S.I. IFABIYI & CO. (NIG) LTD v. UNITY BANK (2020)

S.I. IFABIYI & CO. (NIG) LTD v. UNITY BANK

(2020)LCN/15237(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, April 27, 2020

CA/A/573/2014

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

I. IFABIYI & CO. NIG. LTD APPELANT(S)

And

UNITY BANK PLC RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEALLNAT WHO WANTS THE APPELLATE OCURT TO SET ASIDE FINDINGS AND CONCLUSION OF THE LOWER COURT MUST DEMONSTRATE THAT THE FAILURE ON THE PART OF THE TRIAL COURT OCCASIONED A MISCARRIAGE OF JUSTICE

The law is trite that an Appellant who wants the Appellate Court to set aside the findings and conclusion of a Lower Court or Tribunal must establish that the Court or Tribunal was influenced by extraneous facts and that the said Court or Tribunal made improper use of the opportunity of its having seen and heard the witnesses testified before it. It must be proved that the Learned Trial Judge or Tribunal did not properly appraise the oral and documentary evidence placed before it. The Appellant must demonstrate that the failure on the part of the Trial Court or Tribunal actually occasioned a miscarriage of justice. See:-
1. CHIEF ALEX OLUSOLA OKE ANOR. VS. DR. R. O. MIMIKO & ORS. (2014) 1 NWLR (PART 1388) 332 at 397 G – H.
2. CHIEF O. B. AJIBULU VS. MAJOR GENERAL O. O. AJAYI (RTD) (2014) 2 NWLR (PT. 1392) 483 AT 502 D-H to 503 A. per OGUNBIYI, JSC who said:
“The law is well established, that under our adversarial system of jurisprudence, civil cases are decided on preponderance of evidence. See Mogaji v. Odofin (1978) 3-4 SC 91. In summary, before the trial Court accepts or rejects the evidence of either side, it is expected of the Judge to construct in imaginary scale of justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt: the determination which is not dependent upon number of witnesses called. It is rather the credibility that gives probative value to witnesses.
In the evaluation of evidence therefore, the central focus expected of a Trial Court is whether it made proper findings upon the facts placed before it. In other words, as long as a Trial Court Judge does not arrive at his Judgment simply by considering the case of one party and not the other but properly evaluate both sides, the decision will not be set aside merely because he adopts a method which is novel to the usual system. The measuring yardstick is the consideration of the totality of the entire care thus arriving at the just determination of the issues in controversy. The test is that of the perception by an ordinary reasonable man. See Woluchem v. Gudi (1981) 5 SC p. 291.
The Trial Court has the benefit of hearing and assessing the demeanour of witnesses. It is not within the powers of the Appellate Court to encroach upon that privilege by way of interfering with the Trial Judge’s findings unless they are shown to the perverse, unsupported by evidence or based on evidence not legally admissible.” PER IGE, J.C.A.

DEFINITION OF “BIAS”

In Black’s Dictionary 10th Edition, page 102 “Bias” is described or defined as:
“A mental inclination or tendency; prejudice prediction.”
See also:
1.SUNKANMI ADEBESIN V. THE STATE (2014) 12 SCM (PT. 2) 1 AT 17 H – 18 A per NGWUTA, JSC who said:
“Bias can be of three categories:
(1) Pecuniary bias as exhibited by a member of the Tribunal or Court having a pecuniary interest in the subject matter of the dispute.
(2) Personal bias – existence of close relationship between a member of the Tribunal or Court and one of the parties to the dispute, and
(1) Official bias – an abnormal desire or inclination to pursue a predetermined line of action which would prevent an impartial adjudication of the dispute between the parties. See Venkatuchalam Iyer v. The State of Madras AIR 195.7 Mad. 623, 626. Appellant’s case falls within the third category of bias, there being no evidence that any of the Justices had pecuniary interest in the matter or related to any of the parties.”
2. RAFIU WOMILOJU & ORS V. ANIBIRE & ORS (2010) 7 SCM 217 AT 228 I – TO 229 A – D per I.T MUHAMMAD, JSC who said
“‘Blas’, generally, is that instinct which causes the mind to incline toward a particular object or course. When a judge appears to give more favour on consideration to one of the parties before him, either in his utterances, attention or actions, which is capable of perverting the cause of Justice, or where fair hearing cannot be said to take place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a judicial bias. But where a trial has been conducted in which the authority of the Court has fairly been exercised in consistence with the fundamental principles of justice embraced within the conception of the process of law, then there is said to be a fair hearing. This contemplates of allowing the parties equal opportunity to present evidence; to Cross-examine witnesses and for the trial Court to make findings which are supported by evidence. See: Omoniyi v. General Schools Board, Akure & Ors (1989) 4 NWLR (Pt. 89) 449 at page 463; Elike v. Nwakwoala & Ors(1984) 12 SC 301 at 341: Ariori v. Elemo (1983) 1 SC 13 at 81; Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407 at 433. PER IGE, J.C.A.

FAILURE TO CROSS-EXAMINE A WITNESS

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal Capital Territory High Court delivered on 8th day of July, 2013 by Honourable Justice M. E. ANENIH.

The Appellant as the Plaintiff has by its Amended Writ of Summons claimed against the Respondent as Defendant as follows:-
1. The refund of N2,347,503.70 the cash book balance of the plaintiff’s account as at 30th June, 1999.
2. The refund of the sum of N47,881,329.15 represent loan overpayment and all unauthorized withdrawals from the plaintiffs account.
3. Interest of 25% per annum on the Judgment sum from the 27th day of November 2003 when the account was classified until judgment and thereafter at the same rate until judgment debt is liquidated.
4. A declaration that the plaintiff has fully repaid the loan of N30,000,000 million she took together with N29,455,028.00.
5. The return of all the plaintiffs’ title documents over 845 Yedsaram Street, Maitama, the premises of Salem Guest Inn and all other documents of the title the plaintiffs Chairman Chief S. A. Ifabiyi deposited with the defendant vide a Deed of Release as the loans have been fully paid.”

The reliefs are also contained in paragraph 33 of the Amended Statement of Claim filed by the Appellant. The Amended Statement of Claim was accompanied by Witness Statement on Oath of PW1.

The Respondent had on 8th April, 2009 filed Statement of Defence to the Original Statement of Claim.

