DIAMOND BANK LIMITED v. MOCOK ONU NIGERIA LIMITED
(2019)LCN/13850(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/C/285/2017
RATIO
CAUSE OF ACTION: A PLAINTIFF OR CLAIMANT MUST SHOW CAUSE OF ACTION IN HIS PLEADINGS
In other words, a plaintiff/claimant must show by his pleadings that he has a cause of action maintaining in a Court of law against the defendant.He cannot sue just anybody but someone who has wronged him one way or the other. See BELLO V A.G. OYO STATE (1986)5 NWLR (pt 45)828, IBRAHIM V OSIM (198B) 3 NWLR (pt 82) 257, TUKUR V GOVT. GONGOLA STATE (NO.2) (1989)4 NWLR (pt 112) 517, NICON INSURANCE CORPORATION V OLOWOFOYEKU (2006) 5 NWLR (pt 973) 244 and REBOLD INDUSTRIES LTD V MAGREOLA (2015) 8 NWLR (pt 1467) 210. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
CAUSE OF ACTION: HOW A COURT CAN DETERMINE THE EXISTENCE OR NOT OF A CAUSE OF ACTION IN A PLEADING
In determining the existence or non-existence of a cause of action in a suit, the Court is to consider the Writ of Summons and the statement of claim. And what distinguishes a claim which discloses cause of action from the one that does not is that where a statement of claim discloses some reasonable cause of action on the facts alleged in it, it is where the claim has some chances of success and once it raises some issues of law or fact calling for determination by the Court. Put differently, it is irrelevant to consider the weakness of the plaintiff?s claim but whether it raise some questions fit to be decided by a Court. And for a statement of claim to be said to disclose no cause of action it must be such as nobody can understand what claim he is required to meet. See TIKA ? TORE PRESS LTD V UMAR (1968)2 ALL NLR 107. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
DUTY OF A BANKER TO ITS CUSTOMER
The Banker’s duty to exercise reasonable care and skills stretches over the whole range of banking business within the ambit of the contract with the customer. This duty applies to interpreting, ascertaining and acting in accordance with the instruction of the customer. See N.N.B. LTD V ODIASE (1993) 8 NWLR (pt 310) 235, FIRST BANK OF NIGERIA LTD V AFRICAN PETROLEUM LTD (1996) 4 NWLR (pt 443) 438, U. B. A. V FOLARIN (2003) 7 NWLR (pt 818) 18, AGBANELO V UNION BANK PLC (2000) 7 NWLR (pt 666) 534 and LINTON INDUSTRIES. TRADING CO. (NIG) LTD V C.B.N. (2015) 4 NWLR (pt. 1447) 94. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
BURDEN OF PROOF IN CIVIL CASES
The general rule in civil cases is that the burden of proof rests upon the party who substantially assert the affirmative before the evidence is gone into. Therefore, the burden of proof lies on the person who will fail assuming no evidence had been adduced on either side. See Section 133 (i) of the Evidence Act, 2011. In the instant case, the respondent asserted that the resultant failure and or negligence in effecting the fund transfer has caused it loss, therefore it has the burden of proving that assertion. Where the plaintiff as in this case, pleads and relies on negligence by conduct or action of the defendant, the plaintiff must prove by evidence the conduct or action and the circumstances of its occurrence, which give rise to the breach of the duty of care owed the plaintiff. And that it is only after this, that the burden shifts to the defendant to adduce evidence to challenge negligence on his part. See U.T.B. (NIG) V OZOEMENA (supra). PER MUHAMMED LAWAL SHUAIBU, J.C.A.
CIRCUMSTANCES WHEN A CLAIM OF NEGLIGENCE WILL ARISE
The approach to a claim in negligence comes into operation in the following circumstances:
(a) On proof of the happening of an unexplained occurrence;
(b) When the occurrence is one which would not have happened in the ordinary course of things without the negligence on the part of somebody other than the plaintiff and
(c) The circumstances point to the negligence in question being that of the defendant rather than that of any other person.
