UNION BANK v. MAISHINKAFA (2022)

UNION BANK v. MAISHINKAFA

(2022)LCN/16588(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, February 18, 2022

CA/K/93/2018

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

UNION BANK OF NIGERIA PLC APPELANT(S)

And

ALHAJI GARBA ALI MAISHINKAFA RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE CERTAIN DOCUMENTS ARE ADMISSIBLE IN EVIDENCE UPON THE FULFILLMENT OF CERTAIN CONDITIONS

It is however well settled that where certain documents are admissible in evidence upon fulfillment of certain conditions or under certain circumstances, a party who fails to object to their admissibility in the trial Court cannot do so in the appeal Court. But where the documents complained of is in no circumstance admissible in law, the evidence cannot be acted upon even if the parties admitted it by consent. See Reami v. Akintoye (1986) 3 NWLR (Pt. 26) 97; First Bank of Nig. Plc v. Excel Plastic Industry Ltd (2003) FWLR (Pt. 160) 1652. In this instant case, Exhibit G is admissible in law and it was tendered by the Appellant at the trial Court. Therefore the question of raising an objection to the admissibility of the document at the trial Court does not arise. It is therefore quite illogical for the Appellant to raise an objection to the admissibility of the document in the appeal Court. It is indeed irrational and a clear affront to common sense. PER TALBA, J.C.A.

WHETHER OR NOT DOCUMENTARY EVIDENCE IS THE BEST EVIDENCE

THE POSITION OF LAW WHERE DOCUMENTS ARE ADMITTED DURING THE COURSE OF A TRIAL

WHETHER OR NOT A PLAINTIFF CAN RELY ON THE WEAKNESS OF THE CASE OF A DEFENDANT

At this stage, it is important to restate the trite position of the law that a Plaintiff should not rely on the weakness of the case of a defendant but rather on the strength of his case as proved in Court. See Mrs. Ethel Onyemaechi David Orji v. Dorji Textiles Mills (Nig) Ltd & 2 Ors (2009) 12 SC (Pt. 111) 73, E.O. Amodu v. Dr. J. O Amode & Anor (1990) 9-10 SC 61, Alhaji Adebola Olakunle Elias v. Chief Timothy Omo-Bare (1982) 5 SC (reprint) 13, Christian Ewo & 3 Ors v. Ogbodo Ani & 17 Ors (2004) 1 SCN 1.
However, although the law is that the Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, the Plaintiff may take advantage of the defendant’s evidence where it supports or strengthen his own case. See Memudu Ajiboye v. Alhaji Oloyede Ishola (2006) 6 SCNJ 18, Oyinloye v. Esinkin (1999) 6 SCNJ 287, Olusile v. Maiduguri Metro Council (2004) 4 NWLR (Pt. 863) 290 and Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) 370. PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Kaduna State in Suit No. KDH/Z/297/2013 delivered on the 26th day of September, 2017. The Respondent as Plaintiff at the trial Court instituted an action vide a writ of summons along with a statement of claim, against the defendant now Appellant. In response, the Appellant filed a statement of defence and a counter-claim. The Respondent filed a reply to the Appellant’s statement of defence and a defence to the counter-claim. Both the Respondent and the Appellant amended their statement of claim and statement of defence respectively. And a consequential amendment of the Respondent’s reply to the amended statement of defence.

The Respondent/Plaintiff’s claim against the Appellant/Defendant are as follows:
(a) A declaration that the banking facility letter dated 06/03/2013 was not read and translated to the Plaintiff who is an illiterate and the said banking facility letter did not contain any illiterate Jurat.
(b) A declaration that banking facility letter dated 06/03/2013 did not create a valid contractual relationship between the Plaintiff and Defendant enforceable in law.
(c) A declaration that all monthly interest charges, values added tax, compound interest charge the Plaintiff by the Defendant is not contained in the unexplained banking facility letter dated 06/03/2013 offered the Plaintiff same charges are illegal, null and void contrary to the terms of the banking facility dated 06/03/2013.
(d) A declaration that it is only interest per annum that is contained in the banking facility letter and not compound, vague and other unascertainable interest charges.
(e) A declaration that the Defendant has not shown how it arrived at the compound interest charged on the Plaintiff’s account.
(f) A declaration that there was no legal demand forwarded to the Plaintiff for repayment of the overdraft facility dated 06/03/2013 from the Defendant.
(g) A declaration that the deed of Mortgage over property covered by certificate of occupancy No: KD 19007 created in favour of the defendant is incompetent, null and void in law and transfers no interest to the Defendant.
(h) An order of perpetual injunction restraining the defendant, its agents or privies from threatening and embarrassing the Plaintiff with the purported sale of Plaintiff’s property covered by Certificate of Occupancy No. 19007.
(i) The cost of this action.

