Eze B. Osuji & Co

Eze B. Osuji & Co Barrister & Solicitor, Notary Public & Property Consultants

25/11/2023

“Violence against women and girls continues to be the most pervasive and pressing human rights issue in the world today. It is both an abhorrent crime and a public health emergency, with far-reaching consequences for millions of women and girls in every corner of the globe.”

- UN Secretary-General António Guterres

I have reached 100 followers! Thank you for your continued support. I could not have done it without each of you. 🙏🤗🎉
25/11/2023

I have reached 100 followers! Thank you for your continued support. I could not have done it without each of you. 🙏🤗🎉

12/09/2023

The Middle-Man Politics

If you go to Balogun market, Lagos Island, right now, you will meet boys volunteering to take you to the best place to buy your clothes. If you were a novice, you’d tag along and be thankful for the kind gesture.

What you don’t know is that these boys have established business relationships as middle-men for the owners of those shops. Their job is to get potential customers in exchange for commission.

They also get a few naira notes as ‘thank you’ from the customers they have ‘helped’.

This system is called Oso-Ahia. [The middle-man hustle]

Political economists have designed the supply and demand framework to explain how government works. The office of the citizen which is touted as the highest office in a democracy makes a demand of good governance. Thus, it is the job of the elected to supply it.

However, I find that the suppliers maneuver the choice of demand to suit the inventory that they are willing to offer. Consequently, this is where the middle-man comes in. And they do a fine job!

Dear eligible citizens of Nigeria,It is your civic duty to the Nigeria state to ensure you get your PVC and cast your vo...
14/06/2022

Dear eligible citizens of Nigeria,

It is your civic duty to the Nigeria state to ensure you get your PVC and cast your vote via the electoral system in 2023.

I urge you to go out of your comfort zone. Visit any of the designated voters registration centre or via www.cvr.inecnigeria.org get registered and eligible to vote in 2023.

I also wish to remind you that, you will do yourself and your nation Nigeria disservice if you select any polling unit far away from your residential area. Remember, on the day of voting THERE SHALL BE NO VEHICULAR MOVEMENT. Select a polling unit close to you.

Thank you

WHETHER THE DRIVER OF A VEHICLE CAN BE HELD LIABLE FOR FAILURE TO FASTEN A SEATBELT BY A PASSENGER IN HIS VEHICLECASE TI...
03/08/2021

