CORAM

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Peter Olabisi Ige JSC

Elfrieda Oluwayemisi Williams-Dawodu JSC

Ugochukwu Anthony Ogakwu JSC

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PARTIES

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UNITED BANK FOR AFRICA PLC (UBA)

APPELLANTS 

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 IKECHUKWU EDEH

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, BANKING, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The parties in this matter are in a banker/customer relationship. The Respondent is the Appellant’s customer at its Baga Road, Maiduguri Branch, Borno State. A garnishee order nisi issued out of the High Court of Nasarawa State was served upon the Appellant for the attachment of the monies of the judgment debtor in the said action which was determined by the High Court of Nasarawa State. The name of the judgment debtor in the said action was similar to the Respondent’s name, whereupon the Appellant placed a lien and Post No Debit (PND) on one of the Respondent’s two accounts with it.

Consequent upon this lien, the Respondent could not operate his account and upon inquiry at his branch in Maiduguri, he was directed to proceed to the Appellant’s Regional Office in Abuja which gave the instruction that the lien be placed on his account because of the garnishee order nisi. The Respondent maintained that he was not the judgment debtor, but he did not meet with any success at the Appellant’s Regional Office in Abuja, as he was directed to go to the High Court of Nasarawa State, which made the garnishee order nisi to resolve the issue.

The Respondent again proceeded to the High Court in Nasarawa State, obtained the Court processes, which showed that he was not the judgment debtor, made the same available to the Appellant’s Regional Office, but the Appellant still failed to remove the restriction on his account. Thereafter, the Respondent instructed his counsel who wrote to the Appellant demanding the removal of the restriction, but the Appellant failed to do so. The Respondent was then constrained to institute proceedings by Originating Summons before the Federal High Court, Abuja Division.

The lower Court in its judgment found in favour of the Respondent. The Appellant was dissatisfied with the judgment of the lower Court and it appealed against the same.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether in the light of Section 251 (1) of the 1999 Constitution, the trial Court has the jurisdiction to hear and entertain this matter on Breach of Contract?

2. Whether on the peculiar facts and circumstances of this matter, the lower Court rightly entered judgment in favour of the Respondent and awarding the sum of N3illion as damages against the Appellant?

 

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RATIONES DECIDENDI

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JURISDICTION – MEANING AND CONCEPT OF JURISDICTION AS IT APPLIES TO COURTS

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Jurisdiction is the lifewire of a Court as no Court can entertain a matter where it lacks jurisdiction. It is rudimentary law that jurisdiction is the authority which a Court has to decide matters that are laid before it for adjudication, or to take cognisance of matters presented in a formal way for its determination. The concept or content of jurisdiction as it applies to Courts can mean one of two things:

1. The abstract right of a Court to exercise its powers in causes of a certain class, or

2. The right of a Court to exercise its powers with respect to a particular subject matter.

In the broader sense, jurisdiction refers to the legal authority, the legal capacity to adjudicate at all; while in the narrower sense, it refers to the power over the subject matter of the action. The subject matter of a case must come within the Court’s jurisdiction. The nature of the subject matter over which the Court can exercise jurisdiction restricts the exercise of jurisdiction by a Court. – Per U. A. Ogakwu, JCA

 

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CONTRACT- THE NATURE OF THE CONTRACTUAL RELATIONSHIP BETWEEN A BANKER AND A CUSTOMER – FOUR POSSIBLE RELATIONSHIPS BETWEEN A BANK AND ITS CUSTOMER

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It is abecedarian law that the relationship of a bank customer and a banker is contractual: UBN PLC vs. CHIMAEZE (2014) LPELR (22699) 1 at 42 and UBN PLC vs. AJABULE (2011) LPELR (8239) 1 at 39. What is the nature and scope of this contractual relationship? Is the nature and scope of the contractual relationship such that accommodates the facts of this matter within a banker/customer relationship? In BANK OF THE NORTH LTD vs. YAU (2001) LPELR (746) 1 at 45-46, Ayoola, JSC, provided the answer in the following words:

“In the course of carrying on business of banking, a bank enters into several contractual relationships and performs various roles. It is important in an action between bank and customer to be clear which of the several contractual relationships forms or form the basis of the action. In this case, it is pertinent to note only four of these possible relationships, namely:

(i) the relationship of creditor and debtor that arises in regard to the customer’s funds in the hands of the bank;

(ii) the relationship of creditor and debtor that arises when the bank loans money to the customer or allows him to overdraw on his account;

(iii) the relationship that arises from the role of the bank as a collecting bank of cheques drawn on other banks or branches of the same bank by a third person, and

(iv) the possible role of the bank as a holder for value of a negotiable instrument.”

