United Bank For Africa PLC V. Yaro Bakiyawa Yahuza (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A (Delivering the Leading Judgment)

This appeal is against the judgment of the Katsina State High Court in Suit No KTH/59/2011 delivered by Honourable Justice Sanisu Tukar on the 96 of April 2013.

The action before the lower Court was commenced by the Respondent, as plaintiff, against the Appellant, as defendant, and his claims were for the sum of N1,248,800.00 being the amount illegally withdrawn from his account with the Appellant, interest on the said sum at the rate of 10% from November, 2008 until full liquidation and costs of the action in the sum of N170,000.00.

The case of the Respondent before the lower court was that he was a customer of the Appellant in its Katsina Branch with a savings account No 1252120009296 and that on the 13th, 14th, 15th, 16th, 17th, 18th and 19th of November 2008, the sums of N380,400.00, N340,200.00, N180,900.00, N201,000.00, N201,000.00, N200,000.00 and N85,500.00 respectively were illegally withdrawn from his said account.

It was his case that he discovered these facts when he went to withdraw monies from his account and was informed by the staff of the Appellant that he had no funds in his account and that he sought for an explanation from the staff of the Appellant for the lack of funds and that when no reasonable explanation was forthcoming, he demanded for his financial statement of account wherein he noticed the illegal withdrawals.

It was his case that his several demands made on the Appellant, both written and oral, to rectify the illegal withdrawals were not acceded to by Appellant.

The Appellant denied the entire case of the Respondent and its case in defence was that the alleged sums were withdrawn using the ATM card of Respondent and that the ATM card was in possession of the Respondent and the secret pin number was known only to the Respondent and the Respondent did not report the loss of the ATM card and as such the monies were either withdrawn by the Respondent himself or by someone the Respondent authorized or permitted to have access to the ATM card and pin number.

It was its case that the account of the Respondent was on-line and that it was the exclusive prerogative of the Respondent of where and when to use or withdraw money from the account with the ATM card without any notice to, consultation with or approval from the Appellant and that the ATM machines are automated and programmed to pay money to anyone with the correct ATM card and pin number without its direct involvement and none of its staff or officer had knowledge of the Respondent’s pin number. It was its case that the Respondent was unable to make further withdrawals from the account because there was not enough credit in the account and that if the alleged withdrawals were by an unauthorized person, the Respondent must have willfully or carelessly or negligently exposed his ATM card and pin number to that person and that such person was not a member of its staff, officer of anyone under its control. It was its case that it shall raise the defence of “act of stranger” and that it took all necessary and proper steps to secure the funds of the Respondent and is thus not liable for the loss arising from the alleged withdrawals.

The matter went to trial and in the course of which the Respondent testified as the sole plaintiff witness in proof of his claims and the Appellant also called one witness in proof of its defence. At the conclusion of trial and after the final addresses of the parties, the lower Court entered judgment in favour of the Respondent. The Appellant was dissatisfied with the judgment and it caused its counsel to file an appeal against it. The counsel to the Appellant filed two notices of appeal – one dated the 10th of April, 2013 containing two grounds of appeal and the other dated the 12th of June, 2013 containing eight grounds of appeal.

In ventilating the grievance of the Appellant on this appeal, its Counsel filed a brief of arguments dated the 31st of July, 2013 and Counsel to the Respondent reacted by filing a Respondent’s brief of arguments dated the 4th of September, 2013 on the 13th of September, 2013. Counsel to the Appellant filed a reply brief of arguments dated the 23rd of September, 2013. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.

In his brief of arguments, Counsel to the Appellant abandoned the notice of appeal dated the 10th of April, 2013 and relied on the notice of appeal dated the 12th of June, 2013 in arguing this appeal. Counsel formulated five issues for determination for the eight grounds of appeal contained in that notice of appeal and the issues were:

i. Whether the learned trial Judge made a correct approach to the evidence led by the parties when he reached a conclusion on the evidence led by the Respondent before considering that of the Appellant.

ii. Whether the court below rightly relied upon the admission of knowledge of banking fraud and other fraudulent withdrawals in the banking sector by defence witness which were not part of the pleadings to hold that the Respondent’s evidence was un-impeached.

iii. Whether having regard to the statement of claim and the evidence advanced before the court below, the Respondent proved his case to entitle him to judgment against the Appellant.