court. Distilled from Grounds 1 and 2 of the Notice of Cross Appeal.
2. Whether the Cross-Appellant pleaded and proved his entitlement to general damages and exemplary/ancillary damages against the Cross-Respondent. Distilled from Grounds 3 and 5 of the Notice of Cross Appeal.
3. Whether or not the lower court was correct in evaluating and giving probative value to Exhibit AL 34. Distilled from Ground 4 of the Notice of Cross Appeal.
The Appellant also filed a Reply brief on the 30th April, 2014.
I have looked through the issues formulated by the parties. The Appellant's issues one and two are the same as the Respondent's issues one and three. The Respondent's issue two was argued together with his issue 1. For that reason I shall adopt the Appellant's two issues in the determination of this appeal.
Whether the Respondent proved that he paid genuine US dollar currency into his account with the Appellant? Distilled from Grounds 1, 2 and 5 of the Notice of Appeal.
Learned counsel for the Appellant on issue one submitted that the learned trial Judge was in error in holding that the tellers which the Respondent tendered were sufficient evidence of the deposit of genuine U.S Dollar currency notes into his account. Counsel contended that the tellers provide unequivocally that acceptance of the deposit was subject to verification; that the tellers tendered by the Respondent were not issued by the Appellant and that the evidence before the court established without doubt that the source of the U.S Dollar currency deposited was not authorized and therefore incapable of being a source of genuine currency. Counsel submitted that in addition to all the above, the currency machine of the Appellant at its head office found the currency not to be genuine. Counsel further made reference to material contradictions in Exhibit AL21 (Letter written by the respondent to the Appellant Bank), letters written to the Appellant bank by Respondent's counsel and Exhibits AL2- AL10 (tellers tendered by the Respondent) and submitted that the contradictions establish beyond doubt that the deposits were made in six different transactions on the same day as opposed to the claim of the Respondent that the transactions were done on six different days. He submitted that the evidence elicited from the Respondent during cross-examination shows that the currency did not come from an authorized source. He posited that the contradictions in the pleadings and evidence led by the Respondent and the statements in the various correspondences between the Respondent and his counsel on the one side and the Appellant bank on the other side constitute admissions which ought to be taken against the Respondent. He cited the cases of NAS LTD V UBA PLC 2005 14 NWLR PT 945. 421 @ 431-435 and SIESMOGRAPH SERVICES NIG LTD V CHIEF KEKE OGBENEKWEKE EYUAFE 1976 VP. 10 NSCC 434 @439.
Learned counsel for the Appellant further submitted that it was a term of the contract between the parties that the acceptance of the currency was subject to verification and that the dollars having failed the verification test, the Appellant was entitled to reject the currency and as such the onus of proving that the currency deposited was indeed genuine is on the Respondent and not on the Appellant as held by the trial judge. Counsel posited relying on C.O.E.EKIDIALOR V OSAYANDE 2010 6 NWLR PT. 1191 423&450 that the tellers serve as the contract terms of the parties and having contained the term entitling the Appellant to reject the currency upon verification, the parties were bound by the contract terms.
He cited Section 5 of the counterfeit Currency (special provisions) Act, Cap C35, Laws of the Federation of Nigeria, 2004 to the effect that it is an offence to accept counterfeit currency and submitted that by rejecting the US Dollar currency notes being counterfeit, it acted in accordance with the law.
Counsel further submitted that the lower court was in error by raising the standard of proof from balance of probability to beyond reasonable doubt, as by rejecting the currency as not genuine, the Appellant did not thereby raise any allegation of crime; that neither the pleading nor the evidence adduced at the trial raised any imputation of crime and that just as parties are bound by their pleadings, the court itself is bound by the pleadings filed before it and cannot go outside it. He cited the case of ADEMESO V OKORO 2005 14 NWLR PT 945 308 @ 319.
Counsel vigorously contended that at the trial court, the Appellant was able to establish beyond doubt that the source of the US$ Dollar currency was shrouded in secrecy as the Respondent made contradictory statements under cross examination and in his letter (Exhibit AL21) about the source of the currency. On failure of the Appellant to produce the real fake dollars in its possession, learned counsel submitted that copies of the dollars were made and given to the Respondent and that the copies tendered in evidence were not objected to by the Respondent and neither were they shown not to be the copies of the ones given to the Respondent. Counsel argued that exhibit AL21 at page 70 of the record, established, contrary to the contention of the Respondent that copies of the currency were indeed made. Counsel submitted that there can be no better proof than the admission against interest of the party who alleges the contrary. Counsel further submitted that in determining whether currency was genuine, it is the prerogative of the bank not to accept a deposit, based
on its use of special machines which upon verification revealed that the currency deposited were not genuine. He urged us to hold that the findings of the lower court were at variance with and unsupported by the evidence established before the court, and to resolve this issue in favour of the Appellant and against the Respondent
Learned counsel for the Respondent on his issues 1 and 2 submitted that the learned trial judge did not in any way err in holding that that the tellers which the Respondent tendered were sufficient evidence of the deposit of genuine U.S Dollar currency notes. He contended that the argument of the Appellant about receiving the currency subject to verification was an afterthought as Exhibit AL23 indicated that the appellant's representative in his statement of defence averred that the appellant received the deposits on the assumption that it was genuine. He cited the case of U.B.A PLC V AKPARABON COMM.BANK (NIG) LTD (2005)35 W. R. N(P. 145) to the effect that assumption is not a fact and it is misleading to rely on assumption as basis for a legal submission. Learned counsel submitted that there is no evidence on record to show that the Appellant received the deposit subject to verification as the terms contained in the Tellers only apply to cheques pending clearing. Relying on the case of ACP V NDOMA EGBA, 10 NWLR (2000) (PT 675) 229 CA Counsel submitted that the documents from which contract between the parties can be inferred are the statement of account and the tellers and that these create statutory contractual duty between the Banker and the customer.
Counsel referred to Section 167 (c) of the Evidence Act, 2011 which provides that the court is entitled to presume the existence of any fact which is likely to have happened taking into consideration the common course of natural events and submitted that the tellers and statement of account are sufficient evidence to invoke the presumption of the genuineness of the currency.
He submitted that since it was the Appellant that claimed that the currency were not genuine, the onus is on it to prove that the currency were not genuine. Counsel submitted relying on BUHARI V OBASANJO (2005)Vol.50,WRN (P.94) and the provisions of section 131(1), 136 and 167(d) of the Evidence Act, 2011 that in civil matters, it is the party that
asserts the existence of a particular fact that should adduce evidence to prove the fact.
