African Continental Bank Plc V. Victor Ndoma-egba (2000)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
This appeal emanated from Suit No. C/98/93 commenced at the Calabar High Court but concluded at the Ogoja High Court to which the trial Judge was transferred. It was commenced by the respondent as plaintiff suing on behalf of Ndoma-Egba, Ebri and Company which is a firm of solicitors. The partners were at all material times Chief Victor Ndoma-Egba, the senior partner and Richard D. Ebri (now deceased) as a partner. The suit was against the appellant Bank with respect to its Calabar Branch in which the respondent opened and operated a Current Account No.05756. Upon the order of the Court, parties filed their pleadings terminating in the respondents’ amended statement of claim and the appellant’s amended statement of defence. As articulated in paragraph 18 of the amended statement of claim, the terms of the claim read as follows:-
“18. Whereof, the plaintiff claims from the defendant:-
i) The sum of N331,000.00 unlawfully withdrawn from the plaintiff’s Current Account.
ii) Interest on the principal sum calculated at the rate of 52% from the date of withdrawal until judgment.
iii) N5 Million (Five Million Naira) being general damages for breach of contract, negligence and loss of reputation”.
In the ensuing trial, the respondent and his partner gave evidence while the appellant’s case was presented by one witness.
The case of the respondent is that the partnership firm of Ndoma-Egba, Ebri and Company opened a clients’ Current Account No.05756 at appellant’s Calabar Branch with Victor Ndoma-Egba (P.W.1) and Richard D. Ebri (P.W.2) as joint signatories to the account. At the opening of the said account, a mandate card Exhibit 1, was completed on which the specimen signatures of the partners were written. It was a joint account and according to the mandate, cheques drawn on the account must be signed by the two partners. The partnership later paid into the account the sum of N500,000.00 (Five Hundred Thousand Naira). It then issued on that account a cheque dated 12/3/93 for the sum of N375,000.00 (Three Hundred and Seventy-Five Thousand Naira) to its, client, the Reynolds Construction Company Limited (R.C.C.) through a sister company Nigerian Water Resources Development (N.W.R.D.) On 30th March, 1993, P.W.1 called on the appellant bank to confirm payment of the said cheque for N375,000.00 but was informed that the cheque had not come in for payment but that if it did, it could not be honoured for the reason of insufficient funds. The cheque was subsequently returned to the respondents as unpaid vide letter dated 3/4/93 Exhihit 14.
It is the respondents’ case that, upon further enquiry as to why the account was not in funds, P.W.1 discovered from the relevant ledger cards, three strange debits for various sums of money, viz: N225,000.00 (made on 1/3/93), N31,000.00 (made on 1/3/93) and N75,000.00 (made on 12/2/93) all totalling N331,000.00. The Appellants’ Branch Manager at the time, one Mr. I. S. Omenye brought out three cheques Exhibits 2, 3 and 4 upon which the various sums were withdrawn and on examination P.W.1 confirmed that -they were all forged with regard to the signatures of P.W.1 although-the signature of his partner P.W.2 thereon were regular and genuine. It was admitted that a letter dated 31/3/93 (Exhibit 16) was written by PW2. It was addressed to the Appellant Bank with the cheque Exhibit 2 request to issue a Bank draft for the amount stated thereon in favour of the Federal Super Phosphate Fertilizer Company Limited, Kaduna. Furthermore, it is the Respondent’s case that by letters respectively dated 31/3/93 (Exhibit 5) and 6/4/93 (Exhibit 6) the P.W.1 and their Counsel, Kanu G. Agabi and Associates asked the Appellant Bank to credit the Firm with the amounts fraudulently withdrawn but in response to those letters, the Appellant’s Solicitor by letter dated 8/4/93 (Exhibits 7 and 8), denied liability and threatened an action for defamation arguing that, the cheques in question were presented for payment by an Accountant in the employment of the partnership. The Respondent reported the matter to the police, engaged Auditors to audit the account but this they could do not as the appellant did not co- operate with them.
On the part of the Appellant, it contended that none of the cheques Exhibits 2, 3 and 4 was forged as alleged by the Respondent and further that even if the signature of P.W.1 on those cheques were forged as contended by the Respondent, the admission by the partnership that the signature of P.W.2 on them was valid and regular raises an estoppel against the partners, having regard to Exhibit. 16. Upon the foregoing facts, the learned Judge Okoi I. Itam J. entered judgment for the Respondent in the following terms:.
