VINCO EGBOCHIE VENTURES LTD & ANOR v. UBN & ANOR
(2022)LCN/16606(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, September 23, 2022
CA/B/535/2018
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
1. VINCO EGBOCHIE VENTURES LIMITED 2. VINCENT E. EGBOCHIE APPELANT(S)
And
1. UNION BANK OF NIGERIA PLC 2. GEORGE O. AKWAZIE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE BEST WAY OF PROVING PAYMENT OF MONEY INTO A BANK ACCOUNT
In Saleh vs. Bank of the North Ltd (2006) LPELR-2991(SC), the Supreme Court on how payment into an account may be proved held that: “The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgement showing on the face of it that the bank has received the payment. A bank teller duly stamped with the official stamp of the bank and properly initialled by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt needs not prove more unless payment is being challenged, see Ishola v. S.G.B. (Nig.) supra and Aeroflot v. U.B.A. (1986) 3 NWLR (Pt.27) 188.”.
See also Ishola vs. Societe Generale Bank (Nig) Ltd (1997) 2 NWLR Part 488 page 405. Further in First Bank vs. Oronsaye (2019) LPELR-47205(CA), this Court, per Ogunwumiju, JCA, (as she then was) relied on the Supreme Court decision in Saleh v. B.O.N Limited (2006) 6 NWLR Pt. 976 Pg. 316 at 327 and held that: “In a situation such as this, where the appellant claimed to have repaid the loan overdraft against the statements of accounts tendered by the respondent bank showing non-payment by the appellant, the proof of payment by the mere “ipse dixit” of the appellant cannot be sufficient proof of repayment of the debt. See Debs v. Cenico (Nig.) Ltd. (1986) 6 SC. 176 (1986) 3 NWLR Pt. 32 Pg. 846. The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgment showing on the face of it that the Bank has received the payment. A bank teller duly stamped with the official stamp of the Bank and properly initialed by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt needs not prove more unless payment is being challenged.” PER ORJI-ABADUA, J.C.A
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The suit that generated this appeal was instituted by the Appellants before the Edo State High Court sitting at Uromi, on the 5th February, 2010 against the Respondents herein. Their pleading was amended twice then necessitating their filing a Further Amended Joint Statement of Claim dated the 6th June, 2016. The 1st Appellant was a customer of the 1st Respondent while the 2nd Appellant was the 1st Appellant’s Managing Director. In their Further Amended Joint Statement of Claim, the Appellants claimed the following reliefs:
“a. A declaration that the claimants is not owing the 1st defendant the sum of N68,175,802.64 (Sixty Eight Million, One Hundred and Seventy-Five Thousand, Eight Hundred and Two Naira, Sixty Four Kobo) being loan and interest granted by the 1st defendant to the claimants.
b. An order directing the 1st defendant to account for the actual indebtedness of the 1st claimant and produce all the statement of accounts of the 1st claimant for perusal.
c. A declaration that the 1st defendant has no right under the law of contract to vary the interest rate of the loan agreement entered into by the claimants and 1st defendant to the detriment of the claimants.
d. A declaration that the variation of the loan agreement by the 1st defendant from N56,000,000.00 (Fifty-Six Million Naira) to N30,000,000.00 (Thirty Million Naira) and the interest rate of 19% to 30% unilaterally is unlawful, illegal, null and void.
e. A declaration that the 1st defendant should credit the account of the claimants with the money wrongly deducted amounting to N46,881,956.79 and N81,956,79.00.
f. A declaration that the 1st defendant is liable to pay to the claimants the sum of N200,000,000.00 (Two Hundred Million Naira) being the estimated Profit the claimants should have made from the business for the period of 2006 till date when the 1st defendant unlawfully disrupted and destroyed the business of the claimants unlawfully.
g. The sum of N5,000,000.00 (Five Million Naira) damages for breach of contract.
h. An order of perpetual injunction restraining the defendants, their agents servants and privies from selling or disposing of the claimants’ property used as collateral security for the loan by way of auction sale.”
