OLUWALOGBON MOTORS LIMITED & ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION
(2018)LCN/12096(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of October, 2018
CA/L/655/2018
RATIO
COURT AND PROCEDURE: THE EFFECT OF JUSTICE
“Their role is to assist the Court to arrive at the just or fair conclusion of the matter before Court. A counsel is to truly and really assist Court and not to mislead it. See AGORO VS. AROMOLARAN & ANOR (2011) LPELR-8906 (CA).
The Court is a temple and not a shrine. What goes on there is justice. The aim and focus of all participants or “worshipers” in the temple of justice is justice. Therefore either as litigants, Court or counsel, everyone should be interested in doing justice. In OKPE VS. FAN MILK PLC & ANOR (2016) LPELR-42562 (SC) 31, the Supreme Court held: ‘Furthermore, interest of justice connotes such interests, aspirations and or attempts to achieve justice in a given case or situation. The whole goal is the achievement of justice. Justice is fair and proper administration of laws whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principles of the law and evidence under consideration which as of right, entitle the successful party to judgment. That perhaps, is why they now say that justice is a three-way traffic. Justice to the plaintiff/appellant. Justice to the defendant/respondent and justice to the Court itself. The last one of course requires that parties to a legal tussle or their representatives should always come to Court with open mind sincerely of purpose diligent and coherent with unwavering confidence that the Court will at the end, deliver justice according to law.'” PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: THE BURDEN OF PROOF
“The issue has been effectively subsumed and resolved under issue 1 above and it is needless to repeat the position here. See: Ebba v. Ogodo (1994) 1 SCNLR, 72, Okonji v. Njokanma (1991) 2 NWLR (202) 131 @ 146, Anyaduba v. Nigeria Renowned Trading Company Limited (1992) 5 NWLR (243) 535 @ 561, Onochie v. Odogwu (2006) 2 SCNJ, 96 @ 117. For emphasis, the lower Court took into account that the burden of proof was on the Respondent and the required standard of proving a customer’s debt to a Bank/Respondent was on the balance of Probabilities or preponderance of admissible and credible evidence placed before it. Once more, the lower Court was right to have found that Exhibit P3 was sufficient proof of the sum claimed by the Respondent as the debt owed by the Appellants which entitle it to judgment in the case against the Appellants.” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. OLUWALOGBON MOTORS LIMITED
2. CHIEF S.O. BAKARE Appellant(s)
AND
NIGERIA DEPOSIT INSURANCE CORPORATION Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
As Liquidator to the defunct Metropolitan Merchant Bank Limited, the Respondent sued the Appellants before the Federal High Court, Lagos (Lower Court) for the recovery of debt owed by them from credit facilities of an insider loan arrangement granted and enjoyed by the Appellants. In a judgment delivered by the Lower Court on the 15th December, 2017, the claims of the Respondent were granted and this appeal resulted from the dissatisfaction by the Appellants with that decision. The Notice of Appeal, of five (5) grounds was dated 19th December, 2017 and in the Appellants’ brief filed on the 5th July, 2018, four (4) issues are distilled for decision by the Court as follows: –
a) Whether it did not amount to denial of the Appellants’ right to fair hearing by the Court relying solely on the Respondent’s audit report (Exhibit P3) despite the Appellants contradicting and opposing the said audit report. (Tied to Ground 1)
b) Whether it was appropriate, just and fair for the trial Court to have relied solely on the Respondent’s audit report (Exhibit P3) as basis for the 1st Appellant’s indebtedness to the defunct Metropolitan Bank Limited, considering the discrepancies, omissions and presumptive figures employed in the said audit report. (Tied to Grounds 1 and 2)
c) Whether the learned trial Judge took into consideration the required standard of proof in establishing a customer’s debt to a financial institution. (Tied to Ground 3).
The issues are adopted in the Respondent’s brief filed on the 14th August, 2018, in reaction to which, the Appellants’ Reply brief was filed on 4th September, 2018.
After a calm reading of the grounds of the appeal and the issues raised by the Appellants’ Counsel, the germane complaints in them are that the Respondent did not prove the sum claimed as required by the law and that the Lower Court wrongly relied solely on the Respondent’s Audit Report; as proof the amount of debt owed by the Appellants whose Audit Report was held to be inadmissible in evidence.
