UNITED BANK FOR AFRICA PLC v. WILMAS NIGERIA LIMITED & ANOR
(2016)LCN/8483(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/B/116/2013
RATIO
EVIDENCE: EFFECT OF UNCHALLENGED EVIDENCE
It is trite that credible evidence given in examination in chief or cross-examination if unchallenged, it is accepted as establishing the fact alleged. See – IFEANYICHUKWU OSONDU CO LTD v. AKHIGBE (1999) II NWLR (Part 625) Page 1. PER JIMI OLUKAYODE BADA, J.C.A.
BANKING LAW: WHAT IS THE DUTY OF A BANK IN A BANK/CUSTOMER RELATIONSHIP
In a bank/customer relationship like in this present case, the Appellant had a duty to exercise reasonable care and skills with regards to agreement entered into by both the Bank and its customer.
In AGBANELO v. UNION BANK OF NIGERIA LTD (2000) 7 NWLR (Part 666) Page 534, it was held per Ayoola, JSC that
“A bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to operation within its contract with its customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the customer.” PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
UNITED BANK FOR AFRICA PLC – Appellant(s)
AND
1. WILMAS NIG. LTD
2. WILLIAM AKPONYOMA – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice, Effurun, Delta State of Nigeria in Suit No ? EHC/21/2010 ? WILMAS NIG. LTD AND ANOTHER v. UNITED BANK FOR AFRICA PLC delivered on the 9th day of July 2012 wherein Judgment was given in favour of the Respondents and against the Appellant.
Briefly the facts of the case are that by their amended statement of claim, the claimants now Respondents prayed for the following reliefs:-
“1. A Declaration that as at or about 3rd June, 2008, the claimants were no longer indebted to the defendant.
2. An order compelling the defendant to release and handover to the claimants all title documents and/or properties of the claimants in defendant?s possession.
3. The sum of (N15,000,000.00) Fifteen Million Naira being damages suffered by the claimants over wrongful detention of claimant?s document or property title documents kept by the defendant after claimants
had liquidated their indebtedness to the defendant.”
The Defendant upon being served with the claim of the claimants counter claimed as follows:-
“(i) Payment of the sum of (N550,000.00) Five Hundred and Fifty Thousand Naira being claimants indebtedness to Defendant.
(ii) Interest at the rate of 21% per annum or at the prevailing bank rate whichever is higher on the said sum of (N550,000.00) Five hundred and fifty thousand Naira from June 2010 until the entire sum is liquidated.
(iii) Interest of 10% on the Judgment sum from date of Judgment until the entire sum is liquidated
(iv) Other suitable reliefs.”
At the conclusion of hearing, judgment was entered in favour of the claimants as follows:-
(1) As at or about 3rd June, 2008 the claimants were no longer indebted to the defendant. Consequently, the defendant is hereby ordered to execute a deed of release in favour of the claimants within 30 days hereof.
(2) The Defendant is hereby ordered to release and handover to the claimants all title documents and/or
properties of the claimants in defendant?s possession within 15 days hereof.
(3) The sum of (N1,000,000.00) One Million Naira as general damages.
(4) N10,000.00 cost.”
?Dissatisfied with the Judgment of the lower Court, the Appellant appealed to this Court.
The Learned Counsel for the Appellant formulated two issues for the determination of the appeal. The issues are set out as follows:-
“ISSUE NO 1
Whether the Learned trial Judge properly evaluated the evidence oral and/or documentary adduced by the parties before it proceeded to dismiss the Appellant’s counter-claim.
ISSUE NO. 2
Whether the findings of the Learned trial Judge that the Respondents did not admit that they did not pay the 1% management fee as stated in Exhibit “A” in view of their pleadings and evidence of the 2nd respondent is not perverse and/or wrongful.”
The Learned Counsel for the Respondent on the other hand also formulated two
issues for the determination of the appeal. The said issues are set out as follows:-
“ISSUE NO 1
In view of the evidence before the Court below, was the Court not right in dismissing the counter claim of the Appellant.
ISSUE NO 2
Did the trial Court not determine the issue of 1% management fee properly in view of the evidence before it.”
At the hearing of this appeal on 3rd day of February, 2016, the Learned counsel for the appellant stated that the Judgment appealed against was a Judgment of Delta State High Court delivered on 9th July 2012. The notice of appeal was filed on 11/7/2012.
He went further that the record of appeal was transmitted out of time on 21/3/2013 but was deemed as properly compiled and transmitted on 13/10/2013.
The appellant’s brief of argument filed on 21/5/2013 was deemed as properly filed and served on 29/9/2014.
?The Learned Counsel for the Appellant adopted the said Appellant’s brief as his argument in urging that this appeal be
allowed.
