UNITED BANK FOR AFRICA PLC v. YARO BAKIYAWA YAHUZA (2014)

UNITED BANK FOR AFRICA PLC v. YARO BAKIYAWA YAHUZA

(2014)LCN/7439(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of August, 2014

CA/K/253/2013

RATIO

APPEAL: ISSUES FOR DETERMINATION; THE ESSENCE OF AN ISSUE FOR DETERMINATION IN AN APPEAL

BANKING LAW: DUTY OF THE BANK; WHETHER THE DUTY OF THE BANK TO EXERCISE REASONABLE CARE AND SKILL EXTENDS OVER THE WHOLE RANGE OF BANKING BUSINESS WITHIN THE CONTRACT WITH ITS CUSTOMERS

A bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to the operations within its contract with its customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with its customers. Thus, the duty applies to interpreting, ascertaining and acting in accordance with the instructions of the customer – Agbanelo Vs Union Bank of Nigeria (2000) 7 NWLR (Pt 666) 534. Standard Trust Bank Ltd Vs Anumnu (2008) 14 NWLR (Pt 1106) 125, United Bank for Africa Plc Vs Godm Shoes Industries (Nig) Plc (2011) 8 NWLR (Pt.1250) 590, Afribank Nig Plc Vs Anuebunwa supra. The relationship of banker/customer places the bank in the position of a fiduciary to the customer and it thus owes the customer a duty to exercise a high standard of care in managing the customer’s money – Union Bank of Nigeria Plc Vs Chimaeze (2014) LPELR-22699 (SC). The customer on his part undertakes to exercise reasonable care in executing his instructions so as not to mislead the bank or to facilitate forgery – Purification Techniques (Nig) Ltd Vs Attorney General, Lagos State (2004) 9 NWLR (Pt 879) 665. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CIVIL CASES

It is settled law that in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Ogunyade Vs Osunkeye (2007)15 NWLR (Pt.1057) 218, Dim Vs Enemuo (2009) 10 NWLR (Pt.1149) 353, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1. Where however the claimant is able to prove his claim by adducing evidence in support thereof, the burden will shift to the defendant to adduce evidence in rebuttal. Thus, where a claimant alleging a fact pleads that fact and produces evidence in proof of it, then the onus will shift to the defendant to call evidence in rebuttal on preponderance of evidence – Mani vs Shanono (2006) 4 NWLR (Pt 969) 133, Edohoeket Vs Inyang (2010) 7 NWLR (Pt.1192) 25, Bamikole Vs Oladele (2011) 1 NWLR (Pt 1229) 483. If the defendant cannot lead any credible evidence to tilt the scale to his side, judgment will be for the claimant – Dabo vs Abdullahi (2005) 7 NWLR (Pt 923) 181. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF IN CIVIL SUITS

COURT: JUDGEMENT; WHETHER THE COURT CAN ENTER JUDGMENT FOR MORE THAN IS CLAIMED OR FOR LESS THAN CLAIMED

The position of the law, with respect to Counsel to the Appellant, does not support his contention. The law is that while a Court cannot enter judgment for more than is claimed, where the evidence led proves less than is claimed, the court can enter judgment for the less than claimed. Thus, it has been held that where a clamant who is claiming a declaration of title succeeds in proving the boundaries and title to a smaller area of land than he has claimed, he is entitled to declaration of title in respect of such smaller parcel of land, the title and boundaries of which he has proved with certainty – Sogunle Vs Akerele (1967) NMLR 58, Chiwendu Vs Mbamali (1980) 3-4 SC 31, Arabe Vs Asalu (1980) 6-7 SC 74 at 85, Woluchem Vs Gudi (1981) 5 SC 291, Odofin Vs Ayoola (1984) 11 SC 72, Udeze Vs Chidebe (1990) 1 NWLR (Pt 125) 141, Ezeakabekwe Vs Emenike (1998) 1 NWLR (Pt 575) 529. A Court will not dismiss a case simply because the evidence led proved less than is claimed for.This Court will thus not set aside the judgment of the lower Court on this ground but will only re-adjust the judgment to align it with the amount proved in evidence. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

