UBA PLC & ANOR v. CHUKWU
(2021)LCN/15687(CA)
In the Court of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, April 21, 2021
CA/E/153/2018
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
1. UNITED BANK OF AFRICA (UBA) 2. OBINNA IFEANEFU APPELANT(S)
And
MRS. SUSAN CHUKWU RESPONDENT(S)
RATIO
WHETHER OR NOT A JUDGE MUST ONLY CONFINE HIMSELF TO THE ISSUES RAISED BY PARTIES BEFORE HIM
The law, however, expects a Judge to maintain restraint, and confine himself to the issues raised by the parties before him and to pronounce on the same, without wandering to side issues. See Obiukwu Vs Ugwueruchukwu & Ors (2019) LPELR – 46616 (CA):
“A Judge must act and pronounce on the case and issues properly brought before it, based on the fact and evidence adduced, and is not permitted to wander from the case and issues raised, to scout for evidence to make a case for or support the wish and/or fantasy of any party. See the case of Suberu Vs The State (2010) LPELR–3120 SC; (2010) 8 NWLR (Pt.1197) 586; Ajuwon Vs Akanni (1993) 9 NWLR (Pt.505) 422; Olorunfemi & Ors Vs Asho & Ors (1999) 1 NWLR (Pt.585) 1; Obi Vs A.G. Imo State (2014) LPELR–24280 CA.
In Ardo Vs INEC & Ors (2017) 41919 (SC), it was held:
“The law is well settled, that when parties join issues on a particular subject matter, the only duty saddled on the Court is to proceed to deliver judgment on those issues. See Metal Construction (W.A.) Ltd & 2 Ors Vs Migliore & Anor (1979) SC…” PER MBABA, J.C.A.
WHETHER OR NOT GRPUNDS OF APPEAL MUST DERIVE FROM ISSUES DETERMINED IN THE JUDGEMENT OF THE COURT BELOW
But the fact that a Judge had wandered from the main issues before it to make some general observations and scathing remarks and/or castigations, does not make such observations and remarks a ground of appeal for seeking to nullify the decision of the Court, on appeal, when such remark or observation does not form the basis of the judgment of the Court i.e. the ratio decidendi of the judgment, being only an opinion or observation by the Court (obiter dictum) in the course of its judgment. See the case of Balonwu & Ors Vs Gov. of Anambra State & Ors (2009) LPELR –729 SC, where the Supreme Court said:
“A ground of appeal must be directly relevant and must derive from the issues determined in the judgment of the Court below, …An appellate Court limits itself onto issues determined by the Court below… Although, on a close examination of the remarks or comments made by the learned justices of the Court below which were made subject of this first ground of appeal show that they were highly uncomplimentary touching on the integrity and honesty of the learned Senior Counsel, all the same, these comments or remarks to me, were mere passing remarks not against the appellants.”
The law and judicial procedure/process permits a Judge to make comments and express himself, by way of passing remarks, in his judgment, which is commonly referred to a “obiter dicta”, without risking being abused or penalized for it, and such comments and remarks, as earlier stated, are not appealable. See Amaechi Vs Gov. Rivers State & Ors (2017) LPELR – 43065 (CA).
The law is trite, that appeals are not founded on passing comments (obiter dicta) of a Court. See Nwosu Vs PDP & Ors (2018) LPELR–44386 (SC); Xtoudos Services Nig. Ltd & Anor Vs Taise (W.A) Ltd & Anor (2006) LPELR–3504 (SC); Saude Vs Abdullahi (1989) 4 NWLR (Pt.116) 387; Ogunbiyi Vs Ishola (1996) 6 NWLR (Pt.452) 12; Coker Vs UBA Plc (1997) 2 NWLR (Pt.490) 641. PER MBABA, J.C.A.
THE POSITION OF LAW ON THE DUTY OF EVERY APPELLANT
In the case of Kassim Vs The State (2017) LPELR – 42586 (SC), the Apex Court held:
“The duty of every appellant is to show and/or establish that the decision he has appealed was wrong or unreasonable. Every decision of a Court of law, a judicial act, done in a manner substantially regular, is presumed to be correct and that formal requisites for its validity were complied with. The presumption of regularity under Section 167(1) of the Evidence Act, 2011 is all about this.” Per Eko, JSC. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Ebonyi State High Court in Suit No. HAB/50/2015, delivered on 31st July, 2017, by Hon. Justice John Igboji, whereof the learned trial Judge granted the reliefs sought by the Plaintiff for special and general damages, in the sums of N39,000.00 and N200,000.00, respectively, against the Defendants.
Appellants were the Defendants at the lower Court, and the Respondent, herein, Plaintiff, at the lower Court.
At the trial Court the Respondent (as Plaintiff) had sought the following reliefs:
(1) A declaration that the withdrawal of the sum of Thirty Nine Thousand Naira only (N39,000.00) from the Plaintiff’s account number 2066016870 by the Defendants is unlawful.
(2) Thirty Nine Thousand Naira only (N39,000.00) as special damages, being the sum of money withdrawn from Plaintiff’s account.
(3) Five Hundred Thousand only (N500,000.00) as general damages against the Defendants for the act of unlawful withdrawal of the Plaintiff’s money, without her consent.”
