HADYER TRADING MANUFACTURING LIMITED & ANOR v. TROPICAL COMMERCIAL BANK (2013)

HADYER TRADING MANUFACTURING LIMITED & ANOR v. TROPICAL COMMERCIAL BANK

(2013)LCN/6046(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of March, 2013

CA/K/178/2010

RATIO

APPEAL: GROUND OF APPEAL: A GROUND OF APPEAL IS TO BE STRUCK OUT WHEN NO ISSUE IS DISTILLED FROM IT
It is therefore true that the 1st issue for determination derived from the 1st Ground of Appeal alone as the Appellant did not relate the 2nd ground to that issue. I shall therefore strike out the 2nd Ground of Appeal, as prayed by the Respondent, since no issue was distilled from it. The same is hereby struck out. See KOTOYE VS. SARAKI (1992) 11/12 SCNJ (Pt.1) 26, Ratio 5; OLUFEAGBA vs. ABDULRAHEEM (2010) ALL FWLR (Pt.512); OR (2009) 18 NWLR (Pt. 1173) 384.PER ITA GEORGE MBABA, J.C.A.

CIVIL CLAIMS: HOW PROVED
Civil claims are proved on the preponderance of evidence, on the balance of probabilities, unlike the standard of proof in criminal cases which must be established beyond reasonable doubt.PER ITA GEORGE MBABA, J.C.A.

COURTS: DUTY OF THE TRIAL COURT IS TO EVALUATE EVIDENCE

COURTS: WHETHER THE COURT CAN SET UP A DIFFERENT CASE FROM THE ONE SET UP BY THE PARTIES THEMSELVES
In such a situation, I think, the trial Court lacked jurisdiction to consider the relevance of Exhibit DJ1 – DJ84, beyond what it did, to avoid descending into the arena to make case for a party. See the case of SUBEM VS. STATE (2010) 8 NWLR (Pt.1197) 586, where the Supreme Court said:
“A Court should not set up for parties a case different from the one set up by the parties themselves. See ONIAH VS. ONYIAH (1989) 1 NWLR (Pt.99) 514; OJO – OSAGIE VS. ADONRI (1994) 6 NWLR (Pt.349) 131 … A Judge should not descend into the arena. A court has no duty to bridge the yawning gap in the case of a Party..”PER ITA GEORGE MBABA, J.C.A.

DOCUMENTS: WHAT PARTIES MUST DO IN RELYING ON DOCUMENTS

JUDGE: LIMITS OF THE FUNCTIONS OF A JUDGE
A judge is an adjudicator not an investigator or analyst to conjecture. The Court does not spend its precious judicial time linking documents to specific areas of a party’s case, to come up with a result favouable to the party different from what the party presented. See ANPP VS. INEC (2010) NWLR (Pt.1212) 549; See also AGO VS. AKANO (2005) 11 NWLR (pt. 935) 160, where the Supreme Court held that documents admitted in evidence, no matter how useful they could be, would not be of much service to the Court in the absence of admissible oral evidence to explain their import.PER ITA GEORGE MBABA, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. HADYER TRADING MANUFACTURING LTD
2. MR. HASSAN ALI DIEK Appellant(s)

