SKYE BANK PLC v. PERONE NIGERIA LIMITED (2016)

SKYE BANK PLC v. PERONE NIGERIA LIMITED

(2016)LCN/8225(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of February, 2016

CA/I/124/2012

RATIO

STATUTES OF LIMITATION; THE RATIONALE BEHIND THE ENACTMENT OF STATUTES OF LIMITATION

Statutes of Limitation are enacted so as to prevent or avoid a situation where a Plaintiff who has slept over his right may wake up from his slumber at any time to commence an action !n respect of a right which has accrued to him. Such Limitation Statutes are founded on principles of equity and fairness and therefore in keeping with the equitable principles of equity aids the vigilant and not an indolent person. A person who has decided to hibernate while his right is being violated cannot wake up at his leisure to commence action to realise such right. The rationale behind such statutes is that, a Plaintiff should not be allowed to perpetrate injustice by keeping a Defendant in suspense ad infinitum only to be faced with a stale claim. See Anukwu v. Eze (2012) 11 NWLR (pt. 1310) p.50; Ajayi v, Adebiyi (2012) 11 NWLR (pt. 1310) p.137 and Olagunju v. P.H.C.N. Plc (2011) 10 NWLR (pt.1254) p. 113. per. HARUNA SIMON TSAMMANI, J.C.A.

AN ACTION THAT IS STATUTE BARRED; WHEN IS AN ACTION SAID TO BBE STATUTE BARRED

The law is that, an action that is statute barred is one that touches on or goes to the jurisdiction of the Court. It is a matter of law rather than one of practice and procedure. In other words, the issue whether or not an action is statute-barred is one of jurisdiction which can be raised at any stage of the proceedings by either of the parties to the proceedings, or even by the Court suo motu. Thus, where the Court finds that the action statute-barred, the Plaintiff or Claimant who would have had a right of action, loses that right and any action filed by him will be struck out. See Anukwu v. Eze (supra) at p. 73 Paragraphs B – E, Ajayi v, Adebiyi (supra); Obi v. Onyemelukwe (2011) 1 NWLR (pt 1228) p. 400; C.P.C. v. I.N.E.C (2011) 18 NWLR (Pt. 1279) p. 493 at p. 532 Paragraph E-G; Sulgrave Holdings Inc v. F.G.N (2012) 17 NWLR (pt 1329) p. 309 at 342 Paragraphs F-G and Olagunju v. P.H.C.N Plc (2011) 10 NWLR (Pt. 1254) p. 113. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHETHER THE BURDEN OF PROOF LIES ON THE PARTY WHO DESIRES THE COURT TO GIVE JUDGEMENT IN HIS FAVOUR

Now, it is settled by statute and case law that, the burden of proof lies on the party who desires the Court to give judgment in his favour, in respect of any legal right or liability dependent on the existence or non- existence of facts which he asserts. This is so because, it is that party who would fail if no evidence at all were given on either side. That is the general or ultimate burden, which is enshrined in Sections 131 (1) & (2) and 132 of the Evidence Act, 2011. That burden does not shift, because, it is the party who claims the reliefs in the action, that has the onus probandi and therefore, the Respondent on record, who was the claimant at the trial Court, had the burden of proving that he was entitled to the reliefs sought. Thus, in the case of Akinfosile v. Ijose (1960) SCNLR p. 447 at 453, Abbot; FJ held that:
The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: WHETHER THE OPINIONS OF ANY PERSON AS TO THE EXISTENCE OR NON-EXISTENCE OF A FACT IN ISSUE OR RELEVANT TO THE FACT IN ISSUE, IS INADMISSIBLE

Generally, in law, and as stipulated by Section 67 of the Evidence Act, 2011, the opinions of any person as to the existence or non-existence of a fact in issue or relevant to the fact in issue, is inadmissible. One of the exceptions to that provision is as stipulated in Section 68 (1) and (2) of the Evidence Act, 2011 which stipulates that:
“68. (1) when the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art or as to the identity of handwriting or finger impressions, the opinions upon that point of persons specifically skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible.
(2) Persons so specially skilled as mentioned in Subsection 1 of this section are called experts.
It is obvious that the above provision of the Evidence Act does not state who an expert is, nor does it provide the criteria for determining or ascertaining who qualifies as an expert. In practice, the Courts have tended to rely on the educational or practical experience of the witness put forward as an expert. It is therefore the duty of the Court to decide, based on the evidence before it whether or not a witness is sufficiently skilled or knowledgeable in the field he testifies on as to qualify as an expert in that field. Evidence to establish that is usually elicited from the witness during examination-in-chief in areas such as, his academic qualifications, professional training or practical experience in the field, See A.P.P.P. v. Usman (2008) 12 NWLR (pt. 1100) p. at 72 – 73 Paragraphs G C and Ngige v. Obi (2006) 14 NWLR (pt, 999) p. 1 at 143 Paragraphs G-H. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: CONDITIONS FOR A STATEMENT MADE BY A PERSONS TO BE MADE ADMISSIBLE
By this provision therefore, for a statement made by a person to be made inadmissible, such a statement must have been made:
(a) By a person interested;
(b) When proceedings were either pending or anticipated; and
(c) The statement must involve a dispute as to any fact which the statement might tend to establish. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; HOW TO DETERMINE WHETHER OR NOT THE MAKER OF A DOCUMENT IS A PERSON INTERESTED

To determine whether or not the maker of a document is a person interested, the Court would consider the nature of the duty performed, so as to know if he had a temptation to depart from the truth on one side or the other; or whether he was swayed by personal interest, or was detached judicially, impartially and independently. Thus, in the case of Apena v. Aiyetobi (1989) 1 NWLR (pt. 95) p. 85 at 94, this Court held that any expert in his field of knowledge who makes a statement in any form in respect off a matter in Court, at any stage of the proceeding, is generally regarded as a person who has no temptation to depart from the truth as he sees it from his professional expertise. per. HARUNA SIMON TSAMMANI, J.C.A.

LIQUIDATION: THE DEFINITION OF LIQUIDATED DEMAND

The claims in my view are in the nature of a liquidated money demand. Thus, in the case of Maja v. Samouris (2002) 7 NWLR (pt. 765) p. 78, the Supreme Court defined a liquidated demand? as a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as mere matter of arithmetic without any other or further investigation. That, whenever the amount to which plaintiff is entitled can be ascertained by calculation or fixed by scale of charges or other positive data, it is said to be liquidated or made clear. On the other hand, the Black’s Law Dictionary (8th Ed.) at p.264 defines liquidated claim as a claim for an amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties agreement. On these definition therefore, it is my view, which I hold, that the claims of the Respondent are such that are capable of being ascertained as a matter of arithmetical calculations. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHICH EVIDENCE IS THE BEST EVIDENCE

It should however be noted that, a document which is tendered in Court is the best evidence of its contents and therefore no oral evidence will be allowed to discredit or contradict the contents of such document, save where fraud, mistake or other illegality is alleged. In other words, where a document is duly pleaded, tendered and admitted in evidence, it becomes the best evidence of its contents and therefore speaks for itself. See Olanleye v. Afro Continental (Nig.) Ltd (1996) 7 NWLR (pt. 458) p. 40; Anyaniru v. Uzowuaka (2009) 13 NWLR (Pt. 1159) p. 445 and Igbeke v. Emordi (2010) 1 NWLR (Pt. 1174) p. 48. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: WHAT A PARTY MUST LEAD TO MAKE OUT A CASE BASED ON DOCUMENT TENDERED

For a party to make out a case based on documents tendered, he must lead credible evidence which links the documents and the specific area(s) of his claim. See Olawuyi R. Tunji & Anor v. Elder David Bamidele & Ors (2012) 12 NWLR (Pt. 1315) p. 477 at 491- 492 per Nweze, JCA (as he then was); A.N.P.P. v. I.N.E.C. (2010) 13 NWLR (pt. 1212) p. 549; A.C.N. v. Sule Lamido & Ors (2012) 8 NWLR (pt. 1303) p. 560 at 592; Alao v. Akano (2005) 11 NWLR (PT. 935) P. 160 and A.N.P.P. & Anor v. Umar A.T. Argungu & Ors (2009) 17 NWLR (PT. 1171) P. 445 at 462 per Ba?aba, JCA (of blessed memory). per. HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

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

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

SKYE BANK PLC Appellant(s)

AND

PERONE NIGERIA LIMITED Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Oyo State High Court, holden in Ibadan in suit No. I/425/2008, delivered by A.A Aderemi, J. on the 20th day of January, 2012.

At the Court below, the Respondent was the plaintiff while the Appellant was the Defendant. The Respondent, as plaintiff had instituted the action against the Appellant (Defendant) by way of a Writ of Summons and Statement of Claim dated and filed on the 22/8/2008. By Paragraph 22 of the Statement of Claim which is at pages 3-5 of the Supplementary Record of Appeal, the Respondent as Plaintiff claimed as follows:
“22. Whereof the plaintiff claims as follows;
I. A DECLARATION that the plaintiff does not owe the Defendant the sum of N26,253,976.04 as it does not reflect the true position of the Statement of Account of the plaintiff with the Defendant.
II. A DECLARATION that the plaintiff is not liable to pay any interest, commission or any charge on any entry illegally entered by the Defendant in the plaintiff’s Account with the Defendant.
III. AN ORDER directing the defendant to

furnish the plaintiff with a true and accurate Statement of Account of the plaintiff.
IV. THE sum of N178,858,622.12 (One Hundred and Seventy-Eight Million, Eight Hundred and Fifty-Eight Thousand Six Hundred and Twenty-Two Naira, Twelve kobo) being the amount representing excessive and wrongful charges, illegal entries, excessive COT, phantom debits made by the Defendant into the Plaintiff?s account and due to the plaintiff.
V. INJUNCTION restraining the Defendant, its agents and servants from taken (Sic) any step or further steps in selling, auctioning or disposing off the Plaintiff?s Mortgage property at Idi-Ishin Layout, Jericho, Ibadan covered by a Legal Mortgage registered as No. 23 in Volume 3024 of the Lands Registry in Ibadan.
VI. A DECLARATION that any sale, disposition or alienation of the property at Idi-Ishin Layout, Jericho, Ibadan covered by a Legal Mortgage registered as No. 23 page in volume 3024 of the Lands Registry in Ibadan made by the Defendant is null, void and of no effect.

At the time the action was instituted, the Oyo State High Court (Civil) Procedure) Rules, 2010 has not come into effect. Before evidence could be gone into, the Oyo State

High Court (Civil Procedure) Rules 2010 was promulgated. Consequently, the parties front-loaded the Written Depositions of their witnesses and the documents they would rely on at the trial. The Appellant had filed her Statement of Defence and Counter-Claim on the 24/6/2009.

