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CAR MARKET & ENERGY LTD & ANOR v. STERLING BANK PLC (2022)

CAR MARKET & ENERGY LTD & ANOR v. STERLING BANK PLC

(2022)LCN/16098(CA) 

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/K/269/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

1. CAR MARKET & ENERGY LIMITED 2. KENNETH ALHASSAN APPELANT(S)

And

STERLING BANK PLC RESPONDENT(S)

 

RATIO:

A PARTY CAN LEAD EVIDENCE ON A POINT NOT PLEADED BUT PLEADED BY THE OTHER PARTY

On issue 2, learned counsel for the Appellants submitted that the law is settled that a party can lead evidence on a point not pleaded but pleaded by the other party. That in the instant case, the Appellants in the course of the cross-examination of the Defendant (now Respondent’s) only witness before the trial led evidence to show that as at the lapse of the obtained overdraft facility, the Respondent bank was still charging the normal banking interest on the same and thereby occasioning a miscarriage of justice on the Appellants. MOJEED ADEKUNLE OWOADE, J.C.A.

PARTIES ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THEIR CONTRACT

The law is trite that contracts bind parties to it; see again AFRICAN INTERNATIONAL BANK LTD vs INTEGRATED DIMENSIONAL SYSTEMS LTD (supra) per GALADIMA, JSC at page 79 paras. D-E where he restated that “The parties are bound by the terms and conditions contained in their contract….” I perused the evidence of the Plaintiffs and they have not set out for this Court in what form and manner the Defendant charged them interest differently from the ones they agreed to in Exhibit 20. All the contentions by the Plaintiffs in my considered opinion do not amount to rebuttal neither have they contradicted the evidence of the Defendant in any material and relevant way. I find the claims of the Plaintiffs that the Defendant made unilateral and unnecessary interest charges unsubstantiated and without cogent facts to support those claims.” MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court delivered by Hon. Justice Esther Y. Lolo on 28/9/2020 in Suit No. KDH/KAD/141/2016.

The Appellants as Joint Plaintiffs instituted this action by writ of summons and statement of claim filed on 15-02-2016. By paragraph 22 of the statement of claim, the Appellants as Plaintiffs claimed as follows against the Respondent Defendant:
“22. Whereof by the reasons of the aforesaid the plaintiffs jointly and severally claims against the defendant as follows:
a) A Declaration that the sum of N1,670,074.36 (ONE MILLION, SIX HUNDRED & SEVENTY THOUSAND, AND SEVENTY FOUR NAIRA, THIRTY SIX KOBO) only debited to the first plaintiff’s account by the defendant and all other such sums of money (inclusive of normal and penal interest charges thereon) debited to the first plaintiff’s account by the defendant with respect to the obtained FOUR MILLION NAIRA overdraft/loan facility in the year 2011 were wrongly debited.
​b) An Order of the Honourable Court compelling the defendant to pay back to the first plaintiff’s account all such sums of money irregularly debited to it (inclusive of the interest earned thereof) by the defendant on the sums irregularly debited to the first plaintiff’s account.
c) A Declaration that the restructuring of the first plaintiff’s account on 28/09/2012 without the consent of the second plaintiff has discharged the second plaintiff of any liability thereof with respect to his guarantee and Tripartite Legal Mortgage.
d) A Declaration that the first plaintiff is not indebted to the defendant in the claimed sum of N7,274,629.62 as the transaction that gave rise to the claimed sum thereof is unlawful hence null and void.
e) A Declaration of the Honourable Court that whatsoever indebtedness (if any) existing after allowance is completely made of the several sums irregularly and unlawfully debited to the first plaintiff’s account with the defendant was not the type of indebtedness contemplated by the parties with respect to the Tripartite Legal Mortgage agreement over the landed property (2 Detachment Bungalow) covered by Certificate of Occupancy No. KD11859.
f) An Order of injunction restraining the defendant either by itself, agents, servants, privies or through anyone whosoever from taking any step of steps (including advertisement) to sell or otherwise dispose of the said property aforesaid.
g) An Order of the Honourable Court compelling the defendant to return to the second plaintiff the title deeds with respect to the Mortgage property.
h) An Order of the Honourable Court that what is outstanding against the first plaintiff as per the detailed statement of account is not the claimed sum of N7,274,269.62 by the defendant.
i) Cost of the prosecution of this suit.
j) The sum of N1,000,000.00 as general damages against the defendant’s failure and/or negligence to guide against the irregular and unlawful debiting of the first plaintiff’s account.”

