Keystone Bank Limited -VS- Mr. Omanukwue Onyekwelu Teddy

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 16th December 2019 SUIT NO. NICN/LA/350/2016

BETWEEN

KEYSTONE BANK LTD. CLAIMANT

AND

OMANUKWUE ONYEKWELU TEDDY DEFENDANT

JUDGMENT

The Claimant commenced this suit by complaint and accompanying processes dated 24th May 2016 and by its amended statement of facts dated and filed on 20th February 2019 claimed against the Defendant as follows:

The sum of N3, 468, 489.35 [three million, four hundred and sixty-eight thousand, four hundred and eighty-nine naira, thirty-five kobo] only being the total sum due and payable to the Claimant by the Defendant as at 31st March 2016 as a result of the various loan facilities which the Claimant granted to the Defendant when the Defendant was in the employment of the Claimant but which the Defendant have [sic] refused, failed and/or neglected to pay back for the said various loan facilities till date despite having utilized same.

Interest on the amount claimed in [1] above i.e. N3, 468, 489.35 at the rate of 19% per annum from 1st April 2016 until judgment and thereafter at the same rate until final liquidation of the entire debt.

Cost of prosecuting this action to be borne by the Defendant.

The originating processes were served on the Defendant in accordance with the Rules of this Court on 23rd June 2016. The Defendant did not file any statement of defence and did not take part in the trial in spite of service of hearing notices on him. Trial commenced on 6th November 2019. The Claimant’s witness, Mr. Habib Shittu of the Asset Remedial Management Department, adopted his statement on oath dated 25th March 2019 as his evidence in the suit and tendered 7 documents, which were marked as exhibits 1 to 7. On application by learned counsel for the Claimant, Chief Okonkwo, the Defendant was foreclosed from cross-examining the Claimant’s witness pursuant to Order 38 rule 2[1] of National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and the case was adjourned to 21st November 2019 for defence or adoption of final written addresses. The Defendant was absent on 21st November 2019 and, on application by learned counsel for the Claimant was foreclosed from presenting his defence. The Claimant was thereafter granted leave to adopt its final written address dated 18th November 2019. The matter was consequently set down for judgment.

In his final written address, learned counsel for the Claimant, Chief Okonkwo, formulated one issue for determination to wit:

“Whether the Claimant has proved its case to be entitled to the reliefs sought before this Honourable Court?”

Chief Okonkwo returned an affirmative answer and explained that the sole issue for determination would be addressed under 4 sub-heads, viz:

Did the Claimant grant a loan facility to the Defendant?

Has the loan or debt been paid back?

What is the total outstanding indebtedness of the Defendant to the Claimant?

Are Banks not entitled to charge interest on loans they give out to their customers?

On the first sub-issue learned counsel referred to pages 2 and 6 of exhibit 1 and paragraphs 8 and 9 of the Claimant’s witness’ statement on oath and explained that the Defendant was granted facilities in the sum of N226, 000 and N800, 000 on 6th May 2008 and 25th February 2009 respectively. He submitted that this evidence was not challenged in any way by the Defendant and the law is trite that where evidence is unchallenged the Court ought to accept it in proof of the issue in contest. He referred to the case of Folorunsho v. Shaloub [1994] 3 NWLR [pt.333] 413 and urged the Court to so hold.

He answered the second sub-issue in the negative and urged the Court to so hold. On the third sub-issue, he referred to the last page of exhibit 1 and explained that the Defendant’s outstanding indebtedness is N3, 468, 489.35 only as at 31st March 2016. He argued that exhibit 1 was not challenged nor denied in any way and urged the Court on authority of Nacenn Nigeria Limited v. Bewac Automative Producers Limited [2011] All FWLR [pt. 585] 280 at 292 to accept it as true and act on it.

On whether Banks are entitled to charge interest on loans they give out to their customers, he submitted that the Claimant is a commercial bank and the law allows commercial banks to charge interest on loans to customers or staff. He referred to a plethora of cases including the case of Union Bank of Nigeria Ltd. v. Mr. James Olusola Ayoola [1998] 11 NWLR [pt.573] 338 at 344 and submitted that banks are allowed to charge interest even where there is no express agreement to that effect and urged the Court to so hold. Learned counsel argued that the Defendant did not controvert the evidence of Claimant’s witness as contained in exhibit 1 which contains interest and charges; and that the law is well settled on the effect of unchallenged statement of account bearing interest. He referred to the case of Paul Aforka v. African Continental Bank Nig. Ltd. [1994] 3 NWLR [pt.331] 217 at 225. He urged the Court to enter judgment in favour of the Claimant.

