HAYFAN VENTURES LTD & ORS v. UNITY BANK PLC & ORS (2022)

HAYFAN VENTURES LTD & ORS v. UNITY BANK PLC & ORS

(2022)LCN/16795(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, June 30, 2022

CA/KN/349/2017

Before Our Lordships:

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

1. HAYFAN VENTURES LIMITED 2. ABBA SHEHU MADAKI 3. MANSUR A. KURAWA 4. YAHAYA MANSUR 5. ABDULMALIK YAKUBU 6. HAFSAT KURAWA 7. MARYAM ADAMU APPELANT(S)

And

1. UNITY BANK PLC 2. BELLO MAGAJI 3. COMMISSIONER OF POLICE CROSS-RIVER STATE COMMAND RESPONDENT(S)

RATIO

WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS BEFORE THE COURT

The law is well settled that parties are bound by their pleadings and any evidence that is not raised by parties in the pleadings or anchored on it goes to no issue and so must be discountenanced by the Court. That position of the law applies with equal force to evidence extracted during cross-examination: see Edward Okwejiminor v. G. Gbakeji & Anor (2008) LPELR-2537 (SC) p. 19, 36, 58; (2008) 5 NWLR (PT 1079) 172; (2008) ALL FWLR (PT 408) 405; Isheno v. Julius Berger (Nig.) Plc (2008) ALL FWLR (PT 415) 1632 AT 1647-1648 and p. 1653, Woluchem & Ors v. Gudi & Ors (1981) NSCC 214 AT 290; Adejumo v. Ayantegbe (1989) LPELR-100 (SC) p. 17-18, 26, 44, 56, and Ogunmakinde v. Akinsola (2002) FWLR (PT 105) 781 AT 798, B-F. PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal from the 9th day of March, 2017 decision of the Kano Judicial Division of the Federal High Court in Suit No FHC/KN/CS/94/2013 throws up only issue even as appellants have striven to formulate three issues around that single issue. That issue is whether appellants did prove before the Federal High Court that they remitted the sum of N151,741,128.89k to 1st respondent and the trial Judge was wrong in failing to subtract that amount from the N178,000,000.00k claimed by 1st respondent as their total indebtedness to it. Their complaint is that had the trial Judge subtracted the said N151,741,128.89k, which they claim was admitted by 1st respondent’s only witness, P.W.1, during cross-examination, their indebtedness to 1st respondent would have been only N26,258,871.11k (Twenty Six Million Two Hundred and Fifty-Eight Thousand, Eight Hundred and Seventy One Naira Eleven Kobo) and not the N178,209,710.38 judgment debt he entered against them so the lower Court’s judgment is perverse and deserving of our intervention.

The simple background facts of the case are that appellants obtained from 1st respondent a term loan of N73,000,000.00 to enable 1st appellant execute a contract awarded her by 3rd respondent for the supply of motorcycles to 3rd respondent, which contract, appellants as well as 2nd and 3rd respondents guaranteed that loan. The arrangement for repayment of the loan was that 3rd respondent who was 9th Defendant at the lower Court and also gave a corporate guarantee of the sum loan to the tune of N95,000,000.00 was to ensure that the monies of the said motorcycles are deducted and paid to 1st respondent through an Irrevocable Standing Payment Order (I.S.P.O) from United Bank of Africa Plc (UBA Plc). Along the line, some of the motorcycles that the loan was used to purchase got damaged, so 3rd respondent, appellants had to sell them and subsequently credited the proceeds of the sale, amounting to N51,874,275.00k to its account with 1st respondent.

According to 1st respondent, appellants and 2nd and 3rd respondents defaulted on the terms and conditions of the loan agreement after utilizing it, with the result that the sums of (N178,209,710.38, N75,000,000.00 and N495,000,000.00 became outstanding and due for payment against them and 2nd and 3rd respondents respectively.

After repeated demands for payment, 1st respondent finally commenced an action against appellants and 2nd and 3rd respondents in the Federal High Court, claiming against them:
(1) As against 1st and 3rd defendants (a)The sum of N178,209,710.38 being the principal amount plus interest as at 30th October 2013 and (b) 25.5% interest on the said loans from 1st November 2013 until judgment;
(2) As against 2nd, 4th-8th Defendants, the sum of N75,000,000.00 being the amount the 2nd, 4th-8th Defendants guaranteed the 1st defendant and,
(3) As against 9th Defendant, the sum of N95,000,000.00 being the amount the 9th Defendant guaranteed the 1st defendant.

Appellants admitted their individual guarantees of the said loan but contended in their joint statement of defence contained at pages 475-480 of the records of appeal that:
1. First respondent loaded their account with ‘bogus and spurious interests’ which were not agreed when the loan was granted, and
2. That they had at different times made remittances totaling N51,875, 275.00k to 1st respondent.

After taking evidence from witnesses to parties and addresses by counsel, the Court found for 1st respondent and entered judgment against all the defendants: in the case of appellants as claimed from them by 1st respondent, but as against 3rd respondent, only for the sum of N57,525,725.00 having adjudged same as the sum outstanding from him to 1st respondent from the N95,000,000.00 he guaranteed.

Aggrieved by that judgment, appellants have lodged the instant appeal of four grounds against it to this Court on 23/3/2017 and distilled the following three issues for this Court to determine:
1. Whether the lower Court was right in law and on the facts by being silent in its judgment on the amount of N151,741,128.89k remitted and/or credited to the account of the 1st appellant with the 1st respondent, being part of the repayment of the indebtedness of the appellants to the 1st respondent.
2. Whether the lower Court properly evaluated the evidence adduced in this case, especially the uncontroverted, unchallenged and/or un-rebutted evidence of P.W.1.
3. Whether the trial Court was right to have entered judgment in the sum of N178,000,000,00 against 1st to 3rd appellants without considering the amount paid by the 1st appellant as part of the appellants’ indebtedness to 1st respondent.

