Suit Number:SC.164/2004
Judges:CHRISTOPHER MITCHELL CHUKWUMA-ENEH JSC (Presided) SULEIMAN GALADIMA JSC MUSA DATTIJO MUHAMMAD JSC CLARA BATA OGUNBIYI JSC STANLEY SHENKO ALAGOA JSC (Read the Lead Judgment)
Counsel:M.I. Hanaf, Esq. (with him, D. T. Nwachukwu, S. S. Umoru and S.
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Q. Giwa) - for the Appellant.
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Sheni lbiwoye, Esq. [with him, Theophilus Okwute and Jessikan C
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Name (Miss)] - for the Respondent.
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ALAGOA JSC (Delivering the Lead Judgment): This is an appeal against the judgment of the Court of Appeal, Ilorin Division in appeal No. D CA/IIJ42/2000 delivered on 10 December 2001 which allowed the appeal
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of the present respondent against the judgment of the High Court of Kwara State in suit No. KWS/188/91 delivered on 21 December 1999. The facts of this case as presented before the High Court are that the present appellant
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who was plaintiff was a customer of the respondent and lodged a bank E
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draft/cheque in the sum of N467,000.00 (four hundred and sixty-seven
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thousand) to open a fixed deposit account with the respondent. The terms upon which the account was opened are best captured by recourse to paragraphs 4 and 5 of the further amended statement of claim at page 32
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of the record of appeal as follows:
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Paragraph 4 - By an agreement partly oral and partly written F
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entered into by the plaintiff and the defendant in or about August, 1989, the defendant at its florin branch opened for the plaintiff a fixed deposit account No. 70-100029.
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Paragraph 5 - Among other things, it was a term of the agreement that: G
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The deposit account shall initially attract an annual interest of 12.25%. The annual interest shall be payable at the end of every month from the date of the deposit into the account
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and credited directly to the plaintiff’s Current Account H
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No. 36-180369M with the defendant.
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The duration of the account was to be 12 months with liberty to the plaintiff after giving notice to the defendant
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to withdraw any amount from the deposit in the account for the purposes of its business during the currency of the agreed period of deposit. Interest would only be paid on any amount standing to the credit of the account at the end of every month. v. Interest payable on the deposit could be reviewed
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upwards from time to time to any rate agreed by the
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parties after negotiation.
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vi. The account could be renewed for another period of time at the expiry of the first year of deposit.
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Other facts germane to this case and as contained in the further
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amended statement of claim are that pursuant to the agreement, the plaintif
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(now appellant) by its letter dated 12August 1988 authorized the defendant (respondent) to transfer the sum of N467,000.00 (four hundred and sixty- seven thousand naira) into the deposit account. In reply to the plaintiff’s said letter of 12 August 1988, the defendant by its letter dated 15 August
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1988 confirmed to the plaintiff the opening of the deposit account and the
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agreed rate of 12.25% per annum. In its letter dated 31 October 1988, the plaintiff (appellant) gave notice to the defendant (respondent) of its intention to withdraw the sum of N467,000.00 (four hundred and sixty-seven thousand naira) from the deposit account for the purposes of procuring
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for sale, some second hand Peugeot vehicles.
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In response to the plaintiff’s said letter, the defendant’s IIorin branch,
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in its letter dated 31 October 1988 refused to accede to the plaintiff’s request on the ground that they had received, directive from their head office to stop payment on the account because the Central Bank of Nigeria (CBN) cheque
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No. 009661 for N471,548.44 (four hundred and seventy-one thousand, five
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hundred and forty-eight naira, forty-four kobo) with which the proceeds were
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transferred into the account was in dispute. The plaintiff (appellant) stated that the sum of N467,000.00 (four hundred and sixty-seven thousand naira) paid into the deposit account was transferred from the plaintiff’s current account with the defendant at its I1orin Branch and not by any CBN cheque. The
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plaintiff (appellant) averred in paragraph 37A of the further amended
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statement of claim that the defendant (respondent) has wrongfully detained and still detains the plaintiff’s (appellant’s) money in its deposit account, the value of which is N467,000.00 (four hundred and sixty-seven thousand naira) plus interest thereon from August, 1988 till date by reason whereof
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the plaintiff has suffered damage and in paragraph 38 of the further amended statement of claim, the plaintiff (appellant) claimed as follows:
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i Declaration that the failure or refusal of the defendant to allow the plaintiff to withdraw from its deposit account No. 70-100-
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029 constitutes a breach of contract and the plaintiff’s A
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constitutional right to its property and is therefore wrongful and illegal.
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An order, directing the defendant to release to the plaintiff, the principal sum of N467,000.00 (four hundred and
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sixty-seven thousand naira) deposited into the account plus B
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interest at the rate of 12.25% per annum from August, 1988
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till November, 1989.
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An order, directing the defendant to pay the plaintiff by way
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of special damages, additional interest calculated at the rate of 25% or any other rate found due by the court on the
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principal sum plus accrued interest from December, 1989 till C
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the date of judgment.
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An order, directing the defendant to pay 10% interest on whatever sum is adjudged due to the plaintiff from the date of judgment till liquidation. An order, directing the defendant to pay to the plaintiff, the D
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sum of N20,000,000.00 (twenty million naira), representing general damages suffered by the plaintiff as a result of the failure of the defendant to allow the plaintiff to withdraw money from the deposit account and/or as damages for
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breach of contract and/or for the wrongful detention of the E
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plaintiff’s money since 1988 to date.
