➥ CASE SUMMARY OF:
First Bank v. Barr. John E. Oronsaye (2019) – CA
by “PipAr” B.C. Chima
➥ COURT:
Court of Appeal – CA/B/335/13
➥ JUDGEMENT DELIVERED ON:
Friday, 5th April, 2019
➥ AREA(S) OF LAW
Muddling of a customer’s account with another customer;
Costs of litigation.
➥ NOTABLE DICTA
⦿ BANK OWES A DUTY TO MAINTAIN CUSTOMER DETAILS CONFIDENTIALITY
In my view, this measure was put in place to protect each customer’s account from every form of fraud or possible mix up. The bank also owes its customer an unalloyed duty of confidentiality not to disclose these information to third parties and any breach of these duties could give rise to liability in damages if loss results. This duty arises between a banker and customer upon the opening of an account and continues beyond the time when the account is closed. See UBA v. Corporate Affairs Commission & Ors (2016) LPELR-40569 (CA); Christofi v. Barclays Bank Plc. (2000) 1 WLR 937. … It is not in dispute that the relationship between the Appellant and the Respondent was that of Banker and Customer. The Bank therefore owes the Respondent a duty to exercise high standard of care not only in managing the Respondent’s monies but also his information and details which are in its custody. See Mainstreet Bank Ltd v. Juumanwin Nig. Ltd. (2013) LPELR-21855 (CA); Agbanelo v. UBN (2000) 4 SC Pt. 1 Pg 243. — H.M. Ogunwumiju, JCA.
⦿ FACTS IN DEFENSE CASE MAY STRENGTHEN CLAIMANT’S CASE, AND MAY BE RELIEF UPON
There is no doubt that in civil matters, the onus of proof shifts as the evidence preponderates. I need to say here that a Plaintiff, as the Respondent herein, must succeed on the strength of his own case and not on the weakness of the defence … The rule however changes if the Plaintiff finds in the evidence of the defence facts which strengthen his own case. Where the exception has not happened, the Plaintiff’s case must fail. See Ezekiel Oyinloye v. Babalola Esinkin & Ors. (1999) 5 SCNJ Pg. 278 at 288; Akande v. Adisa & Anor. (2012) 15 NWLR Pt. 1324 Pg. 538 SC; Omoregie v. Aiwerioghene (1994) 1 NWLR Pt. 318 at 488. — H.M. Ogunwumiju, JCA.
⦿ FACTORS CONSIDERED IN AWARDING COST – LITIGATION
Speaking generally, costs as between party and party are given or awarded as an indemnity to the person entitled to them, usually a successful party at the conclusion of proceedings in a case, not as a bonus to him or imposed as a punishment to the losing party. REWANE v OKOTIE-EBOH (1960) SCNLR 461; UBN v SCPOK (NIG) LTD (1998) 12 NWLR 578; OGUNMOKUN v MILAD, OSUN STATE (1999) 3 NWLR (594) 261 at 287. In addition, in awarding costs, a Court is entitled to consider among other factors, the following: a) the summons fee b) duration of the case c) legal representation d) expenses incurred by the successful party in the ordinary course of prosecuting the case. e) The value or purchasing power of the Naira at the time of the award. See ONABANJO V EWETUGA (1993) 4 NWLR ( 2 8 8 ) 4 4 3 a t 4 6 0 ; DELTA STEEL CO. LTD v AMERICAN COMP. TECH. LTD (1999) 4 NWLR (597) 53 at 68. — H.M. Ogunwumiju, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. Ehinon Okoh, Esq.
⦿ FOR THE RESPONDENT
Mrs. C.G. Ekejiuba, Esq.
