Thaddeus V. Gtb Plc (2021)
LAWGLOBAL HUB Lead Judgment Report
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
The appellant, as plaintiff in Suit No. FCT/HC/CV/4414/2012 which he instituted in the High Court of the Federal Capital Territory, Abuja by way of a writ of summons, sought in his statement of claim the following relief:
“i. A DECLARATION OF COURT that there is a valid and subsisting contract (banker and customer relationship) between the plaintiff and the defendant.
ii. A DECLARATION that the freezing, restriction/encumbrance placed on the plaintiff’s account No. 0109918148 by the defendant without any justifiable reason whatsoever is unreasonable, unlawful, illegal and unconstitutional.
iii. A DECLARATION OF COURT that the defendant’s consistent refusal to honour the plaintiff’s demands via ATM and withdrawal slips without any reason whatsoever when his account was/is credited is wrongful, illegal, disparaging and constitute a breach of contract.
iv. A DECLARATION OF COURT that the defendant is under obligation to honour the plaintiff’s demands at all times provided his account is in credit up to the amount requested therein.
v. A DECLARATION OF COURT that the continuous detention of the plaintiff’s several and various sum of money after demands without any reason whatsoever is wrongful, illegal and unlawful.
vi. AN ORDER OF COURT directing the defendant to promptly defreeze and remove any restriction placed on the plaintiff’s account No. 0109918148 with the defendant Asokoro Branch without notice with immediate effect..
vii. AN ORDER OF COURT restraining the defendant, his agents, successors in title from further acts of freezing, restrictions, breach of contract, detention, humiliations, embarrassments of the plaintiff in relation to his demands on his account No. 0109918148..
viii. AN ORDER OF COURT compelling the defendant to pay to the plaintiff;
a. The sum of N5,000,000.00k (Five Million Naira Only) for breach of contract.
b. The sum of N5,000,000.00k (Five Million Naira Only) for tort of detinue.
c. The sum of N30,000,000.00k (Thirty Million Naira only) as exemplary and aggravated damages.
d. The sum of N50,000,000.00k (Fifty Million Naira only) as compensation for stress, untold hardships, inconveniences unnecessary apprehension, pains, trauma depression suffered by the plaintiff as a result of the actions of the defendant.
e. The sum of N5,000,000.00K (Five Million Naira Only) for breach of constitutional right of fair hearing.
f. The sum of N800,000.00k (Eight Hundred Thousand Naira only) as professional fee paid to prosecute this action.
g. The sum of N10,000,000.00k (Ten Million Naira Only) for defamation.
h. Cost of action”.
The respondent contested the case by filing a statement of defence, wherein the appellant’s claim was denied.
At the trial, the appellant testified as a witness in proof of his claim, while the respondent also fielded a witness in its defence. At the close of evidence and after the addresses of learned counsel for the contending parties, the trial Court delivered a reserved judgment on 05/10/2016 whereby, the claim was dismissed.
Being dissatisfied with the decision of the trial Court, the appellant filed a notice of appeal containing 15 grounds.
In his brief, filed on 10/04/2017, the appellant distilled the following 7 issues for determination:
“1. Whether the lower Court was right and did not occasion a miscarriage of justice to have relied on Exhibits P.W.1G1-2, P.W.1N1-25, D.W.1B1-25 and P.W.1B in preference to Exhibit P.W.1N1-4 (the contract document) in reaching the decision dismissing the appellant’s claim. (Distilled from rounds 1, 2, 3, 7 and 8).
- Whether the lower Court was right to have relied on the Central Bank Guidelines and Exhibit P.W.1N1-24 to hold that Exhibit P.W.1C (CAC ID CARD) was imposed on the respondent and the appellant never fulfilled the requirements to operate his account with the respondent having made a deposit of 1.6 million naira on 11/7/2012. (Distilled from Grounds 4, 5 and 6).
- Whether the Lower Court was right to hold that the appellant’s claim for Slander (Defamation) arising from the dishonoured Orders and the words uttered was not proved by the preponderance of evidence. (Distilled from Ground 9).
