BERNARD & ANOR v. FCMB LTD (2022)

BERNARD & ANOR v. FCMB LTD

(2022)LCN/16024(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, July 08, 2022

CA/ABJ/CV/204/2021

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

1. MR. DANIEL CHINOHA BERNARD (Doing Business Under The Name And Style Of Lichben Associates) 2. NJIDEKA LILIAN BERNARD (Doing Business Under The Name And Style Of Lichben Associates) APPELANT(S)

And

FIRST CITY MONUMENT BANK LIMITED RESPONDENT(S)

RATIO:

REGARDING THE FACTS AND CIRCUMSTANCES OF THIS CASE EXEMPLARY DAMAGES OUGHT NOT TO BE ALLOWED

It was on the strength of the pleadings and evidence led as in the Record of Appeal that the lower Court had in its judgment delivered on 6/10/2020, granted some of the reliefs claimed by the Appellants whilst refusing to grant the relief of exemplary or punitive damages, holding and stating inter alia as follows:
“Having held that the freezing of the Plaintiffs account was unwarranted, I am of the view and will so hold that the Defendant is in breach of its fiduciary relationship with the Claimant…It must be recounted that the statement on oath of PW1, Claimants sole witness has been expunged…The Claimant has sought for the sum of N20, 000, 000. 00 representing general, aggravated, punitive, exemplary damages, loss of credibility and financial embarrassment…I am unable to deduce any form of high handedness or reckless or a justification to sanction the Defendant as a deterrent…I am not of the view and will so hold that the Defendant were not being outrageous or oppressive…This being my view and I will so hold, that exemplary damages ought not to be allowed having regard to the facts and circumstance of this case.” See pages 237 – 256 of the Record of Appeal. BIOBELE ABRAHAM GEORGEWILL, J.C.

EVIDENCE ELICITED UNDER CROSS EXAMINATION IS GOOD EVIDENCE AND THE INADMISSIBILY OF FACTS NOT PLEADED

My Lords, it is true that evidence elicited under cross-examination, if on facts as pleaded by either the cross-examining party or the adverse party, is good evidence. Yet, evidence elicited under cross-examination enjoys neither a higher standard nor is it exempted from the requirement of the law that for evidence to be admissible it must be on facts pleaded. Thus, any evidence given, either in chief or elicited under cross-examination on any fact not pleaded is inadmissible and also goes to no issue. Thus, a Court of law has no power to act on any evidence elicited either from examination-in-chief or under cross-examination if such evidence is not covered by the averments in the pleadings of the parties. See Gaji V. Paye (2003) 8 NWLR (Pt. 823) 538. See also Yare V. NSW & IC (2013) 12 NWLR (Pt. 1367) 173, Adekeye V. Adesina (2010) 18 NWLR (Pt.1225) 449, Ojiogu V. Ojiogu (2010) 9 NWLR (Pt. 1198) 1, Okwejiminor V. Gbakeji (2008) 5 NWLR (Pt. 1079) 172, Olora V. Adegbite (2013) 1 NWLR (Pt. 1334) 40 at p. 60. BIOBELE ABRAHAM GEORGEWILL, J.C.A

THE DUTY OF A BANK IS TO EXERCISE REASONABLE CARE AND SKILL IN REGARDS TO THE CUSTOMERS AFFAIRS

See Agbanelo V. UBN (2000) 4 SC (Pt. 1) 233 at p. 24, where the Supreme Court had stated firmly and with finality inter alia thus:
“The Defendant’s duty to exercise reasonable care and skill in regards to the customers affairs is undoubted…A Bank has a duty under its contract with the Customer to exercise reasonable care and skill in carrying out its part with regards to operations within its contract with its Customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the Customer.”
See also Zenith Bank Plc V. Yusuf Waili (2022) LPELR-57349(CA), per Sir Biobele Abraham Georgewill JCA, Allied Bank (Nig) Limited V. Akubueze (1997) 6 NWLR (Pt. 509) 374, Union Bank of Nigeria Limited V. Nwoye (1996) 3 NWLR (Pt. 435) 135, Guaranty Trust Bank Plc V. Odeyemi Oluyinka Joshua (2021) LPELR – 53173 (CA), per Abiriyi JCA. BIOBELE ABRAHAM GEORGEWILL, J.C.A

