MR. FOLORUNSHO OGBOJA v. ACCESS BANK PLC (2015)

MR. FOLORUNSHO OGBOJA v. ACCESS BANK PLC

(2015)LCN/7869(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of May, 2015

CA/AK/38/2013

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER AN APPELLATE COURT MUST CONSIDER ALL ISSUES FOR DETERMINATION BEFORE IT AND THE EXCEPTION

It is trite law that an appeal court must consider all issues for determination raised before it except where it is of the view that a consideration of one or more issues is enough to dispose of the appeal. In such a situation, the court may adopt such issues as may dispose of the appeal and may not be bound to consider all the other Issues he considers irrelevant and unnecessary.
The court may disregard for instance where an appellant formulated 5 Issues and adopt a Respondent’s lone or 2 issues. See Tunbi v. Opawale (2000) 2 NWLR (Pt. 644) p.275; Anyanduba NRTC Ltd (1992) 5 NWLR (Pt. 243) 535; Okonji v. Njokama (1991) 7 NWLR (Pt. 202) 131. In some case, some issues may be subsumed in another or other Issues. So there is flexibility in the matter. See Kingsley Emeka v. State 59 NSCQR 125 @ 163-164 per Okoro, JSC. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

PRACTICED AND PROCEDURE: WHETHER IT IS SUFFICIENT THAT THE FACTS OR EFFECT OF THE GUIDELINES OF A CBN BEING A DOCUMENT, IS PLEADED

The law is that the Guidelines of the CBN, being matters encapsulated in a document, it is sufficient that the facts or effect of such document is pleaded. Once pleaded, the requirement of reference to it in reliance would have been met. In the same, the content of the said document must not be pleaded specifically before evidence of its content can be led. It is, therefore sufficient if the facts relating to such a document is pleaded; and if it is relevant to the case, the document is admissible in law. See Tangale v. Fawu (2001) 17 NWLR (Pt. 742) page 293 @ 302-303. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

APPEAL: A COUNTER-CLAIM; WHETHER A COUNTER-CLAIMANT MUST PROVE HIS CLAIM BEFORE HE CAN OBTAIN JUDGEMENT

A counter-claim is a separate, independent and a distinct action. The counter-claimant must prove his claim before he can obtain Judgment. See JERIC NIG. LTD v. UNION LPELR SC 72/1998; (2000) 15 NWLR (Pt. 691) 447; R. Benkay Nig. Ltd. v. Cadbury (Nig) PLC (2006) 6 NWLR (Pt. 576) 338s. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

COURT: DUTY OF A COURT; WHETHER IT IS THE FUNCTION OF THE COURT TO INVESTIGATE

In First Bank of Nigeria Plc v. Mamman Nigeria Ltd. (2001) FWLR (Pt. 31) page 289 @ 2906 paragraph D-F it was held thus:-
“Investigation is not the function of a court. Therefore it is not the duty of the court to embark on a voyage of discovery. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

MR. FOLORUNSHO OGBOJA
(Trading as Sir Afalo Enterprises) Appellant(s)

AND

ACCESS BANK PLC Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice Ondo State sitting in Akure delivered on the 5th December, 2012 wherein it entered Judgment against the Plaintiff and in favour of the Defendant/Counter Claimant in terms of the Defendant’s counter claim. Appellant herein was the Plaintiff/Defendant at the court below.

The Appellant was a customer of the respondent Commercial Bank who duly applied for overdraft facilities from the Respondent, completed the acceptance forms though the forms had modifications from the previous ones, but they were in any case signed Appellant paid all the principal sums and interest as in the signed forms of agreement; but defaulted on the principal facilities and interest for a whole year in respect of the renewed facility on the ground that it was fraudulently signed/induced as he was not brought into the picture of the changed conditions on terms thereof. The Debt mounted and in interest and charges.

