A Lagos high court has awarded N5million damages against First Bank Plc in favour of its customer, Mr. Emmanuel Afolabi Onishile, for the illegal sale of his shares and loss of original title document.
Justice O.O Femi-Adeniyi said the defendant breached the fiduciary duties it owed the claimant.
The judge also ordered that the defendant must pay to the claimant N500, 000 as cost and that it would pay 10 percent interest per annum until the judgment sum is liquidated.
The claimant had commenced an action against the bank in February 2011, praying the court to declare that the defendant breached its fiduciary duties and to order it to pay him the sum of N35 million as general damages for the illegal sales of his shares and loss of his original title document.
In its defense, while the bank admitted that it has not been able to locate the title document after conducting a thorough search at its head office and at Ogba branch, it denied that it sold the claimants share, saying it only realized the share certificates to off-set the claimant’s outstanding indebtedness to the bank.
But delivering judgment June 19, the judge held that the claimant established prima facie case that the defendant owes him a duty of care with respect of his original title document and share certificate as well as the unlawful sale of his shares.
The court said the defendant sold the claimant’s shares to off-set a debt, which the claimant had already repaid, following a judgment of a court.
“The defendant, on the other hand, has failed to discharge the burden of disproving the claimant’s case. I find and hold therefore that the defendant, as the claimant’s banker in whose custody the documents were, owed the claimant the duty of care to ensure that those documents were kept safe, which duty it failed to observe.
“The defendant has asserted that it obtained a certified true copy of the claimant’s title document which is sent to him and also executed a deed of release for him. While it was not a certified true copy that was kept with the defendant, such a copy enjoys a statutory presumption for its genuineness under section 146 of the Evidence Act 2011. The claimant himself, upon becoming aware of the loss of the original title document has a duty to ensure that a record of the loss of the original title document is kept at the lands registry to forestall any loss that may result to him and thereby mitigate any damages he may suffer, more so when he has obtained a deed of release from the defendant.
“The measure of damages in an action for negligence is founded on the principle of restitutio in integrum, which is to the effect that a claimant should recover such a sum as will place him, so far as can be done by compensation in money, the same position as if the loss had not been inflicted on him.
“While the cost of the loss of the original title document cannot be quantified, the shares can be valued as they are regularly sold on the stock market. However, the claimant has failed to lead any evidence on the value of the shares alleged to have been sold by the defendant and this court cannot investigate what has not been brought before it. The failure of the claimant to adduce evidence on the value of the sold shares does not deprive him of his entitlement to be awarded damages, but the quantum of the damages, which may have accrued to him otherwise will be diminished,” the court held before awarding N5million against the bank.