IN THE HIGH COURT OF JUSTICE OF BENUE STATE OF NIGERIA

IN THE BENUE JUDICIAL DIVISION

HOLDEN AT MAKURDI
ON THE 24TH DAY OF MAY, 2018
HIS LORDSHIP HON. JUSTICE T.A. IGOCHE - JUDGE

SUIT NO: MHC/198/2014

BETWEEN:
KUME BRIDGET ASHIEMAR-------------------------------------- PLAINTIFF

AND

1. GUARANTY TRUST BANK PLC

2. UNITED BANK FOR AFRICA PLC --------------------DEFENDANT

JUDGEMENT

By a writ of summons filed on 20/5/2014 the Plaintiff sued the 1st defendant but by
Motion No. MHC/3067M/2015 filed on 30/10/15, the 2nd defendant was joined. The
statement of claim which was amended via motion No. MHC/4493M/2016 field on
5/10/16 and granted on 18/10/16 seek the following reliefs against the defendants
jointly and severally;
(i) An order directing the Defendants jointly and severally to forthwith refund
the sum of N90,000.00 (Ninety thousand Naira) debited/withdrawn from the
Plaintiff’s account in spite of the fact that the ATM which the Plaintiff carried
out the transactions did not dispense the said amount to the Plaintiff.
(ii) An order awarding to the Plaintiff against the Defendants jointly and
severally, damages of N10,000,000.00 (Ten Million Naira) for the untold
hardship and inconveniences suffered by the Plaintiff as a result of the
breach of the duty of care the Defendants owe the Plaintiff and/or breach of
the contract between the Plaintiff and the Defendants by the Defendants’
failure to make available to the Plaintiff moneys she attempted to withdraw
via ATM even though the Plaintiff had adequate funds in her account.
(iii) Interest rate on the judgment sum at the current interest rate per annum
from the 3/10/2013 to the date of judgment and thereafter interest at 10%
per annum as allowed by the High Court of Benue State (Civil Procedure)
Rules 2007 on the entire judgment sum from the date of judgment till the
entire judgment sum is finally liquidated.

The facts leading to this action, as pleaded by the Plaintiff, in summary, are that the
Plaintiff holds, maintain and operates savings Account No 0136120145 with the 1st
Defendant (Guaranty Trust Bank Plc) but on 3/10/2013, she used her Automated

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Teller Machine (ATM) card at the 2nd defendant’s ATM located at its North Bank
Branch, Makurdi to withdraw the sum of N20,000.00 without success as she was
informed via a message to the effect that she did not have sufficient funds in her
account; that the same information was given to her on 4/10/2013 when she tried to
withdraw N20,000.00 and even N10,000.00; that she was amazed because she had
been informed of her balance being N95,213.07 (Ninety-five thousand, two hundred
and thirteen naira, seven kobo) on 2/10/2013 when she withdrew N15,000.00 using
the same ATM; that upon her complaint to the 1st Defendant on 8/10/13, she
discovered that her account was debited in the sum of N90,000.00 for the three times
she attempted to withdraw N20,000.00 each on 3/10/13 and N20,000.00 and
N10,000.00 on 4/10/13 even though the money was not dispensed to her by the
ATM; that she was advised to till a form which she promptly did and then used the 1st
Defendant’s ATM to withdraw N5,000.00 that day: that all her efforts to recover the
N90,000.00 from the 1st Defendant’s proved abortive and that she has suffered
immense hardship; embarrassment and financial/economic deprivation by spending
transport fare going to and from the 1st Defendant’s in a bid to recover the money.

To prove her case, the Plaintiff testified alone and tendered Exhibit ‘I’ Her testimony is
as summarized above when cross examined by the 1st Defendant’s counsel, the
Plaintiff agreed that ATM withdrawals can be done only if one knows the PIN and that
she had been withdrawing money using the ATM card whose PIN is known to her
alone. Answering questions from the 2nd defendant’s counsel, the Plaintiff admitted
that she owed the Bank a duty to protect the ATM card and her PIN. She added that
she had been using that ATM successfully and that she received an SMS alert after
the transaction of 1/10/13 but did not get for the transactions of 3/10/13 and
4/10/13, neither did she request for receipt for the transactions on further cross
examination, she said that the transactions on 3/10/13 and 4/10/13 were done
between 7-8 aim but she could report the failure until 8/1013 because of the weekend
and the pressing issue she had on Monday following.

