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AUGUSTINE & ANOR v. EKIMOGUN MICROFINANCE BANK (NIG.) LTD (2020)

AUGUSTINE & ANOR v. EKIMOGUN MICROFINANCE BANK (NIG.) LTD

(2020)LCN/14348(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Wednesday, June 17, 2020

CA/AK/239/2017

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

1. MR. AKINKUOTU OLAWALE AUGUSTINE 2. MR. AKINKUOTU PATRICK APPELANT(S)

And

EKIMOGUN MICROFINANCE BANK (NIG.) LTD RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL CAN ONLY BE DETERMINED ON ISSUES ARISING FROM THE GROUND OF APPEAL

The law is settled that an appeal can only be determined on issues arising, formulated or distilled from the grounds of appeal. This means that an appeal is not argued on the grounds of appeal but on issues which must be derived or distilled from the grounds of appeal. See AYANGOKE & ANOR V KEYSTONE BANK (2013) LPELR – 21806 (CA); MTN V TATACOMS INTERGRATED RESOURCES LTD (2018) LPELR – 44783 (CA), SHETTIMA V GONI (2011) 18 NWLR, PT. 1279, 413 and SHEIDU V STATE (2014) 15 NWLR, PT 1429, 1. It follows therefore that the respondent can challenge the competence of an issue only in so far as it is not based on a ground(s) of appeal but not on the grounds that it raises a fresh issue. ONWUBUARIRI & ORS V IGBOASOIYI & ORS (2011) 3 NWLR, PT. 1234, 357 and SHEMA & ORS V FRN (2018) LPELR – 43723 (SC). What this means in my view is that if the respondent’s allegation is that a fresh issue has been introduced on appeal, then the attack must be on the ground(s) of appeal that introduced such a fresh matter. The law which is backed by a long chain of authorities is that for a ground of appeal to be competent and valid, it must be related to the decision being appealed against and should constitute a challenge to the ratio decidendi of the decision on appeal: OKAFOR V ABUMOFUANI (2016) 12 NWLR, PT. 1525, 117 and DARAMOLA V NIGERIA POLICE (CID), IDIMU POLICE DIVISION & ORS (2019) LPELR – 46503 (CA).  PER MAHMOUD, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THR TRIAL COURT TO RELY ON THE PLEADINGS OF A DEFENDANT/APPELLANTS TO MAKE UP FOR THE FAILURE OF THE CLAIMANT

It is not the duty of the trial Court to rely on the pleadings of the defendants/appellants to make up for the failure of the claimant to prove its case on the balance of evidence adjudged credible. The authorities have established without a doubt that in a situation such as this, the bank must adduce both documentary and cogent oral evidence to show how the claimed debit balance was arrived at. In other words, the bank has a duty to demonstrate through credible oral evidence the analysis of the account, like how much of the debit amount was interest and other bank charges, and establish whether those interests or charges are in line with the agreement between the parties or if there is no agreement, in accord with the usual bank practice or CBN guidelines, etc. See YESUFU V ACB (1986) 1-2 SC; HABIB NIG BANK LTD V GIFT UNIQUE (NIG) LTD (2004) 15 NWLR, PT. 896, 405; WEMA BANK V OSILARU (2008) 10 NWLR, PT. 1094, 150, BIEZAN EXCLUSIVE GUEST HOUSE LTD V UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR, PT. 1246, 246 and IFEMESIA V ECO BANK NIGERIA PLC (2018) LPELR – 46589 (CA). PER MAHMOUD, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF IS ON THE PARTY WHO ALLEGES

The mute but legendary principle on proof is that the burden of proof is on the party who alleges. The phrase that “he who asserts must prove” has become a singsong: DAODU V NNPC (1998) 2 NWLR, PT. 538, 355; LONGE V FBN PLC (2006) 3 NWLR, PT. 967, 228 and ILIYA & ANOR V LAMU & ANOR (2019) LPELR – 47048 (CA). The onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his case on the preponderance of evidence/balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. BUT WHERE A PARTY FAILS TO DISCHARGE THIS BURDEN THEN THE OPPONENT NEEDS NOT PROVE ANY FACT AND THE PARTY ALLEGING CANNOT RELY ON THE OPPONENT’S CASE (Emphases provided). See IMAM V SHERIFF (2005) 4 NWLR, PT. 914, 80; AGBI V OGBEH (2006) 11 NWLR, PT. 990, 65; OWOYEMI V ADEKOYA (2003) 18 NWLR, PT. 852, 307, ELIAS V OMO-BARE (1982) 5 SC, 25 and FAKOMITI V ILORI & ANOR (2018) LPELR – 46367 (CA).  PER MAHMOUD, J.C.A.

