UNITED BANK FOR AFRICA PLC v. MAGE LIMITED & ANOR (2017)

UNITED BANK FOR AFRICA PLC v. MAGE LIMITED & ANOR

(2017)LCN/9490(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of February, 2017

CA/MKD/187/2013

RATIO

EVIDENCE: EFFECT OF PARTIES DEPARTING FROM THEIR PLEADINGS
It is trite law that parties are bound by their pleadings. Thus, evidence adduced before a Court which is at variance with the averments in the pleadings, goes to no issue and should be discountenanced. It is not open to a party to depart from his pleadings and to put up an entirely new case at the hearing. Matters not pleaded are not in issue. Consequently, any evidence regarding them must not be admitted, and if admitted, they should be ignored or discountenanced. Conversely too, facts pleaded but not supported by evidence, go to no issue and must similarly be discountenanced. See Oshiomole V Airhiavbere (2013) LPELR-SC.473/2012 p. 1. per Rhodes-Vivour, JSC; Adekoya V Adesina (2010) 12 SC (11) 1. In the case of Mohammed V Klargester (2002) LPELR-SC.114/1995, 17 paras G-A; (2002) 14 NWLR (Pt.787) 335, the Supreme Court, per Ogwuegbu, JSC held as follows: “The learned trial Judge should have dismissed the claim of the plaintiff on the ground that his evidence was at variance with the averments in the statement of claim. See Oredoyin & Ors V Arowolo (1989) 4 NWLR (Pt.114) 172, Akpapuna V Obi Nzeako II (1983) 2 SCNLR 1; (1983) SC 25. The Court below was also in error when it affirmed the decision of the trial Court.” Oputa, JSC had also, in an earlier case, added his voice to the expression of the law on the subject in Shaibu V Bakare (1984) LPELR-SC.115/1983, p.41 paras B-G as follows:
“Also the trial Court has a duty to reject evidence which is contrary to the pleadings… This duty exists even where and if counsel did not object to the admissibility of such evidence. But if such inadmissible evidence, through an oversight, or for any other reason, was admitted, it was still the duty of the trial Court when it came to consider its judgment to treat that inadmissible evidence (here evidence of facts not pleaded and therefore not in issue) as if it had never been admitted… No party should be allowed to make a case at the trial either at variance with or different from his pleadings:- Metalimpex V AG Leventis & Co (Nig) Ltd (1976) 2 SC 91 at 102. PER JUMMAI HANNATU SANKEY. J.C.A.

EVIDENCE: OUTCOME OF DOCUMENTARY SUPPORT TO ORAL EVIDENCE
The law is that when documentary evidence supports oral evidence, oral evidence becomes more credible. The reasoning being that documentary evidence serves as a hangar from which to assess oral testimony. See Odutola V Mabogunje (2013) LPELR-SC.47/2007, p.29, paras C-D per Rhodes-Vivour, JSC. PER JUMMAI HANNATU SANKEY. J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC – Appellant(s)

AND

1. MAGE LTD

2. ALHAJI ABDULLAHI MUSA AGAI

(Suing as the Administrator of the Estate of Senator Musa Agwai (Deceased) – Respondent(s)

JUMMAI HANNATU SANKEY. J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Justice Benue State in suit no. MHC/225/2010 delivered on 27th February, 2013 by Onum, J., wherein the learned trial Judge awarded Judgment in favour of the Respondents, (as plaintiffs) in their claim for certain declarations, orders and damages (as specified in their Statement of claim) against the Appellant (as Defendant).

Briefly, the facts of the case before the trial Court were as follows: The action was initiated by the Respondents at the Lower Court, against the Appellant, a Public Liability Company engaged in banking services in Nigeria, vide a Writ of summons issued on 13-07-10. By a statement of claim dated on the same date, they claimed as follows (in Paragraph 12 thereof):

(a) A declaration that at all times material to this suit, the 1st plaintiff was and remains a customer of the defendant bank.

(b) A declaration that a bank has a duty to issue periodic statements of account to its customer and as such its conduct in withholding periodic statements of account from the plaintiff

since after the last one issued on 30/04/2002, constitutes a fundamental breach in the banker-customer contractual obligation.

(c) An order directing the defendant to pay the plaintiffs, forthwith, the sum of forty-two million, two hundred and ninety six thousand, six hundred and forty one naira ninety four kobo (42,296,641.94) being the balance outstanding to the credit of the 1st Plaintiff in a current account maintained with the defendant bank as its customer at its Makurdi Branch, as at 31/03/2002 and which sum the defendant has continually with held from the plaintiff in spite of repeated demand.

(d) An order directing the plaintiff to pay a pre-judgment interest to the plaintiff at a flat rate of 10 (sic) per annum beginning from the 30/03/2002 to the date this action if (sic) filed in Court.

(e) A further sum of Five Million Naira (N5,000,000.00) as damages should be paid to the plaintiff by the defendant on account of it having committed a fundamental breach of banker/customer contractual relationship between it and the plaintiff.

