➥ CASE SUMMARY OF:
Benjamin Agi V. Access Bank Plc (formerly known and called Intercontinental Bank Plc (CA/MK/86/2012, 28 Nov 2013)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Money lost via ATM
Negligence
Fraud
➥ CASE FACT/HISTORY
The appellant, a Makurdi businessman dealing in wears, maintained a current account, number 05030010000136641, with the respondent at its Makurdi branch, Benue State. The respondent issued the appellant with an Automated Teller Machine (ATM) debit card with the number: 636088010026279443. The appellant activated and changed it to his secret Personal Identification Number (PIN) and started using same exclusively without sharing the card details with anybody whosoever.
On 03/11/2009, the appellant travelled to Onitsha to purchase wears for sale. Thereat, he drew a cheque of N70,000.00, payable to himself, out of the credit balance of N95,518.00 in his current account with the respondent. The operation officer of the respondent’s branch at No. 14 New Market Road, Onitsha informed the appellant that he had no funds in the account his money having been withdrawn through an ATM transaction at the respondent’s Fontana Service Station, Enugu. He was advised to return to Makurdi where the account was domiciled. The appellant heeded to the advice. On return to Makurdi, he lodged a complaint on the issue to the respondent’s operation officer, Makurdi branch, Christopher Taiwo, who gave him a remorseless reply. A print out of the appellant’s statement of account revealed fifteen sequential withdrawals of various sums of money vide the ATM.
Sequel to these, the appellant, via his solicitors, wrote two letters demanding for a restoration of the sum of money in his account, damages and apology. The respondent replied the letters and denied liability. In the respondent’s reply letter, it quoted an ATM debit card number different from the one issued to the appellant. Consequent upon that denial, the appellant took out a writ of summons, before the lower court, against the respondent on 19/01/2011.
After the address of the parties, the lower court, in a considered judgment delivered on 03/02/2011, dismissed the appellant’s suit in its entirety.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the appellant has proved that the respondent bank was negligent (by failing to safe-guard his deposits and allowed unauthorized withdrawal of his money with an ATM card other than the one issued to him by the respondent) to be entitled to damages claimed at the court below?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE APPELLANT DID NOT PLEAD NEGLIGENCE OR FRAUD
‘Now, the knotty question, begging for an answer is: Did the appellant comply with the above positions of the law? The appellant’s statement of claim, an integral part of the pleading, occupies a frontal and conspicuous position in the printed record of appeal – pages 4-6 thereof. His reply to the respondent’s statement of defence, a portion of the pleading, is encapsulated between pages46-48 of the record. I have perused through the said 25 – paragraph statement claim and 14-paragraph reply, with a fine toothcomb, with the aim of deciphering his compliance or violation of the above displayed positions of the law. I am unable to find, even with judicial lens, where the appellant outlined any particulars of negligence or fraud. The well-numbered and articulated statement of claim and reply are void of the words negligence and/or fraud. The dire consequence of the appellant’s failure to plead any particulars of negligence is embedded in the case of Koya v. U.B.A.Ltd. (supra) at pgs 291-292, paras. F-A where Iguh, JSC, succinctly, observed: “In the present case, the plaintiff nowhere in his statement of claim pleaded any particulars no matter how vague, of the ingredients of negligence leveled against the defendant …. No particulars of whatever nature in respect of the defendant’s alleged acts of recklessness, carelessness or negligence were given, supplied, pleaded or indeed testified to by the plaintiff… In my view, the plaintiff’s failure to plead or establish by evidence, the particulars of negligence he was relying on against the defendant is fatal to his case.”’
‘In the result, I endorse, in toto, the respondent’s sterling argument that the appellant never pleaded particulars of negligence or fraud, upon which he pegged his case and the issue, nor any evidence proffered in that respect. The failure is inimical to his case as it is a flagrant defilement of the law.’