BANKING LAW: CUSTOMER’S MONEY IN THE HANDS OF THE BANKER; WHETHER THE CUSTOMER’S MONEY IN TE HANDS OF THE BANKER REMAIN THE PROPERTY IN THE CUSTODY AND CONTROL OF THE BANKER

It is trite law that customer’s monies in the hands of the banker are not in the custody or under the control of the customer and such monies remain the property in the custody and control of the banker, and payable to the customer when a demand is made. Thus, if anything happens to the money thereafter e.g. theft of money or unauthorized withdrawals, it is the banker and not the customer that bears the loss – Wema Bank Plc vs Osilaru (2008) 10 NWLR (Pt 1094) 150. The lower Court was thus on firm ground when it found that the Respondent made out a credible case on the preponderance of evidence to be entitled to judgment. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

JUSTICES

UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC – Appellant(s)

AND

YARO BAKIYAWA YAHUZA – Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the Katsina State High Court in Suit No KTH/59/2011 delivered by Honourable Justice Sanisu Tukar on the 96 of April 2013.

The action before the lower Court was commenced by the Respondent, as plaintiff, against the Appellant, as defendant, and his claims were for the sum of N1,248,800.00 being the amount illegally withdrawn from his account with the Appellant, interest on the said sum at the rate of 10% from November, 2008 until full liquidation and costs of the action in the sum of N170,000.00.

The case of the Respondent before the lower court was that he was a customer of the Appellant in its Katsina Branch with a savings account No 1252120009296 and that on the 13th, 14th, 15th, 16th, 17th, 18th and 19th of November 2008, the sums of N380,400.00, N340,200.00, N180,900.00, N201,000.00, N201,000.00, N200,000.00 and N85,500.00 respectively were illegally withdrawn from his said account. It was his case that he discovered these facts when he went to withdraw monies from his account and was informed by the staff of the Appellant that he had no funds in his account and that he sought for an explanation from the staff of the Appellant for the lack of funds and that when no reasonable explanation was forthcoming, he demanded for his financial statement of account wherein he noticed the illegal withdrawals. It was his case that his several demands made on the Appellant, both written and oral, to rectify the illegal withdrawals were not acceded to by Appellant.

The Appellant denied the entire case of the Respondent and its case in defence was that the alleged sums were withdrawn using the ATM card of Respondent and that the ATM card was in possession of the Respondent and the secret pin number was known only to the Respondent and the Respondent did not report the loss of the ATM card and as such the monies were either withdrawn by the Respondent himself or by someone the Respondent authorized or permitted to have access to the ATM card and pin number. It was its case that the account of the Respondent was on-line and that it was the exclusive prerogative of the Respondent of where and when to use or withdraw money from the account with the ATM card without any notice to, consultation with or approval from the Appellant and that the ATM machines are automated and programmed to pay money to anyone with the correct ATM card and pin number without its direct involvement and none of its staff or officer had knowledge of the Respondent’s pin number. It was its case that the Respondent was unable to make further withdrawals from the account because there was not enough credit in the account and that if the alleged withdrawals were by an unauthorized person, the Respondent must have willfully or carelessly or negligently exposed his ATM card and pin number to that person and that such person was not a member of its staff, officer of anyone under its control. It was its case that it shall raise the defence of “act of stranger” and that it took all necessary and proper steps to secure the funds of the Respondent and is thus not liable for the loss arising from the alleged withdrawals.

The matter went to trial and in the course of which the Respondent testified as the sole plaintiff witness in proof of his claims and the Appellant also called one witness in proof of its defence. At the conclusion of trial and after the final addresses of the parties, the lower Court entered judgment in favour of the Respondent. The Appellant was dissatisfied with the judgment and it caused its counsel to file an appeal against it. The counsel to the Appellant filed two notices of appeal – one dated the 10th of April, 2013 containing two grounds of appeal and the other dated the 12th of June, 2013 containing eight grounds of appeal.

In ventilating the grievance of the Appellant on this appeal, its Counsel filed a brief of arguments dated the 31st of July, 2013 and Counsel to the Respondent reacted by filing a Respondent’s brief of arguments dated the 4th of September, 2013 on the 13th of September, 2013. Counsel to the Appellant filed a reply brief of arguments dated the 23rd of September, 2013. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.