The customer/Appellant herein as plaintiff sued for reliefs as contained in the record of appeal. They are reproduced verbatim thus:
“The Plaintiff’s claims as per his Amended Writ of Summons endorsed on paragraph 33 of his Amended Statement of claim filed on the 27th of September, 2012 are as follows:
1) A DECLARATION that the defendant cannot unilatera0lly increase or charge above the rates of interest agreed upon by the parties which were 22.5% per annum on facilities granted between 14/08/07 and 27/12/07 and 23% per annum on facilities on 12/1/09 without the consent of the plaintiff.
2) A DECLARATION that all the rates of interest charged on the facilities granted to the plaintiff by the defendant above and outside the agreed rates is illegal, null and void.
3) AN ORDER for the refund/payment of N1,072,421.75 to the plaintiff by the defendant being the excess charges on the credit facilities granted to the plaintiff by the defendant.
4) 100% penalty for failure to refund the excess charges within 14 days after notifying the defendant of the charges in accordance with the Central Bank Regulations 2004.
5) AN ORDER directing the defendant to produce an accurate statement of account of the plaintiff from March, 2007.
6) N5 Million damages for breach of contract.
7) A PERPETUAL INJUNCTIVE ORDER restraining the defendant, its agent, privies, servants, representative or any person however so called from selling either by public auction or private treaty the plaintiff’s property situated or lying at Plot 14, Block E, 3rd Avenue, Iralepo Layout Akure covered by a Certificate of Statutory Right Occupancy registered as 42/42/274 at the land registry office Akure.
The defendant filed its amended Statement of Defence and counter-claim to the plaintiff’s original statement of claim of the 20th of August, 2010. The defendant under paragraph 28 of its amended statement of defence and counter-claim, counter-claimed against the plaintiff as follows:
a) The sum of N1,729,938.84 inclusive of interest being the outstanding indebtedness of the plaintiff to the defendant/counter-claimant at the request of the plaintiff which payment is due in spite of repeated demands,
b) The defendant/counter-claimant claims on the said sum of N1,729,938.84 at the rate of 22.5% interest from the 12th of January, 2010 until judgment is given and 10% thereafter until final liquidation of the debt,
c) An order authorizing the defendant to sell the 1st plaintiff’s property known as Plot 42 Block E, 3rd Avenue, Iralepo Layout Akure covered by C of O registered as 42/42/274 at the Lands Registry’s Office, Akure pledge as collateral for the facility and
d) The sum of N2 million only as general damages for breach of contract on the credit facility granted by the defendant/counter-claimant to the plaintiff, which credit facility has lapsed/due for payment since January 13th, 2010.
The plaintiff filed an Amended reply to the defendant’s statement of defence on the 28th of September, 2012.
The plaintiff testified and called one other witness while only one witness testified for the defence. The plaintiff and his witness tendered the following documents which were admitted in evidence.
1) Exhibit 1 was financial report by Forensic Consulting (consulting firm to the plaintiff) dated the 16th of November, 2009 which is a review of the financial relationship between the parties.
2) Exhibit 2 was certified true copy of the CBN Guide to bank charges.
3) Exhibit 3 was the certified true copy of the CBN Monetary, Credit, Foreign Trade and Exchange Policy Guidelines for 2002 Fiscal year.
4) Exhibit 4 was certified true copy of the CBN Monetary, Credit, Foreign Trade and Exchange Policy Guidelines for 2002 Fiscal year.
5) Exhibit 5 was CBN Prudential Guidelines for Licensed Banks dated the 7th of November, 1990.
6) Exhibit 6 was letter dated the 14th of August, 2007 written by the defendant which is the offer letter for renewal and enhancement of facility from N500,000.00 to N1 million.
7) Exhibit 7 dated the 12th of January, 2009 written by the defendant to the plaintiff called letter of N1 Million overdraft facility.
8) Exhibit 8 was a letter dated the 1st of July, 2009 written by the plaintiff’s counsel to the defendant complaining about excess and illegal charges on the account of the plaintiff.
9) Exhibit 9 was another letter dated the 27th of August, 2009 written by the plaintiff’s counsel to the defendant titled Liquidation of outstanding debt.
10) Exhibit 10 was a letter dated the 27th of December, 2007 written by the defendant to the plaintiff titled Offer of renewal of N1 Million overdraft facility.
11) Exhibit 11 is a certified true copy of the Certificate of Statutory Right of Occupancy covering the plaintiff’s property at Plot No. 14 Block E on 3rd Iralepo Layout, registered as No. 42/42/274 at the land registry office Akure.
12) Exhibit 12 was the statement of account of the plaintiff effective from 8th March, 2007 to the 28th of February, 2011.”

The plaintiff lost. Whilst the counter-claim succeeded.

The plaintiff has now appealed and upon the grounds as contained on pages 101-105 of the record.

At the hearing of this appeal, the respective parties adopted and argued their respective Issues as formulated from the grounds of appeal.

Appellant formulated the following 5 Issues, and to wit:
1. Whether the charges in the letters of offer between the plaintiff and the defendant superseded the charges in the Central Bank of Nigeria guide to Banks and therefore not mandatory for the respondent to follow. (Grounds 1 & 3)
2. Whether Exhibits 3, 4 and 5 which are Central Bank of Nigeria Regulations must be specially pleaded before they can be tendered as Exhibits before the trial court. (Ground 2)
3. Whether the Defendant/Respondent is entitled to Judgment on its counter claim based on evidence adduced by it at the counter claim. (This is (sic) covers grounds 4 and 6.)
4. Whether the plaintiff/Appellant proved beyond reasonable doubt the allegation of manipulation of his account which is a criminal offence. (This issue covers Grounds 5).
5. Whether the trial court properly evaluated the evidence of the witnesses inclusive of documentary evidence.

The Respondent, on his part, formulated the following issues for the determination of this appeal.
The Issues are, viz:
1. “Whether Central Bank of Nigeria regulations are laws as contemplated by the Nigeria Constitution so as to make it mandatory to take Judicial Notice of the regulations (covers (sic) Grounds 1)
2. Whether documents not specifically pleaded but admitted in evidence and later expunged by the court as wrongly admitted will occasion miscarriage of Justice.
(This issue covers ground 2)
3. Whether the Respondent adduced credible evidence in proof of the counter claim (Grounds 4 and 6).
4. Whether the Appellant was able to prove the excess charges and the allegation of manipulation of his account beyond reasonable doubt to entitle him to the reliefs sought (Ground 5)
5. Whether the trial court properly reviewed the parties evidence before the court (Ground 7)

The issues of both parties are similar.

ARGUMENTS
Arguing his first Issue, the Appellant submitted that Section 15 of the Banking Act mandates licensed Banks to charge interest on advances, loans, credit facilities, or deposits in accordance with Central Bank of Nigeria Guidelines on maximum and minimum of interest. In this respect, it is submitted that no Bank in Nigeria can act outside this Guidelines and Regulations of the Central Bank of Nigeria. Union Bank of Nigeria PLC v. Alhaji Adams Ajabule (2011) @ 186 par. F-G referred. That these Regulations and Guidelines of the Central Bank of Nigeria have force of law by virtue of Section 60(1)(2) and 64 of Bank and other Financial Institution Act (BOFIA).

That the letters of offer Exhibits 6, 7 and 10 before the trial court are subject to these Regulations. That this fact is expressed in Exhibit 7 and 10; that Exhibits 7 & 10 provided that:
“This offer is subject to availability of fund and to the Rules that the Bank may from time specify.” It was submitted further, that the rate of interest in the letters of offers in Exhibit 6, 7 and 10 were all above the Central Bank of Nigeria Guidelines at the time of the grant of the facilities. That the rates stipulated between March 01, 2009 to September, 2009 was 22%, i.e. 7% above the maximum deposit rate of 15% per annum. Page 3 of Exhibit 1 and Exhibit 5 referred. We were urged to resolve this issue in favour of the Appellant.

