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3PLR/1994/10  (CA)


7 N.W.L.R.PART 356 PG.330








Chief Chidube Ezebilo – for appellant/cross respondent

  1. R. Nduka – for respondent/cross appellant







Lead judgement: Delivered by Adamu JCA

This appeal came up for hearing on 8/3/94 when Chief Ezebilo who appeared for the appellant adopted the appellant’s brief of argument earlier filed on 10/6/93 and urged us to allow the appeal. Mr. Nduka also on behalf of the respondent adopted the respondents brief filed on 29/10/93 and urged us to dismiss the appeal. The appellant’s counsel also made a preliminary objection initially on three grounds but later withdrew his tow grounds of objection and argued only the third grounds of preliminary objection. He referred us to the “appendix” to the respondent’s brief relating to the cross-appeal and submitted that the facts or matter contained in that appendix are fresh facts or matters for which no evidence has been led at the lower court. The learned counsel for the appellant pointed out such new matters or facts introduced for the first time before this court as an appellate court require the leave of the court before they6 are introduced by the cross-appellant. Order 1 Rule 20(3) of the Court of Appeal Rules, 1981, was cited by the counsel in support of his submission. He then finally urged us to disregard the new matters and to dismiss the cross-appeal.

The respondents counsel conceded that the contents of the appendix to their brief on the cross-appeal constituted new facts or evidence introduced at the appellate level which required the leave of the appellate court by the urged the court to expunge the newly introduced facts or matters in the appendix and allow the cross-appeal to stand.

After considering the preliminary objection on the cross-appeal and reply thereto, I agree with the appellant’s counsel that the new facts introduced in the appendix to the cross-appeal required the leave of this court and since such leave had not been applied for and obtained, they should not be allowed. Accordingly I hereby strike them out. With the striking out of the appendix which form the main basis of the cross-appeal, the said cross-appeal cannot stand and should be dismissed. I accordingly also hereby dismiss the cross-appeal filed by the respondent on 17/7/89. I will proceed with the main appeal.

The facts of the case for the purpose of the main appeal and as gathered from the briefs and the record are as follows:-

Sometime in the month of April, 1984, a bank draft for N20,000.00 (Twenty thousand Naira) was drawn in favour of the plaintiff/respondent at Apapa branch of the defendant/appellant’s bank (hereinafter called the “paying bank” The draft was made payable to the respondent at Asaba branch of the appellant’s bank. The respondent deposited the draft in his account at the Bank of Credit and Commerce International Ltd. at No. 107 Upper new Market Road, Onitsha, (hereinafter called “the forwarding bank”) for clearance and collection on 21/5/84. When the forwarding bank forwarded the draft to the paying bank for payment (on a date not specified in the briefs), the said paying bank returned the draft unpaid on the ground that it was not. “domiciled”. The forwarding bank then returned the draft to the respondent (unpaid) sometime in August, 1984. Sometime in September, 1984, the respondent sued the appellant claiming N500,000.00 (five hundred thousand Naira) as damages for dishonouring his draft. After hearing the case and at the end of the trial, the lower court entered judgment in favour of the respondent in the following terms:-

(a). N25,000.00(Twenty-five thousand naira) general damages for dishonouring of the plaintiffs draft by the defendant in addition to the payment of N20,000.00 (twenty thousand naira) the value of the draft to the plaintiff.

(b). N13,200.00 (Thirteen thousand, two hundred naira) as 14% interest on the value of the draft from May 1984 to April, 1989.

The defendant/appellant being dissatisfied with the above judgment of the lower court brought this appeal to this court. Four grounds of appeal were filed on behalf of the appellant with corresponding four issues for determination formulated in the appellant’s brief as follows:-

“(1) Whether the learned trial judge was legally right to have awarded 14% interest on N20,000.00 (Twenty Thousand Naira) the value of the draft to the plaintiff in his judgment when the plaintiff did not claim 14% interest as a relief in his claim or statement of claim.

