ALBIA TRADING GMBH & ANOR v. MADUNKA INTERNATIONAL LIMITED & ANOR
(2013)LCN/6495(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of November, 2013
CA/K/311/2006
RATIO
IN PARI DELICTO: THE ATTITUDE OF COURT TO PARTIES IN PARI DELICTO
The court of law cannot protect or promote such transaction founded on exploitation and illegality. In the case of UMARU VS. TUNGA [2012] ALL FWLR [PT. 607] 726 at 746 this court held that ” no court will be friendly with or countenance illegality” The doctrine of in pari delicto was also expounded in the said case of UMARU VS. TUNGA (supra) ratio 4, when the Court held: “In pari delicto, portio est conditio defendetis and turpi causa non oritur actio means a party who is himself guilty of an action, does not have a right to enforce performance of an agreement founded on a consideration that is contrary to public interest or policy” Explaining this further, my lord YAKUBU JCA in that case (UMARU VS. TUNGA (SUPRA) said in ratio 3): “In pari delicto doctrine is the principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing. It is founded on the law of equity that a person who has benefited from a transaction cannot just turn round and say that the transaction was illegal. The attitude of Court to parties in pari delicto, is that if “one of two persons who enter into a fraudulent transaction, well knowing what they are doing, cannot come to the Court and obtain relief from his wrongdoing to the prejudice of his partner in the wrongdoing. Such a proposition seems to be an abuse of the process of the Court. It is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void. A man will not be allowed to take advantage of his own wrongdoing. In the instant case, where the plaintiff willfully participated in an illegal contract, the trial Court erred by granting his claim for a refund of his money paid under the contract which amounted to his benefitting from his own wrongdoing. (ADEDEJI VS. NATIONAL BANK OF NIGERIA LTD (1989) 1 NWLR (Pt. 96) 212; SYKES VS. BEADON (1879) L.R. 11 CH. D. 170; Black’s Law Dictionary, 8th Edition, page 807 referred to) (P.745, paras. A – F). Per ITA G. MBABA J.C.A.
JUSTICES
THERESA NGOLIKA ORJI ABADUA Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria
Between
ALBIA TRADING GMBH & ANOR Appellant(s)
AND
MADUNKA INTL. LIMITED & ANOR Respondent(s)
ITA G. MBABA J.C.A. (Delivering the Leading Judgment): Appellants (as Plaintiffs at the Court below) sued the Respondents (then Defendants) in suit No. KDH/KAD/445/2004 at the Kaduna High Court and the suit was placed on the undefended list for hearing and determination. It was a claim for US $231,782.00 (equivalent of N31,114,415.68) and 313,177.00 Euro (equivalent of N51,613,573.93) totaling N82,727,989.61 (Eighty Two Million, Seven Hundred and Twenty Seven Thousand, Nine Hundred and Eighty Nine Naira, Sixty One Kobo), outstanding on the Respondents’ statement of account with the Appellants as indebtedness to the Appellants. Appellants further claimed 10.5% interest on the Dollar Account and 9.5% interest on the Euro Account, per annum from 31/3/2004 until judgment and at 10%, from the date of judgment until liquidation.
The suit was later transferred to the general cause list, whereupon the parties filed their pleadings, with the Respondent counter-claiming, and a reply thereto by Appellants. The trial proceeded and the Appellants called three witnesses and tendered 24 exhibits. The Respondents called 2 witnesses and tendered one exhibit. The trial was concluded on 22/2/2006 and the trial judge, A.S. ABIRIYI J (as he then was), in a considered decision, dismissed the claim of the Appellants and granted the counter-claim, in part.
This appeal is against part of that decision, which said that Appellants did not prove their claim.
Appellants’ Notice of appeal was filed on 4/5/2006, as per pages 167 – 171 of the Records of Appeal, deemed duly compiled and transmitted to this Court on 12/2/13. Appellant also relied on a supplementary Records of Appeal. The Notice of Appeal disclosed three grounds of appeal.
