INNTRACO UNIVERSAL SERVICES LTD v. UNION BANK (2020)

INNTRACO UNIVERSAL SERVICES LTD v. UNION BANK

(2020)LCN/14014(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/L/527/2016

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

INNTRACO UNIVERSAL SERVICES LTD APPELANT(S)

And

UNION BANK OF NIGERIA PLC RESPONDENT(S)

RATIO

WHETHER OR NOT DOCUMENTARY EVIDENCE FURNISHED BEFORE THE LOWER COURT SHOULD BE PLACED ON THE RECORD OF APPEAL

It is germane to place on record, that a flood of documentary evidence were furnished before the Lower Court by the feuding parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the Lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135;Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96;Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410. I will reap from this co-extensive jurisdiction in the assessment of the galaxy of documentary evidence in this appeal. PER OGBUINYA, J.C.A.

WHETHER OR NOT A PARTY WHO CLAIMS INTEREST AS OF RIGHT MUST PLEAD FACTS TO SHOW SUCH ENTITLEMENT IN THE STATEMENT OF CLAIM

Where a party claims interest as of right, pre-judgment interest, the legally accepted/sanctioned practice is to claim entitlement to it on the writ of summons and plead facts that will show such entitlement in the statement of claim, see London, Chalham & Dover Railway v. S.E. Railway (1893) A.C. 429; Ekwunife v. Wayne (W/A) Ltd. (1989) 5 NWLR (Pt. 122) 422; Daniel Holdings Ltd. v. UBA PLC (2005) 13 NWLR (Pt. 943) 533; Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt. 1172) 67; S.A.F.P & U v. UBA PLC (2010) 17 NWLR (Pt.1221) 192; A.G. Ferrero & Co. Ltd. v. H.C. Ltd. v. H.C. (Nig) Ltd. (2011) 13 NWLR (Pt. 1265) 592; Intercontinental Bank Ltd. v. Brifina Ltd (2012) 13 NWLR (Pt. 1316) 1; A.I.B. Ltd. v. I.D.S. Ltd. (2012) 17 NWLR (Pt. 1328) 1; Unity Bank PLC v. Denclag Ltd. (2012) 18 NWLR (Pt. 1332) 293; Wema Sec & Fin. PLC v. N.A.I.C. (2015) 16 NWLR (Pt. 1484) 93; Interdrill (Nig.) Ltd. v. U.B.A. PLC (2017) 13 NWLR (Pt. 1581) 52; Edilcon (Nig) Ltd. v. UBA PLC (2017) 18 NWLR (Pt. 1596) 74; Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. PER OGBUINYA, J.C.A.

WHETHER THE COURT TAKES JUDICIAL NOTICE OF CLAIM OF INTEREST RATE

Besides, the law commands and makes it incumbent on a party claiming interest to prove even the interest rate as the Court is disrobed of the jurisdiction to take judicial notice of it, see Daniel Holdings Ltd. v. U.BA. Plc (supra); Julius Berger (Nig) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. Interest rate denotes “the percentage of an amount of money which is paid for its use for a specified time”, see Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (supra) at 506, per Tanko Muhammed, JSC (now CJN). PER OGBUINYA, J.C.A.

WHETHER OR NOT A COUNTER-CLAIM IS AN INDEPENDENT AND SEPERATE ACTION TRIABLE WITH THE MAIN CLAIM

To begin with, it is settled law, beyond any per adventure of doubt, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter- claimant in order to earn the favour of the Court, see Ogbonna v. A-G., Imo State (1992) 1 NWLR (Pt. 220) 647;NsefIk & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante Int’l Ltd v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017)1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152. PER OGBUINYA, J.C.A.

DEFINITION OF AN ADMISSION

In the mind of the law, admission connotes a statement, oral or documentary made by a party which suggests any inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei V. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (supra); N.A.S. Ltd V. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. In the view of the law, an admitted fact does not need any further proof, see Our Line v. S.C.C. Nig. Ltd. (2009) SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Al-Hassan v. Ishaku (supra); Jitte v. Okpulor (2016)2 NWLR (Pt. 1497) 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orianzi V. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. MCSN (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A.& F.C. v. Johnson (2019) 2 NWLR (Pt. 1656) 247. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the correctness of the High Court of Lagos State, holden in Lagos (herein under addressed as the Lower Court) coram judice: B.A Oke-Lawal, J. in the Suit No. LD/820/2010, delivered on 19th February, 2016. Before the Lower Court, the appellant and the respondent were the claimant and the defendant respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The appellant, a customer of the respondent, opened an account with the respondent’s Okigwe branch, in Imo State of Nigeria, in 1999. The account number was 51137003 which was upgraded to 5751020003818. In the course of the banker/customer relationship, between 2001-2007, at the behest of the appellant, the respondent granted various overdraft facilities to the appellant. The loan facilities were secured with the certificate of occupancy of Mr. Innocent Okorie, the alter ego of the appellant. The appellant alleged that the respondent failed to credit some of its lodgments into its account as well as overcharged the interests