The Appellant/Defendant’s counter-claim against the Respondent/Plaintiff are as follows:
1. A declaration that the deed of Legal Mortgage dated 30/11/2013 between the Plaintiff and the Defendant is valid and subsisting.
2. The sum of N25,396,278.37 in favour of the Defendant/Counter-Claimant and against the Plaintiff/Defendant.
3. 22% interest on the total amount as in above i.e N25,396,278.37 from the date of filing this action upto the date of judgment.
4. 10% interest on the total amount claimed hereof N25,396,278.37 from the date of judgment up to when the judgment sum is liquidated.
5. Is the omnibus prayers.

The relevant facts of this case may be succinctly stated as follows:
The Respondent who trades under the name ALH. ALI GARBA MAISHINKAFA being a customer to the Appellant applied for an overdraft of N20M in the year 2012. The Appellant gave approval in the month of March, 2013 wherein the Respondent was granted an overdraft of N12M and a temporary overdraft of N10M, totaling N22M. The N10M was to expire within five months while the N12M was for 60 days. In other words, the overdraft of N12M will expire on the 13/08/2013 while the temporary overdraft of N10M will expire in Sixty days (60) time, that is 04/05/2013. The purpose of the facility is working capital to enable the Respondent to procure some truckloads of rice to be sold during the Christmas and new year period. The facility was granted vide Exhibit E which contains the terms and conditions of the contract between the Respondent and the Appellant. To prove his case the Respondent called one witness to wit; Alhaji Garba Ali Maishinkafa (PW1) while the Appellant called one witness that is Muhammad Isa (DW1). The Respondent tendered five (5) Exhibits to wit; Exhibits A – E while the Appellant tendered four (4) Exhibits to wit; Exhibits F – I. Both counsel filed and adopted written addresses. In a considered judgment the learned trial Judge entered judgment in favour of the Respondent. The learned trial Judge held thus:
“To my mind this document which speaks better than any parole evidence says it all. The Plaintiff has not only paid his overdraft over a period of July 2013 to the 24th/05/2015 as Exhibited on Exhibit G but has a credit of N178, as documentary evidence is the best, consequently, Exhibit G has exonerated the Plaintiff of liability.”
The learned trial Judge further held thus:
“Having considered the Defendant/counter-claimants claim the counter-claimant has not discharged the burden placed on it by law to warrant the grant of all its claim in the counter-claimants favour. I hereby dismiss all the Defendants counter-claim against the Plaintiff.
Equally, having discovered that the document relied on by the defendant/counter-claimant is in favour of the Plaintiff. I hereby enter judgment in favour of the Plaintiff as follows:
1. The banking facility granted the Plaintiff by the Defendant, the sum of N22M has been fully liquidated as contained on Exhibit G and it is hereby declared as fully liquidated.
2. Under the omnibus prayers, the certificate of occupancy no: 19007 deposited with the defendant as collateral shall be released to the Plaintiff forthwith.
3. The Defendant is hereby perpetually restrained either by itself and or its agents, servants, privies or whatsoever from further threatening, embarrassing, selling or tempering with the Plaintiff’s property covered by certificate of occupancy No: KD 19007.”

Aggrieved by the judgment of the trial Court the Appellant filed a notice of appeal on 3/10/2017. It is at pages 402 – 405 of the record transmitted on 8/2/2018 and deemed on 17/9/18. The notice of appeal contain four (4) grounds of appeal. At the hearing of the appeal on 22nd November, 2021 A. H. Bello who settled the Appellant’s brief of argument, filed on 15/10/18 adopted same and he urged the Court to allow the appeal and set aside the judgment of the lower Court. Vincent Soligbo who settled the Respondent’s brief of argument filed on 21/11/18 and deemed on 5/3/2019, adopted same and he urged the Court to dismiss the appeal and affirm the judgment of the lower Court. From the four (4) grounds of appeal the Appellant distilled three issues for determination thus:
1. Whether the Honourable trial Court was right when it gave judgment in favour of the Plaintiff/Respondent by relying on the weakness of the Defendant’s case. (Ground 11).
2. Whether the Hon. Trial Court Judge was right when it awarded reliefs not sought by the Plaintiff/Respondent. (Ground 111).
3. Whether the Hon trial Judge was right when it did not properly evaluate the evidence adduced and gave probative value to Exhibit G which was not tendered through any witness nor identified by any witness.

