MRS. ADEBOLA NEJO v. ACCESS BANK PLC & ORS
(2019)LCN/13607(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of July, 2019
CA/L/923/2013
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
MRS. ADEBOLA NEJO Appellant(s)
AND
1. ACCESS BANK PLC
2. NIRACON ENGINEERING NIG. LTD
3. MRS. MAUREEN OMORINOLA BADEJO
4. ENGR. NIRAN BADEJO Respondent(s)
RATIO
THE DOCTRINE OF BURDEN OF PROOF
The doctrine of burden of proof is encapsulated in the Latin Maxim ei qui affirmat non ei qui negat incumbit probatio, that is, the burden of proof lies on the one who alleges and not on him who denies. See ARASE vs. ARASE (1981) 5 SC 33 at 37, UMEOJIAKO vs. EZENAMUO (1990) 1 SCJN 181 at 189 and MAXIMUM INSURANCE CO. LTD vs. OWONIYI (1994) 4 NWLR (PT 331) 178 at 192. So the 1st Respondent having pleaded the existence of awareness, consent and personal deposit of the title documents by the Appellant had the burden of proving that fact: OKI vs. OKI (2002) 13 NWLR (PT 783) 89 at 105. The evidence in proof must be credible, valuable and of such quality as to have probative essence. See DIBIAMAKA vs. OSAKWE (1989) 3 NWLR (PT 107) 101 at 113 and 114 and ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209. PER OGAKWU, J.C.A.
DEFINITION OF A “PERVERSE FINDING”
A perverse finding is a finding which is merely speculative and not based on any evidence before the Court. It is a finding that is unreasonable and unacceptable because it is wrong and completely outside the evidence before the Court. See NEPA vs. OSOSANYA (2004) 1 SC (PT 1) 159, OVERSEAS CONSTRUCTION COMPANY NIG LTD vs. CREEK ENTERPRISES (NIG) LTD (1985) 12 SC 112 and IWUOHA vs. NIPOST (2003) 4 SC (PT 11) 37 at 61. PER OGAKWU, J.C.A.
DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE THERETO
It is the trial Court that has the duty of evaluation of evidence and ascription of probative value thereto. The trial Court sees the faces of the witnesses, hears their testimony, feels the tension and observes the demeanour of the witnesses. It is therefore within the province of the trial Court which saw, heard and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. There is a duty on the trial Court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT I) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50 ? 51. PER OGAKWU, J.C.A.
MEANING OF EVALUATION OF EVIDENCE
There is little or no difficulty with perception of evidence, id est, receive all available relevant evidence. But what amounts to evaluation of evidence? This is how Oputa, JSC (of most blessed memory) explained it in ONWUKA vs. EDIALA (supra) at 208-209:
?What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc…..
Now talking of scale naturally leads one to the famous dictum of Fatayi-Williams, JSC (as he then was) in A. R. MOGAJI & ORS vs. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93:
?when an appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which has been given to the totality of the evidence before him, (the trial judge)…. Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it…?
The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence…Even in Mogaji?s case…this Court held at p. 94:-
?Therefore in determining which is heavier, the judge will naturally have regard to the following:
(a) whether the evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible;
(d) whether it is conclusive; and
(e) whether it is more probable than that given by the other party.
It would appear that evaluation of evidence is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts. See ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. STATE (1986) 5 NWLR (PT 46) 978 at 1005. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The fountainhead of this appeal is in the banker/customer relationship between the Respondents. The Appellant is the mother of the 3rd Respondent and mother in law of the 4th Respondent. In the normal course of banking, the 1st Respondent granted two facilities to the 2nd-4th Respondents. The collateral provided for the second facility was an equitable mortgage by deposit of the title deeds of the property belonging to the Appellant. There was default in the repayment of the facility, consequent upon which the 1st Respondent instituted proceedings against the 2nd-4th Respondents. The Appellant was later joined as a party to the action and she set up a counterclaim against the 1st Respondent.
The 1st Respondent as the Claimant in the action before the High Court of Lagos State in SUIT NO. ID/1166/2009: ACCESS BANK PLC vs. NIRACON ENGINEERING NIG. LTD & ORS. claimed the following reliefs:
(a) WHEREFORE the Claimant claims jointly and or severally against the 1st, 2nd and 3rd Defendants for the sum of N13,551,560.00k (Thirteen Million Five Hundred and Fifty
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One Thousand Five Hundred and Sixty Naira) only as at 30th April, 2009 being the total sum due and payable by the Defendants either jointly and or severally to the Claimant as a result of the N2.5 million Temporary Overdraft Facility granted to the Defendants by the Claimant Bank and the N10million Bank Guarantee the Claimant Bank equally granted to them in favour of Celtel Nig Ltd (now Airtel Nig Ltd)
(b) Compound Interest Rate of 19.5% per annum from 01/05/2009 until Judgment and thereafter at the same rate and condition until the final liquidation of the entire debt plus a Penal Interest Rate Charge of Default at 1% per month as per the parties Offer and Acceptance Letter of 28th June 2007.
