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ODERAH INVESTMENT COMPANY LIMITED v. ECOBANK NIGERIA PLC (2019)

ODERAH INVESTMENT COMPANY LIMITED v. ECOBANK NIGERIA PLC

(2019)LCN/13421(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of June, 2019

CA/K/300/2016

 

JUSTICES

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

ODERAH INVESTMENT COMPANY LIMITED Appellant(s)

AND

ECOBANK NIGERIA PLC Respondent(s)

RATIO

THE FOUNDATION FOR THE USER OF THE OPINION OF AN EXPERT BY A FOUNDATION

The foundation for the user of the opinion of an expert by a Court of law is laid in Section 68 of the Evidence Act, 2011 which provides:
?(1) When the Court has to form an opinion upon a point of foreign law, customary law or custom or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identify of handwriting or finger impressions, are admissible.
2. Persons so specially skilled as mentioned in subsection (1) of this section are called experts. PER ABUNDAGA, J.C.A.

WHETHER OR NOT IT IS THE PRIMARY FUNCTION OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE THERETO

No doubt, the law remains settled that evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial which saw, heard and assessed the witnesses as they testified at the trial in the witness box. Where such Court of trial unquestionably evaluates the evidence before it and justifiably appraises the facts, it is not the business of an Appellate Court to substitute its own view for those of the trial Court. See Arowolo v. Ifabiyi (2002) 4 NWLR (Pt. 757) 356 @ 372. It is also the law that where there is complaint that there was no proper evaluation at the lower Court, the Appellate Court has the duty to assess, scan and review the decision of the lower Court to see whether there was proper evaluation or not. The only way that could be done is through the record presented before the Court. See Imo Rubber Estates Limited v. Pamol Nigeria Limited (2018) LPELR-44339 (CA). PER ABUNDAGA, J.C.A.

WHETHER OR NOT A CLAIMANT HAS A DUTY TO REPLY WHERE THE STATEMENT OF DEFENCE RAISES NEW ISSUES OF FACT

The law certainly is that where the statement of defence raises new issues of fact not arising from the statement of claim, the claimant has a duty to file a reply to avoid same being admitted facts by him. See Odu-Ababe v. Olugunebi (2015) LPELR-257466 (CA). PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Kano State High Court delivered by Hon. Justice A. T. Badamasi on 13th day of January, 2016 in Suit No. K/580/2013. At the High Court of Kano State (hereinafter to be referred to as ?the lower Court? the Appellant as Plaintiff claimed the following reliefs, vide a writ of summons issued against the Respondent as defendant:
1. A DECLARATION that the Bank is not entitled to charge excessive commission on turnover (totaling N418,5551.00) on the Plaintiff?s account.
2. AN ORDER reversing the said excessive commission and to credit the Plaintiff?s account with the sum of N418,551.00 (Four Hundred and Eighteen Thousand Five Hundred and Fifty One Naira);
3. A DECLARATION that the Bank is not entitled to charge excessive interest on the overdraft facility contrary to the Central Bank of Nigeria Monetary Policies and Guidelines;
?4. A DECLARATION that the Bank is not entitled to charge the sum of N2,561,773.83 (Two Million Five Hundred and Sixty One Thousand Seven Hundred and Seventy Three Naira Eighty Three Kobo) as

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interest on the overdraft facility granted to the Plaintiff same being contrary to the Central Bank of Nigeria Monetary Policy and Guidelines;
5. AN ORDER DIRECTING the Bank to credit the Plaintiff?s account the sum of N2,561,773.83 (Two Million Five Hundred and Sixty One Thousand Seven Hundred and Seventy Three Naira Eighty Three Kobo);
6. A DECLARATION that the Bank is not entitled to make charges not stipulated by the Central Bank of Nigeria in any of its regulatory directives or circulars and such charges so made are illegal, null and void;
7. A DECLARATION that the sum of N494,214.99 (Four Hundred and Ninety Four Thousand Two Hundred and Fourteen Naira Ninety Nine Kobo) charged on the plaintiff?s account by the Bank under various heads are unauthorized and unconventional and unknown to and contrary to the Central Bank of Nigeria Directives, Monetary guide, Circulars and Regulations and so illegal and void;
8. AN ORDER DIRECTING the Bank to reverse the said illegal charges and credit the plaintiff?s account with the total sum of N494,214.99 (Four Hundred and Ninety Four Thousand Two Hundred and Fourteen Naira

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Ninety Nine Kobo);
9. A DECLARATION that the Bank is entitled to pay 6% interest i.e N235,340.09 on the excesses and illegal charges made on the Plaintiff?s account as stipulated in the Central Bank of Nigeria Policy Circulars on claims (ii), (v) and (vii);
10. A DECLARATION that the Plaintiff is not indebted to the Bank in the sum of N8,390,368.03 (Eight Million Three Hundred and Ninety Thousand Three Hundred and Sixty Eight Naira Three Kobo) or any sum or at all;
11. 100% interest on the sum of N3,709,879,91 (Three Million Seven Hundred and Ninety Thousand Eight Hundred and Seventy Nine Naira Ninety One Kobo) for the Bank?s failure to make the refund within fourteen days as stipulated by the Central Bank of Nigeria;
12. COST
The claims of the appellant were denied by the Respondent, which further counter claimed after stating the grounds for its denial in a statement of defence and counter claim of 23 paragraphs in refutal of the appellant?s averments in its statement of claim of 32 paragraphs. The Respondent?s counter claim are as follows:
i. By way of counter-claim, the defendant repeats the

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averments in paragraph 1-19 of the Statement of defence.
ii. The defendant states further that the plaintiff is indebted to the defendant in the sum of N10,879,269.53 arising from the overdraft facility granted the plaintiff in favour of account No. 0018472751, accrued interests and bank charges as at 25th August, 2011. The Defendant pleads statement of account No. 0018472751 belonging to the plaintiff and shall place reliance on same at the trial of this suit.
iii. The defendant claims from the plaintiff the payment of the said sum of N10,879,269.53 together with compound interest at the rate of 19% per annum from 25th August, 2011 until the date of judgment and thereafter interest at 10% per annum until the judgment debt is fully paid.
iv. The defendant also claims the cost of this action including an additional sum of 10% of the claim as defendant?s Solicitor?s fees towards recovering this facility from the plaintiff.
?
The matter proceeded to trial in which the appellant called two witnesses who testified vide the adoption of their written depositions filed along with the appellant?s writ of summons. The appellant

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through one of the witness tendered documents that were admitted in evidence as Exhibits. The Respondent called one witness who also testified by adopting his witness deposition which was filed along with the Respondent?s statement of defence and counter claim. The Respondent tendered no document. All the witnesses were cross-examined on their evidence.

On the close of evidence, the appellant and Respondent addressed the Court through their counsel?s written addresses which were duly adopted.

In the judgment delivered on 13th January, 2013, the claims of the appellant were dismissed.

The dismissal did not go down well with the appellant which filed a notice of appeal containing five (5) grounds of appeal. The appellant subsequently sought and obtained leave of Court to amend its notice of appeal which was filed on 4th July, 2018 and deemed properly filed and served on 26th September, 2018. The record of appeal was compiled and transmitted on 16th June, 2016.

The grounds of appeal without their particulars are:
GROUND ONE
The Learned trial judge erred in law in failing to follow the decision of the superior Courts

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in the case of Oforlete v. State (2000) 12 NWLR (Pt. 681) 415; Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Agbonifo v. Aiwereoba (1988) NWLR (Pt. 70) 325 cited to him on the need to cross examine a Plaintiff?s witness upon a particular fact (a document) and the consequences of failure to do so.
GROUND TWO
The learned trial judge erred in law when he held that:
?None of the aforementioned qualification shows that the witness has basic qualification in banking. It has not been shown that the witness has sufficient practice or experience in the practice of banking to entitle him to be called a banker.?
GROUND THREE
The learned trial judge erred in law in dismissing the plaintiff?s claims.
GROUND FOUR
The learned trial judge erred in law in failing to assess the evidence of PW1 and Exhibit ?A? tendered by the witness along with the other documents tendered in Court particularly the banking instruments, guidelines and circulars issued by the Central Bank of Nigeria marked as Exhibit B-B3.
GROUND FIVE
The decision is against the weight of evidence.
In the appellants?

