MR. BRENDAN NICODEMUS AKPAN v. FIRST BANK OF NIGERIA PLC (2018)

MR. BRENDAN NICODEMUS AKPAN v. FIRST BANK OF NIGERIA PLC

(2018)LCN/11186(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 28th day of March, 2018

CA/C/217/2017

RATIO

THE ESSENCE OF BRIEFS AND ISSUES

DEFINITION OF LIBEL

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

MR. BRENDAN NICODEMUS AKPAN Appellant(s)

AND

FIRST BANK OF NIGERIA PLC Respondent(s)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Akwa Ibom State in Suit No. HT/38/2001 delivered on the 17th day of February, 2014 by S. E. Okon, J.

The Appellant was the Claimant at the Court below while the Respondent was the Defendant.
?The background facts from the record of appeal are that the Appellant a customer of the Respondent applied for an overdraft facility of Three Million Naira (N3,000,000.00) to assist him boost his frozen fish trade. The Respondent eventually approved One Million, Five Hundred Thousand Naira (N1.5m) and it was released to the Appellant by the Respondent. A direct Legal Mortgage Agreement was executed to evidence the transaction. The legal mortgage was created in respect of the Appellants property covered by Certificate of Occupancy dated 20th January, 1995 and registered as 41/41/73 at the Land Registry, Uyo. The relationship of the parties got sour over a period of time as a result of the operation of the overdraft facility and the Appellant filed a suit at the Court below against the Respondent vide a writ of summons filed on 27th June, 2001. The reliefs of the Appellant were expressed as follows:
a. A Declaration that the Plaintiff is not owing the Defendant the sum of N3,826,586.84 (Three Million, Eight Hundred and Twenty Six Thousand, Five Hundred and Eighty Six Naira, Eighty Four Kobo) only as at 25th May, 2001 and/or any other sum.
b. A Declaration that the four transactions wrongly debited to Plaintiff?s account which amount to N1,078,065.00 and which the Defendant cannot expound or reverse same from Plaintiff promptly is a deliberate act to falsify the records of the Plaintiff as well as it being wrongful, oppressive, unjustifiable and unethical.
c. A Declaration that Defendants failure to furnish Plaintiff with accurate record/Statement of Account ? Current Account No. 0140201696500 and failure to account for the balance in the Savings Account No. 0140301849600 belonging to the Plaintiff amounts to a breach of duty owed the Plaintiff by Defendant.
d. A Declaration that the Defendant is owing the Plaintiff the sum of N4,849,814.28 (Four Million, Eight Hundred and Forty Nine Thousand Eight Hundred and Fourteen Naira Twenty Eight Kobo) Only as per the computation from the records of the Plaintiff.
e. A Declaration that the unilateral increase of the agreed interest rate of 18% per annum to 28% and above is unlawful, illegal and against the Central Bank of Nigeria Guidelines which fixed maximum ending rate at 21% between 1997 ? 2002.
f. A Declaration that the Plaintiff is entitled to take custody of his title documents in possession of the Defendant as the Plaintiff has fully paid up the credit facility granted by the Defendant.
g. A Declaration that the publication of the Plaintiff?s name and family house/property in the Pioneer Newspaper of 26th June, 2001 and Daily Champion Newspaper of 17th December, 2002 when the Plaintiff did not owe.
h. An Order directing the Defendant to refund the sum of N4,849,814.28 (Four Million, Eight Hundred and Forty Nine Thousand Eight Hundred and Fourteen Naira Twenty Eight Kobo) only to the Plaintiff with interest at the rate of 18% with effect from 24th September, 2001 till date of judgment and thereafter at 10% till full liquidation.
i. N50m general damages for defaming the Plaintiff in the two newspaper publications of 25th June, 2001 and 17th December, 2002 and destroying Plaintiff?s business connections integrity and goodwill.
j. An Injunction restraining the Defendant, its servants, agents, privies or whosoever from selling and/or Auctioning the Plaintiff?s family house/property lying, being and situate at No. 3 Mungo Park Road, Ikot Ekpene covered by Certificate of Occupancy dated 20th day of January, 1995 and registered as No. 41/41/73 at the Land Registry in Uyo.
k. An Order of perpetual injunction restraining the Defendant its servants, agents, privies or whosoever from enforcing the direct Legal Mortgage dated 13th May, 1997 and Registered as No. 57/57/104 at the Lands Registry in Uyo.
l. An Order of Court directing the Defendant to release and return to the Plaintiff, Certificate of Occupancy registered as No. 41/41/73 dated 20th January, 1995 and discharge the Plaintiff from the direct Legal Mortgage transaction dated 13th May, 1997 and registered as No. 57/57/104 for a loan which loan plus interest thereon have been duly repaid.

The Respondent joined issues with the Appellant by filing her defence and made a counter-claim. The counter-claim is at pages 90 to 91 of the Record of Appeal.

