ECOBANK (NIG) LTD v. EMMANUEL
(2022)LCN/16404(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/247/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
ECOBANK NIGERIA LIMITED APPELANT(S)
And
CHIGBU NNAMDI EMMANUEL RESPONDENT(S)
RATIO:
PARTIES AS WELL AS COURT ARE BOUND BY THE PLEADINGS
The trite position of the law is that parties as well as the Court are bound by the pleadings. Therefore, it is not open to a Court to violate the pleadings of the parties and make a case for contrary to their pleadings. See Adeleke vs. Iyanda (2001) 13 NWLR (Pt. 729) 1 SC, Adeniran vs. Alao (2001) 18 NWLR (Pt. 745) 361 SC, Buhari vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1 SC, Ukaegbu vs. Ugoji (1991) 6 NWLR (Pt. 196) 127 SC, E.D. Tsokwa& Sons Co. Ltd vs. U.B.N Ltd (1996) 10 NWLR (Pt. 478) 281 SC, Makinde vs. Akinwale (2000) 1 SC 98. MOJEED ADEKUNLE OWOADE, J.C.A
MATTERS THAT ARE TO BE RELIED UPON MUST BE PLEADED
Matters that are to be relied upon and which form part of the issue in controversy must be pleaded clearly in order to avoid taking the opponent by surprise. Any fact that emerges from matters that are not pleaded goes to no issue and should be discountenanced. See Philips v. E.O.C & Ind. Co. Ltd (2013) 1 NWLR (Pt. 1336) 618. In this instant case, Exhibit 15 which was relied upon by the Appellant as the Respondent’s statement of account and which was used as the basis for the claim in the suit was not pleaded. The said Exhibit 15 goes to no issue and trial Court rightly discountenanced same. ABUBAKAR MAHMUD TALBA, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court delivered by Hon. Justice M.L. Mohammed on 4/11/2016.
The Appellant as Plaintiff brought this suit against the Respondent Defendant by a writ of summons and statement of claim of 7/04/2014. The claim of the Appellant as Plaintiff could be found in paragraph 16 of the statement of claim to wit:
“WHEREOF the plaintiff claims against the defendant as follow:-
(a) The sum of N17,992,815.88 (Seventeen Million, Nine Hundred and Ninety–Two Thousand, Eight Hundred and Fifteen Naira and Eighty–Eight kobo only), being the debit balance on the defendant’s current account No. 3842022684 arising from a loan facility granted the defendant at his request by the plaintiff on January 6th, 2009.
(b) Interest on the said sum of N17,992,815.88 (Seventeen Million, Nine Hundred and Ninety–Two thousand, Eight Hundred and Fifteen Naira and Eighty–Eight Kobo only), at the rate of 25% per annum with effect from March 2nd, 2014 until the final liquidation of the debt.
(c) The cost of this action, including plaintiff’s solicitor’s commission of 10% and filing fees.”
Some other crucial averments in the statement of claim of the Appellant which led to the summed-up claim in paragraph 16 of the Appellant’s statement of claim are paragraphs 3, 13, 14, and 15, of the statement of claim reproduced thus:
“(3) Following the said reforms, the then Oceanic Bank International Plc (now defunct), was acquired and taken over by the plaintiff, by reason of which acquisition and take over, all the assets and liabilities of the said Oceanic Bank International Plc, including all its accounts and businesses, including the transaction with the defendant became vested in the plaintiff and is deemed to have been done directly with the plaintiff.
(13) The plaintiff avers that the defendant consistently made ridiculous, inconsistent and contradictory proposals, but never paid any kobo into his account towards the settlement of the debt, such that as at 31st January 2014, the total indebtedness of the defendant to the plaintiff stood at N17,992,815.88 (Seventeen Million, Nine hundred and Ninety Two thousand, Eight hundred and Fifteen naira and Eighty-Eight kobo only). Plaintiff shall rely on the defendant’s statement of account number 3842022684 as at 1st day of March, 2014 at the hearing of this suit.
(14) The lending interest rate which was 22% per annum at the time of this transaction now stands at 25% per annum.
