FBN PLC v. FEDERAL MINISTRY OF HEALTH & ORS (2022)

FBN PLC v. FEDERAL MINISTRY OF HEALTH & ORS

(2022)LCN/16562(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, August 31, 2022

CA/ABJ/CV/230/2020

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

FIRST BANK OF NIGERIA PLC APPELANT(S)

And

1. FEDERAL MINISTRY OF HEALTH 2. HONOURABLE MINISTER OF HEALTH 3. NATIONAL PRIMARY HEALTH CARE DEVELOPMENT AGENCY (FORMERLY NATIONAL PROGRAMME ON IMMUNIZATION) 4. ATTORNEY-GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO:

PARTIES ARE BOUND BY THE TERMS OF A CONTRACT AND NONE OF THE PARTIES IS PERMITTED TO DEVIATE FROM THE TERMS THEREOF

The relationship between a banker and its customer being contractual, it means that, the parties are bound by the terms of the contract and none of the parties is permitted to deviate from the terms thereof. Where the terms are clear, the Court is enjoined to interprete it as such without recourse to any help outside the written terms of the contract. That being so, the bank is bound to carry out the instructions of the customer within the ambit of the contractual relationship between them. Thus, where the bank acts outside the instructions of the customer, it may be liable for any loss incurred by the customer. See Wema Bank v. Alhaji Tiamiyu Oyekanmi (2017) LPELR – 50503 (CA) and Tom Total (Nig.) Ltd, v. Skye Bank Plc, (2017) LPELR – 41953. HARUNA SIMON TSAMMANI, J.C.A.

IT IS THE SETTLED LAW THAT THE RELATIONSHIP BETWEEN A BANKER AND ITS CUSTOMER IS FOUNDED ON SIMPLE CONTRACT

It is apparent from the claims before the lower Court, the oral and documentary evidence led thereon and the arguments of counsel, that the transaction between the Appellant and the 3rd Respondent leading to the claim, was based on an ordinary banker/customer relationship. It is settled law that, the relationship between a banker and its customer is founded on simple contract. See Allied Bank (Nig.) Ltd v. Akubueze (1997) 8 NWLR (Pt. 509) 374, D, Stephens Industries Limited & Anor v. Bank of Credit and Commerce International (Nig.) Ltd, & Anor, (1999) 11 NWLR (Pt, 625) 29 and U.B.N, Plc, v. Ajabule& Anor, (2011) LPELR – 8239 (SC). In other words, the relationship between a bank and its customer is contractual. HARUNA SIMON TSAMMANI, J.C.A

THE PLAINTIFF IS BOUND TO PLACE CONCRETE EVIDENCE BEFORE THE COURT

Hereunder reproduced is the legal definition of Black’s Law Dictionary by the Court on page 491 of the Record:
“……The phrase is defined as “a withdrawal of money from a bank in excess of the balance on the deposit… A line of credit extended by a bank to a customer (esp. an established or institutional customer) who might withdraw on an account?
The Court following the foregoing opined as follows and correctly in my view on page 491 of the Record:
“…..The definition does not seem to me to suggest that overdraft can be taken as a matter of course by a customer of a bank. To establish this claim, the Plaintiff is bound to place concrete evidence before the Court. Such evidence must demonstrate that the customer requested and the bank granted the request for the overdraft.” ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

THE BURDEN RESTS ON A PARTY WHO ASSERTS A THING AND WHOSE CASE WILL FAIL IF HE DOES NOT ESTABLISH HIS CLAIM

The burden rests on a party who asserts a thing and whose case will fail if he does not establish his claim on the preponderance of evidence or balance of probabilities. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1, HAUMA V. AKPA-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214 and LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

A PARTY CANNOT RELY ON THE WEAKNESS OF HIS OPPONENT’S DEFENCE

A party cannot rely on the weakness of his opponent’s defence or the opponent’s ill-preparedness, but must rely on the strength of his own case. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the Federal High Court, Abuja, delivered by Honourable Justice I. E. Ekwo on September 24th, 2019 in Suit No. FHC/ABJ/CS/44/2005, wherein the case of the Appellant (the Plaintiff at the Court below) was dismissed for lack of proof.

The Appellant has approached this Court being dissatisfied with the decision of the Court below. It’s amended Notice and Five (5) Grounds of Appeal is dated and filed October 14th, 2020.

As garnered from the printed record before this Court, the facts which culminated into this appeal are that the Appellant’s story is that as the banker to the 3rd Respondent, it was instructed vide Exhibit 4 by the 3rd Respondent to fix the sum of 2,440,000.00 Euros at the rate of 25% in its bank if acceptable to it and where it is not acceptable at that rate, it should “transfer the total funds to Hallmark Bank Account number K102053100.”

The Appellant’s story is that it was unable to fix the money at the rate mentioned by the 3rd Respondent and in order to transfer the sum to Hallmark Bank Account of the 3rd Respondent as requested it had to change the money from Euros to US Dollar and then to Naira. Still for the purpose according to the Appellant, it sold the money changed to US dollars to the Central Bank of Nigeria. That it wrote to inform the 3rd Respondent of its intention to sell the money to the Central Bank of Nigeria in order to be able to transfer it to the 3rd Respondent’s Hallmark stated Account. And it did transfer a sum of N2,042,900,381.72 (Two Billion, Forty-Two Million, Nine Hundred Thousand, Three Hundred and Eighty-One Naira, Seventy-Two Kobo), Naira equivalent of the said Euros into the Hallmark Bank account of the 3rd Respondent. Thereafter, the 3rd Respondent requested for its money which it paid back at a higher rate as it had to buy foreign currency and at that time at a higher rate than when it sold the 3rd Respondent’s Euros. It therefore lost money in that regard. That the instruction of the 3rd Respondent was for the money to be paid into the Hallmark Bank account which is a Naira account and therefore the need for the change. The Appellant for that reason sued the 3rd Respondent for the sum of N51,938,279.69(Fifty One Million, Nine Hundred and Thirty Eight Thousand Two Hundred and Seventy Nine Thousand Naira, Sixty Nine Kobo) being the interest which accrued on the Naira equivalent of US $2,078,264,44 (N234,900,381.72) paid by the Appellant into the 3rd Respondent’s Hallmark account as fixed deposit between December 2001 and October 2004. It also sued for the sum of N28,657,196.43 (Twenty Eight Million, Six Hundred and Fifty Seven Thousand, One Hundred and Ninety Six Naira Forty Three Kobo) as the sum overdrawn on the 3rd Respondent’s National Programme on Immunization/National Immunization Day dedicated account maintained by the Appellant.