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amended brief of argument settled by Ishaku Y. Haliru, Esq, filed on 4th July, 2018 and deemed properly filed on 26th September, 2018 two issues were distilled for determination. The issues are:
(1) Whether PW1 is an expert on banking matters within the meaning of Section 68 of the Evidence Act and decisions of our Superior Courts. (Distilled from Grounds 1, 2 and 4)
(2) Whether the appellant has proved its case on the balance of probabilities. (Distilled from Grounds 3 and 5).

The issues were argued seriatim. Arguing issue one, learned counsel posited that PW1 is an expert and made reference to Section 68 of the Evidence which he submitted is fluid. Learned counsel submitted that educational qualification is not a necessity for achieving the status of an expert, and faulted the decision of the lower Court which so held. Counsel placed reliance on the case of Shell Petroleum Dev. Co. Nigeria Ltd. v. Chief Tigbara Adamkue & Ors (2003) 11 NWLR (Pt. 832) @ 599. It was further submitted by the appellant?s counsel that for a witness to qualify as an expert two hurdles, must be crossed, the first, being admissibility, and the second is

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evaluation, which counsel contended is the duty of the trial judge which saw and heard the witnesses. Counsel placed reliance on the case of Mrs. Lowis Chitutu Ukeje & Anor v. Mrs Gladys Ada Ukeje (2014) 4 SCNJ 1 @ 24. Counsel however noted the decision of this court and the Apex Court that the Court is not bound to accept the evidence of an expert, even one who has not disclosed incentive and motive other than helping the Court in quest for justice, relying on the case of Akeredolu v. Mimiko (2014) ALL FWLR (Pt. 728) 825 @ 851.

It is counsel?s submission that there must be good reasons why the Court will reject the evidence of an expert witness, and drew strength for this submission from the holding of the Court in the case of Attorney General of the Federation v. Pius Ogunro & Anor (2001) 10 NWLR (Pt. 720) 720, 175 @ 185. Counsel referred to the Oral testimony of PW1 and the documents tendered through him which were admitted in evidence as Exhibits. He particularly referred to exhibits B1-B3, and Exhibits C, C1?C10. He also referred to the evidence of DW1 to the effect that if there is a conflict between the provision of the

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guide on bank charge and offer letter, the provision of the guideline will prevail. Counsel therefore submitted that the lower Court came to wrong conclusion when it held that PW1 was not an expert on banking matters.

It was further submitted that the witness was not cross-examined on the report he produced and admitted in evidence as Exhibit A, and the effect is that the evidence was not challenged and ought to be accepted. Reliance is placed on the case of Alh. Musa Yau v. Maclean D. M Dikwa (2001) 8 NWLR (Pt. 714) 127 @ 154-155. He also referred to Oforlete v. State (2000) 12 NWLR (Pt. 681) 415, and Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583. Counsel pointed out that the trial judge as well as counsel for the Respondent merely relied on the decision of the High Court in another suit in another Court where the trial judge refused to accept PW1 as an expert, that is, Matraco Investment Co. Ltd v. Sterling Bank PLC- PP9 and 472-473 of the record of appeal. Counsel?s contention on this is that cases are not decided in vacuum, and relied on the case of Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39.

Counsel submitted that the witness married

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his findings contained in Exhibit A to the banking instruments, Exhibits B-B3 which the lower Court refused to consider in its judgment. He submitted that the report cannot be taken in isolation and relied on Attorney General of the Federation v. Pius Ogunro (supra) @ Page 185.