THE DEFINITION OF EXEMPLARY OR PUNITIVE DAMAGES AND WHEN IN LAW IT SHOULD BE GRANTED BY THE COURT

THE PRIMARY OBJECT AND PURPOSE OF AN AWARD OF DAMAGES

In law, therefore, punitive or exemplary damages are damages awarded in addition to actual damages when the Defendant had acted with recklessness, malice, or deceit. They are specific damages by way of penalizing the wrongdoer or making an example to others. What then is the purpose of punitive damages? In Anthony Odiba V. Tule Azege (1998) LPELR – 2215 (SC) at p. 15, the Supreme Court per Mohammed JSC had stated as follows:
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages. Vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.”
See also First Bank of Nigeria Plc & Ors V. Boniface Chukwu (2018) LPELR – 45148 (CA) per Oredola JCA. BIOBELE ABRAHAM GEORGEWILL, J.C.A

WHAT AMOUNTS TO A RECKLESS CONDUCT AND THE DEFINITION OF RECKLESS
What then in law would amount to a reckless conduct? The word ‘reckless’ is defined as characterized by the creation of substantial and unjustifiable risk of harm to others and by a conscious, and sometimes deliberate, disregard for or indifference to that risk, heedless, rash. On its part, the word ‘heedless’ as one of the elements of recklessness, is defined as the quality of being thoughtless and inconsiderate, especially conduct whereby the person acting disregards the rights or safety of others. It is often construed to involve the same degree of fault as recklessness. See the Black’s Law Dictionary, Eight Edition at pages 740 and 1298. BIOBELE ABRAHAM GEORGEWILL, J.C.A

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against that part of the judgment of the High Court of Federal Capital Territory, Abuja, Coram: O. O. Goodluck J, (as he then was but now JCA) in Suit No. FCT/HC/CV/2902/2018: Mr. Daniel Chinoha Bernard (Doing Business Under the Name and Style of Lichben Associates) & Anor V. First City Monument Bank Ltd delivered on 6/10/2020, declining to award punitive and exemplary damages against the Respondent in favor of the Appellants.

The Notice of Appeal was filed on 8/12/2020 on two grounds of appeal. See pages 257 – 261 of the Record of Appeal. The Amended Notice of Appeal was filed on 30/6/2021 on four grounds of appeal but was deemed as properly filed on 2/2/2022. The Record of Appeal was compiled and transmitted to this Court on 5/3/2021. The Parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 25/4/2022. The Appellants were represented by Patrick Peter Esq. The Respondent was represented by Tairu Adebayo Esq. appearing with Daphne Edughele Esq.

By a Writ of Summons and a Statement of Claim filed before the lower Court, the Appellants as Claimants claimed against the Respondent as Defendant the following reliefs, to wit:
1. A declaration that freezing of the 1st Claimant’s Business Savings Account by the Defendant is inexplicable, unwarranted, unjustifiable and unlawful.
2. A declaration that the Defendant is liable to the 1st Claimant for the breach of a fundamental term in the Contract of Customer-Banker relationship.
3. N3, 500, 000. 00 only, as specific damages for loss of income during the period when the 1st Claimant’s Business Account was frozen by the Defendant.
4. N20, 000, 000. 00 only, as general, aggravated, punitive and exemplary damages for breach of contract of Customer – Banker relationship, loss of credibility, and financial embarrassment in the Claimants’ line of business, occasioned by the singular act of freezing of the 1st Claimant’s Business Savings Account by the Defendant.
5. N1, 175, 000. 00 only, as cost of this Suit and Solicitor’s fees. See page 3 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The Appellants are holder of a Business Savings Joint Account at the Respondent’s Bank under the name Lichben Associates, which they have been operating for over 16 years. On 15/12/2017, the Appellants could not access their account nor could they lodge funds into it, which account at that had a credit balance of N152, 440. 67. Upon enquiries at the Central Business District Branch of the Respondent, the Appellants were informed that the account was freeze upon a written instruction it received from the Nigerian Police Force directing that the said account should be frozen. Aggrieved by this action, the Appellants’ Solicitors, on their instruction, wrote to the Respondent on 5/3/2018 express their protest over Respondent’s action and demanded for an immediate re – activation of the said account. On 14/3/2018, that is seven days after the Appellants’ Solicitors’ letter the restriction was lifted by the Respondent without any explanation or an apology, which prompted the Appellants to demand for apology and the payment of N20,000,000.00 damages for breach of contract. It was at that point that the Respondent responded to offer an apology with a promise to investigate the Appellants’ complaints.

