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IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP, HON. JUSTICE A.A.I BANJOKO – JUDGE

DATED THE 27th OF MARCH 2018

SUIT NO: FCT/HC/CV/868/2016

BETWEEN:

OMONISAYE EMMANUEL SUNDAY……………………… PLAINTIFF

AND

1. FIRST BANK OF NIGERIA PLC

2. FIRST CITY MONUMENT BANK PLC.….…………… DEFENDANT

LATEEF FAGBEMI SAN with THOMAS OJO ESQ., B.E. SALAKO,

R.U.IGWEFOR THE PLAINTIFF

DANIEL EZE ESQ and KASSIM A. OYINWOLA ESQ FOR THE 1ST

DEFENDANT

ABU DENNIS ESQ and LUKMAN SAADU FOR THE 2ND

DEFENDANT

JUDGMENT

By way of a Writ of Summons dated the 14th of December 2015,

filed under the Undefended List Procedure Rules, and

subsequently transferred to the General Cause List, the Plaintiff is

praying the Court for the following Orders:-

a. An Order of this Honorable Court directing that the sum of

Eight Hundred and Thirty Thousand Naira (N830, 000.00),

being the sum of money belonging to the Plaintiff, which was

fraudulently withdrawn from the 1st Defendant and

transferred to the 2nd Defendant, be returned and/or

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reverted back to the Plaintiff’s account with the 1st

Defendant.

b. The sum of Five Million Naira only (N5, 000, 000.00) being

general damages for the 1st Defendant’s breach of contract

and 2nd Defendant’s negligence for failure to reverse the

Plaintiff’s said sum of Eight Hundred and Thirty Thousand

Naira Only (N830, 000.00) unlawfully transferred from the

Plaintiff’s Account No. 3017633650 maintained with the 1st

Defendant to Account No. 2251933213 maintained with the

2nd Defendant by one Oforah Ebere Felix

c. Fourteen Percent (14%) interest on the Judgment sum from

the date of Judgment till the date of final Liquidation of the

Judgment Sum.

d. Such further or other consequential Orders the Honorable

Court may deem just and proper in the circumstance of this

Suit.

Filed alongside the Writ was the Plaintiff’s Statement of Claim

dated the 4th of May 2016, Witness Statement on Oath and

Accompanying Documents.

In response, the 1st Defendant filed her Statement of Defence

dated the 8th of June 2016, and her Witness Statement on Oath

deposed to by one Chinwe Cynthia Egbuna.

Subsequently, the 1st Defendant obtained the Leave of the Court

and substituted the Witness Statement on Oath of Chinwe Cynthia

Egbuna for that of Friday Ichofu, via an undated Motion on Notice

filed on the 25th of November 2016.

Also, in response to the Plaintiff’s claims the 2nd Defendant filed

her Statement of Defence and accompanying processes via a

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Motion on Notice for extension of time, dated the 9th of June 2016

and filed on the 10th of June 2016.

The Plaintiff, jointly responded to the Defendants’ claims in his

Joint Reply filed on the 13th of June 2016, accompanied by a

second Witness Statement on Oath.

Having exchanged Pleadings, the Trial commenced.

At the Trial, the Plaintiff testified solely in support of his case, and

the Defendants both called one Witness each in support of their

claims.

The Summary of the Case is as follows:-

The Plaintiff, a Businessman had his Bank Account with the 1st

Defendant, a Registered Company carrying out Banking Business.

According to the Plaintiff his Account No. 3017633650 was

opened in December 2004, at the 1st Defendant’s Abuja Airport

Branch, and he has maintained the Account ever since.

The incident which brought about the filing of this Suit occurred

on the 23rd of August 2013. According to the Plaintiff, he received

an E-mail from the 1st Defendant demanding for an update of

information regarding his Account. Without any suspicion of foul

play, he responded to the e-mail and supplied his Account Details,

as well as his Password. Immediately, he received an alert of a

Single Credit Funds Transfer in the sum of N830, 000.00 (Eight

Hundred and Thirty Thousand Naira) from his Account to

Account No. 2251933213, belonging to one Oforah Ebere Felix

domiciled with the 2nd Defendant, another Bank.

Upon receiving the alert, the Plaintiff claimed he promptly alerted

the 1st Defendant, and the transaction was traced to the 2nd

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Defendant’s Branch in Awka. Further steps were taken and he

reported the incident to the Divisional Police, Central Police

Station, Awka, Anambra State. In the course of the Police

investigation, Oforah Ebere Felix the recipient of the fund was

apprehended, and he confessed to committing the Fraud, which

was fully documented in the Police Investigation Report dated the

25th of October 2013 and copies of the Report were forwarded to

the Defendants.

The Account Statement of Oforah Ebere Felix revealed that as at

the 28th of August 2013, there was a balance of Eight Hundred and

Eighty Nine Thousand Naira (N889, 000.00) in the Account, and

between the 30th of August 2013 to the 30th of September 2013,

the Account balance rose to Eight Hundred and Ninety-One

Thousand, Six Hundred Naira (N891, 600.00), and from the 30th of

September 2013 to the 11th of November 2013, no withdrawal

was made from the Account.

According to the Plaintiff, the Defendants received the Police

Investigation Report on the 29th day of October 2013, and despite

notice of this Report, which indicated the funds were proceeds of

crime, the recipient of the funds, Oforah Ebere Felix, still made a

withdrawal on the 12th of November 2013. This was twelve days

after the service of the Police Report on the 2nd Defendant.

Therefore, the Plaintiff contended that the 2nd Defendant omitted,

neglected and failed to take reasonable steps to place necessary

caution on the Account and stopping withdrawals therefrom, in a

bid to safeguard the funds.

This neglect has caused the Plaintiff to lose the sum of Eight

Hundred and Thirty Thousand Naira (N830, 000.00), which has

occasioned him untold financial hardship. The Investigation

Report advised that the funds be transferred back to the Plaintiff’s

Account with the 1st Defendant.

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According to the Plaintiff, he had waited patiently for the 2nd

Defendant to act on the Police Report, but there was no response

from both Defendants. The lack of response prompted him to

contact the 1st Defendant via e-mail, re-informing her of the Police

Investigation Report, pleading that they take steps to enable him

have access to his money.

The 1st Defendant responded to the Plaintiff’s E-mail that unless

the 2nd Defendant remits back the money, by instructing Oforah

Ebere Felix to fill a Transfer Form to that effect, they could do

nothing about the situation, thereby leaving the fate of the

Plaintiff’s funds at the mercy of the 2nd Defendant and the alleged

fraudster.

In desperation and in dire need, the Plaintiff proceeded to the 2nd

Defendant’s Branch in Awka to beseech the Bank to ensure the

reversal. This resulted in him shuttling between Awka and Abuja.

After several trips to and fro, the 2nd Defendant informed him to

his utmost dismay, to go and obtain a Court Order before the

money could be released to him or reversed in his favor. So far, no

step has been taken by the Defendants to reverse his money.