The crucial questions or issues that call for determination by the Court in the appeal are therefore:
(1) Whether the Lower Court relied solely on the Respondent?s Audit Report and was right to have done so in entering judgment for the Respondent.
(2) Whether the Respondent proved the sum claimed as required by law to be entitled to judgement in the case.
In the case of Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163 @ 181, the apex has stated that:-
“the law permits an appellate Court to ignore some or all issues raised in the briefs of argument and formulate its own issues, the way it deems them to be material once they are distilled from the grounds of appeal.”
See also Sha v. Kwan (2000) 8 NWLR (670) 685 @ 700, Onochie v. Odogwu (2006) ALLFWLR (317) 544, (2006) 6 NWLR (975) 65 and the more recent case of Governor Ekiti State v. Olubunwo (2017) 3 NWLR (1551) 1 @ 33 where the position was re-stated by the apex Court.
On these authorities, I intend to determine the appeal on the basis of the two (2) issues framed/reframed above, in line with the relevant submissions made in the parties’ briefs.
Issue 1: Appellants’ Submissions: –
According to Counsel, the position of the Lower Court was that only the Respondent’s Audit Report (Exhibit P3) was to be considered in proof of the indebtedness of the 1st Appellant to the Respondent, thus allowing the Respondent to be a judge over the Appellants in breach of their right to fair hearing. He said the Suit NO. FHC/L/CS/127/06 instituted by the Appellants is different and independent from the suit of the Respondent which gave rise to this appeal and the order in that suit for review, reconciliation and regularization of the 1st Appellant’s account by the Respondent did not mean that the review shall be absolute. Also, that since the Appellants raised objection to the Exhibit P3 on apparent inconsistencies highlighted therein, the Lower Court was wrong to have relied on it and rejected the Appellants’ Audit Report, (Exhibit D3) in coming to the decision on Appellants’ indebtedness.
The cases EFCC v. Dada (2016) 1 NWLR (1496) 567 @ 599, Ezechukwu v. Onwuka (2006) 2 NWLR (963) 151 @ 198-9 and Kotoye v. CBN (1989) 1 NWLR (1998) 419 @ 448 on the principle of fair hearing were cited and it is submitted that it amounts to denial of fair hearing as the Appellants are stopped from criticizing the Exhibit P3. Learned Counsel then argued that Exhibit D3 was signed contrary to the finding by the Lower Court and so was wrongly said to be inadmissible and that the issue was not if a loan is owed or has arisen, but whether the sum owed was justified by Exhibit P3, which is not ‘holistic’ or ‘all inclusive’ and had various flows arising from omissions, use of presumptive figures without reference to vouchers, receipts, ledgers or contract with the account officer of the 1st Appellant’s account. It is the further contention of Counsel that the Respondent did not prove the indebtedness of the Appellants in the sum claimed as was required in the cases of Bilante Int.l Limited v. NDIC (2011) 15 NWLR (1270) 407 @ 428-9, Phillips v. E.O.C. & Ind. Co. Ltd (2013) 1 NWLR (1336) 618 @ 641 and Habib Nigeria Bank Limited v. Gift Unique Nigeria Limited (2004) 15 NWLR (896) 408 @ 427, since the account officer was not called to give evidence on the operation of the 1st Appellant’s account.
According to Counsel, PW2 admitted under cross-examination that the facility was an over draft and not a loan and so it was wrong to charge compound interest not agreed to by the parties, relying on Ilokson & Company Nigeria Limited v. UBN Plc (2009) 1 NWLR (1122) 276, 312. Disagreement said to have been raised by the Appellants on Exhibit P3 was set out and it is maintained that based thereon, the Exhibit is a ‘copy and paste exercise’ which did not prove the debt claimed. Wema Bank Plc v. Osilaru (2008) 10 NWLR (1094) 150 @ 179-80 and Yusuf v. ACB (1986) 12 SC, 49 were cited on the law that a statement of account alone is not sufficient proof of debt and once more, it is said that Lower Court ought not to have relied on Exhibit P3 as proof of the Appellants’ indebtedness.
Respondent’s Submission:
Reference was made to pages 1326-7 of Vol. III of the Record of Appeal and it is submitted that the Lower Court did not hold that only Exhibits P3 was to be relied on in the determination of proof of the Appellants’ indebtedness to the Respondent. The case of Odunlami v. Nigeria Navy (2014) ALL FWLR (720) 1205 @ 1226 was cited on the requirement of the principles of audi alterem partem of fair hearing and it is submitted that the Appellants were afforded the opportunity to present their case and called witnesses at the trial. Newswatch Communication Limited v. Atta (2006) 12 NWLR (993) 144 @ 171 and N.I.C. v. Aminu (2012) 8 NWLR (1302) (no page provided) were referred to on application of the principle of fair hearing in judicial proceedings.
