OWENA MASS TRANSPORTATION COMPANY LIMITED v. ENTERPRISES BANK LIMITED (2014)

OWENA MASS TRANSPORTATION COMPANY LIMITED v. ENTERPRISES BANK LIMITED

(2014)LCN/6765(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of January, 2014

CA/B/132/2005

RATIO

EVIDENCE: HOW TO PROVE THE CONTENTS OF A DOCUMENT WHERE THE ORIGINAL IS UNAVAILABLE

It is a settled law that the contents of a document can be proved in a proceeding by tendering the original document or where the original is unavailable by a certified true copy of the said original as the secondary evidence of the said original. See Goodwill & Trust Investment Ltd v. Witt & Bush Ltd (2011) 8 NWLR 500, Iteogu v. L.P.D.C (2009) 17 NWLR (Pt. 117) 614 S.C. Narindex Trust Ltd v. N.I.M.B Ltd (2001) 10 NWLR (Pt.721) pg. 321. Yassin v. Barclays Bank DCO (1998) 1 ALL NLR 171 @ 177, Oguma v. I.B.W.A (1998) 1 NWLR (Pt 73) 658, Anyaebosi v. R.T. Briscoe Ltd (1987) 3 NWLR (Pt. 59) 84, Akara v. Egbue (2003) 17 NWLR (Pt. 8451) 1, Section 971 of the Evidence Act. Per SOTONYE DENTON-WEST, J.C.A.

ESSENCE OF OFFER AND THE ACKNOWLEDGMENT OF THE ACCEPTANCE OF THE TERMS SET OUT IN A CONTRACTUAL DOCUMENT

A party who enters into an agreement is clearly bound by the terms of the agreement and he cannot seek for better terms midstream or when the agreement is a subject of litigation, when things are no longer at ease. Although a party may seek for better terms, the court is bound by’ the original terms of the agreement and will interfere them only in the interest of justice. See: Idoniboye-Obu v. NNPC (2003) 4 MJSC 131 @ 168 para G. Sergius Onyekwelu. v. Ele Petroleum Nigeria Ltd (2009) All FWLR (Pt. 469) @ 438 paras D-E. Per SOTONYE DENTON-WEST, J.C.A.

WORDS AND PHRASES: OFFER

An offer is an expression of willingness to contract on certain terms by a person to whom it is made with the intention that it shall become binding as soon as it is addressed. Once the offer is unconditionally accepted, a valid contract has come into existence. See: UNIC Ltd. v. FADCA Ind. (Nig.) Ltd (2000) 4 NWLR (Pt. 653) 4006 @ 417, INNIH v. FERADO Agro & Construction Ltd. (1990) 5 NWLR (Pt. 152) 604; SONA BREW PLC v. PETERS (2005) 1 NWLR (908) 478 @ 488, Pan African Bank Ltd. v. Ede (1998) 7 NWLR (Pt. 558) 442, Ezenwa v. Ekong (1999) 11 NWLR (Pt. 652) 55, FBN Plc v. Nodom-Egba (2006) ALL FWLR (Pt. 307) 1012 @ 1033 para D-E. Per SOTONYE DENTON-WEST, J.C.A.

JUSTICES

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

OWENA MASS TRANSPORTATION CO. LTD Appellant(s)

AND

ENTERPRISES BANK LTD Respondent(s)

