DARENG v. F.B.N (2020)

DARENG v. F.B.N

(2020)LCN/14775(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Monday, November 16, 2020

CA/J/4/2019

RATIO

COURT: DUTY OF COURT TO RESOLVE LIVE ISSUES

The function of any Court, be it trial Court or appellate, is only to resolve and decide live issues in the case. Live issues in a case are propositions of law or fact which is/are so cogent, weighty and compelling that their determination in favour of one party will entitle him to the decision of the Court. SeeIwuoha v. Nigerian Postal Service Ltd & Anor (2003) FWLR (PT 160) 1535 @ 1552 (SC). The corollary of this is that the Court has no business using its precious judicial time to answer merely academic questions put before it by litigants. PER MOSES UGO, J.C.A.

BANKING LAW: EFFECT OF WHEN A CUSTOMER OPENS AND DEPOSITS INTO AN ACCOUNT OR BORROWS MONEY FROM A BANK

Once a customer opens an account and deposits his money with a bank or borrows money from it as it was common ground between parties in this case, a contractual relationship of banker and customer immediately comes into force between them as a matter of law and fact (see Sani Abacha Foundation for Peace & Unity v. U.B.A Plc (2010) ALL FWLR (PT 522)1668 @ 1680-1681 (SC); Yesufu v. A.C.B. (1981) 1 S.C. 74; Fidelity Bank Plc v. Okwuowulu (2012) ALL FWLR (PT 644) 151 @ 161 -162), it therefore did not need a further declaration by the Court whose only duty is to resolve live issues. PER MOSES UGO, J.C.A.

DECLARATION OF RIGHT: WHEN CAN A DECLARATION OF RIGHT BE MADE

It also has to be pointed out that declarations of right – like the claims of appellant that the Court should declare that there is an existing and binding contract between the plaintiffs and the defendant, etc – can only be made when the particular right is contested, not when it is not contested as in this case: see Arowolo v. Olowokere (2012) ALL FWLR (PT 606) 398 @ 415 (SC); Dantata v. Mohammed (2000) ALL FWLR (PT 21) 889 @ 908 (SC). PER MOSES UGO, J.C.A.
COURT: ROLE OF THE COURT IN OUR ADVERSARIAL SYSTEM

At any rate, the role of the Court in our adversarial system is merely adjudicatory and not inquisitorial so it cannot do what Appellant suggested with his argument. The apex Court (Bello, JSC, (later CJN) could not have put this position of the law better when it said in Onibudo v. Akibu (1982) 7 S.C 29 @ 39 that:
“It needs to be emphasized that the duty of the Courts is to decide between the parties matters on the basis of what has been demonstrated, tested, canvassed and argued in Court. It is not the duty of the Court to do cloistered justice by making an inquiry into the case outside Court even if such inquiry is limited to examination of documents which were in evidence when the documents had not been examined in Court and their examination out of Court disclosed matters that had not been brought out and exposed to test and were not such matters that, at least, must have been noticed in Court.”
See also Duruminya v. Commissioner of Police (1961) NRLNR 71 @ 73-76; Action Congress of Nigeria v. Nyako (2013) ALL FWLR (PT 686) 424 @ 455, Sa’eed v. Yakowa (2013) ALL FWLR (PT 692) 1650; Angyu v. Malami (1992) 9 NWLR (PT 264) 242 @ 253-254 H-B. PER MOSES UGO, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

Mr. BULUS PAM DARENG (Doing Business Under The Name And Style Of Darmatist International Company) APPELANT(S)

And

FIRST BANK OF NIGERIA PLC RESPONDENT(S)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal and cross appeal are from the judgment of the High Court of Plateau State dismissing the claims and counterclaims of appellant/cross-respondent and respondent/cross-appellant respectively in Suit No PLD/J172/2017. Appellant/cross-respondent, Mr. BULUS PAM DARENG (Doing business under the name and style of Darmatist International Company) in that suit claimed from First Bank of Nigeria Plc, who was defendant/counterclaimant but now respondent/cross-appellant, as follows:
(1) A declaration that there is an existing and binding contract between the plaintiff and the Defendant.
(2) A declaration that the failure and or refusal of the Defendant to comply with the terms of the contract amounts to a breach.
(3) A declaration that the unilateral blockage of account No: 2006791643 belonging to the plaintiff by the Defendant for over two years without any justifiable reason(s) amounts to a breach.
(4) A declaration that the refusal of the defendant to honor the plaintiff’s 2 separate Cheques No: HC 13089564 dated 16/9/2014 for ₦1,052,500.00 and Cheque No: HC

13089565 dated 4/10/2014 for ₦401,433.00 for no reason(s) violates the terms of the existing binding contract between the parties.
5. An order of this Honourable Court directing the defendant with immediate effect to immediately unblock account No: 2006791643 belonging to the plaintiff that was secured and guaranteed.
(6) An order of this Honourable Court directing the defendant to reverse all purported accrued interest on the said account NO: 2006791043 from the day it illegally blocked the account till date:
(7) An order of Court directing the defendant to pay the sum of ₦297, 000,000.00 as special damages.
(8) An order of this Honourable Court directing the Defendant to pay the plaintiff the sum of N200, 000,000.00 (Two hundred million naira) only as punitive and exemplary damages for illegally blocking the account of the plaintiff for no justifiable reasons.

First Bank, besides denying that claim in its statement of defence, also counterclaimed for:
1. An order of Court foreclosing the equitable mortgage over the property of the plaintiff deposited with the defendant covering Dee Medical Centre Bukuru.

Cost of this action.The claim of the appellant/cross-respondent in summary was that:
1. Following his retirement from Respondent/cross-appellant’s service as one of its executives, he applied for various facilities from it to the tune of ₦25,000,000.00 which he repaid without any problem. Thereafter, he applied for over draft facility of ₦10, 000,000.00 from the respondent and another loan of ₦20, 000,000.00 with repayment of ₦1, 000,000.00 every month, which he said he did without default.
2. That both the overdraft and the loan facility were secured with his personal guarantee executed on FBN FORM 3042 wherein he deposited the title documents over his property housing Dee medical Centre along Bukuru Express way, Bukuru, valued for over ₦1,000,000,000.00 only and another (5) five Bedroom Bungalow with boys quarters at Dogon Dutse, Jos also valued for over ₦100, 000,000.00 as a backing of the personal guarantee of the plaintiff for the facility.