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The defendant (respondent) went on to file a statement of defence which was subsequently amended and the matter proceeded to be heard at the end of which judgment was given in favour of the plaintiff (appellant),
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the learned trial judge holding that the defendant (respondent) had wrongfully detained the plaintiff’s (appellant’s) funds and ordered a refund of the deposit F
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made by the plaintiff (appellant) with interest at the rates which varied from the 12.25% per annum agreed by the parties to 25%. The sum of N2,000,000.00 (two million naira) was also awarded as damages in favour of the plaintiff. The defendant appealed successfully to the Court of Appeal,
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Ilorin Division. This is a further appeal from that court (hereinafter referred G
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to as the lower court), by the aggrieved plaintiff (hereinafter referred to as the appellant) to the Supreme Court. However, in order to properly institute this appeal, the appellant brought an application on notice at the court below pursuant to section 233(3) of the Constitution of the Federal Republic of
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Nigeria, 1999 and Order 3, rule 3(1) of the Court of Appeal Rules and under H
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the inherent jurisdiction of that court for leave to appeal to the Supreme Court
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against the judgment of that court delivered on 10 December 2001 on grounds other than grounds of law on the grounds that the grounds of appeal
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contained grounds of law, fact and mixed law and facts. This application having been granted, the appellant filed a notice of appeal dated 17 January 2002 at pages 289 - 294 of the record of appeal consisting of eight grounds of appeal itemized hereunder shorn of particulars:
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Grounds of appeal
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1. The learned Justices of the Court of Appeal erred in law when they held as follows:
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“From the totality of the facts of the case, it is my view that the relationship that existed between the parties in the instant case on appeal was emphatically that of
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banker and customer which said relationship is founded
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on contract and nothing more. It is trite law that where
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a banker refuses to pay a customer’s cheque when the banker holds in hand an amount equivalent to that endorsed on the cheque belonging to the customer, such an act of refusal to pay amounts to a breach of
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contract.” The learned Justices of the Court of Appeal further erred in law when they held that:
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“It follows therefore that when the respondent demanded for the payment of its deposit and the
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appellant refused to comply, the appellant committed a breach of its contract with the respondent and I also
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hold. I therefore do not agree that the action of the appellant in refusing to pay up the deposit as previously agreed between the parties amounts to both a breach
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of contract and commission of the tort of detinue as
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canvassed by the learned SAN for the respondent.” The learned Justices of the Court of Appeal misdirected themselves when they held thus:
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“From the passages quoted supra, it is very clear that the trial court never found that the respondent had two
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causes of action - one in contract and another in detinue. Rather, the judge was emphatic throughout his judgment
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including the assessment of damages due to the respondent, that the action is founded in detinue. This is a clear finding of fact by the lower court which the
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respondent has not challenged by way of a cross-appeal. Even though it is clear from the pleadings and evidence
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of the respondent and address of counsel that the respondent was claiming both in contract and detinue,
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that is clearly not what the trial court found. It is my A
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considered view that without a cross-appeal challenging the copious findings of the trial court on the issue of the action being grounded on detinue alone, the learned SAN cannot legally be heard submitting in the contrary to this
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court. In other words, in view of the above findings of B
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the learned trial judge, the judgment of the court can
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only stand if the relationship between the parties is founded on detinue as decided therein since the issue
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of the cause of action being also on contract is not properly before this court being the Court of Appeal.”
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The learned Justices of the Court of Appeal erred in law in C
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setting aside the general damages of N2,000,000.00 (two million naira) awarded in favour of the appellant when there was no valid legal grounds canvassed by the respondent to justify the action and this led to a grave miscarriage of justice against the appellant. D
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The learned Justices of the Court of Appeal erred in law by holding that.
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“The position of the law being what it is, it follows that the award of N2,000,000.00 (two million naira) damages
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in addition to the deposit of N467,000.00 (four hundred E
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and sixty-seven thousand naira) with interest thereon at
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the rate of 12.25% per annum from 1989 to December, 1989 minus the months of August and September, 1988 already paid in an award in contravention of the principle
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of law governing award of damages in cases of breach
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of contract as reproduced supra. That being the case, F
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it is my view and I agree with the learned counsel for the appellant that the award of the said N2,000,000.00 (two million naira) damages under the circumstances amounts to double compensation which is frowned upon by law.
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That being the case, it is my view that the said damages G
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of N2,000,000.00 (two million naira) be and is hereby set aside and issue No. 2 is resolved in favour of the appellant.”
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The learned Justices of the Court of Appeal totally misdirected
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themselves when they held thus: H
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“Paragraph 5(v) in particular provides that the interest
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payable on the deposit could be reviewed upwards from time to time to any rate agreed by the parties after
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negotiation. This provision clealy show s that it is not mandatory but permissive. To my mind, it is the same as saying that the interest payable on the deposit may be reviewed upwards etc. from the agreed 12.25 % per annum. That being the case, it is my view that until that is done by negotiation, the agreed rate of 12.25 % per annum will continue to govern the transaction between
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the parties. There is no provision to the effect that were a party refuses to negotiate the upward review of interest payable, the other party can unilaterally impose a rate of
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interest on the other simply because the contract between
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the parties did provide for a permissive upward review
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of the rate of interest as in the present case.The principle of sanctity of contract enjoins us to deal carefully with the agreements as reached by the parties.
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In the present case, there is no doubt that the
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appellant is entitled to interest, the issue is at what agreed rate? From the totality of the facts before the lower court, the only rate of interest agreed by the parties to the transaction is 12.25% per annum and I am of the firm view that any award above that rate is contrary to what was agreed and therefore invalid.
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I agree with the learned counsel for the appellant
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that it does not matter whether lending rate rose to 200% in some banks, the parties are bound by their agreement in so far as no negotiation took place
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between them to review upwards, the agreed rate of
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interest of 12.25% per annum.” The learned Justices of the Court of Appeal further erred in law by holding that:
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“That apart, the respondent pleaded in paragraph 27 of the further amended statement of claim - the second
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statement thereof which was not admitted by the appellant; that it shall lead oral and documentary
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evidence of the regime of interest on deposit in commercial banks in Nigeria over the period of 1988 to 1994 and deregulated interest rates on deposits of the
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period of 1991 to 1993 in particular - emphasis supplied. There is no evidence on record that the interest on deposit
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as pleaded is the same as lending interest as testified to by DW1. Obviously, they cannot mean the same thing
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without evidence to that effect. In effect, it is my view A
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that issue No. 3 be and is hereby resolved in favour of the appellant. Consequently, any award of interest made by the learned trial judge over and above the agreed rate of 12.25% per annum for the period covered by
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the rates of interest already is set aside.” B
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The judgment is against the weight of evidence.