(a) “N331,000.00 unlawfully withdrawn from its current account No.05756 as a result of the defendant’s negligence.
(b) The plaintiff is however entitled to interests for its funds tied up which are assessed and fixed at the conservative rate at the per centum per annum with effect from 1st March, 1993.
(c) It is further directed that the Defendant shall also pay to the plaintiff interest upon the calculated judgment debt/interest herein at the rate of 8 per centum reckoned from tomorrow 23/9/99.
(d) I hereby award general damages in favour of the Plaintiff against the Defendants in the sum of N500,000.00.”
The Appellant Bank was not satisfied with the judgment, hence it promptly filed the instant appeal against it. The notice of appeal has a total of eleven grounds of appeal. Briefs of Judgments were filed and exchanged by Counsel who adopted same at the hearing of the appeal. In the Appellant’s brief, the following five issues were identified for the determination of the appeal:-
(i) Whether upon a calm view of the pleadings and evidence, the plaintiff proved that any of Exhihits 2, 3, and 4 was forged cheque?.
(ii) Whether the plaintiff and the partner thereof, are estopped from contending that any of Exhibits 2, 3 and 4 are forged, the partners having admitted that Exhibit 16 was written on behalf of the partnership and in furtherance of the partnership’s business and that the signature of one of them i.e. Richard D. Ebri was regular and valid on each of Exhibits 2, 3, 4, and 16?.
(iii) Whether upon a calm view of the pleadings and evidence, the learned trial Judge at the Court below was right when he held that the Defendant wrongfully dishonoured plaintiff’s cheque Exhibit 14?.
(iv) Whether the award of one lump sum to the Plaintiff as general damages for breach of contract, negligence and loss of reputation is sustainable in law?.
(v) Whether the award of interest to the plaintiff at 10 per cent per annum with effect from 1/3/93 is legally sustainable having regard to the pleadings and evidence?.
On his part, the Respondent formulated three issues viz:
- Does any estoppel arise from Exhibit 16 when Exhibit 1 is a joint mandate to the appellant and Exhibits 2, 3 and 4 tainted with illegality?
- Whether upon a calm view of the pleadings and evidence, the plaintiff was bound to call expert witness to prove that Exhibits 2, 3, and 4 were forged?
- In view of the preponderance of evidence, both oral and documentary in support of the plaintiff’s claims, whether the reasons adduced by the learned trial Judge for granting all the claims of the respondent are justified?.
After a careful comparison of the above two sets of issues, I am satisfied that those issues formulated in the appellant’s brief are germane to the grounds of appeal and adequately embrace all the issues in the Respondent’s brief. Accordingly, I adopt the appellant’s issues in the consideration of this appeal.
With respect to appellant’s issue No.1 which covers Respondent’s issue No.2, it was submitted in the Appellant’s brief settled by H. N. Udochukwu Esq., S.A.N., that upon a calm view of the pleadings and evidence, the Respondent did not establish that any of Exhibits 2, 3 and 4 was a forged cheque. Reference was made to paragraph 10(ii) of the Amended Statement of Claim where it was averred that the signatures purported to be those of the plaintiff and his partner were in fact fraudulent. This statement it was contended was contradicted by the oral evidence of P.W.1 and P.W.2 who admitted that it was only the signature of P.W.1 that was forged. It was therefore, submitted that since the oral evidence of P.W.1 and P.W.2 was at variance with the pleadings, both the pleadings and oral evidence must be ignored. Reference was also made to paragraph 9 of the Amended Statement of Claim where it was pleaded that the report of a hand writing expert Ref. Dxx/21/93 dated 4th day of May, 1993 and the Police report on the fraud would be relied upon to prove the forgery of Exhibits 2, 3 and 4. The Respondent having failed to tender those documents as pleaded, he was precluded from relying on oral evidence of facts contained in the written documents vide the case of Elias v. Omo-bare (1982) (Pt.1) Vol. 1 All NLR 70; A.C.B. Plc v. Haston (Nig.) Ltd. (1997) 8 NWLR (Pt.515) 110 at 131. It was further contended that forgery is a crime which ought to be proved beyond reasonable doubt and the respondent having failed to tender the documentary evidence he pleaded, to prove the forgery, he could not rely on the ipse dixit of the partners nor for the court to fall back on section 108 of the Evidence Act to compare the disputed signatures on Exhibits 2, 3 and 4 with the admitted signatures on Exhibit 1. Furthermore and on the authority of Ezeonwu v. Onyechi (1996) 3 NWLR (Pt.438) 499 at 528, it was contended that mere dissimilarity of signatures is neither conclusive proof nor a rational basis to ground a finding that such signatures were not in fact made. In response to the above submissions, the Respondent in his brief settled by himself submitted that Exhibits 2,3 and 4 were established to be forged cheques and that paragraph 10 of the amended statement of claim was not contradicted by the testimonies of P.W.1 and P.W.2, counsel contended that the procedure adopted by the Court below in comparing the admitted signature in Exhibit 1 with those disputed in Exhibits 2, 3. and 4 was in conformity with the provision of section 108(1) of the Evidence Act.
