INTERCONTINENTAL BANK PLC v. DAYEKH BROTHERS LIMITED
(2014)LCN/7324(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of June, 2014
CA/K/321/2012
RATIO
EVIDENCE: PRESUMPTION; WHETHER THE COURT MAY PRESCRIBE THE EXISTENCE OF A CERTAIN FACT UNDER THE EVIDENCE ACT
In this vein, I am of the opinion that the failure to show in details how the sum of debit N9,575,168.33 was arrived at is fatal to the counter claim of the defendant/counter claimant. I am buttressed in my finding by Section 167(d) of the Evidence Act 2011. It provides that the Court may prescribe the existence of a certain fact. It reads as follows;
The Court may prescribe the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events human conduct and public and private business, in their relationship to the facts of the particulars case and in particular the Court may presume that;
(a)
(b)
(c)
(d) Evidence which could be and is not produced would if produced be unfavourable to the person who withholds it: and in this vain this Court is aware that nowadays statement of accounts are these day produced by computer print out as we are in the age of information technology. Whey then did the defendant decide to produce Exhibits 9, 9A and 9B which appear to be statement of account through the old analogue method of mechanical production only means they are trying to hide certain facts of their relationship with the Plaintiff. In this respect I have concluded the lack of producing a computer print out of the statement of account similar to Exhibits 3, 3A and 3B would mean if they had produce same would be dis-favourable to them in line the above quoted section 167 (d) of the Evidence Act 2011.” per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
INTERCONTINENTAL BANK PLC
(NOW ACCESS BANK PLC) Appellant(s)
AND
DAYEKH BROTHERS LIMITED Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): A credit facility was initially granted to the Respondent by the Appellant. Then, on 31/1/05 it was renewed vide a letter dated the same day. However, the Respondent averred it later discovered that as at 31/5/06, it was overcharged and wrongly debited by the Appellant to the tune of N1,665,105.3. As a result, it instituted an action against the Appellant seeking the following:
“1. A Declaration that the Plaintiff’s account with the Murtala Mohammed Way, Kano Branch of the Defendant has been illegally overcharged and wrongfully debited.
2. A Declaration that the Plaintiff is no longer indebted to the Defendant having regards to the total amount of the illegal overcharges which are wrongfully debited into the Plaintiffs account by the Defendant.
3. A Mandatory order directing the Defendant to refund the total sum of N1,665,105.31 being the total sum wrongly debited into the Plaintiffs account by way of illegal overcharges committed by the Defendant.
4. An Order of injunction restraining the Defendant either by itself or through any of its servants, employees, agents or privies or any person howsoever described from demanding from the Plaintiff any sum of money on the basics of the illegally overcharged account.
5. An Order of injunction restraining the Defendant or its servants, employees, agents, privies or any person howsoever described from taking any steps in any manner whatsoever towards the exercise of any of the powers conferred on the Defendant in the deed of floating debenture, Equipment Lease Agreement, and Personal Guarantee of the Plaintiff s Directors or any other documents securing the facilities granted the Plaintiff and or in any way enforce any of the provisions therein or enforce any other agreements/instruments executed in connection with the transaction subject matter of this suit.
6. The cost of this suit. ”
At the conclusion of the hearing, the learned trial judge entered judgment in favour of the Respondent against the Defendant in the following terms:
“1. I declare that the Plaintiffs account with Murtala Mohammed Way Kano Branch of the Defendant to have been illegally overcharged and debited with wrongful management fee, overcharges COT and VAT overcharges.
2. I declare that the Plaintiff is no longer indebted to the Defendant having regards to the total amount of the illegal overcharges which are wrongfully debited into the Plaintiff account by the Defendant.
3. I hereby issue out a mandatory order directing the Defendant to refund the total sum of N1,329,546.97k being the total sum wrongfully debited into the Plaintiff account by way of illegal overcharges committed by the Defendant.
4. An order of injunction is hereby granted restraining the Defendant either by itself or through any of its servants, employees, agents or privies or any person howsoever described from demanding from the Plaintiff any sum of money on the basis of illegally overcharged account of the Plaintiff.
