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UNITY BANK PLC v. KWARA CHEMICAL COMPANY LIMITED & ANOR (2019)

UNITY BANK PLC v. KWARA CHEMICAL COMPANY LIMITED & ANOR

(2019)LCN/13773(CA)

In The Court of Appeal of Nigeria

On Monday, the 2nd day of September, 2019

CA/IL/130/2017

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

Between

UNITY BANK PLC – Appellant(s)

AND

1. KWARA CHEMICAL COMPANY LIMITED

2. ALHAJI BABS AREMU YAHAYA – Respondent(s)

RATIO

WHETHER OR NOT ORDINARY DELAY BETWEEN THE END OF THE TRIAL AND THE DELIVERY OF JUDGEMENT AMOUNTS TO A MISCARRIAGE OF JUSTICE

A delay or long interval between the receptions of evidence of witnesses and the delivery of judgment of a trial Court raises a strong presumption that the trial Court might not have made use of its advantage of seeing and observing the demeanor of the witnesses who testified before it. In appropriate cases, however, the presumption may be rebutted where the delay complained of did not occasion a miscarriage of justice. In such a case, the delay is regarded as inconsequential. On the other hand, the law is that if an ordinate delay between the end of the trial and the delivery of the judgment apparently and obviously affected the trial Court?s perception, apparently and evaluation of the evidence so that it can be seen easily that it lost the impression made on it by the witnesses, then, in such a case, there might be some fear of a possible miscarriage of justice, and only then will an appellate Court interfere. Thus, the emphasis is not on the length of time but on the effect it produces in the mind of the trial Court. In the instant case, although the trial Court did not deliver its judgment in compliance with Section 294 (1) of the 1999 Constitution (amended), the appellant failed to show that the delay occasioned a miscarriage of justice. See Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101; Emenimaya v. Okorji (1987) 3 NWLR (Pt. 59) 6. PER BDLIYA, J.C.A.

THE FUNDAMENTAL PRINCIPLE THAT THE COURT SHOULD NOT VISIT THE SIN OR OMISSION OF COUNSEL ON THE LITIGANT

Further more, it is a well known legal principle that a Court should not visit the sin or omission of Counsel on the litigant. If the Court forecloses the depositions of the Defendants witnesses, the Defendants case would suffer an outright unmeritorious defeat since they would have been incapacitated to present their own side of the coin of the case instituted against them. See the case of Ayua Vs Gbaka (1997)7 NWLR (Pt. 514) 659 at 671 and 672. PER BDLIYA, J.C.A.

DEFINITION OF A PERVERSE DECISION

In Nikagbatse v. Opuye (2010) 14 NWLR (Pt. 1213) P. 50 @ 86, it has been enunciated that a decision is said to be perverse when it fails to take into cognizance the facts or evidence led before the Court. In other words, a decision is perverse where the Court arrived at such a decision by taking into account matters which it ought not to have taken into account or where the Court shuts its eyes to the obvious, thereby, persisting in error, different from what is reasonable or required. See Atolagbe v. shorun (1985) 1 NWLR (Pt. 2 360; Egba v. Appah (2005) 10 NWLR (Pt. 934) 464; Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427.

A perverse decision of a Court arises in so many ways, such as when the Court;

(a) Ignored the facts or evidence; or

(b) Misconceived the thrust of the case presented; or

(c) took irrelevant matters into account which substantially formed the basis of its decision;

(d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or

(e) Committed various errors that faulted the case beyond redemption. See F. K. Construction Ltd v. NDIC (2013) 13 NWLR (Pt. 1371) P. 390 @ 421.

In determining whether a decision or finding of facts by a Court is perverse or not, certain factors are to be given due consideration as enumerated in the case of Ojeleye v. Reg. T.O.J.M.C & SCN (2008) 15 NWLR (Pt. 1111) page 520 @ 534-535, which are:

(a) Facts on the basis of which the respondent based its claim;

(b) Challenge given to those facts by the appellant; and

?(c) Trial Court’s assessment of the facts of both sides and its eventual conclusions.

If the Court’s decision does not flow from the facts and the evidence before it, or the reasons advanced for the decision are intenable, even where the issue revolves around the credibility of the witnesses whom the trial Court had the privilege of seeing, an appellate Court will interfere, make appropriate findings, evaluate the evidences, and arrived at a just and correct decision in the interest of justice. PER BDLIYA, J.C.A.

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Kwara State, (hereinafter referred to as the lower Court) in suit No. KWS/128/2019, delivered on the 15th day of May, 2017, presided over by HALIMA SALEEMAN, J. The 1st respondent, a limited liability Company, was a customer of First Interstate Bank which was merged with other Banks in 2006 to form the Unity Bank (the appellant) who inherited all the assets and liabilities of the defunct First Interstate Bank. The appellant claimed that the 1st respondent was owing it the sum of N77,684,942.25K, which was disputed. The respondents asserted that only the sum of N9,048,137.32K was due for payment to the appellant. The respondents then instituted an action against the appellant seeking a perpetual injunction order to restrain the appellant from taking over the control of its properties. The appellant in reaction to the suit instituted by the 1st respondent filed a statement of defence together with a Counter-claim. At this stage, the appellant applied for and obtained an order joining Alhaji Babs Aremu Yahaya as

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the 2nd respondent in the counter-claim. The respondents did not prosecute the suit filed by them, hence it was struck out on the 7th of November, 2011. The Counter-claim action was transferred to the lower Court for adjudication.