Appellants had defended the suit, denying the claims of the Respondent. After hearing the case and considering the evidence and addresses of Counsel, the trial Court held for the Respondent, as follows:
“Before delving into the merits of this case, let me state the obvious, that it is quite disheartening to note that Banks in this Country treat their customers, “the Golden Fleece that lays the golden eggs”, with disdain. Constantly, these customers are at the mercy of these Banks which commit a lot of atrocities against them with impunity, forgetting that without the said customers, there would hardly be any Bank at all.
For instance, interest on loans are varied at will, without recourse to the helpless customers and against existing loan agreements; unnecessary charges are levied on their accounts by the ‘almighty’ Bank; as in the instant case, ATM cards are randomly and carelessly trapped to the disappointment of their customers or debited, without dispensing cash to their chagrin, the list is endless.
I think it is a high time something is done to checkmate the excesses of the Banks against their teeming customers. Let me, at this juncture remind out Banks of the age-long saying that “the Customer is golden.”
Having said this, I must say that the role of the 1st defendant’s staff and witness in this suit, leaves much to be desired. He admitted, under cross-examination, of knowing about “footages” in ATM transactions, but was not emphatic when questioned, if they retrieved the “footages” from the Bank, where the withdrawal took place i.e. Zenith Bank Plc. Had the “footages” been retrieved and tendered, that alone would have determined the issues in controversy.
To say the least, that omission speaks volume and is deemed fatal to the case of the defendants.
I am of the firm view that the Plaintiff has proved her case on the preponderance of evidence, pursuant to Section 121 of the Evidence Act, 2011. See Uwah & Anor Vs Akpabio & Anor (2014) LPELR–SC. 86/2008. Accordingly, judgment is hereby entered in favour of the Plaintiff and I grant the reliefs sought and order as prayed, save relief 3, which is pagged at Two Hundred Thousand Naira (N200,000.00) only. (See pages 124–125 of the Records of Appeal)
Feeling aggrieved, Appellants filed this appeal on 25/9/2017, as per the Notice and Grounds of Appeal on pages 126 to 129 of the Records. They filed their Brief of Arguments on 29/4/2020, which was deemed duly filed, on 15/2/2021, the date this appeal was heard. They distilled two issues for the hearing of the Appeal, namely:
(1) Whether the decision of the lower Court infringed on the appellant’s entitlement to impartial and unbiased adjudication of the case against them and therefore ought to stand. (Ground 1)
(2) Whether on the state of the pleading and evidence before it, was the lower Court legally justified to solely rely on the perceived weaknesses of the appellants’ case, without any assessment of the Respondent’s case, in arriving at the decision that the Respondent’s case was proved on the preponderance of evidence as required by law? (Grounds 2 and 3)
The Respondent filed her brief on 21/5/2020, which was also deemed duly filed on 15/2/2021. The Respondent donated three (3) issues for the determination of the Appeal, as follows:
(1) Whether appeal can lie against remarks or obiter dictum of the trial Judge.
(2) Whether ground 1 of the Appellants’ notice and ground of Appeal and issue 1 in the Appellants’ brief of argument should not be struck out.
(3) Whether from the totality of the evidence on records, the respondent/plaintiff proved her case on preponderance of evidence to be entitled to judgment.
Appellants filed a Reply Brief on 22/6/2020, which was also deemed duly filed on 15/2/2021.
Arguing the appeal on 15/2/2021, Appellants’ Counsel, Emeka Uwakwe, Esq, said the learned trial Judge misdirected himself, in law, when he made observation on pages 124 to 125 of the Records of Appeal (earlier reproduced in this judgment); Counsel said that Appellants did not enjoy impartial adjudication of their cause, guaranteed by Section 36(1) of the 1999 Constitution, as amended; that the scathing remarks made by the trial Court at the outset of the decision, and even before it went into assessment or consideration of the case presented by the parties, was not in accord with the law; that the remarks were not only disparaging of the professional competence and efficiency of the Appellants as bankers, but also undermined and prejudged the merits of the Appellants’ case, ever before the contest began; that by the remarks, the trial Court had already formed pre-existing negative motions against the Appellants, and the indelible prejudice arising, therefrom, on the psyche of the Court became incalculable.
He argued that it was legally offensive for the lower Court to have preconceived notions and views that robbed it of the requisite open-mindedness to administer justice to the parties. He relied on Abalaka Vs Min. of Health (2006) 2 NWLR (Pt.963) 105 at 130. He said that the Judge had disabled himself from doing dispassionate consideration of the case on the merits by so doing. He relied on the case of Usani Vs Duke (2006) 17 NWLR (Pt.1009) 610; Azuokwu Vs Nwokanma (2005) 11 NWLR (Pt.937) 537. He also relied on Popoola & Ors Vs Adeyemo & Ors (1992) 8 NWLR (Pt.257) 1 at 33, where it was held:
“…Evaluation of evidence of a witness should precede his credibility. Once his evidence has been discredited before it is evaluated, it is difficult for the Judge to disabuse his mind about the evidence.” Per Olatawura, JSC
Counsel added that the trial Court had exhibited real likelihood of bias against the Appellants in the course of judicial determination of their civil rights and obligations.
