FIN BANK (NIG.) PLC. V. ADEBAYO ISSA OLAWALE
(2012)LCN/5636(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of November, 2012
CA/IL/7/2012
RATIO
WORDS AND PHRASES: MEANING OF AN ADMISSION
Admission in the sense in which it is used here is defined by the Oxford Advanced Learner’s Dictionary, 8th Edition as, a statement in which somebody admits that something is true, especially something wrong or bad that they have done. Black’s Law Dictionary, 6th Edition defines admission at page 47 as a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. PER PAUL ADAMU GALINJE JCA
EVIDENCE: EFFECT OF ADMITTED FACTS
Section 75 of the Evidence Act 1990, which is now section 123 of the Evidence Act 2011 provides as follows:-
“No fact need be proved in any civil proceedings which the parties thereto or their agent agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.
Provided that the court may in its discretion requires the fact admitted to be proved otherwise than by such admission.”
Order 27 Rule 14(3) of the Kwara State (Civil Procedure) Rules 2005 provides as follows:-
“Where admission of facts are made by a party either by his pleading or otherwise any other party may apply to court for such judgment or order as upon those admissions he may be entitled to without waiting for the determination of any other question between the parties, and the court may give such judgment or make such order as it think fit.”
In UBA & Anor vs. Alhaji Babagida Jargaba (2007) 11 NWLR (Pt. 1045) 243, (2007) 31 NSCQLR 145 @ 166. The Supreme Court said:-
“When admissions are made they are considered relevant, Section 75 of the Evidence Act provides that no fact need to be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have been admitted by their pleadings.” PER PAUL ADAMU GALINJE JCA
APPEAL: WHETHER APPEAL COURTS HAVE JURISDICTION OVER A DECISION AGAINST WHICH THERE IS NO APPEAL
An appellate court is only concerned with matters that are properly placed before it. It has no jurisdiction over a decision against which there is no appeal to it. In Abdulkareem vs. Incar Nigeria Ltd. (1984) 15 NSCC 603 @ 617 paragraph 5, the Supreme Court, per Eso JSC had this to say:-
“One would, have expected that the learned justice of the Appeal Court having ordered that the trial court could not deal with a matter not before it would not fall into the same error. But so he did. The matter was not before the Court of Appeal and that court has no jurisdiction to deal with a matter not placed before it. A court of law is only concerned with the lis before it. It is not an all purpose dispute setting tribunal. It is true Ubi Juris Ibi Remedium yet the court guided by law and the constitution and also rules should never interfere except parties bring their complaint to it.”
In Sodeinole vs. Registered Trustees Ahmadiyya Movement in Islam (1982) 2 SCNLR 284 @ 326, Sowemimo (JSC as he then was) put the matter beyond per adventure when he said:-
“It is not for this court to embark on an investigation to which it has not been called. It is the duties of the parties to put their facts before the court in order for a judicial decision to be pronounced both on the facts and the law involved.” PER PAUL ADAMU GALINJE JCA
EVIDENCE: EFFECT OF A DOCUMENT SIGNED OR MARKED ON BY A PARTY
The law is trite that:
“There is the general presumption that once a person signs a document or places his mark on it, he owns up the content of what he signed or placed his mark upon. That is the purport of Section 75 of the Evidence Act, which says:
“No fact need be proved in any civil proceedings which the parties there to or their agents agree to admit at the hearing or, which before the hearing they agree to admit by any writing under their hand, or which by any rule or pleading in force at the time, they are deemed to have admitted by their pleadings.” See the case of Prince Hassan Oyedele & Anor. vs. Baale Sidiku Bamigboye Jimoh, an unreported decision of this Court in CA/IL/97/2010 delivered on 17/5/2012 (page 24 thereof):
In Adefarasin vs. Dayekh (2007) ALL FWLR (Pt.348) 911, it was held:
“A person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such person holds himself out as bound or responsible for the contents of such a document.”