See F.B.N. PLC V BANJO (2015) 5 NWLR (pt 1452) 253. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
APPEAL: ISSUES FOR DETERMINATION: ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL
It is settled that an issue or issues for determination must arise from the grounds of appeal relied upon. Where an issue formulated is not based on the ground of appeal filed; the legal effect is that it is on that account irrelevant. See UGO V OBIEKWE (1989), NWLR (pt.99) 566, OSINUPEBI V SAIBU (1982) 7 SC 104, WESTERN STEEL WORKS LTD V IRON & STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (pt 49) 284 and NSIRIM V AMADI (2016) 5 NWLR (pt 1504) 42. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
Before Their Lordships
OBANDE FESTUS OGBUINYAJustice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBUJustice of The Court of Appeal of Nigeria
Between
DIAMOND BANK LTDAppellant(s)
AND
MOCOK ONU NIGERIA LTDRespondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State sitting in Calabar delivered on 7th July, 2017 in Suit No. HC/308/2016 by HON. JUSTICE EDEM ITA KOOFFREH where
in judgment was entered in favour of the claimant against the defendant in the sum of three million Naira being compensation and exemplary damages for the defendant?s negligence.
By Writ of Summons and statement of claim filed on 22/6/2016, the plaintiff now respondent claimed against the appellant herein as follows: –
(a) N500 million on the footing of compensatory and exemplary damages for the defendant?s negligence by failing to transfer funds from the plaintiff?s account to Mathew Egbeji.
Upon being served with the originating processes, the defendant denied that it was negligent in carrying out the request of the claimant and therefore not liable. After exchange of pleadings the matter proceeded to trial with parties leading evidence and tendering documentary exhibits.
At the end of the trial, the Court below entered judgment against the defendant in the sum of N3,000,000.00 as compensation and exemplary damages for negligence. Dissatisfied with the judgment, the defendant now appellant filed this appeal on 17/7/17 setting out five grounds of appeal at pages 81- 86 of the record of appeal.
Distilled from the said five grounds of appeal, learned counsel for the appellant, Attah Ochinke, Esq. formulated three issues for the determination of this appeal as follows:
1. Whether the learned trial judge was right when he held that the respondent disclosed a reasonable cause of action against the appellant and that the appellant breached a duty of care to the respondent.
2. Whether the finding of the learned trial judge that ?the negligence in this case is not the failure of the transaction per se, but the failure of the transaction and the non-recrediting of the claimant?s account on time and also not informing of the failed transfer? is not self-contradictory.
3. Whether the learned trial judge was right to have awarded against the appellant the sum of N3,000,000.00 (Three Million Naira) as compensation and exemplary damages for the defendant?s negligence.
In the respondent?s brief of argument, learned counsel, Chief Okey Obikeze, formulated four issues for the determination of this appeal. These are: –
1. Whether the learned trial judge was wrong when he disagreed with the appellant that the respondent has no reasonable cause of action against the appellant.
2. Whether from the facts of this case, the appellant was not negligent in handing the Fund Transfer Request placed on it by the respondent.
3. Whether the learned trial judge is justified in refusing to grant respondent?s claim.
4. Whether the amount of N3,000,000.00 awarded on the footing of compensatory and exemplary damages against the appellant in favour of the respondent is not ridiculously too small and an erroneous assessment of the damages.
5. Whether the learned trial judge was right in not making an award of cost to the Respondent/Cross Appellant in the circumstances of this case.
Learned counsel for the appellant argued that the facts that gave rise to the negligence alleged against the appellant were not pleaded by the respondent and no evidence was led to prove same.
He submitted that negligence is actionable only if actual damage is proved as negligence alone without more does not give a cause of action. He further submitted that the respondent as claimant did not lead evidence to establish the duty of care the appellant owed it in the handling of the funds transfer that was allegedly breached. The respondent did not also, plead or show or establish the consequential damage(s) it suffered as a result of the alleged negligent act of the appellant in handling of the funds transfer which is the subject matter of the respondent?s suit that gave rise to this appeal. He referred to UTB (NIG) V OZOEMENA (2007) 3 NWLR 448 at 464 and FLASH FIXED ODDS LTD V AKATUGBA (2001) 9 NWLR (pt 717) 46 at 61.