- Whether the lower Court was to hold that the respondent rightly dishonoured the appellant’s withdraw requests (demand orders) on his account even when the appellant’s account was sufficiently in credit up to the various sums requested by the appellant. (Distilled from Ground 10).
- Whether the lower Court properly evaluated the evidence on record and does not occasion a miscarriage of justice or breach the appellant’s right to fair hearing by not pronouncing on all issues/reliefs sought by the appellant (Distilled from Grounds 11 and 12).
- Whether the lower Court was right by rejecting the statement of account and a letter demanding for an apology and statement of account pursuant to the relevant provisions of the Evidence Act 2011. (Distilled from Grounds 13).
- Whether or not based on the facts and circumstances of this case, the delivery of judgment outside 90 days after the close of evidence and the failure to avail the appellant, a copy of the judgment within 7 days does not occasion a miscarriage of justice and breach of fair hearing within a reasonable time. (Distilled from Grounds 14 and 15)”.
Learned counsel for the respondent framed 3 issues for determination in his brief filed on 07/06/2021 but deemed as properly filed on 15/05/2021. The issues formulated by the respondent are:
“1. Whether or not from the totality of the evidence adduced at the trial, the lower Court was right when he held that the appellant’s case lacked merit because the appellant was in breach of the terms of the contract he entered into with the respondent and accordingly dismissed the appellant’s claim for breach of contract”.
- “Whether or not from the totality of the evidence adduced at the trial, the lower Court was right when he held that the appellant did not establish his allegation of defamation and accordingly dismissed the appellant’s claim for defamation”.
- “Whether or not an appellate Court can rightly interfere or disturb the findings of the lower Court which are not found to be perverse or occasioned a miscarriage of justice”.
I have read the grounds in the notice of appeal and, having juxtaposed them with the issues identified by the parties, I am of the opinion that the appeal will be better determined on the issues raised by the appellant. In doing so, the 7th issue framed by the appellant will be taken first and, thereafter, if need be, the 1st, 2nd, 4th and 5th will be taken and treated together. Finally, issues 3 and 6 will be taken simultaneously.
“Whether or not based on the facts and circumstances of this case, the delivery of judgment outside 90 days after the close of evidence and the failure to avail the appellant, a copy of the judgment within 7 days does not occasion a miscarriage of justice and breach of fair hearing within a reasonable time”.
The substance of the appellant’s arguments is that the trial Court, by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), was mandatorily required to deliver its judgment within 90 days after the conclusion of evidence and final addresses; but that in this case, the trial Court delivered its judgment “over 180 days after the adoption of written addresses and over 90 days after the period of re-adoption of the same addresses”. The appellant also complained that he could not get a copy of the judgment within 7 days as stipulated under Section 294(1) of the Constitution as he “got the judgment almost 3 months after the judgment was delivered”.
Relying on the case of Marwa v. Nyako (2012) All FWLR (Pt. 622) 1621, the learned appellant submitted that “the apex Court had settled that, any time fixed by the Constitution for the “doing of anything’ must be complied with as such time is like a rock of Gibraltar that cannot be extended”.
The above constitutional provision has been considered by the Supreme Court in many cases. The flow of judicial reasoning of the apex Court seems to be that every Court should comply with the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). However, where the issue of failure to comply with the said Section of the Constitution arises, the failure per se will not automatically vitiate or nullify the judgment. In such a situation, it has been admonished that the appellate Court should examine the judgment and even where it was not delivered within the time stipulated by the Constitution, the judgment should not be treated as a nullity, if no miscarriage of justice has been occasioned to the appellant. See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 and Kalu v. Igwe (2002) 5 NWLR (Pt. 761) 678.