The Respondent equally raised three issues for determination thus:
1. Whether the Appellant can set up a different case on appeal as against its counter-claim at the lower Court in view of the fact from the record that there was a main claim filed by the Respondent and a separate counter-claim filed by the Appellant requiring proof of same respectively. (Ground ii).
2. Whether the Appellant who tendered Exhibit G which is in its custody in proof of the alleged monetary debt contained in its counter-claim can resile and discountenance same Exhibit G and whether the same Appellant had discharged the burden of proving its entire counter-claim if Exhibit G is expunged. (Ground iv)
3. Whether the learned trial Judge is correct to have evaluated Exhibit G pleaded and tendered by the Appellant in proof of its counter-claim and consequently held that the Respondent was not indebted to the Appellant and ordering that the Appellant return the Respondent’s title documents in tandem with the Respondent’s omnibus prayer contained in its counter-claim. (Omnibus ground and ground iii)

It is clear that no issue is raised from ground one. The law is settled that where no issue is formulated from a ground of appeal, it is deemed abandoned. Consequently, ground one is struck out.

I have perused the issues raised by counsel, it is my view that the three issues formulated by the Appellant as well as the three issues formulated by the Respondent respectively cover all the three grounds of appeal as each of the three grounds of appeal in the end result, is concerned with the question of evaluation of evidence by the trial Judge. For this reason, although I shall in this judgment adopt the three issues formulated by the Appellant, nevertheless, I shall treat them together.

The Appellant counsel submitted that the burden of proof in civil matters lies on the Plaintiff who must satisfy the Court by leading concrete, cogent and credible evidence with a view to establish his claim on its strength and not upon the weakness of the defence. He cited and relied on Section 131 of the Evidence Act, 2011. He submitted that the Respondent as Plaintiff at the trial Court failed to prove his claim against the Appellant to warrant judgment in his favour. See Maritime Academy of Nigeria v. A. Q. S (2008) All FWLR (Pt. 406) 1876 and Ehikhametalo v. Iyare (2014) All FWLR (Pt. 740) 1393.

Learned counsel submitted that the Respondent’s indebtedness to the Appellant is not in any way in dispute having regard to the statement of claim and the witness deposition on oath of PW1. And the only quarrel if any which the Respondent had with the Appellant is that of the charges. The Appellant had consented to whatever the Appellant may draw as its charges on the facility, as evidenced by Exhibit E, which the trial Court had resolved in favour of the Appellant as contained on pages 396 – 398 of the record of appeal. But yet the trial Court entered Judgment in favour of the Respondent who could not prove his claim. On the principle that: “The Plaintiff is entitled to judgment to the extent of what it can prove out of its claim” he cited the case of Afribank (Nig.) Ltd v. Moslad Enterprises Ltd (2008) All FWLR (Pt. 421) 877. And in the case of Anyanru v. Mandilas Ltd (2007) All FWLR (Pt. 368) 1847 at 1849, the Court held that:
“It is for a claimant to prove his case and not for the opposition to disprove the claimant’s claim. Therefore, where the claimant on his own evidence failed to prove, his claim for declaration his claim must be dismissed.”

The Appellant’s counsel submitted that the learned trial Judge granted two reliefs not sought by the Respondent, reliefs one and two. Throughout the pleadings or during trial, the Respondent never mention that he has liquidated the sum granted to him by the Appellant. The learned trial held thus; “the banking facility granted the Plaintiff’s by the Defendant, the sum of N22M has been fully liquidated as contained on Exhibit G and it is hereby declared as fully liquidated”. The decision of the learned trial Judge is perverse and unwarranted hence the Respondent never claimed to have paid the loan and he did not ask for such relief. During cross-examination PW1 said:

“I benefited from the loan … they kept disturbing me by visiting my house, my office and writing to me.
Yes, I stopped making payment and I have not fully paid my loan because I was paying N500,000 fortnightly, it’s as if I have not been making payments at all.” See page 388 of the Record.

The Respondent did not seek for the omnibus prayer as per his claims but the learned trial Judge granted the second relief thus:
“Under the omnibus payers, the certificate of occupancy no: KD 19007 deposited with the Defendant as collateral shall be released to the Plaintiff forthwith.”

