CORAM

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

PARTIES

1. FIRST BANK OF NIGERIA PLC

2. IDRISSA ABDULLAHI

APPELLANTS 

SALISU USMAN

RESPONDENTS 

AREA(S) OF LAW

AREAS OF LAW: APPEAL, BANKING, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE, TORT

SUMMARY OF FACTS

HELD

1. Whether the 1st appellant was in any way responsible for the alleged unauthorized withdrawals on the respondent’s account including the said sum of N100,000.00 (one hundred thousand naira)?

2. Whether or not the plaintiff before the trial Court is bound to establish the facts pleaded in his pleading; strictly proving special damages?

ISSUES

Appeal dismissed

RATIONES DECIDENDI

BANKING – DUTY OF A BANKER TO ITS CUSTOMER

Let me iterate that the relationship between the 1st Appellant and the Respondent was a banker/customer relationship. Without a doubt, a banker has the duty to exercise reasonable care and skill regarding its customer’s affairs. The law is that a bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part regarding the operations within its contracts with its customer. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the customer and includes interpreting, ascertaining, and acting in accordance with the instruction of the customer. The relationship between the banker and customer is contractual and the relationship, in the absence of an express agreement between the parties to the contrary, is implied from the course of business between them. In circumstances where it has been alleged that a bank was negligent, as in this case, the circumstances must be such that establishes that the bank was not prudent or did not act in a satisfactory manner, in which case the tort of negligence will arise, since a prudent banker will never ignore the instruction given by the customer. See generally AGBANELO vs. UNION BANK (2000) LPELR (234) 1 at 17-18, BANK OF THE NORTH vs. YAU (2001) LPELR (746) 1, ALLIED BANK vs. AKUBUEZE (1997) LPELR (429) 1 at 36, DIAMOND BANK vs. PARTNERSHIP INVESTMENT CO. LTD (2009) LPELR (939) 1 at 22, ECOBANK vs. EKPERIKPE (2013) LPELR (20327) 1 at 43 and FIJABI vs. FIRST BANK (2021) LPELR (53351) 1 at 21-22. – Per U. A. Ogakwu, JCA

BANKER/CUSTOMER RELATIONSHIP – THE BASIS OF A BANKER/CUSTOMER RELATIONSHIP

The banker/customer relationship is one rooted in trust and confidence. This is the only reason why a person would entrust his hard-earned money to a bank in the belief that the money would be safe, properly managed and available on demand. It is on account of this that a fiduciary relationship exists between the bank and the customer, and the bank therefore owes the customer a duty to exercise a high standard of care in the management and control of the customer’s money, arising from the contractual relationship between them. See UNION BANK vs. CHIMAEZE (2014) LPELR (22699) 1 at 40-41, UNION BANK vs. AJABULE (2011) 18 NWLR (PT 1278) 152, WEMA BANK vs. OYEKANMI (2017) LPELR (50503) 1 at 34-35, and UBA PLC vs. EDEH (2023) LPELR (60572) 1 at 26-29.

The banker/customer relationship between the 1st Appellant and the Respondent imposed certain duties and obligations on the 1st Appellant for which it would be answerable where it fails in the performance of the said duties and the performance of the said obligations. Most importantly, the bank must be prudent and act in a satisfactory manner in the discharge of its contractual obligations to its customer. – Per U. A. Ogakwu, JCA

BANKER/CUSTOMER RELATIONSHIP – DUTY OF A BANK IN A BANKER/CUSTOMER RELATIONSHIP

The banker/customer relationship is one rooted in trust and confidence. This is the only reason why a person would entrust his hard-earned money to a bank in the belief that the money would be safe, properly managed and available on demand. It is on account of this that a fiduciary relationship exists between the bank and the customer, and the bank therefore owes the customer a duty to exercise a high standard of care in the management and control of the customer’s money, arising from the contractual relationship between them. See UNION BANK vs. CHIMAEZE (2014) LPELR (22699) 1 at 40-41, UNION BANK vs. AJABULE (2011) 18 NWLR (PT 1278) 152, WEMA BANK vs. OYEKANMI (2017) LPELR (50503) 1 at 34-35, and UBA PLC vs. EDEH (2023) LPELR (60572) 1 at 26-29.

The banker/customer relationship between the 1st Appellant and the Respondent imposed certain duties and obligations on the 1st Appellant for which it would be answerable where it fails in the performance of the said duties and the performance of the said obligations. Most importantly, the bank must be prudent and act in a satisfactory manner in the discharge of its contractual obligations to its customer. – Per U. A. Ogakwu, JCA

ADMISSION – THE IMPORTANCE OF ADMISSION AGAINST INTEREST

It is rudimentary law that an admission against interest is the best evidence in favour of an adversary in an action. ONYENGE vs. EBERE (2004) 13 NWLR (PT. 889) 39, ROCKSHELL INT’L LTD vs. BEST QUALITY SERVICES LTD (2009) 12 NWLR (PT. 1156) 640 at 649 and COUNTY & CITY BRICKS DEVELOPMENT CO. LTD vs. MKC (NIG) LTD (2019) LPELR (46889) 1 at 30. – Per U. A. Ogakwu, JCA

EQUITY – WHETHER A PERSON CAN BE ALLOWED TO BENEFIT FROM HIS OWN WRONG IN EQUITY

By the principles of equity, a person cannot be allowed to benefit from his own wrong. In the discharge of its adjudicatory functions, the Court is under the bounden duty to prevent injustice and avoid rendering a decision that would enable a party to escape from his obligation, evade the just desserts, or otherwise profit from his own wrongful act. See TERIBA vs. ADEYEMO (2010) LPELR (3143) 1 at 24-25, PDP vs. EZEONWUKA (2017) LPELR (42563) 1 at 105, TONIMAS (NIG) LTD vs. CHIGBU (2020) LPELR (50633) 1 at 18-19, CIVIL DESIGN CONSTRUCTION (NIG) LTD vs. SCOA (NIG) LTD (2007) LPELR (870) 1 at 78 and OGUNPEHIN vs. NUCLEUS VENTURE (2019) LPELR (48772) 1 at 24. On the trite and settled state of the law the 1st Appellant cannot be allowed to argue that the Respondent did not prove the amounts that were subject of the unauthorised withdrawals and the dates when the withdrawals were made, since it was its wrong in not sending SMS alerts to the Respondent that made it impossible for the Respondent to know when the unauthorised withdrawals were made. – Per U. A. Ogakwu, JCA

JUDGE – THE PRIMARY DUTY OF A TRIAL JUDGE AS IT RELATES TO EVIDENCE

The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. It is abecedarian law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48. – Per U. A. Ogakwu, JCA

APPELLATE COURT – WHETHER THE APPELLATE COURT CAN EMBARK ON FRESH APPRAISAL OF EVIDENCE

The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT 2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43.

It is settled law that for the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21, AWOYALE vs. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47. At the risk of prolixity, I restate that an appellate Court will not substitute its own views with those of the trial Court, when as in the instant appeal, the trial Court has unquestionably evaluated the evidence and justifiably appraised the facts. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19-20. – Per U. A. Ogakwu, JCA

CASES CITED

Not available

STATUTES REFERRED TO

1. Court of Appeal Rules, 2021

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