WHETHER THE DRIVER OF A VEHICLE CAN BE HELD LIABLE FOR FAILURE TO FASTEN A SEATBELT BY A PASSENGER IN HIS VEHICLE
CASE TITLE: FEDERAL ROAD SAFETY COMMISSION & ORS v. BARR. OSUOBENI EKOI AKPOS (2021) LPELR- 52917(CA)
JUDGMENT DATE: 9TH FEBRUARY, 2021
JUSTICES: PETER OLABISI IGE, JCA
YARGATA BYENCHIT NIMPAR, JCA
MOHAMMED BABA IDRIS, JCA
COURT DIVISION: ABUJA
PRACTICE AREA: Government Agency- Federal Road Safety Commission
FACTS:
The Respondent was accosted by the officers of the Federal Road Safety Commission while he was in transit on the 1st of June, 2012. The Road Safety officers demanded his vehicle papers which he presented to them and the officials returned same to him after finding them up to date. However, as the person who was sitting in the passenger seat was alighting from the vehicle, the officials claimed he did not have his seat belt fastened on and despite his explanation to the contrary, they demanded for the Respondent’s vehicle documents a second time.
While he was trying to present the papers, one of the FRSC officers snatched them from him and in the process tore the particulars. This caused the Respondent to introduce himself as a lawyer, which only infuriated the officers more. They then forced him back into the car and took him to their office where they deflated the tyres, impounded the car and again started beating him for disobeying an officer on duty.
The Respondent subsequently commenced an action against the Appellants via a Writ of Summons, claiming against the Appellants for a declaration that the continuous seizure of the Respondent’s Honda Rover car at the FRSC office by the Appellants amounts to detinue in law, an Order of Court commanding the Appellants to release the car unconditionally to the Respondent, the sum of Fifty Million Naira as general damages for detinue and the sum of Two Million Naira as cost of litigation.
The High Court found against the Appellants and granted the reliefs sought by the Respondent.
Dissatisfied with the decision of the trial High Court, the Appellants appealed.
ISSUE(S) FOR DETERMINATION:
The appeal was determined upon consideration of the following issues:
1. Does the High Court of the Federal Capital Territory have jurisdiction to entertain relating to the impoundment and detention of his car by Appellants as the act of impounding of his vehicle is an administrative act of the 1st Appellant, which is an agency of the Federal Government of Nigeria?
2. Was the trial Court right in holding that there was no basis for the issuance of Notice of Offence sheet on the Respondent notwithstanding that Regulation 58(4) of National Road Traffic Regulation, 2004 made pursuant to Section 5(1) of Federal Road Safety Commission (Establishment) Act, 2007 placed the duty on the driver of a vehicle to ensure that all passengers in the vehicle have their seat-belts firmly fitted while the vehicle is in motion?
3. Assuming without conceding the trial Court had jurisdiction to entertain the suit, was the trial Court right in granting the damages of N5 Million as damages for tort of detinue against the Appellants.
4. From the evidence placed before the trial Court by the Respondent, was the trial Court right in awarding the sum of N1 Million for assault and battery (“merciless beating”) of the Respondent.
5. Was the trial Court right in dismissing the Counterclaim of the Appellants without recourse to the evidence before it.
The Appellants’ Counsel submitted that the High Court of the FCT lacked jurisdiction to entertain the Respondent’s claim relating to the impounding and detention of his car by the Appellants as the act of impounding of his vehicle is an administrative act of an agency of the Federal Government of Nigeria and any action challenging its administrative act can only be instituted at the Federal High Court. It was also argued that it is the responsibility of the Respondent to ensure that any passenger in his car is wearing a seatbelt, failure of which amounts to an offence and the FRSC Act has empowered the Commission and its officers to impound vehicles of persons reasonably suspected of committing such offences.
On the other hand, the Respondent’s Counsel contended that the reliefs sought by the Respondent are purely based on the law of tort of detinue, assault and battery over which the High Court of the FCT definitely has jurisdiction. ​The Respondent’s Counsel contended further that the Appellants’ counterclaim is a separate action on its own and over which they were expected by law to lead evidence in proof and can only succeed on the strength of their case. The Appellants did not prove by evidence how they arrived at the sum claimed as fine in the counterclaim which is in the realm of special damages and ought to be pleaded, particularized and proved mathematically by the Counter Claimants.
DECISION/HELD:
In conclusion, the Court found the appeal unmeritorious and thereby dismissed the same. Consequently, the judgment of the Federal Capital Territory High Court was affirmed.
RATIO
GOVERNMENT AGENCY- FEDERAL ROAD SAFETY COMMISSION: Instance where the Federal Road Safety Commission will be held to have no basis for issuing a notice of offence sheet –
“The Appellants under issues 2 and 3 challenged the finding that there was no basis for the Notice of offence sheet issued on the Respondent notwithstanding Regulation 58 (4) of the National Road Traffic Regulations, 2004 made pursuant to Section 5 of the Federal Road Safety Commission Act, 2007. It places on a driver of a vehicle to ensure that all passengers in the vehicle have their seat belts firmly fitted while the vehicle is in motion… There is no doubt that the Regulations are subsidiary laws which have to be obeyed. It was duly made and there is no issue as to its legitimacy. The question answered by the trial Judge was whether there was an infraction to warrant the Notice. Of course, the Appellants could in the face of a breach issue Notice of offence and also impound vehicles by which an offence was committed. See Section 10(5)H and ESEKHAIGBE V FEDERAL ROAD SAFETY COMMISSION (2014) LPELR-24388(CA)… The Appellants in seeking to overturn the findings must find in the record of appeal evidence that makes the finding of the trial Court perverse. In an attempt to do so, the Appellants relied on the evidence of the sole witness called by the Appellants and particularly when he said the person in the front seat in the Respondent’s car did not have his seat belt on and this was denied by the person who testified as CW2 and also CW1, the Respondent. Both of them explained that the passenger unbelted himself while attempting to get out of the car when the altercation started between the parties. The trial Court believed the evidence of the Claimant. The aspect not denied is the fact that the Appellants did not deny that the passenger actually came out of the car. Assuming the passenger did not have his seat belt on, should the liability of breaching the regulation be transferred from the person who was unbelted to the driver of the car who had his seat belt on? The quoted Section 10(4), the basis of the Appellants’ contention says: “Driving a vehicle not fitted with seat belt or were fitted, not wearing same while the vehicle is in motion.” I agree with the Respondent that in interpreting the above-quoted provision the words must be given its literal meaning where the words are clear…There is therefore nothing in the said provisions that makes the driver of the car responsible for the infraction of a passenger. It is merely the convenience of the 1st Appellant to want to make a driver liable because he owns or the vehicle is under his control. Criminal liability is not transferable, see what the apex Court said in PML (NIG) LTD V FRN (2017) LPELR-43480(SC) thusly: “…it will not be a valid defense in law for any person, who is alleged to have committed an offence to argue that while committing that offence he was acting as an agent of a principal since it is not a defense that is known to law. Very true; criminal liability is personal; it cannot be transferred because the mens rea or actus reus is on the accused in Court – See Akpa v State (2008) 14 NWLR (pt. 1106) 72.” Per AUGIE, J.S.C. Therefore, even if the Respondent in answer to a question under cross-examination referred to the CW2 as the offender, it cannot translate to him being the offender since the regulations did not say in case any passenger in a car found not to have his seat belt on, the person driving will be liable. Therefore, the transferred liability leading to the struggle was wrong and not supportable in law… The Appellants also relied on Regulation 58(4) of the National Road Traffic Regulations, 2004 which states as follows: “The driver of any vehicle shall ensure that all passengers in the vehicle have their seat belts firmly fitted while the vehicle is in motion.” The point at which the purported Notice of offence was issued the vehicle was not in motion. Agreed that it places the responsibility of ensuring that passengers in a vehicle have their seat belts fastened on the driver. In any case, this was not the Section relied upon by the Appellants in booking the Respondent…” Per NIMPAR, J.C.A.

