OILFIELD TRANSNATIONAL INVESTMENT LTD v. FBN (2020)

OILFIELD TRANSNATIONAL INVESTMENT LTD v. FBN

(2020)LCN/15306(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, June 09, 2020

CA/MK/190/2016

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

OILFIELD TRANSNATIONAL INVESTMENT LTD APPELANT(S)

And

FIRST BANK OF NIGERIA PLC RESPONDENT(S)

RATIO

WHETHER OR NOT A STATEMENT ON OATH NOT ADOPTED BY THE WITNESS CAN BE USED AS EVIDENCE

This is because a statement on oath that has not been adopted by the witness cannot be used as evidence; Nwalutu v. NBA & Anor (2019) LPELR-46916(SC); Obeya v. Okpoga Microfinance Bank Ltd (2019) LPELR-47615(CA); Goar v. Dasun & Ors (2009) LPELR-4205(CA). A fortiori, any documents pleaded and frontloaded but which have not been given life by a witness that fails to adopt his statement would have no evidential value. Pleadings are not evidence, Rather, it is evidence, both oral and documentary that gives life to the pleadings; FCDA v. Naibi (1990) LPELR-1262(SC). PER OTISI, J.C.A.

WHETHER OR NOT ORAL EVIDENCE CAN BE ALLOWED TO ADD OR SUBTRACT FROM OR ALTER THE CONTENTS OF A WRITTEN DOCUMENT

It is trite law that oral evidence cannot be allowed to add to or subtract from or alter or contradict the contents of a written document as the document speaks for itself. Therefore, parties cannot give evidence contrary to its contents; Ashaka Cem Plc v. Asharatul Mubashshurun Investment Ltd (2019) LPELR-46541(SC); Ugwuegede v. Asadu & Ors (2018) LPELR-43717(SC). See also Section 128 of the Evidence Act, 2011. PER OTISI, J.C.A.

WHETHER OR NOT EVIDENCE ON FACTS NOT PLEADED GOES TO NO ISSUE

It is trite law that evidence on facts not pleaded go to no issue Ohiaeri & Anor v. Akabeze & Ors (1992) LPELR-2360(SC); Odom & Ors v. PDP & Ors (2015) LPELR-24351(SC). PER OTISI, J.C.A.

DEFINITION OF A POSTDATED CHEQUE

WHETHER OR NOT EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO THE EVIDENCE OF WITNESSES IS THE DUTY OF THE TRIAL COURT

Evaluation of evidence and the ascription of probative value to the evidence of Witnesses in any case lies within the province of the learned trial Judge. See Barau vs. Custom and Excise (1982) 2 NCR 1 per Fatayi-Williams, C.J.N., at pages 21-22 Kimdey & Ors. vs. Military Governor of Gongola State & Ors. (1988) 19 NSCC (Pt.1) 827 per Karibi-Whyte, JSC at page 838 lines 25-50; Fashanu vs. Adekoya (1974) 1 All NLR 32 per Coker, JSC at page 37 and Lion Buildings Ltd. vs. Shadipe (1976) 2 FNLR 282 per 289 per Udoma, JSC at page 289.
It also the duty of learned trial Judge or Court to come to the decision who is right or wrong; he must evaluate the evidence, oral or documentary by putting same on an imaginary scale as adduced by the parties. See Mogaji vs. Odofin (1978) 4 SC 91 at 93-94 and Olubode vs. Salami (1985) 2 NWLR (Pt.7) 282 at 294-298. PER AGUBE, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the judgment of the High Court of Benue State, sitting at Makurdi, Coram Ikpambese, J., (the Lower Court) in Suit No MHC/116/2011, delivered on 16/10/2012, wherein the claims of the Appellant as plaintiff were dismissed.

The case of the Appellant before the Lower Court was that on 1/9/2010 it lodged a Zenith Bank Plc cheque of N6,212,350.00 into its account held with the Respondent. After three working days clearing period, the Appellant’s account was credited with the said sum and it began to make withdrawals from the account. However, on 31/12/2010, without any instruction from the Appellant, the Respondent debited the Appellant’s account to the tune of N6,212,350.00. The Appellant through a letter from its solicitor, sought to recover the money. But the Respondent refused to credit its account with the amount debited hence its institution of the suit before the Lower Court. The defence of the Respondent was that the cheque lodged by the Appellant was dishonoured. The Appellant was notified and it promised to pay back. The Respondent thereafter debited the Appellant’s account. At the conclusion of hearing, the lower Court dismissed the claims of the Appellant.

Aggrieved by the decision of the Lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 15/1/2013. An Amended Notice of Appeal, which was filed on 1/3/2018 on eleven grounds of appeal, was deemed duly filed and served on 19/9/2018. The Respondent also filed a Notice of Cross Appeal, with one ground of appeal, on 10/12/2018 but deemed properly filed and served on 15/5/2019.

