➥ CASE SUMMARY OF:
Union Bank of Nigeria Plc v. Mr. N.M. Okpara Chimaeze (2014) – SC
by PipAr Chima
Supreme Court – SC.204/2006
➥ JUDGEMENT DELIVERED ON:
On Friday, the 11th day of April, 2014
➥ AREA(S) OF LAW
Wrong dishonour of cheque;
➥ NOTABLE DICTA
⦿ ONLY PERVERSENESS CAN SET ASIDE LOWER COURT’S FINDINGS
Learned respondent/cross appellant’s counsel is right in his submission that a finding of a lower court on appeal is only set-aside where same is perverse. In a seemingly endless number of the decisions of this court, it has been held that a decision of a court is perverse when it ignores the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case an appellate court is bound to interfere with such a decision and set it aside. – Dattijo Muhammad JSC. Union Bank v. Chimaeze (2014)
⦿ DAMAGES FOR WRONGFUL DISHONOUR OF CHEQUE IS AGGRAVATED
Damages awarded in this class of claims (wrongful dishonour of cheque) is aggravated not only for the inconvenience caused the claimant but injury done to his reputation, credit, loss incurred following the wrongful dishonour of his cheque and for his overall anguish as well. The object of the award made the respondent/cross appellant here is to put him, as far as possible, in the position he would have been but for the negligence of the appellant/cross respondent in dishonouring his cheque. – Dattijo Muhammad JSC. Union Bank v. Chimaeze (2014)
⦿ WHAT IS DAMAGES? SPECIAL AND GENERAL
What then is damages generally? Damages are money claimed by or ordered to be paid to, a person as compensation for loss or injury. In other words, damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong. General damages are damages that the law presumes follow, from the type of wrong complained of and do not need to be specifically claimed. While special damages are damages that are alleged to have been sustained in the circumstances of a particular wrong. To be awardable, special damages must be specifically claimed and proved. – ARIWOOLA J.S.C. Union Bank v. Chimaeze (2014)
⦿ SPECIAL DAMAGES WILL BE UPHELD UPON EVIDENCE ADDUCED AND NOT CHALLENGED
On special damages, it has been held that where the plaintiff plead the special damages and gives necessary particulars and adduce some evidence of it without the defendant challenging or contradicting the evidence, he has discharged the onus of proof placed on him and unless the evidence adduced is of such a quality that no reasonable tribunal can accept, it ought to be accepted. The reason is that where evidence called by the plaintiff in a civil case is neither challenged nor contradicted, his onus of proof is discharged on a minimal of proof. – ARIWOOLA J.S.C. Union Bank v. Chimaeze (2014)
⦿ GENERAL DAMAGES ARISES BY INFERENCE OF LAW
On the general damages claimed, it needs not be specifically pleaded. It arises from inference of law and need not be proved by evidence. It suffices once generally averred in the pleadings. As I stated earlier, they are presumed by the law to be the direct and probable consequence of the act of the defendant complained of. Unlike special damages, it is generally incapable of substantially exact calculation. – ARIWOOLA J.S.C. Union Bank v. Chimaeze (2014)
⦿ CUSTOMER – BANKER RELATIONSHIP IS CONTRACTUAL
Furthermore, generally, the relationship of a bank customer and a banker is contractual. In other words, a customer to a bank in relation to the business of banking is any person having an account with a bank or for whom a bank has agreed to collect items and includes a bank carrying an account with another bank. – ARIWOOLA J.S.C. Union Bank v. Chimaeze (2014)
⦿ GENERAL TRAVERSE IS NOT AN EFFECTIVE DENIAL
A general traverse is not an effective denial of essential or material averments in the opposing party’s pleading. – Kekere-Ekun, J.S.C. Union Bank v. Chimaeze (2014)
Union Bank of Nigeria Plc
Mr. N.M. Okpara Chimaeze
➥ LEAD JUDGEMENT DELIVERED BY:
Musa Dattijo Muhammad, J.S.C.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
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.
