INTERCONTINENTAL BANK v. TESTWIDE (NIG) LTD & ANOR (2020)

INTERCONTINENTAL BANK v. TESTWIDE (NIG) LTD & ANOR

(2020)LCN/14841(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/A/79/2015

RATIO

WORDS AND PHRASES: DEFINITION OF A STATEMENT OF ACCOUNT

A statement of account was defined in MAINSTREET BANK LTD V. UBA PLC (2014) LPELR-24118(CA) thus:
“The Black’s Law Dictionary (9th Edition) defines Statement of Account at its page 1539 as:

A party is expected to prove his case on the strength of his evidence and not on the weakness of the case for the Defendant. See ADESANYA V. ADERONMU & ORS (2000) LPELR-145(SC) wherein the apex Court held as follows:
“Similarly, it is trite law that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant. The rationale behind this principle is that the plaintiff, having sought relief from the Court but failed to establish his entitlement thereto, ought to have his claim rejected. See Cobblah v. Gbeke (1947) 12 WACA 294; Kodilinye v. Mbanefo Odu 2 WACA 336 at 337; Nana Frempong II v. Nana Brempong II (1952) 14 WACA 13. However, this broad general principle of law does not naturally apply where the defendant’s case itself lends support to that of the plaintiff and contains evidence on which the plaintiff is entitled to rely. See Josiah Akinola and Another v. Fatoyinbo Oluwo and Others (1962) 1 SCNLR 352; (1962) 1 All NLR (pt.2) 224 at 225; Frederick Oduaran and Ors v. Chief John Asarah and Ors (1972) 1 All NLR (pt.2) 137. The question that must now be asked is whether the plaintiff satisfied the Court as to the precise nature of the title to land in dispute that he claimed.”
Per IGUH ,J.S.C ( Pp. 14-15, paras. F-D) PER NIMPAR, J.C.A.
EVIDENCE: MEANING OF AN ADMISSION

An admission has been defined by Section 19 of the Evidence Act, 2011 as:
“a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any person.”
But such admission must be clear and unequivocal and not based on misapprehension. See NARINDEX TRUST LTD V NICMB LTD (2001) 4 SC (Pt.1) 25. Also in the case of ALHASSAN V. ISHAKU (2016) LPELR-40083(SC), the Apex Court on admissions said thus:
“An admission, to my understanding, is a statement, oral or documentary, made by a person which suggests any inference as to any fact in issue or relevant fact. See Narindex Ltd vs NICMB Ltd (2001) 4 SCNJ 208 at 220. See also Section 20 of Evidence Act 2011. It also means a statement by one of the parties to an action, which amounts to acknowledgement by him, that one of the material facts relevant to the issues in controversy in the proceedings is not as he claims it to be. See NAS Ltd vs UBA Plc (2005) All FWLR (Pt.204) 275. Therefore, admission in my view, if it is clear, unequivocal, and cannot be said to be based on any misapprehension of any fact, is binding on the maker and such maker cannot be heard changing it subsequently or at a later stage to suit his supposed new or fresh case or averment.” Per SANUSI, J.S.C PER NIMPAR, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CIVIL CLAIMS

Proof in civil claims is on the preponderance of evidence, it shifts and never static but comes to rest on he who fails to supply evidence, it is called shifting burden of proof, see OKOYE & ORS V. NWANKWO (2014) LPELR-23172(SC) where the Supreme Court held as follows:
“Black, describes it “shifting the burden of proof”, which he defines as:- “Transferring it (i.e. burden of proof) from one party to the other, or from one side of the case to the other, when he upon whom it rested originally has made out a PRIMA FACIE case or defence by evidence, of such a character that it then becomes incompetent upon the other to rebut it by contradictory or defensive evidence.” (see: H. C. Black’s Law Dictionary, 5th ed. P. 1234).”
Per MUHAMMAD, J.S.C ( P. 45, paras. A-D )
Also UNION BANK V. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC), wherein the apex Court held thus:
“… This is because in civil suits, unlike criminal cases, the burden of proofs keeps oscillating among the parties. The Evidence Act 2011 says it all in Sections 131-134. For the purpose of burden of proof in civil suit, the Act states thus: 131. BURDEN OF PROOF. “(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 132. ON WHOM BURDEN OF PROOF LIES. “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 133. BURDEN OF PROOF IN CIVIL CASES. “(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. (2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.” 134. Standard of proof in civil cases. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”
Per BAGE, J.S.C ( Pp. 13-16, paras. D-E)
The burden must of necessity start with the Claimant and unless he places evidence, the other side has no duty to proffer evidence, see HADYER TRADING MANUFACTURING LTD & ANOR V. TROPICAL COMMERCIAL BANK (2013) LPELR-20294(CA) where the Court held thus:
“… Therefore, the general onus is on the Plaintiff to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case. Where a Plaintiff fails to discharge the onus of proof upon him at the close of pleadings, a Defendant is not obliged to adduce any evidence in rebuttal – Woluchem Vs Gudi (1981) 5 SC 291, Olowu vs Olowu (1985) 3 NWLR (Pt.13) 372, Orlu vs Gogo-Abite (2010) 8 NWLR (Pt. 1196) 307, Agala Vs Okusin (2010) 10 NWLR (Pt.1202) 412, Obi Vs Onyemelukwe (2011) 1 NWLR (Pt.1228) 400, Eyo Vs Onuoha (2011) 11, NWLR (Pt.1257) 1. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the Defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Dim Vs Enemuo (2009) 10 NWLR (Pt.1149) 353, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt.1153) 587, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt.1184) 265, Phillips Vs Eba Odan Industrial & Commercial Co. Ltd (2013) 1 NWLR (Pt.1336) 618. This is explained by the maxim “ei qui afirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt.1230) 1.”
Per ABIRU, J.C.A ( Pp. 49-52, paras. F-A) PER NIMPAR, J.C.A.
BANKING LAW: RELATIONSHIP BETWEEN A BANKER AND THE CUSTOMER

That is not allowed in a banker customer relationship which is founded on trust. See FIRST BANK V ORONSAYE (2019) LPELR- 47025(CA) which held:
“It is not in dispute that the relationship between the Appellant and the Respondent was that of Banker and Customer. The Bank therefore owes the Respondent a duty to exercise high standard of care not only in managing the Respondent’s monies but also his information and details which are in its custody. See Mainstreet Bank Ltd v. Juumanwin Nig. Ltd. (2013) LPELR-21855 (CA); Agbanelo v. UBN (2000) 4 SC Pt. 1 Pg 243. Assuming the Bank had given enough explanation regarding how the account in question got mixed up with that of the Respondent’s Late brother after undergoing the three stages of migration, there would not have been need for litigation in the first place. In New Improved Manibannc Ventures Ltd v. FBN Plc. (2009) LPELR 8757 (CA); (2009) 16 NWLR Pt. 1167 Pg. 411, the Court held thus:- “It is settled law that a bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to operations within its contract with its customers. The duty to exercise reasonable care and skill extends over a whole range of banking business within the contract with the customer.” See also Agbanelo v. U.B.N (supra); Diamond Bank Plc v. Dr. Levi Chuks Monanu (2012) LPELR-19955 (CA); Standard Trust Bank Ltd. v. Anumnu (2008) 14 NWLR Pt. 1106 Pg. 125; UBN Plc. v. Chimaeze (2014) 9 NWLR Pt. 1411 Pg. 166 (SC). PER NIMPAR, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

INTERCONTINENTAL BANK PLC (NOW ACCESS BANK PLC) APPELANT(S)

And

1) TESTWIDE NIGERIA LIMITED 2. DR. CHIEF LEKAN BALOGUN RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the of the Federal High Court of the Capital Territory sitting in Abuja delivered by HON. JUSTICE G. O. KOLAWOLE on the 25th March, 2014 wherein the Court below entered judgment against the Appellant. Dissatisfied with the said decision, the Appellant filed a Notice of Appeal on the 12th May, 2014 setting out 5 grounds of Appeal.

The facts leading to this appeal are amenable to brief summary, the Appellant by way of writ of summons dated 5th February, 2010 initiated a claim before the trial Court and sought the following reliefs:
a. For judgment for the sum of N27,196,387.72 (Twenty Seven Million One Hundred and Ninety Six Thousand, Three Hundred and Eighty Seven Naira Seventy Two Kobo) as at 28/01/01 severally and jointly against the Defendants and interest at the rate of 30 percent per annum until final liquidation because the time to repay the facility has expired.
b. Order to sell Plot 2719 Yakubu Gowon Crescent Asokoro Abuja to use the proceeds to repay the facility.
c. An order compelling the Defendants to pay the sum of

N27,196,387.72 (Twenty Seven Million One Hundred and Ninety Six Thousand, Three Hundred and Eighty Seven Naira Seventy Two Kobo) as at 28/01/01 referred to above forth with and interest accruing thereon.
d. An order that the Defendants should pay the cost of the action as well as the cost of perfecting the Deed of Legal Mortgage.
e. And any other order or orders as this Honourable Court may deem fit to make in the circumstances.

Issues were joined by pleadings and the matter went to full trial with parties calling witnesses in proof of their respective pleading. After full consideration the Court below entered judgment against the Appellant, thus the appeal.