2(a) Whether the award of N25,000.00 (twenty-five thousand Naira) as general damages and N13,200.00 (thirteen thousand, two hundred Naira) as 14% interest on the value of the draft Exhibit ‘A’ by the trial Judge in his judgment amounted to an award of double compensation to the plaintiff over the same claim.

2(b). If the answer in 2(a) is in the positive, whether it is legally and judiciously right for the trial Judge in his judgment to have awarded double compensation to the plaintiff over the same claim.

(3) Whether the trial Judge was right in holding that the defendant was solely responsible for non-payment of the draft for upwards of 5 years without considering the issue of contributory negligence and or delay on the part of the plaintiff who kept the draft in his possession from August, 1984 to April, 1989.

(4) Whether the trial Judge properly evaluated the totality f evidence given at trial before making his findings and arriving at conclusions in his judgment.”

The respondent’s counsel has also accepted the above-formulated issues as calling for determination n this appeal (see pages 5-6, paragraph 3 of the respondents brief). I therefore take it that the parties are in agreement on the issues for determination and there is no need for this court to reformulate them. I will therefore consider the arguments canvassed on the issues in both briefs in resolution of the said issues and in the determination of the appeal.

On the first issue, it is submitted in the appellant’s brief that it is erroneous in law for the trial judge to award a relief which was not claimed by a party. Reference was made to Ojubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723 at P 744; and Kalio v. Kalio (1975) 2 S.C. 15. It is also pointed out in the brief that the learned trial Judge awarded 14% interest on the value of Exh. ‘A’ (i.e the dishonoured draft) from May 1984 to 17/4/89 – the date of judgment. it is then argued that the plaintiff never claimed the 14% interest as a relief on the dishonoured draft which the trial court so awarded to him. Reference is also made to plaintiffs statement of claim before the trial court where the plaintiff/respondent only claimed N500.000.00 (five hundred thousand naira) against the defendant/appellant being general and special damages for loss suffered by the plaintiff as a result of the defendants negligence. Or in the alternative N500,000.00 (Five hundred thousand naira) being general and special damages for breach of contract. It is further submitted in the appellants brief that where a court makes an award and must set aside. The cases of Hassan v. Maiduguri Management Committee (1991) 8 NWLR (P. 212) 738 at p. 749 (per Okezie J. C. A.) and Ajayi v. Texaco Nigeria Ltd (1987) 3 NWLR (Pt. 62) 577 at 593 are cited in the brief in support of the submission. Finally, this court is urged to allow the appeal on this issue which is consistent with ground 2 of the grounds of appeal.

In response to the above argument and submissions, the respondent’s counsel conceded in their brief that the claim at the trial court was as stated in the appellant’s brief. It is however argued in the said respondent’s brief that the trial court awarded the total sum of N38,200.00 (Thirty Eight thousand, two hundred naira) which was less than the N500,000.0 claimed by the plaintiff/respondent. It is then augured that a court can only be said to award a relief not claimed if what it awards is in excess of what is claimed. According to the respondent’s brief, the sum of N13,200.00 (Thirteen thousand, two hundred naira) interest and should be subsumed under the prayer for N500,000.00 (Five Hundred Naira) . The cases of Ekpenyong v. Nyong (1975) 2 S.C. 71 and Ademola v. Sadipo (1992) 7 NWLR. (Pt. 253) 251 are cited in support of the submission in the respondents brief that a court can award less but not more than the relief sought by a party. The respondent then goes on to urge the court to hold that the trial Judge was right in his award of the total sum of N38, 000.00 (Thirty Eight Thousand Naira) out of the plaintiff’s claim of N500,000.00 (Five Hundred Thousand Naira) as to hold other wise would defeat the interest of justice as held by kalgo J, C. A. in UBA Ltd v. Omololu (1992) 5 NWLR (Pt. 241) 312.

