O. AMANDI ENTERPRISES NIGERIA LIMITED & ANOR v. OBA MICRO FINANCE BANK NIGERIA LIMITED
(2018)LCN/11961(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/E/168/2010
RATIO
EVIDENCE: DOCUMENTARY EVIDENCE
“The law has remained well settled to the effect that documentary evidence, being a hanger upon which oral evidence is assessed, the latter is to throw more light on the former. Ndulue v. Ojiakor (2013) 8 NWLR (pt. 1356) 311 at 328; Egharevba v. Osagie (2009) 18 NWLR (pt. 1173) 299; Fashanu v. Adekoya (1974) 6 SC 83; Kimdey v. Mil. Gov. Gongola State (1988) 2 NWLR (pt. 77) 445.
Therefore, where a mass or any document is tendered into evidence and it is not demonstrated by the party who has the onus of proof placed upon him, as to the value of the document to his case, by oral evidence, no duty is placed on a trial Court to give any probative value to such a document. Belgore v. Ahmed (2013) 8 NWLR (pt. 1355) 60 at 100; Flash Fixed Odds Ltd v. Akatugba (2001) 9 NWLR (pt. 717) 46.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. O. AMANDI ENTERPRISES NIG LTD
2. BARTHRAM OKAFOR Appellant(s)
AND
OBA MICRO FINANCE BANK (NIG) LTD Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the Anambra State High Court of Justice, holden at Ogidi, rendered on 17th June, 2010.
The appellants had sued the respondent at the Court below, claiming the following reliefs, to wit:
1. A declaration that the Defendant is in breach of the Warehouse Financing Agreement entered into between the plaintiffs and the defendant.
2. An order of perpetual injunction restraining the defendant from in any way or manner do or continuing to do anything prejudicial to the 1st plaintiff in respect of all that property of the 2nd plaintiff lying, being and situate at Obiofia Nnewichi Nnewi, Nnewi North Local Government Area of Anambra State, the dimension, size and location of which is not in doubt between the parties and known to the parties.
3. An order for accounts to be stated by the parties hereto to determine the amount due to the 1st plaintiff from the defendant based on charges, wrong debit, wrong entries in the Books of the 1st plaintiff with the defendant.
4. An order reversing all the wrong debits, wrong entries debited to the 1st plaintiff’s accounts in the Books kept by the defendant.
The respondent in her response, filed an amended statement of defence and counter claim claiming the following reliefs from the appellants, namely:
(i) Payment of the sum of N13,624.926.60 being the outstanding sum on the Temporary Overdraft granted to the plaintiffs by the counterclaimant as at 13/06/2006.
(ii) Interest at the rate of 28% per annum on the sum from 14/06/2006 until judgment is delivered.
(iii) Interest at the rate of 5% per annum from the date of judgment until the entire sum is finally liquidated.
(iv) Alternatively an order of Court for the sale of the landed property deposited by the plaintiffs? with the counter-claimant as security for the Temporary Overdraft by Public Auction and the payment of the proceeds into the plaintiff’s account with the counter-claimant.
(v) And an order of the Court for the sale by public auction of the abandoned packet shirts and the payment of the proceeds into the plaintiffs’ account with the counter-claimant to liquidate the debt owed to the defendant by the plaintiffs.
The appellants’ case against the respondent is that the respondent, a financial Institution, availed the 1st appellant an overdraft facility of six million naira (N6,000,000.00) vide Exhibits P5 and P13 for the importation of shirts from China. It was their further case that the parties equally agreed that on the receipt of the goods at the wharf that same would be warehoused by the Respondent.
On the receipt of the goods as agreed, the Respondent took delivery of same and kept same in her warehouse. As agreed, the respondent started releasing the said goods to the 1st appellant in batches till at a stage, the respondent refused further release of same claiming that the 1st plaintiff had not kept faith to their agreement by repaying the overdraft facility.