Appellants filed their Brief of argument on 25/2/13 and distilled three issues for determination, namely:
“1. Whether the issue of “LENDING TRANSACTION” was an issue before the trial court
2. Whether interest was not properly charged and proved by the Appellants in the transaction between the parties
3. Whether from the totality of the evidence the Appellants did not prove their case and not entitled to judgment.
The Respondents filed their brief on 5/3/13 and adopted issues 2 and 3 as distilled by the Appellant, but modified issue one to read:
“Whether the evidence, both oral and documentary, that was led in this suit by the appellants show a lending transaction so as to make same an issue before the learned trial court?”
When the case was heard on 23/10/13 the Parties adopted their briefs and urged us, accordingly.
Arguing the appeal, Counsel for the Appellants, E.C. Aneme Esq, who settled the brief, on issue 1, submitted that the learned trial court was wrong to raise, suo motu, and make out a case for the parties, when it said that on the face of the documents a lending and borrowing transaction was disclosed, having earlier held that “no leading transaction was pleaded and no such evidence was led in this court”. He submitted that the duty of a court is to adjudicate on issues presented by the parties and not to go on its own voyage of discovery. He relied on the case of EKPETO VS. WANOGHO [2005] ALL FWLR [PT. 245] 1191; TINUOYE VS. AFOLAYAN [2005] ALL FWLR [PT. 265] 1157 at 1165; GATAH NIG. LTD. VS. ABU [2005] ALL FWLR [PT.278] 1186 at 1213; OKERE VS. AMADI [2005] ALL FWLR [PT. 269] 1925 at 1934.
Counsel further submitted that it is not proper for a judge to embark on examination of documents tendered as exhibits to discover new facts not proved by evidence; that the discovery of the trial judge that the business was a lending transaction between the parties, because of the words LENDER and BORROWER on exhibits 1 – 12, was therefore erroneous. He relied on WEST AFRICAN BREWERIES VS. SAVANNAH VENTURES LTD. [2002] FWLR [PT. 112] 53 at 72, and added that where a Court raises an issue/observation suo motu, it is incumbent on it to call on the parties to address it on the same, before reaching a decision; that failure to hear the parties on the issue amounts to a breach of fair hearing OBESSA VS. FRN [2005] ALL FWLR [PT. 282] 2010 at 2030 – 2031; LEAD MERCHANT BANK LTD. VS. PETROLEUM (SPECIAL] TRUST FUND [2005] ALL FWLR [PT. 270] 2082 at 2087 – 2088; ARAHA VS. EJEAGWU [2001] FWLR [PT. 36] 830 at 848
Alternatively, Counsel submitted that even if the Court was right to raise the issue suo motu (which he did out concede), that it was not correct to say that the transaction between the parties was a lending business; that the fact that the acceptance letters annexed to Exhibits 1-12 mentioned the words “LENDER” and “BORROWER” did not, ipso facto, render the entire transaction a lending business. He submitted that in construing the purport of a document, regard should be had to the entire document, to ascertain the intention of the parties/makers; that the parties had stated that they were engaged in international business: PW1 had stated that in the course of the business they prepared statements of accounts to the Respondents for confirmation of the Respondents’ indebtedness to them; that for the trial judge to simply pick the words “LENDER AND BORROWER” on the acceptance letters and conclude that it was a lending transactions ran contrary to the principles of interpreting/construing statutes/documents.
He further argued that, in law, parties are free to call their contract anything, as a matter of nomenclature, but it is the duty of the court to read between the lines and decipher their intention. He said that through-out the evidence, the parties did not say they were engaged in lending business, rather the 2nd Appellant made it clear they were not money lenders and that they were engaged in international trade with the Respondents in the process of which the Respondents were owing them (Appellants) money and they were charging interest, and that this fact of trading business transaction was not disputed by the Respondents.
He urged us to resolve the issue for the Appellants.
On Issue 2 – whether interest was properly charged and proved – Counsel answered in the affirmative. He referred us to paragraphs 20 – 22 and 28 of the statement of claim and to the evidence of PW1 on the issue, that from 1995 they intimated the Respondents of the desirability of charging interest and the Respondents accepted and signed the statements of account incorporating this, after explaining it to the Respondents (see page 101 of the Records). He submitted that though 2nd Respondent claimed ignorance of that and pleaded that he was an illiterate, the trial court found that he was indeed literate and that he signed all the documents – Exhibits 1 to 12 which he denied.