Learned counsel also submitted that the trial Court had absolved the appellant of negligence in handling of the fund transfer instruction of the respondent when at page 77 lines 4-5 agree that NIBSS is responsible for inter-Bank transfer of Funds and that there can be failures in the transfer as in this case. Thus having absolved the appellant of negligence, the learned trial judge was wrong to have found that the respondent disclosed a cause of action against the appellant and that the appellant breached a duty of care against the respondent.
On issue two, it was contended on the appellant?s behalf that there was no scintilla of evidence to support the lower Court?s finding that the appellant was aware of the respondent?s failed transfer but failed and or neglected to inform the respondent which resulted in its loss of business deal and trust from its client. It was thus submitted that the learned trial judge made out a case for the respondent and thereby occasioning miscarriage of justice against the appellant. He referred to COMMISSIONER FOR WORKS BENUE STATE & ANOR V DEVCON LTD (1988)3 NWLR (pt 83) 407 at 408, NDIC V SBN PLC (2003)1 NWLR (pt 807) 311 at 366 ? 367, EAGLE SUPER PACK (NIG) LTD V ACB PLC (2006) 19 NWLR (pt 1013) 20 at 56 and hosts of other cases to the effect that the Court is bound by the relief (s) sought.
On issue three learned counsel referred to the averments in paragraph 1 of the statement of claim and statement of defence respectively and the evidence elicited from the respondent?s witness in relation to loss of business deal and trust which the learned counsel submitted is a hearsay evidence and inadmissible. He also referred to OJIAKO V STATE (1991) 7 NWLR (pt 175) 578 at 554, IFEGBU & V U.B.N. PLC (2011) FWLR (pt 602) 1676 at 1702 and DAMINA V AKPAN (2011) ALL FWLR (pt 580) 1298 at 1311. He further submitted that in the absence of legally admissible evidence in respect of the damage allegedly suffered as a result of the appellant?s alleged negligence, the learned trial judge was wrong to have awarded N3 Million against the appellant as compensation and exemplary damages. He concluded that the award of damages that was not based on any principle of law or evidence was therefore unwarranted and unreasonable deserving only to be set aside.
On his issue one, learned counsel for the respondent argued that in determining whether there exists a reasonable cause of action, the Court is to confine itself to the Writ of Summons and the statement of claim. That an examination of the respondent?s claim reveals the complaint of the respondent for which it came for redress. Thus, the bundle of facts averred by the respondent as constituting particulars of the appellant?s negligence was pleaded at paragraph 6 of the statement of claim. He submitted that once the statement of claim raises some issues of law or fact calling for determination by the Court, the mere fact that the case is weak and not likely to succeed is not a ground of holding that the case did not disclose any cause of action. He referred to THOMAS V OLUFOSOYE (1986) NWLR (pt 18) 669 at 682, CHUKWU V AKPELU (2014) 13 NWLR (pt 1424) 359 at 380, AG KWARA V OLAWALE (1993)1 NWLR (pt 272) 645 at 675 and IDACHABA V ILONA (2007)6 NWLR (pt 1030) 277.
On issues two and three which are argued together, learned counsel argued that the appellant owes its customers such as the respondent a duty of care which duty applies to interpreting, ascertaining and acting in accordance with the instruction of the customer. Thus, the appellant owes a duty to exercise reasonable care and skill in acting in accordance with instructions of the respondent in handling the Funds Transfer Request made on the appellant by the respondent. He contended that what the appellant tried to do was to place the breach of its duty to a third party, the Nigerian Inter-settlement Banking switch (NIBSS) and washed off its hand from any fault or neglect in the handling of the respondent?s funds transfer request. However, despite the fact that the appellant knew that the funds transfer request has failed on 6/3/2015, it waited till 10/3/2015 before informing the respondent and also re-crediting the respondent?s account. He submitted that the respondent having waited was subjected to grave damage by the poor handling of the said Funds transfer request. Hence, the learned trial judge rightly found that the failure of the transaction and non re-crediting of the respondent?s account on time as well as failure to promptly notify the respondent of the failed transfer accounted to its finding that the appellant was negligent.