(15) The plaintiff avers that the defendant has no defence whatsoever to its claim.”
It is interesting that while the Appellant Plaintiff avers that the Respondent/Defendant has no defence whatsoever to its claim; the Respondent/Defendant avers in paragraph 11 that he has a good defence and thereafter denies the Plaintiff’s claims.
By paragraphs 11 and 12 of the statement of defence, the Respondent/Defendant denies Appellant’s claims and avers:
“11. The defendant avers that he has good defence to the plaintiff’s suit since he does not owe the plaintiff the said amount of N17,992,815.88 claimed.
12. The defendant in so denying the plaintiff’s claim avers as follows:
(a) The plaintiff used a wrong interest rate of 22% and 25% against the 18% agreed to compute the defendant’s indebtedness bringing it to a bloated sum of N17,992,815.88 from the initial loan sum of N5,000,000.00 even after the defendant made some repayments.
(b) The interest rate in plaintiff’s Exhibit 2, page 2 is 22%, while the interest rate in Exhibit 15 i.e. the Statement of Account is 18%.
(c) The plaintiff never notified the defendant of any change in interest rate charges before applying same.
(d) All pages subsequent to P.1 of Exhibit 2 annexed to the writ are not part of Exhibit 2, Exhibit 2 is a one page document i.e. 1 of 1, the other pages do not form part of the loan agreement/terms.
(e) That plaintiff’s statement of account alleged to belong to the defendant is not correct. The said S/Account i.e. Exhibit 15, pages 1–6 is not the defendant’s S/Account with the plaintiff, the Account Number there is 003460862, while the defendant’s Account Number with ECOBANK NIGERIA PLC (not plaintiff) is 3842022684, as pleaded in para. 2 of the Statement of Claim. The defendant therefore denies all the figures/computation therein.
(f) That the Banking practice is that on lending a customer money, the Bank opens a loan Account for him separate from the main Account where the loan repayment schedule is entered.
(g) By the said Banking practice, loans are repaid by debiting the main customer’s (Borrower) Account and crediting the sums to the loan Account until the loan is liquidated, i.e. bringing the balance on the loan Account to Nil (zero). The accrued interest is also moved from the main Account to the Bank’s special Account (personal) called in Banking parlance ‘P & L’ Account, i.e. where the bank’s profit on the transaction is kept.
(h) The Bank (i.e. ECOBANK NIGERIA PLC, NOT THE PLAINTIFF) followed the same process in this loan transaction with the defendant, the balance due on the loan account is what the Bank is entitled to claim as unrepaid and not the balance on the Main Account as the Plaintiff is doing in this suit.
(i) The balance in the main Account that the Plaintiff is claiming is erroneous since the defendant did not take an overdraft but a loan which is chargeable on the loan Account.
(j) The plaintiff has not shown the plaintiff or the Court the loan Account Statement to determine the balance due therein.
(k) The plaintiff’s S/Account, EXHIBIT 15 is full or arbitrary/hidden charges not based on the 18% interest rate agreed and therefore contains erroneous calculations premised on wrong mathematical formula.”
At the trial, one Charles Okoli witnessed for the Appellant Plaintiff as PW1 while the Respondent Defendant testified in person as DW1.
The learned trial Judge reviewed the evidence of the parties and in dismissing the Appellant’s Plaintiff’s claims held as follows. First at pages 230–231 of records that:
“In action for recovery of loan advanced by a bank to its customer, the Court is required to firstly establish whether the banker granted the customer a loan, if so, how much, the interest agreed upon and how much, if any, has the customer paid out of the loan? I refer to the case of F.B.N PLC VS. OBEYA (1998) 2 NWLR PT. 537 Pg. 205.
In the instant suit, it is not in dispute that the plaintiff granted the defendant a loan of N5 million and the defendant was said to have repaid a total sum of N1,140,000. I refer to exhibit 9. So the dispute here, only relates to the interest rate.