Counsel submitted that the staff of the Appellant Bank duly authenticated the currency notes before processing the tellers. He further submitted that the staff never accepted it subject to verification; and that for the Appellant to claim after authentication and receiving the dollars that the currency were counterfeit upon verification at the Appellant's head office was a deliberate act to swindle the respondent. Counsel on their issue 2 submitted that the obligation imposed by law on the Appellant is not to accept currency notes that are not genuine, and that the appellant staff checked and verified the currency notes before processing the tellers and crediting the Respondent's account and by so doing a debtor/creditor relationship was created. Counsel further submitted that the trial court was right in its decision that the failure of the appellant to tender in evidence the purported fake dollars still in its possession was fatal to its case. He urged us to resolve issues land 2 in favour of the Respondent and to dismiss the appeal.
RESOLUTION OF APPELLANTS ISSUE 1 AND RESPONDENT'S ISSUE 2
After a careful appraisal of the submissions of counsel on these issues, I am of the view that a good starting point is the issue of burden of proof. Section 137 of the Evidence Act, 2011 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, regard being had to any presumptions that may arise on the pleadings. By 137 (2) if such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with. Burden of proof in civil cases has two distinct meanings, viz (a) Burden of proof as a matter of law and pleadings usually referred to as Legal burden or the burden of establishing a case; (b) Burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always stable and static, the evidential burden of proof shifts from one side to the other as the case progresses according as one scale of evidence or the other preponderates. In civil cases while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendants and vice versa as the case progresses. SEE FEDERAL MORTGAGE FINANCE LTD V EKPO (2004) 2 NWLR (PT 856) 100 AT 130 PER OLAGUNJU JCA; BALOGUN V LABIRAN (1988) 3 NWLR (PT 80) 66; NNAEMEKA OKOYE A ORS V OGUGUA NWANKWO (2014) LPELR-23172 (SC). Generally, the burden of establishing facts upon which legal rights and liability depend, in accordance with sections 135 and 136 of the Evidence Act, Cap 112,LFN 1990 (now contained in CAP E14, LFN 2004, Sections 131-132), is on the person who asserts the fact(s). Section 131(1) of the Act provides that whoever desires any court to give Judgment as to any legal right which liability is dependent on the existence of facts which he asserts must prove that those facts exist. Section 132 of the same Act provides further that the burden of proof in a suit or in a proceeding lies on that person who will fail if no evidence at all were given on either side. While describing the phrase BURDEN OF PROOF" Dennis I.H; in his book "The Law of Evidence, '(2nd Ed; Sweet & Maxwell, London at p.369) stated inter alia: 'The Term burden of proof, also known as onus of proof refers to the legal obligation on a party to satisfy the fact finders, to a specified standard of proof, that certain facts are true. The facts for this purpose are the facts in issue, the facts on which the legal rights and liabilities of the parties to the case depend .. There may be several facts
in issue in a given case and the burden of proof of different issues may be differently allocated amongst the parties." NNAEMEKA OKOYE & ORS V OGUGUA NWANKWO (2014) LPELR -23172. SC
In the instant appeal, the legal burden of establishing the case in the first Instance lies on the Respondent/Claimant who claimed to have lodged the sum of genuine U.S$51,700 into his account with the Appellant/Defendant Bank and which said sum was reversed on the allegation that the currency lodged were not genuine. The Respondent/Claimant had averred in paragraph 8 of his statement of claim that the money he lodged into his account were genuine US$ dollar currency. The burden consequently rests squarely on the Respondent to prove not only that he paid in the said $51, 700 into his account but also that they were genuine dollars. It is only after the Respondent has discharged this onus that the evidential burden will shift to the Appellant to prove the contrary. The Respondent pleaded and led evidence to show that the sum was actually lodged into his account over a period of six days after the operation manager of the Appellant by name Mr. Dike Kenneth duly counted the money, thoroughly screened and verified the genuineness of the currency before processing the tellers." The Appellant
on the other hand pleaded and led evidence to show that the money was paid in on one single day, 23/09/09 with six different tellers and that its acceptance was made subject to verification of the authenticity of the dollars as clearly stipulated in the tellers which is the contract between the parties. The Appellant further averred and led evidence that the branch had no equipment to properly verify the authenticity of the dollars and had to send the dollars to their head office branch for verification. The Appellant averred and led evidence that photocopies of the dollars were made and the original copy given to the Respondent who was advised to come back the next day 24/09/09 for the outcome of the verification. The verification revealed that the dollars were counterfeit and the credit in the Respondent's account was consequently reversed. The parties disagreed as to whether the money was paid in over a period of six days or in one single day, 23/09/09. The Appellants disowned the tellers tendered by the Respondent and claimed they were contrived. They tendered the tellers which they claimed the Respondent used in paying in the money. How did the learned trial judge deal with this piece of evidence? In its judgment at page 503 - 504 the lower court observed:
"The Court is of the view that this allegation of the Defendant is a criminal allegation which ought to be proved beyond reasonable doubt. It is not enough to suspect a person of having committed a crime there must be evidence which identifies the accused with the offence, and it was his act which caused the offence. See AKINYEMI VS STATE (1996) 6
NWLR (PT 607) 449 CA------------------- In this instance (sic) case, the Defendant alleged that the tellers relied on by the
Claimant did not originate from it, this on its own is a criminal act which the Defendant ought to prove beyond reasonable doubt. Although the Defendant tendered tellers challenging the ones tendered by the Claimant. This in the view of the Court will not suffice as prove (sic) beyond reasonable doubt."
With all due respect, the lower court completely misconceived the issues and the summation above merely begs the question. There was no allegation of commission of a criminal offence in the pleadings and the parties are bound by their pleadings. The claim of the Defendants was simply that the story of the Respondent was not true; that the tellers tendered by the Respondent were contrived and they pointed out evidence in proof of the fact that the tellers were indeed contrived. The trial court ought to have evaluated the pieces of evidence and made a finding of fact on the evidence. Exhibit AL21 at page 70 of the Record is a personal letter written by the Respondent to the Appellant bank captioned "RE: US$ 51,700 LODGMENT INTO MY ACCOUNT" Therein, the Respondent stated in the first line that "On 23rd September 2009, 1 paid the above sum of money into my account in your bank but was reversed the second day due to some reasons I could not clearly understood (sic)." This letter was tendered by the Appellant through the Respondent under cross-examination The Respondent did not deny authorship of the letter. It is quite clear then from Exhibit AL 21 that the Respondent misrepresented the facts when he averred in his statement of claim and in his written deposition that he paid the dollars into the bank on six different days. From his letter Exhibit AL 21 the money was paid in on 23/09/09. This is further confirmed by the statement of account obtained by the Respondent from the bank. The entries therein show that the whole $51,700 was lodged into the account on 23/09/09 with six separate tellers exactly as stated by the Appellant. The statement also showed that the reversal happened the next day 24/09/09 as confirmed in the Respondent's letter Exhibit AL21. The tellers tendered by the Respondent indicated the branch as Sango Otta which is in Ogun State contrary to Exhibit AL 22 at pages 71 - 72 of the Record which is a letter from the Respondent's counsel to the Appellant confirming that the lodgment was through the Ogba Ijaye branch of the bank on the 23rd of September 2009 through six deposit slips. The letter also confirmed that the following day 24th of September 2009, the Appellant contacted the Respondent by phone informing him to come and collect his dollars as the re-verification exercise in the head office confirmed that the dollars were fake. At page 34 of the Record, there is also a letter from J.E.I. Okpako & Co (Respondent's counsel) to the Appellant bank. The letter was tendered in evidence by none other than the Respond himself and reads in part as follows:
We have been briefed and our services retained by Mr. Akingbe Sote Leye Dickson of 18, Obafemi Awolowo Way, Ikeja, Lagos who we hereby refer to as "our client" and on whose behalf and instruction we write you this letter. Our client has reliably informed us of the following facts:
1. That he has been your customer for some years and he has carried out some credible and legitimate transactions with the bank.
