TORNO INTERNAZIONALE NIGERIA LIMITED & ANOR v. FSB INTERNATIONAL BANK PLC (2013)

TORNO INTERNAZIONALE NIGERIA LIMITED & ANOR v. FSB INTERNATIONAL BANK PLC

(2013)LCN/6303(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of June, 2013

CA/K/194/2005

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

TORNO INTERNAZIONALE NIGERIA LTD
TORNO INTERNAZIONALE S P A Appellant(s)

AND

FSB INTERNATIONAL BANK PLC Respondent(s)

RATIO

THE PURPOSE OF A SUMMARY JUDGEMENT

Now the provisions of the High Court of Kaduna State Rules relating to the Undefended List provide a summary judgment procedure. The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc V. Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin v. Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441. PER ABIRU, J.C.A.

THE ESSENCE OF THE UNDEFENDED LIST PROCEDURE

Speaking on the essence of the Undefended List procedure, this Court in its unreported judgment in Appeal No CA/K/131/2010 – Samabey International Communications Ltd V. Celtel Nigeria Ltd (Trading as Zain) delivered on the 26th of April, 2013 stated thus:
“It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case. The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd V. Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd V. Afam Akputa Esq. (2010) 9 NWLR (Pt 1200) 443, Babale V. Eze (2011) 11 NWLR (Pt 1257) 48, David V. Jolayemi (2011) 11 NWLR (Pt 1258) 320.” PER ABIRU, J.C.A.

REQUIREMENT TO CONSTITUTE A PROPER TRAVERSE OF THE CASE OF A PARTY

It is trite that to constitute a proper traverse of the case of a party, it is not necessary for the other party to specifically deny, controvert or contest every paragraph of the party’s averment of fact. What is essential is that the case put forward by that other party conflicts in material particulars with the case put forward by the party and thus puts material averments in issue – Ajao V. Alao (1986) 5 NWLR (pt 45) 802 and Eze V. Okoloagu (2010) 3 NWLR (pt 1180) 183. PER ABIRU, J.C.A.

THE BURDEN OF PROOF IN CIVIL CASES

It is an elementary rule of civil litigation that a party who asserts a fact has the burden of proving that fact. In other words, where a given allegation whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation rests on him. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum V. Nwobodo (2004) 9 NWLR (pt 878) 411, Olaleye V. Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1. The onus was thus on the Appellants to prove that they made payments in excess of N300 Million to the Respondent. It is trite that the best way of proving payment of money into a bank account is by the production of a bank teller or an acknowledgement showing on its face that the bank had received the payment – Saleh V. Bank of the North Ltd (2006) 6 NWLR (Pt 976) 316 and United Bank of Africa Plc V. Godm Shoes Industries (Nig) Plc (2011) 8 NWLR (Pt 1250) 590. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/644/03 delivered by Honorable Justice A. D. Yahaya (as he then was) on the 26th of March, 2004. The Respondent, as plaintiff, commenced an action against the Appellants, as defendants, under the Undefended List Procedure, with leave of Court, and it prayed for:
i. Payment of the sum of N160,602,564.08 (One Hundred and Sixty Million Six Hundred and Two Thousand Five Hundred and Sixty Four Naira Eight Kobo).
ii. Payment of interest at the rate of 29% per annum on the said sum of N160,602,564.08 from the 31st of August, 2003 up to and including the date of judgment in this suit.
iii. Payment of interest on the judgment debt at the Court rate of 10% per annum until the judgment debt is fully liquidated.
iv. The cost of this action.

The writ and particulars of claim was supported by an affidavit of facts deposed to on the 26th of September, 2003 with exhibits attached. The processes were served on the Appellants and they responded by filing a motion on notice dated the 3rd of November, 2003 praying for an order striking out the suit as an abuse of process of court or alternatively, for an order staying further proceedings in the suit pending the determination of Suit No FHC/L/CS/860/2003 – Torno Internazionale Nigeria Ltd V. FSB International Bank Plc. The motion was supported by an affidavit with exhibits attached. The Appellants also filed a notice of intention to defend dated the 3rd of November 2003 and it was supported by an affidavit of facts with exhibits attached.

The trial Court heard arguments on the Appellants’ motion for striking out the suit or stay of proceedings along with the arguments on the substantive matter. In a considered judgment delivered on the 26th of March, 2004, the lower Court refused the motion of the Appellants and it found in favour of the Respondent in the substantive matter and it entered judgment awarding the Respondent the sum of N160,602,564.08 with interest at the rate of 21% per annum from 31st of August, 2003 until date of judgment and thereafter at the rate of 10% per annum until the judgment debt is liquidated.

