PATRICK ARIRIGUZO KSM v. DR. SYLVANUS AMAECHI (2014)

PATRICK ARIRIGUZO KSM v. DR. SYLVANUS AMAECHI

(2014)LCN/7053(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of March, 2014

CA/OW/340/2011

RATIO

WHETHER A PERSON DISSATISFIED WITH THE DECISION OF A COURT IN AN INTERLOCUTORY RULING MAY APPEAL AT THAT INTERLOCUTORY STAGE

The law is now settled that a person dissatisfied with decision of court in an interlocutory Ruling or decision needs not bother himself appealing at that interlocutory stage as such an appeal could conveniently be taken along an appeal against the ultimate judgment or final decision in the matter in order to save time and the matter could be expeditiously disposed of. See
1. CAPTAIN E.C.C. AMADI VS N.N.P.C. (2000) 6 SCNJ at 20 where UWAIS, CJN bluntly stated,
“The Ruling of the High Court was delivered on the 20th day of June, 1988. The judgment in the appeal
against the ruling was delivered by the Court of Appeal on the 16th day of February 1989. The final judgment on the interlocutory appeal is delivered today by this court. It has thus taken thirteen years for the case to reach this stage. With the success of the plaintiffs appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits, after a delay of 13 years Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that Counsel owe it, as a duty, to the court to help reduce the period of delay in determining case in our courts by avoiding unnecessary preliminary objections as the one here so that the adage justice delayed is justice denied may cease to apply to the proceedings in our courts”.
2. See also CHIEF S. B. BAKARE vs. ACB LTD (1986) 1 NSCC 694 at 642.
In the case of BARTHOLOMEW OLUBUARIRI & ORS VS. ISAAC IGBOASOIYI & ORS (2011) 1 SCM 100 AT 113, F. ONNOGHEN, JSC SAID:
“It is true that no separate Notice of Appeal was filed with respect to the Ruling of the Lower Court admitting Exhibit 1 but it is settled law that an Appellant can appeal against an interlocutory decision of a Lower Court with main appeal against the final decision of the court, as in the instant case.”PER PETER OLABISI IGE, J.C.A.

DUTY OF COURT: WHETHER AN APPEAL COURT MAY INERFERE WITH THE FINDINGS OF A TRIAL COURT

The settled position of the law is that a court of Appeal will not interfere with the findings of a trial court unless it is satisfied that such findings are perverse or that the trial court did not adequately utilize the opportunity or advantage of seeing and hearing the witnesses testify before it. A party complaining like the Appellant herein must demonstrate that the trial Judge misapplied facts, oral and documentary evidence before him and therefore occasioning a miscarriage of justice. See DANIEL GARAN VS. STAFF OLOMU (2013) 10 SCM 88 AT 102 1 TO 103 A WHERE DATIJO MUHAMMEDA, JSC SAID:
“An issue in an appeal distilled from a ground of appeal in Appellant’s notice complaining about any lapse in the decision being appealed against is only resolved in favour of the Appellant not only on the basis of the actual occurrence of the alleged error but on the further proof by the Appellant that the occurrence of that error has occasioned a miscarriage of justice.”
See also the case of LEKAN SHODIYA VS. THE STATE (2013) 12 SCM 175 AT 187 E WHERE DATTIJO MUHAMMAD JSC also said:
“where the trial court unquestionably evaluates the evidence and justifiably appraises the facts it is not the business of the appellate court to substitute its own view for the view of the trial court.” PER PETER OLABISI IGE, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

PATRICK ARIRIGUZO, KSM Appellant(s)

AND

DR. SYLVANUS AMAECHI Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court Owerri, contained in the judgment of Hon. Justice NONYE OKORONKWO (NOW JCA) delivered on 29th day of July, 2011.

