i = | = d IN THE FEDERAL HIGH COURT OF NIGERIA a &@ N OS JUDICIAL DIVI: = HOLDEN AT LAGOS 3 ON FRIDAY THE 6™ DAY OF MAY, 2022 = P, THE HONOURAI = ay IT NO: BETWEEN: MR CHIEBUKA NWORAH a APPLICANT AND UNITED BANK FOR AFRICA PLC ses RESPONDENT te ~~ JUDG M ENT Gee By his originating application dated 21/10/2021 filed the the Applicant commenced this suit against the same date, Respondent seeking for the enforcement of his fundamental human rights allegedly violated by the Respondent. As shown in the statement attached to the application, the Applicant is praying for the following reliefs: one oun (ar) ni ai arrete ica Cou DATE:.(@) A Declaration that the Respondent violated the data privacy right of the Applicant as enshrined in Section 37 of the Constitution by unilaterally opening a new domiciliary account number 2190320230 without the pint consent of the Applicant. A Be (ii)A Declaration that as a data controller, the Respondent's failure to obtain the Applicant’s consent before processing his data, that is, by unilaterally opening a new domiciliary account number 2190320230 is a breach of the provisions of the Nigeria Data Protection CERTIFIED TRUE COPE Regulation 2019 (NDPR), as issued by the National Information Technology Development Agency (NITDA) (iii) A Declaration that as a financial institution, NWAGWU Cc. ‘NN aN om HART is Dare:.the Respondent's failure to protect the privacy and confidentiality of the Applicant’s information, and the act of imposing a second domiciliary account number 2190320230 on CERTIFIED rey Cope the Applicant is a violation of the Central Bank of Nigeria Consumer Protection Regulation (“the CBN Regulation”), as issued by the Consumer Protection Department of the Central Bank of Nigeria in a circular dated 20 December 2019. 4, (iv) An Order of the Honourable Court directing the said sum of Four Hundred and Fifty United States Dollars ( US$450) to be paid into to the Applicant's first domiciliary account number 3002971242 and for the immediate closure of the domiciliary account number nmaote C.N.N (MR) ui HIRE TUE oe, vs bare:.» (v) (vi) Wii) 2190320230, which the Respondent opened without the consent of the Applicant. An Order of this Honourable Court awarding the sum of twenty Million Naira (20,000,00), as damages against the Respondent for the violation of the Applicant’s fundamental and data privacy rights. = Ae An Order of this Honourable Court awarding the sum of Two Million Naira (N2,000,000) against the Respondent as cost of this action. And for such further or other Orders as the Honourable Court may deem fit to make in the circumstance. CERTIFIED TRUE Cop The application is founded on eleven (11) grounds and supported by affidavit of twenty one (21) paragraphs to which copies of letter of confirmation of account of the Applicant dated eoranes Sa (AR) E COPY rata a Gh Dares | 4CERTIFIED TRUE COP? 6/10/2020, transaction receipt confirming payment of the sum of US$450 (Four Hundred and Fifty US Dollars) into the first Domiciliary Account of the Applicant, electronic text message dated 19/3/2021 received by the Applicant indicating that a new domiciliary account had been opened for him, electronic copy of credit alert of 21/12/2020 received by the Applicant indicating that payment in the sum of US$250 (Two Hundred and Fifty US Dollars) was earlier made into his first Domiciliary Account, letters dated 26/4/2021 and 30/6/2021 written by the Applicant’s Solicitors to the Respondent demanding for immediate transfer of the sum US$450 (450 US Dollars) back to his first domiciliary account and for an immediate closure of the Second Domiciliary Account were attached as exhibits CNE1, CNE2, CNE3, CNE4, CNES (a) and CNE5 (b) respectively. Ae The Respondent joined issue with the Applicant by filing a NWAGWU Ns nin RLFIED Thue cog? rasa orricee 5 Dare.CERTIFIED TRUE COPY written address in opposition to the application on the 9/11/2021. The Applicant however filed his reply on point of law against the Respondent's written address on the 16/11/2021. The matter came up for hearing on the 14/2/2022 when counsel adopted their written submissions and rendered adumbration in urging the court to hold in their favour. UM. Y CT Al OR THE PART, The case of the Applicant is that he is a customer to the Respondent, a limited liability company registered under the Companies and Allied Matters Act and licenced by the apex Bank to carry on banking business in Nigeria. FZ» The Applicant opened a domiciliary account with the Respondent in Ukpor, Anambra State with account number 3002971242 which was confirmed by the Respondent on 6/10/2020 vide exhibit CNE1. The Applicant expected the sum of USD450 to be paid into the oo ‘ NWAGWU C.N.N (MR) CERTIFIED TRU; col Pincirat execute Sch ‘FEDERAL i HA i tout Dare. weCERTIFIED TRUE cor’ account by one Philip Onuoha whom he had earlier furnished with the account details. Upon confirmation by Philip Onuoha that he had paid the money into the Applicant’s account, he waited to receive confirmation from the Respondent showing that the amount had indeed been lodged into the account all to no avail. The Applicant however received a message from the Respondent on the 19/3/2021 revealing to him that a new domiciliary account with account number 2190320230 had been opened in his name and that the said sum of USD 450 was lodged in the new account. 