KEMBU v. FCMB PLC (2022)

KEMBU v. FCMB PLC

(2022)LCN/16995(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, June 20, 2022

CA/YL/10/2021

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

ALHAJI BUBA KEMBU (Trading Under The Name And Style Of Dan Kembu Nigeria Enterprises) APPELANT(S)

And

FIRST CITY MONUMENT BANK PLC RESPONDENT(S)

RATIO

WHETHER OR NOT A COUNTER-CLAIM IS A DISTINCT AND INDEPENDENT SUIT

The position of the law as stated in plethora of cases is that a counter-claim is a distinct and independent suit even though it is anchored on the main suit. See OKORO & ANOR v. ELEKWANYA & ANOR (2018) LPELR- 5071(CA) PAGES 10-11, PARAGRAPHS A-C; EKHATOR V. EKHATOR & ORS (2014) LPELR 24490 (CA) PAGE 30, PARAGRAPH A; BIRMA & ORS V. DAMCIDA & ANOR (2016) LPELR 41610 (CA) PAGE 78, PARAGRAPHS D-E; OBIMIAMI BRICK & STONE (NIG) LTD V. ACB LTD (1992) LPELR 2177 (SC) PAGE 62, PARAGRAPHS D-E; LOKPOBIRI V. OGOLA & ORS (2015) LPELR 40838 (SC) PAGES 64-65, PARAGRAPHS E-A and OROJA & ORS V. ADENIYI & ORS (2017) LPELR 41985 (SC) PAGES 11-13, PARAGRAPHS E-B.
The position of the law is that a counter-claim is an entirely different suit, and can stand alone even when the main suit fails. See BIKO &ANOR V. AMAECHI & ORS (2018) LPELR-45069 (CA) PAGES 26-28, PARAGRAPH F. PER AKINBAMI, J.C.A.

WHETHER OR NOT HEARSAY EVIDENCE IS ADMISSIBLE

In Ojo V. Gharoro (2006) 2 -3 SC 105 at 113 paras 5 – 40, the Supreme Court per (Tobi, JSC) explained hearsay evidence as follows:-
“Let me first take the submission of learned Counsel for the appellant that the evidence of the 1st Respondent is hearsay. In the often cited case of the common law tradition of Subramanian V. Public Prosecutor (1956) 1 WLR 965 at 969, the Judicial Committee of the Privy Council held that evidence of a statement made to person by a person who is himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made. When a third party relates a story to another as proof of contents of a statement such a story is hearsay. Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. See Judicial Service Committee V. Omo (1990) 6 NWLR (Pt. 157) 407. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. See Utteh V. The State (1992) 2 NWLR (Pt. 223) 257. The word “hearsay” is used in various senses. Sometimes it means whatever a person declares on information given by someone else. The Evidence Act, Cap. 112, Laws of the Federation of Nigeria 1990, does not specifically use the expression “hearsay evidence” but the totality of Section 77 of the Act, by interpretation of the Courts, provides for hearsay evidence. PER AKINBAMI, J.C.A.

THE BURDEN OF PROOF IN A COUNTERCLAIM

Further on the burden of proof in a counterclaim, where the outcome is hinged on, or interwoven with the main suit, the Supreme Court, per Oguntade, JSC in Adedeji V. Oloso (2007) 5 NWLR (Pt. 1026) 133 at 165 paras A-H expounded the law in great details thus;
“Now, in George Onobruchere & Anor V. Esegine & Anor (1986) 2 SC. 385 at pp. 397 – 398; (1986) 1 NWLR (Pt. 19) 799 at page 806, this Court per Oputa, JSC restated the principles guiding the Court in deciding the party that bears the onus or burden of proof in a civil case. The Court said;
“An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the Plaintiff’s claim is admitted, that will be the end of the story. Similarly, if a particular averment of the Plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore, to discover where the onus lies in any given case, the Court has to look critically at the pleadings where for instance the Plaintiff pleads possession of the land in dispute as his root of title and the Defendant admits that possession but adds that the land was given to the Plaintiff on pledge, then the onus shifts onto the Defendant to prove that the Plaintiff is not the owner of the land his possession of which had been admitted. Once the Defendant admits the Plaintiff’s possession of the land in dispute in his statement of defence, then and there, the Plaintiff has on the pleadings discharged the onus of proof cast on him and Section 145 of the Evidence Act, Cap. 62 of 1958, will impose a burden on the Defendant to prove the negative – namely that the Plaintiff is not the owner. See Lawrence Onyekaonwu & Ors V. Ekwubiri (1966) 1 ALL NLR 32 at P. 35. In such a case, it is the Defendant who will begin and if at the close of his case, he fails to prove that the Plaintiff is not the owner, the Plaintiff’s claim succeeds without even the Plaintiff giving any further evidence”. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Yola, delivered on the 11th December, 2020 by Hon. Justice M. Z. Anka wherein the claim of the Appellant was dismissed with cost. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 14th of January 2021 setting out seven (7) grounds of Appeal. The reliefs sought by the Appellant are:
1. AN ORDER of this Honourable Court allowing the appeal.
2. AN ORDER of this Honourable Court setting aside the judgment of the Federal High Court of Justice sitting in Yola, Adamawa State delivered on the 11th day of December, 2020.
3. AN ORDER of this Honourable Court invoking Section 15 of the Court of Appeal Act, to evaluate the evidence on record and enter judgment in favour of the Appellant per the evidence on Record.
4. AND for such Order or Orders as this Honourable Court may deem just to make in the circumstances of this appeal.

The Appellant filed a Writ of Summons and statement of claim dated 10th August, 2018 claiming the following:
1. A DECLARATION that the threatened sale of the plaintiff’s properties lying and situate off Yola-Numan Road, opposite Missionary Quarters, Wuro Jabbe, Jimeta -Yola Adamawa State covered by Statutory Right of Occupancy No: ADS/7820 registered at No.101087 at page 101087 in volume 76 of the land Registry Yola, Adamawa State to settle an alleged loan from two different accounts is unreasonable, irregular, unlawful and should be stopped.
2. A DECLARATION of this Honourable Court that the Plaintiff has liquidated all his indebtedness to the defendant and is no longer indebted at all.
3. A DECLARATION that the defendant is not entitled to sale or auction of the plaintiff’s residential house lying and situated at 105 Kurmi Close Old GRA, off Atiku Abubakar Road, Jimeta-Yola covered in valuation survey and report No. ADS/1311, Kurmi Close Old GRA off Atiku Abubakar Road Jimeta-Yola, which was never. Given as collateral for any loan.
4. A DECLARATION that the plaintiff is entitled to recover his title documents in the possession of the Defendant.
5. AN ORDER compelling the defendant to forthwith release to the plaintiff his original Certificate of Occupancy No. ADS/1131 and statutory right of Occupancy No. ADS/7820 registered as No. 101087 at page 101087 in Volume 76 of the Land Registry, Yola Adamawa State in her possession.
6. AN ORDER of perpetual injunction restraining the defendant whether by itself, its servants, workmen, agents and/or privies and anybody acting for it or on its instructions from selling or advertising for sale by public auction and/or by private treaty or interfering in any way with the plaintiff’s quiet possession and enjoyment of his properties covered by Certificate of Occupancy No ADS/7820 registered as No. 101087 at page 101087 in volume 76 of the Lands Registry Yola, Adamawa State, or in any other place in Nigeria.
7. Costs of litigation.

At the trial, the Appellant denied liability and after hearing, the Court below dismissed the claim of the Appellant and dissatisfied with the decision, the Appellant filed a Notice of Appeal dated 18th December, 2020 and filed on the same 14th January 2021 setting out grounds of appeal.

The Appellant’s Brief settled by Martin Milkman Esq dated 22nd October, 2021 was filed on 25th October, 2021. He distilled 3 issues for determination as follows:
1. Whether the learned trial Judge erred in law when he dismissed the claims of the Appellant. Grounds 4, 5, and 6.
2. Whether the learned trial Judge was in error when he held that the entire evidence of PW1, was hearsay and suo motu raised the issue of validity of the documents tendered through the witness, and expunged same without giving the parties the opportunity to address the Court? (Grounds 1, 2 and 3)
3. Whether the learned trial Judge was right in law when he granted the reliefs sought in the Counter-Claim even when the Respondent failed woefully to support same with credible evidence? (Ground 7)

The Respondents on their part filed a Respondent’s brief settled by J. A. Udeagbala Esq., dated 17th February, 2022 and filed on the 21st February, 2022 wherein he formulated 3 issues namely:
1. Whether the learned trial Judge was right in dismissing the claims of the Appellant?
2. Whether the learned trial Judge was right in his evaluation and discountenance of the evidence of PW1, as hearsay including his witness Statement on Oath, and the entire documents tendered through him without inviting counsel to address the Court on it.
3. Was the trial Court right in granting the counterclaim of the Respondent?

