AIYETORO COMMUNITY TRADING COMPANY LTD. & ANOR v. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD.(2002)

AIYETORO COMMUNITY TRADING COMPANY LTD. & ANOR v. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD.

2002)LCN/1231(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of June, 2002

CA/B/22/2000

 

JUSTICES

RAPHAEL OLUFEMI ROWLAND   Justice of The Court of Appeal of Nigeria

BABA ALKALI BA’ABA   Justice of The Court of Appeal of Nigeria

SAKA ADEYEMI IBIYEYE   Justice of The Court of Appeal of Nigeria

Between

 

  1. AIYETORO COMMUNITY TRADING COMPANY LTD.
    2. REGISTERED TRUSTEES OF THE HOLY APOSTLES Appellant(s)

AND

NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD. Respondent(s)

BA’ABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court, holden at Okitipupa, in the Okitipupa Judicial Division, delivered on 4th May, 1989. The respondent was the plaintiff at the lower court, where it instituted an action against the appellants, who were the defendants, claiming against the appellants as per paragraph 13 of the amended statement of claim as follows:-
“Wherefore the plaintiff claims:-
(i) Payments of all such monies due to the plaintiff and such costs as would be payable if this claims were the only relief granted.
(ii) Foreclosure or sale in default of payment of the said three landed properties namely:-
(a) A piece of land along Igbokoda/Okitipupa road in Igbokoda measuring 4283.408 square metres covered by a deed of conveyance dated 15th February, 1978, registered as No. 49 at page 49 in volume 62 at the Lands Registry at Akure.
(b) A piece of land along Igbokoda/Okitipupa road in Igbokoda Measuring 7053.382 square metres covered by a deed of conveyance dated 15th February, 1978 and registered as No. 50 in volume 62 at the Lands Registry at Akure.
(c) A piece of land at No. 39, Obiri Street, Okitipupa, measuring 1150.46 square yards covered by a deed of conveyance dated 29th January, 1969 and registered as No. 11 at page II in volume 1109 at the Lands Registry at Akure.
(iii) Delivery by the 1st defendant to the plaintiff of vacant possession of the mortgaged properties that is:
(a) A piece of land along Igbokoda/Okitipupa road in Igbokoda, measuring 4283.408 square metre covered by a deed of conveyance dated 15th February, 1978 and registered as No. 49 at page 49 in volume 62 at the Lands Registry at Akure.
(b) A piece of land along Igbokoda/Okitipupa road in Igbokoda measuring 7053.383 square metres covered by a deed of conveyance, dated 15th February, 1978 and registered as No. 50 at page 50 in volume 62 at the Lands Registry at Akure.
(c) A piece of land at No. 39, Obiri Street, Okitipupa measuring 1150.46 square yards covered by a deed of conveyance dated 20th January, 1969 and registered as No. 11 at page 11 in volume 1109 at the Lands Registry at Akure.
(iv) Costs.
(v) Interest on the said sum of N1,852,342.71 (one million eight hundred and fifty two thousand, three hundred and forty two naira, seventy one kobo) from 1st January, 1986. until judgment at the rate of 9% per annum (as required by the Central Bank of Nigeria’s recent guidelines) until the whole debt is fully paid.”
The appellants denied liability and counter-claimed against the respondent as follows:-
(a) An Order setting aside the illegal and unconstitutional auction/sale of its properties on 28th May, 1985 and 29th May, 1985 by the plaintiff through auction service, 364, Herbert Macaulay Street, Yaba, Lagos.
(b) The defendants counter-claim for N350,000.00 being the real value of their landed property illegally sold by public auction by the plaintiff in accordance with its “Auction Sale Notice” published in the Daily Times of 20th May, 1985, at page 6 thereof.”
(c) N500,000.00 being the real and or market value of the five (5) trawlers seized and illegally sold by the plaintiff without due process of law.
(d) N300,000.00 being special and general damages for the loss which the 1st defendant – counter-claimant sustained and arising and or caused by the negligence of the plaintiff when it delivered five (5) trawlers between 1976 and 1977 respectively under the loan agreement of 8th October, 1975 and within a year the said trawlers developed serious engineering problems which adversely affected the fishing operations and the income of the 1st defendant.
Alternative claim
(A) N200,000.00 damages for unlawfully denying the defendants/counter-claimants-possession, occupation and use of their petrol station and the house thereon and other appurtenances and or facilities on the land at Broad Street, Igbokoda – since 28th /29th of May, 1985.
(B) N150,000.00  damages for unlawfully denying the counter claimants (defendants) possession and commercial use of the property seized on or about the 28th/29th of May, 1985, at No. 39 Obiri Street, Okitipupa.
(C) N3,000,000.00 damages for the unlawfully seizure of the 1st defendant/counter-claimant trawlers on or about the 28th/29th of May, 1985 which said trawlers have deteriorated badly and are now a total wrecks.”
Pleadings were ordered, filed, exchanged and subsequently both the statement of claim and defence were amended by the parties. After the parties called witnesses in support of their respective cases and address by their counsel, the learned trial Judge in a reserved judgment, found in favour of the respondent and dismissed the counter-claim. At page 238 of the record the learned trial Judge inter alia, held;
“It is therefore, the order of this court that judgment is entered for the plaintiff against the defendants for the sum of N1,230,603.26 minus the N35,000.00 already repaid i.e. N1,195,603.26 9% interest calculated from the date this case was filed up to date i.e. between 17/7/89 – 4/5/89 and the counter-claim is hereby, dismissed.
The plaintiff bank is hereby granted the court’s order sought to sell the landed property, subject matter of the equitable mortgage to satisfy the 1st defendant’s debt in this case.”
Dissatisfied with the judgment, the appellants filed a notice of appeal containing 9 grounds of appeal, which is at pages 239-248 of the record. On 17/12/2000, this honourable court granted leave to the appellants to amend the grounds of appeal by deleting the original grounds 2 and 3 and renumbering the remaining grounds as grounds 1-7 and in addition, the appellants filed two additional grounds of which have now been numbered 8 and 9, bringing the total grounds of appeal in this appeal to 9 grounds of appeal.

