FIJABI v. FBN (2021)

FIJABI v. FBN

(2021)LCN/15117(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, March 19, 2021

CA/IB/496/2014

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

MRS. ABIMBOLA FIJABI (NEE KAYODE) [SUBSTITUTED FOR AKINYELE TIMOTHY KAYODE (DECEASED)] APPELANT(S)

And

FIRST BANK OF NIGERIA PLC RESPONDENT(S)

RATIO

ATTITUDE OF THE COURT REGARDING UNCLAIMED RELIEF(S)

In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40: “It is elementary law that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…” See also DUMEZ NIGERIA LTD vs. NWAKHOBA (2008) LEPLR (965) 1 at 26 and AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

MEANING AND EFFECT OF A CLAIM

In defining the meaning of “claim” in OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 or (2009) LPELR (2816) 1 at 55, Tobi, JSC stated thus: “A claim, in our adjectival law, originates an action. It is the pivot or the cynosure of the case. It sets out the relief or reliefs sought by the plaintiff. A plaintiff is bound by his claim and must not deviate from it willy-nilly. A plaintiff cannot in law present a case different from his claim as the law regards such an unsolicited procedure completely outside the law.” Just as it is elementary that the claimant cannot present a case different from his claim, so also can a Court not adjudicate between parties on the basis of a claim not formulated by them. In OSUJI vs. EKEOCHA (supra) at page 44, Adekeye, JSC stated: “The position of the law is clear that a Court of law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

POSITION OF THE LAW ON THE DUTY OF THE TRIAL JUDGE; CIRCUMSTANCE WHERE AN APPELLATE COURT WILL INTERVENE WITH THE FINDINGS OF FACTS MADE BY THE TRIAL COURT

The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. It is rudimentary law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48. The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. We will find out in a trice if the Appellant has been able to dislodge the presumption that the conclusion of the lower Court on the facts is correct. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

POSITION OF THE LAW ON THE DUTY OF A BANKER TO EXERCISE REASONABLE CARE AND SKILL IN REGARD TO ITS CUSTOMER’S AFFAIRS

Without a doubt, a banker has the duty to exercise reasonable care and skill in regard to its customer’s affairs. The law is that 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 contracts with its customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the customer and includes interpreting, ascertaining and acting in accordance with the instruction of the customer. The relationship between the banker and customer is contractual and the relationship, in the absence of an express agreement between the parties to the contrary, is implied from the course of business between them. In circumstances where it has been alleged that a bank was negligent, as in this case, the circumstances must be such that establishes that the bank was not prudent or did not act in a satisfactory manner, in which case the tort of negligence will arise; since a prudent banker will never ignore the instruction given by the customer. See generally AGBANELO vs. UNION BANK (2000) LPELR (234) 1 at 17-18, BANK OF THE NORTH vs. YAU (2001) LPELR (746) 1, ALLIED BANK vs. AKUBUEZE (1997) LPELR (429) 1 at 36, DIAMOND BANK vs. PARTNERSHIP INVESTMENT CO. LTD (2009) LPELR (939) 1 at 22 and ECOBANK vs. EKPERIKPE (2013) LPELR (20327) 1 at 43. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

ATTITUDE OF THE APPELLATE WHERE THERE HAS BEEN A PROPER APPRAISAL OF EVIDENCE BY A TRIAL COURT

It is hornbook law that for the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. In the words of Idigbe, JSC in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47: “It is now settled that if there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.” At the risk of being prolix, I restate that an appellate Court will not substitute its own views with those of the trial Court, when as in the instant appeal, the trial Court has unquestionably evaluated the evidence and justifiably appraised the facts. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19-20. The evaluation of evidence and the findings made by the lower Court were definitely not perverse. Therefore, there is absolutely no basis on which an appellate Court can intervene. From all I have said thus far, the inexorable conclusion is that the Appellant has failed to displace the presumption that the conclusions of the lower Court on the facts are correct in order to upset the judgment on the facts: EHOLOR vs. OSAYANDE (supra) at 43 and ONI vs. JOHNSON (supra) at 11-13. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

HOW THE DECISION OF THE COURT SHOULD BE READ

Now, it is abecedarian law that the decision of a Court is not to be read in convenient instalments. The decision must be read as a whole in order to appreciate the ratio decidendi in the case. See ADEBAYO vs. A-G OGUN STATE (2008) 2 SCNJ 352 at 366-367 or (2008) 7 NWLR (PT 1185) 201 at 221, ADEGBUYI vs. APC (2015) 2 NWLR (PT 1442) 1 at 24-25, BELLO vs. AWOLIYI (2018) LPELR (46535) 1, AMBER RESOURCE (NIG. LTD) vs. CENTURY ENERGY SERVICES LTD (2018) LPELR (43671) 1 at 12-13 and LAWAN vs. FRN (2020) LPELR (51085) 1 at 81-83. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