In further argument, it is said that Exhibit D2 was/is inadmissible since it was signed by ‘Alafia & Co.’ in line with law stated in Okafor v. Nweke (2007) 10 NWLR (1043) 521 and that the minor omissions in Exhibit P3 do not call for its total disregard for not being ‘holistic’, on the authority of Odunlami v. Nigeria Navy (supra). The cases of Ukeje v. Ukeje (2014) ALLFWLR (730) 1323 @ 1346 and Mbanefo v. Agbu (2014) ALL FWLR (724) 1 @ 71-2 on the burden of proof for the party who alleges or asserts a fact were cited and reference was made to portions of the Lower Court’s judgement where parties cases were considered by it before arriving at its decision; as the Court with the primary function of evaluation of the evidence adduced by the parties before it.
According to learned Senior Counsel for the Respondent, the Appellants’ evidence was discredited such that the Lower Court found it unreliable and that the facilities granted the Appellants was a loan arrangement on which they agreed that compound interest was to be charged.
In addition, that the Appellants failed to prove all the alleged defects or omissions in Exhibit P3 and that the facts in the case of Bilante Int.l Ltd v. NDIC (supra) are different from those of the Respondent’s case since evidence was called to prove the sum owed by the Appellants unlike in that case which was between a customer and a Bank whereas the Respondent is a liquidator of failed bank who applied, pursuant to Section 6 of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act (FBFMB Act) for the recovery of the debt owed by Appellants.
In the Appellants’ Reply brief, it is argued that the provisions of Section 6 of the FBFMB Act cannot be interpreted to foreclose the Appellants’ right to complain about the Respondent’s Audit Report as that would be contrary to the Constitution and that the omissions and discrepancies in Exhibit P3 made it inaccurate; reliance was placed on FBN v. Bankole (2014) 11 NWLR (1418) 337.
Other arguments in the Reply brief are mere repetitions of arguments canvassed in the Appellant brief on the points therein.
Resolution: –
The first point of complaint by Counsel for the Appellants is that their right to fair hearing was denied by the Lower Court when it held that only Exhibit P3 was to be and relied on same to determine the indebtedness of the Appellants to the Respondent. Before embarking on a determination of whether the Lower Court did what it is accused of, I should restate the law that the principle of fair hearing provided for and guaranteed in the provisions of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as altered) postulates that a person shall be afforded reasonable opportunity to freely present his own side of a case, without let or hindrance, by a Court or other Tribunal, established by law in the determination of his civil rights and obligations. The right guaranteed by the provision, which is sacrosanct, is that a person shall be afforded free and reasonable opportunity to be heard in the determination of his civil rights or obligations by a Court or other Tribunal established by law.
The right is one to be given an opportunity of a hearing in a case before a decision is reached or taken by a Court or other tribunal established by law, which affects a person and that in reaching or taking the decision, the relevant and material aspect of the case presented by a person, is adequately considered and taken into account. See: Kano N.A. v. Obiora (1959) SCNLR 577; Amadi v. Thomas Aplin Company Limited (1972) SC, 228; LPDC v. Chief Fawehinmi (1985) 1 NWLR (7) 300; Otapo v. Sunmonu (1987) 5 SC, 228, (1987) 587; Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (490) 657; Orugbo v. Una (2002) 9-10 SC, 61, Ogli Oko Memorial Farms Limited v. N.A.C.B. Limited (2008) 34 NSCQR (Pt. II) 157,; P.A.I. Incorp. V. S.L. Limited (2010) 6 NWLR (1186) 98; Military Governor, Lagos v. Adeyiga (2012) 2 MJSC (Pt. 1) 76. In the famous case of Kotoye v. CBN (1989) 1 NWLR (1998) 419, the basic attributes of the right to fair hearing were set out by Nnaemeka Agu, JSC as follows:
(i) That the Court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case,
(ii) That the Court or Tribunal shall give equal treatment, opportunity and consideration to all concerned.
