NIGERIAN DEPOSIT INSURANCE CORPORATION v. CAPITAL OIL AND GAS INDUSTRIES LIMITED & ANOR
(2019)LCN/12784(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/L/945/16
RATIO
APPEAL: WHETHER ONUS IS ON THE APPELLANT IN AN APPEAL
“It is the duty of the Appellant to point out to the Court that the decision of the lower Court is wrong, where the Appellate Court becomes satisfied that the decision is wrong it will be set aside, but where the Appellant fails to show the error committed by the lower Court, the decision will be allowed to stand, on the duty and role of an appellant in an appeal, see; ODEDELE& ANOR V. AKANKE (2012) LPELR-9701 (CA), where my law Lord, MSHELIA JCA said as follows, ‘It is the law that the onus is on the appellant to satisfy the appellate Court that the decision on appeal was wrong. If he fails to do this the decision will be allowed to stand. See Akinloye V. Eyiyola (1968) NMLR 92 at 95; Obisanya v. Nwoko (1974) 6 SC 69 at 80; Woluchem v. Gudi (1981) 5 SC 291; Obudo v. Ogba (1987) 2 NWLR (pt. 54) 1 and Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 352 at 390.'” PER TIJJANI ABUBAKAR, J.C.A.
APPEAL: ROLE OF THE RESPONDENT IN AN APPEAL
“‘It is the law that the onus is on the appellant to satisfy the appellate Court that the decision on appeal was wrong. If he fails to do this the decision will be allowed to stand. See Akinloye V. Eyiyola (1968) NMLR 92 at 95; Obisanya v. Nwoko (1974) 6 SC 69 at 80; Woluchem v. Gudi (1981) 5 SC 291; Obudo v. Ogba (1987) 2 NWLR (pt. 54) 1 and Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 352 at 390.’ The traditional role of a Respondent on the other hand is to defend the judgment of the lower Court, where the Respondent for some reasons also becomes aggrieved by the same decision of the lower Court, he may also express his discontent by way of filing cross appeal against the judgment, see; ADEFULU V. OYESILE (1989) 5 NWLR (Pt. 112) 377” PER TIJJANI ABUBAKAR, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“The law is very well settled that in conducting dispassionate evaluation of evidence the trial Court takes several factors into account, the Court must be satisfied that the evidence sought to be relied on is, relevant, admissible, credible, and more probable than the one adduced by the other side. See: MOGAJI V. ODOFIN (1978) 4 S.C 91 the Court held as follows:
‘…It is also well settled that in a civil action, before the trial Court which hears the evidence of parties comes to a decision as to which evidence it believes or accepts, and which evidence it rejects, it must first put the totality of the testimony adduced by both parties on an imaginary scale. It must put the evidence of the Plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. It should see which is heavier and this does not depend on the number of witnesses called by each of the parties but on the quality and probative value of the evidence of those witnesses…'” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
NIGERIAN DEPOSIT INSURANCE CORPORATION (NDIC)
(Liquidator of All States Trust Bank Plc (In-Liquidation) Appellant(s)
AND
1. CAPITAL OIL AND GAS INDUSTRIES LIMITED
2. DEACON PATRICK IFEANYI UBAH Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This appeal emanates from the Judgment of the Federal High Court Lagos Division delivered by ANEKE J, on the 29th day of April 2016 in suit No. FHC/L/CS/422/2010.
By way of brief summary of facts grounding the action at the Court below and this appeal, the facts are that in 2004, the 1st Respondent in this appeal applied for credit facility from the defunct All States Trust Bank Plc (in liquidation), the Credit facility was in the form of Bank Guarantees in the sums of N71,740,00.00 and N264, 264,000.00.
The Credit facility was granted through offer letters dated 7th June 2004. The Appellant alleged that the credit facilities were accepted and utilized by the 1st Respondent and that the 2nd Respondent granted personal guaranty executed on the 17th day of July 2004.
Along the line, the Bank, All States Trust Bank Plc was unable to meet the recapitalization requirement of minimum capital of N25, 000,000,000.00, the Central Bank of Nigeria therefore in exercise of its statutory powers revoked the Banking license of the Bank, consequent upon the revocation therefore, the Federal High Court of Nigeria appointed the Appellant the liquidator of the Bank. As at 16th January 2004 when the Banking license of the Bank was revoked, records showed that the Respondents were indebted to the Bank to the tune of N188,226,753.70, out of this sum, Appellant said the Respondent paid N10,600,000.00 towards reducing their indebtedness to the Appellant.
On the part of the Respondents, they unequivocally denied any indebtedness to the Appellant, that the credit facilities allegedly evidenced by the offer letters dated 7th June 2004 and 3rd August 2004 were never disbursed by the Appellant and the Respondents did not draw down and or utilize the said facilities. The Respondents complained that they protested against some irregularities and debit entries in their account which were persistently neglected by the Appellant.
The Appellant sent demand letters, the Respondents denied any indebtedness. The Appellant on the 1st day of April 2010 as Plaintiff commenced action by writ of summons and statement of claim before the Federal High Court, claiming as follows:
The sum of N177,626,754.00 being the outstanding indebtedness of the Defendant to the Plaintiff as at September 2006 on the Financial facilities granted the Defendant by All States Trust Bank Plc (In-liquidation).
The lower Court at the conclusion of trial dismissed the claim of the Appellant, in other words Judgment was given in favor of the Respondents.
The Appellant became aggrieved by the decision of the lower Court and therefore brought Notice of Appeal to this Court on the 26th day of July, 2016 premised on five grounds of appeal.
Learned Counsel Anozie Douglas Benson filed the Appellants brief of argument on the 22nd day of November 2016, deemed as properly filed and served on the 15th day of October 2018, while the brief of the Respondents was filed by learned Counsel Collins N. Ogbonna on the 20th day of February 2017 also deemed as properly filed and served on the 15th day of October 2018. The Appellant filed no reply brief.
