OKPOKO COMMUNITY BANK LTD. & ANOR. v. DR. P. C. IGWE (2012)

OKPOKO COMMUNITY BANK LTD. & ANOR. v. DR. P. C. IGWE

(2012)LCN/5706(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of December, 2012

CA/E/375/2007

RATIO

APPEAL: EFFECT OF FAILURE TO PROFFER ARGUMENT EITHER IN BRIEF OR AT THE HEARING OF THE APPEAL

It is trite that a party who merely states in his brief that he has a preliminary objection and states the grounds thereof without more does not tantamount to argument. Failure to proffer argument either in his brief or at the hearing of the appeal is clear indication that he has abandoned same. That was the position taken by the Apex Court in National Horticultural Research Institute v. Alhaji Muraina Ayoade & Ors. (1997) 11 NWLR (Pt.530) 541 at 547 where it was held that:

“Where a party indicated in his brief of argument that he has a preliminary objection to raise at the hearing of the appeal but failed to move the court to take the objection at the hearing of the appeal, such preliminary objection is deemed to have been abandoned.”

There is no doubt that the Respondent herein, having failed to move the court to hear his preliminary objection at the hearing of this appeal, and having also, in the alternative, failed to proffer argument in his brief in support of the preliminary objection, has abandoned same. The said preliminary objection, as urged by the learned counsel for the Appellant, is hereby deemed abandoned and discountenanced. PER JOHN INYANG OKORO, J.C.A.

PLEADINGS: WHETHER PLEADINGS CONSTITUTE EVIDENCE

It has to be noted that pleadings cannot constitute evidence and a party as in the instant case, who does not give evidence in support of his pleadings or in challenge of the evidence of the adverse party, is deemed to have accepted and rested his case on the facts adduced by his opponent notwithstanding his general traverse in the case. In Joseph Ifeta v. Shell Petroleum Development Company of Nigeria Limited (2006) 1 NWLR (Pt.983) 585, the Supreme Court held that averments in pleadings on which no evidence is adduced, are deemed to have been abandoned as mere averment without proof of facts pleaded does not constitute proof of such facts unless such facts are admitted. See also Union Bank of Nigeria Plc & Anor. v. Ayodara & Sons Nigeria Limited (2007) 4 – 5 SC, 42. PER JOHN INYANG OKORO, J.C.A.

EVIDENCE: BURDEN OF PROOF IN CIVIL CASES

Generally, in civil cases, the onus of proving a particular fact is on the party who asserts. And because civil cases are determined on the balance of probabilities and preponderance of evidence, a party who has led credible evidence to prove his case will obtain judgment based on such preponderance of evidence and balance of probability in his favour. See Newbreed Organisation Limited v. Erhomosele (2006) 5 NWLR (Pt.974) 499, Elias v. Omo-Bare (1982) 5 SC 25, Arase v. Arase (1981) 5 SC, 33.

However, where a defendant fails to adduce evidence to put on the other side of the imaginary scale of justice, a minimum evidence adduced by the plaintiff will suffice to prove his case. Such was the decision of the Supreme Court in Nzeribe v. Dave (1994) 9 SCNJ 161 at 172 – 173 wherein the Apex Court held:

“Where evidence given by a party to any proceedings or by his witness is not challenged by the opposite side who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence… As the defendant offered no evidence whatsoever in his defence, the evidence before the court obviously goes one way with no other set of facts or evidence to weigh against it. There is nothing in such a situation to be put on the other side of the imaginary scale of the balance, as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case is usually discharged on a minimal of proof. “(Italics mine for emphasis)”.

See also Gbadamosi Adegoke v. Chief Nathaniel Agboda Adibi & Anor. (1992) 5 NWLR (Pt.242) 410; (1992) 6 SCNJ 136. Emmanuel Jiaza v. Hassan Bamgbose & Anor. (1999) 7 NWLR (Pt.610) 182, (1999) 5 SC (Pt.1) 58. PER JOHN INYANG OKORO, J.C.A.