The main controversy on this issue relates to the alleged forgery of the cheques Exhibits 2, 3 and 4. The Respondent alleged they were forged but the Appellant stated the contrary. Forgery is a criminal offence. The onus is on the party who alleged to establish the forgery and this he must do beyond reasonable doubt. Where a party denies making a document which he is alleged to have executed or signed or thumb-printed, such denial is tantamount to saying that the document is a forgery or a fake. In such a situation, the burden of proof of the forgery rests on the party who alleges since forgery is a crime, the onus of proof on him who alleges is proof beyond reasonable doubt; Ikoku v. Oli (1962) 1 SCNLR 307; Adelaja v. Alade (1999) 6 NWLR (Pt.608) 544 at 557 to 558. In the instant case the respondent in paragraph 9 of the amended statement of claim averred thus:
“…At the trial of this case the plaintiff shall also rely on the Report of an hand-writing expert. Reference No. Dxx/21/93 dated 4th May, 1993 and the Police report on the fraud”.
At the trial, no such document as pleaded above was tendered in evidence and no evidence was led by the Respondent in proof of the alleged fraud beyond mere ipse dixit of P.W.1 and P.W.2. This in my humble view does not constitute proof beyond reasonable doubt in the face of the denial by the appellant that the cheques in question were forged. In the amended statement of defence, it was pleaded in paragraph 15 thereof as follows:
“…The defence will at the trial object to the tendering of the report of an handwriting expert and the police reports”.
Commenting on the above comment, the Court below in page 165 of the record observed:
“But the Defendant on paragraphs of the Amended Statement of Defence stated that it will object to the tendering of the two reports at the trial. I take it that the Defendant did not want the said reports to be tendered at all. I further take it that it is not open to them to approbate and reprobate”.
In support of the above findings, learned Counsel for the Respondent has submitted in his brief, that it was wrong for the defence having pleaded in paragraph 15 of the defence as reproduced above to turn around to contend that for the Respondent to prove forgery, the reports in question must be tendered. This, Counsel submitted amounts to approbating and reprobating. In my view, that is no justification for the failure by the respondent to prove his case as required by law. Even if the appellant had not raised the question about the non-tendering of those reports, it is incumbent on the Court to raise it and invoke the provisions of section 149(a) of the Evidence Act and hold that had that documents in question been produced, they would have been adverse to the respondent. In reaching the conclusion that the disputed signatures of P.W.1 on the cheques in question were forged, the Court below embarked upon a comparison of those signatures with the P.W.1’s admitted signature on Exhibit 1 and came to the conclusion that, because of the dissimilarities on the characters of the signature in Exhibit 1 on the one hand and Exhibits 2, 3 and 4 on the other hand, that the latter documents were forged.
It cannot be disputed that a Judge has the power to make comparison of signatures or writing independent of an expert evidence. But he has some limitations in the matter beyond which he cannot go. Where the comparison is not very obvious but involves matters which are in the competence of an expert, it will not be proper for the Judge to constitute himself an expert and proceed to form his own opinion in a handwriting in issue: Udukeson Ent. Ltd. v. Okafor FCA/B/103/78 of 13/8/79. In the instant case, the learned trial Judge on p.164 et seq commented as follows:-
“3. I have also compared by way of examination the signature on Exhibit 1 on one hand, and those on Exhibits 2, 3 and 4 on the other hand, and I clearly find the following obvious and material differences, namely:-
(a) The general impression of that on Exhibit 1 is that of a normal, free signature whilst that in Exhibit 2, 3 and 4 are those of a copied or printed effort.
