F.B.N PLC & ANOR v. ADEOSUN BUSINESS INVESTMENTS LTD & ORS (2020)

F.B.N PLC & ANOR v. ADEOSUN BUSINESS INVESTMENTS LTD & ORS

(2020)LCN/14600(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Wednesday, September 16, 2020

CA/AK/14/2016

RATIO

PLEADINGS: THE NATURE AND SCOPE OF THE RELATIONSHIP BETWEEN BANKER AND ITS CUSTOMER, WHERE AN ALLEGATION OF FRAUD IS MADE IN A CIVIL CASE, IT MUST BE PLEADED WITH PARTICULARS AND PROVED ‘BEYOND REASONABLE DOUBT’ AND TYPE OF EVIDENCE.

The nature and scope of the relationship between banker and its customer has been stated in many authorities, one of which is U.B.A. PLC V G.S. IND. LTD (2011) 8 NWLR (PT. 1248) 590 AT 577. See also STANDARD TRUST BANK LTD V ANUMNU (2008) 14 NWLR (pt. 1106) 125. The law is settled that where an allegation of fraud is made in a civil case, it must be pleaded with particulars and proved ‘beyond reasonable doubt’. See S.135 of the Evidence Act, 2011 and the cases of OLALOMI IND LTD V N.I.B. LTD (2009) 16 NWLR (pt.1167) 266 at 287 paras. B-D and OTUKPO V JOHN (2012) 7 NWLR (pt. 1299) 357 at 382-383 paras. C-B where the Supreme Court inter-alia held that ‘Fraud has to be pleaded with particulars and establish in evidence’…
See also the provisions of Section 138 (1), (2) and (3) of the Evidence Act, 2011 (as amended) and the case of ANYAWU V UZAWUAKA (2009) 13 NWLR (pt. 1159) 445 at 475 paras. A-C. I saw on record that the Respondents copiously pleaded the allegation of fraud with particulars in para. 43 of the Amended Statement of Claim and paras. 8 and 9 of the Consequential Reply to the Amended Statement of Defence. There are evidence on record in support of the pleadings which were uncontroverted and/or contradicted. The evidence adduced by the Respondents before the lower Court were both oral and documentary admitted in evidence without objection from the Appellants at the trial.
The law is trite that where a party asserts the positive and the other asserts the negative, the initial burden is on the party who asserts the positive to prove his assertion. In this appeal, from the Record, the Respondents had denied issuing two cheques fraudulently used in withdrawal of the total sum of N3, 464, 000. 00 from their accounts with the Appellants. Both oral and documentary evidence as shown on record were led in proof of the assertion. The onus of disproving that assertion shifted on the Appellants by cogent and convincing evidence to show that the Respondents issued, authorised, signed and confirmed the two cheques for withdrawal in favour of those allegedly paid money. Nothing in the Record of Appeal indicating any effort made by the Appellants as Defendants at the Lower Court to tender the cheques in evidence even though pleaded by them in their statement of Defence. This resulted to a serious failure on the part of the Appellants who had the custody of the alleged cheques used to perpetrate the fraudulent withdrawals from the account of the Respondents. Had the two cheques been tendered in evidence and admitted, the question of who issued, signed, and authorise payments would have been considered. The law is settled that the Court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. See Section 167(d) of the Evidence Act, 2011 and the case of UKPO V. IMOKE (2009) 1 NWLR (PT. 1121) 90. On the issue of Exhibits P2 and P4 admitted in evidence and relied upon by the trial Court, Sections 85 and 86(1), (2), (3) and (4) of the Evidence Act, 2011 stated the contents of documents that may be proved either by primary or secondary evidence and the type of documents which fall within the meaning of primary evidence. Section 88 of the Evidence Act, 2011 (as amended) states that documents shall be proved by primary evidence.
The original documents as in the case of Exhibits P2, P3, P4 and P22 tendered by the Respondents in proof of their claim need no certification. They are original public documents which are admissible in evidence as primary evidence. The heavy weather made on their admissibility by the Appellants holds no water. I so hold. See the cases of DAGGASH V. BULAMA (supra) and AROMOLARAN V. DR. OLAPADE (supra). Per RIDWAN MAIWADA ABDULLAHI, J.C.A.

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

1. FIRST BANK OF NIGERIA PLC 2. MR. ISRAEL ADELEKE APPELANT(S)

And

1 ADEOSUN BUSINESS INVESTMENTS LIMITED 2. CHIEF SUNDAY ADEOSUN 3. MR. SEGUN AJALA RESPONDENT(S)

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of His Lordship, Hon. Justice A. O. Ayoola delivered against the Appellants on 27th June 2014 in Suit No. HOS/38/2010 at the High Court No. 5, Osogbo. The judgment is contained on pages 500 to 533 of the Records of Appeal. Dissatisfied with the judgment, the Appellants filed a Notice of Appeal of five Grounds of Appeal against the judgment on 1st July 2014 (Please see pages 534 -537 of the Records of Appeal).