The counter claim reads:-
a. The sum of N6,261,101.98 being outstanding mortgage debt owed and payable to the Defendant Bank by the Plaintiff as at 4th September, 2002 which sum the Plaintiff has failed, refused and/or neglected to repay despite repeated demands.
b. Interest on the said sum of N6,261,101.98 at the rate of 34% per annum from 5th September, 2002 until final liquidation.
c. An Order of Court for Defendant to exercise his equitable power of sale in respect of the mortgaged property lying and situate at No. 3 Mungo Park Road, Ikot Ekpene, delineated on Survey Plan No. RIM/3/73 annexed to and covered by Certificate of Occupancy dated 20th day of January, 1995 and Registered as No. 41 at page 41 in Volume 73 of the Lands Registry, Uyo.
d. An Order of Court discharging the order of this Honourable Court restraining the Defendant from exercising her right of sale made on the 2nd day of July, 2001.

The Court below heard the case of the parties and granted the claim of the Appellant partly and dismissed in entirety the counter-claim of the Respondent.

Dissatisfied with this decision the Appellant filed this appeal while the Respondent cross-appealed. The notice of appeal was filed with the leave of this Court on 24th March, 2017. The notice of cross appeal was filed in this Court on 30th October, 2017.

The record of appeal was transmitted on 29th June, 2017. Thereafter the Appellant?s brief was filed on 31st July, 2017. The Respondent?s brief was filed on 15th September, 2017. The Respondent/Cross-Appellant filed the Cross-Appellant?s brief on 30th October, 2017. A notice of preliminary objection was filed by the Appellant/Cross Respondent on 13th December, 2017. The Appellant on 3rd October, 2017 had also filed Reply Brief to the Respondent brief. A Cross-Respondent?s brief was filed on 13th December, 2017.

I wish to deal with the appeal first. The Appellant in his brief distilled six (6) issues from six (6) grounds of appeal. These issues are:
ISSUE NO. 1 IN RESPECT OF GROUND OF APPEAL NO. 1
Whether cash deposits and cash withdrawal transactions between a customer (Appellant) and a bank (Respondent) represented by vouche stamped and confirmed by the Respondent can be used for reconciliation purposes and determination of obligation between the disputant parties particularly where the bank (the Respondent) refused to issue a statement of account when demanded by the customer (Appellant)?.
ISSUE NO. 2 IN RESPECT OF GROUND OF APPEAL NO.2
Whether the criteria of proving libel are the same with the criteria of proving slander in defamation of character matters.
ISSUE NO. 3 IN RESPECT OF GROUND OF APPEAL NO. 3
Whether the content of an admissible document can be contradicted by the content of an inadmissible document.
ISSUE NO. 4 FOR GROUND OF APPEAL NO. 4
Whether the trial Court was right in failing to resolve the issue relating to wrongful cash withdrawals from the Appellants? account amounting to N1,078,065.00 which was not controverted by the Respondent?.
ISSUE NO. 5 IN RESPECT OF GROUND OF APPEAL NO. 5
Whether there was any evidence from the Respondent to contradict the case of the Appellant or create any weight in the other side of the Justice scale against the case of the Appellant?.
ISSUE NO. 6 IN RESPECT OF GROUND OF APPEAL NO. 6
Whether it was the duty of the Appellant to prove the interest paid on the overdraft facility and how much He had paid back when the Appellant had actually proved that the Respondent was custodying his funds amounting to N4,849,814.28 and N1,078,065.00 after the overdraft facility had been fully refunded.?

It is still not yet understood by many practitioners, that the reason why appeals are argued by briefs and through issues distilled is to have more concise and precise argument of the appeal in aid of speedy dispensation of justice.
Over the years we have been shouting out loud against prolixity and proliferation of issues. Where there are six grounds of appeal it is expected that issues distilled should be less than the number of the grounds of appeal.
The point is clearly this, if the issues so distilled are matching the number of grounds of appeal of what use is the framing of issues? Order 19 Rules 2 and 3 of the Court of Appeal Rules 2016 requires that Appellant shall file in the Court a written brief being a succinct statement of his argument in the appeal. The brief is to contain inter alia, the issues arising in the appeal. Since the law requires that a brief must be a succinct statement of the party?s argument there is no limitless open sky for any parties to present his argument. The word succinct means briefly and clearly expressed and it is synonymical to being concise, short, brief, compact, condense, crisp, laconic, terse and tight to the point. I cannot but crop out from the Supreme Court decision in CONSORTIUM M. C. 3632 LOT4, NIGERIA VS. NATIONAL ELECTRIC POWER AUTHORITY (1992) LPELR ? 893 (SC) where Nnaemeka-Agu, JSC held:
?What can form an issue for purposes of an appeal is a fact or law or combination of them upon which majority of the Justices are ad idem and as has been stated several times, an issue for purposes of an appeal is not just every slip committed by the Judge whose judgment is appealed from. Rather for purposes of an appeal, it is a proposition of law or of act so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court. See on this: CHUKWUMA OKWUDILI UGO VS. AMAMCHUKWU OBIEKWE & ANOR. (1989) NWLR (PT. 99) 566, PG. 580; STANDARD CONSOLIDATED DREDGING CONSTRUCTION CO. LTD. VS. KATONECREST NIG. LTD. (1986) 5 NWLR (PT. 44) 791, PG. 799.?
Where these issues are identified they must be carefully distilled to avoid prolixity or proliferation. The wisdom in this was explained in IWUOHA VS. NIPOST & ANOR. (2003) LPELR-1569 (SC) where Tobi, JSC held:
?Prolixity of issues formulated is not a merit as it is more likely to obscure the core issues to be determined. Multiplicity of issues tends to reduce most of them to trifles. Issues formulated must have the content and character of issues and should be based on substantial law or fact rather than on numerous trifling slips. Appeals are not won on large number or quantity of grounds of appeal and issues. On the contrary, appeals are won on the quality of the content of grounds of appeal and issues?.