POSITION OF THE LAW REGARDING THE DUTY OF THE TRIAL COURT TO ASSESS DAMAGES IT WOULD HAVE AWARDED IF THE ACTION HAD SUCCEEDED

In OTTI vs. EXCEL-C MEDICAL CENTRE LTD (2019) LPELR (47699) 1 at 56-57, I was privileged to state the legal position in the following words: “The legal position in this regard is settled beyond peradventure. It is that in order to avoid undue prolongation of litigation and to prevent unnecessary expense, the trial Court should always, as a matter of duty assess the damages it would have awarded, even if the decision was against the party claiming damages: INTERNATIONAL TEXTILE IND. NIG. LTD vs. ADEREMI (1999) 8 NWLR (PT 614) 268 at 301-302, YAKASSAI vs. MESSRS INCAR MOTORS LTD (1975) 5 SC 107 at 115-116 and C & C CONSTRUCTION CO. LTD vs. OKHAI (2003) LPELR (821) 1 at 31-32. Let me hasten to state that the failure by the trial Court to assess the damages it would have awarded if the action had succeeded is not fatal. The law remains that where a trial Court has assessed damages, then an appellate Court can either agree with the assessment or in appropriate cases vary the amount. Where the trial Court did not make any assessment, like in this case, an appellate Court can make the assessment itself if the materials on which it can do so are available on the record. See OVERSEAS CONSTRUCTION CO. (NIG) LTD vs. CREEK ENTS (NIG) LTD (1985) LPELR (2835) 1 at 23 and MIDLAND GALVANIZING PRODUCTS LTD vs. COMET SHIPPING AGENCIES NIG LTD (2014) LPELR (24019) 1 at 24-25.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This action was instituted by Akinyele Timothy Kayode, a customer of the Respondent Bank. Unfortunately, before the matter went to trial, the said Akinyele Timothy Kayode died and by an Order of the lower Court made on 25th September, 2012, he was substituted with his daughter, the Appellant on Record. The claim at the lower Court was for the following reliefs:-
(i) AN ORDER directing the Defendant to pay to the plaintiff the sum of N3,622,140.89 which sum was standing to the credit of the Plaintiff as at 17th January, 2005 in his fixed deposit account kept with the Defendant at its Bank Road, Dugbe, Ibadan Branch.
(ii) Interest at 12.0% quarterly on the said sum from 17th January, 2005 until judgment is delivered in this suit.
(iii) 10% interest per annum on the said sum until the whole judgment sum is liquidated.
(iv) N50 million general damages.
(v) AN ORDER directing the Defendant to release the bank Statement of Account No. 1802010002911 kept by the Plaintiff at the Defendant’s Bank Road, Dugbe, Ibadan Branch, covering the period between 1st January, 2006, and 31st October, 2008.

The matter was subjected to a full-dressed trial based on the pleadings filed and exchanged by the parties. At the trial, testimonial and documentary evidence was adduced and in its judgment; which was delivered on 3rd October, 2013, the lower Court dismissed the Appellant’s claims in its entirety. The Appellant, piqued by the decision of the lower Court appealed against the said judgment by Notice of Appeal filed on 18th December, 2013. The chafed judgment of the lower Court is at pages 174-209 of the Records, while the Notice of Appeal is at pages 210-215 of the Records.

Briefly, the apercu of the Appellant’s case is that Akinyele Timothy Kayode (the original Claimant) was a customer of the Respondent at its Bank Road, Dugbe, Ibadan Branch. The original Claimant maintained a current account and a fixed deposit account. The grouch of the original Claimant and on the basis of which the cause of action was ventilated is that without instructions from him in that regard, the Respondent terminated his fixed deposit account, transferred the funds in the same to his current account and allowed withdrawals to be made from

the said current account, when the signature on the cheques with which the withdrawals were made was different from the mandate of the original Claimant. Contending that the Respondent was negligent by failing to protect the funds in the accounts of the original Claimant kept with them, the action, the provenance of this appeal, was instituted claiming the reliefs which I have already set out.

In prosecution of the appeal, the Records of Appeal were compiled and transmitted on 10th October, 2014, but deemed as properly transmitted on 8th April, 2019. The briefs of argument which were filed and on the basis of which the appeal was argued are as follows:-
1. Appellant’s Brief of Argument filed on 19th November, 2014.
2. Respondent’s Brief of Argument filed on 19th December, 2014.