65 tas The Applicant visited the marina Lagos Head office of the Respondent where it was confirmed that indeed the new Domiciliary account was opened in the name of the Applicant where the said sum was lodged. The Respondent did not provide any reasonable explanation or justification for its action when the Applicant made further Nwaci bs CNN RAD Tae oe EDERAL Wi FICER: is Dare.geared TRUE COE inquiry to know the reason behind the bank’s decision to open a domiciliary account in his name without his consent. . The Applicant maintained that upon his insistence to know the reason behind the opening of a new account in his name, the Respondent finally disclosed that the new account was opened in compliance with the CBN circular of 5/3/2021 regarding “Naira 4 Dollar Scheme” and that Banks were asked to set up domiciliary accounts for customers who do not have domiciliary accounts, Ass bg2% It is the case of the Applicant that his first domiciliary account was active and operative and as at the 21/12/2020, the account was credited with the sum of USD 250 as shown in exhibit CNE4. He maintained that he was neither informed of the need to open a second domiciliary account for him nor his consent sought for in opening the new account by the Respondent, The Applicant reiterated that the Respondent used hispersonal details which he provided while setting up his first domiciliary account and unilaterally created a second account he never requested for at any point in time. CERTIFIED TRUE CoP The Applicant contended that he knew as a fact that the CBN circular of 5/3/2021 on “Naira 4 Dollar Scheme” did not in any way empower Deposit Money Banks or International Money Transfer Operators to arbitrarily open accounts for customers for the purpose of taking advantage of the Scheme. sz v wor It is the case of the Applicant that the action of the Respondent has compromised his personal data thereby exposing him to data breaches and potential misuse of the new account created by the Respondent without his knowledge. He claims to have been put in enormous mental stress and embarrassment in the wake of the negligent action of the Respondent. The Applicant wrote two letters to the Respondent on the Nwacwy 7 ; Wi SEnrirten rave ele? tf AMO Sate’ aa inayatCERTIFIED TRUE tor 26/4/2021 and 30/6/2021 demanding for an immediate transfer of the sum of USD 450 back to his first domiciliary account and for the closure of the second domiciliary account which the Respondent failed and neglected to accede. The Applicant maintained that the second domiciliary account remain active and operative. The Applicant said he had to file this action on the conviction that the judiciary is the last hope of the common man. Refer to paragraphs 2 through 19 of the affidavit in support of the application and exhibits CNE1 through CNE5. jc ee ISSUE FO! ER) Hl The relevant and germane issue for determination is: “whether the action of the Respondent constitute an infringement of fundamental rights of the Applicant provided in SectionreRTIeD RUE coe Counsel to the Applicant submitted that the right to privacy of data is a data protection right which is subsumed in the right to privacy guaranteed under section 37 of the constitution which embodies the protection of data privacy. Counsel submitted that the Applicant’s information was supplied to the Respondent solely for the purpose of all transactions that arise from the use of the first domiciliary account and that his personal information is subject to data protection laws. Counsel argued that same was used in a manner inconsistent with the purpose for which it was supplied and without the consent of the Applicant thereby constituting a breach of the Applicant’s right to privacy. (fs Relying on the provision of the Nigerian Data protection Regulation 2019 (NDPR) issued by the National Information Technology Development Agency (NITDA) (not supplied), Counsel called the attention of the Court to article 1.1 of the Regulation on NWAGWU CNN (MP) o oGEREFED rae raga Scwhe agar) TUE the objectives of NDPR which are to safeguard the rights of natural persons to data privacy as well as prevention of manipulation of personal data. Counsel called the attention of the Court to article 2.2 