LEGAL REMEDIES FOR INJURIES TO BODY, PROPERTY, REPUTATION,BUSINESS OR RELATIONSHIP IN NIGERIA

There are conducts and statements with the potential of inflicting  physical, social, psychological and economic damage on people.This edition of Akintunde Esan’s Legal Illumination is illuminating on  the unscrupulous conducts and statements usually causing harm  to the body, property, reputation, business and relationship of people of which the victims of the wrong are entitled to seek for compensation (damage) from the wrongdoer in a court of competent jurisdiction, including an order of court (injunction) restraining the wrong doer from continuing with the unscrupulous acts or statements.

1.	Battery	Intentional application of force to another person.
2.	Assault	Intentional putting of another in fear of imminent battery.
3.	False Imprisonment	To detain a person in a place or restrain a person’s movement it includes the instigation of the Police to arrest and detain you without reasonable or probable cause.
4.	Negligence	Failure to take care of a person or thing which you owe a duty to take care of which resulted into injury to the person or thing or loss, e.g. a teacher and a student, doctor and patience
5.	Malicious Prosecution	Where a person maliciously without reasonable and probable cause uses the Police or any Government agency against you to initiate criminal proceedings against you which ends/terminates in your favour and which results in damages to your reputation, person and property.
6.	Malicious Falsehood	This is the making of a false statement by one person against the person or property of another person which is calculated to cause that other person damage and as a result of which he actually suffered damages.
7.	Trespass to Land	Where another without lawful justification or without your invitation or permission: a. Enters upon your land, or b. Remains upon your land, or Directly places or projects any material objects upon your land.7.
8.	Conversion	Where another exercise temporary or permanent right or dominion of ownership on your property. To deprive you of the possession of your chattel/property e.g. to use or take or give away or destroy your property without your permission.
9.	Detinue	Failure to release property kept in the custody of another on demand.
10.	Nuisance	Interference with the use and the enjoyment of your property, e.g. unreasonable noise or smell emanating from your neighbouring land, obstruction to your right of way or right to light, an object or activity of nearby building causes material damage to your property.
11.	Defamation	Defamation includes statements which tends: a. To lower you in the estimation of right-thinking members of society generally; or b. To expose you to hatred, contempt or ridicule; or c. To cause other persons to shun or avoid you; or d. To discredit you in office, trade or profession; or e. To injure your financial credit or standing Libel: Defamation in a permanent form such as written or printed words Slander: Defamation in a transient form such spoken words or gestures
12.	Deceit	When you rely on a false statement made to you believing it to be true and you suffer damage thereby.
13.	Passing off	The selling or marketing of a product or carrying on of a business in such a manner as to misled the public into believing that the product or business is that of you own.
14.	Enticement	Persuading, inducing, inciting or procuring the wife of another without lawful justification to leave and remain apart from her husband.
15	Harbouring	Giving shelter to an errant/ wayward wife.

REMEDIES Injunction: An order of court restraining the wrong doer from continuing to commit the civil wrong. Damages: Damages is Money claimed by or ordered to be paid to a person as compensation for loss or injury he has suffered following a tort or a breach of contract or civil wrong. In addition to an injunction you are entitled to an award of damages or for an order directing the other party to pay you damages or compensation for the injury suffered. Special Damages: Mathematical calculation of all expenses incurred e.g. medical expenses, solicitor’s fee and material or financial loss suffered. General Damages: Losses that cannot be mathematically calculated but estimated such as pain and suffering, loss of enjoyment of life, loss of expectation of life, loss of earning or future earning, injury to your dignity, nervous shock, trauma. Aggravated Damages: this is awarded in addition to actual damages when the wrong doer acted with recklessness, malice or deceit, cruelty, fraud, insolence and disregard for the law. It is meant to punish/penalize the wrongdoer or make him an example to others. © 2017 Akintunde Esan, Managing Partner, Ase Olodumare Chambers For further illumination on seeking judicial redress or remedy for the harm, injury or damage done to body, property, reputation, relationship or business, you are advised to contact: Akintunde Esan or the Law Firm of Ase Olodumare Chambers via the contacts on this Blog: Akintunde Esan’s Legal Illumination.  LEGAL REMEDIES FOR INJURIES TO BODY, PROPERTY, REPUTATION, BUSINESS OR RELATIONSHIP IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

ILLUMINATION ON RAPE AND OTHER SEXUAL OFFENCES IN NIGERIA

1. Introduction

 

Sexual aggression constitutes a violation of the victim's fundamental human rights, as it often involves detaining, restraining of the movement and physical assault of the victim.

It is a form of assault on the dignity of the victim/survivor by a sociopath who sees women most especially as a sexual territory to be brutally subdued and looted. 

Rape is a sexual aggression and the effect on the victim is very deep. Most of the victims suffer the pain in grave silence, in order not to subject their dignities to further assault by those who in most cases see them as accomplices rather than victims of sexual aggression or violence. 

This edition of Akintunde Esan’s Legal Illuminations focuses on providing illuminations on Nigerian jurisprudence on rape and some relevant provisions of the law on sexual offences, in order to provide a first aid legal assistance to the victims/survivors and prosecutors of rape and sexual violence in Nigeria. 

2. Definition and the Nature of the Offence of Rape[1]

 

"The act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Consent in this context must be devoid of any form of external influence. A child who is under age is not however capable of giving consent. Rape is by nature grave, devastating, traumatic; it also reduces the totality of the victim's personality. 

Several definitions given to rape are all characterized by an absence of consent as a common feature. The Nigerian Supreme Court has defined rape in a number of cases as:

''An unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent."

"an unlawful carnal knowledge of a woman or girl without her consent or with her consent if the consent is obtained by force or by means of threat or intimidation of any kind or by fear or harm, or by means of false and Fraudulent representation as to the nature of the act or in the case of a married woman by personating her husband."

In summary therefore, rape can be interpreted as an unlawful carnal knowledge or non-consensual sex; that is, penetration without consent. 

3. The Facts which must be proved to Establish the Offence of Rape[2]

 

"The law is settled and well-grounded that the prosecution has the burden and duty to prove the accused person guilty of the following ingredients in order to sustain the conviction of the offence of rape: 

a) that the accused had sexual intercourse with the victim; 

b) that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation; 

c) that the victim was not the wife of the accused; 

d) that the accused had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not. 

e) that there was penetration. 