accruing to the loan facilities. The appellant derived its allegations from the reports of two accounting firms, it engaged, as well as a joint report which emanated from the intervention by the Economic and Financial Crimes Commission (EFCC). The appellant claimed that the respondent refused to pay to it the un-credited lodgments and overcharged interests after it had repaid the loan facilities. Sequel to that, the appellant beseeched the Lower Court, via a writ of summons filed on 27th April, 2010 and tabled against the respondent the following reliefs:
a. Payment of the sum of N16,750,942.64 (Sixteen Million, Seven Hundred and Fifty Thousand, Nine Hundred and Forty Two Naira, Sixty Four Kobo) being the total sum of un-credited cash and cheque deposits made by the claimant at the Okigwe Branch of the Defendant from February 21 2000 to December 2, 2005 and pursuant to the agreement reached by the parties in September 2009.
b. Payment of the accrued interest on the liquidated sum of N16,750,942.64 (Sixteen Million, Seven Hundred and Fifty Thousand, Nine Hundred and Forty Two Naira, Sixty Four Kobo) in the sum of N117, 384,198.52 (One Hundred

and Seventeen Thousand, Three Hundred and Eighty Four Thousand, One Hundred and Ninety Eight Naira, Fifty Two Kobo) calculated on basis of Central Bank of Nigeria prevailing interest rate and Minimum Re-discount Rate (MRR) as stipulated in Monetary Policy No 37 of 2004 and particularly made out in Schedule IA annexed to this claim, from February 21, 2000 to December 12 2005 up to the date of filling and determination of this matter, till judgment is satisfied on same rate.
c. Payment of N16,779,233.76 (Sixteen Million, Seven Hundred and Seventy Nine Thousand, Two Hundred and Thirty Three Naira, Seventy Six Kobo) being the total sum of un-credited cash and cheque deposits made by the claimant at the Okigwe Branch of the Defendant from May 25th, 2000 to August 24th, 2007, evidenced by Tellers within the Defendant’s possession, sighted and relied on by joint reconciliation committee pursuant to the agreement reached by both parties.
d. Payment of the accrued Interest on the sum of N16,779,233.76 (Sixteen Million, Seven Hundred and Seventy Nine Thousand, Two Hundred and Thirty Three Naira, Seventy Six Kobo) in the sum of N170,295,698.09 (One Hundred

and Seventy Thousand, Two Hundred and Ninety Five Thousand, Six Hundred and Ninety Eight Naira, Nine Kobo) calculated on basis of Central Bank of Nigeria prevailing interest rate and Minimum Re-discount Rate (MRR) as stipulated in Monetary Policy No 37 of 2004 and particularly made out in Schedule 1B annexed to this claim, from 23 May 2000 to August 24 2007, up to the date of filling and determination of this matter, till judgment is satisfied on same rate.
e. Payment of the sum of N6,979,940.36 (Six Million, Nine Hundred and Seventy Nine Thousand, Nine Hundred and Forty Naira, Thirty Six kobo) being the excess interest charged on overdraft facilities granted by the Defendant to the Claimant between May 2001 to June 2008.
f. Payment of the sum of N31,102,901.96 (Thirty One Million, One Hundred and Two Thousand, Nine Hundred and One Naira, Ninety Six Kobo) being accrued interest on N6,979,940.36 (Six Million, Nine Hundred and Seventy Nine Thousand, Nine hundred and Forty Naira, Thirty Six kobo), the excess interest charged on the overdraft facilities granted to the Claimant by Defendant from May 2001 to June 2008 calculated on basis of Central

Bank of Nigeria prevailing interest rate and Minimum Rediscount Rate (MRR) as stipulated in Monetary Policy No 37 of 2004 and particularly set out in Schedule 28 annexed to this claim, from May 2001 to June 2008, up to the date of filling and determination of this matter, till judgment is satisfied on same rate.
g. Release of Statutory Certificate of Occupancy with NO – 80/80/19 with Plan No DS 19430/GM 78/90 dated 9/4/90 and issued by Imo State Government and belonging to Mr. Innocent Okororie, the Managing Director of the Claimant which was at a time used as collateral for an overdraft facility that has been repaid by the Claimant.
c. Costs of this action in the sum of N5 million.

In reaction, the respondent joined issue with the appellant and denied liability by filing a statement of defence and counter-claim. In its pleading, the respondent alleged that the appellant was indebted to it as it failed or neglected to repay the sums involved in the loan facilities. As a result, it counter-claimed and solicited from the appellant the following reliefs:
i. The sum of N26,645,114.39 (Twenty Six Million, Six Hundred and Forty Five, One

Hundred and Fourteen Naira, Thirty Nine Kobo) being the amount which became due from the Defendant to the Counter-Claim to the counter-claimant by virtue of the several overdraft/loan facilities granted by counter-claimant to the Defendant to the counter-claim.
ii. Interest on the above sum at the rate of 22% until judgment is given in this suit and 17% from the time judgment is given until the final liquidation of the sum.
iii. The costs of this suit accessed at N5,000,000.00 (Five Million Naira).

Following the rival claims, the Lower Court had a full-scale determination of the case. In proof of the case, the appellant fielded two witnesses CW1 and CW2. In disproof of the case, the respondent called one witness, DW1. A galaxy of documents were tendered as exhibits. At the closure of evidence, the parties through their respective counsel, addressed the Lower Court. In a considered judgment, delivered on 19th February, 2016, found at pages 954, 955-972 volume II, of the record, the lower Court, granted the main claim and the counter-claim in parts.

