➥ CASE SUMMARY OF:
Unity Bank Plc V. Adamu & Ors. (Court of Appeal, CA/YL/44/2012)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Evidence of PLEADINGS;
General and special damages;
Judgment rendered after 90-days.
➥ CASE FACT/HISTORY
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.
➥ ISSUE(S)
I. 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?
II. 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?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE RESPONDENT PROVED HIS CASE
‘Now the PW1, Aishatu Dewa, was the sole witness for the plaintiffs. She testified in line with the Plaintiffs’ pleadings in proof of the claim. She gave evidence as to how, after the Respondents, after being duly screened by a Committee set up by the Federal Government of Nigeria through the Office of the Accountant General of the Federation, were issued severance pay slips and cheques for various amounts representing their severance benefits. All of the Severance Pay Slips and some copies of the cheques were admitted in evidence, (without any objection from the Appellant) and marked Exhibits ADSY/51/2008 1-13 and ADSY/51/2008 14-20 respectively. She testified that copies of the cheques belonging to seven (7) of the Respondents were either not made before they were deposited with the Appellant Bank or they were lost. However, the originals were in the custody of the Appellant because they were deposited with the Appellant Bank for crediting into their Savings Accounts. The Savings Accounts Pass books of all thirteen (13) Respondents are also in evidence as Exhibits ADSY/51/2008 21 – 33, while six (6) of the Deposit Slips used to pay in the cheques are Exhibits ADSY/51/2008 34-39. She testified positively that all thirteen Respondents paid in their cheques into their Savings Accounts with the Appellant. When, however, they all went to make some withdrawals from their accounts, they discovered to their amazement that, some of the monies they had paid into their account s via the cheques had been debited in varying degrees. She referred to paragraph 10 of the Plaintiffs’ Statement of Claim for the exact amounts that were debited from each of their accounts, bringing the total sum to N11,477,035.08. It is her evidence that when they inquired from the Appellant the reason for these deductions, they did not get a satisfactory answer and so they briefed their Solicitors. On their instructions, the Solicitor wrote to the Appellant a demand letter and the Appellant replied in writing that they would investigate the matter. Both letters are in evidence as Exhibits ADSY/51/2008 40 series and 41. However, up until the date of her testimony, the Appellant had not done anything about their plights. She therefore reiterated their claim in paragraphs 16(1)-(5) of the Statement of Claim and asked the trial Court to award them an additional N10,000.00 in general damages for breach of contract, detinue and conversion. Under cross-examination, PW1 clarified that one John Titi mentioned in the pleadings is not one of the Plaintiffs before the trial Court. Upon an evaluation of the evidence comprising of the oral testimony of the PW1 in conjunction with the mass of documentary evidence, Exhibits ADSY/51/2008 1 – 41 before the trial Court, the learned trial Court came to the conclusion that the Respondents had proved their claims. It therefore awarded the Respondents all their claims as per their Statement of claim. In my judgment, the Respondents have met the standard and burden of proof. In the absence of any evidence from the Appellant, (as Defendant), to place on the other side of the evidence adduced by the Plaintiffs, the evidence from the Respondents, (as Plaintiffs), is preponderating.’
‘On the assertion of the Appellant that the evidence of the PW1 amounts to documentary hearsay, I am of the considered view that whereas the decision of this Court in Mark V. Abubakar (2009) 2 NWLR (Pt. 1124) 79 is good law, it is not applicable to this case as the facts are distinguishable and not on all fours. In the case referred to and relied upon by the Appellant, this Court found that the reports of certain police officers and INEC Officials who had earlier testified before the Election Tribunal and whose reports were subsequently tendered by some other person, amounted to documentary hearsay. The point made was that the documents which were allegedly made by the witnesses should have been tendered through them and not through another. In the instant case, the Severance Pay Slips, Savings Accounts Pass books, Cheques and Deposit Slips were properly tendered and admitted in evidence through the PW1, without any objection being raised by learned Counsel for the Appellant. It is now too late in the day for the Appellant who was properly represented by Counsel at all times during the trial to raise issues on documents in evidence which he willingly allowed to form a part of the Record and raised no objection to the tendering of same when he had all the opportunity in the world to do so.’
‘One final word: It must be said that Counsel’s address, no matter how brilliant or elegantly couched, cannot take the place of pleadings and/or evidence. Cases are won on credible evidence and not on addresses of Counsel, and same does not serve as a substitute for evidence. See Ogunsanya V. State (2011) 6 SCNJ 190; Salzgitter Stahl GMBH V. Dosunmu Industries Ltd (supra); Counsel’s submission that the Respondents have not shown that they maintain any account with the Appellant is not pleaded. The case of the Appellant on pleadings is that monies were debited on an alleged instruction from the drawer of the Cheques, the Accountant General of the Federation, for inaccurate calculation. The Appellant’s Counsel cannot now in his address to the Court attempt to make a different case from the case he made in his pleadings. The learned trial Judge was therefore right when he found for the Respondents in terms of their claims and I find no reason to disturb same. On a balance of probability, the Respondents indeed proved their claims. It is a no contest claim and I find no reason to interfere with same. I thus resolve issue one in favour of the Respondents.’]