4. The Most Essential Ingredient in the Proof of Rape

 

The most essential ingredient of the offence of rape is penetration, the extent no matter how slight will serve sufficient proof. It is well accepted and settled that penetration, with or without emission, is sufficient even where the hymen is not ruptured. The slightest penetration has served as sufficient to constitute the act of sexual intercourse[3].Hymen is defined as: "the piece of skin partly covering the vagina of a woman who had never has sex[4]". 

5. What amounts to Sufficient Penetration in Proof of Rape

 

Nigerian Case law is replete with authorities that even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Thus, even where penetration was proved but not of such a depth as to injure the hymen, it has been held to be sufficient to constitute the crime of rape[5]. 

Thus, it is settled that, the offence of rape is deemed complete, upon proof of penetration of the penis into the vagina. In the English case of R. U. Marsden[6] it was held that emission is not a necessary requirement to prove penetration. 

It should be noted that, the discharge of "whitish", "greenish", "reddish" or whatever colour of fluid in a rape offence, is not considered credible evidence for establishing the offence of rape[7]. 

6. Does the Law Requires Witnesses to Prove Rape

 

On whether the proof required to establish the offence of rape must be based on an independent credible corroborative evidence. It should be noted that no law in Nigeria, as of now that says that corroboration is necessary. It is however, desirable to get the evidence of the prosecution strengthened by other implicating evidence against the accused.[8]However, whether a particular evidence can be corroborated, is for the trial Judge to decide[9]. 

7. Whether the Sworn Evidence of a Minor requires Corroboration

 

The law is trite and well settled that a minor needed no corroboration of her evidence which was sworn on oath. In the Supreme Court case of Ogunbayo v. the State (supra) it was held that a sworn evidence of a minor requires no corroboration[10]. Thus, it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. 

In Upahar & Anor v. State (2002) LPELR-5937(CA) ;  (2003) 6 NWLR (Pt. 816) 230 that in Nigeria, a person cannot be convicted of rape of a girl under 14 years of age upon the uncorroborated testimony of one witness[11].

 

8. Relevant Statutory Provisions on Rape and Sexual Offences

 

a) The Crime of Rape under the Criminal Code Act

 

The Criminal Code Act applies in the Southern States of Nigeria. Section 357 of the Code defines rape thus:

“Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of false threats or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act, or in case of a married woman, by impersonating her husband is guilty of an offence called rape”.

b) Carnal knowledge

 

When the term "carnal knowledge" or the term "carnal connection" is used in defining an offence, it is implied that the offence. so far as regards that element of it, is complete upon penetration. "unlawful carnal knowledge" means carnal connection which takes place otherwise than between husband and wife[12]. 

 

c) Immature Age

Under Section 30 of the Criminal Code a person under the age of seven years is not criminally responsible for any act or omission. A person under the age of twelve years is not criminally responsible for an act, omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.    

A male person under the age of twelve years is presumed to be incapable of having carnal knowledge, though he may, be convicted of indecent assault[13]. 

d) The Crime of Rape under the Penal Code Act 

 

The Penal Code Act applies in the Northern States of Nigeria. Section 282 and 283 of the Penal Code. No. 18 of 1959, designated as Cap 89 in the Laws of Northern Nigeria, 1963, relate to the offence of rape and its punishment. The Sections provide as follows: 

282 (1) A man is said to commit rape who, save in the case referred to in Sub-Section (2) has sexual intercourse with a woman in any of the following circumstances: 

(a) against her will: 

(b) without her consent; 

(c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; 

(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; 

(e) with or without her consent, when she is under fourteen years of age or of unsound mind; 

282 (2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty. 

From the above provisions of the Criminal and Penal Codes, it is glaring that under Nigerian law:

• only a man is capable of committing the crime of rape.
• although a woman cannot commit the offence of rape under the Penal Code Act, she may however be charged by the prosecution with abetting rape under section 83 of the Code.
• the use of the term “carnal knowledge” under the Criminal Code Act suggests that penetration of the vagina could be done by penetration with a foreign object, while the use of the term “sexual intercourse” under the Penal Code Act suggests that only a penis can penetrate a vagina.
• Whereas a male person under 12 years old is presumed incapable of having carnal knowledge under the Criminal Code Act, there is no such provision the Penal Code Act. 
• There is, therefore, nothing to stop the prosecution from charging a child over 7 years of age, for example, for rape if it can be shown that he has attained a sufficient maturity of understanding to judge the nature and consequence of his act.
• Consent is an act of reason and involves a presumption that the person giving a consent has weighed up the pros and cons of the matter which she has consented.

9. Attempt to Commit Rape

Under section 218 of the Criminal Procedure Code Law of Northern Nigeria, it was held that, the learned trial Judge, had power to convict the 1st appellant for attempted rape, in so far as the ingredients of the full offence of rape are not satisfactorily established.[14]

 

10. Punishment of Rape

 

Any person who commits the offence of rape is liable to imprisonment for life, with or without caning. S. 358.Criminal Code Act

 

Whoever commits rape, shall be punished with imprisonment for life or for any less term and shall also be liable to fine. S. 283 Penal Code Act.

 

Any attempt to commit the offence of rape or sexual assault by penetration commits a felony and is liable on conviction to imprisonment for fourteen (14) years 

Any person who attempts to commit the offence of rape is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning. S. 359. Criminal Code Act.

In Lagos State under S.260 of the Lagos State, Criminal Law, 2011 (Laws of Lagos State, 2015) any man who has unlawful sexual intercourse with a woman or girl without her consent,commits the offence of rape and is liable on conviction to imprisonment for life.

Any person who has sexual intercourse with a child commits a felony and is liable on conviction to imprisonment for life. S.137 of the Lagos State, Criminal Law ,2011.

11. Marital Rape

 

There is no provision for marital rape in Nigerian law in as long as the wife has attained to puberty.

In R. v. Miller[15], it was held that until that valid subsisting marriage is dissolved; the husband cannot be convicted of rape.

12. Whether only a Woman can be Raped

 

The wordings two major criminal codes in Nigeria, the criminal and penal Codes seem to suggest that only a woman or girl may be raped and S.360 of the Criminal Code also suggest that only the female gender can suffer indecent assault from its wordings that: 

“Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour and is liable to imprisonment for two years.” 