The appellant was dissatisfied with the decision. Hence, on 14th March, 2016, the appellant

lodged a 4-ground notice of appeal, copied at pages 973-977, volume II, of the record. Subsequently, the appellant, with the leave of this Court, filed an amended notice of appeal on 30th June, 2017 and deemed properly filed on 25th April, 2017, hosting six grounds, and prayed this Court as follows:
i. An Order allowing this Appeal and setting aside part of the judgment of Lagos State High Court refusing to award interest on the un-credited lodgment and interest overcharge.
ii. An Order that the un-credited lodgment of N10,883,665.00 made by the Appellant into its account with the Defendant/Respondent liquidated the overdraft facility granted to it by the Respondent and that the Appellant does not owe the Respondent.
iii. An Order that the Appellant is entitled to interest on the un-credited lodgment of N10, 883, 665 and overcharged interest of N2,645,072.16 on its account at 19% per annum and/or in line with the Central Bank of Nigeria (CBN) Rule/Policy 2009.
iv. An Order that the Respondent has failed to prove the Appellant’s alleged indebtedness to it as Statement of Account without more is not sufficient proof of one’s

indebtedness to another.

Thereafter, the parties filed and exchanged their respective briefs of argument in line with the rules regulating the hearing of civil appeals in this Court. The appeal was heard on 10th February, 2020.

During its hearing, learned counsel for the respondents, A. Nwachukwu, Esq., adopted the respondent’s brief of argument, filed on 16th March, 2018 and deemed properly filed on 21st March, 2018, as representing his arguments against the appeal. He urged the Court to dismiss it. The appellant’s brief of argument, settled by Emmanuel Odogwu Esq., was filed on 15th November, 2017 and deemed properly filed on 21st March, 2018. The appellant’s reply brief, franked by Gift Ike Esq., was filed on 10th January, 2019. The appellant was duly served. Consequently, the Court treated the appeal as duly argued pursuant to the provision of Order 19 Rule 9 (4) of the Court of Appeal Rules 2016.

In the appellant’s brief of argument, learned counsel distilled four issues for determination to wit:
1. Whether in the circumstances of this case, the Appellant is required to prove its entitlement to interest before

the Court can award same in its favour in respect of the un-credited lodgment and the overcharged interest?
2. Whether the Court having held that there was un-credited lodgment in the Appellant’s account and also overcharged interest ought not to have awarded interest in favour of the Appellant on the said amount in view of the fact that the Court awarded interest in favour of the Respondent in respect of overdraft facility the Respondent granted to the Appellant which the lodgment was meant to liquidate?
3. Whether a mere tendering of a statement of account by the Respondent without more is sufficient for the Court to have arrived at the conclusion that the Respondent has established the Appellant’s indebtedness to it?
4. Whether the Appellant is entitled to the Counter Claim in view of the fact that the claim comprises the principal sum, the interest and penalty for default of payment having regard to the facts the Appellant deposited money that was not credited into its account?

Similarly, in the respondent’s brief of argument, learned counsel crafted five issues for determination viz:
1.21 Whether the

appellant is required to prove its entitlement to interest before the Court can award same in its favour in respect of the un-credited lodgment and the overcharged interest? Distilled from ground 1 of the appellant’s Amended notice of appeal.
1.22. Whether the Court below having held that there was un-credited lodgment in the Appellant’s account and also overcharged interest ought not to have awarded interest in favour of the Appellant on the said amount in view of the fact that the Court awarded interest in favour of the respondent in respect of overdraft facility the respondent granted to the Appellant which, the lodgment was meant to liquidate? Distilled from grounds 2 and 3 of the appellant’s amended notice of appeal.
1.23. Whether the Court below was right when it held that the respondent had established the appellant’s indebtedness to it (respondent) based on available evidence? Distilled from ground 5 of the appellant’s amended notice of appeal.
1.24. Whether the Court below was right when it held that the appellant admitted its indebtedness to the respondent? Distilled from ground 6 of the

appellant’s amended notice of appeal.
1.25. Whether the appellant is entitled to the counter-claim in view of the fact that the claim comprises the principal sum, the interest and penalty for default payment in view of the fact that the appellant lodged in money that was not credited? Distilled from ground 4 of the appellant’s amended notice of appeal.

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s five issues can, conveniently, be subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues formulated by the appellant; the undoubted owners of the appeal.

Arguments on the Issues
Issues one and two
Learned counsel for the appellant submitted that interest could be awarded by a Court without proof of it. He enumerated the situations interest could be awarded to a party and when Court could do so under its discretions. He relied on Faagol Instrument Ltd. v. NBN Ltd.(1993) 1 NWLR (Pt. 271) 586; UBN Ltd. v. Sax (Nig) Ltd. (1991) 7 NWLR (Pt. 202) 227; UBN Ltd. v. Ozigi (1991) 2 NWLR (Pt. 176) 677; Ekpan v. Uyo (1986)

3 NWLR (Pt. 26) 63. He noted that, when interest could be awarded as of right, it must be claimed and pleaded in the writ and statement of claim respectively. He referred to Himma Merchants Ltd. v. Aliyu (1994) 5 NWLR (Pt. 347) 667; Akpabuyo L.G. v. Duke (2001) FWLR (Pt. 53) 118/ (2001) 20 WRN 80. He conceded that a party must plead and prove interest on sum of money. He added that the parties herein never agreed on interest on the un-credited lodgments so that the appellant could not have been expected to prove its interest. He asserted that on commercial matter where money would have been paid a long time ago, it ought to carry interest. He cited Nigerian General Superintendence Co. Ltd. v. NPA (1990) 1 NWLR (Pt. 129) 741; Daniel Holdings Ltd. v. UBA PLC (2005) FWLR (Pt. 277) (895); A.I.B. Ltd. v. Integrated Dimensional System Ltd. (2012)17 NWLR (pt. 1328) 1; Sterling Bank PLC v. Falola (2014) LPELR-22529 (CA); NBN Ltd. v. Savol W.A. Ltd. (1994) 3 NWLR (Pt. 333) 435.