?In the instant case, the six (6) issues framed by the Appellant from their colouration could have been compressed to a more concise format. This notwithstanding, the issues as set down will be considered duly in line with the Court?s determination to do substantial justice. The Respondent in the Respondents? brief has adopted these six (6) issues for determination. These issues are therefore set down for the determination of this appeal. I shall start with Issue One.

ISSUE ONE
This issue is whether cash deposits and cash withdrawal transactions between a customer (Appellant) and a bank (Respondent) represented by vouchers stamped and confirmed by the Respondent can be used for reconciliation purposes and determination of obligation between the disputant parties particularly where the bank (the Respondent) refused to issue a statement of account when demanded by the customer (Appellant).

?The Learned counsel for the Appellant in his argument on this issue submitted that it is a well known fact that where a bank intends to establish indebtedness of her customer, it is usually done through entries in the books of the bank reproduced as statement of account. That the entries in the banks? book are made up from transactions between the customer and the bank. That is also a well known fact that for every transaction between a banker and a customer, the customer is given a record or confirmation slip confirming such transaction.

That where there is a dispute between the customer and a banker on issue of outstanding balance in the customer?s account, each entry/transaction in the customer?s account is reviewed by both parties under a reconciliation exercise. He relied on the case of AKANMU VS. CO-OPERATIVE BANK PLC (2006) 2 NWLR (PT. 963) PG. 82 @ 85 R1.

?The Learned Counsel submitted further that facts not categorically denied, debunked or controverted is deemed admitted. That the Respondent in the Amended Statement of Defence filed on 21st May, 2013 never controverted, denied or debunked paragraph 12, 16, 17, 17a and 18 of the Amended Statement of Claims, paragraph 15 of the Appellant written deposition filed on 15th March, 2010 and paragraphs 8, 9 and 10 of the further written deposition by the Appellant filed on 31st May, 2013. He referred to pages 92 to 113 of the records. That having admitted that the transactions analyzed in paragraphs 8, 9 and 10 of the further written deposition took place between her and the Appellant the result is a conclusive proof of the sum of N4,849,814.28 claimed by the Appellant with interest at the rate of 18% per month with effect from 1st October, 2001 till date of judgment. He relied on the case of NBCI VS. DAUPHIN NIG. LTD. (2014) 16 NWLR (PT. 1432) PG. 90 @ 96-98 R9 & R13.

In addition he submitted that the cash deposit and cash withdrawal transactions between a customer and a bank represented by vouchers confirmed by the bank can be used for verification and reconciliation purposes and for determination of the truth between a banker and a customer, in this case Respondent and Appellant respectively. He urged the Court to resolve this issue in the affirmative and to allow the appeal.

The Respondent?s Counsel on this issue submitted that the records of the bank are sacrosanct. That the entries are highly confidential and presumed to be true representation of the customer?s transaction. That the statement of account is not sufficient explanation of debts and lodgments and that evidence needs be adduced on its contents. Counsel relied on the case of BIEZAN EXCLUSIVE GUEST HOUSE LTD. VS. UHS & L LTD. (2012) ALL FWLR (P. 634) 136, 141. He submitted that the

trial Court properly evaluated the evidence of the Appellant at the Lower Court before finding that the claim of the Claimant for the sum of N4,849,814.28 has not been substantiated. That the subjective computation of his statement of account is unsupportable and unacceptable. He referred to page 256 lines 13-14 of the record of appeal. He also relied on page 119 lines 1 to 20 of the record of appeal and Sections 84(4)(a) (b); 85(5)(a) (c) of the Evidence Act. He submitted that a claimant must succeed on the strength of his own case and not on the weakness of the Defendant?s case. He relied on the case ofARAF VS. ONYEDIM (2012) ALL FWLR (PT. 625) 265, 276.

That the argument of the learned Counsel for the Appellant does not flow from the Record of Appeal. He urged this Court to resolve issue one in favour of the Respondent and to dismiss the appeal.