After due consideration of the record of appeal, and respective briefs of counsel on both sides, the Court shall formulate a sole issue for determination in this appeal as follows:
Whether the Appellant established that outstanding indebtedness against him in favour of Respondent was liquidated, to warrant judgment in his favour.”

All the issues argued by the respective parties shall be resolved under the sole issue.

Appellant’s arguments on the Issues:
ISSUE ONE:
Whether the learned trial Judge erred in law when he dismissed the claims of the Appellant?
Appellant’s counsel urged this Court to resolve this issue in favour of the Appellant, and against the Respondent. He contended that, the case of the parties is that the Appellant was granted a bank guarantee in the year 2009, in favor of Ashaka Cement. That in June, 2010, when the Ashaka Cement called up the balance of the unpaid guarantee, the Respondent paid. Secondly, that in April, 2011, the Appellant accessed a loan facility of Ten Million Naira (N10,000,000) only from the Respondent. While the case of the Appellant is that, he has liquidated both the bank guarantee and the loan facility, the Respondent on the other hand contented that the Appellant did not liquidate the amount, but same accrued to the sum of Seventy Two Million, Eight Hundred and Forty-Seven Thousand, Two Hundred and Ninety One Naira Seven Kobo (N72,847,291.07) only.

The facts in support of the Appellant’s case can be gleaned from the Statement of Claim, Reply to the Statement of Defence and Defence to the Counter-Claim. See pages 7 – 12 and 190 -199 of the Record of Appeal.

At the trial, the Appellant as well as his son Mohammed Abubakar Modibbo testified, and tendered several documents which were admitted in evidence and marked as Exhibits “A – A21”, “8 – 89”, “C”, “0”, “01”, “E”, “F”, “G”, “H” and “J – J2” respectively.

The learned trial Judge dismissed the case of the Appellant, held that the Appellant is indebted to the Respondent and granted the Respondent’s counter-claim. In dismissing the case of the Appellant, he held at pages 308 – 309 of the Record of Appeal, thus:
“… the Court having taken a look at exhibits A to A21 has realized that Deposit Slips 5102575, 9490579, 0026464, 0026120, 9285523, 9296279, 9285471, 9348219, 9345204 and 9286257 evidencing exhibits A12 to A21 respectively, were all paid before the expiration of the 12 months guarantee period, which ought to be from June, 2010 when the defendant was called upon to pay the outstanding loan by Ashaka Cement. The plaintiff who also insists that he had paid the outstanding debt due for the loan he took sometime in April, 2011 tendered exhibits B to B9 series in evidence to prove his claim of repayments. However what baffles the Court is that some of these exhibits are tellers for payment into the plaintiff’s account before the loan of N10,000,000 was granted the plaintiff. See exhibit B payment of N800,000 on 24th January, 2011. Exhibit B13 for payment also on 18th January, 2011, as well as exhibit B6 of 13th January, 2011. All the above payments were made to the plaintiff’s account before the loan was issued and received by the plaintiff on the 5th April, 2011.”

This Court is urged to take cognizance of the fact that, the learned trial Judge after evaluating the evidence adduced, found as a fact that some monies were paid to the Respondent as evidenced by the deposit slips. However, merely presumed that Ten (10) of those deposits were made before the expiration of the twelve (12) months of the payment of the bank guarantee. Surprisingly, the lower Court kept mute on the other deposits made after the twelve months.

The deposit slips tendered, admitted and marked as “Exhibits A-A21” upon which the Appellant anchored his contention that the Bank Guarantee was paid are herein-under reproduced.
S/N DATE AMOUNT DEPOSIT SLIP NUMBER
1 14/04/2010 N650,000.00 9285522
2 15/04/2010 N700,000.00 9285471
3 16/04/2010 N400,000.00 9296279
4 17/04/2010 N344,000.00 9345219
5 19/04/2010 N1,000,000.00 9345204
6 04/05/2010 N866,000.00 0026464
7 05/05/2010 N170,000.00 0026120
8 30/07/2010 N340,000.00 1687625
9 29/10/2010 N300,000.00 2432265
10 23/11/2010 N500,000.00 2516445
11 15/12/2010 N450,000.00 2311247
12 04/01/2011 N500,000.00 2316865
13 31/01/2011 N830,000.00 3052893
14 07/04/2011 N200,000.00 3882802
15 07/04/2011 N150,000.00 3882869
16 14/07/2011 N500,000.00 6586139
17 29/07/2011 N500,000.00 6868437
18 24/10/2011 N1,000,000.00 6867503
19 28/09/2009 N500,000.00 5102575
20 20/04/2010 N780,000.00 9286257
21 27/04/2010 N200,000.00 9490579
22 30/11/2010 N250,000.00 2518301
23 Money in the Account N3,000,000.00
Total 15,680,000.00

The highlighted deposits are the ones referred to by the trial Court. The amount in the said deposits are: N700,000.00, N1,000,000.00, N866,000.00, N170,000.00, N500,000.00, N780,000.00 and N200,000.00. The total is N4,216,000. If this amount is deducted from the total of N15,680,000 evidenced in the total deposits, it means the sum of N11,464,000 was paid to the Respondent and the trial Court had no query with it yet kept mute about it.

It is submitted that, the implication of the above is that the sum of N11,464,000 was paid in respect of the Guaranteed sum, and the trial Court ought not to have dismissed the entire case of the Appellant.

The Appellant testified as PW2. In his evidence in chief (Written Statement on Oath deposed to on the 10th day of August, 2018, containing 21 paragraphs), he gave a vivid description of the transaction leading to the Bank Guarantee and credit facility that are in issue. He equally testified to the effect that he has liquidated the Bank Guarantee, and loan facility granted to him by the Respondent. He further made reference to the several deposit slips which were tendered and admitted in evidence.

Learned counsel submitted that a Bank Guarantee is not a loan in the real sense of it. It is an assurance that a bank provides to a contract between two external parties, a buyer and a seller. It serves as a promise from a financial institution that, it will assume liability for a particular debtor, if its contractual obligations are not met. In other words, the bank offers to stand as the guarantor, on behalf of a business customer in a transaction. Whereas a bank loan on the other hand, is a sum of money borrowed by a customer or business, from a bank for a specific purpose in exchange for future repayment of the principal sum and interest. A Bank Guarantee, therefore cannot be converted into a separate bank loan, that attracts different interest from the earlier agreed interest, in addition to the repayment of the principal sum paid to the third party (which in this case is Ashaka Cement, Plc).

In the case of JAY V. SKYE BANK PLC (2016) LPELR 40185 (CA) PAGES 14-15, PARAGRAPHS D-B, this Court held thus:
“According to the Black’s Law Dictionary, Eight Edition, a Guarantee means the following: “1. To assume a suretyship obligations; to agree to answer for a debt or default. 2. To promise that a contract or legal act will be duly carried out. 3. To give security to. “Further definition of Guarantee was given by the Apex Court in the case of Chami v. U.B.A. Plc… where it was defined: ”As a written undertaking made by one person to another to be responsible to that other if a third person fails to perform a certain duty e.g. payment of debt. Thus, where a borrower (i.e. the third party) fails to pay an outstanding debt, the guarantor (as surety as he was sometimes called) becomes liable for the said debt.”

See also the cases of OJEMENI V. STERLING BANK PLC (2014) LPELR 24442 (CA) PAGE 6, PARAGRAPHS A-C and NWANKWO & ANOR V. ECUMENICAL DEVELOPMENT CO- OPERATIVE (2007) LPELR 2108 (SC) PAGES 41-42, PARAGRAPHS C-A.

It is submitted that the learned trial Judge did not comprehend the nature of Bank Guarantee when he held at page 308 of his judgment thus:
“… the Court having taken a look at exhibits A to A21 have realized that Deposit Slips 5102575, 9490579, 0026464, 0026120, 9285523, 9296279, 9285471, 9348219, 9345204 and 9286257 evidencing exhibits A12 to A21 respectively were all paid before the expiration of the 12 months guarantee period which ought to be from June, 2010 when the defendant was called upon to pay the outstanding loan by Ashaka Cement.”

Learned counsel reiterated that, a Bank Guarantee is not a loan to be paid within a given period. The twelve (12) months stated in the bank guarantee is the period the bank is standing in as a guarantor. The guarantee is to cover a period of twelve months.

Immediately the Bank was called upon to pay the unpaid balance of the guaranteed sum, within the lifetime of the guarantee and it did, its money becomes due from the customer. It is therefore erroneous for the trial Judge to hold that monies paid within the period of twelve months from the time the bank paid Ashaka Cement is not for the repayment of the loan. That decision is not supported by the evidence on record.

