UBA PLC v. UWHUBETINE (2022)

UBA PLC v. UWHUBETINE

(2022)LCN/16534(CA)

In the Court of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/AS/271/2014

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

UNITED BANK FOR AFRICA APPELANT(S)

And

MR. EDEMATIE UWHUBETINE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON AN ADMISSION AGAINST INTEREST

What is an admission against interest? ABDULSALAMI V AFRICAN PETROLEUM & ORS2019 LPELR-51796 (CA).
Whether a statement made by a party either in course of a trial or otherwise will amount to an admission against interest depends on the circumstances in which the statement and context in which the statement was made and whether the truth of that statement is established by other pieces of evidence. See MR. SUNDAY OSHAFUNMI & ANOR V MRS SHERIFAT ADEPOJU & ANOR (2014) LPELR—23073 (CA), ANASON FARMS LTD V NAL MERCHANT BANK(1994) 3 NWLR (PT 331) 241.

THE BURDEN OF PROOF WHERE A PARTY DESIRES THE COURT TO GIVE JUDGMENT AS TO ANY LEGAL RIGHT

Furthermore, it is trite that he who would lose, should judgment be entered against him, if no evidence is adduced must prove. See Section 131(1) & 132 (1) of Evidence Act, 2011.
1. whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
3. The burden of proof in suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
The above applies in this appeal.
See EDOBOR V OLOTU & ANOR (2012) LPELR-9288 (CA). PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of the Honourable Justice P. O. ONAJITE-KUEJUBOLA (MRS) of the Delta State High Court sitting at Effurun, Delta State delivered on 3rd April 2014 in favour of the Respondent the Appellant being dissatisfied filed the notice of appeal on 28th April 2014 and at the hearing relied on the notice of 7-3-2014.

FACTS
The Appellant upon complaints to it by the Respondent on fraudulent withdrawals from his account immediately commenced investigation on the matter and thereafter informed Respondent that his account would be reconciled.

The Appellant reported the case to EFCC being the agency in charge such matters, invited the Respondent by courier through NIPOST EMS SPEED POST, which was not honoured, instead while investigation was ongoing the Respondent filed an action on 11/2/2011 at the High Court in ECH/33/2011 that he is entitled to the sum of N75,158,556.00 (SEVENTY-FIVE MILLION, ONE HUNDRED AND FIFTY-EIGHT THOUSAND FIVE HUNDRED AND FIFTY-SIX NAIRA) as monies allegedly and fraudulently withdrawn from his account with the Appellant.

During investigation, the sum of N59,600,00 (Fifty Nine million Six hundred thousand Naira) was found to have been actually withdrawn and not the amount claimed, which was also confirmed by the Respondent see para 41 & 43 of his statement on oath. Also at cross-examination, he admitted same and that reversal was to the tune of N59M leaving a difference of 15m therefore the contention has been narrowed to 15Million Naira.
The lower Court granted the claim of the Respondent.

Sequel to the rules of Court parties exchanged briefs The Appellant filed brief and reply brief respectively on 14/4/16, 8/7/2021 deemed 22/2/22 settled by Lady Abiodun O Akpoguma of V.E AKPOGUMA & CO wherein she distilled three issues for determination ;
1. Whether exhibits C, D, & G are admissions against interest by the Appellants and proof of the Respondent’s allegation that he paid the sum of N15m into his account with the respondent which was not posted and thus entitling him to the judgments of the lower Court?
2. Whether the judgments of the lower Court is not against the weight of evidence?
3. Whether the Respondent was entitled to judgment given in favour against the appellant by the lower Court

The Respondent on the other hand filed brief on 2/7/2021, DEEMED 22/2/22 settled by CHIEF E. L. AKPOFURE, SAN, FCIArb of E. I. AKPOFURE SAN & CO, wherein he raised a preliminary objection in his brief to the competence of the appeal on grounds A- J therein which was withdrawn and struck off (on the adoption of briefs) on 22nd February 2022.

He settled two issues for determination.
1. Whether exhibits C, D, and G, are admissions against interest by the Appellant and proof of the Respondent’s allegation that he paid the sum of N15,000,000 (fifteen million Naira) into his account with the Respondent which was not posted and thus entitling him to the judgment of the lower Court
2. Whether the Respondent was entitled to the judgments given in his favour against the Appellant by the lower Court.
The Appellants argued the issues together.

