UNION BANK v. TENOSYS GLOBAL KONNECT LTD & ANOR
(2020)LCN/15738(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, May 04, 2020
CA/L/562/2009
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
UNION BANK PLC APPELANT(S)
And
1. TENOSYS GLOBAL KONNECT LIMITED 2. OSITA OGBONNAYA RESPONDENT(S)
RATIO:
THE PRINCIPLE OF LAW ON THE GROUNDS OF APPEAL
It is a trite principle of law that an appellant cannot go outside the grounds of appeal in framing its issues for determination and arguments on the issues: NWANKWO vs. YAR’ADUA (2010) LPELR (2109) 1 at 51, SHITTU vs. FASHAWE (2005) 14 NWLR (PT 946) 671 at 687 andJEV vs. IYORTYOM (2014) 14 NWLR (PT 1428) 575 at 608. The grounds of appeal in turn must be rooted in and flow from the decision appealed against. See GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145, METAL CONSTRUCTION (WEST AFRICA) LTD vs. MIGLIORE (1990) 1 NWLR (PT 126) 299 at 311, 313-314 and UGWU vs. THE STATE (2013) LPELR (2017) 1 at 27. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
THE REVIEW OF THE EVALUATION OF EVIDENCE BY THE COURT
The nature of the duty of an appellate Court in reviewing the evaluation of evidence by the Court of trial is to find out whether there is evidence on which the trial Court acted as it did. Once there is such sufficient evidence on record from which the trial Court arrived at its findings of facts, an appellate Court cannot interfere: AKPAGBUE vs. OGU (1976) 6 SC 63, ODOFIN vs. AYOOLA (1984) 11 SC 72 and AMADI vs. NWOSU (1992) 5 NWLR (PT 241) 273 at 280. I have insightfully considered the testimonial and documentary evidence on record and I am not in any doubt whatsoever that the lower Court properly evaluated the evidence, ascribed probative value thereto and made findings of facts which flow from the evidence. In the circumstances, since the lower Court unquestionably evaluated the evidence and justifiably appraised the facts, this Court has no business to substitute its own views for the findings of the trial Court. See AKINLOYE vs. EYIYOLA (1968) NMLR 92 at 95, ENANG vs. ADU (1981) 11-12 SC 25 at 39 and WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
HE WHO ASSERTS HAS THE BURDEN OF PROOF
It is trite that theone who asserts has the burden of proof –
There is in fact denial of this allegation by the DW1 in her paragraphs 12, 13 of Evidence in chief as deposed to – which Deposition was ostensibly front loaded in compliance with the Rules of Court. Therefore, the claimant had notice and were aware that the said piece of evidence is a direct counter of theirs on the issue. It therefore becomes incumbent on the Claimant to bring further evidence to prove the bare assertion. The standard of proof in civil cases is on a balance of probabilities (or preponderance of evidence. Thus, where bare assertion meets with bare assertion, the fact in issue will be resolved in favour of the party who is able to draw the Court’s attention to some other piece of evidence which further authenticates its position. It is in that line that the points raised by defence counsel become relevant – bail bonds, cheques stubs, the name of IPO or officer of defendant bank who was at the station and whether or not statement was taken. In the absence of [sic] as to pre-ponderate any of the defendant’s assertion, I come to the conclusion that the Claimant did not discharge theburden it has to prove the allegation of arrest and harassment. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IS THE PRIMARY FUNCTIONS OF THE COURT
Let me iterate that the evaluation of evidence and ascription of probative value thereto are the primary functions of the Court of trial which saw, heard and assessed the witnesses. It is not the business of the appellate Court to substitute its views for those of the Court of trial where it has unquestionably evaluated the evidence and justifiably appraised the facts: AROWOLO vs. IFABIYI (2002) 4 NWLR (PT 757) 356 at 372. The lower Court eminently discharged its primary function so there is no rational basis on which its findings on the arrest, detention and wrongful disruption of the business activities of the Respondents/Cross Appellants can be interfered with.
THE PRINCIPLE ON THE DETERMINATION OF APPEAL
In Samson Awoyale vs. Joshua O. Ogunbiyi (1986) LPELR 662 (SC) the Apex Court had this to say;
“The basic settled principle for the determination of appeal on issues of facts by an Appellate Courts is that where the trial Court unquestionably has evaluated the evidence and appraised the facts, it is no longer the business of the Court of Appeal to embark on a fresh appraisal of such evidence and not to disturb findings of fact by the trial Court. See Akinloye and Anor v. Eyiyola and ors (1968) NMLR 92 at p. 95; Obisanya v. Nwoko (1974) 6 SC 69 at p. 80; Victor Woluchem and Ors v. Chief Gudi and Ors (1981) 5 SC 291 at p. 326-330. EBIOWEI TOBI, J.C.A.:
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This action arises from the banker/customer relationship between the Appellant/Cross Respondent and the Respondents/Cross Appellants. In the normal course of the banking relationship, the Appellant/Cross Respondent offered an equipment leasing facility and overdraft facility to the Respondents/Cross Appellants. The Respondents/Cross Appellants contending that the Appellant/Cross Respondent was mulcting them in extraneous charges and that they caused the arrest of the 2nd Respondent/Cross Appellant and interfered with the business of the Respondents/Cross Appellants instituted proceedings at the High Court of Lagos State in SUIT NO. ID/406/2005: TENOSYS GLOBAL KONNECT LIMITED & ANOR vs. UNION BANK OF NIGERIA PLC. They claimed the following reliefs:
“1. A DECLARATION that the Defendant is the one indebted to the first Claimant in the sum of N8,125,207.20.
2. AN ORDER directing the Defendant to pay to the first Claimant the sum of N8,125,207.20 immediately
3. A DECLARATION that the arrest and detention of the second Claimant from 7.00 am on 18th February till 8.30 a.m on19th February by the Defendant’s officers and officers of the state CID Panti Street for the purpose of the recovery of the purported debt due to the Defendant from the first Claimant is illegal, null and void.
