UNITED BANK FOR AFRICA PLC v.MRS. MARY ALEX OSOK
(2016)LCN/8169(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of February, 2016
CA/C/116/2014
RATIO
EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTARY EVIDENCE IS THE BEST EVIDENCE
It is now firmly settled that documentary evidence is the best evidence. It is the best proof of the contents of such document and no oral evidence will be allowed to discredit the contents thereof except where fraud is pleaded. See Skye Bank Plc. v. Chief Moses Bolanle Akinpelu (2009) LPELR – 1049 (Sc); A/G Bendel State & 2 ors v. U.B.A Ltd (1986) 4 NWLR (pt. 337) 547 at 563, B. Stanbilini & Co. Ltd v. Nnabueze Obasi (1997) 9 NWLR (pt. 520) 293 at 334. per. PAUL OBI ELECHI J.C.A.
COURT: DUTY OF THE TRIAL COURT; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE
It is an elementary principle that the function of the evaluation of evidence is essentially that of the trial Judge. See Onuoha v. State (1998) 5 NWLR (pt. 548) 118, So where the trial Judge has unquestionably evaluated evidence and justifiably appraised the facts, it is therefore not the business of the Appellate Court to interfere and to substitute its own views for the view of the trial Court. See Woluchem v. Gudi (1981) 5 SC 291; Enang v. Adu (1981) 11-12 SC 25; Igago v. State (1999) 14 NWLR (pt, 637)1. per. PAUL OBI ELECHI J.C.A.
EVIDENCE; BURDEN AND STANDARD OF PROOF; STANDARD OF PROOF IN CRIMINAL AND CIVIL PROCEEDINGS
The Law is well settled that if the commission of crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. See Section 138 of the Evidence Act. In other words, although the prepondence of probability may constitute Ground for a verdict in civil proceedings, this general rule is subject to the statutory proposition in Section 128(1) of the Evidence Act. In this case the alleged fraud being directly in issue must be proved beyond reasonable doubt whether in a civil or criminal case. See in Re Otuedon (1995) 4 NWLR (pt. 392) 655. per. PAUL OBI ELECHI J.C.A.
JUSTICES
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
UNITED BANK FOR AFRICA PLC – Appellant(s)
AND
MRS. MARY ALEX OSOK – Respondent(s)
PAUL OBI ELECHI J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Cross River State, Holden at Ikom and delivered by His Lordship Hon. Justice B. T. Ebuta on the 17th day of January, 2014.
STATEMENT OF FACTS
2.1 “The story of the Respondent is that she opened a current account with the Defendant on the 10th day of July, 2007 into which a cheque valued N4,005,000.00 was lodge on her behalf by one Mr. Ateke. The money was the value of land leased to MTN NIG. Communications Ltd for the purpose building a mast.
2.2 She claimed that her Account Officer detached 8 Leave of the cheque book issued to her by the Defendant and that she was told that the Leaves were detached during the proceeding of her account and that there was no course for alarm. She, however, listed nine detached cheque Leaves in paragraph 6 of the Amended Statement of Claim including cheque leaf No. 82514006.
2.3 The Respondent who claimed to be an illiterate averred that after the issuance of the cheque book she never withdraw or used her account except to pay in money on four occasions. These lodgments
according to her brought the total sum in her account to N9,010,000.00.
2.4 She specifically pleaded that on 21/1/08, the Appellant withdrew the sum of N1m from her account vide cheque leaf No. 825114006. This was in spite of the fact that she had custody of the said cheque leaf. See paragraph 6a of the amended Statement of claim.
2.5 She alleged that she went to withdraw money for the first time in December, 2008, that is more than one and half years after opening the account, and she was told by a new account officer that she had no money in her account. That the shocking news, caused her to fall sick and only recovered two months after. She was thereafter advised by her brother-in-law to apply for her Statement of account and brief a Lawyer. This was about 16 months after she had allegedly been told that she had no money in her account even though her account was opened in Ikom branch in Cross River State.
2.6 Under cross Examination the Respondent admitted signing all the instruments used for withdrawing money from her account except cheque leaf No. 82514007 for N2m. She made several other admissions and statements under cross Examination
making her claim more like “a tale bold by an idiot signifying nothing” (Apologies to Shakespeare) this resulted in the trial Judge making a finding of fact in the Judgment that she was a liar whose conduct is reprehensible.
2.7 The Appellant filed a defence and called two witnesses denying all the allegations of the claimant and stating without equivocation that the claimant operated her account and withdrew the money she lodged therein.
2.8 On 17/1/14, the Learned trial Judge entered Judgment for the Claimant and ordered the Appellant to refund N9,010,00.00 which she allegedly paid into her account with N100,000.00 cost of action. It is against the said Judgment that the Appellant has appealed to this honourable Court.”
