BARR. YEMI GEORGE v. UNITED BANK FOR AFRICA PLC (2019)

BARR. YEMI GEORGE v. UNITED BANK FOR AFRICA PLC

(2019)LCN/12960(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/EK/74/2017

RATIO

CONTRACT: DEFINITION AND FUNDAMENTALS

The learned Author, Treitel, in his book, The Law of Contract 12th Edition in his introduction on the law of contract states thus on page 1:
“A contract is an agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties.”
Chitty, learned Author in his book, Chitty on Contracts, General Principles, Vol. 1, page 10 on the issue of fundamental principles of contract mentioned two linked principles of fundamental importance which one cannot but refer to herein for the purposes of this appeal; they are, the principle of freedom of contract and that of the binding force of contract.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

CIVIL MATTERS: STANDARD OF PROOF IN CIVIL CASES

In civil cases, proof of a matter is determined by the preponderance of evidence or the balance of probabilities. See the cases of IMANA V. ROBINSON 1979 3-4 SC, DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

EVIDENCE: HE WHO ASSERTS MUST PROVE AND WHEN BURDEN OF PROOF SHIFTS TO THE OPPOSING PARTY

The Claimant who asserts has the burden to prove or establish his case with cogent and credible evidence otherwise his case would fail and it does not matter whether or not the defence of the Defendant is weak. He must rely on the strength of his case and not the weakness of the defence. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65. It is after such proof or establishment of his case that the burden shifts to the opposing party. See the cases of DAODU V. NNPC supra, KALA V. POTISKUM supra, ITAUMA V. AKPA-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and a host of others.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

REPLY: WHAT IS A REPLY

REPLY PURPOSE OR ESSENCE OF A REPLY
On the essence of a Reply, the apex Court stated as follows in the case of UNITY BANK PLC. V. BOUARI 2008 LPELR-SC 270/2002:
It is settled that a Reply, is used by a Plaintiff, to answer new issues raised in the statement of defence such as in cases of confession and avoidance. It is therefore, not necessary to file a Reply if its only purpose is to deny the allegations of fact made in the Statement of defence because of the principle of joinder of issues.See further the cases of AKEREDOLU V. AKINREMI 1989 3 NWLR PT. 108 164, DABUP V. KOLO 1993 9 NWLR PT. 317, 254, UMENYI V. EZEOBI 1990 3 NWLR PT. 140 15, OBOT V. CBN 1993 1 NWLR PT. 310 140 and CHIEF ELEAZER IGBOZOR V. PRINCE NYONG EFFIONG 2016 LPELR-CA/C/128/2012.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

APPEAL: AN APPELLATE COURT WILL INTERFERE WHEN THE TRIAL COURT HAS FAILED TO PERFORM ITS DUTY OF EVALUATION OF EVIDENCE

It is trite and settled that, where the Court below fails to satisfactorily perform its duty of evaluation of evidence, the appellate Court will of necessity and in pursuit of justice, interfere. See the case of ENANG V. ADU 1981 11-12 SC 25, IGAGO V. THE STATE 1999 12 SCNJ 140, WOLUCHEM V. GUDI 1981 5 SC 291, KUFORIJI V. V.Y.B LTD. 1981 6-7 SC 25.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

RETRIAL: WHEN WILL AN ORDER OF RETRIAL BE MADE?

It is trite that an order of retrial will be made where the trial Court failed to determine vital issues by not appraising and evaluating the evidence before it. The evidence not evaluated must be material and germane to the live issues before the Court. See Section 15 of the Court of Appeal Act 2004, CAP. 36.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

JUDGMENT: WHAT MUST A PARTY DO WHEN IT WANTS A JUDGMENT AFFIRMED BUT A FINDING SET ASIDE

However, one agrees with the submission of the Appellant that any Respondent seeking the judgment to be affirmed but a finding therein set aside, which is crucial to the case can only do so by filing Respondents Notice or a substantive cross-appeal. See the cases of WILLIAMS V. DAILY TIMES 1990 1 NWLR PT. 124, COLLEGE OF EDUCATION, WARRI & ANOR. V. GLADYS ODEDE 1998 LPELR-CA/B/338/96 and Order 9 Rule 2 of the Rules of this Court.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

JUSTICES

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

BARR. YEMI GEORGE Appellant(s)

AND

UNITED BANK FOR AFRICA PLC Respondent(s)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the decision of the Ekiti State High Court, Ado-Ekiti delivered by Hon. Justice J. O. Adeyeye on March 31st 2016, wherein the claims of the Appellant (the Claimant at the Court below) were dismissed for failure to adduce cogent and convincing evidence. On the other hand, judgment was entered in favour of the Respondent (the Defendant at the Court below) on his Counter-claim on the preponderance of evidence according to the learned Court. See pages 233-276 of the printed Record before this Court.

