HANI AKAR ENTERPRISES LTD V. INDO NIGERIA MERCHANT BANK LTD (2010)

HANI AKAR ENTERPRISES LTD V. INDO NIGERIA MERCHANT BANK LTD

(2010)LCN/3976(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of July, 2010

CA/K/301/04

RATIO

DUTY OF COURT: WHETHER A COURT CAN SPECULATE ON ISSUES NOT CANVASSED BEFORE IT

Courts are not permitted to speculate on issues not canvassed before it. See Dalfam Nig. Ltd V. Okaku International Ltd (supra) and Oyinloye V. Esinkin (supra). PER JOHN INYANG OKORO, J.C.A.

DUTY OF TRIAL COURT: DUTIES OF A TRIAL COURT WITH RESPECT TO EVALUATION OF EVIDENCE ON A MATTER BROUGHT BEFORE HIM

The Supreme Court in Adeleke V. Iyanda (2001) FWLR (pt 100)1580 at 1592 para E – G marshalled out the dos and don’ts of a trial judge on a matter before him. It states per Uwaifor JSC as he then was) as follows:- “A trial judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of facts thereon. He must not impair the evidence either with his personal knowledge of the matter, not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law”. PER JOHN INYANG OKORO, J.C.A.

PRELIMINARY OBJECTION: WHETHER WHERE A PRELIMINARY OBJECTION IS RAISED TO THE HEARING OF A SUIT OR AN APPEAL, SUCH A PRELIMINARY POINT MUST FIRST BE HEARD AND DETERMINED BEFORE HEARING THE MAIN SUIT OR APPEAL.

GROUND OF APPEAL: MAIN PURPOSE OF GROUNDS OF APPEAL

WHETHER A COURT CAN RELY ON UNCHALLENGED AND UNCONTROVERTED EVIDENCE

I hold that the evidence of the Pw1 was unchallenged and uncontroverted and the court below was right to rely on it to reach the conclusion which it did. See Adams V. A. G. Fed (2006) 11 NWLR (pt 991) 341, Gege V. Nande (2006) 10 NWLR (pt 988) 256. PER JOHN INYANG OKORO, J.C.A.

JUSTICES

MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

HANI AKAR ENTERPRISES LTD Appellant(s)

AND

INDO NIGERIA MERCHANT BANK LTD Respondent(s)