On the other hand, the 3rd Respondent’s position is that the Appellant went beyond its instruction and was wrong. The Appellant’s case as already stated was dismissed and the instant appeal.

The parties have complied with the Rules of this Court as they have filed and exchanged their briefs. The amended Appellant’s brief is dated and filed October 14th 2020, deemed as properly filed and served on November 5th 2020 and settled by Boonyameen Babajide Lawal Esq., the 1st and 2nd Respondents’ joint brief dated September24th, 2020 filed September 28th, 2020, deemed as properly filed and served November 5th, 2020 was settled by Mohammed Saidu Diri Esq., 3rd Respondent’s brief dated July 14th, 2020 filed July 15th, 2020, deemed as properly filed and served on November 5th, 2020 was settled by Ugbede Idachaba Esq., and the 4th Respondent’s dated July 20th, 2020, filed July 28th, 2020, deemed as properly filed and served on November 5th, 2020 was settled by Mrs. C. I. Nebo.

The Appellant seeks the following reliefs before this Court:
“i. AN ORDER of this Honourable Court allowing this appeal.
ii. AN ORDER of this Honourable Court setting aside the judgment of the trial Court delivered on 24th September, 2019, in respect of the Appellants (as Plaintiffs) substantive suit.
iii. AN ORDER of this Honourable Court granting the reliefs sought by the Appellant as per the amended Writ of Summons and Further Amended Statement of Claim both filed on 12th February, 2010, at the lower Court.”

The issues distilled by the parties are as follows:
APPELLANT’S FIVE (5) ISSUES FOR DETERMINATION
“i. Whether the lower Court erred when it held that the conversion of the 3rdRespondent’s EU Funds was outside the purview of the 3rd Respondent’s letter dated 13th December, 2001 (i.e. Exhibit 4) Ground 1.
ii. Whether the lower Court erred when it held that the Appellant’s letter dated 21st December, 2001 addressed to the 3rd Respondent – Exhibit D4 – Constitutes a counter-offer. Ground 2.
iii. Whether the lower Court erred when it concluded that the Appellant was not entitled to interest on the sum of N234,900,381.72 remitted into the 3rd Respondent’s fixed deposit Hallmark bank Account No. K102053100 between 2001 and October 2004. Ground 4.
iv. Whether the lower Court was right to hold that the 3rd Respondent was not indebted to the Appellant for the sum of N28,657,196.43 (twenty-eight million, six hundred and fifty-seven thousand, one hundred and ninety-six Naira, forty-three Kobo) overdrawn on the 3rd Respondent’s National Programme on Immunization/National Immunization Day dedicated account maintained by the Appellant. Ground 3.
v. Whether the trial Court was right to dismiss the Appellant’s claim for failure of the Appellant to prove its case. Ground 5.”

1st AND 2nd RESPONDENTS’ ISSUES FOR DETERMINATION
“1. Whether issues I, II, III and V of the Appellant (sic) Brief of Argument are incompetent before this Honourable Court and liable to be struck out for being a proliferation of issues.
2. Whether the trial judge was right in law when he held that the conversion of the 3rd Respondent (sic) EU Funds was outside the purview of the terms in the 3rd Respondent (sic) letter dated 13th December, 2001.
3. Whether the learned trial judge was right in law when he held that the Appellant was not entitled to interest on the sum of N234,900,381.72.
4. Whether the learned trial Judge was right in law in holding that the 3rd Respondent was not indebted to the Appellant for the sum of N28,657,196,43 (Twenty-eight million, six hundred and fifty-seven thousand, one hundred and ninety-six naira, forty-three kobo) by way of overdraft.”
3rd RESPONDENT’S FIVE (5) ISSUES
“I. Whether the learned trial Judge was right in law when the trial Court held that the conversion of the 3rd Respondent EU Funds was outside the purview of the terms in the 3rd Respondent (sic) letter dated 13th December, 2001 (Exhibit 4).
II. Whether the learned trial Judge was right in law when the trial Court held that the Appellant (sic) letter dated the 21st December, 2001 addressed to the 3rd Respondent (Exhibit D4) constitute a counter-offer.
III. Whether the learned trial judge was right in law when the trial Court held that the Appellant was not entitled to interest on the sum of N234,900,381.72.
IV. Whether the learned trial judge was right in law in holding that the 3rd Respondent was not indebted to the Appellant for the sum of N28,657,196.43 (Twenty Eight Million, Six Hundred and Fifty-Seven Thousand, One Hundred and Ninety-Six Naira, Forty-Three Kobo).
V. Whether the trial Court was right when the Honourable Court dismissed the Appellant (sic) for failure of the Appellant to prove its case.”

