ABLEEM PETROLEUM CO. (NIG) LTD v. AMCON (2020)

ABLEEM PETROLEUM CO. (NIG) LTD v. AMCON

(2020)LCN/14394(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/A/302/2018

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

ABLEEM PETROLEUM COMPANY NIGERIA LIMITED APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND MAKE FINDINGS OF FACT

The law is settled and it is that the evaluation of oral evidence and findings of facts thereto, are the exclusive preserve and duty of a trial Court. For that is the Court that singularly hears the witness and observes their demeanour to help it to believe them or not. An appellate Court does not have that privilege and so cannot conceivably interfere with the findings of a trial Court supported by evidence of facts – UNITY BANK PLC V BOUARI (2008) 7 NWLR (pt. 1086) 372), BAKARE V STATE (1987) 6 SC I, UZOECHI V ONYENWE (1999) 1 NWLR (pt 587) 339 of 347 E – F, and ORO V FALADE (1995) 5 NWLR (pt 396) 385.
However, where the trial Court has drawn wrong conclusion from the evidence led or that the findings are perverse in the sense that they did not flow from the admissible evidence led before the Court, then an appellate Court has the duty to interfere and set matters aright – KAYDEE VENTURES V HON. MINISTER F.C.T & ORS (2010) 2 SCNJ 276 OF 301, EBBA V OGODO (2000) 6 SCNJ 100, AYUA V ADASU (1992) 3 NWLR (PT 231) 598. OKOCHI V ANIMKWOI (2003) 2 SCNJ 260, NNEJI V CHUKWU (1996) 10 NWLR (PT 478) 265 & OYINLOLA V OJELABI (2011) 9 NWLR (PT 1251) 200 AT 208. Further, where the evidence is documentary, an appellate Court is in the same position on evaluation, as the trial Court – APE SALISU & ORS V LATEEF ODUMADE (2010) 2 SCNJ 257 of 267. PER YAHAYA, J.C.A.

WHETHER OR NOT A DEBTOR WHO BENEFITTED FROM A LOAN OR OVERDRAFT FROM A BANK HAS THE LEGAL OBLIGATION TO REPAY IT AS AT WHEN DUE

It is trite law that a debtor who benefitted from a loan or overdraft from a bank has both the moral and legal duty and obligation, express or implied, to repay it as and when due – National Bank of Nigeria Ltd Vs Shoyoye (1977) 5 SC 181, Afribank Plc Vs Alade (2000) 13 NWLR (Pt 685) 591, First City Monument Bank Plc Vs Rophine Nigeria Ltd (2017) LPELR 42704(CA).

Thus, the Courts have held that where a plaintiff claims repayment of loan, the defence open to the defendant are only two (i) that the defendant had refunded the entire loan by the production of receipts bank tellers or any document showing that the debt was totally repaid, or (ii) that he never borrowed the money in the first place, he never applied for the loan or loans, he never obtained any money and that any purported application was a forgery- Okoli Vs Morecab Finance (Nig) Ltd (2007) All FWLR (Pt 369) 1164 at 1184, Azodo Vs Kay-Kay Construction Ltd (2014) LPELR 24150(CA), Greentek Limited Vs Access Bank Plc (2015) LPELR 25999(CA), Gorkeens Limited Vs Zenith Bank Plc (2017) LPELR 43170(CA). PER ABIRU, J.C.A.

WHETHER OR NOT WHERE A CUSTOMER ADMITS TO TAKING A LOAN FACILITY, IT HAS THE DUTY AND RESPONSIBILITY OF PROVING IT HAD REPAID THE LOAN

Where the customer of a bank admits taking a loan facility, it has the duty and responsibility of proving that it had repaid the loan – Ishola Vs Societe Generate Bank Ltd (1997) SCNJ 23, Saleh Vs Bank of the North Ltd (2006) 6 NWLR (Pt 976) 316, Tilley Gyado & Co (Nig) Ltd Vs Access Bank Plc & 2 Ors (2019) 6 NWLR (Pt 1668) 399. PER ABIRU, J.C.A.

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Minna delivered in Suit No. FHC/MN/CS/37/2015 by Hon. Justice Yellim Bogoro on 21st February, 2018.

The facts of the case as can be gleaned from the record of appeal are that the Respondent as Plaintiff before the lower Court, instituted the action against the Defendant (now Appellant and claimed for the following reliefs:-
a. The sum of N50,622,863.72 (Fifty Million Six Hundred and Twenty Two Thousand Eight Hundred Sixty Three Naira, Seventy Two Kobo), representing the Principal sum plus accrued interest at the rate of 15% per annum drawn up to the 28th day of May, 2015 in settlement of the debt due and owing from the Defendant to the claimant.
b. The sum of N4,000,000.00 (Four Million Naira) as costs for filing and pursuing this claim.

The sum of N50,622,863.72 claimed by the Respondent against the Appellant emanated from the loan facility granted to the Appellant by the defunct Bank PHB, which later became Keystone Bank Limited. The loan facility initially granted to the Appellant was

N20,000,000.00 (Twenty Million Naira). It was upon the failure of the Appellant to repay the loan, the amount rose to N50,622,863.72. It was averred that the Appellant’s failure and refusal to liquidate its indebtedness, affected the operations and ability of the Bank in remitting the funds back to the depositors, hence, the Bank sold off the Appellant’s indebtedness to the Respondent and assigned all the rights and interests thereto, to the Respondent.

Before the trial Court, parties filed and exchanged pleadings. The matter proceeded to trial. The Respondent called a lone witness and tendered exhibits 1-23. The Appellant in addition to its defence, counter-claimed against the claimant. It called a sole witness and tendered exhibits D1-D12. At the close of party’s cases, final written addresses were filed and exchanged. The Judgment of the trial Court was delivered on the 21st February, 2018 wherein the learned trial Judge held that:-
1. The sum of N50,622,863.72 (Fifty Million Six Hundred and Twenty Two Thousand Eight Hundred and Sixty Three Naira Seventy Two Kobo), is awarded to the Plaintiff representing the principal sum plus

all the accrued interest at the rate of the debt due and owing from the Defendant to the claimant.
2. The sum of N200,000.00 (Two Hundred Thousand Naira) as cost of filing and pursuing this claim).

Aggrieved with the decision, the Appellant filed a Notice of Appeal on 7th March 2018, which is predicated on four grounds of appeal. The grounds and their particulars are contained at pages 565 – 566 of the record of appeal. The Appellant sought the relief for an order allowing this appeal, striking out the suit and entering judgment for the counter-claimant.

Briefs of Argument were filed and exchanged in accordance with the Rules of Court. The Appellant’s brief of argument, settled by Obuma Obasi Nwankwo Esq. is dated 16th April, 2018 and filed on the same date. The Appellant also filed Appellant’s Reply Brief dated and filed on 25th September, 2018.

