AGUIWO JONATHAN MUOGBO v. EQUINOX MICROFINANCE BANK LIMITED (2019)

AGUIWO JONATHAN MUOGBO v. EQUINOX MICROFINANCE BANK LIMITED

(2019)LCN/12929(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/E/156/2010

RATIO

COURTS: A COURT IS BOUND STRICTLY BY ISSUES RAISED BY THE PARTIES AND EXCEPTIONS

Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distill such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.PER ABUBAKAR SADIQ UMAR, J.C.A.

BURDEN OF PROOF : DEFINITION AND NATURE
It is important to point out that burden of proof is the duty to offer evidence in a party?s assertions or counter-assertions, and evidence is the means whereby a Court is informed as to the issue of facts as ascertained by the pleading, that is, the testimony, oral, documentary or real, which may be legally received in order to prove or disprove some facts in dispute. SEE ZUBAIRU V MOHAMMED (2009) LPELR-5124 (CA) where this Court, Per Oredola JCA said:
By Sections 137 of the Evidence Act, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the Court will give judgment if no evidence is adduced on either side. The onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party and so the burden changes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with….PER ABUBAKAR SADIQ UMAR, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

AGUIWO JONATHAN MUOGBO Appellant(s)

AND

EQUINOX MICROFINANCE BANK LTD Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Anambra State High Court of Justice, Holden at Aguata, delivered on the 26th March, 2010, Per A.O. Okuma. The trial Judge delivered judgment in favour of the Respondent as Plaintiff in the Court below, however, the Appellant who was the Defendant in the same Court, being dissatisfied with the judgment, hence appealed to this Court vide a notice of appeal dated 25th day of May, 2010.

BRIEF FACTS OF THE CASE
The Plaintiff now Respondent commenced the action against the Appellant in 2002. The Respondent by its statement of claim dated 5th July, 2007, claimed for the following reliefs, namely:
A. An Order of Court mandating the Plaintiff to sell the Building contained in the Certificate of Occupancy dated 17/2/03 and Registered as 46/46125 Awka to recover principal and interest accruable as at the date of sale.
B. An order of any shortfall to be paid by the Defendant after an account has been stated.

?The crux of the Respondent?s case as Plaintiff in the Court below was that the Appellant by virtue of a pledge

agreement of 24/7/2003 obtained a loan from it and in return pledged his landed property subject of Certificate of Occupancy No. 1037 registered as No. 46 at page 46 in volume 125 of the lands Registry in the office at Awka with the bank and deposited the aforesaid certificate with the bank. The Respondent claimed that the Appellant failed to liquidate the sum of N1,200,000 borrowed as at 30th September, 2006, the principal and interest in the sum of N3,453.020.

The case of the Appellant on the other hand as can gleaned from his statement of defence dated 10th July, 2009 at page 31-32 of the record was that he obtained a loan in the sum of N1,000,000 and not in the sum of N1,200,000 as stated by Appellant although he the Respondent originally applied for a loan in the sum of N1,200,000. It is also the case of the Appellant that the Respondent did not disclose the interest to be paid on the said loan. The Appellant in his case at the Court below admitted depositing the said property as collateral for the overdraft. It is also claimed that in September, 2006, the Respondent wrote him saying that it has handed over the property to an estate agent for

immediate disposal of same and on 30/9/2006 the Plaintiff wrote him threatening to report him to the EFCC if he failed to repay back, an act which was carried out by the Respondent which led to his detention for 2 months at EFCC before he was mandated to pay the principal sum of N1,000,000. The Appellant claimed that he does not know how the Respondent arrived at the whopping sum of N3,453.020 since the interest rate was not disclosed to the him at the time of the said transaction.

At the conclusion of trial and address of counsel, the learned trial judge held at page 92 of the record that:
.in the circumstance of the findings of this Court above, it is hereby ordered as follows:
1. That prayer (a) and (b) of the Plaintiff?s claim are hereby granted.
2. That in consequence of the findings of the uncertainty of the amount indebted by the defendant that account of the defendant be first reconciled by both parties to determine the sum indebted and determine the sum each party upon the sell (sic) of the said building as earlier ordered.