On the above arguments from the briefs on the first issue, the usual manner of ascertaining the actual relief sought by the claimant is by reference to the original claim made by the said claimant at the trial court. Counsel to both parties have agreed to the trite law that the court should not grant a relief which is not claimed by a party or litigant before it. This being so and by reference to both the writ of summons at page 1 of the record in paragraph 12 thereof) the claim is exactly as stated above in the appellants brief and is not controverted in the respondents brief. In other words, the plaintiff/respondent did not specifically claim for any interest similar to that a3warede to him in the judgment of the trial court. On this point I would refer to the principle stated by Agbaje, J.S.C. in the case of Okubule v. Oyagbola (supra) cited in the appellant’s brief at p. 744 as follows:-

“It is trite law that the claim before the court is determined by reference to the claim brought by the plaintiff when there is no counterclaim as it is the case here. it is also the law that a court will not grant a relief which has not been sought for by the plaintiff . See Kalio v. Kalio (1975) 2 S.C. 15. Nor will it award more than the plaintiff is claiming see Ekpenyong v. Nyong (1975) 4 S.C. 71.”

The two cases cited by the learned J.S.C. are also cited in the respondent’s brief. Thus the above principle aptly applies to the present case to render the award of 14% interest which was not claimed by the plaintiff/respondent as erroneous. It would have been proper if the said award were made by way of consequential order in accordance with the rule in Garba v. University of Maiduguri (1968) 1 NWLR (Pt. 18) p. 550 at p. 575 and Okupe v. Federal board of Inland Revenue (1974) 1 All NLR 314 at p. 33o. However in this appeal since it is not stated in the respondents brief that the award of interest was made by the lower court as a consequential order, I have no alternative than to apply the general rule and the main principle and hold that the unsolicited award of interest by lower court to plaintiff/respondent who did not specifically ask or claim for it, even though it may be regarded as a charitable and generous gesture on the part of the said lower court towards the said respondent amounted, in law, to an erroneous award. Consequentially on the authority of Hassan v. Maiduguri Management Committee (supra) cited in the appellants brief this court as an appellant court should not allow such award to stand and must set it aside. I accordingly reject the respondents argument on the issue which I found as having no merit and I hold that the appeal must succeed on the first issue and the corresponding ground (s) of appeal: The appeal should also be allowed for the same reason.

Issue 2(a) and (b) are related and are dealt with together in the appellants brief. The contention here is that the award of N25,000.00 (twenty – five thousand naira) as general damages against the defendant/appellant and N13,200.00 (thirteen thousand two hundred Naira) as 14% interest on the value of the draft (Exhibit ‘A’) for a period of four years and ten months also against the said defendant/appellant amounted to an award of double compensation to the plaintiff/respondent over the same claim. This is said to be erroneous in law in the appellants brief and should not be allowed. The case of Agada v. Oto -Basin (1961) 1 All NLR 299 is cited in support. It is argued that the sum of N25,000.00 was awarded to the respondent as damages for loss of profit which he would have made as a business man if he had invested the value of the draft into his business and if the said draft had been paid to him on demand. In addition the sum of N13,200.00 (thirteen thousand, two hundred naira) was also awarded to the said respondent as 14% interest on the value of the draft for a period of four years if he had deposited the said value of the draft in his own account had he been promptly paid the said draft on demand. It is argued in the appellant’s brief that there is no possible way by which the respondent could if paid the value of the draft invest it in his business and at the same time deposit it in his account in order to yield interest. Thus, the two awards made by the trial court should have been in the alternative rather than cumulatively as was done by the lower court. It is submitted that this cumulative award on a single claim amounted to a double compensation which is erroneous in law. It is also submitted in the appellants brief that a plaintiff who has been adequately compensated under a particular head of damages would not be allowed to benefit under another head in respect of the same claim. The following case are cited in support of the submission:

(1). Ekope v. Fagbemi 91978) 3 S.C. 209

(2). L.C. v. Unachukww (1978) 3 S.C. 199

(3) Fed. Housing Authority v. Horst Sommer AND 2 Ors. (1986) 1 NWLR (Pt. 17) 533.