It is the Appellants’ case that because the Respondent refused a further release of the goods, the prices of the said goods depreciated causing the 1st appellant, loss of profit and resulting in the breach of their agreement. As a result of the Respondent’s claim of lien over the 2nd appellant’s landed property as she had purportedly earlier on taken into her custody the title documents of same as security for the overdraft facility and her undue and unjustified insistence of selling same with the view to recovering the 1st appellant’s indebtedness to her, the plaintiffs/Appellants filed this suit and had claimed the reliefs as set out above.
The parties filed and exchanged their pleadings and thereafter, the suit proceeded to trial. Both parties’ witnesses proffered evidence and tendered into evidence some documentary exhibits. Thereafter, the learned counsel to the parties, filed and exchanged their respective written addresses which were subsequently adopted in Court as their submissions on the suit. The learned trial judge, in his judgment, dismissed the appellants’ action and found for the respondent to the effect that the latter’s counter-claim succeeded.
The appellants, irked by the decision against them filed this appeal, predicated on one ground of appeal. However, with the leave of this Court sought and obtained, the appellants’ amended notice of appeal, containing eight grounds which was filed on 29th October, 2010, was deemed filed on 10th June, 2014.
The appellants, in order to activate the prosecution of the appeal, filed the appellants’ brief of argument on 29th October, 2010. The same was deemed by this Court, as properly filed on 10th June, 2014.
The respondent’s brief of argument, dated 3rd October, 2017 and filed on 4th October, 2017 was deemed by this Court as properly filed on 24th October, 2017.
In the appellants’ brief of argument, settled by Onyechi Araka, Esq., four issues were identified for the determination of the appeal, thus:-
1. As the parties had both traced their agreement grounding the transaction, the subject matter of this appeal, to Exhibits P5 and P13, was the decision of the learned trial judge that the plaintiffs were liable not perversed when he brought into the case the consideration that Exhibits P4 and P12 were part of the agreement of the parties?
2. Were the plaintiffs on the facts and circumstances of this case under any further evidential burden after they had positively asserted that they sold their goods at an under value rate, an unchallenged and unrebutted piece of evidence, to produce their sales books of the said goods at the trial.
3. Whether the learned trial judge was not grossly in error when he held that the plaintiffs were enjoined to prove ordinary facts that were judicially noticed.
4. Was the judgment of the learned trial judge on the facts and circumstances of this case not against the weight of evidence?
Emeka Anyaenetu, Esq., who settled the respondents brief also formulated four issues therein for the resolution of the appeal, to wit:
1. Whether the trial judge was right when he held that the plaintiffs were liable to the defendant to pay the money advanced to the plaintiffs given the circumstances of the case.
2. Whether the plaintiffs proved that the packet shirts were sold at an undervalue and whether the price at which the goods were sold frustrated the contract.
3. Whether the trial judge was right when he held that the defendant was entitled to charge interest on the plaintiffs and whether the interest charged was wrong.
4. Whether the judgment of the learned trial judge was against the weight of evidence.
Upon my perusal of the parties’ respective positions at the trial, the judgment of the learned trial judge, the grounds of appeal against that judgment and the issues nominated by learned counsel for the parties respectively, I have elected to adopt the four issues nominated by the respondent for the resolution of the appeal because they are more precise and straight forward. I shall reconsider and resolve issues 1 and 2 thereof together and thereafter deal with issues 3 and 4 together.
I had painstakingly read the contentions of the learned counsel to the parties in their respective briefs of argument which I do not intend to rehash in this judgment. However, in my consideration of the issues in the appeal as ventilated by each counsel, I shall make reference to them as the occasion demands.
Issues 1 and 2
The law has remained well settled to the effect that the importance and criticality of the use of the terms in a contractual agreement cannot be overemphasized because the Court regards them as sacrosanct. Therefore, the Court will be wary to read into the terms of an agreement, matters which were not in the contemplation and eventual agreement of the parties.