The facts of the case as gathered from the pleadings on the part of the respondent which was the plaintiff is as follows:
The 1st appellant, a limited liability company having its registered office at Okitipupa, Ondo State, carries on business of fishing and inland waterways shipping at Aiyetoro, Ondo State.
The respondent is a limited liability company licensed to carry on business of banking. Sometime in 1974, or thereabout, the 1st appellant approached the respondent to finance the acquisition of five shrimp trawlers for the 1st appellant’s business operations. On the completion of necessary negotiations, the respondent in October, 1975, or thereabout, granted the 1st appellant a loan of nine hundred and one thousand, six hundred and twenty-three naira (N901,623.00) to enable the 1st appellant acquire the shrimp trawlers from overseas ship builders, Messrs Kantere Company of Italy. Under the arrangement agreed upon by both parties to the loan agreement, the respondent was to disburse the funds to the overseas ship builders at periodic intervals through letters of credit. In the loan agreement, dated 8th October, 1975 and executed by the parties, the 1st appellant created in favour of the respondent, legal mortgages over the said shrimp trawlers. The 1st appellant also created equitable mortgage over three of its landed properties the title deeds of which the 1st appellant deposited with the respondent.
The 2nd appellant guaranteed the repayments of the principal sum with accrued interests by an annual instalmental payment of fifty thousand naira in the event of the 1st appellant’s default to honour its repayment obligations.
Following the failure of the appellants to repay the principal sum with accrued interest and the inability of the respondent to sell the mortgaged shrimps trawlers pursuant to the exercise of its power of sale as contained in the legal mortgage over the shrimps trawlers, the respondent took out a writ of summons on 11th July, 1986, against the appellants for the relief earlier reproduced in this judgment.
The appellants as defendants denied liability. According to the appellants, the repayment of the loan and interest was conditional and subject to the terms of the loan agreement executed on 8th of October, 1975. The appellants averred that their request for information about disbursements of the loan was brought to its knowledge by a document, dated 21st February, 1978. The appellants admitted signing the loan agreement, but vehemently denied the amount allegedly disbursed from the loan. They stated that in spite of their demands for details and the actual amount of money disbursed with documentary proof to the ship builders namely letters of credits, documents showing receipt of the money allegedly transferred, the respondent refused and is still refusing to disclose such information with supporting documents.
It is the case of the 2nd appellant that it was neither aware of nor guaranteed any supplementary loan or any other loan whatsoever.
The 2nd appellant averred that it guaranteed only the initial loan of N901,623.00 and was and/or is neither aware of nor guaranteed any supplementary loan or any other loan whatsoever. The 2nd appellant emphatically avers that contrary to the loan guarantee agreement of 11th March, 1975, which the 2nd appellant signed, the 2nd appellant was never informed of 1st appellant’s default in repaying any amount disbursed in accordance with clauses 3 and 4 of the loan agreement of 8th October, 1975 and that the 2nd appellant was never given the right to exercise the option of paying N50,000.00 annually, which was embodied in the guarantee agreement and its undertaking in writing made in March, 1975.
Briefs of argument were filed and exchanged by counsel to the parties in accordance with the rules of practice and procedure of this court. When the appeal came up for hearing on 12/3/2002, both counsel adopted and relied on their respective briefs. In addition each counsel made some elaboration in respect of his brief.
From their 9 grounds of appeal, the appellants distilled the following issues for the determination of this court:
(i) Having rightly held that the respondent did not establish the specific or any specific amount disbursed on behalf of the 1st appellant to the manufacturers of the ships and having rightly made several condemnable and negative findings against the plaintiff’s case, whether or not the lower court was not in grave error to have still gone ahead to give it judgment-grounds 1, 6 and 9.
(ii) Whether or not the lower court rightly embarked on computation of figures to arrive at its judgment-ground 8.
(iii) Having rightly held that no notice was given to the 2nd appellants by the respondent and that it was premature to sue it/them, whether or not the lower court did not fall into fatal error in still going ahead to give judgment against them and ordering the immediate sale of their landed properties-grounds 2 and 3. Whether or not the lower court has jurisdiction to enter judgment against the 2nd appellant in the way and manner it did- grounds 2 and 3.
(iv) Whether or not the lower court rightly admitted and or made use of exhibits F-F37 titled “Disbursement advice” – ground 5.
(v) Did the lower court rightly reject or dismiss the appellants counter-claim-ground 4.
(vi) Considering the totality of the evidence adduced and the way and manner the plaintiff’s case was presented, whether or not the lower court ought not to have dismissed the entire claims of the plaintiff/respondent ground 7.”