Reference is also made in the said brief to page 68 of the record of proceedings where the trial judge stated that he awarded the interest as “part of the measure of damages on a dishonored demand draft. it is finally submitted that since the plaintiff/appellant has been adequately compensated by the award of N25,000.00 (twenty-five thousand naira) under general damages, the award to him of a further sum of N13,200.00 (thirteen thousand, two hundred naira) as 14% interest and as part of the measure of damages on the same claim was contrary to the rule against double compensation and must be set side or disallowed on the authority of Ezeani v. Ejidike (1964) All NLR 402.

The respondent’s reply on this issue of double compensation is contained in pages 7-8 of the respondents brief. According to the respondent, a double compensation arises where a party who is adequately compensated under one head of damages granted by the court is against granted another award under another head. The case of Ehorlor v Idahosa (1992) 2 NWLR (Pt. 223) p. 323 is cited in the respondents brief in support of this submission. It is however to be pointed our that the respondent’s counsel who prepared the brief cited a wrong page-instead of page 323 of the report which is the correct page number, the brief gave page 33 (see the last line of page 7 and the 1st line at page 8 of the said brief). This may be overlooked but with a reminder on counsel on the need for accuracy in citation of cases and the need to assist rather than mislead the court. The substance of the argument in the respondent’s brief on the issue is that the trial court in making the two awards to the plaintiff/respondent did so under two heads of damages namely, negligence in dishonouring the draft (Exh.’A’) and wrongful detention of the period of 4 years and 10 months. Reference was made to the relevant portion of the judgment of the said lower court where the reasons for the two awards are expressly stated – the number of the page in the record where this is contained is however not supplied in the brief.

After considering the submission of both parties from the briefs on this second issue which is on the award of double compensation, I feel inclined to agree with the appellant’s submissions and argument on the issue. It is clear from the record of proceedings that the purpose of awarding the 14% interest which was dealt with first in the judgment of the lower court (at page 68 of the proceedings) was as follows:-

“……and I propose to make an award of 14% interest per annum in respect of this draft for the four years and ten months the N20,000.00 was unlawfully detained by the defendant. The plaintiff filed this action since September, 1984 immediately after the defendant’s dishonoured and returned Exh.’A’. I find it strange that from that time until now the defendant did not bother to mitigate the issue of interest on the amount by either paying the N20,000.00 involved to the plaintiff or paying the same amount into court for collection by the plaintiff. I award the plaintiff as interest in respect of this draft for the said four years and ten months from the month of May, 1984 to this day the sum of N13,200.00”.

On the award of N25,000.00 to the plaintiff/respondent as general damages, the learned trial Judge held in his judgment (at pages 70-71) of the proceedings as follows:-

“……..Upon an anxious consideration what may be regarded as an appropriate award to the plaintiff taking all the circumstances of this case into account and bearing in mind that his money was unlawfully tied down by the defendant for five years, it seems to me that the end of justice will be met if I make an award of N25,000.00 to the plaintiff who is a person admittedly in business”.

It is clear from the above quotation from the judgment of the lower court that the purpose of making the two awards to the plaintiff/respondent was to compensate him for the loss that he had suffered as a result of the non payment of the draft (or its dishonour) by the defendant/appellant over the period of four years and ten months (or the maximum period of five years as per the second quotation). The phrases “unlawfully detained” or “unlawfully tied down” respectively used in the two statements relating to the awards also indicate that they are meant for the same remedy (i.e. compensation for loss suffered by the plaintiff/respondent) I also agree with the contention of the learned counsel for the appellant in the brief that there is no foreseeable way in which the plaintiff/respondent could, if he had been promptly paid the draft, have invested it in his business man and at the same time deposited the same amount into his account during the same period in order to yield to him the 14% interest he was awarded. It has been held by this court in the case of BASF Ltd. v. Odutola Ltd (1994) 1 NA CR 45 at p. 51 that although general damages normally need not be proved where an award of interest is to be made such should be based on evidence and that:

“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive ……… should be such as may fairly and reasonably be considered either as arising naturally i.e. according to the usual course of thing, from such breach of contrast itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made their contract as the probable result of the breach of it -Hadley v. Baxendale (1854) 9 Exh.301 at p.354 (Per Alderson B)”.

If we apply the above principle to the two awards made by the lower court, it is apparent that apart from being a double compensation to the plaintiff/respondent and punitive to the defendant/appellant only one of the award can be said to be reasonably within the contemplation of the parties at the time of their banking transaction when the draft was purchased from the defendant/appellants and given to the plaintiff/respondent for his services rendered to the buyer of the said draft. I also reject the contention in the respondents briefs and the judgment of the lower court to the effect that the appellants could have minimised the losses by paying the respondent the amount of the draft immediately or within a reasonable time. The said appellant could not have effected the payment when the draft had been in the possession of the respondent. What then would be the basis of their payment? It could only have resulted in the admission of their liability towards the respondent which as we have seen they did not do throughout the proceedings at the lower court. Also take action admitting liability at the trial court would have entailed the court entering judgment in favour of the said respondent for the amount claimed or the amount deposited. In view of the above points I hold that the second issue also must be resolved in favour of the appellant. The appeal must also succeed on that issue and the relevant grounds of appeal. On the authority of Ezeani v. Ejidike (supra, cited in the appellants brief) such an award should be disallowed. I accordingly hereby set aside the first award (i.e. the 14% interest) of N13,200.00 made to the respondent by the trial court sou motu which as we have seen in relation to the 1st issue, is a relief that was not specifically claimed by the said respondent.

The third and fourth issues are dealt with together in the appellants brief. The two issues argued together are:

(a) The defence of contributory negligence on the part of the respondent which was said to be open to the appellants but which was not considered by the trial/lower court; and

(b) the conclusion reached by the said trial/lower court in holding the appellants liable to the respondent was not based on proper evaluation of the evidence adduced before him. I will consequently deal with the two issues separately.

On the third issue and from the facts which are listed as not being in dispute as well as the reference made to averments of some banking experts who gave evidence at the lower court was caused by the originating bank which is the Apapa branch of the appellant’s bank. This originating bank refused or neglected to indicate the originating branch or “domicile” of the draft and that was why the Asaba branch (also the appellant bank) refused to honour it on presentation by the forwarding bank. It is stated in the record that it is the duty of the originating bank to indicate its branch or domicile on the draft. The negligence in this case therefore arose from the failure of the appellants (Apapa branch) to perform its duty. How then can the plaintiff/respondent be said have contributed in that? At the time the draft was dishonoured and returned to the respondent the act of negligence complained of had already taken place. The respondent is also not a banking expert and even if he is he owes no duty to act as suggested in the brief by taking steps to amend an error ex facie the draft for which he was not responsible, It is therefore my humble view that at that initial staff when the draft (Exhibit’A’) was presented to Asaba branch of the appellants bank, it was the duty of that on seeing that the said draft was otherwise genuine apart from the absence of the ‘domicile’ or name of the originating bank (being also another branch of the appellants bank ) to enquire and ascertain the said ‘domicile’ in order to save their bank from possible liability. I agree with the view in the remaining part of the appellants brief whereby it is argued that the prolonged delay of 4 years and 10 months or five years was not solely by the defendants/appellants because the draft had not been returned to it for payment but was kept by the plaintiff/respondent (as shown in the record) until it was tendered as Exhibit in court. It is my humble view that if the respondent wanted to use it for a court case he could have reproduced its photocopy (which could still be accepted to the court in certain circumstances) and either it to the paying bank upon knowing from his bankers the reason for the dishonour of the draft. I think that measure could have reduced the prolonged period to a minimal. The question now is did the retention of the draft by the respondent after it had been dishonoured and returned to him (through his bankers) by the appellant amount to a contributory negligence on his own part. The obvious answer upon consideration of the length of time for the delay in payment which was the basis of the award by the lower court, must be in affirmative. On normal course of banking transactions and if the respondent had taken further measures to recover his money it would not have taken him more than the maximum period of six months to get his payment. It is pertinent here to refer to the argument in the respondents briefs that the appellant is barred from raising this issue of contributory negligence before this court because it was not part of his pleadings at the trial court. I wish to state that the case of Oyewunmi v. Ogunesan (1990) 3 NWLR (Pt.137) 183 cited in the said respondents brief does not apply because it is expressly averred in paragraph 1 of the statement of defence (see page 7 of the record) that the defendants “shall rely on all legal and equitable defences open to them but not specifically pleaded”. Paragraph 10 also stated that since the draft was dishonoured by the appellant and sent to the forwarding bank the said forwarding bank did not return the draft again. In the result I hold that the defence of contributory negligence is open to the appellant and I will assess their liability in dishonouring the respondent draft as 50% of the surviving head (s) of damages awarded to the respondent by the trial lower court. I will apply the above rate or ratio at the end of this judgment to the damage(s) awarded by the lower court to the respondent which survive after considering the fourth issue for determination.

