FIRST BANK OF NIGERIA PLC v. BARR. JOHN E. ORONSAYE
(2019)LCN/13037(CA)
RATIO
CIVIL MATTERS: BURDEN OF PROOF
There is no doubt that in civil matters, the onus of proof shifts as the evidence preponderates. I need to say here that a Plaintiff, as the Respondent herein, must succeed on the strength of his own case and not on the weakness of the defence.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CIVIL MATTERS: WHEN THE ONUS OF PROOF DOES NOT SHIFT
The rule however changes if the Plaintiff finds in the evidence of the defence facts which strengthen his own case. Where the exception has not happened, the Plaintiffs case must fail. SeeEzekiel Oyinloye v. Babalola Esinkin & Ors. (1999) 5 SCNJ Pg. 278 at 288; Akande v. Adisa & Anor. (2012) 15 NWLR Pt. 1324 Pg. 538 SC; Omoregie v. Aiwerioghene (1994) 1 NWLR Pt. 318 at 488.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
BANKER CUSTOMER RELATIONSHIP: THE DUTIES THAT A BANKER OWES ITS CUSTOMER
In Diamond Bank Plc. v. Wellcare Alliance Ltd. (2015) LPELR-40762 (CA), the Court held as follows:
I share the re-instatement of the law by my learned brother that the Appellant as a banker to the Respondent owed the Respondent a duty to exercise reasonable care and skill the breach of which entitles the Respondent to claim damages for negligence. It is settled law that the legal relationship between a bank and a customer based on contract is that of a Creditor and Debtor, or Principal and Agent. The creditor/Principal being the customer and the Debtor/agent being the bank. The contractual relationship imposes a duty of care on the Bank the breach of which will impose on the bank a liability of negligence. See Standard Trust Bank Ltd. v. Anumnu (2008) 14 NWLR Pt. 1106 Pg. 125; UBA Plc. v. Godm Shoes Industries (Nig.) Plc. (2011) 8 NWLR Pt. 1250 Pg. 590.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
WORDS AND MEANING: JUDICIAL AND JUDICIOUS
The terms “Judicial” and “Judicious” were defined by the Supreme Court in the case of ERONINI v IHEUKO (1989) 2 NWLR (101) 46 at 60 and 61 as follows: “Acting judicially imports the consideration of the interest of both sides weighing them in order to arrive at a just or fair decision. Judicious means:- (a) proceeding from or showing sound judgment; (b) having or exercising sound judgment; (c) marked by discretion, wisdom and good sense.” In the above premises, once the High Court exercises its discretion in the assessment and award of cost in accordance with the provisions of its Rules, taking into account the interests of both sides, the exercise would be both judicial and judicious and therefore sustainable in law. Perhaps I should point out that the above provisions of Order 31 Rule 1(1) and (6) are applicable to all proceedings in the High Court including proceedings conducted under the undefended list procedure provided by the Rules of that Court. The High Court is therefore entitled to assess and award costs in a judgment entered under the undefended list procedure as it may deem fit to order in the peculiar circumstances of a case.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, delivered by Hon. Justice Efe Ikponmwonba on 4/7/13 wherein judgment was entered in favour of the Respondent and the sum of Five Hundred Thousand Naira (N500, 000. 00) was awarded as costs against the Appellant.
The facts that led to this appeal are as follows:-
The Plaintiff at trial (Respondent herein) was a customer with the Appellant and operated two accounts with the Appellants branch office at Kings Square, Benin City. The Respondent sometimes in 2008 went to the Bank to transact business on one of his accounts but could not do so as he was informed that the account name belonged to one John Okundia Oronsaye, the Respondents brother who was as at that time deceased. Every effort to resolve the issue for more than two (2) years failed as the Appellant went back and forth with various correspondence between the parties.
Aggrieved, the Respondent filed a writ of summon at the Edo State High Court on 22/9/11 and claimed as follows:-
i. A declaration that the Defendant has no right to declare his account missing and later transfer his account to another persons name.
ii. An order directing the Defendant to reinstate the Claimants account with them and state the exact amount now standing on each of the accounts with an update of each of the account.
iii. The sum of N20, 000, 000. 00 (Twenty Million Naira) as general damages for breach of contract and illegal; manipulation of the Claimants account.
