CHIEF JOSEPH OLUWOLE ODULATE v. FIRST BANK NIGERIA LIMITED (2019)

CHIEF JOSEPH OLUWOLE ODULATE v. FIRST BANK NIGERIA LIMITED

(2019)LCN/12964(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/L/1450/2016

RATIO

PRELIMINARY OBJECTION: IMPORTANCE IN LAW

A Preliminary Objection as a matter of law is a process or procedure via which a party to an action may truncate the proceedings therein on account of a fundamental defect in the way the matter is constituted, which renders the taking of further action in the proceedings a meaningless waste of time and effort.
See: HASSAN V. ALIYU & ORS. (2010) LPELR-1357(SC); IHEDIOHA v. OKOROCHA (2015) LPELR-25645(CA); and DUKE v. ADMINISTRATOR GENERAL, PUBLIC TRUSTEE & ORS (2018) LPELR-44405(CA).PER JAMILU YAMMAMA TUKUR, J.C.A.

PRELIMINARY OBJECTION: NATURE AND PURPOSE
The Supreme Court in the case of BANK OF INDUSTRY LTD v. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR-43812(SC), page 7 para. B-D, per Rhodes-Vivour JSC, reiterated the above principle of law thus:
“This Preliminary Objection is against the hearing of this suit. In Isah v. INEC & 3 Ors (2014) 1-2 SC (Pt.iv) p.101. I explained Preliminary Objections and when to file them and when not to file them. I said that: “A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appealcomes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice.
See: SHERIFF & ORS v. MOHAMMED & ORS (2018) LPELR-43868(CA); FLOGRET LTD & ANOR v. THE MV DONGXIN 8 & ORS (2018) LPELR-45348(CA); and SARKI v. LAMELA (2016) LPELR-40338(CA).PER JAMILU YAMMAMA TUKUR, J.C.A.

COURTS: THE COURT IS BOUND BY THE CASE BEFORE IT
There is no gainsaying the settled principle of law to the effect that the Court is bound to determine the case before it, as made out by the pleadings of the parties, particularly the Claimants or Plaintiffs cause of action.
The Supreme Court in the case of A.G. OF ADAMAWA STATE & ORS v. A.G. OF THE FEDERATION (2014) LPELR-23221(SC) (P. 28, paras. C-F) Per PETER-ODILI, J.S.C, defined cause of action thus:
”The definition that has been followed on cause of action is that cause of action is the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. Thus, when an action is said to be statute-barred, what it connotes is that the plaintiffs may have an actionable cause of action, but their recourse to judicial remedy is voided. No proceedings could be brought to prosecute the action. Muhammed v Military Administration, Plateau State (2001) 16 NWLR (Pt.740) 510 at 544 – 545; Egbe v Adefarasin (1985) 1 NWLR (Pt. 3) 1; Yusuf v C.C.B. Ltd (1994) 7 NWLR (Pt.359) 676.”PER JAMILU YAMMAMA TUKUR, J.C.A.

CAUSE OF ACTION: HOW IS IT DETERMINED
In line with the above, the Apex Court in the case of OPIA v. INEC & ANOR (2014) LPELR-22185(SC) (P. 20, paras. D-F) Per GALADIMA, J.S.C, held thus:

”A cause of action is determined by reference to the plaintiff’s statement of claim. The immediate materials a Court should look at are the Writ of Summons and averments in the statement of claim: GABIRI OGBIMI v. BEAUTY OLOLO & ORS. (1993) SC.447; ALHAJI M. ABUBAKAR v. BEBEJI OIL & ALLIED PRODUCT LTD. & ORS. (2007) 2 SCNJ 170 and AJAYI v. ADEBIYI (2012) ALL FWLR (Pt.634) 1 at 30 D.
See: OWURU & ANOR v. ADIGWU & ANOR (2017) LPELR-42763(SC); CBN & ANOR v. MICHAEL (2018) LPELR-44251(CA); and PANYA v. PRESIDENT, FRN & ORS (2018) LPELR-44573(CA).PER JAMILU YAMMAMA TUKUR, J.C.A.