(iii) That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing and
(iv) That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
See also Baba v. N.C.A.T.C. (1991) 7 SC SCNJ, 1, (1991) 7 SC (Pt. 1) 58, (1991) 5 NWLR (192) 388; Abiola v. FRN (1995) 7 NWLR (405) 1, Ovunwo v. Woko (2011) 6 MJSC (Pt. III) 83, F.C.S.C. v. Laoye (1989) 2 NWLR (106) 652 @ 75; Sam v. State (1981) NWLR (1622) 412 @ 439.
The complaint of the Counsel for the Appellants under the issue is that the Lower Court said only the evidence adduced by the Respondents; Exhibit P3 was to be used and relied on it solely, to determine the Appellants? indebtedness to the Respondent.
Counsel did not indicate in the arguments on the point, the portion of the judgement of the Lower Court contained in the Record of Appeal where it stated or found that only Exhibit P3 was to be used to determine the Appellants’ indebtedness. There is no such statement, finding or holding by the Lower Court in entire judgement which runs from page 1300-page 1346 of the Record of Appeal. Pages 1331-1332 mentioned at paragraph 5.29 on page 8 of the Appellant?s brief, relate to the Order in the Suit No. FHC/L/CS/127/2006 for the Respondent to review, reconcile and regularize the 1st Appellant?s account, which was said to be binding, and the admissibility of the unsigned Appellants’ Audit Report prepared by Alafin & Co., which was found to be inadmissible. It was in the assessment of the evidence adduced by both the Respondent, as claimant who bore the initial evidential burden of proof of the Appellants’ indebtedness, and the Appellants who disputed the sum claimed by the Respondent, that the Lower Court made reference to the Part II, paragraph 6(c) of the FBFMB Act and Exhibit P3 to be sufficient proof of the Appellant?s indebtedness to the Respondent, citing the cases of Akpadiaha v. Edukere (2014) ALL FWLR (723) 211 and Osagie v. Obazee (2014) ALL FWLR (750) 1344@ 1364-5.
It must be remembered that it is the primary duty, responsibility and function of a trial Court to assess and evaluate all the material evidence adduced by the parties by using the established criteria of placing it on the imaginary scale and weighing it to find out to which side of the scale the evidence tilts because it is heavier, not by the number of witnesses or amount of documents tendered, but the probative value of such evidence. Mogaji v. Odofin (1978) 4 SC, 91, (1978) NSCC, 275; Ewulu v. Nwankpu (1991) 8 NWLR (210) 487; Baba v. N.C.A.T.C. (supra); Solola v. State (2005) 5 SC (Pt. 1) 135; Awoyoolu v. Aro (2006) ALLFWLR (308), Okoye v. Obiaso (2010) 8 NWLR (1195) 145. In the discharge of its primary duty of evaluating evidence, a trial Court is at liberty to adopt any style and no hard and fast rule could be laid down to be applied in all cases, as to the mode or manner in which such evaluation must be carried out. Ayorinde v. Sogunro (2012) 5-7 MJSC (Pt. III). The crucial point is that the totality of relevant and material evidence placed before the trial Court is weighed on the different sides of the imaginary scale, assessed and probative value ascribed to each in line with established and recognized principles of law.
Factors to be considered in the determination of the probative value of a piece of evidence; oral and documentary, include:-
(a) Relevance,
(b) Admissibility of the evidence,
(c) Credibility of the evidence,
(d) Probability of the evidence,
(e) Conclusiveness of the evidence on the facts it relates to. Mogaji v. Odofin (supra), Onwuka v. Ediala (1989) 1 NWLR (1996) 182, Osigwe v. Unipetrol (2005) ALL FWLR (267) 1525; Nwokidu v. Okanu (2010) 3 NWLR (1181) 368.
In the process of evaluation of evidence a trial Court is expected to draw inferences and to make findings, express an opinion and pronouncement on which of the evidence of the parties possesses the probative value to satisfactorily prove the case as required by the law, on the preponderance of evidence or balance of probability, in civil cases.
The fact that a trial Court prefers a piece of or the evidence adduced by a party than or to that of the other party in making a finding and arriving at a decision, is evidence of proper and dutiful discharge of its primary function of evaluation of evidence rather than failure or refusal to consider the evidence of the other party. Rejection of evidence on ground of law or preference of evidence on ground of probative value in the assessment or evaluation of evidence by a trial Court does not constitute or amount to failure to consider such evidence that can found the allegation of denial of fair hearing in the case on ground of failure to consider a party’s case. The assertion or allegation of denial of fair hearing by the Appellants’ Counsel is unfounded and grossly misconceived since the Appellant’s were afforded the opportunity to be and were in fact, heard and the lower Court adequately considered the case presented by them in the judgement appealed against.
