UNITY BANK v. ZAMAFARA STATE COMPULSORY FREE UBEB (2020)

UNITY BANK v. ZAMAFARA STATE COMPULSORY FREE UBEB

(2020)LCN/15770(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/S/71/2020

Before Our Lordships:

Ali Abubakar BabandiGumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

UNITY BANK PLC APPELANT(S)

And

ZAMAFARA STATE COMPULSORY FREE UNIVERSAL BASIC EDUCATION BOARD RESPONDENT(S)

RATIO:

A CIVIL CASE IS DECIDED ON BALANCE OF PROBABILITY

THE EVALUATION OF EVIDENCE ENTAILS THE ASSESSMENT OF EVIDENCE
However, it should be noted that every Court or every Judge has his own choice or style of writing ajudgment. But where there is an oral as well as documentary evidence the later should be used as a hanger from which to asses or evaluate oral evidence. See KIMDEY VS MILITARY GOV. OF GONGOLA STATE (1988) 2 NWLR (pt. 77) 455, FASHANU VS ADEKOYA (1974) 6 SC 83. It is important to stress the point that the evaluation of evidence entails the assessment of evidence so as to give value and quality to it, and there must be on the record how the Court arrived at its choice of preferring one piece of evidence to the other. See ALAKE VS STATE (1992) 9 NWLR (pt.265) 260 (SC), N.B.C PLC VS EDWARD (2015) 2 NWLR (pt.1443) 236, ADESINA VS OJO (2012) 10 NWLR P552 AND LAGGA VS SARHUNA (2008) 16 NWLR (pt. 1114) 427. ABUBAKAR MAHMUD TALBA, J.C.A.

THE BEAUTY OF LANGUAGE IN THE LEGAL PROFESSION IS THE TOOL OF THE EXPRESSION
“It looks unprofessional or even unpatriotic for any legal practitioner to attempt to or pursue a course of conduct that is capable of undermining or eroding the confidence of the public, on the judicial process and the Courts of this country.”
To this end, I must observe that the beauty of language in the legal profession is the restraint exercised in its use. It is the tool of the profession. This is a classic case of litigation with exasperation otherwise there cannot be any better explanation. The submission of learned counsel for the Appellant is antithetic to the desperate but hopeless leeway of posing to win a case at all cost.
I cannot comprehend how the Appellants counsel could allow his vision to be beclouded by some other consideration other than legal issues, and he wants a stamp of approval for his submission at all cost. However, miracles do not happen in litigation at least not in our adversary system. ABUBAKAR MAHMUD TALBA, J.C.A.

THE RIGHT OF SET OFF OR LIEN IN THE BALANCE OF ACCOUNT

It is settled law that the right of set off or lien can only arise against a customer who is indebted to a banker upon the customer’s balance of account. If a customer has an account with the bank which is in credit and another account which is in debit balances whether in thesame branch or not the banker is entitled to set off on the credit in the account which vest it with a right to use that credit in discharge of indebtedness in the other account. This does not apply like in this instant case where two distinct legal entities who are customers to the bank with two or more separate account. In other words, a banker cannot assert his right of lien over an account of a distinct legal entity. There is a clear distinction between the respondent, Universal basic Education Board which is established by law and Zamfara State Government. Therefore, as rightly found by the learned Chief Judge the Respondent cannot be held liable for the loan granted in favor of Zamfara Sate government unless it is either a surety or guarantor of the loan. In which case there is no record or evidence to show that the respondent is either a surety or guarantor, see the following cases: –
CITY EXPRESS BANK Ltd. VS TRADE AND FINANCE SERVICE (2004-2006) N.B.L.R (pt.1) 425.UNION BANK OF NIGERIA Ltd. VS PENNY-MART Ltd. (1992) 5 NWLR (Pt.240) 228.SALOMAN VS SALOMAN (1897) AC 22. ABUBAKAR MAHMUD TALBA, J.C.A.

A CONTRACT ONLY AFFECTS THE PARTIES TO IT

It is settled law that a third party to a transaction such as loan agreement contained in Exhibit B1 cannot sue or be sued on it even if it is made for its benefit. This is pursuant to the general principle that a contract only affects the parties to it and cannot be enforced by or against a person who is not a party even if the contract is made for his or its benefit. See VIDE NEGBENEBOR VS NEGBENEBOR (1971) 1 ALL NLR 210, IKPEAZU VS AFRICAN CONTINENTAL BANK LTD. (1965) NMLR 374, and OKEOBOR VS EYOBO ENGINEERING SERVICES LTD. (1991) 4 NWLR (pt. 187) 553. See also VIBELKO NIGERIA LTD AND ANOR VS NIGERIA DEPOSIT INSURANCE CORPORATION (2004-2006) 13 N.B.LR (pt.11) 256, OGBODU VS QUALITY FIANCE CO. LTD. (2003) 6 NWLR (pt.815) 147, CO-OPERATIVE BANK Ltd VS OBOKHARE (1996) 8 NWLR (pt.468) 579, A I B Ltd. VS LEE & TEE INDUSTRIES Ltd. (2003) 7 NWLR (pt.819) 366 and SAVANA BANK PLC VS IBRAHIM (2000) FWLR 1552-1743 (pt. 25) 1626 ABUBAKAR MAHMUD TALBA, J.C.A.

