Stephens Industries Limited & Anor. V. Bank Of Credit And Commerce & Anor. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO J.S.C. 

This appeal is from a decision of the Court of Appeal, Port Harcourt Division given on 23 January, 1992. The plaintiffs/appellants (hereinafter called the appellants) sued in the High Court, Port Harcourt for general damages of N1,000,000.00 because their cheque for N 162.45 dated 30 July, 1984 was returned unpaid by the defendants/respondents (hereinafter called the respondents) with the endorsement “DRAWER’S ATTENTION REQUIRED.” The learned trial judge gave judgment for the appellants for the sum of N25,000.00, holding that such an endorsement was defamatory of them. He said: “I have come to a finding that the words were capable of having a libellous meaning and indeed were libelous of the plaintiffs. I have also held that the defence of justification cannot stand.”

The defence of justification referred to was whether the current account of the appellants on which the cheque in question was drawn had been effectively and properly closed at the time the cheque came through. If it had, then it follows that the appellants had no cause of action. That was the issue the Court of Appeal decided. In his leading judgment, Edozie JCA observed as follows:

…… if the account had been closed at the material time then the endorsement on the cheque, Exh. A, with the words complained of would not have been actionable. It is important to appreciate that the operative moment is the time when the endorsement complained of was made on the cheque Exh. A. According to the appellants, it was on August, 9th 1984 when Exh. A was presented through the clearing house. If at that material time the account in question had not been closed and was in sufficient funds to meet the value of the cheque, then, in the absence of any acceptable explanation, the appellants stood to be mulcted in damages.”

He later concluded on the crucial issue whether the account had been closed and the performance of the trial judge in respect of the evidence thereon by saying inter alia:

“It is trite law that where the court of trial fails to appraise the facts and make specific finding of fact on points which are crucial to the proper determination of the case before it, an appellate court will intervene to set aside the judgment of the lower court on the case …. It is my view that since the learned trial judge had failed to make a specific finding on whether or not the 2nd respondent demanded that the account be closed and having contrary to the trend of evidence held that the account had not been closed, that finding is perverse and cannot support the judgment.”

The appellants have now appealed that judgment upon eleven grounds of appeal. From the said grounds of appeal seven issues for determination were set down in the appellants’ brief of argument. The respondents filed no brief of argument and took no steps whatever to contest the appeal. I must say that most of the grounds of appeal as well as the issues for determination are misconceived and unnecessary. They are mainly on the competence of the grounds of appeal filed in the lower court. The present appellants took a preliminary objection against them there and the court carefully resolved the objection. In the end, it decided the appeal virtually on two of the grounds, namely, grounds 1 and 2.

I note that that ground 1 was not objected to by these appellants. Ground 2 was objected to on the ground that it contained no particulars. But that ground, as held by the lower court quite rightly, in my view, has particulars incorporated in it. The said grounds 1 and 2 were stated as follows:

“1. The learned trial judge erred in law and on the facts in holding that the account of the 1st plaintiff with the 1st appellant had not been closed at the time material to this action when.

(i) There was evidence before him by Chief Warmate who was referred to in paragraph 10 of the statement of claim that the 2nd plaintiff demanded the immediate closure of the 1st plaintiffs account.

(ii) Exhibit ‘D’ which the learned trial judge held was not dated was in fact dated August 9, 1984 and was duly acknowledged to have been received by the 1st appellant on August 9, 1984.

2. The learned trial judge erred in law and on the facts in holding that July 30, 1984 appearing on Exhibit ‘A’ which is a specifically crossed cheque is the date material to the action and not August 9, 1984 which was the date when Exhibit ‘A’ came through the clearing house to the 1st appellant.”

It must be said that the framing of a ground of law or misdirection requiring that particulars be supplied may well be a question of the skill of the counsel who raises the ground of appeal. The particulars supporting such a ground need not always be adumbrated. They can often be conveniently laced with or embedded in the complaint made in the ground of appeal to show the reason for such a complaint which makes the ground somewhat self-explanatory. That is the ultimate purpose of requiring particulars, They tend to highlight briefly why and how the error of law occurred. In other words, the appellants says ‘I complain that the court has erred in law in the way it resolved the issue in question. My reason for this is because which reason is then given as part of the complaint if straightforward and short. But if the reasons are many, there could be need to set them out. Whichever form they are given, they are the particulars envisaged in Ord. 8, r. 2(3) of the Rules of this court: see Aruyeye v. Ashamu (1987) 18 NSCC (pt. 1) 117 at p. 130; (1987) 1 NWLR (Pt. 49) 267 at p. 268: Globe Fishing Industries Ltd v. Coker (1990) 7 NWLR (Pt. 162) 265 at p. 300: Shyllon v. Asein (1994) 6 NWLR (Pt. 353) 670 at. 385.

It was those two grounds of appeal I have already reproduced that supported the main, and perhaps the only, issue upon which the appeal was decided. Consequently, the only two issues which call for consideration on this appeal out of the seven stated by the appellants are: (1) Was the Court of Appeal right to reverse the decision of the trial judge that the account of the appellants was not properly closed.

(2) Whether the Court of Appeal was correct in disturbing the findings of the High Court under the circumstances of this case.