The 1st Defendant’s defence to the suit in her Amended Statement of Defence is that
the Plaintiff who has exclusive possession of her ATM card and knows her 4 digits
secret pin alone withdrew the sum of N90,000.00 on 3/10/13 and 4/10/13 vide 2nd
defendant’s ATM. The 1st Defendant’s called one witness in the person of Aondoaver
Ikyoh, her Relationship Manager as DW1. He adopted his deposition on oath which is
the same as the pleaded facts. He tendered Exhibits ‘2’ and ‘3’. When cross examined
by the Plaintiff’s counsel, he said that he had worked as an ATM custodian. He agreed
that the amount dispensed by the ATM will often times be less than the amount
recorded in the journal. He also agreed that it is possible that a customer’s account
will be debited by the ATM without the cash being dispensed. He admitted that
looking at Exhibit ‘3’, he could not see cash being received by anybody. He also agreed
that there is a Central Bank directive that all commercial Banks operating the ATM
should install cameras that will capture all the transactions by customers. On cross
examination by the 2nd Defendant’s counsel, DW1 said that he could not make a
conclusive statement on whether the 2nd Defendant’s complied with that CBN directive

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totally. He added that customers are given a window of up to 6 months to complain if
there are challenges with the ATM, which would be forwarded to the Reconciliation
Team, which would then forward it to the appropriate Bank; and that when the
Plaintiff complained, it was forwarded to the 2nd Defendant who replied that
transaction was successful. He said, the debits were sent from the 2nd Defendant and
to the 1st Defendant’s and it is the responsibility of the 1st Defendant to send an SMS
alert to the Plaintiff.

DW2 is John Obazee who testified on behalf of the 2nd Defendant whose defence is
that cash was presented to the Plaintiff on each occasion of her transactions in
question and that the 2nd defendant is full compliant with the CBN Guidelines for card
issuance and usage in Nigeria; but that due to power failure which occurred in the 2nd
defendants Bank sometime in 2014, the Hard Disk Drive of the ATM camera which
had stoned all the footages since 2011, crashed and that the copy that was given to
the Plaintiff was available. The DW2 tendered Exhibits 4,5 and 6 when cross
examined by the Plaintiff’s counsel, the witness said he did not see the Plaintiff taking
any money from the ATM. According to him, the duties of an ATM custodian include
balancing the records between the ATM and the I. Journal. He admitted that
sometimes the journal will bear more cash dispensed than what the ATM has
dispensed. He maintained that the CBN guideline on the devices the Banks should
have to capture customers collecting money was made in 2016. On further cross
examination by 1st Defendant’s counsel, he said that the I. Journal and camera
footage perform the same function. At the close of the case of the aprties, their
respective counsel filed written addresses.

For the 1st Defendant’s, leaned counsel, Olufunke Shankyura Esq formulated one
issue for determination as; whether or not the Plaintiff has proved her case upon a
preponderance of evidence as to be entitled to the judgment of this Honourable court.
She answered the question in the negative. Citing the case of AGI VS ACCESS BANK
PLC (2014) 4 NWLR (PT.1411) 121 at 154 paras E-F, counsel submitted that in an
allegation of Negligence, the Plaintiff is expected to plead and lead credible, compelling
and conclusive evidence to prove that;
(i) The 1st Defendant’s owed her a duty of care,
(ii) There was a breach of the duty, and
(iii) The breach caused her injury or damage

