GUARANTY TRUST BANK PLC V. MR ADEWALE OLUTAYO FAYEMIWO
Areas Of Law:
APPEAL, COURT, EVIDENCE, PRACTICE & PROCEDURE, WORDS & PHRASES
Summary Of Facts:
The Respondent, a legal practitioner, operates an account with the Appellant – a financial banking institution.
On 14th July, 2012, he secured an online banking details from the Appellant for the operation of the account, the next, he tried to activate the online banking platform, using the Appellant’s website and pass code, but it did not go through.
He visited the Appellant’s branch, at Catholic Mission Street, Lagos, where the pass code was properly identified and he was directed to use customers’ computer.
He could proceed with the activation as he left the token at home, hence he decided to complete the process later.
On 19th July, 2012, whilst in his vacation in United States of America (USA), he tried to complete the activation, using the Appellant’s website, but could not proceed because an online message came up that the Appellant will phone him to conclude it.
On 24th July, 2012, he received text messages of 35 unauthorized withdrawals of N50,000 each totaling N1,750,000.00.
He contacted the Appellant, via phone calls, and he was assured that the case was being investigated by its E-Fraud Unit.
There were exchange of correspondence between the parties in the Respondent’s efforts to recover the money.
The Respondent lodged a complaint of the incident to the Nigeria Police Force, but their investigation did not yield the deserved result.
The Respondent alleged that the appellant either solely or with others fraudulently and/or negligently caused the withdrawal of the sum of N1,750,000.00, cause despite his demand letters, nothing was done to assuage the damages he suffered by the withdrawal of that sum of money.
Sequel to that, the Respondent instituted this action at the High Court of Lagos, via a writ of summons wherein he sought for an Order for the refund of the sum of N1.75 million being amount illegally withdrawn from his account; the sum of N10 million as aggravated damages; and cost of litigation.
At the end of the trial, the trial Court granted the Respondent’s claims.
Dissatisfied with the trial Court’s judgment, the Appellant has appealed against same via a Notice of Appeal containing six Grounds of Appeal.
ISSUES FOR DETERMINATION
- Whether or not the Trial Judge misdirected himself in law and on the facts when he held the Appellant liable in negligence on the basis that she did not monitor the Respondent’s Account without first finding that such a duty is owed to the Respondent in view of the Appellant’s contention that she did not owe him such a duty as at the time the 35 withdrawals in issue took place.
- Whether or not the Trial Judge misdirected himself on the law and on the facts when she held the Defendant/Appellant liable in negligence without the Claimant/Respondent proving every one of the averments.
- Whether or not the Trial Judge misdirected himself in law and on the fact when in this civil matter where fraud is alleged, he found that the Standard Of Proof is by preponderance of evidence and on that premise in reliance on an Interim Police Report & on an alleged admission by the Appellant’s Lone Witness, found the Appellant liable in fraud as alleged by the Respondent.
- Whether or not the Trial Judge misdirect herself on the facts and on the law when he restricts, the inquiry as to whether or not the Respondent is a forgetful person, to the instance the latter was forced to admit painfully that he forgot the token at home and ignore the other instances where the Respondent admits by his own pleadings, evidence in chief and under cross-examination, that he did other acts and omission which clearly suggests he is a forgetful person.
COURT – CIRCUMSTANCES WHEN IT CAN SAID THAT THE A COURT’S JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE
A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial court cannot be supported by the weight of evidence advanced by the successful party which the court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law.
Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial court.
In ascertaining the weight of evidence, the trial court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v.Adyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412. –PER O F. OGBUINYA, J.C.A
EVIDENCE – WHAT THE EVALUATION OF EVIDENCE CONNOTES
To begin with, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a court, and ascription of probative value to them which results in finding of fact.
This primary evidentiary duty falls squarely within the exclusive preserve of a trial court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate court, to watch the witnesses, form impression on their demeanour and assess the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate court is disrobed of the vires to interfere with a finding of a trial court anchored an demeanour and credibility of witnesses, see Adebanjo v.State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt.1695) 289. –PER O F. OGBUINYA, J.C.A
COURT – MEANING AND ATTRIBUTES/INGREDIENTS OF NEGLIGENCE
Negligence, in law, connotes an omission or failure to do something which a reasonable man, under the same circumstance, would do or doing of something which a reasonable and prudent man would not do, see Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; Abubakar v. Joseph (2008) 13 NWLR Pt. 1104) 307; Diamond Bank Ltd. v. P.I.C Ltd. (2009) 18 NWLR (Pt. 1172) 67; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Okwejiminor v. Gbakeji(2008) 5 NWLR (Pt. 1079) 172; Hamza v. Kure (2010) 10 NWLR (Pt. 1203) 630.
Negligence is a question of fact, not law, so that each case has to be decided on its peculiar facts, see S.B.N. v. Motor Parts Installation Ltd. (2005) All FWLR (Pt. 260) 103; African Petroleum v. Soyemi (2008) All FWLR (Pt. 397) 117; F.A.A.N. v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249); Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Royal Ade (Nig) Ltd. v. N.O.C.M. Co Ltd. (supra); A.B.C. Transport Co. Ltd. v. Omotoye(2019) 14 NWLR (Pt. 1692) 1971.
In Donoghue v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords evolved three ingredients of negligence, which a plaintiff must establish, thus: that the defendant owed him a duty of care, that there was a breach of the duty and that the breach caused him injury or damage.
These three ingredients have since been accepted and assimilated in the Nigerian jurisprudence, see Agbomagbe Bank Ltd. v. CFAO (1967) NWLR 173; FBN Plc. v. Associated Motors Co. Ltd, (1998) 10 NWLR (Pt. 570) 441; Abubakar v. Joseph (supra); Iyere v. B.F.M. Ltd. (2008) 18 NWLR (Pt. 1119) 300; Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra); Royal Ade (Nig.) Ltd. v. N.O.C.M. Co Plc (supra); Makwe v. Nwukor (supra); Abusomwan v. Mercantile Bank Ltd. (supra); A.B.C. Transport Co. Ltd. v. Omotoye (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253.
On the first ingredient, duty of care, the evidence, documentary and prolix viva voce, from both warring parties unequivocally indicate that the respondent was a current account customer of the appellant. In view of that contractual banker – customer relationship, which existed between them, it is axiomatic that the appellant owed duty of care to the appellant.
A duty of care can be imposed by law or created by contract or trust, see IMNL v. Nwachukwu (2004) 13 NWLR (Pt. 891) 543. In law, it behoves the appellant, a banker, to exercise reasonable care and skill in executing the respondent’s, a customer’s, instructions in his banking business. It has a duty to protect the interest and money of the appellant, see Agbanelo v. UBN Ltd. (2000) 4 SCNJ 353/(2000) 7 NWLR (Pt. 666) 534; Diamond Bank Ltd. v. PJ.C. Ltd. (supra); Skymit Motors Ltd. v. UBA Plc. (2021) 5 NWLR (Pt. 1768) 123.
The rationale behind the duty is not far-fetched. The appellant, amply, falls within the ambit of neighbour, “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question,” as propounded by Lord Atkin in the remarkable case of Donoghue v. Stevenson (supra). In sum, I hold that the appellant established the presence of duty of care to him –PER O F. OGBUINYA, J.C.A
ADMISSION – MEANING OF ADMISSION AND IT’S EFFECT Incontestably, in the sight of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588.
It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jaraaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola(2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421.
It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orlanezi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247.
Indubitably, in the eyes of the law, admission binds the party that makes the concession, id est, the appellant in this case. –PER O F. OGBUINYA, J.C.A
BANKING – DUTIES OF A BANK TO ITS CUSTOMERS AND EFFECT OF FAILURE IN ITS DUTY OF CARE
Incontestably, the appellant is a frontline financial banking institution within the firmament of the Nigerian economy. The relationship inter parties was/is a banker-customer relationship. It is a contractual relationship that is similitude of a contract uberimae fidei that demands unconditional honesty and vigilance from a bank.
A bank customer reposes expansive confidence in the bank vis-à-vishis interesse (monetary interest) and its security at all times. Such confidence is lost when a bank allows unauthorised withdrawals from a customer’s account. That will constitute coup de grace to the existence of the pecuniary relationship.
A bank usually portrays and projects itself as professionally competent and dexterious in safeguarding a customer’s funds. Where it shirks from that responsibility, it constitutes a prima facie act of negligence on the footing of failure of its primary duty of care. –PER O F. OGBUINYA, J.C.A
WORDS AND PHRASES – MEANING OF FRAUD AND THE STANDARD OF PROOF:
Fraud, a leprous term, is amphibious in application as it “covers commission of crime as well as incidents of mere impropriety”, see Okoli v. Moreeab Finance (Nig) Ltd (2007) 14 NWLR (Pt. 1053) 37 at 72, per Ogbuagu, JSC.
It connotes a willful act on the part of someone, whether words or conduct whereby another person is sought to be deprived, by illegal or inequitable means, of his entitlement, see Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Egbo v. Nwali (1998) 6 NWLR (Pt. 553) 195; Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392; Otukpo v. John (2012) 7 NWLR (Pt. 1299) 357; ACN v. INEC (2013) 13 NWLR (Pt. 1370) 161; Trade Bank Plc v. Pharmatek Ind. P. Ltd. (2020) 8 NWLR (Pt. 1725) 124.
The law insists that a party who invites and relies on fraud in a case must plead and prove it by evidence beyond reasonable doubt, see Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) 37; Belgore v. Ahmed (supra); Obitude v. Onyesom Comm. Bank Ltd. (2014) 9 NWLR (Pt. 1412) 352; Yakubu v. Jauroyel (2014) 11 NWLR (Pt. 1418) 205; Malami v. Ohikhuare (2019) 7 NWLR (Pt. 1670) 132. –PER O F. OGBUINYA, J.C.A
STANDARD OF PROOF – DISTINCTION BETWEEN PROOF BEYOND REASONABLE DOUBT AND PROOF BEYOND ANY SHADOW OF DOUBT
Let me place on record, perforce, that proof beyond reasonable doubt is divorced from proof beyond any iota/shadow of doubt. It is attained when the evidence, on the ingredients of the offence, is so strong against a man as to leave only a remote possibility on his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. –PER O F. OGBUINYA, J.C.A
COURT JUDGMENT – ONLY MATERIAL ERROR IN A JUDGMENT CAN VITIATES IT
It is an elementary law that not every error or mistake in a judgment that vitiates it. It must be material and has to occasion a miscarriage of justice, see Diamond Bank Ltd. v. P.I.C. Ltd. (2019 18 NWLR (Pt. 1172) 67; Ontario Oil Gas Ltd v. FRN (2018) 13 NWLR (Pt. 1636) 197; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534; Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330.
This inflexible hallowed principle of law owes its ancestry to the Latin maxim:Diminimis non curat lex-. the law does not concern itself with trifles, see Garba v. FCSC (1988) 1 NWLR (Pt. 71) 449. –PER O F. OGBUINYA, J.C.A
EVIDENCE – NATURE OF EVIDENCE IN A COURT PROCEEDING A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J.Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikeazu(2017) 15 NWLR (Pt. 1589) 345.
In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme(2013) 13 NWLR (Pt. 1372) 474.
The lower court found, rightly in my view, that the evidence of the respondent, based on their qualitative nature, preponderated over those of the appellant’s.
The net effect is that the respondent proved its case. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the court, see section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili(2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399.(Pt. 1372) 474; APC v. Karfi(2018) 6 NWLR (Pt. 1616) 479; Ojobo v Moro (2019) 17 NWLR (Pt. 1700) 166. –PER O F. OGBUINYA, J.C.A
Statutes Referred To:
Evidence Act, 2011
High Court of Lagos State (Civil Procedure) Rules, 2012 (High Court Rules)