The Appellant’s Statement of Defence denied the Respondent’s Claim and by the Counter-Claim, claimed as follows:
“42, WHEREOF:
(A) The Defendant counter claims the sum of N26,133,976.14 (Twenty-Six Million, One Hundred and Thirty-Three Thousand, Nine Hundred and Seventy-Six Naira, Fourteen kobo Only) being outstanding debt due to the Defendant from the Plaintiff as respect of overdraft facilities granted to the Plaintiff.
(B) 22.5% interest on the outstanding balance of N26,133 ,976.14 (Twenty-Six Million, One Hundred and Thirty-Three Thousand, Nine Hundred and Seventy-Six Naira, Foufteen kobo Only) from 24th August, 2005 till judgment is delivered and 21% interest thereon until the whole judgment debt is fully liquidated.
(C) The sum of N500,000.00 (Five Hundred Thousand Naira Only) being exemplary damages for breach of loan agreement between the Defendant and the

Plaintiff.?

The Respondent’s (Plaintiff’s) case before the trial Court is that, she is [was] a customer to the Appellant (Defendant) at it’s Jericho Branch, Ibadan, and in that capacity enjoyed various banking facilities from the Appellant. That sometimes in 1994, the Appellant granted it some banking facility in the sum of Five Million Naira Only (N5,000,000.00) which was later increased to Fifteen Million Naira (N15,000,000.00). That, the Respondent kept servicing the facility as and when due, but to her chagrin, the debt sum kept increasing instead of decreasing. That, there were several correspondences between the parties in respect of the amount of debt due, whereof the Appellant informed the Respondent that, the amount of debt due for repayment as at date of letter dated 14/2/2005 was N32, 872,793.52k. According to the Respondent (Plaintiff), she wrote to the Appellant (Defendant) accepting liability for the sum cf N26,231,102.25k as full and final settlement of the debt due.

It is also the case of the Respondent that, she paid to the Appellant the sum of Ten Million Naira (N10,000,000.00) as part re-payment out of the sum of

N26,231,102.2k she had admitted, and further sent a repayment plan for the balance. That, it did not stop at that, but continued to make further repayments of N200,000.00 monthly in respect of the balance of the debt due. That, in the process, she discovered that the Appellant had made illegal and wrongful debits into its account, whereof she complained to the Appellant and the wrong debit was reversed. That, it also noticed that the debt kept on increasing instead of decreasing, so it commissioned the Firm of SAMMY LATUS ASSOCIATES, a firm of banking consultants to look into the status of the account with the Appellant. That, the Firm did its work whereby it was discovered that between 1995 and 2008, the Appellant had wrongly debited the account of the Claimant to the tune of One Hundred and Seventy-Eight Million, Eight Hundred and Fifty-Eight Thousand, Six Hundred and Twenty-Two Naira, Twelve Kobo (N178,858,622.12). That, these wrong deductions were made when the Appellant failed to keep a proper account of the Respondent?s Account and also failed to comply with the Central Bank of Nigeria Monetary Policy Guidelines in the operation of the

Account.

The Respondent further contended that, at the time she agreed to pay the sum of N26,231,102.25k as the full and final payment of the debt due to the Appellant, it was not aware that it had liquidated the whole debt it owed the Appellant. That, it only became aware that it was no longer owing when the consultant submitted his Report on the 1st day of June, 2008.

The Appellant, who was the Defendant/Counter-Claimant at the Court below stated that, the Respondent became its customer in February, 1990, and was granted an overdraft facility of N350,000.00 for a period of 12 months in 1999, That, the Respondent took further facilities at various times in the sums of N500,000.00, N5,000,000.00, N10,000,000.00, N4,500,000.00 and N500,000.00 respectively between 1992 and 1995, which facilities were secured by a Deed of Legal Mortgage Registered as No.23 in Volume 3024 at the Lands Registry, Ibadan.

The Appellant also contended that, due to the failure of the Respondent to offset the liability or facility it had agreed to repay, it set aside the updated legitimate interest of N6,641,686.32 due on the amount of the amount of the debt, and informed

the Respondent accordingly vide letter dated 24th of August, 2005, and also demanded that the Respondent furnish her a plan of action for the repayment or liquidation of the balance of N26,231,102,12k. That, the Respondent’s indebtedness had risen further to the sum of N33,273,038.40 and therefore a letter of complaint was written to the Respondent reminding it of its failure to comply with the monthly repayment of N500,000.00 it had agreed to pay vide letter of 16th August, 2004. The Appellant then contended that, the Respondent had failed, refused and or neglected to take advantage of the opportunity granted it by the, Appellant to make full repayment of the debt due and communicated to it. Furthermore, that, though the Respondent had admitted and accepted to pay the sum of N26,231,102.15 as full and final payment for the facility granted her, she failed to forward an acceptable plan of action for the repayment of the amount it had accepted.

The Appellant then denied that it wrongly debited the Respondents account to the sum of N178,838,622.12 or any amount whatsoever, different from those legitimately agreed to by the parties at the time the facility

was granted. The Appellant also denied that it breached any Central Bank Monetary Policy Guidelines in its operations of the Plaintiff’s loan account.

At the trial, the Respondent who was the Plaintiff called two witnesses in its effort to prove its case and tendered several document, which were then admitted in evidence. The Appellant called only one witness and also tendered same documents which were also admitted in evidence. At the close of evidence, respective counsel filed and served written Addresses and in a considered judgment delivered on the 20th day of January, 2012, the learned trial Judge gave judgment for the Respondent and granted all the reliefs it sought but dismissed the Appellant?s counter-claim. The Appellant is dissatisfied with the judgment of the trial Court and has now filed this appeal .

The original Notice of Appeal, which is at pages 237 – 238 of the main Record of Appeal, was dated and filed on the 27th January, 2012. However, by Motion on Notice dated and filed the 27/5/2013, the Appellant was granted leave to amend the Original Notice of Appeal filed on the 27/1/2012. The Amended Notice of Appeal dated and

filed the 27/5/2013 was deemed filed on the 11/11/2014. Leave was again granted the Appellant vide Motion on Notice dated 29/10/2015 and filed the 30/10/15 to raise and argue one Additional Ground of Appeal, and to Further Amend the Notice of Appeal accordingly. The Further Amended Notice of Appeal was dated the 29/10/2015 and filed the 30/10/15 but it was deemed filed on the 10/11/2015. This appeal was therefore argued on the Further Amended Notice of Appeal consisting of Ten (10) Grounds of Appeal.

Upon the Further Amended Notice of Appeal, the parties filed and served their briefs of Arguments in obedience to the Rules of this Court. The Appellant’s Brief of Arguments which was dated the 29/10/2015 was filed an the 30/10/2015 and deemed filed on the 10/11/2015. Therein, ten (10) issues were distilled for determination as follows:
1. whether the Learned Trial Judge was right to hold that the evidence of PW2 was that of an expert.
(Ground 1).
2. Whether it can be said that the Respondent?s claim for special damages in the sum of N178,858,622.12 had been specially pleaded and strictly proved as required by law. (Ground 4).<br< p=””

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3. Whether the Learned Trial Judge was right to have treated Exhibit ‘F’ as unchallenged expert evidence in the circumstances of this case.
(Ground 2).
4. Whether the Learned Trial Judge erred in law and misapplied the facts before him when he granted the entire claims of the Respondent.
(Ground 3).
5. Whether a substantial part of the claim of the Respondent is statute barred and ought not to have been granted.
(Ground 7).
6. Whether reliefs (i), (ii) and (iii) granted in favour of the Respondent by the Learned Trial Judge are obtainable in law.
(Ground 8).
7. Whether the Learned Trial Judge erred in law to have refused to recognize the Appellants power of sale under the validly executed and registered Deed of Legal Mortgage. (Ground 5).
8. Whether the Learned Trial Judge was right to have dismissed the Counter-Claim of the Appellant.
(Ground 6).
9. Whether the delivery of Judgment Learned by the Learned Judge over ten (10) months after the initial adoption of Written Addresses by counsel affected the validity of the Judgment.
10. Whether the Judgment of the High Court is against the weight of

evidence.
(Ground 9).

The Respondent’s Brief of Arguments was dated and filed the 02/12/2015, Therein, the Respondent raised three (3) issues for determination as follows:
A. Whether CW2 is an expert witness whose evidence the trial Judge ought to ascribe probative value to as he did.
B. Whether having not been challenged or contradicted by the Appellant, the trial Court was right to have relied on Exhibit ?F?.
C. Whether having regard to the totality of the evidence adduced by both parties, the trial Judge was right to have granted the claims of the Respondent and dismissed the Appellant?s Counter-Claim.

I wish to point out that, upon being served the Respondent?s Brief of Arguments, the Appellant filed an Appellants Reply Brief. The said Reply brief erroneously titled; “Reply Brief of Argument, on Pleading of the Respondent and Evidence that PW2 is an Expert?, was dated the 19/01/2016 and filed the same day, but deemed filed on the 20/01/2016.

?I have carefully read and reflected on the issues formulated by the parties. It is my view that the ten (10) issues formulated by the Appellant are

unnecessarily many and therefore proliferated. On the other hand, the issues formulated by the Respondent are inadequate to resolve this appeal. Consequently, I have decided to formulate four issues, which I believe will effectively resolve this appeal. The issues are:
1. Whether the Respondent?s claims or some of the claims are statute barred.
2. Whether from the totality of the evidence led at the trial, the Respondent has adduced sufficient evidence as to entitle him to the claim of One Hundred and Seventy-Eight Million, Eight Hundred and Fifty-Eight Thousand, Six Hundred and Twenty-Two Naira, Twelve Kobo (N178,858,622.12) against the Appellant.
3. Whether from the totality of the evidence adduced at the trial, the Appellant proved his Counter-Claim of Twenty-Six Million, Two Hundred and Thirty-One Thousand, One Hundred and Two Naira, Fifteen Kobo (N26,231,102.15) as the sum due from the respondent to the Appellant on the loan facility granted to the respondent.
4. Whether the Judgment delivered on the learned trial Judge over ten (10) months after adoption of final addresses of counsel is valid.

Now on issue one (1), learned

counsel for the Appellant had contended at pages 19 – 20 of the appellant?s brief of Arguments that, the learned trial judge did not avert his mind to the fact that many of the alleged wrongful and illegal debits pleaded are statute-barred. That though this issue was not raised at the trial, this Court granted the Appellant leave to raise the issue as a fresh issue. That the claims based on reversal of COT and VAT with interest to be charged thereon, deduction of loan thirteen times instead of ten times as itemized in Paragraphs (a), (b) and (c) of the claim are affected. Learned counsel then submitted that, the Respondent had received statements of Accounts several years back before handing same over to the PW2 but did not raise any queries on same, and therefore the operative dates when those alleged wrongs which led to the reliefs claimed by the Respondent are 24th August, 1999 and between May, 1998 and 31st January, 2000. That the Suit was instituted on the 24th April, 2008 almost 9 years and over 8 years respectively after the alleged cause of action arose. It was therefore submitted, by virtue of the Limitation Law of Oyo state, the action ought to

have been instituted within six (6) years after the cause of action arose.
The case of P.N Uddoh Trading CO. Ltd v. Sunday Abere & Anor (1990) 8 NWLR (Pt. 467) p. 479 Paragraphs E-G was then cited to submit that some of the issues isolated by the learned trial Judge upon which he arrived at a conclusion that N178,858,622.12 is over debited are statute-barred.