On the first ingredient, counsel submitted that the 1st Defendant’s has a duty of care
over the Plaintiff’s money in its custody but the Plaintiff has the duty of care over her
ATM card. She cited the cases of NIGERIAN PORTS PLC V B.P. PLC LTD (2002) 18
NWLR (PT. 1333) 454, OKOYE V KPAJE (1992) 2 SCNJ 290, (1992) 2 NWLR (PT. 226)
633 and ANEM BEEIOR JOSPEH VS. UNITY BANK PLC (unreported) suit No
MHC/412/2013 OF 22/12/2014 PER Kakian J. She submitted further that the
Plaintiff must plead negligence and give particulars of same and then establish same
by credible, reliable compelling and conclusive evidence. She cited the cases of
UMUDJE VS SPDC (NIG) (1975) 9-11 SC 155 and UNIVERSAL TRUST BANK OF

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NIGERIA V OZOEMENA referred to in AGI V ACCESS BANK (P. 164; Para F-H). She
maintained that the 1st Defendant’s was neither negligent nor careless in safeguarding
the Plaintiff’s account as only the Plaintiff is the custodian of the said ATM card.

On allegation of fraud, counsel submitted that fraud cannot crime and ought to be
proved beyond reasonable doubt even in civil cases. She relied on order 15 Rule 3 (1)
of the Rules of this court and the case of OMOTOSHO V OBADEIRO (2014) ALL FWLR
(PT. 145) 210 at 237 para A and 236 para F-H. For the third ingredient counsel
referred to section 131(1) and (2) of the Evidence Act Cap E 14 LFN to say that the
Plaintiff has a duty to prove her assertion but that she has failed to do so and in
consequence her claim of damages must fail as it has no pedestal to stand on. She
urged the court to dismiss the Plaintiff’s claim.

For the 2nd Defendant, two issues are formulated by learned counsel, F.M. Ebofuame
Nezan Esq. They are;
1. Whether the Plaintiff is a credible witness whose evidence should be believed
and relied upon by this Honourable court.
2. Whether Plaintiff has proved her case by preponderance of evidence adduced
before this Honourable court to warrant judgment in her favour against the 2nd
defendant.
In issue No 1, counsel answered the question in the negative for the reasons that; (i)
the narration by her of the facts and circumstances leading to this case are not
validated by the documentary evidence before the court, and (ii) the plaintiff failed to
make a prompt complaint of the alleged incident until 8/10/2013, 5 days after.

She urged the court to prefer the documentary before it to the oral evidence of the
plaintiff on the issue of the ATM displaying “insufficient funds” on 3/10/2013 and
4/10/2013. She cited the case of FASHANU V ADEKOYA (1974) 1 ALL NLR 32 at 37-
38, UKAEGBU V NWOLOLO (2009) ALL FWLR (PT. 466) 1852 at 1891 para E and EYA
V. OLOPADE (2011) ALL FWLR (PT. 584) 28, (2011) 11 NWLR (PT. 1259) 505 at 533
counsel reasoned further that if the Plaintiff’s story that she went to the ATM at 7-8
am on both 3/10/13 and 4/10/13, and the ATM displayed that her account had
insufficient fund’ Exhibit 5 could not have recorded that she was paid N20,000.00
each at 9:51:30, 9:32:36 and 9:53:24 on 3/10/13 and 15:32:21 on 4/10/13 as well
as N10,000.00 at 15:34:01 on 4/10/13. She referred to Exhibit 2. Counsel added that
the Plaintiff’s failure to promptly request for her balance or report the matter to her
banker makes her story incredible. On meaning of credible evidence, counsel referred
to the case of YOUNG V CHEVRON (NIG) LTD (2014) ALL FWLR (PT. 747) 620 at 639
paras D-E. After a detailed examination of the Plaintiff’s evidence, counsel urged the
court to hold that the plaintiff is not a witness of truth and should not be believed.