The Respondent filed a statement of Defence and counter claimed against the Appellants Plaintiffs, thus:
“5. WHEREOF the defendant counterclaim against the plaintiffs jointly and severally as follows:
a. A Declaration that the plaintiffs are owing the defendant the sum of N5,304,555.26 as at 11/3/2016 being balance of loan facility granted the 1st Plaintiff and guaranteed by the 2nd Plaintiff.
b. A Declaration that the defendant is entitled to foreclose the legal mortgage executed by the Plaintiffs over property No. 49 Rock Road, Unguwar Dosa Kaduna and to sell off same to recover the said sum of N5,304,555.26 owed it by Plaintiffs.
c. AN ORDER that the Plaintiffs pay the defendant the said sum of N5,304,555.26 forthwith.
d. AN ORDER that the defendant is at liberty to sell off property No 49 Rock Road Unguwar Dosa Kaduna to recover the sum of N5,304,555.26 which the Plaintiffs are owing the defendant.
e. The sum of N560,000 paid by the defendant to the defendant’s solicitor as legal fees and cost for defendant this suit and counterclaiming against the Plaintiffs.
f. Cost of filing suit.
6. At the hearing of this counterclaim the defendant/ counterclaimant shall rely on all the documents pleaded in the statement of defense.”

Issues were joined on pleadings as the Appellants Plaintiffs filed their Reply to Statement of Defence and Counter claim on 1/7/2016.

​The parties are agreed that the initial overdraft/loan facility granted to the 1st Appellant and guaranteed by a Tripatrite Deed Agreement by the 2nd Appellant sometime in year 2011 was for a sum of Four Million Naira [N4,000,000.00].

The case of the Appellants Plaintiffs was/is that the Respondent Defendant continued to charge interest even when it should have ceased so to do in the agreement between the parties. That a sum of N1,670,074.34 which the Respondent was said to have discovered as undercharge on interest was in fact not waived as the Respondent claimed but added to the charges on interest which bloated up the Respondent’s total claims that is principal sum and interest to now amount to N7,274,629.62.

The Respondent denied any charges of interest or irregular charges outside of the agreement between the parties. That it indeed discovered undercharges in the Appellant’s account to the tune of N1,670,074.34 and has waived same. That despite its waiver of the sum of N1,670,074.34 the outstanding balance of the Appellants which it now claims as at 31/7/2015 is N5,604,555.26.

At the hearing, the Appellants/Plaintiffs called two witnesses and tendered 16 Exhibits while the Respondent Defendant called one witness and tendered 19 Exhibits.

At the end of the trial, the learned trial Judge dismissed the Appellants/Plaintiffs’ claims and granted the Respondent’s counter claim.

