FBN LTD v. ROYAL PAVILION (NIG) LTD & ANOR (2022)

FBN LTD v. ROYAL PAVILION (NIG) LTD & ANOR

(2022)LCN/16560(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, February 10, 2022

CA/IB/360/2018

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

FIRST BANK NIGERIA LIMITED APPELANT(S)

And

1. ROYAL PAVILION NIGERIA LIMITED 2. OLUFEMI BAMIDELE OBADINA RESPONDENT(S)

RATIO:

A DOCUMENT MAY HAVE NO PROBATIVE VALUE WHEN WEIGHTED IN RELATION TO PROOF OF THE CASE BEFORE THE COURT

It is trite that admissibility of a document which is based on relevance is distinct from the probative value that is attached to a document. A document may be admissible and may even be admitted by the Court, yet the said document may have no probative value when weighted in relation to proof of the case before the Court. See: NWABUOKU & ORS v ONWORDI & ORS (2006) LPELR-2082(SC), per Tobi, JSC at pages 20–21, para. F; MOTANYA & ORS v ELINWA & ORS (1994) LPELR-1919(SC), per Kutigi, JSC at page 11, para. A; and U.T.C. (NIG.) PLC v LAWAL (2013) LPELR-23002(SC), per Kekere-Ekun, JSC at pages 31–32, para. F. ABBA BELLO MOHAMMED, J.C.A.

PUBLIC DOCUMENTS DO NO NOT HAVE TO BE TENDERED BY THE MAKER

THE ONLY PERSON WHO COULD EFFECTIVELY GIVE EVIDENCE AS TO ITS CONTENTS OF A DOCUMENT IS THE MAKER OF THE DOCUMENT

However, even as a public document is admissible in evidence once it is the original or a certified copy, it is also trite law that the only person who could effectively give evidence as to its contents of a document is the maker of the document. A person who did not make a document is not competent to give any evidence as to its contents, otherwise, his evidence would amount to hearsay evidence. See: IKPEAZU v OTTI (2016) 8 NWLR (Pt. 1513) 38, per Galadima, JSC at page 93, paras. A–B; EMMANUEL v UMANA & ORS (2016) LPELR-40659(SC), per Mohammed, JSC (as he then was) at pages 12–13, para. F; and OMEGA BANK (NIG.) PLC v O.B.C. LTD (2005) LPELR-2636(SC), per Tobi, JSC at page 36, para. B.
From the above, it is clear that, save for the tendering of the certified copies of Exhibits 7A–7F by DW2, in proof of the existence and veracity of the documents, DW2 who is not the maker of the documents could not give any evidence on their contents. In such a situation, no probative value should be attached to the said documents since the Appellant had no chance of cross-examination on the contents of the said documents. See: IKPEAZU v OTTI (supra); EMMANUEL v UMANA & ORS (supra); and OMEGA BANK (NIG.) PLC v O.B.C. LTD (supra). ABBA BELLO MOHAMMED, J.C.A.

THE EVIDENTIAL ONUS OF PROOF IS FIRST ON THE LENDER WHO ASSERTS THAT HE HAD GRANTED LOAN TO THE BORROWER

It is settled that in loan recovery cases, the lender, like all claimants in civil cases, has the legal burden of establishing his case, as well as the first evidential burden of establishing that he indeed granted and disbursed the loan which he asserts to the borrower. In other words, apart from the legal burden of all claimants to establish their cases which does not shift, the evidential onus of proof is first on the lender who asserts that he had granted loan to the borrower, to establish that he indeed granted and disbursed the loan to the borrower. Once the lender has discharged this evidential burden of proof placed on him, the burden then shifts and oscillates to the borrower to prove that he had repaid the loan as agreed by the parties. See: Sections 131–134 of the Evidence Act, 2011 and the cases of UNION BANK v RAVIH ABDUL & CO. LTD. (2018) LPELR-46333(SC), per Bage, JSC at pages 13–16, para. D; FBN v NWOKOLO (2021) LPELR-55480(CA), per Ekanem, JCA at pages 17–18, para. F; NEJO v ACCESS BANK & ORS (2019) LPELR-47960(CA), per Ogakwu, JCA at pages 20–21, para. B; and FIRST INLAND BANK v CRAFT2000 LIMITED & ANOR (2011) LPELR-4167(CA), per Akeju, JCA at page 23, para. A. ABBA BELLO MOHAMMED, J.C.A.

THE SETTLED LAW ON A LOAN RECOVERY DISPUTE BETWEEN A BANK AND ITS CUSTOMER

It is settled law that in a loan recovery dispute between a bank and its customer, the usual questions under consideration are: (i) was the Defendant granted the loan? (ii) If so, how much was he granted? (iii) What was the agreed rate of interest? (iv) how much if any has the Defendant repaid? See: FBN PLC v OBEYA (1998) 2 NWLR (Pt. 537) 205 at 207; A.C.B. PLC v NWANNA TRADING STORES (NIG) LTD (2007) 1 NWLR (Pt. 1016) 596; and ASIKPO v ACCESS BANK (2015) LPELR-25845(CA), per Otisi, JCA at page 40 paras. C. ABBA BELLO MOHAMMED, J.C.A.

THE SETTLED LAW IS THAT THE BURDEN IS ON AN ADMITTED DEBTOR TO SHOW THAT HE HAS PAID OFF THE INDEBTEDNESS
As for the fourth question of how much the Defendant had repaid if any, the settled law is that the burden is on an admitted debtor to show that he has paid off the indebtedness. Mere denial of the indebtedness is untenable in law, a defendant must state why he is not indebted in full or in part. See: SANUSI BROTHERS (NIGERIA) LTD V COTIA C.E.I.S.A. (2000) LPELR-3006(SC), per Wali, JSC at pages 16–17, para. E; COLLINS COMMERMEX NIGERIA LTD & ANOR v SKYE BANK PLC (2019) LPELR-46892(CA), per Garba, JCA (as he then was) at page 37, para. C; and FCMB v ROPHINE (NIG) LIMITED & ANOR (2017) LPELR-42704(CA), per Nimpar, JCA at pages 10–12, para. E. ABBA BELLO MOHAMMED, J.C.A.

THE FINDINGS OF A TRIAL COURT WHICH IS NOT BORNE OUT OF THE PLEADINGS AND EVIDENCE LED BY THE PARTIES IS SAID TO BE WRONG AND PERVERSE

It is settled law that findings of a trial Court which is not borne out of the pleadings and evidence led by the parties is said to be wrong and perverse. In ODOM & ORS v PDP & ORS (2015) LPELR-24351(SC), the Supreme Court per Muhammad, JSC explained a perverse finding of fact as follows:
“A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the Court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of Justice. A decision being reviewed may as well be found to be perverse on account of the trial Court’s wrongful application of the law to correctly ascertained facts.”
See also: LAGGA v SARHUNA (2008) LPELR-1740(SC), per Tobi, JSC at pages 44–45, Para. A; and DALA v AYODELE (2014) LPELR-24621(CA), per Wambai, JCA at pages 34–35, para. E. ABBA BELLO MOHAMMED, J.C.A.

THE REPAYMENT OF BANK LOAN IS PROVED BY SHOWING ENTRY OF LODGMENTS

It is settled law that repayment of bank loan is proved by showing entry of lodgments either by cheques, cash, bank drafts or money transfer by the customer or his agent in the account which is credited and cleared or honored by the bank or by exhibiting bank tellers showing those lodgments. See: FLOBBY ENTERPRISES (NIG.) LTD v NDIC & ORS (2019) LPELR-47273(CA), per Ikyegh, JCA at pages 33–34,paras. F; OKPOKO COMMUNITY BANK LTD. v IGWE (2012) LPELR-19943(CA), per Okoro, JCA (as he then was). ABBA BELLO MOHAMMED, J.C.A.

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final judgment of the Federal High Court, Abeokuta Judicial Division (the trial Court), delivered on the 28th of June, 2018. The judgment is at pages 990–1018 of the Record of Appeal.

Before the trial Court, the Appellant, as Plaintiff, claimed against the Respondents, as Defendants, the sum of N124,851,229.92 (One Hundred and Twenty Four Million, Eight Hundred and Fifty-One Thousand, Two Hundred and Twenty Nine Naira, Ninety Two Kobo) as at May, 2014, being the amount outstanding on the principal and interest on the finance facilities granted to the 1st Defendant by the Plaintiff which were guaranteed by the 2nd Defendant. The Appellant also sought for an order for sale of the 2nd Respondent’s property used as security for the facilities. (See the Statement of Claim at pages 468–474 of the Record of Appeal).

In response to the suit, the Respondents filed a Statement of Defence and Counter Claim as shown at pages 564–571 of the Record of Appeal. In the counter-claim, the Respondents sought for a declaration that the acts of the Appellant and its staff on the Respondents’ account constitute a gross violation of the Central Bank of Nigeria (CBN) Policy Guidelines; an order directing the Appellant to reverse a total of N102,649,027.88 being amount discovered to be excessive charges, unwarranted deductions and statutory penalties; N100 Million general damages; and several other orders as contained in the Respondents’ pleadings. Th ne Appellant also filed a Reply to the Statement of Defence and Defence to the Counter Claim.

After a full pledged trial, the trial Court delivered judgment on 28th June, 2018, the trial Court delivered its final judgment at pages 990–1018 of the Record dismissing both the Respondent’s claim and the Appellants’ counter-claim.

Dissatisfied with the said judgment, the Appellant brought this appeal vide a Notice of Appeal filed on the 3rd of August, 2018, which is at pages 1019–1026 of the Record. Also piqued by the judgment, the Respondents filed a Notice of Cross-Appeal on the 2nd of October, 2018 which was deemed properly filed by this Court on the 9th of March, 2020. The Record of Appeal was transmitted to this Court on the 16th of August, 2018.

Parties filed and exchanged Briefs of Argument both in the main appeal and in the cross-appeal. The Appellant’s Brief of Argument in the main appeal was filed on the 21st of February, 2020 and deemed properly filed and served on the 9th of March, 2020. The Brief of Argument of the Respondents was filed on the 10th of March, 2020. The Appellant filed a Reply Brief on 3rd July, 2020 which was deemed properly filed by this Court on the 29th September, 2021. The Respondent/Cross-Appellant also filed a Brief of Argument in the Cross-Appeal on the 3rd of July, 2020 which was deemed properly filed on the 29th of September, 2021.

At the hearing of the appeal, the parties adopted their respective briefs of argument in the appeal and in the cross-appeal.

Since the appeal and the cross-appeal are in law separate appeals, I shall, in line with the trite legal position consider first the appeal before the cross-appeal.

THE APPEAL
ISSUES RAISED BY THE APPELLANT
In the Appellant’s Brief of Argument, the following four issues were distilled for determination:
1. Do Exhibit 7A, 7B, 7C, 7D,7E and 7F lack probative value and should they consequently have been completely disregarded by the Court below in determining this suit?
2. Is Exhibit 6A reliable and credible as forensic backing verification report of the banking transaction between the Appellant and the 1st Respondent and should it, consequently, have been disregarded by the Court below in determining this suit?
3. Did the Respondents adduce any evidence that discharged the Respondents’ onus of proving that the 1st Respondent had fully repaid the credit facilities that Appellant granted to the 1st Respondent in Exhibits 1A, 1B, and 1C and is the Appellant consequently entitled to all its claims against the Respondent?
4. Are the findings at pages 22, 24 and 26 of the judgment of the trial Court correct?