STATEMENTS OF FACTS RELEVANT TO THE APPEAL
In its Amended Statement of Claim at the trial Court on pages 234 and 244 of the Record of Appeal, the plaintiffs alleged (i) that a sum of N1,864,000.00 was fraudulently and unlawfully paid to one Mr. Ajala Isaac at the 1st Defendant’s Branch office in Onitsha, Anambra State vide cheque No. M183290- 2482893 and (ii) another sum of N1, 600,000.00 was fraudulently and unlawfully paid to one Mr. Ademola Jabaru at the 1st Defendant’s Branch Office in Jos, Plateau State vide another cheque No. M2200115-2482896 from the 1st Plaintiffs current account No. 2762050000533 being

operated at the 1st Defendant’s Branch office at station Road, Osogbo, Osun State of Nigeria on 25th July, 2008 or thereabout with the negligence, collusion and/or connivance of the Defendants and without the knowledge, consent, authority, usual signatures of and/or confirmations by/from the 1st and 2nd plaintiffs.

The defendants gave evidence that the two cheques used for the alleged transactions were part of a complete cheque book duly issued to him by the 1st Defendant. The 2nd defendant admitted that he signed for the cheque book without any complaints of the two alleged missing cheques. The defendant testified that the plaintiff is entirely responsible for the safe custody of his chequebooks issued by banks which contain a warning that customers would be liable for negligence or carelessness in handling their cheque leaves.

At the trial Court, the 1st, 2nd, 3rd Plaintiffs’ claims on pages 243 and 244 of the Record of Appeal against the Defendants jointly and severally in their amended statement of claim are as follows:
1. A total sum of N3,464,000.00 (Three million, four hundred and sixty four thousand naira) consisting of (i) a sum of

N1,864,000.00 fraudulently and unlawfully paid to one Mr. Ajala Isaac at the 1st Defendant’s Branch office in Onitsha, Anambra State vide cheque No. M183290- 2482893 and (ii) another sum of N1,600,000.00 fraudulently and unlawfully paid to one Mr. Ademola Jabaru at the 1st Defendant’s Branch Office in Jos, Plateau State vide another cheque No. M2200115-2482896 from the 1st Plaintiff’s current account No. 2762050000533 being operated at the 1st Defendant’s Branch office at station Road, Osogbo, Osun State of Nigeria on 25th July, 2008 or thereabout with the negligence, collusion and/or connivance of the Defendants and without the knowledge, consent, authority, usual signatures of and/or confirmations by/from the 1st and 2nd plaintiffs
2. 21% interest rate per annum on the said sum of N3,464,000.00 from 25th July, 2008 till the date of payment or judgment.
3. A sum of N5,000,000.00 (Five million naira) as general damages for the blackmail, embarrassments, inconveniences, deprivations and humiliations suffered by the 1st and 2nd plaintiffs due to the unlawful, fraudulent and authorized payments of the said money to unauthorized persons and

subsequent unwarranted arrest and detention of the 2nd plaintiff at the instigation of the Defendants.
4. A letter of unreserved apology to be written by the Defendants to the 1st and 2nd plaintiffs within 7 days of delivery of the judgement in this case for the said actions of the Defendants.
5. A sum of N500,000.00 being the Plaintiffs’ legal fees and the costs of prosecuting this case.
6. 21% interest rate per annum on the whole judgement debt from the date of judgement until the judgement is fully liquidated.
7. The 3rd plaintiff’s claims against the Defendants jointly and severally are as follows:
1. A sum of N2,000,000.00 (Two million naira) as general damages for the blackmail, embarrassments, inconveniences, deprivations and humiliations suffered by the original 3rd Plaintiff in this case, Late R. Isaac Ajala due to the unlawful, fraudulent and authorized payments of a sum of N1,864,000.00 fraudulently and unlawfully paid to one Mr. Ajala Isaac at the 1st Defendant’s Branch office in Onitsha, Anambra State vide cheque No. M183290-2482893 from the 1st Plaintiffs current account No. 2762050000533 being operated at the

1st Defendant’s Branch office at Station Road Osogbo, Osun State of Nigeria on 25th July, 2008 or thereabout with the negligence, collusion and/or connivance of the Defendants and without the knowledge, consent, authority, usual signatures of and/or confirmations by/from the 1st and 2nd Plaintiffs and the subsequent unwarranted arrest and detention of the said Late Mr. Isaac Ajala the instigations of the Defendants.
2. A letter of unreserved apology to be written by the Defendants to the 3rd Plaintiff’s family within 7 days of delivery of the judgement in this case for the said actions of the Defendants.

The learned trial judge on pages 532 and 533 of the Record of Appeal gave judgment against the Appellants as follows:
1st Defendant is hereby ordered to pay N3,464,000.00 (Three Million, Four Hundred and Sixty Four Thousand Naira) consisting of (i) a sum of N1,864,000.00 fraudulently and unlawfully paid to one Mr. Ajala Isaac at the 1st Defendant’s Branch office in Onitsha, Anambra State vide cheque No. M183290- 2482893 and (ii) another sum of N1,600,000.00 fraudulently and unlawfully paid to one Mr. Ademola Jabaru at the 1st

Defendant’s Branch Office in Jos, Plateau State vide another cheque No. M2200115-2482896 from the 1st Plaintiffs current account No. 2762050000533 being operated at the 1st Defendant’s Branch office at Station Road, Osogbo, Osun State of Nigeria on 25th July, 2008 or thereabout with the negligence, collusion and/or connivance of the Defendants and without the knowledge, consent, authority, usual signatures of and/or confirmations by/from the 1st and 2nd plaintiffs.
The 1st Defendant is directed to pay 21% interest rate per annum on the said sum of N3,464,000.00 from 25th July, 2008 till the date of payment or judgement.
A sum of N5,000,000.00 (Five million naira) as general damages in favour of the 1st and 2nd Plaintiffs.
The defendants are to write letters of apology to the 1st and 2nd plaintiffs within 7 days of delivery of the judgement in this case.
The 1st defendant is directed to pay 10% interest rate per annum on the whole judgement debt from the date of judgement until the judgement is fully liquidated.
Costs of N50, 000 in favour of the Plaintiffs.