The 4th Respondent repeated the issues formulated by the Court below as follows:
“a. Whether the Plaintiffs conversion of the Euro Fund was consistent with the 3rd Defendants instruction (s) as contained in Exhibit 4 (3rd Defendant’s letter to the Plaintiff dated 13th December, 2001.
b. Whether the Plaintiff is entitled to the interest claimed on the Naira equivalent of US $2,078,266.44 (i.e.N234,900,381.72) lodged in the 3rd Defendant’s Hallmark bank Account.
c. Whether the 3rd Defendant obtained overdraft facility from the Plaintiff.”

Having very carefully considered all the aforegoing quoted issues, one is of the view and humbly that Issue v by the Appellant will justly and fairly determine this appeal. In consequence, Appellant’s Issue V is herein adopted.

SUBMISSION ON BEHALF OF THE APPELLANT
The learned Appellant’s Counsel submitted that the clear and unequivocal instructions of the 3rd Respondent, Exhibit 4 were in two (2) parts as follows that:
“i. Upon receipt of the funds, the Appellant is requested to fix the funds at an interest rate of 25% and
ii. If the Appellant is unable to fix the funds at this rate, the Appellant is to transfer the total funds to Hallmark Bank Account number K102053100.”

And that contrary to the finding of the Court, it actually transferred the naira equivalent of the total Euro Fund N2,042,900,381.72, (Two Billion, Forty Two Million, Nine Hundred Thousand, Three Hundred and Eighty One Naira, Seventy Two Kobo) to the 3 respondent’s Hallmark Bank Account, a Naira account as the fact was admitted by the DW3 during cross-examination. He argued that the only currency that could have been paid into the said Hallmark Bank account which is a Naira denominated account is Naira and not Euros. That for it to adequately comply with the 3rd Respondent’s instructions in Exhibit 4, the Appellant was constrained to convert the Euro funds to Naira. And that the CBN supported the step it took in its certified report, Exhibit 1, written to the 3rd Respondent and that the conversion “was done in good faith and on due consultations.” It was therefore wrong for the Court to have concluded the way it did that the step of converting the Euro to Naira was “quite outside the purview of the terms in Exhibit 4…” that is, outside the 3rd Respondent’s instruction to the Appellant.

It was argued on the Appellant’s behalf that there was no counter-offer by the Appellant to the 3rd Respondent as was erroneously found by the Court from Exhibit D4, the Appellant’s letter to the 3rd Respondent dated 20th December, 2001 wherein the Appellant informed the 3rd Respondent of its intention to sell the entire amount in Euro to the CBN at the prevailing bid rate and to transfer the Naira proceeds to the Hallmark Bank account of the 3rd Respondent. In support, he cited the cases of BEST NIG. LTD. V. B.H. NIG. LTD. 2011 5 NWLR PT. 1239 95, ASHAKA CEMENT PLC. V. ASHARATUL MUBASHSHURUN INVESTMENT LTD. 2019 LPELR- 46541 SC. Therefore, he submitted that the Appellant did not in any manner reject or alter the 3rd Respondent’s instructions nor proffer a counter-offer but it was to ensure the highest professional care and skill that it forwarded Exhibit D4 to the 3rd Respondent. And cited the case of NATIONAL REVENUE MOBILIZATION ALLOCATION & ORS V. AJIBOLA JOHNSON & ORS 2019 2 NWLR PT. 1656 247 in support. He argued further that without conceding that Exhibit D4, the Appellant’s letter was a counter-offer, the 3rd Respondent’s silence amounted to constructive acceptance of the said counter-offer.

Consequently, he submitted that the Appellant was entitled to the interest which accrued on its principal sum of N234,900,381.72 remitted into the 3rd Respondent’s Hallmark bank account between 28th December, 2001 and August, 2002 when the sum of N234,900,381.72 Naira, equivalent of the sum of US $2,078,264.44 which was purchased by the Appellant, was returned by the 3rd Respondent without the interest it must have accrued over the period. That given the increase in the exchange rate of the US dollars the Appellant had to return the sum of N261,924,319.44 as opposed to the sum of N234,900,381.72 of the initial exchange in order to effect the return of the US $2,078,264,44. And that the Appellant in consequence sought payment of the sum of N51,938,279.69 as the accrued interest.

The learned Appellant’s Counsel submitted that the Court was wrong to hold that the Central Bank of Nigeria’s (CBN’s) recommendation, Exhibit 3 was merely persuasive as the CBN is the supervisory and regulatory bank over all the other banks in the Country and referred to Section 61 (1) (a) and (3) of the Banks and Other Financial Institutions Act, Cap B3, LFN 2004. He contended that there was constructive equitable trust in favour of the Appellant in respect of the accrued interest with the 3rd Respondent and cited in support the case of IBEKWE V. NWOSU 9 NWLR PT. 1251 1. That, the 3rd Respondent should not be allowed to eat its cake and have it.

On the issue of the overdraft, he submitted that the Court misconceived the Appellant’s claim. He contended that the overdraft on the 3rd Respondent’s account was as a direct result of debiting the sum of N26,186,050.00. And that the Appellant was entitled to any accruing interest thereon. In support he cited the case of UNITED BANK FOR AFRICA PLC & ANOR V. LAWAL 2007 LPELR-9042 CA.

It was the assertion on behalf of the Appellant that it proved its case by credible oral and documentary evidence. That this Court should for that purpose re-evaluate the evidence by the Appellant before the Court and in support cited the case of ONISAODU V. ELEWUJU 2006 13 NWLR PT. 998 517. Therefore, the decision of the Court was perverse. In conclusion, he urged that the judgment of the Court be set aside and the matter be determined in favour of the Appellant.