ISSUE 2
On this Issue, the Appellant submits that for a document to be admissible, the document of offer cannot supercede the content of the Guides to charges which are mandatory and had force of law vide Banks and other Financial Institutions Act, (BOFIA) and that all commercial Banks in Nigeria are to comply strictly with them. That the Respondent is bound by the C.B.N. Guidelines and Regulation issued out in form of circulars from time to time, hence Exhibits 2, 3, 4 and 5. That they are mandatory and not mere guides.

Section 60(2)(a) of BOFIA states: “Every person or institution carrying on such financial business as are referred to in Section 56 of this Act shall:
(a) comply with the monetary policy guidelines and other directions as Regulations as may be stipulated from time to time by the Central Bank.”

Learned Counsel contended that Exhibit 6 has at paragraph 9(ii) thereof the fact that “all CBN Rules and Regulations are to be strictly complied with and adhered to.”

That inspite of the above, the Respondent did not adhere to all the guide stipulated in the guide to Bank charges which are Exhibits 2, 3, 4 and 5. Instead, that the respondent overcharged interest rate, management fees, processing fees etc, thereby overloading the Appellant’s Account with excess charges as contained in Exhibit 1 which contains the list of excess and illegal charges, which the respondent did not controvert at the trial court, or by Reply when it was communicated to the respondent before the institution of this suit. Page 1 of Exhibit 1 was referred to in support of this argument. That interest rates, Commission on Turn Over (COT), Management Fees and statement reprint fees were excessive and against Exhibit 2 and 4 and that default fee and availment fees were not within the Guidelines for Bank charges stipulated by Central Bank as at the time of the credit facilities granted.

In this regard, the Appellant submits that the letters need not be pleaded but only the facts thereon contained or relating to the document may be pleaded by either of the parties and must be relevant to the case before the court. Tangale v. Fawu (2001) 17 NWLR (Pt. 742) page 293 @ 302-303 referred.

That Exhibits 3, 4 and 5 which are Central Bank regulations and guide to Banks were pleaded and referred to in the amended statement of claim filed by the Appellant on the 28th September, 2012 at paras 17-23, 27, 28, 31, 32, 33(4) on page 16-20 of the record of appeal.

That the pleadings referred to the Monetary Credit Foreign Trade and Exchange Policy Circular No. 37 of January 02, 2004 (Exhibit 3) Exhibit 4 C.B.N. circular called moderation of interest rate dated 31st July, 2002 Exhibit 5 – C.B.N. called prudential guidelines for licensed Banks.

It was submitted that these Regulations do not need to be pleaded specifically, to make them admissible. U.B.N. PLC v. AJABULE (2011) 18 NWLR (Pt. 1) page 152 @ 186 paragraph F-G; UNION BANK OF NIGERIA v. OZIGI (1994) 3 NWLR (Pt. 333) page 385 referred. That the trial Judge was wrong in expunging them from the evidence of the Appellant/Plaintiff and that if they had been considered the court would have arrived at a different consideration.

That reference was made to those exhibits by Exhibit 2, evidence of Appellant and pleading.

That the test to be applied in considering the admissibility of a document is relevancy. That if relevant, even if a document is not pleaded, the court will admit same in the interest of Justice. ANPP v. PDP (2007) ALL FWLR (Pt. 357) page 885 @ 891 ratio 5 refers.

That even if a court admits in admissible evidence, it cannot turn and reject same. Ajaokuta Steel Co. Ltd v. Role (2012) 53 WRN 37 @ 76 lines 40-45.

That this Issue be resolved in favour of the Appellant.

ISSUE 3
Submitted that a counter claim was a separate and distinct claim from the main claim. Being an independent action it must be proved separately and does not depend on the case of the plaintiff for its success.

That the evidence of the counter-claimant’s only witness was discredited under cross-examination by the Appellant; was not credible. That the trial Judge did not review it properly and that if he had done so, he would have arrived at a different decision. That the only witness called by the counter claimant to prove its case did not know how the amount claimed in Exhibit 12 was arrived at. See page 44 lines 1-5 and 15-20 of same page of the Record.

That the only witness by his evidence as reviewed by the trial Judge at page 78 lines 11-16 could not have known that the Defendant was over charging. He did not know how to calculate interest rate. Skye Bank Plc v. Kudoz (2011) 3 WRN page 53 @ 59 ratio 8; Biezan Exclusive Guest House Ltd v. U.H.S. & L. Ltd (2012) AFWLR (Pt. 634) pg.136 @ 141 ratio 9; Bilante v. NDIC (2011) SCM page 141 @ 45.

Submitted on the above authorities, that the defendant now respondent here, ought to demonstrate through oral evidence by an official who is familiar with the account how the debit balance claimed was arrived at.

That the witness, having failed to prove how the amount was arrived at in Exhibit 12, he could not have proved the sum claimed; that the amount claimed as counter claim ought not to have been granted. That the issue be resolved in favour of the Appellant and the counter claim be dismissed.

ISSUE 4
It was submitted that the claimant/Appellant called two witnesses who testified and tendered documents. PW1, a Chartered Accountant, was not controverted in anyway. That the interest rates he testified to uncontroverted were illegal as it was above those in the letter of offer and the CBN regulations. See Okolo v. UBN Ltd (1998) 2 NWLR (Pt. 539) pg.618 @ 632 12.37.

That the above piece of evidence was not challenged and so also was Exhibit 1 – A report of reconciliation of Account of the Appellant with the Respondent.
Kopek v. Ekisola (2010) AFWLR (Pt. 519) pg. 1035 @ 1038 ratio 5.

That the court should hold that manipulation of the Account of the Appellant had been proved as Exhibit 1 and the letters of complaint – Exhibits 8 and 9 were received by the Managing Director of the Respondent Bank and yet no response or denial thereto was made. That the Plaintiff/Appellant had proved:
1. The excess charges alleged.
2. The manipulation of his account and the N5 million damages for breach of contract.