Counsel submitted that the trial court rightly stated the principle upon which interest could be charged by parties to a transaction on page 168 of the Record, that is, as of right and where allowed by statute relying on TEXACO OVERSEAS PETROLEUM LTD VS. PEDMAR LTD. (2002) FWLR (PT.126) 885 at 901; that the Respondents, having signed Exhibits 1 to 12, which carried the interest elements, and the interest was charged as of right since it was agreed upon were liable. Counsel submitted that parties are bound by their agreement, voluntarily entired into. He relied on UMTHMB VS. DAWA (2002) FWLR (PT. 108) 1402 at 1419.
He submitted that the 1st Principle under which interest could be charged was therefore satisfied, as the Respondents had signed Exhibits 1 to 12, which provided for the same; that the trial court therefore somersaulted, when he later held that it was immaterial that the Respondents signed the documents because Appellants, not being banks, could not charge interest. He submitted that once the test for charging interest has been passed, the party need not be a bank to take the benefit of the agreement of the parties thereto.
On issue 3 – whether Appellants did not prove their case – Counsel submitted that Appellants had proved their claim on the balance of probabilities and relied on section 137 of the Evidence Act, Cap 112 LFN; that the Respondents, having signed Exhibits 1 to 12, were bound by them – which showed a comprehensive transaction between the parties. That the Respondents cannot turn round to repudiate same. Also, he said Exhibit 13 was sent to the Respondents and they did not dispute the same.
Counsel relied on the case of IHOR LTD VS. FIRST CITY MERCHANT BANK LTD [2005] ALL FWLR [PT.274] 217 at 233, to say that Respondents did not dispute the account shown by their Appellants statement and that the same was deemed to have been accepted, including the interest and the rate. He also relied on section 72 of the Evidence Act.
He argued that the statement of Account, as per Exhibit 13, was the basis of the claim of the Appellants; that as the same was not disputed. Appellants were not required to prove the items, one by one. He relied on CHITTY ON CONTRACT, 23 Edition P.827, Paragraph 1778 – on Account stated.
He submitted that the final figure which Respondents owed the Appellants were clearly stated in the statements of account and the Respondents signed same as shown in Exhibits 1 – 13; that the trial judge was wrong in holding that the Appellants should have separated the principal from the interest, to show the principal sum from which they were charging interest; moreover, that the Respondents had admitted their debt to the Appellant, as per their acceptance of Exhibits 1 to 12.
Appellants urged us to resolve the issues in their favour and allow the appeal.
The Respondents’ counsel, Chief C.A. Alihasemomhe, on issue 1, referred us to paragraphs 20, 28, and 35 of Appellants’ statements of claim and said that Appellants pleaded various rates of interests -10.5%, 9.5% and 8%, and that the various rates were allegedly worked out and added to the alleged indebtedness, to make the claim of N82,727,989.61, as at 31/3/2004. He submitted that the said various interest rates and their addition to the alleged indebtedness of the Respondents were unilaterally done by the Appellants; that Respondents had denied the said paragraphs 20, 28 and 35 of the statement of claim, as per paragraphs 19, 20, 26, 35 and 47 of the statement of defence and counter-claim.
He argued that Exhibits 1 to 12 were tendered en-bloc and admitted, and on the face of them, the words LENDER and BORROWER were conspicuously written. He submitted that the evidence of PW1 supported the inference drawn by the trial court to the effect that what took place was a lending transaction, that PW1 had said, on page 107 of the Records:
“We did international trade with the defendants, in the process of which sometime the defendants were owing us money and we were charging interest. We charged interest because when loans are involved, it is normal to charge interest.”
Counsel submitted that the above, shows that loans were involved in this matter; that the PW1 further said:
“We started to charge interest from 1995 after we realized that the 2nd defendant sold the house he bought on our behalf, we told him we are no longer going to give loan free of charge.” (Pages 107 – 108 of the Records)
Counsel submitted that the above amounted to admission that they gave loan to the Respondents; that the words ‘lender’, ‘borrower’ and ‘interest’, as written on the said Exhibits and as supported by the evidence of PW1, reproduced above, connote nothing else than lending transaction, since loans are involved.