The Appellant as the Plaintiff instituted the action culminating in this appeal vide Writ of Summons issued out of the Lower Court on 27/4/2007. It was brought under the undefended list procedure. The Respondent was allowed to defend the action upon his Notice of intention to defend the reliefs sought by the Appellant which as per paragraph 27 of his statement of claim reads:
“Wherefore the Plaintiff claims against the defendant as follows:
1. The sum of N860,000 being the balance of a friendly loan owed the plaintiff by the defendant not paid.
2. N530,753.11 being specific damage as a result of loss of interest accruable on the loan by reason of the defendant not paying back the loan.
3. N1,000,000 general damages.,’
In his Defence and counter claim the Defendant counter – claimed against the Appellant as follows:
COUNTER CLAIM
“1. The defendant/counter claimant claims against the claimant the sum of N640,000 (six hundred and forty thousand Naira) being the amount he owes the defendant made up as follows;
a. Friendly loan cash dated 10/3/2006 N50,000
b. Friendly loan dated 10/3/2006 N50,000 cheque
c. Friendly loan dated 20/3/2006 N50,000 cheque
d. Cheques dated 30/3/2005, 10/6/2005 and 13/12/2005 for N200,000; N50,000; and 100,000 respectively which the claimant converted to his own use till date.
e. N140,000 cash being the balance of N1,500,000 which the claimant withheld after transferring N1,360,000 to the defendant’s personal account.
Total 640,000.00
2. The defendant adopts the averments in paragraph 2-38 of the Statement of Defence and incorporates same in this counter claim”
In the judgment delivered as aforesaid the Lower Court held as follows:
“In view of all the evidence touching on the credibility of the plaintiff; I find it extremely difficult if not impossible to ascribe any probative value to the allegations of the plaintiff concerning an agreement to transfer plaintiff’s money into the defendant’s account and for the defendant to repay the plaintiff within a month. I do not believe the plaintiff. Since the plaintiffs claim is founded entirely on his credibility which on the evidence I have discountenanced. I am left with no option than to dismiss the claimant’s case in its entirety. Accordingly the claims of the claimant are dismissed.
For the defendant’s counter-claim the defendant/counter claimant claimed against the plaintiff the sum of N640,000.00 being the amount the plaintiff owe the defendant made up as follows-
(a) Friendly loan cash dated to 10/3/2006  =  N50,000.00
(b) Friendly loan dated 10/3/2006 cheque =   N50,000.00
(c) Friendly loan dated 20/3/2006 cheque =   N50,000.00
(d) Cheques dated 30/3/2005, 10/6/2005 and 13/12/2005 for N200,000; N50,000 and N100,000 respectively which the claimant converted to his loan use till date.
(e) N140,000 cash being the balance of N1,500,000 which the claimant withheld after transferring N1,360,000 to the defendant personal account
Total………. = N640,000.00
The defendant adopted paragraphs 2-38 of the statement of defence for the counter claim. The defendant also gave evidence in respect of the counter-claim.
No reply was filed against the counter-claim. S. Amadi-obi thinks that a reply was not necessary if the statement of claim itself sufficiently answer the issues raised in the counter claim.
In considering the defendant’s counter claim, I shall have regards to my judgment above regarding the plaintiff’s claim and my observations thereat and holden therein that the plaintiff’s case lacks credibility.
In regards to the counter claim, there is evidence in Exhibit N which shows that cheques for N50,000 of 10/3/2006, N50,000 of 20/3/2006, N100,000 of 13/12/2005. N50,000 of 10/6/2005 and N200,000 of 30/3/2005 all of Union Bank were issued to the plaintiff Patrick Aririguzo.
There is also an acknowledgement of cheques No.00090127 for N50,000 of 10/3/2006 cheque No.00090128 for N50,000 of 20/3/2006 and cash of N50,000 in N500.00 denomination.
In the memorandum plaintiff stated that he went with Steve Ihedoro Steve Ihedoro testified for plaintiff as PW1, he said nothing regarding these payments. There is also a receipt by the plaintiff dated 9/3/2006 Exhibit N. for N50,000 from Dr. S. O. Amaechi – The receipt did not show the purpose of the payment.
The defendant says that some of this payment were for the plaintiff to pay into the account of the defendants Hospital while some were friendly loans to the plaintiff which he never paid back. The defendant tendered Exhibits R, R1, R2, R3, R4, which are stumps or counterfoils of these cheques defendant issued to the plaintiff either for payments into defendant’s account or as friendly loans. There is no evidence that the plaintiff paid the proceeds of those cheques into the defendant’s account as was intended by the defendant neither did plaintiff refund those that were for friendly loan as expressed in Exhibit R series.
On the basis of Exhibit N series and exhibit R series, I accept the evidence of the defendant that he (defendant) made those payments to the plaintiff for the purposes stated by the defendant. I also hold that the plaintiff has failed to show that he either paid the proceeds of those cheques into the defendants hospital account neither did he (plaintiff) refund those that were loaned to him. I believe the evidence of the defendant on the counter claim. I hold that the defendant has proved his counter-claim and is entitled to judgment on it. The counter claim succeeds.
The plaintiff shall play the defendant the sum of N640,000.00 as claimed in the counter claim.”

Dissatisfied with the aforesaid judgment the Appellant filed his Notice and grounds of Appeal on 29th day of September, 2011. The said Notice of Appeal which is dated 27th day of September, 2011 contained four (4) grounds. The four grounds of appeal and their particulars are as follows:
GROUNDS OF APPEAL
GROUND ONE
The learned trial judge erred in law when he held that:
“The cheques described in exhibit N issued to Patrick Aririguzo and the receipt and memorandum stating monies received from DR. AMAECHI did not show what the payments were meant for or the purpose for which they were made, it therefore becomes difficult to relate these payments to any discernible agreement except by conjecture. I will not undertake such a course.,’
Particulars of Error
1. There was evidence that the cheques and the N50,000 acknowledged in cash were monies paid as part of the refund of money loaned to the defendant by the Appellant/Claimant.
2. There was evidence that the cheques were in the personal name of the Appellant/Claimant.
GROUND 2
The learned trial judge erred in law when he admitted exhibit 1, 2, 3, 4, 9 and 10 and relied on them.
PARTICULARS OF ERROR
1. There was evidence that exhibit 1, 2, 3 and 4 were copies of documents and not made by the person tendering the documents.
2. There was evidence that exhibits 1, 2 and 3 were discredited documents.
3. There was no evidence explaining the absence of the makers of the said documents from tendering them themselves.
4. There was evidence that the documents are photocopies, and no explanation was offered about the originals, and objection was duly taken against their admission.
5. There was evidence from evidence purported source of the said exhibit 1, 2, 3 and 4 that the documents do not exist and did not emanate from them.
6. There was evidence that exhibit 9 and 10 were not tendered by the makers.
7. There was evidence that exhibits 9 and 10 were photocopies of statement made to the police which makes them a public document and they were not certified.
GROUND 3
The learned trial judge misdirected himself when he held that in considering the defendant’s counter claim I shall have regards to my judgment above regarding the plaintiff’s claim and my observations thereat and holden therein that the plaintiff’s case lack credibility.”
PARTICULARS OF MISDIRECTION
1. There was evidence that the document, the learned trial judge relied on to determine the lack of credibility of in claimant/Appellant’s case were non-existent and are not admissible in law.
2. There was evidence that the defendant/respondent case of giving money to the claimant appellant is most unlikely as the money was given on a Sunday by his evidence in chief vide cross-examination he said it was not on a Sunday.
3. There was evidence that the witness PW1 (Eddy Ejiogu) relied on by the trial judge was not a credible witness vide evidence of PW3 a subpoenaed witness from the bank.
4. Exhibit 4 relied on by the trial judge did not state the fact the trial judge gave to it.
5 There was evidence that the claimant/appellant was the assistant manager of the bank and does not need permission to access account of a customer.
GROUND 4
The judgment is against the weight of evidence
4. Reliefs sought from the court of appeal
The appellant is praying the court of appeal to allow the appeal grant the claimant/appellants claims and dismiss the Defendant/Respondent’s counter claim.”

The Appellant filed his Brief of Argument in this appeal on 3rd day of May, 2012. The said Appellant’s Brief of Argument is dated 3rd May 2012.

The Respondent filed his Brief of Argument dated 14th day of November, 2012, on 16th November, 2012. This appeal was heard on 15th day of January 2014 when the Learned Counsel to the parties adopted their respective Brief of Argument.