SOTONYE DENTON-WEST, J.C.A. (Delivering the leading Judgment): This appeal stems from the judgment of Hon. Justice T. O. Osoba of the Ondo High Court of justice delivered on 15th of February, 2005. The Defendant being dissatisfied with the said judgment has appealed to this court.
From the records of this appeal, the Respondent as the Plaintiff at the trial court had commenced an action against the Appellant as the Defendant, by a writ of summons under undefended list dated 14th day of March, 2003 and filed on 30th October, 2003 but served by the order of the Court dated 10th February, 2003, the Plaintiff in the lower Court claimed against the Defendant the followings:
1. The Plaintiff’s claim against the Defendant is for sum of N705,898.85 being the balance as at September 2011 of loan/overdraft facility advanced by the Plaintiff to Defendant at the letters’ of request, which credit facility Defendant have refused to repay despite repeated demand.
The Plaintiff also claims interest in the said sum of N705,898.85 at the rate of 30% from September, 2001 till the date of judgment and thereafter at the rate of 10% until judgment debt is wholly and entirely liquidated.
The Defendant filed a notice of intention to defend the suit on 2nd day of April, 2003, after the argument of both counsel on 9th day of April, 2003 the Court ordered the suit to be transferred to the General Cause list and that the parties should file their pleadings.
The Plaintiff’s statement of claim dated 17th April, 2003 was filed the same day while the Defendant’s statement of defence dated 20th May, 2003 was filed on 21st day of May, 2003.
In the course of trial the Plaintiff sought to amend its statement of claim and this application was heard on 25th day of October, 2004 and granted the same date and after evidence of both parties and their addresses, the Trial Court delivered its Judgment on 15th day of February, 2005.
The Defendant being dissatisfied with the judgment of the Trial Court delivered on 15th February, 2005, filed a Notice and Grounds of Appeal dated 16th day of February, 2005 to this court.
The parties in this appeal filed and exchanged their respective briefs of argument. The Appellant in his brief of argument dated and filed on 15th January, 2013 submitted the following 4 issues for determination:
1. Whether the onus of proof of a loan of N500,000 purportedly granted by the Plaintiff to Defendant is one the Plaintiff and whether by the confirmation of the PW1 under cross examination that the said N500,000 of 23rd day of May, 2000 was a lodgment by the Defendant, is an admission.
Ground 1, 2 & 3.
2. Whether by virtue of Exhibit ‘A’ without an offer, acceptance and consideration can be said to exist between the Plaintiff and the Defendant as at 23rd day of May, 2000.
Ground 4.
3. Whether or not Exhibit ‘C’ is rightly admitted in evidence by the Trial court and whether the Trial court rightly raised the issue of overdrawing the Defendant account when no pleading, evidence was led to it. Ground 5 & 6.
4. Whether there were sufficient materials or legal basis in arriving at 3% interest rate where C.B.N. regulations on interest rate vary from time to time or from year to year.
Ground 7.
On his own part, the Respondent counsel in his brief of argument dated 31st December 2012 but filed on 4th January, 2013 raised and argued a preliminary objection on the competence of the Appellant’s ground vii of the Notice of Appeal and issue 4 formulated thereon, on the premise that the ground and issue were not controverted at the trial and proceedings of the lower court and since these were being raised for the first time on appeal, and without the leave of this court, thereby liable to be struck out. ANATOGU v. IWEKA II (1995) 8 (Pt. 415) p. 573 was referred to.
It was submitted that the Appellant by order of the court for amendment of its brief of argument, filed its amended brief of argument dated 14/6/2011 and granted on the 26th day of September, 2011 which argument was partly based on the 7 grounds of the notice of Appeal complained against the judgment of the Lower court.
It was argued the position of law is well settled that issue not raised or not contested at the trial before a lower court cannot be raised again on appeal except with the leave of court unless on jurisdictional issue and other exceptional circumstances. OSHO v. APE (1998) 60 LRCN 4077 @ 4095 DH-4096EF was referred to. That the Appellant having failed to raise an issue bordering on the propriety of the 30% interest charge on the overdraft facility granted the Appellant before the lower court cannot on appeal, make it an issue. BAMGBOYE v. UNILORIN (1000) 70 LRCN 2146 @ 2198BC was referred to.
