FIRST BANK OF NIGERIA PLC v. MANAGEMENT EDUCATION AND TRAINING LIMITED
(2019)LCN/13258(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of May, 2019
RATIO
APPEAL: DUTY OF THE APPELLATE COURTS ON QUESTIONS OF FACTS
It is trite law that the function of an appellate Court in an appeal on question of facts is to ascertain whether the trial Court properly evaluated the evidence and whether it correctly approached the assessment of the evidence and whether the admitted evidence was sufficient to support the decision arrived at. See GAJI vs. PAYE (2003) LPELR (1300) 1 at 15-16, VAB PETROLEUM INC vs. MOMAH (2013) LPELR (19770) 1 at 30, AGBONIFO vs. AIWEREOBA (1988) 1 NWLR (PT 70) 325 and ANYAOKE vs. ADI (1986) 3 NWLR (PT 31) 731 at 742.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPEAL: APPELLATE COURTS WILL NOT INTERFERE IN THE JUDGMENT OF A TRIAL COURT EXCEPT WHEN THE JUDGMENT IS NOT RIGHT
An appellate Court will therefore not interfere if the judgment is right, since a misdirection which does not occasion injustice will be immaterial and would not affect an otherwise unimpeachable decision: AYENI vs. SOWEMIMO (1982) 5 SC 60 at 73, OJENGBEDE vs. ESAN (2001) LPELR (2372) 1 at 31 and NDAYAKO vs. DANTORO (2004) LPELR (1968) 1 at 32.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
BANKING LAW: A BANK STATEMENT OF ACCOUNT IS NOT SUFFICIENT EXPLANATION OF THE DEBIT AND LODGEMENTS IN CUSTOMER ACCOUNT
It seems to me settled law that a bank statement of account is not sufficient explanation of the debit and lodgements in a customers account in order to charge the customer with liability for the overall debit balance shown in the statement of account. Any bank claiming a sum of money on the basis of the overall debit balance in a statement of account must adduce both documentary and testimonial evidence to show how the overall debit balance was arrived at. Investigation is not the function of a Court, so there must be testimonial evidence from a bank official familiar with the account explaining how the debit balance was arrived at. SeeYUSUF vs. ACB (1976) 1-2 SC 49, WEMA BANK vs. OSILARU (2007) LPELR (8960) 1 at 29-30, HABIB NIGERIA BANK LTD vs. GIFTS UNIQUE (NIG) LTD (2004) 15 NWLR (PT 896) 405, BIEZAN EXCLUSIVE GUEST HOUSE LTD vs. UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR (PT 1246) 246, BILANTE INTERNATIONAL LTD vs. NDIC (2011) 15 NWLR (PT 1270) 407 and ALBIA TRADING GMBH vs. MADUNKA INTERNATIONAL LTD (2013) LPELR (22312) 1 at 30-32.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ADMISSION: WHAT MAKES AN ADMISSION HAVE EVIDENTIAL VALUE
The law is ensconced that for an admission against interest to have probative or evidential value, it must be clear, precise, unequivocal and free from ambiguity: UDO vs. OKUPA (1991) 5 NWLR (PT 191) 365 at 386, OSEMWENKHA vs. OSEMWENKHA (2012) LPELR (9580) 1 at 17 and OBU vs. OKIGWE (2018) LPELR (43938) 1 at 27-28.