BANKER CUSTOMER RELATIONSHIP: WHETHER EVERY CASE AGAINST A BANKER IS ONE OF BREACH OF CONTRACT

OONTRACT LAW: BREACH OF CONTRACT: WHAT A CLAIMANT MUST PROVE OR SHOW TO SUCCEED

The Supreme Court gave a succinct exposition of the foregoing in the case of BEST NIGERIA LTD. v. BLACKWOOD HODGE NIGERIA LTD. (2011) LPELR-776(SC) (P.42, Paras.D-E) Per Adekeye, J.S.C. thus:
“For a claimant to succeed in an action for breach of contract, he must establish not only that there was a breach but also that there was in existence an enforceable contract which was breached.”
See: DIAMOND BANK LTD v. PAMOB WEST-AFRICA LTD (2014) LPELR-24337(CA); and JACOB V. AFAHA (2012) LPELR-7854(CA).PER JAMILU YAMMAMA TUKUR, J.C.A.

DAMAGES: NATURE

Damages are not awarded as a matter of course, especially as it pertains to special damages. The party seeking such after establishing the breach, must show how the breach caused injury that is requiring damages. For special damages, the party must itemise every particular expense that requires damages.
See:OKOI v. BMIL INT’L INC & ANOR (2016) LPELR-41230(CA); DAUDA V. LAGOS BUILDING INVESTMENT COMPANY LTD & ORS. (2010) LPELR-4024(CA); and PATAMA LTD & ORS v. UBN PLC (2015) LPELR-24535 (CA).PER JAMILU YAMMAMA TUKUR, J.C.A.

TORT: NEGLIGENCE: NATURE
Negligence is the tort that protects a person from careless action from another, that can injure or harm him. The law places a duty of care on various persons in various circumstances, where such a person breaches the duty of care placed upon him by law and that breach resulted in injury to the person to whom such duty is owed, the bearer of the duty is said to have been negligent and will be liable in damages to repair the injury caused. The Supreme Court in the case of HAMZA V. KURE (2010) LPELR-1351(SC) (P. 14, paras. E-G) Per Mohammad J.S.C., defined negligence thus:
“As far back as 1856, Lord Alderson B., defined negligence to be the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. See: BLYTH V. BIRMINGHAM WATERWORKS COMPANY. [1856] 11 Exch. 781 at 784. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.”PER JAMILU YAMMAMA TUKUR, J.C.A.

LAW OF BANKING: WHETHER BANKS OWE CUSTOMERS A DUTY OF CARE

It is true in law and in fact to state that Banks owe their customers a duty of care. Banks are professional and commercial keepers of money who have represented that they would keep in safe custody any money or other valuables their customers may keep with them. The law holds them to that promise and also expects Banks to promptly comply with lawful instructions of their customers with regards to money kept in the Bank?s custody. The Apex Court in the case of UBN PLC v. CHIMAEZE (2014) LPELR-22699(SC) (Pp. 40-41, paras. G-A) Per ARIWOOLA J.S.C
“…the appellant is a fiduciary to the respondent. It owes the respondent a duty to exercise a high standard of care in managing the respondent’s money. Therefore, for dishonouring his cheque when his account was in credit to accommodate the amount on the cheque, the appellant had breached the fiduciary relationship between them, to which the respondent was entitled to compensation by way of damages.”
See: FCMB v. ACTION ALLIANCE (2018) LPELR-44445(CA); and SKYE BANK v. OLALEYE (2018) LPELR-45568(CA).PER JAMILU YAMMAMA TUKUR, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

CHIEF JOSEPH OLUWOLE ODULATE Appellant(s)

AND

FIRST BANK NIGERIA LIMITED Respondent(s)

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State in Suit No: LD/1697/2010 delivered on 8th April, 2016, by Honourable Justice D.T Okuwobi (Mrs) in favour of the Respondent.

The material facts leading to this appeal, are that the Appellant acting on the belief that the Respondent had failed in its duty as Banker to the Appellant, particularly with regards to unauthorized withdrawals from the Appellant?s account, instituted an action before the lower Court via a Writ of Summons dated 23rd August, 2010, seeking the following reliefs:
a.The sum of N4,370,630 (Four Million, Three Hundred and Seventy Thousand, Six Hundred and Thirty Naira) being money had and received by the Defendant from the Claimant as deposit.
b. The sum of N3 million being special damage
c. The sum of N2 million being exemplary damage
d. The sum of N10 million being general damage.

Other requisite processes were exchanged and the matter went through a full trial. In a considered judgment dated 8th April, 2016, the learned trial Judge found that the

Claimant failed to prove his case and consequently dismissed same.

Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 8th November, 2016, with 6 grounds of appeal. (pages 181 ? 185 of the Record of Appeal).