In the Original Statement of Claim paragraph 4 thereof the Appellant claimed against the Respondent as follows:-
“14 WHEREOF the Plaintiff claims against the Defendant: –
(a) A declaration that the Defendant has overcharged the Plaintiff’s interest in the sum of N20,617,551.06.
(b) A declaration that the Defendant has made ten unauthorized deductions from the Plaintiffs accounts totaling N1,489,301.81.
(c) A declaration that the Defendant had on the 4th of September 2007 granted the Plaintiff on interest waiver of 50%.
(d) A declaration that its total outstanding indebtedness in interest to the Defendant is N25,690,640.28.
(e) A declaration that the Defendant has been totally lacking in fidelity, integrity, goodwill, equity and good conscience in its dealings with the Plaintiff.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(f) An order of perpetual injunction restraining the Defendant from foreclosing the mortgage and in anyway putting up its Salem Guest Inn at 845 Yedsaram Street, Maitama, Abuja up for sale.
(g) An order of installmental payment of the N25,690,640.28 interest at the rate of N1,000,000.00 per month with the interest is liquidated.
(h) An order of perpetual injunction restraining the Defendant from charging the Plaintiff further interest on the outstanding interest until the outstanding debt is liquidated.
(i) An order directing the Defendant to surrender to the Plaintiff its title documents to Plot 845 Yedsaram Street, Maitama, Abuja upon the liquidation of the N25,690,640.28 interest.”

The Respondent maintained its Defence filed on 9th April, 2009 and did not make any consequential amendment to the Amended Statement of Claim aforementioned.

The matter proceeded to trial at the end of which the learned trial Judge gave a considered judgment on 8th July, 2013 as earlier stated and found against the Appellant as follows:-
“The plaintiff’s PW1 under cross-examination admitted that there existed two different loans. And that the pattern of repayment of the two different loans was different in each case. And that at the time of the second loan of N20,000,000.00 the first loan of N10,000,000.00 had not been completedly paid.
Exhibit J and Exhibit A both refer to various loans and outstanding debt and one of which was referred to as a short term loan by the PW1.
What is the basis of the advice of PW1 in Exhibit D at page 3 to the Plaintiff to request for a refund of N47,881,329.15? This is not quite clear from a refund of consideration of Exhibits B, D, E, F, G, H, J, K, L.
A close scrutiny of the Report from the Referee (Central Bank of Nigeria) on the state of plaintiff’s account further highlights this ambiguity of indebtedness by either party to the other.
Under cross-examination the PW1 stated that as at … December 2007 the total debt had been fully liquidated and total of N52,507,779.03 had been paid into the credit of the plaintiff. And that it was the amount paid in by plaintiff over time that accumulated to the said amount.
The PW1 in his evidence had stated the following:
“the loan account referred to was not made available to us and we do not have the knowledge of the content of the loan account referred to… the Bank would on its own open another account for the administration of the loan by the Bank… At the time of the 2nd loan of N20,000,000.00, the first one of N10,000,000.00 was not completely paid. This pattern of repayment referred to above was not applicable to the 2nd loan.
If this is the case then why did the PW1 conclude in Exhibit D that the Plaintiff request for a refund of N47,881,329.15 when the said exhibit B according to him was based on the loan of N20,000,000.00 and Exhibit B shows the existence of other loan facilities including that of N10,000,000.00. The evidence before the Court therefore doesn’t sufficiently justify the relief for the claims made by plaintiff.
It has also become imperative to comment at this stage on the issue of the none production of the complete statement of account. The plaintiff in his written address submitted that the impoet of this should be resolved in favour of the plaintiff. That the account had a pre- 30th June 1999 credit balance of N2,347,501.07.
My view on the above is that even if the said Issue was resolved in favour of the plaintiff, it would still have no effect whatsoever on the fact that the plaintiff has failed to prove his prayers that he is entitled to be paid the amount claimed. This is inspite of the various loan facilities referred to in evidence that the plaintiff has not successfully shown defrayment thereof.
Suffice to say that this Court cannot go beyond the limits of the evidence and facts placed before it in respect of this case.
It follows therefore that the plaintiff has not discharged the burden of proof placed upon him by law in proof of his case. Consequently, the entire claims of the plaintiff fails and are hereby accordingly dismissed.”

The Appellant was dissatisfied and has by its NOTICE OF APPEAL dated and filed 15th July, 2013 appealed to this Court on two grounds which with their particulars are as follows:.
“2. PART OF THE DECISION COMPLAINED OF:
The whole decision.
3. GROUND OF APPEAL
GROUND 1
The learned trial Judge erred in law when he held that the Appellant did not prove his claims before the Court to merit the reliefs claimed in the suit.
PARTICULARS
1. The learned trial Judge refused to accept the time honoured principle of evidence that a fact admitted by a Defendant needs no further proof.
2. The learned trial Judge refused to accept the rule established by a long line of Supreme Court authorities that where a Respondent fails to file a consequential amendments to its statement of defence after the amendment of statement of claim, it has admitted the facts contained in the amended statement of claim.
3. The learned trial Judge rejected the time honoured principle of stare decicis by refusing to follow the decisions of Courts superior to his own Court.
4. The learned trial Judge gave no reason for disbelieving the evidence of PW1 which Is only on analysis of the Appellants statement of account reluctantly supplied by the Respondent.
GROUND 2
The learned trial Judge was openly biased against the Appellant and therefore denied him fair hearing.
PARTICULARS
1. Despite the Respondents choice not to defend the suit, the learned trial Judge constituted himself into a defence Counsel and sought to discredit the Appellant’s case before her.
2. In his effort to make a case for the defence, the Learned trial Judge decided to write the Central Bank of Nigeria to write a report or an analysis on the Appellant’s statement of account with the Respondent to counter PW1‘s evidence.
3. In his further effort to make a case for the defence, the learned trial Judge received a report from Central Bank of Nigeria but because the report did not meet her pre-determined position, she caused another letter to be written to the Central Bank of Nigeria to change or reconfigure its report.
4. The learned trial Judge failed to send a copy of the report from the Central Bank of Nigeria to the Appellant and invite his comments on it contrary to the Rules of Court.
5. In his effort to still help the Respondent, the learned trial Judge adjourned his judgment again and again waiting for the second report from the Central Bank of Nigeria which never came for 15 months until the Appellant had to write him on the 14th of March, 2013.
6. The learned trial Judge refused to consider the argument of the Appellant concerning the Respondent that since it is a Bank, it has charted accountants and financial analysts in its employment who could have countered PW1’s report on the Appellants statement of account.
7. The learned trial Judge refused to be surprised or bothered by the Respondent’s failure to file a consequential amended statement of defence or to counter PW1’s analysis of the Appellant’s Account.
8. The learned trial Judge was clearly out to defend the Respondent’s theft of the sum of 50,228,830.85 from the Appellant’s account.
9. The learned trial Judge made arguments for the Respondent which it did not make for Itself and thereby descended into the arena.
4. RELIEFS SOUGHT
That the Judgment of the High Court Abuja dated the 8th day July 2013 dismissing the Appellant’s suit be set aside and the claims of the Appellant in his statement of claim be granted him.”