Appellant’s Reply Brief filed on 16th February, 2015.All the briefs were deemed as properly filed on 8th April, 2019. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant formulated three issues for determination in the appeal, namely:-
(i) Whether the learned trial Judge was right in holding that “for Banker to be liable there must be evidence of carelessness in the payment or total neglect of ordinary business precautions by the Defendant” without critically examining the content of exhibits before the lower Court and the testimony of CW1, DW1, DW2 and DW3 that has clearly established case of gross negligence by the Respondent.
(ii) Whether the learned trial Judge who “has awarded a sum of N4 Million Naira which includes the amount on Exhibit ‘G’ plus inconvenience allowance can also simultaneously held [sic] in conclusion that he find [sic] no merit in the Claimant’s claim” and dismissed it in its entirety.
(iii) Whether the judgment of the learned trial Judge was not based on unpleaded facts, extraneous, speculative or prejudicial considerations without any evidence and wrong conclusion in its evaluation of the evidence of witnesses and exhibits presented before it resulting in substantial miscarriage of justice against the Appellant.

The Respondent equally distilled three issues for determination as follows:
(i) Whether the appellant proved the issue of forged signature and purported failure of the respondent to carry out the instruction of the deceased claimant.
(ii) Whether the appellant proved the issue of negligence and failure to exercise duty of care by the respondent.
(iii) Whether the trial Judge in dismissing the claim of the appellant as claimant delivered a judgement that was lacking in merit and failed to uphold justice.

It is lucent from the issues distilled for determination that the gravamen of the complaint in this appeal centres around the evaluation of the evidence adduced and ascription of probative value thereto by the lower Court. For good measure, the Appellant has further contended that the lower Court in the same judgment awarded the sum of N4 Million in favour of the Appellant and thereafter dismissed the claim in its entirety. Given the main thrust of the disceptation arising from the issues raised by the parties, I will review the submissions of learned counsel as a cohesive unit and then resolve the appeal en bloc.

APPELLANT’S SUBMISSIONS
The Appellant argued her issue numbers one and three together. It was submitted that the Respondent, as banker was negligent and acted in bad faith by permitting an unknown and fictitious person to fraudulently withdraw money from the original Claimant’s current account and also negligently, without the knowledge and consent of the original Claimant, transferred the amount in the fixed deposit account of the original Claimant, based on a letter, Exhibit F2, that bore a forged signature and wrong residential address of the original Claimant.

It was posited that the banker/customer relationship is contractual and that the banker owes its customer a duty of care vide HASTON (NIG) LTD vs. ACB PLC (2002) 12 NWLR (PT 732) 623 at 646. The bank, it was stated, must exercise reasonable care and skill in carrying out its duty, which duty extends over the whole range of banking business and it must always act according to the customer’s instruction. The case of UBA vs. FOLARIN (2003) 7 NWLR (PT 818) 18 at 44 was referred to.

It was contended that the Appellant proved that the signatures on the documents and instructions honoured by the Respondent were forged and different from the signature on the

current account mandate card of the original Claimant. It was opined that the Respondent was negligent in the manner of its dealings with the fraudster who defrauded the original Claimant and that the Respondent was grossly negligent and in collusion when it honoured the forged cheques drawn on the original Claimant’s account in a manner that was inconsistent with the previous pattern of operations on the account. It was stated that by Section 24 of the Bills of Exchange Act, 1882, a forged or unauthorized cheque is inoperative. The cases of UNITED NIGERIA INSURANCE CO. vs. MUSLIM BANK (WEST AFRICA) LTD (1972) 1 ALL NLR (PT 1) 314 at 314-315 and NDOMA-EGBA vs. ACB (2005) 14 NWLR (PT 944) 79 at 84-88 were relied upon.

The Appellant maintained that the Respondent failed to act normally and in the ordinary course of its business and banking practice when it negligently transferred money from the fixed deposit account of the original Claimant to his current account, in a manner smacking of collusion, which made it possible for the fraud to be committed. The Respondent, it was asserted, did not make proper inquiries and was not cautious. The case of

KAREEM vs. UBN LTD (1996) 5 NWLR (PT 451) 634 at 651 was cited in support. The Appellant doubled down on her contention that the Respondent ought not to have debited the account of the original Claimant with the value of the forged cheque it honoured. The case of B. O. N. LTD vs. LCRI (1995) 6 NWLR (PT 403) 607 at 615 was called in aid.

The Appellant’s submission on the third issue she crafted for determination is that since the lower Court entered judgment for the Appellant for the sum of N4 million at page 208 lines 24-29 of the Records, it lacked the jurisdiction to set aside the said award when at page 209 lines 7-8 of the Records, it dismissed the claim in its entirety, thereby occasioning a miscarriage of justice.

It was posited that the judgment of a Court of trial will only be upheld on appeal if the conclusion is correct and not necessarily if the reason for the conclusion is correct vide OTUONYE vs. UGWUOZOR (2001) FWLR (PT 52) 2118 at 2122 ratio 4. It was conclusively submitted that since the judgment of the lower Court had occasioned a miscarriage of justice, it ought to be set aside in order to prevent injustice. The case of OGOLO vs. OGOLO (2006) 2 SC (PT 1) 61 at 66 was relied upon.

