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

RESPONDENT’S BRIEF OF ARGUMENT

DATED 24th DAY OF AUGUST , 2023

SETTLED BY:

_______________________

M.H Hamzah
M.S Ibrahim
B.T Agboola
Haruna Musa
I.I Ibrahim
Counsel for the Respondent,
Flawless Chambers,
Beside Namlas Library,
Ahmadu Bello University,
Zaria, Kaduna State.
FOR SERVICE:
The Appellant,
Chief Ibrahim,
Off Ibeju Road,
Ikeja,
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 4-19

7 CONCLUSION 19

8 LIST OF AUTHORITIES 20-22

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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 respondent’s brief of argument in opposition to this appeal.
2.0 STATEMENT OF RELEVANT FACT
2.1 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 Voluntarily, the appellant, a commercial trader in Kaduna opened an account with the
respondent bank vide its bank app
2.3 Part of the registration process is the accession to certain terms and conditions which contains
a term that severe the respondent of liabilities arising out of the appellant’s failure to protect
information received from bank as well as another term which mandates the respondent to
mediate any dispute that ensues with the bank at the respondent customer care department.
2.4 Unfortunately, after the appellant opened an account with the respondent bank, the
respondent’s banking app experienced a down time for five consecutive days, starting from the
12th of June, 2022.
2.5 During the downtime, the respondent updated its customer vide its twitter account of all
development concerning the downtime challenging the respondent’s banking app.
2.6 Also, the respondent warned its customers when it became aware of the fact that hackers are
disguising as agents of the respondent in order to gain access to the customers banking details.
2.7 All the communication were made by the respondent on its twitter handle. Shockingly, after
the downtime was rectified, the appellant walked down into the respondent’s bank to lodge
complain over the thirty three million that had disappeared from the appellant’s account during
the downtime.
2.8 The respondent’s gateman was privy to the fact that the appellant had released its banking
details to unknown persons who are not in any way affiliated to the bank. It became limpid that
the loss suffered by the respondent was self-induced. Consequently, the respondent’s gateman

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 refused the respondent entry into the bank, authoritatively asserting that the respondent has not
remedy to the misfortune suffered by the appellant.
2.9 Counterintuitively, the appellant approached the lower court to seek for the grant of certain
reliefs against the respondent in a bid to hold the respondent liable for the loss he has
occasioned on himself. However, on an application made to the lower court, for want of
jurisdiction premise on the fact the mediation clause between the appellant and respondent is
yet to be complied with, the lower dismissed the suit as well as the reliefs sough therein. The
appellant has now approached this court to upturn the decision of the lower court.
2.10 Hence this respondent brief of argument in opposition to this appeal, urging this court to
dismiss this appeal and uphold the decision of the lower court.
3.0 ISSUES FOR DETERMINATION
3.1 For the kind and just determination of this appeal, the respondent adopts the three issues raised
before this court by the appellant, 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?
4.0 LEGAL ARGUMENT ON ISSUE FOR DETERMINATION NUMBER ONE (1)
4.1 My lords, jurisdiction which is the bone of contention herein, is the blood that flows in the vein
of this court. Without it, this court is lifeless and cannot adjudicate over this matter. This
postulation was reiterated by the apex court in the case SARAKI V. FRN (2016) LPELR-
SC.852/2015 (P.47, Paras A-E) in the following words:
“…Jurisdiction has been accepted as the authority which a court or tribunal has to
decide matters presented in a formal way for its decision. Where a court does not have
jurisdiction, there is nothing before it to adjudicate…”
4.2 For a court to have jurisdiction over a matter, either the constitution or an enabling statute must
have donated such power to it. Pursuant to Section 272(1) of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) (hereinafter referred to as CFRN) this court can

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 be said to have the requisite jurisdiction to entertain the matter between the appellant and the
respondent – reason being that it is a dispute between a bank and its customer. See also; NDIC
V. O’SILVAWAX INTERNATIONAL LIMITED & ANOR. (2006) LPELR-
CA/E/126/2001 (Pp.28-29, Paras. A-A) where the court of appeal re-echoed this assertion as
follow:

“Although… Section 251(1) of the 1999 constitution confers exclusive jurisdiction on

the Federal High Court to adjudicate on Matters connected with banks and banking
thereby reducing the hitherto unlimited jurisdiction of the High of various states, the
high court of a state still has jurisdiction to entertain claims connected with banks
and banking except such claims are connected with fiscal measures or revenue of the
Federal Government…”

4.3 Notwithstanding that the constitution donates jurisdiction to this court over this matter, the
respondent contends that the agreement between the parties to explore mediation, which is an
alternative dispute resolution mechanism, before resolving to a court of law ousts the
jurisdiction of this court to entertain this matter pending compliance with the agreed mode of
alternative dispute resolution.
4.4 Ordinarily my lords, parties cannot unilaterally consent to oust the jurisdiction of a court. ‘Any
agreement by any person or party to any cause, matter or action which seeks to oust the
jurisdiction of the court shall be null and void’ – per Adekeye J.S.C. in the case of JFS
INVESTMENT LTD. V. BRAWAL LINE LTD (2010) LPELR-SC.116/2002 (P.39, Paras.
A-F).
4.5 However, it was noted in the case of BUREAU OF PUBLIC ENTERPRISES V.
ASSURANCE BANK PLC & ORS (2009) LPELR-CA/A/172/M/106 (P. 19, paras. C-D)
that an agreement to explore alternative dispute resolution mechanism constitute an exception
to the above stated principle:

“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”

4.6 In this case, the appellant agreed to the respondent’s terms and conditions of banking with it,
which prescribed mediation as an initial means of resolving any dispute that ensues between

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 the appellant and the respondent. In defiance of the agreed mode of dispute resolution, the
appellant instituted this matter before this court. Consequent upon the above holding in
BUREAU OF PUBLIC ENTERPRISES V. ASSURANCE BANK PLC & ORS (SUPRA),
the respondent submits that this court is robbed of jurisdiction to entertain this matter pending
the exploration of mediation on two grounds:
(i) The agreement between the appellant and respondent must be enforced by this court
(ii) The mediation clause is a condition precedent to the jurisdiction of this court
4.7.0 THE AGREEMENT BETWEEN THE APPELLANT AND THE RESPONDENT
MUST BE ENFORCED BY THIS COURT
4.7.1 It is settled that where parties voluntarily, without duress, coercion or fraud, enters into an
agreement, such agreement is binding and what the court should do is to enforce such
agreement. This postulation is fortified by the holding of the court of appeal, Per Otisi, JCA in
BEAUMONT RESOURCES LTD & ANOR V. DWC DRILLING LTD (2017) LPELR-
CA/L/788/2014 (Pp. 30-47, Paras. B-D) thus:

“it is settled that, in the absence of fraud, misrepresentation and illegality, parties to
an agreement or contract are bound by the terms and conditions of the contract they
signed… the court can only give effect to the intention of the parties…”

4.7.2 In this case, the appellant unilaterally agreed to the respondent’s ‘terms and conditions’ of
banking with it, which has a mediation clause embedded in it in case any dispute arises between
the appellant and the respondent. The appellant might be tempted to argue that the ‘terms and
conditions’ were ‘scarcely readable’ and ‘not easily accessible’ with an option to ‘skip and
accept’ and thus, this court should not enforce it.
4.7.3 We respectfully posit that such argument by the appellant is ill-founded. Majorly because
the appellant knew about this irregularity before agreeing to the terms and conditions. He had
the right to decline accepting the terms and conditions. Notwithstanding this right, the appellant
proceeded to agree to the terms and conditions which has a mediation clause embedded in it.
4.7.4 My lords, legally, the act of the respondent amounts to waiver as espoused by the apex
court in FASADE & ORS V. BABALOLA & ANOR (2003) LPELR-SC.190/1997 (P.21,
paras. B-F) thus:
“The concept of waiver must be one that presupposes that the person who is to enjoy
a benefit or who has the choice of two benefits is fully aware of his right to the benefit
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 or benefits, but he either neglects to exercise his right to the benefit, or where he has
a choice of two, he decides to take one of both… he cannot be heard to complain
afterwards that he has not been permitted the exercise of his right or that he has
suffered by his not having exercised his rights. He should be held to have waived those
rights, to put it in another way, he is estopped from raising the issue”
4.7.5 Invariably my lords, from the above holding of the apex court, the appellant cannot be
heard complaining that the ‘terms and condition’ which has a mediation clause is ‘scarcely
readable’ and ‘not easily accessible’ with an option to ‘skip and accept’ and thus, this court
should not enforce it.
4.7.6 Also, the appellant might urge this court to discountenance the ‘mediation clause’ because
he is a ‘semi-illiterate’ and that he was not provided with the protection afforded to an illiterate
by the Illiterate protection law of Lagos State.
4.7.7 The respondent respectfully submits that the appellant does not benefit from the illiterate
protection act as he is not within the class of persons envisaged by the definition preferred to
the word illiterate by the apex court in the case of P.Z CO. LTD V. MALLAM MOMO
GUSAU (1962) 1 ALL NLR 242, which was re-echoed by the court of appeal in the case of
GIRGIRI V. ELF MARKETTING NIGERIA LTD (1996) LPELR-CA/J/70/95 (P.12,
paras, C-F) thus:
“the word ‘illiterate’ as used in the illiterate protection act must be construed in the
ordinary meaning. An ‘illiterate’ within the meaning of the illiterates protections act
is a person who is unable to read or write in any language. i.e. a person who is totally
illiterate.” (Underlined Mine)
4.7.8 As evident before this court, the appellant is a semi-illiterate. The word ‘semi-’ was defined
by Oxford Advanced Learners Dictionary to mean “1. Half; 2. Partial, incomplete; 3.
Somewhat, rather, quasi.” Applying this definition of ‘semi-‘to the word ‘semi-illiterate’, it
presupposes that the appellant is a partial illiterate. It infers that the appellant is not a total
illiterate as expected by the definition given to the word Illiterate in GIRGIRI V. ELF
MARKETTING NIGERIA LTD (SUPRA)
4.7.9 Impliedly my lords, the plea of non-compliance with illiterate protection act will not avail
the appellant from the mediation clause he unilaterally assented to since the illiterate protection
is not available to the appellant.

