IN THE COURT OF APPEAL OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO: HC/LAG/CV/001/23

APPEAL NO: CA/LAG/001/23

BETWEEN:

CHIEF IBRAHIM --------------------------------------------------------- APPELLANT

AND

STROLEX BANK --------------------------------------------------------- RESPONDENT

APPELLANT’S BRIEF OF ARGUMENT

DATED 22ND DAY OF AUGUST , 2023

SETTLED BY:

_______________________

T.D Amao
M.J Abdulsalam
A.A Sharaf
K.A Omoniyi
T.K Alabi
Counsel for the Appellant,
Emirate Chambers,
Opposite Faculty of Law,
Ahmadu Bello University,
Zaria, Kaduna State.
FOR SERVICE:
The Respondent,
Strolex Bank,
Off Ajaku Road,
Apapa,
Lagos State.
C/O His Counsel.

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 IN THE COURT OF APPEAL OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO: HC/LAG/CV/001/23

APPEAL NO: CA/LAG/001/23

BETWEEN:

CHIEF IBRAHIM --------------------------------------------------------- APPELLANT

AND

STROLEX BANK --------------------------------------------------------- RESPONDENT

TABLE OF CONTENT

S/N CONTENT PAGE NUMBER

1 COVER PAGE 1

2 TABLE OF CONTENT 2

3 INTRODUCTION 3

4 STATEMENT OF FACT 3-4

5 ISSUES FOR DETERMINATION 4

6 LEGAL ARGUMENT 4-17

7 CONCLUSION 17-18

8 LIST OF AUTHORITIES 19-21

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1.0 INTRODUCTION
1.1 This is an appeal against the decision of the high court of Lagos State, delivered on the 10th
day of August, 2023 by his Lordship, Hon. Justice M.O Zubair.
1.2 The appellant, being dissatisfied with the said decision, appeals same to this honourable court
vide a notice of appeal dated 20th day of August, 2023.
1.3 Hence, this appellant’s brief of argument in support of this appeal.
2.0 STATEMENT OF RELEVANT FACT
2.1 The appellant, a semi-illiterate, is a commercial trader who engages in high volume of trade
daily in Kaduna. The respondent is a full service digital bank microfinance bank incorporated
and carrying out banking activities in Nigeria, and duly licenced by the Central Bank of
Nigeria, with its only physical branch in Lagos state.
2.2 Due to the seamless banking capability of the respondent, especially in online transfers, the
Appellant opted to open a bank account with the respondent. The account opening was done
virtually on the respondent’s bank app. Part of the registration requirement is the subscription
of the Appellant to certain terms and conditions which are scarcely readable and accompanied
with an option to skip and accept the terms and condition.
2.3 The Appellant, despite being a semi-illiterate conceded to these terms and conditions. One of
the terms stipulates that any dispute arising out of the agreement between will be subjected to
mediation with the respondent’s customer care department.
2.4 Unfortunately, on the 12th day of June, 2022, the respondent’s app experienced a downtime
which lasted five days. On the first day, the Appellant suffered a loss of three million because
he was unable to transfer the money he had with the respondent’s bank.
2.5 On the second day, the Appellant suffered a 5million naira loss as a result of his inability to
either receive or transfer money in his account. On the third day, the Appellant’s account
displayed a balance of #0.00 which left the Appellant bewildered of where all his money had
gone.
2.6 Coincidentally, a number, disguised as the representative of the respondent, messaged the
Appellant to request for his login details into his bank app. Out of despair, the Appellant
surrendered his details just to see that the issue bedevilling him was rectified. Unknown to the
Appellant that he had surrendered his details to fraudsters, he noticed that thirty three million
naira had been withdrawn in his account when the bank app was on downtime.

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2.7 After the downtime, it came to the fore that the Respondent had communicated with its
customers on twitter as to why their accounts were showing #0.00. More precisely, the
Respondent warned all its customer not to release their details to anyone disguising to be
representative of the bank because they have received reports that lot of customer’s money has
been swindled through this dubious means.
2.8 Upon notice that his account balance was thirty three million short, the Appellant walked up
to the respondent’s physical premises in Lagos to lodge a complaint. On getting there, the
respondent’s gateman refused the Appellant entry and stated authoritatively that the
Respondent had no remedy to proffer to the Appellant’s issue.
2.9 Miffed with the conduct and statement of the Respondent as well as its gateman, the Appellant
approached the lower court, the high court of Lagos State, to seek for certain reliefs.
2.10 Frivolously, the respondent raised a preliminary objection challenging the jurisdiction of
the lower court to entertain the matter because the mediation agreement subscribed to by the
appellant has not been complied with.
2.11 The lower court while upholding the preliminary objection also dismissed all the claims of
the appellant. Peeved with the decision of the lower, the appellant has appealed the said
decision.
2.12 Hence, this appellant brief of argument.
3.0 ISSUES FOR DETERMINATION
3.1 For the kind and just determination of this appeal, the appellant has formulated three issues for
resolution by this honourable court to wit;
i. WHETHER the lower Court Had Jurisdiction to entertain this Matter when it was
before it?
ii. WHETHER the unreasonable downtime of the Respondent’s app constitutes a
breach of an implied term in the banker-customer relationship and same interfered
with the Appellant’s economic interest?
iii. WHETHER the respondent was negligent in managing the Appellant’s Account?
iv. WHETHER the appellant is entitled to the special damages sought?
4.0 LEGAL ARGUMENT ON ISSUE FOR DETERMINATION NUMBER ONE
4.1 This issue bothers on whether the lower court had jurisdiction to entertain this matter. The
respondent contends that the lower court lacks jurisdiction to entertain this matter premise on