SUBMISSION ON BEHALF OF THE 1st AND 2nd RESPONDENTS
The learned Counsel for the 1st and 2nd Respondents submitted that issues I, II, III and V of the Appellants should be struck out for multiplicity, that two issues cannot be formulated from a single ground as it formulated two issues in respect of grounds 1, 2 and three issues in respect of Ground 4 of the Notice of Appeal. In support, he cited the cases of THOMAS V. ADERINOKUN 2008 16 NWLR PT. 1112 189 and JAMU V. AYINLA 2009 17 NWLR PT. 1170 149 and urged that the Appellant’s brief be struck out having being contaminated.

He submitted that the Court was right to have held that the conversion of the 3rd Respondent’s EU Funds was outside the terms of the 3rd Respondent’s instructions to the Appellant as their banker customer relationship is contractual and in support cited the cases of AFRIBANK NIGERIA PLC V. ANUEBUNWA 2012 4 NWLR PT. 1291 560 and LINTON IND TRADING CO. NIG. LTD V. C.B.N 2015 4 NWLR PT. 1448 94. That given Exhibit 4, there is nowhere in writing or oral that the 3rd Respondent instructed the Appellant to convert the funds to Naira. And that the Appellant failed to show where the 3rd Respondent agreed to their move to convert the money.

It was argued on behalf of the 1st and 2nd Respondents that the 3rd Respondent and the Appellant agreed to payment of interest in respect of the sum of 14234,900,381.72 as a party cannot unilaterally impose a term of contract on the other and cited in support the case of R. M. A & F C V. U.E.S. LTD2011 9 NWLR PT. 1252 379 CA. And that since the said funds were not the Appellant’s it cannot be entitled to the interest on it and cannot in anyway be compensated there from as they were illegally converted. He submitted that the doctrine of constructive trust raised by the Appellant is inapplicable herein.

On the issue of overdraft facility, the learned Counsel contended that the 3rd Respondent never requested for it from the Appellant on the National Program on Immunization account and referred to the testimony of the DW3 before the Court at the trial. Further that the 3rd Respondent’s account was never overdrawn and referred to Exhibits DIO and 11. In conclusion, he urged that the instant appeal be dismissed.

SUBMISSION ON BEHALF OF THE 3rd RESPONDENT
The learned Counsel for the 3rd Respondent submitted that Exhibit 4 established the contractual relationship between the Appellant and the 3rd Respondent but that the Appellant failed to fulfill its obligation, acted outside the 3rd Respondent’s instructions, was not transparent and failed to exercise reasonable care and skills in carrying out the 3rd Respondent’s instructions. Therefore, the Appellant had no case against the Respondents.

He submitted that Exhibit D4, the Appellant’s letter which sought the 3rd Respondent’s consent for the conversion of the EU Funds was a counter-offer as the instructions in Exhibit 4 were not accepted unconditionally by the Appellant. Therefore, Exhibit 4, the original offer was repudiated he added. In support, he cited the cases of BEST NIG LTD V. B.H NIG LTD 2011 15 NWLR PT. 1239 95, AFROTEC TECH SERV. NIG V. MIA & SONS LTD 2000 15 NWLR PT. 692 730 and ASHAKA CEMENT PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LTD 2019 LPELR 46541 SC.

On whether the Appellant was entitled to interest, he submitted that upon the Court’s finding that the Appellant went outside the 3rd Respondent’s instruction, it was not entitled to interest. Further that the funds were not the Appellant’s and the 3rd Respondent’s consent in respect of the conversion was not obtained therefore, the Appellant cannot be compensated therefrom, in support he cited the case of NASARALAI ENTERPRISES LTD. V. ARAB BANK NIG. LTD. 1988 1039 1061. He submitted further in that regard that the letter of October 17th, 2002, Exhibit 3 from CBN to the 3rdRespondent was persuasive only.

It was argued that the doctrine of constructive trust by the Appellant is inapplicable to the Appellant’s case and cited in support the cases of IBEKWE V. NWOSU 2011 9 NWLR 1251 1 and KOTOYE V. SARAKI 1994 7 NWLR PT. 357 414.

With regard to the issue of the overdraft raised by the Appellant against the 3rd Respondent, it was submitted that the 3rd Respondent led evidence both oral and documentary as contained in Exhibits D6, D10, Dll and D17 to show that it did not apply for overdraft facility and that its account was not overdrawn. He submitted in that regard that a loan is a matter of special agreement which was absent between the Appellant and the 3rd Respondent as regards the alleged overdraft facility and cited in support the cases of L. O. M NWOYE & SONS CO LTD V. CO-OPERATIVE & COMMERCIAL BANK NIG. PLC 1993 8 NWLR PT. 310 210 and AYANSINA V. CO-OPERATIVE BANK LTD 1994 5 NWLR PT. For that reason, the Appellant is not entitled to the amount claimed he submitted. More so that it failed to establish the indebtedness of the 3rd Respondent as its account was in credit as at the time it authorized the disbursement of the sum of N26,180,050.00 and no credible evidence was led in its proof and cited in support the cases of OGBOJA V. ACCESS BANK PLC 2016 2 NWLR PT. 1496 291 and FIRST BANK OF NIGERIA PLC V. MAMMAN NIGERIA LTD 2001 FWLR PT. 31 P. 289.

He submitted that the Court’s finding is supported by the evidence before it as its evaluation is consistent with the settled principles of law. In support, he cited the cases of BODI V. AGYO 2003 16 NWLR PT. 846 305, HASHIDU V. GOJE 2003 15 NWLR PT. 843 352 and MAINSTREET BANK NIG PLC V. EGWU 2015 15 NWLR PT. 14 82. In conclusion, he urged that the appeal be dismissed.