2. That he opened and operates current account No 0332080297559001 with your branch at Sango-Ota but he carries out most of his transactions with the nearest branch to him at the moment of need.
3. That he paid in some money into his account through your
branch at Ogba Ijaiye in the following sequence
The above is further confirmed by paragraph 7 of the Respondent's statement of claim at page 3 of the Record that the claimant lodged the money into his account through the defendant's branch at Ogba, Ijaiye, Lagos. These are all admissions by the Respondent and his lawyer contradicting in every material particular the Respondent's later statements that the dollars were paid in within a period of six days and that the bank kept the dollars for 10 days; that the payment as shown in his contrived tellers were at Sanqo Otta branch of the bank. There is also evidence in the Record of Appeal that photocopies of the dollars paid in for verification of their authenticity in the head office of the Appellant were made. The Respondent had denied that photocopies were made or that he was given copies. The relevant paragraphs of the Statement of Defence are at page 65 of the Record:
7. The Defendant avers that its officials informed the Claimant that it did not have currency verification equipment at the branch and would have to take the currency to its headquarters to verify the genuineness of the currency.
8. The Defendant further avers that the Claimant agreed to deposit the said sum of $51, 700 with it subject to verification provided that if any part or all of the currency is not authenticated as genuine the same will be rejected and returned to the Claimant. Tellers of the same date, 23/9/09 initialled by its most senior official in the area were issued to Claimant.
9. The Defendant avers that it was on the basis of this understanding that copies of the currency notes were made and given to the Claimant with a request that Claimant should come to the bank the following day, 24/9/2009 to know the outcome of the verification exercise."
The above paragraphs were traversed in the Respondent/Claimant's Reply beginning at page 108 of the Record as follows:
4. The claimant denies paragraph 7 of the defendant's statement of
defence. And hereby says that no official of the defendant informed him that there was no currency verification equipment at the branch at the time he made the payments.
5. The claimant denies paragraph 8 of the statement of defence and hereby says that he has not agreed or entered any agreement with the defendant to deposit the said money subject to
verification. The tellers dated 23/09/2009 initiated by his most senior officer as claimed by the defendant are falsified. That the original tellers filled by him (the claimant) bear Sango-Otta as the branch as opposed to the forged ones by the defendant that bear Ogba as branch.
6. The claimant denies paragraph 9 of the statement of defence, as there was no basis of understanding between him and the defendant. And no copies of the currency note were given to him. The defendant is put to the strictest proof thereof.
The above denials by the Respondent/Claimant were completely contradicted by the Respondent's personal letter to the bank Exhibit AL21 and his solicitor's letters to the bank. The Exhibits are at pages 70 and 71 of the Record. Extract from Exhibit AL 21 read as follows:
"While I have no reason to doubt your integrities but I find it very difficult to agree with your complain and believe that the same notes I deposited you likely want to return back to me for the following reasons.
1) Your overnight custody of the money in your till may be too long for you to come up with such complains.
2) Even though you made photocopy of the money, but
you refused to let me sign against it or have a copy for myself in other to keep track of the serial numbers.
3) And any test on the money should be in my presence and to my knowledge any time any day."
Extracts from Respondent's Solicitor's letter to the bank Exhibit AL 22:
"Our client reliably informed us and we verily believed him that he made a total lodgement of the said sum through your Ogba Ijaye branch on the 23rd September 2009 through six deposit slips. We further learnt from our client that the money was duly counted screened and verified to be complete and genuine by your cashier upon which six deposit slips were duly stamped acknowledging receipt of same and given to our client.
It was to our client's chagrin that he was contacted on phone by your officials on the following day the 24th September 2009 that your head office re-verified the money and found it to be fake dollars, upon which he was requested to come and collect same."
From the above extracts, four vital facts emerge. Firstly, the dollars were paid in on 23/9/09 with six deposit slips and the slips bear "Ogba" as shown in the deposit slips tendered as the correct deposit slips by the Appellant as against the contrived tellers by the Respondent which bore "Sango Otta". Sango Otta is in Ogun State. Secondly, the Respondent was contacted the following day 24/9/09 and informed that the dollars were fake contrary to the later statement of the Respondent that he was contacted on 2/10/09. (Page 315 of the Record: cross-examination of the Respondent testifying as CW1). Thirdly, the Respondent in Exhibit AL21 admitted that the dollars were photocopied but were not signed or given to him.; fourthly, the evidence is overwhelming that the tellers tendered by the Respondent were contrived while the tellers tendered by the Appellant are the genuine ones with which payment was made into the account of the Respondent. The tellers tendered by the Respondent all showed the branch to be Sango Otta which is in Ogun State and could not have been used to make deposits in Lagos. The deposit slips tendered by the Appellant and also the statement of account which the Respondent did not dispute and on which he actually placed reliance show that the six deposit slips were all credited to the account of the Respondent on 23/09/09 in the Appellant's Ogba branch and that the reversal was made on 24/09/09. These documents constitute the contract between the parties. They are bound by it. The Respondent contended that the endorsement on the tellers relate only to lodgements of cheques pending clearing and does not give the Appellant any right for further verification of cash paid into an account evidenced by a stamped and initialled teller. A careful scrutiny of the endorsement will reveal that there is a paragraph between the endorsement relating to un-cleared cheques and the endorsement relating to deposits being subject to final verification. This is how the endorsement appears:
"Customers are informed that the bank reserves the right at its discretion to postpone payment of cheques drawn against nucleated effects which may have been credited to the account.
