COLLINS COMMERMEX NIGERIA LIMITED & ANOR v. SKYE BANK PLC
(2019)LCN/12750(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of February, 2019
CA/L/754/16
RATIO
COMMERCIAL LAW: WHERE THE BURDEN OF PROOF IS ON THE DEBTOR
“The law is that the legal and evidential burden of proof is on admitted debtor to show that he has repaid the debt to the creditor. Bisola Nig. Ltd v. Mainstreet Bank Ltd (2013) 4 BFLR, 55; Saleh v. B. O. N. Ltd. (2012) BFLR, 557. ” PER MOHAMMED LAWAL GARBA J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE
“The rationale for employing documentary evidence in resolving this conflict is not farfetched. A document does not readily lie and it cannot unilaterally change its content. Indeed, it is generally used as a hanger to ascertain the truthfulness of oral evidence. Thus, it is generally regarded as a more reliable or preferred form of evidence. On the basis of all that have been said above, I am of the firm viewpoint that the learned trial judge acted appropriately in having recourse to the Court’s record of proceedings in resolving the conflicts in the parties’ affidavit evidence. This is moreso because by virtue of the combined effects of the provisions of Sections 147 (a) and 167 (c) of the Evidence Act, 2011 the Court’s records is presumed in law to be authentic and regular.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. COLLINS COMMERMEX NIGERIA LIMITED
2. CHIDI COLLINS OKAFOR – Appellant(s)
AND
SKYE BANK PLC – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This is an Appeal flowing from a decision delivered by OGUNGBESAN, J., of the Lagos State High Court on 21/1/2016 granting all the Respondent’s claim in the lower Court in the Originating Summons dated 10/2/15.
The claimant claimed as follows:
a. The sum of N22,598,330.78 (Twenty two, Million, Five Hundred and Ninety eight Thousand, Three hundred and Thirty naira, seventy kobo) being the outstanding indebtedness of the Defendants on account No 1770245119 as at 6th of December, 2014 on the overdraft facility of N10,000,000.00 granted to the 1st Defendant vide the credit offer letter dated 31st May ,2011.
b. Interest on the sum of N22,598,330.78 (Twenty two Million, Five Hundred and Ninety eight Thousand, Three Hundred and Thirty naira, Seventy kobo) at the rate of 22% per annum from 6th December, 2011 until judgement in this suit is delivered and thereafter at 10% per annum from the date of judgement until the judgement sum of finally liquidated.
c. An order of this honourable Court to foreclose the Defendants interest in the mortgage property lying and situate at 1, Chidi Okafor Street, Canal Estate, Okota. Isolo. Lagos State. In Certificate of Occupancy dated 16th June, 1997 and registered as No 7 page 7 volume 1997 at the Lagos state land Registry, Alausa, Ikeja, Lagos.
d. An order of this Honourable Court granting the Claimant possession of the mortgage property and the power to sell the interest of the Defendants in the property lying and situate at 1, Chidi Okafor street, Canal Estate, Okota, Isolo, Lagos State by virtue of the third party Deed of Legal Mortgage and deposit of title deeds having foreclosed the defendants interest in the mortgaged property.
e. Cost of this action.
The Defendants/Appellants herein dissatisfied with the decision filed a Notice of Appeal on 14/3/16 at page 112 of the record.
In compliance with the Court of Appeal rules parties exchanged briefs. The Appellants??? brief of argument and reply was filed on 22/8/16 deemed 24/1/18 and 30/1/17 but deemed on 24/1/18 respectively and settled by Francis Azuh, Esq., of Francis Azuh & Co, wherein he formulated two issues wit:
1. Whether the learned trial judge properly evaluated the evidence of the Respondent, especially Exhibit G, in her judgement.
2. Whether the Respondent’s claim in its originating summons can be resolved by affidavit evidence only in view of the conflicting issues raised in the affidavit of the parties.
While the Respondent’s brief was filed on 5/1/17 deemed on 24/1/18, wherein two issues were also formulated thus:
1. Whether the lower Court was right in holding that the Respondent is entitled to reliefs as contained in the originating summons despite the challenge on the authenticity of the Appellants statement of account.
2. Whether the lower Court was right in holding that oral evidence is not necessary where there are sufficient documentary evidence available to resolve any alleged conflict.
ISSUE 1
The Appellants submitted that Exhibit G is the statement of account of the appellant (at page 53-60 of the record) which the trial Court relied heavily on at page 107 of the record and that it ought to show the level of indebtedness of the defendant up till 31/3/14, and what can legally factually establish the actual status of the account in respect of the transaction Counsel then contended that the Respondent cannot be said to have proved its case in line with Section 136(1) of the Evidence Act, 2011 without fulfilling the stringent conditions laid down in Section 84(4) of the Evidence Act, in that the said statement which is computer generated did not go through the verifiable test laid down and therefore ought to be rejected and must therefore be set aside. He relied on ABDULLAHI v ELAYO (1993) 1 NWLR (PT. 268) PG 171 at 182.
