⦿ CASE SUMMARY OF:
Chief Joseph Oluwole Odulate v. First Bank Nigeria Limited (2019) – CA
by PipAr Chima
Court of Appeal – CA/L/1450/2016
⦿ JUDGEMENT DELIVERED ON:
29th day of March, 2019.
⦿ AREA(S) OF LAW
Breach of contract;
Customer – banker relationship;
⦿ NOTABLE DICTA
* WHAT IS A PRELIMINARY OBJECTION?
A Preliminary Objection as a matter of law is a process or procedure via which a party to an action may truncate the proceedings therein on account of a fundamental defect in the way the matter is constituted, which renders the taking of further action in the proceedings a meaningless waste of time and effort. – Tukur JCA. Odulate v. FBN (2019)
* COURT TO DETERMINE CASE BASED ON THE PLEADINGS
There is no gainsaying the settled principle of law to the effect that the Court is bound to determine the case before it, as made out by the pleadings of the parties, particularly the Claimant’s or Plaintiff’s cause of action. – Tukur JCA. Odulate v. FBN (2019)
* PLEADINGS TELL WHAT A PARTY IS SEEKING
There is also no doubt that in order to determine what the cause or reason for which the party seeking relief has come to the Court, regard must be had to that party’s pleadings, particularly the statement of claim. It is from there that the Court will be properly guided as to what set of facts the party is presenting as grounding his claim, the applicable principles of law and the legal remedy the party is seeking. – Tukur JCA. Odulate v. FBN (2019)
* WHAT IS BREACH OF CONTRACT?
Breach of contract arises in a situation wherein a party to an agreement, fails to perform his own obligations, thereby causing damages to the other party or parties to the agreement, who have taken certain steps on the basis of the agreement. In order to prove breach of contract, the party asserting must clearly show what actions or omissions the defaulting party is guilty of that constitutes the breach. – Tukur JCA. Odulate v. FBN (2019)
* WHEN DOES NEGLIGENCE ARISE
Negligence is the tort that protects a person from careless action from another, that can injure or harm him. The law places a duty of care on various persons in various circumstances, where such a person breaches the duty of care placed upon him by law and that breach resulted in injury to the person to whom such duty is owed, the bearer of the duty is said to have been negligent and will be liable in damages to repair the injury caused. – Tukur JCA. Odulate v. FBN (2019)
Chief Joseph Oluwole Odulate
First Bank Nigeria Limited
⦿ LEAD JUDGEMENT DELIVERED BY:
Jamilu Yammama Tukur, J.C.A
* FOR THE APPELLANT
– Kenneth Kelle Esq.
* FOR THE RESPONDENT
– Anozie Douglas Benson Esq.
⦿ CASE HISTORY
This is an appeal against the judgment of the High Court of Lagos State in Suit No: LD/1697/2010 delivered on 8th April, 2016, by Honourable Justice D.T Okuwobi (Mrs) in favour of the Respondent.
The material facts leading to this appeal, are that the Appellant acting on the belief that the Respondent had failed in its duty as Banker to the Appellant, particularly with regards to unauthorized withdrawals from the Appellant’s account, instituted an action before the lower Court via a Writ of Summons dated 23rd August, 2010, seeking the following reliefs:
a.The sum of N4,370,630 (Four Million, Three Hundred and Seventy Thousand, Six Hundred and Thirty Naira) being money had and received by the Defendant from the Claimant as deposit;
b. The sum of N3 million being special damage;
c. The sum of N2 million being exemplary damage;
d. The sum of N10 million being general damage.
Other requisite processes were exchanged and the matter went through a full trial. In a considered judgment dated 8th April, 2016, the learned trial Judge found that the 1st Claimant failed to prove his case and consequently dismissed same. Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 8th November, 2016, with 6 grounds of appeal.
⦿ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: DISMISSED]
Learned counsel for the Respondent argued that contrary to the Appellant’s submission, the case made out by the Appellant at trial, was based on negligence and not breach of contract. He submitted that Appellant’s arguments on breach of contract at this stage amounts to raising a fresh issue on appeal and ought to be discountenanced by this Court.
RULING: IN APPELLANT’S FAVOUR.
I. The practical implication of the above, with regards to appeals before this Court is that where a process professes to be by way of a preliminary objection, such should be capable of terminating the appeal, and should not be an attack on a single ground or only some few grounds of appeal. The consequence of the above principle of law to the facts of this appeal, is that the putative preliminary objection argued in the Respondent’s Brief, has no leg upon which to stand, seeing as it is clearly an attack on only ground 1 of the Appellant’s Notice of Appeal. The Preliminary Objection is therefore dismissed.
I. WHETHER THE CLAIM OF THE APPELLANT FOR N4,370,630.00 WAS FOR BREACH OF CONTRACT OR FOR NEGLIGENCE OF THE RESPONDENT?
RULING: RESOLVED AGAINST THE APPELLANT.
I.A. The pertinent question at this juncture therefore, is whether the case of the Appellant was contract and not negligence. A careful look at the facts of this appeal, especially the relevant processes as borne by the records reveal that the case of the Appellant at trial, was that of negligence. The cause of action was negligent handling of account which led to illegal deductions. I refer to paragraphs 7 – 21 of the Statement of Claim found at pages 4 – 5 of the Record of Appeal wherein the Appellant in very clear terms pleaded facts which presents the tort of negligence as the fulcrum of his case in the lower Court.
I.B. Damages are not awarded as a matter of course, especially as it pertains to special damages. The party seeking such after establishing the breach, must show how the breach caused injury that is requiring damages. For special damages, the party must itemise every particular expense that requires damages.
II. ASSUMING THERE WAS ONUS TO PROVE NEGLIGENCE (WITHOUT CONCEDING) ON THE APPELLANT, WHETHER THERE WAS NOT ENOUGH EVIDENCE TO HOLD THE RESPONDENT LIABLE IN NEGLIGENCE.
RULING: RESOLVED AGAINST THE APPELLANT.
II.A. The fact that the duty generally exists however does not mean that it was breached in this instance. The online banking platform which the Appellant is alleging to be the means by which unauthorised withdrawals were made, is not under the sole control of the bank. As a matter of fact, as established at trial, it is the Appellant who has the password that can access his account through the online platform. It therefore behoves on the Appellant to clearly show how the Bank was negligently responsible for the withdrawal of certain sums from his account through the said online platform. The Appellant failed to do this.
II.B. With regards to the issue of whether the sum of N4,370,630.00 was proved, the first port of call is what was the reason why the trial Court find that it wasn’t proved? The answer is found at page 178 of the records, and revolves around the fact that the attempt of the Appellant to prove his assertion amounted to nothing more than mere speculation. The holding of the learned trial Judge is in my view unimpeachable. The learned trial Judge is not positing that the Bank Statement is the only means of proving Appellant’s assertion, neither did he place a higher standard of proof on the Appellant, rather the holding of the Judge is in line with settled principle of law, as he was not satisfied with the proof proffered by the Appellant and simply mentioned a piece of evidence capable of clearing any doubt and which the Appellant for no just cause withheld. Section 167(d) of the Evidence Act indeed provides for instances where a party withholding evidence in a case would be presumed to hold such evidence because if it is brought to light, the evidence would operate against the interest of the person withholding it.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
* WHEN TO USE A PRELIMINARY OBJECTION OR A MOTION ON NOTICE
In BANK OF INDUSTRY LTD v. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR-43812(SC), page 7 para. B-D, per Rhodes-Vivour JSC, reiterated the above principle of law thus: “This Preliminary Objection is against the hearing of this suit. In Isah v. INEC & 3 Ors (2014) 1-2 SC (Pt.iv) p.101. I explained Preliminary Objections and when to file them and when not to file them. I said that: “A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice.
* DEFINITION OF CAUSE OF ACTION
The Supreme Court in the case of A.G. OF ADAMAWA STATE & ORS v. A.G. OF THE FEDERATION (2014) LPELR-23221(SC) (P. 28, paras. C-F) Per PETER-ODILI, J.S.C, defined cause of action thus: ”The definition that has been followed on cause of action is that cause of action is the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. Thus, when an action is said to be statute-barred, what it connotes is that the plaintiffs may have an actionable cause of action, but their recourse to judicial remedy is voided. No proceedings could be brought to prosecute the action. Muhammed v Military Administration, Plateau State (2001) 16 NWLR (Pt.740) 510 at 544 – 545; Egbe v Adefarasin (1985) 1 NWLR (Pt. 3) 1; Yusuf v C.C.B. Ltd (1994) 7 NWLR (Pt.359) 676.”
* DETERMINE A CAUSE OF ACTION
OPIA v. INEC & ANOR (2014) LPELR-22185(SC) (P. 20, paras. D-F) Per GALADIMA, J.S.C, held thus: ”A cause of action is determined by reference to the plaintiff’s statement of claim. The immediate materials a Court should look at are the Writ of Summons and averments in the statement of claim.”
* SUCCEEDING IN BREACH OF CONTRACT
In BEST NIGERIA LTD. v. BLACKWOOD HODGE NIGERIA LTD. (2011) LPELR-776(SC) (P.42, Paras.D-E) Per Adekeye, J.S.C. thus: “For a claimant to succeed in an action for breach of contract, he must establish not only that there was a breach but also that there was in existence an enforceable contract which was breached.”
* WHAT IS NEGLIGENCE?
The Supreme Court in the case of HAMZA V. KURE (2010) LPELR-1351(SC) (P. 14, paras. E-G) Per Mohammad J.S.C., defined negligence thus: “As far back as 1856, Lord Alderson B., defined negligence to be the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. See: BLYTH V. BIRMINGHAM WATERWORKS COMPANY.  11 Exch. 781 at 784. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.”
⦿ REFERENCED (OTHERS)