First Bank of Nigeria Plc. V. Chief M. A. Akande & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

This is an appeal by the Defendant/Appellant against the judgment of Ade Alabi, J. sitting at the Lagos High Court, delivered on the 4th day of December, 1992 which granted all the reliefs sought by the Plaintiff/Respondent. The facts that led to this appeal are as follows:-

On 27/9/88 the respondent purchased from the appellant bank US $144 (One hundred and forty four United States Dollars). He paid N851.65 for the purchase. He was issued with a purchase receipt which contained the serial numbers of the currency notes sold to him. The respondent then departed Nigeria in the night of 27/9/88 and arrived at Zurich Airport in the morning of 28/9/88. At Zurich Airport, according to the respondent, he offered one $20 note to the cashier of a bank in the arrival hall of Zurich airport. The cashier looked at the note and told the respondent that the note was fake. The cashier then made some telephone calls. A few minutes later, the Police arrived and whisked away the respondent in their van to the Police Station. The respondent testified that the Police found the remaining Dollar Notes he was carrying which they declared fake except $4 which they said were genuine. At the Police Station, the respondent was grossly ill treated and subjected to various types of indignities. As a result the respondent sued the appellants claiming the sum of N20,000,000.00 (Twenty million naira) as aggravated damages and the sum of N625,951.60 as special damages. He also sought for an order directing the appellant to acknowledge in writing to the KANTONS POLIZEI Zurich that it sold the $140 to the “‘respondent and absolving the respondent from blame whatsoever. He further, sought for an order directing the appellant to apologies in writing to the respondent.

The appellant denied all the respondent’s claim. The appellant alleged that they purchased the said currency notes from the Nigeria Police. The appellant therefore filed a third party notice, claiming indemnity against the third party in respect of the respondent’s claim. The appellant maintained that the currency notes they purchased from the Nigeria Police, which they sold to the respondent, were genuine. Before the said Nigeria Police, the notes were tested and they were found to be genuine.

At the trial, three witnesses testified on behalf of the respondent, including the respondent himself, while the appellant called one witness. In his judgment, the learned trial judge held that the respondent’s action succeeded. He accordingly entered judgment in favour of the respondent in the sum of N750,851.61 with N2,000 costs in favour of the respondent. The trial judge stated:- “I do not believe the evidence of “DW1” to the effect that the American Dollars the Defendants sold to the Plaintiff were very genuine. He was not telling the court the truth. He was out to mislead the court to protect not only his employers but also himself and his job having been directly involved in the transaction of sale of the fake and counterfeit United State Dollars.

The trial judge then held that the respondent was entitled to the award of aggravated damages and stated:-

“In the light of the above, I award aggravated damages in favour of the Plaintiff assessed at Seven hundred and fifty thousand Naira. In addition I believe that the Plaintiff is also entitled to a letter of apology as claimed and I hereby direct accordingly.”

The Defendant/Appellant being dissatisfied with this decision has appealed to this Court on the following grounds of appeal:-

(1) The learned trial judge erred in law in awarding aggravated damages to the Plaintiff.

Particulars of error

a) There was no pleading on the part of the Plaintiff of any behaviour of the Defendant in aggravation of damages.

b) . There was no proof of any behaviour of the Defendant which could have justified an award of aggravated damages.

c) The injured feelings and embarrassment alleged and held as proved by the Plaintiff are the consequences of the alleged negligence of the Defendant. The Defendant had not been shown to have done any other act in excess of its alleged negligence to aggravate the damages occasioned by the negligence.

d) Negligence does not fall within the group of tortuous claims for which aggravated damages is normally awarded.