First City Monument Bank PLC V. Linus G. Nyama (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Summary Judgment/Ruling of the

Kaduna State High Court delivered on the 20th October, 2010 by M.M Ladan J.

The Respondent was the Applicant at the lower Court while the Appellant was the Dependant.

The facts of the case leading to this appeal are as follows:

The Respondent sometimes in March 2009 during his NYSC, opened an Account No. 21946000050250 with the Appellant (Bank) at its Ali Akilu branch, Kaduna, On 24th August, 2010 the Respondent presented a request to withdraw money from the account but the Appellant Bank denied him access to his money, in other words refuse to release him the money.

He caused his counsel to write a letter to the Appellant Bank demanding unconditional release of the money. The letter was never responded to by the bank nor was the money released to the Respondent.

By a motion on notice dated 24th September, 2010 brought pursuant to Order 2 Rule III(1)(2)(3) of the Fundamental Rights (Enforcement Procedure) Rules 2009, the Respondent as Applicant claims against the Appellant the following reliefs.

1. “A DECLARATION that the refusal by the Respondent to allow the applicant withdraws money from his savings account No. 21946000050250 with the Respondent is an infringement of the applicant’s fundamental rights against compulsory acquisition of property guaranteed under section 44 of the constitution of the Federal Republic of Nigeria.
2. AN ORDER granting unto the applicant unconditional access to his Account No. 21946000050250 with the Respondent.
3. AN ORDER of perpetual injunction restraining the Respondent from further taking compulsory possession of the applicant’s money in his account with the Respondent.
4. Damages in the sum of Ten Million Naira (N10,000,000.00) for the business inconvenient caused by the Respondent to the applicant.
5. AND for such further order or order as the honourable Court may deem fit to make in the circumstances of this case”.

Though, the Respondent was served with the Court processes it failed to filed any pleadings or counter affidavit in its defence. At the hearing of the matter, counsel for the applicant applied for judgment. The Respondent was absent and unrepresented at the hearing of the matter. The lower Court on 20/10/2010 gave judgment in favour of the applicant and specifically ordered as follows:-

1. “I declared that the refusal by the Respondent to allow the applicant withdraw money from his savings account No, 21946000050250 with the Respondent is an infringement of the applicant’s fundamental rights against compulsory acquisition of property guaranteed under section 44 of the constitution of the federal republic of Nigeria.
2. An order is made granting unto the applicant unconditional access to his account No. 21946000050250 with the Respondent.
3. An order of perpetual injunction is made restraining the Respondent from further taking compulsory possession of the applicant’s money in his account with the Respondent.
4. Damage is awarded in the sum of Ten Million Naira (N10,000,000.00) for the business inconvenience caused by the Respondent to the applicant”.

Dissatisfied with the Judgment, the Appellant filed a notice of appeal and a further amended notice of appeal dated 29th October, 2013 containing 5 (five) grounds. Parties in accordance with the rules of this Court filed their respective briefs of argument.

The Appellant distilled three issues for determination from his five Grounds of appeal as follows;

1. “Whether the refusal to allow the Respondent withdraws money from his savings account with the Appellant was an infringement of the Respondent’s fundamental right against compulsory acquisition of property guaranteed by section 44 of the 1999 constitution, (Distilled from Ground 2 of the further amended Notice of Appeal).
2. Whether the learned trial judge was right when he assumed jurisdiction and granted reliefs 1, 2 and 3 claimed by the Respondent under the Fundamental Rights (Enforcement Procedure) Rules 2009. (Distilled from Ground 1 of the further amended Notice of Appeal).
3. Whether the failure of the learned trial judge to adequately and properly evaluate the affidavit evidence to see if there was established a breach of the Respondent’s Fundamental Right guaranteed by section 44 of the 1999 constitution before he granted all the reliefs sought against the Appellant had not occasioned a miscarriage of justice (Distilled from Grounds 3, 4 and 5 of the further amended Notice of Appeal)”.

The Respondent in his brief adopted issues No. 1 and 2 formulated by the Appellant and add a third one thus;

“Whether the non evaluation of the affidavit evidence per se affects the credible judgment of the trial Court which evidence were uncontroverted and which the trial Court believed”.

The issues formulated by the Appellant are all encompassing and have captured the essence of the dispute between the parties. Same is adopted for the determination of this appeal.