The response of the Respondent is at pages 19 – 20 Paragraphs 6.7 ? 6.12 of the Respondent’s Brief of Arguments. It is the contention of the Respondent that, the DW1 had admitted that the Respondent is entitled to the refund of interest charged on the Respondent?s account before April 1999 and the Appellant also gave evidence that the interest charged by the bank was compounded monthly. That, the interest charged formed part of the claims of the Respondent and on which interest was continuously charged on a daily basis since 1999, and that, the wrongful and illegal debits and entries which gave rise to the cause of action would continue for as long as the wrongful debits and entries continued. That, the cause of action therefore arose as and when the wrongful and illegal debits

are made and as the Appellant continued to charge interest on the account. In other words, that the continuous charging of interest on the account on a daily basis constituted fresh cause of action each time such wrongful charge of interest was done; and therefore, the claims of the Respondent are not caught up with the Limitation Laws of Oyo state.

Learned Counsel for the Respondent also cited the cases of Aremo II v, Adekanye (2004) 42 W.R.N. p. l and C.B.N v. Amao (2010) 5 – 7 S.C. (Pt. 1) p. 1 to further submit that, those claims were admitted by the Appellant through DW1 and are only being raised at the appeal stage.
That the Appellant never made it an issue at the trial because most of the Appellants Counter-Claim arose from transactions that were consummated in the Year 2010. It was thus submitted that, none of the Respondent?s claims is statute-barred.

Replying to the argument of the Respondent, learned counsel for the Appellant contended that, the argument of the Respondent that there was continuous charging of interest on daily basis is not borne out from the reliefs as shown in the records, as the Appellant?s argument is

that same items or the alleged over debiting are statute-barred on the face of the records. That, the cause of action arose on the face of Paragraph 15 of the Statement of Claim and the exhibits tendered, The cases of Plateau Construction LTD & Anor v. Aware (2014) 6 NWLR (pt. 1097) p. 182, were cited to submit that the question whether or not an action is statute-barred is an issue of law touching on the competence and thus jurisdiction of the Court.

only to be faced with a stale claim. See Anukwu v. Eze (2012) 11 NWLR (pt. 1310) p.50; Ajayi v, Adebiyi (2012) 11 NWLR (pt. 1310) p.137 and Olagunju v. P.H.C.N. Plc (2011) 10 NWLR (pt.1254) p. 113.

The facts to ground the plea of

Limitation of action can be gleaned either from the statement of Defence, but it may also arise from the facts pleaded in the statement of claim. It is however, the law that the defence being a special one, must be specifically pleaded. The purpose is to avoid taking the Claimant by surprise. Thus, Order 15 Rule 7(2) of the Oyo State High Court (Civil Procedure) Rules, 2010 stipulates that:
“where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation Law, release, payment, performance facts showing in sufficiency in contract or illegality either by any enactment or by common Law, he shall specifically plead same.,,
Order 15 Rule 7 of the Oyo State High Court (Civil procedure) Rules, 2010 cited above, therefore requires that Limitation Law shall be specifically raised. In other words, the defence of limitation must be specifically pleaded. See Ajebamiji & Ors v. Iyabo Afusat Lawanson & Ors (2008) 15 NWLR (Pt. 1109) p.122; (2008) LPELR-2864 (SC); Olagunju v. P.H.C.N. Plc (supra) at p. 124 Paragraphs F -G; and Sulgrave Holdings Inc. v. F.G.N. (supra). Therefore, though the defence can be

raised at any time, even for the first time at the Supreme Court, the party relying on the same must supply sufficient facts which the defence can be based.

In the instant case, there was no iota of pleading, either in the Statement of Claim or the Amended Statement of Defence to indicate that the plea of limitation of action will be raised by the Appellant. The issue was neither raised in the Appellant?s written address before the Court nor was it pronounced upon by the trial Court. Though the issue is one of jurisdiction, and the Appellant had leave of this Court to raise same as a fresh issue, the Appellant did not demonstrate before this Court that based on the facts pleaded and evidence led, the Respondent?s Claim or any part of it is statute-barred. Though the loan transaction between the parties began in 1990, the pleading show that, dispute on the repayment between the parties began in August 2004 when the Appellant wrote the Respondent complaining of non-payment of the loan due. The Writ of Summons was taken out by the Respondent in April, 2008 which is a period of less than four years when the dispute began and which gave either of

the parties the right of action. This argument that the Respondent?s claims are statute-barred therefore lack substance. I accordingly resolve this issue against the Appellant.

On issue two formulated by me, learned counsel for the Appellant contended that, the findings of the learned trial Judge at pages 225 and 227 of the Record of Appeal that PW2 who tendered Exhibit ?F? is a banking expert is wrong. That, the Respondent did not plead that he will be relying on expert evidence but only pleaded at Paragraphs 13 and 14 of the Statement of Claim that it commissioned SAMMY LATUS ASSOCIATES to look at its operation with the Appellant. Furthermore, that there is nowhere that PW2 gave evidence of his qualification and experience and skill in banking and preparation of forensic reports; and that there is therefore no nexus between the qualification of PW2 and the report he prepared. Moreover, that there is no evidence that the report (Exhibit ?F?) which was addressed to Co-operative Bank Plc, a defunct bank, was given to the Appellant. Learned Counsel then submitted that, the qualifications of an expert, how a party can use an

expert and the procedure by which the expert can appear in Court is a matter of law and procedure, which must be strictly followed; and therefore, if an expert opinion is sought to be given during the pendency of an action, the procedure laid down in Order 27 Rules 7, 8 and 9 of the Oyo State High Court (Civil Procedure) Rules, 2010 must be followed.

Learned counsel for the Appellant also contended that, the sum of N178,858,622.12 awarded by the trial Court based on the report of the expert being excessive and wrongful charges, illegal entries, excessive COT and phantom debits made by the Appellant into the Accounts of the respondent, are items of special damages. He then cited the cases of Prof. Ajibayo Akinkugbe v. Emulum Holding (Nig) Ltd. Anor (2002) 12 NWLR (pt. 1098) p. 375 at 404 Paragraph G-h and African Continental Bank Plc v. Victor Ndoma-Egba (2000) 8 NWLR (pt. 669) p. 389, to submit that, being special damages, they must be specifically pleaded and strictly proved. It was therefore submitted that the claims in Paragraph 14 of the Statement of Claim are vague as the particulars or details of those claims were not pleaded as required by law, as

it merely averred that, the Appellant?s account was wrongly debited and arbitrarily charged interest to the tune of N178,858,622.12. In other words, that the particulars of the wrongful and illegal debits were not pleaded, and the correct interest rates applicable nor the wrong interest rates used were not stated. Furthermore, that no evidence was led in prove of those items of wrongful and illegal debits and interest charges but the PW2 merely picked a few alleged arithmetical lapses here and there to urge the Court to find in favour of the colossal sum of N178,858,622.12.

It was further submitted that the particulars of illegality were not given. That the particulars of the Central Bank of Nigeria Monetary Policy Guidelines and Bankers Tariffs wherein the Respondent alleged that Appellant deviated from, ought to have been pleaded and that the specific Monetary Policy Guidelines and Tariffs were not tendered. It was therefore submitted that, it is the law that particulars of illegality must be pleaded and proved beyond reasonable doubt and not left to the realm of mere ascertions.

?Learned counsel for the Appellant went on to submit that,

whether PW2 is an expert or not, his findings in Exhibit ?F? still had to be tested for veracity, credibility and conclusiveness. The case of Heery Tuah v. Mary W. Michael (2010) 10 NWLR (pt. 1203) p. 519 at 534 Paragraph C-D and 543 Paragraphs D-E and Section 69 and 70 of the Evidence Act, 2011 were cited to submit that, the learned trial judge should have subjected the report (Exhibit ?F?) to a deep and penetrating scrutiny before placing heavy weight and reliance on it. That there is evidence on record that the Respondent took several loan facilities, and that at the time the action was instituted, the Respondent was owing the sum of N26,231,102.25 with some skirmishes of argument that it had paid part of it. Learned Counsel then referred to Paragraph 9 of the Statement of Claim, Paragraph 9-17 of the Affidavit in Support of the Respondent?s Motion for injunction at pages 4-7 of the records and Paragraphs 2-4 of the Respondent?s reply and Defence to Counter-Claim, were the Respondent admitted to owing N26,231,102.25. That, the Respondent only brought up the issue of unilateral and one sided Audit Report after it had

instituted the action and thus came up with the claim of N178,858,622.12.

It is further submitted by learned counsel for the Appellant that, the Appellant joined issues with the Respondent in Paragraphs 15, 16, 17 and 18 of the Amended Statement of Defence and Counter-Claim, and further pleaded and led evidence that, the trial Court was wrong in holding that the Respondent?s evidence was unchallenged; as it was the Respondent who had the burden of proving how the alleged wrongful and illegal deductions and interest charges arose and also demonstrate the quantum of over-debit with arithmetical precision. Furthermore, that the onus was on the Respondent to proof its case by calling credible and conclusive evidence and cannot rely on any lacuna or any perceived weakness in the defence. The case of The Permanent Secretary, Federal Ministry of Education & Anor v. F.A. Akinloye (2010) 14 NWLR (pt 686) p. 100 at 105 Paragraphs C-D was then cited to submit that, a calm and sober look of the evidence on record will show that, the quality of evidence given by the Respondent is unreliable and valueless. That, for the trial Court to ascribe the right

probative value to Exhibit ?F?, the Respondent should have led credible evidence to show:
(a) That total amount paid so far;
(b) That it has repaid the entire loan;
(c) That if the figures are computed, it had paid more than it ought to pay based on the entire loan;
(d) That it has specifically paid N178,858,622.12 over and above what he ought to have paid to liquidate the load;
(e) That there are Central Bank Guidelines and Directives which clearly render the various charges over-debited illegal; and
(f) That all the sums wrongly and illegally debited amounted to the precise figure claimed.

Learned counsel for the Appellant then submitted that, Exhibit ?F? and the evidence of PW2 which the learned trial judge accepted and acted on as expert evidence failed to meet the above stated criteria. That there is no evidence whatsoever to support the workings of the interest rate chargeable and the illegality of the charges. Learned counsel then submitted that, the learned trial Judge merely relied on the very many arithmetical conclusions or monies wrongly debited but which did not show how he came about

those figures, and the admitted errors by the DW1 which relates to failure to reverse interest charged into the Respondent?s account on COT and VAT wrongly debited, wrongful and illegal debit of management fees and loan repayment thirteen times instead of ten times, to find for the Respondent. That, there is however no evidence to show how those admissions could culminate to the sum of N178,858,622.12 awarded to the Respondent, especially when the Respondent did not plead the issue of management fees and notification of charges on interest rate.