5. An order of injunction is granted to the Plaintiff restraining the Defendant or its servants, employees, agents, privies or any person howsoever described from taking any steps in any manner whatsoever towards the exercise of any powers conferred on the Defendant in the deed of floating debenture, Equipment leasing agreement and personal guarantee of the Plaintiffs directors or any other documents securing the facilities granted the Plaintiff and or in any way enforce any of the provisions therein or enforce any other agreement/instruments executed in connection with the transactions, the subject matter of this action.
6. Parties/counsels are hereby ordered to settle their own cost of this case. That is no cost is granted.
The Appellant was perplexed by the pronouncement that it filed an appeal on 3/7/12 by the Notice of Appeal dated the same day, which it based on two grounds of appeal. Consequent thereto, the parties filed their respective Briefs of Argument.
The Appellant via his Counsel, Sir Steve Adehi, presented two issues for determination thus:
“1. Whether the Respondent proved its entitlement to its claim.
2. Whether the Appellant proved its Counter Claim.”
The Respondent for its part submitted two issues for determination of this Court, they are:
“1. Whether the trial Court was not justified in Law to have given judgment in favour of the Respondent having regards to the evidence adduced on record.
2. Whether the trial Court was not justified when it dismissed the Appellant’s Counter Claim based on the documentary evidence produced at the trial.”
It was submitted by learned Counsel for the Appellant, Sir Steve Adehi, that the pivot of the Respondent’s case at the Lower Court was Exhibit 1, the Financial Report produced by P.W.1 to show that the Respondent’s account with the Appellant was overcharged. It was the Respondent’s case that he invited PW1 to analyse its transaction with the Respondent at the end of which the report produced showed that the Appellant had overcharged the Respondent’s account to the tune of N1.6m.
He referred to the Cross Examination of PW1 where he admitted he prepared the report based on documents given to him by the Respondent. He also stated that the report was prepared on the basis of the three facilities the Respondent was enjoying from the Appellant “Exhibits 2, 2A and 2B.” He accepted under cross examination that if however, the facilities obtained by the Respondent were more than three, then the conclusion reached in Exhibit 1 would definitely be different. He further referred to the evidence of DW1 and “Exhibits 2, 2A, 2B, 4 and 5” and contended that the Appellant was able to show through the said “Exhibits that it advanced five facilities to the Respondent. He alleged that the Respondent concealed the existence of the two other facilities from the PW1 and made him proceed on the assumption that only three facilities were advanced to him. PW1 also testified that he prepared the report based on documents given to him by the Respondent and that the Appellant did make any imput or contribution to the report.
It was contended that having executed the acceptance of the facility and utilized the same, the Plaintiff cannot be heard complaining that the charges were excessive and illegal.
Counsel relied on NIDB vs. Olalomi Industries Limited (2002) 5 NWLR part 761 page 532 at 548 -549 paragraphs F-A; ARE vs. Salihu (2006) ALL FWLR Part 327 page 574 at 592 paragraphs D-F; and Batalha vs. West Construction Co. Ltd (2001) 18 NWLR Part 744 page 95, and submitted that the Respondent did not prove its entitlement to its claim and the judgment of the Lower Court ought to be set aside.
With regard to issue No. 2, learned Counsel stressed the Appellant, led evidence and established that it advanced various facilities to the Respondent via “Exhibits 6, 7, 8, 9, 9A and 9B, it was the non-servicing of the account by the Respondent that raised the indebtedness, to N9,547,907.50k.
He reiterated that the conclusion reached by PW1 in arriving at the figure of N1.6m was wrong since the Appellant was able to establish that the Respondent was advanced five facilities and not three facilities on which the report was based. He, also referred to PW2’s evidence in which he admitted that at the time the report was his account was over charged by N1.6m. He emphasized that the balance on the account at that stage was N2.9m. It therefore,follows that the Respondent would not contest the sum of N1.3m, which would be the balance of N1.6M is subtracted from the said N2.9M. It is a clear admission.
He contended that the trial Court misdirected itself in law when it failed or neglected to enter judgment in the face of that clear admission and, he urged this Court to resolve issue No. 2 in favour of the Appellant.
Learned Counsel referred to Nabegu Nigeria Company Limited vs. Unity Bank Plc (2003) ALL FWLR Part 698 page 871.