It is trite that the burden of proving particular fact is on the party who seeks to rely on it and who will fail where such evidence is not adduced. See MADAM I. ARASE VS PETER U. ARASE (1981) 5 SC 33 AND ONYEJEKWE VS ONYEJEKWE (1999) 3 SC 7. The appellant’s counsel asserted that Pw1did not sign his witness deposition before a Commissioner for Oaths, the burden is on himto prove that particular fact by evidence which is clear, positive and not open to doubt. The appellant has failed to do so and therefore issue one is resolved against the appellant in favour of the respondent. ABUBAKAR MAHMUD TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgement of Zamfara State High Court delivered on the 21st April, 2020 in suit No: ZMS/GS/35/2018. The Respondent as plaintiff at the lower Court commenced this suit by writ of summons, praying for the following Reliefs against the defendants now Appellants;
1. An order directing the defendant to forthwith release the sum of ₦565,036,787:39 (Five hundred and sixty-five million seven hundred and eighty-seven naira thirty-nine kobo only) standing to the credit of the plaintiff as at 31/05/2011 in its account No: 0015838720 domiciled at the defendants Gusau main branch.
2. An order directing the defendant to forthwith credit the plaintiffs account No: 0015838720 with the sum of ₦1,147,024,678.04 being 7 years accrued interest on the principal sum of ₦565,036,787,39 at the rate of 29% from 31/05/2011 to 30/05/2018.
3. Interest on the sum of ₦1,712,051,465.79 at the rate of 29% from 31/05/2018 until judgment and thereafter at the Court rate of 10% until satisfaction thereof.
4. An order directing the defendant by itself, its agents or servants to forthwith grant the plaintiff unhindered access including the right to make withdrawals payments and transfer of funds from its account 0015838720 domiciled at the defendants Gusau branch.
5. ₦200,000,000.00 (Two Hundred Million Naira) only as punitive/ exemplary damages for flagrant violation/breach of the fiduciary relationship between the plaintiff and the defendant.
6. A written apology to the plaintiff for unlawful withholding its funds and depriving it of use of scarce moneys for the discharge of its statutory functions.
7. ₦350,000,000.00 (three hundred and fifty million naira) only cost of this action.

The defendant/appellant filed a statement of defence denying the plaintiff/respondents claims and also pleaded the right of lien, doctrine of set-off and fraud. The defendant/appellant prayed the Court to dismiss the claims as being unmeritorious and gold digging exercise. The defendant/appellant also asked the Court to award the Sum of ₦500,000,000.00 for breach of contract and ₦30,000,000.00 for the cost of defending the suit against the plaintiff/respondent.

The plaintiff/respondent filed a reply to the statement of defence denying any liability to the defendant/appellant.

After taking evidence from both side and the written addresses of counsel, the learned trial Judge Kulu Aliyu OFR Hon. Chief Judge gave judgment in favour of the respondent against the appellant.

Aggrieved by the decision of the lower Court, the appellant appealed to this Court via a notice of appeal filed on the 14th May, 2020, containing three (3) grounds of appeal as stated here under;
GROUND ONE
The written deposition of Honourable Murtala Adamu who testified as Pw1 on the 15th July, 2019 is not credible and invalid and same is an error for the Court to rely on.
PARTICULARS OF ERROR
1. Pw1 in cross examination said “that he did signed the written statement on oath but could not remember whether he signed it in his lawyer’s office or in his office.”
2. Pw1 witness statement is discredited in cross examination and the Court ought to reject same as was done in OMISORE VS AREGBESOLA (2015) 15 NWLR (PT. 1482) 204 AT 325.
3. Section 117 (4) of the Evidence Act 2011 make it mandatory for Pw1 to sign his witness statement in the presence of the person before whom it is taken here, the commissioner for oath.
4. There is no evidence before the trial Court that Pw1 swore and signed his witness statement before the commissioner for Oaths who is the lawful authority for such purpose.
5. Pw1 evasive answer is an admission of non-compliance with the strict statutory and judicial authorities on credible witness statement.
GROUND TWO
The Court erred in law when it held that the plaintiff who is not a party to the loan agreement between the defendant and Zamfara State Government cannot be held liable for the alleged debt of the said government merely because it was referred to as the beneficiary of the said loan.
PARTICULARS OF ERROR
1. The plaintiff took the sole benefit of the loan as evidence by Exhibit A11.
2. Being the sole beneficiary of the loan facility as evidenced in Exhibit A11 between the plaintiff and defendant same cannot be referred to as merely.
GROUND THREE
The Court erred in law when it refused to make a finding on whether Zamfara State Government breached Exhibit A7 to the detriment of the defendant but to the advantage of the plaintiff.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

PARTICULARS OF ERROR
1. Exhibit A7 was the basic/reason for the defendant loan facility which the plaintiff is the sole beneficiary.
2. the breaching Exhibit A7 by the Zamfara State Government is to the advantage of the plaintiff which the defendant has made an issue in its statement of defence and deposition on oath.
3. A finding by the trial Court that the Zamfara State Government breached its undertaking in Exhibit A7 with the defendant to the advantage of the plaintiff will absolve the defendant from any liability in suit No: ZMS/GS/35/2018.

At the hearing of this appeal on the 13th day of October, 2020. R.T Mustapha adopted the appellants brief of argument filed on the 11th August, 2020 and the reply brief filed on the 10th September, 2020. And Ibrahim Abdullahi adopted the respondents brief of argument filed on the 26th August, 2020. While the appellants counsel urged the Court to allow the appeal and set aside the judgment of the lower Court. The respondents counsel urged the Court to dismiss the appeal and affirm the decision of the lower Court.

From the three ground of appeals, the appellant distilled two issues for determination of this appeal thus;
1. Whether the respondents (Pw1) written, deposition/statement is valid, credible and reliable having regard to statutory and requirements for credible witness depositions (Ground One).
2. Whether the refusal of the trial Court to make a finding on Exhibits A7 and proper evaluation of Exhibit B1, is detrimental to the Appellant in suit No: ZMS/GS/35/2018 having regard to the holden of the Court that the plaintiff (Respondent) cannot be held liable for the alleged debt of the Government of Zamfara State. (Ground 2 and 3).