On behalf of the Respondent, their learned counsel Chike Adaka Esq. filed Respondent’s Brief of Argument dated 27th July, 2018 and filed on 31st July, 2018.

On the 9th March, 2020, the appeal was heard. Learned counsel for the Appellant Obuma Obasi Nwankwo Esq. who

adopted the Appellant’s Brief of Argument as well as Appellant’s Reply Brief, distilled five issues for determination, to wit:-
i. Whether the learned trial Judge was right in treating the non signing of the originating special claim form part 3.1 (4) as a mere procedural irregularity.
ii. Whether the statutory requirement of Section 32 of the AMCON Act can be waived by parties.
iii. Whether the learned trial Court was right in relying on an incompetent witness statement on oath.
iv. Whether the statement of claim was validly signed.
v. Whether the learned trial Judge properly evaluated the evidence in support of the counter-claim.

The Respondent on its part adopted the Appellant’s issues for determination as reproduced supra. The determination of this appeal will therefore be on the basis of these issues reproduced above.

ISSUE ONE
Whether the learned trial Judge was right in treating the non-signing of the originating special claim form, part 3.1 (4) as a mere irregularity.
In arguing this issue, learned counsel for the Appellant referred to the Judgment of the lower Court at pages 538 –

539 of the record of appeal and contended that the issue of non-signing of the Originating Special Claim Form, Part 3.1(4) was not resolved by the learned trial Judge before he delved into the statement of claim. He submits that the special claim form filed by the claimant having not been signed, the learned trial Judge was wrong in attempting to cure this fundamental defect by holding that the statement of claim is signed by one Chike Adaka, that the names of Messrs Chike Adaka and Frank Umeukeje are endorsed on it. Counsel referred to the case of IDEGWU V. STATE (2015) 6 NWLR (PT. 1455) at 286 where the Court held that:-
“An initiating process which confers jurisdiction on the Court must be clear and unequivocal and devoid of speculation… In matters of signature in an originating process, there cannot be compromise or departure”.

In concluding, learned counsel urged the Court to answer the issue in the negative and resolve same in favour of the Appellant.

Learned counsel for the Respondent submitted that the Appellant misconstrued the finding and holding of the trial Court on this issue, wherein he contended that the trial

Court determined the issue when it placed reliance on provisions of Part 1.1(1) of the AMCON Practice Directions, 2013, which defines the term signature as including ‘name’ or ‘initials’ by finding, and holding, that the special claim form by which the action was commenced was duly signed in view of the fact that counsel’s names were clearly written on the special claim form. He referred to pages 540 – 541 of the Record of Appeal. Learned counsel also referred to page 71 of the record of appeal where the names of the Legal Practitioners who initiated the process on behalf of the Respondent were clearly written on the special claim Form.

It was further submitted that assuming without conceding that the AMCON Practice Directions, 2013 did not have any such provision which accepts names or initials as signature, the issue relating to defects in the endorsement of processes filed before the trial Court, would ordinarily affect only its procedural and not the substantive jurisdiction; He argued that a party may, either by indolence or willful abandonment of right of complaint, submit to jurisdiction despite procedural

irregularities which otherwise would have affected the jurisdiction of the Court if a party had raised an objection, timeously, upon being served with the offending processes. Reliance was placed on the cases of ALHAJI HASSAN KHALID V. ALH. UMARU ISMAIL & ANOR. (2013) LPELR – 22325 (CA); AMINU IYA PATE V. IDRIS SALEH MUHAMMAD (2016) LPELR – 41175 (CA); EMMANUEL IKPEOGU V. OGUGUA IKPEOGU & ORS. (2016) LPELR – 41057 (CA); HUSSAINI ISA ZAKIRAI V. SALISU DAN AZUMI MUHAMMAD & ORS. (2017) LPELR-42349 (SC). On the strength of the authorities, learned counsel submitted that the issues relating to proper endorsement of processes can affect only the procedural jurisdiction of a Court but not its substantive jurisdiction. He reiterates further that issues of procedural jurisdiction can be waived or abandoned by a failure to raise same on time so as to enable the Court thrash out same, at the earliest opportunity. Counsel submitted that the Appellant’s obnoxious strategy of waiting till the stage of the final written address, after the conclusion of trial and evidence, before raising the issue, puts him in a very bad position. Reliance

was placed on the case ofHUSSAINI ISA ZAKIRAI V. SALISU DAN AZUMI MUHAMMAD & ORS. (SUPRA). Learned counsel urged the Court to agree with the reasoning of the trial Court on page 540 of the record of appeal and to also resolve this issue in favour of the Respondent.

In his reply brief, learned counsel for the Appellant reiterated his position, that the Respondent neither made or placed any mark or sign and did not write his initials on the special form Part 3.1 (4) on which the Respondent commenced the suit. Reliance was further placed on the cases of ACB PLC V. HASTON NIGERIA LIMITED (1997) 8 NWLR (PT. 515) 110 – 139, HERITAGE BANK LTD V. BENTWORTH FINANCE (NIG.) LTD (2018) 9 NWLR (PT. 1625) AT 420 – 442.

Learned counsel further maintained that the non-signing by the Respondent of the Originating Special Claim Form 3.1 (4) on which it commenced or instituted the suit is a non-compliance that affects the root, which affects the competence or jurisdiction of the Court and very fatal to the Respondent. He referred to the case of ORIENT BANK OF NIGERIA PLC V. BILANTE INTERNATIONAL LIMITED (1997) 8 NWLR (PT. 515) PG. 37 – 109 RATIO

He urged the Court to resolve the issue in favour of the Appellant.The stand of this Court is and has always been, that the validity of originating processes – Writs and Statements of Claim-is fundamental, as they determine the competence and thus jurisdiction of the Court to adjudicate on the matter – ADEYEMI SIJUADE V. ELUGBINDIN & 3 ORS. 2017 LPELR – 42702 (CA); DURE CHEM LTD V. SPICA SHOPPING CO. LTD (2012) 3 NWLR (PT. 1287) 348 AT PP 13 – 14. It is the Writ that states the nature of the claim and the reliefs required. The statement of claim gives the details of the cause of action and pleads the documents that are required to prove the case. The statement of claim does not go outside the Writ in its basic and fundamental form. However, it is the statement of claim that supercedes the Writ, and an amended statement of claim has the effect of substituting the original statement of claim, taking effect from the date of the original statement of claim- UDECHUKWU V. OKWUKA (1956) SCNLR 189, ADEWUMI V. A.G. EKITI STATE (2002) 92 LRCN 43.
So where the originating process is incompetent or invalid, it cannot be a foundation

upon which a case can be built upon. Any proceeding or judgment based on it, would be a nullity. OKOYA V. SANTILLI (1990) 2 NWLR PT. 131) 172 AND OBIUWEUBI V. CBN (2011) 7 NWLR (PT. 1247) 405. It is because of the fundamental validity nature of the originating process, that a party cannot amend it if it is invalid or for a defendant to waive it or acquiesce, and a party cannot confer jurisdiction on a Court where it has none. The issue can therefore be raised at any time, even on appeal and even by the Court suo motu or at the Supreme Court – S.L.B CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252) 317 AT 335; and OYEWOLE V. LASISI (2014) LPELR – 23076 (CA) AT PAGE 28.