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4.7.10 Therefore, the respondent submits that the appellant voluntarily consented to the ‘terms
and condition’ which has a mediation clause embedded in it. Without any factor exculpating
the appellant from this agreement, what behoves this court is to enforce the terms and condition
as held in BEAUMONT RESOURCES LTD & ANOR V. DWC DRILLING LTD
(SUPRA). See also; Chevron (Nig) Ltd & Anor v. Brittania-U (Nig) & Ors (2018) LPELR-
CA/L/557/14 (Pp. 75-78, Paras. C-E).
4.8.0 THE MEDIATION CLAUSE IS A CONDITION PRECEDENT TO THE
JURISDICTION OF THIS COURT
4.8.1 Having established that the terms and condition between the appellant and the respondent,
which has a mediation clause embedded in it, is binding on both parties, the mediation clause
becomes a condition precedent to the exercise of jurisdiction by this honourable court. What a
condition precedent connotes was defined in the case of NIGERCARE DEV. CO. LTD. V.
A.S.W.B (2008) 9 NWLR (PT. 1093) 398 at 520, Paras E-F; 521 thus:

“… a condition precedent is defined as one which delays the vesting of a right until
the happening of an event…”

4.8.2 Accordingly my lords, it flows from the above exposition that the act of the appellant to
have initiated this matter without honouring the mediation agreement amounts to non-
compliance with a condition precedent. The court of appeal had hitherto pronounced on the
effect of non-compliance with a condition precedent in the case of GARBA V. NIGERIAN
ARMY & ORS (2019) LPELR-CA/L/61C/2018 (Pp. 9-13, Paras. F-A) as follow:
“it is however a settled principle of law, that where there exists a valid condition
precedent to the institution of a matter, created by a statute or contract, failure to
fulfil the condition would mean that the court is estopped from accommodating such
litigant and infact is devoid of jurisdiction until the needful is done…”
4.8.3 Invariably and as earlier posited by the respondent, it is discernible from the above holding
of the court of appeal that this court is robbed of jurisdiction to entertain this matter reason
being that the mediation clause in the agreement between the appellant and the respondent,
which qualifies as a condition to the exercise of jurisdiction by this court, has not been
complied with.

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4.8.4 In purview of the legal and factual argument canvassed above, the respondent respectfully
submit that this court lacks the requisite jurisdiction to entertain this matter. Accordingly, this
court should resolve this issue in our favour.
5.0 LEGAL ARGUMENT ON ISSUE FOR DETERMINATION NUMBER TWO (2)
5.1 The focal point of this issue is 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. We respectfully answer the question that ensues from
this issue in the affirmative and urge this court to so hold in light of the succeeding argument.
5.2 Admittedly my lords, the relationship between a bank and a customer is a contractual one and
as such, it is governed by terms and conditions stipulated by parties. This was the position of
the court in JIGNA FARMS LTD. V. UBN PLC (2016) LPELR-40231 (CA) where the court
of appeal, per Ekanem J.C.A, held that:
“the relationship between a banker and his customer is contractual in nature. It is
that of a debtor and creditor or principal and agent…”
5.3 More so, the respondent is not oblivious that, aside from the express terms stipulated in contract
to guide the relationship between a bank and its customers, certain terms are implied from the
ordinary course of business between them. See; LINTON INDUSTRIAL TRADING
COMPANY NIGERIA LTD V. CBN & ANOR (2013) LPELR-CA/L/160/2002 (P.25,
paras E-G)
5.4 One of these implied terms in a banker/customer relationship is that a bank must deliver up
money of its customer upon demand. This implied term was recognized by the court of appeal
in the case of MUOMAH V. ENTERPRISE BANK LTD (2015) LPELR-CA/L/338/2012
(Pp. 18-20, paras. C-B) in the following words:

“…Since the celebrated case of Foley v. Hill (1848) 2 H.L CAS. 28, the
relationship in law between a banker and his customer has been that of debtor
and creditor. When a customer whose account has money makes a demand on
the bank, it must comply because it is a debtor…”

5.5 In this case, the appellant claims that the respondent has breached the implied term espoused
above due to the inability of the appellant to transfer funds out of his account or receive money
into his account between the 12th and 13th day of June, 2022, as a result of the downtime faced