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 the fact that the purported mediation clause stipulated in the “terms and condition” of opening
an account with the respondent has not been honoured. It is the appellant’s submission that the
respondent’s contention is ill-founded and the court should discountenance same as the lower
court has the requisite jurisdiction to adjudicate over this matter.
4.2 Understandably my lords, where parties agree to explore alternative dispute resolution
mechanism – of which mediation is inclusive – before initiating a proceeding in the court of
law, such agreement ousts the jurisdiction of the court pending its compliance. This assertion
is solidified by the holding of the penultimate court in BUREAU OF PUBLIC
ENTERPRISES V. ASSURANCE BANK PLC & ORS (2009) LPELR-CA/A/172/M/106
(P. 19, paras. C-D) that:

“It is noteworthy to point out that parties cannot by their own agreement oust the
jurisdiction of the court, save in cases of presence of arbitration clause in the contract
agreement or other alternative dispute resolution mechanism”

4.3 In this case, the respondent purportedly circumscribed a mediation clause in the ‘terms and
condition’ of opening an account with it, which the appellant assented to while opening his
account with the respondent. Notwithstanding the cession of the appellant to these ‘terms and
conditions’, we respectfully posit that the entrenchments of the ‘terms and conditions’ –
particularly, the mediation clause – is not binding on the appellant. Thus, the agreement does
not oust the jurisdiction of this court to entertain this matter.
4.4 The above postulation is grounded on the fact that the respondent deceitfully and
manipulatively procured the appellant to assent to the ‘terms and conditions’. As established
before this court, the ‘terms and conditions’ which the appellant consented to is ‘a 50 page
document in scarcely readable font size which is accessed when the user clicks “read full
terms and condition”; the user also have an option to skip reading the terms and conditions
and just accept it’.
4.5 The appellant respectfully submits that the act of the respondent to have made the terms and
conditions ‘scarcely readable’ and ‘not easily accessible’ with an option to ‘skip and accept’
is a manipulative and deceitful way to force any person, with the respondent making no
exception, contracting with them to accede to the terms and conditions. It is settled law that
where “deceit and manipulation” are established in the conclusion of an agreement, the plea
of “Non Est Factum” will be available to the victim of the agreement. This assertion is
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 cemented by the court of appeal decision in the case of FHOMO (NIG) LTD V. ZENITH
BANK (2016) LPELR-CA/L/50/2015 (P.43, Paras. A-C) where it was held that:

“the plea of non est factum was not available to the appellant as they bothered on how
to raise the plea of non est factum and when it has been established. Certain plea are
required to elements pleaded; some of which are fraud, misrepresentation, mistake,
deceit and manipulation which must be backed by pleadings and evidence”
(underlined mine)

4.6 It flows from the above exposition that the appellant can successfully plead ‘non est factum’
in the circumstance of this case since he was deceitfully and manipulatively conned to assent
to the terms and condition that has a mediation clause embedded in it.
4.7 Thus, applying the plea of ‘non est factum’ to the ‘terms and conditions’ assented to by the
appellant, the terms and condition becomes invalid and the mediation clause embedded in it
becomes non-binding as declared by Byles J in FOSTER V. MACKINON (1869) L.R.4 C.P
704 in the following words:

“the legal effect of defect on the document… it is invalid not merely on the ground on
fraud, where fraud exist, but on the ground that the mind of the signer did not
accompany the signature; in other words that he never intended to sign and therefore
in contemplation of law never did sign, the contract to which his name is appended…”

4.8 On this point, the appellant submits that, on the application of the plea of non est factum to the
terms and condition assented to by the appellant, the terms and condition as well as the
mediation clause becomes non-binding on the appellant and consequently, this court has
jurisdiction to entertain this instant case.
4.9 Aside from the plea of non est factum which invalidates the mediation clause embedded in the
terms and condition, the fact that the appellant is a ‘semi-illiterate’ as established before this
court renders the ‘terms and conditions’ assented to by the appellant non-binding. In
OTITOJU V. GOVERNOR OF ONDO STATE & ORS (1994) LPELR-SC.269/1990
(P.13, paras. E-G), an illiterate was defined as follow:

“a person who is unable to read with understanding and to express his thoughts by
writing, in the language used in the document made or prepared on his behalf”

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4.10 Also, in ANAEZE V. ANYASO (1993) LPELR – 480 (SC) (Pg 18-20, Paras 42-44), the
apex court stated that: ‘the mere fact that a person puts down, scribbles or even signs a
document does not necessarily confer on him the status of literacy.’ In light of these
pronouncements by the apex court on who an illiterate is, we submit that the appellant being
“semi-illiterate” does not confer the status of literacy on him. Hence, the appellant enjoys the
protection available to an illiterate.
4.11 Moving forward my lords, by section 1(b) of the Lagos State Illiterate Protection Law,
prior to the signing of a document by an illiterate, the document must be read over and
explained in the language understood by the illiterate person. In this case, it is inferable that
the appellant was not afforded this protection before he assented to the ‘terms and conditions’
that a mediation clause is circumscribed in. More specifically, the appellant, without any aid,
unilaterally consented to the terms and conditions. Thereby, occasioning to a non-compliance
with the protection available to the appellant, being an illiterate.
4.12 In the case of GIRGIRI V. ELF MARKETING (NIG) LTD (1997) 2 NWLR (487) 368
p377-378 paras. H-A, where there was non-compliance with the protection afforded an
illiterate as it is in this case, the court of appeal held that:

“If the plaintiff/appellant is entitled to the protection afforded under the illiterate
protection law on an illiterate, arising from non-compliance with section 2 of the law,
it follows that he would not be bound by all the contents of the sublease agreement
including the provision dealing with reference to arbitration.”

4.13 My lords, importing the above holding to this case presupposes that the appellant, being a
beneficiary of the illiterate protection, will not be bound by the terms and conditions assented
to by him as well as the mediation clause encapsulated in the terms and condition, since the
protection afforded to the appellant was not complied with.
4.14 In purview of the above exposition, the appellant further submits that this court has
jurisdiction to entertain this matter since the non-compliance with the illiterate protection law
invalidates the mediation clause embedded in the terms and conditions.
4.15 Alternatively, if this court finds the mediation clause as binding on the appellant, we
vehemently submit that the respondent has waived its right mediation. Thus, conferring
jurisdiction on this court to entertain this matter.

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4.16 Ostensible to this noble court is that the appellant approached the respondent in good faith
for possible resolution of the nemesis that befell him. However, on getting to the respondent’s
premises, a gateman, who is to be deemed as an employee of the respondent, ‘authoritatively’
told the appellant that the respondent has no remedy to provide for him nor will they entertain
him. The gateman further stated that the respondent drove people with similar complaint away.
Thereafter, the gateman drove the appellant away from the respondent’s premises.
4.17 Irrefutably my lords, the respondent is liable for the act of the gateman due to the
employer/employee relationship that exists between them as affirmed by the apex court in the
case of IYERE V. BENDEL FEED AND FLOUR MILL LTD (2008) LPELR-
SC.309/2002 (P.31, Paras. A-G) in the following words:

“the general disposition of the law is that an employer is liable for the wrongful acts
of his employee authorised by him or for wrongful modes of doing authorised acts if
the act is one which, if lawful, would have fallen within the scope of the employee’s
employment, as being reasonably necessary for the discharge of his duties or the
preservation of the employer’s interests or property, or otherwise incidental to the
purposes of his employment…”

4.18 The import of the above exposition is that the respondent is responsible for driving away
the appellant away from its premises which signifies nothing other than the unwillingness of
the respondent to mediate the grievance of the appellant. In this kind of situation, the principle
of waiver as espoused in THE VESSEL MT. SEA TIGER V. A.S.M. (HK) LTD (2020) 14
NWLR (Pt. 1745) 418 (CA) by the court of appeal will be applied to the mediation clause
circumscribed in the terms and conditions:

“the principle or concept of waiver in law is that if one party in a transaction by his
conduct or action/inaction leads another to believe that the strict rights arising under
a transaction or contract will not be insisted upon, intending that the other should act
on that belief and he does act on it, then the first party will not afterwards be allowed
to insist on the strict rights…”

4.19 For further clarification and certainty of the law, the apex court also stated on the principle
of waiver in the case of NPA V. AMINU IBRAHIM & CO. & ANOR (2018) LPELR-
SC.218/2010 (Pp. 64-66, Paras F-D) as follow:

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 “… if therefore, having full knowledge of the rights, interests, profits or benefits
conferred upon or accruing to him by and under the law, but he intentionally decides
to give up all these, or some of them, he cannot be heard to complain afterwards that
he has not been permitted to the exercise of his rights… he should be held to have
waived those rights…”