20/07/2021

In the Federal High Court of Nigeria In the Abuja Judicial Division Holden at Abuja

On Wednesday, the 7th day of July, 2021

Before Their Lordships

Taiwo O. Taiwo

Judge, Federal High Court

Suit No. FHC/ABJ/CR/303/2021

Between

Folakemi Adeosun Plaintiff

And

Attorney-General of the Federation Defendant

(Judgement delivered by Honourable Taiwo O. Taiwo, J.)

Facts

The Plaintiff, a citizen of the United Kingdom with Nigerian descent, graduated from the University of East London, United Kingdom at the age of 20 years. The Plaintiff worked in the United Kingdom until the year 2003, when she came to Nigeria at the age of 36 years. She was appointed as a Commissioner for Finance in Ogun State, between the year 2011 and 2015. Thereafter, she was appointed as the Minister of Finance in 2015, a position she occupied till 2018, when it was paraded in the public space that she did not participate in the National Youth Service Corps (NYSC) Scheme, and as such, not eligible to hold an office as a Minister of the Federal Republic of Nigeria.

This rumour remained unabated, and the Plaintiff resigned from her office as the Minister of Finance.

Nonetheless, the Plaintiff’s career was impaired by the insinuations regarding her failure to participate in the NYSC Scheme, and this consistently put her at disadvantageous positions both within and outside the country. Hence, she instituted the present action by way of Originating Summons, inviting the Honourable Court for a determination of some questions. She also sought various reliefs from the court, including a Declaration that the Plaintiff, being a United Kingdom Citizen in 1989 when she graduated from the University of East London, United Kingdom at the age of 22 years, was ineligible to participate in the NYSC scheme, established by the National Youth Service Corps Act, (NYSC Act) Cap N84, Laws of the Federation of Nigeria (LFN), 2004.