In line with the rules of this Court, the parties filed and exchanged their

respective briefs of argument. The Appellant?s Brief of Argument is dated 13th of August 2010, filed on 16th of August 2010 and the Appellant?s Reply Brief dated 13th December, 2016 and filed on the same date. The Appellant?s brief was settled by O.J ENENMOH ESQ. while the Reply Brief was settled by D.E UMEGO ESQ. The Respondent?s Brief of Argument dated 18th May, 2016 and filed on 24th May 2016 pursuant to an order of this Honourable Court granted on the 24th November, 2016, deeming same as being properly filed and served was settled by UCHENNA NNOROM ESQ. The Appeal was taken on 16th January, 2019 wherein the counsel for the parties adopted their respective briefs of argument and made adumbrations on the issues and arguments in support of their positions in the appeal.

Learned counsel for the Appellant distilled the following issues for determination of this appeal to wit:
1. Whether the Court below was right in admitting a fact which was not pleaded by the Respondent in its judgment by admitting the account No 2622 which was not pleaded
2. Whether the Court below was right in basing its decision on the admission of the

defendant/appellant where the documentary evidence prepared by the plaintiff/respondent placed before him spoke for itself.
3. Whether the Court below was right in granting the prayers/claims of the respondent when the plaintiff/respondent failed to discharge the proof as demanded of it by the law in a civil case like this
4. Whether the Court below was right in granting a relief not sought for by the plaintiff/respondent.

Learned counsel for the Respondent on the other hand, distilled the following issues for determination of this appeal to wit:
1. Whether the admission of the Appellant of his indebtedness to the Respondent to the sum claimed needs further proof by the Respondent? (Grounds 1,2 and 3)
2. Whether the trial Court was right to have after its discretion granting the Respondent?s claims, directed both parties to reconcile account? (Grounds 4)

APPELLANT?S ISSUE ONE
On this issue, learned counsel to the Appellant argued that it is fundamental for administration of justice in civil cases, that the Court is limited and circumscribed in what it can grant or the awards it can make by the claim of the

plaintiff. He is not to be awarded more. Counsel referred this Honourable Court to the case of KOTOYE V C.B.N (2006) 2 L.C 625 particularly at 642 R. 24. Counsel relied on the case ofOVIAWE V INTEGRATED RUBBER PRODUCTS NIG. LTD. (1997) 3 SCNJ page 29 at 30 and 31 Ratios 1, 2 and 3 and argued further that it is also a principle of law that a trial judge must not import into his judgment issues not pleaded and that material facts which would permit the judge to apply the law to the facts must be pleaded.

Learned counsel submitted that the Respondent in its claim before the Court below stated that the Appellant is its customer and maintain account number 2493 and that the Respondent when mandated to provide the Appellant with his ledger on 10th February, 2009 brought another account number 2622. It is the submission of counsel that the Respondent merged the accounts i.e. Account numbers 2493 and 2462 and totaling the two accounts got different figure from what was in the claim.

Learned counsel to the Appellant further submitted that the Respondent?s statement of claim at the Court below had account number 2493 and total indebtedness of

N3,453,020 and that the Respondent on presentation of ledger of two accounts 2493 and 2622 had a total of N3,307,148.80. Counsel submitted that the trial Court in granting judgment to the Respondent referred to the strange account 2622.

On this issue, counsel on a final note submitted that the Court below erred in law by referring to account No 2622 in its judgment which was not part of the suit before it and that the trial Court ought to have discountenanced that particular account. Counsel urged this Honourable Court to resolve this issue in favour of the Appellant.

APPELLANT?S ISSUE NO. 2
It is the argument of counsel that Section 132(1) of the Evidence Act states clearly that when any judgment of any Court or any other judicial or official proceedings, or any contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or the term of such contract, grant or disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible.

Counsel submitted that the Court below erred in law by basing its judgment on the admission of the Appellant even after the Court stated clearly in his judgment at page 91 lines 22-26 of the record that ?a critical look at that Exhibits H, H1-H12 the ledgers for the two accounts did not disclose any lodgment of the sum of N1 million into the defendants account at the material time and did not disclose the withdrawal of the said sum by the defendant (now Appellant) from the said account from 22nd July 2003 when the alleged transaction did take place.