The Plaintiff claims that both Defendants owed him a duty of care

to protect and safeguard his interests upon their awareness of the

fraud, and prevent the funds in the 2nd Defendants custody from

being withdrawn to the injury of the Plaintiff.

In his efforts to reclaim his funds, he instructed his Solicitors to

lodge a Complaint at the Central Bank of Nigeria, and a Letter of

Complaint dated the 11th of August 2014 was written to the

Central Bank of Nigeria, which was forwarded to the Registered

Branches of the Defendants. Only the 1st Defendant responded to

the Letter, and denied liability, but the 2nd Defendant failed to

respond to any correspondence from the Plaintiff.

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According to the Plaintiff, the Letter dated 24th of October 2014,

which the 1st Defendant failed to respond to, raised questions as

to the sincerity of the 1st Defendant towards ensuring the

retrieval of his money from the 2nd Defendant.

The Central Bank of Nigeria after reviewing the facts presented

before her, responded via a Letter dated 27th of October 2014, and

urged the Plaintiff to continue to seek the assistance of the Police

in resolving the matter.

It has been well over a year since the incident happened and there

has not been any progress, and as a result the Plaintiff claims his

business has suffered, and he has incurred monumental debt as a

cost for instituting this action.

At the Trial, the Plaintiff who testified on the 13th of June 2016, as

sole witness in support of his claim, adopted his several Witness

Statements on Oath tendered the following documents:-

a. Police Investigation Report dated 25th of October marked as

Exhibit A

b. Acknowledged Copy of the Police Investigation Report by

FCMB, the 2nd Defendant, marked as Exhibit B

c. Plaintiff’s Solicitor’s Letter to the Central Bank of Nigeria,

dated 11th of August 2014 marked as Exhibit C

d. First Bank Response Letter to the Plaintiff’s Solicitor dated

the 19th of August 2014, marked as Exhibit D

e. Plaintiff’s Solicitor’s Letter to the Central Bank of Nigeria,

dated 24th of October 2014 marked as Exhibit E

f. FCMB Statement of Account of Oforah Ebere Felix, for the

period from 1st June 2012 – 17th January 2016, printed on

the 10th of June 2016, marked as Exhibit F

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g. Central Bank of Nigeria’s Response Letter to the Plaintiff’s

Solicitor dated the 27th of October 2014, marked as Exhibit

G.

Under Cross-examination by Counsel to the 1st Defendant, the

Plaintiff admitted that the 1st Defendant Bank had informed him

via SMS not to divulge his Password, which was personally to

anyone. But, the same 1st Defendant in August had said that every

three months he should renew his username and password.

According to the Plaintiff, he was a Novice and presumed the E-

mail he received to be the instruction to renew his Password and

stated that when he realized his mistake, he immediately

informed the 1st Defendant.

Finally, the Plaintiff was told during one visit to Awka, by the 2nd

Defendant’s Bank manager that the money in Oforah Ebere’s

Account at the time was much more than his money, and he was

told to tell the Culprit to transfer the money back to him. The

transfer of his money back into his account this was not effected.

Under Cross-examination by Learned Counsel to the 2nd

Defendant, the Plaintiff admitted that he is familiar with Internet

Frauds, but stated that this Account was the first Account he had

ever opened. Currently, he has other accounts with other Banks.

When he received the Debit Alert at 6:43am, he contacted the 1st

Defendant via the telephone. The Plaintiff could not say at what

time he received the e-mail he responded to, but only knew the

time he sent his reply to the e-mail, which was at 6:43am.

After he got the Debit Alert he immediately, within a minute or

two called the 1st Defendant who said they will investigate and

report the incident to the Police.

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The 2nd Defendant got the Fraudster arrested but failed to press

charges and the Plaintiff admitted that he also did not press

charges.

The Nigeria Police had applied for access to the Ledgers, which

showed the history of the transactions in the Statement of

Account and had produced a Report at the end of their

investigation. The Plaintiff admitted that the Police Report did not

state that the 2nd Defendant was negligent and liable.

As at the 29th of October 2013 when the Police Report was served

on the 2nd Defendant, no transaction had occurred from Oforah’s

Account and from his Account Statement, it is evident that the

next transaction that took place, was after the 30th of September

2013, when the sum of Six Hundred Thousand Naira (N600,

000.00) was withdrawn, leaving a balance of Two Hundred and

Ninety-One Thousand Naira (N291, 000.00).

No Re-examination was done for the Witness, and the Plaintiff

closed his case.

In response to the Plaintiff’s claims, the 1st Defendant admitted

that the Plaintiff operates an Account with their Bank that was

opened on the 16th of December 2004.

As regards the unauthorized withdrawal of the sum of Eight

Hundred and Thirty Thousand Naira (N830, 000.00) from the

Plaintiff’s Account with the 1st Defendant on the 23rd of August

2013, the 1st Defendant denied sending an E-mail demanding for

an update of the Plaintiff’s information. The Police investigations

discovered that Oforah Ebere Felix was the culprit, and he

confessed to committing the crime. Therefore, the 1st Defendant

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argued that they were in no way liable for what happened to the

Plaintiff’s funds.

Further, the Plaintiff is aware of the 1st Defendant’s e-banking

product terms and condition against disclosure of personal

banking details to third parties, which exonerates the Bank in the

event of a Customer revealing his/her details to a third party. It

was as a result of the Plaintiff’s disclosure of his personal banking

details that Oforah Ebere Felix was able to successfully perpetrate

the Fraud.

According to the 1st Defendant, immediately the Plaintiff reported

the incident to them they acted promptly, by tracing the

transaction to Oforah Ebere Felix’s Account with the 2nd

Defendant Bank. They contacted the 2nd Defendant, and based on

the Plaintiff’s instruction requested the 2nd Defendant, through

their interbank relationship, to place a hold on the funds. But, the

2nd Defendant informed her that the funds were already

withdrawn on the 23rd of August 2013, at 8:19am, and therefore

there was nothing to place a hold on.

The 1st Defendant promptly informed the Plaintiff that his funds

had been withdrawn from the recipient’s account. The Account

holder, Oforah Ebere Felix was later apprehended while trying to

carry out transactions on the Account because of the Fraudulent

Restriction Alert placed on the account. According to the 1st

Defendant, the 2nd Defendant had notified them that Oforah Ebere

Felix was arrested, interviewed and handed over to the Central

Police Station, Awka, Anambra State for questioning. The 1st

Defendant, in turn, then informed the Plaintiff of the arrest, and

the Police Request for him to make a Statement.

Oforah Ebere Felix was interviewed in the presence of the

Plaintiff, where he admitted sending the scam mail, and

defrauding the Plaintiff of the sum of Eight Hundred and Thirty

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Thousand Naira (N830, 000.00), when he withdrew the amount

from his account with the 2nd Defendant.

According to the 1st Defendant, a purported Police Investigation

Report was forwarded to them.

