GTB PLC v. IMANANAGHA (2022)

GTB PLC v. IMANANAGHA

(2022)LCN/16762(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, February 16, 2022

CA/PH/438/2020

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

GUARANTY TRUST BANK PLC APPELANT(S)

And

PROFESSOR KOBINA KEME-EBI IMANANAGHA RESPONDENT(S)

RATIO

THE ESSENCE OF AN APPEAL

The essence of an appeal is to have an opportunity to have one’s suit re-examined before a higher or independent panel with a view to convincing such a panel in one’s favour. See Ogunbiyi v. Ishola [1996] 6 NWLR (Pt. 452) 12 at 23. An appellant is expected to show on the occasion of his appeal being heard that based on settled principles, the trial Court failed to observe the principles of law as may be found in decided cases and statutes. See University of Calabar v. Esiaga [1997] 4 NWLR (Pt. 502) 719 at 749.
There is a presumption that the findings of a trial Court are right. This is because the trial Court has the advantage of seeing the witness, an advantage which the appellate Court does not have, as it is limited to the printed evidence. Therefore, the duty to displace the presumption falls on the party challenging them. See Onu v. Idu [2006] 12 NWLR (Pt. 995) 657 at 672-673. PER ADEGBEHINGBE, J.C.A.

WHETHER OR NOT ISSUES NOT APPEALED AGAINST IS SAID TO BE BINDING ON PARTIES

WHETHER OR NOT THE DOCTRINE OF ESTOPPEL CAN BE EXTENDED TO COVER UP OR CONDONE AN ILLEGAL ACT

The doctrine of estoppel cannot be extended to cover up or condone an illegal, unconstitutional or criminal conduct and it will be against public policy to attempt to apply estoppel to shut up a complaint over such conduct. The doctrine of estoppel cannot work in favour of parties who mutually give their consent or agree to an illegality. Thus, estoppel will not be allowed to preclude the party against whom it is sought from asserting and bringing to the notice of the Court the illegality of such actions and/or instruments which are sought to be validated by the acceptance of the estoppel pleaded. See Onamade v. African Continental Bank [1997] 1 NWLR (Pt. 480) 123; Union Bank of Nigeria Plc v. Okoror [2002] 10 NWLR (Pt. 774) 1; Ugwu v. Ararume [2007] 12 NWLR (Pt. 1048) 367; and First Amalgamated Building Society Ltd. [2008] 14 NWLR (Pt. 1107) 375. The doctrine of estoppel by conduct cannot, thus, be invoked to shut out the complaints of a party against the legality and the constitutionality of the actions of another. Reliance on the doctrine in such a circumstance will be wrongful. See Ntung v. Longkwang [2021] 8 NWLR (Pt. 1779) 431 at 500. PER ADEGBEHINGBE, J.C.A.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): At the beginning, there was a relationship between the parties to this appeal. The Appellant is a licenced bank. The Respondent is a Professor of medicine. The Professor opened an account with the defendant at Appellant’s branch, in Yenagoa, Bayelsa State. Upon the opening of the account, the account was baptized with serial number 0161506639. The Professor had some money to invest. Over time, the parties were in the business of the Professor investing funds for interest or profit with the bank.
At a point, the Professor suspected that there was some monkey business in his business of invested funds with the bank. He complained. His complaint was ignored and unresolved. He was seeking the sum of N82 million naira, which he claimed, evaporated from his account. Mysteriously, after considerable delay, through unidentified sources, it seemed portions of the missing funds were being repaid into the account. In the view of the claimant/investor, he had been wronged. When he became sufficiently frustrated, the Professor (as claimant) came to Court and filed a suit – YHC/197/2018 – against the bank, as defendant. That defendant at the lower Court is the Appellant in this appeal.
The defendant admitted to have been in a Banker/Customer relationship with the Professor, the customer. The defendant claimed to have moved the sum of N82 million, being sought by the Professor, from the account into a third party designated account within the same bank, upon the written instruction of the Professor, the customer. The defendant disclaimed any liability or any wrong doing. When the lower Court gave its decision, the defendant was worsted. That decision made the defendant, the Appellant in this appeal. The Professor/investor/claimant is the Respondent.
The decision of the lower Court, which drew in this Court, is a judgment dated 27/02/2020, delivered by Justice N. Aganaba of the High Court of Bayelsa State sitting in Yenagoa. The judgment was predicated on a suit filed by the Respondent against the Appellant. The suit, which led to the judgment was filed on 02/10/2018, vide a writ of summons, accompanied by a statement of claim. The judgment of the lower Court is alive at pages 1062-1102 of the record, as indicated on the first page of the appellants’ brief of argument.
It is advisable to note that the date of the judgment is actually 27/02/2020, instead of 04/03/2020, cited in the notice of appeal. The case of Jeric v. Union Bank Nig. Plc [2000] 15 NWLR (Pt. 691) 447 at 458 instructs that such inconsistency should be treated as irregularity. See also CBN v. Eze [2021] LPELR – 55554(CA), per Olabode Abimbola Adegbehingbe, J.C.A. This is more imperative because the Respondent’s Counsel, at page 1 of the Respondent’s brief of argument, aptly, indicated that the judgment, on appeal, is the one dated 27/02/2020. Parties have not made an issue out of the point.
In his suit, the Respondent prayed the lower Court to enter judgment against the Appellant, as shown in paragraph 32 of the statement of claim, in the following terms:
“1. A declaration that the conduct and acts of the Defendant in tampering with the account of the claimant without his authorization or consent, or approval amounts to a breach of the fiduciary relationship between her and the Claimant.
2. A declaration that the Defendant was negligent in managing claimant’s account, and her negligence resulted in the losses incurred as well as the hardship suffered by the Claimant, hence, Claimant is entitled to damages.
3. An order of this Court directing the Defendant to pay the sum of N50,000,000.00 (Fifty Million Naira) as general damages.
4. An order of this Court directing the Defendant to pay the sum of N2,200,000, 000.00 (two billion, two hundred million naira) as exemplary damages for its reprehensible conduct in handling the finances of the Claimant.
5. An order of this Court directing the Defendant to pay the sum of N9,645, 000.00 (Nine million, six hundred and forty-five thousand naira only) as special damages for making the claimant to incur avoidable losses.
6. N20,000,000.00 (Twenty Million Naira) being cost of litigation.”
At the trial, parties called witnesses (one each) and tendered exhibits. Learned Counsel for the parties made submissions to the Court. The lower Court delivered its judgment, which caused discomfort for the Appellant, who filed this appeal. The judgment, dated 27/02/2020, nettling the Appellant, spoke, in conclusion, at pages 1095 and 1101 of the record, thus:
“Having settled that tampering of the Claimant’s account and the failure to liquidate his investment with the Defendant occurred due to the lack of care and skills by the Defendant, I hereby declare as follows;
1. That the conduct and acts of the Defendant in tampering with the account of the Claimant without his authorization or consent, or approval amounts to a breach of the fiduciary relationship between her and the Claimant.
2. That the Defendant was negligent in managing Claimant’s account, and her negligence resulted in the losses incurred as well as the hardship suffered by the Claimant, hence Claimant is entitled to damages.
…
It is therefore based on the foregoing that I hereby order as follows;
3. The Defendant pays the sum of N15,000,000 as general damages.
4. That the Defendant pays the sum of N10,000,000 as exemplary damages as a result of its reprehensible conduct in handling the finances of the Claimant.
Cost of Five Hundred Thousand Naira (N500,000.00) is also hereby awarded the Claimant against the Defendant as cost of this proceedings.” (Bold font for emphasis).
In the amended notice of appeal, seven grounds of appeal were raised. Deriving from the grounds of appeal, Appellant’s Counsel, at page 4 of the Appellant’s brief of argument, stated the five issues, which, in his view, best capture a pathway to resolving this appeal. These are:
“1. Whether the lower Court was right when it held that the Respondent proved his entitlement to the discretionary reliefs sought in Suit No. YHC/195/2018, notwithstanding the apparent failure of the Respondent to produce credible evidence in support of the allegations contained in his pleadings and the reliefs sought therein. (Grounds 1, 2 and 4).
2. Whether the lower Court was right in holding the Appellant negligent to the Respondent, notwithstanding the failure of the Respondent to call Miss. Mercy Adighigbe, a vital and material witness. (Ground 3).
3. Whether, in view of Exhibit M, the lower Court was right when it held that the Appellant was negligent in handling the Respondent’s funds with it. (Ground 5).
4. Whether the lower Court’s reliance on speculations and conjectures in arriving at its decision that, the Appellant breached the duty of care which it owed the Respondent is right in law.
5. Whether the lower Court was right when it awarded the sums of N15,000,000 and N10,000,000 as general and exemplary damages and N500,000 as cost of litigation against the Appellant. notwithstanding the failure of the Respondent to prove the allegations of breach of fiduciary relationship and negligence against the Appellant. (Ground 7).”
The Respondent’s Counsel, at page 6 of the Respondent’s brief of argument, confirmed his agreement with and adoption of the issues distilled by the Appellant’s counsel.