Appellant’s brief settled by TAIRU ADEBAYO, ESQ., is dated 4th day of July, 2014 and filed on the same day and deemed the 4th February, 2020 and distilled 3 issues for determination as follows:
a. Having regards to the facts and circumstances of the Plaintiff’s case at the lower Court and evidence led, whether the learned trial Judge was right when he held that the Deposit of the 2nd Respondent’s title document was not as an additional security despite the

content of Exhibit C and dismissed the Plaintiff’s claim? (Grounds 1 & 2 of the Notice of Appeal).
b. Considering the nature of the Respondents’ counter claim and the totality of evidence presented before the trial Court, whether the trial Judge was right in granting the Respondents’ counter claim without the availability of the 1st Respondent’s statement of account and still dismissed the Plaintiff’s case on account of failure to produce the 1st Respondent’s statement of account? (Grounds 1, 3 and 4 of the Notice of Appeal)
c. Whether the judgment of the trial Court is not against the weight of evidence? (Ground 5 of the Notice of Appeal)

The Respondents’ Brief settled by WAHEED GBADAMOSI, ESQ., is dated 21st February, 2018 and filed on the same day but deemed on the 4th February, 2020. It formulated 3 issues thus:
a. From the pleadings of the parties, oral evidence adduced at trial as well as documentary evidence placed before the trial Court whether the learned trial Judge was right when he held that the deposit of the 2nd Respondent’s title documents was meant to be an alternative

security but not as additional security in spite of the content of Exhibit 3. (Ground 1 and 2 of the Notice of Appeal)
b. Whether or not the learned trial Judge was right in granting the Respondents’ Counter-claim in the absence of the 1st Respondent’s statement of account and also dismissed the Plaintiff/Appellant’s case on account of failure to produce 1st Respondent’s statement of account. (Ground 3 and 4 of the Notice Appeal)
c. Whether the judgment of the trial Judge is against the weight of evidence adduced at trial (Ground 5 of the Notice of Appeal)

The Appellant in response to the Respondents’ brief filed a Reply Brief dated 26th March, 2018 and filed on the same day but deemed on the 4th February, 2020.

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant submits that considering the facts of the case and evidence led, the trial learned Judge was wrong to hold that the Deposit of the 2nd Respondent’s title document was not an additional security but to enable the Respondents retrieve the ATCs (Authority to Collect) which the Appellant held as its own security to monitor the periodic

release of trucks of cement to the Respondents. The Appellant refer this Honourable Court to Pages 245-246 of records where the learned trial Judge based his consideration which cannot be taken as the agreement (consensus ad idem) in respect to Exhibit 1 and C2 between parties as they are mere correspondence leading to the preparation and execution of Exhibit C which is dated 28th July, 2008 a recent date both Exhibit 1 & C2 were written. The parties have their own agreement which they reduced their intention into writing, the trial Court cannot read any other or previous correspondence into the contract or agreement between parties except they are incorporated by reference. The Appellant urged this Honourable Court to examine the intention of parties as content in Exhibit C which is the agreement between parties duly executed and hold that the title document of the 2nd Respondent deposited with the Appellant is an additional security. He cited CHABASAYA V. ANWASI (2010) ALL FWLR (PT. 538) P. 861 and AFROTECH SERVICES NIGE. LTD V. M.A. & SONS LTD (2012) 15 NWLR (PT. 692) 730 to support its submission that Exhibit C rightly capture the intention of

parties and the reason for the deposit of the title document is stated in Exhibit C (See P. 75 of records).

Continuing its submission, the Appellant stated that from Exhibit C the deposit of title and the lien on Authority to collect are not alternate as the trial Judge eventually treated it but conjunctive and distinctive. The trial Court’s assumption on the deposit of the title document of the 2nd Respondent is not supported by the evidence led and if the trial Judge had considered the terms of Exhibit C, the conclusion would have been different. The Respondents did not lead any evidence to show that Exhibit C was not duly executed or they were forced to execute same. The Appellant also submits that Court are enjoined not to speculate as the trial Court did in this case but to evaluate the agreement between parties and the Appellant urge this Honourable Court to hold so and to hold that Exhibit C right capture the intention of parties (See P. 245 of Records). He relied on JEGEDE V. FEDERAL REPUBLIC OF NIGERIA (2013) ALL FWLR (PT. 666) p. 594.

Furthermore, the Appellant also submits that the Court and parties are not allowed to read what is not

contained in the agreement of parties, so they cannot read what is not contained in Exhibit C and the Letter of offer dated 28th July, 2008 which were duly admitted in evidence as if it was there. He cited A-G STATE V. A-G, AKWA IBOM STATE (2011) ALL FWLR (PT. 579) 1023 to support his submission. The Appellant urged this Honourable Court to set aside the holding of the trial Court on this issue and to also hold that the deposit of the title documents was in furtherance to the wordings of Exhibit C as an additional security.

ISSUE TWO
The Appellant reproduced the reliefs of Respondents’ counter claim at the lower Court. The Respondents’ Claims are majorly declaratory and the claims for damages are ancillary to the principal claim for declarations. From the Respondents’ evidence before trial Court, they did not prove their entitlement to the grant of same because it is law that declarations are not granted unless they are proved by cogent, credible, reliable and compelling evidence to substantiate the claims even when the adverse party did not object to the granting of same. The Respondents woefully failed to produce such

evidence and the trial Judge erred in the grant of same without such evidence. He cited ADEBIYI V. OKEBIORUN (2009) 15 NWLR (PT. 1165) 576. The Respondents woefully failed to prove their Relief 1 of counter claim with cogent and credible evidence regardless of what is contain in the Appellant’s defence to counter claim. The trial Court and Respondents placed heavy reliance on Exhibits 5 & 1 in proof of her entitlements which were mere correspondence written by the Respondents and addressed to the Appellant despite the existence of Exhibit C (See P. 252 of Records).

The Appellant also submits that declaratory reliefs are not granted merely on an admission of parties or even absence of any defence from the opposing party. See NWAOGU V. ATUMA (2013) ALL FWLR (PT. 693) 1893. The Appellant also refer this Honourable Court to page 25 of record where the Respondent itemized particulars of fraud. Learned counsel to Appellant states that majority of the Respondents’ Claims in their counter claim borders on fraud which the standard of proof is beyond reasonable doubt because fraud is criminal in nature. See NWOBODO V. ONOH (1984) 1 SC P.1,

OMOBORIOWO V. AJASIN (1984) 1 SCNJR, P. 108 AND PHARMATEK INDUSTRIAL PROJECTS LIMITED V. TRADE BANK PLC & 4 ORS (2009) ALL FWLR (PT. 495) 1678, TUNDE ISIAQ & ORS V. OKANLAWON SONIYI (2009) ALL FWLR (PT. 498) 347, EYA V. OLOPADE (2011) ALL FWLR (PT. 584) 28. The Appellant also states that the Respondents failed to discharge the burden of proof as required by the law but the trial Court still granted their claims and awarded the sum of N2 Million as damages for the alleged fraudulent retention of the 2nd Respondent’s title documents. The alleged fraudulent retention of the title document cannot be proved by the content of Exhibit 5 which is a mere correspondence from the Respondents to the Appellant. The standard of prove is beyond reasonable doubt and not balance of probability. Can we be convinced beyond reasonable doubt that by the content Exhibit 5 and Exhibit C, the Appellant fraudulently retain the title documents of the 2nd Respondents? The answer is NO because the intention of parties is as contained in Exhibit C.

Continuing its submission, the Appellant submits that the trial Judge also found in relation to the non-production of the

Statement of Account of the Respondents by the Appellant was fatal to the dismissal of the Appellant’s case (see P. 25 of Judgment) and granted in favour of the Respondents the claim of damages for mismanagement of account of the 1st Respondent by the Appellant when the Court states that “the Court ascertain, the total income which the Plaintiff realized from the said sale”. The finding of the lower is not supported by the evidence because the Court can only make this finding by examining and looking critically at the Statement of account of the 1st Respondent to come to a conclusion given the claim of the Respondents before the trial Court (See P. 22 of the Judgment). Continuing, the Appellant states that the grant of the Respondents’ Counterclaim is not founded on the available evidence provided by the Respondents as the same holding of the Honourable Court above should also apply to the Respondents’ counterclaim.

The Appellant argued that by the examination of Exhibit 5, it can be seen that the Respondents had the opportunity to present Statement of Account as Exhibit 5 was readily written in respect of the Statement of

Account which was not also tendered before the lower Court by the Respondents (see paragraph of Exhibit 5 at P. 46 of records). The Respondents clearly had the Statement of Account which could be the only way the trial Court could have decided and reach a conclusion that the Account of the Respondents with the Appellant was mismanaged but failed to provide same before the lower Court and lower Court still granted the Respondents’ counterclaim and awarded N2 Million Naira as damages. A Counterclaim is separate claim and a Counter-claimant must succeed on the strength of its own case and not on the weakness or absence of defence as stated in OMOTOLA V. ENTERPRISES BANK LTD (2013) ALL FWLR (PT.698) 911 and GUNDIRI V. NYAKO (2013) ALL FWLR (PT.698) 816. Page 25 of the Judgment of the lower Court captures the reasoning of the Court in granting the Respondents’ counterclaim.

Continuing, the Appellant states that even though the Respondents’ witness was not cross-examined, the Respondents are saddle with responsibility of proving their counterclaim especially when it carries the onerous burden of prove beyond reasonable doubt and the principal

claims upon which the claim for damages is routed are claims for declaration as stated in KWAJAFFA V. B.O.N. LTD (1999) 1 NWLR (PT. 587) 423. The Appellant urge this Honourable Court to hold that the Respondents did not prove the declarations sought before the lower Court which the claim for damages is ancillary to. Citing AWONIYI V. THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC (NIG.) (2000) 10 NWLR (PT. 676) 522, the Supreme Court held that if a principal relief fails, other ancillary reliefs must fail.

ISSUE THREE
The Appellant argued that the judgment of the trial Court is against the weight of evidence as the Appellant produced necessary evidence to substantiate her claim against the Respondent for the amount owe. The Appellant through her witness testified that the 1st Respondent owed the Appellant the sum N27,196,387.72 (Twenty Seven Million One Hundred and Ninety Six Thousand Three Hundred and Eighty Seven Naira, Seventy Two Kobo) as at 28th January, 2010 (See Pages 8, 148-160 of record) which was not successfully denied by the Respondents yet the lower Court did not find in favour of the Appellant which it ought to. The case

of the Appellant is founded on Exhibit C which encapsulates the intention of parties as per the Deposit of the Title Document of the 2nd Respondent with the Appellants which the trial Court did dispassionately consider. Citing EZEOKE V. NWAGBO (1988) 3 SCNJ (PT. 1) 37. Both parties executed the necessary documents such as the Deed of Legal Mortgage, the authority to perfect the Deed of Legal Mortgage, authority to collect the Original Certificate of Occupancy by the Appellant. Anything regarding Exhibit C as to whether there was due execution of it, the trial Court is bound to act on it as stipulated under terms. Relying on JEGEDE V. FEDERAL REPUBLIC OF NIGERIA (SUPRA). Continuing, the Appellant states that in respect of the trial Court holding in P.25 of its judgment which is against the express terms of agreement of parties and a term can be varied only by another mutual agreement and not by mere correspondence from the Respondents which was admitted as Exhibit 5, safe in furtherance to the terms in the earlier agreement as to variation. See A-G RIVERS STATE V. A-G AKWA IBOM STATE (supra) 1057 and C.O.E. EKIADOLOR V. OSAYANDE (2011) ALL FWLR (PT.566) 524.

