KAYODE OLATUNJI ESQ. v. UNITY BANK PLC (2016)

KAYODE OLATUNJI ESQ. v. UNITY BANK PLC

(2016)LCN/8306(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of March, 2016

CA/K/277/2011

RATIO

APPEAL: WHEN IS AN APPEAL OF RIGHT AND THE IMPLICATION OF THE FAILURE TO SEEK AND OBTAIN LEAVE WHERE SUCH IS REQUIRED

By the combined effect of the provisions of Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) an appeal is of right where the decision appealed against is a final decision in any civil or criminal matter, and where the grounds of appeal relate to questions of law only, and no leave is required, but in other cases i.e. where the decision is not final or the appeal is not grounds of law only, the appeal is not of right but Appellant will be required to seek the leave of Court. Failure to seek and obtain leave where such is required is an infraction of the jurisdiction of the Court and the appeal or the grounds affected will be struck out. See FAITH ENTERPRISES LTD V. BASF NTGERTA LTD. (2010) 1 MJSC (Pt. II) 119. per. ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL: GROUNDS OF APPEAL; GENERAL PROPOSITIONS TO GUIDE THE COURT IN THE EXERCISE OF DETERMINING WHETHER A GROUND OF APPEAL IS ONE OF LAW, FACT OR MIXED LAW AND FACT

The Supreme Court had in the case of NWADIKE V. IBEKWE (1987) 4 NWLR (Pt. 67) 718 laid down the general propositions to guide the Court in the exercise of determining whether a ground of appeal is one of law, fact or mixed law and fact. These criteria were stated by the same apex Court in YARO v. AREWA CONSTRUCTTON LTD. (2008) ALL FWLR (Pt. 400) 603 at 525 – 626 to be the following;
“a. It is an error in law if the adjudicating Tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or; if although applying the correct S criteria, it gave wrong weight to one or more of the relevant factors;
b. Several issues that can be raised on legal interpretation of deeds, documents, terms of act, words or phrases and inference drawn there from are grounds of law.
c. Where a ground deals merely with a matter of inference even if it be an inference of facts, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts, For many years it has been recognized that inferences to be drawn from a set of proved or undisputed facts as distinct from primary facts are matters upon which an appellate Court is as competent as the Court of trial;
d. Where the Tribunal states the law on a point wrongly it commits an error of law,
e. Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law on the premises that in a jury trial there would have been no evidence to go to the jury.”
It has been held that a complaint about wrongful admission of evidence is a ground of law, also that a complaint about the question of misplacement of the burden of proof in a civil case is a ground of law, see ORLU V. GOGO-ABITE (2010) VOL. (Pt. 11) MJSC 186. per. ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL: GROUNDS OF APPEAL; THE PURPOSE OF THE RULES OF THE APPELLATE PROCEDURE REQUIRING THAT GROUNDS OF APPEAL SHOULD NOT BE VAGUE

As held by the Supreme Court in ADEROUNMU V. OLOWU (2000) 4 NWLR (Pt. 652) 25, the purpose of the rules of the appellate procedure requiring that grounds of appeal should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient information to the other side as to the precise nature of the complaints of the issues that are likely to arise in the appeal and any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it does not conform. The Court must look at the substance and not the form. per. ISAIAH OLUFEMI AKEJU, J.C.A.

EVIDENCE: BURDEN OF PROOF;THE BURDEN OF PROOF IN CIVIL CASES

The burden of proof in civil cases is provided for in Sections 131,132, 133 and 134 of the Evidence Act, 2011 which are as follows:-
“131 (1), Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2), When a person is bound to prove existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133(1). In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2). If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably satisfy the Court that the fact sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with.
Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”
It is thus the law that he who asserts must prove that which he has asserted. See ELIAS V. OMO – BARE (1982) 5 SC 2; WOLUCHEM V. GUDI (1981) 5 SC 291; ADEDEJU V. OLOBO (2007) 1-2 SC 76. The law is that the burden is on the party to prove the facts he relies upon to succeed in the case. See OKECHUKWU & SONS V. NDAH (1967) NWLR 368; ABIODUN V. ADELUN (1962) 1 ALL NLR 550; GEORGE v. UBA (1972) 8 – 9 SC 164.
By the provisions of the Evidence Act cited above, the burden of proving a particular fact is on the party whether plaintiff or defendant who would otherwise fail if no evidence at all were adduced on either side, or that party who wishes the Court to believe in the existence of that fact. See VEEPEE INDUSTRIES LTD V. COCOA INDUSTRIES LTD (2008) ALL FWLR (Pt. 425) 1667; AFOLABI V. WESTERN STEEL WORKS LTD (2012) VOL 6 – 7 (Pt. 1) MJSC 118. It is also settled in law that in civil cases the burden of proof is discharged on the preponderance of evidence or balance of probabilities.
See OJOMO V. EJEH (1987) 4 NWLR (Pt. 64) 216; ODULAJA V. HADDAD (1973) 11 SC 357. per. ISAIAH OLUFEMI AKEJU, J.C.A.

COURT: JURISDICTION; WHETHER THE COURT CAN MAKE CONTRACT FOR THE PARTIES

It is the law that the Court has only the jurisdiction to interpret and enforce agreements the parties to an action have entered into, and cannot make a contract for the parties. See IBAMA V. SPDC (2005) 17 NWLR (pt. 954) 364; HIMMA MERCHANTS LTD V. ALHAJI INUWA ALIYU (1994) 6 SCNJ (Pt. 1) 87. It is generally not the practice of Court to award interest on ordinary debt where there is no agreement express or implied between the parties or evidence of mercantile usage or custom of the parties or their judiciary relationship or as maybe contained in statute. See R.N.A, EKWUNIFE V. WAYNE (WEST AFRTCA LTD (1989) 5 NWLR (Pt. 122)) 422. In other words a party seeking payment of interest must show by concrete evidence his entitlement thereto, unless there is agreement to that effect or admission by the other party. See VEEPEE INDUSTRIES LTD, V. COCOA INDUSTRIES LTD (2008) ALL FWLR (Pt. 425) 1667. per. ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