Learned counsel posited that the respondent ought to pay the appellant interest on its withheld money without proof of it. He reasoned that the Lower Court had the discretion to determine

the rate of interest provided it acted judicially and judiciously. He cited Business Computers Ltd. v. Anglo African Leasing Ltd. (1977) 1 WLR (Pt. 578); Tende v. A-G. Federation (1988) 1 NWLR (Pt. 71) 506. He listed the considerations available to the Lower Court. He referred to Rhor and Lue Nig. Ltd. v. BON Ltd. (2007) LPELR-9037 (CA). He observed that the Lower Court should have applied the prevailing interest rate by the Central Bank of Nigeria allowed under Section 15 of the Banking Act. He persisted that the appellant was entitled to interest on the un-credited lodgment at the rate of 19% based on the Central Bank Monetary Policy No. 37 of 2004. He advocated, in the alternative, for 19% which was applied for the loan facilities. He described it as inequitable to charge the appellant interest on the loan facilities without the respondent pay it interest on the un-credited lodgments and overcharged interest.

On behalf of the respondent, learned counsel submitted that the Lower Court adopted the Court approved referee’s report, Exhibits F and G, tendered by the appellant’s witness, CW2, in its judgment. He noted that the appellant was estopped

from challenging the evidence of its witness. He relied on Section 151 of the Evidence Act, 2011; A-G Rivers State v. A-G, Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31; Ude v. Osuji (1998)10 SCNJ 75/(1998) 13 NWLR (Pt. 580) 1. He described the reports, Exhibits F and G, as admission against interest. He cited Olatunji v. Adisa (1995) 2 SCNJ 90; Kano v. Govt., of Adamawa State (2014) LPELR-24161 (CA). He added that admitted fact needed no proof. He referred to Ifeanyichukwu T.I.V. Ltd. v. Onyesom Community Bank Ltd. (2015) 17 NWLR (Pt. 1487) 27; Adusei v. Adebayo (2012) 1 S.C. (Pt.iv) 95. He observed that the appellant did not challenge the Lower Court’s adoption of the recommendations and conclusion in Exhibit G. He added that the appellant could not approbate and reprobate Exhibit G. He cited UBA PLC v. Samba Pet Co. Ltd. (2002) 16 NWLR (Pt. 793) 361. He said that only a party affected by a decision could appeal against it. He referred to Mobil Producing (Nig) Unltd v. Monokpo (2003) 18 NWLR (Pt. 852) 346. He claimed that Exhibit G did not award interest to the appellant.

Learned counsel posited that the appellant did not plead and prove the daily,

monthly and yearly lodgments and interests on the alleged sums. He persisted that the appellant did not prove its claim for interest and its calculation by stating the year, months and dates. He reasoned that the appellant did not plead and prove the interest rates. He asserted that the appellant’s CW1, who was not an expert, could not rely on the proposed evidence of Mr. Eze, who did not give evidence nor cross-examine. He relied on Sections 68-78 of the Evidence Act, 2011; Nagebu Co. (Nig.) Ltd. v. Unity Bank PLC (2014) 7 NWLR (pt. 1405) 42; ANPP v. Usman (2008) 12 NWLR (Pt. 1100) 1; A-G, Fed. V. Abubakar (2007) 10 NWLR (Pt. 1041) 1. He described Exhibit A as dumped on the Lower Court contrary to the law. He cited ACN v. Lamido (2012) 8 NWLR (Pt. 1303) 560; ACN v. Nyako (2015) 18 NWLR (Pt. 1491) 352; Ucha v. Elechi (2012) 3 SC (pt. 1) 26; APGA v. Al-Makura (2016) 5 NWLR (Pt. 1505) 316. He stated that the interest granted to the respondent was on 18%, not 19%, as claimed in the appellant’s counsel’s address which would not replace evidence. He relied on Moses v. Onu (2013) LPELR-20348 (CA). He declared that the cases cited by the

learned appellant’s counsel were inapplicable to the appeal.

On points of law, learned counsel for the appellant submitted that the appellant needed to prove interest before its award by the Court. He enumerated the situations under which pre-judgment interest could be awarded. He relied on NGSC Ltd. v. NPA (1990) 1 NWLR (pt. 129) 741; A.G Ferrera & Co. Ltd. v. Henkel Chemicals Nig. Ltd. (2011) All FWLR (Pt. 587) 647.

Issues three and four
Learned counsel for the appellant submitted that the respondent had the burden to prove its assertion that the appellant was indebted to it to the tune of N20m claimed. He relied on Section 131 of the Evidence Act 2011; Abara v. Igbo (2013) LPELR-21246. He stated that none of the respondent’s documents, Exhibits A-P4, especially exhibits E3, H1, E4, H3, H5, P1, P2 and P3, explained how it arrived at the amount claimed. He claimed that a statement of account, without evidence on it, was not sufficient explanation of debts as the Court would go into private calculation not allowed in law. He cited B.E.G.H. Ltd. v. U.B.S. & L Ltd. (2011) 7 NWLR (pt. 1246) 246; Habi (Nig) Bank Ltd. v. Gifts Unique (Nig) Ltd.

(2004) 15 NWLR (Pt. 896) 408. He maintained that the Lower Court did private investigation of the documents.