Learned counsel cited the case of OTU v. ACB INTERNATIONAL BANK PLC & ANOR (2008) All FWLR (Pt. 406) 1817 at 1847 para’s D – E where Aderemi JSC held thus:
“… when no relief or order is sought, the Court does not grant any if will be an undeserved indulgence on the part of the Court to so do.”

Also in the case of Balogun v. E. O. C. B (Nig.) Ltd (2007) All FWLR (Pt. 382) 1952 at 1960; Okoro JCA (as he then was) held thus:
“It is trite that a Court is without power to award a claimant what he did not claim and/or prove”

Learned counsel further relied on the case of Dapianlong & 5 Ors v. Dariye & 1 Or (No. 1) 2007) All FWLR (Pt. 373) 1-80 at 42 paras D – G, the Court held thus:
“A Court of law is confined to the relief or reliefs of the Plaintiff. It does not go outside the relief or reliefs to grant what the Plaintiff does not ask for. A Court can grant all the reliefs sought by the Plaintiff. It can also grant part of the reliefs but it cannot grant reliefs not sought by the Plaintiff. It can also grant part of the reliefs but it cannot grant reliefs not sought by the Plaintiff (Attorney General Abia State v. Attorney Federation (2006) All FWLR (338) 604; (2006) 16 NWLR (Pt. 1005) 265, Ojo v. Abogurin (1989) 5 NWLR (Pt. 120) 162, Ugo v. Obiekwe (1989) 1 (Pt. 512) 174, Udom v. E. Micheletti and Sons Ltd (1997) 8 NWLR (Pt. 516) 187, Olaopa v. O. A. U. Ile – Ife (1997) 7 NWLR (Pt. 512) 204 and Ezeakabekwe v. Emenike (1998) 11 NWLR (Pt. 575) 529 referred to para D – G.”

The Appellants counsel submitted that the trial Court based its decision on Exhibit G, the statement of account. Although it was tendered by the Appellant, it was not properly in evidence as it does not satisfy the requirement provided by Section 84 of the Evidence Act. Evidence in relation to the use of the Computer must be called to establish the conditions set out under Section 84(2) of the Evidence Act. The learned counsel referred to Sections 84(1) and (4) of the Evidence Act. And Section 90(1)(e) of same. He submitted that it is only an officer of the bank who has examined the copy with the original entry, that can satisfy that it is correct either by oral testimony or by affidavit. Learned counsel submitted further that Exhibit G tendered by the Appellant has no probative value and as such needed not to be attached any weight.

In his response, the Respondent counsel submitted that the Appellant’s appeal and its defence/counter-claim at the lower Court are inconsistent with what is canvassed in this appeal. The Appellant’s notice of appeal and brief of argument misrepresents the true position as if there was never in existence a counter-claim which require evidential proof. He referred to the case of Horizon Fibres Nig. Plc v. M. Y. Bacokiner & lar (2002) 8 NWLR (Pt. 769) 464, Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254 and Garba v. Kur (2002) 8 NWLR (Pt. 831) 280. Learned counsel also relied on the case of APGA v. Chief Victor Umeh (2011) 2 -3 MJSC (Pt. 1) 96 at 127 – 128 para’s F – C where the Supreme Court held thus:
“A party should be consistent in stating its case and consistent in proving it. He will not be allowed to take one stance in his pleadings then turn summersault during trial, then assume non-chalant attitude at the Court of Appeal only to revert to his case as pleaded with the Supreme Court. A party cannot be allowed to depart from his case as set out at the lower Court at the appellate Court.”
See also Shuaibu v. State (2017) All FWLR (Pt. 897) 973 at 1999 – 2000 paras E – H.

Learned counsel submitted further that Exhibit G was pleaded in paras 10, 14 and 16 (ii)(iv) of the Appellant’s amended statement of defence and counter-claim, and paras 4 and 22 of the DW1 witness deposition on oath. The Appellant cannot be heard to resile and dispute tendering Exhibit G from their custody, which was properly evaluated by the learned trial Judge in finding as a fact contrary to the Appellant’s counter-claim, that the Respondent was not indebted to the Appellant. Exhibit G, the statement of account tendered by the Appellant at the lower Court to prove its counter-claim, clearly discloses that the Respondent is not indebted to the Appellant as rightly observed in the findings of the learned trial Judge. The learned counsel relied on the case of Owoyemi v. Adekoya (2004) All FWLR (Pt. 196) 881 at 903 paras G – H where the Court held thus:
“The Plaintiff must succeed on the strength of his case and not on the weakness of the defence although he is entitled to rely on evidence revealed in such weakness to strengthen his case …“

The Appellant who tendered Exhibit G cannot turn around to complain that the document is inadmissible. Learned counsel relied on the case of SPDC v. Edamkue (2009) All FWLR (Pt. 489) 407 at 429 paras F – H where the Court held thus:
“If a counselor party treats a document or procedure or matter as admissible or regular e.t.c then he cannot be heard or be at liberty to object or complain later on before an appellate Court. Having consented to the Respondent’s application to amend, the Appellant in the instant case cannot now resile or complain. The consent was and amounted in an undertaking that they had permanently waived their right if any to object or complain.”