(c) An Order of this Honourable Court directing the disposal/sale of the 4th Defendant Property located at Olufade Crescent, Behind Kolak Filing Station, Off Ikoya Road, Okitipupa, Ondo State (and not No 1 Ibitola Street, Ore, Ondo State which was the 4th Defendant former residential address) registered as No 44 at Page 44 in Volume 678 of 9th June 199 at the Land Registry office at Akure in Ondo State which was used as part of the Equitable Mortgage
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collateral for the N10million Bank Guarantee facility that was granted to the 1st Defendant as contained in the Offer and Acceptance Letter of 18th January 2007. The Original of the Property Title Document is in the custody of the Claimant Bank.
(d) Cost of this action and Solicitors Fees to be borne by the Defendants.?
The Appellant?s counterclaim against the 1st Respondent is for the following reliefs:
?a. A declaration that the Claimant should return the 4th Defendant Original Certificate of Occupancy, Registered as No. 44 at Page 44 in Volume 678 on the 9th June, 1999 at the Land Registry Office at Akure in Ondo State to the 4th Defendant.
b. A declaration that cost of this action and Solicitors fees should be borne by the Claimant.?
The action was subjected to a full dressed hearing and in its judgment, the lower Court dismissed the counterclaim and entered judgment in favour of the 1st Respondent for the reliefs it claimed. The Appellant was dissatisfied and appealed against the said judgment. The judgment of the lower Court which was delivered on 3rd May 2013 is at pages 454-473 of the Records, while the
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Notice of Appeal filed on 17th June 2013 is at pages 474-478 of the Records. The Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged between the Appellant and the 1st Respondent only. The 2nd-4th Respondents did not file any brief of argument and were also not represented at the hearing; even though they were duly served.
The briefs of argument which Oladipo Olukuewu, Esq. (with Tayo Abadariki, Esq.) learned counsel for the Appellant and Chief T. N. T. Okonkwo, of counsel for the 1st Respondent adopted and relied upon at the hearing are:
?1. Appellant?s Brief of Argument filed on 7th September 2017 but deemed as properly filed on 18th September 2018.
2. Respondent?s Brief of Argument filed by the 1st Respondent on 24th October 2017 but also deemed as properly filed on 18th September 2018.”
The Appellant formulated four issues for determination as follows:
?1. WHETHER THE 1ST RESPONDENT DISCHARGED THE ONUS PLACED ON IT TO PROVE TO THE COURT THAT THE APPELLANT ACTUALLY CAME TO THE 1ST RESPONDENT?S BANK TO DEPOSIT HER CERTIFICATE OF OCCUPANCY NO 44/44/678 ISSUED BY
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ONDO STATE GOVERNMENT ALONG WITH THE 3RD RESPONDENT AS COLLATERAL FOR A LOAN AND WHETHER THE OFFICERS OF A BANK CAN GIVE VALID TESTIMONY FROM A NON EXISTING RECORDS OF THE BANK. CAN THE COURT RELY ON SUCH EVIDENCE?
2. WHETHER OR NOT THE APPELLANT GAVE COGENT EVIDENCE, WITHOUT CONTRADICTIONS AT THE TRIAL COURT, THAT SHE GAVE THE TITLE DOCUMENT OF HER PROPERTY TO THE 3RD RESPONDENT FOR SAFE KEEPING AND NOT FOR A LOAN.
3. WHETHER THE PRONOUNCEMENT OF THE TRIAL COURT ON THE PROVISIONS OF SECTION 167D OF THE EVIDENCE ACT WAS RIGHT IN LAW (PAGE 471 OF THE RECORDS)
4. WHETHER THE CERTIFICATE OF OCCUPANCY NO 44/44/678 ISSUED BY THE ONDO STATE GOVERNMENT IN RESPECT OF THE APPELLANT?S HOUSE AT OKITIPUPA, ONDO STATE, COULD BE USED AS SECURITY FOR A LOAN WITHOUT THE AUTHORITY OR CONSENT OF THE APPELLANT OBTAINED IN WRITING.?
On its part, the Respondent distilled two issues for determination, namely:
?1. Whether the trial lower Court Judge was right with her findings when she held ?This Court believed the evidence of CW1 founded on the premise that the 2nd Defendant was accompanied by the 4th Defendant to the Bank to deposit
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her documents. It is only the 2nd Defendant, in the view of this Court, who could tilt the balance to refute this positively in favour of the 4th Defendant if indeed this was the case. She never appeared in Court at all. Page 471 of the Record Lines 23 to 27 of the Judgment. Grounds A, B & C of the Notice of Appeal.
2. Whether the trial lower Court Judge was also right when she held ?It is fairly well-settled law now that Officers of a Bank can give testimony from their Records which will not be taken to be hearsay for the peculiar reason of the revolving door of staff. See Section 89 of the Evidence Act 2011. See also Obijiaku vs. NDIC (2002) 10 NWLR (Pt 774) 201 at 215. Page 471 of the Record Lines 19 to 22 of the Judgment ? Ground D of the Notice of Appeal.?