4.20 Agreeably my lords, applying the above holding of the apex court to this case, one fact
becomes limpid: the respondent has waived his right to mediation and consequently, the
argument that this court lacks jurisdiction as a result of an abandoned right to mediation is not
tenable.
4.21 On the strength of the above argument, the appellant urges this court to refuse the objection
of the respondent that this court lacks jurisdiction to entertain this case premise on the
mediation clause in the ‘terms and condition’ assented to by the appellant. Reason being that;
(i) the mediation clause is invalidated by the principle of non est factum and non-compliance
with the illiterate protection law and; (ii) if the court finds the mediation as valid, the
respondent has waived his right to mediation. Thereby, conferring jurisdiction on this court.
5.0 LEGAL ARGUMENT ON ISSUE FOR DETERMINATION NUMBER TWO
5.1 The tenor of this issue is whether the appellant’s economic interest was interfered with by the
unreasonable downtime of the respondent’s banking app. We submit in the affirmative that the
economic interest of the appellant was interfere with by the unreasonable downtime of the
respondent’s app and we urge this court to so hold in purview of the succeeding argument.
5.2 Foremost, it is imperative for us to bring to the fore that there exist an implied term in the
banker-customer relationship between the appellant and the respondent. For this court to
satisfactorily resolve this issue in our favour, we will also accentuate how the unreasonable
downtime of the respondent’s bank app constitute a breach of an implied term in the banker-
customer relationship between the appellant and the respondent. Thereafter, we will disclose
how the breach of this banker-customer relationship interfered with the appellant’s economic
interest.
5.3.0 THE IMPLIED TERM IN THE RELATIONSHIP BETWEEN THE APPELLANT
AND THE RESPONDENT
5.3.1 The position of the law is clear on the nature of a banker-customer relationship. A banker-
customer relationship is fiduciary as well as contractual. On the contractual nature of a banker-

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 customer relationship, the apex court reiterated this position in the case of ALLIED BANK
OF NIGERIA LTD. V. AKUBUEZE (1997) LPELR-SC.80/1995 (P.48, paras. B-C) thus:

“It is trite that the relationship between a banker and its customer is founded
on simple contract”

5.3.2 The court of appeal further espoused the nature of contract between a bank and its
customer, in the case of FIDELITY BANK V. ONWUKA (2017) LPELR-CA/E/661/2013
(Pp. 39-41, Paras. E-F), as follow:
“The nature of the banker and customer relationship is that of a contract of debtor
creditor. The position becomes clearer when the customer asks for his money. As a
result of an implied undertaking by the banker to repay the customer all or part of
such deposit, the banker is a debtor for an amount deposited. If a valid repayment
demand of the customer is not met by the banker, the customer may bring an action
against it for breach of contract.”
5.3.3 Invariably my lords, the bank-customer relationship being a contractual one is guided by
the terms and conditions which both parties stipulates and must fulfil or be guilty of a breach.
See; INTEGRATED TIMBER LTD. V. UBN PLC. [2006] ALL FWR (PT. 32) 1792 SC.
5.3.4 Aside the express terms stipulated in the contract to guide the relationship between a bank
and its customer, it is inferable that other terms guiding a debtor and creditor relationship also
applies to the contract between a bank and its customer. This assertion was laid down in the
locus clasicus English case of FOLEY V. HILL (1848) 2H LC28, where the house of lords
held that: a banker-customer relationship is in effect a debtor-creditor relationship where the
banker is the debtor and the customer is the creditor of which the banker undertakes to pay to
the customer upon demand such an amount standing to the credit of the customer.
5.3.5 Pursuant to the above authority, we vehemently posit before this noble court that one of
such terms implied to the contract between a banker and a customer is that the banker
undertakes to pay the customer upon request. This postulation is solidified by the holding of
the supreme court in SANI ABACHA FOUNDATION FOR PEACE AND UNITY V.
UNITED BANK FOR AFRICA PLC (2010) JELR 57800 (SC), where the apex court cited
with approval the decision in R. V. OKON (1962) LCN/1015 (SC) that:

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 “Where money is paid by a customer into the bank, there is a contract between the
banker and the customer in which the banker receives the money as a loan from the
customer against the promise by the banker to honour the customer’s cheque or other
orders of the customer.” (Underline mine)

5.3.6 Consequent upon the above my lords, we submit that there exist an implied term in the
relationship between the appellant and the respondent in this case that; the respondent will
repay the amount due to the appellant upon request by the appellant.
5.4.0 THERE WAS BREACH OF THE IMPLIED TERM BETWEEN THE APPELLANT
AND THE RESPONDENT BY THE RESPONDENT
5.4.1 Flowing from the above exposition, it is therefore clear that all banker-customer
relationships contain an implied term that the bank will pay the customer whatever sum he has
to his credit upon demand by the customer or his authorized agent. Any failure by the bank to
do credit the customer upon demand amounts to a breach of the term.
5.4.2 We submit that demand for repayment by a bank can be made by the customer through
several ways; it could be through a ‘cheque’ or, as is common recent time days due to the
advancement of technology, through ‘Automated Teller Machines (ATMs)’ and mobile
transactions ‘using bank apps’.
5.4.3 Regardless of the mode of making the demand, the law is settled that once the demand has
been made, a bank, being the debtor, has a duty to pay the amount requested by the customer,
being the creditor. This assertion is fortified by court of appeal’s holding in MUOMAH V.
ENTERPRISE BANK LTD (2015) LPELR-CA/L/338/2012 (Pp. 18-20, paras C-B) thus;