It is submitted that a decision that is not supported by evidence on record is perverse and liable to be set aside by this Honourable Court. See the case of OSUJI V. EKEOCHA (2009) LPELR 2816 (SC) PAGE 40, PARAGRAPHS A-D; ELEGBEDE V. THE STATE (2016) LPELR 41131 (CA) PAGE 26, PARAGRAPH B; ISU V. UCHE & ORS (2009) LPELR 8855 (CA) PAGE 25, PARAGRAPHS B-D; MINI LODGE LTD & ANOR V. NGEI & ANOR (2009) LPELR 1877 (SC) PAGES 45-46, PARAGRAPHS E-A and IHUNWO V. IHUNWO & ORS (2013) LPELR 20084 (SC) PAGES 18-19, PARAGRAPHS F-B.

Learned counsel elucidated further that, the first transaction between the Appellant and the Respondent was the Bank Guarantee wherein, the Respondent served as a guarantor for the Appellant, in his contract with Ashaka Cement Plc, for the supply of cement to the tune of Twenty Million Naira (N20,000,000.00) only. One of the terms of the offer expressly stated on the face of Exhibit “K”, which is the bank guarantee agreement or contract, was that all fees with respect to the said Bank Guarantee, was to be paid upfront before the Guarantee will be granted, that is, processing fee, management fee and guarantee fee. This goes to say that the Appellant paid all fees required of him upfront, and also provided a security for the guarantee as expressly provided in the contract. The Appellant in meeting his obligation to Ashaka Cement Plc, made several payments to Ashaka Cement Plc as evidenced in the receipts tendered and marked “Exhibits J – J2” to the tune of Nine Million, Seven Hundred Thousand Naira (N9,700,000.00) only. From the tenor of Exhibit “K”, the only entitlement of the Respondent is to recover the unpaid balance or in the event of any default, is to immediately go after the security to recover its money, but not to start charging arbitrary interest.

The Appellant was unable to pay up the outstanding balance of Ten Million, Three Hundred Thousand Naira (N10,300,000.00) only, the Respondent was therefore called upon by Ashaka Cement Plc to offset same. The Respondent was supposed to have paid only the outstanding sum of Ten Million, Three Hundred Thousand Naira (N10,300,000.00) only to Ashaka Cement Plc. being the outstanding amount due but unpaid. However, the bank paid about Fourteen Million Naira (N14,000,000) only. Exhibit “L1”, tendered by the Respondent which was a letter issued to the Appellant by the Respondent, reveals that the Appellant had already informed the Respondent that the outstanding money with the Ashaka Cement was Fourteen Million Naira (N14,000,000) only.

Learned counsel noted that, the evidence, as can be seen in the agreement entered into by the Appellant and the Respondent, the only amount the Appellant was entitled to pay to the Respondent is the balance of the money paid to Ashaka Cement. The interest in bank guarantee agreed was paid upfront as evidenced by Exhibit “K”.

This Court is urged to find, and to hold that the Respondent is not entitled to charge interest outside the interest agreed with the Appellant. This is the law as can be seen in the case of UBA PLC & ANOR V. LAWAL (2007) LPELR- 9042 (CA) PAGES 15- 17, PARAGRAPHS E -O. Learned counsel referred to the law as stated above, that it is not in doubt that the Respondent is not entitled to charge any other interest outside the charges paid upfront by the Appellant, and thereafter, it is for the Respondent to recover the outstanding balance should there be any default, by proceeding against the Appellant in damages. It is not for the Respondent to unilaterally transfer such facility to another category of loan facility, and begin to charge an interest. What the Appellant is bound to pay the Respondent is Fourteen Million Naira (N14,000,000) only as the money paid to Ashaka Cement which is even in excess. The question asked by learned counsel, whether the Appellant paid the said amount? He answered in the affirmative.

PW1, and PW2 during cross-examination maintained that the Appellant had liquidated the sum he owed the Respondent, as can be seen in the Record of Appeal. The Respondent who assisted the Appellant to establish the above fact, under cross-examination, failed to place before the trial Court any evidence establishing the fact that, the Appellant did not clear his indebtedness to the bank within the said period. The Respondent who is claiming that they paid the sum of Sixteen Million, One Hundred and Seventeen Thousand, Nine Hundred and Forty-Six Naira, Seventy Kobo to Ashaka Cement Plc, on behalf of the Appellant, did not place any documentary evidence to show the actual amount paid to the Ashaka Cement, Respondent did not call the said Ashaka cement to give evidence on the amount paid to it, or place any other evidence whatsoever before this Court to prove that they actually paid the said amount to Ashaka Cement, Plc.

It is submitted that, with respect to the Bank Guarantee, the Appellant has successfully proven the payment of his indebtedness to the Respondent as required by law, therefore this Court is urged to find, and to hold that the trial Court was in error when it failed to enter judgment on this part of the Appellant’s claim. See FCMB PLC V. ROPHINE NIG. LTD. & ANOR. (2017) LPELR 42704 (CA) PAGE 17, PARAGRAPHS E – D, this Honourable Court spelling out how repayment of loan is proved held:
“As earlier stated, proof of payment of indebtedness cannot be made by a mere denial of the debt … In the case of SALE V. BANK OF THE NORTH LTD. (2006) 2 – 3 (SC) 1, referred to by the lower Court, the Apex Court held thus: In a situation such as this, where the Appellant claimed to have repaid the loan overdraft against the statements of accounts tendered by the Respondent by showing nonpayment by the Appellants the proof of payment by the mere ‘ipsi dixit’ of the Appellant cannot be sufficient proof of payment of the debt. The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgment showing on the face of it that the bank has received the payment. “

On the strength of the foregoing, learned counsel urged this Court to hold that the Appellant has liquidated his indebtedness to the Respondent with respect to the Bank Guarantee.

With respect to the loan of Ten Million Naira (N10,000, 000.00), it is not in issue that the Appellant obtained a loan facility of Ten Million Naira (N10,000,000.00) only, from the Respondent in the year, 2011. The only issue is whether the Appellant has liquidated the said loan and if not, what is the outstanding unpaid balance? While the Appellant’s position is that he has liquidated the said loan, the contention of the Respondent is that the Appellant is still heavily indebted to her.

It is submitted that the Appellant has offset the loan facility granted to him. The Appellant in line with the requirement of the law, has placed in evidence some of the deposit slips he could lay his hands on which were duly received, and acknowledged by the Respondent. The ten (10) FCMB Deposit slips tendered were admitted without objection and marked as “Exhibits B – B9”. A careful perusal of the said “Exhibits B – B9”, which are the FCMB deposit slips the Appellant was able to find reveal that the Appellant has paid a total sum of Eight Million, Three Hundred and Nine Thousand Naira (N8,309,000.00) only in repayment of the Ten Million Naira (N10,000,000.00) loan. For ease of reference, the said “Exhibits B – B9” are herein under reproduced.
DATE AMOUNT DEPOSIT NUMBER SLIP
05/11/2011 N500,000.00 3266510
24/01/2011 N1,809,000.00 2607460
05/11/2011 N500,000.00 2266510
18/01/2011 N400,000.00 2598641
31/01/2011 N500,000.00 2608808
18/01/2011 N950,000.00 2598642
19/04/2011 N200,000.00 3356133
08/04/2011 N450,000.00 3355575
27/08/2015 N1,000,000.00 0430705
28/08/2015 N2,000,000.00 2287104
TOTAL N8,309,000.00

The Appellant also tendered his statements of account which were admitted in evidence and marked as Exhibits “D” and “D1”.

In addition to the above payment, the sum of One Million Naira (N1,000,000.00) paid on 27/08/2015, as captured by deposit slip number 0430705, and the sum of Two Million Naira (N2,000,000.00), deposited on 28/08/2015, as captured by deposit slip number 2287104 added to the sum of Eleven Million, Seventy-Four Thousand, Two Hundred and Ten Naira, Ninety-Eight Kobo (N11,074,210.98) will amount to the sum of Fourteen Million, Seventy-Four Thousand Naira, Two Hundred and Ten Naira, Ninety-Eight Kobo (N14, 074, 210.98) only.

The law is trite that admitted facts need not be proved. In the 5th paragraph of the Respondent’s letter dated 27th July, 2010, marked as Exhibit “L1”, the Respondent acknowledged the receipt of the Appellant’s response to its letter dated 12th July, 2010, which was exhibited by both parties in the Statement of Claim and Statement of Defence respectively, it was expressly stated by the Respondent that the Appellant’s account balance was N2,666,248.21 as against the N3,000,000.00 claimed by the Appellant. Assuming without conceding that the account balance of the Appellant at the time Ashaka Cement demanded for the payment was N2,666,248.21, it still goes to show that the Appellant had some undisputed money in his account with the Respondent, which if added to the deposits made will amount to the sum of N15,346,248.21, which is still more than the amount he owed the Respondent. The Respondent having admitted that the Appellant had the sum of N2,666,248.21 in his account with them, need not go on the voyage of proving same. See CAPPA AND D’ALBERTO LTD V. DEJI AKINTILO (2003) LPELR-829 (SC) PAGE 2S PARAGRAPH E; PRINCE AMAH V. MRS. VICTORIA AMAH (2016) LPELR- 41087 (CA) PAGE 43 PARAGRAPH E .