Learned Counsel has strenuously argued that the Appellant’s Audit Report, Exhibits D2 and D3 were signed by DW1 and so they are admissible in evidence but wrongly rejected by the lower Court.
DW1, who Counsel said signed the two (2) Exhibits, when asked under Cross-examination if he signed them, answered as follows at P1239 of the Record Appeal.: –
“D.W.1 shown Exhibit D3 it was prepared by our firm. My signature is not on these personally as a partner in accounting we signed our firm signature. Our stamp is not mandatory. Shown Exhibit D2 the name on the document is the name of the Manager Partner Hassan O. Alafia. I am not Hassan Alafia.”
Apparently, the claim by Counsel for the Appellants that DW1 signed Exhibits D2 and D3 has been debunked by the witness himself who has confirmed the finding of fact by the lower Court that the Exhibits were signed in the name of Alafia & Co. the firm which was said to have prepared them. The lower Court was right relying on the decision of this Court delivered on 9th December, 2013 in Appeal No. CA/L/178/2011, that the said Exhibits are not admissible in evidence since they were not personally signed by person who reviewed the account to which they relate. Even though the said Exhibits were admitted in evidence without objection from the Respondent, the lower Court had the duty and was right to have disregarded both in its judgement because the law is that in such situation, the Court should base its decision on only evidence which is admissible in law and ignore, discountenance or even expunge evidence which is inadmissible in law. Oladipo v. M.L.G.A. (2010) 5 NWLR (1186) 117, Suberu v. State (2010) 8 NWLR (1197) 586; Hyppolite v. Egharevba (1998) 11 NWLR (515) 598; Agbi v. Ogbeh (2006) ALLFWLR (329) 941, (2006) 11 NWLR (990) 65; Onochie v. Odogwu (2006) 6 NWLR (975) 65; Ogidi v. Egba (1999) 10 NWLR (621) 42, Olayinka v. State (2007) 9 NWLR (1040) 561.
It is also the complaint of Counsel for the Appellants that Exhibit P3 was not sufficient proof of the indebtedness of the Appellants to the Respondent as required in the case Bilante Int.l Limited v. NDIC and other cases (supra). The position of law stated in the case is that statement of account alone tendered by a Bank in a claim for recovery of a debt allegedly owed by a customer, is not sufficient proof, without oral evidence, of the amount shown therein as the debt owed by the customer.
In the case, the Bank; Orient Bank Limited which was later substituted with the NDIC, tendered the statement of account in ‘series 12′ without any oral evidence to demonstrate how the debt was owed by the Appellant and it was held by the apex Court not to be sufficient proof of the sum claimed as debt owed by the Appellant on its account with the Bank. In the Appellants’ case, it was the Respondent after the takeover of the defunct Metropolitan Merchant Limited as Liquidator, that filed the action for the recovery of the debt owed by the Appellants and not only put the Audit Report of the reconciled, reviewed and regularized account of the Appellants with the erstwhile Bank, but also called PW1, in particular, and PW2 to give oral evidence to demonstrate and show how the debt was owed by the Appellants. So unlike in the Bilante and other cases, the Respondent called oral evidence to support and in proof of the debt owed by the Appellants in sum claimed.
Inspite of alleged omissions and discrepancies in Exhibit P3 as regards the sum claimed, which were explained by PW1 in evidence, Exhibit P3 was the only admissible evidence placed before the lower Court and found to be credible and sufficient proof of the said sum.