On the other hand, the Respondent stated that it acted in line with its statutory duty as a duly registered corporate institution under the Nigerian law and obeyed an order of Court for the Appellants account to be barred from debit transactions. On 15/12/2017, the Respondent received the said letter from the Nigerian Police Force and an accompanying Post No Debit Order of a Magistrate Court in Owerri instructing the Respondent to restrict any debit transactions on the Appellants’ account because of an ongoing investigation on the Appellants’ account. The Respondent merely obeyed the said order and effected the Post No Debit Order but did not freeze the Appellants’ account. It duly notified the 1st Appellant on the debit restriction on their account. By However, by another order of the said Magistrate Court in Owerri, transmitted to the Respondent by the Nigerian Police by a letter dated 14/3/2018, the Respondent lifted the debit restriction on the Appellants’ account.

The parties field and exchanged pleadings and the matter proceeded to trial. The 1st Appellant testified on behalf of the Appellants and tendered several documents, which were admitted in evidence as Exhibits. The Respondent called one Benjamin Ebhodaghe, who testified as DW1 and tendered some documents, which were admitted in evidence as Exhibits. At the conclusion of hearing, the parties filed and exchanged final written addresses, which were duly adopted by them on 15/7/2020. On 6/10/2020, the lower Court delivered its judgment granting some of the reliefs claimed by the Appellants against the Respondent but declining to award punitive and exemplary damages against the Respondent, hence the appeal. See pages 225 – 227, 233 – 235, 237 – 256 and 257 – 261 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellants’ brief, a sole issue was distilled as arising for determination from the four grounds of appeal, to wit:
“Whether or not the ratio decidendi vis a vis the conclusion/decision of the lower Court in declining punitive or exemplary damages is tantamount to mistake of law, misdirection, speculative and making a case for the Respondent so as to warrant setting it aside and, in its place, award punitive or exemplary damages against the Respondent in favor of the Appellants in view of all that transpired in this case as revealed by the Record of Appeal? (Distilled from Grounds 1, 2, 3 and 4)

In the Respondent’s brief, a sole issue was also distilled as arising for determination in this appeal, to wit:
“Whether the lower Court rightly refused the claim for punitive and exemplary damages considering the facts, circumstances of the case and lack of evidence by the Appellants before it? (Distilled from Grounds 1, 2, 3 and 4)

My Lords, I have considered the pleadings and evidence led by the parties as in the Record of Appeal in relation to the issue of punitive and exemplary damages and I intend to keep my consideration of this appeal within that narrow confine or compass. I have also considered the submissions of counsel in the light of the decision of the lower Court declining to award punitive and exemplary damages against the Respondent in favor of the Appellants. In my view, the sole issues as distilled in the Appellants’ brief best represents the sole issue for determination of this appeal, a consideration of which would involve a consideration of the sole issue as distilled in the Respondent’s brief. I shall and do hereby set down the sole issue in the Appellants’ brief as the sole issue for determination in this appeal.

SOLE ISSUE
“Whether or not the ratio decidendi vis a vis the conclusion/decision of the lower Court in declining punitive or exemplary damages is tantamount to mistake of law, misdirection, speculative and making a case for the Respondent so as to warrant setting it aside and, in its place, award punitive or exemplary damages against the Respondent in favor of the Appellants in view of all that transpired in this case as revealed by the Record of Appeal?