Learned Counsel for the Respondent, Abdulkarim Kabiru Maude Esq, submitted that the trial Court was justified in giving judgment in favour of the Respondent having regards to the findings of the trial Court based on the evidence adduced at the trial. He referred to the trial Court’s comment at pages 206 or 204 of the record and submitted that the findings therein are specific findings which have not been appealed against, meaning, they still subsists. He further submitted that the Respondent had been able to prove that its account was illegally overcharged and wrongfully debited as claimed per its statement of claim contained at pages 58-60 of the record.
It was argued that the two cases cited by the Appellant’s counsel in respect of the Appellant’s issue No.1 are not applicable and are irrelevant since they were not decided on the basis that the Appellant, as in this case, overcharged the Respondent’s account illegally contrary to the Offer Letters in Exhibits 2,2A and 2B admitted in evidence. He urged that the Appellant’s Counsel argument therein should not be countenanced.
On issue No. 2, it was strongly argued that the Appellant failed to lead evidence in proof of its Counter-Claim of N9,547,907.50k as rightly found by the trial Court. He made reference to the Respondent’s Reply pleading to the counter-claim of the Appellant dated 14/6/2010 shown at pages 94-95 of the record. He submitted that the Appellant had the burden of proof that the Respondent was indebted to it to the tune of N9,547.907.50k. The Respondent further contended that with the trial court’s finding that the Appellant charged and debited the Respondent’s account with charges contrary to the Offer Letters of the facilities in Exhibit 2,2A and 28, the purported statements of account in Exhibits 9, 9A and 9B purportedly showing the alleged balance of N9,547,907.50k relied upon by the Appellant are inaccurate to fix the Respondent with the said liability or any sum at all. It was argued that Exhibits 9, 9A and 9B were merely tendered by D.W.1 without any supporting oral evidence on it to explain law the alleged indebtedness of the said sum was arrived at by the Appellant. Counsel relied on U.B.A Plc vs. Gbadebo (2003) FWLR Part 186 page 644 at 653 paragraphs C – D; and Bilante Int. Ltd vs. N.D.T.C (2011) ALL FWLR Part 598 page 804 at 819 -820 paragraphs H-A and D-G . He stressed that DW1, through whom the said Exhibits were tendered did not refer to them in his evidence to show how the figure was arrived at. He then urged this Court to hold that the Appellant’s counter-claim has not been proved, and that this appeal be dismissed.
The two issues submitted for determination by the Appellant are “(a)whether the Respondent proved its entitlement to its claimed; and (b) whether the Appellant proved its counter claim. They could conveniently be dealt with together, and the materials for their consideration can only be garnered from the testimonies of the witnesses and the documentary evidence tendered before the Court.
With regard to the Respondent’s case PW1.,Olusegun Oderinde who tendered Exhibit 1 said the computations therein were based on the three facilities granted to the Respondent. He was not informed that other facilities were given to the Respondent in April and July 2005 respectively. It was only three accounts he reviewed. He gave detailed account of the Respondent’s transactions with the Appellant at pages 7-11 of the record of appeal.
P.W.2, Nassai Dayek explained how the Respondent firstly obtained N5 million loan to buy equipment and agreed on the repayment terms of N213,000 monthly. After about four or five months later, the Respondent applied for a second loan of N5 million to buy a generator and that was to be repaid on the term of over N200,000 monthly, then totally about N400,000.00 a month. Along the line he discovered that they were being charged abnormally. He indentified the Offer Letters for the three facilities as Exhibits 2, 2A and 2B. He complained to the Appellant and nothing was done, then the Respondent engaged the service of Mr. Fatai. He confirmed under cross-examination that three were only three facilities granted to the Respondent and they were charged management fees.
It is clear in P.W.1’s evidence that graphic details of the illegal or over charges were given by D.W.1 to prove the assertions of the Respondent.