The Appellants Brief of Argument settled by Kenneth Kelle Esq., of Alliance Legal, is dated and filed on 18th September, 2017, but deemed as properly filed on 12th February, 2018. Appellants Reply Brief is dated 31st January, 2019 and filed on 1st February, 2019, and deemed properly filed and served on 6-2-19.

Appellants counsel formulated three issues for determination to wit:
1. Whether the claim of the Appellant for N4,370,630.00 was for breach of contract or for negligence of the Respondent (Ground 1)
2.Assuming there was onus to prove negligence (without conceding) on the Appellant, whether there was not enough evidence to hold the Respondent liable in negligence (Grounds 2 and 5)
3.Whether the Appellant showed loss of N4,370,630.00 (Grounds 3,4,6)

On the other hand, the Respondent?s Brief settled by Anozie Douglas Benson Esq., of Osaretin

Giwa-Osagie & Co., was filed on 28th March, 2018, but deemed properly filed on 6th February, 2019.

Respondents counsel distilled a sole issue for determination to wit:
Whether the Learned Trial Judge was right to have dismissed Appellant?s claims on the ground that the Appellant failed to prove elements of negligence (Grounds 2,3,4 and 5)

PRELIMINARY OBJECTION
Learned counsel for the Respondent argued that contrary to the Appellant?s submission, the case made out by the Appellant at trial, was based on negligence and not breach of contract. He submitted that Appellant?s arguments on breach of contract at this stage amounts to raising a fresh issue on appeal and ought to be discountenanced by this Court.

He relied on: Brawal Shipping Nigeria Ltd v. Ometraco International Ltd (2011) 10 NWLR (Pt.1255) 290 at pg 312 paras G-H; Fagbenro v. Arobadi (2006) 7 NWLR (Pt. 978) 172 @ 194-195; Ojiogu v. Ojiogu (2010) Vol. 3 (Pt.111) MJSC 121 @ 143-144, paras E-A.

On the other hand, learned counsel for the Appellant argued that the Preliminary Objection is incompetent as it only attacks one ground of appeal, thus

making it incapable of putting an end to the appeal as required by law. He cited the case ofNEPA v. ANGO (2001) 15 NWLR (Pt. 737) 627 @ 640.

Learned counsel also argued that the appeal does not argue a fresh issue before this Court because the facts before the lower Court can ground breach of contract and actually makes out a case of breach of contract as it sets out the fact that there is a banker, customer relationship between the Appellant and Respondent, which is a Debtor and Creditor relationship founded on simple contract.

He relied on the cases of Headley Bryne & Co Ltd v. Heller & Partners Ltd (1964) AC 465; Bakare v. Nigerian Railway Corporation (2007) 7-10 SC @ 19; and Yusuf v. Cooperative Bank Nig Ltd (1994) 7 NWLR (Pt.359) 676.

RESOLUTION
A Preliminary Objection as a matter of law is a process or procedure via which a party to an action may truncate the proceedings therein on account of a fundamental defect in the way the matter is constituted, which renders the taking of further action in the proceedings a meaningless waste of time and effort.
See: HASSAN V. ALIYU & ORS. (2010) LPELR-1357(SC);

IHEDIOHA v. OKOROCHA (2015) LPELR-25645(CA); and DUKE v. ADMINISTRATOR GENERAL, PUBLIC TRUSTEE & ORS (2018) LPELR-44405(CA).
The practical implication of the above, with regards to appeals before this Court is that where a process professes to be by way of a preliminary objection, such should be capable of terminating the appeal, and should not be an attack on a single ground or only some few grounds of appeal.
The Supreme Court in the case of BANK OF INDUSTRY LTD v. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR-43812(SC), page 7 para. B-D, per Rhodes-Vivour JSC, reiterated the above principle of law thus:
“This Preliminary Objection is against the hearing of this suit. In Isah v. INEC & 3 Ors (2014) 1-2 SC (Pt.iv) p.101. I explained Preliminary Objections and when to file them and when not to file them. I said that: “A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal

comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice.?
See: SHERIFF & ORS v. MOHAMMED & ORS (2018) LPELR-43868(CA); FLOGRET LTD & ANOR v. THE MV DONGXIN 8 & ORS (2018) LPELR-45348(CA); and SARKI v. LAMELA (2016) LPELR-40338(CA).
The consequence of the above principle of law to the facts of this appeal, is that the putative preliminary objection argued in the Respondent?s Brief, has no leg upon which to stand, seeing as it is clearly an attack on only ground 1 of the Appellant?s Notice of Appeal. The Preliminary Objection is therefore dismissed.