The 1st Respondent is a limited liability company while the 2nd Respondent is the son and Administrator of

the estate of late Senator Musa Mouhammed Agwai who died intestate and who was the primary account holder/beneficiary with the Appellant. The 1st Respondent maintained an account with the Appellant. She obtained a loan facility from the Appellant which the late Senator Musa Agwai, the Chief promoter and alter ego of 1st Respondent, guaranteed. In that regard, he deposited four certificates of occupancy numbers 001422; 001465; 001466 and PL 2709 with the Appellant as security. Upon the death of Senator Agwdi, the 2nd Respondent applied for and was granted Letters of Administration to administer the estate of his deceased father.

Late Senator Musa Agwai built Agwai Hotels Ltd on the land covered by certificate of occupancy number 001422, which he used as security for the loan facility obtained from the Appellant. As a further security for the loan, a floating charge was executed between the Appellant and the 1st Respondent. The 1st Respondent was not able to discharge its financial obligations to the Appellant in respect of the loan facility and thus became indebted to it. The Appellant therefore took out a suit against it before the Benue State High Court, vide

suit no. MHC/165/98. She subsequently obtained Judgment against 1st Respondent in the sum of N16,163,036.75, plus interest. All efforts made by the 1st Respondent to renege from meeting its obligations in respect of the Judgment debt failed, especially her attempt to set aside the decision of that High Court. Subsequently, on 27th October, 2004, the Appellant enforced the Judgment against the assets of the 1st Respondent, but was only able to realize the sum of N5,500,000.00 out of N16,163,036.75, toward the liquidation of the Judgment debt. Subsequently, there is no evidence that any further action was taken by the Appellant to realize the balance on the Judgment debt nor is there evidence that the Respondents deposited any payments into the account of the 1st Respondent.

Then, in 2002, the 2nd Respondent, as the administrator of the Estate of his late father, received two statements of account which indicated that the 1st Respondent had to its credit in its account the sum of N42, 296,641.94. However, shortly after that, he received a third statement of account from the Appellant which indicated that the sum in the account had dropped to just over

N1,000,000.00. Alarmed, the 2nd Respondent approached the Appellant for an explanation since, as the Administrator of the Estate of the late sole signatory of the account, he had had not conducted any transactions on the account that could have warranted such a debit. Indeed, since his father had died in 1983, the signatory to the account had not been changed. When the Appellant was not forthcoming with an explanation, he instructed his solicitors to write requesting both an explanation and a full statement of the account. Still the Respondent met a brick-wall as the Appellant did not respond to the written inquiries. It was at that stage that the 2nd Respondent approached the Lower Court for redress and filed the claim which has now led to this Appeal.

The Appellant denied the claim and the case went into full trial. The Respondents tendered five exhibits marked Exhibits A-E and called one witness, being the 2nd Respondent himself. The Appellant tendered three documents marked Exhibits G-G2, and adduced evidence through two witnesses, DW1 and DW2, its Branch managers. At the close of trial and adoption of written addresses, Judgment was entered in favour

of the Respondents. They were awarded the full sum claimed to the tune of N42,296,641.94, plus interest thereon at the prevailing bank rate from 30th April, 2002 until Judgment, and thereafter at 10% per annum until the Judgment debt is fully liquidated. Aggrieved by this decision, the Appellant filed an Appeal on 04-03-13 wherein she complained on two grounds.

At the hearing of the Appeal on 17-11-17, O. D. Obande Esq. adopted the Appellant’s Brief of argument filed on 12-07-13 in urging the Court to allow the Appeal and set aside the Judgment of the trial Court. He submits that the Respondent’s Notice had earlier on been withdrawn. In like vein, A.A. Chukwuma Esq., adopted the Respondent’s Joint Brief of argument filed on 18-09-13 (but deemed filed on 27-05-13) in urging the Court to dismiss the Appeal and affirm the Judgment of the trial Court. The Respondent also compiled and transmitted an additional Record of Appeal which was deemed transmitted on 05-12-14. The Appellant’s Brief of argument was settled by Ocha P. Ulegede Esq., while the Respondent’s Joint Brief of argument was settled by Amaechi A. Chukwuma Esq.

In their respective

Briefs of argument, both learned Counsel distilled one sole issue each for determination from the two grounds of Appeal. The Appellant’s issue for determination states:

Whether the learned trial Judge did not misdirect himself when he held that the Defendant failed to give any evidence to contradict the case of the Plaintiff as to the sudden fall in the credit level from N42 million to N1 million. (Grounds 1 and 2).

While the Respondent’s issue for determination is framed thus:

Whether the decision of the learned trial Judge that the Appellant failed to plead and lead evidence to justify the drop in the value of the credit standing in favour of the respondents from N42,296,641.94 to N1,274,453.17 is reasonable in the light of the pleadings of parties and evidence adduced in support (ground 1 and 2).

Since the issues are similar in content, I adopt the issue formulated by the Appellant in the determination of the Appeal.