ISSUE FOR DETERMINATION
The issues distilled for determination by the Appellant are as follows:
I. “Whether the trial Judge properly evaluated and assessed the evidence adduced by both parties? And if the answer is in the negative, whether the Judgment is not against the weight of evidence which occasion a miscarriage of Justice? (Grounds 1,2 3 and 8)
2. Whether
the Learned trial Judge was right in holding that the Respondent proved the allegation of fraud beyond all reasonable doubt? (Ground 5, 6, 7 and 11).
3. Whether the Learned trial Judge was right in holding that the Appellant was negligent in handling the account of the Respondent which led to Claimants money being fraudulently withdrawn without her consent? (Ground 12).
4. Whether the findings of facts of the learned trial Judge are not perverse? And if the answer is in that affirmative, whether the perversity did not occasion a miscarriage of justice? (Grounds 4, 9, 10 and 13).
5. Whether the Learned trial Judge was right in discountenancing and failing to give weight to Exhibits Dl and D3? And whether the failure to consider the said Exhibits did not occasion a miscarriage of justice (Ground 14).”
In arguing issue No. 1 above, learned Appellant’s counsel stated that the crux of the matter is whether the Respondent withdrew the money she deposited in her account with the Appellant bank. The Respondent’s case is that she did not withdraw money from her account while the Appellant still states unequivocally that the Respondent withdrew all
her money.
The Respondent testified in her behalf and tendered her Statement of Account Exhibit 1 which she procured from the Owerri branch of the Appellant bank which and according to counsel is hardly legible. she also tendered cheque leaf number 82514006 as Exhibit 2. Also tendered by her is Exhibit 3 which is the complementary card of Respondent A. Jumbo. Exhibit 5 is the statement on oath of the Respondent.
The Appellant called two witness and tendered-8 cheque leave i.e Exhibits D – cheque book maintenance, Exhibit D1, counter cheque leaves – Exhibit D2, Claimant Statement of Account,?opening of account package with file – Exhibit D4, signature card of the Claimant- Exhibit 5, statement on oath of DW1 – Exhibit D6 and statement on oath DW2 – Exhibit D7.
?With all the above documentary evidence, the trial Judge according to the Appellant counsel ignored more than 80% of the documentary evidence tendered by the Appellant. All the trial Judge did was to concentrate his effort in studying Exhibit 1, the statement of account of the Respondent and came to the conclusion that the cheques were out of sequence. According to Learned Counsel, the
trial Judge realized that the date on one of the eight cheque leaves tendered as Exhibit D by the Defendant was a Sunday which is not a working day.
The Appellant tendered Exhibit D & D2 eight cheque leaves and three counter cheques to show that the Respondent indeed withdrew money from her account of those instruments Exhibit D4, the Account officer opening package was tendered to show among other things who the Account Officer of the Respondent was as well as the signature of the Respondent and the information supplied by her. Exhibit D5, the signature card was tendered to show the specimen signature of the Respondents for purpose of comparison with the signature of the claimant for purposes with signature on the cheques used to withdraw money from Respondents account. Exhibits D6 & D7 are the statements on Oath of the Appellant witnesses. The Court he contended therefore completely refused to give value to them. See Aiki v. Idowu (2006) 9 NWLR (pt. 984) 47 at 65, Mohammed v. Abdulkadir (2008) 4 NWLR (pt. 1076) l1l at 156-157.
?The Lower Court failed to evaluate the essential evidence adduced in the matter. The question is whether or not the
Respondent withdraw the money she deposited in her account with the Appellant in her Ikom branch or the money was fraudulently withdrawn on account of the criminal negligence of the Appellant?
The trial Judge failed to evaluate the evidence of one Mr. Ateke who featured prominently with regards to the withdrawal of money by the Respondent from her account. Another piece of evidence which the trial Judge failed to evaluate and assess the allegation of detachment cheque leaves by the Appellant which is the foundation of the alleged fraud. That the Respondent admitted under cross examination that she signed all the cheques leaves tendered by the Defendant as Exhibit D except cheque leaf No. 82514007 for N2m. This according to learned Counsel is a fundamental negation and twist in the Respondents story. See paragraph 6 of the Respondents statement on oath. From the above, paragraph 6 shows that on the day she was given her cheque book, the cheques enumerated there in were already detached and she had no opportunity of seeing them at all and therefore could not have signed them. The Respondent denied signing and collecting the sum of N2m on cheque No.
82514007 (Exhibit D). Nonetheless, the trial Court did not make any evaluation on this important piece of evidence. The Learned trial Judge therefore failed to apply the principles of evaluation as enunciated in the case of Anekwe & Anor v. Nweke 2014 LPELR O 22697 (SC). The failure of the trial Court to evaluate or properly evaluate the evidence can be seen on the effect it has on the case. See Faghenro v. Arobadi (2006) 7 NWLR (pt,978) 172.
On the basis of the above, Learned Appellant’s Counsel then urged the Court to resolve Issue No. 1 in their favour.