Then coming to the counter claim of the Appellant, D.W.1., one Onyekwulu Henry the Branch Head of the Appellant. He claimed that the Respondent’s request were about five facilities. He testified identified Exhibits, 1, 2 and 3 as some of the facilities he mentioned. He tendered Exhibits 4, 5, 6, 7 and 8. His evidence at pages 34-37 of the record of appeal read as follows:
“I have been working in the banking industry for 9 years I have been working with the Defendant for 5 years, I have worked with Murtala Mohammed Branch way Kano and several other Branches of the Defendant. I worked at Murtala Mohd way branch from 2005 to 2008. Yes then in 2004 when the Plaintiff was granted the facility I was not working at the Murtala Mohd way branch of the Defendant. Yes, between 2004 to 2005 I had nothing to do with the account of the Defendant. No, in 2006 when I started working at the Murtala Mohd way Branch I was not the account officer of the Defendant account. The account officer of the Defendant in 2006 was Elijah Akintoye then. No all my testimony before this Court was not based on information hold to me before 2006 as well as documents are then for any officer to go through all this information of the customer is therefore you to read through and take over the customer. Shown Exhibit 2, 2A and 2B. Yes the Plaintiff were given several facilities apart from these exhibit. There is still another facility that was given to the Plaintiff apart from exhibit 2, 2A and 2B and the facilities given are documented by an offer letter so also the other loan facility has an offer letter.
Yes the facility in exhibit 2, 2A and 2B do have turnover period when they are due in exhibit 2. The facility expired in February 2007 exhibit 2A expired in August 2005 and exhibit 2B. The facility expired is a 90 days facility so it expired in April, 2005. Yes the bank was still charging interest after the expiration of the facility as interest will be charged if the customer did not pay off the facility. Yes Exhibit 2, 2A and 2B are the operation of the guidelines which form the basis of the loan facility. Yes any money that is debited to the customer outside the no provision of the exhibit 2, 2A and 2B will be wrongful.
I do not agree that my bank had constantly charged management fee for every month from October to December, contrary to what is contained in Exhibit 2, 2A and 2B, according to the offer letter given to the customer if the facility is given is not paid within the tenure of that facility penal interest would be charged which is 1% which is fine the bank also has the right to amend the terms of the facility. And full right of the fine interest would depend on the concession. These 3 debit were computed for 2005 (Oct, Nov, Dec) in Exhibit 2 the facility would expire in 2007 we were charging the management fee of N80,000 N50.000 and N100.000 based on the facility that expired in 2005 per exhibit 2B. Yes. from Exhibit 2 and 2A the Bank is supposed to be charging management fee after every 3 months i.e. every quarter.
Yes in Exhibit 2B the Defendant supposed to charge 4% flat rate of the management fee during the whole tenure of the facility, shown Exhibit 9 yes I did tender Exhibit 9 in my evidence in chief, yes on October, 4th we did charge management fee of N80,000 on November, 2nd we did charge also N80,000 management fee.
Yes on 4th of November, we did also charge management fee of N50,000. Now I say that I have not seen the management fee of N80,000 on 2nd November, in Exhibit 9 on the entry of December, yes there is also a management fee of N100,000 on Exhibit 9.
It is not true that all the facilities mentioned in exhibit 2, 2A and 2B we were charging interest on – on the same one account operated by the Plaintiff at Murtala Mohd way branch yes all the management fees described in exhibit 9 are all penalty charges. The first management fee of 4th October, of N80,000 was calculated on the basis of 1% of N769.039.39 the 1% of same is N80,000 that is 1% of the N760.039.39 is N80.000 per exhibit 9 yes on 14th December there is management fee of N50.000 shown in exhibit 9A 5/1 management fee of N80,000 was rightfully charged. Yes the management fee is charged on every month in Exhibit 9. I agree it will be so charged until the customer settles the account/facility.
I don’t know anything called loan partial liquidation in the banking practice/sector shown exhibit 9 (2nd page) last entry it means loan partial liquidation and does not mean loans partial liquidation. Partial liquidation means that part of the loan has been paid by the customer, shown the entry on 27th October, in Exhibit 9 (N213,307.07) yes the plaintiff partially paid part of the same loan. It is not correct that the figure rose. I have not seen the term loan account counsel put it to the witness that the term loan account is not before this Court.