The parties filed Briefs of Argument. For the Appellant, the following Briefs were filed: The Appellant’s Brief, filed on 27/11/2018 but deemed on 15/5/2019, and, Appellant’s Reply Brief and Response to the Cross Appeal, filed on 3/3/2020 but deemed properly filed and served on 17/3/2020. For the Respondent, the Amended Respondent’s Brief was filed on 10/2/2020 but deemed on 17/3/2020, and, the Respondent/Cross Appellant’s Reply to Appellant’s Response to Cross-Appeal filed on 13/3/2020. These Briefs were respectively adopted at the hearing of the appeal on 17/3/2020 by S.O. Okpale, Esq. with O.M. Iyokpo, Esq., A.M. Owunna, Esq., J.U. Eze-Okafor, Esq., and D.O. Peace-Omenka, Esq., for the Appellant/Cross Respondent; and, Mrs. M.E. Fayomi for the Respondent/Cross Appellant.
Out of eleven grounds of appeal, Mr. Okpale distilled five Issues:
1. Whether the Learned Trial Judge was right to admit Exhibit D1 in evidence and/or rely on same in the cause of the judgment and to thereby dismiss the case of the Appellant predicated on same (Grounds 2, 3, 4 and 5).
2. Whether the Learned Trial Judge was right to have suo motu raise the issue of the date on Exhibit D1 and thereby held that the cheque lodged in the Appellant’s account was dated 1st day of September, 2011, when the date on the cheque was never made an issue either in the pleadings and/or at the trial (Ground 6) or alternatively. In the light of the pleadings and the evidence adduced at the trial was the Learned Trial Judge right to have held that the uncleared cheque of Zenith Bank (Exhibit D1) lodged in the plaintiffs (Appellant) account on the 1st day of September, 2010 is dated the 01-09-2019 afortiori a post dated cheque. (Ground 6)
3. In the light of the pleadings and the evidence adduced at the trial relative thereto was the Learned Trial Judge right to have held that paragraph 6t(ii) of the Statement of Defence having not been traversed is deemed admitted (Ground 7)
4. Whether in the light of the pleadings, the unchallenged and uncontradicted evidence adduced by the Appellant in support of her case, the Learned Trial Judge was right to hold that the withdrawals by the Appellant from her account becomes an overdraft facility recoverable as a debt and thereby relied on the case of BANK OF THE NORTH VS YAU (2001) FWLR (pt 54) 280 at 286 to justify the Respondents debiting the account of the Appellant thereby erroneously dismissing the case of the Appellant rather than entering judgment for her per her claims (Grounds 1, 8, 9 and 10).
5. Was the Learned Trial Judge right in the light of the pleadings and evidence at the trial when he held that the uncleared post dated cheque was returned to the Appellant and consequently she was aware that the cheque was returned unpaid (Ground 11).

For the Respondent, the following Issues were distilled for determination of the appeal and cross appeal:
(1) Whether the learned trial judge was right to have discountenanced the statement on oath of DW1 for failure to have signed same before the Commissioner for Oaths. (Distilled from the sole ground of the respondent’s notice of Cross-Appeal).
(2) Whether the learned trial judge was right to rely on Exhibit D1 in arriving at its judgment. (Grounds 2, 3, 4 and 5).
(3) Whether the pronouncement of the learned trial judge that Exhibit D1 lodged in plaintiff’s account on 1st September, 2010 dated 01-09-2011 is a post dated cheque occasioned a miscarriage of justice (Ground 6).
(4) Whether from the pleadings and totality of evidence adduced before the lower Court, the learned trial judge was not right to have dismissed the suit of the appellant. (Grounds 7, 8, 9, 10 and 11).

Issues revolving around the competence of the evidence of DW1 and the Lower Court’s findings on Exhibit D1 are pivotal to a judicious and comprehensive resolution of this appeal. In this light, I consider it expedient to succinctly reframe the Issues for determination of this appeal in order to accommodate all issues in controversy in this manner:
1. Whether the learned trial Judge was right to have discountenanced the statement on oath of DW1 on the ground that she disowned same. (Distilled from the sole ground of the respondent’s notice of Cross-Appeal).
2. Whether the learned trial Judge was right to admit Exhibit D1 in evidence and/or rely on same in the cause of the judgment and to thereby dismiss the case of the Appellant predicated on same. (Grounds 2, 3, 4, 5 and 6).
3. Whether from the pleadings and totality of evidence adduced before the Lower Court, the learned trial Judge was right to have dismissed the suit of the Appellant. (Grounds 1, 7, 8, 9, 10 and 11).

I shall now consider and resolve these Issues. Being intertwined, I shall resolve Issues 1 and 2 together.

Issues 1 and 2
At the hearing of the suit leading to this appeal, PW1, who testified for the Appellant, said that on 1/9/2010, the Appellant lodged a cheque for the sum of N6, 212, 350.00 into its account held with the Respondent. DW1 tendered a certified true copy of the cheque lodged with them, which was a Zenith Bank Cheque. The cheque was admitted in evidence as having the date 1/9/2010 and was marked Exhibit D1. Mr. Okpale submitted that Exhibit D1 was a photocopy of the cheque and a bankers’ document which ought to comply with the provisions of Section 91(e) of the Evidence Act, 2011 to be admissible, relying on Oghoyone v Oghoyone (2010) ALL FWLR (PT. 543) 1844 at 1860-1862. Having failed to so comply, Exhibit D1 ought not to have been admitted in evidence and should be expunged.

While tendering the cheque in evidence, DW1 identified the said cheque as being dated on 1/9/2010. Mr. Okpale further argued that the parties did not join issues on the date on Exhibit D1, specifically as to whether or not the said cheque was postdated. He posited that if the photocopy of the cheque admitted by the Court as Exhibit D1, turned out to be dated “01-09-2011”, then it was not the same cheque tendered and admitted as Exhibit D1. Otherwise, it was not the cheque pleaded by the Respondent and identified by DW1. The decisions in Iliyasu v Ahmadu (2011) ALL FWLR (Pt 571) 1588 at 1603 and Ali v Ugwu (2012) ALL FWLR (Pt 619) 1078 at 1109 were cited and relied on.

The Respondent had pleaded that consequent upon the Appellant failed promises to collect the dishonoured cheque, it sent its dispatcher to deliver the returned cheque to the Appellant at Makurdi through his approved representative and at his direction. The Appellant denied the cheque was returned to it. It was submitted, assuming without conceding, that the alleged uncleared cheque was returned to the approved representative of the Appellant by the Respondent’s dispatcher and there was an endorsement acknowledging receipt of the returned cheque on the photocopy sought to be tendered, the same can only be tendered via the Respondent’s said dispatcher who could be cross examined on the delivery and on the photocopy.

In the alternative, Mr. Okpale submitted, assuming without conceding that Exhibit D1 was properly admitted in evidence, the trial Court ought not to have attached any weight on it for the reasons earlier given. The decisions in Egesie v Elele (2000) FWLR (Pt 10) 1677 at 1687; Nwabuoku v Onwordi (2006) 26 NSCQR (VolII) 1161 at 1180-1181 were cited and relied on.