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal against part of the judgment of the High Court of Kano State presided over by Hon. Justice S. B. Adamu delivered on the 4th of May, 2004 in suit No. K/111/2002. There is also a cross – appeal. A synopsis of the facts of this case will suffice.
The Appellant as plaintiff before the lower court is a Limited Liability Company and a customer of the Respondent which enjoyed some banking facilities from the Respondent. The said banking facilities were secured by various collateral securities. When the Appellant was in need of more money to shore up its capital base, it approached the Kano Branch Manager of the Respondent through its Managing Director and requested for an enhancement of the existing facilities. The Appellant was requested to submit original title documents of its property apart from those earlier on submitted for the existing facilities as collateral security for the intended enhancement facilities.
The Appellant’s Managing Director submitted to the said Branch Manager Original Certificate of Occupancy No. LKN/RES/RC/82/1857 and Original of Deed of Assignment between Ekele Services Ltd and the Appellant registered as No 195 page 195, vol. 20 (Assignment) at Land Registry, Kano. Their photocopies are Exhibits 1 and 2 respectively. The Respondent however says the two documents were additional securities for loans already granted. The Respondent could not advance more money to the Appellant after collecting exhibits 1 and 2 and the documents were not returned. When all personal efforts towards recovering the documents proved abortive, a suit was filed against the respondent for the recovering of the documents. The Appellant’s writ of summons and statement of claim are contained on pages 40-46 of the record of proceedings.
Upon being served with the court processes, the Respondent, who was then the 2nd Defendant at the trial court, filed a statement of Defence with a counter-claim which is contained at pages 51-54 of the record. At the trial, the Managing Director of the Appellant testified as Pw1 and the Respondent called two witnesses as Dw1 & Dw2. After taking evidence from both parties, the learned trial judge dismissed the counter claim of the Respondent/Cross-Appellant and entered judgment for the Appellant on the following terms:-
“1. That the defendant has no legal right or equitable right to detain and continue to detain the Plaintiffs Certificate of Occupancy No. LKN/RES/RC/82/1857 (Exhibit 1) and Deed of Assignment between EKELE SERVICES LIMITED AND HANI AKAR ENTERPRISES LIMITED registered as No. 195 at page 20 (Assignment) at the Land Registry Office Kano (Exhibit 2) without any consideration for doing so.
2. That the action of the 1st defendant in deceiving the Plaintiff Managing Director to deliver the said certificate of occupancy No. LKN/RES/RC/82/1857 and the Deed of Assignment to him with a promise to secure additional loan from the Indo Nigeria Merchant Bank Ltd without granting the loan is fraudulent.
3. That the defendants, their agents, privies, representatives and/or assigns are perpetually restrained from demanding from the Plaintiff its Managing Director or agent and/or employees the Certificate of Occupancy No. LKN/RES/RC/82/1857 and the Deed of Assignment.
4. That in order to promote cordial relationship and understanding between the Plaintiff customer and defendant bank, no damages are to be paid by either side.
5(a) That in view of the death of Mr. Hani Akar himself the certificate of occupancy No. LKN/RES/RC/82/1857 and Deed of Assignment between EKELE SERVICES LIMITED and HANI AKAR ENTERPRISES LIMITED registered as No. 195 at page 195 vol. 20 (Assignment) at the Land Registry, Kano must be released on the undertaking that the property will not be sold or – alienated pending the hearing and determination of the suit between the same parties before court 1 High Court, Kano.
(b). That the Certificate of Occupancy shall be released to either the Director of Litigation, Miller Road, High Court Complex, Kano State, or
(c). The Chief Registrar, High Court, Kano State or
(d). The Certificate of Occupancy, Deed (sic) any of these persons acting as sureties and giving (sic) determination of the suit before High Court NO. 1 on the issues of the loan between the parties.
They are:-
(i). The Managing Director of African iles, Kano
(ii). The Managing Director, Angel spinning ile, Kano.
(iii). The Head of Lebanese Community, Kano
(iv). The Lebanese counsel (sic) or Ambassador”
Dissatisfied with some aspects of the said judgment, the Appellant filed Notice of Appeal on 28/6/04 containing two grounds of appeal. Also, on 23/7/04, the Respondent/Cross-Appellant filed its Notice of Cross Appeal containing five grounds of Appeal. I shall determine the main appeal before considering the Cross-Appeal.