COURT: DUTY OF TRIAL COURT TO MAKE FINDINGS OF FACT

“It is trite law that it is the duty of the trial court to make findings of fact on material evidence/issue adduced before it vide Kalo v. Woluchem (1985) 1 NWLR (Pt. 4) 610, Obiaso & Ors. v. Okoye & Ors. (1989) 5 NWLR (Pt.119) 80. Unless issue is joined between the parties, the judge is not expected to make any finding of fact therein; and such non-finding cannot lead to a miscarriage of justice. ” PER JOHN INYANG OKORO, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. OKPOKO COMMUNITY BANK LTD.
2. PETER ONUEGBU
(Manager, Okpoko Community Bank Ltd.) Appellant(s)

AND

DR. P. C. IGWE Respondent(s)

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Anambra State High Court sitting in Onitsha in suit No.O/289/2004, delivered on 24th July, 2006 per Agbata, J. wherein the learned trial judge entered judgment for the Respondent in terms of the reliefs sought. The facts leading to the said judgment as can be garnered from the record transmitted to this court are as stated hereunder.
The Respondent, a Medical Doctor, as plaintiff at the court below, sued the Appellants, Community Bank Operators for the following reliefs:-
“(a) N2,986,838.57k being the fixed deposit and amount accruing thereon as at 31st March , 2004.
(b) N166,857.65k being amount in plaintiff’s current account as at 31st March, 2004.
(c) Interest at 5% per annum on the said sum until judgment.
(d) Interest at 4% per annum until the judgment is satisfied.”
Originally, the suit was brought under the Undefended List but was later transferred to the general cause list. Both parties exchanged pleadings. The Respondent alleged in his statement of claim that the 2nd appellant persuaded him to fix the sum of N2,160,810.00 with the 1st Appellant. That upon maturity, he demanded for the money including accrued interest but the appellants failed to pay him. The Appellants in their statement of defence averred that the alleged fixed deposit was cancelled and that it was merged with current account. That the Respondent withdrew the money leaving a deficit account. The Appellants counterclaimed against the Respondent for the money in the deficit.
At the trial, the Respondent testified and called one witness in proof of his case. The Appellants did not testified and did not call any evidence. Rather, they relied on the case of the Respondent. Counsel for both parties filed their written addresses. Thereafter, the learned trial judge entered judgment for the Respondent on 24th July, 2006.
Dissatisfied with the stance of the learned trial judge, the Appellants filed notice of appeal on 27th September, 2006. The said Notice contains four grounds of appeal out of which the Appellants have formulated three issues for the determination of this appeal. In the brief signed by D. C. Maduechesi Esq., learned counsel for the Appellants; the three issues are as follows:-
“1. Whether or not the Respondent discharged the burden of proof required of him to be entitled to judgment?
2. Whether the failure of the Appellants to adduce viva voce evidence at trial automatically entitled the Respondent to obtain judgment.
3. What was the status of the 2nd appellant in the entire transaction leading to this suit.”
The learned counsel for the Respondent, Olivia Nneka Ofodile Esq., who also signed the Respondent’s brief distilled two issues for determination. These are the two issues:
“1. Whether the Respondent discharged the burden of proof required of him in this civil matter.
2. What is the legal effect of failure of a party to adduce documentary or viva voce evidence at the trial?”
Before I take a further step in this judgment, I observe that the Respondent has on page two and particularly paragraph 2.06 thereof, given Notice of Preliminary Objection in respect of the third issue in the Appellants’ brief of argument. Also in paragraph 2.07, of the said Respondent’s brief, he has given the grounds for the preliminary objection. For whatever it is worth, the said objection is to the effect that issue 3 is a fresh issue as same is not bourne out of the judgment of the learned trial judge delivered on 24th July, 2006. However, as was rightly observed by the learned counsel for the Appellants in their Reply Brief, the Respondent appears to have abandoned the said objection. The reason being that he neither incorporated argument on the said objection in his brief nor moved the court to hear same at the hearing of the appeal. It is trite that a party who merely states in his brief that he has a preliminary objection and states the grounds thereof without more does not tantamount to argument. Failure to proffer argument either in his brief or at the hearing of the appeal is clear indication that he has abandoned same. That was the position taken by the Apex Court in National Horticultural Research Institute v. Alhaji Muraina Ayoade & Ors. (1997) 11 NWLR (Pt.530) 541 at 547 where it was held that:
“Where a party indicated in his brief of argument that he has a preliminary objection to raise at the hearing of the appeal but failed to move the court to take the objection at the hearing of the appeal, such preliminary objection is deemed to have been abandoned.”