AND

TROPICAL COMMERCIAL BANK Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kano State High Court, in suit No.K/109/2003, delivered by Hon Justice Shehu Atiku on 19th May, 2010, wherein the Lower Court entered judgment against the Appellants in the sum of Twenty four million, three hundred and fifty eight thousand, two hundred and seventy nine naira (N24,358,279.00), with interests.
Appellants were the Defendants at the Lower Court, where the Respondent as, Plaintiff, claimed for the following reliefs:
“(a) The sum of N24,358,279.20 (Twenty four millions, three hundred and fifty eight thousand, two hundred and seventy nine naira, twenty kobo), being the outstanding debit balance in the Defendants’ Current Account No.400285-020 as at 13th December, 2002 in favour of the Plaintiff.
(b) Bank interest on the said sum at the rate of 29% per annum from 10th November 2002 to the date of judgment and thereafter court interest at the rate of 10% per annum until the judgment debt/sum is fully liquefied”
Appellant filed the appeal as per pages 310 – 311 of the Records of Appeal and disclosed four Grounds of Appeal as follows:-
“(1) The learned trial Judge erred in law when he held that the Defendants/Appellants are liable to the Plaintiff in the sum of N24,358,279 on the basis of Exhibits A, B, C, D and E.
PARTICULARS OF ERROR:
(i) Exhibits A, B and C are cheques drawn by 1st Defendant/Appellant to total sum of which equal N2,783,000 …
(ii) Exhibit E is the statement of account of the 1st Defendant/Appellant
(iii) Pages 2, 3, 4, 5 and 6 (representing transaction between March, 1997 – April, 1998) of this vital document are missing.
(2) The learned trial Judge erred in law when he held that the 2nd Defendant/Appellant was liable to the Plaintiff jointly and severally.
PARTICULARS OF ERROR:
(i) The evidence before the Court was that the 2nd defendant guaranteed a loan of N5m
(ii) It was also not in dispute that the N5M was fully repaid by the 1st Defendant/Appellant
(3) The learned trial Judge erred in law when he failed to give proper appraisal to the evidence adduced by the Defendant and relied heavily on the evidence adduced by the Plaintiff in giving his decision.
PARTICULARS OF ERROR:
(i) The 1st Defendant tendered Exhibit DJ1 – DJ84 which are all Bank tellers evidencing various lodgments into the account
(ii) These payments were totally ignored by the trial Judge in arriving at judgment.
(4) The learned trial Judge erred in law when he failed to draw the necessary legal inference from the failure of the Plaintiff to account for the 5 missing pages of the Exhibit E.
PARTICULARS OF ERROR:
(a) The claim of the Plaintiff is predicated on Exhibit E, the statement of account
(ii) Several vital pages of Exhibit E are missing and explanation was offered by the Plaintiff for this .
(iii) The presumption is that the failure of the Plaintiff to tender the missing pages is that it is against the Plaintiff.”
Appellants filed their Brief of arguments on 28th January, 2011 and the same was deemed duly filed on 8th March, 2011 (Appellants however, on the Brief erroneously numbered the Appeal as CA/K/48A/10 and this was not noticed when the process was deemed duly filed on 08/03/11)
They distilled three issues for determination as follows:
(1) Whether having regard to the evidence adduced in this case the Respondent was entitled to judgment? (Ground 1)
(2) Whether the trial Judge properly evaluated Exhibits DJ1 – DJ84 tendered by the Appellants? (Ground 3)
(3) Whether the learned trial judge drew the correct legal inference from the failure of the Respondent to explain away the missing pages of Exhibit E (i.e. the statement of account). (Ground 4)
The Respondent filed its Brief of argument on 8th April, 2011 and distilled two (2) issues for determination, namely:
“(1) Whether having regard to the facts, evidence and circumstances of this case the Respondent was entitled to judgment
(2) Whether the trial Judge did not evaluate the evidence adduced by both parties in arriving at his judgment in favour of the Respondent.
The appeal was heard on 13th January, 2013, when Counsel on behalf of the parties argued the appeal, by adopting their briefs and urging us, accordingly.
Arguing the appeal, learned Counsel for the Appellants, Dele Olaniyan Esq. (who settled the brief), submitted that the sum total of Exhibits A – D, which the Respondent relied on, is N3,783,000; that the only other material evidence of the claim of the Respondent is Exhibit E, but that Exhibit E has no probative value, as a study of it shows that it is numbered from pages 1 to 16, yet pages 2, 3, 4, 5, 6, 11, 13 and 14 are missing from it, and there is no explanation as to the contents of the missing pages, yet it was on the basis of this Exhibit E and Exhibits A, B, C and D that judgment in the sum of N24,358,279.00 was entered against the Appellants.
Counsel said that from the evidence of PW1, the only record which the Respondent relied on to prove the sum of N24,358,279.20 are Exhibits A, B, C, D and E; that in contrast, the 1st Appellant through DW1 tendered a total of 85 payment tellers (Exhibits DJ1 – DJ84,) and testified that he made a total payments of N44 million approximately, and Exhibits DJ1 to DJ84 were part of the tellers of the said total payment; that Exhibit E (statement of Account) represented activities from 15/10/95 to 13/12/2002 and did not reflect Exhibits DJ1 – DJ84; that if the trial Judge had considered or reviewed the Appellants’ evidence, perhaps it would have reached a different conclusion.
Counsel added that in civil cases, suits are determined on preponderance of evidence and balance of probabilities and a party who asserts must prove his assertion, on aforementioned principle. He relied on the case of UBA PLC VS. ISHOLA (2002) FWLR (Pt.100) 1253 at 1272; ELIAS VS. OMO BARE (1982) 5 SC 25; IBIYEYE VS. FOJULE (2006) ALL FWLR (Pt. 302) 156; MALLO VS. MALLAM (2006) ALL FWLR (Pt. 306) 972, and submitted that the Respondent failed to discharge this onus of prove, to show that the Appellants were indebted to it, through credible evidence; that the Respondent merely presented a few cheques, totaling a small fraction of the amount claimed, and further aggravated matters by presenting an incomplete and inaccurate statement of account to the Court. Counsel relied on the case of UBA PLC VS. GBADEBO (2003) FWLR (Pt.186) 644 at 653, where it was held:
“In a claim for recovery of a loan by a banker, the success of the claim depends on the accuracy of the account kept between the parties.”
Counsel said that Exhibit E was not an accurate account, considering the missing pages. He also relied on NWAOBASI VS. STATE (2008) ALL FWLR (Pt. 446) 1874 at 1998-1999, on the importance of reviewing and evaluating evidence, saying that through out the judgment, no reference was made by the trial Court in the instant case to Exhibits DJ1 – DJ84, (the payment tellers tendered by Appellants) and no finding was made as to the effect of the missing pages in Exhibit E.
Counsel further submitted that, even if the Exhibit E were complete and accurate, that the statement of account alone could not be sufficient evidence to charge the Appellants with liability for the sum of N24,358,279.20. He relied on Section 38 of the Evidence Act and the case of HABIB NIG. BANK LTD VS. GIFTS NIGERIA LTD (2006) ALL FWLR (Pt.241) 234 at 257 – 259.
He urged us to resolve the issue for Appellants.
On issue 2 – whether the trial Court properly evaluated Exhibits DJ1 – DJ84 Counsel submitted (again) that the Exhibits were all payment tellers by the Appellants into the account that gave rise to the dispute; that the evidence of DW1 to that effect was never challenged or contradicted. Thus, there is the presumption that the testimony was true; that the trial Court was obliged to evaluate that evidence and ascribe probative value to it. He relied on the case of UBA PLC VS. BTL INDUSTRIES LTD (2007) ALL FWLR (Pt.352) 1615 at 1648; 1687 – 1688. He submitted that the failure of the trial Court to do so occasioned a serious miscarriage of justice. He relied on the case of IYORDYE VS. IHYAMBE (2001) FWLR (Pt.31) 2881 at 2887 – 2888.
He urged us to resolve the issue for Appellants.
On issue 3 – whether the trial judge drew the correct inference from the failure of the Respondent to explain away the missing pages of Exhibit E, Counsel submitted that there is no where in the judgment where the trial Court evaluated Exhibit E, with a view to drawing the necessary legal inference; that the Court had a duty to do so. He relied on the case of ONIMOLE VS. ADEFOLABI (2008) ALL FWLR (Pt.438) 324 at 348 – 349; UBA PLC VS. BTL INDUSTIRES LTD (supra)
Counsel added that if the trial Court had evaluated the Exhibit, it would have presumed the missing pages under section 18 of Evidence Act against the Respondent. He relied on UBA PLC VS. ISHOLA (2002) FWLR (Pt.100) 1253 at 1281.
He urged us to resolve the issue for the Appellants and allow the appeal.
The Respondent’s Counsel, Emenalo M. O. N. Esq., arguing their first issue, said that the claim of the Respondent at the Lower Court was that Appellants operated 2 Accounts with Respondent – a loan Account No. 400285-300 and a current Account No. 400285-020; that the Five Million (N5,000,000.00) Loan the Appellants enjoyed under the loan Account was eventually liquidated in May, 2001, but that the informal overdraft facilities enjoyed by the Appellants under the Current Account, who overdrew on several occasions, left outstanding debit balance of the sum of N24,358,279.20 as at 13/12/2002; that Appellants vehemently denied having two accounts with the Respondent, except the Loan Account (for which they tendered Exhibits D1 Statement of the Loan Account No.400285-200 (sic)which was further supported by Appellant’s Exhibits DJ1 – DJ84.
Respondent’s Counsel submitted that Exhibits A, B, C, D and E were tendered by the Respondent to show some of the entries/overdrawals and the existence of the Current Account No. 400285 -020 as well as the outstanding debit balance of N24,358,279.20.
He argued that the said existence of the Current Account was further supported by the Appellant Exhibits DJ1 to DJ84. He submitted that the Appellants were prevaricating, approbating and reprobating and somersaulting in their defence to the Respondent’s claim, from denying owing the Respondent (as per Exhibit D1) to accepting the existence of Current Account (Exhibit E) and complaining of some missing pages, wrong debits and excess charges therein; that again, while averring in paragraph 4 of their pleading that ” The 1st Appellant applied for and was granted a loan of N5,000,000.00 under Current Account” (page 218 of the Records), the DW1 testified on 11/12/2008 that no money was granted to them under the Current Account! (Page 109 of the Records).
Respondent’s Counsel observed that Appellants’ issue 3 was repetitive of issue 1 and so superfluous; that issue 3 was subsumed and argued in issue 1.
He argued that the two issues (1 and 3) made a heavy storm and mountain out of mole hill on the issue of some of the missing pages in Exhibit E. He said that Appellants’ complaint or argument on the missing pages, or incompleteness of Exhibit E was a non issue; that the Respondent pleaded and tendered only some copies of cheques (Exhibits A – D) it could lay hands on to show the operation of the Current Account (Exhibit E), the Appellants having been customers of Respondent since 1995; that the Respondent was not under a duty to produce A to Z or 100% of the numerous and bulky cheques used by the Appellants, since 1995, before it could prove the point; that similarly, the Respondent had pleaded in paragraph 5 of the its Statement of Claim, that it will rely on the relevant pages of the numerous pages of the Exhibit E, to show Exhibits A to D, the abandonment of the Current Account and the latest outstanding debit balance.