In arguing the Appeal, learned Counsel for the Appellant submits that the 1st Respondent’s account with the Appellant on which the loan facility was granted to the 1st Respondent, is Account No. 601000091. He submits

that the foundation of the Respondents’ case is Exhibits D, D1 and E tendered by the 2nd Respondent, who was the sole witness for the Respondents. Exhibit D is a statement of account dated 28th March, 2002 which shows a debit balance of N42,296,641.94 carried forward in March, 2002; Exhibit D1 dated 2nd April, 2002, is a statement of account for April, 2002 with credit balance of N1,274,453.17; and Exhibit E is a detailed statement of account of the 1st Respondent beginning from 26th February, 1999 on the Interest Bad Debt Business Account (Int. BDD Bus) No. 621000096, which the Appellant opened on the transaction account No.601000091 which the 1st Respondent maintained with the Appellant, and on which the loan facility was obtained.

It is submitted that PW1 contradicted himself in his two depositions on oath before the Lower Court dated 13-07-10 and that dated 24-02-12 respectively, when he said that: the 1st Respondent opened and maintained a current account No.621000096 with the Appellant at its Makurdi Branch office; whereas in oral evidence, he testified that the 1st Respondent operated more than one account. On the other hand, the Appellant adduced

evidence through the DW2 who chronicled how the account came into existence. His evidence is corroborated by Exhibits D, D1 and E tendered by the Respondents. Counsel therefore urged the Court to act on the evidence of DW2 in line with the law as settled in Cameroon Airlines v Otutuize (2011) ALL FWLR (Pt.570) 1260 at 1286, paras A-B; Ebeinwe V State (2011) All FWLR (Pt.655) 413 at 424; para D; Adekola V Ailara (2011) All FWLR (Pt.572) 1696 at 1730, paras C-F.

Counsel further submits that the trial Court, having found that the parties led evidence in line with their respective pleadings, it could not also find that the evidence adduced by the Appellant supported the case of the Respondents to warrant the Judgment given in their favour. Instead against the contention of the Respondents that 1st Respondent opened and maintained a current account No.621000096 with the Appellant, DW2 testified that 1st Respondent opened and maintained account No.601000091 with the Appellant on which the loan facility was granted to it, and not account No. 621000096. Thereafter, the 1st Respondent could not meet up with the payment. He explained that Account No. 621000096 is an

Interest Bad Debt Business Account which is an internal suspense account created by the Appellant into which all interest and principal debts of the 1st Respondent were ware-housed. Exhibit E therefore contained the detailed entries in this internal suspense Interest Bad Debt Business Account No. 621000096, which were made from 26th February, 1999 to 4th April, 2002, including the debit entry for 3rd March, 2002, in the sum of N42,296,641.94. Exhibits D and D1 were issued based on the detailed entries contained in Exhibit E. It is submitted that there has never been any activity carried out in the 1st Respondent’s Account No. 601000091 with the Appellant.

Counsel submits that, following the admission by the 2nd Respondent that the account of 1st Respondent with the Appellant had not been operated since he took over the affairs of the 1st Respondent, including making any deposits into the account, it is not reasonable to say that the debit entry in the sum of N42,296,641.94 made on 3rd March, 2002 in Exhibit E and contained in Exhibit D is money in the credit account of the 1st Respondent and therefore payable to the 1st Respondent. Instead, that the entry

represented by the sum of N42,296,641.94 made in Exhibit E and contained in Exhibit D is a debt entry, and a not credit entry which could have entitled the 1st Respondent to lay claim to payment by the Appellant.

It is further Counsel’s contention that from the evidence of the parties, particularly the unchallenged and un-contradicted testimony of DW2, it is a misdirection on the part of the learned trial Judge to hold that the Plaintiffs pleaded and led evidence that they did not authorize the debit that resulted in the sudden drop in their credit. It was also argued that it was equally wrong for the learned trial Judge to have used the failure of the Appellant to respond to the letters, Exhibits C and C1, allegedly written to the Appellant, as the basis for entering judgment for the Respondent because (i) there was no evidence that the letters were ever delivered to the Appellant at any point in time; (ii) Account No. 621000096 is not the account which the 1st Respondent opened and maintained with the Appellant; and (iii) the Appellant does not owe the 1st Respondent any obligation to respond to Exhibits C and C1. Thus, her failure to do so cannot be a

ground for entering judgment in favour of the respondents.

In respect of the holding of the Lower Court (at page 222 of the Record) that since a bank is in exclusive control of all entries in its books of records, including debits and credits posted on the accounts of customers, a customer is entitled to regard a statement of account duly issued by a bank as prima facie evidence of his or her financial standing with the bank, it is contended that the Appellant justified the drop in the Plaintiffs’ account through the testimony of DW2. It is however argued that the burden to prove the claim lay with the Respondents and not on the Appellant.

It is submitted that PW1 under cross-examination (at page 186 of the Record) stated that the affairs of the company had been at a standstill since the death of 2nd Respondent’s father and the Bank had continued to inform the Respondents that the 1st Respondent was indebted to her, that was why their property was auctioned after they lost the case which the 2nd Respondent’s brother instituted against the Appellant (page 186 of the Record). 2nd Respondent also confirmed that since the demise of his father on 20th

October, 1983, he never operated any of the two accounts since he took over the running of the 1st Respondent Company.