The Learned Counsel for the Respondent in his own case also referred to the Respondent?s brief of argument filed on 16/6/2014 but deemed as properly filed and served on 7/5/2015.
He adopted the said Respondent?s brief as his argument in urging that the appeal be dismissed.
I have carefully examined the issues formulated for the determination of the appeal by counsel for the parties. The issues are similar but I am of the view that the issues formulated by Counsel for the Appellant are apt and relevant in the determination of the issues in controversy between the parties. I will therefore rely on the said issues formulated on behalf of the Appellant.
ISSUES FOR DETERMINATION OF THE APPEAL
?ISSUE NOS. 1 AND 2 (Taken together) (Distilled from Grounds 1, 2, 3, & 4)
“Whether the Learned trial Judge properly evaluated the evidence, oral and/or documentary adduced by the parties before it proceeded to dismiss the Appellant’s Counter claim.
Whether the findings of the learned trial Judge that the respondents did not admit that
they did not pay the 1% management fee as stated in Exhibit “A” in view of their pleadings and evidence of the 2nd Respondent is not perverse and/or wrongful.”
The Learned Counsel for the Appellant stated that the terms of the loan agreement between the parties is as contained in Exhibit “A” which makes provision for the payment of management fee of 1% flat payable upfront monthly.
He gave a gist of the Respondents case that upon payment of the loan facility granted to them, they demanded from the Appellant the release of the 2nd respondents title deeds deposited with the Appellant to secure the facility. The Respondent further stated that for the first time they were told by the Appellant that they are still owing a total sum of (N550,000.00) Five Hundred and fifty thousand Naira which is 1% Management fee payable upfront monthly.
The Respondent claim was denied by the Appellant who now set up a counter claim of (N550,000.00) Five Hundred and Fifty Thousand Naira being Respondents indebtedness to the Appellant.
Exhibit D was tendered at the lower Court which Exhibit is a statement of account of the Respondent as at
January 2009 which showed the Respondents account was in credit to disprove Appellant’s claim that the Respondents were still owing the sum of (N550,000.00) Five Hundred and Fifty Thousand Naira.
The Learned Counsel for the Appellant submitted that the Appellant is entitled to claim the said sum of money though it did not make deductions as it should have been done from the Respondents’ account.
He went further in his submission that the Learned trial Judge wrongly evaluated the evidence before it, thereby coming to a wrong decision when he held that there was no oral or documentary evidence to show the admission of the N550,000.00 by the claimants.
It was contended on behalf of the Appellant that the claim was admitted by the Respondents and therefore that it was not necessary for the appellant to prove that the Respondents did not pay the 1% management fee agreed by the parties as per Exhibit “A”.
He relied on the following cases:
GOVERNOR OF AKWA IBOM STATE v. UMAH (2002) FWLR (PART 110) PAGE 1783 AT 1817 PARAGRAPH F.
NARINDEX TRUST LTD VS NIGERIA INTERCONTINENTAL MERCHANT BANK LTD (2001) FWLR (PART 49) PAGE 1546 AT
1558 PARAGRAPH F
It was submitted further on behalf of the Appellant that in view of the failure of the lower Court to properly evaluate the evidence before it, this Court is in a position to do so. He relied on the case of:-
– BERHA v. TIZA (2004) 4 NWLR (Part 652) Page 193 at 212 Paragraphs C-D
He finally urged that the issue be resolved in favour of the Appellant and allow the appeal.
The learned Counsel for the Respondents in his submission argued that having regard to the issues raised by the Appellant, this appeal turns only on the dismissal of the counter claim which the Appellant filed at the lower Court over the 1% management fee. The award of damages for wrongful holding on to the title documents of the Respondents is no longer an issue in this case.
It was submitted on behalf of the Respondents that the counter claim was not made out by the Appellant at the lower Court and the Learned trial Judge was right to have dismissed same.
The Learned Counsel for the Respondents also submitted that DW1’S evidence at the lower Court is hearsay, in that how that 1% was calculated running to (N550,000.00) Five Hundred and
Fifty Thousand Naira was not shown to the Court. And in fact, that the DW1 i.e. the Appellant’s only witness admitted that he was not in charge of the alleged 1% management fee.
The Learned Counsel for the Respondent also referred to the testimony of DW1 where he stated on page 86 of the record of appeal lines 8 & 9 that
“Customers are supposed to rely on the statement of account issued to them”
And he submitted that it is not only the customers but the bank also should rely on the statement of account on their dealings with customers. As those issuing the statement, the bank is also bound by whatever the statement contains.