The respondent on the other hand, formulated the following issues which according to it arise for the determination of this court in this appeal.
1. Whether or not, the learned trial Judge acted correctly in entering judgment in favour of the respondent for the lesser amount of N1,230,603.26, being the total amount that was found to have been disbursed by the respondent on behalf of the 1st appellant to the oversea ship builders as shown in exhibits F-F37 inspite of the adverse comments of the trial Judge against the respondent’s case. Grounds 1, 6 and 9.
2. Was the learned trial Judge wrong in entering judgment in favour of the respondent for the lesser sum of N1,230,603.26 being the total amount of the sums contained in the disbursement Advice/Debit Notes exhibits F-F37 as calculated by the trial Judge when the said exhibits F-F37 were admitted in evidence and when the respondent addressed the court as to the sufficiency of the said exhibits F-F37 in establishing the amount disbursed by the respondent to the overseas ship builders on the 1st appellant’s behalf. Ground 8.
3. Whether or not the 2nd appellant was competently sued as 2nd defendant to the respondent’s action having regard to the respondent’s failure to give notice of the 1st appellant’s default under the loan agreement to the 2nd appellant as prescribed in clause 1, paragraph 2 of the guarantee agreement. Ground 2.
4. Was the learned trial Judge right in ordering the sale of the landed properties forming part of the appellants’ security in satisfaction of the 1st appellant’s indebtedness to the respondent, when the application for the sale of the landed properties was not opposed by the appellant? Ground 3.
5. Did the learned trial Judge properly admit exhibits F- F37 in evidence and properly act on them in the case? Ground 5.
6. Was the respondent entitled to the judgment entered in its favour having regard to the totality of the evidence before the trial court? Ground 7.
7. Was the learned trial Judge right in dismissing the counter-claim of the appellants? Ground 4.”