Since Oforah Ebere Felix had withdrawn the funds, the 1st

Defendant claimed they had no control and could not carry out

the recommendation of the Police Investigation for the funds to

be reversed. Therefore, the Plaintiff was advised to liaise with the

Police so that Oforah Ebere Felix would fill a Transfer Form, if

need be. According to the 1st Defendant, the Plaintiff had told

them that Oforah Ebere Felix could not fill the transfer form.

The 1st Defendant denied occasioning any hardship on the

Plaintiff or breaching the duty of care they owe him. The 1st

Defendant acknowledged that the Plaintiff still sent them an e-

mail alleging that the funds were still in Oforah Ebere Felix’s

account, even after the 2nd Defendant informed them, that it had

been withdrawn.

The 1st Defendant also confirmed being copied with the Plaintiff’s

Letter to the Central Bank of Nigeria, which had attached, their

own response, wherein they denied liability. The Plaintiff’s Letter

of the 24th of October 2014, only joined issues with the 1st

Defendant’s Letter but did not raised any new questions which

had not been previously addressed by the 1st Defendant.

Finally, the 1st Defendant stated that they are not responsible for

the debt incurred by the Plaintiff as a result of the cost of

instituting this action. The Plaintiff’s action against the 1st

Defendant is frivolous, vexatious, smack gold digging and an

abuse of Court Process, and they prayed for same to be dismissed

with substantial cost.

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At the Trial, Mr. Friday Ichofu, a Relationship Manager of the 1st

Defendant Bank adopted his Witness Statement on Oath, and

testified as sole witness in support of the 1st Defendant’s case on

the 5th of December 2016. He tendered E-Banking Product Form

of the Plaintiff Account with the 1st Defendant, dated the 10th of

October 2012, admitted and marked as Exhibit H.

Under Cross Examination by Counsel to the 2nd Defendant, Mr.

Friday Ichofu admitted that the Fraud that occurred emanated

from the Plaintiff’s account with the 1st Defendant. He restated the

terms and conditions contained in the e-banking product

regarding non-disclosure of personal details to third party either

by e-mail, telephone or sms, and stated that it was due to this

unauthorized disclosure that the fraud was successful.

Under Cross Examination by Counsel to the Plaintiff, Mr. Friday

Ichofu testified as to his job function with the 1st Defendant

Airport Road Branch as a Relationship Manager, employed in

2007. According to Mr. Friday Ichofu, the 2nd Defendant informed

him that the Plaintiff’s money had been withdrawn, but he

confirmed after been shown Exhibit F, that the Statement of

Account of Oforah Ebere Felix showed the sum of Six Hundred

Thousand Naira (N600,000.00) was credited into the account as

at the 23rd of August 2013 when the incident occurred. Also, as at

the 30th of November 2013, the account balance was Eighty

Hundred and Eighty-Nine Thousand, Four Hundred Naira (N889,

400.00). He confirmed also from Exhibit F that there was no

transaction in October.

Under Cross Examination by Counsel to the Plaintiff, the Witness

was again referred to the time gap between the 29th of October

2013 when the 2nd Defendant received the Police Investigation

Report and the 12th of November 2013 when the next withdrawal

from the account was made, and he stated that a period of 12days

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was enough for the Bank to place the account on a fraudulent

restriction alert on Debit freezer. According this Witness, banks

would not usually wait for a Court Order or need for a Police

Investigation Report. If the restriction was placed, a withdrawal

would not have been possible.

This Witness stated that had the 1st Defendant been in the shoes

of the 2nd Defendant, they would have protected their customer

and disallowed any withdrawals. The fraudster still yet had access

to his account, and this confirms that the 2nd Defendant was

negligent and lackadaisical, leaving the Plaintiff to his fate by their

inaction. He agreed that they should hold the 2nd Defendant

responsible for the Plaintiff’s loss and suffering. The Plaintiff did

not need to be their Customer before they protect him by virtue of

Banker/Customer Standard Practice. Any Bank in Nigeria owes a

fellow Citizen a Duty of Care.

As at January 2016, the fraudster’s account balance was Three

Hundred and Fifteen Thousand, Eight Hundred and Seventy-One

Naira, Thirty Kobo (N315, 871.30), and this Suit was instituted

before that date. If after this date, the fraudster still had access to

his account, then it would amount to continuing negligence.

Under Re-examination, Mr. Friday Ichofu stated that the 1st

Defendant took steps immediately the Plaintiff received the debit

alert and alerted them. They in turn contacted the 2nd Defendant.

Finally, the 1st Defendant expected that though the fraudster had

utilized the Plaintiff’s funds, there was an inflow that summed up

to Eight Hundred and Eighty Nine Thousand Naira (N889,

000.00), between the 23rd and the 28th of August 2013, which

would have been enough to take care of the Complaint pending on

the Account. Since the funds were not in their custody the 1st

Defendant had not control over it.

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With the conclusion of DW1’s evidence, the 1st Defendant closed

her case.

In response to the Plaintiff’s claim, the 2nd Defendant confirmed

that a Cash Transfer was made to Customer, Oforah Ebere Felix,

but that they were not immediately notified of the fraudulent

transaction and their Customer had withdrawn the funds

standing in his account. According to the 2nd Defendant, the

fraudster should have been ordered to refund the money to the

Plaintiff when he was in Police Custody.

According to the 2nd Defendant, she could not on her volition

effect a transfer of the funds in the fraudster’s account to the

Plaintiff without his instruction or a Court Order. The 2nd

Defendant stated that at all times material to the Suit, the

fraudster, Oforah Ebere Felix had access to his account, and

withdrawals can only be stopped by an Order of Court

The 2nd Defendant vehemently denied owing the Plaintiff any duty

of care to carry out his instruction because they do not have any

contractual relationship with him. Also, that the Nigeria Police is

not a Regulatory Or Supervisory Organ of the 2nd Defendant and

cannot freeze the account without a Court Order.

Being a responsible Corporate Citizen they owe their customer

the fiduciary duty of care to protect their account and

information, and therefore cannot take instructions from the

Plaintiff who is not a Signatory to the account. Only with valid

instructions from the Account Holder, would the refund be made

and added that a Police Report does not qualify as a Court Order.

Further, other than a Customer/Banker relationship, the 2nd

Defendant had no other relationship with Oforah Ebere Felix, the

alleged fraudster.

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The 2nd Defendant further stated that since they do not have

Privity Of Contract with the Plaintiff, they would not be held liable

for the Plaintiff’s negligence in divulging his personal details to a

Third Party.

Also, the Central Bank of Nigeria, their Regulatory Body had

exonerated the 2nd Defendant of any wrongdoing in their Letter

written to the Plaintiff on the 27th of October 2014.

The 2nd Defendant denied that she did not respond to the Plaintiff,

stating that she had continuously communicated with him on the

need to approach the Court to aid the transfer.

Finally, the 2nd Defendant claimed she did not in any cause the

Plaintiff any hardship, and prayed the Court to dismiss the

Plaintiff’s claim with substantial cost.