The complaint of the Appellants here, is that the initiating processes – special claim form and the statement of claim have not been signed, and so the entire action was doomed and cannot be salvaged.
First of all, it is not correct as submitted by learned counsel for the Appellant, that the trial Judge did not resolve the issue of non-signing of the special claim form before delving into the statement of claim. In the last paragraph of page 538 of the record containing

the Judgment, the trial Judge clearly began considering the issue of the special claim form and then agreed with the counsel for the defendant then (now appellant) that an unsigned Writ affects the jurisdiction of the Court. He then went on at page 539, 1st paragraph, to state immediately that:-
“I have considered the originating process filed by the claimant i.e the special form part 3.1 (4)”.
He then went on to look at the issue of signature on the statement of claim which is common to the issue of signature on the special claim form. It is his style and the way he chose to resolves the issue is entirely the discretion of the trial Judge. Nobody can dictate to him how to do that. Once he resolved the issues, how he did so or in what order, cannot be a subject of complaint in that view.
I have looked at the special claim form at page 72 of the record. It states on its face, that:-
“6. The claimant issued their claim form by his legal Practitioner.
7. Claimant legal practitioners address contact details are:-
MESSRS CHIKE ADAKA AND FRANK UMEUKEJE ELITE LAW BARRISTER & SOLICITORS SUITE C16…”

The contention of counsel to the Appellant is that this claim form does not contain the signature of the Respondent’s counsel. A signature on a document is what authenticates the document and it discloses the person who is responsible for it. The question therefore is what is, the signature in this respect? The learned trial Judge rightly referred to Paragraph 1.1(1) of the AMCON Practice Direction 2013 which states:-
“Unless the context dictates otherwise, the following terms have the meaning respectively assigned to them “signature includes name or initials”.
Although the learned trial Judge referred this in respect of the statement of claim it is equally applicable to the special claim form for AMCON cases.
In the special claim form, the names of the legal practitioners who issued the form are given as Chike Adaka and Frank Umeukeje. Since the names have been provided, the special claim form clearly comes within the ambit of Paragraph 1.1(1) of the AMCON Practice Directions 2013. It therefore contains a signature which clearly identifies the person who issued it and the date it was issued. The document has been

authenticated and it is valid and legal. It is a competent special claim form.
Without much ado, the statement of claim which can be found at pages 72 to 79, contains the names of the same two legal practitioners – Chike Adaka and Frank Umeukeje. In addition, the seal of the legal practitioner Chike Adaka, is affixed to the statement of claim (page 79 of the record of appeal). The statement of claim has thus also been validly and duly issued. It is a competent document and the learned trial Judge was right when he held that the two documents are valid and competent, especially as it was the names of the legal practitioners that were supplied and not the name of the firm. This issue is resolved in favour of the Respondent and against the Appellant.

ISSUE TWO
Whether the statutory requirement of Section 32 of the AMCON Act can be waived by parties.
In arguing this issue, learned counsel referred to the case of INEC V. OGBADIBO LOCAL GOVT. (2016) 3 NWLR (PT. 1498) at 167, Sections 32 and 35(1) of the AMCON Act and submitted that the statutory provisions are mandatory in nature and cannot be waived by the parties. He argued that the

learned trial Judge misapprehended the issue when he held that the fact of the purchase agreement was admitted by the Appellant.

It was contented that assuming without conceding that the Appellant admitted the existence of a loan, it cannot ripen into a right entitling the Respondent to enforce same without complying with the mandatory provisions of Section 32 of the AMCON Act. He relied on the case of CENTRAL BANK OF NIGERIA V. OKEFE (2016) 4 NWLR (PT. 1502) 345. Learned counsel submitted further, that the failure of the claimant to adduce or tender in evidence, the purchase agreement it entered into with the Keystone Bank in respect of the eligible Bank Asset over the Defendant’s indebtedness, is fatal to the very institution of the suit as claimant lacks locus standi to invoke the judicial power having failed to show sufficient interest in the suit. He referred to the case of UNITED BANK FOR AFRICA PLC. V. BTL INDUSTRIES LIMITED (2004) 18 NWLR (PT. 904) (SUPRA). Learned counsel further argued that locus standi being a jurisdictional issue, can be raised for the first time on appeal. Reliance was placed on the case of MADUKOLU V. NKEMDILIM (1962)

1 ALL NLR 587 AT 495. He urged the Court to hold that the Respondent has no locus standi to institute this suit and to resolve issue two against the Respondent and in favour of the Appellant.

Learned counsel for the Respondent submitted that the Appellant was confused about the purport of the provisions of Sections 32 and 35(1) of the Asset Management Corporation of Nigeria Act, 2010. He submitted that there is no provision in the AMCON Act or any other statute, which makes it a mandatory requirement, that the instrument by which the Respondent acquires an eligible Bank Asset from an eligible Financial Institution, must be tendered in any legal action as a pre-condition for establishing the locus standi of the corporation in any legal action. He argued that the requirement is only that the relevant obligor/debtor shall be informed of the fact of the purchase of the rights, interests and benefits in respect of his outstanding debt obligations by the corporation. He referred to Sections 33 & 34(b) of the AMCON Act.

It was submitted that the Appellant did not only put the issue of the locus standi of the Respondent in issue vide his pleadings in

his statement of defence, before the trial Court, but he also expressly admitted in writing and by conduct, the fact that the Respondent had acquired the rights and interests in respect of its outstanding debt obligations, from the Bank. He relied on the case of UNITED BANK FOR AFRICA PLC V. BTL INDUSTRIES LIMITED (2004) 18 NWLR (PT.7).

It was further the submission of the learned counsel, that by virtue of paragraph 1 and 12 of the Respondent’s statement of claim, the Respondent specifically pleaded that it purchased the Appellant’s debt from Keystone Bank Plc and even tendered documentary evidence of communicating the fact of the said purchase to the Appellant. Counsel argued that the Appellant neither joined issue nor denied the said specific averment by the Respondent which are deemed admitted. Reliance was placed on Section 123 of the Evidence Act, 2011 and the cases of CONOIL PLC V. VITOL S. A. (2011) LPELR – 19951 (CA), CHUKWU & ORS. V. AKPELU (2013) LPELR -21864 (SC). In concluding, learned counsel urged the Court to affirm the decision of the trial Court on page 543 and to resolve this issue in favour of the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In resolving this issue, it is necessary to refer to the relevant provision of the Asset Management Corporation of Nigeria Act 2010 (as amended) hereinafter referred to as the AMCON Act.