The Appellant’s Learned Counsel S. Amadi Obi Esq. formulated three issues for determination viz:
1. Whether the Learned trial Judge was correct in refusing to consider the evidence of repayment of loan presented by the Appellant.
2. Whether the Learned trial Judge was right in admitting exhibit 1, 2, 3, 4,, 9 and 10 which were discredited and inadmissible exhibits and relied on them.
3. Whether the Learned trial Judge was correct when he held that the Appellants claim does not have any merit and thus granted the Respondent counter claim.
The Respondent’s Learned counsel distilled two issues for determination of this appeal as follows:
1. whether the trial court was right in dismissing the Appellant’s claim and granting the counter – claim of the Respondent (Grounds 2, 3 and 4).
2. whether the trial court was right in its findings that the cheques admitted as Exhibit “N” and the memorandum acknowledging receipt of 50,000 (fifty thousand Naira cash) by the Appellant were not evidence of repayment of any loan to the Appellant (GROUND 1)

I am of the view that this appeal can be determined on the issues formulated by the Appellant for determination in this appeal. I will treat them seriatim.

ISSUE ONE
Whether the learned trial judge was correct in refusing to consider the evidence of repayment of loan processed by the Appellant.

The Learned Counsel to the Appellant S. Amadi Obi, Esq. referred to the findings of the trial court on Exhibit “N” stating that the said Exhibit did not show what payments were meant for or the purpose for which they were made. It is the submission of the Appellant that no one asked the learned trial judge to make or embark on guess work but that the learned trial judge was called upon to evaluate the evidence before him on an imaginary scale in order to weigh the evidence and assign probative value on them. That the Learned trial Judge failed in that duty and at abdicated his responsibility. He urged this court to intervene. He placed reliance on the case of AJIBI vs. OLAEWE (2003) 8 NWLR (Pt.822) 237 per Adekeye, JCA as then was and JIBRIN vs. BABA (2004) 16 NWLR (PT 899) 243 per MUKATAR JCA.

Appellant learned counsel stated that both parties testified on Exhibit “N”, N1 and N4 which Appellant stated are cheques and cash receipts of N50,000 together with cheques which Appellant said amounted to N50,000.00 as evidence of repayment of loan. He relied on paragraph 22 of Witness Statement on oath of Appellant and the explanation the Respondent tried to make on the repayment of loan amounting to N50,000.00 on page 69 of the record and paragraphs 14-15 of Respondent’s Statement on Oath. He asked this court to evaluate the evidence before the trial court on the issue. He relied on the case of NDAYAKO vs. DANTORO (2004) 15 NWLR (Pt.889) 187 per Edozie, JCA. He urged the court to look at the oral and documentary evidence before the court relying on the case of FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 AT 567 per NIKI TOBI, J.C.A. The learned counsel to the Appellant drew attention to what he described as contradiction in the evidence of the Respondent.
In response to the issue concerning Exhibit “N” series as to whether they are for repayment of loan the Appellant said he gave to Respondent, M. O. Nlemedim, Esq. for Respondent stated that on the face of Exhibit “N” to “N”, the purpose for which the cheques were meant was not stated and that Appellant failed to provide credible evidence to prove his claim that the cheques were issued by Respondent to repay loan allegedly granted to him by the Appellant. That this Appellant had approached the Court with dirty hands. Respondent relied on the case of EMMANUEL OLAMIDE LARMIE VS. DATA PROCESSING MAINTENANCE & SERVICES LIMITED (2006) ALL FWLR (Pt.296) 775 AT 803 C-D.
That from the state of the leadings and the evidence given at the trial, the Learned Counsel to Respondent Nlemadim, Esq. submitted that Appellant failed woefully to prove his allegation. That the court below was right to have dismissed the Suit for want of proof. That paragraphs 12, 13, 15, 21 and 22 of the statement of defence were not traversed by the Appellant. That they are therefore deemed to have been admitted by the Appellant. He relied on the case of OSHINOWO VS. OSHINOWO (2005) ALL FWLR (Pt.281) 1698 AT 1722 C-E.

That the Respondent gave evidence in support to his pleadings that some of the cheques in EXHIBITS “N” – “N4” were cheques issued to Appellants to cash and pay into the Respondent’s Corporate account while some are friendly loans the Respondent gave the Appellant. That the DW1 was an eye witness to the transactions and that DW1’s evidence was not challenged by the Appellant under cross examination. He relied on the witness statement on oath of DW1 page 62 of the record. That the Lower Court was therefore right in accepting the evidence of DW1 and DW3. That the Lower Court was also right not to have been swayed by the Appellant’s speculative argument that the purpose of EXHIBIT S ‘N’, ‘N2’-‘N4’ was meant for a purpose other than the one clearly stated in Exhibits “R” to “R4”. That a court cannot dwell on speculation. He relied on the case of RIVERS VEGETABLE OIL CO. LTD VS. EGBUKOLE (2010) ALL FWLR (PT 544) 111.

That it is within the exclusive domain of the trial court to assess the credibility of witnesses. He therefore urged this court not to interfere or disturb the findings based on the credible evidence before the trial court. He relied on OKEOWO V. ATTORNEY GENERAL, OGUN STATE (2010) ALL FWLR (PT 540) 1209.

On the assertion of the Appellant that the trial Court did not properly evaluate the evidence of the parties and that there were contradictions in Respondent evidence and his witnesses, the Respondent stated this was not correct as the allegation was not borne out by the Records. That authorities cited by the Appellant are misplaced and he urged this court to discountenance them. That the issue one be resolved against the Appellant.

The Appellant accused the Learned trial Judge of failing to properly evaluate evidence of repayment of loan he said he granted to the Respondent.

I have carefully perused Exhibits “N” series and I agree with the learned trial judge that there is nothing on them explaining the purpose for which the cheques were made or issued. One of the hands written receipts on page 146 of the record reads thus:
“RECEIPT”
Received from Dr. S. O. Amaechi, MD Christina Hospital, the sum of N50,000.00 (Fifty Thousand Naira only) today, 9th March, 2006,
Sgd.
PATRICK ARIRIGUZO.”