In compliance to the Rules of Court in prosecuting Civil Appeal, the

parties filed and exchanged briefs of argument and the appeal was heard on the 29th of October, 2019.

At the hearing, Odebata Thompson Esq., who appeared for the Appellants identified and adopted the Appellants’ Brief filed on 6/5/2016, deemed properly filed and served on 10/5/2017. It is settled by Olaide A. Gbadamosi Esq. on behalf of the Appellants. O. U. Yusuf Esq. appeared for the Respondents, identified and adopted the Respondents’ Brief filed on 31/10/2017, deemed properly filed and served on 10/4/2019. It is settled by G. A. Adesina Esq. on behalf of the Respondents which contains Notice of Preliminary Objection with argument in support thereof.

The Appellants formulated five (5) issues for determination of this appeal as follows:
1. Whether the plaintiffs who alleged fraud and forgery in a civil case, have proved their case up to the ‘standard of proof beyond reasonable doubt’ as required by law.?
2. Whether the learned trial judge rightly evaluated evidence on the basis of reliance on public documents that were not certified as required by the law?.
3. Whether the learned trial judge was justified in

awarding judgment in a case of fraud wherein the Plaintiffs witnesses made copious admissions that the alleged withdrawals were made with the consent and approval of the Plaintiff?
4. Whether the N3 million general damages awarded by the Court did not amount to double compensation rendering it excessive, arbitrary, oppressive and meant to give windfall to the Respondent?
5. Whether the 21% interests on the principal claim of N3,464,000. 00 (Three million, four hundred and sixty four thousand naira) was not arbitrary and based on wrong principles of law?

The 1st to 3rd Respondents raised one (1) issue for determination of the Preliminary Objection, viz:
“Whether or not this Court has the jurisdiction to entertain this appeal and whether this appeal is not misconceived, irregular, incompetent, an abuse of the processes of this Court and liable to dismissal as presently constituted.”

They (1st to 3rd Respondents) submitted two (2) issues from the grounds of appeal as follows:
(1) Whether or not the originals of (1) The certificate of incorporation of the 1st Respondent tendered and admitted as Exhibit P2 and (2) The

Police Report tendered and admitted as Exhibit P4 without objections from the Appellants are admissible and properly admitted without certifications and relied upon by the Lower Court and whether the 1st Respondent has locus standi to file the claim as the 1st Plaintiff at the Lower Court (Covers Ground 3 of the grounds of appeal and Appellants’ Issue No. 1.)
(2) Whether or not the 1st and 2nd Respondents have proved their claim as required by law and are entitled to the reliefs granted in their favour by the Lower Court (Covers Grounds 1, 2, 4 and 5 and Appellants’ issue Nos. 1, 2, 4 and 5)

In arguing the lone issue which covers the two grounds of the Preliminary Objection, the learned Counsel to the 1st to 3rd Respondents referred to Section 243(1) (a & b) of the 1999 Constitution and contended that anybody who is not a party to the proceedings at the lower Court is not allowed to appeal against the judgment delivered by that Court without the prior leave of the lower Court and/or this Court. That the material difference in the names of parties to a particular case or an appeal (as in this appeal), may be fatal and sufficient to dismiss

or strike out a case. Referred to the case of ESENOWO V UKPONG (1999) 4 SCNJ 109 @ 114 where it was held that “there is a difference between J. E. Esenowo and E. J. Esenowo and that one cannot be substituted for the other”. Also referred to the case of FAGBOLA V TITILAYO PLASTIC INDUSTRY LTD (2005) 2 NWLR (pt. 909) 1 @ 19 where the Court held that material error in the name of a party was fatal to the case.

Counsel submitted that the 2nd Defendant at the lower Court who should ordinarily be the 2nd Appellant in this appeal is Mr. Israel O. Adeleke not Mr. Israel Adeleke as appeared on the Notice of Appeal and the Appellants’ Brief. That since Mr. Isreal O. Adeleke is separate and distinct from Mr. Isreal Adeleke, the proper parties are not before this Court.

He contended that the Appellants are in contravention of Order 7 Rule 2 (1) and Civil Form 3 of the Court of Appeal Rules, 2016 for failure to follow the format required by the Rule. That Rules of Court are meant to be obeyed and a Litigant who chooses to disregard the Rules of Court (as in this appeal) must be prepared to face the consequences provided by the Rules. More so

that the Court should not remain passive and helpless when its Rules are being disobeyed. Referred to the cases of ARABELLA V NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 32 WRN 1 @ 21, (2008) 5 SCNJ 109; AKANBI & ORS V ALAO & ANOR (1989) 3 NWLR (pt. 108) 118, (1989) 5 SCNJ 1 @ 10 and NNOYE V ANICHIE & 2 ORS (2005) 8 WRN 1 @ 32 – 33.