He said he wrote a letter to the defendant/Respondent (First Bank) requesting for the renewal of the existing overdraft and loan on 12th June, 2014; that First Bank responded by a

letter dated 17th September, 2014. He said at the time he wrote the above letter the loan balance reflecting in his account was about ₦5,000,000.00 from the ₦20,000,000.00 original limit. He said he issued two different cheques – one dated 16/9/2014 in favour of Mrs. M.K. Dareng in the sum of ₦1,052,500.00 and the other dated 14/10/2014 in favour of Leadway Insurance Company in the sum of ₦401, 433.00 – but both cheques were presented returned unpaid by First Bank without any reason, in line with banking requirement. He said First Bank even proceeded to block his account thereby making it impossible for him to operate it. After the blocking of his account, he says, his customers deposited made deposits in various sum totaling ₦1,904,420.00 into the same account No. 2006791643 on the 24th November, 2015 and but he was never allowed access to utilize same till date by First Bank, hence his claims.

First Bank denied liability and averred instead in its defence that:
1. While Plaintiff/appellant/cross-respondent actually maintained Account No. 200679643 with it and was granted overdraft of ₦10,000,000.00 on that account; that he

never even finished repayment before he again applied for grant of Loan of ₦20,000,000.00 and the said amount credited into his same Transaction Account No: 2006791643.
2. That the overdraft had ₦2, 571,941.66 in debit and when the loan was granted, the debit was deducted since the loan is in credit thereby leaving a balance of ₦17, 022, 165. 02 in credit in his transaction account.
3. That Plaintiff//appellant/cross-respondent drew down the ₦20. 000,000.00 Loan account and had no credit balance again to accommodate any instrument.
3. That the loan of ₦20,000,000.00 given to Plaintiff/appellant by it was exhausted on the 7th May, 2012; that after exhausting the loan, the Plaintiff//appellant/cross-respondent went back to enjoying the overdraft which extended to ₦10, 000,000.00 limit, which he never paid fully.
4. That plaintiff/appellant/cross-respondent was requested to pay down the overdraft before September, 2014 but he refused hence it stopped the overdraft from 11th Sept. 2014.
5. That only one property was deposited with it by appellant as an equitable mortgage over the property housing Dee Medical Centre Bukuru.

That between 1st September, 2014 and 4th October, 2014 plaintiff/appellant was indebted to it to the tune of ₦8,570.166.78 so there was no funds in his account to accommodate the cheques he issued.
7. That his account was not blocked, rather, payments were still made into the account but he could not make withdrawals from it because the lodgments were used to repay his indebtedness to it.
8. That the only title document of the plaintiff with the defendant is to secure the loan and overdraft and it cannot release it until the loan is repaid.
It ended by counterclaiming from him as earlier stated.

At the hearing of the suit, the plaintiff/appellant/cross-respondent, Dareng, testified as PW1 and tendered a number of documents including the statement of Account No.2006791643 of Darmatist International Company (Exhibits 10) as well as Offer of Credit Facility Term Loan Restructured of Secured Overdraft of ₦14,778,000.00 (Exhibit 11) he signed with First Bank. Through him and during cross-examination, First Bank tendered his two letters to it: the first one dated 15/7/2015 and titled Acceptance of Offer Terms of Loan Restructured

(Exhibit 13) and the other letter (Exhibit 14) dated 15/7/2015 being an undertaking/commitment by him to ensure that the facility is fully liquidated within the approved tenure without any default. First Bank called no testimonial evidence in its defence; it rather relied on the evidence, oral and documentary, given by Mr. Dareng as plaintiff.

In its judgment of 18/9/2018, the trial High Court of Plateau State (I. I. Kunda, J. presiding) held both claim and counterclaim not proved and dismissed them. In respect of the main claim of appellant, it held that what gives rise to a claim against a banker for refusal to honour a cheque is sufficiency of funds in the customer’s account to accommodate his cheque but that was not the case in appellant’s case given his admission that he did not have sufficient funds in his account to accommodate the cheques he issued. And on the counterclaim of First Bank, it held that, for a mortgagee to exercise his right of foreclosure two conditions must be proved: (1) that a debt had arisen, and (2) that the mortgagor has failed to observe the terms of the mortgage; that even though First Bank relied on the

admission of appellant that he had not liquidated the loan facility it granted him and he was in fact indebted to it, there was no proof by it of failure of observance of the terms of the mortgage by Mr. Dareng, more so as, according to it, the evidence of Mr. Dareng (P.W.1) that First Bank was expected to pay ₦14,778,000.00 to his Transaction Account No. 2006791643 was not denied by First Bank by its failure to call testimonial evidence.

Both parties are dissatisfied with the dismissal of their claims, even as they are both satisfied with the dismissal of the opponent’s claims hence this appeal and cross appeal.

MAIN APPEAL
Mr. Dareng as the main appellant raised ten grounds of appeal against the decision of the lower Court dismissing his claims and formulated for our determination the following four issues:
1. Whether the learned trial judge was right when he failed to consider and determine the issue raised by him as to whether there was in existence a contract between him and First Bank.
2. Whether the learned trial judge was right when he held that there was no sufficient fund standing in his credit account to satisfy

the amount payable on the two cheques, without considering the fact that he had an overdraft.
3. Whether the learned trial judge was right when he held that his account was not blocked even when he could not make withdrawals, and further that he could not make withdrawals because his account was in debit.
4. Whether the decision of the trial judge can be supported in law having regards to the facts and circumstances of the case as well as the evidence before it.

First Bank as respondent to that appeal condensed the issues arising from Mr. Dareng’s appeal to just the following two:
1. Whether the issue of existence of contract was in issue at the lower Court.
2. Whether the lower Court was not right to have dismissed the case of the appellant, he having not proved his case in line with his pleadings.

On his issue 1, Mr. Dareng relying on pages 182 – 183 of the records of appeal submitted that he placed before the trial Court in his final address six issues, two of which were (1) whether or not a contract existed between him and First Bank and (2) whether or not the contract between the two of them was breached. These

two issues, he submitted, were the foundation of his case as they showed the contractual relationship between a bank and its customer which is that of a creditor and a debtor. He complains that the said issues were not resolved by the lower Court in its judgment. He argued that for a just determination of the case the first thing the lower Court should have done is to consider whether there was a contract between him and First Bank, the nature of that contract with its terms and condition and how and why he was in debit based on the documents placed before it as evidencing their contract. He says the lower Court failed to do that but rather chose to rely on his oral evidence in declaring, wrongly, according to him, that he did not have sufficient credit to satisfy the amount on the two cheques he issued.