He argued that the Appellants themselves, testifying as DW1, on 13/5/2009, acknowledged that Exhibit DJ1 to DJ84 “are part of the tellers with which we lodge money i.e. they are part of the lodgments the other tellers are misplaced.” (page 115 of the Records). He argued that because the Appellants were using Exhibits DJ1 to DJ84 as part of the tellers to prove a point of lodgment, the Respondent was also entitled to use parts of the Records (Exhibit E) in its possession to prove the debt; that what is sauce/good for the goose is equally sauce/good for the gander.
He submitted that Section 149 (d) of the Evidence Act and the case of UBA PLC VS. ISHOLA, relied upon by the Appellants, cannot avail them. He said that all the arguments of Appellants in defence of the Respondents claim centred on the complaint of some missing pages on Exhibit E, in complete disregard of other facts that supported and grounded the Respondent’s claim. He added that the Appellants cannot condemn Exhibit E and at the same time rely and benefit from it. He relied on the case of GOV. EKITI STATE VS. OJO (2006) ALL FWLR (Pt. 331) 1298 at 1304.
Counsel also relied on Appellant’s Exhibit G as some other fact that showed that Appellants were owing the bank; that therein Appellants had stated:
“Trusting that on conclusion of the above we will arrive to a realistic debit balance and subsequently propose on how we intend to settle the debt.” Page 253 of the Records.
He argued that that position was contradictory to the claim of the Appellants, that since they had paid the N5,000,000.00 loan they were not owing “a single Kobo”!
Counsel further said that in the course of trial, adjournments were granted several times for the Appellants to make proposals to the Respondent for out of Court settlement and that the Appellants wrote to the Respondent on 7/12/2006 and 3/5/2007 proposing N2,000,000.00 and N3,000,000.00, respectively, as offers for final and full settlement of the debt, which proposals and offers were rejected by the Respondent. Counsel submitted that the Appellants would not have gone through such troubles, if they did not owe the Respondent the amount claimed or any single kobo!
Counsel submitted that Appellants have not been consistent. He relied on the case of ONYEKWELU VS. ELF PETROLEUM NIG. LTD. (2009) ALL FWLR (Pt. 469) 426 at 429; OGUNMUYIWA VS. ODUKOYA (2009) ALL FWLR (Pt. 454) 1526 at 1528
He urged us to resolve the issue against the Appellants.
On issue 2 whether the trial Court did not evaluate the evidence adduced by both parties before arriving at its judgment, Counsel submitted that the trial judge evaluated the evidence adduced by the two sides before reaching its decision. He referred us to pages 292 – 294 of the Records, where he said the Court reviewed and evaluated the evidence by Respondent, and pages 299 – 304 of the Record, where he said the Lower Court did the same to the evidence by the Appellants. He also referred us to pages 294 to 299 where he said the Court also reviewed and evaluated the evidence and addresses of Counsel.
He urged us to resolve the issue against the Appellants and to dismiss the Appeal. He also urged us to strike out ground 2 of the appeal for having been abandoned, that Appellant did not argue the said ground.
RESOLUTION OF ISSUES
Appellants did not, specifically, relate grounds 2 and 4 to any of the issues for consideration. He only related grounds 1 and 3 to issues 1 and 2, respectively. A close perusal of the remaining 2 Grounds of Appeal (2 and 4) shows that issue 3 is distilled from the ground 4, being a complaint relating to drawing correct inference from the missing pages of Exhibit E, which the issue portends. The 2nd Ground of Appeal, too, appears to be the same as the 1st ground except that it specifically frowned that the 2nd Defendant/Appellant, was held liable jointly and severally, as opposed to the 1st ground which queried the holding of the Defendants/Appellants liable to the sum of N24,358,279.00 on the basis of Exhibits A, B, C, D and E.
It is therefore true that the 1st issue for determination derived from the 1st Ground of Appeal alone as the Appellant did not relate the 2nd ground to that issue. I shall therefore strike out the 2nd Ground of Appeal, as prayed by the Respondent, since no issue was distilled from it. The same is hereby struck out. See KOTOYE VS. SARAKI (1992) 11/12 SCNJ (Pt.1) 26, Ratio 5; OLUFEAGBA vs. ABDULRAHEEM (2010) ALL FWLR (Pt.512); OR (2009) 18 NWLR (Pt. 1173) 384.
The two issues distilled by the Respondent appear to talk about the same thing (evaluation of evidence) and they are the same as the issues distilled by Appellants, all quarreling about the evaluation of evidence by the trial Court, whether having regard to the evidence adduced, the Respondent was entitled to judgment. They complained of evaluation of evidence, particularly the Exhibits, that a different decision would have been reached, had the Exhibits DJ1 to DJ84 and E were properly evaluated and correct inferences made. I therefore think all the issues raised by the Appellants and Respondent can be reduced into one which is whether, having regard to the evidence adduced, and considering the Exhibits DJ1 to DJ84 and Exhibit E, the trial Judge was right in holding that Appellants were liable to the Respondent in the sum of N24,358,279.00 (Twenty four million, three hundred and fifty eight thousand, two hundred and seventy nine naira)?
I shall therefore consider this appeal on that re-framed issue for determination.
Appellants had argued strongly that the learned trial Judge did not evaluate the evidence by the Appellants, particularly, Exhibit DJ1 to DJ84 (payment tellers said to have been made by the Appellants to the Respondent) which they claimed were part of the tellers that made a total payment of 44 million naira, approximately, to the Respondent; that the Court did not also consider the fact that Exhibit E, which the Respondent relied on, had missing pages that made the document (Statement of Account) incomplete, and a proper inference would have led to a presumption against the Respondent, under Section 148 of the Evidence Act, and the case UBN PLC VS. ISHOLA (2002) FWLR (Pt.100) 1253 at 1281.
It was the position of the Appellants that if the evidence had been properly evaluated and considered and the proper inference made, the Respondent’s claim would have been dismissed.
The Respondent had submitted that Appellant operated two accounts with the Respondent- a Loan Account and a Current Account; that while they (Appellants) had settled the loan (5 million Naira) under the Loan Account, the several overdrawals (overdraft facilities) on the Current Account No.400285 -020, and interests thereon remained unpaid, amounting to N24,358,279.20 as at 13/12/2002; that Exhibit E was the Statement of Account on the Current Account, showing the outstanding balance, which account the Appellants abandoned since November, 2000. Respondent had argued that, whereas, the Appellant had initially denied owing the Respondent, even a single kobo, they later, in the course of trial at the Lower Court, sought out of Court settlement and offered to pay up to N3m in full and final settlement of the debt, which Respondent rejected. He maintained that the Appellants were approbating and reprobating, prevaricating on the same issue.
A brief facts of this case shows that Appellants were the customers of the Respondent, 2nd Appellant being the Managing Director and owner of the 1st Appellant. Appellants operated Accounts with the Respondent, including a Loan Account and a Current Account. They obtained a loan of N5m from the Respondent which they later repaid as at 31/5/2001, and consequently the Loan Account was closed. While operating the Current Account, the Appellants were permitted to overdraw the current account, which overdrawals were treated as overdraft facilities by the Respondent and that resulted in debit balances, interests and bank charges, and as at 13/12/2002 the debit balance in the said account was N24,358,279.20. The Respondent called a witness and tendered seven documents to prove the claim. Appellants too called a witness and tendered Exhibits DJ1 to DJ84. At the end of the trial the Lower Court held the Appellants liable.
There is evidence that the trial Court had evaluated the evidence as adduced by the parties , fairly, and had found as a fact that the “Defendants operated two accounts with the Plaintiff in the name of the 1st Defendant and those accounts are:
(1) The Loan Account No. 400285-300 and
(2) The Current Account No. 400285-020″
…The plaintiff have (sic) a mandate card in respect of the Current account and that interest from the Loan Account was debited to the Current Account. Also Exhibit E, as well as Exhibit DJ1-84, show and link the Defendants with the Current Account… The Defendants denial of the existence of Current Account No.400285-020 can in no way be taken as true.” (See page 305 of the Records).
Apart from the interests on the Loan Account which were said to have been transferred to the Current Account and the bank charges, the court also found, as a fact, that:
– The interest (on the Loan Account) was charged monthly and on compounding basis
– The posting of interest if not paid increased the debit balance and there was evidence the Defendants were allowed to overdraw their account.
The Court also held that the Exhibit G by the Appellants, where in they said : “Trusting that on conclusion of the above we will arrive to a realistic debit balance and subsequently propose on how we intend to settle the debt,”, was an implied admission by the Defendants (Appellants) of the indebtedness. Additionally, that the conduct of the Appellants in making offers of sums of money towards settlement of the case, out of Court, was further proof of admission of indebtedness. (See pages 305 – 306 of the Records).
There was also evidence that the account had been abandoned. These findings by the trial Court were not challenged or appealed against by the Appellants.
The main arguments of the Appellants is that trial Court did not evaluate and ascribe probative value to Exhibits DJ1 to DJ84 and that that occasioned a miscarriage of justice. Appellants did not state how the alleged failure to evaluate and ascribe probative value to the said Exhibits could possibly lead to miscarriage of justice, since they did not say that the payments, made under Exhibits DJ1 to DJ84 had the effect of settling the debt or reducing the same, especially, as they were denying owing a single kobo!
Appellants had also strongly argued that Exhibit E (Statement of Account) was incomplete record; that the missing pages indicated Respondent was hiding something, and that the inference should be presumed against the Respondent under section 148 of the Evidence Act.
Respondent’s reply was that they only selected some of the documents that were handy, just to show the existence of the Current Account (which Respondent said the Appellants denied operating) and to establish the existence of the debt (which Appellants also denied!)
Civil claims are proved on the preponderance of evidence, on the balance of probabilities, unlike the standard of proof in criminal cases which must be established beyond reasonable doubt.