The corporation was established by Section 1 of the AMCON Act as a body corporate and may sue and be sued in its corporate name. By Section 5(a) of the AMCON Act, part of the functions of the Corporation, includes the acquisition of “eligible bank assets from eligible financial institutions in accordance with the provision of this Act”., By Section 5(f), the corporation may “take all steps necessary or expedient to protect, enhance or realize the value of the eligible bank assets that the Corporation has acquired…”. Sections 32 and 33 of the AMCON Act provide:-
32. “An eligible financial institution from which the Corporation has acquired an eligible bank asset shall enter into a purchase agreement with the Corporation in connection with the eligible bank asset acquired…”.
33. “(1) as soon as possible, after the acquisition of an eligible bank asset from an eligible financial institution, the eligible financial

institution shall notify the relevant debtor….of the acquisition of the eligible bank asset by the Corporation.
(2) The Corporation shall not be liable for any failure or delay in notifying any person under subsection (1) of this section and such failure or delay shall not invalidate the eligible bank asset concerned”.
Clearly therefore, the Respondent is clothed with the power to acquire eligible bank assets (which includes a non-performing loan) from an eligible financial institution, and then realize its value. This is re-inforced by the provision in Section 34(1) of the AMCON Act (as amended) which vests the eligible bank asset, such as a non-performing loan, on the Corporation, when it acquires such eligible asset. It shall exercise all the rights and obligation of the eligible financial institution from which the asset was acquired. It can therefore sell off any collateral offered in respect of the loan to the eligible financial institution. It may institute any action in Court, to realize the eligible asset acquired (Sections 35(1) and (4)(a) of the AMCON Act, (as amended).

In the statement of claim, the Respondent averred

that the appellant took a loan from Bank PHB but neglected to pay it back. Although the said Bank PHB had written several letters to the Appellant, it refused to settle its indebtedness. The Respondent then averred that it purchased the said non-performing loan of the Appellant from Keystone Bank Ltd (formerly Bank PHB) in the following words at paragraph 12 of the statement of claim:-
12. “The claimant avers that due to the unyielding and recalcitrant posture of the Defendant towards liquidating its indebtedness to the Bank and in accordance with the provision of the Asset Management Corporation of Nigeria Act 2010, the claimant purchased the Defendant’s debt from Keystone Bank Limited (formerly Bank PHB) as a non-performing loan and the fact of this purchase and takeover of the debt by the claimant from Keystone Bank Limited was communicated to the Defendant via a letter titled ‘Re: Outstanding Indebtedness of Ableem-Petroleum Company Nigeria Limited Demand Notice Dated the 25th Day of October, 2012 with reference number A1/ABJ/C/197/12’. A copy of the letter herein referred to is hereby attached, pleaded and marked as Annexure

B”.
(pages 73 – 74 of the record).

Abdurrazaq Inuwa for the Respondent, in his witness statement on oath, at paragraph 14 (page 80 of the record) also deposed to the fact that the non-performing loan of the Appellant was purchased by the Respondent and this fact was communicated to the Appellant.

The letter referred to at paragraph 12 of the statement of claim can be seen at page 101 of the record. It is a letter reference no A1/ABJ/C/197/12 written by the Respondent to the Appellant informing it of the take-over of the non-performing loan of the Appellant from Keystone Bank, the successor of Bank PHB. The amount was stated to be N31,397,358.10 with a 15% interest per annum with effect from 1st April, 2011. It demanded payment within 21 days.

At page 103 of the record, is a letter written by the Appellant to the Respondent, acknowledging its indebtedness and the fact of the transfer of the loan to the respondent in these words:-
“In reference ….the above named company wish to acknowledge its indebtedness transferred by Platinum Habib Bank to AMCON…”.

Another letter at page 115 of the record, is from

the Respondent to the Appellant showing the fact that the loan obtained by the Appellant from Bank PHB, which became Keystone Bank, had been purchased by the Respondent. It was asked to pay N40 Million. The Respondent replied this letter (page 118 of the record) praying to be allowed to pay N26,400,000 only as full and final payment. It was addressed to the Respondent, which replied (page 119) and refused.

With all these, it is fallacious for the Appellant to argue that the Respondent did not prove the fact of the take-over of the debt from Keystone Bank. The facts were pleaded. There is supporting evidence in the Witness Statement on Oath. The documents were front-loaded. The Appellant did not contest them. In the premise, the trial Judge was right to hold that there is proof of the purchase of the non-performing loan of the Appellant. It was not at all necessary, to tender the purchase agreement.
At any rate, by Section 33(1) of the AMCON Act, it is not the duty of the Respondent to inform the Appellant of the fact of the take-over of the non-performing loan. That duty has been laid squarely on the shoulders of the eligible financial institution

(in this case Keystone Bank). Furthermore, the failure or delay if any, of Keystone Bank to inform the Appellant of the acquisition or take-over of the non-performing loan, will not place any liability on the Respondent or invalidate the eligible asset (non-performing loan) concerned. In the instant case, the Respondent took it upon itself to perform the function of Keystone Bank by informing the Appellant of the fact of the acquisition. There is nothing wrong with this. The Appellant was on notice and was not at all prejudiced. Section 5(f) of the AMCON Act which vests in the Respondent, the right to take necessary steps to protect or realize the non-performing loan of the Appellant has thus vested in it, the necessary locus standi to institute this action – Sections 35(1) and (4)(a) of the AMCON Act as amended. It does not even have to register any security that is part of the eligible bank asset it acquired. Trial Judge was right. Issue no. 2 is resolved in favour of the Respondent and against the Appellant.

ISSUE THREE
Whether the learned trial Court was right in relying on an incompetent witness statement on oath.
In arguing this issue,

learned counsel for the Appellant referred to the inconsistency of dates in the claimant’s witness statement on oath and the additional witness statement on oath which has not been resolved, wherein the learned trial Judge relied on same to make finding for the Respondent. He submitted that the learned trial Judge erred, for the fact that by the admission of witness herself, there is no date in paragraph 2 of the additional witness statement on oath and no other witness statement on oath made on any date in November, 2016 on which additional witness statement can stand on. Learned counsel submitted that parties are bound by their pleadings and evidence adduced orally. He relied on the case of OCTS EDUCATION SERVICE LTD V. PADSON IND. LTD (2013) VOL.9 WRN 132 – 170 AT 142.

It was further the contention of the learned counsel, that both witnesses statements on oath failed to comply with the provisions of the First Schedule to Section 13 of the Oath Act which mandatorily requires the use of the expression, “I do solemnly and sincerely declare” in all witnesses statements that are on oath. He referred to GTB V. ABIODUN LPELR – 42551.

In concluding, learned counsel urged the Court to hold that both statements on oath are incurable, defective and to resolve the issue in favour of the Appellant.