ISSUE NO. 2
“Whether the Learned trial Judge was right in holding that the Respondent proved the allegation of fraud beyond reasonable doubt” (Grounds 5, 6, 7 & 11).
In dealing with this issue, Learned Appellant adopted his argument and submission in respect of Issue No. 1 in support of this issue No. 2 The Respondent’s allegation of fraud is Criminal in nature. By Section 135, of the Evidence Act 2011, where an allegation of crime is made in a civil matter, it must be proved beyond reasonable doubt. Also where such allegation has to
do with fraud, it must be pleaded with particularity. The particulars of the fraud in this appeal are stated in Paragraph 20 of the Amended Statement of Claim.
The Appellants on their own part denied that cheque leaves were removed before her. Cheque book was given to her.
The Appellant denied under cross examination her signature in Exhibit D which by implication is that her signature was forged and forgery being a criminal offence by virtue of Section 456 of the Criminal Code, the Respondent ought to adduce evidence even from a handwriting expert to prove the allegation of forgery of her signature beyond reasonable doubt as required by Law.
Learned Appellant’s Counsel then submitted that the facts relied by the trial Judge to hold that fraud has been proved beyond reasonable doubt do not prove the allegation that the Appellant withdrew the money of the Respondent. The Claimant did not prove the above allegation on the balance of probabilities much less beyond reasonable doubt. The evidence adduced by the Defendant and especially the documentary evidence created reasonable doubt in the Criminal allegations of the Claimant.
He then urged the Court
to resolve this issue in their favour.
ISSUE No. 3
“Whether the Learned trial Judge was right in holding that the Appellant was negligent in handling the account of the Claimant which led to Respondents money being fraudulently withdrawn without her consent (Ground 12).”
Learned Appellant’s Counsel stated that in negligence cases, the plaintiff must plead all the particulars of negligence alleged and the duty of care owed. See U. T. B. v. Ozoemena (2007) 3 NWLR (pt. 1022) 448. In the present?case, the Respondent in her statement of claim failed to plead particulars of negligence. The Respondent did not call evidence of negligence and the Appellant did not admit that she was negligent. The Respondent did not call evidence of the duty of are owed her by the Appellant which was breached. See Aghi v. Ejinkeonye & Bros. Ltd (1992) 3 NWLR (pt. 228) 200; Atoyebi v. Odudu (1990) 6 NWLR (pt. 157) 384; Sadiz v. Bundi (1991) 8 NWLR (pt. 210) 443. Therefore the Learned trial Judge made perverse findings not supported by evidence.
He then prayed the Court resolve this issue in their favour.
ISSUE NO. 4
“Whether the findings of facts of the Learned trial Judge are not perverse and if the answer is in the affirmative, whether the perversity did not occasion a miscarriage of justice?”
Under this issue, Learned Counsel submitted that the trial Judge in coming to the conclusion found that fraud was proved beyond reasonable doubt and took into account matters which ought not to have been taken into account. See Yaro v. Arewa Construction Ltd (2007) 16 NWLR (pt. 1063) 333.
Learned Counsel stated that another area of the Courts perversity had to do with the reason for refusing to place weight on Exhibit D1 & D3 tendered by the Appellant. It was also grossly perverse for the trial Judge to shut his eyes on the entire defence of the Defendants.
And so as in this case, where facts are found to be perverse, they would be inevitably occasion a miscarriage of justice. See Overseas construction Ltd v. creek Enterprises Ltd (1995) 3 NWLR (pt. 13) 477 at 414.
He then urged the Court to resolve this issue in their favour.
ISSUE NO. 5
“Whether the Learned trial Judge was right in discrediting Exhibits Dl & D3 and consequently failing to attach weight to them and whether such failure did not occasion a miscarriage of justice?”
According to Counsel, the Learned trial Judge discredited Exhibits Dl & DW3 without cogent reasons. This decision of the trial Judge occasioned a miscarriage of justice as to whether Exhibit 2- cheque leaf No. 82514006 was used or not.
He then urged the Court to resolve this issue in their favour and to allow the Appeal and set aside the Judgment of the Lower Court.
From the 14 Grounds of Appeal filed by the Appellant, the Respondent adopts their 4 issues for determination but with some variations and the Respondent also hereby merge Appellant issue No. 5 with his Issue No. 1, since both issues bother on evaluation of evidence respectively.
Therefore, out of the 14 Grounds of Appeal filed by the Appellant the Respondent formulates only four issues for determination as follows:
(1) “Whether the trial Judge failed to evaluate and assess the evidence and Exhibits adduced by both parties at the trial Court (from Grounds l,
2, 3, 8 & 14).
(2) Whether the Respondent at the trial Court failed to prove the allegation of fraud beyond reasonable doubt (from Grounds 5, 6, 7 & 11).
(3) Whether the Respondent from the evidence adduced by the Respondent was negligent in handling the account of the Respondent in its bank (Ground 12).