SUBMISSION ON BEHALF OF THE 4th RESPONDENT
The learned Counsel for the 4th Respondent submitted that the Court was right to have found that the words in Exhibit 4, the 3rd Respondent’s instruction to the Appellant, were unambiguous and therefore applied their ordinary meanings. In support, he cited the cases of IMAH V. OKOGBE 1993 9 NWLR PT 316 159, BABATUNDE & ANOR V. BANK OF THE NORTH LTD. & ORS 2011 LPELR 8249 SC and NNEJI V. ZAKHEM CON NIG. LTD. 2006 LPELR 2059 SC. He contended that the Appellant’s letter of December 21st,2001 wherein it sought instruction from the 3rd Respondent to convert the Euro Funds to Naira and transfer to the said Hallmark Bank was a different offer and that the Court was right to have so found. Further that the Court was right to have held that there was no evidence by the Appellant to show that the 3rd Respondent consented to such conversion and neither did it show that it was the usual practice between the Appellant and the 3rd Respondent. Therefore, the conversion of the funds by the Appellant was outside the 3rd Respondent’s instruction to it, he submitted. He submitted that the Appellant’s reliance on the CBN’S letter does not hold water as the letter was merely advisory and persuasive as held by the Court.

It was submitted that the Court’s position that the Appellant was not entitled to any interest on the sum fixed is unimpeachable and in support cited the cases of PDP & ORS V. EZEONWUKA & ANOR 2017 SC LPELR and TERIBA V. ADEYEMO 2010 SC LPELR. On the issue of overdraft, the learned Counsel for the 4th Respondent submitted that there was no evidence to that effect as the Court correctly found. In conclusion, he urged that the appeal be dismissed.

THE POSITION OF THE COURT
I have very calmly considered all the submissions of the parties herein as well as the record before this Court. And having so very carefully done, I shall proceed in the determination of this appeal by considering the only issue adopted.

SOLE ISSUE
“Whether the trial Court was right to dismiss the Appellant’s claim for failure of the Appellant to prove its case.”

In considering this issue, I shall equally look at the findings of the Court which had the singular opportunity to listen, watch the demeanor of the parties as it analyzed and evaluated the evidence placed before it.

The Appellant’s case as earlier stated in the main, is against the 3rd Respondent. At the risk of being repetitious, the Appellant sought payment from the 3rd Respondent in the sum of N51,938,279.69 (Fifty One Million, Nine Hundred and Thirty Eight Thousand Two Hundred and Seventy Nine Thousand Naira, Sixty Nine Kobo) as accrued interest from December 2001 to October 2004 on the Naira equivalent of the sum of US $2,078,264.44 from the converted 3rd Respondent’s Euro Funds. The US $2,078,264.44 was transferred inits equivalent in Naira to the 3rd Respondents Hallmark Bank account as fixed deposit in the sum of £4234,900,381.72 only. Secondly, that the sum of N28,657,196.43 (Twenty Eight Million Six Hundred and Fifty Seven Thousand, One Hundred and Ninety Six Naira, Forty Three Kobo) was due to be paid by the 3rd Respondent as an overdraft plus accrued interest in respect of the latter’s National Programme on Immunization/National Immunization Day dedicated account maintained by the Appellant. The Appellant claimed that it complied with the instructions (Exhibit 4) of the 3rd Respondent on the latter’s EU Funds of 2,440,000.00 Euro to the Appellant, its banker. Both sides agreed that the 3rd Respondent’s instruction was unambiguous and clear which instruction is as follows and contained on page 485 of the Record:
“I write to inform you that in the event in which you confirm the remittance of the European Union funds into your bank, you are by this letter kindly requested to fix the funds at an interest rate of twenty-five (25%) as this is the rate applying to all NFI fixed deposit accounts in other banks.
However, if you are unable to fix the funds at this rate, please transfer the total funds to Hallmark Bank Account number KI 02053100.”

The following is the finding of the Court on the foregoing Exhibit 4 also on page 485 of the Record:
”…… The first thing I note about Exhibit 4 is that its content is unambiguous and clear.”
It correctly interpreted Exhibit 4 thus:
“The interpretation of Exhibit 4 is that by the said letter, the 3rd Defendant directed the Plaintiff that in the event that Plaintiff confirmed the remittance of the European Union funds into its bank, the Plaintiff was to fix the funds at an interest rate of twenty-five (25%) which was the rate applying to all NFI fixed deposit accounts in other banks. In the event that the Plaintiff is unable to fix the funds at this rate, the Plaintiff was to transfer the total funds to Hallmark Bank Account number KI 02053100.”

The Court further simplified the 3rd Respondent’s instruction to the Appellant banker thus on page 486 of the Record:
“i. Confirm the remittance of the European Union funds into your bank,
ii. Fix the funds at an interest rate of twenty-five (25%) as this is the rate applying to all NFI fixed deposit accounts in other banks, and
iii. If you are unable to fix the funds at this rate, please transfer the total funds to Hallmark Bank Account number KI 02053100.”

The Court in my view correctly found that there ought to have been a clear and unmistakable go ahead or approval from the 3rd Respondent in response to the Appellant’s letter, Exhibit D4 through which the Appellant sought the 3rd Respondent’s consent as follows on page 486 of the Record:
“Further to our letter of 20/12/2001 on the receipt of the subject matter, the response to which we are yet to receive from you, we hereby notify you of our intention to sell the entire amount to the Central Bank of Nigeria on Monday, 24th December, 2001 at the prevailing Bid rate.
The Naira proceeds of the sale shall be transferred to the Hallmark Bank of Nigeria Plc’s Account No KI02053100 as requested in your letter of 14/12/2001 to us.”