The Appellant’s Brief of Argument was dated and filed on 9th March 2016 while the Respondent’s Brief of Argument was dated 19th October 2016 and filed on 20th October 2016. The Respondent’s Brief of Argument was deemed properly filed on 4th February. 2019.
The Respondent raised Preliminary Objection in its Brief and argued same.

When the appeal came up for hearing on 5th February, 2020 the learned Counsel to the Respondent withdrew the objection and same was struck out. The Appellant Reply Brief in answer to the Preliminary Objection was also consequentially struck out and the appeal was duly argued.

The Appellant’s learned Counsel ISAAC OKPANACHI, ESQ distilled two issues for determination viz:-
“1. Whether it is no longer the position of the law that a defendant who knowingly and consciously refuses to answer the allegation of facts in an amended Statement of Claim has admitted those facts.
2. Whether the learned trial Judge was not grossly biased against the Appellant when he dismissed his claims when his Statement of Claim was not countered nor his evidence challenged or contradicted in the least.”

The Respondent’s learned Counsel also formulated two issues as follows:-
1. Whether non filing of consequential statement of defence amount to admission of facts in an amended statement of claim on the part of the defendant where all the issues are already responded to in the statement of defence already filed.
2. Whether or not the learned trial judge was grossly biased when he dismissed the plaintiff’s claims on the face of a valid credible defence and failure to discharge burden of proof placed upon him by law.”

The issues formulated by the Appellant will be enlisted to determine the appeal and the two issues will be taken together:-
“1. Whether it is no longer the position of the law that a defendant who knowingly and consciously refuses to answer the allegation of facts in an amended Statement of Claim has admitted those facts.
2. Whether the learned trial Judge was not grossly biased against the Appellant when he dismissed his claims when his Statement of Claim was not countered nor his evidence challenged or contradicted in the least.”

The learned Counsel to the Appellant stated that when the Respondent served the Appellant of its Statement of Account upon the Notice to Produce on the Order of Court made in that behalf, the Appellant engaged an Accountant to analyse the Statement of Account and to make a Report. That consequent upon the report the Appellant amended its claims alleging that the Respondent has removed a total of N50,228,830.85 from Appellant’s Account. That the Appellant discovered it has repaid the Respondent on its loan account by N29 Million.

On the effect of failure of a Defendant to file an Amended Statement of Defence to Amended Statement of Claim, he relied on the case of:
1. MOBIL NIGERIAL PLC V. IAL 36 INC (2000) 6 NWLR (PT. 659) 146 AT 163 F – G per AYOOLA, JSC and page 171F per KARIBI-WHYTE, JSC.

The learned Counsel submitted that failure to file an Amended Statement of Defence clearly means an admission and facts admitted need no further proof. That a Court of law will proceed to grant reliefs sought by the Plaintiff relying on the case of SALAWU V. YUSUF (2007) 31 NSCQR per NIKI TOBI, JSC.

He stated that the cases were cited to the lower Court but it chose to refuse to be bound by the authorities of Supreme Court in breach of the Rule of stare decisis. That the Defence refused to file a final address yet the lower Court decided against Appellant. He urged the Court to set aside the decision.

On issue 2, the learned Counsel to the Appellant submitted that the first proof of bias is that the Court rejected the position of the law that state of pleadings settles matter before a trial Court and the failure to hold the position amounts to bias.

The 2nd proof according to him is the failure of the Respondent to contradict or oppose the Appellant’s Amended Claims and yet the trial Court according to Appellant’s Counsel provided a defence for the Respondent in the face of Exhibit B and D tendered by Appellant.

The third element of bias against the trial Judge was that he decided to send Exhibits B and D to Central Bank of Nigeria for analysis on the account and PW1’s report. That the Respondent never mentioned to the lower Court that it did not understand Exhibit C, and no one urged the trial Court to do what it did.

The fourth reason of alluding bias to the trial Judge was that the trial Court sent the documents to CBN for analysis and Report pursuant to Order 18 Rule 1 of High Court of Federal Capital (Civil Procedure Rules) 2004 which envisages the parties may be part of the enquiry. Appellant’s learned Counsel said he knew and heard nothing of any enquiry. That Order 18 Rule 7 made it mandatory for parties to see Report from CBN but it was not shown to Appellant who only become aware of it in the course of judgment.

That the fifth proof of bias is page 254 of the record where the CBN report was quoted which report he said indicted the Respondent but that the Court did nothing to the Respondent. He further relied on page 255 of the record.

The sixth proof of bias according to learned Counsel to the Appellant is paragraph 2 page 253 of the record which made findings against the PW1’s evidence which learned Counsel to Appellant saw as the confusion of the trial Judge. That if a trial Judge was truly confused he ought to have invoked Section 146(1) of the Evidence Act to clarify any ambiguity or doubts in the witness evidence.

That the trial Judge deliberately did not invoke Section 246(1) of Evidence Act because of his bias against the Appellant and desire of the trial Judge to deny Appellant fair hearing. That contrary to the position of the Judge the evidence of PW1 on repayment of the loan was dear and not confusing he relied on pages 234 – 236 of the record.
That the finding of the trial Judge on page 252 is perverse.

The seventh point of bias according to Appellant’s learned Counsel is that the trial Judge did not utilise the witness Statement on Oath adopted by the PW1 as it was not reflected in the judgment according to Appellant’s Counsel.

The eighth element of bias against the trial Judge according to Appellant is finding on page 252 stating that DW1 said that the sum of N52,507,779.03 was transferred to loans account. That there was no such thing in DW1’s Witness Statement on Oath contained on pages 24 – 26 of the record.

The ninth point raised as bias against the Judge by the Appellant is the finding of trial on page 257 of the record. That it is untrue to say any opposing evidence disproved PW1’s evidence. That there was no such evidence.

That if the Judge was not biased, why was he not surprised that the Respondent did not address the Court. That it is a case of bias. The case of OBIGBU V A.G. FEDERATION (2014) 5 NWLR (PART 1399) 171 AT 207 G – H was cited. That Respondent has opportunity to challenge Appellants case but never did.

On what judicial bias means, he said the Court would be guided by the circumstances from which a reasonable man would think it likely or probable that the Judge would or did or favour one side unfairly at the expense of the other. He relied on the case of BABARINDE VS STATE (2014) 3 NWLR (PT. 1395) 568 AT 585 H – C.

Appellant also submitted that the trial Judge also denied Appellant fair hearing and this defeated the cause of justice in his judgment. He relied on the case of SAMBA PETROLEUM LTD & ANOR VS UBA & ORS (2010) 43 NSCQR 119 AT 137. He urged the Court to allow the appeal.