(4) Whether the findings of facts of learned trial Judge was perverse, looking at the totality of the evidence before him (from Grounds 4, 9, 10 & 13).”
In arguing issue No. 1 above, Learned Counsel submitted that for a trial Court to arrive at its Judgment, it must evaluate and ascribe probative value to evidence adduced before it. See Nagogo v. C.P.C. (2013) 2 NWLR (pt. 1339) 443. Learned Counsel then submitted that the Learned trial Judge considered and evaluated all the evidence before coming to a conclusion. That in law some documents may be admissible but that does not mean that it has weight. See Haruna v. AG. Federation (2012) 1 NWLR (pt. 1306) 419. Exhibits D, D1, D2, D3, D4 and D5 were properly evaluated by the trial Judge.
?The Respondents in proof of their case at the trial Court called only one witness which is
herself and tendered the following documents.
1. Exhibit I – Statement of account.
2. Exhibit 2 – Cheque leaf No. 82514006
3. Exhibit 3 – Clement Jumbo’s complimentary card
4. Exhibit 4 – Witness deposition of PW1
5. Exhibit 5 – Additional deposition of PW1
While the Appellants in going to prove its case called two witnesses and the following documents hereunder:
(1) Exhibits D – Cheque leaves
(2) Exhibit Dl – Cheque book maintenance.
(3) Exhibit D2- Counter cheque leaves
(4) Exhibit D3- Claimant’s statement of account
(5) Exhibit D4- Opening of Account package
(6) Exhibit D5- Claimant’s signature card
(7) Exhibit D6- Statement on Oath of DW1
(8) Exhibit D7- Statement on Oath of DW2.
The total number of Exhibits tendered by the Appellant at the trial Court were 8 in number which comprises of Exhibits D, DI, D2, D3, D4, D5, D6 and D7 respectively.
Only Exhibits D6 & D7 formed part of the Appellant’s pleadings at the trial Court.
?These Exhibits have to be evaluated by the trial Court in order to ascribe probative value to the evidence adduced before it. This the trial
Court did at pages 193-196 of the Record of Appeal, as it constitutes its primary function as a trial Court. see Nagogo v. C.P.C?(2013) 2 NWLR (pt. 1339) 448.
The Respondent stated that the Appellant’s contention that the Learned trial Judge ignored over 80% of the documentary evidence tendered by the Defendant by commenting on three out of the 14 Exhibits tendered by the Defendants is wrong and misleading. The Learned trial Judge according to Counsel properly evaluated and carefully examined all the material evidence adduced. The Lower Court examined Exhibits 4 & 5, 6 & 7 and in particular Exhibit 1, but the lower Court declared Exhibits Dl & D3 as doctored statement of account produced by the Appellant but lack in credibility required for the Court to attach any weight to it. Exhibit D was well considered at page 194 and D1?was evaluated at page 195, and D2 at pages 194 paragraph 4 of the Records.
Learned Respondent’s Counsel therefore submitted that the trial Court evaluated all the Exhibits on their merit before-ascribing probative value to them.
?The Appellant’s contention is that the Respondent withdrew all her money in their
bank whether or not the Respondent beside using her cheque leaves in withdrawing money from her account also used counter cheque leaves whenever she forgot her cheque book to the bank; the Appellant has failed to furnish the trial Court with the Respondents photograph evidencing the days the Respondent made each withdrawal.
The Appellant never challenged Exhibit D2 even during cross examination and failure to do so shows that they have admitted that the Claimant never at all material time made use of Exhibit D2. See Iteogu v. L.P.D.C (2009 17 NWLR (pt. 1171) 614 at 635.
?The main issue in this appeal is whether the sum of N9,000,000.00 was actually deposited into the said account with the appellant and whether the Respondent was defrauded of her money in custody of the Appellant. Any other minute details which have transpired in the course of trial are minute details which even if there are minor contradictions do not go into the live issues in the appeal nor will they cause the reversal of Judgment even if believed according to Learned Counsel. Therefore, Learned Appellant Counsel’s submission that the trial Court did not evaluate all the evidence
tendered is not maintainable.
In respect of Exhibit 1, Learned Counsel submitted that the trial Court found it more equitable and credible because it contains the Records and facts of all the Exhibits tendered by the Appellant at the trial Court from Exhibits D-D5 except Exhibits?D6 &?D7 which are the statements on Oath of DW1 and DW2 respectively.
Learned Counsel then submitted that the Learned trial Judge properly exercised its primary function of evaluating-and assessing the evidence and Exhibits adduced by both parties. As a result therefore, Learned Counsel urged the Court to resolve this issue in favour of the Respondent.
ISSUE No. 2
“Whether the Respondent at the trial Court failed to prove the allegation of fraud beyond reasonable doubt (Ground 5, 6, 7 and 11).