?Learned counsel for the Appellant also listed some other lapses, which he contends affected the credibility and probative value of Exhibit ?F? as follows:
(a) The letter forwarding the Report (Exhibit ?F?) was addressed to Cooperative Bank Plc- a defunct bank.
(b) item 1 in the Appendix failed to show clearly the correctness of the arithmetical calculation therein, which is called incidental interest; and that it did not show where PW2 got the 30% interest it applied in arriving at his conclusions.
(c) Item 7(a) in Exhibit ?F? is ridiculous as it contained an incomprehensive working which has no basis whatsoever, and

is not supported by any iota of documents to show the difference in the interest rates and how the excess arose.
(d) That even if it is proved that management fees were not supposed to be charged or that N503,000.00 was deducted three times in excess, as is alleged items 4 and 6 of Exhibit ?F?, there is a yawning gap as to those small isolated amounts soared to N178,88,622.12.
(e) It is difficult to see how Exhibit ?F? totaled up to the sum of N178,858,622.12 when PW1 himself, could not answer the question, whether he paid more than N178,858,622.12 into the loan account; and also could not tell whether Exhibit ?F? was comprehensive.
(f) That Pw2 said he only saw and made use of one facility contract, and could not therefore tell how many times the Respondent applied for facilities. Furthermore, that PW2, by his admission, dealt with debits only in the account. He did not deal with the credits nor did he know the total amount repaid by the Respondent, as he claimed that he was not engaged to find out the total amount the Respondent paid to the Appellant.
(g) PW2 stated that the account he went through

contained credits but he did not give evidence on them, and therefore his report cannot be said to be complete as it did not state a reliable state of the Respondent?s account with the Appellant. That he did not cross-check with the Appellant to confirm the accounts given to him by the Respondent and so did not examine the accounts- Exhibits ?K1-K44?, and therefore he was presented with and worked on incomplete documents-Exhibit ?A? A120?.
(h) The evidence shows that the Respondent commenced operating the account since 1990, and he tendered statement of accounts from 1994-2007. That Exhibits ?K1-K44? tendered by the Respondent covers 2000-2007. That the facts therefore show that the Exhibit ?F? produced by PW2 cannot be a complete Audit of the Respondent?s account with the Appellant. The case of Uwa Printers (Nig) Ltd v. Investment Trust Co. Ltd (1985) 5 NWLR (pt. 92) p. 110 at 121-122 Paragraphs D-C was cited in support.

?It was therefore submitted that the errors and assumptions enumerated in Exhibit ?F? lack factual and probative basis, which makes the

decision of the learned trial judge on Exhibit ?F? perverse. The cases of Dr. John Olukayode Fayemi v Olusegun Adebayo Oni & Anor (2009) 7 NWLR (pt. 1140) p. 223 at 277-278 Paragraphs E-B; Seismograph Services Ltd v. Benedict Etedjere Ovakpasa (1972) 4 S.C p. 110 at 121 ? 123; G.A. Obanor v. Ehighie G.A. Obanor (1976) N.M.L.R p.39 and The Shell Petroleum Dev. Co. (Nig) Ltd. V. Chief Grahams Otoko & Ors (1990) 6 NWLR (pt. 159) p. 693 at 713 were then cited to submit that, the so-called expert evidence in Exhibit ?F? is not credible and should not have been relied upon by the trial Court.

It was submitted by learned counsel for the Appellant that, the learned trial Judge misinterpreted and misapplied the dictum of Aloma Muktar, JCA (as he then was) in Alhaji Musa Ya?u v. Maclean D.M. Dikwa (2001) 8 NWLR (pt. 714) p. 129 at 154 Paragraphs G-H. That an expert witness may be discredited by some of the ways stated in that judgment, but it does not stop a trial Judge from examining the expert report critically before ascribing proper weight to it. The cases of Asafa Foods Factory Ltd v. Altraine (Nig) Ltd. & Anor

(2002) 12 NWLR (pt. 781) p. 353 at 370 ? 371 Paragraphs H-A and A.N.P.P. & Anor v. Alhaji Saidu Nasamu Usman & Ors (2008) 12 NWLR (pt. 1100) P. at 68 Paragraphs E-H were cited in support. Learned counsel then submitted that, there is the need for the party calling the expert witness to supply the factual basis of such expert opinion, because, an opinion based on doubtful grounds or unrealistic assumptions may not be admitted and if admitted will attract no or little evidential weight. That if the learned trial Judge had critically considered the evidence of pw2 and Exhibit ?F? tendered by him, it would have accepted such evidence with a ?pinch of salt?. The cases of Dumez (Nig) Ltd v. Peter Nwakhoba & Ors (2008) 18 NWLR (pt. 1119) p. 361 at 382 Paragraphs C-F and Ikono Local Government v. De Beacon Finance & Securities Ltd. (2002) 4 NWLR (pt. 756) p. 128 at 142 Paragraphs G-B were cited to urge us to hold that the decision of the learned trial Judge relying on Exhibit ?F? is perverse, and to set the Judgment aside.

In response, learned counsel for the Respondent referred to Section 68 (1) of the

Evidence Act, 2011 to contend that, the respondent complied with the Rules of Pleadings by sufficiently pleading the necessary facts towards reliance on Exhibit F, when it pleaded in Paragraphs 13 and 14 of the Statement of Claim that it would be relying on expert evidence thus the Appellant had a fair knowledge of the evidence to be given by PW2. That though PW2 did not state his qualifications and experience in his written statement on oath, same was however given in cross-examination. That, the PW2 had given his qualifications and experiences and how and why he prepared Exhibit ?F? by using documents given him by the Respondent. That in any case, the qualification and experience of PW2 in preparing Exhibit ?F? was not an issue during the trial. It was further submitted that, it was the evidence of PW2 elicited during cross-examination as to his qualifications and experience that the learned trial Judge relied on to form an opinion that Exhibit ?F? was the opinion of an expert and also relevant to the determination of the suit. The cases of AG. Federal Republic of Nigeria v. Atiku Abubakar (2007) 10 NWLR (pt. 1041) and Azu

v. State (1993) 6 NWLR (pt. 229) p. 30 were cited in support.

?Learned counsel for the Respondent also contended that, PW2 established his competence as an expert as envisaged by Section 68(1) of the Evidence Act, 2011. It was therefore contended that the Appellant ought to have challenged the qualifications and experience of PW2 by incisive cross-examination so as to discredit him or his claim of being an expert. The cases of Ya?u v. Dikwa (2001) FWLR (pt. 62) p. 1987; Shell Dev. Co. Ltd. V. Otoko (1990) 6 NWLR (pt. 159) p. 693;. Shell Dev. Co. (Nig) Ltd v. Abel Isladi (1990) 6 NWLR (pt. 508) p. 236 and Leadway Assurance Co. Ltd v. ZECO (Nig.) Ltd (2004) 4 S.C.M. p. 97 were then cited to submit that, whether the evidence given by PW2 was that of an expert or not is not material to the determination of this case and would not affect the findings and conclusion of the trial Court. That the pertinent issues to be determined in respect of ?Exhibit F? are:
(a) Whether it is relevant to the determination of the Respondent?s claim.
(b) Whether it was pleaded by the Respondent;
(c) Whether it was pleaded and admitted in

evidence at the trial;
(d) Whether it was challenged in anyway by the pleading and evidence of the Appellant and
(e) Whether the learned trial judge ascribed the right probative value to it.

Learned counsel then contended that, the above questions were rightly resolved in favour of the Respondent. That, in any case, the Appellant was given Exhibit ‘F’ before it was tendered in Court, and same was further front loaded and served on the Appellant. That, the Cooperative Bank to whom Exhibit ‘F’ was addressed was the predecessor of the Appellant.

It was further contended that, the Appellant is misconceived in his argument that Exhibit ‘F’ was procured solely for the purpose of the trial and filed in Court during the course of the proceedings. That, it is so because, the writ of summons dated 24/4/2008 was filed while the Respondent’s banking operations was being investigated by a Firm of Auditors; and that it was the Appellant’s attempt to sell the Respondent?s property that prompted the Respondent to rush to court without waiting for the result of the Auditor’s Report. That, the Respondent then amended her statement of claim on the

22/8/2008 wherein the Report was pleaded. The case of Apena v. Aiyetobi (1989) 1 NWLR (pt. 95) p. 85 was therefore cited to submit that, it is a misconception of the law to argue that once a suit is filed, no steps should be taken to bring material evidence for a just determination of the suit. That in any case, the issue of breach of Section 83 (3) of the Evidence Act, 2011 was not raised during the trial, nor was leave sought by the Appellant to raise same as a fresh issue in this appeal. Learned counsel then cited the cases of Incar Nig. Plc. v. Bolex Enterprises (Nig.) (2001) FWLR {pt. 58) p. 1187; Oshatoba v. Olujitan (2000) 5 NWLR (pt. 655); Duru & Akpene v. Barclays Bank of Nig. Ltd (1977) 1 S.C. p. 47 and Ohochukwu v. AG. Rivers state & Ors (2012) 3 S.C.M, p.210, to submit that, the law is settled that, a point of law not made an issue in the trial Court cannot be raised on appeal, save with leave of the Appellate Court.

Learned counsel for the Respondent went on to submit that, by Paragraphs 13 and 14 of the statement of claim filed on the 22/8/08, the Respondent had raised the issue of the Forensic Report and the discovery therein of the

sum of N178,858,622.12, being wrongful entries debited by the Appellant into the Respondent’s account. That, the Appellant joined issue with the Respondent and the fact pleaded to the amount of N178,858 ,622.12 by its pleading in Paragraphs 3 and 16 of the statement of Defence and counter-claim. Learned counsel for the Respondent then submitted that, the case of the Respondent was anchored on the findings of the PW2 in Exhibit ?F?, which contains detailed analysis of the various wrongful entries and deductions by the Appellant in the Respondent?s account amounting to a huge sum of N178 ,858,622.12. That nine (9) wrongful entries and deductions to the Respondent’s account were identified in the said Exhibit ‘F’. That, PW2 being the maker of the said report was called upon to substantiate the facts stated therein. Learned counsel then submitted that, CW2 having adopted his written statement on oath as his evidence in the suit, coupled with the tendering and admission of the Report as Exhibit ‘F’ in line with Order 32 Rule 3 of the Oyo State High Court (Court procedure) Rules, 2010, is taken to have given his evidence and proved the content of

Exhibit ?F?.

Learned counsel for the Respondent then contended that, PW2 was only permitted to confirm, during his examination-in-chief, the making of his written statement and the tendering of the Report he has referred to in the deposition. That, it would be offending Order 32 Rule 3 of the High Court Rules (supra), for the PW2 to go ahead and elaborate on each of the nine (9,) wrongful entries he had itemized in Exhibit ?F?. That, Order 32 Rule 3 has imposed a duty on counsel to cross-examine a witness in order to test the veracity of the evidence he has tendered. Learned counsel then submitted that, Pw2 was however not cross-examined by the Appellant on his findings in Exhibit ‘F’ and so the learned trial Judge was left with no choice than to accept the findings in Exhibit ?F? as proved. The case of Odulaja v. Haddad (1973) 11 S.C. p. 357 and other cases were cited in support, and to further submit that, apart from the fact that the Appellant faired to impugn the findings in Exhibit ?F? the Respondent was able to establish the wrongful entries debited by the Appellant in the Respondent’s account. That the

admission of some of the wrongful entries by DW1 during cross-examination corroborated the findings of PW2 as stated in Exhibit ?F?. Learned Counsel then listed the wrongful entries admitted by DW2 as:
(a) On the 24/8/1999, the Appellant reversed the COT and VAT wrongly debited into the Respondent?s account, but failed to reverse the interest element thereon.
(b) The Appellant wrongfully debited and illegally charged management fees which were not agreed upon.
(c) That the Appellant wrongfully debited a repayment loan 13 times instead of 10 times.
(d) That the Appellant did not inform the Respondent about changes in the interest rate charged on the account.