In issue No. 2, counsel also answered the question in the negative. She referred the
court to sections 131 and 133 of the Evidence Act, 2011 and the cases of ALOA V
KURE (2000) FWLR (PT. 6) 889, BUHARI V. INEC (2008) 18 NWLR (PT. 1120) 246 at
369-370 and EGBAREVBA V OSAGIE (2010) ALL FWLR (PT. 513) 1277 paras A-E. On

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the plaintiff’s claim of money for breach of contract between the plaintiff’s and the 2nd
defendant and further that the plaintiff did not plead negligence. She further
submitted that there is also no priority of contract as regards the 2nd defendant she
cited UBA PLC & ANOR V JARGABA (2007) ALL FWLR (PT. 380) 1419 at 1433 para B.
In conclusion counsel submitted that the Plaintiff has failed to discharge the
evidential burden placed on her by law to establish her claim and so her case must be
dismissed.

For the plaintiff, the learned counsel, Bem Hanaze Esq., adopted the 1st defendant’s
lone issue and the 2nd defendant’s issue No. II. In his argument, he referred to section
134 of the Evidence Act, 2011 and the cade of OSUJI V. EKEOCHA (2009) ALL FWLR
(PT. 490) 614 at 643 paras E-H on the standard of proof in civil case of being on the
balance of probabilities or preponderance of evidence. Also referring to section 126 of
the Evidence Act 2011, counsel contended that the plaintiff adduced direct oral
evidence of the failure of the ATM to dispense money to her. On the existence of
contract between the Plaintiff and the defendants, counsel cited the case of
COMPAGNE GENERALE DE GEOPHYSIONE NIG LTD V OKPARAVERO MEMORIAL
HOSPITAL LTD (2011) LPELR-CA/P/329/2015 and MAJEKODUNMI VS NATIONAL
BANK OR NIG LTD (1978) 3 SC 119 at 127 and submitted that the contract between
the plaintiff and the 1 defendant is that of banker/Customer while that of 2nd
defendant’s is revolutionary. On breach of duty of care, counsel submitted that both
defendants owed her a duty of care and referred to the CBN Guidelines for the
Operation of the ATM, 2010, requiring every ATM to have cameras. He submitted that
the defendants breached their duty of care and so the plaintiff is entitled to damages.
He cited the cases of UBN LTD V ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT.
421) 558, CAMEROON AIRLINES V MR. MIKE E. OTUTUIZU (2011) LPELR-SC
217/2004, (2011) 4 NWLR 512 (incomplete) and BALOGUN V NATIONAL BANK OF
NIGERIA LTD (2009) ALL FWLR (PT. 479) 427 at 447. He contended that the cases
cited by the defendants are distinguishable as they relate to withdrawals by
unauthorized persons. While this deals with failure of the ATM to dispense cash to the
Plaintiff. Counsel appraised the evidence of the 1st defendant and urged the court to
hold that the 1st defendant has not proffered a defence to the Plaintiff’s case.

Appraising the evidence of the 2nd defendant, counsel submitted that exhibit 4 does
not help the 2nd defendant as there is no denying the fact of the use of the ATM by
the plaintiff. He contended that Exhibits 3 and 4 are worthless documents in this
trial. According to him Exhibits 2, 3, 4 and 6 have given inconsistent accounts of the
same event. On the effect of documentary evidence on oral evidence, he cited the case
of GBLLEVE & ANOR VS MRS NGUNAN ADDINGI & ANOR (2014) LPELR SC
193/2012 and DAMO V STATE (2016) LPELR. 40239 (CA) as well as the American
case of JUDD V CITIBANK, NY CITY civ Ct, 435 NYS 2d 210; 1980 NY Misc Lexis 2282
He referred to the admission of the defence witnesses that there could be error in the
i-Journal to show that the documents relied on by the 2nd defendant are not error free.
On allegation of contradiction in the Plaintiff’s evidence, counsel submitted that they
are mere discrepancy and not material contradiction and that such mere

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discrepancies cannot adversely affect the case of the party. He referred to the evidence
of the defendant that there could be failure of the ATM to dispense cash even though
the account is debited and submitted that the most reliable evidence of a successful
ATM withdrawal is visual (video and photo) evidence and that the defendants have
failed to offer such cogent and credible evidence to prove that the plaintiff got value for
her withdrawal transactions. He urged the court to hold that the plaintiff has proved
her case against the defendants to warrant entry of judgment in her favour in this
suit.