See also ECOBANK vs. ANCHORAGE LEISURES LTD (2018) LPELR (45125) 1 at 28-31. – Per U. A. Ogakwu, JCA

 

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JURISDICTION – EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT

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Section 251 (1) (d) of the 1999 Constitution, as amended, is relevant. It stipulates thus:

“251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –

(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures;

Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transaction between the individual customer and the bank.”

It is now settled law that jurisdiction is conferred on a Court by the Constitution or other statutory enactment establishing the Court. A Court cannot without an enabling law empowering it, exercise any jurisdiction. In aliis verbis, it is the statute which creates the Court that defines its jurisdiction. The jurisdiction of the Court must be apparent on the face of the statute, it is not to be inferred or imagined, neither does it require a searchlight to discover. See BRAITHWAITE vs. GDM (1998) 7 NWLR (PT 557) 307 at 332, SHELIM vs. GOBANG (2009) 12 NWLR (PT 1156) 435 at 452, OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) 13 NWLR (PT 1157) 83 at 125, OBI vs. INEC (2007) 11 NWLR (PT 1046) 565 at 669 and LAWAL vs. EFCC (2020) LPELR (49590) 1 at 11-20.  – Per U. A. Ogakwu, JCA

 

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JURISDICTION – WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION IN A MATTER INVOLVING AN INDIVIDUAL CUSTOMER AND A BANK

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In construing whether Federal High Court has jurisdiction under Section 251 (1) (d) of the 1999 Constitution, as amended, to entertain an action arising from a banker/customer relationship, Katsina-Alu, JSC (later CJN) intoned as follows in NDIC vs. OKEM ENTERPRISES LTD (2004) LPELR (1999) 1 at 78-79:

“It will be seen clearly that Section 251 (1) (d) confers exclusive jurisdiction on the Federal High Court in specified matters notwithstanding Section 272 (1). What this means is that the jurisdiction conferred upon and exercised by the State High Court hitherto in regard to those specified matters has been removed. The proviso to Section 251 (1) (d) however exempts any dispute between an individual customer and his bank from the exclusive jurisdiction of the Federal High Court. What this means is this. The proviso has done two things. First, the jurisdiction of the State High Court in transactions involving an individual customer and his bank has been preserved. In the second place, although the Federal High Court has jurisdiction in such disputes, it is not to the exclusion of the State High Court. In other words, both Courts have concurrent jurisdiction. That is to say that under the proviso to Section 251 (1) (d) of the 1999 Constitution, the Federal High Court has concurrent jurisdiction with State High Court in transactions involving an individual customer and his bank…”

(Emphasis supplied)

Equally, in ECOBANK vs. ANCHORAGE LEISURES LTD (2018) LPELR (45125) 1 at 36-38, Okoro, JSC held:

“A close perusal of the originating process before the trial Court clearly shows that the relationship between the appellant and the respondents is that of banker/customer relationship. There is nothing in the entire process to show a matter relating to simple contract. Section 251 (1) of the Constitution of the Federal Republic of Nigeria vests exclusive jurisdiction on disputes between banks and other financial institutions but the Proviso thereto confers concurrent jurisdiction on the Federal and State High Courts in matters between an individual customer and his bank in respect of transactions between the individual customer and the bank. It is therefore erroneous to argue that the Federal High Court does not have jurisdiction in this matter between the Appellant and the Respondents. See Nigeria Deposit Insurance Corporation v. Okem Enterprises Ltd (2004) 10 NWLR (pt 880) 107, (2004) LPELR – 1999 (SC.), Merill Guaranty Saving & Loans Ltd & Anor v. Worldgate Building Society Ltd (2013) 1 NWLR (Pt. 1336) 581.

It must be noted that Section 251 (1) (d) of the 1999 Constitution particularly the proviso thereof does not lose sight of the provision of Section 272 (1) of the same constitution which provides that – ‘subject to the provisions of Section 251 and other provision of the Constitution the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue.’ I do not think this provision provides exclusive jurisdiction on the State High Court on issue of disputes between an individual customer and his bank. Both Courts have concurrent jurisdiction on issue of banker/customer relationship.”

It seems to me that the legal position is settled beyond peradventure that in matters arising from a banker/customer relationship, the lower Court, the Federal High Court has concurrent jurisdiction with the State High Courts, notwithstanding that the banker/customer relationship is essentially contractual. See FBN PLC vs. STANDARD POLYPLASTIC INDUSTRIES LTD (2022) LPELR (57684) 1 at 40, UBA PLC vs. BTL INDUSTRIES LTD (2006) LPELR (3404) 1 at 77-80 and MERILL GUARANTY SAVINGS & LOANS LTD vs. WORLDGATE BUILDING SOCIETY LTD (2012) LPELR (9719) 1 at 15-16.  – Per U. A. Ogakwu, JCA.