APPELLANT’S ARGUMENTS
ISSUES 1, 2 & 3
The Appellant submits that from the contents of exhibits C, D, and G that they are not admissions against interest by the Appellant, of Respondent’s allegation that he paid the sum of N15m into his account which was not posted by the Appellant. That there is no evidence to have warranted the judgment in favour of the Respondent Exhibit C is transaction inquiry in respect of Respondent’s account which was admitted as a statement of account, whilst Exhibit D is the statement of account exhibit G is the statement of Nkemnachor Wilstson; an employee of the Appellant Bank and submits that the Court misdirected herself, when issues had been joined on pleadings of the parties as to whether the Respondent paid the sum of N1500,000 into his account he referred to paragraphs, 9, 22, 26, PAR 10 & 1 (I), II AND (III), PAR 50 (A-D) of Amended Statement of Claim at pages of 130-137 of the record, and in paragraphs 10 and 12 (1), (ii) and (iii) of the Appellant’s statement of defence at pages 188-192 of record.

That none of the exhibits showed that a total of N85million was ever in his account See; lines 4-5 of page 183 of record and that Section 131 (1) & (2) of the Evidence Act applied. He cited CHITEX IND LTD V OCEANIC BANK INT LTD (2005) AAFWLR PART 276 PAGE 610, AGORONIYI ATAQI V UNION BANK NIG PLC (2006) ALL FWLR PT 285 AT 538 PAR F-G.

That in paragraph 11 of the statement on oath the Respondent says he made another deposit of 15m and in Par 12 Appellant in its witness deposition stated that Respondent did not at any time pay such sum into the account and therefore the lower Courts judgment was perverse. He cited WAEC V OSHIONEBO (2007) ALL FWLR PT 370 PG 1504 AT 1516.

That the reliance on Respondent Counsel’s submission that Exhibit G is an admission against the interest of the fact that a sum larger than 75m (N85Million) was transferred out of the Respondent’s account is untenable, since Exhibit G ex facie does not say so. He relied on SEGUN OGUNSANYA V STATE (2011) ALL FWLR PT 590, ARCHIBONG V ITA & ORS (2004) ALL FWLR PT 197 PG 930.

He submitted that from exhibits C & D Statement of accounts of Respondent’s documentary evidence, the Respondent’s calculation did not add up, despite exhibits A (1-8), c, d.

He posits that the lower Court failed to properly evaluate the evidence and came to a wrong decision he cited YAKUBU V UBA (2012) ALLFWLR (PT611) PG 1468 AT 1496, BERHA V TIZA (2004)4 NWLR (PT 625) PG 193 AT 212 ACB V EMOSTRADE LTD (2002) FWLR (PT 10) PG 540.

Appellant submits that by exhibit E1 the Respondent was aware that the investigation was not concluded before he went to Court. That the Court of law cannot rely on exhibit gas admissions which are not clear, categorical and ambiguous he referred to IBACHEM LTD V VISA INVESTMENT & SECURITES LTD (2009) E-F NATIONAL BANK OF NIGERIA LTD V GUTHRIE (1993)3 NWLR PT 284 PG 643.

The Appellant submits that exhibit G clearly does not absolve the Respondent the onus to prove that he paid N15m into his account Respondent failed woefully to prove that he did.

RESPONDENT’S ARGUMENTS
Arguing the two issues, the Respondent submitted that exhibits C, D, & G are inextricably interwoven and that the relevant part of Exhibit G at page 128 of the printed record was a breakdown of internal investigation findings and same was clear precise, direct unequivocal and ambiguous, to the extent that it does not require any extraneous meaning to be attached to it and is noted that it was admitted without any objection of the defence.

He contended that contrary to Appellant’s submission that it does not amount to admission against interest he defined the meaning Black’s Law Dictionary 7th edition at page 48 to mean
“a person s statement acknowledging a material fact that is harmful to the person’s position as a litigant’’

He further contended that exhibit G emanated from the defendant’s employee and is the best evidence in favour of the Respondent in this case he cited; ONYENGE V EBERE (2004)13 NWLR (PT 889) AT 20 PAR F-G PP39, Sections 20, 22, 23 & 24 of Evidence Act 2011.