RESPONDENT’S SUBMISSIONS
The Respondent submits that the Appellant imputed forgery in the transactions between the Respondent and the original Claimant and that where fraud and forgery is in issue, as in this case, it must be proved beyond reasonable doubt since it borders on crime. The cases of IKOKU vs. OLI (1962) 1 ALL NLR (VOL.1) 194 at 192 [sic], ADELAJA vs. ALADE (1999) 6 NWLR (PT 608) 544 at 557, OMOBORIOWO vs. AJASIN (1984) 1 SC 206 or (1984) SCNLR 108, AGIRI vs. OGUNDELE (2005) ALL FWLR (PT 250) 81 at 99-100 among other cases were referred to. It was contended that in order for falsification of a document to be proved, the genuine document would be produced in order to establish that the document alleged to be falsified is indeed falsified, which the Appellant’s witness did not do. The case of ONYE vs. KEMA (1999) 4 NWLR (PT 598) 198 was cited in support. It was in consequence asserted that the Appellant did not prove forgery and fraud beyond reasonable doubt.

The Respondent argued that it is in evidence that the original Claimant came to the bank and changed his signature mandate, and that this was not denied or controverted. It was stated that a vague and nebulous averment of forgery does not suffice since the essential facts of who committed the forgery and the documents forged must be pleaded. The cases of AINA vs. JINADU (1992) 4 NWLR (PT 233) 91 at 106, USENFOWOKAN vs. IDOWU (1969) ALL NLR 125 and GEORGE vs. DOMINION FLOUR MILLS (1963) 1 SC NLR 117 were called in aid.

It was maintained that the Appellant did not plead and strictly prove fraud beyond reasonable doubt vide FABUNMI vs. AGBE (1985) 1 NWLR (PT 2) 290, OJIBAH vs. OJIBAH (1991) 5 NWLR (PT 191) 296, OGBOLE vs. LAWANI (2003) FWLR (PT 187) 844 at 859 and ONWUGBUFOR vs. OKOYE (1996) 1 SCNJ 1. It was stated that the original Claimant did not report the loss of any cheque leaves or cheque book to the bank and that the bank cannot control the original Claimant on how he operates his account, when there has been nothing to put the bank on notice to guard or watch the operations of the account.

Arguing the second issue it distilled, the Respondent submits that it was not negligent in handling the mandate on the account of the original Claimant and that

the duty of care which it owed to the original Claimant that was breached was not proved. The cases of UTB vs. OZOEMENA (2007) 2 SCM 170 and DIAMOND BANK vs. PARTNERSHIP INVEST (2009) 12 SCM (PT 2) at page 13 were referred to. It was stated that the only genuine and authentic authorization of a fixed deposit account is the receipt issued for the deposit and that when the original Claimant wrote to instruct the Respondent to terminate the fixed deposit and pay the proceeds into his current account, he submitted the said receipt to the bank. It was contended that if the original Claimant had been careful and diligent with the fixed deposit receipt in his custody, a third party would not have had access to the receipt to submit it to the bank. It was maintained that the cheques drawn on the account of the original Claimant were only honoured after the same had been confirmed by calling the original Claimant on his GSM phone for confirmation.

The quiddity of the Respondent’s submission on its issue number three is that the judgment of the lower Court was confined to the issues raised and reliefs claimed by the parties. The cases of UCHENDU vs. OGBONI

(1999) 4 SCNJ 64 and IKE vs. UGBOAJA [no year stated] 7 SCNJ 402 were relied upon. It was posited that the Court and the parties are bound by the pleadings, and the Court is to adjudicate on the specific dispute raised in the pleadings. The cases of OZUEH vs. EZEWEPUTA (2005) 4 NWLR (PT 915) 221 and ODJEVWEDJE vs. ECHANOKPE (1987) 1 NWLR (PT 52) 633 were cited in support. It was conclusively stated that the judgment of the lower Court was not contradictory but decisive and unambiguous.

APPELLANT’S REPLY ON LAW
The conspectus of the Appellant’s submission in the Reply Brief is that the Respondent misconceived the standard of proof as there was no burden to prove any facts beyond reasonable doubt. The cases relied upon by the Respondent were said not to be relevant as the Appellant’s contention is that the Respondent was negligent and did not follow the original Claimant’s mandate vide NDOMA-EGBA vs. ACB (supra). It was stated that the mandate card, Exhibit F1, and the cheque issued to the CW1, Exhibit D2, were genuine documents which establish that the cheques and documents honoured by the Respondent were forged.