ISSUES RAISED BY THE RESPONDENTS:
The Respondents on the other hand, adopted the four issues raised by the Appellant and also formulated two issues for the cross-appeal which I shall consider when deciding the cross-appeal.

Since parties are at ad idem on the issues for determination in this appeal, I shall also adopt same in deciding the appeal.

ISSUE 1
Do Exhibit 7A, 7B, 7C, 7D, 7E and 7F lack probative value and should they consequently have been completely disregarded by the Court below in determining this suit?

APPELLANT’S SUBMISSIONS ON ISSUE 1:
While arguing on issue 1, learned Counsel for the Appellant pointed out that this issue was raised before the trial Court but the Court failed to consider and make pronouncements on same and this has occasioned a denial of the Appellant’s right to fair hearing. He submitted that vide a subpoena duces tecum, SW1 and SW2 were called and they brought six documents which they placed before the lower Court, but neither of them gave evidence before the lower Court and none of them was sworn as a witness. He added that the said documents were simply placed before the trial Court and same were tendered through DW2 and not SW1 and SW2. It was the submission of learned Counsel that even though there is no doubt that Exhibits 7A-7F are Central Bank of Nigeria (CBN) documents, DW2 was not the maker of Exhibits 7A-7F and as such he could not be cross-examined on the said exhibits. It was submitted that attaching probative value to Exhibits 7A-7F was tantamount to denying the Appellant the right to fair hearing because the Appellant was not given the opportunity to cross-examine on the said exhibits. Counsel contended that a document or exhibit to which the Court cannot attach probative value is worthless, relying on the cases of BUHARI v INEC (2008) 19 NWLR (Pt. 1120) 246 at 415;UGBOGBO v THE STATE (2016) LPELR-42225 CA; and OMISORE v AREGBESOLA (2015) LPELR-24803 SC. Counsel argued that with the lack of probative value of Exhibit 7A-7F, the Respondents’ defence and counter-claim will collapse because Exhibit 6A which the Respondents relied on as the basis for their defence was greatly discredited and as such was manifestly unreliable since it was built on Exhibits 7A-7F which lack probative value.

RESPONDENTS’ SUBMISSIONS ON ISSUE 1:
Arguing per contra, learned Counsel for the Respondents submitted that there were no issues joined regarding Exhibits 7A-7F and as such the need did not arise to call anyone to give evidence on the documents which are public documents. He added that the documents could have been tendered by anyone who paid to have them certified, citing Section 104 of the Evidence Act, 2011. Referring the Court to pages 764–766 of the record of appeal, learned Counsel further submitted that even though SW1 and SW2 who were officers of the CBN were called by the Respondents to place the six CBN documents before the trial Court, the documents were not tendered or admitted through them but through DW2 who admittedly was not the maker and could not answer questions on them. He however, pointed out that in the case of BUHARI v. INEC (supra), it was held that a document is admissible notwithstanding the fact that the maker of the document is unavailable. He argued that the said documents were validly tendered through DW2, referring to page 580 of the record of appeal.

It was also the submission of learned Counsel that the Appellant never disputed that Exhibits 7A–7F were not what they were stated to be, as such the issue of cross-examining SW1 and SW2 regarding the CBN regulations did not arise from the pleadings and same were not in issue. He added that since the Appellant issued a subpoena, all that SW1 and SW2 needed to do was to place the documents before the trial Court and the Appellant cannot now object to the admissibility of the said documents, as the time to object was when the documents were being tendered. He referred to pages 934–935 of the Record of Appeal and cited the cases of ARIORI v ELEMO (1983) 1 SC 13; FATUNBI v OLANLOYE (2004) 12 NWLR (Pt. 887) 229 (SC); and IBORI v AGBI & ORS (2004) 6 NWLR (Pt. 868) 78 at 136. He further submitted that the documents in question, being Central Bank of Nigeria Regulatory Instruments could be judicially noticed by the Court of Appeal and even the Supreme Court, relying on the cases of UNION BANK OF NIGERIA LIMITED v. OZIGI (1994) 2 NWLR (pt.333) at 404; MR.FOLORUNSHO v. ACCESS BANK PLC (2015) LPELR-24281 (CA); and IGNOBIS HOTEL LIMITED v. BENTEC ELECT LTD (2015) 1 NWLR (pt.1441) 504. He urged the Court to resolve this issue against the Appellant.

APPELLANT’S REPLY
In reply to the Respondent’s arguments, the Appellants submitted that their contention in relation to Exhibits 7A–7F was not in relation to admissibility of the documents but in relation to the weight to be attached to them since their maker was not called to enable the Appellant cross-examine him on the documents. They argued that probative value to a document does not arise from the pleadings but when the document is tendered, since pleadings do not constitute evidence. They argued that the decisions in UNION BANK OF NIG. LTD. v OZIGI (supra); and FOLORUNSO OGBOJA v ACCESS BANK PLC (supra), which were relied upon by the Respondents are inapplicable because they did not specifically pronounce on probative value to be attached to CBN documents that were not tendered through their maker.

RESOLUTION OF ISSUE 1:
It is trite that admissibility of a document which is based on relevance is distinct from the probative value that is attached to a document. A document may be admissible and may even be admitted by the Court, yet the said document may have no probative value when weighted in relation to proof of the case before the Court. See: NWABUOKU & ORS v ONWORDI & ORS (2006) LPELR-2082(SC), per Tobi, JSC at pages 20–21, para. F; MOTANYA & ORS v ELINWA & ORS (1994) LPELR-1919(SC), per Kutigi, JSC at page 11, para. A; and U.T.C. (NIG.) PLC v LAWAL (2013) LPELR-23002(SC), per Kekere-Ekun, JSC at pages 31–32, para. F.

It is observed that in the Respondents’ Brief of Argument they seem to have dissipated so much energy on the admissibility of the said Exhibits 7A–7F, while the Appellant’s contention is in relation to the probative value or weight which the trial Court attached to the said documentary exhibits. The Appellant’s argument is that the trial Court ought not to attach probative value to Exhibits 7A, 7B, 7C, 7D, 7E and 7F, since the documents were merely produced by the two subpoenaed witnesses WS1 and WS2 and later tendered through DW2 who was not the maker and who could therefore, not be cross-examined on the documents.

It is pertinent to observe that as shown at pages 934–935 of the Record of Appeal where the trial Court admitted the said documents tendered through DW2 (the Respondents’ expert witness), Exhibits 7A-7F were:
7A – CBN Guide to Bank Charges effective January, 2004;
7B – CBN Monetary Credit Fund Trade and Exchange Policy Guidelines for Fiscal Year 2010/2011;
7C – CBN Revised Guide the Bank Charges 1st April, 2013 forwarded by letter dated May 27th,2013;
7D – CBN Monetary Credit Fund Trade and Exchange Policy Guidelines 2014/2015;
7E – CBN Monetary Credit Fund Trade and Exchange Policy Guidelines 2012/2013; and
7F – CBN Monetary Credit Fund Trade and Exchange Policy Guidelines 2016/2017;

It is settled law that public documents do not have to be tendered by the maker. They are admissible once they are in their original form or they are certified under Section 104 of the Evidence Act, 2011. Thus public documents such as Exhibits 7A–7F listed above are admissible even if tendered by a witness who is not the maker of the document. Indeed, same can be tendered by counsel from the Bar. See Sections 85, 86, 89(e) and 90(c) of the Evidence Act, 2011 and the cases of EMEKA v CHUBA-IKPEAZU & ORS (2017) LPELR-41920(SC), per Nweze, JSC at pages 61–65, para. F; and KASSIM v STATE (2017) LPELR-42586(SC), per Kekere-Ekun, JSC at page 35, para. A.
However, even as a public document is admissible in evidence once it is the original or a certified copy, it is also trite law that the only person who could effectively give evidence as to its contents of a document is the maker of the document. A person who did not make a document is not competent to give any evidence as to its contents, otherwise, his evidence would amount to hearsay evidence. See: IKPEAZU v OTTI (2016) 8 NWLR (Pt. 1513) 38, per Galadima, JSC at page 93, paras. A–B; EMMANUEL v UMANA & ORS (2016) LPELR-40659(SC), per Mohammed, JSC (as he then was) at pages 12–13, para. F; and OMEGA BANK (NIG.) PLC v O.B.C. LTD (2005) LPELR-2636(SC), per Tobi, JSC at page 36, para. B.
From the above, it is clear that, save for the tendering of the certified copies of Exhibits 7A–7F by DW2, in proof of the existence and veracity of the documents, DW2 who is not the maker of the documents could not give any evidence on their contents. In such a situation, no probative value should be attached to the said documents since the Appellant had no chance of cross-examination on the contents of the said documents. See: IKPEAZU v OTTI (supra); EMMANUEL v UMANA & ORS (supra); and OMEGA BANK (NIG.) PLC v O.B.C. LTD (supra).

As for whether the learned trial Judge had placed probative value on the said Exhibits 7A–7F, a look at the 29 page judgment of the learned trial Judge contained at pages 990–1018 of the Record, shows that he did a scanty evaluation of the evidence led by the parties before the trial Court. As regards Exhibits 7A–7F, the learned trial Judge merely stated at page 1004 that “The documents placed before the Court by WS1 and WS2 were also tendered in evidence through DW2 and admitted in evidence as exhibits 7A–7F.” Then at page 1005 of the Record, the learned trial Judge stated that the Plaintiff’s Counsel asked DW2 to show the Court the specific CBN guideline in Exhibit 7A–7E that makes a facility which contains an offer letter (like Exhibit 1A) signed for an accepted by a borrower illegal, and DW2 was unable to show it to the Court but said it is left to the lawyer to decide and that he is not a lawyer.

Again, at page 1007 of the Record, the learned trial Judge stated that the Plaintiffs’ Counsel had referred DW2 to page 11, paragraph 5.0.4A of Exhibit 6A where DW2 stated that unwarranted management fee was debited from the Defendant’s account by the Plaintiff and that in support of Exhibit 6A, DW2 had stated that the management fee was debited from the 1st Defendant’s account and that this is contrary to CBN guide and illegal. But when asked by the Plaintiff’s Counsel to show where same is stated in Exhibits 7A–7F, DW2 referred to page 6, Section 2.9 of Exhibit 7C which states that management fee is a negotiable one of charge.

Apart from the above, I could not find any other place in the judgment of the learned trial Judge where he evaluated the said Exhibits 7A–7F. It also seems to me that in arriving at his decision to dismiss the claim of the Appellant and the counter-claim of the Respondents, the learned trial Judge had not hinged his decision on any specific evidence led by the parties, much less indicate whether or not he attached any probative value to Exhibits 7A–7F in arriving at his decision.

In fact, what the above review of the said documents by the learned trial Judge shows is that DW2 through whom the said exhibits were tendered could neither show where a facility granted through an offer is made illegal in the documents nor establish his claim to excessive management fee using the said documents.

Since itis evident from the record that the said Exhibits 7A–7F were only placed before the Court by WS1 and WS2, the subpoenaed witnesses from CBN, but tendered through DW2 who was not the maker of the documents, I have no hesitation in resolving this issue in favour of the Appellant and against the Respondents. I hold that Exhibits 7A, 7B, 7C, 7D, 7E, and 7F lack probative value and they ought to be completely disregarded by the trial Court in determining the suit.

ISSUE 2
Is Exhibit 6A reliable and credible as forensic banking verification report of the banking transaction between the Appellant and the 1st Respondent and should it, consequently, have been disregarded by the Court below in determining this suit?