KAYODE OLATUNJI ESQ.
Carrying on business in the name and style of Kayode Olatunji & Co. Legal Practitioners Appellant(s)

AND

UNITY BANK PLC.
Formally Known as Bank of the North Ltd. Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment):This appeal is against the decision of the High Court of Kano State contained in the judgment delivered on 15th August, 2011 (and captured at pages 283-294 of the record of appeal) in respect of suit No. K/529/2010 which the Appellant as the plaintiff had initially commenced through the motion exparte filed on 1/11/2010 for leave to place for hearing under the undefended list, but by the order of the trial Court the suit was transferred for trial under the general cause list and pleadings were ordered and filed by paragraph 21 of the statement of claim dated 27/1/2011 and filed same date the appellant had claimed as follows:-
?21. WHEREOF THE PLAINTIFF CLAIMS AGAINST THE DEFENDANT AS FOLLOWS:
(a) The sum of N4,016,553.00 (Four Million Sixteen Thousand Five Hundred And Fifty Three Naira Only) being plaintiff’s 10% recovery fees on the debt of N40,165,526.56 paid and settled by defendant’s customer Alhaji Salisu Adamu Fagge and Alhaji Salisu Adamu Fagge & Sons Ltd.
(b) The plaintiff also claims 10% Court’s interest on this amount from the date of

judgment till liquidation.
(c) The plaintiff claims N10 million general damages against the defendant for trading with plaintiff’s funds and for its willful, nonpayment and withholding of plaintiff’s fees.
(d) Payment of 12.5% compensating interest on the plaintiff’s unpaid fees from December 2009 to date of judgment having been trading with plaintiff’s funds as a commercial Bank on credit facilities to its customers
(e) Costs of the action.

The defendant filed a statement of defence of 21 paragraphs wherein the defendant denied every material allegation of fact contained in the statement of claim. At the hearing of the suit, the plaintiff himself testified in support of the claim as the sole witness while the defendant called two witnesses. Both parties tendered documents that were admitted as exhibits. At the end of the oral and documentary evidence, the two learned Counsel filed and exchanged their written addresses, and in the aforesaid judgment of the trial Court the learned judge held that, the plaintiff failed to establish his case on the preponderance of evidence whereby the entire suit was dismissed.
?
The plaintiff at the trial

Court (who is now called the appellant) was dissatisfied with the decision of that Court and commenced the instant appeal through the Notice of Appeal dated 6th September, 2011 with 13 grounds of appeal. The Appellant subsequently and with the leave of this Court filed the Amended Notice of Appeal which also contains 13 grounds of appeal. In compliance with the relevant Rules of this Court regarding the filing of Briefs of Argument, the parties filed and exchanged their Brief of Argument. The Appellant’s Brief settled by the Appellant himself, Kayode Olatunji Esq, of Counsel was filed on 25/5/15 but deemed filed on 15/9/15, while the Respondent’s Amended brief of Argument filed on 19/6/15 was prepared by Ibrahim M. Boyi Esq. as learned Counsel for the Respondent. The Appellant filed a Reply Brief on 10/12/14 but same was deemed filed on 19/1/16. All the Briefs were adopted and relied upon by the learned Counsel at the hearing of the appeal.
?
From the pleadings of the parties and the witness statements on Oath filed at the trial Court, the case of the appellant as plaintiff is that he knew the Respondent formerly known as Bank of the North Ltd. The

plaintiff a legal practitioner and the principal partner in the law firm of Kayode Olatunji & Co. carrying on legal practice at No. 37 Murtala Mohammed Way Kano stated that the law firm had one Felix Jones Osimerha Esq., a legal practitioner as a Counsel in that law firm at all times material to the action from 2005 to December, 2010 conducting cases for the law firm to the knowledge of the Respondent.

The (plaintiff) Appellant stated that by the letter dated 10th July, 2006 by the (defendants) Respondent’s Company Secretary/Legal Adviser the Appellant was informed of the new status of the Respondent as Unity Bank Plc, a banking concern carrying on banking business in Kano and throughout Nigeria but formerly known as Bank of the North Ltd. The appellant stated that the Respondent entered into a contract with his law firm on 12/12/2001 for the recovery of indebtedness of one of the bank’s customers, Alhaji Adamu Salisu Fagge & Sons Ltd. at Kano main branch, upon payment of 10% recovery fee, and the law firm wrote demand letter to the customer and thereafter filed recovery action in suit No. K157/2001 at the High Court of Kano State wherein

judgment was obtained on 30/9/2003 for N29,277,709.49 plus 32% interest and 10% thereafter until full liquidation of the debt. The customer eventually paid a negotiated sum of N40,165,526.56 and abandoned the appeal filed against the judgment of Kano State High Court.

The Appellant stated also that he was never debriefed nor was his contract terminated; but the Respondent refused to pay the 10% recovery fee on the sum paid by the customer as he requested in the bill of charges dated 11/1/10, but as a commercial bank it has been trading with the Appellant’s unpaid fee by lending it to customers on interest of 12.5% from December 2009, and deprived the Appellant’s firm the money whereby the Appellant suffered loss and damages. The Respondent only paid an amount of N200,000.00 for the representation of the Respondent in Appeal No. CA/K/369/2004 at Court of Appeal, Kaduna.

