BEST GRADE ENTRE-POT LTD v. ECOBANK
(2022)LCN/16026(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, August 02, 2022
CA/L/619M/2014
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
BEST GRADE ENTRE-POT LIMITED APPELANT(S)
And
ECOBANK NIGERIA PLC RESPONDENT(S)
RATIO:
THE TRIAL COURT IS ENJOINED BY LAW TO CONSIDER WHETHER AN EVIDENCE IS ADMISSIBLE IN ASCERTAINING THE WEIGHT OF EVIDENCE
A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412. OBANDE FESTUS OGBUINYA, J.C.A.
THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IS THE PRIMARY DUTY OF A TRIAL COURT
Instructively, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of fact. This primary evidentiary duty falls squarely within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanour and assess the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. OBANDE FESTUS OGBUINYA, J.C.A.
A TRIAL COURT MUST SHOW HOW IT ARRIVE AT ITS FINAL DETERMINATION OF ISSUES BEFORE IT
To discharge the bounden duty, a trial Court must show how and why it arrived at its finding of fact and final determination of the issues before it. It must be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It has to appraise the evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (P1355) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig.) Ltd. v. NPA (2019) 1 NWLR (Pt.1652) 1635; Oguntade v. Oyelakin (2020) 6 NWLR (Pt. 1719) 41. I will be guided by these hallowed legal principles of law on evaluation as the template to meter the propriety or otherwise of the lower Court’s findings in the case. To this end, I have matched the decision of the lower Court with the positions of law outlined above with a view to identifying their infraction or compliance. OBANDE FESTUS OGBUINYA, J.C.A.
THE IMPORTANCE OF PLEADINGS AND THE ESSENTIALITY OF PARTIES AND COURT BEING BOUND BY THE PLEADINGS OF THE PARTIES
Now, the appellant’s foremost nursed grievance orbits around the lower Court’s finding that the fixed loan facility was not pleaded by the appellant. The agitation is a subtle summon on this Court to explore the forensic contours of pleading within the firmament of adjectival law. In a civil action, pleadings are the written statements of the parties wherein they set forth the summary of the material facts on which each party relies either in proof of his claim or his defence, as the case may be, and by means of which the real matters in controversy between the parties and to be adjudicated upon are clearly identified, see Belgore v. Ahmed (2013) 8 NWLR (Pt. 1355) 60. The importance of pleading in our adversarial system of adjudication cannot be overemphasised. It compels feuding parties to define precisely the issues in contention in order to guard against any element of surprise as well as abridge the proceeding between them, see Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307. As a result of their essentiality, parties and Courts are bound by the pleading of the parties; none is allowed to stray away from them, see Abubakar v. Joseph (supra); Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (2010) 16 NWLR (Pt. 1220) 619; Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534; Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535. Any evidence which is not based on the pleadings or at variance with them goes to no issue and liable to be jettisoned by the Court, see UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. At once, any pleadings that is not supported by evidence is deemed abandoned. OBANDE FESTUS OGBUINYA, J.C.A.
THE LAW DOES NOT COMMAND THE IMPOSSIBLE
It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. In legal parlance, those pieces of evidence are at variance with the pleading and go to no issue. In essence, the lower Court’s finding, want of pleading of fixed loan facility with its concomitant effect, is in total alignment with the letter and spirit of the law. It will smell of judicial sacrilege to tinker with a finding that did not disclose any tinge of hostility to the law. OBANDE FESTUS OGBUINYA, J.C.A.
THE INTEREST RATE MUST FALL WITHIN THE UMBRELLA OF THE INTEREST RATE ORDAINED BY THE CBN THROUGH ITS MONETARY POLICY GUIDELINES
However, the interest rate, which usually fluctuates like a pendulum according to whims and caprices of lending financial institution, must fall within the umbrella of the interest rate ordained by the CBN through its Monetary Policy Guidelines. By virtue of the monetary provision of Section 60 (2) (a) of the Banks and other Financial Institution Act, Cap B3, Laws of the Federation of Nigeria, 2004, all financial institutions must comply with those Monetary Policy Guidelines which Courts are restrained from taking judicial notice of. See UBN Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385; UBN Ltd. v. Sax (Nig) Ltd. (1994) 8 NWLR (Pt. 361) 150; UBN PLC v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Daniel Holdings Ltd. v. UBA PLC (2005) 13 NWLR (Pt. 943) 533; Amede v. UBA PLC (2018) 6 NWLR (Pt. 1614) 29. The rationale behind the regulation of interest rate by the Central Bank of Nigeria is not a moot point. In the commercial hemisphere, the CBN, the banker of banks, is the financial supervisor of all financial institutions, see CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> OBANDE FESTUS OGBUINYA, J.C.A.
RELYING ON A DOCUMENT TENDERED AND THE BINDING AGREEMENT OF A CONTRACT
A Court of law can only rely on a document tendered as an exhibit before it and vice versa, see Nigerian Ports Plc. v. B.P.P.T.E. Ltd (2012) 18 NWLR (Pt. 1333) 454; The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584; Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374.
In the wide realm of adjectival law, a rejected document cannot be relied on by the Court, see Nigerian Ports Plc. v. B.P. PTE Ltd. (2012) 18 NWLR (Pt. 1333) 454; Agboola v. State (2013) 11 NWLR (Pt. 1366) 619, Wassah v. Kara (supra); State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108.
A contract is a legally binding agreement between two or more persons whereby rights and duties are acquired by one party in return for acts or forbearances on the part of the other, see Best (Nig) Ltd. v. B.H (Nig) Ltd. (2011) 5 NWLR (pt. 1239) 95. OBANDE FESTUS OGBUINYA, J.C.A.
THE IMPORT OF SANCTITY OF CONTRAC AND PATRTIES TO A CONTRACT ARE BOUND TO ACCOMPLISH THE TERMS OF THEIR CONTRACT
In the eyes of the law, parties to a contract are bound will-nilly to accomplish the terms of their contract. Thus, in the absence of mistake, fraud, deception or misrepresentation, a party must obey terms of contract whether they are favourable, gainful, beneficial or hostile to his interest. That is the import of sanctity of contract. In the heyday of Latin Language, it was couched in the abridged maxim: Pacta sunt servanda-contracts that are not illegal or fraudulent must be observed, see A-G., Rivers State v. A-G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31. Any disobedience to the term in clause 7 of exhibit C2 will certainly deflate the whole essence and effervescence of the existential sanctity of contract which is propagated firmly in the corpus juris of our contract law. The appellant sinks or swims with the clause. The lower Court did not, in the least, fracture the law to warrant any interference by this Court. I accord its immaculate finding a wholesale affirmation. OBANDE FESTUS OGBUINYA, J.C.A.