At the Trial, the 2nd Defendant testified through her Witness Mr.

Balogun Kayode, a Staff of the 2nd Defendant employed on the 14th

of November 2014, working with the Internal Control Room. He

adopted his Witness Statement on Oath and urged the Court to

dismiss the Plaintiff case.

Learned Counsel to the 1st Defendant declined to Cross examine

him, but under Cross Examination by Counsel to the Plaintiff, he

testified that he had never worked with the Awka Branch of the

2nd Defendant, and his evidence is based on what he was told by

his colleague in Awka. He admitted that the incident happened

before he was employed, and restated that the money had already

been withdrawn.

Learned Counsel to the Plaintiff referred him to Exhibit F, the last

transaction on 23rd of August 2013, and he confirmed that there

was a balance of Six Hundred Thousand Naira (N600, 000.00)

standing in the account. Also, on the 28th of August 2013, the

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balance was Eight Hundred and Eighty-Nine Thousand Naira

(N889, 000.00), and by the 30th of August 2013 it was Eight

Hundred and Eighty-Eight Thousand, Three Hundred and

Twenty-Two Naira (N888, 322.00) but there were no transactions

between the 1st of October 2013 to the 11th of November 2013.

He was further referred to the Six Hundred Thousand Naira

(N600, 000.00) withdrawn by the fraudster, and he clarified that

it was a transfer return on the 12th of November 2013 to the 1st

Defendant received by the 2nd Defendant on the 29th of October

2013.

Mr. Balogun Kayode admitted that the 2nd Defendant was given

sufficient notice of the complaint. He denied stating in his Witness

Statement that an alert was placed on the Account but that a ‘Post

no Debit’ was placed on the 23rd of August 2013. Further, he

admitted that if an alert had been placed on the account, it would

be impossible for the holder to effect a withdrawal.

Finally, he confirmed the closing balance on the account to be

Three Hundred and Nineteen Thousand, Eight Hundred and

Sixteen Naira (N319, 816.00)

Under Re-examination, the Witness stated that the Account

Statement would not show ‘Post no Debit’ on the Account and this

was why the account holder was apprehended.

The 2nd Defendant then closed her case.

In joint response to the Defendants, in her Reply Pleadings, the

Plaintiff stated that Oforah Ebere Felix’s Account was a Student

Account and therefore, he could not make a withdrawal of more

than One Hundred and Fifty Thousand Naira (N150, 000.00)

without appearing personally to withdraw and without the

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authorization of the Bank Manager, both of which would involve a

face to face transaction.

Further, the Plaintiff in the company of the Investigating Police

Officer and the Culprit visited the Awka Branch of the 2nd

Defendant to further notify them of the on-going investigation

sometime in September 2013. At the time of this visit, the total

sum standing to the fraudsters account was Eight Hundred and

Ninety-One Thousand, Six Hundred Naira (N891, 600.00), which

was verified by the Branch Manager, Awka Branch.

Contrary to the 2nd Defendant’s assertion, the Awka Branch

Manager refused to co-operate with the Investigating Police

Officer, when he requested that they transfer the said sum back to

the Plaintiff on that day, but he insisted that the Plaintiff resort to

the Court to recover his funds.

The Plaintiff denied saying or responding to the alleged fraudster

filling out a transfer form, rather he insisted on the refund of his

money even if it required the fraudster filling out a transfer form,

but the Awka Branch Manager refused.

According to the Plaintiff, because he had to fly from Abuja to

Asaba, and proceed to Awka by road but did not have the

opportunity to have his money back as suggested by the 1st

Defendant. He maintained that the Defendants are jointly and

equally responsible and liable for his loss. He did not need a

privity of contract between him and the 2nd Defendant for her to

be liable in negligence to him, a third party.

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At the close of Trial, the parties were ordered to file their Final

Written Addresses.

The 2nd Defendant filed her Final Written Address on the 1st of

February 2017, via a Motion on Notice for extension of time. In

her Address, she formulated two issues for determination,

namely:-

1. Whether the Plaintiff has placed any evidence whatsoever

before the Honorable Court to prove his case against the 2nd

Defendant.

2. Whether in the entire circumstance of the case, the Plaintiff

has proved his case as required by Law, to entitle him to the

grant of the reliefs sought.

In turn, the 1st Defendant filed her Final Written Address on the

25th of April 2017, and in it formulated a Sole Issue for

determination, namely:-

1. Whether the Plaintiff has proved his claim to entitle him to

the Reliefs sought.

The Plaintiff filed his Final Written via a Motion for extension of

time dated the 3rd of August 2017, and in it formulated Three

Issues for determination, namely:-

1. Considering the state of Pleading and Evidence, whether the

1st Defendant is not liable in Negligence and Breach of

Contract?

2. Whether in the entire circumstance of this case, State of

Pleadings and Evidence, the 2nd Defendant is not liable in

negligence; and

3. Whether the Plaintiff is not entitled to the Reliefs claimed in

this Suit.

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The 2nd Defendant via a Motion on Notice for extension of time

dated the 27th of September 2017 filed her Reply on Points of

Law, in response to the Plaintiff’s Final Written Address.

All arguments of Counsel are duly noted and on Record.

However, it is worthy of note that the 2nd Defendant in his Written

Address submitted heavily that the Plaintiff’s Witness Statement

be expunged. It was his Submission that the Sole Witness of the

Plaintiff under Cross-examination admitted signing his Witness

Statement on Oath in the Firm. Based on this admission the

Plaintiff’s Witness Sole Deposition before the Court contravened

the Provisions of Section 112 of the Evidence Act 2011 that

prohibits the admission of an Affidavit which was sworn before

the deponent’s Legal Practitioner. Therefore, the Witness

Statement should be rejected and expunged for the records. He

placed reliance on the case of BUHARI VS INEC (2009) ALL

FWLR PT 459 PG 419, that the Supreme Court in this case while

interpreting Section 83 of the Evidence Act, 1990 (now Section

112) had no hesitation in expunging 18 depositions on Oath

Sworn before a Legal Practitioner. He also cited the Court of

Appeal decision in the case of CHIDUBEM VS EKENNA (2009)

ALL FWLR PT 455 PG 1692 Page 1708 per Hon. J Kekere-Ekun

(JCA) wherein 4 Depositions were discountenanced as a result of

their own evidence rebutting the presumption in favor of their

Written Depositions. He also made reference to a decided case by

this Court, Suit No. FCT/HC/CV/4181/11 MR THOMAS

SUNDAY GBAM VS FIRST CITY MONUMENT BANK PLC

delivered on the 25th April 2013, particularly at Page 25.