Further, it was submitted that the Appellant has not sought for the leave of this Honourable court to raise the new issues, but even if he did, there is no exceptional circumstance envisaged by the law that would warrant the grant of such leave, having regard to the state of pleadings and principles guiding same, thereby making it incompetent and is liable to be dismissed. Referred was SANUMI v. MILITARY GOVERNOR, ONDO STATE (1998) 55 LRCN 2883 @ 28944 DG.
The learned counsel propounded that justice is not a game of hide and seek like chess game. A party must be consistent in its case and an appeal is a continuation of the case at the trial court as enunciated by EDOZIE, JSC (As he then was) in INTERNATIONAL MESSENGERS (NIG) LTD v. PEGDFOR INDUSTRIES LTD (2005) 127 LRCN 1134 @ 1150FK, see also ALHAJI SALAMI OLANIYI v. GBADAMOSI AROYEHUN & 7 ORS (1991) 4 LRCN 1271 @ 1317., ALHAJI JIDDUN v. ABBA ABUMA & 1 OR, (200) 81 LRCN 2992 @ 3012 C., ROCKONOH PROPERTY CO. v. INTEL (2001) 98 LRCN 2602 @ 2614C.It was submitted that the Appellant had all the time in the world right, from the time of receipt of the statement of account, letter of demand from the Respondent and throughout the tenure of the proceedings until the judgment was delivered to raise this issue but it failed to do despite having ample opportunities available to her. Submit further that a ground of appeal against a decision must relate to the decision and should be challenged to the validity of ratio of the decision. We refer the court to the case of A.G. OYO STATE v. FAIRLAKES (1988) 5 NWLR (PART 92) 1 per Muhammed, JCA. D 84.
Also it was argued that the issue of 30% interest rate claimed by the Respondent which claim was not rebutted by the Appellant at the trial, cannot by any stretch of imagination be considered to have adversely affected the judgment of the lower court which they have been admonished severally to guide jealously; referred was the case of NWOSU v. ENVIRONMENTAL SANITATION (1990) 2 NWLR pt. 135 p.715 PARA-E
Further that an appeal being a continuation of trial; it is therefore not an avenue for a party to set up a case different from the one at the trial court. We further commit to your Lordships consideration on this preposition of law to the case of: referred were AKUNEZIRI v. OKENWA (2000) 15 NWLR (Pt. 691) P. 526, OLUM OGBA & 2 ORS v. ONWUZO (2005) 131 LRCN 2448 @ 2462 AK.
This court was urged to strike out the ground 7 of appeal and discountenance the issue 4 and argument proffered there under. We further commend your lordships to the case of: INCAR v. BOLEX ENT. (2001) 87 LRCN 1933. @ 19484. See also the case of: ROCKONOH v. NITEL (2001) 89 LRCN 2602 @ 2614 C.
As a further preliminary point, the Respondent objected to the competence of the Appellant issue 3, which according to the learned counsel was not formulated from any of the ground 1-7 of the Appellant’s ground of appeal and same is liable to be struck out for want of competence.
It was submitted that the effect of issue not distilled from the ground of appeal is incompetent and must be discountenanced by the court together with argument advanced thereunder. Referred was OSENI v. BAJULU (2010) 4 WRN 1, @ 17 lines 30-45
It was further submitted that it is an elementary principle of law that any issue not inconsonance with ground of appeal will fail. Referred were NIGERIA CUSTOM SERVICE v. BAZUAYE 2006 3 NWLR (Pt. 967) 303 @ 321 AND AGBOR v. THE POLYTECHNIC, CALABAR 2010 9 WRN, 49 @ 62-63 lines 45-50.
It was contended that since the issue 3, did not cover by any of the grounds and is liable to be struck out for want of incompetence. See ALIBO v. OKUSIN 2010 28 WRN, 28 @ 59-60lines 40-50. It is a settled law that any issue not related to the ground of appeal is incompetent and is liable to be struck out. See GOODWILL CO. LTD v. CALABAR CEMENT CO. LTD (2010) 16 WRN, 108 @ 132 lines 25-35.
As a further preliminary objection on the said issue No. 3 of the Appellant brief, it contained sub-issue which according to the counsel for the Respondent is unknown to the Rule of this court i.e. order 18 by way of recapping, “Whether or not Exhibit C is rightly admitted in evidence by the trial court and whether the trial court rightly raised the issue of overdrawing the Defendant account when no pleading, evidence was led” and same ought to be struck out. He referred to the case of BELLO SALAMI & ANOR v. ALHAJI ADETORO LAWAL (2008) 161 LRCN 1 @ 25UEE.
