African Continental Bank Plc. V. Haston (Nigeria) Limited (1997)

LawGlobal-Hub Lead Judgment Report

ACHIKE, J.C.A.

The plaintiff a private limited liability company operates, at all material times, a current account with the defendant bank at Calabar. Plaintiff’s case is, that as customer of defendant bank, and by means of certain forged cheques, its account was fraudulently debited with a total sum of N212.700.00. As a result of the defendant’s negligence, the plaintiff suffered in its trade and business and also injured as to its credit and has been unable to pay its creditors. Whereof the plaintiff claimed against the defendant as follows:

“(1) The Defendant is in breach of her duty to the Plaintiff by refusing to make available to her, her STATEMENT OF ACCOUNT and copies of the cheques and instruments drawn on the Account as demanded.

(2) The Defendant is in breach of her duty to the prevailing interest rate of 54% per annum from the date of withdrawal until judgment.

(3) N5 million being damages for breach of contract, negligence and loss of reputation.”

The defendant denied any forgery or fraudulent debiting of plaintiff’s account or any breach of contract and raised various legal defences which were rejected by the trial court.

At the conclusion of the hearing, the learned trial judge Effanga J (as he then was) found for the plaintiff and entered judgment in its favour as follows:

“(1) N212, 700.00 being money fraudulently withdrawn from the plaintiff’s Account No. 05604 as a result of the Defendant’s negligence and collusion.

(2) Interest on the principal calculated at the rate of 54% per annum from the date of withdrawal until judgment.

(3) N3.5 million being general damages for the breach of contract, negligence and loss of reputation. N1,000.00 as cost.”

Dissatisfied with the judgment defendant has appealed to this court, having filed nine grounds of appeal.

Chief U. N. Udechukwu SAN, learned counsel for the appellant formulated the following issues for determination:

“(1) Whether the Respondent’s Solicitor at the trial court could in fact be said to have failed to sign the plaintiffs amended statement of claim.

(2) Whether, if indeed the Solicitor did not so sign, or date the amended statement of claim, such a ground was sufficient, or even valid to reverse the decision of the trial court, having regard to the provision of the Cross River State Civil Procedure rules.

(3) Whether the Respondent, as plaintiff, suing in her name and own behalf, needed or could be required to produce authority from herself to herself, to warrant taking out the proceedings.

(4) Whether this court is not empowered under its rules to effect an arithmetical correction, once proven to be merely so, and thereby sustain, rather than overturn the judgment of a lower court.

(5) Whether the pleadings and evidence of the Respondent, as proposed before the trial court were insufficient to prove custom and usage, as well as elicit the grant of interest over the principal award, as allowed by the Learned Trial Judge.

(6) Whether the Learned Trial Judge was not entitled to make findings and to effect award in favour of the Respondent for general damages under more than one subhead of substantive law, particularly in Tort and in contract.

(7) Whether on the totality and preponderance of the evidence in proof of the respective pleadings between the parties before him, the learned Trial Judge was wrong to enter judgment for the Plaintiff/Respondent.”

For the respondent, its learned counsel Mr. Richard Ebri also formulated seven issues for determination:

“(i) Whether the learned trial judge had the jurisdiction to decide the case based on the Plaintiff’s further Amended Statement of claim which was neither dated nor signed;

(ii) Whether the learned trial Judge was justified when he said that the threshold issue as to competence of the suit raised by the Defendant did not arise and that the averments in paragraphs 4 to 8 of the Defendant’s further Amended Statement of defence were misconceived, misplaced and frivolous.

(iii) Whether the learned trial Judge was justified when he relied on Exhibits 1, 1A, 4 and 5 to give judgment in favour of the plaintiff.

(iv) Whether the learned trial Judge was justified when he held that paragraphs 14, 15, 16, 19, 20 and 21 of the Further Amended Statement of claim were not abandoned.

(v) Whether the award of the sum of N212,700.00 to the Plaintiff as “money fraudulently withdrawn from the Plaintiff’s account No. 05604 as a result of the Defendant’s negligence and Collusion” is justifiable.

(vi) Whether the award of 54% Interest per annum as interest on the principal sum of N212,700 is justified by the pleadings and evidence in this case.

(vii) Whether the award of the sum of 3.5 Million Naira to the Plaintiff as general damages for breach of contract, negligence and loss of reputation was warranted by the pleadings and the evidence in this case.”

At the oral hearing no further arguments were advanced by counsel who relied on their respective briefs.

On appellant’s first issue, Chief Udechukwu SAN submits that failure to sign and date the plaintiff/respondent’s pleadings rendered the same null and void, as the court lacked the jurisdiction to act on the said unsigned and undated pleadings. Reliance was placed on Anunam (Nig) Ltd. v. Leventis Motors Ltd. (1990) 5 NWLR (Pt. 151) 458 at p. 568. For the respondent, Mr. Richard Ebri of counsel submits on their behalf that the amended statement of claim was signed because, according to counsel, it is sufficient by the dictionary meaning of the word ‘signature’ once what is done by a person amounts to:

” …. an indication by sign, mark or generally by writing of a name or initials that a person intends to bind himself to the contents of a document.”