.
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↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE GIVING OF JUDGMENT AFTER 90 DAYS DID NOT CAUSE ANY MISCARRIAGE OF JUSTICE
‘This almost exact situation arose in the case of Dibiamaka V. Osakwe (1989) 3 NWLR ((Pt. 107) 101 where the delivery of Judgment was delayed by nine (9) months. There, the Supreme Court, per Oputa, JSC held inter alia that the emphasis should not be on the length of time simpliciter but on the effect it produced on the mind of the trial Judge. He states thus at pages 114-115: “Justice in our Courts is justice according to law. And the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such o case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene, The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.” In the instant case, the trial Judge’s evaluation of the evidence, though unarguably brief, in the circumstances of the case, was on point and supported by the credible evidence adduced before the trial Court. Having struck out the entire Statement of defence of the Appellant on the basis that averments in pleadings not supported by evidence are deemed abandoned, he found that there was absolutely nothing to place on the other side of the imaginary scale against the avalanche of oral and documentary evidence adduced by the Respondents. Thus he found that the evidence of the PW1 in substantiation of the averments in the Plaintiffs/Respondents’ Statement of Claim stood unchallenged. This is the law as set down in a plethora of decided cases and his finding along those lines cannot be faulted.’
‘There is nothing on the face of the Judgment to show that it was not a well considered Judgment, or that at the time the learned trial Judge wrote it, he was not mentally alert or that his brain and mind were suffering from diminishing utility. That being the case, I am unable to agree with the Appellant that the delay in delivering the Judgment affected the trial Judge’s perception, appreciation and evaluation of the evidence such that he lost the impressions made on him by the sole witness, PW1. Besides which the evidence was predominantly documentary. So the issue of losing his memory on the impressions created in his mind by the witness is minimal. In the instant case, I find that there is no fear of a possible miscarriage of justice to warrant the setting aside of the Judgment. The findings of the learned trial Judge were supported by available credible evidence. Why should this Court interfere? I find no reason to accede to the Appellant’s invitation to interfere. Again, I decide issue two against the Appellant.’]
.
.
.
✓ DECISION:
‘In the final result, I find the Appeal entirely lacking in merit. It is accordingly dismissed. The Judgment of the High Court of Justice, Adamawa State delivered on 4th day of June, 2012 by Lawi, J., (of blessed memory), is upheld and affirmed. I award costs assessed at N50,000.00 to the Respondents.’
➥ FURTHER DICTA:
⦿ PLACE OF PLEADINGS IN A TRIAL
The place of pleadings in the trial of cases before our courts of law is well known. Pleadings are the summary of the facts of a case to put the other party on notice of what it has to contend with in court in order not to take him by surprise. In other words, it is to outline the issues in dispute between the parties. See Alibo V. Okusin (2010) 4 SCNJ 1; Nasir V. Civil Service Commission Kano State (2010) 2 SCNJ 184; Salzgitter Stahl GMBH v. Tunji Dosunmu Industries Ltd (2010) 4 SCNJ 186. Parties, as well as Courts, are bound by the pleadings of the parties. See Anyanwu V. Uzowuaka (2009) 7 SCNJ 29. In addition, where the averments in pleadings are not supported by evidence, they are deemed abandoned and liable to be struck out. See Kaydee Ventures Ltd V. The Hon Minister of the FCT (2010) 2 SCNJ 276. The Defendant is also required to clearly admit or deny the averments in respect of material issues in his Statement of Defence. Averments in a Statement of Claim not traversed in a Statement of Defence are deemed admitted. See Salzgitter Stahl GMBH V. Tunji Dosunmu Industries Ltd (supra); Arisons Trading and Engineering Co Ltd V. The Military Governor of Ogun State (2009) 6 SCNJ 141. It is for this reason that it is imperative to commence the consideration of this Appeal by settling up front what issues were thrown up for the determination of the lower Court by the parties’ pleadings before it. — J. H. Sankey JCA.
⦿ WHAT IS ADMITTED IN PLEADINGS NEED NO FURTHER PROOF
Evidently, by paragraphs 1 and 6 of the Statement of Defence, the Appellant admitted paragraphs 1, 2, 3, 6 and 7 of the Statement of Claim. The rule as to pleadings is that, what is admitted is deemed proved. The Appellants therefore expressly admit that the Respondents were paid their severance benefits via cheques, which cheques they used in opening Savings Accounts in the Appellant Bank and lodged the cheques therein. The rule is that admissions made in pleadings need no further proof. Thus, an issue does not arise between parties in respect of matters expressly admitted on pleadings. See Akinlagun V. Oshoboja (2006) 5 SCNJ 261; and Okposin V. Assam (2005) 7 SCNJ 442. Pleadings are however not synonymous with evidence. They constitute mere notice of allegations a party relies on and not the evidence or proof of the facts contained therein. See Iwueke V. Imo Broadcasting Corporation (2005) 9 – 10 SCNJ 35. — J. H. Sankey JCA.