Perusing through the briefs filed by the parties in this appeal, it can be discovered that the Appellant did not react to the preliminary objection. However I will proceed with the consideration of the preliminary objection to the competence of Ground VII and its issue 4 and Issue 3 as have been highlighted above for reasons stated in the resolution hereunder stated.
RESOLUTION OF THE PRELIMINARY OBJECTION Default on a party’s part to react to a preliminary objection does not ipso facto imply that the objection has to be sustained without more nor is the court precluded from considering the merit and demerit of the objection for overruling the purpose for it or sustaining it. See Olawuji v. Adeyemi (1990) 4 NWLR (Pt. 147) 746; Odunze v. Nwosu (2007) All FWLR (Pt. 379) 1295 @ 1314 Para F. Therefore, I take cover from the position of the law above stated.
Furthermore, by virtue of Order 3 rule 15(1) of the Court of Appeal Rules, a Respondent intending to rely on a preliminary objection to the hearing of an appeal shall give to the Appellant three days’ notice thereof before the hearing, setting out the grounds of objection, and shall file such notice with 20 (Twenty) copies thereof with the Registrar within the same time. See Ekocha v. Ariataraonyenwa (2009) All FWLR (Pt. 456) 1960 @ 1969 Paras
A notice of preliminary objection is an objection to the regularity of a court process. Its primary objective is to give notice to the opposing side of the case made, thus enabling each party to prepare for arguments upon the issues raised therein. This saves the opposing party from being taken unawares. A notice of preliminary objection to an appeal may be filed vide a motion on notice before the hearing date of the appeal to enable the counsel hear the arguments thereon. Nevertheless, a notice of preliminary objection may also be incorporated in a brief of argument, although it does not dispense with the need for the Respondent to move same at the oral hearing of the appeal. See: Okoi v. Ibiang (2002) 10 NWLR (Pt. 776) 455; Alhaji v. Maji (2002) 4 NWLR (Pt. 756) 46; Ekocha v. Ariataraonyenwa (Supra) 1960 @ 1968 paras G-A.
As I stated above, the notice of preliminary objection can be given in the Respondent’s brief, but a party filing it in the brief must ask the court for leave to move the notice of objection before the oral hearing of the appeal commences. Otherwise it will be deemed to have been waived and therefore abandoned. See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285, Agagu v. Mimiko (2009) ALL FWLR (Pt. 462) 1226 at 1157, paras G-H In view of the foregoing, this preliminary objection incorporated in the Respondent’s brief of argument dated 31st December, 2012 but filed on 4th January, 2013 which the leave of this court was neither sought nor obtained is deemed abandoned. This court will therefore shut its eyes against it. I will now proceed with the appeal.
The Respondent in their brief of argument dated 31st December, 2012 but filed on 4th January, 2013 formulated two (2) issues for determination as follows:
1. Whether the Defendant/Appellant was indebted to the plaintiff in the sum of N748,526.07 as at 30/11/2002 or not.
2. Whether the learned trial judge was right in awarding 30% interest claimed by the Respondent.
I have carefully considered the issues raised by the parties in this appeal and the issues distilled by the Appellant will be the focus of this court for being encompassing. Therefore, the issues for determination in this appeal are:
1. Whether the onus of proof of a loan of N500,000 purportedly granted by the Plaintiff to Defendant is one the Plaintiff and whether by the confirmation of the PW1 under cross examination that the said N500,000 of 23rd day of May, 2000 was a lodgment by the Defendant, is an admission.
2. Whether by virtue of Exhibit ‘A’ without more, an offer, acceptance and consideration can said to exist between the Plaintiff and the Defendant as at 23rd day of May, 2000.
3. Whether or not Exhibit ‘C’ is rightly admitted in evidence by the trial Court and whether the trial Court rightly raised the issue of overdrawing the Defendant account when no pleading, evidence was led to it.