Whether or not the party complaining of non-compliance with Section 294(1) of the Constitution has suffered a miscarriage of justice will depend on the facts and circumstances of the case. Where the evaluation of the evidence, tendered by the parties, would depend largely on the credibility of the witnesses who testified, inordinate delay in delivering a trial Court’s judgment would invariably lead to a miscarriage of justice, as the trial Court could be inferred to have lost recollection of vital conduct or demeanour of the witnesses, or some of the vital witnesses, who testified. This point was clearly made by the Supreme Court in Lawal v. Dawodu (1972) 8-9 S.C. 83 as follows:
“This is not the occasion where we have to express the disapproval of this Court of inexcusable delay in writing judgment but it is well worth considering by all Courts that human recollections may lose their strength with the passage of time and that justice delayed is as bad as justice denied and may even under certain circumstances be worse”.
See also, Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101 and Savannah Bank of Nig. Ltd. v. Starite Industries Overseas Corporation (2009) 8 NWLR (Pt. 1144) 491.
In this case, the trial Court heard or took the final addresses of the learned counsel for the parties on 02/12/2015 and reserved its judgment for 18/05/2016. See page 114 of the record of appeal. The record of appeal shows that on 16/06/2016, the learned counsel for the parties appeared before the trial Court to “re-adopt” their addresses and after which the Court adjourned the case “to the 30th June, 2016, for judgment” page 115 of the record of appeal. Judgment was, however, eventually delivered on “5th October, 2016” — See page 115 of the record of appeal.
From the record of proceedings, summarized above, the trial Court ab initio reserved its judgment to be delivered more than 165 days after the final addresses but, surprisingly, none of the parties complained about it. Even after “the re-adoption” of the final addresses, the trial Court did not deliver its judgment within 90 days.
Honestly, the trial Court did not advance any reason(s) for the inordinate delay in writing and delivering its judgment.
Notwithstanding that, one cannot speculate on the reason for the failure by the Court to deliver its judgment within the time limited by Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), such inexcusable delay is condemnable and should not be encouraged, as it is not only a gross violation of the basic norm or groundnorm of the Federal Republic of Nigeria, which is binding on all its citizens and arms and organs of Government.
The relevant question now is, whether or not the judgment of the trial Court should be set aside on the basis of failure by the trial Court to comply with the provisions of Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It is the law that by the clear and unambiguous provisions of Section 294 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 294(1) should not be read in isolation of Section 294 (5). Both Sub-sections(1) and (5) of Section 294 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), should be read and considered together. For the avoidance of ambiguity, Section 294 Sub-section (1) and (5) of the Constitution provide as follows:
“S. 294 (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
“294 (5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
On the view that Section 294(1) and (5) should be read together, the Supreme Court, per Galadima, JSC; in Cotecna International Ltd. v. Churchgate Nig. Ltd. & Anor. (2010) 12 SC (Pt. II) 140; (2010) 18 NWLR (Pt. 1225) 346 at 387 stated as follows:
“Section 294(1) of the 1999 Constitution provides that a written judgment of every Court established under the Constitution shall be delivered not later than ninety days after the conclusion of evidence and final address. By virtue of Subsection 5 of Section 294 of the Constitution, this Court is enjoined not to set aside the judgment of the trial Court solely on the ground that it was delivered outside the ninety days period after final address, unless the party complaining has suffered a miscarriage of justice”.
See further, Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111; Eseigbe v. Agholor & Anor. (1990) 7 NWLR (Pt. 161) 234; Veritas Insurance Co. Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (Pt. 281) 349 and Alhaji Musa Umar v. Alhaji Tijjani Saleh Geidam (2019) 1 NWLR (Pt. 1652) 29.
As stated earlier, where the complaint is on failure by a trial Court to deliver its judgment within time, the appellant must also show that the failure occasioned a miscarriage of justice. In this respect, the Court has a duty to examine the judgment with a view to determining whether the non-compliance actually occasioned a miscarriage of justice. Where the non-compliance with the constitutional time for delivering a judgment did not occasion any miscarriage of justice, an appellate Court will not disturb the judgment of the lower Court. See Savannah Bank of Nig. Ltd. v. Starite Industries Overseas Corporation (supra) and Atungwu v. Ochekwu (2013) 14 NWLR (Pt. 1375) 605.