It is evident that the issues nominated by the parties all deal with the evaluation of evidence and ascription of probative value thereto by the lower Court. This being so, it seems to me that a sole distensible issue that encapsulates the disparate formulation of issues by the parties would suffice for the determination of this appeal. The bespoke issue
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which I find apt in this regard is:
?Whether based on the preponderance of evidence and balance of probabilities, the lower Court rightly entered judgment against the Appellant.?
It is based on the above issue as crafted by the Court that I will now consider the submissions of learned counsel and seamlessly resolve this appeal en bloc.
SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that the 1st Respondent did not prove its assertion that the Appellant and the 3rd Respondent came to the bank to deposit the Appellant?s Certificate of Occupancy. It was stated that the 1st Respondent?s witness testified that officers of the bank who saw the Appellant bring her Certificate of Occupancy to deposit were still in the bank, but that none of them was called to testify. Furthermore, that the documents which the witness said she went through and which grounded her testimony were not frontloaded. It was asserted that the 1st Respondent did not discharge the burden of proof as required by Section 135 of the Evidence Act. The case of AGBOOLA vs. UBA (2011) 11 NWLR (PT 1258) 375 at 383 or (2011) LPELR-9353 (SC)
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was relied upon. The Appellant maintained that the lower Court was wrong to rely on bankers books which did not meet the conditions precedent under Section 97 (2) (a) & (e) of the Evidence Act vide FRN vs. FANI-KAYODE (2010) 14 NWLR (PT 1214) 481 at 506 and LUFTHANSA GERMAN AIRLINES vs. BALLANYNE (2012) LPELR-7977 (CA).
It is the further submission of the Appellant that her testimony was that she gave her title documents to her daughter for safekeeping and not for use as security for a loan and that any variations in her testimony were not substantial and fundamental to the main issue in question. The cases of ZUBAIRU vs. THE STATE (2011) ALL FWLR (PT 592) 1692 at 1697, ASHAKA vs. NWACHUKWU (2013) LPELR-20272 (CA), GABRIEL vs. THE STATE (1989) 5 NWLR (PT 122) 457 and OLADIPO vs. MOPA LGA (2010) 5 NWLR (PT 1186) 117 at 113 [sic] were referred to. It was maintained that the Appellant?s evidence was cogent while the testimony of the 1st Respondent?s witness was mere hearsay and should be discountenanced. The case of FBN PLC vs. NDOMA-EGBA (2005) 4 FWLR (PT 284) 820 at 830 was cited in support.
?The Appellant contends that the lower Court
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was wrong to have applied Section 167 (d) of the Evidence Act against her because the 3rd Respondent did not testify. It was opined that the burden of proving the deposit of the title documents was on the 1st Respondent videINEC vs. IFEANYI (2010) 1 NWLR (PT 1174) 98 at 103. The stipulations of Section 167 (d) were stated to be withholding of evidence and not the failure to call a particular person as a witness to give evidence. The cases of AWOSILE vs. SOTUNBO (1986) 3 NWLR (PT 29) 471, OGBODU vs. THE STATE [no reference supplied] and ONWUJUBA vs. OBIENU (1991) 4 NWLR (PT 183) 16 were called in aid.
?It is the assertion of the Appellant that in banking practice, the title deed of a third party cannot be used as security without some documents from the third party as evidence of the transaction. It was stated that no such documentation exists in this matter and that by Section 5 of the Statute of Frauds 1677, which has an equivalent enactment in Laws of Lagos State of Nigeria, Volume 5, Cap L63, a contract for a mortgage or charge on land or contract by which a person can answer for the debt or default of a third party is unenforceable unless it is in
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writing and signed by the party to be charged therewith or a person he authorised. Page 48 of the legal ?Practice and Law of Debt Recovery in Nigeria?, by Emeka Anthony Odikpo was referred to. The Appellant conclusively invoked the legal maxim nemo dat quod non habet for the contention that her property could not have been used without her written consent to secure any loan. The cases of BOUARI vs. BANK OF THE NORTH LTD (2002) 44 WRN 28, GBADAMOSI vs. AKINLOYE (2013) LPELR-20937 (SC), ADAMU vs. GULAK (2013) LPELR-20844 (CA) and MAGAJI vs. OGELE (2012) LPELR-9467 (CA) were relied upon.
SUBMISSIONS OF THE 1ST RESPONDENT?S COUNSEL
The 1st Respondent submits that the lower Court made the correct findings and that the same should not be disturbed. The findings of the lower Court at pages 470-471 of the Records were referred to and it was posited that the lower Court held that the Appellant was not a credible witness and being based on credibility, the findings should not be disturbed vide EDOSA vs. EHIWENMA (2014) ALL FWLR (PT 749) 1096 at 1109, IGHIWIYISI vs. IGBINERE (2016) ALL FWLR (PT 819) 1056 at 1077 and IKUMONIHAN vs. THE STATE
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(2014) ALL FWLR (PT 727) 774 at 793. The Court was urged to uphold the finding of the lower Court that the Appellant came to the bank with the 3rd Respondent and deposited the title documents since the 3rd Respondent who would have cleared any doubts in that regard did not testify.