4. Whether there were sufficient materials or legal basis in arriving at 30% interest rate where C.B.N. regulations on interest rate vary from time to time or from year to year.
ARGUMENT
ISSUE I & 2
1. Whether the onus of proof of a loan of N500,000 purportedly granted by the Plaintiff to Defendant is one the Plaintiff and whether by the confirmation of the PW1 under cross examination that the said N500,000 of 23rd day of May, 2000 was a lodgment by the Defendant, is an admission.
2. Whether by virtue of Exhibit ‘A’ without more, an offer, acceptance and consideration can said to exist between the Plaintiff and the Defendant as at 23rd day of May, 2000.
The above issues were argued jointly by the learned Appellant’s counsel, Pius Olu Daodu Esq. the basis of his submission was that the allegation of grant of loan facility of N500,000 by the Respondent at the trial court was not proved. Further that the trial court placed undue emphasis on Exhibit “A” which was a letter of request for the loan facility without a corresponding letter of offer from the Respondent with whatever terms and conditions.
It was also submitted that the Appellant had N500,000 in its account with the Respondent but needed an overdraft of N500,000 from the Respondent but was never granted by the Respondent to the Respondent. Also it was contended that the need to prove how the sum of N500,000 came to the account of the Appellant was not on the Appellant. That the admission and evidence of PW1 was enough for the trial court to hold that the sum of
N500,000 was the Appellant’s lodgment as at 23rd day of May, 2000.
It was argued that by Exhibit “B” there were transactions in between 23rd and 24th day of May, 2000 respectively which the Respondent did not alleged to be loan/overdraft facility granted. Further that the Appellant withdrew N250,000 and 130,000 which the Respondent did not allege to be loan/overdraft facility granted.
It was final contended that the trial court merely assumed that the sum of N500,000 standing in the credit of the Appellant on the 23rd day of May, 2000 may be loan and thereby came to a wrong decision.
On his own part, the learned counsel for the Respondent, M. A. Fadunmoye Esq. argued mainly that the Appellant was under a misconception of the law that the Respondent had the burden of proof that approval was given and that the formal ingredients of offer and acceptance must be proved to establish the indebtedness of the Appellant to the Respondent.
Moreso, it was submitted that by the pleadings and evidence of PW1 and PW2 at the trial lower court, there has been a long standing commercial relationship between the parties, hence the grant of the overdraft facility without more as approved by the Respondent’s management body vide Exhibit “F”.
It was submitted that there was overwhelming evidence before the lower court that having utilized the N500,000 overdraft facility granted to the Appellant between 23/5/2000 and 30/5/2000, the Appellant had withdrawn over and above the limit of the said overdraft facility. Pages 24 & 25 of the records of appeal were referred to.
It was further submitted that DW1 who was the accountant in the Appellant’s company was presumed to know the state of the account of the Appellant more than any other person in the company.
It was finally submitted that after application of the working capital of N500,000, the Appellant withdrew same and fully utilized it until it the above the approved limit of N500,000 as an overdraft and that Exhibit D-D3 show this and these Exhibits were not controverted. This court was urged to resolve this issue in favour of the Respondent.
RESOLUTION OF ISSUE 1 & 2
There is no doubt that in a banker/customer relationship, a customer when in short of cash and there is an urgent need to execute some transactions, can apply for a loan/overdraft facilities. The reason for this is not farfetched; nobody at all times has the money in all cases of one form of business transactions or the other. However, such banking transactions are strictly documented and the terms explicitly stated. In case of overdraft facility, there must be a letter of offer defining the terms, bonds and conditions of the facility granted i.e. interest rate, the duration of the facility, and security for the facility and there must be acceptance by the applicant of the terms and conditions of the offer.
See: Alhaji M. U. & Sons Ltd v. L.B.N. PLC (2006) 2 NWLR (Pt. 964) 288.