4. AN ORDER OF PERPETUAL INJUNCTION retraining [sic] Defendant whether by itself its servant or agents or other representatives from interrupting the first Claimant’s business or paying visits to the second Claimant’s residence or threatening with arrest or detention or actually using law enforcement or other agents to arrest confine or detain the second Claimant or any of the first Claimants officers.
5. THE SUM OF N39 million special and general damages to the first and second Claimant made up as follows:
i. N24 million being damages for interference with the first Claimant’s business from 1st October 2004 till 31st March, 2005.
ii. N15 million being damages for unlawful arrest and detention of the second Claimant at the SCID Panti Street, office by the Defendant’s officers and officers of Nigerian Police at DCID Alagbon from 7.00a.m 18th February till 8.00pm on the 19th February, 2005.”The Appellant/Cross Respondent contending that the Respondents/Cross Appellants were indebted to it on the facilities counterclaimed for the following reliefs:
“i. The payment of the sum of N33, 716,267.61 (thirty three million seven hundred and sixteen thousand two hundred and sixty seven naira sixty one kobo) being the outstanding debt owed the Counter-Claimant by the Claimants jointly and/or severally which arose from the two (2) credit facilities granted to the 1st Claimant in March, 2003 and personally guaranteed by the 2nd Claimant which the Claimants have refused/neglected to pay down despite repeated demand.
ii. Interest at the rate of 22.5% per annum on the said N33.716,267.61 from the 1st of May, 2005 until judgment being default interest rate for the failure and/or refusal of the Claimants to liquidate their facilities duly and thereafter at 6% per annum until final liquidation.”
The matter went to trial and witnesses were called and documents were tendered in evidence. In its judgment, the lower Court dismissed both the claim and the counterclaim. The Appellant/Cross Respondent was dissatisfied with the judgment dismissingits counterclaim and appealed against the same by Notice of Appeal filed on 10th February 2009. The Respondents/Cross Appellants were equally dissatisfied with the judgment of the lower Court and pursuant to the leave of this Court granted on 11th April 2011, they filed a Notice of Cross Appeal on 21st April 2011. The judgment of the lower Court which was delivered on 10th November 2008 is at pages 314-324 of the Records. The Appellant/Respondent’s Notice of Appeal is at pages 325-327 of the Records, while the Respondents/Cross Appellants’ Notice of Cross Appeal is at pages 332-334 of the Supplementary (Additional) Record of Appeal.
The Records of Appeal having been settled, compiled and transmitted, the parties filed and exchanged briefs of argument. The briefs of argument which learned counsel for the parties relied on and adopted at the hearing of the appeal are:
“1. Appellant’s Brief of Argument filed on 22nd March 2011 but deemed as properly filed on 11th April 2011
2. Respondents’/Cross Appellants’ Brief of Argument filed on 3rd May 2013 but deemed as properly filed on 9th November 2018.
3. Appellant’s Reply/Cross Respondent’s Brief of Argument filed on 15th November 2018.”
The Appellant/Cross Respondent formulated a sole issue for determination in the appeal; namely:
“Whether judgment ought to have been entered in favour of the Appellant by the trial Court in view of the evidence admitted in the course of the proceedings.”
The Respondents/Cross Appellants adopted the issue crafted for determination by the Appellant/Cross Respondent in the appeal and nominated the following issues for determination in the cross appeal:
“1. Whether Exhibit C and the evidence of CW2 ought to have been rejected. (Grounds 2 and 3)
2. Whether the Cross Appellant proved wrongful arrest, detention and disruption of business activities which includes seizure of the Cross Appellants’ equipment (Ground 1, 4 and 5).”
The Appellant/Cross Respondent in turn adopted the issues distilled by the Respondents/Cross Appellants for determination in the cross appeal.
I have perused the issues distilled by the parties relative to the grounds of appeal in the Notice of Appeal and Notice of Cross Appealrespectively. The said issues are germane and based on their respective complaints against the judgment of the lower Court. Accordingly, I would consider and resolve the appeal and cross appeal on the basis of the said issues seamlessly en bloc.
THE APPEAL
The Appellant/Cross Respondent submits that its witness, the DW1, gave evidence which supported the counterclaim and tendered Exhibit E which showed the outstanding sums owed to it. The evidence, it was stated, was cogent, sufficient and credible and was not challenged by the Respondents/Cross Appellants. The lower Court, it was contended, was therefore bound to enter judgment in its favour on the basis of the said statement of account, Exhibit E. The cases of EGBUNIKE vs. ACB LTD (1995) 2 NWLR (PT 375) 34 at 55 and AKINWUNMI vs. IDEWU (1969) 1 ALL NLR 319 at 321 were referred to.
It was posited that the lower Court was wrong when it held that its attention was not drawn to any entry in the statement of account, Exhibit E, indicating the debit balance outstanding as at May 2005. It was asserted that the said Exhibit E showed the debit balance of N33, 716,267.61 as at 12th May 2005 and that thelower Court was bound to consider and evaluate the evidence before it vide UKA vs. IROLO (1996) 4 NWLR (PT 441) 218 at 234-235 and BASSEY vs. ROBERTSON (1999) 2 NWLR (PT 589) 61 at 74. It was opined that the lower Court ought to have entered judgment for the Appellant/Cross Respondent even if the amount it found proved was slightly less than what was claimed. The cases ofOKOEBOR vs. ENGINEERING SERVICES (NIG) LTD (1991) 4 NWLR (PT 187) 553 and FBN PLC vs. ONIYANGI(2000) 6 NWLR (PT 661) 497 at 551 and 513 were relied upon. This Court was urged to consider and evaluate the said statement of account since the lower Court failed to do so. The case ofNWEKE vs. EJIMS (1999) 11 NWLR (PT 625) 39 at 53-54 was called in aid.