The duty which the trial Court had, which I think, it discharged, in the circumstance of this case, was to examine from the evidence adduced on both sides, which one, in fact, titled the sacred scale of justice on being weighed on the balance. See the case of OLUBODUN VS. LAWAL (2008) ALL FWLR (Pt.434) 1468
The Court had to consider whether the Current Account (Exhibit E) allegedly operated by Appellants was in existence, whether, infact, Appellants operated the Account and took the overdrafts, which resulted in the debt, and whether that debt was outstanding in favour of the Respondent, despite the denials by the Appellants and their claims in Exhibits DJ1 to DJ84.
Exhibits A, B, C, D and E were produced by the Respondent as bank documents, to establish banking relationship between Appellants and the Respondent, and in the name of the Current Account No. 400285-020. Exhibit E, being Statement of Account on the said Account No. 400285-020, over a period of time (31/12/1996 to 12/08/98 and 31/08/00 to 31/12/02) had outlined the transactions that were calculated into the debt claimed by the bank (Respondent). A close look at Exhibit E shows that the Account was largely on debit balances, especially from 29/07/98 to 13/12/02, apart from 2 instances (on 23/11/00 and 31/5/01 when N300,000.00 and N12,567.14, respectively, were credited to the account). The trial Court had found as a fact that as at 13/12/02, the debit balance on the account was N24,359, 279.20 (Twenty four million, three hundred and fifty eight thousand, two hundred and seventy nine Naira, twenty kobo).
Appellant did not deny the Exhibit E, but only sought to discredit it as being an incomplete record, or as having missing pages. But on page 115 of the Records of Appeal, the DW1 had said:
“Exhibit E this is the statement of our accounts 15/10/95 to 13 December 2002 payments in Exhibit DJ1 – DJ84 are not reflected in Exhibit E. I do not agree that this document is complete because….pages 2, 3, 4, 5, 11, 13 and 14 are missing.”
Of course, Exhibits DJ1 – DJ84 were tendered by the Appellants as tellers of payments into the said Current Account and the Current Account and it confirmed the claim of Respondent that Appellant operated the said Account!
Appellants had, however, stated that Exhibits DJ1 to DJ84 (that is the payment therein) were not reflected in Exhibit E. Appellants consistently denied operating a separate Loan Account (No. 400285- 300) or taking another loan or facility under the Current Account they operated with the Respondent. See paragraphs 3 to 5 of Appellants’ joint Statement of Defence on page 221 of the Records and DW1’s evidence on pages 108 – 109 of the Records.
I had earlier stated that the trial Court found as a fact that the Appellants operated two accounts with the Respondent, namely:
(1) Current Account No. 400285-020 and
(2) Loan Account No. 400285-300, and that the Appellants obtained from the Respondent a loan of N5 million under the Loan Account which loan was repaid by the Appellants by 31/5/2001 and consequently the loan Account was closed. (See page 292 of the Records)
These findings have not been appealed against by the Appellants.
Of course, it could not have been possible to reflect some of the transactions in Exhibit DJ1 – DJ84, (particularly Exhibits DJ1 to DJ71 (spanning 16/8/95 to 31/10/96)) in the Exhibit E. This is because Exhibits DJ1 – DJ71 were transactions done before the date contemplated in computing the transactions in Exhibit E, which was from 31/12/96 to 13/12/2002. But Exhibits DJ72 to DJB4, which appear to have been transacted between 21/3/98 and 29/6/99, were however, not reflected in Exhibit E. They show as follows:
1. Exhibit DJ72 for payment of N642,852.00 on 21/3/98
2. Exhibit DJ73 for payment of N642,852.00 on 30/3/98
3. Exhibit DJ74 for payment of N642,852.00 on 20/4/98
4. Exhibit DJ75 for payment of N2,001,000.00 on 28/4/98
5. Exhibit DJ76 for payment of N5,000,000.00 on 17/7/98
6. Exhibit DJ77 for payment of N1,000,000.00 on 22/9/98
7. Exhibit DJ78 for payment of N1,200,050.00 on 30/7/98
8. Exhibit DDJ79 for payment of N3500, 000.00 on 30/7/98
9. Exhibit DJ82 for payment of N400,000.00 on 8/2/99
10. Exhibit DJ83 for payment of 400,000.00 on 13/2/99
11. Exhibit DJ84 for payment of 200,000.00 on 29/6/99
(See pages 113 – 114 and 280 to 284 of the Records)
Appellants did not plead or lead evidence to show the exact amount they paid to the Respondent, to defray the debt, apart from pleading settlement of the Loan Account (No.400285-300), which the Respondent also confirmed. They rather alleged wrong debits, unconventional charges, excessive interests and charges in Exhibit E, which they did not also specify and/or elaborate or lead evidence to prove. (See page 116 of the Records).
Appellants had prayed the trial Court to dismiss the claim and for an order of Court for the Plaintiff to pay N12,000,000.00 (Twelve Million Naira) to them (Appellants), said to be missing from Exhibit B, with compound interest. They also wanted the cost of value of the Naira, totaling N40 million, from 2002 to 2009, saying that if that sum of N12 million were in Appellants’ bank account, it would amount to N40 million! See Page 116 of the Records.
Appellants, however, did not counter claim in this case! And while asserting that they over paid the debt and sought refunds of N12 million, they wrote Exhibit G on 20/11/02 to admit possibility of owing the Respondent, seeking a way of arriving at “realistic debit balance and subsequently propose on how we intend to settle the debt”! Appellants also sought an out of Court settlement of the case, on which occasion they offered to pay N2million and N3 million at different times to settle the debt!
That, I think, gave the Appellants out as gamblers in their defence of this action, prevaricating on whether they owed the Respondent at all, or not; asserting they did not owe a single kobo, but also seeking to have a realistic debit balance to be able to propose on how to settle the debt, and offering N3 million in full and final settlement, out of Court – all in the same breath!
I therefore do not think the Appellants deserve to be taken to be serious, when they claim that Exhibit E was incomplete and that the alleged missing pages should be presumed against the Respondent! I think they lost a chance to get the Respondent to account for Exhibit DJ72 to DJ84, if, in fact, those tellers were credible, evidencing payments of those amounts to the Respondent, after they had admitted the Exhibit E as the statement of their account, spanning 15/10/95 and 13/12/2002! Even if the said pages 2, 3, 4, 5, 11, 13 and 14 were truly missing and the contents of the alleged missing pages were material, to swinging the presumption of the Court in favour of the Appellants, I believe the duty was that of the Appellants to lead evidence to establish that the said missing pages carried vital and relevant records of transactions that would have reduced or, completely, negatived the debit balances in the account (Exhibit E); also considering the fact that the Appellant had abandoned the account from November, 2000 to December, 2002, (when Respondent decided to challenge the Appellants)!
It appears Appellants just dumped Exhibit DJ1-DJ84 in Court and expected the Court to do a miracle and make a case for them, by sorting the documents and conjecture how to apply them! That cannot be done.
In a situation like this, where a bank has published a statement of account, detailing the debit balances, the customer of the bank to whom the statement relates, if he has reason to fault the figures and claims in the bank statement, has a duty to produce credible evidence in support of the faults he finds on the Statement of Account and relate same to the bank statement, to successfully impeach the bank statement. For instance, if the bank omits to include a credit transaction by the customer in the statement to customer’s credit, or includes a debit or charge not authorized, the customer has to draw the attention of the bank, and of the Court to the same, and cause the difference to be ascertained, to correct the omission or wrong inclusion or conclusions by the bank.
Appellants did not do that in this case, while attacking the Exhibit E (which they also admitted as being their account statement, albeit incomplete.) While relying on Exhibits DJ1 to DJ84, which were apparently dumped on the Court, Appellants failed to lead credible evidence to show their relevance (of the alleged tellers) to the claim of the Respondent in the Current Account, as opposed to the Loan Account which the parties agreed had been settled.
In such a situation, I think, the trial Court lacked jurisdiction to consider the relevance of Exhibit DJ1 – DJ84, beyond what it did, to avoid descending into the arena to make case for a party. See the case of SUBEM VS. STATE (2010) 8 NWLR (Pt.1197) 586, where the Supreme Court said:
“A Court should not set up for parties a case different from the one set up by the parties themselves. See ONIAH VS. ONYIAH (1989) 1 NWLR (Pt.99) 514; OJO – OSAGIE VS. ADONRI (1994) 6 NWLR (Pt.349) 131 … A Judge should not descend into the arena. A court has no duty to bridge the yawning gap in the case of a Party..”