That the claims were pleaded in the amended Statement of Defence and testified to but not considered at the trial court.

That this issue be resolved in favour of the Appellant.

ISSUE 5
On this issue, that the court should interfere with the findings and conclusions of facts arrived at because the court did not evaluate the evidence led and its conclusion was perverse.

That S. 167(d) of the Evidence Act could be invoked to show that the Respondent was withholding evidence, which should be presumed to be unfavourable to it. Musa v. Yerima (1997) 7 NWLR (Pt. II)

That the Respondent/Counter Claimant had a duty to prove its claim and that the tender of Exhibit 12 without more was insufficient. Evidence needed to be adduced on its consent. IEZAN EXCLUSIVE GUEST HOUSE LTD v. U.H.S. & L LTD (2012) AFWLR (Pt. 634) pg. 136 @ 141 ratio 9.

A statement of accounts is not sufficient explanation of debts and lodgments.

Evidence to explain how the debits were arrived at must be led.

That evidence as to how an overall debit balance was arrived at must be led. H.N.B. Ltd v. GIFT UNIQUE NIG LTD (2004) 15 NWLR (Pt. 896) pg. 408 @ 412 ratio 6.

Entries shown in Exhibit 12 must be explained by evidence; that the failure to do so, meant the failure of the counter claim.

That S.51 of the Evidence Act provides that:
“Entries in books of account 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 statement shall not be sufficient evidence to charge any person with liability.”

That the mere production of the Appellant’s statement of account is not sufficient to make him liable. Oral, credible, sufficient, convincing and reliable evidence ought to be led by the respondent in relation to its contents. In First Bank of Nigeria, PLC v. Mamman Nigeria Ltd (2001) FWLR (Pt. 31) page 289 @ 2906 par. D-E, it was held:
“Investigation is not the function of a court, therefore it is not the duty of the court to embark on a voyage of discovery. It was not sufficient for DW1 to dump the ledger card on the court without explaining clearly the entries therein.”

That where there is no proper evaluation of evidence led, it is within the province of the appellant court to evaluate the evidence and to depart from a finding that is at variance with the evidence led.
First Bank of Nigeria Plc v. Mamman Nig Ltd (supra); Union Bank of Nig Plc v. Ozigi (1994) 2 NWLR (Pt. 333) page 385; Fatunde v. Onwoa Mamam (1990) 2 NWLR (Pt. 132) pg. 322 @ 330 par D and 333 paragraph G.

That this issue be resolved in favour of the Appellant.

Finally, it was contended that the Judgment of the trial court is perverse and had occasioned a miscarriage of justice.
LAGGA v. SURHUMA (2008) 50 WRN; Isu v. Uche (2010) 13 WRN and Olaoye v. Adewumi (2013) 4 WRN were referred to and the court urged to resolve this issue in favour of the Appellant and to allow the appeal and grant all the reliefs sought in the Amended statement of claim and to dismiss the counter claim for lack of proof.

RESPONDENT’S ARGUMENT
Arguing his Issue No. 1, the learned counsel submitted that the Banking Act and the Banks and other Financial Institutions Act (BOFIA) are Laws properly made pursuant to the provisions of the Constitution of the Federal Republic of Nigeria. That the Central Bank of Nigeria is not the National Assembly and therefore any Regulation made by the Central Bank of Nigeria Pursuant to Section 15 of the Banking Act and even pursuant to Section 60(2) & 64 of the Banks and other Financial Institutions Act cannot and can never be taken as a Law made within the contemplation of the Constitution of the Federal Republic of Nigeria.

Referring to Chidume Okoro & Anor v. Ikechi Okoro (2009) All FWLR 489, page 480 wherein it was held:
“Bank rates issued by Central Bank of Nigeria in occasional circulars is not a matter to take judicial notice of under the Evidence Act. There must be some evidence of it. In the instant case, it would be doing injustice to adjudicative discretion to accord judicial notice to circulars dished out from Central Bank of Nigeria.”

That the circulars were not laws and that the court rightly disregarded them. Furthermore, that there was no pleadings relating to the circulars and the rates relied upon and those were, therefore, rightly disconnected.

That the paragraphs 23, 27 and 37 wherein the Appellant claimed to have pleaded the Regulations of the Central Bank do not contain the rate of interest allowed by the Central Bank of Nigeria and that the court not being an investigator but an arbiter was right to have confined itself to what was made available to it in the adjudication of the dispute.

That this issue be resolved in favour of the Respondent.

On Issue 2
It was argued, that Documents not specifically pleaded but admitted in evidence and later expunged will not occasion a miscarriage of justice. Counsel concedes that for a document to be admissible, the document need not be pleaded but facts relating thereto must be pleaded by any of the parties in their pleadings and must also be relevant to the case before the court but that the facts must be specific and pleaded with particularity. That the evidence of PW1 is not based on pleaded facts and therefore, goes to no issue. Mrs. Bridget Motoh v. Emmanuel Motoh (2011) ALL FWLR (Pt. 584) page 73 ratio 2 referred; and that such evidence is inadmissible but where admitted inadvertently it should be expunged.

That the Exhibits 3, 4 and 5 Central Bank of Nigeria Guidelines or Regulations whose particulars such as number and dates it came into force were never mentioned and even that 22% mentioned in evidence by PW1 was nowhere pleaded by the Appellant. That the non-pleading of the Central Bank of Nigeria rate, negates fair trial and the purport of pleadings.

That the specific description of the Regulations in a Brief of Argument does not remedy the situation. Mrs. Oluwaseun Agboola v. U.B.A. PLC & Ors (2011) ALL FWLR page 574 @ 79 ratio 6. That documents sought to be relied on, must be specifically pleaded as no party should be taken by surprise.