APPELLANT’S SUBMISSIONS ON ISSUE 2:
On issue 2, learned Counsel for the Appellant contended that while cross-examining DW2, Exhibit 6A was greatly discredited and as such it became unreliable because it was full of errors, miscalculations and fictitious entries which were based on sentiments and not facts. Learned Counsel urged this Court to take judicial notice of the fact that arithmetic, mathematical and forensic evidence fall within the category of sciences for which guess work, approximation or speculations ought not to be allowed and that the figures must be exact and final. He submitted that there was no evidence before the trial Court showing the correct changed final figure. In support of this submission, he referred the Court to the cases of AGIP NIGERIA LTD v CHIEF C. EZENDU (2010) 1 SC (Part II) 98; IBRAHIM v THE STATE (1986) 1 NSCC 230; and LADOJA v AJIMOBI (2016) LPELR-40658 (SC) at pages 32 and 57. He argued that Exhibit 6A is unreliable because it was totally based on Exhibits 7A-7F and the said exhibits lack probative value. He relied on the case of MACFOY v. U.A.C (1962) AC 158.

RESPONDENTS’ SUBMISSIONS ON ISSUE 2:
In his counter argument on this issue, learned Counsel for the Respondents submitted that the Appellant did not impeach the qualification of DW2 in utilizing Exhibits 7A-7F to scrutinize the operations in the Statement of Account to prepare Exhibit 6A. He pointed out that the Appellant only submitted that 18 holes were punctured into the report which totally discredited Exhibit 6A. Learned Counsel disagreed with the Appellant’s submission and pointed out that DW2 had described himself as an expert during his testimony, referring to paragraph 2 of his Witness Statement on Oath at page 579 of the Record of Appeal. He argued that DW2 under cross-examination was asked to show a debit entry of N1,192,822.97 in paragraph 5.0.11(b) of Exhibit 6A which is at pages 20–24 of Exhibit 6A. He pointed out that even though the sum did not appear in Exhibit 3A which the Appellants have always complained was inaccurate, the sum was shown in Exhibit 8B. He submitted that the trial Court admitted Exhibit 8A to restore credibility of DW2.

Learned Counsel further submitted that the hole punctured by the Appellant in this respect does not exist and has been completely blocked by Exhibit 8B which showed the illegal deduction of N1,192,822.91. He contended that the case of MACFOY v. UAC (1962) AC 158, as cited by Counsel is not relevant to this case, because DW2 put Exhibit 6A on Exhibits 7A-7F and they are proper CBN guidelines from proper custody and so it cannot fail. Learned Counsel also submitted that the facts in LADOJA v. AJIMOBI (supra), are distinct from those in the instant case. He pointed out that in that case, a witness merely dumped the documents at the tribunal expecting the Courts to act on same which is not the situation in the instant case. He argued that the trial Court was never invited to descend into the arena, as the submissions regarding Exhibit 6A were specific on each of the heads of claim and non-compliance with specific paragraphs of the CBN Guidelines. Counsel also submitted that assuming without conceding that the figures in Exhibit 6A changed, there were different heads of claims highlighted by DW2 regarding Exhibit 6A and the claim is not for a total figure, but for each one accepted as proved by the Court. He argued that the Court cannot grant a Claimant what is more than his claim as the Court is not a Father Christmas relying on EKPENYONG & ORS v NYONG (1975) 2 SC (Reprint) 65; KHATOUN v UNITED NIGERIA TEXTILES & ANOR (2014) LPELR-23487 (CA); and FIRST BANK OF NIGERIA PLC v DR. ABDULKADIR ONIYANGI (2000) 6 NWLR (pt.661) page 497 at 513. Referring the Court to pages 657–674 of the Records of Appeal, he submitted that the Appellant was unable to discredit Exhibit 6A and urged the Court to resolve this issue in favour of the Respondents.

APPELLANT’S REPLY ON ISSUE 2:
In reply, the Appellants submitted that the power of a Court to grant less than claimed will only arise after the Claimant had adduced credible evidence before the Court. They added that the report of DW2, the expert witness was by his own admission inconclusive and unreliable as the final figure was incorrect. He argued that the Court cannot descend into the arena to tie each of the bundle of documents to the Appellant’s case. He cited LADOJA v AJIMOBI (supra).

RESOLUTION OF ISSUE 2:
The Record of Appeal shows that in their defence to the Appellant’s claim and in support of their counter claim, the Respondents have called Prince Abioye Olatunji, a Forensic Banking Verification Consultant who testified as DW2, adopted his witness statement on oath dated 19th February, 2016 and tendered a report of the verification which he said he carried out. The report was admitted in evidence by the trial Court as Exhibit 6A. (See pages 932–933 of the Record of Appeal).

It is pertinent to observe that in his review of the said Exhibit6A in the last paragraphs of page 1003 of the Record of Appeal, the learned trial Judge had observed as follows:
DW1 also admitted that Plaintiff withheld information that would have helped the Defendants in auditing the Defendants’ account, and that the Defendants employed the Auditor who used the figures available in the statement of accounts the Defendants received from the Plaintiff to prepare the forensic report Exhibit 6A. DW1 also admitted that the audited report was done after the Plaintiff had instituted this suit.
(underline mine for later emphasis).

It is however, instructive that the learned trial Judge also observed at page 1005 of the Record that DW2 had admitted that he did not request for any document from the Plaintiff but relied on the documents presented to him by the Defendants in preparing Exhibit 6A and that it was left to the bank to call for reconciliation. Further, at page 1006, the learned trial Judge observed that DW2 who had stated at page 11 paragraph 3.03 of Exhibit 6A that the sum of N9,500.00 debited twice by the Plaintiff from the 1st Defendant’s account for searches at the Land Registry was too much, could not provide any evidence to support his assertion that search at Land Registry is not more than N5,000.00. The learned trial Judge then proceeded to note at page 1007 of the Record that DW2 was unable to substantiate his assertion in page 11, paragraph 5.0.4 of Exhibit 6A that unwarranted management fee was illegally debited from the 1st Defendant’s account by the Plaintiff contrary to CBN guidelines; rather, by page 6 of Exhibit 7C the management fee was negotiable.

The learned Judge also noted that DW2 was unable to establish his assertion that the Plaintiff must notify the Defendants if it increased interest rate when paragraph 2.7 of Exhibit 1A and paragraph 2.3 of Exhibit 1B, the accepted facility offer letters to which DW2 was referred, state that the Plaintiff can increase the interest rate without recourse to the Defendants. The learned trial Judge also noted at page 1008 of the Record that DW2 had admitted that the debit entry of N1,192,822.91 made on 2nd November, 2011 which he imputed in paragraph 5.0.11(b) at page 20 of Exhibit 6A is not there, and therefore admitted that if that is removed from the counter claim of the Respondents of N102,649,027.88, that figure must change.

Further, in his evaluation of the said Exhibit 6A at pages 1011–1012 of the Record, the learned trial Judge stated as follows:
4. The testimony of DW1 and DW2 that the Plaintiff is to refund the sum of N102,649,027.88 stated in the conclusion of Exhibit 6A, (pages 23 to 24 para 7.03) i.e. the forensic audited report of the 1st Defendant cannot be correct for the following reasons:
1. DW2 admitted during cross-examination that the sum of N1,192,822.91 on page 20 para 5.0.11(b) of Exhibit 6A is not in the statement of account of the 1st Defendant and a deduction of same from the purported balance due to the 1st Defendant must of a necessity change the sum of money being counterclaimed by the 1st Defendant.
2. DW2 was unable to show the Court the specific CBN guidelines that forbids parties to adhere to agreements between them evidenced by Exhibits 1A, 1B and 1C upon which the said Exhibit 6A was largely founded.

In stating how the weight of evidence can be estimated, the Supreme Court, per Tobi, JSC held in BUHARI v INEC (2008) LPELR-814(SC) at page 116, para. B, that: “In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by the Evidence Act, regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.”
See also: AJAGBE v IDOWU (2011) LPELR-279(SC), per Muhktar, JSC (as he then was) at page 30, para. B.

In the instant case, it is clear from the Record and the above review/evaluation of Exhibit 6A by the learned trial Judge, that Exhibit 6A is an inaccurate and unreliable document as forensic banking verification report. Added to that is the fact that it was prepared after the suit was already instituted and was pending before the trial Court as admitted by DW1. (see the underlined segment in the trial Court’s review above), In other words, DW2, who made Exhibit 6A while the suit was pending before the trial Court, had everyincentive to misrepresent facts as clearly revealed in the above evaluation of the testimony of DW2 in relation to the said document. In fact, even the learned trial Judge clearly stated that he found the exhibit incorrect.

It is in the light of this that I also resolve this issue in favour of the Appellant. I hold that based on the printed Record of Appeal, Exhibit 6A is not reliable and credible as forensic banking verification report of the banking transaction between the Appellant and the 1st Respondent and same ought to have been disregarded by the trial Court in determining the suit.

ISSUE 3
Did the Respondents adduce any evidence that discharged the Respondents’ onus of proving that the 1st Respondent had fully repaid the credit facilities that Appellant granted to the 1st Respondent in Exhibits 1A, 1B, and 1C and is the Appellant consequently entitled to all its claims against the Respondent?

APPELLANT’S SUBMISSIONS ON ISSUE 3:
While making his argument on the third issue, learned Counsel for the Appellant submitted that this issue is the crux of the suit because if the 1st Respondent had not fully repaid thecredit facilities granted to it by the Appellants vide Exhibits 1A, 1B and 1C, it can only mean that the Respondents owe the Appellants the unpaid balance of the loan. Counsel further argued that the trial Court failed to consider and make pronouncement on this issue. To buttress this point, he referred to the pleadings and the evidence of PW1, DW1 and DW2 and paragraph 7.02 of Exhibit 6A and submitted that DW1 and DW2 had admitted that the unpaid balance the Respondents are owing the Appellant stood at N91,764,236,00. He pointed to page 1003 of the record of appeal.

Relying on Sections 131 and 135 of the Evidence Act, 2011 and the cases of MAXIMUM INSURANCE CO. v OWONIYI (1994) 3 NWLR (Pt. 331) 178 at 192 paras A-C; AONDOAKAA v AJO (1999) 5 NWLR (Pt. 602) 206 at 222, paras. C–D; IKE v UGBOAJA (1993) 6 NWLR (Pt. 301) 539 at 545, para. B, on the burden of proof, Counsel submitted that he is mindful of the fact that the onus of proof is not static. He pointed out that in the present case, the borrower had admitted receipt and utilization of the loan and the onus will now be on the borrower to prove repayment of the said loan by producing documentslike receipts, deposit slips or any other document showing that the bank received such payments from the borrower. In support of this submission, counsel cited SALEH v BANK OF THE NORTH LIMITED (2006) 6 NWLR (Pt. 976) 316 at 327 or LPELR-2463 (SC); F.C.M.B v ROPHINE NIG. LTD (2017) LPELR-42704 (CA); andAKANMU v CO OPERATIVE BANK PLC (2006) 2 NWLR (Pt. 963) 82 at 101, paras. F–G, and 102, paras. E–F.