The second hand written receipt in Exhibit “N” series on page 147 of record says:
9/3/2006
On this day around 5.25pm, Dr. Amaechi S. O. of Christina Hospital gave me:
(1) Cash of N50,000.00 in 500 Naira denomination.
(2) Chq. 00090127 for N50,000.00 dated 10/3/2000.
(3) Chq. 00090128 for N50,000.00 dated 20/3/2006.
I went with Steve Ihedoro”

The only way to resolve the riddle is by evaluation of the evidence given by the parties and the assessment of the pieces of evidence proffered before the Learned Trial Judge can only be weighed and accredited probative value by the trial judge who watched the demeanor or countenance of the witnesses. While Appellant is insisting that the cheques were issued by Respondent for repayment of loan granted to Respondent, the Respondent was vehement in his pleading and evidence that the Appellant was given those cheques and a cash of N1,500,000 for payment into Respondent’s account to service the loan the Respondent got from DOMINION BUILDING SOCIETY LIMITED which was later taken over by Diamond Bank PLC that the Appellant tried to convert his monies. The findings of the Learned Trial Judge as quoted under issue 1 by the Appellant is justified and supported by the pleadings and evidence before the Court.

The Learned Trial Judge relied on Exhibit “N” series and “R” series to found in favour of the Respondent on his counter claim. The learned trial judge said on page 127 of the record that:
“On the basis of Exhibit “N” series and “R” series, I accept the evidence of the defendant that he (Defendant) made those payments to the plaintiff for the purpose stated by the Defendant. I also hold that the plaintiff has failed to show that he either paid the proceeds of those cheques into Defendant’s Hospital account neither did he (Plaintiff) refund those that were loaned to him. I believe the evidence of the Defendant on the counter claim”
It is evident that the trial judge relied on the Exhibits tendered and relied upon by both the Appellant and the Respondent and he arrived at a right decision on the evidence before him.
Issue one is therefore resolved against the Appellant.

ISSUE 2
Whether the learned trial judge was right in admitting Exhibits 1, 2, 3, 4, 9 and 10 which were discredited and inadmissible Exhibits and relied on them.

The learned counsel to the Appellant drew the attention of this court to the finding of the Lower Court on page 119 10-20 of the Record on the Exhibits N4 and Exhibits 1, 2 and 3. That the learned trial judge also cast serious doubt on the credibility of Appellant on account of his finding on those Exhibits.

The Appellant’s Learned Counsel submitted that the decision was wrong. That the finding of the Trial Judge on Exhibit 4 is perverse as according to him exhibit 4 contained on page 165 of the record never said Appellant cannot transfer money from his account to a customer’s account without the banks permission. That the said Account from which the money was transferred was not the Appellants personal account but an account in the name of CHIAMAKA EBERECHUKWU shown on page 137 of the record.

That the evidence of DW1 that a staff cannot transfer money to a customer’s account without permission was contradictory. That though the witness said so in his deposition on oath (page 59 of the record) but that under cross-examinated that the transfers are made through tickets written and approved by the Branch Manager. That the money paid by the Appellant as loan was made through a ticket and approved by the Branch Manager before it was paid. He relied on page 138 of the record. Appellant further stated that a ticket cannot be honoured without Bank manager’s approval. That Exhibits 1, 2 and 3 are discredited. That Exhibit 1 is a purported letter terminating Appellant’s appointment for pilfering and sundry financial crises. That Exhibit 2 is the purported query to Appellant and that Exhibit 3 purportedly accuse him of writing off N181,929.00.

That DW3 denied the documents. That it is therefore surprising that the Learned trial Judge relied on such evidence to hold that the Appellant lacks credibility.

That Exhibits 9-10 are photocopies of statements purported to have been made to the police and being public documents within section 109 of the Evidence Act ought to have been certified before they could be tendered and admitted as Exhibits.
That Exhibits 9 and 10 (pages 173-175) of the record were not certified as required by section 111 of the Evidence Act. He relied on the cases of DAGGASH vs. BULAMA (2004) 14 NWLR (Pt.892) 1144 and NDAYAKO VS. MOHAMMED (2006) 17 NWLR (PT.1000) 655.

That the Learned trial Judge had on page 74 expressed his doubt about the certification of the documents yet he admitted them in his judgment. That makers of the documents were not called as witnesses.
That this also made the document worthless as there was no opportunity for Appellant to cross examine on them. He relied on the cases of (1) OMEGA BANK PLC VS O.B.C.H.D (2005) 8 NWLR (PT.928) 547, (2) NBC VS. UBANI (2009) 3 NWLR (PT.1129) 512.

That since the Exhibits were received in breach of Appellant’s right to fair hearing the decision of the Lower Court is a nullity. He relied on the case of FMB NIG LTD VS. ADU (2000) 11 NWLR (PART 673) 309 AT 318 – 319.

That the Learned Trial judge failed to evaluate PW3 is evidence on pages 49-52 of the record as answer to credibility allegations of Respondent rather by reason of Exhibit “Q”. That it is Respondent’s DW1 that has credibility problem.

The Respondent’s learned counsel responded to issue 2 in paragraphs 3.07, 3.08 and 3.09 of his Brief of argument. He stated that Exhibits 1, 2, 3, 4, 9 and 10 were documents tendered by the Respondent. That Ruling on their admissibility was made in the judgment of the Lower Court. That being an interlocutory Ruling, the Appellant requires leave of this court to challenge it. He therefore urged this Court to hold ground two of the appeal as incompetent and that it should be struck out.

His alternative submission is that Respondent is of the view that Exhibits 1, 2, 3, 4, 9 and 10 are admissible. That Exhibits 1, 2 and 3 were documents given to Respondent by the Appellant and that Appellant was given notice to produce the original at paragraph 5 and 6 of the Statement of Defence. That the Appellant failed to produce the originals and that Respondent was therefore entitled to tender and rely on the copies given to him by Appellant. He relied on Sections 89 (a) (i) (ii) and 91 of the Evidence Act 2011. That the trial court was right in evaluating and giving them weight. He relied on the case of UNIVERSITY OF ILORIN VS. ADESINA (2009) ALL FWLR (PT.487) 56 AND AGBABI VS. KABTRU (2010) ALL FWLR (PT.514) 132 AT 154 B-C.