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From these grounds of appeal, the appellant in its brief of argument dated 30 November 2004 and filed on 2 December 2004 formulated the following two issues for determination by the Supreme Court:
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Whether the court below was right in holding that the relationship between the appellant and the respondent was C
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based only on contract and there was no element of detinue involved in the matter and thereby setting aside the award of damages of N2,000,000.00 (two million naira) awarded in favour of the appellant by the trial court.
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Whether the court below was right insetting aside the interest D
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awarded by the trial court and in holding that the appellant was only entitled to 12.25% interest on the fixed deposit notwithstanding the fact that it was the respondent that refused for 11 years to negotiate upward review of the interest with
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the appellant. E
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The respondent for its part distilled in the respondent’s brief of
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argument dated 24 January 2005 and filed same day, the following three issues for determination by this court:
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Whether the court below was right to hold that the appellant’s
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action is founded in contract and not in the tort of detinue.
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Whether the Court of Appeal was right to have set aside the F
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award of N2,000,000.00 (two million naira) damages made by the trial court.
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Whether the appellant was only entitled to interest at the originally agreed rate of 12.25% per annum on the fixed deposit account. G
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This appeal came up to be heard on 6 November 2012. M. I. Hanafi leading D. T Nwachukwu, S. S. Umoru and S. O. Q. Giwa as counsel for the appellants adopted and relied on the appellant’s brief of argument and urged this court to allow the appeal and set aside the judgment of the
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lower court. H
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Sheni Ibiwoye appearing with Theophilus Okwute and Jessikan
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Nanle (Miss) as counsel for the respondent also adopted and relied on the respondent’s brief of argument and urged us to dismiss the appeal.
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What is apparent at a glance is that issues 1 and 2 in the respondent’s brief of argument have been encapsulated and conveniently dealt with as issue 1 in the appellant’s brief of argument while issue 2 in the appellant’s brief of argument is same as issue 3 in the respondent’s brief of argument while issue 3 is to my mind, to be preferred for its brevity and clarity. What then emerges as the issues for determination by this court are issue 1 in the appellant’s brief of argument and issue 3 in the respondent’s brief of
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argument. Put more simply and clearly, the two issues for the determination of this appeal which indeed are issues formulated by the appellant and respondent themselves with slight modifications are as follows:
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Whether the court below was right in holding that the
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relationship between the appellant and the respondent was
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based only on contract and in setting aside the award of N2,000,000.00 (two million naira) damages in favour of the appellant by the trial court.
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2. Whether the appellant was only entitled to interest at the
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originally agreed rate of 12.25%per annum on the fixed deposit account.
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This slight reformulation of issues for determination by an appellate court is permissible in order to give precision and clarity to the issues: Unity Bank Plc v. Edward Bouari (2008) All FWLR (Pt. 416) 1825,
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E (2008) 7 NWLR (Pt. 1086) 372, (2008) 2 - 3 SC (Pt. 11) 1; Okoro v. The
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State (1988) 12 SC 191, (1988) 5 NWLR (Pt. 94) 255; Latunde and Anor
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v. Bello Lajinfin (1989) 3 NWLR (Pt. 108) 177, (1989) 5 SC 59;
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Awojugbagbe Light Industries Ltd v. Chinukwe and Anor (1995) 4 NWLR (Pt. 390) 379, (2004) All FWLR (Pt. 229) 943; Ogunbiyi v. Ishola (1996)
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5 SCNJ 143, (1996) 6 NWLR (Pt. 452 ) 12.
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I now propose to consider the issues for determination serially. Issue1
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is whether the court below was right in holding that the relationship between the appellant and the respondent was based only on contract and in setting aside the award of N2,000,000.00 (two million naira) damages in favour of the appellant by the trial court. The appellant has submitted in its brief of
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argument that a careful reading of the pleadings of the appellant shows that the
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appellant’s case is based on two causes of action namely, breach of contract and the tort of detinue and this fact is appreciated by the respondent by a reading of the amended statement of defence. References were made to paragraphs 6 - 22, 27 - 33 of the further amended statement of claim at pages
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33 - 36 of the records which are said to bear out clearly the issue of breach of contract while paragraphs 4 - 25 of the further amended statement of defence
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at pages 45 - 47 also bear out the issue of breach of contract: on the issue of detinue, the appellant contends that paragraphs 22, 29, 34, 37A and
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38(v) of the further amended statement of claim support that cause of A action while paragraphs 2, 13 and 40 of the further amended statement of defence support the issue on detinue. The appellant submitted that a plaintiff could found his claim on more than one cause of action. In other words, a plaintiff could claim in contract and in tort at the same time and where he
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succeeds, he will be entitled to all the reliefs he has established. It is not B
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the law, appellant maintained that a plaintiff who claims in contract cannot
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rely on other causes of action like detinue or conversion. Reliance was placed on Balogun v. N.B.N. (1978) 3 SC 155 at 173; Allen u London Country & Westminister Bank (1915) TLR 310. The appellant went further
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to submit that in the present case, the respondent had manifested an intention to permanently deny the appellant of the money deposited and in C
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so doing, the tortious claim of detinue was clearly made out. Reliance was placed on the following cases: Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (Pt. 521) 388 at 410; W. A. Oilfields Services Ltd v. VAC (Nig.)
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Ltd. (2000) 13 NWLR (Pt. 638) 68; Ndinwa v. Igbinedion (2000) FWLR
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(Pt. 30) 2673, (2001) 5 NWLR (Pt. 705) 140 at 150; Acme Builders Limited D
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v. Kaduna State Water Board (1999) 2 NWLR (Pt. 590) 288 at 305. On the award of damages, the appellant submitted that an appellate court will not interfere with the award of damages made by the trial court where such an award of damages is justifiable.
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Reliance was placed on U.B.N Ltd v. Odusote Bookstores Ltd (1995) E
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9 NWLR (Pt. 421) 558 at 585 - 586; Allied Bank of Nigeria Limited v.
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Akubueze (1997) 6 NWLR (Pt. 509) 374; Kalu v. Mbuko (1988) 3 NWLR (Pt. 80) 86. The appellant submitted that the lower court was wrong to have interfered with the trial court’s findings on damages and further
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contended that the era of technical justice is over. Reliance was placed on
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Bello v. Attorney-General, Oyo State (1986) 5 NWLR (Pt. 45) 828 at 889 F
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- 890; Chime v. Chime (1995) 6 NWLR (Pt. 404) 734 at 750; Atoyebi v.