In the Appellants brief of argument, learned Counsel nominated sole issue for determination, the issue reads as follows:
Whether the learned trial Judge was right when he dismissed the Appellants claim on the ground that the Appellant failed to lead evidence on the 1st Respondents statement of Account Exhibit ?P8? and thereby failed to prove how it arrived at the debit balance in the said statement of Account (Distilled from grounds 1,2,3, and 4 of the Notice of Appeal).
On the part of the Respondents, learned Counsel also crafted a corresponding sole issue for determination, also reproduced as follows:
Whether in the absence of any credible evidence (whether oral or documentary) to support the claims of the Appellant, the lower Court was right to have dismissed suit No. FHC/L/CS/422/2010. Nigeria Deposit Insurance Corporation (NDIC) Liquidator of All States Trust Bank Plc) (In- Liquidation) Vs. Capital Oil & Gas Industries Limited (2) Deacon Patrick Ifeanyi Ubah.
Both Counsel therefore made submissions on behalf of their clients. I will now proceed to consider the submissions of Counsel on the sole issue crafted by each of the parties.
SUBMISSIONS OF COUNSEL FOR THE APPELLANT
Submitting on the sole issue nominated for determination by learned Counsel for the Appellant, he said from the pleadings and evidence before the trial Court, the claim of the Appellant was based on the 1st Respondents statement of account admitted in evidence at the Court below as Exhibit P8. Learned Counsel said the Appellant predicated its claim that the respondents were indebted to it based on the strength of the said exhibit. In coming to a decision of Respondent?s indebtedness to the Appellant, the Learned Trial Judge referred to the exhibit and said the Plaintiffs lone witness did not give evidence of how the Respondents became indebted to the Appellant. Learned Counsel referred to pages 436-437 of the records of appeal where the lower Court came to this Conclusion, and said the conclusion does not represent a true and correct reflection of the evidence before the Counsel, learned Counsel submitted that the learned Trial Judge did not evaluate the evidence properly, that if he had properly evaluated the evidence he would have come to a different conclusion. In support of this submission, he relied on the decisions in MINISTER V. COMMISSIONER OF POLICE (2016) ALL FWLR (Pt. 841) 1521 at 1535, OGUNDALU V MACJOB (2015) ALL FWLR (Pt. 784) 103 at 117, AFOLABI V. WESTERN STEEL WORKS LTD (2012) 17 NWLR (Pt. 1329) 286.
Appellant further submitted that at the Court below, it led credible and unchallenged evidence in support of its claim, and the failure by the lower Court to properly evaluate the evidence led to a wrong decision resulting in the dismissal of its claim, Counsel said it was curious that having led such credible and unchallenged evidence, the lower Court decided to look the other way, he urged this Court to re-evaluate the evidence and set aside the judgment of the lower Court.
Learned Counsel made specific reference to the evidence led at the trial by the Claimant, he referred to page 155 of the records of appeal, where the statement on oath of the witness for the Claimant disclosed the following facts:
(1), The sum of N188,226,753.70 was outstanding on the facilities as at January, 2006, when the Banking licence of All States Trust Bank Plc (In-Liquidation) was revoked by the Central Bank of Nigeria. (Paragraph 9 of the statement on oath, page 155 of the records of appeal).
(2) The sum of N188,226,753.70 was made of the principal sum as at 30th December, 2005 and N3,236,599 accumulated interest thereon between 1st and 16th January, 2006. (paragraph 10 of the statement on oath page 155-156 of the records of appeal).
(3) That the Bank guarantee for the sum of N264, 264.00 crystallized and the sum was paid to the intended 3rd Party Honeywell Oil & Gas Limited on the 18th of April 2005., (pages 56 and 263 of the records of appeal), the sum of N263 Million was debited into the customer’s account on 18th April 2005.
(4) That the Respondents paid the sum of N10,600,000.00 in two instalments of N5,600,000,00. AND N5,000,000.00 respectively in part liquidation of the outstanding debt to All States Trust Bank (In liquidation) (Paragraphs 12 and 13 of written statement on oath and page 15 and 264 of the records of appeal).
(5) That the Respondents are still indebted to the Appellant to the tune of N177,626, 754.00 derived from the outstanding sum of N188, 226, 750.70 as at January 2006 minus the sum of N10,600,000.00 paid in August 2006 in part liquidation of the debt. (paragraph 16 of the statement on oath of Appellant’s witness at page 157 of the records of appeal).
Learned Counsel for the Appellant said the lower Court failed to consider and properly evaluate the above specific points already in evidence before the Court.
Learned Counsel said Exhibit P8, constitutes the principal sum of the loan, the interest and the repayment made by the Respondent. Counsel said a careful consideration of the said exhibit would reveal how the loan came about, it was therefore an error on the part of the learned trial Judge to conclude that the Claimant/Appellant herein failed to lead credible evidence to establish how the loan as reflected in exhibit P8 came about.
Learned Counsel for the Appellant said the Respondents made allegations of irregularities and inconsistencies in the said entries in Exhibit P8, but counsel said the Respondents failed to particularise the inconsistencies and irregularities alleged in the said Exhibit p8. Learned Counsel also referred to the attempt by the Respondents to point out irregularities by referring to Exhibit D1 to discredit the entries in exhibit P8, but Counsel said this attempt by the Respondents was discountenanced. The Respondents therefore failed to make specific allegation of multiple entry, undue charges or manipulation in the exhibit. Learned Counsel for the Appellant therefore submitted that the averments in paragraphs, 5, 8,9 and 12 of the Respondents amended statement of Defence are mere general denials and bare allegations, which must not be elevated to the status of a dispute which without more cannot impeach the veracity of the debit balance in the statement of Account especially in the face of other credible evidence adduced by the Appellant.