There is no doubt that the Respondent herein, having failed to move the court to hear his preliminary objection at the hearing of this appeal, and having also, in the alternative, failed to proffer argument in his brief in support of the preliminary objection, has abandoned same. The said preliminary objection, as urged by the learned counsel for the Appellant, is hereby deemed abandoned and discountenanced.
Although the preliminary objection has not been considered, having been abandoned, the truth is that the third issue in the Appellant’s brief lacks the substratum and therefore unsustainable. The facts of this case show that the Appellants did not testify at the court below and did not also call any witness to testify. There is therefore no evidence on the status of the 2nd Appellant. In other words, the issue as to the status of the 2nd Appellant was never canvassed before the learned trial judge and as such he did not make any finding and pronouncement on it. Having not been raised and decided upon at the court below, any attempt to raise it in this court renders it a new issue and it is trite that such an issue can only be raised here with the leave of court. There is no evidence that such leave has been sought and obtained before the issue of the status of the 2nd Appellant was raised. Such an issue is untenable and must be struck out. See Owners of M. V. Gongola Hope v. S.C. Nigeria Limited (2007) 15 NWLR (Pt.1056) 189, (2007) 6 SC. (Pt. 11) 58 Fadiora v. Gbadebo (1978) 3 SC 219, Dweye v. Iyomahan (1983) 8 SC 76, University of Ibadan v. Adetoro (2000) 9 NWLR (Pt.673) 631. Samuel Isheno v. Julius Berger Nigeria Plc. (2008) 6 NWLR (Pt.1084) 582.
In the Appellants’ Reply brief, learned counsel for the Appellants had submitted that the issue was raised in paragraph 5 of their statement of defence. I have perused paragraph 5 of the said statement of defence and all the Appellants stated there is that “…The 2nd defendant was merely a manager with the 1st defendant.” It has to be noted that pleadings cannot constitute evidence and a party as in the instant case, who does not give evidence in support of his pleadings or in challenge of the evidence of the adverse party, is deemed to have accepted and rested his case on the facts adduced by his opponent notwithstanding his general traverse in the case. In Joseph Ifeta v. Shell Petroleum Development Company of Nigeria Limited (2006) 1 NWLR (Pt.983) 585, the Supreme Court held that averments in pleadings on which no evidence is adduced, are deemed to have been abandoned as mere averment without proof of facts pleaded does not constitute proof of such facts unless such facts are admitted. See also Union Bank of Nigeria Plc & Anor. v. Ayodara & Sons Nigeria Limited (2007) 4 – 5 SC, 42. In the instant case, there is no evidence touching and concerning the status of the 2nd Appellant. The issue being raised – issue No.3 is a fresh issue and not having sought and obtained leave before raising it, that issue is incompetent and is accordingly discountenanced and struck out. Since issue No.3 was formulated from grounds three and four, having struck out the said issue, the two grounds i.e. three and four are also struck out as there is no issue distilled from them.
Having struck out issue three, this appeal shall be determined based on issues one and two in the Appellants’ brief which are also in tandem with the two issues formulated by the Respondent.
On the first issue, the learned counsel for the Appellants submitted that in all suits, the onus of proving a particular fact is generally on the party who asserts it. He contends that the respondent failed woefully to discharge the burden of proof required of him to sustain his claims against the appellants. It was his submission that the Respondent failed to prove that he actually deposited any money with the 1st appellant and how the money was deposited. Submitting further, learned counsel opined that exhibit 2, the fixed deposit receipt was not enough evidence of payment particularly as the said exhibit was cancelled. On the meaning of the word “cancel”, learned counsel refers to Black’s Law Dictionary. Furthermore, learned counsel contended that the best way of proving payment of money into a bank account is by the production of a bank teller or an acknowledgment showing on the face of it the bank received the payment, relying on the case of Saleh v. Bank of the North Limited (2006) 6 NWLR (Pt.976) 316. According to learned counsel, the Respondent failed to tender any such teller. In support of his argument that the party who asserts must prove, he cites the following cases: Newbreed Organisation Limited v. Erhomosele (2006) 5 NWLR (Pt. 974) 499, Agada v. Emanuotor (1999) 8 NWLR (Pt.615) 407, Bello v. Aruwa (1999) 1 NWLR (Pt.615) 476 and Olaiya v. Olaiya (2002) 8 NWLR (Pt. 782) 652.