The Appellant maintained that the original Claimant did not have a GSM phone and that he only used a NITEL landline. It was conclusively submitted that cases are decided on evidence and not on pleadings and that where a Court has decided an issue, it cannot reopen the said issue again. The cases of SAVANNAH BANK vs. PAN-ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (1987) 2 QLRN 178 at 180, UBA vs. EKENE DILI CHUKWU NIG LTD (1999) 12 NWLR (PT 629) 128 at 131-132 and MINISTRY OF LAGOS AFFAIRS, MINES AND POWER vs. AKIN-OLUGBADE (1974) 1 ALL NLR (PT II) 226 at 235 were called in aid.

RESOLUTION
I have already rehashed a bit of the facts of the matter. It was upon the original Claimant going to the bank to request for information as to the position of his account that he was given the bank balance on the account which he felt was a lot less than what the balance should be. The evidence discloses that the bank had acted on written instructions from the original Claimant accompanied by the fixed deposit receipt, directing it to terminate the fixed deposit and pay the proceeds into the current account. Furthermore, the bank had honoured and paid several cheques

issued by the original Claimant in favour of someone he identified as his son, and who he had also given a reference letter to open an account with the Respondent, stating him in the reference letter: “HE IS MY SON. TRUSTED TO BE GUARANTEED.” The original Claimant denied having issued any of the documents or cheques and further denied knowledge of the person said to be his son. It was upon the failure by the Respondent to return the moneys which had been paid out from the original Claimant’s account that this action was instituted claiming the reliefs, which at the risk of prolixity, I will reproduce again thus:
“(i) AN ORDER directing the Defendant to pay to the Plaintiff the sum of N3,622,140.89 which sum was standing to the credit of the Plaintiff as at 17th January, 2005 in his fixed deposit account kept with the Defendant at its Bank Road, Dugbe, Ibadan Branch.
(ii) Interest at 12.0% quarterly on the said sum from 17th January, 2005 until judgment is delivered in this suit.
(iii) 10% interest per annum on the said sum until the whole judgment sum is liquidated.
(iv) N50 million general damages

(v) AN ORDER directing the Defendant to release the bank Statement of Account No. 1802010002911 kept by the Plaintiff at the Defendant’s Bank Road, Dugbe, Ibadan Branch, covering the period between 1st January, 2006 and 31 October, 2008.

It is limpid from the reliefs claimed that the paregoric desired by the original Claimant, and by extension the Appellant, is in respect of the funds in the fixed deposit account of the original Claimant. The Appellant having so formulated and claimed the desired paregoric as the relief from the Court, the Court, the Appellant and all the parties became bound by the relief as framed as it is not the duty of the Court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
“It is elementary law that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind

this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…”
See also DUMEZ NIGERIA LTD vs. NWAKHOBA (2008) LEPLR (965) 1 at 26 and AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92.
The original Claimant and the Appellant who wore the shoes identified precisely where it pinched and consequently framed the relief in that regard. As circumscribed by the parameters of the relief as framed and claimed, it was strictly in respect of the transactions and dealings on the fixed deposit account. In defining the meaning of “claim” in OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 or (2009) LPELR (2816) 1 at 55, Tobi, JSC stated thus:
“A claim, in our adjectival law, originates an action. It is the pivot or the cynosure of the case. It sets out the relief or reliefs sought by the plaintiff. A plaintiff is bound by his claim and must not deviate from it willy-nilly. A plaintiff cannot in law present a case different from his claim as the law regards such an unsolicited procedure completely outside the law.”

Just as it is elementary that the claimant cannot present a case different from his claim, so also can a Court not adjudicate between parties on the basis of a claim not formulated by them. In OSUJI vs. EKEOCHA (supra) at page 44, Adekeye, JSC stated:
“The position of the law is clear that a Court of law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.”
Accordingly, in the diacritical circumstances of this matter, I will, in the resolution of this matter, be guided and governed by the reliefs claimed in the action.

The Respondent proffered submissions that the Appellant made allegations of fraud and forgery and that the same was not established beyond reasonable doubt. The Appellant has however contended that the action is founded on negligence and does not involve the criminal standard of proof beyond reasonable doubt. I have insightfully considered the averments in the Amended Statement of Claim at pages 80-85 of

the Records and I am not in any doubt whatsoever that on the state of the pleadings the Appellant was not obligated to prove the allegations therein beyond reasonable doubt. It is effulgent that the action was founded upon negligence based on the contention that the Respondent was grossly negligent in the management of the accounts of the original Claimant by terminating the fixed deposit account without an instruction to that effect; and also by allowing withdrawals from the current account without confirming from the original Claimant especially as the signatures on the cheques were different from the specimen signatures on the mandate card; and without properly identifying the drawees of the cheques.