That the expurgation was right. Okaamgba v. Urumeke (2010) ALL FWLR (Pt. 517) pg. 755 ratio 6 @ 758.

That if after expurgations, if the evidence left can establish the claim, the finding/judgment should not be disturbed. That in this case, the pillar of plaintiff/Appellant’s case had been knocked off.

Learned Counsel sought to distinguish the case of ANPP v. PDP pg. 891 ratio 5 where this court, per Kekere-Ekun (JCA) as she then was, on paragraph C and D, page 908 stated thus – “The Legal position is that documents in support of need not be pleaded did they can be tendered in support of pleaded facts. The 1st and 2nd Respondents having pleaded that the 2nd Appellant was below the age of 30 years could properly tender Exhibit E in support of that fact…” On the ground that the age of the 2nd Appellant was specifically pleaded and that any document in proof of that fact was admissible. That in the instant case, the rate of interest stipulated in the Guidelines, the number and date of the circulars were pleaded and ANPP v. PDP does not apply and therefore not helpful to the Appellant.

On Issue No. 3
It is submitted that a counter claim is a separate action and must be established on its merit as it is not dependant on the main claim. Prime Merchant Bank Ltd v. Man Mountain Company (2000) ALL FWLR (Pt. 9) page 1587 ratio 1 referred.

That the Defendant/Respondent as counter claimant had established its claim. That DW1 had established same by his Evidence and Exhibits 6. The agreement and Exhibit – showing indebtedness of N1,729,938.84 as at 30th April, 2010.

That Exhibit 12 was a verification of the indebtedness as per the letters Exhibits 6, 7 and 10.

That the court was right in holding that the embodying of the terms of a contract is written agreement made extrinsic evidence to vary, subtract from or contradict the terms inadmissible Larmie v. DPMS Ltd (2005) 18 NWLR (Pt. 958) @ 438. That oral and documentary evidence had been led in proof of Exhibit 12.

That S.84(1),(2)(a)(b)(c) and (d) of the Evidence Act 2011 made the information contained therein admissible.

That it was relevant; that the document – Exhibit 12 was relevant and that the fact of the tenderer not being the maker only related to weight or probative value to attach to it. See S.83(2)(a) of the Evidence Act.

Issue 4
It was argued that the Appellant had not proved that his account was manipulated by the Defendant/Respondent. That manipulation was a Criminal Offence and such allegation must be proved beyond reasonable doubt.

S.131 of the Evidence Act and Yusuf v. Obasanjo (2004) FWLR (Pt. 190) page 1383, @ 1405 referred. On the authority of S.131(2) Evidence Act; Ukpo v. Ngaji & 23 Ors (2010) ALL FWLR (Pt. 514) page 144 ratio 7 the burden of proof rested on the Appellant and standard was that beyond reasonable doubt. That it was not proved that there was manipulation, as the interest rates and charges were based on the agreement – Exhibits 6, 7 and 10. That Exhibit 1 had no anchor as Exhibit 3, 4 and 5 had been expunged as wrongly admitted – not having been pleaded.

Issue 5
It was submitted that the court has properly evaluated the evidence led in arriving at the decision it made. Rauf Adesoji Aregbesola v. Oyinlola (2011) ALL FWLR; Jimoh Abolarin & Ors v. Prince Ogundele (2011) ALL FWLR (Pt. 599) page 1096 ratio 5.

It was also submitted that persons of full age and sound mind are bound by any agreement they lawfully enter into.

That the Evidence of DW1 and Exhibit 10 in the face of Exhibits 6, 7 and 10 not denied was credible. That on the strength of Omodele v. Olopade (2011) ALL FWLR 28 ratio 3, oral evidence they led was credible as it was supported by the documentary evidence led.

Referring to many other cases, it was submitted that the trial court evaluated the evidence led before it and came to the right conclusion and this court should not interfere with it.
Tolofari v. Shell Petroleum Development Company of Nigeria Limited (2011) ALL FWLR (Pt. 582) pg 1800 ratio 3.

Finally, this court has been urged to strike out Ground 3, on the ground that no issue has been formulated therefrom and therefore deemed abandoned. Makinde v. Adeogun & Ors (2010) ALL FWLR 522, page 1753 ratio 2 at page 1762. The court was therefore urged to resolve all the 5 issues in favour of the Respondent, uphold the Judgment of the lower court and to dismiss the appeal as lacking in merit and with substantial costs against the Appellant.

In reply, the Appellant filed a Reply Brief of Argument on 27-11-14. It is dated 25-11-14.

Therein learned Counsel contented that the issue of a court taking notice of a Bank interest rate did not arise at the trial court and that it was neither canvassed as an issue thereat or before this court. That all the Central Bank regulations used by the appellant in the lower court were well pleaded and tendered at the trial. That Okoko v. Okoro were cited out of con.

That BOFIA which was not tendered was an Act of the National Assembly which the court take Judicial Notice of; that the Regulations were pleaded and tendered in evidence to be used and not canvassed as an Act of the National Assembly which the court can take Judicial Notice of; that there was no basis for the stand of the Respondent.

On Issue 2: It was argued that Exhibit 1 was documentary evidence which was pleaded and therefore the evidence of PW1 – ….. Adeyemo had anchor. That Exhibit 1 was served on the Respondent before the action and the acknowledgement tendered. That the interest rate stated therein. That there was no surprise sprung on the respondent.

That documentary evidence always serves as a hanger from which to assess oral testimony.
1. Omoregbe v. Lawani (1980) 3-4 SC p.177
2. Kindley v. Military Gov. of Gongola State (1988) 2 NWLR (Pt. 77) page 473.
3. Cameroon Airlines v. Otutu Izu (2011) 45 (Pt. 2) NSC

On Issue 3
That the Defendant was unable to explain how the figure in Exhibit 12 was arrived at; that the court granted same wrongfully.