It needs be noted that the Court below interpreted the foregoing Appellant’s letter to amount to a counter-offer to the 3rd Respondent. In my considered view and humbly, the issue of a counter-offer should not have arisen at all as Exhibit 4,should not be considered as an offer by the 3rd Respondent to the Appellant. It was nothing more than a simple and clear Customer’s regular banking instruction to its bank with regard to the customer’s funds, (account) in the bank’s custody. To say that the Appellant’s letter, Exhibit D4, a letter through which the consent of the 3rd Respondent was sought, was an attempt to counter the 3rd Respondent’s instruction, Exhibit 4, in my humble view, is a more correct reflection of the banking transaction between both parties. Be that as it may, however the Appellant’s letter is looked at, the need and necessity for the consent of the 3rd Respondent before conversion of its Euro Funds to US Dollar and thereafter to Naira, was of grave consequence to the banking relationship between the parties and the case of the Appellant.

In its evaluation of evidence, the Court below found and correctly on page 487 of the Record with respect to whether the 3rd Respondent gave its consent for its Euro Funds to be changed to Naira thus:
”…..I have not seen any evidence led by the Plaintiff that the 3rd Defendant accepted the terms or gave consent sought by the Plaintiff in Exhibit D4. Without any such evidence, no argument can be offered in replacement thereof.”
It further found as follows on page 488 of the Record:
“The evidence in this case establishes the fact that the Plaintiff confirmed the remittance of the funds to the 3rd Defendant per Exhibit D3. The Plaintiff did not fix the funds at an interest rate of twenty-five (25%) as this is the rate applying to all NFI fixed deposit accounts in other banks, and, did not transfer the total funds to Hallmark Bank Account number KI02053100.
In conclusion on this point, it is my view that the voyage of the Plaintiff in converting the fund into Naira was entirely that of the Plaintiff quite outside the purview of the terms in Exhibit 4.”

Having very carefully considered the Record before this Court and all the processes by the parties for and against on the issue whether or not the Appellant correctly and properly complied with the 3rd Respondent’s instruction, Exhibit 4, one finds no reason to disagree with the foregoing finding of the Court in respect of the issue. There is no record of the response of the 3rd Respondent on the Appellant’s intention to convert the Euro Funds. Further and in my view humbly, the instruction as both parties agreed and found by the Court was clear and unambiguous; that where the Appellant was unable to fix the funds at the stated rate by the 3rd Respondent, it should “‘transfer the total funds to Hallmark Bank Account number KI02053100”. The words “transfer the total funds” would not appear to accommodate, involve, imply or mean ordinarily, that the Appellant was to convert the Funds from Euro to Dollar and then to Naira. If that be the correct position, the Appellant needed to have the clear and unmistakable consent of or go ahead from the 3rd Respondent which was absent before it did the conversions. Having not got the 3rd Respondent’s consent, the Appellant acted outside the instruction, Exhibit 4, given to it.

Having found in the foregoing, the next issue to resolve will be the impact of such finding vis a vis the claim of the Appellant, that it is entitled to the accrued interest on the Naira equivalent of the sum of US $2,078,266.44, N234,900,381.72, which the Appellant paid into the 3rd Respondent’s Hallmark Bank account. The Court stated as regards the third leg of the 3rd Respondent’s instruction to the Appellant, that where it was unable to fix the funds at the stated rate it should transfer the total funds to the Hallmark Bank account as follows on page 489:
“I do not see this as authorizing transfer in any other currency than that which the Plaintiff confirmed receipt of in Exhibit D3. n, In my opinion transfer to Hallmark Bank was to be done in the total amount received by the Plaintiff. The argument of the Plaintiff to the contrary does not represent the terms of the transaction.”

The letter of the Central Bank of Nigeria dated October 17th, 2002 in support of the Appellant’s conversion of the funds and demand for the accrued interest on the sum of 44234,900,381.72 transferred to the 3rd Respondent’s Hallmark Bank account held by the Court to be persuasive is upheld as such. One agrees with the Court that banking transactions are very much dependent on express terms between the parties and implied terms must be established on known banking convention or practice.

On the matter of the Appellant’s claim of the sum of 1428,657,196.43 interest inclusive as overdraft on the account of the 3rd Respondent; the issue came up according to the Appellant after all the 3rd Respondent’s accounts with the Appellant were put together in the Abuja main branch in 2002. From a comprehensive reconciliation exercise of the 3rd Respondent’s account. One agrees with the Court’s position on the interpretation of the word overdraft and its implication regarding the claim of the Appellant. Hereunder reproduced is the legal definition of Black’s Law Dictionary by the Court on page 491 of the Record:
“……The phrase is defined as “a withdrawal of money from a bank in excess of the balance on the deposit… A line of credit extended by a bank to a customer (esp. an established or institutional customer) who might withdraw on an account?
The Court following the foregoing opined as follows and correctly in my view on page 491 of the Record:
“…..The definition does not seem to me to suggest that overdraft can be taken as a matter of course by a customer of a bank. To establish this claim, the Plaintiff is bound to place concrete evidence before the Court. Such evidence must demonstrate that the customer requested and the bank granted the request for the overdraft.”

It stated further in that regard thus still on page 491 of the Record:
“It is my view that a statement of account of the 3rd Defendant with the Plaintiff ought to have been tendered to substantiate this assertion. This was not done…….”
On page 492 of the record, it therefore concluded as follows:
“…. I am therefore safe to find that there is no sufficient evidence before me to enable me find in favour of the Plaintiff in this regard and I so hold.”

In my considered view and humbly, one cannot fault the position of the Court. A party who asserts must prove and it is done by the balance of probabilities or preponderance of credible and cogent evidence. The Appellant from the record failed to prove its assertion on the overdraft facility and therefore, the claim must fail. In consequence, the singular issue is resolved against the Appellant.

In the result, this appeal cannot be allowed it fails and is hereby accordingly dismissed. The judgment of the Federal High Court, Abuja, delivered by Hon. Justice I. E. Ekwo on September 24th 2019 is hereby affirmed.