The deposit is subject to final verification"
The Respondent's contention is that there was no evidence before the lower court that the dollars
deposited were subject to verification. Let us however assume that the endorsement on the tellers gave the bank right of further verification and constitute the contract between the parties which as admitted even by the Respondent is binding on them and that the court cannot vary the contract between the parties.
The question that agitates my mind is why would the Respondent go to such length as to lie about the dates he paid in the tellers into his account and why would he go out of his way to contrive tellers to back up his lies that the dollars were paid in within a period of six days? It seems to me that the reason may be to strengthen his yet another lie that the dollars were in the possession of the Appellants for several days until 2/10/09 when he allegedly claimed the Appellant called him to retrieve the alleged fake dollars. These unfortunate blatant lies may be out of misplaced zeal by the Respondent to build what he considered a watertight case for the refund of the dollars. The learned trial judge ought not to have swept the lies under the carpet. The attitude of the Court may have been that those facts are immaterial as it was common ground between the parties that the dollars were actually paid into the account of the Appellant bank. But the evidence adduced should have been subjected to proper scrutiny by the court and properly evaluated. The accepted norm is that justice must not only be done but must be seen to have been done. By not commenting on these vital issues properly raised and traversed in the pleadings and in respect of which evidence was led, it left the Appellants with the view and rightly in my view that there has been a miscarriage of justice. Indeed the appellant discharged the burden of proof that the Respondent's tellers were contrived, even applying the criminal standard of proof, contrary to the holding of the trial judge. The error of the trial judge arose because of its failure to first consider and evaluate the evidence led.
What then is the effect on the appeal of these obvious and blatant lies told by the Respondent?
These lies while they expose the Respondent as an unreliable witness whose evidence and indeed entire case should be viewed with caution, they do not in my humble view detract from the undisputed fact that the sum of $51,700 was paid into the Respondent's account and that tellers (the correct ones tendered in evidence by the Appellant) were duly stamped and initialled by the bank. This created a rebuttable presumption that genuine dollars were paid into the account. If there was certainty that the dollars were not genuine, the Respondent would not have been issued tellers duly stamped and initialled by the bank and his account duly credited. Indeed the Appellant by alternatively pleading and averring in their witness deposition that the dollars were credited to the account of the Respondent on the assumption that they were genuine helped in making out the case of the Respondent. In HADYER TRADING MANUFACTURING LIMITED & ANOR V. TROPICAL COMMERCIAL BANK (2013) LPELR-20294(CA) this court per Abiru JCA observed:
"A teller duly stamped with the Bank's stamp and initialled constitutes prima facie proof of payment and a customer after producing such receipt need not go further to show what the Bank did with the payment so made. The onus thereafter shifts to the Bank - see Aeroflot Soviet Airlines Vs United Bank for Africa Ltd (1986) 3 NWLR (Pt. 27) 188 where Eso JSC stated: In the normal banking practice, stamping and initialling such entry in the teller constitute an acknowledgment by the Bank of the receipt of the sum from the customer."
There is thus a rebuttable presumption that the currencies lodged into the Respondent's account were genuine and the onus of rebutting the presumption squarely fell on the Appellant. To this extent, I would say that the Respondent (with the help of the Appellant) had discharged the initial burden of proof that he paid in genuine dollars into his account. It is then for the Appellant who claimed that after further verification in their head office, the dollars turned out to be counterfeit to prove their assertion. Was the Appellant able to discharge this burden? This brings into play Respondent's issue 2, whether the learned trial judge was in error in holding among others that "failure of the Appellant to produce the real fake dollars in its possession was fatal to the Appellant's case. What I find quite perplexing in this case is the shoddy manner the Appellant went about its attempt to prove that the dollars paid in by the Respondent were subsequently found to be counterfeit. To begin with, if indeed they did not have the equipment to test the dollars in their Ogba Ijaiye branch where the Respondent paid in the currency, they should have declined receipt of the dollars and told the Respondent to go to a branch that has the relevant equipment for the simple reason that issuance of a teller duly stamped and initialled by the bank is prima facie evidence of receipt of genuine dollars by the bank. Contrary to known and tested banking regulation, they accepted the money, issued duly stamped and initialled tellers, credited the account of the Respondent. To now turn round and allege that they did so on the understanding that the currency will be verified in their head office the next day is to say the least suicidal to the interest of the bank. Then to make a bad situation worse, they claimed to have made photocopies of the dollars. The copies are at pages 336 - 378 of the Records. The Respondent did not sign any of the copies to authenticate that those were exactly the dollars he paid into his account. All that was on the copies were the stamp of the Appellant bank indicating the date of receipt as 23/09/09, a totally meaningless exercise as the stamp could have been placed there by the Appellant at any point in time. It does not in any way confirm that those were the exact dollars paid into the account of the Respondent. How does one explain this grave error? The claim by the Appellant that copies were given to the Respondent is of no use especially in the face of denial by the Respondent that any copy was given to him. The only valid means of authentication would have been the signature of the Respondent on the copies. To add to the now desperate situation, the alleged photocopies of the fake currency were not front loaded at the time of filing the statement of defence, witness depositions and other exhibits. They were not tendered by DW1 but were tendered long after the Respondent had closed his case by DW2 after a lengthy battle by motion on notice as regards their admissibility in evidence. They were admitted by learned trial judge despite objection by the Respondent. It is consequently not correct for the Appellant to allege that the photocopies were admitted without objection by the Respondent. The reason given by the Appellant for failure to front load and tender the document timeously was the lame excuse that DW1 forgot to give the photocopies to their lawyer. Even though DW1 and DW2 admitted that the alleged counterfeit dollars were in the possession of the Appellant, the dollars were not tendered in evidence. The Respondent had insisted that the dollars were tested and confirmed to be genuine by the operations manager of the Appellant, one Mr. Kenneth Dike. DW1 under cross-examination at page 323 of the Record confirmed that Kenneth Dike processed the tellers before the dollars were paid into the Respondent's account and testified that Mr. Dike was also the person that took the dollars to their head office where he and one Martha Kualu did the verification. Yet neither Kenneth Dike nor Martha was called to give evidence. The manner of handling the issues by the Appellant Bank in this entire transaction leaves much to be desired. Imagine a situation where a customer of a bank collected cash of N100. 000.00 from a bank and returns the next day to say that what he was given was N50, 000.00 and not N100, 000.00. The bank will of course not pay any attention to him because he ought to have counted the money there and then in the bank to confirm the amount he was given. The scenario here is not different. The Appellant collected the dollars from the Respondent, duly stamped and initialled the tellers and credited the account of the Respondent only to turn round the next day to allege that the dollars re-verified in the absence of the Respondent were fake and without any proper evidence that the dollars re-verified were exactly those paid in by the Respondent. The English, with this kind of scenario, would say tell that to the marines! The many damning lies told by the Respondent leave a sour taste in the mouth and raise doubt as to his honesty but the bank played into his hands and just has to bear the consequence of its negligence or possible collusion between the Respondent and some of the bank staff. The Appellant clearly failed to adduce evidence to satisfy the court that the dollars paid into the account of the Respondent were the same dollars that were found to be counterfeit. The learned trial judge was right that their failure to tender the dollars declared to be counterfeit is fatal to their case. The Appellant surely cannot hide under the guise that the Respondent failed to prove the source of the dollars. That is again attempting to shift the burden to the Respondent who had already discharged the burden on him by proving payment and receipt of the dollars by the bank. All the effort in that direction was a complete waste of time. The Appellant failed to discharge the evidential burden on it to prove that the subsequent re-verification by their head office confirmed that the dollars paid into his account by the Respondent were indeed counterfeit. Although the learned trial judge in the end came to the right conclusion but his reasoning fell short of expectation. Issues 1 & 2 are resolved against the Appellant and in favour of the Respondent.