On issue 2, whether the trial Court was justified to solely rely on the perceived weaknesses of Appellants’ case to arrive at the decision, on the preponderance of evidence, Counsel answered in the negative. He said that the lower Court had a duty to accord equal measure of evaluation to the evidence of both parties by ascribing probative value to them, before arriving at the decision as to whose side the evidence preponderates. He relied on Fagbenro Vs Arobadi (2006) 7 NWLR (Pt.978) 172 and other cases.
Counsel said that the trial Court only evaluated the evidence of the Appellants, in total oblivion of the evidence presented by the Respondent, before arriving at its decision; that it did not evaluate the totality of the evidence presented by the two sides, as required by law. He referred us to page 125 of the Records, and the case of Onisaodu Vs Elewuju (2006) 13 NWLR (Pt.998) 517; Okoh Vs Nigerian Army (2018) 6 NWLR (Pt.1614) 176 at 188. He added that the decision of the trial Court is liable to be set aside, being one-sided. He relied on Bassil & Ors Vs Fajebe & Anor 6 NSCQR 259 at 281; Fagunwa Vs Adibi (2004) 17 NWLR (Pt.903) 544; Adetula Vs Akinyosoye (2017) 16 NWLR (Pt.1592) 492 at 518.
Counsel also said that the Exhibit D provided the basis to assess the veracity and authenticity of the testimonies of the PW1 and DW1; that the Exhibit D maintained the same posturing with Exhibit B (tendered by the Respondent), with respect to the issue of whether or not the ATM Card of the Respondent was stuck at the ATM terminal of the 1st Appellant on 17/5/2014. He said that that meant the duo of Exhibits D & B had thereby ascribed the requisite probative value of the oral evidence of the DW1, by supporting and corroborating its slant, on the retrieval of the ATM Card on 17/5/2014 by the Respondent, while in the same breath disparaging the Respondent’s version, that her ATM Card was stuck at the terminal on 17/5/2014.
Counsel submitted that the wrongful approach adopted by the trial Court in arriving at its decision became compounded by the fact that, based on the extant pleadings, it was the Respondent who supplicated for the reliefs in this case against the Appellants, who did not file any counter-claim and as such, their lot was only to defend the case. Thus, the onus was on the Respondent to prove her claim. He relied on Section 131(1)(2) of the Evidence Act, 2011. He added that being a declaratory claims, the Plaintiff had the burden of establishing his claim on the strength of his own case, not on the weakness of the defence. He relied on Nwokidu Vs Okanu (2010) 3 NWLR (Pt.1181) 362; Soronnadi Vs Durugo (2019) 6 NWLR (Pt.1688) 281.
Counsel doubted how the failure of the Appellant to produce the footages retrieved from ATM terminal could translate to proof of Respondent’s case. He argued that it was impossible or improbable for a 3rd party to have withdrawn from the ATM Account of the Respondent at Zenith Bank Terminal, in the circumstances of the case – using her ATM Card and PIN, which was known, only to the Respondent.
He urged us to resolve the issues for Appellant and to allow the appeal.
Responding, Counsel for Respondent, M.A. Iteshi Esq, (who settled the brief), on issue 1, whether appeal can lie against the remarks of the trial Judge, or obiter dictum of the trial Judge, answered in the negative. Counsel said that Appellant, by making a heavy weather about the remarks of the trial Judge, was rather leaving the substance, to pursue shadows. He said that the Appellant was quarrelling with the obiter dictum of the Court, which cannot lie an appeal; that a Judge is entitled to making passing remarks, and an appeal can only be founded on the ratio decidendi of the judgment. He said the issue 1 was founded on the passing remarks of a Court (obiter dictum). He relied on Onafowokan & Ors Vs Wema Bank Plc & Ors (2011) LPELR–2665 (SC), where it was held by the Supreme Court, that:
“Where an opinion is expressed obiter such an opinion is not appealable, because an appeal is fought on the basis of the decision of the Court and is not taken against mere obiter.”
Counsel also relied on Abacha Vs Fawehinmi (2000) 6 NWLR (Pt.650) 229 at 351, and Balonwu & Ors Vs Gov. of Anambra State & Ors (2009) LPELR–728 (SC), where the Supreme Court held:
“Although on a close-examination of the remarks or comments made by the learned Justices of the Court below, which were made the subject of this first ground of appeal, show that they were highly uncomplimentary, touching on the integrity and honesty of the Learned Senior Counsel, all the same, these comments or remarks to me, were mere passing remarks not against the Appellants.”
Counsel, in the same way, said the remarks of the learned trial Judge was not against the Appellants, but against Banks, generally; he said that Appellants’ Counsel had admitted that the remarks were obiter dictum.
On the allegation of bias, Counsel said the law is trite, that for an allegation of judicial bias to succeed, the person relying on it must establish his allegation, based on concrete evidence of extra-judicial factors, such as conduct of person/Judge against whom the allegation is made. He relied on Amaechi Vs Gov. of Rivers State & Ors (2017) LPELR–43065 (CA). Counsel said Appellants’ allegation of bias in this case is floating on water without any legal weight; that Appellant founded the allegation merely on the remarks of the trial Court, pointing out some weak points of banks against their customers – mere obiters that did not touch on the substance of the case, on trial. Counsel admitted that, though a trial Court is expected to confine itself to hearing of the issues presented by the parties in the suit before it, that did not make passing remarks by the Court, by way of obiter dictum, to be ground for an appeal! Amaechi Vs Gov. of Rivers State (supra).