He emphasised that his claim is for N75,158,556.00 (Seventy-five Million, one hundred and fifty-eight thousand, five hundred and fifty-six naira) until judgment is delivered etc or in the alternative;
‘’An order compelling the defendant to credit the claimant’s account with the sum of N75,158,556,.00 and interest that accrued thereon from the 30th day of June, 2010 till the aforementioned sum is credited in the claimant’s account
That the above N75,158,556.00 (Seventy-five million, one hundred and fifty-eight thousand, five hundred and fifty-six Naira) includes the N15,000,000.00 (Fifteen million Naira ) which the Appellant claimed was not posted.
That the said amount withdrawn is shown in the N85,000,000 which was admitted by the defendant through exhibit G that the sum admitted is higher than the sum being claimed by the respondent and which said sum includes the N15,000,000.00 (FIFTEEN MILLION NAIRA) in contention.”

He said the lower Court was right when in her findings at pages 251-252 of the record that
’’a party can take advantage of an evidence led by the adversary which supports its case,”

The Respondent referred to the further witness deposition of the defence evidence in chief in paragraph 9 of the statement of defence which amounts to approbating and reprobating and is making two inconsistent cases, he relied on ALAHASSAN V ISHAKU(2016) 10 NWLR (PT 1520)PG 230 @261 EZEMBA V IBENEME (2004) 122 LRCN 5163 AT 5181 PAR K-P, KIMDEY VS MILITARY GOV OF GONGOLA STATE (1988) 2NWLR (PT 77) PG 445 AT 473 OSAYOGIE V EDOKPAYI (2014) LPELR -22661 (CA).

He contended in addition that Exhibit G stated that the fraudulent transfer was made in tranches of N30,000,000 naira and N55,000,000.00 Totalling N85,000,000.00 (Eighty-five million Naira) argued that the evidence weighed in favour of the claimant by reason of probative value of evidence adduced, he cited OMOTOSHO V IFE NORTH LOCAL GOVT (2010) ALL FWLR (PT 544) AT 22.

He disagreed that the lower Court did not evaluate the evidence properly, and that all exhibits tendered emanated from the Appellant except Exhibit E. He also argued that the Respondent adduced evidence of deposit of the said N15m in paragraph 9 of & 22 of Statement of Claim page 131-132 of record, that Appellant did not seek for further and better particulars of the said sum he referred to lines 1-10 of page 183 of record that it showed that the sum was given to the manager to be paid into the Respondent’s account. That it’s a regular practice wherein the manager collects money from the Respondent to be paid into his account that the manager was doing so in his official capacity.

That the onus is on the Appellant to call his manager to give evidence as to whether the sum was handed over to him by the Respondent, and having not done so Section 167 (d) should be invoked against them.

He submitted that the lower Court did not use the phrase admission against interest in her judgment that the Appellant was fishing for material. That all withdrawals were reflected in Exhibit C was reflected by Exhibit C and D is not correct and runs contrary to documentary evidence tendered at trial. He maintained that the contention that there was no evidence that N15m was ever paid into the account was without substance. He urged the Court to affirm the judgment.

APPELLANT’S REPLY
The Respondent filed a preliminary objection together with arguments in the Respondent’s brief, the Appellant duly responded to it in its reply brief. On the 22nd day of February 2022 at adoption of briefs, the Respondent withdrew the preliminary objection and same was struck out together with the arguments thereon. Therefore the entire reply is based on the same, and stands struck out as well, and I shall discountenance it.

RESOLUTION
I have examined the issues of both parties and find that they are similar, except the 3rd issue of the Appellant which can be subsumed in the 2nd issue, therefore I shall resolve the three issues together herein.

The main crux of the matter is the true status of exhibit G. It is a statement of the internal auditor; Mr. Nkemnachor Wilson of the Appellant made to EFCC in the course of investigation on 5/1/2011 on the issue of illegal transfer of a staff of the UBA. It is front-loaded by the Respondent and at page 128 of the printed record.