EITHER THE APPELLANT DID THE WITHDRAWAL OR AN UNKNOWN PERSON WHO HE GAVE HIS PIN
‘That takes me to an examination of the second ingredient of negligence. Parties expressed discordant views on this stubborn ingredient. While the appellant held, tenaciously, to the stand that he did, the respondent stuck to a diametrically opposed stance. In this perspective, I will pay an expected visit to the evidence on the printed record. The parties were consensus ad idem on the evidence that the respondent issued ATM debit card to the appellant. It is exhibit A. It contains the number 636088010026279443. Immediately the exhibit A was issued to the appellant, he activated it and contrived his secret PIN which he used to withdraw money from his account with the respondent. The appellant pleaded and gave evidence, both under examination-in-chief and under the crucible of cross-examination, that only he knew the secret PIN. He also admitted that he was in possession of exhibit A all through except for the brief period he gave it to the respondent’s cashier at Onitsha and which “she immediately returned” to him. Flowing from these critical pieces of evidence, I am impelled to draw the inference that it was either the appellant that did the withdrawal or an unknown third party to whom he divulged the PIN.I have the unbridled licence of the law to make the inference, see Okoye v. Kpajie (1992) 2 SCNJ 290 [reported as Okonkwo v. Kpajie(1992) 2 NWLR (Pt. 226) 633]; Akpan v. Bob (2010) 17 NWLR(Pt. 1223) 421. I am fortified in the inferences because, without the secret PIN, which is usually personal to the card holder as testified by the appellant, it is impossible to withdraw money through the ATM debit card. The appellant agreed that he was, at all material time, in possession of exhibit A with its hidden PIN. Indeed, under the furnace of cross- examination, on page 72 of the record, he answered: “on 3/11/2010, exhibit A was in my possession”. In the eyes of the law, being custody of it implies that he was in care and control of it for inspection, preservation and security, see Nigeria Ports Plc v. B.P. Pte Ltd. (2012) 18 NWLR (Pt. 1333) 454. The inference is further consolidated/solidified by the sequence of evidence of the appellant to the effect that the respondent’s cashier at Onitsha requested for exhibit A after she had informed him that there was no money in his account to carry exhibit B, the cheque.’
‘In all, the appellant, in my view, after due consultation with the law, failed to establish that the respondent breached the fiduciary duty of care it owed to him. Having reached a finding that the appellant did not prove the second ingredient of negligence already set out at the dawn of this issue, the fate of the third ingredient, occurrence of injury or damage to the appellant, is not a moot question. It admits of no argument that the second ingredient is the touchstone for the existence of the third ingredient of negligence. It is, therefore, plain to me that since the appellant did not fulfill the second ingredient, he cannot, de jure, establish the third ingredient as it is impossible, in law, for him to incur injury without the respondent’s infraction of his duty of care.’
THE APPELLANT DID NOT PROOF ANY SPECIAL DAMAGES
‘Even on a consideration of the third ingredient on the merit, did he prove it? I have my doubts. To start with, the appellant’s claim for damages of N500,000.00 loss of business profits comes within the perimeter of special damages – those damages which are the actual, but not necessary, result of the injury complained of, but follow it as a natural and proximate consequence in a particular case, that is, by reason of special circumstances or conditions, see Ahmed v. CBN (2013) 2 NWLR (Pt. 1339) 524; U.B.N. v. Ajabule(2011) 18 NWLR (Pt. 1278) 152. Special damages must be specially pleaded, with particulars, and strictly proved. By strict proof, the law means that a party claiming special damages should establish his entitlement to them by credible evidence of such a character that would suggest he is entitled to it, see Oshinjirin v. Elias (1969) 6 NSCC 95, (1970) 1All NLR 153; Ahmed v. CBN (supra); Gonzee (Nig.) Ltd. v. NERDC(2005) 13 NWLR (Pt. 943) 634; Cameroon Airlines v. Otutuizu(2011) 4 NWLR (Pt. 1238) 512; Neka B.B.B. Mfg. Co. Ltd. v. A.C.B.Ltd. (2004) 2 NWLR (Pt. 858) 521; SPDC (Nig.) Ltd. v. Tiebo VII(2005) 9 NWLR (Pt. 931) 439; NNPC v. Klifco (Nig.) Ltd. (2011)10 NWLR (Pt. 1255) 209; Akinkugbe v. E.H. (Nig.) Ltd. (2008)12 NWLR (Pt. 1098) 375; Ajagbe v. Idowu (2011) 17 NWLR (Pt.1276) 422. Indeed, admission to special damages by an adverse party does not relieve a claimant from strict proof, see SPDC (Nig.)Ltd. v. Tiebo VII (supra); Akinkugbe v. E. H (Nig.) Ltd. (supra);NNPC v. Klifco (Nig.) Ltd. (supra).’
GENERAL DAMAGES DOES NOT ARISE
‘Then, I turn to examine the claim of N5,000,000.00 general damages. General damages are those damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and strictly proved, see Neka B.B.B.Mfg. Co. Ltd. v. ACB Ltd (supra); UBN Plc v. Ajabule (supra);Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138.It is at the discretion of the court to award general damages. See Cameroon Airlines v. Otutuizu (supra); Ahmed v. CBN (supra). It will be recalled that I had reached a finding that exonerated the respondent from breach of the fiduciary duty of care it owed the appellant. There are no extenuating circumstances, at my disposal now, to upset that solemn finding, duly arrived with the aid of the law. In the light of that outstanding finding, the appellant’s relief for general damages ceases to have any pedestal to stand so as to make it grantable.’]