In such a situation, where the evidence of a party on a fact in issue is the only legally admissible evidence before a trial Court and the evidence has not been effectively discredited under cross examination, it would clearly preponderate in support and proof of the fact and entitle the party to succeed on the balance of probabilities of the available evidence before the Court. Yesufu v. Adama (2010) 5 NWLR (1188) 522; F.I & P.D.C.N. Limited v. E.A.S. Limited (2006) ALLFWLR (341) 1332; Okorie v. Unakalamba (2013) LPELR-22508 (CA), Adelaja v. Alade (1992) 6 NWLR (245) 340; Dibiamaka v. Osakwe (1989) 1 ALLFWLR, 472. In the Appellants’ case, the finding by the lower Court that Exhibit P3 is sufficient proof of the debt and sum owed by the Appellants to the Respondent is supported by the provisions of Section 6 of the FBFMB Act, cited in its judgement, which says that: –
“In addition to any other primary source of evidence-(a) the examination reports and recommendations of the Central Bank of Nigeria or the Nigeria Deposit Insurance Corporation or their joint examination reports and recommendation; or (b) any report of the Central Bank of Nigeria or the Nigeria Deposit Insurance Corporation; or (c) the report of a person appointed by the Central Bank of Nigeria or the Nigeria Deposit Insurance Corporation (the Respondent herein), on the financial condition of a failed Bank (as in Metropolitan Bank) shall be sufficient proof that a loan or advance is owed to a failed bank and is due for recovery under this Act.” (Underlining supplied).
Although learned counsel for the Appellants has sought in this appeal to discredit the sum said to be owed by the Appellants as shown in Exhibit P3 by saying that the facilities granted to them were overdrafts upon which compound interest was charged, which was not agreed to by the parties, instead of simple interest, the offer letters for the facilities, expressly stated the rates of interest to be charged for them and all of them were freely agreed to and accepted by the Appellants. For instance, the initial offer letter dated the 4th November, 1997 for the sum of N30,000,000.00 was for a ‘Short Term Loan’ at the pricing of 1% (all charges inclusive). All the subsequent letters of offer were in the same terms which were accepted and freely agreed to by the Appellants.
The Appellants cannot now, seriously, be heard through counsel to contend that the rates of interest charged on the facilities were not agreed to by them or that the facilities were overdrafts and not loan since the law holds them firmly, bound by the terms and conditions of the facilities they voluntarily and freely agreed to and accepted in their agreement with the creditor. Jeric Nigeria Limited v. UBN Plc (2000) 15 NWLR (691) 447; Arjay Limited v. A.M.S. Limited (2003) 7 NWLR (820) 577; NICON Hotels Limited v. Nene D.C. Limited (2007) 13 NWLR (1051) 237, Babatunde v. B.O.N. Limited (2011) 18 NWLR (1279) 738. An admitted debtor, like the Appellants, who benefitted from a loan/overdraft facility from a Bank owes and has both the legal and moral duty and obligation; express or implied, to repay his debt as and when due in his own interest otherwise he stands the risk of accumulation of interests thereon for as long as it remains unpaid. See NBN v. Shoyoye (1977) 5 SC, 181, Udofel Nigeria Limited v. Skye Bank Plc (2014) LPELR-22742, Afribank Limited v. Alade (2000) 13 NWLR (685) 591.
Like I said before now, since Exhibit P3 was not effectively discredited under cross-examination of PW1 and PW2 at the trial, it was sufficient proof of the amount of debt owed by the Appellants to the Respondent on the balance of probabilities and preponderance of the evidence before the lower Court and that Court was right to have so held.
In the result, I find no merit on all the arguments by the Appellants? Counsel on the points under the issue which is resolved against the Appellants.
Issue 2: Whether the Respondent proved the sum claimed as required by law to be entitled to judgement in the case.
Appellants Arguments:
I have adequately reviewed the Appellants? submissions on the issue under the above issue 1 and as a reminder, they are to the effect that the Respondent did not prove the sum claimed as required in the Bilante and other cases.
Respondent’s Arguments:
The arguments by the learned SAN for the Respondent on the issue have also been sufficiently reviewed under issue 1 above to the effect that the facts of the Bilante and other cases are not applicable since the Respondent is a liquidator.
Resolution:
The issue has been effectively subsumed and resolved under issue 1 above and it is needless to repeat the position here. See: Ebba v. Ogodo (1994) 1 SCNLR, 72, Okonji v. Njokanma (1991) 2 NWLR (202) 131 @ 146, Anyaduba v. Nigeria Renowned Trading Company Limited (1992) 5 NWLR (243) 535 @ 561, Onochie v. Odogwu (2006) 2 SCNJ, 96 @ 117. For emphasis, the lower Court took into account that the burden of proof was on the Respondent and the required standard of proving a customer’s debt to a Bank/Respondent was on the balance of Probabilities or preponderance of admissible and credible evidence placed before it. Once more, the lower Court was right to have found that Exhibit P3 was sufficient proof of the sum claimed by the Respondent as the debt owed by the Appellants which entitle it to judgment in the case against the Appellants.