A comparison of the issues raised by counsel of both parties reveals that they are substantially the same. I therefore adopt the Appellants? issues, with the slight modification of subsuming his issue 3 into issue 2, for the purpose of convenience in this appeal.

ISSUE ONE
WHETHER THE CLAIM OF THE APPELLANT FOR N4,370,630.00 WAS FOR BREACH OF CONTRACT OR

FOR NEGLIGENCE OF THE RESPONDENT (GROUND 1)

Learned counsel for the Appellant argued that the lower Court misdirected itself by departing from the case of contract before it at trial, as presented in the Appellant?s statement of claim, arguments and evidence before the lower Court; and deciding the case based on negligence.
He relied on the following:
Bakare v. Nig Railway Corp. (2007) 7-10 SC @ 19; Ariolu v. Ariolu (2011) 11 NWLR (Pt.1258) 288 at 296 para. 5; and Yusuf v. Cooperative Bank Ltd (1994) 7 NWLR (Pt.359) 676

He further argued that the act of the trial Court in deciding the action based on the principles of negligence, resulted in a miscarriage of justice, as the onus of proof upon which the trial Court decided the matter was consequently erroneous and the decision resulting there from ought to be set aside.

He cited the cases of Okotie-Eboh v. Manager (2004) 18 NWLR (Pt.905) 242 @ 280; Onyekachukwu & Ors v. Ekwubiri & Ors (1986) 1 ALL NLR 32; and IGP v. UBAH (2015) 11 NWLR (PT1471) 405 para 28 at 422.

?Counsel submitted that the Respondent made payments to a third party without the Appellant?s

authorisation and refusal to credit the Appellant?s account in spite of repeated demands to that effect constitutes breach of contract, which ought to attract damages and urged this Court to grant the Appellant?s claim for damages as endorsed on the statement of claim in page 5 of the records.

He relied on Abacha Foundation for Peace & Unity & 5 Ors v. UBA PLC (2010) 2-3 SC. (PTII); Anambra State Environmental Sanitation Authority v. Ekwenem (2009) 2-7 SC (PT II) 5 at 10; Kopek Construction Ltd v. Ekisola (2010) 1 SC (PT.1) 1 at 4; GKFI (Nig) Ltd v. NITEL Plc (2009) 15 NWLR (Pt.1164) 344 SC

Learned counsel for the Respondent submitted that for the Appellant to succeed in an action under the tort of negligence he must satisfy the following conditions as laid down in the celebrated case ofDONOGHUE VS STEVENSON (1932) AC 562. The conditions are :
(a) That the Respondent owes a duty of care to the Appellant.
(b) That the duty of care was breached by the Respondent.
(c) That the Appellant suffered damages as a result of the breach thereof.

?It is further argued by learned counsel for the Respondent that the

Appellant failed to satisfy the above conditions either in his pleadings or by evidence led at trial. Learned counsel submitted that the Appellant failed to adduced credible evidence to establish negligence against the Respondent as the Appellants pleadings with Respect to the alledge negligence found at paragraph 7 of the Statement of Claim was effectively denied in paragraphs 3 of the Statement of Defence. It is further submitted by learned counsel for the Respondent that while there was no single particulars pleaded by the Appellant of the actions or in actions of the Respondent with respect to the allegation of negligence the Respondent on the other hand showed by credible evidence the necessary steps and precautionary measures the Respondent took in relation to the management of Appellant?s accounts. Learned counsel made particular reference to Exhibits ?D1? and ? D2 ? which are forms duly completed by the Appellant in person when the Appellant applied for the online banking services of the Respondent, wherein the Appellant provided the user identification as well as the password sent to him by the Respondent.

The Appellant according to learned counsel also provided the Email Address through which the user identification and password were sent to him. Learned counsel for the Respondent submitted that where the Appellant failed to discharge the burden of proof as in this case then his case must fall. On this and the other points canvassed learned counsel for Respondent cited the following cases ADELEKE VS IYANDA 2001 13 NWLR (PT 729) PAGE 1 AT 22-23; SALAWU VS UNION BANK OF NIGERIA PLC 1986 4 NWLR (PT 38) PAGE 701 AT 707; HASTON (NIG) LIMITED VS ACB PLC (2002) FWLR (PT 119) 147.