In the case of ALIUCHA VS. ELECHI (2012) LPELR – SC 30/2012, the Supreme Court said:
“When a party decides to rely on documents to prove his case, there must be a link between the document to the specific area/s of the petition. He must relate each document to the specific area of his case for which the document was tendered. On no account must Counsel dump documents on a trial Court. No Court would accord any probative value to a document that is dumped on the Court, where there is no oral evidence led by any of the parties explaining the essence of the document and its relevance to the issue(s) it portends in the case. See the case of ADIKE VS OBIARERI (2002) 4 NWLR (Pt.758) 537.
A judge is an adjudicator not an investigator or analyst to conjecture. The Court does not spend its precious judicial time linking documents to specific areas of a party’s case, to come up with a result favouable to the party different from what the party presented. See ANPP VS. INEC (2010) NWLR (Pt.1212) 549; See also AGO VS. AKANO (2005) 11 NWLR (pt. 935) 160, where the Supreme Court held that documents admitted in evidence, no matter how useful they could be, would not be of much service to the Court in the absence of admissible oral evidence to explain their import.
As observed by my Lord Abiru JCA in the case ALHAJI USMAN SHARU BABA-LUNGU AND ANOR. VS. ALHAJI AHMED ABUBAKAR ZAREWA AND ORS. CA/K/259/2011 (an unreported decision of this court) delivered on 22/3/13 (page 18):
“It is settled law that a party relying on documents in proof of his case must, in open Court, specifically relate each of such documents to that part of his case in respect of which the document is being tendered. It cannot be done in the written address of his Counsel. In other words, there must be evidence showing the link between the documents and the specific areas of the case of the party. The Court cannot assume the duty of tying each bundle of the documentary exhibits to specific aspect of the case for a party, when that party has not himself done so. TERAB V. LAWAN (1992) 3 NWLR (pt.231) 569; AWUSE VS. ODILI (2005) 16 NWLR (Pt.952) 515; ANPP VS. USMAN (2008) 12 NWLR (Pt.1100) 1; AUDU vs. INEC (NO.2) (2010) 13 NWLR (Pt.1212) 549 referred to”
see also JIMOH VS. AKANDE (2009) 5 NWLR (Pt.1135) 549,where the supreme Court held:
“Documents are not simply dumped on the Court through a witness. There must be evidence before the Court connecting the documents to the matter before the court.”

In his evidence in this case DW1 (2nd Appellant) told the court:
“…we had a Current Account. Our company loads (sic) the sum almost N48.9 Million. We paid in with tellers and withdraw with cheques, Our actual withdrawal from the Current Account was approximately N38 Million, We should, be in credit to the tune of 11 Million and not in debit I have evidence of payment of this N38 Million. We have tellers to prove this Payments.”
(Page 110 of the Records)
He then tendered Exhibits D11 to D184 and said they were part of the total payment; that the rest of the tellers were misplaced: (Page 115 of the Record).
Appellant did not demonstrate at the trial Court how the Exhibits DJ1 to DJ84 (and even the ones said to have been misplaced) satisfied and settled their indebtedness of over 24 Million Naira, outstanding on the Exhibit E as at 13/12/2002, especially as there was evidence that they had abandoned the Account in November, 2000, thereby allowing the interests and charges to run, unmitigated.
The last of the alleged tellers (Exhibit DJ84) was made on 29/6/1999 and Appellants did show that they had settled their obligation to the Bank as at then or as at November, 2000, (when they abandoned the account), to foreclose the running of the interests! They, merely, speculated that they “load the sum almost N48.9 Million” and that their “actual withdrawal from the current was approximately N38 Million.,, (and) should be on credit to the tune of N11 Million and not debit”! Appellants did not also state as at what date those speculated claims were attainable, and what the position was, as at 13/12/2002, when the Respondent’s claim of over 24 Million Naira stood out in Exhibit E.
It is therefore obvious, that since there was evidence of operation of the Current Account No.400285 – 020 by the Appellants, as per Exhibit E (which they admitted), which showed the debit balance of N24,358,279.20 as at 13/12/2002, and how the debit was calculated, the Respondent had discharged the onus of proof of its claim as required by law. (See Section 136 of the Evidence Act 2011).
The onus therefore, that they had repaid the debt either in part or in whole, shifted to the Appellants. This they failed to discharge and rather resorted to gambling and speculation; seeking to rely on Exhibits DJ1 – DJ84, but failed to lead evidence to relate the purport of the said Exhibits to the liquidation of the outstanding debt, (which they denied owing but at the same time also offered N3m to settle, out of Court!)
I hold that the alleged missing pages of the Exhibit E could not be constructed under Section 148 (now 167 (d) of the Evidence Act), against the Respondent, as no evidence was adduced by the Appellants to suggest the inference that the contents of the alleged missing pages were ” evidence which could be and is not produced, would if produced, be unfavourable to the person who withholds it,”
I can therefore not fault the handling of the case by the trial Court – how it evaluated and appraised the evidence by the parties, including Exhibits DJ1 to DJ 84 and the Exhibits E.
I therefore resolve the issue against the Appellants, and hold that the appeal is without merit, and should be dismissed. It is accordingly dismissed, as I affirm the decision of the trial court, delivered on 19/5/2010.
Parties to bear their respective Costs.