Arguing the appeal for the appellants, Chief Wole Olanipekun, learned Senior Advocate of Nigeria, in the appellants’ brief dated 28/12/2000 filed on 3/1/2001, on the appellants’ issues 1 and 11, argued together stated that the learned trial Judge in several portions of his judgment, rightly made many findings and came to the inescapable conclusions condemning the case of the respondent. In that connection, he referred to pages 205, 221, 223, 224, 225, 226, 228 and 229 of the record, reproducing some of the portions in the appellants’ brief and submitted that there is no gainsaying the fact that the portions referred are fundamental and far-reaching findings by the learned trial Judge against the respondent who was plaintiff at the trial court. Learned SAN, further submitted that based on the findings, the learned trial Judge ought to have dismissed the respondent’s case. He said the respondent could not prove or establish the actual money disbursed to the manufacturers by producing letters of credit or the counterparts of them. It is contended that the respondent could not establish the local charges like the insurance claims and telex expenses. That further still the interest due and payable on the amount disbursed, which can be gathered from the letters of credit or the 1st appellant’s statement of account was not established. He added that no evidence was given as to how the amounts expressed in German Dutch Mark were arrived at having regard to the fact that the learned trial Judge himself said that he was at sea and helpless. It is further submitted that the respondent failed to discharge the burden placed on it by law of succeeding on the strength of the respondent’s case rather than on the weakness of the case of the appellants, for that reason, the learned trial Judge ought to have dismissed the case of the respondent as plaintiff.
Relying on the case of Omoborinola v. Military Governor of Ondo State (1998) 14 NWLR (Pt.584) 89 at 98, 104-105, learned SAN for the appellants submitted that the plaintiff has the onerous duty of establishing his claim before the court pursuant to sections 135, 136 and 137 of the Evidence Act. He further stated that with respect, that the learned trial Judge descended into the arena when the learned trial Judge started speculating or raising presumptions which would help the plaintiff’s case after he has rightly found that the plaintiff did not establish its case by putting figures on his adding machine, converting the German Duetch Mark to Naira thereby invariably overruling himself in the same judgment. Learned SAN for the appellants further submitted that the computation of figures by the learned trial Judge to arrive at a judgment for the respondent as plaintiff without hearing the appellants in respect of the said computation has occasioned a miscarriage of justice, citing Seismograph Ltd. v. Ogbeni (1976) 4 SC 85, State v. Aibangbee (1988) 3 NWLR (Pt.84) 548 at 577 and Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514 and many other cases in support of his submission. Reference was made to Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 at 373 and Bamgboye v. Olarewaju (1991) 4 NWLR (Pt.l84) 132 at 144 and 151-152, by the learned senior counsel for the appellants, who said that the learned trial Judge embarked on analysis of disbursement not canvassed, demonstrated, tested and argued in court and arrived at findings which are very perverse, shutting his eye to the very obvious and magnifying what are obscure. He concluded his submission on these issues by urging the court to resolve issues 1 and 11 in favour of the appellants.
Learned SAN for the appellants commenced his submission on issue No.(111) by reproducing part of the terms of the guarantee given by the 2nd appellant in respect of the loan disbursed on behalf of the 1st appellant by the respondent, contained in exhibit D dated 1st March, 1975 at page 14 of the appellants’ brief. He pointed out that there was a serious complaint by the 2nd appellant before the lower court that it was not notified of the default of the 1st appellant and to that extent joining the 2nd appellant as co-defendant was premature and in breach of the terms of the said guarantee. Learned SAN also referred to page 236 of the record which he reproduced at page 14 of the appellants’ brief and argued that the learned trial Judge, having held that it was premature to bring the action against that 2nd appellant, the learned trial Judge ought to have dismissed the case against the appellants. It is further submitted relying on Atolagbe v. Awumi (supra) page 536, that parties are bound by the terms of the guarantee agreement between them. He cited several cases in support of his submission and urged the court to also resolve issue (111) in favour of the appellant.
On issues (iv) and (v), argued together, learned SAN, submitted that exhibits F-F37 titled “disbursement advice” were wrongly admitted by the learned trial Judge in contravention of section 97(2)(e) of the Evidence Act. He referred to the portion of the judgment of the trial court at page 227 of the record, which he reproduced at page 19 of the appellants’ brief and contended that even if the learned trial Judge was right in regarding exhibit F-F37 as letters issued from the bank, they can not be regarded as representing the actual amount disbursed by the respondent having regard to his earlier findings. It is further submitted that there is no credible evidence to support the judgment of the trial Judge for that reason the court is urged to allow the appeal on the two issues.
Learned SAN, for the appellants on issue (v), complained that the lower court with a wave of hand dismissed the appellants’ counter-claim on grounds discussed at page 237 simply because the respondent gave evidence to the effect that they were not in possession of the landed properties. He contended that no consideration at all was given to the evidence of  the appellants. It is argued that two sets of facts adduced by the parties were wrongly weighed and evaluated and urged the court to interfere, citing several cases in support of his submission. Learned SAN for the appellants finally urged the court to allow the appeal and set aside the judgment of the trial court.
Responding, Olalekan Ojo, Esq, learned Counsel for the respondent, in the respondent’s brief dated 6/9/2001, filed on 10/9/2001 on issues 1 and 2 argued together commenced by stating some principles of law. He said the first principle is that a party is entitled to judgment for any part of his claim which is established to the satisfaction of the court. A fortiori, a trial court is entitled to enter judgment in favour of a party for any part of his claim which has been established on the evidence before the court. See Orie v. Uba (1976) 9-10 SC 123 at page 130. The second principle is that an appellate court will not reverse the decision of a trial court once the decision is right notwithstanding the fact that the trial Judge gave wrong reasons for the decision or committed some judicial slips in the judgment which did not occasion miscarriage of justice, citing Adewuyi v. Odukwe (2000) 4 NWLR (Pt.654) page 616 at 635 and 637; Ogbaji v. Arewa ile Plc. (2000) 11 NWLR (Pt.678) page 322 at 338.
