➥ CASE SUMMARY OF:
DIAMOND BANK LIMITED v. MOCOK ONU NIGERIA LIMITED (2019) – CA
by PipAr Chima
➥ COURT:
Court of Appeal – CA/C/285/2017
➥ JUDGEMENT DELIVERED ON:
Friday, the 1st day of February, 2019
➥ AREA(S) OF LAW
Banker – customer relationship;
Negligence.
➥ NOTABLE DICTA
⦿ NATURE OF A CAUSE OF ACTION
A cause of action is that action which connotes every fact which is material to be proved before a competent Court of law to entitle the plaintiff to succeed or all those things necessary to give a right to relief in law or equity. Thus, it is the factual base or some factual situation, a continuation of which makes the matter in litigation an enforceable or an actionable wrong. Consequently, before a party files a matter in Court, he must possess a cause of action against some person(s) or institution(s). In other words, a plaintiff/claimant must show by his pleadings that he has a cause of action maintaining in a Court of law against the defendant. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ DETERMINING THE EXISTENCE OR NONEXISTENCE OF A CAUSE OF ACTION
In determining the existence or non-existence of a cause of action in a suit, the Court is to consider the Writ of Summons and the statement of claim. And what distinguishes a claim which discloses cause of action from the one that does not is that where a statement of claim discloses some reasonable cause of action on the facts alleged in it, it is where the claim has some chances of success and once it raises some issues of law or fact calling for determination by the Court. Put differently, it is irrelevant to consider the weakness of the plaintiff’s claim but whether it raise some questions fit to be decided by a Court. And for a statement of claim to be said to disclose no cause of action it must be such as nobody can understand what claim he is required to meet. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ BANKER – CUSTOMER RELATIONSHIP IS THAT OF A CONTRACT
By the combined effect of the said averments, the respondent maintained a current account with the appellant, a registered commercial bank. The nature of such relationship has been given recognition in plethora of judicial decisions that it involves a specie of contract with special usages with particular reference to monetary or commercial transactions. Consequently, a banker has a duty under its contract with its customer to exercise reasonable care and skills in carrying out its part with regards to transactions in its contract with its customers. The Banker’s duty to exercise reasonable care and skills stretches over the whole range of banking business within the ambit of the contract with the customer. This duty applies to interpreting, ascertaining and acting in accordance with the instruction of the customer. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ BURDEN OF PROOF LIES ON THE PLAINTIFF
The general rule in civil cases is that the burden of proof rests upon the party who substantially assert the affirmative before the evidence is gone into. Therefore, the burden of proof lies on the person who will fail assuming no evidence had been adduced on either side…Where the plaintiff as in this case, pleads and relies on negligence by conduct or action of the defendant, the plaintiff must prove by evidence the conduct or action and the circumstances of its occurrence, which give rise to the breach of the duty of care owed the plaintiff. And that it is only after this, that the burden shifts to the defendant to adduce evidence to challenge negligence on his part. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ TORT OF NEGLIGENCE AND THE ISSUE OF DAMAGES
The tort of negligence is a civil wrong consisting of breach of a legal duty to care which results in damage. Thus, three things must be proved before the liability to pay damages for tort of negligence and these are:- (a) That the defendant owned the plaintiff a duty to exercise due care. (b) That the defendant failed to exercise due care, and (c) That the defendant’s failure was the cause of the injury in the proper sense of that term. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ THE APPROACH TO A CLAIM IN NEGLIGENCE
The approach to a claim in negligence comes into operation in the following circumstances: (a) On proof of the happening of an unexplained occurrence; (b) When the occurrence is one which would not have happened in the ordinary course of things without the negligence on the part of somebody other than the plaintiff and (c) The circumstances point to the negligence in question being that of the defendant rather than that of any other person. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ NEGLIGENCE IS A QUESTION OF FACT NOT OF LAW
It is settled that negligence is a question of fact and not of law. So, each case must be decided in the light of facts pleaded and proved. No one case, is exactly like another. – NIMPAR, J.C.A. Diamond Bank v. Mocok (2019)
⦿ FAILURE TO PLEAD RELEVANT FACTS DEFEATS THE CLAIM
Pleadings just like other civil claims is a prerequisite to the establishment of a claim and in this case negligence. Failure to plead relevant facts would automatically defeat the claim. The Respondent failed to do the needful and therefore did not merit to have judgment, I therefore agree with my brother that the appeal is meritorious and succeeds. – Nimpar JCA. Diamond Bank v. Mocok (2019)
➥ PARTIES
APPELLANT
Diamond Bank Limited
v.
RESPONDENT
Mocok Onu Nigeria Limited
➥ LEAD JUDGEMENT DELIVERED BY:
Shuaibu, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Attah Ochinke, Esq.
⦿ FOR THE RESPONDENT
Chief Okey Obikeze.