In his response, learned counsel for the Respondent submitted that the witness statement on oath and the additional witness statement on oath deposed to by Respondent’s sole witness before the trial Court and adopted in the open Court, were both duly made before a Commissioner for Oath on the 20th day of December, 2016 and are both competent and valid in all material respects and the trial Court rightly relied on them. He submitted that the fact that there was a mistake in representing the date of the making of the main witness statement on oath in paragraph 2 of the additional witness statement, does not detract from the truthfulness or veracity of all the other paragraphs of the additional witness statement on oath which was duly sworn to before a Commissioner for Oaths and in compliance with the requirement of the Oath Act.

It was contended that it is not the law that a mistake in the representation of dates in a witness statement on oath invalidates the entire witness

statement on oath to the extent of rendering same incompetent or defective for the purposes of conducting legal proceedings. Counsel also maintained that the authority of OCTS EDUCATION SERVICES LTD V. PADSON IND. LTD (2013) VOL. 9 WRN 132 to 170 at page 142 cited and relied upon by Appellant’s counsel has no bearing at all with defects in witness statement on oath.

As to compliance with 1st Schedule to Section 13 of the Oath Act, learned counsel submitted that the fact of existence of any irregularities in the form in which an oath is made cannot vitiate any proceedings conducted with same. Reliance was placed on Section 4(2) of the Oath Act and the cases of MRS. AYOOLA ADETOYI DASOFUNJO V. ALHAJA RUKAYAT TITILAYO AJIBOYE (2017) LPELR – 42354 (CA), MANCHA & ORS. V. EMUKOWATE (2017) LPELR – 43113 (CA). Counsel urged the Court to resolve this issue in favour of the Respondent.

The crux of the submission of the Appellant here, is that the statement on oath of the Respondent’s witness and the additional witness statement on oath are incompetent for failure to comply with Section 13 of the Oath Act. This Section has received

judicial interpretation. In HAMIDU & ANR. V. KADUNA ELECTRICITY DISTRIBUTION PLC & ANR. (2019) LPELR – 48281 (CA), this Court per Wambai JCA, eloquently dealt with the issue of statements on oath. At page 21, she held:-
“…failure to comply with the requirement of Section 13 of the Oath Act renders an affidavit or witness deposition defective and incompetent…”.
She went on to hold that there is compliance with Section 13 of the Oath Act where the statement made on oath:-
“…contains the words that ‘I make this statement on Oath in good faith believing its contents to be true and correct and in accordance with the Oaths Act…”, because the whole essence of Section 13 of the Oath Act “is to ensure that the deponent is solemn and sincere in making the declaration and in the firm belief that the contents of the deposition are true and correct in accordance with the Oath Act”.
In the instant appeal, the witnesses statements on Oath under consideration, ended with the words that the deponent have deposed to them on oath, in good faith, believing the contents to be true,

correct and in accordance with the Oath Act. In my view, these are sufficient compliance with Section 13 of the Oath Act and the 1st Schedule to the Act. See A.G. F. V. BAYAWO (2000) 7 NWLR (PT. 665) 301.
In the case of GTB PLC V. ABIODUN (2017) LPELR – 42551 (CA), this Court held that substantial compliance with Section 13 of the Oath Act, is not enough, as the 1st Schedule to the Section, must be complied with. But in this GTB V. ABIODUN’S CASE (SUPRA), the deponent of the Affidavit on Oath of the Respondent, only stated that “I swear to this Affidavit in truth and in good faith.” That is not the position in this appeal, where the deponents of the statements on Oath stated that they deposed to them on oath, in good faith, believing same to be true, correct and in accordance with the Oaths Act, thus making a solemn declaration on Oath as required by the 1st Schedule to Section 13 of the Oath Act. The facts in GTB V. ABIODUN (SUPRA) are therefore not the same as the facts in this appeal and so, is not applicable. I hold that the statements on Oath had been duly sworn to in compliance with the Oath Act.

On differences on dates, this

clearly amounts to typographical errors that have not affected the validity of the statement of witnesses on Oath. This issue is therefore resolved in favour of the Respondent and against the Appellant. It is to be noted further, that the statements on Oath of the witness of the Respondent, are not the only evidence in support of the pleadings. There is documentary evidence admitted and relied upon by the trial Court as proof of the case of the Respondent.

ISSUE FOUR
Whether the statement of claim was validly signed.
In arguing this issue, it was submitted that the Court process signed in the name of a law firm without indicating the name of the particular legal practitioner who issued and signed the process, is incompetent and is liable to be struck out. Counsel referred to Section 2(1) and 24 of the Legal Practitioners Act, 2004 and the case of SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. SAM ROYAL HOTEL NIGERIA LIMITED (2016) 8 NWLR (PT. 1514). He submitted that in the instant case, the statement of claim was signed by Messrs Chike Adaka and Frank Umeukeje. Learned counsel argued that the claimant statement of claim is

incompetent, improper and incurably bad as the said Messrs Chike Adaka and Frank Umeukeje, Elite Law (Barristers and Solicitors) are not persons in the roll of legal practitioners in Nigeria. Reliance was placed on the cases of EMMANUEL OKAFOR AND 2 ORS. V. AUGUSTINE NWEKE & 4 ORS. (2007) 10 NWLR (PT. 1043) 521; ARON OKARIKA & 4 ORS. V. ISIAH SAMUEL (2013) 1 NWLR (PT. 1352). He further referred to the case of YAKUBU V. FMBN LTD (2015) 11 NWLR (PT. 1470) 232 on the proper and acceptable manner of signing or endorsing a Court process and the case of FEBSON FITNESS CENTRE V. CAPPA H. LTD. (2015) 6 NWLR (PT. 1455) 286 was on the purpose of signing of originating process, to ensure responsibility and accountability on the part of a legal Practitioner who signs the process.

In concluding, Learned counsel urged the Court to hold that the Respondent’s statement of claim dated 22nd of September, 2015 is improper, incompetent, the requirement of Sections 2(1) and 24 of the Legal Practitioners Act having not been complied with.

Responding on this issue, learned counsel for the Respondent referred to page 77 of the record of appeal where endorsement

page of the statement of claim appears and submitted that the statement of claim was duly and vividly signed by a legal practitioner qualified to practice law in Nigeria by the name Chike Adaka. He submitted that Messrs Chike Adaka and Frank Umeukeje are two natural persons, being legal practitioners qualified to have their names inserted in Court processes by virtue of the fact that they both have their names on the roll of legal practitioners at the Supreme Court and the Nigerian Bar Association stamp/seal of Chike Adaka was duly affixed on the Court processes.