In this case, the appellant did not allege nor state the injustice which he suffered as a result of the non-compliance by the trial Court with the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Further, I have examined the proceedings of the trial Court and the judgment delivered on 05/10/2016. The relevant evidence before the trial Court was mostly documentary and the trial Court’s evaluation thereof was not and could not have been blurred by reason of loss of memory or recollection of the demeanour of the witnesses who testified before it.
To save time, having regard to the totality of the facts and circumstances of this case, this issue should be resolved against the appellant and it is hereby so resolved.
ISSUES 1, 2, 4 AND 5
I am of the opinion that issues 1, 2, 4 and 5 distilled by the appellant, which cover the respondent’s issues 1 and 3, can be condensed into the following issue:
Whether or not, based on the documentary and oral evidence before it, the trial Court was right in dismissing the appellant’s claim for breach of contract and the damages flowing therefrom.
The kernel of the appellant’s arguments is that the trial Court erred in placing reliance on exhibits “P.W.1G1-2”, “P.W.1N1-25”, “D.W.1B1-25” and “P.W.1B” in preference to exhibit “P.W.1N1-4” which he claims to be “the contract document”. It was also contended that “the lower Court was wrong to have relied on the Central Bank Guidelines and exhibit P.W.1N1- 24 to hold that exhibit P.W.1C (CAC ID CARD) was imposed on the respondent and the appellant never fulfilled the requirements to operate his account with the respondent having made a deposit of N1,600,000.00 (One Million, Six Hundred (sic) Naira) on 11/07/2012”.
The appellant submitted that the trial Court was also wrong “to have held that the respondent rightly dishonoured the appellant’s withdrawal requests (orders) on his account even when appellant’s account was sufficiently in credit up to the various sums requested”.
In response, learned counsel for the respondent argued that the trial Court properly evaluated the evidence before it and arrived at a right decision. Counsel contended that exhibit “P.W.1N1-4” formed the contract between the parties and contained the terms agreed to by them. Learned counsel reproduced the terms and submitted, inter alia, that:
“The appellant, having agreed to be bound by the above terms of the contract, was under obligation to present any of the regulatory means of identification. He failed to do so and only offered flimsy reasons for his failure to present the required documents”.
The appellant gave a “brief statement of fact” of the case at page 3 of his brief of arguments as follows:
“The appellant maintains and operates a savings account with the respondent at Asokoro Branch of the FCT Abuja. On 3/8/12 and 6/8/12 among other days while the appellant’s account was sufficiently in credit up to the sum of N1,600,000.00 (One Million Six Hundred Thousand Naira) the respondent refused to honour the orders and demands for withdrawal of a total sum of N540,000.00 (Five Hundred and Forty Thousand Naira) only personally presented by the appellant vide withdrawal slips (Exhibits P.W.1J1-2). The appellant’s account was frozen without any reason and every attempt to ascertain the rationale behind the action of the respondent proved abortive. Consequently, the appellant initiated the action at the lower Court which gave rise to his appeal”.
The relevant facts supplied by the respondent in its brief of arguments are as follows:
“The respondent on her part denied the appellant’s claims at the lower Court and alleged that the plaintiff opened a savings account without proper documentation. The respondent alleged that the plaintiff was required to present a valid regulatory identification card such as National ID Card, Driver’s license or International Passport as mandated by the Central Bank of Nigeria but instead, the Appellant presented a National ID Card with incorrect details.
The respondent alleged that she rejected the National ID Card but allowed the appellant to operate the account on the condition that, once the savings account is credited up to the sum of N1,000,000 (one million naira), the appellant would be required to present a valid regulatory ID Card to operate the account. The appellant agreed and commence operating the account.
The respondent alleged that the appellant deposited the sum of N1,600,000 (One million, Six Hundred Thousand Naira) into his savings account, and failed, refused or neglected to present a valid regulatory ID Card as agreed in the contract he entered into with the respondent. The respondent then placed a restriction on his account and informed him of the need to regularize his account by providing the valid regulatory ID Card.”