On the issue of the Respondent?s claims being special damages, learned counsel for the Respondent contended that, the reliefs claimed by the Respondent in Paragraph 22 of the Statement of Claim are for monetary claim arising from discoveries made by PW2 in the running of the Respondent?s account with the Appellant. That, the claims are not damages arising from any breach of contract nor are they in the nature of general or special damages. Furthermore,

that the Respondent did not seek any compensation as a result of any loss in consequence of a wrong done by the Appellant, and therefore need not specifically plead same in the statement of claim. That the claims of the Respondent were well itemized in Exhibit ?F?, and which claims are just to recover what was unjustly debited to the Respondent?s account. It was therefore submitted that, the contents of Exhibit ‘F’ pertaining to the wrongful debits to the Respondent?s account was sufficiently pleaded and evidence thereon led, to which the learned trial Judge rightly ascribed probative value.

It is further submitted by learned counsel for the respondent that, since the Appellant was unable to challenge the findings of PW2 in Exhibit ‘F” the learned trial Judge had no choice than to rely on same as proof of the Respondent’s claims. We were accordingly urged to resolve this in favour of the Respondent.

?As stated earlier, the Appellant filed a Reply Brief. Therein, learned counsel for the Appellant contended that the Respondent’s argument that the PW2’s qualifications and experience had been given during cross-examination has no

basis in law. He then cited the case of Gajol v. I.N.E.C. (No. 2) (2012) 11 NWLR (pt. 1311) p. 218 at 233 Paragraphs F – G and Punch Nigeria Ltd v. Eyitene (2001) 17 NWLR (pt.741) p. 228 to submit that, such evidence was not pleaded, and that evidence led on such facts which were not pleaded would go to no issue,

It was also contended by learned counsel for the Appellant that, the Respondent did not address the issue of probative value of Exhibit ‘F’, and went on to submit that, the fact that Exhibit ‘F’ was admitted without objection cannot prevent the Court from testing its probative value, veracity and credibility or conclusiveness. The cases of Adeleke v. Iyanda (2001) 13 NWLR (pt.729) P.1 at 20 Paragraphs B – D; Akingbehin Tinubu v. Khalil & Dibbo Transport Ltd (2000) 11 NWLR (pt. 677) p, 171 at 185 Paragraphs B – C and Ogunyade v. Oshunkeye {2007} 15 NWLR (pt. 1057) p. 218 at 246 – 247 Paragraphs H ? B were cited in support.

?On Order 32 Rule 3 of the Oyo State High Court (Civil Procedure) Rules, 2010 it was contended by learned counsel for the Appellant that, the fact that the Rules enjoins a witness to confirm his written deposition

cannot absolve the party, seeking to rely on the evidence from the duty to prove its case as required by the law. That, by relying on Order 32 Rule 3 of the High Court (Civil Procedure) Rules, 2010, the Respondent merely tendered Exhibit ‘F’ but failed to sufficiently demonstrate by oral evidence the lapses in the account and explain the entries by properly linking the alleged areas of wrongful debits in the Respondent’s account and showing arithmetically how the overall COT and VAT debits amounted to N178,858,622.12. Furthermore, that the Respondent did not prove that the credit in the accounts have concluded the repayment of its indebtedness/ but only considered the debits column of the account. The cases of Agbaosi v, Imerbore (2014) 1 NWLR (pt.1389) p. 556 at 599, A – C were then cited to submit that, the burden was on the Respondent to prove the Over-debiting of her account and that, that burden does not shift.

On Section 83(3) of the Evidence Act, the Appellant contended that, it can rely on Section 83(3) of the Evidence Act, 2011 without the leave of this Court. That the point is a substantial point of law arising from the record, and which can be

raised at any time, even by the Court suo motu. The case of Ukaegbu v, Nwololo (2009) 3 NWLR (pt. 1127) p. 194 at 222 Paragraphs, G- H was cited and relied upon. That, the order of the Court directing the Appellant to furnish the Respondent with a true and accurate Statement of Account, while at the same time adjudging the Appellant to pay the Respondent N178,858,622.12, has created an anomalous situation. It was therefore submitted that, the apparent conclusion is that the monetary claim awarded, was arrived at upon reliance on the inconclusive evidence of PW2 and Exhibit ‘F’, and therefore it was wrong in law for the trial Court to have admitted and relied on Exhibit ‘F’ which was unilaterally made at the instance of the Respondent during the pendency of the action without an order of the Court and the input of the Appellant.

?On the issue of special damages, learned counsel for the Appellant contended that the reliefs claimed by the Respondent was for monetary claim for phantom and excessive debit entries debited to the account of the Respondent bv the Appellant, as itemized in Exhibit ?F?. That, a loan transaction is in a class of

contractual relationship, and the monetary claims arising from what PW2 purportedly discovered and expressed in Exhibit ?F? is in the realm of special damages which ought to have taken root in the pleadings in the various categories of COT and VAT wrongful debits. The case of Oyediran v. Alebiosu II (1992) 6 NWLR (pt. 249) p. 550 at 556 Paragraphs G-H was then cited to submit that, those phantom and excessive debit entries are nowhere pleaded in the Statement of Claim, and reference to them in Exhibit ?F? will not mean that they were pleaded and proved.

probandi and therefore, the Respondent on record, who was the claimant at the trial Court, had the burden of proving that he was entitled to the reliefs sought. Thus, in the case of Akinfosile v. Ijose (1960) SCNLR p. 447 at 453, Abbot; FJ held that:
?The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading.?

That being so, it is only when the plaintiff, who has asserted, has discharged the legal or ultimate burden cast on him by law, there will be nothing for the defendant to react to by way of defence. In other words, where the plaintiff has failed to adduce satisfactory evidence to prove that which he has asserted, there will be no duty on the defendant to adduce evidence because, the plaintiff is to succeed on the strength of his own case and not the weakness or absence of evidence from the defendant. See Famuroti v. Agbeke (1991) 5 NWLR (pt. 189) p.1; Reynolds Construction Co. Ltd v.

Okwejiminor (2001) 15 NWLR (pt. 735) p. 87; Onifade v. Oyedemi (1999) 5 NWLR (pt. 601) p.54 at 56 and Tangale Traditional Council v. Fawu (2002) 17 NWLR (pt. 742) p. 293.

A perusal of the reliefs sought by the Respondent in Paragraph 22 of the statement of claim would show that, reliefs I and II are the principal reliefs, and the other reliefs take root from them. Those principal reliefs are declaratory reliefs. That being so, like in all actions where declaratory reliefs are sought, the burden of proof, is always on the plaintiff or claimant who seeks the declaratory reliefs. In doing so, he must succeed on the strength of his own case and not due to any weakness of the defence; not even on admissions on the part of the defendant, even though the plaintiff may rely on a weakness in the defence which supports his claim. Thus, my Lord, Fabiyi, JSC in the case of I.N.E.C v. Atuma & Ors. (2013) 11 NWLR (pt. 1366) p. 494 at 521 said:
“It has been stated in clear terms that the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted

even on admission by the Defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. A Court does not grant declaration of right either in default or admission without taking evidence and being satisfied that the evidence led is credible.?

By the above stated principles therefore, the law places the burden of proof on the plaintiff, or respondent as in this case, to prove her case by credible evidence, whether the defendant (Appellant herein) called evidence or not. The reliefs could therefore not be granted without credible evidence being called. The duty of the trial Court was to evaluate the evidence so as to ascertain whether the plaintiff(Respondent herein) had by the evidence adduced by its discharge the onus of proof cast on it by law. That is the primary and pre-eminent duty of the trial Court. This Court will only interfere where it finds from the printed records that the trial Court failed to properly evaluate the evidence presented before it, and which finding led to a perverse decision or miscarriage of justice. Such a perverse decision may occur where the trial Court took into account matters

which it ought not to have taken into account or where it shut its eyes to cogent facts before it. See Okonkwo v. Okonkwo (2010) 14 NWLR (pt. 1213) p. 228; Ali v. Salihu (2011) 1 NWLR (pt. 1228) p. 227 and Nikagbatse v. Opuye (2010) 14 NWLR (pt. 1213) p. 50.

Now, the evidence on record show clearly, that prove of the Respondent?s case was essentially centred on the evidence of PW2 and Exhibit ?F? tendered through him (PW2). The said PW2 is said to be a Managing Consultant with SAMMY LOTUS ASSOCIATES, a firm of Finance, Banking and Management Consultants. He was commissioned by the Respondent, sometimes in May 2008 to audit its banking transactions with the Appellant. He carried out the audit and submitted a report to the Respondent and it is based on the findings in the report, which was tendered and admitted in evidence, that the Respondent based his claim of N178,858,622:12, which was granted by the court. Thus, the evidence of PW2 and the report (Exhibit ?F?) formed the basis of the judgment of the trial Court. To clearly bring out the position taken by the learned trial judge I find it pertinent to reproduce that portion

of the Judgment I find relevant to the issue at hand. Thus the learned trial Judge had stated at page 232 of the Record as follows:
?In the present case, I noted that the evidence of CW2 and particularly Exhibit ?F? which is the expert report remains unchallenged. The evidence of CW2 I note is unchallenged and uncontroverted and there is no other superior expert opinion countering same. I therefore hold that this Court is bound to act on same.?

The Appellant therefore contends that the learned trial Judge erred when he held that PW2 was an expert in banking and that Exhibit ‘F? is an expert?s report.

?The issue to be determined now is whether or not PW2 is an expert who is permitted by the provisions of the Evidence Act, to give his opinion on the subject matter in dispute and upon which he prepared Exhibit ‘F? (the Report), which formed the basis of the judgment of the trial Court. In other words, whether PW2 who carried out the audit report of the banking transactions of the Respondent with the Appellant, and produced ?a Report” is an expert within the contemplation of Section 68 of the Evidence

Act, 2011, competent to embark on the analysis of the banking documents and give his opinion thereon. Generally, in law, and as stipulated by Section 67 of the Evidence Act, 2011, the opinions of any person as to the existence or non-existence of a fact in issue or relevant to the fact in issue, is inadmissible. One of the exceptions to that provision is as stipulated in Section 68 (1) and (2) of the Evidence Act, 2011 which stipulates that:
“68. (1) when the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art or as to the identity of handwriting or finger impressions, the opinions upon that point of persons specifically skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible.
(2) Persons so specially skilled as mentioned in Subsection 1 of this section are called experts.?
?It is obvious that the above provision of the Evidence Act does not state who an expert is, nor does it provide the criteria for determining or ascertaining who qualifies as an expert. In practice, the Courts have

tended to rely on the educational or practical experience of the witness put forward as an expert. It is therefore the duty of the Court to decide, based on the evidence before it whether or not a witness is sufficiently skilled or knowledgeable in the field he testifies on as to qualify as an expert in that field. Evidence to establish that is usually elicited from the witness during examination-in-chief in areas such as, his academic qualifications, professional training or practical experience in the field, See A.P.P.P. v. Usman (2008) 12 NWLR (pt. 1100) p. at 72 – 73 Paragraphs G ? C and Ngige v. Obi (2006) 14 NWLR (pt, 999) p. 1 at 143 Paragraphs G-H.