 

However, under the Lagos State Criminal Law, 2011 the offences of sexual penetration without consent, sexual assault and harassment are not limited to the male gender alone but include both genders by the use of the phrase “any person” which is unisex. Section 265 criminalised the engagement in sexual activity without the consent of the other person:

“any person who causes another to engage in a sexual activity without that other person’s consent commits a felony and is liable on conviction to imprisonment for five (5) years ” and “where the sexual activity caused involved sexual penetration, the offender commits a felony and is liable on conviction to imprisonment for life”

13. Sexual Assault by Penetration other than Vaginal Penetration

 

It should be noted that while the Criminal and Penal Codes do not recognise the penetration other than vaginal penetration as one of the elements which may constitute the offence of rape, it is a crime under Section 261 of the Criminal Law of Lagos State to sexually penetrate any opening in the body of another without the consent of the person:

“Any person who penetrates sexually, the anus, vaginal, mouth or any in the opening in the body of another person with a part of his body or anything else, without the consent of the person commits a felony and is liable on conviction to imprisonment for life.”

This section seems to include female-male rape, male-male rape, female-female rape.

 

14. Sexual Assault  without Penetration

 

Any person who sexually touches another person with any part of his body or with any object without his consent commits felony and is liable on conviction to imprisonment for three (3) years. S.263

 

15. Sexually Assault by Persons in Positions of Authority

 

Any consent to sexual intercourse purportedly given by a girl under the age of 16 to her teacher, guardian or any person entrusted with her care or education is not valid consent[16]. 

16. Sexually Harassment

 

Sexual harassment is unwelcome sexual advances, request for sexual favours, and other visual, verbal or physical conduct of sexual nature which when submitted to or rejected- 

a) Implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interfere with the person’s work or educational performance; 

b) Implicitly or explicitly suggests that submission to or rejection of conduct will be a factor in academic or employment decisions; or 

c) Creates an intimidating hostile or offence learning or working environment.

Any person who sexually harass another commits a felony and is liable on conviction to imprisonment for three (3) years. 

17. CONCLUSION

 

Obviously, there is the need to review the laws on rape and sexual violence in Nigeria to reflect modern day sexual realities, where either of the genders can be the sex aggressor using the penis, breast, fingers, mouth or any other body parts as well as sex objects such as sex toys. 

Have you been raped or falsely accused of raping and thus confused or feeling humiliated and you need to pour out your mind to an understanding legal mind for guidance in seeking for redress, you may contact Akintunde Esan or Ase Olodumare Chambers for further illumination on your predicament. 

Akintunde Esan is a top-rated leading online legal consultant in Nigeria. He is the Managing Partner, at Ase Olodumare Chambers, a Lagos based  Law Firm.

ILLUMINATION ON  RAPE AND OTHER SEXUAL OFFENCES IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

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[1] See Per Ogunbiyi, J.S.C. ISA v. Kano State (2016) LPELR-40011(SC), Pp. 10-11, Paras. D-D.

[2] See Ogunbayo V. State (2007) 8 NWLR (Pt 1035) 157; Upahar v. State (2003) 6 NWLR (pt 816) 230; State V. Ojo (1980) 2 NCR 391; Okoyomon V. State (1973) 1 SC 21; State V. Anolue (1983) 1 NCR 71 and Iko V. State (2001) 14 NWLR (Pt.732) 221.

[3] See Iko V. State, Ogunbayo V. State and State V. Ojo (supra) ; Jegede V. State (2001) 14 NWLR (Pt.733) 264.; Per Ogunbiyi, J.S.C. ISA v. KANO STATE (supra) P. 12, Paras. D-F

[4] See Oxford Advanced Leamer's Dictionary, Special Edition at page 585." Per OBADINA, J.C.A. Upahar & Anor v. the State (2002) LPELR-5937(CA) P. 27, Paras. B-C

[5] See: The State v. Ojo (1980) 2 NCR 391 at 395; Jegede V The State (2001) 7 SCNJ 135 at 141.

[6] (1891) 2 QB 149 at 150, per Lord Coleridge, C.J.

[7] Per Muhammad, J.S.C. Isa v. Kano STATE (2016) LPELR-40011(SC), P. 30, Paras. B-E

[8] See: Reekie V. The Queen (1954) 14 COACA 501 at 502; State V. Ojo (1980) 2 NCR 391; Ogunbayo V. State (2007) 8 NWLR (Pt.1035) 157; Per Muhammad, J.S.C. Isa v. Kano State (supra), P. 30-31, Paras. F-A

[9] per Ogbuagu, J.S.C. Ogunbayo V. The State (2007) LPELR-2323(SC) P. 20, paras. B-C.

[10] Per OGUNBIYI, J.S.C. Isa v. Kano State (supra) (P. 16, Paras. C-D)

[11] See section 218 of the Criminal Code

[12] Section 6

[13] See section 176 of the Criminal Procedure

[14] Upahar & Anor v. the State (supra) Per Obadina, J.C.A.(P. 37, Paras. A-B)

[15] (1954) 2 282

[16] Section 283 Penal Code Act

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GROUNDS FOR GRANTING DIVORCE IN NIGERIA  

CONTRACT OF INSURANCE AND INSURANCE CLAIMS IN NIGERIA

Introduction

 

A contract of insurance and the making of insurance claims usually involve the insurer, insured, insurance brokers, third party claimants and solicitors. This edition of Akintunde Esan’s Legal Illumination seeks to provide useful hints to these insurance service providers and receivers on the conditions necessary to constitute a valid contract of insurance and insurance claims in Nigerian Insurance jurisprudence.

1. Formation of Contract of Insurance

 

a) Non-marine Insurance Contracts

 

In non-marine insurance contracts,  the usual practice is for the proposer to complete, sign and return the proposal form to the insurers, there is no legal necessity on his part to complete any proposal form before a valid and enforceable contract may arise. It is only in marine insurance transactions that writing is a conditio sine qua non for an enforceable contract to arise. 

b) Marine Insurance Contracts

 

A contract of marine insurance is a contract of indemnity and hence the policy and or insurance certificate bears the signature of the insurer only. 

The law, in so far as non-marine insurance transactions are concerned, is that even an oral contract of such insurance is valid so long as it is reasonably clear that there is a definite intention on the part of the parties to enter into such a contract provided, however, the parties concerned are in consensus ad idem on the fundamental essentials of such insurance contract. Ngillari v. NICON (1998) LPELR-1989(SC) per Iguh J.S.C. (Pp. 38-39, Paras. B-A)

 

c) Acceptance of Insurance Proposal

 

A contract of insurance should be one of utmost good faith, “uberima fidei”. To constitute a contract of insurance therefore, there must be an unqualified acceptance by the other party. In other words, a prima facie contract of insurance only comes into existence the moment an insurance proposal in the normal form is accepted unequivocally without qualification by the insured. Industrial and General Insurance Company Limited v. Kechinyere Adogu (Mrs.) (infra) per Aji, J.C.A.(P. 22, paras. D-F)

 

d) Payment of Insurance Premium

 

The fundamental purpose of an insurance contract is to give cover to an insurance risk. Section 50(1) and (2) of the Insurance Act makes payment of insurance premium a condition precedent to a valid contract of insurance. 

e) Interpretation of Statute - Section 50 (1) of the Insurance Act 2004

 

The provisions of section 50(1) of the Insurance Act provides as follows: 

“The receipt of an insurance premium shall be a condition precedent to a valid contract of insurance and there shall be no cover in respect of an insurance risk, unless the premium is paid in advance.”