That being the case, it is generally the position of the law that in contractual matters, such as it is in the instant case, where the terms and conditions are clearly spelt out in a written agreement, neither the parties nor the Court is entitled and allowed to read into it, any extraneous terms upon which the parties did not expressly reach an agreement. Ogundepo & Anor v. Olumesan (2011) 12 SCNJ (pt. 1) 89; BFI Group Corporation v. Bureau of Public Enterprises (2012) LPELR 9339 (SC); Attorney General, Rivers State v. Attorney General, Akwa Ibom State & Anor (2011) LPELR 633 (SC); (2011) 3 SCNJ 1; Kaydee Ventures Ltd v. The Hon. Minister FCT & Ors (2010) LPELR 1681 (SC); (2010) 7 NWLR (pt. 1192) 171 (SC); Dike & Anor v. Obienu (2015) LPELR 25873 (CA) at pg. 8 – 9.
Furthermore, in order to determine the vital documents which constitute a contractual agreement between the parties, the Court must do a detailed examination of the correspondences between the parties which culminated into the final agreement between the parties. That is why, his Lordship, Fabiyi, JSC, in BFI Group Corporation v. Bureau of Public Enterprises (supra) at page 31 thereof, opined that:
”The task of analyzing the several letters and attempts to reconcile the one with the other is undoubtedly a very difficult one calling for the most serious examination of each and every one of several documents until the Tribunal is able to say whether a contract is indeed established.”
Further see: Shell BP Petroleum Co. Ltd v. Jammal Engineering (1974) 4 SC 33 at 72; Spera In Deo Ltd v. Peccuno Mineral Industry (Nig) Ltd & Anor (2016) LPELR 41044 (CA) at pages 10 – 11.
In the instant matter, it is indisputable that Exhibits P4 was a precursor to Exhibits P5 and PW13. It is expedient to reproduce them. They each say, inter alia:
EXHIBIT P4, reads:
8th Jan. 2002
The Manager,
The Community Bank (Nig) Limited,
P. O. Box 302,
Oba.
Dear Sir,
WAREHOUSE FINANCING ACCOUNT NO. 4916)
We humbly request for the approval of short term loan (4 months), the sum of (6,000,000.00) Six Million Naira for the above subject matter.
Our goods are now ready at Wharf for clearance for which we appeal should be packed in your Warehouse for security reasons. In addition to this, we are depositing our Landed Property (plan Numbers NIS/AN 2119/84 dated 5th Nov. 1984 as Security) which is located at Obofia Nnewichi, Nnewi North L. G. A. Anambra State.
The goods, after clearing, should be packed in your Warehouse and to be released to us in parts for sale, and money realized after selling the part released should be lodged in your bank for further release until this loan is retired.
We anticipated that this request would receive our favourable approval.
Yours faithfully,
FOR O. AMANDI ENTERPRISED NIGERIA LIMITED?
EXHIBIT P5 reads:-
March 7th 2002
The Managing Director
O. Amandi Enterprises (Nig) Ltd
20 New Nkisi G. R. A.
P. O. Box 3767
Onitsha.
(Attn of Mr. B. I. Okafor)
Sir,
APPROVAL OF TEMPORARY OVERDRAFT OF N6,000,000.00
We refer to your application for warehouse financing facility and are happy to advice that the Bank have (sic) approved a temporary overdraft of N6,000,000.00 (Six Million Naira or for you under the terms and conditions stated below:
Amount: N6,000,000.00 (Six Million Naira only)
TENOR: 90 DAYS
AVAILABILITY FEE: 3% FLAT
INTEREST RATE: 28% P. A.
EFFECTIVE DATE: 07-03-2002
MATURITY DATE: 03-06-2002
CUSTODY OF THE GOODS
Your clearing agent will clear the goods with a staff of the Bank and hand over the entire goods to the Bank for custody in it’s warehouse. The cost of renting the warehouse will be borne by you. Goods will be released to you periodically from the warehouse.