In the case of AFRICAN INTERNATIONAL BANK LTD VS. INTEGRATED DIMENSIONAL SYSTEM LTD AND ORS (2012) 5 SCNJ pg 221 Per O. ARIWOOLA JSC, it was held;
“The Court below also held that not only was the appellant not entitled to charge interest at the agreed rate as awarded by the trial Court, upon the expiration of the facility, it was only entitled to damages for delayed payment. And that these damages were to be awarded at the discretion of the Court….”
Second, at pages 231 – 232 of records that:
PW1 said as at 2009–2014, about 4 years, the interest accrued is more that N6 million, the facility was given at the interest rate of 5% per annum for 6 months.
The plaintiff also said between 2009–2013, the plaintiff was charging interest rate between 30 and 35% per annum because the customer had defaulted.
Yet and still under cross-examination PW1 said they did not notify the customer about their intention to increase the interest rate in any of their documents pleaded before this Court.
Exhibit A2 which is caption; Re: Request for personal loan of N5,000,000.00 dated January 6th, 2009 spelt out the operative and binding conditions towards the modus – operandi of the said loan agreed which binds the parties and pg. 2 of same read thus;
“Interest Rate: 22% per annum but subject to a, b, and c immediately below;
(a) The bank reserves the right to review the interest rate in accordance with the prevailing money market conditions and shall notify the customer accordingly.”
This the plaintiff refused, omitted and neglected to do and I refer to the testimony of PW1 under cross-examination.”
And concluded at page 232 of records thus:
“So from all the evidence adduced before this Court and all the materials placed before it by all the parties in this suit, this Court finds and so hold that the plaintiff has failed to prove its case against the defendant on the balance of probabilities and on the preponderance of evidence and this Court hereby dismisses the plaintiff’s claim against the defendant in its entirety.”
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing three (3) grounds of appeal in this Court on 5-2-2018.
The relevant briefs of Argument for the appeal are:
1. Appellant’s brief of Argument which was filed on 11-06-2018. It is settled by G.G. Edalu Esq.
2. Respondent’s brief of Argument which was filed on 27-3-2019 but was deemed filed on 22-5-2019.
Learned counsel for the Appellant nominated three (3) issues for determination of the appeal. They are:
“i. Whether the Appellant succeeded in proving its case upon the sufficient materials placed before the lower Court.
ii. Whether the Appellant is entitled to charge interest on the said loan.
iii. Whether the lower Court should not have granted the claim of the Appellant for the balance of the Principal sum, if the interest claimed was not proved.”
Learned counsel for the Respondent formulated a sole issue for determination of the appeal. It is:
“Whether the Appellant proved its case in the lower Court.”
On issue 1, learned counsel for the Appellant submitted that the claim of the Appellant was/is for the sum of N17,992,815.88, been cumulatively, the principal plus interest on the loan agreement between the parties from 2009 when the loan crystalized to 2014 when this suit was instituted.
He submitted that exhibits admitted in evidence clearly show the transaction between the parties particularly Exhibit A2 the loan Agreement (Re-request for personal loan of N5 Million) and Exhibit A15 (the statement of account/transaction inquiry of the Respondent).
He noted that Exhibit A2 is the soul of the transaction (loan) between the parties and the terms and conditions voluntarily accepted and entered into by the Respondent are therein contained.
He referred to the provision of Section 128 of the Evidence Act 2011 and the cases of Bunge vs. Governor of Rivers State (2006) 12 NWLR (Pt. 995) 573 at 616–617 and Larmie vs. DPM Services Ltd (2005) 18 NWLR (Pt. 958) 438 and submitted that no oral evidence can be used to alter or contradict the content of a document or documentary evidence.
He submitted that it is not in dispute that the loan sum of N5 Million Naira was granted to the Respondent. It is also not in dispute that the sum of N1,140,000 had been paid as at 07/04/2010 by the Respondent, leaving a balance as at that date of N5,909,532.16, as accrued interest plus principal sum owing to failure of Respondent to pay the agreed monthly instalments.
The loan sum not being in dispute, said counsel, the contentious issue was/is the interest charged on the loan.