He submitted that the best and most natural proof of the contents of a document is to bring the document itself to court to read and construe; that the court was right in the way it construed the documents (exhibits 1 to 12), which were tendered by the Appellants, and which documents were not only conclusive, but also exclusive on the issues for which they were tendered; that by section 132(1) of Evidence Act, no oral evidence can be given to contradict, alter, add to or vary the contents of documents. He relied on the case of COLONIAL DEVELOPMENT BOARD VS. JOSEPH KAMSON [1955] 21 NLR 75; BAKO VS. KUJE AREA COUNSEL [2001] 1 NWLR [PT. 694] 380
Counsel further said that this is not a case where the Court raised an issue suo motu, but rather one where a party gave evidence contrary to his pleadings; that the tendering of documents which the words ‘lender and borrower’ were written was a marked departure from what was pleaded; that PW1 did not demonstrate the contents or purpose for which the exhibits 1 to 12 were meant; that the documents were just dumped on the Court, and the lending and borrowing were the transaction that emerged in the exhibits supported by the oral evidence of PW1 that were not pleaded. He said that in the circumstances, appellants deviated from their pleadings, and in their testimony, made a case different from what they pleaded, regarding their charging of interest; that the trial Court had no alternative than to reject the evidence. He relied on BAMGBOSE VS. OSHOKO & ANOR (1988) 5 SCNJ 116 at 122 – 123.
On issue 2 whether interest was not properly charged and proved by the Appellants in the transaction between the parties Respondents’ Counsel submitted that there was evidence that the Appellants charged various rates of interests – first 10.5%, later 9.5% and finally 8%, all worked out unilaterally by the Appellants and added to the alleged amount owed, all amounting to N82,727,989.61, as at 31/3/2004; that PW1’s evidence disclosed that in 1995 Appellants charged interest at the rate of 10.5% on the Us Dollars accounts, 12.5% on the Dutch Mark account (which was later reduced to 9.5% and again to 8%); that Appellants did not give evidence to show how much the Respondents actually owed on which the interest were charged; that when cross examined on the principal amount, allegedly owed, PW1 said;
“I cannot say the principal amount the defendants were owing in 1990s when we stopped business. The exhibits will give me an idea what the principal sum was when we stopped business. I cannot check the principal amount from the exhibits” (Page 111 of the Records)
He said that the PW1 also said: “The amount we are claiming is principally interest spread over the years” (page 112 of the Records).
Counsel submitted that in the light of the above, it is hard to say that the interest claimed was proper, when the principal sum owed (which yielded the alleged interest) could not be ascertained; that the findings of the trial Court was therefore correct that it is not the duty of the Court to sift the principal sum from the interest for the plaintiffs, as it was their duty to establish the principal sum, on which they charged interest; that the burden of proof of the principal amount allegedly owed by the Respondents was on the Appellants; that the interest had no independent existence without the principal sum and the Appellants failed woefully to discharge that burden.
Counsel repeated that the Exhibits 1 to 12 were dumped on the Court as Appellants did not lead oral evidence to explain what constituted the principal sum and what was the interest. Thus, he said, the entries in the said exhibits were never the subject of oral evidence in Court. He relied on the case of DURINMINIYA VS. C.O.P. (1961) NRNLR 70 at 73 – 74. He added that it was not the duty of the trial Court to examine and sort out the documents tendered and make out a case for a party. He relied on the case of OBASI BROTHER MERCHANT CO. LTD VS. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 25; THE QUEEN VS. WIKOX (1961) ALL NRL 658 at 660 -661; ONIBUDO & ORS VS. AKINBU & ORS (1982) ALL NLR 207 at 219.
Counsel submitted that the evidence by the Appellants supported the Respondents’ denial of being indebted in any sum to the Appellants. He referred us to paragraph 35 of the statement of defence and counter-claim and Exhibit 25. He also referred to the findings of the trial Court on page 162 of the Records, where it said:
“I agree entirely with……counsel for the defendants too that the plaintiffs could not have been charging interest on any existing principal sum as there was no such principal sum.”