Counsel submitted further that the Bank Manager of the Respondent bank under cross examination at page 73 line 20 of the record of appeal testified before the Court below that the N1 million was credited into the account of the Appellant and that he, the Appellant withdrew same.

It is the submission of counsel that when the Appellant got the ledger exhibit H, H1?H12, he did file a motion for amendment of his statement of defence and written deposition and that the trial Court granted the application for amendment of the statement of defence but refused to grant that of the amendment of the written

deposition. Counsel referred this Honourable Court to page 83 line 12 of the record of appeal.

Counsel submitted that in the amended statement of defence particularly at page 63 and 64 paragraphs 2b, c, d, e, f, g and h of the record of appeal, the Appellant stated categorically that the Respondent did not give him the overdraft in cash and that it promised to lodge the overdraft into his account and further stated that he withdrew N150,00.00 on 9/9/2003 and repaid a total of N44, 100.00 on 10/9/2003, 11/9/2003, 15/9/2003 and 19/9/2003. Learned counsel to the Appellant submitted that the ledger which is exhibits H, H1- H12 spoke for itself and should be considered by the Court over and above the Appellant?s testimony.

Counsel relying on the case of SALAWAL MOTORS HOUSE LTD V LAWAL (2000) FWLR part 3 page 517 at 519 Ratio 4 argued that where a fact in a pleading has been admitted but documentary evidence tendered in support is at variance with such admission or admitted fact, a Court should no more rely on such admission.

Counsel finally urged this Honourable Court to resolve this issue in favour of the Appellant.

APPELLANT?S ISSUE NO 3
On this issue, learned counsel to the Appellant submitted that the Court below seriously erred in law by granting the prayers A and B of the paragraph 9 of the Respondent?s claim. Counsel argued that the law is trite that the burden of proof in civil cases is on the Plaintiff or the party who will loose a claim if no evidence is offered. Counsel relied on the case on the U.B.A LTD. V LOUIS (1994) 4 NWLR Part 336 at page 113 Ratio 1, Sections 135, 136 and 137 of the Evidence Act Cap 112 Law of the Federation of Nigeria 1990.

Learned counsel to the Appellant submitted that the Respondent in his claim prayed the Court to order that the property used as security for the alleged overdraft of N1 million be sold to recover the overdraft and interest accruable at the date of sale. Counsel submitted that the Respondent in its evidence failed to prove that the overdraft was advanced to the Appellant at all. Counsel referred this Honourable Court to the case of NEW BREED V ERHOMOSELE (2006) 26 NSQR 47 at 49 Ratio 2.

?It is the contention of the learned counsel to the Appellant that the Appellant on the other hand in his defence at the

Court below stated that he did not know how the Respondent arrived at the whopping sum of N3,453,020 which makes it a burden on the Respondent to prove how it arrived at the said sum and which it failed to do. Counsel referred this Honourable Court to page 35 paragraph 12 and page 64 paragraph 2n(sic) of the record.

Counsel submitted that in PW1?s evidence, the bank manager at page 73 line 20 of the record of appeal stated that the Respondent credited the Appellant?s account with the sum of N1 million which the Appellant withdrew, but the Court, clearly observed from the ledger which is exhibits H, H1- H12 particularly H9 at page 91 lines 22-26 of the records of appeal that the Appellants account did not disclose any lodgment of the sum of N1 million nor the withdrawal of the same by the appellant. Counsel submitted further that the Appellant in his amended statement of defence at paragraphs 2b, c, d, e, f and g at pages 63 and 64 of the record stated that the Respondent did not give him the N1million overdraft and despite this finding, the trial Court went ahead to grant the claim of the Respondent when the latter could not discharge the onus placed on him by law. ?

Counsel finally exhibits H, H1 to H12 (especially exhibit H9) urged this Honourable Court to resolve this issue in favour of the Appellant.

APPELLANT?S ISSUE NO. 4
On the final issue formulated by the Appellant, Counsel submitted that the lower Court erred in law by granting the relief not sought by the parties and that the trial Court in its judgment at page 92 lines 10-14 stated that ?in consequence of findings as to the uncertainty of the amount indebted by the defendant, (now applicant) that account of the defendant be first reconciled by both parties to determine the sum indebted and the sum due to each party.