From facts of the case, the area of dispute between the parties is very narrow and it is whether or not the respondent was right in its refusal to dishonour the appellant’s requests to withdraw sums amounting to N540,000.00 from the amount he deposited in his account with the respondent/bank.
I will state straightaway that, the trial Court was not wrong to have considered the totality of the documentary evidence, including exhibits P.W.1G1-2, P.W.1N1-25, D.W.1B1-25, P.W.1B and P.W.1N1-4. As a general rule, a trial Court has a duty to consider and assess the whole evidence, both oral and documentary tendered before it. Where the case has been contested or fought on the basis of pleadings, the Court has a duty to confine itself to the evidence borne out of the pleadings. On the principle of law, that the Court should confine itself to evidence on matters which have been included in the pleadings, see George v. Dominio Flour Mills (1963) 1 SCNLR 117; National Investment Co. Ltd. v. Thompson Organisation Ltd. (1969) 1 NMLR 99; George v. U.B.A. Ltd. (1972) 8-9 SC 264; Emegokwue v. Okadigbo (1973) 4 SC 113; Woluchem v. Gudi (1981) 1- 5 SC 291 and Sosanya v. Onadeko (2005) 8 NWLR (Pt. 926) 185.
The rationale for a Court confining itself to the evidence borne out of the pleadings is that parties are bound by their pleadings. Therefore, a Court should only decide on issues put forward by the parties in their pleadings. See Yakassai v. Incar Motors (Nig.) Ltd. (1975) 5 SC 107; Enang v. Adu (1981) 11-12 SC 25; Osafile v. Odi (1990) 3 NWLR (Pt. 137) 130 and SCOA Nigeria Ltd. v. Mr. Olabode Vaughan & Anor. (2003) 1 NWLR (Pt. 800) 210.
In this case, the appellant pleaded in paragraphs 8, 9, 10, 11, 12, 13, 14, 15 and 16 of his statement of claim as follows:
- The plaintiff avers that he operates an account with the defendant with the following particulars:
a. YENGE SAATSAHA THADDEUS
b. Account No. SAVINGS
c. Account No. 0109918148
d. Branch ASOKORO, ABUJA
- The plaintiff avers that he obtained an “Individual Account Opening Form” with the defendant at Asokoro branch as a precondition for opening an account. The copy of the form is hereby pleaded and shall be relied upon at the trial.
- The plaintiff avers that he filled and completed the said Form dated 01/11/2011 and used his National ID Card No. 00332147801 issued to him by the Federal Republic of Nigeria on 09/11/2004. The said National ID Card is hereby pleaded and shall be relied upon at the trial.
- The plaintiff avers that he submitted the completed Form to the defendant at the Asokoro branch which Form was refused on the grounds that his National ID Card had computer errors (e.g. the plaintiff last name “Thaddeus” is spelt “Theddeus” on his National ID Card).
- That consequent upon paragraph 11 above the plaintiff intimated the defendant that even though his National I.D. Card contained those errors, he had been using it in all his dealings where National ID Card is required.
- Notwithstanding the plaintiff’s explanation above, the defendant refused the National I.D. Card and requested for “any other” Identity Card without errors for plaintiff’s identification.
- Consequently upon the defendant’s request in paragraph 13 above, the plaintiff presented his C.A.C ID Card with CAC NO. CAC/IND/NBA/24830 issued to him on 17/01/2011 which the defendant unconditionally accepted for identification. The CAC ID Card is pleaded and shall be relied upon at the trial.
- The plaintiff avers that he corrected the content of the first filled and completed Form via correction fluid to reflect the content of CAC ID Card which form was refused because of the correction fluid used thereon by the defendant.
- The plaintiff avers that the defendant issued a new “Individual Account Opening Form” to him wherein he filled and incorporated the CAC ID Card acceptable to the defendant and his Savings Account was thereafter opened. The Form incorporating the CAC ID Card and shall be relied upon at the trial. The defendant is put on notice to produce same at the trial”.