He asked that this issue be resolved in his favour.
The Respondent’s counsel submitted that the Mortgagee’s right to foreclose would only arise when the depth owed it by the mortgagor becomes due on the specified date and no payment has been made of the entire sum owed including principal and interest, and its trite that once it becomes due it is for the mortgagor to take steps to foreclose or exercise right of sale. He relied on FEDERAL ADMINISTRATOR GENERAL & ORS v CARDOSO & ORS (1973) 8 NSCC 577 at 580.
Respondent contend that by virtue of Order 51 of High Court of Lagos State (Civil Procedure Rules 2012) a mortgage is at liberty to file an action for foreclosure of the mortgage. He submitted that the initial overdraft facility was for N10million Naira which was drawn down and a collateral vide Exhibit B on 31st of May, 2011, payable within 180 days commencing on 6th June, 2011 and was secured by interest of 2nd Appellant’s property at 1, Chidi Okafor Street, Canal estate, Okota, Isolo, Lagos. The title deeds were deposited and a 3rd party deed of legal mortgage divesting the property in favour of the Respondent (at page 19 – 42) of record.
He submitted that the fact of having drawn down the facilities was not contested or challenged but the Appellants had consistently defaulted on the repayments as contained in the agreement letter leaving N22,598,330.78 till date. That the tenor to the repayment expired on 5th December, 2011 which is due date, and in the entire counter affidavit the appellant did not controvert or challenge the contents of the affidavit to originating summons. He relied on PBNL v FBN (2000) 1 SC 71 at 86-87.
Respondent counsel referred to paragraph 15 and 24 of its affidavit stating the outstanding as N 22,598,330.78 but that the appellant failed to controvert same rather they complained of the refusal of the bank to advance an additional N4m. He referred to Exhibits A-J at pages 7-64 of the record and submitted that adequate proof has been adduced.
He referred to the cases of AFRIBANK (NIG) LIMITED v M. ENT LTD (2008) 11 NWLR (PT 1098) 223 at 242, CHARTERED BRAINS LIMITED & ANOR v INTERCITY BANK PLC (2009) 15 NWLR (PT 1165) PG 459 paras D – F that the grantor is technically a debtor because where the principal debtor fails to pay the debt the guarantor will be called upon to pay the loan so guaranteed. The liability of a guarantor becomes due and matured immediately the debtor/borrower becomes unable to pay its outstanding debt and liability is then said to have crystallized.
He contended that having exhibited the personal guarantee duly executed by the 2nd Appellant and also other evidence proving he is the sole guarantor to the facility granted to the 1st appellant. He referred to AFRIBANK (NIG) PLC v ALADE (2000) 13 NWLR (PT 685) 591.
The Respondent in addition canvassed that clause 1 pages 3-5 of the third party deed of legal mortgage (Exhibit D) succinctly enumerated the mode of payment which was duly accepted and signed by the Appellants, coupled with the various demand letters in Exhibit k, the Appellants still refused to offset the balance debts, that the only option was to enter judgments accordingly. He referred to AJOMALE v YADUAT (NO2) (1991) 5 NWLR (PT 191) 266 at 282-283 paras H – A on the need to swear to an affidavit to controvert certain facts such situation will be regarded as duly established.
In this case, the Appellants deposed to irrelevant facts which begged the question and hence the averments in the affidavit were deemed as true and having been admitted by the Appellants.
On the argument that, Exhibit G should have been accompanied by a certificate of identification by the issuing authority through its authorised personal in compliance with Section 84 (4) of the Evidence Act, Respondent submits in response that this issue is being raised for the first time and having not obtained leave of this court to do this, the issue cannot be raised nor argued herein. He relied on DR F.O.A OKOHMINA v PSYCHIATRIC HOSPITALS MANAGEMENT BOARD (1997) 2 NWLR (PT 485) 75; CHIEF L.H.OIKHEKRHE & 4 ORS v CHIEF JOSEPH M INWANERO & 4 ORS (1997) 7 NWLR (PT 512) 238 Paras D – E; EASTERN BREWERIES PLC AWO OMAMMA & 2 ORS v HENRY NWOKORO (2012) 14 NWLR (PT 1321) 507 paras B – D.