To underscore the fact that the action did not involve allegations requiring proof beyond reasonable doubt, by Order 15 Rule 3 of the High Court of Oyo State (Civil Procedure) Rules, where a party relies on fraud, particulars thereof shall be stated in the pleadings. The Appellant did not state any particulars of fraud. The Appellant however pleaded particulars of negligence in paragraph 27 of the Amended Statement of Claim (see pages 83-84 of the

Records), thereby clearly showing that the action was founded on negligence and not on fraud and forgery as contended by the Respondent. Be that as it may, it is instructive that in its judgment the lower Court rightly considered and resolved the action based on the preponderance of evidence and balance of probability (see page 191 of the Records). The Respondent’s contention on the Appellant not having adduced evidence rising to the level of proof beyond reasonable doubt is accordingly otiose and non-sequitur.

I stated at the outset that at the pith of the disparate contentions of learned counsel is the evaluation of evidence and ascription of probative value thereto by the lower Court. The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. It is rudimentary law that where a trial Court unquestionably

evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48. The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the

judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. We will find out in a trice if the Appellant has been able to dislodge the presumption that the conclusion of the lower Court on the facts is correct.

Let me iterate that the relationship between the Respondent and the original Claimant was a banker/customer relationship. Without a doubt, a banker has the duty to exercise reasonable care and skill in regard to its customer’s affairs. The law is that 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 contracts with its customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the customer and includes interpreting, ascertaining and acting in accordance with the instruction of the customer. The relationship between the banker and customer is contractual and the relationship, in the absence of an express agreement between the parties to the contrary, is

implied from the course of business between them. In circumstances where it has been alleged that a bank was negligent, as in this case, the circumstances must be such that establishes that the bank was not prudent or did not act in a satisfactory manner, in which case the tort of negligence will arise; since a prudent banker will never ignore the instruction given by the customer. See generally AGBANELO vs. UNION BANK (2000) LPELR (234) 1 at 17-18, BANK OF THE NORTH vs. YAU (2001) LPELR (746) 1, ALLIED BANK vs. AKUBUEZE (1997) LPELR (429) 1 at 36, DIAMOND BANK vs. PARTNERSHIP INVESTMENT CO. LTD (2009) LPELR (939) 1 at 22 and ECOBANK vs. EKPERIKPE (2013) LPELR (20327) 1 at 43.

Now, it has to be remembered that the bastion of the claim before the lower Court was the original Claimant’s fixed deposit account with the Respondent which he claimed that he never gave instructions for the same to be terminated. In evaluating the evidence and ascribing probative value thereto in this regard, the lower Court found and held as follows at pages 198-200 of the Records:
“After a dispassionate examination of the documents, a consideration of the

evidence of CW1, DW1, 2 and 3, and placing both versions on an imaginary scale, I give due weight and credence and more probability to the evidence and the version or case of the defendant. Why do I come to that conclusion?
(1) The evidence of CW1 on whether the deceased claimant did not give instruction to terminate his fixed deposit and that Exhibit F2, the purported letter is forged carries no weight or evinces a feeling of probability. He is not the doer of the act and evidence that can seriously evinced [sic] the notion of belief or disbelief is the evidence which is direct and unequivocal on the act or the instruction given. An instruction which is said to be given by a letter, the proper document to establish the act is the production of the letter, if the doer or giver of the instruction is dead.
The document will then be considered within contemporaneous fact and circumstances. The letter of 1-08-2007 speaks for itself Exhibit F. Let me quote the content.
‘Dear Sir,
Re: my Fix-Deposit No 1A/N 011627.
The attached Deposit card is the subject matter.
My not have shown up with it as at the due time is not unconnected

with my health condition since early last year. I have been sick then be off and on between Ibadan and Oyo Town where my son is taking care of me medically.
Kindly pay the fix-deposit with the acquired interest into my current account with you at Dugbe immediately please on receipt of this my letter.
My account number is 1802010002911.
Thanks for your usual cooperation.’
Now there is evidence of banking practice in respect of termination of fixed deposit account the defendant pleadings in paragraphs 3 and 4 of the Statement of Defence. The DW2 stated that when an amount is fixed a receipt is issued by the bank and the receipt being confidential is normally kept by the owner of the fixed deposit. If however, the owner intends to increase or reduce the amount, surrenders the receipt in his custody to the bank, who now issues a new receipt to show the present amount. Thus, an inference is drawn that if no new receipt is issued the position in the fixed account is shown by a current deposit certificate; and if such certificate is delivered then there is termination of the fixed account. The Defendant tendered Exhibit G. It is a fixed deposit