Kindly indicate your acceptance of the above terms and conditions by signing the undertaking on the duplicate copy of this approval letter.
Yours faithfully,
For: Oba Community Bank (Nig) Ltd.
Maduakor Onugha Clifford Umeaku
Manager Accountant.
EXHIBIT P13, reads:-
UNDERTAKING:
THE ABOVE TERMS AND CONDITIONS ARE ACCEPTABLE TO ME WITHOUT RESERVATIONS.
NAME: B. I. OKAFOR DATE: 7.3.2002
ADDRESS: 20 NNEW NKISI OSHA A/C NO. 4916
SGD.
To my mind, Exhibit P4 was a proposal on request by the appellants for a loan facility, from the respondent, in aid of the appellants’ business.
Thereafter, in accepting to oblige the request/application of the appellants vide Exhibit P4, the respondent drew up the terms and conditions upon which the loan facility would be made available to the appellants, hence Exhibit P5 was in response at Exhibit P4. The appellants in turn, vide Exhibit P13, accepted the terms and conditions spelt out by the respondent in Exhibit P5. Hence, it is clear to me as crystals that the vital contractual agreements between the parties in this matter, are Exhibits P5 and P13. These are the only contractual agreements by which the contract between the parties can be enforced, therefore I agree with the appellants’ learned counsel, to the effect that neither the parties nor the Court can read any other extraneous nuances into Exhibits P5 and P13 which formed or constituted the binding contract between the parties.
So, Exhibits P4 and P12 were otiose and non sequitor, in the determination of the liability of either parties to the contractual agreement in this matter. I am of the considered and firm opinion that just as Exhibit P4 was a precursor/invitation to treat, preceding the contractual agreements in Exhibits P5 and P13, it cannot be said that Exhibit P12 which came into existence about four months after the execution of Exhibits P5 and P13 could have formed part of the contract between the parties. If Exhibit P12 was in the contemplation of the respondent, it ought to have stated so clearly in Exhibit P5.
I have considered the submissions of learned respondent’s counsel at pages 4 to 6 of the respondent?s brief of argument, which recapitulated the real scenario and understanding of the contractual obligations imposed on each of the parties by the instrumentation of Exhibits P5 and P13. For the sake of emphasis, the said submissions are that:
”By Exhibits P5 and P13, the parties agreed that the defendant/respondent will advance money to the plaintiffs/Appellants to clear their goods at the wharf. They also agreed that on clearing the goods the same will be left in the custody of the defendant/respondent and released ‘periodically’ to the plaintiffs/appellants. Exhibits P5 and P13 did not state what period within which the defendant/respondent will release the goods to the plaintiffs/appellants.
It is not stated in Exhibits P5 and/or P13 that the plaintiffs/appellants have to pay for the goods released to them. It is also not stated in Exhibits P5 and/or P13 that goods will be released to the plaintiffs/appellants unconditionally. The only provision of the contract is that goods will be released to the appellant ‘periodically’.
The defendant/respondent agree that a counter offer amounts to a rejection of an earlier offer which cannot subsequently be accepted.
My Lords, common sense which is reinforced by the proposal of the appellants in their application Exhibit P4 show that the appellants intended that the goods will serve as security for the money advanced to them by the respondent.
This by implication show that the respondent has a lien on the goods pledged to it by the appellants. See the case of AFROTEC Tech Service Nig. Ltd v. M. I. A. & Sons Nig Ltd (2000) 15 NWLR (pt. 692) p. 730.
See also the provisions of Section 866(1)(D) and Section 878(3) of the Contract Law (CAP 31) Laws of Anambra State of Nigeria 1991, which provides as follows:
S.866(1) Subject to any agreement or written law to the contrary a custodian for reward shall have a lien on the chattel entrusted to him in the follows cases:-
(1)(d) Where pursuant to an agreement between the parties, the custodian performs an act in connection with the chattel concerned or supplies materials for performing such act in addition to having custody of the chattel for reward for the amount due under the agreement.