On issue four, it was contended that the negligence of the respondent resulted in it not being able to get the supply of products ordered from Mathew Egbeji. The respondent abruptly closed production and its staff and workers were unable to work resulting in colossal economic loss to the respondent. Also the beneficiary of the funds transfer who is the major supplier of raw materials for the respondent?s production began to see the respondent as irresponsible and unreliable and thus stopped dealing with respondent with consequential loss of revenue. There was therefore basis for the award of compensatory and exemplary damages for the defendant?s negligence, concluded learned counsel for the respondent.
He further submitted that the award of damages being an exercise of discretion an appellate court is slow in interfering except where it is perverse and or where the amount is ridiculously low or high which is not the case here. Also where a party seeks to challenge the reasoning of the trial court in arriving at the quantum of an award, such party can only do so by way of an appeal and or by way of respondent?s notice. He referred to OGUNBADEJO V OWOYEMI (1993)1 SCNJ 148. SAIDU H. AHMED & 2ORS V C.B.N (2012) 7 SC (pt 11)1 and UBN LTD V ODUSOTE BOOKSTORE LTD (1994)12 SCNJ 175.
I have carefully considered the argument of counsel on both sides in relation to the above formulations. However, the appellant?s issues are preferred by me. The three issues formulated by the appellant are apt, concise and quite apposite to the just determination of this appeal. I shall therefore determine this appeal in the light of the three issues formulated by the appellant.
Issue one attacks the judgment of the lower Court on the ground that the claim therein did not disclose any cause of action. A cause of action is that action which connotes every fact which is material to be proved before a competent Court of law to entitle the plaintiff to succeed or all those things necessary to give a right to relief in law or equity. Thus, it is the factual base or some factual situation, a continuation of which makes the matter in litigation an enforceable or an actionable wrong. Consequently, before a party files a matter in Court, he must possess a cause of action against some person(s) or institution(s). In other words, a plaintiff/claimant must show by his pleadings that he has a cause of action maintaining in a Court of law against the defendant.
He cannot sue just anybody but someone who has wronged him one way or the other. See BELLO V A.G. OYO STATE (1986)5 NWLR (pt 45)828, IBRAHIM V OSIM (198B) 3 NWLR (pt 82) 257, TUKUR V GOVT. GONGOLA STATE (NO.2) (1989)4 NWLR (pt 112) 517, NICON INSURANCE CORPORATION V OLOWOFOYEKU (2006) 5 NWLR (pt 973) 244 and REBOLD INDUSTRIES LTD V MAGREOLA (2015) 8 NWLR (pt 1467) 210.
In determining the existence or non-existence of a cause of action in a suit, the Court is to consider the Writ of Summons and the statement of claim. And what distinguishes a claim which discloses cause of action from the one that does not is that where a statement of claim discloses some reasonable cause of action on the facts alleged in it, it is where the claim has some chances of success and once it raises some issues of law or fact calling for determination by the Court. Put differently, it is irrelevant to consider the weakness of the plaintiff?s claim but whether it raise some questions fit to be decided by a Court. And for a statement of claim to be said to disclose no cause of action it must be such as nobody can understand what claim he is required to meet. See TIKA ? TORE PRESS LTD V UMAR (1968)2 ALL NLR 107.
The stratum of the respondent?s claim is at paragraphs 3, 4, 5 and 6 of the statement of claim which states as follows:-
3. The plaintiff is a customer to the defendant and maintains current account number 0039952638 with the defendant at its No.7 Mary Slessor Avenue, Calabar, Cross River State.
4. On the 6th day of March 2015, the plaintiff had great and urgent need to transfer money to one Mathew Egbeji to who the plaintiff had business obligations. The plaintiff as at the 6th day of March 2015, had sufficient fund in its account to meet up with its financial obligations to Buturo Mathew Egbeji. The plaintiff consequently requested the defendant to transfer the sum of two hundred and ninety seven thousand, five hundred Naira (N297,500.00) from its current account number 0039952638 with the defendant to Buturo Mathew Egbeji who operates Account Number 2002188186 with Zenith Bank Plc. The plaintiff accompanied its request for transfer of this fund by a cheque instruction as demanded by the defendant. The plaintiff shall at the trial found upon a copy of its account statement for the period of 01 February 2014 ? 31 ? May, 2015 to show among other things that it has sufficient fund in its account from where N297,500.00 was to be paid to Buturo Mathew Egbeji. The plaintiff shall also found upon funds transfer form and accompanying cheque evidencing the request for funds transfer it made on the defendant. The defendant is hereby given notice to produce the original copies of the documents aforementioned during trial.
