Mrs. Felicia Durowaiye V. Union Bank Of Nigeria PLC (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A.(Delivering the Leading Judgment)

This appeal is against the decision of the Kwara State High Court presided over by S. D. Kawu, J delivered on 17th September,2013. The learned trial judge gave judgment to the claimant (now appellant) only in the sum of N31,392.90k on her old account number 15:435 with interest to be paid at the then prevailing rate calculated from 2nd May, 1994 till 15th November, 1994 and N2,547.76k in the new account number 3182000061745. All other claims under different heads were dismissed.

The Appellant had instituted this action in the Lower Court against the Respondent as follows:

i. “A DECLARATION that the defendant is breaching her duty to the claimant by her misrepresentation to the claimant to pay money for re-activation of her old account in the bank without the Defendant intention (sic) to really effect such re-activation for the claimant benefit,

ii. AN ORDER to pay the claimant the sum of N31,392.90 that has been the balance from 1994 to date with all the interest applicable.

iii. A sum o f N5m as special damages.

iv. A sum of N2m as general damages for the untold emotional distress and travails caused to the claimant on account of the negligent treatment and misrepresentation by the defendant to the claimant since the year 2007 when he had first approached the defendant branch for possible collection of the balance on her old account.”

At the trial, the Appellant testified in support of her claim and tendered eleven (11) exhibits while the Respondent called one witness and tendered one (1) exhibit, in defence of the claim.

At the close of the trial, the Appellant was dissatisfied with the judgment and appealed to this court. The Appellant formulated two (2) issues for the determination of this appeal as follows:

1. “Whether the Honourable trial court was not wrong in holding that the defendant has not breached her duty to the claimant by misrepresentation or negligent to entitle the claimant to special and general damages – grounds 1, 2, 3, 4 and 5.
2. Whether the Honourable trial court was not wrong in holding that the claim for the award of Special damages by the claimant in the sum of N5m has not been particularized in the statement of claim and strictly proved by evidence as required by law. – ground 6.”

The Respondent on her part, raised a preliminary objection challenging the competence of the particulars in support of Grounds 1, 2, 3 and 4, as well as the competence of grounds 5 and 6. The Appellant’s issue one was also challenged in urging us to dismiss the appeal. In the alternative, the Respondent in respect of the substantive appeal formulated two (2) issues for determination of the appeal. They are:

(a) “Whether the conclusion of the trial court that the Respondent did not breach her duty to the Appellant as to make the Respondent liable to the Appellant in misrepresentation and negligence was not justifiable having regard to the evidence led on the pleading of the Appellant before the trial court. (This issue is in respect of grounds 1, 2, 3, and 4 of the Appellant’s grounds of Appeal).

(b) Whether the Appellant was entitled to special and or general damages against the Respondent or whether there was any basis in law for the trial court to have awarded any special and or general damages against the Respondent having regard to the evidence presented to the Lower Court and the conclusion of the Lower Court. (This issue is in respect of grounds 5 and 6 of Appellant’s ground of Appeal).”

When the appeal was heard, the learned counsel to the Respondent Abdulwahad Bamidele Esq. withdrew grounds (iii) and (iv) of the grounds of his objection, which were struck out with the argument in their support, leaving the following:

i. “Grounds 1, 2, 3 and 4 of grounds of appeal are supported with particulars of errors that are inexplicably irrelevant, inconsistent and extraneous.