⦿ AVERMENTS NOT PROVED IN PLEADINGS ARE DEEMED ABANDONED
Clearly what this means is that, despite the averments in its pleadings in purported defence of the claim at the lower Court, the Appellant presented no actual or meaningful defence to the action. The law is since settled and this bears emphasis that averments in pleadings, being not supported by evidence, are deemed abandoned. In the absence of oral and/or documentary evidence, averments in pleadings are void. See Kaydee Ventures Ltd V. The Hon. Minister of FCT (supra); Cameroon Airlines v. Otutuizu (2011) 2 SCNJ 96; 7 The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v. Eke-Spiff (2009) 2 SCNJ 119. Consequently, all the evidence adduced by the Respondents through the PW1 in proof of their claim stands unchallenged. — J. H. Sankey JCA.
⦿ STANDARD OF PROOF; WHERE NO EVIDENCE FROM THE OTHER SIDE, MINIMAL EVIDENCE SATISFIES THE RULE
The standard of proof in civil cases is on the preponderance of evidence or on the balance of probabilities. The evidence adduced by the Plaintiffs should be put on one side of the imaginary scale and evidence adduced by the defendant put on the other side of the scale and both should be weighed together; not by the number of witnesses called by either side but by probative and qualitative value to see which side preponderates. This is what is meant when it is said a civil case is decided on a preponderance of evidence or balance of probabilities. In civil cases, the burden of proof rests on the party asserting. It lies on the person whose success in the action depends on proving his assertion. See Alade v. Alic (Nigeria) Ltd (2010) 12 SCNJ 143. However, the law is also trite that where one side does not call evidence, the minimum or least evidence called by the other party satisfies the requirement of proof by it in civil cases. This is the minimum evidence rule. See Adewuyi v. Odukwe (2005) 7 SCNJ 227. In the instant case, as there was no evidence offered by the Appellant, the imaginary scale preponderated very heavily in favour of the Respondents. From the proceedings at the trial Court in the printed Record of Appeal, there is nothing from the defence to place against the evidence of the Respondents/Plaintiffs. See Sosan v. HFP Engineering (Nig) Ltd (2004) 3 NWLR (Pt. 861) 546; Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66; and Mogaji v. Odofin (1978) 4 SC 91. As afore-stated it is settled that where there is no evidence to put on one side of the imaginary scale in a civil case, the minimum evidence on the other side satisfies the requirement of the rule. See also Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352; Nwabuoko v. Ottih (1961) 2 SCNLR 232; (1961) ALL NLR 487. — J. H. Sankey JCA.
⦿ THE AWARD OF GENERAL VERSUS SPECIAL DAMAGES
The claim was for general damages, which loss is inferred by law from the breach. As was held by the Supreme Court per Karibi-Whyte, JSC in the case of Ijebu-Ode V. Adedeji Balogun and Co (1991) 1 NWLR (Pt. 166) 136, learned Counsel has fallen into common confusion in claims of this nature of the difficulty in making a clear distinction between general and special damages. The common error is that the two are mutually exclusive. The assumption is that that which is not general damages must be special damages. However, the expressions are to denote both liability and proof. General damages are such as the court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of the reasonable man, while special damages are given in respect of any consequences reasonably and probably arising from the breach complained of. See also Badmus V. Abegunde (1999) 11 NWLR (Pt. 627) 493. The division between special damage and general damage is more appropriate in cases of tort than in cases of contract. General damages are such as the law will presume to be the direct natural or probable consequence of the act complained of. Special damages on the other hand are such as the law will not infer from the nature of the act. They do not follow in the ordinary course of events. They are exceptional in their character and therefore they must be claimed specially and proved strictly. In cases of contract, special or exceptional damages cannot be claimed unless such damages were within the contemplation of both parties at the time of the contract. See Sosan V. HFP Engineering (Nig.) Ltd (supra). In Chanrai v. Khawam (1965) 1 ALL NLR 182 @ 188, the Supreme Court observed on the categorisation of special and general damages in contract cases as follows: “We would point out that the terms ‘special’ and ‘general’ damages are misleading and are likely to create confusion in the assessment of damages, especially when those terms are employed in connection with cases in which no such distinction is either necessary or desirable.” General damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of and, in this case, damages resulting from the loss flowing naturally from the breach of contract and is incurred in due consequence of the breach. In cases of breach of contract, assessment of damages is calculated on the loss sustained by the injured party which loss was either within the contemplation of the parties or is an unavoidable consequence of the breach. — J. H. Sankey JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Jummai Hannatu Sankey, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Akirikwen.
⦿ FOR THE RESPONDENT(S)
Mr. Babakano.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