Learned counsel for Respondent argued in the alternative that if the Appellant?s case was for breach of contract, his failure to properly plead breach of contract and lead evidence in support thereof, meant he was not entitled to judgment at trial.
He cited Onyiaorah v. Onyiaorah (2008) FWLR (Pt.397) 154 @ 161 paras C-D.

He submitted that Appellant failed to establish by evidence the quantum of damages he was entitled to, as required by law, an omission that could not be cured by Counsel?s Written Address.

He cited the cases of Vassilev v. Pass Industry Ltd

(2000) 12 (Pt.681) 347 @ 355, paras E-F; Sanyaolu v. INEC (1999) 7 NWLR (Pt.612) 600 at 611, paras C-D.

In the reply brief, learned counsel for the Appellant argued that contrary to Respondent?s argument, the Appellant clearly narrated in the letters dated 2nd September, 2009 and 21st October, 2009, and pleaded in pars 13 and 15 respectively of the SOC the particulars of the unauthorised withdrawals which amounts to breach of contract.

RESOLUTION
There is no gainsaying the settled principle of law to the effect that the Court is bound to determine the case before it, as made out by the pleadings of the parties, particularly the Claimant?s or Plaintiff?s cause of action.
The Supreme Court in the case of A.G. OF ADAMAWA STATE & ORS v. A.G. OF THE FEDERATION (2014) LPELR-23221(SC) (P. 28, paras. C-F) Per PETER-ODILI, J.S.C, defined cause of action thus:
”The definition that has been followed on cause of action is that cause of action is the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. Thus, when an action is said to be

statute-barred, what it connotes is that the plaintiffs may have an actionable cause of action, but their recourse to judicial remedy is voided. No proceedings could be brought to prosecute the action. Muhammed v Military Administration, Plateau State (2001) 16 NWLR (Pt.740) 510 at 544 – 545; Egbe v Adefarasin (1985) 1 NWLR (Pt. 3) 1; Yusuf v C.C.B. Ltd (1994) 7 NWLR (Pt.359) 676.”
See: ATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR (2018) LPELR-44069(SC); BARBUS & CO. (NIG) LTD & ANOR v. OKAFOR-UDEJI (2018) LPELR-44501(SC); and AKINSETE & ORS. v. KILADEJO (2013) LPELR-20215(CA).
There is also no doubt that in order to determine what the cause or reason for which the party seeking relief has come to the Court, regard must be had to that party?s pleadings, particularly the statement of claim. It is from there that the Court will be properly guided as to what set of facts the party is presenting as grounding his claim, the applicable principles of law and the legal remedy the party is seeking.
In line with the above, the Apex Court in the case of OPIA v. INEC & ANOR (2014) LPELR-22185(SC) (P. 20, paras. D-F) Per GALADIMA, J.S.C, held thus:

The pertinent question at this juncture therefore, is whether the case of the Appellant was contract and not negliegence. A careful look at the facts of this appeal, especially the relevant processes as borne by the records reveal that the case of the Appellant at trial, was that of negligence. The cause of action was negligent handling of account which led to illegal deductions.

?I refer to paragraphs 7 ? 21 of the Statement of Claim found at pages 4 ? 5 of the Record of Appeal wherein the Appellant in very clear terms pleaded

facts which presents the tort of negligence as the fulcrum of his case in the lower Court.

While, it is true that the relationship between a Banker and its customer is predominantly one that is founded on contract founded on a debtor-creditor relationship. This does not however mean that every matter against a bank by its customer is alleging breach of contract.
See:MTN v. CHINEDU (2018) LPELR-44621(CA); AFRIBANK NIGERIA PLC. v. ANUEBUNWA (2011) LPELR-3635(CA); and MUOMAH v. ENTERPRISE BANK LTD (2015) LPELR-24832(CA).
Being mindful of the fact that this is an intermediate Court, I will consider the issue of whether the Appellant actually established breach of contract and by reason of same was entitled to the damages sought.
?Breach of contract arises in a situation wherein a party to an agreement, fails to perform his own obligations, thereby causing damages to the other party or parties to the agreement, who have taken certain steps on the basis of the agreement. In order to prove breach of contract, the party asserting must clearly show what actions or omissions the defaulting party is guilty of that constitutes the breach.

The summary of my findings on this issue is that the issue is resolved against the Appellant.

