Union Bank Of Nigeria Plc V Mr. N.m. Okpara Chimaeze (2014)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Benin Division of the Court of Appeal dismissing the appeal of the appellant/cross respondent herein and allowing the cross appeal of the respondent/cross appellant herein. The judgment appealed against was delivered on the 22nd day of February 2006. The brief facts of the case that brought about the instant appeal and cross appeal are told hereinafter at once.

The respondent/cross appellant as plaintiff took out a writ at the Edo State High Court, hereinafter referred to as the trial court, against the appellant/cross respondent, the defendant thereat, claiming the sum of thirty million naira general and special damages for the wrongful dishonour of the cheque he drew on the appellant/cross respondent in favour of Lever Brothers Nigeria Plc. It is averred in the writ that the respondent/cross appellant had enough credit in the account which he operated as a general trader and major distributor of the Lever Brothers Nigeria Plc.

Appellant/Cross respondent’s case is that the lodgment of N206,000.00k into respondent/cross appellant’s account was fictitious and that the purported documentary evidence that one Miss. D Nwakaeze had deposited the amount is fraudulent. It is contended that a conspiracy between one of the bank’s staff and the Respondent/Cross appellant’s staff is behind the fictitious entry in the latter’s account. The respondent/cross appellant, therefore, never had the required credit in his account to warrant the payment of the cheque he issued and same was duly dishonoured.

The trial judge, Omage J (as he then was) having found that the respondent/cross appellant had sufficient money in his account and the appellant/cross respondent had wrongly dishonoured his cheque for the sum of N205,936.00k issued in favour of the Lever Brothers Nig Plc, awarded the respondent/cross appellant N100,000 and N250,000.00k general and special damages respectively. Dissatisfied with the trial court’s judgment, the appellant/cross respondent appealed to the lower court on an amended notice containing five grounds. The respondent/cross appellant also appealed against the trial court’s judgment.

The lower court in its judgment dismissed appellant’s appeal in its entirety, allowed in part respondent’s Cross appeal and consequentially increased the general damages awarded the latter from N100,000.00 (one hundred thousand naira) by N1,000,000.00 (one million naira). Aggrieved, both parties have appealed against the lower court’s judgment with the appellant/cross respondent complaining that the increase of the general damages of N100,000.00k (one hundred thousand naira) awarded to the respondent/cross appellant by the trial court to N1,100,000.00k (one million one hundred thousand naira) by the lower court is excessive. Respondent/cross appellant’s grudge in his appeal is that the lower court’s increase is still insufficient. He urges that it be further enhanced.

Parties have filed, exchanged and adopted their respective briefs at the hearing of the appeal as their arguments in support and/or opposition of the two appeals. The two issues formulated in the appellant/cross respondent’s brief for the determination of his appeal read:-

“(1) Whether or not the court below was right in affirming the award of the sum of N250,000.00 (solicitors cost) as special damages to the respondent in the circumstances of this suit.

(2) Whether or not there are circumstances in this case to warrant the increase by the court below of the general damages from N100,000.00k (one hundred thousand naira) to N1,100,000.00k (sic) one million naira in favour of the respondent.”

The two similar issues the respondent/cross appellant distilled at page 3 of his brief as having arisen for the determination of the appeal are:-

“(1) Whether or not the court below was right in affirming the award of the sum of N250,000 (solicitor’s costs) as special damages to the respondent in the circumstances of this suit.

(ii) Whether or not there are circumstances in this case to warrant the increase by the court below of the general damages from N100,000 to N1,100,000.00k (sic) in favour of the respondent.”

Under the 1st issue, it is submitted that the respondent/cross appellant in paragraphs 21 and 22 of his amended statement of claim averred that he had deposited one hundred and fifty thousand naira with the solicitor that charged him two hundred and fifty thousand naira to prosecute his case against the appellant/cross respondent. In joining issue with the respondent/cross appellant, it is further submitted by the learned appellant’s counsel, the appellant/cross respondent not only denied in paragraphs 2 and 20 of its statement of defence but averred in the alternative that the payment of the solicitor’s fees by the respondent/cross appellant was not a loss that had arisen from appellant/cross respondent’s dishonour of respondent’s cheque. Respondent/cross appellant’s evidence at pages 26 and 36 lines at 25 and 1-7 respectively that he only paid N150,000 out of the N250,000 fees stand at variance with his pleadings. The lower court’s affirmation of the trial court’s award of the entire N250,000 special damages, contends learned counsel, is a grave error for at least three reasons.

Firstly, learned appellant’s counsel contends. The respondent/cross appellant’s failure to strictly prove the special damages disentitles him to the award of the sum he claims. Learned counsel relies on Neka B.B.B. Manufacturing Co. Ltd V. ACB Ltd (2004) All FWLR (Pt 198) 117.