(b) The writing in one gives the impression of a fast smooth and minute one whilst the others are that of a labourious painstaking, calculated, premeditated one and are obviously larger.
(c) In the 1st the stroke connecting ‘N’ and ‘d’ is slanting and obvious. In the others, it is horizontal or absent entirely.
(d) In the 1st the long line or stroke under the signature is straight and clearly extends beyond the last alphabet (a),
(e) In the 1st, the last word ‘a’ is itself long and extensive. In the others, it has no line to it and ends sharply and abruptly with the ‘a’.
(f) In the 1st, the ‘E’ of Egba appears like a big ‘q’ and the preceding ‘a’ connects it with a line at the upper side. In the others, the connection is at the bottomside and it looks like an ‘F’ instead or ‘q’.
(g) In the first, the ‘g’ of Egba below the long line is preceded by 2 dots. In the others, it is between the 2 dots.
(h) In the 1st, the character of the alphabets are smallest, sedate, smooth and uniform. In the others, they are abrupt, noisy, obvious, loud and clear”.
From the above extract, it cannot be gainsaid that the trial Judge had not assumed the role of an expert in determining whether the disputed signature in question was forged. This, he is not permitted to do, he not being a witness nor a handwriting expert.
In the case of George Obi Ikenye & Anor. v. Akpala Ofune (1986) 1 Q.L.R.N. 209; (1985) 2 NWLR (Pt.5) 1 it was held that it is not the function of the trial Judge by his own exercise and ingenuity to supply evidence or carry out the mathematics of arriving at an answer which only evidence tested by cross-examination could supply.
The Supreme Court in that in case of Ezeonwu v. Onyechi at 528 of the report observed:-
“I accept the Plaintiffs contention that mere dissimilarity in signatures is neither conclusive evidence nor a rational basis to ground a finding that such signatures were in fact not made by one and the same person particularly when the authorship of such signature is accepted by one and the same person. The Court of Appeal was therefore in gross error by affirming the speculative and unsubstantiated opinion of the trial Court that because of the alleged dissimilarity in the signatures, the plaintiff was not the maker of the signature on Exhibit FOE 15”.
In the same vein, it seems to me that in the instant case, neither the opinion of the court below nor the mere ipse dixit denial of P.W.1 and P.W.2 is sufficient to establish beyond reasonable doubt that the P.W.1’s signatures on Exhibits 2, 3 and 4 were forged. I will therefore resolve this issue in favour of the Appellant.
I will now advert to appellant’s issue No.2 which agrees with Respondent’s issue No.1 which relates to the question of estoppel. The contention of the Appellant is that, assuming but without conceding that the signature of P.W.1 on Exhibits 2, 3 and 4 was in fact not written by him, P.W.1 and P.W.2 that is the partnership are estopped from contending that any of the said exhibits are forged, the partners having admitted that Exhibit 16 was written on behalf of the partnership and in furtherance of the partnership’s business and that the signature of one of them i.e. Richard D. Ebri (P.W.2) was regular and valid on each of Exhibits 2, 3 and 4. In support of the contention, the learned Senior Advocate cited sections 5, 10 and 15 of the Partnership Act, 1890 – English Statute of General Application as at 1900 applicable in Cross River and also Section 151 of the Evidence Act.
In reply, learned Counsel to the Respondent submitted in his brief of argument that Exhibit 16 cannot operate as estoppel against the respondent so as to prevent him from contending that Exhibits 2, 3 & 4 were forged having regard to Exhibit 1 by which the appellant is bound to honour only cheques duly and jointly signed by the partners. Counsel craved in aid the case of Callia v. Cyprus Finance Corporation (London) Ltd. (1982) 2 U.B. 759. It was argued that the effect of Exhibit 16 operating as an estoppel will be to override or circumvent positive and conventional rules of banking in view of the joint mandate Exhibit 1. Reference was made to the Modem Nigeria Law of Evidence by Fidelis Nwadialo, S.A.N. at 62 and the cases of Onamade v. A.C.B. Ltd. (1997) 1 NWLR (Pt.480) 194; Attorney-General of Bendel State v. Attorney-General of the Federation & 22 others (1981) 10 SC 1 at 40 and 41; (1982) 3 NCLR I. Learned Counsel argued that the provisions or sections 5, 10 and 15 of the Partnership Act 1890 cited by the appellant do not apply in the instant case because the D.W.1, the sole witness to the Appellant denied in his evidence that the Respondent’s account was a partnership account.