In replication, the Respondents/Cross Appellants submit that the Appellant’s/Cross Respondent’s argument is outside the complaints in the grounds of appeal and that the grounds of appeal did not impugn the findings of the lower Court on the counterclaim. Arguendo, it was contended that even if it did, the Appellant/Cross Respondent did not discharge the burden of proving that the Respondents/CrossAppellants were indebted to itfor the amount counterclaimed for. Section 133 of the Evidence Act 2011 and the cases of OLOWU vs. OLOWU (1985) 3 NWLR (PT 13) 372, FASHANU vs. ADEKOYA (1974) 6 SC 83 and OLANIYAN vs. OYEWOLE (2011) 14 NWLR (PT 1268) 445 were cited in support.
It was submitted that the method of proof of a customer’s indebtedness is by the entries in the banker’s book and that the evidence of the Appellant/Cross Respondent’s witness was at variance with the documentary evidence tendered on the amount counterclaimed. It was maintained that the Appellant/Cross Respondent did not adduce the best evidence to discharge the burden of proof on it. The cases of AKANMU vs. COOPERATIVE BANK PLC (2006) 2 NWLR (PT 963) 82, APATIRA vs. LAGOS ISLAND LOCAL GOVT (2006) 17 NWLR (PT 1006) 46, IKENYE vs. OFURE (1985) 1 SC [no page stated] and NEKA B. B. B. MANUFACTURING CO. LTD vs. ACB LTD (2004) ALL FWLR (PT 198) 1175 at 1191 were referred to.
It was further submitted that a party should be consistent in presenting his case through the hierarchy of the Courts and that the Appellant/Cross Respondent did not make out a case for a lesser sum having been proved at thelower Court and therefore could not be had to so contend on appeal vide JUMBO vs. BRYANKO INT’L LTD (1995) 6 NWLR (PT 403) 545 and ADEOGUN vs. FASHOGBON (2011) 8 NWLR (PT 1250) 427. Conclusively, it was contended that the Appellant/Cross Respondent had failed to show that the findings of the lower Court were wrong in law.
The Appellant/Cross Respondent in its Reply Brief maintains that its arguments came within the purview of the complaints in the grounds of appeal which flows from the decision of the lower Court. The case of ONIAH vs. ONYIA (1989) 1 NWLR (PT 99) 514 at 528 was relied upon. It was further submitted that Exhibit E substantially proves the counterclaim and that the evidential burden then shifted to the Respondents/Cross Appellants to show by way of documentary evidence how they had liquidated the indebtedness vide SALEH vs. BANK OF THE NORTH LTD (2006) 6 NWLR (PT 976) 316 at 327.
The Appellant/Cross Respondent opined, in conclusion, that it was not raising a fresh or different case and that this Court can properly evaluate the documentary evidence which the trial Court failed to do as it does not involve the credibility ofwitnesses. The cases of ARILEWOLA vs. GBOLADE (2012) LPELR-7882 (CA) and KWAJAFFA vs. BANK OF THE NORTH LTD (1988) LPELR-6371 (CA) were relied upon.
RESOLUTION OF THE APPEAL
It is a trite principle of law that an appellant cannot go outside the grounds of appeal in framing its issues for determination and arguments on the issues: NWANKWO vs. YAR’ADUA (2010) LPELR (2109) 1 at 51, SHITTU vs. FASHAWE (2005) 14 NWLR (PT 946) 671 at 687 andJEV vs. IYORTYOM (2014) 14 NWLR (PT 1428) 575 at 608. The grounds of appeal in turn must be rooted in and flow from the decision appealed against. See GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145, METAL CONSTRUCTION (WEST AFRICA) LTD vs. MIGLIORE (1990) 1 NWLR (PT 126) 299 at 311, 313-314 and UGWU vs. THE STATE (2013) LPELR (2017) 1 at 27.
The lower Court in dismissing the Appellant/Cross Respondent’s counterclaim, inter alia, held that the statement of accounts tendered in evidence did not show the outstanding balance claimed. Shorn of its particulars, the Appellant/Cross Respondent’s grounds of appeal read as follows:
“1. The learned trial judge erred in law when she held thatthe Appellant failed to prove the indebtedness of the Respondent in the sum claimed.
2. The learned trial judge erred in law when she rejected the evidence of DW1 with regard to the similarities of Exhibits E and B and refused to enter judgment on that basis.”
It is from these two grounds that the Appellant/Cross Respondent distilled the sole issue for determination which I have already reproduced. Without a doubt, the grounds of appeal are rooted in the judgment of the lower Court and the issue for determination takes its bearing from the said grounds of appeal. Accordingly, I am unable to accept the contention that the Appellant/Cross Respondent went outside the grounds of appeal in framing its issue for determination and arguing the same. The said issue and the arguments thereon are competent: LAU vs. PDP (2017) LPELR (42800) 1 at 12, C. S. S. BOOKSHOPS LTD vs. THE REGD TRUSTEES OF MUSLIM COMMUNITY RIVERS STATE (2006) LPELR (824) 1 at 29-30 and AKPAN vs. BOB (2010) LPELR (376) 35.
Let me also hasten to state that the contention of the Appellant/Cross Respondent for this Court to properly evaluate the documentary evidence and enterjudgment for a lesser sum, if the lesser sum is what the exhibits establish, is not making a case different from the case made out at the lower Court. The Appellant/Cross Respondent’s case is that the Respondents/Cross Appellants are indebted to it, whether a lesser sum is proved does not change the case of indebtedness which it consistently pursued at the lower Court and before this Court. SeeFATUNBI vs. OLANLOYE (2004) LPELR (1254) 1 at 28-29.
The gravamen of the Appellant/Cross Respondent’s complaint is that the lower Court did not properly evaluate the evidence before it and that if it had, it would have reached a different decision on the counterclaim. It is abecedarian that the evaluation of evidence and the ascription of probative value thereto is the primary duty of the Court of trial which has the unparalleled advantage of hearing the witnesses and observing their demeanour. Where the trial Court has properly evaluated the evidence and ascribed probative value thereto, an appellate Court will not interfere, except where the findings of facts made by the trial Court are perverse or a result of improper use of judicial discretion. SeeATANDA vs. AJANI (1989) LPELR (589) 1 at 64-65, BALOGUN vs. AGBOOLA (1974) LPELR (721) 1 at 9 andAGBABIAKAvs. SAIBU (1998) LPELR (222) 1 at 19-21.