Counsel submits that it is the law that he who asserts, has the burden to prove. Where there is failure to prove that which is alleged, failure results therefrom. He relies on Mikano International Ltd. v Ehumadu (2013) All FWLR (Pt.667) 658 at 697, para D; Asadu v Ifeanyi (2010) All FWLR (Pt.517) 736 at 753, para B; Adeemo v Adeyemo (2011) All FWLR (Pt.584) 121 at 137; paras B-D; Omoworare V Omisore (2011) All FWLR (Pt.582) 1670 at 1731, paras D-E. He contends that the Respondents failed to discharge the burden placed on them and must fail. He therefore urged the Court to allow the Appeal, set aside the Judgment of the trial Court and dismiss the case of the Respondents.

In his response, learned Counsel for the Respondent submits that from the contents of Exhibits D and D1, the case of the Respondents centered around and involved account No. 621000096, and not account No. 601000091 or any other account. The fact that the said account No. 621000096 was opened and operated by the 1st Respondent was admitted on oath by the Appellant (page

63 Paragraph 3(a) and page 66 Paragraph (3q) of the Record). The Respondents pleaded Exhibits D and D1 as the periodic account statements issued to them by the Appellant in respect of account No.621000096. They frontloaded and subsequently tendered same in evidence.

The Appellant did not plead that account No.621000096 was not the same account which the 1st Respondent opened and maintained with her to enable the Respondents join issues with her on same. The issue of accounts Nos. 601000091 and 601001671 was only brought up by the Appellant outside its pleadings and through the testimony of DW2. All the facts averred under Paragraph 3(a)-(p) in the evidence-in-chief of DW2 are facts within the exclusive knowledge of the Appellant, which the Respondents could only have responded to when facts relating to them are pleaded. He submits that the trial Court could not have considered and relied on the evidence of DW2 when there were no material facts in the pleadings to support them. Thus, the trial Court correctly considered and relied only on evidence properly before it. The case of the Respondents at the trial Court was clear, concise and centered on account

No. 621000096.

Counsel submits that the law is long settled that he who asserts must prove. The burden of proof in civil cases such as this, lies on the party against whom the Judgment of the Court would be given if no evidence were produced. If evidence which ought reasonably to satisfy the Court that the facts sought to be proved is established, the burden lies on the party against whom Judgment would be given if no more evidence was adduced. Reliance is placed on Sections 131-133 of the Evidence Act 2011.

He therefore submits that the Respondents placed sufficient material evidence before the trial Court which reasonably supported their claims against the Appellant.

In this regard, the Respondents pleaded that the 1st Respondent opened, operated and maintained a current account number 621000096 with the Appellant. The Appellant admitted this averment under Paragraph 4(a) of her statement of defence, and also on oath in Paragraphs 3 (a) and (q) of the affidavit in support of her preliminary objection to the Respondents’ suit. By virtue of Section 123 of the Evidence Act (supra), facts admitted need no further proof.

The 2nd Respondent was the

Administrator of the Estate of late Senator Musa Mohammed Agwai, and the Appellant, in recognition of this position, issued periodic statements of account on account number 621000096 to the 2nd Respondent. In particular, on 31-03-02, the account had a credit balance of N42,296,641.94k as reflected in Exhibit D. There was a drop in value of this account on the 30-04-02 and in proof thereof, the Respondents tendered Exhibit D1. Upon noticing the drop, the Respondents wrote several letters (Exhibits C and C1 inclusive) to the Appellant and paid visits to her office seeking an explanation. Even though the Appellant’s Counsel has argued that the letters were not received by the Appellant, this was not a fact in issue before the trial Court and no finding was made on same. Thus, this line of argument is misconceived, more so that the letters were admitted without objection and there is evidence of acknowledgement of receipt on the face of the Exhibits by the Appellant. Counsel submits that submissions in the Brief of argument cannot take the place of evidence and relies on Ikem V Vidan Packaging Ltd (2011) All FWLR (Pt.601) 1476 at 1587; & Ezuma V Nkwo Market

Community Bank Ltd (2000) FWLR (Pt.28) 2243.

In respect of the submission of the Appellant’s Counsel that the Appellant does not owe the Respondents any explanation on account No. 621000096 as demanded in Exhibits C and C1, as the account was an internal account of the Appellant which was not meant for the 1st Respondent, Counsel submits that this is a further admission that the Appellant received the said letters but refused to react to same. He contends that the evidence of the lone witness of the Respondent PW1, (as deposed to in Exhibit A), and the documentary evidence tendered by the Respondents were not challenged or discredited by the Defendant under cross-examination.

In respect of the contention that PW1 contradicted himself as to the number of accounts maintained by the 1st Respondent in the Appellant Bank, Counsel submits that there is no contradiction in the evidence of the PW1 because even the Appellant’s witnesses did not know and could not tell the trial Court how many accounts the 1st Respondent opened and/or operated with the Bank.