It was the contention of Counsel for the Appellant that bare and generalized allegations by the Respondent are grossly insufficient to discredit Exhibit P8. That for allegations of multiple entry and manipulations to constitute sufficient basis, they must be traced to specifics and not generalized and bare instances, he relied on the decision in THOR LIMITED V. FIRST CITY MERCHANT BANK LIMITED (2005) 7 SCLR 51 at 62, where the Court held that there was no evidence that the Respondent challenged any entry in the statement of account to justify allegations of manipulations, it was also contended by learned Counsel that Exhibit P8 was tendered and admitted in evidence pursuant to the provisions of Section 84(1) of the Evidence Act 2011, that any statement contained in a document produced by a computer such as Exhibit P8 shall be admitted as evidence of the facts contained in the statement where the requirements under Sub-section (2) of the section are met. Counsel specifically contended that at the point of admitting Exhibit P8 all the requirements under Section 84(2) of the evidence Act were satisfied, the witness who testified tendered certificate of identification dated 19th June, 2013.
Learned Counsel for the Appellant then submitted that with the evidence of identification, the contents of Exhibit P8 ought to have been taken as sufficient evidence of the contents, specifically since there was no credible challenge to the contents of the said document. The Respondent according to Counsel failed to point out any specific case of wrongful entry in the said exhibit, Counsel then referred this Counsel to the decision in EHINMOSA V. NNPC [2016] All FWLR [Pt. 837) 686 at 710-711. Learned Counsel contended that it was wrong on the part of the trial Court to conclude that Exhibit P8 was not sufficient proof by the Appellant of its claim before the lower Court. That since the said exhibit was admitted pursuant to Section 84 (1) and (2) of the Evidence Act 2011, it must be taken as sufficient proof of the contents of the said statement, he also relied on the decision in YESUFU V. AFRICAN CONTINENTAL BANK LTD (1) (197601984) 3 NBLR at 30 to content that Section 84 (1) and (2) of the Evidence Act is in pari materia with section 5(1) & (2) of the English Civil Evidence Act, 1968.
It was further contended by learned Counsel for the Appellant that the findings by the learned trial Judge at page 436 of the records of appeal indicating that the guarantee as per Exhibit P2 was 100% utilized along with Exhibit P8 constitute sufficient proof of the claim of the Appellant. That the learned trial Judge also discountenanced Exhibit D1 Respondents Auditors Summary Report, it was clear that the lower Court had sufficient materials before it to find in favour of the Appellant, the conclusion reached by the learned trial Judge was therefore perverse. Counsel said the decision by the learned trial Judge to discountenance Exhibit D1 meant that the Respondents failed to establish the alleged multiple entry. The Respondent according to learned Counsel failed to discredit the evidence of the Appellant, he relied on the decision in OBI V. UZOEWULU (2009) ALL FWLR (Pt. 499) 518 at 528 and MOGAJI V. ODOFIN (1978) 4 S.C 91.
Learned Counsel finally urged this Court to resolve this sole issue in favour of the Appellant and allow the appeal.
SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS
Submitting on Respondent’s sole issue for determination, learned Counsel said, upon being served the Respondents amended statement of defence, the Appellants elected not to file any reply to the statement of defence or join issues with the Respondents on the issues in the amended statement of defence, Counsel said the Respondents disputed the claim by the Appellants, they denied indebted and contended that the loan was never disbursed, learned Counsel said in the face of the denial, the Appellant as Plaintiff still elected not to file any reply, that since the Appellant did not file any reply to the amended statement of defence it must be taken that facts contained in the amended defence were deemed admitted by the Appellant. Leaned Counsel contended that even though the Appellant is not bound to file reply to the emended statement of defence, but where the statement of defence raises new issues of facts not arising from the statement of claim, the Plaintiff is bound to deal with the new issues in his reply, otherwise he will be deemed to have admitted the facts, to emphasize on this point learned Counsel relied on the decision in PHILLIPS V. E.O.C & INDUSTRIES CO. LTD (2013) 1 NWLR (Pt. 1336) 618 at 637-639. Learned Counsel for the Respondents therefore urged this Court to hold that since the Appellant failed to file reply to amended statement of defence in the instant appeal, it must be deemed to have admitted the new facts, the Respondents therefore require no evidence in proof of the facts.
On proof in civil matters Counsel submitted that the burden of proof is squarely on the Plaintiff, he must succeed on the strength of his case and not on the perceived weakness of the defence, he relied on the decisions in UBN V. AKINRINMADE (2000) 2 NWLR (Pt. 645) 466 at 479, SUNMONU V. SAPO (2001) 5 NWLR (Pt. 705) 59 at 77 and Sections 131, 132, and 133 of the Evidence Act, 2011. Counsel submitted that it was wrong on the part of the Appellant to contend that the lower Court ought to have entered judgment in its favour when it clearly failed to discharge the burden on it to adduce credible evidence in proof of its claim before the Court. Counsel therefore urged this Court to dismiss the appeal. Submitting on the credibility of Appellants witness, learned Counsel from the evidence of the witness called by the Appellant, the case put forward was that the Respondents were granted credit facilities in the form of Bank guarantee in 2004.
Counsel said the Appellant also stated that the Respondents were indebted to it in the form of Bank guarantee to third parties, and that upon default to the Appellant would pay the guaranteed sum to the third party, Counsel also contended that the Appellant only became aware of the indebtedness in 2006 when the Bank could not meet its N25 Billion recapitalisation benchmark set by the Central Bank of Nigeria for Commercial Banks in Nigeria, upon its failure to meet up with the requirement, the Bank had to go into liquidation. Learned Counsel also submitted that the Appellant never came into direct contact with the Respondents on the said transaction giving rise to the suit at the Court below, that the Appellant knew nothing about the transaction that gave rise to the action at the Court below.
Counsel for the Respondents agreed that a staff of a Company can give evidence in respect of a transaction he did not conduct personally but in the instant case there is an exception to the principles especially where the witness has never been in the employment of the Company about whose actions he is testifying, Counsel said where a staff gives evidence in respect of a transaction he did not take part in, that fact will have effect on the weight to be attached to his evidence, he relied on KATE ENTERPRISES LIMITED V. DAEWOO (1985) 7 S.C. 1 at 48-50 and ISHOLA V. SOCITE GENERALE BANK LIMITED (1997) SCNJ 1.