HEARING THE APPEAL
At the hearing of this appeal, on 13/01/2022, Kunle Gbolahan Esq., learned Counsel for the Appellant hinted that the Appellant relies on the amended notice of appeal, filed on 14/01/2021, but deemed properly filed on 13/01/2022. Learned Counsel adopted both the Appellant’s brief of argument and reply brief of argument, respectively, filed on 22/06/2021 and 05/01/2022, but both deemed properly filed and served on 13/01/2022. Kunle Gbolahan Esq. settled both processes. He urged this Court to allow the appeal and set aside the judgment of the lower Court.
Donald Atogbo Esq. adopted the Respondent’s brief of argument, filed on 16/12/2021, but deemed properly filed and served on 13/01/2022, which he settled. Learned Counsel requested the Court to dismiss the appeal and uphold the decision of the lower Court.

APPELLANT’S ARGUMENT OF THE APPEAL
On the first issue, Appellant’s Counsel submitted that the onus to prove the facts laid on the Respondent who requested for declaratory orders. He relied on Section 133(1) of the Evidence Act, 2011 and decisions in Reptico S. A. Geneva v. Afribank (Nig.) Plc [2013] 14 NWLR (Pt. 1373) 172 at 207 and Eke v. Okwaranyia [2001] 12 NWLR (Pt. 726) 181 at 203 etc.
He submitted that there is nothing in the entire evidence which proved allegations of manipulation, super-imposition of his signature. He submitted that the Respondent’s allegations are positive assertions, which can only be proved by direct evidence, as the Appellant pleaded that it did not transfer Respondent’s funds without the Respondent’s instructions contained in exhibit M, which contains Respondent’s signature, in the ordinary course of Appellant’s business. He insisted that the Respondent ought to have tendered cogent evidence to prove that the transfer was without his authorization, which was lacking at the trial. He submitted that the lower Court made “excuses for the Respondent and went outside the evidence before it just to make sure it grants the Respondent’s claims.”, as the decision of the lower Court is at variance with the evidence before it. Relying on the case of Akpan v. Ilombu [1998] 8 NWLR (Pt. 561) 283 at 290, learned Counsel made the point that it is not the duty of Court to bridge yawning gap in the case put forward by any party.
Allegations of fraud, forgery and manipulations of signatures are criminal offences under Nigerian law, which require proof beyond reasonable doubt, which is a fact acknowledged by the lower Court in its judgment.
Thus, the Respondent has the duty to specifically plead and particularize the alleged fraud and prove same beyond reasonable doubt. He cited, in aid of his proposition, the cases of Onojighofia v. Okotie [2018] LPELR 45046 (CA) and Ukeje v. Ukeje [2014] 11 NWLR (Pt. 1418) 384 at 402 etc. Having failed to so plead and prove, learned Counsel submitted that the lower Court was wrong to have entered judgment in favour of the Respondent on the first and second reliefs sought.
On the second issue, Appellant’s Counsel observed that specific allegations were made against Miss Mercy Adighigbe, a staff of the Appellant and that the Respondent’s case, at the trial, centred around conversations Appellant had with the named person, who was described as vital witness. He insisted that failure to call Miss Mercy Adighigbe is fatal to the case of the Respondent, which should attract the presumption reserved in Section 167(d) of the Evidence Act, 2011.

On the third issue, learned Counsel referenced the allegation by the Respondent that his funds in the sum of N82,000,000.00 (Eighty two million naira) was transferred to third parties without his authorization or consent. In support of the defence, Appellant tendered exhibit M, which contains Respondent’s instruction to transfer the sum of N80,000,000.00 from his account to one Daniel Baratuapre. The defence witness explained, under cross-examination, that the instrument for the transfer of the sum of N2 million balance was lost during police investigation into the matter, which was not controverted at the trial.
Learned Counsel observed that the Respondent did not deny his signature on exhibit M or lead evidence to controvert exhibit M. It is the view of learned Counsel that, on the balance of probability, the Respondent signed exhibit M, as evidence in that regard was not controverted in any way whatsoever. The Court had a duty to accept uncontroverted evidence, which is not incredible. The Court was urged to arrive at the irresistible conclusion that the Appellant placed sufficient evidence before the lower Court to prove that the Respondent instructed it to transfer his funds to Daniel Baratuapre, the beneficiary named in exhibit M.
On the fourth issue, learned Counsel complained that the lower Court acted on speculations or conjectures in arriving at its decision. Paragraph 19 of the Respondent’s reply to the statement of defence was spotlighted by Appellant’s Counsel, to make the point that the Respondent’s Counsel, fruitlessly, attempted to elicit evidence at the trial from Appellant’s witness to prove that Appellant’s staff members were sacked because of the alleged transfer of funds from Respondent’s account. Appellant’s witness stood her ground that the suggestion was not true.
Despite the outcome of the cross-examination of Appellant’s witness, at the trial, the lower Court concluded that incidents of sacking took place at about the time of the transfer of Respondent’s funds as an unlikely co-incidence. He complained that the lower Court did not have jurisdiction to speculate or rely on conjectures, in the absence of evidence.
On the fifth issue, it was argued that, as the Respondent failed to prove his case, the lower Court was in error when it granted prayers regarding award of damages. Thus, it was submitted that the awards made were compensation to the Respondent for not proving his case. He cited the cases of S. P. D. C. v. Tiebo VII [2005] 9 NWLR (Pt. 931) 439 at 470 and Anazodo v. P. I. T. (Nig.) (2008) 6 NWLR (Pt. 1084) 529 at 546.
It was further submitted that the lower Court was in error when it granted exemplary damages to the Respondent, which was not specifically pleaded and proved. He relied on the case of First Bank of Nig. Plc v. Ibennah [1996] 5 NWLR (Pt. 451) 725 at 744 on the proposition.
In sum, learned Counsel for the Appellant requested the Court to allow the appeal and set aside the decision of the lower Court.