The power to vary or alter the content of Exhibit C lies squarely with the Appellant and not the Respondents as stated in paragraph 13 Exhibit C on P. 77 of records. The argument canvassed by the Respondent and relied by the trial Court is against the weight of evidence especially the terms of Exhibit C. Exhibit 5 which is the letter written by the Respondent cannot stand because the relationship between parties was governed by Exhibit C. It is trite law that a Court cannot rewrite contract for parties as stated inMANYA V. IDRIS (2000) FWLR (PT.23) 1237. Also the holding of the trial Judge at P250 of records is against the weight of evidence.

Continuing, the Appellant argued that assuming without conceding that the issue of the terms of the contract between the Appellant and Respondents is not specific on certain issues as to the use and the number of ATCs to be issued to the Respondents by the Appellant, the holding of the Court at P.250 of records is against the evidence before the trial Court as paragraph 1 of Exhibit C at page 76 of records states that “the terms in Exhibit C shall be used to resolve any controversy”. The wording are very

clear, unambiguous and devoid of misinterpretation by any of the parties and the Appellant urge this Honourable Court to hold that oral evidence cannot be used to vary the terms of an agreement as held in AGBAREH V. MIMRA (2008) ALL FWLR (PT. 406) 559 and MOGAJI V. ODOFIN (1978) 4 SC 91.

Furthermore, the Appellant urged this Honourable to allow this appeal and set aside the judgment of the trial Court and to enter judgment for the Appellant in the sum of N27,196,387.72 as per the relief sought in the writ of summons having proved by credible and cogent evidence.

RESPONDENTS’ SUBMISSION
ISSUE ONE
The Respondents submits that to appreciate whether in actual fact the 2nd Respondent pledged his property for the facility granted to the 1st Respondent in this case, recourse has be made to the pleadings of the parties as well as the evidence adduced at the trial in relation to the property. The first port of call is the statement of claim as well as the witness statement on oath in relation to the property. The Respondents reproduced paragraph 6 of the Plaintiff’s statement of claim and paragraph 8 and 10 of the witness statement on

oath of Vivian Aliboh and their reaction to that is contained in paragraphs 7-13 of their statement of defence and paragraphs 9-15 of the witness statement of oath. The Appellant tendered Exhibits C, C1 and C2 as documentary exhibits to substantiate the fact that 2nd Respondent pledged his property as collateral for the facility. On the other hand, the Respondents tendered Exhibits 1, 2 and 3 as documentary evidence to show that after their application for enhancement which the Appellant rejected but fraudulently retained their title documents.

Continuing, the Respondents submits that a close perusal of the pleading of the parties, evidence adduced and documents tendered as Exhibits will reveal that Respondents actually applied for facility enhancement to N120 Million vide their letter dated April 15, 2008 which is Exhibit C1 and Exhibit 1 tendered by both parties respectively. In the said letter the Respondents submitted the title documents of the property at Plot 2719, off Yakubu Gowon Crescent, Asokoro, Abuja as security as stated in paragraph 4 and 5 of the Exhibit 1 and paragraph 8 of witness statement on oath of Appellant’s witness. Also by

Exhibit 2, the Respondents reapplied vide an application dated 3rd May, 2008 for review of the facility to N100 Million as stated in last paragraph of Exhibit 2. Also the 2nd Respondent equally wrote a letter dated June 5, 2008 tendered as Exhibit C2 addressed to AGIS Recertification office authorizing the Appellant to collect the Certificate of Occupancy in respect of the property at Plot 2719 off Yakubu Gowon Crescent, Asokoro, Abuja. By an application (Exhibit 3) dated 10th October, 2008 the Appellant cancelled all the application for facility review. In spite of Exhibit 3, the Appellant refused to return the title documents of the 2nd Respondent’s property at Plot 2719 off Yakubu Gowon Crescent, Asokoro, Abuja stating that property was used as collateral for N3 Million additional facility vide the letter dated 28 July, 2008 which is Exhibit C. Exhibit C has the following defect:
i. No written application from the Defendants for N3Million was tendered.
ii. No board resolution of the 1st Defendant authorizing the borrowing was tendered as done in respect of Exhibit A2.
iii. The title of Exhibit C is suspect as no request/application for

enhancement of any N77.5 to N80 Million was made and the pleading and evidence of the parties did not make reference to same.
iv. 2nd Respondent was never confronted with Exhibit C under cross examination in spite of the document forming the material fact in controversy.
v. Exhibit C was dated 28th July, 2008 therefore came into existence before Exhibit 3 dated 10th October, 2008 which cancelled request for facility enhancement from the Appellant to the Respondent.

The Respondents submits that Exhibit C dated June 5, 2008 tendered by the Appellant cannot be given any probative value as the said exhibit was written by the 2nd Respondent before Exhibit 3 which cancelled the facility enhancement was written by the Appellant herein. It is safe to ask, can the Appellant herein claim right of lien or withhold title of the 2nd Respondent’s property at Plot 2719, office Yakubu Gowon Crescent, Asokoro, Abuja when no consideration was furnished by it by way of facility enhancement upon which the Respondents surrendered their title document? The answer is NO because the Appellant refused the facility enhancement application of the

Respondents vide Exhibit 3 dated 10th October, 2008. Citing BANK OF THE NORTH V. ADEHI (2003) FWLR (PT. 137) 1135. The 2nd Respondent was never cross examined on his evidence that the title document is not collateral for the facility granted by the Appellant and where a witness is not cross-examined on any issue or fact he has given evidence, the testimony of such a witness is deemed to have been admitted as true as stated in WAEC V. OSHIONEBO (2007) ALL FWLR (PT. 370) 1501.

Finally, the Respondents states that from the pleadings and evidence adduced and tendered, it is crystal clear that the 2nd Respondent did not use his property located at 2719, off Yakubu Gowon Crescent, Asokoro, Abuja as collateral for the Appellant in this case and urged this Honourable Court to hold and also to resolve this issue against the Appellant.

ISSUE TWO
The Respondents reproduced the reliefs contained in their statement of defence/counterclaim and also reproduced the particulars of fraud against the Appellant as contained in the witness statement on oath. From the particulars of fraud and evidence adduced at trial, the trial Court was in no doubt that the

transaction between the parties was indeed hijacked by the Appellant herein and the Appellant thereby breached the duty to exercise reasonable care and skill towards the Respondents. Some of the fraudulent act demonstrated at trial by the Appellant are:
i. The Appellant tendered Exhibit C which on a closer looks shows that there was no application for facility enhancement by N3 Million.
ii. The title of Exhibit C is stated as: Re: Request for enhancement of N77.5m Balance of Overdraft facility by N3m to N80.5m but from pleadings of parties and evidence adduced there is no where the sum of N77.5m or N80.5 is featured
iii. Exhibit C2 was equally tendered which is Authority to Collect C of O of the 1st Respondent’s property meanwhile the transaction that the 1st Respondent issued this letter had been unilaterally cancelled by the Appellant vide Exhibit 3 dated 10th October, 2008.
iv. Exhibit C3 was issued by the Appellant on 20/04/2009 in spite of the existence of Exhibit 3 dated 10th October, 2008.
v. The sole witness of the Appellant to the Court that she cannot recollect the total amount realized by the Appellant from transaction

between Appellant and Respondents herein.
vi. The sum of N27,196,387.72k being claimed against the Respondents was based on bare assertion and no evidence was tendered to substantiate this claim.

The Respondents submits that the Appellant did not challenged the counterclaim of the Respondents by not filing statement on oath in support of their Statement of Defence, thereby placing only pleadings without supporting evidence contrary to the position of the law that pleading alone cannot constitute evidence which made the evidence of the Respondents unchallenged. See OGUNYADE V. OSHUNKEYE (2007) ALL FWLR (PT. 389) SC 1179 and U.B.A. PLC V. DAVIES (2011) ALL FWLR (PT. 576) 547. Continuing, the Respondents states that the Appellant’s failure to lead evidence in support of their reply to counterclaim and the 2nd Respondent led evidence but was not cross examined by the Appellant, it is trite law that where an adversary or his witness is not cross examined on a material fact in controversy, the Court can conclude that the version of the material fact put forth by the adversary or his witness is not disputed as stated in AMADI V. NWOSU (1992) 5 NWLR

(PT. 241) 272. The Appellant’s decision not to cross examine amounts to admission by conduct as stated in ZENON PETROLEUM & GAS LTD V. IDRISIYYA NIG. LTD (2006) ALL FWLR (PT. 312) 2121. The Appellant hijacking the business of the customers and secretly sold 80 out of 100 trucks of cement at an undisclosed amount and the profit made even under cross-examination, the sole witness of the Appellant she told the Court that she did not know the actual number of truck sold and the total amount realized from the transaction by the Appellant. By the facts above, the Appellant breached its duty to exercise reasonable care and skill in relation to its customers as stated in AGBANELO V. UNION BANK PLC (2000) FWLR (PT. 13) 2197.

Continuing, the Respondents states that the Appellant argued that the trial Court ought not to have granted the Respondent’s counterclaim in the absence of statement of account placed before the trial Court, but the Respondent’s counterclaim of N20Million damages for fraudulent management of account and hijacking of the Respondent’s business by the Appellant as the trial Court rightly captured at page 214 of

records that the relief of general damages in nature which require no proof and did not occasioned miscarriage of justice. See also the case of UNION BANK OF NIGERIA PLC V. AJABULE (2012) ALL FWLR (PT. 611) SC 1413.

The Respondent urged this Honourable Court to resolve this issue in favour of the Respondent and against the Appellant.