Issue 2 was whether Appellants’ ground 1 and issue therefrom should not be struck out. I think that is not a valid issue for determination, being only a protest or objection to the said issue and ground of appeal, improperly, raised.
Being a Respondent in the appeal, the Respondent had no right/power to raise an issue for determination of the appeal, outside the grounds of appeal, formulated by the Appellant, having not filed a Cross-Appeal or Respondent’s Notice. See Nwaobilo Vs Ahukanna (2018) LPELR–46574 (CA); Duru Vs Duru (2016) LPELR–40444 (CA); Fayemi Vs Oni & Ors (2019) LPELR–49291 SC.
Of course, where a Respondent has a problem with any ground(s) of appeal (and the issue distilled therefrom), he is expected to file a motion to that effect, addressing the defect and arguing same in his brief of argument. See Nwaolisah Vs Nwabufoh (2011) LPELR–2115 (SC); (2011) (Pt.1268) 600; Ashilonu & Anor Vs Ohale & Anor (2018) LPELR–44267 (CA). Respondent did not do that in this appeal, but rather, went straight to fault the ground of appeal and issue therefrom, urging us to strike it out (as his issue for determination of the appeal!) I rather strike out his alleged issue for determination, being incompetent.
On issue 3, whether the trial Judge was right to hold that the Respondent had proved her claim on the preponderance of evidence, Counsel answered in the affirmative. Counsel said the trial Court had weighed the evidence of both sides and that it was clear that the evidence in support of the Respondent’s claim preponderated over and above the incoherent evidence of the Appellant, which he said was self defeating and fraught with inconsistencies and contradictions. Counsel relied on the case of Okorie Vs Unakalamba & Anor(2013) LPELR–22508 CA and said that failure of the Appellant to produce the footages of the withdrawals at Zenith Bank terminal, to prove that it was Respondent that withdrew the money, had to be presumed against Appellant, pursuant to Section 149(d) of the Evidence Act. Counsel relied on the case of Eriki Vs Eriki & Ors (2017) LPELR–42423 CA and Ganiyu Obatula Vs Chief Wilkay (2007) LPELR–4187 (CA), on the meaning of evaluation of evidence – that it involves the assessment of evidence so as to give value or quality to it, and there must be on record, how the Court arrived at its conclusion of preferring one piece of evidence to the other. Counsel referred us to page 124 of the Record, where he said the trial Court highlighted the evidence adduced by the two sides and placed them side by side, before preferring the Respondent’s evidence or case to that of the Appellants.
Counsel urged us to resolve the issues against the Appellants and to dismiss the appeal.
RESOLUTION OF THE ISSUES
In his Reply Brief Appellants argued that the Respondent had distilled her issues 1 and 2 from a single ground of Appeal – ground 1; that amounted to proliferation of issues. He relied on Nwaigwe Vs Okere (2008) 13 NWLR (Pt.1105) 445; Osazuwa Vs Isisbor (2004) 3 NWLR (Pt.859) 16 (among other cases).
I have already struck out the Respondent’s issue 2 for being incompetent. It must also be stated that the Respondent, having distilled the issue 1 from the ground 1 of the appeal, the said ground of appeal was no longer available to give birth to another issue for determination of the appeal. See A.G. Imo State & Anor Vs Imo Rubber Estates Ltd & Ors (2019) LPELR–47579 (CA); and Aduba & Ors Vs Aduba (2018) LPELR–45756 (CA), where it was held:
“It should however be noted that Appellant had distilled their issue 1 from grounds 1, 2 and 5 of the grounds of appeal and thereafter distill issue 3 from… the same ground 1 of the appeal… Having earlier use the ground 1 of the appeal… to distill the issue 1 of the appeal, together with grounds 2 and 5, the said ground 1 was no longer available to donate another Issue for the determination of the appeal. See Egbebu Vs I.G.P. & Ors (2016) LPELR–40225 (CA).”
I think the real issue for the determination of this appeal are two:
(1) Whether the trial Judge had correctly evaluated the evidence adduced by the parties to arrive at his decision that Respondent’s evidence did preponderate over that of the Appellant.
(2) Whether observation and remarks by the trial Judge about banks’ failures generally to protect the interest of their customers and exposing them to hazards and injuries, evinced bias by the Court against Appellants, and so disqualified the Judge from proceeding with the case; and whether such observations and remarks were appealable.
I shall, however, take the issue 2, first.
I must start by admitting that the learned trial Judge made some scathing remarks about Banks, generally and their attitude to customers; probably, angered by the way the evidence in the case revealed the handling of the complaint of the Respondent by the Bank (Appellants). The Court had said:
“Before delving into the merits of this case, let me state the obvious, that it is quite disheartening to note that Banks in this Country treat their customers, “the Golden Fleece that lays the golden eggs”, with disdain. Constantly, these customers are at the mercy of these Banks which commit a lot of atrocities against them with impunity, forgetting that without the said Customers, there would hardly be any Bank at all.