As stated earlier the complaint on the fourth issue is that the learned trial Judge of the lower court did not properly evaluate the evidence before him before he arrived at his decision in the present case. In the appellants brief the issue is argued under two arms (or subheads: (a) and (b). Under the first arm it is contended that the trial Judge did not consider the fact that the plaintiff/respondent kept the dishonoured draft in his possession and failed to take any necessary step to collect its value from August, 1984 to 17th April, 1989 a period of 5 years. It is submitted that if the trial Judge had considered that fact he would not have held as he did that under the circumstances of the case the money of the said plaintiff/respondent was unlawfully tied down for five years and he was therefore entitled to an award of N25,000.00. Under the second arm reference was made to page 29 paragraphs 5 (the testimony of PW1) where the witness was quoted as saying that after Exhibit ‘A’ was returned to their bank (the forwarding bank) they did not hear again from the Asaba branch of the defendant/appellants bank who had returned it to them even after they (i.e. the forwarding bank) sent two letters of reminder to them. It is further submitted in the appellants brief that the defendant/appellant denied receiving any reminder as claimed by the witness and upon cross-examination, the said witness (PW 1) contradicted his earlier by saying that when they received Exhibit ‘A’ unpaid, they did not contract the Asaba branch of the defendant/appellant’s bank on the issue because they only owe responsibility towards the plaintiff/respondent and not to the Asaba branch of the said defendant/appellant’s bank. This contradictory statement is contained at page 32 paragraphs 10-15 of the record. It is then pointed out in the appellants brief that if the trial Judge had considered the two contradictory statements by the witness he would have arrived at a different conclusion and decision in the case by dismissing the claim of the plaintiff/respondent. The case of Romonu Atolage v. Korede Olayemi Shorun (1985) 1 NWLR (Pt.2) p.360 is cited in the said brief in support of the submission. It is the evaluation of the evidence by the trial court especially when the findings of facts made by the latter are perverse or a misapprehension of facts. In conclusion, we are urged to allow the appeal and set aside the judgment of the trial lower court.

The reply to the above issue in the respondents brief is very short. After agreeing that an Appeal Court can interfere in the trial courts findings of facts where that is perverse or not a result of proper exercise of discretion (see Udofia v. State (1984) 12 S.C.139 at Pp.176-177), it is argued that there was no material contradiction in the evidence of the witness (i.e. PW 1) as stated in the appellants brief. Then the finding of facts made by the trial court cannot be said to be perverse or improper. Even if there is any contradictions they are not such as would vitiate the findings of facts made by the court.