It was stated that the lower Court rightly held that the Appellant did not discharge the onus of proving that she did not deposit the title documents with the 1st Respondent and that the 1st Respondent?s witness having testified that the Appellant and 3rd Respondent both came to deposit the title documents, the onus thereafter shifted to the Appellant to prove that she did not come with the 3rd Respondent, which she failed to do. It was posited that the lower Court correctly applied Section 167 (d) of Evidence Act, having found that the 3rd Respondent, who would have tilted the balance of probability in favour of the Appellant did not testify. It was asserted that the contradictions in the Appellant?s evidence as to whether she gave the title documents to the 3rd Respondent for safekeeping or that she forgot them in 3rd Respondent?s house in Lagos were
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not mere variations, but of a nature that made it unsafe to rely on either story. The case of OSADIM vs. TAIWO (2010) ALL FWLR (PT 534) 146 at 165 was cited in support.
The 1st Respondent maintains that the mere deposit of title documents created equitable mortgage without the need for anything to be written. The cases of STANDARD MANUFACTURING CO. LTD vs. STERLING BANK PLC (2015) ALL FWLR (PT 796) 472 at 501, USENFOWOKAN vs. IDOWU (1975) 4 SC (Reprint) 136 and YARO vs. AREWA CONSTRUCTION LTD (2007) 12 NWLR (PT 1063) 333 were called in aid. The legal maxim nemo dat quod non habet was said to be inapplicable since the Appellant and 3rd Respondent came and deposited the title documents, showing that the Appellant consented to and approved the transaction.
The 1st Respondent further contends that the lower Court rightly held that the evidence of bank officials from their records is not hearsay due to the peculiar reason of the revolving door of bank staff vide ISHOLA vs. SOCIETE GENERALE BANK (NIG) LTD (1997) 2 NWLR (PT 488) 405 at 424, KATE ENTERPRISES LTD vs. DAEWOO NIG. LTD (1985) 3 NWLR (PT 5) 116, ANYAEBOSI vs. R. T. BRISCOE NIG. LTD (1987) 3 NWLR
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(PT 59) 84, IGUNBOR vs. UGBEDE (1976) 9-10 SC 179 at 187 and ANAJA vs. UBA PLC (2011) 15 NWLR (PT 1270) 377 at 404. It was stated that the 1st Respondent?s witness testified that she had gone through the documents on the transaction and tendered the offer letters, Exhibits C19 and C4, which show the security for the facility as the Appellant?s property. The testimony of the 1st Respondent?s witness being based on the records, it was maintained, was not hearsay merely because she said she had equally spoken to some other officers of the bank.
RESOLUTION
In the general scheme of this matter, the main issue in contest in this appeal between the Appellant and the 1st Respondent falls within a narrow compass. There is no appeal on the decision of the lower Court that the 2nd-4th Respondents are liable to the 1st Respondent on the amount outstanding on the facility granted to them. The very narrow issue is whether the lower Court was right when it made an order for the sale of the Appellant?s property on the grounds that an equitable mortgage had been created in favour of the 1st Respondent by the deposit of the title documents with
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it. Contrariwise, whether the lower Court should not have allowed the counterclaim and ordered that the title documents should be returned to the Appellant.
The trial of the action at the lower Court was based on the pleadings filed and on the basis of which issues were joined between the Appellant and the 1st Respondent. I have already set out the reliefs claimed by the parties in their respective claim and counterclaim. At the risk of prolixity, the relevant reliefs for the purpose of this appeal are the 1st Respondent?s relief in paragraph 33 (c) of the Amended Statement of Claim which is as follows:
?(c) An Order of this Honourable Court directing the disposal/sale of the 4th Defendant Property location at Olufade Crescent, Behind Kolak Filling Station, Off Ikoya Road, Okitipupa, Ondo State (and not No 1 Ibitola Street, Ore, Ondo State which was the 4th Defendant former residential address) registered as No 44 at Page 44 in Volume 678 of 9th June 1999 at the Land Registry office at Akure in Ondo State which was used as part of the Equitable Mortgage collateral for the N10million Bank Guarantee facility that was granted to the 1st
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Defendant as contained in the Offer and Acceptance Letter of 18th January 2007. The Original of the Property Title Document is in the custody of the Claimant Bank.?
(See page 243 of the Records)
For the 1st Respondent, it is the relief in paragraph 1 (a) of the Counterclaim as follows:
?a. A declaration that the Claimant should return the 4th Defendant Original Certificate of Occupancy, Registered as No. 44 at Page 44 in Volume 678 on the 9th June, 1999 at the Land Registry Office at Akure in Ondo State to the 4th Defendant.?