The Appellants were dissatisfied with the judgment of the lower Court and they caused a notice of appeal dated the 29th of March, 2004 to be filed against it. The notice of appeal contained four grounds of appeal. The Respondent was also dissatisfied with the portion of the judgment awarding 21% per annum as interest as against the 29% per annum claimed and it caused a notice of cross appeal dated the 21st of June, 2004 to be filed and it contained one ground of appeal.

In arguing the appeal before this Court, the Appellants filed a brief of arguments dated the 20th of February, 2006 consisting of eleven pages. The brief was settled by Mr. T. E. Williams SAN of Chief Rotimi Williams Chambers and it was deemed properly filed by this Court on the 17th of May, 2006. The Respondent filed a brief of arguments comprising both the arguments on the main appeal of the Appellants and on its cross appeal and it consisted of fifteen pages and was dated the 2nd of August, 2006. The brief was settled by Mr. Emmanuel J. J. Toto SAN of Emmanuel Toro & Co and it was deemed properly filed on the 2nd of November, 2006. At the hearing of the appeal on the 11th of April, 2013, Counsel to the parties were absent from Court despite service of hearing notice on them and their respective briefs of arguments were deemed argued under the provisions of Order 18 Rule 9(4) of the Court of Appeal Rules 2011.

This Court will commence the consideration of this matter from the appeal of the Appellants. Counsel to the Appellants distilled four issues for determination in the Appellants’ brief of arguments. These were:
i. Whether there was credible evidence before the court to show that an earlier suit on the same subject matter was pending at the Federal High Court, Lagos.
ii. Whether the court below was right in holding that the suit before the Federal High Court in Lagos was not properly issued in accordance with Order 6 Rule 8 of the Federal High Court Rules.
iii. Whether the court below was right in relying on the deposition in paragraph 3(f) of the Respondent’s affidavit as a basis for entering judgment against the Appellants.
iv. Whether the learned trial Judge was right when he held that the Appellants had not established that over N300 Million was paid in respect of the facility granted by the Respondent.

Counsel to the Respondent adopted the four issues for determination as formulated by the Appellants.

On the first issue for determination, Counsel to the Appellants stated that they annexed the writ of summons and statement of claim of the action commenced in the Federal High Court as exhibits to both the affidavit in support of the motion for striking out or stay of proceedings and the affidavit of facts in support of the notice of intention to defend. Counsel stated that the processes of the Federal High Court carried a Suit Number and were stamped and dated by that Court and submitted that these amounted to credible evidence showing the existence of the prior action filed in the Federal High Court and he referred to the cases of Shell Petroleum Development Co. V. Nwolu (1991) 3 NWLR (Pt 180) 496 and The Oni V. Obiakor (1994) 1 NWLR (pt 322) 594. Counsel reproduced the reasons why the lower Court refused to attach probative value to the processes and submitted that the reasons did not detract from the fact that the action in the Federal High Court was filed on the 8th of December, 2003. Counsel stated that the reliefs sought in the matter in the Federal High Court were reproduced in the affidavit of facts in support of the notice of intention to defend and they showed that the Appellants were challenging their accounts with the Respondent and were seeking to restrain the Respondent from appointing a receiver and/or enforcing the provisions of a deed of debenture.

Counsel stated that the Respondent did not file a counter affidavit to deny or controvert the existence of the suit in the Federal High Court and that, in the circumstances, the lower Court ought to have believed the depositions of the Appellants on the existence of the suit. Counsel urged this Court to resolve the first issue for determination in favour of the Appellants.

On the second issue for determination, Counsel to the Appellants stated that their position thereon was twofold. Firstly, Counsel submitted that the lower Court lacked the jurisdiction to pronounce on the validity or otherwise of the processes of the Federal High Court and that the question of whether or not the Appellants complied with the Rules of the Federal High Court in commencing the action can only be heard and pronounced upon by the Federal High Court. Secondly, Counsel submitted that the lower Court misinterpreted the decision in Famfa Oil V. Attorney General of the Federation (2003) FWLR (Pt 184) 15 on the effect of non-compliance with the Rules of the Federal High Court in commencing an action. Counsel stated that the principle in the case was that such non-compliance emanating from errors committed by the Registry of the Court should not be blamed on the litigant and should be regarded as mere irregularity.

In his response, Counsel to the Respondent argued the first and second issues for determination together. Counsel stated that the question on the admissibility of the processes of the Federal High Court was crucial to the resolution of the two issues for determination. Counsel reproduced, at length, the treatment of the question by the lower Court and reasons why the processes were not deemed admissible by that Court. Counsel submitted that the findings and conclusions of the lower Court on the point were cogent and unassailable and were supported by the applicable law on the matter. Counsel stated that one of the reasons for the rejection of the processes was that being public documents, they were not certified as required by the provisions of the Evidence Act and he submitted that this position finds ample support in the decisions of the Courts and reference was made to the cases of Anatogu V. Iweka II (1995) 8 NWLR (Pt 415) 547, Fawehinmi V. Inspector General of Police (2000) 7 NWLR (Pt 667) 481, and Nwabuoku V. Onwordi (2006) 5 SCNJ 359.