In dismissing the Appellants’ claims and particularly on the issue of interests charged on the 1st Appellant’s/Plaintiff’s account by the Respondent Defendant, the learned trial Judge held, first at pages 288–289 of the records that:
“Returning to the issue of interests charged on the 1st Plaintiff’s account by the Defendant; learned Counsel in arguing that the interests ought not to be charged after the expiration of the term of the overdraft/loan except to claim for damages referred to the case of INTEGRATED DIMENSIONAL SYSTEMS LTD & 2 ORS vs AFRICAN INTERNATIONAL BANK LTD (supra); I took time to read the case and I find the reasoning in this authority distinguishable from the instant case. In the authority above, it was held that by the contract between the parties therein the interest chargeable by the Bank was simple interest because it did not specify any other type and it held that parties are bound by the terms and conditions contained in their contract, and cannot act outside these terms and conditions. Neither of the parties to a contract can alter nor read into a written agreement a term which is not embodied in it; (page 79 paras. D-E).” Can we say that in the instant suit the interests charged by the Defendant were done outside of the written agreement? Let us again look at these terms as contained in the contract between the Plaintiffs herein and the Defendant Bank (which I earlier set out above).
This contract is the bedrock of this suit, and specific mention is made therein of what interest would be charged at what point and under what circumstance(s) they would be so charged and to which the Plaintiffs accepted all the terms without exception and the 2nd Plaintiff appended his signature as the Managing Director of the 1st Plaintiff and also signing for the 1st Plaintiff. The law is trite that contracts bind parties to it; see again AFRICAN INTERNATIONAL BANK LTD vs INTEGRATED DIMENSIONAL SYSTEMS LTD (supra) per GALADIMA, JSC @ page 79 paras. D-E where he restated that “The parties are bound by the terms and conditions contained in their contract….” I perused the evidence of the Plaintiffs and they have not set out for this Court in what form and manner the Defendant charged them interest differently from the ones they agreed to in Exhibit 20. All the contentions by the Plaintiffs in my considered opinion do not amount to rebuttal neither have they contradicted the evidence of the Defendant in any material and relevant way. I find the claims of the Plaintiffs that the Defendant made unilateral and unnecessary interest charges unsubstantiated and without cogent facts to support those claims.”

Second, at page 289 of the records the learned trial Judge further held that:
“May I also pause here and comment on the evidence of the PW2, Mr. Elijah Akitoye the Financial and Management Consultant engaged by the Plaintiffs who was contracted as an expert to review the 1st Plaintiff’s account with the Defendant; he made Exhibit 14 which is his report on the job. In his report at page 6 the witness indicated that from his conclusions the Plaintiff owes the Defendant the sum of N4,450,386.36k as at 01/02/16. Asked if the Plaintiff is yet to pay that amount, would it be ok for judgment to be entered in that sum against the Plaintiff, the witness answered in the affirmative. The witness was asked based on his deposition whether the Defendant Bank is obliged to stop charging interest because a customer is sick, he said no. This is the sworn testimony and evidence of the Plaintiffs’ witness and to me, it speaks to the truth of this suit.”

The learned trial Judge concluded on the Appellants/Plaintiffs’ case on pages 289–290 of the Record of Appeal:
“In summary therefore, and from the totality of the evidence in the Plaintiffs’ case and the evidence in relation to the Counter Claim of the Defendant, I have no reservation in holding that the Plaintiffs have failed to prove their claims on the balance of probabilities and thereby have not discharged the onus of proof placed on them by law.
On the other hand, I am satisfied that by concrete evidence, the Defendant has proved its claims in the Counter Claim against the Plaintiffs and by so doing has discharged the onus of proof placed on it.
In consequence of my findings therefore, the Plaintiffs’ case fails and it is accordingly hereby dismissed.”

In contrast, the learned trial Judge upheld the Respondent’s Defendant’s counter claim and made the following orders:
“1. A Declaration is hereby made that the Plaintiffs owe the Defendant the sum of N5,304,555.26k (Five Million, Three Hundred and Four Thousand, Five Hundred and Fifty Five Naira, Twenty Six kobo) only as at 11/03/2016 being balance of loan facility granted the 1st Plaintiff and guaranteed by the 2nd Plaintiff.
2. A Declaration is hereby made that the Defendant is entitled to foreclose the legal mortgage executed by the Plaintiffs over the property No. 49 Rock Road, Ungwar Dosa Kaduna and to sell off same to recover the said sum of N5,304,555.26k (Five Million, Three Hundred and Four Thousand, Five Hundred and Fifty Five Naira, Twenty Six kobo) only owed it by Plaintiffs.
3. An Order that the Defendant is at liberty to sell off the property No. 49 Rock Road, Ungwar Dosa Kaduna to recover the sum of N5,304,555.26k (Five Million, Three Hundred and Four Thousand, Five Hundred and Fifty Five Naira, Twenty Six kobo) only which the Plaintiffs owe the Defendant.
OR IN THE ALTERNATIVE
4. The Plaintiffs shall pay to the Defendant the said sum of N5,304,555.26k (Five Million, Three Hundred and Four Thousand, Five Hundred and Fifty Five Naira, Twenty Six kobo) only forthwith.
5. Whichever option the Plaintiffs decide on, they shall also:
i) Pay to the Defendant the sum of N560,000:00 (Five Hundred and Sixty Thousand Naira) only paid by the Defendant to the Defendant’s solicitor as legal fees and cost for defending this suit and the counter claim against the Plaintiffs.
ii) Cost of filing this suit shown to be N2,000:00 (Two Thousand Naira only).
Signed. 28/09/2020
Judge.”