THE CROSS-APPEAL
The Cross-Appellant (the 3rd Defendant at the Court below) being dissatisfied with part of the decision of the Federal High Court, Abuja, delivered by Hon. Justice I. E. Ekwo on September 24th, 2019 has cross-appealed. The Court dismissed the Cross-Appellants notice of preliminary objection challenging the jurisdiction of the Court and its Counter-claim.

Parties in compliance with the Rules of this Court filed and exchanged their briefs. The Cross-Appellant’s dated March28th, 2022 and filed same date was settled by Ugbede Idachaba Esq. 1st Cross-Respondent’s brief is dated and filed April 21st, 2022 and was settled by Boonyameen Babajide Lawal Esq. The 2nd and 3rd Respondents’ brief was withdrawn and struck out and the 4th Cross-Respondent did not file any brief.

The Cross-Appellant submitted the following four (4) issues:
“i. Whether the learned trial judge was right in law in holding that the 1st Respondent claim at the trial Court was not statute barred and that the 1st Respondent (sic) claim against the Cross-Appellant at the trial Court does not fall within the purview of Section 2 (a) of the Public Officer Protection Act 2004 (Grounds 1 and 2 ).
ii. Whether the learned trial judge was right in law in holding that the counter-claim/cross-action of the cross-appellant was not proved by preponderance of evidence as required by law. (Ground 3).
iii. Whether the learned trial Judge was right in law holding that he was unable to countenance the counter-claim as it constitutes claims that are not (sic) any manner, however, related to the principal claim in this action (Ground 4).
iv. Whether the learned trial Judge properly evaluated the documentary evidence led by the Cross-appellant during trial in order to prove the counter claim. (Ground 5)”

The 1st Cross-Respondent submitted the following four (4) Issues:
“a. Whether the trial Court erred when it held that the Cross-Appellant’s claim was not statute barred and the 1st Respondent (sic) claim against the Cross-Appellant at the trial Court does not fall within the purview of Section 2 (a) of the Public Officer Protection Act 2004.
b. Whether the trial Court erred when it held that the counter-claim/cross-action of the Cross-appellant was not proved by preponderance of evidence as required by law.
c. Whether the trial Court erred when it held that the counter-claim is not related to the principal claim.
d. Whether the trial Court properly evaluated the documentary evidence led by the Cross-Appellant.”

I have very carefully considered the two sets of issues by the parties. I believe that a single Issue as follows will justly and fairly determine this appeal:
“Whether or not the Court below was right when it dismissed the Cross-Appellant’s preliminary objection and the Counter-claim as lacking merit.”

SUBMISSIONS BY THE PARTIES
CROSS-APPELLANT’S SUBMISSION
The learned Cross-Appellant’s Counsel submitted in the main that the Court was wrong to have held that the 1st Respondent’s case was not statute barred and that it did not fall within the provision of Section 2(a) of the Public Officer Protection Act of 2004. In support, he cited the cases of TEXACO PANAMA INC. V. SPDC LTD 2002 FWLR PT. 96 579, EGBE V. YUSUF 1992 6 NWLR PT. 245 1, EKEOCHA V. CUSTOMS, IMMIGRATION & PRISON SERVICE BOARD 2007 ALL FWLR PT. 392 1976 and EGBE V. ADEFARASIN 1987 1 NWLR PT. 47 1.

He submitted that the Cross-Appellant proved its case by cogent and credible oral and documentary evidence such as Exhibits 11, D6 and D17 and in support cited the cases of AFRIBANK NIG. PLC. V. ANUEBUNWA 2012 4 NWLR PT. 1291 560 and LINTON IND TRADING CO. NIG. LTD. V. CBN 2015 4 NWLR PT. 1448 94.

He argued that the counter-claim related to the general banking relationship between the Cross-Appellant and the 1st Cross-Respondent.

He therefore urged this Court to re-evaluate the evidence of the Cross-Appellant in respect of the counter-claim. In conclusion, he urged that the Cross-Appeal be allowed.

1st CROSS-RESPONDENT’S SUBMISSION
The learned Counsel for the 1st Cross-Respondent in the main submitted that the Court was right when it held as it did with regard to the Protection of Public Officers Act. And that the Cross-Appellant failed to refer to any specific Act or Law or public duty the Cross-Appellant was executing in support of its case by withholding the accrued interest on the funds lodged in the Cross-Appellant’s Hallmark Bank account or its failure to settle the outstanding sums on its account. He submitted further that in support of the Court’s stance, matters in respect of breach of contract or recovery of debt are not within Section 2(a) of the said Act and cited in support the case of ROE LIMITED V. UNN 2018 6 NWLR PT. 1616 420 and RAHAMANIYA UNITED NIG. LIMITED V. MINISTER OF FEDERAL CAPITAL TERRITORY & 3 ORS 2021 481. The 1st Cross-Respondent suit was therefore never barred by statute he submitted.

The learned Counsel argued for the 1st Cross-Respondent that the Cross-Appellant failed to prove its counter-claim as there was no cogent proof in support of the reliefs sought and cited in support the case of KANO V. MAIKAJI 2011 17 NWLR PT. 1275 139, AKIBU V. ODUNTAN 1992 2 NWLR PT. 22 210 and ETAJATA V. OLOGBO 2007 16 NWLR PT. 1061 554. In conclusion, urged that the Cross-Appeal be dismissed.

THE POSITION OF THE COURT
I have calmly and carefully read through the record and the processes by the parties in this appeal. Having so carefully done, I shall proceed with the determination of the only issue adopted which for ease of reference is hereunder reproduced.

SOLE ISSUE
Whether or not the Court below was right when it dismissed the Cross-Appellant’s preliminary objection and the counter-claim as lacking merit.

I shall consider the singular issue along with the findings of the Court below which was the Court that had the singular opportunity to listen to the witnesses and watch their demeanor.