DW1 who was the Respondent’s only witness, tendered Exhibit D1 alongside other exhibits tendered by the Respondent. Based on the contentions of the Appellant that the DW1 did not swear to the statement on oath, she adopted at the trial, before the Commissioner for Oaths and that the signature on the statement on oath DW1 adopted as hers at the trial was not hers, the learned trial Judge in the judgment discountenanced the evidence of the DW1, relying on Chidubem v Ekenna (2009) ALL FWLR (Pt 455) 1652 at 1708 – 1722. It was submitted that by discountenancing the evidence of DW1, the Respondent had no evidence whatsoever in support of her statement of defence. Pleadings without evidence in support must be deemed abandoned, relying on Ajanaku v Osuma (2014) ALL FWLR (Pt 927) 695 at 735. In the absence of evidence at the trial tying the documents to the aspect of the tendering party’s case that it would want the documents to establish, the Court cannot, while considering the evidence for judgment countenance such documents to discover the case of the party. Counsel also relied on the decisions in Maersk (Nig.) Ltd v ZATS International Ltd (2013) ALL FWLR (Pt 685) 336 at 403; C.P.C. v INEC (2013) ALL FWLR (Pt 665) 364 at 389. Having discountenanced the evidence of DW1, there was no oral evidence to support Exhibit D1. The trial Court was reliance on Exhibit D1, which dumped on the Court without evidence.

Exhibit D1 was admitted as being dated 1/9/2010. The Respondent did not plead the reason for the dishonour of the cheque, Exhibit D1. It was contended that the learned trial Judge had suo motu, without any address from the parties, made the finding that the said cheque was postdated to 1/9/2011 and consequently, in dismissing the case of the Appellant, held that “the cheque cannot be cashed or exchanged for money until that date …. In other words a post dated cheque does not have value attached until the date on it matures”. It was submitted that dispute between parties before a Court is determined by the Court upon the issues joined by the parties on the pleadings and evidence adduced thereon at the trial. Documents tendered by the parties at the trial are only used to determine the dispute on the basis upon which such a document is tendered by the party that tendered same and upon which evidence are adduced in support. Where issues are not joined upon a particular point, such point does not arise for the determination of the Court. Similarly, that the Court cannot use a document tendered for a purpose for which the parties did not tender it for and/or use a document upon which there is no evidence in support of, to determine the dispute between the parties. Reliance was placed on authorities including:Ishola v UBN Ltd (2005) ALL FWLR (Pt 256) 1202 at 1213; I.N.E.C. v Atuma (2013) ALL FWLR (Pt 697) 619 at 657. In the instant case, where no issue was pleaded or addressed upon by the parties as regards the date on the cheque lodged in the account of the Appellant or as to the date on Exhibit D1, which was tendered and admitted as a document dated 1/9/2010, it was wrong for the trial Court to raise those issues and to proceed to so determine and thereby dismiss the case of the Appellant. The Court was urged to set aside the decision of the lower Court on this account.

The Trial Court made reference to the Respondent’s pleading in paragraph 6(t)(i) of the Statement of Defence, holding that the failure of the appellant to file a reply thereto signified an admission. On this issue, Mr. Okpale relied on the provisions of Order 15 Rule 1 of the Benue State High Court (Civil Procedure) Rules, 2017 to submit that a reply to a statement of defence only becomes necessary when new issues or facts are pleaded and/or raised therein and/or when a counter claim is raised therein by the defendant. Otherwise, when the statement only answers to the averments in the statement of claim without more, there is no need to file a reply thereto. Issues are deemed joined on the statement of defence been filed. The Court was urged to resolve the issues in favour of the Appellant.

For the Respondent, it was argued that at no point whether in her examination in chief or cross-examination before the Lower Court did the DW1 disown her written deposition. Mrs. Fayomi for the Respondent described the holding of the trial Court in this regard as being perverse, citing Buhari v. INEC (2009) 7 WRN 1 at 174; Adimora v. Ajufo (1988) 3 NWLR (Pt 80) at 45. It was argued that for the Lower Court to be able to rightly hold that the DW1 disowned her sworn deposition, DW1 must have unequivocally denied or disowned same, leaving no doubt about her denial of same. Black’s Law Dictionary, Eight Edition defines denial as “a refusal or rejection”. It was submitted there was no such refusal or rejection. The Court was urged to hold that the trial Court discountenancing the deposition of DW1 on the ground that she disowned same was perverse, based on assumptions and not backed by evidence, and thereby occasioned a miscarriage of justice. An appellate Court may interfere with finding of fact by a trial Court that is wrong or perverse, citing CBN v Hydro Air Pty Ltd LER (2014) CA/L/235/2012. The Court was urged to reverse this finding.

It was submitted that Exhibit D1 as pleaded and frontloaded was a Zenith Bank Plc cheque dated 1/9/2011. DW1 identified “Zenith Bank cheque and other documents” without making specific mention of the date on the cheque. It was argued that an incorrect mentioning of the date by Counsel or by typographical error cannot replace what was pleaded and frontloaded.

It was further submitted that Exhibit D1 satisfied the provisions of the Evidence Act and was thereby was rendered admissible. Exhibit D1 was a certified true copy of the original, which the Appellant had been given notice to produce. The Appellant having failed to produce the said original, which was primary evidence, the Respondent was entitled to tender the copy of same in its possession, which was secondary evidence. Reliance was placed on the provisions of Sections 149 (d), 98, 221 and 222 of the Evidence Act, andLawal v. Magaji & Ors (2009) LPELR – 4427. The Court was urged to hold that Exhibit D1 was rightly admitted. DW1, who was an official of the Respondent, identified the exhibit as the cheque presented by the Appellant and which was returned uncleared and returned to the Appellant.