WHETHER OR NOT A PARTY MUST PROVE ITS CASE ON THE CREDIBLE EVIDENCE OF ITS WITNESS

Again the law is trite and as I have found in this judgment that a party must prove its case on the credible evidence of its witnesses and is not at liberty to make a case out of the weakness of the opponent. In essence the plaintiff/respondent has the burden to prove the allegation of the defendants’ indebtedness to him in the tune of N10,928,455.15 on preponderance of evidence before the onus can shift to the defendant. See ELIAS V OMO-BARE (SUPRA). PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice O. A. Adegbehingbe of the Ondo State High Court sitting in Ondo and delivered on the 23/05/2017. The respondent who was the claimant in the Court below had by a writ of summons dated and filed on the 15/01/2016 claimed against the defendants/appellants jointly and severally as follows:
a) The sum of Ten Million, Nine Hundred and Twenty Eight Thousand, Four Hundred Fifty five Naira, Fifteen Kobo (N10,928,455.5k) only being the balance of the loan facility granted to the 1st defendant which he has failed to pay back despite repeated demands.
b) Claimant claims interest on the said sum at the rate of 25% monthly till judgment is given.
c) Claimant also claims interest on the judgment sum at the rate of 25% monthly till final settlement of the judgment sum.

In proof of its case, the claimant/respondent called a sole witness, its Assistant credit control officer who testified as PW1. He also tendered sixteen documents in evidence. These were admitted and marked as Exhibits P1 – P16.

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The crux of the claimant’s case in the trial Court is that the 2nd defendant/appellant guaranteed a loan advanced to the 1st defendant/appellant at different times totaling over Two Million Naira. The breakdown of how the 1st appellant obtained the loan, how it was renewed and all the communication of various approvals were given in evidence at the trial. The respondent contended that the 1st appellant who had deposited his title documents of two plots of land as security for the overdraft refused to service the facility in spite of several oral demands. That this made the respondent to writ Exhibit 12 to the 1st appellant where it demanded for the repayment of N1,872,789 as the balance of the loan. That the 1st respondent responded to Exhibit 12 through Exhibit 13 in which he proposed a repayment plan of N100,000 per month. That the 1st appellant made this payment only once and stopped or refused to make any further efforts to liquidate the outstanding debt.

The appellants, defendants in the trial Court in their defence filed a joint statement of defence on the 06/05/2017. Their defence was that the 1st defendant/appellant obtained a credit facility of N1,500,000

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from the respondent, which facility was guaranteed by the 2nd defendant/appellant. That the 1st appellant was willing and ready to service the facility but his business ran into trouble and the respondent failed to help him. In proof of their case only the 1st defendant/appellant testified as PW1. He tendered five documents which were admitted in evidence and marked as Exhibits D1-D5.

At the conclusion of hearing the learned trial judge gave judgment in favour of the plaintiff/respondent and granted two of the three reliefs sought for by them. The defendants dissatisfied with this judgment, by a notice of appeal dated and filed on the 20/06/2017 appealed to this Court on the following four grounds:-
1. The learned trial judge erred both in law and in facts to have held on page 14-15 of his judgment that “it is the view of this Court that at the stage of pleadings, the defendants did not deny the sum claimed by the claimants. Throughout the statement of defence, the defendants did not mention the sum claimed by the claimant in this suit and did not aver facts challenging the correctness, accuracy or entitlement of the claimant to the sum

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claimed. The traverse of the defendants in paragraph 2 of the statement of claim amounts to a general or insufficient traverse…” Without a holistic review of the case of the parties at trial.
2. The learned trial judge erred in law to have relied on the authority in Shell Petroleum Development Co Ltd v. Amaro (2000) 10 NWLR (pt. 675) 248 @ 270 to hold on page 19-20 of his judgment that “on the basis of the conclusion reached above, it is the view of this Court that there was no need for the claimant to prove the sum of N10,928,455:15k (Ten Million, Nine Hundred and Twenty Eight Thousand, Four Hundred Fifty five Naira, Fifteen Kobo), which was admitted by the defendants in their pleadings, implicitly” in a radical departure from the principles of law that party must succeed on the strength of their own case, moreso that this suit is of special circumstances of banking which is of a peculiar nature.
3. The learned trial judge erred both in law by admitting 1st Defendant’s statement of account tendered by PW1 in evidence as Exhibits P15 and P16 without first having recourse to the provisions of Section 84 of the Evidence Act, 2011.

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  1. The judgment of the learned trial judge is against the weight of evidence. Additional grounds of appeal may be filled with the leave of this honorable Court.Whereof the appellants sought the order of Court to allow the appeal, set aside the decision of the trial Court and order a retrial under SECTION 15 of the Court of Appeal Act.

    In prosecuting their appeal the appellants filed their brief of argument on the 07/12/2017. Same was deemed as properly filed on the 17/03/2020.

    In arguing the appeal, MR. Abiodun Olubusade of counsel for the appellants adopted the brief as his legal arguments in support of the appeal.