Pleadings were fully exchanged between parties. The Respondent testified in person, called two other witnesses and tendered Exhibits in proof of his case while the Appellant called one witness and also tendered Exhibits in defence. In a considered judgment, the trial Court granted the reliefs sought by the Respondent, and awarded costs of Five Hundred Thousand Naira (N500, 000. 00) against the Appellant.
Dissatisfied, the Appellant filed a Notice of Appeal on 11/7/13. Record was transmitted on 12/8/13. The Appellants brief was filed on 13/8/13. The Respondents brief was filed on 11/11/15 pursuant to order of Court granted on 5/11/15.
In the brief settled by Mr. Ehinon Okoh, Esq., the Appellants counsel identified two issues for the determination of this Appeal as follows:-
1. Whether on the preponderance of evidence, the learned trial judge was not in error in giving judgment in favour of the Respondent.
2. Whether the cost awarded can be justified.
Mrs. C.G. Ekejiuba, Esq. who settled the Respondents brief identified two issues for the determination of this appeal to wit:-
1. Whether the judgment of the trial judge was not proper in law having regard to the evidence before the judge.
2. Whether the cost awarded was not proper in law.
In the determination of this appeal, I have read the record and briefs of counsel, I humbly hold the firm view that there is only one issue which is necessary to address the complaints raised by the Appellant and it is set out as follows:-
Whether in the entire circumstances of this case, the trial judge was justified to have granted the reliefs sought and Five Hundred Thousand Naira Only as costs in favour of the Respondent.
SOLE ISSUE
Whether in the entire circumstances of this case, the trial judge was justified to have granted the reliefs sought and Five Hundred Thousand Naira Only as costs in favour of the Respondent.
Learned Appellants counsel argued that a Claimant seeking a declaratory relief such as this case must succeed on the strength of his own case and not on the weakness of the defence. If the onus is not discharged, the weakness of the defendants case may not help him. Counsel cited Elema v. Akenzua (2000) 3 NWLR Pt. 683 Pg. 93.
Counsel further argued that the Respondent called PW2 to substantiate the allegation that he has over Fourty One Million Naira (N41, 000, 000. 00) with the Appellant but there was no evidence that PW2 made any payment into the disputed account as she could not produce the receipt issued. Counsel cited Saleh v. B.O.N Limited (2006) 6 NWLR Pt. 976 Pg. 316 at 327 as authority to submit that the best way of proving payment of money into a bank account is by production of bank teller or an acknowledgement showing on the face of it that the bank had received the payment.
Counsel emphasized that the Respondent testified and tendered letters but failed woefully to tender any slip evidencing payment of money into the disputed account of Respondents Late brother who bears almost the same name with the Respondent, the difference being in the middle names.
Counsel argued that the Respondent in his deposition stated that he paid money through relations into the account but none of these relations were called except PW2 whose evidence was totally devoid of value. The evidence of PW1 and PW2 did not in any way prove or add any probative value to the case of the Respondent.
Learned counsel opined that the account to which the Respondent was laying claim belongs to John Okundia Oronsaye and it will be wrong to transfer the money in the said account to the Respondent without any proof that the Respondent paid any money into the account. Counsel stated that there are also legal procedures to be followed to enable a person operate a deceaseds persons account.
Counsel also argued that the learned trial judge did not properly appraise the issue before him and this consequently led to perverse findings and wrong conclusions. The trial judge in arriving at her judgment relied on an evidence that was not before the Court.
Counsel opined that the learned trial judge did not avert his mind to the position of the law on the burden of proof in a declaratory action such as this but merely based his judgment on sentiment and emotion which are unknown to law. Counsel cited Ayanru v. Mandilas Ltd. (2007) 10 NWLR (1043) Pt. 467 Pg. 477-478.
Counsel argued that the trial judge made heavy weather of the year the accounts were opened even though it was not an issue seriously disputed by the parties and ought not to have played any significant role in the judgment.
Counsel further argued that the learned trial judge was in error to have held that the Appellant could have produced the statement of the account which the Respondent is entitled to, to show whether such money was paid in or not.