Finally, it was argued that Ground 3 of the Notice of appeal was not abandoned. That it was, together with ground one embedded in Issue No. 1 as argued.

That an issue may cover one or more grounds of appeal rather than proliferation of Issues.
1. A.P. Ltd v. Owodunni 15 NSCQR 308 ratio 1 (SC)
2. Oyekan v. Akinri Nwor (1996) 7 NWLR (Pt. 459) pg. 128.
3. A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118)
4. Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) page 352.

I have taken time to study the entirety of the record of this appeal and particularly the claims of the respective parties and the evidence led and exhibits tendered, and do not think that the case is as complicated as the parties tried to make it appear through their Counsel in their Briefs.

I shall consider the appeal from the issues formulated by the Appellant so that I may address his grievances, notwithstanding that the Respondent’s Issues are more pungent and clearer; though they (both) sing the same tune as set by the appellant.

It is trite law that an appeal court must consider all issues for determination raised before it except where it is of the view that a consideration of one or more issues is enough to dispose of the appeal. In such a situation, the court may adopt such issues as may dispose of the appeal and may not be bound to consider all the other Issues he considers irrelevant and unnecessary.
The court may disregard for instance where an appellant formulated 5 Issues and adopt a Respondent’s lone or 2 issues. See Tunbi v. Opawale (2000) 2 NWLR (Pt. 644) p.275; Anyanduba NRTC Ltd (1992) 5 NWLR (Pt. 243) 535; Okonji v. Njokama (1991) 7 NWLR (Pt. 202) 131.
In some case, some issues may be subsumed in another or other Issues. So there is flexibility in the matter.
See Kingsley Emeka v. State 59 NSCQR 125 @ 163-164 per Okoro, JSC.

ISSUE No. 1:
Issue number one as argued by the Appellant is, in my view, pregnant with merit. The resolution of this appeal resolves or oscillates round this Issue.

There is no doubt that the charging of interest or fixing of the same and its rate on advances, loans, credit facilities or deposits are regulated by S.15 of the Banking Act that Mandates the Central Bank of Nigeria to so regulate those by the issuance of Guidelines on Minimum and Maximum of interest.

In this wise, such rates or charges fixed within that law is binding and those outside in excess thereof is wrongful and indeed unenforceable in law and equity.

This will be so where the Banking Act or Regulations and Guidelines do not allow any discretion in the fixture by an agreement of the parties. See Union Bank of Nigeria Plc v. Alhaji Adams Ajabule (2011) 18 NWLR 1278 page 12 @ 186 par. F-G.

The Guides and Regulations of the Central Bank are therefore not merely white wash icings on the cake but they are binding laws for observance by the Banks interse, and as may be applicable in contracts to be entered into with their customers or clients see Sec. 60(1)(2) and S.64 of the Banks and other Financial Institutions Act (BOFIA). Exhibits 6, 7 and 10, i.e. the Letters of offer clearly appreciated this fact when it stipulated clearly that:
“This offer is subject to the availability of funds and to the rules and regulations as may be stipulated from time to time by the Central Bank of Nigeria.”

Paragraph 9(ii) of Exhibit 6 – the first letter of offer provides as follows:
“ALL CBN rules and regulations are to be strictly complied with and adhered to.”

S.60(2)(a) of BOFIA provides that “every person or institution carrying on such financial business as are referred to in Section 56 of this Act shall:
(a) comply with the monetary policy guidelines and other directives as the Bank may from time to time specify.

From the above, it is beyond dispute that the Banking Act, Rules and Regulations and Guidelines are laws; and are binding and every violation thereto is prohibited.

Indeed, the Rules, regulations and guidelines may be pleaded and where they are not pleaded, the courts may take Judicial Notice of same.

See S. 73-75 Evidence Act, 2011 and the Government of Lagos State v. Pastor Karimu & others (2012) 5 NWLR (Pt. 1294) page 620. Generally, the custom in the Banking world is that a Banker has the right to charge interest at a reasonable rate on all draft, and this can be resolved by examining the agreement entered into with a customer. Where there is an agreement to charge interest, as in the matter at hand, it becomes idle to argue that no interest is chargeable.

This however is not the complaint/grouse of the Appellant, herein. His complaint is that the amount of interest charged is beyond the rate fixed by the Central Bank Regulations, which as I stated earlier is binding between the parties.

The Appellant cannot be taken to have consented or accepted the rates charged on the facility hence his protest, upon discovery.

That he had not acted in bad faith, is shown by his repayment efforts, until the discovery of the illegality in excess charges.

The Appellant cannot waive a public duty or obligation on the Respondent as relating to the range of the rate of Bank interest as may be charged. He cannot acquiesce to any non-observance or compliance, thereto.

He cannot do that, even by their agreement as any such agreement will be against public policy and indeed unenforceable in law. See Ariori’s case 1988 1 SC 1.

The documents, Exhibit 6, 7 and 10 speak for themselves clearly that the Banking Regulations and Guidelines issued by the Central Bank of Nigeria shall apply.

The said Guidelines and Regulations were tendered as Exhibit 2, 3, 4 and 5 and un-opposed.

Non-compliance with those Guidelines and Regulations as relating the charges or rates had been pleaded and testified to. The demonstration of the non-compliance was done by evidence led and the tender of Exhibit 1 which at its page 3 thereof disputes the interest computation as made. Exhibit “5” being the prudential Guidelines for bank charges, etc was also tendered and admitted in evidence.

In the face of the documentary evidence led, it is obvious that the documents speak for themselves. Oral evidence was not permissible to vary, add or take from the contents of the documents. See N.I.D.B. v. Olalomi Industries Ltd (2002) 5 NWLR (Pt. 761) 532.