Further, Counsel submits that from the Appellant’s statement of defence (at pages 37-38 of the Record), the Appellant did not plead any

facts relating to and/or justifying the drop in the reported credit in the 1st Respondent’s account No.621000096. Thus, there were no material facts upon which the evidence of DW2 as contained under Paragraphs 3(a)-(p) of the Exhibit H could stand.

It is also submitted that even though the Appellant pleaded loan facilities, she failed to give material particulars of the alleged facilities. The account of the 1st Respondent through which the said loan was granted was not stated; the amount of the facilities was not stated; what was repaid even upon enforcement of the Judgment of Court in Exhibit G and how it was treated in the 1st Respondent’s account were also not pleaded; nothing was stated about accounts Nos. 601000091 and 60100001671, the facts of Contra Account, memorandum Account, Interest Bad Debt Business accounts and the like in the Appellant’s pleadings. In addition, the averments in the statement on oath of DW2 were not pleaded. These were material facts within the exclusive knowledge of the Appellant which the law requires her to plead so as to give the Respondents sufficient notice of the case they were going to meet at the trial. Reliance is

placed on Order 15 Rule 7(1) of the Benue State High Court (Civil Procedure) Rules 2007 to submit that parties, as well as the Court, are bound by the pleadings before the Court; and any evidence which is at variance with what is pleaded, goes to no issue. He relies on Momoh V Umoru (2011) All FWR (Pt.588) 797; Buhari V INEC (2009) All FWLR (Pt.459); INEC V ADC (2009) All FWLR (Pt.490) 668. It is contended that the evidence led by the Appellant through the DW2, particularly Paragraphs 3(a)-(p) thereof of his statement on oath, are at variance with the pleadings of the Appellant; and the trial Court was right not to have considered and relied on same in making its findings. Dansol Org. Ltd V NTC Ltd (2001) FWLR (Pt.59) 1267 at 1280, paras E-G is relied on.

Counsel further contends that all the evidence adduced by the Appellant in the form of oral evidence from its two witnesses and the three documents tendered, to wit: Exhibits G-G2 (the Ruling/Judgment of the High Court in suit No.MHC/165/98; and the Judgment in suit no. FHC/MKD/CS/53/2002), were of no assistance to her case. This is so because the issue of estoppel raised therein had been dealt with in

the preliminary objection to the hearing of the suit and overruled in limine. DW1’s evidence was also along the line of the plea of estoppel, which was overruled. Under cross-examination however, she told the Court that she did not know how many accounts the 1st Respondent maintained with the Appellant. As for the DW2, whose evidence is alleged to be unchallenged, Counsel submits that the Appellant filed and adopted his statement on oath long after the Respondents had closed their case, and without leave to call an additional witness. It is submitted that any evidence led outside what is pleaded goes to no issue; even it is uncontroverted or unchallenged. He relies on Nsirim V Nsirim (2002) FWLR (Pt. 96) 433; Nwarata V Egboka (2006) All FWLR (Pt.338) 768; NIDB V Olalomi Ind. Ltd. (2002) 5 NWLR (Pt.761) 532; Mbari V Bosi (2006) All FWLR (Pt.323) 1516; Adebayo V Shogo (2005) All FWLR (Pt.253) 739; Momoh V Umoru (2011) All FWLR (Pt. 588) 797; Agboola V UBA Plc (2011) All FWLR (Pt.574) 74; Buhari V Obasanjo 2005 All FWLR (Pt.273) 1; & Ogbogu V Ogwuegbu (2003) FWLR (Pt.1612) 1825.

The DW2’s evidence was intended to ambush the Respondents and therefore, the

learned trial Judge was right not to have considered the evidence led on unpleaded facts. He refers to Order 15 Rule 7(1) of the Benue State High Court (Civil Procedure) Rules 2007 which provides:

?All grounds of defence or reply which make an action not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the pleadings shall be specifically pleaded.” (Emphasis mine)

Thus, it is submitted that the findings of the trial Court and its decision that the Appellant failed to plead and lead evidence to justify the drop in the Respondents’ credit in account No. 621000096, is amply supported by sufficient and credible evidence and should not be disturbed by this Court. He relies on Bamgboye V Olanrewaju (1991) 3 LRCN 897 at 915; George v UBA Plc (1972) 1 All NLR (Pt.2) 347; George v. Dominion Flour Mills (1963) 1 All NLR 71; Obueke V Nnamchi (2012) All FWLR (Pt.633) 1840 at 1856; & Osuji V Ekeocha (2009) All FWLR (Pt.490) 614. This Court is therefore urged to answer this issue in the affirmative. Finally, Counsel urged the Court to dismiss the Appeal for lacking merit with costs.