Their sole complaint in all three issues, as already indicated, is (1) that it was proved before the trial Court that they remitted the sum of N151,741,128.89k (One Hundred and Fifty-One Million Seven Hundred and Forty-One Thousand One Hundred and Twenty Eight Naira Eighty Nine Kobo) in addition to the N57,525,725.00 admitted by 1st respondent to have been offset by them; (2) that the trial Judge failed to subtract the said N151,741,128.89k from the total debt of N178,000,000.00k claimed by 1st respondent from them in its action; and (3) that had the trial Judge subtracted that ‘proven’ additional N151,741,128.89k, their indebtedness to 1st respondent would have been only N26,258,871.11k (Twenty Six Million Two Hundred and Fifty-Eight Thousand, Eight Hundred and Seventy One Naira Eleven Kobo) and not the N178,209,710.38 it entered against them so its judgment was perverse for that reason. Appellants founded the whole of that argument on the answer their counsel extracted from Plaintiff/1st Respondent’s sole witness, Rebecca Bulus, during cross-examination (as shown at pages 674-675) where the said witness (P.W.1) was asked by their counsel and she responded as shown below:
Q: Did the 1st Defendant abandon the Account completely or some remittances were made into the account by UBA?
A: No, it was not completely abandoned.
Q: From Exhibit PK1 can you tell the Court how much was remitted to the account of the 1st defendant since the facility was granted?
A: N151,741,128.89 (One Hundred and Fifty-One Million Seven Hundred and Forty-One Thousand One Hundred and Twenty Eight Naira Eighty Nine Kobo).

The argument made on their behalf by their counsel Dapo Ajagbe, Esq., who also settled their statement of defence in the lower Court, represented them there and also extracted the said answers from P.W. 1, is that by the said answer, 1st respondent admitted that they also remitted or paid back to it a further sum of N151,741,128.89 so that payment was proved as a fact and since facts admitted need no further proof (in support of which he cited Section 21 of the Evidence Act and a plethora of cases), the lower Court was bound to take account of it and subtract it from appellants’ indebtedness to 1st respondent.

Mr. N.A. Dangiri, S.A.N. for first respondent was against that argument and it is quite easy for me to see with him. In the first place, parties exchanged pleadings in the case and defined the issues in dispute between them. Nowhere in their joint statement of defence contained at p. 475-480 of the records did appellants ever aver to refunding or remitting N151,741,128.89 and so bringing their indebtedness to 1st respondent to only N26,258,871.11k (Twenty Six Million Two Hundred and Fifty-Eight Thousand, Eight Hundred and Seventy One Naira Eleven Kobo) as they now blame the lower Court for failing to hold and wants this Court to hold in their favour. On the contrary, in paragraph 12 of their same statement of defence, they averred that the entire amount they remitted to 1st respondent to offset their loan on twenty-two different occasions was the total sum of N51,874,275.00k, when they averred thus:
12. The 1st, 2nd, 3rd, 4th, 5th, 6th and 8th Defendants will adduce evidence at the trial of this case to say that the following remittances were made at various times in the account of the 1st defendant with the Plaintiff but same did not reflect in the Plaintiff’s calculation and/or claim:
(They then went on to set out 22 payments and the dates of their payment and proceeded on the issue thus:)
“GROUND (sic: grand) TOTAL…………..N51,874,275.00k.”

The law is well settled that parties are bound by their pleadings and any evidence that is not raised by parties in the pleadings or anchored on it goes to no issue and so must be discountenanced by the Court. That position of the law applies with equal force to evidence extracted during cross-examination: see Edward Okwejiminor v. G. Gbakeji & Anor (2008) LPELR-2537 (SC) p. 19, 36, 58; (2008) 5 NWLR (PT 1079) 172; (2008) ALL FWLR (PT 408) 405; Isheno v. Julius Berger (Nig.) Plc (2008) ALL FWLR (PT 415) 1632 @ 1647-1648 and p. 1653, Woluchem & Ors v. Gudi & Ors (1981) NSCC 214 @ 290; Adejumo v. Ayantegbe (1989) LPELR-100 (SC) p. 17-18, 26, 44, 56, and Ogunmakinde v. Akinsola (2002) FWLR (PT 105) 781 @ 798, B-F. Remittance of N151,741,128.89 by appellants to 1st respondent not being part of appellants’ defence to 1st respondent’s case, the said evidence of P.W.1 even assuming, without conceding that it bears the interpretation given it by them, goes to no issue. At any rate, the said evidence of P.W.1 relied on by appellants, besides its inadmissibility, does not even support the interpretation given it by Mr. Ajagbe for appellants. The said answer of P.W.1, it must be noted, was to the effect that N151,741,128.89k was remitted to the account of the 1st defendant. First defendant in the case was not Unity Bank Plc but Hayfan Ventures Limited – the same first appellant here – so if 2nd to 7th appellants remitted monies to their co-debtor which was not shown to have been forwarded to 1st respondent, they cannot claim them as monies refunded to 1st respondent by them.

The long and short of all the foregoing analysis is that, all three issues of appellants, which are in reality only one, are resolved against them and their appeal is hereby dismissed while the decision of the lower Court is affirmed.

Cost of the appeal is assessed at N100,000.00 (One Hundred Thousand Naira) against appellants and in favour of 1st respondent.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother Boloukuromo Moses Ugo, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA. I am in agreement with the reasoning and conclusion reached by him in this appeal.

For the reasons ably given by him, I also dismiss the appeal and affirm the decision of the Court below.