Counsel argued that Order 4 Rule 5 of the Anambra State High Court Rules 2006 states clearly that in all cases where plaintiff in the first instance desires to have an account taken, the originating process shall so state. Counsel submitted that the learned trial judge went an extra mile in granting what the parties did not ask for and that the intendment of Order 4 Rule 5 was for the account to be reconciled before the final decision of the Court was given. Counsel also argued that Order

12 Rule 2 and 3 of the High Court of Anambra State Civil Procedure Rules 2006 states that an application for account should be made by the Plaintiff during the trial to be supported by an affidavit but the Plaintiff/Respondent did not comply with the provision and the trial Court did not make the order for account during the trial of the suit as required by Order 12 Rule 2 of the High Court of Anambra State Civil Procedure Rules 2006.

It is the final submission of Counsel to the Appellant on this issue that the trial judge gave a judgment and asked for account reconciliation, an order which was not part of the relief claimed by the Respondent in relief B of its statement of claim. Counsel referred this Honourable Court to page 4 paragraph 9b of the records and also to the case of KOTOYE V C.B.N.
Counsel urged this Court to resolve this issue in favour of the Appellant.

RESPONDENT?S ISSUE NO. 1
With respect to the first issue formulated by counsel to the Respondent, counsel argued that going by the provisions of Section 131(1) of the Evidence Act 2011 Cap E.14, the burden of proving that the indebtedness of the Appellant to

the Respondent to an amount in the sum of N3,453.020 only lie on the Respondent. On this note, counsel argued further that also going by the provisions of Section 123 of the same Evidence Act, that the burden which lie on the Respondent at trial became removed or minimized when the Appellant in paragraph 2(1) of the statement of defence admitted to paying some of the loan, which both parties agreed same will be received as overdraft in their pledge agreement. Learned counsel to the Respondent submitted that the Appellant cannot refute receiving the loaned sum of money as contended by him in paragraph 2(d) of his amended statement of defence, when he had admitted to repaying same in paragraph 2(i). This according to the Respondent counsel amounts to approbating and reprobating which cannot be done by the Appellant at the same time.

Counsel submitted that the Appellant only refuted his indebtedness to the Respondent to the sum of N3, 454,020 only on the grounds that he had liquidated part of the loaned sum, and admitted to his confusion or ignorance of how the N1 million he had borrowed had yielded up to the sum of money, a confusion which according to the

counsel was cleared by the Respondent through the evidence of PW1 that same was a combination of the loaned sum with accrued interest. Counsel made reference to paragraph 2(i) and (k) of the Appellant?s amended statement of defence at page 64 and 74, line 14 of the record of Appeal. Counsel submitted further that the Respondent based its claim on ledger No 2493 which the Appellant admitted to.

Flowing from the above learned counsel to the Respondent argued that it is trite law that there is no more dispute between parties on matter which have been admitted on the pleadings and generally evidence on such admitted matters is to be excluded. Counsel referred this Honourable Court to the case of ADEDEJI V OLOSO (2007) 5 NWLR Pt. 1026, Page 133 at 159 Para H.

Counsel argued that it is an established principle of law that it is not every error in the judgment of a trial Court that will lead to its reversal on appeal and that it is only when such error is substantial and had occasioned a miscarriage of justice that an Appellate Court is bound to interfere. Counsel referred this Honourable Court to the case ofOBASI ONYENYE V STATE (2012) 15 NWLR PT.

1324 Page 620, Para B and Page 611 Para G. It is the contention of learned counsel to the Respondent that even if the trial judge had made reference to Ledger No 2622 in its judgment, it is to be noted that same was introduced by the Appellant in his evidence before the trial Court. Counsel contended further that the Appellant has not shown how that reference to ledger 2622 had occasioned a miscarriage of justice to him and more so as same was not relied upon by the trial Court in arriving at its decision and thus had no effect on the judgment of the trial Court.

It is the submission of counsel that the Respondent did resolve the burden of proving how the sum of N1 million borrowed by the Appellant accrued to an amount in the tune of N3, 452, 020 only through the evidence of PW1 before the trial that same was a combination of the loan sum and interest accrued thereon.