A COUNTER CLAIM IS AN INDEPENDENT AND SEPERABLE ACTION
It is settled law, beyond any per adventure of doubt, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter-claimant in order to earn the favour of the Court, see Ogbonna v. A-G.., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsefik & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante int’l Ltd v. NDIC (2011)15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017)1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152; Okoro v. Okoro (supra); Atiba Iyalamu Savings & Loans Ltd. v. Suberu (2018) 13 NWLR (Pt. 1639) 387; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29. OBANDE FESTUS OGBUINYA, J.C.A.
ANY BANK THAT CLAIMS A SUM OF MONEY IN ASTSTEMENT OF ACCOUNT OF A CUSTOMER MUST ADDUCE EVIDENCE
The settled position of law is that any bank that claims a sum of money on the basis/footing of the overall debit balance in a statement of account of a customer must adduce evidence, both documentary and oral, to show how the overall debit was arrived at, see Anyakwo v. ACB Ltd. (1976) 2 SC 41 at 46; Yesufu v. ACB (1980) 1-2 SC 49 at 81-82; Bilante Int’ Ltd. v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Unity Bank Plc v. Ahmed (2020) 1 NWLR (Pt. 1705) 364. Contrariwise, the respondent predicated its case on the appellant’s admission of the overdraft facility. OBANDE FESTUS OGBUINYA, J.C.A.
ADMISSION IS THE BEST EVIDENCE AGAINST THE INTEREST OF A PARTY MAKING IT
By way of prefatory remarks, in the mind of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orlanzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247. OBANDE FESTUS OGBUINYA, J.C.A.
THE RECOGNITION OF LAW ON THE WAYS OF DEFENDING ALLEGATION OF INDEBTEDNESSS
The law recognises and sanctions four ways of answering/ defending allegation of indebtedness, videlicet: (a) To admit the debt. (b) To deny the debt. (c) To counter-claim against the debt. (d) To set off against the debt; see Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) 37. Indubitably, the appellant’s response comes squarely within the landscape of the first answer, id est, admission. In this wise, it flows that the defence of want of oral testimony to shore up a statement of account, which the appellant erected, paraded and brandished against the counter-claim, vaporizes and flies in the face of the undiluted admission. In the eyes of the law, a party who makes an admission surrenders himself to the fact and law and plays into the hands of his adversary. The lower Court acted ex debito justitiae when it found in favour of the respondent vis-à-vis the counter-claim. Certainly, any intervention will irritate the law. OBANDE FESTUS OGBUINYA, J.C.A.
WHEN IS A VERDICT OF COURT PERVERSE?
The appellant stigmatised the finding/decision of the lower Court as perverse. Since perversion is the cynosure of the point, it is germane to x-ray its purports for easy appreciation. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onykwelu v. Elf Pet (Nig.) Ltd. (2009) 5 NWLR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Uzodinma v. Ihedioha (2020) 5 NWLR (Pt. 1718) 529. OBANDE FESTUS OGBUINYA, J.C.A.
MISCARRIAGE OF JUSTICE IMPLIES A FAILURE OF JUSTICE
By the same token, the judgment did not occasion a miscarriage of justice. Miscarriage of justice, in law, denotes such a departure from the rules which pervade all judicial process as to make what happened not, in the proper sense of the word, judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, see Larmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi V. W,S.W. Ltd (2012) 7 NWLR (Pt. 1329) 286; Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke V. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467. The appellant starved this Court of the classic evidence illustrating how it was afflicted with miscarriage of justice. It never garnered any substantial rights from its claim that the law aborted. From the concrete evidence, the reasonable probability to earn a favourable result in its favour was, with respect, an echo of mirage. Put starkly, the charge of miscarriage of justice, which the appellant hurled against the decision, is uncharitable and unsustainable. It is not guilty of it. I acquit and discharge it of the pseudo-allegation of a miscarriage of justice. OBANDE FESTUS OGBUINYA, J.C.A.
PLEADINGS ARE THE PILLARS UPON WHICH A PARTY’S CASE IS FOUNDED
Pleadings in any matter is fundamental. Civil litigation is fought on pleadings. They are the pillars upon which a party’s case is founded. A Court is bound to consider only issues raised on the pleadings before it. Evidence given, which is not supported by the pleadings, goes to no issue and will be disregarded. This is the settled position of the law. See also Oshoboja v. Amuda & Ors (1992) LPELR-2804(SC); Falke v. Billiri Local Government Council & Ors (2016) LPELR-40772(CA); Ogbere & Anor v. Ukpo (2021) LPELR-56390(SC). In the same vein, failure by a party to tender evidence in support of the pleadings must result in the collapse of the case of the party; Abe & Anor v. Damawa & Anor (2022) LPELR-57829(SC); CBN & Ors v. Okojie (2015) LPELR-24740(SC); Cameroon Airlines v. Otutuizu (2011) LPELR-827(SC). ONYEKACHI AJA OTISI, J.C.A
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the High Court of Lagos State, Lagos Division (hereinafter addressed as “the lower Court”), coram judice: O. A. Williams, J., in Suit No. ID/1243/2008, delivered on 3rd February, 2014. Before the lower Court, the appellant and the respondent were the claimant and the defendant respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The appellant, a limited liability company, which carries on the business, inter alia, of importation of electrical/electronic goods, was a long-standing customer of the defunct Hallmark Bank Plc (with current account No. 100447100) which was acquired by the respondent, another financial banking institution. Sometime in 2000, the appellant needed funds to clear its imported electrical goods. It approached the respondent and was granted a credit facility of N4M. The conditions for the collaterals and the draw down on the facility were: appellant’s letter of hypothecation of the goods, deposition of the goods (477 racor cartons of filters) in the respondent’s warehouse and taking out life assurance policy on its former Managing Director/Chief Executive Officer – Justine Olumba. The appellant alleged that it did not draw down/utilize the loan facility as the funds were not released, did not reap the dividends of the assurance policy and that racor filters (39 cartons) were damaged in the respondent’s warehouse. It further alleged that the respondent committed irregularities on its account by charging wrong and excessive interests thereon. When the Hallmark Bank Plc was distressed, its liquidator, the Nigeria Deposit Insurance Corporation (NDIC), absolved the appellant of any indebtedness to the respondent and directed the latter to credit its account in the sum of N6.8M. The respondent complied but the appellant considered it insufficient. Sequel to these, the appellant beseeched the lower Court, via a writ of summons filed on 8th July, 2008, and tabled against the respondent the following galaxy of reliefs:
1. A declaration that the claimant is not indebted to the defendant.
2. An order compelling the Defendant to credit the Claimant’s account with the sum of N279,634.30 being excessive charges on fixed loan. With value date being the value date of the interests in fixed loan.