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 by the respondent’s app. The respondent respectfully contend that the implied term was not
breached as will be disclosed below on the following basis:
5.6.0 DEMAND WAS NOT MADE BY THE APPELLANT TO THE RESPONDENT FOR
HIS MONEY
5.6.1 The law is settled that, since the relationship between the appellant and the respondent is
that of a debtor and creditor, valid demand for repayment must be made before the respondent
can be held to have breached the implied term – a banker must deliver up payment once
demand is made by its customer – in its relationship with the appellant. This is position was
re-echoed by the court of appeal in the case of MTN V. CHINEDU (2018) LPELR-
CA/E/200/2014 (Pp. 40-43, Paras. A-F) as follow:
“…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 can bring an action against it
for breach of contract…”
5.6.2 Moving on, ‘what constitutes a demand of repayment depends on the facts of each case’-
per Augie J.C.A, in AIB LTD V. LEE & TEE INDUSTRIES LTD & ANOR (2003)
LPELR-CA/B/213/98 (P. 37, paras. B-D). In this case, a valid demand for repayment will be
held to be made by the appellant through the respondent’s app. However, due to the downtime
experienced by the appellant, the demand was not completed – i.e. the appellant was unable to
make a demand.
5.6.3 Invariably, it suffices that the appellant never made any demand for his money that was in
the respondent’s custody. As a result, we submit that this court should not hold that the
respondent breached the implied term – to deliver up money in its custody upon request – in
its relationship with the appellant since no request/demand can be said to be made in the
circumstance of this case.
5.6.4 The above submission is fortified by the holding of the apex court in ISHOLA V. S.G.B
(NIG) LTD (1997) 2 NWLR (Pt. 488) 405 that:

“There has to be evidence that the customer made a demand for the withdrawal of
the money in his or her account with the bank which was refused to ground a cause
of action”

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5.6.5 Patent before this court is that the appellant was unable to make a demand due to the
downtime faced by the respondent’s app. Hence, we urge this court to hold that the respondent
did not breach the implied term in its relationship with the appellant.
5.7.0 THE RESPONDENT IS DISCHARGED OF THIS IMPLIED TERM BY THE
DOCTRINE OF FRUSTRATION.
5.7.1 Alternatively my lords, if this court will consider that demand was made by the appellant
to the respondent in the circumstance of this case, we submit that the failure of the respondent
to deliver the appellant’s money in its possession is due to frustrating event which renders the
implied term in the relationship between the appellant and the respondent, inoperable.
5.7.2 The apex court in MAZIN ENGINEERING LIMITED V. TOWER ALUMINUM
(NIGERIA) LIMITED (1993) 5 NWLR (PT. 295) 526 has held a contract to be frustrated
where:
“…there is a premature determination of an agreement between parties lawfully
entered into, owing to the occurrence of an intervening event, or change of
circumstances so fundamental as to be regarded by law both as striking to the root of
the agreement and entirely beyond what was contemplated by the parties when they
entered into the agreement.”
5.7.3 Thus, a contract is frustrated where; after its conclusion, events occur which make
performance of the contract impossible, illegal, or something radically different from that
which was in contemplation of the parties at the time they entered it. In this case, performance
of the contract – i.e. the duty of the respondent to deliver up the appellant’s money upon
request – was rendered impracticable due to the downtime experienced by the respondent’s
bank, and this occurrence was neither self-induced nor contemplated by any of the parties.
5.7.4 In ONUIGBO V. AZUBUIKE (2013) LPELR-47353 (CA), the court held that; one effect
of frustration on a contract is that the question of breach of contract will not arise as none
of the parties can be held responsible for the occurrence of the frustrating event or
circumstance.
5.7.5 Therefore my lords, we submit that since the contract between the Appellant and the
Respondent in this case has been frustrated, the respondent is not in breach of any terms of
the contract it has with the respondent.

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5.8.0 THE RESPONDENT DID NOT INTERFERE WITH THE ECONOMIC
INTEREST OF THE APPELLANT
5.8.1 Firstly, in line with our earlier exposition that the appellant never made a demand to the
respondent for his money due to the downtime of the respondent’s app, we submit that any
economic loss suffered by the appellant was self-induced and consequently, the respondent
cannot be held to have interfered with the economic interest of the appellant.
5.8.2 Also, the law is trite that where a party incurs losses as a result of frustration of the contract,
liability for the loss would not lie on the other party as it would in a case of breach of contract.
See the cases of AUGUSTINE ASIBE & ORS V. OWERRI MUNICIPAL LOCAL
GOVERNMENT (2012) LPELR-9820 (CA) and NOSPECTO OIL & GAS LIMITED V.
KENNEY & ORS. (2014) LPWLE-23628 (CA).
5.8.3 Thus, the respondent further submits that, in purview of our earlier exposition that the
respondent is severed of compliance with the implied term in his relationship with the appellant
as a result of the doctrine of frustration, the respondent did not interfere with the economic
interest of the appellant.
5.8.4 On the whole, the respondent urges this court to resolve this issue in our favour and hold
that; the downtime of the respondent’s bank app neither constitute a breach of the implied term
in the banker-customer relationship, nor does it interfere with the appellant’s economic
interest.
6.0 LEGAL ARGUMENT ON ISSUE FOR DETERMINATION NUMBER THREE (3)

6.1 The marrow of this issue is the determination of the question of whether or not the Respondent
was negligent in handling the account of the Appellant in this instant case. We humbly answer
the above question in the negative and urge this honorable court of justice to so hold, while
placing heavy reliance on the strength of the foregoing argument.