It was further argued that having pleaded and frontloaded the said cheque, the Appellant had opportunity to file a reply denying the existence of the cheque pleaded and frontloaded but it did not. This was the same cheque tendered in evidence and admitted. The Appellant’s Counsel who did not contend at the Lower Court that the document was not pleaded but that it did not comply with Section 90 (1) (e) of the Evidence Act, was estopped from arguing at this stage that the document was not pleaded, relying onAdeniyi v. Adeniyi (1992) 2 SC 57; Chief Okafor v. Abumofuani (2016) NGSC 28, Blessing v. FRN (2015) LPELR 24689 SC. The Court was urged to hold that Exhibit D1, which was in custody of the Respondent, was properly tendered through its officer and agent, DW1, who had deposed to the fact that she was conversant with all the facts of the case on same.

On the Appellant’s alternative argument, it was submitted that the learned trial Judge was right to have attached weight to Exhibit D1. Mrs. Fayomi adopted her earlier arguments reiterating that Exhibit D1 was pleaded and frontloaded by the Respondent in this case. The trial Court was bound to consider every piece of evidence before it, relying on Asheik v. Borno State Government (2012) 9 NWLR (Pt 1304) 1 at 25.

It was further argued, assuming without conceding that the learned trial Court was right in discountenancing the written deposition of the DW1, that the documents tendered by the witness having been admitted were sufficient to sustain the defence of the Respondents. Pleaded, frontloaded and admitted documentary evidence speaks for itself and the trial Court was right to consider it and make its findings on same. The argument that the learned trial Judge raised the issue of date suo motu without any address from either Counsel was misconceived. Address of Counsel cannot replace evidence before the Court, citing Agbamu v. Ami (2004) 5 NWLR Pt. 867 page 571. The Court was urged to hold that the trial Court had properly evaluated the evidence before it in arriving at its decision.

Further submissions as made for the parties in the Appellant’s Reply Brief and Response to the Cross Appeal as well as in the Respondent/Cross Appellant’s Reply to Appellant’s Response to Cross-Appeal, have also been considered.