RESPONDENT’S ARGUMENT OF THE APPEAL
In tackling the first issue, Respondent’s Counsel submitted that the Respondent led credible oral and documentary evidence to prove his case before the lower Court and thus, discharged the onus placed on him by statutes and decided authorities.
He also posited that the evidence led by the Respondent was not contradicted and same could not be disproved by the Appellant. It was submitted that the Appellant predicated its defence, but failed to prove his case on exhibit M.
On the face of exhibit M, in the view of learned Counsel, Appellant failed to disprove the claim of the Respondent, but supported it. Exhibit M, which is a local transfer instrument, could not have been used to liquidate Respondent’s investment, in the view of learned Counsel.
In the opinion of learned Counsel, from evidence elicited from DW 1, under cross-examination, it is obvious that exhibit M did not carry the Respondent’s account number and did not justify the transfer of the sum of N2 million from Respondent’s account.
Learned Counsel insisted that at no point did the Respondent instruct the Appellant to liquidate his investment and transfer his money to a 3rd party, using banking instruments, except by written instruction, bearing account number 0161506639, while exhibit M did not follow that natural course of events.
The attention of the Court was drawn to the provision of Section 167(c) of the Evidence Act, 2011, on presumption of fact. He explained that the Respondent was able to disprove the suggestion that he issued exhibit M, with evidence, at the trial.

Issues 2, 3 and 4 were argued together by learned Counsel. It is the view of learned Counsel that the Appellant owed a duty of care and fiduciary duty to the Respondent, based on their banker-customer relationship. Page 195 of the book Banking: Theory, Regulation, Law and Practice, published in 2016 by Au Courant Publishers, Lagos, authored by Dr. Oladapo Olanipekun was referenced, as well as decisions in Linton Industrial Trading (Nigeria) Limited v. CBN & Anor. [2014] 1 BFLF 221 at 233 and S. T. B. Ltd. v. Anumu [2008] 14 NWLR (Pt. 1106) 154-155, to justify the submission. He insisted that evidence showed that the Appellant failed to protect Respondent’s funds, as the relationship could be categorized as that of principal and agent.
The view of learned Counsel, on Miss Mercy Adighigbe, is that she is the servant of a disclosed principal – the Appellant – as Appellant’s employee. The Respondent related with her in that capacity and the Appellant is bound by and liable for the official conduct of the named person. In that regard, if she is a vital witness, it is the Appellant who should have called her to testify at the trial to disprove Respondent’s case.
It was submitted that exhibit M does not support the case of the Appellant, going by the several other documents tendered by the Respondent at the trial, which showed the pattern of dealing with the Appellant by the Respondent, especially, because its original copy was not tendered in evidence. On its face, exhibit M did not contain any instruction to liquidate Respondent’s investment in the sum of N82 million, though the exhibit bears the sum of N80 million on its face.

The Respondent submitted that the lower Court did not rely on speculations and conjectures in its judgment. The evidence of DW 1 admitted material facts, under cross-examination. Sections 20 and 21(1) of the Evidence Act, 2011, the cases of Insurance Brokers of Nigeria v. ATM Co. Ltd. [1996] 8 NWLR (Pt. 466) 316 at 329 and Kenlink Holdings Ltd. v. R. E. Invest. Ltd. [1997] 11 NWLR (Pt. 529) 438 at 447 were cited on the law and effect of admission. The trial Court was therefore right when it gave judgment, as it did, to the effect that the Appellant breached the fiduciary relationship it had with the Respondent by unlawfully tampering with the funds in his account.
On contradictions in the evidence produced by the Appellant, learned Counsel pointed in the direction of DW 1 and submitted that the evidence from the Appellant was riddled with contradictions and lies, which made the evidence unreliable. Unreliable evidence cannot be relied upon by a Court, as decided in Igbojimadu v. Ibeabuchi [1998] 1 NWLR (Pt. 533) 179 at 210 and Apena v. Aileru [2014] NWLR (Pt. 1426) 111 at 127.

On the fifth issue for determination, reference was made to decisions in Lagos City Council Caretaker Committee (LCCCC) & Anor. v. Benjamin Unachukwu & Anor. [1978] 3 SC 137 at 138-139; Thomas Kerewi v. Bisiriyu Odugbesan [1965] 1 All NLR 95; and, Ohadugha v. Garba [2000] 14 NWLR (Pt. 687) 226 at 242, to aid the submission that award of general damages is based on the principle of restituo in integrum.
As the conduct of the Appellant, which learned Counsel described as reprehensible, imposed hardship on the Respondent, the latter would be entitled to damages. Damages flow from the success of a party’s case. On the strength of the decision in GFKI (Nigeria) Ltd. v. NITEL Plc [2009] 15 NWLR (Pt. 1164) 344 at 377, learned Counsel submitted that the lower Court was right in awarding damages in its judgment, which the Respondent pleaded and proved.
He urged the Court to dismiss the appeal and affirm the judgment of the lower Court.

APPELLANT’S REPLY BRIEF OF ARGUMENT
Appellant’s reply brief of argument was a rehash of existing arguments in the main brief of argument. Unfortunately, Appellant’s Counsel, Kunle Gbolahan Esq. who signed it, displayed consciousness of the fact that he was repeating arguments.
Under response to the first issue, learned Counsel, honestly, stated in paragraph 2.02 that his argument was “At the risk of repetition …”. Under response to the third issue, learned Counsel confessed that “We, therefore, reiterate our argument that, the lower Court ought to have accepted and acted on Exhibit M.”.
The only seemingly new point made is the complaint that the Respondent failed to demonstrate, at the trial, how his signature was scanned and super-imposed on banking instruments and the alleged confession of Miss Mercy Adighigbe. This is shown at paragraph 2.05 of the reply brief of argument. In fact, the point is not even a point of law. In all, Appellant’s Counsel requested the Court to allow the appeal.

DETERMINING THE APPEAL
The essence of an appeal is to have an opportunity to have one’s suit re-examined before a higher or independent panel with a view to convincing such a panel in one’s favour. See Ogunbiyi v. Ishola [1996] 6 NWLR (Pt. 452) 12 at 23. An appellant is expected to show on the occasion of his appeal being heard that based on settled principles, the trial Court failed to observe the principles of law as may be found in decided cases and statutes. See University of Calabar v. Esiaga [1997] 4 NWLR (Pt. 502) 719 at 749.
There is a presumption that the findings of a trial Court are right. This is because the trial Court has the advantage of seeing the witness, an advantage which the appellate Court does not have, as it is limited to the printed evidence. Therefore, the duty to displace the presumption falls on the party challenging them. See Onu v. Idu [2006] 12 NWLR (Pt. 995) 657 at 672-673.

In determining the appeal, the point must be loudly made that the Appellants failed to raise grounds of appeal to challenge many of the findings of fact made by the lower Court. That abstinence implies that the Appellant agreed with those findings of fact made by the lower Court. It goes, without saying, that where an appellant fails to appeal on a finding of fact made by a Court, he would not be allowed to submit thereon. See the case of Atanda v. Iliasu [2013] 6 NWLR (Pt. 1351) 529 at 558; Ihim v. Maduagwu [2021] 5 NWLR (Pt. 1770) 584 at 615; and Saleh v. Abah [2017] 12 NWLR (Pt. 1578) 100 at 133-134. In the case of Dasuki v. FRN [2018] 10 NWLR (Pt. 1627) 320, the Court stated that specific finding of fact neither challenged nor rebutted is correct. That is, an appellant who does not appeal a specific finding of fact is deemed to have accepted and conceded it. This is because facts not disputed are always taken as established.
In the case of UBA Plc v. B. T. L. Industrial Ltd. 2006) 19 NWLR (Pt. 1013) 61, the Supreme Court stated that where there is no appeal against a finding of fact, an appellate Court will not disturb the finding of fact.
It is, equally, striking that the Appellant did not file any omnibus ground of appeal. See the case of Opuiyo v. Omoniwari [2007] 16 NWLR (Pt. 1060) 415 at 431. In the case of Akinlagun v. Oshoboja [2006] 12 NWLR (Pt. 993) 60 at 82, the Court stated:
An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22. It therefore follows that for a complaint on a finding of fact on a specific issue, substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground.
In view of the firm and unyielding position of the law, highlighted above, there are, obviously, inherent limitations on the range of the argument permitted to the Appellants in this appeal. It is in that light that the argument of the parties in this appeal will be examined and considered.
Resolution of the first, second, third and fourth issues together
1. Whether the lower Court was right when it held that the Respondent proved his entitlement to the discretionary reliefs sought in Suit No. YHC/195/2018 notwithstanding the apparent failure of the Respondent to produce credible evidence in support of the allegations contained in his pleadings and the reliefs sought therein. (Grounds 1, 2 and 4).
2. Whether the lower Court was right in holding the Appellant negligent to the Respondent, notwithstanding the failure of the Respondent to call Miss. Mercy Adighigbe, a vital and material witness. (Ground 3).
3. Whether, in view of Exhibit M, the lower Court was right when it held that the Appellant was negligent in handling the Respondent’s funds with it. (Ground 5).
4. Whether the lower Court’s reliance on speculations and conjectures in arriving at its decision that, the Appellant breached the duty of care which it owed the Respondent is right in law?
In view of the manner the Appellant and the Respondent went about the argument of this appeal and in order to avoid repetition, which characterised part of their argument, it is advisable that the four issues highlighted above should be determined together.