It was contended by learned counsel that the appellant only admitted loan facilities which it had paid. He explained that admission must be clear and unequivocal. He relied on Mariden Trust Lt. v. NIMB Ltd. (2001) 4 SC (Pt. 1) 25; Kano v. The Govt. of Adamawa State (2014) LPELR-24161 (CA); Orji v. Dorji Textiles Mill (Nig) Ltd. (2009) 12 SCNJ 251. He reasoned that if the un-credited lodgments had been credited, the appellant would not be indebted to the respondent. He faulted the Court Appointed Referee’s conclusion of the appellant’s debt in its reports, Exhibits F and G, as reached without considerations of the overcharged interest and un-credited lodgments of N2m and N10m respectively as admitted by the respondent’s witness, DW1, under cross-examination. He concluded that the amount the respondent claimed comprised the principal sum, interest and the penalty for default of payment. He added that if the respondent had credited the lodgments as and when due, there would have been no need for those charges as the

overdraft facility would have been fully paid. He insisted that the appellant was not indebted to the respondent.

For the respondent, learned counsel explained the fluctuating nature of burden of proof. He relied on Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) 133; Oyoubiare v. Omamurhomu (1999) 10 NWLR (Pt. 621) 23; Sections 131 and 136 of the Evidence Act, 2011. He conceded that the respondent had the burden to prove its counter-claim. He cited Orient Bank (Nig) PLC v. Bilante International Ltd. (supra) (sic-no citation); Afolabi v. Polymera Ind. Nig. Ltd. (1967) 1 All NLR SC. He reasoned that the appellant’s reply to the counter-claim predated it which made the evidence of DW1 on the counter-claim admitted by the appellant. He referred to Seismograph Services Nig. Ltd. v. Eyuafe (1976) 9-10 SC; Ogunnaike v. Ojayemi (1987) 3 SC 213. He noted that the appellant, in its pleading and evidence, admitted the loan facilities but that it repaid them. He observed that the appellant had a duty to be consistent in its case. He relied on Bank of Baroda v. MBN Ltd. (1987) 2 NSCC 892; Enekwe v. IMBN Ltd. (2006) 19 NWLR (Pt. 1013) 146; Solanke v. Abed (1961-2) 2

NSCC 16. He stated that the respondent’s Exhibits E1, E2, E3, H1 and H2 showed that the appellant took another facility it did not repay. He said that those exhibits, attached to the respondent’s pleadings, formed part of them. He cited Marine Management Associates INC v. NMA (2012) 18 NWLR (Pt. 1333) 506. He asserted that the appellant’s payments made on 24th and 31st January, 2007 predated the overdraft facility of 22nd October, 2007. He said that the appellant did not show that it was challenging the record of the Lower Court. He referred to Agbeotu v. Brisibe (2005) All FWLR (Pt. 257) 145; Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd. (1993) 1 NWLR (Pt. 271) 538. He reproduced the cross-examination CW1 where he accepted the overdraft facility as renewal facility. He asserted that renewal showed a previous loan facility in existence and something could not be put on nothing. He relied on Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723; UAC v. Macfoy (1961) ALL ER 1169/(1962) 6 SC 221/(1962) AC 152; Odua Invest. Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1. He noted that Exhibits F and G confirmed the appellant’s indebtedness

to the respondent.

Learned counsel contended that a Court would be entitled to act on admission once clear and unequivocal as admitted fact needed no proof. He relied on Habib Nig. Bank Ltd. v. Gifts Unique Nig. Ltd (2004) 5 NWLR (Pt. 896) 408; Owosho v. Dada (1984) 7 SC 149; NBN Ltd. v. P.B. Olatunde & Co. Nig. Ltd, (1994) 3 NWLR (Pt. 334) 512. He claimed that the evidence of CW1 and CW2 supported the respondent’s position and it was entitled to rely on them. He cited Woluchem v. Gudi (1981) 5 SC 291; Niger Construction Ltd. v. Okugbeni (1987) 11-12 SCNJ 133/(1987) 4 NWLR (Pt. 67) 787; Ndulue v. Ojiakor (2013) 8 NWLR (pt. 1356) 311; Lewis & Peat (N.R.I) Ltd. v. Akhimien (1976) 1 All NLR 460; Adeosun v. Governor of Ekiti State (2012) 4 NWLR (Pt. 1291) 581; Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517; NBN v. T.A.S.A. Ltd. (1996) 8 NWLR (Pt. 468) 511; Sections 20-24 of the Evidence Act, 2011.

It was argued by counsel that Exhibit G was in tandem with Exhibits A, P1-P3, the statement of account tendered by the appellant and produced by the respondent based on notice to produce as required by law. He referred to Buhari v. Obasanjo

(2005) 7 SCNJ 1; Udeagha v. Omegara (2010) LPELR -3856 (CA). He added that the respondent in Exhibit O3 satisfied the requirement of Sections 89 and 84 of the Evidence Act, 2011. He observed that Exhibits P1-P3 emanated from proper custody and complied with Sections 84, 98 (h) and 90 (e) of the Evidence Act, 2011 as depicted in Exhibits 03 and P4. He referred to Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534. He insisted that Exhibits P1-P3, supplemented by the evidence of DW1, showed the appellant’s indebtedness. He relied on Anyaebosi v. R.T. Brisco Ltd. (1987) 3 NWLR (Pt. 59) 84; FRN v. Fani-Kayode (2010) 14 NWLR (Pt.1214) 481; Trade Bank PLC v. Chami (2004) All FWLR (Pt. 235) 118; Narindex Trust Ltd. v. N.I.C.B. Ltd. (2001) FWLR (Pt. 49) 1546. He explained that the oral evidence of CW1 would not be admissible to contradict the documentary evidence in Exhibits B2, B1 and 1. He cited B.M.N.L. v. Ola Ilemobola Ltd. (2007) All FWLR (pt. 379) 1340; Section 128 of Evidence Act, 2011; UBN v. Nwaokolo (1995) 6 NWLR (Pt. 400) 120; UBN Ltd. v. SAX (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150/(1994) SCNJ 1; Brossette Manufacturing Nig. Ltd. v. M & S.O.I Ltd.