On the 27th of May, 2014, the lower Court commenced adjudication of the Counter-claim whereby a witness testified, thereafter, the appellant closed its case. The matter was adjourned for defence to the 16th of May, 2015. The 2nd respondent testified after adopting his statement on oath. The lower Court delivered judgment on the 15th day of May, 2017, dismissing the counter-claim for being without merit. Aggrieved by the dismissal of the counter-claim, the appellant filed Notice of appeal challenging same. The appellant?s brief of argument was filed on the 14th of December, 2018, wherein, on page 2 thereof, five(5) Issues for determination have been culled from the grounds of appeal. The Issues for determination are as follows:

ISSUES FOR DETERMINATION

1. Whether the lower Court rightly rejected admitting the Respondent?s letters dated 6/10/2008 and 30/12/2008 from evidence? (Ground 1)

2. Whether

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the lower Court rightly granted the Respondents? motion to call additional witnesses after the Appellant had closed its case? (Ground 2 and 3).

3. Whether the appellant proved that it granted Import Finance facility of N30 million to the Respondents? (Ground 7 and 8).

4. Whether the Appellant proved that the Respondents are indebted to the Appellant on the facilities granted to them? (Grounds 4 and 5).

5. Whether delivering the judgment more than three (3) months after adoption of final addresses by counsel occasioned grave miscarriage of justice due to the fact that the lower Court had lost the trend of the case?

The respondents? brief of argument was filed on the 22nd of May, 2019, out of time, which was deemed properly filed on the 27th of May, 2015, by leave of Court. The Issues for determination contained on page 2 of the appellant?s brief of argument have been adopted on page 4 of the respondents? brief of argument. A Reply brief of argument was filed on the 6th of June, 2019. In the determination of the appeal, the five (5) Issues contained in the appellant?s brief of argument which have been adopted

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by the respondents are to be resolved in the following order 5, 1, 2, 3 and 4.

ISSUE (5)

Whether the delivery of the judgment on the 15th day of May, 2017, after the expiration of the ninety (90) days provided by Section 294 (1) and (5) of the 1999 Constitution (Altered), have occasioned a miscarriage of justice to the appellant? On this Issue, Toyin Oladipo Esq, who settled the appellant?s brief of argument, pointed out that on the 13th of October, 2016, learned counsel to the parties adopted their respective final addresses, and judgment was reserved to the 20th of December, 2016. However, on the said date i.e 20/12/16, the Court ordered learned counsel to address it on various forms of Accounts which the witnesses referred to in course of the proceedings, as could be found in page 296 of the record of appeal. The matter was then adjourned to 9th of January, 2017 for further addresses of counsel. Judgment was then reserved to the 28th of March, 2017. On the aforesaid date, the judgment was further adjourned to the 4th of April, 2017. On the said date, learned counsel for were ordered to re-adopt the written addresses. The Court them

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reserved judgment to the 15th of May, 2017. It is learned counsel?s contention that the gap or the time between the first adoption of final written addresses i.e on the 7th of October, 2016, to date of judgment, which is 15th of May, 2017, is 7 months. In view of the foregoing, learned counsel did contend that the learned judge of the lower Court would have lost trend of the proceedings including the evidence adduced before it, which probably lend to the confusion in the assessment and evaluation of the evidence of the only two (2) witnesses who testified at the trial. In conclusion, learned counsel adumbrated that the delivery of the judgment after the adoption of written addresses by learned counsel, 7 months later, was wrongful, which occasioned a miscarriage of justice to the appellant. It has been urged that issue 5 be resolved in favour of the appellant.

Magaji Oba Abdulkadir Esq, of learned counsel to the respondents, did contend that mere delay to deliver judgment within the prescribed period cannot be a ground to render same a nullity, unless it has been shown or established by the complainant he suffered a miscarriage of justice by reason

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thereof. Learned counsel further contended that the appellant has not shown how or in what manner the delay in the delivery of the judgment, occasioned a miscarriage of justice to it. It has been further contended that, the complaint of the appellant on the delivery of the judgment after the expiration of the specified period, and its resultant effect on it, is a mere conjecture or speculations. Learned counsel did contend that the complaint of the appellant on the delay in the delivery of the judgment by the lower Court has no effect on same. Whether the delivery of the judgment by the lower Court on the 15th of May 2017, 7 months after the adoption of written addresses, occasioned a miscarriage of justice to the appellant, it is imperative to examine the provisions of Section 294 (1) and (5) of the 1999 Constitution (Amended). The said section provides thus:

?(1) Every Court established under this constitution shall deliver its decision in writing not later that ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days

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of the delivery thereof.

(5) The decision of a Court shall not be set aside or treated a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.?

The intendment of the law makers in providing for the provisions of Section 294 (1) and (5) of the 1999 Constitution (Altered) can easily be comprehended and appreciated in the interpretation and application of the said provisions by the pronouncements/decisions of the Superior Courts, in several cases. For instance in the case of Gagarau v. Pashiri (2006) 1 NWLR (Pt. 969) P. 531 @ 535 ? 536-537, it had been enunciated that provisions of Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (amended) was to curb the excesses of inordinately long adjournments before delivery of judgments by Courts. In other words, it was intended to curb the excesses of long adjournments after the conclusion of evidence and final addresses by counsel. Any judgment of

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a Court established under the Constitution which is delivered outside the mandatory period of 90 days after the conclusion of evidence and final addresses is in contravention of the provisions of Section 294 (1) of the 1999 Constitution (amended).