In response to the submissions of the Appellant under issue 1, the learned Counsel to the Respondent, BULUS SOLOMON, ESQ referred the Court to the Statement of Defence of the Respondent contained on pages 27 – 30 of the record and DW1’s Witness Statement on Oath on pages 24 – 26 of the record of appeal. That there is also an Additional Witness Statement Oath which learned Counsel to the Respondent stated was adopted on page 184 of the record. He therefore submitted that valid Defence was filed before the trial Court.

On whether failure to file Consequential Amended Statement of Defence upon the Amended Statement of Claim by the Appellant amounted to an admission of the claims of the Appellant, the learned Counsel to the Respondent stated that the Appellant’s Submission is misconceived as it misapprehends the position of the law. That there is no such law as a Defendant has right to choose whether to amend his Defence or not in such circumstances and that in its law is not an admission. He relied the case of JOHN HOLT PLC V. ALLEN (2014) 27 NWLR (PT. 1437) PAGE 45.

That the Defendant’s Original Statement of Defence is on pages 184 – 186 and that the Defendant’s sole Defence Witness MR. BELLO MANZO adopted his Witness Statement on Oath and on Exhibits tendered.

That the Appellant at page 186 of the record declined to cross-examine the Respondent’s Witness after which the lower Court ordered parties to file Written Addresses. That the allegation of Appellant to the effect that the Respondent had no Statement of Defence is calculated to mislead this Court. That Respondent also filed final address in the matter.

That failure of the Appellant to cross-examine DW1 amounts to an admission of the evidence of the Respondent at the trial. He relied on the case of AMADI VS NWOSU (1992) 5 NWLR (PT. 241) 273 AT 284 in urging this Court to hold that where a Plaintiff amend its Statement of Claim before the Court, it is not mandatory for a defendant who has credible defence before the Court to file Consequential Amended Statement of Defence and it does not amount to an admission of the Plaintiff’s Claims in that the Original Statement of Defence remains extant.

On the nine point’s allegation of bias raised and argued against the trial Judge, the Respondent’s learned Counsel dealt with each of the points.

On the first point that the trial Judge was wrong to have inquired into the Respondent’s case having failed to file Amended Statement of Defence, the learned Counsel to the Respondent relied on his submission under issue 1. On the second allegation of bias to the effect that Respondent did not call ICAN or ANAN qualified Accountant to counter of refute what PW1 wrote in Exhibit D or schedule attached to it: the Respondents learned Counsel stated that there is no such law or burden on Respondent. And that the said evidence of PW1 was effectively challenged under cross examination of PW1. He relied on pages 178 – 182 of the record. He also submitted that a Court is not bound to accept testimony of PW1 as sacrosanct or final as argued by the Appellant. He relied on the case of AKEREDOLU VS MIMIKO (2014)1 NWLR (PT. 1388) 402 AT 439 440 H- A.

He further submitted that besides there are other pieces of credible evidence before the Court showing that evidence of PW1 is not true and was rightly rejected. He relied on AG OYO STATE V FAIR LAKES HOTEL (1989) 5 NWLR 255 AT 291 – 292 and ELF NIGERIA LTD VS SILLO (1994) 7-8 SCNJ 119 AT 133.

On the 3rd allegation that trial Court sent Exhibits B and D to CBN for analysis and report he referred to page 194 of the record, proceedings of 13-3-2012 where the trial Judge gave his reason for his action and he relied on page 195 of the referral order.

He submitted that the lower Court was right because issues that concerns Bank Charges and approved interest chargeable in respect of loan is regulated by Central Bank of Nigeria under CBN Act.

On invocation of Order 18 Rule 1 of High Court of Federal Capital (Civil Procedure) Rules 2004, learned Counsel to the Respondent justifies the action of trial Court in sending the Exhibits to CBN in order to ascertain the extent of Appellants indebtedness or otherwise of the parties. That pursuant to Order 46 Rule 1 of the said Court the trial Court acted in the interest of justice.

On the fourth complaint of bias to the effect that trial Court did not give Appellant the report from the referee so Appellant could comment on it, Respondent learned Counsel relied on ORDER 18 RULE 7 of the lower Court’s Rules to submit that at the point of return of report the matter was already concluded except the lower Court called for comment the parties has no further say. That the Appellant misconstrued the Rules. That the Rule only gives the Court discretion as to whether the parties should attend upon the referee during enquiry. That in any event the Order was made after adoption of Written Addresses by the parties.

On the fifth complaint as to whether the report from CBN was kept secret and that Court also failed to compel the Respondent to supply CBN with certain documents which were said to have been transferred to AMCON, it was submitted that the Court was only to notify the parties on receipt of the report from referee per Order 18 Rule 7. That Respondent was also not given a copy.

That the complaint could be excused because of change to e-Banking He referred to the page 255 where the lower Court explained the position. That the Appellant cannot dictate to the Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the sixth complaint that the lower Court failed to utilise Section 246(1) of the Evidence Act which Appellant claimed led to denial of fair hearing, Respondent’s learned Counsel submitted that activation of Section 246(1) of Evidence Act is at the discretion of the Court. That Appellant cannot control the discretional powers of lower Court.

He further reiterated that both sides called evidence but Appellant did not cross examine the Respondent’s witness and thus admitted the case of Respondent. He relied on the case of EMIRATES AIRLINE VS NGONADI (2014) 9 NWLR (PART 1413) 506 AT 534 C – D. He also stated that Appellant did not object to documents tendered by the Respondent and that Appellant was given ample opportunity to present its case. That it is unfair to now accuse the trial Judge of bias. He relied on the cases of STATOIL (NIG) LTD VS INDUCON (NIG) LTD (2014) 9 NWLR (PT. 1411) 43 AT 80 B – E and STABILINI VISION LTD VS MALIINSON & PARTNERS LTD (2014) 12 NWLR (PART 1420) 134 AT 205 E – G.
That Appellant denied fair hearing.

On the seventh complaint that the learned trial Judge did not make use of PW1’s evidence, the Respondent submitted that the contention of Appellant is false in that PW1’s evidence was quoted on pages 232 – 236 of the record of proceeding under cross examination and re-examination in the judgment. That Appellant is not to direct how a Judge should write his judgment. He relied on the case of OGBA V ONWUZO (2005) 11 NWLR (PT. 945) 371 SC. That failure to quote or copy evidence of witness does not amount to failure to consider evidence of a witness. He relied on the cases of KAGEBU CO (NIG) LTD VS UNITY BANK PLC (2014) 7 NWLR (PART 1405) 42 AT 72 C – E and OMEGA BANK (NIG) PLC VS O.B.C. LTD (2002) 16 NWLR (PT 794) 483 AT 522.