Issues for Determination

The following questions were posed for determination of the court:

1.Having regard to the combined provisions of Sections 106 and 107; 192(4); 177 and 182; 65 and 66; 147(5); and 131 and 137 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which respectively prescribe the qualifications and disqualifications for the offices of a member of the House of Assembly of a State; a Commissioner in the State Executive Council; Governor of a State; member of the National Assembly; Minister in the Federal Executive Council; and the President of the Federal Republic of Nigeria, whether any Nigerian citizen is otherwise disqualified from holding any of the offices afore-listed by reason of not participating in the National Youth Service scheme, established by the NYSC Act.

2. Considering the clear provisions of Sections 200(1)(a) and 156(1)(a) of the Constitution which stipulate the qualifications membership of State Executive Bodies and Federal Executive Bodies respectively, whether any Nigerian citizen is disqualified from holding offices as a member or Chairman of any of the said bodies by reason of non-participation in the NYSC scheme, established by the NYSC Act.

3. Upon the combined reading of the provisions of Section 26 of the Constitution of the Federal Republic of Nigeria, 1979 (being the one in force in 1989), Sections 25 and 36(8) of the 1999 Constitution; and Section 6(1)(b) and (c) of the NYSC Act, whether the Plaintiff, being a citizen of the United Kingdom as at 1989, was not ineligible to participate in the NYSC Corp (as at 1989), when she graduated from the University of East London, London, United Kingdom at the age of 22 years.

Given the questions above, the Defendant raised a sole issue thus:

Whether the Plaintiff is entitled to the reliefs sought against the Defendant.

Arguments

In support of the application before the court, counsel for the Plaintiff contended that there is nothing in any of the referenced provisions of the 1999 Constitution which requires or mandates compulsory participation in the NYSC scheme, and obtaining a discharge certificate. Counsel reasoned that it is a constitutional misconception to conclude that the Plaintiff, who was born in the United Kingdom in 1967 and retains the citizenship of the United Kingdom as required in Section 28 of the 1979 constitution, and the fact that the Plaintiff lost her Nigerian citizenship immediately she attained the age of 21 years. By this fact, the Plaintiff lost the right and resultant liability accruing to a Nigerian citizen, including the right to vote and be voted for.

Conversely, the Defendant argued through his counsel that any graduate in employment in Nigeria is expected to have provided his employer in Nigeria with a discharge/exemption certificate prior to obtaining the job as obligated by the provisions of Section 12 of the NYSC Act. Counsel submitted further that by the provisions of Section 147(5) and 192(4) of the 1999 Constitution, the minimum qualification required for a Commissioner/Minister of the Federal Republic of Nigeria, is school leaving certificate. He posited that the provisions of the Constitution takes precedent over that of the NYSC Act, and that despite the fact that the Plaintiff is a graduate, there is no constitutional requirement for her to present her first degree certificate or any other certificate, including the NYSC certificate, to be appointed as a Minister. Counsel submitted that the ministerial appointment of the Plaintiff was neither illegal nor unconstitutional, even without presenting the NYSC certificate.

Court’s Judgement and Rationale

Preceding the determination of the questions posed by the Plaintiff, the court addressed the issue/stance of the Defendant that the Plaintiff did not establish a cause of action against the Defendant. The court adjudged this as a jurisdictional issue and addressed same first, before delving into resolution of the main questions/issues. His Lordship referred to the affidavit in support of the Originating Summons and decided that though the Defendant was not responsible for the resignation of the Plaintiff as a Minister, nonetheless, the issues before the court are constitutional in nature, and the court should not shy away from finding solutions to constitutional questions within the Constitution itself and any other subsidiary legislation. The Plaintiff has a constitutional and legal right to approach the court, and where there is no remedy provided either in common law or statute, the courts have been urged to create one – OMOYINMIN v OGUNJI (2008) 3 NWLR (Pt. 1075) 471.

It is the law that the proper person to be made a party/Defendant in cases relating to the interpretation of the Constitution, is the Defendant herein. Though the Plaintiff voluntarily resigned her appointment as Minister, her action does not prevent her from asking the court to determine the questions posed in the instant case, and joining the Attorney-General as a Defendant in the suit.

Going to the main issues/questions before the court, His Lordship reiterated the trite decision of courts, that where the words of the Constitution or statute are plain, clear and unambiguous, they must be give their plain, ordinary meanings as there is nothing to interpret – A-G BENDEL STATE v A-G FEDERATION (1981) 10 SC. 1.