It was further submitted that Chike Adaka and Frank Umeukeje were not in any way – represented as a law firm in the originating processes of this suit, which is the kernel of the decision in SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. SAM ROYAL HOTEL COMPANY OF NIGERIA LIMITED (2016) 8 NWLR (PT 1514) AND EMMANUEL OKAFOR & 2 ORS V. AUGUSTINE NWEKE & 4 ORS (2007) 10 NWLR (PT. 1043) 521 relied upon by the Appellant’s counsel. He submitted that the peculiar ingredients in those cases are not the same and clearly distinguishable from the instant case. He also referred

to the case of AYODELE SOLOMON FEMI & ANOR. V. OBA ADESOTE ADEGBOYEGA & ANOR UNREPORTED CA/I/59/2013 where the Court made a clear distinction between the name of a known natural person and qualified legal practitioner represented on a Court process, as opposed to where the name of a law firm, or a person not qualified to practice law in Nigeria, is used in the signing of Court processes.

It was contended that the combined effect of the provision of Sections 2(1) and 24 of the Legal Practitioners Act, LFN 2004 relied upon by the Appellant is that any person who is qualified to practice law in Nigeria may have his name appear as signatory or even co-signatory of any Court process in Nigeria. He argued that in the instant case both Chike Adaka and Frank Umeukeje are entitled to practice law in Nigeria and anyone of them or even both of them could validly sign the originating processes of this suit. Reliance was placed on the cases of [PANALPINA WORLD TRANS PORT HOLDING AG V. CEDDI CORPORATION LIMITED & ANOR. (2011) LPELR – 4827 (CA)], TODAY’S CARS LIMITED V. LASACO ASSURANCE PLC & ANOR (2016) LPELR – 41260 (CA).

On the case of EMMANUEL OKAFOR & 2 ORS V. AUGUSTINE NWEKE & 4 ORS (SUPRA) relied upon by the Appellant where it was held that only human beings actually called to the Bar can practice by signing documents, the Appellant is contending the prefix ‘Messrs’ which appears before the name of Chike Adaka and Frank Umeukeje. Respondent’s counsel submitted that the term ‘Messrs’ is used to refer to the name of more than one male appearing together on a document. He referred to the ENCARTA ENGLISH DICTIONARY AND THE NEW INTERNATIONAL WEBSTER’S COMPREHENSIVE DICTIONARY OF THE ENGLISH LANGUAGE, ENCYCLOPEDIA EDITION, 2004 EDITION AT PAGE 799.

On the appellant’s Submission that a process cannot be signed jointly by two legal practitioners, learned counsel argued that there is nothing intrinsically wrong in having two or more persons jointly signing the same Court process. He referred to the case of EMMANUEL OKAFOR & 2 ORS. V. AUGUSTINE NWEKE & 4 ORS. (SUPRA) and Section 14 of the Interpretation Act. Reliance was further placed on the case of PANALPINA WORLD TRANSPORT HOLDING AG V. CEDDI CORPORATION LIMITED & ANOR

(SUPRA) where it was held that:-
“There is no law which says that a litigant cannot be represented by more than one legal practitioner. What is required is that a legal practitioner known to law must sign processes and not in the name of law firm or partnership”.

In concluding, learned counsel urged the Court to discountenance the misplaced argument of the appellant’s counsel on this issue and to affirm the holding of the trial Court on page 542 of the record of appeal. He further urged the Court to resolve this issue in favour of the respondent.

The subject matter of this issue has already been dealt with in resolving issue no 1. I have held that the special claims form had been signed by Messrs Chike Adaka and Frank Umaukeje. These are natural persons, not a law firm. It is not contended that they are not legal practitioners. The authorities relied upon by the appellant are to the fact that the processes were signed by law firms, not legal practitioners. This was held to be unacceptable and the processes unauthenticated. That is not the position in the instant appeal where the special claims form was signed by legal

practitioners. So the authorities relied upon by the appellant are not applicable to this appeal.

I am also in complete agreement with the submission of learned counsel to the respondent, that there is no basis for the position of the learned counsel to the appellant, that a process cannot have the names of more than one legal practitioner. In TODAY’S CARS LIMITED V LASACO ASSURANCE PLC & ANOR (2016) LPELR – 41260 (CA), this Court per Ogakwu JCA at page 10, emphatically held that:-
“ There is nothing inherently wrong in setting out names of more than one legal practitioner whose names are on the roll of legal practitioners, in a Court process, provided that there are some manner by which the particular legal practitioner who signed can be identified out of the names set out…”
As I found earlier in issue No 1, two names of legal practitioners were provided on the statement of claim. There is nothing wrong with that. Then, there is the signature of one legal practitioner – Chike Adaka. Further, there is the Nigeria Bar Association seal of this legal practitioner affixed to the statement of

claim. Therefore, there is no doubt whatever, that it was this Chika Adaka, a legal practitioner who is identified as the one who factually signed and authorized the statement of claim. The fact that there is no tick against his name is of no moment since his seal which has been affixed to the document has identified him. This is in addition to the holding in Issue No 1, that by operation of Paragraph 1.1 (1) of the AMCON Practice Directions 2013, the names of two legal practitioners on the process, amounts to a signature. This issue is resolved in favour of the respondent and against the appellant.

ISSUE FIVE:
Whether the trial judge properly evaluated the evidence in support of the counter – claim.
In arguing this issue, learned counsel for the Appellant submitted that the learned trial judge erred and failed to resolve what facility sum was granted the appellant by the Bank PHB (now Keystone Bank) before the conclusion that” ‘I have considered and there is ample evidence based on the agreement of parties that the principal sum of loan was not in contest”, without considering exhibits D6, D7 and D8. He referred to

pages 77 and 559 of the record of appeal. He contended that the exhibits are to the effect that the facility amount was N15,000,000.00. He argued that the evidence obtained from the respondent’s witness during cross examination, is against the claimant/Respondent claim in the suit, that the facility sum is N20,000.000.00 which the learned trial judge accepted without justification in direct conflict to the clear evidence before him. He referred to pages 412, 26, 344 – 349 of the record of appeal.

It was also contended that the learned trial judge neglected and failed to consider in his evaluation of evidence, the appellant’s statement of account issued by the Keystone Bank to the Defendant/Appellant – exhibit D10, but rely on the wrongly admitted AMCON account statement tendered as exhibit 23. He referred to pages 341-345, 247-250, 48-49, 121- 122 of the record of appeal.

Learned counsel further opined that the learned trial judge erred and failed to evaluate the evidence adduced on the improper existence of the appellant’s issued account statement on the same name, the same account number, same transaction but domiciled both

in Suleja, Niger State and Kubwa Abuja. He referred to pages 121 – 122, 426, 247 – 249, 250 and 255 of the record of appeal. He maintained further that the learned trial judge erred & failed to take judicial notice of the respondent witness evidence under cross – examination on page 106 of the record of appeal. He also opined that the trial Court descended into the arena and made out a case not canvassed by the respondent when he made a finding on page 560 of the record of appeal.