In the instant case, the PW2 only stated in his written statement on oath that he is a Managing Consultant in Finance, Banking and Management. He however stated when testifying in his evidence-in-chief at page 113A of the record of appeal, that he is an Accountant specializing in Finance, Banking and Management. Under cross-examination he reiterated that he is an Accountant. He stated at page 113B of the Record that:
?I read Accountancy in West Minister College London, I am a Chartered

Accountant. I hold a Certificate of Cost and Management Accountancy and Chartered Accountants of Nigeria.?

No effort was made at the trial to establish that the PW2 does not hold those qualifications. It is not correct, as contended by the Appellant, that the Respondent should have pleaded those qualifications stated above. By pleading that he commissioned a consultant to audit her banking transactions with the Appellant, I am of the view that sufficient notice had been given to the Appellant that the Respondent would be relying on the Report of such a consultant. The qualifications and experience of the PW2 are matters of evidence which need not to have been pleaded. I therefore hold that, the learned trial Judge was right when he held the PW2 to be an expert, competent to give expert opinion on the matter in issue.

Now, learned counsel for the Appellant had also attacked Exhibit ?F’ on the ground that it was made when proceedings were anticipated or had been commenced, which is in breach of Section 83 (3) of the Evidence Act, 2011. Section 83 (3) of the Evidence Act, 2011 stipulates that;
?Nothing in this section shall

render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.?
By this provision therefore, for a statement made by a person to be made inadmissible, such a statement must have been made:
(a) By a person interested;
(b) When proceedings were either pending or anticipated; and
(c) The statement must involve a dispute as to any fact which the statement might tend to establish.
The issue of whether a person is an interested person has always agitated the minds of our Courts. However, several judicial in roads have been made on the issue, both by the Supreme Court and this Court. Thus, in the case of Hassan A. Abdullahi v. Umar Y. Maitsidau & Ors (2011) 3 NWLR (pt. 1233) p. 55 at 71-72. My lord, Okoro, JCA (as he then was) citing Alhaji Musa Ya?u v. Maclean D.M. Dikwa (2001) 8 NWLR (pt. 714) p. 127 held that:
, this Court held that in order to ascertain or determine, whether the maker of a document sought to be tendered is a person interested in the litigation

under Section 91 (3) of the Evidence Act, the circumstance surrounding the making of the document and whether the maker can be said to have an interest of a personal nature, must be examined and ascertained. A person who is not personally interested in the result of litigation cannot be described as one ?interested? in the proceedings. A person under official assignment or statutory duties and who has no personal benefit from the outcome of the litigation cannot be said to be a person interested under Section 91(3) of the Evidence Act
It is clear here that the maker of Exhibit ?F? in view of the definition of ?maker of the statement? contemplated by Section 83(4) of the Evidence Act, 2011, is the PW2. It is clear that Section 83 (3) has been enacted to render any statement made in a document inadmissible, where such document is prepared by an interested party for the purpose of defeating the course of Justice. This is because, a maker of a document who knows about the pendency of a dispute or anticipates that a dispute might arise may be tempted to depart from the truth by reason of the interest he has

in the matter. See Anyaebosi v. R.T. Briscoe (Nig.) Ltd (1987) 3 NWLR (pt.59) p. 84; Abadamosi v. Kabo Trans. Ltd (2000) 1 NWLR (pt. 668) p. 243; Ugwu v. Ararume (2007) 8 NWLR (pt. 1048) p. 367; and N.S.I.T.F.M.B v. klifco Nig. Ltd (2010) 13 NWLR (pt. 1211) p. 307. To determine whether or not the maker of a document is a person interested, the Court would consider the nature of the duty performed, so as to know if he had a temptation to depart from the truth on one side or the other; or whether he was swayed by personal interest, or was detached judicially, impartially and independently. Thus, in the case of Apena v. Aiyetobi (1989) 1 NWLR (pt. 95) p. 85 at 94, this Court held that any expert in his field of knowledge who makes a statement in any form in respect off a matter in Court, at any stage of the proceeding, is generally regarded as a person who has no temptation to depart from the truth as he sees it from his professional expertise.

?In the instant case, it is obvious on the evidence on record that, PW2 was commissioned by the PW1 who is the managing Director of the Respondent, to look into the operation of the loan account of the Respondent with

the Appellant. According to the PW2, he carried out the assignment he was commissioned to do and submitted a report. Thus, apart from, perhaps his legitimate fees for the job done, there is nothing on record to show that PW2 had any other pecuniary or material interest in the outcome of this proceedings as to suggest that he was tempted or could have been tempted to pervert the result of the suit. Though it is obvious from the evidence on record that PW2 was commissioned and made Exhibit ?F? when the Respondent had instituted this action, there is nothing to show that Exhibit ?F? was made by a person interested. On that score the contention of the Appellant that Exhibit ?F? was made in breach of Section 83(3) of the Evidence Act, 2011 cannot be sustained. I therefore hold that Exhibit ?F? was properly admitted. In any case, the said Exhibit was admitted without objection. The only way the Exhibit can be rejected at this stage is where it is inadmissible under the Evidence Act. The document (Exh. ?F?) is admissible if certain conditions are satisfied, and the Appellant having not objected at the time

it was tendered, cannot raise the objection at this appeal stage. See Raimi v. Akintoye (1986) 3 NWLR (pt. 26) p. 97, Abolade Alade v. Salawu Olukade (1976) 1 All N.L.R (pt. 1) p. 172 and Ezomo v. Oyakhire (1985)1 NWLR (pt. 2) p. 195.

Now, learned counsel for the Appellant had contended that, the monetary claim arising from what PW2 purportedly discovered and expressed in Exhibit ?F? is in the class of special damages which ought to have been specifically pleaded. Special damages are such claims as the law will not infer from the nature of the act complained of. In other words, special damages do not flow from the act in the ordinary course of events. They are exceptional in character and therefore must be specifically and specially claimed and proved strictly. Examples of such claims are out of pocket expenses or loss of earnings incurred, calculated to the date of trial, and are therefore capable of exact mathematical calculations. See Odulaja v. Haddad (1973) 11 S.C (Reprint) p. 218; Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (pt. 658) p. 668 and Neka B.B.B. Mfg. Co. Ltd v. A.C.B. Ltd (2004) 2 NWLR (pt. 858) p. 521.

In the instant case, the claim of the Respondent leading to the award of N178,858,622.12 are as pleaded in Paragraphs 14,15 and 22 (iv)of the

Statement of Claim, which I reproduce below:
“14. By a report, it was discovered that between 1995 and 2008, the Defendant had wrongly debited the account of the plaintiff to the sum of N178,858,622.12k. The plaintiff pleads the report account.
15. Sometimes during the operations of the plaintiff?s with the Defendant, the plaintiff complained to the Defendant that phantom debits were being debited into its account. The plaintiff pleads the letter of complaints.

It is on the basis of the above pleadings that the Respondent claimed.
?The sum of N178,858,622.12k (One Hundred and Seventy-Eight Million, Eight Hundred and Fifty-Eight Thousand, Six Hundred and Twenty-Two Naira, Twelve Kobo) being the amount representing excessive and wrongful charges, illegal entries excessive COT, phantom debits made by the Defendant into the plaintiff?s account and due to the plaintiff.?

The issue to be determined now is, whether such claims are in the nature of special damages. It is my view that, a claim would be said to be special; if it is one that is not left to speculation, approximation or estimate. It is one that is easily

discernable and thus quantifiable by mathematical calculation. In the instant case, the claim of the Respondent may not in the strict application of the law be classified as special damages arising from a wrong done to the Respondent by the Appellant. The claims in my view are in the nature of a liquidated money demand. Thus, in the case of Maja v. Samouris (2002) 7 NWLR (pt. 765) p. 78, the Supreme Court defined ?a liquidated demand? as a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as mere matter of arithmetic without any other or further investigation. That, whenever the amount to which plaintiff is entitled can be ascertained by calculation or fixed by scale of charges or other positive data, it is said to be ?liquidated? or made clear. On the other hand, the Black’s Law Dictionary (8th Ed.) at p.264 defines ?liquidated claim? as a claim for an amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties agreement. On these definition therefore, it is my

view, which I hold, that the claims of the Respondent are such that are capable of being ascertained as a matter of arithmetical calculations. The findings of PW2 in Exhibit ?F? attest to that fact. See also Sojecon Engineering Ltd v. Stanbic Bank Nigeria Limited (2011) LPELR ? 4967 (CA) and U. P. S. Ltd v. Ufot (2006) 2 NWLR (Pt. 963) p. 1.

The Respondent?s claims being liquidated claims; the Respondent had a duty to plead with particulars which explain what he is claiming and give details of how those claims arose. In other words, in this type of claim, just like in a claim for special damages, the plaintiff must specifically plead with relevant particulars and also lead credible evidence thereon. In other words, a liquidated claim, as in the instant case, must be specifically pleaded and strictly proved. In the instant case, I agreed with learned counsel for the Appellant that, the Respondent had a duty to plead and lead evidence on the following facts:
(a) The total amount of the loan it has taken from the Appellant and the amount it has repaid including the interest he has paid;
(b) That it has liquidated the entire

loan plus the agreed interest thereon;
(c) That if the figures are calculated or computed, it had repaid more than it ought to pay on the entire loan and the interest chargeable thereon;
(d) That it has specifically y paid into its loan account the sum of N178,858,622:12 over and above what it ought to have repaid in order to liquidate the loan including the interest thereon; and
(e) That if all the sums said to have been wrongfully and illegally debited into its account, if calculated would amount to the sum of N178,858,622:12 claimed

A careful reading of the statement of claim and the written statement of PW1 and PW2 would show that, those particulars as enumerated above were not pleaded nor evidence led thereon. In other words, the statement of claim and evidence red are bereft of those particulars.