In other words, it is counsel’s submission that mere typing in of a person’s name or initials will amount to sufficient signature. Counsel refers to P. 40 of record to show that the submission on the document not being dated is misconceived. It is also counsel’s further submission that the provisions of Order 25 Rule 28 and Order 2 Rules 1 and 2 of the Cross River State High Court Rules are enough to take care of the question of failure to sign the pleadings by respondent. Counsel further submits that the authority of Anunam case is not helpful in the instant case and cites several authorities in support of this contention to stress that the complaint about absence of signature is one based on technicality which counsel contends should be discountenanced.

Clearly, in ordinary parlance, to sign a document or place one’s mark or to thumb impress a document as it applies to any person implies to affix one’s signature or that which he regards as his mark or to affix his thumb impression on the document. The submission of respondent’s counsel that mere typing of a person’s names or initials on a document is sufficient to constitute that person’s signature or mark is, with respect, rather on the ridiculous side because the requirement for introducing one’s signature on a document prima facie envisages the act of affixing what a person affirms to be his signature, and this may well be his mere mark, or sigh or simply writing his initials thereon. Whatever is done to represent a person’s signature, it is manifest that it requires doing something overt on the document which is recognisable by any interested person. It is therefore untenable to hold that merely typing of a person’s name on a document, without more, will by any imagination amount to affixing ones signature thereon. But the learned trial judge Effanga J. (as he then was) reasoned differently. This is how he put it at 146 line 3 et seq of the record:

“Order 25 Rule 4 provided for the signing of pleadings. It however does not define the word “sign”. But MOZLEY Law Dictionary says that “SIGNATURE” is an indication by sign, mark or generally by writing of a name or initials that a person intends to bind himself to the contents of a document. That in my view is just what Okon N. Efut Esq did. He intended to be bound by the contents of the Statement of claim as amended.”

Learned Appellant’s counsel who had earlier cited and relied on Anunam case as good authority for the invalidity of the pleadings by reason of absence of signature of respondent’s counsel goes further and says that “the authority is binding on the lower court, being a decision of the Court of Appeal (Jos Division) who lacked the jurisdiction to ignore that decision or depart from it.” In support of this proposition, he relied on Okonjo v. Odje & Ors. (1981) 10 SC 267 at 268.

Learned appellant’s counsel described the learned judge’s conclusion as non sequitur, I am clearly of opinion that the conclusion of the learned trial judge is insupportable, and indeed misconceived being contrary to the definition proffered in the Mosley Law Dictionary. It is obviously going too far to impute that by merely typing of “Okon Efut Esquire” on the pleadings tantamount that the named counsel signed the pleadings. That reasoning is far-fetched and to say the least, weird.

Ex facie, the submission of learned counsel for the appellant is seemingly sound but it appears to me that a lot depends on all the circumstances of the case. The doctrine of stare decisis is now firmly established in our jurisprudence that it ought not to lead to any confusion. Nevertheless, be it noted that a trial judge who is confronted with a decision of this Court is not obliged to follow such earlier decision of the Court hook, line and sinker where he finds that the earlier case is distinguishable from the facts or circumstances of the case under reference. After all, the doctrine of precedent only enjoins a lower court to follow the early decision of a superior court which is found to be seemingly on all fours with the case under consideration by the lower court, and not otherwise.

Appellant’s learned counsel has urged us to affirm our decision in Anunam case. This will depend on the construction we shall give to the relevant provisions of the applicable law. The question whether failure to sign or date the pleadings will nullify the pleadings depends on the effect to be given to Order 25 Rule 28 of the Cross River State High Court Rules. That rule provides that: “No technical objection shall be raised to any pleading on the ground of any alleged want of form.”

It is manifest that counsel’s omission to affix his signature to his pleadings is an error or irregularity which goes to form. Such failure is excused by Order 25 Rule 28. It is enough answer to appellant’s complaint under issue No. 1.

No doubt if appellant counsel had raised this point of omission or irregularity in limine he would have been satisfactorily met by the provisions of Order 2 Rule 2(1) which states:

“An application to set aside for irregularity any proceedings or any document ….. shall not be allowed unless it is made ….. before the party applying has taken any fresh step after becoming aware of the irregularity.”

It would have been obvious that appellant’s amended statement of claim dated 16/8/93 would tantamount to a step envisaged under Order 2 Rule 2(1) sufficient to put to an end to the quibbling on irregularity.

Let us now examine the background underlying the decision in Anunam case. There, in that case which originated in the Plateau State High Court, pleadings were neither dated nor signed. Ordinarily, that state of the pleadings would be inconsequential to the validity of the pleadings, except that by the High Court Law applicable to Plateau State, its Order 18 Rule 18 enjoins the lower court to make references to the applicable rule of practice and procedure for the time being in force in the High Court of Justice in England and conform therewith Mutatis mutandis. The invocation of that applicable rule of procedure requires that pleadings shall be dated and signed. On appeal, the Jos Division of this Court held, and rightly in my view, that the unsigned and undated pleadings rendered the pleadings invalid, so also the proceedings. This meant that the trial Judge lacked the jurisdiction to found against the defendant.