The learned counsel further relied on the case of Unipetrol Nig. Plc v. Buraimoh (2004) 15 NWLR (Pt. 897) 641 at 658 paras B where it was held that:
“A party who did not object to the admissibility of a document at the trial cannot do so on appeal. In the instant case, since the Appellant did not object to the admissibility of Exhibit “H” at the trial, it could not raise an objection thereto for the first time on appeal.”

Exhibit G along with all other Exhibits were tendered during pre-trial conference as provided for by Order 26 Rules 1 and 3 of the High Court of Kaduna State (Civil Procedure) Rules 2007. And rules of Court which are in tandem with statutory provisions like evidence Act must be obeyed. SeeFSB International Bank Ltd v. Imano (2001) NWLR (Pt. 751) 1.

The Respondent counsel submitted that there is nowhere in the Appellants counter-claim where it was alleged via pleadings and evidence of DW1 that Exhibit G is a computer generated statement of account. The Appellant cannot at this stage approbate and reprobate at the same time as such practice is frowned upon by the Courts. He referred to the case of Darma v. Batagarawa (2002) 17 NWLR (Pt. 796) 243.

Learned counsel submitted further that Exhibit G which is a bank statement of account without more does not fall into any of the exceptions wherein certain preconditions have to be fulfilled before it can be tendered. It is relevant and the Appellant from whose custody it emanated and it was tendered never withdrew same throughout trial despite the numerous applications for amendments. Therefore the Court is entitled to act on it. See Ezomo v. NNB Plc. And having found that the Respondent is not indebted to the Appellant, the learned trial judge had the inherent power and jurisdiction to consequentially in the interest of justice grant the 2nd and 3rd judgment orders. He relied on the cases of Akpanudoedehe v. Akpabio & 3 Ors (2013) 7 NWLR (Pt. 1354) 419 at 585 and Bogban v. Diwhre (2005) 16 NWLR (Pt. 95) 274, it was held inter alia that a Court is however entitled to make orders that are consequent upon a valid judgment, ruling or any decision and which are to give effect or value to the order of Court and that the judgment is not perverse but based on evidence before the lower Court. See also Balogun v. Agbesanwa (2001) 7 NWLR (Pt. 741) 118 at 141 para’s C-E.

Now the crux of this appeal which emanated from the Appellants grievance is that the trial Court relied on Exhibit G, the statement of account, in its finding that the Respondent is not indebted to the Appellant and consequently ordered the Appellant to release to the Respondent the certificate of occupancy no: KD 19007, deposited with the Appellant as collateral. The order for release was granted pursuant to the omnibus prayers. The next thing to decide in consequence of the above is whether the documentary evidence Exhibit G was properly admitted in evidence. And whether the trial Court was right to have relied on Exhibit G in its finding that the Respondent is not indebted to the Appellant. And finally, whether the learned trial judge was right to have granted the order for the release of the certificate of occupancy deposited with the Appellant as a collateral, while relying on the Omnibus prayers, hence there was no claim for such a relief.

The starting point is to consider whether Exhibit G was properly admitted in evidence. Exhibit G was tendered along with three other documents which includes Exhibit F, the certificate of occupancy no: KD 19007. They were tendered by the Appellants counsel on the 30/11/16 during the pre-trial conference. See page 387 of the record of appeal. Order 26 Rules 3(d) of the Kaduna State High Court (Civil Procedure) Rules 2007 provides:
“26-3. At the pre-trial conference, the judge shall consider and take appropriate action with respect to such of the following (or aspects of them) as may be necessary or desirable (d) Control and scheduling of discovery, inspection and production of documents.”