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Bello (1997) 11 NWLR (Pt. 528) 268 at 284.
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The respondent for its part has submitted that the basis of the relationship between the parties is agreement and therefore, the relationship
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is contractual in nature, involving obligations on both sides, breach of which G
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is a breach of contract. Reference was made on the terms upon which the account was opened as spelt out in paragraph 5 of the further amended statement of claim at page 32 of the record. This conclusion, the respondent submits is supported by a number of judicial authorities: U.B.N. Ltd v
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Ozigi (1991) 2 NWLR (Pt. 176) 677 at 694 wherein it was held that “the law H
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of banking is a specie of the law of contract with the special usage of
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commercial transactions in money including the use of special documents and collateral such as mortgages and debentures thrown in.” Other cases
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referred to are Joachim v. Swiss Bank Corporation (1922) 3 KB 110; Balogun v. National Bank of Nigeria Ltd (1978) 11 NSCC 135. The respondent submitted that it is not in doubt that the relationship between the parties could not have come into being in the absence of an agreement or contract. The subject matter of detinue according to the respondent, is “goods” or “chattel” which cannot be money and in order to succeed in a suit in detinue, the appellant must establish the wrongful detention of his
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chattel by the respondent. Reliance was placed on Udechukwu v. Okwuka (1956) 1 FSC 70. The respondent went on further to submit that detinue does not lie for money unless it is specifically identified, as for example,
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money in a bag and not money in the abstract as in a fixed deposit account
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which is not chattel for which an action in detinue will lie. Reliance was
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placed on Julius Berger (Nig.) Plc. v. Omogui (2001) FWLR (Pt. 64) 305, (2001) 15 NWLR (Pt. 736) 401 at 415 - 416 and to Halsbury’s Laws of England (3rd Edition) Volume 38, page 775, paragraph 1285 where the learned authors said as follows with respect to the subject matter of detinue
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- “the subject matter of both trover and detinue must be specific personal
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property whether goods or chattels. Neither trover nor detinue lies for money unless it is specifically identified...” In Foster v. Green (1862) as reported in 31 LJ Ex 158 at page 161 it was held per Pollock C.B. that “an action (in detinue) would not lie for money unless in a bag.”
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It was the respondent’s contention that what was taken to the respondent by the appellant that led to the present case now on further appeal to this
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court was not money but a bank draft which is in line with the evidence of the PW2 under cross-examination and the evidence of the DW1. On the setting aside of the award of N2,000,000.00 (two million naira) general
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damages by the court below, the respondent submitted that this was proper,
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since the trial court had based its award of that sum to the appellant on the
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wrong premise that the action was one on the tort of detinue.
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The respondent further submitted that quite apart from the fact that the award of N2,000,000.00 (two million naira) general damages to the appellant was based on a wrong premise, the court below was also right
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to have interfered with the award which to be proper must not be manifestly
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too high or manifestly too low and in the present case, it was manifestly too high in view of the fact that interest on the amount fixed had already been granted. The respondent went on to submit that in cases of contract, the principle of award of damages is as laid down in Hadley v. Baxendale
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(1854) 9 EXCH 341 which was not the principle adopted by the learned trial judge in the High Court.
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What is the nature of an action in detinue? In Kosile v. Folarin
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(1989) 3 NWLR (Pt. 107) 1, (1989) 4 SC (Pt. 1) 50 the Supreme Court, per
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Nnaemeka Agu, JSC held as follows: A “It must be clearly stated that in an action for detinue, the gist of the action is the unlawful diversion of the plaintiff’s chattel which he has an immediate right to possess after the plaintiff has demanded its return.”
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See also Shonekan v. Smith (1964) 1 All NLR 168 at page 173; B
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Akpene v. Barclays Bank of Nig. Ltd and Anor (1977) 1 SC 47; Kate
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Enterprise (Nig.) Ltd v. Daewoo (Nig) Ltd (1985) 2 NWLR (Pt. 5) 116;
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Adegbaiye v. Loyinmi (1986) 5 NWLR (Pt. 43) 655. In Chigbu v. Tonimas
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Nigeria Limited (2006) All FWLR (Pt. 320) 984, (2006) 9 NWLR (Pt.
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994) 189, the word “chattel” is used interchangeably with the word “goods”with respect to the ingredients of the tort of detinue. This definition C
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would with appear to be in consonance with that in Halsbury’s Laws of England (Third Edition) Vol. 38, page 775, paragraph 1285 as was seen earlier. Cases referred to earlier in this write-up show that “chattel” or “goods” cannot mean money except for example money in form of cash
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in a bag. Theauthorities do not show that the term “chattel” or “goods” D
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can by any stretch of imagination, be extended to mean or include money in an abstract form such as a bank draft used in the transaction, the subject matter of this case now on further appeal to us. Paragraph 5 of the further amended statement of claim refers to “term of the agreement” details of
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which arl no doubt contractual between the parties, imposing obligations E
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on both sides. An award of N2,000,000.00 (two million naira) damages
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based on the tort of detinue cannot therefore be right. In Armel’s Transport Ltd v Transco (Nig.) Ltd (1974) 11 SC 237, the Supreme Court held that the measure of damages in an action in tort is not the same as in an action
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in contract. In Chief Paul Ordia v. Piedmont (Nig.) Ltd (1995) 2 NWLR (Pt. 379) 516 the Supreme Court held, per Iguh, JSC that: F
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“In general, the damages to which a plaintiff who has been deprived of his chattel is entitled to is prima facie, the value of the chattel together with any special loss which is the natural and direct result of the wrongful act.”
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See Re Simons (1934) 1 CH 1. “A successful plaintiff in an action G
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on detinue may obtain judgment which entitles him to the return of the chattel or its value and also damages for its detention.” This is to be compared with an award of damages for breach of contract. In Universal Vulcanizing Ltd v. Ijesha United Trading and Transport Co. Ltd and
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Ors. (1992) 9 NWLR (Pt. 266) 388 this court held that: H
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“The object of awarding damages for breach of contract is
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to put the injured party so far as money can do it in the same position as if the contract had been performed. The injured
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party can never get more in damages than the loss which he has suffered. In fact, the injured party can even get less than the loss he has suffered under the exclusive principle of “remoteness of damages” as laid down in Hadley v. Baxendale (1854) 8 EX 341.” Per Iguh, JSC at pages 38 - 39, paragraphs G - B. Thus, it is clear that the trial court was not only operating under the wrong premise that the
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relationship between the appellant and the respondent was one under the tort of detinue instead of contract, the damages were excessive and liable to be disturbed on appeal by the lower court which did so.