APPELLANTS’ COUNSEL SUBMISSIONS
In his submissions on the sole issue, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the decision of the lower Court declining punitive or exemplary damages was tantamount to mistake of law, a misdirection and speculative as it made a case for the Respondent and contended that in law such a decision is perverse and ought to be set aside and urge the Court to hold that the lower Court having righty found that there was no order of Court directing the freezing of the Appellants’ account since the Order relied upon by the Respondent is of questionable existence fell into grave error when it proceeded to decline to grant punitive or exemplary damages because the Respondent could not be expected to have been availed of the legal eye or scrutiny that would have otherwise been accorded to the document and to allow the appeal, a finding which was contrary to the evidence before it and to set aside the refusal to award punitive and exemplary damages and to award the sum of N10,000,000.00 as punitive and exemplary damages against the Respondent. Counsel relied on Nigeria Agip Oil Company Limited V. Mr. Emmanuel Ojiako & Anor (2018) LPELR – 45116(CA), Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Anor (2013) LPELR – 20723 (CA).

It was also submitted that contrary to the finding of the lower Court not only was the Respondent’s legal department fully involved in the transaction leading to the freezing of the Appellants’ account, there was also a clear procedure in dealing with the kind of request referred to by the DW1 and contended that the Respondent could not have acted on Exhibits DW1A1 – 4 without the required input from its legal department and urged the Court to hold that contrary to the decision of the lower Court the Respondent acted not only on Exhibits DW1A1 – 4 but also on the instructions of its legal department and to allow the appeal, set aside the perverse finding of the lower Court for being merely speculative and amounting to a misdirection and award punitive or exemplary damages against the Respondent in favor of the Appellants. Counsel relied on Dankula V. Shagamu (2008) All FWLR (Pt. 413) 1280 at p. 1309, Jinvo Voro V. Nyara Votoh (2016) LPELR – 40341(CA), Adebayo Alade & Anor V. Salami Ogundokun & Anor (1992) LPELR – 15028 (CA).

It was further submitted that on the evidence led it was clear that the Respondent acted without any reason in freezing the account of the Appellants and thereby occasioned huge losses to them and contended that in law in such circumstances an award of punitive or exemplary damages against the Respondent would not only be appropriate but would also deter the Respondent from carrying out a future reckless acts against its customers as well as serve as an example for others and urged the Court to so hold and set aside the perverse decision of the lower Court and award punitive or exemplary damages against the Respondent in favor of the Appellants. Counsel referred to Black’s Law Dictionary, 9th Edition at p. 448, and relied on Baker Marine Nig Ltd V. Chevron Nig Ltd (2006) LPELR – 715 (SC), Anthony Odiba V. Tule Azege (1998) LPELR – 2215 (SC) at P. 15, First Bank of Nigeria Plc & Ors V. Boniface Chukwu (2018) LPELR – 45148 (CA), Guaranty Trust Bank Plc V. Mr. Akinsiku Adedamola & Ors (2019) LPELR – 47310 (CA).

RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on his sole issue, which I have taken time to review, learned counsel for the Respondent had submitted inter alia that the lower Court was right when it refused the claim for punitive and exemplary damages which are in the realm of special damages considering the facts, circumstances and lack of evidence by the Appellants and contended that in law claims for punitive and exemplary damages are in the realm of special damages that must not only be pleaded but specifically proved and urged the Court to hold that since in law exemplary and punitive damages are not usually granted as a matter of course, the action of the Respondent was neither aggressive, oppressive nor tainted with malice as it only dutifully obeyed an Order of C Court in blocking the Appellants’ account, to dismiss the appeal and affirm the refusal of the lower Court to grant punitive and exemplary damages against the Respondent. Counsel relied on Arisons Trading & Engineering Company V. The Military Governor of Ogun State & 2 Ors (2009) 15 NWLR (Pt. 1163) 26 at Pp. 51 – 52, GKF Investment Nigeria Ltd V. Nigeria Telecommunications Limited (2009) 13 NWLR (Pt. 1164) 344 at P. 377, Iyoho V. Effiong (2007) 4 SC (Pt. 11) 90.