In the case of Salam & Anor vs. Yusuf & 2 Ors. (2007) 5 S.C. the Supreme Court, per Tobi JSC held:
“A Court of law is entitled to give judgment based on admission by a party, if the admission is relevant to the facts in issue. See Salamatu vs. Biba (1975) NNLR 176. In civil cases, admission by a party is evidence of the facts asserted against him. Unless explanations are given which satisfy the Court that admission should not be so regarded, due positive weight should be given to them as such” PER ITA G. MBABA, J.C.A.
EVIDENCE: WHAT IS THE BEST EVIDENCE IN CIVIL PROCEEDINGS
In the realm of civil proceedings, which this matter happens to fall within, admission, made in a documentary form, as in exhibit 2, is the best and most dependable evidence, see Agbareh vs. Mimra (2008) 2 NWLR (Pt.1071) 378; Omiyale vs. Macaulay (2009) 7 NWLR (Pt.1141) 597; Anyanwu vs. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445. PER OBANDE OGBUINYA, J.C.A.
JUSTICES
PAUL ADAMU GALINJE (PJ) Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE O.F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
FIN BANK (NIG.) PLC. – Appellant(s)
AND
ADEBAYO ISSA OLAWALE – Respondent(s)
dence Act 2011. In a further argument, learned counsel submitted that the total amount allegedly withdrawn on exhibit 2 upon which the applicant placed heavy reliance is N97,000,000.00 and not N79,000,000.00 as claimed by the Appellant. Not only that, the total amount on exhibit 2 was allegedly withdrawn from one account, i.e. Bitto Nig Ltd and this evidence is at variance with paragraphs 4 and 5 of the statement of claim where it was pleaded in unequivocal terms that the sum accumulated from March 2008 to 9th March 2009 from various accounts.
Learned counsel insists that the N79,000,000.00 pleaded is not in harmony with exhibit 2 and so also are paragraphs 4 and 5 of the statement of claim. Still in argument, learned counsel urged the court to hold that the Appellant did not place any credible evidence before the lower court to warrant a judgment in its favour as such the learned trial judge’s decision to dismiss the case on the basis of irreconcilable and inconsistent evidence is in tandem with the position of law as enunciated in several decision of the Apex
Court. In aid learned counsel cited Osuji vs. Ekocha (2009) 7 MJSC 74 @ 137 paragraphs F-G; Ezemba vs. Ibeneme (2004) 7 SCNJ 135 @ 153 – 154 lines 40 – 45.
Finally learned counsel urged this court to dismiss the appeal and affirm the decision of the lower court. Both the Appellant and the Respondent relied heavily on exhibit 2 in their respective submissions. For clarity this exhibit is hereunder reproduced as follows:-
“30th April 2009
The Senior Business
Fin Bank Plc.
120, Abdulaziz Attah Branch,
Ilorin.
Dear Sir,
UNAUTHORIZED WITHDRAWAL FROM BITTO’S ACCOUNT
In March last year I liquidated and withdrew the sum of Fifteen Million Naira (N15,000,000.00) from Bitto’s BA Account. I gave the sum of Fourteen Million Naira (N14,000,000.00) to Abdulfatai Kareem for onward delivery to Alh. Ibrahim Tunde Abubakar Bida as loan. We agreed on the monthly payment of One Million Eight Hundred Thousand Naira (N1,800,000.00) as interest on the loan. He paid the sum of One Million Eight hundred thousand naira (N1,800,000.00) twice and the sum of One Million six hundred thousand Naira (N1,600,000.00) twice. I collected the sum of Nine hundred thousand naira (N900,000.00) each time the interest is paid claiming that the money is for the account owner. The sum of Nine hundred thousand Naira (N900,000.00) was later given to me twice to settle the account owner but none was given to the account owner. The remaining balance of One Million Naira (N1,000,000.00) on Fifteen Million Naira (N15,000,000.00) is with me while the balance on the interest taken was shared between me and Alhaji Fatai Kareem.