?A delay or long interval between the receptions of evidence of witnesses and the delivery of judgment of a trial Court raises a strong presumption that the trial Court might not have made use of its advantage of seeing and observing the demeanor of the witnesses who testified before it. In appropriate cases, however, the presumption may be rebutted where the delay complained of did not occasion a miscarriage of justice. In such a case, the delay is regarded as inconsequential. On the other hand, the law is that if an ordinate delay between the end of the trial and the delivery of the judgment apparently and obviously affected the trial Court?s perception, apparently and evaluation of the evidence so that it can be seen easily that it lost the impression made on it by the witnesses, then, in such a case, there might be some fear of a possible miscarriage of justice, and only then will an appellate Court

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interfere. Thus, the emphasis is not on the length of time but on the effect it produces in the mind of the trial Court. In the instant case, although the trial Court did not deliver its judgment in compliance with Section 294 (1) of the 1999 Constitution (amended), the appellant failed to show that the delay occasioned a miscarriage of justice. See Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101; Emenimaya v. Okorji (1987) 3 NWLR (Pt. 59) 6. I am therefore of the view that the provisions of sub-section (5) of the Section 294 of the aforesaid Constitution, would apply, and the judgment delivered by the lower Court on the 15th day of May, 2017, cannot be declared a nullity.

In view of the foregoing adumbration, I am of the view that the failure of the lower Court to deliver its judgment within the prescribed period nor any other error or omissions by the learned trial judge has not been shown to have occasioned a miscarriage of justice to the appellant. Issue 5 is resolved against the appellant.

ISSUE I

Whether the lower Court rightly rejected the respondents? letters dated 6/10/2008 and 30/12/2008, when same were tendered to be

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admitted in evidence by appellant? Oladipo Esq., of learned counsel to the appellant contended that it was wrong and ill-founded for the lower Court to have rejected the documents dated 6/10/2008 and 30/12/2008, having been pleaded and no issues been joined between the parties as to whether same are admissible in evidence or not. It has been further contended that the appellant?s counsel did not respond to the objection to the admissibility of the documents at the time the lower Court held that same were inadmissible and rejected same ordering that they be marked as tendered but rejected. Learned counsel contended that it is only when a party has responded to any objection raised to the admissibility of a document which has been tendered by the other party, that the Court can properly decide whether to reject it or admit same in evidence. That without allowing the other party to respond to the objection to the admissibility of any evidence, the Court cannot take a decision on same as to whether to sustain the objection or not. The case of Oguntayo vs. Adelaja (2009) All FWLRPt. 495 P. 1626 @ 1650, was cited and relied on to buttress the contentions

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supra. Learned counsel further submitted that, at the stage the lower Court rejected the documents and ordered same to be so marked, learned counsel to the appellant did not respondent thereto. In view of the foregoing, learned counsel submitted, the order of the lower Court rejecting the documents in evidence, was premature and wrongful. The Court has been urged to resolve issue 1 in favour of the appellant.

M.O. Abdulkadir Esq, of learned counsel to the respondent, submitted that any objection to the admission of evidence, oral or documentation is at the time when it is tendered, that is, before its admission as enunciated in the case of Union Bank of Nig Ltd vs Prof. A.O. Ozigi (1994) 3 NWLR Pt. 333 P.385. It is learned counsel?s further contention that the appellant?s counsel responded to the objection raised to the admissibility of the documents sought to be admitted in evidence, including the documents dated 6/10/2008 and 30/12/2008. That by responding to the objection raised by the respondents? counsel, issues have been joined as to whether the document were admissible or not. At this stage, learned counsel contended, none of the

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documents sought to be tendered could have been withdrawn. That the lower court was right when it ruled that the documents dated 6/10/2008 and 30/12/2008 were inadmissible and marked same as rejected.

In his further response to the submissions of learned counsel to respondent, appellant?s counsel expatiated that he applied to withdraw the 2 documents dated 6/10/2008 and 30/12/2008 at the appropriate time in course of his response to the objection raised by respondent?s counsel. That the documents were not tendered correctively as submitted by the learned counsel to the respondent. Learned counsel did submit that he applied to withdraw the 2 documents when there was objection to their admissibility in evidence, having dealt with the other documents.

Whether the learned judge of the lower Court was right when he refused to allow the learned counsel to the appellant to withdraw the 2 documents dated 6/10/2008 and 30/12/2008 in course of responding to the objection raised to their admissibility, I think it is pertinent to have a recourse to the proceedings of the lower Court, at this juncture. The proceedings of the lower Court in the

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counter-claim began on the 27th day of May 2014, when Samuel Olalekan Adebayo testified as the sole witness for the counter-claimant, now the appellant. The evidence of the witness was recorded by the lower Court beginning on page 288 of the record to page 289. Part of the proceedings are as follows: –

“The 1st defendant entered into a debenture grant granted by the defendant. This is copy of the debenture letters just shown to me.

Counter claimant: I seek to tender all the 17 documents identified by the witness as evidence in this case. They are

Offer letter dated 16/5/03 for N30 million.

Letter of 16/5/03 for N5 million.

Letter dated 26/7/04 for N10 million.

Letter titled restructuring of facilities of 16/1/06.

Letter of 4/7/07 titled offer letter to temporary overdraft facilities.

Unity bank plc, dated 25/3/09, 2/06/09, 13/7/09, 15/9/08, 21/10/08, 19/11/08, 2/6/09.

Letter from the defendant to counter claimant date did 6/10/08 and 30/12/08. (Underlining mine for emphasis)

Deed of Debenture dated 27/9/05 and deed of guarantee dated 5/1/09

Letter dated 23/2/06 in respect of excess over limit on

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import finance facility.

Defendant counsel: We object to the admissibility of the document on the ground that.?