2a. An order of Court compelling defendant to pay interest on N279,634.30 at MRR from 30th January, 1999 till the judgment debt is liquidated.
2b. An order compelling defendant to pay 100% penalty of N279,634.30 in line with CBN rule.
3. An order of Court compelling the defendant to credit the claimant’s account with the sum of N6,616,053.18 excess interest in overdraft. With value date being the value dates of interests in overdraft.
3a. An order of Court compelling the defendant to pay interest on N6,616,053.18 at MRR from 4th day of May, 2000 till the judgment debt is liquidated.
3b. An order compelling the defendant to pay 100% penalty of N6,616,053.18 in line with CBN rule.
4. An order of Court compelling the defendant to credit the Claimant’s account with the sum of N78,309,811 being the amount charged on COT arising from unauthorized debit with value date being the value dates of COT of unauthorized debit.
4a. An order of Court compelling the defendant to pay interest on N78,309.81 in line with CBN rule.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
b. An order of Court compelling the defendant to credit the Claimant’s account with the sum of N12,003,469.74 being the amount on charges on wrong transfers with value date being value date for the wrong transfer.
5a. An order of Court compelling the defendant to pay interest on N12,003,469.74 at MRR from 4th day of May, 2000 till the judgment debt is liquidated.
5b. An order compelling the defendant to pay 100% penalty of N12,003,469.74 in line with CBN rule.
6. An order of Court compelling the defendant to credit the Claimant’s account with the sum of N11,447,938.94 being amount on damaged stock with value date, being 8th September, 2000, the date in which information about the stock was brought to the notice of the Defendant.
6a. And 22% interest on the said amount from the date of judgment till the said debt is liquidated.
7a. An order of Court compelling the defendant to credit the Claimant account with the sum of N11,554,460.50 being insurance claim on the death of the key man – Justice Olumba with value date being the death of the deceased.
7b. Any 22% interest on the said amount from the date of judgment till the said debt is liquidated.
In reaction, upon service of the processes on it, the respondent joined issue with the appellant and denied liability by filing a defence. The respondent denied all the allegations made by the appellant. It claimed that it granted an overdraft of N4M to the appellant which it failed to discharge alongside the accrued penal interests despite repeated concessions and demands. Consequently, it counter-claimed against the appellant as follows:
(i) the sum of N14,321,476.16 (Fourteen Million, Three Hundred and Twenty One Thousand, Four Hundred and Seventy-Six Naira, Sixteen Kobo Only) being sum outstanding and unpaid as at December 30th, 2005 by the Defendant to the Counterclaim on the overdraft facility of N4,000,000 granted to the Defendant to the Counterclaim by the Counter Claimant in the course of its business as a banker and which sum the Defendant to the Counterclaim has failed, refused and neglected to pay despite repeated demands;
(ii) interest on the said N14,321,476.16 at the rate of 29% per annum from December 30th, 2005 to the date judgment may be entered in the suit, and thereafter at the rate of 21% till final liquidation of the judgment debt; and
(iii) cost of this action.
Following the discordant claims by the parties, the lower Court had a full-blown determination of the case. In proof of the case, the appellant called a witness: CW1. In disproof of the case, the respondent fielded a single witness: DW1. Tons of documentary evidence were tendered by the parties. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 3rd February, 2014, reflected at pages 452–472 of the record, the lower Court granted the main claim and the counter-claim in part.
The appellant was aggrieved by the decision. Hence, on 28th February, 2014, the appellant lodged an 8-ground notice of appeal, copied at pages 473–483 of the record, wherein it claimed this Court for:
(a) An order setting aside the judgment delivered in this suit by Hon. Justice O. A. WILLIAMS (MRS), on Monday the 3rd day of February, 2014.
(b) An order giving judgment to the Appellant and granting all the reliefs claimed by it.
(c) An order dismissing the Respondent’s counter-claim.
(d) The cost of the action.
Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of arguments in line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 24th May, 2022.
During its hearing, learned appellant’s counsel, Don Akaegbu, Esq., adopted the appellant’s brief of argument, filed on 11th May, 2018 but deemed properly filed on 26th February, 2019, and the appellant’s reply brief of argument, filed on 11th March, 2019, as representing his argument for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, B.C. Akunya, Esq., adopted the respondent’s brief of argument, filed on 25th February, 2019 but deemed properly filed on 26th February, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant’s brief of argument, learned counsel distilled three issues for determination, to wit:
i. Should not the trial Judge have accepted and given effect to the uncontradicted material allegations of the Appellant and the evidence in support thereof.
ii. Whether in all the circumstances of this case the Respondent proved its counter-claim or any part thereof at the lower Court as to entitle it to the reliefs sought against the Appellant in this suit.
iii. Was the conclusion of the trial Judge dismissing most of the prayers of the Appellant and holding that the counter-claim succeeds in part not occasioned by the lower Court’s faulty appreciation, gross misconception and improper review of the issues of fact and law thrown up by this suit.
In the respondent’s brief of argument, learned counsel crafted two issues for determination, namely:
(1) Whether having regard to the Appellant’s claims and evidence led at the lower Court, the learned trial Judge rightly dismissed the Appellant’s Claims in part.
(2) Whether the trial Court was right to have granted the Respondent’s Counterclaim.
A close look at the two sets of issues shows that they are identical in substance. As a matter of fact, the respondent’s issues can be, conveniently, subsumed under the appellant’s. Given this sameness, I will decide the appeal on the issues nominated by the appellant: the undisputed owner of the appeal.
Arguments on the issues.
Issue one.
Learned counsel submitted that uncontradicted facts must be taken as true and acted upon and admitted fact needs no proof. He relied on Edilco (Nig.) Ltd. v. UBA Plc (2001) FWLR (Pt. 21) 792; N.B.N Ltd. v. Opeola (1994) 1 NWLR (Pt. 319) 126. He observed that the lower Court wrongly held that the respondent had the burden to prove the fixed loan facility which was admitted by the appellant. He stated exhibit C12 showed excess interest charged while exhibit C14 disputed the amount the respondent admitted as excess charges on the overdraft and loan facilities. He reasoned that the lower Court wrongly refused to award the admitted excess interest charged on the loan facility. He noted that the respondent admitted the issue of wrong transfer. He asserted that the lower Court misplaced the burden of proof on the point. He said that the respondent had the burden to prove resolution of the wrong transfer. He stated that the respondent admitted the appellant’s entitlement to excess charges in line with the rules of the Central Bank of Nigeria (CBN).
He asserted that a copy of the CBN Monetary, Credit, Foreign Trade and Exchange Policy Guidelines 2004/2005 (the Guidelines) was admitted without opposition, but the lower Court omitted to give it a number and it failed to consider the Guidelines. He conceded that the Guidelines must be proved by evidence. He cited UBN Plc. v. Ifeoluwa (Nig) Ent. Ltd. (2007) 7 NWLR (Pt. 1032). He maintained that the lower Court’s failure to properly evaluate the evidence occasioned a miscarriage of justice against the appellant.