Counsel said further that the said processes of the Federal High Court were also rejected because they were neither signed by a Judge or Registrar of the Federal High Court and he submitted that it had been held in numerous cases that where a document contains nothing to show that it was executed, it remains a worthless document and he referred to the cases of Faro Bottling Co Ltd V. Osuji (2002) 1 NWLR (Pt 748) 311 and Omega Bank (Nig) Plc V. OBC Ltd (2002) 16 NWLR (pt 794) 483. Counsel stated that another reason for the rejection of the processes was that no Revenue Collector’s receipt was presented to show that they were indeed filed and that the Appellants had performed all that was expected of them before the Registry of the Court can take over the blame for any omissions or non-feasance and he referred to the cases of Kolban (Nig) Ltd V. Lawrence Bros (1990) 3 NWLR (Pt 138) 356 and Adelaja V. Alade (1994) 7 NWLR (pt 358) 537. Counsel urged this Court to resolve the two issues for determination in favour of the Respondent.

In refusing to ascribe value to the processes of the Federal High Court filed as attachments to the affidavits of the Appellants, the lower Court stated thus:
“Order 6 rule 1 and 13 of the Federal High Court Rules 2000 require the Writ of Summons to be signed by a Judge of the Federal High Court before it is issued. See Famfa Oil Ltd V. A.G. Federation (supra) where it was held that failure to so sign it by the Judge is an irregularity. It was then signed by the Registrar. The Supreme Court directed the Judge of the Federal High Court to sign it. The writ of Lagos Court, exhibited to the affidavit in support of the motion, is not signed at all. If it had been signed by the Registrar, it would have been an irregularity….. Suffice it at this stage to say that the writ has not at all been signed by anybody and does not establish when it was filed. The stamp of a Federal High Court cashier with a date that is not clear as to the year cannot be evidence of filing the writ. First of all, the stamp does not indicate whether it is a Federal High Court Lagos cashier or Kaduna or Katsina Federal High Court. The filing fee is not indicated therein and no receipt of payment of filing was produced. There is no indication whatsoever what the amount or what the subject is…..

By Order 6 rule 8 of the Federal High Court Rules, a statement of claim at the Federal High Court has to be filed with the Writ. The date over the plaintiff’s counsel signature on the writ is 3rd of September, 2003. Date of filing it is not there. The statement of claim contains several dates and cancellations, as to the date, over the plaintiff’s solicitor signature, not the date of filing. August was cancelled and September inserted which was also cancelled. Another month, November, is inserted and a date 14th November, 2003 provided. There is no certainty at all to these dates.
There is no receipt for payment of filing for me to ascertain when the processes were filed and whether the writ and statement of claim were filed together or not. The cashier’s stamp is not helpful as I do not see what amount was paid and what the payment was for. Although on the statement of claim, the cashier’s stamp shows it is for Lagos Federal High Court, this is not so shown by the stamp on the writ…….

The non-signature on the writ of the Lagos Court by anybody, whether Registrar or Judge, as required by the Rules, the various alterations of dates on the statement of claim, and the lack of clear evidence as to when processes were filed at the Lagos Court, and whether the Writ and the statement of claim were filed together or not have raised very serious credibility issues to the documents and doubts as their genuineness. The lack of receipt of filing fees which is a necessary document to show evidence of filing and date, especially when there is such serious dispute, is a serious omission. I hold that the credibility of the documents, i.e. the writ and the statement of claim has been seriously shaken to their root and I decline to inscribe my probative value to them. I hold that there is no credible evidence and proof before this court that the Writ of Summons and the statement of claim have been issued and when at the Lagos Court. Since this is so I cannot place any reliance on them to hold that a similar action to this matter with the same parties has been pending at the Federal High Court Lagos before this matter was instituted.” (See pages 118 to 120 of the records)

The lower Court stated further that:
“Apart from their credibility, the documents being public documents have to comply with section 7 (2) (c), 110 and 111 (1) of the Evidence Act …. The writ and statement of claim in the Lagos Court have not been so certified and apart from admissibility, their genuineness cannot be assured.” (See page 120 of the records)