On 9th March this year, I liquidated the sum of Twenty-Five Million Naira (N25,000,000.00) and Fifteen Million Naira (N15,000,000.00) respectively from the same account and caused draft of Thirty-Eight Five hundred Naira (N38,500,000.00) to be issued in favour of BAFAS NIGERIA LIMITED, an account introduced by Alh. Fatai Kareem, with the balance of the One Million Five Hundred thousand Naira (N1,500,000.00) left in Bitto’s current account. This was as a result of the advice by Alh. Fatai Kareem that we should do business that will bring back the fourteen Million Naira (N14,000,000.00) granted to Alh. Tunde Bida so that we can pay the money back into the account where we took the money from. At a point, some people who paraded themselves as journalist came to Alhaji Fatai Kareem that they have the information that some money was deposited into an account and later transferred to his own account in Oceanic bank and that if he does not give them money that will blow the whole story in paper. The two guys later came to me in the office and explained everything to me that they have gone to Fatai for same thing. So myself and Fatai agreed to settle them so that they won’t blow the whole story. We first gave the sum of Five hundred thousand Naira (N500,000.00) and when they came later we gave them another One Million Naira (N1,000,000.00).
Sometimes, in October, last year the sum of Twenty-Four Million Naira (N24,000,000.00) which was given to Al-Hikmah University Stakeholder’s forum account by the account owner (Bito Nigeria Limited) was returned by the University after utilization. The fund was diverted as follows:-
The sum of Twenty Million Naira (N20,000,000.00) was given to Mr. Olaniyan at an agreed interest of Three hundred and Eighty thousand Naira (N380,000.00) for two weeks. I later collected the sum of Five Million Naira (N5,000,000.00), One Million, Fifty-five thousand Naira (N1,55,000.00), One Million, Four hundred thousand Naira (N1,400,000.00) respectively from the Twenty Million Naira (N20,000,000.00), out of the remaining Four Million Naira (N4,000,000.00) the sum of Two Million Naira (N2,000,000.00) was given to Alh. Fatai Kareem when he claimed that he had a business to do that will fetch him money.”
ADEBAYO ISSA OLAWALE
In his judgment at page 241 of the record of appeal, the learned trial judge held as follows:-
“On Exhibit 2, I am of the respectful view that the defendant having alleged that it was forged or concocted by the claimant, the onus is on him to prove the allegation of forgery. From the evidence before me, the allegation of forgery was not proved beyond reasonable doubt as required in law. I am satisfied from the totality of the evidence adduced by the claimant that the defendant made exhibit 2.”
Even though the learned trial judge accepted in his judgment that exhibit 2 was made by the Respondent, he nonetheless held that the exhibit did not amount to admission of liability by the Respondent of being indebted to the Appellant in the sum of N24,840,000.00 or any sum at all. Is the learned trial judge right to have concluded that exhibit 2 is not an admission of liability? Admission in the sense in which it is used here is defined by the Oxford Advanced Learner’s Dictionary, 8th Edition as, a statement in which somebody admits that something is true, especially something wrong or bad that they have done. Black’s Law Dictionary, 6th Edition defines admission at page 47 as a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action.
Now from the contents of exhibit 2, the Respondent has admitted making withdrawals from Bito’s account of the following sums N15,000,000.00, N25,000,000.00, N15,000,000.00, N24,000,000.00. The total sum admitted withdrawn by the Respondent as reflected above is N79,000,000.00. The Respondent clearly stated in Exhibit 2 that he liquidated the sums stated herein above without the consent of the owners of the account and went on to explain how the money withdrawn was disbursed. Clearly the Exhibit aforesaid is an admission of wrongful liquidation of a customer’s account and the lower court’s conclusion that same was made by the Respondent has not been challenged in this appeal. It is therefore a statement made by the Respondent.