Resolution
I consider it germane to resolve, as a primary issue, whether the Respondent’s pleadings received life by evidence or whether the Respondents’ pleadings ought to be deemed to have been abandoned. This is because a statement on oath that has not been adopted by the witness cannot be used as evidence; Nwalutu v. NBA & Anor (2019) LPELR-46916(SC); Obeya v. Okpoga Microfinance Bank Ltd (2019) LPELR-47615(CA); Goar v. Dasun & Ors (2009) LPELR-4205(CA). A fortiori, any documents pleaded and frontloaded but which have not been given life by a witness that fails to adopt his statement would have no evidential value. Pleadings are not evidence, Rather, it is evidence, both oral and documentary that gives life to the pleadings; FCDA v. Naibi (1990) LPELR-1262(SC).
DW1 was the sole witness for the Respondent. Her written statement on oath, found on pages 22 – 23 of the Record of Appeal, states that it was deposed to on 15/6/2011 at the Registry of the High Court of Justice, Makurdi. At the hearing, she said, page 91 of the Record of Appeal:
“I made a written deposition before this Court on 15 June, 2011. I adopt the said deposition under oath as my evidence in this suit.”
Under cross-examination, DW1 said, page 94 of the Record of Appeal:
“On 15/6/2011, I was at my duty post at Gboko. I did not come to the High Court premises personally…You are correct to say that I did not appear before the commissioner of oath on the 15/6/2011.”
During re-examination by Respondent’s Counsel, DW1 further stated, page 95 of the Record of Appeal:
“I did adopt my statement on oath and is(sic) mine and not doctored.”
The learned trial Judge then found and held:
“It is uncontested fact that the DW1 who was the only witness on the side of the defendant disowned the deposition which she earlier on adopted. In the circumstance, it is immaterial even if the written statement on oath of the DW1 is made before the person duly authorized to administer oaths. In other words, the DW1 by her answers during cross-examination rebutted the presumption of regularity of her sworn statement/written statement on oaths.”
The trial Court relied on Maduakolam Samuel Chidubem v Obioma Ekenna & 12 Ors (2009) ALL FWLR (Pt 455) 1692 at 1706, also reported in (2008) LPELR-3913(CA).
Now, to disown a deed is weighty. The Merriam – Webster Dictionary defines the word ‘disown’ as to refuse to acknowledge as one’s own; to repudiate any connection or identification with; to deny the validity or authority of an act. The word ‘repudiate’ is explained in Black’s Law Dictionary, Ninth Edition, page 1418 to mean: To reject or renounce. Thus, by disowning an act, a person effectively and unambiguously says ‘I did not do it’. But, with respect to the learned trial Judge, the evidence of DW1 was contrary to this finding. DW1 did not disown making the written statement. Neither did she disown her signature thereon. Rather, from the evidence of DW1, she did acknowledge and adopt the deposition as her statement. Therefore, it was not in issue that the statement was made by her. The question which, to my mind, was left to speculation was where the statement was sworn to. This is because, the signature of the Commissioner for Oaths, High Court Makurdi was not challenged at all. Now, a written deposition is the testimony to be relied upon by the deponent in Court, and these depositions must comply with the pleadings. A written deposition is usually given in a Court of law under oath or affirmation, and, under penalty of perjury. Black’s Law Dictionary, Ninth Edition defines a deposition as a witness’s out of Court statement that is reduced into writing for later use in Court, see page 505 thereof. The learned Author, ‘Lai Oshitokunbo Oshisanya in An Almanac of Contemporary Judicial Restatements, page 686, stated that a:
“deposition is testimony reduced into writing to be used at trial to establish a fact; Grace Square Realty Corp. v Choice Realty Corp. 305 NY 271.”
The relevant provisions of law governing the administration of the oath to validate the deposition are found mainly in the Oaths Act, 1990 and the Evidence Act, 2011. By virtue of Section 10 of the Oaths Act, persons empowered to administer oath include a notary public or commissioner of oaths. The correct procedure was for the oath to have been administered by the Commissioner for Oaths and the depositions signed in his presence. In Chidubem v Ekenna (supra), the evidence of the witnesses revealed that none of them signed their depositions before the person authorized to administer oaths, as required by law. This Court, per Kekere-Ekun, J.C.A. (as he then was), held that the witnesses, by their own evidence, rebutted the presumption in favour of their written depositions and held that their said written depositions were rightly discountenanced by the lower Tribunal. I shall return to this case.
In Udeagha v Omegara (2010) LPELR-3856(CA), this Court, per Ogunwumiju JCA, held that the statements of witnesses which adopted during oral evidence are different from mere affidavit evidence which stands on its own and which are not subjected to cross examination; and that the subsequent adoption of written depositions after a witness has been sworn in open Court to give oral evidence regularizes the depositions. In the latter case of Erokwu v Erokwu (2016) LPELR- 41515(CA), the Court, per Ogunwumiji, JCA, relied on the decision of the Supreme Court in Buhari v INEC (2008) LPELR-814(SC) to reverse its earlier position in Udeagha v Omegara (Supra) holding, pages 17 – 19 of the E-Report:
“I had hitherto been of the view that even where the witness statement of the Respondent at the trial Court was not sworn to before a person duly authorized to take oaths in contravention of Section 112 of the Evidence Act 2011, the subsequent adoption of the written deposition after he had been sworn in open Court to give oral evidence regularizes the deposition. I was of the view that the witnesses(sic) statements which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without oral backup and which are not subjected to cross examination. That is such affidavit evidence which do not meet the requirements of Sections(sic) 112 Evidence Act that are intrinsically inadmissible.
That where a witness is in Court to say he/she is adopting an irregular witness deposition, the implication is that the witness is re-asserting on oath what is contained in the otherwise defective deposition and such adoption on oath makes all the evidence in the written deposition admissible.
However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in Buhari v. INEC (2008)12 SCNJ 1 at 91. In that case, the Supreme Court unequivocally agreed with the Court of Appeal’s decision to strike out the depositions of the Appellants(sic) witnesses sworn before a Notary Public who was also counsel in the chambers of the senior counsel to the Appellant which was in violation of Section 19 of the Notary Public Act and 83 of the Evidence Act (now S. 112) …
The concept of oath taking involves: –
i. The deponent making a statement in writing,
ii. The document is taken to a Commissioner for Oaths or any person duly authorized to take the oath,
iii. The Commissioner for Oaths requires the deponent to swear on a holy book particular to the deponents(sic) faith or a mere declaration for a deponent whose faith forbids him to swear,
iv. The Commissioner for Oaths then asks the deponent to verify what has been stated
v. The deponent afterwards signs in the presence of the Commissioner for Oaths who witnesses that the affidavit was sworn to in his presence. This explains the phrase Before me usually signed by the Commissioner for Oaths.
Any arrangement other than the above amounts to a nullity.”
My Lord went further and concluded thus, pages 20-22 of the E-Report:
“In this case, the Respondent upon cross examination stated when asked where he signed his statement on oath that: I guess in my counsel’s chambers. This to my mind presupposes that a document was not signed before a commissioner for oaths…THIS IS NOT A DEFECT IN FORM ENVISAGED BY Section 113 of the Evidence Act 2011. It is a fundamental and statutory error that cannot be waived. Therefore, the witness statement of the Respondent dated 9/10/2008 is incompetent and inadmissible. It is hereby expunged having failed the statutory test of authenticity and admissibility.”
Thus, a deponent must mark the affidavit or deposition in the presence of the person before whom the oath is taken. From the provisions of Section 112 of the Evidence Act, Section 19 of the Notaries Public Act and from the decision in Buhari v INEC (supra), the person before whom the oath is taken cannot be (1) a person on whose behalf the same is offered, (2) the legal practitioner of the deponent, which includes a notary public; and (3) a partner, including a notary public, or clerk of the deponent’s legal practitioner. By virtue of the provisions of Section 10 of the Oaths Act, persons before whom an oath can be taken include a commissioner for oaths.
In my respectful opinion, the provisions of Section 4 (2) (b) and (c) of the Oaths Act are also relevant and should be examined. These provisions state as follows:
No irregularity in the form in which an oath or affirmation is administered or taken shall –
(b) invalidate proceedings in any Court; or
(c) render in admissible evidence in or in respect of which an irregularity took place in any proceedings.
It must be noted that these provisions were not at all considered in either Chidubem v Ekenna (supra), Udeagha v Omegara (supra) or Erokwu v Erokwu (supra). The attention of this Court was not drawn to these provisions. In the Supreme Court decision of Buhari v INEC (supra), the said provisions were also not considered and may not have been applicable therein having regard to the peculiar facts of that case in which the provisions of Section 19 of the Notaries Public Act were applicable. In my respectful opinion, the provisions of Section 4 (2) (b) and (c) of the Oaths Act are not ineffectual in this case. For an oath to be legally binding, it must be administered by competent authority, see Section 10 of the Oaths Act. In the instant case, the Commissioner for Oaths signed and stamped the written depositions of DW1. It was not in evidence that the mark and stamp of the Commissioner for Oaths on the depositions in issue were contrived. They have not been challenged. To my mind, the answer to a further query as to how the signature and stamp of the Commissioner for Oaths were ascribed on the written statement of DW1, can only lie in the speculative realm. I do not see how a challenge to the authenticity of the signature and stamp of the Commissioner for Oaths can be successfully raised via cross examination. Further, it is trite law that evidence elicited under cross examination can only advance the case of a party who has pleaded facts in line with the evidence; Akomolafe & Anor v. Guardian Press Ltd & Ors (2010) LPELR-366(SC); MTN v. Corporate Communication Investment Ltd (2019) LPELR-47042(SC). Therefore, if there had been a contention over the authenticity of the signature and stamp of the Commissioner for Oaths on DW1’s written statement, premised on the pleadings of the Appellant, then the evidence of DW1 regarding her written statement on oath, shorn of speculations, would be material. In this light, the trial Court ought not to have jettisoned the evidence of DW1, which she did not disown, on account of evidence elicited under cross examination, which was neither pleaded nor conclusive in nature. I therefore hold that the evidence of DW1 was wrongly discountenanced by the trial Court.