Counsel emphasized that it is not the duty of the Appellant to do the case of the Respondent for him. If he paid money into the account he is to prove same to Court and not for the defence to prove that he did not especially when there is no evidence that the account belongs to him.
Learned Counsel submitted that this Court will not interfere unless satisfied that the trial judge did not exercise his discretion or did not do so judicially. Counsel urged this Court to interfere with the evaluation of evidence by the trial Court. Saleh v. B.O.N Ltd (supra); Wurno v. United Africa Co. Ltd (1956) 1 FSC 33 at 34.
Counsel argued that the object of awarding costs is not to punish the unsuccessful litigant but to compensate the successful party for the expenses to which he has been put by having to come to Court. Counsel cited Inneh v. Obaraye 2 FSC 58; Ero v. Tinubu (2012) 8 NWLR Pt. 1301 Pg. 104 at 133.
Learned counsel argued that the cost of N500, 000. 00 awarded by the trial Court is outrageous, baseless and outside the realm of costs reasonably incurred as the Respondent could not produce his savings Books/Tellers to show he was worthy to be paid any compensation at all.
Learned Respondents counsel on the other hand contended that the judge was right to have granted the reliefs sought by the Respondent after hearing the evidence on both sides. The admission of the Appellant shows that the Respondent maintained the two accounts with the Appellant and the Appellant must account for the status and any money standing to the credit of the said accounts of the Respondent.
Counsel emphasized that the Appellant in their amended statement of defence at the trial Court conceded that the Respondent has two accounts with them and that the Respondent has his personal files containing mandate forms, signature cards and pictures which is different from any other customer.
Counsel argued that the Appellant did not lead any evidence regarding the status of the Respondents account with them nor produce the Respondents account files containing the signature cards, pictures and all other documents relating to the account before the Court.
Counsel further argued that Exhibit D which showed that the Respondent opened his account in 2008 attest to the gross negligence of the Appellant in the running of the affairs of the Respondents bank account which is a breach of their duty as a banker to the Respondent. Counsel cited Agbanelo v. U.B.N Ltd (2000) 77 LRCN 1140 at 1164 Par. F, G & H.
Learned counsel argued that the cost awarded by the trial Court was reasonable in the circumstances of this case as the Respondent who is ordinarily resident in the USA had been going back and forth to the Appellants bank since 2008 to know the status of his account but without result. Counsel cited Layinka v. Makinde (2002) 98 LRCN Pg. 1139 Ratio 9 and 10; GKF Inv. Nig. Ltd. v. Nig. Telecom Plc. (2009) Vol. 174 LRCN Pg. 1 at 14.
Counsel submitted that cost follows event and a successful litigant is entitled to cost, and had the Appellant performed its duty as required by law, the expenses incurred because of the failure of the Appellant to carry out its duty as a reasonable and dedicated banker could have been avoided.
OPINION
It is an established fact that the Respondent is a customer with the Appellant and he operated two accounts at the Appellants branch office at Kings Square, Benin City. It is also not in dispute that the Respondents Late brother, John Okundia Oronsaye who was also a legal practitioner operated two accounts with the same bank before his demise.
The Respondents evidence is that he opened Accounts numbered 00201077798 and 00201103055 before he traveled to the USA and while he was outside the country, he particularly made several payments into account no 00201077798 through some relatives. However, on arrival back in Nigeria, it was discovered that the Appellant had muddled up his accounts with that of his Late brother John Okundia Oronsaye. He further contended that he used his personal details when opening account No 00201077798 with the bank. It is the status of the Account No. 00201077798 that is in contention between the parties.
The evidence of the Appellants witness is that the said account went through three migrations and became Account No 110301001633 which the Appellant claims belonged to one John Oronsaye now Late. The balance in the Account said to be owned by the Late John Oronsaye as contained in Exhibit E is N1,100,000. 00 (One Million One Hundred Thousand Naira only).