Sections 106 and 107, 192(4); 192(4), 177 and 182; 65 and 66; 147(5); 131 and 137 of the Constitution, prescribe the qualifications for members of the House of Assembly of a State; Commissioner in a State; Governor, member of the National Assembly, Minister, Federal Executive Council and the President of the Federal Republic of Nigeria. There is nowhere in the Constitution where any Nigerian, including the Plaintiff, is disqualified from holding office by reason of non-participation in the NYSC scheme. The Constitution is supreme, and any law which provisions is inconsistent with the Constitution, is void, while the Constitution prevails. By Section 147(5) of the Constitution, a person becomes eligible to be appointed a Minister in Nigeria, if he is qualified for election as a member of the House of Representatives. Sections 65 and 66 relate to the yardstick for qualification as member of the House of Representatives, and participation in the NYSC scheme is not one of the listed grounds.

In this case, the Plaintiff was born in the United Kingdom and became citizen of the United Kingdom. Her education, up to university level, was also obtained in the United Kingdom, until she graduated in 1989 at the age of 22. If she was a citizen of Nigeria when she graduated at the age of 22, she would have been eligible to participate in the NYSC scheme upon her return to the country. However, by the time she moved to Nigeria in the year 2003, she was already 36 years old, and not eligible to participate in the NYSC scheme. To do otherwise, would have been a criminal offence. Nonetheless, the Plaintiff falls into the category of persons entitled to an exemption certificate upon restoration of her Nigerian citizenship by the 1999 Constitution, by which time she was already 30 years old. Further, the Plaintiff had also been self employed, and needed not to produce any certificate to an employer.

Regarding the provisions of Section 26 of the 1979 Constitution (which was the applicable law at the relevant time when the Plaintiff graduated), she was not a citizen of Nigeria at the time, and was not eligible to participate in the NYSC scheme. The referenced Section 26 of the 1979 Constitution has been repealed by Section 25(1)(c) of the 1999 Constitution, which provision restored the Nigerian citizenship of the Plaintiff. However, at the time the 1999 Constitution became operational, the Plaintiff was not eligible to participate in the NYSC scheme, as she was well over the required age for participation. More so, NYSC discharge certificate is not a mandatory requirement for qualification to contest, or be a member of the House of Representatives.

While the court observed that the reliefs sought by the Plaintiff were declaratory in nature, and that the Plaintiff must prove her entitlement to the declaratory reliefs sought, the court held that from the evidence before it, there was nothing to show that the Plaintiff had not proved her entitlement to the reliefs sought. His Lordship stated that, to deny the Plaintiff the reliefs will not do justice to her and her reasons for approaching the court. Thus, the court granted all the reliefs sought by the Plaintiff.

Claim Succeeds.

Representation

Chief Wole Olanipekun, SAN with Emeka Ananyi for the Plaintiff.

T.A. Gazali, SAN for the Defendant.

Reliefs in the claim Granted.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)

Be warned.
09/05/2021

Be warned.

U.B.A. PLC V. VERTEX AGRO LTD. [2020] 17 NWLR PT.1754 AT 467. On Duty on financial institution to reverse unauthorized d...
23/02/2021

U.B.A. PLC V. VERTEX AGRO LTD. [2020] 17 NWLR PT.1754 AT 467.

On Duty on financial institution to reverse unauthorized debit on customer’s account within seventy two hours of customer’s written notification -:

Summary of Facts:

The appellant and the respondent had a banker-customer relationship under which the respondent maintained a current account with the appellant. On 21st October 2016, at about 5pm, and after close of business activities, the respondent received several SMS alerts of the unauthorized withdrawal of N9,293,578.15 in installments from its account on its managing director’s cell phone with an MTN number (the only telephone number registered in respect of the account with the appellant). And the withdrawals were effected through the appellant’s online banking platform.


On receipt of the SMS, the respondent complained via phone conversation and SMS to its account officer with the appellant at about 6pm on the same day. Later, on 24th October 2016, the respondent wrote a letter to the appellant requesting the immediate reversal of the debits to its account.

