LUMATRON NIGERIA LIMITED & ANOR v. FIRST CITY MONUMENT BANK PLC (2013)

LUMATRON NIGERIA LIMITED & ANOR v. FIRST CITY MONUMENT BANK PLC

(2013)LCN/6111(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 14th day of December, 2016

CA/L/860/2013

RATIO

JUDGMENT: JUDGMENT OF A COURT MUST BE LIMITED TO ISSUES RAISED, PLACED AND CANVASSED BY THE PARTIES

The law is known that the judgment of a Court of law must be confined to the determination of the issues raised, placed and canvassed by the parties before the Court in their pleading and evidence and on what was properly claimed by them in a case.Kuti v. A.G. of the Federation (2001) FWLR (1980) 1637; F.B.N. Plc v. Olaleye (2013) 1 NWLR (Pt. 1334) 102; Ogunyade v. Oshunkeye (2007) 15 NWLR (1057) 218: Odunkwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339.PER MOHAMMED LAWAL GARBA, J.C.A.

COURT: THE COURT CANNOT GRANT A PARTY MORE THAN ITS CLAIM OR ANOTHER CLAIM

Another elementary principle of law, which I have stated earlier, is that a Court has no power to grant to a party either more than or what he did not claim in the case presented before it, not being father Christmas or an institution for charity. See, in addition to the cases cited on the principle earlier; Odukwe v. Ogunbiyi (supra); Onu v. Agu (1996) 5 NWLR (Pt. 457) 652; Ojah v. Ogboni (1996) 6 NWLR (Pt. 454) 212; Oduwole v. West (2010) 10 NWLR (1203) 598: Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450.PER MOHAMMED LAWAL GARBA, J.C.A.

CIVIL LITIGATION: BURDEN OF PROOF MAY SHIFT IN CIVIL MATTERS

I should state, as a foundation, that the law is firmly settled that unlike in criminal allegations where the burden of proof is permanently fixed on the prosecution to prove the guilt of an accused person beyond reasonable doubt through out the trial, in civil proceedings, though the initial burden of introducing evidence to prove an assertion is on the party who asserts either positively or in the negative, the general burden of proving facts may depend on the state of the parties’ pleadings at any stage of the trial and so may shift in the course of proceedings. Elemo v. Omolade (1968) NWLR 359; Osawaru v. Ezeiruka (1978) 6-7 SC 135 @ 145; Ogbu v. Okoma (2005) 7 SC (Pt. 11) 123; Buhari v. Obasanjo (2005) 7 SC (Pt. 1); Apatira v. Lagos Island Local Government Council (2006) All FWLR (Pt. 328) 755; Adighije v. Nwaogu (2010) 12 NWLR (1209) 419.PER MOHAMMED LAWAL GARBA, J.C.A.

COUNTER CLAIM: A COUNTER CLAIM IS A SEPARATE AND INDEPENDENT CLAIM FOR THE PURPOSE OF PROOF FROM THE MAIN CLAIM
The law is also now common knowledge that a counter claim is a separate distinct and independent claim for the purposes of proof, from the main claim in a case. A party to a case who counter claims in the case, is for the purposes of the counter claim, the Plaintiff as claimant while the party against whom the counter claim is made, is the Defendant.PER MOHAMMED LAWAL GARBA, J.C.A.

Between

1. LUMATRON NIGERIA LIMITED
2. MR. N. L. CHULANIAppellant(s)

AND

FIRST CITY MONUMENT BANK PLCRespondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): On the 26th of June, 2013, the High Court of Lagos State delivered judgment in the Respondent’s Suit No. LD/174/2004 in its favour and dismissed the Appellants’ Counter Claim for want of proof.

Being dissatisfied with the judgment, the Appellants brought this appeal by the Notice of Appeal dated the 12th, but filed on 16th of July, 2013, which was amended with the leave of the Court by the Amended Notice of Appeal filed on the 2nd of June, 2016.

As required by the Rules of the Court, briefs of argument were filed and exchanged by learned Counsel for the parties to the appeal as follows:-
(1) Appellants’ Amended brief was filed on 2nd of June, 2016.
(2) Respondent’s Brief was filed on 31st of August, 2016, deemed on the 20th of October, 2016.
(3) Appellants’ Reply brief was filed on 17th of October, 2016.

From the five (5) grounds of appeal, Mr. Olalokun Omolodun, Esq. who settled the Appellants’ brief, has submitted the following issues for determination:-
“A. Whether the trial Court was not in error when it relied Exhibit CW25, a

purported statement of account, to hold that the Respondent had proven its claims against the appellants (Ground 1);
B. Whether the lower Court was not in error when it failed to order the Respondent to render account for the Appellant’s stock of N27 Million sold by it as counter-claimed by the appellants (Ground 2);
C. Whether the lower Court was not in error when it awarded the Respondent the judgment sum of N10Million against the 2nd Appellant which was not claimed by the Respondent (Ground 3);
D. Upon the Respondent’s failure to render in evidence the notice revoking its foreign exchange license to prove its capacity to engage in foreign exchange transactions at the time of the 2 LC contracts, whether the trial Court did not err in law when it failed to enter judgment for the Appellants on their counterclaim alleging fraudulent misrepresentation regarding capacity to contract against the Respondent (Ground 4); and
E. Whether the decision of the lower Court is not against the weight of evidence (Ground 5)”

After arguing an objection to grounds of appeal 1 and 3 as well as Appellant’s issues 2 and 4, Mr. E. L. Chukwuma, of

counsel for the Respondent, argued his two (2) issues, indicated to have been distilled from the grounds 1, 3, 4 and 5 of the Amended Notice of Appeal.

For representing the specific complaints of dissatisfaction with the judgment of the High Court, I intend to consider the Appellants’ issues in the determination of the appeal since they have been addressed in the Respondent’s brief.

Before then however, as stated above, an objection called an objection on point of law, as a preliminary issue, was raised and argued in the Respondent’s brief. I would deal with it anon, in line with established practice.

The objection is that the grounds 1 and 3 are incompetent because they are on new issues not raised at the trial and filed without the requisite leave of Court. Issues 2 and 4 of the Appellants are said to be objectionable for want of leave of Court and should be discountenanced. Cases, including Guobadia v. The State (2004) All NLR 289 @ 292 and Oloruntoba v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83 were cited in support of the objection.

In the Appellant’s Reply brief, it was argued that the grounds and issues objected to arose

from the judgment of the High Court on issues raised before it and so are competent. That the objection has no factual basis and so the authorities cited for it are not relevant. The Court is urged to dismiss the objection.

I should point out before a consideration of the merit or otherwise of the objection, that the current position of the law on objection(s) to some grounds of an appeal leaving out other/s which is/are capable of sustaining the appeal, is that a motion on notice is separately filed to challenge the competence of such grounds and not to raise preliminary objection by way of notice of preliminary notice of objection or raising and arguing the objection in the Respondent’s brief of argument. The Notice of preliminary Objection or an objection can only properly be raised in the Respondent’s brief, against the hearing of an appeal and not against some grounds only. See: Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 134; Odunukwe v. Ofomata (2010) 8 NWLR (Pt. 1225) 404; N.N.D.C. v. Famfa Oil Limited (2012) 5-7 MJSC (Pt. 1) 1 @ 29. Notwithstanding that the Respondent’s objection does not comply with the above position of the law and the practice

and procedure in the Court, I would treat it on the merit.

I have read the judgment of the High Court in relation to the grounds of appeal 1 and 3 and it is clear that the grounds arose directly from the judgment, particularly at pages 492 and 496 of the Record of Appeal. In addition, issues 2 and 4 of the Appellant’s arise from the grounds 2 and 4 respectively, as indicated in the Appellant’s brief. Ground 2 is on the failure by the High Court to consider a material issue raised in the counter claim by the Appellants for the Respondent to render accounts of some stock sold by it. The failure could not have been raised as an issue at the trial before the judgment which gave rise to it. Issue 4, as stated above, arises from the ground of appeal 4 and both issues are, in the circumstances, competent in the appeal.

In the result, the objection is lacking in merit and is dismissed.

A brief on the facts leading to the case before the High Court would provide a good foundation for consideration of the submissions by learned counsel for the parties on the issues for determination. The Respondent granted the 1st Appellant credit facilities of

N30,000,000.00 for the importation of lighting and associated materials to be warehoused by the Respondent’s appointee/agent. The facility was guaranteed for N10,000,000.00 by the 2nd Appellant and eventually, some materials were imported, warehoused and sold as agreed by the parties. Because of disagreement on the position of the repayment of the facility between the Appellants and the Respondent, the Respondent sued for what it considered as the outstanding indebtedness of the Appellants who on their part, counter claimed against it.

I now turn to the issues

Issue 1: Appellant’s submissions:
It was submitted for the Appellants that the High Court should not have ascribed any probative value to Exhibit CW25; the statement of the Appellants’ account tendered by the Respondent, for the following reasons
(a)That the Exhibit was dumped on it because no evidence was adduced by the Respondent to link the Exhibit with the claim made. That the Respondent did not speak to the Exhibit. The Queen v. Wilcox (1961) All NLR 631 @ 634, Awuse v. Odili (2005) 16 NWLR (Pt. 952) 510 and Doukplolagha v. Alamieyesigha (1999) 6 NWLR (Pt. 607) 502 @ 513 were

cited for the submission.
(b)That the Exhibit was discredited at the trial by
(i) Failure by the Respondent to issue statement of the facility account to the Appellants and refusal to allow them access to the warehoused goods. Evidence of DW1, letter dated 26th of March, 2003 in Exhibit D9 and the letter dated 26th of February, 2003 in Exhibit D2 were referred to and it was argued that the Respondent’s failure to issue the statement of accounts to Appellants was breach of its legal regular duty to its customers, on the authority of Haston Nigeria Limited v. A.C.B. Nigeria Plc (2002) 12 NWLR (Pt. 782) 625 @ 645;
(ii) Proofs of partial satisfaction of the facility through Exhibits CW11 dated 1st of March, 2001, D10 at pages 325-7 of the Record of Appeal D9; a letter dated 25th of February, 2003, CW20 of 26th of February, 2003;
(iii) Exhibit D4A; a print out of statement of account of the facility sent to the Appellants by the letter dated 27th of March, 2003.

The Court is invited to presume that the above Exhibits show that there were repayment which the Respondent did not refute, under Section 149 of the Evidence Act and the

authority of inter alia, Abague v. Adikpa (1994) 1 NWLR (Pt. 322) 621 @ 628 and Gwani v. Ebule (1990) 5 NWLR (Pt. 149) 201 @ 217. The Respondent is said to be estopped by its conduct as provided in Section 157 of the Evidence Act and stated in the case of Odadhe v. Okugani (Pt. 1973) 11 SC 343 @ 353; 8 NSCC, 537 @ 542. Relying on Section 92(1) of the Evidence Act, 2004 (34 of 2011 Act), it was further contented that Exhibit CW25 should not have been ascribed probative value and that Exhibit CW21 shows that sales of the Appellants goods were made after Exhibit CW25 was made by the Respondent and which was not reflected therein thereby making the Exhibit CW25 not credible or cogent to attract any probative value. Lastly, it was submitted the High Court after relying on Exhibit CW25 to find that the outstanding sum to be N43,800,585, it awarded the Respondent the sum of N45,992,092.45 and that the judgment cannot be allowed to stand since Exhibit CW25 that has no probative value.

Respondent’s submissions:-
It was submitted that Exhibit CW25 was not dumped on the Court as it was frontloaded without objection from the Appellants who also cross-examined

CW3 through who it was tendered in evidence. That the Appellants did not react to the Respondent’s notice to produce the monthly statements of account sent to them, in 2nd Amended statement of claim dated the 11th of July, 2012, at paragraph 12 but rather dumped the 1st Appellant’s statement of account from Access Bank Plc, Exhibit D9, on the Court without disclosing its purport. It was contention of counsel that the Appellants did not proffer any challenge or evidence to discredit Exhibit CW25 and so the High Court was right to have relied on it as proof of the debt owed the Respondent by the Appellants as stated in the case relied on by it. The case of Yesufu v. A.C.B. Limited (1976) 4 SC, 1 @ 4, (1976) 10 NSCC 202 was cited in addition, on the submission and it was argued that the case of Queen v. Wilcox (supra) cited by the Appellants rather than support, negates their case. According to counsel, CW3 had demonstrated how the entries on Exhibit CW25 were produced in satisfaction of Section 90(e)(iii) and (iv) of the Evidence Act, 2011, citing Awuse v. Odili (supra) and other cases on the principle of dumping document on the Court which are said to be

distinguishable from CW25 because they were election matters. That the purpose of Exhibit CW25 was to show the history of the Appellants’ account with the Respondent and their indebtedness as claimed.

On the award of N10,000,000.00 to the Respondent, Counsel argued that the award was made in accordance with Order 19, Rule 4 of the High Court Rules, on admission by the 2nd Respondent that it gave additional guarantee of the sum. Cases on admission by parties and the principle that parties are bound by their pleadings; were referred to and it was said that the Appellants had admitted their indebtedness in the letter dated 27th of March, 2003. The Court is urged to uphold the decision of the High Court on Exhibit CW25 which proved the indebtedness of the Appellants to the Respondent. Arguments on the value of the balance of the goods warehoused and sold by the Respondent were made and the issue of estoppels raised in the Appellants’ brief is said not arise from the grounds of appeal and so incompetent. ‘In the Appellant’s Reply brief, further arguments on the principle of law on dumping of documents on the Court were made and the cases of Wema Bank v.

Osilaru (2008) 10 NWLR (1094) 150 @ 179-80 and Nagebu Co. Nig. Ltd. v. Unity Bank Plc (2014) 7 NWLR (1405) 42 @ 84-5 on whether a statement of account alone is sufficient to affix liability on a customer of a bank. Arguments were also made on alleged failure by the Respondent to respond to other submissions by the Appellants on the credibility of Exhibit CW25.