The following were the claims of the Appellant against the Respondent at the Court below as contained on pages 233-234 of the Record:
a. A declaration that the agreement between the claimant and the defendant is guided by the clauses contained in the forms filled by the claimant dated 1st June, 2009 and submitted to the defendant and the condition of repayment of the said executive loan and nothing more.
b. A declaration that it was never part of the agreement between the claimant and the defendant that repayment date would be 22nd

of every month, the claimant having disclosed that he was a salary earner in a law firm.
c. A declaration that the defendant cannot change the condition of the loan already agreed to mutually at the middle of the facility.
d. A declaration that the late repayment fee deducted by the defendant from the account of the claimant is illegal, and constitutes breach of contract.
e. An order of Court compelling the defendant to pay back all the illegal fees or charges already deducted from the claimant?s account No: 05700020000619.
f. A declaration that the claimant is expected to repay as contained in standard living repayment schedule for 3 years being the plan between the claimant and the defendant and nothing more or less.
g. A declaration that the defendant was in breach of contract when it unilaterally placed a lien on the account of the claimant without just cause in October, 2009 till date and the refusal of the defendant to tender an unreserved apology to the claimant as requested for the claimant in the letter of 4th May, 2010.
h. Damages of N100 million (One hundred million) on the footing of aggravated or exemplary damages.

The Respondent counter-claimed as follows:
a.?6,924,266.28 (Six Million, Nine Hundred And Twenty Four Thousand, Two Hundred And Sixty Six Naira, Twenty Eight Kobo Only) being the loan balance owed the defendant as at 30th April, 2012.
b. 34% annual interest on the loan sum from the date of filing till the determination of this suit.
c. 10% post judgment interest from the date judgment is delivered till the loan is finally liquidated.
ALTERNATIVELY, the defendant/counterclaimant claims as follow;
i. ?4, 432, 263. 71k (Four million, four hundred and thirty two thousand, Two hundred and sixty three Naira seventy one kobo) being the cost of money due as at December, 2010 on the loan, when the claimant abandoned his account and obligation, being the debit balance due to the defendant/counterclaimant arising from the sum advanced to the claimant as executive loan which represents the unpaid principal and interest which the claimant has since failed, refused and neglected to pay despite repeated demand.
ii. Special damages of:
a. Interest at the rate of 22% per annum on the sum of ?4, 432, 263. 71k from December,

2010 until the delivery of judgment.
b. Default charge of 12% per annum on the sum of ?4, 432, 263. 71k from December 2010 until the delivery of judgment and damages.
(iii). Post-judgment interest at the rate of 10% per annum on the judgment sum until the whole judgment debt and cost are fully paid.

As garnered from the Record, the brief gist in respect of the this appeal according to the Appellant, commenced when the Appellant, a Port ?Harcourt based legal practitioner who maintains an account with the Respondent applied for and obtained in June 2009 executive loan to be paid back in 36 months according to the Appellant as contained in the standard living repayment schedule. The loan was granted to him as a member of staff of Federal Polytechnic, Ado-Ekiti and not as Principal of Yemi George & Co. as contained in his application form, Exhibit P2. When he wrote to complain in that regard, according to him, he was told that, that was the Respondent?s practice for executive loan and not a mistake. That, the Respondent in December 2009 returned a cheque he wrote in favour of a client when there was money in his account for the

reason that there was a lien of ?7.5million on the account and he would not be able to withdraw from the account until full payment of the loan given was made. Therefore, he lost a transaction/contract of an expected profit of ?50million. That, the Respondent failed to give him a new cheque book, statement of account nor sent alert anymore on the account. Further that, there were deductions and extraneous charges from the account. The Respondent failed to respond to the Appellant?s offer of paying as full and final payment a sum of ?6, 000, 000 in December 2010 instead of July 2012. See pages 106-113 of the Record.

?The Respondent?s position is that, it never treated the Appellant?s account in any way less than international best standard in banking and the Appellant never complained to it of any wrong doing to his account. That, it was the Appellant who claimed that, he was a member of staff of the Federal Polytechnic Ado-Ekiti and the executive loan of ?5.5 million was given to him on June 10th 2009 upon his application. Thereafter, he denied working with the Institution and refused to sign the offer letter. Therefore, according

to banking tradition which empowered the bank, it placed a lien on the Appellant?s account which he could remove if he returned the loan immediately. That, it was the Appellant?s failure to refund the money after the Respondent?s request that brought about the lien and consequent refusal to honour his cheque as there was no fund to command payment thereon. The Respondent honoured all the requests for cheque book and statement of account and short message service continued on the account with consequent charges according to banking practice. See pages 101-103 of the Record.