In resolving the four issues, the natural starting point is to recall that the simple case, which the Respondent took before the lower Court, is that his account, kept with and by the Appellant, was maltreated by the Appellant, without his consent. In paragraph 3, of the statement on oath, dated 02/10/2018, adopted by the Respondent at the trial, he testified, as follows:
“3. In December, 2014, I opened an account with the Defendant bank in its Yenagoa branch with account number 0161506639, and that from the onset I began to fix deposit money in the said account for an agreed period of 30 days. A schedule of the investments is hereby pleaded and shall be relied upon”
Exhibit L is bundle of documents, tendered as the statement of the account of the Respondent. Exhibit K is a schedule showing the milestones of transactions on the Respondent’s account, prepared by the Respondent, who tendered it. The Respondent’s complaint is that between the months of September, 2017-January, 2018, the sum of N82 million was removed from his account without his consent and authority. The Respondent also complained that unknown persons were paying money into his account, about which he complained to the Appellant, without respite. The Respondent pleaded and testified that he was introduced to a certain Miss Mercy Adighigbe, as his Account Officer, by Mr. Hillary, a senior staff of the Appellant bank. In paragraphs 5-6 of the additional statement on oath, dated 04/03/2019, adopted at the trial by the Respondent, he further testified as follows:
“5. When I opened the account with the Defendant, I was met by one Mr. Hillary and Miss Adighigbe who introduced themselves as staff of the Defendant and the team to manage my account. The said Miss Mercy Adighigbe was particularly mentioned and introduced by Mr. Hillary as the one who would be interfacing with me and would be constantly relating with me with respect to my account. Consequent upon that, my letters of instruction were handed over to the said Miss Mercy Adighigbe and the Defendant acted on the said letters of instruction between 2014 and 2018.
6. Since the said Mercy Adighigbe, who is a staff of the Defendant was introduced to me as my account officer, my account was officially assigned to her and her team members to manage, which it possible for her to have access to my account details and thus created an obligation on the Defendant to protect my account.”
It was with Miss Mercy Adighigbe that the Respondent related, while transacting his banking business with the Appellant. He gave her instructions in writing, which were respected and complied with, until the Respondent discovered that the sum of N82 million had been taken out of his account with the Appellant. He complained to his Account Officer who gave the Respondent a little bit of run around before finally admitting that Respondent’s funds had been spirited out of his account and lent to persons unknown to the Respondent. When it became obvious that there would be a challenge in retrieving his funds, Respondents went on a letter-writing expedition to alert the Appellant to act.

On 11/12/2019, the trial Court admitted some documents as exhibits through the Respondent who tendered them. In paragraphs 18 and 21 of the statement on oath of DW 1, Appellant’s witness, admitted that the Appellant received some of the documents, in the words following:
18. I know that the averments contained in paragraphs 21 and 22 of the statement of claim are true only to the extent that the Defendant received the Claimant’s letters dated 15th February, 2018 and 13th April, 2018. I know that in view of the facts contained in paragraph 17 above, the Claimant’s letters dated 15th February, 2018 and 13th April, 2018 were written in utmost bad faith.
…
21. I know that the allegations of fact contained in paragraphs 26, 27 and 28 of the statement of claim are false and intended to mislead this Honourable Court. I do know as fact that, the content of the Claimant’s letter dated 25th May, 2018 is baseless, misconceived, written mala fide and in anticipation of this suit. I know that the Defendant is not aware of the details of the transaction between the Claimant and Daniel Baratuapre or any other person which warranted the payment of monies into the Claimant’s account. I also know that the Defendant did not give details of the Claimant’s account details to any third party or at all. I, therefore, know that the Defendant is not in breach of any fiduciary relationship or any other relationship between it and the Claimant. Finally, I know that the Claimant did not return the funds paid into his account notwithstanding his letters of 15th February, 2018, 13th April, 2018 and 25th May, 2018. I know that the Defendant shall at trial, rely on the principle of waiver to contend that, the Claimant is estopped from raising issues relating to those payments.
It is instructive, at this point, that DW 1 did not explain what she meant, when she testified that the letters received from the Respondent were written in bad faith, which made her evidence incomplete and worthless.
Apart from that, DW 1 mentioned the fact that the claimant is estopped from raising issues relating to unknown sources making payment into his account with the Appellant.