In his brief of arguments, Counsel to the Appellant abandoned the notice of appeal dated the 10th of April, 2013 and relied on the notice of appeal dated the 12th of June, 2013 in arguing this appeal. Counsel formulated five issues for determination for the eight grounds of appeal contained in that notice of appeal and the issues were:

i. Whether the learned trial Judge made a correct approach to the evidence led by the parties when he reached a conclusion on the evidence led by the Respondent before considering that of the Appellant.

ii. Whether the court below rightly relied upon the admission of knowledge of banking fraud and other fraudulent withdrawals in the banking sector by defence witness which were not part of the pleadings to hold that the Respondent’s evidence was un-impeached.

iii. Whether having regard to the statement of claim and the evidence advanced before the court below, the Respondent proved his case to entitle him to judgment against the Appellant.

iv. Whether the court below was right in failing to consider and resolve one way or the other the preliminary issues the Appellant’s Counsel raised and argued in his final address before the court before proceeding to determine the suit.

v. Whether having regard to the statement of claim and evidence led by the Respondent, the court below was right in granting pre-judgment interest of 10% in favour of the Respondent.

On the first issue for determination, Counsel stated that the approach adopted by the lower court in first considering the evidence adduced by the Respondent and in believing same as true and correct because it was not impeached in any way, before going on to consider the evidence adduced by the Appellant was wrongful and that what was expected of the lower Court was to first and foremost put the evidence adduced before it by both parties on an imaginary scale and to see where the scale tilts before pronouncing or reaching a conclusion on the evidence led by any party.

Counsel referred to the cases Mogaji Vs Odofin (1981) 1 SC 101 and Henshaw Vs Effanga (2009) All FWLR (Pt 466) 1896. Counsel stated that while a Judge has liberty to decide the style to adopt in writing of judgment, there are some minimum standards and procedure which must be adopted in order to reach a fair determination of the case before the Court and that the lower Court failed to abide these minimum standards in the instant case. Counsel stated that the approach adopted by the lower Court showed that it had made up its mind to enter judgment for the Respondent before it considered the evidence adduced by the Appellant in its defence.

On the second issue for determination, Counsel stated that in civil proceedings contested on pleadings, a party is enjoined to lay bare the facts which he desires to rely on to prove his case and that the parties and the Court are bound by the facts pleaded by the parties and he referred to the case of Agagu Vs Mimiko (2009) All FWLR (Pt 462) 1122. Counsel stated that it follows that any fact to be used in a civil proceeding tried on pleadings must be pleaded and evidence elicited during cross examination must be on pleaded facts for it to be useful and he referred to the case of Isheno vs Julius Berger (Nig) Ltd (2008) All FWLR (Pt 415) 1632. Counsel stated that the facts elicited from the defence witness under cross-examination in the instant case on the issue of fraud in the banking sector were not pleaded and that the lower Court was thus in error when it placed reliance on the evidence in entering judgment in favour of the Respondent and he referred to the case of Okwejiminor Vs Gbekeji (2008) All FWLR (Pt 409) 405.

On the third issue for determination, Counsel stated that for a claimant in a civil case to succeed, he must lead clear, cogent and admissible evidence on the facts pleaded and he must align the evidence with the facts alleged or asserted by him in his pleadings and that any evidence led outside the pleaded facts go to no issue and he referred to the cases of Nwabude Vs Ugodu (2011) All FWLR (Pt.604) 26 and Momoh Vs Umoru (2011) All FWLR (Pt 588) 797. Counsel stated that the Respondent did not plead in the body of the statement of claim the sum of N1,248,800.00 claimed in the reliefs and neither did he plead facts supporting the claim for pre-judgment interest and that the Respondent did not also lead evidence on either the sum of N1,248,800.00 or the pre-judgment interest and that the evidence of the Respondent was that it was the sum of N1,090,211,.00 that was missing from his account. Counsel stated that there was thus no basis for the lower Court to have entered judgment in favour of the Respondent in the said sum of N1,248,800.00 or for pre-judgment interest and he referred to the cases of Ironbar Vs FMF (2009) 15 NWLR 529 and Osuji Vs Ekeocha (2009) All FWLR (Pt490) 614.