It was also submitted that the standard of proof required for the grant of exemplary and or punitive damages is on an improved scale far above other forms of damages to be claimed by any party and contended that in law claim for exemplary or punitive damages must be proved strictly by the so claiming and urged the Court to hold that in the absence of any evidence led by the Appellants let alone same becomes compelling or otherwise, the claim of exemplary or punitive damages cannot even be granted on admissions only and to dismiss the appeal and affirm the refusal of the lower Court to grant exemplary or punitive damages against the Respondent. Counsel relied on GKF Investment Nigeria Ltd V. Nigeria Telecommunications Limited (2009) 13 NWLR (Pt. 1164) 344 at p. 377.

APPPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the finding by the lower Court that there was no Order of Court directing the Respondent to freeze or block the Appellants’ account was not cross-appealed against by the Respondent and contended that the Respondent is deemed to have accepted the finding and decision as correct and urged the Court to hold that the issue in this appeal was of exemplary or punitive damages and not special damages and to discountenance all the irrelevant submissions and to allow the appeal, set aside the refusal of the lower Court to grant exemplary or punitive damages and grant the same to the Appellants against the Respondent. Counsel referred to Order 18 Rules 2 and 3(1) and 4(1) and (2) of the Court of Appeal Rules 2011, and relied on P. D. Hallmark Contractors Nigeria Limited & Anor V. Gloria Kanrotmwa Gomwalk (2015) LPELR – 24462 (CA), Citibank (Nig) Ltd V. Abia State Internal Revenue Service (2018) LPELR – 46246 (CA).

RESOLUTION OF THE SOLE ISSUE
My Lords, the crux of this appeal is simply whether the lower Court was right or wrong when it declined or refused to award punitive and exemplary damages against the Respondent in favor of the Appellants, and I intend to keep my consideration of this appeal within that narrow confine or compass.

At the trial before the lower Court, the 1st Appellant testified as PW1 for himself and on behalf of the 2nd Appellant. He was thoroughly cross-examined. I have taken time to review both the averments in the pleadings of the Appellants and evaluated the evidence led by the PW1 as in the Record of Appeal. The Respondent called one Benjamin Ebhodaghe, a staff of the Defendant, who testified as DW1. He tendered some documents, which were admitted in evidence as Exhibit DW1A 1 – 14. He was also thoroughly cross-examined. I have also taken time to review both the averments in the pleadings of the Respondent and evaluated the evidence led by the DW1 as in the Record of Appeal.

Now, the crux of the contentions by the Appellants, as it appears to me, is that the lower Court was wrong when it held that had the Respondent had the advantage of input from its Legal Department on the nature of the Order of a Magistrate Court in Owerri served on it by the Nigerian Police, which turned out to be of questionable existence, it would not have blocked the Appellants’ account in the first place. It was contended for the Appellants that the DW1 admitted under cross-examination that the Respondent usually refer such matter from the Police to its Legal Department for advice and therefore, the letter purportedly requesting the blocking of the Appellants’ account must have also been treated in the same manner contrary to the perverse finding of the lower Court.

To put this contention in its proper perspective, I think the starting point should be the averments of the Appellants as it relates to the issue of whether the Respondent had, in the peculiar circumstances of this case, had the benefit of the input of its Legal Department to appreciate the legal implications of the order forwarded to the Respondent by the Police. The Appellant had averred inert alia as follows:
4. The Claimants aver that they have maintained and operated a Business Savings Account in the name of the 1st Claimant with the Defendant for about Sixteen (16) years.
6. The Claimants aver that on the 15th day of December, 2017, the 1st Claimant’s Business Savings Account with the Defendant was frozen, for no just cause or any reason given.
7. The Claimants aver that, at the time that the 1st Claimant’s Business Savings Account with the Defendant was frozen, there was a total sum of N152, 440. 67 only, in the said account.
8. The Claimants aver that the 15th day of December, 2017, was the peak period of the Christmas season, when the 2nd Claimant, with his family in Abuja, had concluded arrangement to travel to Imo State, in the South-Eastern part of the Country, for the annual season’s celebration with their extended family relations.
10. The Claimants aver that the 2nd Claimant’s Christmas season’s celebration, together with that of his immediate and extended family, was hampered down by the scarcity of funds occasioned by the freezing of the Claimants’ Business Savings Account.
26. The Claimants aver that the Defendant wrote a reply to the Claimants’ Solicitor’s letter dated 30th day of April, 2018, urging the Claimants’ Solicitor to exercise some patience while they investigate the issues raised in the Claimants’ Solicitor’s letter, with a promise to revert back to the Claimants’ Solicitor on the Defendant’s position, soon. The Defendant’s reply letter dated 2nd day of May, 2018, is hereby pleaded and shall be relied upon, in Court, at the trial of this Suit. See pages 5 – 10 and 50 – 59 of the Record of Appeal.