It is trite law that evidence on facts not pleaded go to no issue Ohiaeri & Anor v. Akabeze & Ors (1992) LPELR-2360(SC); Odom & Ors v. PDP & Ors (2015) LPELR-24351(SC). The Respondent pleaded in paragraph 6(t)(i) of the Statement of Defence, page 21 of the Record of Appeal, that they would rely on:
the Zenith Bank Plc cheque dated 01-09-2011 in the sum of N6, 212,380.00. Presently in the possession of the plaintiff. Notice to produce is hereby given to produce the original. In the written deposition of DW1, which was her evidence, she testified that the cheque was dated 1/9/2011. A copy of the said cheque dated 1/9/2011 was also frontloaded. In other words, what was pleaded and what was frontloaded was the Zenith Bank Cheque dated 1/9/2011. This was the same document that was identified by DW1, tendered and admitted in evidence as Exhibit D1.

The Trial Court found it significant that the Appellant did not file a Reply to the Statement of Defence to respond to paragraph 6(t)(i). Let me straightaway say that I agree with Mr. Okpale that failure to file a reply to a statement of defence, which is not accompanied by a counterclaim, may not necessarily be viewed as an admission of any new fact. Considering the function and purport of pleadings, Mukthar, JSC (as he then was) in Olubodun & Ors v. Lawal & Anor (2008) LPELR-2609 (SC) at page 32, cited with approval the authors of Halsbury’s Laws of England Fourth Edition Re issue Volume 36(1), at page 48 thereof, wherein a reply to a statement of defence, was described thus: .
“The Reply is the plaintiff’s answer to the defence. Where the plaintiff merely wishes to deny the allegations in the defence, no reply is needed and none should be served, for if no reply is served there is an implied joinder of issue on the defence. If however the plaintiff wishes to raise specifically any matter, in answer such matters or facts must be specifically pleaded and a reply is thus required.”
In Egesimba v. Onuzuruike (2002) 15 NWLR (PT. 791) 466; (2002) LPELR – 1043 (SC), Ayoola JSC held: “When a Court is faced with the contention that the failure of the plaintiff to file a reply should affect the result of the case the proper approach is first, to enquire whether a reply was essential; and secondly, if it was, whether evidence of facts which should have been pleaded in the reply had been adduced and admitted. It is a wrong approach, straightway, as the Court to below did, to hold that failure to file a reply to a statement of defence not accompanied by a counter claim amounted to an admission… ”
However, in the instant case where the statement of defence specifically pleaded that the Zenith Bank cheque dated 1/9/2011 would be relied on and a copy of the said cheque was frontloaded, the Appellant as plaintiff had a duty to respond to this fact if he was disputing it. One major rationale for the introduction in the rules of Court for frontloading of witness statements and documents to be relied on in evidence is ensure better case management by giving the other party an overview of the case he has to contend with. This would provoke an informed decision on whether to proceed with the case or pursue an amicable resolution thereto. Any attempt to ambush the other party is also thwarted as all cards are placed on the table. See: Sylvester Ors v. Ohiakwu & Ors (2013) LPELR-21882 (CA); Suleiman & Ors v. Abubakar Tafawa Balewa University, Bauchi & Anor (2019) LPELR-47708 (CA). The Appellant therefore ought to have filed a reply to the Respondent’s statement of defence challenging the date on Exhibit D1, if indeed the Appellant intended to dispute it.

It is of no consequence that DW1 in evidence, was led by Counsel for Respondent to give a wrong date for Exhibit D1. It is trite law that oral evidence cannot be allowed to add to or subtract from or alter or contradict the contents of a written document as the document speaks for itself. Therefore, parties cannot give evidence contrary to its contents; Ashaka Cem Plc v. Asharatul Mubashshurun Investment Ltd (2019) LPELR-46541(SC); Ugwuegede v. Asadu & Ors (2018) LPELR-43717(SC). See also Section 128 of the Evidence Act, 2011. The testimony of DW1 cannot detract from what the document ex facie stated. Her testimony cannot add to, subtract from, alter or contradict the contents of Exhibit D1, more so when her written deposition which she adopted as her evidence gave the date of the cheque correctly as 1/9/2011.

Further, it cannot be said that the learned trial Judge raised this issue suo motu, without addresses from Counsel. Issues had already been joined. Exhibit D1 clearly bore the date: 01-09-2011 as was pleaded, frontloaded and tendered in evidence. No change could have been made to this date either by oral evidence or by address of Counsel. Therefore, the trial Court rightly relied on the ex facie contents of Exhibit D1.

The Appellant was given notice to produce the original of Exhibit D1. The service of the notice to produce entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011; Nweke v. State (2017) LPELR-42103(SC). Therefore, having failed to so produce, the Respondent was entitled to produce and tender, as it did, the Certified True Copy of the said cheque, Exhibit D1.

Issues 1 and 2 are thus resolved against the Appellant and in favour of the Respondent.