On the eighth complaint of bias leveled against the trial Judge to the effect that the trial Judge manufactured evidence against the Appellant on page 252 of the record. He stated that the evidence actually exist in the record. He drew attention of the Court to page 180 paragraph 5 of the record and that it is the evidence of Appellants Witness under examination which he said is in favour of Respondent’s case.

On the ninth complaint to the effect that the trial Court held that PW1’s evidence was unreliable when there was no defence to Appellants case, he stated that Respondent filed Statement of Defence. DW1 adopted his Witness Statement on Oath. That Respondent filed final Written Address on pages 201 – 210 of the record. That Address of Respondent was referred to on pages 241 – 245 of the record just as it did to the Appellant on pages 237- 240 of the record of appeal.

That the burden is on the Appellant pursuant to Sections 132 and 133(1) of the Evidence Act to prove its case. He relied on the case of OKOYE V NWANKWO (2014) 15 NWLR (PART 1429) 122-123 and 132. That Appellant must rely on the strength of his own case and not on the weakness of Defence. That the Defence of Respondent was not challenged.

The Respondent’s learned Counsel submitted that on allegation of bias is grossly unfounded and designed to cast aspersion against the trial Judge. That the allegation of bios must be supported by cogent facts but in this case there are mere allegations. He relied on the case of IKUMONIHAN V STATE (2014) 2 NWLR (PT. 1392) 564 AT 593 – 594H – A per KEKERE-EKUN, JCA now JSC.

He submitted that all allegations of bias are without hard and concrete facts or evidence to support them. He relied on the case ofOMEGA BANK PLC VS O.B.C. LTD (2002) 16 NWLR (PT. 794) C483 AT 518 E-G.

He urged the Court to reject the Appellant’s allegations and submissions. He finally urged the Court to dismiss the appeal and affirm the judgment of the lower Court.

RESOLUTION OF THE ISSUES
The law is trite that an Appellant who wants the Appellate Court to set aside the findings and conclusion of a Lower Court or Tribunal must establish that the Court or Tribunal was influenced by extraneous facts and that the said Court or Tribunal made improper use of the opportunity of its having seen and heard the witnesses testified before it. It must be proved that the Learned Trial Judge or Tribunal did not properly appraise the oral and documentary evidence placed before it. The Appellant must demonstrate that the failure on the part of the Trial Court or Tribunal actually occasioned a miscarriage of justice. See:-
1. CHIEF ALEX OLUSOLA OKE ANOR. VS. DR. R. O. MIMIKO & ORS. (2014) 1 NWLR (PART 1388) 332 at 397 G – H.
2. CHIEF O. B. AJIBULU VS. MAJOR GENERAL O. O. AJAYI (RTD) (2014) 2 NWLR (PT. 1392) 483 AT 502 D-H to 503 A. per OGUNBIYI, JSC who said:
“The law is well established, that under our adversarial system of jurisprudence, civil cases are decided on preponderance of evidence. See Mogaji v. Odofin (1978) 3-4 SC 91. In summary, before the trial Court accepts or rejects the evidence of either side, it is expected of the Judge to construct in imaginary scale of justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt: the determination which is not dependent upon number of witnesses called. It is rather the credibility that gives probative value to witnesses.
In the evaluation of evidence therefore, the central focus expected of a Trial Court is whether it made proper findings upon the facts placed before it. In other words, as long as a Trial Court Judge does not arrive at his Judgment simply by considering the case of one party and not the other but properly evaluate both sides, the decision will not be set aside merely because he adopts a method which is novel to the usual system. The measuring yardstick is the consideration of the totality of the entire care thus arriving at the just determination of the issues in controversy. The test is that of the perception by an ordinary reasonable man. See Woluchem v. Gudi (1981) 5 SC p. 291.
The Trial Court has the benefit of hearing and assessing the demeanour of witnesses. It is not within the powers of the Appellate Court to encroach upon that privilege by way of interfering with the Trial Judge’s findings unless they are shown to the perverse, unsupported by evidence or based on evidence not legally admissible.”

The bone of contention under issue one is that Appellant having amended his Writ of Summons and the Respondent failed to amend his Statement of Defence filed before the Appellant’s Amendments to his process, the lower Court ought to have granted all the reliefs sought by the Appellant because according to the Appellant, the Respondent has admitted its claims and facts admitted need no further proof.

It must be stressed that the principles relating to amendment of pleadings or any process is that when a Court grants an application to amend a process, the amendment of the process relates back to the date of the original filing of the process or pleading amended.

The reasoning and submissions of Appellant’s learned Counsel has no support in law. There can be no such admission. See:-
1. BRITANIA-U NIGERIA LIMITED VS SEPLAT PETROLEUM DEVELOPMENT COY LTD (2016) 4 NWLR (PART 1503) 441 AT 600 C per NGWUTA, JSC who said:-
“Generally an amendment duly made takes effect from the date of the document sought to be amended. See Adewumi v. A.-G., Ekiti State (2002) 9 WRN 51 at 71 -72; (2002) 2 NWLR (Pt. 751) 474; UBA Plc v. Abdullahi (2003) 1 NWLR (Pt. 807) 359 at 378 paras. C-F.”
2. JOHN HOLT PLC & ANOR V. JUSTICE I. W. ALLAN (2014) 17 NWLR (PART 1437) 443 AT 463H TO 465A – C per EKO, JCA now JSC who said:-
“It is good law to say, generally, that facts not denied are taken as admitted and that by virtue of Section 75 of the Evidence Act 1990 LFN (now Section 123 Evidence Act, 2011), facts admitted need no further proof. In the law as to pleadings, as the Supreme Court stated in Mobil Oil (Nig) Plc v. IAL 36 Inc. (2000) 6 NWLR (Pt. 659) 146 at 163 – 171, when the plaintiff amends his statement of claim the defendant is at liberty to amend his statement of defence in order to join issues on the facts introduced by the amendment. However, where the defendant fails to amend his defence, notwithstanding the amended statement of claim, his original statement of defence subsists and remains extant. The mere fact that the defendant fails to amend his statement of defence after the plaintiff had amended his statement of claim does not mean that the extant statement of defence has not joined issues on the material facts the plaintiff founds his reliefs upon for the claim. It is not the law, as the sweeping statement of the learned trial Judge tends to suggest, that the mere fact that the defendant has not amended his statement of defence his extant statement of defence ceases to exist and the defendant thereby has not joined issues with the plaintiff. In order to come to that conclusion the trial Court, on every issue, has to compare what the plaintiff had pleaded in his amended statement of claim with what the defendant in his subsisting or extant statement of defence has pleaded. The learned trial Judge, erroneously did not do this.
Paragraph 38 of the amended statement of claim is where the plaintiff/respondent pleaded his reliefs, or claims. By paragraph 15 of the statement of defence the defendant/appellants averred that the plaintiff’s claims against the defendants are in bad faith, untenable and misconceived and should be dismissed with substantial costs.” Frank O. Ezekwueche of counsel to the appellants submits, correctly in my view, that allegations of damages, quantum of damages and the reliefs claimed need not be specifically denied as denial of the substantive allegations on which the reliefs are founded impliedly involves the denial of the reliefs. As the Supreme Court stated in Nigerian Produce Marketing Board v. Adewunmi (1972) 1 All NLR (Pt. 2) 433, where the quantum of damages is not disputed, it does not follow that it is by implication, admitted.
The presumption is that damages are always denied in an action, whether or not specifically denied. The presumption is rooted in both case law and statute. Order 17 Rule 5 of the High Court (Civil Procedure) Rules, 2006, under which the High Court delivered the Judgment in this appeal, states: No denial or defence shall be necessary as to damages claimed or their amount, but they shall be deemed to be put in issue in all cases unless expressly admitted.
The averment in paragraph 15 of the statement of defence in this case was done in accordance with this Order 17 Rule 5. A number of statements from the Supreme Court, particularly in Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 at 640 B -C: Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt. 636) 626 at 647 B, E- P, clearly adumbrate this presumption in law.
I am in total agreement with the appellants’ counsel that the reasoning of the trial Judge to the effect that the appellants, having not amended their statement of defence and filed the same had admitted the averments in the amended statement of claim particularly paragraph 38 thereof, had been effectively punctured.
This is untenable in law.
Issue one is resolved against the Appellant.