As stated earlier in the course of this judgment, the learned trial judge relied heavily on the testimony of PW2 and Exhibit ?F? prepared by the said PW2, as prove of the Respondent’s claim. The Appellant has argued therefore that, the learned trial judge erroneously accorded probative value to the said Exhibit ‘F’ on

the ground that same was admitted without objection. It is not in doubt that Exhibit ‘F’ was tendered and admitted in evidence without any objection by the Appellant. It should however be noted that, a document which is tendered in Court is the best evidence of its contents and therefore no oral evidence will be allowed to discredit or contradict the contents of such document, save where fraud, mistake or other illegality is alleged. In other words, where a document is duly pleaded, tendered and admitted in evidence, it becomes the best evidence of its contents and therefore speaks for itself. See Olanleye v. Afro Continental (Nig.) Ltd (1996) 7 NWLR (pt. 458) p. 40; Anyaniru v. Uzowuaka (2009) 13 NWLR (Pt. 1159) p. 445 and Igbeke v. Emordi (2010) 1 NWLR (Pt. 1174) p. 48.

However, the fact that a document has been admitted in evidence does not necessarily mean that it must automatically be attached or accorded probative value or weight. The admissibility of a document and the evidential value ascribable to it are, therefore two different things, See Agballah v. Chime (2009) p. 89 at 115. It therefore means that, tendering of documents without adducing

evidence, which link the document with the particular complaint of the claimant is fatal. This is because, it is not the duty of the Court to examine the documents, outside the Court, and tie them with the complaints of the claimant. The examination of documents by a Court in the privacy of its chambers, must therefore be limited to examination of facts which had been demonstrated and tested in cross-examination in open Court. Thus, in the case of George Abi v. C.B.N. & Ors. (2012) 3 NWLR (pt, 1286) p. 1 at 28- 29, Nwodo, JCA (of blessed memory) held that:
“Where a document is tendered in evidence and it is intended in proof of specific point, the duty of the party who wants to relate an Exhibit to an aspect of his case is to say so explicitly and not leave the Court to investigate the contents of the document. This is because, the admitted documents useful as they could be, would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport.”
Similarly, My Lord, Rhodes-Vivour, JSC in Senator Julius A Ucha & Anor, v. Chief Martin N. Elechi & Ors (2012) 13 NWLR (pt. 1317) p. 330

at 369, said:
“When a party decides to rely on documents to prove his case, there must be a link between the documents and the specific area(s) of the petition. He must relate each document to specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial Court. No Court would spend precious judicial time linking documents to specific areas of a party’s case. See ANPP v. I.N.E.C. (2010) 13 NWLR (Pt. 1212) p.549.”

?In the instant case, various documents were, tendered by the Respondent. The particular document in contest is Exhibit ‘F’. The records show that, at the trial, PW2 who prepared the said Exhibit ‘F’, which is titled “EXCESSIVE BANK CHARGES – PERONE NIGERIA LIMITED?, and through whom the document was tendered, adopted his Written Statement on Oath and proceeded to identity the document. Same was then tendered and admitted without objection as Exhibit ?F’. Thereafter he was crossed-examined. His attention was never drawn to the specific areas or complaints in respect of the wrongful debits or phantom charges alleged by the Respondent. It should be noted that, PW2 had deposed to a

written Statement which he adopted as his oral evidence in Court. The said statement is at page 27 of the Supplementary Record of Appeal. The said Written Statement did not disclose anything apart from stating that:
“Sometimes in May 2008 our firm was commissioned by the Claimant Company to audit banking transactions with the Defendant Bank. We carried out the audit and discovered the Defendant Bank had charged the Claimant Company excessive interest, made series of illegal and wrongful entries into the Claimants Account. All these findings are contained in our report dated the 1st of June 2008.?

It would be seen therefore that none of the entries in the Report (Exh. ‘F) Formed part of the Written Deposition of the PW2. The said Report was not made on Oath as it did not form part of the depositions of PW2. Though it may appear cumbersome, but the law requires the statements made in the Report to have been given on oath and thus forming part of the Written Statement of PW2 made an oath. If that is done, it would be taken as having been given in oral testimony.

Learned counsel for the Respondent had argued that by Order 32 Rule 3 of the

Oyo High Court (Civil Procedure). Rules, 2010, the Respondent was only required to plead and front-load Exhibit ‘F’. That having adopted his written Statement on Oath and tendered Exhibit ‘F’, the PW2 is taken to have given his evidence and proved the contents of Exhibit ?F?. Now Order 32 Rules 3 of the Oyo State High Court (Civil Procedure) Rules, 2010 stipulates that:
“The oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition?

Referring to the above cited rule of the Oyo State High Court, the learned trial Judge held that:
?One thing is certain the new rules only allow the witness to adopt his written deposition in Court and with the adoption it is taken to mean that he has given evidence-in-chief and all his depositions are taken as read. For any witness to do more than this i.e. apart from tendering of documents the act would be resisted by the opposing side. After adoption of his deposition the witness is then left to be cross-examined. I note in this instance

that CW2 was not cross ? examined in depth on Exhibit ‘F’. It is the duty of the Defence counsel to cross- examines the expert in order to raise a doubt as to the witness’s expertise- This they failed to do.?

By the above holding, I am of the view that, the learned trial Judge did not properly appreciate the purport of Order 32 of the Oyo State High Court Civil Procedure Rules (supra). The Rules had introduced the front loading practice. The front loading practice is the front – loading of documents together with the originating process. The documents front – loaded are the documents or copies or copies of documents to be relied upon by a party at the trial. The objective of front-loading of documents helps to discourage the filing of weak or frivolous cases. It also affords the parties the opportunity to assess and weigh the relative strength and weaknesses of their case and weakness of case and facilitates settlement out of Court and thus avoiding unnecessary litigation with the attendant expenses; it also helps avoid unnecessary dissipation of energy on irrelevant issues at the trial. It would be seen therefore that, the front-loading

of documents is not meant to relieve a party of the duty to prove documents relied upon by him by credible evidence. Thus, My Lord, Kekere-Ekun, JCA (as he then was) in the case of Adebisi Adegbuyi; Esq. & Anor v. Hon. Ramoni Olalekan Mustapha & Ors (2010) LPELR ? 3600 (CA) observed that:
?Front-loading is to ensure that there is no trial by ambush and to expedite the hearing. It is to enable the parties know not only the case they are to meet at the trial but also the oral and documentary evidence by which the case is proved. It affords the parties an opportunity at the pre-trial hearing session to object to certain documents at the earliest opportunity, to allow certain documents and/or to concede certain facts or issues were appropriate.?

That being so, the fact that a document has been referred to in the written Deposition of a witness, would not amount to proof of the contents of the documents. For a party to make out a case based on documents tendered, he must lead credible evidence which links the documents and the specific area(s) of his claim. See Olawuyi R. Tunji & Anor v. Elder David Bamidele

& Ors (2012) 12 NWLR (Pt. 1315) p. 477 at 491- 492 per Nweze, JCA (as he then was); A.N.P.P. v. I.N.E.C. (2010) 13 NWLR (pt. 1212) p. 549; A.C.N. v. Sule Lamido & Ors (2012) 8 NWLR (pt. 1303) p. 560 at 592; Alao v. Akano (2005) 11 NWLR (PT. 935) P. 160 and A.N.P.P. & Anor v. Umar A.T. Argungu & Ors (2009) 17 NWLR (PT. 1171) P. 445 at 462 per Ba?aba, JCA (of blessed memory). In the instant case, the PW2 did not mention, not even a word, in his written Statement on Oath, how he conducted his analysis, the tools or documents he used in making his analysis or the result of the analysis. He only stated that he did his work and issued a report. That cannot be taken to mean that the Report (Exh ?F?) formed part of the written deposition of PW2, which could be taken as his oral evidence once his written deposition was adopted. The result is that, Exhibit ?F? was merely dumped on the Court without any oral-evidence which tied the specific aspects of the Respondent’s claims with Exhibit ?F? and indeed, the other documents tendered by the Respondent.

?The Respondent would appear to argue that, PW2 being

an expert, his testimony was sufficient to prove the Respondent?s claim because the Appellant failed to cross-examine him in depth. It should be noted that even where a Report is prepared by an expert, Courts have been enjoined to be wary of giving high probative value to it, particularly where the report was prepared at the behest of a party. Thus, in A.N.P.P. v. Usman (supra) at p. 73 stated that:
“The Court must be wary of admitting a report prepared by an expert, not at the instance of the Court but at the behest of any of the parties to the dispute. Such a report should be taken with a pinch of salt. The existence of other relevant and credible evidence before the Court showing that the evidence of the expert is not or cannot be true will constitute a good reason for rejecting it. A trial Judge would be right to prefer credible evidence on a non-expert witness on an issue to the evidence of an expert on the same issue where the former is an independent witness whilst the latter prepared his evidence specifically for the case at hand on the direction of the party calling him.?

In the instant case, PW2 was commissioned to and did

prepare Exhibit ‘F’ after it (Respondent) had commenced her suit at the Court below vide writ of summons filed on the 24/4/08. Before then, there were series of communications between the Respondent and the Appellant wherein the Respondent admitted to being indebted to the Appellant in the sum of N26,231,102.25. Furthermore, the Respondent, after praying the Court to order the Appellant to furnish it (Respondent) with a true and accurate statement of its account, the Respondent jumped the gun and commissioned the PW2 to do what it had prayed the Court to order, thus contriving a claim against the Appellant.

I am of the view that the analysis conducted by PW2 of the Account of the Respondent is not credible. Under cross ?examination; the PW2 admitted clearly that his investigation is not conclusive as it is not based on a full and complete record of the loan transaction between the Appellant and the Respondent. To support this view, I hereby reproduce the evidence of PW2 given under cross-examination as follows:
“To prepare Exhibit ?F?, I went through the statement of account given to me by the claimant and a credit note and I saw

one facility contract. The photocopy of the facility contract is in page 49 of the report. As far as I am concerned with what I saw it is a very comprehensive report.
I did not know how many times the claimant applied for facilities, but what I saw I queried in my report. I was not engaged to look into the total amount paid in by the claimant to the defendant from when he started taking facilities from the defendant. I would not know that the total amount paid in by the claimant to the defendant has amounted to N178 million.?

It is obvious that PW2 who prepared Exhibit ‘F? used only one facility contract between the parties, even when there is abundant evidence which the Respondent admitted, that the Respondent took about six (6) facility contracts from the Appellant. No wonder, the PW2, the expert, was unable to tell how much the Respondent had taken as loan and how much it has repaid. He could not also vouch that the Respondent had paid into her loan account with the Appellant the sum of N178 million. The PW2 was therefore not certain whether his report is true and accurate. The PW1 also could not vouch whether the Forensic report is

comprehensive. He could not also confirm if the Respondent had paid into the loan account up to the sum of N178 million.

It would be seen therefore, that the evidence of PW2 and the “Forensic Report? (Exhibit ?F?) he prepared is inconclusive. The Respondent?s claim was not strictly proved. The learned trial Judge therefore erred in relying on the testimony of PW2 and Exhibit ?F? in finding for the Respondent. The evidence led in proof of the Respondent?s claim as presented before the Court below is neither credible nor conclusive. In that respect, I resolve this issue in favour of the Appellant.