Let me for the sake of clarity say that record keeping is one of the foremost responsibilities of a bank and a customer coming to patronize a bank knows as much that the bank will keep records of every of their transactions. In fact, the Banker Customer relationship usually commences with the opening of an account in the name of the customer. Every financial transaction of the customer in any bank is usually rooted through the Customer?s Account with the bank. Every cash deposit and cash withdrawal transaction between a customer and a bank are always carried out in the account of the customer with the bank. This is why in Section 51 of the Evidence Act, 2011, entries in books of accounts or electronic records regularly keep in the course of business are admissible whenever they refer to a matter into which the Court has to inquire. It is trite that the usual way of proving a debt by a bank is by putting in the statement of account or secondary evidence thereof where it is admissible. See ASIKPO VS. ACCESS BANK PLC (2015) LPELR-24845 (CA). This is apt because there is no debt that is ascertainable if it is not documented by the bank.
?Usually, from human experience when parties consummate a contract involving debt there is no rigours or bitterness while the parties are open, transparent and forthright in keeping to the terms of their agreement. The moment something goes wrong, an issue emerges as to how to fulfill the terms of the agreement of the parties. When such a moment comes, the Court as an umpire must scrutinize the relevant books and documents connected with the debt to ascertain the nature of the debt, the tenure of the debt and the repayment performance of the debtor. The best and easy way of ascertaining all these is for the parties to lay bare before the Court all the documents relating to the debt.
In the instant case, the debt in focus is the overdraft facility granted the Appellant by the Respondent?s Bank. The contest at the Lower Court was whether the debt is remaining unpaid and what quantum of the debt is left unpaid of the debt. And what was the interest rate charged and the facility used as collateral.
From the evidence before the Lower Court, the parties agreed as to the grant of the overdraft facility. They also agreed that it was covered by a legal mortgage. In practice, a legal mortgage is held by the Mortgagee (the Lender) as security for the debt and other liabilities to the bank. If the secured debt is not paid when due the Mortgagee can take possession of the property and sell it to recover the loan or the overdraft as attempted in the instant case. From the facts before the Court the parties had in place the necessary infrastructure for the establishment of what is outstanding debt. What was crucial is the proof of each of the parties as required by law their respective position. To come to the question posed on this issue, the law is clear as parties pointed out that for a bank to proof the debt of a customer the bank must bring forward the statement of account of the customer and the entries therein must be proved by the consistent showing of the witnesses for the bank evidence both documentary and oral evidence explaining clearly entries therein particularly where the debt is constituted largely by interest charges to show how the overall debit balance was accrued out. See the case of HADYER TRADING MANUFACTURING LTD. & ANOR. VS. TROPICAL COMMERCIAL BANK (2013) LPELR – CA following the earlier decisions in COOPERATIVE BANK LTD. VS. OTAGBE (1980) NCLR 215; YUSUF VS. AFRICAN CONTINENTAL BANK (1986) 1-2 SC; HABIB NIG. BANK LTD. VS. GIFTS UNIQUE (NIG.) LTD. (2004) 15 NWLR (PT. 896) 405 SC, 49. It follows therefore that for the Appellant to rely on cash deposit and withdrawal transactions in the bank, the slips etc. must be tendered and properly directed by the Plaintiff to proof the claim and not for the Plaintiff to dump them before the Court to pick and choose. These ones cannot also take the place of Statement of Accounts which is the comprehensive index of all transactions by the parties in respect of the Bank Accounts operated by the Appellant. The position of the law is strictly that in order for a claim of debt outstanding in a customer?s account with its bankers to succeed, the banker has to prove how the debit balance claimed from the customer was arrived at. In doing this the bank must put in evidence the statement of account and adduce evidence to explore the contents of the exhibit. See the case of BILANTE INTERNATIONAL LTD. VS. NIGERIAN DEPOSIT INSURANCE COOPERATION (2012) 15 NWLR (PT. 1270) 407. The record of every transaction is with the Bank and not the customer. The customer may have some vouchers or receipts of his transaction at the bank where there is a dispute and a customer feels that the documentation at the bank as revealed by the statement of account is faulty, a customer can genuinely use such in his own case in Court and the Court evaluating the evidence will determine if the record punctures the integrity of the statement of account produced by the bank. Any record in the possession of a customer which can assist him in his own case will definitely be entertained by the Court. The Learned Counsel for the Appellant had argued that his pleading at paragraph 18 of his amended statement of claim is to establish details of cash lodgment and cheque withdrawals. The lower Court stated that the Appellant did a subjective computation of the statement of account. That it was unsupportable and unacceptable. The responsibility placed on the Respondent is to generate and produce the Statement of Account of the Appellant. If it fails in this responsibility as is prevalent in the instant case, the option for the Court in the interest of justice, is to look into the evidence produced by the Plaintiff in that regard and resolve the issue. Since there was no complete statement of account tendered by the Respondent, the lower Court has no reason to turn down the evidence and computation placed before it by the Appellant. Issue 1 is therefore resolved in favour of the Appellant.

ISSUE TWO
This issue whether the criteria of proving libel are the same with that of proving slander in defamation of character matters.

In respect of this issue the Appellant canvassed that he pleaded libel and led evidence to prove elements of libel. He canvassed that he proved by Exhibits J and K that the publications made by the Respondent were defamatory of the Appellant. That the publication was wrong because as at 23rd March, 2001, the Appellant alleged he was not owing the Respondent. That the publications were defamatory. He urged the Court to hold that libel from the facts was proved and that the Lower Court ought to have declared so.

The Respondent maintained that the trial Court was in order to have held that the Appellant did not prove his claim for libel.