The said writ of summons and statement of claim of the Federal High Court Lagos were presented before the lower Court for the singular purpose of establishing the fact that the Appellants had commenced an earlier action on the same subject matter and between the same parties as in the present suit and they were to support the prayer of the Appellants for either the striking out of the present suit as an abuse of process or the staying further proceedings in this suit pending the determination of that suit. This present suit was commenced in September 2003 and as such the assertion of the Appellants would only be viable if it was shown that another suit had been commenced by them before September 2003. The questions of whether the processes in the said earlier suit were duly filed and issued and the date of such filing and issuance were thus crucial matters to the resolution of the motion of the Appellants. The onus was on the Appellants to establish these questions by credible evidence. It is settled that courts have the duty to scrutinize all processes filed before them and to ensure that they are in strict compliance with the relevant laws before taking action on such processes – Abbas V. Tera (2013) 2 NWLR (pt 1338) 284. The lower Court was thus on very firm ground when it subjected the writ of summons and the statement of claim to close scrutiny to affirm or deny the assertion of the Appellants that they were filed before the commencement of this present suit and made the elaborate findings on their lack of credibility and inability to establish the facts proposed by the Appellants. The Appellants did not challenge or contest the correctness of the findings of the lower Court on this appeal and the law is that they accept them to be true, correct and binding – Abubakar V. Bebeji Oil and Allied Products Ltd (2007) 8 NWLR (Pt 1066) 319, Uwazurike V. Nwachukwu (2013) 3 NWLR (pt 1342) 503. This Court cannot depart from the findings of the lower Court in the circumstances.

Further, it is not in contest that the writ of summons and statement of claim, processes of the Federal High Court Lagos, are public documents. It is trite law that where a public document is produced in an attempt to prove facts in issue in a court of law, before it can be considered admissible in evidence, it must be duly certified as required by law, irrespective of whether such a document is being used in an interlocutory application or at the hearing of a substantive suit. Only certified true copy of a public document must be tendered. Public documents not duly certified are inadmissible in evidence – Araka V. Egbue (2003) 17 NWLR (Pt 848) 1, Governor of Kwara State V. Lawal (2007) 13 NWLR (Pt 1051) 347, Orlu V. Gogo-Abite (2010) 8 NWLR (pt 1196) 307, House of Representatives V. Shell Petroleum Development Company of Nigeria (2010) 11 NWLR (Pt 1205) 213. In the instant case, the said processes of the Federal High Court presented before the lower Court by the Appellants were not certified true copies and, as said by Oguntade, JCA (as he then was) in Fawehinmi V. Inspector General of Police (2000) 7 NWLR (Pt 665) 481, they were worthless and irrelevant in the eyes of the law.

This Court is unable to fault the conclusion of the lower Court that it cannot place any reliance on the processes of the Federal High Court Lagos presented by the Appellants to hold that a similar action between the same parties as this present suit was pending before the Federal High Court before this suit was commenced. The lower Court was on firm ground when it refused the motion of the Appellants seeking to strike out the suit as an abuse of process or alternatively for a stay of proceedings. The first and second issues for determination in this appeal are resolved in favour of the Respondent.

On the third issue for determination, Counsel to the Appellants stated that from the couching of the claims on the writ of summons and the facts deposed to in the affidavit in support of the case under the Undefended List procedure, the case of the Respondent for the sum of N160, 602,564.08 as the outstanding balance on the credit facilities extended to the Appellants was predicated on the statement of account attached as Exhibit C to the affidavit. Counsel stated that the lower Court found in its judgment that the said Exhibit C did not comply with section 97 of the Evidence Act, 2004 and thus rejected the statement of account. Counsel submitted that with the rejection of Exhibit C, there was no credible evidence upon which the lower Court could have arrived at the judgment in the sum of N160,602,564.08.

In response, Counsel to the Respondent stated there were indeed other credible evidence available in the affidavit in support of the case under the Undefended List procedure and that the lower Court adequately evaluated the facts contained in the affidavit side by side with the facts deposed in the affidavit of facts of the Appellants in support of the notice of intention to defend before adjudging the Appellants liable.
Counsel stated that the lower Court found that the Appellants did not disclose any defence on the merits and that in such circumstances the Respondent was entitled to judgment and he referred to the case of Aso Motel Kaduna Ltd V. Detemo (2006) 7 NWLR (Pt 978) 87. Counsel stated that the Appellants did not complain against the findings of the lower Court that their defence was a sham defence and the assumption raised thereby is that they are satisfied with the finding and he referred to the case of Okotie-Eboh V. Manager (2004) 18 NWLR (pt 905) 242.