From the three grounds of appeal the respondent equally raised two issues for the determination of this appeal, thus;
1. Whether the written deposition/statement on oath of Pw1 who was the sole witness called for the Respondent in the Court below is competent and may properly be relied upon in support of the respondents claim (Ground 1)
2. Whether the Court below evaluated or properly evaluated the evidence laid before it and came to the right conclusion in entering judgment for the respondent against the appellant (GROUND 2 & 3)The two issue raised by both the Appellant and the respondent relate to the competence and credibility of the evidence of Pw1 as well as the evaluation of the evidence before the trial Court. In other words, the two issues are similar except for the manner in which they were couched. The issues formulated by the Respondent I must say are apt and appropriate. And I adopt the two issues raised by the respondent as issues for the determination of this appeal.

But before I go into considering the issues for determination, I think it is important to look at the summary of the facts which led to the commencement of the suit at the lower Court.

The plaintiff/Respondent is a customer of the Defendant/Appellant. The Plaintiff/Respondent maintains several accounts in its name at the defendant/appellants branch at Gusau, including UBE Matching Grant Account number 0015838720 subject matter of this suit. Equally the Zamfara State Government operates/maintains several accounts in its name at the defendant/appellants branch in Gusau. Through its own account No: 0015838720 UBE Matching Grant Account, the plaintiff/respondent receives grants from both Federal and State Governments and makes payments for the funding of its projects, payment of salaries and allowances of teaching staff etc. Pursuant to the plaintiff/respondents letter dated 11/10/2011 and the defendant/appellants response dated 12/10/2011, it was a fact that the plaintiff/respondent was not in any way indebted to the defendant/appellant but rather the plaintiff/respondent has credit balance of ₦493,024,184:97. The plaintiff/Respondent did not seek or obtain any loan or credit facility from the defendant/Appellant and did not guarantee any loan. But the plaintiff/Respondents account referred to above was frozen before 12/10/2011 due to the alleged nonpayment of the UBE counterpart funding facility granted by the bank to Zamfara State Government. The Defendant/Appellant denied the Plaintiff/Respondents demand for the release of its ₦565,036,787:39 and insisted that it was setting off same as part payment of the debt of Zamfara State Government arising from ₦657,999,999:63 loan granted to it. The Defendant/Appellant denied the Plaintiff/Respondent access to and use of its funds despite repeated demands, on the claim of lien/set –off of the debt owed it by Zamfara State Government, as contained in the loan agreement in a clause under the sub title “operating conditions” which state that;
“The bank may apply any credit balance (whether or not due and in whatever currency) which is at any time held by any branch of the bank to offset any amount outstanding on this facility.”

The Plaintiff/Respondent wrote a letter to the Defendant /Appellant dated 13/06/2016 in which the Plaintiff/Respondent denied the claims by the Defendant/Appellant that it had a right of set-off on the credit balance in the Plaintiff/Respondents account. In a bid to intervene the Central Bank of Nigeria (CBN) wrote a letter dated 10/1/2017 in which it stated that the defendant/appellant had right of lien on the funds. Standing in the credit of the plaintiff/respondent on the grounds that the plaintiff/respondent is an agency of Zamfara State Government and was the beneficiary of the facility availed to Zamfara State Government. The plaintiff/respondent now commenced this action to recover its funds.

I shall now consider this appeal by taking the two issues raised by the respondent in the brief of argument. Thefirst issue is whether the written deposition/statement on oath of Pw1 who was the sole witness called for the respondent in the Court below is competent and may properly be relied upon in support of the Respondents claim.

First and foremost, let me observe that the issue in contention is the competence of the witness (Pw1) written deposition/statement in view of the evidence elicited from Pw1 during cross examination. The issue is not about the credibility or reliability of the written deposition/statement as posited by the appellant. The appellants counsel submitted that the written statement of Pw1 having failed to comply with statutory and judicial authorities on credible and reliable witness statement is rendered invalid. A witness deposition/statement has to be competent before a Court evaluates the evidence to consider whether it is credible and reliable.

Generally, while evaluating the evidence, the Court will consider all of the following factors, namely:
a. Whether the evidence is admissible.
b. Whether the evidence is relevant.
c. Whether the evidence is credible.
d. Whether the evidence is more probable than that given by the other party.
See MILITARY GOV. OF LAGOS VS ADEYIGA (2012) 5 NWLR (PT.1293) 291 SC.

On issue one the appellants counsel began his submission with reference to the case of CHIDUBEM VS EKENNA (2009) ALL FWLR (pt.455) 1692 where the Court of Appeal held that in order to determine what constitutes a valid deposition on oath; recourse must be had to the relevant provisions of the evidence Act, that where there is evidence that the depositions were not sworn before a person dully authorized to administer oaths such depositions would be defective. In that case the witnesses gave evidence that none of them signed their depositions before the person duly authorized to administer oaths.

Learned counsel submitted that by virture of Section 82 of the Evidence Act the signature of the commissioner for oath on (Pw1) Hon. Murtala Adamu witness deposition is prima facie evidence that the deposition was duly sworn to before the person authorized to administer oaths.

Learned counsel submitted that in the instant appeal (Pw1) Hon. Murtala Adamu who testified on the 15th July, 2019 on being cross-examined on his deposition dated 21st June, 2018 he stated thus; “I told the Court that one of the ways I could identify my deposition is by my signature. I did signed the written statement on oath but I cannot remember whether I signed it in my lawyer’s office or in my office.”