“When a customer whose account has money makes a demand on the bank, it must
comply because it is a debtor and if the bank fails to pay the creditor is entitled to sue
for the recovery of the amount which can be said to have arisen from the date of
failure to effect payment”

5.4.4 In the circumstance of this case, the Appellant is a customer of the Respondent bank and
he made several demands for sums of money to his credit via the Respondent bank’s app but
he was unable to access his money due to a downtime of the app. We posit that the failure of
the Respondent bank to pay the sums of money demanded by the Appellant through their app
in furtherance of his business purposes is a gross violation of the implied terms of the contract.

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5.5.0 HOW THE BREACH OF THE IMPLIED TERM AFFECTED THE APPELLANT
ECONOMIC INTEREST
5.5.1 Owing to the Respondent’s breach – i.e. failure to deliver up payment upon request by the
appellant, the Appellant’s economic interests were interfered with due to the enormous
economic loses that he suffered.
5.5.2 For clarity, the Respondent’s bank app was on a downtime for five consecutive days and
its impact was felt by the Appellant who could not carry on his business as usual because of
lack of access to his credit deposited in the Respondent bank. On the first day alone, he incurred
a loss of about three million naira (#3,000,000.00) when the bank failed to deliver up his
money upon demand which was to be used to purchase stock for trade.
5.5.3 On the second day, not only could he not retrieve his money upon demand, he was also
unable to deposit money with the respondent. As a result, he incurred further loss of five
million naira (#5,000,000.00). Aside these two event, the Appellant suffered greater losses
for the next three days that the bank app remained on a downtime.
5.5.4 In light of the above exposition, we submit that the respondent’s breach of an implied term
in the relationship between the appellant and the respondent interfered with the appellant’s
economic interest.
6.0 LEGAL ARGUMENT ON ISSUE FOR DETERMINATION NUMBER THREE (3)
6.1 The centerpiece of this issue is to seek this court resolution on the question of whether or not
the Respondent in this instant case was negligent in handling the account of the Appellant. We
vehemently answer the question that ensues from this issue in the affirmative and urge this
honorable court of justice to so hold based on the strength of the legal argument canvassed
below.
6.2 Before accentuating the standpoints from which we urge this court to hold that the respondent
was negligent in managing the Appellant’s account, it is imperative to abreast this court the
meaning of the term negligence. The Court of Appeal, in the case of JWAN V ECOBANK
(NIG) PLC (2021) 10 NWLR (PT.1785) 449 (p.482, para. D) defined the term Negligence
as follow;

“Negligence is the breach of a legal duty to take care owed by the respondent, which
results in damage to the plaintiff.”

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6.3 It flows from the above definition that for one to be negligent, three things must exist
cumulatively: (i) existence of duty of care; (ii) breach of duty of care and; (iii) damage to the
plaintiff. See; ANYAH V. IMOH CONCORDE HOTELS LTD. (2002) LPELR-
SC.175/1995 (P.17, Parras. C-F) & U.T.B NIG. V. OZOEMENA (2007) 1 SC (t. 11) 211
at 227-229 Line 20-15. In lieu of the above exposition, the appellant will satisfy this court of
the ubiquity of the above mentioned ingredients of negligence in the circumstance of this case.
6.4.0 THERE EXISTS A DUTY OF CARE BETWEEN THE APPELLANT AND THE
RESPONDENT
6.4.1 The apex court commented on what duty of care connote in the case of NEPA V AUWAL
(2023) 6 NWLR (PT 1879) 1 (p. 37, paras .C) as follows;
“A duty of care is a legal obligation that is imposed on an individual or an organization
requiring adherence to a standard of reasonable care while performing any act that
could possibly harm others… Thus, duty of care is the legal and moral obligation to
safeguard others from harm while they are in your care, using your services or exposed
to your activities.” (Emphasis Ours).
6.4.2 It is settled that the respondent, being a bank, owes its customers – of which the appellant
is inclusive – a duty of care by virtue of the banker-customer relationship that exists between
them: particularly, in connection with the funds of the appellant that resides with the
respondent. This settled position was reechoed by the court of appeal in the case of ZENITH
BANK V. ATO PROPERTIES LTD (2019) LPELR-CA/85/2017 (Pp. 42-55, Paras. B-A)
in the following words:
“…when it comes to the relationship between a bank and its customer, or whoever is
having a connection with his funds with the bank, it is settled law that generally a
bank in its dealing with its customers owes them a duty of care and thus negligence if
proved is a ground for liability against a bank by its customer… negligence will arise
where the bank, breaches the implied duty to observe standard expected of a
reasonable banker in respect of dealings with customer’s fund…”
6.4.3 From the above exposition, it is limpid that the respondent herein owes a duty of care to
the appellant in respect of his funds with the respondent bank.
6.5.0 THE DUTY OF CARE BETWEEN THE PARTIES HEREIN WAS BREACHED BY
THE RESPONDENT IN THIS CASE