Subsequently, on 10th November 2016, the respondent issued a cheque for the transfer of N8million but the cheque was dishonored by the appellant on ground that the respondent did not have sufficient money in its account to cover the cheque. By a letter dated 11th November 2016, the respondent’s solicitors demanded the return of the money withdrawn from the respondent’s account and gave notice of the respondent’s intention to sue if the appellant failed to comply with the demand. In response, the appellant wrote a letter dated 22th November 2016, and on 26th November 2016, the appellant was served with the originating processes of the respondent’s Suit filed on 1st November 2016.

The respondent averred that the appellant failed in its duty to release the respondent’s money upon the respondent’s demand. The respondent also stated that the unauthorized withdrawals resulted from the appellant’s negligence because the respondent had never used the hardware token device issued to it by the appellant through which the unauthorized withdrawals were made and that its managing director never received any One Time Pin (OTP) SMS on the hardware token device or on his designated telephone number in respect of the unauthorized transactions.

The appellant admitted the loss or unauthorized withdrawal of N9,293,578.15 from the respondent’s current account. The appellant also admitted that the hardware token device it issued to the respondent’s managing director and which was linked to the respondent’s internet bank platform with the appellant was never used by the respondent to withdraw any money from its account. The appellant, however, stated that the withdrawals were made using software token because the respondent’s managing director compromised his e-mail profile and thereby gave the perpetrators of the fraud access to his e-mail where they accessed the U-token activation OTP and password either through physical access or social engineering.

Furthermore, the appellant pleaded that it was able to recover N4,692,097 of the amount withdrawn and would credit same to the respondent’s account. Relying on an indemnity and the exclusion clauses in forms signed by the respondent, the appellant stated that it was not liable for the balance unrecovered amount. The appellant also stated that the respondent did not have sufficient money in its account when it issued the cheque for N8million hence the cheque was dishonored.

The respondent filed a reply to the appellant’s statement of defence by which it gave notice that it would challenge the enforceability of the indemnity pleaded by the appellant as being against public policy. Four witnesses testified for the respondent and they tendered documentary evidence.

PW3, an Inspector of Police, gave unchallenged evidence that he investigated the appellant’s complaint against one Ejike Nwabara in respect of the withdrawals from the respondent’s account. PW3 said Ejike Nwabara admitted having an account with the appellant but denied knowing the respondent. PW3 also said the appellant failed to give the police evidence to aid its investigation and prosecution of Ejike Nwabara so he was released from detention.

PW4, a fraud analyst and employee of MTN Nigeria Ltd, gave expert evidence. He testified unchallenged and uncontradicted that the respondent’s mobile phone number was taken off the appellant’s data base at the time the transactions were done to avoid the identification of the person making the withdrawals and to avoid detection of the transactions at the time they were being done. He also testified about a similar case in another bank which showed that transaction was done by the bank’s employees.

DWI testified under cross examination that the unauthorized withdrawals were made by software token and not the hardware token device issued to the respondent’s managing director by the appellant. DWI confirmed that a review of the hardware token showed it was never used by the respondent: DW1 further testified that the appellant laid a criminal complaint to the police which resulted in the arrest of one Ejike Nwabara, but did not show what the appellant stated in its criminal complaint to the police. The appellant, however, did not show that the respondent’s U-direct token activation OTP and password was accessed by the fraudsters either through physical access or social engineering and failed to prove that they used that access to make the unauthorized withdrawals from the respondent’s account with the appellant. The appellant also adduced evidence that the respondent had only N5,058,574.24 in its account on 10th November 2016 after the unauthorized withdrawal of N9,293,578.15 when it presented its cheque of N8million hence the cheque was dishonored.

The documents tendered in evidence included exhibit D – the respondent’s solicitor’s letter of demand; exhibit F- the respondent’s reply to the letter of demand; exhibit H – the terms of the online/ internet banking relationship between the parties entered into in 2008; exhibit L – an indemnity in respect of NIBSS payment system executed in 2015, but which did not incorporate exhibit H executed in 2008 expressly by reference; and Exhibit K – which contained exclusion clauses.