First Bank of Nigeria replied that existence of contract between parties was not in issue in their pleadings as it did not join issues with him on existence or non-existence of contract between them so the lower Court which was only bound to resolve issues in dispute between parties was not under any duty to return an answer simply because appellant had

in his final address made it an issue for determination. Appellant, it submitted, never averred that he was its customer; that all he stated was his account number with it, which, to keep the records straight, it expressly admitted he was its customer. Having admitted him as its customer and so no issue arose between them regarding the existence of a contract between them, the learned trial judge, it argued, had nothing to decide on the case regarding existence and non-existence of customer and banker relationship between them.

Resolution of issue
I see a lot of force in the argument of First Bank. The function of any Court, be it trial Court or appellate, is only to resolve and decide live issues in the case. Live issues in a case are propositions of law or fact which is/are so cogent, weighty and compelling that their determination in favour of one party will entitle him to the decision of the Court. SeeIwuoha v. Nigerian Postal Service Ltd & Anor (2003) FWLR (PT 160) 1535 @ 1552 (SC). The corollary of this is that the Court has no business using its precious judicial time to answer merely academic questions put before it by litigants. That

was the problem with the issue of whether there was a contract between appellant and First Bank put before the lower Court by appellant. That question was in every sense academic given that it was undisputed that appellant, Mr. Dareng, was and still is a customer of Respondent’s bank and it is in the course of that banker/customer relationship their instant dispute arose. Once a customer opens an account and deposits his money with a bank or borrows money from it as it was common ground between parties in this case, a contractual relationship of banker and customer immediately comes into force between them as a matter of law and fact (see Sani Abacha Foundation for Peace & Unity v. U.B.A Plc (2010) ALL FWLR (PT 522)1668 @ 1680-1681 (SC); Yesufu v. A.C.B. (1981) 1 S.C. 74; Fidelity Bank Plc v. Okwuowulu (2012) ALL FWLR (PT 644) 151 @ 161 -162), it therefore did not need a further declaration by the Court whose only duty is to resolve live issues. The live issue between parties here was whether Mr. Dareng had sufficient funds in his account with First Bank to back up the two cheques he issued and was First Bank wrong in returning them unpaid. That was the

issue it ought to give answer to and not purely academic issue of the type complained of by Mr. Dareng.
It also has to be pointed out that declarations of right – like the claims of appellant that the Court should declare that there is an existing and binding contract between the plaintiffs and the defendant, etc – can only be made when the particular right is contested, not when it is not contested as in this case: see Arowolo v. Olowokere (2012) ALL FWLR (PT 606) 398 @ 415 (SC); Dantata v. Mohammed (2000) ALL FWLR (PT 21) 889 @ 908 (SC).
At any rate, assuming, and without conceding that the lower Court was bound to answer appellant’s academic question of existence of contract between him and Respondent, that issue was subsumed in the live question aforesaid that it answered so it needed not answer it again: seeOkonji v. Njokanma (1991) 7 NWLR (PT 202) 131 @ 146 (SC); Adebayo v. Attorney General of Ogun State (2008) LPELR-80 p.14; Anyaduba v. N.R.T.C. Ltd (1992) 7 NWLR (PT 243) 535, 7-UP Bottling Co. Ltd v. Abiola & Sons Ltd (2001) 6 S.C. 73 @ 101, (2001) 13 NWLR (PT 730) 460 (SC).

I shall still go further to say that, assuming,

but still without conceding, that the said question posed by appellant before the lower Court needed a definite answer, this Court is invested with necessary powers by Section 15 of the Court of Appeal Act 2004 to resolve any question not answered by the trial Court, provided such question does not involve credibility of witnesses, as in the question posed by appellant. See Etajata v. Ologbo (2007) 6 NWLR (PT 1061) 554 @ 584 (SC); Owners of M.V. Arabella v. N.A.I.C. (2008) 11 NWLR (PT 1097) 182 @ 217 (SC). In exercise of that power, I have already here answered that question and so be it. In the event, I resolve this issue against appellant and in favour of Respondent.

Issues 2 and 3 of appellant
Mr. Dareng argued his issues 2 and 3 together. He submitted on them first, that in ascertaining whether the terms of an agreement between a banker and its customer were breached by either party the Court should not look only into what the parties wrote or said but also what they did and the trade or custom governing their relationship. He then cited this Court’s decision in Afribank Nigeria Plc v. Anuebunwa (2012) 4 NWLR (PT 1201) 560 in support of

that proposition and went on to take us through the documents he tendered in support of his case and argued that the lower Court was wrong in limiting itself to just his answers under cross-examination in finding against his contention that he had sufficient funds with First Bank to meet the two cheques he issued. He then prayed us to interpret those documents ourselves, overturn the lower Court’s judgment and enter judgment for him in terms of his claim.

As regards the blocking of his account which is his issue 3, he argued that it was clear from the evidence and even First Bank as defendant admitted it that it dishonoured his cheques so the lower Court was again wrong in holding that his account was not blocked since First Bank allowed deposits to be made to it. He argued that so long as it was common ground that he was not allowed by First Bank to make withdrawals from his account and cheques issued by him on it were dishonoured, his account was blocked.

First Bank in answer argued that the crux of appellant’s case was his averment in paragraphs 10-13 of his statement of claim where he complained of breach of his banking contract with

it by its refusal to honour his cheques even when he had sufficient funds in his accounts to accommodate the amounts in them. It then submitted that it was only bound to honour cheques when the customer issuing them had sufficient funds to accommodate them, which was not the case here given that even appellant admitted in cross-examination that he did not have sufficient funds in his said account to accommodate his cheques. That being the case, it submitted, appellant who had the burden to prove his case failed in that duty and it was rightly dismissed by the lower Court. As for appellant’s contention that his account was blocked, it argued that not only was issue of blocking of account not the crux of his case, appellant even failed to prove it given his answers under cross-examination that there were payments into his account even after its refusal to honour his cheques. A blocked account, it was submitted by its counsel Mr. Shaibu, cannot have transactions.

