CHROME AIR SERVICES LIMITED & ORS v. FIDELITY BANK PLC (2014)

CHROME AIR SERVICES LIMITED & ORS v. FIDELITY BANK PLC

(2014)LCN/7550(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of November, 2014

CA/A/203/2012

RATIO

EVIDENCE: BURDEN OF PROOF; WHETHER THE PLAINTIFF CAN SHIFT THE BURDEN OF DISPROVING THE SIGNATURES ON THE TRIAL COURT

The appellants it appears not only shirk but shifted responsibility completely to the lower court; that should not be so. It is elementary that he who asserts must prove; this court had course to hold so in OSEMWENKHA V PETER OSEMWENKA (2012) LPELR 9580 (CA).
The onus to disprove the signatures disputed in Exhibits O and Q clearly rested on the appellants who disputed same; they did not succeed in discharging the onus. The appellants cannot just throw it at the court at the address stage. In ABUBAKAR v. YAR’ADUA (2009) All FWLR (Pt.457) 1 the Supreme Court held, while considering S. 108 (1) & (2) (now S. 101 (1 & 2) of the Evidence Act 2011
“…above is not to turn over to the court the duty of comparing handwriting or signature in a civil case, the parties to the dispute themselves ought first to have called evidence to show that a person signed or did not sign the signature in dispute. The court cannot without such evidence volunteer to find evidence for one of the parties as to who had signed the disputed signature.”
This decision clearly is not in dispute with TOMTEC NIG LTD V. FEDERAL HOUSING AUTHORITY supra cited by the Appellants. Learned counsel to the Appellants contends this court is in a good position to examine the documents, but that begs the question; especially when the same appellant did not discharge the onus placed on them at the lower court. per. MOHAMMED MUSTAPHA, J.C.A.

JUSTICES:

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

1. CHROME AIR SERVICES LIMITED
2. CHROME OIL SERVICES LIMITED
3. SIR EMEKA OFFOR – Appellant(s)

AND

FIDELITY BANK PLC – Respondent(s)

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment):

FACTS OF THE CASE:
Sometime in 1999 the 1st appellant applied for temporary overdraft facility from the then FSB International Bank Plc. for the sum of N78, 000,000; the respondent subsequently acquired the FSB; subject to a guarantee by the 3rd appellant, who deposited his certificate of occupancy No. FCT/ABU/CR.296 over Plot No.756 Maitama A5 District, Abuja and certificate of occupancy No. FCT/ABU/NG.488 over plot 71, 3A Garki 11 District, Abuja.

Failing to repay the loan FIDELITY BANK PLC, the defendant/respondent instituted an action against Chrome Air Services and Chrome Oil Services, the 1st and 2nd appellants respectively along with three other defendants on the 4th of October, 2004 in suit No. FCT/HC/CV/1123/2004 before the Federal Capital Territory High Court for N67, 099.169.09 as debt.

While this was going the Chrome Air Services Ltd, the Plaintiff/Appellant entered into a Memorandum of settlement with FSB International Bank Plc. The Defendant/Respondent for the payment of N50,000,000 as full and final payment (Exhibit C Before The Trial court). The Appellants made the agreed payments and suit No. FCT/HC/CV/1123/24 was struck out thereafter for abandonment, Exhibit D.

The respondent claims Chrome Oil Services Ltd, the 2nd Appellant became liable to Fidelity Bank plc, counter claimant to pay S1,000,000 in a separate transaction, which the 3rd Appellant guaranteed by depositing an additional certificate of occupancy No. FCT/ABU/MISC-5178 in respect of plot No. 505 Cadastral Zone AO Abuja; the Appellants contend the Respondent brought this up only because they demanded for the release of the title documents, in spite of the fact that this claim is relief number (ii) in Suit No. FCV/HC/CV/1123/2004.

The trial court entered judgment for the respondent for S1,000,000, but also ordered the respondent to release the Appellants, Certificate of Occupancy plus N500,000 damages.