For instance, interest on loans are varied at will without recourse to the helpless customers and against existing loan agreements; unnecessary charges are levied on their accounts by the ‘almighty’ Bank; as in the instant case, ATM Cards are randomly and carelessly trapped to the disappointment of their customers or debited, without dispensing cash to their chagrin, the list is endless.
I think it is a high time something is done to checkmate the excesses of the Banks against their teeming customers. Let me at this juncture remind out Banks of the age-long saying that “the Customer is golden.”
Having said this, I must say that the role of the 1st defendant’s staff and witness in this suit leaves much to be desired. He admitted, under cross-examination of knowing about “footages” in ATM transactions, but was not emphatic when questioned, if they retrieved the “footages” from the Bank where the withdrawal took place i.e. Zenith Bank Plc. Had the “footages” been retrieved and tendered, that alone would have determined the issues in controversy.
To say the least, that omission speaks volume and is deemed fatal to the case of the defendants.”
I think those were valid observations, which any serious Banker would have noted and learnt from, as the same cannot be divorced from the general/common experiences of those familiar with banking operations, particularly, internet/electronic banking, and the common frustrations associated with same. Surprisingly, Appellants and their Counsel, instead of taking the remarks to heart, as bankers, rather threw up tantrum, and gave the impression of the one not ready to learn, or take rebuke!
The law, however, expects a Judge to maintain restraint, and confine himself to the issues raised by the parties before him and to pronounce on the same, without wandering to side issues. See Obiukwu Vs Ugwueruchukwu & Ors (2019) LPELR – 46616 (CA):
“A Judge must act and pronounce on the case and issues properly brought before it, based on the fact and evidence adduced, and is not permitted to wander from the case and issues raised, to scout for evidence to make a case for or support the wish and/or fantasy of any party. See the case of Suberu Vs The State (2010) LPELR–3120 SC; (2010) 8 NWLR (Pt.1197) 586; Ajuwon Vs Akanni (1993) 9 NWLR (Pt.505) 422; Olorunfemi & Ors Vs Asho & Ors (1999) 1 NWLR (Pt.585) 1; Obi Vs A.G. Imo State (2014) LPELR–24280 CA.
In Ardo Vs INEC & Ors (2017) 41919 (SC), it was held:
“The law is well settled, that when parties join issues on a particular subject matter, the only duty saddled on the Court is to proceed to deliver judgment on those issues. See Metal Construction (W.A.) Ltd & 2 Ors Vs Migliore & Anor (1979) SC…”
But the fact that a Judge had wandered from the main issues before it to make some general observations and scathing remarks and/or castigations, does not make such observations and remarks a ground of appeal for seeking to nullify the decision of the Court, on appeal, when such remark or observation does not form the basis of the judgment of the Court i.e. the ratio decidendi of the judgment, being only an opinion or observation by the Court (obiter dictum) in the course of its judgment. See the case of Balonwu & Ors Vs Gov. of Anambra State & Ors (2009) LPELR –729 SC, where the Supreme Court said:
“A ground of appeal must be directly relevant and must derive from the issues determined in the judgment of the Court below, …An appellate Court limits itself onto issues determined by the Court below… Although, on a close examination of the remarks or comments made by the learned justices of the Court below which were made subject of this first ground of appeal show that they were highly uncomplimentary touching on the integrity and honesty of the learned Senior Counsel, all the same, these comments or remarks to me, were mere passing remarks not against the appellants.”
The law and judicial procedure/process permits a Judge to make comments and express himself, by way of passing remarks, in his judgment, which is commonly referred to a “obiter dicta”, without risking being abused or penalized for it, and such comments and remarks, as earlier stated, are not appealable. See Amaechi Vs Gov. Rivers State & Ors (2017) LPELR – 43065 (CA).
The law is trite, that appeals are not founded on passing comments (obiter dicta) of a Court. See Nwosu Vs PDP & Ors (2018) LPELR–44386 (SC); Xtoudos Services Nig. Ltd & Anor Vs Taise (W.A) Ltd & Anor (2006) LPELR–3504 (SC); Saude Vs Abdullahi (1989) 4 NWLR (Pt.116) 387; Ogunbiyi Vs Ishola (1996) 6 NWLR (Pt.452) 12; Coker Vs UBA Plc (1997) 2 NWLR (Pt.490) 641.
I cannot therefore find anything in the observations and remarks of the learned trial Court to justify Appellants’ claim that the trial Court evinced bias against them, and the same disqualified it from proceeding to determine the suit.
Did the trial Court properly evaluate the evidence to come to conclusion that the preponderance of evidence was in favour of the Respondent?
A brief facts of this case at the lower Court shows that the Respondent was a Customer of the 1st Appellant holding account and Automated Teller Machine (ATM) Card of the 1st Appellant, and on the date in question, 17/5/2014, had gone to make withdrawals through her ATM Card, at 1st Appellant’s branch at 4B Ogoja Rd, Abakaliki; she inserted her card (the ATM Card) into the machine, but the same was trapped, unfortunately, in the machine. She quickly called the attention of the 2nd Appellant, an Officer of the 1st Appellant, to help her recover the ATM Card. The 2nd Appellant rather rebuffed her and told her to come back on Monday 19/5/2014, for the card to be retrieved for her, 17/5/2014, being a Saturday. After further begging and crying for the help of 2nd Appellant, the 2nd Appellant told her, finally, to come back (later) on the said 17/5/2014 for him to open the machine and bring out her card. He did not. In frustration she decided to trek home, since she had no money to pay transport. Immediately, she left the bank premises, on her way home, she got a debit alert of N19,000.00 (Nineteen Thousand Naira) and another for N20,000.00 (Twenty Thousand Naira), respectively, on the same 17/5/2014.