It is the respondent’s contention that when the above principles are applied to the facts of this case, the evidence on the record and the findings of the court, the decision of the learned trial Judge should not be disturbed because the judgment accords with the evidence before the court. He stated that the appellants contended in their brief that having regard to the findings of the learned trial Judge in this case, the learned trial Judge should have dismissed the respondent’s case in its entirety. In response to the contention of the appellants the learned Counsel for the respondent submitted that most of, if not all the statements made by the trial Judge which the appellants dubbed as findings are not findings of facts properly so called but observations, citing Onyekwulume v. Ndulue (1997) 7 NWLR (Pt.512) page 250 at 273.
Learned Counsel for the respondent further argued that all the learned trial Judge said at page 221 of the record would in law not amount to a finding of fact because the learned trial Judge had not even started the evaluation of evidence at the time he made the negative remarks or comments about the respondent’s case. He referred to the evidence of the witnesses at pages 10-11 of the respondent’s brief and urged the court to hold that the judgment of the learned trial Judge is amply supported by the pleadings and evidence as well as admissions of the appellants before the trial court.
Learned Counsel further argued that the judgment of the trial court was based on documents tendered in evidence and on which the court was addressed. It is the submission of the learned counsel for the respondent that the learned trial Judge properly appraised and or evaluated all the evidence, documentary and otherwise before entering judgment in favour of the respondent.
According to the learned Counsel for the respondent, the learned trial Judge did not transgress any rule of adjectival law when he examined and added or computed various sums individually disbursed to the overseas ship builders as contained in exhibits F-F37 before arriving at the total amount disbursed by the respondent. Citing Otuo v. Nteogwuile (1996) 4 NWLR (Pt.440) 56, learned Counsel submitted that once a document has been tendered and admitted as an exhibit, the court has the right and duty to refer to any portion of it in order to arrive at a just decision of the case.
It is further submitted by the learned Counsel for the respondent that the position of the court is that where the decision of a trial court is right, the decision would not be set aside on appeal even where the trial Judge can be shown to have committed judicial slip or error unless the appellant can establish that a miscarriage of justice has occurred by reason of mistake or error. According to the learned counsel for the respondent, by adding the sums in exhibits F-F37, the learned trial Judge cannot be said to have concocted evidence or embarked upon private examination or rather still descended into the arena of the conflict. He concluded his submission by urging the court to resolve issues 1 and 2 in favour of the respondent.
It is the submission of the learned Counsel for the respondent on issues 3 and 4 that the terms contained in exhibit D1 reproduced at page 14 of the appellants’ brief do not constitute conditions precedent to the bringing of any action against the 2nd appellant in this case contrary to the submission of the appellants. He contended that the appellants have failed to show that the giving of the notice of 1st appellant’s default to the 2nd appellant is as a condition precedent to bringing the action against the 2nd appellant. Learned Counsel for the respondent further submitted that the stipulation in a contract of guarantee that notice of the principal debtor’s default be given to the guarantor does not make the giving of such notice of default a condition precedent to instituting an action against the guarantor.
Relying on his submission, learned Counsel urged the court to resolve issues 3 and 4 in favour of the respondent.
On issue 5, learned Counsel said that it is necessary to determine whether or not exhibits F-F37 titled “disbursements advice” are entries in a bankers book. He pointed out that the learned trial Judge rejected the argument of the appellants that exhibits F-F37 are entries in a banker’s book and held that the said exhibits are not entries in a banker’s book to which the provisions of section 97(2)(e) of the Evidence Act apply. It is submitted that the learned trial Judge was right in rejecting the contention of the appellants that exhibits F-F37 are not entries in banker’s book and the respondent respectfully urged the court to affirm the decision of the court.
The learned Counsel for the respondent on issue 6, urged the court to hold that the judgment of the trial court for the lesser sum in this case is amply supported by the admitted evidence before the trial court. For that reason, he urged the court to resolve the issue against the appellants. He added that the respondent is entitled to judgment for the lesser sum as found by the learned trial Judge.
The learned Counsel said that the learned trial Judge considered the evidence of both parties in relation to the counter-claim and held that the counter-claim was not proved and referred to pages 235 and 237 of the record where the learned trial Judge gave reasons for dismissing the counter-claim. He urged the court to affirm the decision of the learned trial Judge in respect of the counter-claim.
In the reply brief, Chief Wole Olanipekun, SAN for the appellants, cited several cases in opposition to the ones referred to by the counsel for the respondent. He referred to paragraphs 8.01-8.03 of the argument of the respondent that exhibits F-F37 which are disbursements advice/debt and not bankers book which must conform with section 97(2) of the Evidence Act, to be admissible is misconceived. That the counsel to the respondent has not shown how these exhibits emanating from the bank as evidence of the transaction on the loan agreement are different from the statements of accounts issued by the banks. He contended that statements of accounts to be admissible, however have been held in a line of cases to be banker’s book. He concluded that therefore disbursements or debit advice can not be different.
Learned SAN further submitted that it was held that even statement of accounts are banker’s book and that same cannot be admitted without full compliance with the provisions of section 97(2) of the Evidence Act, citing Yesufu v. ACB Ltd. (1976) 1 All NLR 328; Yassin v. Barclays D.C.O. (1968) 1 All NLR 171; ACB Ltd. v. Oba (1993) 7 NWLR (Pt.304) 173. Further replying to the submission of the learned Counsel for the respondent, learned SAN argued that the mere fact that a document was not objected to at the tendering stage does not mean same cannot be expunged when the Judge is wrong, in his judgment, particularly if the Judge discovers that the document has been wrongly admitted and referred to Okafor v. Okpala (1995) 1 NWLR (Pt.374) 749 at 759.
Having examined the issues formulated by both counsel, I prefer the ones formulated by the appellants, which I adopt in the determination of this appeal.