ISSUE III
The Respondent submits that the reliefs (a) and (c) in the Writ of Summons relates to the alleged debt of N27, 196,287.72k which in substantiating this claim, the Appellant relied on the paragraph 14 of the Witness Statement on oath of one Vivian Aliboh who gave evidence as PW. In response to this allegation, the Respondent reproduced the reliefs contained in their Counterclaim and all the details of the documents tendered as Exhibits. Under cross examination, the Appellant’s witness admitted that the Exhibit C1 which is the Application for N120Million was never granted to the Respondents and the Respondents never apply for N3Million facility. Also the witness states that she did not know the number of ATCS (Authority to Collect) collected or sold by the Appellant and cannot recall the total amount

realized by the Appellant from the facility granted Respondent, yet she wants the Court to grant the Appellant the sum of N27,196,387.72 as at 28th January, 2010 (See P.165-166 of record).

The Respondent also submits that in paragraph 16 of the 2nd Respondent witness statement on oath, he stated that the Respondents are not owing the Appellant the sum of N27,196,387.72 or any sum rather the Appellant is owing them secret profit made from the unlawful sales of 80 trucks of cement by it. He tendered Exhibit 5 which is the summary of the transaction between the Appellant and the Respondent. The Respondents were never cross examined by the Appellant at trial. A close perusal of the evidence adduced at trial by parties will reveal that the claim of the Appellant against the Respondents for a sum of N27,196,387.72 was based on the assertion as no statement of account was tendered to show the Court the accuracy of the Respondents’ account been kept by the Appellant. Its law that for a bank to succeed in it claim for the recovery of debt against its account holder-customer, it should tender the said account and any other book in support of the

indebtedness. Bare assertion of indebtedness is below the standard of proof required. See UNION BANK OF (NIG) PLC V. ISHOLA (2002) FWLR (PT. 100) 1253. By tendering the statement of account, it will show accurately how the figure being claimed was arrived and the Appellant failed to tender, citing U.B.A. PLC V. GBADEBO (2003) FWLR (PT. 186) 644. The claim of the Appellant was that it granted facility of N76.8Million to the Respondents and later an additional facility of N3million then as at 28th January, 2010 the Defendant indebtedness was N27, 196, 387.72k. From the evidence placed before the trial Court, the alleged amount owed the Respondents was made up of:
i. The actual money disbursed by the way of overdraft facility to the Respondent.
ii. The actual amount realized from the transaction
iii. The balance due to the Appellant (if any)
iv. The total amount realized from 80 trucks out of 100 trucks of cement directly sold by the Appellant and the accrued profit thereon.

The Respondent further submits that the evidence led by the Appellant on these points failed to be of assistance to the Court to enable it determine them. The bare

assertion that Respondents are owing the sum of N27,196,387.72 as at 28/01/10 without evidence to support is urging the Court to manufacture evidence to assist the Appellant to win its case. Relying on ACTC LTD V. NACB LTD (2003) FWLR (PT. 181) 1655 and ALHAJI ADEBOLA OLAKUNLE ELIAS V. CHIEF TIMOTHY OMOBARE (1982) ALL NLR 75. Continuing, the Respondent out rightly denied ever owing the Appellant the sum of N27,196,387.72k or any sum as contained in paragraph 14 of statement of Defence and Counterclaim. Also where a party is not cross examined on a material fact in controversy as the Appellant failed to do, the Court can conclude that such fact is not disputed as stated in DAGASH V. BULAMA (2004) ALL FWLR (PT. 212) 1666. Silence in circumstances in which reply is obviously expected raises an irrefutable presumption of admission by conduct; see ZENON PETROLEUM & GAS LTD V. IDRISIYYA (NIG) LTD (2006) ALL FWLR (PT. 312) 2121. Summary of the Appellant’s case which failed for lack of evidence; no statement of account to sustain the claim of the amount owed, no cross examined by the Appellant and Respondent counter claim was never challenged.

Based on the aforesaid the Appellant’s expectation to succeed on appeal tantamount to expecting miracle in his case. see the case of KUTI V. ALASHE (2005) ALL FWLR (PT. 284) 372 and ALLI V. ALESINLOYE (2000) FWLR (PT. 15) SC 2610.

Finally, the Respondent urged this Honourable Court to resolve this issue in favour of the Respondents and to dismiss this appeal.

APPELLANT’S REPLY BRIEF
The Appellant submits that the Respondents argued that from the pleadings of parties, oral and documentary evidence adduced at trial, the trial Judge was right to have held that the deposit of the 2nd Respondent’s title document are meant to be an alternative security but not as additional security in spite of the contents of Exhibit C. The Respondents also argued that Exhibit C is a suspect and should not be given any probative value for reason that the Respondent’s witness during trial was not cross examined on the documents and there was no formal application by the Respondent seeking for the additional facility from the Appellant. In response to the Respondent allegation, Exhibit C is a document that speaks for itself and oral evidence

cannot be used to vary the contents of the document as stated in DRAGETANOS CONSTRUCTION (NIG) LTD V. FAB MADIS VENTURES LIMITED (2012) ALL FWLR (PT. 616) 441 and OGUNDELE V. AGIRI (2009) 40 NSCQR 427. Assuming without conceding that the Appellant cross-examined the Respondents same cannot alter the contents of the documents already admitted by the trial Court. The Respondents’ counsel had ample opportunity to examine the documents and if he had objection on same to raise it during trial but failed to do so. Citing AGBAREH V. MIMRA (2008) ALL FWLR (PT. 409) 559. The Respondents argued that the absence of any board resolution requesting for the additional facility granted by Exhibit C should weigh and suggest to the Court that Exhibit C was not sought for by the Respondents. This will amount to the Respondents benefiting from their own error which the law frown at. The internal workings of the Respondents’ company are their exclusive preserve and a third party acting on their instruction would have constructive notice, regularity and presumption that the necessary preliminaries have been taken care of by the Company.

See TRENCO (NIG) LTD V. AFRICAN REAL ESTATE LIMITED (1978) NSCC 220 and THE PROVISIONS OF SECTION 69 OF COMPANIES AND ALLIED MATTERS ACT.

Continuing, the Appellant submits that the Respondents argued that the damages granted in the sum of N2,000,000.00 (Two Million Naira) is proper and should be sustained in the absence of any statement of account before the Court to show that there is mismanagement in the Respondents’ account. Generally, the law is well settled that you cannot place something on nothing and expect it to stand. The position of the law with respect to the claim of the Respondents in the Counter claims which are principally declaratory in nature is that same are not granted even on mere admission, but must be strictly proved and the Respondents has failed to do this. Any grant of damages not premised on the successful proof of the claims for declarations cannot stand. Furthermore, damages are usually not granted as matter of course but on sound established principle by the party seeking as stated in MAJA V. SAMOURIS (2002) VOL. 8 M.J.S.C. 103.

Furthermore, the Appellant states that the statement of account of the Respondents has made available on

several occasions which showed the outstanding amount on the facility advanced to the Respondents (see P. 4 of records). Since the failure to produce the statement of account by the Appellant is fatal and pivotal to dismissal of its case then same should be applied to the Respondents’ counter claim. The Respondents had the opportunity to tender the statement of account in support of their counterclaim but failed to do so. The trial Court’s conclusion that the absence of statement of account was against the Appellant in proof of its case same should be applied to the Respondents (see p. 248 of record). See ofMANYA V. IDRIS (2000) FWLR (PT. 23) 1237.

The Appellant urged this Honourable Court to allow this appeal and set aside the judgment of the lower Court.

RESOLUTION
Having considered the Notice of appeal, the Record of Appeal and the briefs of the respective parties, the Court is inclined to adopt the issues distilled by the Appellant for resolution in this Appeal for effectual and complete determination of the areas of complaint against the judgment appealed against.

ISSUE ONE:
The complaint in issue one revolves

around EXHIBIT C and the title documents. The trial Judge found that the Appellant failed to prove its claim and thus its dismissal. The main claim was for the sum of N27,196,389.72 (Twenty Seven Million, One Hundred and Ninety Six Thousand, Three Hundred and Eighty Seven Naira Seventy Two kobo) as at 28/01/01 and an order to sell Plot 2719 Yakubu Gowon Crescent, Asokoro Abuja to use the proceeds to repay the facility. The most damaging finding was the failure of the Appellant to tender the statement of account of the First Respondent which the trial Judge found as the root for the claim of the sum outstanding and the order to sell the property. The transaction between the parties can be rooted in a banker-customer relationship over an overdraft facility. It is interesting that the Appellant tenaciously hangs on the belief that it can establish the outstanding sum against the Respondents without a statement of account clearly showing what was outstanding and from when. A statement of account was defined in MAINSTREET BANK LTD V. UBA PLC (2014) LPELR-24118(CA) thus:
“The Black’s Law Dictionary (9th Edition) defines Statement of Account at its page 1539 as:

“a report issued periodically (usually monthly) by a bank to a customers’ account, including the checks drawn and cleared, deposits made charges debited and the account balance.”
A party is expected to prove his case on the strength of his evidence and not on the weakness of the case for the Defendant. See ADESANYA V. ADERONMU & ORS (2000) LPELR-145(SC) wherein the apex Court held as follows:
“Similarly, it is trite law that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant. The rationale behind this principle is that the plaintiff, having sought relief from the Court but failed to establish his entitlement thereto, ought to have his claim rejected. See Cobblah v. Gbeke (1947) 12 WACA 294; Kodilinye v. Mbanefo Odu 2 WACA 336 at 337; Nana Frempong II v. Nana Brempong II (1952) 14 WACA 13. However, this broad general principle of law does not naturally apply where the defendant’s case itself lends support to that of the plaintiff and contains

evidence on which the plaintiff is entitled to rely. See Josiah Akinola and Another v. Fatoyinbo Oluwo and Others (1962) 1 SCNLR 352; (1962) 1 All NLR (pt.2) 224 at 225; Frederick Oduaran and Ors v. Chief John Asarah and Ors (1972) 1 All NLR (pt.2) 137. The question that must now be asked is whether the plaintiff satisfied the Court as to the precise nature of the title to land in dispute that he claimed.”
Per IGUH ,J.S.C ( Pp. 14-15, paras. F-D)
The Appellant contended that there was an admission and the trial Judge held that there was none in the pleadings and evidence before the Court. An admission has been defined by Section 19 of the Evidence Act, 2011 as:
“a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any person.”
But such admission must be clear and unequivocal and not based on misapprehension. See NARINDEX TRUST LTD V NICMB LTD (2001) 4 SC (Pt.1) 25. Also in the case of ALHASSAN V. ISHAKU (2016) LPELR-40083(SC), the Apex Court on admissions said thus:
“An admission, to my understanding, is a statement, oral or documentary, made

by a person which suggests any inference as to any fact in issue or relevant fact. See Narindex Ltd vs NICMB Ltd (2001) 4 SCNJ 208 at 220. See also Section 20 of Evidence Act 2011. It also means a statement by one of the parties to an action, which amounts to acknowledgement by him, that one of the material facts relevant to the issues in controversy in the proceedings is not as he claims it to be. See NAS Ltd vs UBA Plc (2005) All FWLR (Pt.204) 275. Therefore, admission in my view, if it is clear, unequivocal, and cannot be said to be based on any misapprehension of any fact, is binding on the maker and such maker cannot be heard changing it subsequently or at a later stage to suit his supposed new or fresh case or averment.” Per SANUSI, J.S.C
The trial Judge searched for the admission and could not find any, the Appellant himself could not pinpoint where the admission of the said sum claim was made. Admission is not what needs a serious search, it should be what is obvious and clear. In the absence of an admission, the burden is on the Appellant to prove that the outstanding sum unpaid is N27,196,389.72 (Twenty Seven Million One Hundred and Ninety

Six Thousand, Three hundred and Eighty Seven Naira Seventy Two kobo). Proof in civil claims is on the preponderance of evidence, it shifts and never static but comes to rest on he who fails to supply evidence, it is called shifting burden of proof, see OKOYE & ORS V. NWANKWO (2014) LPELR-23172(SC) where the Supreme Court held as follows:
“Black, describes it “shifting the burden of proof”, which he defines as:- “Transferring it (i.e. burden of proof) from one party to the other, or from one side of the case to the other, when he upon whom it rested originally has made out a PRIMA FACIE case or defence by evidence, of such a character that it then becomes incompetent upon the other to rebut it by contradictory or defensive evidence.” (see: H. C. Black’s Law Dictionary, 5th ed. P. 1234).”
Per MUHAMMAD, J.S.C ( P. 45, paras. A-D )
Also UNION BANK V. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC), wherein the apex Court held thus:
“… This is because in civil suits, unlike criminal cases, the burden of proofs keeps oscillating among the parties. The Evidence Act 2011 says it all in Sections 131-134. For the purpose of burden of proof in

civil suit, the Act states thus: 131. BURDEN OF PROOF. “(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 132. ON WHOM BURDEN OF PROOF LIES. “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 133. BURDEN OF PROOF IN CIVIL CASES. “(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. (2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.

civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the Defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Dim Vs Enemuo (2009) 10 NWLR (Pt.1149) 353, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt.1153) 587, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt.1184) 265, Phillips Vs Eba Odan Industrial & Commercial Co. Ltd (2013) 1 NWLR (Pt.1336) 618. This is explained by the maxim “ei qui afirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt.1230) 1.”
Per ABIRU, J.C.A ( Pp. 49-52, paras. F-A)
The Appellant having failed to tender the statement of account, the Respondent has no duty with regards to the statement of account. The Appellant keeps the registers and ledgers where all the financial activities of the 1st Respondent is kept. The Appellant has the correct record and since it’s also the Claimant here, it has a bounden responsibility to disclose and tender the statement of account. There is no

how a debtor’s indebtedness derives from overdraft can be determined without a statement of account which is a sine quo non to any recovery of debt. In doing so, he must present the documentary and oral evidence to prove the indebtedness, see SKYE BANK V OLOWOKERE & ANOR (2015) LPELR-40280(CA) which held thus:
“Any creditor who claims a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall debit balance was arrived at. See Okplewu v. Okplewu and Anor (2011) LPELR 4056 per Akaahs JCA (as he then was now J.S.C), Habib Nig Bank Ltd v. Gift Unique Nig Ltd (2004) 15 NWLR (Pt 896) 408 and Yusuf v. ACB (1986) 1-2 SC 49.”
Coincidentally, the Appellant neither showed by documentary evidence nor oral evidence to justify the claim. There is no how the Court can know how the amount claimed was arrived at. The sole witness of the Appellant who is the relationship manager did not help the case of the Appellant. Being the foundation and the root upon which all the reliefs rests, the failure to tender the statement of account had destroyed the case of the Appellant.

The main question under issue one is the purpose to which title documents were presented by the 2nd Respondent and this revolves around Exhibit C and whether Exhibit I dated 15/4/08 was overtaken by the letter written to the Appellant on 25/8/09 which referred to the purpose for depositing the title documents. The Appellant contends that Exhibit C represent the contract between the parties and the purpose of depositing the title document is clearly stated there. Looking at EXHIBIT C, there is an impeaching feature against the said Exhibit C which is the fulcrum of the case of the Appellant. The document was merely dumped on the Court as observed by the trial Judge. There was no oral evidence to tie to the case of the Appellant. There is also no bearing on the record that any witness testified and demonstrated their value in the open Court. Such documents have no value, see the case of MAKU & ANOR V. AL-MAKURA (2015) LPELR-41814 (CA) where the Court held:
“The law is settled that there must be link between document and the specific area of the case of a party. See the case of Omisore v. Aregbesola. Without evidence of any connection,

the documents will be of no value as rightly held by the trial Tribunal and approved by the lower Court.” Per OGUNBIYI, J.S.C.

The sole witness for the Appellant told the Court below that it was because of the enhancement of the facility to 120 Million offered to the Respondents that the 2nd Respondent deposited his title documents but was unaware of the written for enhancement to N100 Million because of the lending limit of the Regional office. The initial grant was N76.8 Million and letter that led to Exhibit C was sent to head office. The Appellant made effort to prove that the security was meant to secure the N80Million which is meant to be the initial overdraft and additional N3Million Naira the total exposure of the Respondents. This was meant to be proved without the statement of account to show how much was disbursed and how much had been repaid. The question is, without proving that there is an outstanding sum, can the question of selling the property which was surrendered as security even arise? The Appellant also in the course of the relationship collected and sold 80 trucks of cement out of the 100 trucks allocated to the

Respondents. The ATCs were kept with the Appellant as security for the overdraft. The statement of account of how the Appellant managed the 80 ATCs used to collect cement was also not established. It is after that account is rendered to the Respondents that the Appellant can have the justification to go after other securities to realize the financial expose of the Respondents. The Appellant in deed breached it duty to the Respondents by selling cement collected through 80 trucks when it was the Respondents business. If payment was effected into the Respondents’ account, that could only be shown from the statement of account which was not tendered. The Appellant exclusively managed it and kept mute and not being accountable. That is not allowed in a banker customer relationship which is founded on trust. See FIRST BANK V ORONSAYE (2019) LPELR- 47025(CA) which held:
“It is not in dispute that the relationship between the Appellant and the Respondent was that of Banker and Customer. The Bank therefore owes the Respondent a duty to exercise high standard of care not only in managing the Respondent’s monies but also his

information and details which are in its custody. See Mainstreet Bank Ltd v. Juumanwin Nig. Ltd. (2013) LPELR-21855 (CA); Agbanelo v. UBN (2000) 4 SC Pt. 1 Pg 243. Assuming the Bank had given enough explanation regarding how the account in question got mixed up with that of the Respondent’s Late brother after undergoing the three stages of migration, there would not have been need for litigation in the first place. In New Improved Manibannc Ventures Ltd v. FBN Plc. (2009) LPELR 8757 (CA); (2009) 16 NWLR Pt. 1167 Pg. 411, the Court held thus:- “It is settled law that a bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to operations within its contract with its customers. The duty to exercise reasonable care and skill extends over a whole range of banking business within the contract with the customer.” See also Agbanelo v. U.B.N (supra); Diamond Bank Plc v. Dr. Levi Chuks Monanu (2012) LPELR-19955 (CA); Standard Trust Bank Ltd. v. Anumnu (2008) 14 NWLR Pt. 1106 Pg. 125; UBN Plc. v. Chimaeze (2014) 9 NWLR Pt. 1411 Pg. 166 (SC). I disagree with the Appellant’s counsel that the onus is on

the Respondent to prove that he operated the account in question. In the ordinary course of Banking business, it is the bank that has the most reliable record of every customer’s transaction right from the opening of such account. Customers rarely have a record of their account opening details. The Appellant who has a reliable custody of details should have provided the account opening details of the Respondent’s two account numbers. Having failed to clarify and or rectify the mix up which occurred on the Respondent’s account and that of his Late brother, I agree with the learned trial judge that the bank did not exercise reasonable care and skill as regards the Respondent’s Records with it. I am of the view given the circumstances of this case and the specific claim of the Respondent that the Respondent has been able to prove that the Bank wrongly declared his account missing and were wrong to have transferred same to another person. In the circumstances of this case, the contractual relationship between the Appellant and the Respondent imposes a duty of care on the Appellant as a Banking institution, the breach of which will impose on the bank a liability of