He then submitted that flowing from the above evidence of Pw1, Pw1 did not sign his written statement/deposition before the commissioner for oaths, notwithstanding the signature of the commissioner for oaths.

He relied on the case of BUHARI VS INEC (2008) 4 NWLR (pt. 1078) 546 and he urged the Court to hold that Pw1 written deposition was not sworn before an authorized person.

In his reaction to the appellant’s counsel submission on this issue the respondents counsel submitted that the appellants counsel has misconceived the nature of evidence that could rebut the presumption that the deposition in the instant appeal was sworn before the commissioner for oaths. He said it seems rather preposterous and supercilious for one to argue that a man who profess failure of memory as to where he signed his deposition or statement on oath has invariably admitted that he did not do so before the commissioner foroath authorized to administer oaths. He submitted that the words “I can’t remember” simply means lack of recollection of an event or fact. And the legally admissible evidence required by the appellant to rebut the presumption that the said statement was signed before the commissioner for oath would include an outright admission against interest by Pw1. He relied on the case of CHIDUBEM VS EKENNA (Supra) where the Supreme Court per EKUN JSC held that, from the evidence of these witnesses it is clear that none of them signed their depositions before the person authorized to administer oaths. He submitted that same cannot be said of the highly speculative or imaginative evidence relied upon by the appellant which merely shows that the witness (Pw1) did not remember or recollect. Learned counsel submitted that what is required to rebut the presumption in favour of the oath having been taken before an authorized person is the testimony of the commissioner for oath or any other officer in the office of the commissioner for oath stating that Pw1 never attended/appeared before the commissioner for oaths to sign the statement on 21/6/2018 or an affidavit deposing to the fact that the statement was not taken before an authorized person. He said in the absence of that the presumption raised under Section 109 & 112 of the Evidence Act 2011 to the effect that the commissioner for oath signature thereon is prima facie evidence that the depositions were duly sworn before person authorized to administer oath. He cited the case of OLUTAYO VS FUTMINNA (2007) LPELR – 11846 (CA).

The learned respondents counsel further contended that no issue was joined by parties on the incompetency of the witness statement on oath of Pw1 at the Court below. The evidence of Pw1 extracted under cross-examination were never based on pleaded facts. He said the position of the law is that evidence elicited under cross-examination on matters not pleaded goes to no issue. He cited the case of STANBIC IBTC BANK VS LONGTERM GLOBAL CAPITAL LTD & ORS (2018) LPELR 44053 (CA) wherein Georgewill J.C.A stated thus;
“In law evidence elicited under cross-examination but not on facts pleaded does not enjoy a higher status than evidence in chief given on facts not pleaded merely because it was obtained under cross-examination as they both go to no issue see DAGGASH VS BULAMA (2004) 14 NWLR (PT.892) 144 @ p 241, see also OFEM & ANOR VS EWA & ORS (2012) LPELR – 7852 (CA); BAMGBOYE & ORS VS OLAREWAJU (1991) 4 NWLR (pt.184) 132 @ p.155; GAJI & ORS VS PAYE (2003) 8 NWLR (pt. 825) 583.”

Learned counsel urged the Court to hold that the deposition/statement on oath of Pw1 dated 21/6/2018 is competent and that the Court below rightfully considered the depositions thereat in its judgment.

In his reply brief the appellants counsel submitted that a pleading not supported by evidence is deemed abandoned. But there are exceptions to this rule as was held in the case of TALLEN & ORS VS JANG & ORS (2001) LPELR – 92531 P 1 @ P 8-10 ratio 10 thus;
a. Evidence led during cross-examination on issue joined is valid and authentic as evidence produced from examination in chief.
b. Evidence elicited from plaintiff witness under cross-examination forms part of the case for the defence, see also AKOMOLAFE VS GUARDIAN PRESS (2010) 1 SCNJ P.283 @ 285-286.

Learned counsel submitted that evidence elicited from Pw1 during cross-examination as to not knowing where he signed his witness statement on oath is valid and can be relied upon by this Court to render invalid/inadmissible the witness deposition on oath of Pw1.

As earlier mentioned this issue has to do with the competence of the written deposition of Pw1 as opposed to its credibility. It is only when the witness deposition is competent then the Court decides on its credibility. Credible evidence, means the evidence that is worthy of belief. And for evidence to be worthy of belief it must not only proceed from credible sense it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstance. Written depositions was introduced to accelerate the hearing of cases by doing away with prolonged oral evidence in chief which is recorded in longhand.
For the Court to accept the written depositions as proof of the facts it contains, it must be made on oath before a Commissioner for Oaths or a person duly authorized to administer oaths. By the provisions of the Evidence Act, where there is evidence that the depositions were not sworn before a person duly authorized to administer oath, such deposition would be defective and the Court would have to discountenance it. However, by virtue of Section 82 of the Evidence Act 2011, the signature of a person authorized to administer oath, on the written deposition is prima facie evidence that the deposition was duly sworn before the person authorized to administer oaths. Prima facie has been defined by Black`s law Dictionary, 6th edition thus;
“Such as will prevail until contradicted and overcome by other evidence.”
But it is a rebuttable presumption, hence it can be rebutted by the witness. The evidence that would rebut the presumption must be clear and unambiguous. Any evidence that is capable of several interpretations would not rebut the presumption. Where witnesses gave evidence by themselves that none of them signed their depositions before the person authorized to administer oaths, they had thus by their own evidence rebutted the presumption in favour of their written depositions. See CHIDUBEM VS EKENNA (2009) (Supra), BUHARI VS INEC (2008) (Supra) and MARAYA PLASTIC INDUSTRIES LTD VS INLAND BANK (NIG) PLC (2002) 7 NWLR (pt. 765) 109.