He urged us to uphold that findings and hold that the interests were not properly charged and proved, notwithstanding the purported signing of the letters of acceptance.
Counsel also argued that the claim by the Appellants that “charging of interest is a practice and custom of international trade” was not also proved as the claim had been denied by the Respondents; that the Court had also made findings to that effect, plus the fact that the alleged practice/custom was not pleaded (page 169 of the Records).
On issue 3, whether Appellants had proved their case, Counsel for the Respondents answered in the negative. He repeated that it was not the duty of the trial Court to unbundle the exhibits dumped on the Court, to sort out what they were meant for as that would mean going on a voyage of discovery. He repeated some of their submissions on issues one and two and urged us to resolves the issues against the Appellants and dismiss the appeal. He relied on the case of OJIGBE VS. OKWARANYIA [1962] ALL NLR [PT. 2598] at 603; RAMAHU VS. UMUNNA [1975] JOE IGA VS. AMAKARI [1976] 11 CC1; OEIE VS IGHIWI [2005] VOL. 3 MJSC 82 at 99; BELLO VS. EWEKA [1981] 1 SC 101, saying that PW1’s evidence, that the amount they were claiming was principally interest spread over the years, and that they sufficient proof that there was no principal debt that brought about the interest.
RESOLUTION OF ISSUES
I shall take the issues together, because they are related.
Appellants’ claim at the court below, as per the writ of summons filed on 11/6/2004, simply stated:
“The plaintiffs’ claim is for the following:
1. The sum of (a) US $231,782.00 (Equivalent to N31,114,415.68)(b) Euro. 313,177.00 (Equivalent N51,613,573.93).
Total: N82,727,989.61 (Eighty two Million, Seven Hundred and Twenty Seven Thousand and Nine Hundred and Eighty Nine Naira and Sixty One Kobo), which said amount represents the Defendants’ statements of account and their indebtedness to the plaintiffs’.
2. The defendants have failed, neglected and refused to pay back their said debts to the plaintiffs despite repeated demands.
3. The plaintiffs further claim interest on the two accounts at the annual rate of 10.5% on the US$ Account and 9.5% on the Euro Account on pro rata basis, respectively, as above agreed by all parties in this suit, from 31st March 2004, until the judgment is delivered, and 10% interest rate from the date of judgment until the judgment sum is fully paid by the defendants”
Of course, the Respondents had denied the claim and in their statement of defence and counter-claim sought:
“(1) A declaration that both the 1st and 2nd plaintiffs are not entitled to interest in the sum claimed in this suit or any other sum at all.
(2) A declaration that the plaintiffs, not being banking or financial institutions are not entitled to charge interest unilaterally at the rates of either 10.5% or 8.5% or 8% per annum or any sum of money involved in this suit without the consent of the defendants,
(3) A declaration that all the claims in respect of the alleged debts involved in this suit in 1993, 1994, 1995, 1996, 1997, 1998 and 1999 between the parties herein are statute barred and therefore unenforceable” (See pages 13 and 14 of the supplementary Records of Appeal)
The trial court in its ruling, found, as a fact, that:
“……There was no known principal sum on which the plaintiffs were purportedly charging interest. One may go further to even say that there was no principal sum on which interest was being charged. It is an admission as Chief Ekhasemomhe rightly submitted that what the plaintiffs’ are claiming is purely interest. See section 19 and 20 of the Evidence Act.” (page 163 of the Records)
The trial court further said:
“In the instant caser as Chief Ekhasemomhe pointed out, the plaintiffs tendered a bundle of documents Exhibits 1-12. They pleaded business transactions which the PW1 in evidence called account statements and letters of acceptance. On the face of the documents, however, it is a lending transaction between the 1st plaintiff as the lender and the 2nd Defendant as borrower. No lending transaction was pleaded and no such evidence was led in this court. I do not see how a court of law would rely on such documents when they have not been examined and their true nature brought out in court.” (Pages 162 – 163 of the Records)
Appellants have not appealed against those fundamental findings about the alleged debt, what was the principal sum owed and what was the interest claimed and how calculated to result in the alleged N82,727,989.61! It is also on record that the PW1 had told the court;
“The amount we are claiming is principally interest spread over the years” (page 112). He also said, under cross examination:
“I cannot say the amount the defendants were owing in 1990s when we stopped business. The exhibits will give me an idea what the principal sum was when we stopped business. I cannot check the principal amount from the exhibits” (page 111 of the Records)
The said documents (exhibits 1 to 12), which Appellants prepared for the Respondents to sign, allegedly carrying the amount claimed by the Appellants, were tendered by the Appellants and same were before the court and yet Appellants failed to lead oral evidence to explain the content of the documents to show what was the principal sum of the debt and when it accrued and what was the interest element and how calculated. The alleged debt did not also separate the principal from the alleged interest.
