Unity Bank Plc V. Aliyu Adamu & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment)

The respondents herein were former members of staff of the Federal College of Education, Yola who were retired in the year 2007. Thereafter, they appeared before a Screening Committee in Kaduna where they were screened and computations of their benefits made, based on their years of service, grade Level, documents, etc. the Federal government then paid them their severance benefits, via cheques through the office of the Accountant General of the Federation.

The Respondents lodged the cheques into their respect Savings accounts opened with the appellant Bank and the proceeds of the cheques were credited to these accounts. Sometime after that, the Respondents discovered to their chagrin that various sums of money had been debited from their Savings accounts, apparently without their knowledge and consent.

After protesting to the Appellant through their solicitors to no avail, the Respondent filed an action before the High Court of Justice, Adamawa State seeking the following reliefs as set out in their Amended Statement of Claim at pages 40-43 of the printed Record of Appeal:

“WHEREOF the Plaintiffs seek the following reliefs against the defendant:

1. A declaration that the slashing and debiting of severance allowances paid to the Plaintiffs which they lodged in their accounts without their knowledge, consent and authority is illegal, wrongful and amounts to breach of contract.
2. The total sum of N11,477,035.08 (Eleven Million Four Hundred and Seventy Seven Thousand and Thirty five Naira, Eight Kobo) being the total amount of the money which the defendant wrongfully slashed and debited from the respective accounts of the Plaintiffs.
3. An order directing the Defendant to re-credit the respective accounts of the Plaintiffs with the said amount of the money wrongfully debited from their accounts, OR in the alternative an order directing the Defendant to pay the said sum of N11,477,035.08 (Eleven Million Four Hundred and Seventy Seven Thousand and Thirty Five Naira, Eight Kobo) only through the court.
4. N10,000,000.00 General damages for breach of contract, detinue and conversion.
5. Cost of this litigation.

The Defendant denied the claim and in furtherance of this, filed a 22 paragraph Statement of Defence as contained at pages 44 – 48 of the printed Record. At the trial, the Respondents adduced evidence through one witness and tendered numerous documents marked Exhibits ADSY/51/2008 1 – 41 in proof of their claim; After numerous adjournments spanning over a period of about eight (8) months granted to the Appellant to defend the claim with no positive result, the trial Court closed the defence of the Defendant and ordered for written addresses as closing arguments by both learned Counsel. These were duly filed and adopted. Subsequently, after a period of over nine (9) months, the learned trial Judge, Lawi, J., delivered his Judgment in the following terms, inter alia:

“It is my view that PW1 in her evidence has proved the claim as made in (sic) 16 paragraph Statement of Claim and I hold that the plaintiffs have successfully proved the claim of the plaintiffs and having proved the claim the reliefs sought are granted as prayed.”

Dissatisfied by this decision, the Appellant filed his Notice of Appeal on 15-08-12 complaining on six (6) Grounds on the 15-08-12. Thereafter, the Appellant filed an Amended Notice of Appeal on the 30-11-12, and this was deemed duly filed and served on 20-03-13. The Grounds of Appeal, bereft of their particulars, are as follows:

1. The judgment of the trial court is against the weight of evidence.
2. The trial lower court erred in law and thereby occasioned a miscarriage of justice when it held “The case at hand is a civil case and which the law prescribes that it is proved on the preponderance of evidence or on a probability of evidence. It is my view that PW1 in her evidence has proved the claim as made in (sic) 16 paragraph Statement of Claim and I hold that the plaintiffs have successfully proved the claim of the plaintiffs and having proved the claim the reliefs sought are granted as prayed.”
3. The trial lower Court erred in law and thereby occasioned a miscarriage of justice when it gave its judgment well over nine months after the final addresses by counsel.
4. The lower trial Court erred in law and thereby occasioned a miscarriage of justice when it did not evaluate the evidence before arriving at the conclusion it did.”

