CASE TITLE: LUGARD v. ZENITH BANK PLC LPELR-82603(CA)
JUDGMENT DATE: 3RD DECEMBER, 2025
JUSTICES: BITRUS GYARAZAMA SANGA, J.C.A.
LATEEF ADEBAYO GANIYU, J.C.A.
ASMAU OJUOLAPE AKANBI, J.C.A.
PRACTICE AREA: BANKING LAW
FACTS:
This appeal borders on Banking Law.
This appeal emanated from the judgment of the Edo State High Court of Justice, holden in Benin City, delivered on the 3rd day of February, 2023.
The Appellant in the present appeal is a customer of the Respondent and is the holder of account number 2086407722 opened by her on 27/3/2015 and has since been operating it at the Respondent Bank without any complaint until 10/11/2020 when the Respondent allegedly permitted unauthorized withdrawal and/or transfer of money out of the claimant’s account into three different accounts, namely: (1) Account No. 0030388040 in Access Bank Plc in the name of Adelaja Adefemi, (11) Account No. 041197872, Access Bank Plc in the name of Ugaru Samuel and (111) Account No. 0049414613 in Access Bank Plc in the name of Ugaru Samuel. Based on this development, the Appellant mandated the Respondent to place restriction on the account, which was carried out by the Respondent. However, on 20/11/2020, the Appellant instructed the Respondent to remove the restriction placed on the account so that the Appellant will start to operate the account, which was complied with temporarily, but later, the Respondent, on her volition and without any Court order or directive to do so by the Appellant, froze the Appellant’s account between 29/6/2021 and 31/8/2021, which prompted the Appellant to visit the Respondent at its Airport Road Branch, Benin; fill transfer Form with mandate that money be transferred from her account to Asemota N. Kenneth, Sylvester etc. in order to meet the Appellant’s financial obligation, but was informed that the account had been frozen by the Respondent and that until it is unfrozen, the Appellant could not access money from that account.
According to the Appellant, the Respondent’s decision to unlawfully freeze her account is malicious and has caused her untold hardship and social degradation in the estimate of people that she owes financial obligation and was unable to meet same due to conduct of the Respondent. Hence, the institution of Suit No. B/309/21 against the Respondent by the Appellant wherein she claims the under-mentioned reliefs among others, namely:
” (a.) A DECLARATION that the act of freezing, suspending and/or placing restriction on the claimant’s account No. 2086407722 by the defendant without the claimant’s mandate and/or lawful order is a breach of the contractual relationship between the claimant and the defendant.
(b) A DECLARATION that the acts of the defendant in freezing, suspending and/or placing restriction in the claimant’s account No. 2086407722 without the claimant’s mandate and/or lawful order amount to malice, cruelty and unmitigated deprivation of claimant’s right to operate and draw money from the account bona fide as at when needed.
During trial of the case, the Appellant testified for her herself as the claimant and tendered four (4) documents marked as Exhibits A-D respectively while one Pene Egbuson, a banker testified on behalf of the Respondent and tendered one (1) document marked as Exhibit E.
The trial Court granted three out of the eight reliefs claimed by the Appellant who was the Claimant before the trial Court.
Dissatisfied, by the said decision, the Appellant on one hand appealed against the said decision to the Court of Appeal, while the Respondent filed a cross-appeal against same.sssss
ISSUES:
The Court determined the appeal on these issues:
(1) Arising from the totality of the pleadings and the evidence led in this action, whether the appellant did not establish and/or prove a case of malice against the respondent.
(2) Whether the finding of the Court below that the freezing of the appellant’s account for 48 hours by the respondent without the mandate of the appellant or lawful order of Court is not malicious which entitle the appellant to the reliefs sought in this appeal.
(3) Whether the failure of the Court below to consider the acts of the respondent unmitigated deprivation of the appellant’s right to operate and drew money out of the account as at when needed is not per versed.
The Court determined the cross-appeal on these issues:
“1. Whether the trial Court was right, to have relied on the admission or supposed weakness of the Cross-Appellant’s case, in granting the Declarative Reliefs sought by the Cross-Respondent
2. Whether the trial Court can grant the DECLARATORY RELIEFS sought by the Cross-Respondent, having regards to the fact that the reliefs sought, are not supported by any empirical evidence
COUNSEL SUBMISSIONS:
Learned counsel to the Appellant submitted that the decision of the trial Court as could be found at page 124 of the record to the effect that the act of the Respondent in freezing the Appellant’s account for 48 hours without her consent or any Court order to do so was not malicious because it was done to protect the Appellant’s account with the Respondent is perverse because the finding runs contrary to the evidence placed on record by the parties. See ABDULLAHI V. ADETUTU (2020) 3 NWLR (PT.1711) 338 @ 359, Paras C-E. Thus, counsel urges this Court to resolve the issue in favour of the Appellant.
Learned counsel refers this Court to paragraphs 12,13,14,15,16,17,18,19 and 20 of the Appellant’s statement of claim wherein the Appellant pleaded that the respondent suspended, froze the account of the Appellant without her consent, and thereby prevented her from withdrawing money from the account. Learned counsel went further to refer this Court to paragraphs 10-12 of the Respondent’s statement of defence which is contained at page 79 of the record wherein the Respondent admitted that it restricted the Appellant’s account between 30/8/2021 and 1/9/2021 without the Appellant’s mandate to do so, as could also be found in paragraphs 12-14 of the written deposition of the Respondent, which is contained at page 81 of the record. Respondent’s witness also gave evidence during trial as could be found at page 95 of the record of appeal to establish the Respondent’s pleading in this regard.