Whether or not the learned trial judge was in error in awarding in favour of the Respondent/Cross-Appellant general damages?
Learned counsel for the Appellant submitted that the award of general damages by the lower court is improper because where a claim for special damages has not been proved, the court shall not compensate the party with general damages. Counsel cited the case of UNION BANK OF NIG. LTD V ODUSOTE BOOKSTORES LTD (1995) 9 NWLR PT 421 @ 496.
Counsel further submitted that there was no claim for general damages by the Respondent and no fact or evidence was pleaded or led to show any loss, pain or inconvenience suffered by the Respondent to justify the award for general damages. He posited that the learned trial Judge's award of general damages is unsupported by the facts and the law. He urged us to overturn the decision.
The Respondent counsel on the other hand submitted that general damages are by law presumed and flow from the type of wrong complained about by the victim and that they need not be pleaded. He cited the cases of DIAMOND BANK LTD V PARTNERSHIP INV.CO.LTD (2010) 13 WRN (P.61) Lines 15-25. And IBOK V SPRING BANK PLC (2012) 35.WRN (Pp 177-178) lines 5-5 and submitted that the lower court was right in awarding general damages in favour of the Respondent.
RESOLUTION OF ISSUE 3:
From the writ of summons and the statement of claim of the Respondent/ Claimant, it cannot be discerned that a claim for general damages was made. General damages are such as the law will presume to be the direct natural or probable consequence of the act complained of while special damages on the other hand are such damages as the law will not infer from the nature of the act complained of. The court can make an award of general damages even when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man. JOSEPH V ABUBAKAR (2002) 5 NWLR (PT 759) 185. In YAU V DIMKA (2001) FWLR (PT 62) 1987 AT 2005 it was held that general damages are such damages that can be given when a Judge cannot pin point any measure by which they can be assessed, except the opinion and judgment of a reasonable man. In UNION BANK OF NIGERIA PLC V IKECHUKWU ONUORAH & ORS (2007) LPELR -11845 (CA) it was held that as lofty as the award of general damages can be to an awardee, it is the quantum or assessment or even the decision to grant same that the court can as a matter of law exercise its discretion over. The court cannot on its own award general damages where it does not have a root in the claimant's writ of summons or statement of claim.
Although the quantum of general damages need not be specifically pleaded or proved but it must be claimed before the court can proceed to determine, the quantum of what in its opinion can be awarded. PATRICK OGBONNA V CHRISTIAN OGBONNA (2014) LPELR -22308 CA.
It is a core principle of law and it is well settled that a court is not a charitable institution that would grant reliefs that are not claimed by a party. It must restrict and confine itself within the wall of the relief a party approaches it for, and not to undertake its own generous acts of awarding reliefs not sought. ODUNZE & ORS V NWOSU & ORS (2007) 13 NWLR (PT 1050) 1.
In OSUJI V EKEOCHA (2009) 16 NWLR (PT 1166) 81 @142 the court held that "...a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them. The question of granting a relief not specifically claimed is not an issue which depends on the discretionary powers of the trial Court".
By awarding the sum of Nl Million Naira as general damages which was not claimed for in either the writ of summons or the statement of claim, the court had gone outside its jurisdiction and such award must be set aside. I therefore set aside the award of general damages by the trial court. Issue 3 is thus resolved in favour of the Appellant.
Having resolved issue 3 in favour of the Appellant, I hold that the appeal succeeds in part. The award of Nl, 000,000.00 general damages is hereby set aside. Subject to that, the judgment of the lower court delivered on the 2nd day of December 2013 is affirmed. I make no order as to costs.
The Respondent/Cross Appellant filed an amended notice of Cross Appeal on the 18th of May, 2015, being not wholly satisfied with the decision of the Judgment of O.A.Dabiri J of High Court of Lagos State, Ikeja Division delivered on the 2nd day of December, 2013.
From the five grounds of appeal in the Cross Appellant's Amended Notice of appeal, learned counsel for the Cross Appellant formulated four issues for determination namely:
1. Whether the learned trial Judge was not in error in his failure to consider and make pronouncement as to payment of pre and post Judgment interest on the Judgment sum? Whether or not the appellant is obliged to pay interest on the pre and post Judgment sum? (Distilled from grounds 1 & 2 of Amended Notice of cross appeal).
2. Whether the learned trial Judge was not in error in his failure to award exemplary/ancillary damages against the appellant as prayed for by the Respondent in his statement of claim. (Distilled from ground 3 of the Amended Notice of cross appeal)
3. Whether or not the learned trial Judge was not in error in evaluating and giving probative value to Exhibit AL34. (Distilled from ground 4 of cross appeal)
4. Whether the learned trial Judge was not in error in law in holding at page 13 of his Judgment that damages is not awarded for breach of trust, breach of contractual relation and breach of duty of care by the Appellant. (Distilled from ground 5 of Notice of cross appeal).
The Appellant/Cross Respondent on the other hand filed his brief on the 9th June, 2015 wherein his counsel formulated three issues for determination namely;
1. Whether the Cross Appellant pleaded and sufficiently proved facts in relation to pre and post Judgment interest claims before the lower court. (Distilled from grounds 1 & 2 of the Notice of cross appeal)
2. Whether the Cross Appellant pleaded and proved his entitlement to exemplary/ancillary damages against the Cross Respondent? (Distilled from grounds 3 & 5 of the Notice of Cross Appeal)
3. Whether or not the lower court was correct in evaluating Exhibit AL34? (Distilled from grounds 4 of the notice of cross appeal).
