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Fijabi v. FBN (2021) – CA

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➥ CASE SUMMARY OF:
Fijabi v. FBN (2021) – CA

by PipAr Chima

➥ COURT:
Court of Appeal – CA/IB/496/2014

➥ JUDGEMENT DELIVERED ON:
Friday, March 19, 2021

➥ AREA(S) OF LAW
Banker – customer

➥ NOTABLE DICTA
⦿ COURT IS BOUND WITHIN THE RELIEFS CLAIMED
The Appellant having so formulated and claimed the desired paregoric as the relief from the Court, the Court, the Appellant and all the parties became bound by the relief as framed as it is not the duty of the Court to grant any relief outside what had been claimed. – Ogakwu, J.C.A.

⦿ PRESUMPTION AS TO CORRECTNESS OF TRIAL COURT JUDGMENT
The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. – Ogakwu, J.C.A

⦿ DUTY OF BANK TO EXERCISE REASONABLE SKILL
Without a doubt, a banker has the duty to exercise reasonable care and skill in regard to its customer’s affairs. 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 with regard to the operations within its contracts 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 and includes interpreting, ascertaining and acting in accordance with the instruction of 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 circumstances where it has been alleged that a bank was negligent, as in this case, the circumstances must be such that establishes that the bank was not prudent or did not act in a satisfactory manner, in which case the tort of negligence will arise; since a prudent banker will never ignore the instruction given by the customer. – Ogakwu, J.C.A

Available:  Registered Trustees of Auto Spare Parts and Machinery Dealers Association & Anor v. Mr. Obojiofor Obinna John & Ors (2020)

⦿ DECISION OF COURT SHOULD BE READ IN WHOLE
Now, it is abecedarian law that the decision of a Court is not to be read in convenient instalments. The decision must be read as a whole in order to appreciate the ratio decidendi in the case. – Ogakwu, J.C.A

➥ PARTIES
Mrs. Abimbola Fijabi (nee Kayode) [substituted for Akinyele Timothy Kayode (deceased)]

v.

First Bank of Nigeria Plc

➥ LEAD JUDGEMENT DELIVERED BY:
Ugochukwu Anthony Ogakwu, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT
– Chief T. A. Obisesan.

⦿ FOR THE RESPONDENT
– A. Adeyemo, Esq.

➥ CASE HISTORY
The apercu of the Appellant’s case is that Akinyele Timothy Kayode (the original Claimant) was a customer of the Respondent at its Bank Road, Dugbe, Ibadan Branch. The original Claimant maintained a current account and a fixed deposit account. The grouch of the original Claimant and on the basis of which the cause of action was ventilated is that without instructions from him in that regard, the Respondent terminated his fixed deposit account, transferred the funds in the same to his current account and allowed withdrawals to be made from 2 of the said current account, when the signature on the cheques with which the withdrawals were made was different from the mandate of the original Claimant.

Available:  Shell Petroleum Development Company of Nigeria Limited V. Chief N.Y. Allaputa (CA/PH/144/2001, 28 Feb 2005)

Contending that the Respondent was negligent by failing to protect the funds in the accounts of the original Claimant kept with them, the action, the provenance of this appeal, was instituted claiming the relief, inter alia:

(i) AN ORDER directing the Defendant to pay to the plaintiff the sum of N3,622,140.89 which sum was standing to the credit of the Plaintiff as at 17th January, 2005 in his fixed deposit account kept with the Defendant at its Bank Road, Dugbe, Ibadan Branch.

➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]

I. Whether the trial Judge in dismissing the claim of the appellant as claimant delivered a judgement that was lacking in merit and failed to uphold justice.

RULING: IN RESPONDENT’S FAVOUR.
I.A. It is instructive that the Appellant on record was substituted based on the fact that her siblings authorized that she be substituted for their deceased father. The Appellant did not testify at the lower Court. There is nothing in law which requires her to testify, if she can otherwise prove her case. But with respect to the issue as to whether Olufemi (Femi) Akintunde Kayode to whom the cheques drawn on the original Claimant’s account were issued and who the Respondent tendered photo identifications of in evidence; the best evidence of whether the person in the said photo 27 identification is the son of the original Claimant, could only have come from the Appellant on record, unfortunately she did not testify. Little wonder then that, the lower Court was unable to accept the testimony of the CW1, who is not a member of the family of the original Claimant, and preferred the case of the Respondent in this regard.

Available:  David Amadi v. Attorney - General, Imo State (CA/PH/417A/2007, 18 May 2012)

I.B. The lower Court in resolving the issue of whether the signature instructing the termination of the fixed deposit account was the same as that in the original Claimant’s mandate card, rightly in my view, gave credence to the fact that the fixed deposit receipt, which only the original claimant could have, was attached to the instructions for termination; furthermore, and again rightly in my view, did a visual comparison of the signatures as it is empowered to do by Section 101 (1) of the Evidence Act, 2011.
The lower Court did not see any dissimilarities in the signature and consequently found and held that it was the original Claimant who issued the instruction and cheques. In fact, no dissimilarity in the signatures has been alluded to or highlighted on appeal.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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