The first arm of this fourth issue is only a repetition of the submission made in relation to the third issue on contributory negligence. I think I have adequately dealt with it under the third issue whereby I held the respondent as 50% contributory negligent in his withholding the draft for the most part of the period under consideration without taking any action to recover his money. Furthermore in view of paragraphs (b) to (d) of the admitted facts which are not in dispute and listed in relation to issues three and four in the appellants brief (page 8), it is clearly shown that the draft in question was dishonoured by the paying bank because it was not domiciled and it was sent back to the forwarding bank after two months from the date it was received. These averments are to my mind admission of liability on the part of the appellant firstly for the dishonour of the draft because it was not domiciled, as I have earlier stated, by their Apapa branch who issued it and secondly for keeping the said draft for about 2 months before returning it to the forwarding bank. For these reason I will resolve the first arm of the argument on the fourth issue in favour of the respondent in this case.

On the second arm of the fourth issue it is pertinent to recapitulate the general rule as well as the exceptions as regards the attitude of the appellate court towards the findings of fact made by the trial court and its evaluation of evidence of the witnesses before the said trial court. It has been mutually accepted by both parties and it is in fact the general rule that the appellate court does not normally interfere with such findings of fact by the trial court. The exception which is also stated in both briefs is where such findings or evaluation by the trial court has led to a perverse decision. The rule and the exceptions have been pronounced and resounded in a number of decided cases including Adeyeye AND 1 Ors v. Ajiboye AND Ors (1987) 7 SCNJ p. 1 at p.19; (1987)3 NWLR (Pt.61)432 (Per Uwais, J.S.C.) Okori Nwaezema AND ors v. Obeta Nwaiyeke AND Ors (1990) 5 SCNJ p.155 at p.163; (1990) 3 NWLR (Pt.137) 230 (on evaluation of evidence by the appellate court-principles thereof); and Mrs. Jarin Adegbite v. Chief M.K.Ogunfaolue AND 1 Or (1990) t SCNJ 111 at p.121; (1990) 4 NWLR (Pt.146) 578. In Adegbite v. Ogunfaolue (supra) the Supreme Court (Wali, J.S.C.) quoted with approval the statement of Omo, J.C.A (as he then was) in Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt.93) 215 as follows:

“Ideally, the learned trial Judge should have considered all the issues raised and made findings of facts on them vide Okpiri AND v. Jonah AND Ors (1961) 1 All NLR 102. The consequences of such failure however vary. If such findings are crucial and necessary for a decision of the case, then failure to make them can result in either a non-suit or dismissal. It is otherwise if the findings are not necessary for a proper decision….”.

With the above test as our yardstick, we can consider how crucial and important is the contradictory statement of PW 1 which is the subject of the appellants complain to the decision of the trial court. It should be pointed out also that the contradiction was only in relation to the evidence of one witness and it was elicited upon at cross-examination. This is different from a case where two witnesses gave two contradictory versions (as in Ikem v. State (1985) 1 NWLR (Pt.2) p.378. In this type of situation such a contradiction can only weaken or discredit the evidence of the witness and the court can disregard it especially where there is no other witness who testified to support either of the two versions. Again, on the importance of the piece of evidence complained of in the appellants brief, the contradiction relates to what had taken place subsequent to the actual act that constituted the tort (i.e. it shows the period of delay in payment to the respondent of the value of the draft). In other words the action constituting the tort of negligence on the part of the appellants was in the failure of the Apapa branch to indicate its domicile on the draft and the refusal of the Asaba branch to pay the said draft on presentation (upon seeing it emanating from one of its branches). If there is any security measure to follow to ascertain the genuineness of the draft that should be the internal affair or arrangement of the appellants bank whose branches should have been made acquainted with the signatures of stamps of one another in order to avoid embarrassment and possible liability towards or from their customers. Thus, the Asaba branch of the appellants bank should have taken the measures for ascertaining the domicile of the draft in question instead of or before returning it to the drawer unpaid.