This, however, is not the situation in the instant case. I am satisfied that the decision in Anunam case neither bound the lower court nor binds this court as the applicable laws in the two cases are different and are bereft of ambiguity. No doubt, although I am clearly of the view that, failure to sign the pleadings would ordinarily not have the effect to invalidate the pleadings, nevertheless, any adverse consequence to the contrary has been neutralized by the benevolent provisions of Order 25 Rule 28 of the Cross River State High Court Rules. Rule 28 ensures that anachronistic and undue adherence to technicalities under our adjectival law would no longer be tolerated or used as an instrument or ridicule to enthrone injustice. So I said elsewhere in OHMB v. B.B. Apugo & Sons Ltd. (1995) 8 NWLR (Pt. 416) 750 at p.753:

“… the present mood of the courts, particularly the appellate courts has shown a radical shift from the stance of absolute rigidity and undue reliance on technicality to one of liberality.”

This approach had earlier been endorsed by Karibi-Whyte J. S. C. in Ihrahim v. Osim (1988) 3 NWLR (Pt. 82) 257 at p. 296.

The conclusion from the foregoing is that issue No. 1 lacks merit and the same is resolved against the appellant.

Appellant’s counsel calls the 2nd issue a threshold issue because it raises the question of the competence of the plaintiff/respondent to institute the action. He contends that the burden is on the respondent to establish his competence to initiate the action otherwise the court would be incompetent to entertain the suit. Reliance is placed on Ajao v. Sonata & Ors (1973) 5 S.C. 119 at 123. Counsel submits that when an action is taken against a limited liability company and when the right to initiate the action is challenged, the burden is on the plaintiff to establish the authority empowering it to initiate the action. It is his further submission that Exhibit 2, the Mandate Card does not convey such authority, nor do Exhibits 4 and 5. Finally, counsel relies on section 244(1) of Companies and Allied Matters Act 1990 (C.A.A.) in his contention that Management of the Company rests in the collective management of the Board of Directors and the Board must act by resolutions and relies for this proposition on Atewolgun v. Metro Motors Ltd (1978) NCLR 346. Concluding, he submits that in the absence of production of such resolution of the Board authorizing the commencement of the action, respondent’s suit would be incompetent.

Respondent’s learned counsel submits that no such authority is required for a company to institute an action and that the authority of Ajao v. Sonola & Ors (supra) only applies where a person sues in a representative capacity for and on behalf of the company. Finally, counsel submits that sections 244(1) and 292 of the CAMA 1990 are inapplicable and urged us to disregard all the submission on this issue.

It goes without saying, and indeed as good legal principles that for a suit to be validly constituted the plaintiff must have the capacity and competence to initiate it. The right to initiate a suit can be challenged, and invariably is challenged as soon as possible in order to enable the trial court make a decision in respect thereof. Competence of the plaintiff is a fundamental issue as it goes to the question of competence of the court to entertain the suit. In other words, it goes to the issue of jurisdiction. Where there is a challenge to a party’s right to initiate an action, as was done by the defendant/appellant in the instant case, the burden rests on the defendant/respondent to establish his competence to initiate the action. Ajao v. Sonola & Ors (supra) is a good authority that there must be competence as well as capacity by plaintiff/respondent to institute an action. Contrary to what learned respondent’s counsel has submitted, I am clearly of opinion that Ajao case is helpful on the issue of competence of the appellant to institute the action at the lower court. By section 244(1) of CAMA, 1990, as well as by Exhibit 6, it is unquestionably clear that the management of a company is the collective duty of the Board of Directors. It is also firmly established that no person can institute an action in the name of a company unless it is so instituted on the authorization of the company upon the resolution of the Board of Directors or the resolution of the shareholders. This is so because where an injury has been done to a company, it is the company that has the right of the action and not any of the member or group of shareholders, acting together. See Foss v. Harbottle (1843) 2 Hare 461. In the absence of aforesaid resolution any action so instituted on behalf of the company is nullity. See Danish Merchantile Co. Ltd & Ors v. Beaumount & Anor (1951) 1 All E.R. 925. But it is also open to the purported plaintiff company to ratify the unauthorised act of the person who constituted the action in a general meeting to give the authorization by ordinary resolution. See Marshall’s Value Gear Co. Ltd. v. Manning, Wardle & Co. Ltd. (1909) 1 Ch. 267. Having perused Exhibit 6, the Memorandum and Articles of Association of respondent company, I am clearly of opinion that there is nothing in it that confers even on a director the right to initiate an action.

Despite the challenge to the respondent’s company to initiate the action, it simply contended, and placed reliance on the evidence of the ipse dixit of PW1, that the suit was regularly initiated without however producing any resolution authorizing the commencement of the suit. Surely, the learned trial judge was in error to deny that there was compelling need for the respondent to prove its competence by producing the resolution of the Board or ordinary resolution of members of the company. I am of opinion that failure to produce this authority to initiate the legal action is fatal to the claim. See Provincial Highway Chemist (Nig) Ltd. v. S. S. Umaru & 2 Ors (1986) F.G.C.L.R. 196 and Trans Atlantic Shipping Agency Ltd & Anor v. Dan Trans Nigeria Limited (1996) 10 NWLR (Pt. 478) 360 at 368. The contrary view of the learned trial judge that the production of the resolution authorizing the commencement of the legal proceedings was unneedful, is insupportable.

In the result the 2nd issue is resolved against the respondent.