(See page 231 of the Records)
The facts on which the parties predicated their case leading to the aforementioned reliefs claimed are not convoluted. For the 1st Respondent, it is that the Appellant was aware, consented to the use of her property as collateral security for the facility and physically came to the bank with the 3rd Respondent to deposit the title documents. The averments in paragraphs 7 and 8 of the Amended Statement or Claim are apposite. They read:
?7. That the 4th Defendant is the mother of the 2nd Defendant and mother-in-law to the 3rd Defendant whose property in
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Okitipupa in Ondo State was used with her consent as part of the collateral for the N10million Bank Guarantee Facility that was granted to the 1st Defendant. The said property is located at Olufade Crescent, Behind Kolak Filling Station, Off Ikoya Road, Okitipupa, Ondo State (and not No 1 Ibitola Street, Ore, Ondo State which was the 4th Defendant former residential address) registered as No 44 at Page 44 in Volume 678 on 9th June 1999 at the Land Registry Office at Akure in Ondo State. The Claimant hereby pleads the Certified True Copy of the Certificate of Statutory Right of Occupancy of the said property at the trial of this suit. The Original of the said Certificate of Occupancy is still in the custody of the Claimant Bank.
8. That as a matter of fact the 2nd Defendant brought the 4th Defendant who is her mother to the Claimant Bank with the Original Certificate of Occupancy whereupon the 2nd & 4th Defendants deposited the said Original Certificate of Occupancy as part of the collateral for the N10million Bank Guarantee that was granted to the 1st Defendant Company.?
(See page 241 of the Records)
?The 1st Respondent underscored the
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above averments in paragraphs 1 (b), 1 (c) and 4 of the Claimant?s Defence to the 4th Defendant Counterclaim wherein it is averred as follows:
?(b). The 4th Defendant/Counter Claimant may not be aware of the earlier N2.5million facility that was personally guaranteed by the 2nd Defendant, but the 4th Defendant/Counter Claimant is 100% aware that her title document was used as collateral because she personally came with the 2nd Defendant to deposit/drop her title document with the Claimant.
(c) The 4th Defendant/Counter Claimant further made it clear to the Claimant that the reason why she have to come down to Lagos personally was to ensure that the title document was handed over to the Claimant directly to avoid any long story on the where about of the title document in future.
4. That in direct response to paragraph 9 of the 4th Defendant Statement of Defence, the Claimant avers that it is wrong and an afterthought for the 4th Defendant/Counter Claimant to claim that she (4th Defendant) only got to know about the loan sometimes in May/June 2011 since she was the person who physically came down to Lagos in March 2007 with the 2nd
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Defendant her daughter to deposit her title document with the Claimant as collateral for the N10million Loan facility.?
(See pages 345 and 346 of the Records).
For the Appellant, her case is that she was not aware, did not consent and did not accompany the 3rd Respondent to deposit her title documents at any bank. These are the averments in paragraphs 6, 7, 8, 9, 13 (ii) and 13 (iii) of the Statement of Defence of the 4th Defendant. They read:
?6. The 4th Defendant avers that she was also not aware that the 2nd Defendant and the 3rd Defendant used her property at Olufade Crescent, Behind Kolak Filing Station, Off Ikoya Road, Okitipupa, Ondo State, Registered as No. 44 at Page 44 in Volume 678 on the 9th June, 1999 at the Land Registry Office at Akure in Ondo State as part of collateral for a N10million Bank Guarantee Facility.
7. That she not give any form of consent to the 2nd Defendant and the 3rd Defendant to use her property at Olufade Crescent, Behind Kolak Filling Station, Off Ikoya Road, Okitipupa, Ondo State as part of collateral for a N10million Bank Guarantee Facility and she shall put the claimant to the strictest
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proof of same.
8. The 4th Defendant avers that she did not follow the 2nd Defendant to the Claimant?s Bank or any Bank to deposit her Original Certificate of Occupancy as part of collateral for a N10million Bank Guarantee that was granted to the 1st Defendant and she shall put the claimant to the strictest proof of same.
9. The 4th Defendant avers that she got to know about the loan when two officers of Intercontinental Bank Plc came to her residence at Ore sometimes in May/June 2011 and asked her to sign some documents which she declined to sign.?
?13ii. She did not give any form of consent to the 2nd Defendant to use her Original Certificate of Occupancy as part of collateral for a N10million Bank Guarantee Facility.
13iii. She did not follow the 2nd Defendant to the Claimant?s Bank to deposit her Original Certificate of Occupancy as part of collateral of a N10million Bank Guarantee Facility.?
(See pages 228-229 and 229-230 of the Records).
?Even though there was a claim and counterclaim, they were so intimately related, intertwined and interwoven that the success of one would indubitably connote the
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failure of the other. The issue as joined by the parties was on whether the Appellant was aware of, consented and came with the 3rd Respondent to the 1st Respondent Bank to deposit her title documents for use as collateral security for the facility granted to the 2nd-4th Respondents. The 1st Respondent asserted the positive, so it had the burden of proving its assertion.