PW1 admitted he could not check or see the principal amount in the exhibits, and that the amount they claimed was principally “interest spread over the years”!
Instead of establishing evidence to prove the alleged debt, Appellants appeared to be more interested in the observation made by the trial court, that the Exhibits 1 to 12, on the face of it, clearly presented a lending transaction, with words LENDER and BORROWER clearly written on the documents.
Their quarrel was that the observation touched on an issue not before the court, and that it was raised suo motu by the court, even when the court also rightly observed that “no lending transaction was pleaded and no such evidence was lead in this case”
I cannot see how that observation by the trial Court, (which, in my opinion, was legitimately made, given the evidence, documentary and oral, adduced by the Appellants in the case), could become an issue in this Appeal, as the said observation was not the basis of the decision of the learned trial court in the case, but a mere obita dictum, which was a “by the way” reference in the case.
Appellants had told the court that they “did international trade with the defendants” which resulted in the alleged debt. Apart from the fact that Appellants merely dumped the exhibits 1 – 12 on the court, they appeared not to have any evidence to establish any principal sum owed by the Respondents on which they could calculate and spread the purported interest!
The law is trite that:
..A party relying on documents in proving his case must relate such documents to the specific areas of his case in respect of which the document is being tendered in support……there must be link between the document and the specific areas of the case of a party. The court cannot assume the duty of tying each bundle of documentary exhibits to specific aspects of the case for a party when the party has not himself done so.” AUDU VS INEC NO. 2(2010) 13 NWLR [PT. 1212] 456 at 520.
See also the unreported decision of this court in MATRCO INVESTMENT LTD. & ANOR VS. STERLING BANK PLC. CA/K/276/2011 delivered on 25/10/13, page 35 thereof:
“As earlier observed in this judgment, Appellants’ Exhibit F, which appeared to be the fulcrum of the suit, being in the realm of speculation, failed to link up with the live issues in controversy, relating to the actual management of the account of the 1st Appellant by the Respondent in respect of the facilities granted in 2007 and 2008, which resulted in the debit balance sent to the Appellants as per Exhibit H – dated 21/7/2009 (page 335 of the Records). The trial Court could not have relied on the speculations in Exhibit F to give judgment to the Appellants.”
Appellant had said. “We did international trade with the defendants in the process of which sometime the defendants were owing us money and we were charging interest. We charged interest because when loans are involved, it is normal to charge interest.” (Page 107 of the Records).
By so saying, and as seen on the face of the Exhibits 1 to 12, Appellants were boldly claiming the right to lend money to the Respondents, in various currencies, and charge interests at various rates, as they wished, as if they were a bank, licenced to lend money and charge interest on the loans. Even a bank, so licenced, does not enjoy the liberty of charging interests, at will, unilaterally, as it is regulated and supervised by law and the Central Bank in such transaction, to ensure that the borrower is protected.
Of course, Appellants were into some shady and illegal transaction, which they called international trade, subjecting the Respondents to a rip- off, because the latter needed some credit facilities to do business. Appellants appeared to capitalize on the Respondents’ vulnerability or desperation, to impose outrageous interests on them, and to unilaterally prepare what they called statements of Accounts (Exhibits 1 to 12) for Respondents to sign as outstanding interests, allegedly owed without disclosure of any principal sum to found the alleged interests.