ISSUE TWO:
ASSUMING THERE WAS ONUS TO PROVE NEGLIGENCE (WITHOUT CONCEDING) ON THE APPELLANT, WHETHER THERE WAS NOT ENOUGH EVIDENCE TO HOLD THE RESPONDENT LIABLE IN NEGLIGENCE (GROUNDS 2 AND 5)
Learned counsel for the Appellant argued that the Respondent breached the duty of care owed the Appellant as his banker, by exhibiting lack of diligence as seen in its allowing 13 withdrawals in quick succession and allowing two more withdrawals even after the Appellant had notified the Respondent of the unauthorised withdrawals.

He relied on Donoghue v. Stevenson (1932) AC 562; Iyere v. BFFM Ltd (2008) 18 NWLR (Pt. 119) 300 @ 311 para 13; Nwosu v. Zenith Bank Plc (supra); Ogbiri v. NAOC Ltd (2010) 14 NWLR (Pt.1213) 208 @ 211.

Learned counsel also argued that Respondent kept inaccurate records in regards to the Appellant?s account and the evidence before the trial Court shows that the Appellant was not at fault for the unauthorised withdrawal, rather the Respondent?s negligence led to exposure of Appellant?s username and password to the persons who made

the illegal withdrawals.

Counsel then submitted that the denial of Appellant?s use of his money with the Respondent, amounting to N4,370,630.00 from 2009 till date constitutes damage to the Appellant and entitles him to damages under tort of negligence.

Learned counsel for the Appellant argued that the trial Court was wrong and wrongly evaluated the evidence before it when it found that the Appellant failed to prove that the sum of N4,370,630.00 was debited.

He sought to substantiate the above by first arguing that the Respondent admitted to the debiting of the sum in question, as seen in their reply in Exhibits C2 and 4, to Appellant?s letters Exhibits C1 and 3; and the fact that they didn?t expressly deny same in their statement of defence. Thus there was no need to prove a fact that was not in dispute.

?Counsel also argued that the fact that certain persons were arrested by the Police for illegal withdrawal of N4,370,630.00 from the Appellant?s account within the material time, coupled with the fact that the Respondent confirmed to Police the withdrawal of said sum from the Appellant?s account, points to the

fact that the Appellant had the sum in question in his account.

He submitted that the lower Court erred in law by placing a higher standard of proof on the Appellant on several occasions during trial, such as when it asked for documentary evidence to show that the Appellant travelled, whereas the parties did not join issues on travelling; where the Court demanded for evidence that the withdrawal limit was N100,000.00, yet rejecting the assertion as an afterthought; and there is no law that stipulates that statement of account is the only way to show withdrawals from a bank account.

On the other hand, learned counsel for the Respondent argued that the Appellant failed to establish negligence against the Respondent, as it failed to prove that the general duty of a Bank to its Customer extended to the particular transaction, failed to show that the Bank breached its duty of care and failed to establish by evidence, special damages he was entitled to.

He relied on: Donoghue v. Stevenson (supra); NBC v. Borgundu (1999) 2 NWLR (Pt.591) 408; and AP Plc v. Soyemi (2008) ALL FWLR (Pt. 397) 117 @ 129, paras C-E.

?Counsel also argued that the Court was

right to hold that Appellant failed to establish negligence, as the Appellant failed to establish the particulars of negligence, failed to show how the Respondent negligently handled its account and even failed to establish by evidence that the sum of N4,370,630.00 was debited from his account or that the monetary limit was N100,000.00 and exceeded by the Respondent by paying out N500,000.00. He contended that the failure to produce statement of account showing debit invokes the effect of Section 167(d) of the Evidence Act 2011. He submitted that on the contrary, the Respondent showed at trial that it diligently managed the Appellant?s account, especially with regards to the online banking package and jointly reported the issue of possible unauthorised debits to the police.

He relied on the following:
Consolidated Breweries v. Aisowienren (2002) FWLR (Pt. 116) 959 @ 986, paras G-H; FMF Ltd v. Ekpo (2004) 2 NWLR (Pt.856) 100; FBN Plc v. ACB Ltd (2006) 1 NWLR Pt. 962,pg 438 at pages 481-482, paras G-H; UTB (NIG) LTD v. Ozoemena (2007) 3 NWLR Pt. 1022, 488; Mainstreet Bank Plc v. Dizengoff (W.A) (Nig) Ltd (2015) All FWLR (Pt.781) page 1443 at 1467