In dealing with this issue, the Respondent alongside adopted all her argument in issue No. 1 in support of this issue No. 2. The Respondent, he stated was able to prove that fraud was committed by the Appellant with her money in the custody of the Appellant beyond reasonable doubt.
?Also that the Respondent proved that
Clement Jumbo was her account officer with the Appellant bank, and as such the relationship of banker and customer has already been established. See Afribank Nig. V. Anuebunwa (2012) 4 NWLR (pt. 1291) 560.
Learned Counsel stated that it has been proved that the Respondent’s money is in the custody of the Appellants and that the process of withdrawing money through Exhibit 2 (still in the custody of the Claimant and Exhibit D2 (which did not contain the authorized signature of the Claimant, the requirement of proof beyond reasonable doubt in respect of this case has been met by the Respondent on Record. See Iteogu v. L.P.D.C (supra).
Also proved according to Respondent Counsel is the fact that the counter cheque No. 390 (Exhibit D2) for the transaction on 13/08/2007 as appeared on the face of Exhibit D2 was different with the counter cheque No. 31484149 as appeared on Exhibit 1, the Claimant’s statement of account, as against the transaction of the same date and the same amount of money which is N300,000.00. All these go to show the extent of tampering with the Claimant’s account, thereby satisfying the proof beyond reasonable doubt.
?The date
on the cheque leaf No. 82514008 which is 19/10/2008 was a Sunday which is not a working day is also enough proof beyond reasonable doubt according to Respondents Counsel.
In further proof also, it could be seen as stated by counsel that upon comparing the sequence the transactions made with the cheque leaves Exhibit D (8 detached cheque leaves) and Exhibit 2 appeared in Exhibit 1, the Court will find out that it differs from the sequence in which they appeared in Exhibit Dl, showing that Exhibit D1 was manufactured for the purpose of defending the suit and have a defence on Exhibit 2 which was used by the Defendant while still in the custody of the Respondent. As a result of the above, Appellant’s Counsel then urged the Court to discountenance Exhibits D1 & D3 as they were manufactured during the pendency of this suit for the purpose of defeating the course of justice.
The Appellant tendered Exhibit D2 because the Respondent gave it a notice to produce cheque numbers 3149149 and 1218 which were the three cheques leaves numbers that appeared in her statement of account used for withdrawal that do not belong to her. Rather than do same, the
Defendant in compliance tendered cheque numbers 818, 1218 and 390 in place of cheque No. 3149149 which appeared in Exhibit l against the transaction of 13/08/2007 withheld to produce the said cheque number 3149149, the Appellant knew that if they call evidence of cheque No. 3149149, it would be against them. He then urged the Court to invoke Section 167(d) of the Evidence Act.
The Respondent at the trial Court established that Jumbo Clement was the agent of the Appellant (Claimant’s account officer) and so the principal is bound with the act of its agent. From the evidence of DW1, the same Jumbo Clement who before now defrauded the bank also defrauded the Respondent.
Learned Counsel therefore submitted that from the totality evidence adduced, the Respondent no doubt proved the allegation of fraud on the balance of probabilities as well as beyond reasonable doubt, and so he urged the Court to resolve this issue in their favour.
ISSUE NO. 3
Whether the Appellant from the evidence adduced by the Respondent was negligent in handling the account of the Claimant in its bank (Ground 12).
In arguing this issue, Learned Counsel referred the Court to the case of Afribank Nig. Plc. V. Anuebunwa (2012) 4 NWLR (pt. 1291) 560 and posed a question whether there exist any relationship between the parties and he answered in the affirmative. That relationship means that the Appellant owes the Respondent a duty of care. The Respondent he stated was able to prove that all the withdrawals in her statement of account were not made by her. Exhibit D was not challenged during trial. The implication is that the Appellant has admitted same. Exhibits 1, Exhibit D and Exhibit 2 bear different dates which are in conflict with the information as to dates the same transaction were made as contained in Exhibit 1.
From the above, it could be seen according to Counsel that the Appellant was negligent in handling the account of the Claimant in its bank and urged the Court to resolve this issue in their favour.
ISSUE NO. 4
Whether the findings of fact of the Learned trial Judge was perverse, looking at the totality of the defence before him. (Grounds 4, 9, 10 & 13).
On the finding whether a Judgment of
the Court is perverse or not, Learned counsel referred the Court to the case of Mmamman v. F.R.N (2013) 6 NWLR (pt. 1351) 569. It is the submission of Learned Respondent’s Counsel that the Judgment of the trial Court is not perverse because it is based on pleaded facts, evidence and documents adduced before it. The Appellants never objected to the tendering of the Respondents Exhibits at the trial and therefore she could not be expected to question the weight or probative value ascribed to the Exhibits admitted in evidence. It is therefore wrong to say that the Court did not place any weight on Exhibits Dl & D3 because it is not every document admitted in evidence that is given a probative value.