At the time Exhibit G was tendered and admitted in evidence there was no mention of the fact that it’s a computer generated document which requires compliance with Section 84 of the Evidence Act. It was tendered by Appellants counsel in the absence of the Respondents counsel. When the trial Court asked the Respondent where is your counsel? The Respondent answered thus:
“My Counsel has travelled, I pray the Court to grant me a 2 weeks adjournment to enable him return.”
Then the Appellants counsel A. H Bello told the Court that:
“The matter is to tender some documents on which the Plaintiff’s counsel from our discussion he is not opposing. We have four documents we intend to tender.”
Thereafter the trial Court ruled as follows:
“The C of O No: KD 19007 is marked as Exhibit F
– Statement of account dated 19/07/2016 is marked as Exhibit G
– The letter dated 17/06/2013 is marked as Exhibit H
– The deed dated 30/11/2009 is marked as Exhibit I.”
See pages 387 of the record of appeal.

In the case of Mrs. Elizabeth N. Anyaebosi v. R. T. Briscoe (Nig) Ltd (1977-1988) 2 SCJE page 511 at 535, the Court held that:
“A computerised statement of account does not fall into the category of evidence absolutely inadmissible by law as it is admissible as secondary evidence under Section 97(2) (now S. 90(1) of the Evidence Act in respect of the documents stated in Section 97(1), (d) or (g) (Now S. 89(1) of the Act.”

And in the case of Narindex Trust Ltd & Anor v. Nigerian Intercontinental Merchant Bank Ltd (2001), 5 SCM 126, the Supreme Court held that it is not necessary according to law that the words of the Section 97(2)(e) must be strictly followed word to word before secondary evidence of entries in the ledger of the bank is admitted in evidence once there is substantial compliance.

It is however well settled that where certain documents are admissible in evidence upon fulfillment of certain conditions or under certain circumstances, a party who fails to object to their admissibility in the trial Court cannot do so in the appeal Court. But where the documents complained of is in no circumstance admissible in law, the evidence cannot be acted upon even if the parties admitted it by consent. See Reami v. Akintoye (1986) 3 NWLR (Pt. 26) 97; First Bank of Nig. Plc v. Excel Plastic Industry Ltd (2003) FWLR (Pt. 160) 1652. In this instant case, Exhibit G is admissible in law and it was tendered by the Appellant at the trial Court. Therefore the question of raising an objection to the admissibility of the document at the trial Court does not arise. It is therefore quite illogical for the Appellant to raise an objection to the admissibility of the document in the appeal Court. It is indeed irrational and a clear affront to common sense.

In other words, the counsels contention in this regard does not show any respect for common sense. Exhibit G was properly admitted in evidence being an admissible evidence and having been admitted by consent. The objection to the admissibility of the document at this stage is without any legal and moral justification. The learned trial judge was on a sound footing when he refused to close his eyes on the document and he acted on it. What follows next is whether the learned trial judge was right in his finding that the Respondent is not indebted to the Appellant upon reliance on the document. In order to answer this question, it is necessary to examine the document. Exhibit G has an opening balance of zero naira on the 1st January, 2009.

Bearing in mind the fact that the Respondent was granted a facility by the Appellant vide Exhibit E dated the 06/03/2013. And having regard to the fact that judgment was delivered by the trial Court on the 26/09/2017. I shall begin with the transaction dated 18th March, 2015. It reads thus:
“Account No: 0032864033
Statement Print Date: 19 July, 2016
Alh G. A Maishinkafa Start Date: 01 Jan, 2009
No. 9 Bindare Street Sabon Gari Zaria NG
End Date: 19 Jul, 2016
Branch Name: Zaria
Account Type: Current Account-Individual
Currency: NGN
Post Date Transacctnamion Desc. Doc No. Value Date Dr Cr Balance
18-Mar-15 Renewal of INS Policy 18-Mar-15 36,000.00 -41,454,651.36
31-Mar-15 Debit Interest Capitalized 31-Mar-15 1,302,077.83 -42,756,729.19
02-Apr-15 0032864033 Transfer to 000000000011 01-Apr-15 42,756,729.19 0.00
Memorandum
28-Apr-15 R/O/E INT Refund 02/02/2015 28-Apr-15 1,283,535.49 -1,283,535.49
Non-Performing Accounts
30-Apr-15 Debit Interest Capitalized 01-May-15 3,903.35 -1,287,438.84
05-May-15 R/O/E INT Refund 02/02/2015 28-Apr-15 1,283,535.49 -3,903.35
Non-Performing Accounts
05-May-15 R/O/E INT Refund 02/02/2015 28-Apr-15 1,283,535.49 1,279,632.14
Non-Performing Accounts
17-Jun-15 SMS Alert Charges May-2015 SMS21622845 17-Jun-15 16.00 1,279,616.14
29-Jun-15 SMS Alert Charges Jun-2015 SMS23069363 29-Jun-15 4.00 1,279,612.14
31-Jul-15 SMS Alert Charges Jul-2015 SMS24533053 31-Jul-15 4.00 1,279,608.14
17-Aug-15 0032864033 Int Excess Refund 17-Aug-15 1,279,508.14 100.00
28-Aug-15 SMS Alert Charges Aug-2015 SMS26025010 28-Aug-15 8.00 92.00
06-Oct-15 SMS Alert Charges Sep-2015 SMS27533241 06-Oct-15 4.00 88.00
29-Oct-15 SMS Alert Charges Oct-2015 SMS29057429 29-Oct-15 4.00 84.00
08-Dec-15 SMS Alert Charges Nov-2015 SMS30604482 08-Dec-15 4.00 80.00
07-Jan-16 SMS Alert Charges Dec-2015 SMS32124864 07-Jan-16 4.00 76.00
24-May-16 Cash Deposit By Alh GA FJB1614532801560 24-May-16 5.00 81.00
OPENING BALANCE- 0.00
TOTAL DEBIT AMT- 409,239,818.84 DR COUNT- 380
TOTAL CREDIT AMT- 409,239,899.84 DR COUNT- 178
CLOSING BALANCE- 81.00.”