Resolution of the lone issue:

The gravamen of the submissions of the Appellants Counsel is that the learned trial Judge was in error when he held that the Defendant failed to adduce any evidence to contradict the case of the Plaintiffs as to the sudden drop in the credit balance of the 1st Plaintiff’s account no. 621000096 from N42,296,641.94 to N1,274,453.17k. Counsel relies on the evidence adduced through the DW2 and Exhibits D, D1 and E tendered by the Respondents, to contend that ample evidence was adduced before the Lower Court to explain that in actual fact, account no. 621000096 which the Respondent had founded their claim upon, was not opened, operated and maintained by the Respondents. Instead, the 1st Respondent’s account was account no. 601000091 which was opened and operated by its alter ego, late Senator Musa Mohammed Agwai (the 2nd Respondent’s father), and it was on this account that the Appellant granted the 1st Respondent a loan facility. The 1st Respondent did not offset the loan which led to Court proceedings before another High Court between the parties wherein Judgment was entered in favour of the Appellant. The Judgment was

executed, but out of the Judgment debt of N16,163,036.57k, only N5,5000.00 was realized when late Senator Agwai’s property was sold in execution of the Judgment. There was therefore an outstanding sum standing as debit to the 1st Respondent’s account.

It is based on this outstanding debit in the account that, in line with the policy and internal workings of the Bank, an account was subsequently opened by the Appellant which it referred to as the “Interest Bad Debt Business account (Int. BDD Bus)” No.621000096. Into this account was posted the bad debt of the 1st Respondent as well as the interest accrued on it over the years. It has therefore been argued by the Appellant that what was actually posted into that account, from which statements of account (Exhibits D and D1) were sent to the 2nd Respondent as the Administrator of late Senator Agwai’s Estate, as well as Exhibit E produced in Court by her, reflected only debit entries to the tune of N42,296,641.94, and not credit entries.

The explanation offered for the drop in the entries from N42,296,641.94 (Exhibit D and E) to N1,274,453.17k (Exhibits D1 and E) was the decision of the Appellant to move the

debit entries made up of the accumulated interest and Principal to yet another account referred to as a memorandum account no. 601001671 domiciled at its Head office in order to nil the balance for that month. Thus, the subsequent amount that was reflected in account no. 621000096 in the following month to the tune of N1,274,453.17k was the accumulated interest on the debt for another period, and it was in this respect that a statement of account was again sent to the 2nd Respondent as in the Exhibit D1. All these pieces of evidence were brought to the notice of the Lower Court through the evidence of DW2 the Manager of the Appellant Bank. The complaint of the Appellant therefore is that, on the basis of this evidence, the finding of the Lower Court was un-warranted and wrong.

On the part of the Respondents, learned Counsel’s response is briefly put that much as these were the explanations and defence offered by the Appellant through the DW2 in answer to their claim, it was not the Appellant’s case on pleadings. Therefore, the evidence goes to no issue and the learned trial Court was right to disregard it.

I have carefully scrutinized the

pleadings of the parties and the evidence adduced, in particular the evidence of the DW2 in the Record vis–vis the sole issue called for the determination of this Court. The pleadings of the Defendant (now Appellant) chronicle the relationship between the 1st Respondent, the 2nd Respondent?s father ? Senator Musa Mohammed Agwai (deceased) and the Appellant Bank. While agreeing that the 1st Respondent maintained a current account with the Bank and was at a point in time, given a facility which it defaulted in paying, to details are given in the statement of defence as to the 1st Respondent’s Current Account number, the amount loaned to it and the outstanding amount owed by the 1st Respondent after the sale of the 2nd Respondent’s house in execution of the Judgment of the High Court of Nasarawa State given in the Appellant’s favour, (Exhibits G, G1 and G2). In further response to the Plaintiff’s claim, the Defendant contended that the issues before the Lower Court had previously been adjudicated upon by two previous Courts in Paragraphs 4 (h)-(o) of her statement of defence. For ease of reference, the relevant paragraphs are set out

hereunder:

“4. The Defendant avers in response to paragraphs 6 to 12 of the claim as follows:

(h) Defendant sued 1st and 2nd plaintiffs and others vide suit No: MHC/165/98 before the Benue State High Court and obtained Judgment for N16,163,036.57k plus interest.

Defendant pleads the writ of summons dated 13/11/98.

(i) The plaintiffs participated in the aforesaid proceedings and indeed, were represented by counsel.

(j) After judgment was entered for the defendant herein as plaintiff in suit No: MHC/165/98, the plaintiffs herein took steps to have the said judgment set aside by motion.

(k) The motion seeking an order of Court setting aside judgment of Court delivered in suit No. MHC/165/98 was refused on 10-12-2001. A copy of the ruling of Court refusing to set aside the judgment is (sic) No.MHC/165/98 delivered on 10/12/2001 is hereby pleaded.

(l) The defendant have since enforced the judgment in suit No.MHC/165/98 through the sale of Agwai Hotels Ltd pursuant to order of Federal High Court Makurdi in suit No.FHC/MKD/CS/53/2002. The judgment aforesaid is pleaded.

(m) The subject matter and parties in suit

No.MHC/165/98 are the same.

(n) The defendant is in no way indebted to the plaintiffs as claimed by virtue of customer/banker relationship or at all.