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↪️ II. Whether the judgment is not against the weight of evidence before the court below?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[APPELLANT/CLAIMANT DID NOT PROVE HIS CASE; UNPLEADED FACTS AND INADMISSIBLE EVIDENCE
‘I have situated the evidence, both viva voce and documentary, offered by the parties with the positions of the law adumbrate above. I have, also, placed them on the pans of the proverbial imaginary scale of justice. This is with a view to discovering if the decision of the lower court was against the evidence tendered before it. While treating issue one, I found that the appellant did not furnish the necessary particulars of negligence or fraud, upon which his case was grounded on, in his pleadings. There are no reasons, available to me, to disturb that finding. The net effect of that finding is obvious. The evidence of the appellant touching on those absent necessary particulars were not only irrelevant, but tainted with the miasma of inadmissibility. They qualified as evidence given outside the four walls of pleadings which, in law, are inadmissible. The same thing plagues the evidence given on the special damages of loss of business profits/gains. By law, evidence bordering on unpleaded facts goes to no issue and unusable by the court, see Etav. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. I. Inv. Ltd. v. Afribank(Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380.’
APPELLANT ADMITTED THAT HIS ATM WAS WITH HIM
‘When being crossed-examined, the appellant, on pages 71-72 of the record, replied: “Once I got the A.T.M. card from the bank, I changed the PIN number to my personal number. The bank never asked me for my personal PIN number. I have never had any course to return the card to them…. On 3/11/2010, exhibit A was in my possession”. These critical pieces of evidence cannot be conclusive and credible in the face of the appellant’s allegation that the respondent was negligent in protecting his money in their custody. A conclusive evidence is: “Evidence so strong as to overbear any other evidence to the, contrary … Evidence that so preponderates as to oblige a fact-finder to come to a certain conclusion,” see the Black’s Law Dictionary, 8th Edition page 396. A credible evidence means: evidence that is worthy of belief and oozing out from are liable source, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65;Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353.’
APPELLANT’S EVIDENCE CARRIES NO JUDICIAL WEIGHT
‘Since the appellant’s evidence were not admissible, relevant, conclusive, credible or more probable than those of the respondent, it, automatically, follows that the imaginary scale of justice would tilt against his case. This is because, the respondent’s evidence would outweigh his in terms of quality, not quantity. Indeed, I daresay, while the pans of scale of justice would magnet the evidence of the respondent, it would expel or repel those of the appellant on account of being inadmissible, irrelevant, inconclusive and incredible. In result, the appellant’s evidence in the scale will carry no judicial weight to compete with those of the respondent. On that score, I am impelled to hold that the judgment of the lower court was not against the weight of evidence before it.’]
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.
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✓ DECISION:
‘On the whole, having resolved the two issues against the appellant, armed with the law, the appeal is, totally, devoid of any jot of merit. It is unmeritorious, deserving visitation of dismissal on it. Consequently, I dismiss the appeal. For the avoidance of doubt, the decision of the lower court, delivered on 03/02/2012, dismissing the appellant’s suit, stands affirmed. The parties shall bear their respective costs in prosecuting and defending the doomed appeal.’
➥ FURTHER DICTA:
⦿ PARTICULARS OF NEGLIGENCE AND FRAUD MUST BE PROVIDED
It is settled law that in an action on negligence, the party suing must give particulars of the alleged negligence and to recover on the negligence pleaded in those particulars, see Spasco Vehicle v. Alraine (supra); Koya v.UBA Ltd. (1997) 1 NWLR (Pt. 481) 251; Machine Umudje v. SPDC(Nig.) Ltd. (1975) 9-11 SC 155; Diamond Bank Ltd. v. P.I.C. Ltd.(2009) 18 NWLR (Pt. 1172) 67; First Bank Nigeria Plc. v. Excel Plastic Industries Ltd. (supra). By the same token, a party who predicates his case on fraud must supply particulars of the fraud in his pleading, see Usen v.Bank Of W/A Ltd. (supra); Ntuks v. NPA (2007) 13 NWLR (Pt.1051) 392; Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR(Pt. 1053) 37; Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610; Eyav. Olopade (2011) 11 NWLR (Pt. 1259) 505; Otukpo v. John (2012)7 NWLR (Pt. 1299) 357; Belgore v. Ahmed (2013) 8 NWLR (Pt.1355) 60; Order 15 rule 3(1) of the Benue State High Court (CivilProcedure) Rules, 2007. Fraud connotes crime and when alleged in civil proceedings, it behoves the party alleging it to prove it beyond reasonable doubt, not on the balance of probability, see Otukpo v.John (supra); section 138(1) of the Evidence Act, 2004 (section135(1) of the Evidence Act, 2011). — Ogbuinya JCA.