Resolution of issues
The first issue here is whether appellant actually proved that he had sufficient funds in his account with Respondent to accommodate the two cheques he drew on it and

the lower Court wrong in holding that Respondent was in order in dishonoring them. The answer to that question clearly lay in the very answers appellant gave to the lower Court when he was quizzed by Mr. Shaibu for First Bank. This is what he, Mr. Dareng, an undisputed former big shot of First Bank of Nigeria and so undoubtedly familiar with what constitutes indebtedness to a bank on a loan and overdraft told the lower Court under cross-examination. Hear him:
“I am owing First Bank Plc the money I took from them; I confirm that. It is correct: I have not repaid the money.
“I confirm that by exhibit 10, the 20 Million Naira loan was exhausted by me on the 7th May 2012. I confirm that by Exhibit 10, 11th September to 10th October 2014 my account is in debt.
“I confirm that by Exhibit 12, I wrote for renewal of overdraft to the defendant dated 16/9/2014. By Exhibit 1, the defendant wrote me that they will not renew the overdraft unless I paid the amount I am owing, this I confirm.
“It is true exhibits 4(1) and (2) are my cheque (sic). One is 16/9/2014 and the other is 4/10/2014. It is not correct that I drew these

cheques within the period I applied for renewal and the bank refused. I can confirm that it was on the same date I applied for renewal that I knew that I draw (sic) dated 16/9/2014 i.e. exhibit 4(1). I confirm that as at the 16/9/2014 I was owing the bank over 8 million Naira.
“I also confirm that exhibit 4(2) was presented after I had received the letter of exhibit 1. It is true that because I could not repay the loan, the bank restructure the repayment for my commitment in Exhibit 11. I did not accept the terms in the restructuring of the loan in Exhibit 11. I wrote a letter to the Defendant rejecting the restructuring. It is correct that Mrs. Mildred K. Dareng is a signatory to the account. She is also one of the signatory (sic) to the restructuring agreement. She is an official of Darmatist International Company. Whatever she signs binds the company.
“I have seen the document shown to me. I confirm that the said document is signed by Mrs. Mildred K. Dareng.”

Having so damaged his case with his own mouth, appellant now complains that the lower Court was wrong in not going beyond his oral admissions to scrutinize the

documents he tendered and hold to the contrary, so to speak, that he actually had sufficient funds with First Bank and he was simply mistaken in admitting that he did not. There is no way the trial judge could have done that. In the first place, what he told the Court is admission against his pecuniary interest on a matter within his knowledge, which he would ordinarily have no interest to misrepresent to the Court; his opponent, First Bank, is therefore entitled to rely on it in proof of her case, just as it is also open to the Court to do the same. See Section 42 of the Evidence Act 2011 and the case of Awote & Ors v. Owodunni (1987) 1 NSCC 590 @ 594, (1987) LPELR-659 (SC) p. 8. At any rate, the role of the Court in our adversorial system is merely adjudicatory and not inquisitorial so it cannot do what Appellant suggested with his argument. The apex Court (Bello, JSC, (later CJN) could not have put this position of the law better when it said in Onibudo v. Akibu (1982) 7 S.C 29 @ 39 that:
“It needs to be emphasized that the duty of the Courts is to decide between the parties matters on the basis of what has been demonstrated, tested,

canvassed and argued in Court. It is not the duty of the Court to do cloistered justice by making an inquiry into the case outside Court even if such inquiry is limited to examination of documents which were in evidence when the documents had not been examined in Court and their examination out of Court disclosed matters that had not been brought out and exposed to test and were not such matters that, at least, must have been noticed in Court.”
See also Duruminya v. Commissioner of Police (1961) NRLNR 71 @ 73-76; Action Congress of Nigeria v. Nyako (2013) ALL FWLR (PT 686) 424 @ 455, Sa’eed v. Yakowa (2013) ALL FWLR (PT 692) 1650; Angyu v. Malami (1992) 9 NWLR (PT 264) 242 @ 253-254 H-B.

Again, it needs to be realized that the principal claims of appellant were declarations the making of which lies at the discretion of Court. Declarations are not made simply because the defendant admitted the claimant’s averments or that he did not even file a defence to the action. Declarations of right are only made when the Court is satisfied that taking into account all the circumstances of the case the claimant is fully entitled to them. In

fact, whether or not the point is taken by the defendant, the Court is still not bound to make a declaration once it does not consider it a proper case, in its discretion, to make one. Evidence to support a declaration must be strong and cogent: see Makanjuola v. Ajilore (2001) 12 NWLR (pt. 727) 416, and Network Security Ltd. v. Dahiru (2008) ALL FWLR (pt. 419) 475 @ 498; Bello v. Eweka (1981) NSCC 48 @ 57-58. By Mr. Dareng’s own showing, no such strong case was made by him so the lower Court was on firm ground in dismissing the declarations he sought.

And coming to whether his account was blocked by First Bank, it does not quite seem to me that the trial judge and First Bank were correct in their contentions that because deposits were permitted by First Bank to be made to appellant’s account even after dishonouring his cheques his account was not blocked. Whether an account is blocked or not is determined by whether indiscriminate and unlimited withdrawals can be made from it, and not whether deposits were allowed into it. That, the online investment encyclopedia, Investopedia.com made clear when it stated that:

Very broadly, a blocked account refers to an account that does not allow unlimited or indiscriminate withdrawal or other access but instead has certain restrictions or limitations on when, how much, and by who, capital can be withdrawn. Accounts can be blocked for several reasons, which may be imposed by a bank’s own rules or by external legal rulings – such as in the case of splitting marital assets.

Flowing from this is that, since it is common ground that First Bank denied appellant from honouring cheques issued by appellant on his account with it, which act practically meant he was denied from making any withdrawal from it, his account was blocked, at least technically. So, in effect, on the dry bones of the law, the lower Court was wrong. I say its wrongness was merely on the dry bones of the law because on the issues joined by parties in their pleadings this argument of blocking of appellant’s account by First Bank even seems academic given appellant’s admission that he had exhausted his funds with First Bank and was even indebted to it when he issued his two cheques on it. The Bank was therefore not under any duty to honour his cheques drawn on

that account or make withdrawals from it. By his answers to questions put to him in cross-examination, appellant had taken the sail off his argument of unlawful blocking of his account. He therefore suffered no injustice by the technically erroneous answer the lower Court gave to the question he posed to it. Appeals, it must be noted, are not won on trifling errors of Courts but on whether miscarriage of justice was caused by the error complained of: see Bankole v. Pelu (1991) 11 – 12 S.C 116 @ 120; Agu v. Nnadi (2003) 11 M.J.S.C 51 @ 58; Makanjuola v. Balogun (1989) 3 NSCC 289 @ 303, Ezeoke v. Nwagbo (1988) 1 NWLR (PT 72) 616 @ 626 G-H; Ukaegbu v. Ugoji (1991) 6 NWLR (PT 196) 127 @ 147; Umeojiako v. Ezenamuo (1990) 1 NWLR (PT 126) 253 @ 274 (SC). That was not the case here.

For all the foregoing reasons, I have no hesitation in resolving, and hereby resolve appellant’s issues 2 and 3 against him.