This appeal is against this judgment, wherein the appellants filed four grounds of appeal from which three issues were distilled for determination by this court. The issues are:

1. Whether the lower court was right when it held that the relief for the payment of S1,000,000 succeeds against the 2nd and 3rd appellants; and in ordering the 1st and 3rd appellants to pay the said sum of S1,000,000 plus interest at the rate of 5%.
2. Whether the court below was right when it held that the 2nd and 3rd appellants failed to challenge the veracity of Exhibits O and Q and consequently found the respondent in its counter claim for the sum of S1,000,000 and interest without consideration of available evidence before the court and without proper evaluation of Exhibit O and Q.
3. Whether the court below was right when it held that there was no record of any signature which both parties agreed is the genuine signature of the 3rd appellant with which the court could compare the signatures in Exhibits O and Q.

ISSUE ONE:

Whether the lower court was right when it held that the relief for the payment of S1,000,000 succeeds against the 2nd and 3rd appellants, and in ordering the 1st and 3rd appellants to pay the said sum, and interest at the rate of 5%.

It is argued for the appellant on issue one that the trial court failed to find whether the 1st Appellant, a separate entity from the 2nd Appellant owed the respondent S1,000,000; especially as no evidence was led, neither was it pleaded by the respondent that it was owed S1,000,000; even though it found that the 2nd appellant owed the respondent S1,000,000 as per page 255 of the record.

Yet the trial court ordered the 1st and 3rd Appellants to pay the respondent S1,000,000, shifting the finding of liability on the 2nd Appellant as if the 1st and 2nd Appellants are the same. Learned counsel urged this court to hold that the order that the 1st Appellant pays the respondent S1,000,000 is without any legal basis, especially he argued, because the pleadings of the respondent taken as whole cannot sustain the claim of S1,000,000.

Learned counsel submitted while referring to AJIDE v KELAANI (1985) 3 NWLR part 12 248 and TOWOLANI V SAIPE S.P.A (2003) 34 at 48 that the respondent is not entitled to any award, because the evidence of DW1, is contradictory and inconsistent in law.

That the respondent referred to the S1, 000,000 in paragraphs 15, 16, 17 and 19, without pleading any contractual basis for the amount alluded, notwithstanding which the claim was refuted by the 1st and 2nd appellants, as well as the 3rd; that in any event the contents of exhibit O and Q do not sustain or support the grant of the counter claim of S1,000,000; he referred the court NGIGE V OBI (2006) 18 WRN 33 at 154.

Learned counsel also submitted that the trial court found as a matter of fact that the counter claim of S1,000,000 was not proved; he referred this court to page 253 of the proceedings where the trial court stated “apart from this assertion by the defendant through its witness, there is no other evidence, documentary or otherwise how the transaction came about.” and page 254 of the record where it stated “curious as it may be the defendant did not rely on any evidence in proof of this 2nd transaction other than Exhibit O and Q.”

Yet learned counsel contended the trial court granted the claim, relying exclusively on the same Exhibits O and Q, which it acknowledged as no proof of the claim.

That the main case of the 1st and 2nd Appellants is a challenge to Exhibits O and Q, and the counter claim; the defence to counter claim of the 1st, 2nd and 3rd Appellants is sufficient challenge to Exhibits O, Q and the counter claim; so even if Exhibits O and Q were not challenged there is no reason to grant the counter claim as the said Exhibits are not proof of the counter claim; that it was neither necessary nor compulsory for the 3rd Appellant to appear personally, as he was represented by counsel who disproved the counter claim through cross examination; learned counsel referred to N.AC.B. LTD v ADEAGBO, G.O (2004) 25 WRN 92 at 112 and urged this court to resolve this issue in favour of the appellants.

In response it is submitted for the respondent that the appellants are trying to capitalize on a slip in the judgment because the court held that “…the relief of S1,000,000 succeeds against the 2nd and 3rd Appellants”, but inadvertently ordered payment to the 1st and 3rd Appellants; i.e. mistakenly referring to the 1st Appellant, instead of the 2nd appellants.

That the respondent clearly pleaded the transaction of S1,000,000 was with Chrome Oil Services Ltd, the 2nd plaintiff, who is the 2nd defendant to the counter claim; and in the pleading the respondent specifically claimed against the 2nd and 3rd Appellants in paragraph 25 (c); and supported by the evidence of the defendant/counter claimant.

Learned counsel further submitted that the trial court carefully examined the counter claim and made specific findings at page 257 and 258 of the record; and that an appeal court will not reverse a judgment merely because of a slip; he referred this court to ADEOGUN v. FASOGBON (2011) All FWLR JSC at 485.