of the Regulation (NDPR) which place a duty on financial institutions as data controllers to obtain the consent s of data subjects before processing their data. AEG Counsel argued that the failure of a data controller to obtain the consent of data subjects like the Applicant means that they have contravened the provision of the NDPR and that such data controller will be liable to the concerned data subject. Counsel submitted that the unauthorised opening of a second USD domiciliary account without the consent of the Applicant constitutes a breach of his right to the protection of his personal data by the Respondent. Counsel emphasized that the purpose for which the Applicant's personal data at the disposal of the Respondent crea! Cn. ~~ 2 Nv nin etme core? ORC curve ination & ortlcteaggre THEE tar was meant for, is only to be used for the purpose of all transactions that result from the use of the first domiciliary account and not to be exploited by the Respondent in setting up a second domiciliary account. & CEH The leaned counsel called the attention of the court to the provisions of the CBN Consumer Protection Regulation Department of the CBN in a circular dated 20/12/2019 (not supplied) which in its Articles 5.1.7, 5.4.1 and 5.4.2 provide that Banks are not to impose any product, service or channel on consumers, that financial institutions have a duty to obtain written consent of consumers to collect and process their personal data for specific purpose and provide them with the option to withdraw the consent at anytime. Counsel contended that financial institutions that fail to comply with the CBN regulations are liable to various sanctions and fines. ae C.N.N (MR sae é bare.‘o ae EP Itis his argument that the Respondent neither informed the Applicant of any need for a second domiciliary account to be-opened for him nor seek for his consent or approval but simply used his personal data/details which he provided in the course of setting up the first domiciliary account and unilaterally opened a second account without consulting him. . a 1 Counsel placed reliance on plethora of cases. He called the attention of the court to the cases of Nwali v. ESBIEC (2014) LPELR -23682 (CA), Incorporated Trustees of Digital Lawyers Initiative & Ors v. NIMC (unreported) CA (IB/2020, page 19 and Emerging Market Telecommunication Service Ltd v. Godfrey Nya Eneye (2018) LPELR 46193 (CA). The Respondent did not deny or controvert the claims of the Applicant, however counsel to the Respondent = * 4 (MR) ED |g ae nh CareycERTIFLED TRUE wee submitted that the name under which the Respondent was sued is unknown to law. Counsel argued that United Bank for' Africa sued by the Applicant is not a juristic person and that having a non-juristic person as a party is not a <= misnomer and that same cannot be amended. Asean He urged the Court to therefore strike out this suit for that reason. He placed reliance on the cases of Attorney General of Federation v. All Nigeria Peoples Party (2003)12 SCM 1 at 12, Searle v. Dove (1964) 2 ALL ER 307, Admin of the Estate of Gen Sanni Abacha v. Eke - Spiff & Ors (2009) 3 SCM, Njemanze v. Shell B.P Port Harcourt (1966) 1 ANLR 8 at 10, Agbonmagbe Bank Ltd v. G.B. Olivant Ltd & Anor (1961) ALL NLR 116, Usuah v. G.0.C. Nig Ltd & Ors (2012) LPELR - 7913 (CA), World Mission Agency Inc. v. Sodeinde & Anor (2012) LPELR - NMAGWU C.N.N (MR) RTIFIED TRUE COPY vi an, opricee Me Dares. agearirted TRUE COR 19738, (CA) and Anemene & Anor v. Oblanyide & Ors (2006) LPELR - 11635 (CA). PEgyy ' The learned counsel for the Applicant however drew the attention of the court to the fact that the Respondent was served with the originating application and acknowledged the receipt of same, briefed a counsel to enter appearance and defend the suit on its behalf. Counsel stressed that there is no doubt or any confusion as to the fact that the Respondent sued in this suit whose address where it was served is at 57 Marina, Lagos is United Bank for Africa Plc, Counsel submitted that the mere fact that the suffix “Plc” was not inserted in the name of the Respondent which is innocuous omission, doesn’t derogate the identity of the Respondent. He submitted that the omission in the description as to the name of the Respondent is a misnomer which does not affect the understanding as to the party referred to in the suit and such a nwacwi a. a WU CNN (ME Ory tapse ee Dare. aCERTIFIED TRUE COR mistake which is a misnomer cannot vitiate the validity of the proceedings. Counsel called the attention of the Court to the cases of Benjami N. Njoku v. United African Company Foods (1999) 12 NWLR (pt. 632) 559, Regd Trustees of the Airline Operators of Nigeria v. NAMA (2014) 8 NWLR (pt. 1408), Omisore & Anor v. Aregbesola & Ors (2015) 15 NWLR (Pt. 1482) P. 234-235, Egolum