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In Williams v. Daily Times of Nigeria Ltd (1990) 1 NWLR (Pt.
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124) 1 this court, per Nnamani, JSC, reiterated this well known principle
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of law thus:
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“It is well settled that the award of damages by a trial court can only be upset by an appellate court if that court feels that the trial court acted on wrong principles of law or that the
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amount awarded by the trial court is extremely high or low.”
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Issue No. 1 ought therefore and is hereby resolved in favour of the respondent.
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Issue 3 is “whether the appellant was only entitled to interest at the originally agreed rate of 12.25% per annum on the fixed deposit account.”
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At page 163 of the records, the trial court in its judgment had stated as follows, “for avoidance of doubt, the plaintiff is hereby awarded interest
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on its deposit with the defendant at the rate of 12.25% per annum from October, 1988 to 14August 1989;18.25% interest per annum from 15 August 1989 to 14 December 1989 and thereafter, interest at the rate of
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25% per annum until the date hereof as enumerated in exhibit 28.”
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Several reasons had been given by the learned trial judge for
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awarding those interest rates to the plaintiff (appellant) but principally because “the defendant has wrongfully held on to the plaintiff’s deposit and would not negotiate a review of the interest rate since the past eleven years.” See page 162 of the records. The court below had disagreed with
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this finding of the trial court and set same aside. Was the court below right
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to have done so? The appellant has submitted in its brief of argument that in paragraphs 5, 27, 33, 34, 35 and 36 of the further amended statement of claim, it copiously pleaded its entitlement to interest at the rates over and above 12.25% initially agreed by the parties. Specific reference was made
-*-
to paragraph 5(v) of the further amended statement of claim at page 32 of the record which stated as follows, “among other things, it was a term of
-*-
the agreement that: (v) interest payable on the deposit could be reviewed upward from time to time to any rate agreed to by the parties after negotiation.”
-*-
The appellant also stated that in paragraph 27 of its further amended A statement of claim, a request in its letter to the respondent dated 21 September 1989 for a 25% interest on the deposit account had been turned down by the respondent in its letter of 22 November 1989. The respondent‘ according to the appellant had not denied these facts. Denials of paragraphs
-*-
33, 34, 35 and 36 of the further amended statement of claim were only B
-*-
general in nature, as claimed by the appellant and yet, the court below still
-*-
found it convenient not only to question but to even set aside the interest awarded by the trial court to the appellant. The appellant went further to submit that the trial court had noted in its judgment that paragraphs 4, 5, 6,
-*-
7, 8, 9, 13, 14, 19, 20 and 37A of the further amended statement of claim were not denied in the respondent’s statement of defence and even though C
-*-
the appellant did not appeal on this fact, the court below still went ahead to set aside the decision of the trial court on this point. It was the contention of the appellant that there was never an agreement between both parties that interest rate on the deposit account would be fixed or remain at 12.25%.
-*-
On the contrary, it was agreed that the interest rate would be renegotiated D
-*-
annually.
-*-
The appellant faulted the finding of the court below on evidence adduced by the appellant showing that higher interest rates could have been payable as perverse. Reliance was placed on Aina v. U.B.A. Plc
-*-
(1997) 4 NWLR (Pt. 498) 181 at 189; N.E.P.A. v. Ososanya (2004) All E
-*-
FWLR (Pt.196) 908, (2004) 5 NWLR (Pt. 867) 601 at 625. Not only were
-*-
exhibits 28 and 29 not contradicted, the respondents failed to challenge the entitlements claimed by the appellant, so claimed the appellant. It was therefore the submission of the appellant that the respondent having
-*-
deliberately stopped an upward review of the interest rate for eleven years, was legally and morally estopped from stopping an award of interest in F
-*-
excess of 12.25% which enures to the appellant as of right, having been contemplated by the agreement between the parties.
-*-
The appellant relied on the following cases to buttress that point: Owoniboys Technical Services Ltd v. Union Bank (Nig.) Ltd (2003) 15 NWLR (Pt. 844) 545, (2003) FWLR (Pt. 180) 1529; Ekwunife v. Wayne G
-*-
West Africa Ltd (1989) 5 NWLR (Pt. 122) 422 at 445; London, Chatham & Dover Railway v. S. E. Railway (1893) AC 429 at 434. This right though not claimed on the writ, has according to the appellant, been claimed in the statement of claim which supersedes the writ.
-*-
Reliance was placed on Udechukwu v. Okwuka (1956) 1 FSC 70 H
-*-
at page 71, (1956) SCNLR 189; Ekpan and Anor v. Uyo (1986) 3 NWLR
-*-
(Pt. 26) 63.
-*-
On this issue, the respondent has claimed that any claim of interest in
-*-
the present case has its basis on the agreement entered into by the parties as stipulated in the terms of agreement pleaded in paragraph 5 of the further amended statement of claim at page 32 of the record of appeal. The relevant terms on the issue of interest according to the respondent are: The deposit account shall initially attract interest of 12.25%. (v) Interest payable on the deposit could be reviewed upwards from time to time at any rate agreed by the parties after
-*-
negotiation.