A contractual transaction of a banker/customer relationship is not distinct from the general contract governed by laws of contract among other regulations. There must be offer and acknowledgement of the acceptance of the terms specifically set out in the contract document for ease of reference. This is commonly because parties are bound by their agreement.
A party who enters into an agreement is clearly bound by the terms of the agreement and he cannot seek for better terms midstream or when the agreement is a subject of litigation, when things are no longer at ease. Although a party may seek for better terms, the court is bound by’ the original terms of the agreement and will interfere them only in the interest of justice. See: Idoniboye-Obu v. NNPC (2003) 4 MJSC 131 @ 168 para G. Sergius Onyekwelu. v. Ele Petroleum Nigeria Ltd (2009) All FWLR (Pt. 469) @ 438 paras D-E
An offer is an expression of willingness to contract on certain terms by a person to whom it is made with the intention that it shall become binding as soon as it is addressed. Once the offer is unconditionally accepted, a valid contract has come into existence. See: UNIC Ltd. v. FADCA Ind. (Nig.) Ltd (2000) 4 NWLR (Pt. 653) 4006 @ 417, INNIH v. FERADO Agro & Construction Ltd. (1990) 5 NWLR (Pt. 152) 604; SONA BREW PLC v. PETERS (2005) 1 NWLR (908) 478 @ 488, Pan African Bank Ltd. v. Ede (1998) 7 NWLR (Pt. 558) 442, Ezenwa v. Ekong (1999) 11 NWLR (Pt. 652) 55, FBN Plc v. Nodom-Egba (2006) ALL FWLR (Pt. 307) 1012 @ 1033 para D-E.In the instant appeal, paragraphs 4 and 24 of the amended statement of claim and evidence of PW1 at page 22 line 34 and evidence of PW2 at page 25 line 5 of the records of appeal show that the Respondent alleged that a loan of 500,000 was sought for , approved and granted to the Appellant.
It is our law that the burden lies on the person who alleges to prove and in the instant appeal, prove production of evidence to show the followings:
(a) Approval letter of the loan applied for by the Appellant.
(b) Letter of grant of the loan/overdraft facility or its equivalent stating the terms and conditions of the facility.
(c) Evidence that the Appellant received the loan/overdraft facility.Unless and until the above proofs are made, a court of law ought to hesitate to hold in favour of the Respondent as in this appeal. This because of the peculiar nature of bank transactions. The trial court with due respect, misapplied the facts when it held at pages 40-41 of the records of appeal that no explanation was given as to how the sum of 500,000 came to be in the Appellant’s account on the 23rd day of May, 2000. This because at page 24 line 1-6 of the records of appeal, PW1 admitted that a sum of 500,000 was lodged by the Appellant on the 23rd day of May, 2000.
The admission of PW1 confirmed the Appellant’s evidence at page 26 lines 1-6 of the records of appeal that a sum of 500,000 was in the Appellant’s credit but applied for further loan/overdraft of 500,000.
The trial court digressed from the evidence of both parties and came to a conclusion that the sum of 500,000 standing in the credit of the Appellant on 23rd day of May, 2000 was the loan/overdraft facility granted. That conclusion is to my mind an assumption against the principles of proof in our legal system. Moreover, by Exhibit ‘B’ there exist transactions between on 23rd and 24th day of May, 2000 respectively which the Respondent never alleged to be loan/overdraft granted.
Further down PW2’s evidence (a legal officer to the Respondent) at page 35 line 8-10 of the records of appeal confirmed clearly that where a loan is granted, the account of the customer will be credited and as he draws the account it will be debited accordingly.
In the same vein, the trial Court at page 42 line 5 -10 of the records of appeal, misapplied the Law in that, in giving meaning to Exhibit ‘F’ what the Court ought to consider is whether the contents of the minutes of the meeting which was a creation of the Respondent was communicated to the Appellant. This is because the facts of Exhibit ‘F’ were only within the knowledge of the Plaintiff and the Defendant has no notice of the approval of the contents of Exhibit ‘F’. The Appellant in line with its pleading at page 16 paragraph 4a, b page 17 paragraph 40 joined issues with the Respondent and the Appellant denied the loan of N500,000 and went further to state that it made deposit as it draws from its account.
The burden of proof that the sum of N500,000 in the credit side of Exhibit ‘B’ on 23rd day of May, 2000 was the loan/overdraft granted lies on the Respondent who will fail if no evidence was given to that effect. See S. 136 Evidence Act 2011. Issue 1 & 2 are hereby resolved in favour of the Appellant.
ISSUE 3
Whether or not Exhibit ‘C’ is rightly admitted in evidence by the trial Court and whether the trial Court rightly raised the issue of overdrawing the Defendant account when no pleading, evidence was led to it.
The Appellant’s counsel submitted basically on the above issue that Exhibit ‘C’ was a secondary evidence which required proper foundation before it can be tendered and admitted in evidence and that by not stating where the original was and that a notice to produce had been given, Exhibit ‘C’ was wrongly admitted. It was contended further that the Respondent’s counsel was not competent to give evidence and at the same time lead the Respondent in trial and that pleading cannot take the place of evidence as fact pleaded not lead in evidence goes to no issue and deemed abandoned. Page 23 line 16-24 of the record of appeal was referred to. Also referred were the cases of Edokpolo & Coy. Ltd. v. SEMEDO wire Ind. Amaro (1989) 4 NWLR (Pt. 116), Shell Petroleum Development Coy. v. Amro (2000) 10 NLR (Pt. 675) pg.248 at 256, Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) pg. 570 @ 572.