I should point out that the arguments are further arguments of the appeal by the Appellants’ counsel rather then reply to new points or issues arising or raised in the Respondent’s brief, which a reply brief is meant and provided for by Order 18, Rule 5 of the Court of Appeal Rule, 2011. A Reply brief is not an avenue for re-argument or further arguments of issues or points already canvassed in the Appellant’s brief by an Appellant. No, it is strictly provided for an Appellant to respond to, answer or reply to new points that may have been raised or arise from the Respondent’s brief which call for or require, such answer or reply from the Appellant. Where no new points were raised in or arise from the Respondent’s brief or where a Respondent did not reply, react or respond to any issue raised or

canvassed in the Appellant’s brief, the need for a reply brief would be absent or non-existent as the failure by a Respondent to react or respond to issues in the Appellant’s brief, would not amount to new points that would warrant a Reply brief from the Appellant. See: Umeji v. A.G. Imo State (1995) 4 NWLR (Pt. 391) 552 @ 593; Ojukwu v. Obasanjo (2004) 7 SC (Pt. 19) 117; E.I.I.A. v. C.E.E. Limited (2006) 4 NWLR (Pt. 969) 114 @ 128; Mun Lodge Limited v. Ngie (2009) 12 MJSC (Pt. 1) 56; Oshoboja v. Amida (2009) 12 MJSC (Pt. 6) 96; Duzu v. Tunusa (2010) 10 NWLR (1201) 80. In the premises of these authorities, I intend to discountenance all arguments contained in the Appellant’s Reply brief which contravened the Rules of Court for being merely repetitions or further arguments of issues or points already canvassed in the Appellant’s brief.

I would decide the concise issue raised by the Appellants as canvassed in the submission above, before considering the submissions on the other issues. The first point of attack on Exhibit CW25 by the Appellants is that it was dumped on the High Court by the Respondent. In simple terms, dumping a document on Court during

trial, means putting the document in evidence as an Exhibit without the vital evidence of witness/s to relate or link it with the specific aspect or part of the case in support of which the document was tendered or put in evidence by a party. This was the principle enunciated in the case of Awuse v. Odili (supra) wherein he Court stated that:-
“The correct view of the law is that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The Court cannot assume the duty of tying each of a bundle of documentary exhibits to specific aspects of the case for a party when that party has not done so himself. The foundation of the principle is that it is an infraction of fair hearing for the Court to do in the recesses of its chambers what a party has not himself done in advancement of his case in open Court.”
See also Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569; Douklpolagha v. Alamieyesigha (supra); Ejiogu v. Onyeaguacha (2006) All FWLR (Pt. 317) 467; Arabambi v. Advance Bev. Ind. Ltd (2006) All FWLR (Pt. 295) 581. The position of the law

stated and re-stated in these and other cases is that it is the duty of a party who tendered or put a document in evidence in support of the case he makes before a Court to specifically, by way of oral or other pieces of evidence in the case, relate, link up or tie the said document to the particular part of the case in respect of which it was tendered by him, for such a document be properly evaluated and ascribed probative value by the Court. The principle also postulates that it is not the business, let alone a duty of the Court in the absence of such link from the evidence of the party tendering the document, to investigate the document and look for the purpose for which it was tendered by seeking out the part of the case which it supports. Where no evidence was proffered to directly link a document to the part of the case it was tendered to support by a party, it is said that the party did not talk to the document in the case and so merely dumped it on the Court by putting it in evidence.
I should also point out that the position is the same irrespective of the manner or method used for the admission of the document in evidence or whether or not it

was admitted without objection. For instance, it does not matter if the document was front loaded or tendered at the trial without objection or by consent. The reason is that admissibility or admission of a document in evidence is different and distinct in law from its evaluation or assessment for the purpose of the probative valued to be ascribed or attached to it in the overall determination of a case. See U.B.N. Plc. v. Sparkling Brew Ltd. (2000) 15 NWLR (Pt. 689) 200: I.M.B. Nig. Ltd. v. Dabiri (1998) 1 NWLR (Pt. 533) 284; Buraimoh v. Karimu (1999) 9 NWLR (Pt. 618) 310; Adefarasin v. Dayekh (2007) 11 NWLR (Pt. 1044) 89. In this regard, even when properly admitted in evidence, with or without objection or by consent, documents, no matter how useful they could be, would not be of much assistance to the Court and the party who tendered them in the absence of admissible oral evidence by persons who can explain their purport and relate them to the case in support of which they were put in evidence. Documents are not object that can be cross-examined, even though they may speak for themselves in appropriate cases, so oral evidence to link or relate them to the

case they support, must be called to speak to them if they are to be of the requisite value to the case. Alao v. Akano (2005) 11 NWLR (Pt. 935) 160, (2005) 4 SC 125; Egba v. Appah (2005) 10 NWLR (Pt. 934); Nwole v. Iwuagwu (2006) All FWLR (Pt. 316) 325; Ejiogu v. Onyeaguocha (supra) FWLR (Pt. 317) 467; Arabambi v. Advance Bev. Ind. Ltd (2006) (supra).

In view of the above principle, was Exhibit CW25 dumped on the High Court?

It may be remembered that the Exhibit was frontloaded and tendered in evidence by the Respondent through cw3; one Obiageli Ezieke. The proceedings at which Exhibit CW25 was tendered through the witness were conducted on the 13th of December, 2012 and appear at pages 465-466 of the Record of Appeal thus:-
“EXAMINATION-IN-CHIEF OF THE 3RD CLAIMANT WITNESS
Sworn on the Holy Bible in English language.
My name is Obiageli Ezieke, I work with FCMB, I live at 21, Road F Close, House 25, Festac Town Lagos. I know the Claimants and the Defendants. I made a statement on oath on the 27th of July, 2012. I see same, I wish to adopt it as my testimony.
Court: Placed in the Court’s Record.
Third Claimant

Witness: I referred to several documents in my deposition. They are 10 documents.
Mr. Ezenduka: I seek to tender.
Mr. Ezediaro: No objection.
Court: The following documents are hereby tendered, no objection, admitted and marked as follows:-
1. Memo of deposit – Exhibit CW23.
2. Deed of Assignment between African International Bank Limited and Hairuji Nigeria Limited Exhibit CW24.
3. Defendant’s statement of Account with IMB International Bank – Exhibit CW25.
4. Letter dated 4/No/2003 written by IMB International Bank Plc to Robert Onuoha & Co. – Exhibit CW26.
5. Letter dated 3rd March, 2004 written by Robert Onuoha & Co. to the Commissioner of police – Exhibit CW27.
6. Bundle of documents – Exhibit CW28.
7. Further list of documents in the instant suit dated 25th May, 2006 – Exhibit CW29.
Mr. Ezenduka: That is all for the Witness.
Mr. Ezediaro:
CROSS EXAMINATION OF THIRD CLAIMANT WITNESS
I was never an employee of IMB. I was given information about the transaction from my legal Department.
Mr. Ezediaro: That is all.
Mr. Ezenduka: No

re-examination.”

Clearly, Exhibit CW25 was simply identified by the witness tendered by Counsel and admitted in evidence by the High Court. It is worthy of note that under cross-examination, CW3 said: –
“I was never an employee of IMB. I was given the information about the transaction from my Legal Department.”