MAIN APPEAL
From the two Grounds of Appeal filed by the Appellant, One issue has been formulated by the learned counsel for the Appellant for the determination of this appeal. It states:-
Whether the learned trial judge was right in law to have ordered conditional release of the Appellant’s title documents Exhibits 1 & 2 notwithstanding the various positive findings of fact made by him in favour of the Appellant’s case only on the ground that:-
(a). The Respondents had sued the Appellant before another court claiming perfection of the whole mortgage agreement.
(b). The death of Appellant’s Managing Director called for release of Exhibits 1 & 2 on the under taking that the property will not be sold or alienated pending hearing and determination of the suit between the same parties at High Court No. 1, Kano.
The learned counsel for the Respondent however distills two issues for determination as follows:-
1. Whether it was proved that the Respondent deceived the Appellant into depositing the certificate of occupancy No. LKN/RES/RC/82/1857 together with the Deed of Assignment between Ekele Services Ltd and Hani Akar Enterprises Ltd with the Respondent as to warrant the conditional orders made by the Honourable Judge.
2. Whether there was a pending suit between the parties before another court.
I shall determine this appeal based on the lone issue formulated by the Appellant as it encapsulates the two issues distilled by the Respondent.
It was the submission of learned counsel for the Appellant that there was no joinder of issues between the parties on the existence or pending of any suit between the same parties before High Court No. 1, Kano or any other court wherein the respondent is claiming for perfection of the whole mortgage agreement or at all. That the only evidence pertaining to institution or pendency of another action came from Dw2 under Cross-examination when he said on p. 17 para 1 lines 1-5 that “we have instituted an action claiming for debt in another court”. The learned counsel then wondered where the learned trial judge came about his findings that the Respondent has a claim before another court claiming for perfection of the whole mortgage agreement to warrant ordering release of Exhibits 1 & 2 on the conditions listed in part of the judgment under attack in this appeal. He observed that the learned trial judge had dismissed the Respondent’s counter-claim before him where perfection of the security was claimed. He submitted that the court below was wrong to import issues not joined by the parties into the judgment. He relies on the cases of Adeleke V. Iyanda (2001) FWLR (pt 60) 1580 at 1592 para E – G., Adeniyi V. Adeniyi (1972) 4 S.C 10 at 17, Bornu Holdings Ltd V. Bogolo (1971) 1 All NLR p. 324 at 330 and Shodeinde V. Ahmadiya Movement in Islam (1983) 2 SCNLR P. 284.
Learned counsel concluded on this aspect that but for the offensive and perverse finding, the learned trial judge would have ordered a release of Exhibits 1 & 2 to the Appellant unconditionally based on his findings at page 27 paragraph 2 of the record of proceedings.
On the other aspect of the issue, the learned counsel for the Appellant asked whether the learned trial judge was right to have introduced the conditions for the release of Exhibits 1 and 2 to the Appellant simply because of the death of Mr. Hani Akar. Learned counsel submitted that the death of Mr. Hani Akar does not amount in law to the death of the Appellant being a limited liability company to warrant or constitute the basis of ordering a conditional release of Exhibits 1 and 2 to the Appellant as made by the learned trial judge. That the conditions were not born out by evidence adduced before the court and this amounts to speculation on the part of the learned trial judge. He relies on the cases of Dalfam Nig. Ltd Vs Okaku International Ltd (2002) FWLR (pt 96) p. 501 at 541 paras B – C, Oyinloye V. Esinkin (1999) 10 NWLR (pt 624) 540. Learned counsel urged this court to resolve the lone issue in favour of the Appellant and set aside the aspect of the judgment appealed against.
The reply by the learned counsel to the Respondent is in conformity with the position taken by the Appellant in this appeal. I shall reproduce verbatim, the submission of the respondent on page 3 paras 5.03 – 5.05 thus;-
“5.03 It is further submitted to your Lordships that the learned trial judge as rightly contended by the Appellant misled himself by importing issues not before the court into the case particularly on the issue of pendency of the Respondents claim before another court when in actual fact those claims are before the court and the court refuse (sic) to adjudicate over them. See the counter claim on pages 53 – 54 of the Record of Proceedings.
5.04 This apparent failure led the Hon. Judge to make the conditional orders being appealed against and it arose because of the failure of the court to consider the respondents counter-claim contrary to well established legal principles.
5.05 This apparent confusion on the issue of the pendency of a suit in another court arose from the cross – examination of Dw2 at page 17 lines 2.5 of the record of proceedings”.