Counsel submitted that the Appellants have violated the Rules of this Court and they should be made to face the consequence of throwing out their appeal. He urged us to resolve this issue in favour of the Respondents against the Appellants and to hold that this Court lacks jurisdiction to entertain the appeal as it is constituted.

RESOLUTION OF THE PRELIMINARY OBJECTION
There is no Appellants’ Reply Brief filed in response to the argument of the Preliminary Objection. Notwithstanding, it is of importance to consider the Preliminary Objection in its merit. My perusal of the Writ of Summons contained on pages 12 – 15 of the Record of Appeal bears the name of Mr. Israel O. Adeleke as the 2nd Defendant. The supporting statement of claim has the same name and all processes related

thereto up to judgment of the lower Court have the name of Mr. Israel O. Adeleke as the 2nd Defendant.

The initiating process in this appeal tagged ‘NOTICE AND GROUNDS OF APPEAL’ contain at pages 534 – 537 has the name of Mr. Isreal Adeleke as the 2nd Appellant not Mr. Israel O. Adeleke as on the Writ of Summons and the judgment delivered on 27th June, 2014 by the lower Court.
The record of Appeal transmitted to this Court on the 29th January, 2016 and deemed properly filed and served on the 10th of May, 2017 together with the Appellants’ Brief of Argument, both bear the name of Mr. Israel Adeleke as the 2nd Appellant. The name ‘Israel’ is written differently from that on the Notice and Grounds of Appeal, that is ‘Isreal’.

By an unopposed application in Motion on Notice dated and filed on the 14th December, 2017, the Appellants/Applicants sought leave to amend the initiating process to this appeal and was moved by the learned Counsel for the Appellants. The application was granted on the 10th of April, 2019 with deeming order and the clean copy of the AMENDED NOTICE OF APPEAL filed together with

the Motion papers was deemed the same date of 10/4/2019.

The appeal was heard vide the AMENDED NOTICE OF APPEAL which has the corrected name of Mr. Israel O. Adeleke as the 2nd Appellant and in compliance with Order 7 Rule 2 (1) and Civil Form 3 of the Court of Appeal Rules, 2016.

I can’t see the reason why the Respondents will approbate and reprobate on technical issue as against substantial justice required of this appeal. Substantial justice is now the trend of events as against technicalities.

In the light of above, the issue under reference raised by the Respondents from the grounds of the Preliminary Objection is of no moment and therefore resolved against the Respondents. It is discountenance forthwith.

Having dealt with the aspect of the Preliminary Objection on issue of jurisdiction of this Court to entertain the appeal, it is now clear that the main appeal can be treated on the merit and will proceed to do so.

Looking at the issues formulated by the parties in this appeal, those of the Appellants are apt and would be used to determine the dispute in the appeal.

ISSUE ONE (1) as quoted above was argued by the

learned counsel to the Appellants by reference to the testimony of PW2 (ASP – Clement Nwuzor) who was the investigating police officer that on whose evidence the learned trial judge attached much weight in his judgment.

He said that contrary to the holding of the learned trial judge in his judgment on page 520 of the Record of Appeal that the Respondents pleaded and proved by evidence particulars of fraud, the Respondents only pleaded particulars of fraud on page 241, para. 43 of the record of appeal but no such copious reference was contained in the Amended Statement on Oath on page 285, para. 16 as referred by the learned trial judge. That where credible evidence was not led on pleaded facts, such evidence goes to no issue.

Counsel said that, it is trite law, ‘he who asserts must prove’. In the course of trial, the plaintiffs did not exhibit the handwriting, signatures and stamp of the 1st plaintiff to compare and substantiate their claim as averred in para. 43 (2) and (4) of the Amended Statements of claim on page 241 of the Record of Appeal.

Counsel referred to that testimony of the PW2 on page 361, para 11 and page 362,

para 15 of the record. He contended that the star witness did not tender any documentary evidence, such as the mandate from, specimen of handwriting and signature for the sake of comparison with the handwriting and signature on the cheque. No handwriting and signature expert were brought to substantiate the claim of forgery which requires proof beyond reasonable doubt. Referred to BABALE V. EZE (2011) 11 NWLR (pt. 1257) 68 and GBADAMOSI V. OKEGE (2011) 3 NWLR (pt. 1233) 182.

Counsel further referred to the testimonies of PW1 on Page 482 Lines 12 and 13 also lines 15 and 16 of the Record of Appeal. In addition, he referred to cross-examination of DW1 on page 495, lines 7-9 of the record. He submitted that their evidence on pages 482 and 495 imply contributory negligence on the part of the 1st and 2nd Respondents. That it is trite law that a party cannot benefit from its/his own wrong.

He submitted that the evidence of DW1 and DW2 during cross-examination at pages 346-347, paras 9-13 and 19-26 and also pages 394-395, paras 8-22 of the Record of Appeal were not controverted or contradicted. That it is trite law when evidence is not contradicted or

controverted should be deemed as correct.

Counsel contended that PW1 never complained of missing cheque leaves when the cheque booklet was given to him which he admitted that he duly signed for. The consequential implication of the admission is that he cannot transfer any negligence or carelessness arising from the transaction involving the two cheques which emanated from his custody to the defendants. That equity aids the vigilant and not the indolent.