Having admitted withdrawing the various sums enumerated in Exhibit 2 which were kept in the custody of the Appellant, was the latter bound to go through the rigors of proving its claim in order to be entitled to judgment? In order to answer this question, it is pertinent to take a look at the law governing admission by a party to a suit.
Section 75 of the Evidence Act 1990, which is now section 123 of the Evidence Act 2011 provides as follows:-
“No fact need be proved in any civil proceedings which the parties thereto or their agent agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.
Provided that the court may in its discretion requires the fact admitted to be proved otherwise than by such admission.”
Order 27 Rule 14(3) of the Kwara State (Civil Procedure) Rules 2005 provides as follows:-
“Where admission of facts are made by a party either by his pleading or otherwise any other party may apply to court for such judgment or order as upon those admissions he may be entitled to without waiting for the determination of any other question between the parties, and the court may give such judgment or make such order as it think fit.”
In UBA & Anor vs. Alhaji Babagida Jargaba (2007) 11 NWLR (Pt. 1045) 243, (2007) 31 NSCQLR 145 @ 166. The Supreme Court said:-
“When admissions are made they are considered relevant, Section 75 of the Evidence Act provides that no fact need to be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have been admitted by their pleadings.”
A thorough examination of Exhibit 2 will clearly reveal that the Respondent made admission against his interest when he admitted withdrawing certain sums from a customer’s account without the authority and consent of the owner of the account. This the learned trial judge admitted when he ruled that Exhibit 2 was made by the Respondent. Admissions of this nature are not estoppels and are not conclusive against a party against whom they are tendered. The party has a right to explain and show that the admissions were due to misconception or ignorance of the real facts or other circumstances which sufficiently explains them. See Nigerian Bank for Commerce & Industry vs. Integrated Gas (Nig.) Ltd. & Anor (2005) 21 NSVQLR 241 @ 262.
The Respondent neither explained the circumstances under which he made the statement, nor did he own up to the statement. It is the finding of the court that has not been challenged that ascribed exhibit 2 to the Respondent.
The learned trial judge at page 241 of the record held thus:-
“However, I must add that I did not see in Exhibit 2 admission by the defendant of being indebted to the claimant in the sum of N24,840,000.00 (Twenty Four Million, Eight Hundred and Forty Thousand Naira) or any sum at all.”
The learned trial judge’s failure to see in Exhibit 2 any admission by the Respondent is hinged on the fact that the claimant did not adduce evidence to show that Exhibit 2 is either a confession or admission of any of the reliefs it was seeking from the Respondent. This finding is strange and it does not agree with the amended statement of claim at pages 109- 111 of the statement of claim. Paragraph 17 of the amended statement of claim reads thus:-
“That as a result of this arrest a total sum of N55,160,000.00 was recovered, leaving a balance of N24,840,000.00 the bank statement on the recovery is hereby pleaded.”
It is the balance that is reflected in the paragraph reproduced above that the Appellant’ claimed. Since the admitted unauthorized withdrawal of the sum of N79,000,000.00, it is his responsibility to deny or admit how much has been recovered from the total withdrawal. The Respondent has failed to do that.
He is therefore deemed to have admitted that the sum of N55,160,000.00 was recovered from him leaving a balance of N24,840,000.00. The learned trial judge was therefore wrong when he held that he did not see in Exhibit 2 an admission by the Respondent of being indebted to the Appellant. Exhibit 2 speaks for itself. It does not require any other evidence apart from the fact that it was successfully admitted in evidence and rightly ascribed to the Respondent as the maker.
There is no evidence that Exhibit 2 was made under duress or inducement, as such it was freely made by the Respondent. It is therefore an admission of the first relief claimed by the Appellant.