On the 20th March, 2013, when this Appeal was called up for hearing Mr. Akirikwen, learned Counsel for the Appellant, adopted and relied on the Amended Appellant’s Brief of Argument filed on 30-11-12 and deemed properly filed on the 20-03-13 as the Appellant’s arguments in this Appeal. He urged the Court to allow the Appeal, set aside the decision of the trial Court and dismiss the claim of the Respondents. In like vein, Mr. Babakano, learned Counsel for the Respondents, adopted and relied on the Respondents, Brief of argument filed on 12-11-12 and deemed duly filed on 20-13-13 as the Respondents’ arguments in this Appeal. He urged the Court to dismiss the Appeal and affirm the Judgment of the trial Court.

The Appellant distilled two (2) issues from the Grounds of Appeal for determination by this Court. In like vein, the Respondent also formulated two issues which are analogous in substance. I therefore adopt the issues formulated by the Appellant as the issues to resolve this Appeal. They are thus set out hereunder:

1. Whether by the pleadings and evidence adduced before the trial Court the Respondents have satisfied the legal requirements for the grant of all their reliefs sought before the trial Court.
2. Whether the inability of the lower Court to deliver its Judgment within three months from the date of final addresses of counsel has not affected the Judge’s memory of the evidence such that he has forgotten the nature of evidence to evaluate same before making his findings.

In arguing issue one, Mr. Akhirikwen submits that, from the Statement of Claim, none of the Respondents knew how much was the credit standing in their accounts and none of them demanded for payment and the Appellant refused to honour their demands even when they still have some money in the account. Counsel argues that a demand, in banking transaction, is upon the presentation of a cheque, (when it is in respect of a current account), and the presentation of a withdrawal slip, (when it is a savings account), by a customer of the Bank. It is when the reaction of the Bank is in the negative when there is money standing to the credit of the customer that there can be said to be a breach.

Learned Counsel further submits that the contractual obligation between a bank and a customer is personal in respect of a savings account maintained by each individual account holder since a third party has no right to access the money in the account. The Respondents did not plead that, having monies to their credit in their accounts, made demands for payments of such monies and the Appellant refused to honour such demands. Counsel picks holes in the evidence of the PW1 in that she failed to state the dates on which the Respondents went to the Bank, how much they have in their respective accounts, how much was demanded, how much the Bank did not pay, and how she got this information from the other Respondents, if she was not told. Counsel thus contends that the evidence of this witness lacks credence as she can only state the position of her own account and not give information in regard to the accounts of the other Respondents. He argues that by Section 3(1) of the Bills of Exchange Act, Cap B8 LFN, 2004, a withdrawal slip falls strictly outside the instruments under which a third party becomes a privy with regard to dealings with accounts in the bank.

Learned Counsel therefore submits that the evidence of the PW1 touching on the other Respondents’ Savings Accounts is tantamount to hearsay. He relies on Ogbeide V Osula (2004) 12 NWLR (Pt. 886) 86, and Sections 37 & 38 of the Evidence Act, 2011 to submit that hearsay evidence is inadmissible. Counsel further submits that there is no evidence proving the facts pleaded as affecting the twelve (12) other Respondents since they only called one witness to prove that there were contracts between the thirteen (13) of them. He submits that it was not possible for PW1 to give evidence in respect of another account holder’s transaction with the Appellant. Counsel therefore urged the Court to hold that the Respondents, as Plaintiffs, did not plead and prove a breach of contract between them and the Appellant, and that the trial Court was thus in error when it granted reliefs in favour of the Respondent for breach of contract.

Going further and relying on UPS V Adeyosoye (2011) 5 NWLR (Pt. 1240) 315 & Garba V Kur (2002) 8 NWLR (Pt. 831) 280 for the definition and ambit of special and general damages, learned Counsel submits that the particulars of special damages should be the breakdown of the items of special damage with the sum total of what the plaintiffs claim and the total indicated. Counsel contends that from paragraph 10 of the Statement of claim, it cannot be said with certainty that the sum total of the figure shown is N11,477,035.08, which is the sum also given in evidence by the PW1. In view of the alleged uncertainty, Counsel submits that it is not the function of this Court to recalculate the figure as that is the function of both the pleadings and credible evidence. Counsel submits that since the amount is ascertainable, the Plaintiffs ought to have pleaded the particulars to the final total and given evidence to buttress such pleadings. He relies on NMA v MMA Inc. (2010) 4 NWLR (Pt.1185) 613 & Nwanji V Coastal Serv. (Nig) Ltd (2004) 11 NWLR (Pt. 885) 552.