Learned Counsel for the Respondents said in the instant appeal, PW1 who gave evidence in relation to the transaction between All States Trust Bank PLC and the Respondents is a staff of NDIC a completely different Company his evidence is therefore not credible and cannot be relied upon. Counsel referred to the evidence of PW1 under cross-examination at pages 256-264 of the records of appeal. Counsel said the Appellant ?s witness only tendered Exhibit P8 and failed to give any further explanation on the document, this according to Counsel makes his evidence unreliable. Counsel relied on the decision in JALICO LTD V. OWONIBOYS TECHNICAL SERVICES LTD, (1995) 4 NWLR (Pt. 391) 534 at 546 and submitted that failure to call witnesses who participated in the transaction leading to the suit raised presumption of withholding evidence. Counsel said the evidence led by the Plaintiff failed to establish what was claimed in the Plaintiff?s statement of account, he therefore urged this Court to so hold.
Learned Counsel for the Respondents also contended that, the Appellant failed to establish the alleged indebtedness of the Respondents. Counsel submitted that it is not the law that entry in a statement of account constitutes conclusive evidence of indebtedness by a Customer to his Bank, that the fact that the document is admitted in evidence does not make mandatory on the Court to accept such evidence as having proved or established the claim. Counsel referred this Court to Section 84 of the Evidence Act to argue that mere entries in a statement of account admitted in evidence cannot be enough to constitute sufficient evidence of proof of liability. The learned Counsel submitted that statement of account is not sufficient explanation of debt, that evidence needs to be adduced on its contents, there must be proper breakdown of the entries so that the Court appreciates the position without going into private computation, he relied on B.E.G.H. LTD & 2 ORS V. UHS & L LTD (2011) 7 NWLR (Pt. 1246) 246 at 286.
Learned Counsel referred to the decision in SAMABEY INTERNATIONAL COMMUNICATIONS LTD. CELTEL NIG LTD (2013), Appeal NO. CA/K/131/ 2010, LPELR-20758 (CA), to submit that any person claiming on the basis of debit balance in a statement of account has obligation to adduce both documentary and oral evidence explaining clearly the entries to show how the overall debit balance came about, Counsel said the correct position of the law is as provided in Section 51 of the evidence Act 2011, and the lower Court clearly understood the provisions of the law and applied it in the instant case, he referred to pages 429-437 of the records of appeal where the learned trial Judge clearly stated that it is the duty of the Plaintiff to lead credible evidence to show the Court how the indebtedness came about relying on the provisions of Section 51 of the Evidence Act 2011 and the decision in YESUFU V. ACB (1981) 12 NSCC 36. Learned Counsel said the position of the lower Court cannot be faulted because that is the settled position of the law, he also submitted that a person cannot just dump a statement of account on the Court without more and expect judgment, relying on the decision in HABIB NIGERIA BANK LTD. V. GIFTS UNIQUE NIG LTD (2004), and submitted that the Plaintiff must discharge the onus of proof on preponderance of evidence. A party in litigation becomes entitled to what he deserves as proved.
Counsel urged this Court to hold that the Appellant failed to establish its claim before the lower Court, and urged that the appeal be dismissed.
The Appellant in this appeal filed no reply brief.
RESOLUTION
Each of the contending parties in this appeal nominated one issue for determination, upon a close look at the sole issue submitted by each party, it appears to me that while the Appellant is contending that there was sufficient evidence to entitle it to judgment, the Respondents hold the view that the Appellant did not adduce sufficient evidence in proof of its claim before the Court.
It is the duty of the Appellant to point out to the Court that the decision of the lower Court is wrong, where the Appellate Court becomes satisfied that the decision is wrong it will be set aside, but where the Appellant fails to show the error committed by the lower Court, the decision will be allowed to stand, on the duty and role of an appellant in an appeal, see; ODEDELE& ANOR V. AKANKE (2012) LPELR-9701 (CA), where my law Lord, MSHELIA JCA said as follows
“It is the law that the onus is on the appellant to satisfy the appellate Court that the decision on appeal was wrong. If he fails to do this the decision will be allowed to stand. See Akinloye V. Eyiyola (1968) NMLR 92 at 95; Obisanya v. Nwoko (1974) 6 SC 69 at 80; Woluchem v. Gudi (1981) 5 SC 291; Obudo v. Ogba (1987) 2 NWLR (pt. 54) 1 and Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 352 at 390.”
The traditional role of a Respondent on the other hand is to defend the judgment of the lower Court, where the Respondent for some reasons also becomes aggrieved by the same decision of the lower Court, he may also express his discontent by way of filing cross appeal against the judgment, see; ADEFULU V. OYESILE (1989) 5 NWLR (Pt. 112) 377, where my law lord NNAEMEKA-AGU JSC said as follows;
“This Court has stated it in so many cases that the traditional role of a Respondent to an appeal is to defend the judgment appealed against. If he wants to depart from this role by attacking the said judgment in any way, he is obliged by the rules to file a cross appeal. See on this Lagos City Council v. Ajayi (1970) 1 All N.L.R. 291. Eliochin (Nig.) Ltd. & Ors. v. Victor Ngozi Mbadiwe (1986) 1 N.W.L.R. (Pt. 14) 47.”
The case of the Appellant is that it tendered Exhibit P8 and called witness in proof of its claim before the lower Court, that the contents of the exhibit and the evidence of the witness constitute sufficient proof of its claim before the lower Court, but the lower Court failed to properly evaluate the evidence and therefore came to a wrong decision, Appellant also contended that, having discountenanced Exhibit D1, the lower Court ought to have given judgment in favour of the Appellant.