-*-
The respondent submitted that the award of interest by the learned
-*-
trial judge at rates other than 12.25% was clearly wrong and that the court below was absolutely right to have set aside such an award. It was the
-*-
contention of the respondent that contracts are made by parties on terms
-*-
agreed mutually by them and that in the present case, the parties only agreed on 12.25 % and not on any other rate of interest. Thatbeing the case, it was wrong for the trial court to have imposed an award which was in the contemplation of only one of the parties to the detriment of the other party
-*-
and which was against settled principles of law that a court does not make
-*-
an agreement for the parties but only enforces the agreement made by them. Reliance was placed for this proposition of the law on African Reinsurance Corporation v. Fantaye (19&6) 1 NWLR (Pt. 14) 113 at 605. The respondent further submitted that its refusal to negotiate a review of interest is no
-*-
justification for the appellant to impose different rate of interest. The respondent submitted that it admitted only the first sentence of paragraph
-*-
27 of the amended statement of claim in its amended statement of defence and not the entirety of the contents of paragraph 27 of the further amended statement of claim. The respondent also submitted that the DW1 in evidence,
-*-
emphasized that the rate of interest agreed to by the bank was 12.25% and
-*-
no more and that the appellant had only tried to mislead the court. The
-*-
respondent also submitted that the evidence of the DW1 was on lending rate of the bank and not deregulated interest on deposit as averred in paragraph 27 of the further amended statement of claim.
-*-
In further clarification, the respondent submitted that the lending G rate of banks is different from interest rate on fixed deposit and there was no evidence before the trial court that both were the same for the relevant
-*-
The terms of the agreement were pleaded in paragraph 5 of the further amended statement of claim which terms were earlier in this write-
-*-
H up reproduced and therefore need no further reproduction. The highlights of the agreement on interest rate are undoubtedly that the deposit shall
-*-
attract an initial interest of 12.25% per annum and that the interest payable on the deposit could be reviewed upwards from time to time at any rate
-*-
by the parties after negotiation. I have carefully read paragraphs 5, 27, 33, A 34, 35 and 36 of the further amended statement of claim referred to by the appellant and I am satisfied that the appellant copiously pleaded its entitlement to interest at the rates over and above the 12.25% agreed to by
-*-
die parties. The question is whether this derogates from the fact that any
-*-
upward review of the initially agreed 12:25% interest rate has to be agreed B
-*-
upon by the parties.
-*-
In other words, in the absence of any specific agreement that the initially agreed interest rate of 12.25% has to be reviewed upwards after a given period, can the appellant or the trial court foist a new and reviewed
-*-
interest rate on the parties? Parties are bound by the terms of an agreement freely entered into by them and the duty of a trial court is simply to give C
-*-
effect to that agreement freely entered into by the parties and not to make a new agreement for them. This is an age old legal principle - a notorious one for that matter and there is a plethora of case law on that subject matter: Afro Technical Services Nig. Ltd v. MLA. & Sons Limited and
-*-
Anor. (2000) 15 NWLR (Pt. 692) 730, (2000) 12 SC (Pt. 11) 1, (2000) All D
-*-
NLR 533, (2001) FWLR (Pt. 35) 643; Bookshop House Ltd v. Stanley
-*-
Consultants Ltd (1986) 3 NWLR (Pt. 26) 87 at 97. In Nika Fishing Co.
-*-
Ltd v. Lavina Corporation (2008) All FWLR (Pt. 437) 1, (2008) 16 NWLR
-*-
(Pt.1114) 509, the Supreme Court per Niki Tobi, JSC, put the position this way: E
-*-
“It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No other person, not even the court can determine the terms of contract between parties thereto. The duty of the court is to strictly interpret
-*-
the terms of the agreement on its clear terms.”
-*-
Onnoghen, JSC in Augustine Ibama v. Shell Petroleum Development F
-*-
Company (Nig.) Ltd (2005) All FWLR (Pt. 287) 832, (2005) 17 NWLR
-*-
(Pt. 954) 364 lent his voice when he stated thus:
-*-
“It is trite law that the court can only interpret or enforce the agreement entered into by the parties and is incapable of making any contract between them.” G
-*-
Could the learned trial judge have been right when in his judgment at page 163 of the records, he had said, “for avoidance of doubt, the plaintiff is hereby awarded interest on its deposit with the defendant at the rate of 12.25% per annum from October, 1988 to 14 August 1989; 18.25% interest
-*-
per annum from 15 August 1989 to 14 December 1989 and thereafter, H
-*-
interest at the rate of 25 % per annum until the date thereof as enumerated
-*-
in exhibit 28.” I think not because that would be foisting a new and reviewed interest regime on the parties which was neither contemplated nor embodied
-*-
All FWLR A. I. I. L. v. A. B. N. (Chukwuma-Eneh, Galadima, Muhammad JJ.SC) 437
-*-
in the terms of the agreement entered into between them. The appellant was quick and I must say, honest enough to say that its request on 21 November 1989 letter asking for 25% interest on the deposit account was rebuffed by the respondent in its letter of 22 November 1989. Heavy weather appears to have been made by the appellant where in continuation of his evidence at page 104 of the records, the PW2 had said, “there was no agreement that the interest rate on the deposit account would be fixed
-*-
or remain at 12.25%. On the contrary, it was agreed that the rate of interest would be re-negotiated annually.” In what manner if I may ask? Did the agreement stipulate by what percentage annually, the reviewed interest
-*-
would be? The appellant has also admitted that it did not appeal on the
-*-
trial court’s finding that paragraphs 4, 5, 6, 7, 8, 9, 13, 14, 19, 20, 27 and
-*-
37A of the further amended statement of claim remained undenied by the respondent in its further amended statement of defence. Of what significance is it then to have been raised in the appellant’s brief of argument? This issue must also be and is hereby resolved in favour of the respondent and
-*-
against the appellant
-*-
The appeal lacks merit and is dismissed and the judgment of the court below delivered on 10 December 2001 is hereby affirmed. Parties are however to bear their own costs.
-*-
CHUKWUMA-ENEH JSC: Judgment prepared by Alagoa, JSC. Appeal
-*-
is dismissed. Parties are to bear their costs.
-*-
GALADIMA JSC: I have had the preview of the judgment of my learned brother, Alagoa, JSC. I agree with the reasoning and conclusion arrived at. I agree with him that the appeal lacks merit and is hereby dismissed.
-*-
The judgment of the Court of Appeal delivered on 10 December 2001 is accordingly affirmed. Parties to bear their own costs.
-*-
MUHAMMAD JSC: I read in draft, the lead judgment of my learned brother, Alagoa, JSC with whose reasonings and conclusion that the appeal lacks merit, I entirely agree.