ABDU ABOKI, J.C.A.: I have had the privilege of reading in advance the lead judgment just delivered by my learned brother, ITA G. MBABA, JCA.
I entirely agree with the reasoning and conclusion contained therein, that there is no merit in the appeal. I also accordingly dismiss it and affirm the decision of the Kano State High Court delivered on 19/05/2010.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mbaba, JCA. I must say, with all deference, that I am unable to agree with the reasoning and conclusions reached in the lead judgment. I am compelled to write dissenting views.
This is an appeal against the judgment of the High Court of Kano State in Suit No.K/109/2003 delivered by Honorable Justice Shehu Atiku on the 19th of May, 2010. The Respondent, as Plaintiff, commenced Suit No K/109/2003 against the Appellants, as Defendants, and its claims were for:
i. The sum of N24,358,279.20 (Twenty Four Million, Three Hundred and Fifty Eight Thousand Two Hundred and Seventy Nine Naira Twenty Kobo) being the outstanding debit balance in the Defendants’ Current Account No 400285-020 as at 13th of December, 2002 in favour of the Plaintiff.
ii. Bank interest on the said sum at the rate of 29% per annum from the 1st of December, 2002 to the date of judgment and thereafter Court interest at the rate of 10% per annum until the judgment debt/sum is fully liquidated.
iii. The cost of prosecuting this action
The matter was commenced under the Undefended List Procedure and a Writ of Summons marked under the undefended list supported by an affidavit of facts with exhibits and dated the 17th of February, 2003 was issued by the Registry of the High Court of Kano State. The Appellants filed a Notice of Intention to Defend dated the 3rd of March, 2003 and it was supported by an affidavit of facts with exhibits. In a Ruling delivered on the 5th of May, 2003, the Lower Court granted the Appellants leave to defend the action and parties were directed to the pleadings. The Respondent filed a Statement of Claim dated the 20th of May, 2003 whilst the Appellants filed an amended Statement of Defence dated the 31st of March, 2008. The matter proceeded to trial and during which the Respondent called one witness and tendered exhibits marked as Exhibits A to G. The second Appellant testified as the sole defence witness and he rendered exhibits marked as Exhibits D1 and DJ1 to DJ84. At the conclusion of trial and after addresses of Counsel, the Lower Court found in favour of the Respondent and entered judgment as claimed. The Appellants were dissatisfied with the judgment and they caused a Notice of Appeal dated the 20th of May, 2010 to be filed against it. The Notice of Appeal contained four Grounds of Appeal.
In compliance with the Rules of this Court, the Appellants filed a brief of arguments dated the 20th of January, 2011. The Appellant’s brief of arguments consisted of nine pages and it was deemed properly filed by this Court on the 8th of March, 2011. The Respondent filed a brief of argument consisting of seven pages and dated the 4th of April, 2011 At the hearing of the appeal on the 13th of February, 2013, Counsel to the Appellants and to the Respondent relied on and adopted their respective briefs of arguments.
In the brief of argument, Counsel to the Appellants distilled three issues for determination and these were:
i. Whether having regard to the evidence adduced in this case the Respondent was entitled to judgment.
ii. Whether the trial Judge properly evaluated Exhibits DJ1 to DJ84 tendered by the Appellants.
iii. Whether the learned trial Judge drew the correct legal inference from the failure of the Respondent to explain away the missing pages of Exhibit E (i.e. Statement of Account).
In his own brief of arguments, Counsel to the Respondent distilled two issues for determination and these were:
i. Whether having regard to the facts, evidence and circumstances of this case the Respondent was entitled to judgment.
ii. Whether the trial Judge did not evaluate the evidence adduced by both parties in arriving at his judgment in favour of the Respondent.
The first issue for determination formulated by the Appellants and the Respondent is the same. Reading the records of appeal and the briefs of arguments of the parties, it is clear that the resolution of this first issue for determination formulated by the parties will adequately resolve all the complaints of the Appellants in this appeal. I shall adopt it as the sole issue for determination in this appeal.
In arguing the appeal, Counsel to the Appellants referred to the exhibits tendered by the parties at trial and he noted that the exhibits tendered by the Respondent were four cheques in the total sum of N3,783,000.00 (Exhibits A to D), a Statement of Account (Exhibit E), the deed of guarantee of the second Appellant (Exhibit F) and the letter of the Appellants disputing their alleged indebtedness to the Respondent (Exhibit G). Counsel also noted that Exhibit E was supposed to run from pages 1 to 16 but that pages 2 to 6, 11, 13 and 14 were missing and that the Respondent offered no explanation for the missing pages. Counsel stated that from the testimony of the sole plaintiff witness, the Respondent relied only on Exhibits A to E to prove that the Appellants were owing it the sum of N24,358,279.20 and that it was on the basis of these documents that the Lower Court entered judgment in favour of the Respondent. Counsel also referred to the testimony of the sole defence witness and the several tellers tendered as Exhibits DJ1 to DJ84 and stated that the witness emphasized the missing pages in Exhibit E as well as the fact that the payments he made by the said tellers were not reflected in Exhibit E. Counsel stated that the Lower Court completely ignored the testimony of the defence witness and the exhibits in its evaluation of the evidence in the matter.
Counsel submitted that civil suits were determined on a balance of probabilities and that a party who asserts must prove its assertion. Counsel submitted that until a Plaintiff had proved his case on a balance of probability, the onus does not shift to the Defendant. Counsel referred to the case of Mallo Vs Mallam (2006) All FWLR (Pt.306) 981, amongst others. Counsel submitted that the Respondent had the obligation before the Lower Court to prove that the Appellants were indebted to it and that the Respondent failed to lead credible evidence to meet the minimum standard and that all that the Respondent presented were a few cheques totaling a small fraction of the sum claimed and an incomplete Statement of Account. Counsel referred to the case of UBA Plc Vs Gbadebo (2003) FWLR (Pt 186) 644. Counsel stated that the Lower Court failed to make any finding on the effect of the missing pages in Exhibit E and he submitted that even if Exhibit E was complete, it was not enough to fix the Appellants with liability for the sum of N24,358,279.20. Counsel referred to Section 38 of the Evidence Act and the case of Habib Nigeria Bank Ltd Vs Gifts Nig Ltd (2005) All (FWLR) (Pt.241) 234. Counsel submitted that there was no evidence before the Lower Court to warrant its entering judgment in favour of the Respondent.
In his response arguments, Counsel to the Respondent referred to the case made out by the Appellants in their pleadings and the evidence led by the parties in Court and stated that the Appellants prevaricated, approbated and reprobated and somersaulted in their defence to the claims of the Respondent and that the Appellants moved from denying owing the Respondent to accepting the existence of a Current Account and again to complaining about missing pages, wrong debits and excess charges in the Statement of Account. Counsel submitted that the missing pages or incompleteness of Exhibit E was a non-issue as the Respondent was not under any obligation to produce the complete Statement of Account and in fact the Respondent pleaded that it would rely on the relevant pages of Exhibit E. Counsel submitted that the failure of the Respondent to tender more than the four cheques, Exhibit A to D, was also a non-issue as the Respondent could not be expected to tender all the numerous and bulky cheques of the Appellant.
Counsel submitted that apart from Exhibits A to E, there were other facts, evidence and inferences before the trial Court to support the fact that the Appellants were owing the Respondent the sum of N24,358,279.20, the debit balance in the account. Counsel referred to the letter of the Appellants, Exhibit G, wherein, he said, that the Appellants acknowledged owing the Respondent some money. Counsel stated further that in the course of trial, the Lower Court adjourned the matter on a number of occasions to enable the parties attempt an out of court settlement and that the Appellants wrote two letters proposing to pay N2 Million and N3 Million in full and final settlement of their indebtedness. Counsel submitted that these would have been unnecessary if the Appellants were indeed not owing the Respondent the sum of N24,358,279.20. Counsel submitted that the Appellants were not consistent in their case and were consistently changing their case like the weather cock in climatology. Counsel stated that the Appellants were chasing shadows instead of substance and were only interested in dribbling the Respondent and in deceiving the Court.
In its judgment, on the issue of the quality of the evidence led by the parties, the Lower Court said thus:
“On the 2nd issue – whether or not the defendants are indebted to the Plaintiff under the Current Account for the debit balance of N24,358,279.20 .
In the first place, PW1 under cross-examination revealed among other things:
i. That exhibit is the Statement of Account of the Defendant on Current Account No 400285-020 with the Plaintiff.
ii. That the Plaintiff charged interest on the loan account No 400285-300 of the Defendants.
iii. That the interest charged on loan account is posted to the current account of the Defendants.
iv. That the interest was charged monthly and on compounding basis.
v. That the posting of interest if not paid increased the debit balance. That is, a debit entry increases liability, if it is not paid lenged and it is belied (sic) and acceptable by me.
Secondly, it is in evidence that the Defendants was (sic) allowed to overdrew (sic) their account and such withdrawal are regarded as credit facility…
Thirdly, there is an implied admission by the Defendants of their indebtedness and the current account in exhibit G.
Fourthly, the Defendants by their conduct have corroborated the claim of the Plaintiff by making offers of sums of money towards settlement of the case out of Court.
So looking at the evidence adduced by each sides (sic), it is (sic) appear that the evidence by the Plaintiff is more qualitative and has more probative value on the issue. The denial of indebtedness by the Defendants therefore fails.” (see Pages 305 to 306 of the records)
In its summary of findings in the judgment, the Lower Court found that the “interest from the Loan Account and the overdraft facilities which the Defendants fail to pay have (sic) birth to the sum of N24,358,279.20” and “that during the trial some moves were made to settle this matter out of Court as a result of which the Defendants offered N2,000,000.00 and later N3,000,000.00 but these offers were rejected by the Plaintiff.” (see page 308 of the records)
Before proceeding to resolve this issue for determination, I consider it pertinent to give a summary of the case of the parties on the pleadings. It was the case of the Respondent, as Plaintiff, that the second Appellant, the owner and managing director of the second Appellant, opened, ran and operated Current Account No 400285-020 and Loan Account No 400285-300 with the Respondent. It was its case that the Appellants were granted a loan facility of N5 Million in the Loan Account and that the money was to be drawn through the Current Account and that all the interests due and payable on the loan at the rate of 21% was to be debited into the Current Account and were to be settled by lodgments made into the Current Account. It was its case that the Appellants were also granted additional informal overdraft facilities by being allowed to overdraw their balances in the Current Account on the understanding that they would service the overdraft with lodgments made into the account to offset the debit balances and that the second Appellant guaranteed the repayment of the informal overdraft facilities.
It was the case of the Respondent that the Appellants fully repaid the loan of N5 Million by the 31st of May, 2001 and the Loan Account was closed but that the Appellants failed to liquidate the debit balance in the Current Account and that the debit balance was liable to the prevailing interest rates, other bank charges and legal expenses until it was fully paid. It was its case that the debit balance in the Current Account kept rising while lodgments made therein continued to dwindle and that the Appellants completely abandoned the account on the 30th of November, 2000 and that the account continued to attract the necessary charges. It was its case that the Appellants refused, failed and/or neglected to settle the indebtedness in the Current Account despite repeated demands.
In their Statement of Defence, the Appellants, as Defendants, admitted that they operated a Current Account No 400285-020 but vehemently denied opening a Loan Account No 400285-030 and it was their case that they applied for and were granted the N5 Million through their said Current Account and which was secured by a deed of debenture on the fixed and floating assets of the first Appellant as well as by a deed of legal mortgage over the landed property of the second Appellant in Bauchi. The Appellants denied applying for or taking any informal overdraft facility and it was their case that the only facility extended to them by the Respondent was the N5 Million loan and that this was the only facility guaranteed by the second Appellant. It was their contention that the Respondent manipulated the account of the first Appellant and violated the Central Bank’s Monetary Policy by failing to render to the Appellants prompt monthly Statements of Account showing the rate of charge on turnover, rate of interest on overdrawn account, if any, and which breach made verification of the charges impossible.
It was also the contention of the Appellants in their Statement of Defence that the Respondent breached Central Bank’s Tariffs as it did not make any clear distinction in the Statement of Account of the first Appellant between debits that constitute chargeable turnover and thus used reversal entries and bank charges to compute cumulative debits. It was their case that the Respondent breached the prescribed policy of the Central Bank on administration of loans particularly on how interest is to be calculated on such accounts and that the computation of interest on the alleged overdraft was arbitrary, excessive and often times multiple. It was their case that they had since repaid the N5 Million loan facility together with the interest thereon.