The Appellants in their brief, on pages six and seven made copious argument on the issue of fraud. In summary, it was their complaint that the Respondent did not prove ingredients of fraud against the appellants at the court below. That the attempt by the respondent to use Exhibit P1 as a proof of his allegation of fraud became suspect when he admitted in cross examination that he made use of the said exhibit to withdraw money from the 1st appellant on several occasions. Learned counsel contended that where an allegation of crime is a fact directly in issue in a civil proceedings, the standard of proof required to succeed is not on the balance of probabilities but proof beyond reasonable doubt, citing and relying on the case of Koiki v. Magnusson (1999) 8 NWLR (Pt.615) 492. In conclusion, learned counsel submitted that the Respondent failed to prove his case to be entitled to judgment. He urged this court to resolve this issue in favour of the Appellants.
In his response to arguments on issue one, the learned counsel for the Respondent submitted that by Section 133(1) of the Evidence Act, 2011 the burden of proof lies on the party against whom judgment would be given if no more evidence were adduced and that he who asserts must prove.
It is his further submission that civil cases are determined on the balance of probability and preponderance of evidence and that a party who proves his case will obtain judgment based on such preponderance of evidence and balance of probability shown to be in his favour. He opined that the learned trial judge applied this principle fairly to this case when he entered judgment for the Respondent. He relies on the cases of Newbreed Organisation Limited v. Erhomosele (2006) 5 NWLR (Pt. 974) 527 and Anyanwu v. Mabra (1992) 5 NWLR (Pt.242) 386.
After a brief review of the evidence adduced by the Respondent at the court below, learned counsel submitted that the Respondent proved that he deposited money with the 1st Appellant by a fixed deposit which the Appellants failed to refund at the maturity of the term together with the interest thereon.
Learned counsel argued that bearing in mind that this matter was actually transferred from the undefended list to the general cause list, the Appellant had ample opportunity to partake in the proceedings and that they indeed took part in the proceedings but failed to challenge the evidence as led by the Respondent. He urged this court to hold that the learned trial judge was right in relying on the unchallenged evidence of the Respondent to enter judgment for him. He further urged this court to resolve this issue in favour of the appellant.
Generally, in civil cases, the onus of proving a particular fact is on the party who asserts. And because civil cases are determined on the balance of probabilities and preponderance of evidence, a party who has led credible evidence to prove his case will obtain judgment based on such preponderance of evidence and balance of probability in his favour. See Newbreed Organisation Limited v. Erhomosele (2006) 5 NWLR (Pt.974) 499, Elias v. Omo-Bare (1982) 5 SC 25, Arase v. Arase (1981) 5 SC, 33.
However, where a defendant fails to adduce evidence to put on the other side of the imaginary scale of justice, a minimum evidence adduced by the plaintiff will suffice to prove his case. Such was the decision of the Supreme Court in Nzeribe v. Dave (1994) 9 SCNJ 161 at 172 – 173 wherein the Apex Court held:
“Where evidence given by a party to any proceedings or by his witness is not challenged by the opposite side who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence… As the defendant offered no evidence whatsoever in his defence, the evidence before the court obviously goes one way with no other set of facts or evidence to weigh against it. There is nothing in such a situation to be put on the other side of the imaginary scale of the balance, as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case is usually discharged on a minimal of proof. “(Italics mine for emphasis)”.
See also Gbadamosi Adegoke v. Chief Nathaniel Agboda Adibi & Anor. (1992) 5 NWLR (Pt.242) 410; (1992) 6 SCNJ 136. Emmanuel Jiaza v. Hassan Bamgbose & Anor. (1999) 7 NWLR (Pt.610) 182, (1999) 5 SC (Pt.1) 58.
It follows that where a defendant refuses to adduce evidence in his defence and rests his case on the evidence of the plaintiff, as was done in the instant case, then the trial court is entitled to find for the plaintiff based on his evidence. To make it more explicit, what I am saying is that where a plaintiff adduces oral credible evidence which establishes his claim against the defendant in terms of the writ or statement of claim, and that evidence is not rebutted by the defence either by challenging the same under cross-examination or by controverting same in evidence, the plaintiff is entitled to judgment. The reason for saying so is that such attitude of the defendant is interpreted to mean that he has accepted or deemed to have accepted the pleadings and evidence of or the case of the plaintiff. The standard of proof in such circumstance, as I said earlier, is minimal. See Buraimoh v. Bangbose (1989) 3 NWLR (Pt.109) 352, Tsokwa Oil Marketing Company Nigeria Limited v. Bank of the North Limited (2002) 11 NWLR (Pt. 777) 163, Okoebor v. Police Council (2003) 12 NWLR (Pt.834) 444.