Learned counsel to the respondents then made submissions to justify his objection to the admission of the documents tendered by the appellant?s counsel. See pages 229 to 230 of the record of appeal. Learned counsel to the appellant while responding to the submissions of learned counsel to the respondent, applied to withdraw the 2 documents he had tendered before the Court. The proceedings of the lower Court as recorded, are thus:-

?At this juncture I want to withdraw the two letters from 1st defendant dated 6/10/2008 and 30/12/2008. I pray the Court to allow me to withdraw the 2 documents and urged the Court to admit the remaining.

Defendant Counsel: I object to the withdrawal of the two documents. He has tendered them and argument has been canvassed. The Court has taken argument on it and he was in Court and he made same submissions and it is at the tail end of the submission that he sought to withdraw the document. (Underlining mine for emphasis)

Defendant counsel: Order 28 rule 3 actually support our

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position. We pray the discountenance with submission.

27/5/14

Court: Case is adjourned to 1/7/14 for ruling and continuation of hearing.

On the 1st of July 2014, the learned judge of the lower Court, in reaching a decision on whether the 2 documents were properly withdrawn by the learned counsel or not, found and held on pages 239-240 of the record of appeal thus:

“I now come to the last two documents which are demand letters dated 6/10/2008 and 30/12/2008. Counter claimant Counsel applied to withdraw the two documents. Defendant Counsel raised serious objection to the application on the premise. That the counter claimant Counsel could not at that stage sought to withdraw the documents because he had canvassed arguments and made submission on those documents thereby replying to the Defendant’s objection and joining issue on those documents.

The position of law is that whenever an objection is raised by the opposing party against a document sought to be tendered, the law enjoins the party seeking to tender the document to apply to withdraw the document immediately the objection is raised by the opposing party. The party

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seeking to tender can no longer withdraw the document if he has replied to the objection raised by the opposing party. See the case of Otunba Adesesan Oguntayo Vs Prince Fatai Adelaja and ors (2009) 15 NWLR (pt ) pg 150 @173. (Underlining mine for emphasis)

The counter claimant had earlier joined issue with the Defendant in respect of these two documents when the Defendant Counsel objected to all the documents on ground of not being front loaded and pleaded. I agree entirely with the learned Counsel to the Defendant in the counter claim that it was too late in the day for the counter claimant to seek to withdraw the two documents in question. The objection of the defendant Counsel to the counter claim in this regard is sustained. The two documents which are letters of demand dated 6/10/2008 both written by Kwara Chemical Company Ltd Branch Manager of Unity Plc, Davies Street Marina, Lagos and also for the attention of Mr. Samuel Adebiyi Profit Centre Manager shall be marked tendered but rejected.? (Underlining mine for emphasis)

?

I am in agreement with the learned counsel to the appellant when he adumbrated in paragraph 4.08 of the

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appellant?s brief of argument thus:

? I urge the Court to note that after Appellant?s counsel applied to tender the documents at page 229 of the record, the Respondents? counsel took the floor and made submissions against their admission from page 229-230. Appellant?s counsel did not say a word about the two letter dated 6/10/2008 and 30/12/2008 before he applied to withdraw them. It is not correct therefore to hold as the lower Court did that appellant?s counsel joined issues with the respondent on them.?

The learned counsel to the appellant responded to the submissions of learned counsel to the respondents on the objection to the admissibility of the documents dated 6/10/2008 and 30/12/2008. Learned counsel said nothing on the 2 documents dated 6/10/2008 and 30/12/2008 whereas the learned counsel to the respondents in his submission to their admission in evidence submitted that:

?The two letters from defendant to the counter claimant dated 6/10/2008 and 30/12/2008 have their original with the counter claimant because they were addressed to the bank manager. They cannot seek to tender the

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photocopy and no explanation of the reason to tender the photocopies.?

The case cited and relied on by learned counsel to the appellant on page 4 of the appellant?s brief of argument is distinguishable from the extant case on appeal before this Court. In Oguntayo vs Adelaja (2009) All FWLR Pt. 495, P.1626 @ 1650, the plaintiff counsel did not respond or made submissions on the objection to the admissibility of the evidence sought to be admitted. It was rightly held that the Court ought to have called upon the learned counsel to respond to the submissions made in objecting to the admissibility of the evidence or in the alternative, allow the withdrawal of the witness and or the evidence sought to be admitted. In the extant case learned counsel to the appellant made submissions on the objection to the admissibility of the documents dated 6/10/2008 and 30/12/2008, as pointed out supra. Having responded to the submissions of the opposing learned counsel, the application to withdraw the two (2) documents dated 6/10/2008 and 30/12/2008, was rightly rejected by the learned judge of the lower Court. Issue 1 is resolved against the appellant.

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ISSUE 2

Whether the lower Court rightly granted the respondents? application to call additional witnesses after the closure of the appellant?s case? Toyin Oladipo Esq, of learned counsel, submitted that the respondents did not indicate they were calling witnesses to adduce evidence in defence of the counter-claim, therefore, calling additional witnesses cannot be an issue at all. It is learned counsel?s further contention that the application for leave to call additional witnesses after the close of the appellant?s case, is overreaching or an ambush which the Courts frown at in the litigation process. Furthermore, it is learned counsel?s submission that without the existence of a list of witnesses filed before the commencement of the hearing, there is nothing on which calling of additional witnesses could stand, for one cannot put something on nothing, it will collapse. The principles of law enunciated in the case of UAC vs Macfoy (1961) 3 WLR P.14 was cited and relied on to buttress the submission supra.