At the Trial Court, the 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.
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.
➥ ISSUE(S) & RESOLUTION
I. 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.
RULING: IN RESPONDENT’S FAVOUR.
I.A. In affirming the trial court’s award of special damages to the respondent/cross appellant the lower court at page 157 of the record firstly stated thus:- “In reply to the above paragraphs, the appellant made a general traverse to the claim in paragraph 2 of his statement of defense … It is trite law that mere general denials in pleadings are never sufficient traverse and amounts to no denials at all with end result that the particular pleaded fact remains unchallenged and only required minimal evidence or none at all to be admitted as proved by the trial court.”
Notwithstanding the foregoing, the court proceeded at page 158 of the record as follows:- “The respondent pleaded that his solicitors charged him N250,000.00k to prosecute this case for him. He also went further to claim the said sum as special damages in paragraph 25 of his amended statement of claim among his other heads of claim before the trial court. It is therefore my considered view that even if paragraphs 21 and 22 of the appellant’s statement of defence (sic) were denied by the appellant, the respondent has established same by preponderance of evidence before the trial court and I therefore so find.”
The foregoing finding of the lower court given the pleadings and the testimony of PWI, the respondent/cross appellant, as well as Exhibit MOC.7 is unassailable. The N250,000.00k naira claimed was not only specifically pleaded but, from the available evidence, clearly proved.
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.
RULING: IN RESPONDENT’S FAVOUR.
II.A. Not surprisingly, the lower court, in relation to the foregoing findings of the trial court, authoritatively held at page 184 as follows:- “The mere dishonour of a cheque by a banker is injurious to a person in trade. This is the rationale of the award without proof of actual loss. Where a Banker without justification dishonours a customer’s cheque, he is liable to a customer in damages for injury to his credit and if the customer is also a trader then damages for such injury to the customer’s credit will also be at large and the court may award substantial damages although there is no evidence from such a customer of any actual damage suffered by him. …. I agree with the Learned Cross appellant’s counsel that the circumstances of this case warrant a much more enhanced award of damages especially when the court found … that the Cross Appellant was a major distributor to Lever Brothers Nigeria Plc who suspended its credit facilities and with whom he had an annual business turnover of over N50,000,000.00k as distributor in Edo, Delta and Kwara States. Based on the above facts, even without the declining value of the Naira being taken into consideration, which is quite legitimate for a court to take into consideration in appropriate cases and in a proper manner in the award of general damages, the Cross Appellant deservers a much more enhanced damages.”
One cannot agree more with the lower court that where the trial judge ignores facts on record in arriving at the general damages he awards a successful plaintiff, an appellate court is duty bound to interfere by making the estimation the justice of the case demands based on the facts ignored by the trial judge. See Ukoma v. Nicol (1962) NSCC (vol. 2)73. In the case at hand one of the reasons the lower court relied upon in its interference with the general damages the trial court awarded the respondent/cross appellant is the undisputed fact of his being a trader. Award of damages for the dishonour of cheques issued by the respondent who is in fund is sui generis. The very act of dishonouring a trader’s cheque without more, on the authorities, entitles him to substantial damages.
➥ ENDING NOTE BY LEAD JUSTICE – Per
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ SPECIAL DAMAGES REQUIRES PROOF
In Neka B.B.B. Manufacturing Co. Ltd v. ACB Ltd (2004) 2 NWLR (Pt 858) 521 at 540 this Court held on the point thus:- “It is trite law that where the claimant specifically alleges that he suffered special damages he must per force prove it. The method of such proof is to lay before the court concrete evidence demonstrating in no uncertain terms easily cognisable the loss or damages he has suffered so that the opposing party and the Court as umpire would readily see and appreciate the nature of the special damages suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. It should not rest on a puerile conception or notion which would give rise to speculation, approximation or estimate or such fractions.”
➥ REFERENCED (OTHERS)