On the whole, Learned Respondent’s Counsel then submitted that the findings of fact and from the totality of the evidence and documents adduced before, the Lower Court was not in any way perverse in its Judgment. He the urged the Court to resolve this issue in their favour and finally to dismiss the Appeal and uphold the Judgment of the lower Court.
?From the nature of this case, one will agree that the whole proceedings were conducted with documentary
evidence. It is now firmly settled that documentary evidence is the best evidence. It is the best proof of the contents of such document and no oral evidence will be allowed to discredit the contents thereof except where fraud is pleaded. See Skye Bank Plc. v. Chief Moses Bolanle Akinpelu (2009) LPELR – 1049 (Sc); A/G Bendel State & 2 ors v. U.B.A Ltd (1986) 4 NWLR (pt. 337) 547 at 563, B. Stanbilini & Co. Ltd v. Nnabueze Obasi (1997) 9 NWLR (pt. 520) 293 at 334.
It is against the above background that this Court will be guided in the resolution of the various issues raised by parties in the determination of this appeal.
In resolving the issues, I shall resolve the Appellant’s issue No. 1 and also the Respondent’s issue No. 1 as well since both of them deal on the issue of evaluation of evidence. The issue raised here is that whether the Learned trial Judge failed to evaluate and assess the evidence and Exhibits adduced on the parties. This issue is distilled from Grounds 1, 2, 3, 8 and 14 of the Grounds of Appeal.
It is an elementary principle that the function of the evaluation of evidence is essentially that of the trial Judge. See
Onuoha v. State (1998) 5 NWLR (pt. 548) 118, So where the trial Judge has unquestionably evaluated evidence and justifiably appraised the facts, it is therefore not the business of the Appellate Court to interfere and to substitute its own views for the view of the trial Court. See Woluchem v. Gudi (1981) 5 SC 291; Enang v. Adu (1981) 11-12 SC 25; Igago v. State (1999) 14 NWLR (pt, 637)1.
The Appellant’s in their brief of argument alleged that about 80% of the documents they tendered and admitted in evidence were not evaluated and probative value ascribed to them by the Lower Court.
In the instant appeal, the Appellant called two witnesses during trial and tendered the following documents as Exhibits.
(1) Exhibit Dl – Cheque book maintenance
(2) Exhibit DA – Counter cheque leaves
(3) Exhibit D3 – Claimant’s statement of account
(4) Exhibit D4 – Opening of account package
(5) Exhibit D5 – Claimant’s signature card
(6) Exhibit D6 – Statement on Oath of DWI
(7) Exhibit D7 – Statement on Oath of DW2
Before considering whether or not the Lower Court did evaluate both the evidence and the Exhibits in this appeal, it
will be highly appreciative if Court looks at the Judgment of the Lower Court at page 194 where the said:
“I have made a thorough study of Exhibits… and discovered some plain contradiction which are not in accordance with proper banking practice. A close perusal of Exhibit 1 shows that not only were the cheque leaves out of sequence for instance, cheque leaf No. I also found that the date on counter cheque No. 818 (Exhibit D2) which is 06/10/2007 does not tally with the date on the bank stamp which is 08/10/2007. Again, I realized that the date 19/10/2008 on cheque leaf number 82514008 is a Sunday which in our country is regarded as non working day and no banking transaction is reasonably expected to take place.
All the above contradictions put together are to my mind very material and important to the success of the Claimant’s case… the account of the Claimant which she kept with the Defendant was indeed handled in a way to raise a strong suspicion of fraud… the Defendant tendered Exhibits D and D2 while purporting to be the statement of account of the Claimant, contains facts and figures that are in material conflict with the facts in Exhibit
1 which is also the statement of account of the Claimant of which DW1 under cross examination admitted that it bore the logo of the Defendant and that it indeed issued from the Defendant. Hence I find it more credible to Exhibit I and to disregard Exhibit D and 2…..”
From the above, it is crystal clear that the Lower Court went to town in trying to justify its position as the trial Court that the primary function of evaluating and ascription of probative value thereto, having had the advantage of seeing and hearing witnesses as they testify. This Court as an Appellate Court because of its disadvantage of not seeing and hearing witnesses, would not therefore interfere with findings of fact of a trial Court. See Oshe v. Okim Biscuits Ltd (2010) 11 NWLR (pt. 1206) 482.
I too have followed the reasoning of the Learned trial Judge before assessing and ascribing probative value to the Exhibits and especially Exhibit 1 and I do not find anything perverse that the conclusion arrived at is not supported by evidence in Court or that it is not the result of a proper exercise of judicial discretion. See Okoye v. Ejiofor (1934) WACA 130; Odofun v. Ayoola (1984)
11 SC 72, Amusa v. Kossai (1986) 4 NWLR (pt. 35) 57.
?