    In it, the counsel formulated two issues for resolution by the Court, viz:-
    1) Whether the respondent as claimant at the trial Court discharged the burden of proof satisfactorily enough of the 1st appellant’s indebtedness to the sum of N10,928,455:15 to have entitled her to judgment. (Grounds 1, 2 and 5)
    2) Whether the learned trial judge was not in every respect wrong to have admitted Exhibits P15 and P16 without first having recourse to the provisions of Section 84 of the Evidence Act, 2011 (Ground 3).

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On issue (1) counsel referred to Sections 131 & 132 of the Evidence Act to submit that the burden of proof is on the person who asserts. That from the pleadings and the contradictory evidence of the respondent, it is not clear whether the appellant’s indebtedness is N1,500,000, N10,928,455:15 or over N2,000,000. Counsel also urged the Court to pursuant to Section 167(a) of the Evidence Act, 2011 presume that the respondent did not tender the letter of 14/02/2007 where the terms of the loan and interest payable are contained is aimed at withholding evidence not favourable to them. Counsel referred to the case of ISHOLA V SGB OF NIG LTD (1997) 2 NWLR, PT 488, 405 to submit that it is the duty of a banker claiming a particular rate of interest to prove it. That the 2nd appellant is entitled to be notified of the correct interest rate chargeable on the facility of N1, 500, 000 granted to the 1st appellant rather than being notified of 25% as per the guarantee form signed by him in Exhibit P10 as against the 30% interest communicated to the 1st appellant in Exhibit P8. Counsel also submitted that the respondent tendered the 1st appellant’s

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Statement of Accounts in Exhibits P15 and P16 without giving further evidence as to how the balances were arrived at. That the learned trial judge should have in the interest of justice reviewed Exhibit P10 to determine whether the interest rate charged was 25% or 30%. Counsel referred to the case of BILANTE INT’L LTED V NDIC (2011) 15 NWLR, PT. 1270, 407 AT 428 – 429 to submit that in order for a debt outstanding in a customer’s account with its banker to succeed, the banker has to prove how the debit balance claimed from the customer was arrived at. Counsel contended that for a contract to be binding its terms must be certain and not vague. Counsel argued that Exhibits P15 and P16 covered the periods 01/01/2009 – 09/12/2015 and 01/05/2009 – 05/11/2015 respectively. That nothing was said of the state of the 1st appellant’s account from since it was opened in 2003 and or 9th May, 2007 when the approval for the facility was communicated to the 1st appellant. That this leaves the commencement date of the contract between the parties in the realm of speculations or conjecture. That the principles of law the learned trial judge called

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in aid to find for the plaintiff/respondent are founded in land law as opposed to the instant case which touches on banking law. That in banking, a bank claiming repayment of a loan, interest and so on must prove same to the satisfaction of the Court whether or not the defence furnished by the defendant is inadequate or insufficient. Counsel referred to the case of GEORGE V UBA (1972) 8-9 SC, 264 to contend that mere observation based on speculation cannot be a substitute for proof of the fact(s) asserted. Counsel urged the Court to resolve this issue in favour of the appellants.

On issue (2), counsel contended that Exhibits P15 and P16 were merely dumped on the Court. That the respondent did not demonstrate them by adducing oral evidence to prove the facts alleged therein.

In other words, that the Exhibits were not unbundled for the Court to be able to use them. Counsel also argued that Exhibits P15 and P16 were not properly admitted as the learned trial judge failed to comply with SECTION 84(2) of the Evidence Act, 2011 in admitting them. Counsel referred to the cases of IDOWU ALASHE & ORS V SANYA OLORI ILU & ORS (1965) NMLR, 66 AT 77 and

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SALAU JAGUN OLUKADE V ABOLADE AGBOOLA ALADE (1976) 2 SC, 183. Counsel further submitted that the finding of the learned trial judge that a paragraph of the respondent’s pleading was not denied departed from the principle of law enunciated in the case of JAMES SONGO V TEREHEMEN AKURE (2014) AFWLR, PT. 753, 1944 AT 1967 which is that averments in pleadings are to be read and interpreted as a whole and not in isolation. That by the very nature of this case which bothers on overdraft, interest chargeable thereon and default in servicing the facilities, holistic consideration of the defence rather than a fragmented one as done by the learned trial judge is preferred. Counsel submitted that in tendering Exhibits P15 and P16, PW1 never gave evidence in explanation of what happened to the original prints of Exhibits P15 and P16 to make them admissible. That the Court should not have relied too much on the insufficient traverse of the respondent as a basis to attach probative value on Exhibits P15 and P16 in view of the case of FRN V GAD BARMINAS (2017) 15 NWLR, PT 1588, 177. That the Exhibits being inadmissible in law, it is irrelevant that counsel did not object

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to their admission. Counsel referred to the case of MALLAM YAHAYA V MOGOGA (1947) 12 WACA, 132 AT 133 cited with approval in SUNDAY OGUNSINA V SUNMONU MATANMI (2001) 4 SC, PT. 1, 84 AT 90. Counsel urged the Court to also resolve this issue in favour of the defendants.