paras E-F; Macron Services (Nig) Ltd v. Afro Continental (1995) 2 NWLR (Pt.376) 201 at 212 paras B-C; Agbu v. Civil Service Commission Nasarawa State (2011) 1 NWLR (Pt.1229) 544 at 556,paras D-G; Muniyas (Nig) Ltd v. Ashafa (2011) 6 NWLR (Pt. 1243) 85 @ 105; Onowhosa v. Odiuzou (1999) 1 NWLR (Pt.586) page 173 at 183 paras A-B; Dibiamaka v. Osakwe (1989) 1 NWLR (Pt.107) at 113 and 114; Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 at 611; Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) 1 @ 22_23 paras A-C; Agbi v. Audu Ogbeh (2006) 11 NWLR (Pt.990) page 65 @ 116,par E; Salawu v. UBN Plc (1986) 4 NWLR (Pt.38) page 701 at 707; Haston (Nig) Ltd v. ACB Plc (2002) FWLR (Pt.119) 147.

Counsel argued that the issue of damages ought not to arise because the Appellant failed to establish negligence and he is not in anyway entitled to same, as he did not itemise and establish his entitlement to special damages as required by law.

He cited the cases of Ovia South Local Government v. Adeniji (2016) ALL FWLR (Pt.834) page 26 @ 47-48; Khawam v. Akinkugbe (2002) FWLR (Pt.109) 1574; and FRSC & Anor v. Gideon (2015) ALL FWLR (Pt.803) page 1778 at page 1809 para E.<br< p=””

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Appellant?s counsel by way of reply submitted that the erroneous position taken by the trial Court that the debits in question could only be established by Bank statement ought to be reviewed by this Court as bank entries are not the only means of establishing banking transactions/debts.
He relied on:
Oguma Associated Companies (Nig) Ltd v. IBWA Ltd (1988) 1 NSCC 395 @ 398; Calabar Central Cooperative Thrift & Credit Society v. Ekpo (supra); and Ogbechi v. Onochie (1986) 2 FWLR (Pt.23) 484 (SC).

RESOLUTION
Negligence is the tort that protects a person from careless action from another, that can injure or harm him. The law places a duty of care on various persons in various circumstances, where such a person breaches the duty of care placed upon him by law and that breach resulted in injury to the person to whom such duty is owed, the bearer of the duty is said to have been negligent and will be liable in damages to repair the injury caused. The Supreme Court in the case of HAMZA V. KURE (2010) LPELR-1351(SC) (P. 14, paras. E-G) Per Mohammad J.S.C., defined negligence thus:
“As far back as 1856, Lord Alderson B., defined

negligence to be the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. See: BLYTH V. BIRMINGHAM WATERWORKS COMPANY. [1856] 11 Exch. 781 at 784. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.”
See: CHUKWUMA & ORS v. AWOH (2018) LPELR-44830(CA); and MTN v. CHINEDU (2018) LPELR-44621(CA).
Now, there are conditions that must be fulfilled in order for a litigant who is claiming that he has suffered injury from the breach of duty of care owed him. These conditions are mainly that the Claimant must clearly particularise what constitutes the negligent act complained of and how it led to injury on the part of the Claimant.
This Court gave a wholesome analysis of the foregoing in the case of P.W. (NIG.) LTD v. MANSEL MOTORS LTD & ANOR (2017) LPELR-43390(CA) (Pp. 21-22, Paras. B-C) Per ONYEMENAM, J.C.A., thus:
“It has been stated consistently in judicial pronouncements by

both this Court and the Apex Court that in an action for negligence, the plaintiff will not succeed by merely making allegations of negligence against the defendant. The plaintiff must as of necessity plead and give full particulars of the items of the negligence relied on in evidence. So the plaintiff has the duty to itemize the particulars of negligence and bring out the facts which exposes the fault or liability of the Defendant. DIAMOND BANK LTD. V. PARTNERSHIP INVESTMENT CO. LTD. & ANOR. (supra); UNIVERSAL TRUST BANK OF NIGERIA V. FIDELLA OZOEMENA (supra); KOYA v. UNITED BANK FOR AFRICA LTD (SUPRA); MTN NIGERIA COMMUNICATIONS LTD V. MR. GANIYU SADIKU (supra). The pleading of the Respondents at the trial Court was that the Appellant negligently failed to place road cautions on the road which resulted to the accident and nothing more. The Respondents did not plead details that would have shown that but for the absence of the caution signs the accident would not have occurred. The Respondents for instance ought to have pleaded; the nature of the road which made the accident inevitable without prior road caution signs. It was also necessary for the

Respondents to plead that the absence of the diversion signs made the road very dangerous. The Respondents importantly, ought to have stated the speed at which the PW4 drove to show that on his part he exercised great caution so much so that the accident would not have occurred but for the absence of the road caution signs to warn him of an impending danger.?

amount on the cheque, the appellant had breached the fiduciary relationship between them, to which the respondent was entitled to compensation by way of damages.”
See: FCMB v. ACTION ALLIANCE (2018) LPELR-44445(CA); and SKYE BANK v. OLALEYE (2018) LPELR-45568(CA).