Upon getting the alert, she was shocked, having not carried out the said transactions. She quickly recalled the 2nd Appellant’s refusal to assist her retrieve the ATM Card, and became more angry and worried.
On 19/5/2014, she went back to the Appellants, as directed by 2nd Appellant. She requested to see the Manager of 1st Appellant and was directed to the same 2nd Appellant, as the Manager. She told 2nd Appellant to refund the money (N39,000.00) withdrawn from her account while the card was stocked. The 2nd Appellant did not give her attention; later, another staff came out to say he (the other person) was the actual manager of the Bank branch and upon seeing the actual manager, she narrated her story and experience she narrated her story and experience on 17/5/2014, and after listening, the manager requested for patience to enable him investigate the complaint. She said after waiting for a long time, without hearing from the Appellants, she caused her lawyer to write to the Bank on 8/10/14. Appellants replied to her letter on 26/11/2014, wherein they said that the withdrawals she complained about were done at Zenith Bank ATM Terminal. Respondent said she never went to the Zenith Bank Terminal on 17/5/2014, since her ATM Card was already entrapped at the 1st Appellant’s machine. She caused another letter to be written to Appellant on 13/4/2015 for the refunds of her money and had to approach the Court, upon Appellants’ refusal to refund the illegal withdrawal. See Respondent’s Statement on Oath on Pages 8 to 10 of the Records of Appeal, which she adopted at the trial and tendered the letters.
Appellants appeared to have admitted the event of 17/5/2014, when Respondent’s ATM Card was entrapped; in his statement on oath, the 2nd Appellant said, in paragraphs 2 and 3 of his averments, as follows:
“2) That on 17/5/2014 before the afternoon time, the Plaintiff initiated and concluded enquires with her Automated Teller Machine Card (hereinafter referred to as “ATM”) at the 1st defendant’s business premises at No. 48 Ogoja Road, Abakaliki.
3) That in specific answer to paragraphs 5, 6, 7, 8, 9 and 10 of the Statement of Claim. I contend, as follows:
A. The Plaintiff came to the branch office of the 1st Defendant at No. 4B Ogoja Road, Abakaliki on 17/05/2014, which was a Saturday in the morning hours.
B. That on the said 17/5/2014, which was a Saturday, commercial banks like the 1st Defendant do not open to Customers or members of the public and to which the Plaintiff is no exception.
C. That bank transactions on weekends and public holidays are only carried out in the 1st Defendant’s branches, through ATM outlets that were opened to customers and restricted only to electronic transactions.
D. That electronic transaction can be accessed by a customer with his ATM Card, which is not only customized and personalized, but also has a pin number, which is only known to the Customer and owner of the ATM Card.
E. That at 11.57 am on 17/5/2014, the Plaintiff initiated an ATM transaction and carried out a successful inquiry on her account.
F. That after this first transaction, the Plaintiff attempted to initiate another transaction, but entered the wrong account type in the process, and as such the transaction was aborted. This second transaction was carried out at 11:58:03am on 17/5/2014 at 11:58:29am, the transaction cycle was completed and the Plaintiff’s card was retrieved from the ATM.
G. That contrary to the allegations of the Plaintiff, her card was not trapped in the ATM located in the business premises of the 1st Defendant at No.4B Ogoja Road, Abakaliki.
H. That at about 12:00 noon, the Plaintiff approached me when I came to the ATM Terminal at No.4B Ogoja Road to attend to a faulty ATM and pleaded for assistance to retrieve her ATM Card which allegedly trapped in the ATM she used.
I. That based on this allegation from the Plaintiff, I told her to come back on 19/05/2014, which is the next working day so that she would be properly attended to on normal working banking hours.
J. That my above was informed by the fact that in the occasional instances of trapped ATM Card, the usual and normal banking practice is that the customer has to be attended to during working hours so that her claim would be verified by checking the customer’s mandate on the computer and have the same signed off before collection of the ATM Card, which would have been retrieved from the ATM.
K. That in giving the above advice, I was strictly relying on what the Plaintiff told me to the effect that her ATM Card was trapped in the ATM…
7). That it is true that there were withdrawals from the account of the Plaintiff of the sums of N19,000.00 (Nineteen Thousand Naira) and N20,000.00 (Twenty Thousand Naira) respectively on 17/05/2014.
8) That the said withdrawals were not made in any of the 1st Defendant’s ATM Terminals in Abakaliki. The said transaction were done in an ATM Terminal belonging to Zenith International Bank (ZIB) in Abakaliki as was discovered during investigation of the matter.