The respondent’s brief of argument filed on the 11/01/2018 was deemed properly filed on the 17/03/2020. In opposing the appeal, MR Samuel Folorunso of counsel for the respondent adopted the brief in support of his legal arguments. In it, counsel also raised two issues for the determination of the Court:-
1) Whether or not the trial judge was right to have granted the claim of the respondent based on the admission of the appellants (Grounds 1 & 2)
2) Whether or not the appellant can raise fresh issues on appeal without first obtaining the leave of the honorable Court? (Grounds 3 & 5).

On issue (1), MR. Folorunso submitted that it is from the pleadings that issues that arise in a case for resolution are distilled. Counsel referred to the case of OKEGBE V AKPOME (2014) AFWLR, PT. 731, 1585 AT 1601, PARAS E-F. That apart from the general traverse in paragraphs 2-4 of

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the appellants’ statement of defence, the appellants failed to plead facts which will join issues with the issues raised by the respondent. Counsel referred to the cases of OTAPO V SUNMONU (1987) 2 NWLR, PT 58, 587 AT 592, OYEWO V KOMOLAFE (2011) A FWLR, PT. 578, 904 AT 916, PARAS A-E and ALIYU V ITAUMA (2010) AFWLR, PT. 510, 765 AT 783-784, to submit that an improper, insufficient and incomplete denial of averments amount to improper traverse which do not join issues between the parties. That in the instant case the learned trial judge was therefore right to have held that issues were not joined between the respondent and the appellants.

Counsel submitted that paragraph 18 of the joint statement of defence and paragraph 19 of the 1st appellant’s evidence in chief amount to an admission of the claimant’s claim. That such issues therefore needed no further proof. Counsel referred to the cases of ALHAJI MAIYAKI ALI V NDIC (2015) AFWLR, PT. 780, 1209 AT 1228 PARA B and OKEREKE V STATE (2016) AFWLR, PT. 828, 910 AT 925 PARA A.

Counsel contended that the evidence of the 1st appellant in cross examination that he did not agree with the

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amount claimed by the respondent is an afterthought not backed by pleadings which goes to no issue. Counsel referred to the case of AMINU V HASSAN (2014) AFWLR, PT. 725, 205 AT 232-233, PARAS H-C. Counsel further submitted that Exhibits P15 and P16, computer generated entries in a banker’s book of account in the ordinary course of business were properly admitted in evidence within the provisions of the Evidence Act, 2011. Counsel referred to the case ofJOHN V STATE (2012) AFWLR, PT. 607, 639 AT 650-651, PARAS F-B to contend that Exhibits P15 and P16 are admissible under certain conditions. In other words that they are not inadmissible in law. That since the appellants admitted the contents of the documents and their counsel did not object to their admissibility then it was within the competence of the trial judge to act on it.

That the appellants are in the circumstances esstopped from raising any complaint on it. Counsel urged the Court to resolve this issue in their favour.

On issue (2), M Folorunso submitted that by paragraphs 3.2 and 3.5 of the appellants’ brief of argument they have raised a fresh issue on appeal without first

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seeking and obtaining the leave of this Honourable Court. That this renders the issue incompetent and liable to be struck out.

Counsel referred to the cases of ONI V CADBURY (NIG) PLC (2016) AFWLR PT. 827, 605 AT 621, PARA F and EMENIKE V PDP (2012) AFWLR, PT 640, 1261 AT 1286, PARA F to contend that the issue raised in the aforesaid paragraphs of the brief in respect of 25% interest rate in Exhibit P10 and 30% interest in Exhibit P8 is a fresh issue which the appellants did not raise at the lower Court and are incompetent to raise in this Court without first obtaining the leave of Court. Counsel urged the Court to strike out this issue, dismiss the appeal and affirm the judgment of the High Court delivered by His Lordship, Hon. Justice O. A. Adegbehingbe on the 23/05/2017.

The appellants filed a reply brief on the 22/01/2018 and same was deemed on the 17/03/2020. I have gone through this reply brief. The only new issue that can be said to have been raised is issue (2) of the respondent which attacks paragraphs 3.2 & 3.5 of the appellants’ brief as raising a new issue on appeal. As a consequence when I come to deal with issue (2) of the

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respondent reference will be made to the submissions of counsel on this issue as appropriate. The reminder of the reply brief is discountenanced for its failure to comply with ORDER 19(5)(1) of the Rules of Court 2016.
Before deciding which issues I will use to determine this, it is necessary for me to first deal with issue (2) raised by the respondent. Counsel’s challenge is to paragraphs 3.2 and 3.5 of the brief of argument. This means that he is indirectly saying that the issue raised for determination is incompetent. One usually talks of incompetency of appeal vis a vis the grounds of appeal. In other words the issues formulated for resolution must be distilled from the grounds of appeal. The law is settled that an appeal can only be determined on issues arising, formulated or distilled from the grounds of appeal. This means that an appeal is not argued on the grounds of appeal but on issues which must be derived or distilled from the grounds of appeal. See AYANGOKE & ANOR V KEYSTONE BANK (2013) LPELR – 21806 (CA); MTN V TATACOMS INTERGRATED RESOURCES LTD (2018) LPELR – 44783 (CA), SHETTIMA V GONI (2011) 18 NWLR, PT. 1279, 413 and