The fact that the duty generally exists however does not mean that it was breached in this instance. The online banking platform which the Appellant is alleging to be the means by which unauthorised withdrawals were made, is not under the sole control of the bank. As a matter of fact, as established at trial, it is the Appellant who has the password that can access his account through the online platform. It therefore behoves on the Appellant to clearly show how the Bank was negligently responsible for the withdrawal of certain sums from his account through the said online platform. The Appellant failed to do this.

With regards to the issue of whether the sum of N4,370,630.00 was proved, the first port of call is what was the reason why the trial Court find that it wasn?t proved? The answer is found at page 178 of the records, and revolves around the fact that the attempt of the

Appellant to prove his assertion amounted to nothing more than mere speculation. The holding of the learned trial Judge is in my view unimpeachable.

The learned trial Judge is not positing that the Bank Statement is the only means of proving Appellant?s assertion, neither did he place a higher standard of proof on the Appellant, rather the holding of the Judge is in line with settled principle of law, as he was not satisfied with the proof proffered by the Appellant and simply mentioned a piece of evidence capable of clearing any doubt and which the Appellant for no just cause withheld. Section 167(d) of the Evidence Act indeed provides for instances where a party withholding evidence in a case would be presumed to hold such evidence because if it is brought to light, the evidence would operate against the interest of the person withholding it. The Supreme Court clearly stated this position of the law in the case of SHODIYA v. STATE (2013) LPELR-20717(SC) Per ALAGOA, J.S.C, thus:
“Section 167 (d) of the Evidence Act 2011 provides that “the Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to

the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case and in particular the Court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it.”
See:UMAR v. STATE (2014) LPELR-23190(SC); OKPOKO COMMUNITY BANK LTD. & ANOR. v. IGWE (2012) LPELR-19943(CA); and NSIMA v. NBC (2014) LPELR-22542(CA).

Furthermore, a party, especially the one who bears the legal burden of proof in a matter must endeavor to produce the best form of evidence in his bid to establish the existence or non existence of any given set of facts before a Court of law. Where such a party fails to so do, and the Court is not convinced by the evidence presented on valid grounds, the party has himself to blame.
As rightly stated by the Apex Court in ABUBAKAR & ANOR v JOSEPH & ANOR 2008 LPELR ? 48 (SC) PER TOBI JSC,
?The burden of proof of negligence falls on the Plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars

of negligence pleaded will be fatal to the case of the Plaintiff.?
In this case as found by the learned trial Judge and shown in the records the particulars of negligence was not even pleaded by the Plaintiff in proof of his case.
See: PURIFICATION TECHNIQUE NIG. LTD. & ORS. V. JUBRIL & ORS. (2012) LPELR-9727(SC); OKPOKAM v. TREASURE GALLERY LTD & ANOR (2017) LPELR-42809(CA); PDP & ANOR v. INEC & ORS (2008) LPELR-8597(CA).

I do not agree with the submissions of Appellant?s counsel that the Respondent admitted that the sum was debited. This issue is also resolved against the Appellant. The implication of the above, is that this appeal is devoid of merit and is consequently dismissed.
The judgment of the lower Court delivered on 8th April, 2016 is affirmed.
Parties to bear their respective costs.

MOHAMMED LAWAL GARBA, J.C.A.: I read in draft the lead judgment written by my learned brother Jamilu Yammama Tukur, JCA in this appeal and agree that the appeal is wanting in merit.
It is dismissed by me too in terms of the lead Judgement.

TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the leading judgment rendered by my learned brother, JAMILU YAMMAMA TUKUR, JCA., with whom, I am in agreement that this appeal is devoid of merits and consequently it stands dismissed.

I affirm the judgment delivered by D.T. Okuwobi, J., of the Lagos State High Court, in re Suit No: LD/1697/2010, on 8th April, 2016.
?Each side shall bear own costs of the appeal.