The above, was the only evidence adduced by the Respondent in respect of Exhibit CW25 at the trial and no mention, even once, was made of the Exhibit or its purpose in the fifty-three (53) pages Final Written Address dated the 17th of May, 2012 by the learned counsel for the Respondent. It would appear therefore that the Exhibit was merely put in evidence by the Respondent without any explanation of the particular aspect of the case/claims made it supports or goes to prove. In now popular parlance, it would appear that Exhibit CW25 was dumped in the evidence before the High Court without the requisite link to the specific part of the Respondent’s case for which it was tendered. Section 51 of the Evidence Act, 2011 provides that:-
“Entries in books of accounts or electronic records regularly kept in the course of business are

admissible whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.” (Underline provided)
For being in plain, ordinary, simple and clear language, the above provisions are entitled to be ascribed the express purport contained therein. By their tenor, statements of entries in books of accounts or electronic records kept or maintained in the ordinary and usual course of business, are admissible whenever they refer to a matter which a Court has to determine in case, but alone, without more, “shall” not be sufficient evidence which can be used or relied upon by a Court to charge any person with liability. It simply means that such statements are not sufficient to prove, on their own, and without other or further evidence, the liability of person for which he can be charged by a Court.
Exhibit CW25 is undoubtedly, a statement of entries in books of accounts kept by the Respondent in the course of its usual business of banking in the relationship between it and the Appellants; its customers. It therefore comes without in the provisions of the

Section above, by which the statement alone, shall not be sufficient evidence to charge the Appellants with liability. See Anyaebasi v. Ril-Briscoe Nigeria Limited (1987) 6 SCNJ. 9. It may be noticed that the use of the word “shall” in the provisions does not admit of a discretion on whether the statement mentioned therein alone, could be considered as sufficient evidence upon which the liability of a person can be charged by a Court. The con in which the word was employed by the legislature, eliminates situations when or where the word “shall” may be interpreted to just be permissible or “may” instead of being directory of a command to be complied with in the application of the provisions. The provisions do not deal with procedure but rather, is the law on the requirement of proof of a fact assertion or allegation of liability by the party who alleges or asserts such liability against another person. In the case of Odogwu v. Odogwu (2006) 2 SCNJ. 96 @ 114, it was held that the word “shall” is used to express a command or exhortation, or what is legally mandatory. See also Bamayi v. A.G.F. (2001) 468 @ 480; Agip Nigeria Limited v. Agip Pet. Int’l (2010) 5

NWLR (1187) 348 @ 419. In the above premises, a statement of account, alone and without other or further evidence, oral or documentary, is not sufficient evidence to form or warrant a charge of liability of a person.

The question that would be asked at this stage is whether apart from just tendering Exhibit CW25 in evidence, CW3 did not in her oral evidence, explain its purpose or link it up with the claim that the Appellants are indeed indebted in the sums set out thereon from the facility granted to them by the Respondent. In the statement on oath dated 27th of July, 2012 made and adopted by the witness as her oral evidence at the trial, on the 13th of December, 2012, she had stated that the Exhibit she tendered shows the position of the facility granted to the Appellants and the outstanding indebtedness by them.

I have observed that the Appellants did not challenge or even deny the averment of the Respondent in paragraphs 12 and 23 of the 2nd Amended Statement of Claim that the indebtedness on the facility granted them, as at 28th of February, 2006, was in the sum contained in Exhibit CW25, i.e. N45,992,092.

Since the averments was

not specifically and directly traversed or denied by the Appellants, they are deemed to have conceded and admitted that they owed the said sum as claimed by the Respondent. What is admitted or by presumption of the law, deemed admitted, needs no further proof. Owosho v. Dada (1984) 7 SC, 149; IBWA v. Unakalamba (1998) 9 NWLR (Pt. 565) 254; N.N.B. v. Denclag (2005) 4 NWLR (Pt. 916) 549 @ 598. In the law of evidence, proof presupposes a dispute between parties on a particular fact and so where there is no dispute, the issue or question of proof would not arise. Although under Section 27 of the Evidence Act, 2011, admission, express or presumed, is not conclusive proof of the matters admitted. See also Nigeria Papermill v. Pithawalla Engineering (1989) 1 NWLR (1999) 622 @ 652; F.A.B.S. Limited v. Ibiyeye (2008) 14 NWLR (Pt. 110) 375. Where a matter is not disputed or a fact is admitted, minimum evidence would meet the requirement of proof, where provided for by the law, such as, stated in the provision of Section 57 above.

As shown above, CW3 has explained the purpose or purport of the Exhibit CW25 as showing the indebtedness of the Appellants to the Respondent

in respect of the facility granted them for the period indicated thereon. In addition, CW2 Soina Agi in her statement on oath has spoken to Exhibit CW25 when she said it represented the indebtedness of the Appellants to the Respondent on the same facility. Furthermore, in the pleading in Paragraph 12 of the 2nd Amended Statement of Claim, the Appellants were given notice by the Respondent to produce the monthly statements of account sent to them, but which the Appellants failed, neglected or refused to produce if they intended to dispute the sum claimed by the Respondent in Exhibit CW25. Exhibit CW25 was spoken to by the witnesses CW2 and CW3 who explained its purpose in their respective statements on oath which were adopted as evidence at the trial. The Exhibit was therefore not dumped on the Court.

It was also argued that the Evidence CW25 was discredited by other pieces of evidence and so not worthy of any probative value. It was argued that three (3) letters admitted in evidence as Exhibits CW11 dated 1st of March, 2001, CW21, D10 dated 3rd of September, 2002 and D9, dated 28th of March, 2003 all show partial satisfaction of the facility which the

Respondent did not deny and so presumed to have admitted. That the Respondent is estopped from denying the contents of the said Exhibits. Cases, including Abague v. Adikpa (1991) 1 NWLR (Pt. 322) 621 @ 628 and Voge v. Olubode (1974) All NLR, 657 @ 664 were cited along with Section 169 of the 2011 Evidence Act and it was further contended that the pieces of evidence adduced by the Appellants show that Exhibit CW25 should not have been ascribed any probative value by the High Court.

By mere arguments the learned counsel did not suggest that the partial satisfaction of the facility granted them, through the identified Exhibits were not reflected in Exhibit CW25 and even he did, the arguments are no evidence which is capable of controverting or contradicting the contents of Exhibit CW25.

In the first place, submissions by counsel are no substitute for evidence, no matter how brilliant and convincing they may appear and sound. Citizens International Bank Limited v. SCOA Nigeria Limited (2006) All FWLR (Pt. 323) 1650; Agharuka v. F.B.N. Limited (2010) 3 NWLR (l182) 46.

The law is also that oral evidence cannot be used to contradict the content of a

document put in evidence. Anyanwu v. Uzowuaka (2009) 7 MJSC (Pt. 1) Skye Bank Plc. v. Akinpelu (2010) 89 NWLR (1198) 179. The Exhibits referred to by learned counsel have not been demonstrated through evidence to contradict any particular entry/entries in Exhibit CW25 in order to negatively affects its credibility and probative value in the determination of the Appellants’ admitted indebtedness to the Respondent. It is not enough for counsel to simply, in address, attempt to impugn the contents of Exhibit CW25 without a specific demonstration by way of the evidence that directly goes to show that the entries in Exhibit CW25 are not correct. The allusion to the doctrine or issue of estoppels is a clear misconception in the evaluation of evidence by the High Court which has its own parameters in law. Exhibit CW25 does not fall within the ambit of the provisions of Section 92(1) of the Evidence Act, 2004 now Section 34(1) of the 2011 Act in relation to evaluation or assessment of the probative to be ascribed to it by the High Court. The factors judicially recognized and established to be taken into account in the evaluation or assessment of the probative value to

be ascribed to a piece of evidence; documentary or parole, were stated and restated in cases such as famous case of Mogaji v. Fin (1978) 4 SC 91 (1978) NSCC 275; Onwuka v. Ediala (1989) 1 NWLR (1996) 182: Ewulu v. Nwankpu (1991) 8 NWLR (Pt. 210) 487: Akad Ind. Limited v. Olubode (2004) 4 NWLR (Pt. 862) 1; Osigwe v. Uni Petrol (2005) All FWLR (Pt. 267) 1525; Hamza v. Kure (2010) 10 NWLR (1203) 630. They are: –
(i) Admissibility of the evidence;
(ii) Relevancy to the material facts;
(iii) Credibility of the evidence;
(iv) Probability of the evidence in relation to the material facts; and
(v) Conclusiveness of the evidence to the material facts.