In Industrial and General Insurance Company Limited v. Kechinyere Adogu (Mrs.) (2009) LPELR-15093(CA) Aji, J.C.A. at Pp. 20-21, paras. E-F held that:

“Section 50(1) of the Insurance Act is clear and unambiguous. It is simply to the effect that the receipt of an insurance premium is a condition precedent to a valid contract of insurance, and there is not cover in respect of an insurance risk unless the premium is paid in advance. In other words, a valid insurance contract is made when a premium for the insurance is paid in advance by the insured."

f) It should be noted that, a contract of insurance may involve merely a promise to pay the premium. It is not the law that there must be implied in a contract of insurance a provision that the right of indemnity by the assured is conditional on his previous payment of the premiums. See National Insurance Corporation of Nigeria v. Power & Industrial Engineering Company Ltd. (1986) LPELR-1965(SC) Per Obaseki, J.S.C. at P. 42, paras. D-F.

 

2. Subject Matter of the Contract of Insurance

 

Where the subject matter of the contract of insurance had ceased to exist before the contract of insurance is concluded, the contract is void. See LEADWAY ASSURANCE CO. LTD VS. J.U.C LTD (2005) 5 NWLR (PT. 919) 539 AT 555-556.

 

3. Premium to be Arranged

 

The words 'Premium to be arranged' have been held to mean premium to be agreed. Libercan Insurance Agency Inc. v. Mosse (1977)2 Lloyds Rep 560 QBD. at 568. The clause does not contemplate any alteration in the terms of the insurance other than in respect of premium. National Insurance Corporation of Nigeria v. Power & Industrial Engineering Company Ltd. (1986) LPELR-1965(SC) Per Uwais J.S.C. (P. 42, paras C-D)

 

4. Insurance Broker

 

An insurance broker is not the agent of the insured but that of the insurer since the insurer usually pays commission to the broker. Unity Kapital Assurance Plc v. Akut Investment Limited.

 

Where the parties contract through an agent, in this case a broker, the incidences of the contract between the insured and the broker and between the broker and the insurer are distinct from that between the insurer and the insured. This is because once the insured pays his premium to the broker he has met his obligation to the insurer and the insurer cannot resile from the contract whether or not the broker remits the sum paid to the insurer. Shoreline Liftboats Nigeria Ltd. & Ors v. Premium Insurance Brokers Ltd. & Anor (2012) LPELR-9795(CA) Per Agbo, J.C.A at P. 10, paras. B-D.

 

5. Unforeseen Future Occurrence

 

It is trite that a contract of insurance is meant for unforeseen future occurrence and not for an incident that has occurred. See Ajaokuta Steel Co. Nig v. Corporate Insurers Ltd (supra), 

6. A Third Party Claiming against an Insured in Respect of a Risk Insured Against

 

The common law position is that a third party cannot join an insurer but the position has since changed by legislation. See the case of Unity Life and Fire Insurance Co. v Ladega (1996) 1 NWLR (Pt.427) where OGUNTADE JCA (as he then was) held as follows:

"Under the common law, the Plaintiff in this matter, could not have joined the appellant as a party to the suit brought against the persons said to be responsible, for the Plaintiff's injuries. However, Section 11 of the Insurance (Special Provisions) Decree No.40 of 1988 altered the position. The Section provides: "Where a third party is entitled to claim against an insured in respect of a risk insured against, he shall have a right to join the insurer of that risk in an action against the insured in respect of the claim: provided that before bringing an application to join the insurer, the third party shall have given to the insurer at least thirty days notice of the pending action and of his intention to bring the application."

It should be noted that though, the argument that the insurer cannot be sued along with the insured is not correct, doing so however is subject to some conditionalities. Per NIMPAR, J.C.A. (Pp. 41-42, paras. C-D) DAREGO v. A.G. LEVENTIS NIGERIA LTD & ORS (2015) LPELR-25009(CA).

 

7. A Passenger Vehicle

 

"A passenger vehicle" was defined in section 2(1) of the Motor Vehicles (Third Party Insurance) Act as "a motor vehicle used for carrying passengers for hire or reward", so that it is only if the person is being carried for hire or reward that an insured must be covered by a policy. See Lion Of Africa Insurance Company Ltd v. Mrs Stella Anuluoha (1972) LPELR-3181(SC).

 

8. Compulsory Insurance

 

The question whether direct remedies against an insurance company is available to a third party within the range of compulsory insurance was answered by the Supreme Court in Lion Of Africa Insurance Company Ltd v. Anuluoha (supra) per Lewis J.S.C. at Pp. 8-9, paras. G-D thus:

"Subject to certain exceptions a policy is not required to cover liability in respect of the death of, or bodily injury to, a person being carried in or upon, or entering or getting into or alighting from, the vehicle at the time of the occurrence of the event out of which the claim arises. Anyone who travels as a passenger in a private car has, of course, a right of action against his host, if negligent driving of the host, or of the host's servant if he is driving within the scope of his employment, results in injuries to the passenger, but this may be a barren remedy if the host is insured only within the compulsory limits. Even if the host has a wider insurance, the direct remedies against the insurance company available to a third party within the range of compulsory insurance will not be open to the passenger."

Conclusion

 

The insurance service providers and receivers in need of further illuminations on the conditions necessary to constitute a valid contract of insurance or claim are advised to contact Akintunde Esan.

 

CONTRACT OF INSURANCE AND INSURANCE CLAIMS IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

WHEN IS A MEDICAL DOCTOR GUILTY OF NEGLIGENCE IN NIGERIA

A. Introduction

1. The medical profession is the most delicate of all professions because they engaged in the most delicate of all arts, which is the art of saving lives. As many lives have been saved due to the due diligence of some medical practitioners, so many lives have been lost due to the negligence of some medical practitioners. The focus of this edition of Akintunde Esan’s Legal Illuminations is when a Medical Doctor can be concluded to be guilty of negligence.