The doctrine of burden of proof is encapsulated in the Latin Maxim ei qui affirmat non ei qui negat incumbit probatio, that is, the burden of proof lies on the one who alleges and not on him who denies. See ARASE vs. ARASE (1981) 5 SC 33 at 37, UMEOJIAKO vs. EZENAMUO (1990) 1 SCJN 181 at 189 and MAXIMUM INSURANCE CO. LTD vs. OWONIYI (1994) 4 NWLR (PT 331) 178 at 192. So the 1st Respondent having pleaded the existence of awareness, consent and personal deposit of the title documents by the Appellant had the burden of proving that fact: OKI vs. OKI (2002) 13 NWLR (PT 783) 89 at 105. The evidence in proof must be credible, valuable and of such quality as to have probative essence. See DIBIAMAKA vs. OSAKWE (1989) 3 NWLR (PT 107) 101 at 113 and 114 and ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96)
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182 at 208-209.
The Appellant denied that she was aware of, consented to or went with the 3rd Respondent to deposit her title documents at the 1st Respondent Bank or any bank; so the burden of proof was on the 1st Respondent who alleged the positive to prove. As stated in AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 NWLR 166 at 184, ei incumbit probatio, qui dicit non qui negat, cum per rerum naturam factum negantis probitio nulla sit, that is, the burden of proof lies upon him who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce any proof. Even though the burden of proof is not static, the 1st Respondent had to first adduce evidence to the reasonable satisfaction of the Court before the burden will shift to the Appellant to produce contrary evidence.
The Appellant argues that the findings of facts made by the lower Court are perverse. Now, a perverse finding or a perverse decision is one that ignores the facts or evidence before the Court and which when considered as a whole amounts to a miscarriage of justice. A perverse finding is a finding which is merely speculative and not based on any
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evidence before the Court. It is a finding that is unreasonable and unacceptable because it is wrong and completely outside the evidence before the Court. See NEPA vs. OSOSANYA (2004) 1 SC (PT 1) 159, OVERSEAS CONSTRUCTION COMPANY NIG LTD vs. CREEK ENTERPRISES (NIG) LTD (1985) 12 SC 112 and IWUOHA vs. NIPOST (2003) 4 SC (PT 11) 37 at 61.
With due deference to learned counsel, the pertinent consideration is not whether deposit of title documents constitutes equitable mortgage or whether there ought to be some document signed by a third party before his property can be used for equitable mortgage. Furthermore, it is also not whether the property was referred to in the offer letters since it is obvious that the Appellant is not a party in the offer letter. In my deferential view, the paramount consideration is whether the evidence established that the Appellant was aware, consented and personally deposited her title documents in company of the 3rd Respondent. This is the crux of the matter on which issues were joined.
It is the trial Court that has the duty of evaluation of evidence and ascription of probative value thereto. The trial Court sees the
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faces of the witnesses, hears their testimony, feels the tension and observes the demeanour of the witnesses. It is therefore within the province of the trial Court which saw, heard and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. There is a duty on the trial Court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT I) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50 ? 51.
There is little or no difficulty with perception of evidence, id est, receive all available relevant evidence. But what amounts to evaluation of evidence? This is how Oputa, JSC (of most blessed memory) explained it in ONWUKA vs. EDIALA (supra) at 208-209:
?What does evaluation of evidence consist of? What is the meaning of the
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expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc…..
Now talking of scale naturally leads one to the famous dictum of Fatayi-Williams, JSC (as he then was) in A. R. MOGAJI & ORS vs. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93:
?when an appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which has been given to the totality of the evidence before him, (the trial judge)…. Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to
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it…?
The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence…Even in Mogaji?s case…this Court held at p. 94:-
?Therefore in determining which is heavier, the judge will naturally have regard to the following:
(a) whether the evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible;
(d) whether it is conclusive; and
(e) whether it is more probable than that given by the other party.
It would appear that evaluation of evidence is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation
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involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts. See ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. STATE (1986) 5 NWLR (PT 46) 978 at 1005.
The lower Court held that the evidence preponderated in favour of the 1st Respondent on the vexed issue of the creation of the equitable mortgage. This is how the lower Court reasoned at pages 470-471 of the Records:
?Issue 3
On the counterclaim and the issue of the Title documents, it is the position of DW2, the 4th Defendant that she was unaware that her documents were used in securing the loan and that she deposited same with her daughter for safe keeping. This is placed on the scale of evidence opposite the above evidence and especially the evidence before the Court that DW2 came into the Bank with the 2nd Defendant to
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deposit the documents. To this Court?s mind, it is a matter of credibility.