These factors were those considered and applied in all the cases cited by the Appellants on evaluation of evidence including Rockonoh Prop. Co. Ltd. v. NITEL Plc (2001) 14 NWLR (Pt. 733) @ 468. Contrary to the submissions in the Appellants brief, no evidence was adduced by the Appellants at the trial to controvert any of the entries on Exhibit CW25 or to show that the alleged repayments or partial satisfaction of the facility, were not reflected or entered therein. Exhibit CW25, contains

columns for payments made into the Appellants’ account in respect of the facility and debit balances at the material times, none of which was directly challenged by credible evidence from the Appellants. Allegations that proceeds from sales by the Respondent or deposits made in satisfaction of the facility by reference to letters from Triana Ltd. on releases of goods/supplies on the direction of the Respondent were not reflected or entered on Exhibit CW25 have no basis from the entries contained on the Exhibit.

Learned counsel has also argued that the High Court had found that the outstanding sum on Exhibit CW25 to be N43,800,585 but entered judgment for the sum of N45,992,092 in favour of the Respondent. He referred to page 492 of the Record of Appeal and said the judgment cannot be allowed to stand. This was what was stated by the High Court in the judgment at page 492 of the Record of Appeal:-
“The Defendant having not placed any evidence on the other side of the scale to prove it as action that it is not owing the claimant, the Court therefore accepts the testimony of the 3rd CW that the outstanding owed to the Claimant by the 1st defendant as

at 15th October, 2004 was N43,800,585 as contained in the certified copy of the statement of account, Exhibit CW25, as proof of the debt owed to the Claimant by the Defendant the said debt having been duly demanded from the 1st and 2nd Defendants by the Claimant vide letter dated 8th April, 2002 and 2nd December, 2002 Exhibit CW7 (a) and CW8 (a) respectively.”

It can easily be observed that the sum accepted by the High Court as owed by the Appellant’s to the Respondent as per Exhibit CW25, was the indebtedness as at October 15th, 2004. However, the indebtedness of the Appellants to the Respondent on the facility in question as contained in Exhibit CW25 which is at pages 180-197 of the Record of Appeal, was as at the 28th of February, 2006. Indeed, the sum accepted by the High Court as at 15th of October, 2004 is reflected on the Exhibit.

The law is generally known that a Court of law not being a charitable institution, has no power to award a party to a case before it, more than he asked for and proved to be entitled to by credible and sufficient evidence properly and adequately assessed or evaluated by the Court. In addition, a Court of law cannot

grant a relief or make an award not sought or prayed for by a party to a case. Union Beverages Limited v. Owolabi (1988) 1 SCNJ 122: Akinbola v. Plisson Fisko Nigeria Limited (1991) 1 NWLR (Pt. 167) 270: Akinterinwa v. Oladijoye (2000) 4 SC (Pt. 1) 1: Okuilor v. Jite (2005) All FWLR (Pt. 287) 855.

In the present appeal, the Respondent in paragraphs 12 and 23 of the 2nd Amended Statement of Claim (referred to earlier) has claimed the sum of N45,492,092.45 as the sum owed by the Appellants as at 28th February, 2006. Exhibit CW25, the evidence shows that the sum is owed by the Appellants as at 28th February, 2006.

The sum claimed in the pleadings and in Exhibit CW25; the evidence adduced in proof of the pleadings by the Respondent was the sum entered by the High Court in its judgment as the debt owed by the Appellants. The High Court therefore entered judgment in favour of the Respondent for the sum claimed in pleadings and proved by evidence vide the oral testimonies of CW1 and CW3 as well as Exhibit CW25. The sum awarded cannot seriously be faulted in the circumstance.

In all, I find no merit in the Appellants’ issue 1 which is resolved

against them.

The Appellants’ Issue 2: whether the lower Court was not in error when it failed to order their respondent to render account for the appellant’s stock of N27 Million sold by it as counter claimed by the appellants. The Appellants’ submissions on the issue are that the High Court did not consider Exhibit D4A; a letter dated 27th of March, 2003 from the 1st Appellant to the Respondent on its indebtedness on the facility account as at 3rd September, 2002, said to have been N22,033,938.59 and so made the wrong finding that there was no evidence that the said sum was owed. The Court is urged to order the Respondent to account for the sale of Appellants’ stock in the sum of N5,309,561.00 as counter claimed.

The learned counsel for the Respondent in arguing his two (2) issues, did not directly address the issue as couched and argued in the Appellants’ brief save to maintain that the Appellants had admitted heir indebtedness in the sum of N22,033,938.59 as at March, 2003.

All I need say on the arguments by the Appellants on the issue is that they did not demonstrate that the indebtedness on the

facility granted them by Respondent was not in the sum indicated on Exhibit CW25, as at the 28th February, 2006, even if it stood at the sum claimed by them as at March, 2003.

Perhaps, I should state the mere absence of a direct reply on the issue by the Respondent does not automatically translate into the success or even merit of the issue as argued by the Appellants. For the issue to succeed on the merit, it has to be sustainable by the facts, evidence and indeed, the law, in respect of the indebtedness of the Appellants to the Respondent on the facility in question. It lacks that sustainability and merit to succeed in this appeal. It is answered in the positive to the effect that the High Court was not in error when it declined to order the Respondent to account for the Appellants’ stock as counter claimed by them.

Issue 3 of the Appellants’ is whether the lower Court was not in error when it awarded the Respondent the judgment sum of N10Million against the 2nd Appellant which was not claimed by the Respondent.

Appellants submissions are that the sum was not claimed by the Respondent and so it was awarded more than its claim contrary

to the principle of law stated in Liman v. Mohammed (1999) 9 NWLR (Pt. 617) 116 and Bank of the North v. Saleh (1999) 8 NWLR (Pt. 618) 331. The grant of N10 Million guarantee sum is said to be without any legal basis and should be set aside.

For the Respondent, it was submitted on the issue that the Appellants have admitted in Paragraph 7 of the 4th Amended Statement of Defence and Counter Claim that the 2nd Appellant gave a personal guarantee of N10 Million as additional security for the facility and the High Court was entitled, under Order 19, Rule 4 of its Rules 2012 to grant the sum in its judgment. Definitions of “Addition” and “Security”, Section 21(1) of the Evidence Act, 2011 and the case of Alli v. Alesinloye (2000) FWLR (2015) 2013 were referred to on the effect of admission.

The case of Buhari v. Obasanjo (2005) All FWLR (Pt. 258) 1604 @ 1678 was cited on the law that parties are bound by their pleadings and the Court is urged to uphold the judgment by the High Court.