Let us take a look at the Appellants evidence on oath, at Pages 38b-38c of the Record as follows:
Yes, it is true that every customer that opens an account has a separate file opened. Yes, it is true that two customers cannot have the same account number. Yes, every account has a mandate card for the customer. Yes, the documents are kept in the Banks custody. But mandate are scanned into the system. Yes, the essence is to make sure there is no mix up. Every customer is requested to fill a form before he open an account. Yes, they are filled with hand writing, names and signature. Yes, every payment and withdrawal by the bank and the customer has copies also. Yes, the Claimant has two accounts, a savings and a current. Yes the Records of the account are with the bank. He came to request for his own account details, a savings and a domiciliary account. But the other one that is not his own account we did not give him. I see Exhibit B8. In the letter, I admitted that the number was transferred to another. The account number the claimant requested for is an old account number. We told him that the name did not tally. I see B4 and B3. This is the request and that was our response to these 2 letters. I see Exhibit B2. Both B2, B3, and B4 they have the same account number quoted. We found that the account belongs to another Oronsaye. No, the other Oronsaye was not indebted to any bank.
I have looked at Exhibit D which is an internal memo from the Appellant to its audit department regarding this issue. The branch stated that the Respondent opened his Accounts in 2008, whereas the evidence of the Respondent on oath before the Court is that the Respondent opened his account before he left Nigeria and was away for about twelve (12) years before he came back in 2008. The Respondent had tendered Exhibit E, a statement of Account he received in respect of that Account. Exhibit E was never disputed by the Appellant. PW1, widow of the Respondents brother – the said Late John Okundia Oronsaye had sworn to an affidavit and also swore in open Court that she had sworn to an affidavit at the request of the Bank to the effect that her Late husband had two accounts with the Bank, one in his name and the other in the Companys name. She had stated in both the affidavit and in open Court that both accounts had not been operated by her husband for a long time before his death and that as at the time he died there was no money or very little money in both Accounts. In Exhibit B8, the Appellants witness had admitted that the Account Numbers of the Respondent had been transferred to another person and the number on the new account and the name did not tally.
There must be ways by which banks differentiate a customers account number from that of another customer. I think that is the reason behind the several measures adopted by the Appellant as adduced in evidence by ensuring that every customer fills out a form before an account is opened for them; the forms are filled in the customers own hand writing, names and signature of the customer; every account has a mandate card for the customer; the mandate is scanned into the system of the bank etc. In my view, this measure was put in place to protect each customers account from every form of fraud or possible mix up. The bank also owes its customer an unalloyed duty of confidentiality not to disclose these information to third parties and any breach of these duties could give rise to liability in damages if loss results. This duty arises between a banker and customer upon the opening of an account and continues beyond the time when the account is closed. See UBA v. Corporate Affairs Commission & Ors (2016) LPELR-40569 (CA); Christofi v. Barclays Bank Plc. (2000) 1 WLR 937.
I agree with learned Respondents counsel that the Appellant has the duty to produce the relevant documents covering the Respondents account: mandate cards, pictures and other forms that were filled by the Respondent when he opened the account which are in the custody of the Appellant as the Banker.
At pages 56 of the Record, the learned trial judge found as follows:
I have taken serious cognizance of Exhibit D. It is an internal memo from the Defendant to its audit department regarding this matter. In that Exhibit, it says that the Claimant opened his two accounts in 2008. This is completely inconsistent with the evidence before the Court. There is evidence that Claimant opened the Account before he left Nigeria and was away for about twelve years before he finally came back in 2008 or thereabouts. Even Exhibit E, the statement of account attests to this fact. In Exhibit C, it is stated there that the mandate card had the picture of the Claimant and the signature of the late J.O. Oronsaye. How is this possible?
The learned trial judge found at Pg. 56 of the Record as follows:-
The question that arises therefore now is what became of the Claimants second account? Claimant has given his account number and the Defendant is saying it belongs to someone else. The Defendant to my mind is obliged to explain this anomaly and clear the issue. As they are the only one that can explain it a way.
I have read through the Record and I cannot find a place where the Appellant proffered any reason at all why this mix up occurred. I completely agree with the learned trial judge when he held at Pg. 57 of the Record that the Appellant owes the Respondent a duty to explain what happened to his accounts.