The reliefs sought in the main by the Cross-Appellant Counterclaimant at the Court below were:
“i. For the sum of N162,790,172.29 (One Hundred and Sixty Two Million, Seven Hundred and Ninety Thousand, One Hundred and Seventy-Two Naira, Twenty Nine Kobo) only representing wrong debits, excess/unauthorized charges and unutilized fund arising from the following particulars:
a. Excess charges of N16,128,888.22 (Sixteen Million, One Hundred and Twenty Eight Thousand, Eight Hundred and Eighty Naira, Twenty Two Kobo) only arising out of the operation of the 3rd Defendant’s Account with the Plaintiff between 1999-2003.
b. Unutilized funds of N89,655,362.00 (Eighty-Nine Million, Six Hundred and Fifty-Five Thousand, Three Hundred and Sixty Two Naira) being the aggregate of unutilized funds to be refunded by the Plaintiff in respect of disbursements for NIDs from 2000-2001.
c. Wrong debit of interest earned in Hallmark Bank amounting to the sum of N34,749,894.07 (Thirty Four Million, Seven Hundred and Forty-Nine Thousand, Eight Hundred and Ninety Four Naira, Seven Kobo) plus unreversed wrong debit of 4420,740,050.00 (Twenty Million, Seven Hundred and Forty Thousand, Fifty) totaling 4455,489,944.07 (Fifty-Five Million, Four Hundred and Eighty-Nine Thousand, Nine Hundred and Forty-Four Naira, Seven Kobo) being wrong debit entries posted to the 3rd Defendant’s Account.
d. Unauthorized charges amounting to 441,515,978.00 (One Million, Five Hundred and Fifteen Thousand, Nine Hundred and Seventy- Eight Naira).
e. Interest at the rate of 25% per annum on the sum of N162,790,172.29 (One Hundred and Sixty Two Million, Seven Hundred and Ninety Thousand, One Hundred and Seventy Two Naira, Twenty Nine Kobo) from 2003 till judgment, being the prevailing CBN interest rate, and thereafter 10% of the compounded sum till final liquidation of the judgment sum.
f. General damages of N200,000,000.00 (Two Hundred Million Naira) only arising from the embarrassment and ridicule of the counter-claimant in the eyes of both Local and International Community particularly the European Union and other International Donor Agencies as a result of the shoddy and inefficient handling of her account by the Plaintiff.”

The Court in my view and humbly correctly found that though the Cross-Appellant is an artificial person as provided under the Protection of Public Officers Act, the Act would not apply in terms of the three (3) months limitation period therein prescribed for an action to become barred if not instituted within three (3) months because the nature of the 1st Cross-Respondent’s action is commercial, banking transactions between the parties. In consequence, the position of the Court in that regard will not be disturbed.

The case of the 1st Cross-Respondent was that it complied with the instruction of the Cross-Appellant as contained in Exhibit 4 with respect to the conversion of the Cross-Appellant’s money denominated in Euros to US Dollars and to Naira, depositing same in Hallmark Bank Plc account No. KI02053100, and that it was entitled to any claims thereto connected. The counter-claim on the other hand is generally on the interest and claims not connected to the issue on Exhibit 4. Therefore, from the two sets of claims by the Cross-Appellant and the 1st Cross-Respondent, one agrees with the Court that the counter-claim is not directly related to the main claim. The Court further found thus on page 505 of the Record:
“On the whole, I find the counter-claim/cross-action not proved by preponderance of evidence required by law.”

One is able to agree with the above position of the Court having carefully perused the record. The sole issue herein is consequently resolved against the Cross-Appellant.

In the result, the Cross-Appeal cannot be allowed, it fails and is hereby dismissed accordingly. The judgment of the Federal High Court, Abuja, delivered on September 24th, 2019 is hereby affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance the judgment delivered by my learned brother, Eifrieda O. Williams-Dawodu, JCA.

In the instant case, the relationship between the Appellant was governed strictly by Exhibit 4. It is apparent from the evidence on record that, the Appellant acted outside the ambit of Exhibit 4. The learned trial Judge was therefore right when it held that the Appellant required the unequivocal consent of the 3rd Respondent to effect the conversions before transferring the funds to Hallmark Bank.

It is for the above reasons and the other reasons stated in the lead Judgment that I agreed that the appeal has no merit, and that it be dismissed. I also agree that the cross-appeal lacks merit. It is hereby dismissed.

DANLAMI ZAMA SENCHI, J.C.A.: The lead judgment just delivered by my learned brother, ELFRIEDAO. WILLIAMS-DAWODU, JCA was read by me before now and I agree with the position of the lead judgment and I adopt same as mine that the main appeal lacks merit and it is dismissed by me as well.

Accordingly, the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/44/2005 delivered on 24/09/2019 by I. E EKWO, J is hereby affirmed.

CROSS-APPEAL
I have also read the lead judgment in this Cross-Appeal delivered by my learned brother, ELFRIEDA O. WILLIAMS-DAWODU, JCA and I agree with the finding and conclusion reached therein that there is no evidence to support the counter-claim, the subject of the Cross-Appeal. Thus, the Cross-Appeal lacks merit and it is hereby dismissed by me as well.

The decision of the learned trial Judge of the Federal High Court delivered on 24/09/2019 is hereby affirmed.

Appearances:

Mr. U. Idachaba, with him, Ms. V. Ogune
Mr. B. B. Lawal, with him, Ms. H. K. Salami For Appellant(s)

Mr. B. B. Lawal, with him, Ms. H. K. Salami for Appellant/1st Respondent

Mr. Ejike A. Orji, ACSC for 1st & 2nd Respondent

FMJ for 2nd & 3rd Respondent For Respondent(s)