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SHEIDU V STATE (2014) 15 NWLR, PT 1429, 1. It follows therefore that the respondent can challenge the competence of an issue only in so far as it is not based on a ground(s) of appeal but not on the grounds that it raises a fresh issue. ONWUBUARIRI & ORS V IGBOASOIYI & ORS (2011) 3 NWLR, PT. 1234, 357 and SHEMA & ORS V FRN (2018) LPELR – 43723 (SC). What this means in my view is that if the respondent’s allegation is that a fresh issue has been introduced on appeal, then the attack must be on the ground(s) of appeal that introduced such a fresh matter. The law which is backed by a long chain of authorities is that for a ground of appeal to be competent and valid, it must be related to the decision being appealed against and should constitute a challenge to the ratio decidendi of the decision on appeal: OKAFOR V ABUMOFUANI (2016) 12 NWLR, PT. 1525, 117 and DARAMOLA V NIGERIA POLICE (CID), IDIMU POLICE DIVISION & ORS (2019) LPELR – 46503 (CA). What I am trying to convey here is simply that the arguments/issues cannot stand alone since they are distilled from the grounds of appeal which complain of errors in law and in fact make up the

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foundation of an appeal. If the foundation is not in danger, surely the structure on it should be safe. There is no doubt that the respondent’s counsel is right on point of law that a party cannot raise a fresh issue on appeal except with the leave of Court: CUSTOMARY COURT OF APPEAL, BENUE STATE V ABURA TSEGBA & ORS (2010) LPELR – 4009 (CA) and MOHAMMED V FRN (2018) LPELR – 43908 (SC). There are of course exceptions to this general rule, like issue of jurisdiction for instance. This can be raised at any time even on appeal and without leave. This is however not what is in contention at this instance. What is in contention on issue (2) as raised by the respondent is twofold: Firstly, counsel did not isolate and attack the ground(s) of appeal upon which the issue is derived. It is such ground/grounds that would be sought to be struck out for being incompetent. Secondly, an attack or a challenge to the competence of the ground(s) of appeal can only be by way of motion on notice or preliminary objection depending on whether the attack is on some grounds or all the grounds. It is not open to a party to challenge the competence of a ground of

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appeal or an appeal by way of an issue without filing either a motion on notice or a Preliminary Objection. This procedure is clearly offensive to ORDERS 10(1) & (2) and 20 (5)(1)(2) of the Rules of Court, 2016 and it is therefore incompetent. For this reason, I discountenance issue (2) as raised by the respondent. Assuming I am misconceived in this finding, I uphold the submission of the learned counsel to the appellant in his reply to this issue that the issue of the 25% or 30% contained in Exhibits P8 and P10 could not be said to be fresh issues. This position was affirmed by this Court in the case of ASPHALT UNITY CONSTRUCTION LTD V ONWUKA & ORS (2018) LPELR – 46253 (CA) when it held that:
“A point already raised and discussed at the trial Court, in my view remains part of the proceeding at the trial, and an issue raised therefrom on appeal cannot be termed new or fresh issue. See the case of CHIEKE V NOSIKE (2017) LPELR – 42618 (CA) & SALISU & ANOR V MOBOLAJI & ANOR (2013) LPELR -22019 SC on guide as to when a fresh issue arises in Appeal, and how to raise it.” Indeed, Fabiyi, JSC made this point very well

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and clearly in the case of OLALOMI INDUSTRIES LTD V NIDB LTD (2009) 16 NWLR PT 1167, 266:
“I need to say it that fresh point of law means an issue which was not canvassed at the lower Court and pronounced upon thereat. See FBN PLC. V ACB LTD (2006) 1 NWLR (PT. 962) 438 AT 462. Fresh issue must be basically on point of law and must be raised with the leave of Court. See EZUKWU V UKACHUKWU (2004) 17 NWLR (PT 902) 227.”
See also OSUDE V AZODO & ORS (2015) LPELR – 40709 (CA) and FHOMO (NIG) LTD V ZENITH BANK (2016) LPELR – 42233 (CA).
I therefore hold that even if this issue was not raised by the parties in the Court below but arises from the decision appealed against, which it most certainly does, it is not a fresh issue.

It will be appropriate for me to consider the fact that the appellant did not distill any issue from ground 4 of the grounds of appeal. The simple conclusion which is also the position of the law is that such a ground of appeal has been abandoned. See PDP V INEC (2014) 17 NWLR, PT. 1437, 525; NGILARI V MOTHERCAT (1999) 13 NWLR, PT. 636, 626 and MATHEW V STATE (2019) LPELR-46930(SC). Consequently, ground 4

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of the grounds of appeal is hereby struck out.