The court of law cannot protect or promote such transaction founded on exploitation and illegality. In the case of UMARU VS. TUNGA [2012] ALL FWLR [PT. 607] 726 at 746 this court held that ” no court will be friendly with or countenance illegality” The doctrine of in pari delicto was also expounded in the said case of UMARU VS. TUNGA (supra) ratio 4, when the Court held:
“In pari delicto, portio est conditio defendetis and turpi causa non oritur actio means a party who is himself guilty of an action, does not have a right to enforce performance of an agreement founded on a consideration that is contrary to public interest or policy”
Explaining this further, my lord YAKUBU JCA in that case (UMARU VS. TUNGA (SUPRA) said in ratio 3):
“In pari delicto doctrine is the principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing. It is founded on the law of equity that a person who has benefited from a transaction cannot just turn round and say that the transaction was illegal. The attitude of Court to parties in pari delicto, is that if “one of two persons who enter into a fraudulent transaction, well knowing what they are doing, cannot come to the Court and obtain relief from his wrongdoing to the prejudice of his partner in the wrongdoing. Such a proposition seems to be an abuse of the process of the Court. It is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void. A man will not be allowed to take advantage of his own wrongdoing. In the instant case, where the plaintiff willfully participated in an illegal contract, the trial Court erred by granting his claim for a refund of his money paid under the contract which amounted to his benefitting from his own wrongdoing. (ADEDEJI VS. NATIONAL BANK OF NIGERIA LTD (1989) 1 NWLR (Pt. 96) 212; SYKES VS. BEADON (1879) L.R. 11 CH. D. 170; Black’s Law Dictionary, 8th Edition, page 807 referred to) (P.745, paras. A – F)
Appellants could not therefore be allowed to profit from their own evil scheme or wrong doings by forcing the Respondents to settle a debt not established and which was shrudded in graft and blackmail, simply because Respondents had signed Exhibits 1 to 12. I think the learned trial judge was right in his findings and decision.
In the same way, the Respondents would not be allowed to ran away with any verifiable debt owed to the Appellant, simply because the transaction was rooted in illegality.
Apart from the obvious questionable foundation of the claims of the Appellants, they failed, woefully, to establish the interests, with the absence of any known or credible principal sum to found them (interests). And if the claim was principally interest spread over the years, as Appellants admitted, then. Appellants failed, woefully, to prove their claim.
I therefore resolve the issues against the Appellants and hold that the appeal is devoid of merit and should be dismissed. It is hereby dismissed.
Appellants shall pay cost assessed at thirty thousand Naira (N30,000.00) to the Respondents.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree with my learned brother, Mbaba, J.C.A., who has just delivered the leading judgment in this appeal that the appeal is lacking in merit and should be dismissed. I, too, dismiss the same and abide by the order as to costs made therein.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I had the privilege of reading before now the lead judgment delivered by my learned brother, Ita Mbaba, JCA. His Lordship has commendably resolved the issues contended by the parties on this appeal and I agree with the reasoning and abide the conclusions reached in the lead judgment.
The claims of the Appellants, as plaintiffs, against the Respondents, as defendants were for the sums of USD231,782.00 (equivalent to N31,114,415.68) and Euro 313,177.00 (equivalent to N51,613,573.93) totaling the equivalent sum of N82,727,989.61, being the debit balance in the statements of account of the Respondents as at 31st of March, 2004, together with interest at the rate of 10.5% per annum on the Dollar Account and, 9.5% on the Euro Account from the 31st of March, 2004 until judgment and thereafter at the rate of 10% per annum until the judgment is fully paid.
It was the case of the Appellants that these debts arose in the course of a business relationship between themselves and the Respondents and were a culmination of monies owed to them over the many years that the relationship lasted by the Respondents together with interests. The Respondents contended the case of the Appellants and they denied owning the Appellants any sum of money and stated that they had paid up whatever monies were outstanding from them to the Appellants. The onus in this matter was on the Appellants, not only to prove that the Respondents were indebted to them, but also the amount outstanding on the indebtedness.
From the case of the Appellants, both on the pleadings and in the testimonies of their witnesses, their entire claims were based on the documents which they said contained the statements of the accounts of the Respondents, and tendered as Exhibits 1 to 13. It was from these documents that they extracted the debit balances which they claimed.