The facts relating to the Cross Appeal are that the Respondent/Cross Appellant was not wholly satisfied with the Judgment of the lower court in that the court failed to make any pronouncement or grant the Respondent/Cross Appellant's claim for pre/post Judgment interest; order for the sum of U.S. $500,000.00 or its equivalent as damages for breach of trust, contractual relation & breach of duty of care and the sum of U.S. $500,000.00 or its equivalent as exemplary damages and ancillary relief.
I have carefully considered the issues as formulated by both the Cross Appellant and Cross Respondent in their respective briefs, the issues for determination as formulated by the Cross Respondent cover all the issues raised in this Cross Appeal as the Cross Appellant's issue 4 can be subsumed into the Cross Respondent's issue 2.1 shall therefore adopt the Cross Respondent's three issues in the determination of this Cross Appeal.
Whether the Cross Appellant pleaded and sufficiently proved facts in relation to pre and post Judgment interest claims before the lower court.(Distilled from grounds 1 & 2 of the Notice of cross appeal).
CROSS APPELLANT'S ARGUMENTS:
Learned Counsel for the Cross Appellant in his brief submitted that a Judgment of a Court must demonstrate in full a dispassionate consideration of all Issues properly raised and heard and must reflect on the result of such exercise, Counsel cited the case of NWARATA V EGOKA (2005) 26 WRN (P.11) lines 20-30 where Muntaka Comassie JCA (as he then was) admonished the trial court on the need to pronounce on all issues properly placed before it for determination. Counsel argued that the Cross Appellant claimed among other reliefs 9% compound interest on the pre-judgment sum and equally 10% interest on the post Judgment sum in accordance with Order 35 Rule (4) of the High Court of Lagos State Civil Procedure Rules, 2012 but that the learned trial Judge in his Judgment failed to consider and make pronouncement on this and thereby erred in law. Learned Counsel further argued that the Cross Respondent is obliged to pay interest on the pre and post Judgment sum. He referred us to Exhibit AL12 which is the statement of account of the Cross Appellant as evidence of statutory or contractual relation between the appellant and the respondent and submitted that from the perusal of the Exhibit, the account is an interest yielding account, he pointed out the rate of interest which had accrued to his account between 1-09-2009 and 30-09-2009 at the rate of 2.87%
Learned Counsel further submitted that under cross examination, the Cross Respondent admitted that the Bank normally pays interest on the money kept with her. Counsel posited that payment of Judgment interest is as of right and is inevitable taking into consideration the statement of account which is in the form of the terms of contract binding on the parties. Counsel cited the case of DIAMOND BANK LTD V PARTNERSHIP INV.CO.LTD, wherein Ogbuagu JSC, observed that it is not in every case that evidence has to be adduced in respect of interest claimed before it can be awarded. Counsel also cited U.B.A PLC V LAWAL (2008) 38. WRN (P.82) LINES 35-45 where it was held that interest may be claimed as of right where it is contemplated between the parties. Counsel submitted that by virtue of Exhibit AL 12 (Statement of Account), it is shown that interest is contemplated. He further submitted that Banking practice, usage and custom presupposes that payment of interest is obligatory.
Learned Counsel submitted that the provisions of Order 35 of the High Court of Lagos State civil procedure Rules, 2012 confers on the trial court the power to award post Judgment interest. He urged us to exercise our power under Section 15 of the Court of Appeal Act, 2004 to grant pre and post Judgment interest on the Judgment sum in the interest of Justice.
ARGUMENTS OF CROSS RESPONDENT:
Learned Counsel for the Cross Respondent in his brief filed on the 9th June, 2015 submitted that the learned trial Judge at page 506 of the records duly considered the claim for interest and rightly came to the conclusion that the Cross Appellant was not entitled to same because of his failure to prove his entitlement to interest. He further submitted that the cases cited by the Cross Appellant are inapplicable as the Judge gave reasons however short for its inability to award interest. Counsel submitted relying on EKWUNIFE V WAYNE (W.A) LIMITED 1989 5 NWLR PT 123. 422 ©445 and several other authorities that there are no pleading as to the facts that would entitle the Cross Appellant to interest, whether as a matter of custom, contract or as a matter of equity. He also cited the case IZEHI PROCUREMENT LTD V RICELAND INTERNATIONAL LIMITED 2012 16 NWLR PT. 1325, 200 @219 where it was held that apart from the mere assertion in the pleadings, it is also necessary to lead evidence on the rate of prejudgment interest claimed. Learned counsel further submitted that the statement of account showing interest entry go to no issue as no fact was pleaded on the issue. He posited that the award of Pre-judgment interest is a discretionary order of the court to be exercised based on the facts before the Judge. Counsel argued that the Cross Appellant did not present arguments that would enable the court Interfere with the exercise of the lower court's discretion. He submitted that the provisions of Order 35 of the High Court of Lagos State (Civil Procedure) Rules 2012 are discretional in nature.
Having considered the arguments of the parties on this issue and also having perused the Judgment of the lower court, I agree with Learned Counsel for the Cross Appellant that the learned trial Judge did not in any part of his Judgment directly or indirectly consider the propriety or otherwise of the Cross Appellant's claim for interest. It is trite law that a court has a duty to consider all material evidence and issues raised during the trial. This point has frequently been emphasized in many judicial authorities of the apex court. SEE SAMBA PETROLEUM LTD & ORS V U.B.A.PLC & ORS (2010) 6 NWLR 530 ©531; BRAWAL SHIPPING V
ONWUDIKOKO (2000) 6 SCNJ 508 @522 where UWAIFO JSC observed:-
"It is no longer in doubt that this court demands of and admonishes the lower courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to a miscarriage of Justice and certainly will have that result if the issues not pronounced upon are crucial."
SEE also DINGYADI V INEC (2010) ALL FWLR (PT.550) 1204 @ 1233-1234 H-B.
On the propriety for the grant of pre and post judgment interest, the term pre judgment interest denotes statutorily prescribed interest which accrues either from the date of the loss, or from the date on which the complaint is instituted in court up to the time the final Judgment is entered, it is usually calculated exclusively for liquidated sums. It is also called 'moratory interest'; or interest as of right. SEE BLACKS LAW DICTIONARY 9TH EDITION, 2009; IDAKULA VS RICHARDS (2001) FWLR (PT 14) 2439 at 2452 para 4; FIRST BANK OF NIGERIA PLC V I.A.S. CARGO AIRLINES NIGERIA LTD (2011) LPELR-9827 (CA).