In its judgment, the trial court expunged exhibit F from its record on ground that it was written when litigation was anticipated. The trial court relied on the Guidelines on Electronic Banking in Nigeria issued in 2003 under the Central Bank of Nigeria (Establishment) Act though it was not specifically pleaded by either party. The trial court found and held that the appellant was negligent in allowing the withdrawal from the respondent’s account and acted wrongfully in dishonoring the respondent’s cheque. So, the trial court granted the respondent’s claims which included N1 million claimed as fee paid to counsel and N500,000 as damages for the appellant’s wrongful dishonor of the respondent’s cheque.

The appellant appealed to the Court of Appeal. The respondent also cross-appealed on grounds that the Cyber Crimes (Prohibition, Prevention, Etc.) Act 2015 prescribed a minimum of N5million damages for unauthorized debits by a bank on its customer’s account; and that damages awarded to it for the dishonor of its cheque was low.

Held: Unanimously allowing the appeal in part and dismissing the cross-appeal.

The following issues were raised and determined by the Court of Appeal:

(a) On Duty on financial institution to reverse unauthorized debit on customer’s account within seventy two hours of customer’s written notification-
Section 37(3) of the Cyber Crimes (Prohibition, Prevention, Etc.) Act 2015 states that a financial institution that makes an unauthorized debit on a customer’s account shall, upon written notification by the customer, provide clear legal authorization for such debit to the customer or reverse such debit within 72 hours and that any financial institution that fails to reverse such debit within 72 hours, commits an offence and is liable on conviction to restitution of the debit and a fine of N5,000,000. In this case, by virtue of section 37(3) of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015, the appellant was bound to provide clear legal authorization for the unauthorized debits or reverse the unauthorized debits within 72 hours after it was informed by the managing director of the respondent on 21st October 2016 or after it received the formal letter from the respondent on 24th October 2016 complaining about the unauthorized debits. The appellant did not provide any clear authorization of the debits within 72 hours of receipt of the respondent’s letter. Therefore, the appellant was bound to reverse the debits within the same 72 hours.

(b) On Punishment for failure by financial institution to provide legal authorization for debit on customer’s account or reverse same-
Section 37(3) of the Cyber Crimes (Prohibition, Prevention, Etc.) Act 2015 makes a financial institution’s failure to provide clear authorization of an unauthorized debit or reverse the debit within 72 hours of being notified of the debit by the customer an offence punishable by a fine of N5million. The provision does not prescribe any general damages that the court must award for such wrongful debits. The N5million mentioned in the provision of the section is the fine it prescribes as punishment for the offence created therein.

On whether fee paid to counsel can be claimed as special damages-
An award of cost of attorney’s fee as special damages for breach of contract runs contrary to the legally recognized principle for the award of damages for breach of contract. In this case, the trial court erred when it awarded N1 million as cost of the respondent’s attorney’s fee for prosecuting this suit as special damages to the respondent for breach of the banker-customer contract.

3a. On When letter written by person interested in anticipated proceedings should be admitted in evidence-
A letter written as a reply to a letter of demand and intention to sue if the demand was not complied with is admissible in evidence. This is so because where a person receives but fails to respond to a business letter which by the nature of its content requires a response or a refutal of some sort, the person will be deemed to have admitted the contents of the letter. In this case, it was the respondent’s letter (exhibit D) that evoked the appellant’s reply letter (exhibit F). The appellant was bound by law to respond to exhibit D if it disputed the facts and claims therein and if it failed to so respond, its lack of response would have been deemed an admission of the contents of exhibit D.

(b) On when letter written by person interested in anticipated proceedings should be admitted in evidence-
Equity follows the law and is applied to ameliorate the rigidity and inflexibility of the law. In this case, though exhibit F was written by the appellant, a person interested, when the respondent’s suit was anticipated, it would be inequitable to exclude the exhibit under section 83(3) of the Evidence Act, which renders inadmissible any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact the statement might tend to establish.
This is because exhibit F was written in response to the respondent’s letter (exhibit D), which had been admitted in evidence and which required a response from the appellant so the appellant would not be deemed to have admitted the contents of exhibit D as correct.