In response to this issue, the Plaintiff contended that the 2nd

Defendant’s submission in its entirety is a misconception and a

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misapplication of the Law. The facts of the cases cited and relied

on by the 2nd Defendant are clearly distinguishable from the facts

of the case at hand. On this premise, Learned Counsel submitted

that a decision of a Court must always be considered in the light of

its own peculiar facts or circumstances, as no case is identical to

another, though they may be similar. Each case is only an

authority for what it decides and nothing more, and he placed

reliance on the case of UDO VS STATE (2016) 12 NWLR

(PT.1525) 1, and the case of EMEKA VS OKADIGBO (2012) 18

NWLR (PT.1331) 55.

As regards the cases relied on by Counsel to the 2nd Defendant,

Learned Counsel to the Plaintiff submitted that the Supreme

Court’s decision in the case of BUHARI VS INEC (SUPRA), was on

different set of facts and do not avail the Defendant in this case.

According to Counsel, the appropriate case with similar facts as

this instant suit is the case of UDEAGHA VS OMEGARA (2010)

11 NWLR (PT.1204) 168. He also cited further the cases of FRN

VS NWOSU (2016) 17 NWLR (PT.1541) 226 @ 276 PARA A-G,

ATOLAGBE VS AWUNI (1997) 9 NWLR (PT. 522) 536 and

USMAN VS UMARU (1992) 7 NWLR (PT.254) 377.

It was his submission that the position taken by the 2nd Defendant

as being decided by all the cited authorities do not represent the

current judicial thinking neither do they apply to the peculiar

facts of this case.

Learned Counsel cited UDEAGHA VS OMEGARA (SUPRA),

wherein the distinction between an irregular Affidavit and an

irregular Witness Deposition was set out. The Court of Appeal in

this case stated that where a Witness in Court adopts an irregular

written deposition, the implication is that the Witness is re-

asserting on Oath what is contained in the irregular deposition

and such adoption makes all the evidence in the Written

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Deposition admissible. This situation was quite different from the

circumstances in BUHARI VS INEC (SUPRA). In that case, the

depositions, made contrary to Section 83 of the Evidence Act,

were never adopted in Open Court by their maker, and it was an

Affidavit.

Learned Counsel argued that a Statement of a Witness is different

from a mere Affidavit which stands on its own without any oral

backup and which are not subjected to Cross-examination. In

BUHARI VS INEC (SUPRA) the depositions were not adopted by

the Witnesses in the Open Court, but in this instant case the

Plaintiff’s Witness Deposition was adopted in him in the Open

Court. Also, the Witness Statement was duly signed and stamped

by the Commissioner for Oaths and not a Secretary to the

Tribunal as in BUHARI’s case. He cited the cases of UDUMA

ARUNSI (2012) 7 NWLR (1298) 55 @ 97 – 98 PARAS G – A and

AJAYI VS ALALADE (2015) 5 NWLR (PT.1452) 380 @ PARAS

D-G to say that it is now trite law that even an unsworn Statement

can be adopted in the Witness Box, just as the Plaintiff did in this

Suit.

Subsequently, after the adoptions of Final Written Addresses

were taken and the case adjourned for Judgment, Learned

Counsel to the 2nd Defendant presented the Court with an

Authority vide a Letter dated the 16th of March 2018, and filed on

the same date. This Authority, is the Court of Appeal’s latest

decision, coram Ogunwumiju (JCA) in the case of ONYECHI

EROKWU & ANOR VS JACKSON NWABUFO (2016) LPELR-

41515 (CA), wherein it was held that hitherto the Court had been

of the view that an unsworn deposition subsequently adopted in

open Court regularizes the deposition (the dictum has been

summarized in context)…however, that previous way of thinking

must perforce give way to the opinion of the Supreme Court in

21

BUHARI VS INEC (2008) 12 SCNJ 1 at 91. The term “Affidavit” is

Medieval Latin for “he has declared on Oath”. It is formal sworn

Statement of fact, signed by the deponent and witnessed as to the

veracity of the deponent’s signature by the taker of Oaths, such as

the Commissioner, Notary Public…An Affidavit must comply with

the requirements as set out in Section 107 – 120 of the

Evidence Act 2011.

In response, the Learned Counsel for the Plaintiff vide a Letter

dated the 19th of March 2018 presented the Court with another

decision of the Court of Appeal in the case of STEPHEN MANCHA

& 2 ORS VS SYLVESTER EMUKOWATE (2017) LPELR-43113

(CA)

In the said Letter, Learned Counsel to the Plaintiff was of the

opinion that the 2nd Defendant misconceived the issue regarding

the nature, status and legal implications of a Witness Statement

on Oath as distinguishable from an Affidavit. In placing reliance

on the case of ONYECHI EROKWU & ANOR VS JACKSON VS

NWABUTO EROKWU (2016) LPELR 4515 (CA) the 2nd

Defendant failed to appreciate the distinction.

According to him, the front-loading system of the Civil Procedure

placed a requirement for the Witness Statement to be filed along

with the Pleadings. At the Trial, the Witness is required to adopt

the Written Statement as his Evidence in Chief. He referred the

Court to the case of AHMED BALA ISHAQ & ANOR VS INEC &

ORS (2008) LPELR – CA/A/EP/25/08 that a Witness Statement

on Oath is a matter of the Rules and not the Evidence Act. He

referred to the case of IDRIS VS ANPP (2008) 8 NWLR

(PT.1088) 1 @ 97 PARAS. C-D, 153, PARAS F-G per Sanusi

(JCA) and Owoade (JCA)

22

Learned Counsel went on to set out the similarities of both an

Affidavit and a Witness Statement on Oath but added that though

a Witness Statement on Oath largely shares the characteristics

with an Affidavit, care must be taken not to legally equate it to an

Affidavit. This is because, as held in the case of ISHAQ & ANOR VS

INEC & ANOR (SUPRA), a Witness Statement on Oath perforce is

required to be physically adopted by the Witness at the Trial

before it can become evidence, whilst an Affidavit once filed can

be used as evidence and does not require adoption in open Court.

The Witness signing at the Law Firm, if at all he did, would only

affect the Form and not the Substance. More so as the

Commissioner for Oath’s Stamp is evident on it. He cited the Court

of Appeal’s decision in MANCHA & ORS VS EMUKOWATE

(2017) LPELR-43113 (CA) PAGE 52 and maintained that the

Supreme Court’s decision in BUHARI VS INEC (SUPRA) and

ONYECHI EROKWU & ANOR VS JACKSON NWABUTO EROKWU

(SUPRA) is clearly different from the case at hand.

Finally, he enunciated the doctrines of Stare decisis and Ratio

decidendi, and referred to the cases of SAVANNA BANK OF

NIGERIA LTD VS PAN ATLANTIC SHIPPING AND TRANSAPORT

AGENCIES & ANOR (1987) 1 SC 198, NATIONAL ELECTRIC

POWER AUTHORITY VS MRS P.O. ONAH & 7 ORS (1997) 1

SCNJ 220 and EMEKA VS OKADIGBO (2012) 18 NWLR

(PT.1331) 55 per Rhodes-Vivour (JSC) to the effect that Legal

Principles established in decided Authorities are not to be applied

across board and in all matters without regard for the facts and

issues framed for adjudication in a particular case.

Finally, Learned Counsel urged the Court to discountenance the

arguments of the 2nd Defendant because it is legally inapplicable.

23

Now, the Court has noted the well canvassed arguments from

both sides of the divide in regard to the irregularity of the Witness

Statement.

The Court notes that the Plaintiff filed two Witness Statements on

Oath. The first Witness Statement on Oath was filed on the 11th

May 2016 in support of the Pleading i.e. the Statement of Claim,

whilst the second Witness Statement on Oath was filed on 13th

June 2016 in support of the Plaintiff’s Reply to the Defendants’

Statement of Defence.

It is noted that the Plaintiff, during his Examination in Chief,

adopted two Witness Statements on Oath, both signed on

different dates. During his Cross-examination by Learned Counsel

to the 2nd Defendant, he made it known that he signed his Witness

Statement on Oath in the Firm. A minor issue arises, as to which of

the Plaintiff’s Statement on Oath is referenced or whether the

Contention relates to both Statements.

I have had a very careful look at the referenced Cases, and find

that the Plaintiff adopted these Two Statements unequivocally

before the Court. It is important to realize that citing an Appellate

Court’s Decision without demonstrating a similarity of Facts, and

enforcing compliance by a Lower Court, is futile. Assuming, there

were typographical errors in the Witness Statement, or even a

misstatement of facts, such as dates, time etc, the Witness is not

estopped from making corrections. I am persuaded that on the

facts, this case is distinguishable between that of BUHARI VS

INEC (SUPRA) and ONYECHI EROKWU & ANOR VS JACKSON

NWABUTO EROKWU (SUPRA).

In this case, the Court finds that the Plaintiff by acknowledging

and swearing to written depositions in Open Court to give Oral

Evidence regularizes the Depositions, and re-asserted on Oath is

24

contained in his Witness Statements. Statements of Witnesses

which are adopted during oral evidence on oath are different

from mere Affidavit Evidence that stands on its own without the

need for Oral Evidence or Cross-examination. Such adoption

makes all the evidence in the Written Deposition admissible.

…………………………………………………………………………………………

After a careful consideration, the Court finds three issues for

determination:-

1. Whether the 1st Defendant is liable to the Plaintiff for Breach

of Contract?

2. Whether the 2nd Defendant was Negligent in the manner

they handled the fraudulent transaction.

3. Whether the Plaintiff has proven his claims to justify a

reversal of the Funds.

In a civil trial, it is a generally accepted Principle of Law that the

burden of proof is on the balance of probabilities and the

preponderance of evidence. See Section 134 of the Evidence Act

2011 as Amended; SHOLA VS U.B.N LTD (2005) 6 NWLR (PT

922) PG. 422@440PARA E-F; ALHAJI AMINU ISHOLA VS

UNION BANK OF NIGERIA LIMITED (2005) LPELR-1550 (SC).

The ultimate burden of establishing a case is as disclosed on the

Pleadings. The onus is on the Plaintiff as distinct from the

Defendant to prove her case on a balance of probabilities. See the

25

case OYEDIRAN VS ALEBIOSU II (1992) 6 NWLR Part 249 page

550. Where the Plaintiff has successfully proven her case on the

preponderance of evidence, then she is said to have discharged

the onus placed on her by the law, and then the onus shifts to the

Defendant, and it continues to shift for it is not static. See N.M.S.I

VS AFOLABI (1978) 2 S.C. 79; EZEMBA VS IBENEME (2004) 14

NWLR (Pt.894) 617; ORJI VS D.T.M. (NIG) LTD. (2009) 18

NWLR (Pt. 1173) 467 S.C.

As regards the 1st Issue raised for determination, it is clear that

the Parties up until this dispute had a good Customer-Banker

Relationship, which is Contractual in its nature, see the cases of

AFRIBANK NIG PLC VS A. I. INVESTMENT (2003) FWLR Pt. 141

Pg. 184; (2002) 7 NWLR PT.765 P.40; ACCESS BANK VS

MARYLAND FINANCE COMPANY AND CONSULTANCY SERVICE

(2005) 3 NWLR PT.913 PG.460; BALOGUN VS NBM (1978) 3

SC 155. 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 the whole range of banking business within the

contract with the customer. Further, the bank has the mandatory

duty to protect the funds of its customers as held in by His

Lordship OMOKRI, JCA in the case of NEW IMPROVED

MANIBANNC VENTURES LTD VS FIRST BANK OF NIGERIA PLC

(2009) 16 NWLR (Pt. 1167) 411 CA

Clearly, the Plaintiff’s monies in custody of the Defendant, places

the Defendant in the position of a debtor with the Plaintiff as her

Creditor. These monies received by the Defendant are not held in

trust for the Plaintiff but are monies lent to the Defendant and the

Defendant undertakes to repay them, see the following cases,

PURIFICATION TECH NIG LTD VS A.G. LAGOS STATE (2004) 9

26

NWLR PT. 879 P. 665 CA; MAI VS STB LTD. (2008) ALL FWLR

(PT. 399) 552 AT 565 - 566, PARAS. F - B (CA); YESUFU VS

AFRICAN CONTINENTAL BANK LTD (1981) SC 74; BALOGUN

VS NATIONAL BANK OF NIG LTD (1978) 11 NSCC 135.

This relationship between a banker and its customer gives rise to

a duty of care that cannot be doubted. It is also settled that a bank

may incur liability if it commits a breach of its duty of care

resulting in injury to its customer. See the case of FCMB PLC VS

CP-TECH CONSTRUCTION COMPANY LTD (2015) LPELR-

25006(Pp. 83-84, Para. D-C) (CA)

It is clear that after the Plaintiff notified the 1st Defendant of the

Debit from his Account with them, they notified the 2nd Defendant

about the fraudulent transaction. There is no clarity as to how fast

they made the notification to the 2nd Defendant, but it is clear that

a prompt response from them was needed. It is also clear that the

1st Defendant did not have any control over the funds once it had

been transferred, and they need some other force or Law to be

able to revert the funds transferred, back into the Plaintiff’s

Account.

The Plaintiff needed to have shown the tardiness of the 1st

Defendant in raising an alert of caution or freeze Order to the 2nd

Defendant. Did they notify after an hour, two hours, a day, three

days or one month? There is nothing before the Court to show,

and no evidence elicited by the Plaintiff on the tardiness or lack of

swift action on the part of the 1st Defendant.

There is also the fact that the instigator of the funds transfer was

not a customer of the 1st Defendant and more importantly, is the

fact that the 1st Defendant did not divulge enough details to effect

that transfer. It was done under the hand of the Plaintiff himself.

27

Even after they alerted the 2nd Defendant, and even after the

Police Report, they still continued corresponding with the

Plaintiff. There is therefore, nothing extra by way of the duty

owed to the Plaintiff that was shown to have been breached or left

untouched.