The Respondent on the other hand in defending the Judgment of the lower Court contended that, the Appellant failed to adduce credible evidence in support of its claim, that the Appellant ought to have led evidence in proof of its claim beyond just tendering Exhibit P8, that PW1 who came to testify for the Appellant at the Court below never worked for the Appellant, and was never a party to the transaction that gave rise to the action in Court. Respondents therefore contended that the lower Court was perfectly justified in coming to the conclusion that the Appellant as plaintiff at the Court below failed to adduce credible evidence in proof of its claim. The decision of the lower Court according to Counsel for the Respondents was just and proper.
The issue central to the determination of Appellant’s appeal relates substantially to the evaluation of evidence by the lower Court, before I proceed to consider the nature of the evidence led by the parties and whether the conclusion reached by the lower Court was appropriate or not. The law is very well settled that in conducting dispassionate evaluation of evidence the trial Court takes several factors into account, the Court must be satisfied that the evidence sought to be relied on is, relevant, admissible, credible, and more probable than the one adduced by the other side.
See: MOGAJI V. ODOFIN (1978) 4 S.C 91 the Court held as follows:
‘…It is also well settled that in a civil action, before the trial Court which hears the evidence of parties comes to a decision as to which evidence it believes or accepts, and which evidence it rejects, it must first put the totality of the testimony adduced by both parties on an imaginary scale. It must put the evidence of the Plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. It should see which is heavier and this does not depend on the number of witnesses called by each of the parties but on the quality and probative value of the evidence of those witnesses…’
See also the decision of this Court in WAEC V. MEKWUNYE (2016) LPELR-40350 (CA) where this Court per NDUKWE-ANYANWU, JCA said as follows:
“In the evaluation of evidence, the trial Courts are guided by the following principles, namely: (a.) whether the evidence is admissible (b.) whether the evidence is relevant (c.) whether the evidence is credible (d) whether the evidence is conclusive and (e) whether the evidence is more probable than that given by the other party. Mogaji vs Odofin (1978) 4 SC pg. 91, Akande Industries Ltd vs. Olubode (2004) 4 NWLR Pt.862 pg. 1.”
From the authorities cited therefore, the trial Court must have good reasons for accepting a particular set of facts in proof of a matter before it, before the trial Court comes to a decision it must be shown that the evidence relied on is admissible, relevant, credible, cogent and more probable than the evidence of the adverse party.
Both parties filed their pleadings at the Court below and their respective witnesses filed their statements on oath. The Appellant’s/Plaintiff?s statement on oath deposed to by Mr. Ishaya Dorkur Zhakom is at pages, 154-157 of the records of appeal, of particular relevance are paragraphs 4-15 of the statement on oath, the relevant paragraphs are reproduced as follows:
4. I recall that on the 16th of January, 2006, the Central Bank of Nigeria (CBN) pursuant to its powers revoked the banking licence of the then All States Trust Bank Plc following the said Banks inability to meet the required statutory minimum Capital of 25, Billion for Banks in Nigeria.
5. That subsequent to the revocation aforesaid, the Federal High Court, Lagos appointed Nigeria Deposit Insurance Corporation (NDIC) the Plaintiff herein the liquidator of Allstates Trust Bank Plc (In liquidation).
6. I recall further that sometime in 2004, the 1st Defendant applied for and was granted financial facilities by Allstates Trust Bank Plc (In liquidation) in the respective sums of N71,740,000.00 (Seventy-One Million, Seven hundred and Forty Thousand Naira) and N264, 264,000.00 (Two Hundred and Sixty-four million, Two Hundred and Sixty-four Thousand Naira) I refer to and rely on the offer/Accept letters dated 7th June, 2004 and 3rd August, 2004 respectively.
7. That the said facilities were accepted and fully utilized by the 1st Defendant.
8. That the 2nd Defendant personally guaranteed the said facilities, I refer to and rely on the respective personal Guarantees of the 2nd Defendant executed on the 17th of July, 2004 and 11th of August, 2004.
9. That as at the time of revocation of the banking licence of Allstates Trust Bank Plc (In liquidation) in January 2006 and subsequent appointment of the Plaintiff as its Liquidator, the 1st Defendant was indebted to Allstates Trust Bank Plc (In Liquidation) to the tune of N188, 226, 753. 70 (One Hundred and Eighty-eight Million, Two Hundred and Twenty-six Thousand, Seven Hundred and Fifty-three Naira, Seventy kobo).
10. That the sum of N188,226,753.00 (One Hundred and Eighty eight Million, Two Hundred and Twenty-six Thousand, Seven Hundred and Fifty three Naira, Seventy Kobo) outstanding on the facilities as at 16th January, 2006 is made up of N184, 990, 154.22 (One hundred and eighty four million, nine hundred and ninety thousand, one hundred and fifty four Naira, twenty two kobo) outstanding as at 30th December, 2005 plus interest in the sum of N3, 236,599.48 (Three million, two hundred and thirty six thousand, five hundred and ninety naira, forty eight Kobo) for half of January 2006 i.e. 16 days out of 31 days in January 2006. I refer to and rely on the statement of account of the 1st Defendant.
11. That despite several demands on the defendants to liquidate their indebtedness to the Plaintiff, the Defendants had failed, refused and or neglected to liquidate their debt to the Plaintiff. I refer to and rely on the Plaintiffs letter of Demand to the Defendants dated 15th January, 2007.
12. That the defendants in admitting their indebtedness had before the Plaintiffs letter of demand of 15th January, 2007 paid a total sum of N10,600,000.00 (Ten million, six hundred thousand naira) respectively to reduce their outstanding indebtedness in respect of the facilities in issue, I refer to and rely on the 1st Defendants Intercontinental Bank Plc’s cheque in the sum of N5, 600,000.00 dated 23rd August, 2006 and the 1st Defendant?s statement of Account.
13. That the sum of N10,600,000.00 (Ten million, six hundred thousand naira) paid by the Defendant as aforesaid was paid after the liquidation of Allstates Trust Bank Plc (In liquidation) and such post liquidated payments are not reflected in the statement of Account of the affected Bank such as Allstates Trust Bank Plc in the instant case.