The contract between the parties in this appeal no doubt, is subject to the terms of the contract and the Banking Law and BOFIA, which makes the Central Bank Guidelines and Regulations obligatory. See Ignobis Hotel Ltd v. Bentec Elect. Ltd 2015 1 NWLR (Pt. 1441) 504. See also Chikwendu Ogbonna v. Olasunkanmi Ade CA/L/133/08 delivered on 20th July, 2011.

The differential that comes up as the excess unlawful charges in interest rate, etc had been established at the trial court. The Guidelines and Regulations had been sufficiently pleaded and relied upon. Expunging them as was done, by the trial court on the ground that they were not pleaded is wrongful. On the whole, the Appellant had proved that there existed the Central Bank Regulations and Guidelines and that the agreement between the parties envisaged strict compliance with it; and that there had been a violation of which made the Appellant not bound to pay the differential in excess charges established; and the Respondent, in corollary, is not entitled to enforce such interest rate if any is charged.

The learned trial Judge had in his Judgment at page 96 of the record held in part thus:-
“This argument is untenable because any attempt to apply the CBN interest rate will amount to rewriting of the agreement between the parties. I therefore find that the application of other interest rates other than that agreed by the parties is not applicable to this case….”

The above finding of the trial court could not have been correct as the CBN interest rate had been made applicable by the agreements between the parties. The amount of N243,685.85, being excess interest rate charged on the account, contrary to the view of the trial Judge that the basis thereof had not been shown, was established.

I see Exhibit 1, showing the agreed rate, the applied rate deriving from the simulation from calculation of the interest rate as adequate evidence in proof of that sum alleged/claimed, as Excess interest rate charges. The plaintiff pleaded the facts and tendered documents in proof.

The Respondent is bound to comply. Issue 1 is resolved in favour of the Appellant, who has proved Excess charges in violation of the CBN Regulations and the agreement.

Issue No. 2 of the Appellant relates to whether the Regulations and Guidelines of the CBN must be specifically pleaded before they could be admitted.

By paragraphs 17, 23, 27, 28, 31, 32, 33 and 34 of the Amended statement of claim filed by the Appellant on the 28th September, 2012 at page 16-20 of the record, the Central Bank of Nigeria Guidelines and Regulations had been alluded to. They were tendered as Exhibit 3, 4 and 5 amongst others. These Regulations need not be specifically pleaded to be admissible. They are bye laws or subsidiary legislations. The court must take Judicial Notice of them. U.B.N. PLC v. Ajabule (2011) 18 NWLR (Pt. 1278) page 152 @ 186 paragraph F-G and Union Bank of Nig. v. Ozigi (1994) 3 NWLR (Pt. 333) pg.3. Exhibit 1 tendered by the Appellant also made reference to those documents admitted as Exhibits 5. The said Exhibits ought not to have been expunged by the trial Judge.

It must be pointed out in agreement with the Appellant’s learned Counsel, that facts in respect of the Exhibits having been pleaded; those documents were relevant and ought to have been admitted in interest of Justice.
ANPP v. PDP (2007) ALL FWLR (Pt. 357) page 885 @ 891, ration 5.

On the whole, it is my view that the documents – Exhibits 3, 4 & 5 must not be specifically pleaded before they could be admitted. Issue No. 2 is resolved in favour of the Appellant.

ISSUE 3
Whether the Defendant/Respondent adduced credible evidence in support of the counter claim.

In the instant appeal, the Respondent counter claimed against the Appellant for the sum of N1,729,938.84.

The Evidence in this regard was that led by DW1 – Olusola Olayinka. The relevant portion of his evidence in that respect is at page 15 of the Judgment and page 36 of the Record of appeal. Therein DW1 stated –
“It is the plaintiff that is still indebted to the defendant to the tune of N1,729,938.84 kobo as at 30th April, 2010”

When asked what evidence the plaintiff had to prove this amount of money, he answered thus:- “This is the plaintiff’s indebtedness to the Defendant. The statement of Account was generated from the computer system generally used by the defendants in its normal course of business. The amount the plaintiff is owing is evident in the statement of Account. I don’t know how figures are feed into the computer. I don’t know how interest rates are feeded into the computer from 2007-2009.”

On the suggestion that DW1 would not know how the amount claimed was arrived at, he said “As the representative of the Bank the statement of claim (sic) was centrally generated. The Bank computed all interest rates which are fed into the computer department. I don’t know how the figures on the statement of claim (sic) are generated.”

The statement of Account was admitted as Exhibit 12.

In his counter claim, the learned counsel for the Defendant/counter claimant relied on Exhibit 12 and said the best evidence of repayment of indebtedness was for the plaintiff to tender the Bank Tellers showing payments. This he argued the plaintiff/Appellant did not do.

The trial Judge bought this argument. With respect, that is wrong. As I had indicated earlier, a counter claim is a distinct action. He who alleges must prove. The burden of proving this indebtedness is on the counter claimant/Respondent. See Ogundele v. Ogiri (2010) ALL FWLR (Pt. 507) page 1 @ 25; also reported as Ogundele v. Agiri (2009) 18 NWLR (Pt. 1173) 219.

Merely rendering Exhibit 12, without evidence in elucidation to show demonstratively how the sum indicated as debit and claimed was arrived at was not such act that could be referred to as proof of the counter claim. The Evidence of the DW1 in Chief and in Cross Examination never proved the amount claimed. Merely pleading an amount without a supporting evidence was not sufficient. Indeed, the claim lay bare and prostrate, as it were.

The basis of the counter-claim is predicated on the alleged non-payment of interests and other charges as contested by the Appellant. The Appellant had proved the differential in charges made which were subject to the C.B.N. Regulations, Guidelines and Rules made pursuant to the banking Act and BOFIA.

In the circumstance, the counter-claim remained unproved.

ISSUE 4
Whether the Appellant was able to prove the excess charges and the allegation of the manipulation of his Account beyond reasonable doubt to entitle to the reliefs sought.