B. General Features of Negligence
 

1. Negligence generally, in law, connotes an omission or failure to do something which a reasonable man, under same circumstance, would do or doing of something which a reasonable and prudent man would not do. Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; (2008) 13 NWLR (Pt. 1104) page 307; Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt.1172) 67.
 

2. A reasonable man is a person who acts sensibly, does things diligently and takes proper, but not excessive, precautions. UITH V. Dr. Abegunde (2013) LPELR-21375(CA)per Ogbuinya, J.C.A. ,P. 39, paras. A-B. 
 

3. Negligence is a question of fact, not law, so that each case has to be viewed and decided from its peculiar facts. F.A.A.N v. W.E.S (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249) 219.Ltd.
 

4. In the case of Malister (or Donoghue) (Pauper) v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords invented three ingredients of negligence, which a Claimant must establish, thus:

a) that the defendant owed him a duty of care
 

b) that there was a breach of the duty; and 
 

c) that the breach caused him injury or damage.  
 

5. These three ingredients have since been judicially recognised and adapted as part of Nigerian jurisprudence on negligence. Agbonmagbe Bank Ltd. v. CFAO Ltd. (1967) NWLR 173 ; Abubakar v Joseph (2008) 13 NWLR (Pt.1104) 307. 
 

C. When a Medical Doctor can be found Guilty of Negligence
 

1. The great jurist, Lord Denning, in his book, The Discipline of Law, pages 237, 242 and 243 opined that : "A medical man, for instance, should not be found guilty of negligence unless he has done something of which his colleagues would say: "He really did make a mistake there. He ought not to have done it'
 

2. A medical Doctor cannot be concluded to be negligent simply because something happens to go wrong. He can only be found to be guilty of negligence when he falls short of the standard of a reasonably skillful medical man, “in short, when he is deserving of censure.”
 

3. In the case of Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173 where a needle got broken in the abdomen of the patient during surgical operation. It was held that the surgeons exercised their best medical skills and so not negligent.

4. The courts have long recognized that there is no negligence if a doctor exercises the ordinary skill of an ordinary competent man professing to have that special skill. The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill is the direction to the jury given by Mcnair J in Bolam v. Friern Hospital Management Committee (1957) 2 All England Reports 118 at page 122. Per Nwodo, J.C.A. (P.39, Paras. A-F) Abi v. CBN & Ors. (supra).
 

5. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.

6. The above standard is the test for which a doctors' function of diagnosis and treatment is considered. Per Nwodo, J.C.A. (P.39, Paras. A-F) Abi v. CBN & Ors. (2011) LPELR-4192(CA).
 

D. Vicariously Liability
 

1. It is settled law that, a hospital authority is vicariously liable for the negligent acts or omissions of the whole of its staff. Igbokwe v. U.C.H.B.M. (1961) WNLR 173. 
 

2. In Unilorin v. Akilo (2001) 4 NWLR (Pt.703) 246, the parties were sued jointly and severally in tortuous liability, for negligent treatment of the respondent carried out by the 3rd and 4th defendants who were employees of the appellant as Medical Doctors. At the time material to the suit they discharged their duties as medical Doctors. The Court of Appeal held that, while the 3rd and 4th defendants were discharging their duties as Medical Doctors, they were not under control or management of the appellant. They are therefore individually liable for any tort they might have committed in the course of discharging such duty. J.U.T.H. v. Ajeh (2006) LPELR-7665(CA) per Tsamiya, J.C.A.(P.25 , paras. E-G)

WHEN IS A MEDICAL DOCTOR GUILTY OF NEGLIGENCE IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

THE LAW ON COMMON DISPUTES BETWEEN BANKS AND THEIR CUSTOMERS IN NIGERIA

INTRODUCTION

Disputes between Bankers and their customers, whether savers or borrowers are inevitable like in any other commercial contractual transactions, due to risk factors which are not the focus of this Legal Illumination. Some of these disputes will of course be resolved at customer care desks or via emails or phone calls, while some will end up in the court of law for adjudication.

Bank customers as well as Bankers in Nigeria have lost billions of naira as result of engaging Lawyers who lack depth in Banks and Customers dispute jurisprudence. Thus, the focus of this edition of Akintunde Esan's Legal Illumination is on Nigerian jurisprudence on some of the issues of disputes  between Banks and their Customers in Nigeria.

A. BANKER AND CUSTOMER RELATION
 

1. Banker and Customer Contract
 

The relationship that exists between a banker and customer is one founded on a banker and customer contract with special usage peculiar with monetary or commercial transactions. It involves the use of special documents and terms such as collaterals, mortgages and debentures. I.O.M Nwoye & Sons Ltd v. C.C.B Plc. (1993) 8 NWLR (Pt. 310) 210. 
 

2. Status of Banker and Customer Relationship on Credit Balance
 

The relationship of a banker and customer is contractual. It is essentially that of a debtor to a creditor, in the case of credit balances. The bank undertakes to receive money and to collect bills for its customer's account. The proceeds so received are not to be held in trust for the customer, but the bank borrows the proceeds and undertakes to repay them. The customer on his part undertakes to exercise reasonable care in executing his written orders so as not to mislead the bank or to facilitate forgery. See: Atkin L.J. in Joachimson v. Swiss Bank Corp. (1921) 3 K.B. 110 at 127; Purification Techniques (Nig.) Ltd. v. Attorney General of Lagos State (2004) LPELR-7424(CA) 23-24, paras. F-F, per Galadima, J.C.A 
 

3. Status of Monies Standing to the Credit of Customer in Bank’s Account
 

Given the nature of the relationship between banker and customer and of the contract that exists between them. The customer has neither the 'custody' nor 'the control' of monies standing in his credit in an account with the banker. What the customer possesses is a contractual right to demand repayment of such monies. There is no issue of customer’s property in the credit balance of a bank account. See: Hirschhorn v. Evans (1938) 3 All E.R. 491; Joachimson v. Swiss Bank Corp. (supra); Foey v. Hill (1882) 2 HL Cas. 28; Yesufu v. A.C.B. (1981) 1 SC 74, (1981) 12 NSCC 36; Balogun v. N.B.N. (1978) 3 SC 155; (1978) 12 NSCC 36.