The Respondent admitted having dealing with the law firm of Kayode Olatunji & Co. up to the period it debriefed the firm for the reason of non-performance of the firm’s obligation to the Respondent when the Appellant relocated to United Kingdom and the case of the Respondent was

suffering. It was stated that as a result of non-performance by the Appellant and his relocation, the Respondent debriefed him and instructed Felix Jones Osimerha to take over the recovery cases given to the Appellant including the account of Alhaji Salisu Adamu Fagge & Sons Limited as the Respondent was not aware of the indoor arrangement in the law firm of the Appellant, Kayode Olatunji & Co, The Respondent admitted that due to non performance of the account of Alhaji Adamu Salisu Fagge & Sons Ltd, instruction was given to the Appellant in 2001 to recover the debt. Upon the remuneration of 10% of total amount actually recovered. Demand Notice was served and judgment was entered in favour of the Respondent in the sum of N29,277,709.49 but the judgment became a subject of an appeal, which appeal the Appellant abandoned and frustrated and the Respondent had to brief F.J. Osimerha & Co. to complete the appeal and the process of recovery.
?
The Respondent further stated that the Appellant only recovered the sum of N1 million and N300,000.00 but did not take any active part in the recovery of the debt as he left Nigeria shores as a result of

which the Respondent de-briefed the Appellant and engaged F.J. Osimerha & Co. to recover the debt and who actually did all the recovery and paid the money into the Respondent’s account. The Respondent stated that by its letter of 14/7/2010, the sum of N5,161,726.88 was approved for payment to the Appellant making a total of N49,137,898.83. on the understanding that the additional payments were for the purpose of settling all issues of outstanding payment.

The Appellant has from his grounds of appeal set down four issues for determination thus;
1. Whether the learned trial judge was not in error in holding that the plaintiff’s contract dated 12th December, 2011 had been terminated and that one Felix Jones Osimerha a Counsel in plaintiff’s firm’s employment was subsequently briefed by Exhibit P1 dated 11th November, 2008 to take over the plaintiff’s contract as alleged by Respondent contrary to the evidence and admissions made by defendant against interest to the contrary not considered by the lower Court.
2. Whether the learned trial judge was not in error in his application of the concept of accord and satisfaction in this case which is

totally inapplicable and in the absence of any agreement by parties and in spite of the doctrine which was not considered by the lower Court.
3. Whether or not the judgment of the lower Court was not perverse when the learned trial judge failed to consider and evaluate evidence/admissions made by the two defence witnesses under cross-examination supporting the plaintiff’s claim and whether the plaintiff had a fair trial.
4. Whether or not from the issues joined on the pleadings evidence led and admissions made by defendant supporting the plaintiff’s case the plaintiff has not proved his case on the balance of probabilities to be entitled to judgment on his claim for his recovery fees in this case and other reliefs sought.

At the hearing of the appeal the learned Counsel for the Respondent, J.B. Amos Esq. informed the Court that the Respondent had raised a preliminary objection which was argued on pages 5-10 of the Respondent’s Amended Brief filed on 19/6/2015, and urged Court to uphold the preliminary objection. Learned Counsel for Appellant, Kayode Olatunji Esq. referred Court to his Reply Brief filed on 10/12/2014 but deemed filed on 19/6/2016

wherein he had addressed the preliminary objection.

Following the leave granted to the Appellant to amend the Notice of Appeal and the subsequent filing of the Amended Notice of Appeal, the Respondent by way of motion on Notice filed 21/10/2014 prayed this Court to strike out grounds 2, 3, 4, 5,8, 9 and 10 in the Amended Notice of Appeal filed on 7/2/2014 for being incompetent, and another prayer that issues 1, 3 and 4 raised by the Appellant be struck out having been generated from incompetent grounds of appeal.

The argument of the Respondent’s Counsel is that the grounds of appeal are not in compliance with Order 6 Rule 2(3) and Rule 3 of the Court of Appeal Rules, 2011.
The learned Counsel submitted that ground 2 does not attack the ratio decidendi of the judgment and the ground is invalid, having failed to state any reason why the decision of the trial Court was wrong; OGUNLANA V, DADAS (2009) ALL FWLR (Pt. 473) 1464, ALOWONLE V, SOLEBO (2014) ALL FWLR (Pt. 719) 1177. He submitted that a ground of appeal that arises from questions outside the decision of the trial Court is incompetent; ADEWUMI V. ADEBEST TELECOMS (NIG.) LTD, (2013) ALL FWLR

(Pt. 703) 1954; METAL CONSTRUCTION (WA) LTD v. MIGLIORE (1990) 1 NWLR (Pt. 126) 299; ILOABACHI v. ILOABACHI (2000) 5 NWLR (Pt. 656) 178; OGUNDIPE v. ADENUGA (2006) ALL FWLR (Pt. 336) 266; IKAN V. NAZIANY (2006) FWLR (Pt. 99) 1088.

On ground 3 the Respondents’ Counsel submitted that the ground which complains of misdirection failed to specify whether it is of law or facts which is mandatory; ALHAJI ABUBAKAR MUSA & SONS LTD V. G.M. OCHEMBA & BROTHERS LTD (2004) ALL FWLR (Pt. 219) 1076. He contended that the ground does not attack the ratio decidendi, it attack findings of fact and therefore requires leave by virtue of Section 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Also it was argued that grounds 4, 5 and 8 are of mixed law and facts which require leave under Section 242 (1) of the same Constitution; UGBOAJA V. SOWEMIMO (2008) 35 NSCQR 382; BABAYO V. WALAMA (2006) ALL FWLR (Pt. 293) 309; DAILY TIMES OF NIGERIA PLC V. D.S.V. LTD (2014) ALL FWLR (Pt. 713) 1978i IKEM V. NEZIANYA (2002) FWLR (Pt. 99) 1088; MUDUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (Pt. 318) 695; AKWAFUO V. ANYAWU (2006) ALL FWLR (Pt. 302)

89; OGBECHIE V. ONOCHIE.

In the Appellant’s Reply Brief, the learned Counsel for Appellant argued that ground number 2 in the Notice of Appeal is valid, it is clear and unambiguous as to the complaint of the Appellant that once issues are not joined in the pleadings, they are admitted and require no further proof, Grounds 3, 4, 5 and 8 are valid and even if they raise questions of fact, no leave to appeal is required by virtue of the Constitution of the Federal Republic of Nigeria, 1999, the appeal being against a final decision of the High Court sitting in its original jurisdiction.