It trite that the starting point by a trial Court of the consideration of the case made out by parties at trial must be to locate the onus of proof; who has the burden of proving what? The term “onus or burden of proof’ has two distinct and frequently confusing meanings. It means:
a. the burden of proof as a, matter of law and pleadings; it is the burden of establishing a case either by preponderance of evidence or beyond reasonable doubt; and
b. the burden of proof in the sense of introducing evidence.
As regards the first meaning attached to the term burden of proof, this rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings as it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstance whatever. The true meaning of the rule is that where a given allegation whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation rests on him. While the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly more as one scale of evidence or the other preponderates. In this sense, the onus probandi rests upon the parties who would fail if no evidence at all or no more evidence, as the case may be, were given on either side. It rests before evidence is gone into, upon the party asserting the affirmative of the issue and it rests after evidence is gone into, upon the party against whom the Court at the time the question arises give judgment if no further evidence were adduced – Ogwule Ankpa Agatu Cooperative Group Farming Society Vs Nigerian Agricultural & Cooperative Bank Ltd (1999) 2 NWLR (Pt.590) 234, Makanjuola Vs Ajilore (2001) 12 NWLR (Pt 727) 416, Union Bank of Nigeria Plc Vs Ishola (2001) 15 NWLR (Pt 735) 47, Ishola Vs Folorunsho (2010) 13 NWLR (Pt.1210) 169, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt.1230) 1,.
In Kala Vs Potiskum (1998) 3 NWLR (Pt.540) 1 Onu, JSC categorized the meanings of the phase “burden of proof into three, namely:
a. The persuasive burden – this is the burden of proof as a matter of law and pleading; the burden of establishing a case whether by preponderance of evidence or beyond reasonable doubt. This is also referred to as the legal burden of proof.
b. The evidential burden – this is the burden of proof in the sense of adducing evidence.
c. The burden of establishing the admissibility of evidence.
The natural course of events is that the Plaintiff should bring his own cause of complaint before the Court in every case where he has anything to prove, either as to the facts necessary for his obtaining a verdict or as to amount of damage to which he conceives the proof of those facts will entitle him. Therefore, the general onus is on the Plaintiff to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case. Where a Plaintiff fails to discharge the onus of proof upon him at the close of pleadings, a Defendant is not obliged to adduce any evidence in rebuttal – Woluchem Vs Gudi (1981) 5 SC 291, Olowu vs Olowu (1985) 3 NWLR (Pt.13) 372, Orlu vs Gogo-Abite (2010) 8 NWLR (Pt. 1196) 307, Agala Vs Okusin (2010) 10 NWLR (Pt.1202) 412, Obi Vs Onyemelukwe (2011) 1 NWLR (Pt.1228) 400, Eyo Vs Onuoha (2011) 11, NWLR (Pt.1257) 1.
In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the Defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Dim Vs Enemuo (2009) 10 NWLR (Pt.1149) 353, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt.1153) 587, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt.1184) 265, Phillips Vs Eba Odan Industrial & Commercial Co. Ltd (2013) 1 NWLR (Pt.1336) 618. This is explained by the maxim “ei qui afirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt.1230) 1.
The only exception is where the asserted facts are admitted by the other party. When a fact pleaded by the Plaintiff and admitted by the Defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt.995) 573. This point was succinctly explained by Oputa, JSC in Onobruchete & Anor Vs Esegine & Anor (1986) 2 SC 385 at 397 thus:
“An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the Plaintiff’s claim is admitted, that will be the end of the story. Similarly, if a particular averment of the Plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the court has to look critically at the pleadings.”
Applying these principles to the facts as pleaded by the parties in this matter as set out above, it is very obvious that the Respondent, as Plaintiff, had the onus of proving that the Appellants were indebted to it and how that indebtedness came to amount to the sum of N24 ,358,279.20 (Twenty Four Million, Three Hundred and Fifty-Eight Thousand, Two Hundred and Seventy Nine Naira Twenty kobo) at 13th of December, 2002. The Respondent also had the onus of proving its entitlement to Bank interest on the said sum at the rate of 29% per annum from the 10th of November, 2002 to the date of judgment. None of these facts was admitted by the Appellants. Thus, the fact that, according to the Respondent’s Counsel, “the Appellants prevaricated, approbated and reprobated and somersaulted in their defence to the claims of the Respondent and that the Appellants moved from denying owing the Respondent to accepting the existence of a Current Account and again to complaining about missing pages, wrong debits and excess charges in the Statement of Account” did not remove from the Respondent the onus to prove their claims before the lower Court.
Now, in civil suits, cases are won upon a preponderance of evidence. It follows therefore that a plaintiff in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand -Jiaza vs Bamgbose (1999) 7 NWLR (Pt 610) 182, Mbani Vs Bosi (2006) 11 NWLR (Pt.991) 400, Egwa Vs Egwa (2007) 1 NWLR (Pt.1014) 71. For a piece of evidence to be accepted as cogent and credible, it must be strong and uncontroverted by the opposing party – Eyo Vs Onuoha (2011) 11 NWLR (Pt. 1257) 1. Credible evidence means evidence worthy of belief and that for evidence to be worthy of belief and credit, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe – Agbi Vs Ogbeh (2006) 11 NWLR (Pt.990) 65, Ogboru Vs Ibori (2006) 17 NWLR (Pt.1009) 542.
The question that arises in this appeal therefore is whether the Respondent led cogent and credible evidence in the discharge of the onus of proof on it before the lower Court?
As stated earlier, the Respondent, as Plaintiff, called only one witness, Mr. Abubakar Ado Ahmed, its acting Head of Corporate Banking, in proof of its case. The witness testified thus:
“…The 2nd Defendant in this case opened an account (Current Account) in the name of the company. The account is No 400285-020 in the name of the company…In February 1996, the 1st Defendant Hayder Trading Manufacturing Co applied for a loan of N5,000,000.00 (N5 Million) from the Plaintiff and that loan was granted on condition that it would be repaid within a period of 12 months At the expiration of that 12 months, the loan was not repaid. Also, in the course of operating that account the account enjoyed several informal overdraft facility which were also not
settled. The grant of N5 Million loan facility gave rise to the opening of a loan account in the name of the 1st defendant. The loan account is No 400285300 (400285 / 300).
When a loan is granted the interest charged on that loan is debited to the current account because if it is left in the loan account it will form part of the principal and will generate interest too. The principal sum was repaid i.e. N5 Million was repaid in May 2001 . . . . The debit balance in the current account remained unpaid and it kept rising. As I have said, the Defendant enjoyed several overdraft facilities. Yes, I have evidence of these overdraft facilities extended to the 1st Defendant. We have cheques which they use in overdrawing the account and certified copies of the Statement of Account showing the transaction (see pages 49-50 of the records)
The witness tendered four cheques dated 13th of July, 1998, 17th of July, 1998 and two dated 30th of July, 1998 in the respective sums of N1 Million, N993,300.00, N895,000.00 and N895,000.00 as Exhibits A to D and the Statement of Account as Exhibit E. The witness continued thus:
“The 2nd Defendant was allowed the series of overdrafts to be drawn on the current account based on the existing cordial relationship and the trust reposed in him. The 2nd Defendant gave oral and written guarantee to the bank in respect of the facilities enjoyed by the 1st Defendant in the two accounts….. The Plaintiffs (sic) have repaid the principal sum i.e. they have repaid the sum of N5 Million in respect of the loan account and that is why the loan account was closed. . . .
The claim of the Plaintiff against the Defendant is on the current account. The Defendants accepted to settle the overdraft facilities by making payments into their current account with the Plaintiff. The Defendants have not paid the debit balances in their current account with the Plaintiff as at today. The Defendants are not operating this current account any more, they have abandoned this current account. When there is a debit balance in an account, it attracts interest and other bank charges. So the debit balance in the current account of the Defendants with the Plaintiff bank is generating interest and other bank charges.
When the Defendants refused to settle their debit balance on their current account with the Plaintiff bank, we made demand on them to come and pay their debit balances but the defendants have not settled their indebtedness. When the Defendants refused to pay despite repeated demands….we handed the matter over to our external solicitor Our external solicitor also sent demand letters to the Defendants . . ..” (see pages 67 to 69 of the records)
The witness tendered the deed of guarantee of the second Appellant and the response of the Appellants to the demand letters as Exhibits F and G.
Reading through the entire testimony of the said witness in the records of appeal, it is very obvious that the Respondent sought to discharge the onus on it on the strength of documents tendered as Exhibits A to G and they were the basis upon which the Lower Court found for the Respondent. Looking at the said exhibits, it is obvious that while Exhibits A to D show that the Appellants made withdrawals from the Current Account on the dates on the cheques, they do not amount to proof of the indebtedness of the Appellants to the Respondent or of how the indebtedness came to amount to the sum of N24,358,279.20 as at 13th of December, 2002 and neither did Exhibit F. It was Exhibit E, the statement of the current account, that reflected the balance in the account to be N24,358,279.20 in debit as at 13th of December, 2002, this was what informed the claims of the Respondent against the Appellants in this matter. Now, Exhibit E was one single document with many pages which by the numbering should be sixteen pages. The document tendered, however, had eight pages; pages 2 to 6, 11 and 12 to 14, half of the pages were missing; this point was emphasized by the second Appellant in his testimony as the sole defence witness (see page 115 of the records). The witness who tendered the document offered no explanation for the missing pages. It will be recalled that one of the contentions of the Appellants before the Lower Court was that the current account of the first Appellant was manipulated by the Respondent and contained wrong and arbitrary entries. The probative value of Exhibit E became immediately questioned, in the circumstances. The missing pages of Exhibit E were not a non-issue, as opined by Counsel to Respondent.