In respect of claim 35(i), the Appellant contended that Exhibits 1A, 1B and 1C were accepted by the 1st Respondent through the 2nd Respondent and that vide Exhibit 3C, the 1st Respondent was informed of the accruing interest which stood at N85,813,174.82 as at 6th August 2012 and that DW2 admitted that the 1st Respondent’s account with the Appellant was debited which had accumulated to the sum of N91,764,236,00 as at 3rd December, 2012. Learned Counsel argued that the 1st Respondent who is the principal debtor has failed to discharge the onus of proving repayment of the admitted sum. It was also the submission of counsel while making reference to Exhibit 1A, that the interest accrued to the sum of N124,851,229.92 as at 7th May, 2014.Counsel further submitted that the 2nd Respondent is liable for the debt claimed by the Appellant since the 2nd Respondent guaranteed the credit facilities granted to the 1st Respondent. He referred the Court to paragraph 12 of the Statement of Claim. He submitted that in the event that this Court finds the 1st Respondent (who is the principal debtor) is liable for the debt being claimed by the Appellant, the 2nd Respondent as guarantor is also jointly and severally liable along with the 1st Respondent. Counsel cited the cases of AFRICAN INSURANCE DEVELOPMENT CORPORATION v NIGERIA LIQUIFIED NATURAL GAS LIMITED (2000) 4 NWLR (Pt. 653) 494 at 505 para. G, 506, para. A; SALAWU MOTOR HOUSE LTD v LAWAL (1999) 9 NWLR (Pt. 620) 692 at 706; and FORTUNE INTERNATIONAL BANK PLC v PEGASUS TRADING OFFICE (2004) 4 NWLR (Pt. 863) 369 at 389. He referred to the claim in 35(ii) and argued that the suit and transaction between the parties involved a contract of loan and that same was reduced into writing vide exhibits 1A-1C which were all accepted by the Respondents. Counsel urged the Court to hold that the contract between the Appellant and the 1st Respondent is inExhibit 1A, relying on the case of ALFOTRIN LTD v A.G FEDERATION (1996) 9 NWLR (Pt. 475) 634 at 663 paras. A–B.

Learned Counsel urged the Court to hold that there is an existing contract between the Appellant and the Respondents having regard to the contents of Exhibits 1A-1C, and that the Appellants are entitled to 22% interest per annum, making the sum claimed to be N124,851,229.92 from 7th May 2014 up till the day of judgment. Referring to claim 35 (ii) of the Statement of Claim, he argued that by virtue of Order 23 Rule 5 of the Federal High Court (Civil Procedure Rules) 2009, the lower Court had the power to award post-judgment interest at a rate of not more than 10% per annum. Counsel urged this Court to award same in favour of the Appellant.

On claim 35 (iii), particularly in paragraphs 15 and 17 of the statement of claim, that the original copies of title deeds of three properties of the 2nd Respondent were pledged particularly the one located at 5, Bode Mustafa Road, off Aderupoko Street, Olokemeji Extension, Ibara Housing Estate, G.R.A. Abeokuta, Ogun State as security for the credit facilities granted to the 1st Respondent andthe Respondents did not deny same. Counsel further submitted that it is trite law that where evidence is un-contradicted the Court is duty bound to accept same and act upon it. He relied on DUROSARO v AYORINDE (2005) 8 NWLR (Pt. 927) 407 at 427, paras F–G; ARABAMBI v ADVANCE BEVERAGES INDUSTRY LTD. (2005) 19 NWLR (Pt. 959) 1 at 33, paras G; FEDERAL MORTGAGE BANK OF NIGERIA v ADESOKAN (2000) 11 NWLR (Pt. 677) 108 at page 120; OGUNDIANI v ARABA (1978) NSCC (Vol. 11) 334 at 344, and submitted that the act of the 1st Respondent created an equitable mortgage in favour of the Appellant. Counsel further submitted that if this Court holds that the Respondents are indebted to the Appellant, the Court is duty bound to make an order granting leave to the Appellant to sell the said property in order to liquidate the judgment debt in addition to all accrued interest thereon. He relied on the case of OKUNEYE v FIRST BANK OF NIGERIA PLC (1996) 6 NWLR (Pt.457) 744 at 756, paras. E–F. He urged the Court to enforce the mortgage by an order granting leave to the Appellants to sell the said property.

RESPONDENTS’ SUBMISSIONS ON ISSUE 3:
On hispart, learned Counsel for the Respondents referred to pages 797–798 797-798 of the record of appeal and submitted that the onus of proof is on the Appellant to prove the indebtedness of the Respondents, and that it is only when the Appellant had done so that the onus of proof will shift to the Respondents. He relied on Sections 131 and 12 of the Evidence Act, 2011 and the case of AGBOOLA v. UBA PLC (2011) 11 NWLR (Pt. 1258) 375 at 402, and urged this Court to hold that the Appellant had failed to prove that the Respondents are indebted to it. He further argued that the statement of account relied upon is by Section 51 of the Evidence Act, 2011 not enough, especially when the Respondents have contended that the statement of account did not reflect the true state of the accounts of the 1st Respondent. In support of this submission, he referred to the cases of BIEZAN EXCLUSIVE GUEST HOUSE LTD & ORS v UNION HOMES SAVINGS & LOANS LTD (2010) LPELR-3876 (CA; YESUFU v ACB (1981) 1 SC 74; and SKYE BANK PLC v JADESOLA KUDUS (2011) LPELR 4962 (CA). He added that the evidence adduced by the Appellant did not comply with Section 51 of the Evidence Act,stating that vide Exhibit 1A-1C, the Respondents could only prove that facilities were granted and nothing more, relying on pages 472 and 1131-1135 of the record of appeal. He urged the Court to hold that the Appellant failed to prove that the Respondents were indebted to the Appellants to tune of the sum as claimed by the Appellant. He relied on Section 132 of the Evidence Act, 2011, and ALLIED BANK NIG LTD v AKUBUEZE (1997) 7 NWLR (Pt. 509) 376.

It was also the submission of counsel that the authorities of ISHOLA v SOCIETE GENERALE BANK (supra) and SALEH v BANK OF THE NORTH (supra), do not relate to circumstances where the bank was deducting repayments from customer’s current account. He posited that the 1st Respondent is entitled to be made aware of any debit passed into its account by the Appellant vide a debit advice and that the Appellant failed to do so and as such, the 1st Respondents did not know how much was debited into its account and the reason for the debit. Referring to page 570 of the Record of Appeal, Counsel submitted that Exhibits 7A-7F were tendered through DW2 to support the fact that CBN guidelines were violated by the Appellantand that Exhibit 6A was prepared by DW2 utilizing the available statement of account and working the operations in line with Exhibits 7A-7F. Counsel also made reference to pages 655–698 of the record to further buttress this argument.

Counsel submitted that the Court has no business embarking on a voyage of discovery as that responsibility was on the Appellant. It was also the argued that the trial Court was right when it held that the Appellant did not place material evidence before the Court to entitle the Appellant to recover the amount claimed and that the Appellant should have produced a well calculated, properly operated statement of account before the trial Court as proof of the said claims. He added that the cases of AFRICAN INSURANCE DEVELOPMENT CORPORATION v NIGERIA LIQUIFIED NATURAL GAS LIMITED (supra); and OKUNEYE v FIRST BANK OF NIGERIA PLC (supra), cited by the Appellant are not applicable to the instant case because the Appellant did not produce credible evidence to establish any default by the Respondents. Counsel further stated that for the issue of liquidation to arise, there has to be proof of indebtedness and the Appellantdid not prove same.

On the post-judgment interest, learned Counsel submitted that the post-judgment interest claimed by the Appellant in this suit lacks relevance as it was not granted at the trial Court and that same applies to the calling in of the 2nd Respondent’s security. Counsel finally urged the Court to hold that from the totality of the evidence adduced before the trial Court, the Appellant failed to prove that the Respondents are indebted to the Appellant and as such, the Court has no duty to grant leave to the Appellant to sell the property in question. He urged the Court resolve this issue in favour of the Respondents.

APPELLANT’S REPLY ON ISSUE 3
In reply, the learned Counsel for the Appellant submitted that in debt recovery cases, the onus of proving that the lender disbursed the loan sum to the Borrower is on the Lender. He pointed out that contrary to the assertion of the Respondents that there was no evidence of disbursement of the loan to them by the Appellant, the Respondents have admitted in paragraph 10 of DW1’s witness statement on oath at page 574 of the Record of Appeal that the Respondents serviced(repaid) the facilities granted by the Appellant. He argued that the Respondents could only have serviced the facilities if the facilities had been disbursed to them by the Appellant. In addition, learned Counsel pointed to page 902 of the Record of Appeal where in answer to questions from the Appellant’s Counsel, DW1 had affirmed that N32.5 Million was disbursed in 2009 and that exact date as 29th July, 2009. Counsel submitted that this admission had established beyond any reasonable doubt that the loans were disbursed to the Respondents.

Learned Counsel contended that where the defendant/borrower has admitted receipt or disbursement of the loan that is in dispute, the onus of proving repayment of the loan/debt shifts to the defendant/borrower. He cited and relied on the cases of EZEKIEL OKOLI v MORECAB FINANCE NIG. LTD (2007) LPELR-2463(SC); AKALONU v OMOKARO (2003) 8 NWLR (Pt. 821) 190 at 204, paras. G–H; KENFRANK (NIG.) LTD. v U.B.N. PLC (2002) 15 NWLR (Pt. 789) 46 at 73, para. C. Learned Counsel submitted that the Respondents never discharged the onus of proving that they repaid the loan and DW1 repeatedly admitted that the Respondentsdid not have any evidence of repayment before the trial Judge. He referred to pages 902–906 of the Record of Appeal.

Counsel also referred to the finding of the learned trial Judge at page 1016 of the Record to the effect that the 1st Defendant indeed took loans from the Plaintiff and that this was admitted by the 2nd Defendant, as well as the trial Court’s finding that the said loan is yet to be liquidated in full by the 1st Defendant. He pointed out that the Respondents have not appealed against that finding of the trial Judge and the finding remains valid and binding on the parties and this Court as evidence that the Respondents received the loans in issue and had not repaid same. He cited EDILCON NIG. LTD. v UBA PLC (supra). He urged this Court to give effect to that finding of fact. He argued that Section 51 of the Evidence Act, 2011 is inapplicable to this case because, as shown above, apart from the statement of account, the evidence of the Respondents’ indebtedness was adduced at the trial Court through DW1’s admissions.

On the Respondents’ argument over the difference between the sum of N91,764,236.00 statedin the statement of account (Exhibit 3A) and the sum of N124,851,229.92 claimed in the Appellant’s Statement of Claim, learned Counsel submitted that the earlier sum was the amount owed the Appellant by the Respondents as at 3rd December, 2012 which was the amount DW2 (the expert witness) admitted was owed to the Appellant as disclosed in Exhibit 3A. He added that in the Statement of Claim the latter sum of N124,851,229.92 was the amount outstanding as at 7th May, 2014 as a result of continuous accrual of interest at the rate of 22%, which is a difference of two years. Counsel also contended that settled law is that if the Appellant claimed the sum of N124,851.229.92 but the evidence in the Statement of Account (Exhibit 3A) coupled with the admission of DW2 in his report have established only the lower sum of N91,764,236.00, the Court is enjoined to award the lower sum. He cited and relied on FIRST BANK OF NIGERIA PLC v DR. ABDULKADIR ONIYANGI (2000) 6 NWLR (Pt. 661) 487 at 513, para. A. He further submitted that DW1 and DW2 have admitted that the Respondents owed the sum of N91,764,236.00 to the Appellant as at 03/12/2012 and there was no need to prove adebt which has been repeatedly admitted by the Respondents’ own witnesses as well as the forensic audit report. He referred this Court to pages 569, para. 28; 577, para. 24; 581, para. 13 and 676, para. 7.02 line 6 of the Record of Appeal. He also relied on the cases of NDUKWE v LPDC (2007) 5 NWLR (Pt. 1026) 1 at 56, para. G; and JUKOK INTL. LTD. v DIAMOND BANK PLC (2016) 6 NWLR (Pt. 1507) 55 at 108, para. A and 113, para. G, to the effect that facts which are admitted are regarded as established, requiring no further proof.