According to the learned Counsel, grounds 9 and 10 of the appeal are not vague, narrative and unintelligible, the complaint in those grounds clearly relate to the decision of the trial Court, the whole objection as further argued by learned Counsel has been misconceived as none of the grounds of appeal offends against the provisions of Order 6 Rules 2 and 3 of the Court of Appeal Rules, 2011. It was submitted that once a ground of appeal contains the reasons for questioning the judgment as well as the reasons for the appellate Court should hold that the judgment is

wrong, the appellate Court cannot discountenance the ground of appeal, not withstanding slight infections; MINISTER OF PETROLUM V. EXPO SHIPPING LINE NIG. LTD (2010) ALL FWLR (Pt. 530) 1236.

Thus the Respondent’s objection to these grounds of appeal are on the basis of invalidility for failure to attack the decision appealed against or failure to obtain leave of Court where the grounds are of facts or mixed law and facts.

The Respondent had relied on Order 6 Rule 2 (3) and Order 6 Rule 3 of the Court of Appeal Rules, 2011 which respectively provide as follows:-
Order 6 Rule 2 (3):-
“The notice of appeal shall set forth concisely and under distinct heads the ground upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively”,
Order 6 Rule 3:-
?Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted save the general ground that the judgment is against the weight of the evidence and ground of appeal or any party thereof which is not permitted under this Rule may be struck out by the

Court of its own motion or on application of the Respondent.”

(Pt. 400) 603 at 525 – 626 to be the following;
“a. It is an error in law if the adjudicating Tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or; if although applying the correct S criteria, it gave wrong weight to one or more of the relevant factors;
b. Several issues that can be raised on legal interpretation of deeds, documents, terms of act, words or phrases and inference drawn there from are grounds of law.
c. Where a ground deals merely with a matter of inference even if it be an inference of facts, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts, For many years it has been recognized that inferences to be drawn from a set of proved or undisputed facts as distinct from primary facts are matters upon which an appellate Court is as competent as the Court of trial;
d. Where the Tribunal states the law on a point wrongly it commits an error of law,
e. Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law on the

premises that in a jury trial there would have been no evidence to go to the jury.”
It has been held that a complaint about wrongful admission of evidence is a ground of law, also that a complaint about the question of misplacement of the burden of proof in a civil case is a ground of law, see ORLU V. GOGO-ABITE (2010) VOL. (Pt. 11) MJSC 186.

Bearing in mind the above criteria or guiding principles I have had a calm study of the Appellants’ grounds of appeal and I am satisfied that they substantially raise issues of law and the judgment appealed against is a final judgment by the High Court of Kano State for which no leave is required.

The Court must look at the substance and not the form.

I am of the view that all the grounds of appeal in the Appellant’s Amended Notice of Appeal filed on 7/2/14 but deemed filed on 19/1/16 are valid grounds of appeal and I so hold. It follows therefore that the issues formulated by the Appellant are also valid issues. The Respondent’s objection lacks merit and it is accordingly dismissed.

The Respondent has formulated the following issues for determination: –
1. Whether from the evidence placed before the learned trial judge, he was not right in holding that the firm of F.J. Osimerha & Co. who was briefed after the Appellant was de-briefed recovered the sums of N40,165,526.56 from the Respondents’ customers especially in the light of Exhibits D4, 5, 6, 7, 8 and 9 admitted without objection and evidence of DW2 in support of these exhibits.
2. Whether the lower trial judge’s decision to consider the concept of accord and satisfaction after the admission of the Appellant under cross examination that he accepted the sum of N49,137,898.83 offered as full and final payment of all his claims when they negotiated with the Respondent in

addition to corroboration by the evidence of DW11 and Exhibit D11 which was admitted without any objection occasioned any miscarriage of justice.
3. Whether there was any feature in the judgment of the lower Court that suggests the Appellant was not given fair hearing or the said judgment was perverse in any way.
4. Whether the learned trial judge was not right to have dismissed the entire claims of the Appellant upon his failure to discharge the burden of proof cast on him to prove that he recovered the debt of N40,165,526.56 and not F.J. Osimerha & Co. as found by the lower Court in the light of Exhibits Dl – 11 and the testimonies of the Respondent’s witnesses.

As correctly stated by the Respondent, the issues formulated by the parties are quite similar and the appeal will be considered and determined on the issues as formulated by the Appellant so as to ensure that nothing of substance is left unattended to.
?
Arguing issues 1 and 4 together, the Appellant contended that the learned trial judge considered only the issues formulated by the Respondent and ignored the issues framed by the Appellant which shows that the learned trial

judge leaned towards the side of the Respondent which is an error that occasioned a miscarriage of justice. It was contended that the learned trial judge wrongly held that the Appellant was not entitled to his recovery fee because the contract had been terminated and one Felix Jones Osimerha had been briefed to take over the written contract for recovery of the debt of Alh. Salisu Adamu Fagge & Ors Ltd. upon payment of 10% recovery fee which contract the
Appellant performed without being terminated and the customer repaid the whole judgment debt.

It was argued that the Respondent admitted in pleadings that the Appellant was given contract in 2001 upon remuneration of 10% as recovery fee, but stated that the contract was terminated in 2007 which allegation was not substantiated by the Respondent through evidence. It remains merely in the pleadings; CAMERON AIRLINES V. MR. MIKE OTUTUIZU (2011) 2 SCNJ 96. The learned Counsel argued that there was no evidence also in support of the assertion that he was debriefed and the contract was given to F.J. Osimerha as Exhibit P1 dated 11th November, 2008 does not support that assertion while the learned judge

did not consider the admissions made by the Respondent that the debt of Alh. Fagge was not listed for recovery by F.J. Osimerha making it unnecessary to further proof the same allegation by the Appellant by virtue of Section 76 of Evidence Act; ADEOSUN V. GOVERNOR OF EKITI STATE & ORS (2010) 4 NWLR (Pt. 1291) 581; FRIDAY KAMALU v. DANIEL NWANKUDU (1997) 5 SCNJ 191.