Respondent urged the Court not to accede to the Appellants attempt to avoid liability. He also submitted in the alternative without conceding that even if the statement of claim is inadmissible there was overwhelming evidence of the transaction between parties which are more than enough to warrant the decision given by the Court.
Furthermore, that the Appellants made feeble attempt to doubt the authenticity of the statement of account attached as Exhibit G without giving particulars or furnishing the Court with sufficient materials denying the transaction. See C.C.B (NIG) PLC v OZOBU (1998) 3 NWLR (PT 541) 290 at 310 – 311 paras F – H.
Finally, he posits that despite wild assertions the Court should dismiss the appeal.
ISSUE 2
On issue 2, the learned counsel for the Appellants submitted that the affidavits of parties were in conflicts and so the Court ought to have resolved same by calling evidence. He further contended that the said Exhibit G contained another name PERJOY NIGERIAN LTD of 48 Toyin Street, Ikeja Lagos, as the account owner and only the first and last pages had the name of the 1st Appellant. He also contended the authenticity, accuracy and integrity of the contents of the statement. Appellants in addition stated that the Respondent did not establish any link between the Appellants and Perjoy, and Exhibit G, which he said had errors and could not be a basis of any judgement. He relied on NATIONAL BANK OF NIG LTD ANOR v LADY ALAKIJA & ANOR (1978) 9 – 10 SC 59 at 71, DUWIN PHARM & CHEM CO LTD v BENEKS PHARM & COSMETIC LTD & ORS (2008) 1-2 SC 68 at 115 AND FSB INTER BANK LTD v IMANO NIG, LTD (2000) 7 SC (PT 1). He urged that issue 2 be resolved in his favour.
The Respondent in respect of issue 2 contended that it is not in every case that evidence is called to resolve seemingly conflicts in affidavits evidence he relied on ALHAJI ISIYAKU YAKUBU & 2 ORS v NIG TELECOMMUNICATION LTD & ANOR 2006 9 NWLR (PT 985) 390 A-E; MR TOKUNBOH ONAGORUWA & ANOR v ALHAJA TAIBAT ADENIJI 1993 5 NWLR (PT 293) 347 paras A-C; BASIL O. EZEGBU & ANOR v F.A.T.B LTD (1992) 1 WLR (220) 720 paras A – B.
Respondent counsel contended that he furnished the Court with all material documents A-J while a Appellant only had one document exhibit CCL1 to the counter affidavit which does not in any way challenge the originating summons. He relied on YAKUBU v NITEL LTD (2006) NWLR (PT 985) 367; OKERE v NLEM (1992) 4 NWLR (PT 234) 132 at 148. He posits that the need to call evidence has not arisen. He relied on AJOMALE v YADUAT NO. 2 (1991) 5 NWLR (PT 1991) 266 at 282-283, EASTERN BREWRIES PLC AWO OMAMMA & 2 ORS v HENRY NWOKORO (supra). He argued in addition, that the appellant did not challenge the averments in the affidavit, knowing full well the entire facts of the transaction which he also has not denied till date therefore he posit that the position of the law is what convinced the lower Court to enter judgement in favour of the Respondent.
He urged the Court to dismiss the appeal and uphold the decision of the lower Court.
In reply Appellants submitted that the submissions and authority cited by the respondent are unhelpful and still did not meet the issues raised in the brief that the Respondent found no answer for Section 84(4) of the Evidence Act and did not explain the presence of Perjoy Limited in Exhibit G and emphasised his appellants brief.
The issues for determination of parties are similar though differently couched. I shall adopt the appellants issues while taking into consideration the slant in the Respondent???s issues. I shall also resolve both issues together.
RESOLUTION
The bone of contention is whether Section 84(4) of the Evidence Act, 2011 was complied with during trial? For the purposes of clarity, I shall reproduce the relevant provision:
(1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this section are satisfied in relation to the statement and computer in question.
(2) The conditions referred to in Subsection (1) of this section are-
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
(3) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Subsection (2) (a) of this section was regularly performed by computers, whether-
(a) by a combination of computers operating over that period;
(b) by different computers operating in succession over that period;
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers. All the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section a certificate-
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer. (i) dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate; and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purpose of this section-
(a) information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.???
Interpretation of Section 84(1) and (2) of the Evidence Act as regards condition for the admissibility of electronic documents has been given by the Apex Court in the case of DICKSON v SYLVA (2016) LPELR 41257 (SC), where the Court held thus:
Section 84(1) and (2) Evidence Act provides:- 84 (1) In any proceeding a statement contained in document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question. (2) The conditions referred to in Subsection (1) of this Section are
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.”