S.878(3) The right of a pledgee to take, recover or remain in possession of the thing pledged to him shall cease when, but only when, the debt or other obligation in respect of which the pledge was made is satisfied or tendered.
The above sections of the Law of Contract in Anambra State recognize the action of the defendant/respondent to keep the goods in their custody until the plaintiffs pay for the batch released to them.
My Lords, though Exhibit P4 which is the application of the plaintiffs/appellants to the defendant/respondent for the facility is not part of the contract agreement at this stage, the appellants themselves understand very well that the respondent have the right to hold on to the goods until they the appellants pay them the money advanced to them through the facility. They stated that much in Exhibit P4. Further still on the above issue, it is agreed that by Exhibit P5 and P13, the parties agreed that: ”Goods will be released to you periodically from the warehouse”.
By the Advanced Learners Dictionary ‘periodically’ is defined as ‘in a regular periodic manner’. Periodic is defined as ‘having repeated cycles’ or ‘occurring at regular intervals’. Interval refer to ‘a period of time.’
The question to ask and answer is: What is the parameter for measuring the interval in this case so that it will be regular.
This was not provided for in Exhibit P5 and P13.
To answer the above question, one has then to look at the intendment of the contracting parties.
In this circumstance, Exhibit P4 which was the offer made by the plaintiffs/appellants to which the defendant/respondent made a counter offer in Exhibit P5 will come into focus to assist in having insight into the intention of the contracting parties. Exhibit P4 is at page 140 of the record.
My Lords, the contract between the plaintiffs/appellants and the defendant/respondent is for the defendant/respondent to advance money to the plaintiffs/appellant for the clearing of their goods at the wharf which money was provided in Exhibit P5 and P13.
The plaintiffs/appellants failed to repay the money advanced to them by the defendant/respondent as at the due date and they therefore became liable to the defendant/respondent for the balance of the money outstanding as at the time the plaintiffs/appellants went to Court which sum is reflected in the defendant/respondent’s counterclaim.
The plaintiffs/appellants gave reasons for non-repayment which included poor quality of the goods and the goods going out of fashion which have nothing to do with the defendant/respondent who had no hand in the price, quality and or quality of the goods and all of which are not part of the terms of the contract.”
It is clear to me that the above submissions of the respondent’s counsel is in tandem with the findings of the learned trial judge in his judgment at pages 243 – 244 of the record of appeal, thus:
”The plaintiffs herein alleged that they sold the shirts below its cost price. Besides their say so alone there is no evidence of that. They did not tender any of the books of the company to show that. They contended that as a result of the fall in price the contract became frustrated. It is not clear what aspect of the contract that was frustrated. The plaintiff was advanced more than N6 million in overdraft facility. That is a debt he owes and I do not see how that could be frustrated. There is the warehousing aspect of the contract. Under that aspect of the contract goods should be released in instalments to the plaintiffs as they pay for them. It is for the plaintiff to pay for the goods and for the defendant to release goods to the plaintiff to the amount paid for. How could that be frustrated by the fall in price”
The truth is that the plaintiff is working on the assumption that the goods must be released to him before payment is made. That is not what it is supposed to be. The plaintiff is supposed to pay the cost of the quantity of goods delivered to him pure and simple.
It appears however that the defendant released the goods to the plaintiffs before payment were made on the understanding that on the retirement of the cost of the goods delivered to them another batch will be released to them. They should be very grateful to the defendant for that. Even at that, their inability to retire the value of the goods released to them cannot and did not frustrate the contract of the plaintiffs’ obligations. The reason is that it was never in the contemplation of the parties that they shall share the profit and loss of the business.
The risk of price fluctuation was entirely that of the plaintiffs who expected to make profit from the transaction. In any event, as stated earlier, there is infact no proof that the goods were sold at an under value.