In his reply on point of law, the 1st defendant’s counsel repeated his argument in the
main address and added that the Plaintiff failed to plead particulars of the alleged
breach/negligence He cited the case of IDUFUEKO V PFIZER 12 NWLR (PT. 1420) 96
to submit that the Plaintiff has failed to establish and/or prove the terms of contract
between her and the 1st defendant. In the 2nd defendant’s Reply address, the learned
counsel submitted that section 126 of the Evidence Act relied on by the Plaintiff is
irrelevant. She placed reliance on section 125 of the Act instead and urged the court
to prefer the documentary evidence in Exhibits 3,4 and 5 to the plaintiff’s oral
evidence citing the case of NJIKONYE V MTN NIG. COMM LTD, (2008) ALL FWLR (PT.
413) 1343 at 1364 paras D-E, counsel submitted that the plaintiff ought to establish
that there actually exists a legally binding contract between them and that it was
breached, but that she has woefully failed to so establish. On the principle of law
regarding the creation of a valid contract, counsel cited the case of BETA GLASS PLC
V EPACO HOLDINGS LTD (2011) ALL FWLR (PT. 579) 1173 at 1192. Counsel
maintained that the case of ECO BANK NIG PLC V ELDER DOMINIC EKPERIKPE
(Supra) and SUDAN COMMERCIAL BANK V EL DADIG MOHAMMED EL SADIQ
(Supra) are irrelevant as the plaintiff is not the 2nd defendant’s customer. She then
cited the case of OLORUNTOBA-OJU V ABDUL-RAHEEM (2009) ALL FWLR (PT. 497)
1 at 41 paras E-H counsel also submitted that the case of DAMO V STATE (supra)
does not avail the Plaintiff as it relates to contradictions. On the plaintiff’s reliance on
the American authority of JUDD V CITIBANK, NYCITY Civ at (supra), counsel
submitted that it is misplaced as that case relates to the phenomenon of cloned cards,
which is not the plaintiff’s case here and that the said authority is only persuasive,
being foreign. She urged this court to refuse to follow it. Counsel urged the court to
discountenance the images under the heading CBN standard Guidelines for the
operations of ATM 2010 cited by Plaintiff’s counsel in his address on the ground that
it amounts to counsel giving evidence in the course of final written address, which is
contrary to the settled position of the law that the address of counsel cannot attain
the acceptability of primary evidence from witnesses whose testimonies have been
subjected to the fire of cross examination she cited the cases of CITIZENS INT’L BANK
LTD V SCOA NIG. LTD (2006) ALL FWLR (PT. 323) 1680 and SALZGITTER STAHI G
MBH V TUNJI DOSUNMU IND. LTD (2010) ALL FWLR (PT. 529) 1024

From the pleadings of the parties and the evidence, both oral and documentary, the
facts which are establish and which need no further proof are that; the plaintiff and
the 1st defendant have a Banker/Customer relationship and she used her 1st