The ruling of the learned trial judge on the application to tender eight documents by the Appellant is at pages 195 – 197 of the record of this appeal. The eight documents sought to be tendered in evidence were rejected by the learned trial judge in his ruling in the following words:-
“On the whole and in view of the foregoing I found merit in the objection of the learned counsel for the defendant. The claimant’s application to tender in evidence the above listed eight documents fails. All the documents are hereby rejected.”
One of the documents rejected is an Oceanic Bank draft No 01355281 in the sum of Thirty three Million, Five Hundred Thousand Naira (N33,500,000.00) which is listed as number seven in the rejected list. However, in his judgment at page 242 of the record the learned trial judge held:-
“Now if the value of the bank draft is added to the sum of N55,160,000.00 (Fifty Five Million, One Hundred and Sixty Thousand Naira) admitted to have been recovered from the defendant in paragraph 17 of the statement of claim plus N24,840,000.00 (Twenty Four Thousand, Eight Hundred and Forty Thousand naira) the claimant in claiming in this action, the total money will be N113,500,000.00 (One Hundred and Thirteen Million, Five Hundred Thousand Naira) above the unauthorized sum of N79,000,000.00 (Seventy Nine Million Naira) the defendant was alleged to have withdrew (sic) from customers accounts.”
I agree with the learned counsel for the Appellant that the sum of N33,500,000.00 mentioned in the passage reproduced above was not in evidence before the trial court. The said amount was reflected on the Oceanic Bank draft No. 01355281 which was rejected when it was tendered in evidence. Having rejected the Bank draft, the learned trial judge was in error to have relied on the same document in his judgment. This error influenced the learned trial judge decision which I am of the firm view was reached at variance with the evidence before him.
Having admitted that he made unauthorized withdrawal from a customer’s account, it is only right for the Respondent to return whatever balance that has not been recovered. The issue of criminal element in the case having been proved beyond reasonable doubt belongs to the realm of criminal prosecution.
Even at that when the Respondent clearly admitted that he illegally withdrew the money being claimed, proof of fraud becomes unnecessary. In Davey vs Garreh (1878) 7 ch. D, 473 @ 489, it was held that fraud must be distinctly alleged with all necessary particulars and distinctly proved where the document is challenged by the adverse party. Where there is admission therefore, the burden of proof is obviated.
Mr. David O. Ogunyemi, learned counsel for the Appellant submitted that a financial institution is entitled to interest and award of damages. According to the learned counsel, the learned trial judge knew that the said sum of Seventy Nine Million Naira (N79,000,000.00) was placed in the bank with an intention to make interest and that the Exhibit 1 is to that effect as such the learned trial judge was in error when he refused the 25% claimed for the defendant.
In his judgment, the learned trial judge held at page 236 of the record as follows:-
“Having failed to plead and lead necessary facts on 25% interest rate and properties of the defendant to be auctioned, the conclusion I have drawn is that the claimant is not desirous of reliefs (ii) and (iv) to be awarded to him because no court will grant to a party reliefs sought but which are bereft of pleading and evidence.”
There is no appeal against his refusal to award reliefs (ii) and (iv) which are claims for 25% interest and declaration of right of the Appellant to offer for sale by auction the properties of the Respondent respectively. I have perused all the grounds of appeal, there is none that attack this part of the judgment.
An appellate court is only concerned with matters that are properly placed before it. It has no jurisdiction over a decision against which there is no appeal to it. In Abdulkareem vs. Incar Nigeria Ltd. (1984) 15 NSCC 603 @ 617 paragraph 5, the Supreme Court, per Eso JSC had this to say:-
“One would, have expected that the learned justice of the Appeal Court having ordered that the trial court could not deal with a matter not before it would not fall into the same error. But so he did. The matter was not before the Court of Appeal and that court has no jurisdiction to deal with a matter not placed before it. A court of law is only concerned with the lis before it. It is not an all purpose dispute setting tribunal. It is true Ubi Juris Ibi Remedium yet the court guided by law and the constitution and also rules should never interfere except parties bring their complaint to it.”