In dealing with the Appellant/Cross Respondent’s counterclaim, the lower Court reasoned and held as follows at pages 322-324 of the Records:
“The defendants have counterclaimed for the sum of N33,716,267.61. They have the onus of proof. The appropriate method to prove indebtedness of its customers to it is through entries in its books-…
Exhibit E was admitted in Evidence at the instance of the Defendant/Counter Claimant. It is copy of the Statement of Account in respect of Claimant as kept by the Defendant/Counter claimant. The Claimant had earlier tendered Exhibit B as well. DW1 testifying compared both Exhibits B and E and came to the conclusion that they were the same.
The balance as shown on Exhibit E (which has 7 sheets) as at April 2005 is 0.00 contrary to the testimony of defence witness 1 (on the 2nd sheet) contrary to the testimony of DW1. Under cross examination DW1had stated that the debit balance on Exhibit E was N74,770,203.33k. However, as can be seen, that isa figure also found under the credit column. The column labeled Balance shows a zero entry, that is, it stands to reason so since the debit and credit columns cancel each other out.
I shall reproduce this testimony given under cross examination:
‘The remaining principal amount and the interest is what came to N33.7m. He made payments as seen in exhibit B. I see Exhibit E. Compared with Exhibit B, two accounts were merged together in Exhibit B.
There is a difference – Exhibit E is more comprehensive that Exhibit B. In Exhibit B the debit balance of Claimant is N28.7m in Account I and N24.765m in the 2nd Account. In Exhibit E the debit balance of Claimant is N74, 770m in Account I
As at May 2005 outstanding balance in Exhibit B —
But Exhibit E is only up till 2003 March.
Sorry I see another sheet on Exhibit B and it has the same balance (N74m) as Exhibit E. Having seen the other page, Exhibits E and B are the same.’
By this testimony, there is no positive evidence of the indebtedness of the sum of N33.7 m as claimed by the defendant’s counterclaim. That amount is fixed by the pleading and the oraltestimony of DW1. The documentary evidence, which is the acceptable manner of proof is at variance with the assertion. A party who asserts has the onus of proof…
There is no Statement of Account showing the claimed sum before the Court the indebtedness to the counter claimant bank is what is claimed as at 29 April 2005 of the sum of N33,716,257. 61 as claimed.
Exhibit E at page 2 shows a balance of 0.00 as 11th April 2005. That is the only entry for 2005. In Exhibit B, there is no entry for May 2005, the latest entry being in April 2004 showing a debit balance of N28,764,324.65 for Account 002220005272; while the latest entry on account 002220005005 was October 2004 showing debit balance of N25,637,097.39 Exhibit E tendered by Defendant/Counter Claimant has no entry for 29 April 2005 as stated earlier. The attention of the Court was not drawn to any entry showing the sum of N33, 716,267.61 either in Exhibit B or E during trial. Neither did Learned Counsel in his written or oral submission before the Court draw the Court’s attention to this entry.
During cross examination DW1 could not, as reported earlier, state the debit balance onexhibit B as at May 2005 and the debit balance on Exhibit E as stated by that witness was N74m was not proved – an amount at variance with what is claimed and pleaded has not been admitted to establish his pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted…
In the instant case, there is no distinct evidence before the Court of the indebtedness of the defendant to the Counter claim of the sum of N33,716,267.61. Exhibit E tendered shows a cumulative total of N74,770,203.33 debit, N74,770,203.33 credit, balance 0.00.
It is not for the Court to choose to look at another exhibit. Such a venture is speculative. And in particular in this case, where Exhibit B is shown to be combination of Accounts 1 and 2. it was for the Defendant Counter claimant to show and demonstrate to the Court the indebtedness in sum stated and claimed. A party is bound by his pleadings. The offers Exhibit A alone cannot be evidence of indebtedness same being only the genesis of the relationship. I have to hold that the Defendant/Counter claimant has failed to prove the indebtedness of the Claimant/Defendant to theCounter claim in the sum claimed in the counter claim.”
The nature of the duty of an appellate Court in reviewing the evaluation of evidence by the Court of trial is to find out whether there is evidence on which the trial Court acted as it did. Once there is such sufficient evidence on record from which the trial Court arrived at its findings of facts, an appellate Court cannot interfere: AKPAGBUE vs. OGU (1976) 6 SC 63, ODOFIN vs. AYOOLA (1984) 11 SC 72 and AMADI vs. NWOSU (1992) 5 NWLR (PT 241) 273 at 280. I have insightfully considered the testimonial and documentary evidence on record and I am not in any doubt whatsoever that the lower Court properly evaluated the evidence, ascribed probative value thereto and made findings of facts which flow from the evidence. In the circumstances, since the lower Court unquestionably evaluated the evidence and justifiably appraised the facts, this Court has no business to substitute its own views for the findings of the trial Court. See AKINLOYE vs. EYIYOLA (1968) NMLR 92 at 95, ENANG vs. ADU (1981) 11-12 SC 25 at 39 and WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320.
The matter does not end there. TheAppellant/Cross Respondent relied exclusively on the statement of account in proof of the indebtedness of the Respondents/Cross Appellants. As its sole witness, the DW1, failed to testify and speak to the specific entries in the statement of account. In fact, she testified that she is not the accounts officer in respect of the accounts. The law is now settled beyond peradventure that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the statement of account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account must adduce both testimonial and documentary evidence, explaining clearly the entries therein to show how the overall debit balance was arrived at. See Section 51 of the Evidence Act 2011 and the cases of OGBOJA vs. ACCESS BANK PLC (2015) LPELR (24821) 1 at 42-44, CO-OPERATIVE BANK LTD vs. OTAIGBE (1980) NCLR 215, YUSUF vs. ACB (1986) 1-2 SC 49, HABIB NIGERIA BANK LTD vs. GIFTS UNIQUE (NIG) LTD (2004) 15 NWLR (PT 896) 405 and WEMA BANK vs. OSILARU (2008) 10 NWLR (PT 1094) 150.