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6.5.1 Having established that there exists a duty of care between the appellant and the
respondent, we will proceed to ascertain before this court that this duty was breached by the
respondent. To determine whether the respondent was in breach of its duty, the ‘reasonable
man test’ laid down by Alderson B in BLYTH V. BIRMINGHAM WATERWORKS CO
(1856) 11 Ex. 781 at 784, is applied, in the following words:
“Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do”
6.5.2 In light of the afore-stated my lords, the respondent will be in breach of the duty owed to
the appellant if it had done something a fellow bank in its situation would not have done or did
not do something a fellow bank in its situation would have done.
6.5.3 In this case, a total sum of 33million was swindled from the appellant’s account while the
respondent’s bank was having a down time. Thereby, occasioning to a breach of the
respondent’s duty to take care of the appellant’s money. During the downtime, when the
appellant money was swindled, the respondent only updated its customers of the imminent
fraud perpetrated by hackers that has befell other customers through its twitter handle. It is the
submission of the appellant this act fell below the standard any other bank, in the respondent’s
situation, would have employed.
6.5.4 The above submission is grounded on the fact that the appellant, while opening an account
with the respondent, had consented to receive Text (SMS), email and push notifications from
the respondent. Intuitively, the respondent ought to have intimated the appellant of the
imminent danger faced by other customers in the hands of hackers through this prescribed
means stipulated in the agreement between them and not on its twitter account.
6.5.5 The court of appeal had stated in the case of FBN PLC V BANJO (2015) 5 NWLR (PT.
1452) 253 that:

“There is a fiduciary relationship between a banker and its customer. The banker
manages money and all the agreed banking transactions on behalf of the customer. The
banker must exercise a standard of care in such management activity imposed by law or
contract……..”

6.5.6 Invariably my lords, the failure of the respondent to inform the appellant of the imminent
danger vide the agreed means amounts to breach of standard of care stipulated by the contract
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 between them. On this point, the appellant submits that the respondent is in breach of the duty
of care owed to him.
6.5.7 Also, before the respondent opted for another means apart from the one prescribed in the
agreement between it and the appellant, the respondent ought to have taken cognizance of the
fact that not all its customers are active twitter users. Even the ones that are active twitter users
might not be online at the time the information passed was material. Thus, the appellant further
submits that the act of respondent to have employed twitter as a means to disseminate
information to its customer falls below the standard care any reasonable bank would have
taken.
6.5.8 More so my lords, the respondent, just like any other bank would have done, ought to
forestall further transaction on all of its customers’ accounts after it was detected that fraudsters
were usurping the respondent’s app downtime to swindle the respondent’s customers’ money
from their account. As obvious on the record of appeal, hackers gained access to the appellant’s
account and swindled his money during the respondent’s bank app down time. During that
material time, any bank would have forestall the transaction pending the rectification of the
downtime faced by the respondent’s app. However, the respondent failed to do this and can
consequently be held to have breached the duty of care it owes to the appellant.
6.5.9 Premise on all the afore-stated, it is evident before this court that the respondent clearly fell
below the standard care expected of it based on the ‘terms and conditions’ assented to by the
appellant and of any reasonable bank in its shoe. Thus, we respectfully submit that the
respondent is in breach of the duty of care owed to the appellant, in respect of the appellant’s
fund.
6.6.0 THERE WAS DAMAGE CAUSED TO THE APPELLANT DUE TO THE BREACH
OF DUTY OF CARE
6.6.1 It is elementary that in a claim of negligence, the damage caused to the plaintiff must not
be too remote for the court to hold the respondent liable of being negligent. This position of
law was reiterated by the apex court in the case of UNIVERSAL TRUST BANK OF
NIGERIA V. OZOEMENA (2007) LPELR-SC.129/2001 (Pp. 13-14, paras. G-C) as
follow:
“The tort of negligence is traditionally described as damage which is not too remote
and caused by a breach of duty of care owed by the respondent to the plaintiff…”

15 | P a g e
6.6.2 Herein, it has been established that the respondent owes the plaintiff a duty of care and that
same respondent breached that duty of care. As a result of the breach of duty of care owed to
the appellant by the respondent, the appellant lost a sum of 33 million naira. We respectfully
submit that this loss suffered by the appellant is a grievous damage which is not remote for this
court to hold the respondent liable for negligently managing the account of the appellant.
6.6.3 On the whole my lords, we submit that the appellant has proved with cogent facts the
allegation of Negligence against the respondent as stated in the case of ACCESS BANK PLC
V MANN(2021)13 NWLR (PT. 1792)160 (p. 177, Para. G) by the court of appeal thus;

“Where a claimant makes a claim of negligence, the facts of the Allegation of negligence
must be strictly proved.”