Libel has been clearly defined in many authorities of this Court and the Supreme Court as the publication of false and disparaging matter against a person to a third party. The essential ingredients of libel are six. They are:
1. The words complained of must have been written;
2. The publication must be false;
3. The words must be defamatory and or convey defamatory imputation;
4. The words must refer to the Plaintiff.
5. It must be the Defendant that published the words;
6. Onus is on the Plaintiff to prove that he was the one referred to in the alleged libel.
See the cases of ESENOWO VS. UKPONG & ANOR. (1999) LPELR-1166 SC; GUARDIAN NEWSPAPERS LTD. & ANOR. VS. REV. PASTOR C. I. AJEH (2011) 10 NWLR (PT. 1256) 574; ILOABACHIE VS. ILOABACHIE (2005) LPELR-1492 SC; SKYE BANK & ANOR. VS. AKINPELU (2010) LPELR-3073 (SC).
In our law, it is one thing to assert and it is another to prove the assertion. For there to be libel found the Plaintiff must prove the ingredients of the offence. The Plaintiff above all must establish the fact that the publication was injurious to his reputation or calculated to expose him to public hatred or ridicule. If the Plaintiff finds that his reputation has been injured he must place before the Court facts that his reputation has been thus injured by the publication authored by the Respondent. The key consideration in a claim of libel such as in the instant case is that the defamatory statement was not only published but that it lowered him in the estimation of right thinking members of the society or it exposed him to hatred, ridicule or contempt or that it injured his financial credit. See the case ofSKETCH VS. AJAGBEMOKEFERI (1989) 1 NSCC 346. The Court below on this issue of libel held that the Appellant did not prove the ingredients of libel. A look at the record before the Lower Court will show that the Appellant as Plaintiff was able to establish that there was publication in two newspapers. At page 47 of the Record of Appeal is a copy of the publication. It reads:
SALES NOTICE
On the instruction of the Mortgagee, First Bank of Nigeria Plc., the property described hereunder will be sold by private treaty from 17th ? 18th December, 2002.
PROPERTY:
No. 3 Mungo Park Road, Ikot Ekpene.
A large Bungalow comprising of Nine Bedrooms with Boy?s Quarters.
TITLE DOCUMENTS:
(i) Direct Legal Mortgage dated 13th May, 1997 and registered as No. 57/57/104 Lands Registry, Uyo.
(ii) Certificate of Occupancy dated 20th January, 1995 and Registered as No. 41/41/73 Lands Registry, Uyo.
MORTGAGOR
AKPAN BRENDAN NICODEMUS
IKOT EKPENE BRANCH CUSTOMERS
CONDITIONS OF SALE:
1. There shall be a reserved price for the property;
2. The highest bidder shall be the purchaser;
3. The mortgagee reserves the right to its absolute discretion to cancel sale at any time without further notice;
4. The sale is subject to the consideration and approval of the mortgagee.
For further details contact:
Chief C. O. Onuzurike
Licenced Auctioneer
5 Ohafia Street,
Umuahia.
This publication on the surface cannot be said to be libelous. It requires an evidence of some sort of innuendo suggestive of the fact that it has brought the Appellant?s reputation down or ridiculed him before it can clearly be said to have passed the test of libel. The Court below did not find any libel proved and since that finding of fact is not perverse, it cannot be reversed by this Court. I hold that in a situation where a customer mortgaged his property for an overdraft facility from a bank and the bank under the mortgage take steps when they reasonably believed the Appellant was yet to pay back the overdraft commitment it will require extra evidence of some kind of malice to hold the bank liable for libel. This is more apt where as in the instant case there is no demeaning words on the face of the publication. I hold therefore that this issue two is resolved in favour of the Respondent.

ISSUES THREE AND FIVE
These issues are whether the content of an admissible document can be contradicted by the content of an inadmissible document; and whether there was any evidence from the Respondent to contradict the case of the Appellant or create any weight in the other side of the scale of justice against the case of the Appellant.

On these issues the learned Counsel for the Appellant canvassed that the Appellant pleaded 18% interest rate for the overdraft facility granted the Appellant by the Respondent.

The learned Counsel canvassed that the Appellant in his amended statement of claim filed on 27th January, 2010 pleaded at paragraph 10 that the overdraft facility was approved at the interest rate of 18% per month. That the Respondent tendered Exhibit M which also confirm the same 18% rate of interest governing the overdraft facility. That at the trial Court both parties confirmed 18% per month as the interest rate on the overdraft facility granted to Appellant by the Respondent. He pointed out that the Respondent in answer to the said paragraph10 of Amended Statement of claim never categorically deny the rate of interest at paragraph 13 of her amended statement of defence filed on 21st May, 2013. He submitted that evasive denial as done by the Respondent at paragraph 13 of their Amended Statement of Defence amounts to admission. He relied on the cases of NNPC VS. FAMFA OIL LTD. (2012) 17 NWLR (PT. 1328) PG. 148 @ 163 R13; OPARAJI VS. AHIHIA (2012) 4 NWLR (PT. 1290) PG. 266 @ 269 R1; WEMA BANK PLC VS. LIT (NIG.) LTD. (2011) 6 NWLR (PT. 1244) PG. 479 @ 485 R6.

The learned counsel in addition contended that Respondent introduced another document while filing written address on 28th November, 2013. That the document was not before the Court throughout the trial proceedings. That it is this new document introduced through written address that the trial Court looked at and countenanced 22% as the interest rate of the Respondent governing the overdraft facility. He conclusively said that the document containing 22% interest rate was smuggled into the Court’s file through an unknown procedure.

The Respondent contended that the Appellant failed to refer the Court to the supposed admissible document and the inadmissible document. That the Appellant?s argument on this was vague. He pointed out that the Appellant in his evidence at page 25 and his paragraph 10 of the Appellant?s amended statement of claim admitted that the Respondent increased the rate from 18% to 28%. He urged the Court to dismiss this appeal on this ground.