receipt dated 25-08-2006. It was for 3 months. The amount on it was N3,933,000.00.
In the letter Exhibit F2, the instruction as given by the deceased claimant, he referred to the deposit receipt card which he said he attached to the letter. It is Exhibit G. Apart from the instruction on Exhibit F2, the following words are indorsed at the back of Exhibit G.
‘Pay into my current account number 10802010002911 with the acquired (sic) interest please’.
Signed
Chief T. A. Kayode
The endorsement is dated 1-08-2007 which is the same date as the date Exhibit F2 was written.
As to whether the letter was forged as stated by the CW1, there was no denial of the endorsement on Exhibit G, if there is, I hold there [sic] the denial holds no water. Furthermore, I find to (no) dissimilarities in the signature on the letter of instruction Exhibit F2 and Exhibit G, the returned fixed deposit receipt. The allegation as to the two being forged is not proved to my satisfaction.
Therefore, having given specific instruction vide letter Exhibit F2 and given possession of the fixed deposit receipt Exhibit G to the defendant, I hold that

there is unequivocal instruction for a transfer of the amount therein into the current account which no was given as 1802010002911. That being so, the purported instruction as contained in the letter Exhibit B3 dated 17th November, 2008, has no effect whatsoever.
The instruction was to effect that the amount as at 01-08-2007 should be paid immediately on receipt of same. This is a request on urgency for reasons as stated in the letter that he is sick and his son is taking care of him medically.”

On the question of whether the cheques which were honoured were signed in line with the mandate of the original Claimant and whether the drawees of the cheques are the children of the original Claimant, the lower Court reviewed the evidence, evaluated and ascribed probative value to the evidence at pages 201-204 of the Records and conclusively held as follows at page 204:
“I therefore hold that the cheques carry signatures of the drawer. There are no striking dissimilarities when all the signatures of the deceased claimant are compared visually which can compel me hold that this one or that one is forged having in mind the uncontroverted

evidence of DW1 when some of these cheques are drawn by the drawer. The indorsement on the cheques by the deceased claimant drawer confirms that the deceased claimant in fact and indeed draw [sic] the cheques in favour of Olufemi Akintunde Kayode and Femi Akintunde Kayode. The attempt to disclaim knowledge of the sonship of the drawees make me to take the claimants case with a pint [sic] of salt.”

I have meticulously considered the evidence on record. The findings of facts made by the lower Court flows from the evidence on record and the findings are not perverse. It is instructive that the Appellant on record was substituted based on the fact that her siblings authorized that she be substituted for their deceased father. The Appellant did not testify at the lower Court. There is nothing in law which requires her to testify, if she can otherwise prove her case. But with respect to the issue as to whether Olufemi (Femi) Akintunde Kayode to whom the cheques drawn on the original Claimant’s account were issued and who the Respondent tendered photo identifications of in evidence; the best evidence of whether the person in the said photo

identification is the son of the original Claimant, could only have come from the Appellant on record, unfortunately she did not testify. Little wonder then that, the lower Court was unable to accept the testimony of the CW1, who is not a member of the family of the original Claimant, and preferred the case of the Respondent in this regard.

The lower Court in resolving the issue of whether the signature instructing the termination of the fixed deposit account was the same as that in the original Claimant’s mandate card, rightly in my view, gave credence to the fact that the fixed deposit receipt, which only the original claimant could have, was attached to the instructions for termination; furthermore, and again rightly in my view, did a visual comparison of the signatures as it is empowered to do by Section 101 (1) of the Evidence Act, 2011 [Section 108 (1) of the Evidence Act, 1990]. See TOMTEC NIGERIA LTD vs. FHA (2009) LPELR (3256) 1 at 26-27, ADENLE vs. OLUDE (2002) 18 NWLR (PT 799) 413 at 430-431 and 432, YONGO vs. C.O.P. (1992) LPELR (3528) 1 at 28, TEICH vs. NORTHERN INTERNATIONAL MARKET CO. LTD (1987) 4 NWLR (PT 65) 441 at 454-455 and

BOYE INDUSTRIES LTD vs. SOWEMIMO (2009) LPELR (8858) 1 at 23-24. The lower Court did not see any dissimilarities in the signature and consequently found and held that it was the original Claimant who issued the instruction and cheques. In fact, no dissimilarity in the signatures has been alluded to or highlighted on appeal.

At the risk of being prolix, I restate that an appellate Court will not substitute its own views with those of the trial Court, when as in the instant appeal, the trial Court has unquestionably evaluated the evidence and justifiably appraised the facts. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19-20. The evaluation of evidence and the findings made by the lower Court were definitely not perverse. Therefore, there is absolutely no basis on which an appellate Court can intervene. From all I have said thus far, the inexorable conclusion is that the Appellant has failed to displace the presumption that the conclusions of the lower Court on the facts are correct in order to upset the judgment on the facts: EHOLOR vs. OSAYANDE (supra) at 43 and ONI vs. JOHNSON (supra) at 11-13.

As I begin to wrap up this judgment, the Appellant forcefully argued that the lower Court awarded N4 million in her favour and thereafter proceeded to dismiss the action in its entirety.