It is a well settled principle of law that civil cases are decided on the preponderance of evidence and balance of probability. See ACB Plc v. Haston (Nig.) Ltd. (1997) 8 NWLR (Pt.515) 110; Imana v. Robinson (1979) 3-4 SC 1 and Elias v. Omo-Bare (1982) 5 SC 25. He who asserts must prove with cogent and credible evidence, for if he does not so prove his claim is bound to fail. See section 135 of Evidence Act, 1990, Laws of the Federation, Cap.112. See Weide Co. (Nig.) Ltd. v. Weide and Harmburg (1992) 6 NWLR (Pt.249) 627. It is necessary to refer to the pleadings of the parties, particularly, the relevant averments relied upon by each party. I consider paragraphs 5, 6, 7, 8, 9 and 10 of the amended statement of claim and paragraphs 5, 6, 7, and 9 of the amended statement of defence relevant which are reproduced below:
Amended statement of claim
“5. The 1st defendant entered into a loan agreement dated 8th October, 1975, with plaintiff where the first defendant covenanted to create and infact created in favour of the plaintiff legal mortgages in respect of the five shrimp trawlers laifotape No. 1-5 when they were subsequently acquired as security for the repayment of the loan with interest, fee usual banking charge and other costs.
5(a) The plaintiff avers that apart from the principle loan it granted to the defendant it subsequently granted a supplemental loan to the defendant which loan was evidenced by a supplemental loan agreement executed by the parties. Furthermore, the plaintiff over disbursed to the defendant the loans already approved. The plaintiff shall rely on the supplemental loan agreement at the trial of this action.
5(b) The plaintiff avers that there was a tripartite ship building agreement between itself, the defendant and Messrs Cantere Navalmeccanic Di Sengalia, which clearly stipulates the obligation of each of the three (3) parties with respect to the construction, payment and delivery of the five (5) shrimp trawlers. The plaintiff shall rely on the said agreement dated 25/3/75 at the trial of this action.
6. The 1st defendant as borrower further covenanted in the said loan agreement to provide certain properties as securities for the said loan and infact deposited with the plaintiff their title deeds in respect of three of their landed properties namely:-
(a) A piece of land, along Igbokoda/Okitipupa road in Igbokoda, measuring 4283/408 square metres covered by a deed of conveyance dated 15th February, 1978 and registered as No.49 at page 49 in volume 62 at the Lands Registry at Akure.
(b) A piece of land along Igbokoda/Okitipupa road in Igbokoda, measuring 7053.382 square metres covered by a deed of conveyance, dated 15th February, 1978 and registered as No. 50 at page 50 volume 62 at the Lands Registry at Akure.
(c) A piece of land at No.39, Obiri Street, Okitipupa measuring 1150.46 square yards covered by a deed of conveyance, dated 20th January, 1969 and registered at No. 11 at page 11 in volume 1109 at the Lands Registry at Akure.
7. The 2nd defendant, guaranteed repayment of the principal sum and the interest by an annual instalmental payment of N50,000.00 (fifty thousand naira) in the event of default by the borrower, until the whole accrued debt would be finally liquidated. The plaintiff will rely at the trial of this suit on a letter reference no. PS/LG/SOAA dated 11th March, 1975 written by the 2nd defendant to the plaintiff.
8. That by virtue of the schedule of repayment to the said loan agreement the 1st defendant was to complete repayments of the principal sum, interest and all such monies which had constituted the balance due to the
plaintiff by December, 1981.
9. That the plaintiff later gave the defendant three years of grace within which to complete repayments of the principal sum interest and such monies due to the plaintiff by asking it to complete repayment by the 28th December, 1984 because of the delay in the actual takeoff of the project. But this gesture was not appreciated by the defendant who has up till this moment refused to effect any repayment.
10. That the defendants have defaulted in the repayment of the said loan and interest. Demand notes were issued to the defendants who up till now persisted in their refusal to repay the said loan, interest, other charges and costs.”
The paragraphs of the amended statement of defence are:-
“5. The defendants deny paragraph 8 of the statement of claim and say that repayments of the sum borrowed and interest was conditional and subject to the terms of clause 1.1 of the Credit Offer of 28th February, 1975, incorporated into the loan agreement executed on 8th October, 1975.
6. The 1st defendant says that, at its request, information about disbursement of the loan was brought to its knowledge by a document dated 21st February, 1978; defendant will found upon the said document by the Nigeria Agricultural and Co-operative Bank Limited (NACB) to the Aiyetoro Community Trading Company Limited (ACTC) at the trial of this action.
7. The defendants denied refusing to effect repayments, and will lead evidence to show that the trawlers acquired directly by the plaintiff for the 1st defendant were delivered to it in July, 1976 and August, 1977 respectively, and it will be contended that the trawlers were made of inferior boat building material, and that the engine installed in them were particularly of inferior quality, lacking spare parts hence, its constant breakdown which characterised the life-span of the five trawlers.
9A. The defendants aver that, while admitting signing a loan agreement with the plaintiff on the 8th October, 1975, the amount allegedly disbursed from the loan is vehemently denied, and the plaintiff is put to the strictest proof thereof.
9B. The defendants aver that in spite of demands for details and the actual amount of money disbursed to the shipbuilders in Italy under the loan agreement, the plaintiff had refused and is still refusing to disclose with supporting documents, the actual amount disbursed with documentary proof of receipt of such disbursement, viz: letters of credit and documents showing receipt of money allegedly transferred to the ship-builders in Italy and Conrad Birkhoff of Hamburg.”
After considering the evidence adduced before him by the parties, the learned trial Judge at pages 225-226 of the record, said;
“In a suit in which so much is involved, I do not think it could have been too much to bring down a knowledgeable agent of the manufacturers to give evidence of the actual money received by the manufacturers on behalf of the 1st defendant. After all, if the loan had been paid directly to the defendant it would still have been necessary to prove the actual amount received by the defendant, mortgage deeds and loan agreements notwithstanding. Apart from the pre manufacture tripartite agreement, exhibit E in which it was provided that the manufacturers had agreed “to build for the purchasers and the purchasers have agreed, to buy the vessels described in the schedule hereto for the sum of DM 2,900,000 DM respectively, 580,000 DM which does not mean much to this court in the absence of any evidence as to the equivalent of this queerly quoted price in naira, there is no record tendered to show
exactly how much the builders received.”
However, at pages 229-230, the learned trial Judge, held;
“Since there is no other evidence of the actual money spent outside the disbursement advice issued. I hold that these are evidence of all the money actually disbursed and spent on behalf of the defendants, and I find no basis in going outside it except of course, the question of interest on the money. So as I have said  earlier, I shall base my judgment on the amounts in exhibits F-F37.
I must admit that the slipshod manner in which the plaintiffs prepared and presented the defendant’s accounts has been most unhelpful in determining how much was actually disbursed on behalf of the defendants. The amount owed was made up of:
(a) The actual money that went to the manufacturers;
(b) Local charges like insurance, telex expenses etc; and
(c) Interests.