5. The defendant made a representation to the plaintiff that its request for fund transfer to Buturo Mathew Egbeji had not been complied with. The plaintiff believing that the said fund has been transferred to the beneficiary that is Buturo Mathew Egbeji, proceeded to inform him that the said fund had been transferred into his account especially as the plaintiff?s account was on the same 6/3/2015 debited with the said N297,500.00 plus other consequential deductions.
6. To the plaintiff?s disappointment, the defendant neglected to transfer the said N297,500.00 to its beneficiary in that
i. The plaintiff had sufficient fund in its account NO 0039952638 with the defendant as at 6/3/15 when request for fund transfer was made on the defendant by the plaintiff.
ii. The plaintiff did all that was expected on its part concerning the transfer of the said fund to its beneficiary.
iii. The defendant has the legal duty to transfer the said fund from the plaintiff?s account with the defendant.
iv. The defendant failed to transfer the said fund and failed to immediately notify the plaintiff of the failure to transfer the said fund, even after debiting the plaintiff?s account with the said sum of N297,500 plus deductions thereto.
The plaintiff shall also rely on the principle of Res Ipsa loquito .
?I have stated that once a claim raises some issues of law or facts calling for determination, same cannot be struck out because it discloses some reasonable cause of action and that it is not a relevant factor to consider the strength or weakness of the claim. From the above reproduced averments of the respondent?s pleadings, the respondent was challenging the way and manner the appellant handled his request for fund transfer to one Buturo Mathew Egbeji.
This alone in my humble and respectful view, constitute a cause for which a full trial must be conducted. I therefore cannot but agree with the learned trial judge when he held that there was a reasonable cause of action against the appellant. Issue one is accordingly resolved in favour of the respondent.
Issue two questions the findings of the learned trial judge that the failure of the transaction, non-recrediting of the respondent?s account on time and also not informing the respondent about the failed transfer cumulatively rendered the appellant liable in negligence.
The relationship between the appellant and the respondent is discernable from the averments in paragraphs 2 and 3 of the statement of claim as well as paragraph 2 of the statement of defence. By the combined effect of the said averments, the respondent maintained a current account with the appellant, a registered commercial bank. The nature of such relationship has been given recognition in plethora of judicial decisions that it involves a specie of contract with special usages with particular reference to monetary or commercial transactions. Consequently, a banker has a duty under its contract with its customer to exercise reasonable care and skills in carrying out its part with regards to transactions in its contract with its customers. The Banker?s duty to exercise reasonable care and skills stretches over the whole range of banking business within the ambit of the contract with the customer. This duty applies to interpreting, ascertaining and acting in accordance with the instruction of the customer. See N.N.B. LTD V ODIASE (1993) 8 NWLR (pt 310) 235, FIRST BANK OF NIGERIA LTD V AFRICAN PETROLEUM LTD (1996) 4 NWLR (pt 443) 438, U. B. A. V FOLARIN (2003) 7 NWLR (pt 818) 18, AGBANELO V UNION BANK PLC (2000) 7 NWLR (pt 666) 534 and LINTON INDUSTRIES. TRADING CO. (NIG) LTD V C.B.N. (2015) 4 NWLR (pt. 1447) 94.
The respondent?s case at the lower Court was that on the same 6/3/2015 when it requested appellant for fund transfer, it received an sms alert stating that its account had been debited to the tune of N297,500.00 as requested. This implied that the money had been transferred from its account to the account of the beneficiary as requested. And on the basis of the alert it received from the appellant, it made representation to the said beneficiary, Buturo Mathew Egbeji that the money had been transferred to his account which was never done. That as a result of the appellant?s negligence for not transferring the fund as requested, it could not get the supply of the products it ordered from Buturo Mathew Egbeji and it abruptly closed production which resulted in its inability to work, resulting to economic loss.