6.2 Foremost, it is of essence to define the term in dispute within the legal parlance before delving
into its existence or otherwise in this instant case. In the case of ABI V. CBN & ORS (2011)
LPELR-CA/A/262/2007 (Pp. 36-37, Paras F-A) as follow:

“…Negligence in law means omission or failure to do something which a reasonable

man, under similar circumstances would do or that which a reasonable man would a
reasonable man would not do…”

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6.3 It follows from the above definition of negligence that, for the respondent to be negligent in
managing the account of the appellant, the respondent must have acted in a way that any
reasonable man – which in this case is another bank – would not have acted.

6.4 Moving forward, for this court to hold that the respondent was negligent in managing the
account of the appellant, the court of appeal stated, in the case of NEPA V. AUWAL (2010)
LPELR-CA/K/130/2007 (P.20, paras. C-D), what the appellant should do, thus:

“In an action for negligence, for the plaintiff to be awarded damages, he must show
the existence of a duty of care by the respondent, the breach of that duty and damages
suffered as a result of that breach”

6.5 Capable of being gleaned from the above holding is that the appellant has three cumulative
responsibilities to discharge in this case, for the court to hold the respondent negligent for
managing the appellant’s account: (i) there exist a duty of care by the; (ii) the respondent
breached this duty and; (iii) damages were suffered as a result of the breach. The respondent
respectfully submits that this three cumulative elements of negligence is not satisfied in this
case. See; UNILORIN TEACHING HOSPITAL V. ABEGUNDE (2015) 3 NWLR (Pt.
1447) 421 at 428

6.6 Firstly, on the existence of duty of care, we concede that the respondent owes the appellant a
duty of care in respect of the appellant’s money in the respondent’s custody. This concession
by the respondent is premise on the holding of the court of appeal in the case of DIAMOND
BANK PLC V. MONANU (2012) LPELR-CA/E/42/2008 (P.33, Paras. F-G) that:

“The duty imposed on a bank is clear in law. It is a duty to exercise reasonable care
and skills and which extends over the whole range of banking business within the
contract with the customer.”

6.7 Also, in the case of MAINSTREET BANK PLC v. DIZENGOFF (WEST AFRICA) NIGERIA
LTD (2014) LPELR-CA/YL/30/2013 (Pp. 41-44, paras. G-A), the court of appeal further
reiterated the above position in the following words:

“The principle of law is that a bank has a duty to exercise reasonable care, diligence
and skill in carrying out its customers' instructions. This duty extends over a whole
range of banking business within the contract with the customer”

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6.8 Therefore my lords, it is undoubtedly settled that the respondent – being a bank – owes the
appellant, who is its customers, a duty of care in respect of the appellant’s money in the
respondent custody.

6.9 Turning to the breach of the duty owed to the appellant, the respondent submits that it is not
in breach of the owed to the appellant. To determine whether the respondent is in breach of its
duty, the reasonable man test laid down in the case of Blyth V. Birmingham Waterworks Co
(1856) 11 Ex. 781 At 784 will be applied. The reasonable man test presupposes that the
respondent should not act in a way that another bank in its standing would not have acted.

6.10 In this case, the respondent bank had a down time for five days, starting from 12th of June,
2022. On the fourth day, the appellant released his bank app details to fraudsters, who disguised
as the respondent’s agent. These fraudsters withdrew 33million from the appellant’s account.
It is in lieu of this fact that the appellant contend that the respondent was negligent in managing
his account. However my lords, the respondent posits otherwise as it did what any other bank,
in its standing would, have done.

6.11 Firstly my lords, the respondent had hitherto warned the appellant, while opening an
account with the respondent, not to disclose any of its banking details to anyone. This is
contained in ‘Clause3.3 of the terms and condition’ agreed to by the appellant as follow:

“To protect your money, we need you to keep your card, phone and pin safe at all
times… do not allow anyone to have or use your password or transaction pin
details…”

6.12 This terms is clearly a precautionary measure taken by the respondent to ensure that it
keeps to the duty owed to the appellant – i.e. duty to keep the appellant’s money safe. It
therefore suffices that the respondent exercise diligent care in keeping the appellant’s funds
safe:

“To protect your money, we need you to keep your card, phone and pin safe at all
times… do not allow anyone to have or use your password or transaction pin
details…”

6.13 More so, it is discernible from the terms reproduced above that, the duty owed to the
appellant by the respondent is subject to a precondition: the appellant must protect his details

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 from anyone. It is settled law that where there is a noncompliance with a condition precedent
invalidates any subsequent act done. This position was reaffirmed by the court of appeal, per
Odili JCA, in the case of ORAKUL RESOURCES LTD V. N.C.C. (2007) 16 NWLR (Pt.
1060) 270 at 302 Paras. B-D (CA) thus:

“Where a precondition for the doing of an act has not been complied with, no
subsequent act thereto can be regarded as valid. This is because the act to which it is
subject has not been done.”