The starting point in the determination of the issue is to find out from the pleadings of the Respondent if the claim for the sum of Ten Million Naira

(N10,000,00.00) was made against Appellants as a personal guarantee issued by the 2nd Appellant for the facility granted the 1st Appellant. The relevant pleadings are contained in the Respondent’s 2nd Amended Statement of Claim dated the 11th of July, 2012 of 25 paragraphs and which appears at page 424 to 428 of the Record of Appeal.

In paragraph 25, the Respondent had pleaded thus:-
“25. The Plaintiff now claims against the Defendant jointly and severally as follows:-
(1) The sum of N45,992.092.45 (Forty-Five Million, Nine Hundred and Ninety-Two Thousand Ninety-Two Naira and Forty-Five Kobo) only being the outstanding balance of the facility granted to the Defendant comprising of principle sum and accured interest as at the 28th day of February, 2006.
(2) The Plaintiff further claims interest on this sum at the rate of 28% per annum from 1st day of March, 2006 until final judgment and post judgment interest of 10% on the adjudged sum from the date of judgment until the final liquidation of the entire judgment debt.
(3) Cost of litigation N500,000.00 (Five Hundred Thousand Naira) and on full indemnity basis.”

A part from the

above items of claims, there is/are no other claims specifically made against the Appellants by the Respondent in respect of the facility in question. In particular, no claim, howsoever and whatsoever, was made by the Respondent against the Appellants on the personal guarantee issued by the 2nd Appellant in the sum of Ten Million Naira (N10,000,000.00) as additional security for the payment of the facility granted by it to the 1st Appellant in the entire averments of the above pleadings of the Respondent on which the case was tried and concluded by the High Court. In other words, the Respondent in the case presented and proved before the High Court, no claim was made at all for the said sum of personal guarantee against the Appellants. However, in its judgment, the High Court gratuitously after granting the claim specifically made against the Appellants by the Respondent, entered judgment:-
“3. In favour of the claimant against the 2nd Defendants (sic) in the sum of N10,000,000.00 (Ten Million only).”

However, curiously, nowhere in the twenty-seven and a half (27??) pages judgment which runs from page 470 to page 497 of the Record of Appeal, did

the High Court make any allusion to the facts and evidence pleaded and adduced before it for the judgment entered in favour of the Respondent for the sum of N10,000,000.00 against the 2nd Appellant. No such facts were pleaded nor evidence adduced and none was even referred to by learned counsel for the parties in their respective final addresses because it was not an issue placed before the High Court for decision in the case. The law is known that the judgment of a Court of law must be confined to the determination of the issues raised, placed and canvassed by the parties before the Court in their pleading and evidence and on what was properly claimed by them in a case.Kuti v. A.G. of the Federation (2001) FWLR (1980) 1637; F.B.N. Plc v. Olaleye (2013) 1 NWLR (Pt. 1334) 102; Ogunyade v. Oshunkeye (2007) 15 NWLR (1057) 218: Odunkwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339.

principle earlier; Odukwe v. Ogunbiyi (supra); Onu v. Agu (1996) 5 NWLR (Pt. 457) 652; Ojah v. Ogboni (1996) 6 NWLR (Pt. 454) 212; Oduwole v. West (2010) 10 NWLR (1203) 598: Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450. The award of N10,000,000.00 in favour of the Respondent against the 2nd Appellant by the High Court which was not claimed in the case presented before it, was made without the requisite judicial power and authority on its part, to do so. For that reason, this award is void in law and this Court has not only the jurisdiction, but a legal duty to set it aside for being a nullity.

In the result, I find merit in the Appellants’ Issue 3 which is resolved in their favour to the effect that the High Court erred in law to have awarded or granted to the Respondent what was not claimed by it in the case presented at the trial.

Issue 4: Whether the High Court did not err in law when it failed to enter judgment for the Appellant on their counter claim for fraudulent misrepresentation regarding the Respondent’s capacity to contract on the Letters of Credit. The submissions for the Appellants are that the Respondent did not discharge the

burden of proving that its license to transact in foreign exchange was revoked after its contract with the Appellant to advice on the Letters of Credit it required to import agricultural chemical, since it admitted the contract. The Respondent was said to have had the burden of proof by producing the notice of the ban by the CBN on it to engage in foreign exchange transaction, which CW2, under cross-examination, admitted to be writing, in order to provide a defence to the Appellants’ counter claim. It was argued that the failure to produce the notice of the ban from C.B.N. should attract the invocation of the provision of Section 167 of the Evidence Act and sufficient to have warranted a judgment for the Appellants on the counter claim. Exhibit CW18 is said to have shown that the Respondent had failed to fund the Letters of Credit as agreed with the Appellants and gave conflicting evidence for reasons for the failure. The cases of Onwuka v. Ediala (supra) and Nnajiofor v. Okonu (1985) 2 NWLR (2009) 686 were cited on evaluation of evidence and the Court is invited to evaluate the evidence adduced on the counter claim by the parties and decide which is more

credible, conclusive and probable on the disputed facts. According to Counsel, Exhibits CW19 and 20 amount to an admission by the Respondent that the contract for the Letters of Credit failed due to the Respondent’s inability to perform its own part as agreed. In addition, the High Court was said not to have considered Exhibits CW19 and D5 on the losses caused by the Respondent’s failure to perform the said contract, which counsel argued, were not challenged by the Respondent. Calabar East Co-operative v. Ikot (1999) 14 NWLR (Pt. 225) 241 was referred to on the law for unchallenged special damages and it was submitted that the High Court did not correctly evaluate the evidence on the counter claim and that the Court is empowered to intervene and make its own findings on the evidence, on the authority of Dagetanos Construction Limited v. FMV Limited (2011) 16 NWLR (Pt. 1273) 308 and Mafimisebi v. Ehuwa (2007) 2 NWLR (Pt. 1018) 385.

For the Respondent, it was submitted that the Appellants bore the initial burden of proving their counter claim which they failed to do and so no burden shifted to the Respondent to prove the defence to the counter claim. The

cases of Ebong v. Ekpe (2002) 17 NWLR (Pt. 797) and Braimah v. Abasi (1998) 13 NWLR (Pt. 581) 167 are said not be helpful to the Appellants’ case and that the Respondent had proved by Exhibits CW16, CW18 and B1 and B2 that the letters of credit contracted by the parties could not be advised due to the fault of the Appellants and that when the Respondent was suspended from foreign exchange transaction, at the instance of the Appellants, the transaction was transferred to Access Bank. It was further submitted for the Respondent that there was evidence that it did not agree to fund the Letters of Credit and it was the Appellants that were to do so, through Exhibit CW17. Counsel argued that under cross-examination, it was shown that even before the Letters of Credit were transferred to Access Bank, the goods to be imported by the Appellants had been shipped to Nigeria but abandoned by them at the port.

It was maintained that the Appellants did not prove their counter claim and the High Court was right in dismissing it.

No new points arise from the Respondents’ brief to call for a reply from the Appellants.