On the reliance on Order 39 Rule 12 of Kwara State High Court (Civil Procedure) Rules to grant the application of

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the respondents, learned counsel pointed that, notwithstanding, no sufficient materials have been placed before it to warrant the granting of same, more so having regard to the stage of the proceedings at which the application was made, that is after the appellant closed her case. On the contention that the learned judge of the lower Court exercised his judicial discretion in granting the application to call additional witnesses, learned counsel did submit that, in law, exercise of discretion must be judicial and judicious taking in account the interest of justice to both parties in dispute. Concluding, learned counsel submitted that the granting of the application by the lower Court cannot be proper exercise of discretion. That it is one sided, to the detriment of the appellant in that, it is an ambush, overreaching and outwitting the appellant. This Court has been urged to resolve issue 2 in favour of the appellant.

?

M. O. Abdulkadir Esq, did contend that the appellant ought to have known that the respondents would defend the counter-claim having filed a defence thereto. He went on to submit that, in view of the foregoing adumbration, the contention of

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the appellant that he was ambushed or overreached by the application for leave to call additional witnesses, can not be correct. On the exercise of the lower Court?s discretion, in granting the application, it is learned counsel?s contention that having properly exercised its discretion, an appellate Court should not interfere, unless there exist good and substantial reasons to do so. In conclusion, learned counsel submitted that the learned judge relied on Order 39 rule 12 of the Rules of the lower Court in granting the application having exercise its discretion judicially and judiciously in the overall interest of justice. Learned counsel did urge that issue 2 be resolved against the appellant.

Responding to the arguments canvassed in the respondents? brief of argument, learned counsel to the appellant submitted that the lower Court did not exercise its discretion judicially and judiciously because the granting of the application was detrimental to the appellant. That the granting of the application after the appellant had closed her case can not be just and fair.

?

The motion on notice seeking leave to call additional witnesses can

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be located on pages 169 to 170 of the printed record of appeal. The grounds upon which the application was predicated as thus:

GROUNDS OF THE APPLICATION

1. ?The leave of Court is required before same can be filed

2. The Justice of this suit demands for calling additional witnesses.

3. The calling of additional witness is to enable this Honourable Court to do justice to this matter.

4. The Counter claimant/Respondent will not in any way be prejudice if this application is granted.?

The affidavit in support of the application are on pages 171 to 172 of the record of appeal. Paragraphs 3 to 12 thereof are germane to the consideration whether the lower Court was right when it granted the application or not. The said paragraphs are thus:

3. ?That I am aware that the Counter-claimant/Respondent has closed their case.

4. That I know as a fact that it is tile turn of the Defendants/Applicants to open their defence.

5. That I know as a fact, that during the chamber briefing with the Defendant/Applicants it was discovered that there is a need to call additional witness in this suit.

6. That during

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the cause of the briefing further facts arose which have not been Jut before this Honourable Court.

7. That I know as fact that the Statement on oath of the 2nd Defendant/Applicant: Alhaji Bab Aremu Yahaya (the Chairman) and Mr. A. A. Olaosebikan (the Accountant) they are the additional witnesses to be called and their statements on oath are hereby attached.

8. That I know as a fact with reference to the preceding paragraph there is need to file the statement on oath of the additional witnesses and the list of additional witnesses before this Court.

9. That I know as a fact that the calling of addition witness in this suit will enable this Honourable Court to do justice in this suit.

10. That I know as a fact that unless and until certain facts are brought before this Honourable Court the suit of the Defendants/Applicants will not be determined on its merit.

11. That I know as a fact that this Honourable Court has an unfettered power to grant this application in the interest of justice.

12. That I know as a fact that the Counter- claimant/Respondent will not in any way be prejudiced by granting this application.?

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The appellant, in opposing the granting of the application filed a 25 paragraphed counter-affidavit. The relevant paragraphs are 9 to 14 and 18 to 24 thereof: The said paragraphs are reproduced here-under:

?9. That I know that the statement of defence to counter claim deemed filed by the Court on the said 1/8/2013 was not accompanied by any witness statement on oath.

10. That I know that the counter claimant took that omission as tactical on the Applicants’ part and as indication that it will not call any witness.

11. That I know that it was based on the interpretation of the Applicants’ intention that the Respondent has not filed any process to comment on the filed statement of defence to counter claim.

12. That I know that the counter claimant has closed its case after calling its only witness.

13. That I know that the counter claimant’s witness, Mr. Samuel Adebayo retired from ‘the service of the counter claimant during the merger of Bank of the North Limited with other banks.

14. That I know that it took a lot of persuasion for the witness to agree to come to Court on the last day of his cross examination, i.e

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16/5/2015.?

Paragraphs 18 to 24 of the aforesaid counter- affidavit are as follows:

18. ?That during the whole time the bank’s witness was testifying, the Applicants did not have any witness lined up for this trial. That the Applicants cannot now be praying for leave to call additional witness.

19. That I know that the Applicants, from the time I they filed their statement of defence to counter claim on 1/8/2013 have had more than sufficient time to file their witness statements on oath but failed to do so as a, ploy to overreach the counter claimant.

20 That I know that the counter claimant closed her case on 16/5/2015.

21 That I know that it will not be possible for the counter claimant to compel the attendance of its witness, Mr. Samuel Adebayo to come to Court to rebut the evidence now sought to be given by the defendants to counter claim.

22. That I know that it will entail unnecessary hardship and difficulty in the preparation of amendment to the counter claim and preparation of witness statement on oath for the only witness of the counter claimant if the Applicants are allowed to file witness statements and

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testify at this stage.

23. That I know that because of banks’ mergers and retirement of their staff, none of the present staff of the counter claimant is even familiar with the facts of this case.

