➥ CASE SUMMARY OF:
DIAMOND BANK LIMITED v. MOCOK ONU NIGERIA LIMITED (2019) – CA
by PipAr Chima
Court of Appeal – CA/C/285/2017
➥ JUDGEMENT DELIVERED ON:
Friday, the 1st day of February, 2019
➥ AREA(S) OF LAW
Banker – customer relationship;
➥ NOTABLE DICTA
⦿ NATURE OF A CAUSE OF ACTION
A cause of action is that action which connotes every fact which is material to be proved before a competent Court of law to entitle the plaintiff to succeed or all those things necessary to give a right to relief in law or equity. Thus, it is the factual base or some factual situation, a continuation of which makes the matter in litigation an enforceable or an actionable wrong. Consequently, before a party files a matter in Court, he must possess a cause of action against some person(s) or institution(s). In other words, a plaintiff/claimant must show by his pleadings that he has a cause of action maintaining in a Court of law against the defendant. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ DETERMINING THE EXISTENCE OR NONEXISTENCE OF A CAUSE OF ACTION
In determining the existence or non-existence of a cause of action in a suit, the Court is to consider the Writ of Summons and the statement of claim. And what distinguishes a claim which discloses cause of action from the one that does not is that where a statement of claim discloses some reasonable cause of action on the facts alleged in it, it is where the claim has some chances of success and once it raises some issues of law or fact calling for determination by the Court. Put differently, it is irrelevant to consider the weakness of the plaintiff’s claim but whether it raise some questions fit to be decided by a Court. And for a statement of claim to be said to disclose no cause of action it must be such as nobody can understand what claim he is required to meet. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ BANKER – CUSTOMER RELATIONSHIP IS THAT OF A CONTRACT
By the combined effect of the said averments, the respondent maintained a current account with the appellant, a registered commercial bank. The nature of such relationship has been given recognition in plethora of judicial decisions that it involves a specie of contract with special usages with particular reference to monetary or commercial transactions. Consequently, a banker has a duty under its contract with its customer to exercise reasonable care and skills in carrying out its part with regards to transactions in its contract with its customers. The Banker’s duty to exercise reasonable care and skills stretches over the whole range of banking business within the ambit of the contract with the customer. This duty applies to interpreting, ascertaining and acting in accordance with the instruction of the customer. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ BURDEN OF PROOF LIES ON THE PLAINTIFF
The general rule in civil cases is that the burden of proof rests upon the party who substantially assert the affirmative before the evidence is gone into. Therefore, the burden of proof lies on the person who will fail assuming no evidence had been adduced on either side…Where the plaintiff as in this case, pleads and relies on negligence by conduct or action of the defendant, the plaintiff must prove by evidence the conduct or action and the circumstances of its occurrence, which give rise to the breach of the duty of care owed the plaintiff. And that it is only after this, that the burden shifts to the defendant to adduce evidence to challenge negligence on his part. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ TORT OF NEGLIGENCE AND THE ISSUE OF DAMAGES
The tort of negligence is a civil wrong consisting of breach of a legal duty to care which results in damage. Thus, three things must be proved before the liability to pay damages for tort of negligence and these are:- (a) That the defendant owned the plaintiff a duty to exercise due care. (b) That the defendant failed to exercise due care, and (c) That the defendant’s failure was the cause of the injury in the proper sense of that term. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ THE APPROACH TO A CLAIM IN NEGLIGENCE
The approach to a claim in negligence comes into operation in the following circumstances: (a) On proof of the happening of an unexplained occurrence; (b) When the occurrence is one which would not have happened in the ordinary course of things without the negligence on the part of somebody other than the plaintiff and (c) The circumstances point to the negligence in question being that of the defendant rather than that of any other person. – Shuaibu JCA. Diamond Bank v. Mocok (2019)
⦿ NEGLIGENCE IS A QUESTION OF FACT NOT OF LAW
It is settled that negligence is a question of fact and not of law. So, each case must be decided in the light of facts pleaded and proved. No one case, is exactly like another. – NIMPAR, J.C.A. Diamond Bank v. Mocok (2019)
⦿ FAILURE TO PLEAD RELEVANT FACTS DEFEATS THE CLAIM
Pleadings just like other civil claims is a prerequisite to the establishment of a claim and in this case negligence. Failure to plead relevant facts would automatically defeat the claim. The Respondent failed to do the needful and therefore did not merit to have judgment, I therefore agree with my brother that the appeal is meritorious and succeeds. – Nimpar JCA. Diamond Bank v. Mocok (2019)
Diamond Bank Limited
Mocok Onu Nigeria Limited
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Attah Ochinke, Esq.
⦿ FOR THE RESPONDENT
Chief Okey Obikeze.
➥ CASE HISTORY
By Writ of Summons and statement of claim filed on 22/6/2016, the plaintiff now respondent claimed against the appellant herein as follows: – (a) N500 million on the footing of compensatory and exemplary damages for the defendant?s negligence by failing to transfer funds from the plaintiff?s account to Mathew Egbeji. Upon being served with the originating processes, the defendant denied that it was negligent in carrying out the request of the claimant and therefore not liable. After exchange of pleadings the matter proceeded to trial with parties leading evidence and tendering documentary exhibits. At the end of the trial, the Court below entered judgment against the defendant in the sum of N3,000,000.00 as compensation and exemplary damages for negligence.
Dissatisfied with the judgment, the defendant now appellant filed this appeal.
➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED, IN PART]
1. Whether the learned trial judge was right when he held that the respondent disclosed a reasonable cause of action against the appellant and that the appellant breached a duty of care to the respondent.
I have stated that once a claim raises some issues of law or facts calling for determination, same cannot be struck out because it discloses some reasonable cause of action and that it is not a relevant factor to consider the strength or weakness of the claim. From the above reproduced averments of the respondent’s pleadings, the respondent was challenging the way and manner the appellant handled his request for fund transfer to one Buturo Mathew Egbeji. This alone in my humble and respectful view, constitute a cause for which a full trial must be conducted. I therefore cannot but agree with the learned trial judge when he held that there was a reasonable cause of action against the appellant.
2. Whether the finding of the learned trial judge that the negligence in this case is not the failure of the transaction per se, but the failure of the transaction and the non-recrediting of the claimant’s account on time and also not informing of the failed transfer is not self-contradictory.
In the instant case, respondent did not plead or lead evidence to show the appellant failure to exercise due care or that it was the appellant’s failure that cause the alleged loss or injury.
The question here is will the failure on the part of the Nigerian Inter-Settlement Banking Switch of Nigeria which is solely responsible for interbank transfer be attributable to the appellant? This question must be answer in the negative because the duty owed to the respondent by the appellant was instantly carried out on the receipt of debit alert by the respondent on the same day the transfer was made i.e. 6/3/2015. I am therefore, not persuaded by the respondent?s submission that the appellant was merely pushing the blame on the door step of the third party. Here again the respondent must establish a nexus direct between the economic loss he suffered as a result of the failure to transfer fund and the negligence of the appellant without a third party intervening. These are all matters of evidence and regrettably there was none in this case.
The learned trial judge unfortunately did not go further to state whether at the time the failure to transfer fund happened, it was with full knowledge of the appellant or that it negligently caused the failure. There must be direct evidence to show all these things. The trial Court has failed to properly appraise the evidence with regard to the alleged negligence of the appellant. Therefore, I resolved issue two in favour of the appellant.
3. Whether the learned trial judge was right to have awarded against the appellant the sum of N3,000,000.00 (Three Million Naira) as compensation and exemplary damages for the defendant’s negligence.
I have held that the finding of the trial Court is not supported by evidence. In other words, there was no evidence that the appellant was negligent or in breach of its duty of care to the respondent. Where negligence against the appellant was not established, the question of damages resulting therefrom does not arise at all. See U.T.B. (NIG) v. OZOEMENA (Supra).
Further, the respondent’s cross-appeal filed was struck out for having not been distilled from any grounds of appeal.
➥ ENDING NOTE BY LEAD JUSTICE – Per
➥ REFERENCED (STATUTE)
Section 133 (i) of the Evidence Act, 2011.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)