Counsel also pointed out that in paragraphs 6.36–6.37 of their Brief of Argument, the Respondents have conceded the fact that the 1st Respondent deposited the title deed of the mortgaged property with the Appellant.

RESOLUTION OF ISSUE 3:
Before embarking on the resolution of this issue, it is pertinent for me to first consider its import as couched. My understanding is that the issue seeks for a determination as to whether the Respondents have failed to adduce evidence that they have fully repaid the credit facilities granted to them by the Appellants in Exhibits 1A, 1B and 1C, and whether consequent upon that failure the Appellants are entitled to their all their claims against the Respondents. With this understanding in mind, I shall commence by examining the law as it relates to burden of proof in loan recovery cases.

Therefore, in order to properly resolve this issue of whether the Respondents discharged their burden of showing that they have repaid the loan facilities, there is the need to first examine whether the Appellant has discharged its own burden of establishing the grant and disbursement of the said credit facilities to the Respondents.

I shall commence this task by first examining the evaluation and findings of the learned trial Judge on these issues, in order to determine whether the evaluation and findings were justified by the evidence led, since as an appellate Court, this Court can only interfere with the evaluation of evidence and the findings thereon by the trial Court, where same are found to be improper or perverse. See: OWIE v IGHIWI (2005) LPELR-2846(SC), per Tobi, JSC at page 30, para E.

At pages 996–997 of the Record, the learned trial Judge reviewed Exhibits 1A, 1B and 1C and stated that the said exhibits were offer letters of credit facilities by the Appellant, First Bank of Nigeria Limited to the 1st Respondent, Royal Pavilion Hotel for the sums of N42,500,000.00, N62,500,000.00 (renewal and re-structuring) and N6,700,000.00, at interest rates of 22%, 15% and 18%, respectively, and that all the said offer letters were duly accepted by the 2nd Respondent, Olufemi Obadina and his wife Anthonia Obadina, as Chairman and Director of the 1st Respondent.

At page 998 then the trial Judge noted that upon cross-examination, PW1, the Appellant’s witness had admitted that when the Respondents demanded for additional N20 Million, Exhibit 1B was made by enhancing the N42.5 Million granted in Exhibit A to become N62.5 Million through the grant of the N20 Million to the Respondents.

Then at page 999 of the Record, the learned trial Judge stated as follows:
What I find curious is as follows:
1. The Plaintiff did not tender in evidence the Defendant’s request for the N20 Million loan.
2. The said Exhibit 1B did not make any reference to an additional loan of N20Million or an enhancement of an earlier loan of N42.5 Million.
3. The said Exhibit B states that the loan is a term loan (Renewal) in the sum of N62,500,000.
Exhibits 1A and 1C clearly evidenced an offer of the loan stated therein and accepted by 2nd Defendant and his wife on behalf of the 1st Defendant. It is however not clear what Exhibit 1B represents, whether or not it is an enhancement of the loan stated in Exhibit 1A as stated by PW1 in cross-examination.

Then at page 1003 of the Record, the trial Court also noted that:
DW1 upon cross-examination also admitted that despite the fact that Exhibit 1A was written to Royal Pavilion Hotel and Exhibit 1B and 1C were addressed to Royal Pavilion Nigeria Limited, he is the owner and chairman of the two companies and he is not denying that he took the loans in Exhibits 1A, 1B, 1C addressed to both companies and he will accept responsibility for whatever he signed for.

Further, at page 1005, the trial Judge stated that:
“DW2 testified upon cross-examination that they only saw the offer letter for N42.5 Million (Exhibit 1A) and there was no offer letter for the N20 Million and that it was unsolicited loan as stated in page 3, para. C of Exhibit 6A despite that he admitted that the 2nd Defendant and another Director of 1st Defendant, Anthonia Obadina, signed acceptance of the three offer letters, Exhibits 1A, 1B and 1C. I must note here that DW1 accepted liability for all the offer letters he signed for on behalf of the 1st Defendant and other companies belonging to him.”

Then at page 1010, the learned trial Judge found in relation to exhibits 1A, 1B and 1C as follows:
“Upon my careful consideration of the evidence before this Court in this case, I must state as follows:
1. There is no doubt that the Defendants took loans from the Plaintiff as evidenced by Exhibits 1A, 1B and 1C which DW1 testified that he signed for as Chairman and owner of the two companies to whom the loans were given.

Then at page 1016 of the Record, he concluded his findings by stating that:
“I have no doubt in my mind that the 1st Defendant took loans from the Plaintiff. It is in evidence that the 2nd Defendant admitted this fact.”

It is settled law that in a loan recovery dispute between a bank and its customer, the usual questions under consideration are: (i) was the Defendant granted the loan? (ii) If so, how much was he granted? (iii) What was the agreed rate of interest? (iv) how much if any has the Defendant repaid? See: FBN PLC v OBEYA (1998) 2 NWLR (Pt. 537) 205 at 207; A.C.B. PLC v NWANNA TRADING STORES (NIG) LTD (2007) 1 NWLR (Pt. 1016) 596; and ASIKPO v ACCESS BANK (2015) LPELR-25845(CA), per Otisi, JCA at page 40 paras. C.

It is therefore clear from the oral evidence of PW1 as well as Exhibits 1A, 1B and 1C, that the Appellant was able to establish that it granted loans to the 1st Respondent in the sums of N42.5 Million (Exhibit 1A), a renewal of the loan in Exhibit 1A and enhancement with additional loan of N20 Million making a total of N62.5 Million (Exhibit 1B), and another loan of N6.7 Million (Exhibit 1C), and that same was secured with a personal guarantee of the 2nd Respondent and a deposit of properties among which was the one at 5, Bode Mustapha Road, Off Aderupoko Street, Olokemeji Extension, Ibara Housing Estate, GRA, Abeokuta, Ogun State.

The Record shows that the Appellant also tendered through PW1 the statement of account of the Respondents as Exhibit 3Ashowing the indebtedness of the Respondents. These facilities granted in Exhibits 1A, 1B and 1C were not only admitted by the Respondents as found by the learned trial Judge above, he had in his review of the testimonies at page 1003 of the Record noted that DW1 had agreed that the balance he owed the Appellant was N91,764,236.00 but stated that the bank owed him N102,649,027.88 as a result of unwarranted debits. The learned Judge had also noted at page 1009 of the Record that DW2, the Respondent’s witness had stated that as at 13th June, 2012 when the Respondents stopped operating the account it had N91,764,236.00 which was never paid back by the Respondents and that the account ought to have been classified and interest on same suspended.

A look at the Record of Appeal shows that indeed the Respondents’ witnesses have admitted that the Respondents were owing the Appellant the total sum of N91,764,236.00 as at 03/12/2012. [See paragraph 24 of DW1’s witness statement on oath at page 577 of the Record of Appeal and paragraph 13 of DW2’s witness statement on oath, as well as paragraph 7.02 of DW2’s Exhibit 6A].

As for the agreed interest rates, these were clearly stated in the said Exhibits 1A, 1B and 1C and were noted by the learned trial Judge in his analysis and finding which I have also quoted above.

As for the fourth question of how much the Defendant had repaid if any, the settled law is that the burden is on an admitted debtor to show that he has paid off the indebtedness. Mere denial of the indebtedness is untenable in law, a defendant must state why he is not indebted in full or in part. See: SANUSI BROTHERS (NIGERIA) LTD V COTIA C.E.I.S.A. (2000) LPELR-3006(SC), per Wali, JSC at pages 16–17, para. E; COLLINS COMMERMEX NIGERIA LTD & ANOR v SKYE BANK PLC (2019) LPELR-46892(CA), per Garba, JCA (as he then was) at page 37, para. C; and FCMB v ROPHINE (NIG) LIMITED & ANOR (2017) LPELR-42704(CA), per Nimpar, JCA at pages 10–12, para. E.

In the instant case, the record of proceedings of the trial Court of 13th June, 2017 shows that when DW1 was asked to show to the trial Court any evidence that the Respondents have repaid interest from August, 2009 or the principal sum from February, 2010, he could not show any evidence that the 1stRespondent had paid. At pages 903 of the Record of Appeal, DW1 admitted that he did not have any evidence of payment for any facility claiming that the repayment was deducted from him and that was the reason why he brought forensic expert.

In other words, the Respondents did not show any evidence that they repaid the facilities granted the 1st Respondent by the Appellant in Exhibits 1A, 1B and 1C for which they admitted owing the sum of N91,764,236.00 as at 03/12/2012. Rather, what the Respondents did was to allege manipulation of their account by the Appellant and brought DW2 who stated that he undertook an audit of the Respondents’ accounts during the pendency of the suit and tendered Exhibit 6A, the forensic audit report, to the effect that the Respondents had paid the said facilities and it is the Appellant that is owing the Respondents the sum of N102,649,027.88 as a result of excessive charges.

As shown in resolving issue 2 however, the learned trial judge had found the forensic report in Exhibit 6A as incorrect and unreliable. I had also quoted the part of the evaluation of evidence where the learned trial Judge had indicated that DW1had admitted that the Respondents took the loan and accepted responsibility for it. From pages 1004 to 1009, the learned trial Judge reviewed the evidence of DW2 and at pages 1011–1012 he found as follows:
“The testimony of DW1 and DW2 that the Plaintiff is to refund the sum of N102,649,027.88 stated in the conclusion of Exhibit 6A (pages 23–24 para. 7.03) i.e. the forensic audited report of the 1st Defendant cannot be correct for the following reasons:
1. DW2 admitted during cross-examination that the sum of N1,192,822 on page 20 para. 5.0.11(b) of Exhibit 6A is not in the statement of account of the 1st Defendant and a deduction of same from the purported balance due to the 1st Defendant must of a necessity change the sum of money being counter-claimed by the 1st Defendant.
2. DW2 was unable to show the Court the specific CBN guidelines that forbids parties to adhere to agreements between them evidenced by Exhibits 1A, 1B and 1C upon which the said Exhibit 6A was largely founded.”

It is therefore clear from the record and the above findings of the trial Court that the Respondents did not discharge the evidential burden of proof which had oscillated to their side. The Respondents failed to show with credible evidence that they have repaid the facilities granted them vide Exhibits 1A, 1B and 1C, for which they admitted they owed the Appellant a total sum of N91,764,236.00 as at 03/12/2012.

On the second segment of this issue relating to whether the Appellant is entitled to all its claims against the Respondent, I observe that the resolution of this segment is invariably tied to the correctness or otherwise of the findings of the trial Court at pages 22, 24 and 26 of the judgment which the Appellant has made the 4th and final issue in this appeal. I shall therefore consider the second segment of this issue while resolving the 4th issue. Suffice it for me to state that for all the reasons aforementioned, the first segment of this third issue is resolved in favour of the Appellants and against the Respondents. The Respondents have failed to discharge the burden of proof on them to show that they have repaid the facilities granted them by the Appellant.

ISSUE 4
Are the findings at pages 22, 24 and 26 of the judgment of the trial Court correct?