There is no where it was part of the case of the Appellants as averred in their pleadings that the Respondent acted on the advice and or input of its Legal Department on the legal implication of the Order forwarded to it by the Police as an Order of a Magistrate Court in Owerri. That being so, I have asked myself on which basis is the Appellants relying for their vehement contention that the lower Court was wrong when it held that on the evidence before it the Respondent was not availed of proper legal advice on the legal import of the Order forwarded to it by the Police and had therefore, acted, though erroneously but presumably as a valid Order of Court, in blocking the Appellants’ account. The Appellants it seems, upon realizing that the PW1 did not give any evidence of any referral by the Respondent of the letter from the Police to its Legal Department, having not even made any such averments in their pleading, they had resorted to the evidence of the DW1 under cross-examination to show that the Respondent usually referred such matters to its Legal Department for legal advice before acting on such matters.

So, the question is there any pleading of this fact on which evidence was given under cross-examination by the DW1? I think not! It is true that the DW1 stated under cross-examination that ‘this kind of request got to our legal department. They handle response to our customers and ask the bank where the account is domiciled to place the account on lien, post no debit. Thereafter ask the branch to communicate to the customers.’ See page 234 of the Record of Appeal.

Now, not only this evidence was not given on any facts pleaded by either the Appellants and or the Respondent, and thus amounted to evidence given on facts not pleaded and should therefore, go to no issue, the evidence itself is not limited to the facts of the instant case but rather evidence of general position of how things ought to be done in the Respondent. The lower Court was therefore, right when it held that had the Respondent had benefit of the legal advice of its Legal Department on the questionable existence of the order forwarded to it by the Police as an Order of a Magistrate Court in Owerri, perhaps it would not have acted as it did by blocking the Appellants’ account. The evidence given by the DW1, though even in general terms, did not prove that in the instant case the Respondent did refer the Order from the Police served on the Respondent as an order of a Magistrate Court in Owerri. At any rate, the evidence of DW1, having not been based on any of the facts pleaded by either the Appellants and or the Respondent, was no evidence at all and therefore, goes to no issue in the determination of the issues as joined by the parties in their pleadings before the lower Court as in the Record of Appeal.

My Lords, the Appellants who are so desirous of upturning the refusal of the lower Court to grant punitive and exemplary damages, had conveniently forgotten or merely failed to even appeal against the decision of the lower Court expunging the evidence of the 1st Appellant as PW1, who was the sole witness at the trial for the Appellants, who was the sole witness for the Appellants before the lower Court, when it stated inter alia thus:
“The claim in this relief is seeking for the loss of income of N3,500, 000. 00. It must be recounted that the statement on oath of PW1, Claimant’s sole witness has been expunged.” See page 252 of the Record of Appeal.

My Lords, in law once there is no appeal against the finding or decision of a trial Court, that finding and or decision remains the correct state of things between the parties and both parties, as well as even the appellate Court, is bound by the findings and decisions that had not been appealed against. Furthermore, there is also no appeal against the finding by the lower Court that the act of the Respondent was not outrageous or oppressive. I hold therefore, that both the decision of the lower Court expunging the evidence of the PW1 and the holding that the act of the Respondent was neither outrageous nor oppressive, whether rightly or regrettably if wrongly, remains binding on the Appellants who had not appealed against it. See The Association of Senior Civil Servants of Nigerian & Ors V. Judiciary Staff Union of Nigeria & Ors (2014) LPELR-24185(CA) per Sir Biobele Abraham Georgewill JCA. See also Iyoho V. Effiong (2007) 4 SC (Pt. 11) 90, Adelaja & 2 Ors V. Alade & Anor (1999) 4 SCNJ 225 at 245, Union Bank V. Edionseri (1988) 2 NWLR (Pt. 74) 93, Julius Berger (Nig.) Ltd V. Femi (1993) 5 NWLR (Pt. 295) 612.