9) The Plaintiff came to the 1st Defendant’s branch office on 19/05/2014 and requested to see the bank manager and was referred to me as the operations manager of the 1st Defendant’s Branch Office…
10) That as Operations Manager… matters in the nature of the Plaintiff’s complaint are well within my job schedule as the operations manager. I am the person that handles issues emanating from ATMs and ATM related matters.
11) That the Plaintiff refused to listen to anything that I was to say, outside refunding her the claimed N39,000.00 (Thirty Nine Thousand Naira) only, and creating a scene in the bank by shouting on top of her voice and which led to the interference of the Business Manager of the 1st Defendant’s Branch office at No. 4B Ogoja Road, Abakaliki.
12) That the Plaintiff met with the 1st Defendant’s Business Manager, to whom she also reported that N19,000.00 and N20,000.00 (totaling the sum of N39,000.00) were withdrawn from her account on 17/05/2014. The Plaintiff claimed the transaction was neither initiated nor authorized by her.
13) That the Plaintiff was assured by the 1st Defendant’s business manager that he will cause an investigation into the complaint and urged the Plaintiff to exercise some patience, which the Plaintiff accepted.
14) That on the same 19/05/2014, when the Plaintiff arrived… the captured/retracted and log/records for ATM was checked and it could not corroborate or confirm the Plaintiff’s claim that her ATM Card was retracted.
15) That immediately after the discovery on 19/05/2014, the Plaintiff was nowhere to be seen in the banks premises and efforts to reach her through GSM No. 08060462156, provided during the opening of her account, proved abortive as it was switched off.
16) That a letter addressed to the 1st Defendant was served on it in demand of the repudiated sum of N39,000.00 by the Plaintiff’s Solicitor, U.M. Usulor & Associates dated 08/10/2014.
17) That the complaint of the Plaintiff was duly investigated by the Forensic Investigation Department of the 1st Defendant and the findings of which formed the basis of the 1st Defendant’s Legal Division’s letter dated 26/11/2014.
18) That the withdrawal of the cumulative sum of N39,000.00 from the Plaintiff’s account was made by her ATM Card and from the premises of the Zenith Bank Plc and by a person in possession of the Pin number and other details known only by the Plaintiff or somebody she authorized with such details… (See Pages 31 to 34 of the Records of Appeal)
I think the above detailed averments of the 2nd Appellant, was quite revealing of the lackadaisical way he and the 1st Appellant worked and handled the Respondent’s complaint, and her frustration on the 17/5/2014. The averment of the 2nd Appellant was full of contradictions, and non-committal to addressing the worries and trauma of the Respondent, when her ATM card was trapped, a usual experience of many with ATM operations, with Banks.
He (2nd Appellant) tried to deny the trapping of Respondents ATM Card, claiming she did her balance inquiry transaction successfully, at 11:57am and that “she entered the wrong account type in the process” of a second transaction, at 11:58:03, after a successful first attempt; that the second transaction was aborted, because of the wrong entry; but that the transaction cycle was completed and the Plaintiff’s Card was retrieved from the ATM! (See Paragraphs 3(E) and (F)).
The above suggests the 2nd Appellant was closely monitoring the Respondent – to know when she entered a wrong account type which aborted the transaction! And after claiming that she retrieved the ATM Card, and that “contrary to the allegations of the Plaintiff, her Card was not trapped in the ATM located in the business premises of the 1st Defendant No. 4B Ogoja Road Abakaliki”, Appellant somersaulted on paragraph 3(H) & (I) saying:
“That at about 12:00 noon, the Plaintiff approached me, when I came to the ATM terminal at 4B Ogoja Road to attend to a faulty ATM and pleaded for assistance to retrieve her ATM Card which was allegedly trapped in the ATM she used; that based on this allegation from the Plaintiff, I told her to come back on 19/05/2014, which is the next working day so that she would be properly attended to on normal working banking hours.”
Part of the underlying admissions in the above averment is that there was a faulty ATM, which the 2nd Appellant came to attend to, and the Respondent pleaded with him to help retrieve her ATM Card; he told her to come back on Monday 19/05/2014. Yet, he deposed in paragraph 10 of the affidavit evidence, that he was operations manager and as such “the person that handled issues emanating from ATMs and ATM related matters!”
The tragedy of the whole story is the fact that, when Respondent obeyed the 2nd Appellant and left the ATM Terminal, frustrated, hoping to return on Monday 19/5/2014, on her way home, she started to receive alert of withdrawals of money from her said account – twice (N19,000.00 and N20,000.00), when her ATM Card was supposedly still being trapped in the ATM, at Appellants’ premises!
Appellants supplied information on how and where the withdrawals were made. That, someone used the Respondent’s ATM card and pin number to withdraw the money at ATM Terminal belonging to Zenith International Bank (ZIB) in Abakaliki (Paragraph 8 of the averment). But in Paragraph 18 of the averment, 2nd Appellant said:
“That the withdrawal of the cumulative sum of N39,000.00 from the Plaintiff’s account was made with her ATM card from the premises of the Zenith Bank Plc and by a person in possession of the pin number and other details known only by the Plaintiff or somebody she authorized with such details.”