It is submitted that, what the learned trial Judge did in his judgment, at pages 312-317 of the Record of Appeal is to compare the Appellant’s pleading, and his Counsel’s submissions in the final written address, to hold that it is contradictory and anchor his judgment on that conclusion. More so, the Court which agreed that the Respondent did not place any evidence to establish how the Appellant became indebted to it at that amount, relied on the Statement of Account tendered by the Appellant to arrive at the conclusion that the Appellant is indebted to the Respondent. The statement of account was not prepared by the Appellant to amount to statement against interest and secondly, it does not contain how the indebtedness was arrived at.

Learned counsel submitted that, the learned trial Judge was in grave error to have equated Counsel’s address to the status of evidence. The Respondent has to prove that the amount paid by the Appellant, was not sufficient to offset the indebtedness of the Appellant. The evidential burden of proof has shifted to the Respondent, by virtue of the fact that the Appellant has discharged the initial burden placed on him by law, the burden of proof on the Respondent is made even heavier, by the fact that the Respondent has a Counter-Claim wherein, she claimed that the Appellant is indebted to her to the tune of Seventy Two Million, Eight Hundred and Forty-Seven Thousand, Two Hundred and Ninety One Naira Seven Kobo (N72,847,291.07) only.

This Court is urged to resolve this issue in favour of the Appellant and against the Respondent and allow the appeal on this issue.

ISSUE TWO:
Whether the learned trial Judge was in error when he held that the entire evidence of PW1, was hearsay and suo motu raised the issue of validity of the documents tendered through the witness and expunged same without giving the parties the opportunity to address the Court?
This Court is urged to resolve this issue in favour of the Appellant.

Appellant’s counsel referred to the judgment, at pages 307 – 308 of the Record of Appeal, where the Court held that the evidence of PW1, is hearsay and consequently expunged all the documents tendered through him.

The evidence of this witness referred to can be seen at page 273 of the Record of Appeal thus:
“Yes everything I said here is as happened as my father told me.”

It is submitted that it is wrong for the trial Court to embark on the interpretation of the evidence of a witness.
The evidence of PW1, as reproduced above is vague. The witness did not say everything he said in his statement on oath was based on what his father told him. Therefore the trial Judge was wrong, to have embarked on interpreting the evidence of the witness.

It is submitted further that, the aim of cross-examination is not to confuse a witness or extract a vague answer from a witness, and thereafter interpret it to defeat his evidence. The scope of cross-examination is as stated in Section 223 of the Evidence Act, 2011.

PW1, in his statement on oath categorically stated at paragraphs 6, 9, 10 and 13 that those facts were based on the documents he examined. This evidence was not specifically contradicted under cross-examination. It is submitted that the trial Judge, was in error when he discountenanced all the documents tendered through the witness as hearsay.

Learned counsel reiterated, that the decision of the trial Judge, deciding to discountenance the documents tendered is erroneous. The documents were admissible, and validly admitted in evidence. What determines admissibility of a document is; whether the document is relevant, whether the document is admissible in law, and whether the document is pleaded. See ROYORK NIGERIA LIMITED V. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, SOKOTO STATE &. ANOR (2017) LPELR 42506 (CA) PAGES 23-24, PARAGRAPHS A- B – KIDAGUMA V. ABOJA (2012) LPELR 14352 (CA) PAGE 21, PARAGRAPH A; OKONJI &. ORS V. NJOKANMA &. ORS (1999) LPELR 2477 (SC) PAGE 14, PARAGRAPHS C-F; IYAGBA V. SEKIBO &. ORS (2008) LPELR 4346 (CA) PAGES 18-19, PARAGRAPHS F-D; ANAJA V. UBA PLC (2010) LPELR 3769 (CA) PAGES 33-34, PARAGRAPHS F-A and OKOYE &. ANOR V. OBIASO &. ORS (2010) LPELR 2507 (SC) PAGES 21-22, PARAGRAPHS F-A.

It is submitted that in the case at hand, the documents are relevant, where pleaded and admissible in law. Therefore, there was no justification for the trial Court to discountenance the documents validly tendered.

In the instant case, the only ground upon which the trial Court discountenanced the document, is that the witness through whom the document was tendered gave hearsay evidence. It is submitted that once a document is relevant, admissible in law, and pleaded it can be tendered, and admitted in evidence through any witness and even from the bar.

Learned counsel assuming without conceding that PW1, gave hearsay evidence, submitted that it is not the decision of the Court that he is an incompetent witness. A witness who is incompetent to testify, can even tender documents.

In the instant case, there was nothing vitiating the documents and therefore the trial Court was in grave error when it discountenanced the documents.

It is submitted that when a document is tendered and admitted in evidence, the Court becomes functus officio, it cannot sit on appeal over its decision. The only exception is when the Court finds that the documents are not admissible in law, and that is not the case at hand.

This Court is urged to hold that the learned trial Judge was right when he raised doubt as to the correctness of his decision to discountenance the documents.

More so, DW1, was shown the documents tendered through PW1, and PW2, and he identified them and admitted that they are deposit slips of their bank, and equally identified all the other documents. See page 292 line 16, and page 293, lines 1- 5 of the Record of Appeal.

On the strength of the foregoing, this Court is urged to resolve this issue in favour of the Appellant and allow the appeal on this issue.

ISSUE NO.3
Whether the learned trial Judge was right in law when he granted the reliefs sought in the Counter Claim even when the Respondent failed woefully to support same with credible evidence?
Appellant’s counsel urged this Court to resolve this issue in favour of the Appellant.

The position of the law as stated in plethora of cases is that a counter-claim is a distinct and independent suit even though it is anchored on the main suit. See OKORO & ANOR v. ELEKWANYA & ANOR (2018) LPELR- 5071(CA) PAGES 10-11, PARAGRAPHS A-C; EKHATOR V. EKHATOR & ORS (2014) LPELR 24490 (CA) PAGE 30, PARAGRAPH A; BIRMA & ORS V. DAMCIDA & ANOR (2016) LPELR 41610 (CA) PAGE 78, PARAGRAPHS D-E; OBIMIAMI BRICK & STONE (NIG) LTD V. ACB LTD (1992) LPELR 2177 (SC) PAGE 62, PARAGRAPHS D-E; LOKPOBIRI V. OGOLA & ORS (2015) LPELR 40838 (SC) PAGES 64-65, PARAGRAPHS E-A and OROJA & ORS V. ADENIYI & ORS (2017) LPELR 41985 (SC) PAGES 11-13, PARAGRAPHS E-B.

The position of the law is that a counter-claim is an entirely different suit, and can stand alone even when the main suit fails. See BIKO &ANOR V. AMAECHI & ORS (2018) LPELR-45069 (CA) PAGES 26-28, PARAGRAPH F.

It is submitted that just like the Plaintiff in a suit has the burden of proving his claim, a Counter-claimant also has the onus of proving his counter-claim for it to succeed, even when the main claim fails. It is only when the burden on the counter-claimant has been discharged that the Court can go ahead to grant the counter-claim. See OROJA & ORS v. ADENIYI &ORS (2017) LPELR-41985(SC) PAGES 23-24, PARAGRAPHS E-A.

In the instant case, the Respondent counter-claimed against the Appellant the sum of Seventy-Two Million, Eight Hundred and Forty-Seven Thousand, Two Hundred and Ninety-One Naira Seven Kobo (N72,847,291. 07) only. See pages 112-113 of the Record of Appeal.

It is submitted that, the Respondent who asserted that the Appellant is indebted to her, was unable to place any evidence on record as to how much was paid by the Appellant, in repayment of the loan as at the time the loan expired, and how much was the unpaid balance as at the time the loan expired. Respondent equally failed to plead, and prove how the Seventy Two Million, Eight Hundred and Forty-Seven Thousand, Two Hundred and Ninety One Naira Seven Kobo (N72,847,291.07) she is claiming to be the outstanding and unpaid balance of the loan accrued.

And that a clinical consideration of the contention of the parties both in the main suit, and the Counter Claim, is that while the Respondent is claiming that the Appellant is indebted to her to the tune of Seventy-Two Million, Eight Hundred and Forty-Seven Thousand, Two Hundred and Ninety-One Naira Seven Kobo (N72,847,291.07) only, the Appellant on the other hand is denying the said indebtedness. Considering the stage of pleadings of the parties, the burden is squarely on the Respondent who asserts the positive, and not the Appellant who asserts the negative. See NSEFIK V. MUNA (2007) 10 NWLR (PT. 1043) PAGE 514, PARAGRAPHS D-F; OKADIGBO & ANOR V. OJECHI & ORS (2011) LPELR 4687 (CA) PAGES 59-60, PARAGRAPHS F-A; UNILORIN & ORS V. OBAYAN (2018) LPELR 43910 (SC) PAGE 14, PARAGRAPHS B-E.