Issue 3
The evidence of DW1, which was not disowned by the witness, as well as Exhibit D1, have by resolution of Issues 1 and 2, been found to be reliable and admissible evidence. I have carefully read the arguments of Counsel for the parties on this Issue and resolve it as follows:
Resolution
The Appellant lodged Exhibit D1 into its account held with the Respondent on 1/9/2010. Exhibit D1, a Zenith Bank Plc cheque, was dated 1/9/2011. There is no gainsaying the fact that this was a postdated cheque. I shall return to this point anon. Nevertheless, the Respondent sent the cheque for clearance on 3/9/2010. DW1 said under cross examination that clearing of cheques normally takes 3 days. But on 6/9/2010, as a result of the relationship the Appellant enjoyed with the Respondent Bank, DW1 said that the Respondent’s staff allowed the Appellant withdraw from the account, pending formal clearance of the cheque. The Appellant withdrew the sum of N3, 930,000.00 on 6/9/2010. Interestingly, PW1 admitted under cross examination that the Appellant, at the material time, was enjoying overdraft facilities granted by the Respondent and that it had a negative balance of N1,043,996.93. In other words, the Appellant was already indebted to the Respondent as at the time Exhibit D1 was lodged. As is the norm, with the lodgment of Exhibit D1, the negative balance was deducted and the Appellant’s balance became N5. 1 million.

On the same 6/9/2010, Exhibit D1 was returned unpaid. Exhibit D1 bore the stamp of Zenith Bank Plc, Makurdi Branch and indicated that the cheque was received for clearing on 3/9/2010. The stamp of the Respondent Bank indicated it was returned to them on 6/9/2010.

Undisputed facts that are clear from the foregoing are: The Appellant was already indebted to the Respondent as at 1/9/2010 by an overdraft facility with a negative balance of N1, 043,996.93 on the account. The Appellant paid in Exhibit D1 that was postdated to 1/9/2011 on 1/9/2010 (I dare say in error!). Before Exhibit D1 was formally dishonoured by the clearing Bank, the Appellant drew on the account to the tune of N3,930,000.00, notwithstanding his negative balance. PW1 admitted that after the withdrawals, his effective balance on 6/9/2010 was N1, 238,303.07. Exhibit D1 was dishonoured and the Respondent had notice of the dishonour on the same 6/9/2011.

Mr. Okpale rightly contended that the Appellant ought to be notified of the dishonour of Exhibit D1 within a reasonable time. By the provisions of Section 49(i) of the Bills of Exchange Act, Cap B8 LFN, 2004, notice of dishonour of a bill or cheque must be given promptly. Interpreting the provisions of Section 49(i) of the Bills of Exchange Act, the Supreme Court in Bank of theNorth Ltd v. Yau (2001) LPELR-746(SC) per Achike, JSC at page 18, held that:
“Section 49(1) stipulates that notice of dishonour of the bill must be given within a reasonable time thereafter. Undoubtedly, time is of the utmost importance in relation to giving notice of dishonour. There is no hard and fast rule in this matter save that it is common ground that what constitutes a reasonable time is a question of fact dependent upon the circumstances of the case.”
See also:UBA Plc v. Gostar Investment Co. Ltd (2018) LPELR-44886(CA). By Section 49 (f) of the Bills of Exchange Act the return of a dishonoured cheque is deemed “sufficient” notice of the dishonor. Further, Section 49 (h) thereof provides:
“where notice of dishonor is required to be given to any person, it may be given either to the party himself, or to his agent in that behalf.”

DW1 testified that the Appellant was immediately notified of the dishonoured cheque, though PW1 denied that he received any notification. He only found out his account had a problem on 6/1/2011 after a cheque of N2. 5 Million was paid into his account on 31/12/2010. He also said the dishonoured cheque was not returned to him. Yet again, while the Respondent said the uncleared cheque was returned to the Appellant through his agent called Solomon, on his direction, PW1 in evidence denied that it was returned. I note that under cross examination, PW1 said, page 89 of the Record of Appeal:
“It was after 6/1/2011 that I realized that my account had problem…I came and went to Gboko Branch of the defendant bank. I was told that the cheque I paid into my account was returned to them unpaid. They did not return the uncleared cheque to me…I do not recall directing that the uncleared cheque be returned to the plaintiff’s personal staff called Solomon.” (Emphasis mine)

Now, not recalling an event is quite different from a categorial denial of an event. Not recalling an event is equivalent to saying, maybe it happened, maybe it did not happen, I do not remember. Exhibit D1, which was frontloaded, clearly had a signed endorsement stating:
‘Original copy is collected by Solomon
28/2/2011’
It is instructive to note that PW1 did not categorically deny knowledge of any personal staff of his by the name of Solomon.

The learned trial Judge evaluated the evidence and held, pages 107 – 108 of the Record of Appeal:
“The foregoing shows that the PW1 and plaintiff was aware that the cheque of Zenith Bank was uncleared.

For him to deny being informed and again admit that he was informed of the dishonoured cheque shows that he is not a witness of truth…
In all, the facts before the Court warrant me to boldly state that the uncleared, postdated cheque of Zenith Bank was returned to the plaintiff’s agent Solomon. PW1 was fully aware that the cheque was returned uncleared.”

I see no reason to disturb this conclusion. In my considered opinion, the submissions of Mr. Okpale to the effect that the learned trial Judge ought not to have held that Exhibit D1 was returned to the Appellant do not hold any water in the face of the patent and clear-cut evidence that was before the trial Court.

A postdated cheque is a cheque that bears a date after the date of its issue and is payable on or after the stated date, Black’s Law Dictionary Ninth Edition, page 269. If a man gives a post-dated cheque, it means that the cheque will be paid on the date on which the cheque is presented and not earlier; Lawal v. Queen (1963) LPELR-15474(SC). Until the cheque is honoured or cleared and the amount stated thereon is paid, it is not money; Highgrade Maritime Services Ltd v. F.B.N Ltd (1991) LPELR-1364 (SC); Abeke v. The State (2007) LPELR-31(SC). Thus, while Exhibit D1 was yet uncleared, it was not money available for the use of the Appellant. However, the Respondent through its staff, despite the existing negative balance on the Appellant’s account, permitted it to draw from the uncleared funds. What then was the effect of this? In simple terms, the Appellant would be deemed to have been granted an overdraft by the Respondent and would become a debtor to the Respondent to the extent of the funds drawn. In Ishola v. Societe Generale Bank (Nig) Ltd (1997) LPELR-1547(SC), the Supreme Court, per Iguh, JSC, at page 28, gave the position of the law thus:
“Again, with respect, the principle of law is long settled that if a customer draws a cheque for a sum in excess of the amount standing to the credit of his current account, it is nothing but a request for a loan and, if the cheque is honoured, the customer has borrowed the money by way of overdraft from the bank. See Cuthbert v. Robarts Lubbock & Co (1909) 2 Ch. 226 at 233 and A.C.B. Ltd. v. Egbunike & Anor (1988) 4 NWLR (Pt.88) 350 at 365.”