That the slip or error did not occasion any miscarriage of justice; AMASTIKE V THE REGISTRAR GENERAL CAC (2010) All FWLR (541) at 1410; that relying on it will amount to emphasising technicality; BOLAJI v STATE (2010) ALL FWLR at 100; learned counsel urged this court to resolve this issue against the appellant.

It is clear from the record that the apparent reference by the trial court to the 1st and 3rd appellants when it ordered for the payment of S1,000,000 was an unintended error, this much is clear from page 257 of the record, where the trial court held: “on relief for the payment of the sum of One Million US dollars (1,000,000) against the 2nd plaintiff.
This court having found and held that the 2nd plaintiff are liable for the claim, I hold that this relief succeeds.”

Furthermore, the respondent clearly pleaded that its transaction of S1,000,000 was with Chrome Oil Services Ltd, the 2nd Plaintiff/Appellant who are the 2nd defendant to the counter claim; and the respondent further pleaded clearly in paragraph 25 (c) for “an order of specific performance for the payment of the sum of S1,000,000 by the 2nd and 3rd defendants to the defendant/counterclaimant.”; and in paragraph 12 when it was pleaded that “the 3rd defendant Sir Emeka Offor executed a personal guarantee in favour of the defendant/counter claimant to secure the debt of the 2nd plaintiff/defendant (Chrome Oil Services Ltd).”

I do agree with learned counsel to the respondent, having gone through the record, that the claim and testimony of the respondent was directed at the 2nd and 3rd Appellants; but more importantly, the trial judge in our opinion carefully examined the counterclaim and made definite findings, where he held at page 258 that the relief of S1,000,000 against the 2nd plaintiff succeeds.

In view of these, it is clear that the error in this case is akin to a slip, especially as the manifest intention of the court, and indeed the respondent are clear; “The words “accidental slip” have been judicially considered to inter alia mean a clerical mistake in a judgment or order. Such error must be an error in expressing the manifest intention of the court.” STIRLING CIVIL ENGINEERING LTD v. YAHAYA (2005) 11 NWLR 935 at 181.

It is clear to this court also that the slip or mistake is human, and did not in any way affect the substance of the matter before the trial court the Supreme Court had this in mind when it held “It will not be in the interest of justice for an otherwise excellent judgment to be overturned by the judge’s technical slip which has not been shown to be fatal or such, as earlier stated, as would occasion a miscarriage of justice”, UNIVERSITY PRESS LTD V I.K. MARTINS NIG. LTD (2000) 4 NWLR part 654, 548.
It is the considered opinion of this court that the Appellants have failed to show that the error complained of relates either to the merit of the case or that it is substantial, neither has it been shown to cause any miscarriage of justice; the error of referring to the 1st Appellant instead of the 2nd is in the circumstances of this case not fatal.
“…it is not every slip of a lower court that will result in an appeal being allowed: it is only those mistakes that have been shown to have affected or influenced the decision appealed against that result in the appeal being allowed.”
OSAFILE V. ODI (1990) 2 NWLR part 137 at 30.
Since it was a slip, this court has the power to correct it.

Therefore, it is the 2nd and 3rd appellants that are to pay the S1,000,000.00 to the respondents, and not the 1st and 3rd appellants.
Accordingly, this issue is resolved in favour of the respondent, and against the appellants.

ISSUE TWO:

Whether the lower court was right when it held that the 2nd and 3rd Appellants failed to challenge the veracity of Exhibits O and Q and consequently found for the respondent in its counter claim for the sum of S1,000,000 and interest without consideration of all available evidence before the court and without proper evaluation of Exhibits O and Q.

It is submitted for the appellants that the 1st and 2nd Appellants pleaded in paragraphs 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the statement of claim, and led evidence through the PW1 that they are not indebted to the respondent in any sum, including the S1,000,000, subject of the respondent’s counter claim; see page pages 9-11 of the record; that the 1st and 2nd appellants further denied the counter claim by a defence to counter claim, page 67-68 of the record, same as the 3rd Appellant, pages 113-114 of the record; DW1 also admitted the case of the appellants under cross examination as per pages 228-231, yet the lower court held that Exhibits O and Q were not challenged.

That the respondent filed suit No. FCT/HC/CV/1123/2004 against the appellants, wherein claim (ii) is for N99,100,000; the substratum of the counter claim for S1,000,000; and the said suit was settled as per Exhibit C, and abandoned by the respondent, leading to its striking out, the parties having signed a memorandum of settlement.