The major complaint of the Appellant in this appeal is that the onus of proof rested squarely on the Respondent and did not shift since he sought declaratory relief in the first head of his claim. In civil matters, the general burden of proof in the sense of establishing his case is on the Plaintiff. See Owie v. Ighiwi (2005) LPELR-2846(SC);(2005) 5 NWLR Pt. 917 Pg. 184; Nwavu & Ors. v. Okoye & Ors (2008) 18 NWLR Pt. 1118 Pg. 29 (SC); Sakati v. Bako & Anor. (2015) 14 NWLR Pt. 1480 Pg. 531 (SC).
In this case where a declaration is sought, the Respondent had both the legal and evidential burden of proving the claim that the Bank had no right to declare his account missing and to transfer his account to another persons name. That was how his claim for declaration was worded. Contrary to the argument of Appellants senior counsel, the Respondent did not ask for a declaration that the money in the disputed account belonged to him; he asked that the Court should declare that the Bank had no right to declare his account missing or to transfer it to another persons name. Did the Respondent prove that indeed the Bank did those things? In view of the fact that the Banks witness stated on oath that the Respondents disputed account was transferred to another persons name. In Exhibit C, it was stated that the Account Mandate Card for the account had the Respondents picture but the Late John Oronsayes name and signature.
There is no doubt that in civil matters, the onus of proof shifts as the evidence preponderates. I need to say here that a Plaintiff, as the Respondent herein, must succeed on the strength of his own case and not on the weakness of the defence.
The rule however changes if the Plaintiff finds in the evidence of the defence facts which strengthen his own case. Where the exception has not happened, the Plaintiffs case must fail. SeeEzekiel Oyinloye v. Babalola Esinkin & Ors. (1999) 5 SCNJ Pg. 278 at 288; Akande v. Adisa & Anor. (2012) 15 NWLR Pt. 1324 Pg. 538 SC; Omoregie v. Aiwerioghene (1994) 1 NWLR Pt. 318 at 488. After the Respondent had called witnesses and proved that he in fact opened two accounts (one current and one domiciliary) with the Bank, he had discharged the initial legal and evidential burden, the onus shifted on the Bank to prove that he never opened two accounts one of which was a Naira and the other a domiciliary account. The Bank could not state categorically that he never opened the second disputed domiciliary account since they admitted to seeing an account which had the picture of the Respondent but the name and signature of his brother. In the circumstances of this case, given the fact that in the Banking business, it is the duty of the Banker to keep the books of Account, the Appellant was indeed obliged to supply the Respondent with an updated Statement of Account in respect of the missing domiciliary account.
As proof of payment of money into a bank account, the Supreme Court in Saleh v. B.O.N Limited (2006) 6 NWLR Pt. 976 Pg. 316 at 327 held that:
In a situation such as this, where the appellant claimed to have repaid the loan overdraft against the statements of accounts tendered by the respondent bank showing non-payment by the appellant, the proof of payment by the mere ipse dixit of the appellant cannot be sufficient proof of repayment of the debt. See Debs v. Cenico (Nig.) Ltd. (1986) 6 SC. 176 (1986) 3 NWLR Pt. 32 Pg. 846.
The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgment showing on the face of it that the Bank has received the payment. A bank teller dully stamped with the official stamp of the Bank and properly initialed by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt needs not prove more unless payment is being challenged.
As I said earlier, the Respondents 2nd head of claim is for the reinstatement of his domiciliary account with his name and the publication to him of a Statement of Account. The Respondent very carefully, did not ask for the reimbursement or the payment of a specific amount of money since he did not tender any teller to prove his claim of payment of certain sums of money into the account. All he asked for is the regularization of his account and a statement showing the status of his credit with the Bank. I am of the view that the Appellant was obliged in any event to supply the Respondent with a Statement of Account.
It is not in dispute that the relationship between the Appellant and the Respondent was that of Banker and Customer. The Bank therefore owes the Respondent a duty to exercise high standard of care not only in managing the Respondents monies but also his information and details which are in its custody. See Mainstreet Bank Ltd v. Juumanwin Nig. Ltd. (2013) LPELR-21855 (CA); Agbanelo v. UBN (2000) 4 SC Pt. 1 Pg 243. Assuming the Bank had given enough explanation regarding how the account in question got mixed up with that of the Respondents Late brother after undergoing the three stages of migration, there would not have been need for litigation in the first place.