Going forward, in exhibit E, dated 09/01/2018, the Respondent requested the Appellant to liquidate his fixed deposit investment with the Appellant and to transfer the sum of N75 million from account no. 0161506639 in the Appellant, to another of his accounts in Sun Trust Bank Limited, Port Harcourt Branch, with account no. 0001040916. The Respondent testified that the Appellant did not respond to his letter or act, as requested, by the Respondent.
Exhibit G (stamped ‘received’ on 15/02/2018) is a letter from the Respondent to the Manager of the Appellant, dated 15/02/2018 and titled “The Illegal (Fraudulent) Investment of My Funds, Denying Me Access to My Money for Nearly Two Months: My Demands”, in which the Respondent stated, in part, as follows:
“As the Branch Manager of GTBank in Yenagoa you are aware of what my account officers did with my funds in GTB. We have exchanged a couple of text messages on the subject matter.
I hereby summarize what we know at this point in time:
1. …
2. On January 4th, 2018, my account officer, Miss Mercy Adighigbe, was instructed to do the usual 30 days fix deposit investment of my funds; this time with the GTB approved 16% interest.
3. On January 9th 2018, I emailed to my account officer Miss Mercy Adighigbe a new instruction for the full liquidation of my investment and immediate transfer of the sum of seventy five million naira to my personal account with SUNTRUST BANK NIGERIA LTD. GTB nearly two months after the issuance of this instruction, is yet to effect it, and for several weeks did not offer any explanation.
4. On January 12th, 2018 left with no other option, I reported the matter to the GTB Zonal Manager, Mr. Okey Nwankwo, who immediately launched investigation to establish what exactly happened to my funds and why my account officers were denying me access to my money. His investigations has revealed the following facts:
I. Despite my January 4th, 2018 instruction to fix deposit my funds for another 30 days, my account officers did not do that, rather without my CONSENT, without my knowledge, illegally invested them in the most risky manner without any signed agreement at the GTB level, my account officers pulled out eighty million Naira out of my account and loaned them to a politician for 90 days. (With April 2018 maturity date).
That was why they could not produce my funds on demand.
Miss Mercy Adighigbe confessed that the money was successfully taken out of my account; she fill a form and used a scanned copy of my signature. (With such behaviour nobody’s money is safe at GTB).
…
IV. Consequently, I hereby demand as follows:
i. Latest 12 noon, Tuesday, February 20th, 2018, all funds illegally taken from my account should be returned UNFAILINGLY to my account. I must receive alert to that effect.
ii. When returning the funds back to my account compound interest (16% and the additional 20 million naira) must also be paid in.
iii. Failure to comply with the above demand (i and ii), at the expiration of February 20th, 2018 deadline, my lawyers will have no other option, but to write to:
1. GTB Headquarters;
2. EFCC …”
In exhibit H (stamped ‘received’ on 13/04/2018), a letter from the Respondent, addressed to the Appellant’s Manager, dated 13/04/2018, titled “The Illegal Fraudulent Unauthorised and Criminal Act of Investing My Funds Thereby Denying Me Full Access to All My Funds Causing Me Excruciating Pain and Stress For Several Months: My Demands” the Respondent wrote, inter alia, as follows:
“In this letter I wish to express my deepest frustration caused by the total indifference being exhibits by GTBank, doing practically NOTHING to address my complaints of the criminal break-in into my account, illegally pulling out of eighty (80) million naira of my money, and “investing them in an unauthorised and most risky manner, all by GTBank officials assigned to me by the Bank as my account officers.
Two months after the official report, GTBank is yet to officially reply my letter, and has remained silent.
I hereby wish to call your attention to the following disturbing developments/observations:
1. For several months now GTBank has denied me the full access and use of my funds by failing to recover and return to my account the stolen funds. So far only forty-seven million naira has been returned, (30 million on February 2nd, 2018, and 17 million on February 19th, 2018) leaving a balance of thirty three million naira outstanding).
2. Months after I lodged this extremely serious complaint of a criminal break-in into my account by my GTB account officers, and totally unauthorized so-called investment of my funds, GTBank is yet to officially respond to the letter, and officially address the matter. The security of customer’s funds in the bank is at stake here; and yet the bank is apparently unconcerned. This deployable indifference being exhibited by GTBank has totally exhausted my patience in this matter.
3. I have the sickening believe that he fraudulent/criminal use of my account and money by the GTB account officers dated back to October 4, 2017, (possibly for years) not only from January 4th, 2018 earlier thought. Only them can say what they benefitted from the criminal act.
4. GTBank is to be blamed, for not securing my account. It must take full responsibility. My business is with GTB, not the account officers they assigned to customers’ accounts; and I have no business with whoever GTB or its officials loan my money to; or whether such a third party returns the money or not.
5. It is the responsibility of GTBank to secure my funds, and give me whenever I demand for them. I cannot be punished by GTBank for the criminal acts of persons it employed and assigned to customers’ accounts. Refusing to allow me access to my money, and making the recovery of the said from the third party is a condition for me to have my funds back is totally unacceptable to me, and it is unprofessional.
…”
In exhibit J (stamped ‘received’ on 25/05/2018), dated 25/05/2018, the Respondent wrote to the Managing Director of the Appellant (letter bears stamp of receipt by the Appellant) and complained about his travails in respect of his account and invested funds with the Appellant’s Yenagoa branch. In the letter, the Respondent stated, inter alia:
“I hereby bring to your notice that one MR BARATUAPRE DANIEL for the past 3-4 months has being paying different amounts of money directly into my account at GTBank, Yenagoa Branch, Bayelsa State, possibly returning the eighty two million naira that were taken out of my account, enabled by my GTB account officers, and loaned to a third party, all WITHOUT my consent, I do not know the third party to whom they gave almost all the money I had in my account (virtually emptied my account); I have never met that third party in my entire life, not even spoken with him.
So far this MR BARATUAPRE DANIEL has paid into my account thirty million naira (February 2nd, 2018); ten and seven million naira (February 19, 2018); nine and nine million naira) April 23rd, 2018), and seven million naira today, (May 24th 2018).
Initially I thought this man who was paying in the money in small amounts was a staff of the bank. It is today I came to full realization that instead of GTBank paying, it is the third party paying monies DIRECTLY into my account creating a TOTALLY FALSE impression that I did business with the third party, a man I don’t even know.
GTBank gave out my account details, which he now uses in paying the said amounts into my account.
I hereby STRONGLY PROTEST the continuing abuse of my account and fervently call on you, MR SEGUN AGBAJE, the Managing Director of GTBank at the GTBank Headquarters to Intervene immediately to stop this continuing abuse of my account. Please stop further direct payments of monies by the third party into my account; because I had no business contracted with him. My fixed deposit Investment was (and is) with GTBank, NOT directly with a third party. GTB did business with the third party; so it is GTB’s responsibility to recover both the principal (82 million naira) and the interest from the third party, and then pay the money into my account in one lump sum (not in pieces, spread over several months).
I demand that all further payments into my account must be done ONLY by GTBANK, NOT by the third party.
Your prompt action on this matter, that will stop further abuse of my account.”

It was based on the evidence presented to the Court by the Respondent, that the lower Court stated in its judgment, at pages 1087-1095 of the record of appeal, inter-alia, as follows:
“I have seen the said letter of instruction by the Claimant to the Defendant dated the 9th day of January as well as the letters of complaints which the Defendant apparently received but did nothing to salvage the situation. One need not be told, clearly the Defendant did not render any reasonable explanation if any, to the Claimant else this matter would not have gotten this far. …
The Defendant owes a duty of accountability, care and skill to the Claimant. Where there is a misplacement of funds or a complaint as regards monies in the custody of the Defendant, the Defendant owed it to the Claimant to provide answers and resolve same.
…
This attitude of the Defendant alone shows that the Defendant did not handle the account of the Claimant as a whole with utmost care and skill.
…
The said officer in question is a staff/agent/ employee of the Defendant assigned to the account of the Claimant. Aside the letter of liquidation in January, 2018 there were second and third letters of complaint and instruction marked exhibits J, K and L which were ignored though received.
…
On the face of Exhibit M the account number that effected the transfer of the said N82,000,000 from the Claimant’s account was not a Nuban account number which is different from the regular account number used by the Claimant in Exhibits B-L as the number usually used in all his transactions.
…
I find the evidence of DW 1 doubtful because I fail to understand how the Defendant would not have any copy of the instrument of the transfer of N2,000,000 but had the one for N80,000,000. Secondly at one point in her testimony DW 1 claimed the instrument of transfer is with the Police and then later turned around and said they misplaced it.
From the evidence of DW 1, she had no knowledge of what transpired with the Claimant’s account. She did not know when or if actually the Claimant was the one who submitted the instrument of transfer and who it was handed over to. She said there was nothing wrong with the transfer as same was made by the Claimant himself yet all the persons connected to the Claimant’s account after the N82,000,000 was transferred were all sacked. …
…
Given the circumstances of this case and the evidence of the Claimant, the Claimant has been able to prove a prima facie case of breach of fiduciary relationship against the Defendant and that same has resulted in the tampering of his account by the defendant’s official which has caused him harm hardship and loss. In the circumstances of this case, the contractual relationship between the Defendant and the Claimant imposes a duty of care on the Defendant as a Banking institution, the breach of which will impose on the bank a liability of negligence. Negligence by a bank consists of any act or omission in the course of performing services for a customer that is not in accordance with the standard of conduct reasonably expected of a banker in such circumstances.
…
Now, where there was no direct evidence of the liability of Defendant in connection with the tampering of the Claimant’s account, the facts as shown surrounding the way the Claimant’s funds were transferred and the flippant attitude of the Defendant in handling the suspected fraud carried out by its agents makes it more probable that there was some form of negligence on the part of the Defendant because of want of reasonable care under the circumstance.
…
It my humble view that the Claimant has discharged the legal burden placed on him to prove his case. The Defendant has not been able to successfully rebut the evidence of the Claimant that it or his agents were not careless with the operations of the Claimant’s account, and therefore not responsible for the event that caused hardship and losses for the Claimant resulting from the tampering of his account without his authorisation by officers of the Defendant.”