Being dissatisfied with the said decision of the Court, the Appellant approached this Court with his Notice of Appeal dated and filed June 27th 2016, as amended, dated and filed on October 9th 2018 and was deemed as properly filed and served on October 11th 2018.
It consists of nine (9) grounds.
RELIEFS BEING SOUGHT HEREIN IN THE MAIN ARE:
a. AN ORDER setting aside the entire judgment of the lower Court, delivered on 31-3-2016 by His Lordship Hon. Justice J. O. Adeyeye.
b. AN ORDER granting all the reliefs/prayers of the Claimant/Appellant.

c. AN ORDER dismissing the counter-claim of the Respondent on the ground that it was not proved as required by law and not supported by admissible facts.
ALTERNATIVELY
d. AN ORDER remitting back this case to High Court, Ado-Ekiti before another Judge for retrial.

Parties in compliance with the Rules of this Court filed and exchanged their briefs of argument. The Appellant?s brief dated March 23rd 2018, filed March 26th 2018 was deemed as properly filed and served on October 11th 2018 and was settled by O. M. Asefon Esq. and the Respondent?s brief dated October 25th 2018 and filed October 25th 2018 was settled by Mr. Musibau Adetunbi Esq. The Appellant on November 19th 2018 filed a Reply brief dated November 15th 2018.

It must be noted at this point that, at the hearing of this appeal on January 26th 2019, the Appellant?s brief was deemed as argued pursuant to Order 19 Rule 9 (4) of the Rules of this Court upon the satisfaction of the Court that there was due notice of hearing on the Appellant?s Counsel. Indeed, Appellant?s Counsel filled the appearance register for Counsel but was absent when the appeal was called and

argued. It needs further be mentioned that, in writing this judgment, the Appellant?s Reply brief dated November 15th 2018 and filed November 19th 2018 was deemed adopted and taken into consideration in the determination of this appeal.

ISSUES SUBMITTED BY THE APPELLANT FOR DETERMINATION
I. Whether the trial Court did misdirect itself in fact and in law when it dismissed the case of the Claimant/Appellant based on unpleaded and extraneous facts without considering or giving probational values to all the oral and documentary evidence put in by the Claimant/Appellant to support his declaratory and other claims? Grounds 1 and 2.
II. Whether the trial Court did not misplace the position of the law on amendment processes and burden on proof by using double standard while resolving issues between the claimant/appellant and defendant/respondent also whether the respondent as a counter-claimant discharged the burden placed on it by law to have made the trial Court to have granted all its counter-claims? Grounds 3, 4, 5, 6 and 8.
III. Whether the trial Court was right to have relied on both oral and documentary evidence of a subpoenaed person

issued with subpoena duces tecum who did not file written deposition before the trial Court to determine the due date of the facility? Grounds 7 and 9.

ISSUES SUBMITTED BY THE RESPONDENT FOR DETERMINATION
1. Taking into consideration the totality of evidence led by parties across the divide and the pleadings of parties across the divide, can it be legally and equitably argued that the Learned Trial Judge got it wrong in dismissing the case of the Appellant and granting all the reliefs sought by the Respondent as counter Claimant before the Honourable Court below. (Grounds 1-8)
2. Whether it was improper for the Learned Trial Judge to have allowed CW2 to testify and tender Exhibits P11 and P12 and if not proper, is this not a case where this Honourable Court should set aside the decision of his Lordship which expunged Exhibits P11 and P12 from the record and to affirm the conclusion of the Learned Trial Judge dismissing the case of the Appellant and granting all reliefs claimed by the Respondent. (Ground 9).

It is trite and firmly settled that this Court can and is entitled to reformulate issue or issues submitted by the parties or Counsel so as

to bring about brevity, clarity and precision. See the cases amongst many others, of UNITY BANK PLC. V. BOUARI 2008 7 NWLR PT. 1086 372, LATUNDE V. BELLO LAJINFIN 1989 5 SC 59; OKORO V. THE STATE 1988 12 SC 191. In that regard therefore, one is of the view and humbly that a sole issue as follows shall fairly and justly determine this appeal:
Whether or not from the evidence placed before the Court by both parties, the Court was right in its decision to have dismissed the entire case of the Appellant and found in favour of the Respondent?s Counter-claim.

APPELLANTS SUBMISSION
Mr. Asefon Esq. submitted that, the Court below was wrong not to have invited the two parties to address it on the propriety of the issue of notice to the Appellant following his letter Exhibit P4 before placing a lien on the account. That, it was wrong of the Respondent to have deducted initial agreed sum from the Appellant?s account when it failed to respond to its letter that sought the correct name, Yemi George & Co and not staff of Polytechnic Ado-Ekiti and for the Court to have held that there was no need for a reply to Exhibit P4.