In New Improved Manibannc Ventures Ltd v. FBN Plc. (2009) LPELR 8757 (CA); (2009) 16 NWLR Pt. 1167 Pg. 411 the Court held thus:-
It is settled law 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 operations within its contract with its customers. The duty to exercise reasonable care and skill extends over a whole range of banking business within the contract with the customer.
See alsoAgbanelo v. U.B.N (supra); Diamond Bank Plc v. Dr. Levi Chulks Monanu (2012) LPELR-19955 (CA); Standard Trust Bank Ltd. v. Anumnu (2008) 14 NWLR Pt. 1106 Pg. 125; UBN Plc. v. Chimaeze (2014) 9 NWLR Pt. 1411 Pg. 166 (SC).
I disagree with the Appellants counsel that the onus is on the Respondent to prove that he operated the account in question. In the ordinary course of Banking business, it is the bank that has the most reliable record of every customers transaction right from the opening of such account. Customers rarely have a record of their account opening details. The Appellant who has a reliable custody of details should have provided the account opening details of the Respondents two account numbers.
Having failed to clarify and or rectify the mix up which occurred on the Respondents account and that of his Late brother, I agree with the learned trial judge that the bank did not exercise reasonable care and skill as regards the Respondents Records with it. I am of the view given the circumstances of this case and the specific claim of the Respondent that the Respondent has been able to prove that the Bank wrongly declared his account missing and were wrong to have transferred same to another person.
In the circumstances of this case, the contractual relationship between the Appellant and the Respondent imposes a duty of care on the Appellant as a Banking institution, the breach of which will impose on the bank a liability of negligence. Negligence by a bank consists of any act or omission in the course of performing services for a customer that is not in accordance with the standard of conduct reasonably expected of a banker in such circumstances. See. United Nig Insurance Co. v. Muslim Bank of West Africa (1972) 4 SC 67.
In Diamond Bank Plc. v. Wellcare Alliance Ltd. (2015) LPELR-40762 (CA), the Court held as follows:
I share the re-instatement of the law by my learned brother that the Appellant as a banker to the Respondent owed the Respondent a duty to exercise reasonable care and skill the breach of which entitles the Respondent to claim damages for negligence. It is settled law that the legal relationship between a bank and a customer based on contract is that of a Creditor and Debtor, or Principal and Agent. The creditor/Principal being the customer and the Debtor/agent being the bank. The contractual relationship imposes a duty of care on the Bank the breach of which will impose on the bank a liability of negligence. See Standard Trust Bank Ltd. v. Anumnu (2008) 14 NWLR Pt. 1106 Pg. 125; UBA Plc. v. Godm Shoes Industries (Nig.) Plc. (2011) 8 NWLR Pt. 1250 Pg. 590.
On the other leg of this issue, the Appellant vigorously argued that the cost of N500, 000. 00 awarded against it is outrageous and baseless. Award of cost is entirely at the discretion of the Court, costs follow the event of litigation, and therefore a successful party is entitled to costs unless there are special reasons why he should be deprived of this entitlement. The Courts are enjoined to grant such cost with correct and convincing reasons. See NNPC v. CLIFCO Nig. Ltd (2011) 10 NWLR Pt. 1255 Pg. 209 LPELR-2022(SC); Anyaegbunam v. Osaka (1993) 5 NWLR Pt. 294 Pg. 449; Obayagbona v. Obazee (1972) 5 SC Pg. 247. I must mention that it is the responsibility of learned trial judges to read the claim carefully. In this case, the learned trial judge seems to have muddled up the claim of N20, 000, 000. 00 (Twenty Million Naira Only) for breach of contract with the costs of litigation. Costs of litigation are quite different from the claim of general damages flowing from a breach of contract. A litigant may be awarded damages for breach of contract or trespass to land, or breach of fundamental rights and also be compensated for the money and time spent on litigating the issue where the offending party refuses to concede the fault especially having been found at fault at Court of first instance.
