COPYTECH DESIGN AND PRINT (NIG) LTD v. FIRST BANK (2021)

COPYTECH DESIGN AND PRINT (NIG) LTD v. FIRST BANK

(2021)LCN/15136(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/L/127/2019

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

COPYTECH DESIGN AND PRINT (NIG) LIMITED APPELANT(S)

And

FIRST BANK PLC RESPONDENT(S)

RATIO

WHETHER THE COURT IS BOUND TO RELY ON AS TRUE, TESTIMONY AND EVIDENCE THAT IS UNCONTRADICTED

Now, while a Court will ordinarily rely on evidence that is not challenged, that situation will only apply if such evidence is not vacuous but probable, in tune with other admitted facts of the case and believable. That is the point that was made by this Court (Salami, J.C.A, as he then was) in Arewa Textiles Plc v. Finetex Ltd (2003) 7 NWLR (PT 819) 322 @ 341 para D-G when it was said that: “The Court would only be bound to accept unchallenged, uncontroverted and unrebutted evidence of the plaintiff if it were cogent and credible.” That point was made even more forcefully by the learned authors of Sakar’s Law of Evidence, Vol. 1, 16th Edition @ p. 131 where it was said that: “The real tests are how consistent the story is with itself, how it stands the test of cross-examination and how it fits in with the rest of the evidence and the circumstances of the case (Bhojraj v. Sitaram 40 CWN257: A 1936 PC 60). Cross–examination is not the only method of discrediting a witness. Courts are not bound to accept testimony which on the face of it is unacceptable merely because there was no cross-examination (Juwarsingh v. S.A. 1981 SC 373: 1980 CriLJ 1418). The veracity of a witness is judged not solely from his individual statements but in conjunction with all the facts brought out in the course of the testimony. The apex Court (Pats-Acholonu J.S.C. in lead judgment) drove the point home even further in Neka B.B.B. Mfg. Co. Ltd v. A.C.B. Ltd(2004) 2 NWLR (PT 858) 521 at 550; (2004) ALL FWLR (PT 198) 1175 @ 1197 Paras E-H when it said: “Finally, let me discuss the point made in the appellant’s brief that the evidence of pw4, which I have described as being utterly hollow, was not challenged. An opposing party should not be expected to challenge evidence that is hollow, empty or bereft of any substance as that would to my mind amount to chasing a shadow. I am familiar with the case of Odulaja v. Haddad (1973) 1 ALL NLR 191 to the effect that an evidence not challenged by the party that had the opportunity to do so should ordinarily be believed and accorded credibility. I believe that such holding rests on the premise that such evidence is capable of being believed if not challenged. In other words, when the evidence is weak in content as not to assist the Court or is manifestly unreasonable or is devoid of any substance as not to help to resolve the matter in issue it will be safe to ignore it as it does not attain the standard of credibility. Although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the Court but must be accepted as true, it is also true to say that the Court is not in all circumstances bound to accept as true testimony and evidence that is uncontradicted where it is willfully or corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case.” PER BOLOUKUROMO MOSES UGO, J.C.A.

WHETHER AN EXPERT IS A ‘PERSON INTERESTED IN THE PROCEEDINGS’ WITHIN THE MEANING OF SECTION 83(3) OF THE EVIDENCE ACT 2011 AND SO A DOCUMENT OR STATEMENT MADE BY HIM WHILE PROCEEDINGS ARE PENDING OR ANTICIPATED IS CAUGHT BY THAT PROVISION

I am afraid the lower Court got it wrong here, at least on the dry bones of the law, for the law is settled that an expert witness is not a person interested in the proceedings within the meaning of Section 83(3) of the Evidence Act 2011 and so a document or statement made by him while proceedings are pending or anticipated cannot be caught by that provision, reason being that an expert’s statements made in such circumstances are actually mere opinions and not hard facts: see Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (PT 668) 243, 279 -280, and Abe & Anor v. Damawa & Anor (2011) LPELR-5007 p.47-48. At any rate, if experts are persons interested in a proceeding as defined by 83(3) of the Evidence Act 2011 and their Reports/Findings caught by it and inadmissible, it will simply mean that no expert will be able to testify in Court and the Court will be denied of the light their expert evidence normally throws on issues before it, after all expert evidence is only resorted to when a case is anticipated or pending in Court. PER BOLOUKUROMO MOSES UGO, J.C.A.