The Respondents as the defendants filed their Defendants/Counter-Claimants’ Joint Statement of Defence and Counter-Claim dated the 18th February, 2013. They counter-claimed against the Appellants jointly and severally thus:
“(a) declaration that the transaction between the Defendant/Counter-Claimant is legal mortgage.
(b) A declaration that the 1st Claimant is liable to pay the Defendants/Counter-Claimants:
(i) The sum of N52,087,320.91 (Fifty-Two Million, Eighty-Seven Thousand, Three Hundred and Twenty Naira, Ninety-One Kobo) being outstanding debt and accruable interest in Account No. 1361020000032.
(ii) The sum of N28,400,657.28 (Twenty-Eight Million, Four Hundred Thousand, Six Hundred and Fifty-Seven Naira, Twenty-Eight Kobo) being outstanding balance in Account No. 3610200000.
(c) A declaration that the 1st Claimant is liable to pay all interest accruable to this account until debt is realized.
(d) Cost of this suit.”
The lower Court delivered its judgment on the 28th March, 2018 and dismissed the Appellants’ claims (a), (b), (c), (d), (g) and (h) and found the Respondents not liable to the Claimants’ claim. It found merit in the counter-claim of the 1st Defendant against the Claimants jointly and severally and then ordered as follows:
“a. A Declaration that the transaction between the 1st Claimant and 1st Defendant/Counter-Claimant is a legal mortgage.
b. A Declaration that the 1st Claimant is liable to pay the Defendants/Counter-Claimants:
(i) The sum of N52,087,320.91 (Fifty-two million, eighty-seven thousand, three hundred and twenty Naira, ninety-one Kobo) being outstanding debt and accruable interest in Account No 1361020000032
(¡i) The sum of N28,400,657.28 (Twenty-eight million, four hundred thousand, six hundred and fifty-seven Naira, twenty-eight Kobo) being outstanding balance in Account No: 3610200000.
(c) A Declaration that the 1st Claimant is liable to pay all interest accruable to this account until debt is realized. Court is unable to grant prayer (d) that the Claimants be made to pay cost at this suit.”
The Claimants displayed their displeasure with the said judgment via a Notice of Appeal filed on the 4th April, 2018 which was founded on five grounds of appeal. The record of appeal was compiled and transmitted out of time on 5/11/2018. It was however regularised on 11/10/2021 and consequent upon which the Appellants filed their Appellants’ Brief of Argument on 24/11/2021. The Respondents in turn filed their Respondents’ Brief of Argument on 21/12/2021. The Appellants’ Reply Brief was filed on 7/2/2022.
The Appellant postulated two issues in their Brief of Argument for determination herein thus:
“(a) Considering the state of pleadings and the evidence adduced by parties, whether the trial Court was right in reaching the conclusion that the Appellants have failed to establish their claims on the preponderance of evidence and thereby dismissing the Appellants’ claim in its entirety.
{Distilled from Grounds 1, 2 and 4}.
(b) Whether the trial Court was not in grave error in granting the counterclaim of the Respondents. {Distilled from Ground 3}.”
The Respondents adopted the issues as were projected by the Appellants.
The submissions of respective Counsel for the parties had been adequately considered by this Court. The evidence of CW1, CW2, the Claimant and evidence of the defence witnesses, DW1 and DW2 had also been deeply studied.
The two issues presented by the Appellants can be conveniently considered together. The question is whether the lower Court was right in dismissing the claims of the Appellants and granting the counter-claim of the Respondents. What evidence did the Appellants adduce in proof of their assertions.