APPELLANT’SSUBMISSIONS ON ISSUE 4:
Arguing on issue four, Counsel for the Appellant submitted that there was no material evidence placed before the trial Court to substantiate its findings at pages 22, 24 and 26 of the judgment of the trial Court. On the finding at page 22 of the judgment (page 1011 of the Record), learned Counsel pointed out that the Respondents never pleaded or adduced evidence that the Appellant opened several accounts without their knowledge as held by the learned trial Judge. Rather, PW1 only stated under cross-examination, the procedure for opening Debit Reserve Account and a Loan Account and never admitted that any such account was opened without the knowledge or consent of the Respondents. He pointed out that PW1 had categorically stated that the claim for N124,851,229.92 was the debt owed by the 1st Respondent only as at 7th May, 2014, while the 2nd Respondent’s personal debt was N8,000,000.00 and this evidence was never contradicted. He submitted that the trial Court’s finding was unsupported by any evidence adduced at the trial.

As for the trial Court’s finding at page 24 that it behoves the Plaintiff to establish the sum of money utilized by the 1st Defendant and the interest charges and the fees paid for searches, etc, Counsel submitted that the finding is contrary to the position of law that where the borrower admits receipt and utilization of the loan the onus is on him to prove the repayment of the loan. More so as the Respondents have failed to prove the allegations of overcharges of interest, fees, expenses, etc. He argued that the lower Court erred when it placed the burden on the Appellant.

As for the finding at page 26 of the judgment (page 1015 of the Record) that all the charges entered as debit in the Statement of Account against the Defendants must be proved specifically to entitle the Appellant to claim them, learned Counsel submitted that the trial Court ignored the Statement of Account (Exhibit 3A) tendered by the Appellant through PW1 which contained all the debit entries/debit balances and the fact that the Respondents did not dispute or challenge any of the entries in Exhibit 3A by cross-examining PW1 on it. He added that since the Respondents have admitted through DW1 and DW2 as well as Exhibit 6A that they owed a debt of N91,764,236.00 to the Appellants, the issue of entries is of no moment; more so when the learned trial Judge had held at page 27 of his judgment that he believed that the loan is yet to be liquidated.

RESPONDENTS’ SUBMISSIONS ON ISSUE 4:
On the finding at page 22 of the judgment, learned Counsel for the Respondents submitted that the Appellant created several accounts for the Respondents without their consent and argued that PW1 and DW2 were ad idem on that point. He contended that the act of the Appellant to create an account in the Respondents’ name without filling the necessary forms violated the provisions of the law and that was clearly faulted by the trial Court. He urged the Court not to disturb the findings of the trial Court as they were well rooted and uncontroverted. He referred to page 1013 of the Record of Appeal. He insisted that the trial Court was right to hold that the Appellant must prove the debit entries in the statement of account, referring to page 1015 of the Record of Appeal. He referred to a letter dated 3rd September, 2013 at page 631 of the Record.

As for the finding at page 24 of the judgment at page 1015 of the Record, Counsel argued that the trial Court was correct to hold that the Appellant must prove all the debit entries in the Statement of Account (Exhibit 3A). He referred to Section 51 of the Evidence Act and submitted that a Statement of Account alone is insufficient.

APPELANT’S REPLY ON ISSUE 4:
Counsel for the Appellant reiterated that there was neither pleading nor evidence which showed that the Appellant opened several accounts for the Respondents without their knowledge or consent as found by the trial Court. He added that the Respondents have admitted in paragraphs 6.36–6.37 of their Brief of Argument that the 1st Respondent deposited the title deed of the mortgaged property with the Appellant. He urged the Court to allow the appeal.

RESOLUTION OF ISSUE 4:
This issue requires a resolution of the propriety or otherwise of the trial Court’s findings at pages 22, 24 and 26 of the judgment (pages 1011, 1013 and 1015 of the Record).

The finding made by the trial Court at page 22 of the judgment which is at page 1011 of the Record of Appeal is that:
3. The creation of several accounts by the Plaintiff for theDefendants without the Defendants’ knowledge or consent and the consolidation of the account of the 2nd Defendant into the account of the 1st Defendant without the Defendants’ knowledge or consent makes the Plaintiff’s claim of N124,851,229.92 as the 1st Defendant’s indebtedness unrealistic. To my mind, it is clear that there is a distinction between the 1st Defendant (a company) and the 2nd Defendant (an individual). There must be a distinction between the accounts of both Defendants. A consolidation of the 2nd Defendant’s account into the account of the 1st Defendant and opening of several accounts for the Defendants without their knowledge and consent makes that figure (N124,851,229.92) claimed by the Plaintiff as the 1st Defendant indebtedness untenable.

I have examined the evidence on record and the above finding of the trial Court. As rightly pointed out by the Appellant, there is no evidence or material before the trial Court to substantiate the above finding that the Appellant opened several accounts for the Respondents without their knowledge or consent. The Respondents have neither alleged such in their pleadings norled any evidence to that effect and no evidence to that effect was extracted under cross-examination from PW1 (the Appellant’s sole witness). Under cross-examination, PW1 had only explained the procedure for opening Debit Reserve Account and a Loan Account but never admitted that any such account was opened without the Respondents’ knowledge or consent. Indeed at page 846 of the Record of Appeal, learned Counsel had while cross-examining PW1 asked him whether the Appellant had any other Statement of Account apart from the one tendered in Exhibit 3A and PW1 answered in the negative at page 847 of the Record. Then upon question from the Respondents’ Counsel as to what is a debit reserve account, PW1 proceeded to explain same at page 847 of the Record, and when asked to distinguish between debit reserve account and loan account, PW1 also explained same on page 848 of the Record. The Respondents have neither alleged in their pleadings that the Appellant opened such accounts for the Respondents without their knowledge or consent nor was there any evidence led to that effect.

It is settled law that findings of a trial Court which is notborne out of the pleadings and evidence led by the parties is said to be wrong and perverse. In ODOM & ORS v PDP & ORS (2015) LPELR-24351(SC), the Supreme Court per Muhammad, JSC explained a perverse finding of fact as follows:
“A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the Court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of Justice. A decision being reviewed may as well be found to be perverse on account of the trial Court’s wrongful application of the law to correctly ascertained facts.”
See also: LAGGA v SARHUNA (2008) LPELR-1740(SC), per Tobi, JSC at pages 44–45, Para. A; and DALA v AYODELE (2014) LPELR-24621(CA), per Wambai, JCA at pages 34–35, para. E.

It is therefore evidently clear that the finding of the trial Court at page 22 of its judgment (at page 1011 of the Record), that the Appellant created several accounts without the knowledge or consent of the Respondents,being extraneous to the pleadings and evidence of the parties, is perverse. I so hold.

As for the findings of the trial Court at pages 24 and 26 of its judgment (pages 1013 and 1015 of the Record of Appeal), that it behoved upon the Appellant to prove the sum of money utilized by the Respondents, interest charges applied to the loan, any money or fees that are due or payable by the 1st respondent, and that the Appellant must prove all the charges entered as debit in the Statement of Account, it seems to me that the trial Court has not only ignored the fact that the Appellant tendered Exhibits 1A, 1B and 1C, the letters of offer of credit facilities by the Appellant to the 1st Respondent, the 1st Respondent’s Statement of Account in Exhibit 3A, as well as the admissions DW1 and DW2 and from all of which the learned trial Judge reached a conclusion that the 1st Respondent indeed took the loans from the Appellant and that the 2nd Respondent had admitted that fact, especially the admission that they owed the sum of N91,764,236.00. The Respondents have also not cross-examined PW1 on any of the entries in Exhibit 3A which he tendered and have thereforenot challenged that evidence of the Appellant.

In fact, the learned trial Judge had after all the evaluation of the oral and documentary evidence led by the parties, found at pages 1016–1018 as follows:
“I have no doubt in my mind that the 1st Defendant took loans from the Plaintiff. It is in evidence that the 2nd Defendant admitted this fact.
I believe that the said loan is yet to be liquidated in full by the 1st Defendant. It is in evidence that the Defendants had stopped operating the 1st Defendant’s account since 13th Jun e, 2012 even though its account had a debit balance.”

Having so found as aforementioned the learned trial Judge had then ignored the settled position of law that where a borrower admits the receipt and utilization of the loan, the onus is on him to prove repayment of the loan: UNION BANK v RAVIH ABDUL & CO. LTD. (supra); FBN v NWOKOLO (supra); NEJO v ACCESS BANK & ORS (supra); and FIRST INLAND BANK v CRAFT 2000 LIMITED & ANOR (supra).

As rightly submitted by the Appellant, since the trial Court had found that the Respondents have admitted being indebted to the Appellant to the tune ofN91,764,236.00, the issue of proof of entries by the Appellant was of no moment. This much was acknowledged by the learned trial Judge at page 1010 of the Record of Appeal where, after finding that the Respondents indeed took the loans from the Appellant, he stated that:
“It is trite law that an admission of facts needs no further proof. See Section 28 of the Evidence Act, 2011. Also see: Henry Odeh Vs Federal Republic of Nigeria 13 NWLR (Pt. 1103) Pg. 1 and Akibu Hassan Vs. The State (2001) 15 NWLR (Pt. 735) Pg. 18.”

The findings by the learned trial Judge at pages 24 and 26 of the judgment (at pages 1013 and 1015 of the Record of Appeal are therefore evidently perverse to the evidence led before the trial Court. I so find and hold.

Ordinarily, this should resolve issue 4 in favour of the Appellant. But I have reserved the second segment of issue 3 to be considered with this issue, having been inevitably linked to the propriety of the trial Court’s findings of fact to be determined under this issue.

The second segment of that issue is whether as a consequence of the Respondents’ failure to adduce evidence of repayment of theloan facilities granted them by the Appellant, the Appellant is entitled to its claims against the Respondents.

As already shown above, the learned trial Judge had found that the Respondents have failed to show that they have repaid the loans granted to them by the Appellant. He had also found that the Respondents’ allegation of manipulation of their account by the Appellant which they tried to prove through Exhibit 6A was unsubstantiated. It was then surprising that the learned trial Judge proceeded to hold at pages 1017-1018 of the Record as follows:
“However, it is unfortunate that the Plaintiff has not placed sufficient evidence before this Court in support of its claim for the sum of N124,851,229.92.”

There is no doubt that based on the evidence on record, the above conclusion reached by the learned trial Judge to the effect that the Appellant has not placed sufficient evidence before the trial Court in support of the Appellant’s claim, is perverse and has evidently occasioned miscarriage of justice.

It is pertinent to state that the powers of the Court of Appeal to determine appeals is by way of re-hearing on theprinted record of appeal, by examining the whole of the oral and documentary evidence tendered before the trial Court. This Court is therefore entitled to evaluate the evidence and may reject conclusions of the trial Judge from facts which do not follow from the evidence or may be regarded as perverse. See: Section 15 of the Court of Appeal Act and the cases ofJADESIMI v OKOTIE-EBOH (1986) 1 NWLR (Pt. 16) 264, per Karibi-Whyte, JSC at page 274 and 275; INAKOJU & ORS v ADELEKE & ORS (2007) LPELR-1510(SC), per Akintan, JSC at pages 211-212, paras. E-C, and per Tobi, JSC at pages 96-97, paras. F-A; ZIRA v AWOLOWO & ANOR (2007) LPELR-11853(CA), per Peter-Odili, JCA (as he then was) at page 32, para. D and TOKODE v NJC (2021) LPELR-55916(CA), per Mohammed, JCA at pages 67–68, para. A.