The failure of the plaintiffs to produce the books in Court shows that it will be against them if it was produced. See Section 149(d) of the Evidence Act.
It was also argued that time was of essence of the contract. I agree. It was for the plaintiffs to pay promptly for the goods before the obligation of the defendants to release more goods arise. By failing to pay for the goods they only have themselves to blame. I therefore find on this issue that the contract in this case was not frustrated and as such the plaintiffs remain liable to liquidate the debt to the defendant.
I agree to some extent, with the submissions of the respondent?s learned counsel, rehashed above and the findings of the learned trial judge also reproduced above. Those findings are unassailable and unimpeachable. I have no difficulty in affirming them. Therefore, they are each affirmed, accordingly because they are borne out of the pieces of evidence both parole and documentary exhibits placed before the Court below.
It seems to me that in the prosecution of their action at the Court below, the appellant took it for granted and were presumptuous that they were not to produce and proffer evidence in substantiation of their claim. The evidence proffered by PW1 at pages 217 – 214 of the record of appeal, indicates clearly that the first batch of the goods for which the respondent obliged the 1st appellant with the overdraft facility to enable him to so do, were actually purchased. The contention of the appellants is that the goods purchased by them were sold at an undervalue. Who was to prove that? The law is well settled to the effect that it is who asserts that has the burden to prove his assertion. That is the essence of the evidential statutory provisions in Sections 131, 133 and 136 of the Evidence Act, 2011. The law is simply put, that you prove what you assert. Omiyale v. Wema Bank (2017) 13 NWLR (pt. 1582) 300 at 325 – 326; University of Jos v. Ikegwuoha (2013) All FWLR (pt. 707) 641 at 655; Abubakar & Anor v. Joseph & Anor (2008) 6 SCNJ 226.
Furthermore, the law is well settled beyond reproach, to the effect that where there are conflicting pieces of evidence in any matter, a party whose evidence is supported by documentary evidence has more credibility. Eya v. Olopade (2011) 11 NWLR (pt. 1259) 505. Against the backdrop of the foregoing, it is amazing that the appellants thought that the burden of proving their allegation and assertion that their goods were sold at an undervalue, by substantiating the assertion with documentary evidence, such as their sales books, was not upon them. That submission, to my mind, was preposterous and unavailing, in the circumstance of this matter.
With respect to the appellants’ contention to the effect that the respondent delayed the release to them of the 37 cartons of packet shirts to them on 20/04/2002, it was incumbent on the appellant to prove that assertion. Sections 131, 133 and 136 of the Evidence Act, 2011. And what is worse, the deposition of the respondent’s witness DW1 – Maduako Onugha at page 137 of the record of appeal, wherein the release of the goods in question were detailed, was not in any way or manner contradicted by the appellants. I hold the firm view that the contention of learned appellant’s counsel at paragraphs 3.2.01 to 3.2.03, to the effect that it was the duty of the respondent to have given the appellants a notice to produce the proforma invoice of the goods supplied and released to the appellants by the respondent as most disingenuous. Was it the duty of the respondent to prove the appellants claim for them? Why did it not occur to the appellants that they needed to have armed themselves with the relevant documentary materials to substantiate their own claim? Did the appellants need the prodding of the respondent to have known the criticality and relevance of the proforma invoice relating to the receipts of the goods from the respondent? Perhaps, I need to reiterate what I had said earlier in this judgment, to the effect that, the appellants were presumptuous and preposterous in their attitude to the prove of their claim at the Court below.
In the end, it was the appellants who were negligent in the proof of their claim at the Court below. It is clear to me that the appellants took many things for granted, to their peril.
In sum, I resolve issues 1 and 2 in favour of the respondent.
With respect to issues 3 and 4, I have considered the appellants? contention, firstly, that the learned trial judge ought to have taken judicial notice of the charge and interest rates fixed by the Central Bank of Nigeria for financial institutions, such as the respondent, when they offer loan facilities to applicants such as the appellants herein.