I should state, as a foundation,

that the law is firmly settled that unlike in criminal allegations where the burden of proof is permanently fixed on the prosecution to prove the guilt of an accused person beyond reasonable doubt through out the trial, in civil proceedings, though the initial burden of introducing evidence to prove an assertion is on the party who asserts either positively or in the negative, the general burden of proving facts may depend on the state of the parties’ pleadings at any stage of the trial and so may shift in the course of proceedings. Elemo v. Omolade (1968) NWLR 359; Osawaru v. Ezeiruka (1978) 6-7 SC 135 @ 145; Ogbu v. Okoma (2005) 7 SC (Pt. 11) 123; Buhari v. Obasanjo (2005) 7 SC (Pt. 1); Apatira v. Lagos Island Local Government Council (2006) All FWLR (Pt. 328) 755; Adighije v. Nwaogu (2010) 12 NWLR (1209) 419.
The law is also now common knowledge that a counter claim is a separate distinct and independent claim for the purposes of proof, from the main claim in a case. A party to a case who counter claims in the case, is for the purposes of the counter claim, the Plaintiff as claimant while the party against whom the counter claim is made, is the Defendant.

The initial burden of proving the assertions made in a counter claim is to be borne by the counter claimant who takes the position of a plaintiff since it is he who desires that judgment be entered in his favour based on the existence of fact/s he asserts in the counter claim and who would fail if no evidence at all, was adduced in the counter claim. Ogbonna v. A.G. Imo State (1992) 1 NWLR (Pt. 220) 647: Obmiani Brick Stone Nigeria Limited v. A.C.B. Limited (1992) 3 NWLR (Pt. 229) 260; Dabop v. Kolo (1993) 9 NWLR (Pt. 317) 254; Jeric Nigeria Limited v. U.B.N. Plc (2000) 12 SC (Pt. 11) 133; Musa v. Yusuf (2006) 6 NWLR (Pt. 977) 454; Anozia v. A.G. Lagos State (2010) 15 NWLR (Pt. 1216) 207.

The pith of the complaint by the Appellants under this issue is that the High Court did not properly evaluate the evidence adduced by the Appellants in support of their counter claim and so erred in concluding that the counter claim was not proved by them. According to counsel for the Appellants, the counter claim was premised on the contract with the Respondent to advice the two (2) Letters of Credit (L.C.S.) when the Respondent knew that:-
“a. its license to

engage in foreign exchange (forex) transactions had been revoked by the Central Bank of Nigeria; and
b. it lacked the financial capacity to advice both LCs with a cumulative value of more than N5 Million;
c. it withheld the above information from the Appellant;
and
d. And that owing to said fraudulent misrepresentation by the respondent who failed to perform said contracts owing to its lack of the necessary capacities, the LC contacts were a total loss despite having been transferred to another bank after the discovery of the respondent’s disabilities regarding same.”

He argued that with the admission of the contract between them, the burden of proof shifted to the Respondent to prove its defence to the counter claim by the production of documentary evidence, especially the notice from the C.B.N. suspending its licence to engage in foreign exchange transaction, which the Respondent failed to produce.

As can easily be observed, the counter claim by the Appellants was predicated on the main allegations/assertion that: – (i) that at the time of the contract for the L.C.S., the Respondent knew that its licence to transact in

foreign exchange had been suspended/withdrawn; (ii) that at the time of the contract, the Respondent knew that it lacked the financial capacity to advice the L.C.S. as contracted and; (iii) that the Respondent deliberately and fraudulently concealed the facts in (i) and (ii) from the Appellants and induced them to contract to their detriment. These are positive allegations/assertions made by the Appellants in the counter claim on the basis of which they desired that the High Court entered judgment in their favour. If no evidence was called in respect of these assertions, it was the Appellants who would have failed and by the operation of Section 131, 132 and 133(1) of the Evidence Act 2011, the Appellant bore the burden of proving them by credible and sufficient evidence before the burden could shift to the Respondent to rebut it in defence. The existence of the contract for the L.C.S. between the parties was not an issue of fact in any dispute and does not automatically show or prove any of the assertions/allegations made by the Appellants against the Respondent to entitle them to judgment on the counter claim without proof from them. The allegations border

on breach of the contract between the parties and the burden lies on the Appellants who made the assertions to prove them as required by law before it may shift to the Respondent to disprove. Haido v. Usman (2004) 3 NWLR (Pt. 859) 65, Adeoti v. Ayorinde (2001) 6 NWLR (Pt. 709) 336; Saka v. Iguh (2000) 4 NWLR (1184) 405. Learned Counsel had referred to among other pieces of evidence, Exhibit CW18 to show that the Respondent failed to fund the L.C.S. as agreed by the parties. Under the Appellants’ application for the advice of the L.C.S. to the Respondent which was approved, was the Respondent to fund the L.C.S. or was it for the Appellants to fund? The request of the 1st Appellant to the Respondent to open the L.C.S. for the importation of the Agritol Chemicals from Lebanon, dated the 5th of June, 2002, is at page 98 of the Record of Appeal and among the documents attached thereto is the one at page 103-4 of the Record of Appeal admitted as Exhibit CW16. At page 2 of the document; page 104 of the Record of Appeal, paragraph 7 and 8 thereof state that:
“7. IT WLL BE THE PRIME RESPONSIBILITY OF THE CREDIT APPLICANT ONLY TO ARRANGE AND PAY THE VALUE OF THIS

CREDIT FROM THEIR OWN RESOURCES.
8. THIS CREDIT WILL BE OPERATIVE SUBJECT TO ACCEPTANCE BY THE BENEFICIARY OF THIS CONDITION (7) AS WELL AS THE SUBMISSION OF AN UNDERTAKING TO THE ADVISING/NEGOTIATING BANK THAT DRAWNGS WLL NOT BE CLAIMED UNDER THIS CL BY THE BENEFICIARY UNTIL THERE IS A COMFIRMATION FROM THE ISSUING BANK THAT FUNDS HAVE BEEN SOURCED BY THE APPLICANT.”

The clear purport of these provisions is that the 1st Appellant was to fund the advice of the L.C.S. for which it applied or requested the Respondent to issue. The request by the 1st Appellant to the Respondent to open a documentary LC and approval of the request by the Respondent on the conditions stipulated in the approval and the subsequent acceptance by the 1st Appellant of the conditions, constituted the L.C.S. contract between the parties upon which the counter claim by the Appellants is predicated. From the contract, the Appellants were to source for the funds to enable the Respondent to advice on the LCS approved and issued by it. Parties are bound by the terms and conditions they freely agreed upon in their contract even if counsel calls them strange. N.H. International A.A.

v. Nicon Hotels Limited (2007) 15 NWLR (Pt. 1056) 1; Hilary Farms Limited v. M-V “Mahtra” (2007) 14 NWLR (Pt. 1054) 210; Onyekwu v. Elf Pet. Nig. Ltd. (2009) 5 NWLR (1133) 181. The arguments for the Appellants is not that they had provided the funds for the L.C.S. to the Respondent as agreed but that the Respondent failed to use it to fund the L.C.S. Without evidence from the Appellants that they did provide the funds for the L.C.S. issued by the Respondent as agreed in their contract, they cannot turn round to allege that the Respondent failed to fund the LCS, relying on the contents of Exhibit CW18, which in any case, did not show failure by the Respondent to fund the LCS.