14. That the defendants have not made any other payment towards the liquidation of their indebtedness despite repeated demands by the Plaintiff. I refer to and rely on the Plaintiff’s letter of Demand to the Defendants Consultants Messrs Fred Balogun & Co dated 6th January 2010.
15. Upon the continuous failure or refusal of the Defendants to liquidate their debt despite the various letters of demand written to the defendants by the Plaintiff instructed its solicitors Messrs Osaretin Giwa-Osagie & Co. who wrote to the Defendants on the 2nd of March 2010 requesting the Defendants to liquidate their outstanding indebtedness to the Plaintiff. I refer to and rely on the Plaintiff?s solicitor?s letter of demand to the Defendants dated 2nd March 2010.”
On the part of the Respondents, Nwabufo Osuigwe deposed to statement on oath at page 70 of the records of appeal, the relevant paragraphs are from paragraphs 5-18 of the said statement on oath, the paragraphs are reproduced as follows;
5. That I know as a fact that the defendants are not indebted to the Plaintiff All States Trust Bank Plc. (In liquidation) herein after referred to as the ?Bank? to the alleged sum of N188,226,753.07 (One hundred and eighty-eight Million, Two Hundred and Twenty-Six Thousand, seven Hundred and Fifty Three Naira, Seven Kobo or any other sum at all.
6. That I equally know that the Plaintiff (the Bank) failed to abide by the terms and conditions under which the facilities were granted to the defendants as it began to charge extortionate and unconscionable rates as interest on the two accounts which are far and above the rate agreed upon by both parties.
7. That the Bank also indulged in several over debiting and do double or multiple debit entries on the defendant?s accounts which later resulted in the defendants lodging series of complaint on the accounts over-bloated with unnecessary debit entries.
8. That the Defendants further contend that the Plaintiff had persistently neglected and or totally ignored the complaint protest on the accounts by the defendants request to call for a meeting of accounts reconciliation to know the true balance on the accounts.
9. That despite several demands, the Plaintiff and the Bank refused to furnish the defendants with periodic/regular Bank statements of the 1st Defendant?s accounts in respect of the two facilities.
10. That I know as of fact that the defendants had consistently and regularly servicing the two facilities which is evident on admission made by the Plaintiff in its statement of claim.
11. That the defendants could not have been in any way indebted to the Plaintiff on these accounts as several payments and cash lodgements were made in excess of the facilities which should place the two accounts in substantial credit.
12. That the defendants shall contend at the trial that the statement of account exhibited by the Plaintiff to the list of exhibits is fraught with discrepancies and of particular note are double or triple entries and omissions to affect a reversal of these excess charges in the name of interest debited into the 1st Defendants accounts with the Plaintiff.
13. That further to paragraph 7 and 10 above, I know as of fact that it was after persistent complaint and demand by the Defendants to the Plaintiff that led to an all parties meeting with the Plaintiff wherein the 1st Defendants firm of appointed External Auditors Messrs. Fred Balogun & Co (Chartered Accountants) were in attendance and who also complained bitterly on the discrepancies noticed on the 1st Defendants account with the Plaintiff.
14. That further to paragraph 11 above, it was at the said meeting the defendants auditors Messrs. Fred Balogun & Co were mandated to carry out an independents audit of the 1st Defendants accounts with the Bank with a view to ascertain the true position of the balance on the two accounts.
15. That it was after persistent demand and the meeting with the Defendants External Auditors that the statement of Accounts dated 21st March 2004 to 30th November 2004 was released to the defendants lo and behold it became clear upon a single glance of the documents to see that the Plaintiff (Bank) has been charging extortionate rates of interest above the agreed rate of interest by the parties, which warranted their complaint and protest by the defendants to the Bank officials. The defendants hereby pleaded the said bank statement of accounts of the defendants dated 1st March 2004 to July, 2007 and the Plaintiff is put on notice to produce the original copy.
16. That it was after the auditing of the two accounts by Messrs. Fred Balogun & Co and reconciliation exercises, the summary report so submitted to the parties, it was discovered that contrary to the Plaintiffs claim, the Bank is the one actually indebted to the Defendants with respect to their failure to account for the sum of N163,414,167.83 (One hundred and sixty-three million four hundred and fourteen thousand, one hundred and sixty-seven naira. eighty-three kobo).
17. That I know as of fact that if the plaintiff allows a proper reconciliation of accounts the sum outstanding on the credit facilities will be far below the amount being claimed by the Plaintiff as to justify the auditor?s summary on the two accounts.
18. That the defendants states that any amount that may now be alleged to stand to the credit of the 1st Defendants account in the books of the Plaintiff does not reflect the true and correct statement of the 1st Defendant account with the Plaintiff, the Plaintiff having failed to accede to the defendants request for reconciliation of account to ascertain the true position on account with the Plaintiff.
The witnesses who offered the above statements on oath, testified in Court and each adopted his statement on oath, the witness for the plaintiff testified at pages 257-264 of the records of appeal and tendered exhibits, the witness for the Appellant adopted his statement on oath and was cross-examined by learned Counsel for the Respondents. On the part of the Respondents, their witness Nwabufo Osuigwe testified at pages 266- 271 adopted his statement on oath and tendered exhibits., the witness was also cross-examined by learned Counsel for the Appellant.
From the evidence of the Plaintiff, it focused on the statement of account of the Defendants/Respondents admitted as Exhibit P8. On the part of the Defendants they focused on Exhibit D1 where they alleged manipulation and wrong entries.
The learned trial Judge while dismissing the Appellants claim said as follows at page 436-437 of the records of appeal;
‘……. The Plaintiffs relied mainly on Exhibit P8, the defendants statement of account with the Allstates Trust Bank Plc, and Exhibit P2, the letter of offer and acceptance of N264, 264,000.00.