The correct interpretation to be given to Section 84 of the Evidence Act where electronically generated document is sought to be demonstrated is that such electronically generated evidence must be certified and must comply with the preconditions laid down in Section 84(2). See: KUBOR v. Dickson (2013) All FWLR (Pt. 676) 392 at 429. per AKA’AHS, J.S.C (Pp. 67-69, paras. E-B) See also OMISORE & ANOR v AREGBESOLA & ORS (2015) LPELR – 24803 (SC); FCDA STAFF MULTIPURPOSE (COOP) SOCIETY & ORS v SAMCHI & ANOR (2018) LPELR – 44380 (CA) 24-25.
Before I venture further, the Respondent raised an objection that this issue under resolution was not raised in the lower Court and that leave was not obtained for it. This must be settled first before the ex-ray of issue 1 for determination.
The Appellants had no answer for this in its reply brief except to state at page 2 clause 2.4 thereof that they have not raised any new issue before the Court as regarding non-compliance of Exhibit G with Section 84(4) of the Evidence Act 2011, having muted that they doubt the authenticity of the Exhibit G.
I must mention at this junction that I took the liberty to peruse the Notice of Appeal at page 112 of the records which I herewith reproduce below:
Ground One – Error in Law.
The learned trial Judge erred in law when she held that there is sufficient documentary evidence attached to resolve any potential conflict between the affidavits including the suspicion…. expressed by the Defendants…. as regards the authenticity of the statement of account.
PARTICULARS
a) The Appellants that is the Defendants, in denying the averments in the Claimant’s affidavit stated in paragraph 13 of their Counter-affidavit that they doubted the authenticity of Exhibit G, that is the Statement of account.
b) The trial Court failed to evaluate Exhibit G because out of the eight pages that make up the Statement of Account, only two pages had the name of the 1st Defendant while the rest had per joy Nig. Limited of No 48 Toyin Street, Ikeja, Lagos State, as the owner of the account.
c) The Claimant was also unable to establish any link between the Appellant and the said Perjoy Nig. Limited with the materials in placed before the Court that would have enable the Court to give judgment in its favour.
Ground Two: Error in Judgment
The learned trial judge erred in law when she said that it was not necessary to call oral evidence to resolve the discrepancy in Exhibit G, that is the Statement of Account.
a) The admissibility of a Statement of Account must be free of any doubt as to its authenticity hence conflicting affidavit evidence bordering on patent and inexplicable errors in it ought to be resolved through oral evidence.
b) The said conflicts in Exhibit G confirm the Appellants position that commencing the action through originating summons was not appropriate in the circumstance.
4. RELIEFS SOUGHT
a) An order of this Honourable Court setting aside the Judgment of the lower Court and in its place dismiss the reliefs sought by the Respondent in its originating summons.
b) And for such further order or other order as the Honourable Court may deem fit to make in the circumstance.”
From the above, this issue of Section 84(4) was not mentioned either as a ground or as a particular. It is trite that issues are derived from the grounds of appeal.
In KANO TEXTILE PRINTING LTD v GLOEDE AND HOFF (NIG) LTD 2005 LPELR – 1660 (SC). The state of the law in respect of a ground of appeal was thus:
A ground of appeal and/or issue for determination which does not derive from the judgment appealed against is incompetent.
In the case of BANKOLE & ORS v PELU (1991) 8 NWLR (PT. 211) 523 at 537, this Court, per UCHE OMO, JCA in considering the validity grounds of appeal and issue for determination commented thus:
Issue 3 comprises an argument and also poses a question not relevant to the grounds of appeal filled challenging findings of facts of the trial court (sic). What should be addressed are findings of fact of the Court of Appeal, even if they are merely confirmatory of the trial Courts findings … Respondent’s issue 7 refers to the judgment of the trial Court. That is wrong. Issues 3, 5 and 7 are therefore also struck out. per EDOZIE, J.S.C ( P. 9, paras. C-F)
Furthermore in MUSACONI LTD v ASPINALL (2013) LPELR – 20745 (SC) it was held on the effect of issues for determination failing to flow from the judgment appealed against thus:
It is now settled practice that appeals are decided upon the issues raised or formulated for determination by the appellate Court. In other words, once issues are distilled from the Grounds of Appeal, the latter become extinguished. Issue No. 2 of the Appellant is not related to the decision of the Court below appealed against but that of the trial High Court, it is therefore incompetent and is to be discountenanced. See; ANAEZE v ANYASO (1993) 5 NWLR (PT 291); (1993) 5 SCNJ 151 (1993) LPELR 480 (SC). per ARIWOOLA, J.S.C ( P. 6, paras. A-B).
In addition, having raised this issue which was neither raised in the lower Court nor ruled upon is incompetent.