On behalf of the respondent, learned counsel contended that exhibit C14 was not an agreement nor was there fixed loan agreement between the parties. He noted a party who asserts a term of agreement has the burden to prove it. He relied on Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (Pt. 1092) 339. He added that the respondent did not admit the fixed loan nor were facts about it pleased by the appellant and evidence on it would go to no issue. He cited Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 108) 417. He opined that the lower Court rightly held that the burden was on the appellant to prove its assertion on wrong transfers of fund. He referred to Section 135(1) and (2) of the Evidence Act, 2011; Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (Pt. 326) 252. He explained that the burden of proof was on the appellant who asserted the existence of an error not on the respondent which denied the error in the transfer. He referred to paragraphs 8–11 of the Reply to Statement of Defence and Defence to Counterclaim. He stated that the lower Court was right not to act on the CBN Guidelines because a copy of it was not tendered and marked as an exhibit. He cited Boyewu v. State (2017) LPELR–42321 (CA); Wassah v. Kara (2014) LPELR–24212 (SC). He explained that it is the duty of a party to tender a document, demonstrate and link it to his case and ensure it is marked. He referred to Ladoja v. Ajimobi (sic – no citation). He claimed, in the alternative, that the appellant failed in its duty and rather dumped the document on the Court. He relied on Union Bank v. Onwukwe (2017) LPELR–43279 (CA). He asserted that the CBN Guidelines were inadmissible for not being certified as a public document. He cited Section 104 of the Evidence Act, 2011; Omisore v. Aregbesola (2015) LPELR–24803 (SC).
On points of law, learned counsel posited that the respondent admitted the fixed loan facility in exhibit C12. He added that the appellant’s complaint is against arbitrary interest charged after the wrong transfer. He noted that judgment obtained from misplaced burden of proof is liable to be set aside. He relied on Adighije v. Nwaogu (2011) ALL FWLR (Pt. 559) 1006. He stated that CBN Guidelines were reproduced in the appellant’s address and that the content is enough to account for the missing Guidelines. He cited Ogbu v. State (2003) FWLR (Pt. 147) 1102.
Issue two.
Learned appellant’s counsel submitted that the lower Court wrongly relied on a statement of account, exhibit D7, which contains multiple errors and manipulations to give judgment to the respondent. He asserted, in the alternative, that the statement of account was dumped on the lower Court. He relied on Ishola v. Society General Bank (Nig.) Ltd (1997) 2 NWLR (Pt. 488) 405; FBN Plc. v. Mammon Nig. Ltd. (2001) 3 WRN 38/(2001) FWLR (Pt. 31) 2990. He postulated that a statement of account alone is not sufficient evidence of customer’s debt. He referred to Habib Nig. Bank Ltd. v. Gift Unique Nig. (2004) 15 NWLR (Pt. 896) 405; Wema Bank Plc. v. Osilaru (2008) 8 CLRN 89/10 NWLR (Pt. 1094) 150. He stated that the appellant proved repayment of the facility and the burden shifted to the respondent to prove otherwise. He referred to NBN Ltd. v. Opeola (supra). He explained that exhibit D7 showed no withdrawal but deposits by the appellant which showed that it did not overdraw its account. He added that exhibit C22 showed additional deposits with a single withdrawal of N533,000.00 after the N4M overdraft. He insisted that the appellant’s defence is not the quantum of money but denial of utilisation of overdraft. He took the view that to prove a claim for a customer’s debt, the bank has to prove, through oral evidence, how the debit balance was arrived at. He cited Anyakwo v. ACB Ltd. (1976) 2 SC 41; NBN Ltd. v. Fasoro (1976–1984) 3 NBLR 317. He concluded that the lower Court’s decision was perverse.
For the respondent, learned counsel argued that the respondent never admitted errors on the statement of account but excess charges totaling N90,950.91.
He persisted that the respondent proved its entitlement to the counter-claim because the appellant, in paragraphs 8–11 of its statement of claim, admitted the overdraft of N4M but contended that it had paid it up by excess charges. He stated that the usual way of proving bank debt is by putting in the statement of account or its secondary evidence. He relied on Oceanic Bank International Plc. v. Brokenn Agro Allied Ind. (2008) LPELR–4671 (CA). He enumerated the four ways of answering to allegation of indebtedness. He cited Air Via Ltd. v. Oriental Airlines Ltd. (2004) 9 NWLR (Pt. 878) 298; FCMB v. Rophine (Nig.) Ltd. (2017) LPELR–42704 (CA); Okoli v. Morecab Finance (Nig.) (2007) 14 NWLR (Pt. 1053) 37. He reasoned that the appellant cannot deny liability of admitted debt without showing repayment. He explained that exhibits D7 and C22 have the same contents except their differences in opening and closing dates. He insisted that the fact established that the appellant admitted it took the loan and did not show how it paid and the counter-claim could not be dismissed as it would be a travesty of justice. He referred to FCMB Plc. v. Rophine Nig. Ltd (supra).
On point of law, learned appellant’s counsel postulated that it showed how it paid the facility in exhibit C13A.
Issue three.
Learned appellant’s counsel submitted that judgment of the lower Court is perverse. He relied on Okhuarobo v. Aigbe (2002) 9 NSCQR 628. He stated that the judgment is lacking in proper evaluation of evidence. He observed that the respondent nor insurance company did not the pay the appellant on the death of Mr. Justine Olumba. He described the respondent’s denial of liability as general traverse which ought not to be adopted in such material allegations. He cited Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414. He stated that the lower Court failed to make proper evaluation of DW1’s evidence before reliance on it. He described the DW1 as lacking in credibility, accuracy, reasonableness and documentary support because he was not an accountant, knowledgeable or expert in financial matters which he testified to. He added that DW1 gave inaccurate evidence on the contents of exhibits C1, C12 and C22. He maintained that DW1 did not support his claim with any documentary showing that the appellant utilised the overdraft facility even as exhibit D7 was no proof of it. He observed that the lower Court wrongly disregarded the evidence in exhibit C12 and made a retroactive application of exhibit C2, in respect of the appellant’s damaged stock, which led to a miscarriage of justice for the appellant. He opined that the lower Court wrongly applied exhibit C2 regarding the interest of 22% on the prayer for payment of interest on the value of the damaged stock. He claimed that a Court is bound by pleadings and must confine itself to cases presented by the parties. He referred to Chochukwu v. A-G., Rivers State (2012) 2 MJSC (Pt. II) 65. He reasoned that the judgment was wrongly based on the private knowledge of the Judge. He relied on Osawe v. Asuan (1992) 4 NWLR (Pt. 235) 294. He concluded that an appellate Court has a duty to correct errors emanating from a lower Court. He cited Govt. of Akwa Ibom v. Powercom Nig. Ltd. (sic – no citation).