➥ CASE HISTORY
The facts that led to this appeal are as follows: The Plaintiff at trial (Respondent herein) was a customer with the Appellant and operated two accounts with the Appellant’s branch office at King’s Square, Benin City. The Respondent sometimes in 2008 went to the Bank to transact business on one of his accounts but could not do so as he was informed that the account name belonged to one John Okundia Oronsaye, the Respondent’s brother who was as at that time deceased. Every effort to resolve the issue for more than two (2) years failed as the Appellant went back and forth with various correspondence between the parties. Aggrieved, the Respondent filed a writ of summon at the Edo State High Court on 22/9/11 and claimed as follows:-
i. A declaration that the Defendant has no right to declare his account missing and later transfer his account to another person’s name.
ii. An order directing the Defendant to reinstate the Claimant’s account with them and state the exact amount now standing on each of the accounts with an update of each of the account.
iii. The sum of N20, 000, 000. 00 (Twenty Million Naira) as general damages for breach of contract and illegal; manipulation of the Claimant’s account. Pleadings were fully exchanged between parties. The Respondent testified in person, called two other witnesses and tendered Exhibits in proof of his case while the Appellant called one witness and also tendered Exhibits in defence.
In a considered judgment, the trial Court granted the reliefs sought by the Respondent, and awarded costs of Five Hundred Thousand Naira (N500, 000. 00) against the Appellant. Dissatisfied, the Appellant filed a Notice of Appeal on 11/7/13.
➥ ISSUE(S) & RESOLUTION
[APPEAL DISMISSED]
I. Whether in the entire circumstances of this case, the trial judge was justified to have granted the reliefs sought and Five Hundred Thousand Naira Only as costs in favour of the Respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. “I have read through the Record and I cannot find a place where the Appellant proffered any reason at all why this mix up occurred. I completely agree with the learned trial judge when he held at Pg. 57 of the Record that the Appellant owes the Respondent a duty to explain what happened to his accounts. The major complaint of the Appellant in this appeal is that the onus of proof rested squarely on the Respondent and did not shift since he sought declaratory relief in the first head of his claim.”
B. “After the Respondent had called witnesses and proved that he in fact opened two accounts (one current and one domiciliary) with the Bank, he had discharged the initial legal and evidential burden, the onus shifted on the Bank to prove that he never opened two accounts one of which was a Naira and the other a domiciliary account. The Bank could not state categorically that he never opened the second disputed domiciliary account since they admitted to seeing an account which had the picture of the Respondent but the name and signature of his brother. In the circumstances of this case, given the fact that in the Banking business, it is the duty of the Banker to keep the books of Account, the Appellant was indeed obliged to supply the Respondent with an updated Statement of Account in respect of the missing domiciliary account.”
C. “A careful reading of the Respondent’s claim and his uncontroverted evidence on oath shows that he had to go to the Bank’s offices several times and even to their head office over a period of time before he had to resort to litigation to enforce his rights as a customer or get the Bank to fulfill their own obligations under the terms of the contract between the parties. It must be borne in mind that the Bank as Appellant was not able to tell the Respondent the Account standing to his credit in respect of a domiciliary account which they had muddled up. The Respondent is entitled to costs of this Litigation caused by the irresponsible behavior of the Appellant Bank. In my humble but firm view, the Learned trial judge exercised his discretion judicially and judiciously in awarding the costs of N500, 000. 00. at trial in favour of the Respondent.”
.
.
.
✓ DECISION:
“In the circumstances, the sole issue is resolved against the Appellant. I am of the firm view that the Appeal should be dismissed as it has absolutely no merit. The judgment of Hon. Justice Efe Ikponmwonba in Suit No B/648/2011 delivered on 4/7/13 is hereby affirmed including the order as to costs. It is obvious that the Respondent is entitled to the costs of this Litigation in this Court as costs follow events and the Respondent should be compensated for being dragged to the appellate Court on a matter in which a responsible and credible Bank should have thrown in the towel and given the Respondent the information he needs on his account. I also award the sum of N500, 000.00. (Five Hundred Thousand Naira only) in favour of the Respondent as costs of the Litigation in this Court against the Appellant. Appeal Dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ PROVING PAYMENT OF MONEY INTO A BANK ACCOUNT
As proof of payment of money into a bank account, the Supreme Court in Saleh v. B.O.N Limited (2006) 6 NWLR Pt. 976 Pg. 316 at 327 held that: “In a situation such as this, where the appellant claimed to have repaid the loan overdraft against the statements of accounts tendered by the respondent bank showing non-payment by the appellant, the proof of payment by the mere ‘ipse dixit’ of the appellant cannot be sufficient proof of repayment of the debt. See Debs v. Cenico (Nig.) Ltd. (1986) 6 SC. 176 (1986) 3 NWLR Pt. 32 Pg. 846. The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgment showing on the face of it that the Bank has received the payment. A bank teller dully stamped with the official stamp of the Bank and properly initialed by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt needs not prove more unless payment is being challenged.”