On Issue No.3 appellant’s contention is that the learned trial judge was not justified to rely on Exhibits 1 1A, 4 and 5 to enter judgment in favour of the respondent. The submission made on behalf of the appellant by their learned counsel is that the only person who could complain about Exhibits 1 & 1A is plaintiff/respondent and there was no legal evidence of any complaint that payments were made on Exhibits 1 & 1A. It is his further contention that Exhibits 4 and 5 were respectively a letter (Exhibit 4) written kanu G. Agabi, of counsel to appellant bank in respect of the personal account of one Victpr Egba of 101 Marian Road Extention. Calabar on the other hand written by respondent’s counsel. Mr. J.B. Aniekan. It is manifest that Exhibits 4 and 5 do not strictly relate to anything done on behalf of the plaintiff/respondent, Haston (Nig) Ltd. Indeed, the preamble of Exhibit 4 makes it clear that that document was written on behalf of one Victor Ndoma-Egba. Even though this same person, who testified as PW1 and styled himself as “Chairman of the Board of Directors of plaintiffs company” and further claims that he “is a Director.” I would be testified that “Patrick T. Taiwo is the other Director. I would be surprised to know that I am not a director. There was a resolution before I was appointed a director. The defendant satisfied themselves before the Account was opened and maintained for at least three years, they did not complain about any directorship.”

The response of appellant’s Issue No. 3 tallies with part of respondent’s 7th Issue and part of the appellant’s respondent’s 7th Issue and part of appellant’s Issue No.4. It is the submission of counsel to the respondent that although the correspondence. Exhibits 4 and 5, were between Victor Ndoma-Egba and the appellant, their contents affected the respondent. Counsel further submits that the standard of proof required of the respondent in the case on hand is one that rests merely on balance of probabilities and not a proof beyond reasonable doubt. No doubt, the last submission is a valid principle of law.

It is perhaps necessary, in passing, to say just a word about the legal proposition so well-put by learned respondent’s counsel in his brief, namely, that the burden of proof on the respondent is one merely on balance of probabilities and not a proof beyond reasonable doubt. Undoubtedly, proof beyond reasonable doubt imposes a heavier burden on the party who had the onus of proof. This is the standard of proof prescribed for success in criminal prosecution. It is enough for our present discussion in expatiation of that term of art that proof beyond reasonable doubt implies or imposes a burden on a prosecutor to establish his case to the hilt. This means that all the material ingredients of the offence must be established to the satisfaction of the court. See Woollminston v. D.P.P. (1935) All ER (Reprint) 1. On the other hand, in civil cases the burden of proof is not as heavy.

Thus a rather small evidence may be required to prove a claim. So long as the fact sought to be proved has been established. Therefore, for a straightforward and non-contentious fact, very small or minimal evidence only will be required in proof thereof whereas a highly contentious fact, for example the question of directorship of PW1 and the fact of certain resolutions have been made by respondent company would only be established on preponderance of evidence.

The following observations deserve our action. First, the statement of defence, paragraph 4(1) denied that Chief Victor Ndoma-Egba who testified as PW1 was neither a Director or a shareholder of the plaintiff company. Secondly, on the admission of PW1 , the other Director of respondent company in the Articles and Memorandum of Association submitted to the appellant, in the document admitted into evidence as Exhibit 6 is P. TAWO. Yet Exhibit 6 did not confirm that PW1 was a Director of respondent company. On the contrary, Exhibit 6 named one J. BIKOM OWAN as a Director as well as P. TAWO as the second Director. Surely, it is the law that in the face of P.W.1’s claim as being a director and the challenge to this assertion in the appellant’s pleadings, rigourous cross-examination on the same issue and the unequivocal evidence of DW1 disaffirming that claim to P.W.1’s directorship, it behoves PW1 to produce good legal evidence in proof to the challenge to his directorship. In other words, the mere ipse dixit of PW1, without more, cannot effectively match the overwhelming evidence produced by the adversary in challenging his claim. Indeed, as often as I peruse Exhibit 4 and 5, the more I am convinced and left in no doubt that respondent company was a total stranger to those documents. The name Haston (Nigeria) Ltd never featured in those exhibits. How can any fair-minded tribunal allow itself, even inferentially, to be influenced by those exhibits to found a judgment in favour of the plaintiff/respondent in the face of absolute absence of any nexus or linkage between PW1 and Haston (Nigeria) Ltd., bearing in mind that Exhibit 4 was written on behalf of Victor Ndoma-Egba, who was fielded as PW1. Suffice to say that it beats the imagination.

Nevertheless and unfortunately, PW1 simply relied on his empty ipse dixit, to answer the serious challenge to his locus standi in relation to the respondent company. Clearly, this weakened respondent’s case, even on mere balance of probabilities. PW1 also testified that there was resolution of the respondent company appointing Kaine Agabi & Associates to initiate the action. No such resolution was thought fit to be tendered in evidence. No doubt, if it had been tendered, P.W.1’s name would appear thereon as one of the directors who subscribed to the said resolution. PW1 further testified that there was also a resolution of the Board of Directors of respondent’s company mandating him (PW1) as “Chairman to prosecute this matter, in court or through negotiations with Defendant if they are so disposed to its logical conclusion. In the face of the challenge to P.W.1’s claim as Director his mere ipse dixit, as already noted, in assertion thereof is hopelessly insufficient to erect the legal evidence required to sustain his bare assertion. PW1 and the respondent, ought to bear in mind that it is quite elementary but fundamental, and requires no authority to support the legal principle that he who asserts must prove. No effort was made to compel the appellant to produce the so-called resolutions which apparently were in the custody of the appellant in proof of the claim to directorship or chairmanship of the Board of Directors.