-*-
I rely on the facts that brought about the appeal as fully captured in
-*-
H the lead judgment in emphasizing why the appeal must fail. I agree with my learned brother that the 1st issue formulated by the appellant along with the
-*-
respondent’s 3rd issue should form the basis of our consideration of the merit or otherwise of the appeal. The two have also been reproduced in the
-*-
lead judgment. A
-*-
Arguing the appeal, the learned appellant counsel contends that from his pleadings, the appellant’s case is that not only is the respondent in breach of the contractual agreement between the two, he is also liable in tort for detinue. Learned counsel asserts that parties have joined issues on
-*-
the two causes of action. The appellant has also led evidence on both B
-*-
causes. The lower court, submits learned counsel, is wrong to have set
-*-
aside the trial court’s unassailable decision in favour of the appellant. The lower court’s judgment that from the pleadings and available evidence, the appellant’s action is only grounded in contract is therefore perverse. Learned
-*-
counsel insists that the appellant is permitted by law to maintain both causes
-*-
of action in contract and detinue. He supports his contention inter alia with C
-*-
Balogun v. N.B.N. (1978) 3 SC 155 at 173; Ndinwa v. Igbinedion (2000)
-*-
FWLR (Pt. 30) 2673, (2001) 5 NWLR (Pt. 705) 140 and 150 and W. A.
-*-
Oilfields Services Ltd v. UAC (Nig.) Ltd. (2000) 13 NWLR (Pt. 638) 68.
-*-
Further arguing the appeal, the learned appellant counsel submits that the court below has relied on wrong principles in setting aside the D damages awarded the appellant who has established the two causes of action he averred to in his further amended statement of claim. The learned counsel relies on Kalu v. Mbuko (1988) 3 NWLR (Pt. 80) 86; U.B.N Ltd
-*-
v. Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421) 558 at 585-586. Further relying on Atoyebi v. Bello (1997) 11 NWLR (Pt. 528) 268 at 284 E
-*-
and Bello v. Attorney-General, Oyo State (1986) 5 NWLR (Pt. 45) 828 at 889-890, in urging that we disallow the enthronement of technical justice by allowing the appeal.
-*-
Responding, the learned counsel submits that the contractual
-*-
agreement that the appellant avers to in his further amended statement of claim cannot form the basis of the tort of detinue he asserts to have F
-*-
established at the trial court. Parties, having joined issues on the agreement between them, the learned respondent counsel contends, will not be allowed to prove a case outside what they pleaded. Counsel refers to the further amended statement of claim, particularly paragraph 5 thereof and submits
-*-
that the customer/banker relationship the appellant pleads has been held in G
-*-
many cases to be contractual. The trial court, it is argued, is wrong to have held differently. Learned counsel relies on the decisions in Balogun v. National Bank of Nigeria Ltd (1978) 11 NSCC 135; U.B.N. Ltd v. Ozigi (1991) 2 NWLR (Pt. 176) 677 at 694 among others. Besides, the learned
-*-
respondent counsel further submits, a cheque’s value in a fixed deposit H
-*-
account, not being goods or chattel, cannot form the basis of the tort of
-*-
detinue. He supports his contention with Julius Berger (Nig.) Plc. v. Omogui
-*-
(2001) FWLR (Pt. 64) 305, (2001) 15 NWLR (Pt. 736) 401 at 415 - 416,and
-*-
All FWLR A. I. I. L. v. A. B. N. (Muhammad JSC) 439
-*-
Udechukwu v. Okwuka (1956) 1 FSC 70.
-*-
Learned counsel submit’s that the lower court is right in law to have interfered with the trial court’s award of damages because of the appellant’s failure to prove his case. In any event, the sum awarded to the appellant, learned counsel further contends, is manifestly too high and not legally
-*-
justifiable.
-*-
Concluding, the learned respondent’s counsel submits that, had
-*-
the appellant proved the breach of the contract between him and the respondent, he would have been entitled only to the 12.25% per annum interest parties agreed to. The trial court’s award outside what the parties
-*-
agreed as interest is also perverse. Counsel relies on the case of African
-*-
Reinsurance Corporation v. Fantaye (1986) 1 NWLR (Pt. 14) 113 at 601
-*-
and urges us to dismiss the unmeritorious appeal.
-*-
Learned counsel for the respondent is on a firm terrain that given the pleadings of parties and the evidence led before the trial court, the lower court’s judgment is unassailable. I offer and very briefly too, three
-*-
main reasons.
-*-
Firstly, parties are bound by their pleadings. They cannot, in law, make a case outside their pleadings as evidence in respect of unpleaded facts do remain unavailing: Okonkwo v. C. C. B. (Nig.) Plc. (2003) FWLR (Pt. 154) 457, (2003) 8 NWLR (Pt. 822) 347; Ndoma-Egba v. Chukwuogor
-*-
E (2004)All FWLR (Pt. 217) 735, (2004) 6 NWLR (Pt. 869) 382 and Jolayemi
-*-
v. Alaoye (2004) All FWLR (Pt. 217) 584, (2004)12 NWLR (Pt. 887) 322.
-*-
In the instant case, the court below is right to insist that the appellant whose entire pleadings rest on the contractual relationship with the respondent cannot lead evidence to prove the tort of detinue. Granted the appellant’s
-*-
further amended statement of claim contain averments on the said tort, I
-*-
further agree with the learned respondent counsel that the respondent cannot
-*-
be found liable since the money in a deposit account with the respondent, if a cheque/bankdraft can be so termed, is neither “goods” nor “chattel”. In Barau v. M.C. Brett & Sons (Nig.) Ltd (1968) NSCC 133 at 136, this court has held that an action is brought in detinue for the specific recovering of
-*-
personal chattels or goods wrongly detained from the person entitled to the
-*-
possession of them and for damages occasioned by the wrongful detainer. Secondly, the lower court in affirming the trial court’s findings that the respondent is liable for the tort of detinue, it would make for the parties a case different from the one the parties approached that court to resolve, a
-*-
feat the law does not allow it to even attempt, let alone sustain. The same principle militates against the interest the trial court awarded to the appellant
-*-
which the court below rightly refused to affirm but set aside: Commissioner for Works Benue State v. Devcon Construction Co. Ltd (1988) 3 NWLR
-*-
(Pt. 83) 407. A
-*-
Finally, the issue of damages arises only where the defendant has been found liable in terms of the plaintiff’s claim. In the case at hand, where the appellant failed to prove that the respondent is in breach of the “agreement” between the two, the award by the trial court, having
-*-
proceeded on wrong premises cannot endure. Being perverse, it has rightly B
-*-
been set - aside too: Swiss Nigeria Wood Industries Ltd v. Bogo (1970) 6
-*-
NSCC 235 and Ediagbonya v. Dumez (Nig.) Ltd. and Anor (1986) 3 NWLR (Pt. 31) 53, (1986) 17 NSCC (Pt. 11) 827.