Counsel opined that just as the Bank owes its customers a duty to honour their cheques, there is reciprocal duty of customers to keep their cheque books safe and not to mislead the Bank or facilitate forgery. Referred to LONDON JOINT STOCK BANK LTD V. MACMILLAN & ANOR (1918) AC 777 and KULATILLEKE V. MERCANTILE BANK OF INDIA (1958) 59 CEYLON NLR 190.

In response, the learned counsel to the Respondents contended that the Respondents based their claims on bad faith, malice, mistake, negligence and/or fraud on the part of the Appellants and that the particulars thereof are contained in the various paragraphs of the Respondents’ Amended Statement of Claim (at paras. 1-47), reply to the

Consequential Amended Statement of Defence (at paras. 1-22), the Statements on Oaths of PW1-7 and the documents tendered and admitted as Exhibits P-P22. He said that the Appellants did not tender any document as exhibit to contradict the documents tendered by the Respondents.

Counsel contended that the onus of disproving all those facts already established by the Respondents had shifted to the Appellants which they failed to discharge by credible oral and documentary evidence required of them by the law.

He argued that the Respondents proved all their claims beyond reasonable doubt at the lower Court based on the arguments already canvassed on the state of pleadings. That the Respondents have discharged the initial onus of proof placed on them, but the Appellants have woefully failed to discharge the onus that shifted to them.

That the Appellants did not tender any document or report in evidence at the trial to prove or disprove the signature of the 2nd Respondent. He is of the opinion that failure to tender the report of the alleged investigations carried out by two Police officers in Osogbo or called in evidence the said Policemen by the

Appellants at the trial, only left the Court to speculate. He said that, it is trite, ‘he who asserts the existence of a fact must prove such fact and not to leave the Court in speculation’. Referred to MUELLER V. MUELLER (2006) 6 NWLR (pt. 977).

Counsel referred to the evidence of PW2 and said that as an expert in fraud investigations, PW2 stated that the Special Fraud Unit did a thorough investigation. He referred to pages 483-484 of the records and argued that at no point during cross-examination was PW2 asked whether he obtained the specimen signature of the 2nd Respondent or not. That the Appellants’ counsel attempt in his brief to make heavy weather of whether the PW2 obtained the specimen signature of the 2nd Respondent or not amounts to an attempt to substitute his address for evidence adduced during trial. He submitted that since no evidence was led at the trial in proof, or disproof of same, it goes to no issue as counsel’s address no matter how brilliant cannot take the place of evidence. Cited ARCHIBONG V EDAK (2006) 7 NWLR (pt. 980) 455 @ 502.

ISSUE TWO (2) as quoted above was argued by the learned counsel for the

Appellants by reference to pages 248, 262 and 525 of the Record of Appeal. He said that from those pages, the learned trial judge clearly departed from his earlier ruling in the same proceedings in his judgement. That it was improper and made upon wrong application of the law.

He contended that Exhibits P2 and P4 being public documents without certification in accordance with Sections 102 and 104 of the Evidence Act, 2011, goes to the root of the competence of the 1st Respondent to sue in this case. That the implication is that the said 1st Respondent do not have locus standi and this rendered its suit incompetent. Relied on the case of ONUEKWUSI V R.T.C.M.Z.C. (2012) 6 NWLR (pt.1278) 347 Ratios 4 and 5.

That the learned trial Judge relied on Police Investigation Report (Exhibit P4) which is a worthless document in the eyes of the law for not being a Certified True Copy. He said that it is trite law that the standard of proof required to sustain Fraud and Forgery is ‘proof beyond reasonable doubt’ which the Respondents have failed woefully to prove. Referred to NWAOGU V. ATUMA (2013) 11 NWLR (pt. 1364) 121.

Counsel submitted that if documents are wrongfully received in evidence before the trial Court, an Appellate Court has the inherent jurisdiction to exclude it although counsel at the lower Court did not object to their going in. He cited MALLAM YAYA V MOGORO (1947) 12 WACA 132 at 133 and AYANWALE & ORS V ATANDA & ANOR (1988) 1 SC 1 at 3; (1988) 1 NWLR (pt. 68) 22. Referred to OSHO & ANOR V MICHAEL APE (1998) 6 SCNJ 139 at 152-153; (1988) 8 NWLR (pt. 562) 492.

In response, the learned counsel to the Respondents contended that the said documents marked as Exhibits P2-P4 are the originals and therefore the primary evidence of Public Documents which do not require Certifications before they can be tendered, admitted and relied upon as by the lower Court has done. He said, it is trite that originals of public documents are admissible without need for making Certified True Copies thereof by virtue of Sections 91(1)(a), 93, 94(1), 95, 96, 97(1)(e) and 112 of the old Evidence Act which are in pari materia with Sections 85 and 86 (1) & (2) of the Evidence Act, 2011.

Counsel submitted that this legal position has been settled by the Supreme Court in DAGGASH V BULAMA

(2004) 14 NWLR (pt.892) 144 at 206-207 paras. F-A and p. 208 paras. G-H and also in AROMOLARAN V DR. OLAPADE AGORO (2014) 12 SCNJ 116 @ 130-131.