In addition to the above established position of the law, it is submitted that the law is settled beyond probability that, in the case of indebtedness, it is he who asserts that the other is indebted to him, that has the burden of proving same. See ESSET PETROLEUM ENTERPRISES NIG. LTD. V. PETROLEUM EQUALIZATION FUND MANAGEMENT BOARD & ANOR. (2019) LPELR 47355 (CA) PAGE 25, PARAGRAPHS D – E.

The Respondent who asserted that the Appellant is indebted to her, was unable to lead any credible evidence on how much was paid by the Appellant, in repayment of the loan as at the time the loan expired, and how much was the unpaid balance as at the time the loan expired. She equally failed to plead and prove how the Seventy-Two Million, Eight Hundred and Forty-Seven Thousand, Two Hundred and Ninety- One Naira Seven Kobo (N72,847,291.07) only, she is claiming to be the outstanding and unpaid balance of the loan accrued.

Learned counsel submitted that the Respondent who was a Counter-Claimant, never demonstrated how the balance of the alleged indebtedness of the Appellant was arrived at. In fact, the sole witness of the Respondent under cross-examination expressly stated that, he was only employed by the Respondent in the month of January, 2017. DW1, further admitted that he was not an employee of the bank when the Bank Guarantee was granted, and so would not know what transpired at the time between the parties. This also goes to show that DW1, does not and could not have known what went on in the accounts of the Appellant from the year 2009, to 2016.

It is further submitted that the Respondent just dumped the Exhibits on the Court, and the trial Judge was in error when he untied same in the comfort of his chambers, examined same and anchored the judgment in favour of the Respondent on same. The trite position of the law is that a Judge cannot untie documents, and examine same in the comfort of his chamber as doing that will amount to doing clustered justice. See the case of OMISORE &ANOR VS. AREGBESOLA &ORS (2015) LPELR- 24803 (SC) PAGES 67 -68, PARAGRAPHS D -B.

The law is settled that, tendering statement of account is not sufficient to prove indebtedness. See FIRST CITY MONUMENT BANK PLC V. ROPHINE NIGERIA LIMITED & ANOR. (2017) LPELR 42704 (CA) PAGES 22-23, PARAGRAPHS F – C; AKPAN V. FIRST BANK OF NIG. PLC (2018) LPELR 44340 (CA) PAGES 14 – 19, PARAGRAPHS E – F; TORNO INTERNAZIONALE NIGERIA LIMITED & ANOR V. FSB INTERNATIONAL BANK (2013) LPELR 22616 (CA) PAGE 32-33, PARAGRAPHS B-D.

The learned trial Judge in support of the decision that the Appellant is indebted to the Respondent relied on the statement of accounts of the Appellant. It is submitted that, it is not enough to rely on statements of accounts to establish indebtedness. See IFEMESIA V. ECO BANK NIG. PLC (2018) LPELR 46589 (CA) PAGES 47 – 51, PARAGRAPHS E – D.

Learned counsel submitted that, the learned trial Judge misapprehended the case of the Appellant, when he held that the Appellant contended that no interest is charged in Bank Guarantee. That was never the case of the Appellant. The contention of the Appellant is that interest in Bank guarantee is charged and paid upfront. That in the event the Bank makes any payment, the bank goes against the guarantee to recover its money either from the Appellant’s money in her custody, or from the collateral deposited with her. See UBA PLC & ANOR V. LAWAL (2007) LPELR- 9042 (CA) PAGES 15- 17 PARAGRAPHS E -D.

Finally, this Court is urged to resolve this issue in favour of the Appellant, and allow the appeal on this issue, set aside the judgment of the trial Court and enter judgment in favour of the Appellant per his claims and dismiss the Counter-Claim.

SUBMISSIONS OF RESPONDENT’S COUNSEL ON ISSUES
ISSUE 1:
“Whether the learned trial Judge was right in dismissing the claims of the Appellant”?
Learned counsel on this issue submitted that the trial Court was right in dismissing the claims of the Plaintiff/ Appellant.

This is because the reliefs or claims of the Appellant are declaratory, and the law is trite with respect to parties seeking declaratory reliefs, as the granting or refusal of such claims is within the discretion of the trial Court, and must be based on the proof of the reliefs sought.

The claims of the Plaintiff/Appellant as found on page 10, of the Record of Appeal are as follows:-
a. A declaration that the threatened sale of the Plaintiff’s properties lying and situate off Yola – Numan Road, opposite Missionary Quarters, Wuro Jabbe, Jimeta – Yola, Adamawa State covered by statutory Right of occupancy No. ADS/7820 registered as No. 101087 at page 101087 in Volume 76 of the Land Registry Yola, Adamawa State, to settle an alleged loan from two different accounts is unreasonable, irregular, unlawful and should be stopped.
b. A declaration of this Honorable Court that the Plaintiff has liquidated all his indebtedness to the Defendant and is no longer indebted at all.
c. A declaration that the Defendant is not entitled to sale or auction the Plaintiff’s residential house lying and situate at 105 Kurmi Close, Old GRA, off Atiku Abubakar Road, Jimeta – Yola covered in valuation survey and report No. ADS/1131, Kurmi Close, Old GRA, off Atiku Abubakar Road, Jimeta – Yola, which was never given as collateral for any loan.
d. A declaration that the Plaintiff is entitled to recover his title documents in the possession of the Defendant.
e. An Order compelling the Defendant to forthwith release to the Plaintiff his original certificate of occupancy No. ADS/11311 and Statutory Right of Occupancy No. ADS/7820 registered as No. 101087 at page 101087 in Volume 76 of the Land Registry Yola, Adamawa State in her possession.
f. An Order of perpetual injunction restraining the Defendant
g. Whether by itself, its servants, workmen, agents, and/or privies and anybody acting for it or on its instructions from selling or advertising for sale by public auction and/or by private treaty or interfering in any way with the Plaintiff’s quiet possession and enjoyment of his properties covered by Certificate of Occupancy No. ADS/1131 and statutory Right of Occupancy No. ADS/7820 registered as No. 101087 at page 101087 in Volume 76 of the Land Registry Yola, Adamawa State or in any other place in Nigeria.

The grant or refusal of the above reliefs are discretionary, and for the Court to exercise its discretion in favour of a Claimant or Plaintiff, he must convince the Court through credible evidence that he is entitled to such discretion. See AYANRU V. MANDILAS LTD. (2007) 10 NWLR (PT. 1043) 462 at 477 to 478 paras H – A.

In the present case, the Plaintiff/Appellant claimed he had liquidated all the money borrowed from the Defendant/Respondent, but could not lead credible evidence in proof of the claim, instead, he actually proved his indebtedness to the Defendant/Respondent as observed by the learned trial Judge, in his judgment. In that, he who asserts must prove, and whoever desires to have judgment in his favour must establish his case on a preponderance of evidence. See Sections 131 – 133 of the Evidence Act, 2011.

The reliefs sought by the Plaintiff/Appellant are hinged on paragraphs 8, 9, 13 and 15 of the Statement of Claim of the Plaintiff as can be seen on pages 6 – 11 of the Record of Appeal.

Therefore, for the Plaintiff to be entitled to the reliefs sought, he must satisfy the Court with credible evidence that, he has indeed liquidated the sums borrowed from the Defendant/Respondent and this, the Plaintiff/Appellant has failed woefully to do. The Appellant has failed to prove his case in accordance with his pleadings. In one breath, he would admit he is indebted to the Respondent, and in another breath, he would turn around to claim he has paid substantial part of the loan, or has paid off all his indebtedness. See ALAO V. AKANO (2005) 4 SC. 25 at 30 paras 20 – 35. The foundation of the Appellant’s case anchored on paragraphs 8, 9, 13 and 15 (supra) of the Statement Claim, has not been established by the Plaintiff/Appellant to entitle him to the declaratory reliefs sought hence the trial Court was right in dismissing the case and counsel urged this Court to so hold.

The Plaintiff/Appellant in a bid to prove that he has liquidated the sums owed to the Defendant/Respondent, tendered in evidence exhibits A – A21 and B – B9. The trial Court while evaluating the evidence of the Plaintiff/Appellant noticed that deposit slips A12 – A21 respectively were all paid before the expiration of the 12 month guarantee period which ought to be from June 2010, the Bank Guarantee having been granted the Plaintiff on the 28th May, 2009. The Plaintiff/Appellant (PW2) under cross-examination at page 282, of the Record of Appeal, admitted that he had been enjoying Bank Guarantee from the Defendant since 2001, and was sometimes paying up the guaranteed sum within two (2) months, until the Bank Guarantee of 2009, which he was unable to pay at the end of the guaranteed period. This shows he understood the operation of the facility very well, as opposed to his claim that he was manipulated into signing documents by the Respondent.