Also it is not borne out from evidence on record that respondent’s company, a limited liability company, made any demand on the appellant for either a statement of account (either in writing or orally through its servants) for paid cheques or for restitution for unauthorized payments made on Exhibits 1 and 1B.

It is quite clear to me that I can resolve Issue No.3 without going into the point whether there was satisfactory evidence or proof beyond reasonable doubt as to the criminal allegation of forgery of Exhibit 1 and 1B.

Holding earlier as demonstrated by the failure of the respondent to make a demand for loss arising from exhibits 1 & 1B or even lodge formal complaint in respect of Exhibits 1 & 1B, as well as the complete irrelevance and lack of nexus between Exhibits 4 & 5 and the respondent’s company, it is my view that by no stretch of imagination could those four exhibits on their own alone assist the learned trial judge to found in favour of the respondent. In the result I also resolve the third issue in favour of the appellant.

In the appellant’s fourth issue, paragraphs 14, 15, 16, 19, 20 and 21 were submitted to be deemed to be abandoned because respondent failed to lead evidence in respect of the facts averred in respect of those paragraphs. I shall take the paragraphs one by one.

With regard to paragraph 14 of the amended statement of claim, respondent pleaded that in consequence of the fraud perpetrated on the respondent’s account, it was obliged to spend money for running its business as traders and contractors and forced to borrow money from finance house at the rate of 15% monthly interest but PW1 testified (at p. 100 of the record) that it borrowed money from Finance Houses at the interest rate of 60%. Clearly, this piece of evidence is contrary to the pleadings and parties and even the courts are bound by the pleadings. Such conflict in evidence goes to no issue; it does not avail the respondent. It is good as saying that the pleaded facts have been abandoned Emegokwue v. Okadigbo (1973) 4 S.C. 113 at 117 and Woluchem v. Gudi (1981) 5 S. C. 291, paragraph 15.

Apart from the alleged cheques admitted in evidence as Exhibits 1 & 1A, respondents averred that it would rely on its other dishonoured cheques dated 2/4/93 drawn in honour of one said HENOUND valued at N40,000.00. It was further averred that the ‘said cheque would be relied upon at the trial of this suit. No such cheque was produced nor tendered in evidence. Of course, the trial judge, in the circumstances, was obliged to invoke section 149(d) of the Evidence Act by respondent’s failure to produce the said cheque that he pleaded. See Elias v. Omo-Bare (1982) 1 All NLR (Pt. 1) Vol. p.70. Again, that material averment of paragraph 15 must be deemed abandoned.

It was unfortunate that with regard to paragraph 16, the learned trial judge had misconceived the averment and therefore was of the view that oral evidence could be given because the documents pleaded were in the custody of the appellant and had been given notice to produce them whereas the learned trial judge failed to appreciate that what the respondent pleaded was that it would rely on mere copies of the letters and not oral evidence. In any event, paragraph 16 of the Further Amended Statement of Claim was denied at paragraph 16 of the Further Amended Statement of Defence, the result is that before the notice to produce could avail the respondent, it must first establish that the documents are in the custody of the appellant. No such proof was elicited by the respondent. In the result, it was erroneous for the trial court to presume in favour of the respondent that the documents were in the custody of the appellant. See Odionye v. Ayansi & Brunton Ltd. & Ors (1963) 2 All NLR 44 at P. 47, 15 Halsbury Laws of England (3rd ed) 361 – 362 and Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383 at 394.

Again, in respect of paragraph 19, it was averred that respondent rely on a certified true copy of the criminal charge at Calabar Chief Magistrates Court but failed to produce any such charge yet the learned trial judge in reference to this paragraph took the view that evidence was given and not contradicted. It was unfortunate that the learned trial judge completely overlooked the provisions of section 131 of the Evidence Act which precludes oral evidence of the judicial proceedings. The irresistible conclusion is that having failed to adduce proper evidence of the pleaded facts the same is certainly abandoned. See Adisa v. Saibu (1977) 2 S.C. 89 at 119. Finally, even though the respondent pleaded in paragraph 20 that it made repeated demands for the statements drawn on the said account, yet there is complete absence of proof of demand. Again, it is clearly a case of abandonment of the pleaded facts because where pleaded facts are not backed up by evidence, the pleading does not avail that party seeking to reply on it.

It is therefore clear that in paragraphs 14, 15, 16, 19 and 20, so also in paragraphs 21 and 22 of the Further Amended Statement of Claim, respondent specifically pleaded facts and yet no evidence was produced in proof thereof, nor were the specific documents pleaded produced. Issue No.4 is also therefore resolved against the respondent.

The 5th appellant’s issue, it is submitted on behalf of the appellant, is contrary to the established principle of pleading in that the respondent’s claim is contrary to the evidence led. Thus the gross total of the figures set out under paragraph 7 of the Further Amended Statement of Claim i. e., N212,500.00 is not in consonance with the figure of N212,700.00 that was actually awarded by the trial court. It is counsel’s submission that this Court cannot correct the awarded sum without altering the pleading and evidence led on this point. Counsel calls in aid the Supreme Court decision in Ugochukwu v. C.C.B Ltd. (1996) 6 NWLR (Pt. 456) 521. at p. 539. Counsel further submits that the claim being in the form of special damages the same must be strictly proved otherwise the award will not be justified and relies on the authority of Sommer v. F.H.A. (1992) 1 NWLR (Pt. 219) 548 at 561.