The second issue charged the lower Court of being grossly biased against the Appellant when he dismissed her claims when Appellant statement of Claim was not countered nor his evidence challenged or contradicted.

The resolution of issue one would have been adopted since the plank upon which of the allegation of bias is based is alleged failure of Respondent to counter Appellants Amended Statement of Claims but having itemized nine as points as the elements which Appellant considered as forming the bias and its proof. I will consider it.
Can it be said the learned trial Judge is biased or has descended into the arena of the case before him. Recourse will be heard to what constitute bias or its elements. In Black’s Dictionary 10th Edition, page 102 “Bias” is described or defined as:
“A mental inclination or tendency; prejudice prediction.”
See also:
1.SUNKANMI ADEBESIN V. THE STATE (2014) 12 SCM (PT. 2) 1 AT 17 H – 18 A per NGWUTA, JSC who said:
“Bias can be of three categories:
(1) Pecuniary bias as exhibited by a member of the Tribunal or Court having a pecuniary interest in the subject matter of the dispute.
(2) Personal bias – existence of close relationship between a member of the Tribunal or Court and one of the parties to the dispute, and
(1) Official bias – an abnormal desire or inclination to pursue a predetermined line of action which would prevent an impartial adjudication of the dispute between the parties. See Venkatuchalam Iyer v. The State of Madras AIR 195.7 Mad. 623, 626. Appellant’s case falls within the third category of bias, there being no evidence that any of the Justices had pecuniary interest in the matter or related to any of the parties.”
2. RAFIU WOMILOJU & ORS V. ANIBIRE & ORS (2010) 7 SCM 217 AT 228 I – TO 229 A – D per I.T MUHAMMAD, JSC who said
“‘Blas’, generally, is that instinct which causes the mind to incline toward a particular object or course. When a judge appears to give more favour on consideration to one of the parties before him, either in his utterances, attention or actions, which is capable of perverting the cause of Justice, or where fair hearing cannot be said to take place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a judicial bias. But where a trial has been conducted in which the authority of the Court has fairly been exercised in consistence with the fundamental principles of justice embraced within the conception of the process of law, then there is said to be a fair hearing. This contemplates of allowing the parties equal opportunity to present evidence; to Cross-examine witnesses and for the trial Court to make findings which are supported by evidence. See: Omoniyi v. General Schools Board, Akure & Ors (1989) 4 NWLR (Pt. 89) 449 at page 463; Elike v. Nwakwoala & Ors(1984) 12 SC 301 at 341: Ariori v. Elemo (1983) 1 SC 13 at 81; Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407 at 433.
For an allegation of Judicial bias against the person of a Judge to succeed, the accuse must establish his allegation on same extra judicial factors/reasons such as where such factors or reasons are absent such ‘perceived’ judicial bias is insufficient to justify disqualifying a judge from participating in a case which is properly brought before him for adjudication. The allegation cannot be founded on mere conjecture or hearsay.”
I have carefully read the record of proceedings and the nine points raked up against the learned trial Judge to establish judicial bias, I am of the firm view that none of the nine points or allegation of bias was established having regard to the record of proceedings and the judgment of the learned trial Judge. There is no exhibition of any iota of bias proved against the learned trial Judge.

The first point has to do with failure to file amended statement of defence. I have ruled it against the Appellant.

On the second allegation to the effect that Respondent did not call ICAN or ANAN Accountant to disprove Exhibit “D”. I agree with Respondent that no law places any such burden on the Respondent. The evidence of the PW1 was considered by the trial Judge including documents tendered by PW1 and the learned trial Judge was right in rejecting his evidence. Even if PW1 could be said to be an expert in his field, his evidence that will not constitute probative value that will be accorded a value. Where a document has no probative value in that it cannot prove or establish any aspect of the Claimants case, the trial Judge will be right to reject or discountenance it as having no weight or probative value.

The third allegation is that the learned trial Judge sent Exhibits B and D to the Central Bank for verification and that Appellant was not given a copy of the Report that emanated front the Central Bank.