On his fourth and final omnibus issue of whether the decision of the trial High Court of Plateau State Court dismissing his case can be supported in law having regards to the facts and circumstances of the case as well as the evidence before

it, appellant repeated his arguments in his earlier three issues, took us again through the documents he tendered and submitted that the lower Court did not properly evaluate the said documents which formed the bedrock of his banking contract with First Bank. He complained again that it is not enough nor proper evaluation of evidence for the lower Court to simply rely on his answers under cross-examination to conclude that First Bank was not in breach of contract. On that note, he asked us again to intervene and set aside the judgment.

Resolution of issue
Sufficient reasons have already been given in the previous issues on why these arguments of appellant are untenable. I do not intend to repeat myself. For purposes of resolution of this issue, I adopt the answers I gave to issues 1 to 3 in resolving this issue too against appellant.
In effect, appellant’s appeal fails in its entirety and is hereby dismissed while the judgment of the High Court of Plateau State dismissing his claims is affirmed.

CROSS APPEAL
(First Bank Plc v. Mr. Bulus Pam Dareng)
First Bank of Nigeria Plc erected its cross-appeal on two grounds and

framed from them the following two questions for this Court to determine:
1. Whether the learned trial judge was right to have held that there was no deposit of money into the respondent’s account in accordance with Exhibit 11, to have dismissed the appellant’s counterclaim.
2. Whether the learned trial judge was right to have held that there is no evidence of proof of breach of the equitable mortgage given the evidence of PW1 under cross-examination and Exhibit 14.

On its issue 1, First Bank argued, through its counsel Mr. F.O. Shaibu, that Kunda, J., misunderstood its debt Restructure Agreement (Exhibit 11) with Mr. Dareng hence his decision that there ought to be, but was not, deposit of money in Appellant’s Statement of account (Exhibit 10) so its counterclaim was liable to be dismissed. Counsel submitted that the Restructure of Loan Agreement entered into by the two parties was not a fresh loan for fresh funds to be paid by First Bank to cross-respondent’s account but simply an agreement for merger/restructure of Mr. Dareng’s existing indebtedness to First Bank by making it a term loan to enable him pay it with

ease. Counsel argued that if the Term Loan were a fresh loan as the lower Court reasoned Mr. Dareng’s account would have borne a different number and not his already pre-existing loan account No. 200671643. This fact, counsel submitted, was even made clear by First Bank’s averments in paragraphs 16(d) and 24 of its statement of defence. To further buttress his argument, learned counsel pointed out that the Restructure Agreement (Exhibit 11) does not contain any clause for fresh payment of restructured amount into Mr. Dareng’s account. The holding of Kunda, J., that Mr. Dareng’s statement of account (Exhibit 10) ought to but did not show evidence of deposit of the term loan, he thus argued, is perverse as the sworn deposition of Mr. Dareng in his witness statement that monies ought to have been paid to his statement of account (Exhibit 10) cannot vary the terms of his restructure agreement (Exhibit 11) with First Bank. Documents, counsel submitted, ought to speak for themselves; that oral evidence is not admissible to vary, add or take away from their contents. Counsel complained that Kunda J. did not consider First Bank’s

averments in paragraphs 16(d) and 24 of its statement of defence and the evidence led on them vide the cross-examination of Mr. Dereng as P.W.1. He said even Exhibit 14 (appellant’s acceptance of the restructure agreement) tendered by First Bank was not considered by the trial Court. Counsel thus prayed us to interfere with the lower Court’s judgment and resolve this issue in First Bank’s favour.

On issue 2, learned counsel first pointed out that the mortgage between Mr. Dareng and First Bank was not in writing but merely an equitable mortgage for deposit of title documents of Mr. Dareng; its term was therefore that he pay his debt to First Bank or his property is sold. He referred us to paragraph 24 of its statement of defence and counterclaim where First Bank averred that since the restructuring in July 2015 of Mr. Dareng’s indebtedness to it he has not repaid the loan despite his own undertaking in Paragraph 2 of Exhibit 14 that “We hereby undertake/commit to ensure that the facility is fully liquidated within the approved tenure without any default.” The tenor of that restructured loan agreement in Exhibit 11, it

was further pointed out, is twenty months, to expire by March 2017, yet it remained unpaid by Mr. Dareng’s own admission. Counsel referenced Mr. Dareng’s testimony under cross-examination where he said “I am owing First Bank Plc the money I took from them; I confirm that. It is correct; I have not repaid the money… It is true that because I could not repay the loan, the bank restructure the repayment for my commitment in Exhibit 11.” Citing Akomolafe v. Guardian Newspaper Press Ltd (2010) 3 NWLR (PT 1181) 338 @ 351 (SC), he submitted that evidence elicited under cross-examination constitutes evidence for the cross-examiner to rely on to prove his case so there was abundant evidence, oral and documentary, even from the borrower/cross-respondent himself before the trial judge proving First Bank’s case that he had not repaid his loan in line with the restructured agreement in Exhibit 11 he entered with it, the lower Court was therefore wrong in its verdict dismissing its case. Counsel said that Kunda J. wrongly applied to the case principles applicable to a legal mortgage where the terms of the mortgage are documented.

Citing Gwarzo v. Mohammed (2013) 12 NWLR (PT 1369) 576 @ 605, he submitted that equitable mortgage by deposit of title documents is different from legal mortgage, that such an equitable mortgage merely takes the form of deposit of title documents as security for loan; that the only remedy available to an equitable mortgagee is to sue for recovery of the funds it lent the mortgagor or for foreclosure so that it can take possession of the property as it did. He said there was no mortgage document before the lower Court to hold as it did that there was no evidence breach of it. He said, too, that Exhibit 11 is not a mortgage agreement but simply the restructuring of an existing loan, which gave birth to the Term Loan. Counsel concluded that at any rate, First Bank demonstrated and adduced abundant evidence to prove breach by Mr. Dareng of his equitable mortgage with it and we should so hold, resolve this issue too in First Bank’s favour, allow its appeal, set aside the judgment of the lower Court dismissing its counterclaim, hold that it proved its counter claim and enter judgment for it as claimed by it.

Cross-respondent, Mr. Dareng on his part

formulated two issues on the cross-appeal as follows:
1. Whether First Bank after waiving its right to open its defence to his case or evidence in support of its counterclaim to the suit could still be entitled to the reliefs it sought in the counterclaim.
2. Whether First Bank proved its case to be entitled to the foreclosure order it sought.