The appellant debunked the above claim contending that there was no evidence to support it.
The general rule in civil cases is that the burden of proof rests upon the party who substantially assert the affirmative before the evidence is gone into. Therefore, the burden of proof lies on the person who will fail assuming no evidence had been adduced on either side. See Section 133 (i) of the Evidence Act, 2011. In the instant case, the respondent asserted that the resultant failure and or negligence in effecting the fund transfer has caused it loss, therefore it has the burden of proving that assertion. Where the plaintiff as in this case, pleads and relies on negligence by conduct or action of the defendant, the plaintiff must prove by evidence the conduct or action and the circumstances of its occurrence, which give rise to the breach of the duty of care owed the plaintiff. And that it is only after this, that the burden shifts to the defendant to adduce evidence to challenge negligence on his part. See U.T.B. (NIG) V OZOEMENA (supra).
The question here is has the respondent that alleges that the appellant breached its duty showed or proved how the duty was breached and thereby justifying the decision of the lower Court?
I have earlier on reproduced the averments in paragraphs 3 ? 6 of the respondent?s statement of claim. Also in paragraphs 7 and 8 of the said respondent?s statement of claim, it averred as follows: –
7. That as a result of the defendant?s negligence by failing to transfer the said fund to its beneficiary, the plaintiff could not get the supply of products ordered to be supplied to it by Buturo Mathew Egbeji. The plaintiff abruptly closed production and its staff and workers were unable to work resulting in ? economic loss to the plaintiff.
Worst still, Buturo Mathew Egbeji who is the major supplier of raw materials for the plaintiff?s production saw and continued to see the plaintiff as unreliable and irresponsible and has stopped further dealing with the plaintiff which further resulted in the plaintiff?s loss of production and revenue.
8. The plaintiff made several demands on the defendant to re-credit its account with the said N297,500.00 for failure to transfer the said fund to its beneficiary. On 10/3/2015, the plaintiff made a written Notice and demand for the remittance of the said fund back to its account, an apology and compensation. The defendant in response thereto merely remitted the said fund into the plaintiff?s account without more. The plaintiff shall during trial found upon its said letter dated 10/3/2015. The defendant is hereby given notice to produce the original copy of the said letter which was sent to the defendant through DHL International.
It is pertinent to note at this juncture that parties had joined issues on this said failure to transfer fund to the beneficiary. The appellant at paragraphs 9 ? 12 of the statement of defence averred that: –
9. In specific answer to paragraph 5 of the statement of claim, the defendant reiterates that, it carried out the request of the claimant to transfer the sum of N297,500 from the claimant?s current account no.0039952638 to Zenith Bank account no.2002188186 allegedly belonging to Matthew Egbeji. The defendant also avers that the transfer was effected on Friday, 6/3/2015, the same day that the claimant gave the instruction for the transfer. The defendant avers the evidence of the transfer is the debit alert message the defendant sent to the claimant on the same 6/3/2015 when the transfer was done and pleaded by the claimant in paragraph 5 of its statement of claim.
10. The defendant avers that, after transferring the money from the claimant?s account to the Nigerian Inter-Settlement Banking Switch (NIBSS), a structure of the Central Bank of Nigeria, the defendant was no more in control of crediting Zenith Bank account no. 2002188186 allegedly belonging to Matthew Egbeji. The defendant reiterates that after the transfer of the money on 6/3/2015 which was Friday, its staff were not on duty on 7/3/2016 and 8/3/2015, being Saturday and Sunday respectively to confirm that the transaction failed.
11. The defendant also reiterates that after the weekend break, it was on Monday, 9/3/2015, at about close of business, that it received notification from the Nigerian Inter-Settlement Banking Switch (NIBSS) of the failed transfer transaction. The defendant avers that the failure of the transfer transaction did not occur within the stage of the transaction controlled by the defendant but at the stage of the transaction when the money had left the defendant to the Nigerian Inter-Settlement Banking Switch (NIBSS) for the purpose of crediting the beneficiary?s account with Zenith bank.