On admissibility of Exhibits 9 and 10, the Respondent stated they were pleaded and sufficiently certified by the police and that the trial Judge was right in overruling the Appellant’s objection. That they were admitted in an effort by the trial Judge to do justice. He relied on the cases of ABUBAKAR & ORS VS. YAR’ADUA & ORS (2008) ALL FWLR (Pt.404) 1409 AT 1450 and DOSUNMU VS. DADA (2003) FWLR (Pt.151) 1944.

The Respondent had contended that though the admissibility of the document were considered in the judgment of the Court and the documents admitted in the course of the Judgment and that as such the Appellant needs leave of court to appeal against the admissibility of the documents.

Respondent is of the view that the decision admitting those documents was interlocutory decision notwithstanding that it came during the delivery of the judgment.

In any event, the Respondent failed to comply with Order 10 Rule 1 of the Court of Appeal Rules, 2011 requiring Respondent to give the Appellant three clear days Notice of the preliminary objection he wants to raise and the grounds for same. The objection of Respondent to ground 2 of the Appellant’s appeal in paragraph 3.07 of Respondent’s Brief of Argument is hereby discountenanced. Furthermore, the complaint of the Appellant concerning the admissibility of the documents in question on is against the decision or judgment of the Lower Court and not an interlocutory Ruling or decision. The said ground of appeal is competent because it is directed against the judgment of the Lower Court. It is noteworthy that when Exhibits 1, 2 and 3 and other documents were sought to be tendered for the Defendant, they were objected to and the trial judge deferred his Ruling till the time of judgment and he actually admitted them in evidence on page 114 of the record in his judgment. The Learned trial Judge deferred his Ruling on 21/6/10 (page 73 of the Record). On the same date, the Respondent tried to tendered documents now marked Exhibits 9 and 10 and they were objected to whereupon the Learned trial Judge now stated that certification of the documents are in doubt and he recorded thus:
“Ruling in the Course”
These are the documents the trial Judge admitted as Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 in the course of his judgment.

The approach of the Learned trial Judge cannot be justified. He ought to have delivered his Ruling on those Exhibits particularly Exhibits 1, 2 and 3 before delivering his judgment so that the parties can make use of the said Exhibits. The documents were not marked as Exhibits before the close of the respective case of the parties in this appeal.

If they were not marked as Exhibits in the course proceeding, it means none of the parties made use of them and they did not testify on them.

PW3, ANTHONY EMEANA who was working at Diamond Mortgages Ltd was on subpoena to produce those documents. He came and he testified without him being confronted with any documents in form of Exhibits 1, 2, 3, 9 and 10. By the adoption of his witness statement on oath all he stated therein became his oral evidence before the court. He denied the existence of all the documents in paragraph 5 and 6 on his witness deposition on oath and he was not cross examined on them. As no one testified on Exhibits 1, 2 and 3 I am in agreement with Appellant that those documents are of no value or weight.

Now on the document marked as Exhibits 9 and 10 in the course of his judgment by the Learned trial Judge of which the Appellant complained that those documents were public documents and were not certified. He also contended that the markers were not called hence the documents cannot be acted upon.

I am of the view that the Appellant is right in his contention. There is nothing on the faces of Exhibits 9 and 10 to show that they were certified in accordance with section 111 of the Evidence Act, 2004 LFN now Section 104 of the Evidence Act, 2011. They are public documents and must be certified to make them admissible. It does not matter they came from the custody of the Police. Since they were not certified as required by law and paid for they are statutorily inadmissible and the trial Judge fell into grave error in admitting them in evidence. See TABIK INVESTMENT LTD & ANOR VS. GUARANTY TRUST BANK PLC (2011) I SCM 201 AT 210 B-G PER MUKHTAR, JSC NOW CJN.
By the provisions of Section 97 (2) (e) of the Evidence Act 2004 LFN (Now Section 89 (c) of Evidence Act 2011) the only secondary admissible in respect of a public document is a certified true copy of the document but no other kind of secondary evidence. See ARAKA vs. EGBUE (2003) 17 NWLR (PART 849) 1.

In the result, issue 2 is hereby resolved in favour of the Appellant.
ISSUE 3
whether the Learned trial Judge was correct when he held that the Appellant’s claim does not have any merit and thus granted the Respondent’s counter claim.

The Learned Counsel to the Appellant S. Amadi Obi, Esq. started off by stating that proof in civil cases is by balance of probabilities or preponderance of evidence and that the trial Court can do this by placing the evidence adduced on imaginary scale of justice. He relied on the cases of BODI vs. AGYO (2003) 16 NWLR (PT 846) 305 AND AJAGUNNA VS. AMUSAN (2003) 9 NWLR (PT.825) 291. The Appellant then made reference to findings of the Learned trial Judge on pages 120 and 121 of the record. He conceded that evaluation of evidence is peculiarly the function and duty of trial court and that where properly assessed the Court of Appeal has no business interfering with evaluation by trial court. He relied on AJIBI VS OLAEWE (2003) 8 NWLR (PART 822) 237 AT 270 – 211 per ADEKEYE, JCA later JSC. That the trial Judge failed to consider the evidence proffered by Appellant and Exhibits N – N4 tendered by him as evidence of repayment of loan. That the explanation given by the Respondent for cheques issued in Appellant’s favour were not adequate. That the decision of the Lower Court was based on unbelievable evidence. He relied on the case of AIJUOKHAIAN VS. STATE (2004) 7 NWLR (PT.873) 565 AT 576 per ACHOLONU, JSC. That this Court should ignore the finding of Lower Court and reappraise the evidence since according to Appellant evidence of repayment of loan is documentary. He relied on the case of LAWA VS. UTC NIG. PLC (2005) 13 NWLR (PT 943) 601. He finally urged this Court to allow the appeal.