The learned Counsel argued that the trial Court made findings that are not supported by evidence and therefore perverse, especially that he was debriefed and the contract was awarded to F.J. Osimerha. It was contended that having admitted that it had a contract with the Appellant dated 12/12/2001 which the Appellant performed, the burden of establishing the defence that same contract for recovery of indebtedness by Alhaji Salisu Adamu Fagge & Sons was terminated in 2007 rests on the Respondent. It was submitted that evidence that is not contradicted by the adversary remains credible and ought to be accepted by the Court as reliable, and true and Court should act on it; EGBUNA V. EGBUNA (1989) 2 NWLR (Pt. 106) 773; OKEKE V. ATT. GEN. ANAMBRA STATE (1997) 9 NWLR (Pt. 519) 123. It was

submitted that the implication of Respondent not leading evidence that the Appellant was debriefed is that the pleadings in that regard had been abandoned; JOLAYEMI V. ALAOYE (2005) NFWLR (Pt. 257) 899. The trial Court therefore misplaced the burden of proof and the judgment should be set aside; IHEANACHO V. CHIGERE (2004) ALL FWLR (Pt. 226) 2094; EJEMRUVWO OYOVBAIRE & ORS V. OMAMURHOMU (1999) 7 SCNJ 60.

The Appellant submitted that since the learned trial judge failed to carry out the duty of evaluating the evidence in the case, it becomes the duty of the appellate Court to do so; SHAN V. KWAN (2000) 8 NWLR (Pt. 670) 685; AKINOLA V. OLUWO (1962) 1 SCNLR 352; AYUYA v. ONRIN (2011) ALL FWLR (Pt. 583) t,842i SAGAY V. SAJERE (2000) 4 SCNJ 383.

On the letters tendered by the Respondent as Exhibits D4, D5, D6, D7, D8 and D9, the learned Counsel argued that they are completely irrelevant but dumped on the Court without being linked to the pleadings while the purported or alleged maker was not called as a witness. He submitted that a Court of law cannot attach probative value to a document whose maker did not testify at the trial to be subjected to

cross examination; OKONKWO V. STATE (1998) 8 NWLR (Pt. 561) 258. He submitted also that where parties enter into contracts, they are bound by the terms; DATA PROCESSING MAINTENANCE AND SERVICES LTD. v. LARMIE (2000) 5 NWLR (Pt. 655) 138.

On the claim for interest, the learned Counsel contended that his testimony was not challenged by the Respondent who also failed to testify on its pleadings and must be deemed to have abandoned its own pleadings. He submitted that the Respondent had held on to Appellant’s funds; STABILINI VISION LTD V. METALUM LTD. (2008) ALL FWLR (Pt. 409) 503; AUGUSTINE IBAMA V. SHELL PETROLEUM DEV. CO. OF NIG, LTD. (1998) 3 NWLR (Pt. 542) 493; ABUBAKAR MUSA & SONS LTD. V. G.M. OCHEMBO & BROTHERS (2004) ALL FWLR (Pt. 219) 1076.

The Appellant contended that his claim had been proved on the balance of probabilities and was entitled to judgment on all aspects of his claim.

Under his issue number 2, the learned Counsel contended that the Respondent who raised the issue of settlement of the Appellant’s claim and who had the burden of proving same failed to do so because Exhibit D11 relied upon by the Respondent relates to a

separate contract concerning Appeal No. CA/K/369/2004 and the Respondent did not show that the Appellant accepted the offer in Exhibit D11. It was submitted that for there to be accord and satisfaction, the parties must be ad idem and there must be a definite offer and unqualified acceptance which is not in place in this case; NGILARI V. NICON (1998) 6 SCNJ 216; NIGERIAN EDUCATIONAL RESEARCH & DEVELOPMENT COUNCIL V. GONZE NIG. LTD (2000) FWLR (Pt. 2L) 842; NEKA BBB MANUFACTURTNG CO. LTD V. ACB LTD (2004) ALL FWLR (Pt. 198) 1175. There must be a concluded bargain which has settled all the essential terms and conditions; ORIENT BANK NIG. PLC V. BILANTED INTERNATIONAL LTD. (1997) 8 NWLR (Pt. 515) 37.

The learned Counsel argued that the trial Court was in grave error to have misapplied the doctrine of accord and satisfaction to this case without the necessary facts to justify such application.
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In response the learned Counsel for the Respondent said the Appellant should show concrete evidence in support of his allegation that the trial judge leaned heavily in support of the Respondent; WOMILOJU V. ANIBIRE (2010) 7 SCM 217; AMASIKE V. C.A.C. (2010) SCM

1. On the complaint of lack of fair hearing in the proceedings before the trial Court, the learned Counsel submitted that fair hearing is whether the party complaining was given the opportunity of being heard; UNION BANK V. ASTRA BUILDERS (2010) 7 SCM 187. It was submitted also that the findings of the trial Court were borne out by the record and evidence and they were not perverse, so this Court has no cause to interfere with the findings; YARO V. AREWA CONSTRUCTTON LTD. (2007) 30 NSCQR (Pt. 11) 1191; LAGGA V. SARHUNA (2008) 36 NSCQR 82; CPC V. INEC & ORS. (2011) 12 SCM (Pt. 11) 149.