 

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BANKS – THE NATURE OF BANKER/CUTOMER RELATIONSHIP – THE DUTY OF THE BANKER TO THE CUSTOMER

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I restate that there exists a banker/customer relationship between the Appellant and the Respondent. By the nature of this relationship, the Respondent was the creditor in respect of his funds with the Appellant and the Appellant as the debtor had the duty to make the funds available to the Respondent when he demands for it. See ALLIED BANK vs. AKUBUEZE (1997) LPELR (429) 1 at 28, AUGUSTINE UBA vs. UNION BANK (1995) 7 NWLR (PT 405) 72, JOACHIMSON vs. SWISS BANK CORPORATION (1921) 3 K. B. 110 and FOLEY vs. HILL (1848) 2 HL Cas 28.

It is settled law that a banker has the duty to exercise reasonable care and skill regarding the affairs of its customer. 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 contract with its customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with 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 the circumstances, where it is alleged that a bank has failed in its duty and obligation, as in this case, the circumstances must be such that establish that the bank was not prudent or did not act in a satisfactory manner.

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 generally UNION BANK vs. CHIMAEZE (supra), UNION BANK vs. AJABULE (2011) 18 NWLR (PT 1278) 152, WEMA BANK vs. OYEKANMI (2017) LPELR (50503) 1 at 34-35, AGBANELO vs. UNION BANK (2000) LPELR (234) 1 at 17-18, ALLIED BANK vs. AKUBUEZE (1997) LPELR (429) 1 at 36, DIAMOND BANK vs. PARTNERSHIP INVESTMENT CO. LTD (2009) LPELR (939) 1 at 22 and FIJABI vs. FIRST BANK (2021) LPELR (53351) 1 at 21-22.

The banker/customer relationship between the Appellant and Respondent imposed certain duties and obligations on the 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

 

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MISTAKE – WHETHER EVERY MISTAKE BY A LOWER COURT WILL RESULT IN THE DECISION BEING SET ASIDE ON APPEAL

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I am however quick to state that it is not every mistake made by the lower Court that will result in its decision being set aside on appeal. For the mistake to be considered as worthy of that effect, it must be a substantial error affecting the justice of the case in the sense that the error or mistake led to a miscarriage of justice and that but for the error a different decision would have been arrived at. See AMAYO vs. ERINMWINGBOVO (2006) 11 NWLR (PT 992) 669 at 689, TSOKWA MOTORS (NIG) LTD vs. UBA PLC (2008) 2 NWLR (PT 1071) 347, FBN PLC vs. OZOKWERE (2013) LPELR (21897) 1 at 33 and EZEONWU vs. WHIZ OIL LTD (2014) LPELR (24451) 1 at 18-19. – Per U. A. Ogakwu, JCA

 

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ORDER NISI – WHERE A WRONG CUSTOMER IS DEPRIVED ACCESS TO ACCOUNT IN OBEDIENCE TO AN ORDER NISI

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While it is true that the access to the funds in a bank account may not be absolute as submitted by the Appellant, but deprivation of access to funds can only be on legally justifiable grounds which is not so in this case where the Appellant, without any investigation whatsoever, and based entirely on unfounded supposition, wrongfully attached the Respondent’s account when he was not the judgment debtor against whom the order nisi was made.  – Per U. A. Ogakwu, JCA

 

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COURTS – CONDUCT OF COURTS WHERE A RIGHT HAS BEEN VIOLATED

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The Latinism ubi jus ibi remedium means that where there is a right, there is a remedy. In BELLO vs. A-G OYO STATE (1986) LPELR (764) 1 at 70, Karibi-Whyte, JSC asseverated:

“I think it is erroneous to assume that the maxim ubi jus ibi remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the Courts to provide a remedy whenever the Plaintiff has established a right. The Court obviously cannot do otherwise.”

(Emphasis supplied)

See also ORIANZI vs. A-G RIVERS STATE (2017) LPELR (41737) 1 at 65-66, BFI GROUP CORPORATION vs. BPE (2012) LPELR (9339) 1 at 33 and EZE vs. GOV OF ABIA STATE (2014) LPELR (23276) 1 at 29. The Respondent established the violation of his right to the funds in his account because of the Appellant’s action which had no justification in law or in fact; and which was also a breach of the duty of care owed to him arising from the fiduciary relationship between the parties. In the circumstances, the Court is enjoined by law to provide a remedy, ubi jus ibi remedium; the lower Court was consequently correct to hold the Appellant liable for the consequences of its action.  – Per U. A. Ogakwu, JCA

 