Missing pages in a document tendered in evidence, as a single indivisible document, is always a big issue and the party tendering it is under an obligation to give a plausible and credible explanation for their unavailability. Otherwise, the document will not be accorded any probative value. I made this point in a recent decision of this Court, the unreported judgment in Appeal No.CA/K/259/2011, Albaji Usman Sharu Baban-Lungu & Anor Vs Alhaji Ahmed Abubakar Zarewa & 2 ors delivered on the 22nd of March, 2013 thus:
“It must be recalled that the Appellants tendered Exhibit K at the trial as one single document consisting of many pages and not as a series of independent documents. The same thing was done in the tendering of Exhibit L; a single document consisting of many pages. It is the duty of a party seeking to tender a document consisting of several pages as an exhibit in a trial to ensure that the documents are numbered and/or arranged serially and in sequence, and he must provide a plausible and credible explanation for any missing pages of the document. A document is said to have been doctored when it is altered or tampered with and to be mutilated when it has been damaged by destroying or removing some essential parts of it. The second defence witness who tendered Exhibits K and L admitted under cross-examination that Exhibit L began from page 4, instead of page 1, and that he was not in a position to state what was on pages 1 to 3 and that he did not know the where about of pages 1 to 3. The witness stated that Exhibit K, though numbered, was not arranged serially and that it did not contain the certificate of occupancy issued to the second Appellant and that the certificate of occupancy was in the main file; suggesting that there was another file on the subject matter of Exhibit K and that Exhibit K did not contain all the documents on the subject matter (see page 65 of the records). It is clear from the testimony of the witness that Exhibits K and L had been altered and tampered with and that some essential parts of the documents had been removed. And as rightly submitted by Counsel to the first Respondent, a doctored, altered or mutilated document is not credible and is not worthy of any probative value. The learned trial Judge was thus on very firm ground when he discountenanced Exhibits K and L in the assessment of the evidence led by the parties.”
Going further, and assuming that Exhibit E was a complete document, there were still questions on it. Under cross-examination, the Plaintiff witness testified thus:
“…Interest from the loan account was debited to the Defendant’s current account. Interest debited to the current account are compound (sic) if they are not serviced by the customer. It is an offence to charge double interest. We were charging only one type of interest in the current account of the Defendant…
I cannot remember the rate of interest because it is charged by the system, i.e. computer system. On that 31/ 12/08 there was a turn over. The rate of commission rates (sic) but I cannot remember the actual COT rate but it was also charged by the computer system. We charge commission on return cheques but not interest. I cannot say whether the system charge commission turn over on return cheque. I do not know if all our debits are subject to charges of commission bank charges. I would not know whether in charging on internal interest or not. I do not know whether our charge on reversal entries. The IT staff can explain about these interest charges. I am aware of the policy in the bankers tariff which follows that, i.e. there is a provision in the bankers tariff that some entries are not subject to charges. Examples of these charges are (a) COT (b) interest (c) O.A.T & other charges….
I would not know whether the interest rate was ever varied on the loan account. We do not charge interest on interest. The interest charged on the loan account is posted to the current account. It is possible that interest must have been charged on interest on loan account because it is on recapitalizing basis “(see pages 96 to 104 of the records)
The witness subsequently identified Exhibit E as the statement of the current account of the Appellants and when questioned on the entries in the exhibit, stated further under cross-examination thus:
“…The 5th item on 30/04/98 is VAT charge which is paid to the Federal Government of Nigeria. I do not know on what this VAT is charged. I would not know the rate of interest charged on this 6th item. I would not know the rate of interest charged on this 7th item. I am not in a position to tell (sic) this Court the rate of interest charged on exhibit E. I do not have an application in which the Defendant is asking for any overdraft. The customer was only allowed to overdrew (sic) the current account on several occasions based on the first and cordial relationship that was in existence between him and the bank…” (see page 105 of the records)
The witness was also unable to explain a debit entry of N50,000.00 for filing fees made on 13th of December, 2002. (see page 105 of the records).
It is settled law that a Statement of Account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. This position of law is predicated on the provision of Section 38 of the Evidence Act, Cap 112, Laws of the Federation 1990, which was the applicable law as at 3rd of December, 2004 when the Exhibit E was tendered in Court, and the section stated that “entries in books of account, regularly kept in the course of business are relevant whenever they refer to a matter into which a Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.” This provision has been integrated by the Courts to mean that any bank which is claiming a sum of money on the basis of the overall debit balance of a Statement of Account must adduce both documentary and oral evidence explaining clearly entries therein, particularly where the debt is constituted largely by interest charges, to show how the overall debit balance was arrived at. The Bank cannot just toss and dump before the Court the Statement of Account in proof of the indebtedness of the customer for the overall debit balance therein; it must do more than that – Co-
Operative Bank Ltd Vs Otaigbe (1980) NCLR 215, Yusuf Vs African Continental Bank (1986) 1-2 SC 49, Habib Nigeria Bank Ltd Vs Gifts Unique (Nig) Ltd (2004) 15 NWLR (Pt.896) 405 and Wema Bank Plc Vs Osilaru (2008) 10 NWLR (Pt.1094) 150. Looking at the reproduced portions of the testimony of the sole Plaintiff witness, it is obvious that he was unable to explain the entries in Exhibit E and or say categorically how the debit balance therein was arrived at. Exhibit E cannot thus amount to credible evidence of the indebtedness of the Appellants to the Respondent in the sum of N24,358,279.20.
Exhibit G, the letter of the Appellants, was headed “RE: TROPICAL COMMERCIAL BANK PLC” and it read thus:
“Further to your letter dated November 16th, 2002 and the telecom conversation held regarding the above, surprisingly we were not advised with a single debit advice to the latter since four years now.
We have met with the bank and its recovery department on several occasions and we always maintained our stance and denied owing the bank a single kobo particularly after we paid back the principal amount borrowed.
We have since paid back the principal amount of N5 ,000.00.00 borrowed in additions we paid the sum of N2,972,567. 14k largely due to interest charges.
Despite the huge turn over of over N80 Million transacted with bank our company have being dormant for over four years now.
WE SUGGEST THE APPOINTMENT OF AN INDEPENDENT MANAGEMENT AND BANKING CONSULTANTS OR AUDITORS FROM CENTRAL BANK
IN AN EFFORT TO ASCERTAIN AND DISCOVER/RECOVER ALL EXCESS AND UNCONVENTIONAL CHARGES LEVIED AND DEBITED TO OUR ACCOUNT AT INFLATED RATES WHICH IS VARIANCE WITH THE RATES OF THE BANKERS TARRIF STIPULATED BY THE CENTRAL BANK INCLUSIVE OF ALL UNCONVENTIONAL CHARGES ARISING FROM TECHNICAL ERRORS, TRANFER DEBITS AND TRANSFER CREDITS COT INTEREST CHARGES COMPUTED AND COMPOUNDED WITHOUT OUR ACCEPTANCE AND CAREFUL AND ACCURATE SCRUTINY OF EVERY DEPOSIT/WITHDRAWAL INCLUSIVE OF MONEY LOST AND DEBITED TO OUR ACCOUNT RIGHT FROM INCEPTION.
Trusting that on conclusion of the above we will arrive to a realistic debit balance and subsequently propose on how we intend to settle the debit.”
It is settled law that in the interpretation of documents, a court must go for the ordinary meaning of the words used in the document to arrive at the intention of the maker of the document- Abbey Vs Alex (1999) 14 NWLR (Pt.637) 148 and Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt.937) 631. Clearly, reading the contents of this letter as a whole, there is no way the last paragraph thereof can be interpreted to amount to an acceptance or admission, implied or otherwise, by the Appellants of an indebtedness to the Respondent, as suggested by the Counsel to the Respondent and accepted by the lower Court.
Further, the lower Court, at the prompting of Counsel to the Respondent, relied on the offers for settlement made by the Appellants to the Respondent in the course of the trial as one of the basis for finding the Appellants liable and for entering judgment in favour of the Respondent. The records of appeal show that sometime in the course of trial, the parties commenced negotiations towards resolving the matter amicably. Counsel to the Respondent reported to the Court that the Appellants made proposals to the Respondent to settle the matter out of Court and that the first offer of N2 Million was rejected by the Respondent and also that a second offer of N3 Million was also rejected. There after the matter was sent down for continuation of trial (see pages 88 to 91 of the records). It was these offers as stated by the Counsel to the Respondent that the Lower Court relied on in finding the Appellants liable.
I must say that I am stunned at the reliance placed on the said proposals for settlement by the Lower Court. None of the witnesses who testified made reference to any such proposal and the letters by which the proposals were made were not tendered in evidence or presented to the Lower Court by either of the parties and they did not form part of the records of the lower Court. It is elementary law that a Court can, and must, only act on the evidence placed before it by the parties and it must not speculate on the contents of documents not presented to it by the parties. Further, it is an established principle of law that offers of compromise made expressly or impliedly by party cannot be given in evidence or even used by the Court because the law has as its policy the protection of negotiations bona fide entered into for settlement of disputes – Ashibuogwu Vs Attorney General, Bendel State (1988) 1 NWLR (Pt.69) 1238, Fawehinmi Vs Nigerian Bar Association (No. 2) (1989) 2 NWLR (Pt 105) 558, Akanbi Vs Alatede (Nig) Ltd (2000) 1, NWLR (Pt.639) 125, First Amalgamated Building Society Ltd Vs Ibiyeye (2008) 14 NWLR (Pt.1107) 375.
It is clear from the above that the Respondent, as Plaintiff, did not lead any legally acceptable credible or cogent evidence to discharge the onus on it that the Appellants were indeed indebted to it in the sum of N24,358,279.20 as at the 13th of December, 2002 or at any time at all. Further, it is trite that it is the duty of a banker claiming a particular rate of interest to prove it – Ishola Vs Societe Generale Bank of Nig Ltd (1997) 2 NWLR (Pt.488) 405, Suberu Vs Atiba Iyalamu Savings & Loans Ltd (2007) 10 NWLR (Pt 1043) 590. The Respondent led no iota of evidence on its entitlement to interest at the rule of 29% per annum from 1st of December 2002 until judgment. The Respondent did not make out a prima facie case before the Lower Court to sustain its claims. The claims of the Respondent ought to have been dismissed, without more, for this reason – Agu Vs Nnadi (2002) 18 NWLR (Pt.798) 103, Ugoji Vs Onukogo (2005) 16 NWLR (Pt.950) 97.
Again going further and assuming that the Respondent did make out a prima facie case before the Lower Court, there is the testimony of the Appellants, as Defendants. The second Appellant testified as the sole defence witness. He gave evidence thus:
“…There was neither formal nor informal facility granted to us apart from this N5 Million. We never enjoyed any facility on our current account. The Plaintiff are claiming money from us through exhibit E but there are several pages missing from this document. Those missing are pages 2, 3, 4, 5, 6, 11, 13 and 14; these are the missing pages. Yes, we had a current account. Our company load (sic) the sum of almost N48.9 Million. We paid in with tellers and withdrew with cheques. Our actual withdrawal from the current account was approximately N38 Million. We should be in credit to the tune of N11 Million and not in debit…. We have tellers to prove this (sic) payments. We have 8 bunches spanning 1995-1999. I can recognize these tellers each one has a bank stamp, bank address, our account number and the company’s name.” (see pages 109 to 110 of the records)
The witness thereafter tendered, without any objection, eighty-four tellers and they were admitted and marked as Exhibits DJ1 to DJ84 and he continued thus:
“I made total payments of N44 Million approximately. Exhibits DJI to DJ84 are part of the tellers of the total payments. The rest of the tellers are misplaced. Exhibit E this is a statement of our accounts 15/10/95 to 13 Dec. 2002. Payment in Exhibits DJ1 to DJ84 not reflected in exhibit E. I do not agree that this document is complete because if pages 1-16 but pages 2, 3, 4, 5, 6, 11, 13 and 14 are missing. Exhibit E is not complete in that on page 16 the debit transaction is put at 495 debit transactions……If you count them they are not correct. They are by far less. In this exhibit E, there is account for credit transaction. The total credit transactions are put at 37 but the number is not 37. Moreover, the total credit is N33,839,739 which is short of N 12 Million approximately which are not listed in the document…….They are wrong debits, unconventional charges and excessive interest charging …” (see Pages 115 to 116 of the records)
The testimony of the witness was not discredited or disparaged under cross-examination. A look at Exhibits DJ1 to DJ84 show that they are tellers of the Respondent, they reflect payments made into the Current Account No 400285-020 in the Respondent Bank in the name of the first Appellant, and they carried the receiving stamp of the Respondent. The Respondent did not deny or contest that the Appellants made the payments.
A teller duly stamped with the Bank’s stamp and initialed constitutes prima facia proof of payment and a customer after producing such receipt need not go further to show what the Bank did with the payment so made. The onus thereafter shifts to the Bank – see Aeroflot Soviet Airlines Vs United Bank for Africa Ltd (1986) 3 NWLR (Pt 27) 188 where Eso, JSC stated:
“In the normal banking practice, stamping and initialing such entry in the teller constitutes an acknowledgment by the Bank of the receipt of the sum from the customer.”
The Respondent did not contest that not all the payments contained in Exhibits DJ1 to DJ84 were reflected on the Statement of Account, Exhibit E. In fact, it was found in the lead judgment just read that the payments made by tellers, Exhibits DJ72 to DJ84, between 21st of March, 1998 and 29th of June 1999 and totalling over N15 Million were not reflected in Exhibit E. I am thus at a loss to understand how Exhibit E can ever be found to constitute credible evidence of the fact that the indebtedness of the Appellants stood at N24,358,279.20 as at the 13th of December, 2002 or at any time at all.
I find that the Respondent did not lead credible and cogent evidence before the lower Court to sustain its claims before that Court. The findings made by the Lower Court were perverse and the judgment based on them is liable to be set aside. I find merit in the appeal. I hereby set aside the judgment of the High Court of Kano State in Suit No K/109/2003 delivered by Honorable Justice Shehu Atiku on the 19th of May, 2010. I award costs in the sum of N50,000.00 in favour of the Appellants.