6.14 Invariably my lords, it flows from the above holding that the failure of the appellant to
comply with a precondition for the respondent to keep is money safely – i.e. to protect his
transaction details from anyone – invalidates any claim that the respondent was negligent in
keeping his money safely.

6.15 Aside the above, the respondent in an effort to ensure that it does not breach its duty to the
appellant, the respondent made a publication of the insidious act done by fraudsters to its
customer’s account during the downtime of the app, on twitter. The appellant might argue that
twitter is not among the means – SMS, email and push notifications – he consented to receive
notifications from the respondent. On our part, we posit that the means stipulated in the terms
and condition of opening an account is not mandatory. Thus, the respondent can opt for a
means which will serve same purpose, as it has done in this case.

6.16 In light of the above exposition, we respectfully submit that the respondent is not in breach
of the duty of care owed to the appellant. Since it did all a reasonable bank in its position would
have done.

6.17 Moving forward to the third element, which is whether the damage incurred by the
appellant was as a result of the respondent’s breach. The respondent submits that, in purview
of its earlier submission that it is not in breach of the duty care owed to the appellant, there
cannot be a damage resulting from a non-existent breach.

6.18 Assuming without conceding that this court finds that the respondent is in breach of the
duty owed to the appellant, the respondent further submits that damage incurred was as a result
of the negligence of the appellant – otherwise known as contributory negligence.

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6.19 In the case of N.B.C PLC V BORGUNDU (1999) 2 NWLR (PT. 591) 408 (p.426,para.
F) the court of appeal defined contributory negligence as follows;

“Contributory negligence means the failure by a person to use reasonable care for the
safety of himself or his property, so that he becomes the author of his own wrong…”

6.20 As evidenced before this court, it was the appellant who, against the warnings issued by
the respondent, released his transaction details to the fraudsters that swindled his money.
Without the appellant releasing his transaction details to fraudsters, the damage of 33million
naira suffered by him would not have occurred. Thus, it is viable to assert that without the
contributory negligence of the appellant, the damage incurred by the appellant would not have
occurred.

6.21 The authors of ‘Winfield and Jolowicz on Tort’ 19th Edition, stated at Page 777 of their
book that: “…in some cases, especially those in which the appellant seek to recover for
damage suffered in a second accident, the respondent has been exonerated on the ground
that the appellant’s conduct amount to Nova Causa Interveniens…”

6.22 Herein, it is the contention of the respondent that the damage incurred by the appellant is
as result of second accident. The first accident being failure of the respondent to ensure that its
app does not go on downtime. Thereby, restricting the appellant from transferring or receiving
funds in his account.

6.23 Consequently, and in line with the postulation of the authors ‘Winfield and Jolowicz on
Tort’ 19th Edition reproduced above, as well as the decision in the Scottish case of McKEW
V. HOLLAND & HANNEN & CUBITTS (SCOTLAND) LTD (1969) 3 ALL E.R. 1621
(H.L. Sc), the respondent submits that the damage incurred by the appellant is from a second
accident and it therefore cannot be held have caused the damage as a result of its breach of its
duty of care owed to the appellant.

6.24 Accordingly, the respondent urges the court to hold that the damage suffered by the
appellant, if any, did not result from the respondent’s breach of its duty owed to the appellant,
if indeed there was a breach of duty of care by the respondent.

6.25 Alternatively, if this court is inclined to hold that the respondent was in breach of the duty
owed to the appellant and that damage occurred as a result of the breach, the respondent

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 respectfully submits that it severed itself of liability for such damage in the terms and condition
assented to by the appellant. For clarity, Clause 3.3 of the terms and condition provides that:

“…if you share these details, we cannot and will not be liable for any loss or damage
arising from your failure to comply…”

6.26 Invariably, the above reproduced terms constitute an exclusion term. The court in the case
of PHOTO PRODUCTINOS LIMITED V. SECURICOR TRANSPORT LIMITED 1980
1 AL ER 596 commented, on the nature of an exclusion clause, as follow:

“An exclusion clause is a term of contract which purports exclude to exclude or

exempt a party who has committed breach of contract from liability for his conduct
thereby depriving the innocent party of the remedy which he would otherwise have
been entitled to”

6.27 It flows from the above exposition that the exemption clause in the ‘terms and condition’
agreed to by the appellant severe the respondent of any liability it would have incurred, if there
was indeed a breach of duty of care which causes damage to the appellant.

6.28 Consequent upon the above, the respondent submits that it was not negligent in managing
the account of the appellant. If this court find otherwise, the respondent further submits that it
is exempted from any liability arising from the negligent act.

6.29 Accordingly, we pray this court to resolve this issue in our favour.

7.0 LEGAL ARGUMENT ON ISSUE FOR DETERMINATION NUMBER FOUR (4)

7.1 The fulcrum of this issue is whether the lower court is by law permitted to grant the special
damages sought by the appellant in this case. We respectfully submit that the appellant has
failed to prove his entitlement to the special damages claimed. Hence, this court should hold
that the appellant was not entitled to same before the lower court.