He cited in support the cases of IRONBAR V. FEDERAL MORTGAGE FIN. 2009 46 WRN 146 174 and OLAWEPO V. SARAKI 2009 45 WRN 80 134 and KABIRIKIM V. EMEFOR 2009 41 WRN 1 23. That, he was never informed of the placement of lien on his account as he never defaulted once in repayment and would not have issued out a cheque. That, by dishonouring the cheque the bank caused him to lose a business profit of ?50, 000, 000. 00.

He submitted that, the Court failed to consider and evaluate the evidence placed before it by both sides and therefore arrived at a wrong conclusion which was prejudicial to the Appellant and cited in support the case of UZUDA V. EBIGAH 2009 48 WRN 1 18. Further that, it failed to consider the Appellant?s written address on the main issues canvassed.

The learned Counsel argued that, the Court was wrong to have concluded that the Appellant did not file a reply to the Respondent?s amended Statement of Defence and Counter-claim and in support cited the cases of UZODINMA V. IZUNASO 2012 2 WRN 1. Further that, the Respondent?s counter-claim was not strictly proved as required by law, for instance the banker?s tariff and the

original letter which was struck out, Exhibit P11 and cited in support the case of UTB NIG. LTD. V. AJABULE 2006 2 NWLR PT. 965 447. That, the Court was wrong to have relied on only the oral evidence of the Respondent?s witness to grant the special damages prayed for and cited further in support the case of EGESIMBA V. ONUZURIKE 2002 15 NWLR PT. 791 481. He submitted that, interest could not be claimed as a right and as granted by the Court which made the Appellant suffer double jeopardy as it granted 34% to the Respondent instead of 22% agreed by the parties and cited in support the cases of ISENSEE V. UBA PLC. 2012 26 WRN 146, FCMB PLC. V. A.G & CO LTD. 2017 37 WRN 82. That, the Court was wrong to have found in favour of the Respondent as there was no proof of the due date for the purposes of computation of the 12 % default interest. Further that, the CBN?s guidelines and Bankers Tariffs are not documents the Court would take judicial notice of as there ought to be evidence given and cross-examination in respect thereof. In support, he cited the cases of UBN PLC. V. IFEOLUWA NIG. ENT. LTD. 2007 7 NWLR PT. 1032 71,

HNB LTD. V. GIFTS UNIQUE NIG. LTD. 2004 15 NWLR PT. 896 408 and DANIEL HOLDINGS LTD. V. UBA PLC. 2005 13 NWLR PT. 943 533 amongst others. The learned Counsel submitted that the PW2 who was subpoenaed to tender certain documents only was wrongly turned into a witness, sworn and cross-examined without a written deposition. In conclusion, he urged that the decision be set aside as it is perverse, dismiss the counter-claim of the Respondent and grant all the reliefs of the Appellant and cited the case of EDILCON NIG. LTD. V. UBA PLC. 2017 44 WRN 55 in support.

RESPONDENT?S SUBMISSION
Mr. Musibau Adetunbi Esq. learned Respondent?s Counsel submitted as follows:
That, the complaint of the Appellant that the Court placed probative value on Exhibit 4, which was not submitted as a ground of appeal, therefore concluding that the lien placed on his account was justifiable, should be struck out. On Ground 2, Exhibit P4, the Appellant?s request for his work place to read Yemi George & Co as opposed to Federal Polytechnic and his willingness to return the money already paid into his account, he submitted that the Court has unfettered discretion to make inference

from the totality of such evidence and in support, cited the case of FANNAMI V. BUKAR 2004 ALL FWLR PT. 198 1210.

The learned Respondent?s Counsel argued that the Appellant failed to discharge the burden of proof placed on him. That, he gave evidence of the application form for the loan facility, Exhibit P2, which could not suffice as the condition for the loan even as the Appellant himself stated under cross-examination at page 152 of the Record that the terms and conditions were not contained in Exhibits P1 and P2. Further that, the Appellant failed to put before the Court actual due date as he claimed not to have defaulted in his repayment of the facility. With Exhibit P2, he claimed that, the repayment dates were 30th or 31st of the month and as well argued that the date should be the first week of the new month which evidence is contradictory. He submitted that the form showed that 30th and 31st were actually stated as the dates his salary might be paid which is clearly different from due date and cited in support the case of EYO V. ONUOHA 2011 11 NWLR PT. 1257 1.

The learned Counsel asserted that, the Appellant himself

agreed that, the Respondent was entitled to the deductions made on his account on the basis of the loan granted to him and the Court was right to act upon it. He cited in support the case of ELEWUJU V. ONISAODU 2000 3 NWLR PT. 647 95 and ONYENGE V. EBERE 2004 13 NWLR PT. 889 P. 20. He submitted that, the Court was right to have held that, the Appellant?s letter Exhibit P4, did not require a response before a refund of the loan as indicated by the Appellant. That, the non-refund of the loan justified the placement of the lien on the Appellant?s account and consequently the Court?s failure to grant the N100Million damages sought by the Appellant.