12. In further answer to paragraph 5 of the statement of claim, the defendant avers that before it received the claimant?s letter of 10/3/2015, at about 3.00pm, it had already re-credited the claimant?s account no. 0039952638 with the sum of N297,500.00 transferred to the Nigerian Inter-Settlement Banking Switch (NIBSS) for the purpose of crediting account no.2002188186 with Zenith bank. The defendant avers that it was for this reason that it did not see the need to reply to claimant?s letter, believing that the money having been returned into the claimant?s account, there was no issue, more so, when the claimant on 11/3/2015 withdrew the money from his account.
Finally, the appellant had averred in paragraph 12 that:-
17. The defendant avers that the principle of res ipsa loquitor is not applicable in this suit as the defendant was not in any way negligent in carrying out the request of the claimant to transfer money from his account with the defendant to account No 2002188186 with Zenith bank. This is even more so where there were other parties like the Nigerian Inter-Settlement Banking Switch (NIBSS) a structure of the Central Bank of Nigeria responsible for inter-bank transfers, and Zenith Bank, who were also involved in the transaction and over whom the defendant has no control.
The tort of negligence is a civil wrong consisting of breach of a legal duty to care which results in damage. Thus, three things must be proved before the liability to pay damages for tort of negligence and these are:-
(a) That the defendant owned the plaintiff a duty to exercise due care.
(b) That the defendant failed to exercise due care, and
(c) That the defendant?s failure was the cause of the injury in the proper sense of that term.
In the instant case, respondent did not plead or lead evidence to show the appellant failure to exercise due care or that it was the appellant?s failure that cause the alleged loss or injury.
When cross-examined, the respondent?s sole witness has this to say at page 36 of the record of appeal ?
– The instruction you gave to the defendant was on Friday the 6/3/2015?
Ans: Yes
– On that same Friday you received an alert that the money has been transferred from your account?
Ans: Yes.
– Unfortunately, the Matthew did not receive the money?
Ans: Yes.
– On Tuesday the 10/3/2015 your account was re-credited with that amount of money?
Ans: Yes.
– On the 11/3/2015 you withdraw the money?
Ans: Yes.
The approach to a claim in negligence comes into operation in the following circumstances:
(a) On proof of the happening of an unexplained occurrence;
?(b) When the occurrence is one which would not have happened in the ordinary course of things without the negligence on the part of somebody other than the plaintiff and
(c) The circumstances point to the negligence in question being that of the defendant rather than that of any other person.
See F.B.N. PLC V BANJO (2015) 5 NWLR (pt 1452) 253.
The question here is will the failure on the part of the Nigerian Inter-Settlement Banking Switch of Nigeria which is solely responsible for interbank transfer be attributable to the appellant? This question must be answer in the negative because the duty owed to the respondent by the appellant was instantly carried out on the receipt of debit alert by the respondent on the same day the transfer was made i.e. 6/3/2015. I am therefore, not persuaded by the respondent?s submission that the appellant was merely pushing the blame on the door step of the third party. Here again the respondent must establish a nexus direct between the economic loss he suffered as a result of the failure to transfer fund and the negligence of the appellant without a third party intervening. These are all matters of evidence and regrettably there was none in this case.
The learned trial judge unfortunately did not go further to state whether at the time the failure to transfer fund happened, it was with full knowledge of the appellant or that it negligently caused the failure. There must be direct evidence to show all these things. The trial Court has failed to properly appraise the evidence with regard to the alleged negligence of the appellant. Therefore, I resolved issue two in favour of the appellant.
Issue three is a complain on the award of N3,000,000.00. in favour of the respondent being compensation and exemplary damages for the appellant?s negligence.
I have held that the finding of the trial Court is not supported by evidence. In other words, there was no evidence that the appellant was negligent or in breach of its duty of care to the respondent. Where negligence against the appellant was not established, the question of damages resulting therefrom does not arise at all. See U.T.B. (NIG) V OZOEMENA (Supra).
In conclusion, this appeal succeeds in part and it is accordingly allowed. The judgment of the lower Court delivered on 7th July, 2017 is hereby set aside. Each party to bear its own costs.