RECORDS OF APPEAL: PARTIES AND THE COURTS ARE BOUND BY RECORDS OF APPEAL
It is trite law that parties and the Court are bound by the Records of Appeal and it is the Records of Appeal that the Court will rely upon in the determination of the appeal. The Court will not depart from the Records and any extraneous facts not contained in the Records would be mere conjecture and the Court cannot rely or act on the same. See GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 38-39 and TRANSOCEAN SHIPPING VENTURES PRIVATE LTD vs. MT SEA STERLING (2018) LPELR (45108) 1 at 9.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ADJOURNMENTS: WHEN A COURT DOES NOT SIT ON A PARTICULAR DATE, PARTIES SHOULD BE NOTIFIED OF THE NEXT HEARING DATE
By all odds, it is settled law that when a Court does not sit on a particular date for whatever reasons, parties should be notified of the next hearing date. See A-G RIVERS STATE vs. UDE (2006) 17 NWLR (PT 1008) 436. The service of hearing notice is fundamental since the object of the service of hearing notice is to let the party know the date on which the matter will come up. Where however a party in a case has knowledge and is aware of an adjourned date or can be fixed with such knowledge, if such a party decides to absent himself, he does so at his own peril since he can be imputed with knowledge of the hearing date. See ONAH vs. OKOM (2011) LPELR (9057) 1 at 25 and NNPC vs. NWAFOR (2017) LPELR (42287) 1 at 44-45. In S & D CONSTRUCTION vs. AYOKU (2011) LPELR (2965) 1 at 24-25, Adekeye, JSC held:
It is trite law that hearing notice will not be issued or served on parties who already know or are reasonably presumed to have known of the date on which a matter is slated for hearing.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
RE-ADOPTION OF ADDRESS NOT OCCASIONED BY AN ISSUE IN THE ORIGINAL FINAL ADDRESS: CONSEQUENCE
Any such re-adoption of address which is not occasioned by any issue that was not covered in the original final address and does not add any new points to the initial final address is a mere facade that is designed to avoid the stipulations of Section 294 (1) of the 1999 Constitution and should be seen for what it is, mere window dressing that would not re-open the computation of the period for delivery of judgment. See ONYEKUMNARU vs. FRN (2018) LPELR (46040) 1 at 20-21, OLUSANYA vs. UBA (2017) LPELR (42348) 1 at 9-11 and OKON vs. ITA (2010) LPELR (9010) 1 at 15 -16.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUDGMENT: SECTION 294(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS REGARDS THE PERIOD WITHIN WHICH JUDGMENT SHOULD BE DELIVERED
The main thrust of Section 294 (1) of the 1999 Constitution is for a Court to deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. As already stated, the date on which final addresses was adopted is not apparent on the cold printed records. But, if arguendo, it was on 17th February, 2014 as submitted by the Appellant, then the judgment of 5th May 2015 was delivered outside the period stipulated in Section 294 (1) of the 1999 Constitution. But this will not eo ipso render the judgment a nullity. For the said decision to be rendered a nullity, the Appellant has to establish that the said decision occasioned a miscarriage of justice: OFULUE vs. OKOH (2014) LPELR (23218) 1 at 22-23.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUDGEMENT: PROVISION OF SECTION 294(5) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS REGARDS JUSGMENTS
Section 294 (5) of 1999 Constitution provides as follows:-
The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal arises from a banker/customer relationship. The Respondent is a customer of the Appellant bank. It applied for a banking facility from the Appellant using the share certificates of its Director as the security for the facility. The facility was eventually not disbursed by the Appellant on the ground that on account of the downturn in the stock market the company shares were not adequate security. The Respondent contending that the Appellant was negligent in exercising its duty of care to it as a result of which it had suffered damages in its business instituted proceedings at the High Court of Lagos State in SUIT NO. LD/944/2009: MANAGEMENT EDUCATION AND TRAINING LIMITED vs. FIRST BANK OF NIGERIA PLC claiming the following reliefs:
(a) SPECIAL DAMAGES of N7,792,466 to be paid by the defendant to the claimant for loss of the value of the shares from 9th September, 2008 that defendant acknowledged receiving the shares as security to 16th February, 2009 that the claimant lost hope of securing the facility.
(b) GENERAL DAMAGES of N5Million to be paid by the defendant to the claimant.
(c) AN ORDER directing the defendant to return the entire share securities to the claimant.
The Appellant as Defendant at the lower Court counterclaimed against the Respondent for the following reliefs:
1. The sum of N592,133.01 being the outstanding overdrawn facilities granted to the Claimant as at May 18, 2010 with interest on the said outstanding overdrawn facilities at the rate of 20% per annum from 28/11/2007 till Judgment and thereafter at the same rate until Judgment sum is fully satisfied.