According to banking practice, a bank paying a forged cheque is not entitled, prima facie, to debit the customer’s account. A forged drawing is inoperative as indeed is an unauthorised drawing, and the position is the same as if no mandate had ever been issued; it is accordingly quite immaterial that the forgery was so skilful that it could not reasonably have been detected. The exceptions to this rule result from estoppel or from ratification. See Law of Banking by Lord Chorley, Sixth Edition, page 95. These principles are exemplified in the case of Bank of the North v. Lake Chad Research Institute (1995) 6 NWLR (Pt.47) 607 at 615 cited by the Respondent where it was held:-
“A document in cheque form to which the customer’s name as drawer is forged or placed thereon without authority is not a cheque but a mere nullity and unless a banker can establish adoption or estoppel, he cannot debit the customer with any payment made on it”.
In the instant case, controversy centres not on ratification but on estoppel. It is necessary to review the evidence to see if a plea of estoppel avails the Appellant. Exhibit 16 is the letter written by P.W.2 on the letter-head of the partnership. It was an application for a bank draft addressed to the appellant Bank and bears the Partnership stamp of the firm. It reads thus:-
NDOMA-EGBA, EBRI & CO
BARRISTERS-AT-LAW & SOLICITORS
31st March, 1993
The Manager
African Continental Bank Plc.,
Calabar Road,
Calabar.
Dear Sir,
Re: Bank Draft
Kindly issue a Bank-draft of N225.000.00 (Two Hundred and Twenty-Five Thousand Naira) only in favour of Federal Super Phosphate Fertilizer Company Limited, Kaduna.
Enclosed herewith is (sic) our Bank cheque No. 388684 in your favour.
Treat as urgent.
Yours faithfully,
for: Ndoma-Egba, Ebri & Co.
Sgd: Richard D. Ebri.
(Partner).
Testifying with respect to the above letter Exhibit 16, D.W.1 at p.135 of the record said:-
“The withdrawal of N225,000.00 was authorised and therefore not fraudulent. The amount was used in settling a Fertilizer Company in Kaduna on behalf of the plaintiff through a draft he issued. The instruction was given by P.W.2 vide Exhibit 16. Exhibit 2 is the cheque referred to in Exhibit 16. The cheque shown to me is the original of Exhibit 2. Tendered without objection as Exhibit 17. The plaintiff or P.W.2 has never complained that the instruction on Exhibit 16 was not complied with. We issued the draft sought in Exhibit 16”.
Referring to the above Exhibit 16, P.W.2 said “Yes, I said I signed Exhibit 16. I am aware that the Defendant complied with Exhibit 16” (Record p.129 lines 12 13).
Referring to the same Exhibit 16, P.W.2 repeated:-
“I signed Exhibit 16. I am aware that the Defendant complied with Exhibit 16”.
(Record p.129 lines 12 – 13)
At p. 129 lien 16, the witness further testified:
“I am convinced that P.W.1’s signature in Exhibit 1 is not the same as that in Exhibits 2, 3 and 4.”
Inspite of the conviction, he wrote Exhibit 16 and attached Exhibit 2 to it and directed the Appellant to act on it. He also signed Exhibits 3 and 4 with the knowledge that his partner’s signature thereon was different from that in the specimen signature card. In those circumstances, it seem patent to me that by his conduct, he induced the appellant Bank to treat Exhibits 2, 3,4 and 16 as genuine. The Respondent has contended that the provisions of the Partnership Act 1890 are inapplicable in the circumstances of this case because the account in question is not a partnership account. However, in his evidence under cross-examination at p.126 line 27 et seq, he said:-
“Account No.05756 was opened as a partnership account. Yes, the partners are himself and Richard Ebri. It was opened by the partnership to serve as a client’s account. The signature of Mr. Ebri on Exhibit 2 is his genuine signature.”