➥ CASE HISTORY
By Writ of Summons and statement of claim filed on 22/6/2016, the plaintiff now respondent claimed against the appellant herein as follows: – (a) N500 million on the footing of compensatory and exemplary damages for the defendant?s negligence by failing to transfer funds from the plaintiff?s account to Mathew Egbeji. Upon being served with the originating processes, the defendant denied that it was negligent in carrying out the request of the claimant and therefore not liable. After exchange of pleadings the matter proceeded to trial with parties leading evidence and tendering documentary exhibits. At the end of the trial, the Court below entered judgment against the defendant in the sum of N3,000,000.00 as compensation and exemplary damages for negligence.
Dissatisfied with the judgment, the defendant now appellant filed this appeal.
➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED, IN PART]
1. Whether the learned trial judge was right when he held that the respondent disclosed a reasonable cause of action against the appellant and that the appellant breached a duty of care to the respondent.
RULING:
I have stated that once a claim raises some issues of law or facts calling for determination, same cannot be struck out because it discloses some reasonable cause of action and that it is not a relevant factor to consider the strength or weakness of the claim. From the above reproduced averments of the respondent’s pleadings, the respondent was challenging the way and manner the appellant handled his request for fund transfer to one Buturo Mathew Egbeji. This alone in my humble and respectful view, constitute a cause for which a full trial must be conducted. I therefore cannot but agree with the learned trial judge when he held that there was a reasonable cause of action against the appellant.
.
.
2. Whether the finding of the learned trial judge that the negligence in this case is not the failure of the transaction per se, bNDENT
1. CAPITAL OIL AND GAS LTD
2. MR IFEANYI PATRICK UBAH
3. ACCESS BANK PLS
⦿ CITATION
[2016] NGCA 23.
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Abimbola Osarugue Obaseki-Adejumo, JCA
⦿ APPEARANCES
* FOR THE APPELLANT
* FOR THE RESPONDENT
AAA
⦿ FACT (as relating to the issues)
The 1st and 2nd Respondents’ (Plaintiffs at the Trial Court) counsel sought to tender from the bar an order of the English Court made on 23rd January, 2013 in Suit No. 2012, Folio 1300 Access Bank Pic v. Rofos Navigation Ltd & 5 Ors before submitting viva voce that the Appellant and the 3rd Respondent were in breach of the order of the lower court made on 12th January, 2012.
He thereafter applied for an order restraining the Appellant from enforcing the order made by the English Court. This was vehemently opposed by the Appellant and the 3rd Respondent.
The trial judge adjourned to 28th January, 2013 to determine the admissibility of the photocopy of the order of the English Court sought to be tendered. On the adjourned date, the learned trial judge in a considered Ruling admitted the copy of the order of the English Court and made other orders, the basis of which the Appellant has filed an appeal against the Ruling of the lower court vide a Notice of Appeal.
⦿ ISSUE(S)
**PRELIMINARY OBJECTION
i. The grounds of appeal is argumentative.
**MAIN ISSUES
1. Whether the Learned trial court was right in granting injunctive reliefs against the Appellant based solely on oral application made by the counsel to the Respondents.
2. Whether the trial court was right in law when it made orders directing the Appellant to carry out certain decisions of the trial court in relation to case No. 2012 Folio. Access Bank Pic v Rofos Navigation & 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the court that the Appellant was not a party to the said London suit.
3. Whether the trial court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Pic v. Rofos Navigation & 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order.
4. Whether the trial court was right in law when it in essence decided the Appellant’s motion on notice to set aside the order of injunction made by the trial court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open court.
⦿ RESOLUTION OF ISSUE(S)
[PRELIMINARY OBJECTION: OVERRULED]
RULING:
i. While I am conscious of the settled position of law earlier stated that a ground of appeal must arise from live issues determined by the lower court, a careful study of the Notice of Appeal vis a vis the Ruling of the trial court appealed against by the Appellant before us shows that all the grounds arose from the issues that were considered by the trial court. I am of the {#a6} rm view that the other grounds, 1, 2, 3, 5, 6 and 7 of the Notice of Appeal with respective their particulars are related. They have been couched in a manner which is clear and devoid of any ambiguity. Even though the 1st and 2nd Respondents’ counsel is challenging the competence of the some of the particulars (not all) of grounds 1, 3, 5 and 7, assuming the objections are proper, which I am unable to hold as such, it is obvious that there are other particulars which can sustain the respective grounds as contained in the Notice of Appeal.
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE 1ST & 2ND RESPONDENTS.