2. The sum of N1,533,491.24DR being the outstanding overdrawn facilities granted to the 2nd Defendant as personal loan with interest on the said outstanding balance at the rate of 20% per annum from 28/11/2007 till Judgment and thereafter at the same rate until Judgment sum is fully satisfied.
3. The cost of this action is assessed by the Court.
The parties filed and exchanged pleadings and the case was subjected to a plenary trial at which testimonial and documentary evidence was adduced. In its judgment delivered on 5th May 2015, the lower Court entered judgment for the Respondent and dismissed the Appellants counter claim. The Appellant being dissatisfied with the decision of the lower Court appealed against the same by Notice of Appeal dated 11th May, 2015. The judgment of the lower Court is at pages 266-290 of the Records, while the Notice of Appeal is at pages 302-311 of the Records.
The Records of Appeal was transmitted on 4th January, 2016 and was by order of this Court made on 22nd November 2016 deemed as having been properly compiled and transmitted. The parties filed and exchanged briefs of argument. The Appellants Brief was filed on 16th March 2017 but deemed as properly filed on 5th July 2017. The Respondents Brief was filed on 10th August 2017 but deemed as properly filed on 30th April 2018. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellant formulated five issues for determination as follows:
1. Whether the trial Court was right when it held that there was a contract between the parties to borrow or grant loan facility to the tune of N10 million?
2. Whether the trial Court was right when it ordered the Appellant to return forthwith the shares and stock deposited with CSCS (Central Security Clearing System Limited)?
3. Whether the trial Court was right when it held that the Counter-Claim having not been proved is dismissed?
4. Whether the Appellants constitutional right guaranteed by Section 36 of the 1999 Constitution was not breached when the learned trial judge foreclosed the right of the Appellant to cross-examine the Respondents only witness on 4th June 2012?
5. Whether the trial Court was right in delivering his Judgment outside the 3 months allowed by the Constitution of the Federal Republic of Nigeria, 1999?
The Respondent on its part distilled six issues for determination, namely:
1. WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THERE WAS CONTRACT BETWEEN THE APPELLANT (CLAIMANT) AND RESPONDENT (DEFENDANT) IN GRANTING OF LOAN FACILITY.
2. WHETHER THE DEFENDANT WAS IN POSSESSION OF CLAIMANTS SHARES FOR THE PURPOSE OF THE N10MILLION LOAN.
3. WHETHER THE COUNTERCLAIM AGAINST OMOTOSHO BAMIDELE OLATUNJI (DEFENDANTS TO COUNTERCLAIM CAN STAND FOR NON PERSONAL SERVICE OF THE COUNTERCLAIM ON HIM
4. WHETHER THE COUNTERCLAIM AGAINST MANAGEMENT EDUCATION AND TRAINING LIMITED (CLAIMANT/DEFENDANT) CAN STAND WHEN THE FACILITY IN ISSUE IS PREDICATED ON SPECIFIC PERFORMANCE OF GRANTING THE MAIN LOAN.
5. WHETHER THERE WAS FAIR TRIAL FOR THE APPELLANT AS GUARANTEED BY SECTION 36 OF 1999 NIGERIAN CONSTITUTION, AT THE TRIAL COURT.
6. WHETHER THE TRIAL COURT DELIVERED JUDGMENT OUTSIDE THE THREE MONTHS ALLOWED BY THE 1999 NIGERIA CONSTITUTION.
Let me start by making a few observations on the issues distilled by the parties. There are ten grounds of appeal from which the Appellant has crafted its five issues for determination. Issue number one is stated to have been nominated from grounds 1 and 2; issue number two from ground 3; issue number three from ground 8; issue number four from grounds 4, 5, 6 and 9 and issue number five from ground 9. So no issues were distilled from grounds 7 and 10 of the grounds of appeal. While ground 10 is the omnibus ground of appeal; ground 7 complains about the decision of the lower Court awarding compen