I will adopt the issue for determination formulated by learned counsel for the Claimant which is “whether the Claimant has proved its case to be entitled to the reliefs sought before this Honourable Court?” The law is trite that he who asserts must prove. See section 131 of the Evidence Act, 2011 and the case of Nduul v. Wayo & Ors. [2018] 7 SC [pt.111] 164 at 212. Thus, the onus is on the Claimant to establish through its pleading and evidence its entitlement to judgment on the claims.

While it is true that the failure of the Defendant to adduce evidence makes the Claimant’s evidence unchallenged and liable to be accepted and acted upon by the Court; yet that does not automatically entitle the Claimant to judgment. See the case of Elewa & Ors. v. Guffanti Nigeria Plc [2017] 2 NWLR [pt.1549] 233 at 248 para. C. The evidence presented by the Claimant must on its own justify the grant of the reliefs sought. Where the evidence presented by the Claimant cannot sustain its claims, it is bound to fail notwithstanding the absence of defence. See Erinfolami v. Oso [2011] LPELR-15357[CA] at page 18.

This case is for recovery of ex-staff loans. In proof thereof, the Claimant’s witness, in his evidence in chief, testified that the Defendant was an employee of Platinum Habib Bank Plc which assets and liabilities were acquired by the Claimant on 5th August 2011 and the transaction is covered by Nigeria Deposit Insurance Corporation letter of that date. The letter was admitted in evidence and marked as exhibit 7. He stated that the Defendant was employed on 24th July 2007 which employment was terminated on 30th November 2009. The letters of employment and termination of employment were received in evidence and marked as exhibits 5 and 6 respectively. He also stated that while in the employment of the Claimant, the Defendant maintained a current account no. 001103001343 which was subsequently changed under the CBN NUBAN policy to 1000183036; and obtained two facilities on 6th May 2008 and 25th February 2009 in the sums of N226, 600 and N800, 000 respectively. He averred that the Defendant fully enjoyed these facilities but refused, failed and/or neglected to fully liquidate it in spite of several demands by the Claimant and its Solicitors. The Defendant’s statement of account, certificate pursuant to section 84[1] of the Evidence Act, 2011 and demand letters by the Claimant and its Solicitors were admitted in evidence and marked as exhibits 1, 2, 3 and 4 respectively. The witness further stated that when the Defendant’s account was classified, his total indebtedness was N3, 468, 489.35 as at 31st March 2016; wherefore the Claimant claims as per its amended statement of facts dated 20th February 2019.

In proof of the loans, the Claimant relied on entries at pages 2 and 6 of exhibit 1 for the sums of N226, 600 and N800, 000 on 6th May 2008 and 25th February 2009 respectively. I have carefully perused exhibit 1 and I find as a fact that the sums of N226, 600 and N800, 000 were credited to the Defendant’s account on 6th May 2008 and 25th February 2009 respectively as loans. I also find as a fact that various debit entries were posted to the account in repayment of the principal and interests until termination of the Defendant’s employment in November 2009. The account subsequently went into debit and as at 31st March 2016 the closing debit balance was N3, 468, 489.35 although the applicable rate of interest was not specified in exhibit 1 or the Claimant’s witness’ statement on oath. For this reason, I agree with the submissions of Chief Okonkwo on sub-issues 1 to 3 and hold that the evidence of the Claimant’s witness on the Defendant’s indebtedness to the Claimant in the sum of N3, 468, 489.35 as at 31st March 2016 is credible and has not been challenged in any way. This Court is therefore bound to act on it. See the cases of Inspector James Abah & Ors. v. Jabusco [Nigeria] Ltd. [2007] LPELR-4325[CA] at pages 43-44 and Godfrey Ifediora & Ors. v. Eugene Okafor & Ors. [2019] 16 NWLR [pt. 1698] 322 at 336.