Now, the claims of the Respondent in the lower Court were for the payment of the sum of N160, 602,564.08 together with interest at the rate of 29% per annum from the 31st of August, 2003 up to and including the date of judgment in this suit and thereafter at the rate of 10% until final payment. In the affidavit filed in support of the case under the undefended list, it was the case of the Respondent that the first Appellant was its customer in its Kaduna North branch and that, at the first Appellant’s request, it agreed to extend credit facilities to the first Appellant subject to a corporate guarantee of the second Appellant and that the terms of credit facilities were embodied in a letter dated 31st of October, 2002 and the terms were duly accepted by the Appellants; a copy of the letter was Exhibit A. It was its case that the second Appellant duly issued and executed a letter of guarantee dated 22nd of July, 2002, Exhibit B, and that the credit facilities were extended to the first Appellant such that as at the close of business on the 31st of August, 2003 the credit facilities stood at N160, 602,564.08; the statement of account showing the account balance as at 31st of August, 2003 was Exhibit C. It was its case that the Appellants refused, neglected or failed to repay the said sum of N160, 602,564.08 and interest thereon despite repeated demands and copies of the first Appellant’s letter dated 14th of August 2003 making repayment proposals and letters of demand written to the first Appellant dated 23rd of August, 2003 and to the second Appellant dated the 16th of July, 2003 were attached as Exhibits D, E and F.

In the affidavit of facts supporting the notice of intention to defend, the Appellants admitted that they had banking relations with the Respondent and it was their case that since the commencement of the relationship, the Respondent was in the habit of making debit entries of interest purportedly charged on interest into their account contrary to the agreement between the parties. It was its case that also contrary to the terms of the contract, the Respondent charged interest at over 35% on the account and that these fraudulent entries into the account did not abate despite their protests and this prompted them to threaten legal action and whereupon an all-parties meeting was conveyed. It was their case that at the meeting, the Respondent admitted making several fraudulent debits into the account of the first Appellant and agreed to reverse the entries as well as the interest charged on interests and it was agreed that the parties would abandon portions of their respective claims and that the Appellants should make a proposal “without prejudice” to reflect the agreements reached at the meeting and that the letter attached by the Respondent as Exhibit D was the proposal. It was their case the Respondent reneged on the agreements reached at the meeting and in consequence of which they commenced an action against the Respondent in the Federal High Court, Lagos in Suit No. FHC/L/CS/860/2003 and that notwithstanding the service of the court processes on the Respondent, the Respondent commenced this suit against them. It was their case that though it was correct the Respondent extended credit facilities to them, they have since repaid monies in excess of N300 Million and which fact the Respondent concealed in the bogus statement of account, Exhibit C.

Also in Okoli V. Morecab Finance (Nig) Ltd (2007) 14 NWLR (pt 1057) 37 at page 70 paragraph C, the Supreme Court stated:
“…the rules as regards matters placed under the undefended list is designed to enable a plaintiff to obtain summary judgment without trial in those cases where the plaintiff’s case is unassailable (as in the instant case) see Cow V. Casey (1949) 1 KB 474 and the defendant cannot show a defence which will lead to a trial on its merits.”
These mean that there are two steps to the applicability of the Undefended List procedure and these are (i) there must be no reasonable doubt as to the efficacy of the claims of a plaintiff; and (ii) the defendant must not have a plausible defence to the claim of the plaintiff. The first step must be present before the second step can be inquired into and where either of them is not present, then the undefended list procedure cannot be used. In other words, before the defendant can be called upon to depose to an affidavit which must condescend upon particulars and deal specifically with the plaintiffs claim, the plaintiff has a concomitant duty to first of all satisfy the court with an affidavit disclosing credible and reliable facts backed up with authentic and credible documents which would warrant the court to give him judgment where the defendant’s affidavit does not disclose facts which would at least throw some doubt on the plaintiffs case. This is in keeping with the principle of burden of proof that says that in civil suits, a plaintiff ought to succeed on the strength of his case and not on the weakness of the defendant’s case – Aubergine Collections Ltd V. Habib Nigeria Bank Ltd (2002) 4 NWLR (pt 757), S.P.D (Nig) Ltd V. Arho-Joe (Nig) Ltd (2006) 3 NWLR (Pt 966) 173 and David V. Jolayemi (2011) 11 NWLR (pt 1258) 320. Where the case of a plaintiff under the undefended list is not unassailable, the question of whether or not the defendant disclosed a defence on the merits does not arise – Alhaji Muktari Uba & Sons Ltd V. Lion Bank of Nigeria Plc (2006) 2 NWLR (pt 964) 288, Nigerian Postal Services V. Insight Engineering Company Ltd (2006) 8 NWLR (Pt 983) 435.