The arguments contained in paragraphs 5.01 and 5.02 bordering on issue of fraud not being proved is not part of the lone issue formulated for the determination of this appeal. Consequently, they are hereby discountenced as argument not predicated on the issue formulated is of no legal consequence.
Now, from the reply of the Respondent to the argument of the Appellant on the lone issue for determination, it is crystal clear and without any modicum of doubt that the Respondent has conceded to the appeal on that issue. So, if at this stage I make a pronouncement that this appeal succeeds on this issue, that would be in order. Nevertheless, I still have something to say before coming to that inevitable conclusion.
As has been rightly pointed out by both parties in this appeal, there is nothing in the pleadings i.e statement of claim, statement of defence and counter-claim to suggest that there is a pending suit in High Court No. 1, Kano between these same parties and for the perfection of the whole mortgage agreement. There is absolutely nothing of sort. In other words, the parties did not join issues on the alleged pending suit. Throughout the entire gamut of evidence, none of the parties gave evidence that there was a pending suit at High court No. 1, Kano between the Appellant and the Respondent for the purpose of perfecting the mortgage agreement. The only semblance of such evidence is that given by Dw2 under Cross examination on page 17 para 1 lines 2 – 5 of the record of proceeding as follows:-
“We have instituted an action claiming for debt in another court We are in this court asking for perfection of our security, so our claim have not be (sic) useless and it will not work injustice against the plaintiff”.
Apart from the above quoted evidence of Dw2 under cross – examination, there is no other evidence near to it. Even at that, he never said the suit is at High court No. 1 Kano, neither did he say that the matter is for perfection of mortgage agreement. He said the matter is a claim for debt simpliciter, and the court was never mentioned.
In his judgment, the learned trial judge on page 27 of the record held inter alia as follows:-
“The court must hold that the defendant bank can not be allowed to keep the certificate of occupancy and Deed of Assignment Exhibit 1 and Exhibit 2 or to incorporate them into the previous mortgage agreement However, since there is evidence that the defendant has sued the plaintiff in another case claiming for the perfection of the whole mortgage agreement, the court may not order the UNCONDITIONAL release of the certificate of occupancy and deed, Exhibit 1 and Exhibit 2….”
There is no doubt that the learned trial judge strayed from the parameter of evidence led before him and imported matters within his personal knowledge into the case. Else, how did he know that the case is pending at High Court No.1 Kano? Again, how did he know that the case is for perfection of mortgage agreement? These are issues which were never canvassed by the parties before him. The Supreme Court in Adeleke V. Iyanda (2001) FWLR (pt 100)1580 at 1592 para E – G marshalled out the dos and don’ts of a trial judge on a matter before him. It states per Uwaifor JSC as he then was) as follows:-
“A trial judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of facts thereon. He must not impair the evidence either with his personal knowledge of the matter, not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law”.
With due respect, the learned trial judge failed to take the above admonition to heart and this led him into grave error of having to import matters not canvassed by the parties into his judgment.
Apart from the issue of a pending matter at High Court No. 1 Kano which only exists in his imagination, there is also the issue of the death of PW1, Mr. Hani Akar. On page 28 of the record, the learned trial judge held thus:-
“5(a) That in view of the death of Mr. Hani Akar himself the Certificate of Occupancy No. LKN/RES/RC/82/1857 and Deed of Assignment between EKELE SERVICES LTD and HANI AKAR ENTERPRISES LTD registered as No. 195 at page 195 vol 20 (Assignment) at the Land Registry Kano must be released on the undertaking that the property will not be sold or alienated pending the hearing and determination of the suit between the same parties before Court 1 High Court, Kano”.
This again is very pathetic. The issue of the death of Mr. Hani Akar was never made an issue before the court below but the court suo motu made it an issue and made it a reason for his judgment. The holding of the court below that Exhibits 1 & 2 be released to the Appellant on the undertaking that the property will not be sold or alienated pending the determination of the suit before High court No. 1 Kano and because of the death of the Pw1 is not bourne out by evidence adduced before the court and this is very speculative. Courts are not permitted to speculate on issues not canvassed before it. See Dalfam Nig. Ltd V. Okaku International Ltd (supra) and Oyinloye V. Esinkin (supra).
It is my view that the learned trial judge having granted all the declaratory and injunctive reliefs sought by the Appellant and without any evidence before the court to the effect that the Appellant, a limited liability company has been wound up or liquidated, the only option opened to him was to have ordered the release of Exhibits 1 and 2 to the Appellant unconditionally.
The learned trial judge had rightly held that Exhibits 1 and 2 were not part of the original mortgage agreement made between the Appellant and the Respondent. He also held that the two documents were for security for the enhancement of the facility which was never made good for it. He further found that the Respondent had no business detaining the document any further. I agree with the learned counsel for the Appellant that the only order to have been made was an unconditional release of the two documents to the Appellant. The Respondent agrees intoto that the importation of alien matters into the case by the court below drove it into grave error. I hold that the court below erred in making a conditional release of Exhibits 1 & 2 to the Appellant. This appeal succeeds on the lone issue submitted for consideration as I resolve it in favour of the Appellant.
Accordingly, I hereby set aside the aspect of the lower court’s judgment which gave conditions for the release of Exhibits 1 & 2 to the Appellant. In its place, I hereby order the Respondent to unconditionally release the original of the two documents, Certificate of Occupancy No. LKN/RES/RC/82/1857 (Exhibit 1) and Deed of Assignment between EKELE SERVICES LTD and HANI AKAR ENTERPRISES LTD registered as No. 195 at page 195 vol 20 (Assignment) at Land Registry Office Kano (Exhibit 2) to the Appellant without any consideration for doing so. Both parties to bear their respective costs.
CROSS – APPEAL
The cross-appeal is based on the same facts and judgment of the learned trial judge in the main appeal. Therefore, there shall be no need to restate the facts here.
Being dissatisfied with the judgment of the learned trial judge, the cross-Appellant filed Notice of Cross Appeal on 23/7/04 containing five grounds of appeal out of which the learned counsel for the Cross-Appellant has distilled three issues for determination. The issues are:-
(i). Whether the Respondent (sic) has proved that it was deceived by the Cross – Appellant into depositing the certificate of occupancy No. LKN/RES/RC/82/1857 together with the Deed of Assignment between Ekele Services Ltd and the Respondent (sic) for purpose of securing an intended enhancement of the overdraft facility.
(ii). Whether the learned trial judge correctly evaluated the evidence of the parties
(iii). Whether the trial judge was justified in dismissing the 2nd defendant’s counter claim.
The learned counsel for the Cross Respondent however adopts only issue 2 in the Cross Appellant’s brief as the only live issue in this Cross – Appeal. It states:-
“Whether the learned trial judge correctly evaluated the evidence of parties”.
On 26th of May, 2010 when this cross – appeal came up for hearing, the learned counsel for the Cross – Appellant was absent though duly served with hearing notice. In line with the rules of this court, particularly, Order 17 Rule 9(4) of the court of Appeal Rules 2007, the brief of the Cross-Appellant was deemed argued. Also, at the same hearing, the learned counsel for the cross Respondent drew the attention of the court to the fact that he had filed Notice of Preliminary Objection to the hearing of the cross appeal. The argument in support of the said Notice of Objection is contained on pages 3 – 10 of the Cross Respondent’s brief. The Cross Appellant filed a reply brief in answer to the preliminary objection.

