Hirat Aderisola Balogun V National Bank Nig Ltd (1978)

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IDIGBE, J.S.C.

The question in this appeal is whether the Appellant is entitled to substantial damages for the dishonour of her cheque by the Respondents without any allegation, in her pleadings, of special or actual damage flowing from such dishonour of the cheque and proof of the same The Appellant who is a barrister and also enrolled as a solicitor of the Supreme Court of Nigeria was, at all times material to the proceedings in the case in hand, actively engaged in practice as a solicitor in the metropolis of Lagos.

The facts which appear, from the record, to be not in dispute are as follows: the Appellant operates two banking accounts with the Respondents; one in her private and personal capacity at the Marina Lagos Branch of the Respondents company and the other her practice and clients account, at the 40 Balogun Street, Lagos Branch of the said company. On the 6th January, 1972 Appellant drew a cheque on the 40 Balogun Street Branch of the Respondents for N40 in favour of one of her clients a Mrs. Sidney of Ikeja in the Lagos State.

A few days later, Mrs. Sidney returned to the appellant and produced to her the said cheque which had been marked “Refer to Drawer” by the Respondents who had refused to make payment of the sum of N40 forty Naira (i.e. the equivalent of 20pounds twenty Nigerian pounds) to the payee, Mrs. Sidney. At the time the cheque was presented to the Respondents for payment, the Appellant had enough money in fact, more than enough with the Respondents in her clients account to meet the cheque for N40 (forty Naira).

The facts given in evidence by the Appellant, and her witness and which have not, in any way, been challenged are:

(1) On the 31st day of December, 1971 the Appellant whose business account was in credit lodged with the bank for payment into the same account the sum of 93pounds,2s.6d (i.e N186.25k; one hundred and eighty six Naira and twenty five kobo, the equivalent of Ninetythree pounds two shillings and six pence).

(2) The Appellant has not a personal, private or other account with the Respondents i.e. at the 40 Balogun Street Branch of the company (hereafter referred to as “the Respondents’ Branch” or “the branch”).

(3) When, a few days after issue of the cheque Exhibit A which was dishonoured (hereafter also referred to as “the dishonoured cheque”) the Appellant immediately telephoned and spoke to the Manager of the branch, a Mr. Adeleke, and complained to him about the unmerited treatment she had received from the branch, Mr. Adeleke was not only impatient with the Appellant but treated the complaint with levity. It is just as well to mention here that on returning the dishonoured cheque to the Appellant, Mrs. Sidney had to say to the Appellant that she was surprised that “a cheque of only 20pounds from a lady of her type could bounce”; whereupon, annoyed and embarrassed the Appellant immediately paid the sum of 20pounds to Mrs. Sidney from her resources in the office.

(4) The Appellant thereafter went to the bank and on arrival there was, at her request, shown in the accounts department of the bank, her ledger card from which she was satisfied that she had more than enough money to meet the dishonoured cheque. Thereafter she went back to her office and later sent a written complaint, Exhibit B, to the Respondents which drew a reply Exhibit C; further to Exhibit C, the Appellant sent another letter, Exhibit D, to the Respondents.

(5) The Appellant was not allowed to operate her clients’ account until after “the matter was sorted out” as per Exhibit ‘F’, a letter dated 15th March, 1972 from the Respondents.

(6) When Mrs. Sidney gave evidence she also confirmed to the court that

(a) she read the endorsement “Refer to Drawer” on the cheque and (b) she not only was surprised that a cheque for a mere 20pounds from a lady of the Appellant’s type could bounce but told her so.

(7) At all times material to the issue of the dishonoured cheque the Appellant who practised under the name of “Balogun & Alatishe” kept her clients’ account at the Respondents Branch (i.e 40 Balogun Street, Lagos) under the name of” Balogun & Alatishe” & Co.:Solicitors. Now, in Exhibit B, the Appellant wrote on 21st January, 1972 to the Respondents as follows:

“A/C0376 Balogun & Alatishe & Co. Barristers & Solicitors