On the fourth issue for determination, Counsel stated that a court of law was duty bound to consider all issues raised or placed before it by parties before proceeding to determine a case and he referred to the cases of Miden Systems Ltd Vs Effiong (2001) All FWLR (Pt 591) 1596 and AG Leventis Nig. Plc Vs Akpu (2007) All FWLR (Pt 388) 1028. Counsel stated that the Appellant raised, in its final written address, two preliminary issues of reasonable cause of action and non-particularization of the acts of illegality alleged by the Respondent and its Counsel canvassed arguments on the issues, but that the lower Court completely ignored the issues and did not consider them before entering judgment for the Respondent. Counsel stated that this amounted to a denial of fair hearing and which occasioned a miscarriage of justice and that had the lower Court considered the preliminary issues it would have come to the conclusion that the suit of the Respondent did not disclose a reasonable cause of action against the Appellant and he referred to the case of Katto Vs Central Bank of Nigeria (1991) 9 NWLR (Pt.214) 126.

On the fifth issue for determination, Counsel stated that a claim for pre-judgment interest was in the nature of a claim for special damages and claimant must specifically plead facts which make him entitled to the relief and he referred to the cases of Abuja Trans-National Market Vs Abdu (2007) All FWLR (Pt 376) 657 and Ironbar Vs FMF (2009) 15 NWLR 529. Counsel stated that the Respondent failed to plead any facts in the body of the pleadings to ground the claim for pre-judgment interest and that as such the judgment of the lower Court awarding the relief was not based on the evidence but on conjecture and he referred to the case of Sagay Vs Sajere (2000) 6 NWLR (Pt 661) 360.

In his response, Counsel to the Respondent adopted the five issues as formulated by Counsel to the Appellant. In arguing the first issue for determination, Counsel to the Respondent stated that the complaint of the Appellant on the issue was as to the style adopted by the lower Court in writing its judgment and that there was no laid down mode of writing judgment and every Judge was at liberty to choose any style of writing so long as he arrives at the just conclusion of the case. Counsel stated that the only requirement of a trial Court in the determination of a case was to constantly bear in mind the case as presented by the parties, the onus of proof and to weigh the case of the parties on that imaginary scale to see which evidence preponderates over the other and he referred to the cases of ASHA Vs Tijjani (2012) 9 NWLR (Pt 1303) 483 and Nwankpu Vs Ewulu (1995) 7 SCNJ 179. Counsel stated that it was thus immaterial that the lower Court first considered the evidence adduced by the Respondent and believed it before proceeding to consider the case of the Appellant as the approach did not occasion a miscarriage of justice.

On the second issue for determination, Counsel stated that the lower Court only relied on the testimony of the defence witness to find support for the case of the Respondent and that it was trite law that a party can rely on the averments contained in both the pleadings and evidence led thereon by his adversary to support his own case and he referred to the case of Olatunji vs Waheed (2012) 7 NWLR (Pt 1298) 24. On the third issue for determination, Counsel stated that the Respondent pleaded sufficient facts and led credible evidence in proof of his case and that the only conclusion derivable from the evidence was that the money of the Respondent was wrongly withdrawn from his account because of the negligence or lack of care on the part of the Appellant. Counsel stated that the Respondent pleaded the amount of N1,248,800.00 in the statement of claim, paragraph 4 thereof, contrary to the assertion of the counsel to the Appellant, and that where it is found that the Respondent led evidence to prove a lesser amount, the Court can still enter judgment for the lesser amount Proved.

On the fourth issue for determination, Counsel stated that it was incorrect that the lower court did not consider the preliminary issues raised by the counsel to the Appellant in the final written address and that the issues were duly considered and rejected by the lower Court. On the fifth issue for determination, Counsel stated that the position of the law as stated by the Supreme Court is that in purely commercial transactions, a party who holds unto the money of another and keeps it for a long time without any justification and thus deprived that other of the use of the funds for the period, should be liable to pay compensation by way of interest and that the court is entitled to award interest as a consequential order, even where it is not claimed in the writ of summons or statement of claim; he referred to the case of ALDB Ltd Vs IDS Ltd (2012) 17 NWLR (Pt 1328) 1.