And in paragraph 1 of the Amended Statement of Claim at p.27 of the record line 10 et seq, it was pleaded thus:-
- The plaintiff is a Legal Practitioner a Senior Partner in the Firm of Ndoma-Egba, Ebri & Company, a Law Firm registered under the Company and Allied Matters Decree with its registered office at 101 Marian Road, Calabar, Cross River State of Nigeria.”
In the face of the above two extracts, it cannot be seriously contended that the account in question is not a partnership account. It is immaterial that it was opened as a client’s account. I am clearly of the view that sections 5, 10 and 15 of the Partnership Act 1890 are applicable to the circumstances of the case.
The sections provide:-
“S.5. Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership, and the acts of every partner who does any act for carrying on in the usual way business of the kind by the firm of which he is a member bind the firm and his partners, unless the partner so acting, has in fact no authority to act for the firm in the partnership matter, and the person with whom he is dealing either knows that he has no authority or does not know or believe him to be a partner.
S.10 Where by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm or any penalty is incurred, the firm is liable therefore to the same extent as the partner so acting or omitting to act.
S.15. An admission or representation made by any partner concerning the partnership affairs and in the ordinary course of business is evidence against the firm”.
Applying the above provision to the instant case, it seems clear to me that Exhibit 16 and Exhibit 2 being the acts of P.W.2 as agent of the partnership and the acts having been done in the ordinary course of business are binding on P.W.1 as well as on the partnership firm.
Since P.W.2 had signed Exhibits 2, 3, and 4 and wrote Exhibit 16, he had by his act induced the appellant Bank to act on Exhibits 2, 3, 4 and 16 and neither he nor P.W.1 nor the firm is permitted to set up P.W.2’s own act to the prejudice of the Appellant whom P.W.2 had misled. I resolve this issue in favour of the Appellant.
The Appellant’s 3rd issue for determination which forms part of the Respondent’s 3rd issue is issue is whether upon a calm view of the pleadings and evidence, the learned trial judge was right when he held that the Defendant wrongfully dishonoured plaintiff’s cheque, Exhibit 14(sic). As a basis for his claim in general damages, the Respondent in his amended statement of claim pleaded that:-
“by reason of the defendant’s negligence, the balance in the plaintiff’s account has been insufficient to cover the cheques issued by the plaintiff…”
At the trial, the plaintiff shall find upon the cheque to R.C.C. through N.W.R.D. aforesaid which was presented to R.C.C. and was returned unpaid… ”
At the trial, in an effort to prove the above averments, the Respondent tendered the letter dated 30/4/93 written by the R.C.C. as Exhibit 14 with the cheque in question as annexure. The Appellant’s contention is that the cheque, the annexure to the letter Exhibit 14 bore the endorsement ‘signature irregular’ implying that the cheque was dishonoured not because of lack of funds as pleaded but on account of the irregular signature on it. It was contended that as evidence was at variance with the pleadings, the Court was in error to have found in favour of the Respondent. It was further contended that the letter Exhibit 14 having been written at the time proceedings between the parties were pending was inadmissible in evidence in proof of its contents by virtue of section 91(3) of the Evidence Act. I have carefully examined the letter Exhibit 14. It does not indicate that the cheque annexed to it was returned on ground of lack of funds in the account in which it was drawn. It seems to me a mere academic exercise to determine whether or not it is inadmissible in evidence.
With respect to the endorsement on the cheque for N325,000.00 annexed to Exhibit 14. It needs to be pointed out that, it was not the Appellant’s case in the Court below that the cheque was dishonourcd on the ground of irregularity in the signature of the drawer. Going through paragraph 19 of the amended statement of defence which is a denial of paragraph 11 of the Respondent’s amended statement of claim. It seems to me that the Appellant did not dispute the allegation that the cheque in question was dishonored on the ground of insufficiency of funds, what is admitted needs no proof. The evidence or the endorsement on the cheque was a mere surplusage. It was not disputed that the respondent paid into the joint account the sum of N500.000.00. It was also not disputed that total sum of N331,000.00 was withdrawn from the said account. What was disputed was whether or not the withdrawals were authorised. Clearly, if the sum of N331,000.00 is withdrawn from the account the balance would be insufficient to meet a cheque of N375,000.00. Being of the view that the alleged fraudulent withdrawals were indeed authorised, I am unable to hold that the respondent had established a wrongful dishonour of his cheque to entitle him to damages.