In MUSACONI LTD v ASPINALL (2013) LPELR 20745 (SC) whether leave of Court must first be sought and obtained before fresh point can be raised on appeal and the exception(s) thereof the Court held that:
Generally, this Court will not allow or permit a party to raise a fresh issue or question which was not raised in the Court below or grant leave to a party to argue fresh grounds which were not canvassed in the Court below. The exception being a situation where the new or fresh grounds involve substantial points of law, substantive or procedural which need to be allowed in order to prevent an obvious miscarriage of justice and ensure that substantial justice is seen to be manifestly done in the matter. Notwithstanding, the record must show the evidence already adduced by the party who is relying on the new issue being raised. See: Obi Eze Vs. AG Rivers State & 1 Or. (2001) 8 NSCQR 537; (2001) 18 NWLR (Pt.746) 524;Owners M.V Gongola Hope & Anor Smurfit v. SC cases Nigeria Limited & Anor (2007) 15 NWLR (pt 1056) 189; (2007) 12 SCM (Pt 1) 137; (2007) 6 SC (pt 11) 58.
However, the Court will normally allow a fresh issue to be raised and argued on appeal where the said issue is relevant and more importantly, where no further evidence will be necessary. All that an appellant is required to do is to seek and obtain leave of the appellate Court to so raise the said fresh or new issue. Once this is done and the Court is satisfied that in the best interest of justice, leave should be granted, it shall be granted, without any further hesitation.”
per ARIWOOLA, J.S.C (Pp. 19-20, paras. B-A)
In the light of the above, I am unable to entertain this issue, it is incompetent and accordingly struck out.
On the second ground, this deals largely with whether calling of oral evidence is required in view of conflicting affidavit evidence, the first port of call is resolving whether this conflict arise in the affidavit evidence?
The Respondent’s affidavit in support of the originating summons is made up of 26 paragraphs, it raises chronological events leading to the debt of the Appellant while the Appellant filed a counter affidavit at page 8 of the records wherein it neither denied the main thrust of the affidavit but deposed to from paragraph 3 – 12 thereof reasons for the indebtedness to largely be because the respondent bank declined to grant him an additional loan of N4millon naira which in his opinion would have turned around his business. The relevant if any portions;
1. That I am the 2nd defendant in this suit hence I am familiar with the facts deposed herein.
2. That I have the consent of the 1st Defendant to depose to this affidavit.
3. That in reply to paragraphs 6,7, 8, 9 and 10 of the affidavit, it was N14 Million that the 1st Defendant applied for but was advised by its account officer, Victoria Okonkwo, to scale it down to N10 Million in the interim due to paucity of funds and re-apply for N4 Million enhancement when funds are available.
4. That in furtherance of paragraph 3, above, Victoria Okonkwo returned the initial application for N14 Million to the 1st Defendant for the advised adjustment.
5. That the 1st Defendant naively believed the Claimant’s Officer, Victoria Okonkwo, who was also its designated account officer, and amended its application and Business Plan to reflect N10 Million.
6. That when it became apparent that the sum of N10 Million could not get the 1st Defendant’s business off the ground as envisaged, the 1st Defendant returned to the Claimant to ask for the N4 Million enhancement to use Victoria Okonkwo’s term, but was ignored till this day.
7. That the extra N4 Million was required by the 1st Defendant to purchase a vital component of the manufacturing process, NITHROGEN GENERATING MACHINE, that ensures the proper preservation of food products.
8. That the 2nd Defendant explained to Victoria Okonkwo NAFDAC refusal to certify its products unless a complete Nitrogen Generating Machine is procured and installed by the 1st products unless a complete Nitrogen Generating Machine is procured and installed by the 1st Defendant.
9. That Victoria Okonkwo, having realized the gravity of the 1st Defendants predicament, advised the 2nd Defendant to see her boss in the Head Office but the fellow refused to see the 2nd Defendant in spite of the repeated visits.
10. That the Business Plan of the 1st Defendant was clear and unequivocal that N14 Million is required to get the project going.
11. That the 1st Defendant wrote several letters to the Claimant requesting it to advance the N4 Million enhancement that its account officer said will be given when funds become available.
12. That the Claimant is more interested in frustrating the contract and appropriating the 2nd Defendant’s property as stated in Claimant’s Exhibit 1.
13. That the 1st Defendant has every reason to doubt the authenticity of its statement of account, that is Claimant’s Exhibit G.
14. That the Defendant’s counsel vide letter dated 22/12/14 informed the claimant’s counsel about 1st defendant’s request for N4m enhancement from the claimant. Copy of letter dated 22/12/14 is attached herewith and marked Exhibit CCL1.
15 That at no time did the defendant lock out the claimant’s Counsel from its premises when he wanted to deliver a letter to them.