negligence. Negligence by a bank consists of any act or omission in the course of performing services for a customer that is not in accordance with the standard of conduct reasonably expected of a banker in such circumstances. See United Nig Insurance Co. v. Muslim Bank of West Africa (1972) 4 SC 67. In Diamond Bank Plc. v. Wellcare Alliance Ltd. (2015) LPELR-40762 (CA), the Court held as follows: “I share the re-instatement of the law by my learned brother that the Appellant as a banker to the Respondent owed the Respondent a duty to exercise reasonable care and skill the breach of which entitles the Respondent to claim damages for negligence. It is settled law that the legal relationship between a bank and a customer based on contract is that of a Creditor and Debtor, or Principal and Agent. The creditor/Principal being the customer and the Debtor/agent being the bank. The contractual relationship imposes a duty of care on the Bank the breach of which will impose on the bank a liability of negligence. See Standard Trust Bank Ltd. v. Anumnu (2008) 14 NWLR Pt. 1106 Pg. 125; UBA Plc. v. Godm Shoes Industries (Nig.) Plc. (2011) 8 NWLR Pt. 1250 Pg. 590.”
Per OGUNWUMIJU ,J.C.A (as he then was) Now JSC.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I have gone through the Exhibits and I also agree with the trial Judge in his findings as follows:
‘‘The picture is clearer, when one reads part of the 3rd paragraph of Exhibit “5” on its page 1. It reads: ”One of these interventions enabled you, through your Legal department, to fraudulently make us to surrender our property as security on the understanding that you would release our ATCs” so that we could sell the products ourselves. But later as usual, you reneged to the utter embarrassment of your Legal department. You chose to hold on to the ATCs as guarantee, insisting on domiciliation of payment as guarantee and still fraudulently acquired the personal property of our chairman as guarantee, all in a bid to eat your cake and have it.”
This can be traced to Exhibit 1 paragraph 4 which states:
“For the ATCs to be released to us, the facility will now be secured with a property located at Yakubu Gowon Crescent Asokoro, Abuja owned by our chairman, Senator Lekan Balogun and valued at N250milllion.” The Appellant did not show its

response to the quoted portion above which could have supported its reliance on Exhibit C to support its claim that the deposit of title documents was meant for additional facility. The additional N3Million requested for, and for which the Appellant ties to the deposit of title was in any case refused and was not granted so why was the title document retained since the enhancement was denied. Exhibit C was made after Exhibit I – on the 5/6/08 while Exhibit I was made on the 15/4/08. The explanation made by the Appellant is flawed and cannot stand. All the Exhibits point to one thing, which for the Respondent to collect ATCs retained by the Appellant in exchange for the title documents. The title was not additional security.

I agree with the trial Judge and find in favour of the Respondent under issue one.

The next issue focuses on the counterclaim filed by the Respondents. The trial Judge awarded the relief under the counterclaim to the Respondents. Having found that the Exhibit C, having been dumped on the Court has no value, it could not have inured any advantage in favour of the Appellant who was Defendant to counterclaim. It also means that

the purpose for which the title document was deposited was not established and therefore no valid reason to establish why the deposit was made and consequently, the retention will have no basis and in view of the sale of 80 ATCs trucks of cement without accountability lends credence to the assertion made by the Counterclaimant.

I agree that declarations are not made even on admission but on evidence presented by the Claimant, see AKANINWO & ORS V. NSIRIM & ORS (2008) LPELR-321(SC) wherein the apex Court held as follows:
“…This is because the law is well settled that the Court does not make declarations of right either on mere admissions or in default of defence without hearing appropriate evidence and being satisfied with such evidence. See Metzger v. Department of Health & Social Security(1977) 3 All E.R. 444 at 451 where Megarry, V.C. said:- “The Court does not make declaration just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument not merely after admission by the parties. There are no declarations without arguments, that is quite plain.”

See also Wallensteiner v. Moir (1974) 3 All E.R. 217; Vincent Bello v. Magnus Eweka (1981) 1 S.C 101; Motunwase v. Sorungbe (1988) 4 N.W.L.R. (Pt. 92) 90; Okedare vs. Adebara (1994) 6 N.W.L.R. (Pt. 349) 157 at 185; Quo Vadis Hotels and Restaurants Limited v. Commissioner of Lands Midwestern State & Ors (1973) “6 SC 71 at 96; Agbaje v. Agboluaje (1970) 1 All N.L.R 21 at 26 and Fabunmi v. Agbe (1985) 1 N.W.L.R. (Pt. 2) 299 at 318 where Obaseki J.S.C said- “A claim for declaration of title is not established by admissions as the Plaintiff must satisfy the Court by credible evidence that he is entitled to the declaration. The Court does not grant declaration on admission of parties. It has to be satisfied that the plaintiff owns the title claimed.”
Per MOHAMMED, J.S.C ( Pp. 20-21, paras. B-C).

Reliance on Exhibit 1 and 5 becomes imperative when those are the only document evidence available for evaluation, Exhibit C was dumped and the Court cannot evaluate same. The Court lacks the competence to do in the recess of its chambers what the party should have done in the open Court. See OSOKOYA V. ONIGEMO (2017) LPELR-42730(CA) wherein the Court held as:

“…a trial Court cannot on its own embark upon an inquiry or is it inquisition into the document in the recess of its Chambers to make findings of facts on which issues were not joined by the parties in their pleadings. In my view, such a duty is clearly outside the scope of evaluation of evidence. Thus, while a trial is not an investigation, conversely investigation is not the function of the Court. A Court has no duty doing cloistered justice by making an enquiry into the case outside what was demonstrated in the Court by the parties in the recess of his Chamber. See Duriminiya V. COP. (1961) NNLR 70 @ p. 74. See also Saude v Abdullahi (1999) 5 NWLR (Pt.601) 94 @ p.99 held: “see also FGN v AIC Ltd. (2006) 4 NWLR (Pt.970) 1; Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt. 620) 552; Owe v. Oshinbanjo (1965) 1 All NLR 72; Alhaji Onibudo v. Alhaji Akibu (1982) 7 SC 60; Jalingo v. Nyame (1992) 3 NWLR (Pt.231) 538; Ugochukwu v. Co-Operative Bank Ltd. (1996) 7 SCNJ 22; The Queen v. Wilcox (1961) SCNLR 296; Adesoye V. Gardner (1977) NNLR 136; Senator Ibikunle Amosun V. INEC & ORS. (2010) LPELR 4923 CA @ p.172.”
Per GEORGEWILL, J.C.A ( Pp. 25-27, paras. E-A ).

On the allegation of fraud, it is obvious that the Counter-claimant failed to plead fraud and to prove same. The award made by the trial Judge was not based on the allegation of fraud and therefore, the reliance on that singular paragraph to whip up the issue of fraud in order to set aside the findings is flawed. I agree with the Appellant that the allegation of fraud is a criminal allegation and when crime is alleged in a civil proceedings, it must be proved beyond reasonable doubt. See OKORONKWO V. ORJI (2019) LPELR-46515 (CA), where the Court held thus:
“By law, where criminal wrong doing is alleged in a civil proceeding, the person raising same has the duty to prove the allegation on the same standard of proof meant for criminal offence – beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. Raymond Dongtoe Vs Civil Service Community Plateau State & Ors (2001) LPELR – 959 SC; Daudu Vs FRN (2018) LPELR – 43637 SC; Mohammed Vs Wammako & Ors (2017) LPELR – 42667 SC, where it was observed: “What is even worse in the instant case is the fact that the Plaintiff made a host of criminal allegations against the 1st

Respondent. He thus had a duty to prove these allegation beyond reasonable doubt, Ndoma-Egba Vs ACB Plc (2005) 7 SC (Pt.111) 27; APC Vs PDP (2015) 15 NWLR (Pt.1481) 1, 66 – 67.”Per MBABA ,J.C.A ( P. 27, paras. B-F)
And the standard of pleadings required is that it must be particularized and proved to a criminal standard of proof beyond reasonable doubt, see OLALEYE V. TRUSTEES OF ECWA (2010) LPELR-4743(CA) where the Court held as follows:
“Ancillary to this is that a party who alleges fraud must plead the particulars of the fraud. See Order 27 Rules 4 and 1 of the Kwara State High Court Civil Procedures Rule, ALL STATES TRUST BANK VS. NSOFOR (2004) ALL FWLR (PT.201) 1719, WEST AFRICA BREWERIES LTD VS. SAVANNAH VENTURES LTD. (2002) FWLR (PT. 112) 53 OLAGUNJU V. ADESOYE (2004) ALL FWLR (PT 232) 1416. The question of fraud is a very serious crime and in civil matters, it must be especially pleaded with particulars and proved strictly, see FABUNMI V. AGBE (1985) 1 NWLR (PT2) 299 SC. This stems from the fact that where fraud is regarded as a crime in our jurisprudence and as such, where crime is alleged in civil proceedings, the standard of proof

is higher; see E.D TSOKWA MOTORS & SONS CO LTD V. UBN LTD (1996) 10 NWLR (pt. 478) 281 S.C and the standard of prove in crime is beyond reasonable doubt See NEBO V. F.C.D.A & ANOR (1998) 11 NWLR (PT. 574) 480 at 497. The Appellant relied greatly on his allegation of fraud and made a strong of same which had been founded upon.”
Per DENTON-WEST, J.C.A ( P. 50, paras. B-F).

The Appellant contended that the Respondents did not tender a statement of account, the question is to what purpose? To prove which paragraph of the counterclaim? The Respondents were not seeking any relief which would require the statement of account. They had no duty to tender the statement of account. Rather, it was the duty of the Appellant to tender the statement of account to show that the Respondents were still owing. The assertion that the Appellants mismanaged the account of the Respondents makes it imperative for the Appellant to present the statement of account in order to prove that they did not mismanage the account. The Respondents made a negative pleading and have no burden of proof. It is he who asserts the positive that has the burden of proof.

See DASUKI V. FRN & ORS (2018) LPELR-43897(SC) wherein the Supreme Court held as follows:
“The law is settled: he who asserts must prove. That is the essence of Section 131(1) of the Evidence Act, 2011. The burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side: Section 132 of the Evidence Act.”
Per EKO, J.S.C ( P. 13, paras. D-F )
EXHIBIT 5 is relevant and it shifts the burden on to the Appellant, and the trial Judge held rightly with regards to Exhibit 5.

On whether there was adequate evidence to support the grant of relief in the counterclaim, the Appellant did not challenge the counterclaim by evidence and did not even cross examine the witness who testified. In such a situation, the burden of proof is light. See GAJI & ORS V. PAYE (2003) LPELR 1300(SC).
And the standard is that the Judge must be satisfied with the evidence tendered before making a declaration.