In its deliberations on the case of the plaintiff, the lower Court in its judgment found that Exhibit C, the statement of account, was not in compliance with the provisions of the Evidence Act and it discountenanced it. The lower Court thereafter continued thus:
“The deposition in paragraph 3 (f) of the affidavit in support of the Writ states the credit facilities extended to the 1st defendant at the close of banking business on the 31st of August 2003 to be the sum of N160, 602,564.08. In the affidavit in support of the Notice of Intention to defend, the defendants have not at all denied specifically that deposition or the amount. I am therefore entitled to form an opinion on paragraph 3 (f) of the affidavit in support of the action since it has not been denied or controverted adequately……

I accept as true the deposition in paragraph 3 (f). Besides, there is Exhibit E exhibited to the affidavit in support of the action. It clearly shows on its face that it is a letter of demand to the 1st defendant to pay N156,741,987.45k it owed the plaintiff as at 31st of July, 2003. This exhibit is in support of paragraph 3 (h) of the affidavit in support of the action. It has not been controverted by the affidavit in support of the Notice of Intention to defend. I give full effect to the deposition in paragraph 3 (h) and accord forensic value to Exhibit E. It is to be noted that the amount standing in Exhibit E is less than that in paragraph 3 (f). Exhibit E is as at 31st of July, 2003, a date which is earlier than the 31st August, 2003 in paragraph 3 (f).

Furthermore, there is also Exhibit F in support of paragraph 3 (i) of the affidavit in support of the action written to the 2nd defendant for a demand of payment of its liability standing as N152, 974,211.66k as at 30th June, 2003, also a date earlier in time than both Exhibits E and paragraph 3 (f). The deposition in paragraph 3 (i) has also not been controverted.”

As stated earlier, the claim of the Respondent was for the payment of the sum of N160,602,564.08 together with interest at the rate of 29% per annum from the 31st of August, 2003 up to and including the date of judgment in this suit and thereafter at the rate of 10% until final payment. It is crystal clear from the case of the Respondent in the affidavit in support of the action that the claim was predicated on the assertion that the said sum of N160, 602,564.08 was the debit balance in the account of the first Appellant with the Respondent as at 31st of August, 2003 on the credit facilities extended to the Appellants. The lower Court relied on the depositions in paragraphs 3 (f), 3 (h) and 3 (i) of the affidavit in support of the case under the undefended list to find that the Respondent made out a good case for the said sum of N160,602,564.08.
These paragraphs read thus:
3 (f) That based on the foregoing the Plaintiff Bank extended credit facilities to the 1st Defendant, which credit facilities as at the close of banking business on the 31st of August 2003 stood at N160,602,564.08 (One Hundred and Sixty Million Six Hundred and Two Thousand Five Hundred and Sixty Four Naira Eight Kobo). A copy of the Statement of Account of the 1st Defendant’s aforementioned account with the Kaduna North Branch of the Plaintiff is annexed hereto and marked Exhibit C.
3 (h) That the Plaintiff Bank eventually wrote its letter of demand dated the 20th August, 2003 to the 1st Defendant demanding for full payment of the said credit facilities. A copy of the letter is annexed hereto and marked Exhibit E.
3 (i) The Plaintiff Bank also wrote a letter of demand to the 2nd Defendant dated 16th of July, 2003, a copy of which is annexed hereto and marked Exhibit F.

Now, the law is that the appropriate method used by a lender to establish the indebtedness of a borrower is through entries in its books and these entries are usually constituted into a statement of account and which represents secondary evidence of the entries in the lender’s books – Akanmu V. Cooperative Bank Plc (2006) 2 NWLR (Pt 963) 82. In the instant case, the statement of account relied upon by the Respondent, Exhibit C, was discountenanced by the lower Court and this left the assertion in paragraph 3 (f) bare without any supporting document explaining and showing how the debit balance sum of N160, 602,564.08 claimed to be due from the Appellants as at 31st August, 2003 was arrived at. It is settled law that even where a credible statement of account is presented to a court in a claim for payment of a liquidated debt, the statement of account, as a general rule, cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. A person who is claiming a sum of money on the basis of the overall debit balance in a statement of account should adduce both documentary and oral evidence explaining clearly the entries therein to show how the overall debit balance was arrived at – 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 (Pt 896) 405, Wema Bank Plc V. Osilaru (2008) 10 NWLR (Pt 1094) 150. Where there is a dispute on the indebtedness, the party cannot just toss and dump before the Court the statement of account in proof of the indebtedness of the customer for the overall debit balance therein. It must demonstrate through oral evidence given by an official who is familiar with the accounts, how the debit balance was arrived at – Biezan Exclusive Guest House Ltd V. Union Homes Savings & Loans Ltd (2011) 7 NWLR (pt 1246) 246 and Bilante International Ltd V. Nigerian Deposit Insurance Corporation (2011) 15 NWLR (pt 1270) 407.
In the instant case where not even a credible statement of account was produced, the position of the Respondent becomes more difficult and the probative value of the bare assertion in paragraph 3 (f) of the affidavit of the Respondent is called into serious question.