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defendant’s ATM card to withdraw money from the 2nd defendant’s Automated Teller
Machine (ATM) and she carried out the transactions on 3rd and 4th October 2013. The
defendants admitted these facts and so they need no further proof. See BAALO V FRN
(2016) LPELR 40500 (SC) where it is held, per Peter-Odili JSC at pages 42-43 paras F-
A that;
“It is well settled that facts admitted need no further proof.”
All the parties have put the issue for determination as whether the Plaintiff has proved
her case against the defendants to warrant entry of judgment in her favour the 2nd
defendant added the question, ‘whether the plaintiff is a credible witness whose
evidence should be believed and relied upon by this honourable court: I view the
above stated issue as an omibus one and I wish to narrow the issue dawn to whether
the plaintiff has proved that money was not dispensed to her when she operated the
2nd defendant’s ATM with her ATM card. I have considered the evidence of the parties
carefully and studied the bogus final written addresses and Reply addresses of
counsel which I have summarized above. The story of the plaintiff is that she
withdrew N15,000.00 from her account, using her ATM card at the 2nd defendant’s
ATM on 2/10/2013 and was informed that her balance was N95,213.07, but when
she tried to withdraw N20,000.00 on 3/10/2013, a text displayed on the ATM
informing her that she had insufficient funds in her account. She tried a second time
and she got the same information the following day being 4/10/2013, she returned to
the ATM and tried again to withdraw N20,000.00 and then N10,000.00 but she was
still informed of the insufficient fund in her account. It was on 8/10/2013 that she
went to complain to the 1st Defendant and discovered that she had only N5,000.00 in
her account instead of N95,000.00. Exhibit ‘2’ is the Plaintiff’s statement of account
for the period 2/10/2013 to 31/10/2013. It shows an entry of withdrawal of
N15,000.00 on 2/10/13 and a balance of N95,213.07 on that day. Then on
3/10/2013, withdrawals of N20,000.00 each in three transactions and on
4/10/2013, withdrawals of N20,000.00 and N10,000.00 in two transactions, leaving a
balance of N5,213.07. In the Remark column, the transaction is stated to be “Cash
withdrawal from others ATM UBA North Bridge BO ATM Benue NG “ Exhibit 5 is the
1-Journal for 539983---4619 Kume Bridget on 03 and 04/10/2013 tendered by the
2nd defendant to show the transactions on the Plaintiff’s ATM card on 3rd and 4th
October, 2013. It shows that on 3/10/2013, pin was entered at 09:51:06 and cash
presented at 09:51:27 and N20,000.00 was withdrawn leaving a balance of
N75,000.00 and cash taken at 09:51:30. Pin was again entered at 09:52:13, cash
presented at 09:52:14, cash of N20,000.00 taken at 09:52:36 leaving a balance of
N55,000.00 Pin was again entered at 09:53:00, cash presented at 09:53:21 and taken
at 09:53:24 leaving a balance of N35,000.00. At 09:53:31 card was taken and the
transaction ended at 09:53:31. At 09:53:39, Transaction started at 09:53:31. At
09:53;39, Transaction start, then cash taken at 15:32:29, card taken at 15:32:36,
transaction end at 15:32:38. No figure/amount is shown against this entry. On
4/10/2013, it is shown that pin was entered at 15:32:59 and cash was presented at
15:33;19 and taken at 15:33:21 in the sum of N20,000.00 pin was entered again at
15:33;40, cash presented at 15:33:59 and N10,000.00 taken at 15:34:01 with
transaction ending at 15.34.08. Exhibit ‘I’ is the letter of complaint/demand or Notice

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of intention to sue written to the 1st defendant on behalf of the plaintiff. A copy of the
plaintiff’s statement of Account is attached to it is said to show the
wrongful/unauthorized debit/withdrawals’ from the Plaintiff’s account between
3/10/2013 and 4/3/2013 I have looked at it and compared it with Exhibit ‘2’. I
observe that the contents are the same. As stated earlier, the question for
determination, to my mind, is whether the plaintiff has shown that the money was not
dispensed to her, it is the contention of the defendants that Exhibits 2 and 5 are
documentary evidence which is superior to oral evidence which is not allowed to
contradict the contents of documents. Counsel referred to section 125 of the Evidence
Act 2011 which states;
“All facts, except the contents of documents, may be proved by oral
evidence”.