The learned Counsel submitted that the Appellant has not shown consistency in his claim but has set up a different claim on appeal from the case at the trial Court and failed to prove concrete and cogent evidence that he recovered the debts AGBOOLA V. UBA (2011) 4 SCM 31; IMANA V. ROBINSON (1979) 3 – 4 SCM 1; ARE V. ADISA (1967) 1 ALL NLR 48; ELIAS v. DISU (1962) 1 ALL NLR 214. It was submitted that the correct position of the law is that the plaintiff must rely on the strength of his own case and not on the weakness of the defence; FIRST BANK OF NIGERIA PLC V. NDOMA-EGBA

(2006) ALL FWLR (Pt. 307) 1012; MECL LTD v. AGILITY & BROTHERS ENTERPRISES NIG, LTD. (2006) ALL FWLR (Pt. 298) 1289. It was further contended that the findings of the trial Court show that the documentary evidence before the Court was correctly applied to the effect that F.J. Osimerha & Co. recovered the debt. It was submitted that documentary evidence excludes oral evidence and oral testimony cannot displace documentary evidence; FORTUNE INTERNATIONAL BANK PLC, V. PEGASUS TRADING OFFICE (2004) 4 NWLR (Pt. 863) 369; OBIEKWE V. OBI (2006) ALL FWLR (pt. 315) 151; MADUBU V. GRAY (2006) ALL FWLR (Pt. 300) 1671.

The Respondent’s counsel submitted that documents tendered as Exhibit D2 – D10 have shown how Osimerha & Co. and not the Appellant did the recovery, and the Appellant could not lead evidence that contradict documentary evidence, the findings of the trial Court were therefore not perverse; BALARABE V. NADABO (2012) ALL FWLR (Pt. 646) 516, It was submitted that the Appellant only pleaded his entitlement to interest at the rate of the money allegedly withheld by the Respondent without leading evidence thereon, and such pleadings must be deemed

to have been abandoned; JOLAYEMI V. OLAOYE (2005) FWLR (Pt. 251) 899; CBN V. BECHILI CONSTRUCTION LTD. (2012) ALL FWLR (Pt. 620) 1266; AGBI V. OGBEH (2006) ALL FWLR (Pt, 329) 941. The Appellant has the duty to plead, particularize and prove interest rates chargeable; INTERNATIONAL BANK LTD. V. OBRIFINA LTD, (2012) ALL FWLR (Pt. 639) 1192. It was submitted the no evidence was placed before the trial Court in respect of the claim for N10 million damages for alleged trading by the Respondent with Appellant’s funds and the address of Counsel cannot take the place of evidence; ONAH V. OKOM (2012) ALL FWLR (Pt. 647) 703; ALIYU V. DIKKO (2012) ALL FWLR (Pt. 632) 1714; AFRIBANK PLC. V. ISHOLA INVESTMENT LTD. (2003) FWLR (Pt. 141) 1841.

The learned Counsel submitted that the decision of the trial Court has been correctly arrived at and it does not matter how he arrived at the correct decision; MASTER HOLDINGS NIGERIA LTD. V. OKEFIENA (2012) ALL FWLR (Pt. 648) 821.

On the issue regarding accord and satisfaction, the Respondent’s Counsel contended that the learned trial judge correctly found that the sum of N49,137,898.83 was paid to the Appellant as confirmed

by the evidence of the DW2, Exhibit D11 as well as the evidence of the Appellant himself under cross examination. It was contended that the findings of the learned trial judge that the amount paid to the Appellant was in satisfaction of all the money due to him which he accepted was based on evidence and should not be interfered with.

In the Appellant’s Reply Brief, the Appellant submitted that from the facts alleged by the Respondent that the recovery contract awarded to him was terminated and given to F.J. Osimerha who did the recovery, it was the Respondent that had the duty to call this Osimerha as a witness or to join him as a party to the case, moreso that the Respondents’ witnesses conceded under cross examination that the said Counsel was never briefed for the recovery contract; OSHO V. FOREIGN FINANCE CORPORATTON (1991) 4 NWLR (Pt. 184) 157.

The learned Counsel contended that his evidence in support of his claim for interest was not contradicted or challenged at the trial; and submitted that where evidence is unchallenged or uncontradicted, the onus of proof is discharged on a minimal evidence; YAKUBU V. MINISTRY OF WORKS AND TRANSPORT

ADAMAWA STATE (2005) ALL FWLR (Pt. 267) 1410.

The Appellant argued that the ingredients of accord and satisfaction were not established by the Respondent that raised the issue.

From the pleadings of the parties and their oral and documentary evidence at the trial Court as well as the submissions of the two learned Counsel in this appeal, the claim of the Appellant, as the plaintiff is the amount of N4,016,553.00 being 10% recovery fees on the sum of N40,165,506.56 paid by Alhaji Salisu Adamu Fagge and Alhaji Salisu Adamu Fagge & Sons Ltd; 10% Court interest on the said amount, N10 million general damages for failure to pay the recovery fee and trading therewith; 12% compensatory interest on the money from December 2008 up till the judgment; Cost of the action.

The Appellant, a legal practitioner and principal partner at Kayode Olatunji & Co. had in his statement of claim stated that the Respondent on 12th December, 2001 gave him a contract to recover the amount of N40,165,506.56 owed by its customer, Alhaji Salisu Adamu Fagge & Sons Ltd. This is contained in paragraphs 8 and 9 of the Appellant’s statement of claim thus;
“8 The

Defendant is a banking institution carrying on banking business in Kano and all over Nigeria and used to be known as Bank of the North Ltd before changing its name to Unify Bank Plc.
9. That following Defendant’s inability to recover the indebtedness of its Kano main branch customer Alhaji Adamu Salisu Fagge & Sons Ltd the Defendant entered into a contract with plaintiff’s firm on 12th December, 2001 to recover the indebtedness of the said customer based on payment of 10% recovery fee.”

In respect of this award of recovery contract, the Respondent stated in paragraphs 6 and 7 of the statement of defence that;
“6 The Defendant admits the contents of paragraph 8 of the statement of claim and adds that Bank of the North Ltd was fused alongside other banks into the present Unity Bank Plc, the Defendant.
7. In reply to paragraph 7 (sic) of the statement of claim the Defendant’s customer’s account in the name of Alhaji Adamu Salisu Fagge & Sons Ltd was non-performance (sic) thus as policy of the Defendant, it was given to the external solicitor in this instance the plaintiff to recover the debt. The Defendant avers that it specifically

instructed the plaintiff to recover the debt in 2001 with a remuneration of 10% of all amounts actually recovered.”