The Record of Appeal shows that the Appellant had claimed to have granted credit facilities to the 1st Respondent which was personally guaranteed by the 2nd Respondent, who had also secured same with an equitable mortgage of some properties among which was the one known as 5, Bode Mustapha Road, Off Aderupoko Street, Olokemeji Extension, Ibara Housing Estate,GRA, Abeokuta, Ogun State. In proof, the Appellant had tendered through PW1, the following documents in proof of their assertion:
(i) Exhibits 1A, 1B and 1C: There were the Letters of Offer of the facilities the Appellant granted the 1st Respondent in the sums of N42.5 Million, N62.5 Million and N6.7 Million, respectively. PW1, the Appellant’s sole witness had also explained that in Exhibit PW1B, the previous loan of N42.5 Million granted to the 1st Respondent in Exhibit 1A, was restructured and an additional loan of N20 Million granted thus reflecting a total loan of N62.5 Million in Exhibit 1B. Of note is that DW1, the 2nd Respondent and
(ii) Exhibits 2A, 2B, 2C, 2D and 2E: There were the title deeds and tripartite legal mortgage documents deposited by the Respondents with the Appellant thus creating an equitable mortgage in order to secure the facilities. Instructively, these were tendered and admitted by the trial Court without objection from the Respondents (See page 831 of the Record). PW1 who tendered the said documents was also not cross-examined by the Respondents on the said documents. The failure to cross-examine a witness on materialevidence amounts to a tacit acceptance of the truth or correctness of that evidence:GAJI & ORS v PAYE (2003) LPELR-1300(SC), per Edozie, JSC at page 20, para. B; and CAMEROON AIRLINES v OTUTUIZU (2011) LPELR-827(SC), per Rhodes-Vivour, JSC at pages 36–37, para. F.
(iii) Exhibit 3A: This was the 1st Respondent’s Statement of Account covering the period 8th July, 2009 to 4th December, 2012 tendered through PW1. The certificate of compliance with Section 84 of Evidence Act was admitted as Exhibit 3B. It is also noteworthy that the Respondents never challenged the said Exhibit 3A or cross-examined PW1 on any of the entries contained in it. The said Exhibit 3A shows that the 1st Respondent owes the Appellant a total sum of N124,851,229.92 as at 7th May, 2014. The failure to challenge Exhibit 3A under cross-examination clearly amounts to a tacit approval of its correctness and truth: GAJI & ORS v PAYE (supra); and CAMEROON AIRLINES v OTUTUIZU (supra).
(iv) Exhibit 3C: This is a letter of demand by the Appellant to the Respondent demanding the payment of outstanding principal loan and interest thereon which stood at N85,813,174.82 asat 6th August, 2012. This was also admitted without objection and PW1 was not cross-examined on it, meaning that the Respondents accepted its correctness: GAJI & ORS v PAYE (supra); and CAMEROON AIRLINES v OTUTUIZU (supra).

From my careful perusal of the printed Record of Appeal, it is clear that the Appellant had led oral and documentary evidence before the trial Court which had established that it granted loan facilities to the Respondents and that as at the 7th of May, 2014, the said outstanding principal loan and interest yet to be repaid by the Respondents was N124,851,229.92. Not only that, I have in the course of resolving the three preceding issues in this appeal, shown and copiously quoted the findings of the learned trial Judge relating to the admission of liability for the said credit facilities by the Respondent’s witnesses (DW1 and DW2). It therefore bears no repetition.

Whilst resolving the preceding issues in this appeal, I have shown how the learned trial judge had evaluated the above evidence which the Respondents led in attempt to prove their allegation of manipulation of account and their counter-claim against the Appellant for N102,649,027.88 and found same to be unmeritorious. In particular, I have quoted the trial Court’s findings in relation toExhibit 6A, the audit report on the account of the 1st Respondent wherein the Respondents claimed that the Appellant had overcharged the 1st Respondent’s account to the tune of N194.4 Million and that when the amount of N91,764,236.00 which they acknowledged they owe the Appellants is subtracted from the said sum, the Appellants owe them N102,649,027.88 (an amount more than the total principal loan and interest which they admitted they owe the Appellants on the credit facilities granted them by the Appellant). Of note is also the admission by DW1, the 2nd Respondent, who during cross-examination that confirmed that the said audit report in Exhibit 6A was prepared by them after the suit was filed and was already pending before the trial Court.

In the instant appeal, the Record of Appeal at pages 902–906 shows that when DW1, the 2nd Respondent was repeatedly asked under cross-examination to show any evidence of full repayment of the facility he could not produce any evidence of cheques, deposit slips or money transfer or any documentary evidence of any sort to show such repayment. It was therefore clearly evident that all the Respondents had done was to employ the usual tactics of bank debtors who try to avoid their repayment obligations. On realizing that the Appellant had filed a loan recovery suit they engaged DW2 to come up with Exhibit 6A which they claimed was an audit report of manipulation and overcharge on the account and instead ridiculously claimed that it was the Appellant that owed them N102,649,027.88. See: TADE ABIMBOLA (NIG,) LTD. v FBN PLC (2021) LPELR-55773(CA), where this type of attitude of bank debtors was deprecated.

As for the equitable mortgage by the Respondents of the properties among which was the one at 5, Bode Mustapha Road, Off Aderupoko Street,Olokemeji Extension, Ibara Housing Estate, GRA Abeokuta, Ogun State, it is also evident from the Record as borne by Exhibits 2A, 2B, 2C, 2D and 2E that DW1, the 2nd Respondent had given three mortgages to the Appellant to secure the facilities granted to the 1st Respondent. This was also admitted by DW1 during cross-examination at pages 912–913 of the Record of Appeal.

From the evidence in the printed Record of Appeal which I have re-evaluated above, it is my considered view that, contrary to the finding of the trial Court at page 1017 of the Record that the Appellant “has not placed sufficient evidence before this Court in support of its claim for the sum of N124,851,229.92, the Appellant had established with credible oral and documentary evidence that the Respondents were indebted to it to the tune of N124,851,229.92 as at 7th May, 2014 and the Respondents have failed to show that they have fully repaid their indebtedness.

It is in consequence of this that I resolve this last segment of the third issue in favour of the Appellant and hold that the Appellant is entitled to its claims against the Respondents. Accordingly, I hereby set aside that finding of the trial Court and the order of the Court dismissing the Appellant’s claims. In its place, the Appellant’s claims are hereby granted. Accordingly, it is hereby ordered as follows:
1. That the Respondents shall jointly and severally pay to the Appellant:
(i) The sum of N124,851,229.92 (One Hundred and Twenty Four Million, Eight Hundred and Fifty-One Thousand, Two Hundred and Twenty Nine Naira, Ninety Two Kobo), being the amount outstanding as at 7th May, 2014 on both the principal and interest on the finance facilities granted to the 1st Respondent by the Appellant.
(ii) Interest on the aforesaid sum at the rate of 22% per annum from the 7th day of May, 2014 until judgment and thereafter at the rate of 10% per annum until final liquidation of the judgment sum.
2. Sale of the 2nd Respondent’s property located at No. 5, Bode Mustapha Road, Off Aderupoko Street, Olokemeji Extension, Ibara Housing Estate, GRA Abeokuta, Ogun State valued at One Hundred and Five Million, Two Hundred Thousand Naira Only (N105,200,000.00), with forced sale value of Seventy Three Million, Six Hundred Thousand Naira Only(N73,600,000.00), being security for the facility granted the 1st Respondent over which the Appellant has an equitable mortgage.

THE CROSS-APPEAL:
In this cross-appeal, the Respondents/Cross-Appellants are essentially challenging the trial Court’s decision dismissing their counter-claim against the Appellant/Cross Respondent in the sum of N102,649,027.88. The Respondents/Cross Appellants’ Notice of Cross-Appeal which was filed on 2nd October, 2018, was deemed properly filed on 9th March, 2020. Parties also filed and exchanged briefs of argument in the cross-appeal. The Respondent/Cross Appellant’s Brief of Argument the following two issues were distilled:
1. Whether the trial Court was in error, given all the evidence placed before him, to have dismissed Respondents’ Counter Claim for the sum of N102,649,027.88 or award whatever sum His Lordship found proved by the Respondents.
2. Whether the trial Court was not in error when His Lordship failed to grant the declaration sought by Respondents that acts of the Appellant’s staff and agents on 1st Respondent’s account constituted a gross violation of the Central Bank of Nigeria Guidelines.

On its part, the Appellant/Cross Respondent distilled a single issue of:
Whether the lower Court was right to have dismissed the Cross Appellants’ counter claim for the sum of N102,649,027.88.

In paragraph 4.1 of the Appellant/Cross Respondent’s Brief of Argument, learned Counsel for the Appellant/Cross Respondent had tried had challenge the competence of issue 2 formulated by the Respondent/Cross Appellant, arguing that it does not emanate from any of the grounds 2 and 3 contained in the Notice of Cross Appeal. On scrutiny of the said issue however, I am of the view that since that issue essentially deals with alleged misconduct of the Appellant/Cross Respondent’s staff, it can conveniently be distilled from ground 2 of the Notice of Cross Appeal. I so hold and discountenance the Appellant/Cross Respondent’s challenge to that issue. However, since the two issues raised by the Respondent/Cross Appellant can be comfortably be subsumed into the sole issue raised by the Appellant/Cross Respondent, I shall adopt the latter’s sole issue in determining the cross appeal.

SUBMISSIONS OF THE RESPONDENTS/CROSS APPELLANTS:
Learned Counsel submitted that the finding of DW2 contained in Exhibit 6A, the audited report was uncontroverted in that the Appellant/Cross Respondent failed to cross-examine DW2 on the report, and as such the credibility of DW2 and the report in Exhibit 6A remained intact. He relied on BOLANLE ABEKE v. THE STATE (2007) 3 SC (PT II) at Page 112; FERGUSON v. COMM. FOR WORKS, LAGOS (1999) 4 NWLR (pt.638) 315 at 328; CHUKWU v. D’ALA (1999) 6 NWLR (pt.608) 674 at 681.

It was also the submission of Counsel for the Respondents/Cross-Appellants that by Exhibit 4B and 3E, there was overwhelming evidence that on the 31st March, 2012, a staff of the Appellant/Cross Respondent in Imo branch had fraudulently used N3,100,000.00 out of the funds of the Respondents/Cross-Appellants without authorization. He argued that the trial Court ought to have held that leg 1 of the counter-claim was proved by the Respondents/Cross-Appellants, in view of the fact that the Appellant/Cross-Respondent had denied the Respondents/Cross-Appellants the use of N197,413,263.88 on which the Respondents/Cross-Appellants areentitled to interest thereon. In support of his submission, Counsel relied on Section 3.2.4(g) of the Central Bank Monetary, Credit, Foreign Exchange, Policy Guidelines for fiscal year 2010-2011 and page 1110 of the Record of Appeal. He further submitted that the Respondents/Cross-Appellants have endured excessive charges for several months and as such, they are entitled to 20% interest being the CBN prevailing monetary rate at that time. He added that the Cross-Appellants have proved that they are entitled to N50,000,000.00 as general damages as a result of the manipulation of the Respondents/Cross Appellants’ account by the Appellant/Cross-Respondent that owes the Respondents/Cross-Appellants. He urged this Court to order the release of the title deeds of the Respondents/Cross-Appellants by the Appellant/Cross Respondent. Relying on the case of AGBEJE v. AJIBOLA & ORS (2002) 9 NSCQR 1 at page 15, paras G-H, he submitted that the Appellant/Cross Respondent had failed to prove its claims against the Respondent/Cross-Appellant and urged this Court to dismiss the appeal, allow the cross-appeal and grant the counter-claim of the Respondent.

SUBMISSIONS OF THE APPELLANT/CROSS RESPONDENT:
Learned Counsel to the Appellant/Cross Respondent began his counter argument by submitting that the second issue raised by the Respondents/Cross-Appellants is not linked to any of the three grounds of appeal and as such is incompetent and ought to be struck out. He cited APATIRA v L.I.L.G.C (2006) 17 NWLR (Pt. 1007) 46 at 73, para. A.

