Union Bank of Nigeria Limited V. Ifeatu Augustine Nwoye (1989)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The respondent, as plaintiff in the court below, took out a writ of summons which was endorsed as follows against the appellant:

“1. The plaintiff who is a trader, residing at No.12, Niger Bridge Road, Asaba maintains a current account with the defendants Bank at Asaba.

2. The defendant is a limited liability company with its Head Office at No.40 Marina Lagos and carries on Banking business at their branch at Asaba, Bendel State, among other places in Nigeria.
3. On or about the 2nd day of July, 1984 the plaintiff issued a cheque No.360008/044465 for N15,000.00 (fifteen thousand naira) to plaintiffs Trading Associates, Ifeatu Onuorah & Co. which cheque was on 11/7/84 wrongfully and/or negligently dishonoured by the defendant despite the fact that the plaintiff at the material time had enough money in his account to meet up the payment of his said cheque.

The plaintiff in consequence has been greatly injured in his credit and in his said trade or business, and he has suffered loss and damage.

WHEREFORE the plaintiff claims against the defendant the sum of N100,000.00 (One hundred thousand naira) being special and general damages for wrongful dishonour of the plaintiffs said cheque No.360008/044466 or In the Alternative, N100,000.00 (One hundred thousand naira) special and general damages for negligence.”

Pleadings were ordered and exchanged and further amended statement of claim and further amended statement of defence. Both parties called evidence in support of his or her position. The trial Judge in a reserved judgment found the appellant liable and made a total award of N40,000.00 being special and general damages of N28,266.00 and N11,734.00 respectively. The appellant was thereby aggrieved and has appealed to this court on six grounds of appeal. It is note-worthy that none of the grounds of appeal questioned the principles for awarding damages.

The respondent filed a notice of preliminary objection to the grounds of appeal which notice the learned counsel for the respondent withdrew at the hearing of the appeal and was accordingly struck out.

At the hearing of this appeal, the learned counsel for the parties relied upon their respective briefs and made oral submissions in amplification. The issue calling for determination, on the evidence produced before the learned trial Judge, is the point in time when the respondent’s draft for N80,000.00, exhibit 51, was cleared. The issue for determination is, therefore, very narrow and turns mainly on the facts.

In the circumstance, it will be necessary to relate the facts at the case briefly. The respondent had been maintaining a current account with the Asaba Branch of the appellant since 1982.The respondent on 2nd July, 1984 drew a cross-cheque for N15,000.00 in favour of a firm, Ifeatu Onuorah & Co. on his account with the appellant’s branch at Asaba.

The cheque No.360808/044465 dated 2nd July, 1984 was presented thrice, on 2nd July, 1984, the very day the draft was paid in, 6th July, 1984 and 11th July, 1984. On each occasion the cheque, which is exhibit 35 in this appeal, was presented it was endorsed either “effect uncleared” or “represent”. It is the respondent’s case that his account was in sufficient fund to meet the value which the cheque was drawn for. The respondent came to this conclusion on the strength of certain payments he made to his account on or about the day the cheque was made and first presented. In this regard his evidence runs thus:

“As at 28/6/84 I had in my current account with the defendant bank the sum of N9,038.24. Between 2/7/84 and 10/7/84 I made many lodgments. I can recognise the bank teller with which I made the lodgments. I made 8 lodgments. On 2/7/84 I made lodgments of N191: marked Exhibit 14, N1,700 Bank draft marked exhibit 15, N8,000 Bank draft A.C.B. Asaba marked exhibit 16.

On 5/7/84 I made lodgment of N500 cheque ACB Asaba exhibit 17, N2,000 bank draft; Tendered; Exhibit 18. On 6/7/84 I made lodgment, N3,003 in cash; tendered and marked exhibit 19 N5,650 Union Bank Draft and marked exhibit 20. On 10/7/84 I paid in N620 Union Bank Asaba cheque. It is exhibit 21.

As at 10/7/84 I have in my account N19,671.24. I obtained the statement of my account to the above effect.”

The statement of account was eventually admitted as exhibit 22. The respondent also testified that he had an overdraft facility of N3,500 in addition to the above benefits. The appellant did not seriously contest the lodgments claimed by the respondent. Its main grouse was that the cheques and drafts concerned in this appeal had to be forwarded for clearance and had not been cleared. In this on text, D.W.2, Mrs. Juliet Adeabi Madubueze, who was the branch manager at the material time testified thus: