First Bank Of Nigeria Plc & Ors v. Salisu Usman (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

This action is a progeny of the banker customer relationship between the 1st appellant and the respondent.

In precis, the apercu which led to the action is that the 1st appellant allegedly breached the duty of care it owed the respondent in respect of his bank account with it, consequent upon which there were unauthorised withdrawals from his account in the total sum of N474,000.00.

The 2nd appellant was alleged to have been the beneficiary of such an unauthorised transfer from the respondents account to the tune of N100,000.00.

As the respondents demand for the reversal of the said unauthorised withdrawals went unheeded and became intractable, the Respondent instituted proceedings before the High Court of Yobe State in suit No. YBS/HC/PT/5CV/2018: Salisu Usman v. First Bank of Nigeria Plc & Anor. for the following reliefs:

i. An order of this court directing or mandating the defendants jointly or severally to refund or pay the plaintiff the sum of four hundred and seventy-four thousand naira (N474,000.00) only being the amount unlawfully withdrawn from the plaintiff account due to the 1st defendant negligence of duty of care.

ii. Exemplary and general damages in the sum of ten million naira (N10,000,000.00) only payable to the plaintiff by the defendant for wilful reckless and or negligence to carry out the duty of care imposed on the defendant by law towards the plaintiff.

iii. Cost of this action on a full indemnity basis.

The parties filed and exchanged pleadings and the matter proceeded to a full dressed hearing where testimonial and documentary evidence was adduced by the parties. The lower court in its judgment held that the respondent had proved his case and it entered judgment for the respondent in the following terms:

1. The 1st defendant failed to carry out its duty of care for the plaintiff by not connecting his mobile phone number to his account so that he would receive SMS or alert on any transaction with his account as a result the sum of N474,000;000:00 (sic) was unlawfully withdrawn from the plaintiffs account of which N100,000.00 was transferred to the 2nd defendants account. Therefore the 1st defendant is hereby adjudged to pay the balance of N374,000:00 to the plaintiff.
2. The 2nd defendant is equally adjudged to refund the sum of N100,000.00 unlawfully transferred to his account from the plaintiffs account.
3. The sum of N100,000:00 is hereby awarded against the 1st defendant in favour of the plaintiff as general damages for negligence to carry out its duty of care to its customer as imposed by law.
4. All parties to bear the cost of prosecuting their respective case.

Judgment for the plaintiff.

The appellants were dissatisfied with the decision of the lower court, and they appealed against the same by notice of appeal filed on 20th October, 2022. The judgment of the lower court which was delivered on 29th September, 2022 is at pages 55 – 76 of the records of appeal, while the notice of appeal is at pages 109 – 113 of the records of appeal.

In prosecution of the appeal, the records of appeal were compiled and transmitted and the parties filed and exchanged briefs of argument. There is the appellants’ joint brief of argument filed on 31st January, 2023 and the respondent’s brief of argument filed on 16th February, 2024 but deemed as properly filed on 19th February, 2024.

At the hearing of the appeal, the appellants even though duly served with a hearing notice were absent and they were also not represented by counsel; whereupon the court invoked the provisions of Order 19 Rule 9(4) of the Court of Appeal Rules, 2021, and treated the appeal as argued by the appellants on their brief of argument. The learned counsel for the respondent thereafter urged the Court to uphold his submissions in the determination of the appeal.

The appellants formulated two issues for determination in their joint brief, namely: