UNITY BANK PLC v. ALIYU ADAMU & ORS (2013)

UNITY BANK PLC v. ALIYU ADAMU & ORS

(2013)LCN/6266(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of June, 2013

CA/YL/44/2012

RATIO

WHETHER AVERMENTS IN PLEADINGS MUST BE SUPPORTED BY EVIDENCE

The law is since settled and this bears emphasis that averments in pleadings, being not supported by evidence, are deemed abandoned. In the absence of oral and/or documentary evidence, averments in pleadings are void. See Kaydee Ventures Ltd V The Hon. Minister of FCT (supra); Cameroon Airlines v Otutuizu (2011) 2 SCNJ 96; 7 The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v Eke-Spiff (2009) 2 SCNJ 119. Consequently, all the evidence adduced by the Respondents through the PW1 in proof of their claim stands unchallenged.

The standard of proof in civil cases is on the preponderance of evidence or on the balance of probabilities. The evidence adduced by the Plaintiffs should be put on one side of the imaginary scale and evidence adduced by the defendant put on the other side of the scale and both should be weighed together; not by the number of witnesses called by either side but by probative and qualitative value to see which side preponderates. This is what is meant when it is said a civil case is decided on a preponderance of evidence or balance of probabilities. In civil cases, the burden of proof rests on the party asserting. It lies on the person whose success in the action depends on proving his assertion. See Alade v Alic (Nigeria) Ltd (2010) 12 SCNJ 143.

However, the law is also trite that where one side does not call evidence, the minimum or least evidence called by the other party satisfies the requirement of proof by it in civil cases. This is the minimum evidence rule. See Adewuyi v Odukwe (2005) 7 SCNJ 227. In the instant case, as there was no evidence offered by the Appellant, the imaginary scale preponderated very heavily in favour of the Respondents. From the proceedings at the trial Court in the printed Record of Appeal, there is nothing from the defence to place against the evidence of the Respondents/Plaintiffs. See Sosan v HFP Engineering (Nig) Ltd (2004) 3 NWLR (Pt. 861) 546; Balogun v Labiran (1988) 3 NWLR (Pt. 80) 66; & Mogaji v Odofin (1978) 4 SC 91. As afore-stated it is settled that where there is no evidence to put on one side of the imaginary scale in a civil case, the minimum evidence on the other side satisfies the requirement of the rule. See also Buraimoh v Bamgbose (1989) 3 NWLR (Pt.109) 352; Nwabuoko v Ottih (1961) 2 SCNLR 232; (1961) ALL NLR 487.PER JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ABUBAKAR ABBA Justice of The Court of Appeal of Nigeria

Between

UNITY BANK PLC – Appellant(s)

AND

1. ALIYU ADAMU

2. KAREWA MUHAMMED A.

3. DEWA AISHATU SUING FOR & ON BEHALF OF OR AS REPRESENTATIVE OF

(1) ABDULLAHI HALADU

(2) NAMJO MAKKUS

(3) MARTINS GINTERE

(4) HAMMAJO ALIYU

(5) GONI USMAN

(6) MARAFA DAHIRU

(7) BAKARI DANJUMA W

(8) THOMAS JOEL

(9) IBRAHIM LADI

(10) BELLO NGILA – Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The respondents herein were former members of staff of the Federal College of Education, Yola who were retired in the year 2007. Thereafter, they appeared before a Screening Committee in Kaduna where they were screened and computations of their benefits made, based on their years of service, grade Level, documents, etc. the Federal government then paid them their severance benefits, via cheques through the office of the Accountant General of the Federation. The Respondents lodged the cheques into their respect Savings accounts opened with the appellant Bank and the proceeds of the cheques were credited to these accounts. Sometime after that, the Respondents discovered to their chagrin that various sums of money had been debited from their Savings accounts, apparently without their knowledge and consent. After protesting to the Appellant through their solicitors to no avail, the Respondent filed an action before the High Court of Justice, Adamawa State seeking the following reliefs as set out in their Amended Statement of Claim at pages 40-43 of the printed Record of Appeal:

“WHEREOF the Plaintiffs seek the following reliefs against the defendant:

1. A declaration that the slashing and debiting of severance allowances paid to the Plaintiffs which they lodged in their accounts without their knowledge, consent and authority is illegal, wrongful and amounts to breach of contract.

2. The total sum of N11,477,035.08 (Eleven Million Four Hundred and Seventy Seven Thousand and Thirty five Naira, Eight Kobo) being the total amount of the money which the defendant wrongfully slashed and debited from the respective accounts of the Plaintiffs.

3. An order directing the Defendant to re-credit the respective accounts of the Plaintiffs with the said amount of the money wrongfully debited from their accounts, OR in the alternative an order directing the Defendant to pay the said sum of N11,477,035.08 (Eleven Million Four Hundred and Seventy Seven Thousand and Thirty Five Naira, Eight Kobo) only through the court.

4. N10,000,000.00 General damages for breach of contract, detinue and conversion.

5. Cost of this litigation.

The Defendant denied the claim and in furtherance of this, filed a 22 paragraph Statement of Defence as contained at pages 44 – 48 of the printed Record. At the trial, the Respondents adduced evidence through one witness and tendered numerous documents marked Exhibits ADSY/51/2008 1 – 41 in proof of their claim; After numerous adjournments spanning over a period of about eight (8) months granted to the Appellant to defend the claim with no positive result, the trial Court closed the defence of the Defendant and ordered for written addresses as closing arguments by both learned Counsel. These were duly filed and adopted. Subsequently, after a period of over nine (9) months, the learned trial Judge, Lawi, J., delivered his Judgment in the following terms, inter alia:

“It is my view that PW1 in her evidence has proved the claim as made in (sic) 16 paragraph Statement of Claim and I hold that the plaintiffs have successfully proved the claim of the plaintiffs and having proved the claim the reliefs sought are granted as prayed.”

Dissatisfied by this decision, the Appellant filed his Notice of Appeal on 15-08-12 complaining on six (6) Grounds on the 15-08-12. Thereafter, the Appellant filed an Amended Notice of Appeal on the 30-11-12, and this was deemed duly filed and served on 20-03-13. The Grounds of Appeal, bereft of their particulars, are as follows:

1. The judgment of the trial court is against the weight of evidence.

2. The trial lower court erred in law and thereby occasioned a miscarriage of justice when it held “The case at hand is a civil case and which the law prescribes that it is proved on the preponderance of evidence or on a probability of evidence. It is my view that PW1 in her evidence has proved the claim as made in (sic) 16 paragraph Statement of Claim and I hold that the plaintiffs have successfully proved the claim of the plaintiffs and having proved the claim the reliefs sought are granted as prayed.”

3. The trial lower Court erred in law and thereby occasioned a miscarriage of justice when it gave its judgment well over nine months after the final addresses by counsel.

4. The lower trial Court erred in law and thereby occasioned a miscarriage of justice when it did not evaluate the evidence before arriving at the conclusion it did.”

On the 20th March, 2013, when this Appeal was called up for hearing Mr. Akirikwen, learned Counsel for the Appellant, adopted and relied on the Amended Appellant’s Brief of Argument filed on 30-11-12 and deemed properly filed on the 20-03-13 as the Appellant’s arguments in this Appeal. He urged the Court to allow the Appeal, set aside the decision of the trial Court and dismiss the claim of the Respondents. In like vein, Mr. Babakano, learned Counsel for the Respondents, adopted and relied on the Respondents, Brief of argument filed on 12-11-12 and deemed duly filed on 20-13-13 as the Respondents’ arguments in this Appeal. He urged the Court to dismiss the Appeal and affirm the Judgment of the trial Court.

The Appellant distilled two (2) issues from the Grounds of Appeal for determination by this Court. In like vein, the Respondent also formulated two issues which are analogous in substance. I therefore adopt the issues formulated by the Appellant as the issues to resolve this Appeal. They are thus set out hereunder:

1. Whether by the pleadings and evidence adduced before the trial Court the Respondents have satisfied the legal requirements for the grant of all their reliefs sought before the trial Court.

2. Whether the inability of the lower Court to deliver its Judgment within three months from the date of final addresses of counsel has not affected the Judge’s memory of the evidence such that he has forgotten the nature of evidence to evaluate same before making his findings.

In arguing issue one, Mr. Akhirikwen submits that, from the Statement of Claim, none of the Respondents knew how much was the credit standing in their accounts and none of them demanded for payment and the Appellant refused to honour their demands even when they still have some money in the account. Counsel argues that a demand, in banking transaction, is upon the presentation of a cheque, (when it is in respect of a current account), and the presentation of a withdrawal slip, (when it is a savings account), by a customer of the Bank. It is when the reaction of the Bank is in the negative when there is money standing to the credit of the customer that there can be said to be a breach.

Learned Counsel further submits that the contractual obligation between a bank and a customer is personal in respect of a savings account maintained by each individual account holder since a third party has no right to access the money in the account. The Respondents did not plead that, having monies to their credit in their accounts, made demands for payments of such monies and the Appellant refused to honour such demands. Counsel picks holes in the evidence of the PW1 in that she failed to state the dates on which the Respondents went to the Bank, how much they have in their respective accounts, how much was demanded, how much the Bank did not pay, and how she got this information from the other Respondents, if she was not told. Counsel thus contends that the evidence of this witness lacks credence as she can only state the position of her own account and not give information in regard to the accounts of the other Respondents. He argues that by Section 3(1) of the Bills of Exchange Act, Cap B8 LFN, 2004, a withdrawal slip falls strictly outside the instruments under which a third party becomes a privy with regard to dealings with accounts in the bank.

Learned Counsel therefore submits that the evidence of the PW1 touching on the other Respondents’ Savings Accounts is tantamount to hearsay. He relies on Ogbeide V Osula (2004) 12 NWLR (Pt. 886) 86, and Sections 37 & 38 of the Evidence Act, 2011 to submit that hearsay evidence is inadmissible. Counsel further submits that there is no evidence proving the facts pleaded as affecting the twelve (12) other Respondents since they only called one witness to prove that there were contracts between the thirteen (13) of them. He submits that it was not possible for PW1 to give evidence in respect of another account holder’s transaction with the Appellant. Counsel therefore urged the Court to hold that the Respondents, as Plaintiffs, did not plead and prove a breach of contract between them and the Appellant, and that the trial Court was thus in error when it granted reliefs in favour of the Respondent for breach of contract.

Going further and relying on UPS V Adeyosoye (2011) 5 NWLR (Pt. 1240) 315 & Garba V Kur (2002) 8 NWLR (Pt. 831) 280 for the definition and ambit of special and general damages, learned Counsel submits that the particulars of special damages should be the breakdown of the items of special damage with the sum total of what the plaintiffs claim and the total indicated. Counsel contends that from paragraph 10 of the Statement of claim, it cannot be said with certainty that the sum total of the figure shown is N11,477,035.08, which is the sum also given in evidence by the PW1. In view of the alleged uncertainty, Counsel submits that it is not the function of this Court to recalculate the figure as that is the function of both the pleadings and credible evidence. Counsel submits that since the amount is ascertainable, the Plaintiffs ought to have pleaded the particulars to the final total and given evidence to buttress such pleadings. He relies on NMA v MMA Inc. (2010) 4 NWLR (Pt.1185) 613 & Nwanji V Coastal Serv. (Nig) Ltd (2004) 11 NWLR (Pt. 885) 552.

Counsel submits that special damages must be pleaded and proved strictly. Counsel argues that from paragraph 10 of the Statement of Claim, it cannot be said that the items indicated therein have a precise calculation with a total figure. He submits that since the ascertained claim of the Plaintiffs was not specifically pleaded, the trial Court ought not to have relied on the evidence given in proof of such claim by the Plaintiffs. On the authority of NMA v MMA Inc. (supra) @ 643 – 644, Counsel urges the Court to expunge the evidence on this ground.

Again, in respect of the evidence adduced through the sole witness, PW1, Counsel submits that the number of persons who complained and were Plaintiffs were thirteen (13). The Severance pay slips tendered by the Respondents through the PW1 and admitted in evidence as Exhibits ADSY/51/2008 1-13 were only 13 in respect of persons whose names were not mentioned. The cheques were only for seven (7) persons whose names were however mentioned in evidence and which Cheques were admitted in evidence as Exhibits ADSY/51/2008 14 – 20.

Counsel contends that there is no link between the Severance Slips and the seven (7) Cheques tendered and admitted in evidence. Learned Counsel submits that thirteen (13) Account Books were also admitted in evidence as Exhibits ADSY/51/21 – 33, whereas six (6) Deposit slips were admitted as Exhibits ADSY/51/2008 34-39. Since these documents were intended to prove the relationship of each of the Plaintiffs to the Defendant in order to establish the claim of the Plaintiffs, Counsel submits that the six (6) Deposit Slips and the seven (7) Cheques did not actually establish the claim. Counsel contends that the Respondents did not show the lower Court the bank tellers evidencing the payment of monies into their accounts yet the trial Court went ahead to grant the reliefs claimed.

In addition, Counsel submits that those Respondents who have not shown that they maintained any account with the Appellant have no banker-customer relationship with the Appellant and therefore cannot complain of any injury to them. He contends that same applies to those who have not shown that there was credit in their accounts and that the Appellant refused to pay them on demand. Counsel therefore submits that the lower Court was in error in awarding special damages to the Respondents. Relying on Otaru & Sons Ltd V Idris (1996) 6 NWLR (Pt. 606) 330, Counsel submits that the PW1’s mere reference to paragraph 10 of the Statement of Claim during her testimony at the lower Court, does not amount to proof of the contents of that paragraph without her vivo voce evidence particularising same, and that the trial Court erred when it held that the Respondents had thereby proved their claims and awarded them special damages.

Counsel submits that since the dispute between the parties borders on contract, the Respondents are not entitled to special damages unless they prove that such damages were within the contemplation of the parties at the time of making the contract. Sosan V HFP Eng. (Nig) Ltd (2004) 3 NWLR (Pt. 861) 546 is relied upon.

Furthermore, learned Counsel contends that the Respondents, through the evidence of their only witness, did not explain the purport of the documents tendered through her. He therefore submits that where documents are tendered in evidence as proof of a specific point, the duty on the party who wants to relate those documents to an aspect of his case is to say so specifically and not to leave the trial Court to investigate the contents of the documents. The admitted documents, useful as they could be, would not be of much assistance to the trial Court in the absence of admissible oral evidence by a person who can explain their import. Alao V Akano (2005) 11 NWLR (Pt.935) 160 is relied on.

Learned Counsel submits that since the transactions were between the agents of the Appellant and the Respondents as individual customers, tendering these documents through the PW1 makes it documentary hearsay. He relies on Mark v Abubakar (2009) NWLR (Pt. 1124) 79. Counsel thus urged the Court to so hold and place no reliance on the said documents.

In respect of the claim for general damages, learned Counsel submits that where there is no evidence to support a claim for damages, the claim ought to be dismissed. He contends that the Respondents failed to lead credible evidence to show that the Appellant caused damages for the amount claimed. In short, it is the Appellant’s position that there were no averments in the Statement of Claim or credible evidence in support of both the special and general damages claimed. He also argues that, in cases of breach of contract, the assessment of damages is calculated on the loss sustained by the injured party, which loss was either in the contemplation of the parties or is an unavoidable consequence of the breach. Reliance is placed on Ijebu-Ode LG V Adedeji Balogun & Co (1991) 1 NWLR (Pt. 166) 136. Counsel thus submits that the lower Court was in error to have awarded both special and general damages in favour of the Respondents. Counsel urged the Court to resolve this issue in favour of the Appellant.

In responding to this issue, learned Counsel for the Respondents, Mr. Babakano, submits that the three (3) Respondents who filed the suit for and on behalf of ten (10) others, proved their case against the Appellant having regard to the state of pleadings and the evidence adduced before the trial Court. Counsel argues that the Respondents were customers of the Appellant having opened Saving Accounts with the Appellant and deposited their cheques with which they were paid their severance allowances into their respective accounts. He refers to the testimony of the PW1 and the Exhibits ADSY/51/2008 1 – 25. Counsel contends that from this evidence, the Appellant tampered with the respective accounts of the Respondents by debiting and slashing same. In addition to the oral evidence, he refers to paragraphs 4, 5, 6, 8, 9, 10 & 11 of the Statement of Claim. He also relies on NDIC V Okem Enterprises Ltd (2004) 10 NWLR (Pt. 880) 107 where the Supreme Court held that a customer of a bank in relation to banking is any person having an account with a bank or for whom a bank has agreed to collect items.

Counsel relied on the evidence of the PW1 which substantiated the averment in paragraph 10 of the Statement of Claim that the Appellant debited the monies from the Respondents’ respective accounts without their consent and approval. This was after the Appellant had honoured and credited the cheques that were deposited into the accounts of the Respondents. The cheques were not countermanded by the drawer of the cheques when the cheques were presented and deposited with the Appellant, and the Appellant honoured and credited the proceeds or value of the cheques to the respective accounts of the Respondents. The cheques having not needed to go through clearing, (the drawer and the drawee being customers of the Appellant Bank), Counsel submits that the value/proceeds of the cheques passed to the Appellant and then were credited to the Respondents’ accounts. Reliance was placed on Section 75 of the Bills of Exchange Act, Cap 35 LFN and NBA Ltd V Savol WA Ltd (1994) NWLR (Pt. 333) (incomplete citation supplied).

Counsel pointed out that the Appellant did not deny slashing and debiting the monies of the Respondents, and the amount is as stated in paragraph 10 the pleadings and the testimony of the PW1. Indeed, the Appellant admitted debiting the Respondents accounts in its Statement of Defence. The Appellant only justified its action based on alleged over-payment to the Respondents and this is as contained in paragraphs 4-19 of the Statement of Defence. Learned Counsel submits that the admission of a party in law is the best evidence in the sense that the opposing party needs not make any further effort to prove the admitted fact; and a Court of law is entitled to give judgment based on an admission by a party. He relies on Salawu v Yusuf (2007) 31 NSCQR 550 @ 579. Again, relying on Sdzsitter Stahl (GMBH) V Tunji Dosumu Industries Ltd (2010) 42 (Pt. 2) NSCQR 1085, Counsel submits that when an averment in the Statement of Claim is not traversed by the Defence, they are presumed admitted otherwise it would amount to defeating the object of pleading to settle the issues upon which the case between the parties are contested.

Learned Counsel submits that the relationship between a banker and a customer is that of a debtor and a creditor and it is founded on a simple contract. The banker is under an obligation to pay the customers on demand the amount standing to the customer’s credit on either his current or saving account. Reliance is placed on Yusuf V Coop Bank Ltd (1997) NWLR (Pt. 359) 677 @ 681; & Mai v STB Ltd (2008) 11 WRN 183 @ 185 – 186; NDIC (Liquidator of Allied Bank of Nigeria Plc) V Okem Enterprises Ltd (2004) 50 WRN @ 108; (2004) 10 NWLR (Pt.880) 107; (2004) 4 SC (Pt.II) 77. Counsel thus submits that it is the duty of a banker, and in this case, the Appellant, to abide by or obey its customers’ mandate with regard to debiting of customers, funds in the accounts of its customers. He relies on Union Bank v Adediran (1987) NWLR (Pt. 47) (incomplete citation supplied).

It is therefore the submission of learned Counsel that the Appellant had no right whatsoever to debit the accounts of the Respondents or slash the money in credit of their accounts without their authority or mandate. He contends that the Appellant is not only liable to the amount of money wrongfully debited or slashed in the respective accounts of the Respondents, but also liable in damages for breach of contract, detinue and conversion. He further submits that the Respondents have pleaded and proved the existence of contract between them and the Appellant, and breach of contract by the Appellant, as well as the commission of tortuous wrong of conversion by the Appellant.

Counsel sought to distinguish the case of Purification Tech. Nig. Ltd v AG Lagos State (supra) cited by the Appellant. He submits that the case of the Respondents is not that of dishonoured cheques or withdrawal slips, but that of wrongful debiting of accounts of customers. Counsel submits that there is evidence that the Respondents demanded the re-crediting of their respective accounts with the monies wrongfully debited or slashed via Exhibit 40a, a letter from their counsel sent to the Appellant. Counsel therefore argues that the cause of action for the recovery of the amount of money wrongfully debited from the accounts of the Respondents arose when the Appellant failed to comply with the letter of demand from the Respondents.

In respect of the Appellant’s submission that the evidence given by the PW1 was hearsay evidence, learned Counsel submits that the suit at the lower Court was filed in a representative capacity for and on behalf of thirteen (13) Respondents. A representative is a person authorized to speak on behalf of others, and for this, he relies on Okukuje V Odejenima (2001) 11 SC (Pt. II) (incomplete citation supplied). Counsel thus submits that the evidence of PW1 is not hearsay, but that it was positive, direct, relevant and admissible. He relies on Maigoro v Bashir (2000) FWLR (Pt. 19) 553) 9 (citation supplied incomplete); & Zaki v Magayaki (2002) FWLR (Pt. 135) 798 for the meaning of hearsay evidence.

On the issue of damages, learned Counsel argues that the reliefs claimed by the Respondents in paragraph 16(1)-(3) of their statement of claim, and which the trial Court granted, is not a claim for special damages but rather, a claim for refund of the money which the Appellant wrongfully debited or slashed from the Respondents’ accounts. He submits that the Respondents led evidence through their sole witness PW1 on all the exhibits tendered to prove, inter alia, payment of severance allowances Exhibits 1 – 13; payment of allowances by cheques Exhibits 14 – 20; opening of accounts with the Appellant – Exhibits 21 – 32; and deposit of money into their accounts – Exhibits 34 – 39.

Learned counsel further submits that the sum of N10,000,000.00 awarded to the Respondents as general damages was for breach of contract, detinue and conversion, as claimed. Counsel submits that the terms of contract between the bank and its customer involves obligations on both sides. Where a bank debits the account of its customer wrongfully, it would be inferred that the bank acted in breach of its duty to keep proper and accurate account for its customer. Reliance is placed on UBA V Folarin (2003) 7 NWLR (Pt. 818) 18 @ 21; & Allied Bank v Akubueze (1997) 6 NWLR (Pt. 509) 374 @ 378.

Again, relying on the case of Trade Bank Plc v Banilux (2003) NWLR (Pt. 825) 416 @ 422 (incomplete citation supplied), learned Counsel submits that where a banker collects a cheque and pays it over to a person who is not entitled to the proceeds of the cheque, the bank will be guilty of the tort of conversion, and the owner of the proceeds is entitled to recover the amount of money from bank. Counsel therefore contends that the Appellant has breached not only its contractual duty to keep proper and accurate account for its customers, (the Respondents), but it has also breached its duty to only abide or obey by the customers mandate, by slashing the respective accounts of the Respondents without their mandate or authority. Counsel argues that, in addition, the Appellant will be liable for the tort of conversion.

Furthermore, learned Counsel submits that general damages are implied in every breach of contract flowing naturally there from. General damages are implied by law and need not be specifically pleaded and proved by evidence. Reliance is placed on Dynamic Ltd v Aguocha (2002) (Pt. 104) 630 (citation supplied incomplete); & Hanseatic International Ltd v Usang (2003) FWLR (Pt.149) 1563. He thus submits that the trial Judge was right when he awarded general damages in favour of the Respondents as they proved their case on a balance of probabilities or on the preponderance of evidence. Counsel argues that since the suit was not contested, the standard of proof is minimum evidence. He relies on Fasehun v Pharco (1965) NMIR 444. Consequently, he urged the Court to resolve issue one in favour of the Respondents and dismiss the Appeal on Grounds 1 & 2.

In my humble view, this is a simple case where the Respondents accounts with the Appellant were debited in various sums by the Appellant who clearly admitted doing so in its statement of defence, and offers an explanation as to the reason why it did so. That being the case, the attempt by the Appellant to muddy up the waters, split hairs and try to confuse issues by throwing up irrelevancies and technicalities, are not of any assistance to this Appeal and amounts to nothing but chasing shadows. I will explain anon.

The place of pleadings in the trial of cases before our courts of law is well known. Pleadings are the summary of the facts of a case to put the other party on notice of what it has to contend with in court in order not to take him by surprise. In other words, it is to outline the issues in dispute between the parties. See Alibo V Okusin (2010) 4 SCNJ 1; Nasir V Civil Service Commission Kano State (2010) 2 SCNJ 184; Salzgitter Stahl GMBH v Tunji Dosunmu Industries Ltd (2010) 4 SCNJ 186.

Parties, as well as Courts, are bound by the pleadings of the parties. See Anyanwu V Uzowuaka (2009) 7 SCNJ 29. In addition, where the averments in pleadings are not supported by evidence, they are deemed abandoned and liable to be struck out. See Kaydee Ventures Ltd V The Hon Minister of the FCT (2010) 2 SCNJ 276. The Defendant is also required to clearly admit or deny the averments in respect of material issues in his Statement of Defence. Averments in a Statement of Claim not traversed in a Statement of Defence are deemed admitted. See Salzgitter Stahl GMBH V Tunji Dosunmu Industries Ltd (supra); Arisons Trading & Engineering Co Ltd V The Military Governor of Ogun State (2009) 6 SCNJ 141. It is for this reason that it is imperative to commence the consideration of this Appeal by settling up front what issues were thrown up for the determination of the lower Court by the parties’ pleadings before it.

The Respondents, who were the Plaintiffs before the lower Court pleaded, inter alia, as follows in their Statement of Claim:

3. “The Plaintiffs avers (sic) that after their retirement, they were paid their severance benefits together with the persons they are representing by the Federal Government through the office of the Accountant General of the Federation between 16th and 17th of April, 2008 in cheque.

4. The Plaintiffs avers (sic) that they all appeared before a screening committee in Kaduna where they were screened and computations of their benefits were made based on years of service, Grade level, documents presented and other relevant issues before they were paid their severance benefits.

5. The Plaintiffs avers (sic) that the amount of money paid to them and the persons they are representing in this suit is as follows:-

(1) Aliyu Adamu N2,231,812.34

(2) Karewa Mohammed A. N2,329,681.40

(3) Dewa Aishatu N2,145,408.17

(4) Abdullahi Halidu N984,740.59

(5) Namjo Makkus N474,977.01

(6) Martins Gintere N2,196,754.71

(7) Hammajoda Aliyu N836,711.53

(8) Goni Usman N856,093.46

(9) Marafa Dahiru N941,119.18

(10) Bakari Danjuma W. N1,004,128.30

(11) Thomas Joel N1,679,270.17

(12) Ibrahim Ladi N1,747,787.70

(13) Bello Nigila N1,747,786.90

5(a) The Plaintiffs plead their retirees’ severance pay slips and the cheques issued to them and that of the persons they are representing in this suit.

6. The Plaintiffs aver that they were persuaded by the Defendant together with the persons they are representing to opened (sic) a Savings Accounts (sic) with the Defendant and lodged their cheques in their respective account (sic) with the Defendant. The Plaintiffs pleads (sic) their deposit slips with that of the persons they are representing in this suit,

7. The Plaintiffs avers (sic) that the number of their saving accounts and that of the persons that (sic) are representing is as follows:-

(1) Aliyu Adamu 251-1035706-1-101

(2) Karewa Mohammed A. 251-1035528-1-101

(3) Dewa Aishatu 251-1036638-1-101-0

(4) Abdullahi Haladu 251-1035720-1-101-0

(5) Namjo Makkus 251-1034957-1-101-0

(6) Martins Gintere 1037953-1-101-0

(7) Hammajoda Aliyu 251-1036131-1-101-0

(8) Goni Usman 251-1037378-1-101-0

(9) Marafa Dahiru 251-1035384-101-0

(10) Bakari Danjuma W. 251-1035601-1-101-0

(11) Thomas Joel 251-1037621-1-101-0

(12) Ibrahim Ladi 251-1037621-1-101-0

(13) Bello Nigila 251-1037616-1-101-0

8. That the Plaintiffs avers (sic) after lodging their cheques issued to them in their respective accounts, the proceeds of the cheque (sic) were credited to their accounts. The Plaintiffs hereby pleads their savings account book (sic) with that of the persons they are representing and shall rely upon the documents at the hearing of this suit.

9. The Plaintiffs avers (sic) that the Defendant wrongfully debited their accounts with the persons they are representing without their knowledge or consent.

10. The Plaintiffs avers (sic) that the amount the money wrongfully debited from their accounts is as follows:-

(1) Aliyu Adamu N1,413,509.40

(2) Karewa Mohammed A. N1,130,266.20

(3) Dewa Aishatu N1,241,813.59

(4) Abdullahi Haladu N532,284.07

(5) Namjo Makkus N207,630.01

(6) Martins Gintere N1,322,513.23

(7) Hammajoda Aliyu N854,848.61

(13) John Titi N686,112.92

(8) Goni Usman N529,052.28

(9) Marafa Dahiru N508,709.94

(10) Bakari Danjuma W. N452,452.40

(11) Thomas Joel N683,516.44

(12) Ibrahim Ladi N703,906.18

(13) Bello Ngila N653,573.68

11. The Plaintiffs avers (sic) the cheques issued to them was not countermanded or the amount of money paid to them reduced by the Federal Government.

12. The Plaintiffs further avers (sic) that the amount of money paid to them could not be unilaterally tampered with since the plaintiffs were screened and their benefits computed in their presence before they were issued with cheques.

13. The Plaintiffs avers (sic) that the drawer and the payee, that is the Plaintiffs and the persons they are representing are all customers of the Defendant.

14. The Plaintiff therefore avers that the value or proceed (sic) of the cheques issued to them and the persons that they are representing have passed to the Defendant after they deposited their cheques.

15. The Plaintiffs avers (sic) that they instructed their solicitors to write and demand the recrediting (sic) of their accounts with the persons they are representing within 7 days from the date of the receipt of this letter. The letter is hereby pleaded,

16. The Plaintiffs avers that the Defendant replied the letter in a letter dated 4th of June, 2008 and another letter dated 10th of June, 2008 and promised to investigate the complaint of the plaintiffs and revert to them. The letters written by the Defendant in reply to our letter is hereby pleaded.”

In response to the Respondents pleadings, the Appellant, as Defendant before the trial Court, filed a Statement of Defence on 22-06-09 (at pages 44 – 48 of the printed Record of Appeal), as follows:

1. “The Defendant admit (sic) paragraphs 1, 2, 3, and 7 of the Plaintiff’s statement of claim.

2. The defendant denies paragraphs 4, 6, 6, 8, 10, 11, 12, 13, 14, 15 and 16 of the plaintiff’s statement of claim.

3. In response to paragraph 4 of the statement of claim, the defendant avers that the computation of the plaintiffs’ benefits were (sic) done before they were invited for screening.

4. The defendant further avers that the computation was wrongly done and was discovered during the screening exercise when others had already collected their benefits.

5. That the Federal College of Education Yola first computed the benefits where same was sent to the Auditor General of the Federation and Accountant General of the Federation as well as Bureau of Public Service Reform Office.

6. The defendant admit paragraph 6 of the statement of claim except that Abdullahi Haladu is not a customer to the defendant. It is further averred that Abdullahi Halidu is a customer of the defendant.

7. The defendant is not in the position to admit or deny paragraphs 5(a) and 6 of the statement of claim and therefore put the plaintiffs to the strictest proof thereof.

8. The defendant denies paragraph 8 of the statement of claim and put the plaintiffs to the strictest proof thereof.

9. The defendant further avers that the cheques alleged to have been given to them belong to the defendant bank and same could be countermanded by the defendant.

10. In answer to paragraph 9 of the statement of claim the defendant avers that the plaintiffs were aware of the wrong calculation made in the payment of their benefits as some of them had come to Abuja personally to be told of the wrong calculation. Plaintiff have (sic) not disclosed on why (sic) they are entitle (sic) to the revised benefit, that is to say they did not provide the court the correct calculation that would be arrived at as their benefits.

11. In response to paragraph 10 of the plaintiffs’ statement of claim some of the beneficiaries delegated one Diana Amos to go and find out the true position of the wrong calculation.

12. That Diana Amos is also a beneficiary of the package and one another met one Alhaji Liman a staff of the Federal Accountant General of the Federation Office in Abuja who was also a member at the screening committee at Kaduna and were explained of the matter (sic) but to no avail.

13. In further answer to paragraph 10 of the statement of claim the amount alleged to have been wrongly debited stands as an over payment made to the plaintiffs except for the following people where the claims are not accurate. These are the people and their over payment.

1. Aliyu Adamu N1,413,509.42

2. Hammaji Aliyu N485,848.61

3. Bakari Danjuma W N905,172.25

4. Thomas Joel N. N994,074.46

5. Ibrahim Ladi N9,005,765.72

6. Bello Ngada N1,094,213.22

14. The Defendant aver (sic) further that John Titi is not a plaintiff to this suit No. ADSY/51/09.

15. In answer to paragraph 11 of the statement of claim when the wrong payment was discovered the office of the Accountant General of the Federation wrote the defendant a stop order dated the 16th day of April 2008. The Bureau of Public Service Reform also issued out a general circular dated the 19th of April 2008 the said letter and circular are hereby pleaded.

16. That the defendant had also received a letter from the office of Accountant General of the Federation authorizing the defendant to pay the re-computed benefits. The said letter dated the 23rd of April 2008 is hereby pleaded.

17. The defendant shall at the hearing of this suit plead the severance package payment of the Federal College of Education Yola and the office of the Accountant General Severance Package payment of the Federal College of Education Yola containing the reversed amount and the amount due for recovery. Before the letters in paragraphs 12 and 13 above got to the defendant, the plaintiffs had started withdrawing the money.

18. The defendant in respond to paragraph 12 of the statement of claim avers that where there is a fraud in a contract the contract could not be relied upon as true. The calculation emanating from Federal College of Education Yola was passed upwards for ratification and were (sic) based on the wrong guidance of salary grade level and years of service. It is wrong to pay a junior staff cadre on grade level 10 instead of grade level 4 or 3,

19. The defendant further avers that the plaintiffs’ benefits were not computed there and then as averred in paragraph 12 of the statement of claim but were computed before same was taken before the screening committee. The cheques were prepared in respect of each beneficiary. The committee had to ask some question (sic) before verifying the true position of the beneficiaries and then a cheques (sic) is given to that beneficiary. It was through the question put to each beneficiary where the wrong computation was discovered.

20. In answer to paragraphs 13 and 14 of the statement of claim the defendant aver that the plaintiffs were customers of the defendant only at the screening and pay point when they were wrongfully paid. The plaintiffs are customers of the defendant when they are supposed to have deposited correct benefits or legal entitlements.

21. In response to paragraphs 15 and 16 of the plaintiffs’ claim the plaintiffs are put to the strictest proof thereof as same are denied by the defendant.” (Underlining supplied for emphasis)

Evidently, by paragraphs 1 and 6 of the Statement of Defence, the Appellant admitted paragraphs 1, 2, 3, 6 and 7 of the Statement of Claim. The rule as to pleadings is that, what is admitted is deemed proved. The Appellants therefore expressly admit that the Respondents were paid their severance benefits via cheques, which cheques they used in opening Savings Accounts in the Appellant Bank and lodged the cheques therein. The rule is that admissions made in pleadings need no further proof. Thus, an issue does not arise between parties in respect of matters expressly admitted on pleadings. See Akinlagun V Oshoboja (2006) 5 SCNJ 261; & Okposin V Assam (2005) 7 SCNJ 442. Pleadings are however not synonymous with evidence. They constitute mere notice of allegations a party relies on and not the evidence or proof of the facts contained therein. See Iwueke V Imo Broadcasting Corporation (2005) 9 – 10 SCNJ 35.

Thereafter, the Appellant goes on to tell its story wherein it avers that the severance benefits paid to the Respondents were wrongly computed and/or calculated by the Office of the Accountant General of the Federation, and thus since the cheques issued for the pleaded amounts belong to the Bank, the Appellant could “countermand” them. The word “countermand” in its ordinary sense means revoke, reverse, retract, annul or cancel. See paragraphs 9 & 10 of the Statement of Defence. Thus, to justify its action in countermanding the payment of the cheques, the Appellant further states in paragraphs 15 & 16 that it acted in compliance with a stop order issued by the Office of the Accountant General of the Federation, as well as a general circular issued by the Bureau of Public Service Reform, and another letter from the Office of the Accountant General authorizing it to pay certain recomputed benefits. All three (3) documents were pleaded as the basis of its action. The Appellant then went on to dispute the amount of severance benefits the Respondents were entitled to. This is the sum total of the Appellant’s defence before the lower Court.

Therefore, based on all the above, I find that the Appellant, having admitted in pleadings that the Respondents opened Saving Accounts with its Bank, deposited the cheques they individually received from the Office of the Accountant General of the Federation representing their severance benefits therein, and that, based on certain letters allegedly sent to it by certain public officers, the Appellant reversed the payment, it has essentially admitted the claim of the Respondents. The justification for their action, i.e. whether they were over-paid by the Office of the Accountant General, is another matter.

After pleadings had been duly exchanged before the trial Court, the Respondents adduced evidence through the PW1 and tendered exhibits marked Exhibits ADSY/51/2008 1- 41 in proof of their claim. The Appellant on its own part, failed to adduce any evidence at all in substantiation of its pleadings, despite the numerous adjournments and ample opportunity granted to it for that purpose. In point of fact, even the letters and circular purportedly authorising it to debit the accounts of the Respondents which were duly pleaded, were not placed before the trial Court in substantiation of its alleged defence. Not that it would have helped the Defendant much anyway. Indeed, it is significant that no mention has been made of this total default in defending the action in its Brief of argument before this Court. Clearly what this means is that, despite the averments in its pleadings in purported defence of the claim at the lower Court, the Appellant presented no actual or meaningful defence to the action. The law is since settled and this bears emphasis that averments in pleadings, being not supported by evidence, are deemed abandoned. In the absence of oral and/or documentary evidence, averments in pleadings are void. See Kaydee Ventures Ltd V The Hon. Minister of FCT (supra); Cameroon Airlines v Otutuizu (2011) 2 SCNJ 96; 7 The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v Eke-Spiff (2009) 2 SCNJ 119. Consequently, all the evidence adduced by the Respondents through the PW1 in proof of their claim stands unchallenged.

Now the PW1, Aishatu Dewa, was the sole witness for the plaintiffs. She testified in line with the Plaintiffs’ pleadings in proof of the claim. She gave evidence as to how, after the Respondents, after being duly screened by a Committee set up by the Federal Government of Nigeria through the Office of the Accountant General of the Federation, were issued severance pay slips and cheques for various amounts representing their severance benefits. All of the Severance Pay Slips and some copies of the cheques were admitted in evidence, (without any objection from the Appellant) and marked Exhibits ADSY/51/2008 1-13 and ADSY/51/2008 14-20 respectively. She testified that copies of the cheques belonging to seven (7) of the Respondents were either not made before they were deposited with the Appellant Bank or they were lost. However, the originals were in the custody of the Appellant because they were deposited with the Appellant Bank for crediting into their Savings Accounts. The Savings Accounts Pass books of all thirteen (13) Respondents are also in evidence as Exhibits ADSY/51/2008 21 – 33, while six (6) of the Deposit Slips used to pay in the cheques are Exhibits ADSY/51/2008 34-39. She testified positively that all thirteen Respondents paid in their cheques into their Savings Accounts with the Appellant. When, however, they all went to make some withdrawals from their accounts, they discovered to their amazement that, some of the monies they had paid into their account s via the cheques had been debited in varying degrees. She referred to paragraph 10 of the Plaintiffs’ Statement of Claim for the exact amounts that were debited from each of their accounts, bringing the total sum to N11,477,035.08. It is her evidence that when they inquired from the Appellant the reason for these deductions, they did not get a satisfactory answer and so they briefed their Solicitors. On their instructions, the Solicitor wrote to the Appellant a demand letter and the Appellant replied in writing that they would investigate the matter. Both letters are in evidence as Exhibits ADSY/51/2008 40 series and 41. However, up until the date of her testimony, the Appellant had not done anything about their plights. She therefore reiterated their claim in paragraphs 16(1)-(5) of the Statement of Claim and asked the trial Court to award them an additional N10,000.00 in general damages for breach of contract, detinue and conversion. Under cross-examination, PW1 clarified that one John Titi mentioned in the pleadings is not one of the Plaintiffs before the trial Court.

Upon an evaluation of the evidence comprising of the oral testimony of the PW1 in conjunction with the mass of documentary evidence, Exhibits ADSY/51/2008 1 – 41 before the trial Court, the learned trial Court came to the conclusion that the Respondents had proved their claims. It therefore awarded the Respondents all their claims as per their Statement of claim. In my judgment, the Respondents have met the standard and burden of proof. In the absence of any evidence from the Appellant, (as Defendant), to place on the other side of the evidence adduced by the Plaintiffs, the evidence from the Respondents, (as Plaintiffs), is preponderating.

On the assertion of the Appellant that the evidence of the PW1 amounts to documentary hearsay, I am of the considered view that whereas the decision of this Court in Mark V Abubakar (2009) 2 NWLR (Pt. 1124) 79 is good law, it is not applicable to this case as the facts are distinguishable and not on all fours. In the case referred to and relied upon by the Appellant, this Court found that the reports of certain police officers and INEC Officials who had earlier testified before the Election Tribunal and whose reports were subsequently tendered by some other person, amounted to documentary hearsay. The point made was that the documents which were allegedly made by the witnesses should have been tendered through them and not through another. In the instant case, the Severance Pay Slips, Savings Accounts Pass books, Cheques and Deposit Slips were properly tendered and admitted in evidence through the PW1, without any objection being raised by learned Counsel for the Appellant. It is now too late in the day for the Appellant who was properly represented by Counsel at all times during the trial to raise issues on documents in evidence which he willingly allowed to form a part of the Record and raised no objection to the tendering of same when he had all the opportunity in the world to do so.

Learned Counsel for the Appellant also made heavy weather of the award granted the Respondents by the trial Court, and sought to categorise them as an award of special and general damages. From the reliefs of the plaintiffs in their Statement of Claim at page 43 of the Record of Appeal, it is clear that the Plaintiffs claimed a refund or re-crediting of their accounts with the monies deducted there from by the Appellant. In the alternative, they asked the lower Court to award them the said sum in re-payment of the monies deducted from their accounts. It therefore seems to me that the argument of the learned Appellant’s Counsel is founded on an inaccurate or perhaps, a less accurate application of the term “special damages”. The contention of learned Counsel for the Appellant is that the Respondents did not establish the loss claimed and therefore are not entitled to the damages awarded, is erroneous.

The claim was for general damages, which loss is inferred by law from the breach. As was held by the Supreme Court per Karibi-Whyte, JSC in the case of Ijebu-Ode V Adedeji Balogun & Co (1991) 1 NWLR (Pt. 166) 136, learned Counsel has fallen into common confusion in claims of this nature of the difficulty in making a clear distinction between general and special damages. The common error is that the two are mutually exclusive. The assumption is that that which is not general damages must be special damages. However, the expressions are to denote both liability and proof. General damages are such as the court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of the reasonable man, while special damages are given in respect of any consequences reasonably and probably arising from the breach complained of. See also Badmus V Abegunde (1999) 11 NWLR (Pt. 627) 493.

The division between special damage and general damage is more appropriate in cases of tort than in cases of contract. General damages are such as the law will presume to be the direct natural or probable consequence of the act complained of. Special damages on the other hand are such as the law will not infer from the nature of the act. They do not follow in the ordinary course of events. They are exceptional in their character and therefore they must be claimed specially and proved strictly. In cases of contract, special or exceptional damages cannot be claimed unless such damages were within the contemplation of both parties at the time of the contract. See Sosan V HFP Engineering (Nig.) Ltd (supra). In Chanrai v Khawam (1965) 1 ALL NLR 182 @ 188, the Supreme Court observed on the categorisation of special and general damages in contract cases as follows:

“We would point out that the terms ‘special’ and ‘general’ damages are misleading and are likely to create confusion in the assessment of damages, especially when those terms are employed in connection with cases in which no such distinction is either necessary or desirable.”

General damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of and, in this case, damages resulting from the loss flowing naturally from the breach of contract and is incurred in due consequence of the breach. In cases of breach of contract, assessment of damages is calculated on the loss sustained by the injured party which loss was either within the contemplation of the parties or is an unavoidable consequence of the breach.

The award of damages is at the discretion of the trial Court based on the pleadings of the parties and the evidence adduced in support together with all the applicable legal principles.

One final word: It must be said that Counsel’s address, no matter how brilliant or elegantly couched, cannot take the place of pleadings and/or evidence. Cases are won on credible evidence and not on addresses of Counsel, and same does not serve as a substitute for evidence. See Ogunsanya V State (2011) 6 SCNJ 190; Salzgitter Stahl GMBH V Dosunmu Industries Ltd (supra); Counsel’s submission that the Respondents have not shown that they maintain any account with the Appellant is not pleaded. The case of the Appellant on pleadings is that monies were debited on an alleged instruction from the drawer of the Cheques, the Accountant General of the Federation, for inaccurate calculation. The Appellant’s Counsel cannot now in his address to the Court attempt to make a different case from the case he made in his pleadings.

The learned trial Judge was therefore right when he found for the Respondents in terms of their claims and I find no reason to disturb same. On a balance of probability, the Respondents indeed proved their claims. It is a no contest claim and I find no reason to interfere with same. I thus resolve issue one in favour of the Respondents.

With regard to issue two, learned Counsel for the Appellant challenges the Judgment of the trial Court in that it was not delivered within the statutory period provided by Section 294(1) & (5) of the 1999 Constitution. He contends that the failure to comply with this constitutional provision caused the learned trial Judge to lose his memory of the evidence before him at the time of writing his Judgment in that he did not analyze and evaluate the pieces of evidence before arriving at the conclusion he did. This, Counsel submits, has thus occasioned a miscarriage of justice. Counsel submits that no reason was given for the inability of the trial Court to justify the delay in delivering its Judgment outside the statutory period. He contends that whereas the final addresses were adopted on 08-07-11; the Judgment of the lower Court was not delivered until 04-04-12, a period of nine (9) months and four (4) days afterwards.

While agreeing that by the provision of subsection (5) of Section 294, the only way this Court will be satisfied that a miscarriage of justice has be occasioned is by placing sufficient facts before it, Counsel submits that the trial Court’s failure to assess, evaluate and apprehend the evidence and resolve the key issues involved in the trial of the suit goes to show the real possibility or probability of the trial Court forgetting the impressions created in its mind by the witness and the documents admitted in evidence. Counsel argues that the Judgment of the trial Court given nine (9) months after the close of evidence and final addresses without regard to the evidence has been shown by the Appellant to have occasioned a grievous miscarriage of justice. He contends that in the instant case, the trial Court did not only misapply, but also did not assess, evaluate and appreciate the evidence when he went ahead to grant all the reliefs claimed. Relying on Dibiamaka V Osakwe (1989) 3 NWLR (Pt.107) 101 @ 114, he called on the Court to intervene and annul the Judgment. Counsel submits that since an evaluation of the evidence was not carried out by the trial Court, it means that the trial Court lost its memory of the evidence, and he urged the Court to so hold.

Again, relying on Atoyebi v Governor of Oyo State (1994) 5 SCNJ 62 @ 83, learned Counsel submits that a mere engagement in the summary of evidence or a mere re-stating of the evidence of the parties and their witnesses without an appropriate judicial consideration or analysis thereof, such as giving reasons for the acceptance or the rejection of the various facts in issue comprised in such evidence does not constitute an evaluation of such evidence before the trial Court. Counsel further submits that where a trial Court fails to perform its function of the evaluation of the evidence called at a trial, the Court of Appeal is equally in the same vantage position as the trial Court to evaluate the evidence. He refers to Hamza V Kure (2010) 10 NWLR (Pt. 1203) 630 @ 653. Counsel contends that in the instant case, since it has been proved that the failure to evaluate the evidence by the trial Court was due to the delay which consequently affected the memory of the trial Judge in appreciating what transpired during the trial, it will not be proper to invite this Court to evaluate the evidence and make findings.

Learned Counsel thus submits that this is an appropriate case for this Court to hold that because f the delay, the trial Court lost its memory of what transpired during the trial of the suit. Counsel urged the Court to declare the Judgment of the trial Court a nullity as it has contravened Section 294(1) of the 1999 Constitution. He also urged the Court to hold that the Appellant has shown that a miscarriage of justice has been occasioned by the delay which affected the trial Court in writing and delivering its Judgment within the time stipulated by the Constitution, and Section 294(5) is not applicable to save the Judgment. He finally urged the Court to resolve this issue in favour of the Appellant.