This Court again found DW2 full of drama but did not find her to be a credible witness especially as to the whereabouts of this daughter, whom she stated phones her from a private number once a month but whom she does not phone AND whom she knows is still with her husband DW1 who took their kids to join her! This is also a daughter for whom she babysat. This Court did not believe her at all and finds her evidence convoluting and contradictory and this Court could safely find that she was merely covering up for the 2nd Defendant who no doubt has deliberately absconded out of jurisdiction to evade this debt and case.
Indeed, this was the contention of Claimant Counsel in his argument at pages 19 & 20 of his Final Written Address. He cited the case of OSADIM v. TAIWO (2010) ALL FWLR (Pt.534) 146 at 165 on this.
Learned Counsel for the 4th Defendant submitted at paragraph 4.00 of his Final Written Address that evidence of CW1 is mere hearsay as no document of authorization or consent on express terms was presented. He cited the following 2 cases: CHOBAMIDE v. BANK OF WEST AFRICAN LTD
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(1933 – 1966) 1 N.B.L.R. 290 at 291, OTTO WOLFF (NIGERIA) LTD V. NATIONAL BANK OF NIGERIA (1976-1984) 3 N.B.L. R. 272.
It is fairly well-settled law now that Officers at a Bank can give testimony from their Records which will not be taken to be hearsay for the peculiar reason of the revolving door of staff. See Section 89 of the Evidence Act 2011. See also OBIJIAKU V. NDIC (2002) 10 NWLR (Pt. 774) 201 AT 215.
This Court believed the evidence of CW1 founded on the premise that the 2nd Defendant was accompanied by the 4th Defendant to the Bank to deposit her documents. It is only the 2nd Defendant, in the view of this Court, who could tilt the balance to refute this positively in favour of the 4th Defendant if indeed this was the case. She never appeared in court at all.?
The lower Court then invoked Section 167 (d) of the Evidence Act against the Appellant because the 3rd Respondent (2nd Defendant at the lower Court) did not attend Court to testify. I iterate that it is only credible evidence that is to be put in the imaginary scale of justice in order to ascertain which weighs more: MOGAJI vs. ODOFIN (supra).
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The lower Court placed great premium on the evidence that the ?DW2 (Appellant) came into the Bank with the 2nd Defendant (3rd Respondent) to deposit the documents.? This evidence was the testimony of the 1st Respondent?s sole witness. It is the testimony of the witness that she was not in the bank at the time of the transaction. So she could not have seen the Appellant come into the bank with the 3rd Respondent to deposit the documents. The testimony of the 1st Respondent?s witness under cross examination is, inter alia, as follows:
?CROSS EXAMINATION BY OSHO ESQ.
Yes, I have been in Banking for 9 years and Ikotun Branch and 2 months ? not the Bank itself.
Q. All now told to Court is what you come here to state.
A. Yes, all said because I came into Bank in 2008 and I have spoken with Account Officer in question. Officers in Branch and I have gone through the documents on the transaction.
Yes, it is correct that the 1st Defendant came to 2nd Defendant to hand over her Certificate of occupancy for facility granted and taken. So she was aware of her Certificate of Occupancy being used as collateral.
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Q. So you were not there?
A. I was not in the branch; there are officers still in branch who were present when the 2nd Defendant came in to hand over her Certificate of Occupancy as collateral.?
(See pages 442 -443 of the Records)
By the above testimony, there were officers of the 1st Respondent who were present when the Appellant came to hand over her title documents but they were not called as witnesses. This aspect of the testimony is not a question of the revolving door of staff as the testimony is that the staff were still in the branch. Furthermore, there is no exhibit on the basis of which the 1st Respondent?s witness could have claimed to be documents she went through and saw the Appellant come to the bank and submit her title documents. The testimony of the witness on what officers in the branch, who were available to testify, but were not called, told her is definitely hearsay and inadmissible. See ARMELS TRANSPORT LTD vs. MARTINS (1970) LPELR (556) 1 at 7, UTTEH vs. THE STATE (1992) LPELR (6239) 1 at 11 & 21 and EGWONOWO vs. YAKUBU (2017) LPELR (43355) 1 at 16-17. It is not evidence that could have been put in the imaginary
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scale of justice on the basis of which to ascertain how the evidence preponderated. It has to be remembered that the Appellant denied being aware of, consented to or personally deposited her title documents. Having denied the fact she cannot produce any proof. It was for the 1st Respondent who affirmed the said facts to prove the same: AHMADU BELLO UNIVERSITY vs. MOLOKWU (supra).
The 1st Respondent strongly contends that the lower Court did not find the Appellant to be a credible witness. It is important to state that the lower Court did not hold that the Appellant is an unreliable or untruthful witness generally. The lower Court stated that it did not find the Appellant ?to be a credible witness especially as to the whereabouts of the daughter? (See page 471 of the Records). Be that as it may, the Appellant was consistent in her testimony even under cross examination in her denial that she was not aware, did not consent and did not personally deposit her title documents with the 1st Respondent. (See pages 450-453 of the Records). The pith of the disputation is whether the Appellant consented, was aware and personally deposited her title
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documents as copiously averred by the 1st Respondent. The perceived contradiction as to whether she gave the 3rd Respondent the documents for safekeeping or she forgot them in the 3rd Respondent?s house do not establish any awareness, consent or personal deposit of the documents. It will be speculative for a Court in the absence of anything in writing by the Appellant to so hold.