In this case, the judgment of the learned trial judge is unclear whether the amount of N500, 000. 00 (Five Hundred Thousand Naira Only) was for the damages claimed or for the costs of litigation. Since the learned trial judge held as follows on Pg 59 of the record:
No doubt he deserves to be compensated. I hold that the Claimant has proved his case on the preponderance of evidence. Claimant is awarded costs in the sum of N500, 000. 00.
This Court is obliged to give the ordinary meaning to the word costs as pronounced by the learned trial judge. In Mrs Eno Umo v. Mrs Cecilia Udonwa (2012) LPELR-7857 (CA), this Court held as follows per Garba JCA:
On the issue of costs, ordinarily, the assessment and award of costs in a case are left at the discretion of the Court by the relevant rules. For our purposes in the present appeal, Order 31, Rule 6 of the High Court of Cross River State (Civil Procedure) Rules 1987, applicable at the time of suit, provides thus: “6. Subject to the provisions of any applicable law and these Rules, costs, both actual and incidental to all proceeding in the High Court, including the administration of estates and trusts, shall be at the discretion of the Judge, and the Judge shall have full power to determine by whom and to what extent the costs are to be paid.” Furthermore, in the assessment and award of costs by the High Court, it is to be guided by the provisions of Rule l(1) of the same Order 31 which provide that:- “1(1). In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses which he has necessarily put in the proceeding as well as compensated for his time and effort in coming to Court. The Judge may take in to account all circumstances of the case.” The combined effect of the above provisions of the two (2) Rules of the High Court is that it is vested with a judicial discretion in the assessment and award of costs in proceedings that come before the Court which shall be exercised in line with the principle set out therein. It is an established principle of law in judicial practice that all judicial discretion vested in or conferred on a Court of law is required to be exercised judicially and judiciously. The terms “Judicial” and “Judicious” were defined by the Supreme Court in the case of ERONINI v IHEUKO (1989) 2 NWLR (101) 46 at 60 and 61 as follows: “Acting judicially imports the consideration of the interest of both sides weighing them in order to arrive at a just or fair decision. Judicious means:- (a) proceeding from or showing sound judgment; (b) having or exercising sound judgment; (c) marked by discretion, wisdom and good sense.” In the above premises, once the High Court exercises its discretion in the assessment and award of cost in accordance with the provisions of its Rules, taking into account the interests of both sides, the exercise would be both judicial and judicious and therefore sustainable in law. Perhaps I should point out that the above provisions of Order 31 Rule 1(1) and (6) are applicable to all proceedings in the High Court including proceedings conducted under the undefended list procedure provided by the Rules of that Court. The High Court is therefore entitled to assess and award costs in a judgment entered under the undefended list procedure as it may deem fit to order in the peculiar circumstances of a case. Put another way, the High Court is empowered by the judicial discretion vested in it by its rules to assess and make an order for or award costs in judgments entered under the undefended list proceedings. Speaking generally, costs as between party and party are given or awarded as an indemnity to the person entitled to them, usually a successful party at the conclusion of proceedings in a case, not as a bonus to him or imposed as a punishment to the losing party. REWANE V OKOTIE-EBOH (1960) SCNLR 461; UBN v SCPOK (NIG) LTD (1998) 12 NWLR 578; OGUNMOKUN v MILAD, OSUN STATE (1999) 3 NWLR (594) 261 at 287. In addition, in awarding costs, a Court is entitled to consider among other factors, the following: – a) the summons fee b) duration of the case c) legal representation d) expenses incurred by the successful party in the ordinary course of prosecuting the case. e) The value or purchasing power of the Naira at the time of the award. See ONABANJO V EWETUGA (1993) 4 NWLR (288) 443 at 460; DELTA STEEL CO. LTD v AMERICAN COMP. TECH. LTD (1999) 4 NWLR (597) 53 at 68. This Court had, per Ikongbeh, JCA in the case of UZOMA v OKORIE (2000) 15 NWLR (612) 882 at 893, held that: “Matters such as the number of years it takes to conclude a case, the number of adjournments, processes that had to be filed and the transportation of counsel to and from the Court are such that the Court may take into consideration when fixing the amount of costs and Court may not need to expressly state so. Thus … the fact that the reasoning of the trial Court on the matter was not recorded did not necessarily make the decision on costs arbitrary.