I now proceed to consider whether the Appellant proved its counter claim as pleaded. On this issue learned counsel for the Appellants contended that, the Respondent admitted owing N26,231,102.25 as at 24/8/2005, both in its pleading and evidence in Court. Paragraph 9 of the Statement of Claim at page 3 of the Supplementary Record of Appeal and Paragraphs 4 and 5 of the Reply and Defence to the Counter-Claim were cited in support. That the attempt to withdraw the admission when it tendered Exhibit ?F?, after

the commencement of the action, deprived the Respondent?s denial of credibility. That, having laid all its eggs in the basket of evidence of PW2 and Exhibit ?F? which has been shown to be incredible and inconclusive, the Respondent is only left with the potency of his admission.

Learned Counsel for the Appellant went on to cite the cases ofHabib Nig. Bank Ltd v. Gifts Unique (Nig) Ltd (2004) 15 NWLR (pt 896) p. 408 at 432 Paragraphs B-C and F-H and Section 75 of the Evidence Act, 2011 to submit that, an admission is binding, and needs no further proof. That in the circumstance, the Appellant need not tender any statement of account, and the only way the Respondent could have shown that it is not liable to pay N26,132,976.14, is by showing that since the date of admission, it has paid not only the entire sum but also interest, by computing same arithmetically to the satisfaction of the Court. The case of Bank of the North Ltd v. Memudu Adigun Oniyo (2002) 20 W.R.N p. 83 at 95-96, Section 137(1) and 139 of the Evidence Act were then cited to submit that, when a debtor admits the existence of a loan but contends that he has liquidated

same, he has the burden to prove that he has liquidated the loan. That, even though the Respondent pleaded that it has repaid the loan, it did not tender letters and acknowledgment receipts of payment made post admission, linked directly by evidence, to the payment of the entire sum due and interest thereon. That, no evidence was led linking the payment slips with the repayments on the loan by way of arithmetical calculations. The case of First Bank of Nigeria Plc v. Mamman Nigeria Ltd. (2001) 3 W.R.N. 58 was then cited to submit that, the duty was therefore not on the Court to embark on a voyage of discovery in calculating whether the indebtedness has been liquidated. Furthermore, that with the collapse of Exh. ?F? and the evidence of PW2, and the prospect of repayment of the sum admitted, the learned trial Judge ought to have found that on the balance of probabilities, the Appellant is exdebito justitiae, entitled to judgment upon its Counter-Claim based on the admission.

?The response of the Respondent?s is at pages 16-17 of the Respondent?s Brief of Argument. Therein, it was contended that, the Appellant had the duty to

establish its case through credible evidence. It was therefore contended that, the reliance on the admission of the debt by the Appellant cannot stand in view of the evidence adduced by the Respondent in respect of the contents of Exhibit ?F? which revealed wrongful debits by the Appellant into the Respondent?s account. That, the Appellant having submitted during cross-examination that there were irregularities, wrongful debts and several other irregularities and infractions, serious doubt has been created as to the proper management of the account and the authenticity of the amount stated as being owned by the Respondent.

Learned Counsel for the Respondent went on to submit that, Exhibits K1-K44 tendered by the Appellant in proof of her Counter-Claim, have been discredited by the Respondent, and therefore no more credible in proving the Appellant?s Counter-Claim. That, the Appellant failed to lead cogent and compellable evidence in proof of its Counter-Claim, and therefore the learned trial Judge had no choice than to evaluate the evidence before him and accord it probative value. The cases of Mogaji v. Odofin (1978) 4. S.C. p. 81; Christopher Okolo v. Eunice Uzoka (1978) 4 SC p. 72 at 86 and

Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) p. 432 at 451; were cited to urge us to hold that, the learned trial Judge was right to have dismissed the Counter-Claim.

Now, the pleadings of the Appellant in respect of the Counter-Claim which I find germane to the resolution of this issue are Paragraphs 37, 38 and 39 of the Amended Counter-Claim. Therein, the Appellant pleaded as follows:
?37. The Defendant had written several letters of demand for the repayment of the facilities granted to the Plaintiff and the Plaintiff accordingly replied to some of the letters wherein he voluntarily admitted owing the Plaintiff.
38. As at 24th August, 2005 the Plaintiff voluntarily accepted the sum of N26,231,102.15 as full and final payment of the facility granted to the plaintiff.
39. Despite the admission that it is indebted to the Defendant to the tune of N26,231,102.15 as and despite the demands made for the payment therefore by the Defendant, the Plaintiff has failed and/or neglected to repay the loan to the Defendant up till now.?

The Respondent, as Plaintiff, had filed a Defence to the Counter-Claim. Same is at pages 103-104 of the

Records. The only relevant pleadings denying the Appellant?s Counter-Claim are in Paragraphs 4 and 5 of the said defence to Counter-Claim. They aver that:
?4. The Plaintiff avers that at the time, it agreed to pay the sum of N26,231,102.25k, it had liquidated the debt it owed the Defendant.
5. The Plaintiff became aware that it was no longer owing the Defendants on the 1st of June, 2008, when the consultant report was submitted to it.?

A literally interpretation of the respondent?s case against the Counter-Claim is that, it is true that it had admitted to owing the sum claimed by the Appellant, but under the misapprehension that it was truly owing and that with the submission the Consultant?s Report (Exhibit ?F?), it has now realized that it ought not to have made the admission. Now, the facts on record as can be gleaned from the various correspondence between the Appellant and the Respondent show clearly that the Respondent had unequivocally admitted to owing the amount claimed by the Appellant, and had severally pleaded with the Appellant to reschedule the loans(s) so as to give it favourable terms of

repayment. That was the position when the Appellant decided to call in the loan and began the process of selling the mortgaged property so as to satisfy the debt due. The Respondent then rushed to Court with the sole aim of stopping the auctioning of his mortgaged properties. In the process, he filed Affidavits in Support of an Exparte Motion, and a Motion on Notice seeking for an Interlocutory Injunction. The Respondent then commissioned PW2 to audit her account with the Appellant, and which audit produced Exhibit ?F?. It is clear therefore, the strength of the respondent?s defence to the Counter-Claim is Exhibit ?F?.

Now, it had been found that Exhibit ?F? has no probative value in proof of the Respondent?s Claim. The logical corollary of that is that, such Exhibit cannot also proffer a valid defence to the Counter-Claim. Having read the pleadings and evidence led in this case, I do not see how the isolated instances of reversed interest on COT and VAT and debiting a repayment loan 13 times instead of 10 times could have any impact on the Appellant?s claim of N26,231,102.25. At least the Respondent

did not demonstrate before the Court how the Appellant?s claim could be affected. The issues of management fees charged and failure to inform the Respondent of charges in the interest rate charged on the account were never pleaded. These are specific facts which needed to be pleaded; and having not been pleaded, evidence thereon elicited during cross-examination are not admissible. See Buhari v. Obasanjo (2005) 2 NWLR (pt 910) p. 241 at 483 and Ojoh v. kamalu (2005) 18 NWLR (pt. 958) p. 523.

Having found as above, I am of the view that the learned trial Judge erred when he failed to recognize and apply the effect of the admission of the Respondent. It is the settled law that admitted facts should be taken as established. It is therefore unconscionable for a party to approbate and reprobate. The Respondent having admitted the debt owed by it to the Appellant, the only way it could extricate itself from the Appellant?s Claim was to lead credible, cogent and positive evidence that it had repaid the loan. The Respondent could do that by leading evidence on the amount it had repaid, and whether the whole or part only of the debt has been

liquidated. Indeed, the Respondent neither pleaded nor led evidence on that. It pleaded that it had repaid Ten Million Naira (N10,000,000.00) but failed to tender evidence of such repayment. The several payment slips and vouchers tendered and admitted in evidence were left unattended, as no evidence was led to link them with the amount of repayment made. Some of those slips and vouchers are so faint that it is not possible for the Court to decipher their contents.

On the whole therefore, I am of the view that, the learned trial Judge erred when he dismissed the Appellant?s Counter-Claim. On the admission of the Appellant, the Counter-Claim had been established. Accordingly, I hereby set aside the judgment of the Court below dismissing the Counter-Claim of the Appellant. The Counter-Claim has been proved and is hereby granted. I therefore order as follows:
1. That the Respondent shall pay the Appellant the sum of Twenty-Six Million, One Hundred and Thirty Three Thousand, Nine Hundred and Seventy-Six Naira (N26,133,976.14) being outstanding debt due to the Defendant/Appellant from the Plaintiff/Respondent in respect of overdraft facilities

granted to the Plaintiff/Respondent by the Defendant/Appellant.
2. I award 22.5% interest on the outstanding balance of N26,133,976.14 (Twenty-Six Million, One Hundred and Thirty-Three Thousand, Nine Hundred and Seventy-Six Naira, Fourteen Kobo) form the 29th August, 2007 till date of this judgment.
3. I award 10% interest on the judgment sum from the date of this judgment till the judgment sum is being fully satisfied.
4. I award Fifty Thousand Naira only (N50,000.00) as the cost of this suit.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have the privilege of reading the draft of the judgment of my learned brother Haruna Simon Tsammani JCA. I agree with the reasoning and conclusions reached by my lord and wish to support it with a few words.

The learned trial Judge was wrong to have held that the Appellant was liable to pay the Respondent a whopping sum of N178,858,622.12 on the ground that the evidence of the expert witness of the Respondent PW2 was not challenged. Exhibit F, the evidence tendered by the witness was merely dumped on the Court. Was the Court to simply accept it just like that? Was the Court

expected to work out the basis of arriving at the huge sum claimed in the closet of the chambers? The answer to these questions will have to be no.

It is the case of the Respondent that the appellant owed it the humongous sum. The Respondent must prove it by showing that it actually paid that sum to the appellant. This the Respondent must do by not only tendering a statement of account but by going on to demonstrate through evidence, the entries in such statement of account in order to show how the amount claimed was arrived at. See Co-operative Bank Ltd v. Otaigbe (1980) NCLR 215, Yusuf v. African Continental Bank (1986) 1-2 SC 49; Habib Nigeria Bank Ltd v. Gifts Unique (Nig) Ltd (2004) 15 NWLR Part 896 p.405; Wema Bank Plc v. Osilaru (2008) 10 NWLR part 1094 p. 150; Torno Internazionale Nigeria Ltd & Anor v. FSB International Bank Plc (2013) LPELR-22616 (CA). The respondent did none of these and was satisfied with merely dumping Exhibit F on the Court. The lower Court was wrong to have accepted and retied on Exhibit F in arriving at its decision.

For this reason and the fuller reasons given in the lead judgment, I also set aside the judgment

of the lower Court dismissing the appellant’s counter-claim. I further hereby grant the said counter-claim.

NONYEREM OKORONKWO, J.C.A.: I have been opportune to read in advance the draft of the judgment just delivered by my learned brother H.S. Tsammani, JCA.

?I agree with the reasoning and conclusion reached having nothing more to add.

Appearances

J.A Badejo, SAN with him,
F.D. Oloruntoba, Esq.For Appellant

AND

A.M Uthman, Esq. with him, G.B.Olapitan, Esq., C. Anyemere, Esq.,
I. Igwe, Esq. and A.A Odiagbe (Miss)For Respondent