It is a well settled principle of law and practice that where a preliminary objection is raised to the hearing of a suit or an appeal, such preliminary point must first be heard and determined before hearing the main suit or appeal. In line with the above principle, I shall determine the preliminary objection first. See UBN PLC V. Umeoduagu (2004) 13 NWLR (pt 890), Adeyemi Works Construction Ltd Vs Omelehin (2004) 6 NWLR (pt 870) 650.
The main objection of the Cross Respondent is that grounds 2 and 3 of the grounds of appeal are vague, general in terms and disclose no reasonable ground of appeal while ground four does not arise from the judgment of the trial court. He submitted that grounds 2 and 3 are in breach of the provisions of Order 3 Rule 2(4) of the Court of Appeal Rules 2002 (now Order 3 Rule 2(4) of the 2007 Rules). The brief was filed on 18/07/05 when the 2002 Rules were in force. Relying on the cases of Jibrin Vs NEPA (2003) FWLR (pt 178) 1092 at 1102 B – F, Iwanibe V. Swande (2002) FWLR (pt 58) 355 and CBN V. Okojie (2002) FWLR (pt 103) 349, he urged this court to hold that grounds 2 and 3 are vague and general in terms. As regard ground 4, he urged the court to also strike it out not being anchored on any decision of the court below.
In his reply brief, the learned counsel for the Cross Appellant submitted that grounds 2 and 3 of the grounds of appeal have met the requirement of the law and are thus competent. That it is not the law that a ground of appeal must state portions of the judgment in details provided it states in summary with clarity what is being appealed against, moreso as the particulars of the ground have captured those issues. On ground 4, he submitted that a careful look at the judgment of the court below will certainly disclose that the said ground is anchored on the judgment.
I shall at this stage bring to the front burner the three grounds of appeal complained of by the Cross Respondent; and in doing so, I shall also reproduce their particulars. They are-:
“GROUND 2
The learned trial judge erred in law in arriving at a wrong inference unsupported by facts.
Particulars of Error
(a). The Plaintiffs case at the trial was that the Defendants deceived its Managing Director into depositing its certificate of occupancy No. LKN/RES/RC/1857 with a view towards securing an enhancement of its existing exposure.
(b). The court did not appreciate the evidence of the Defendants witnesses that it was the Respondent that was deceitful by submitting photocopies of some other certificates of occupancy over the same transaction purportedly that he was in possession of the original when in fact they were not in existence.
(c). The facts of the Plaintiff’s deceit were not considered by the learned trial judge in his judgment
GROUND 3
The learned trial judge erred in fact and misdirected himself when he held that the allegation of deceit was proved.
Particulars of Error
(a). The court did not properly evaluate the entire evidence before it, in coming to its conclusions.
(b). The evidence of the Defendants witnesses as to the deceit perpetrated by the Plaintiff on the Bank was not refuted by the Plaintiff.
(c). The basis of depositing the certificate of occupancy No. LKN/RES/RC/82/1857 was to cover the Plaintiffs earlier deceit since he did not provide the original certificates upon which basis he was granted the loan and its enhancement.
GROUND 4
The learned trial judge erred in law and in fact when he refused to consider the defendants counter claim on the ground that there is a subsisting suit involving those claims filed by the defendant
Particulars of Error
(a). No evidence was led by the Plaintiff to show that there were similar claims before another court as to warrant the above conclusion.
(b). The defendant testified through its witnesses who indicated that a claim for the recovery of the overdraft facility was pending before another court and not the counter – claims before the learned trial judge.
Order 3 Rule 4 of the court of Appeal Rules 2002 (now Order 3 Rule 4 of the 2007 Rules) states:
“(4). No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the Respondent”.