It is therefore my humble view that although there was a contradiction in evidence of P.W.1 such contradiction is not material in nature as to have led to a perverse decision as alleged in the appellant’s brief. In the recent case of Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR (Pt.319) 143, this court (Kaduna division) has defined what amounts to a perverse decision. In that case Achike, J.C.A. cited the Supreme Court’s decision in Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 at 375 where the court held:

“Perverse simply means persistent in error different from what is reasonable or required against the weight of evidence. A decision may be perverse where the trial Judge took into account matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious”.

In the present case the alleged error or contradiction was as regards the evidence of one witness on a matter that was subsequent to the actual commission of the tort and it is not shown in the brief either that the trial Judge had relied solely on the testimony of that witness or he had other evidence upon which he based his decision. The contradiction is only important in the assessment or computation of the damages due to the plaintiff/respondent but does not affect the appellants in their main liability for the tort of negligence which from the admitted facts was initiated by the acts of the defendants/appellants (i.e. Apapa and Asaba branches). I am therefore of the view that perversity has not been proved in the appellant’s brief as required by the law to warrant our interference. See also the principles followed by appellate court in reviewing the findings of facts by the trial court in Nwokoro v. Nwosu (1994) 4 NWLR (Pt.337) 172 at p.187-188 (a decision of this court (Port Harcourt per Onalaja, J.C.A.). I will finally resolve this second arm of the fourth issue also in favour of the respondent. Thus the whole of the fourth issue as formulated in the appellant’s brief has failed.

In the result this appeal succeeds on the first to third issues and their relevant grounds of appeal as formulated in the brief of the appellant. These issues deal with

(a) a party (i.e. the respondent in this case) given a relief which he had not claimed or asked for -the 14% interest;

(b) double compensation awarded to the respondent by the trial court; and

(c) contributory negligence of the plaintiff/respondent in withholding the draft which I assessed as 50% of the damages awarded to him.

As regards the 4th issue and the omnibus grounds of appeal, the appeal has failed. Consequently, I allow the appeal as indicated above on issues 1-3 and the relevant grounds of appeal (i.e. grounds 2-4). I hereby set aside the judgment of the lower court as well as it order awarding the respondent 14% interest over the period of 5 years which amounted to N13,200.00. In its place, I hereby order that the said plaintiff/respondent should be awarded only 50% of N25,000.00 which was awarded to him as general damages by the lower court (this amounts to N12,500.00 plus the value of his dishonoured draft (Exh.’A’) which is N20,000.00. Altogether the respondent is entitled to N32,500.00 I also award N1,200.00 cost in favour of the appellant for both the cross-appeal and for the main appeal.

Cases referred to in the judgment:

Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578

Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432

Akubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723

BASF Ltd. v. Odutola Ltd. (1994) 1 NACR 45

Ekpenyong v. Nyong (1975) 5 S.C. 71

Ezeani v. Ejidike (1964) All NLR 402

Garba v. University of Maidugiri (1986) 1 NWLR (Pt. 18) 550

Hassan v. Maiduguri Management Committee (1991) 8 NWLR (Pt. 212) 738

Ikem v. State (1985) 1 NWLR (Pt. 2) 378

Kaduna textiles Ltd v. Umar (1994) 1 NWLR (Pt. 319) 143

kalia v. Kalio (1985) 2 S.C. 15

Nwaezema v. Nwaiyeke (1990) 3 NWLR (Pt. 137) 230

Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) 187

Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt. 93) 215

Okpiri v. Jonah (1961) 1 SCNR 174

Okupe v. Federal Board of Inland Revenue (1974) 1 All NLR 314

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