v. Obasanjo (2004) 1 WRN 87 and Nishiza wawza Ltd v. Strichand Jethwani (1984) 12 SC at 285 - 286. ee On the objection of the Respondent against the suit on the ground that the Applicant sued a non-juristic person, I hold the conside: ed view that the failure of tls Applicant to add the suffix “Plc” to the name of the Respondent is a mere misnomer which cannot vitiate the proceedings. The Respondent knew well that it is being described and referred to in the proceedings and so there is no case of mistaken m ae of 7 seer EMM ae) 184 co f sth ta eycgnryen TRUE COR identity. The respondent even went to the extent of briefing a counsel who wrote a letter dated 16/11/2021 to the Applicant's counsel stating that the second unsolicited domiciliary account was a result of system glitch. Refer to paragraph 6 of the affidavit of fact dated 17/11/2021 deposed to by one Lucia Oboni, one of the legal practitioners of the Applicant. The Apex court in the case of the Registered Trustees of the Airline operators of Nigeria v. NAMA (2014) LPELR - a 22372(SC) p. 21, paras A-C held thus: PSE “ let me state emphatically here that when both parties are quite familiar with the identity envisaged in a writ of summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify Nwacwe al . NWAGWU CNN (MR/ CERTIFIED TRUE CORE / a striking out of the action. A misnomer that a will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to be sued.” By the provisions of order 9 rule 14 (2) of the extant Civil Procedure Rules of this Court which becomes applicable by the provision of Order XV rule 4 of the FREP Rules, 2009, this court is empowered to at any stage of the proceedings either upon or without the application of either party and on such terms as may appear just order that the name of any party improperly joined be struck out and that the name of any party who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the question involved in the proceedings be added. : ae CERTIFIED TRUE copy TIVE OFFICER kt a loon leh 8 [es CNN (MR)I CERTIFIED TRUE Cort Coming from the foregoing, I hold the view that the objection of the Respondent against the suit on the ground of suing a non- juristic person is misplaced and overruled. The “United Bank for Africa Plc” is the party being sued as the Respondent in this suit and accordingly the suffix “Plc” is ordered to be added to the name of the Respondent. (En Itis of note that the Respondent did not controvert or deny the claims of the Applicant by filing a counter affidavit. The law is settled that where depositions on material facts in an affidavit in support of an application are not denied by the adverse party by filing a counter affidavit, such facts not denied in the affidavit in support of the application remain the correct position and the court can act on them if they are not moonshine. Those facts are deemed admitted by the Respondent and require no further proof. See Chief of Naval Staff Abuja & Ors v. Archibong & Anor (2020) LPELR 51845 (CA) p. 13, paras B-C, NWAGWO CNN (MR) NV. CERTIFIED Fa PRINCIPAL NE Sock SO ASRGUINE Sie iter ageas 20 4Fayose v. EFCC & Anor (2018) LPELR - 51545- (CA) p. 21, ee CERTIFIED TRUECOPY AS, . | have examined the affidavit evidence and documentary exhibits of the Applicant. The Applicant seem clearly to have made a good case against the Respondent. The Applicant seem obviously to be on firm ground both by the established facts in support of his claims and in law as contained in his counsel’s submission. It is already established that the second domiciliary account was unsolicited, unapproved and opened by the Respondent without the requisite authority and consent of the Applicant. It is established that the Respondent as a financial institution in control of the Applicant’s data intruded into the personal data and information of the customer unilaterally without his consent, knowledge and approval, processed the unsolicited second domiciliary account and unlawfully transferred or intercepted the Applicant’s fund from his lawful account into oe 2 IWAGHY CNN (mR) a ning Es arpcte a iy aethe illegal account without his consent. The action of the Respondent has no justification in law and same constitute a violation of the Applicant's right to privacy in section 37 of the Constitution. CERTIFIED TRUE Core In its bid and effort at interpreting the term “privacy of citizens” as provided in Section 37 of the Constitution, the appellate court in Nwali v. EBSIEC & Ors (2014) LPELR - 23682 (CA) pp. 27-29, para E held as follows: Ep “It is glaring that there is nothing in the phrase “privacy of Citizens” or in the entire text of section 37 of the Constitution and the Constitution as a whole suggesting or compelling a restricted interpretation of the phrase. As couched in such general terms, unless