In this instant appeal, Pw1 Hon. Murtala Adamu who testified on the 15th July, 2019 was cross-examined on his written depositions dated 21st June, 2018 and he stated that;
“I told the Court that one of the ways I could identify my deposition is by my signature. I did signed the written statement on oath but I cannot remember whether I signed it in my lawyer’s office.”
See page 292 of the record of appeal line 19-22. The appellant’s counsel contended that flowing from the above evidence of Pw1, Pw1 did not sign his written statement/deposition before Commissioner for Oaths, the signature of the Commissioner for Oaths on the deposition notwithstanding. On the other hand, the Respondents counsel contended that merely because Pw1 profess failure of memory as to where he signed his deposition or statement on oath has invariably admitted that he did not do so, before the Commissioner for Oath. The respondent counsel however commended the submission of the Appellants counsel on the position of the law that the endorsement by the Commissioner for Oaths on the deposition is prima facie evidence which is open to rebuttal. He then submitted that there isno legally admissible evidence to rebut the presumption that the deposition was signed before the Commissioner for oaths. I am in agreement with the submission of learned counsel for the respondent, Pw1 stated clearly that “I cannot remember whether I signed it in my lawyer’s office or in my office”. This statement is clear and unambiguous. No other meaning can be read into it except what is contained therein. In other words, it cannot be taken to mean that Pw1 said he did not sign his deposition before the Commissioner for Oaths. There is therefore the presumption that Pw1 signed his deposition before the Commissioner for Oaths. And the evidence that can rebut the presumption is the evidence which is clear, positive and not open to doubt. See SPDL LTD VS NWOLU (2000) 2 WRN 32.

Issue two is whether the Court below evaluated or properly evaluated the evidence laid before it and came to the right conclusion in entering judgment for the Respondent against the Appellant.

The appellants counsel submitted that it is the primary duty of Courts of law to make findings on issues brought before the Courts and make proper evaluation/assessment of the totality of the evidence both oral and documentary brought before them by parties/litigants in adjudication. He cited the case of MRS. EVANLINE FOMBO VS RIVER STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY & 1 OTHER (2005) 5 SCNJ 213 @ 216. Learned counsel submitted further that in suit No: ZMS/GS/35/2018, subject of this appeal, the defendant now appellant relied heavily on Exhibit B1, the loan agreement for credit facility dated 22nd February, 2010. It pleaded in paragraph 16 of the statement of defence and given in evidence in paragraph 17 of Dw1 witness deposition. Exhibit A7, which is the irrevocable undertaking to maintain VAT account with the defendant dated 2nd April, 2010 and pleaded in paragraph 22 of the statement of defence. It’s given in evidence in paragraph 21 of Dw1 witness deposition. And that these exhibits emanated from Zamfara State Government to the defendant. Exhibit A11 is the offer of banking facility of ₦657,999,999:63 kobo dated 29th December, 2009. it’s pleaded in paragraph 8 and 10 of the statement of defence and given in evidence in paragraph 9 of Dw1 witness deposition. The exhibit emanated from the Appellant to the respondent. The learned counsel submitted that if the trial Court had embarked on proper comprehensive and total review assessment and evaluation of evidence especially documentary evidence ditto Exhibits A7, A11 and B1, the trial Court could not have made its findings which is perverse. Learned counsel cited case of MINI LODGE LTD AND 1 ORS VS CHIEF OLUKA OLAKA NGEI AND 1 ORS (2009) 12 SCNJ 93 and KAYDEE VS HON. MINISTER (2010) 2 SCNJ 276. Learned counsel urged the Court to re-evaluate the totality of the evidence adduced and do Justice to the appellant whose vital evidence was forsaken by the trial Court. He concluded that the plaintiffs/respondents having taken benefit in Exhibit A11 and bound by Zamfara State Government whose agency the plaintiff/respondent is liable to the defendant on the representations contained in Exhibit A7, B1, the defendant have parted with monies which could only be liquidated by holding the respondent liable, any position of this Court, short of this will mean stamping the fraudulent acts of the plaintiff/respondent and Zamfara State Government on the defendant.

The concluding part of the appellant’s counsel submission which I underlined above is quite interesting and I shall come back to it anon.

While responding to issue number two, the learned respondent’s counsel started with a poser and that is what does evaluation of evidence entails? In answer to this poser, he cited the case of ANAEME VS OKPALA (2017) LPELR 42780 (CA) where OGUNWUMIJU JCA stated thus:
“The evaluation of evidence by a trial Court involves a belief of the evidence of one party and disbelief of the other or a reasoned preference to one version or the other.’’See also ERIKI VS ERIKI & ORS (2017) LPELR 42423 (CA). The learned counsel submitted that the summary of the case for the Appellant under this issue is that the Court below did not purportedly evaluate or consider salient evidence adduced by the Appellant before reaching its conclusion. Specifically, the Appellant is miffed by the alleged failure to mention and or consider Exhibits A7, A11 and B1 before the Court which caused the Court below to come to an erroneous or perverse conclusion.