?He argued that, even though the Appellant filed a Reply to the Respondent?s Statement of defence and Counter-claim, it was an evasive defence of the counter-claim and notwithstanding, agreed that, it was a slip on the part of the Court which according to him was little and inconsequential. The slip did not occasion any injustice neither did it cause the judgment to be perverse as it considered the said Reply and the Court would have still come to the same conclusion and cited in support, the case of

FADLALLAH V. AREWA . LTD. 1997 8 NWLR PT. 518 546. He argued further that, the Appellant could not prove that the Respondent agreed with him that interest would not run. He submitted that, there was no need for the Bankers? tariff as the Appellant admitted the existence of such practice and the Respondent?s entitlement thereto. The Appellant was not consistent as to the due date for monthly payment.

With respect to PW2, the witness by subpoena, the learned Counsel argued that, the purpose of the subpoena issued was clear, to produce and tender notwithstanding the heading thereon and cited the case of FAMAKINWA V. UNIBADAN 1992 7 NWLR PT. 255 608. He argued further that, the Appellant and his Counsel were in Court at the hearing, allowed PW2 to be sworn and having so done have lost any right to complain that it was subpoena duce tecum. Further that, the Appellant has lost the right to complain that there was no witness statement of oath for PW2 and cited the cases of ELIKE V. NWANKWOALA 1984 NSCC 903 and AYA & ANOR V. HENSHAW & ANOR 1972 5 SC 56 and WILLOUGHBY V. INTERNATIONAL MERCHANT BANK LTD. 1987 1 NWLR PT. 48 105 and

LASUN V. AWOYEMI 2011 ALL FWLR PT. 577 713.

The learned Respondent?s Counsel urged that Exhibits P11 and P12 be readmitted as part of the record and be given probative value. That laying foundation in respect of Exhibit P12 can be waived and cited in support the case of KOSSEN NIG. LTD. V. SAVANNAH BANK NIG. LTD. 1995 9 NWLR PT. 420 439. In conclusion, he urged that, the Appellants appeal be dismissed and the decision of the Court below be affirmed.

RESOLUTION OF THE SOLE ISSUE
I have very carefully and painstakingly gone through the Record and all other processes filed before this Court in respect of the instant appeal as well as the said Appellant?s Reply brief. Having so done, one finds that, the issue between the parties herein is that of contract simpliciter, its attendant features/qualifications and consequencies. I shall determine this appeal based on the singular issue which is hereunder reproduced for ease of reference thus:
Whether or not from the evidence placed before the Court by both parties, the Court was right in its decision to have dismissed the entire case of the Appellant and found in favour of the Respondent?s Counter-claim.

Having stated as afore going, I shall proceed to deal in depth in that regard given the evidence that was placed before the Court below and its finding.

KALA V. POTISKUM 1998 3 NWLR PT. 540 1. The Claimant who asserts has the burden to prove or establish his case with cogent and credible evidence otherwise his case would fail and it does not matter whether or not the defence of the Defendant is weak. He must rely on the strength of his case and not the weakness of the defence. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65. It is after such proof or establishment of his case that the burden shifts to the opposing party. See the cases of DAODU V. NNPC supra, KALA V. POTISKUM supra, ITAUMA V. AKPA-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and a host of others.

From the Record and as contained on page 259 thereof, it was not in contention that the Appellant applied for executive loan from the defendant bank, which was granted on June 10th 2009 five million five hundred thousand Naira and disbursed into the account of the Appellant. The disbursement was however before the Appellant got the Respondent?s offer letter, which he refused to sign for the reason that, he never

claimed to be a member of staff of the Federal Polytechnic as he was referred to in the letter. Through the Appellant?s letter, Exhibit P4 dated July 19th 2009, he offered to refund the money disbursed if his place of work was not changed. The Court found no evidence that, Exhibit P4 was replied by the Respondent. It was also not contended that the Appellant failed to refund the money but utilized it. Consequently, the Respondent commenced the deduction and charges from the Appellant?s account and the resultant suit by the latter upon the allegation of excessive charges on his account. At the hearing, the Appellant testified as PW1 and another witness, the relationship Manager, UBA, Ado-Ekiti upon subpoena as PW2. The Respondent had one witness, DW1, a member of staff of UBA Plc. Ado-Ekiti.

The following were the findings of the Court in its evaluation of the evidence before it.
It found that the basis for the Appellants suit was the alleged excessive and illegal charges on the loan facility. The question that immediately follows is whether or not the Appellant established alleged illegal and excessive charges on his account.