ON WHAT BASIS ARE COSTS AWARDED

In Rewane v. Okotie-Eboh (1960) NSCC 135 the apex Court while recognizing that ‘costs are not given as a bonus to the party who receives,’ went on to add (citing Baron Bramwell in Harold v. Smith 157 E.R. 1229 @ 1231 approvingly) that: “Costs will, therefore, be awarded on the ordinary principles of genuine and reasonable out-of-pocket expenses and normal Counsel’s cost usually awarded for a leader and one or two juniors.” PER BOLOUKUROMO MOSES UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): The dispute in this case is about whether appellant, a current account holder with Respondent Bank who by his own admission was granted and enjoyed overdraft facility of ₦10,000,000 (Ten Million Naira) by Respondent, was indebted to Respondent on that facility to the tune of ₦10,369,000.00 (Ten Million Three Hundred and Sixty-Nine Thousand Naira) as found by the trial judge, or whether it was Respondent who was indebted to appellant by way of spurious charges running close to ₦100,000,000.00 (One Hundred Million Naira) imposed by Respondent on that account and so liable to make refund to appellant as it claims.

Appellant fired the first salvo in that dispute by taking out writ of summons in the High Court of Lagos State in Suit No: LD/31/2011 now on appeal here. It claimed from Respondent:
i. A declaration that the claimant is not owing the defendant any sum whatsoever but it is the defendant that is owing the claimant the sum of ₦2,894,540.49 being excess charges on the claimant’s account maintained with it and interest refund at the prevailing CBN Minimum Rediscount

Rate and Monetary Policy rate.
ii. A declaration that any interest rate, term of charges contained in the various letters of offer between the claimant and the defendant which is above the prevailing Central Bank of Nigeria Minimum Rediscount Rate in line with Section 3.2.4g of the Monetary, Credit, Foreign Trade and Exchange Policy Circular No. 38 of January 5, 2010 is a nullity ab initio and a further declaration that the arbitrary and unilateral increase of the interest rate by the defendant is illegal, null and void ab inito.
iii. An order setting aside such interest rate and charges which are either not contained in the letters of offer, or unilaterally and arbitrarily increased by the defendant or are above the prevailing interest rates as approved by the CBN as at the period of the transaction.
iv. An order of Court against the defendant (Respondent) to refund to the claimant vide Bank Draft or Certified cheque the sum of ₦92, 423, 260.94 (Ninety Two Million Four Hundred and Twenty Three Thousand, Two Hundred and Sixty Naira and Ninety Four Kobo) being excess, illegal and spurious bank charges identified in the account No:

45520300004718 maintained by the claimant with the defendant and interest thereon at the prevailing CBN Minimum Rediscount Rate (MRR) in line and in sync with Section 3.2.4g of the Monetary, Credit Foreign Trade and Exchange Policy Circular No. 38 of January 5, 2010, total gleaned deposit in the account, 100% penalty on Excess Charges and 100% penalty on Total gleaned deposit in the account from 03/08/2007 to 20/10/2010. The breakdown is as follows: –
a. Excess and Spurious Bank Charges and Interest at the prevailing CBN, MMR/MPR ₦3, 268, 082.85
b. Total gleaned consequential deposit in The Account ₦47,435,909.68
c. 100% penalty on excess charges ₦2,875,514.73
d. 100% penalty on Total Gleaned Deposit ₦38,843,753.68
Total in all ₦92,423,260.94
v. An order of perpetual injunction restraining the defendant whether by themselves, or through any person or group of persons claiming through them from selling the machines in the office complex of the claimant at 13, Kike Adeyemi Street, Off Ailegun Road, Ile-Epo, Bus Stop, Iyana Ejigbo, Ejigbo, Lagos used as collateral for the subject facility.

An Order of the Honourable Court compelling the defendant to do a return to the Central Bank of Nigeria in order to correct the negative position of the accounts of the claimant.
vii. An Order of the Court compelling the defendant to write a letter of apology to the claimant for mismanaging its accounts in line with Section 3.2.4g of the Monetary, Credit, Foreign Trade and Exchange Policy Circular No. 37 of January 05, 2010.
viii. General damages in the sum of ₦500,000 (Five Hundred Thousand naira) being claim for loss suffered by the claimant regarding its working capital, emotional trauma, time wasted in pursuance of the rectification of the overcharged interest rates etc., which all arose as a result of the mismanagement of the claimant’s account by the defendant.
ix. Other applicable reliefs as may be just and equitable in the circumstances.

While admitting in its amended statement of claim that it secured from Respondent on 03/08/2007 an overdraft facility of ₦10,000,000.00 (Ten Million Naira) to augment its working capital and the said facility was secured among others by debenture over machines on its office complex, appellant claimed that it:

(1) “…..never defaulted in performing its obligations as at when due as regards the repayment of the subject facility and indeed has fully repaid the overdraft facility in excess.” (Para 5).
(2) “….is not owing the defendant any sum rather it is the Defendant [Respondent] that is owing the claimant the sum of ₦3,288,030.81 (Three Million, Two Hundred and Eighty-Eight Thousand, Thirty Naira and Eighty-One Kobo) (including interest refund at the prevailing Central Bank of Nigeria Policy Rate) which sum represents spurious and illegal charges Bank charges.’ (Para 6).