7.2 By way of rehash, “special damages are those which are actual, but not necessary, result of
the injury complained of and which in fact follow it as a natural or proximate consequence
in the particular case…” – per Fabiyi J.C.A in the case of UTB LTD V. OZOEMA (2000)
LPELR-CA/E/150/99 (Pp. 28-29, paras. G-A).

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7.3 Also, it has been held time and again that for a court to grant special damages, same must be
proved strictly. See; OTARU & SONS LTD V. IDRIS & ANOR (1999) LPELR-
SC.166/1992 (P.22, para. E). Furthermore, In the case of U.T.B. (NIG) V. OZOEMENA
(2007) 3 NWLR (Pt. 1022) 448 at 492 Paras. C-D (SC), the apex court declared that:
‘production of a receipt as evidence of payment is sufficient to meet the requirement of strict
proof of special damages.’

7.4 It flows that for the appellant to be entitled to the damages sought, he must tender an evidence
before the lower court. Considering the peculiar nature of this case, it will suffice that the
appellant has proved his entitlement to the profit loss while the respondent’s app was on
downtime, if the appellant shows a record of how much profit he makes in a day.

7.5 However, the appellant failed to do this in this case. In light of this, the respondent submits
that the appellant has failed woefully in proving that he is entitled to the special damages
sought. Especially, since in the absence of evidence to ascertain the claim, it turns out to be a
mere speculation. In ISAH V. STATE (2007) NWLR (Pt. 1049) 582 at 614, Paras. A-B
(CA), speculation was held to mean:

“… The art of theorising about a matter as to which evidence is sufficienct for certain
knowledge”

7.6 It is the law that; ‘courts are not given to speculation. They act on hard evidence.’ – Per
Salami JCA in the case of ZABUSKY V. ISREALI AIRCRAFT IND. (2008) 2 NWLR (Pt.
1070) 109 at Pp. 133, Paras. F-G. Hence, we urge the court to disregard the special damages
claimed as regard the profit lost by the appellant.

7.7 Also, as regard the thirty three million that was swindled from the appellant’s account, it is the
submission of the respondent the loss did not flow as a result of the cause of action in question.
Rather, it is as a secondary act of the contributory negligence of the respondent. It is settled
and as was held in McKEW V. HOLLAND & HANNEN & CUBITTS (SCOTLAND) LTD
(SUPRA) that the respondent is exonerated from such damage caused.

7.8 More so, it was held in the case of U.B.N. PLC V. CHIMAEZE (2007) ALL FWLR (Pt.
364) 303 at 318 Para. E (CA) that: ‘special damages are those that arose after and as a
result of the cause of action and not before it.’

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7.9 Since the respondent is not liable for the damage – i.e. the 33million lost by the appellant –
and also, by the fact that the damage did not flow from the cause of action before this court,
the respondent submits that this court should refuse the grant of such specific damage.

7.10 On the whole, we submit that the appellant was not entitled to the grant of the special
damage sought before the lower court. Hence, we pray this court to resolve this issue in our
favour.

8.0 CONCLUSION/PRAYERS

8.1 In lieu of the legal and factual argument accentuated above, laced with judicial and statutory
authorities, we urge this court to resolve all the issues raised in our favor.

8.2 Accordingly, we pray this court to dismiss this appeal.

8.3 We are most grateful.

DATED 24th DAY OF AUGUST , 2023

SETTLED BY:

_______________________

J.O Yusuf
Counsel for the Respondent,
Flawless Chambers,
Beside Namlas Library,
Ahmadu Bello University,
Zaria, Kaduna State.
FOR SERVICE:
The Appellant,
Chief Ibrahim,
Off Ibeju Road,
Ikeja,
Lagos State.
C/O His Counsel.

Page | 19
 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 AUTHORITIES
STATUTORY AUTHORITIES

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Lagos State Illiterate Protection Law Cap 14, Laws of Lagos State, Nigeria, 2015
JUDICIAL AUTHORITIES

1. Saraki V. Frn (2016) Lpelr-Sc.852/2015 (P.47, Paras A-E)

2. Ndic V. O’silvawax International Limited & Anor. (2006) Lpelr-Ca/E/126/2001 (Pp.28-
29, Paras. A-A)
3. Jfs Investment Ltd. V. Brawal Line Ltd (2010) Lpelr-Sc.116/2002 (P.39, Paras. A-F).
4. Bureau Of Public Enterprises V. Assurance Bank Plc & Ors (2009) Lpelr-Ca/A/172/M/106
(P. 19, Paras. C-D)
5. Beaumont Resources Ltd & Anor V. Dwc Drilling Ltd (2017) Lpelr-Ca/L/788/2014 (Pp.
30-47, Paras. B-D)
6. Fasade & Ors V. Babalola & Anor (2003) Lpelr-Sc.190/1997 (P.21, Paras. B-F)
7. P.Z Co. Ltd V. Mallam Momo Gusau (1962) 1 All Nlr 242
8. Girgiri V. Elf Marketting Nigeria Ltd (1996) Lpelr-Ca/J/70/95 (P.12, Paras, C-F)
9. Chevron (Nig) Ltd & Anor V. Brittania-U (Nig) & Ors (2018) Lpelr-Ca/L/557/14 (Pp. 75-
78, Paras. C-E).
10. Nigercare Dev. Co. Ltd. V. A.S.W.B (2008) 9 Nwlr (Pt. 1093) 398 At 520, Paras E-F; 521