On his part, the Respondent referred to the evidence of the Appellant and his witnesses as false and not credible. That PW1 and PW3 told the court that what they were told about the case was by Appellant and what was on subpoena to PW3. That their evidence is hearsay which has no value. He relied on the following cases:
(1) PUNCH NIG. LTD VS. JUMSUM (NIG.) LTD (2011) ALL FWLR (PT.567) 768.
(2) BABA -AHMED VS. ADAMU (2009) ALL FWLR (PT 473) 1257 CA.
(3) OLAFEMI VS. AYO (2009) ALL FWLR (PART 452) 1111.
He relied on the case of MOGAJI vs. ODOFIN (1978) 3 SC 91 per FATAYI -WILIAMS, JSC to contend that the Learned trial Judge was satisfied with the evidenced led by Respondent and correctly evaluated the evidence. He cited EMEJE VS. POSITIVE (2009) ALL FWLR (PT 452) 1056; AJIKANLE vs. YUSUF (2009) ALL FWLR (Pt.475) 1712 AND DAKOLO VS. REWANE-DAKOLO (2011) ALL FWLR (PT.592) 1610

That evidence of BETHRAM IGWE on page 62 of the record was not challenged by Appellant and that the Court was right in accepting it. That the Appellant did not file reply to the Statement of Defence of Respondent. That Appellant is deemed to have admitted facts in it and that the Court was right in accepting them. He relied on the cases of (1) OSHINOWO VS. OSHINOWO (supra) page 1722 C-E. (2) OGBONDA VS. EKE (1998) 10 NWLR (PT 568) 73 AND (3) KWAJA FFA VS. B.O.N. LTD (1999) 1 NWLR (PT.587), 427. That failure of Appellant to file Defence to the Counter Claim amounted to an admission. He cited BUHARI VS. INEC (2009) ALL FWLR (PT.459) 419.

The Learned Counsel to the Respondent concluded his argument under this issue by submitting that the Appellant’s conduct was not justified and his complaint against the judgment of Lower Court is misplaced and frivolous. That Appellant’s case was justifiably dismissed by the trial Court.
The onslaught of Appellant under this issue is that the learned trial Judge was wrong to have held that the Appellant’s claim does not have any merit and went ahead to grant the Respondent’s claim.
The Respondent contended that the Appellant proved nothing and that the appellant failed to file reply to the Statement of Defence. He saw this as admission of paragraphs 7, 8, 9, 10, 12, 15, 16, 17, 18, 20, 22, 23, 24, 25, 27, 28, 29 30 31, 32, 33 and 35 of the statement of Defence and counter claim.

Now Order 18 Rule 1 of the High Court of Imo State (Civil Procedure) Rules 2008 provides:
“1. Where the claimant desires to make a reply, he shall file it within 14 days from the service of the Defence.
2. Where a counter claim is pleaded a reply thereto is called a defence to counter claim and shall be subject to the Rules applicable to defence”
See also ORDER 17 RULE 3 of the said High Court of Imo State (Civil Procedure) Rules.
No meaning is assigned to the word “Reply” in the con of pleadings in the rules of the High Court. I like to have recourse to the definition ascribed to “Reply” in the Black’s Law Dictionary Ninth Edition Page 1326 which is as follows:
“1. Civil Procedure in Federal Practice, the Plaintiff’s response to the Defendant’s Counter Claim for, by Court order, to the Defendant’s or a thirds party’s answer.
2. Common-law pleading. The Plaintiff’s response to the Defendant’s plea or answer. The reply is the Plaintiff’s second pleading and it is followed by the Defendant’s rejoinder.”

Our Apex Court, the Supreme Court of Nigeria has in numerous cases espoused and expounded the real import, function meaning and scope of a Reply as part of pleadings in a civil proceeding. In the case of CHIEF KAFARU OJE & ANOR VS CHIEF GANIYU BABALOLA & ORS (1991) 4 NWLR (PART 185) 267 AT 276 Nnaemeka-Agu J.S.C said:
“It must be noted that a Plaintiff in a reply is not to depart from his case as set out in the statement of claim by setting up there in a new cause of action not raised in the writ and the statement of claim. See Williamson vs London & North West Railway 12 Ch.D 794. He may add some facts in his Reply, but he cannot thereby set up a different case as the Plaintiff’s had done in this case. The proper course open to them was to have amended their Statement of Claim.”

The issue was also dealt with in the case of DR. RASAKI OSHODI & ORS VS. ISA OSENI EFUNMI & ANOR (2000) 13 NWLR 298 at 326 G-H to 327 A-C per Iguh JSC who read the leading judgment had this to say.
The main function of pleadings is to ascertain with as much certainty as possible the various matter there are actually in dispute and those in which there are agreement between the parties and thus to appraise the opposing party in the action of the case the pleader is making so as to avoid any surprise at the hearing and to ascertain the issue or issues in controversy between the parties. In this regard, the parties will be enabled to settle beforehand the evidence it shall adduce at the hearing. Pleadings are closed when parties come to issue. If both the statement of claim and the statement of defence do not bring the parties to issue on all the claims, the plaintiff shall file a reply. Where no counter-claim, as in the present action, is filed, further pleadings by way of a reply to the statement of defence is generally unnecessary if the sole purpose is to deny the averments contained in the defendant’s statement of defence. See Aziz Akeredolu and others VS. Lasisi Akinremi and Others (1989) 3 NWLR (part 108) 164 at 172. However, a reply may be filed to plead relevant additional facts which will make any particular defence pleaded in the statement of defence untenable or negate the application of such defence.
A reply is the defence of the Plaintiff to the counter-claim of the defendant or to the new facts raised by the defendant in his defence to the plaintiff’s statement of claim and shall therefore be filed to an answer the defendant’s averment in his counter-claim or to such new facts that have been raised in the statement of defence. I think it may also be said that as a general rule, where because of the defence filed, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact not arising out of the two previous pleadings, he shall in such circumstances, file a reply as he may not lead evidence of any material facts he had failed to aver in his pleadings.
See Bakare and another vs. Ibrahim (1973) 6 S.C. 205.
(Under lined mine)
The Claimant had pleaded in paragraphs 20-26 of his Statement of Claim thus:
20. This was the state of the plaintiff’s account with the bank when the defendant upon information by the plaintiff of his account requested the plaintiff to transfer N1,360,000 into his account to offset his debt with the Bank.
21. The Plaintiff agreed and transferred N1,360,000.00 into the defendant’s privates account with the bank vide a letter dated 27/12/04 a copy of the letter shall be relied on at the trial.
22. The defendant on the same date of the transfer from the Plaintiff’s account to his account wrote a cheque in favour of his corporate account number 537101 for N1,360,000.00 to offset the N1,337,438.27 he owed the bank, the defendant is here to put on notice to produce the original statement of account of Christiana Hospital and Maternity Ltd account covering 11/10/04.
23. Upon the liquidation of the said loan by the defendant he requested for release of his title documents which he used to secure the loan and the bank released them to him.
24. The defendant defaulted in paying back the plaintiff’s loan within one month, but however started paying back the loan. He paid back N500,000.00 as follows:-
i. Union Bank cheque 30/3/05       N200,000.00
ii. Union Bank cheque 10/6/05       N50,000.00
iii. Union Bank cheque 13/12/05   N100,000.00
iv. Union Bank cheque 10/3/05       N50,000.00
v. Union Bank cheque  20/3/05       N50,000.00
vi. cash on 20/3/06                    N500,000.00
The Plaintiff shall rely on photocopies of the Union Bank cheques, letter of acknowledgement of payment of the N50,000.00 cash, the defendant is put on notice to produce the original letter of acknowledgement.
25. The defendant has since then refused to pay the balance of N860,000 wherein the plaintiff wrote the defendant vide a letter dated 27/11/06 demanding for payment till date the defendant has refused to pay or reply to the said letter, the defendant is here to put on notice to produce the original at the trial.
26. The Plaintiff as a result of nonpayment of his money by the defendant lost interest accruable on his money up to N530,753.
Particulars.
(a) Money owed the plaintiff by the defendant as at 20/3/06    N860,000
(b) Bank interest lost on N1,360,000 from Jan. 2005 to March 05
90 days at 16% per annum                   N50,301.37
(c) Bank interest lost on N1,160,000 from April 05 to June 05
90 days at 16% per annum                    N42,904.11
(d) Bank interest lost on N1,110,000 from July 05 – Dec 05
180 days at 16% per annum
(e) Bank interest lost on N1,010,000 from Jan. 06 to March 06
90 days at 16% per annum                    N37,356.16
(f) Bank interest lost on 860,000 from April 06 to Sept 08
900 days at 16% per annum                 N318,082.18
Total:               N1,390,753.41