RULING:
i. In the first place, as I have earlier noted, the proceedings before the lower court leading to the instant appeal is sui generis, a special one based on allegation of contempt against one or two parties before the lower court. While it may be argued that the order of the lower court was made in favour of the 1st and 2nd Respondents, the order allegedly violated is “an order of the court” and not necessarily that of the parties (though made in their favour), which possesses the judicial authority and cannot be displaced except by the court itself. Therefore, where a court is faced with set of facts and circumstances as in the instant case, the court has an inherent power to ensure that the sanctity of the court is not eroded. This it can do on the application of any of the parties, either orally or by formal application. This however does not prejudice the court itself to raise the issue suo motu. To accept the contention of the Appellant that the lower court can only give a Ruling bothering on whether its positive and subsisting order had allegedly been violated upon the filing of an application by the parties vide a motion or summons is to leave the court at the mercy of the litigants in protecting its most prized property its judgment or orders. It is typical of a court of justice to preserve the integrity of the Judiciary and the sanctity of the order of Court and this can be achieved by whatever means and procedure that falls within the ambit of the inherent powers of the court. To this extent, I am of the firm view that the lower court cannot and should not be said to have erred in the conclusion it reached as per the noncompliance with the provision of Order 28 of the Federal High Court (Civil Procedure) Rules, 2009, which I earnestly believe will not be utilized as a clog in the exercise of the inherent powers of the court as protecting its sanctity. Therefore, the learned trial judge was right in law in entertaining the reliefs sought by the 1st and 2nd Respondent geared towards compelling obedience to the subsisting order of the court based on oral application made by the 1st and 2nd Respondents.
2. ISSUE 2 IS RESOLVED PARTLY, IN FAVOUR OF THE APPELLANT.
RULING:
i. While it may be conceded as held that the Appellant is a beneficiary of the order of the English Court; I must say that the fact that a party is a beneficiary of the consequence of the act or conduct of another party is not sufficient enough to hold it liable for the act or omission of the latter party. In the instant case, before the Appellant can be held to have flouted a subsisting order of the lower court, there must be evidence on record to show that it indeed acted in contravention of the order so made. This is not so here. Consequently, I am of the firm view that the finding of the trial court that the Appellant indeed flouted its subsisting order is perverse.
ii. As the Appellant’s counsel rightly noted, every court is under the bounden duty to ensure that it refrain from making any order or giving any direction to any party, which is incapable of being obeyed by whom it is directed at. Orders of court ought not to be made in vain but must be of such nature that it is susceptible of being obeyed by the subject. In the case at hand, the learned trial judge made sundry orders against the Appellant and the 3rd Respondent on the premise that the Appellant and the 3rd Respondent jointly and severally violated the subsisting order of the court. As earlier noted, the learned trial judge erred in this regard.
iii. The Appellant lacks the requisite legal capacity to discontinue the proceeding as it will be deemed a meddlesome interloper by the English court unless it will attempt to make an application to be joined as a party therein, which no doubt will be contrary to the subsisting order of the lower court which the court is forcefully but rightly protecting vide the orders it made on the 28th January, 2013. Nonetheless, having been a beneficiary of the order of the English Court, the learned trial judge was right to have restrained the Appellant from enforcing the said order. This no doubt is conceded by the Appellant as its complaint is directed solely at the order to discontinue under the extant issue.
3. ISSUE 3 WAS ADJUDGED TO BE ACADEMIC.
4. ISSUE 4 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENTS.
RULING:
i. The learned judge erred when he made pronouncement on the Appellant’s pending application which upon no argument had been canvassed by parties thereon.
⦿ REFERENCED
Order 6 of the Court of Appeal Rules, 2011.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In OLORUNTOBA-OJU & ORS. v. ABDURAHEEM & ORS [2009] 13 NWLR (PT 1157) 83 SC; [2009] LPELR 2596 (SC), the Apex Court, per ADEKEYE, JSC, echoed thus: “An appeal is a challenge against the judgment of a trial court and it is never predicated on what a court has not decided in its judgment or ruling. Therefore, a ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by the appellant. In other words, a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against… According to the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point, that as soon as it is read, the error and misdirection complained against be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading particulars. It should also not be argumentative. The particulars must relate to and flow from the grounds of appeal. Where a ground of appeal cannot stand as a result of its incompetent particular that ground of appeal is defective and it ought to be struck out.”
AAAA
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
Evidently, the essence of ground of appeal is [to] indicate the error of law or facts alleged by the Appellant as the defect in the judgment appealed against and upon which the Appellant seeks to set aside. – Obaseki-Adejumo, JCA. Coscharis v. Capital (2016)
Therefore, this court will not readily hold out as incompetent, grounds of appeal that essentially states the complaints of the Appellant containing the reasons for which the Appellant considers the decision of the lower court to have been reached wrongly, unless same is not a reflection of the matters dealt with by the trial court or matters which ought to have been considered and pronounced upon having been properly brought before the court. – Obaseki-Adejumo, JCA. Coscharis v. Capital (2016)
It is elementary principle of adjudication that where a court is faced with circumstances, as in the instant case, where it is obligated to make certain findings and orders, same must be founded on the ground upon which it has received argument from the parties. In essence, the decisions of a court must be restricted to the matters specifically brought before it by the parties but where such matters are raised suo motu by the court, the parties must be heard before any pronouncement is made thereon. – Obaseki-Adejumo, JCA. Coscharis v. Capital (2016)
* SUBSTANTIVE
