Afribank Nigeria Plc. V. Barrister Sunny A. Anuebunwa (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of Hon. Justice L. Abai delivered at the Aba Judicial Division of the Abia State High court on the 12th of March 2009. The facts that led to this appeal are as follows:

The Plaintiff now Respondent is a lawyer with his office at Aba while the Defendant now Appellant is a limited liability company with branch office all over Nigeria particularly Aba. The Respondent was a customer of the Appellant operating a current account No. 0961533812511 with the Appellant at its Jubilee Road Branch, which to the knowledge of the Appellant was for the purpose of and in connection with his trade and profession. On 23rd May, 2006, the Respondent issued an Afribank Nigeria Plc cheque in favour of Messrs Ania Motors Limited for the sum of N573,300.00. When Messrs Ania Motors Limited paid in the cheque into its First Bank account for clearing and payment by Afribank, the cheque went for clearing but was dishonoured and the Appellant caused the letters “DCR” to be written on the said cheque. One of the Appellant’s employees had at the material time called Respondent by phone to confirm the cheque which he did. Nevertheless, the Appellant dishonoured the cheque.

By a Writ of Summons accompanied by the Statement of Claim dated 27/6/2006 at Pg. 1-13 of the Records of Appeal the Respondent as Plaintiff claimed the following reliefs in these terms:-

“WHEREFORE the plaintiff claims against the defendant N50,000,000 damages (Fifty Million Naira) being damages suffered by the plaintiff as a result of:

“(a) The wrongful dishonor of the said cheque (Breach of Contract) by the defendant and/or negligence of the defendant on dishonor of the said cheque of 23rd May 2006 issued by the plaintiff and

“(b) The publication by the Defendant of and concerning the Plaintiff of the words Drawers Confirmation Required (“D.C.R”)

Pleadings were concluded by the parties, issues were joined and the case proceeded to trial. The Respondent herein as Plaintiff at the trial court gave evidence on his own behalf and called two witnesses. The Appellant herein also called two witnesses.

The Plaintiff’s case at the trial court was that the Appellant wrongfully dishonoured the cheque of N573,300.00 issued to Ania Motors Ltd when he had sufficient funds to warrant the payment of the cheque. The Respondent argued that though he introduced the “practice” or “style” of endorsing the back of the cheques he issued in certain instances, the Appellant was not justified to dishonour the instant cheque because confirmation/endorsement at the back of cheques was not part of the mandate signed and submitted while and when opening his account with the Appellant Bank. He led evidence to the effect that the dishonor of the cheque injured his reputation particularly with Ania Motors who were his clients.

The Defendant’s case at the trial court was that in the light of the conduct, “practice” and “style” of the Respondent in endorsing the back of his cheques, the Appellant was justified to demand his confirmation before honouring the cheque in issue since that cheque of such a large amount contained no form of confirmation or endorsement.

At the end of the trial, the learned trial judge entered judgment for the Respondent in the sum of Three Million, Five Hundred Thousand Naira only, being general damages for the wrongful dishonour of the Respondent’s cheque and the publication of the words “D. C. R.” “Drawer’s Confirmation Required.”

This is an appeal against that judgment. The parties settled their briefs in this court. The Appellant’s brief dated 12/5/10 was filed on 13/5/10 while the Respondent’s brief dated 8/6/10 was filed on 11/6/10.

Parties each adopted a sole issue similar in content for determination which is in essence a challenge of the finding of the learned trial judge. I will adopt the Appellant’s sole issue in the determination of this appeal. It is couched as follows:

“Whether in the peculiar and exceptional circumstances of this case, the evidence on record and admitted documents, the learned trial judge of the court below was right in finding and holding that the Appellant wrongfully dishonoured the Respondent’s cheque issued to Ania Motors Ltd”