The Appellant had made a report to the E.F.C.C. and in course of its investigation invited the relevant officers of the Appellant bank who made statements made in course see page 104 of record dated 8th December 2010. The said statement was to the effect that during the investigation of the illegal transfer from the complainant’s account the sum of N85 million was found to have been transferred. The Appellant averred that the investigation by EFCC was not concluded because the claimant refused to honour the invitation and came to Court instead, the said statement was not subjected to scrutiny and therefore was inconclusive on the contents. THE STATE V STANLEY NDUDI ONWUERIAKU & ANOR (2017) LPELR–42613 (CA).
In BARR SAA’D ABDULRASHEEM AKANBI & ORS V COMM OF POLICE KWARA STATE (2018) LPELR-44049(CA). The Court held that;
“The fact that the appellants made or have given some explanations to the police on the criminal investigation based on exhibits MOJ 1 would not stop the police until the police is satisfied with the outcome of their investigation.’’
The stark reality is that it is just a statement in a criminal investigation, statements must go through veracity test for authenticity. See ALIYU YAHAYA V THE STATE (2021) LPELR-53451 (CA).
The Courts are wary of such evidence; in MOHAMMED ALI V THE STATE (2020) LPELR-53409(SC) The Apex Court held at page 31-32 para D-C that;
“…statements made to the police during investigation cannot be used as evidence before the Court as the Court only uses the evidence provided by a given witness in the Court, Anyway if there was to be something of a contention in regard to those extra-judicial statements of witnesses, the concern ought to be raised in the course of the trial and not after and worst of all in a counsel’s brief which does not take the place of evidence. In other words, whatever is lost in evidence cannot be restored in a lawyer’s address or brief as it is lost for all time. Therefore, the lawyer’s brief is not the place to bring up the credibility or lack of it when it did not come up during cross-examination of the witness or witnesses on the other side.’’

See paragraphs 8, 9 & 10 of the amended statement of defence. Wherein the Appellant stoutly denied any deposit of 15M made into the account. Also paragraphs 12(i) & (ii) of the amended statement of defence at page 189 of record; where they denied that its Regional Manger Mr. Onyema did not inform him on the details of investigation or of any admission of not posting N15M allegedly lodged by claimant into the said account. See also exhibit E1; letter from U.B.A.

I have read the said exhibit E1, it’s a letter written by the Bank’s regional Manager in response to the Respondent’s inquiry and demand for restoration of his account status. The interpretation given by the Respondent is contrary to the content, it does not admit of any amount having been illegally withdrawn or by whom. It merely states that investigation is at its final stages and it is after that that the account will be credited with what is due to him. This does not translate to an admission in law.

The cross-examination evidence of the Respondent at page 182-183 of the record is that;
“…It is about N15M left to be paid, as it’s my difference. When we make payments we get credit letters, I made another deposit of 15 million into my account on a later date. The N15 Million was given to the Manager. The deposit slip for the N15m is here. The N5m deposit is not part of the exhibit. Deposit slip A1-8. I can’t remember the date I made the deposit of 15M. I don’t go to the bank, as the Manger comes to collect money. What I am saying in paragraph 1 of written deposition. I disagree with you that I didn’t make any deposit of N15M. I did. I…’’

In examination of Appellant’s witness; ARODOYE KEHRDE JOSEPH at page 209 OF RECORD STATED;
‘’We have auditors. The ones who come to the bank are internal auditors. I know Nkemachor Wilson who is on internal auditor to our bank. …. they are presently on trial.’’

It is clear that the Respondent claimed he did not know when he made the deposit, having stated that he usually get credit letters, he does not go to bank instead the Manger comes to collect money. These are details within his knowledge.

The query is; when he did not get credit letters on the said deposit of N15M why did he not raise alarm? Strangely! He did not say a word until he received the statement. It appears to be the only one in the statement complained about. It is definitely his personal arrangement that the bank Manager will pick up money from his house.

In the foregoing, it behoves on the Respondent to prove that he handed over the amount to the manager, the date of this transaction, venue and details of what was handed over, witnesses if possible.

It is deducible therefore, that the statement was made sequel to a criminal investigation of illegal transfer which was inconclusive and such statement was not verified by the police, it cannot be termed an admission against interest or any admission.

What is an admission against interest? ABDULSALAMI V AFRICAN PETROLEUM & ORS2019 LPELR-51796 (CA).
Whether a statement made by a party either in course of a trial or otherwise will amount to an admission against interest depends on the circumstances in which the statement and context in which the statement was made and whether the truth of that statement is established by other pieces of evidence. See MR. SUNDAY OSHAFUNMI & ANOR V MRS SHERIFAT ADEPOJU & ANOR (2014) LPELR—23073 (CA), ANASON FARMS LTD V NAL MERCHANT BANK(1994) 3 NWLR (PT 331) 241.