He submitted that the Court below ought in the first instance to have given judgment in favour of the Appellant for the loan principal sum of N5 Million (N5,000,000) less the N1,140,000 paid by the Respondent which is N3,860,000 same not being disputed while the Appellant goes on to prove its case for the interests or how the interest accumulated over time.
He submitted that Exhibit A2 clearly shows the rate at which the loan was charged – i.e 22% at page 2 of Exhibit A2, which was also confirmed by the Respondent under cross-examination and in his pleadings and thus the lower Court should not have derogated from, the Respondent having admitted same in his pleadings. However, at page 1 of exhibit A15, the Appellant had graciously charged 18% on the loan for the 6 month period only. (page 1, lines 4, dated 12/01/2009).
That the Respondent however failed to fulfill the loan agreement by refusing to pay the monthly instalment sums which gave rise to the compounding interest growth. More soupon default and at expiration of the loan terms, it was only natural for the agreed penalties and interest to be charged. (page 2, lines 4 and page 3, lines 4 respectively of exhibit A2).
He submitted that 22% of the loan when calculated even at simple interest formulae as argued by the Respondent at the lower Court will amount to over N13,000,000 (thirteen million naira) for the period between 2009 and 2014 before commencement of the action at the lower Court. However, bank interests on personal loans are not calculated based on simple interest formulae and parties never contemplated or agreed that same be calculated as such. Thus, the Respondent can not base his interest on simple interest calculated formulae and the lower Court ought not to have considered that line of argument for the Respondent.
Further, said counsel, at page 3 clause 4 parties agreed that a default interest of 1% shall be charged monthly upon failure of Respondent to repay the loan.
He submitted that 1% default interest for 12 months will equal 12% per annum and when added to the 22% per annum rate agreed to be charged on the loan, will amount in total, to 34% charged as interest when Respondent defaulted in repayment of the loan within the prescribed time frame.
The above were never challenged and again the Respondent cannot be heard at trial to deny or reject the clauses in Exhibit A2 or even raise complaints, therein.
He reasoned that PW1 was accurate when he stated that the Respondent upon default was charged between 30 and 35% interest. This was simply in compliance with the provisions or clauses already agreed by parties and accepted by the Respondent, appending his signature thereto.
He submitted that from the totality of evidence placed before the Court both principal and interest, were successfully proved.
Learned counsel for the Appellant further submitted that while the Respondent at the lower Court denied. Exhibit A15, based on change in his Account number, to which explanation for change was averred to in the Appellant’s Statement of Claim before the lower Court, to be resultant of the acquisition of the defunct Oceanic Bank by the Appellant and the Central Bank of Nigeria Banking reforms within that period; that aside the Account number, the transaction contained therein were never denied by the Respondent, including his cumulative N1,140,000 paid to the Appellant.
Again, said counsel Exhibit A15, clearly shows on a month-by-month basis how the loan granted in 2009 grew, upon failure by Respondent to pay back at expiration, to over N17 million by 2014, immediately before the institution of this suit at the lower Court and this was never challenged by the Respondent.
He concluded issue 1 that the Respondent cannot be heard to deny Exhibit A15 and the Court ought to effect the content therein, the Respondent having failed to state other proper or different rate from that charged in Exhibit A15 amounting to the several monthly sums therein.
Learned counsel for the Respondent opened up on issue 1 by stating trite position of the law that he who asserts must prove and that the Plaintiff in a civil suit has the primary burden of proving his case on a balance of probabilities and on preponderance of evidence.
He referred to the provision of Section 133 of the Evidence Act and the cases of Bank of the North Ltd vs. Oniyo (2002) FWLR (Pt. 129) P. 1452 at 1503, G. Chitex Ind. Ltd vs. Oceanic Bank Int. (Nig.) Ltd. (2005) All FWLR (Pt. 276) 610 at 624.
He submitted further that a Plaintiff will succeed only on the strength of his own case and not on the weakness of the defence.
He referred to the case of Klifco (Nig.) Ltd vs. N.S.I.T.F.M.B (2005) All FWLR (Pt. 288) 1209 at 1217.