On the other hand, a post Judgment interest (discretionary interest is that which a court is allowed by the Rules of courts to award a successful party or litigant at the conclusion of a trial. See HAUSA V. FIRST
BANK OF NIGERIA, a Court of Appeal Judgment in Appeal NO.CA/J/295/98 dated 12/04/2000 (unreported).
It is trite that a pre- judgment interest must be claimed by the Claimant in his pleadings, and evidence duly adduced in proof of same, otherwise the court is precluded from awarding it. See IDAKULA VS RICHARDS (SUPRA) at 2450 paragraph D. It is instructive to note that as a matter of principle a pre-judgment interest is usually predicated on the agreement of the parties themselves vis-a-vis the custom or practice governing the trade concerned. Thus a court of law will readily award a pre-judgment interest where the claimant is a commercial Bank and the rate of interest filed at the inception of the loan or over draft transaction. However, where the claimant happens to be a private person, or the loan is stated to be a friendly loan, and no interest charge is fixed at the time of entering into the agreement, the court is precluded from awarding interest in such circumstances .SEE UBN VS SAX (NIG) LTD (1994) 8NWLR (pt. 361)150; UBN VS OZIGI (1994) 3 NWLR (pt.363)385.
In the instant Appeal, the Cross Appellant made an allusion to the fact that his account is an interest yielding account and supported it with the statement of account which emanated from the Cross Respondent which showed that the account actually yielded interest and from the evidence of the Cross Respondent that it actually pays interest on the account, but none of these facts was pleaded and it is trite that evidence on facts not pleaded go to no issue. In the circumstances Cross Appellant is not entitled to pre judgment interest although the lower court ought to have made pronouncement of it.
As regards post Judgment interest which is discretionary, it is clear from Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012 that the lower court has the power to award post Judgment interest, being however a discretionary power, this court cannot interfere with the exercise of the discretion by the lower court. Issue 1 is resolved against the Cross appellant and in favour of the Cross Respondent.
Whether the Cross Appellant pleaded and proved his entitlement to exemplary/ancillary damages against the Cross Respondent? (Distilled from grounds 3 & 5 of the Notice of Cross Appeal).
CROSS APPELLANT'S ARGUMENTS:
It was argued quite rigorously by learned counsel for the Cross Appellant that the learned trial Judge having found the relationship between the appellant and respondent to be contractual and the appellant having failed to prove his case still failed to consider and make pronouncement on the award of exemplary/ancillary damages as prayed for by the respondent/Cross appellant in his statement of claim.
Counsel submitted that the act of withholding the respondent's money for no just reason was unconscionable. Counsel urged us to exercise our powers under section 15 of the Court of Appeal Act to award exemplary damages against the Cross Respondent and in favour of the Cross Appellant.
CROSS RESPONDENT'S ARGUMENTS:
Learned counsel for the Cross Respondent in his brief argued that the lower court was right in not awarding exemplary damages or damages for breach of trust, contractual relation and duty of care. He submitted that the Cross Appellant having failed to plead facts and the particulars of special damages and to lead evidence thereon that the cross appellant cannot succeed in its claim.
Counsel further submitted that damages for breach of trust, contractual relations and duty of care are in the nature of special damages for which copious particulars of damages needed to have been pleaded. Counsel cited the case of XTOUDOS SERVICES NIGERIA LIMITED V TAISEI (W.A) LIMITED (2006) 15 NWLR (PT.1003) 533 @ 551 where it was held that a plaintiff claiming special damages has an obligation to plead and particularise the item of damage. Counsel further submitted that the Cross respondent was not shown by pleading and evidence to have benefitted from the transaction. Counsel submitted that the money deposited was valueless and the cross Appellant failed to establish the genuineness hence there cannot be unjust enrichment. He argued that there was no iota of evidence before the lower court to establish the claim for exemplary damages and that the claim as a prayer is not tantamount to facts or proof of the claim.
It is settled law that exemplary damages are awarded where the defendant committed the wrong with reckless impunity, high handedness, exhibiting outright insolence and vindictiveness. In a claim for exemplary damages, the party to the suit must show or establish by evidence that the injury or loss he suffered was due to the malicious act of the party against whom he is claiming the exemplary damages. The principle guiding the award of exemplary damages is as enunciated by GARBA J.C.A. in ENG. FEMI SONUGA & ANOR V THE MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA & ANOR (2010) LPELR-19789 (CA) (Pp. 34-35,paras E-A) thus:
"The principles guiding the award of exemplary damages are that they should be awarded when there is proof that :-( i) the acts of the Defendant was oppressive, arbitrary and wilful disregard of the law, (ii) the Defendant's conduct had been calculated by him to make
a profit or benefit himself which might exceed the compensation payable to the plaintiff, and (iii) the award will serve to assuage or as solace to the plaintiff for the aggravated wrong done to him SEE: EZEANI V EJIDIKE (1964) 1 ALL NLR, 402 ONAGORUWA V IGP
(1991) 5 NWLR (193)647..
In the instant Appeal, it is crystal clear that the Cross Appellant indeed claimed exemplary damages as part of the relief sought, but that alone cannot justify the grant of the award, the Cross Appellant as Claimant has the duty to specifically plead and provide sufficient particulars that can effectively notify the court as well as the defendant of the grounds of oppression, arbitrariness and unjust enrichment, where the fundamental requirement of a specific pleading is absent, the court cannot award exemplary damages. It is not in doubt that the Cross Appellant as claimant actually sought for the relief but he did not either through his pleading nor through the evidence of his witnesses provide sufficient particulars for the award. I therefore hold in line with the Supreme Court decision in ODOGU V A.G.FEDERATION (1996) 6 NWLR (456)508 at 519-20that" before aggravated and exemplary damages can be awarded, it must be specifically claimed and proved". ELIOCHIN V MBADIWE (1986) 1 NWLR (14) 47.
In the light of this, the lower court was right in not making an award for exemplary damages, the Cross Appellant having not provided the court with necessary particulars to enable the court exercise its discretion. Issue 2 is also resolved against the Cross Appellant and in favour of the Cross Respondent.
Whether or not the lower court was correct in evaluating Exhibit AL34? (Distilled from grounds 4 of the notice of cross appeal). Learned counsel for the Cross Appellant on this issue submitted that the lower court was in error in evaluating and giving probative value to Exhibit AL34 (at pages 336 to 378, Vol.2 of the Record of Appeal), the photocopies of the alleged counterfeit currency notes tendered by the Cross Respondent.