Upon a proper review of the pleadings and evidence led, the lower Court had, notwithstanding its finding and expunging the evidence of PW1, still held that on the evidence of the Respondent alone it was established that the Respondent, a Banker was under a contractual relationship with the Appellants as its Customers, failed to exercise reasonable care and skill with regards to the Appellant and was therefore, in breach of its contract with the Appellants. It then proceeded to award general damages of N100, 000. 00 against the Respondent in favor of the Appellant for the breach of contractual obligations with the Appellants. There is no appeal against this finding and the award of general damages by the lower Court. This is understandably so because in law there is no duty on the Respondent to breach its contractual relationship of Banker – Customer with the Appellants in obedience to either an unlawful order and or instruction or an order of questionable existence, and therefore, such misplaced and or purported obedience is not a justification in law for a wrongful act in law. See G.T. Bank Plc V. Adedamola (2019) 5 NWLR (Pt. 1664) 30 at p. 43, where it was held inter alia thus:
“Before freezing a customer’s account or placing any form of restrain on any bank account, a bank must be satisfied that there is an Order of Court.”
See also Zenith Bank Plc V. Yusuf Waili (2022) LPELR-57349(CA), per Sir Biobele Abraham Georgewill JCA.
The lower Court was therefore, right when it held that the relationship between the Respondent and the Appellants was that of a Banker – Customer and thus contractual in nature, a breach of which may lead to damages as it is the duty of the Respondent, the Bank to exercise reasonable care and skill in dealing with the account of the Appellants, its customer. See Agbanelo V. UBN (2000) 4 SC (Pt. 1) 233 at p. 24, where the Supreme Court had stated firmly and with finality inter alia thus:
“The Defendant’s duty to exercise reasonable care and skill in regards to the customers affairs is undoubted…A Bank has a duty under its contract with the Customer to exercise reasonable care and skill in carrying out its part with regards to operations within its contract with its Customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the Customer.”
See also Zenith Bank Plc V. Yusuf Waili (2022) LPELR-57349(CA), per Sir Biobele Abraham Georgewill JCA, Allied Bank (Nig) Limited V. Akubueze (1997) 6 NWLR (Pt. 509) 374, Union Bank of Nigeria Limited V. Nwoye (1996) 3 NWLR (Pt. 435) 135, Guaranty Trust Bank Plc V. Odeyemi Oluyinka Joshua (2021) LPELR – 53173 (CA), per Abiriyi JCA.

My Lords, the only issue is therefore, whether the lower Court was right or wrong when it declined and or refused to award punitive or exemplary damages against the Respondent in favor of the Appellants? The Appellants had vehemently contended that the lower Court was wrong when it refused to grant their proved claim for punitive or exemplary damages against the Respondent. In response, the Respondent had equally vehemently contended that there was no basis for the award of punitive or exemplary damages against the Respondent in favor of the Appellants.

So, what is exemplary or punitive damages and when in law should it be granted by the Court? In law, exemplary or punitive damages, as the name implies, are damages on an increased scale over and above special or actual or ordinary damages. It is only awarded in aggravated circumstances and are thus, punitive in nature to address proven acts of recklessness. Thus, Damages are ‘punitive’ or ‘exemplary’ when they are awarded by way of punishment of the Defendant, or as a deterrent and are for atonment for the Claimant’s loss. In GKF Investment Nigeria Ltd V. Nigeria Telecommunications Limited (2009) 13 NWLR (Pt. 1164) 344 at p. 377, the Supreme Court per Ogbuagu JSC had stated inter alia thus:
“Exemplary, punitive, vindictive or aggravated damages where claimed, are usually awarded whenever the Defendant’s conduct is sufficiently outrageous to merit punishment as where for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law and the like.”
See also GKF Investment Nigeria Ltd V. Nigeria Telecommunications Limited (2009) 13 NWLR (Pt. 1164) 344 at p. 377 per Niki Tobi JSC.
In law, therefore, punitive or exemplary damages are damages awarded in addition to actual damages when the Defendant had acted with recklessness, malice, or deceit. They are specific damages by way of penalizing the wrongdoer or making an example to others. What then is the purpose of punitive damages? In Anthony Odiba V. Tule Azege (1998) LPELR – 2215 (SC) at p. 15, the Supreme Court per Mohammed JSC had stated as follows:
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages. Vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.”
See also First Bank of Nigeria Plc & Ors V. Boniface Chukwu (2018) LPELR – 45148 (CA) per Oredola JCA.