On When appellate court will not interfere with award of damages by trial court-
Appellate court will not interfere with an award of general damages unless it is shown that the trial court did not properly exercise its discretion in making the award. In this court, the respondent did not show why it considered the sum of N500,000 awarded as general damages by the trial court as too low. It was not enough for the respondent to merely assert that the amount awarded was too low. The respondent who so asserted ought to have demonstrated by reference to the facts of the case that the amount was indeed too low, but it failed to show that the trial court did not exercise its discretion in making the award judicially and judiciously.

On Purpose of award of costs-
The purpose for the award of costs is to compensate the successful party for some of the loss incurred in litigation.

On when exclusion or exemption clause in contract is enforceable-
For an exclusion or exemption clause to be enforceable and applicable, the word conveying the exemption must be clear, specific and unambiguous and must exactly cover the liability, which is sought to be excluded. In this case, the indemnity relied on by the appellant did not cover the liability of the appellant to refund the respondent’s money withdrawn without the respondent’s knowledge and authority from its account in the custody of the appellant. The liabilities covered by the indemnity were specifically listed therein, and it did not relieve the bank from liability for unauthorized withdrawals or dealings with customers’ funds or for breach of its duty to manage and maintain the customer’s account, protecting and securing the customers funds therein with due care and diligence.

On when burden of proof shifts to defendant in civil cases-
By virtue of section 133(1) and (2) of the Evidence Act, 2011, where a claimant establishes his case as pleaded, the evidential burden shifts to the defendant to rebut the case presented by the claimant. In this case, the respondent established its case that the withdrawals were unauthorized as pleaded. The evidential burden then shifted to the appellant to rebut the case presented by the respondent by showing that it was not responsible for the loss or unauthorized withdrawal of N9,293,578.15 from the respondent’s account in its custody. But the appellant failed to show how and why the money was withdrawn or removed from the respondent’s account without the prior knowledge and authorization of the respondent.
In the circumstance, the trial court rightly decided that the appellant was negligent in the maintenance of the respondent’s account with it on the basis that the appellant breached its duty of care to the respondent to ensure that the respondent’s money in its custody and control were safe and secure with it by allowing the unauthorized withdrawal of the respondent’s money in its custody.

On Principles guiding variation of contract-
Variation of contract involves a definite alteration of the contractual obligations by mutual agreement of both parties. Variation is analogous to the entry of a new contract. The requirements of offer, acceptance and consideration are thus imposed and the parties must have acted in some way to their benefit or detriment in either agreeing the variation or as a result of the variation. Where parties enter into an agreement and subsequently decide to introduce new terms, they can only do so by specific reference to the earlier agreement to the effect that the latter agreement has introduced new terms thereof. In this case, exhibit H (the foundation of the online/internet banking relationship between the parties entered into in 2008 specifically with respect of U-Direct online or internet banking platform did not contain any indemnity clause.

The subsequent agreements which contained the purported indemnities clause did not expressly or remotely mention exhibit H. From the totality of the pleaded facts and the evidence before the court, the respondent simply demonstrated that the indemnity which was an exclusion clause the appellant relied on to exculpate itself from liability were not incorporated in the agreement giving rise to the present cause of action which was exhibit H.
DWI’s testimony was direct and unequivocal. He also confirmed that the Hardware token-exhibit G was never utilized by the respondent. Exhibit L which was an indemnity with respect of NIPPS executed in 2015, 7 years after the online banking relationship ensued, did not incorporate exhibit H executed in 2008 expressly by reference hence could not fall within its contemplation. If the appellant intended the indemnity to bind exhibit H which was founded on the online banking, it would have expressly mentioned same in exhibit L or exhibit K.

On whether damages awardable of banker’s wrongful dishonor of customer’s cheque-
Damages are awardable for a bank’s wrongful dishonor of its customer’s cheque. In this case, the trial court was right to have awarded general damages for the wrong dishonor of the respondent’s cheque by the appellant.

On the factors to be considered by the court in awarding costs. The following factors are to be considered by the trial court in awarding costs.
The summons fees paid.
The duration of the case.
The number of witnesses called by the party in victory.

The vexatious or frivolous nature of the action or defence of the party failed in the litigation.
The cost of legal representation.
The monetary value at the time of incurring the expenses; and
The value and purchasing power of the currency of award at the time of the award.

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