The Respondents/CrossAppellants disputed their indebtedness to the Appellant/Cross Respondent. Indeed, the tenor of their claim before the lower Court is that it is the Appellant/Cross Respondent that is indebted to the 1st Respondent/Cross Appellant. Therefore, the Appellant/Cross Respondent was under the bounden duty to prove that the Respondents/Cross Appellants are in fact indebted to it. This cannot be accomplished by mere production of the statement of account. It must go further to demonstrate by viva voce evidence, given by an official familiar with the accounts, how the debit balance was arrived at. See BIEZAN EXCLUSIVE GUEST HOUSE LTD vs. UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR (PT 1246) 246, BILANTE INT’L LTD vs. NDIC (2011) 15 NWLR (PT 1270) 407 andSAMABEY INT’L COMMUNICATIONS LTD vs. CELTEL NIGRIA LTD (2013) LPELR (20758) 1 at 28-29. The Appellant/Cross Respondent’s sole witness did not demonstrate to be familiar with the account and did not clearly explain the entries in the statement of account; as a matter of fact, the Records disclose that she was drafted in to replace the original witness that the Appellant/Cross Respondent hadintended to field. Accordingly, even the lesser sum which the Appellant/Cross Respondent has hankered after for judgment to be entered for it in respect of, cannot avail it since the quality of the oral evidence also did not explain and prove that.
From the foregoing it is ineluctable that the issue for determination in the appeal must be resolved against the Appellant/Cross Respondent. The decision of the lower Court not to enter judgment for the Appellant/Cross Respondent, on the state of the evidence adduced, is the correct decision. The appeal is devoid of merit and it is hereby dismissed. We segue to the cross appeal.
THE CROSS APPEAL
The Respondents/Cross Appellants argue that the lower Court was wrong to have rejected Exhibit C in evidence on the ground that it was made when proceedings were anticipated. It was stated that Section 91 (3) of the Evidence Act (now Section 83 (3) of the Evidence Act, 2011) is to be given a narrow interpretation to ensure its effectiveness and in order to permit the continuance of ordinary legitimate transactions untrammeled by the exclusionary rules of evidence. The case of ANYAEBOSI vs. R. T. BRISCOE NIG LTD (1987) 3 NWLR (PT 51) 84 at 98 was referred to. It was maintained that the mere fact that the CW2 was paid fees for the services rendered did not make him a person interested and the lower Court was wrong to disregard the evidence of CW2 on the ground that the evidence was based on Exhibit C and tainted by the same strains as Exhibit C.
The contention on the second issue distilled by the Respondents/Cross Appellants is that the lower Court failed to pronounce on the issue of seizure of equipment and that it was established by preponderance of evidence that the 2nd Respondent/Cross Appellant was arrested by armed policemen brought in by the Appellant/Cross Respondent and forced to issue post-dated cheques.
The Appellant/Cross Respondent submits that the lower Court rightly expunged Exhibit C from the evidence for having been made in anticipation of litigation as it was made five days before the Respondents/Cross Appellants filed the action at the lower Court and that CW2 was a person interested as his company was contracted by the Respondents/Cross Appellants for the mere purpose of producing Exhibit C for the benefit of the case. The cases ofHIGHGRADE MARITIME SERVICES LTD vs. FIRST BANK (1991) 1 NWLR (PT 167) 290 at 307-308, YA’U vs. DIKWA (2001) 8 NWLR (PT 714) 127 at 153, APENA vs. AIYETOBI (1989) 1 NWLR (PT 95) 85 and N.S.I.T.F.M.B. vs. KLIFCO NIG LTD (2010) 13 NWLR (PT 1211) 307 at 324 were relied upon.
It was asserted that a trial Court ought to expunge a document wrongly admitted in evidence in its judgment and that it was immaterial if the document had been admitted in evidence without objection vide OKAFOR vs. OKPALA (1995) 1 NWLR (PT 374) 749 at 758. It was further contended that the makers of Exhibit C were not experts and so the lower Court was right to discountenance the same. It was finally stated that Exhibit C was legally inadmissible and that it was wrongly admitted. The cases of UGWU vs. ARARUME (2007) 12 NWLR (PT 1048) 365 and UNITY LIFE & FIRE INSURANCE CO. LTD vs. I.B.W.A. LTD (2001) 7 NWLR (PT 713) 610 were called in aid.
On the second issue, the Appellant/Cross Respondent contends that the Respondents/Cross Appellants have not referred to the relief dealing with seizure of equipment and that the 1st declaratory relief which it is said to pertain to, hasnothing to do with seizure of equipment. It was opined that there was no evidence produced before the lower Court in proof of the arrest and detention of the 2nd Respondent/Cross Appellant and so the burden of proof in that regard was not discharged and the lower Court rightly held that the claim failed. The cases of EMESIANI vs. EMESIANI (2013) LPELR-21360 (CA) and KAYDEE VENTURES LTD vs. MINISTER, FCT (2010) 7 NWLR (PT 1192) 171 at 204 were cited in support.
RESOLUTION OF THE CROSS APPEAL
Exhibit C is the report of the firm, BEC Associates Credit Bureau Limited, engaged by the Respondents/Cross Appellants to reconcile the accounts of the 1st Respondent/Cross Appellant with the Appellant/Cross Respondent and to determine the actual indebtedness. Exhibit C was tendered through the CW2, a senior consultant in the said firm. It is on the basis of Exhibit C that the Respondents/Cross Appellants sought to establish that they were not indebted to the Appellant/Cross Respondent; but that it was the Appellant/Cross Respondent which was, in fact, indebted to the 1st Respondent/Cross Appellant. Even though Exhibit C had been admitted in evidence the lower Court in its judgment expunged the same.