He also referred to the finding of the Learned trial Judge that the statement of account are in possession of the Appellant who apparently declined to bring them forward. He contended that there was no evidence that other statements of account were in possession of the Respondents which they failed to bring forward in Court. It was also submitted that there is nothing like admission by implication. He stated that admissions are clear and unequivocal statements accepting what is proffered by the other
side. He relied on the case of:- U.B.A. PLC v. IBACHEM (Ibaton Chemical) Ltd (2014) E NWLR (PART 1402) PAGE 125 at 154 RATIO 1 PARAGRAPH F-H
It was also submitted on behalf of the Respondents that an appellate Court will not set aside the decision of a lower Court which is right. He relied on the following cases:-
– JOBI TRADE INVESTMENT LTD & ANOTHER v. OLUBISI (2013) ALL FWLR (PART 700) PAGE 1419
– BALOGUN v. AKANJI (1988) 1 NWLR (PART 70) PAGE 301
– AJADI v. OKEIHEN (1985) 1 NWLR (PART 3) PAGE 484
– AKEIBU v. OPALEYE (1974) II S.C. PAGE 189.
– MOLLER BUCKLEY (NIG) LTD v. AKURA (1986) 5 NWLR (PART 44) PAGE 752
– EMARIERU v. OVIRIE (1972) 2 S C PAGE 31
– DAIRO v. UNION BANK OF NIGERIA PLC (2007) ALL FWLR (PART 392), (2007) 16 NWLR (PART 1059) PAGE 99.
He finally submitted that the decision of the lower Court is completely grounded in law and that same should be upheld by this Court.
He urged that the appeal be dismissed.
There is no doubt that the two issues for the determination of this appeal are related to the counter claim of the Appellant at the lower Court.
During cross examination
of the 2nd Respondent he stated as follows on pages 83 of the record of appeal.
“I am aware of the terms and conditions in Exhibit “F”. I am aware that the 1% management fee was collected from me on the onset at the grant of the facility. The 1% management fee is contained on Exhibit “F”
I am no longer owing the defendant. It is not true that I am owing (N550,000.00) Five hundred and fifty thousand Naira management as in Exhibit “F”. I have paid them. My statement of account shows the payment I made.”
The appellant did not controvert the crucial evidence extracted from the 2nd Respondent during cross examination.
It is trite that credible evidence given in examination in chief or cross-examination if unchallenged, it is accepted as establishing the fact alleged. See – IFEANYICHUKWU OSONDU CO LTD v. AKHIGBE (1999) II NWLR (Part 625) Page 1.
Also by Exhibit “D”, the Respondents statement of account as of January 2009 which showed that the Respondents were in credit, therefore until otherwise
contradicted by the Appellant, it remained valid and portrays the position of the account of the Respondents during the period in question.
The Appellant is duty bound to provide evidence to buttress the fact that the management fee of 1% was omitted and not calculated.
This could have been done by the Appellant bringing the statement of account of the 1st Respondent for the duration of which the Respondent was indebted to the Appellant. There was no detailed evidence on how DW1 arrived at the (N550,000.00) Five hundred and Fifty thousand Naira which was being alleged that the Respondents are owing.
In a bank/customer relationship like in this present case, the Appellant had a duty to exercise reasonable care and skills with regards to agreement entered into by both the Bank and its customer.
In AGBANELO v. UNION BANK OF NIGERIA LTD (2000) 7 NWLR (Part 666) Page 534, it was held per Ayoola, JSC that
“A bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to operation within its contract with its customers. The duty to exercise reasonable care and
skill extends over the whole range of banking business within the contract with the customer.”
The Appellant who alleged that a review was carried out and that the review revealed the indebtedness of the Respondents had a burden to prove same. The onus of the initial proof of the assertion is on the Appellant, it is only upon satisfactory proof as required by law that the burden of proof would shift on the Respondents with regards to the fact in controversy. Since the Appellant has failed to discharge the initial burden, the Respondents bear no burden. See the case of IMAN v. SHERIFF (2005) 4 NWLR (PART 914) PAGE 80.
The learned trial Judge diligently evaluated the evidence before the lower Court before dismissing the counter claim when he held on page 94 of the record of appeal as follows:-
“The Claimant has tendered Exhibit D to show a credit balance. And this statement was as at January 2009. The Defendant issued Exhibit D to show the state of affairs or the status of the Claimants account with it. It was the Defendant as the Claimants’ banker who made all the calculations and the deductions. The Defendant had all
the facts as his disposal. See S 140 of the Evidence Act 2011 which states that:
“When a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
It was now left to the Defendant to show that indeed, it did not throughout the life of the loan facility, charge the fees it was expected to charge upfront. The Defendant did not plead or adduce evidence to show that it did not perform part of the agreement or terms in the loan agreement to deduct the management fee as at when due. The defendant did not show this Court that the charges or deductions it made on the Claimant’s account did not include the upfront management fee of 1%. The defendant did not give particulars of mistake or how the Claimants were issued a clean bill of health via Exhibit “D”. See Order 15 Rule 3 of the Delta State High Court Civil Procedure Rule. I also agree with the Claimants? counsel that the Court should presume that if the Defendant had produced the Statement of Account of the Claimants for the relevant period, the contents will not be favourable to the Defendant. See S 167 of
the Evidence Act 2011 which states that:
“The Court may presume 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 particular case, and in particular the Court may presume that
a. …
b. …
c. The common cause of business has been followed in different cases.
d. Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it and
e. When a document creating an obligation has been discharged”. (See page 94 of the Records of Appeal lines 8-32 thereof and page 95 lines 1-4)
Since the Defendant has not discharged that burden, this Court has no option but to find and hold that as at 31st December, 2008 the Claimants account with the Defendant being in credit, the Claimants were no longer indebted to the Defendant. See
also S 128 Evidence Act 2011. I do not agree with the defendants counsel that the fact that the management fee was charged and not deducted is admitted by the Claimant and need no proof. The oral and documentary evidence before me do not show any such admission by the Claimants. The Claimants say they have paid all rates. Whether flat or whatsoever called. (See lines 5-11 of page 95 of the Records of Appeal)
What are the details of the ‘detailed review’ carried out by the Defendant’s staff? How did they arrive at the finding that they had not complied with the terms of Exhibit ‘A’ by deducting the 1% management fee upfront? Where are the Statement of Account showing this lack of deductions? Why did the defendant have to wait till the Claimants demanded for their title deed before coming up with an excuse not to release same? It is very sad that despite all efforts to improve the economy of this country and to encourage businesses and investment, a bank would be so inconsiderate. It is high time service providers who are being paid for their service should stop giving the impression that they are doing their customers a favour. This
does not augur for economic development in this country.
The defendant’s letter of 22 September 2008 notified the Claimants that it was still indebted to it because it had omitted to charge fees which ought to have been monthly upfront. I note that despite this letter, the Defendant issued Exhibit ‘D’ on the 2nd January, 2009 stating that the Claimants account was in credit. (See lines 18-30 of page 95 of the Records of Appeal)
The letter of 22 September 2009, Exhibit ‘F’ was issued to tend therefore to believe the Claimants when they say that this claim for outstanding fees is an afterthought designed to further delay the release of the Claimants titles deeds. This is because, despite repeated demands from the Claimants and their counsel, the defendant has neglected to hand over the said title deeds. The defendant had denied the Claimants the use of the title deeds for whatever purpose they choose to including the use of it to obtain facilities for business. With regard to the damages claimed against the Defendant for withholding the title deed of the 2nd Claimant, the defendant does not deny it still withholds same. (See line 1-8 of page 96 of the
Records of Appeal)
I have perused painstakingly the evidence proffered by the parties including the Exhibits tendered at the lower Court along with the submissions of counsel on both sides and I cannot but agree with the finding of the lower Court that the Respondents proved their claims against the appellant.
Issues 1 and 2 are therefore resolved in favour of the Respondents and against the Appellant.
In the result, I am of the view that this appeal lacks merit and it is hereby dismissed.
The Judgment of the lower Court in suit No. EHC/21/2010 WILMAS, NIG LTD AND ANOTHER v. UNITED BANK FOR AFRICA PLC delivered on the 9th day of July, 2012 is hereby affirmed.
The Respondents are entitled to costs which is fixed at (N75,000.00) Seventy-five thousand Naira against the Appellant.
PHILOMENA MBUA?EKPE, J.C.A.:?I have had the privilege of reading in draft the judgment just delivered by my learned brother J. O. Bada, JCA in which he dismissed the appeal for lacking in merit. I also affirmed the judgment of the lower Court delivered on the 9th day July, 2012.
I abide by the consequential
order as to costs.
HAMMA AKAWU BARKA, J.C.A.: I have been opportuned to have read in draft the lead judgment just delivered by my Lord JIMI OLUKAYODE BADA, J.C.A. Having read the illuminating lead judgment, I cannot but agree that the reasoning and conclusion arrived therein meets the justice of the case.
The consequence is that I too see no merit in the appeal, and I join the lead judgment in dismissing same. In result, the judgment of the lower Court in Suit No. EHC/21/2010 delivered on the 9/7/2012 is hereby affirmed. I abide as to order on costs made in the lead judgment.
Appearances
Sir Victor E. Akpoguma with him, B. A. AwhariadoFor Appellant
AND
Mr. G. J. Odjesa with him, Miss. Ejiro EjakpoviFor Respondent