-*-
It is for these and fuller reasons adumberated in the lead judgment that I also dismiss the appeal and affirm the decision of the court below. I
-*-
abide by the consequential orders made in the lead judgment, including C
-*-
the order on costs.
-*-
OGUNBIYI JSC: I read in draft, the lead judgment just delivered by my brother, Hon. Justice S. S. Alagoa, JSC. I agree that on the totality, this D appeal is devoid of any merit and is also dismissed by me.
-*-
Just for purpose of recapitulation and to comment on the 1st issue raised, I wish to state that paragraph 5 of the further amended statement of claim contains the terms upon which the appellant opened a fixed deposit
-*-
account with the respondent bank as follows: E
-*-
“5 Among other things, it was a term of the agreement that:
-*-
The deposit account shall initially attract an annual interest of 12.25%. The annual interest shall be payable at the end of every
-*-
month from the date of the deposit into the account and credited directly to the plaintiffs’ current account F
-*-
No. 36-189 369 M with the defendant.
-*-
The duration of the account was to be 12 months with liberty to the plaintiff after giving notice to the defendant to withdraw any amount from the deposit in the account
-*-
for the purposes of its business during the currency of G
-*-
the agreed period of deposit.
-*-
Interest would only be paid on any amount standing to the credit of the account at the end of every month. Interest payable on the deposit could be reviewed
-*-
upwards from time to time to any rate agreed by the H
-*-
parties after negotiation.
-*-
The account could be reviewed for another period of time at the expiry of the first year of deposit.”
-*-
All FWLR A. I. I. L. v. A. B. N. (Ogunbiyi JSC) 441
-*-
From the foregoing, it is apt to say therefore that the basis or substratum of the relationship between the parties in this case was agreement and hence, the relationship is sine qua non contractual. The anchoring support is the restatement by this court in U.B.N. Ltd v. Ozigi (1991) 2 NWLR (Pt. 176) 677 at 694. The principle of law is also well settled that the refusal by a banker to pay a customer’s cheque when the customer has sufficient funds in his account is to cover the amount on the cheque,
-*-
which amount to breach of contract. It is not also in dispute that the appellant did demand the payment of his deposit but the respondent refused to comply on the ground that the Central Bank of Nigeria did freeze the appellant’s
-*-
account. I further wish to restate that the terms of contract agreed between
-*-
both parties are well spelt out on the record as reproduced supra.
-*-
At page 160 of the record of appeal for instance, the learned trial judge held thus and said:
-*-
“...I also hold that the defendant is liable to the plaintiff in detinue as pleaded in paragraph 37A of the further amended
-*-
statement of claim ... In the assessment of damages, it has
-*-
been held by the Supreme Court in Elisah Oladeji Kosile v. Amusa Olaniyi Folarin (1989) 3 NWLR (Pt. 107) l, (1989) 4
-*-
SC (Pt. 1) 50, (1989) 4 SCNJ (Pt. 11) 198, 204 that a successful party in an action for detinue is entitled to in order of specific
-*-
restitution of the chattel, or, in default, its value and also damages for its detention up to the date of judgment.”
-*-
Again, at page 161, the learned trial judge continued as follows: “The declaration being sought by the plaintiff in paragraph 38(1) and the general damages for breach of contract now
-*-
becomes inappropriate in view of paragraph 37A of the further
-*-
amended statement of claim. The plaintiff’s case is no longerin
-*-
contract but in tort which entitles it to the award of exemplary damages as adumbrated by the Supreme Court in Allied Bank of Nigeria Limited v. JonasAkubueze (1997) 6 NWLR (Pt.
-*-
509) 374 ... Since the case is founded on detinue, the plaintiff G is outrightly entitled to a refund of deposit in the sum of N467,000.00 (four hundred and sixty-seven thousand naira).
-*-
As agreed by the parties, the plaintiff is also entitled to 12.25% interest rate per annum on its deposit from October, 1988 to July 1989 being the initial duration of the deposit.”
-*-
H As rightly concluded by the lower court, it is very clear from the trial court judges findings that he never found that the appellant had any other
-*-
cause different from an action in detinue. At least, the reference made to the trial court’s judgment supra is very well founded wherein the judge was
-*-
very emphatic in his judgment that the action is founded in detinue. A
-*-
In the absence of an appeal against the said findings of fact made to the lower court, the appellant cannot now be heard. to complain that his action was not based on detinue alone. He is rather deemed to have admitted the findings. At page 269 of the record, this is what the lower court per
-*-
Onnoghen, JCA (as he then was) in the lead judgment said on the findings B
-*-
by the trial court supra:
-*-
“It is my considered view that without a cross-appeal challenging the copious findings of the trial court on the issue of the action being grounded on detinue alone, the learned
-*-
SAN cannot legally be heard submitting in the contrary to this court. In otherwords, in view of the above findings of C
-*-
the learned trial judge, the judgment of the court can only stand if the relationship between the parties is founded on detinue as decided therein since the issue of the cause of action being also on contract is not properly before this court
-*-
- being the Court of Appeal.” D
-*-
I agree with their lordships of the Court of Appeal. Consequently, the measure of damages must therefore be as laid down in accordance to the law of contract and the breach thereof.
-*-
On the totality of this appeal, I am in complete ageerment with the
-*-
reasoning and conclusion arrived thereat by my learned brother, Shenko E
-*-
Stanley Alogoa, JSC that it is lacking in dire merit and is also dismissed by
-*-
me in like terms of the lead judgment, inclusive of the order made as to costs.
-*-
Appeal dismissed