24. That I know that such an application for leave to call witnesses after the counter claimant has closed its case will entail justice to the counter claimant if same is granted?.

Order 39 Rule 12 of the Kwara State High Court (Civil Procedure) Rules, 2005, provides as follows: –

?12(1) A party who desires to call any witness not being a witness whose deposition on oath accompanied his pleading shall apply to the Judge for leave to call such witness.

12(2) An application for leave under sub-rule (1) shall be accompanied by the deposition on oath of such witness?

The learned judge of the lower Court, after considering the depositions contained in the affidavit, Counter-affidavit and the provisions of Order 39 Rule 12 of the Kwara State High Court (Civil Procedure) Rules 2005, in granting the application of the respondents to call 2 additional witnesses reasoned as follows on pages 267 to 26 of the record of

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appeal.

?In the present circumstance the depositions of the two intended witnesses did not accompany the already filed statement of defence of the Defendant to the counter Claimant/respondent. The observation was raised by the counter claimant Counsel. The failure of the Defendant to the counter claimant/applicant Counsel to attach the witnesses depositions to the statement of defence already filed cannot overreach the counter claimant. The deposition of the intended witnesses did not go outside the pleading of the Defendant to the counter-claimant/Applicant. And the counter claimant Counsel did not say so. The Defendant in the counter claim is liberty to call a host of witnesses so far as they operate within the confines of the pleading.

Further more, it is a well known legal principle that a Court should not visit the sin or omission of Counsel on the litigant. If the Court forecloses the depositions of the Defendants witnesses, the Defendants case would suffer an outright unmeritorious defeat since they would have been incapacitated to present their own side of the coin of the case instituted against them. See the case of Ayua Vs Gbaka

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(1997)7 NWLR (Pt. 514) 659 at 671 and 672. To shut out the Defendants from putting their case across on the basis of not front-loading the deposition of witnesses will also amount to a denial of fair hearing. It is the primary duty of this Court, any other Court to see that substantial justice is attained in any given situation by being fair to all the parties and the rules of Court should be interpreted and maneuvered to achieve the desired legal result?

I totally agree with the learned judge of the lower Court when he granted the application of the respondents bearing in mind the adumbration of the Apex Court on similar application in the case of Nishizawa vs. Jethwani (1984) 12 S.C 234 @ 287, wherein it was held that:

?Rules of Court are made in aid of the Fundamental objective of the Courts to do justice and consequently in cases where strict adherence to such rules could clash with this fundamental objective, the Court will adopt a liberal interpretation of those rules.?

See also FSB Int. Bank vs. Imano (Nig) Ltd (2000) 11 NWLR Pt. 679 P. 620.

On the materials placed before the lower Court, that is the affidavit

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in support of the application; the Counter-affidavit and the exhibits annexed thereto, it is not in dispute that the respondents filed statement of defence to the Counter-claim. The depositions of the witnesses to be called, as could be found in the annexure to the application, are within pleaded facts contained in the statement of defence. The issue of being ambushed or over-reached by the respondents? application cannot therefore arise. In view of the foregoing, it is in the interest of justice that the application of the respondents was granted by the lower Court.

That a Court of law is to endeavor to do substantial justice to all parties to the dispute when interpreting and applying the Rules of Court had been emphasized by this Court in the case of Pastor T.F. Olaniyan & Ors vs. Mr. F.O. Oyewole & Ors (2008) 5 NWLR Pt. 1079 P. 114 @ 139, wherein, Ogunwumiju J.C.A, propounded that:

?The rules of practice and procedure aimed at prescribing the procedure for determination and enforcement of rights and obligations which aid legal principles. Their compliance should not be aimed at defeating the ends of justice and foreclosing

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fair trial of disputes. Thus, the Court should not be enslaved to the rules or interpret them to cause injustice by shutting out the claimant from prosecuting and the Defendant from defending the suit?

The learned judge was therefore perfectly right when he came to the decision as recorded on pages 269 ? 230 of the printed record of appeal that:

?All I have been saying is that it will be inequitable to shut out or deny the defendants to file their witnesses depositions or written statement on oath.?

I agree with the learned judge. Consequently, I resolve Issue 2 against the appellant.

ISSUE 3 and 4

Whether the appellant proved that it granted Import Finance Facility of N30 million to the 1st Respondent?

Toyin Oladipo Esq., who settled the appellant?s brief of argue asserted that the sum of N30 million was granted to the respondents in 2003 when the defunct First Inter State Bank was in existence. Learned counsel referred to the averments contained in paragraphs 7, 9, 14 and 17 of the Amended statement of claim and paragraph 2 of the Amended statement on oath as well as Exhibit P1, to reinforce the

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contention supra. Learned counsel further submitted that the 2nd respondent, under cross-examination did admit that the sum of N30 million was granted to the 1st respondent as Import Finance Facility by the defunct First Inter State Bank Plc as evidenced by Exhibit; P.3. Furthermore, paragraph 6 of the statement on oath of the 2nd respondent reinforced the assertion that the said Facility was utilized by the 1st respondent. Counsel further argued that, having admitted that there was grant of the N30 million as financed Facility, and utilized same, the lower Court was wrong in its decision that same have not been proved by credible evidence.

In his further submission, learned counsel referred to paragraphs, 8, 9, 11 and 12 of the Amended statement of claim, which have been confirmed by pages 1 and 2 of the Amended statement on oath read together with Exhibit P. 17. Having not contested Exhibit P. 17, it was submitted that the lower Court ought to have found and held that the granting of the N30 million Import Finance Facility was established by the appellant. This Court has been urged to hold so and resolve Issue 3 in favour of the appellant.