The situation of the Respondent was not helped by the depositions in paragraphs 3 (h) and 3 (i) of the affidavit in support. These depositions only showed that two separate letters of demand were written to the Appellants and nothing more. The affidavit of the Respondent did not contain further facts on whether the letters of demand were received by the Appellants and/or the reaction of the Appellants to the letters of demand to enable inferences to be drawn as was done by the Court of Appeal in I.O.M. Nwoye & Sons Company Ltd V. Co-operative and Commerce Bank (Nig) Plc (1993) 8 NWLR (Pt 310) 210 where a bank made demands for settlement of debt by letters stating the amount of the debt and the debtor did not query the respective figures written in the letters as the overall debt due but rather wrote letters explaining the reasons for non-payment of the debt, and the Court stated that the debtor will be deemed to have impliedly admitted the quoted figures as the amount of debt due. Or as was done by the Courts in Gwani V. Ebule (1990) 5 NWLR (Pt 149) 201, Trade Bank Plc V. Chami (2003) 13 NWLR (Pt 836) 158 and Zenon Petrol & Gas V. Idrissiya Ltd (2006) 8 NWLR (Pt 982) 221, where there was clear evidence that business letters were received and not responded to, and it was held that a party will be deemed to have admitted the contents of the letters. The statements made by the lower Court in its deliberations which suggest that the Appellants impliedly admitted the different figures quoted in the letters of demand, Exhibits E and F, were based on assumptions made by the lower Court and not on any stated fact in the affidavit of the Respondent. It is elementary law that a Court can, and must, only act on the evidence placed before it by the parties and it must not speculate or assume facts not presented to it by the parties – Kotun V. Olasewere (2010) 1 NWLR (Pt 1175) 411.

It is correct that the Appellants wrote a letter dated the 14th of August, 2003 wherein certain proposals for repayment of outstanding debt were made and that this letter was referred to in paragraph 3 (g) of the affidavit of the Respondent and attached as Exhibit D. A reading of the letter shows that it was written pursuant to discussions of settlement between the parties, and this fact was affirmed by the Appellants in the affidavit of facts in support of their Notice of Intention to defend and was not contested by the Respondent. It is an established principle of law that offers of compromise made expressly or impliedly by a party cannot be given in evidence or even used by the court because the law has as its policy the protection of negotiations bona fide entered into for settlement of disputes – Ashibuogwu V. Attorney General, Bendel State (1988) 1 NWLR (Pt 69) 1238, Fawehinmi V. Nigerian Bar Association (No.2) (1989) 2 NWLR (Pt 105) 558, Akanbi V. Alatede (Nig) Ltd (2000) 1 NWLR (Pt 639) 125, First Amalgamated Building Society Ltd V. Ibiyeye (2008) 14 NWLR (Pt 1107) 375. The contents of Exhibit D were also not helpful to the case of the Respondent.

Again, the assertion of the lower Court that the Appellants did not deny, challenge or contest the case of the Respondents that they were owing the sum of N160, 602,564.08 as at 31st August, 2003 as made out in paragraph 3 (f), and supported by paragraphs 3 (h) and 3 (i), of the affidavit in support of the case Respondent was not be correct. The lower Court predicated the assertion on the fact that the Appellants did not specifically deny or controvert the depositions in the said paragraphs. It is trite that to constitute a proper traverse of the case of a party, it is not necessary for the other party to specifically deny, controvert or contest every paragraph of the party’s averment of fact. What is essential is that the case put forward by that other party conflicts in material particulars with the case put forward by the party and thus puts material averments in issue – Ajao V. Alao (1986) 5 NWLR (pt 45) 802 and Eze V. Okoloagu (2010) 3 NWLR (pt 1180) 183. Looking at the entire case put forward by the Appellants in the affidavit of facts in support of their notice to intend it is clear that they contested the debit balance of N160, 602,564.08 said to be due from them as at 31st August, 2003, particularly how it was arrived at. The Appellants deposed that they in fact commenced an action in the Federal High Court in Suit No. FHC/L/CS/860/2003 to contest the debit balance and that the court processes were served on the Respondent; these facts were not replied to by the Respondent. The Appellants did controvert the depositions in paragraphs 3 (f), 3 (h) and 3 (i) of the affidavit in support of the case Respondent.