These were not clearly shown in any document. I agree with Prince Mafo that by the way the account was presented one could not say that the plaintiff actually proved the actual amount disbursed. I cannot imagine a more careless and per functionary system of accounting than the one exhibited by the plaintiffs in this case. Exhibit G contained what is called details of disbursements and repayments as at 31st January, 1978, which I have mentioned earlier; whereas, when I, on my own, cast the various amounts on exhibits F-F37 on the adding machine, I obtained N1,230,603.26. These two discrepant figures did not include interest which Chief Ogunleye, submitted was capitalised i.e. was added to the capital. As I have said earlier, each of exhibits F-F37 was accompanied by a commercial bank’s forwarding slip, which means that the money actually passed from the plaintiff/bank through the commercial bank to the recipient in favour of the defendants.
I have answered the first three posers I listed above.”
The Supreme Court has in a number of cases laid down the principles governing a review of the facts by an appellate court. Broadly speaking it is the primary function of a trial court, which saw and heard the witnesses to assess the credibility of those witnesses and to believe or disbelieve any of them. See Chinwendu v. Mbamali (1980) 3-4 SC 31 at page 75 per Obaseki, JSC; Enang v. Adu (1981) 11-12 SC 25 at 38 per Nnamani, JSC.

In this respect, an appellate court is only left with a duty to see:
(a) Whether there was evidence to support the findings and/or the decision of the trial court.
(b) Whether the trial court made a correct assessment of the evidence before it.
(c) Whether the trial court has wrongly accepted or rejected any evidence tendered at the trial; or
(d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in this case. See A. Anyaoke v. Dr. F. Adi (1986) 3 NWLR (Pt.31) 731 at 742; Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91.

All that this means is that an appellate court will not interfere with the findings of a trial court unless it is obvious that, that court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it. See Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35; Woluchem v. S. Gudi (1981) 5 SC 291.
The main question in this appeal will be to ascertain whether there has been a violation of the principles stated above. By several decided authorities, it has been held that a trial court has to make a finding on evidence before it. See Okuwobi v. Ishola (1973) 3 SC 43; Anukanti v. Ikwonyeaso (1978) 1 SC 37; Okonofua v. The State (1981) 6-7 SC 1 and Mogaji v. Odofin (1978) 4 SC 91. As can easily be seen from the two portions of the judgment of the learned trial Judge, reproduced in this judgment, it does not appear that the learned trial Judge acted on the evidence adduced before him. I understand the first portion of the judgment of the trial Judge at pages 225- 226 to mean that there is no credible evidence adduced by the respondent in respect of the disbursements and the actual amount in naira as the amounts given in Deutsch mark. In fact the learned trial Judge said that a knowledgeable agent of the ship builders ought to have been summoned to give evidence. It does not appear that the finding of the learned trial Judge at pages 229-230 is based on the evidence adduced before him. The learned trial Judge has clearly in effect stated in his judgment, that the amount he awarded to the respondent was obtained through his own effort in his chambers by using an adding machine, apparently relying on the same documents which he had earlier said did not mean much to him.
The action taken by the learned trial Judge in the instant case, had raised the question as to what the function of a Judge is in a civil case.
In the English case of Fallon v. Calvert (1960) 2 QB 201 at 204, cited by the learned SAN, for the appellant, the court said;
“In a civil suit the function of a court in this country, (unlike that of courts in some other countries) is to decide cases on the evidence that the parties think fit to call before it. It is not inquisitorial. In re Enoch and Zaretzkly. Bock and Co’s arbitration decided that a Judge or Umpire had no right to call a witness in civil action without the consent of the parties.”
The Supreme Court of Nigeria, in the case of Isaac Omoregbee v. Daniel Pendor Lawani (1980) 3-4 SC 108 at 120, considered the issue of calling a witness in which the court cited an English case referred to in Calvert (supra) and held, “Accordingly, the general law of our evidence is that neither a Judge, nor an umpire in arbitration proceedings, has any right to call a witness without the consent of the parties.”
It therefore, follows that a Judge has no power to personally obtain evidence and rely on it in a civil case not adduced before him by the parties. A trial is not an investigation and investigation is not the function of a court. A trial is the public demonstration and testing before a court of the case of the contending parties. The demonstration by the assertion and evidence, and the testing by cross examination and argument. The function of the court is to decide between the parties on the basis of what has been so demonstrated and tested. See Duriminiya v. C.O.P. (1961) NNLR 70, 73-74.