In Sodeinole vs. Registered Trustees Ahmadiyya Movement in Islam (1982) 2 SCNLR 284 @ 326, Sowemimo (JSC as he then was) put the matter beyond per adventure when he said:-
“It is not for this court to embark on an investigation to which it has not been called. It is the duties of the parties to put their facts before the court in order for a judicial decision to be pronounced both on the facts and the law involved.”
However interest is awarded on judgment sum only if the claimant is successful. Since I have arrived at a conclusion that the learned trial judge was wrong in dismissing the claim of the Appellant, I should as well be in a position to award interest on the judgment sum where such interest had been proved. I do agree that financial institutions are entitled to interest and award of damages as proposed by learned counsel for the Appellant. However such interest must be proved. It is in the practice of all licensed commercial banks to charge interest on advances, loans, credit facilities or paid on deposits subject to stated minimum and maximum rates as approved for all banks by the Central Bank guidelines. This rate of interest varies from time to time and by section 23 of the Banks and other financial institutions Act, 2004, every bank shall display at its offices its lending and deposit interest rates as may be specified from time to time. For the Appellant to succeed on its claim for interest, evidence must be given of the prevailing rate of interest as approved by the Central bank at the time the Respondent withdrew the money. The only witness called by the appellant in the instant case did not give evidence on the interest chargeable by the Appellant. For the reason of the failure to appeal against the refusal to award the judgment interest and there being no evidence on the claim for interest I will refrain from awarding interest to the appellant.
On the whole, the sole issue for determination of this appeal as identified by me is resolved in favour of the Appellant and against the Respondent.
For this reason this appeal is allowed. The judgment of the lower court is set aside and in its place, the Appellant’s first claim at the lower court of the sum of N24,840,000.00 being the balance of the N79,000,000.00 plus the N1,000,000.00 which was unlawfully liquidated from customer’s account and amount received form Remi Augustina by the Respondent on behalf of the Appellant respectively is granted. The Appellant is entitled to the cost of prosecuting this appeal which I assess at N30,000.00 against the Respondent.
ITA G. MBABA, J.C.A.: I have been privileged to read, in advance, the judgment just delivered by my learned brother PAUL A. GALINJE JCA (PJ). I agree completely with his reasoning and conclusion, that the appeal is meritorious.
Having written Exhibit 2 on 30/4/2009 to make for reaching admissions as follows:
“In March last year I (Respondent) liquidated and withdrew the sum of fifteen Million Naira (N15,000,000.00) from Bito’s BA account… (and) on 9th March this year, I liquidated the sum of Twenty-Five Million Naira (N25,000,000.00) and Fifteen Million Naira (N15,000,000.00) respectively from the same account… Sometime in October, last year, the sum of Twenty-four Million Naira (N24,000,000.00) which was given to Al-Hikmah University Stakeholder’s forum account by the account owner (Bito Nigeria Limited) was returned by the University after utilization. The funds were diverted…”
And having given detail information, in the letter, how the said funds were applied or used without the consent of the owner of the account, to service business deals of the Respondent, and for his profit, without any lawful authority, it is strange that the learned trial judge wanted further proof of unlawful conversion of the money, to hold the Respondent liable, even after holding, correctly, that the Respondent made the Exhibit 2! It should be noted that the Respondent has not appealed against that finding!
Evidence had shown that, of the N79,000,000.00 (Seventy Nine Million Naira) unlawfully liquidated or withdrawn from the account of Bito Nigeria Ltd in the covers of the Appellant (which the Respondent had a duty to protect), some part of the money was recovered, leaving the sum of N24,840,000.00 (Twenty-four Million eight hundred and forty thousand Naira), outstanding, to be refunded by him (Respondent). It would amount to perverse reasoning to dismiss the claim for the balance from the Respondent, on whimsical reason that Appellant failed to prove forgery.