In the same vein, the Plaintiff/Appellant in trying to prove that he had liquidated the N10 Million loan he took from the Defendant in April, 2011 tendered exhibits B – B9 series, where the trial Court while evaluating the evidence discovered that exhibits B, B13 as well as B6 were exhibiting payments made before the loan was even granted. It is settled law, that evaluation of evidence is the primary responsibility of the trial Court. Once there is proper evaluation of evidence by a lower Court, an appellate Court has no business interfering unless the decision is perverse, and has occasioned a miscarriage of justice. See FBN V. OZOKWERE (2013) 12 SC. (Pt. 111) 63 at 100 paragraph 20. In the instant case, the trial Court carried out a thorough evaluation of the evidence adduced hence his decision was not perverse.

The Plaintiff/Appellant claimed in his statement of claim that, he has liquidated all the sums borrowed from the Defendant. He has the burden to prove by credible evidence that, he has indeed liquidated same, and not that he has made part payments. He never pleaded that he made part payment, and evidence at variance with pleadings goes no issue at all, it is contrary to issues joined and therefore must be discountenanced. See OKORO V. DAKOLO (2006) 7 SC (Pt. 111) 84 at 92 para 20; OKHUAROBO V. EGHAREVBA (2002) 5 SC. (Pt. 1) 141 at 161 para 15. The trial Court was therefore on track when it dismissed the case of the Plaintiff/Appellant for failure to prove that he had indeed liquidated the sums borrowed from the Defendant/Respondent as he claimed.

Throwing more light on the sacred duty imposed on the trial Court in respect of evaluation of the evidence before it, including the credibility of witnesses and assessment of the evidence.

See MPKPINANG & 4 ORS V. NDEM &ORS (2012) 12 SC. (Pt. iv) 1 at 21 paras 5 – 30; Gilbert Onwuka & Ors V. Micheal Ediala & Ors (1989) 1 SC. (pt. 11) 1.

The implication of not proving a claim for declaration of right, is the dismissal of such a claim, hence the trial Court was right in dismissing the Plaintiff/Appellant’s claim. See Alao V. Akano (supra) at page 33 para 10. He urged this Court to find and hold that, the trial Judge was right and on point in law when he dismissed the suit of the Plaintiff/Appellant, and resolve this issue in favour of the Respondent.

ISSUE 2 :
“Whether the learned trial Judge was right in his evaluation and discountenance of the evidence of PW1, as hearsay including his witness Statement on Oath and the entire documents tendered in evidence through him without inviting Counsel to address the Court on it”.
In arguing this issue counsel submitted, that the trial Judge was on course when he discountenanced the evidence of PWI, as hearsay evidence. This issue as raised by Appellant, is indeed questioning a very important duty of the trial Court, in the delivery of justice to parties before it. The trial Court has the duty to evaluate the evidence adduced before it, and this duty cannot be shared with either the parties to the suit or their Counsel. By Section 38 of the Evidence Act, 2011, hearsay evidence is not admissible except as provided under the Act. In essence, hearsay evidence in its logical sense, is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests also in part on the veracity and competence of some other person. See Asake v. Nigerian Army Council (2007) 1 NWLR (Pt. 1015) 408 at 426 para F. (CA).

PWI, at page 273, of the Record under cross-examination affirmed that everything he said to the Court was as informed him by his father, PW2.

In Ojo V. Gharoro (2006) 2 -3 SC 105 at 113 paras 5 – 40, the Supreme Court per (Tobi, JSC) explained hearsay evidence as follows:-
“Let me first take the submission of learned Counsel for the appellant that the evidence of the 1st Respondent is hearsay. In the often cited case of the common law tradition of Subramanian V. Public Prosecutor (1956) 1 WLR 965 at 969, the Judicial Committee of the Privy Council held that evidence of a statement made to person by a person who is himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made. When a third party relates a story to another as proof of contents of a statement such a story is hearsay. Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. See Judicial Service Committee V. Omo (1990) 6 NWLR (Pt. 157) 407. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. See Utteh V. The State (1992) 2 NWLR (Pt. 223) 257. The word “hearsay” is used in various senses. Sometimes it means whatever a person declares on information given by someone else. The Evidence Act, Cap. 112, Laws of the Federation of Nigeria 1990, does not specifically use the expression “hearsay evidence” but the totality of Section 77 of the Act, by interpretation of the Courts, provides for hearsay evidence.

In most cases, hearsay evidence is to the following or like effect.
“I was told by XYZ that, or XYZ told me that, or I heard that XYZ told ABC that; or I made inquiries and I was told that”. See generally: Armel Transport Ltd. v. Madam Martins (1970) 1 ALL NLR 27; Adeka V. Vaatia (Pt. 48) 134; Management Enterprises Ltd. V. Otusanya(1987) 2 NWLR (Pt. 55) 179; Jolayemi V. Alaoye (2004) 5 SC. (Pt. 11) 112; (2004) 12 NWLR (Pt. 887) 322.

Learned counsel asked what then makes the evidence PWI, hearsay? He told the Court under oath that he is a civil servant, and son of the Plaintiff/Appellant, and that everything he told the Court was as was related to him by his father. He made the statements to establish the fact that his father had liquidated his indebtedness to the Defendant/Respondent and therefore it is hearsay and inadmissible in accordance with the law.

Appellant appears to be laboring under the misapprehension of the sacred duty of the trial in evaluating evidence and ascribing probative value to same. The Court does not share that responsibility with anyone least of all, parties to the suit.

This Court in Odogwu V. Ilombu (2007) 8 NWLR (Pt. 1037) 488 at 501 – 509 paras H; A – D per Gumel, JCA; while emphasizing the role of the trial Court in evaluation of evidence and ascribing of probative values held as follows:-
“I went to this great length to show the steps taken by the learned trial Judge to arrive at his decision to grant the declaratory reliefs sought by the Plaintiff/1st Respondent. I have no doubt that the learned trial Judge did a very good and impeccable job.
With respect to the facts and circumstances of this case and the 2nd and 4th issues formulated by the appellants, the task before this Court, as a primary role is to seek to know the evidence before the lower Court and also find out whether it accepted or rejected any evidence upon the correct perception. It is also necessary for this Court to find out and know whether the trial Court correctly approached the assessment of the evidence before it and placed the right probative value on it and also whether it used the imaginary scale of justice to weigh the evidence on either side. See Egonu V. Egonu (1978) 11 -12 SC. 111.
It should also be the attitude of an appellate Court in respect of evaluation of evidence of a trial Court to see whether the lower Court appreciated upon the preponderance of evidence which side of the scale weighed having regard to the burden of proof.
A proper evaluation of evidence involves a conscious and essential focus on making proper finding and reaching the correct judgment upon established facts before the Court. In the instant case, the learned trial Judge cannot be faulted in his impeccable review, analysis and general evaluation of the evidence on the issue of revocation of right of occupancy. He did a very thorough going and painstaking exercise. The learned trial Judge did not speculate on the evidence on the service of notice of revocation. He went into his record to gather what witnesses said upon the pleadings of the parties”.

In the instant appeal, the learned trial Judge also did a thorough and painstaking exercise of going through the documents dumped on the Court by the Plaintiff/Appellant, especially PWI, even when those documents were tendered through a witness who had no personal knowledge of the matters dealt with in the documents tendered in evidence. Section 83 (1) of Evidence Act, 2011 provides as follows:-
83 (1):-
“In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document, and tending to establish that fact shall on production of the original document be admissible as evidence of that fact if the following conditions are satisfied.
a) If the maker of the statement either.
i. had personal knowledge of the matters dealt with by the statement, or
ii. …
b) If the maker of the statement is called as witness in the proceedings: provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead; or unfit by reason of his bodily or mental condition to attend as a witness or if he is beyond the seas and it is not reasonable practicable to secure the attendance, or if all reasonable efforts to find him have been without success”.

It is evident by the admission of PW1, that his entire evidence before the trial Court including his Witness Statement on Oath which he adopted before the Court, and all the documents tendered in evidence through him are contrary to the provision of Section 83 (1) (a) (i) of the Evidence Act, 2011, and are therefore inadmissible, and the trial Court was right and does not require the address of parties to discountenance such evidence.

It is settled law that the issue of admissibility of any documentary evidence is governed by the principle as to whether or not the document is pleaded by the party or parties to the proceedings; whether it is relevant to the subject matter of inquiry by the Court or Tribunal and whether it is admissible in law. See Okoye & Anor V. Obiaso & 3 Ors.(2010) 3 se. (Pt. 11) 69 at 92 para 5.