Relying on the evidence on the printed record counsel submitted that:
(a) That some reversals were in favour of the appellant (lines 1-2 on page 22 of the record of appeal)
(b) That the reversals are entitled to be refunded with interests (Line 24 on Page 21 of the record of appeal)
(c) That the reversal that were made was after receipt of PW1?s report (Exhibit ?A?). (Line 3 on page 22 of the record of appeal)
(d) That the report was based on extant banking Rules, Monetary Policy and Guidelines issued by the Central Bank of Nigeria (pages 126-128 of the record of appeal)
(e) Those extant Rules and Monetary Policy Guidelines here tendered and admitted in evidence by the Court as Exhibits (Line 19 page 19 of the record of appeal).

Counsel?s final submission is that if the learned trial judge had considered these facts he

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would have come to a different opinion on the status of PW1. We were thus urged to resolve issue one in favour of the appellant.

The submission of counsel on issue two is that it is intricately tied to issue one, and that the evidence of appellant?s witnesses is consistent with its pleadings. Counsel faulted the evaluation carried out by the trial Court judge, and submitted that had he done otherwise, he would have arrived at a different conclusion which would have resulted in judgment being entered for the appellant, and urged us to so hold.

The Respondent?s brief of argument was settled by Sir Steve Adehi, SAN. It was filed on 11th October, 2018. Therein, the learned Silk adopted the issues formulated by the appellant, and like the appellant?s counsel, he argued the issues seriatim.

On issue one he submitted that the question of who qualifies as an expert is a matter for the judge who heard the witnesses to decide. He then referred the Court to the following cases: Aregbesola v. Oyinlola (2011) ALL FWLR (Pt. 570) 1292 @ 1415; Attorney General of the Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 @ 181-182. He also

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referred us to S. 68 of the Evidence Act, 2011, and the Black?s Law Dictionary, 8th Edition, page 9. He pointed out that PW2 (1 believe is PW1 he meant) who testified as PW1 at the trial Court gave his credentials in paragraph 2 of his witness deposition on oath, and admitted under cross examination that he does not have a degree in Banking. It was further submitted for the appellant that the trial Judge reviewed the evidence of the witness before arriving at his holding that he is not an expert. He reiterated his earlier submission that it is in the place of the trial judge who saw and assessed the witness to draw the conclusion whether he is an expert or not. He cited more cases on this submission. The cases additionally cited are: All Nigeria Peoples Party v. Usman (2009) ALL FWLR (Pt. 463) 1292 @ 1342-1343; Azu v. State (1993) 7 SCNJ (Pt. 1) @ 157.

Counsel went further to submit that having reviewed the evidence and drawn a conclusion as to the status of the witness as not an expert, that finding cannot be substituted by that of the Appeal Court. He concluded on this issue by calling on this Court to resolve it in favour of the Respondent.<br< p=””

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Coming to issue two, the contention of counsel is that the appellant did not prove its case at the trial Court, citing Sections 132 and 136 of the Evidence Act on burden of proof.
He pointed out that the witness (PW1) did not explain the relevance of the documents to the evidence. That the documents were thus not tied to the appellant?s case as presented in the evidence of the witnesses.

Counsel?s next submission is that PW1 under cross-examination admitted being aware that his client applied for facility which was granted it through a letter of offer which terms he voluntarily accepted by signing same. That having accepted the facility which it utilized cannot now turn round to avoid liability on ground of contravention of CBN guidelines which he was aware of at the time they took the facility. On this, counsel placed reliance on the case of Chidoka v. FCF Co. Ltd. (2013) ALL FWLR (Pt. 659) 1024 and Buhari v. Obasanjo (2005) ALL FWLR (Pt. 258) 1604 @ 1681.
?
In regard to the evidence of PW2, counsel?s contention is that his witness deposition on oath is a reproduction of the report of PW1, which is not reliable. That the

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appellant did not venture any opinion of its own but only relied on the report of PW1, being a parson who has been adjudged by the Court of Appeal not to be an expert. In sum, counsel submitted that the appellant has not proved its case and must fail in its action.

On the submission on the documents tendered by the appellant, counsel placed reliance on the case of Audu v. INEC. No. 2 (2010) 13 NWLR (Pt. 1212) 456 @ 520, Nwole v. Iwuagwu (2006) ALL FWLR (Pt. 316) 325 @ 344, Olawepo v. Saraki (2009) ALL FWLR (Pt. 498) 256 @ 303; Biezan v. Union Homes (2011) 7 NWLR (Pt. 246) 246. We were urged to resolve this issue in favour of the Respondent.

The issues formulated by the appellant and adopted by the Respondent are apt for the holistic disposal of this appeal. I hereby adopt them.

RESOLUTION OF THE ISSUES
The foundation for the user of the opinion of an expert by a Court of law is laid in Section 68 of the Evidence Act, 2011 which provides:
?(1) When the Court has to form an opinion upon a point of foreign law, customary law or custom or of science or art, or as to identity of handwriting or finger impressions, the opinions upon

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that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identify of handwriting or finger impressions, are admissible.
2. Persons so specially skilled as mentioned in subsection (1) of this section are called experts.?
From the cases cited by the counsel, to the extent that whether a witness qualifies to be accorded the status of an expert depends on the Judge who has the opportunity of hearing and watching the witnesses testify, both counsel are on the same page. They are also on the same page to the extent that the status of a witness as an expert witness does not necessarily depend on his educational qualification.
The following cases cited by the two counsel say it all. It is also common ground between the two counsel that the opinion given by an expert is not binding on the Court. In the case of Shell Petroleum Dev. Co. (Nig.) Ltd. v. Chief Tigbara Adamkue & Ors. (supra) Akintan, JCA held:
An expert needs not be academically qualified in a particular field of study before he can claim to be an expert. All that he needs to do is to

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satisfy the Court that he has acquired sufficient expertise in the field in which he is called upon to give expert opinion. It follows therefore that the mere fact that a witness is an Estate Valuer does not per se prevent him from giving expert opinion on other fields of study.?
Also, in the case of Attorney General of the Federation v. Pius Ogunro & Anor (supra) the Court held:
the evidence of an expert is generally an aspect of the entire evidence to be evaluated by a Court. This means the report of the expert will not be taken in isolation. It?s credibility will be assessed along with other available evidence both oral and documents if any?the documents tendered in the case should be used as a hanger with which to assess oral testimony.?
In the case of All Nigeria Peoples Party v. Usman (supra) cited by the learned silk, the Court held:
An expert is person who in the opinion of the Court has got sufficient practice or experience in the particular field of knowledge as a professional or amateur. It follows therefore that it is not only an academic qualification or formal

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training that can make one an expert in a particular field. It is for the judge to decide whether or not a person is sufficiently skilled to give expert evidence.?
The case of Azu v. State (Supra) also cited by the learned Silk speaks the same law. Therein, the Court held:
?To qualify as an expert under the Act, the witness must be specifically skilled in the field in which he is giving evidence and whether or not a witness can be regarded as an expert is a question for the judge to decide and the decision must be based on legal evidence.?
In the instant case, the lower Court in arriving its conclusion to decline according to PW1 the status of an expert witness, after citing cases that set out criteria that a witness has to satisfy to be regarded as an expert witness, and the qualification of PW1 as stated by him (PW1), held thus:
?It has not been shown that the witness has sufficient practice or experience in the practice of Banking to entitle him to be called a Banker. Honorary degrees can be awarded to anybody that made contribution to a particular profession regardless of the form of contribution. The fact