Learned counsel submitted that the appellants counsel is misconceived, and he drew the attention of the Court to page 364-376 of the records of appeal containing the lower Court’s consideration of the evidence laid by all parties. Learned counsel submitted further that evaluation of evidence is in the province of the Court below and is nothing more than the appraisal of both oral and documentary evidence and the ascription of probative value. He referred to the case of EZEANI VS FRN (2019) LPELR-46800 (SC). He submitted that the Court below properly and commendably discharged its duty to evaluate the evidence laid before it and came to the right conclusion. The findings and judgment entered by the Court below in favour of the respondent is amply supported by credible evidence properly admitted by the Court and there is no cause for this Court to intervene, interfere or re-evaluate the evidence as the appellant had urged the Court. The learned counsel supported his arguments and submission with copious decisions of the lower Court. I will not reproduce the decisions of the lower Court here in order to avoid repetition.

The starting point is that it is trite that a civil case is decided on balance of probability. It is the duty of trial Judge before whom evidence is adduced to decide on which evidence he accepts and which evidence he rejects. But before he does that he has to put all the totality of the evidence adduced by both parties on an imaginary scale, which includes both oral and documentary evidence. And then see which is heavier not by the number of witnesses called by each party, but the quality and probative value of the evidence. See MOGAJI & ORS VS ODOFIN & ORS (1978) 4 SC 91, BUBA VS BUKAR (2003) FWLR (pt. 183) 71.
However, it should be noted that every Court or every Judge has his own choice or style of writing a judgment. But where there is an oral as well as documentary evidence the later should be used as a hanger from which to asses or evaluate oral evidence. See KIMDEY VS MILITARY GOV. OF GONGOLA STATE (1988) 2 NWLR (pt. 77) 455, FASHANU VS ADEKOYA (1974) 6 SC 83. It is important to stress the point that the evaluation of evidence entails the assessment of evidence so as to give value and quality to it, and there must be on the record how the Court arrived at its choice of preferring one piece of evidence to the other. See ALAKE VS STATE (1992) 9 NWLR (pt.265) 260 (SC), N.B.C PLC VS EDWARD (2015) 2 NWLR (pt.1443) 236, ADESINA VS OJO (2012) 10 NWLR P552 AND LAGGA VS SARHUNA (2008) 16 NWLR (pt. 1114) 427.

It should borne in mind that the evaluation of evidence and the ascription of probative value to evidence are within the province and primary function of the trial Court. If it creditably carries out the assignment, the Court of appeal would not interfere with the trial Court`s evaluation of evidence. The appeal Court will be left with no option but to affirm such a decision. See ALI PINEER KWAJAFFA & 2 ORS VS BANK OF THE NORTH LTD. (2004) 13 NWLR 146 ANDOSUJI VS EKEOCHA (2009) 6-7 SC (PT.11) 91, SKYE BANK PLC & ANOR VS CHIEF MOSES BOLANLE AKINPELU (2010) 3 SC (pt. 11) 29. But if a trial Court fails to or does not evaluate evidence properly, the Court of Appeal is expected to evaluate the evidence and come to a decision that is fair and just. See AFOLABI VS WSW LTD. (2012) 17 NWLR P286, ODINAKA VS MOGHALU (1992) 4 NWLR (pt.233) 1.

When the evaluation of evidence by a trial Court is being challenged, the principles that guide the Court of appeal are
1. Whether the evidence is admissible.
2. Whether the evidence is relevant.
3. Whether the evidence is credible.
4. Whether the evidence is more probable that that given by the other party.
5. Conclusiveness of the evidence.
See OYEWOLE VS AKANDE & ANOR (2009) 7 SC 137.
OLALOMI INDUSTRIES LTD VS N.I.D.B LTD (2009) 7 SC 92.
WOLUCHEM VS GUDI (1981) SC 94.

It is now pertinent to ask whether the lower Court assessed and evaluated the evidence adduced before it. To answer this question, it is necessary to look at the record of appeal, particularly the judgment of the lower Court. While reviewing and evaluating the evidence, the learned trial Judge at page 365 lines 1-11 of the records, stated thus;
“From the pleading of the parties and evidence adduced before the Court, it is not in doubt that the plaintiff is a customer of the defendant and maintained accounts with the defendant bank. It is also not in doubt in one of the accounts with account name and number UBE Matching Grant Account No: 273/1762514/130 the plaintiff had credit balance of ₦493,024,184.97. it also not in doubt that the said account has been frozen due to non-payment of the UBE counterpart funding facility granted by the Bank to the State Government. This fact was admitted by the defendant in paragraph 2 of the statement of defence. Now the question is does the defendant have the right to froze (Sic) the plaintiffs account simply because the State Government refusal (Sic) to pay the loan granted to it by the defendant? the contract between the plaintiff and the defendant is that of banker/customer relationship i.e. the defendant being a bank and the plaintiff its customer.”

At page 370 lines 21 – 31 of the records, the learned trial Judge stated thus;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“Exhibits A9, A10 and A11 are offers of banking facilities granted to Zamfara State Government by the defendant bank in the Sum of ₦470,000,000:00, ₦4,000,000,000:00 and ₦659,999,999,999:63.
There is also Exhibit A7 which is an irrevocable undertaking to maintain the State VAT account with the defendant bank. The undertaking was signed by Aminu A. M. Shinkafi the Accountant General, Muhammad Mujtaba Isa Mni, Permanent Secretary and Alhassan Ibrahim Shinkafi Hon. Commissioner, all of ministry of finance Zamfara State. From the Exhibits mentioned above it is clear that the plaintiff has been able to establish that is maintained an account with the Defendant bank…’’

At page 371 lines 1-7 of the record, the learned trial Judge stated further that;
“It is also not in doubt that by Exhibits A9, A10, A11 the loan facilities were granted to Zamfara State Government. Now the question is does the defendant have any legal right to deny the plaintiff access to its account on the ground that the Zamfara State Government reneged on its undertaking and transferred its VAT account from the defendant bank?’’<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Equally at page 372 lines 11 to 23 of the record the learned trial Judge stated thus;
“In Exhibit A11 which is a letter addressed to the Accountant-General Zamfara State Government Gusau, the defendant offered the Zamfara State Government loan facility of N657,999,999:63 (Six hundred and fifty-seven million, nine hundred and ninety-nine thousand, nine hundred and ninety-nine naira, sixty-three kobo).
There is Exhibit B1 which is a loan agreement for credit facilities wherein the Zamfara State Government represented by the Accountant-General accepted the offer of loan facility and agreed with the terms as contained therein. The agreement was dated 22nd day of February, 2010 under the common seal of the Accountant-General in the presence of and also signed by Aminu A. N. Shinkafi the Accountant-General and Muhammad Mujtaba Isa Mni, the Permanent Secretary.”