It was argued further that the trial Court placed reliance on the case of Alhaji Aminu Ishola v. Society General Bank Nig. Ltd in his Judgment and the case at page 42 line 18 of the record of appeal, A.C.B. Ltd v. Egunnike & Anor (1988) 4 NWLR (Pt.88) page 350 at 365, when it held that it is trite Law that “where a customer drawn from his account when he has no such money in his account such withdraw shall be constructed to be an overdraft.”
It was submitted that paragraphs 4, 5, 6 and 7 of the Plaintiff amended statement of claims and evidence of PW1 at page 22-23 of the record of Appeal showed the case put forward at the lower count.
By the holding of the lower court above, it was submitted the trial court raised issues that were not canvassed by the parties before it.
This court was urged to resolve this issue in favour of the Appellant.
On his part, the Respondent’s counsel reacted that Exhibit C was pleaded and tendered in evidence after proper foundation had been laid to the effect that the original copy of the said Exhibit ‘C’ was in the custody of the Appellant. Meanwhile, the trial court overruled the Appellant on the inadmissibility of the said exhibit according to the learned counsel.
It was finally submitted that the decision of the learned trial judge granting the claims of the Respondent against the Appellant was right in view of the evidence on the shortage of fund being expressed by the Appellant prior to 23/5/2000. Also that the purport and intention of Exhibit ‘A’ facts elicited from the Appellant’s Accountant i.e. DW1 under cross examination coupled with the utilization of the overdraft of 500,000 which facility was alleged to be drawn by the Appellant from 23/5/2000.
This court was urged to resolve this issue in favour of the Respondent.
RESOLUTION OF ISSUE 3
It is a settled law that the contents of a document can be proved in a proceeding by tendering the original document or where the original is unavailable by a certified true copy of the said original as the secondary evidence of the said original. See Goodwill & Trust Investment Ltd v. Witt & Bush Ltd (2011) 8 NWLR 500, Iteogu v. L.P.D.C (2009) 17 NWLR (Pt. 117) 614 S.C. Narindex Trust Ltd v. N.I.M.B Ltd (2001) 10 NWLR (Pt.721) pg. 321. Yassin v. Barclays Bank DCO (1998) 1 ALL NLR 171 @ 177, Oguma v. I.B.W.A (1998) 1 NWLR (Pt 73) 658, Anyaebosi v. R.T. Briscoe Ltd (1987) 3 NWLR (Pt. 59) 84, Akara v. Egbue (2003) 17 NWLR (Pt. 8451) 1, Section 971 of the Evidence Act.From the records of appeal (pages 17, 20, 23), there is no doubt that Exhibit C (letter of demand) is a secondary evidence: See: Section 87 of Evidence Act, 2011 which required proper foundation to be laid before it could be admitted in evidence. Both learned counsel from their respective submissions on this issue admitted that the said Exhibit C is a secondary evidence. This in essence relieves this court of the journey of legal exposition on the admissibility or otherwise of the said Exhibit C.
This issue is hereby resolve in favour of the Appellant.
ISSUE 4
Whether there were sufficient materials or legal basis in arriving at 30% interest rate where C.B.N regulations on interest rate vary from time to time or from year to year.
The learned counsel for the Appellant submitted on this issue that there was no basis for the trial lower court to grant the 30% interest on the alleged N500,000 overdraft facility. Also that interest rate is always in accordance with the Central Bank of Nigeria’s regulations which was pleaded by the Respondent and that all internal entries in terms of interest, commission on loan/overdraft and Bank draft and all internally generated vouchers are always in line with CBN regulations of which all the banks are in custody of.
The above position according to the learned counsel was confirmed by PW2 at page 25 lines 30-34 of the records of appeal.
It was finally submitted that by granting 30% interest rate without proof of it upon CBN regulations on interest rate, the trial court acted without legal basis or sufficient material evidence and therefore came to a wrong conclusion.
This court was urged to resolve this issue in favour of the Appellant.
The learned counsel for the Respondent submitted that the state of pleadings before the lower court does not admit the contention of the Appellant as no issue was joined by the parties on the interest charged on the Appellant’s indebtedness. Also that there was nowhere in all the averments in the Appellant’s statement of defence where the issues of interest was raised thereby affording no opportunity to the Respondent to respond to same. Also that the conduct of the Appellant in this regard had been held in several judicial authorities as springing a surprise on the opponent and a sharp practice which must of necessity be discouraged by the court by all standard. Referred to was Kwaptoe v. Tsenyll (1999) 4 NWLR (Pt. 600) p.571
It was also contended that aside from the springing of surprises, the Appellant was alleged of being caught up by the doctrine of acquiescence and estoppel by conduct having made no objection on the receipt of account and letter of demand wherein the principal debt and accrued interest were clearly stated.
It was finally submitted that from the available evidence on records there is no doubt that the findings of the trial court were in conformity with the case put forward by the parties having regards to the settled principles of law.
This court was urged to dismiss this appeal same being vexatious and an abuse of judicial process with substantial cost against the Appellant in favour of the Respondent.
RESOLUTION OF ISSUE 4
It is within a common knowledge that bank overdraft/loan facilities do not come free. While it is the business of the bank to get grant credit facilities to a customer, the customer is also bound to pay interest to the bank. See STB Ltd v. Inter Drill Nigeria Ltd (2007) All FWLR (Pt. 366) page 756 @ 761, U.B.N Ltd v. Salami 1998 3 NWLR (Pt. 543).