⦿ THE PENULTIMATE COURT WILL CONSIDER ISSUES EVEN IF LACKING JURISDICTION IN THE CASE ON APPEAL JURISDICTIONAL ISSUE IS OVERTURNED
The foregoing legal expositions are sufficient to render the issue hollow and impotent. That would have drained this court of the jurisdiction to further consider the issue. However, this is a penultimate court. The law insists in this kind of circumstance, the court has to consider the issue or appeal in the alternative in case the Supreme Court, on the likely appeal to it, holds a contrary view. In such a case, the apex court would have the view of this court on the alternative consideration without the necessity of remittance, see Adah v. NYSC (2004) 13 NWLR (Pt. 891) 639; Tanko v. UBAPlc (2010) 17 NWLR (Pt. 1221) 80; Obiuweubi v. CBN (2011) 17NWLR (Pt. 1247) 80; Stowe v. Benstowe (2012) 17 NWLR (Pt 1306) 450; Elelu-Habeeb v. A.-G., Fed. (2012) 13 NWLR (Pt. 1318)423. In keeping with this current position of the law, I will proceed to consider the merit of the issue and, by extension, the appeal. — Ogbuinya JCA.
⦿ THREE INGREDIENT TO PROVE NEGLIGENCE
In the case of Donoghue v. Stevenson (1932) AC 562/(2002)12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords evolved three ingredients of negligence, which a plaintiff must establish, thus: that the defendant owed him a duty of care, that there was a breach of the duty and that the breach caused him injury or damage. These three ingredients have since been accepted and assimilated in the corpus of Nigerian jurisprudence, see Agbomagbe Bank Ltd. v. CFAO (1967) NMLR 173, (1966) 1SCNLR 367; FBN Plc. v. Associated Motors Co. Ltd. (1998) 10NWLR (Pt. 570) 441; Abubakar v. Joseph (supra); Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra). — Ogbuinya JCA.
⦿ INHERENTLY INADMISSIBLE DOCUMENT CAN BE JETTISONED AT JUDGEMENT WRITING STAGE
Nonetheless, it is the law, that an already admitted document can be jettisoned by a court at a judgment stage or by an appellate court if it is inherently inadmissible even if it was admitted without objection, see Abubakar v. Joseph (supra); Abubakar v. Chuks(2007) 18 NWLR (Pt. 1066) 386; Nwaogu v. Atuma (2013) 11NWLR (Pt. 1364) 117. Again, it is the law that a document not tendered by the marker commands no probative value because, he cannot be subjected to cross-examination on it, Belgore v. Ahmed(2013) 8 nwlr (pt. 1355) 60. — ogbuinya jca.
⦿ WHERE BELIEF IS DERIVED FROM ANOTHER SOURCE, PARTICULARS OF THE INFORMANT MUST BE GIVEN
Indisputably, where a deponent in an affidavit derives a belief from another source or person, the particulars of the informant, the time, place and circumstances of the information must be disclosed inline with the prescription of section 115 (3) and (4) of the Evidence Act, 2011, section 89 of the defunct Evidence Act, 2004, see JosienHoldings Ltd. v. Lornamead Ltd. (1995) 1 NWLR (Pt. 371) 254;Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78; Ahmed v. CBN(2013) 11 NWLR (Pt. 1365) 352. However, DW2 in that affidavit evidence stated what he personally heard and saw through his two organs of ears and eyes respectively. Put starkly, he never collated the facts from any other person so as to warrant showcasing his particulars, time and place of the information. — Ogbuinya JCA.
⦿ WHAT IS MEANS TO SAY THAT JUDGEMENT IS AGAINST THE WEIGHT OF EVIDENCE
It centers on whether or not the judgment of the lower court was not against the weight of evidence before it. A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial court cannot be supported by the weight of evidence advanced by the successful party which the court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial court. In ascertaining the weight of evidence, the trial court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v.Odofin (supra); Anyaoke v. Adi (1986) 2 NSCC, vol. 17, 799 at 806,(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR(Pt. 993) 60; Mil. Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt.1293) 291; Oyewole v. Akande (2009) 15 NWLR (Pt. 1163) 119;Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412. — Ogbuinya JCA.
⦿ THE LAW DOES NOT ACCOMMODATE SENTIMENT
I do share, wholeheartedly, with the empathy expressed by the lower court for the appellant. Unfortunately, the sympathy is a wasted one. The reason is simple. The law does not accommodate sentiments even when they occasion hardships on litigants, see Imegwu v. Okolocha (2013) 9 NWLR (Pt.1359)347; Kraus Thompson Org. Ltd. v. NIPSS (2004) 17 NWLR (Pt.901) 44.To take a contrary position will constitute an affront to the law. In all, I resolve issue two against the appellant and in favour of respondent. — Ogbuinya JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ogbuinya, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
G.O. Ezeudeagwu, Esq.
⦿ FOR THE RESPONDENT(S)
Dr. V.V. Tarhule.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