Counsel contended that the appellant did not frontload the photocopies at the time of filing her defence as required by the rules of court and that it took the appellant almost three years after the action had commenced before seeking to tender the photocopies. He further submitted that the respondent through his counter affidavit objected to the tendering of the exhibits. He argued that though the lower court eventually admitted the photocopies; that the court in its Judgment ought not to have attached probative value to it being an unsigned document. He urged us to hold that the lower court erred in attaching probative value to the photocopies tendered being an unsigned document. Counsel referred us to the case of OMEGA NIG PLC V O.B.C LTD (2006) 4 W.R. (P. 41) where it was held that an unsigned document is not admissible and where it is admitted, the court ought not to attach probative value to it.
ARGUMENTS OF CROSS RESPONDENT:
Learned counsel for the Cross Respondent on the other hand submitted that the lower court indeed evaluated the said exhibit but did not attach probative value to it. He submitted that the cross appeal did not challenge the failure to attach weight to the document and that there was accordingly no issue for determination. Counsel further submitted that the photocopies were not tendered in support of the statement of defence but were tendered to disprove, refute and controvert the testimony of the Cross Appellant that copies were not made of the currency in paragraph 6 of the statement of claim of the Cross Appellant. He urged us to hold that documents must be admitted and evaluated for the purpose for which they are tendered. He cited the case of ISHOLA V UNION BANK OF NIGERIA LIMITED 2005 6 NWLR PT 922. 422 @ 439.
The law is quite clear that the admissibility of a piece of evidence and the weight to be attached to it in the assessment or evaluation of the evidence before a court are two distinct and separate issues governed by different principles of law. While admissibility is governed by the law, weight or probative value of a piece of evidence is governed by its credibility, probability or conclusiveness of the issue for which it was admitted. A piece of evidence may be admissible in law and admitted at trial, but when put through the crucible of evaluation and assessment by the court, it may be found not to be of much or any probative value or worth in the proof of the point or issue in respect of which it was admitted. I.M.B V DABIRI (1998) 1 NWLR (533) 284; BURAIMO V KARIMU (1999) 9 NWLR (618) 310.
From the arguments canvassed by the parties, they are both in agreement that the learned trial Judge was not in error in admitting the photocopies, the only area of controversy is whether the court attached probative value to it and whether it is necessary to evaluate evidence for the reason it was adduced.
The law, ordinarily and generally is that the admissibility of any piece of evidence, documentary or otherwise in judicial proceedings civil and criminal before courts or tribunals established by statutes, including the Constitution, is governed by relevancy under the provisions of Section 1 of the 2011 Evidence Act. NTOE ANDREW & ORS V THE CONGREGATIONAL BOARD, ISHIE PRESBYTERIAN CHURCH & ORS (2013) LPELR-20203 (CA).
The contention of the Cross Appellant is that the lower court by making reference to the admitted photocopies in its judgment being an unsigned document is tantamount to ascribing probative value to it and consequently erred thereby. It is true that our courts have held that unsigned documents should attract little or no evidential weight. JINADU & ORS V ESUROUNBI- ARO & ANOR (2009) 9 NWLR part 1145 PAGE 55 at p.81. Indeed many decisions say that an unsigned document is a worthless piece of paper that has no evidential value. AMAIZU V NZERIBE (1989) 4 NWLR part 118 page 755. However it is not everything in writing that goes under the rubric of "document" that will lose its evidential worth simply because it is not signed. In the instant case, the photocopies of the Currency notes as contained in Volume II of the record of Appeal are as far as I am concerned of no value without the signature of the Cross Appellant. The view expressed by the learned trial judge that the serial numbers of the alleged fake dollars were not indicated on the face of the tellers to enable the court compare them with the photocopies of the alleged fake dollar notes confirms the view that the fact that the photocopies were not signed by the Cross Appellant in proof of what was actually paid into the bank renders the photocopies worthless as evidence of what the Cross Appellant paid into the Cross Respondent bank. But the photocopies having been admitted in evidence, the court is at liberty to evaluate same and indicate why it is not according it evidential value. AWOLAJA V SEATRADE GBV (2002) 4 NWLR (Pt 758) 520 @ 532 C-D. Whether Exhibit AL34 was evaluated for the reason it was adduced is another issue not covered by the grounds of this appeal. Issue 3 is also resolved against the cross appellant and in favour of the cross Respondent.
Having resolved all the issues against the Cross appellant, I hold that the cross appeal lacks merit. It is hereby dismissed. I make no order as to costs.
CHINWE EUGENIA IYIZOBA
JUSTICE COURT OF APPEAL
M.J. ELOCHUKWU (MISS) FOR THE APPELLANT/CROSS RESPONDENT
ISRAEL OKPAKO ESQ. FOR THE RESPONDENT/CROSS APPELLANT
I had the privilege of reading in draft form, the Judgment just delivered by my learned brother Chinwe Eugenia Iyizoba JCA. I agree with her reasoning and final conclusions in the lead Judgment. I just have a few words of mine to add. If a bank accepts money and deposits it in a client's account, it would be difficult to turn around and say that the dollars deposited and credited are now fake. Despite the lies and unusual procurements of fake documents the Appellant had the burden of proving that the USD deposited were fake.
It is settled that the relationship between a banker and a customer where a bank accepts money either in a current or deposit account from is customer, is a relationship of debtor and creditor. The relationship is essentially contractual. See Balogun v. N.B.N Ltd. (1978) 11 NSCC page 35 Afribank Nig. Plc. v. A. I. Investment Ltd. (2002) 7 NWLR Pt. 765, page 40. See also Wema Bank Plc. v. Osilaru (2007) LPELR - 8960.
In view of this relationship between the Bank and its customer, the Banker is the one in custody and control of monies standing in the credit of the customers.
In the present case, the Bank accepted the deposit in USD and credited the Respondent's account. Once you accept that money and credited, the burden is on the Bank to prove that the USD deposited is fake. Once you have accepted it and credited, the presumption is that it is genuine. The Bank will have an uphill task to prove that the USD it accepted is fake. The Bank was in custody of the USD. What the Respondent has is a contractual right to demand repayment of such monies. See Purification Tech. Nig. Ltd. v. A.G. Lagos State & 3 Ors. (2004) 9 NWLR Pt. 879 page 665. Yusuf v. ACB (1981) 1 SC page 74. Wema Bank Pic. v. Osilaru (supra)
For this and the more comprehensive reasoning in the lead Judgment, I will also allow this appeal in part. I also abide by all the consequential orders contained therein.
I also read the judgment in the Cross-appeal before now. I am in total agreement with the reasoning and conclusion in the lead Judgment.
The Cross-appeal lacks merit and it is dismissed.
UZO I. NDUKWE-ANYANWU
JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JCA: I had the privilege of reading before now the lead Judgment prepared and rendered by my learned Brother CHINWE EUGENIA IYIZOBA JCA. I am in complete agreement with the reasoning and conclusion and adopt the entire Judgment as my own with nothing useful to add.