That being so, learned counsel argued the striking out of suit No. HC/CV/1123/2004 constituted a bar to further resurrecting any claim and issues raised in the said suit. Learned counsel submitted also that the settlement vide Exhibit C terminated all contentions and claims.

That cases are not settled piecemeal; that Exhibits C, D, E, F, G, G2, G3, G4, G5 and H having been accepted by the lower court it is wrong to turn around to sustain the counter claim of S1,000,000 on Exhibits O and Q only; especially when other available evidence were not evaluated along Exhibits O and Q.

Learned counsel further submitted that Exhibits E and F were written by the agents of the respondents, in acknowledgment of payments made by the appellants in furtherance of C, and that chrome oil and chrome air referred to in Exhibits E and F to the 1st and 2nd appellants; it followed therefore, learned counsel argued the intention of the parties was that Exhibit C settled all conceivable indebtedness of the 1st and 2nd Appellants to the respondent prior to the institution of the suit in Exhibit B.

Learned counsel urged this court to resolve the issue in favour of the appellants.

In response it is submitted for the respondent that 2nd and 3rd Appellants admitted their indebtedness to the respondent as per Exhibits O and Q, and that what is admitted needs no further proof, as found by the trial court.

That not only did the 2nd and 3rd appellants admit their indebtedness but went further to explain how it will be paid; an acknowledgement that now shifted the onus onto the 2nd and 3rd appellants to explain they have paid the liability, and how; learned counsel referred the court to SELDON V. DAVIDSON (1965) 2 A.E.R 755 and MACAULAY V NAL MERCHANT BANK (1990) 4 NWLR (144) 283.

That in opposition to the counter claim the 3rd Appellant filed a statement of defence, deposed to a witness statement on oath, yet refused to appear to testify in support of his case, and so abandoned his defence; BASSEY V PAMOL NIGERIA LTD (2010) ALL FWLR part 509 at 468. Learned counsel urged this court to resolve this issue in favour of the respondent.

It is clear from the record of proceedings, pages 122 to 124 that the respondent filed a counter claim, the effect of which seeks an order of specific performance for the payment of S1,000,000 by the 2nd and 3rd Defendant to the counter claim (herein Appellants).

Exhibits O and Q as found by the trial court are clear admissions of indebtedness to the respondent by the 2nd and 3rd Appellants, in addition to the Oruruo Eloka, DW1, at page 111 of the record, especially paragraphs 10 to 15.

Contrary to the contention of learned counsel to the appellants, this court holds the view that the respondent have discharged the onus of proof of a counter claimant, by the evidence of DW1 and Exhibits O and Q; and thus having acknowledged their liability the onus is on the 2nd and 3rd Defendants to the counter claim, herein appellants to show that they paid, or are not indebted; this is more so, especially in view of the appellants’ eagerness, portrayed particularly in Exhibit O to pay.

This court is of the view that the trial court cannot be faulted in its findings in this regard, especially when account is taken of the fact that it had the opportunity to not only appraise and evaluate the evidence, and it did so.

The 3rd Defendant/Appellant, in opposition to the counter claim filed a statement of defence, pages 113 and 114 of the record of appeal, and deposed to a statement on Oath, at page 116 to 117 of the record of appeal, but failed or refused to testify in support of his case; and can rightly be said to have abandoned same, especially in view of the fact that the respondent/counter claimant had discharged the onus placed on him by the evidence of DW1 and Exhibits O and Q, as earlier pointed out.

The abandonment of the 3rd Defendant/Appellant’s case is total, by reason of the fact that no sufficient evidence was elicited in contradiction from the testimony of DW1, contrary to the contention of learned counsel to the appellant; it is just not enough in the circumstances to refuse or fail to lead evidence in support of your pleadings, only to cross examine the witness for the counter claimant, and assume that mere cross examination is enough. The evidence elicited from such cross examination must not only be pleaded, relevant, but also substantially support the claim of the appellant. I did not see such thing in this case. The circumstances of this case are clearly in contradistinction to the position of the law in OFEM & ANR V EWA & ANR. (2012) LPELR-7852-CA.