From the resolution of Issue No. 1 and 3 it is obvious that the 1st part of this issue relating to proof of the excess charges must be answered in the positive. Furthermore the trial court itself had disallowed the charges for N30,000.00 for availment fees and ordered that Appellant was entitled to refund in that respect, and held that the complaint on excess charges succeeded partially. There is no Cross/Appeal against this finding by the Respondent. The finding subsists in law, until set aside. As to the manipulation of the Appellant’s account, this is an allegation of fraud. This entails an imputation of fraud or joggling or alteration of account. This is an allegation that must be proved by he that so alleges, see Ogundele v. Ogiri (supra), Rilwan & Partners v. Skye Bank Plc (2015) 1 NWLR (Pt. 1440) 437 (supra).

By S.139 of the Evidence Act 2011 and on the authority of the case of State v. Njoku (2010) ALL FWLR (Pt. 523) 1924 @ 1945 (2010) 1 NWLR (Pt. 1175) 243, the standard of proof is that beyond reasonable doubt. See also Rilwan & Partners v. Skye Bank (supra).

The averments were not however, without evidence in support. The court was bound to act on them, as there was evidence led. Contrary to the position in Yashe v. Umar (2003) 13 NWLR (Pt. 838), where the pleadings were deemed abandoned; in this case on appeal, there was proof beyond reasonable doubt of the partial manipulation of the Appellant’s account. It was such that entitled him to the reliefs sought to the extent of the total of the excess Bank rate charges and N30,000.00 being availment fees as adjudged by the trial court. Issue 4 is resolved partly in favour of the Appellant.

ISSUE 5
Whether the trial court properly evaluated the parties evidence before the court.

It is obvious from the evidence led that the trial court did not evaluate the evidence led before arriving at its decision.

The agreements – Exhibits 6, 7 and 10 were tendered by the parties. Exhibits 3, 4 and 5 which were Central Bank of Nigeria Regulations, Rules and Guidelines issued as circulars pursuant to the Central Bank of Nigeria Act 2004 and S.60(2)(a) of BOFIA which regulations were incorporated by reference into Exhibits 6, 7 & 10 were expunged on the spurious ground of non-pleadings.

If these evidence had been properly evaluated, the conclusion arrived at would have been different.

The DW1 – the sole witness of Respondent gave evidence that could not rebut the Plaintiff/Appellant’s case as put up by oral evidence and documentary evidence.

There was no rebutting evidence to Exhibit 1 as Exhibit 12 was dumped on the court and was not scrutinised by the court and yet relied on to found liability against the Appellant.

As relating to the counter-claim, the trial court did not scrutinise or evaluate the evidence in chief nor the answers in Cross-Examination to arrive at a decision. This independent action which must be proved on its merit simply placed reliance on the statement of Account – Exhibit 12 which was not proved nor testified to and evaluated.

I agree with the Appellant that the mere tender of a Bank Statement of Account without more, is not sufficient. See IEZAN EXCLUSIVE GUEST HOUSE v. UHS & L. LTD; HNB LTD (2004) 15 NWLR (Pt. 896) page 408 @ 412 ratio 6.

The Evidence of DW1 at page 36 lines 8-10 of the record of Appeal is that the Exhibit 12 was generated from the computer department of the Bank where he did not work and did not know how it was generated and fed into the books.

His competence to testify in respect of those facts was suspect. Even if even could testify, the weight to attach to such evidence was almost nil.

Indeed, Section 51 of the Evidence Act, 2011 provides thus:
“Entries in books of Account or electronic records regularly kept in the course of business are admissible when ever they refer to a matter into which the court has to inquire, but such statement shall not be sufficient evidence to charge any person with liability.”

The learned counsel for the appellant was therefore, right when he submitted that the production of the Appellant’s Statement of Account alone, without leading credible evidence in respect thereto could not suffice to establish liability against the Appellant as found by the trial court.

The Respondent/Counter Claimant ought to have explained the entries in Exhibit 12 more so that the Appellant challenged the interest used which was different from the 22.5% rate which the Respondent claimed in Cross Examination that it used.

There was no evaluation of the Respondent’s evidence on the counter claim. It is within the province and indeed, it is the duty of the trial court to evaluate the evidence led before her in both the main claim and the counter-claim and if having done that and enjoying the benefit of listening to witnesses and observing their demeanor, its decision would not ordinarily be disturbed unless it is perverse.

Where the court did not take the benefit of the presence of witnesses before her, and made no evaluation or assessment of witnesses nor of the documentary evidence dumped on it, the Appellate court will set aside such conclusion and make its own evaluation of the evidence led. Particularly where demeanor is not a determinant factor to consider.

The finding of facts and conclusion of the trial court in the circumstance that the counter claim had been proved and that the Appellant had not proved its claim was in this case, perverse.

Issue No. 5 is resolved in favour of the Appellant and against the Respondent.

Having resolved all the issues in favour of the Appellant, this appeal is allowed.

Consequentially the Judgment of the Ondo State High Court in Suit No. AK/31/2010 delivered on the 5th December, 2012 as adversely affecting the Appellant is set aside and all reliefs and consequential orders granted therein are also quashed.

In place thereof, I, pursuant to Section 15 of the Court of Appeal Act 2004, allow the Appellant/Plaintiff’s claim and dismiss the counter-claim thereto as unproved at the trial court.

Costs:
Costs of N50,000.00 only is awarded in favour of Appellant/and against the Respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have a preview of the judgment just delivered by my learned brother, Mohammed Ambi-Usi Danjuma, JCA. His lordship has comprehensively dealt with all the issues in this appeal. I agree with the learned brother that this appeal to be allowed for its merit. I also allow the appeal and set aside the judgment of the lower court.

I abide by all the consequential order(s) in the lead judgment, including the order for costs.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

Appearances

A. A. Ojopagogo, Esq.For Appellant

AND

Tunde Adeoye, Esq.For Respondent