Learned Counsel submitted that the trial Court was right to have dismissed the counter-claim of the Cross-Appellants because the basis upon which the trial Court made its findings was not challenged on appeal. He submitted further that the Cross-Appellants only based their counter claim on the report in Exhibit 6A and same was adjudged as incorrect by the trial Judge. He referred to page 973 of the Record of Appeal and relied on the case of ADO v. THE STATE (2017) 15 NWLR (pt.1587) at 81 paras B-D. He added that the act of the Cross-Appellants is tantamount to putting something on nothing and expecting same to stand. He cited MACFOY v. U.A.C (1962) AC 158. Counsel urged the Court to reject the Cross-Appellant’s brief on the ground that they are all fresh argument son fresh issues that were not raised at the trial Court.

In response to paragraph 8.3 of the Cross-Appellants’ Brief, Counsel submitted that the issue raised therein is not relevant because the Appellant had refunded that particular sum of money to the 1st Respondent’s account on 25th July, 2012 which was three years before the institution of this suit. He referred to pages 586, 846, and 719 of the Record of Appeal. He urged this Court to dismiss the cross-appeal and affirm the decision of the trial Court dismissing the counter-claim of the Cross-Appellants.

CROSS APPELLANT’S REPLY:
In reply, learned counsel to the Cross-Appellants submitted that issue 6 was not distilled from ground 2 of the Cross-Appeal and that the decision of Appellant’s counsel to place reliance on the case of APATIRA v. L.I.L.G.C (supra), is unfounded. Counsel further submitted that during cross-examination DW2 only submitted that the debit entry of N1,192,822.91 does not reflect in Exhibit 3A but is reflected in Exhibit 8B which was the finding of the trial Court in the ruling delivered on 15th February, 2018. It was also the submission of counsel that it is the entire decision of the trial Court that gave rise to this appeal and therefore, counsel was wrong to have relied on the case of ADO v. THE STATE (supra), as the facts therein are not the same with the facts of the instant case. He added that the submission that fresh issues were raised in paragraph 6.25 A-R of the Cross Appellant’s Brief is also erroneous because same were addressed in the Defendant’s Final Written Address as well as the Reply Address at the trial Court, referring to pages 749, and 792-749 of the Record of Appeal. He argued that the case of ATAKPA v EREBOR (supra), cited by Counsel is not applicable because there were no fresh issues raised, as same were pleaded in paragraph 27 of the Statement of Defence at the trial Court. Counsel referred this Court to pages 568-569 of the Record of Appeal.

Counsel further argued that the trial Court did not reject Exhibit 6A as submitted by Counsel to the Appellant/Cross Respondent. He urged this Court to dismiss the appeal of the Appellant for lacking in merit and allow the cross-appeal of the Respondent/Cross-Appellants.

RESOLUTION OF THE SOLE ISSUE IN THECROSS APPEAL:
In this cross-appeal, the Respondents/Cross-Appellants are essentially seeking for an order of this Court setting aside the decision of the trial Court dismissing their counter claim and in its place awarding the sums proved by the Cross-Appellants together with accrued interests as contained in Exhibit 6A.

The Record of Appeal shows that before the trial Court, the Respondents/Cross-Appellants had in defence to the Appellant’s claim and in support of their counter-claim, asserted the manipulation and excessive charges on the 1st Respondent’s/Cross Appellant’s account by the Appellant/Cross Respondent to the tune of N194,413,263.88 as a result of which they claimed that it was the Appellant/Cross-Respondent that owed the Respondents/Cross-Appellants the sum of N102,649,027.88.

The Respondents/Cross-Appellants essentially relied on Exhibit 6A, an audit report of the 1st Respondent’s account made by one Prince Abioye Olatunji, a Forensic Banking Verification Consultant who testified as DW2 and adopted his witness statement on oath dated 19th February, 2016 and tendered the said Exhibit 6A. (See pages 932–933 of the Record of Appeal).

Whilst considering issue 2 in the main appeal, I had shown how the learned trial Judge had evaluated the evidence of DW2 as well as Exhibit 6A and reached the conclusion that the evidence of DW2 and Exhibit 6A prepared by him are not believable. Suffice it for me to state that in his evaluation of Exhibit 6A at page 1003 of the Record of Appeal, the learned trial Judge had observed that DW2 who prepared the report in Exhibit 6A had admitted that the Respondents/Cross-Appellants employed him and that he used the figures available in the documents given to him by the Respondents/Cross-Appellants to prepare the forensic report in Exhibit 6A, and that he did the said report after the Appellants had instituted the suit at the trial Court.

Further, at page 1006, the learned trial Judge had observed that DW2 who had stated at page 11 paragraph 3.03 of Exhibit 6A that the sum of N9,500.00 debited twice by the Plaintiff from the 1st Defendant’s account for searches at the Land Registry was too much, could not provide any evidence to support his assertion that search at Land Registry is not more than N5,000.00.The learned trial Judge then proceeded to note at page 1007 of the Record that DW2 was unable to substantiate his assertion in page 11, paragraph 5.0.4 of Exhibit 6A that unwarranted management fee was illegally debited from the 1st Defendant’s account by the Plaintiff contrary to CBN guidelines; rather, by page 6 of Exhibit 7C the management fee was negotiable. He similarly found that DW2 was unable to establish his assertion that the Plaintiff must notify the Defendants if it increased interest rate when paragraph 2.7 of Exhibit 1A and paragraph 2.3 of Exhibit 1B, the accepted facility offer letters to which DW2 was referred, state that the Plaintiff can increase the interest rate without recourse to the Defendants.

The learned trial Judge also found at page 1008 of the Record that DW2 had admitted that the debit entry of N1,192,822.91 made on 2nd November, 2011 which he imputed in paragraph 5.0.11(b) at page 20 of Exhibit 6A is not contained in Exhibit 3A, and that if same is removed from the counter-claim of the Respondents of N102,649,027.88, that figure would change.

Then at pages 1011–1012 of the Record, the learned trial Judge had concluded as follows:
4. The testimony of DW1 and DW2 that the Plaintiff is to refund the sum of N102,649,027.88 stated in the conclusion of Exhibit 6A, (pages 23 to 24 para 7.03) i.e. the forensic audited report of the 1st Defendant cannot be correct for the following reasons:
1. DW2 admitted during cross-examination that the sum of N1,192,822.91 on page 20 para 5.0.11(b) of Exhibit 6A is not in the statement of account of the 1st Defendant and a deduction of same from the purported balance due to the 1st Defendant must of a necessity change the sum of money being counterclaimed by the 1st Defendant.
2. DW2 was unable to show the Court the specific CBN guidelines that forbids parties to adhere to agreements between them evidenced by Exhibits 1A, 1B and 1C upon which the said Exhibit 6A was largely founded.

Apart from the above evaluation of the learned trial Judge, it is pertinent to observe that DW2 who prepared exhibit 6A admitted under cross-examination at pages 940–941 of the Record that contrary to the best banking and financial practices, he did not request for documents from the Appellant/Cross Respondent Bank. He also admitted that in this situation where the account is in dispute, the said Appellant/Cross Respondent Bank would be the party who would have the relevant documents being the custodian of those documents. (See page 941 of the Record).

It is also important to point out that when in proof of its claim the Appellant/Cross Respondent tendered Exhibit 3A, the 1st Respondent’s Statement of Account, which the Respondents/Cross-Appellants claim to be manipulated and excessively charged, they raised no objection to same (see pages 823–833), and the Respondents/Cross-Appellants did not cross-examine PW1, the Appellant/Cross Respondent’s sole witness on the excessive charges which they alleged was made on the 1st Respondent’s Account. Their cross-examination was limited to the N20 Million additional loan granted in Exhibit 1B, the N3.1 million withdrawn from the 1st Respondent’s account and then asked PW1 to explain what is meant by debit reserve account which PW1 explained.

Indeed, contrary to the argument of the Respondents/Cross-Appellants that the Appellant/Cross Respondent did not challenge the report, the record of lengthy cross-examination of DW2 which is from pages 935-970 shows that the Appellant/Cross Respondents thoroughly took DW2 to task on the said Exhibit 6A and the said Exhibit 6A was severely discredited in my view. Added to that is the admission of DW2 that he prepared Exhibit 6A after the suit was already instituted and was pending before the trial Court. (See the underlined segment in the part of the trial Court’s review of Exhibit 6A which I quoted above while considering issue 2 in the main appeal).

After a careful consideration of the evidence led by the parties as contained in the printed Record of Appeal, I am in agreement with the conclusion of the trial Court that Exhibit 6A upon which the Respondents/Cross-Appellants essentially based their counter-claim was unreliable and not credible having been discredited under cross-examination. I hold that same was rightly disregarded by the trial Court in dismissing the Respondent/Cross Appellant’s counter-claim. In consequence, I resolve the sole issue in this cross-appeal against the Respondents/Cross-Appellants and dismiss the cross-appeal for lack of merit. The trial Court’s decision dismissing the counter-claim of the Respondents/Counter claimants is hereby affirmed.

In the end, the appeal succeeds while the cross-appeal is hereby dismissed as aforementioned. Cost of N200,000.00 is hereby awarded in favour of the Appellant/Cross Respondent against the Respondents/Cross-Appellants.

JIMI OLUKAYODE BADA, J.C.A.: I read before now, the lead judgment of my learned brother, ABBA BELLO MOHAMMED, JCA, just delivered. I agree with and adopt his Lordship’s reasoning and conclusion in this appeal as mine.

I have also perused the records of appeal and the briefs of argument filed and exchanged by the parties.

Nevertheless, I am of the view that the contention of the Respondents that it was the Appellant that owed them cannot be correct. It is the Respondents who failed to show how they repaid the indebtedness to the Appellant. This is because repayment of bank loan is usually demonstrated by showing entry of lodgments either by cheques or cash, or bank draft by the customer or his agents in the account and honoured or credited by the bank; or by exhibiting bank tellers evidencing lodgments to that effect.

In this appeal,the DW1 i.e., the 2nd Respondent when asked under cross-examination to show evidence of full repayment of the loan facility, he could not produce any evidence of cheques, deposit slips or money transfer or any documentary evidence to show such repayment.

See – OKPOKO COMMUNITY BANK LTD. & ANOTHER VS. IGWE (2013) 15 NWLR PART 1376 PAGE 167 AT 186.

In the circumstance, I am of the view that the Appellant had established with credible evidence that the Respondents were indebted to it to the tune of N124,851,229.92 as at 7/5/2014.

In view of the foregoing and for fuller reasons in the lead judgment, I am also of the view that there is merit in this appeal and it is allowed by me while the Cross-appeal is dismissed.

I abide by the consequential orders, including order as to cost in the lead judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the leading judgment just delivered by my learned brother, Abba Bello Mohammed JCA, and I agree with his reasoning and conclusion that this appeal is immensely meritorious and ought to be allowed, while the cross-appeal is bereft of any merit. Therefore, having also readthe Records of Appeal and the briefs of argument filed and exchanged by the parties, I equally join in allowing the appeal and dismissing the cross-appeal and on the same terms as set out in the leading judgment. I abide by the consequential order and the order as to costs made in the leading judgment.
Appeal allowed. Cross appeal dismissed.

Appearances:

Ayoola Ajayi, Esq., with him, Oluwaseun Ojo, Esq. For Appellant(s)

Olabode Elemide, Esq., with him, OreOfe Akinsooto, Esq. For Respondent(s)