In his judgment, the learned trial judge held thus:
“In proving its counter-claim, the defendant tendered Exhibits F, G, H and I as well as called one witness who deposed to his evidence on oath and was duly cross-examined. Exhibit F is the Certificate of Occupancy willingly used by the Plaintiff as a collateral for the procurement of the loan in issue, while Exhibit G is the statement of account of the Plaintiff kept by the defendant from the year 01/01/2009 to 24/05/2016. From the face of Exhibit G in particular the entries from 29, June, 2015 to 24 May, 2016 and the calculations at the bottom of Exhibit G at page 23, it clearly shows that the Plaintiff’s account has a credit of N178. If I may quote for a clear understanding
“OPENING BALANCE – 0.00
TOTAL DEBIT AMT- 409,239,818.84 DR COUNT- 380
TOTAL CREDIT AMT- 409,239,899.84 DR COUNT- 178
CLOSING BALANCE- 81.00
From the above, it shows that the Plaintiff is no longer indebted to the defendant. I refer to the various entries in the Plaintiff’s account as contained on Exhibit G for purpose of clarity.
From the month of June, 2013 on 17th in particular when the Plaintiff wrote Exhibit H to the defendant the Plaintiff made various payments as evidenced on pages 20-23 of Exhibit G for instance the following various sums of N500,000 and N200,000 on 15/08/2013, N200,000 on 29/8/2013, N36,586,525.15 on 01/12/2014, N42,256,762.19 on 02/04/15 N1,283,535.49 on 05/05/2015, N1,283,535.49 on 05/05/2015.
To my mind, this document which speaks better than any parole evidence says it all. The Plaintiff has not only paid his overdraft over a period of July, 2013 to the 24/05/2015 as exhibited on Exhibit G but has a credit of N178 as documentary evidence is the best consequently Exhibit G has exonerated the Plaintiff of liability.”

From the excerpts of the judgment one cannot but agree with the learned trial judge that the Respondent had paid the loan and he even has a credit balance as at 24/05/2016. But the only point of correction is that the credit balance as at 24/05/2016 is N81:00 as against N178. The 178 is the credit count, along with the debit count of 380.

It is without any doubt that documentary evidence is the best evidence. The document being the best proof of its contents, no oral evidence will be allowed to discredit or contradict the said contents except in cases where fraud is pleaded. See Sky Bank Plc & Anor v. Chief Moses Bolanle Akinpelu (2010) 3 SC (Pt. 11) 29, Chief S. O Agbarah & Anor v. Dr. Anthony Mimra & Ors (2008) 1 SCNJ 409, Salzgitter Stahl Gmbh v. Tunji Dosunmu Industries Ltd (2010) 3-5 SC (Pt. 11) 54 and Vincent U. Egharevba v. Dr. Orobor Osagie (2019) 12 SC (Pt. 111) 123.

It is pertinent to point out that Exhibit G subject of contention was tied to and related to the Appellants case through its witness DW1 Mohammed Isah a staff of the Appellant. On the 26/04/2017 (at page 391 of the record) he adopted his witness deposition on oath dated the 4th day of April, 2016. In paragraph 14 of his witness deposition on oath at page 297 of the record he stated thus:
14. “That I know as at 30/11/2013, the Plaintiff’s account number 0032864033 is in debit in the sum of N25,396,278.37 which accrued and became due for repayment in favour of the Defendant, as a result of non-servicing the loan properly, the statement of account of the Plaintiff as found from the entry books of the Defendant made in the usual and ordinary course of banking business and found to be correct is relied upon.”