In the instant case, all the documents tendered in evidence through PWI, including his witness Statement on oath are inadmissible in law on the authority of Okoye & anor V. Obiaso & 3 Ors (supra). This Court is to so hold, and resolve this issue in favour of the Respondent.

ISSUE THREE:
“Was the trial Court right in granting the Counterclaim of the Respondent:-
Respondent’s counsel on Issue 3 submitted that, the trial Court was correct in granting the counterclaim of the Respondent. This is because the Plaintiff/Appellant’s claim that, he has liquidated all the facilities obtained from the Respondent could not be proved as provided under the law.

The Plaintiff/Appellant in his statement of claim admitted having received the various sums in issue, but insisted he had liquidated the sums. Having admitted his indebtedness, the only issue arising between the parties is the Plaintiff/Appellant’s claim that he had liquidated the sums borrowed. He has the burden to prove that he has liquidated the various sums borrowed on the preponderance of evidence, before the burden of proving indebtedness could shift to the Respondent.

Sections 131 – 134 of the Evidence Act, 2011 provides for the burden and standard of proof in civil cases. The Defendant/Respondent has denied that the various sums in issue had been liquidated by the Appellant, hence the counterclaim of the Respondent for the Court’s order for the money owed to be paid. Where common questions determinative of a claim and a counterclaim arise in a case, the trial Court is not expected to consider the same questions separately in relation to the counterclaim. In this case, the essential evidence and issues needed to determine the counterclaim had already been well articulated by the learned trial Judge in determining the Appellant’s claim. SeeA. G. Kwara State V. Ojulari (2007) 1 NWLR (Pt. 1016) 551 at 580 – 581 paras F – N; A-D.

Further on the burden of proof in a counterclaim, where the outcome is hinged on, or interwoven with the main suit, the Supreme Court, per Oguntade, JSC in Adedeji V. Oloso (2007) 5 NWLR (Pt. 1026) 133 at 165 paras A-H expounded the law in great details thus;
“Now, in George Onobruchere & Anor V. Esegine & Anor (1986) 2 SC. 385 at pp. 397 – 398; (1986) 1 NWLR (Pt. 19) 799 at page 806, this Court per Oputa, JSC restated the principles guiding the Court in deciding the party that bears the onus or burden of proof in a civil case. The Court said;
“An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the Plaintiff’s claim is admitted, that will be the end of the story. Similarly, if a particular averment of the Plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore, to discover where the onus lies in any given case, the Court has to look critically at the pleadings where for instance the Plaintiff pleads possession of the land in dispute as his root of title and the Defendant admits that possession but adds that the land was given to the Plaintiff on pledge, then the onus shifts onto the Defendant to prove that the Plaintiff is not the owner of the land his possession of which had been admitted. Once the Defendant admits the Plaintiff’s possession of the land in dispute in his statement of defence, then and there, the Plaintiff has on the pleadings discharged the onus of proof cast on him and Section 145 of the Evidence Act, Cap. 62 of 1958, will impose a burden on the Defendant to prove the negative – namely that the Plaintiff is not the owner. See Lawrence Onyekaonwu & Ors V. Ekwubiri (1966) 1 ALL NLR 32 at P. 35. In such a case, it is the Defendant who will begin and if at the close of his case, he fails to prove that the Plaintiff is not the owner, the Plaintiff’s claim succeeds without even the Plaintiff giving any further evidence”.

In the instant case, the Defendant to the counterclaim, in his defense to the counterclaim at pages 191 -192 of the Record of Appeal, admitted owing the counterclaimant. The burden of proof is on him to prove that he had liquidated the sums owed to the counterclaimant. The trial Court found that he had not discharged this burden to warrant the burden shifting to the counterclaimant. (See paragraphs 2, 3 and 4 of the Appellant’s Defence to counterclaim on page 192 of the Record).

The granting of the counterclaim of the Respondent flows from the findings of the trial Court that, the Appellant had failed woefully to prove that, it had liquidated the sums borrowed from the Respondent/Counter Claimant. The Appellant tendered Exhibits D, and D1, which are the statement of accounts he operates. These are the accounts which balance accumulated over the years and amounted to the sum of the counterclaim. See Section 167 (c) of the Evidence Act, 2011 on the common course of business been followed in particular cases.

The Argument of the Appellant should therefore be discountenanced taking into consideration his statement of claim and his defense to the counterclaim.

Delivering judgment in the case of Owoniboys V. Union Bank Ltd (2003) 7 SC. 165 at 191 – 192 paras 30 – 40; 5 which is on all fours with the present case, Uwaifo, JSC, while concurring with the lead judgment of Ejiwumi, JSC, held thus:
“An aspect of the argument of the appellant is that since the respondent did not counterclaim, “it is a moot point whether it can exercise a right of sale or not as an unpaid Mortgagee”.

The argument then went further as to the conditions to be fulfilled before power of sale can be exercised as contained in clause 6 of Exhibit 4 which conditions include proof of the indebtedness of the Mortgagee for payment and failure of the Mortgagor to pay within one month of the letter of demand. I think the argument has to be considered on the basis of what was placed before the two Courts below for a decision, and what they actually decided. The claim on the point by the Appellant was for a declaration that the Respondent is not entitled to sell any property of the Appellant without complying with the land Use Act and the Auctioneers law applicable to Kwara State.

The trial Court made the declaration sought for on the grand that it was not proved that the Appellant was owing the Respondent. The Court of Appeal found that conclusion to be wrong. Consequently, it expressed the view that the Respondent is entitled to exercise its power of sale. That of course implies that this may be done upon compliance with all necessary conditions. I do not think the said view can only be expressed upon a counterclaim by the Respondent. It flows from the consequences of the dismissal of the said claim of the Appellant …”

Learned counsel submitted that, the Respondent has counterclaimed as a Mortgagee entitled to recover its Mortgage. The Appellant’s claim that it had liquidated the sums borrowed from the Respondent could not be proved, hence the trial Court was right to have dismissed the Appellant’s claim, which dismissal flowed from the non-proof of liquidation of borrowed sums and granted the counterclaim of the Respondent. This Court is urged to so hold and resolve this issue in favour of the Respondent.

In conclusion, the learned counsel submitted that Plaintiff/Appellant sought declaratory reliefs from the trial Court and an order of Court that Defendant/Respondent surrender his title documents used as collateral for various banking facilities availed him by the Defendant/Respondent.

It is trite that declaratory reliefs are discretionary and are not granted even on the admission of parties. A party seeking declaratory reliefs must prove through credible evidence that he is entitled to the reliefs sought and where he fails, his claims must fail. In the instant case, the Appellant failed woefully in proving that he had liquidated the sums enjoyed from the Respondent as he claimed. The consequence of his failure to prove through credible evidence that he had liquidated the sums borrowed from the Respondent is the dismissal of his claim, and the granting of the counterclaim of the Respondent as that flows from the dismissal.

Having failed to prove his claims, the trial Court was right to have dismissed his suit and to have granted the relief of the Respondent.

Learned counsel therefore urged this Court to dismiss this appeal with substantial costs for lacking in merit, and affirm the judgment of the lower Court for being impeccable and painstaking.

RESOLUTION
The Court below dismissed the claim of the Appellant in view of the fact that the Appellant has not proved his case against the Respondent. Appellant’s PW1, admitted during cross-examination that the evidence he gave was all hearsay as he was told by his father PW2. find for the Appellant. The Court held that it could not find where the Appellant proved to upset his debt in the entire evidence he presented before the Court.

The case of the parties is that the Appellant was granted a bank guarantee in the year 2009, in favour of Ashaka cement. In June, 2010, when Ashaka Cement called up the balance of the unpaid guarantee, the Respondent paid. The Appellant accessed a loan facility of Ten Million Naira (10,000,000) from the Respondent. The total amount outstanding claimed from Appellant by Respondent is N72,847,291. 07.

The contention of the Appellant is that he had sufficiently discharged the burden placed on him for the reliefs he sought from the Court. The Appellant was owing the Respondent for banking facilities granted to him. From the evidence before the Court, was it established that the Appellant was indebted to the Respondent? The Appellant tendered relevant documents to prove the existence of the banking transactions between him and the Respondent. When the debt became due to be repaid, the Respondent paid the outstanding amount to Ashaka Cement.

The usual way of proving a bank debt is by putting in the statement of account or secondary evidence where it is admissible, see OCEANIC BANK INTERNATIONAL PLC V BROKENN AGRO ALLIED INDUSTRIES (2008) LPELR-4671 (CA). This was done by the Appellant while the Respondents denied the debt. Courts have settled the principles on denial of indebtedness.