The crux of his argument on his issue 1 is that First Bank by choosing not to call any testimonial evidence (i.e. oral evidence) had abandoned its defence and counterclaim and so cannot seriously assert that it established its counterclaim against him. By its decision not to call oral witnesses to prove its counterclaim, he further argued, First Bank also admitted all his averments, that admission can be formal or informal, for which he cited this Court’s decision in Fairline Pharmaceutical Industries Ltd & Anor. v. Trust Adjusters Nig. Ltd (2012) LPELR-20860 (CA) 63-64. He further argued that where the defence does not adduce evidence he leaves the Court with no other evidence or set of facts with which to do the imaginary measuring of the judicial scale. He said having so

‘abandoned’ its statement of defence and counterclaim, even the answers First Bank elicited from him under cross-examination and Exhibits 13 and 14 it tendered through him have no foundation to sustain them so we should expunge them from the records; it did not matter, he submitted, that he did not object to their admission during the trial; that parties are bound by their pleadings and since First Bank had abandoned its pleadings, they are not evidence for the Court to act on.

On his issue 2, he argued that before a mortgagee can apply for foreclosure of the mortgaged property his power of sale must have arisen. That, he submitted, depends on two factors namely (1) that the debt must have become due, and (2) that the power of sale must have become exercisable. The power of sale, he argued, becomes exercisable on the happening of any of the following: (1) demand notice requiring payment of the mortgaged money has been served on the mortgagor and default has been made in the payment of the money, (2) some interest is in arrears and remains unpaid after becoming due, or there has been a breach of some provisions or obligation contained in the

mortgage, and (3) the action must not be statute barred, which he said happens 12 years from the date the right of action accrued. None of these, he said, was established by First Bank for the power of sale to be exercisable by it. Through his counsel Gabriel Omachi, Esq., Mr. Dareng also argued that there is a laid down procedure for a creditor to recover his debt by foreclosure where the debtor defaults in repaying his loan or fails to completely liquidate it; that he has to take out a writ of summons or originating summons and seek (1) a declaration that due to the mortgagor’s default in liquidating his indebtedness to the mortgagee, the mortgagor’s right of equity to redemption has ceased, (2) an order of Court to foreclose the mortgagor’s right of equity to redemption, (3) that where the claimant is an equitable mortgagee, he may seek a declaration that diue to the deafault of the mortgagor, he is entitled to be considered as a legal mortgagee. He also cited Ogundiani v. Araba (1978) LPELR-470/57 (SC) to say there are three ways of creating a legal mortgage and they are (1) by mere deposit of title deeds with a clear intention that the

deeds should be taken or retained as security for the loan, (2) by an agreement to create a legal mortgage, and (3) by mere equitable charge of the mortgagor’s property. He said that First Bank simply stated in its counterclaim that he deposited his title deeds over his property housing Dee Medical Centre, Bukuru, as an equitable mortgage, but he without proving the steps taken by both parties to make such an equitable mortgage as he claims is ‘clearly’ enumerated in Ogundiani v. Araba supra particularly, according to him, the first and second conditions enumerated therein. He argued that First Bank ought to give full particulars of the amount due including principal and interest and same should be easily ascertained from his statement of account or other relevant documents; the date the sum was due and date fixed for redemption; nature of security furnished for the loan; relevant covenants in the deed of mortgage, descriptions of the mortgaged property, title documents of the mortgaged property; the default giving rise to the foreclosure and steps the mortgagee has taken so far to recover his debt should all be stated. He continued to argue,

without any authority to back it up, that it is after hearing that application with those facts that the Court may foreclose the debtor or mortgagor’s right of redemption. First Bank, he submitted, failed woefully to provide the Court with any of those particulars to entitle it to the foreclosure order. He rounded up with the argument that a foreclosure order of a mortgaged property must be stamped and must be consented to by the Governor of the State, non-compliance of which will render any instrument which purports to vest in any person an instrument in the mortgaged property null and void by Sections 22 and 26 of the Land Use Act 1978. That is even as he did not even file a Respondent’s Notice as required by Order 9 of the Rules of this Court for this Court to sustain the judgment on these arguments that were not part of the reasons the lower Court gave for dismissing the counterclaim and he, Mr. Dareng, did not also state when the said statute of limitation that applied or when time actually began to run to bar First Bank’s counterclaim filed almost immediately he defaulted in complying with his undertaking in his new restructured loan

agreement with it. He said the lower Court properly evaluated the evidence and was correct in its application of the law to the facts before it so this Court should not interfere with its decision.

Resolution of issues
It appears to me that cross-respondent Mr. Dareng’s second issue, which I here rephrase slightly to read Whether the cross-appellant proved his case before the trial to be entitled to the foreclosure order it seeks, adequately reflects the kernel of First Bank’s complaints in its two grounds of cross-appeal. In fact that issue tallies with issue 2 of First Bank as cross-appellant and covers its issue 1 where it complained that the lower Court misinterpreted its Term Loan (Exhibit 11) with Cross-respondent, (Mr. Dareng). Also subsumed in that sole issue is Mr. Dareng’s own issue 2 where he argued waiver and abandonment of its pleadings by First Bank and need for us to expunge the evidence it elicited from Mr. Dareng as well as Exhibits 13 and 14 it tendered. So the issue for determination in this cross-appeal is:
Whether cross-appellant, First Bank of Nigeria Plc, proved its counterclaim before the trial Court

to be entitled to the foreclosure order it sought from it.

In providing answer to that question, I shall first consider Mr. Dereng’s argument that because First Bank did not call testimonial evidence, it is deemed to have abandoned its pleading so all the evidence it led through him, including the damning answers he gave under cross-examination, should be discountenanced by us and expunged. That argument, I hasten to say, is misconceived, for it is up to a defendant and even a counterclaimant for that matter to build his case by eliciting evidence from the plaintiff’s witnesses during cross-examination. Evidence so elicited or tendered is evidence for the defence or counterclaimant as the case may be. See Akomolafe v. Guardian Newspaper Press Ltd (2010) 3 NWLR (PT 1181) 338 @ 351 (SC), where it was said (Onnoghen, JSC, (later CJN) that:
“On the issue as to whether both parties called evidence in support of their pleadings as held by the lower Court, it is settled law that evidence elicited from a party or his witness under cross-examination which goes to support the case of the party cross-examining, constitutes evidence in support