The cases cited by the 2nd defendant’s counsel are relevant as they relate to the
superiority of documentary evidence. In FASHANU VS ADEKOYA (supra), the court of
trial is enjoined to test the probability of the case of either of the parties by reference
to relevant documents which represent evidence of some more or less permanent or
perhaps unassailable character. In doing this, I have considered a examined the
evidence of the plaintiff along with her conduct as well as the documents before me
and I am of the view that on the balance of probability, Exhibits 2 and 4 weigh more
than the plaintiff’s oral evidence. I say this because, it beats my imagination that the
plaintiff who believed that she had a balance of N95,000.00 in her account the
previous day being 2/10/2013 continued to try to withdraw money even when she
was informed that she did not have sufficient fund, without going to her bank
immediately to complain. It is unreasonable for her to have gone to the same ATM the
following day to attempt to withdraw money after being told the previous day that she
did not have sufficient fund in her account instead of going to her Bank to find out
the cause of the information she was getting from the ATM, more so that the said ATM
is not that of her Banker when asked why she did not complain immediately, the
plaintiff told the court that the transaction fell into the weekend and she could not
report until 8/10/2013 because she had a pressing issue on Monday and could not
report on that day, which was the next working day. Evidence before the court shows
that the transactions of 3/10/13 and 4/10/2013 were carried out during office hour
on working days yet the plaintiff who believed she had N95,000.00 simply walked
away after being told by the Machine that she did not have sufficient fund in her
account. She did not disclose the nature of that pressing issue that could be more
important than the issue of the refusal/failure of the Bank to pay her money she
requested for through the ATM. I am tempted to agree with the 2nd Defendant’s
counsel that the only logical explanation as to why the plaintiff did not immediately
complain to the 1st defendant is that she got value for her transactions on 3/10/13
and 4/10/2013. In the case of YOUNG V CHEVRON (NIG) LTD (supra) cited by
counsel, the court of Appeal held, on credible evidence thus;
“credible evidence is evidence worthy of belief and evidence to be worthy
of credit must not only proceed from a credible source but must in
addition be ‘credible’ in itself, by which is meant that it should be so

8
 natural, reasonable and probable in view of the transaction which it
describes or to which it relates as to make it easy to believe it. See
Black’s Law Dictionary, 6th Edition”.

I find it difficult to believe the plaintiff that she did not get value for her transactions
as the reasonable thing to do after the alleged failure of the 3/10/13 was to go to her
Bank to find out why she got the alleged message on the ATM of insufficient funds,
and not to go back to the same ATM to make further attempts at withdrawing money.
The balance of probability, looking at exhibits ‘2’ and ‘4’ is that the plaintiff got value
for her transactions. Whether made her to go to the 1st defendant to complain on the
8/10/13 is best known to the plaintiff. The law is trite that in civil cases, the burden
of first proving the claim rests/lies on the plaintiff or he who asserts. See section
133(1) of the Evidences Act 2011. In the case of BUHARI V INEC (supra), the Supreme
Court held that;
“The standard of proof in civil cases, including election petitions, is on
the preponderance of evidence or the balance of probabilities. See
Okuarume V Obabokor (1965) ALL NLR 360; Are V Adisa (1967) 1 ALL
NLR 148; Odulaja V Haddard (1973) II SC 357, (1973) 3 S.C. I; (1979) 3-
$ SC. (Reprint) I; Elias V Omobare (1982) 5 S.C 25; (1982) 5 S.C
(Reprint) 13. In determining either the preponderance of evidence or the
balance of probabilities in the evidence, the court is involved in some
weighing by resorting to the imaginary scale of justice in its evaluation
exercise. Accordingly, proof by preponderance of evidence adduced by
the Plaintiff, (in our context the petitioner or appellant) should be put on
one side of the imaginary scale mentioned in Mogaji vs Odofin (1987) 3
S.C. 91; (1978) 4 S.C (Reprint) 149 and the evidence adduced by the
defendant (in our context, all the respondents) put on the other side of
that scale and weighed together to see which side preponderates. In
arriving at the preponderance of evidence, the court of Appeal in its
capacity as a court (Tribunal) of first instance need not search for an
exact mathematics figure in the imaginary’ weighing machine. Because
there is in fact and in law no such machine and therefore no figures talk
less of mathematical exactness. On the contrary, the court of Appeal, in
its capacity as a court (Tribunal) of first instance, should rely on its
judicial and judicious mind to arrive at when the imaginary scale
preponderates; and that is the standard; though oscillatory and at times
nervous.”

I am guided by the above principles in determining this case. Looking at

the evidence of the defendants which is mainly documentary and putting it side
by side with that of the Plaintiff, I prefer the evidence of the defendant to that
of the Plaintiff. While the case of the Plaintiff appears sympathetic the law is