In his reply, the respondent’s learned counsel submits that the whole complaint is based on arithmetical error because whereas the total amount claimed under the head of claim was N212.500.00 and “the amount erroneously claimed on the part of the lawyers and the judge was stated as N212,700.00”; in other words, a difference of N200.00. Counsel submits that the error was a “slip” which invariably both the trial and appellate courts have always corrected with little fan fare. Counsel calls in aid the following authorities, to wit, Min. of Lagos Mines & Power & Anor v. Akin-Olugbade & Ors (1974) NSCC Vol. 9 p. 489; Ogunsola v. NICON (1996) 1 NWLR (Pt. 423) 126 and U.B.A v. TAAN (1993) 4 NWLR (Pt. 287) 368 at 370-371.

It is now beyond question that both the court of trial and appellate courts enjoy the power of correction or modification of an order or orders contained in a judgment on the ground that the order as drawn up does not in fact represent what the court had intended to state. In other words, by this power, a court is afforded the opportunity to correct a mistake arising from clerical error of accidental slip or omission. This is now popularly referred to as the “slip-rule.” See Asiyanbi & Ors v Adeniji (1967) 1 All NLR 82. Such correction of clerical error or slip or omission should not be invoked and used as a subterfuge for reviewing or rehearing of a case. Thus in Min. of Lagos, Mines & Power & anor v. Akin-Olughade & Ors (1974) NSCC Vol. 9 p. 489, where the applicant under the guise of the slip-rule sought a review of the judgment of the Supreme Court but that application was refused and dismissed. What this boils down to is that once a court has decided an issue which forms part of the court’s judgment and an order in respect thereof has been effectively drawn, the court is powerless to reopen the issue and change its earlier decision. See also Thynne v. Thynne (1955) 3 All E. R. 129.

Now it is important to bear in mind that any attempt to alter the judgment of the court by substituting something different from the pleadings or from the evidence may be difficult to explain away. The foremost obstacle is that any attempt to tailor the judgment of the court to correspond with the pleadings, say, by adding or subtracting to the judgment will be resisted by the adversary party on the ground that the court lacks the power to present a case different from what the party has pleaded or the evidence it has led at the trial which formed the basis of the judgment. Nevertheless, in support of the court’s power to invoke the slip-rule learned respondent’s counsel cited and relied on UBA v. TAAN (1993) 4 NWLR (Pt. 287) 368, where Tobi J.C.A., while reviewing the authorities collated on the question of the slip-rule, stated by way of general proposition as follows at p. 371.

“(d) Where accidental omission or arithmetical errors are committed on the face of the record.”

This statement is not as simple as it may appear. My understanding of it, and this is the only way it may be in consonance with the authorities, is that if by way of clerical error a judge who had wanted to write N55,000 mistakenly writes N50,000, omitting N5,000, the mistake may clearly be corrected under the slip-rule and substituted N55,000 for N50,000. But it is however not the same thing for the court to substitute N55,000 as attested to by PW1 with N50,000 being the figure stated by PW1 in his pleadings. The simple error here is that the evidence does not correspond with the pleading and the plaintiff’s case must fail. See Emegokwue v. Okadigbo (supra), In the instant appeal, the total amount claimed under paragraph 7 of the Further Amended Statement of Claim is N212,500 whereas in their evidence, they testified to N212,700. Clearly, that is another way of saying that the respondent failed to prove to claim on balance of probabilities and the claim therefore failed and the court lacks the power to tinker with the difference in the two figures. Inspite of the difference between the pleaded figure and the figure attested to in evidence the learned trial judge in his judgment awarded the amount pleaded under paragraph 7 of the Further Amended Statement of Claim. This is wrong.

Further more since the amount claimed in the aforesaid paragraph 7 was characterized as special damages, the Law enjoins the respondent to prove same strictly. This he has failed to do.

In the result, the 5th issue is resolved in favour of the appellant.

The sixth issue questions the interest rate awarded by the learned trial judge on the alleged sum of money borrowed consequent to the loss resulting from the fraudulently raised cheques Exhibits 1 and 1A. Learned appellant counsel submits that the amount claimed as interest being special damages must be strictly proved and must be shown to arise from a specific law and relies on some authorities. It is also his further submission that the interest rate of 15% pleaded by the respondent was not sustainable because its basis was not only unknown, the same run counter to the 60% and 54% rates of interest stated in evidence by PW1. In his further submission, counsel contended that fluctuating rate of interest was not a matter the trial court could take judicial notice under section 74(1) of the Evidence Act. The Learned trial judge finally opined that the burden was on the defence (i.e., the appellant) to use the published rate of interest to challenge the evidence of the respondent.

Many things are wrong with the treatment of the issue on interest rate by the learned trial judge I cannot restrain myself from commenting on some aspects of the serious errors committed by him on this matter. It is surprising that despite the assistance of learned appellant’s counsel to the learned trial judge in guiding him with relevant legal authorities, his lordship completely overlooked them. This was unfortunate. First, I am clearly of opinion that a claim based on any particular rate of interest is a matter that sounds in special damages which must not only be expressly pleaded but the evidence in respect thereof must be strictly proved. See Himma Merchants Ltd v. Aliyu (1994) 5 NWLR (Pt. 347) 667 and Sabbach Bros v. BWA Ltd. (1966) 1 All NLR 240; NSCC Vol. 4 (1965-1966) 276.