4. The Status of the Monies of Judgment Debtor Customer with Garnishee Banker
 

Monies in the hands of garnishee banker are not 'in custody or under the control' of the judgment debtor customer. Such monies remain the property in the custody and control of the banker; and payable to the judgment debtor until a demand is made. Hence, Order VIII rule 2(b) of the Judgments (Enforcement) Rules takes care of this by providing that 'garnishee proceedings may be taken where the debt is not yet payable in any court in which the judgment debtor could have sued the garnishee as aforesaid if the debt had been immediately payable. Purification Techniques (Nig.) Ltd. v. Attorney General of Lagos State (2004) LPELR-7424(CA) 24-25, paras. F-G, per Galadima 
 

B. TITLE DOCUMENT DEPOSITED AS COLLATERAL 
 

1. Deposit of Customer’s Title Document
 

Where a customer’s title document is deposited as collateral and the bank refused to grant the loan, the bank is under an obligation to return the tittle deed. If the bank retains it, it shall be liable to pay damages to the customers for wrongful detention. Royal Petroleum Co. Ltd. v. F.B.N Ltd. (1997) 6 NWLR (Pt. 510) 584.
 

2. Loss of Customer’s Title Document
 

The loss of the title document of a customer in the custody of a bank could give rise to tort of detinue or conversion. In an action for detinue, a customer can claim for specific restitution of the chattel, or in default, it value and damages for it detention up to the date of judgment. However, where the chattel is not profit-earning, it is extremely difficult to access the damages incurred by the customer. NEKA v. ACB (2004) 3 MJSC 118 at 152, B-C, per Uwaifo, JSC.
 

3. Court Order on Return of Customer’s Title Document
 

Where a mortgage deed has not been tendered in evidence or where there is evidence that the customer is still indebted to the Bank, it is improper for a court to order the Bank to return the title deed to the customer. U.B.N. v. Emole (2002) 1 MJSC 126 at 141, paras. B-C, per Ogundare JSC.
 

C. LIABILITY OF BANKS
 

1. Liability of Banks for Tort of Negligence
 

The basis of liability of a Banker for tort of negligence is the failure of the banker to exercise reasonable care and diligence to process cheque before payment. Ndoma-Egba v. ACB Plc (2005) 10 MJSC 93 at 131, paras. C-A
 

2. Vicarious Liability
 

A bank is vicariously liable for the fraud committed by its employee by tampering with the bank customer’s account.. U.B.A. Plc v. Okoro (2002) 10 NWLR (Pt. 774) 1

3. Refund of Customer’s Money

A bank is duty bound to refund customer’s money on failing to remit it as instructed by the customer. UBN v. Umeoduagu (2004) 11 MJSC 127 AT 145, paras. A-B, per Edozie,JSC
 

D. LOAN AND OVERDRAFT FACILITIES
 

1. The Difference between a Loan and an Overdraft Facility
 

A customer may borrow from a banker by way of loan or by way of overdraft. A loan is a matter of special agreement. An overdraft facility is not a loan in the sum approved which may be withdrawn at once and which is to be debited against the customer’s account. Rather, it is a credit facility to be enjoyed by the customer to the tune of the amount approved as the customer wishes.

In the absence of an agreement, express or implied from a course of business, bankers are not bound to allow their customers to overdraw their account. An agreement for overdraft must be supported by good consideration and it may be expressed or implied.  Halsbury’s Law of England (4 ed.)Volume 3, Page 115, paragraph 155; Bank of the North Ltd v. Bernand (1976 - 1984) 3 NBLR 104 at 109, paras. J-C
 

2. Application for Overdraft Facility
 

An application by a customer for overdraft or loan facilities from a bank is mere declaration of willingness to enter into negotiation with a view to entering into a contract. It cannot therefore constitute an offer, but at best an invitation to treat. Orient Bank of Nig. Plc v. Bilante International Ltd. (1997) 8 NWLR (Pt. 515) 37;Omega Bank (Nig.) Plc v. O.B.C Ltd. (2005) 8 NWLR (Pt. 928), 547 at 583, paras. D-E
 

3. Overdrawing a Bank Account
 

In the absence of fraud or any other criminal act, the act of overdrawing a bank account cannot give rise to a criminal liability.If a customer draws a cheque for a sum in excess of the amount standing to the credit of his current account, it is really a request for a loan.Afribank (Nig.) Plc v. Onyima (2004) 2 NWLR (Pt. 858) 654; Cooperative Bank Ltd. v. Otaigbe (1976-1984) NBLR 587(HC)
 

4. Letters of Credit
 

Conditions stated for opening letters of credit are binding on the bank and the customer respectively. Jeric Ltd v. Union Bank Plc (2000) 12 KLR (Pt. 112) 3205.
 

E. DEBT RECOVERY
 

1. Methods of Answering an Allegation of Indebtedness.
 

There are four probable methods of answering an allegation of indebtedness, these are:

i. To admit the debt

ii. To deny the debt

iii. To counter-claim against the debt

iv. To set off against the debt.

Air Via Ltd. v. Oriental Airline Ltd (2004) All FWLR (Pt. 212) 156 at 1582-1583,paras. H-A ,per Onu, JSC 
 

2. Admission of Indebtedness
 

Once a defendant admits indebtedness or the receipt of a loan, the burden as to repayment or as to the reason for non-payment, is on the defendant. Okoli v. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (Pt. 1053) 37 at 71 paras D-E.
 

3. Demand Notice or Letter for Payment of Debt
 

As a general rule, in an action for recovery of debt, the cause of action accrues upon demand for the payment of debt, if no demand is made, a cause of action does not arise and no action can be commenced. Kolo v. First Bank of Nig. Plc (2003) 3 NWLR (Pt. 806) 216.
 

The demand notice or letter for payment of debt must be signed by the company with its common seal and not by an Agent or Solicitor.Tate Industries Plc v. Devcom Ltd (2004) 17 NWLR (Pt. 901) 182 at 220; Section 409(a)CAMA .
 

It is an implied term in the relationship between a banker and its customer that, there should be no right of action for the payment of an overdraft until there has been a demand or notice given. Accordingly, no cause of action can arise in this type of transaction except and until there is a demand or notice given. Wema Bank Plc. v. Osilaru (2008) 10 NWLR (Pt. 1094)150 at 178 -179, paras. H-A
 

Be that as it may, it has been held that, where there is an expiry date for any credit facility in an agreement evidencing same, a written demand for payment to the debtor may be dispensed with after the said expiry date. However, the position with the surety is different in that, there should be a written demand on him depending on the terms of the suretyship or guarantee. Integrated Dimensional Systems (I.D.S) & 2 Ors. v. A.I.B Ltd (2002) 4 NWLR (Pt.758) 660
 

4. Oral Evidence of Debt
 

Oral evidence adduced in proof of a party’s indebtedness which is not contradicted, is sufficient to ground a claim for debt, even if documentary evidence such as a statement of account adduced in proof of the debt is rejected by the court or in the case. Trade Bank Plc. v. Chami (2003) 13 NWLR (Pt. 836) 158 at 218, paras. D-A.
 