By all odds, it is rudimentary law that a trial Court has the right to expunge from the record a document that was wrongly admitted in evidence. This can be done, suomotu, at the state of writing judgment, although a party may also call the attention of the Court to it in its final address: SHANU vs. AFRIBANK (2002) LPELR (3036) 1 at 26 and BROSSETTE MANUFACTURING (NIG) LTD vs. M/S OLA ILEMOBOLA LTD (2007) LPELR (809) 1 at 25-26. So the lower Court was within its legal bounds to expunge Exhibit C in its judgment. But was it right to have so expunged it? We will find out in a trice.
In expunging Exhibit C in its judgment the lower Court reasoned and held as follows at page 319 of the Records:
“In IZE-IYAMU v ALONGE (2007) 6 NWLR (PT. 1027) 84 – It was held that the Court is entitled to reject any document made in anticipation of litigation. Exhibit C is clearly shown to have been made a mere few days before this suit was filed. The maker was commissioned and paid by the Claimant. Therefore, the said Exhibit C is clearly inadmissible. The duty of the Court is to decide issues on admissible evidence.
Thus, where inadmissible evidence is admitted, the Court at the stage of judgment is entitled to expunge or disregard such inadmissible evidence – OLUKADE v ALADE (1976) 2 SC 183”
It is lucent that the lower Court expunged Exhibit C on the basis that it was made when proceedings were anticipated (“a mere few days before this suit was filed”) and that the maker was commissioned and paid by the Respondents/Cross Appellants. With due deference to the lower Court, this is a very narrow interpretation and application of the stipulation of Section 91 (3) of the Evidence Act, which was applicable at the date of the judgment, [now Section 83 (3) of the Evidence Act. The said stipulation seeks to render inadmissible in evidence any statement made by a person interested at a time when proceedings were pending or anticipated. It seems to me that the thrust of this provision is not merely whether proceedings were anticipated as construed by the lower Court. It has to be a statement made by a person interested at a time when proceedings were pending or anticipated. The stipulation reads:
“83 (3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
It seems to me that for a statement to be rendered inadmissible under the provision, it has to be shown that it was made by a person interested and that it was made when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. Doubtless, Exhibit C was made when proceedings were anticipated. It was also made to establish a fact in the dispute. But was it made by a person interested? Put differently, is CW2 or his firm a person interested as known to law? Does the fact that the firm was paid for the services rendered make it a person interested?
The apex Court has had occasion to explain what qualifies as personal interest in B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 67-68 (per Kekere-Ekun, JSC) as follows:
“Section 91 (3) of the Evidence Act 1990, which was the applicable law at the time the suit was heard, provides as follows:
‘Nothing in this Section shall render admissible as evidence any statements made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’
In Nigeria Social Insurance Trust v. Klifco (Nig.) Ltd. (2010) 13 NWLR (Pt. 1211) 307 this Court cited with approval the case of Evan v. Noble (1949) 1 KB 222 @ 225, where a person not interested in the outcome of an action was described as:
‘a person who has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest but completely detached, judicial, impartial, independent.’
His Lordship, Chukwuma-Eneh, JSC, after quoting the above portion of the judgment opined that:
‘…it contemplates that the person must be detached, independent and non-partisan and really not interested in which way in the context the case goes. Normally, a person who is performing an act in his official capacity cannot be a person interested under Section 91(3)’
As often reiterated by this Court, cases are decided on the basis of their own peculiar facts. When deciding whether a person is a ‘person interested’ within the contemplation of Section 91 (3) of the Evidence Act, the Court usually takes all the facts and surrounding circumstances into account. For instance, in NSIT v. Klifco (supra), the Court considered the fact that the Director who certified the Certificate of Indebtedness, Exhibit L, was only performing his statutory duty as provided by Section 38 of the National Provident Fund Act. In Apena v. Aiyetobi (1989) 4 NWLR (Pt. 95) 85, a Court of Appeal decision cited with approval in several cases by this Court, it was held per Apata, JCA, that there must be a real likelihood of bias before a person making a statement can be said to be a ‘person interested’.”
See also HIGHGRADE MARITIME SERVICES LTD vs. F.B.N. LTD (1991) LPELR (1364) 1 at 32-33, LADOJA vs. AJIMOBI (2016) LPELR (40658) 1 at 94-96 and N.S.I.T.F. vs. KLIFCO NIGERIA LTD (2010) LPELR (2006) 1 at 22-23. In the light of the legal position as eloquently stated by the apex Court, the CW2 and his firm cannot be a person interested in the action such that it can be said that they may be tempted to depart from the truth. They are evidently detached and independent. The fact that they had been paid for the service rendered strengthens rather than derogates from the fact that they cannot be classified or termed as a person interested. The lower Court was therefore wrong to have expunged the said Exhibit C in evidence. Exhibit C was not rendered inadmissible by the provisions of Section 91 (3) [Section 83 (3)] of the Evidence Act.
Be that as it may, is Exhibit C of a quality that establishes the basic proposition for which it was produced? Exhibit C is in the nature of expert evidence. For it to be accorded due weight, it ought to be shown to have been prepared by an expert in the field. The Respondents/Cross Appellants, even though they complained in ground 3 of the Notice of Cross Appeal that the lower Court was wrong in holding that the evidence of CW2 was not an expert evidence, they failed to proffer any submissions to show how the lower Court erred in holding that the CW2 was not an expert in the field of accounting. In declining to ascribe probative value to the evidence of CW2 as expert evidence, the lower Court reasoned and held as follows at page 319 of the Records:
“The witness was also unable to convince the Court of his expertise as an accountant, let alone a forensic one. His qualification as an electrical engineer has no bearing on banking and his employment in a firm that is not shown to be a member of any relevant professional body does not commend his evidence to the Court as reliable. An expert witness must demonstrate his skill and qualification to the Court to justify any reliance on his evidence as a correct estimate of the facts in issue…
I hold therefore that in the circumstances, CW2 is not such an independent witness nor expert before the Court. His evidence is accordingly rejected.”
