• Court slams N6 million on UBA

The Federal High Court, Lagos Judicial Division, presided over by the Honourable Justice Y. Bogoro, has delivered a judgment in what, in some respects, represents a remarkably insightful application of the provision of fundamental right to privacy under section 37 of the 1999 Constitution; and particularly in the context of the relationship between a bank and its customers. A brief summary of the facts affords us a better understanding of the judgment.

Mr. Azuka Onwuka, the well-known journalist and columnist, had an account with the UBA Plc for over 20 years, but which had been dormant for several years. Meanwhile, the bank was deducting routine charges from the credit balance Mr. Onwuka had on the account. Then about the month of February 2022, Mr. Onwuka, who was discussing with a foreign bank about his engagement as its consultant, in a bid to forestall any possibility of a negative report, went out of his way to seek from his banks, including UBA especially, prior confirmation that he had no outstanding obligations to the banks.

But to his shock, UBA revealed to him the existence of a second account (which the bank had apparently subsequently created unbeknownst to him) and to which it had been making dubious debit entries which had risen to a total of about N50,000. The bank refused to give him any certificate of non-indebtedness unless he settled the debit entries on the strange account. Indeed, in the course of the protracted disagreement, the bank informed Mr. Onwuka that it had caused the entry of his name in the list of bank debtors at the Credit Bureau of the Central Bank of Nigeria (CBN) and that his name would only be removed upon his settlement of the controversial debt. His complaints to the CBN against the bank were met with no response and he was in the circumstances forced to pay the bank.
Mr. Onwuka then consulted Mr. Chijioke Okoli, SAN, the Principal Counsel at the commercial litigation firm of Delphi Law Advisory and Director of Ben Nwabueze Centre for Constitutional Studies and Rule of Law. From the court records, the bank, upon receipt of a letter of demand from Mr. Onwuka’s lawyers in September 2022, responded by its letter of October 2022 to plead for time to look into the matter and respond fully. Mr Onwuka chose to wait till the end of 2022, but the bank did not revert. By the end of January 2023, he eventually directed his lawyers to proceed with the suit, and in February 2023, Mr. Okoli commenced a fundamental rights enforcement action against UBA claiming the following reliefs:

1. A DECLARATION that the Respondent’s unilateral opening of a current account number 1003293912 for and in the name of the Applicant and purportedly operating same for him notwithstanding the absence of any consent constitute violations of his data privacy which is an aspect of the fundamental right to privacy enshrined and protected under section 37 of the Constitution of the Federal Republic of Nigeria;
2. A DECLARATION that the Respondent’s abuse of its position as a financial institution patronized by the Applicant through the imposition upon him of a second current account by which account it unlawfully assumed the position of a tribunal and forcibly debited and extorted payment from him of his money constitutes gross violations of fundamental right to fair hearing and property inherent in the expropriated money and contrary to sections 36 and 44 (1) of the Constitution of the Federal Republic of Nigeria and article 14 African Charter on Human and Peoples Rights;
3. AN ORDER for immediate payment of the sum of N100,000,000:00 (One Hundred Million Naira) as general/exemplary damages by the Respondent to the Applicant;
4. AN ORDER for the immediate payment of the sum of N5,000,000:00 (Five Million Naira) by the Respondent to the Applicant as cost of the action;
5. AN ORDER for the tender of written unreserved apology by the Respondent to the Applicant for the humiliation, grief and annoyance it caused him in the circumstances of this case; and
6. SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.

The processes were served on UBA with the case fixed for hearing on April 18, 2023. Although the time for it to respond had expired on the date of hearing, UBA had not filed any counter-affidavit or any other process to resist the suit. Its lawyer on the day perfunctorily applied for an adjournment. Mr. Okoli opposed the application for adjournment, and the court agreed with him that the application had no merit whatsoever and dismissed it. The Court then heard Mr. Okoli on the substantive application and adjourned for judgment on May 26, 2023. Before the date of the scheduled judgment, UBA’s lead counsel and notable human rights lawyer, Chino Obiagwu SAN, filed multiple applications essentially to set aside the proceedings of April 18, 2023 and to challenge jurisdiction of the court.

Instead of the scheduled delivery of judgment, the Court on May 26, 2023 heard arguments on the multiple applications filed by counsel for UBA and thereafter adjourned the ruling together with the judgment which it went on to deliver on July 10, 2023. Delivering judgment, the Court agreed with Mr. Onwuka’s lawyers that UBA’s applications were a frivolous abuse of process designed to arrest the judgment of court and that, amongst other vitiating factors, were caught by the principle of issue estoppel; its earlier decision refusing adjournment which had not been appealed against making it impossible for the case to be reopened. It then dismissed the applications accordingly and proceeded to deliver judgment granting Mr. Onwuka’s claims, though awarding the reduced sum of N3 million as damages and additional N3 million as costs of the action.

Sources close to Mr. Onwuka disclosed that he is conferring with his lawyers about appealing against the quantum of damages given the unchallenged evidence on the issue and the gravity of the loss and damage suffered; particularly the defamation of his character with his projection to the credit bureau as a debtor founded on an otherwise inexistent bank account and loss of his consultancy contract from which he stood to make over $150,000 annually. We are yet to get UBA’s response to the epochal judgment which is bound to influence the attitude and conduct of Nigerian banks towards handling and usage of their customers’ personal data.