While reviewing the evidence of the plaintiff’s witness Pw1, the learned trial Judge stated thus;
“The plaintiff in its evidence before the Court through Pw1 whose witness written deposition on oath was admitted and was also cross-examined by the defendant’s counsel Mr. F. E Okotete clearly show that the loan facility was granted to the State Government. Pw1 under cross-examination said Exhibit A7 emanates from Ministry of finance and was signed by Aminu A.N Shinkafi, Muhammad Mujtaba Isa Mni and Alhassan Ibrahim Shinkafi. He also mentioned that Exhibit A11 is an offer of bank credit facility to Accountant-General of Zamfara State and the amount stated is N657,999,999:63. He stated further that the purpose was to enable the government finance its counterpart funding of Universal Basic Education. Pw1 mentioned that Unity Bank (defendant) illegally withheld the money of Zamfara State Universal Basic Education Board with its account name UBE Matching Grant Account with the defendant bank.”

See page 372 lines 24-33 and page 372 lines 1-5 of the record. At page 373 lines 6-31 of the record. The learned trial Judge reviewed the evidence of the defence witness now appellant. The Court stated thus;
“In defence the defendant called one witness Ahmad Abdulmuminu and employee of the defendant bank. He stated that the plaintiff is a customer of the defendant. He adopted his witness statement deposition on oath and was cross-examined by the plaintiff counsel.
In his answer during the cross-examination he stated that he was aware that Zamfara State Government has accounts and the accounts are managed by the Ministry of finance. He also stated that at all material time the Zamfara State Ministry of Finance has a Commissioner, a Permanent Secretary and Accountant-General are signatories to the accounts. He also confirmed based on record the chairman of the plaintiff and the Accountant of the plaintiff are not signatories to the accounts where the Permanent Secretary, Commissioner and Accountant-General are signatories. Dw1 confirmed that Exhibit A9, A10 and A11 are loan agreement between the defendant (bank) and Zamfara State Government and the Exhibits did not mention the plaintiff name. Dw1 also confirmed that the loans were disbursed to Zamfara State Government and that the nonpayment of the loans granted was the reason the defendant withheld the account of the plaintiff. Dw1 also stated that there was no mention of plaintiff in Exhibit B, that in Exhibit B1 there was no mention of the plaintiff. The witness also confirmed that there was no undertaking by the plaintiff in Exhibit A9, A10 and A11. He further stated that the bank is not authorized to take funds of one customer to give it to another customer without authorization.”

After a review of the evidence presented before the Court by both parties, oral and documentary the learned trial Judge stated thus;
“From the evidence adduced before this Court both oral and documentary, it is very clear that the plaintiff was not a party to the loan agreement between Zamfara State Government and the defendant (bank) and that the loan facility was granted to Zamfara State Government.
It is also in evidence that the plaintiff maintained a separate account. I agree with the defendant’s counsel that the plaintiff is an agency of the Zamfara State Government being created by the law.
But the question is will the plaintiff be held liable for an act of the State Government under the law of contract does the defendant have any right to set off over the plaintiff account.
It is for the defendant to prove by preponderance of evidence that it has the right of set off over the account of the plaintiff which is not a party to the transaction between the defendant and Zamfara State Government.”
See page 373 line 32-37 and page 374 lines 1-8 of the record.

The crux of the Appellants case in issue two is that the lower Court did not make a finding on Exhibit A7 and proper evaluation of Exhibit B1. Exhibit A7 is an irrevocable undertaking to maintain the state VAT account with the defendant bank now Appellant. While Exhibit B1 is the loan agreement between Zamfara State Government and the defendant bank now Appellant. Wherein Zamfara State Government represented by the Accountant-General accepted the offer of the loan facility and agreed with the terms of the offer.