It is in view of the above I hold that the learned trial judge was right when he placed reliance on Exhibit G and he gave evidential value to it.

It is settled law that where documents are admitted during the course of a trial, it is not open to those who consented to admissibility of such document to challenge the admissibility of such document on appeal. See Olanloye v. Fatunbi (1998) 8 NWLR (Pt. 614) 203, Unity life & fire Insurance Co Ltd v. IBWA (2001) 7 NWLR (Pt. 713) 610, UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 388 and Agbi v. Oghen (2005) 8 NWLR (Pt. 926) 109.

More particularly where a document is tendered by a party and admitted in evidence during trial, that same party cannot summersault and challenge the admissibility of the document on appeal. Such a party cannot be allowed to eat his cake and have it at the same time, simply because he lost the case at the trial Court.

At this stage, it is important to restate the trite position of the law that a Plaintiff should not rely on the weakness of the case of a defendant but rather on the strength of his case as proved in Court. See Mrs. Ethel Onyemaechi David Orji v. Dorji Textiles Mills (Nig) Ltd & 2 Ors (2009) 12 SC (Pt. 111) 73, E.O. Amodu v. Dr. J. O Amode & Anor (1990) 9-10 SC 61, Alhaji Adebola Olakunle Elias v. Chief Timothy Omo-Bare (1982) 5 SC (reprint) 13, Christian Ewo & 3 Ors v. Ogbodo Ani & 17 Ors (2004) 1 SCN 1.
However, although the law is that the Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, the Plaintiff may take advantage of the defendant’s evidence where it supports or strengthen his own case. See Memudu Ajiboye v. Alhaji Oloyede Ishola (2006) 6 SCNJ 18, Oyinloye v. Esinkin (1999) 6 SCNJ 287, Olusile v. Maiduguri Metro Council (2004) 4 NWLR (Pt. 863) 290 and Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) 370.

In this instant case, Exhibit G clearly supports the Respondent’s case and therefore the Respondent is entitled to rely on it.

The last question is whether the learned trial judge was right when he granted the reliefs not sought by the Respondent.

It is trite law that a Court will not grant a relief which has not been sought or asked for by a Plaintiff. See Chief S. A. Okubule & Anor v. Thomas A. Oyagbola & 2 Ors. (1990) 7 SC (Pt. 11) 60, Garuba v. Kwara Investment Co. Ltd & Ors (2005) 1 SCM 79, Saura Yusuf v. Oladepo Oyetunde & 9 Ors (1998) 10 SCNJ 1. However in every general rule there is an exception. Thus a Court cannot give a relief not asked for by a party unless it is consequential. See Makanjuola v. Balogun (1989) 5 SC 82.
It is not whether a party has claimed any relief that determines if it ought to be granted, the Court must also consider whether such relief cannot be granted when the Court is exercising its equitable jurisdiction. See Chief Harold Sodipe & Ors v. Hon Justice Adenekan (1991-1992) ALL NLR 537.
In considering a claim before a Court the totality of the case is examined and analysed for a determination of the justice of the issues joined before the Court. See U.B.A Plc v. Achoru (1990) 9-10 SC 115. Generally the High Court has an inherent power to make orders even if not sought where such orders are “incidental” to the prayers sought. See Diamond Bank Ltd v. Partnership Investment Co. Ltd & Anor (2009) 12 SC (Pt. 11) 159.

On this note, I hold that reliefs 1 and 2 granted by the learned trial judge were incidental to the prayers sought. Accordingly therefore, the issues are resolved against the Appellant in favour of the Respondent. In the end result or final analysis, this appeal certainly lacks substance and merit. It fails and is liable to be dismissed.

Appeal is dismissed with cost of N100,000.00 against the Appellant.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, Abubakar Mahmud Talba, JCA.

He has dealt in depth with the issues canvassed by the parties. I agree with his reasoning and conclusions thereat. I adopt the judgment as mine. I have nothing else to add.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the leading judgment delivered by my learned brother, ABUBAKAR MAHMUD TALBA, JCA wherein the facts and issues in contention are set out.

I affirm my agreement with the reasoning and conclusion reached in the leading judgment and abide by the consequential orders contained therein.