After stating that it was in the cause of audit of its account by a Forensic Consultant (C.W.1) engaged by it that the ‘spurious’ bank charges of Respondent on its account were discovered and further giving notice in its statement of claim that it would rely on two Investigative Reports dated 19/11/2010 and 10/4/2012 of its said Forensic expert in support of these allegations, appellant again reconfirmed its denial of indebtedness to Respondent and Respondent’s indebtedness to in the following manner in paragraph 15

of its statement of claim:
15. Further to the above, the claimant avers that it is not owing the defendant any sum as of date but the payments made by the Claimant into the subject account has sufficiently covered over and above the overdraft facility and it is the Defendant that is indebted to the Claimant in the form of excess, extraneous and spurious charges including interest refund as stated above in the preceding paragraph 12. (Para. 15)

Interestingly, appellant, earlier on in its response in Exhibit D6 to respondent’s demand for that same debt, where respondent even quoted the exact sum of ₦10, 369, 000, admitted that it was truly indebted to respondent.

Respondent in its statement of defence to the suit not only denied appellant’s charge of imposing spurious charges on its account or owing appellant ₦3,288,030. 81 (Three Million Two Hundred and Eighty Eight Thousand, Thirty Naira and Eight One Kobo) or any sum, it ended up counterclaiming against appellant for its said debt thus:
(a) The sum of ₦10, 369, 000 (Ten Million, Three Hundred and Sixty – Nine Thousand Naira Only) being the indebtedness of the claimant

as at April 8, 2010 plus interest at the rate of 21% per annum from 9th April, 2010 up to the date of judgment and 10% per annum after judgment is delivered up to the date the sum is liquidated by the claimant.
(b) An order granting leave of the defendant/counter claimant to sell the assets and property situate and known as No. 13, Kike Adeyemi Street, Off Ailegun Road, lle-Epo Bus/Stop, Iyana-Ejigbo, Lagos, used for collateral for the subject facility, to offset the claimant’s debit.
(c) ₦1, 500, 000.00 (One Million, Five Hundred Thousand Naira Only) cost of defending this suit.

At the trial, each party called one witness. Appellant, it is noteworthy, did not call any of its staff or directors to deny its indebtedness to Respondent or explain why it admitted indebtedness to Respondent in Exhibit D6. Its only witness was its Forensic Expert, one Chief Ori Adeyemo, who simply testified to the spurious bank charges appellant claimed were revealed by the forensic examination conducted by this witness. In the course of the evidence of this witness of appellant, the trial judge in a considered ruling of 11/2/2015 rejected in evidence one of

the said two Reports along with two other documents made by this witness. She (Mrs. Williams, J.) judge reasoned that the said documents were made during the pendency of the proceedings and their maker Chief Adeyemo was an interested person in the proceedings so they were inadmissible by virtue of Section 90(3) of the Evidence Act. The correctness of that decision is also contested by appellant in this appeal.

In her final judgment of 07/5/2018, the trial judge had no difficulty finding against appellant and dismissing its claim and upholding Respondent’s counterclaim. Her Lordship had the following to say on both claim and counterclaim:
“The claimant wrote Exhibit D6 that has been quoted above in response to that letter. It admitted by the letter that it owed the defendant and it did not dispute the figure stated in Exhibit D7. What it disputed was the insinuation it perceived from the letter, that no funds were deposited in the account since July 2009 and that steps were not taken in respect of the loan. It is the law that where a bank makes demand for the settlement of a debt by a letter and the amount of the debt is contained in the

letter and the debtor does not query the figure written in the letter, as the overall debt due but rather writes a letter explaining the reasons for non-payment of the debt, the debtor will be deemed to have impliedly admitted the stated figure as the amount of debt due. See Bagobiri v. Unity Bank Plc (2016) LPELR-41161(CA).
“The demand for the sum of N10, 369, 308.28 was reiterated in Exhibit D8, written by the defendant’s legal department. The letter was acknowledged on 27/04/10. The claimant’s denial of receiving the letter is therefore disproved. The claimant chose not to respond to the second letter, which also amounts to an admission. It is trite law that where a party fails to respond to a business letter which by its nature requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter. See Bagobiri v. Unity Bank Plc (Supra). As submitted by learned counsel for the claimant in her final written address, what is admitted needs no further proof.
“The claimant’s belated denial of its debt in this suit is based on the unproved claims it has made in this suit. Those claims have been