The law is trite that:
“There is the general presumption that once a person signs a document or places his mark on it, he owns up the content of what he signed or placed his mark upon. That is the purport of Section 75 of the Evidence Act, which says:
“No fact need be proved in any civil proceedings which the parties there to or their agents agree to admit at the hearing or, which before the hearing they agree to admit by any writing under their hand, or which by any rule or pleading in force at the time, they are deemed to have admitted by their pleadings.” See the case of Prince Hassan Oyedele & Anor. vs. Baale Sidiku Bamigboye Jimoh, an unreported decision of this Court in CA/IL/97/2010 delivered on 17/5/2012 (page 24 thereof):
In Adefarasin vs. Dayekh (2007) ALL FWLR (Pt.348) 911, it was held:
“A person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such person holds himself out as bound or responsible for the contents of such a document.”
In the case of Salam & Anor vs. Yusuf & 2 Ors. (2007) 5 S.C. the Supreme Court, per Tobi JSC held:
“A Court of law is entitled to give judgment based on admission by a party, if the admission is relevant to the facts in issue. See Salamatu vs. Biba (1975) NNLR 176. In civil cases, admission by a party is evidence of the facts asserted against him. Unless explanations are given which satisfy the Court that admission should not be so regarded, due positive weight should be given to them as such”
Exhibit 2 was therefore an eloquent admission to be relied on. See also the case of AJAOKUTA STEEL CO. LTD. & 3 ORS. VS. S. A. ROLE & 148 ORS, an unreported decision of this Court. CA/IL/19/2007, delivered on 5/7/2012 (page 34 thereof).
The trial judge had a duty to give effect to the admissions in Exhibit 2 in favour of the Appellant.
For this and the more elaborate reasons in the lead judgment, I too allow the appeal and set aside the decision of the trial Court in Suit No. KWS/45/2010, relating to Appellant’s claim. In its place, I, too, enter judgment for the Appellant in his first claim at the lower Court. I abide by the consequential orders in the lead judgment.
OBANDE OGBUINYA, J.C.A.: I have had the opportunity to read, in draft the lucid judgment delivered by my learned brother, Paul A. Galinje JCA. I am wholly, at one with him in his reasons and conclusions therein.
It would appear that the outstanding or kingly position of exhibit 2, made by the respondent himself, in civil proceedings was lost on the lower court. This is because, admission is the best proof required in civil proceedings. See Adusei vs. Adebayo (2012) 34 NWLR (Pt.1288) 534. By the respondent’s own ipse dixit in the exhibit 2, he conceded, clearly, that he made the unauthorized withdraws that precipitated the action. Put the other way round, the respondent in the exhibit 2 gave himself up to the law and, de jure, liable therein. In the realm of civil proceedings, which this matter happens to fall within, admission, made in a documentary form, as in exhibit 2, is the best and most dependable evidence, see Agbareh vs. Mimra (2008) 2 NWLR (Pt.1071) 378; Omiyale vs. Macaulay (2009) 7 NWLR (Pt.1141) 597; Anyanwu vs. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445.
In law, documentary evidence, such as the one in exhibit 2, predominates over any parol testimonies from the vocal cord of man. The said exhibit 2, therefore, is permanent, invincible and incorruptible in this matter. If it were properly evaluated by the lower court, it was potent enough to fetch the appellant its favourable verdict. Alas, the lower court, inadvertently, failed to accord the exhibit 2 its pride of place in the civil proceeding before it which, by law, can only be established on the balance of probabilities. On this premise, I hold that the law heavily weighs on the side of the appellant in this appeal.
Having regard to the above reasons, coupled with the comprehensive ones displayed in the leading judgment, I, too, allow the appeal and abide by the consequential orders made therein.
Appearances
Mr. David Oye OgunyemiFor Appellant
AND
Mr. R.O. Balogun
O.A. Fajanyo
Miss F.F. KadriFor Respondent