Having resolved this preliminary issue, I now turn to a consideration of the issues raised by the parties. Having discountenanced issue (2) as raised by the respondent, we are left with only issue (1). I find that this issue (1) can be appropriately subsumed under the appellant’s issue (1). I will therefore determine this appeal on the two issues raised by the appellant.

Issue (1) is concerned with the burden of proof and whether the claimant/respondent satisfactorily discharged the burden to have entitled her to judgment. The appellants expectedly answered this issue in the negative. The respondent on the other hand did not directly respond to this issue having been focused on its own issue of admission by the defendants/appellants requiring no further proof. This case no doubt brings to the fore the dangers in this new fad of respondents going on their own frolic and formulating issues for determination at the risk of properly responding to the issues raised by the appellant. The preferred practice always is for the respondent to adopt the issues raised by the appellant except where the issues are

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not encompassing enough and especially where the respondent does not have a cross appeal.

The mute but legendary principle on proof is that the burden of proof is on the party who alleges. The phrase that “he who asserts must prove” has become a singsong: DAODU V NNPC (1998) 2 NWLR, PT. 538, 355; LONGE V FBN PLC (2006) 3 NWLR, PT. 967, 228 and ILIYA & ANOR V LAMU & ANOR (2019) LPELR – 47048 (CA). The onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his case on the preponderance of evidence/balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. BUT WHERE A PARTY FAILS TO DISCHARGE THIS BURDEN THEN THE OPPONENT NEEDS NOT PROVE ANY FACT AND THE PARTY ALLEGING CANNOT RELY ON THE OPPONENT’S CASE (Emphases provided). See IMAM V SHERIFF (2005) 4 NWLR, PT. 914, 80; AGBI V OGBEH (2006) 11 NWLR, PT. 990, 65; OWOYEMI V ADEKOYA (2003) 18 NWLR, PT. 852, 307, ELIAS V OMO-BARE (1982) 5 SC, 25 and FAKOMITI V ILORI & ANOR (2018) LPELR – 46367 (CA). What these

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cases are saying in effect is that a party must prove its case on the credible evidence of its witnesses and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeed.
It is appropriate to pause and have a sober consideration of the evidence on record as adduced by the plaintiff/respondent to determine whether they proved their case on the strength of credible evidence of their sole witness inclusive of documentary evidence or they merely relied on the weakness of the defence. The case of the claimant is for the sum of N10,928,455.15 being the balance of the loan facility granted to the 1st defendant which he has failed to pay back despite repeated demands. From the pleadings particularly from paragraph 16, the Board of Directors of the claimant on the 25/04/2004 approved a renewal of the 1st defendant/appellant facility of N1,500,000 for a tenure of 12 months and interest rate of 30% per annum with him depositing his deed of transfer on his two properties as security for the facility. That because the 1st appellant was not servicing the facility as at 2009 the debit balance in the account was N1,872,789

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which indebtedness the 1st defendant/appellant acknowledged. Important to their claim is the pleading on paragraph 27. For clarity I reproduce it:
“The defendant as at date has the sum of Ten Million Nine Hundred and Twenty Eight Thousand Four Hundred and Fifty Five Naira Fifteen Kobo (N10,928,455.15) debit balance in his account with the claimant. The first defendant’s Statement of Account for period between 31st May, 2009 and 2nd November, 2015 is hereby pleaded and shall be relied upon at the trial of this suit.”
It is obvious from this pleading that the claimant was relying on the Statement of Account to support their claim of N10,928,455.15. This is a prerogative in this case as it was necessary for the claimant to satisfy the trial Court as to how N1,500,000 or the alleged acknowledged amount of N1,872,989 metamorphosed to N10,928, 455.15 now being claimed. PW1 was the only witness the claimant called to give evidence in support of their claim. Their evidence was very the terse. After PW1 adopted his witness statement on oath as his evidence in chief on page 104 of the records, all he did from the remaining of page 104-108 is

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simply to formally tender their documents in evidence. These were Exhibits P1-P16. At the end of that the witness only stated that; “The Court should grant our claim”. This sole witness never spoke to any of the exhibits tendered. In the more familiar parlance, the witness or the claimant through its witness never unbundled the documents. He simply dumped them on the Court. Exhibits P15 and P16 are the Statement of Accounts for the periods 01/01/2009 – 09/12/2015 and 01/05/2009 – 05/11/2015 respectively. PW1 did not or perhaps could not explain the entries in these two Statements of Account to show to the Court how the debit balance was arrived at and therefore failed to prove the debit balance against the appellant by credible evidence. It is not the duty of the trial Court to rely on the pleadings of the defendants/appellants to make up for the failure of the claimant to prove its case on the balance of evidence adjudged credible. The authorities have established without a doubt that in a situation such as this, the bank must adduce both documentary and cogent oral evidence to show how the claimed debit balance was arrived at. In other