found to lack merit. The debt of the claimant as alleged by the defendant is not based on any wrongful combination as alleged in the defence to counter claim. The loan contracts from which the claimant derived benefit have not been proved to be “ex facie and performance illegal” as contended in the claimant’s pleadings.
“What is clear is that the claimant has no defence to the counterclaim. The claimant cannot approbate and reprobate as it purports to do by asserting in one breath in its pleadings that it has repaid the loan it took and then alleging through CW1 that it did not collect money from the defendant. Parties are not permitted to approbate and reprobate in the conduct of their cases. See Abeke v. Odunsi (2013) LPELR-20640(SC) and Olowe v. Aluko (2014) LPELR-24235(CA).
“As submitted by learned defence counsel, it is not enough for the claimant to merely deny its indebtedness to the defendant without stating the amount it paid the defendant to offset the money it borrowed with interest thereon. This position is backed by the provision of Order 17 Rule 3(1) of the rules of Court that in an action for debt or liquidated demand in

money, a mere denial of the debt shall not be sufficient defence. The claimant has merely asserted that it has repaid the loan without stating how. In Exhibit D6, the claimant asserted that the sum of N17,000,000.00 had been paid into its account but it also acknowledged that it was still indebted to the defendant. The claimant has not shown that it made any payments into its account after receiving Exhibits D7 and D8, the defendant’s letters of demand.
“In the premise, I find and hold that the defendant has proved its claim that the claimant is indebted to it.

Vexed by that decision, appellant lodged the instant appeal to this Court first on a single ground but later amended its notice of appeal to add five more grounds from which it framed a question each for determination by this Court as follows:
1. Whether the lower Court erred in law and occasioned grave miscarriage of justice when it held that Exhibit D6 (i.e. appellant’s letter dated 12/04/2010) amounts to admission in law.
2. Whether the lower Court erred in law when it entered judgment in favour of the Respondent in the sum of ₦10,369,000.00 without the

appellant’s statement of account before the Court or any credible and cogent evidence showing how the Respondent arrived at the appellant’s indebtedness. In other words, whether the lower Court was right when it held that the appellant is indebted to the respondent in the sum of ₦10,369,000.00 without cogent and compelling evidence before the Court to support the conclusion by the lower Court.
3. Whether having regard to the evidence adduced in this case the learned trial judge was right in refusing to acknowledge the fact that appellant’s Consultant’s ‘a fortiori Report’ as well as the subsequent 100% penalty letters for 14 days non refund breach, which occasioned the cause of action in this suit, were never challenged by the Respondent.
4. Whether the learned trial judge erred in law when she dismissed appellant’s claim in its entirety and entered judgment in favour of respondent’s counterclaims in the sum of ₦10,369,000.00 without any cogent and compelling evidence before the Court to support its conclusion.
5. Whether the lower Court erred in law when it rejected the Consultant’s

Report (CW1’s Report) dated 10/04/2012 in evidence on the ground that it was prepared during the pendency of this suit at the lower Court.
6. Whether the lower Court erred in law and occasioned grave miscarriage of justice when it awarded the cost of ₦750,000.00 against appellant in favour of Respondent.

On its part, Respondent formulated five issues from appellant’s six grounds of appeal as follows:
1. Whether the claimant [appellant] was able to prove its claim at the trial Court which the trial Court dismissed.
2. Whether the lower Court’s refusal to admit and acknowledge appellant’s Consultant Report led to miscarriage of justice against appellant.
3. Whether the trial Court was right to have rejected the appellant’s Consultant Report dated 10/04/2012 as Exhibit in this case based on the provisions of Section 83(3) of the Evidence Act 2011.
4. Whether the respondent was able to establish its counterclaim against appellant at the trial Court in view of Exhibit D6 which is an admission of the appellant’s indebtedness to the respondent.
5. Whether the lower Court was wrong to have

awarded cost of ₦750,000.00 in favour of Respondent.

Respondent’s issues 2 and 3 are in my opinion two sides of the same coin and could have been conveniently fused together to read: Whether the trial Court was right to have rejected in evidence appellant’s Consultant Report dated 10/04/2012 and, if not, whether that action of the lower Court led to or occasioned any miscarriage of justice. Appellant hardly fared better too, for its six issues also overlap in several aspects. It is high time litigants heed the advice of our Courts to avoid duplicating issues.

Having pointed that out, I now revert to the contentions of appellant on its six issues to see if he made out any case for reversal of the judgment of the trial Court.

Issue 1: Appellant’s argument in this issue centered on the trial judge’s holding that it admitted its indebtedness to Respondent in the sum of ₦10,369,000.00 claimed by respondent so it (appellant) failed to make out its denial of that debt and same was proved. Appellant complains that the trial judge misconstrued what constitutes admission. It argues that admission in law must be unqualified

and unequivocal, but that was not the case with its response in Exhibit D6. It says the trial Judge failed to consider a critical issue it raised in Exhibit D6 which had to do with its alleged deposit of ₦17,000,000 in its account. That issue, according to it, qualified its alleged admission. It also complained that the trial judge omitted to address her mind to the fact that the facility in issue was an overdraft, and that it denied depositing any monies into the said account, all of which further qualified its alleged admission. Additionally, it submitted, the issue of its said admission of the debt was raised by the trial judge on her own without affording parties the opportunity of addressing it on it; that parties did not even join issues on it so the trial judge further erred on that ground too, so we should set aside her judgment and allow this appeal.