CROSS-APPEAL
MOCOK ONU NIGERIA LTD – CROSS-APPELLANT
AND
DIAMOND BANK PLC – CROSS-RESPONDENT
The respondent by a Notice of cross appeal filed on 27/9/2017 crossed appeal against the judgment of Hon. Justice Edem Ita Kooffreh delivered on 7th July 2017 setting out three grounds of cross-appeal.
It is worthwhile to comment albeit briefly on the way and manner the cross-appellant crafted his argument in support of the cross-appeal and likewise the manner the cross-respondent responded to the cross-appeal. Usually, the respondent in whose favour the Court has given judgment cannot challenge the judgment in his favour. However, a respondent who has an issue against the judgment in his favour can raise the issue by way of cross-appeal or respondent notice pursuant to Order 9 Rule 1 of the Court of Appeal Rules 2016.
In the instant case, the respondent/cross-appellant distilled a lone issue from the three grounds of cross-appeal and married it together with issues for determination in the substantive appeal by numbering it as issue five. Order 19 Rule 7 of the Court of Appeal Rules 2016 provides that –
7. A Respondent may without leave include arguments in respect of a cross-appeal or a respondent?s notice in his brief for the original appeal and the cross-appeal or Respondent?s notice.
Although, an argument in a cross-appeal may be included in the original appeal but it is desirable to distinctly identify issue(s) for determination in the original appeal and that for cross-appeal.
The respondent on its part who should ordinarily respond to the cross-appeal by way of cross-respondent?s brief, lumped everything together as ?appellant?s reply brief/reply to cross-appeal”. This is an inelegant way of responding to a cross-appeal.
Be that as it may, the cross-appellant contended that the trial Court ought to have awarded costs which will have the same kind of palliative effect on the financial burdens of the cross-appellant. It was submitted that the trial Court was wrong for failing to award cost in favour of a party that was successful in the case.
On the part of the cross-respondent, it was argued that issue five dealing with cross-appeal is not distilled from any of the grounds of appeal and thus incompetent.
It is settled that an issue or issues for determination must arise from the grounds of appeal relied upon. Where an issue formulated is not based on the ground of appeal filed; the legal effect is that it is on that account irrelevant. See UGO V OBIEKWE (1989), NWLR (pt.99) 566, OSINUPEBI V SAIBU (1982) 7 SC 104, WESTERN STEEL WORKS LTD V IRON & STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (pt 49) 284 and NSIRIM V AMADI (2016) 5 NWLR (pt 1504) 42.
In this case, issue five relating to cross-appeal not been anchored in the ground of appeal, same is incompetent and liable to be struck out.
In the result, the cross-appeal has no feet to stand. It is accordingly struck out.
Parties shall bear their respective costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in draft. the leading judgment delivered by my learned brother: Muhammad L. Shuaibu, JCA. I endorse, in toto, the reasoning and conclusion in it. I too allow the appeal and strike out the cross-appeal. I abide by the consequential orders decreed in leading judgment.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, M. L. SHUAIBU, and I am in complete agreement with the reasoning and conclusion arrived at.
I wish to reiterate the importance of pleadings in a claim founded in tort, particularly, negligence. The Apex Court in the case of DIAMOND BANK LTD. vs. PARTNERSHIP CO. LTD. & ANOR (2009) LPELR-939 (SC) on the nature of negligence stated thus:
?It is settled that negligence is a question of fact and not of law. So, each case must be decided in the light of facts pleaded and proved. No one case, is exactly like another. See the case of ALHAJI KALLA VS. JARMAN KANI TRANSPORT LTD. (1961) ANLR 778 at 785.
Pleadings just like other civil claims is a prerequisite to the establishment of a claim and in this case negligence. Failure to plead relevant facts would automatically defeat the claim. The Respondent failed to do the needful and therefore did not merit to have judgment, I therefore agree with my brother that the appeal is meritorious and succeeds.
I adopt all other orders made therein the lead judgment.
Appearances:
Julius Idiege, Esq.For Appellant(s)
O.C. Askyah (HB & Okey Obikezo) for Respondent & Cross-AppellantFor Respondent(s)
Appearances
Julius Idiege, Esq.For Appellant
AND
O.C. Askyah (HB & Okey Obikezo) for Respondent & Cross-AppellantFor Respondent