In response to the above pleaded case of the claimant Appellant the Respondent as Defendant at the Lower Court pleaded in paragraphs 20-29 of the Statement of Defence thus:
“20. Defendant denies paragraph 19 of the statement of claim and states that the claimant in order to cover up his fraudulent conversion and misappropriation of the monies received from defendant on behalf of the bank, hurriedly transferred the sum of N1,360,000in restitution of the money claimant received from the defendant on behalf of the bank and criminally converted to his own use.
21. Defendant denies paragraph 24 of the Statement of Claim and states that there was no loan agreement oral or written between him and the claimant. The following Union bank cheques dated 30/3/05 10/6/05; and 13/12/05 for the following sum of N200,000; N50,000; and N100,000 were cheques issued by defendant to claimant for claimant to cash and pay the cash equivalent into defendant Hospital account at Dominion Building Society Ltd Bank; since Dominion Building Society Ltd bank was no longer going for clearing at Central Bank.
22. The cash given to the claimant on 9/3/2006 which he duly acknowledged and the cheque dated 10/3/2006 for 50,000 each were money which the defendant lent the claimant as friendly interest free loan in the presence of witnesses. One Mr. Bafthram Igwe witnessed the day the claimant asked for the loan to enable him solve pressing financial problems. There was no date agree for the repayment of the loan. The claimant has instead resorted to blackmail instead of repaying the loan. The defendant pleads and may rely on the photocopy and stamp of the said cheques as well as the copy of the documents dated 9/3/2006 by which he claimant acknowledge receipt of the sum of 50,000 (Fifty thousand Naira) from the defendant.
23. On or about the 21st day of November, 2004 the defendant invited the claimant and two other officers of the Bank to his office. The aim of the invitation was to enable the officers collect the sum of 1,500,000 to enable defendant liquidate the balance of the loan granted the Hospital.
24. The claimant came alone and when asked about his colleagues who were to come along with him he said that he decided to come since the purpose was just to get money and pay into the defendant Hospital account. Claimant further said he decided to come alone, since his colleagues in the Bank were not ready to come along with claimant to defendant Hospital at Egbu.
25. The defendant then gave the claimant the sum of 1,500,000.00 put in a big bag which he recounted and confirmed to be correct in the presence of Mr. Barthram Igwe and Joe Ekeagwu who are staff of the Hospital.
26. After a couple of days when the defendant did not get any feedback from the claimant the defendant enquired from Tina Odiase, Nkiru Ufomadu and Joyce Emezie who were John Onyeneke Senior Officials of the bank whether the Claimant actually paid the money into the defendant corporate account it was discovered that he never did.
27. Some of the official of the Bank aforementioned confronted the claimant on this and claimant apologized for his “lapses” and pleaded that the matter should not be reported to the manager, Mrs. Tina Odiase or to the defendant.
28. The claimant confessed that he used the money the defendant gave him to open an account at the Orlu Branch of the Bank.
29. The claimant promised to transfer the money from his said account at Orlu branch to the defendant’s corporate account. He accordingly raised a ticket and transferred the sum of 1,360,000 from the account into the defendant’s personal account and retained the sum of 140,000 till date.”