The quoted lengthy portion of the judgment above is to signpost the findings of the lower Court, which the Appellant did not challenge, directly and specifically, in this appeal. They remain inviolate. It is, thus, apparent that the Appellant is not right to claim that the lower Court did not have cogent evidence before it when it arrived at the point of granting the first and second prayers in the judgment on appeal. There was actually copious, cogent, admissible, unchallenged evidence before that Court and it justifiably found the Appellant liable, as the Respondent alleged.
If I may add, the letters, portions of which are quoted above, were strident complaints and calls for the Appellant to act, on information presented to the Appellant, in several correspondences. As the lower Court found, the Appellant was indifferent. The Appellant, apparently, considered it beneath it to deny or respond to very serious issues raised in the letters sent to the Appellant. A letter was even sent to the Managing Director of the Appellant, which the gentleman ignored. Nothing was denied by the Appellant. The allegations, evidence and facts contained in the letters are not different from the allegations, facts and evidence presented to the lower Court, by the Respondent.

In business and mercantile cases, the Courts have taken notice of the fact that in the ordinary course of business, if a businessman states in a letter that the latter has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did not so agree. Failure by a party to reply to a claim made against him by the other party amounts to acquiescence and this would be taken to be an admission. See Abajue v. Adikpa [1994] 1 NWLR (Pt. 322) 621 at 628. This Court is aware that it is not in every case that failure to give a reply to letters written on business matter and received by one of the parties to the proceedings would be taken as strong evidence that the party receiving the letter admitted what was asserted in its contents. The Courts are enjoined not to take this as an absolute rule rather they should consider each case on its own merit and examine the circumstance the letter was written and decide whether it is a case where an inference of admission could be safely drawn. However, it is generally understood that business letters must be replied. See Trade Bank Plc. v. Chami [2003] 13 NWLR (Pt. 836) 158 at 219-220; Emaphil Ltd. v. Odili [1987] 4 NWLR (Pt. 67) Wiedeman v. Walpole [1891] 2 QB 534; Gaskil v. Skene [1850] 14 QB 664.

In the case at hand, the muteness and numbness of the Appellant in the face of the serious issues of fact and complaints, severally, placed before it by its customer (the Respondent), without ANY formal response to documented complaints is implicit admission of or acquiescence with the facts the Appellant was confronted with.
The implication is that the Appellant, even before the suit was filed, had conceded that Miss Mercy Adighigbe was the Appellant’s staff and the account officer assigned to work with the Respondent in management of the Respondent’s account and deposit fixing businesses and transactions. The Appellant also implicitly conceded that the sum of N82 million was spirited out of the bank account of the Respondent without the consent of the Appellant. The Appellant did not have an answer to the fact put to it that Miss Mercy Adighigbe, Appellant’s staff, was the person who tampered with the Respondent’s account and transferred the sum of N82 million naira out of the account, without Respondent’s consent and authority.
At page 1051-1052 of the record of appeal, during the cross-examination of DW 1, a question was famously asked and she answered, fatally, in admission, as follows
“Q: the sum of eighty two (82) million naira in claimant’s account in your bank which was transferred to a third party without authorization was part of the fixed deposit
A: yes. It was fixed deposit that was later transferred.”
(Bold font for emphasis).
With the exchange above, which was admission of the Respondent’s case by the Appellant’s witness, there was no further evidence needed to prove that the sum of N82 million naira was transferred out of the Respondent’s account, without authorization from the Respondent. The only defence of the Appellant is that the Respondent gave written authority for the transfer to be made to a third party and it was in that regard that the sole defence witness tendered exhibit M.
In my view, exhibit M is a document without any evidential weight or value. The evidence of the Respondent, as CW 1, is recorded at pages 1033-1049 of the record of appeal. Throughout the testimony of the Respondent, including, during his cross-examination, there was no mention of exhibit M, because exhibit M is actually part of the case for the Appellant. It was not part of the case of the Respondent.

The Respondent flatly denied making any such document or giving any authority to transfer funds out of his account to a third party. In paragraph 29 of his statement on oath, dated 02/10/2018, the Respondent, as CW 1, testified:
29. That I did not at anytime sign any of the forms or banking instruments used by Miss Mercy Adighigbe, for the unauthorized release of my money to a 3rd party. The said Mercy Adighigbe acted at all time material on behalf of the Defendant, who is her employer and disclosed principal.

In paragraph 24 of the additional statement on oath, dated 04/03/2019, the Respondent (as CW 1) testified:
“24. I never authorized the transfer of the monies in my account to unknown 3rd parties. I hereby put the Defendant to the strictest proof of same.”
It was after the Respondent’s case had been closed and DW 1 called as defence witness, that exhibit M was tendered, through DW 1, Appellant’s sole witness. The evidence of DW 1, as recorded at page 1050 of the record of appeal is, as follows:
“In my witness statement on oath, I made reference to a document in paragraph 15 thereof.
This is the document.
It is a bank transfer document; this is a photocopy. The original got lost in transit when the matter was reported to the police.”
On the same page, in admitting the document in evidence, the lower Court stated thus:
“Local Currency Funds Transfer Instruction made in respect of the account of Professor Imananagba Kobina Keme-Ebi dated the 29th of September 2017 is hereby admitted as EXHIBIT ‘M’.”
What it means is that throughout the period the Respondent presented his case and testified as a witness, there was no suggestion of the existence or materiality of the document tendered, eventually, as exhibit M, to him. Exhibit M was not shown to the Respondent for his comment. Thus, the Respondent did not have anything to comment on, in regard of exhibit M, which is, indeed, a document procured and vended by the Appellant as part of its case.
The Respondent could not have demonstrated exhibit M, at the time he testified, because the document had not been tendered in evidence by the Appellant. Having not confronted the Respondent, as CW1, under cross-examination, with exhibit M, the lower Court could not have attached any evidential value to the document.
In the case of Oyetunji v. Akanni [1986] 5 NWLR (Pt. 42) 461, the Court took the position that before a particular previous statement made by a party can be used to discredit such a party in latter proceedings under Sections 222 and 232 of the Evidence Act, 2011, he must have been confronted with and cross examined as to such previous statements. Where there is no such cross-examination, such previous statements are irrelevant in the latter proceedings.