of the case or defence of the party. If at the end of the day, the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross-examination in establishing his case or defence. In such a case, you cannot say that the party called no evidence in support of his case or defence, not evidence, as evidence elicited from his opponent under cross-examination which is in support of his case constitutes his evidence in the case. The exception is that the evidence so elicited under cross-examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the questions/issues in controversy between the parties.”
See also Ayoola v. Yahaya (2005) 7 NWLR (PT 923) 122 at 140 para. F-G (SC). Also see Fayemi v. Olorunfunmi (1998) 1 NWLR (PT 534) 523 @ 530 to 531 (CA) and Nwaenang v. Ndarake (2013) LPELR-CA/C/172/2011 where it was again stated by this Court that though a counterclaimant does not really start his case until the main claimant concludes his, he can in the course of the proceedings in the main claim ‘begin to lay foundation both in respect of his defence to the main

claim and the counterclaim,” and he does that by cross-examination of relevant witnesses of the plaintiff and by tendering necessary documents as appropriate. That is exactly what First Bank did as defendant and counterclaimant in this case at the trial when it elicited from the very mouth of Mr. Dareng facts it had averred to in paragraphs 3-8 of its statement of defence and 26 of its counterclaim that not only had Mr. Dareng exhausted both his loan and overdrafts with it, he was also heavily indebted to it and had no funds to meet the two cheques he issued on his Transaction Account No. 200671643 with it. It did not end there but also tendered, through the same Mr. Dareng two documents, Exhibits 13 and 14, which were also pleaded by it in paragraphs 16 and 28 of its statement of defence and counterclaim respectively. It is therefore misleading for Mr. Dareng to argue that First Bank intended to and did abandon its case as pleaded in its statement of defence and counterclaim. If anything, it is rather a well known fact, supported by the Evidence Act 2011 too (see Sections 83 to 130) and also Union Bank (Nig.) Ltd v. Ajagu (1990) 1 NWLR (PT 126) 328 @

339 G-H.), that evidence may be oral or documentary.
In fact, even the mere tendering of documents by a defendant through his opponent’s witnesses, I should point out, is considered so significant a step in legal proceedings that it confers on the plaintiff a right to reply generally on the case, a right he ordinarily would not have under the rules of Court if the defence had chosen not to call witnesses at all and did not also tender documents through plaintiff’s witnesses during cross-examination. See Order 37 Rules 19 and 22 of the Plateau State High Court (Civil Procedure) Rules 1987, Automatic Telephone and Elect. Co. v. Federal Rrepublic of Nigeria (1969)1 ALL N.L.R. 43 @ 48 and Union Bank (Nig.) Ltd v. Ajagu (supra) at p. 340.
In this case, it was up to First bank, having successfully established its case through documents tendered by both parties before the Court and the answers given by Mr. Dareng under cross-examination, to elect to rest its case on that of Mr. Dareng and the answers it had elicited from him in support of its defence and counterclaim or call testimonial evidence. It elected for the former. That, I repeat, does

not amount to abandoning its pleadings, contrary to the contention of Mr. Dareng.
I should not also fail to point out that, while it is the law that a claimant can only succeed on the strength of his case, it is equally settled that such a claimant, which must necessarily include a counterclaimant, is entitled to rely on any fact or evidence in the defendant’s case (in this case defendant to counterclaimant’s case) that supports his case. See Akinola v. Oluwi (1962) 1 SCNLR 351, Alao v. Ajani (1986) NWLR (PT 451) 802; Chukwueke v. Okoronkwo (1999) 1 NWLR (PT 587) 412 @ 422.

The other argument of Mr. Dareng which incidentally followed the reasoning of the trial judge is that First Bank ought to not only set out in its action full particulars of a mortgage deed but also prove creation of equitable mortgage, according to him as stated in Ogundiani v. Araba (1978) LPELR-470/57 (SC), (1978) 6-7 S.C. 55, but also the steps taken by both parties to create an equitable mortgage by his depositing his title deeds with First Bank. This argument is also a complete non-sequitur, for nowhere was it said in Ogundiani v. Araba (1978) LPELR-2330 (SC),

(1978) 6-7 S.C. 55 that a mortgagee with whom a mortgagor deposits his title documents and who takes out action to exercise his right of foreclosure must also prove that the deposit of title documents is not enough so he must prove further steps taken by parties to make such deposit of documents an equitable mortgage. Mere deposit of title documents with the mortgagee by the mortgagor without more as in this case creates equitable mortgage. That is what the apex Court (Idigbe, JSC, in lead judgment) stated in Ogundiani v. Araba at p. 21-22 LPELR when it said that:
“Equitable mortgages are created inter alia, (1) by mere deposit of title deeds with a clear intention that the deeds should be taken or retained as security for the loan; (2) by an agreement to create a legal mortgage and (3) by mere equitable charge of the mortgagor’s property.” (Italics mine)
Cross-respondent chose the first of these three different methods of creating equitable mortgage by depositing his title deeds with First Bank as security for the loan he obtained from it and confirmed that fact in paragraph 6 of his statement of claim, saying:

The plaintiff avers that both the overdraft and the loan stated in paragraph 5 above were secured with PERSONAL GUARANTEE of the plaintiff executed on FBN FORM 3042 wherein he deposited the title documents over his property housing Dee Medical Centre along Buruku Express Way, Buruku, valued for over ₦1,000,000,000.00 (One Billion Naira only) and another (5) bedroom bungalow with boys quarters at Dogon Dutse, Jos also valued for over ₦100,000,000.00 (One Hundred Million Naira only) as a backing of his personal guarantee of the plaintiff for the facility.
That settles it. It was therefore an indulgence in perversity for the trial Court to confuse this simple mode of creation of equitable mortgage by deposit of title documents by mortgagor as security for the loan and overdraft with the separate and different method of creating equitable mortgage by agreement to create a legal mortgage, or even a legal mortgage with terms of the mortgage stated in it. By the mode of creation of equitable mortgage chosen by the parties by mere deposit of title documents, there was not, as Mr. Shaibu correctly pointed out, any such mortgage document with terms spelt out in it

for First Bank to prove its non-observance before enforcing its right of foreclosure.