The argument for the respondent is made more compelling by the fact that the trial court was dealing with documentary evidence, which is the best form of evidence; C.D.C NIG LTD V SCOA NIG. LTD (2007) ALL FWLR 363 at 20; the lack of effort on the part of the appellants, particularly the 3rd was galling; the trial court cannot be faulted in its findings, especially when account is taken of the evidence at its disposal.

This court has no hesitation in resolving this issue for the respondent, and against the appellants.

ISSUE THREE:

Whether the court below was right when it held that there was no record of any signature which both parties have agreed is the genuine one for the 3rd Appellant with which the court could compare the signatures in Exhibits O and Q.

It is submitted for the Appellants that the lower court’s refusal to compare the signatures on Exhibits O and Q on the ground that there was signature accepted by the parties to be the signature of the 3rd Appellant is not borne out of the evidence on record, as it was the respondent’s that tendered Exhibits J, K, L and M, as per page 214 of the record.

That the Appellants in their concluding address accepted the signature attributed to the 3rd appellant in those exhibits; that the error by the lower court resulted in a miscarriage of justice; because if the lower court had compared the signatures it would have found that Exhibits O and Q were an attempt to mimic the signature of the 3rd defendant and would not have attached any weight to the said Exhibits.

Learned counsel urged this court to examine Exhibits O and Q alongside the regular signature of the 3rd appellant in Exhibits J, K, L and M; he referred this court to TOMTEC NIG. LTD V. FED. HOUSING AUTHORITY (2010) 16 WRN 24 at 44; and further submitted that denial of the signature by the appellants did not raise the issue of forgery as held by the lower court. He urged this court to resolve this issue in favour of the appellants allow the appeal and set aside the award interest by the lower court.

It is submitted for the respondent that the issue of disputing the signatures in Exhibits O and Q was only raised at the final address stage; that if appellants considered the issue important enough they should have raised the issue at the trial to be contested; and also that if the 3rd appellant says the signatures are not his, then that would amount to an allegation of forgery; and he who alleges must prove; learned counsel referred this court to EDISON AUTOMOTIVE IND. LTD V NERFUND (2009) ALL FWLR 13 AT 2250, AND SECTION 138(1) OF THE EVIDENCE ACT.

Learned counsel urged this court to resolve this issue in favour of the respondent dismiss this appeal and affirm the decision of the lower court.

This court is of the firm view that if indeed the appellants cared as much they would have disputed the issue of Exhibits O and Q much earlier than at the address stage, so that it could properly be contested by both sides; but raising it at such a late stage merely means that they have thrown everything at the lower court, to compare the documents, and make up its mind, if indeed it decided to do so, without benefit of any input prom the parties. That to say the least was not fair to the respondent, or even the court.

Even by the appellants’ own admission they did not admit the 3rd Defendant/Appellant’s signature until

“…at least in their concluding address accepted the signature attributed to the 3rd Appellant in those Exhibits…”

Having resolved all the three issues for determination in favour of the respondent, and against the appellant, this appeal fails and it is dismissed. The decisions of the lower court is affirmed, save as to the correction of liability on 2nd and 3rd appellants, and not the 1st and 2nd appellants.

N20, 000.00 (Twenty Thousand Naira only) costs is awarded against the appellants.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the lead judgment of my learned brother Mustapha JCA just delivered and I entirely agree with it. If the 3rd appellant truly disputed the signatures on exhibits O and Q, alleging that they are not his signatures, the onus is on him to plead this and lead evidence in support to prove so, such as by bringing his signatures that do not correspond with the ones in the exhibits. Not only did he not so plead, but he was not even in court to give evidence as to whether they were his signatures or not. It was not the respondents that raised the issue and so it was not incumbent on them to prove it. No evidence has been led in respect thereof, and to raise the issue only at the address stage, was to raise a red herring. It did not help the appellant as it was not the duty of the court to search for a needle in a hay which was not even within its grasp. I too, dismiss this appeal and I abide by the order as to costs.

JOSEPH E. EKANEM, J.C.A.: I had the privilege of reading in its draft form the judgment just delivered by my Learned brother, Mohammed Mustapha, JCA.

I have nothing further to add to it as I am in complete agreement with reasoning and conclusion therein. I adopt the decision and the orders therein.

Appearances

Jeph C. Njikonye, Esq., with Isaac Ita, I.A. Nnanna and Udenta Barabas For Appellant

AND

Dr. S.S. Ameh (SAN), with Francis Adefo For Respondent