On this issue, it is very clear that the Appellant and the Respondent had an agreed interest rate for the overdraft. The Appellant in his amended statement of claim paragraph 10 at page 5 of the record averred as follows:
10. The Plaintiff further states that, Defendant unilaterally increased the interest rate from 18% to 28% without the consent of the Plaintiff. The Plaintiff states that the interest rate agreed upon by the parties in respect of the overdraft facility was 18% per annum on the overdrawn balances only. The regulated interest rate for all the Commercial Banks was 21% per annum as per the Central Bank of Nigeria guidelines for the period of 1997 to 2002.

To give life to this averment the Appellant in his evidence at page 25 of the record said at paragraph 12 as follows:
12. That the Defendant increase the rate of interest from the agreed rate of 18% to 28% and above kin some months without strict compliance with the Central Bank of Nigeria interest limit of 21% in force as at that time.

The Appellant from the inception of his case had his complaint against the manipulation of the agreed interest rate by the Respondent. The Respondent he testified increased the interest from 18% to 28% contrary to the Central Bank of Nigeria instruction as to 21% interest required at the relevant time. The issue of charging interest rate by the Banks is always at the heart of every controversy relating to overdrafts and loans. In the case of UBN PLC VS. AJABULE (2011) LPELR-8239 (SC), Adekeye, JSC held that:
?Section 15 of the Bank Act, 1969 mandates all licensed banks to charge interest rates on advances, loans, credit facilities or deposits in accordance with the Central Bank of Nigeria Guidelines on minimum and maximum rates of interest. Where the terms of the agreement between the bank and the customer are clear with regard to the agreed rate of interest and there is no provision for variations, the Bank cannot vary the agreed interest rate of accord with the Guidelines of the Central Bank on interest rate. The law will always frown at any arbitrary charges by banks on the account of their customers.?
In the case of EKONDO COMMUNITY BANK LTD. VS. ANIETING (2013) LPELR-21139 (CA). This Court elaborated on this vexing issue as follows:
?In law, a bank or other financial institution has the right to charge interest on loans or overdraft facilities granted or given to a customer at the rate fixed by the CBN, trade or agreed by the parties to the facilities. See AGBABIAKA VS. FBN PLC (2006) ALL FWLR (326) 253; A. T. (NIG.) LTD. VS. UBN PLC (2010) 1 NWLR (1175) 360; HABIB BANK LTD. VS. GIFTS UNIQUE NIG. LTD. (2005) ALL FWLR (241) 234 @ 257; EDILCO NIG. LTD. VS. UBA PLC (2000) FWLR (21) 792. However, where a facility is granted to a customer and by agreement, the interest rate to be charged was fixed for the facility, a bank or financial institution has no right to unilaterally change, vary or after the rate of the interest to be charged on the facility without consultation and/or consent of the customer. See NBN LTD. VS. ARISON TRADE & ENGINEERING CO. LTD. (2006) ALL FWLR (326) 377; UBN LTD. VS. SAX NIG. LTD. (1991) 7 NWLR (207) 227; UBN LTD. VS. OZIGI (1991) 2 NWLR (PT. 176) 677; ADIBI VS. FBN LTD. (1986) 2 CA (PT. 11) 247; SJ MASKIN VS. OLAOGUN ENT. (1999) 10 ? 12 SC 46. The bank is bound by the interest rate agreed to with the customer and cannot change a rate different from the one contained in their agreement without the consent or at least knowledge of the customer. Where however the Bank notifies a customer of its change or intention to change the interest rate fixed by their agreement and the customer did not react or object to the change, he would be deemed to have accepted and consented to the change by conduct. See ISHOLA VS. SGB LTD. (1997) 2 NWLR (488) 405. There must be evidence by the Bank that the customer was duly notified or informed of the unilateral change of the rate of interest and the absence of his reaction or objection to it before such a new rate of interest can legitimately be charged on the facility by the bank. See CONSTRUCTION IND. LTD. VS. BANK OF THE NORTH (1968) NLCR, 81; BARCLAYS BANK VS. HASSAN (1961) ALL NLR, 836; BANK OF THE NORTH VS. ONIYO (2002) FWLR (129) 1492 @ 1507; OKOLO VS. UBN LTD. (1998) 2 NWLR (539) 618?. Per Garba, JCA (Pp. 17-18, paras. E-G).
The law is therefore settled that inasmuch as banks in Nigeria have the right and authority to lend out and charge interests, the law does not grant them the latitude to charge interest arbitrarily. The rate of interest to be charged must accord with the rate the Central Bank of Nigeria sets. When there is any need or situation that requires a change of the interest already charged, the Bank must get back to the customer and let the customer know why interest rate earlier charged for the facility need to be changed and must be certain as to the new rate. The issue is very direct and simple. Every loan or overdraft facility is always a subject of agreement between the parties. In issues of agreement the parties must be ad idem and this is what qualifies it to be called an agreement.
Since issue of charging of interest rate is statutory, the customer at the end of the day may not be able to sto the bank from topping up or reducing (which is very unlikely in our clime) the rate of interest in line with the monetary policy of the Central Bank of Nigeria, but it is significantly fundamental that before an existing interest rate is altered, there must be in the original agreement of the parties a clause that clearly specifies that interest rate could change during the tenure of the facility and the customer must be duly informed. Where there is no clause on the agreement of the parties to make room for variation of interest rate, the bank cannot introduce it unilaterally or arbitrarily as it will be tantamount to shifting the post after the game has commenced.
In the instant case part of the cause of action of the Appellant is that the Defendant was changing the interest rate originally agreed to be 18% to as high as 28% over and above the Central Bank of Nigeria rate of 21% at the relevant period. The Respondent who is laying claim to that varied interest rate and not the Appellant had the duty to prove concisely how it came by the interest chargeable on the overdraft it advanced to the Appellant. See also the case of OLADEMO VS. LAGOS BUILDING INVESTMENT CO. LTD. (2010) LPELR-4735 (CA) where Galinje, JCA (as he then was) held:
While this Court recognizes the right of money lenders and banking institutions to recover their accumulated interest charges as part of the debt due to them by debtor customers, such interest rates must be publicly displayed to their customers and when the need arise, must be proved strictly. See NIGERIAN MERCHANT BANK PLC VS. AIYEDUN INVESTMENT LTD. (1998) 2 NWLR (PT. 537) 221; UBN LTD. VS. OZIGI (1991) 2 NWLR (PT. 176) 677. In FBN PLC VS. UWADA (2003) 2 NWLR (PT. 805) 485, where the Appellant contended that it had a right under a written agreement to charge interest on the overdraft, but failed to produce in evidence the instrument which it claimed evidenced the transaction, and the rates chargeable within the period, this Court, per Oduyemi JCA held: -?Section 15 of the Banking Act which came into operation on 7th February, 1969 mandates all licensed Banks to charge as the rate of interest on advances, loans, credit facilities or paid on deposits only rates linked to minimum rediscount rate of the Central Bank subject to stated minimum and maximum rates of interest which were approved shall be the same for all banks subject to the proviso in Sub-section (1) This is what is commonly called the Central Bank Guidelines?. It is clear that not only had the Appellant failed to show that it had a right to charge the interest which it charged on the overdraft; it is obvious that whatever rate was being charged by the Appellant on the overdraft has not been linked to the Central Bank Guidelines rate of interest as required by law. The charge of interest was therefore unlawful.?
In the instant case, the Court below held at page 252 of the record that there is no evidence before the Court to know the terms and conditions governing the legal mortgage while the Claimant said it was 18% the Defendant said it was 22%. The Lower Court before coming to that conclusion did not advert its mind to the letter of the respondent to the Appellants approving the overdraft which was admitted as Exhibit A and the letter of approval of limits at page 68 of the record. There it is indicated that the interest rate charged for the overdraft is 18%. The Appellant have been able to show that the interest rate charged for the overdraft facility is 18%. The Respondent who is talking of 22% or 28% is the one who has not established how she came about charging the rate. The direct legal mortgage which is supposed to be the main contract agreement of the parties was not tendered by the respondent. What this means is that having regard to the state of our law which requires that anyone who asserts must prove his assertion on the balance of probabilities in a civil claim the Appellant had established as required that the interest rate was 18% this cannot cause any confusion mentioned by the trial Court.
That 18% interest rate as established is what should govern the parties. Where there is any change of interest rate, the Respondent making the change ought to justify it as to why the change and as to whether the Appellant customer was party to it or informed of it.
From the foregoing therefore issue three is resolved in favour of the Appellant.