Respondent supported the trial judge’s reasoning and urged us to reject this argument of qualified and equivocal admission of appellant. It submitted that appellant’s admission of its indebtedness of the debt in Exhibit D6 was unequivocal and conclusive. It cited

Kamalu & Ors v. Umunna & Ors (1997) LPELR-1657 (SC) to argue that admission is conclusive proof of the entire matter against the party making it; that what is admitted needs no further proof and in fact relieves the opposing party of proving such facts and bars the party who made the admission from disputing it. Admission, it submitted, is the best proof of disputed facts. In support of that, it cited this Court’s decision in IPCO (W.A.) Holding Limited & Anor. v SEMBCORP Eng. PTEL Ltd (2011) LPELR-4332 (C.A).

Honestly, I do not understand the point appellant is trying to make with its contention that its response in Exhibit D6 earlier reproduced did not amount to admission or that debt.

Respondent’s Demand Notice (Exhibit D7) to which Appellant responded in the aforesaid manner was very explicit. It informed Appellant thus:
April 8, 2010
The Managing Director,
Copytech Design & Print Nigeria Limited,
13, Kike Adeyemi Street, Off Ailegun Road,
Ilepo Bus Stop, lyana Ejigbo,
Ejigbo Isolo.
Lagos.
Dear Sir,
DEMAND NOTICE IN RESPECT OF SHORT TERM OVERDRAFT OF ₦10M

OVERDRAFT LIMIT: N10, 000,000.00
EXPIRY DATE: 31st DECEMBER, 2009
CURRENT ACCOUNT BALANCE AS AT 31ST MARCH, 2010 – ₦10,369,000DR.
We write to advise that your current account has developed solid hardcore due to your inability to meet up with the expected fluctuating mode of operation and repayment as attached to the overdraft facilities granted to your company in May, 2008. We are constraint to renew the facility further and hereby request you to please pay down the balances outstanding on the account and other liabilities falling due in the nearest future. You will agree with us that this facility ought to have been liquidated since 30th May, 2009 as contained in the terms of offer executed by your good selves.
Please note that we may be forced to take drastic steps towards recovering this facility if we do not hear from you within the next 7 days from the date of this letter.
Please acknowledge the receipt while we look forward to receiving your repayment soonest
Yours faithfully
For FIRST BANK OF NIGERIA PLC
Authorised Signatory

Appellant in its response (Exhibit D6) to this Demand Notice of Respondent had this to

say:
Branch Manager
First Bank of Nigeria Plc
205, Idimu Road
Yem-Kem Shopping Plaza,
Agege, Lagos
12th April, 2010
‘Dear Sir
Re: Demand notice in respect of short term overdraft facility
We refer you to your letter of April 8th 2010.
We are a Customer to your bank as well as a registered printing contractor.
We are so far pleased with the bank’s conduct regarding its assistance offered to us in running the facility since inception.
The Nigerian economy is recessed and this is having a more than proportionate effect on the printing industry and small business in general.
Our company is certainly not an exception. However, we are optimistic about the future outlook considering the potential contracts in hand.
Our records show that an application for the renewal of this facility was made by us one month before its renewal date contrary to your claim. I am also aware that this facility is in place until February 2010. I can also make a further point that a minimum of ₦17m was deposited into the account between September 2009 and March 2010, contrary to your claim that

no funds were deposited since July 2009. This is a modest amount but is all we could manage to do.
We accept that the account has not been funded sufficiently and in accordance with the terms agreed but this was mainly due to the downward trend of business experienced in the recent ten months.
As a way forward, I am appealing to your bank to stay action advised in your letter dated above. I am also applying through this letter for the conversion of this facility into a termed loan of 48 months with a moratorium period of three months. Converting this facility into a termed loan will ease the burden of payment on my company and will be beneficial to the bank as a regular repayment will be received until the loan is liquidated. Also, the punitive charges and interest payable will be averted.
In view of the above, I will appreciate a meeting with you in the immediate future, to discuss the above matter or indeed any matter relating to my business.
I thank you in anticipation.
Yours faithfully
For: Copytech Design & Print Nigeria Ltd

The word admission simply means an acknowledgment that a fact or statement is

true. If what appellant said above in Exhibit D6 is not acknowledgment of the fact of its indebtedness to Respondent in the sum of ₦10,369,000 claimed by Respondent in Exhibit D7 as found by the trial judge then I do not know what else constitutes admission. In fact the trial judge could not have been more correct when she held incisively as earlier reproduced that “the claimant cannot approbate and reprobate as it purports to do by asserting in one breath in its pleadings that it has repaid the loan it took and then alleging through CW1 that it did not collect money from the defendant. Parties are not permitted to approbate and reprobate in the conduct of their cases.”