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that the witness was awarded a fellowship or honorary membership be it Senior or Junior does not make him an expert in that field. In this view, I am fortified by the decision of the Court of Appeal in the case of Matraco Investment Nigeria Ltd v. Sterling Bank Plc, where this witness was declared not to qualify as an expert for lack of degree in banking. I will therefore follow suit in that regard.?
The holding of the lower Court runs parallel to the decisions of the Superior Court cited in this appeal by the two counsel on which they have a consensus. This view:- that the witness is referred as an expert witness because he lacks degree in Banking directly conflicts with the decision in Shell Petroleum Dev. Co. Nigeria Ltd. v. Chief Tigbara Adamkue & Ors. (Supra), and All Nigeria Peoples Party v. Usman (supra). What further flows from this decision is the lower Court Judge?s total surrender of his duty of evaluation of the evidence of the witness before arriving at his decision. This again conflicts with decisions on the cases earlier cited on which counsel have a consensus, which is that, whether a witness qualifies as an expert is a

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decision that can only be taken by the Judge before whom he testified based on legal evidence before him. To simply decline according the status of an expert witness on the basis of his not having a degree in banking without relating it to any evidence given by him on the credentials he lays claim to, or to the evidence he has given as an expert certainly amounts to reading the law in a converse direction. It is reading the law very wrongly, not as dictated in the case of Attorney General of the Federation v. Pius Ogunro & Anor (Supra) where the Court held:
?The evidence of an expert is generally an aspect of the entire evidence to be evaluated by a Court. This means the report of the expert will not be taken in isolation. Its credibility will be assessed along with other available evidence both oral and documents if any?the documents tendered in the case should be used as a hanger with which to assess oral testimony.?
It is my view that to really discover whether a witness is an expert as he puts out himself to be, the witness is first allowed to state and present his qualification to satisfy the Court prima facie, that he

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is an expert on the subject in which he is to give evidence. At this stage all the materials on which he lays claim to as being an expert must be placed before the Court. This is done by the party calling him putting in the witness box. Then comes the duty of the opposing counsel where appropriate to cross examine the expert effectively in order to raise doubt as to the witness? expertise. See All Nigeria Peoples Party v. Usman (2008) 12 NWLR (Pt. 1100) 1 @ 72-73.
The lower Court ought to have made its own evaluation on the status of the witness as an expert. That is exactly what the trial Judge did in the case of Matraco Investment Nigeria Ltd v. Sterling Bank Plc (supra) before she arrived at her finding that the witness (PW1) was not an expert.
No doubt, the law remains settled that evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial which saw, heard and assessed the witnesses as they testified at the trial in the witness box. Where such Court of trial unquestionably evaluates the evidence before it and justifiably appraises the facts, it is not the business of an

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Appellate Court to substitute its own view for those of the trial Court. See Arowolo v. Ifabiyi (2002) 4 NWLR (Pt. 757) 356 @ 372. It is also the law that where there is complaint that there was no proper evaluation at the lower Court, the Appellate Court has the duty to assess, scan and review the decision of the lower Court to see whether there was proper evaluation or not. The only way that could be done is through the record presented before the Court. See Imo Rubber Estates Limited v. Pamol Nigeria Limited (2018) LPELR-44339 (CA). It was submitted by the appellant?s counsel that the evidence from which to come to a decision whether PW1 was an expert or not was not properly evaluated. Duty beckons on us not to look the other way, but to do the needful by evaluating the evidence as stated in the case of Dada & Ors. v. Bankole & Ors (2008) LPELR-907 (SC) where the Court stated:
?The main function of an Appellate Court (including the Court of Appeal) is to re-evaluate the evidence at the trial Court. This, the Court does, by examining the whole record of appeal before it.? Per Tobi, JSC (PP 30-31, Paras G-A).
?While I do