interpreted literally, extensively and expansively, providing the details of thepenieled TRUECORY citizen’s privacy that is protected therein, the Phrase will be meaningless and sterile. Every provision of the constitution was made with the intendment of realizing a particular object. Therefore it cannot be presumed that any clause in the constitution is intended to be without effect ... where the constitution states a word or phrase generally or without any limiting words, it is obvious that it intends that the word or phrase should have general meaning and application, unless other provisions in the constitution state or suggest the contrary. If there are no other provisions of the constitution requiring or suggesting the contrary, the Court must apply the word or phrase generally, and will have no power to GU CH SERTiFiEo rau te) fi Eka ecUTive pct 23CERTIELED TRUE COR restrict its application to specific situations. For the above reasons, I interpret the phrase “privacy of Citizens” generally, liberally and expansively to include privacy of citizen’s body, life, person, thought, belief, conscience, feelings, views, decisions (including his plans and choices), desires, health, relationships, character, material possessions, family life, activities et cetera”. &,, cee Coming from the foregoing, I hold the considered view that, by its action and act of using the personal data and information of the Applicant at its disposal to open the unsolicited second domiciliary account in the name of the Applicant without his knowledge, approval and consent, the Respondent has breached his right to privacy which has to do with his right to decide, to choose, plan or desire the Second domiciliary account, Exhibits ma NYAGWO C.N.N (mR) aCNES(a) and (b) are letters the Applicant wrote to the Respondent on the 26/4/2021 and 30/6/2021 which were duly received and acknowledged. CERTIFIED TRUE core The Applicant demanded in the letters that the Respondent should transfer his money from the unwarranted account back to his lawful account and then close the unsolicited account. The Respondent however waited will 16/11/2021, after this suit was already initiated before writing to the Applicant's counsel claiming that the second account was opened as a result of a system glitch and that the said account has been closed and his money moved to the existing domiciliary account. S ~ ber Apart from the failure of the Respondent to attach the statement of account and banking documents showing that indeed the Applicant's funds have been transferred or moved to his legal account and that the illegal account has been closed, the letter does not suggest that the Bank regret its unlawful intrusion NWAGWU C.N.N (MR) 25 CERTIFIED TRUE COPY PRINCIPAL EXECUTIVE OFFICER FEDERAL Wich COURT IKOFy Laas pare: one]CERTIFIED TRUE CORY into the personal data and information of the Applicant as same does not reflect any apology on the part of the bank. . The content of the letter of the Respondent's counsel dated 16/11/2021 is a further confirmation establishing the bank’s violation of the Applicant’s right to privacy provided in Section 37 of the Constitution. | agree with the Applicant that he is entitled to compensation in terms of damages for the Respondent’s wrongful, unjustified, unlawful and unwarranted breach and infraction of his constitutional right to privacy. To this end, I hold that the lone issue in this Judgment is resolved in favour of the Applicant against the Respondent. There is merit in the case of the Applicant. Reliefs 2 and 3 on the originating application are strictly not fundamental right claims and they are seen to be subsumed in relief 1 and_are therefore SSE) -G I declined. =r a NACHE CN (mR) SERriFiED rave copy vine RSEGUTINE Dreicen AL Mion Ct ‘nots aoe:f cERTIRED TRUE CORY | Consequently, reliefs 1 and 4 are hereby granted. With , Ci respect to relief 5, I award the sum of N2 million Naira (two million Naira) and N500,000 (five hundred thousand naira) with respect to relief 6 in favour of the Applicant against the Respondent as compensation for the unlawful violation of his fundamental rights and cost of litigation incurred by the Applicant respectively. I award the sum of One Hundred Thousand Naira (N100,000) only as cost of action in favour of the Applicant against the Respondent. Judgment read and delivered in the open court. asc HON JUSTICE AKINTAYO ALUKO JUDGE 6/5/2022. PARTIES = Absent NWAGWO c. | ERTIFIED rae’ (MA) | EE oe COUNSEL are: 1. Chukwunonso E. Azih, Esq With Lucia 0. Oboni, Esq for the Applicant. 2‘CERTIFIED TRUE COR 2. H.B. Williams, Esq for the Respondent. bE HON. JUSTICE AKINTAYO ALUKO JUDGE 6/5/2022. CERTIFIED TRUE COP NWAGWU C.N.N (MR) HFIE iE Y PRINCIPAL EXECUTIVE. OFFICER FEDERAL ign COURT os are: oe 2 d oGsss 7 Os) 3 ils Ber: 28