In the judgment, lower Court said of the documents thus:
“Now what are Exhibits 1-13 worth? A trial is a public demonstration and testing before a court, the cases for the contending parties. A court should not examine documents which were in evidence when the documents had not been examined in court and things brought out and exposed to test in court or noticed in court….
In the instant case as Chief Ekhasemomhe rightly pointed out the plaintiffs tendered a bundle of documents Exhibits 1-12. They pleaded business transaction which the PW1 in evidence called statements of account and letters of acceptance. On the face of the documents however it is a lending transaction between the 1st plaintiff as the lender and the 2nd Defendant as borrower. No lending transaction was pleaded and no such evidence was led in court.
I do not see how a court of law would rely on such documents when they have not been examined and their true nature brought out in court.
Apart from this as chief Ekhasemomhe rightly pointed out it was for the plaintiffs to illustrate from the said documents what the principal debt from which they were charging interest was. This they did not do. In fact they could not on the available evidence say what it was. I am not unmindful of the attempt by PW2 to show what it was from one of the exhibits but hear what the PW1, the 2nd plaintiff himself said:
‘I cannot say the principal amount Defendants were owing in the 1990s when we stopped business. The exhibits will give an idea what the principal sums was when we stopped business. I cannot check the principal amount from the exhibits.’
It is clear from the foregoing that it is not the duty of this court to sift the principal sum from the interest for the plaintiff. It is not even possible for the court to do so.
Even if it were possible, the court is not permitted to do so for the plaintiffs. It was for them to show the principal sum from which they are charging interest. But PW1 said they cannot do so from the documents tendered in court…”
The lower Court stated that it was immaterial that the documents were signed by the second Respondent and that since the Appellants failed to lead evidence to show the basis of the entries in the said statements of account, the documents were not of any probative value and it dismissed the claims of the Appellants. The Appellants have urged this court to hold that the findings of the lower Court were wrong and to set aside the judgment.
Now, the law is that the appropriate method used by a lender to establish the indebtedness of a borrower is through entries in its books and these entries are usually constituted into a statement of account and which represents secondary evidence of the entries in the lender’s books – Akanmu Vs Cooperative Bank Plc (2006) 2 NWLR (Pt 963) 82. It is settled that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account should adduce both documentary and oral evidence explaining clearly the entries therein to show how the overall debit balance was arrived at Co-operative Bank Ltd vs Otaigbe (1980) NCLR 215, Yusuf Vs African Continental Bank (1986) 1-2 SC 49, Habib Nigeria Bank Ltd Vs Gifts Unique (Nig) Ltd (2004) 15 NWLR (Pt 896) 405, Wema Bank Plc Vs Osilaru (2008) 10 NWLR (Pt 1094) 150. Where there is a dispute on the indebtedness, the party cannot just toss and dump before the Court the statement of account in proof of the indebtedness of the customer for the overall debit balance therein. It must demonstrate through oral evidence given by an official who is familiar with the accounts, how the debit balance was arrived at – Biezan Exclusive Guest House Ltd Vs Union Homes Savings & Loans Ltd (2011) 7 NWLR (Pt 1246) 246 and Bilante International Ltd vs Nigerian Deposit Insurance Corporation (2011) 15 NWLR (Pt.1270) 407.
Reading through the testimonies of the plaintiff witnesses in this matter, none of them gave clear and direct evidence showing how the debit balances in the said Exhibit 1 to 13 were arrived at. All they made were general statements and they skirted around the specifics. The lower Court was thus on firm ground when it refused to accord probative value to the documents, and this completely took “the wind out the sail” from the case of the Appellants. The dismissal of the case of the Appellants was in order for lack of credible proof.
It is for this reason, and the more detailed reasons contained in the lead judgment, that I too find no merit in this appeal. I hereby affirm the judgment of the High Court of Kaduna State in Suit No KDH/KAD/ 445/2004 delivered by Honorable Justice J.S. Abiriyi (as he then was) on the 22nd of February, 2006. I abide the order on costs in the lead judgment.
Appearances
E.C. Aneme Esq.,For Appellant
AND
Chief C.A. EkhasemomheFor Respondent