The learned trial Judge is empowered under ORDER 18 RULE 1 of the High Court of Federal Capital Territory Abuja (Civil Procedure) Rules 2004 to refer Exhibits B and D to CBN in order to find out the truth about the Report made by PW1 tendered before the Court. The reason behind it is amply captioned on pages 194 – 195 of the proceedings showing that the Appellant’s learned Counsel and Respondent’s Counsel all agreed and consented to the step taken by the trial Judge.
“13th March, 2012
Both parties absent.
Isaac Opanachi Esq with Esther Omale Ms for the plaintiff.
Defendant unrepresented.
J. W. Nimfas Esq with S. Bulus Esq for defendant (came late).
COURT:
I have gone through all the processes filed in this matter by both parties, the evidence before the Court and the written and oral submissions of counsel.
I am of the view that at this stage, the overall interest of Justice in this matter calls for a Referral to a Referee in accordance with Order 18 of the Civil Procedure Rules of this Court, for Proper ascertainment of the indebtedness or of the parties to one another in respect of the loan obtained, charges and approved interest thereto. Being the loan obtained by the plaintiff from the defendant bank as evidenced by approval of loan application dated 20/07/00 and 21/06/01 respectively and the sum accordingly disbursed to the plaintiff by the defendant’s Bank.
The parties are hereby accordingly called upon to address Court on their views on referral of this issue to a referee.
J.W. Nimfas Esq with Solomon Bulus Esq for defendant.
I am sorry for coming late.
I. OPANACHI:
ADDRESS ON REFERRAL
I want to remind the Court to certain facts. The plaintiff stalled to produce statement of accounts only until after contempt proceeding was filed against them.
The plaintiff submitted the statement to a chartered accountant to analyze the state of its indebtedness.
The analysis of the chartered accountant, the only witness of the plaintiff, was served on the defendant it was demonstrated in evidence before the Court that the defendant removed a certain unauthorized sum from the account.
The defendant elected not to produce its own expert evidence.
The defendant has the in house expertise to have countered any expert opinion but it elected not to do so. He didn’t file any statement of defence after we amended ours.
The power referring it to a referee is acceptable to us. J. W. NIMFAS:
We have no objection to the matter being referred.
COURT:
REFERRAL TO REFEREE
In the light of the aforementioned issue this case is hereby referred to the Central Bank of Nigeria for enquiry into evaluation and reconciliation of the account/accounts of the plaintiff with the defendant bank, taking into consideration the charges and approved interest rate chargeable at the time of the transaction in respect of the loan obtained evidence by the approval of loan dated 27/07/000 and 21/06/01 respectively as disbursed by the defendant to the plaintiff company.
The report from the central bank of Nigeria in respect of this referral shall include the exact balance of the account/accounts as at 6th December, 2007.
Both counsel:
Agree to 30th of May, 2012.”

In line 10 page 195 of the record the learned Counsel to the Respondent said:-
“We have no objection to the matter being referred.”

The Appellant has not shown what miscarriage of justice the Appellant suffered on the failure to serve Appellant the Report from Central Bank. Pages 258 – 260 of the record show glaringly that the learned trial Judge did not rely on Referral Report as the basis for his judgment. The Appellants allegation is thus unfounded.
The allegations in the fourth and fifth points are also unfounded as there was nothing Secret about the referral to the Central Bank.

In any event, the findings of the learned trial Judge on pages 258 – 260 earlier reproduced at the outset of this judgment constitute complete answers to all the allegations of bias made against learned trial Judge. They are not supported by the printed record and are a deliberate effort by the Appellant to denigrate the integrity of the trial Judge and the lucid judgment given by the trial Court.

The Appellant did not appeal the comprehensive and damaging findings made on pages 258 – 260 of the record by trial Court against the Appellant and its witness PW1. The Appellant must be taken to have been satisfied with the findings. The Appellant is bound by those findings. See:-
1. GUARANTY TRUST BANK PLC VS INNOSON NIGERIA LIMITED (2017) 16 NWLR (PART 1591) 181 AT 198 H TO 199A per EKO, JSC who said;
“It is a settled principle of law that a decision of a Court of law not appealed against is deemed to be acceptable to the parties thereto and it remains binding on them as well as their privies, including garnishees.
See Akere v. The Governor, Oyo State & Ors. (2012) 50 NSCQR 345 at 394. 414 – 415; (2012) 12 NWLR (Pt. 1314) 240; Dariye v FRN (2015) 67 NSCQR 1457 at 1496 – 1497; (2015) 10 NWLR (Pt. 1467) 325.”
2.DR. SAMUEL U. ISITOR VS MRS MARGARET FAKOREDE (2018) 5 NWLR (PART 1612) 328 AT 345H TO 346A – C per PETER ODILI, JSC who said:-
Clearly what I see before this Court in this application is the appellant’s hope of a Judicial memory loss upon which he can smuggle the extant application and in that supposed state of mind of the Court get in to grant the relief the applicant imagines possible. Fortunately our judicial wheel does not function in the way the applicant seems to push forward. I rely on the case of APGA v Senator Christiana N. D. Anyanwu & Ors. (2014) LER SC 20/2013, (2014) 7 NWLR (Pt. 1407) 541 where it was firmly:
“It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties.” per Motonmori Olatunbo Kekere-Ekun, JSC.
Again this Court, in Adeyemi v. Olakunri (1999) 14 NWLR (Pt. 637) at 206, it was thus:
“Where there is no appeal against a finding of the trial Court by either party to the action, the appeal Court would have no power to delve into the issue and pronounce on it.” See also Udom v. E. Micheletti & Sons Ltd (1998) 8 NWLR Pt. 515 at 192.”

The Appellant claims declaratory relief(s) particularly reliefs 4 and 5 all of which laid heavy burden on the Appellant to prove the reliefs claimed by cogent and convincing evidence without reliance on the weakness of the Defendant/Respondent and on any failure to file defence to the action. See:-
1. MRS ELIZABETH IRAROR ZACCALA VS MR KINSLEY EDOSA & ANOR (2018) 6 NWLR (PART 1616) 529 AT 547 B – D per M. D. MUHAMMAD, JSC who said:-
“To succeed, the claimant must therefore plead such facts and materials to sustain the claimant adduce evidence to prove same. See Alhaji Kabiru Abubakar & Anor v. John Joseph & Anor (2008) LPELR-48; (2008) 13 NWLR (Pt. 1104) 307; Nwanji v. Coastal Services Nigeria Ltd (2004) LPELR-2106 (SC); (2004) 11 NWLR (Pt. 885) 552 and Ativie v. Kabelmetal Nig. Ltd (2006) LPELR-591 (SC); (2008) 10 NWLR (Pt. 1095) 399. Secondly, there is the well-settled principle that requires the appellant to plead and prove his declaratory reliefs on the evidence he calls without relying on the evidence called by the defendant. In the instant case, where both parties seek declaration of entitlement to the certificate of occupancy in respect of the land in dispute each must establish to the satisfaction of the Court his entitlement as such reliefs are not granted even on the admission by the defendant. See Dumez Nig. Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 119) 361 at 373-374; Emenike v. PDP (2012) LPELR-7802 (SC); (2012) 12 NWLR (Pt. 1315) 556 and Senator Iyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & Ors. (2015) LPELR-24803 (SC); (2015) 15 NWLR (Pt. 1482) 205.”
2. MTN NIGERIA COMMUNICATION LTD VS CORPORATE COMMUNICATION INVESTMENT LTD (2019) 6 SCM 100 AT 126:
“The appellant did not appeal the finding of the trial Court that Exhibit B was issued to terminate Exhibit A. The appellant did not deny terminating its agreement with the respondent nor did it tender any other agreement to show that it was not Exhibit A that was terminated by Exhibit B. It did so by the written deposition of CW1 adopted and relied upon at the trial and the exhibits tendered. The law is that a party seeking declaratory reliefs must succeed on the strength of his own case and not on the weakness of the defence, if any. He has an obligation to prove his claims to the satisfaction of the Court notwithstanding any admission made by the defendant. This is because the grant of a declaratory relief is discretionary.”