In evaluating the Exhibits, the Learned trial Judge took into account all the Exhibits here in before mentioned. It is therefore not true that the Learned trial Judge only considered Exhibits D, D1 & D2 of the Appellants set of Exhibits as could be seen on page 194 of the Record of Appeal. Amongst the documents tendered by the Appellant is Exhibit D3 (statement of account which the appellant produced during the pendency of this matter. After evaluating this Exhibits D1 & D3, the Learned trial Judge found them to be doctored statement of account produced by the Appellant on Record and as a result refused to attach any weight on them. Exhibit D2 was also evaluated on its own merit even though no probative weight was attached to it. In the case of Haruna v. A.G Federation (2012) 9 NWLR (pt. 1306) 419, the Supreme Court said:
“The fact that evidence, oral or documentary is admissible does not mean that it has weight. It may not have any probative value or any weight at all, though admissible” See also Haruna v. A.G Federation (supra).
It can be seen from the above case Law that the Learned
trial Judge evaluated and ascribed probative value only to these Exhibits that were relevant to the live issues in this appeal. As postulated herein before, by the Appellant’s Learned Counsel that the main question in this case is whether or not the Respondent withdrew her money with the Appellant in her Ikom branch or the money was fraudulently withdrawn on account of the criminal negligence of the Appellant. This necessarily calls for the evaluation of all the Exhibits that can assist in coming to a just decision of the matter.
And so, the assertion by the Appellant Counsel that 80% of the Defendants Exhibits admitted in evidence is therefore of no moment Exhibit 1 was properly evaluated by the Learned trial Judge and accorded it much credibility because it is the base of the pyramid upon which the whole case in the Lower Court is standing.
Therefore, I hold the view that the Lower court properly evaluated the evidence (both oral and documentary) before arriving conclusion. As a result, this issue is hereby resolved in favour Respondent and against the Appellant.
Issue No. 2 is whether the Learned trial Judge was right in holding that the
Claimant proved the allegation of fraud beyond reasonable doubt.
The Law is well settled that if the commission of crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. See Section 138 of the Evidence Act. In other words, although the prepondence of probability may constitute Ground for a verdict in civil proceedings, this general rule is subject to the statutory proposition in Section 128(1) of the Evidence Act. In this case the alleged fraud being directly in issue must be proved beyond reasonable doubt whether in a civil or criminal case. See in Re Otuedon (1995) 4 NWLR (pt. 392) 655.
The issue of fraud arose in this matter when the Defendant (Respondent) denied the signature on Exhibit D as not being her own and so has discredited the said Exhibit. This allegation of fraud according to the Appellant on Record were not proved beyond reasonable doubt or on the balance of probabilities. This allegation he said created real doubt in the mind of the Court. It is obvious from evidence of parties that the Respondent has some money in the Appellant’s bank and that one
Clement Jumbo, a staff of the bank was her account officer. By this initial stand point, the relationship of a bank and customership has been established. There is also established a process of withdrawing money through Exhibit 2 (which did not contain the authorised signature of the Respondent, the requirement of proof beyond reasonable doubt in respect of this case has been met by the Respondent on Record. See Iteogu v. LPDC (supra). Also, proved beyond reasonable doubt is that the counter-cheque No. 300 (Exh. D2) for the transaction on 13/8/2007 as appeared on the face of the Exhibit 1, the Claimant’s statement of account, as against the transaction of the same date and the same amount of money which is N300,000.00. The above show the extent of tampering of the Respondent’s account in the bank of the Appellant which opened flood gate to the commission of fraud.
Furthermore, the date on the cheque leaf No. 82514008 which is 19/10/2008 was a Sunday which is not a working day is also another proof beyond reasonable doubt.
?Also, comparing the sequence, the transactions made with the cheque leaves Exhibit D (8 detached cheque leaves) and Exhibit 2 which
appeared on Exhibit 2 which appeared on Exhibit 1, it could be seen that it differs from the sequence in which they appeared in Exhibit D1, showing that Exhibit D1 was manufactured during the pendency of this suit and have a defend on Exhibit. Exhibit 2,?which was used by the Appellant while still in the custody of the Respondent. That one Clement Jumbo is a staff of the bank is not being denied and that hitherto, the said Clement Jumbo had defrauded the bank before.
From all the above particulars and pieces of cogent evidence on Record, I have the opinion in my mind that the Respondent has not failed to prove the allegation of fraud beyond reasonable doubt. She has proved the allegation of tampering and misrepresentation of figures on her account and therefore the Respondent has proved the alleged fraud as required by Law.
Issue No. 3 is to the effect whether the trial Judge was right in holding that the Appellant was negligent in handling the account of the Respondent which led to the claimant’s money being withdrawn fraudulently without her consent.
Appellant’s stand on this issue is that all the particulars of negligence must be pleaded and
also the duty of cared owed proved. See U.T.B. v. Ozoemena (2007) 3 NWLR (pt. 1022) 448. No evidence of the duty of care was given yet, the trial Judge made findings of fact not supported by evidence. See Aghi v. Ejinheonye & Bros Ltd (1992) 3 NWLR (pt. 228) 200; Atoyebi v. Odudu (1996) 6 NWLR (pt. 157) 384; Sadiq v. Bundi (1991) 1 NWLR (pt. 210) 443.
It is well established that for a claim in negligence to succeed, plaintiff must prove that the Defendant owes him a duty of care and was in breach of that duty. See Oyidiobu v. Okechukwu (1972)5 SC 191. As in this case, the Respondent must prove that the alleged fraud was as a result of the negligence of the Appellant on Record. See also B. J. Ngilari v. Motehrcat Ltd (1999) 13 NWLR (pt. 636).
All that is necessary as a step to established the tort of actionable negligence is to define the precise relationship from which the duty of care is to be deduced, and that duty established.
In the present case, the statement of claim of the Respondent Paragraph 3 states thus:
“The Claimant on the 10th day of July, 2007, opened a current account in the Defendant’s bank with the sum of N4,005,000.00
only which was the money made for leasing out her land to MTN Nigeria communications Ltd for ten years and the Defendant issued the Claimant account No: 017900200 – 21 – 0 – 84 as her account number in its bank and the above mentioned amount was paid into the said account by the Claimant.
(4) That the N4,005, 000.00 was paid in with a Diamond Bonk cheque No. 15543031 by one Ateke, MTN agent .”
The Respondents money in the hands of the bank are not in the custody or under the control of the customer i.e the Respondent. Such money remains the property in the custody and control of the banker and payable to the customer when a demand is made. This is so because if anything happens to the money thereafter e.g. Theft of the money, it is the banker and not the customer that bears the loss.
The above principle applies to the instant case. The Appellant owes the Respondent a duty of care to keep her money in safe custody and payable to her on demand and also to make sure that it is not unnecessarily or illegally tampered with by fraudsters. This condition/terms, the Appellants have breached.
?For Clement Jumbo, a staff of the Appellant to have
perpetuated fraud while under the employment of the Appellant to their own unawareness is to say the least an act of negligence on the part of the Appellant and I so hold. It is on the basis that I hereby resolve this issue in favour of the Respondent and against the Appellant.
Issue No. 4 which is whether the findings of facts of the Learned trial Judge are not perverse and if the answer is in the affirmative, whether the perversity did not occasion a miscarriage of justice; Learned Appellant’s Counsel submitted that the failure of the trial Judge to accord weight to Exhibits Dl & D3 tendered by the Appellant occasioned a miscarriage of justice coupled with the fact that the trial Judge closed its eyes to the entire evidence of the Defendants.
In Udengwu v. Uzuegor (2003) 13 NWLR (pt. 836) 136, the Court held that:
“A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence or that it mis-conceived the thrust of the case presented; or took irrelevant matters into account which substantially formed the basis of its decision; or went outside the issues jeopardizing the merit of the
case or committed various errors that faulted the case beyond redemption.”
The hallmark is invariably, in all this, a miscarriage of justice and the decision must be set aside on appeal. see Atolagbe v. Shorun (1985) 1 NWLR (pt,2) 360, Adimora v. Ajufo (1988) 3 NWLR (pt. 80)1; Agbomeji v. Bakare (1998) 7 SC (pt.1) 10, Odiba v. Azege (1998) 7 SC (pt.1) 79.
In the instant case, the trial Judge took into account, the evidence of pleaded facts, and property evaluated all the documents tendered as Exhibit before ascribing probative value and weight where applicable.
Even Exhibits Dl & D3 were properly evaluated before not attaching weight to them. What is more is that it is not every document admitted In evidence that should be accorded weight. In this Judgment, I have not seen any misuse of admitted evidence by the trial Judge that will make the Judgment to be perverse as alleged by the Appellant’s Counsel.
I therefore resolve this issue in favour of the Respondent and against the Appellant. Having resolved all the issues in this Appeal against the Appellant, this appeal therefore fails and it is hereby dismissed for lacking in merit.
Consequently, the Judgment of the Lower Court is hereby affirmed.
Cost assessed and fixed at N50,000.00 against the Appellant and in favour of the Respondent.
ONYEKACHI AJA OTISI J.C.A.:
I had the privilege of reading, in advance, a draft copy of the lead Judgment just delivered by my learned Brother, Paul Obi Elechi, JCA, in which he dismissed this appeal. I am in complete agreement with his reasoning and conclusion, which I adopt as mine.
I also dismiss this appeal. I abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.:
I have had the privilege of reading the draft of the lead judgment delivered by my learned brother PAUL OBI ELECHI, JCA and I agree with his conclusion and consequential orders therein.
This appeal is bereft of any iota of merit and I also dismiss it.
Appearances
F. EBANG ESQ.For Appellant
AND
P.I. OGWURIKE ESQ.For Respondent