In any case, I do not see any head of claim in the counterclaim that is a relief seeking declaration. The declaration was not used by the Counter-claimant. The Appellants’ counsel is reading into the

counterclaim what is not there, when both Courts and parties have been admonished not to read into Court document what is not obviously presented therein, see KAYDEE VENTURES LTD V. THE HON. MINISTER FCT & ORS (2010) LPELR-1681(SC) wherein the apex Court held as follows:
“…the parties and the Court will not be allowed to read into the contract extraneous terms on which they reached no agreement as the Court cannot make a contract for the parties. The primary duty of the Court in the circumstance is limited to interpretation and enforcement of the terms of the contract as agreed by the parties thereto – See Koiki vs Magnusson (1999) 8 NWLR (Pt. 615) 492: Int. Textile Ind. (Nig) Ltd vs. Aderemi (1999) 8 NWLR (Pt. 614) 268.”
Per ONNOGHEN ,J.S.C ( Pp. 52-53, paras. F-B)
None declaration was sought for and it is therefore erroneous to find that a declaration was made. I find against the Appellant under issue two.

Having evaluated the evidence that was relied upon by the Court below, the question of weight of evidence to support the reliefs granted cannot be in doubt. The Appellant failed to tender the most potent weapon it had

against the Respondents and therefore, all arguments are to no useful purpose and couldn’t have inured it any benefit. The Appellant required the statement of account to succeed but failed to tender same. His case was flawed and cannot be revived at this stage. There is no useful purpose doing an evaluation without the fundamental document which is at the root of all reliefs sought by the Appellant. The legal mortgage cannot stand without the statement of account showing that the Respondents were still indebted to the Appellant. All reliefs sought by the Appellant are founded on the allegation that the Respondent’s were still indebted. If there was no indebtedness, why would a Court allow the sale of a mortgaged property? It is the statement of account which was defined earlier in MAINSTREET BANK LTD V. UBA PLC (SUPRA) and which shows details of all transaction on the Respondent’s account. That is a forensic details of all activities from which a history can be created and relevant findings can be made towards the liability of the Respondents.

The Appeal is not meritorious and is hereby dismissed. The judgment of the trial Court is hereby affirmed.

JUDGMENT ON CROSS APPEAL
This Cross Appeal is against the decision of the of the Federal High Court of the Capital Territory sitting in Abuja delivered by HON. JUSTICE G. O. KOLAWOLE on the 25th March, 2014 wherein the Court below awarded the sum of N2 Million as damages arising from mismanagement and hijacking of the Cross-Appellants’ business by the Cross-Respondent. The Counter-claim of the Cross-Appellant for N20million as damages was never challenged and the Cross-Respondent Counsel’s never cross examined on that claim yet the trial Court awarded a meager sum of N2Million as damages against unchallenged N20 Million damages asked for the cross-Appellant. Dissatisfied with the said decision, the Cross-Appellants filed a Notice of Appeal on the 22nd May, 2014 donating one ground of Appeal.

Cross-Appellants’ brief settled by WAHEED GBADAMOSI, ESQ., is dated 16th day of March, 2016 and filed on the same day and distilled 1 issue for determination as follows:
Considering the facts and circumstances of this case whether the damages of N2 Million awarded by the trial Court as against the

unchallenged N20Million damages sought by the Cross-Appellants was not too low. (Ground one)

The Cross-Respondent’s Brief settled by TAIRU ADEBAYO, ESQ., is dated 8th July, 2016 and filed on the same day and it formulated one issue thus:
Having regards to the facts and circumstances of the Counterclaim of the Cross-Appellant’s at the Lower Court and evidence led, whether the Learned Trial Judge was right when the Honourable Court awarded the sum of N2,000,000.00 (Two Million Naira) against the Cross-Respondent? (Ground one)

The Cross-Appellants in response to the Cross-Respondent’s brief filed a Reply Brief dated 7th November, 2016 and filed on the 8th November, 2016.

CROSS-APPELLANTS’ SUBMISSION
The Cross-Appellants reproduced the relief of N20Million damages as stated in their Counterclaim and contained in pages 22-27 of records. That relief is supported by the witness statement on oath of the 2nd Cross-Appellant (See 28-31 of records). The Cross-Respondent in reaction to the claim filed a defence without statement on oath as required by law (see pages 48-49 of records). The Cross-Appellants also gave

particulars of fraud committed by the Cross-Respondent as contained at pages 24 of record. Also the trial Court rightly observed that the business of the Cross-Appellants was indeed hijacked by the Cross-Respondent and therefore entitles the Cross-Appellants to general damages (see P.214 of records). The fraudulent act of the Cross-Respondent is demonstrated at trial are:
i. The Cross-Respondent tendered Exhibit C which on a closer look shows that there was no application for facility enhancement by N3Million.
ii. The title of Exhibit C is stated as: Re: Request for enhancement of N77.5m Balance of Overdraft facility by N3m to N80.5m but from pleadings of parties and evidence adduced there is no where the sum of N77.5m or N80.5 is featured.
iii. Exhibit C2 was equally tendered which is Authority to Collect C of O of the 1st Cross-Appellant’s property meanwhile the transaction that the 1st Cross-Appellant issued this letter had been unilaterally cancelled by the Cross-Respondent vide Exhibit 3 dated 10th October, 2008.
iv. Exhibit C3 was issued by the Cross-Respondent on 20/04/2009 in spite of the existence of Exhibit 3 dated 10th October, 2008.

The sole witness of the Cross-Respondent to the Court that she cannot recollect the total amount realized by the Cross-Respondent from transaction between Cross-Respondent and Cross-Appellants herein.
vi. The sum of N27,196,387.72k being claimed against the Cross-Appellants was based on bare assertion and no evidence was tendered to substantiate this claim.

The Cross-Appellants submits that the Cross-Respondent did not challenge the counter-claim of the Cross-Appellants but merely filed a defence without any statement on oath in support. Where there is no challenge to the evidence of Cross-Appellants the Court is bound to act on such unchallenged evidence as stated in the case OGUNYADE V. OSHUNKEYE (2007) ALL FWLR (PT. 389) S.C. 1179 and U.B.A PLC V. DAVIES (2011) ALL FWLR (PT. 576) 547. Also when the 2nd Cross-Appellant was leading evidence in support of the statement of defence, he was not cross examined by the Cross-Respondent’s counsel, it is trite law that where an adversary or his witness is not cross examined on a material fact in controversy, the Court can conclude that the version of the material fact put forth

by the adversary or his witness is not disputed. Citing AMADI V. NWOSU (1992) 5 NWLR (PT. 241) 273 and YAKUBU V. M.W.T.A.S (2005) ALL FWLR (PT. 267) 1388. The Cross-Respondent’s silence on that fact amounts to admission by conduct as stated in ZENON PETROLEUM & GAS LTD V. IDRISIYYA NIG. LTD (2006) ALL FWLR (PT. 312) 2121. Continuing, the Cross-Respondent breached the duty to exercise reasonable care and skill it owed the Cross-Appellants by hijacking the business of the customers and secretly sold 80 out of 100 trucks of cement at an undisclosed amount and the profit made thereunder. Under cross examination, the sole witness of the Cross-Respondent told the Court that she did not know the actual number of trucks sold by the Cross-Respondent and also does not know the total amount realized from the transaction by the Cross-Respondent. See the case of AGBANELO V. UNION BANK PLC (2000) FWLR (PT. 13) 2197.

The Cross-Appellants also submits that failure of the Cross-Respondent to challenge the evidence of the Cross-Appellants at trial entitled them to N20 Million damages against the Cross-Respondent for fraudulent management of account

and for hijacking the business of the Cross-Appellants and urge this Honourable Court to resolve this issue in favour of the Cross-Appellants. The total amount involved in the transaction between the parties was the sum of N79.8 Million which transaction was hijacked by the Cross-Respondent. The sum of N20 Million damages was never challenged but the trial Court for whatever reasons awarded the meager sum of N2Million damages in favour of the Cross-Appellants. Generally, an Appeal Court will not normally interfere with the award of damages by the trial Courts, but where the amount awarded is ridiculously low as in the instant case, the Court of Appeal will definitely interfere as stated in UNITED BANK FOR AFRICA PLC V. OGUNDOKUN (2010) ALL FWLR (PT. 504) C.A. 1521 and UNION BANK OF NIG PLC V. AJABULE (2012) ALL FWLR (PT. 611) SC 1413.

Finally, the Cross-Appellants urge the Court to interfere with the award of N2Million as damages granted by the trial Court in favour of the Cross-Appellants for these reasons: the Claim of the Cross-Appellants was never challenged and the witness of the Cross-Appellant was never cross examined. Also, since general damages

are always made as a claim, the quantum need not be pleaded and proved. The award is quantified by what in the opinion of reasonable person is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act or conduct of the Cross-Respondent as in the instant case. It does not depend upon calculation made and figure arrived at from specific items as stated in UNION BANK OF NIG PLC V. AJABULE (Supra).

CROSS-RESPONDENT’S SUBMISSION
ISSUE ONE
The Cross-Respondent submits that this appeal is on the award of the sum of N2 Million as against the sum of N20 Million being claimed of the Cross-Respondent. The Cross-Appellants must strive to succeed on the strength of its case and not the weakness of the Cross-Respondent’s case as stated in OMOYOLA V. ENTERPRISES BANK LTD (2013) ALL FWLR (PT. 698) 911 and ADESANYA V. OTUEWU (1993) 1 NWLR (PT. 270) 414. The Cross-Appellants made a heavy argument on the failure of the Cross-Respondent to cross examined the Cross-Appellants’ witness coupled with the fact that no witness statement on oath was filed in respect to the defence of the

counterclaim filed by the Cross-Respondent. Assuming without conceding that this fatal to the case of the Cross-Respondent, the scenario and composition of the Cross-Appellants’ case will not make the defence available to them.