More importantly the Appellant’s learned Counsel did not cross examine DW1 called by the Respondent who adopted his Witness Statement on Oath showing that the claims and reliefs sought by the Appellant cannot succeed. Pages 184 – 186 of the record show the evidence of DW1 and failure to cross examine him by Appellant.
“20TH APRIL, 2011
Bello Umar Manzo, Manager represents defendant.
Plaintiff absent.
Isaac Oponachi Esq for the plaintiff with Charles Uhegbu Esq and Esther Abaloka Miss for plaintiff.
Perry Ikoro Esq for defendant.
P. IKORO:
It’s for defence.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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DW1:
Affirms to speak the truth and states in English Language.
My name is Bello Umar Manzo. I work with Unity Bank as a Branch Manager.
On 8/2/11 I filed a witness statement on oath in this matter want to adopt this statement on oath as my evidence.
In paragraph 9 I referred to a 3rd party mortgage. I can identify a copy of same if seen. This is the deed of legal mortgage.
DEFENCE COUNSEL:
We seek to tender it.
LEARNED COUNSEL:
No objection.
COURT:
The deed of third party legal mortgage between dated 16/8/00 is admitted in Evidence and marked Exhibit A.
DW1: CONTS
In paragraph 16, I referred to a letter written by plaintiff’s solicitor. If I see a copy of same I can identify it. This is it.
DEFENCE COUNSEL.
We seek to tender it in evidence.
LEARNED COUNSEL:
We are not objecting.
COURT:
Letter from Isaac Opanachi to Mrs. D. O. Azure Co 16/09/03 Is admitted in Evidence and marked Exhibit L.
DW1: CONTS
In paragraph 7, I referred to a letter written by plaintiff. I can identify the letter if seen. This is the letter.
DEFENCE COUNSEL:
We seek to tender it in evidence.
LEARNED COUNSEL:
We are not objecting.
COURT:
The letter from plaintiff to Regional Manager, Bank of the North Plc date 18/5/04 is admitted in evidence and marked Exhibit M.
DW1 CONTS:
In paragraph 19, I referred to a letter from the AMDC, if I see it I can identify it. This is it.
DEFENCE COUNSEL:
We seek to tender it in evidence.
LEARNED COUNSEL:
No objection.
COURT:
The letter from the AMDC to Bank of the North dated 11/12/06 was admitted in evidence and marked Exhibit N.
DWI:
In respect of this case I want this Court to give judgment in favour of the bank.
DEFENCE COUNSEL:
That’s all.
CROSS-EXAMINATION:
Learned counsel:
We have no question for the witness.
DEFENCE COUNSEL:
That’s the case for the defence.”

This clearly is an admission by the Appellant and its learned Counsel of the deposition contained in the Witness Statement of DW1 as adopted by DW1 including all the documents tendered as Exhibits K, L, M and N.

Where a party to an action or his Counsel fails to cross examine a witness called by his opponent he is deemed to have accepted the evidence (oral and documentary) given by his opponent. The failure to cross examine DW1 by the Appellant’s learned Counsel is fatal to the Appellant’s case. The evidence given by DW1 completely destroyed and disproved all facts pleaded by the Appellant in its Amended Statement of Claim and the evidence of PW1 completely rendered valueless. The dismissal of Appellant’s case by the learned trial Judge is justified and well founded.
1. ISAAC GAJI ORS V EMMANUEL D. PAYE (2003) 8 NWLR (PT. 823) 583 AT 605 B – C per EDOZIE, JSC who said:-
“It has been said that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness: Oforlete v. State (2000) 12 NWLR (Pt. 683) 415 at 436. In the case of Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325, (1988) 2 SCNJ 146, this Court held that it is not proper for a defendant not to cross-examine a plaintiff’s witness on a material point and to call evidence on the matter after the Plaintiff had closed his case.”
2. NAPOLEON S. ORIANZI v. THE AG. RIVERS STATE & ORS (2017) 6 NWLR (PART 1561) 224 AT 266 H – 267 A-B per GALINJE, JSC who said:-
The 1st respondent partially admitted the 2nd paragraph of the statement of claim to the extent that he is the legal officer of the Rivers State Government and he is sued as representing the said government only. The facts contained in paragraphs 1, 3, 5 and 12 having been expressly admitted by the 1st respondent are deemed established. Where an averment in a statement of claim is not denied in a statement of defence, same is deemed admitted.
That which is admitted needs no proof. See Adesanoye v. Adewole (2000) 9 NWLR (Pt. 671) 127 at 145 paragraph A. With the admission of the averment’s and production of documents, exhibits P1, P2 and P3, the learned trial Judge was convinced that the appellant had proved its case, when he held:
“It is hereby declared that the plaintiff is the person entitled to the statutory right of occupancy of the land known as Plot 46, Diobu GRA Phase 1, Port Harcourt…”

In effect facts admitted need no further proof. See further:-
3. S.A. TAIWO v. S. ADEGBORO & ORS (2011) 6 SCM 159 AT 176 per BODE-RHODES-VIVOUR, JSC who said:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Section 75 of the Evidence Act states that:
75. No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have been admitted by their pleadings.
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. See Cardoso v. Daniel (1986) 2 WLR Pt 20 P. 1 judicial admission are conclusive. That is to say where a party agrees to a fact in issue, it is no longer necessary to prove that fact. In effect after an admission no further dispute on the fact admitted should be entertained by the Court.
This is the strongest proof, of the fact in issue. The fact in issue is whether 7 days notice was given by the auctioneer before the auction sale was conducted on 17/6/89.
M. M. Lambe Akanbi, learned counsel for the auctioneer in the Court of Appeal conceded that only one day’s notice was given by the auctioneer before the auction sale of the late Mr. M. Adegboro’s house was carried out on 17/6/89. That concession is an admission under Section 75 of the Evidence Act, and is conclusive on the issue.”

Consequently issue 2 is also resolved against the Appellant.
In the result the Appellant’s appeal lacks merit and it is hereby dismissed in its entirety.
The judgment of the High Court of Justice of the Federal Capital Territory, Abuja delivered on 8th day of July, 2013 is HEREBY AFFIRMED.
Appellant shall pay costs of N50,000 (Fifty Thousand Naira) to the Respondent.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA.

I am in agreement with the reasoning and the conclusion which I adopt as mine, that this appeal lacks merit. I too, find the appeal lacking in merit. The appeal is hereby dismissed.
I abide by the consequential orders inclusive of the order as to costs as made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Peter Olabisi Ige, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

SAMUEL AMEH, ESQ., with him, O. O. IFIJEH (MISS) For Appellant(s)

S. MADU, ESQ. For Respondent(s)