On his part, learned Counsel for the Respondents from the onset conceded that the learned trial Judge did not deliver his Judgment within ninety (90) days as required by Section 294(1) of the Constitution. He however argues that a Judgment delivered outside the 90 days time limit is not ipso facto a nullity by virtue of the time lag unless it is shown that by so doing, it has occasioned a substantial miscarriage of justice. He relies on Bottling Co. Plc V Okejiminor (1998) 8 NWLR (Pt. 561) (incomplete citation supplied); Zobams Co. Nig. Ltd V Yola General Enterprises Ltd. (2007) 2 WRN 65 @ 73.

Counsel contends that the delay in delivering the Judgment within 90 days did not lead to the dimming or loss of memory of the learned trial Judge of his impression of the demeanour of the only witness who testified in the case. He contends that the learned trial Judge also considered the documentary evidence tendered and marked Exhibits ADSY/51/2008 1- 42 in arriving at its decision. Relying on Caroline Maersil V Nokoy Investment Ltd (2000) 7 NWLR (Pt. 666) 587 @ 604, Counsel submits that in order to establish that a Judgment delivered outside the three (3) months statutory period occasioned a miscarriage of justice, it is not enough to show that evidence was not properly evaluated. It must be shown that the facts were not properly remembered or even correctly summarized. He points out that the Appellant did not adduce any evidence at the hearing of the suit before the trial Court despite the ample opportunity given to it by the lower Court. In view of that therefore, Counsel submits that the Appellant cannot complain against the evaluation of evidence led before the trial Court and cannot also avail itself of the general or omnibus Ground of Appeal. For this, he places reliance on SCOA Nig. Plc V Muhammed (2004) 3 NWLR (Pt. 863) 20. He therefore submits that the omnibus Ground is incompetent and thus urged the Court to strike out Ground one of the Grounds of Appeal.

On the authority of Ohiseri V Yusuf (2004) 1 NWLR (Pt. 853) 548; & Tukur V Government Of Taraba State (1997) 6 NWLR (Pt. 510) 596, Counsel submits that a party who has not defended a suit before the trial Court cannot challenge the correctness of the Judgment at the appellate Court because it is implied that he is satisfied with the Judgment of the trial Court.

Learned Counsel thus submits that the trial Judge properly evaluated the evidence of the PW1, the only witness called before the trial Court and also considered the exhibits tendered before arriving at its decision. Counsel further submits that the Appellant had failed to prove that the delay in delivering the Judgment by the trial Court within the constitutional period of 90 days has occasioned a miscarriage of justice to the Appellant. He therefore urged the Court to also resolve issue two in favour of the Respondents and dismiss the Appeal on Grounds 4, 5 and 6.

Under this issue, the Appellant, in challenging the decision of the learned trial Judge for delivering same in contravention of section 294(1) of the 1989 Constitution; and secondly, in order to establish that this failure has occasioned a miscarriage of justice, contends that the learned trial Judge failed to properly analyse and evaluate the evidence adduced before the trial Court. On the issue of non-compliance with Section 294(1) which provides for the delivery of Judgment within 90 days after final addresses of Counsel, as has been admitted by both parties, subsection (5) clarifies that such a default is not necessarily fatal to the Judgment of the lower Court unless it is shown that a miscarriage of justice was occasioned thereby. It is not contested that the Judgment of the lower Court was indeed delivered outside of the period provided by law. The question is, has the Appellant shown that such has thereby occasioned a miscarriage of justice?

This almost exact situation arose in the case of Dibiamaka V Osakwe (1989) 3 NWLR ((Pt. 107) 101 where the delivery of Judgment was delayed by nine (9) months. There, the Supreme Court, per Oputa, JSC held inter alia that the emphasis should not be on the length of time simpliciter but on the effect it produced on the mind of the trial Judge. He states thus at pages 114-115:

“Justice in our Courts is justice according to law. And the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such o case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene, The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”

In the instant case, the trial Judge’s evaluation of the evidence, though unarguably brief, in the circumstances of the case, was on point and supported by the credible evidence adduced before the trial Court. Having struck out the entire Statement of defence of the Appellant on the basis that averments in pleadings not supported by evidence are deemed abandoned, he found that there was absolutely nothing to place on the other side of the imaginary scale against the avalanche of oral and documentary evidence adduced by the Respondents. Thus he found that the evidence of the PW1 in substantiation of the averments in the Plaintiffs/Respondents’ Statement of Claim stood unchallenged. This is the law as set down in a plethora of decided cases and his finding along those lines cannot be faulted.

For non-compliance with Section 294(1) to constitute a ground for setting aside the Judgment, the Appellant must prove that the failure has resulted in a miscarriage of justice to it. That the length of time that elapsed between the final addresses and the delivery of Judgment is such that the learned trial Judge could no longer remember vividly the facts of the case as testified to by the witnesses nor could he fully utilize the benefit of seeing the witnesses testify on oath and watching their demeanour. That this has led the trial Judge to be confused as to the respective cases of the parties, etc. These scenarios have not been shown to exist in this case. There is nothing on the face of the Judgment to show that it was not a well considered Judgment, or that at the time the learned trial Judge wrote it, he was not mentally alert or that his brain and mind were suffering from diminishing utility.

That being the case, I am unable to agree with the Appellant that the delay in delivering the Judgment affected the trial Judge’s perception, appreciation and evaluation of the evidence such that he lost the impressions made on him by the sole witness, PW1. Besides which the evidence was predominantly documentary. So the issue of losing his memory on the impressions created in his mind by the witness is minimal. In the instant case, I find that there is no fear of a possible miscarriage of justice to warrant the setting aside of the Judgment. The findings of the learned trial Judge were supported by available credible evidence. Why should this Court interfere? I find no reason to accede to the Appellant’s invitation to interfere. Again, I decide issue two against the Appellant.

In the final result, I find the Appeal entirely lacking in merit. It is accordingly dismissed. The Judgment of the High Court of Justice, Adamawa State delivered on 4th day of June, 2012 by Lawi, J., (of blessed memory), is upheld and affirmed. I award costs assessed at N50,000.00 to the Respondents.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading in advance the Judgment just delivered by my learned brother, J.H. Sankey, ICA, and I agree entirely with his reasoning and conclusion on the two issues raised which he has characteristically handled and resolved with the deftness of a thoroughbred judicial craftsman. I ordinarily would have had nothing to add to improve on this well researched and scripted Judgment and so I shall adopt same as mine in all ramifications.

However, I merely for the sake of it, would add on the 1st issue which is whether by the pleadings and evidence adduced before the trial Court, the Respondents have satisfied the legal requirements for the grant of all their reliefs sought before the trial Court; that where the Respondents in the Court below had elicited evidence through their sole witness who tendered an avalanche of documents in proof of their case but the Appellant failed, refused and/or neglected to call a single witness/evidence to shift the burden of proof which had been discharged by the Respondents on the balance of probabilities in line with Sections 131(1) and (2), 132, 133(1) and (2) and 134 of the Evidence Act 2011 (see Nwaru V. Okoye (2008) 18 NWLR (Pt.1118) 30 at 56 paras. C – D; Archibong V. Ita (2004) 2 NWLR (Pt. 858); Orji V. D.T. M. (Nig). Ltd. (2009) 18 NWLR (Pt. 1173) 467 at 489 – 490 paras. C – F; 493 pars. E – F. and Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 369 paras B – F), the learned trial Judge, without asking, ought to have entered Judgment for the Respondents as he rightly did.

In this wise, the law is settled on a plethora of authorities (see the case of Buraimoh V. Bamgbose (1989) 3 NWLR (Pt. 109) 352, per Nnaemaka- Agu, JSC); where a not too dissimilar situation occurred and the defence did not elicit any iota of evidence in rebuttal of an arm of the Plaintiff’s Claim on partition of the land in dispute nor were the witnesses for the Plaintiff cross-examined after they had testified and His Lordship took the view that: “It is of course settled that in such a case the onus of proof would be satisfied on a minimal proof because there is nothing on the other side of the scale.”