The Cross-Respondent states that the case of the Cross-Appellant is routed on fraudulent hijacking of their business and mismanagement of their account which is criminal in nature and carries the onerous burden of proof beyond reasonable doubt. Citing NWOBODO-V-ONOH (1984) 1 SC P.1, OMOBORIOWO V AJASIN (1984) 1 SCNLR P.108 and PHARMATEK INDUSTRIAL PROJECTS LIMITED V TRADE BANK PLC & 4 ORS (2009) ALL FWLR (PT. 495) 1678, TUNDE ISIAQ & ORS V OKANLAWON SONIYI (2009) ALL FWLR (PT. 498) 347 and EYA V. OLOPADE (2011) ALL FWLR (PT. 584) 28. Continuing, the Cross Appellants did not discharge the burden of proof as required by them but the trial Judge still granted their claims and awarded the sum of N2 Million as damages for the alleged fraudulent retention of the 2nd Respondent’s title documents which is still been appealed against that it minimal compared to sum originally claimed by the claimed by the

Cross-Appellants. The principal reliefs upon which the claim for damages is based are declarations which are also not granted on admission by the party. See the case of NWAOGU V. ATUMA (2013) ALL FWLR (PT. 693) 1893 and GUNDIRI V. NYAKO (2013) ALL FWLR (PT. 698) 816. The Cross-Appellants did not discharge the burden of proof placed on them as per claims before the lower Court. See the case of OYENEYIN & ANOR V. AKINKUGBE & ANOR (2010) 1-2 SC 1, UBN V. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT. 421) 558; SOLANKE V. AJIBOLA (1969) 1 NWLR 45; ZIKS PRESS LTD V. ALVAN IKOKU (1951) 13 WACA 188; THOMPSON V. ADEFOPO (1961) 1 ANLR 322 and ACB LTD V. APUGO (2001) 2 SC 215.

The Cross-Respondent submits that the trial Judge did not satisfy himself that the Cross-Appellants suffered any injury to warrant the damages awarded. The trial Court based its decision on the available evidence adduced by the Cross-Appellants before the trial Court and which did not portray any injury inflicted on the Cross-Appellants (see page 253 of records). Continuing, the Cross-Respondent states that law on award of damages is that damages are awarded on sound principles of law and

not sentiments. The Cross-Appellants did not place the necessary material before the lower Court to warrant the grant of damages at all, let alone any sum above the sum of N2,000,000.00 (Two Million Naira). In the absence of such, the lower Court in the circumstance cannot embark on voyage of discovery for any party to a suit. See MAJA V. SAMOURIS (2002) VOL. 8 M.J.S.C 103 and UBN PLC V. CHIMAEZE (2014) 9 NWLR (PT. 1411) 166 AT 191.

Continuing, the Cross-Respondent states that the award of the N2Million in favour of the Cross Appellants is unmeritorious and not in consonance with the facts and evidence placed before the lower Court and urge this Honourable Court to dismiss the cross appeal filed to set aside the award of the sum of N2,000,000.00 as damages. The vital ingredients to enable the lower Court know whether the account of the Cross-Appellant was mismanaged is the statement of account which was available with the Cross-Appellants but they failed to tender same in support of their case. Also the case of the Cross-Appellants was largely built on Exhibit 5 which is a mere correspondence written by the Cross-Appellants to the Cross-Respondent

complaining about their dealings and nothing was tendered to substantiate the claims contained in the letter. The Cross-Appellants had the opportunity to present her statement of account as Exhibit 5 was readily written in respect of the Statement of account but failed to tender it (Page 46 of the records).

The Cross-Respondent states the Cross-Appellants had the Statement of account which could be the only way the trial Judge could have decided and reach a conclusion that the account of the Cross-Appellants with the Respondent was mismanaged but failed to provide same before the lower Court and the lower Court would not in the circumstance manufacture same help grant the sum of N20 Million in favour of the Cross-Appellants or any sum at all.

Furthermore, the Cross-Respondent contend that the argument of Cross-Appellants on breach of the duty of care was never canvassed before the lower Court and parties are not allowed to raise fresh issue on appeal except with the leave of this Honourable Court. It is trite that an Appellant is barred from raising fresh issue on appeal which was not canvassed at the Court below. Relying on OSENI V. BAJULU (2010)

ALL FWLR (PT. 511) 813 and CHIEF OGUNBADEJO V. OTUNBA A.L. OWOYEMI (1993) 1 NWLR (PT. 271) 517.

Finally, the Cross-Respondent urge this Honourable Court to dismiss this cross appeal as the Cross-Appellants did not present sufficient evidence to enable the lower Court grant the sum of N20 Million as damages or any sum at all.

CROSS-APPELLANTS’ REPLY BRIEF
The Cross-Appellants submits that the Cross-Respondent’s stated that “….The facilities were secured via an Authority to Collect (ATCS), the title document of the 2nd Cross-Appellant and a personal guarantee of the 2nd Cross-Appellant”. The 2nd Cross-Appellant never submitted the title documents of his property as security for the facility because the security submitted are (i) Lien on Authority to Collect (ATC) of the cement being financed by intercontinental and (ii) Personal guarantee of the Chairman/CEO of the company-Senator Lekan Balogun for the full facility amount and interest (Page 67 of the records). Also the Cross-Respondent argued that the claim of fraudulent acts is criminal in nature and requires proof beyond reasonable doubt. The Cross-Appellants states

that this kind of allegation only needs to be specifically pleaded and particulars of fraud given and this required of law was complied with by the Cross-Appellants (See Pages 24, 25 and 26 of records). Citing H.M.S LTD V. FIRST BANK (1991) 1 NWLR (PT. 167) S.C. 290. The Cross-Respondent never challenged the Counterclaim of Cross-Appellants as the Cross-Respondent only filed defence to counterclaim without statement on oath as required by the rules (Pages 48-49 of the records) and also the sole witness of the Cross-Appellants was never cross examined by the Cross-Respondent as contained in Page 170 of records.

Continuing, the Cross-Appellants’ claim for the sum of N20 Million damages was never challenge at trial, cross-Respondent cannot therefore challenge what they failed to challenge at trial Court before this Honourable Court as the position of the law is well settled to the effect that when there is no defence to a counter-claim by the Cross-Respondent there is no issues joined between the parties for determination. See the case of CHIGBU V. TONIMAS (NIG) LTD (1999) 3 NWLR (PT. 593) C.A. 115. Continuing, the Cross-Appellants states that facts

admitted need no further proof, see Section 123 of Evidence Act. The counterclaim the Cross-Respondent failed to challenge at trial Court cannot be subjected to challenge at the Appellate Court as held in AJIDE V. KELANI (1985) 2 NSCC (VOL. 16) 2098 AT 1316. The Cross-Respondent also argued that the Cross-Appellants did not prove their case for damages by evidence adduced at trial. Generally, the fact that damages awarded in favour of Cross-Appellants is in the realm of general damages as opposed to special damages that ought to be proved by the Claimant as stated in MAIDARA V. HALILU (2000) FWLR (PT. 19) 433 and INCAR MOTORS V. BENSON (1975) 3 S.C. 117.

The Cross-Appellants contends that the Cross-Respondent further argued that the issue of breach of duty of care was never canvassed at trial but the Cross-Appellants states the allegation of breach of duty of care by the Cross-Respondent was equally addressed at pages 123-124 of record. Citing AGBANELO V. UNION BANK PLC (2000) FWLR (PT. 13) 2179 AT 2213.

The Cross-Appellants urge this Honourable Court to allow the cross appeal as the Cross-Respondent did not challenge same either by its pleading or

evidence adduced at trial and this accounted for why the statement of account of the Cross-Appellants were deliberately withheld by the Cross-Respondent at trial and Cross-Respondents counsel deliberately refused to cross examine the Cross-Appellants sole witness at trial.

RESOLUTION
The real issue in the Cross Appeal borders on the award of general damages. General damages is defined in CAMEROUN AIRLINES V OTUTUIZU (2011) LPELR- 827(SC) thus:
“General damages are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. See UBN Ltd. v. Odusote Bookstores Ltd. 1995 9 NWLR pt. 421 p. 558. General damages is awarded by the trial Court to assuage a loss caused by an act of the adversary.” Per RHODES-VIVOUR, J.S.C
I am aware that it is settled law too, that unlike special damages which is special in nature and must be pleaded specially and proved strictly, the quantum of general damages need not be pleaded or proved. The manner in which general damages is quantified is by relying on what a reasonable man judgment would be in the circumstance. See ENEH V OZOR & ANOR (2016)

LPELR-40830(SC). The claim was for N20 Million but the Judge awarded N2 Million Naira as general damages, generally, damages awarded by a trial Judge is an exercise of discretion which the Appellate Court ordinarily, is reluctant to interfere with except under certain circumstances. See AGU V GENERAL OIL LTD (2015) LPELR- 24613(SC) which held thus:
“It is settled law that where damages have been awarded by a trial Court, an alteration of the award will be made by an appellate Court only where it is shown that the award is either manifestly too low or too high or was made on wrong principles – See the case of U.B.A. v. Achoru (1990) 6 NWLR (Pt. 156) 254: Ijebu-Ode Local Govt. v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136: Onaga v. Micho & Co. (1961) 2 NSCC 189 at 192.” Per ONNOGHEN, J.S.C.
General damages is not awarded because there was no challenge to the sum claimed, it follows events and amount awarded is at the discretion of the Court, see UBN V AJABULE & ANOR (2011) LPELR-8239 (SC) where the apex Court restated the principle under which the Appellate Court would interfere with award of general damages thus:

“The law is trite that where general damages are claimed, if the issue of liability is established as in the present case, the trial Judge is entitled to make his own assessment of the quantum of such general damages and, on appeal, such general damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely wrong principle of law as to make it, in the judgment of the appellate Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. See the cases of Zik Press Limited v. Ikoku (1951) 13 WACA 188; Idahosa v. Orosanye (1959) 4 F.S.C. 166; Bola v. Bankole (1986) 3 NWLR (pt. 27) 141 and Ijebu-Ode Local Government v. Balogun and Company Limited (1991) 1 N.W.L.R. (pt. 166) 136.”
The Argument of the Cross Appellant is flawed because it is applicable to a claim in special damages and not general damages that only the trial Judge determines the quantum and that is why the Appellate Court cannot interfere without any of the conditions settled are established. None of the conditions was made out by the Cross Appellant and the claim was not for special

damages but general damages. It is therefore not possible for the Court to now interfere, the fact that the amount claimed was not challenged does not mean it must be granted, the award was at the discretion of the trial Court. I resolve the sole issue against the Cross Appellant.

In the light of above, the Cross Appeal fails and is hereby dismissed. The award of N2 Million Naira made by the trial Judge is affirmed.
I make no order as to cost.

PETER OLABISI IGE, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I agree.

Appearances:

TAIRU ADEBAYO For Appellant(s)

WAHEED GBADAMOSI For Respondent(s)