The trial or appellate court can, as of right raise issues that may aid the determination of the issues in controversy but cannot decide such issues without the parties counsel reacting to such issues raised suo muto by the court. See R.A.F Finnih v. J.O Imade (1992) 1 NWLR (Pt.219) 511; Kuti (Trading as Abusi-Odu Transport) v. Oludadimu Jibowu (1972) 6 SC, 147. In order to maintain the judicial neutrality and thereby enable the Judge refrain from deciding a case on issues raised by him suo motu in his judgments, the best posture for the Judge is to confine himself on issues of facts solely raised by the parties. See Ochonma v. Unosi (1965) NMLR 321. It cannot be disputed that in the instant appeal the learned trial Judge did not invite the parties’ counsel to address him on the amount he obtained suo motu by computing the figures on exhibits F-F37, which he subsequently held to be the amount the respondent was entitled to be paid by the appellants.
The cases referred to by the learned Counsel for the respondent at pages 13 to 19 of his brief in respect of the computation and award of a lesser amount are clearly distinguishable from the case under consideration in that in the cases referred the court in each case relied on the evidence properly adduced in its judgment. Whereas, in the case under consideration there is no evidence of the exchange rate whatsoever adduced by the either of the parties. In fact the learned trial Judge complained of his difficulty being faced with figures in Deutsch mark. For example, in Vulcan Gases Ltd. v. G.F. Ind. A.-G., (2001) 9 NWLR (Pt.719) 610 at 656-657, the lower court relied on an undisputed basis for computation, since the two solicitors who drew up the terms of settlement computed the naira equivalent of US $631,241 to be N824,508. The Supreme Court held that in the lower court’s computation, the lower court acted on the fact before it upon which it could act without the assistance of counsel which is not the position in the instant appeal where the learned trial Judge suo muto computed the figures in exhibits F-F37.
Learned SAN for the appellants relying on the provisions of section 97(2)(e) of the Evidence Act, contended that exhibits F-F37 were wrongly admitted by the learned trial Judge. Section 97(2)(e) of the Evidence Act, Cap. 112, Laws of the Federation, 1990 reads:”
97(2)(e) secondary evidence may be given of the existence, condition or contents of a document in the following cases:
“(2) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of subsection (1) of this section is as follows.
(e) In paragraph (h) the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit.”
I think the law is clear that if inadmissible evidence has been received then it is the duty of the Court of Appeal to reject it and decide the case on the legal evidence. See Owonyin v. Omotosho (1961) 2 SCNLR 57, (1961) 1 All NLR 304. It should be noted that the appellants raised an objection to the admissibility of exhibits F-F37 during the hearing but the learned trial Judge overruled the objection.
In any event, exhibits that are inadmissible in law still remain inadmissible whether an objection was raised or not. I agree with the submission of the learned SAN for the appellants that exhibits F-F37 were wrongly admitted by the learned trial Judge. See Yassin v. Barclays Bank DCO (1968) All NLR 171; ACB. Ltd. v. Yesufu (1976) All NLR 328 and ACB. Ltd. v. Oba (1993) 7 NWLR (Pt.304) 173.
It is not the length of evidence given in tendering a bank statement of account that matters, but the substance of the evidence given, nor is it compulsory that the precise words set out in section 97(2) (e) should be used by the witness or the Judge taking down his evidence. It is enough that substantially the requirements of the section are observed. See ACB Ltd. (supra) 339-340. Relying on ACB Ltd. supra, I am unable to agree with the learned trial Judge that exhibits F-F37 are letters. I hold that exhibits F-F37 titled “disbursement advice/debit notes” are nothing but statements of account and their admission in evidence must be in compliance with section 97(2) (e) of the Evidence Act. It is also clear with the greatest respect to the learned trial Judge that apart from the fact that there is no evidence to support his findings, he also descended into the arena which is fatal to his decision.
With the greatest respect to the learned trial Judge, I completely disagree with his findings at page 229 of the record that since there is no other evidence of actual money spent outside the disbursement advice issued, the learned trial Judge, concluded that these are evidence of all the money actually disbursed and spent on behalf of the defendants, as that is a negative assertion. It is not in law for the appellants to prove a negative assertion. The burden is on the respondent who has made a positive assertion to prove it by evidence. See G.F. Ind. v. A.-G., (supra) 667. In my view, the findings of the learned trial Judge are perverse and not as a result of proper judicial discretion. See Kuma v. Kuma (1936) 5 WACA 4; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 at 15; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) 373 and Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360. I therefore resolve issues i, ii, iv and vi in favour of the appellants.
On issues i, ii, iv and vi, I will allow the appeal and do not consider it necessary to proceed to determine all the issues. For the reasons stated herein, I allow the appeal and set aside the judgment of the learned trial Judge.
On the counter-claim, the learned trial Judge, after evaluating the evidence adduced, held at pages 237-238 of the record as follows:-
“(1) That the 1st defendant is liable to the plaintiff in the sum of N1,230,603.26 being the total money disbursed in connection with the transactions leading to the delivery of the five fishing trawlers – laifotape 1 to laifotape 5, less N35,000.00 which the records show that has been repaid i.e. N1,195,603.26.
(2) That the subject-matter of the legal mortgage viz: the five fishing trawlers were not sold by the plaintiff.
(3) That the purported sale by the auctioneer was not duly authorised by the plaintiff and since it is common ground that it was invalid, nobody was prejudiced by the auctioneer’s action.
(4) Consequently, nobody was put into possession and therefore, the defendant’s interest were not in anyway jeopardised and therefore the counter-claim does not arise.”
I have read the evidence adduced by the parties and agree with the learned trial Judge that the appellants failed to prove their counterclaim which the respondent denied. I have no reason to interfere with the findings of the learned trial Judge in respect of the counterclaim except for his comment on notice. I do not find it necessary to elaborate on the issue of whether proper notice was given to the 2nd defendant as it will ultimately have no effect on the decision on the counter-claim having regard to my conclusion in respect of the respondent’s claim. I therefore, resolve issue (v) against the appellants and affirm the decision of the learned trial Judge, dismissing the counter-claim.

In the result, I hold that there is merit in the appeal. I therefore hereby, allow the appeal and set aside the judgment of the learned trial Judge, Ajayi, J, delivered on 4/5/89 in suit No.HOK/24/86. The order of the learned trial Judge “for the sum of N1,230,603.26 minus the N35,000.00 already repaid i.e. N1,195,603.26 plus 9% interest calculated from the date this case was filed up to date i.e. between 17/7/86 – 4/5/89” including the order of sale of the landed property subject-matter of the equitable mortgage and costs awarded in favour of the respondent are hereby set aside and substituted with an order dismissing suit No. HOK/24/86. I hereby, affirm the order of the learned trial Judge dismissing the counter-claim of the appellants. I award costs assessed at N5,000.00 in favour of the appellants against the respondent.

ROWLAND, J.C.A.: I had the privilege of reading before now, the draft of the judgment, just delivered by my learned brother, Ba’aba, JCA, I agree entirely, with his reasoning and conclusions. I have nothing useful to add. I also allow this appeal. I abide with the consequential orders in the leading judgment, including the order on costs.

IBIYEYE, J.C.A.: I have had the opportunity of reading before now, the judgment of my brother, Ba’aba, JCA, just delivered. I entirely, agree with his reasoning and conclusion, that the appeal is meritorious. I too, accordingly, allow the appeal and abide by the consequential orders including costs.

Appeal allowed.

 

Appearances

Chief Wole Olanipekun, SAN (with him, Ayodele Ogundele, Esq. and Adeola Omotunde, Esq.)For Appellant

 

AND

Olalekan Ojo, EsqFor Respondent

 

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