Justice Yelim Bogoro, who presided over the court while delivering judgment in a suit instituted by Onwuka, on July 10, 2023, in a case numbered FHC/L/CS/317/2023, described UBA Plc’s actions as unconstitutional, unlawful and abuse of position as a financial institution.
Consequently, Yelim ordered UBA Plc to pay N6 million to Mr Onwuka as general damages and costs of instituting the suit.
The judge also ordered UBA Plc to write a letter of unreserved apology to Mr Onwuka for the humiliation, grief and annoyance the bank caused him while the case lasted.
Onwuka, in his suit filed by his lawyer, Collins Akinade, told the court that the case is under Sections 36, 37 and 44 of the 1999 Constitution and Article 14 of the African Charter on Human and Peoples’ Rights.
He prayed the court for the following reliefs: “a declaration that the respondent’s unilateral opening of account number ‘1003284792’ (the fictitious account)for and in his name 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.
“A declaration that the respondent’s abuse of its position as a financial institution patronised by the Applicant through the imposition upon him of a second current account by which account it unlawfully assumed the role 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 confiscated 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.
“An order for the immediate payment of the sum of N100 million as general/exemplary damages by the respondent to him.
“An order for the immediate payment of the sum of N5 million by the respondent to him as cost of the action.
“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 circumstance.
Onwuka’s Statement of Facts, as highlighted by the Court, was: “The applicant is a customer of the respondent, which is a notable and one of the biggest commercial banks in Nigeria with whom he opened and had been operating a bank account since December 2003. The account number is 1003293912 and tied to the Applicant’s mobile phone number, +234 803 305 6481, through which he had been receiving electronic alerts/records of transactions on the account.
“The applicant, upon discussions with a foreign company (Royal Bank of Canada) regarding an offer of engagement as a consultant, anticipated the company’s due diligence checks on him, especially a credit check. The applicant had not operated the account since 2006, which at the time had a credit balance of the applicant, but out of an abundance of caution, requested a confirmation from the respondent that his account was credit debt free. To the applicant’s shock and dismay, the respondent informed him that he owed the sum of N48, 882.05 (Forty-eight Thousand, Eight hundred and Eighty-two Naira, live kobo) on an account in his name (account number 1003284792 but which was completely strange to him, having neither authorised the respondent or any third party to open any such account. It is self-evident that the respondent took undue advantage of its custody of the applicant’s details he supplied for opening his account to open and operate the second and authorised account it imposed upon the Applicant, together with the debit balance it had contrived on the account.
“The applicant’s vehement protests for closure of the strange and unauthorised account and his credit status duly rectified were to no avail, the respondent revealing that it had sent his name to the Credit Bureau as a Debtor. And that it would only remove the name from the Bureau upon settlement of the debt it had contrived against the applicant through the strange unauthorised second account.
“After several months of the stalemate with the respondent standing its ground, even after he complained to the Central Bank of Nigeria, the applicant was forced to pay the respondent in settlement of the contrived debit balance in the strange/unauthorised account. But by this time, the applicant’s negotiations with his prospective Canadian principal had been terminated.
“By their letter of September 30, 2022, the Applicant’s solicitors wrote a letter demanding monetary compensation for him and an apology, and the Respondent replied by its letter of October 4, 2022, to beg for time to conclude its investigation into the matter and then revert accordingly. The respondent has failed to revert to the applicant’s solicitors as promised. Still, the applicant discovered from his mobile phone bank alert that it had surreptitiously credited the sum of N51, 818.32 (Fifty-one Thousand Eight Hundred and Eighteen Naira, Thirty-two Kobo) to his account.”
UBA Plc’s failure to oppose the suit by the Fundamental Rights Enforcement Procedure) The court ruled this: “I will quickly state that as could be gleaned from the heading of this suit, it is a fundamental rights matter. From the proceedings of the Court dated 18th April 2023 by the mouth of the respondent’s learned counsel, the respondent was served with the Originating process well over 14 days before the date the matter came up for hearing, but the respondent failed to file any response by way of Counter affidavit.
“Considering Order Il Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules which provides “, Where the Respondent intends to oppose the application, he shall file his written address within five days of service on him of such application and may accompany it with a Counter Affidavit. Having not filed its Counter affidavit and upon the application of the Applicant’s learned senior counsel, the Court ordered the matter to proceed that date leaving “the Respondent with no defence/Counter affidavit to the application.
“I have noted that the respondents were served with the Originating processes of this Court weeks before the date the matter was set down importantly, ….|! that this is a fundamental proper matter.
“From the proceedings, it is clear that the respondent, who was served with the Originating processes of the applicant well over two weeks, failed and refused to file its counter affidavit as envisaged by Order Il Rule 6 of the FREP Rule which gives a defendant/respondent five days within which to file a Counter Affidavit of the service on him of such application. Be that as it may, I will still determine the matter on its merit.
Delivering judgment in the suit, Justice Yelim held that: I have considered the Exhibits attached to the application. From the averments in the supporting affidavit and the Exhibits attached, it is clear that the respondent (UBA Plc) had opened a second unsolicited account for the applicant.
“Suffices that the Respondent has not challenged the facts deposed to by the Applicant.
“It is the position of law that depositions of material facts in an affidavit not denied by the adverse party by filing a Counter Affidavit such facts not banned in the testimony remain correct and is deemed admitted by the other party as accurate. The Court can act on them because those facts require no further proof.
“From the facts before the Court, the applicant has made a good case against the respondent. From the evidence before the Court, it seems the account opened was unsolicited but opened by the respondent without the applicant’s consent.
“The applicant has established the Respondent as a financial institution in control of the Applicant data intruded into the personal data and information of the Applicant without the Applicant’s consent, knowledge and authority processed and open an unsolicited account. I am of the view that this action of the Respondent has no justification in law and same constitutes a violation of the Applicant’s right to privacy under Section 37 of the 1999 Constitution.
“Considering all the above, I believe that the respondent, in wanton abuse of its position of power as a banker to the applicant and custodian of his personal information/data, egregiously violated the applicant’s right to privacy and property guaranteed under the 1999 Constitution. For this reason, | at this moment, enter Judgment in favour of the Applicant.
“I at this moment make the following Orders: “A declaration is hereby made that the Respondent’s unilateral opening of account number 1003284792 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.
“A declaration is hereby made 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.
“An order is hereby made for the immediate payment of the sum of N3, 000, 000.00 (Three Million Naira) as damages by the Applicant to the Respondent.
“An order for the immediate payment of the sum of N3,000,000.00 (Three Million Naira) by the Respondent to the Applicant as costs of the action.
“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.”