According to the Appellant, the full conditions of the said executive loan were contained in the finance repayment schedule for 36 months as he averred and that his account officer informed him that there would be no other charges save those in the schedule. The schedule was tendered and admitted as Exhibit P11 through PW2, an officer with the Respondent upon subpoena. However, the Appellant prayed that it be expunged for not complying with Section 84 (2), (4) and (5) of the Evidence Act. The Court found that, for a computer-generated piece of evidence as the repayment schedule, the proper foundation was not laid. That, there ought to have been oral evidence to establish that it was safe for the Court to rely on it as produced by the computer or in the alternative a certificate as required under Section 84 (4). The Court held that the proper functioning of the computer is required under Section 84 (2) (a) to ensure the reliability of the computer and thereupon, expunged Exhibit P11. See pages 261-263. It is pertinent at this juncture to state that even where Exhibit P11 was expunged, the Court still in my considered view was able to find that the Appellant

failed in his obligation under the loan facility repayment schedule given the evidence before it. The Court found and correctly in my humble view that the Appellant abandoned repayment of the loan as well as the account, he failed to pay as at when due from Exhibit P10, the Appellant?s letter of November 26th 2010 to the Respondent and the evidence of DW1 (pages 159-163 of the Record) which was not challenged with respect to charges for late repayment. The Appellant himself stated thus on page 152 of the Record:
I consented to the deduction of the bank charges because that is the practice of the bank?.Notwithstanding my failure to execute the agreement, I agree that the bank is entitled to interest on the loan.
On page 153 the Appellant stated as follows:
The total amount agreed upon was N7.5 million Naira plus interest.

The contention of the Appellant in support of his assertion that he paid promptly as at when due was not established from the Record and the finding of the Court.

It was contended on behalf of the Appellant that if

Exhibit P11 is expunged, which contained the schedule of payment as aforesaid, the due date for repayment would then be the dates in Exhibit P2, the details of loan request form that he filled, 30th or 31st of every month. Those dates as contained on the said form were in answer to the day of the month that the Appellant?s salary was paid. In my view and humbly and as correctly found by the Court, 30th and 31st of every month could obviously in that regard not be the due date for repayment of the loan. The Court found and correctly that there is a difference between the date the Appellant?s salary was paid and the date for pay back of the loan. Therefore, the date indicated by the Appellant in Exhibit P2 was to show when his salary was paid as earlier stated and not the date for payment of the loan. It stated thus on pages 264-265 of the Record:
“To further demonstrate that Exhibit P2 has not conclusively proved the due date, the claimant when asked under cross examination if the contents of Exhibits P1 and P2 represented the terms and conditions of the loan, he said the terms and conditions are not contained in Exhibits P1 and

P2. That the terms and conditions are in writing duly signed by the bank.
It is therefore clear from the evidence of the claimant under cross examination referred to above that he was aware that Exhibit P2 which he relied upon as the document on the due date does not constitute the terms and conditions to the granting of the loan. The corollary of the above is that the claimant has not established by credible and reliable evidence the repayment date of the loan which is necessary to sustain his claim.

One agrees with the position of the Court and the finding therein which clearly does not assist the case of the Appellant.

As stated earlier, the disbursement of the loan in June 2009 prior to any agreement between the parties was not in contention. From Exhibit P4, Appellants letter of July 19th 2009 to the Respondent, wherein he alleged mistake on the Respondent?s part regarding his personal information, he stated that he could not accept the terms of the loan facility in the wrong name and was prepared to balance up the money within some days and return same to the Respondent, as he had spent out of it.

The Court found that the Respondent did not respond to Exhibit P4 and stated that Exhibit P4 given its content “did not call for any reply from the defendant but prayed for another terms different from the one earlier given. See page 266 of the Record. In my view and humbly, it was not out of place when the Court stated that Exhibit P4 did not call for any reply from the Respondent, that the Appellant should have returned the money when the Respondent failed to accede to his request for change of name of his work place and given the Appellant?s show of readiness to return the money. Whether or not the Respondent responded or requested a refund of the money from the Appellant, the conduct of the Appellant, of having utilized the loan, brought in the binding force of the law of contract. It is pertinent to state that, the argument of the Appellant that the Court did not evaluate the evidence properly cannot stand. From Exhibit P1, the Appellant applied for ?6, 000, 000. 00 executive loan not, ?5, 500, 000. 00 as contained in the offer letter of the Respondent of June 10th 2009. The Appellant still went ahead and in spite of the

wrong name utilized the money disbursed. The fact of the case by Exhibit P4 and the failure of the Appellant to refund the sum advanced is that, the Appellant consented by conduct to the terms of the Respondent. Therefore, and automatically, he came under the binding force of the terms of the Respondents offer. See, The Law of Contract by Treitel, page 20. The Appellants conduct in my view and humbly, clearly indicated an intention to be bound by the contract terms in the Respondents offer letter of June 10th 2009. Consequently, the Court found in favour of the Respondent and stated as follows on pages 266 and 267 of the Record respectively:
From the content of Exhibit P4 the claimant had utilized the loan facility as at the time he wrote Exhibit P4 and having failed to refund the loan facility after the defendant had failed to change the terms as requested by the claimant, the defendant had no choice than to place a lien on the account of the claimant.
I am therefore of the humble opinion that the facts and circumstances of this case coupled with the attitude of the claimant justified the lien placed on his account.