(2007) WRN (vol. 44) 88. He persisted that Exhibits P1-P3, which was the same with exhibit, were not dumped on the Lower Court. He referred to Ojegele v. State (1988) 1 NWLR (Pt. 71) 414; Bamgboye v. Olusoga (1996) 4 NWLR (Pt. 444) 520.

Learned counsel further contended that the appellant could not challenge the evidence of CW2 without treating him as a hostile witness nor the findings in Exhibits F and G it tendered. He relied on Section 68 of the Evidence Act, 2011; UBA PLC v. Patkan Ventures Ltd.(2017) LPELR-42392; Sowemimo v. State (2004) 11 NWLR (P. 885) 515; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Ogwuru v. C.B.E (Nig) Ltd. (1984) 8 NWLR (Pt. 365) 685; Solanke v. Abed (supra); UBA Ltd. v. Ibhafidon (supra). He analysed the various elements of contract, the binding of contract and parties and the effect of its breach to show that the appellant was, by Exhibits E1 and H1, indebted to the respondent. He relied on Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Best (Nig) Ltd. v. B.H (Nig) Ltd. (2011) 5 NWLR (Pt. 1239) 95; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283. He concluded that the Court would resort to literal rule in the

construction of document except where the words used were unclear. He cited Adetoun Oladeji (Nig) Ltd. v. Nigerian Breweries PLC (2007) 5 NWLR (Pt. 1027) 415; Odutola v. Papersack (Nig.) Ltd. 2006 18 NWLR (Pt. 1012) 470.

On points of law, learned appellant’s counsel argued, per contra, that it was the respondent that breached the terms of the contract. He added that the appellant was not challenging Exhibits F and G, but that it was not within the power of the Referee to award interest to it.

Resolution of the issues
It is germane to place on record, that a flood of documentary evidence were furnished before the Lower Court by the feuding parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the Lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135;Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325)

51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96;Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410. I will reap from this co-extensive jurisdiction in the assessment of the galaxy of documentary evidence in this appeal.

Having been properly equipped by the above position of the law, I will proceed to handle the issues in their numerical sequence of presentation by the parties. The parties fused the arguments on issues one and two together. I will, in order to conserve the scarce judicial time and space, amalgamate their consideration. The kernel of the joined issues, which is seemingly stubborn, is canalised within a slim scope. It chastises the Lower Court’s failure to award interest to the appellant on the un-credited lodgments and overcharged interest on the footing of want of proof.
By way of prefatory remarks, interest houses

variegated concepts and categories. In financial transaction, upon which the appeal orbits, interest connotes compensation permitted by law or agreed/fixed by the parties for the use or forbearance of borrowed money. It is the money/payment a borrower pays a lender for the use of the money sought and obtained by the borrower from a lender. It is the cost of utilisation of credit or funds of another, see Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (Pt. 1105) 486. In the wide realm of financial firmament, interest may be awarded, by a Court, in two distinct circumstances, videlicet: (a) As of right and (b) Where there is power bestowed/conferred by statute to do so in exercise of Court’s discretion. The first specie relates to pre-judgment interest-one that has accrued to a party either from the date of loss/complaint to date of final judgment of Court. It also wears/bears the appellation of moratory interest. The second class appertains to a post-judgment interest which is posterior to judgment of Court. Interest may be claimed as of right, pre-judgment interest, where it is contemplated by the agreement of the parties or under a merchantile custom

or under a principle of equity such as breach of fiduciary relationship. Where a party claims interest as of right, pre-judgment interest, the legally accepted/sanctioned practice is to claim entitlement to it on the writ of summons and plead facts that will show such entitlement in the statement of claim, see London, Chalham & Dover Railway v. S.E. Railway (1893) A.C. 429; Ekwunife v. Wayne (W/A) Ltd. (1989) 5 NWLR (Pt. 122) 422; Daniel Holdings Ltd. v. UBA PLC (2005) 13 NWLR (Pt. 943) 533; Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt. 1172) 67; S.A.F.P & U v. UBA PLC (2010) 17 NWLR (Pt.1221) 192; A.G. Ferrero & Co. Ltd. v. H.C. Ltd. v. H.C. (Nig) Ltd. (2011) 13 NWLR (Pt. 1265) 592; Intercontinental Bank Ltd. v. Brifina Ltd (2012) 13 NWLR (Pt. 1316) 1; A.I.B. Ltd. v. I.D.S. Ltd. (2012) 17 NWLR (Pt. 1328) 1; Unity Bank PLC v. Denclag Ltd. (2012) 18 NWLR (Pt. 1332) 293; Wema Sec & Fin. PLC v. N.A.I.C. (2015) 16 NWLR (Pt. 1484) 93; Interdrill (Nig.) Ltd. v. U.B.A. PLC (2017) 13 NWLR (Pt. 1581) 52; Edilcon (Nig) Ltd. v. UBA PLC (2017) 18 NWLR (Pt. 1596) 74; Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219.

