Legalpedia Citation: (2022-12) Legalpedia 11816 (CA)

In the Court of Appeal

LAGOS JUDICIAL DIVISION

Fri Dec 30, 2022

Suit Number: CA/LAG/CV/916/2019

CORAM

Jimi Olukayode Bada JCA

Muhammad Ibrahim Sirajo JCA

Peter Oyinkenimiemi Affen JCA

PARTIES

LAITAN ADESANYA

APPELLANTS

FIDELITY BANK PLC

RESPONDENTS

AREA(S) OF LAW

LAW OF EVIDENCE, CONSTITUTIONAL LAW, JURISDICTION, CIVIL PROCEDURAL LAW, BANKING LAW, PRACTICE AND PROCEDURE.

SUMMARY OF FACTS

The appellant is a customer of the Respondent and operates a domiciliary account with the respondent at its Utako branch Abuja. The sum of $1,899,975.00 US Dollars was credited into the Appellant’s account via transfer, after the money was deposited in his account, he sought to withdraw from the Respondent Bank though he was at Dakar, Senegal at that moment. The appellant discussed his intention with his account officer who advised he signs off the request for the withdrawal and sign behind the withdrawal slip that the money was collected by him. This request was made electronically made by the account officer who scanned the withdrawal slip and the sent to the appellant who complied   with the signing and scanned same back to respondent bank in Abuja. The Appellant was unable to return to the country on the 3rd of March, 2015 as planned and therefore did not collect the money but instructed the Account Officer via telephone to put the money back into his Account for fixed deposit since he was unable to pick up the money as planned. During an investigation it was discovered that the Respondent had mixed the appellant’s funds with funds connected to the Former Minister of Petroleum, Mrs. D. Allison Madueke. Having no relationship with her, the Appellant proceeded to the Respondent Bank to demand for his money. The Respondent Bank refused to positively respond to his demands by paying the said sum of $1,850,000.00 US Dollars to him on the ground that he had since withdrawn the said amount vide a Domiciliary Account Withdrawal Form which he filled and signed at the reverse side that he has collected the money in cash. This prompted the Appellant to commence an action at the Federal High Court Lagos (the lower Court), at the conclusion of hearing in the case, the lower Court dismissed the Plaintiff’s action in a judgment delivered on 25/06/2019, hence his appeal to this Court against the said judgment.

HELD

Appeal dismissed

ISSUES

1. Whether the Appellant has proved his entitlement to the declarations and orders sought before the lower Court in respect of the sum of $1,850,000.00 US Dollars?

2. Whether the Appellant’s right to fair hearing was breached by the lower Court?

RATIONES DECIDENDI

REPLY BRIEF – WHAT IS THE ESSENCE OF A REPLY BRIEF?

The law is settled that the essence of Reply Brief is to respond to new issues raised in the Respondent’s Brief which were not taken in the Appellant’s Brief. Reply Brief is not an avenue to reopen argument already canvassed nor an opportunity to re-emphasize the arguments in the Appellant’s Brief. See Oguanuhu & Ors vs. Chiegboka (2013) LPELR-19980 (SC); Eromosele vs. FRN (2018) LPELR-43851 (SC); Compact Manifold & Energy Services vs. Pazan Services Nig. Ltd (2019) LPELR-49221; Cameroon Airlines vs Otutuizu (2011) LPELR-827 (SC). PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

REPLY BRIEF – WHETHER OR NOT A REPLY BRIEF IS A REPAIR KIT

A Reply Brief is not a repair kit to put right any lacuna or error in the Appellant’s Brief; Awusa vs. Nigerian Army (2018) LPELR-44377 (SC). PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

REPLY – EFFECT OF A REPLY BRIEF BREACHING THE RULES GUIDING THE FILING OF A REPLY BRIEF

The consequence is that the Appellant’s Reply Brief ought to be and is hereby discountenanced for breaching the rules guiding the filing of Reply Brief. PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

BIFURCATION OF BUNDLE OF DOCUMENT – WHETHER OR NOT THE COURT IS AT LIBERTY TO BIFURCATE A BUNDLE OF DOCUMENT TENDERED AS SINGLE EXHIBIT

If the Court decides to ascribe probative value to Exhibit LA4, it must do so to the entire Exhibit. If on the other hand, it decides to jettison Exhibit LA4, it must jettison it in its entirety. The Court does not have the liberty to bifurcate a bundle of document tendered as a single exhibit and proceed to rely on a portion of it and discountenance the other portion. PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