?On issue five, there is nothing placed by way of evidence to contradict the claim of the Appellants that he had exited the overdraft facility. Issue five is therefore also resolved in favour of the Appellant.

ISSUES FOUR AND SIX
These issues are on the failure of the Court below to resolve issue of wrongful withdrawal and that of whether it is the duty of the Appellant to prove interest paid on the overdraft facility.
The Appellant had in this case alleged he was overcharged on the repayment of the overdraft facility. The Appellant had established that the Respondent refused to accede to his request for his statement of account. The request for statement of account was not fully satisfied by the Respondent. This was not done as the Respondent omitted to issue the statement for the period up to November, 2000. In the face of the excellent proof by the Plaintiff on his monetary claims arising from this shoddy way the Respondent messed up the account of the Appellant, one expects the Court below to enter judgment for the Appellant on his reliefs (a), (b), (c), (d), (e), (f), (h), (j), (k) and (l), as they were duly proved.
Reliefs (g) and (i) relating to defamation were the only ones not proved.

?From the foregoing I hold that there is some merit in this appeal. The appeal will be allowed in part.
The Respondent cross-appealed. I will therefore look into the cross appeal now.

CROSS APPEAL
The notice of Cross-appeal of the Respondent was filed on 30th October, 2017. The Cross-Appellant filed the Cross-Appellant?s brief on 30th October, 2017. The Cross-Respondent brief on 13th December, 2017.

On 13th December, 2017, the Cross-Respondent filed a notice of preliminary objection. I shall consider this notice of preliminary objection first.