26

Now, the appellant’s chief grievance on the issues is the Lower Court’s failure to grant it interest on the un-credited lodgments and overcharged interest awarded to it. In due loyalty to the expectation of the law, I have visited the record: the bedrock of the appeal. The appellant’s 27-paragraph amended statement of claim, its last pleading, colonises pages 380-390 of the mountainous record. I have painstakingly perused it with the finery of a tooth-comb. Admirably, it is comprehension-friendly. Admittedly, the appellant solicited for accrued interest on the claimed sums of uncredited lodgments and interest overcharge in reliefs (b) (d) and (f) in the twilight of paragraph 27 of its amended statement of claim. Curiously, I am unable to find, even with the prying eagle-eye of a Court, where the appellants averred facts showcasing its entitlement to the interest claimed throughout the length and breadth of the succinct and clear statement of claim. The evidence of the appellant’s witnesses, CW1, which is a mirror image of the amended statement of claim, a fortiori, is bereft of any evidence on the supplicated interest. In other words, the

appellant, in its infinite wisdom, starved the Lower Court of factual circumstances to warrant its entitlement to the interest claimed. In the eyes of the law, the appellant’s solicitation for relief alone does not, in the least, satisfy the inelastic and twin requirements of the law to plead and prove the entitlement to interest as anatomised above by ex cathedra authorities. In point of fact, in the glaring absence of the pleading and evidence of the interest entitlement, the reliefs on interest, chronicled in the amended statement of claim, were rendered orphans. They were devoid of any legal parentage and, de jure, had no substratum to stand and command any viability. They are disabled from birth. In effect, the appellant insulted the adjectival law on award of pre-judgment interest. The defilement constitutes a serious coup de grace on its stance on the issues.
In an avowed bid to castrate the finding of the Lower Court, the appellant weaved the defence that it was entitled to interest/compensation because the respondent kept it out of its money and had used it to itself. This hallowed principle of law, anchored on deprivation and utilisation

of a borrower’s funds, traces its judicial descent to the proposition of Lord Denning, MR., in the English case of Harbutt’s Plasticine Ltd. v. Wayne & Pump Corporation Ltd. (1970) 1 All ER 225. It has taken roots in our corpus juris, see Nigerian General Superintendence Co. Ltd. v. NPA (supra); Adeyemi v. Lan & Baker (Nig.) Ltd (supra); UBN PLC v. Awmar Properties Ltd. (2018) 10 NWLR (Pt. 1626) 64. However, it would appear that the doctrine is not inflexible as “The principle…pertains to normal commercial transaction without reference to any particular agreement, oral or documentary….”, See A.G Ferrero & Co Ltd. v. H.C. (Nig.) Ltd. (supra); per Tabai, JSC;A.I.B. Ltd. v. I.D.S Ltd. (supra).
Indisputably, the appellant’s cause of action, which transfigured into the appeal, germinated from contract of loan facilities granted to it by the respondent. Besides, the law commands and makes it incumbent on a party claiming interest to prove even the interest rate as the Court is disrobed of the jurisdiction to take judicial notice of it, see Daniel Holdings Ltd. v. U.BA. Plc (supra); Julius Berger (Nig) PLC v. T.R.C.B. Ltd.

(2019) 5 NWLR (Pt. 1665) 219. Interest rate denotes “the percentage of an amount of money which is paid for its use for a specified time”, see Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (supra) at 506, per Tanko Muhammed, JSC (now CJN). The appellant, in a manner reminiscent of stinginess, did not avail the Lower Court of the interest rate on the footing of agreement of parties or Central Bank of Nigeria Guidelines. Put starkly, the Lower Court’s authority, to award interest to the appellant was totally deflated in the face of lack of interest rate. The foregoing legal exposition, with due reverence, punctures that defence, deprivation and utilisation of the funds, erected by the appellant. It clearly with due respect, exposes the poverty of the learned appellant’s scintillating arguments on the indefeasibility of the defence. It is lame and cannot fly.
In the light of this brief judicial survey, done in due consultation with the law, the Lower Court’s failure to award interest on the un-credited lodgments and overcharged interest is immaculate. It flows that all the strictures, which the learned

appellant’s counsel rained on the dismissal of those reliefs, pale into insignificance. It will smack of judicial sacrilege to tamper with a finding that is not hostile to the law. In the end, I am left with no option than to resolve the conflated issues one and two against the appellant and in favour of the respondent.

That takes me to the settlement of issues three and four. Like the other two issues, which were argued together, I will for the same reason, treat them communally. The meat of the issue is plain. It quarrels with the Lower Court’s grant of the respondent’s counter claim.

NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152.

The synopsis of the respondent’s counter-claim was that the appellant failed/neglected to defray the last loan renewal granted to it in 2007. Hence, it claimed the outstanding balance of N26.6m from the appellant. The respondent, in proof of it, tendered Exhibits E1, E2, and H2-appellant’s application letters of 11th July, 2007 and Exhibits E3 and H1 being the respondent offer letter of 18th September, 2007. The appellant accepted the loan facility on 22nd October, 2007. The loan sum was N12m.

