Legalpedia Electronic Citation: [2018] Legalpedia CA/YL/10/2017
Areas Of Law:
Appeal, Law Of Banking, Law Of Contract, Law Of Evidence, Practice And Procedure, Words And Phrases
Summary Of Facts:
By the Writ of Summons and Statement of claim taken out by the Plaintiff/Appellant, he claimed against the Defendants/Respondents, a declaration that the deduction of the sum N2, 000,000.00 from the Plaintiff’s account with the Defendant without his knowledge and consent is unlawful, improper and illegal and that the said amount be credited back into his account.
The Plaintiff/Appellant claimed sum of N5, 000,000.00 as special and general damages for illegal deduction and N500, 000.00 as cost of the suit. The Respondent, upon service of the originating process on it, entered appearance and further filed a defence and denied the claim.
Trial commenced thereafter at the said High Court of Adamawa State, with the Appellant himself giving evidence as the only or sole witness for the Plaintiff. Defence similarly led evidence at the trial and closed it case after calling two (2) witnesses. It was the Plaintiff/Appellant’s case that the Respondent, Union Bank of Nigeria removed the sum of N2, 000000 from his account held with the bank without his consent and thereby suffered untold hardship.
The Unity Supermarket had requested the Appellant to supply them with assorted drinks and the Supermarket lodged the sum of N 2,000,000 being cost of the items or goods to be supplied into the Appellant’s account with the Respondent’s Bank. Upon conveyance of the items to the Supermarket, the latter refused to take delivery of the goods on arrival.
The Supermarket’s proprietor returned to the Respondent to request the Bank to reverse the transaction hence the sum of N2, 000,000 lodged into the Appellant’s account was withdrawn from the said account at the Union Bank of Nigeria Plc. The trial court in a reserved judgement dismissed the Plaintiff’s case, hence this appeal at the Appellant’s instance.
Held:
Appeal Dismissed
Issues For Determination:
– Whether the Statement on Oath of the Dw2 was not incompetent and whether the lower court had jurisdiction to rely on evidence extracted from the incompetent Statement on Oath of the Dw2?
– Whether the lower court was right to have dismissed the claim of the plaintiff under paragraph 12a of the Statement of Claim having regard to the customer/banker relationship existing between the Plaintiff and the Defen
– Whether having regard to the totality of admissible evidence before the lower court, the lower court was right to have dismissed all the claims of the Plaintiff before it including the claims of damages in paragraph 12c & d of the Statement of Claim?
Rationes:
STATEMENT OF A WITNESS ON OATH – WHETHER THE ABSENCE OF A WITNESS STATEMENT ON OATH TO A WRIT OF SUMMONS CAN BE TREATED AS A MERE IRREGULARITY
“A written Statement which must be frontloaded and relied upon by a party in the High Court is the sworn Statement of a witness. See Order 1 Rule 2(2) (c ) of the High Court Civil Procedure Rules 2013 of Adamawa State which provides:-
“Every Writ of Summons shall be accompanied by:
(a) X X X X X X X X X X X X X X X X X X X X X X X
(b) X X X X X X X X X X X X X X X X X X X X X X X
(c) Written Statement on Oath of the witness…”
The requirement of accompanying sworn Statement of a witness with the writ of Summons and Statement of claim at the time of filing, is a basic requirement without which the witness cannot validly be called upon to given evidence. It is a condition precedent to the taking of oral evidence of a witness and the absence of it is not a mere irregularity which can be remedied but a fundamental defect and this is not redeemable.” PER S. T. HUSAINI, J.C.A.
STATEMENT OF A WITNESS ON OATH – EFFECT OF AN ABSENCE OF THE STATEMENT OF A WITNESS ON OATH
“The case on hand is one in which the witness’s statement was not sworn to at all either before the Commissioner for Oath or any other person. It is thus a fundamental defect not to have a witness’s statement sworn to. This Court in Muhammed Ibrahim Onubeju Vs. Fatimah Idris (supra) has held that:
“The Oath Act is a general statute that deals with Oath. The provision under the Evidence Act on affidavits places a condition precedent which ought to be fulfilled to render the affidavit competent. One fundamental condition is the swearing on Oath before the Commissioner for Oath. It is in this vein that the Provision under the Oaths Act becomes relevant. This is why a defect regards the swearing on Oath is not a mere irregularity as to form but defect as to substance.”- PER S. T. HUSAINI, J.C.A.
AFFIDAVIT – REQUIREMENT FOR THE USE OF AFFIDAVIT IN COURT
“Under Section 109 and 112 of the Evidence Act, 2011 any affidavit intended to be used in court must be sworn before an appropriate authority. Section 86 of the Oath Act Cap 01 of Federal Republic of Nigeria is to the same effect.” PER S. T. HUSAINI, J.C.A.
STATEMENT OF A WITNESS ON OATH – EFFECT OF A WITNESS GIVING EVIDENCE ON A DEFECTIVE WITNESS’ STATEMENT ON OATH
“Where therefore as in the instant appeal case, the witness’s evidence in chief (Dw2), her evidence under cross-examination and re-examination if any, are founded on a fundamentally defective witness’s Statement on Oath, it is as if the witness gave no evidence at all. The case of UAC Vs. Macfoy (1962) A.C. 152 is instructive: You cannot place something on nothing and expect it to stand.” PER S. T. HUSAINI, J.C.A.
BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROOF IN AN ACTION IN COURT
“The law is that the plaintiff (Appellant) must prove his case if he must succeed in his claim. This is so because the burden of proof lies on him. Sections 131 and 131 of the Evidence Act are on point. He is required to call evidence and prove all material averments contained in his statement of claim over which himself and the respondent have joined issues, unless it is admitted by the party on the other side. In that case the plaintiff may be absolved from the duty on him to further lead evidence to prove it.” PER S. T. HUSAINI, J.C.A.
BANKER/CUSTOMER RELATIONSHIP – NATURE OF A BANKER/CUSTOMER RELATIONSHIP
“There is thus a customer/Banker relationship between them. Such relationship is, in law, contractual, the appellant being the customer. See: Access Bank Plc. Vs. Mr Ettel O. Ugwah (2013) LPELR – 20735 (CA); Allied Bank Nigeria, Ltd Vs. Akebueje (1977) 6 NWLR (Pt. 506) (SC); Union Bank Plc. Vs. Ajabule (2011) 18 NWLR (Pt. 1778) 152; Afribank Plc. Vs. Amuebunera (2012) 4 NWLR (Pt. 1291) 560″. PER S. T. HUSAINI, J.C.A.
CONTRACT – DEFINITION AND NATURE OF A CONTRACT
“A contract can be defined as legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other. See Orient Bank (Nig.) Vs. Bilante International Ltd (1997) 8 NWLR (Pt 515) 37; SGB Nig. Ltd Vs Safa Street & Chemical Manufacturing Ltd (1998) 5 NWLR (Pt.548) 168. A contract is a promise or a set of promises, for breach of which the law gives a remedy or the performance of which the law in some way recognises as a duty. See: RobinetNigeria Limited Vs. Shell Nigeria Gas Ltd. (2013) LPELR (2013) LPELR – 22114 (CA).” PER S. T. HUSAINI, J.C.A.
CONTRACT – WHETHER A BILATERAL CONTRACT ACKNOWLEDGES THIRD PARTY INTERFERENCE
“An agreement or contract is bilateral affair and needs the ad idem or consensus of parties to it. See: Odutola V. Papersack Nigeria Ltd. (2006) 18 NWLR (Pt. 1012). A bilateral agreement or contract does not admit of any third party influence or interference who is not privy to it. PER S. T. HUSAINI, J.C.A.
NECESSARY PARTY – WHO IS A NECESSARY PARTY?
“A necessary party or parties as held in Green Vs. Green (1987) NWLR (Pt. 61) 481, are those who are not only interested in the subject-matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.” PER S. T. HUSAINI, J.C.A.
DESIRABLE PARTY – WHO IS A DESIRABLE PARTY?
“Desirable parties are those who have interest or who may be affected by the result.” PER S. T. HUSAINI, J.C.A.
NON-JOINDER OF A NECESSARY PARTY – WHETHER THE NON-JOINDER OF A NECESSARY PARTY CAN DEFEAT AN ACTION
“In any case, a cause or matter cannot be defeated by non-joiner of necessary party. It may be an irregularity. It suffices if parties before the court are competent and the court thus, can deal with the matter in controversy as regards the rights and interests of the parties before it. See: Iyere Vs. Bendel Feed & Flour Mills Ltd. (2008) 18 NWLR (Pt. 119) 300, 336; Sapo Vs. Sunmonu (2013) (Pt. 1205) 374, 391.” PER S. T. HUSAINI, J.C.A.
BANKER/CUSTOMER RELATIONSHIP – DUTY OF A BANKER TO ITS CUSTOMER AS IT RELATES TO THE MANAGEMENT OF THE LATTER’S ACCOUNT
“The money in the account of a customer is a contract and money in the hands of the bank is borrowed from the customer until it is demanded by the customer it remains in the custody of the bank for its use hence a banker has a duty its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to transaction within its contracts with customers. See Zenith Bank Plc. Vs. Onenaka & Anor. (2016) LPELR – 403227 (CA); Linton Industry Trading Coy. Nig. Ltd. Vs. CBN (2013) LPELR – 22036 (CA).” PER S. T. HUSAINI, J.C.A.
BANKER/CUSTOMER RELATIONSHIP – NATURE OF A BANKER/CUSTOMER RELATIONSHIP
“The relationship between the bank and its customer is fiduciary. It is, sometime called confidential relationship. When the customer chooses to operate an account with a bank, he does so based on the trust and confidence he reposed on that bank. The bank has a duty to exercise a High standard of care in managing the customer’s account’. PER S. T. HUSAINI, J.C.A.
SPECIAL DAMAGES – SPECIAL DAMAGES ARE REQUIRED TO BE SPECIFICALLY PLEADED
“In relation to item (c) and (d) of the claim it is for the appellant to prove his entitlement to special damages and costs as estimated by him in his claim. Special damages are required to be specifically pleaded, strictly proved and accordingly awarded. See: Ahmadu Gari V. Garafina Nigeria Ltd & Anor. (2007) LPELR-8397 (CA). See Aluminium Manufacturing Company of Nigeria Vs. Volkswagen of Nigeria Ltd (2010) LPELR-3759 (CA).” PER S. T. HUSAINI, J.C.A.
Statutes Referred To:
Court of Appeal Act
Evidence Act, 2011
High Court Civil Procedure Rules 2013 of Adamawa State
Oath Act Cap 01 of Federal Republic of Nigeria
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