I also reject appellant’s other complaint that the issue of its admission of its indebtedness to Respondent did not arise in the case and was rather raised suo motu by the trial judge. That issue was raised pointedly in paragraph 16 of Respondent’s amended statement of defence and responded to by appellant in paragraph 15 of its Reply and so needed resolution by the trial judge who did that admirably as shown earlier. On that note, I hereby resolve issue 1 against appellant.

Issue 2: The complaint of appellant here centers on Respondent’s omission to tender its statement of account. Appellant argued that its statement of account with Respondent showing its indebtedness was central to proof of its indebtedness to Respondent in the sum of ₦10,369,000.00 claimed by Respondent, even more so as Respondent also pleaded it. Without the statement of account to prove that it withdrew the said sum from Respondent, it argued, the ₦10,369,000.00 claimed by Respondent was not proved and ought to have been dismissed, especially as Respondent was the one asserting the positive and so bore the burden of its proof. Its denial of indebtedness to Respondent, it submitted, was only a negative assertion and imposed no burden on it.

I have already held in agreement with the trial judge that appellant in Exhibit D6 admitted its indebtedness to Respondent in the said sum of ₦10,369,000.00 Respondent counterclaimed from it. I therefore do not see how Respondent still needed to prove that admitted sum and or that its decision not to tender appellant’s statement of account affects the proof of that sum.

Appellant’s admission in Exhibit D6 is a relevant fact and constitutes admission against its interest under Section 20 of the Evidence Act 2011. It is a fact which Respondent as his opponent is entitled to rely on in proof of its case: see Awote v. Owodunni (1987)1 NSCC 590 @ 594; Akaninwo v. Nsirim (2008) 9 NWLR (PT 1093) 439 @ 482 (S.C); Spasco Vehicle & Plant Ltd v. Alraine (1995) 5 NWLR (PT 416) 655 @ 674-675 para B-C (SC). Admission being in the nature of confession coming from the horse’s mouth, so to speak, is the best form of evidence if it is unequivocal as appellant did in Exhibit D6. Having so admitted its indebtedness to Respondent in the amount claimed by respondent, appellant had relieved respondent of the need to tender its statement of account. It therefore cannot be heard to complain about the absence of that document. Its statement of account was no longer relevant for purposes of showing that it was indebted to Respondent in the said sum of ₦10,369,000.00 claimed by it. In the event, I resolve this issue too against appellant.

Issue 3: Here appellant argued that Respondent failed to challenge the Forensic Report as

well as the letter (Exhibits C4 and C5) presented to the Court by its sole witness. It argued that that Report formed the basis of its claim so the trial judge was bound to acknowledge and accept it even without any further proof of its assertions.

In answer, Respondent argued that it is the duty of the trial judge to evaluate all evidence presented to it by parties and make findings on it. It then cited Arewa Textiles Plc v. Finetex Ltd (2003) 7 NWLR (PT 819) 322 @ 341 para D-G to submit that no Court will accept evidence merely because the only evidence before the Court is that of the claimant, if it is of no probative value. At any rate, it went on, not only did it challenge the said Report and evidence of CW1 during cross-examination, the Report also failed to show what part of its account contained illegal and excess charges as alleged by it, just as appellant’s sole witness also contradicted himself during cross-examination. It thus argued that the trial judge was right in not relying on the Report of CW1 and in labeling it lopsided, incompetent and not a true reflection of its transaction with appellant.

LJ 1418). The veracity of a witness is judged not solely from his individual statements but in conjunction with all the facts brought out in the course of the testimony.
The apex Court (Pats-Acholonu J.S.C. in lead judgment) drove the point home even further in Neka B.B.B. Mfg. Co. Ltd v. A.C.B. Ltd(2004) 2 NWLR (PT 858) 521 at 550; (2004) ALL FWLR (PT 198) 1175 @ 1197 Paras E-H when it said:
“Finally, let me discuss the point made in the appellant’s brief that the evidence of pw4, which I have described as being utterly hollow, was not challenged. An opposing party should not be expected to challenge evidence that is hollow, empty or bereft of any substance as that would to my mind amount to chasing a shadow. I am familiar with the case of Odulaja v. Haddad (1973) 1 ALL NLR 191 to the effect that an evidence not challenged by the party that had the opportunity to do so should ordinarily be believed and accorded credibility. I believe that such holding rests on the premise that such evidence is capable of being believed if not challenged. In other words, when the evidence is weak in content as not to assist the Court or is manifestly

unreasonable or is devoid of any substance as not to help to resolve the matter in issue it will be safe to ignore it as it does not attain the standard of credibility. Although it is the general rule that uncontradicted evidence from which reasonable people can draw but one conclusion may not ordinarily be rejected by the Court but must be accepted as true, it is also true to say that the Court is not in all circumstances bound to accept as true testimony and evidence that is uncontradicted where it is willfully or corruptly false, incredible, improbable or sharply falls below the standard expected in a particular case.”