In addition, learned counsel for the Appellant did not allude to any piece of evidence adduced by the Appellants at the trial to even prima facie, prove that at the time of the contract for the L.C.S., the Respondent did not have the requisite financial capacity to fund the L.C.S. and that it’s licence to transact in foreign currency had been suspended or withdrawn. Learned counsel for the Appellants has strenuously harped on the argument that failure by the Respondent to produce

the notice of the C.B.N. suspending it from foreign exchange transaction was crucial to the defence of the Respondent to the counter claim by the Appellants. I should simply say that the need for defence by the Respondent to the counter claim would only arise when the Appellants discharged the burden of proving the assertions made in the counter claim against it, as required by law. In the absence of the required proof from the Appellants, the question of defence by the Respondent would not arise and be required from it. I have not found any credible evidence from the Appellants in proof of the allegation that at the time of their contract with the Respondent for the L.C.S., the latter did not have or lacked the required financial capacity to fund the L.C.S.

Furthermore, there is no iota of evidence from the Appellants to prove their more serious allegation of fraudulent concealment or misrepresentation of material information by the Respondent.

In the absence of credible and sufficient evidence to prove the counter claim as required by law, what other evidence was placed before the High Court for it to evaluate for the purpose of entering

judgment in favour of the Appellants. From the record of the evidence adduced by the Appellants on the counter claim and the judgment by the High Court, there was proper and adequate assessment or evaluation by the High Court of the evidence, employing all the parameters set out and restated in the judicial authorities cited by counsel on evaluation of evidence for the purpose of ascription of probative value by a trial Court. I should restate the law that the primary duty of evaluation or assessment of evidence adduced by parties in a case and ascription of the deserved probative value thereto in the determination of the dispute between them, is that of a trial Court due to its unique position and advantage of being a firsthand stage at which parties ventilate their disputes. Where a trial Court justifiably appraised the facts and assessed properly, the evidence adduced in support of the facts in the pleadings of the parties, an appellate Court would have no reason to warrant an interference with the assessment/evaluation of the evidence for the purpose of substituting its own views. It is only where and when a trial Court fails to evaluate the evidence in

line with established guidelines for evaluation of evidence or improperly evaluated the evidence placed before it either by disregarding relevant factors or taking into account irrelevant factors, that the appellate Court, is not only entitled to, but has a duty to intervene. Ojokolobo v. Alamu (1998) 9 NWLR (Pt. 565) 226. Sha v. Kwan (2000) 5 SC 178; State v. Ajie (2000) 7 SC (Pt. 1) 24: Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65: Mini Lodge Limited v. Ngei (supra): Teriba v. Adeyemo (2010) 13 NWLR (Pt. 1211) 242: Military Governor, Lagos State v. Adeyiga (2012) 5 NWLR (1293) 291.
The duty of an appellate Court in respect of complaint in appeal on evaluation of evidence by a trial Court is a limited one in that it is confined to seeing whether or not that Court has or has not made procedural or substantive errors or has failed to make any or proper findings which the evidence placed before it deserves. It is not the function of an appellant Court to retry a case on the record or notes of printed record of the evidence adduced at the trail for the purposes of setting aside the decision of the trial Court merely on the ground that the appellate Court

would have reached a different conclusion on some or even all the facts or evidence adduced. What is important is that if a trial Court had properly appraised the facts and adequately evaluated the evidence before it, which evidence can reasonably support its findings, then, an appellate Court ought not to interfere or disturb the evaluation and findings by the Lower Court. See Omoregie v. Idugieinwanye (1985) 2 NWLR (2005) 41: Ugo v. Obiekwe (1989) 1 NWLR (1999) 566: Kalu v. Odili (1992) 5 NWLR (240) 130; Layinka v. Makinde (2002) 10 NWLR (Pt. 775) 358. The Appellants have not demonstrated that the evaluation of the evidence on the counter claim was not proper to warrant or justify interference with the decision by the High Court that the Appellants had failed to prove same and dismissing it. There is no merit in the issue and it is answered in the negative; that the High Court did not err when it dismissed the Appellants’ counter claim for want of proof.

Issue 5: Whether the decision by the Lower Court is not against the weight of evidence.

The submissions for the Appellants were rehash of the cases presented by the parties as argued in the

preceding issues 1-4 above and it was argued, once again, that the High Court erred when it preferred the evidence of the Respondent to that of the Appellants in the judgment appealed against. With my findings on the 4 issues in respect of evaluation of evidence by the High Court, the application of the principle in the case of Olujinle v. Adeagbo (1988) 2 NWLR (1975) 238 @ 254, would not arise in the appeal. It is only where an appellate Court found that a trial Court either failed at all or did not properly evaluate evidence, particularly documentary, and so did not ascribe the probative value it deserves, that the principle would be applicable to enable the appellate Court embark on its own evaluation of the relevant evidence for the purpose of making appropriate findings. That is not the position in this appeal and so the issue is wanting in merit.

Before I conclude the judgment, I should point out that I deliberately ignored the arguments of the Respondent’s counsel at paragraph 7.0 on page 26 of the Respondent’s brief.

The arguments seek the order of the Court varying the order by the High Court in the judgment appealed against on the

return of the title document held by the Respondent to the Appellants. Respondent in addition, seeks that the Court “overturn this aspect of the judgment of the lower Court and dismiss claim viii, of the Appellants.”

Learned counsel for the Respondent did not even pretend in the brief, to suggest that the Respondent had filed a Respondent’s notice, as required by Order 9, Rule 1, Court of Appeal Rule, 2011 for the decision or order by the High Court to be varied, or has filed an appeal/cross appeal against the decision or order by the High Court to make the arguments valid and competent for consideration in the appeal.

In the appellate Courts, the law is common knowledge now that a Respondent to an appeal who neither filed a Respondent’s notice nor an appeal, has the role and traditional duty to support the decision/judgment of lower Court on appeal. See Atanda v. Ajani (1989) 3 NWLR (111) 511: Imoniyame Holdings limited v. Soneb Enterprise Limited (2002) 4 NWLR (Pt. 758) 618: Comptoir Comm. & Ind. S.R.R. Ltd. v. Ogun State Water Corporation (2002) 2 NWLR (Pt. 773) 629; Obi v. I.N.E.C. (2007) All FWLR (Pt. 378) 1116.

For being

incompetent, the Respondent’s arguments on the order for the return of the title documents held by the Respondent to the Appellants are not worthy of consideration in the appeal and hereby struck out.

In the final result, this appeal is lacking in merit on the Appellant’s issues 1, 2, 4 and 5 and is dismissed on the said issues. The appeal is meritorious on Appellant’s issue 3 and is allowed on the said issue. Consequently, the award of N10,000,000.00 in favour of the Respondent against the 2nd Appellant is hereby set aside while the other orders contained in the judgment delivered on the 26th of June, 2013 by the Lagos State High Court In the Suit NO. LD/174/2004, are hereby affirmed.

There shall be costs of N100,000.00 in favour of the Respondent for the prosecution of the appeal.

UZOAMAKA I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. He has painstakingly and meticulously dealt with the issues articulated in this appeal.

I am in total agreement with his reasoning and final conclusions. I

have nothing meaningful to add.

I abide by all the orders contained in the lead judgment including that as to costs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have before now read the judgment of my learned brother, GARBA, JCA just delivered.

I agree with him that the appeal succeeds in part and ought to be allowed. I entirely agree with the reasoning and conclusion reached in the said judgment and I adopt same as mine.

Accordingly I also allow the appeal on issue 3 only abide by the consequential order(s) made in the leading judgment.

Appearances

Olalokun Omolodun with C. A. O. SuenuFor Appellant

AND

Ezedunka Aloy C.For Respondent