He submitted that the Appellant had stated in its statement of claim and evidence i.e. their deposition on oath that the Respondent was their customer who maintained account No. 1781006468 which later became account No. 3842022684 after the banking reforms.
However, the Appellant’s claim as constituted was based on a strange document it introduced which was marked Exhibit ‘15’, a purported statement of account with account No. 003460862 bearing a total sum of N17,992,815.88.
He submitted that Exhibit ‘15’ with the said statement of account No. 003460862 was not pleaded, what is more Exhibit 15 was denied by the Respondent.
He submitted that the figures and computation arrived at in Exhibit ‘15’ claimed by the Appellant do not appertain to the Respondent. Moreover, said counsel, Exhibits 8–14 did not bear any account number to link the Appellant with the said strange statement of account number 0803460862. The Respondent therefore denies and disowns statement of account No. 003460862 and the figures contained therein.
Learned counsel for the Respondent referred to the case of Habib (Nig.) Bank Ltd vs. Gifts Unique Nig. Ltd (2005) All FWLR (Pt. 241) 234 at 258 to say that a statement of account is not sufficient proof of liability of a customer, the banker must go further to prove the customer’s liability on a preponderance of evidence.
Learned counsel for the Respondent submitted further that assuming but not conceding that Exhibit 15 belongs to him, the Appellant used a wrong interest rate of 22% and 25% instead of 18% agreed to compute the indebtedness which engendered the bloated sum of N17,992,815.88 claimed as at 1/3/14. Exhibit ‘15’ in the column dated 12-01-2009 shows 18% as the interest rate but that the Appellant used 22% and subsequently 25% per annum for the computation.
There is nothing before the trial Court, said counsel to show that the Respondent was notified of his change of interest rate or that same was done with his agreement/consent.
He submitted that a party to an agreement cannot unilaterally change the terms and failure of a Bank to notify a customer of a variation of interest rate makes the change/variation ineffective.
On this, counsel referred to the case of Bank of the North vs. Oniyo (2002) FWLR (Pt. 129) 1492 at 1507.
Curiously, learned counsel for the Respondent submitted further that the correct interest agreed between the parties was 18% per annum as shown in Exhibit ‘15’ and not 22% as shown on the 2nd page of Exhibit 2 on page 15 of the records. This he said is because the 2nd page of Exhibit 2 is not the correct page that page 1 of Exhibit shows on top of the page that the page is only one sheet by the indication of 1 of ‘1’, consequently all pages subsequent to page ‘1’ of Exhibit ‘2’ are not part of Exhibit 2.
Learned counsel for the Respondent submitted that the Appellant’s paragraph 13 of the statement of claim to the effect that the Respondent had not paid any kobo out of the N5,000,000.00 (page 5 of records) is clearly untrue. That, the Respondent’s former solicitor M. Chikezie & Co. in Exhibit 9 (page 33 of the records) had stated in the second paragraph of his letter dated 29/4/13 that the Respondent had repaid N1,140,000.00 out of N5,000,000.00.
The Respondent contends further that from Appellant’s Exhibit 8 (page 31 of the records) the balance stood at approximately N11.9 Million as at 25/2/13 and within one year the balance came up to N17,992,815.88 at 28/2/14 (page 47 of records).
That if N11.9 Million is subtracted from N17.9 Million, it equals to N6 Million. This said counsel, clearly shows that the Appellant was charging more than 50% interest per annum against the agreed 18% interest per annum.
He urged us to hold that the Appellant did not prove its case and that the Court below was justified in dismissing the case.
There are two aspects to Appellant’s issue 1. The first is the Appellant’s contention that in the absence of a dispute between the parties as to the loan of N5,000,000.00 taken by the Respondent from the Appellant less the N1,140,000 agreed to have been paid by the Respondent, the trial Court ought to have at least given judgment to the Appellant on the admitted and undisputed sum of N3,860,000.
The second leg of the Appellant’s issue 1 is the attempt by the Appellant to re-open here on appeal the same facts which led the Appellant to lack of proof of the accumulated interests charged on the Respondent’s loan in the Court below. The fundamental defect in the Appellant’s case in the lower Court especially as regards proof of chargeable and/or accrued interests on the Respondent’s loan is not just the variation of the terms of agreement by increased interest rates and indeed not just the lack of notification of variation of interest rates to the Respondent but the fact that there are serious contradictions in between the pleadings and the evidence of the Appellant Plaintiff.
Paragraph 2 of the Appellant’s statement of claim maintained that the Respondent’s current account No. 1781001006468 at the defunct Oceanic Bank International Plc later became account number 3842022684 as a result of the banking reforms introduced by the Central Bank of Nigeria and the transition from Oceanic Bank International Plc to Ecobank Nig. Ltd.
Unfortunately in an attempt to prove its case against the Respondent, the Appellant utilized Exhibit 15 as the Respondent’s statement of account detailing the Respondent’s indebtedness therein. The said Exhibit 15 however stated the Respondent’s account number as account No. 003460862. By this, the said Exhibit 15 which was used to compute the Respondent’s account and used as the basis for the claim in the suit does not appertain to the Respondent, it was not pleaded, it runs contrary to extant pleadings and consequently goes to no issue.
The trite position of the law is that parties as well as the Court are bound by the pleadings. Therefore, it is not open to a Court to violate the pleadings of the parties and make a case for contrary to their pleadings. See Adeleke vs. Iyanda (2001) 13 NWLR (Pt. 729) 1 SC, Adeniran vs. Alao (2001) 18 NWLR (Pt. 745) 361 SC, Buhari vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1 SC, Ukaegbu vs. Ugoji (1991) 6 NWLR (Pt. 196) 127 SC, E.D. Tsokwa & Sons Co. Ltd vs. U.B.N Ltd (1996) 10 NWLR (Pt. 478) 281 SC, Makinde vs. Akinwale (2000) 1 SC 98.
By the foregoing, the learned trial Judge was right consequent on the absence of pleading of Exhibit 15 and the contradiction in between pleading and evidence especially in between paragraph 2 of the Appellant’s statement of claim and the unpleaded reliance on Exhibit 15 in evidence to have held that the Appellant did not prove the interest charged on the loan granted to the Respondent.
Conversely, the learned trial Judge would have found for the Appellant on the admitted and undisputed claim of the balance of N3,860,000 of the principal sum claimed by the Appellant. This is first, because that which is admitted needs no further proof. See Egbunike & Anor vs. A.C.B Ltd (1995) 2 SCNJ 58.
In other words, when a fact is pleaded by the Plaintiff and admitted by the defendant evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted. See Bunge vs. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573 SC, Okparaeke vs. Egbuonu (1941) 7 WACA.
By, paragraph 9 of the Respondent’s statement of claim the Respondent Defendant avers and gave evidence that:
“The defendant in answer to paragraph 6 of the statement of claim, categorically denies abandoning the Account, the defendant continued transaction on the Account, and had repaid a total sum of N1,140,000 at a stage as shown in former defendant’s solicitor letter dated 29-4-13 to the Plaintiff’s solicitor i.e. Exhibit 9 annexed by the Plaintiff to the writ.”
By reason of the above admission equally noted by the learned trial Judge, the Respondent was entitled to judgment at least on the admitted and undisputed balance of the money loaned to him by the Appellant.
On this score, Appellant’s issue 1 is partly resolved in favour of the Appellant and partly resolved in favour of the Respondent.
In relation to Appellant’s issue 2, learned counsel for the Appellant referred to a number of cases to demonstrate that the Appellant is entitled to charge interest by virtue of the loan agreement between it and the Respondent and urge us to resolve issue 2 in favour of the Appellant.
I adopt my decision on issue 1 in the resolution of issue 2. The question in this appeal is not whether or not the Appellant could charge interest as agreed as now suggested by the Appellant in issue 2 but whether the Appellant was able to prove the interest charged on preponderance of evidence.
In the circumstances of the case, the Appellant proved nothing because there was serious conflict between its pleadings and evidence.