In the instant case, the Appellants herein actually filed their statement of defence but failed to lead evidence in proof of the averments made therein. It is trite law that pleadings do not constitute evidence. Therefore where a pleading is not supported by evidence, oral or documentary, it is deemed by the court as having been abandoned. In this case, although the appellants filed a statement of defence, they failed to adduce evidence in support thereof. As I said earlier, the averments are deemed abandoned. See Suara Yusuf v. Oladepo Oyetunde & Ors. (1998) 9 – 8 SC 123; Omoboriowo v. Ajasin (1984) 1 SCNLR 108, (1984) 1 SC 205; Ezeanah v. Attah (2004) 7 NWLR (Pt.873) 468.
The Appellants’ main complaint apart from the fact that they woefully failed to challenge the evidence of the Respondent is that the Respondent did not prove that he actually deposited money with the 1st Appellant. Although there is nowhere in the judgment of the learned trial judge where the court below referred to the evidence of the Respondent in respect of deposit of the said amount by the Respondent, that does not mean that the Respondent did not lead evidence to that effect. On pages 84 – 85 of the record of appeal, the Respondent as P.W.1 gave evidence and states as follows inter alia:
“On my said fixed deposit account with the 1st defendant, I fixed the sum of N2,160,810.00. I fixed the money so as to safeguard it and also get paid some interest on it. The 2nd defend ant persuaded me strongly, to deposit the money with the 1st defendant. I fixed the amount in July, 2003 for a period of six months. It was to mature on 19/1/04.
I don’t have the original of the Certificate aforesaid. The 2nd defendant took if from me when the said fixed deposit matured.”
The Respondent had earlier on page 84 of the record stated that;
“For the current account, I was issued with a cheque book bearing the inscription “Ikpere Mmiri Community Bank”. For the fixed deposit account, I was issued a certificate”.
It is this certificate alluded to earlier that the Respondent said that the 2nd Appellant took it from him when the fixed deposit matured. The Appellants were in court and heard this damaging piece of evidence and yet they did nothing, only to come to this court and say that the Respondent failed to prove that he actually deposited the money. By not leading evidence to deny or disprove the testimony of the Respondent that the 2nd appellant took the certificate of deposit from him, what did they expect the learned trial judge to do in the circumstance? I think it was reasonable for the court below to accept that the appellants admitted this piece of evidence by refusing to challenge it, particularly when the Respondent gave the appellants notice to produce the original certificate of deposit but they refused to produce same. Section 167(d) of the Evidence Act 2011 states that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Clearly, if the Appellants had produced the certificate of deposit, it may not have been favourable to them.
It is my view that the Respondent led cogent evidence to prove that he actually deposited money with the Appellant as fixed deposit.
One other issue which the Appellants made much weather of relates to issue of fraud. It was their contention that the Respondent failed to prove issue of fraud beyond reasonable doubt. Honestly, I have not seen where the issue has taken centre stage in this appeal. The Respondent merely stated that the 2nd Appellant persuaded with him to deposit his money with the 1st Appellant but that on maturity, they refused to pay him.
It is trite that it is only when an allegation of a crime is a fact directly in issue in a civil proceeding that the standard of proof required to succeed is that beyond reasonable doubt. Where the allegations of crime is not the basis for the civil matter, the plaintiff is required to prove his case as in a normal civil matter. See Koiki v. Magnusson (1999) 8 NWLR (Pt.615) 492, Folami v. Cole (1990) 2 NWLR (Pt.133) 445. In the instant case, the issue of fraud did not feature in the case prominently. In fact, I have not seen either in the evidence of the Respondent or the judgment of the learned trial judge where the issue of fraud was given prominence. In any case, the Appellants did not stand trial on issue of fraud but for their refusal to honour their part of the contract they entered into with the Respondent.
It is true that the best way of proving payment of money into a bank account is by the production of a bank teller or an acknowledgment showing on the face of it that the bank received the payment, but where money is deposited in a bank and a certificate is issued to the customer, that certificate, when produced, will suffice. In the instant case, the certificate of deposit is alleged to be with the appellants which they have not denied.
The learned counsel for the appellants had submitted that the word “cancel” is written on the face of Exhibit P2, the photocopy of the certificate of deposit. It is my view that they are not at this stage entitled to say this. Where is the original? Why are they hiding it from the court? I think they lost the opportunity to challenge the Respondent on the issue. For me, I attach no importance to this piece of argument.