What then in law would amount to a reckless conduct? The word ‘reckless’ is defined as characterized by the creation of substantial and unjustifiable risk of harm to others and by a conscious, and sometimes deliberate, disregard for or indifference to that risk, heedless, rash. On its part, the word ‘heedless’ as one of the elements of recklessness, is defined as the quality of being thoughtless and inconsiderate, especially conduct whereby the person acting disregards the rights or safety of others. It is often construed to involve the same degree of fault as recklessness. See the Black’s Law Dictionary, Eight Edition at pages 740 and 1298.

My Lords, having considered the entire pleadings and evidence led in the circumstances as well as the unchallenged findings of the lower Court, I cannot but agree completely with the submission of learned counsel for the Respondent, a submission I find as not only apt but also unassailable, that on the totality of the averments in the pleadings and evidence led, as in the Record of Appeal, the Appellants who claimed punitive or exemplary damages failed woefully to show that the Respondent’s conduct was sufficiently outrageous or reckless to warrant an award of punitive and or exemplary damages as was rightly held by the lower Court.
The entirety of the evidence led by the Appellants also failed to disclose any malice in the conduct of the Respondent against the Appellants. I therefore, agree with the lower Court that the act of placing a restriction on the operation of the Appellants’ account though wrong and amounted to a breach of the contract of banker-customer relationship between the Respondent and the Appellants, and thus deserving of some form of damages, but it was not such a conduct as could be regarded as reckless or high handed and or of the magnitude to warrant the award of punitive and or exemplary damages against the Respondent. See Baker Marine Nig Ltd V. Chevron Nig Ltd (2006) LPELR – 715 (SC) at P. 13. See also GKF Investment Nigeria Ltd V. Nigeria Telecommunications Limited(2009) 13 NWLR (Pt. 1164) 344 at P. 377, Anthony Odiba V. Tule Azege (1998) LPELR – 2215 (SC) at p. 15, First Bank of Nigeria Plc & Ors V. Boniface Chukwu (2018) LPELR – 45148 (CA).

In the light of all I have stated and held as above, the sole issue for determination is hereby resolved against the Appellants in favor of the Respondent.

On the whole therefore, having resolved the sole issue for determination against the Appellants in favor of the Respondent, I hold that this appeal lacks merit and is thus, liable to be dismissed. Accordingly, it is hereby dismissed.

In the result, that part of the judgment of the High Court of Federal Capital Territory, Abuja, Coram: O. O. Goodluck J, (as he then was but now JCA) in Suit No. FCT/HC/CV/2902/2018: Mr. Daniel Chinoha Bernard (Doing Business Under the Name and Style of Lichben Associates) & Anor V. First City Monument Bank Ltd delivered on 6/10/2020, declining to award punitive and exemplary damages against the Respondent in favor of the Appellants, is hereby affirmed.

There shall be not order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, Sir, Biobele Abraham Georgewill, JCA.

I agree totally with the reasoning and the conclusion that this appeal lacks merit and should be dismissed. I too do dismiss the appeal.

BATURE ISAH GAFAI, J.C.A.: I have had a preview of the judgment delivered by my learned brother, Biobele Abraham Georgewill, JCA.

I agree fully with the reasonings and conclusions therein expressed. I adopt those reasonings as mine by which I too find this appeal devoid of any merit, liable to be and is dismissed by me too.

In consequence, I affirm the judgment of the lower Court.

Appearances:

Patrick Peter, Esq. For Appellant(s)

Tairu Adebayo, Esq, with him, Daphne Edughele, Esq. For Respondent(s)