In ADISA vs. THE STATE (1991) 1 NWLR (PT 168) 490 at 500, Tobi, JCA (as he then was) underscored the legal position as follows:
?Judges are not allowed by the law to speculate or conjecture on possible facts. They do not have such jurisdiction. That is wrong. The only jurisdiction they have is to make use of the cold facts of the case as presented by the parties in open Court, and use them. They cannot do more. They cannot even do less. Such is the job of the Judge. After all, a judge is not a metaphysician. He is not even a soothsayer. He is simply a Judge of law.?
See also ARCHIBONG vs. ITA (2004) 117 LRCN 3801 at 3830.
Where evidence in respect of which issues have been joined is such as leaves the Court in doubt that the Court is led to
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speculate as to the more probable position, then the party who has the burden of proof has failed to discharge the evidential burden. See OSAWARU vs. EZEIRUKA (1978) 6 ? 7 SC, MOZIE vs. MBAMALU (2006) 7 SCNJ 411 and GIWA-OSAGIE vs. GIWA-OSAGIE (2009) LPELR (4533) 1 at 26.
Once again, it is only where the 1st Respondent adduced evidence to the reasonable satisfaction of the Court that the burden would have shifted to the Appellant to produce contrary evidence. The evidence adduced by the 1st Respondent was not such that would have reasonably satisfied a Court on the crucial question on which issues were joined between the Appellant and the 1st Respondent. The lower Court was consequently wrong to have invoked Section 167 (d) of the Evidence Act against the Appellant on the ground that the 3rd Respondent never appeared in Court at all on the basis that her testimony could have tilted the balance on whether the Appellant accompanied her to deposit the title documents. In the absence of admissible evidence by the 1st Respondent that the Appellant personally came to deposit the title documents, the burden of proof never shifted to the Appellant.
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It is rudimentary and hornbook law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the Court of trial that saw, heard and assessed the witnesses and where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court. However, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46 47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs.OLURONKE II ?
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(1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47 ? 48.
When as in this matter the assessment of the evidence does not turn on the demeanour of the witnesses, then the appellate Court is in as good a position as the trial Court to give credence to the accepted evidence on record in order to do justice to the parties by correcting the erroneous view taken of the evidence and the wrong conclusion drawn by the lower Court from the accepted evidence.
In the diacritical circumstances of this matter, the evidence on record does not conduce to proof entitling the 1st Respondent to an order for the sale of the Appellant?s property. The 1st Respondent having failed to establish on the evidence that the Appellant was aware, consented to and personally deposited the title documents of her property as equitable mortgage collateral. Indeed, the 1st Respondent was not circumspect in its acceptance of the deposit of the title documents. It seemed to have been carried away by the filial relationship between the Appellant and the 3rd Respondent. That was not the prudence dictated and required in banking transactions.
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In a summation, the issue for determination crafted by the Court must be resolved against the 1st Respondent. The lower Court on the preponderance of evidence and balance of probabilities was not correct when it entered judgment against the Appellant. Having already stated the intertwined nature of the relief claimed by the 1st Respondent against the Appellant and the Appellant?s counterclaim, the concomitance is that the lower Court ought to have entered judgment in favour of the Appellant; the 1st Respondent having failed to establish the relief claimed against the Appellant. The appeal accordingly succeeds and the decision of the lower Court entering judgment for the 1st Respondent in terms of paragraph 33 (c) of the Amended Statement of Claim is hereby set aside. Judgment is entered for the Appellant on her counterclaim and it is hereby declared and ordered that the 1st Respondent return to the Appellant, the Original Certificate of Occupancy registered as No. 44 at Page 44 in Volume 678 on the 9th June 1999 at the Land Registry Office at Akure, Ondo State forthwith. The Appellant is entitled to the costs of this appeal which I assess and fix at N250, 000.00.
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MOHAMMED LAWAL GARBA, J.C.A.: I agree
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment delivered by my Lord, the Hon. Justice Ugochukwu Anthony Ogakwu, JCA wherein he upheld the appeal.
?I agree with the said decision, and I also abide with the consequential orders made as to costs.
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Appearances:
Oladipo Olukuewu, Esq. with him, Tayo Abadariki, Esq.For Appellant(s)
Chief T. N. T. Okonkwo – for 1st Respondent.
2nd-4th Respondents absent and not represented by Counsel.For Respondent(s)
Appearances
Oladipo Olukuewu, Esq. with him, Tayo Abadariki, Esq.For Appellant
AND
Chief T. N. T. Okonkwo – for 1st Respondent.
2nd-4th Respondents absent and not represented by Counsel.For Respondent