I think the main purpose of a ground of appeal is to give notice to the other party in the case of what they have to meet in the appellate court and this must be stated with clarity and precision. It must be stated or drafted in such a way that it covers or captures all the complaints, both law and facts the Appellant has against the judgment. See NIPC V. Thompson Organization (1969) 1 All NLR 138. In Anie V. Chief Igagbe (1995) 6 NWLR (pt 402) 425, this court held that a ground of appeal must be succinctly couched and specifically described that the other side will know the exact complaint against the judgment. It should however avoid repetitive narration or arguments. Thus where a ground of appeal is not specific but general in terms apart from the exceptions generally called omnibus ground, such a ground of appeal is incompetent and ought to be struck out.
Now, a careful perusal of Ground 2 of the grounds of Appeal will show the ground complains about “wrong inference unsupported by facts”. The question is, what are the wrong inferences. The particulars could have provided the answer but there is none. Looking at the ground of appeal, it is not only vague but too generalistic in nature. It does not specifically let the other party to know what exactly is the complaint against the judgment of the court below. Maybe, counsel has something in mind, but it is not crystalised in the ground of appeal. Counsel needs to employ great skill, accuracy, elegance and expertie in drafting grounds of appeal in order to fully bring out the complaint which it seeks to convey. This ground of appeal, is in my opinion incompetent and is accordingly struck out.

As regards ground 3, it seems to me that it has captured the complaint of the cross – appellant and does not leave anybody in doubt as to what it is all about. It alleges that the court erred when it held that the allegation of deceit was proved. No body is in doubt as to what the complaint refers. I hold the view that the rules governing the drafting of grounds of appeal should not be interpreted to drag the exercise into the murky water of technicality. Indeed, the Apex court has set the matter in its proper perspective in Aderohunim & Anor V. Olowu (2000) 2 SCNJ 180 at 191 when it stated per Ayoola JSC (as he then was) as follows:-
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby courts will look at the form rather than substance. The prime purpose of the rules or the Appellate procedure both in this court and in the court of Appeal that the Appellant shall file a notice of Appeal which shall set forth concisely the grounds which he intends to rely upon on appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant, and consequently, of the issues that are likely to arise in the appeal. Any ground that satisfies that purpose should not be struck out not withstanding that it did not conform to a particular form “.
I think ground 3 satisfies the test set out by the Apex court in the case cited above. Accordingly, I hold that ground 3 is proper and does not offend against any rule of court.
As regards Ground 4, I have carefully perused the judgment of the court below vis-a-vis the said round of appeal and I have not been able to find the part of the judgment which the said ground of appeal attacks. There is no part of the judgment which the learned trial judge said he dismissed the counter claim because there was a case pending in another court. Rather, it was the court’s reason for ordering a conditional release of Exhibits 1 & 2 to the Cross Respondent. Therefore, I agree with the learned counsel for the Cross Respondent that ground 4 does not derive from the judgment of the lower court as there is nowhere in the judgment which the trial judge said he refused to consider the counter claim on the ground that there is a subsisting suit involving those claims filed by the Defendant or any ground at all. Accordingly, ground 4 is hereby struck out.
As it turns out, the preliminary objection succeeds in part as grounds of appeal Nos.2 and 4 are hereby struck out.

