CASE TITLE: UNION BANK v. NURAFF BUREAU DE CHANGE & ANOR (2024) LPELR-62101(CA)
JUDGMENT DATE: 2ND MAY, 2024
JUSTICES: OBIETONBARA OWUPELE DANIEL-KALIO, JCA
JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA
IBRAHIM ALI ANDENYANGTSO, JCA
DIVISION: LAGOS
PRACTICE AREA: TORT
FACTS:
This pertains to an appeal against the ruling of the High Court of Lagos State at the Ikeja Judicial Division, delivered on February 28, 2019.
The dispute arose from the 1st Respondent’s current account with the Appellant, leading the Respondents to file a writ of summons against the Appellant. They sought various reliefs, including a declaration that the Appellant’s refusal to grant them access to operate their current account was wrongful, illegal, and unconstitutional, along with other orders to ensure the continuation of banking operations and to restrain further interference.
The Appellant, as the Defendant, contested the claims and also counterclaimed.
During the trial, the sole witness for the Respondents was their managing director, while a single witness from the Appellant’s fraud and investigation unit testified for the defense. After receiving final addresses from both parties’ counsel, the trial Judge delivered a judgment on February 28, 2019, in favor of the Respondents, granting their reliefs in a modified form and dismissing the counterclaim.
Dissatisfied, the Appellant appealed.
ISSUES FOR DETERMINATION:
The Court considered:
1. Whether the judgment of the lower Court delivered on February 28th, 2019 is not liable to be set aside in view of the fact that the learned trial Judge wrongfully excluded the original of the letter dated January 16th, 2013 (marked exhibit R1/R2) on the grounds that it is inadmissible after a photocopy of the document had earlier been rejected as evidence?
2. Whether in view of the letter of the Economic and Financial Crimes Commission (EFCC) dated June 18, 2018, the findings of the lower Court could still be said to be valid and sufficient to not occasion a substantial miscarriage of justice to the Appellant?
3. Whether in view of the specific finding of the trial Judge that the Respondent was aware that the cheques issued would not be honored, it was open to the same Court to turn around and rule that the Respondents was defamed by the acts of the Appellant?
COUNSEL SUBMISSIONS:
The Appellant’s counsel emphasized the trial Court’s findings that the Respondents issued dishonored cheques knowing they wouldn’t be honored, intending to initiate litigation. He argued that under Sections 83(3) and (5) of the Evidence Act, such cheques, issued in anticipation of litigation, were inadmissible and should be expunged from the records. He cited the case of HARUNA VS KOGI STATE HOUSE OF Assembly (2010), 7 NWLR (PT 1194) 604, to support his argument. He contended that the trial Court’s decision to award N5 million in favor of the Respondents, based on the same cheques, contradicted its earlier findings.
In response, the Respondents’ counsel argued that the trial Court’s findings regarding the cheques were merely obiter dictum and couldn’t serve as a basis for appeal. He asserted that the Appellant failed to provide sufficient justification for withholding access to the Respondents’ funds and was rightly held liable. It was further claimed that the Respondents suffered damages to their credit and deserved compensation. The counsel urged the Court to consider that the Respondents’ account was active when the cheques were issued and dishonored, citing cases like DIAMOND BANK LTD VS PRINCE ALFRED AMOBI UGOCHUKWU (2007) LPELR-8093 (CA), YESUFU VS ACB LTD 1 ALL NLR (PT 1) 328, TILLEY-GYADO & CO (NIG) LTD VS AC8, BANK PLC (2019) ALL FWLR (PT 1016) 408, and HAIRAT ADERINSOLA BALOGUN VS NBN (1978) ALL NLR 63 in support of his argument.
DECISION/HELD:
In the final analysis, the appeal was allowed.
RATIO:
TORT – DEFAMATION: Whether a party who is aware of restriction on his account can claim damages for defamation on dishonoured cheque in relation to such account
“The award of damages cannot be sustained in view of the clear facts that the Respondents were well aware of the restriction on the 1st Respondent’s account which had not been lifted. The Respondents were not expecting the cheques issued to be honoured and cannot, in good conscience, claim any injury to their reputation. See AROGUNDADE V. SKYE BANK (2020) LPELR-52304 (CA) at 66–67, where NIKI TOBI (JCA), as he then was, stated thus:
The reputation of a person is lowered when there is a reputation in the first place. A person is said to have reputation when he has character and deals fairly with people. This is where, in my view, the fact that the Appellant knew before issuing Exhibit C that his account had been placed on restriction by the bank becomes relevant The Appellant had known since 7/19/10 that his account had been placed on restriction, as evidenced by Exhibit G. When he brought a motion for the unfreezing of his account, the Court refused the same. He knew his account had been restricted since 2010, and he knew the restriction had not been removed, He decided to issue Exhibit C, knowing that it would not be honoured since his account had been restricted. The Appellant did not bring an action to claim that his account was unlawfully restricted but rather for the refusal to honour Exhibits C, D, E and F. While I have held that the refusal to honour Exhibits C, D, E, and F was not justified, I, however, cannot hold that the inscription DAR is defamatory, as the meaning of DAR is not defamatory in all intents and purposes. This is a Court of Justice, and the Appellant long ago knew that his account had been restricted and that effort to have it unrestricted failed, yet went on to give someone a cheque on that account. What is the justice on this in an action for defamation.” Per OYEWOLE, J.C.A.
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