In this case, not only did Respondent in cross-examination challenge the said Report and evidence of its maker, the lower Court which saw CW1 testify to defend his said Report and had the duty of evaluating his evidence of excess charges by Respondent of appellant’s account also carried out its duty and came to the conclusion that the report was lopsided and incomplete and does not reflect the true position of the transaction so it could not rely on it (see p.565 of the records). The trial judge went on immediately to

support that finding with evidence on record before it. In fact its meticulous evaluation of the evidence on that issue covers the next two pages of the judgment. Appellant has not faulted those findings.

I shall also add that, the fact that C. W.1 claimed he is an expert does not deny the Court of its duty to subject his evidence to evaluation and reach its own conclusions as the lower Court did: seeOshinowo v. Oshinowo (2005) ALL FWLR (PT 281) 1696 @ 1717, Fayemi v. Oni & Anor (2009) LPELR-4146 (CA) p. 55-59, Sowemimo & Anor v. The State (2004) LPELR-3108 (SC) p. 18-19.

Also of utmost importance is that appellant at a time when proceedings were not pending admitted its indebtedness to respondent. For all these reasons, I also resolve this issue against appellant.

Issue 4: Appellant’s argument here is more in the nature of an omnibus ground of appeal. It complained that the trial judge entered judgment for Respondent’s counterclaim even when there was no cogent and compelling evidence before her. In support of that contention, appellant went back to all its earlier arguments of (1) burden of proof being on respondent as

counterclaimant to prove its counterclaim that it (appellant) was indebted to it in the sum of ₦10,369,000.00 claimed by it and that Respondent could only discharge that burden by tendering its account statement which it did not so it did not prove its indebtedness in that amount; (2) that the Report and evidence of its sole witness Chief Adeyemo sufficiently proved its contention that Respondent made spurious and excessive charges on its account so the trial judge was wrong in holding otherwise, and (3) that Respondent did not adduce any evidence, oral or documentary, to show how it arrived at the ₦10,369,000.00 it claimed it was indebted to it.

All these issues canvassed by appellant here, I have already resolved against it while considering issues 1, 2 and 3 above. I hereby adopt the reasons I gave earlier on them in also resolving issue 4 against appellant.

Issue 5: Here appellant attacked the rejection by the lower Court of the second Report of its expert witness. Citing particularly the cases of Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (PT 668) 243 and Abe & Anor v. Damawa & Anor (2011) LPELR-5007 p.47-48, it argued that

an expert is not a ‘person interested in the proceedings’ within the meaning of Section 83(3) of the Evidence Act 2011 so a document made by him while proceedings are pending is not caught by that provision. It thus urged us to hold that the said report of CW1 was admissible in evidence and should have been admitted.

Respondent while supporting the correctness of the decision of the trial judge, further argued that in any case appellant has not suffered any miscarriage of justice by that decision, even assuming that it was wrong, since another Forensic Report made by the same witness was admitted in evidence. It also argued that appellant’s case was dismissed because it could not prove it with credible evidence and not because of any rightful or wrongful rejection of its said Report. On that note, it urged us to resolve this issue too against appellant.

while proceedings are pending or anticipated cannot be caught by that provision, reason being that an expert’s statements made in such circumstances are actually mere opinions and not hard facts: see Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (PT 668) 243, 279 -280, and Abe & Anor v. Damawa & Anor (2011) LPELR-5007 p.47-48. At any rate, if experts are persons interested in a proceeding as defined by 83(3) of the Evidence Act 2011 and their Reports/Findings caught by it and inadmissible, it will simply mean that no expert will be able to testify in Court and the Court will be denied of the light their expert evidence normally throws on issues before it, after all expert evidence is only resorted to when a case is anticipated or pending in Court.

So, at the end of the day, an error was made by the trial judge in her ruling in issue. The bigger issue, however, is whether that error of itself and by itself alone can result in the resolution of issue 4 in favour of appellant. I think not, for the Court still has to ask itself whether the rejection of the said Report caused any miscarriage of justice, and secondly whether the decision of the

lower Court would have been different without the said second Report of CW1. To answer those questions, the provisions of Section 251(2) of the Evidence Act 2011 become relevant. That provision states that wrongful exclusion of evidence shall not be a ground for reversal of any decision in any case where it appears to the Court on appeal that had the evidence so excluded been admitted the decision would have been the same. Here, the evidence is that not only was a similar report of the same witness tendered by that witness and admitted in evidence, appellant’s argument in this appeal has also been that that other Report that was admitted was sufficient to establish its case of spurious charges by Respondent on its account. That, by implication, means that the rejection of the said second Report of CW1 would have made no difference to appellant’s case. At any rate, it has not even suggested that there was anything in the said rejected Report that was not contained in the Report the trial judge admitted on which appellant founded its argument of having made out its case before that Court and here. In the circumstance, I resolve this issue too against the appellant

Issue 6: Here appellant argued that the costs of ₦750,000.00 the trial judge awarded against it at the end of the case were not only punitive but also outrageous, unreasonable and not a proper exercise of the Court’s discretion in awarding costs so we should interfere with them. It ended by submitting that the Respondent was not even entitled to costs because its counterclaim ought not to have succeeded.