Dissatisfied with the above judgment, the Appellants filed a Notice of Appeal containing three (3) grounds of appeal dated 30/9/2020. The relevant briefs of Argument for the appeal are:
1. Appellants’ brief of Argument which was filed on 8/12/2020. It is settled by P. Y. Garuba, Esq.
2. Respondent’s brief of Argument which was filed on 12/2/2021 but was deemed filed on 11/3/2021. It is settled by A. A. Manta Esq.
3. Appellants’ Reply brief of Argument which was filed on 26/2/2021. It is settled by P. Y. Garuba Esq.

Learned counsel for the Appellants nominated two (2) issues for determination of the appeal. They are:
“(i) Whether the fourteen calendar months delay by the trial lower Court in delivering judgment in the suit before the trial Court, was not inordinate and thereby occasioning a miscarriage of justice on the Appellants. This issue it is humbly submitted is founded on grounds one and three of the Notice of Appeal dated the 30th day of September, 2020.
(ii) Whether the failure to amend statement of claim on the receipt of the statement of defence is tantamount to accepting as true the evidence of the defence and the resultant judgment thereof. This issue it is humbly submitted is founded on ground two of the Notice of Appeal dated the 30th day of September, 2020.”

Learned counsel for the Respondent adopted the issues nominated by the Appellants.

​On issue 1, learned counsel for the Appellant referred to the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and submitted that it took the trial Court an unending fourteen calendar months to arrive at the findings after the adoption by the parties of their written addresses.
He urged us to resolve the issue in favour of the Appellants.

In response to Appellants issue 1, learned counsel for the Respondent submitted that the Appellants did not demonstrate how the delay in delivering the judgment prejudiced their case.

He submitted that Section 294(5) of the Constitution requires the Appellants to demonstrate how the delivery of the judgment outside the statutory period resulted in a miscarriage of justice particularly when it is considered that the case did not turn on the demeanor of witnesses at all.

The provisions of Section 294(1) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are relevant for the treatment of this issue, the provisions are reproduced as follows:
“294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”

“294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
In the instant case, the Appellants have not shown any evidence, reason and/or argument indicating beyond the non-compliance with the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that the judgment of the Court below has occasioned any miscarriage of justice on the Appellants.
Issue 1 is resolved against the Appellants.

​On issue 2, learned counsel for the Appellants submitted that the law is settled that a party can lead evidence on a point not pleaded but pleaded by the other party. That in the instant case, the Appellants in the course of the cross-examination of the Defendant (now Respondent’s) only witness before the trial led evidence to show that as at the lapse of the obtained overdraft facility, the Respondent bank was still charging the normal banking interest on the same and thereby occasioning a miscarriage of justice on the Appellants.

In response to issue 2, learned counsel for the Respondent explained the circumstances which led to the dictum of the learned trial Judge leading to the alleged misdirection and which formed the basis of Ground Two of the Appellants’ ground of appeal to wit:
“…the Plaintiffs did not file an amended statement of claim after receiving the statement of defence and the evidence thereon nor did they file any document in contradiction of this evidence…”

He submitted that the Appellants had claimed that the Respondent had illegally debited 1st Appellant’s account with the sum of N1,670,074.34 and was in consequence claiming the sum of N7,274,629.62 (paragraphs 12 and 13 at page 17 of records).