The learned trial judge, on this question, in his judgment at page 245 of the record of appeal, found thus:
”In this issue, the plaintiffs complained of excessive charges. All through their pleading and evidence they did not indicate what constituted the charges, entries, interests, debits and what made them wrongful. Exhibit P13 made it clear that interest is chargeable at the rate of 28% per annum. It also provided for an availability fee of 3%. The defendant are (sic) entitled to debit the plaintiffs for these. In the absence of any charge or debit identified by the plaintiffs as unauthorized, I hold that they have failed woefully to prove any such debit.”
Learned appellants’ counsel wondered why the learned trial judge placed the onus of proving the alleged excessive charges in the appellants’ account with the respondent, on the appellants. He submitted at paragraph 3.3.02 of the appellants’ brief of argument, thus:
”At the trial, the 1st plaintiff’s/Appellant’s statement of account with the Defendant/respondent was tendered on the 16th day of September, 2009 as Exhibit D1 shown at page 225 of the records. With respect, the learned trial judge having received the said Exhibit D1 in the bosom of the Court and having taken judicial notice of the various regulations in the ‘Monetary Credit, Foreign Trade and Exchange Policy Guidelines’ of the fiscal years issued by the Central Bank of Nigeria had a duty to scrutinize the said Exhibit D1 vis-a-vis the said regulations in order to find out whether or not the said Exhibit D1 was in line with same. With respect, the learned trial judge was wrong in law when he placed on the plaintiffs/Appellants the burden to prove ordinary facts within the knowledge of the Court.”
Now, how was Exhibit D1 demonstrated vis-a-vis the Central Bank Regulations in question, by the appellants through the PW1 or through the cross-examination of the DW1 who tendered Exhibit D1 into evidence, to expose the excess charges, entries, interests and debits which were allegedly wrongful?
The law has remained well settled to the effect that documentary evidence, being a hanger upon which oral evidence is assessed, the latter is to throw more light on the former. Ndulue v. Ojiakor (2013) 8 NWLR (pt. 1356) 311 at 328; Egharevba v. Osagie (2009) 18 NWLR (pt. 1173) 299; Fashanu v. Adekoya (1974) 6 SC 83; Kimdey v. Mil. Gov. Gongola State (1988) 2 NWLR (pt. 77) 445.
Therefore, where a mass or any document is tendered into evidence and it is not demonstrated by the party who has the onus of proof placed upon him, as to the value of the document to his case, by oral evidence, no duty is placed on a trial Court to give any probative value to such a document. Belgore v. Ahmed (2013) 8 NWLR (pt. 1355) 60 at 100; Flash Fixed Odds Ltd v. Akatugba (2001) 9 NWLR (pt. 717) 46.
Indisputably, the appellants did not prove their allegations to the effect that excess charges, questionable interests, entries, interests and debits were made in Exhibit D1. Therefore, I agree with the learned trial judge in his finding that the appellants woefully failed to prove those allegations.
I am satisfied that the learned trial judge, meticulously and commendably evaluated the parole and documentary evidence placed before him. I find no perversity in his findings which were borne out of those pieces of evidence placed before him. Therefore, I have no reason to interfere and tamper with his findings. Instead, the findings made by his Lordship, apart from the one relating to Exhibit P12, that is, with respect to the 2nd appellant’s landed property, as allegedly having been donated vide a power of attorney, are affirmed.
In the end, the appeal, to my mind lacks merit and it is consequently dismissed.
N100,000 costs is awarded to the respondent against the appellants.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother TOM SHAIBU YAKUBU, JCA.
I agree with his reasoning and conclusions. The appeal is devoid of merit and I dismiss same.
The decision of Anambra State High Court delivered on the 17th of June, 2010 is affirmed.
I abide by the consequential order made as to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.
Appearances:
Onyechi Araka, Esq.For Appellant(s)
Emeka Anyaenetu, Esq.For Respondent(s)