Respondent, in supporting the costs awarded it by the trial judge, relied on the provisions of Ord. 53 Rule 1 of the Lagos State High Court (Civil Procedure) Rules 2019 and the cases of NNPC v. Clifco Nigeria Ltd (2011) LPELR-(SC) 233/2003 and Jaiyeola v. Abioye (2002) LPELR-7169 (CA) to argue that costs follow the events; that costs is pecuniary allowance made by the Court in its discretion to a successful party against the losing party for prosecuting or defending the action in Court, so they were properly awarded to it. It also directed our attention to the records of the lower Court showing that in the course of the proceedings at the trial Court, it also had to pay costs ranging from ₦50,000 and ₦100,000.00 to appellant.

All those costs, it submitted, were awarded against it at appellant’s instance so it is wrong for appellant to argue against costs now because they were awarded against it.

Order 53 Rule 1 of the Lagos State High Court (Civil Procedure) Rules 2019 states the principle the Court should observe in awarding costs. It reads:
In fixing the amount of cost the principle to be observed is that a party who is in the right is to be indemnified for the necessary expenses he has incurred in the Court of proceeding and compensated for his time and effort in coming to Court.
Here, it must be noted that it is appellant that commenced the proceedings in issue in the trial High Court of Lagos State. Those proceedings started as far back as 2011 and ended only seven years later in 2018. Appellant in his case claimed, most frivolously that it was not indebted to Respondent at all, that rather it was respondent that was indebted to it, as against its earlier express admission of indebtedness. Respondent was thus put to the trouble and expense of defending that vexatious claim of appellant by engaging counsel to defend it and also counterclaiming against

appellant. It rightly included in its counterclaim costs of ₦1.5m for the action. In Rewane v. Okotie-Eboh (1960) NSCC 135 the apex Court while recognizing that ‘costs are not given as a bonus to the party who receives,’ went on to add (citing Baron Bramwell in Harold v. Smith 157 E.R. 1229 @ 1231 approvingly) that:
“Costs will, therefore, be awarded on the ordinary principles of genuine and reasonable out-of-pocket expenses and normal Counsel’s cost usually awarded for a leader and one or two juniors.”
The apex Court in its more recent judgment by M.D. Muhammad J.S.C. (with his brethren I.T. Muhammad (now CJN), Ariwoola, Ogunbiyi and Kekere-Ekun J.J.S.C. concurring) reconfirmed this position in Union Bank of Nigeria Plc v. Mr. N.M. Okpara Chimaeze (2014) 9 NWLR (PT 1411) 166 while rejecting the old argument (see p. 180 paragraph G-H), which was fast gaining ground in these shores, that ‘award of special damages on fees paid to a solicitor by a party was ‘against public policy.’
In addition to solicitor’s costs so incurred by it, Respondent also incurred costs by way of payment of filing

fees for its numerous processes to defend that case. The records also confirm that in the course of that proceeding Respondent was made to pay directly to appellant total costs of ₦180,000.00 (One Hundred and Eighty Thousand Naira). All those costs were awarded on appellant’s application. Those costs would have been avoided if appellant had been more reasonable in its admitted obligation to Respondent and settled its indebtedness to respondent instead of resorting to litigation. It also spent its time and effort defending that suit and prosecuting its avoidable counterclaim for seven years. The Rules of the trial Court earlier reproduced confirm that, as the successful party, it has to be compensated for all necessary costs incurred by it. In the light of the foregoing, I am unable to see how I can agree with appellant that the costs of ₦750,000.00 the trial judge awarded against it were excessive and Williams, J. exercised her discretion wrongly in awarding those costs against it. In the event this issue is also resolved against appellant.

The summary of all the foregoing is that this appeal is unmeritorious and hereby dismissed while the

judgment of the trial High Court including costs is hereby affirmed.
Costs of the appeal are assessed at N200,000.00 against appellant.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft of the judgment delivered by my Learned brother, BOLOUKUROMO MOSES UGO, J.C.A.

I am in agreement with his Lordship in the reasoning and conclusion reached on all the germane issues that determined the fate of the appeal. The appeal is without doubt, unmeritorious and rightly dismissed.
I abide by his Lordship’s order as to cost.

Appearances:

Mrs. Janet Taiwo Oyetan For Appellant(s)

David Duvwode, Esq. For Respondent(s)