This leads me to a consideration of the Claimant’s reliefs. Relief one is for the sum of N3, 468, 489.35 [three million, four hundred and sixty-eight thousand, four hundred and eighty-nine naira, thirty-five kobo] only being the total sum due and payable to the Claimant by the Defendant as at 31st March 2016 as a result of the various loan facilities which the Claimant granted to the Defendant when the Defendant was in the employment of the Claimant but which the Defendant have [sic] refused, failed and/or neglected to pay back for the said various loan facilities till date despite having utilized same. There is unchallenged evidence of the Defendant’s indebtedness to the Claimant in the sum of N3, 468, 489.35 as at 31st March 2016. This Court is bound to accept and act on this piece of evidence. See the case of Godfrey Ifediora & Ors. v. Eugene Okafor & Ors. [supra], where Okoro, J.S.C. held:

“The law is trite that unchallenged evidence, if believed, ought to be acted upon.”

Accordingly, I find relief one proved.

Relief two is for interest on the sum of N3, 468, 489.35 at the rate of 19% per annum from 1st April 2016 until judgment and thereafter at the same rate until final liquidation of the entire debt. I have found earlier in this judgment that the applicable rate of interest was not specified in exhibit 1 or the Claimant’s witness’ statement on oath. While it is true that the Claimant is a commercial bank and as such entitled to charge interest on facilities granted to its customers, the claim before this Court is not strictly one of banker and customer; but a claim for recovery of ex-staff loans. The law on award of pre-judgment interest is well settled and for emphasis interest may be awarded in two distinct circumstances, namely: as of right and where there is a power conferred by statute to do so in the exercise of the court’s discretion. Interest may be claimed as of right where it is contemplated by the agreement between the parties, under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship. Where interest is claimed as a matter of right, the proper practice is to claim entitlement to it in the originating process and plead facts which show such entitlement. See Interdrill Nigeria Ltd. & Anor. v. United Bank for Africa Plc [2017] 13 NWLR [pt.1581] 52 at 72-73. Although interest was claimed in the complaint and amended statement of facts, there are no facts in support of the claim for interest in the amended statement of facts and the statement on oath of the Claimant’s witness. Consequently, the submission of Chief Okonkwo in paragraph 5.1.4.2 of the Claimant’s final written address is not supported by evidence and goes to no issue. It is trite law that address of counsel is supposed to deal only with the evidence before the Court. See Onwuchekwa & Anor. v. Onwuegbu & Ors. [2013] LPELR-20653[CA] at page 30. The custom or practice which entitles banks to interest on ex-staff loans was neither pleaded nor proved and it is not the practice of the Court to speculate on the applicable rate of interest. In the words of Owoade, J.C.A., in Iwayemi & Anor. v. Akinbo [2016] LPELR-40136[CA] at pages 22-23

“… law is not a game of wizardry. It is not and has never been the function of a Court of law by its own ingenuity or exercise to imagine, speculate on or to supply evidence to work out the mathematics of arriving at an answer in a case which only evidence tested under cross examination can supply.”

In the light of the above, I find and hold that the Claimant has not proved the claim for pre-judgment interest. However, this Court is empowered by Order 47 rule 7, National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, to award post-judgment interest at a rate not less than 10% per annum.

Relief 3 is a claim for cost of the action. Generally, cost follows events and a successful party is entitled to his cost. By Order 55 rule 1 of the Rules of this Court, award of costs is subject to the discretion of the Court, which discretion, in all circumstances, must be exercised judicially and judiciously. Costs are not meant to be a bonus to the successful party or serve as punishment against the losing party. It cannot also cure all the financial losses sustained in litigation and the winning party has a duty to mitigate his losses. The main aim of cost is to indemnify the successful party for his out of pocket expenses and be compensated for the true and fair expenses of the litigation taking the facts of each case into consideration. See Citibank Nigeria Limited v. Mr. Martins Ikediashi [2014] LPELR-22447[CA] at page 43.

Some of the factors to consider in awarding cost are filing fees paid, duration of the case, number of witnesses called by the party in victory, the vexatious nature of the action, cost of legal representation, monetary value at the time of incurring the expenses et cetera. See Master Holding [Nig.] Limited & Anor. v. Emeka Okefiena [2010] LPELR-8637[CA] at pages 34-35. From the Court’s record, the sum of N9, 670 was spent as filing fees, learned counsel for the Claimant appeared in Court about 7 times. In the circumstance, cost of N50, 000 is awarded in favour of the Claimant against the Defendant.

On the whole, this case succeeds in part. Judgment is entered in favour of the Claimant against the Defendant as follows:

The sum of N3, 468, 489.35 being the Defendant’s indebtedness to the Claimant on the facilities granted to him on 6th May 2008 and 25th February 2009 respectively. This sum shall bear interest at the rate of 10% per annum from the date of this judgment until it is fully liquidated.