As if this was not enough, faced with divergent evidence of interest rates at 60% and 54%, on the one hand, and 15% as expressly pleaded in the respondent’s Further Amended Statement of Claim, on the other, the learned trial Judge unfortunately failed to appreciate that these conflicts were incapable of being resolved at that stage of the trial and therefore was obliged to dismiss that arm of the plaintiffs/respondent’s claim without further ado. That approach is supportable by a chain of authorities which has long established that a claim is insupportable where the evidence led is at variance with the pleadings. See Emegokwue v. Okadigho (supra) and F.H.A. v. Sommer (1986) 1 NWLR (Pt. 17) 533. The benevolent reason for this principle is also backed up by yet another principle that it is not for the court to re-write the parties’ pleadings for them. See Ogida v. Oliha (1986) 1 NWLR (Pt. 19) 786, Ajayi v. Texaco (Nig) Ltd. & Ors (1987) 9-10 SCNJ 1 (1987) 3 NWLR (Pt.62) 577 and Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 583.  In any event, the learned trial Judge ought to have equally appreciated that where evidence is not called to support a party’s pleadings, the same are deemed abandoned. See Idahosa v. Omnsaye 4 FSC 166 at 171 and National Investment & Properties Co. Ltd. v. Thompson Organization Ltd. (1969) 1 NMLR 99.

Finally, I am clearly of the view that the learned trial Judge was in deep error to have opined that the onus was on the defendant/appellant to call in aid the official published rate of evidence of the plaintiff/respondent. With respect, that will be doing irreparable violence to the established legal maxim that he who asserts must prove. It has never been the law that where the assertor or fails to prove his positive statement or meet the rules of pleading that the adversary is placed under a duty to adduce rebuttal evidence. On the contrary, where a plaintiff fails to lead evidence to establish his claim or assertion there is no legal duty whatsoever on the defence to lead any evidence. After all, the point raised with regard to the rate of interest is not in respect of the appellant’s lending but the rate of interest the respondent borrowed from the Finance Houses. In such a situation, the fact of the borrowing rate of interest will be peculiarly known to the borrower and in the circumstances it would be invidious for the defence to speculate on the rate of interest at which the plaintiff privately borrowed from the Finance Houses. Both common sense and all known rules of evidence frown on shifting the burden of proof from an assertor.

It remains to commend Mr. Richard Ebri, learned respondent’s counsel who courageously declined to support the glaring misconception of law displayed by the trial Judge. This is legal practice per excellence which should must be encouraged .

For all I have said and the concession made by learned respondent’s counsel on this issue, the fifth issue is also resolved in favour of the appellant.

This brings us to the last issue, i.e., the seventh issue. The crux of the complaint herein is that the learned trial Judge deeply erred by making a lump sum grant of N3.5M as general damages for the tort of negligence, for loss of reputation and for breach of contract, on the ground that it is bad for misjoinder and duplicity. Counsel submits that respondent if at all he was entitled to damages for breach of contract would be entitled to the loss of his bargain or the market value of the benefit of which he had been deprived of due to the breach of the contract. Counsel calls in aid the authorities of P.Z. & Co. Ltd. v. Ogedenghe (1972) 1 All NLR 202 at p.206 and Dumez (Nig) Ltd. v. Ogboli (1972) 1 All NLR 244 and also McGregor on Damages (11th ed) (1980) Chap. 2 p. 21. It is his further submission that in respect of claim in tort, general damages will be determined by the Court. While in loss of reputation this loss must be proved as an injury before damages can follow. Counsel further contends that the claim on loss of reputation ought to fail because paragraph 15 of the Further Amended Statement of Claim on which it was based was either abandoned or not proved by production of the pleaded documentary evidence. For lumping the claims together counsel places reliance on Amakiri & Ors. v. Newington (1951-1953) 20 NLR 13. In any event, if the award is based on Exhibits 1 and 1A, its quantum of award would be sufficiently met by the reversal of the alleged wrong or fraudulent debit as a further award in excess of this would, amount to double compensation. That is bad in law. Counsel further submits that if the breach is based on failure to deliver additional statements of account or to return the paid cheques, no contractual obligation to do so was proved.

The respondent’s reaction to appellant’s issue No.7 is set out in respondent’s issue No.6, at pp.10-13 of Respondent’s Brief. It is the submission of respondent’s learned counsel that the lumping together in one sum N5m for the various misdeeds of the appellant as well as his breach of contract set out in paragraph 23(3) of the Further Amended Statement of Claim is good in law. To counsel what the law seeks to achieve in both the injuries inflicted on the respondent once he succeeds in proving that he has been wronged. To this end, counsel itemized the five heads under which the claim for general damages has been conceived as follows:

“1. Fraudulent and wrongful withdrawals from her account, in breach of contract between her and the Appellant.