Definitely, 2nd Appellant knew about the withdrawals and owed a duty to disclose and reveal the person who did the same! Under cross-examination, in Court, the 2nd Appellant admitted that:
(1) He attended to the complaint of the Plaintiff and requested her to come on Monday, the day of the incident being a Saturday;
(2) That the complaint of the Plaintiff was investigated, but he was not part of the investigation;
(3) That the “footages” from the Bank where the withdrawal in issue was made (Zenith Bank) is yet to be retrieved;
(4) That they did not request for the “footages” in writing, but believed a request was made. (See the findings of the trial Court on Page 124 of the Records of Appeal)
There was evidence from Respondent, that even when she went on 19/5/2014, when Appellants requested that she should come to get/her trapped card, the Card was not given to her, and has still not been given, hence the suit. See Page 124 of the Records, where the trial Court said:
“… her ATM Card was trapped sometime in May 2014 (a Saturday) and she went to collect same the following Monday, but it was not given to her, hence the present suit.”
It is, therefore, difficult for me to understand where the learned Counsel for the Appellants got the inspiration to accuse the trial Court of bias and for “evaluating only a segment of the oral evidence adduced by the Appellants, while it not only maintained a sealed lips, but indeed turned a blind eye to the Appellants’ exhibit D during its said evaluation at page 125 lines 6–15 of the Records.”
Such intemperate language should never be used by a Counsel against a Judge, for whatever reason, especially, where the Judge was doing his assigned duties, properly. Often, a lawyer/Counsel would accuse a Court of not considering or evaluating the evidence adduced by his client, but this one, Counsel rather accuse the Court for “evaluating only a segment of the oral evidence adduced by Appellants” and not that of Respondent. It sounds strange!
I cannot fault the evaluation and findings of the learned trial Court, on page 125 of the Records, when it said:
“… I must say that the role of the 1st Defendant’s staff and witness in this suit leaves much to be desired. He admitted under cross-examination of knowing about “footages” in ATM transactions, but was not emphatic when questioned, if they retrieved the “footages” from the Bank, where the withdrawal took place i.e. Zenith Bank Plc. Had the “footages” been retrieved and tendered, that alone would have determined the issues in controversy. To say the least, that omission speaks volume and is deemed fatal to the case of defendants.”
Appellants, certainly, had a duty to produce evidence that the withdrawal of the N39,000.00 was by the Respondent or on her authority, having admitted that the amount was withdrawn on the said 17/5/2014; that it was drawn at Zenith Bank Plc (or Zenith International Bank (ZIB) – hoping they mean the same bank!), while the Respondents had complained that her ATM Card was trapped at Appellants’ premises, at 4B Ogoja Road, Abakaliki! Failure to produce that evidence, particularly the footages, which 2nd Appellant admitted was available, to show who withdrew the money, was correctly presumed against Appellants by the trial Court; that it was fatal to their defence. Section 167(d) of the Evidence Act, 2011, therefore stood to be invoked, that if the footages were produced by the Appellants, the same would have been against the Appellants. It shows that Appellants had something to hide. See Azubuike Vs The State (2019) LPELR – 48238 (CA); The Peoples of Lagos State Vs Umaru (2014) LPELR – 22466 (SC).
In the case of Kassim Vs The State (2017) LPELR – 42586 (SC), the Apex Court held:
“The duty of every appellant is to show and/or establish that the decision he has appealed was wrong or unreasonable. Every decision of a Court of law, a judicial act, done in a manner substantially regular, is presumed to be correct and that formal requisites for its validity were complied with. The presumption of regularity under Section 167(1) of the Evidence Act, 2011 is all about this.” Per Eko, JSC.
I think the above position of law is wholly applicable to this case, especially as Appellants never appealed against the findings and holding of the trial Court, that failure to produce the evidence of “footages” of the withdrawal of the N39,000.00, allegedly by Respondent or someone on her authority, was fatal to their defence, having admitted the complaint of Respondent, that the withdrawal was done, while Respondent’s ATM Card was trapped at Appellants’ premises, with the knowledge of the 2nd Appellant, who told Respondent to come back on Monday (working day) for the trapped Card.
The law is that findings of Court not appealed against remains binding and conclusive. Nwaobilo Vs Ahukanna (2018) LPELR–46574.Instead of appealing that finding/holding of the trial Court, Appellants were rather quarrelling with the way the trial Court evaluated the evidence, saying that the preponderance of evidence was in their favour and that the Court relied on the weakness of the defence to give judgment to Respondent (Plaintiff). That is not correct, as the Respondent had proved the unlawful withdrawals from her account, while her ATM Card was trapped by the Bank (Appellants).
I therefore resolve the Issues against the Appellants and dismiss the Appeal. Appellants shall pay the cost of this appeal assessed at One Hundred Thousand Naira (N100,000) to the Respondent.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, before now, the judgment just delivered by my learned brother, ITA G. MBABA, JCA. I agree with his reasoning and conclusion that the appeal is unmeritorious.
I dismiss the appeal and abide by consequential orders contained in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother, ITA GEORGE MBABA, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally hold that the appeal is devoid of merit and it is accordingly dismissed.
I adopt the consequential orders in the lead judgment as mine.
Appearances:
EMEKA UWAKWE, ESQ. For Appellant(s)
M.I. ITESHI, ESQ., with him, J.N. NWEKE (MRS.) who adopted it. For Respondent(s)