Taken as a whole and properly contextualized, this is what the lower Court stated while considering the relief claimed by the Appellant for the sum of N50 million as general damages. Hear the lower Court at page 208 of the Records:
In respect of the 4th claim on damages, it is settled that for a claimant to be entitled he has to show the injury that flowed from the actions of the defendant and proof [sic] the amount claimed. The claim for damages is based on the tort of negligence, the basis of claim is that the claimant must plead and prove the amount that would require to put him back at the original position if his money as

claimed had not been negligently allowed to be drawn. I find no such pleading nor proof called. The claim therefore is equally not proved.
If however I am wrong in my assessment and it is held that the defendant was negligent in the manner the account was operated and when the amount was transferred from fixed deposit without instructions and equally allowed to be withdrawn against the mandate of three signatories, I would award a sum of N4 Million naira which includes the amount in Exhibit G plus inconvenience allowance.”
From the above pericope, it cannot be confuted that the lower Court did not award the sum of N4 Million in favour of the Appellant. The lower Court held that the Appellant did not satisfactorily plead and prove the amount claimed as general damages and clearly held that the claim was not proved. However, in keeping with the exhortation of the appellate Courts that in situations where a Court of trial finds a claim for damages not proved, that it should go ahead to state what it would have awarded as damages if it had been proved, in order to obviate remitting the case after a successful appeal to the Court of trial to assess

damages, the lower Court as a guide, in the event that it was wrong in holding that the Respondent was not negligent stated that it would have awarded damages of N4 Million. This definitely does not qualify as any success by the Appellant and any award made in her favour. In OTTI vs. EXCEL-C MEDICAL CENTRE LTD (2019) LPELR (47699) 1 at 56-57, I was privileged to state the legal position in the following words:
“The legal position in this regard is settled beyond peradventure. It is that in order to avoid undue prolongation of litigation and to prevent unnecessary expense, the trial Court should always, as a matter of duty assess the damages it would have awarded, even if the decision was against the party claiming damages: INTERNATIONAL TEXTILE IND. NIG. LTD vs. ADEREMI (1999) 8 NWLR (PT 614) 268 at 301-302, YAKASSAI vs. MESSRS INCAR MOTORS LTD (1975) 5 SC 107 at 115-116 and C & C CONSTRUCTION CO. LTD vs. OKHAI (2003) LPELR (821) 1 at 31-32. Let me hasten to state that the failure by the trial Court to assess the damages it would have awarded if the action had succeeded is not fatal. The law remains that where a trial Court has assessed damages,

then an appellate Court can either agree with the assessment or in appropriate cases vary the amount. Where the trial Court did not make any assessment, like in this case, an appellate Court can make the assessment itself if the materials on which it can do so are available on the record. See OVERSEAS CONSTRUCTION CO. (NIG) LTD vs. CREEK ENTS (NIG) LTD (1985) LPELR (2835) 1 at 23 and MIDLAND GALVANIZING PRODUCTS LTD vs. COMET SHIPPING AGENCIES NIG LTD (2014) LPELR (24019) 1 at 24-25.”
Therefore, even though the lower Court had stated what it would have awarded as damages if the relief had been proved, the ultimate decision of the lower Court dismissing the Appellant’s action in its entirety is the correct decision. The judgment of the lower Court is pellucid and it is not contradictory.

The concatenation of the foregoing is that all the issues for determination are resolved against the Appellant. This signposts that the appeal is bereft of merit. The appeal accordingly fails and it is hereby dismissed. The judgment of the High Court of Oyo State in SUIT NO. I/700/2010: MRS. ABIMBOLA FIJABI (NEE KAYODE) [substituted for Akinyele Timothy

Kayode (Deceased)] vs. FIRST BANK OF NIGERIA PLC, Coram: Abimbola, J. delivered on 3rd October 2013 is hereby affirmed. The Respondent is entitled to the sum of N50,000.00 against the Appellant as costs of this appeal.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA just delivered.

Having read the records of appeal as well as the briefs of argument filed on behalf of the parties, I agree with my Lord that the Appellant failed to displace the presumption that the conclusion of the lower Court on the facts are correct.

In the circumstance, I am of the view that this appeal lacks merit and it is hereby dismissed.
I abide by the consequential orders made in the said lead judgment including the order as to cost.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in advance the draft of the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.

His Lordship has dealt exhaustively with all the issues that require consideration and I agree that the appeal is devoid of merit and should be dismissed. I also dismiss the appeal and I abide by all the consequential orders contained in the lead Judgment including the order as to costs.

Appearances:

Chief T. A. Obisesan with him, Adekunle Ilori, Esq. & Olasubomi Obisesan, Esq. For Appellant(s)

A. Adeyemo, Esq. with him, V. C. Madagwu, Esq. For Respondent(s)