Issue 2 is resolved against the Appellant.
Appellant’s issue 3 has already been answered in the positive in the treatment of issue 1 and it is accordingly resolved in favour of the Appellant.
The Appellant in this appeal nominated three issues. The issues are repetitive as the substance of the appeal was covered by issue 1.
In any event issue 1 is resolved partly in favour of the Appellant and partly in favour of the Respondent. Issue 2 is resolved against the Appellant, while issue 3 is resolved in favour of the Appellant.
The consequence of issue 1 being partly resolved in favour of the Appellant and issue 3 resolved in favour of the Appellant is that the appeal is allowed in part. The judgment and orders of M.L. Mohammed J. of the Kaduna State High Court delivered on 4-11-2016 in suit No. KDH/KAD/306/2014 are hereby set aside.
Instead, I now make an order granting the admitted and undisputed balance of the loan granted to the Respondent that is principal sumof N5,000,000.00 less the N1,140,000 paid by the Respondent which is N3,860,000 as judgment sum in favour of the Appellant.
(b) Interest on the said sum of N3,860,000 (Three Million, Eight Hundred and Sixty Thousand Naira only) at the rate of 10% per annum until the final liquidation of the judgment sum.
Parties to this appeal shall bear their respective costs.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the honour and privilege of reading in draft form, the judgment just delivered by my learned brother, M. A. Owoade, PJCA. My learned brother in the lead judgment thoroughly and painstakingly analysed and reviewed the facts as pleaded by the parties and the evidence (oral and documentary) that were adduced in support thereof and reached the decision that this appeal succeeds in part. My brother in the lead judgment properly issued an order on the undisputed balance of overdraft facility obtained by the Respondent from the Appellant on 6/1/2009. I also adopt as mine the finding of my learned brother and abide by the order as to costs.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother MOJEED A. OWOADE, JCA. I agree in toto the reasoning and conclusion that the appeal succeeds in part. It is settled law that parties as well as the Court are bound by the pleadings. The Court must confine itself to the case presented by parties. The Court is not allowed to go on a wild goose chase. See Okochukwu v. A. G. River State (2012) 6 NWLR (Pt. 1324) 53; Orizu v. Anyaegbunam (1978) 5 SC 21 and African Continental Seaways v. N.D.R.G.W Ltd (1977) 5 SC 235.
Matters that are to be relied upon and which form part of the issue in controversy must be pleaded clearly in order to avoid taking the opponent by surprise. Any fact that emerges from matters that are not pleaded goes to no issue and should be discountenanced. See Philips v. E.O.C & Ind. Co. Ltd (2013) 1 NWLR (Pt. 1336) 618. In this instant case, Exhibit 15 which was relied upon by the Appellant as the Respondent’s statement of account and which was used as the basis for the claim in the suit was not pleaded. The said Exhibit 15 goes to no issue and trial Court rightly discountenanced same.
However, there is an undisputed claim which was admitted by the Respondent that is the sum ofN5,000,000.00 less the sum of N1,140,000.00 paid by the Respondent living a balance of N3,860,000.00. It is settled law that facts admitted need no further proof. Where there is an admission in the pleadings of any party that admission must be accepted without further proof. See Oceanic Bank Int’l Plc v. C.S.S. Ltd (2012) 9 NWLR (Pt. 1305) 397 and Obmiami & Store (Nig) Ltd v. A.C.B Ltd (1992) 3 NWLR 372. An admission by a party of part of the claim of the adverse party entitles the Court to grant part of the claim admitted. See Oceanic Bank Int’l Plc v. C.S.S Ltd (Supra) and Jeric Nig. Ltd v. Union Bank of Nig Plc (2000) 15 NWLR (Pt. 601) 447. The learned trial Judge having noted the above admission, he should have granted same in favour of the Appellant.
In consequence thereof, the appeal having succeeded in part, I abide by the consequential order(s) in the leading judgment.
Appearances:
M.I.C EDEGWARE, ESQ. For Appellant(s)
D.I. AUDU, ESQ. For Respondent(s)