CW1, Dr. Augustine Ehigegbon Akhidime, a Licensed External Auditor, adopted his statement on oath dated 5/12/201. He tendered his Audit Reports as Exhibits A and B. He said under cross-examination that there was a facility granted 1st Claimant by the 1st Defendant. He could not remember the exact amount. He later said that the facility is for about N30 million. He also said that Banks have the right to charge interest based on mutually agreeable terms. He said he was in possession of the legal mortgage but he did not look at that as his mandate was not to vet the contract. He sent his report to his client who did not tell him what he did with the report. He was not at the meeting where Elder J. A. Ehizogie recorded minutes of meeting held to reconcile the account. There were two meetings and he attended one at Motel Plaza.,
Elder J. A. Ehigozie, an Accountant in the 1st Appellant’s company testified as CW2. He stated that “from the document prepared by external auditors the total money the defendant is owing the Claimant is about (N48.6million made up of owing debts by the bank, non-crediting cheques paid in by customer (1st Claimant) wrong application of interest rate they (the defendants) were owing 30% per annum instead of 19% approved for the customer.”
Under cross-examination, he said he did not prepare Exhibit B but the statements sent to them were what the external auditors used to arrive at Exhibit B. He knew the 2nd Claimant used his building facilities to secure the loan. He asserted that the claimant’s accounts with the 1st defendant became a beehive for fraudsters who manipulated the figures to the detriment of the claimant.
The 2nd Claimant testified as the claimant and adopted his two statements on oath dated 5/11/2012 and 3/6/2013 respectively as his evidence in chief and tendered several documents. He identified Exhibits A and B as the audit report and from those reports, the defendants are the ones owing him, that he is not indebted to the defendants.
Under cross-examination, he said that they are not indebted to the 1st defendant with reason. There was fraud on his account. The money he was paying to the Bank at Uromi was being diverted into other accounts in Benin in journal account. The Audit Report contains the current statement of account as at that date. The year he obtained the N20 million from the 1st defendant is the book (exhibit) tendered in Court. He applied for a renewal of the loan which application was refused. He had access to his statement of account. At the time the different cheques were dishoured he had sufficient funds in my account from the Guinness Finance fund. It is not true that before this matter came to Court he was indebted to the Bank to the tune of about N68 million. The loan provided was guaranteed by Guinness. He used two houses as security for loan transaction. It was a Bank customer relationship and he reported to their Lagos head office and not the police. Their headquarters wrote to him pleading for patience and promised to investigate his complaint against their Uromi Branch. He further stated that Journal account is an account set up by the 1st defendant for diverting funds of customers. It is not traceable to any customer’s account. It was set up to defraud customers. He was told that the money in the three accounts had been merged.
Instead of 19%, they were charging 30% interest. There was the problem of fraud on his account. By Exhibit E it was agreed that the defendant could review interest at will. The facts deposed to in his statement on oath are no distortion of issues to avoid repayment of loan facility. The documents he used as collaterals are still with the Bank. He claimed he paid money into the Bank which money was diverted to other accounts.
The audited records show how much he paid and the interest rate.
No other evidence was procured to prove the allegations made by the Appellants regarding charging of interest rate and the alleged fraudulent transactions carried out on the account of the Appellants by the staff of the 1st Respondent and no details of the transaction were given. There was also no proof as to how the loan facility had been liquidated.
In its critical appraisal of the evidence adduced before it, the lower Court particularly at pages 879 to 890 of the record found as a fact that the parties embodied the terms of their agreement in written documents, that there are contracts in writing between the parties embodied in contract documents tendered and admitted as Exhibits E and K. It found that the 1st Appellant borrowed money from the 1st defendant. That via Exhibit E dated 4/11/03, the 1st Respondent approved facility of N30 million at the request of the 1st Appellant which was to expire on 2/10/2004. Then upon the request of the 1st Appellant for a review of the credit facility, the 1st Respondent granted loan facility of N50 million to the 1st Appellant and it was to expire on 9/7/06. It found that the parties agreed in Exhibits E and K that the rate of interest are subject to variation at any time at Banker’s option without prior notice. The interest rate was then fixed at 19%, COT 5%, management processing fee 3% flat, penalty 2.5% flat per annum. The Claimants saw these terms and signed the contract. It found that there existed concrete agreement between the parties on the above issue, therefore, where the bank charges interest rate in respect of a loan, customer cannot lawfully complain that the Bank has arbitrarily or unilaterally varied the original rate (in the instant case from 19% to 30% at will and without the prior knowledge or consent of the customer. Such variation is well within the express in terms of the loan agreement.