6.6.4 Consequently, we beseech this court to resolve this issue in our favor and accordingly hold
that the respondent was negligent in managing the account of the Appellant.
7.0 LEGAL ARGUMENT ON ISSUE FOR DETERMINATION NUMBER FOUR (4)
7.1 My lords, the appellant herein prayed the lower court for the grant of certain special damages
as can be gleaned from the record of appeal, which was refused. The focus of this issue is to
determine whether the appellant was entitled to the special damages sought. It is our
submission, and as will be disclosed in the foregoing argument, that the appellant is entitled to
the grant of the special damages sought.
7.2 My lords, we are not unaware that for this court to grant special damages, it must be specifically
proved; as held by the apex court in the case of AGUNWA V ONUKWE (1962) 1 ALL N.L.R
537 in the following words: “It is trite law that special damages must be strictly proved”
7.3 Also, we are not oblivious that special damages ‘are those that arose after and as a result of
the cause of action and not before it’ – per Abba-Aji JCA, in the case of U.B.N. PLC V.
CHIMAEZE (2007) ALL FWLR (Pt. 364) 303 at 318 Para. E (CA).
7.4 Sequel to the above exposition, the appellant shall strictly prove the special damages sought as
well as the fact that it occurred as a result of the cause of action before this court.
7.5 On the proof of special damages, the appellant herein has established before this court that
the respondent’s bank app experienced a downtime. As a result, the demand for the appellant’s
money in the respondent’s custody was not honored. The failure of the respondent to honor the
request of the appellant, firstly, led to the loss of three million naira in profits by the appellant
on the 12th day of June, 2022.
16 | P a g e
7.6 Secondly, on the 13th day of June, 2022, the failure of the respondent to honor the appellant’s
request for his money in its custody occasioned a loss of five million naira to the appellant.
Lastly, on the 16th day of June, 2022, the appellant realized that he has lost a total sum of thirty-
three million naira in his account.
7.7 Moving forward my lords, the loss incurred by the appellant herein was due to the
negligence of the respondent and the downtime of its app. Having specifically established
the special damages sought for, the appellant submits that all the acts that culminated to the
claim of the specific damages arose out of the cause of action before this cause court – in
particular, the negligence of the respondent in managing the appellant’s account as well as the
downtime of the respondent’s banking app.
7.8 It is the law that where any money kept by a customer – such as the appellant in this case –
with a bank – like the respondent in this case – is missing, it is the bank and not the customer
that bears the loss. This position of law was reiterated in the case of UBA V. OSOK (2016)
LPELR-CA/C/116/2014 (P.33, Paras. B-F) as follow:
“the respondent money in the hands of the bank are not in the custody or under the
control of the customer i.e. the respondent. Such money remains the property in the
custody and control of the banker and payable to the customer when a demand is
made. This is so because if anything happens to the money thereafter e.g. theft of the
money, it is the banker and not the customer that bears the loss…”
7.9 Thus, applying the above holding to the fact of this case, it is evident that the respondent is
liable for the thirty-three million naira missing from the appellant’s account. Also, in the case
of AIR FRANCE V. AKPAN (2015) LPELR-CA/L/1001/2008 (Pp. 27-28, paras. E-A) the
court gave examples of special damages to include the following:
“… Examples of special damages are damages to clothing damages to a vehicle,
medical expenses, nursing fees, taxi fares to and from hospital and loss of earnings
during the period” (Underlined Mine)
7.10 From the example given in the above cited case, it flows that the loss of earnings incurred
by the appellant during the respondent’s app bank time qualifies as a special damages. Hence,
since it has been strictly proved before this court, we that that the appellant is entitled to same
before the lower court. On this note, we pray this court to resolve this issue in our favor.
8.0 CONCLUSION/PRAYERS

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8.1 My lords, based on the legal and factual argument canvassed above, fortified with statutory
and judicial authorities, we urge this honourable court to resolve all the issues raised in our
favour.
8.2 Accordingly, we pray this court to allow our appeal and set aside the decision of the lower
court.
8.3 We are most obliged!

DATED 22ND DAY OF AUGUST , 2023

SETTLED BY:

_______________________

T.D Amao
M.J Abdulsalam
A.A Sharaf
K.A Omoniyi
T.K Alabi
Counsel for the Appellant,
Emirate Chambers,
Opposite Faculty of Law,
Ahmadu Bello University,
Zaria, Kaduna State.
FOR SERVICE:
The Respondent,
Strolex Bank,
Off Ajaku Road,
Apapa,
Lagos State.
C/O His Counsel.