The Appellant’s 4th issue which also forms part of the Respondent’s 3rd issue poses the question whether the award of one lump sum to the plaintiff as “general damages for breach of contract, negligence and loss of reputation” is sustainable in law. In paragraph 18(ii) of the amended statement of claim, the respondent claimed N5 million Naira being general damages for breach of contract, negligence and loss of reputation arising from the alleged unlawful withdrawal from the joint client account. The Court below held that the withdrawals were unlawful and awarded the sum of N500,000.00 as damages in that regard. Having expressed the view that the withdrawals were not unlawful, it goes without saying that the award is unsustainable. It becomes a mere academic exercise discussing whether the claim and award as formulated are bad in law. It is therefore my view that there is merit in this issue.
The appellant’s 5th and last issue for determination which also touches on the Respondent’s 3rd issue relates to the claim and award of interest. The Respondent claimed 520 percent interest rate per annum on the principal sum of N331,000.00 allegedly withdrawn unlawfully from the Respondent’s joint partnership account and the Court below awarded 10% interest rate. It is settled law that a claim based on special rate of interest sounds in special damages and therefore must be strictly pleaded and proved; See Himma Merchants Limited v. Aliyu (1994) 5 NWLR (Pt.347) 667; A.C.B. Plc. Haston Nigeria Ltd. (1997) NWLR (Pt.515) 110; Ruben Ekwunije v. Wayne West African) Ltd. (1989)5 NWLR (Pt.122)422 at 445. In the last of these cases, Nnaemeka-Agu, J.S.C. observed as follows:-
“Interest may be claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile custom or under a principle of equity such as breach of a fiduciary relationship. See: London Chatham and Dover Railway v. S. E. Railway (1893) A. C. 429 at 434. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of claim. In Nigeria, as the law is that a statement of claim supersedes the writ (for which see Udechukwu v. Okwuka (1956) 1 F.S.C. 70 at 71; (1956) SCNLR 189; Ekpau & Anor v. Uyo (1986) 3 NWLR (Pt.26) 63, if even it was not claimed on the writ but facts are pleaded in the statement of claim and evidence given which show entitlement thereto, the court may, if satisfied with the evidence award interest. Adjudication on the plaintiff’s right to interest in such a case will also establish the proper rate of interest and the date from which it should begin to run-whether from the accrual of the cause of action or otherwise”.
In his contribution, Agbaje, J.S.C., had this to say at pages 453 – 454 of the report:
“So, in my judgment for a claim for interest to properly exist for determination in the High Court of Plateau State, it must be stated in the endorsement of the claims to the writ of summons or in the Statement of Claim whether the claim for interest is based on contract or statute and the grounds upon which the claim is based.
A defect in this regard in the indorsement to the writ can be cured in the Statement of Claim since the latter supersedes the writs,
I have copied above para. 7 of the plaintiffs Statement of Claim where there is only a bare statement as to claim for interest on the sum of N16,000.00 claimed by the plaintiff. It is not stated whether the claim for interest is based on contract or statute. Nor are the grounds of the claim for interest shown on the statement of claim. Because of what I have just said, my conclusion would be that the plaintiff has not properly raised his claim for interest in this case, at least, up to the date of judgment. So, the trial Court, in my judgment was wrong to have awarded interest at all on the amount claimed by the plaintiff up to the date of judgment”.
(Italics for emphasis)
In the instant case, apart from the bare reference to interest in paragraph 18(ii) of the amended Statement of claim, it is not stated whether the claim is based on contract or statute and the grounds for the claim. The claim for interest was therefore not properly raised nor was evidence led in that regard. If follows therefore that the award of interest by the Court below is untenable.
In the light of the foregoing, this appeal succeeds and is accordingly allowed. The judgment of the Court below is set aside. In its place, I dismiss the Respondent’s claim. I award to the appellant against the Respondent costs assessed and fixed at N5,000.00
Other Citations: (2000)LCN/0749(CA)