Witness is shown Exhibit 9B there is a loan drop of N616,153.17 loan partial liquidation this encloses the debit entry of the settlement account which the customer did not pay thirty reducing the entry of the term loan. I have seen the result of the consultant Exhibit 1 in the bank before I came to give evidence, it was given to me to check at the bank, I did not react to the customer but I saw the anomaly.” (Underlined for emphasized)
Then the trial Court at pages 208 – 209 of the record made the following findings:
“In a claim for recovery of a loan by a bank against its customers, the success of the claim depends on the accuracy of the account kept between the parties. That the defendant having subjected the Plaintiffs account to wrongful charges contrary to the letter of offer, Exhibit 2, 2A and 2B, the Plaintiffs account kept by the defendant cannot be accurate. The gist of the defendant/counter claimants case is base on exhibits 9, 9A and 9B. They cover the period from 27/12/2006 to 31/12/2007, the period the Plaintiff took additional loan facility different from the facilities covered by the Exhibits 2, 2A and 2B and also the period which was not carted in Exhibit 1, the consultant/any report of PW1. In this vain though the sum of debits is stated to be N9,575,108.33 which approximate the counter claim, some do not show in details how the defendant arrived at the stated debit sum.
The defendant should have shown in greater details the computation of the balance. In other words as per Exhibit 3, 3A and 3B which shown in details management fee, commission on turnover interest charges and VAT, same details should have been reflected in Exhibits 9, 9A and 9B. Indeed the letter Exhibits 9, 9A & 9B appear to be statement of accounts just like Exhibits 3, 3A and 3B.
In this vein, I am of the opinion that the failure to show in details how the sum of debit N9,575,168.33 was arrived at is fatal to the counter claim of the defendant/counter claimant. I am buttressed in my finding by Section 167(d) of the Evidence Act 2011. It provides that the Court may prescribe the existence of a certain fact. It reads as follows;
The Court may prescribe the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events human conduct and public and private business, in their relationship to the facts of the particulars case and in particular the Court may presume that;
(a)
(b)
(c)
(d) Evidence which could be and is not produced would if produced be unfavourable to the person who withholds it: and in this vain this Court is aware that nowadays statement of accounts are these day produced by computer print out as we are in the age of information technology. Whey then did the defendant decide to produce Exhibits 9, 9A and 9B which appear to be statement of account through the old analogue method of mechanical production only means they are trying to hide certain facts of their relationship with the Plaintiff. In this respect I have concluded the lack of producing a computer print out of the statement of account similar to Exhibits 3, 3A and 3B would mean if they had produce same would be dis-favourable to them in line the above quoted section 167 (d) of the Evidence Act 2011.”
The trial Court thoroughly analysed the evidence presented before it and there was no better way it have done so. D.W.1 admitted that there was an anomaly regarding the charges made by the Appellant as observed in Exhibit 1.
D.W.1 equally accepted that the said N9,547,907.80k it counter-claimed was made up of charges, some of which he admitted were valid. By the evaluation made by the trial Court, the Respondent was able to prove the over-charges via Exhibit 1 and the detailed evidence of P.W.1. He stated that the Appellant charged management fee twice every quarter instead of once. The Respondent was charged N80,000 instead of N50,000 on 4/10/04. See page 10 of the record of appeal. As rightly observed by the trial Court there was no proof as to how the Respondent arrived at the figure of N9,547,907.80k as the amount outstanding to the debit of the Respondent’s account with the Appellant as at 31/10/07 and made up of principal sum and agreed interests.
The law is that he who asserts must prove on the preponderance of evidence. I am in agreement with the trial Court that the Respondent discharged the onus placed upon it by the law with regard to proof of illegal or overcharges as alleged. It was not debunked. Also it was not proved that findings of P.W.1 in Exhibit and his conclusion therein were not based only on three facilities. It was not proved that the charges were based on the alleged five facilities.
Accordingly, the two issues raised for determination by the Appellant are hereby resolved in favour of the Respondent. This appeal is hereby dismissed and the judgment of the Lower Court is hereby affirmed. I make no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the judgment pronounced by my learned brother, Orji – Abadua, J.C.A., which I adopt as my judgment in the appeal.
TIJJANI ABUBAKAR, J.C.A.: I read the lead judgment prepared and rendered by my learned brother ORJI-ABADUA, JCA. I am in complete agreement with the reasoning and conclusion which I adopt as mine. I adopt the judgment as my own in this appeal.
Appearances
Steve Adehi Esq.For Appellant
AND
Bashir Yusuf Mohammed Esq; with Abdulkarim Kabiru Maude Esq.For Respondent