The Respondent then followed it up by the counter claim already reproduced earlier in this judgment. It is quite amazing that for reasons clearly obvious to the Appellant he did not deem it fit to file any Reply to the Statement of Defence filed by Respondent even in the face of allegation of embezzlement and stealing contained in the said Statement of Defence against the Appellant. In situation such as this, it behoves the Appellant, the claimant in this action on appeal to plead material facts in a Reply to the statement of Defence to rebut or debunk the barefaced allegation of embezzlement or conversion of money belonging to Respondent contained in the statement of Defence. The Appellant thus opened himself up to reasonable inference that the allegations made by Respondent in his statement of Defence against the appellant are true. He ought to have replied to the very situation created by the Defence against him. See GABRIEL IWUOHA & ANOR vs NIPOST & ANOR (2003) 8 NWLR (PART 822) 308 at 341 per NIKE TOBI JSC. His Lordship also made it clear in another case that where it appears that a Defendant puts forth a formidable Defence in his statement of Defence it is incumbent upon the claimant to file a reply to challenge such a Defence so that the new facts in a statement of Defence would not be taken to have been
admitted by the Claimant.
See CHIEF RAYMOND D. OGOLO & ORS VS. CHIEF P. D. FABARA & ORS (2003) 11 NWLR (PART 831) 231 at 265 G-H to 266 A-B per Tobi JSC who held:
The problem I have is that there is that there is no averment in any of the paragraphs of both statements of claim on the involvement of the Plaintiff/Respondents in the selections, proclamation and installation of any of the Amanyanabos right from Chief Jack Jaja Anie People to the last one, Chief Dr. Douglas Jaja. And in this regard, general averments of the type of paragraphs 12 and 13 do not meet the requirements in such a very impoftant aspect of the matter, particularly in the light of the averments in paragraphs 2, 9, 10, 11, 12 and 13 of the amended statement of Defence. The Defendants/Appellants presented a very detailed and formidable case in their amended Statement of defence and I expected the Plaintiffs’/Respondents to file a reply, in respect of the new issues raised in the amended Statement of defence but that was not done. See Bakare Vs Ibrahim (1973) 6 SC 205; Akeredolu vs Akinremi (1989) 3 NWLR (Part 108) 164; Lion of Africa Insurance Vs Fisayo (1986) 4 NWLR (part 37) 674; Adelaja Vs Oguntayo (2001) 6 NWLR (part 710) 593. It is the law that a fact not denied is deemed to be admitted. See Adeleke Vs Aserifa (1986) 3 NWLR Part 30) 575; Nnonmye vs. Anyichie (1989) 2 NWLR (PART 101) 110.”

And in the case of ROBERT ENAJITE UGHUTEVBE VS DR. OWODIKAN SHONOWO & ANOR (2004) 16 NWLR (PART 899) 300 at 324 A-B the Supreme Court per Ejiwunmi JSC said
“Where as in this case, a defendant sought to justify himself or his action by pleading that a set of facts existed different from that pleaded by the Plaintiff it is not only right but proper for the Plaintiff to set up such facts as would show the lie in the action of the defendant. It follows that I must hold that the Court below was right having regard to all I have said above that the Amended Reply particularly paragraphs 4, 5, 6, and 7 thereof filed by the Respondent in no way breached the provisions of Order 16 Rules 12 of the High Court of Lagos State (Civil Procedure) Rules 1972.’
I therefore agree with the Respondent that failure on the part of the Appellant to file a Reply to Respondent defence is fatal to the Appellant’s case.
More importantly, the Appellant also left himself naked and open to finding of admission of the counter claim against him. This is because he did not file any defence to the counter claim of the Respondent.

It is true there may be a few occasions when defence to a counter claim may not be necessary but by the facts pleaded in this case, this is not one of such occasions. The Appellant must be taken to have admitted the counter claim of the Respondent and so the Lower Court’s findings are not perversed. See MAOBISON INTER-LINK ASSOCIATES LTD VS. U.T.C. (NIGERIA) PLC (2013) 10 SCM 112 at 120 1 to 121 A – E where the Supreme Court per ARIWOOLA, JSC held thus:
“Generally, a counter claim is a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim. See: Black’s Law Dictionary, Ninth Edition page 402. In other words, a counter claim is a claim by the defendant against the plaintiff in the same proceedings. It is regarded as an independent and separate action in which the defendant/counter claimant is in the position of the plaintiff and therefore has the burden of proving the counter claim to be entitled to judgment thereon.
On the necessity or otherwise of a reply to counter claim, it is true that it is necessary for a plaintiff to file and serve defence to a counter claim to join issues with the counter claimant. If the plaintiff fails to file a defence to properly traverse the material averment in the counter claim, then there will be no issues joined between the parties on the subject matter of the counter claim. And the allegation contained in the counter claim will be regarded as admitted. See Nigerian Housing Development Society Limited vs. Yaya Mumuni (1972) 2 SC 57 at 58-86.
Ordinarily, failure of a plaintiff to file a defence to a counter claim may not be damaging or disastrous if he succeeds in his claim. The success may afterall render useless the counter claim, depending on the nature of the counter claim. But where he fails in his claim and he had filed no defence to the counter claim, the defendant’s counter claim will be taken as uncontroverted. See Ogbonna vs. A.G. Imo State (1992) 1 NWLR Pt.647 at 698,
I am therefore of the solemn view that the findings and conclusions of the Lower Court cannot be faulted.

It has not been established in this appeal that this is a proper case for this court to interfere. Notwithstanding that issue two was resolved in favour of the Appellant, the other documents and oral evidence before the Lower Court are sufficient to sustain the judgment of the Lower Court. The conclusions of the learned trial Judge are amply supported by the said evidence.

Consequently, the appeal of the Appellant lacks merit and ought to be dismissed. The Appellant’s appeal is hereby dismissed in toto. The judgment of the trial court delivered on 29th day of July, 2011 by NONYE OKORONKWO J. now JCA is hereby confirmed.

The Appellant is to pay costs assessed at N30,000.00 to the Respondent.

UWANI MUSA ABBA AJI, J.C.A.: I have had the advantage of reading before now the lead judgment of my learned brother, P. O. Ige, JCA just delivered.

I entirely agree with the reasoning and the conclusion reached by my learned brother that the appeal lacks merit and deserves to be dismissed. Accordingly, the appeal is hereby dismissed by me. The judgment of the Lower Court delivered on the 29th day of July, 2011 is hereby affirmed.

I endorse the consequential orders made in the lead judgment including orders as to costs.

PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA. I have no hesitation in agreeing with the reasonings and conclusion contained in the lead judgment. I adopt them as mine that this appeal lacks merit and ought to be dismissed. It is hereby dismissed in its entirety and the judgment of the Lower Court of the 29th July 2011 by Nonye Okoronkwo J. now JCA, is hereby affirmed. I abide by His Lordship’s order as to costs.

Appearances

V. E. Ukaegbu Esq.For Appellant

AND

M. O. Nlemedim Esq.For Respondent