Counsel relying on the case of OMISORE V AREGBESOLA (2015) 4 W.R.N PAGE 67-68 LINES 15-30 argued that it is an old established principle of law that facts pleaded but not supported by evidence is deemed abandoned and same cannot speak for the pleader unless the adverse party admits them.

Counsel submitted that with the amended statement of defence of the Appellant duly granted by the trial Court and the refusal of the trial Court in granting the amendment of the Appellant?s evidence on oath renders the said amendments inadmissible and abandoned as same were not supported by any evidence. Finally, counsel urged this Honourable Court to resolve this issue in favour of the Respondent.

RESPONDENT?S ISSUE N0. 2
On whether the trial Court was right to have after its decision granting the Respondent?s claims, directed both parties to reconcile account, counsel argued that although it is trite law that the Court do not have the requisite jurisdiction to give a party a relief he did not claim for, there are situations in which Courts have allowed consequential orders to be made. Counsel submitted that a consequential order is necessary so as to give effect to the judgment delivered; make meaningful an order granted; to put an end to litigation by avoiding future actions and that the order is inevitably consequential, necessarily flowing naturally and directly from the substantive judgment or order made, then it

can be granted without it having been asked for by any party to the suit. Counsel referred this Honourable Court to the case of BUWANHOT V BUWANHOT (2011) ALL FWLR PT. 566, PG 552 AT 560 Paras. G-H.

Flowing from the above, counsel submitted that the Orders of the trial Court after delivering its decisions granting the Respondent?s claims were consequential orders flowing directly and naturally from the final decision of the trial Court and it need not be claimed specifically by the Respondent as being canvassed by the Appellant.

Counsel submitted further that Order 4 Rule 5 of the Anambra State High Court Rules 2006 has no bearing on the findings of the trial Court and its attendant and consequent orders and same cannot apply. Counsel submitted that the Respondent had claimed for an order for any shortfall to be paid by the Defendant after an account has been stated as part of its relief before the trial Court.

Finally, counsel urged this Court to resolve this issue in favour of the Respondent by holding that the orders of the Court for a reconciliation of Appellant?s account was a consequential order flowing naturally from the

findings of the trial Court and final judgment which the respondent need not specifically ask for same.

APPELLANT?S REPLY TO SUBMISSIONS AND ARGUMENTS OF THE RESPONDENT
In response to all the issues, submissions and arguments canvassed by the Respondent, the Appellant in his reply brief submitted that the Appellant never in his evidence at any time agree with the Respondent to admit at the hearing or before the hearing of the case to the indebtedness of the sum of N3, 453, 020 to the Respondent as stated in the Respondent?s brief at page 6 paragraph 4.05.

Counsel further submitted that the trial Court never took into consideration of the second limb of Sec. 123 of Evidence Act Cap. 14, 2011 where it is provided that the Court may in its discretion, require the facts admitted to be proved, otherwise than such admission. On this note, counsel submitted that exhibits H, H1 to H12 (especially exhibit H9) tendered before the Court by the Appellant was a proof against the admission of an advancement of any loan by the respondent to the Appellant. Same exhibits which according to counsel were prepared by the Respondent and directly under its custody.

It is the submission of counsel to the Appellant that the best evidence in the circumstances is documentary evidence and since exhibits H, H1 to H12 (especially exhibit H9) being the documents prepared by the Respondent is the best evidence to be relied on in this case and it supersedes the oral testimony of the parties.

Counsel also argued relying on the cases of NWAGA V REGISTERED TRUSTEE RECREATION CLUB (2004) FWLR (PT. 190) 1360, RATIO 2 AND 6; CHIROMA V SUWA (1986) 1 NWLR (PT.19) 751 that on the standard of proof in civil cases, a party is required to prove his case on the balance of probabilities and that the onus is on the Plaintiff to adduce credible evidence to prove his case before it becomes necessary for the Defendant to call evidence to rebut the Plaintiff?s assertion. Counsel argued further that the law is trite that weaknesses in the Defendant?s case do not prove the Plaintiff?s case.