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Magaji Oba Abdulkadri Esq, who settled the respondents? brief of argument did adumbrated that a granted of Import Finance Facility is different from normal financial loans in Banking transactions. It is counsel?s contention that in the former no cash was involved. Learned counsel further pointed out that it was only a letter of credit promising to pay whatever was due to the foreign company. He also submitted that the letter of credit was unconfirmed which was not acceptable to the company, therefore, there was no actual cash transferred from the appellant to the 1st respondent as erroneously canvassed. Learned counsel referred to paragraphs 12, 13 and 14 of the amended statement of defence and the evidence of the only witness to the appellant as recorded on page 255 of the record of appeal to buttress the submissions supra.

?

Submitting further, learned counsel pointed out that the onus is on the appellant to prove there was actual release of money made to the 1st respondent in the utilization of the alleged N30 million Import Finance Facility. That mere acceptance of letter of offer, without actual release of the money, cannot be the basis on which

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the 1st respondent can be liable to the counter-claim of the N30 million. It was submitted that the failure of the appellant?s witness to tell the Court the balance in the Account as at 28/10/2013, is an evidence that there were no release of the said N30 million to the 1st respondent. In conclusion, learned counsel urged Issue 3 be resolved against the appellant, having failed to establishment by credible evidence that the sum of N30 million was released to the 1st respondent.

On Issue 4, which is a claim for other facilities granted to the 1st respondent, including accrued interest thereon, it has been submitted that exhibits P1, P2, P3, P6 and P7 as well as the statements on oath of 1st respondent including Exhibits P15, P16 and P17 have established that the 1st respondent obtained credit facilities from the appellant. Learned counsel submitted that under cross-examination, the 2nd respondent admitted the appellant granted facilities to the 1st respondent as shown by exhibit, P1, P2 and P3. Learned counsel adumbrated that if the learned judge of the lower Court had given due consideration to the evidence of the witness to the appellant and the

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exhibits admitted, he would have arrived at a different decision. This Court has been urged to critically examine and evaluate the evidence before the lower Court, and to hold that the appellant did prove its claims against the respondents.

On the claim of N30,000,000.00 allegedly granted to the 1st respondent by the appellant, the learned judge of the lower Court found and held on pages 324 to 326 and 328 of the record of appeal thus:

?The 2nd Defendant while reiterating that the Company (1st Defendant) was not issued with its statement of account since 2004 and the company requests to the Bank for the statement of Account were not honoured, gave a panoramic picture of what an Import finance facility entails. His explanation during cross examination goes thus:

Import Finance Facility is a mere guarantee to the supplier to supply the Company i.e 1st Defendant that the customer will pay. It is not a facility by the Bank. Not a monetary grant by the Bank. The Bank did not pay to the customer whatever is supplied. It is the Company that pays directly to the customer through the Bank. In effect the Bank did not put any cash in the facility.

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At a point in the business between us and the supplier, the supplier could no longer supply us goods from its factory consequently the supplier could no longer accept an unconfirmed letter of credit from the 1st Inter State Bank because the supplier ran into Environmental problem with the Chinese Authority. Consequently, the supplier insisted that they could only supply us by buying the product from other factory for which we needed to pay in cash. We then requested the First Interstate Bank to issue a confirm letter of credit which the Bank would have to pay but which the Bank turned down on the excuse of not having resources to do so.

On Import Finance Account whatever money paid by us into that account kept with the Bank is used to pay for our goods as the Bank is a Condition to pay that money to our customer. Money paid into that Account was not meant to liquidate any loan. The above viva voce evidence of the 2nd defendant has thrown light on why the counter claimant witness could not show the Court where the entry or entries of the monies allegedly disbursed in the statement of Accounts tender- by him even when asked to do so during cross-examination.

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Similarly, he failed to produce the document allegedly prepared by him showing the monies paid in by the defendant on one side and withdrawals made by him as well as the interest charged by the Bank. I agree with the learned Counsel to the Defendants that money was not transferred by the counter claimant into the Defendants Import Finance Account.?

The learned judge went further to hold on page 328 of the record of appeal as follows:

?The defendants having denied payment or gradual injection of N30M into the Import Finance Facility Account by FIB and in the absence of credible prove of such payment by the claimant, I ,hold that such amount was a mere grant, an offer and money was not given to the Defendants in that respect and I so hold; since mere acceptance does not mean the actualization of the subject matter of the contract. There is equally no where in the pages of Exhibit P16 (Import Finance Facility Account) showing payment of N3.714M granted in exhibit P6 to the Defendant. There is however a credit entry of N10M on 28/7/2004 showing a transfer to Finance Facility Account in (Exhibit P16).?

?Regarding the claim

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for other facilities which the appellant alleged were granted to the 1st respondent, the learned judge held on pages 338 to 339 of the record of appeal thus:

?In essence, both parties agreed that cash of N76,810,195.75 was withdrawn by the Defendant from the counter claimant and that same amount was paid back to the counter claimant by the Defendants. The claim of #82,034,805.04 now in contention is the accrued interests and charges. In order to succeed in a claim for interest, a claimant must show how such interest accrued. Whether by law, by contract or agreement or pleaded facts showing that the claim is part of the loss or special changes which the defendant’s wrong doing imposed on him. It is not enough to merely say that the Plaintiff is claiming interest. The base of claim for interest must be manifest on the pleadings. See the case of Sani Abacha Foundation for Peace and Unity & Ors Vs UBA (2010) 41 NSCQR 360.