The Noble Lord of the Apex Court at pages 29 – 30 of the E-Report also cited with approval the opinion of the learned authors, Megram and Rydenim, expressed in their book Paget’s Law of Banking, 8th edition at page 132:
“The authoritative opinion of the learned authors Megram & Ryder in their book Pagets Law of Banking, 8th Edition at page 132 is here relevant. It reads: –
“The drawing a cheque or accepting a bill payable at the Bank, when there are no funds sufficient to meet it, is presumably a request for an overdraft.”
See also: Lion Bank (Nig) Plc v. Amaikom (2008) ALL FWLR (Pt. 417) 85; Greentek Ltd & Anor v. Access Bank Plc (2015) LPELR-25999(CA); Obichi Investment & Management Consultant Ltd v. Oluchukwu Micro Finance Bank (2018) LPELR-44204(CA). To my mind therefore, from the straightforward facts of the instant case, the Appellant, who drew on uncleared funds from its account which was already in negative balance, was deemed to have been granted an overdraft by the Respondent Bank. In the absence of articulated and explicit terms for repayment, the Respondent was entitled to debit the Appellant’s account to recover the overdraft. I find support in this view having regard to the position of the law as expressed in Bank of the North Ltd v. Yau (supra) by Ayoola, JSC, thus, page 46 of the E-Report:
“The law seems clear that if a cheque is dishonoured on presentation, the collecting bank can debit the customer’s account with the amount.”
Therefore, the Respondent was entitled to debit the Appellant’s account to recover the sum of N6, 212, 350.00.

I find very revealing the fact that the Appellant, whose case was that the Respondent debited its account wrongfully, made no effort to inform the drawer of the cheque, Exhibit D1, about the dishonour. He also made no attempt to submit a report against the Respondent to regulatory authorities. Under cross examination, he said, page 89 of the Record of Appeal:
“I did not write to the originator of the uncleared cheque…I did not report the defendant to the regulatory agencies. I do not need to go and I never went to Zenith Bank recipient of the uncleared cheque.”

A man, whose account was purportedly wrongfully debited by a bank to the tune of N6, 212, 350.00 on account of funds drawn on a cheque which was allegedly duly cleared, did not bother to notify the drawer of the cheque that the said cheque was said to have been dishonoured, and, did not bother to report the bank to regulatory agencies when his account was not promptly credited by the bank! This narrative does not at all have the ring of truth. I agree with Mrs. Fayomi for the Respondent that the testimony of PW1 reveals its unreliability. As she submitted, for an honest and diligent customer who disbelieved his banker, the only path of honour would have been to confirm with the regulatory agencies, the drawer of the account and the confirming bank, Zenith Bank Plc.

In my considered view, a calm evaluation of the evidence adduced by the Appellant in support of its claims underscores and validates the finding of the learned trial Judge thus, page 106 of the Record of Appeal:
“This is a clear case where the plaintiff wish(sic) to reap where he does(sic) not sow(sic) by transgressing positive law and rules of this country. He can not be allowed to benefit with any conscience based on the facts before the Court. The

plaintiff and staff of the defendant who colluded with him to draw the money on a post dated and uncleared cheque are in pari delicto. I deprecate this conduct which is aimed at frauding(sic) the bank which is a corporate personality that can only function through her staff.”

In dismissing the action, the Trial Court concluded, page 108 of the Record of Appeal:
“The entire action is manipulated, vexatious and unconscionable.”

I completely agree. The fact that these claims have been carried on to the instant appeal is, in my opinion, most unfortunate. I need say no more!

This appeal is totally devoid of merit. It fails and is hereby dismissed. The Respondent is entitled to costs against the Appellant, which is assessed at N50,000.00.

CROSS APPEAL
The cross-appeal, which was considered and resolved under Issue 1 of the substantive appeal earlier determined, is meritorious. The cross-appeal succeeds and is hereby allowed.

The Cross Appellant is entitled to costs against the Cross Respondent, which is assessed at N50,000.00.

IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading in advance the lead judgment of my learned brother, HON. JUSTICE O.A. OTISI, JCA; and am in complete agreement with his reasoning and conclusion. “In our adversarial system of litigation, the law always places the burden of proof In civil matters on the plaintiff/claimant/petitioner/applicant, as the case may be, to satisfy the Court by leading concrete cogent and valid evidence with a view to establishing his claim”- See In Re: Amolegbe (2014) 8 NWLR (Pt.1408) 76 at 98-99 paragraphs “G”-”B” per I.T. Muhammad, JSC.
Section 133 of the Evidence Act, 2011 also provides thus:
133(1) In civil cases, the burden of first proving existence or none existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to a any presumption that may arise on the pleadings.
(2) If the party referred to, In Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved Is established, the burden lies on the party against whom judgment would be given If no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”

JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned brother. Otisi, JCA. I agree with the reasoning and conclusion therein which I adopt in dismissing the appeal and allowing the cross-appeal. I abide by the orders as to costs made in the lead judgment.

Appearances:

S.O. Okpale, Esq., with him, O.M. Iyokpo, Esq., A.M. Owunna, Esq., J.U. Ezeokafor, Esq., and D.O. Peace-Omenka, Esq. – for Appellant/Cross Respondent For Appellant(s)

Mrs. M.E. Fayomi – for Respondent/Cross Appellant For Respondent(s)