Counsel submitted that the Plaintiff pleaded in paragraph 8 of its statement of claim that as at 30/9/2006, the Appellant was owing it an amount to the tune of N3,453,020 being principal and interest on the loan but

that in evidence, PW1 never gave evidence to the sum which the Appellant is allegedly owing the Respondent bank. Counsel referred this Honourable Court to Page 3 Paragraph of the records and page 18 lines 15 and 16 of the records. Flowing from the above submissions, counsel submitted further that the failure of the Plaintiff to give evidence of the sum of money it is claiming to be the alleged loan or overdraft it granted to the Appellant shows that the Respondent never advance any loan or overdraft to the Appellant.

It is the contention of counsel that the failure of the Respondents witness to challenge or controvert the piece of evidence of the Appellant that the Appellant does not know how the N3, 453, 020.00 accrued is very material to this case and mere statement by PW1 under cross-examination by the defence counsel is not enough for the burden of proof in that regard to shift to the Appellant.

Counsel referred submitted that PW1 under cross examination said that the money accrued from the interest rate of 21% which was not pleaded by the Respondent and that PW1 in his evidence could not explain whether the said

interest was a compound interest or a simple interest.

Counsel submitted further that the failure of PW1 to prove to the Court how the said money claimed by the Respondent accrued is fatal and the Respondent cannot just rely on the weaknesses of the defence to prove its case.

Counsel submitted that the order of the trial Court that the consequent upon the finding as to the uncertainty of the amount indebted by the Defendant, that the account of the Defendant be first reconciled by both parties to determine the sum indebted and sum due to each party upon the sale of the said building is open ended and leads to nowhere as the Court never adverted its mind to a situation where there is no consensus by the two parties over the outcome of the said reconciliation of account, how the said disagreement will be resolved minding the fact that the lower Court being functus officio in the case and can no longer sit over it. Counsel submitted further that the only option that will be opened is to approach the Court to determine this and that the instant case does not fall within the purview of cases where the Court is empowered to make consequential order

for account because the conditions necessary for make such order is lacking. On a final note, counsel urged this Court to resolve all the issues raised in favour of the Appellant.

RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the brief of arguments filed by both parties, the Appellant?s Reply Brief as well as the issues distilled for determination across the divide. I have also studied critically the entire pleadings of both parties including the evidence led by parties and all the exhibits tendered in the course of trial. I have considered the issues formulated by both parties along with the grounds of appeal.

Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.

In effect of the above, I consider the issue stated below as being apt and germane for the determination of the instant appeal.

ISSUES FOR DETERMINATION
?Whether in consideration of the totality of evidence before the lower Court, the Respondent had sufficiently established the Appellant?s indebtedness to be entitled to the judgment in its favour.?
It is important to point out that burden of proof is the duty to offer evidence in a party?s assertions or counter-assertions, and evidence is the means whereby a Court is informed as to the issue of facts as ascertained by the pleading, that is, the testimony, oral, documentary or real, which may be legally received in order to prove or disprove some facts in dispute. SEE ZUBAIRU V MOHAMMED (2009) LPELR-5124 (CA) where this Court, Per Oredola JCA said:
?By Sections 137 of the Evidence Act, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the Court will give judgment

if no evidence is adduced on either side. The onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party and so the burden changes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with?

Flowing from the above, it is beyond doubt that the Respondent as Plaintiff in the Court below had the initial onus to establish that the Appellant is indeed indebted to it by establishing that truly an amount to the tune of N1,000,000.00 (One Million naira) was a matter of fact advanced to the Appellant.

It is trite that where a case is brought before the Court by pleadings and issues are joined on the pleadings filed by both parties, issues must be tried as settled in the pleadings. SEE WIRI & ORS. V. WUCHE & ORS (1980) LPELR-3498 (SC) AT 18 (A).

It is also trite that parties and the trial Court are bound by the pleadings and issues raised by the parties in their pleadings and the evidence led. SEE ETIM V CLASEN VENTURES & ORS (2011) LPELR-3827 (CA) AT 18-19 (G-D).