In the case of Edoho v. State [2003] 5 NWLR (Pt. 865) 17 at 50, the Court stated that a document cannot be admitted in evidence for the purpose of contradicting a witness by merely producing the document or making reference to it by the counsel without any cross-examination of the witness as to credit.
Apart from the above stated position of the law, exhibit M was not relevant to the case before the lower Court. The case before the lower Court concerned transactions in the Respondent’s account whose given account number is 0161506639. The account number of the transaction in exhibit M is, clearly, as shown on its face, in respect of account number.
In fact, at page 1053 of the record of proceedings, DW 1 testified thus:
“Q: look at exhibit L and tell this Court the account number of the claimant in your account
A: the Nuban account number is 0161506639
Q: look at exhibit M which you claimed was the instrument that was used to transfer, is that the account number of the Claimant
A: It is the regular account number
Q: Where is it in your statement on oath that he had the Nuban and Regular account number for the purpose of transfer?
A: It was not stated, but they are the same thing. One is Numan, one is Regular account number for the purpose of transfer.”
Reading though the statement of defence, it is striking that there is nowhere the number written on exhibit M is pleaded. What DW 1 testified about “regular account number” or “Nuban account number” is not pleaded anywhere in the statement of defence or pleadings of the respondent. The Appellant did not plead the particulars of exhibit M, regarding date, sum, purpose etc. Exhibit M, without doubt, is a document which goes to no issue because there is no pleading upon which it can rest. The corollary of all that is stated here is that without exhibit M, there is nothing to prove the allegation that the Respondent authorized transfer to a third party from his account, as claimed by the Appellant, who touted exhibit M.
DW 1 did even testify that the Respondent signed exhibit M. She did not testify about her having any relationship with exhibit M, to aid the understanding the purpose that the document was tendered. It is my view that there is nothing to attach to exhibit M, in terms of evidential weight or value. It is an irrelevant document without any pedigree in the pleadings of the parties.
The Appellant has complained that the Respondent should have called Miss Mercy Adighigbe as a witness and that failure to call her at the trial was fatal to the case of the Respondent. With due respect to the Appellant, the attempt to obfuscate clear issues is without any root. Miss Mercy Adighigbe was the Appellant’s staff at all times material to the case before the lower Court.
The Appellant momentarily forgot that it is not a natural person and that it has to speak and act through humans or natural persons, one of whom Miss Mercy Adighigbe was. Thus, for the purpose of the facts, incidents and evidence of the Respondent narrated involving Miss Mercy Adighigbe, it was the Appellant acting through her.
Thus, if the Respondent is expected to call Miss Mercy Adighigbe, apart from the fact that it is the Appellant who is going to be called as Respondent’s witness, in effect, there is nothing in the case of the Respondent she is going to testify about. She is not a vital witness in respect of the case of the Respondent. Rather, she is a vital witness in respect of the case of the Appellant, who failed to call her. If a presumption is to be drawn from failure to call Miss Mercy Adighigbe as a witness at the trial, under the provisions of Section 167(d) of the Evidence Act, 2011, such would, undoubtedly, be against the case of the Appellant, whose agent/servant/employee/alter ego, she was at all times material to the case before the lower Court. With the Respondent having, believably, stated his own side of the story, the onus fell on the Appellant to prove its defence. The best person to do so, in the circumstance, on behalf of the Appellant was the staff directly involved in the transactions.
In fact, in the case of Monoprix (Nig.) Ltd. v. Okenwa [1995] 3 NWLR (Pt. 383) 325 at 336, it was stated that where it is in issue whether a company entered into a particular transaction, it is necessary for the company to call, as witnesses, those persons who acted for it in crucial stages of the transaction. And for the purpose of this judgment, it is my view that where such a staff could not be called as a witness, it is reasonable to expect that an explanation would be offered to help the Court understand a party’s limitation.
The Appellant has suggested that the allegations made regarding super-imposition of Respondent’s signature on money transfer documents and manipulation of documents are allegations of crime, which should be proved beyond reasonable doubt. While it is true that the Respondent testified about the fact that Miss Mercy Adighigbe, Appellant’s erstwhile staff, confessed that she manipulated documents to carry out the unauthorized transfer of funds out of Respondent’s account, that piece of evidence, which the Appellant itself described as hearsay evidence, was merely the statement of someone who heard what was said to him and not evidence intended to prove the veracity of the statement. The Respondent, at paragraph 19 of his statement on oath, stated thus:
“19. Following the said discoveries, I confronted the said Miss Mercy Adighigbe, who admitted that she had scanned my signature and super imposed same on different banking instruments in a bid to tamper with my account and transfer my funds to unknown 3rd parties.”
Section 125 of the Evidence Act, 2011 provides that all facts, except the contents of documents, may be proved by oral evidence. Section 126(b) of the same Act provides that oral evidence shall, in all cases whatever, be direct, if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact. The evidence of the Respondent, quoted above, is definitely not hearsay evidence, because it is the evidence of the person who heard what he testified about – that Miss Mercy Adighigbe confessed to the Appellant that she acted improperly in tampering with the funds in Respondent’s account.
It was already established that there was money moved out of the account of the Respondent and the Appellant admitted that the sum of N82 million was so moved out of the account of the Respondent. It was, thus, the duty of the Appellant to prove how the sum was moved out of the account. This is more important because Section 136(2) of the Evidence Act, 2011 alerts us to the fact that in considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively. It was the appellant who had absolute control of all primary documents and records of transactions on the Respondent’s account. Yet, the Respondent, inexplicably showed up in Court with only one document, exhibit M, to defend a suit of the nature before the lower Court. DW 1 did not even taken a glance at any of the documents constituting exhibit L, the statement of account, which the lower Court eventually acted on.
The Appellant performed woefully, in regard of proving its defence, with the unfortunate tendering of a worthless document, as exhibit M, which further cemented proof of the desperation of the Appellant to cover up what was obvious maltreatment or rape of the Respondent’s account, under the watch of the Appellant, by the human agents of the unnatural Appellant.

If attention is paid to the words in the orders made by the lower Court and some of the paragraphs of the pleadings of the Respondent and his evidence, it will be observed that the predominant word used to describe what was done to the account of the Respondent is that the account was tampered with. In the case of Agbonifo v. Aiwereoba [1988] 11 NWLR (Pt. 70) 325 at 341, the Court gave us direction in understanding the use of the word ‘tampering’ in civil litigation, as follows:
“In my opinion, fraud was not in issue and the learned trial Judge did not find fraud. It is, however, true that a cellotape has been put over, inter alia, the name of the allottee in each document and the name of the allottee written after execution and cellotaping. To that extent the learned trial Judge who had the exhibits before him was perfectly entitled to infer from what is obvious on the face of it that they had been tampered with. This, to my mind, is not the same thing with a finding of fraud. To tamper with a document means to deal with it in any way which tends to change it from its original form. To tamper with it does not necessarily mean to forge the document.”
The case of the Respondent was not predicated on a claim based on allegation of crime. The argument of the Appellant in that regard is unhelpful to its appeal.
The Appellant has complained that the lower Court relied on conjectures and speculation when it arrived at the conclusion that Miss Mercy Adighigbe and other staff who were in the team, which managed the account of the Respondent, at all times material to the suit before the lower Court earned the sack from the Appellant at about the time of the unlawful transfer of funds from the account of the Respondent. While the issue raised in regard of the point is without any value to the success of the Appellant’s appeal, as it does not prove what had already occurred, which is that funds were moved from the Respondent’s account, without Respondent’s consent or authority at the time of the disengagement of the staff, it is my view that the Respondent specifically testified about the fact, in paragraph 19 of his statement on oath, dated 04/03/2019, thus:
19. Miss Mercy Adighigbe acted for the Defendant being a staff in its employment. The Defendant only terminated her employment and that of her team members when the news of the alleged fraud carried out on my account came to public notice.
The above statement was evidence before the lower Court and not conjecture. The Appellant could have (but did not) challenge the Respondent with the exact date of the sack of the staff by the Appellant. As if to justify the implication of the evidence above, in justification of the lower Court’s conclusion, the Appellant fasted in the area of calling the sacked personnel as witnesses in this case. The lower Court therefore, justifiably, wondered aloud about the uncanny co-incidence of their sacking, contemporaneously with the complaints of the Respondent, as a Court is allowed to wonder, aloud, in its judgment.
The case of Omni Products Nig. Ltd. v. U. B. N. Plc. [2021] 10 NWLR (Pt. 1783) 92 decided that where there is a banker/customer relationship between parties, it is a fiduciary relationship which imposes on the banker a duty to exercise reasonable care and skill in managing its customers’ funds and carrying out their instructions. Where the banker is in breach of his fiduciary duty, he would be liable in negligence. See also U. B. N. Plc v. Chimaeze (2014) 9 NWLR (Pt. 1411) 166 and Agbanelo v. Union Bank of Nig. Ltd. (2000) 7 NWLR (Pt. 666) 534.