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 IN THE COURT OF APPEAL OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO: HC/LAG/CV/001/23

APPEAL NO: CA/LAG/001/23

BETWEEN:

CHIEF IBRAHIM --------------------------------------------------------- APPELLANT

AND

STROLEX BANK --------------------------------------------------------- RESPONDENT

LIST OF AUTHORTIES

STATUTORY AUTHORITIES
1. Lagos State Illiterate Protection Law Cap 14, Laws of Lagos State, Nigeria, 2015
JUDICIAL AUTHORITIES
2. Bureau Of Public Enterprises V. Assurance Bank Plc & Ors (2009) Lpelr-Ca/A/172/M/106
(P. 19, Paras. C-D)
3. Fhomo (Nig) Ltd V. Zenith Bank (2016) Lpelr-Ca/L/50/2015 (P.43, Paras. A-C)
4. Foster V. Mackinon (1869) L.R.4 C.P 704
5. Otitoju V. Governor Of Ondo State & Ors (1994) Lpelr-Sc.269/1990 (P.13, Paras. E-G)
6. Anaeze V. Anyaso (1993) Lpelr – 480 (Sc) (Pg 18-20, Paras 42-44)
7. Girgiri V. Elf Marketing (Nig) Ltd (1997) 2 Nwlr (487) 368 P377-378 Paras. H-A
8. Iyere V. Bendel Feed And Flour Mill Ltd (2008) Lpelr-Sc.309/2002 (P.31, Paras. A-G)
9. The Vessel Mt. Sea Tiger V. A.S.M. (Hk) Ltd (2020) 14 Nwlr (Pt. 1745) 418 (Ca)
10. Npa V. Aminu Ibrahim & Co. & Anor (2018) Lpelr-Sc.218/2010 (Pp. 64-66, Paras F-D)
11. Allied Bank Of Nigeria Ltd. V. Akubueze (1997) Lpelr-Sc.80/1995 (P.48, Paras. B-C)
12. Fidelity Bank V. Onwuka (2017) Lpelr-Ca/E/661/2013 (Pp. 39-41, Paras. E-F)
13. Integrated Timber Ltd. V. Ubn Plc. [2006] All Fwr (Pt. 32) 1792 Sc.
14. Foley V. Hill (1848) 2h Lc28

19 | P a g e
 15. Sani Abacha Foundation For Peace And Unity V. United Bank For Africa Plc (2010) Jelr
57800 (Sc)
16. R. V. Okon (1962) Lcn/1015 (Sc)
17. Muomah V. Enterprise Bank Ltd (2015) Lpelr-Ca/L/338/2012 (Pp. 18-20, Paras C-B)
18. Jwan V Ecobank (Nig) Plc (2021) 10 Nwlr (Pt.1785) 449 (P.482, Para. D)
19. Anyah V. Imoh Concorde Hotels Ltd. (2002) Lpelr-Sc.175/1995 (P.17, Parras. C-F)
20. U.T.B Nig. V. Ozoemena (2007) 1 Sc (T. 11) 211 At 227-229 Line 20-15.
21. Nepa V Auwal (2023) 6 Nwlr (Pt 1879) 1 (P. 37, Paras .C)
22. Zenith Bank V. Ato Properties Ltd (2019) Lpelr-Ca/85/2017 (Pp. 42-55, Paras. B-A)
23. Blyth V. Birmingham Waterworks Co (1856) 11 Ex. 781 At 784
24. Fbn Plc V Banjo (2015) 5 Nwlr (Pt. 1452) 253
25. Universal Trust Bank Of Nigeria V. Ozoemena (2007) Lpelr-Sc.129/2001 (Pp. 13-14,
Paras. G-C)
26. Access Bank Plc V Mann(2021)13 Nwlr (Pt. 1792)160 (P. 177, Para. G)
27. Agunwa V Onukwe (1962) 1 All N.L.R 537
28. U.B.N. Plc V. Chimaeze (2007) All Fwlr (Pt. 364) 303 At 318 Para. E (Ca).
29. Uba V. Osok (2016) Lpelr-Ca/C/116/2014 (P.33, Paras. B-F)
30. Air France V. Akpan (2015) Lpelr-Ca/L/1001/2008 (Pp. 27-28, Paras. E-A)

DATED 22ND DAY OF AUGUST , 2023

SETTLED BY:

_______________________

T.D Amao
M.J Abdulsalam
A.A Sharaf
K.A Omoniyi
T.K Alabi
Counsel for the Appellant,
Emirate Chambers,
Opposite Faculty of Law,
Ahmadu Bello University,
Zaria, Kaduna State.
FOR SERVICE:
The Respondent,
Strolex Bank,

20 | P a g e
Off Ajaku Road,
Apapa,
Lagos State.
C/O His Counsel.

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