On the part of the respondent, learned counsel contended that the respondent made specific and direct denial of the appellant’s claim on insurance in paragraphs 7 and 20 of its statement of defence to warrant calling for proof. He relied on Comptroller General, Nigeria Customs Service v. Minaj Holdings Ltd. (2017) LPELR–43055 (CA). He stated that DW1 was qualified to give evidence for the respondent, a juristic person that act through agents and servants, for transactions that occurred before he was employed. He cited FCMB v. Rophine (Nig.) Ltd (supra); Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116. He noted that no law states a Court should not rely on the evidence of a bank staff because he has no degree in banking. He posited that the lower Court performed its duty in interpreting exhibit C2 – terms of agreement – as it has no power to rewrite it. He referred to Nika Fishing Co. Ltd. v. Lavina Corporation (2008) LPELR–2035 (SC). He persisted that the issue of 22% interest on the value of the damaged stock was not supported by pleading, agreement, mercantile custom or law and so not awardable to the appellant.
On points of law, learned appellant’s counsel explained that his complaint is not on the incompetency of the DW1 or his evidence was hearsay but that he was not knowledgeable on the matter he testified about. He stated that in exhibit C22, the respondent, at pages 308 and 310 of the record, debited the appellant’s account with warehouse/ insurance charges showing that the appellant discharged the burden of proof on those charges on damaged stock. He insisted that exhibit C2 came after the damaged goods for the respondent to evade liability on the damage. He maintained that the burden of proof in civil matters is never static but shifts from one party to the other. He cited Agbakoba v. INEC (2009) ALL FWLR (Pt. 462) 1037.
Resolution of the issues.
A clinical audit of the trinity issues, clearly, reveals that they are intertwined as they share a common mission, id est, to puncture the lower Court’s evaluation of the evidence before it on proof of the main claim and the counter-claim. In the face of this interwoven relationship, I will, in order to conserve the scarce juridical time and for spatial constraint, amalgamate them and fuse their considerations without each issue compromising its identity. The kernel of the three issues is clear. They chastise the lower Court’s evaluation of the evidence. Put bluntly, the appellant accused the lower Court of improper evaluation of evidence because the judgment was against the weight of evidence.
A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.
Instructively, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of fact. This primary evidentiary duty falls squarely within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanour and assess the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221.
An appellate Court is disrobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility of witnesses, see Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt.1695) 289.
To discharge the bounden duty, a trial Court must show how and why it arrived at its finding of fact and final determination of the issues before it. It must be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It has to appraise the evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (P1355) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig.) Ltd. v. NPA (2019) 1 NWLR (Pt.1652) 1635; Oguntade v. Oyelakin (2020) 6 NWLR (Pt. 1719) 41. I will be guided by these hallowed legal principles of law on evaluation as the template to meter the propriety or otherwise of the lower Court’s findings in the case. To this end, I have matched the decision of the lower Court with the positions of law outlined above with a view to identifying their infraction or compliance.
By happenstance, loads of documentary evidence were furnished before the lower Court by the feuding parties. In point of fact, the case was fought majorly on documentary evidence. Interestingly, the case law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagungu v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt.1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuraike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will harness from this co-ordinate jurisdiction in the appraisal of the legion of documents in the appeal.
Now, the appellant’s foremost nursed grievance orbits around the lower Court’s finding that the fixed loan facility was not pleaded by the appellant. The agitation is a subtle summon on this Court to explore the forensic contours of pleading within the firmament of adjectival law. In a civil action, pleadings are the written statements of the parties wherein they set forth the summary of the material facts on which each party relies either in proof of his claim or his defence, as the case may be, and by means of which the real matters in controversy between the parties and to be adjudicated upon are clearly identified, see Belgore v. Ahmed (2013) 8 NWLR (Pt. 1355) 60. The importance of pleading in our adversarial system of adjudication cannot be overemphasised. It compels feuding parties to define precisely the issues in contention in order to guard against any element of surprise as well as abridge the proceeding between them, see Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307. As a result of their essentiality, parties and Courts are bound by the pleading of the parties; none is allowed to stray away from them, see Abubakar v. Joseph (supra); Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (2010) 16 NWLR (Pt. 1220) 619; Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534; Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535. Any evidence which is not based on the pleadings or at variance with them goes to no issue and liable to be jettisoned by the Court, see UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. At once, any pleadings that is not supported by evidence is deemed abandoned.
I have consulted the record, the spinal cord of every appeal. My port of call is at the residence of the appellant’s 47 paragraph amended statement of claim (pleading) which colonises pages 316–325 of the mountainous record. I have perused it with the finery of a toothcomb. Admirably, it is obedient to clarity and comprehension. The law commands the Court to read pleading holistically in order to garner a flowing story of it, see Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1; Agi v. PDP (2017) 17 NWLR (Pt. 1595) 366; NNPC v. Roven Shipping Ltd. (2009) 9 NWLR (Pt. 1676) 67.
I have, in total loyalty to this injunction, given a global examination to the appellant’s pleading, id est, the amended statement of claim, in order to ascertain its import. Incidentally, I am unable to locate, even with the prying eagle-eye of an appellate Court, where the appellant weaved any averment on the contract of fixed loan facility. It is curious that the windy amended statement of claim, which warehouses an army of variegated causes of action, is bereft/void of such a critical averment which is a sine qua non for the legality of the appellant’s complaint on fixed loan facility. In the glaring face of the want of pleading of fixed loan facility, the parol evidence thereon, which were elicited from the witnesses, CW1 and DW1, in the cross-fire of cross-examination, acquired the uneviable status of an orphan. The reason is simple. Those pieces of concrete evidence are robbed of the necessary substratum/legal parentage to perch and claim any validity. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. In legal parlance, those pieces of evidence are at variance with the pleading and go to no issue. In essence, the lower Court’s finding, want of pleading of fixed loan facility with its concomitant effect, is in total alignment with the letter and spirit of the law. It will smell of judicial sacrilege to tinker with a finding that did not disclose any tinge of hostility to the law.
The appellant’s other grudge appertains to the allegation of wrong transfer of funds against the respondent. It is apropos to query if the allegation was one of the appellant’s litany of causes of action. To begin with, a cause of action connotes a combination of facts which, if proved or substantiated, entitles a party (plaintiff) to an enforceable right/remedy against a wrongdoer (defendant). It consists of two elements, the wrongful act of the defendant, which bestows cause of action on a plaintiff, and the consequent damage, see Savage v. Uwechia (1972) 3 SC 214; Omomeji v. Kolawole (2008) 14 WLR (Pt. 1106) 180; Iliyasu v. Rijau (2019) 16 NWLR (Pt. 1697) 1, Maigari v. Malle (2019) 16 NWLR (Pt. 1697) 69; Oteri Holdings Ltd. v. Oluwa (2021) 4 NWLR (Pt. 1776) 334.