The preliminary objection was premised on the following grounds:
1. A cross appeal is a distinct and separate protest against the decision/judgment of the trial High Court and has a procedure prescribed by the law and Rules of the Court;
2. The Cross Appellant is trying to appeal against the final decision of the trial High Court delivered on 17th February, 2014 over three (3) years ago but failed to obtain leave of the Honourable Court for extension of time;
3. The Appellant/Cross-Respondent applied for leave in CA/C/32M/2015 and same was granted on 22nd October, 2015 for Civil Appeal No. CA/C/230/2015 struck out on 12th May, 2016 on grounds of objections raised by the Cross-Appellant;

4. The Appellant/Cross-Respondent also applied for leave in CA/C/286M/2016 and same was granted on 16th March, 2017 for the instant appeal and the Respondent/Cross-Appellant made no effort to apply for leave to appeal against the judgment delivered on 17th February, 2014;
5. The Respondent/Cross Appellant who opposed Appellant/Cross Respondent application for leave to appeal in CA/C/32M/2015 on 23rd June, 2015 and had filed Respondent brief of argument in CA/C/217/2017 on 15th September, 2017 defending the judgment of the trial Court now wants to appeal against the same judgment;
6. The grounds of cross appeal as couched in the notice of cross appeal are incompetent.

This objection to the cross-appeal was argued by the Cross-Respondent in the Cross-Respondent?s brief at page 3. The main complaint of the objector is that the cross-appeal was filed over three years after the judgment of the Court below without leave of Court. The Cross-Appellant did not file any reply to the preliminary objection.

The focus of the Cross-Respondent was on the fact that the cross-appeal was filed out of time without leave. The leave as used here could only mean the permission of the Court extending time to file the cross-appeal. The judgment of the Court below was delivered on the 17th day of February, 2014.
The cross-appeal was not filed until 30th October, 2017. By this fact, for the Cross-Appellant to have the authority to cross-appeal, he must seek the order of this Court extending time to appeal. Failing that the cross-appeal will be incompetent.
A cross-appeal it is well known, is separate and distinct from an appeal of the Appellant though they are heard together. In the case of LAFIA LOCAL GOVERNMENT VS. THE EXECUTIVE GOVERNMENT NASSARAWA STATE (2012) LPELR-20602 (SC), Rhodes-Vivour, JSC held that:
?A cross-appeal can only be filed by a Respondent seeking to correct errors in the judgment or to set aside a finding which is crucial and fundamental to the case. A cross-appeal is not filed where the Respondent seeks a complete reversal of the whole case. See AJAYI VS. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (PT. 507) PG. 231; ELIOCHIN (NIG.) LTD. VS. MBADIWE (1986) 1 NWLR (PT. 14) PG. 47. Put in another way, a cross-appeal is an appeal by a dissatisfied Respondent who agrees with the judgment but wants the judgment confirmed or varied on other grounds.?
It needs be said that a cross-appeal being an appeal must be filed within the time specified by Section 24 of the Court of Appeal Act, 2004. If the Cross-Appellant is late in filing the appeal he must get the leave of the Court of Appeal for time to be extended before he can approach the Court with a belated appeal. In the instant case, the Cross-Appellant was late in filing the cross-appeal.
The Cross-Appellant from the narration of the Cross-Respondent had obtained leave to cross-appeal in Appeal No. CA/C/230/2015. That appeal was struck out by this court. Thereafter, the Cross-Respondent sought for and obtained leave to bring this Appeal No. CA/C/217/2017. The Cross-Appellant filed his processes as a Respondent but along the line decided to file a cross-appeal which he did on 30th October, 2017. This he did without any request for extension of time. It is very clear and obvious that this cross-appeal filed out of time without the leave of this Court is incompetent. The cross-appeal being incompetent has no life. The preliminary objection of the Cross-Respondent succeeds.
This cross-appeal is incompetent. It is hereby struck out.

From the foregoing therefore and having earlier found that this appeal succeeds in part the order that is appropriate to make is as follows:
i. A declaration that the Defendant/Respondent is vicariously liable to refund the sum of N1, 078,065.00 wrongly misappropriated from the Appellants? account by servants/Agents of the Defendant/Respondent.
ii. A declaration that interest rate of 18% per month governs the overdraft transaction between the Appellant and the respondent.
iii. An order of the Honourable Court directing the refund of the Claimant?s money in the sum of N4, 849,814.28 custodied by the Defendant with interest at the rate of 18% per month from 1st October, 2001 till the date of judgment of this Court; and thereafter at 10% till full liquidation.
iv. An order of the Honourable Court directing the Defendant to refund the sum of N1, 078,065.00 wrongly misappropriated from the Appellants? account to the Appellant with interest at 18% per month from 1st October, 2001 till date of judgment.

Let it be noted expressly that relief (iv) is what the Appellant claimed in his relief (h) at the Lower Court. The interest payable was localized to that sum of N4, 849,841.28 and not to the entire judgment.

It is certain therefore that reliefs 1, 2, 3 and 4 of the claim as stated above are hereby granted and I order as prayed.
Parties are to bear their respective cost of this appeal.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I read before now the draft of the lead judgment delivered by my learned brother. S. J. ADAH, JCA.
I agree with his reasoning and conclusion therein that this appeal succeeds in part. I also strike out the cross appeal for being incompetent.
I abide by the consequential order made by ADAH. JCA in the lead judgment. including the order as to costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.
I equally find merit in this appeal and I accordingly allow it in part while striking out the cross-appeal for being incompetent. I adopt the consequential orders in the lead judgment.

Appearances

For Appellant

AND

For Respondent