The above in my view and humbly answers the Appellant?s query in his letter of May 4th 2010, Exhibit P8. The issue of not getting alert was resolved by the evidence before the Court which was unchallenged that the Respondent alerted the Appellant in a regular banking way as the regular charges in respect of bank account alerts were deducted.

With respect to PW2, the bank official subpoenaed by the Appellant, the argument was that it was subpoena duce tecum and not ad testificadum. Therefore, he could only produce and not be sworn or cross-examined. After very careful reading of the Record on pages and the copy of the subpoena as on pages 98-100 of the Record, one agrees with the submission of the Respondent?s Counsel that the subpoena was wrongly titled, duce tecum, as it actually in requested that evidence would be given, ad testificadum. Further, it is trite and settled that subpoena duce tecum does not require the producer of the requested document to be sworn. As argued by the Respondent?s Counsel, the Appellant and his Counsel were in Court and failed to raise objection to the

procedure that was embarked upon and the resultant cross-examination of PW2. The Appellant cannot be seen to be objecting at appeal stage to the procedure in my opinion. It was not a miscarriage of justice, he participated in the whole proceeding of that day and the PW2 was his witness, was a competent witness in law. See the cases of ELIAS V. DISU 1962 NSCC 152, FAMAKINWA V. UNIBADAN 1992 7 NWLR PT. 255 608, AMAECHI V. INEC 2008 5 NWLR PT. 1080 227 and GWONTO V. STATE 1983 NSCC P. 119. I shall later on in this judgment comment on Exhibits P11 and P12.

The Appellant because of Exhibit P5, which is the cheque dated December 3rd 2009, in favour of his client in respect of an alleged contract with Chevron Staff Association, Port-Harcourt, contended that the Respondent?s failure to honour the cheque amounted to a breach of his contractual relationship with the Respondent and therefore, prayed for ?100,000,000.00 aggravated or exemplary damages. There was no controversy about the fact that the Respondent indeed dishonoured Exhibit P5 and thereafter informed the Appellant that it placed a lien on his account.

In my considered view and humbly, the

Court was right when it found and held thus on page 267 of the Record:
The claim for damages is incidental to the declaratory reliefs sought particularly in paragraph 35 (g) of the amended statement of claim and having said the facts and circumstances of the case coupled with the attitude of the claimant justified the lien placed on his account by the defendant, I am duty bound to refuse the claim for damages which is incidental, immediate and direct natural consequence of the declaration sought.

It therefore concluded and correctly too as follows on page 268 of the Record:
The claimant having failed to adduce credible, cogent and convincing evidence in support of his claims as required by law is not entitled to the grant of the reliefs. The claims of the claimant are therefore dismissed in their entirety.

One cannot agree more with the findings of the Court on the balance of probabilities and the preponderance of evidence as contained in the Record. As earlier mentioned, the matter involved in this appeal is simply that of contract involving afore stated principles of freedom of

contract and the binding force thereof. It is not possible to eat one?s cake and still have it. The Appellant, by failing to refund the disbursed sum, came under the binding force of the contract of the nature with the Respondent and its attendant consequences which were charges and interests, based on time and standard rates as contained in the evidence in the Record. The Court found and correctly that the Appellant failed to pay promptly and as at when due. He could not prove the due date of deduction and his argument that it was between 30th or 31st of each month could not stand. The contract between the parties was one in which the acceptance was by the conduct of the Appellant. Where that is the case, the law is settled that the Court has considerable power to resolve uncertainties such as the due date which could be inferred from the Respondents offer as 24th of every month. The Court rightly found that the Appellant failed to provide cogent evidence regarding the agreed date for monthly deductions and resolved it by the contents of the offer letter of the Respondent of June 10th 2009.
Further from the Record and the foregoing, one

finds that the Appellant failed to prove the illegal and excessive charges on his account such as would answer in favour of his case. In consequence, the learned Court rightly found against him and therefore dismissed the entirety of his case.

THE COUNTER-CLAIM OF THE RESPONDENT
The Respondent?s Counter-claim as afore stated was granted. The Appellant has equally appealed against it. I shall commence with the issue whether or not the Appellant filed a Reply thereto.

The position of the Court is that there was no Reply to the amended Statement of Defence and Counter-claim but that only an amended Statement of Claim was filed. See page 269 of the Record where the Court stated as follows on page 269 of the Record:
The claimant did not file any reply to the counter-claim contained in the amended Statement of defence and counterclaim but only filed Amended Statement of caim. Since the claimant filed no reply to the amended statement of defence and counter claim it means there is no reply to the Amended statement of defence and counter claim.