The content of a writ of summons or statement of claim determines the existence or otherwise of a cause of action, see Shell B.P. Ltd. v. Onasanya (1976) 6 SC 89, 7-Up Bottling Co. v. Abiola & Sons (2001) 13 NWLR (Pt. 730) 469, UBN Plc v. Umeoduagu (2004) 13 NWLR (Pt. 890) 350.
Again, in order to pacify the law, I have given a microscopic examination to the appellant’s prolix amended statement of claim – the legally accepted barometer with which to measure/gauge the presence or absence of a cause of action in any matter. Amazingly, despite my employment of all the meticulosity in burrowing through the comprehension-friendly amended statement of claim, I cannot find where the appellant made wrong transfer of funds a cause of action therein. In other words, wrong transfer of funds is not housed as cause of action in the statement of claim which hosts flood of causes of action against the respondent. In so far as the allegation, wrong transfer of funds, does not come within the perimeter of the statement of claim, it does not deserve any consideration by the lower Court or this Court. On this score, all the diatribes, which the appellant rained against the lower Court’s finding thereon, pale into insignificance. This Court is not equipped with any vires to reprobate a finding that does not constitute an affront to the law.
By the same token, the appellant’s grouse over the life assurance policy finds no justification in the wide province of procedural law. The reason is plain. Admittedly, the appellant pleaded copiously facts on the keyman life assurance policy over late Justine Olumba.
However, the appellant, for reason(s) best known to it, failed/neglected to support and consolidate the averments with the requisite evidence. A factual averment without corresponding evidence, documentary or viva voce, renders it a barren pleading. Pleading and evidence must exist concurrently to impregnate a cause of action with success. In this regard, the appellant defiled the adjectival law. In effect, the lower Court’s finding is not offensive to the law as to magnet the reprobation of this Court. I, per contra, endorse it in toto.
Another grouch, which irritated the appellant, circles around the lower Court’s denial/deprivation of interest and penalty on established excess charges. Interest connotes compensation permitted by law or agreed/fixed by the parties for the use or forbearance of borrowed money. It is the money/payment a borrower pays a lender for the use of the money sought and obtained by the borrower from a lender. It is the cost of utilisation of credit or funds of another, see Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (Pt. 1105) 486.
Interest rate refers to the percentage of an amount of money which is paid for its use for a specified time, see Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2018) 13 NWLR (Pt. 1105) 486.
However, the interest rate, which usually fluctuates like a pendulum according to whims and caprices of lending financial institution, must fall within the umbrella of the interest rate ordained by the CBN through its Monetary Policy Guidelines. By virtue of the monetary provision of Section 60 (2) (a) of the Banks and other Financial Institution Act, Cap B3, Laws of the Federation of Nigeria, 2004, all financial institutions must comply with those Monetary Policy Guidelines which Courts are restrained from taking judicial notice of. See UBN Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385; UBN Ltd. v. Sax (Nig) Ltd. (1994) 8 NWLR (Pt. 361) 150; UBN PLC v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Daniel Holdings Ltd. v. UBA PLC (2005) 13 NWLR (Pt. 943) 533; Amede v. UBA PLC (2018) 6 NWLR (Pt. 1614) 29. The rationale behind the regulation of interest rate by the Central Bank of Nigeria is not a moot point. In the commercial hemisphere, the CBN, the banker of banks, is the financial supervisor of all financial institutions, see CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
In due obeisance to the desire of the law, I have made another excursion into the record – the bedrock of the appeal – particularly at page 424 thereof which is the domain of the proceedings of 2nd March, 2012 before the lower Court. The relevant notes are what transpired at page 424, lines 13–17, of record. Due to its importance, I will pluck out those notes from where they are domiciled in the record, ipsissima verba, as follows:
Okonkwo: I seek to tender the four documents on our additional list from the bar.
Apata: In order to make progress, I do not object.
Court: I observe that these documents have already been admitted in evidence.
Okonkwo: I withdraw them. I hereby close the case of the claimant.
Apata: I am ready to open the defence.
By accident or design, a copy of that CBN Guidelines is among the bundle of documents, listed at page 157 of the record, which was withdrawn by the appellant’s counsel. Consequently, the document, CBN Guidelines, did not make the list of the avalanche of exhibits outlined at pages 422–425 of the elephantine record. The net effect is obvious. The appellant, in its infinite wisdom, did not furnish the lower Court with it during the trial proceedings. The failure is a costly one. The reason is not far-fetched. It never acquired the enviable status of an exhibit with the adjudicatory gains attendant to it. An exhibit denotes a document, record or other tangible objects formally introduced as evidence in Court, see Lucky v. State (2016) 13 NWLR (Pt. 1528) 128.
A Court of law can only rely on a document tendered as an exhibit before it and vice versa, see Nigerian Ports Plc. v. B.P.P.T.E. Ltd (2012) 18 NWLR (Pt. 1333) 454; The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584; Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374.
In the wide realm of adjectival law, a rejected document cannot be relied on by the Court, see Nigerian Ports Plc. v. B.P. PTE Ltd. (2012) 18 NWLR (Pt. 1333) 454; Agboola v. State (2013) 11 NWLR (Pt. 1366) 619, Wassah v. Kara (supra); State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108.
Alas, CBN Guidelines, which would have assisted the appellant to prove interest and penalty on established excess charges, was a document ex facie curiae to the benefit of the respondent. A Court of law, both trial and appellate, is divested of the jurisdiction to act on a document that is not furnished before it. To do so will smack of speculation which is an aberration in adjudication. The lower Court was disrobed of the quality of clairvoyance as to know the contents of the CBN Guidelines. It, therefore, did not insult the law when it failed to rely on it in the determination of the case. The absence of the CBN Guidelines, as an exhibit before the lower Court, constitutes a serious coup de grace to the appellant’s already limping case. Its exit from the lower Court, with due reverence, exposes the poverty of the learned appellant’s counsel’s scintillating argument on the point. It is disabled from its birth. It cannot fly!
A party who lists a document must endeavour to have it tendered, received and marked as an exhibit by a trial Court. In the absence of that, it will merely be lying fallow in the Court’s file without any benefit to the party. It is only when a document metamorphoses into an exhibit that it will serve the purpose for which it is brought to the Court.