Therefore, the Court is satisfied that the 1st Defendant did not

breach any duty of care owed the Plaintiff, and are accordingly

discharged from liability.

As regards the Second Issue, an action for Negligence is grounded

on a questions of Fact and not Law. Therefore each case must be

decided in the light of its own peculiar facts. See NGILARI VS

MOTHERCAT 1999 13 NWLR (Pt. 636). In general the three

main ingredients of Negligence are as follows:

(a). The Defendant owed the Plaintiff a duty to exercise due care.

(b). That the Defendant failed to exercise due care.

(c). The Defendants failure was the cause of the injury suffered

by the Plaintiff.

See the cases of UMUDJE VS SHELL BP CO (NIG) LTD KOVA VS

UBA LTD 1997 1 NWLR (Pt 481); OSIGWE VS UNIPETROL

2005 5 NWLR (Pt. 918) 261 CA

As Lord Wright stated in GRANT VS AUSTRALIAN KNITTING

MILLS LTD (1936) ARC 85, 103: All that is necessary as a step to

establish the Tort of Actionable Negligence is to define the precise

relationship from which the duty to take care is to be deduced. It

is however, essential in English Law that the duty should be

established: the mere fact that a man is injured by another's act

gives in itself no cause for action. If the act is deliberate, the party

injured will have no claim in Law even though the injury is

intentional, so long as the other Party is merely exercising a Legal

Right: if the act involves lack of due care, again, no case of

28

actionable negligence will arise unless the duty to be careful

exists.” ANYAH VS IMO CONCORDE HOTELS LTD (2002) 12 S.C.

(PART II) 77, Per EJIWUNMI JSC at P. 40-41 PARAS F-B

Basically, the 2nd Defendant has stated that it does not have a

contractual relationship with the Plaintiff, since he is not their

Customer. According to her, the only person who she shares a

Banker-Customer relationship with is the Culprit. Therefore, she

does not owe the Plaintiff any duty of care. The Court agrees with

the 2nd Defendant’s position to the extent that the Plaintiff indeed

did not have an account with her, and although his funds ended

up in the 2nd Defendant’s custody via fraudulent means, the

Plaintiff’s Banker is the 1st Defendant.

However, the duty to exercise reasonable care and skill extends

over the whole range of banking business the 2nd Defendant has in

her contract with her customers. Thus, the duty the 2nd Defendant

has, is not only to apply, interpret, ascertain and act in accordance

with the instructions of the customer as seen in the cases of UBA

PLC VS YAHUZA (2014) LPELR-23976(CA), AGBANELO VS

UNION BANK OF NIGERIA (2000) 7 NWLR (PT 666) 534,

STANDARD TRUST BANK LTD VS ANUMNU (2008) 14 NWLR

(PT 1106) 125, UNITED BANK FOR AFRICA PLC VS GODM

SHOES INDUSTRIES (NIG) PLC (2011) 8 NWLR (PT.1250) 590.

They are also to take reasonable care to ensure that they forestall

the incident of fraud, both perpetrated from and against their

Customers Account.

From Exhibit F the Statement of Account of Oforah Ebere Felix, it

can be seen that a total of Sixteen Withdrawals were made, some

of which were online transactions as well as ATM Withdrawals.

This was done by the Culprit in a bid to completely expend the

Plaintiff’s Eight Hundred and Thirty Thousand Naira (N830,

000.00) transferred to the Account. Although the Account

29

Statement did not specify the times of these withdrawals, it can be

deducted that these transactions took a certain amount of time, all

before 8:19am on the 23rd of August 2013. The 2nd Defendant had

alleged that by the time they were alerted by the 1st Defendant,

the funds had already been depleted from the Account.

The Plaintiff alleged that the Culprit’s Account is a Student

Account, and as such, needed the Branch Manager’s authorization

to withdraw more than One Hundred and Fifty Thousand Naira

(N150, 000.00) from the account. However, he proffered no

evidence to substantiate this fact as it is clear from Exhibit F that

the Account type is stated as ‘Classic Savings’. He offered no

explanation as to how a Classic Savings Account is equated to a

Student Account, and he did not proffer any evidence to show that

when or if the Culprit made a withdrawal from the Banking Hall,

the Bank Manager failed to stop the transaction.

However, the Plaintiff has furnished this Court with

overwhelming evidence that the Culprit after expending the

Plaintiff’s funds received funds into his account, exceeding the

amount fraudulently transferred from the Plaintiff that would

have sufficiently righted the wrong done the Plaintiff.

From the same Exhibit F, it can be seen that the Culprit, Oforah

Ebere Felix was credited with the sum Six Hundred Thousand

Naira on the 23rd of August 2013, the same date the incident

occurred. Subsequently, on the 28th of August 2013 the Culprit’s

account was again credited with the sum of One Hundred and

Forty Thousand Naira (N140, 000.00) and One Hundred and

Forty-Nine Thousand Naira (N149, 000.00) respectively. This

brought the Account balance to Eight Hundred and Eighty-Nine

Thousand, Four Hundred Naira (N889, 400.00).

30

The Plaintiff contended that though the 2nd Defendant placed an

alert on the Account, the sum of Six Hundred Thousand Naira

(N600, 000.00) was debited from the account on the 12th of

November 2013. This debit was permitted 12 days after the 2nd

Defendant was in receipt of the Police Investigation Report on the

29th of October 2013.

The Plaintiff asserted that despite his efforts to recover his funds

from the Culprit’s account, the 2nd Defendant refused to do a

reversion except the Plaintiff tells the Culprit to fill out a transfer

slip, instructing them to transfer that amount back to the Plaintiff,

or the Plaintiff obtains a Court Order for them to do so.

The 2nd Defendant in response did not deny receiving the Police

Report on the 29th of October 2013, or the withdrawal of the

funds they allowed on the 12th of November 2013. They validated

their actions that the Police Report did not amount to a Court

Order, and since they are also not their Regulatory Body they can

not comply with the Police Recommendations. They had

contended further that the funds the Police advised them to

refund was in a Customer’s account, and without their Customer’s

instruction, they would not be able to do a reversal.

As rightly stated by the 2nd Defendant, they could not carry out

any action on the Culprits Account with his approval. However,

they are a Corporate Body who owe the average citizenry the duty

to apply ‘reasonable’ care in the circumstance. Even though the

2nd Defendant do not have the power to reverse the funds from

the Account, they have the power to deny the Culprit access to his

funds upon suspicion of a crime.

The 2nd Defendant did not only have the suspicion of a crime

being committed, they were responsible for the Culprit’s arrest,

and subsequence confession. They informed the 1st Defendant of

31

the Culprits success in his heist, and knew also that there would

be a need for restitution of the Plaintiff’s funds from him. They

were above all aware of the Police Report in the matter.