The matter of award of recovery contract to the Appellant by the Respondent and the remuneration attached thereto, which is 10% of the amount recovered having been asserted by the Appellant and admitted by the Respondent has become proved on pleadings and does not require further proof. The law is that admitted facts do not need to be proved further. This is settled by the provision of Section 123 of Evidence Act, 2011 that no fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. See UNITED BANK FOR AFRICA PLC. V. JARGABA (2007) ALL FWLR (Pt. 380) 1419; AKANINWO V. NSIRIM (2008) ALL FWLR (Pt. 410) 510; MOZIE V. MBAMALU (2006) ALL FWLR (Pt. 341) 1200.
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In spite of the provision of the Evidence Act, 2011 and the applicable principle of law stated above, the Appellant who was the

sole witness in support of the claim adopted his written statement on oath at the trial and he tendered documents that were admitted as Exhibits A, B, C, D and E in respect of the transaction, and when he was cross examined, he said inter alia at page 19 of the record of appeal that;
“In exhibit C page 11 is a letter of instructions dated 12/12/2001 to the plaintiff for the recovery of the indebtedness of the defendant’s customers in the Kano main branch by name Alhaji Adamu Salisu Fagge & Sons Ltd, The contract of legal seruices between the defendant and Kayode Olatunji & Co, was the recovery indebtedness (sic) of Adamu Salisu Fagge & Sons Ltd ? I accepted the contract based on the payment to me of 10% recovery fee which is the policy of the company.”
The Respondent did not deny the award of the recovery contract in the oral and documentary evidence of its two defence witnesses. The DW2 however said at page 23 of the record that;
“We did not pay the plaintiff the recovery fee being claimed in this suit in item 9 in Exhibit D11 because he was not due for payment of recovery fees”

Thus I find it fully established that

there was a recovery contract between the parties on the fee of 10% of the sum recovered by the Appellant.

The matters in contention are whether the Appellant executed the contract, but was not paid the 10% fee now claimed in this action or whether he failed to execute the contract but was settled on quantum meruit or accord and satisfaction. The Appellant claimed that his firm carried out the contract by issuing demand notice to the debtor and followed it up by filing an action at the High Court of Kano State and obtained judgment in favour of the Respondent. The Appellant said in paragraphs 10, 11 and 18 of the statement of claim that;
“10. The plaintiff commenced work on the contract with the defendant by serving demand letter dated 18th December, 2001 on the customer and thereafter instituted recovery action in suit K/5712001 at the High Court Kano, The customer contested the case but the plaintiff obtained judgment on the 30th September, 2003 in the sum of N29,277,700.49 plus 32% interest from 30/8/2002 to date of judgment and 10% Court interest until liquidation with costs. The plaintiff pleads the certificate of judgment.
11. The customer

appealed against the judgment to Court of Appeal Kaduna but failed to comply with the conditional stay of execution of the judgment and a writ of fife was signed and executed against the customer.
18. The customer eventually paid the sum of N40,165,526.56 (Forty Million One Hundred and Sixty Five Thousand, Five Hundred and Twenty Six Naira Fifty Six Kobo), The plaintiff pleads customers statement of account (legacy recovery account No, 0000201/001/4192/003/ copies of manager’s cheques dated 19/10/09 and 3/06/09 for N10 million Naira cash, deposit slips dated 8/12/09 for N5 million naira, N11 million Naira and N1,165,530.00 respectively, The defendant is hereby given notice to produce the original of these documents at the trial.”

Again by paragraphs 8 and 9 of the statement of defence, the Respondent admitted the facts stated in the above paragraphs 10 and 112 but only stated that the judgment obtained by the Appellant “became subject to an appeal which the plaintiff abandoned and further frustrated until same was completed by F.J. Osimerha & Co, who were later briefed to complete the contract of recovery and the Appeal.” However the Appellant

had asserted that he was never debriefed nor was his contract terminated and by paragraph 2 of his statement had stated that Felix Jones Osimerha Esq., mentioned by the Respondent was at all times material to this suit a legal practitioner and Counsel in the law firm of Kayode Olatunji & Co. and was carrying out the task of conducting cases in that capacity.

presumption that may arise on the pleadings.
(2). If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably satisfy the Court that the fact sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with.
Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”
It is thus the law that he who asserts must prove that which he has asserted. See ELIAS V. OMO – BARE (1982) 5 SC 2; WOLUCHEM V. GUDI (1981) 5 SC 291; ADEDEJU V. OLOBO (2007) 1-2 SC 76. The law is that the burden is on the party to prove the facts he relies upon to succeed in the case. See OKECHUKWU & SONS V. NDAH (1967) NWLR 368; ABIODUN V. ADELUN (1962) 1 ALL NLR 550; GEORGE v. UBA (1972) 8 – 9 SC 164.
By the provisions of the Evidence Act cited above, the burden of proving a particular fact is on the party whether plaintiff or defendant

who would otherwise fail if no evidence at all were adduced on either side, or that party who wishes the Court to believe in the existence of that fact. See VEEPEE INDUSTRIES LTD V. COCOA INDUSTRIES LTD (2008) ALL FWLR (Pt. 425) 1667; AFOLABI V. WESTERN STEEL WORKS LTD (2012) VOL 6 – 7 (Pt. 1) MJSC 118. It is also settled in law that in civil cases the burden of proof is discharged on the preponderance of evidence or balance of probabilities.
See OJOMO V. EJEH (1987) 4 NWLR (Pt. 64) 216; ODULAJA V. HADDAD (1973) 11 SC 357.