Now, it is settled law that an issue for determination in an appeal is a point which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501 and G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt 945) 392.Reading through the records of appeal, the notice of appeal and the arguments of the Counsel to the parties in their respective briefs of arguments, and applying the above stated principle of law, it is obvious that there is only one issue for determination in this appeal. It is:

Whether the Respondent made out a credible case on the pleadings and adduced cogent evidence at trial to warrant the lower Court entering judgment in his favour.

In entering judgment for the Respondent, the lower Court stated thus:

“… the appropriate sole issue for determination is whether the Plaintiff has proved his claim in line with the dictate of the provisions of Section 134 of the Evidence Act as amended which demands that in civil cases like the instant one, the burden of proof shall be discharged on the balance of probabilities …

As earlier alluded the evidence of PW1 i.e. the Plaintiff stands un-impeached. He has clearly and graphically narrated before the Court how the balance of his money as Per Exhibit “A” was missing in his account, and in furtherance thereof how DW1 has admitted banking fraud and similar fraudulent withdrawals in the banking sector.

The defence as put up by the defendant equally as earlier mentioned herein before goes to support the claim of the Plaintiff especially in reply during cross-examination.

The cases cited by learned Counsel to the defendant might have been good for what they provided but are certainly not on all fours with the instant case at hand.

I equally find solace in the case of Rinco Construction Vs Vee Pee Ind Ltd (supra) cited by the learned Counsel to the defendant and I quote “In order to find a defendant liable in civil proceedings, the Plaintiff must prove that the legal conduct of the defendant has done some wrong to the Plaintiff, a wrong which justifies a relief in law. In other words, there must be a legal nexus between the claim and the legal conduct of the defendant in such a way that a court will find the defendant liable, where there is no such nexus, the trial judge cannot find the defendant liable and the claim must fail.”

In the instant case there is sufficient legal nexus in a customer/banker relationship between the Plaintiff and the defendant and the claim succeeds.

Thus having regard to the facts of this case viz-a-viz the position of the law, I have no hesitation in holding that the Plaintiff has proved his case and I enter judgment in his favour as per the terms of his statement of claim …” (see pages 48-49 of the records)

In their respective cases before the lower Court, the parties were agreed that the Respondent was a customer of the Appellant in its Katsina Branch with a savings account No 1252120009296. There was thus a banker/customer relationship between the parties and this relationship carries legal implications. It is settled that in law and the practice of banking, the relationship between a bank and its customer is contractual – Union Bank of Nigeria Plc Vs Ajabule (2011) 18 NWLR (Pt 1278) 152, Afribank Nig Plc Vs Anuebunwa (2012) 4 NWLR (Pt 1291) 560. By the contract, the bank undertakes to receive money and collect bills for its customer and the proceeds so received are not to be held in trust for the customer, but the bank borrows the proceeds and undertakes to repay them on demand by the customer –

Mai vs standard Trust Bank Ltd (2008) All FWLR (Pt.399) 552

The complaint of the Respondent in his case before the lower Court was that moneys he deposited in his account with the Appellant were illegally withdrawn from the account on different dates without his knowledge, consent or authorization. The case of the Appellant in response was that the alleged sums were withdrawn using the ATM card of Respondent which was in his possession and the secret pin number was known only to the Respondent and that as such the monies could only have been withdrawn either by the Respondent himself or by someone the Respondent authorized or permitted to have access to the ATM card and pin number and that if the alleged withdrawals were by an unauthorized person, the Respondent must have willfully or carelessly or negligently exposed his ATM card and pin number to that person.

Looking at the respective obligations of the parties under the contractual relationship of banker/customer, the onus on the Respondent before the lower Court was to lead evidence showing that he had funds in his account with the Respondent and that he did not withdraw the funds and did not authorize any person to withdraw the funds nor did he expose his ATM card to anyone. And after which the onus must necessarily shift to the Appellant to show that the withdrawals were made either by the Respondent or by someone authorized by the Respondent or someone to whom the Respondent carelessly or willfully exposed his ATM card and pin number to and that it exercised reasonable diligence and skill in its handling of the funds of the Respondent in its care and control.