He said that it is only where secondary evidence of a public document (such as a photocopy) is to be tendered that will be necessary to tender Certified True Copy thereof. That an original public document does not require certification before it can be tendered and admitted in evidence and also relied upon by the Court.

On the issue of the 1st Respondent’s locus standi to institute the case at the lower Court, the learned counsel to the Respondents opined that it was borne out of the facts of this case but based on the Appellants’ misconception that Exhibit P2 was not admissible which the Respondents proved the contrary. Referred to ROCKONOH PROPERTIES LTD V NIGERIAN TELECOMMUNICATION PLC (2001) 14 NWLR (pt. 733) 468.

He contended that the incorporation of the 1st Respondent was never challenged by the Appellants at the lower Court and that the said fact was expressly admitted by the Appellants and needs no further proof in law. That the Appellants cannot now in good conscience deny the

existence of the 1st Respondent as an incorporated company legally entitled to sue and be sued in its own name with the necessary locus standi to file the claim at the lower Court and to challenge the frauds that led to the case.

Counsel urge us to resolve this issue in favour of the Respondents and against the Appellants.

ISSUE THREE (3) as quoted above was argued by the learned counsel for the Appellants to the effect that the Respondents are bound by the voluntary and copious admissions contained in their statements on Oath, respectively. That the admissions therein rendered their case to collapse like a pack of cards. He said that facts admitted need no further proof. Relied on OKAFOR V INEC (2010) 3 NWLR 1 NWLR (pt. 1176) 468 and TAIWO V ADEGBORO (2011) 11 NWLR (pt. 1259) 562. Referred to Section 20 of Evidence Act, 2011.

Counsel contended that the position taken by the learned counsel to the Respondents in his Written Address on page 456, lines 4-15 on the copious admissions that they should be discountenanced is not the correct position of the law.

He further contended that the testimonies of PW5 and PW3 at pages 301 and 312,

lines 12 and 17 and lines 17 and 23 respectively are hearsay evidence. That hearsay evidence led by them and others are not admissible by virtue of Section 38 of the Evidence Act, 2011. Reference made to the case of AGODA V ENAMUOTOR (1999) 8 NWLR (pt. 615) 407.

In response, the learned counsel to the Respondents argued that the 1st and 2nd Respondents’ reliefs granted by the lower Court were based on the overwhelming pleadings, oral and documentary evidence, and sound legal reasoning. That on this claim, there were uncontroverted evidence that there were fraudulent withdrawals. He said that the 1st and 2nd Respondents had been banking with the 1st Appellant for well over 20 years before the fraud were committed.

On issue of hearsay evidence, counsel contended that it was inconsistent with the Respondents’ position at the lower Court. That the Appellants are now capitalised on the omissions of the word ‘OUT’ from the English versions of the said witnesses testimonies which was mere typographical errors that did not depart from the main thrust of their respective statements on Oaths and the position of the Respondents. He

referred to the Yoruba versions of the statement on Oaths of some of the witnesses as the basis for their application of discountenance due to the said omissions. He submitted that assuming without conceding that the statement on Oaths of the said witnesses could not be relied upon, those of the other witnesses were substantial and credible enough to sustain the Respondents’ claims. Counsel submitted that the mere fact that the lower Court did not make any pronouncement on the submissions made by counsel to both sides on these points are not enough to discredit the judgment of the lower Court.

ISSUE FOUR (4) as quoted above was argued by the learned counsel for the Appellants that the award of N3million as general damages in addition to 21% interest on principal claim of N3,464,000.00 and also an additional N50,000.00 as costs amount to triple compensation. That it is in contravention of the principle of law governing the award of damages which rendered the 1st and 2nd Respondents receiving compensation thrice in the same course of action.

He said that the learned trial Judge award of N3 million general damages on sentiments and sympathy was

against the principle of ‘restituo in intergnum’ and excessively high. Referred to U.B.A PLC V B.T.L. IND. LTD (2006) 28 NSCQR 381; U.B.N PLC V. EMOLE (2001) 18 NWLR (pt. 745) 506 Ratio 4 and OTTO V MABAMIJE (2005) All FWLR (pt.262) 601.

He contended that the general damage and 21% interest when calculated are more than the principal claim and thereby rendered it extremely high, speculative, sentimental, exemplary, punitive and excessive. He said that this Court has the discretion to reverse the award of general damages and referred to AFRIBANK PLC V ISHOLA INV. LTD (2003) FWLR (pt.141) 1847, Ratio 4.

Counsel submitted that in the course of evidence, the Respondents never led evidence to show that he took reasonable steps of safe guarding his cheque book or reporting any missing cheque book leaves in the cheque booklet at the time of signing for the booklet, yet the Court awarded high amount of N3Million as general damages.

In response, the learned counsel to the Respondents argued that contrary to the Appellants’ contentions the order for refund of N3,464,000.00 with 21% interest thereon was legally justified, since the

Appellants deliberately and unjustifiably prevented 1st and 2nd Respondents access to the said sum, which they could have profitably invested in their businesses since July, 2008.

He said that the claim for special damages of N5 Million out of which the lower Court in its exercise of unfettered discretion granted only N3 Million was based on the embarrassment, inconveniencies, deprivation and humiliations suffered by the 1st and 2nd Respondents due to unlawful and fraudulent withdrawals. Also, the unwarranted arrest and detention of the 2nd Respondent at the instigation of the Appellants.