2. The implied retention of the monies so withdrawn, thereby denying the Respondent productive use of the same from the date of each such wrongful withdrawal, until indeed now.
3. Negligence of the Appellant in having wrongful so compromised the Respondent’s monies.
4. Denial by the Appellant of the Respondent’s right to access and operation of her own account owing to the failure or refusal to render statements of accounts under contract, or as demanded, and
5. All unparticularizable but foreseeable losses suffered by the Respondent on account of the Appellant’ s injuries on the Respondent, in Contract and Tort.

Reliance is placed on the Supreme Court decision on Akinfosile v. Mobil Oil Nigeria Ltd (1960) NSCC Vol. 376 where that court tersely cautioned about undue categorization of damages in breach of contract in terms of special and general damages. Counsel also cites and relies on Balogu v. N.B.N. Ltd. (1978) NSCC Vol. iii p. 135 that it is open to the court, but within reason, to award any sum by way of general damages it considers proper for the breach of contract although there has been no proof of actual loss. Finally, relying on Shell Pet. Dev. Co. v. Tiebo VII (1996) 4 NWLR (Pt. 445) 647, counsel submits that it is no barrier in assessment of general damages that damages are difficult to assess and for that reason deprives the plaintiff of his remedy in damages. He also relies on Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124, a case referred to in Tiebo VII case.

It is unquestionably incontestable that all things being equal, the real contest in this appeal is whether the amount of N3.5m awarded by way of general damages is sustainable having regard to the facts of the case, the evidence led at the trial and the law applicable in the circumstances of the case. The main hurdle in the plaintiffs/respondent’s case is whether, in all the circumstances of the present case it was legally justifiable for the learned trial Judge to make a lump award by way of general damages for claims that sounded in contract and tort. Counsel for the parties as would be expected, hold two divergent views. General damages unlike special damages do not require strick proof but the amount awardable must be within reasons and the court would be guided by all the circumstances of the case.

Now if one assumes that the breach of contract is founded on the payments made on Exhibit 1 and 1A, the damages that would have resulted therefrom to the respondent would be the reversal of the erroneous debit on respondent’s account. Any sum payable in excess of the value of those cheques would be unjustifiable in law. In other words, the respondent’s loss must be the damages which will flow as natural or probable consequence of the breach alleged and it makes no difference whether it is styled special or general damages. See Hadley v. Baxendale (1854) 9 Exch 341 and Akinfosile v. Mobil Oil Nig. Ltd. (1960) (supra). This approach will make the determination of damages awardable by the court in the earlier itemized five heads for damages as identified by respondent’s counsel in the judgment easy. But it will be purely speculative and a guess-work for a court to pretend to award a lump sum for some breaches of peace of contract as wall as for injuries allegedly found on negligence when there is the possibility that a particular head of breach of contract may be established and therefore damages in respect thereof ought to be awarded whereas the breach in respect of another aspect of the contract may not have been proved, and obviously would not attract damages. It may then be asked, how will the damages in respect of the two situations be severed in order to make the award of damages where possible on the one hand, and refuse to award damages if the circumstances do not permit, on the other hand? Learned appellant’s counsel relied on Amakiri v. Newingron (supra) to attack the lump sum award. I must say straightaway that this case is not a direct authority on the point under references.

The issue in Amakiri case was that several plaintiffs made a single lump sum claim for an amount of damages for assault and false imprisonment committed by the defendant on separate occasions. It was held. inter alia, that there being two or more occasions of alleged false imprisonment, the amount claimed in respect of each must be stated on the writ so that damages could be assessed for anyone on which a plaintiff succeeded. It was also held that each of the plaintiffs had a separate ground of action depending on the damage he suffered and must bring a separate action.

It seems clear to me that in the appeal on hand the damages that may be founded for the breach or breaches of contract constitute a separate ground of action from the tortious act of negligence alleged in the suit; the one may succeed while the other may fail. By analogy, the damages claimed in respect of the claim that sounds in contract must be different and separated from that sounds in tort. This has not been done in this case. Rather respondent had in one action made a claim for breaches in contract and for the tort of negligence and followed it up by claiming one lump sum for the breaches in contract and act of negligence. This is bad in law yet the trial court made a lump sum award of N3.5m. The two separate heads of action, tort and contract, should be considered separately. i.e., in two o separate actions so that each cause of action will, where established. succeed on the quantum of damages the court may assess and award otherwise each action may fail and be refused. It is clearly complicated for a party to claim in tort and breach of contract in one action and the court without separating the two causes of action. How then can the damages in the two causes of action sounding in tort and contract be meaningfully assessed. I am clearly of opinion that the writ as filed, so also the Further Amended Statement of Claim which superseded the writ is bad in law.

If the case rested there I would have been minded ordinarily to non-suit the respondent. But the matter did not stop there. I have taken the pains to peruse the record of appeal and given detailed examination and consideration of the various issues raised in the appeal, and on cool consideration of the totality of these issues which were, except in respect of one issue, overwhelmingly resolved against the F respondent. I have reached the conclusion that this is a case that deserves to be dismissed and not one to be non-suited. I have also formed the opinion that the seventh issue has merit and the same is resolved in favour of the appellant.

Having thus found overwhelmingly in favour of the appellant I am also clearly of opinion that plaintiffs/respondent’s action, as earlier stated, is bereft of substance and the same deserves to fail in its entirely. In the result, this appeal succeeds and is allowed; the judgment of the lower court is hereby set aside. I also assess and award N2,000.00 cost to the appellant.

Other Citations: (1997)LCN/0333(CA)