Undoubtedly in the instant case the Appellant led evidence and established the facts that the instructions of the Respondent with respect to the recovery contract were carried out by the Appellant. It became incumbent on the Respondent to establish the assertion that the Appellant was debriefed and one F.J. Osimerha carried out the recovery of the money from the Respondent’s customer. It is however admitted by the Respondent that this Osimerha was at all times in the Chambers or law firm of the Appellant. Under cross examination the two witnesses stated this fact.
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From the foregoing pleadings and evidence of the parties I am

of the view that the Appellant had, on the balance of probabilities established that his law firm of Kayode Olatunji & Co. was awarded the recovery contract by the Respondent and that the firm carried out the contract as a result of which he was entitled to the claim of 10% fees as agreed in the contract. In the light of the evidence that F.J. Osimerha was at all times in the chambers of Kayode Olatunji & Co.; it is clear that all actions he took were for and on behalf of Kayode Olatunji & Co. moreso, that it has not been established by the Respondent that F.J. Osimerha was paid separately for the recovery contact awarded to the Appellant’s law firm.

On the assertion that the Appellant was paid an amount of N49 million in full satisfaction of the amount owed on the cases handled by his law firm, the Respondent relied on Exhibit D11, but under cross examination, the DW2 said at page 23 of the record of appeal, that “We did not pay the plaintiff the recovery fee being claimed in this suit in item 9 in Exhibit D11 because he was not due for payment of recovery fees”, I had already found in this case that the law firm of Kayode Olatunji where F.J.

Osimerha was one of the legal practitioners was awarded the recovery contract and the recovery was done with the Respondent’s customer paying the debt of N40,165,530.00 to the Respondent.

From the forgoing evidence of the parties, it is clear that the finding and holding of the learned trial judge on page 293 of the record that “I therefore hold that based on the finding made, couple with the acceptance of the offer made to the plaintiff by the defendant, it is not open to him (plaintiff) to relitigate same” has no support in the evidence and therefore perverse. A finding of the trial Court that runs counter to the pleadings and evidence before the Court is perverse. See ADIMORA V. AJUFO (1988) 3 NWLR (Pt. 80) 1; AGBOMEJI V. BAKARE (1998) 9 NWLR (Pt. 564) 1. The appellate Court has the duty and indeed the right to set aside or overturn a finding that is perverse. See AGBAKABA V. INEC (2008) 18 NWLR (Pt. 119) 489; IDESOH v. ORDIA (1997) 3 NWLR (Pt. 49L) 17. The Appellant in the instant case is not relitigating the amount of N49,137,893.83 kobo already paid to him but the recovery fee of about N4 million that was admittedly not included in the payment of

N49.137,893.83.

With regard to the Appellant’s claim for 10% Court interest. N10 million general damages and 12.5% compensatory interest, there is no doubt that the Appellant did not establish his entitlement to these reliefs based on the contract he had with the Respondent. In other words there is no satisfactory evidence that these reliefs are provided for, or even contemplated by the contract between the parties. To grant these reliefs or any of them will amount to this Court making contract for the parties or redesigning their contract. It is the law that the Court has only the jurisdiction to interpret and enforce agreements the parties to an action have entered into, and cannot make a contract for the parties. See IBAMA V. SPDC (2005) 17 NWLR (pt. 954) 364; HIMMA MERCHANTS LTD V. ALHAJI INUWA ALIYU (1994) 6 SCNJ (Pt. 1) 87. It is generally not the practice of Court to award interest on ordinary debt where there is no agreement express or implied between the parties or evidence of mercantile usage or custom of the parties or their judiciary relationship or as maybe contained in statute. See R.N.A, EKWUNIFE V. WAYNE (WEST AFRTCA LTD (1989) 5 NWLR (Pt.

122)) 422. In other words a party seeking payment of interest must show by concrete evidence his entitlement thereto, unless there is agreement to that effect or admission by the other party. See VEEPEE INDUSTRIES LTD, V. COCOA INDUSTRIES LTD (2008) ALL FWLR (Pt. 425) 1667.

The Appellant had argued that there was a breach of his right to fair hearing by the learned trial judge who leaned heavily towards the side of the Respondent and chose only the issues formulated by the Respondent. It is now well recognized and even settled that by the right to fair hearing as entrenched in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a person is entitled to fair hearing in the determination of his rights and obligations before a Court or Tribunal, this principle of fair hearing is fundamental in trials or proceedings before the Court and it cannot be waived or denied to any party. See ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) ALL FWLR (Pt. 354) 243; ATANO V. A.G. BENDEL STATE (1999) 2 NWLR (pt. 75) 132.
?It is however the duty of the person alleging the breach of his right to fair hearing to establish that

allegation. See MAIKYO v. OROLO (2007) 7 NWLR (pt. 1034) 443.

From my foregoing consideration of the issues in this appeal therefore I have come to the conclusion that the appeal succeeds partially in that the Appellant’s claim for the amount of N4,016,553.00 as the 10% interest or recovery fee due to him from the Respondent succeeds and it is granted while the other reliefs sought by him have failed and they are dismissed.
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Each party is to bear the cost of this appeal.

UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Isaiah O. Akeju, JCA just delivered.

I agree entirely with the views expressed therein and the conclusions arrived at that the appeal is meritorious. It is also for the reasons therein stated which I adopt as mine that I too find merit in the appeal and it is hereby allowed. The judgment of the lower Court delivered on 15th August, 2011 in suit No. K/529/2010 is hereby set aside.

I endorse the order made therein including orders as to costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of

reading in draft the lead judgment just delivered by my learned brother, ISAIAH OLUFEMI AKEJU, J.C.A; I am in total agreement with the reasoning and conclusions arrival at therein. My Learned brother has dealt with the issues raised in the appeal extensively and exhaustively. I have nothing useful to contribute, other than to adopt the reasonings and conclusions of my lord as mine, and in consequence allow the appeal on the claim of 10% interest, and to dismiss the claim in respect of the other reliefs sought for lacking in merit. I endorse the order made on costs.

Appearances

Kayode Olatunji, Esq.For Appellant

AND

J.B. Amos Esq.For Respondent