Counsel submitted that the Appellants’ contentions on the award of damages, refund of the money illegally withdrawn and award of N50, 000.00 costs are not true reflection of sympathy, sentiments and extraneous considerations.

He said that the award of 10% post judgement interest with effect from 27/6/2014 is proper and justified under Order 35 Rule 4 of the Lower Court which allows a Judge to award post judgement interest of not less than 10%.

Counsel submitted that the N3,464,000.00 with the pre and post judgement interests and the N50,000.00

costs awarded in favour of the 1st and 2nd Respondents by the lower Court do not amount to multiple compensations, they were all granted in exercise of the judicial and judicious discretions of the Lower Court, considering the pleadings, evidence and submissions of the learned counsel at the lower Court.

ISSUE FIVE (5) as quoted above was argued by the learned counsel for the Appellants to the effect that the award of 21% interests on the judgement sum of N3,464,000.00 was speculative and based on wrong principle of law since the current rate was never led in evidence. Cited the case of P.S.O. OLASOPE & ANOR V JAMES AJENIPE BABATAYO (2005) All FWLR (pt. 272) 339 at 243, Ratio 6.

He said, the award of 21% interest is arbitrary in the absence of any express agreement to pay interest or where the agreement to pay interest cannot be implied from the course of dealings between the parties or from the nature of the transactions or a custom or usage of the trade or profession especially when the account involved was a current and not savings account. Referred to EKWUNIFE V WAYNE (WEST AFRICA) LTD (1989) 5 NWLR (pt. 122) 422.

Counsel submitted that the decision of the learned trial Judge in awarding 21% interest did not follow the Golden Rule of judicious and judicial exercise of discretion. He therefore urged the Court to resolve all the issues in favour of the Appellants.

In response, the learned Counsel to the Respondents who earlier on canvassed the issue of 21% interest under ISSUE 4, simply urged this Court to resolve the issue against the Appellants and all other issues in this appeal to be resolved in favour of the Respondents, hold that the 1st and 2nd Respondents have proved their claims as required by Law beyond reasonable doubt and therefore entitled to the reliefs granted in their favour by the lower Court.

RESOLUTION OF ISSUES
It is worthy to note that the Appellants have not stated the grounds of appeal covered by their issues. Notwithstanding, I have done my best to relate the issues formulated by them to the grounds of appeal in the course of discuss of the issues provided by the parties.

ISSUES 1 AND 2
It is very essential to refer to and peruse the Record of Appeal, particularly the judgment of the lower Court which gave birth to this appeal. I therefore

painstakingly perused the said record in order to do justice to the disputing parties in the appeal.

From the pleadings and evidence led, there is no controversy that the relationship between the Appellants and Respondents is that of banker and customer. The nature and scope of the relationship between banker and its customer has been stated in many authorities, one of which is U.B.A. PLC V G.S. IND. LTD (2011) 8 NWLR (PT. 1248) 590 AT 577. See also STANDARD TRUST BANK LTD V ANUMNU (2008) 14 NWLR (pt. 1106) 125.

The law is settled that where an allegation of fraud is made in a civil case, it must be pleaded with particulars and proved ‘beyond reasonable doubt’. See S.135 of the Evidence Act, 2011 and the cases of OLALOMI IND LTD V N.I.B. LTD (2009) 16 NWLR (pt.1167) 266 at 287 paras. B-D and OTUKPO V JOHN (2012) 7 NWLR (pt. 1299) 357 at 382-383 paras. C-B where the Supreme Court inter-alia held that ‘Fraud has to be pleaded with particulars and establish in evidence’…
See also the provisions of Section 138 (1), (2) and (3) of the Evidence Act, 2011 (as amended) and the case of ANYAWU V UZAWUAKA (2009) 13 NWLR (pt.

1159) 445 at 475 paras. A-C.

I saw on record that the Respondents copiously pleaded the allegation of fraud with particulars in para. 43 of the Amended Statement of Claim and paras. 8 and 9 of the Consequential Reply to the Amended Statement of Defence. There are evidence on record in support of the pleadings which were uncontroverted and/or contradicted. The evidence adduced by the Respondents before the lower Court were both oral and documentary admitted in evidence without objection from the Appellants at the trial.
The law is trite that where a party asserts the positive and the other asserts the negative, the initial burden is on the party who asserts the positive to prove his assertion. In this appeal, from the Record, the Respondents had denied issuing two cheques fraudulently used in withdrawal of the total sum of N3, 464, 000. 00 from their accounts with the Appellants. Both oral and documentary evidence as shown on record were led in proof of the assertion.

The onus of disproving that assertion shifted on the Appellants by cogent and convincing evidence to show that the Respondents issued, authorised, signed and confirmed the two

cheques for withdrawal in favour of those allegedly paid money. Nothing in the Record of Appeal indicating any effort made by the Appellants as Defendants at the Lower Court to tender the cheques in evidence even though pleaded by them in their statement of Defence. This resulted to a serious failure on the part of the Appellants who had the custody of the alleged cheques used to perpetrate the fraudulent withdrawals from the account of the Respondents. Had the two cheques been tendered in evidence and admitted, the question of who issued, signed, and authorise payments would have been considered.