However, in the case of Bernard Okoebor V. Police Council & Anor. (2003) 12 NWLR (Pt. 834) 444; the erudite judicial icon, Niki Tobi, JSC; had cause to pronounce on the concept of minimal proof in our jurisprudence and took the view that the concept is not part of our adjectival law but rather, the basic position of the law is that, where a Defendant did not defend the action and the Plaintiff’s case remained unchallenged; the Plaintiff succeeds because in the circumstance, the trial Judge has no other case to deal with than the case stated by the Plaintiff in his Statement of Claim and in the oral and documentary evidence elicited by him.

In the above cited case, the learned emeritus Justice of the apex Court relied on the dicta of Ademola, CJF and Iguh, JSC, in Nwabuoku V. Ottih (1961) 2 SCNLR 232 (1961) ALL NLR 487 and Ayinke V. Lawal

(1994) 7 NWLR (Pt. 356) 263; in so holding. For instance, Ademola, CJF; commenting on the situation that the learned trial Judge found himself in our instant case, where the Appellants refused to lead evidence at all in support of their pleadings nor did they challenge the evidence of the sole witness for the Respondents as well as the documentary Exhibits tendered; posited that:

“It is clear from his Judgment that the learned trial Judge gave no attention whatsoever to the Appellant’s evidence before him, his evidence was not of any time rebutted by the Defendant who did not go to the witness box to give evidence. The evidence of the Appellant therefore stands un-contradicted. His evidence, given the terms of the transaction between him and the Respondent was in terms of the writ. In the absence of any evidence of rebuttal the Appellant was entitled to Judgment and I am of the view that the learned Judge’s duty was to have entered Judgment in his favour.”

Iguh, JSC, speaking in the same vein, in Ayinke V. Lawal (supra) at page 273 intoned inter alia:-

“The evidence was neither contradicted nor discredited by Defendants by way of Cross-examination and as such the case remained unchallenged. See Bello v. Eweka (1981) 1 S.C. 101 at 124. Where evidence given by a party to any proceedings was not challenged by the opposite party who like in the instant case, had the opportunity to do so, it is always open to the Court seised of the matter to act on such unchallenged evidence before it. See Isaac Omorogbe V. Daniel Lawani (1980) 3 – 4 S.C. 108 at 117; Odulaja V. Haddad (1973) 11 S.C. 357; Nigeria Maritime Services Ltd. V, Alhaji Bello Afolabi (1978) 2

SC 79 at 80 and Bashali V. Allied Commercial Exporters Ltd. (1961) ALL NLR 917, (1961) 2 SCNLR 322.”

From the foregoing authorities, the question of minimal proof did not even arise and my learned brother is therefore on very solid ground in so holding and citing the cases of Kaydee Ventures Ltd V. The Hon. Minister of FCT (supra), Cameroon Airlines V. Otutuizu (2011) 2 SCNJ 96, and the Administrator/Executors of the Estate of General Sani Abacha (Deceased) V. Eke-Spiff (2009) 2 SCNJ 119; which are very recent Judgments of the apex Court; that the Defendant/Appellant’s averments in its pleadings not being supported by evidence, are deemed abandoned and consequently the evidence of the Respondents remained unchallenged.

Judgment was therefore rightly entered in favour of the Respondents notwithstanding the legal acrobatics of the learned Counsel for the Appellants in this Court. This is because from the authorities earlier cited, the learned trial Judge was even magnanimous in engaging in evaluation of the only evidence before him ex-abundante cautela in spite of the absence of any rebuttal evidence and/or any evidence from the Appellants, before entering judgment in terms of their reliefs in the Statement of Claim. The Judgment of the learned trial Judge on this score is quite efficacious and I too cannot see my way through any reason why the Judgment should be disturbed.

On Issue Number 2 (Two) which questions whether the inability of the Court below to deliver its Judgment within three months from the date of final addresses of Counsel, has not affected the Judge’s memory of the evidence such that he had forgotten the nature of the evidence he evaluated before making his findings; there is no doubt that Section 294(1) of the Constitution provides that every Court established under the Constitution shall deliver its judgment in writing not later than ninety days after the conclusion of evidence and final addresses and shall furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery of the Judgment.

Ordinarily, going by the mandatory and compulsive provision of the above section of the 1999 Constitution of the Federal Republic of Nigeria, any judgment delivered in breach of the provision, ought to be declared on appeal as a nullity unless there are extenuating reasons which would warrant an Appeal Court like ours to hold otherwise. See Section 294(5) of the Constitution. As has been ably submitted by the learned Counsel for the Respondents, having conceded that the learned trial Judge did not deliver his Judgment within the 90 (ninety) days stipulated by the Constitution, the authorities of Nigeria Bottling Co. Plc. V. Okejiminnor (1998) 9 NWLR (Pt. 561) Zobans Co. Nig. Ltd V. Tofa General Enterprises, (2007) 2 WRN 65 at 73 and Section 294(5) of the Constitution; have buttressed the fact that such a Judgment is not ipso facto a nullity unless in so doing, it can be shown by the Appellants that by virtue of the delay in delivery, substantial miscarriage of justice has been occasioned them.

Again the Appellants also must show that the time lapse in the delivery of Judgment had led to dimming or loss of memory by the learned trial Judge of the facts of the case and his inability to reminisce the demeanour of the only witness who testified in the case. Where as in this case, there was only a witness and the evidence adduced was documentary (see Caroline Maersil V. Nokoy investment Ltd (2000) 7 NWLR (Pt 666) 587 at 604); the learned Counsel for the Appellant has not shown and in fact cannot complain that there was miscarriage of justice since his client did not adduce any evidence in rebuttal of the Respondents case as had earlier been held.

The learned Counsel for the Appellants in fact should not even complain of evaluation of evidence which entails placing two conflicting evidence on the imaginary scale of justice before ascribing probative value on the quality of the evidence adduced in arriving at a trial Court’s judgment. SCOA Nig. Ltd. V. Muhammed (2004) 3 NWLR (Pt.863) 20. I therefore agree completely with my Lord and on the authority of Diamaka V. Osakwe (1989) 3 NWLR (Pt 107) 101; per Oputa, JSC, that in this case; the Court properly evaluated the evidence adduced having struck out the pleadings of the Appellants for want of proof and giving judgment in favour of the Respondents as it has not been shown that the learned trial Judge’s delay in the delivery of the Judgment had blurred his vision and perception and indeed appreciation of the case presented before him. See Ariori & Ors. V. Elemo & Ors. (1983) 1 S.C. 13 at 24 per Obaseki, JSC.

The provisions of Section 294 of the Constitution are akin to those provisions on fair hearing. The pertinent question to ask is whether an un-officious by-stander or reasonable person who peruses the Record of proceedings of the lower trial Court would go away with the impression that the delay in the delivery of the Judgment outside the constitutional time line period provided for such delivery, has occasioned a miscarriage of justice on the Appellants? I dare answer the question in the negative. See Muhammed V. Kano N. A. (1968) 1 ALL NLR 424 at 426; Ezeala Nnajiofor & Ors. V. Linus Ukonu & Ors (1985) 2 NWLR 686 and Edet Edem Akpan V. The State (1986) 5 SC 186 at 214 – 215; per Oputa, JSC.

The Supreme Court had held that once the Court be it appellate or first instance has discharged its primary function of creating the necessary conducive atmosphere or environment for fair hearing as in this case, a party who out of negligence, indolence and/or share refusal to take advantage of such environment or atmosphere to be heard; he cannot turn round to castigate the Court for his failure. See Inakoju V. Adeleke (Ladoja’s case) (2007) 4 NWLR (Pt 1025) 473 at 621 – 622 paras. C-A per Tobi, JSC; Orugbo V. Una (2002) 16 NWLR (Pt. 792) 175 and Magaji V. Nig. Army (2008) 3 NCC 490.

It is for the above reasons and more elaborate reasons advanced by my learned brother in his lead Judgment that I endorse his Judgment and reiterate that it would rather wrought injustice on the Respondents to interfere with the impeccable judgment delivered by the learned trial Judge Lawi J. of blessed memory. I shall also refuse the invitation to so interfere but shall affirm same and dismiss this Appeal in its entirety for being unmeritorious. I shall also abide by all consequential orders made by my noble Lord including costs of N50,000.00 against the Appellant in favour of the Respondents.

ABUBAKAR ALKALI ABBA, J.C.A.: I agree.

Appearances

Mr. Y.N. AkirikwenFor Appellant

AND

Mr. A.B. BabakanoFor Respondent