The records of appeal show that the Respondent led evidence that on the 11th of November, 2008 he withdrew the sum of N700,000.00 from his account with the Appellant and left a balance of N1,090,211.00 in the account and that he went back to the bank on the 21st of November, 2008 to make a further withdrawal and he was told that he had no funds in his account. The Respondent tendered his statement of account as Exhibit 1A – L and this showed that there was indeed a credit balance of N1,090,211.00 in the account on the 11th of November, 2008 and also that this entire sum had been withdrawn from the account by the 21st of November, 2008. The Respondent testified under cross-examination that he did not make any of the withdrawals that took place after the 11th of November, 2008 from the account and that he did not give his ATM card to anyone nor did he reveal his pin number to anyone and that his ATM card was not lost or missing. The lower Court found that the testimony of the Respondent was un-impeached by the Appellant and the Appellant has not given this court any cause to disagree with this finding of the lower Court.

The sole witness for the Appellant, a staff of the bank, testified that following the letter of complaint of the Respondent on the alleged withdrawals, the matter was referred to their office in Lagos for investigation and that after a detailed investigation the Lagos office responded that the withdrawals were made through the ATM machine and that the only way money could have been withdrawn from the Respondent’s account through the ATM was with the Respondent’s ATM card and secret pin number known only to the Respondent. The witness stated that the ATM card was in the possession of the Respondent and it was thus concluded by the bank that the withdrawals were made by the Respondent. Under cross-examination, the witness admitted that there had complaints from other customers of the bank, apart from the Respondent, of unauthorized withdrawals from their accounts and that such withdrawals were fraudulent and usually occurred through the ATM machine and that it was correct that the Regional Manager of the Appellant, one Farouk Lawal, informed the Respondent, when he made the complaint, that there was a possibility that a fraud was committed on the account of the Respondent.

In other words, while the witness of the Appellant maintained in examination in chief that only the Respondent could have made the withdrawals from the account through the ATM machine as he was the person in possession of the ATM card and only he knew the pin number, he admitted under cross-examination that the bank was aware that fraudulent and unauthorized withdrawals were being made from the accounts of its customers through the ATM machine without the knowledge, consent or authorization of the customers. The evidence of the witness under cross-examination took the “wind out of the sail” of the assumption in the case of the Appellant that only the Respondent could have made the alleged withdrawals and thus further evidence was required from the Appellant to ground its case that, in this particular instance, it was the Respondent that indeed made the alleged withdrawals complained about. The Appellant led no such evidence and the lower Court was thus correct when it stated that the testimony of the defence witness under cross-examination strengthened the case of the Respondent. The Appellant did not also give evidence of the security safe guards that it put in place to forestall fraudulent withdrawals from the accounts of its customers after the many complaints it admitted receiving and/or of how it exercised reasonable diligence in managing the moneys of the Respondent in its possession.

In civil suits, cases are won upon a preponderance of evidence. It follows therefore that a claimant in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Dibiamaka Vs Osakwe (1989) 3 NWLR (Pt 107) 101 at 113, Jiaza Vs Bamgbose (1999) 7 NWLR (Pt 610) 182, Mbani vs Bosi (2006) 11 NWLR (Pt 991) 400, Egwa Vs Egwa (2007) 1 NWLR (Pt 1014) 71. It cannot be contested that the Respondent led better evidence in the discharge of the onus of proof on him than the Appellant did in the discharge of its onus of proof. It is trite law that customer’s monies in the hands of the banker are not in the custody or under the control of the customer and such monies remain the property in the custody and control of the banker, and payable to the customer when a demand is made. Thus, if anything happens to the money thereafter e.g. theft of money or unauthorized withdrawals, it is the banker and not the customer that bears the loss – Wema Bank Plc vs Osilaru (2008) 10 NWLR (Pt 1094) 150. The lower Court was thus on firm ground when it found that the Respondent made out a credible case on the preponderance of evidence to be entitled to judgment.