The Respondent in its statement of defence and counterclaim denied debiting the 1st Appellant account with the said sum of N1,670,074.34 or claiming the sum of N7,274,629.62 as pleaded by the Appellants.

​The Respondent stated in its statement of defence and counterclaim that, it was while Respondent’s officials were reassessing the 1st Appellant’s account that they discovered that they had indeed undercharged the 1st Appellant the sum of N1,670,074.36, but that the Respondent waived the said undercharged amount and did not include same in its claim against the Appellants. Hence, it was claiming the sum of N5,304,555.26.

That even though the Appellant filed a reply to the statement of defence and a defence to counterclaim, the Appellants did not refute or plead contrary to the Respondent’s pleading. The Appellants also did not lead any contrary evidence that the Respondent’s position was not correct.

Consequently, said counsel, the trial Court after finding that there was no evidence to show that the Respondent had debited the sum of N1,670,074.36 to 1st Appellant’s account and also that there was nowhere the Respondent was claiming the sum of N7,274,629.62 went ahead and remarked that in any case, the Appellants did not amend their statement of claim to join issues with the Respondent on this point.

​Learned counsel for the Respondent concluded on issue 2 that the issue is of no moment as the Appellants did not proffer any evidence to challenge the pleading and evidence of the Respondent on the raised therein.

Indeed, I agree with the learned counsel for the Respondent that Appellant’s issue 2 indeed as well as the ground 2 of the Notice and grounds of Appeal is of no moment. All the trial judge said in that passage was to the effect that there has been nothing in the pleadings and evidence of the Appellant which has contradicted the claim of the Respondent to the sum of N5,604,555.26k, when in fact the Appellants thought they were owing the Respondent more than the Respondent was claiming that is N7,274,629.62k.

In this appeal, the Appellants have not shown any answers to their cross-examination as the learned trial Judge rightly noted which shook, challenged or contradicted the position presented by the Respondent by pleadings and evidence.

The learned trial Judge was thus right to have held on page 279 of the records that:
“Further to this, the DW1 in her written deposition on oath at paragraph 14 (u, v & w) stated in what I consider to be detailed, the circumstances that led to the Defendant conveying to the Plaintiffs the information that they were in addition to other sums owing the Defendant the sum of N1,670,074:36k as undercharges. In that witness deposition at paragraph 14(v) the witness stated that the Defendant subsequently waived that amount and it was not factored into the sum of N5,304,555:26k presently being the amount/sum the Defendant is claiming from the Plaintiffs and not the sum of N7,274,296:62k as has been presented and argued by the Plaintiffs. The Plaintiffs did not file an amended Statement of Claim after receiving the statement of defence and the evidence thereon nor did they file any document in contradiction of this evidence. As it is, this piece of evidence is deemed admitted and the true state of the facts. Indeed, the counter claim of the Defendant shows at paragraph 1 thereof that it is claiming for the sum of N5,304,555.26k in the main from the Plaintiffs. With no other evidence before this Court in proof of the relief 1 of the Plaintiffs, I answer the issue 1 in this regard in the negative.”
Issue 2 is accordingly resolved against the Appellants.

​The Appellants’ nominated two (2) issues for determination of this appeal. The two (2) issues were resolved against the Appellants. This appeal lacks merit and it is accordingly dismissed.
N50,000.00 costs of this appeal is awarded to the Respondent.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment Just delivered by my learned brother M. A. Owoade, PJCA. I agree with the decision reached by my learned brother in the lead judgment that this appeal lacks merit. I also dismiss same, affirm the judgment of the lower Court in suit No. KDH/KAD/141/2016 delivered on 28/9/2020 and abide by the order as to cost.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the leading judgment of my brother, Mojeed A. Owoade, JCA, just delivered. I entirely agree with the reasoning and conclusion that the appeal lacks merit. I adopt the well written judgment as mine and I also dismiss the appeal. I abide by the consequential order(s) in the leading judgment Including the order as to cost.

Appearances:

P. Y. GARUBA, ESQ. For Appellant(s)

A. A. MANTA, ESQ. For Respondent(s)