The learned Appellants Counsel argued otherwise as well

as the Respondent?s Counsel. On pages 91-92 of the Record, the Appellant?s Reply to the Statement of Defence and Counter-Claim dated February 12th 2013 of eight (8) paragraphs filed on February 14th 2013 as contained. It is necessary to state that the position of the law on the issue was correctly stated by both learned Counsel.

A reply is described as the defence of the Plaintiff to the Counter-claim of the Defendant or to new facts which have been raised by the Defendant in his defence to the statement of claim of the Plaintiff and is therefore filed to answer the Defendants averments in his Counter-claim or to new facts raised in the Statement of defence.
On the essence of a Reply, the apex Court stated as follows in the case of UNITY BANK PLC. V. BOUARI 2008 LPELR-SC 270/2002:
It is settled that a Reply, is used by a Plaintiff, to answer new issues raised in the statement of defence such as in cases of confession and avoidance. It is therefore, not necessary to file a Reply if its only purpose is to deny the allegations of fact made in the Statement of defence because of the principle of joinder of issues.

See further the cases of AKEREDOLU V. AKINREMI 1989 3 NWLR PT. 108 164, DABUP V. KOLO 1993 9 NWLR PT. 317, 254, UMENYI V. EZEOBI 1990 3 NWLR PT. 140 15, OBOT V. CBN 1993 1 NWLR PT. 310 140 and CHIEF ELEAZER IGBOZOR V. PRINCE NYONG EFFIONG 2016 LPELR-CA/C/128/2012 pronounced thus:
Both Counsel submitted to the effect that where a process was amended and the other party felt that, the already filed reply to Statement of Defence and counterclaim before the amendment, took adequate care of the said defence and counter-claim, the said Reply would remain valid and relevant as the amendment dates back to the date of the original defence and counter-claim, to which a Reply was filed. However, the learned Respondent?s Counsel argued that no miscarriage of justice occasioned to the Appellant thereby. One is unable to agree with the submission of the learned Respondent?s Counsel. If the Court stated as it did that there was no Reply by the Appellant to the Respondent?s Counter-claim, it definitely did not consider the said Reply of the Appellant before the Court.
?The effect in my view and humbly is far reaching on the

Counter-claim and determination of same. It is trite and settled that, where the Court below fails to satisfactorily perform its duty of evaluation of evidence, the appellate Court will of necessity and in pursuit of justice, interfere. See the case of ENANG V. ADU 1981 11-12 SC 25, IGAGO V. THE STATE 1999 12 SCNJ 140, WOLUCHEM V. GUDI 1981 5 SC 291, KUFORIJI V. V.Y.B LTD. 1981 6-7 SC 25. It is trite that an order of retrial will be made where the trial Court failed to determine vital issues by not appraising and evaluating the evidence before it. The evidence not evaluated must be material and germane to the live issues before the Court. See Section 15 of the Court of Appeal Act 2004, CAP. 36.
In view of my finding and conclusion, I shall no longer consider the issue with regard to Exhibit P11 and P12. However, one agrees with the submission of the Appellant that any Respondent seeking the judgment to be affirmed but a finding therein set aside, which is crucial to the case can only do so by filing Respondent?s Notice or a substantive cross-appeal. See the cases of WILLIAMS V. DAILY TIMES 1990 1 NWLR PT. 124,

COLLEGE OF EDUCATION, WARRI & ANOR. V. GLADYS ODEDE 1998 LPELR-CA/B/338/96 and Order 9 Rule 2 of the Rules of this Court.
It is consequently in the light of the foregoing that one is of the firm view that, an order of retrial of the Respondent?s Counter-claim shall meet the justice of the case herein.

In the effect and for the sake of clarity, the following orders are made in respect of this appeal;
I. This appeal fails with respect to the case of the Appellant, the decision of the Ekiti State High Court delivered March 31st 2016 by Hon. Justice J. O. Adeyeye, dismissing the Appellant?s claims in its entirety is hereby affirmed;
II. And it succeeds with regard to the decision of the Ekiti State High Court delivered by Hon. Justice J. O. Adeyeye on the Respondent?s Counter-claim, which decision is hereby set aside and a retrial is accordingly ordered.

The Hon. Chief Judge of Ekiti State High Court shall re- assign the Respondent?s Counter-claim to another Judge other than Hon. Justice J. O.Adeyeye.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

?PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

O.M. Asefon, Esq.
For Appellant(s)

Musibau Adetunbi, Esq. with him, R.O. Azeez, Esq. and A.M. Abass, Esq.For Respondent(s)

Appearances

O.M. Asefon, Esq.For Appellant

AND

Musibau Adetunbi, Esq. with him, R.O. Azeez, Esq. and A.M. Abass, Esq.For Respondent

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