In its defence, the respondent pleaded in paragraphs 6 to 21 of its statement of defence as follows:
“6. The defendant admits paragraph 8 of the statement of claim only to the extent that the plaintiff maintains an account with it.
- the defendant, in addition to paragraph 6 above, avers that the said account has not met the requisite documentation as required by ‘Know Your Customer’ (KYC) provisions of the Central Bank of Nigeria.
- The defendant denies paragraph 9 of the statement of claim.
- The defendant denies paragraph 10 of the statement of claim and contends that the said National Identify Card was never accepted by the defendant as the name stated therein was different from the plaintiff’s name and also that the date of birth on the said identity card is different from that supplied by the plaintiff.
- Further to the above, the defendant avers that as an institution founded on strong ethical principle, it takes adequate steps to ensure compliance with various regulatory requirements. Hence, the defendant ensures that due diligence is carried out, in line with Central Bank Guidelines, on all persons seeking to operate an account with the defendant to avoid identity theft.
- The defendant admits paragraph 11 of the statement of claim
- The defendant avers, in addition to paragraph 11 above, that it usually does not accept identity card with discrepant information with that supplied by prospective customers.
- The defendant denies paragraph 12 of the statement of claim.
- The defendant admits paragraph 13 of the statement of claim only to the extent that it refused to use the said National Identity Card as means of identification to open an account for the plaintiff, the defendant denies every other allegation contained therein and hereby put the plaintiff to the strictest prove of same.
- The defendant denies paragraph 14 of the statement of claim.
- The defendant, in addition to paragraph 15 above, avers further that the identity cards approved by the Central Bank of Nigeria for operating an account in Nigeria are National Identity card, Driver’s license and international passport. However, due to the difficulties associated with securing the approved means of identification, the Central Bank approved also the use of the Voter’s card in order to ease the difficulties of indigent Nigerians in running an account in Nigeria as a result of the required high standards.
- The defendant further avers that, not every Nigerian has the Voters Card, hence, the Central Bank of Nigeria through the Know Your Customer (KYC) guideline, permits the defendant to open accounts for students and other customers without regulatory Identity Card, provided that as soon as the transaction on the account hits N1 Million, the defendant is required to carry out detailed KYC on the customer and the customer must provide the necessary regulatory Identity Card and failure to so do will make the defendant to place caution on the account until same is provided.
- The defendant avers that by virtue of the account opening agreement, the plaintiff voluntarily agreed to and authorized the defendant to carry out all “the Know Your Customer” procedures specified by applicable laws and/or regulations as well as the defendant internal policies.
- The defendant avers that only salary accounts with appropriate referral from employers are allowed to be run without the necessary regulatory Identity Cards.
- The defendant denies paragraph 15 of the statement of claim.
- The defendant admits paragraph 16 of the statement of claim only to the extent that an account was opened for the plaintiff and denies every other averment contained therein. The plaintiff is hereby put to the strictest prove of same”.
From the pleadings of the parties, it is not only one document that is alleged to govern the transactions between them.
However, by paragraph 9 of the appellant’s statement of claim, the foundational ‘contractual’ document is the “Individual Account Opening Form” which was tendered by the appellant and was admitted by the trial Court as “Exhibit P.W.1G” — See page 90 of the record of appeal. The same document “Individual Account Opening Form” was tendered by the appellant and admitted as “Exhibit P.W.1N1-4” by the trial Court — see page 94 of the record of appeal.
The appellant’s loudest and main complaint is that the trial Court did not rely on exhibit “P.W.1N1-4” but on other exhibits. This argument has no factual foundation in the judgment of the trial Court. In fact, the trial Court elaborately considered and evaluated exhibit P.W.1N1-4, in its judgment, before it proceeded to evaluate the other documentary evidence. For the avoidance of any doubt, the learned trial Judge, Hon. Justice O.O. Goodluck, elaborately stated in his lordship’s judgment, on pages 151 to 153 of the record of appeal, as follows:
“J. Majiyagbe Esq. in his written address drew the attention of this Court to Exhibit P.W.1N1-4. Defendant individual account opening form “duly filed and signed by the plaintiff. In the light of the crucial importance of exhibit P.W.1N1-4 to this case this Court will reproduce hereunder relevant aspects of the opening account forms, hereunder.