(o) NOTICE IS HEREBY given that at the hearing of this suit, the defendant is going to raise a preliminary objection as to the competence/propriety of the plaintiffs maintaining this suit against the defendants.” (Emphasis supplied)

In the written deposition of the Appellant’s initial sole witness, Erdoo Laura Andohol, (the Branch Operations Manager), which was adopted as her statement under oath (Exhibit F), these averments in the statement of defence were re-hashed. The Appellant further tendered Exhibits G and G1 (Records of proceedings) in proof of his defence of estoppel. However, even before trial, in fulfillment of paragraph 4 (o) above, the Appellant filed a motion on notice on 07-04-11 seeking an order striking out or dismissing the suit. The grounds for the reliefs sought were articulated as follows (at pages 61-62 of the Record):

a. The Court lacks jurisdiction to hear and determine the suit.

b. The substantive suit as constituted amounts to an abuse of Court process.

c. There is an (sic) subsisting judgment of the Benue State High Court in suit No. MHC/165/98 between the plaintiffs herein and the defendant premised on the same subject matter of the substantive suit.

d. There is yet another subsisting judgment of the. Nasarawa State High Court sitting in Lafia in suit No. NDS/LF97/04A between the plaintiff and the defendants on the same subject matter of the substantive suit.” (Emphasis supplied)

The application was supported by a three paragraph affidavit wherein it was deposed as follows:

3. That I have the permission of my employer and the consent of the defendant/applicant herein to depose to the affidavit.

4. That on 1/4/2011 the said Mr. R.D. Danjuma came to our office situate on 4 Gboko Road, Makurdi at about 2pm and informed me and I verily believe same to be true as follows:

a. That the 1st plaintiff had opened, operated and maintained current account no. 62100096 at all material times with the defendant.

q. That the plaintiff’s dispute with the defendant as constituted in those proceedings revolves around the plaintiffs operations and the loan obligation with the defendant on account No.

621000096.

s. That the judgment of the Benue State High (sic) in suit No. MHC/165/98 has since been enforced by the sale of plaintiffs property as constituted in Agwai Hotels Limited and the proceeds applied to nil the debit balance of N42,296,641.94k flaunted by the plaintiffs herein in their pleadings.”

The Respondents joined issues with the Appellant by filing a counter-affidavit (pages 132-140 of the Record). After hearing the application, the Lower Court dismissed same on 12-10-11 for lacking in merit (pages 175-178 of the Record). To date, there is no Appeal against this Ruling.

Since by this Ruling, the Appellant’s only defence on its pleadings had been effectively short-circuited prematurely even before hearing in the suit commenced, (albeit on the Appellant’s own motion), it is quite surprising that the Appellant did not deem it expedient to either amend her statement of defence to accommodate the new line of defence which it subsequently introduced through the DW2 or to throw in the towel because, as things stood, there was nothing else to prove from the averments in her pleadings.

As rightly pointed out by learned Counsel for the

Respondents, and as is evident from the Record of the Lower Court, the statement on oath of the DW2 which introduced a new line of defence was filed after the Respondents had closed their case on 12-12-12, and long after the Ruling on the motion canvassing estoppel had been delivered on 12-10-11. The effect of the Ruling of 12-10-11 was that the Appellant had no defence to the claim. This is because, in both the statement of defence and the statement on oath of the PW1, the sole defence of the Appellant to the action was that the issue before the trial Court had already been determined in two previous decisions of the Benue State High Court and the Nasarawa State High Court respectively. The Lower Court however found differently and held that the issues before those two High Courts were not the same as the issues then before it, thereby dismissing the application to strike out or dismiss the suit.

Thus, it is only in the evidence of DW2, (both his statement on oath-Exhibit H and his evidence under cross-examination at pages 193-194 of the Record), that the Appellant adduced evidence in respect of the two accounts purportedly opened by the Appellant Bank

itself to ware-house the 1st Respondent’s bad debts.

This is therefore the backdrop against which the Lower Court arrived at its finding which the Appellant now complains of (at page 222 of the Record). For clarity of argument, it is set out hereunder:

“It is a matter of common knowledge that a bank is in the exclusive control of all entries in its book of records, including debits and credits that are posted on the accounts of its customers. A customer of a bank is therefore entitled to regard a statement of account duly issued by a bank as prima facie evidence of his or her financial standing with the bank. The onus therefore lies on the defendant bank in the instant case to justify the drop in the plaintiff’s account with the bank. The bank could do this in either of several ways. It could plead and lead evidence to show that the credit entry was and (sic) administrative error on its part and subsequently had to be reversed using the same administrative process. It could also plead and lead evidence to prove that the sudden drop in the credit level was in execution of an order of a Court of competent jurisdiction or that it was done with the

knowledge and the approval of the plaintiffs. The defendant has not pleaded and led evidence in either direction. Rather the plaintiffs have pleaded and led evidence that they did not authorize the debit for the sudden drop in their credit and have demanded for explanations from the defendant vide exhibits C and C1.? (Emphasis supplied)

I have already set out the crux of the Appellant’s pleadings in her statement of defence earlier on in the body of this Judgment. Based on an assessment of the pleadings vis-a-vis this finding of fact in the Judgment of the Lower Court, the learned trial Judge cannot be faulted.