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not subscribe to the view that PW1 has to have a degree in banking to qualify as an expert, it is the truth that a degree in banking exposes him to all the rudiments of banking operations. But where, as in this case, the witness does not have a degree in banking he has an arduous task ahead of him in convincing this Court that he is an expert. He must show by empirical evidence that he has in the course of his consultancy services on banking performed notable assignments, and proceeds to give the particulars of those assignments for verification. In the whole of the record before us, the only assignment which PW1 performed that has been challenged is the Case of Matraco Investment & Anor v. Sterling Bank Plc (Supra) in which the Court declared him unfit as an expert. One expects that against the backdrop of what took place in Matraco?s case PW1 would be better prepared to showcase himself in further assignments if he was not so prepared at the time he testified in Matraco?s case. But this time he appears to have come worse prepared or perhaps he had nothing better to show as an expert. Aside stating that he is an Executive Director (Operation)

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Sky Inspection Nigeria Limited, he did not state his duties as an Executive Director, and how many years he has been in practice. Or he thinks that just because he is an Executive Director (Operation) Sky Inspection Nigeria Limited, a management and banking consultant simpliciter qualifies his as an expert? No way!
It has been impressed upon this Court for the appellant that because he was not cross-examined on his report, his report and claim to being an expert should be taken as uncontested. Counsel cited the case of Alh. Musa Yau v. Maclean D. M. Dikwa (supra) in fortification of this position. In principle, that?s the law.
However, the journey to a witness being accorded the status of an expert begins with the witness convincing the Court through his qualification-educational and/or practical experience and skill that he is an expert. When the Court is satisfied that he is, then comes the next step in the journey-that of testing him on his evidence to see whether his opinion as given in the evidence could be given any probative value, the law being trite that the opinion of an expert is not binding on the Court.
PW1 in my estimation

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did not scale through the first step in the journey. He is far from proving himself through his qualification/or practical experience and skill that he is an expert in the field of banking. Therefore, in one sentence, I state that PW1 is not an expert in the field of banking! Therefore the issue of having not tested him on his evidence by cross-examination does not arise. I so hold.

I hereby resolve issue one against the appellant and in favour of the Respondent.

ISSUE TWO
Whether the appellant has proved its case on the balance of probabilities.

Learned counsel for the appellant submitted quite rightly in my view that issue two is intricately tied to the resolution of the first issue. He also submitted, again rightly that PW1 is the key witness before the lower Court.

However, contrarily to his submission that for good reasons argued under the first issue that we resolve issue two in the affirmative, flowing from my resolution of issue one against the Appellant, issue two is also hereby resolved against the appellant and in favour of the Respondent.
?
The whole of the appellant?s case is built on the report of the PW1

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as an expert. Having found that he is not an expert, the report lacks the substratum on which to stand. Nothing can be put on nothing and be expected to stand.

There is yet an issue which this Court cannot close its eyes to. It was raised in paragraphs 11 and 13 of the Respondent?s statement of defence and counter counter claim. Argument on that issue was also incorporated in issue two by the Respondent?s counsel.
?
For ease of reference I state paragraphs 11 and 13 supra:
?11. In further answer to paragraph 15 of the statement of claim, the defendant avers that save for the offer letter dated 17th March, 2008 and listed as 15(f) in the statement of claim, all other documents listed as 15(a)-(h) of the Statement of claim are either irrelevant or inapplicable to the transactions between the plaintiff and the defendant.?
?13. In further answer to paragraphs 17, 18, 19, 20, 21, 22, 23 and 24 of the statement of claim, the defendant repeats paragraph 11 of the foregoing and the defendant avers further that the interests charged on the overdraft facility granted to the plaintiff were based on the terms agreed upon

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by the plaintiff as per the offer letter of 17th March, 2008.?

These averments are new to the plaintiff?s statement of claim and elicited a reply to the statement of defence and defence to the counter- claim from the plaintiff but none came. The law certainly is that where the statement of defence raises new issues of fact not arising from the statement of claim, the claimant has a duty to file a reply to avoid same being admitted facts by him. See Odu-Ababe v. Olugunebi (2015) LPELR-257466 (CA).