The law is trite that bank’s rate of interest is dependent on the agreement between the parties or established custom or consent of the customer. Also it is the duty of a banker claiming a particular rate of interest to prove it. See Alhaji Aminu Ishola (1997) 2 NWLR (Pt. 488) 405, Suberu v. A.I.S.L. Ltd (2007) 10 NWLR (Pt.1043).
Interests on bank loans/overdraft is not a taboo; nor out of place is a usual practice. Banks have been empowered to impose interests on loans/overdraft facilities.
By virtue of section 15 of the Banking Act Cap 28 Laws of the Federation 1990, the Central Bank of Nigeria is empowered to regulate and control banking activities in Nigeria. In the exercise of this power it is controls by law the interest rate chargeable by any bank and dictates the facilitation in the rate of interest. See Union Bank of Nigeria v. Albert Ozigi (1994) 3 SCNJ pg.42, U.B.N. v. Sax (Nig) 1994 8 NWLR (Pt. 361) Pg. 150, Union Bank of Nigeria Plc v. Alhaji Adams Ajabule & Anor (2011) LPELR 8239 (1994) 3 SCNJ Pg 42., U.B.N v. Sax (Nig) 1994 8 NWLR (Pt. 361) Pg. 150., Union Bank of Nigeria Plc v. Alhaji Adams Ajabule & Anor (2011) LPELR 8239
From the above, interest rates chargeable on loans vary depending on the economic and market conditions. The grant of 30% interest rate without proof of it upon the Central Bank of Nigeria regulations on interest rate or production of any document evidencing agreement to the contrary by the parties was a decision the trial lower court made without legal basis. The evidence that would entitle the Respondent to interest ought to be credible and not evidence that is hollow devoid of substance. See S.49(d) of the Evidence Act, U.B.A. v. Mudasiru Oladipupo Ademuyiwa (1999) 11 NWLR (Pt. 28) pg. 537 @ 573, Oyoubiare v. Omamurhomu (1999) 11 NWLR (Pt. 621) page 23 @ 24, U.B.A v. Gbadebo 2003 All FWLR (Pt. 86) Pg. 644 @ 646., Bank of the North Ltd v. Idirisu 2000 3 NWLR (Pt. 663) 9 U.B.A. v. Sax Ltd (supra) U.B.N. v. Ozigi (supra).
On the basis of the foregoing, this issue is hereby resolved in favour of the Appellant.
On the whole, this appeal succeeds in its entirety. The judgment of the lower court delivered on the 15th February, 2005 is hereby upturned with the orders made therein. No order as to cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment just delivered by my learned brother Sotonye Denton West JCA. I agree with the conclusion therein, the appeal succeed. I make no order as to cost.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother DENTON-WEST, JCA and I agree with the reasoning and conclusion reached therein by him.
An appeal to my mind is likened to the taking of a second look at what transpired at the trial court. To this end, there should be minimal distortion and contortion of the facts as presented at the trial court. Where it becomes inevitable to raise a new or intervening issue on appeal, the leave of the court ought to be sought and obtained. See Ukarimo Obasi & Anor. v. Eke Onwuka & 5 Ors. (1987) 3 NWLR (Pt. 61) 364, 370; and Abana v. Obi (2004) 9 NWLR (Pt. 877) 1.The respondent by way of preliminary objection in his brief argued that ground vii of the Notice of Appeal and issue four formulated thereon were not controverted at the trial and proceedings of the lower court and since they were being raised for the first time on appeal and without the leave of this court, they are thereby liable to be struck out. referred.Anatogu v. Iweka 11 (1995) 8 NWLR (Pt. 415) 573
Now grounds of appeal and issues formulated thereon are by natural and procedural sequence meant for contention at the appeal level. This is because they are meant to be an attack on the issues raised and canvassed at the trial court. Thus, any issue of competence or incompetence against any Ground(s) of Appeal and any issue arising therefrom ordinarily ought to be raised for the first time on appeal and therefore needs no leave of the court to canvass same.
Again by the rules of this court for the respondent to raise a preliminary objection to the hearing of an appeal, he shall give to the appellant some three clear days notice before the hearing. On the other part the respondent can incorporate the objection in his brief of argument provided that at the hearing of the appeal, he orally obtains leave of the court to move same before the adoption of the briefs of argument. See the decision of this court in Iroegbu v. Mpama & Ors. (2009) LPELR-8510 (CA). Since, it is evident that the respondent neither complied with the provisions of Order 10 Rule 1 of the Court of Appeal Rules, 2011 nor did he, having incorporated his objection in the brief of argument obtain the believe of court to move it before the adoption of the said brief of argument, he cannot be seen to be serious with the objection. Indeed this court is by the respondent’s omission denied the leverage to delve into the preliminary objection as raised. The said preliminary objection is accordingly discountenanced leaving the court to deal with the merit or otherwise of the appeal.
With this brief contribution of mine and more importantly the comprehensive reasonings and conclusions reached herein by my learned brother, I also adopt same as mine and allow the appeal in its entirety. I abide by the orders as to costs.

Appearances

Pius Olu Daodu Esq.For Appellant

AND

M. A. Fadunmoye Esq.For Respondent