It is trite law that parties are bound by their pleadings. Thus, evidence adduced before a Court which is at variance with the averments in the pleadings, goes to no issue and should be discountenanced. It is not open to a party to depart from his pleadings and to put up an entirely new case at the hearing. Matters not pleaded are not in issue. Consequently, any evidence regarding them must not be admitted, and if admitted, they should be ignored or discountenanced. Conversely too, facts pleaded but not supported by evidence, go to

no issue and must similarly be discountenanced. See Oshiomole V Airhiavbere (2013) LPELR-SC.473/2012 p. 1. per Rhodes-Vivour, JSC; Adekoya V Adesina (2010) 12 SC (11) 1.

In the case of Mohammed V Klargester (2002) LPELR-SC.114/1995, 17 paras G-A; (2002) 14 NWLR (Pt.787) 335, the Supreme Court, per Ogwuegbu, JSC held as follows:

“The learned trial Judge should have dismissed the claim of the plaintiff on the ground that his evidence was at variance with the averments in the statement of claim. See Oredoyin & Ors V Arowolo (1989) 4 NWLR (Pt.114) 172, Akpapuna V Obi Nzeako II (1983) 2 SCNLR 1; (1983) SC 25. The Court below was also in error when it affirmed the decision of the trial Court.”

Oputa, JSC had also, in an earlier case, added his voice to the expression of the law on the subject in Shaibu V Bakare (1984) LPELR-SC.115/1983, p.41 paras B-G as follows:

“Also the trial Court has a duty to reject evidence which is contrary to the pleadings… This duty exists even where and if counsel did not object to the admissibility of such evidence. But if such inadmissible evidence, through an oversight, or for any other reason, was admitted, it

was still the duty of the trial Court when it came to consider its judgment to treat that inadmissible evidence (here evidence of facts not pleaded and therefore not in issue) as if it had never been admitted… No party should be allowed to make a case at the trial either at variance with or different from his pleadings:- Metalimpex V AG Leventis & Co (Nig) Ltd (1976) 2 SC 91 at 102.?

Thus, the learned trial Judge acted rightly when it ignored the evidence adduced through the DW2, which was totally at variance with the Appellant’s pleadings. This was clearly the foundation of the Lower Court’s holding (now complained of) that the Appellant neither pleaded nor led evidence to prove its assertion that the drop in the credit status in the 1st Respondent’s account was due to an internal arrangement whereby the bad debt of the 1st Respondent customer was ware-housed and credited to account No. 621000096 created by the Bank and referred to as “Int. BDD Bus” translated by the DW2 to mean “Internal Bad Debt Business”. In the absence of any pleadings to give birth to this evidence, it goes to no issue, and there is nothing on the side of the defence to

contradict or challenge the case of the Plaintiffs, as presented in their pleadings and buttressed by evidence.

Since the evidence adduced through the DW2 was obviously ignored and/or discountenanced by the trial Court in arriving at its decision, and the issue of estoppels by reason of previous judgments raised in the pleadings also dismissed in the Ruling delivered by the Lower Court 12-10-11, there was in effect no defence to the claim. Thus, it was proved on a minimum of evidence. The evidence of PW1 coupled with the Exhibits D, D1 and E, documents from the Appellant itself which spoke eloquently for themselves, sufficed to establish the claim of the Respondents to the standard required by law in civil cases, which is on a balance of probability. The law is that when documentary evidence supports oral evidence, oral evidence becomes more credible. The reasoning being that documentary evidence serves as a hangar from which to assess oral testimony. See Odutola V Mabogunje (2013) LPELR-SC.47/2007, p.29, paras C-D per Rhodes-Vivour, JSC. Therefore as Plaintiffs, the Respondents established the averments in their pleadings, and the onus of proof shifted

to the Appellant, who was unable to discharge it. It is therefore for these reasons that I resolve the sole issue for determination in favour of the Respondents.

In the result, I find the Appeal lacking in merit. It fails and is accordingly dismissed.

Consequently, the Judgment of the High Court of Justice, Benue State in suit no. MHC/225/2010, between Mage Ltd & 1 Or V United Bank for Africa Plc, delivered on 27-02-13 by Onum, J., is affirmed.

I award costs assessed at N100,000.00 to the Respondents, against the Appellant.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance the Judgment just delivered by my learned Brother, Jummai Hannatu Sankey, JCA, in which this appeal was dismissed. The sole issue raised in this appeal has been characteristically comprehensively resolved. I am in agreement with the resolution of the issue. I also dismiss this appeal and abide by the orders made in the lead Judgment, including the order as to costs.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the judgment which has just been delivered by my

learned brother, Sankey, JCA. I agree with the reasoning and conclusion therein, and I also dismiss the appeal for being devoid of merit.

Appearances

O.D. Obande, Esq.For Appellant

AND

A. A. Chukwuma, Esq,For Respondent