The 2nd Defendant ought to have acted reasonably, but rather in

their evidence, when responding to the Six Hundred Thousand

Naira (N600, 000.00) debit, they claimed it was transferred back

to the 1st Defendant, for a different transaction. This response is

grossly unsatisfactory and cannot justify their actions in allowing

debit transactions on that account. Though the Plaintiff’s funds

had been depleted from the Account, which Exhibit F verifies as

true, the fact that the same Account became again credited with

funds, which could satisfy a reversal/refund of the funds

fraudulently withdrawn, the 2nd Defendant ought to have acted

with reasonable care to ensure that a reversal would be a

possibility. As seen from Exhibit F, the withdrawal of Six Hundred

Thousand Naira (N600, 000.00) on the 12th of November 2013

brought the Account Balance to Two Hundred and Ninety-One

Thousand Naira (N291, 6000.06). Thereby making it

impracticable for the Plaintiff to recover all his funds from the

Culprit.

Also, the 1st Defendant whilst under Cross-Examination stated

that had the 1st Defendant been in the 2nd Defendant’s position

they as a Bank would exercise reasonable care to prevent the

fraudster from having access to his bank account.

It is clear that in a claim for damages for negligence, the Plaintiff is

expected to plead and prove that the 2nd Defendant owed him a

duty to exercise due care; that they failed to exercise due care or

had breached the duty of care; that finally that he suffered injury

caused by their failure to act. Reference is made to the cases of

OLAM (NIGERIA) LTD VS INTERCONTINENTAL BANK LTD

(2009) LPELR 8275 (CA); KOYA VS UBA LTD (1997) 1 NWLR

32

(PT. 481) 41; OSIGWE VS UNIPETROL LTD (2005) 5 NWLR

(PT. 918) 261 MTN VS MUNDRA VENTURES (NIG) LTD (2016)

LPELR-40343 (CA) PER GEORGEWILL, J.C.A. (PP. 36-37,

PARAS. D-A); LINTON INDUSTRIAL TRADING COMPANY

NIGERIA LTD VS CBN & ANOR (2013) LPELR-22036(CA),

AGBONMAGBE BANK LTD VS CFAO (1966) 1 SCNLR 367 and

SGBN LTD VS ELEGANZA INDUSTRIES LTD (2004) 8 NWLR

(PT 875) 432.(Pp. 18-19, Para. F-A)

From the above analysis, this Court finds that the 2nd Defendant

was grossly negligent having failed in the duty of care it primarily

owed its customer and to the general public at large and is liable

for negligence.

As regards the 3rd issue on the Reliefs sought for, it is trite law

that General damages are damages the law implies in every

breach and in every violation of a legal right. It is the loss that

flows naturally from the actions of the adverse party and its

quantum need not be pleaded or proved as it is generally

presumed by law. The manner in which general damages is

quantified is by relying on what would be the opinion and

judgment of a reasonable person in the circumstances of the case.

See the case of NDINWA VS IGBINEDION (2001) 5 NWLR (PT

705) 140 AT 150; OSUJI VS ISIOCHA (1989) 3 NWLR (PT 111)

633; ODULAJA VS HADDAD (1973) 11 SC 357; OMONUWA VS

WAHABI (1976) 4 SC 37; LAR VS STIRBUG ASTALDI LTD

(1977) 11 - 12 SC; ACME BUILDERS LTD VS KADUNA STATE

WATER BOARD (1999) 2 NWLR (PT 590) 288; SEVEN-UP

BOTTLING COMPANY PLC VS NKANGA & ORS. (2008) LPELR-

8462(CA) PER OMOKRI, J.C.A. (P.28 PARAS E-A)

According to him, the assessment of damages is the amount

necessary to put the party wronged and aggrieved in the position

33

he would have been had there been no breach. The essence of

damages in breach of contract cases is based on restitution in

integrum that is to restore the Plaintiff to a position as if the

contract has been performed and cited the cases of U.B.A. VS BTL

(2006) 28 NSCQR 381 @ 418; AFRICAN PETROLEUM PLC VS

SOYEMI (2008) ALL FWLR (PART 397) 117 @ 129

PARAGRAPHS F – G; LAGOS CITY COUNCIL CARETAKER

COMMITTEE & 2 ORS VS BENJAMIN O UNACHUKWU & ANOR

(1978) LPELR – SC 212/1976.

In this case, this Court is satisfied that the loss suffered was

preventable and was compounded by the failure of the 2nd

Defendant to take reasonable actions. The Plaintiff has been

deprived of the use of his funds since the year 2013 and is

accordingly entitled to the damages claimed.

As regards the 1st Claim seeking the direction of the Court to

revert the sum of N830, 000 back into the Plaintiff’s Account, it is

clear that the Court cannot make an Order in vain. The Current

Balance as stated in Exhibit F as at the date of print on the 10th of

June 2016 is the sum of N315, 871.30 standing to the credit of

Oforah Ebere Felix and this sum is ordered to be returned into the

Plaintiff’s Account with First Bank Account 3017633650

forthwith.

The Court will order the 2nd Defendant to pay damages in the

sum of Five (5) Million Naira Only to the Plaintiff for damages as a

result of their negligence and failure to take decisive steps in aid

of the Plaintiff by reversing the Plaintiff’s money in the sum of

N830, 000. 00 (Eight Hundred and Thirty Thousand Naira).

As to the issue of Interests, it is clear that interest may be claimed

as of right where it is contemplated by the agreement between

the parties or is under a mercantile custom, or under a principle

34

of equity such as a breach of fiduciary relationship. Where

interest is being claimed as a matter of right, the proper practice

is to claim entitlement to it on the Writ and lead facts which show

such an entitlement in the statement of claim. The facts need to be

pleaded in the statement of claim and evidence led on those facts

which show entitlement thereto, and the Court may, if satisfied,

award interest. Reference is made to the case of DANIEL

HOLDINGS LTD VS UBA PLC (2005) 13 NWLR PT 943, AT 533

SC; BALOGUN VS E.O.C.B. (NIG) LTD (2007) 5 NWLR PT 1028

AT 548 CA

OGUNTADE JSC IN THE CASE OF SANNI ABACHA FOUNDATION

FOR PEACE AND UNITY & ORS VS UBA PLC (2010) NWLR PT

1221 AT 19where it was held that the evidence adduced at the

trial, should establish the proper rate of interest and the date

from which it should begin to run-whether from the accrual of the

cause of action or otherwise. See also the case of R.C.C. (NIG) VS

R.P.C. LTD (2005) 10 NWLR PT 934 AT 615.

On the Prayer regarding Interest on the Judgment sum at the rate

of 10% per annum from the date of Judgment until final

liquidation of the Judgment Debt, it is clear that interest on a

judgment debt is interest after adjudication. See WAYNE W/A VS

EKWURIFE (1989) 12 SCNJ 99 @ 118 - 119. Moreover, this is

allowed under Order 39 Rule 7 Rules of this Court and the Court

therefore awards 10% interest on the judgment sum from the

date of the judgment until the final liquidation of the debt.

In conclusion, Judgment is entered in favour of the Plaintiff.

35

HON. JUSTICE A.A.I. BANJOKO

JUDGE