It was the submission of the learned counsel that the learned trial judge erred when he failed to consider exhibits D5, D4, the writ of summons, statement of claim and the Bank PHB’s statement of defence in Suit No. NSHC/SD/19/2008 and the counter affidavit deposed to by one Cyril Eze of the Auctioneer to the Bank PHB in another pending suit before the Niger State Rent Tribunal sitting at Suleja in the Suit No. SRT/373/2008, over and in respect of the property with the Certificate of Occupancy No. NGS/20234. He referred to pages 298-311 of the record of appeal.

Learned counsel submitted that where a relevant and material document is in the

possession or custody of a party, and he fails to produce same after notice to do so, the presumption is that the document will be unfavourable to him if produced. He referred to Section 167(d) of the Evidence Act. He stated that the statement of account in issue which the respondent willfully refused to produce, would have given the learned trial Court a clear picture of exactly the sum of money in contention particularly when the appellant pleaded and testified that it had repaid N10,700,000.00. He referred to page 414 of the record of appeal.

It was further the argument of the learned counsel that the learned trial judge erred and wrongly dismissed the appellant’s counter claim without considering the evidence adduced by the appellant in proof of its case. He submitted that in the absence of any cogent defence to the counter claim, consideration will only be given to the counter – claim and evidence adduced by the counter – claimant in proof of its case and that where evidence is one sided, the standard of proof is minimal. He urged the Court to so hold. Reference was made to the cases of GARBA V. ZARIA (2005) 17 NWLR (PT. 952)34 AT

58; NEKA BBB MGT CO. LTD V. ACB LTD (2004) 2 NWLR (pt. 858) 521 SC AT 533, UBA PLC V. MUSTAPHA (2004) NWLR (PT. 855)44, MAISJE V. HASSAN (2004)11 NWLR (PT. 883) 118.

Learned counsel maintained that in the instant case, the counter-claimant has adduced evidence, tendered documents and unchallenged and uncontroverted evidence in proof of its averments to entitle it to the reliefs sought against the claimant. (Respondent). He referred to the cases of FAGUNWA V. ADIBI (2004) 59 WRW 1, OLOYE V. OLAYEMI (2013) 9 WRN 92. He finally urged the Court to resolve this issue in favour of the Appellant. He further urged the Court to find merit in the appeal, allow same and enter judgment for the counter – claimant.

In response, it was submitted that the trial Court properly evaluated the totality of all the evidence adduced by the Appellant in support of his counter claim before arriving at the conclusion that the evidential burden cast upon the Appellant, as the counter claimant before the trial Court, was not satisfactorily discharged. Referring to pages 545 to 553 of the Record of appeal, counsel submitted that the trial Court painstakingly evaluated the

evidence adduced by the Appellant in support of his counter claim as well as the evidence adduced by the Respondent in defence of the Appellant’s counter claim. He relied on the cases of DURUMUGO RESOURCES LIMITED V. ZENITH BANK PLC (2016) LPELR – 40487 (CA) and EDEKI MINISTER V. COP (2016) LPELR – 40495, on what constitutes evaluation of evidence.

On the Appellant’s submission that the trial Court descended into the arena, counsel argued that the Appellant’s submission on this is ridiculous. He stated that exhibits 23 being the AMCON statement of account of the Appellant is documentary evidence tendered and admitted in evidence which the trial Court was at liberty to evaluate.

Learned counsel submitted that the trial Court made all its findings pertaining to the Appellant’s counter claim. On the first – counter – claim, he stated that the trial Court found that the Respondent was never a tenant of the Appellant. He referred to page 548 of the record of appeal.

On the 2nd counter claim, learned counsel submitted that the trial Court made a finding on such at page 549 – 550 of the record of

appeal. Also on the 3rd, 4th & 5th counterclaim, learned counsel submitted that those claims were not substantiated by any cogent and credible evidence adduced by the Appellant as rightly upheld by the trial Court on page 553 of the record of appeal.

On the Appellant’s submission on exhibit D10, counsel submitted that the said exhibit rather than support the case of the Appellant, supported the case of the Respondent because it showed a huge negative closing balance of N62,944,054.85 which was far more than the Respondent claim before the trial Court.

It was submitted that all the gamut of evidence adduced by the Appellant’s witness in support of the counter claim before the trial Court is incompetent, on the reason that the witness statement on Oath, which is the fulcrum of the evidence adduced by Appellant’s witness before the trial Court was not made before a commissioner for Oath as required by law and renders it defective and cannot be used for any evidential purpose before a Court of law. He referred to page 441 of the record of appeal and the case of DR. MUHAMMED IBRAHIM ONUJABE & ORS V. FATIMAH IDRIS (2011) LPELR

– 4059 (CA), ONYECHI EROKWU & ANOR. V. JACKSON NWABUFO EROKWU (2016) LPELR – 41515 (CA).

In concluding, learned counsel submitted that the trial Court painstakingly analysed and properly evaluated all the evidence adduced by the parties, before making findings of facts and arriving at conclusion there from. He argued that the scale of justice as weighed by the trial Court was against the Appellant. He referred to MIKE ACHORU V. DECAGON INVESTMENT LIMITED & ANOR (2014) LPELR – 24143 (CA) and EKWEOZOR & ORS. V. THE REGISTERED TRUSTEES OF SAVIOURS APPOSTOLIC CHURCH OF NIGERIA (2014) LPELR – 23572 (CA). He urged the Court to dismiss the appeal in its entirety and affirm the decision of the trial Court.

It is clear from the record, that the trial Judge considered the special claim form and the statement of claim and found them to have been properly signed. He did this by evaluating the processes.

On locus standi, the Judge considered the pleadings of the claimant that it was statutorily mandated to take over non-performing loan of eligible financial institution and found that the claimant (Respondent) had led

evidence to that effect – page 542 of the record. He was right as the letter at page 101 of the record which was front-loaded, clearly establishes this. The learned trial Judge considered the pleadings. He found that paragraph 1 of the statement of claim pleaded the statutory mandate the Respondent has, to take over non-performing loans from eligible financial institutions, and then found that the statement of defence admitted this. The trial Judge then found that paragraph 12 of the statement of claim, which pleaded that the Respondent took over the loan of the Appellant from Keystone Bank and informed the Appellant of this fact, was not denied or countered by the Appellant and so was deemed admitted- page 543 of the record. This demonstrates evaluation. It is worthy of note, that DW1 under cross-examination at page 440 of the record, said he was not aware that Keystone Bank had sold his debt to AMCON and that there is no letter to that effect. This is palpably untrue for the letter at page 101 of the record shows that he was so informed by AMCON. The letter at page 114 of the record shows he wrote to AMCON in his own handwriting, not contesting the

loan or the take-over of the loan, but praying to be allowed to pay N40 million within 180 days, without interest as full settlement of his outstanding debt. The Respondent acceded to this request – page 115 of the record. The Appellant did not honour its undertaking but instead, DW1 wrote the Respondent in his handwriting, praying to be allowed to pay N26,400,000.00 as full and final payment of his obligation – page 118 of the record. The Respondent refused this request. With these documents, it is amazing how DW1 could deny knowledge of the take-over of his loan by the Respondent, from Keystone Bank. He could not have been a witness of truth.