Flowing from the above, I shall seek to examine the relevant averments in the pleadings of the parties before this Honourable Court vis–vis the evidence adduced at trial to ascertain whether the Appellant is as a matter of fact indebted to the Respondent and if yes, the extent of his indebtedness. The Respondent in paragraphs 3, 4, 5, 6, 7 and 8 of its statement of claimed at page 3 of the Record of appeal before this Honourable Court averred that:
3. ?On or about the 22nd of July, 2003, the defendant applied for a loan of N1.2 million from the Plaintiff and offered as collateral the Certificate of Occupancy No. 1037 registered as No. 46 Page 46 in Volume 125 of the Lands Registry in the Office at Awka.?
4. ?Following the inspection of the Landed property and titled document the Plaintiff agreed to advance to the defendant a loan of N1,000,000.00 with the document of Title (C.of O) as security for the Loan.?
5. ?The parties entered into a written Agreement titled pledge Agreement on 24/7/03 whereupon the defendant collected the said loan and surrendered the Certificate of Occupancy to the Building.?

6. ?Part of the said Agreement at paragraph 9 thereof read that if after six months the pledger failed to pay the loan or interest, the Plaintiff as pledgee shall have the Right to sell or rent out the Building to recover the due debt.?
7. ?The defendant has failed to honour his obligation under the Agreement, despite repeated oral and written demands.?
8. ?As at 30th Sept. 2006 at close of business the defendant was owing he plaintiff, principal and interest of N3, 453.020 and same was made known to the defendant by a letter of demand.?

The Appellant on the other hand in paragraphs 1, 2(a-h) of his Amended Statement of defence at pages 63-65 of the Records averred that:
1. ?The defendant admits paragraphs 1, 2, 3, 4 and 6 of the statement of claim.
2. ?The defendant denies paragraph 5, 7 and 8 of the Plaintiff?s statement of claim and will at the trial of this suit put the plaintiff to his strict proof hereof. In further answer to the said paragraph, the defendant states that:
a. He maintains an account with the account No. 2493 with the plaintiff.
b. He applied for the overdraft of N1.2 million on 22/7/2003.

c. That plaintiff on 24/7/2003 approved a loan of N1,000,000.00 (one million) naira for the defendant but did not disclose any interest rate.
d. The plaintiff never gave any money directly to the defendant
e. The plaintiff told the defendant that the overdraft will be lodged into his account.
f. The defendant never collected any money from the said account until 9/9/2003 when the defendant collected N150,000.00 in cheque No. 76653 as shown in the ledger account of the plaintiff which is exhibit H8 before the Court.
g. The defendant after the withdrawal of N150,000.00 paid back N44,100.00 on 10/9/03, 11/9/03, 15/9/03 see Exhibit H8.
h. That after the withdrawal of N150, 000.00 of 9/9/03 the defendant did not withdraw any money again before the plaintiff started writing letters of demand him to the applicant to pay back the overdraft of one million naira (sic).

?The Respondent in a bid to discharging the onus of proof imposed on it by law called one C. I. Uzor who testified as PW1 who tendered an Application for loan/overdraft form with receipt of overdraft/loan form filed by the Defendant and both

were admitted and marked as Exhibit A and B respectively. The same witness tendered the Pledge agreement between one Mr. Jonathan Muogbo and the Plaintiff dated 24/7/2003, Customary Right of Occupancy Certificate issued to Mr. Aguiwo Jonathan Muogbo by Orumba North Local Government Authority registered as No. 46 at page 46 in volume 125 and both were admitted and marked Exhibits C and D respectively.

The Appellant on the other hand testified in his defence as DW1, and tendered some exhibits and most importantly a letter from Equinox Microfinance bank Ltd. With 12 paged handwritten ledger from 7/7/2001 to 6/10/2006 and all were admitted in evidence as Exhibits H, H1 to H 12.

After the conclusion close of evidence, the learned trial judge in his judgment at page 91 of the record observed that:
?The plaintiff in this case did not even help matters but had its cause facilitated by the admittance of indebtedness and deposition of collateral with the plaintiff?s banks. This is much so, as the ledger for accounts No. 2493 and 2622 held by the defendant with the plaintiff?s bank did not seem to confirm the plaintiff?s case and creates doubt as

to the exact sum indebted to the plaintiff.

The learned trial judge after evaluating the evidence adduced went further in the same page of the record to hold that:
“A critical look at that Exhibits H, H1-H12 the ledgers for the two accounts did not disclose any lodgment of the sum of N1 million into the defendants account at the material time and did not disclose the withdrawal of the said sum by the defendant (now Appellant) from the said account from 22nd July 2003 when the alleged transaction did take place.?