The said loan was guaranteed by the 2nd Appellant using three properties owned by the 2nd Appellant who further secured the said loan with a personal guarantee which it found contradicted the evidence of the 2nd Claimant that the loan was secured by Guinness Nigeria Plc. It found from the evidence adduced before it that the 1st Respondent gave out a loan upon title deeds deposited by the 2nd Appellant as security.
The Court further found that the claim of excess charges of interest is not borne out by credible evidence before it and the documents executed by the Appellants. The Court observed that several allegations were made against the 1st Defendant ranging from fraudulent manipulation of their account by officials of the 1st Respondent, conversion of money paid by them at Uromi Branch for other purposes, that the Journal Account was set up to divert customer’s fund, to defraud customers. They were not reported to the Police and they were not proved beyond reasonable doubt since they were allegations of crime, that they were mere allegations and no credible evidence was adduced to substantiate them. It equally found that the issue of anticipated profit was not specifically pleaded and not strictly proved. The lower Court further opined that the 1st defendant gave out a loan upon title deeds deposited by the 2nd defendant as security which created a legal mortgage, that the relationship between the Claimants and the 1st Defendant is that of a mortgagor-mortgagee.
The question now is, has the 1st Appellant liquidated the credit facility granted to it by the 1st Respondent? This can only be established by facts and documentary evidence. In Saleh vs. Bank of the North Ltd (2006) LPELR-2991(SC), the Supreme Court on how payment into an account may be proved held that: “The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgement showing on the face of it that the bank has received the payment. A bank teller duly stamped with the official stamp of the bank and properly initialed by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt needs not prove more unless payment is being challenged, see Ishola v. S.G.B. (Nig.) supra and Aeroflot v. U.B.A. (1986) 3 NWLR (Pt.27) 188.”.
See also Ishola vs. Societe Generale Bank (Nig) Ltd (1997) 2 NWLR Part 488 page 405. Further in First Bank vs. Oronsaye (2019) LPELR-47205(CA), this Court, per Ogunwumiju, JCA, (as she then was) relied on the Supreme Court decision in Saleh v. B.O.N Limited (2006) 6 NWLR Pt. 976 Pg. 316 at 327 and held that: “In a situation such as this, where the appellant claimed to have repaid the loan overdraft against the statements of accounts tendered by the respondent bank showing non-payment by the appellant, the proof of payment by the mere “ipse dixit” of the appellant cannot be sufficient proof of repayment of the debt. See Debs v. Cenico (Nig.) Ltd. (1986) 6 SC. 176 (1986) 3 NWLR Pt. 32 Pg. 846. The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgment showing on the face of it that the Bank has received the payment. A bank teller duly stamped with the official stamp of the Bank and properly initialed by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt needs not prove more unless payment is being challenged.”
What all these entails is that there must be adequate proof of repayment of the facility or loan overdraft by the Appellant and none was provided during the case for the claimants. This Court is in tandem with the findings of the lower Court based on the evidence before it which this Court, had itself, thoroughly scrutinised. In the end and for all the reasons I have given above, I find this appeal unmeritorious and therefore dismiss the same with no order as to costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the opportunity of reading the draft copy of the judgment just delivered by my learned brother THERESA NGOLIKA ORJI-ABADUA, JCA. I agree with the conclusion reached thereat in dismissing the appeal.
I too dismiss the appeal for the same reasons and abide by the order as to cost made in the lead judgment.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft, the judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA.
I agree with his reasoning and conclusions.
Appearances:
B. O. Iluobe, Esq. For Appellant(s)
Chief R. E. O. Esite For Respondent(s)