The law is such that a mere denial of indebtedness will not suffice. The defence is expected to fully justify why he is not indebted after evidence of enjoying a facility as in this case.

There are 4 acknowledged ways of answering to the allegations of indebtedness and these are:
i. To admit the debt
ii. To deny the debt
iii. To counterclaim against the debt
iv. To set off against the debt, see AIR VIA LTD V ORIENTAL AIRLINES (LTD) (2004) 9 NWLR (PT.878) 298.

Furthermore, bare denial of liability cannot amount to a reasonable defence in a claim for a debt which is admitted. The burden shifts on the defendant to show how the debt has been liquidated, see BIOSOLA NIGERIA LTD V MAINSTREET BANK LIMITED (2013) LPELR-22062 (CA); OKOLI V MORECAB FINANCE (NIG) (2007) 14 NWLR (PT.1053) 37 which held that once a defendant admits the indebtedness or receipt of the loan, the burden as to repayment or as to the reasons for nonpayment, is on the defendant. Once a debt is admitted, it must be given effect regardless of any excuse or technicality thrown in to derail the process.
The position of law is settled that the burden is on a debtor to show that he has paid off the amount against him if he denies indebtedness. Mere denial of indebtedness is untenable in law, a defendant must state why he is not indebted in full or in part, see SANUSI BROTHERS (NIGERIA) LTD V COTIA C.E.I.S.A. (2000) 11 NWLR (PT. 679) 566.

The Plaintiff/Appellant in a bid to prove that he has liquidated the sums owed the Defendant/Respondent, tendered in evidence exhibits A – A21 and B – B9. The trial Court while evaluating the evidence of the Plaintiff/Appellant noticed that deposit slips A12 – A21 respectively were all paid before the expiration of the 12 month guarantee period which ought to be from June 2010, the Bank Guarantee having been granted the Plaintiff on the 28th May, 2009. The Plaintiff/Appellant (PW2) under cross-examination at page 282, of the Record of Appeal, admitted that he had been enjoying Bank Guarantee from the Defendant since 2001, and was sometimes paying up the guaranteed sum within two (2) months, until the Bank Guarantee of 2009, which he was unable to pay at the end of the guaranteed period.

In the same vein, the Plaintiff/Appellant in trying to prove that he had liquidated the N10 Million loan he took from the Defendant in April, 2011 tendered exhibits B – B9 series, where the trial Court while evaluating the evidence discovered that exhibits B, B13 as well as B6 were exhibiting payments made before the loan was even granted. It is settled law, that evaluation of evidence is the primary responsibility of the trial Court. Once there is proper evaluation of evidence by a lower Court, an appellate Court has no business interfering unless the decision is perverse, and has occasioned a miscarriage of justice. See FBN V. OZOKWERE (2013) 12 se. (Pt. 111) 63 at 100 paragraph 20. In the instant case, l am of the considered view that, the trial Court carried out a thorough evaluation of the evidence adduced hence his decision was not perverse.

As earlier stated, proof of payment of indebtedness cannot be done by a mere denial of the debt. In this case, the Appellant failed to tender any bank tellers or any other documents showing that his debt has been paid. In the case of SALEH v BANK OF THE NORTH LTD (2006) 2-3 SC 1, the Apex Court held thus:
In a situation such as this, where the Appellant claimed to have repaid the loan overdraft against the statements of accounts tendered by the Respondent bank showing nonpayment by the Appellant the proof of payment by the mere ‘ipsi dixit’ of the Appellant cannot be sufficient proof of payment of the debt. See DEBS V CENICO (NIG) LTD (1985) 6 SC 176, (1986) 3 NWLR (PT.32) 846. The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgment showing on the face of it that the bank has received the payment.

The Appellant also argued that DW1’s testimony is based on hearsay evidence and ought not to be relied upon. The mere fact that the witness was not yet a bank staff when the Appellant’s bank account was opened, or when the loan facility was awarded is not sufficient to prevent the witness from testifying, or giving evidence on the Appellant’s account. The Appellant is a customer of the Respondent, a juristic person, and any agent of the Respondent can give evidence to establish any transaction entered into by the Appellant. See SALEH V BANK OF THE NORTH LTD (supra).

The standard of proof in civil cases is on the preponderance of evidence, and not proof beyond reasonable doubt as in criminal cases. After placing the totality of the respective evidence adduced by the parties on an imaginary scale of justice, the Court is expected to give judgment on the side’s evidence which weighs heavier, however slight the edge may be, and in this case, the weight tilts in favour of the Respondent. See UWAH & ANOR V AKPABIO & ANOR (2014) LPELR – 22311 (SC). Also, the Appellant did not establish his pleadings by evidence, neither did the evidence elicited from PW1, during cross-examination establish any fact in their pleadings, because he admitted that the evidence is hearsay before the Court. The Appellant therefore has nothing to rely on in proof of his case.
Under the provisions of Section 51 of the Evidence Act, 2011 entries in books of accounts kept regularly in the course of business, such as statements of accounts, shall not alone be sufficient evidence to charge any person with liability.
Consequently, even where statements of account/s kept by banks in respect of customers’ accounts, are put in evidence in a claim for repayment of debt owed by the customer, there must be satisfactory and sufficient evidence to demonstrate and prove how the entries therein were arrived at in order to ground charging the customer with liability on the claims. See: Wema Bank Plc. vs. Osilaru (2012) 1 BFLR 693 AT 712, Yusuf v. ACB (1986) 1-2 SC 149, Habib Nigeria Bank Limited v. Gifts Unique Nigeria Limited (2004) 15 NWLR (896) 408.
The Respondent adduced sufficient evidence in proof of the entries in the Appellant’s statement of account showing indebtedness.
On the balance of probabilities, the evidence adduced by the Respondent has established that the Appellant owes a debt which it has admitted, and so the burden of proof shifted to the Appellant to adduce satisfactory evidence that he has paid back the debt owed to the Respondent. The law is that the burden of proof in civil cases is not static and may shift in the course of trial and depends at any stage, on the state of the pleadings and evidence adduced NBN Limited vs. S.C.D.C. Limited (1998) 5 NWLR (548) 144 AT 154, Ebong vs. Ikpe (2002) 17 NWLR (797) 504, Apatira vs. Lagos Island Local Government Council (2006) ALL FWLR (328) 755, Adighije vs. Nwaogu (2010) 12 NWLR (1209) 419, Section 136 of the Evidence Act, 2011.

In addition, the Appellant did not adduce evidence at all to prove the facts in their statement of defence because the evidence elicited during the cross-examination of the Appellant’s witness did not show that they have paid the debt owed to the Respondent, or disproved that they owe the debt claimed from them by the Respondent in their pleadings and evidence. In such a situation, minimum evidence in proof is required from the Respondent to prove their case on the balance of probabilities since its evidence preponderates in its favour in the case.A.I.E.E.G.S. vs. Eke-Spiff (2009) 2 MJSC (Pt.II) 61. Unical vs. Ephraim (1993) 1 NWLR (271) 557, Egbunike vs. ACB Limited (1995) 2 SCNJ, 58 AT 78.

Undoubtedly, the Respondent has proved its case against the Appellant by the evidence placed before the Court and so discharged the minimum burden of proof placed on it by the law in the circumstances of the case.

In the case of Afri Bank vs. Alade (2000) 13 NWLR (685) 591, it was held that a debtor who benefited from a loan or overdraft from a bank has both the moral and legal duty and obligation, express or implied, to repay it as and when due. See also National Bank of Nigeria vs. Shoyoye (1977) 5 SC. 181.

Since the Appellant did not dispute benefitting from the facility granted to them by the Respondent and did not make or prove that they have fully repaid the facility as and when due, they owe both the legal and moral obligation and duty to repay or pay what they owe the Respondent as proved by the unchallenged and satisfactory evidence adduced and placed before the Court.

Having considered the fact established that, the Appellant admitted indebtedness, and did not show how he liquidated same, the claim having not been proven that it had been liquidated, it warrants a dismissal. I am also of the view that the Respondent had adduced sufficient evidence, explaining the entries arrived at in the Appellant’s statement of account to show how the overall debit balance was arrived at.

Consequently, I find that this appeal is unmeritorious and is hereby dismissed. The judgment of the lower Court delivered on the 11th day of December, 2020 per Hon. Justice A. M. Anka is hereby affirmed with Costs of N200,000.00 against the Respondent.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading the draft copy of the lead judgment just delivered by my learned brother FATIMA OMORO AKINBAMI, JCA. I am in agreement with the decision of my learned brother that the appeal is devoid of merit and should be dismissed. It is hereby dismissed by me with nothing further to add.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered by my learned brother, FATIMA OMORO AKINBAMI, JCA.

I agreed with his Lordship’s reason and conclusions to dismiss the appeal for is unmeritorious, and I hereby dismiss the appeal and abide by the order as to costs.