The Respondents/Cross Appellants have not pointed out how this reasoning and finding of the lower Court is wrong, having failed to proffer submissions on the point. The Black’s Law Dictionary, Ninth Edition, page 660, defines an expert as “a person who, through education or experience, has developed skill or knowledge in a particular subject that he or she may form an opinion that will assist the fact-finder.” See OMISORE vs. AREGBESOLA (2015) LPELR (24803) 1 at 111.Pronouncing on the requirements of the law with regard to admissibility of expert opinion, Nweze, JSC asseverated thus in OKEREKE vs. UMAHI (2016) LPELR (40035) 1 at 33-34:
“For the avoidance of any doubt, although expertise, for evidential purposes, cannot be equiparated with scholastic knowledge or professorial attainment, R. v. Silverlock (1894) 2 Q. B. 766; A-G Federation v. Abubakar [2007] All FWLR (Pt. 375) 405, 555; Azu v. State [1993] 7 SCNJ (Pt. I) 151; Sowemimo v. State [2004] All FWLR (Pt 203) 951, an expert is, all the same, a person who is specially skilled in the field he is giving evidence, A-G, Federation v. Abubakar (supra).
For this purpose, formal learning on the subject is discounted once affirmative responses are returned to Lord Russell’s Trinitarian posers in R v. Silverlock (supra), namely, “Is he peritus? Is he skilled? Has he adequate knowledge? Oguonzee v. State (1998) 5 NWLR (Pt 551) 521; Sowemimo v. State (supra); I. H. Dennis, The Law of Evidence (Second Edition) (London: Maxwell, 2002) 702-710.
That notwithstanding, such a person, who is paraded as an expert, must furnish the Court with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable it (the Court) to form its own independent judgment by the application of those criteria to the facts proved in evidence, Phipson on Evidence (12th Edition), paragraph 1227, page 497; David v. Edinburg Magistrates (1953) SC 34, 40.
Put differently, the opinion and conclusions, which such an expert proffered before the trial Court, must be supported by scientific analysis otherwise his evidence would be valueless or worthless, SPDC Ltd v. Farah and Ors (1995) 3 NWLR (Pt 382) 148; SPDC v. Otoko (1990) 6 NWLR (Pt 159) 693; Ogiale V. SPDC (Nig) Ltd (1997) 3 NWLR (Pt 480) 165.
It cannot be otherwise for, as Lawton LJ, observed in R v. Turner (1975) Q. B. 834, 841: an observation which I adopt as part of my reasoning in this appeal:
‘An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or Jury. If on the proven facts, a Judge… can form [his] own conclusions without help, then the opinion of an expert is unnecessary’
See, also M. Redmayne, Expert Evidence and Criminal Justice (Oxford O. U. P., 2001) 140-149, in I. H. Dennis, The Law of Evidence (supra) 702.”
The finding of the lower Court is that the CW2 is not specially skilled in the field of accounting. The Respondents/Cross Appellants have not faulted this finding by any superior argument. I equally do not see how I can fault the same as the fact that CW2 prepared Exhibit C, does not, based on the evidence he adduced as to his qualification and the non-registration of his firm with any of the accounting bodies, make him an expert: MATRACO INVESTMENT NIG LTD vs. STERLING BANK (2013) LPELR (21865) 1 at 30-34. The lower Court was therefore correct when it did not ascribe probative value to Exhibit C; since whether CW2 was an expert was its decision to make and it rightly held that CW2 was not an expert. See A-G FEDERATION vs. ABUBAKAR (2007) 10 NWLR (PT 1041) 1.
Even though the wrong reason was given by the lower Court for not utilizing Exhibit C; the reason being that it was expunged for offending Section 91 (3) [Section 83 (3)] of the Evidence Act, the decision not to use Exhibit C and ascribe value to it as establishing the Respondents/Cross Appellants claim is the correct decision. An appellate Court is concerned with whether the correct decision was arrived at and not whether the reason given is correct. See NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 220, DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161 and POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36. It is therefore cold comfort for the Respondents/Cross Appellants and a pyrrhic and hollow victory to state that the lower Court was wrong to have expunged Exhibit C from the records, but that the decision not to accredit CW2 as an expert, and eo ipso Exhibit C as being the report of an expert, is the correct decision.
In holding that the Respondents/Cross Appellants did not prove the arrest and detention of the 1st Respondent/Cross Appellant the lower Court held thus:
“It is argued that for the defendant that apart from the mere assertion of being arrested, the Claimant had not provided sufficient evidence to prove this allegation. The Claimant however is of the view that the minimum evidence will suffice since there was no evidence to counter same.
It is trite that the one who asserts has the burden of proof –
There is in fact denial of this allegation by the DW1 in her paragraphs 12, 13 of Evidence in chief as deposed to – which Deposition was ostensibly front loaded in compliance with the Rules of Court. Therefore, the claimant had notice and were aware that the said piece of evidence is a direct counter of theirs on the issue. It therefore becomes incumbent on the Claimant to bring further evidence to prove the bare assertion. The standard of proof in civil cases is on a balance of probabilities (or preponderance of evidence. Thus, where bare assertion meets with bare assertion, the fact in issue will be resolved in favour of the party who is able to draw the Court’s attention to some other piece of evidence which further authenticates its position. It is in that line that the points raised by defence counsel become relevant – bail bonds, cheques stubs, the name of IPO or officer of defendant bank who was at the station and whether or not statement was taken. In the absence of [sic] as to pre-ponderate any of the defendant’s assertion, I come to the conclusion that the Claimant did not discharge the burden it has to prove the allegation of arrest and harassment. I resolve this issue in favour of the defendant.”
(See pages 317-318 of the Records)
Dealing with whether the Respondents/Cross Appellants proved the disruption of their business activities for which they claimed special and general damages, the lower Court held at page 321 of the Records:
“It has also been held that the alleged arrest of the 2nd Claimant has not been proved. A claim on damages can only be made where the fact relied upon has been proved. It is compensation for the act of the other party complained of so where the act, breach is not proved, damages will not be payable…
The claim for arrest and detention is therefore refused there being no basis for same.