On the issue of service, the learned trial Judge at page 544 of the record stated that:-
“I have considered the statement of defence and counter claim filed by the defendant, this fact is not pleaded and no evidence is led on the issue…”

This is clear testimony that the learned trial Judge evaluated the evidence and came to the conclusion that same had not been proved.

On the counter claim, the trial Judge reviewed and evaluated the evidence. He re-iterated his earlier

finding on issue 1 on locus standi. He then went on to evaluate the evidence in the counter claim of N6, 400,000.00 rent loss on the Suleja property, including exhibits D4 and D5, and then found that:-
“the counter claimant cannot claim the rent accrued from the property given the fact that there is no evidence led or pleaded, that the counter claimant was once a tenant of the counter claimer.”
He then held that:-
“the counter claimant has not proved he is entitled to N6.4m rent accrued from the property:- page 548, the record.”

On loss of bonuses amounting to N200,000, the trial Judge stated at page 549 that:-
“I have scanned through the pleading of the counter claimant and the evidence led, I have not found when the counter claimant pleaded he suffered losses of businesses of goodwill.”

On the counter claimant of N6.8 million, the trial judge reviewed and evaluated the evidence of DW1 from pages 550– 552 and held that it had not been proved.

From all of the above, it is crystal clear that the trial judge indeed evaluated the evidence led, before making his finding, contrary to the

submission of learned counsel to the appellant.

265 & OYINLOLA V OJELABI (2011) 9 NWLR (PT 1251) 200 AT 208. Further, where the evidence is documentary, an appellate Court is in the same position on evaluation, as the trial Court – APE SALISU & ORS V LATEEF ODUMADE (2010) 2 SCNJ 257 of 267.

In the instant appeal, I have looked at the evaluation of evidence carried out by the trial Judge. His findings of facts are consistent with the admissible evidence led before him. He also reached the right conclusion based on the law and facts. We are therefore not in a position to interfere with his findings. To make matters worse for the Appellant, the witness statement on oath was not sworn before a Commissioner of Oath as required by law. There is no stamp or signature of the Commissioner of Oath. Witness agreed under cross-examination that he prepared it in the office. That document is not on Oath and it cannot be used to support the counter-claim. This issue is resolved in favour of the Respondent and against the Appellant.

This appeal lacks merit in toto and is hereby dismissed, with N250,000 costs to the Respondent against the Appellant. The Appellant took a loan from a bank for a

specific project but deviated from that objective, putting the lending bank into financial crisis that has adversely affected the economy of this country. It is as unfortunate as it is sad.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Data Yahaya, J.C.A. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

The appeal is a classic case of the misuse and abuse of the appellate Court process. The Appellant obtained a loan facility of N20 Million from Bank PHB on the condition that it would repay same together with interest. The Appellant neither repaid the loan nor the interest thereon and the loan amount rose to N50,622,863.72 as at the time of the commencement of this action in May 2015. Bank PHB ran into liquidity problems and metamorphosed into Keystone Bank Limited and the loan liability of the Appellant was sold to the Respondent. The Respondent wrote a letter dated the 25th of October 2012 to the Appellant requesting for the repayment of the

loan and the Appellant responded thereto acknowledging its indebtedness to Bank PHB and the fact that the indebtedness has been transferred to the Respondent.

Following further demands for repayment made by the Respondent, the Appellant wrote a letter requesting that the Respondent allow it pay the sum of N40 Million within 180 days in full and final settlement of the indebtedness. The Respondent acceded to the request, but the Appellant failed to abide by its undertaking and did not make any payment. Thereafter, the Appellant wrote another letter praying that the Respondent accept the sum of N26.4 Million in full and final repayment of the debt, and which request the Respondent refused. There was thus no doubt or Contest between the parties on the fact of the Appellant’s indebtedness to the Respondent in respect of the loan it took from Hank PHB. It is trite law that a debtor who benefitted from a loan or overdraft from a bank has both the moral and legal duty and obligation, express or implied, to repay it as and when due – National Bank of Nigeria Ltd Vs Shoyoye (1977) 5 SC 181, Afribank Plc Vs Alade (2000) 13 NWLR (Pt 685) 591,

First City Monument Bank Plc Vs Rophine Nigeria Ltd (2017) LPELR 42704(CA).

In the instant case, having admitted taking the

loan from Bank PHB and of being indebted to the Respondent, there was only one defence opened to the Appellant; that it has repaid the loan. The Appellant did not contend before the lower Court that it had repaid any part of the loan and it did not tender any document evidencing such repayment. The Appellant has not contended in this appeal against the correctness of the finding of the lower Court that it was liable to repay the entire loan sum plus interest. All that the Appellant has come to do, by this appeal, is to canvass some mundane legal technicalities predicated on the form of and formalities in the processes filed by the Respondent in lower Court as a means of avoiding its legal and moral obligations to repay the loan it took. Unfortunately for the Appellant, the Courts are no longer enthralled by such displays and are focused on the substance rather the technicalities of the law. The Courts have shifted away from the orthodox method of narrow technical approach to justice and the weight of judicial opinion is now predominantly in favour of the Court doing substantial justice, as opposed to technical justice. This is because technical justice, in

reality, is not justice but a caricature of it. It is justice in inverted commas and not justice synonymous with the principles of equity and fair play.
In the immortal words of Oputa, JSC inBello Vs Oyo State (1986) 5 NWLR (Pt 45) 826 at 886:
“The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be a handmaid to justice…“
The point was reiterated by Edozie, JSC in Buhari Vs Obasanjo (2003) 17 NWLR (Pt 850) 587 thus:
“The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality … or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands on.”

The lead judgment was totally on point when it flowed with the weight of judicial opinion and rejected the contentions of the Appellant in dismissing the appeal. I too find no merit in this appeal and I dismiss it accordingly. I affirm the judgment of the Federal High Court sitting in Minna in Suit No FHC/MN/CS/37/2015 delivered by Honorable Justice Yellim Bogoro on the 21st of February, 2018. I abide the order on costs in the lead judgment.

AMINA AUDI WAMBAI, J.C.A.: I have read the judgment of my learned brother, ABUBAKAR DATTI YAHAYA, JCA. I am in complete agreement with his reasoning which I adopt as mine and the conclusion that there is no merit in this appeal.
For the same reasons, I also dismiss the appeal as lacking in merit and abide the Order as to cost.

Appearances:

Obuma Obasi Nwankwo, Esq., with him, O. O. Nwankwo & Co.For Appellant(s)

Chike Adaka, Esq., with him, Vitalis Okwaraoha, Esq. and Ifebunachi Onwe, Esq.For Respondent(s)