The learned trial Judge had settled all the debt owed to the facts and had properly perceived, accurately evaluated and specifically made finding before applying the law. It is a total misconception for the Appellant to think that just because the trial Court did not make findings that is favorable to them, then that means that there was no proper evaluation of evidence and findings. After reviewing the evidence on record vis a vis the pleadings, the learned trial Court Judge made definite findings which I had earlier in this judgment reproduced for emphasis. It is on record that the trial Court found that the respondent and Zamfara State Government maintain separate accounts with the defendant/appellant. The respondent and Zamfara State are two separate and distinct legal entities, each maintaining an account with the defendant/appellant in its own name and its own right. The respondent who is not a party to the loan agreement between the defendant/appellant and Zamfara State Government cannot be held liable for the alleged debt of the said government merely because it was referred to as the beneficiary of the said loan. The defendant/appellant has no right of set off or lien against the respondents account domiciled at the appellant’s bank for the purpose of recovering a debt allegedly incurred by the Zamfara State Government in its own name and right.
It is settled law that the right of set off or lien can only arise against a customer who is indebted to a banker upon the customer’s balance of account. If a customer has an account with the bank which is in credit and another account which is in debit balances whether in the same branch or not the banker is entitled to set off on the credit in the account which vest it with a right to use that credit in discharge of indebtedness in the other account. This does not apply like in this instant case where two distinct legal entities who are customers to the bank with two or more separate account. In other words, a banker cannot assert his right of lien over an account of a distinct legal entity. There is a clear distinction between the respondent, Universal basic Education Board which is established by law and Zamfara State Government. Therefore, as rightly found by the learned Chief Judge the Respondent cannot be held liable for the loan granted in favor of Zamfara Sate government unless it is either a surety or guarantor of the loan. In which case there is no record or evidence to show that the respondent is either a surety or guarantor, see the following cases: –
CITY EXPRESS BANK Ltd. VS TRADE AND FINANCE SERVICE (2004-2006) N.B.L.R (pt.1) 425.UNION BANK OF NIGERIA Ltd. VS PENNY-MART Ltd. (1992) 5 NWLR (Pt.240) 228.SALOMAN VS SALOMAN (1897) AC 22.

The Respondent is a stranger to the loan agreement between the Appellant and Zamfara State Government. It is settled law that a third party to a transaction such as loan agreement contained in Exhibit B1 cannot sue or be sued on it even if it is made for its benefit. This is pursuant to the general principle that a contract only affects the parties to it and cannot be enforced by or against a person who is not a party even if the contract is made for his or its benefit. See VIDE NEGBENEBOR VS NEGBENEBOR (1971) 1 ALL NLR 210, IKPEAZU VS AFRICAN CONTINENTAL BANK LTD. (1965) NMLR 374, and OKEOBOR VS EYOBO ENGINEERING SERVICES LTD. (1991) 4 NWLR (pt. 187) 553. See also VIBELKO NIGERIA LTD AND ANOR VS NIGERIA DEPOSIT INSURANCE CORPORATION (2004-2006) 13 N.B.LR (pt.11) 256, OGBODU VS QUALITY FIANCE CO. LTD. (2003) 6 NWLR (pt.815) 147, CO-OPERATIVE BANK Ltd VS OBOKHARE (1996) 8 NWLR (pt.468) 579, A I B Ltd. VS LEE & TEE INDUSTRIES Ltd. (2003) 7 NWLR (pt.819) 366 and SAVANA BANK PLC VS IBRAHIM (2000) FWLR 1552-1743 (pt. 25) 1626.

On this note, I hold that the learned trial Chief Judge had properly evaluated the evidence and had made specific findings. This Court finds no reason to interfere with the evaluation of evidence issue two is also resolved against the Appellant.

Before I conclude, I had earlier mentioned that I will go back to the concluding part of the Appellant’s counsel submission which I find quite interesting it read thus;
“…The plaintiff/respondent having taken benefit in Exhibit A11 and bound by Zamfara State Government whose agency the plaintiff/respondent is liable to the defendant. More so, the defendant on the representations contained in Exhibit A7, B1, the defendant have parted with monies which could only be liquidated by holding the respondent liable any position of this Court short of this will mean stamping the fraudulent acts of the plaintiff/respondent and Zamfara State Government on the defendant.”
What the Appellants counsel is saying is that if this Court decides not in accordance with the position taken by the Appellant, the Court would be stamping the fraudulent acts of the respondent and Zamfara State Government.
In this case of ALIU BELLO AND 13 ORS VS A.G. OYO STATE (1986) 5 NWLR (pt.45) 870 the learned jurist Karibi Whyte JSC stated thus;
“I think I am speaking the mind of all engaged in the administration of Justice, not only in this Court but in all the Courts in this country that the day Courts allow the inarticulacy or ignorancy of counsel to determine the result of an action before it, that day will herald the unobtrusive genesis of the unwitting enthronement of injustice aided by the Court itself by default.”
Equally, the learned jurist Gumel JCA had this to say in the case of ONYEKWELI VS INEC (2009) 6 NWLR (pt.1136) 33-34, he stated thus;
“It looks unprofessional or even unpatriotic for any legal practitioner to attempt to or pursue a course of conduct that is capable of undermining or eroding the confidence of the public, on the judicial process and the Courts of this country.”
To this end, I must observe that the beauty of language in the legal profession is the restraint exercised in its use. It is the tool of the profession. This is a classic case of litigation with exasperation otherwise there cannot be any better explanation. The submission of learned counsel for the Appellant is antithetic to the desperate but hopeless leeway of posing to win a case at all cost.
I cannot comprehend how the Appellants counsel could allow his vision to be beclouded by some other consideration other than legal issues, and he wants a stamp of approval for his submission at all cost. However, miracles do not happen in litigation at least not in our adversary system.

In conclusion, having resolved the two issues against the Appellant. I find no merit in this Appeal. It is dismissed accordingly. No order for cost.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Talba, JCA. I fully agree with the admirable resolution of the two issues for determination in this appeal. I adopt them as mine to also dismiss this appeal for lacking in merit. I abide by all the consequential orders of my learned brother, including the order on costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I read a preview of the Judgment just read by My Learned Brother, ABUBAKAR M. TALBA – JCA and I am in agreement with his reasoning and conclusions in dismissing the Appeal as lacking in merit. I have nothing more to add to a well-written Judgment by my learned Brother.
I abide by the consequential orders made thereto.

Appearances:

R. T MUSTAPHA, with him, D.D GYANGYANG and P.S NTEM For Appellant(s)

IBRAHIM ABDULLAHI, with him, SHAMSU A. DAUDA – for 1st Respondent For Respondent(s)