Thus, the counter claimant failed woefully to place credible and sufficient facts before the Court by explaining to the Court what the amount in each entry in the respective statement of accounts stand for and how it arrived

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at that sum. I hold that the counter claimant has not proved the sum of N82,034,805.04 being claimed on Current Overdraft Account No. 73366120 and Import Finance Account No. 733661530 as at close of business on 30/9/2009. The claim on the said sum of N82, 034,805.04 also fails.?

The learned judge of the lower Court evaluated the evidence adduced before him and made findings before arriving at the decision on pages 324?328, 358 and 359 of the record of appeal. The law is trite, an appellate Court is not to interfere or disturb a finding and/or decision of a trial Court, unless there exist good reasons to do so, for instance, where the finding or decision is perverse, that is, cannot be supported having regard to the evidence before the trial Court The onus of proving that a finding and/or decision of a trial Court is perverse is on the party alleging so. There is presumption in law that the finding and/or a decision of a trial Court is right, unless proved otherwise. See Mainagge v. Gwamma (2004) 12 M.J.S.C. P. 34; Ogunbiyi v. Adewunmi (1988) 5 NWLR Pt. 93 P. 217; Akeredolu v. Akinremi(1989) 3 NWLR Pt. 108 P. 164;Ibodo v. Enarofia (1980) 5

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– 7 SC 42 and Eholor v. Osayande (1992) 6 NWLR Pt. 249 P. 524.

The findings and decisions of the lower Court on pages 324?328 and 338-339 of the record of appeal were based on established facts arrived at after the evaluation and ascription of probative value to the evidence adduced by the lower Court (the trial Court). This Court, being an appellate Court, cannot interfere or disturb the findings of the lower Court on the aforesaid pages of the record of appeal which is the judgment of the lower Court. The appellant has not shown or proved that the findings and/or decision?s of the lower Court are perverse, therefore a miscarriage of justice has been occasioned.

What is a perverse decision in the adjudication process? A perverse decision or finding is an unreliable and unacceptable finding because it is wrong and completely outside the evidence before the trial Court. When a trial Court fails to rely on the evidence before it to make findings which are inconsistent with the evidence, such finding is perverse. See John Shoy Int. Ltd vs. AEPB (2013) 8 NWLR (Pt. 1357) P. 625 @ 640; Yaro v. Arewa Const. Ltd (2007) 17 NWLR (Pt. 1063)

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page 333; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) P. 1 and Anyakora v. Obiakor (2005) 5 NWLR (Pt. 918) P. 507. In Olaniyan v. Fataki (2013) 17 NWLR (Pt. 1384) P. 477 at 492. A perverse decision or finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record, or where the Court whose finding of decision is being reviewed is shown to have taken into account matters which it ought not to have taken into account or shut its eyes to the obvious, and by its very nature the finding or decision has occasioned a miscarriage of justice. See Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Yaro v. Arewa Construction Ltd. (2007) 17 NWLR (Pt.1063) 333.

In Nikagbatse v. Opuye (2010) 14 NWLR (Pt. 1213) P. 50 @ 86, it has been enunciated that a decision is said to be perverse when it fails to take into cognizance the facts or evidence led before the Court. In other words, a decision is perverse where the Court arrived at such a decision by taking into account matters which it ought not to have taken into account or where the Court shuts its eyes to the obvious, thereby, persisting in error, different from what is reasonable or

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required. See Atolagbe v. shorun (1985) 1 NWLR (Pt. 2 360; Egba v. Appah (2005) 10 NWLR (Pt. 934) 464; Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427.

A perverse decision of a Court arises in so many ways, such as when the Court;

(a) Ignored the facts or evidence; or

(b) Misconceived the thrust of the case presented; or

(c) took irrelevant matters into account which substantially formed the basis of its decision;

(d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or

(e) Committed various errors that faulted the case beyond redemption. See F. K. Construction Ltd v. NDIC (2013) 13 NWLR (Pt. 1371) P. 390 @ 421.

In determining whether a decision or finding of facts by a Court is perverse or not, certain factors are to be given due consideration as enumerated in the case of Ojeleye v. Reg. T.O.J.M.C & SCN (2008) 15 NWLR (Pt. 1111) page 520 @ 534-535, which are:

(a) Facts on the basis of which the respondent based its claim;

(b) Challenge given to those facts by the appellant; and

?(c) Trial Court’s assessment of the facts of both sides and its

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eventual conclusions.

If the Court’s decision does not flow from the facts and the evidence before it, or the reasons advanced for the decision are intenable, even where the issue revolves around the credibility of the witnesses whom the trial Court had the privilege of seeing, an appellate Court will interfere, make appropriate findings, evaluate the evidences, and arrived at a just and correct decision in the interest of justice.

The appellant has not been able to show or establish that the decision arrived at by the learned judge of the lower Court is perverse. There is therefore no basis to interfere with same. In the result I resolve Issues 3 and 4 against the appellant. Having resolved the 5 Issues against the appellant, the appeal fails. The judgment of the lower Court delivered in suit No. KWS/128/2009 on the 15th day of May, 2017, is hereby affirmed. The respondents are entitled to costs, which is assessed at N100, 000.00. Same is awarded to them.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree.

HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read in draft the judgment

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just delivered by my learned brother Ibrahim Shata Bdliya JCA.

?

The decision took into consideration all the submissions of the learned counsel in the appeal. I therefore agree with the resolution of the issues and have nothing useful to add. I abide by the orders made including that as to costs

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Appearances:

Toyin OladipoFor Appellant(s)

M.O AbdulkadirFor Respondent(s)

Appearances

Toyin OladipoFor Appellant

AND

M.O AbdulkadirFor Respondent