A condition of admission must be clear unequivocal and free from ambiguity.
See; NARINBEX TRUST LTD &ANOR V NIG INTERCONTINENTAL MERCHANT BANK LTD &ANOR (2001) 26 & LRN 83 AT 16 it was held;
‘’An admission is an express and implied concession by an express or implied concession by a person to the truth of an alleged act’’

In this appeal, as earlier stated at the risk of repetition, it is a personal statement of one of the Internal Auditors of the Appellant to the Economic Financial Crime Commission during a criminal Investigation of the alleged fraud in the bank. It is pertinent to note that, it was not written to the Appellant nor Respondent, he is not a party to this action, he is an employee of and therefore cannot be an implied or direct concession. It is a misapprehension of the Respondent and cannot be an express admission against the bank. It cannot bind the Appellant Bank.

In this appeal, one must ask if the statement was made in official capacity? Can the respondent or Court rely on it as an admission? I am afraid not!!

Furthermore, it is trite that he who would lose, should judgment be entered against him, if no evidence is adduced must prove. See Section 131(1) & 132 (1) of Evidence Act, 2011.
1. whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
3. The burden of proof in suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
The above applies in this appeal.
See EDOBOR V OLOTU & ANOR (2012) LPELR-9288 (CA).

It is the Respondent who asserts that the said N15m was collected or handed over to the Manger in his house to deposit same in the bank, duty behoves that he proves this, it is not an ipsi dixi. He can even ask for the issue of a subpoena on the manager before the Court; all this is the burden on the Respondent to discharge, It does not shift until done

The long and short of this matter is that; there was no evidence that the said amount was collected or deposited in the bank, even if collected it could still be evidenced by a teller or posted in the statement, he did not show any protest when he did not see or find any post, it was until the incident before he claimed that he deposited this amount. In all his correspondences it was not raised. Even after exhibit G, is the letter of the Regional, Territorial Manger Exhibit E1 stating that investigation was yet to be concluded? This was written after exhibit G, therefore exhibit G could not have represented the conclusive current situation of the matter under investigation.

In the light of the above, I am satisfied that the statement of the auditor (Exhibit G) does not and cannot amount to admission.

Furthermore, Appellant contended that the judgment is against the weight of evidence, I agree that the lower Court erred in holding that exhibit G the documentary evidence showed that the sum of N85M was withdrawn from the Respondent‘s account, and that exhibits C, D & G strengthens the claimant’s case. Exhibit C is transaction inquiry of the Respondent’s account, D is the Respondent’s statements showing a clear picture of all deposits made by the Respondents and the sum of N15M is conspicuously missing, it shows, it was not deposited hence not captured. Exhibit E1 does not support the claim of the Respondent either.

The lower Court misapplied the burden of proof when she held that exhibit G was an admission, while ignoring that issues had been joined on the pleadings by parties, see paragraph 4 of the amended statement of claim, exhibits A 1-18 & exhibit C also para 4-8 of the Respondent amended statement of defence.

This shows the Respondent needed to go the extra mile to support his allegation which was built on exhibit G to strengthen same, I agree that the weight of evidence is against the judgment.

The Court adopted the address of counsel and elevated same to evidence and thereby fell into error in holding that exhibit G was an admission and acted heavily on it. See; SEGUN OGUNSANYA V STATE 2011 FWLR PT 590 1223.

On the whole, I resolve all the issues in favour of the Appellant.
The appeal has succeeds and it is allowed.

The judgment of KUEJUBOLA J. of Effurun High Court, Delta State is set aside.

The Respondent’s claims in Suit EHC/33/2011 are dismissed.
Cost of N200,000 is awarded against the Respondent.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, A.O. OBASEKI-ADEJUMO, JCA, in this appeal. I am in agreement with the reasoning and conclusion therein that the appeal has merit. I too allow the appeal. I abide by the consequential orders made therein.

JOSEPH EYO EKANEM, J.C.A.: I read in advance, the lead judgment of my learned brother, OBASEKI-ADEJUMO. JCA. which has just been delivered. I agree with the reasoning and conclusion therein that the appeal has merit.

For the reasons contained in the lead judgment, I allow the appeal, set aside the judgment of the trial Court and dismiss the suit of the Respondent.