⦿ BANK HAS DUTY TO EXERCISE REASONABLE CARE IN BANKING BUSINESS
New Improved Manibannc Ventures Ltd v. FBN Plc. (2009) LPELR 8757 (CA); (2009) 16 NWLR Pt. 1167 Pg. 411 the Court held thus:- “It is settled law 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 operations within its contract with its customers. The duty to exercise reasonable care and skill extends over a whole range of banking business within the contract with the customer.” See also Agbanelo v. U.B.N (supra); Diamond Bank Plc v. Dr. Levi Chulks Monanu (2012) LPELR-19955 (CA); Standard Trust Bank Ltd. v. Anumnu (2008) 14 NWLR Pt. 1106 Pg. 125; UBN Plc. v. Chimaeze (2014) 9 NWLR Pt. 1411 Pg. 166 (SC).
⦿ CONTRACTUAL RELATIONSHIP BETWEEN BANKER AND CUSTOMER CREATES A DUTY – BREACH RESULTS IN NEGLIGENCE
In Diamond Bank Plc. v. Wellcare Alliance Ltd. (2015) LPELR-40762 (CA), the Court held as follows: “I share the re-instatement of the law by my learned brother that the Appellant as a banker to the Respondent owed the Respondent a duty to exercise reasonable care and skill the breach of which entitles the Respondent to claim damages for negligence. It is settled law that the legal relationship between a bank and a customer based on contract is that of a Creditor and Debtor, or Principal and Agent. The creditor/Principal being the customer and the Debtor/agent being the bank. The contractual relationship imposes a duty of care on the Bank the breach of which will impose on the bank a liability of negligence. See Standard Trust Bank Ltd. v. Anumnu (2008) 14 NWLR Pt. 1106 Pg. 125; UBA Plc. v. Godm Shoes Industries (Nig.) Plc. (2011) 8 NWLR Pt. 1250 Pg. 590.”
⦿ AWARD OF COST IS AT COURT’S DISCRETION
Mrs Eno Umo v Mrs Cecilia Udonwa (2012) LPELR-7857 (CA), this Court held as follows per Garba JCA: “On the issue of costs, ordinarily, the assessment and award of costs in a case are left at the discretion of the Court by the relevant rules. For our purposes in the present appeal, Order 31, Rule 6 of the High Court of Cross River State (Civil Procedure) Rules 1987, applicable at the time of suit, provides thus: “6. Subject to the provisions of any applicable law and these Rules, costs, both actual and incidental to all proceeding in the High Court, including the administration of estates and trusts, shall be at the discretion of the Judge, and the Judge shall have full power to determine by whom and to what extent the costs are to be paid.”
⦿ DEFINITION OF “JUDICIAL” AND “JUDICIOUS”
The terms “Judicial” and “Judicious” were defined by the Supreme Court in the case of ERONINI v IHEUKO (1989) 2 NWLR (101) 46 at 60 and 61as follows: “Acting judicially imports the consideration of the interest of both sides weighing them in order to arrive at a just or fair decision. Judicious means:(a) proceeding from or showing sound judgment; (b) having or exercising sound judgment; (c) marked by discretion, wisdom and good sense.”
⦿ CONSIDERATIONS CONSIDERED WHEN COURT IS TO AWARD COST
This Court had, per Ikongbeh, JCA in the case of UZOMA v OKORIE (2000) 15 NWLR (612) 882 at 893, held that: “Matters such as the number of years it takes to conclude a case, the number of adjournments, processes that had to be filed and the transportation of counsel to and from the Court are such that the Court may take into consideration when fixing the amount of costs and Court may not need to expressly state so. Thus … the fact that the reasoning of the trial Court on the matter was not recorded did not necessarily make the decision on costs arbitrary.” See also CITIBANK Nig Ltd. v. Ikediashi (2014) LPELR22447; Total Engineering Services Team Inc. v. Chevron (2010) LPELR5032 (CA); Emori v. Egwu (2016) LPELR-40123 (CA).
➥ REFERENCED (OTHERS)