Page | 20
 11. Garba V. Nigerian Army & Ors (2019) Lpelr-Ca/L/61c/2018 (Pp. 9-13, Paras. F-A)
12. Campagnie Generale De Geophysique (Nig) Ltd V. Anidi (2005) Lpelr-Ca/B/182/2004
13. Jigna Farms Ltd. V. Ubn Plc (2016) Lpelr-40231 (Ca)
14. Linton Industrial Trading Company Nigeria Ltd V. Cbn & Anor (2013) Lpelr-
Ca/L/160/2002 (P.25, Paras E-G)
15. Muomah V. Enterprise Bank Ltd (2015) Lpelr-Ca/L/338/2012 (Pp. 18-20, Paras. C-B)
16. Mtn V. Chinedu (2018) Lpelr-Ca/E/200/2014 (Pp. 40-43, Paras. A-F)
17. Aib Ltd V. Lee & Tee Industries Ltd & Anor (2003) Lpelr-Ca/B/213/98 (P. 37, Paras. B-
D)
18. Ishola V. S.G.B (Nig) Ltd (1997) 2 Nwlr (Pt. 488) 405
19. Mazin Engineering Limited V. Tower Aluminum (Nigeria) Limited (1993) 5 Nwlr (Pt.
295) 526
20. Onuigbo V. Azubuike (2013) Lpelr-47353 (Ca)
21. Augustine Asibe & Ors V. Owerri Municipal Local Government (2012) Lpelr-9820 (Ca)
22. Nospecto Oil & Gas Limited V. Kenney & Ors. (2014) Lpwle-23628 (Ca)

23. Abi V. Cbn & Ors (2011) Lpelr-Ca/A/262/2007 (Pp. 36-37, Paras F-A)

24. Nepa V. Auwal (2010) Lpelr-Ca/K/130/2007 (P.20, Paras. C-D)

25. Unilorin Teaching Hospital V. Abegunde (2015) 3 Nwlr (Pt. 1447) 421 At 428

26. Diamond Bank Plc V. Monanu (2012) Lpelr-Ca/E/42/2008 (P.33, Paras. F-G)

27. Mainstreet Bank Plc V. Dizengoff (West Africa) Nigeria Ltd (2014) Lpelr-Ca/Yl/30/2013 (Pp.
41-44, Paras. G-A)

28. Blyth V. Birmingham Waterworks Co (1856) 11 Ex. 781 At 784

29. Orakul Resources Ltd V. N.C.C. (2007) 16 Nwlr (Pt. 1060) 270 At 302 Paras. B-D (Ca)

30. N.B.C Plc V Borgundu (1999) 2 Nwlr (Pt. 591) 408 (P.426,Para. F)

31. Mckew V. Holland & Hannen & Cubitts (Scotland) Ltd (1969) 3 All E.R. 1621 (H.L. Sc)

32. Photo Productinos Limited V. Securicor Transport Limited 1980 1 Al Er 596

33. Utb Ltd V. Ozoema (2000) Lpelr-Ca/E/150/99 (Pp. 28-29, Paras. G-A)
34. Otaru & Sons Ltd V. Idris & Anor (1999) Lpelr-Sc.166/1992 (P.22, Para. E)

Page | 21
 35. U.T.B. (Nig) V. Ozoemena (2007) 3 Nwlr (Pt. 1022) 448 At 492 Paras. C-D (Sc)
36. Isah V. State (2007) Nwlr (Pt. 1049) 582 At 614, Paras. A-B (Ca)
37. Zabusky V. Isreali Aircraft Ind. (2008) 2 Nwlr (Pt. 1070) 109 At Pp. 133, Paras. F-G
38. U.B.N. Plc V. Chimaeze (2007) All Fwlr (Pt. 364) 303 At 318 Para. E (Ca)

TEXTS

1. W.E. Peel & Goudkamp, ‘Winfield and Jolowicz on Tort’ (2014) 19th Edition, Published
by Thomson Reuters (Professional) UK Limited.

DATED 24th DAY OF AUGUST , 2023

SETTLED BY:

_______________________

J.O Yusuf
Counsel for the Respondent,
Flawless Chambers,
Beside Namlas Library,
Ahmadu Bello University,
Zaria, Kaduna State.
FOR SERVICE:
The Appellant,
Chief Ibrahim,
Off Ibeju Road,
Ikeja,
Lagos State.
C/O His Counsel.

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