5. Debt Collection by Police and other Law Enforcement Agent
 

It is settled law that, the police force as well as other law enforcement agents and institutions entrusted with the security of the nation and its people is/are no debt collector and should never be involved in such services. Law enforcement agents including the Police cannot be engaged for settlement of private or civil dispute like the collection of debts and enforcement of contract agreements. See Abdullahi v. Buhari (2004) 17 NWLR (Pt. 902) 278 at 303 para. A; Afribank (Nig) Plc v. Onyima (2004) 2 NWLR (Pt. 858) 654 at 679-680, paras. H-A 
 

6. Serious and Reasonable Debt Payment Proposal 
 

On the issue of the need for a bank debtor-customer to make serious and reasonable debt payment proposal as a gesture of good faith of intention to settle his indebtedness to his bank, the Supreme Court per Mohammed JSC, held in the case of Echaka Cattle Ranch Ltd. v. N.A.C Bank Ltd (1998) 3 KLR (Pt.59) 471 at 482, paras. E-G as follows:

“It is crystal clear that the appellant had not made any serious and reasonable proposal for the payment of what had already fallen due for payment of the loan the company received from the respondent. For how could one who is to pay N3,644,789.70 offer to make a down payment of N 50,000.00 only and payment shall be within two months of the date. Mr. Morphy wrote the letter of proposal for settlement and how could the Company be acting in good faith if it asks for rescheduling of its loan for 20 years ”
 

F. BANK RATES
 

1. Bank Rates issued by the Central Bank of Nigeria 
 

It has been held that, bank rate issued in circulars by the Central Bank of Nigeria is not a matter the court can take judicial notice of. However, it is a well known fact which the Supreme Court takes judicial notice of that interest rates are dependent on the policy of the Central Bank.No interest rate is static. It is not immutable. It varies depending on the nature of Government policy which follows the state of the economy. Daniel Holdings Ltd v. United Bank for Africa Plc (2005) 5 SC (Pt.II) 18 ; Kwajaffa & Ors. v. Bank of the North (2004) 8 MJSC 106 at 135, paras. B-C, per Pats-Acholonu; Section 15 Banking Act.
 

Where the terms of the agreement between the Bank and its customer are clear with regards to the agreed rate of interest and there is no provision for variations, the Banker cannot vary the agreed interest rate to accord with the guidelines of the Central Bank on interest rate. N.B.N Ltd v. A.T. Engineering Co. Ltd. (2006) 16 NWLR (Pt. 1005) 210
 

2. Compound Interest:
 

A bank has the power to charge compound interest on loans or other advances granted to a customer even where there was no express agreement on the rate of interest to be charged. This is because the customer is taken to impliedly consent to an interest to be charged to his account. Adetoro v. Union Bank Nig Plc (2008) 13 NWLR (Pt. 1104) 255 at 296, paras. D-E
 

3. Interest on Overdraft
 

Although, banks can continue to charge interest on any unliquidated loan or overdraft until the customer pays up, this is not absolute. Where there is a fixed expiry date for an overdraft, the agreed interest rate will only be applicable from the date the agreement came into effect up to the date the facility expired. I.D.S Ltd v. A.I.B Ltd (2002) 4 NWLR (Pt. 785) 660 ; United Bank for Africa Plc v. Lawal (2008)7 NWLR (Pt. 1087) 613 at 633, paras. B-E.
 

4. Pre and Post Judgment Interests
 

Banks are entitled to pre-judgment interest on debts as of right, while post-judgment interest is governed by statute. I.D.S Ltd v. A.I.B Ltd (supra)

G. EXCESS AND ILLEGAL BANK CHARGES
 

1. Claims for Refund of Excess or Illegal Bank Charges

Claim by bank customers for the refund of excess charges and/or illegal charges debited to their accounts by their Banks is rampant these days in court. A bank customer has the right to refund of bank charges not duly charged in line with the provisions of Central Bank of Nigeria “Guide to Bank Charges” The claims for refund of excess or illegal charges may include the following:

(a) Excess commission on turnover (COT)

(b) Excess overdraft Interest

(c) Excess loan interest

(d) Excess property search fee

(e) Illegal facility fee

(f) Illegal returned cheque fee

(g) Excess statement charge

(h) Illegal pre-disbursement fee

(i) Excess management fee

(j) Excess debenture search on company

(k) Excess cost on debenture charge

(l) Illegal CRC charge

(m) Illegal Solicitor’s fee

(n) Illegal credit Registry profile search fee

(o) Excess access online charge:

(p) Spurious withdrawals

(q) Interest not at prevailing CBNMRR/MPR

H. FOREIGN CURRENCY
 

1. Devaluation of Foreign Currency 
 

In a banker and customer relationship, the onus of proving how devaluation of foreign currency affected transactions between the banker and the customer, and that the banker is entitled to charge the customer with such devaluation lies on the banker as such facts are specially within his knowledge. UBN v. Emole (2002) 1 MJSC 126 at 137, para. G, per Ogundare, JSC.
 

I. DEED OF LEGAL MORTGAGE
 

1. The terms of the grant of a loan or overdraft facilities secured by a legal mortgage would be governed by the legal mortgage. Aderemi Isaiah Adegbola & Ors. v. UBA Plc. (2005)11 CLRN 111, per Rowland, JCA.
 

J. STATEMENT OF ACCOUNT
 

1. Relevant but not Sufficient Evidence
 

A bank statement of account is not sufficient explanation of debit and lodgments in a customer’s account to charge the customer with liability for the overall debit balance shown in the statement of account. Any bank which is claiming a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall overdraft balance was arrived at. Habib Nig. Bank Ltd. v. Gifts Unique Nig. (2004) 15 NWLR (Pt. 896) 405; Wema Bank Plc. v. Osilaru (2008) 8 CLRN 89 at 109, lines 20-5; 10 NWLR (Pt. 1094) 150.
 

2. Periodic Statement of Account
 

In a bank and customer relationship, it is the duty of the banker to send statements of account to the customer at regular interval as may be agreed upon by the parties. Hoston (Nig.) Ltd v. A.C.B. Plc (2002) 11 NSCQLR 195 at 214, per Ogundare, JSC.
 

Where a bank customer receives periodic statements of account and did not dispute the account as shown on the statements, the customer is deemed to have accepted same as correct. Thor v. FCMB (2005) 14 NWLR (Pt. 946) 697.
 