Fiduciary or confidential relation is a very broad term embracing both technical fiduciary relation and the informal relation which exists wherever one man trusts in or relies upon another. It is a relation founded on trust or confidence reposed by one person in the integrity and fidelity of another. A fiduciary relationship arises whenever confidence is reposed on one side and domination and influence result on the other. Relation can be legal, social, domestic or merely personal. See First Bank Nig. Plc v Banjo [2015] 5 NWLR (Pt. 1452) 253 at 269. It is that duty that the Appellant was found by the lower Court to have breached leading to its being liable, as found.
To succeed in a claim for negligence, a claimant must establish:
a. the existence of a duty of care owed to him by the defendant;
b. failure to attain the standard of care prescribed by law; and
c. damages or injury suffered by the plaintiff as a result of the breach of the duty of care owed it by the defendant. See U. B. A. Plc. v. G. S. Industries (Nig.) Plc. [2011] 8 NWLR (Pt. 1250) 590 at 628-629.
In paragraphs 24-30 of the statement of claim and paragraphs 24-31 of the Respondent’s statement on oath, the Respondent pleaded and proved all the ingredients enumerated above and the lower Court appropriately made appropriate findings on the evidence before it. There is no merit in the first, second, third and fourth issues set before this court by the Appellant and all four are hereby resolved against the Appellant.
Resolution of the fifth issue
The poser embedded in the fifth issue is:
Whether the lower Court was right when it awarded the sums of N15,000,000 and N10,000,000 as general and exemplary damages and N500,000 as cost of litigation against the Appellant notwithstanding the failure of the Respondent to prove the allegations of breach of fiduciary relationship and negligence against the Appellant. (Ground 7).
An unconvoluted understanding of the question in the quotation above will advise that the Appellant does not question the value of the awards of general and exemplary damages in the judgment of the lower Court. Rather, the Appellant expects a determination of whether the lower Court ought to have made the awards, when, in the opinion of the Appellant, the Respondent failed to prove the case before it. This Court must not be seen to be getting involved in issues or matters it is not invited to meddle in.
In view of the fact that I have accounted for the soundness of the judgment of the lower Court under the first, second, third and fourth issues, it is therefore apposite for me to state that the lower Court was justified to made award of general damages, as it did, having found that the Respondent proved his case. This, in my view, is the appropriate closed question put to this Court by the Appellant, under the fifth issue.
The case of G. K. F. I. (Nig.) Ltd. v. NITEL Plc. [2009] 15 NWLR (Pt. 1164) 344 at 373, 377 gave succinct explanations on general, special and exemplary damages. Special damages are damages which must be specifically claimed and described in the pleadings if recovery of them will be ordered by the Court. Exemplary damages are damages on an increased scale over and above special or actual or ordinary damages, awarded in aggravated circumstances. They are punitive in nature. General damages are damages which the law presumes to flow naturally from the wrong complained of. They are damages implied by law and need not be proved specifically. While the law of evidence requires special and exemplary damages to be proved, general damages need not be proved. General damages are such as the law presume to be direct natural or probable consequence of the act complained of. On the other hand, special damages are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and, therefore, must be claimed specially and proved strictly. 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 disobedience of the law and the like.
The view of the lower Court is that the Respondent is entitled to exemplary and general damages, given the circumstances of the suit before it and what the Respondent proved at the trial. The lower Court actually described and found the conduct of the Appellant as reprehensible, in the end I agree with the conclusion, so expressed. However, there is no traceable path, in the pleading, specific legal reasoning and justification in the judgment of the lower Court, to identify how that Court arrived at the award of exemplary damages in favour of the Appellant, as it is expected to be found in every judgment of a Court of law.
While the award of general damages in favour of the Respondent cannot be faulted, same cannot be said of the award of exemplary damages. Thus, this Court hereby set aside the award of exemplary damages, in the fourth order made by the lower Court, which states:
“4. That the Defendant pays the sum of N10,000,000 as exemplary damages as a result of its reprehensible conduct in handling the finances of the Claimant.”
in favour of the Respondent, while the award of general damages is affirmed.
With respect to the other orders made by the lower Court, this Court should not and will not interfere. There is also nothing said or argued, in this appeal, that should warrant this Court tampering with the award of cost by the lower Court.

Conclusion
As it will be noticed above, the first two prayers sought by the Respondent from the lower Court, which were acceded to by that Court are declaratory in nature. The grant of a declaration by the Court is discretionary. See Temile v. Awani [2001] 12 NWLR (Pt. 728) 726 at 755 and the case of Ani v. Nna [1981] 1 SC 101, per Obaseki J.S.C.

Where a trial Court has exercised its discretion over a matter, an appellate Court should not interfere on the ground that it might have exercised the discretion differently, if it were in a position to do so.
However, and in appropriate cases, an appellate Court is entitled to interfere with the exercise of discretion of a trial Court if the appellate Court is satisfied that it is in the interest of justice to do. See Ceekay Traders Ltd. v. Egeibon [1994] 6 NWLR (Pt. 348) 23 at 41.

This appeal succeeds, in part.
The judgment of the lower Court is affirmed, except that the order for the Appellant to pay exemplary damages is reversed. The remainder of the appeal is dismissed. The Appellant shall pay cost in the sum of N250,000.00 (Two hundred and fifty thousand naira) to the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Adegbehingbe, J.C.A., and stress that the primary object of an award of damages is to compensate the claimant for the harm done to him; while the secondary object of damages in the form of exemplary damages, for example, is to punish the defendant for his conduct in inflicting harm on the claimant.

In that wise, exemplary damages, though anomalous in the civil scheme of litigation and breeds confusion between the civil and criminal functions of the legal system, may be awarded whenever the defendant’s conduct is proved to be sufficiently outrageous to merit punishment such as where it discloses elements of malice, fraud, cruelty, sadism, insolence or flagrant disregard to the law vide Eliochin (Nig.) Ltd. v Mbadiwe (1986) 1 NWLR (Pt.14) 47.
The circumstances under which exemplary damages would be awarded being absent in the present case, the Court below erred in awarding exemplary damages in the case which was a banker and customer relationship built on contractual edifice and or debtor-creditor relationship gone awry and not a tortious or constitutional infringement which is the comfort zone of exemplary damages vide the Supreme Court case of Williams v Daily Times (1990) 1 NWLR (Pt.124) 1 at 30-31 where it was held that exemplary damages are usually awarded where statutes prescribe them and apart from this, they are only awarded for two categories — (a) oppressive, arbitrary or unconstitutional actions of servants of the Government, or where the defendant’s tortious act has been outrageous or scandalous and was done with a guilty knowledge, the motive being that the chances of economic edge or advantage outweigh the chances of economic or even physical penalty thus constituting an act of deliberateness; and that the principle is designed to teach the defendant that tort does not pay or should not be profitable.
It is on these grounds and the more elaborate reasons given in the lead judgment that I too allow the appeal in part on the award of exemplary damages and abide by the consequential order(s) contained in the lead judgment.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother, Olabode Abimbola Adegbehingbe, JCA has availed me the opportunity of reading in draft the lead judgment written and delivered by him. I am in agreement with the reasoning and conclusion arrived at by my lord in allowing the appeal in part. I have nothing useful to add. I subscribe to the order on costs.

Appearances:

Uche Ogwudu, Esq. For Appellant(s)

Donald Atogbo, Esq., with him, Tope Apanisile, Esq. For Respondent(s)