Mr. Shaibu for First Bank was also correct when he submitted rather brusquely that the true nature of the mortgage transaction between the two parties was simply something close to “Pay your debt or your property is sold.” That position is further reinforced by the Term Loan Restructure Agreement (Exhibit 11) dated July 14, 2015, which cross-respondent and his wife signed with First Bank. That document, Exhibit 11, bears the following caption:
OFFER LETTER OF CREDIT FACILITY – TERM LOAN RESTRUCTURED OF SECURED OVERDRAFT OF FOURTEEN MILLION SEVEN HUNDRED AND SEVENTY EIGHT THOUSAND ONLY (₦14,778,000.00).
It then went to state as follows among others:
“We refer to your application for a credit facility and are pleased to advise approval of same under the following terms and conditions.
Lender: First Bank of Nigeria Ltd (or the Bank)
Borrower: Dramatist International Company.
Facility Types: Term Loan – Restructured of Existing Facilities.
Facility Amount: ₦14,778,000.00 (Fourteen Million Seven Hundred and

Seventy Eight thousand Naira only)
Purpose: Working Capital
Tenor: 20 Months (with three months moratorium)
Expiry Date: 28/05/2017
Moratorium: Nil
This document clearly shows on its face that it only restructured an existing loan and overdraft owed First Bank by Mr. Dareng which Mr. Dareng was finding difficulty in repayment. It was simply aimed at making it easier for him to repay that existing debt. It never purported to give Mr. Dareng a fresh loan of ₦14,778,000.00 or any other amount for that matter as stated, erroneously, by the trial judge when he said in his judgment at p.191 of the records that “by reason of this, the claim by PW1 in his evidence that the amount offered in Exhibit 11 was never credited into the said account, Exhibit 10, was never challenged.” By that statement the trial judge was virtually re-writing Exhibit 11 for the parties and deciding the case outside their agreement and the terms of Exhibit 11 he was purportedly interpreting. That is a power neither the Court nor Mr. Dareng has. When a contract has been reduced to the form of a document (as in this case with Exhibit 11) no evidence of its

terms except the document itself, or secondary evidence of its contents in cases in which secondary evidence of is admissible under the Evidence Act 2011, nor may the contents of any such contract be contradicted, altered, added to varied by oral evidence. See Section 128(1) of the Evidence Act 2011. Mr. Dareng who signed Exhibit 11 that does not contain any obligation on First Bank to credit his account with any fresh funds cannot be allowed to vary Exhibit 11 in the manner he is purported to have done by the trial judge and neither is the trial judge allowed to rely on such strained interpretation by Mr Dareng.

At any rate, a party has no duty to challenge evidence that the Evidence Act has clearly made inadmissible and so should not have even been allowed to be given in the first place.

In sum, the lower Court was wrong in the way it went about deciding the counterclaim of First Bank, cross-appellant herein. It took into account matters which it ought to discountenance and failed to take into account matters it ought to have countenanced. It failed to evaluate the evidence in respect of the counterclaim properly. This Court is therefore entitled and

in fact bound to intervene.

Now, it has been shown, while considering the main appeal, that cross-respondent testifying as P.W.1 admitted, expressly, that he was in default of repayment of his debt to First Bank for which he deposited the title documents of his two properties as mortgage. He admitted that he was unable to make repayment even when the debt was restructured for him by the terms of Exhibit 11. He said so with his own mouth that:
“I am owing First Bank Plc the money I took from them; I confirm that. It is correct; I have not repaid the money. ….. It is true that because I could not repay the loan, the bank restructure the repayment for my commitment in Exhibit 11.”

In those circumstances and following the expiration of the tenor of the said Restructure Agreement (Exhibit 11) on 28/5/2017, First Bank’s right to sue for foreclosure of the equitable mortgage arose automatically. That much the apex Court in the very same case of Ogundiani v. Araba (1978) LPELR-2330 (SC), (1978) 6-7 S.C. 55 cited by Mr. Omachi for Mr. Dareng made clear when it (Idigbe, J.S.C.) said at p.24 LPELR that:

“It should be borne in mind that the general rule is that foreclosure (and not sale) is the proper remedy of the equitable mortgagee (see James v. James (1873) L.R. 16 E.153 citing with approval Pryce v. Bury at 154), and when an equitable mortgagee by deposit of title deeds and agreement to give a legal mortgage if called upon to do so takes foreclosure proceedings to enforce his security, the Court usually decrees that in default of payment due under the mortgage the mortgagor is trustee of the legal estate for the mortgagee and that he must convey that estate to him. (See Marshall v. Shrewsbury (1875) 10 Ch. App. 250 @ 254).”

For all the reasons here stated, I hold that cross-appellant, First Bank of Nigeria Plc, proved its counterclaim against cross-respondent before the trial High Court of Plateau State and that Court was wrong in holding otherwise and dismissing its counterclaim. There is therefore merit in this appeal which is hereby allowed and the decision of the High Court of Plateau State dismissing cross-appellant First Bank’s counterclaim against the cross-respondent Mr. Dareng is hereby set aside. In its stead, I hereby make an order granting

the counterclaim of First Bank of Nigeria Plc against the cross-respondent, Mr. Bulus Pam Dareng doing business under the name and style of Darmartist International Company. Accordingly it is hereby specifically ordered that:
An order is hereby made foreclosing the equitable mortgage over the property of the plaintiff Mr. Bulus Pam Dareng deposited with the First Bank covering Dee Medical Centre Bukuru.

Costs of this appeal are fixed at ₦100,000.00 in favour of cross-appellant, First Bank of Nigeria Plc, against the cross-respondent.

TANI YUSUF HASSAN, J.C.A.: I am in agreement with my lord, BOLOUKUROMO MOSES UGO, JCA in the reasoning and conclusion in this appeal. I also abide by the orders made therein.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading before now the judgments in both the main appeal and the cross appeal – just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA.

I agree with his reasoning and conclusions arrived thereat in both judgments.

Permit me to add, in order to strengthen the conclusion reached in the cross appeal that the trial Court was wrong in dismissing the counter claim by the Respondent counter claimant. His reasons constitutes a clear act of misconception and which in a way tends to rewrite the terms of the agreement between the parties and which is a forbidden fruit for the Courts to taste. It is trite that where the terms of the contract are clear and unambigious, the duty of the Court is to give effect to them and on no account rewrite the contract for the parties. Put in another way, where the terms of the agreement is clear and unambigious, a Court of law must give strength to the plain and bare words without any hesitation. See JFS INV. LTD v. BRAWAL LINE LTD (2020) 12 SC (Pt.1) P. 110 at 162, METIBAIYE v. HARELLI INT. LTD (2009) 16 NWLR (Pt. 1167) pg. 326 at pg. 349, AMEDE v. UBA (2008) 8 NWLR (Pt.1090) pg. 623 at 659-660.

For the forgoing and fuller reasonings contained in the lead judgments, I also dismiss the main appeal and allow the cross appeal.
I abide by the consequential orders made therein.

Appearances:

Gabriel Omachi, Esq., with him, Miss G. U. Ronku and A. L. Bitrus, Esq. For Appellant(s)

O. Shaibu, Esq., with him, B. M. Ndam, Esq. and Bala Akor, Esq. For Respondent(s)