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GENERAL DAMAGES – THE CONDUCT OF COURTS IN AWARDING GENERAL DAMAGES

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The law is settled beyond peradventure that general damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what, in the opinion of a reasonable person, is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act of the defendant. It does not depend upon calculation made and figure arrived at from specific items. The issue of award of damages in any given case is a matter based on the discretion of the trial Court. See YALAJU-AMAYE vs. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD (1990) LPELR (3511) 1 at 47, ROCKONOH PROPERTY CO. LTD vs. NITEL PLC (2001) LPELR (2951) 1 at 11-12, HAMZA vs. KURE (2010) LPELR (1351) 1 at 28-29 and OKOKO vs. DAKOLO (2006) LPELR (2461) 1 at 39.

In DIAMOND BANK PLC vs. WELLCARE ALLIANCE LTD (2015) LPELR (40762) at 27-28, this Court, per Abba Aji, JCA (now JSC) stated:

“The law is trite that where general damages are claimed if the issue of liability is established as in the present case, the trial Judge is entitled to make his own assessment of the quantum of such general damages and on appeal, such damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely erroneous estimate of the damages to which the plaintiff is entitled.”

See also KUPOLATI vs. MTN NIGERIA COMMUNICATIONS LTD (2020) LPELR (49538) 1 at 13-14 and UNITED BANK FOR AFRICA vs. BENJAMIN (2023) LPELR (60205) 1 at 23-24. – Per U. A. Ogakwu, JCA

 

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COURTS – JUDICIAL DISCRETION OF COURTS IN AWARDING GENERAL DAMAGES – SITUATIONS WHERE AN APPELLATE COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY A LOWER COURT

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Let me restate that the assessment of the quantum of general damages is at the discretion of the Court. Judicial discretion is a vital tool in the administration of justice. Judicial discretion is a sacred power which inures to a Judge. It is an armour which the Judge employs judicially and judiciously to arrive at a just decision. In matters of judicial discretion, since the facts of two cases are not always the same, Courts do not make it a practice to lay down rules and principles that would fetter the exercise of its discretion or the discretion of the lower Courts. In matters of discretion, no one case is an authority for the other. Also, the fact that the appellate Court would have exercised its discretion differently from that of the lower Court is not sufficient reason to interfere with the exercise of discretion by the trial Court. A Court cannot be bound by a previous decision to exercise its discretion in a regimented way because that would be putting an end to discretion. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. No hard and fast rules can be laid down as to the exercise of judicial discretion by a Court, for the moment that is done, the discretion is fettered. See ANYAH vs. AFRICAN NEWSPAPERS (NIG) LTD (1992) LPELR (511) 1 at 20 -21, AJUWA vs. SPDC (2011) 12 SCNJ 596, ADISA vs. OYINWOLA (2000) 10 NWLR (PT 746) 116, NWADIOGBU vs. ANAMBRA IMO RIVER BASIN DEVT AUTHORITY (2010) 12 SCNJ 212, NNPC vs. CLIFCO NIG LTD (2011) 4 SCNJ 107 at 127-128 and VANDIGHI vs. HALE (2014) LPELR (24196) 1 at 52-53.

However, the fact that the quantum of damages is at the discretion of the Court does not mean that there are no circumstances when an appellate Court would interfere with the award of damages. An appellate Court will interfere with the award of damages by a trial Court in situations which include:

a) Where the Court acted under wrong principles of law

b) Where the Court acted in disregard of applicable principles of law

c) Where the Court acted in misapprehension of facts

d) Where the Court took into consideration irrelevant matters and disregarded relevant matters while considering its award

e) Where injustice will result if the appellate Court does not act

f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages

See ACB LTD vs. APUGO (2001) 5 NWLR (PT 707) 653, UBN LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558, B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62, SPDC LTD vs. TIEBO (2005) LPELR (3203) 1 at 25 and ODUWOLE vs. WEST (2010) LPELR (2263) 1 at 15. – Per U. A. Ogakwu, JCA

 

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GENERAL DAMAGES – WHETHER GENERAL DAMAGES CAN BE AWARDED WHEN NOT PLEADED AND PROVED

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It remains hornbook law that general damages need not be specifically pleaded and proved before the same can be awarded by the Court. General damages are awarded to assuage a loss caused by an act of the adversary: UBN LTD vs. ODUSOTE BOOK STORES LTD (supra), CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 31,OSUJI vs. ISIOCHA (1989) 3 NWLR (PT 111) 623 and ROCKONOH PROPERTY CO. LTD vs. NITEL PLC (supra). – Per U. A. Ogakwu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Sheriffs and Civil Process Act

3. Fundamental Rights (Enforcement Procedure) Rules

 

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