Counsel to the Appellant stated that while the Respondent claimed that the sum of money allegedly withdrawn from his account was N1,248,880.00, the evidence led was that the sum that was withdrawn from the Respondent’s account between the 11th of November, 2008 and the 21st of November, 2008 was N1,090,211.00. Counsel stated that the evidence led was thus at variance with the facts pleaded and should not have been acted upon by the lower Court to enter judgment in favour of the Respondent and as such this Court should set aside the judgment.

Thus, it has been held that where a clamant who is claiming a declaration of title succeeds in proving the boundaries and title to a smaller area of land than he has claimed, he is entitled to declaration of title in respect of such smaller parcel of land, the title and boundaries of which he has proved with certainty – Sogunle Vs Akerele (1967) NMLR 58, Chiwendu Vs Mbamali (1980) 3-4 SC 31, Arabe Vs Asalu (1980) 6-7 SC 74 at 85, Woluchem Vs Gudi (1981) 5 SC 291, Odofin Vs Ayoola (1984) 11 SC 72, Udeze Vs Chidebe (1990) 1 NWLR (Pt 125) 141, Ezeakabekwe Vs Emenike (1998) 1 NWLR (Pt 575) 529. A Court will not dismiss a case simply because the evidence led proved less than is claimed for.This Court will thus not set aside the judgment of the lower Court on this ground but will only re-adjust the judgment to align it with the amount proved in evidence.

Counsel to the Appellant further complained that the preliminary issue raised by Appellant on the failure of the case of the Respondent to make out a reasonable cause of action against it was completely ignored and not resolved by the lower Court in the judgment. With respect to Counsel to the Appellant, nothing can be farther from the truth. The issue of reasonable cause of action was duly considered by the lower Court in the judgment and it was in resolution of the issue that the lower Court made the following statement:

“I equally find solace in the case of Rinco Construction Vs Vee Pee Ind Ltd (supra) cited by the learned Counsel to the defendant and I quote “In order to find a defendant liable in civil proceedings, the Plaintiff must prove that the legal conduct of the defendant has done some wrong to the Plaintiff, a wrong which justifies a relief in law. In other words, there must be a legal nexus between the claim and the legal conduct of the defendant in such a way that a court will find the defendant liable, where there is no such nexus, the trial judge cannot find the defendant liable and the claim must fail.”

In the instant case there is sufficient legal nexus in a customer/banker relationship between the Plaintiff and the defendant and the claim succeeds.”

Counsel to the Appellant also raised the issue of the pre-judgment interest of 10% awarded by the lower Court on the sum of money that was illegally withdrawn from the account of the Respondent. Counsel stated that the Respondent failed to plead any facts in the body of the pleadings to ground the claim for pre-judgment interest or lead any evidence thereon and that the lower Court ought not to have awarded prejudgment interest. In response, Counsel to the Respondent stated that the position of the law is that in purely commercial transactions, a party who holds unto the money of another and keeps it for a long time without any justification and thus deprived that other of the use of the funds for the period is liable to pay compensation by way of interest and that the Court is entitled to award interest as a consequential order, even where it is not claimed in the writ of summons or statement of claim.

The general rule at common law is that pre judgment interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect. Thus, a plaintiff, in order to succeed in a claim for pre judgment interest, must show how the entitlement to such interest arose, that is whether by law, by contract or agreement or he must plead facts showing that the claim is part of the loss or special damages which the defendant’s wrong imposed on him. It is not enough to merely say that the plaintiff is claiming interest. The basis of the claim of interest must be made manifest on the pleadings – Ekwunife Vs Wayne (W.A.) Ltd (1989) 2 NWLR (Pt 122) 422, Alfontrin Ltd Vs Attorney General, Federation (1996) 9 NWLR (Pt 475) 634, Diamond Bank Ltd Vs Partnership Investment Co Ltd (2009) 18 NWLR (Pt 1172) 67, Sani Abacha Foundation for Peace & Unity Vs United Bank for Africa Plc (2010) 17 NWLR (Pt 1221) 192. Onnoghen, JSC made the point in A.G. Ferrero & Co Ltd Vs Henkel Chemicals (Nig) Ltd (2011) 13 NWLR (Pt 1265) 592:

“It follows that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest but the basis of the entitlement either by statute or contract/agreement between the parties, or mercantile custom or principle of equity such as breach of fiduciary relationship. It is not for the court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts must be pleaded, as facts not pleaded ground to no issue. In addition to the requirement of pleading relevant facts, the plaintiff must adduce evidence at the trial in proof of the relevant facts…”

It is, however, not in every case that facts have to be pleaded and evidence adduced in respect of interest claimed before interest can be awarded. The courts recognize that interest can be awarded under their equitable jurisdiction as compensation for a claim for refund of money held for a long time. Where a case is brought to court on commercial matters and where in ordinary commercial practice money would, on the facts, have been paid sometime ago, it ought to carry interest. In Nigerian General Superintendence Co. Ltd Vs Nigeria Ports Authority (1990) 1 NWLR (Pt 129) 741, the Court of Appeal stated the principle thus:

“A judgment for the return of money is usually accompanied by an award of interest for the period for which it is claimed. In appropriate cases when interest is awarded, though not claimed in the writ it is in the nature of a consequential order. In the case of Herbutts Plastacine Ltd vs Wayne Tanak and Pump Corporation Ltd …, Lord Denning stated

“It seems to me that the basis of an award of interest is that the defendant has kept the plaintiff out of his money and the defendant has had the use of it to himself. So he ought to compensate the plaintiff accordingly.”

The principle was reiterated by the Supreme Court in Daniel Holdings Ltd Vs United Bank for Africa Plc (2005) FWLR (Pt 277) 895 and African International Bank Ltd Vs Integrated Dimensional System Ltd (2012) 17 NWLR (Pt 1328) 1, and by the Court of Appeal in United Bank for Africa Plc Vs BTL Industries Ltd (2004) 18 NWLR (Pt 904) 180.

In the instant case, though it was an action brought on a commercial matter, the case of the Respondent was that the monies in his account were illegally withdrawn there from by a third party and not that the Appellant kept him out of the money and retained the money for its use. Thus, the basis for the exercise of the equitable jurisdiction of the Court to award interest, without the need for pleaded facts and evidence, was not present in the instant case. The Respondent could thus only have been entitled to pre-judgment interest as of right and he needed to have pleaded facts and led evidence to sustain the claim. The Respondent did not plead any such fact or lead any evidence in proof of the claim. The lower Court was thus in error when it granted pre-judgment interest in favour of the Respondent. The claim will be set aside by this Court.

In conclusion, the appeal succeeds in part and fails in part. The judgment of the Katsina State High Court in Suit No KTH/59/2011 delivered by Honourable Justice Sanisu Tukar on the 9th of April 2013 is hereby affirmed in part and set aside in part.

It is hereby ordered as follows:

i. It is hereby ordered that the Appellant shall refund to the Respondent the sum of N1,090,211.00 (One Million and Ninety Thousand, Two Hundred and Eleven Naira) being the sum proved by the Respondent to have been illegally withdrawn from his account with the Appellant.

ii. The award of interest on the said sum at the rate of 10% from November 2008 until the date of judgment in the lower Court, the 9th of April, 2013, made by the lower Court is set aside.

iii. The award of interest on the said sum at the rate of 10% from the date of judgment in the lower Court, the 9th of April, 2013, until the entire sum is refunded made by the lower Court is affirmed.

iv. The parties shall bear their respective costs of this appeal.

These shall be the orders of this Court.

UWANI M. ABBA AJI, J.C.A.: I have had the privileged of reading in advance the lead judgment just delivered by my learned brother H.A.O. Abiru, JCA. My learned brother painstakingly considered the issues raised in this appeal and resolved them accordingly, I agree with the reasoning and conclusion that the appeal succeeds in part to the extent as stated in the lead judgment of my learned brother. I also endorsed the consequential order as to costs.

ABDU ABOKI, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU JCA, just delivered.

I agree with his reasoning and conclusion that the appeal succeeds in part and fails in part. I also abide by the consequential orders in the lead judgment.

Appearances

Ikechukwu AnyalewechiFor Appellant

AND

A.I.T. Adams with Blessing AuduFor Respondent