From the case of the Respondent, the credit facility extended to the Appellants by the letter dated 31st of October, 2002, Exhibit A was N1 Billion. The Respondent did not state how much of the credit facility was drawn down and how much was repaid, if any, and how the balance sum of N160,602,564.08 came to be as at 31st August, 2003. The rejection of the statement of account, Exhibit C, relied upon by the Respondent affected the case made out by the Respondent under the undefended list and its claim for the sum of N160,602,564.08 as the balance due from the Appellants as at 31st August, 2003 on the credit facilities advanced, was not unassailable. The lower Court ought to have transferred the case to the general cause list for trial on the merits without going further to determine whether or not the Appellants disclosed a defence on the merits. A read through the judgment shows that the lower Court resolved the matter by wrongly placing the burden on the Appellants to prove that they were not owing the Respondent the sum of N160, 602,564.08 as at 31st August, 2003 instead of on the Respondent to prove that the Appellants were indeed owing that sum as at the date. The third issue for determination is resolved in favour of the Appellants.

On the fourth issue for determination, Counsel to the Appellants stated that the Appellants deposed in paragraph 3 (l) of their affidavit of facts that though it was correct the Respondent extended credit facilities to them, they had since repaid monies in excess of N300 Million and which fact the Respondent concealed in the bogus statement of account, Exhibit C and that the said statement of account was a fictitious production of the Respondent and had no semblance to the actual transaction between the parties. Counsel stated that the Respondent did not controvert this deposition. Counsel submitted that when this deposition is considered along with averment of the Respondent that the Appellants were owing N160,602,564.08, it amounts to an effective denial of the case of the Respondent.

In response, Counsel to the Respondent adopted his earlier arguments that the defence presented by the Appellants was a sham defence and he stated that the lower Court adequately and painstakingly analysed the assertion by the Appellants that they had repaid monies in excess of N300 Million and out-rightly rejected same as baseless.
Counsel commended to this Court the reasoning, findings and conclusions of the lower Court on the subject.

In rejecting the assertion of the Appellants on the payment of over N300 Million, the lower Court stated thus:
“There is no receipt produced in this Court establishing the payment of “over N300,000,000.00″ to the plaintiff. The deposition does not also show what transaction or facility the repayment of over N300,000,000.00 was for.”

A teller duly stamped with the Bank’s stamp and initialed constitutes prima facie proof of payment and a customer after producing such receipt need not go further to show what the Bank did with the payment – Aeroflot Soviet Airlines V. United Bank for Africa Ltd (1986) 3 NWLR (pt 27) 188. The Appellants did not produce one teller evidencing the payment of the said “monies in excess of N300 Million” or part of it to the Respondent and no explanation was offered for the non-production of the teller. The assertion was bare and the lower Court was correct in refusing to ascribe probative value to it. The fourth issue for determination is resolved in favour of the Respondent.

The resolution of the third issue for determination in favour of the Appellants provides the merits in this appeal. The appeal thus succeeds and will be allowed. This takes to the cross-appeal of the Respondent.

The substratum of the cross-appeal is the rate of interest awarded by the lower Court in the judgment entered in favour of the Respondent. The case of the Respondent on the cross-appeal is that the lower Court should have ordered the payment of interest at the rate of 29% from the 31st of August, 2003 until the date of judgment instead of the 21% awarded in the judgment. With the finding of merit in the substantive appeal and which will necessitate the setting aside of the judgment of the lower Court, the further consideration of the cross-appeal will amount to an academic exercise. The Courts do not make a habit of indulging in such ventures – Efet V. Independent National Electoral Commission (2011) 7 NWLR (pt 1247) 423, Ayodele V. State (2011) 6 NWLR (pt 1243) 309, Ogudo V. State (2011) 18 NWLR (pt 1278) 1. This Court declines the consideration of the cross-appeal and same will be struck out.

In conclusion, the appeal hereby succeeds while the cross-appeal is struck out. The judgment of the High Court of Kaduna State in Suit No KDH/KAD/644/03 delivered by Honorable Justice A. D. Yahaya (as he then was) on the 26th of March, 2004 is hereby set aside. The Appellants are granted leave to defend this action. This matter is hereby remitted to the Chief Judge of the High Court of Kaduna State for re-assignment to another Judge for trial. The parties shall bear their respective costs of this appeal. These shall be the orders of this Court.

ABDU ABOKI, J.C.A.: I had the opportunity of reading in advance the judgment just delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA.

I entirely agree that there is merit in the appeal. I also allow same and set aside the decision of the High Court of Kaduna State delivered on 26th of March, 2004 and same is remitted to Chief Judge of the High Court of Kaduna State for re-assignment to another Judge for trial. I abide by the consequential order contained therein.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the opportunity of reading before now the leading judgment delivered by my learned brother, Abiru, J.C.A. I agree with him that this appeal is meritorious and ought to succeed, while the cross-appeal is struck out. Accordingly, I abide by the order made in the leading judgment of this court.

Appearances

No appearance for the parties.For Appellant

AND

For Respondent