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words, the bank has a duty to demonstrate through credible oral evidence the analysis of the account, like how much of the debit amount was interest and other bank charges, and establish whether those interests or charges are in line with the agreement between the parties or if there is no agreement, in accord with the usual bank practice or CBN guidelines, etc. See YESUFU V ACB (1986) 1-2 SC; HABIB NIG BANK LTD V GIFT UNIQUE (NIG) LTD (2004) 15 NWLR, PT. 896, 405; WEMA BANK V OSILARU (2008) 10 NWLR, PT. 1094, 150, BIEZAN EXCLUSIVE GUEST HOUSE LTD V UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR, PT. 1246, 246 and IFEMESIA V ECO BANK NIGERIA PLC (2018) LPELR – 46589 (CA). I therefore hold that merely dumping Exhibits P15 and P16, the Statements of Account on the Court, without unbundling them and giving oral evidence as explanation of how the amount became owed cannot on the authority of BILANTE INTERNATIONAL LTD V NDIC (2011) 6 SCNJ, 481, cited by the appellant’s counsel be proof of the amount owed the claimant by the defendant.
I am well aware and the law is trite as supported by SECTION 123 of the, Evidence Act 2011, that what is admitted

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need no further proof. This is an elementary principle of law that does not need to be supported by authorities. What needs to be interrogated in the instant case is whether there is an unequivocal, direct and express admission by the appellants of the respondent’s claim. I am inclined to answer this poser in the negative. Firstly the issue here is in respect of the debt of N10,928,455.15. There is no doubt that the defendant/appellants admit to being indebted to the respondent. But there is no admission of the indebtedness of the claimed amount of N10,928,455.15. Inference cannot be made from the inelegance of the defendants’ pleadings to amount to an admission of the claimed debt of N10,928,455.15. If such inference can be made a at all which is akin to an admission, it is Exhibit 13 dated 20/05/2009 addressed to the claimant’s Manager and written by D. D. Adejumola Esq., solicitor to the defendants/appellants. This letter acknowledges N1,872,789. This is the only amount the in which the learned trial judge could have validly granted judgment in favour of the respondent but never on the claimed amount. To do otherwise or as the trial

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judge has done goes against the spirit of the various authorities I cited earlier in this judgment in support of the principle that where a claimant as in this case relies on Statement of Account he cannot dump the document on the Court without unbundling same. I also venture to say that it will also go against the grain of the settled principle of law that a Plaintiff has to succeed on the strength of his own case and not on the weakness of the defence. This to me will appear to be the case here as the Plaintiff/respondent is seeking to take refuge on the weakness or what I prefer in this case to tag the inelegance of the appellants’ brief.
Again the law is trite and as I have found in this judgment that a party must prove its case on the credible evidence of its witnesses and is not at liberty to make a case out of the weakness of the opponent. In essence the plaintiff/respondent has the burden to prove the allegation of the defendants’ indebtedness to him in the tune of N10,928,455.15 on preponderance of evidence before the onus can shift to the defendant. See ELIAS V OMO-BARE (SUPRA).
In this regard, I uphold the submission of the

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appellants’ counsel that the case of OYEWO V KOMOLAFE (2011) A FWLR, PT. 578, 904 cited by respondent’s counsel in support of admission by the appellants which relieved the respondent of further proof. As a result, I resolve this issue in part in favour of the appellants. In part, because by Exhibit 13 the appellants have admitted indebtedness of N1,872,789.

Having resolved issue (1) in this matter, what purpose will be served by deciding issue (2)? My attitude to this kind of situation is that because this Court is not the last Court, it is always more prudent to resolve all the issues raised should parties opt to exercise their right to a further appeal.

Issue (2) as raised contends that the admission of Exhibits P15 and P16 by the learned trial judge offends Section 84 of the Evidence Act, 2011. The submissions of the appellants’ counsel on this issue seemed a bit jumbled up as he goes between Sections 84 and 97 of the Evidence Act without any focus on SECTION 84 on which the issue was premised. I was beginning to wonder, quite rightly too while counsel did not raise or argue all his objections under issue (1). Indeed, going through the

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arguments of counsel on this issue gives the impression that the issue has to do more with dumping of exhibits on the Court without unbundling them rather than under Section 84 of the Evidence Act. The arguments on issue (2) in the brief are contained on pages 13 to 19 of the appellants’ brief. In the whole of these pages reference was made to Section 84(2) of the Evidence Act only four times. At the risk of being over bearing but to bring home the point effectively I reproduce the submission on those times. The first is at Page 16, two lines before paragraph 3.8 and it goes thus:
“It has not formed the records of this Court that Section 84(2) of the Evidence Act, 2011 was complied with, before the learned trial judge admitted Exhibits P15 and P16 in evidence.”
The second is page 17, second line from the top:
Exhibits P15 and P16 did not pass the test prescribed for the basis of its admissibility as provided under Section 84(2) of the Evidence Act, 2011 and such, remain inadmissible documents.”
The third also at page 17, line 13 from the bottom:
“That provision and evidence led thee upon as it relates to