The issue is accordingly, resolved against the Appellants.
In the final result, for being bereft of merit, the appeal fails and is dismissed.
Consequently, the judgement delivered by the lower Court on the 15th December, 2017 in favour of the Respondent in Suit No. FHC/L/CS/812/2016 is hereby affirmed.
There shall be costs, assessed at Five Hundred Thousand Naira only (N500,000.00) awarded in favour of the Respondent for the prosecution of the appeal to be paid by the Appellants.
TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother GARBA J.C.A., granted me the privilege of reading in draft the leading judgment just rendered in this appeal.
My Lord has fully and sufficiently addressed the issues submitted for determination and I am in full agreement and adopt the Judgment as my own.
I just need to state that where parties agree to be bound by the terms of their agreement they must honour the terms without any attempt at finding escape route or exit from the agreement. Exhibit P3, the Audit report constitutes reliable pedestal upon which to concrete sufficient proof of debt and the sum owed by the Appellant to the Respondent.
I also hold that the appeal lacks merit and therefore deserves to be dismissed, it is hereby dismissed.
I affirm the Judgment of the lower Court delivered on the 15th day of December 2017 in suit No. FHC/L/CS/812/2016. I abide by the consequential orders made including the order on costs.
TOBI EBIOWEI, J.C.A.: I have had the privilege of reading in draft the judgment of my Learned brother, MOHAMMED LAWAL GARBA, J.C.A., just delivered affirming the decision of the lower Court. I cannot but agree with him to the effect that the appeal lacks merit and it is hereby dismissed. I also affirm the decision of the lower Court. I agree with the reasons, the conclusion and the order of my learned brother, MOHAMMED LAWAL GARBA, J.C.A.
Looking through the briefs filed by the counsel on behalf of the Appellants and the Respondent, I feel compelled to make one or two comments vis-a-vis, the duty of counsel while making a case for their clients. It is trite and settled that a counsel’s duty and responsibility is first and foremost towards the profession, the Court and the society before his client. That is why, lawyers are called ministers in the temple of justice.
Their role is to assist the Court to arrive at the just or fair conclusion of the matter before Court. A counsel is to truly and really assist Court and not to mislead it. See AGORO VS. AROMOLARAN & ANOR (2011) LPELR-8906 (CA).
The Court is a temple and not a shrine. What goes on there is justice. The aim and focus of all participants or “worshipers” in the temple of justice is justice. Therefore either as litigants, Court or counsel, everyone should be interested in doing justice. In OKPE VS. FAN MILK PLC & ANOR (2016) LPELR-42562 (SC) 31, the Supreme Court held:
“Furthermore, interest of justice connotes such interests, aspirations and or attempts to achieve justice in a given case or situation. The whole goal is the achievement of justice. Justice is fair and proper administration of laws whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principles of the law and evidence under consideration which as of right, entitle the successful party to judgment. That perhaps, is why they now say that justice is a three-way traffic. Justice to the plaintiff/appellant. Justice to the defendant/respondent and justice to the Court itself. The last one of course requires that parties to a legal tussle or their representatives should always come to Court with open mind sincerely of purpose diligent and coherent with unwavering confidence that the Court will at the end, deliver justice according to law.”
Why all this, one may ask? In my opinion, for counsel to submit that the interest charged by the bank on the transaction is not agreed upon by the parties, to say the least is misleading. It is clear from the evidence before the lower Court that the offer letter and subsequent documents state the interest rate to be charged. This was accepted by the Appellant. To now make an issue of that, beats my imagination. Since the parties to the contract agreed as to the interest to be charged, it is too late in the day to challenge it. The law is trite, which is, parties are bound by the terms of their contract.
See A.G. FERRERO & CO. LTD VS. HENKEL CHEMICALS (NIG) LTD (2011) 13 NWLR (PT. 1265) 592.
Counsel in conducting their client’s case should be duly guided by their role aspect out in the Rules of professional conduct and by a cloud of cases.
That is my little addition to the lucid judgment just delivered, by my learned brother, MOHAMMED LAWAL GARBA, J.C.A.
Appearances:
A.O. Akinrimisi, with him, A. Joseph-Esin and M.C. AgomuoFor Appellant(s)
E.K. Ukwueze with him, S.O. OnigbindeFor Respondent(s)