I have, in due fidelity to the desire of the law, consulted the record; the spinal cord of the appeal. The viva voce testimony of CW1, the appellant’s star witness, monopolises pages 915-925 of the elephantine record. In the crucible of cross-examination, CW1 made responses accepting the existence of N12m loan renewal/facility to the appellant by the respondent. In our adversarial system of adjudication, the object of cross-examination is to test the credibility of an opponent’s case, see Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 466. Hence, cross-examination

occupies an Olympian position in our adversarial system of adjudication. It has been described as a “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”, see Oforlete v. State (2000) 3 NSCQR 243 at 268 per Achike, JSC. Indeed, if well utilised, it has the potential to perforate an opponent’s case, see Alfa v. Attai (2018) 5 NWLR (Pt. 1611)59.

Those responses from the CW1, elicited from the cross-fire of cross-examination are in the mind of law, potent and run pari passu with the ones from evidence-in-chief, see Gaji v. Paye (2003) NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones oozing out of examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321.

Those pieces of evidence, garnered/procured

from cross-examination are deeply rooted in the province of admission. In the mind of the law, admission connotes a statement, oral or documentary made by a party which suggests any inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei V. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (supra); N.A.S. Ltd V. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC

(2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. In the view of the law, an admitted fact does not need any further proof, see Our Line v. S.C.C. Nig. Ltd. (2009) SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Al-Hassan v. Ishaku (supra); Jitte v. Okpulor (2016)2 NWLR (Pt. 1497) 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orianzi V. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. MCSN (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A.& F.C. v. Johnson (2019) 2 NWLR (Pt. 1656) 247.

By dint of the undiluted admission, the appellant, through the ipse dixit of the principal witness, conceded that it was indebted to the respondent on the N12m contract loan. A loan signifies a sum of money lent at interest, see Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343 at 399, per Augie, JSC. Indebtedness means a state of owing money, or something owed, or debt to any other person, see Barbedos Ventures Ltd. v. FBN PLC

(2018) 4 NWLR (Pt. 1609) 241. Thus, the admission totally demolished the appellant’s denial of its indebtedness to the respondent. In my humble view, the Lower Court, acting ex debito justitiae, merely ratified the admission which binds the appellant in law. In essence, the Lower Court did not, in the least, fracture the adjectival law to warrant an intervention by this Court. I endorse, in toto, its ascription of liability to the appellant.

That is not all. At the behest of the appellant, via, an application filed on 19th December, 2011, located at pages 403-409 the record, the Lower Court appointed a Referee, Chartered Account, to harmonise the financial accounts of the parties in order to aid it in the dispensation of justice in the matter. The products/offspring of that exercise were Exhibits F and G – the latter being a final report of it. It was tendered by the appellant through CW2. Both contending parties partook in the process that mothered Exhibit G. The Lower Court adopted the report, Exhibit G, in its entirely in due obeisance to the provision of Order 27 Rule of the High Court Rules. Exhibit G monopolises pages 496-568 of the wordy

record. In paragraph 6, under the sub-head of findings, the fiscal expert, Josiel Nigeria Limited noticed at page 502 of the record, that the balance of N39,631,797.61 was outstanding in the account of the appellant on 30th June 2011. It must be stressed, that this finding, which is wrapped in Exhibit G, is a concrete documentary, as opposed to parol/oral, evidence of the appellant’s indebtedness to the respondent on the sum claimed. Interestingly, being documentary, it is permanent, incorruptible, inelastic, indelible and invincible. Indubitably, it is more reliable and dependable that the oral testimony which oozes out from the vocal cord of man that is submissive to distortions. The impregnable documentary evidence constitutes another serious dent in the appellant’s already fragile stance. The Lower Court did not offend the law when it made it the touchstone of its decision. It is wholly divorced from injudicious act which is susceptible to interference by an appellate Court.

To top it all, in Exhibit H1 of 18th September, 2007, an acceptance offer letter from the respondent to the appellant, the facility was a fixed loan to expire on

31st August, 2008. At the time of the institution of the appellant’s suit, which parented the appeal, the loan contract had since expired by effluxion of time without repayment. In the sight of the law, the appellant was in breach of the contract of renewal facility, see A.I.B. Ltd. V. I.D.S Ltd. (2012) 127 NWLR (Pt. 1328) 1. This is another serious blight against the appellant’s wobbling stance.

The Lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, oral and documentary, proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties. It found that the respondent’s pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR

(Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The Lower Court found rightly in my view, that the evidence of the respondent, based on their qualitative nature, preponderated over those of the appellant’s. The net effect is that the respondent proved its counter-claim. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019. 16 NWLR (Pt. 1699) 399.
Having regard to this brief legal anatomy, the Lower Court’s solemn finding, on the respondent’s counter-claim, is unassailable. It is not a transgression of the law. I therefore dishonour the appellant’s salivating invitation to sacrifice the Lower Court’s finding thereon on the underserved altar of perversity for want of legal justification. I will not hesitate to resolve the conjoined issues three and four against the appellant and in favour of the respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the whole, having resolved the four issues against the appellant, the destiny of the appeal is obvious. It is highly unmeritorious and deserves the penalty of dismissal. Consequently, I dismiss the appeal. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.

JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance a draft copy of the judgment just delivered by my learned brother FESTUS OBANDE OGBVINYA JCA and I adopt the judgment as mine with nothing further to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in draft, the leading judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA in which he dismissed the instant appeal as unmeritorious.

I agree with the decision reached and I too dismiss the appeal. I abide with the consequential orders made that both parties shall bear their respective costs.

Appearances:

No representation for the appellant For Appellant(s)

Nwachukwu, Esq. with him, T. Oyeyemi, Esq. For Respondent(s)