The law is settled that the Court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. See Section 167(d) of the Evidence Act, 2011 and the case of UKPO V. IMOKE (2009) 1 NWLR (PT. 1121) 90.

On the issue of Exhibits P2 and P4 admitted in evidence and relied upon by the trial Court, Sections 85 and 86(1), (2), (3) and (4) of the Evidence Act, 2011 stated the contents of documents that may be proved either by primary or secondary evidence and the type of documents which fall within the

meaning of primary evidence. Section 88 of the Evidence Act, 2011 (as amended) states that documents shall be proved by primary evidence.
The original documents as in the case of Exhibits P2, P3, P4 and P22 tendered by the Respondents in proof of their claim need no certification. They are original public documents which are admissible in evidence as primary evidence. The heavy weather made on their admissibility by the Appellants holds no water. I so hold. See the cases of DAGGASH V. BULAMA (supra) and AROMOLARAN V. DR. OLAPADE (supra).

Flowing from the aforesaid, I am of the view that the Respondents have proved their case based on the standard of proof on preponderance of evidence required by law in a civil claim/action with some elements of criminality by sufficient particulars and evidence adduced in support thereof. The learned trial Judge rightly evaluated evidence on record on the basis of reliance on public documents tendered and admitted in evidence without objection at the trial.

These two issues under reference (1 and 2) are resolved against the Appellants and in favour of the Respondents.

ISSUES 3
This issue 3 is partly considered in issues 1 and 2 above and I will add here that the omissions of the word ‘OUT’ from the English versions of the referred witnesses testimonies which was clear indication of mere typographical errors that did not depart from the main thrust of their respective Statements on Oaths and the position of the Respondents.

From the Record of Appeal, even if the referred witnesses Statements on Oath are jettison, those of the other witnesses of the Respondents were substantial and credible enough to sustain the Respondents’ claims. I so hold.

I am in agreement with the submission of the learned counsel to the Respondents that the mere fact that the trial Court did not make any pronouncement on the submissions made by counsel to both sides on this points are not enough to discredit the judgment of the lower Court.
In the light of the above, this issue 3 is resolved against the Appellants and in favour of the Respondents.

ISSUES 4 AND 5
The Appellants grouse under these issues is that the learned trial Judge contravened the principle of law governing the award of damages which rendered the 1st and 2nd Respondents to

receive compensation thrice in the same course of action.

Going by the Record of Appeal, the contentions of the learned counsel for the Appellants on the award of damages, refund of the money illegally withdrawn and award of N50, 000.00 costs are not true reflection of sympathy, sentiments and extraneous considerations as envisaged by the learned counsel to the Appellants. The award made were in exercise of the judicial and judicious discretions of the lower Court, considering the pleadings, evidence and submissions of learned counsel contained in the Record of Appeal.

The heavy weather made by the learned counsel for the Appellants on excessiveness of the learned trial Judge’s award and his reliance on the cases of P. S. O. OLASOPE & ANR V. JAMES AJENIPE BABATAYO is of no moment and the authorities relied upon inapplicable to the circumstances of this case. Nothing on record establishing the use of arbitrariness by the lower Court in the awards of damages and costs. This Court cannot embark on voyage of discovery to ascertain the alleged arbitrary use of judicial power by the learned trial Judge in the course of his judgment. This I found

and therefore hold.

Based on the aforesaid, the two issues (4 and 5) are resolved against the Appellants and in favour of the Respondents.

Having resolved the five (5) issues formulated by the Appellants in their brief of argument in favour of the Respondents, this appeal is bereft of merit and cannot be allowed as urged by the Appellants herein. The Appeal is hereby dismiss and the judgment of the Lower Court delivered by Hon. Justice A. O. Ayoola of Osun State High Court, Osogbo on the 27th June, 2014 in Suit No. HOS/38/2010 is therefore affirmed.
Parties to bear their costs of prosecuting and defence of this Appeal.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead Judgment herein delivered by my learned brother Ridwan M. Abdullahi, JCA and agree that the appeal on the issues raised, have no merit and should fail.

Indeed from the moment that the issues raised were made to float at large and not tied to any Ground of Appeal, the appeal was deemed unargued as appeals in this Court are argued and resolved on Issues and not on the Grounds of Appeal filed. Either way, the Appeal yielded no dividends to the Appellants herein,

particularly, the 1st Appellant who had not articulated a viable Defence led in respect of its duty of care to its customer and in avoidance of negligence in the conduct of its Banking Business, could not escape liability. The 1st Appellant could not prove its assertion of fraudulent or criminal withdrawal against the Respondent customer from his own Account, as alleged in its purported Defence to its own action.
I abide in toto with the reasoning and conclusion reached in dismissing the appeal.

PATRICIA AJUMA MAHMOUD, J.C.A.: I had the benefit of reading in draft the lead judgment of my learned brother, R. M Abdullahi, JCA just delivered. I completely agree with the reasoning and conclusion which I adopt as mine in holding that this appeal is unmeritorious and ought to be dismissed. I accordingly dismiss it.
I too make no order as to costs in this appeal.

Appearances:

Odebata Thompson Esq. For Appellant(s)

U. Yusuf Esq. For Respondent(s)