Generally, it is my view that the Appellant, having been given the opportunity to defend this suit which was initially brought under the undefended list procedure, but failed to lead evidence to challenge the evidence of the Respondent, they lost the opportunity to show that the Respondent’s evidence was not credible and I think the learned trial judge was right to act on it as he did. Accordingly, I resolve the first issue against the Appellants.
The second issue formulated by the Appellant is whether the failure of the Appellants to adduce viva voce evidence automatically entitles the respondent to obtain judgment on a minimal proof. Learned counsel for the Appellant submits that the plaintiff should succeed on the strength of his case and not on the weakness of the case of the defendant, relying on the case of Nnamdi Azikiwe University & Ors. v. Casmir Nwafor (1999) 1 NWLR (Pt. 585) 116 at 140 – 141. It is his contention that apart from the fact that the Appellants did not give evidence at the trial, although their counsel participated, the learned trial judge misapplied the decision of the Supreme Court in Nzeribe v. Dave (supra). It was his view that the Supreme Court did not remove the hallowed responsibility from a trial court to review or ascertain whether the evidence led by the plaintiff could sustain his claim.
Again, referring to the earlier cited case of Newbreed Organisation Limited v. Erhomosele (supra) learned counsel submitted that the learned trial judge did not address his mind on the strategy the Appellants used in prosecuting their defence. According to him, the mere fact that a case is not defended does not entitle the trial court to overlook the need to ascertain whether the facts adduced before it establish or prove the claim or not; relying on the case of Oyewole v. Oyekola (1999) 7 NWLR (Pt.612) 560. It is his further contention that the failure of the Appellants to testify or call evidence cannot alleviate the primary burden on the Respondent to prove his case, referring to these cases: Dakin Gari v. Ward & Green (2001) 5 NWLR (Pt.707) 718, Umeojiako v. Ezeamuo (1990) 1 NWLR (Pt.126) 253 and Ali v. Obanae (1999) 9 NWLR (Pt.620) 620.
Finally, learned counsel submitted that where the trial court failed to evaluate the evidence, the appellate court always has the competence to interfere with or disturb the evaluation of evidence and finding of facts in certain circumstances citing the case of Saleh v. B.O.N. Limited (2006) 6 NWLR (Pt. 976), and also Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt. 825) 337, Mogaji v. Odofin (1978) 4 SC 91, Woluchem v. Gudi (1981) 5 SC 291 and Ebba v. Ogodo (1984) 1 SCNLR 372.
Learned counsel urged this court to resolve this issue in favour of the Appellants.
In a short reply, the learned counsel for the Respondent submitted that being a civil matter, the Appellants by refusing voluntarily to lead evidence, show that the case of the Respondent was not challenged and that by refusing to call evidence and resting their case solely on the Respondent’s case have in effect denied the court of the evidence to be placed in the other side of the imaginary scale of justice. That it follows that any minimum evidence adduced by the Respondent will suffice to prove the Respondent’s case. He cites the cases of Karibo v. Grend (1992) 3 NWLR (Pt.230) 426, Nzeribe v. Dave (supra) and Newbreed Organisation Limited v. Erhomosele (supra). He urged this court to resolve this issue against the appellants.
In the instant case, at the close of the plaintiff’s case (now respondent) the appellants did not testify, rather, they rested their case on that of the Respondent. In Newbreed Organisation Limited v. Erhomosele (supra) the Supreme Court held that where a defendant rests his case on that of the plaintiff, such a stance is a legal strategy and not a mistake. According to the Apex Court, the implication is that:
(a) the defendant is stating that the plaintiff has not made out any case for the defendant to respond to; or
(b) he admits the facts of the case as stated by the plaintiff, or
(c) he has a complete defence in answer to the plaintiff s case.
See also Agwocha v. Agwocha (2005) 1 NWLR (Pt. 906) 165, Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118 and NEPA v. Olagunja (2005) 3 NWLR (Pt.913) 602.
From the grounds of appeal and the issues formulated for determination, it appears to me that the Appellants herein are relying on the first option, i.e. that the Respondent failed to make out a case for them to defend. I have dealt with this in the 1st issue and I do not intend to repeat it here. But let me say that the mere fact that a case is not defended does not entitle the trial court to overlook the need to ascertain whether the evidence adduced before it establish or prove the claim or not. A trial court is not for any reason relieved of the burden of ensuring that the evidence adduced in support of a case sustains it irrespective of the posture of the defendant. See Oyewole v. Oyekola (1999) 7 NWLR (Pt.612) 560.