See also CITIBANK Nig Ltd. v. Ikediashi (2014) LPELR- 22447; Total Engineering Services Team Inc. v. Chevron (2010) LPELR- 5032 (CA); Emori v. Egwu (2016) LPELR-40123 (CA).
Whereas in this case, the Respondent claimed general damages for breach of contract of Banker and Customer, and there is no doubt in my mind he is entitled to claim some pecuniary loss for the Banks breach of duty of care, it is different from the costs of litigation. SeeAlh. Mustapha Aliyu Kusfa v. United Bawo Construction Co. Ltd. (1994) LPELR 1721 (SC).
Be that as it may, I assume that the Respondent was awarded costs of litigation, this Court will not interfere with the way a trial Court exercises its discretion except where the discretion was wrongly exercised or such exercise was based upon some wrong principles of law. I do not find the cost excessive in the peculiar circumstances of this case, neither is it in breach of any known rules on costs. A careful reading of the Respondents claim and his uncontroverted evidence on oath shows that he had to go to the Banks offices several times and even to their head office over a period of time before he had to resort to litigation to enforce his rights as a customer or get the Bank to fulfill their own obligations under the terms of the contract between the parties. It must be borne in mind that the Bank as Appellant was not able to tell the Respondent the Account standing to his credit in respect of a domiciliary account which they had muddled up. The Respondent is entitled to costs of this Litigation caused by the irresponsible behavior of the Appellant Bank. In my humble but firm view, the Learned trial judge exercised his discretion judicially and judiciously in awarding the costs of N500, 000. 00. at trial in favour of the Respondent.
In the circumstances, the sole issue is resolved against the Appellant. I am of the firm view that the Appeal should be dismissed as it has absolutely no merit. The judgment of Hon. Justice Efe Ikponmwonba in Suit No B/648/2011 delivered on 4/7/13 is hereby affirmed including the order as to costs.
It is obvious that the Respondent is entitled to the costs of this Litigation in this Court as costs follow events and the Respondent should be compensated for being dragged to the appellate Court on a matter in which a responsible and credible Bank should have thrown in the towel and given the Respondent the information he needs on his account. I also award the sum of N500, 000. 00. (Five Hundred Thousand Naira only.) in favour of the Respondent as costs of the Litigation in this Court against the Appellant. Appeal Dismissed.
SAMUEL CHUKWUDUMEBI OSEJI J.C.A.: I have read before now a draft copy of the lead judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA.
After a perusal of the record of appeal as well as the parties brief of argument, I am satisfied with the reasoning and conclusion contained in the said lead judgment to the effect that this appeal lacks merit and deserves nothing but an outright dismissal.
The Appellant as a reputable bank in this country ought not to callously undermine its primary duty of care to its customers no matter their station in life.
In the instant case, there is a clear case of breach of contract in the handling of the Respondents account with the bank. It however opted to clothe itself with a veneer of arrogant resistance to the Respondents claim both before and after the commencement of the suit.
The trial Court found the Respondents claim proved but unfortunately the Respondents claim for N20million general damage was not considered. Rather cost of N500,000 was awarded. The Respondent did not also deem it necessary to appeal against it so this Court cannot embark on a voyage of unsolicited discovery. All the same I find this appeal totally unmeritorious and it is hereby dismissed.
I abide by the consequential orders made in the lead judgment inclusive of the order for costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading before now the draft of the judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA, I agree with the reasoning and conclusion therein,I also resolve the sole issue in this appeal in favour of the Respondent. This appeal lacks merit and it is accordingly dismissed,
I abide by the Order as to cost in the leading judgment.
Appearances:
Ehinoh Okoh, Esq.For Appellant(s)
E. R. Idubor, Esq. with him, O.S. Ohikhokhia (Mrs.)For Respondent(s)
Appearances
Ehinoh Okoh, Esq.For Appellant
AND
E. R. Idubor, Esq. with him, O.S. Ohikhokhia (Mrs.)For Respondent