At page 2, the portion subtitled “documents required to open your account”
- Identification document for each signatory e.g. International Passport, National ID Card, National Drivers License, CIV, please bring along the originals for signating.
I hereby apply for the opening of accounts with Guaranty Trust Bank Plc. I understand that the information given herein and the documents supplied are the basis for opening such account(s) and therefore warrant that such information is correct.
I have read the terms and conditions governing the operations of the account(s) which are presented and agreed to be bound by them”
Page 3, the defendant’s “Account Opening Agreement” provides inter alia;
“We confirm and agree that my/our account(s) and all banking transactions between me/us (the “customer, I or “me” or “us” or “we”) and Guaranty Trust Bank Plc. (“the bank”) shall be governed by the conditions specified below and/or the terms of any specific agreement between me/us and the Bank or where not regulated by either the conditions of such agreement by customary banking practice in Nigeria”
- The Bank is hereby authorized to undertake all “know your customer” KYC procedures specified by applicable law and/or regulations and/or Bank procedures including the confirmation of our details and legal status at the appropriate legal registry.
We hereby authorize you to debit my/account without further notice to me/us for the cost of attendance to such KYC procedures.”
By the contract document exhibit P.W.1N1-4, other documents are incorporated and the trial Court was right to have considered them together with exhibit P.W.1N1-4 before arriving at its final decision.
To be brief, I have read the judgment of the trial Court and I find no basis to disturb it for any of the complaints raised by the appellant in his issues 1, 2, 4 and 5.
For all the reasons I have advanced in this judgment, these issues ought to be resolved against the appellant and in favour of the respondent.
ISSUES 3 AND 6
Appellant’s issues 3 and 6 are the same as the respondent’s issue 2. The live issue here is:
Whether or not the trial Court was right in dismissing the appellant’s claim for slander (defamation) having regard to the facts and circumstances of this case.
I have considered the arguments of both the parties on this issue. Without any ado, I hold that the trial Court was right when it comprehensively held and decided as follows:
“Turning to the plaintiff’s action on the tort of defamation, the plaintiff has alleged in his pleadings that one of the defendant’s staff by the name Comfort said in the presence of customers thus:
“… you have to go and pay some money into your account for bank charges… I meant you don’t have enough money in your account for bank charges…”
The plaintiff did not call any of the customers allegedly in attendance at the time the defamatory remarks were made against him.
It is now settled that a person who alleges defamation must, amongst other things, establish the publication of the slanderous remarks. What is publication? Publication means the making known of a defamatory statement to a person other than the plaintiff, in other words, the publication must be communicated to a third party. In the instant case, none of the customers who heard Comfort make the alleged remark came to Court to say what she heard. In effect, publication of the remarks is not established before this Court.
This being the case, this Court finds the decision in OKATCHA v. OLUMESE (1967) F.N.L.R. page 174 and the case of ACCESS BANK PLC. v. MUHAMMED (2014) 6 N.W.L.R. (PART 1404) page 613 illuminating and instructive to this case. It was held that publication of the defamed words must be proved and a 3rd party must testify by stating that in his opinion he was affected by the defamatory words, hence, the esteem of the defamed person has been lowered by the remark”.
There is no legal or factual reason to disturb the above decision of the trial Court.
Issues 3 and 6 raised by the appellant are also resolved against him.
Having resolved all the 7 (seven) issues identified and argued by the appellant against him, I find no merit in this appeal.
This appeal is hereby dismissed for being bereft of any merit.
The judgment of the trial Court, per Hon. Justice O. O. Goodluck, delivered on 05/10/2016 in Suit No. FCT/HC/CV/4414/2012 is hereby affirmed.
The parties are ordered to bear their respective costs.