16. That there are irreconcilable conflicts in affidavits of the parties hereto.
17. That affidavit evidence cannot resolve this hence the need for parties to adduce oral evidence.
18. That I deposed to this affidavit bonafide and in accordance with the Oath’s law of Lagos State 2003.”
From the above, it has nothing to do with the main claim which is for foreclosure for the indebtedness of the 1st Defendant/Appellant. It does not deny owing nor state that he had finished paying the debt nor contend that the statement is not correct neither provide reasons for doubting the statement of account in any way. All there is, is an empty counter affidavit. Therefore where is the conflict in the affidavits? Perhaps imaginary.
The learned trial judge captured it correctly at page 108 of the records when she held thus:
It is trite that although conflicting affidavit evidence must be resolved by oral evidence, it is not necessary where documentary evidence is available to resolve the conflict.” See UBA LTD VS TAAN (1993) 4 NWLR (PT 27) PAGE 368, ONAGORUWA VS ADENIJI (1993) 5 NWLR (PT. 293) PG 37 AT 347 PARAS A-C PER UBAEZONY JCA (AS HE THEN WAS) EZEGBU V FATB (1992) 1 NWLR (PT 220 ) PG 699 at 720 paras A-B per NIKI TOBI JCA (as he then was)
On a close look and careful examination of all attached exhibits in this suit, I am of the view that there is sufficient documentary evidence attached to resolve any potential conflict between the affidavits including the suspicion so to say as expressed by the defendants via paragraph 13 of their counter-affidavit as regards the authenticity of the statement of account.
Also in BUHARI v OBASANJO (2003) LPELR 813 (SC) the court held:
I do not think I can fault the above conclusion of Abdullahi, PCA., as it is clearly borne out from the affidavit evidence before the Court. Paragraph 3 of the affidavit of Bodunde Adeyanju on behalf of the 1st and 2nd respondents clearly deposed to contacts made with presidents and leaders of foreign countries and their acceptance to attend the ceremony. The same paragraph deposed to the fact that millions of naira had been spent for the preparation of the ceremony. Strangely, the depositions were not denied by the appellants and they are deemed admitted. See Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773; FBN Plc. v. Tsokwa (2000) 13 NWLR (Pt. 685) 521; Agu v. NICON Insurance Plc. (2000) 11 NWLR (Pt. 677) 187; Commercial Bank Credit Lyonais v. Unibez (Nig.) Ltd. (2000) 9 NWLR (Pt. 673) 491; United Bank of Kuwait Plc. v. Rhodes (2000) 2 NWLR (Pt. 645) 457. per TOBI, J.S.C (Pp. 54-55, paras. C-A)
In FBN PLC v MAY MEDICAL CLINICS & DIAGNOSTICS (2001) LPELR 1282 (SC) the Court on how conflicts on material facts in affidavit evidence are resolved had this to say:
Where the only evidence before a Court are affidavits of the parties – that is to say the applicant’s affidavit and respondent’s counter-affidavit, the Court can rule and arrive at a conclusion in so far as the affidavits do not contain totally divergent depositions of facts. In cases where the affidavits, on material facts to be adjudicated upon are diametrically at variance, the Court before which the proceeding is being conducted must not pick and choose or believe one and reject the other, it is only by resorting to viva voce evidence that the Court will resolve the conflict on the facts. However, where conflicts in the affidavits do not touch the material substance of the matter before the Court, decision may be based on the evidence in those affidavits and there will be no need to resort to oral evidence to resolve such immaterial facts. (L.S.D.P.C. v Adold/Stamm International (Nig.) Ltd. (1994) 7 NWLR (Pt. 358) 544, 550; Okupe v. F.B.I.R. (1974) All NLR (Reprint) 284; Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; Falobi v. Falobi (1976) 9 – 10 SC 1.
It is also right that the Court can consider facts in affidavit by disregarding flimsy facts deposed therein and there will be no necessity to call oral evidence (L.S.D.P.C. v. Adold/Stamm International Nigeria Limited (supra)). The affidavit before the Court touches directly at the issues to be considered in the main appeal. It is always of paramount importance to have all the records in an appeal before the appellate Court. The proceedings including the exhibits and judgment are the materials necessary for the appellate Court to decide whether the trial Court’s judgment was right or wrong. No Court can do justice in any case when all the relevant facts available are not placed before it. per BELGORE, J.S.C ( Pp. 12-13, paras. DE)
In ONWUKA v ONWUKA (2017) LPELR- 42281 (CA) on how conflict on material facts in affidavit evidence are resolved, it was held thus:
It is a general rule and also well established, that where two or more affidavits filed in respect of a particular subject matter are contradictory on material facts that need to be established, to enable a Court make its decision one way or the other in a case, the proper and normal procedure to be employed is calling for oral evidence in resolving the dispute. See Falobi V. Falobi (1976) 9 – 10 S.C. (Reprint) 1; Olu-Ibukun & Anor V. Olu-Ibukun (1974) 1 S.C., 179; N.N.S.C V. Sabana (1988) NWLR (Pt. 74) 23; Okere V. Nlem (1992) NWLR (Pt. 234) 132; Nwosu V. Imo State Environmental Sanitation Authority & Ors. (1990) 4 S.C. 71 and Chairman, N.P.C. V. Chairman, Ikere L.G.A. & Ors. (2001) 13 NWLR (Pt. 731) 590.