PW1 admitted under cross-examination that his client, the appellant applied for and accepted facility from the Respondent on terms contained in the offer letter and utilized the facility. PW2, the MD of the appellant also admitted that he voluntarily accepted the terms of the offer by signing the acceptance of the offer. That he utilized the facility. PW2 also admitted that at the time he took the facility, the CBN guidelines were in place. On this evidence the learned Silk argued that having utilized the benefit to its own advantage the appellant now turns round to claim that the charges are contrary to CBN guidelines when now asked to repay back

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the charges on the facility. This, counsel submitted that the law frowns at and will not allow. He placed reliance on Chidoka v. FCF Co. Ltd supra. The learned Silk cannot be more right. Such an attitude smacks of moral turpitude, and must be roundly condemned, as the Courts have indeed done in so many cases.
In Chidoka v. FCF Co. Ltd (Supra), the Court held:
A man who with his eyes open and without the other party committing fraud against him enters into an agreement with another, should be prepared to abide by the terms of the agreement, illegal or otherwise unenforceable in law. I cannot allow the Appellants after collecting money from the Respondent to do business to now turn round to plead the money lenders law in order to escape the refund of the said money.?
See further on this point the following cases:- Pareto Funds & Securities Ltd v. International Trust Bank Plc (2011) LPELR-4830 (CA), Regd Trustees of Association of Tippers & Quarry Owners of Nigeria v. Chief Ramon Yusuf (2011) LPELR-5024 (CA), Okechukwu v. Onuorah (2000) 12 SC (Pt. 11) 104 @ 109, (2000) LPELR-2431 (SC).

?There is an aspect of

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the appellant?s case that deserves to be considered. It is the evidence of DW1 under cross examination. This can be located at pages 21-22 of the record of appeal. DW1 stated thus under cross examination:
?If there is a conflict between the provision of the guide on bank charges and offer letter, the provision of the guideline will prevail. It is correct to say that if there is a breach of the guidelines the position of the Account will be reversed. I am conversant with the provision of the guide. Excess charge of interest attracts payment of interest to the customer. In paragraph 7 the interest on N199 has not yet been paid. So also the interest on the sum of N127,212.85 on the under charge, the interest is yet to be paid. Our findings was made after we received Exhibit A. It is correct to say that some aspects of Exhibit A are correct. It is the bank guide that a defaulting customer will be charged 12% per annum. If the provision is not in the guidelines the customer will be entitled to be reversed.?
?
This piece of evidence elicited under cross-examination appears to support the appellant?s case. However, the claims of the

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appellant are principally declaratory. The others which are not depend on the success of the declaratory reliefs. The law is settled that where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted even on admission. The claimant is also not entitled to rely on the weakness of the defence, if any. See Nduul v. Wayo & Ors. (2018) LPELR-45151 (SC). Therefore, on this authority the appellants cannot claim proof of its claim based on the evidence of DW1, when it has woefully failed to prove its case on its own strength, I so hold. This in my view is the last straw that broke the camel?s back.

The appeal, I must hold is totally devoid of merit and deserves a resounding dismissal, and is so dismissed, in consequence of which I affirm the judgment of the lower Court.

Costs is assessed at N50,000.00 in favour of the Respondent.

OBIETONBARA O. DANIEL?KALIO, J.C.A.: I have read in draft form, the judgment of my learned brother JAMES GAMBO ABUNDAGA, JCA. I agree with my lord?s reasoning and conclusion. The appeal

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is dismissed. I abide by my Lord?s order as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, James Gambo Abundaga, JCA, where the facts in issue have been set out.
?
I agree with my Lord?s reasoning and conclusions and also dismiss this appeal as lacking in merit, with the costs as awarded by my learned brother.

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Appearances:

Ishaku Y. Haliru, Esq.For Appellant(s)

Sir Steve Adehi, SANFor Respondent(s)

 

Appearances

Ishaku Y. Haliru, Esq.For Appellant

 

AND

Sir Steve Adehi, SANFor Respondent