The question here is was the Respondent able to discharge that burden of proof to have judgment delivered in its favour in the face of the fact that the ledgers for the two accounts did not disclose any lodgment of the sum of N1 million into the Appellants account at the material time and did not disclose the withdrawal of the said sum by the Appellant.

I am of the considered opinion that the trial Court went judicially astray when he granted the reliefs of the Respondent based on the admittance of the Appellant in the Amended statement of defence in paragraphs 2(b) (c) (f) (k) that the Appellant admitted obtaining the loan.

It is the law that for the court to determine the question of admission, the entire pleadings of the parties must be read together and not take each averment in isolation of the other.

I carefully perused the said Amended Statement of defence and said admitted paragraph, a bulk of the averments already reproduced above, and I find no basis for holding that the Appellant admitted that he was indebted to the Respondent

It is not in dispute between the parties that the Appellant applied for a loan in the sum of N1, 200,000.00 for which N1, 000,000.00 was approved, the area of disagreement was whether after the approval and the deposit of collateral documents, the Respondent fulfilled its own part of the contractual obligation by depositing the said sum into the account of the Appellant. There is a difference between approval of loan and actual remittance of the approved sum.
The contract as a matter of fact does not stop or deemed completely performed on approval and the Respondent in this regard had the duty to show that:
1. After the approval, the sum agreed was deposited into the account of the account of the appellant

2.The respondent withdrew the said sum through a mode such as cheque or transfer.
As a matter of fact, mere tendering of the statement of account alone will not suffice in the absence of the above conditions. The Respondent failed woefully in this regard and for this reason, it cannot be said that the onus of proof had been discharged by them. On the prescribed manner in which a financial institution should establish this kind of claim, this Court in WEMA BANK PLC V OSILARU (2007) LPELR-8960 (CA), per Okoro, JCA (as he then was) held:
?It is trite that a bank statement of account is not sufficient explanation of debit and lodgments in a customer?s account to charge the customer with liability for the overall debit balance shown in the statement of account.
Any bank which is claiming a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall debit balance was arrived?.?

Pleadings by our law as rightly observed by the trial Court, binds the parties and any averment not supported by credible evidence goes to no issue. I am of the

considered opinion that considering the totality of evidence before the Court, the Respondent did not support its averment in paragraph 5 of its Statement of Claim with any credible evidence.

The law is trite that the onus probandi is on the party who would fail if no evidence is given in the case. The Respondent did not discharge the onus and its claims are bound to fail in the absence of evidence. I hereby, resolve the sole issue formulated by this Honourable Court in favour of the Appellant. I am of the considered opinion that since the main reliefs sought by the Respondent has failed, going into the validity or otherwise of the consequential granted by the Court would only amount to an academic exercise.

On the whole, I hold that this appeal is meritorious and it is hereby allowed. Accordingly, the judgment of the trial Court Per A.O. Okuma, delivered on the 26th day of March, 2010 in Suit No. AG/51/2007: EQUINOX MICRO FINANCE BANK LTD. V AGUIWO JONATHAN MUOGBO is hereby set aside. The Respondent claim is hereby dismissed. I award the sum N100, 000.00 as cost in favour of the Appellant.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: As a tale of the unexpected, this appeal is in law a very bad process. The Respondent, which is a Bank and whose responsibility includes the collection and disbursement of money goes to Court without evidence of its claim. It is strange that a party who is in custody should approach the Court with an allegation that a man, who comes to collect, actually collected/withdrew money from it and it has no cogent records in support of the assertion.

The Respondent, by its status as a financial institution, failed to discharge the initial burden of proof placed on it to establish its assertion. For this reason, the trial Court ought not to have granted its claims.

I agree with the lead judgment. The appeal is meritorious and should be allowed. I adopt the orders made as to cost by my learned brother ABUBAKAR SADIQ UMAR JCA who prepared the lead Judgment.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA. I agree with his reasoning and conclusion that the appeal is meritorious and is hereby allowed. I abide by the consequential orders made therein.

Appearances:

D.E Umego, Esq.
For Appellant(s)

Uchenna Nnorom, Esq.For Respondent(s)

Appearances

D.E Umego, Esq.For Appellant

AND

Uchenna Nnorom, Esq.For Respondent