3. Debit Balance
 

Where a claim or defence or counter claim of a party is based on the debit balance in a statement of account, in order to succeed, such a party need to prove how the debit balance was arrived at. Anyakwo v. A.C.B (3) (1976) 2 SC at 62-64, per Fatai Williams,JSC ; (1976) NCLR 118 at 127.
 

4. Banker Consolidating the Accounts Owned by a Customer 
 

There is no doubt in law that a banker may consolidate the accounts owned by a customer in his own right, unless precluded by agreement, express or implied from the course of business from doing so, in order to ascertain and treat as the balance, the amount standing to the credit of the customer. It is a prudent way open to the banker to assess the financial worth of a customer. It is a different thing where a banker opens two accounts for a customer one in the customer's own name and the other in a business name or in the name of an incorporated body under his aegis or control. Joe v. Co-operative Bank (2003) 4 MJSC 171 at 187, paras. F-G , per Uwaifo, JSC.
 

5. Proof of Payment of Money into Bank  Account
 

Proof of payment of money into a bank may be proved either by the oral evidence of the person who made the payment personally to the bank or by the production of bank tellers or acknowledgement showing on the face of it that the bank had received the payment. First Bank Nigeria Plc v. Mainasara (2006) 2 NWLR (Pt. 909 ) 42.

K. BANK CHEQUES
 

1. The Obligation of Bank to Honour Customer’s Cheques 
 

A bank is bound to pay cheques drawn on it by a customer in legal form, provided, the bank has in its hands at the time sufficient and available funds for the purposes, or provided the cheques are within the limits of an agreed overdraft. It needs be emphasized that, there must be sufficient funds to cover the whole amount of the cheque presented. In the absence of special arrangement, there is, as a general rule, no obligation on the banker to pay any part of a cheque for an amount exceeding the available balance. The bank only contracts with the customer to honour cheques when he has “sufficient” and available” funds in hand. First African Trust Bank Ltd. v. Partnership Investment C. Ltd (2004) 2 MJSC 101 at 126 – 127, paras. G-A, per Iguh, JSC. 
 

2. Forged or Unauthorized Cheques
 

Under Section 24 of the Bill of Exchange Act 1882, a forged or an unauthorized cheque is inoperative. Ndoma-Egba v. ACB Plc (2005) 10 MJSC 93 at 133, para. A.
 

3. The issuance of a Dud Cheque
 

The issuance of a dud cheque is a crime and is punishable under the Dishonoured Cheques (Offences) Act with two-year jail term upon conviction. In the case of Fajemirokun v. Commercial Bank Nigeria Ltd. & Anor (2009) 2 NMLR 287, Tabai J.S.C, at page 299, para. 30, illuminated on the issuance of dud cheque in Nigeria thus:

"In the first place issuance of Dud Cheques is a criminal offence under Section 1 of the Dishonoured Cheques (Offences) Act Cap D11 Laws of the Federation of Nigeria 2004 and for which the Respondents were entitled to make a report to the Police."
 

4. Proving of the Offence of Issuing Dud Cheque
 

The prosecution in order to secure a conviction for the issuance of a dud cheque has the duty to prove:

a. That the accused obtained credit by him or herself

b. That the cheque was presented within three months of the date thereon; and

c. That on presentation the cheque was dishonoured on the ground that there was no sufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn

See Abeke v. State (2007) 9 NWLR (Pt. 1040) 411 at 429 -430, paras. G-B, per Tobi, JSC; Section 1 (i)(b) Dishonoured Cheques (Offences) Act Cap D11 Laws of the Federation of Nigeria 2004
 

L . JURISDICTION
 

1. Concurrent Jurisdiction
 

The Federal High Court has concurrent jurisdiction with the state High Courts in transactions involving an individual customer and his bank. FCMB v. NDIC (1999)2 NWLR (Pt. 591)333; NDIC v. Okem Enterprises Ltd (2004)7 MJSC 74,130 – 131, paras. D-A, per Kutigi ,JSC; Section 251 (1)(d) 1999 Constitution.
 

2. Exclusive Jurisdiction
 

An issue of banking that is not one of bank customer relationship should be squarely before the Federal High Court. Societe Bancaire Ltd v. Salvado De Lluch (2005) 1 MJSC 187 AT 201 -202, paras. G-E; Section 251 (1)(d) 1999 Constitution.
 

3. Dispute Between Two Banks
 

Where there is a dispute between two banks, the forum for resolution is not exclusive to the Federal High Court.The nature of the transaction and the capacity in which one of the banks related with the other shall determine the proper forum. FMBN v. NDIC (1999)2 NWLR (Pt. 591) 333 (SC)
 

M. JUDGMENT 
 

1. Stay of Execution of Money Judgment
 

Preservation of the res (judgment debt or money judgment) which is the corner-stone of application for stay of execution will be meaningless or defeated if the res is preserved in the hands of the judgment debtor on the sole ground that, he or she or it is rich. It will also amount to a glaring case of depriving a successful litigant of the fruits of the judgment. U.B.N. Ltd. v. Odusote Bookstore Ltd (1994)3 NWLR (Pt. 331) 129 at 152, paras. A-B.
 

The Court of Appeal in the case of Owena Bank (Nig.) Plc v. O.B.C. Ltd. (1998) 9 NWLR (Pt. 564) 129 at page 137, paras D-C, held that the decision in the case of Union Bank of Nigeria Plc v. Odusote (supra) was not meant to stifle the exercise of discretion by the Court and that the case was decided on the circumstances and peculiar facts of the case. Thus, the exercise must be based on the peculiar nature and circumstances of each case.

CONCLUSION
 

Banks' company secretaries/legal advisers in order to minimise losses suffered by banks in debt recovery cases in Nigeria are advised to engage lawyers with depth in commercial as well as bank and customer disputes.

In addition, in-house solicitors of banks should be legally knowledgeable enough to request for the legally required accounting evidence from their accounting departments.

Finally, bank customers who are not satisfied or convinced with the status of their account with their banks need to engage experienced accounting consultants to audit such accounts before engaging the services of a sound and experienced lawyer in bank and customer dispute litigations.

Akintunde Esan, Legal Practitioner/Consultant and Chartered Mediator - Managing Partner, Ase Olodumare Chambers, Lagos, Nigeria.
 

If you need further legal illuminations on any dispute with your Bank in Nigeria, you are advised to contact Akintunde Esan

THE LAW ON COMMON DISPUTES BETWEEN BANKS AND THEIR CUSTOMERS IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)