DOCUMENT – WHETHER OR NOT AN ATTACHMENT CAN BE READ AND RELIED UPON IN ISOLATION FROM ITS PRINCIPAL DOCUMENT

Having decided to rely on Exhibit LA4 in its judgment, the lower Court ought to have considered the extra-judicial statement of Charles Onyedibe, which is the main Exhibit LA4 as admitted by him; evaluate it and ascribe whatever value it deems fit to the said statement. Alas, the learned trial Judge turned a blind eye to the content of that statement but placed heavy reliance on the attachment, which is the only document that attracted his fancy. How the attachment came to be or came into existence, was explained in the statement of the person who annexed the attachment, i.e., Charles Onyedibe. The attachment cannot be read and relied upon in isolation from its principal document to ground a finding one way or the other. That is not what the law expects from the lower Court. If the Court decides to ascribe probative value to Exhibit LA4, it must do so to the entire Exhibit. If on the other hand, it decides to jettison Exhibit LA4, it must jettison it in its entirety. PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

VARYING A WRITTEN INSTRUCTION – WHETHER OR NOT A WRITING INSTRUCTION CAN BE VARIED BY AN ORAL EXPLANATION

The Appellant has not produced before the lower Court any such agreement or written instruction from him directing the Respondent to place the money in fixed deposit. The Appellant’s instruction to the Bank for the withdrawal of the sum of US$1,850,000.00 was in writing. His acknowledgement of receipt of the sum on the withdrawal form was in writing. The Appellant cannot under the law, equity or good conscience vary the written instruction and acknowledgement with a verbal explanation that he did not receive the money. See Section 128 of the Evidence Act and the cases of Okonkwo vs. Co-operative and Commerce Bank Plc & Ors (2003) LPELR-2484 (SC); Larmie vs. Data Processing Maintenance & Services Ltd (2005) LPELR-1756(SC); B.O. Lewis vs U.B.A Plc (2016) LPELR-40661 (SC): Atiba Iyalamu Savings and Loans Ltd vs. Suberu & Anor (2018) LPELR-44069 (SC); Access Bank Plc vs. Nigeria Social Insurance Trust Fund (2022) LPELR-57817 (SC). PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

CUSTOMER-BANKER RELATIONSHIP – WIHO ARE THE PARTIES TO A CUSTOMER-BANKER RELATIONSHIP?

Furthermore, the law is trite that a customer-banker relationship only exists between the Bank, as a legal entity, and its customers, not between Officers of the Bank and the customers. PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

COMMUNICATION – WHAT IS THE PRESCRIBED MODE OF COMMUNICATION BETWEEN A BANK AND ITS CUSTOMERS?

I have also taken judicial notice of the fact that it is the custom in banking practice that communications between Banks and customers are normally made in writing, not verbal, just like the contractual relationship existing between the Bank and its customers always comes into being through writing. PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

FAIR HEARING – WHETHER OR NOT IMPROPER EVALUATION OF EVIDENCE IS SAME AS FAIR HEARING

With respect to Issue 2 where the Appellant complained of denial of fair hearing, I will just observe in passing that improper evaluation of evidence, which is the pivot of the Appellant’s grudge before this Court, is not synonymous with denial of fair hearing. PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

FAIR HEARING – THE CONCEPT OF FAIR HEARING

equal opportunity to the parties to be heard in the litigation before the Court. It is a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties. See INEC vs. Musa (2003) LPELR-24927 (SC). PER – MUHAMMAD IBRAHIM SIRAJO, J.C.A.

FAIR HEARING – WHEN DOES BREACH OF THE PRINCICIPLES OF FAIR HEARING OCCUR?

In the case of Ovunwo vs. Woko (2011) LPELR-2841 (SC), the Supreme Court, Per Adekeye, JSC, held:

“The right to fair hearing is a very essential right for a person to secure justice. A fair hearing connotes or involves a fair trial and a fair trial of a case consists of the whole hearing.”

​It follows therefore that where one of the parties to the litigation is not giving an opportunity to be heard, the principles of fair hearing is breached. There is nothing in the Record of Appeal before this Court to show that the Appellant was denied fair hearing. The Appellant was given all the opportunities to present his case the

way he deems fit, and the Court duly obliged and entertained him. The kite of denial of fair hearing, which has become fashionable with counsel these days, cannot fly in the instant appeal. I am in agreement with the submission of the Respondent’s counsel that the Appellant’s reliance on the case of Ovunwo vs. Woko (supra) to support his contention that he was denied fair hearing was totally misconceived as the said case concerns Court’s failure to deal with all the issues raised before it and not failure to consider or evaluate any piece of evidence, as is the case in this appeal. Accordingly, Issue 2 is resolved against the Appellant. PER – MUHAMMAD 

CASES CITED

Not Available

STATUTES REFERRED TO

Not Available

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