Apart from ensuring that the evidence led supports the case of the plaintiff, and this, a trial, court must do, it is only bound to make findings of fact on issues joined between the parties. In Karibo v. Grand (1992) 3 NWLR (Pt. 229) 426 at 439 – 440 pages H – A, the Supreme Court held that:
“It is trite law that it is the duty of the trial court to make findings of fact on material evidence/issue adduced before it vide Kalo v. Woluchem (1985) 1 NWLR (Pt. 4) 610, Obiaso & Ors. v. Okoye & Ors. (1989) 5 NWLR (Pt.119) 80. Unless issue is joined between the parties, the judge is not expected to make any finding of fact therein; and such non-finding cannot lead to a miscarriage of justice. ”
As already stated while considering the first issue, where the defendant fails to adduce evidence to counter or challenge the evidence of the plaintiff, the burden of proof on the plaintiff is minimal. But then, the learned trial judge has to make sure that the evidence, though one sided, supports the case of the plaintiff.
In the instant case, the main evidence before the court is that the Respondent deposited money in a fixed deposit account with the Appellants. That the certificate of deposit was collected back by the 2nd Appellant and that they have failed to repay the money at maturity. The Appellants have failed and/or refused to produce the certificate of deposit or deny it. Secondly, the Appellants have failed and or refused to say either that the Respondent did not deposit such money or that the money had been repaid. The Appellants have also failed to admit or deny the account numbers which the Respondent said he kept with the Appellants. For me, I pitch my tent with the court below that the Respondent proved his case before that court. The Respondent stated that he deposited the sum of N2,160.810.00 and that as at 31st march, 2004, the amount with agreed interest had risen to N2,986,838.57k. The Respondent also stated that he has the sum of N166,857.65k in his current account with the Appellants. What else did they expect him to say? It is my view that there was enough evidence which the learned trial judge relied upon to enter judgment for the Respondent.
Although, I agree that a trial court has to consider the evidence of the plaintiff whether the defendant defends the suit or not, I am of the view that in the instant case, there was enough evidence to enter judgment for the Respondent herein. It has to be noted that the Appellants even failed to lead evidence to establish their counter claim against the Respondent and they are not even talking about it. The question may be asked if the counter claim was not a gimmick. The attitude of the appellants from the beginning to the end of the matter at the court below was that of unseriousness but I think it is too late in the day. Be that as it may, this issue does not avail the Appellants at all.
On the whole, having resolved the two issues against the appellants, this appeal is devoid of any scintilla of merit and is accordingly dismissed in its entirety. I award costs of N50,000.00 in favour of the Respondent.

ABUBAKAR JEGA ABDULKADIR, J.C.A.: I have had the opportunity of reading in advance the lead Judgment delivered by my learned brother Okoro, JCA. I agree with the reasoning and the conclusion reached, that the appeal lacks merit and substance and should be dismissed. I also dismiss the appeal, and abide by the consequential orders made in the lead Judgment.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading before today, the lead judgment just delivered by my learned brother, JOHN INYANG OKORO J.C.A. I entirely agree with the reasoning therein and the conclusion that the appeal lacks merit. I too dismiss the appeal and abide by the award of costs.

Appearances

D. C. Maduechesi Esq.,For Appellant

AND

Nneka Ofodile (Miss)For Respondent