Therefore, counsel submitted that the decision of the trial Court in this regard which runs contrary to the pleading and evidence before it is perverse and malicious in nature. See Abdullahi v. Adetutu (Supra); ORJI V. AMARA (2016) 14 NWLR (PART 1531) 21 at page 60, paras. B-E; 61 @ Paras. D-G.
In addition, counsel submitted that to suspend or freeze the account of Bank customer, the mandate of such customer or Court order is very paramount. See AGBANLO V. UBA Ltd. (2007) 7nwlr (pt. 666) 534 @ 550 paras. E-G. According to the counsel, since the freezing of the Appellant’s account bothers on violation of his right, it follows therefore that malice has been established. More so, the Respondent did not communicate the suspension of the Appellant’s account to her and as such doing so can safely be said to be done with wrongful intent which is a ground for seeking for liability, as it is malicious in nature. See ORJI V. AMARA (Supra).
Learned counsel went further to submit that when a party proves his right to the reliefs claimed, the Court is bound to grant same. See ATIVIE V. KABEL MENTAL (NIG.) LTD (2008) 10NWLR (PT. 1095) 399 @ 422, Paras. C-D; Section 15 of the Court of Appeal Act; EZENNAKA V. C.O.P.; CROSS RIVER STATE (2022) 18NWLR (PT. 1826)369@400. Paras. A-C.; EZENWANKWO V. A. P.G.A. (2022) 18 NWLR (PT. 1863). 537 @ 545, Paras. C-H. and ATIVIE V. KABEL MENTAL (Supra).
Finally, learned counsel urges this Court to grant the Appellant’s prayers and resolve this Issue in favour of the Appellant.
Learned counsel to the Respondent submitted that apart from the fact that the Appellant’s case presented before the trial Court has nothing to do with the allegation against the Respondent restricting her account for 48 hours out of malice and that assuming it was the case, the Appellant has failed to prove that the restriction was done out of malice by the Respondent. See ODUWOLE V. WEST (2010) 10 NWLR (PT. 1203) 598.
According to the learned counsel, the Appellant has failed to prove that restriction was placed on the account with bad motive or ill will because the Respondent’s reason for restricting the Appellant‘s account was to safeguard the account from further fraudulent activities while a check was being carried out on the account. More so, according to the learned counsel, the Appellant never conceded to 48 hours, but rather insisted that her account was restricted from 29th day of June, 2021 to 31st day of August, 2021, which is a variance of her case before the trial Court. Hence, counsel submitted that the back and forth in the case presented by the Appellant sounds most unreasonable, illogical and unacceptable as such posture is forbidden by the law. See FOLKSYNTHESIS LTD. V. GAPUNA (2017) 8 NWLR (PT. 1566) 150; ADDO V STATE (2021) 12 NWLR (PART 1791) 427; CONOIL PLC V. SOLOMON (2017) 3NWLR (PT.1551) 50; ONAH V. SCHLUMBERGER (2018) 17 NWLR (PT. 1657) 84 and ORJI V. AMARA (2016) 14 NWLR (PT. 1531) 21.
Therefore, counsel submitted that the Appellant has failed to prove that the short restriction of 48 hours is malicious and assuming it does, since no monetary relief was claimed by the Appellant for the so- called malicious conduct of the Respondent, the trial Court cannot grant any monetary claim to the Appellant in this regard. Thus, counsel urges this Court to resolve this issue in favour of the Respondent.
Learned counsel submitted that the Appellant’s contention that the trial Court failed to consider that as a result of restriction placed on her account, the trial Court did not consider her right unfettered is baseless because according to the counsel, it was as a result of the restriction placed on the Appellant’s account that damages in the sum of N1,000,000,00 was awarded against the Respondent by the trial Court; and that which other right of the Appellant was allegedly flouted that she wants the trial Court to consider and award monetary damages on. Therefore, counsel urges this Court to resolve this issue against the Appellant but in favour of the Respondent and dismiss the Appellant’s appeal with substantial cost.
DECISION/HELD:
In the final analysis, the appeal succeeded while the cross-appeal was dismissed.
RATIO:
BANKING LAW – BANKING BUSINESS: Whether imposing a restriction on the account of a customer without his mandate and without providing notice of such action constitutes malicious conduct
“…I am of the calm view that as a result of unilateral and deliberate placement of restriction on the Appellant’s account by the Respondent, it is manifestly clear that the restriction was done with malice. See BAYAM V. AGANA (2013) ALL FWLR (Supra) @ 777, paras. D-G where this Court, Per SAULAWA, JCA (as he then was) where the erudite jurist held thus:
“Malice means, in law, wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is in the language of the law, malicious, and this legal age has etymology in its favour. The latin imilitia” means badness, physical or moral-wickedness in disposition or in conduct-not specifically or exclusively ill-will or malevolence, hence the malice of English Law, including all forms of evil purpose, design, intent, or motive
Malice in the legal sense imports (1) the absence of all elements of justification excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton or willful doing of an act with awareness of a plain and strong likelihood that such harm may result…”
In the light of the foregoing analysis, I am of the well-informed opinion that the conduct of the Respondent towards placing restriction on the Appellant’s account without her mandate and without communicating such action to her is malicious.” Per GANIYU, J.C.A.
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