The Defendants on the other hand, relied on allegations of manipulations and wrong entries in Exhibit P8 their statement of Account with the Allstates Trust Bank Plc, and Exhibit D1 summary Report by Messrs Balogun & Co. the 1st Defendants External Auditors tendered by the 1st Defendants Company Secretary/Legal Adviser. Since DW1 is not one of the persons that prepared Exhibit D1 and also does not work with Messrs. Balogun & Co., I doubt whether Exhibit D1 was properly admitted in evidence. I will therefore discountenance Exhibit D1 in the resolution of the lone issue that emerges in this case.
In any case, the Plaintiffs lone witness, PW1 apart from tendering Exhibit P8 (referred to by both Plaintiff and Defendants in their final written addresses as Exhibit P7) did not give any explanation on how the debit balance contained in Exhibit P8 was arrived at.
The Plaintiff simply tendered Exhibit P8 and left the Court to deduce how it came about the debit balance in Exhibit P8 claimed in the writ of summons and the statement of claim.
The statement of account, Exhibit P8 was prepared by the Allstates Trust Bank Plc, without any impute by the 1st and 2nd Defendants. The Exhibit P8 is being disputed by the 1st and 2nd Defendants. The least the Plaintiff could have done is to lead credible evidence explaining how it came about the debit balance in Exhibit P8 its own document.
After all, the onus of proof is on the Plaintiff to prove the Defendants indebtedness to it. See Section 51 of the Evidence Act and the case of YESUFU V. ACB (1981) 12 NSCC 36.
Section 51 of the Evidence Act, 2011 states as follows;
‘Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.’
Accordingly, the Plaintiffs case is hereby dismissed for failure to lead evidence on the 1st Defendants statement of Account with it and thereby failing to prove to the Court how it arrived at the balance in the said statement of Account which the 1st Defendant disputes.
Cost of the sum of N20,000. (Twenty Thousand Naira, is awarded against the Plaintiff in favor of the 1st and 2nd Defendants.
HON JUSTICE C. J. ANEKE
JUDGE
29TH DAY OF APRIL 2016.
The Appellant through Counsel contended that even though the Respondents contested the claim, the basis of their contest Exhibit D1 was discountenanced by the lower Court, this in effect therefore means the basis of Respondents contest was no longer in place. It must be stated here that Exhibit D1 constitutes basis of allegation of irregularities, manipulations and wrong entries alleged by the Defendants, the exhibit was discountenanced by the lower Court. I am fully conscious of the fact that in civil suits, the general onus is on the Plaintiff to prove to the satisfaction of the Court the assertions made in the pleadings.
Where a Plaintiff fails to discharge the onus of proof upon him at the close of pleadings, a defendant is not obliged to adduce any evidence in rebuttal – WOLUCHEM V. GUDI (1981) 5 SC 291, OLOWU V. OLOWU (1985) 3 NWLR (PT 13) 372, ORLU V. GOGO-ABITE (2010) 8 NWLR (PT 1196) 307, AGALA V. OKUSIN (2010) 10 NWLR (PT 1202) 412, OBI V. ONYEMELUKWE (2011) 1 NWLR (PT 1228) 400, EYO V. ONUOHA (2011)11 NWLR (PT 1257) 1, AGBOOLA V. UNITED BANK FOR AFRICA PLC (2011) 11 NWLR (PT 1258) 375. In other words, the person who asserts has the burden of proving the assertion. The failure of the defendant to prove cannot alleviate the primary burden on the plaintiff to prove his claim – UMEOJIAKO V. EZENAMUO (1990) 1 NWLR (PT 126) 253, OLAGUNJU V. YAHAYA (2004) 11 NWLR (PT 883) 24, HARKA AIR SERVICES LTD V. KEAZOR (2006) 1 NWLR (PT 960) 160, OGUNYADE V. OSUNKEYE (2007) 15 NWLR (PT 1052) 218, DIM V. ENEMUO (2009) 10 NWLR (PT 1149) 353, IROAGBARA V. UFOMADU (2009) 11 NWLR (PT 1153) 587, OYENEYIN V. AKINKUGBE (2010) 4 NWLR (PT 1184) 265.
The only thin issue left to be determined in this appeal is whether Exhibit P8 is sufficient proof of indebtedness of the Respondents to the Appellant. The learned trial Judge said apart from tendering Exhibit P8, the Plaintiff failed to lead credible evidence in proof of Respondents indebtedness citing Section 51 of the Evidence Act 2011, and holding that the Appellant had to adduce further evidence beyond tendering Exhibit P8.
I am not in agreement with the learned trial Judge that the Plaintiff failed to lead credible evidence in proof of its claim against the Respondents, it is not in doubt that Exhibit P8 is a computer printout of statement of account admitted in evidence pursuant to Sections 84 (1) and (2) of the evidence Act 2011, and the challenge to the credibility of the said exhibit, that is to say Exhibit D1, which raised allegations of irregularities and wrong entries was discountenanced by the Court, the only evidence available for the Court to rely on therefore is Exhibit P8. I carefully read the pleadings of the parties reproduced earlier in this Judgment, the Respondents denied indebtedness to the Appellant, at paragraphs 10 and 11 of the statement on oath of DW1, he stated that Respondents had been making part payment, the Respondents could not have been indebted to the Appellant, the two paragraphs are again reproduced as follows;
10. That I know as of fact that the defendants had consistently and regularly servicing the two facilities which is evident on admission made by the Plaintiff in its statement of claim.
11. That the defendants could not have been in any way indebted to the Plaintiff on these accounts as several payments and cash lodgements were made in excess of the facilities which should place the two accounts in substantial credit.
The Respondents denied indebtedness, and stated clearly in paragraph 5 of the statement on oath that the Respondents do not owe the Appellant any amount at all, in paragraph 5, the witness said as follow:
5. That I know as a fact that the defendants are not indebted to the Plaintiff Allstates Trust Bank Plc. (In liquidation) herein after referred to as the ?Bank? to the alleged sum of N188,226,753.07 (One hundred and eighty-eight Million, Two Hundred and Twenty-Six Thousand, seven Hundred and Fifty-Three Naira, Seven Kobo or any other sum at all.