The claim for interference with the Claimant’s business will come under the specie of special damages which must be particularized and strictly proved. Thus specifics which are easily cognizable must not only be given, but established by credible evidence not conjecture…
Neither in the Statement of Claim nor by the evidence before the Court is there any fact showing how the sum claimed herein was arrived at no attempt whatsoever was made towards proof in this regard. The claim must fail.”
Let me iterate that the evaluation of evidence and ascription of probative value thereto are the primary functions of the Court of trial which saw, heard and assessed the witnesses. It is not the business of the appellate Court to substitute its views for those of the Court of trial where it has unquestionably evaluated the evidence and justifiably appraised the facts: AROWOLO vs. IFABIYI (2002) 4 NWLR (PT 757) 356 at 372. The lower Court eminently discharged its primary function so there is no rational basis on which its findings on the arrest, detention and wrongful disruption of the business activities of the Respondents/Cross Appellants can be interfered with.
As I begin to put a wrap on this judgment, let me state that I do not see the basis for the Respondents/Cross Appellants complaint that the lower Court failed to pronounce on the seizure of equipment to which the 1st declaratory relief they sought relates. I have already set out the reliefs claimed by the Respondents/Cross Appellants. There is no relief claimed in respect of seizure of equipment. The 1st declaratory relief claimed is that the Appellant/Cross Respondent is indebted to it in the sum of N8.1million. I cannot fathom how it relates to seizure of equipment. In the circumstances, since the seizure of equipment does not relate to any of the reliefs claimed, even if it would have been desirable for the lower Court to pronounce on it, it is not fatal that it did not pronounce on it since it would have been merely academic as it was not the subject of any relief claimed. The Courts do not engage in academic pursuits: PLATEAU STATE vs. A-G FEDERATION (2006) 1 SC (PT 1) 1, AGBAKOBA vs. INEC (2008) LPELR (232) 1 at 63 and DAHIRU vs. APC (2016) LPELR (42089) 1 at 25-26. The syzygial summation of the foregoing is that the cross appeal is devoid of merit and it is dismissed.
I have considered the appeal and the cross appeal and found them to be devoid of merit. Indubitably, they both failed and have been dismissed. The decision of the lower Court, Coram: Onyeabo, J., delivered on 10th November 2008 is affirmed. The parties are to bear their respective costs of the appeal.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA afforded me the draft of the leading judgment which he has just delivered, and in which he found both the appeal and the cross appeal as lacking in merit and he dismissed both of them.
I have nothing useful to add and I agree with his resolution of the issues set down by both parties for the determination of the appeal and the cross appeal.
Appeal is dismissed by me too, and I abide with the orders made that both parties shall bear their respective costs.
EBIOWEI TOBI, J.C.A.: I have had the opportunity of reading in draft the leading judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA and I am in agreement with his reasoning and the conclusion reached on both the appeal and the cross appeal respectively. The law as stated by my learned brother is trite to the effect that the appellate Court will seldom disturb the findings of the lower Court who had the opportunity and duty of examining/evaluating the evidence and observing the demeanor of the witnesses; except where the findings made are perverse and has led to a miscarriage of justice. In Samson Awoyale vs. Joshua O. Ogunbiyi (1986) LPELR 662 (SC) the Apex Court had this to say;
“The basic settled principle for the determination of appeal on issues of facts by an Appellate Courts is that where the trial Court unquestionably has evaluated the evidence and appraised the facts, it is no longer the business of the Court of Appeal to embark on a fresh appraisal of such evidence and not to disturb findings of fact by the trial Court. See Akinloye and Anor v. Eyiyola and ors (1968) NMLR 92 at p. 95; Obisanya v. Nwoko (1974) 6 SC 69 at p. 80; Victor Woluchem and Ors v. Chief Gudi and Ors (1981) 5 SC 291 at p. 326-330. The principle was also reiterated by Eso. JSC in Chief Frank Ebba v. Chief Warri Ogodo and Anor (1984) 4 SC 8 when alter referring to many other authorities on the point he observed thus: “It is the duty of the trial Court to assess witnesses, impressions about them and evaluate their evidence in the light of the impression which the Court forms of them… it is the trial Court… that has the duty to see and indeed in this case, has seen the witnesses and also heard their evidence. The Court of Appeal should not disturb a finding of factunless that Court is satisfied that such finding is unsound; it is in the process of deciding whether the finding is sound or not that the Court of Appeal (because it does not see the witnesses) is left only to examine the grounds that led to the conclusions reached by and the inferences that have been drawn from such conclusions of the trial Court.” Earlier On, in Lion Buildings Ltd. v. M.M. Shadipe (1976) 12 SC 135, Sir Udo Udoma, JSC when considering what should be the attitude of the Court of Appeal in an appeal on the ground that judgment is against the weight of evidence had said at p. 152 as follows: “We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle on which a Court of Appeal should act when a judgment is appealed against as being against the weight of evidence. It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest no Court Should depart. The principle was enunciated in Macaulay v. Tukuru (1881-1911) I NLR 35, in these words: “Whena judgment is appealed from as being against the weight evidence, the Appeal Court must make up its own mind on the evidence not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong.”
See Godspower Asakitikpi vs. The State (1993) LPELR-572 (SC); Congress for Progressive Change vs. INEC (2011) LPELR-8257 (SC) and Professor B. J. Olufeagba & Ors vs. Professor Shuaib Oba Abdur-Raheem &Ors (2009) LPELR 2613 (SC).
I have examined the evidence at the lower Court and the reasons given by the learned trial judge in arriving at the decision of the lower Court, I do not see any reason whatsoever to disturb the findings of the lower Court. For this reason and for the fuller reasons given by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA, I, too, find this appeal and the cross appeal to be without merit and same is hereby dismissed.
Appearances:
Godwin Nwekeoyo, Esq. For Appellant(s)
O. Falaiye, Esq., (with Miss Sophia Oboh) For Respondent(s)