Ground 3 is however held by me to be competent.
Before I consider the issues formulated by the cross Appellant, I observe that of the three issues so formulated, no issue is distilled from the first ground of appeal. The 1st ground states:-
“The learned trial judge erred in law in granting to the Plaintiff a relief not sought by it”.
Clearly, there is no issue distilled from this ground of appeal. It is trite that where no issue is formulated from a ground of appeal, that ground is deemed abandoned. See Bilwadam Construction Co. Nig. Ltd V. DRAGOMIR (2002) FWLR (pt 109) 1630, Eholor V. Osayande (1992) 6 NWLR (pt 249) 524. In this appeal, ground one of the grounds of appeal is hereby struck out having been abandoned.
Again, having struck out ground 4, issue 3 formulated therefrom is also incompetent because an issue arising from an incompetent ground of appeal is itself rendered incompetent. See Amadi V. Orisakwe (1997) 7 NWLR (pt 511) 161.

As this appeal stands, it is left with grounds 3 and 5 and issues 1 and 2 thereof. I shall determine this cross Appeal on the two issues left in this appeal. The learned counsel for the cross-Appellant had argued the issues together and I shall endeavour to take it as such. The issues are whether the cross Respondent proved the issue of deceit and whether the learned trial judge properly evaluated the evidence.
On the issue of deceit, the learned counsel for the cross Appellant submitted that the learned trial judge misdirected himself as to the standard of proof required having regard to the plaintiff’s claim that it was deceived into deposition of the certificate of occupancy. That deceit, being a criminal or wrongful act ought to be proved beyond reasonable doubt as envisaged by section 138(1) and (2) of the Evidence Act. He relies on the case of Nwobodo V. Onoh (1983) 10 SC 42 and Omoboriowo V. Ajasin (1983)10 SC 178.
It was learned counsel’s further submission that the court below failed to evaluate the evidence before coming to its decision. This is in relation to issue No.2. In sum, he urged this court to hold that the court below abandoned its duty by that failure, citing the case of Uka V. Inelo (2002) 7 SCNJ 137. The learned counsel further made much weather on the issue of a pending matter in another court which the court below imported. With due respect, this is not argument for any of the two issues in this cross appeal and I do not intend to consider them here, moreso since the argument had been considered and determined in the main appeal. The learned counsel then urged this court to allow the cross – appeal.
In his reply, the learned counsel for the cross Respondent submitted that the argument of the cross
Appellant on the issue of deceit is misconceived. That the Cross Respondent pleaded and testified that Pw1 handed over Exhibits 1 & 2 to the Cross Appellant for another facility. That the former manager of the Cross Appellant failed to appear in court and did not testify to rebut the Cross Respondent’s case. He further contended that the evidence of Dw1 & Dw2 on the issue of Exhibits 1 & 2 are hearsay and are inadmissible within the meaning of section 77(b) of the Evidence Act. That even if the standard of proof required on the point is as provided in section 138(1) & (2) of the Evidence Act, the evidence of the Pw1 satisfied the standard because there is no evidence on the other side of the scale to compare. He then urged the court to hold that the Cross Respondent proved his case on the issue.
On the issue of evaluation of evidence, he referred to pages 19 – 23 of the record and submitted that the learned trial judge properly reviewed and evaluated the evidence before making his well founded decision. He urged the court to resolve this issue against the Cross Appellant.
The main issue before the court below both in the main claim and the counter-claim was to determine whether the originals of Exhibits 1 & 2 were handed over by the Cross Respondent to the Cross Appellant voluntarily in support of an earlier transaction as security or that it was deposited for a new or enhanced facility. After reviewing the evidence of both parties, the learned trial judge at page 26 of the record found as follows:
“It is very clear that the existing mortgage had long been signed and given effect that while the defendants have not complained in writing as the security in the existing agreement, the plaintiff had gone to apply for additional loan.
The court must hold that the claim of the plaintiff that they were asked to present the new security in order to obtain more loan is more probable than the defence of the defendant that they requested the plaintiff to provide additional security simply to cover the old existing facility”.
Was the learned trial judge right in his finding? The evidence before the court will answer this question. Apart from Pw1 who was the Managing Director of the Cross Respondent and who testified in this case, the two witnesses called by the Cross Appellant have no personal knowledge of the transaction between the parties. For instance the Dw1 on page 14 of the record states under cross-examination as follows:-