The above constitute part of the materials before the lower Court. It is strange that a party that denies indebtedness in paragraph 5 of the witness statement on oath would in the same statement in paragraphs 10 and 11 state that they have been servicing the facility by making part payments and cash lodgements, the question then is what are the cash lodgements and payments meant for? At the trial the Appellant clearly stated that the Respondents made part payments towards liquidating their indebtedness to the Bank. The statement of Account tendered and admitted as Exhibit P8 and the evidence of PW1 are in my view sufficient to constitute sufficient proof of indebtedness which the learned trial Judge ought to have relied on as proof of indebtedness of the Respondents to the Appellant.
I must point out here that the Respondents attempted to disprove Exhibit P8 by tendering in evidence Exhibit D1 which the lower Court discountenanced, having discountenanced Respondents rebuttal, the lower Court ought to have held that the Appellant established its claim before the lower Court. The Respondents ought to have disproved Exhibit P8 or canvassed strong argument in rebuttal there is nothing to discredit the said Exhibit P8, the lower Court ought to have relied on it. I also refer to the decision of this Court in EHINMOSA V. NNPC (2016) ALL FWLR (Pt. 837) 686 at 710-711, also relied on by the Appellant, where this Court held that;
‘…..The fact of Exhibit p5, being a computer print-out of the Appellant in the Respondents computer, containing all the loans and advances taken by the Appellant up to the period of his retirement having been pleaded, and clothed with evidence, becomes a relevant fact. This is more so where the evidence on the pleadings remained uncontroverted, and uncontradicted by the Respondents. It behoves on the Respondent in the circumstance to either disown the P5 issued by them or to put in evidence different print out from sources alleged to be authentic to rebut the contents of the documents. Having failed to do so, the lower Court ought to have given the stated document evidential value and ascribe value to them…’
Where it is apparent from the records that there are compelling reasons for the Appellate Court to interfere with the decision of the lower Court, the Court must intervene, it is generally not the practice of this Court to interfere with the decision of the trial Court or engage in re-evaluating the evidence in order to reach different conclusion but where it is obvious that the lower Court acted under misapprehension of the facts, this Court is obliged to intervene. See; UKACHUKWU & ORS V. IHEJIRIKA & ORS (2014) LPELR-24102 (CA) where my learned brother, OHO JCA, while discussing the guiding principles for review or interference with findings of facts by the appellate Court said as follows;
“It has been the law at all times, that it is not the function of an appellate Court to interfere with the findings of fact of the Court of trial except where there are cogent reasons for doing so.
In the case of JOSEPH OYEWOLE VS. KARIMU AKANDE & ANOR (2009) LPELR (SC) OGUNTADE, JSC had cause to make the following observations: “…in Chief Victor Woluchem vs. Chief Simon Gudi & Ors. (1981) 5 SC 178 at 197 – 198 (Reprint) this Court, per NNAMANI JSC said; the principles under which an appeal Court would interfere with the findings of a lower Court have been laid down by several authorities of this Court and in common law jurisdictions. It is now settled law that if there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of Court of appeal to substitute its own views for the views of the trial Court. See Folorunsho vs. Adeyemi (1975) NMLR 128 CAW: A. M. Akinloye vs. Bellow Eyiyola & Ors. (1968) NMLR 92 at 95: Balogun vs. Agboola (1974) 10 SC 111. That of course does not mean that an appellate Court is completely shut. Certainly not, for if it were so the appeal itself would be pointless. The interference must, however, be in accordance with the principles that have been laid down over the years. If the judgment of the trial Court can be demonstrated to be affected or full of material inconsistencies and inaccuracies or if the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved or has completely gone wrong, the Court of appeal will interfere. Also if the trial Court takes a decision which is clearly perverse it will be open to the Court of Appeal to set aside such a decision. See Lucy Onowan & Anor. vs. J. J. I. Iserhien (1976) NMLR 263 at 265: see also Nabham vs. Nabham (1967) NMLR 192. These principles are based on sound common sense…”
The law is therefore settled that where the trial Court fails to properly evaluate the evidence before it, the appellate Court is in as good position as the lower Court to re-evaluate the evidence and ensure that justice is done to the contending parties, this is in accord with the provisions of Section 15 of the Court of Appeal Act 2004. Therefore, having carefully perused the evidence generated at the trial and the submissions of Counsel, I am of the view that the learned trial Judge failed to properly evaluate the evidence before the lower Court.
Appellants appeal therefore succeeds, the judgment of the lower Court delivered by ANEKE J, on the 29th day of April 2016 in suit No. FHC/L/CS/422/2010, is hereby set aside, in its place therefore Judgment is entered in favor of the Appellant/Plaintiff. Appellants claim of the sum of N177, 626, 754.00 being the outstanding indebtedness of the Defendants to the Plaintiff as at 2006 on the financial facilities by All states Trust Bank Plc (In liquidation, is granted.
N500,000.00 Cost is awarded to the Appellant against the Respondents.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have been afforded the opportunity of reading in draft the judgment of my learned brother, TIJJANI ABUBAKAR, JCA and I am in agreement with the reasoning and conclusion therein, and for emphasis sake would only reiterate that the Court of Appeal has a duty to re- evaluate and re-hear the evidence that has been adduced by the trial Court.
This was the holding of this Court in TAJUDEEN ARO v LAGOS ISLAND LOCAL GOVERNMENT COUNCIL (2000) LPELR – 10748 (CA), where it was stated per ONNOGHEN, JCA that;
“Where a trial Court has failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse the Court of Appeal has duty by way of rehearing, to evaluate as if it were a trial Court, the evidence that has adduced – see Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410.”
Flowing from above, the appeal succeeds and the decision of the lower Court is set aside, I abide by all consequential orders given in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TIJJANI ABUBAKAR J.C.A. afforded me the opportunity of reading today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.
Appearances:
Anozie D. Benson with him, Martins EmonyonFor Appellant(s)
Collins Ogbonna For Respondent(s)