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this case cannot avail the respondent on Exhibits P15 and P16, not even the learned trial judge who quoted and said piece of evidence in extenso on page 17 of his judgment (page 149 of the records) in this case, in so far the new law in this regard is Section 84(2) of the Evidence Act, 2011 without more.”
And finally at page 18, paragraph 3.9:
“Though the provisions of Section 97 of the Evidence Act, 2004 is in pari material with Section 89 of the Evidence Act 2011, what the law envisages by this provision is the situation or cases in which secondary evidence is to be admitted where the primary evidence is not available, more at a time before computer-generated documents as in a statement of account and the likes was specifically provided for under Section 84(2) of the Evidence Act, 2011. The PW1 did not give evidence that the original prints of the statement of account in Exhibits P15 and P16 were not available in the course of trial and at the point of tendering the said documents in evidence to have at least paved way for its admissibility.”

Without the desire to evaluate these submissions, I can conclude that the learned

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counsel did not once state how the learned trial judge failed to comply with the provisions of Section 84(2) of the Evidence Act. It is gratifying however that the Respondent’s counsel has sufficiently answered the issue in respect of Section 84(2) of the Evidence Act. Counsel submitted that although Exhibits P15 and P16 are computer generated, they are entries in bankers book and are admissible upon fulfillment of certain condition. That those conditions have been complied with by paragraphs 28 & 29 of PW1’s evidence in chief. In other words, counsel’s contention is that Exhibits P15 and P16 complied with Section 84(2) of the Evidence Act, 2011.

From the submissions of the appellants’ counsel as contained in the brief in respect of this issue, I find that there is no submission to support it issue. It is accordingly discountenanced. The submission of counsel to the respondent that both Exhibits sufficiently complied with the requirements of the Evidence Act on admissibility of electronic evidence is hereby upheld. However since the Court has discountenanced Exhibits P15 and P16 on other grounds in this judgment, this holding is

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of no moment in this appeal. This at the risk of repetition is that the claimant/respondent not having unbundled Exhibits P15 and P16, merely dumping them on the Court cannot be sufficient proof of the claimed indebtedness of N10,928,455.15.

This case gives me a unique opportunity to reiterate a point I have been making for many years may be not loud enough. This is in respect of the need to set up small claims Court whose appeals should terminate in the High Court. For how on earth can we complain of heavy work load and delays in this Court when the Court is clogged with a system that permits these type of cases in their corridors? The original facility in this case was valued at N1,500,000. It is interest and other charges that escalated the amount to the claimed sum of N10,928,455.15.

In my humble view, this case and others like it should never find their way to this Court. Perhaps this is an opportune time to overhaul the whole process that will let this Court and indeed the Supreme Court deal only with matters that should come before them. This Court cannot afford to be a routine Court for all manner of cases.

​Having made my point, from all

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my findings in this judgment, I hold that this appeal succeeds in part and it is allowed to that extent. Consequently, the judgment of the lower Court is reviewed as follows:
1). The judgment granting the claimants/respondents N10,928, 455.15 being the balance of the loan facility granted to the 1st defendant is hereby set aside.

This amount is less N100,000 that the trial Court found that the 1st appellant had repaid. From my findings, the only admission of the debt the 1st appellant could be said to have validly and unequivocally made is the one contained in Exhibit 13 dated 20/05/2009 for N1,872,789. This will be less N100,000 paid by the 1st appellant.

Accordingly, I hereby enter judgment in favour of the claimant/respondent in the admitted sum of N1,872,789 and against the defendants/appellants jointly and severally.

The defendants/appellants shall pay interest on this judgment sum to the claimant/respondent at the rate of 10% per annum until total liquidation of the judgment sum.

The finding of the learned trial judge refusing the pre judgment interest is hereby sustained. Both parties are on equal footing in this appeal. They are

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both winners and losers. I therefore make no order as to costs. Each party is to bear its own cost.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment just delivered by my learned Brother, Patricia Ajuma Mahmoud, JCA, in this appeal.

I am at one with His Lordship’s line of reasoning and the conclusion reached by him that the appeal can only succeed in part. I therefore allow the appeal in part and abide by all the consequential orders made in the said leading judgment.
I equally make no order for costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: The lead judgment delivered by my learned brother, Patricia Ajuma Mahmoud, JCA was served on me which I read and found the reasoning together with conclusion apt in resolution of the appeal as presented. I therefore adopt the resolution with nothing useful to add thereto.
There is no order as to costs.

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Appearances:

Mr. Abiodun Olubusade, with him, MS O.E. Ehinmitan For Appellant(s)

Mr. Samuel Folorunso For Respondent(s)