O-A. Dada – You told the court that Hani Akar willingly surrendered the certificate to B. A Kareemu?
Dw1 – Yes I was told during one of our management meetings. The certificate of occupancy No. LKN/RES/RC/82/1857 was not part of the Security tendered at the original grant of the facility”.
The Dw1, apart from saying that he was told about the transaction, stated that Exhibits 1 & 2 were not part of the original transaction between the parties.
There is not a doubt here that the evidence of Dw1 is hearsay as far as the issue of Exhibits 1 & 2 is concerned. He also told the court as staff of the Cross Appellant that Exhibit 1 & 2 were not part of the original transaction.
The Dw2 told the court below that both the original facilities and the enhancements were approved by the head office of the Cross Appellant and that he was not there when the approvals were made. He also stated that Exhibits 1 & 2 were given to cover photocopies of documents submitted by the Cross Respondent and that the originals of the photocopies are non existent. There is no indication that the said photocopies were tendered in evidence to prove this point. The withholding of the said photocopies, in my view works against the Cross Appellant because by section 149(d) of the Evidence Act, evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
The Pw1 told the court below that when the Appellant needed more money, it approached the Manager of the Cross Appellant with Exhibits 1 & 2 and he promised to facilitate a new facility but that when the Cross Appellant took the said Exhibits, it detained them on the pre that his facility had grown above N100M. The Kano Branch Manager of the Cross Appellant, up till now has not been called to testify on the issue. All that is left on the issue is the evidence of the Pw1 alone.
The question now is whether the learned trial judge was right to prefer the evidence of the Pw1 to that of Dw1 & 2. For me, it appears that the Cross Appellant failed to lead credible evidence to challenge the evidence of the Cross Respondent. This is so because the only evidence led by them in the matter is hearsay and goes to no issue.
I hold that the evidence of the Pw1 was unchallenged and uncontroverted and the court below was right to rely on it to reach the conclusion which it did. See Adams V. A. G. Fed (2006) 11 NWLR (pt 991) 341, Gege V. Nande (2006) 10 NWLR (pt 988) 256.
The conclusion of the lower court that the originals of Exhibits 1 & 2 were not part of the original transaction is even corroborated by the cross Appellant’s witnesses. Moreso, the transaction was approved at the head office of the cross Appellant. Where a bank approves a transaction between it and its customer by its authorized personnel without stating that it was upon a condition precedent, it cannot be heard to say so thereafter.
The Cross Appellant contends that the Cross Respondent did not prove the deceit beyond reasonable doubt. I wonder what further evidence was required. The Cross Respondent through Pw1 gave gravic evidence of how he was deceived into parting with his document on the guise that he would be granted further facilities. He tendered photocopies of the said documents. The Cross Appellant admitted receiving the said documents. I think the Cross Respondent discharged the onus placed on it in the circumstance. The Cross Appellant which also stated that the cross respondent deceived it by giving them photocopies of a none existence Certificate of Occupancy, failed to tender the said photocopy and also failed to call its Manager in the centre of the storm to testify. Rather, it brought persons who had no personal knowledge of the transaction to testify. So as between the Cross Appellant and the Cross Respondent, who should complain that allegation of deceit has not been proved?. I think the learned trial judge was right in finding for the Cross Respondent.
On the whole, I am of the opinion that the court below was right to have dismissed the cross appeal. Accordingly, I hold that the two issues left in the cross appeal are resolved against the Cross Appellant. The Cross appeal lacks merit and is hereby dismissed by me. Both parties are to bear their respective costs.

MOHAMMED LAWAL GARBA, (J.C.A): My learned brother OKORO, JCA has as usual, beautifully considered the vital issues which require decision in this appeal in the lead judgment, a draft of which he availed me before now. I am in complete agreement with the views expressed by him on both the appeal and the cross appeal which represent restatements of the law on the issues canvassed therein.
I do not wish to say more, but that I agree with the lead judgment.

THERESA NGOLIKA ORJI-ABADUA, (J.C.A.): I, agree.

Appearances

O. A. Dada EsqFor Appellant

AND

Counsel for the Respondent/Cross Appellant is absentFor Respondent