The above stated principle however, admits of some exceptions among which is reference to an authentic document which could be used in resolving the conflicts. That is, if there be in existence any authentic documentary evidence which could be used in resolving the said conflicts in the affidavits, the Courts are advised to have recourse to such document(s) and resolve the conflicts, without necessarily calling for oral evidence. See the cases of CALABAR CENTRAL COOPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v BASSEY EBONG EKPO (2001) 17 NWLR (PT. 743) 64 where His Noble Lordship, EKPE, JCA, enunciated as follows:
It has to be emphasized here that, it is not only by calling oral evidence that conflicts in affidavit evidence could be resolved as there may be authentic documentary evidence, which supports one of the affidavits in conflict with another and which is capable of resolving the conflict and tilting the balance in favour of the affidavit which agrees with it. Documentary evidence is a yardstick with which to assess oral evidence. Where, therefore, there are documents which will enable the Court to resolve the affidavits which are materially in conflict, there is no need for oral evidence. See FASHANU v ADEKOYA (1974) 1 ALL NLR (Pt. 1) 35 at page 118; MONICA EGO KANNO v MRS. BANIGO IBIANI KANNO & ORS. (1986) 5 NWLR (Pt. 40) 138 at 139; LIJADU v LIJADU (1991) 1 NWLR (Pt. 169) 627 at 649.
See also the case of HOPE UZODINMA v SENATOR OSITA B. IZUNASO & ORS (2011) 17 NWLR (PT. 1275) 30 wherein His Lordship, BADA, JCA, held as follows:
“…the law is firmly established that where there is enough documentary evidence outside the conflicting evidence, the Court can make use of the documentary evidence in resolving the issue before it. And there will be no need to resort to any oral evidence in such circumstances. See the case of: LIJADU v LIJADU (1991) 1 NWLR (PT 169) page 627 at 649. See also AKUJOBI & ANOR v EKEMAN & ORS (1998) LPELR 6456.
The rationale for employing documentary evidence in resolving this conflict is not farfetched. A document does not readily lie and it cannot unilaterally change its content. Indeed, it is generally used as a hanger to ascertain the truthfulness of oral evidence. Thus, it is generally regarded as a more reliable or preferred form of evidence. On the basis of all that have been said above, I am of the firm viewpoint that the learned trial judge acted appropriately in having recourse to the Court’s record of proceedings in resolving the conflicts in the parties’ affidavit evidence. This is moreso because by virtue of the combined effects of the provisions of Sections 147 (a) and 167 (c) of the Evidence Act, 2011 the Court’s records is presumed in law to be authentic and regular.
Any party who wishes to impeach the contents of the Court’s record of proceedings is required by law to bring a motion on notice to that effect, accompanying the said motion with an affidavit with a certified true copy of the record annexed thereto, cite the portion of the record he wishes to impeach or challenge and state in his/her affidavit the contrary facts which were (in his/her opinion) wrongly substituted with the facts contained in the Court’s record. See the case of OKORO & ORS v OKORO (2009) LPELR – 8413, pg. 30, wherein His Noble Lordship, GALADIMA, JCA (as he then was) at page 80, in his contribution to the lead judgment, expatiated as follows: A trial Court is at liberty to use evidence in its file or record to arrive at justice, especially when the new evidence is inconsistent with previous evidence in the Court’s file by the same party given at the interlocutory stage without the party having the presence of mind to explain the contradictions or inconsistencies. The interest of the Court at all times must be to do justice and that should not vary at any stage of proceeding from interlocutory to substantive stage. See EJUETAMI V. OLAIYA (2002) FWLR (Pt. 88) 955 at 981 D – G; SODIMU V. NPA (1975) ANLR 151 at 156; & NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (Pt. 969) 69. per OREDOLA, J.C.A (Pp. 11-16, paras. F-B)
In LSDPC v ADOLD STAMM INT’L (NIG) & ANOR (2005) LPELR 1746 (SC) the apex Court on how to decide whether the contents of two documents are conflicting; when oral evidence will not be needed to resolve such conflicts held thus:
“In deciding whether or not the contents of the two documents are conflicting, one must look at the issue in controversy in the particular case before the Court. This is because where, for example, the conflicts in affidavits are not material to the case before the Court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the Court, the need to call oral evidence to resolve the conflicts would not arise. See Falobi v. Falobi (1976) 9-10 SC 1; Okupe v. F.B.I.R. (1974) All NLR 314 (Reprint); Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; and L.S.D.P.C. v. Adold Stamm Int. Ltd. (1994 ) 7 NWLR (Pt. 358) 545.”