At this juncture, it is apropos to settle the appellant’s quarrel over its claims on the damaged stock – 339 cartons of racor filters. The lower Court’s finding is staked on exhibit C2 – letter of hypothecation – dated 6th October, 2000. It monopolises pages 125–129 of the record. The lower Court relied specifically on clause 7 therein. Being the cynosure of the finding, it is germane to mine it (clause 7) out from where it is ingrained in the record, verbatim ac literatim, as follows:
That I/We shall bring the continuous of this hypothecation be responsible for all loss, damage or deterioration of the hypothecated goods caused by theft, fire, rain or any other causes whatever, whenever and in whatever godowns premises shed or places they may be.
It admits of no argument that exhibit C2 falls within the four walls of documents in that its contents are “expressed or described upon any substance by means of letters, figures or marks”, Section 258 of the Evidence Act, 2011. Remarkably, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, see Ojokolobo v. Aremu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219.
In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these legal commandments, on canons of interpretation of document, in order not to insult the law.
Indisputably, the content of clause 7 of exhibit C2, catalogued above, is rebellious to woolliness and equivocation. The ambitious clause, in an unmistakable term, heaps the responsibility of loss, damage or deterioration, howsoever caused and germinating from any source, on the shoulder of the appellant throughout the incubation and gestation period of the hypothecation – the pledging of something (chattel/property) as a security or collateral for a debt without delivery of title or possession thereof. The law donates generously freedom of contract to contracting parties such that even government policy cannot extinguish the right, see Statoil (Nig.) Ltd. v. Inducon (Nig.) Ltd. (2021) 7 NWLR (Pt.1774) 1. By the appellant’s endorsement/authorship of exhibit C2, it, on its own volition, accepted unreservedly to bear the brunt of any losses or damages caused to its wares, no matter the cause, in whichever place or warehouse/go down. The appellant’s complaint is trapped in the intractable vortex of the maxim volenti non fit injuria – there is no injury to one who consents. It is a binding term in their contract.
A contract is a legally binding agreement between two or more persons whereby rights and duties are acquired by one party in return for acts or forbearances on the part of the other, see Best (Nig) Ltd. v. B.H (Nig) Ltd. (2011) 5 NWLR (pt. 1239) 95.
It is trite law, in the days of the yore, that the parties and Courts are bound by the terms of the contracting parties. In other words, the law does not allow either the parties or the Courts to add to or subtract from terms of the contract reached by the parties by dint of consensus ad idem, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (supra); JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 19 NWLR (Pt.1225) 495; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111; A.G. Ferrero & Co. Ltd. v. H. C. (Nig.) Ltd (2011) 13 NWLR (Pt. 1265) 592; Nwaolisah v. Nwabufo (2011) 14 NWLR (Pt.1268) 600; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278); P.M. Ltd. v. The “M. v. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Uwah v. Akpabio (2014) 7 NWLR (Pt. 1407) 172; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Cannitec Int’l Co. Ltd. v. Solel Bonech (Nig.) Ltd. (2017) 10 NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35; Adedeji v. Obajimi (2018) 16 NWLR (Pt. 1644) 146; Okoro v. Okoro (supra); Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219.
The appellant must respect clause 7 of exhibit C2 as it constitutes a binding term of the overdraft facility contract inter partes. In the eyes of the law, parties to a contract are bound will-nilly to accomplish the terms of their contract. Thus, in the absence of mistake, fraud, deception or misrepresentation, a party must obey terms of contract whether they are favourable, gainful, beneficial or hostile to his interest. That is the import of sanctity of contract. In the heyday of Latin Language, it was couched in the abridged maxim: Pacta sunt servanda-contracts that are not illegal or fraudulent must be observed, see A-G., Rivers State v. A-G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31. Any disobedience to the term in clause 7 of exhibit C2 will certainly deflate the whole essence and effervescence of the existential sanctity of contract which is propagated firmly in the corpus juris of our contract law. The appellant sinks or swims with the clause. The lower Court did not, in the least, fracture the law to warrant any interference by this Court. I accord its immaculate finding a wholesale affirmation.
The last coup de main pertains to the lower Court’s part grant of the respondent’s counter-claim. It chastises its grant as against the tenet of the law. Incontestably, the complaint is cannalised within a narrow compass.
A counter-claim connotes “a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim,” see Maobison Inter-Link Ltd. v. UT.C. (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 197 at 209, per Ariwoola, JSC.
It is settled law, beyond any per adventure of doubt, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter-claimant in order to earn the favour of the Court, see Ogbonna v. A-G.., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsefik & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante int’l Ltd v. NDIC (2011)15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017)1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152; Okoro v. Okoro (supra); Atiba Iyalamu Savings & Loans Ltd. v. Suberu (2018) 13 NWLR (Pt. 1639) 387; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29.
In a spirited bid to castrate/emasculate the counter-claim, the appellant invented the defence of want of oral evidence in support of the statement of account upon which the respondent verged its counter-claim.
The settled position of law is that any bank that claims a sum of money on the basis/footing of the overall debit balance in a statement of account of a customer must adduce evidence, both documentary and oral, to show how the overall debit was arrived at, see Anyakwo v. ACB Ltd. (1976) 2 SC 41 at 46; Yesufu v. ACB (1980) 1-2 SC 49 at 81-82; Bilante Int’ Ltd. v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Unity Bank Plc v. Ahmed (2020) 1 NWLR (Pt. 1705) 364. Contrariwise, the respondent predicated its case on the appellant’s admission of the overdraft facility.
By way of prefatory remarks, in the mind of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orlanzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247.
Be that as it may, it is an elementary law that an admission is binding on its maker if it is clear, unequivocal and devoid of misapprehension of facts, see Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230.
A Court has a bounden duty to examine the entire pleadings of a party in order to determine if there is admission, see Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429) 93; Agi v. PDP (2017) 17 NWLR (Pt. 1595) 366; NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676) 67.
In due fidelity to the dictate of the law, I have, again, given a universal examination to the appellant’s pleading – amended statement of claim, which is wrapped between pages 316–325 of the record – the touchstone of the appeal. The 47 – paragraph verbose pleading is dotted with the grant of the overdraft facility. The appellant admitted unequivocally that the respondent granted an overdraft facility of N4M to it on 17th August, 2000. This is concretised by exhibits D1, D4 and D6. Indeed, it is decipherable from the phraseology and tenor of the pleading that the main plank of the appellant’s case was the grant of the overdraft. In the face of the undiluted admission of the grant of the overdraft facility, the appellant was/is mired in debt or indebtedness to the respondent. Debt or indebtedness implies a state of owing money, or something owed, or debt to another person, see Barbedos and Ventures Ltd. v. FBN Plc (2016) 4 NWLR (Pt. 1609) 241.