Per AKINTAN, J.S.C ( P. 16, paras. B – E).
Therefore in the light of the LSDPC’S CASE the depositions in the counter affidavit does not in any way meet the claim neither does it conflict with the claimant/respondent’s supporting affidavit.
I have carefully examined and re-examined the affidavits filed by the parties and I do not agree with the learned counsel for the appellant that there are materially contradictory facts, contained in the pieces of affidavit evidence before the lower Court that would have necessitated the calling of oral evidence to which the lower Court failed to call. It is trite law that where a Court is faced with conflicting affidavits in respect of some set of facts dwelling on a certain subject matter, ordinarily the Court is not expected to prefer one party’s affidavit to the other. Thus, the Court is expected to call oral evidence to resolve the conflict. However, it is also well established position of our law, that where the perceived conflicts could be conveniently resolved by having recourse to the documents already attached to the affidavit as Exhibit(s), then the Court can safely dispense with the need to call for oral evidence. See the cases of ADKINS SCIENTIFIC LTD v ALADE TOYINBO & ANOR (1995) LPELR – 187; UNITED BANK FOR AFRICA PLC v OKON EFFIONG (2011) LPELR – 8934; DANA IMPEX LTD v AWUKAM (2006) 3 NWLR (PT 968) 544 and ONAGORUWA v ADENIJI (1993) 5 NWLR (PT 293) 317.
In the light of the above, the Appellant did not put forward any denial in his counter affidavit, he admitted collecting 10 Million naira, and executed an agreement accepting all the terms, which included paying within 180 days of draw down loan. Nowhere in these documents did the mention of 4million naira arise.
Therefore there was an admission, the excuses in the counter affidavit did not avail the Appellants.
I agree with the Respondent that there is sufficient evidence for the Court from the Exhibit G to resolve any conflict in the affidavit. This Court cannot therefore tamper with the evaluation and conclusion of the lower Court.
I therefore resolve the two issues in favour of the Respondent.
This appeal lacks merit and it is accordingly dismissed. The judgment of the Lagos State High Court delivered on 21/1/2016 per OGUNGBESAN, J., is hereby affirmed.
Cost of N200, 000 is awarded against the Appellants in favour of the Respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA in this appeal and agree with the views expressed on the two (2) issues submitted for decision by the Court. As demonstrated therein, the substance of the claim by the Respondent was not challenged at all by the Affidavit of the Appellants, who tacitly, admitted owing the loan of Ten Million Naira (N10,000,000.00) granted to the 1st Appellant by the Respondent without even an attempt to pay back as agreed to by the parties. Since the Appellants did not deny receiving and fully utilizing the loan granted by the Respondent and have not shown any evidence of repayment, the claim by the Respondent, from the Affidavit evidence before the High Court, was not disputed or even denied. The law is that the legal and evidential burden of proof is on admitted debtor to show that he has repaid the debt to the creditor. Bisola Nig. Ltd v. Mainstreet Bank Ltd (2013) 4 BFLR, 55; Saleh v. B. O. N. Ltd. (2012) BFLR, 557.
In the absence of facts disputing the loan in the Appellants’ Affidavit, there could not have been and there was no conflict between the material and substantive facts of the Respondent’s claim and the Appellants’ Affidavit to call for or warrant resort to oral evidence by the High Court.
I also agree that the appeal is completely devoid of merit and deserves to be dismissed in its entirety.
The appeal is dismissed by me too, in terms of the lead judgement.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the leading judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA which has just been delivered in which this appeal was dismissed.
I agree with the analysis and resolution of the two (2) issues raised by the Appellant, and I am of the view, that the appeal was intended to frustrate the Respondent in being able to recover the Appellant’s indebtedness.
I really do not have anything to add than to agree with the decision reached in the leading judgment that this appeal lacks merit and should be dismissed with costs.
Appearances:
Appellants not represented. For Appellant(s)
M. Olaniya with him, O. Oyebowale For Respondent(s)