The law recognises and sanctions four ways of answering/ defending allegation of indebtedness, videlicet: (a) To admit the debt. (b) To deny the debt. (c) To counter-claim against the debt. (d) To set off against the debt; see Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) 37. Indubitably, the appellant’s response comes squarely within the landscape of the first answer, id est, admission. In this wise, it flows that the defence of want of oral testimony to shore up a statement of account, which the appellant erected, paraded and brandished against the counter-claim, vaporizes and flies in the face of the undiluted admission. In the eyes of the law, a party who makes an admission surrenders himself to the fact and law and plays into the hands of his adversary. The lower Court acted ex debito justitiae when it found in favour of the respondent vis-à-vis the counter-claim. Certainly, any intervention will irritate the law.
My noble Lords, in the spirit of completeness, the lower Court in its judgment, which is in the heat of expunction, dedicated/devoted pages 464-472 of the wordy record, to the appraisal of the evidence, both oral and documentary evidence, presented by the contending parties before it. The lower Court, to my mind, carried out a meticulous and thorough analysis of the evidence, viva voce and documentary, proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties.
It found that the respondent’s pan in the proverbial scale of justice hosted more admissible, credible and conclusive evidence in relation to the counter-claim. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474.
The lower Court found, rightly in my view, that the evidence of the appellant on the main claim, based on their qualitative nature, preponderated/outweighed those of the respondent and vice versa on the counter-claim. The net effect is that the appellant partly proved the main claim as much as the respondent proved the counter-claim partially. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt.272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399. (Pt. 1372) 474; APC v. Karfi (2018) 6 NWLR (Pt. 1616) 479; Ojobo v Moro (2019) 17 NWLR (Pt. 1700) 166.
The appellant stigmatised the finding/decision of the lower Court as perverse. Since perversion is the cynosure of the point, it is germane to x-ray its purports for easy appreciation. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onykwelu v. Elf Pet (Nig.) Ltd. (2009) 5 NWLR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Uzodinma v. Ihedioha (2020) 5 NWLR (Pt. 1718) 529.
I have, in total allegiance to the desire of the law, situated the judgment, sought to be decimated, with the elements of perverse decision catalogued above. The raison d’etre behind the juxtaposition is simple. It is to discover if the judgment is enmeshed in the intractable nest of the elements of perversion chronicled above. The judgment of the lower Court, which is submissive to clarity, is not antithetical to the pleadings and evidence presented before it by the contending parties. At the same time, the lower Court did not import alien/foreign matters into the judgment. It utilised the evidence the parties presented before it as displayed above. The finding does not, in the least, smell of any charge of perversity levelled against it by the appellant. In effect, the decision of the lower Court is not marooned in the murky ocean of perversion to fetch the intervention of this Court.
By the same token, the judgment did not occasion a miscarriage of justice. Miscarriage of justice, in law, denotes such a departure from the rules which pervade all judicial process as to make what happened not, in the proper sense of the word, judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, see Larmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi V. W,S.W. Ltd (2012) 7 NWLR (Pt. 1329) 286; Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke V. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467. The appellant starved this Court of the classic evidence illustrating how it was afflicted with miscarriage of justice. It never garnered any substantial rights from its claim that the law aborted. From the concrete evidence, the reasonable probability to earn a favourable result in its favour was, with respect, an echo of mirage. Put starkly, the charge of miscarriage of justice, which the appellant hurled against the decision, is uncharitable and unsustainable. It is not guilty of it. I acquit and discharge it of the pseudo-allegation of a miscarriage of justice.
Flowing from this expansive tour d’ horizon on evaluation of evidence, done in consonance with the law, the lower Court’s ultimate finding is an immaculate one. It did not transgress the law to render its faultless finding guilty of the accusation of perfunctory evaluation of evidence preferred against it by the appellant. In fact, it is a phantom allegation. In this wise, I, with due deference, dishonour the learned appellant’s counsel’s salivating invitation to sacrifice the finding, on the partial proof of the main claim and counter-claim, on the underserved altar of improper evidential evaluation. In the end, I have no option than to resolve the conflated issues one, two and three against the appellant and in favour of the respondent.
Having resolved the three issues against the appellant, the destiny of the appeal is obvious. It is bereft of any ounce of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the appeal. Accordingly, I affirm the judgment of the lower Court delivered on 3rd February, 2014. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal.
ONYEKACHI AJA OTISI, J.C.A.: I read in advance, a copy of the judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA. in which this appeal was dismissed. I completely agree with, and adopt as mine, the reasoning and conclusions therein, as presented by my learned brother. I will only make few comments for emphasis.
Pleadings in any matter is fundamental. Civil litigation is fought on pleadings. They are the pillars upon which a party’s case is founded. A Court is bound to consider only issues raised on the pleadings before it. Evidence given, which is not supported by the pleadings, goes to no issue and will be disregarded. This is the settled position of the law. See also Oshoboja v. Amuda & Ors (1992) LPELR-2804(SC); Falke v. Billiri Local Government Council & Ors (2016) LPELR-40772(CA); Ogbere & Anor v. Ukpo (2021) LPELR-56390(SC). In the same vein, failure by a party to tender evidence in support of the pleadings must result in the collapse of the case of the party; Abe & Anor v. Damawa & Anor (2022) LPELR-57829(SC); CBN & Ors v. Okojie (2015) LPELR-24740(SC); Cameroon Airlines v. Otutuizu (2011) LPELR-827(SC).
In the instant case, the deficient pleadings of the Appellant and the failure to tender required evidence in support of the pleadings, settled the destiny of the action. I also see no merit in this appeal.
I abide by the orders in the leading judgment.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA wherein the issues in contention are set out in extenso.
The role of an appellate Court is not that of a finicky faultfinder raking up non-existent defects in decisions of lower Courts with a view to upturning same. No. The trial Court is a peculiar adjudicator upon whose shoulder the heaviest burden of adjudication lies. Evaluation of evidence and ascription of probative value is the forte of a trial Court, and an appellate Court will not lightly interfere unless for compelling reasons. It is if, and only if, the evidence has nothing to do with demeanour of witnesses or credibility of witnesses or where the evidence involves affidavit evidence, or relates to interpretation or construction of documents that an appellate Court is in as good a position as the trial Court to undertake the evaluation. See EBBA v OGODO (1984) 1 SCNLR 372 and BFI GROUP CORPORATION v BPE (2012) 18 NWLR (PT. 1332) 209.
Having found no compelling reason to warrant any interference in the instant case, I hereby record my agreement with the leading judgment in dismissing this appeal for being destitute of merit. The judgment of the lower Court delivered on 3rd February, 2014 is affirmed accordingly.
Appearances:
Don Akaegbu, Esq., with him, Abosede Nasiru, Esq. For Appellant(s)
B.C. Akunya, Esq., with him, Peter Ibe, Esq. For Respondent(s)