WAHAB AMOO & SONS (NIG.) LTD v. DIAMOND BANK PLC (2021)

WAHAB AMOO & SONS (NIG.) LTD v. DIAMOND BANK PLC

(2021)LCN/15870(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, June 22, 2021

CA/L/428/2018

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

WAHAB AMOO & SONS NIGERIA LIMITED APPELANT(S)

And

DIAMOND BANK PLC. RESPONDENT(S)

RATIO

WHETHER OR NOT OPINION OF ANY PERSON AS TO THE EXISTENCE OF A FACT IN ISSUE IS INADMISSIBLE

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Lagos State High Court in Suit No. LD/396/C/MW/2015 delivered on 8th February, 2018 by S. I. Sonaike J. The Respondent granted the Appellant overdraft facility in the sum of N40 million which was later increased to N50 million vide offer letters dated 26th August 2011 and June 9th, 2014 respectively. The Appellant accepted the interest rate of 20% per annum as payable for the first offer and 23% per annum for the 2nd offer which was subject to review in line with changes in money market conditions as stated in the offer letters.

Part of the conditions for the grant of the facility included domiciliation of the Appellant’s operational earnings with the Respondent bank, payment of periodic interest as and when due with a minimum monthly turnover of N75 million in the account. The Managing Director of the Appellant, Alhaji Wahab Amoo guaranteed the facility and mortgaged his personal property at Plot 3, Block 81 Hakeem Dickson Street, Lekki Phase 1, Lagos covered by Deed of Assignment dated 7th July, 2005 and registered as 62/62/2240 at the Lagos State Lands Registry, Ikeja as security for the facility.

The Appellant enjoyed the facilities between 2011 and 2015. When the facilities became due and the Respondent started demanding for repayment. The Appellant filed the suit before the lower Court claiming special damages in the sum of N3,512,993,873.59 as excess and spurious charges on the Appellant’s accounts plus alleged deposits paid into its account and 100% penalty payable for failure to reverse the alleged debits. Both the Appellant and the Respondent called one witness each and tendered some documents. The lower Court dismissed the case of the Appellant and granted the Counter-Claim of the Respondent. Dissatisfied, the Appellant filed its Notice of Appeal on 12th February, 2018. The Amended Appellant’s Brief was filed on 28/02/2020 but deemed filed and served on 25/03/2021. The Amended Respondent’s Brief was filed on 30/11/2020 but deemed as filed and served on 25/03/2021. The Reply Brief was filed on 1/12/2020 but deemed filed and served on 25/03/2021. In the amended Appellant’s Brief of arguments the following issues are formulated for determination:
1. “Whether having regard to the evidence adduced in this case, the learned trial Judge was right in refusing to acknowledge the fact that the Appellant’s Consultants ‘a fortori reports’ as well as the subsequent 100% penalty letters for 14 days non-refund breach, which occasioned the cause of action in this suit were never challenged by the Respondent. (Ground 1).”
2. “Whether the learned trial Judge did not err in law when she dismissed the Appellant’s claim in its entirety and entered judgment in favour of the Respondent’s counter-claims in the sum of N60,000,000.00 without any cogent and compelling evidence before the Court to support the conclusion by the lower Court.(Ground 2).”
3. “Whether the lower Court erred in law and occasioned grave miscarriage of justice when it held that the testimony of CW1 is hearsay evidence because CW was never a member of the Appellant’s company nor connected with the Appellant other than he was engaged by the Appellant. (Distilled from Ground 3 of the Notice of Appeal).”
4. “Whether the lower Court erred in law, misdirected itself and occasioned grave miscarriage of Justice when it held that the two Forensic Reports (Exhibits CW12, CW13) and Summary Report (CW3) were not sufficient proof of the Appellant’s claims because the Statement of account that CW relied upon to prepare Exhibits CW12, CW13 and CW3 were not before the Court, that the Reports were unreliable for failure of CW to establish the source of the Reports and that it appears that the Appellant’s Forensic Expert simulation and picking of date are from an unknown source. (Distilled from Ground 4 of the Notice of Appeal).”
5. “Whether the lower Court erred in law when it held that the Respondent was right for not controverting Exhibits CW12, CW13 and CW3 (the Forensic Reports) because the Appellant did not Complain about the infraction itself and that its Consultant who complained of same was not introduced to the Respondent by the Appellant. (Distilled from Ground 5 of the Notice of Appeal).”
6. “Whether the Court erred in law when it held as follows “I accordingly found upon evaluation of this evidence especially Exhibits DW15, DW18, DW19 and DW26(b) that Defendant to counter-claim cannot resile on a spurious claim of excess charges and interest, from its admission of the indebtedness which he had earlier admitted” (Distilled from Ground 6 of the Notice of Appeal).”
7. “Whether the Court erred in law by not pronouncing or makes its finding known on the issue of validity of Exhibit DW16 (i.e. the Board Resolution dated 26/08/2011 which Parties at the lower Court joined issue on. (Distilled from Ground 7 of the Notice of Appeal).”
8. “Whether the original statement of account admitted in Evidence as Exhibit CW1(i) is a legal evidence, in order words, whether the statement of account admitted as Exhibit CW1(i) ought to be admitted in evidence. If the said statement of account was wrongfully admitted, whether same can be expunged at this stage of final address. (Distilled from Ground 8 of the Notice of Appeal).”

On issue one it was submitted that the forensic consulting reports – Exhibits CW12 and CW13 which can be found on pages 61-91 of Vol. 1 of the record were never challenged by the Respondent as contained and pleaded in the Appellant’s statement of claim filed. That the Respondent never challenged the correctness or otherwise of the excess bank charges and infractions so extracted from the Appellant’s statement of accounts and the offer letters which are the Respondent’s documents contained in the forensic reports.

That the Respondent did not also deny or challenge the receipt of the 100% penalty letters both dated 17/03/2015 and 31/03/2015 – Exhibits CW1 and CW2 at pages 294-295 of Vol. 1 of the record. According to Counsel, the forensic consulting reports (Exhibits CW12 and CW13) and the 100% penalty letters (Exhibits CW1 and CW2) tendered and relied upon by the Appellant in proof of its case having not been challenged or controverted by the Respondent ought to be deemed admitted by the lower Court and relied upon by trial Judge without proof by the Appellant – Boshali vs. Allied Commercial Exporters (1961) ALL N.L.R. 912. He urged the Court to resolve the first issue in favour of the Appellant.

As to issue two, learned Counsel submitted that the Appellant called one witness Chief Ori Adeyemo (CW) who gave evidence of the converted and concealed sum styled excess and illegal charges in the accounts of the Appellant with the Respondent. That the witness who prepared and tendered the forensic reports – Exhibits CW12 and CW13, testified in Court that he relied on the CBN guide to bank charges of 01/01/2004 as well as the CBN monetary, credit, foreign trade & exchange policy Circular No. 39 of 01/01/2012 as well as No. 40 of 01/01/2014, as the basis of his computation in the reports regarding the Appellant’s claim in this case.

That this piece of evidence was not controverted or discredited by the Respondent. According to Counsel, the Appellant is entitled to be notified of any change in the rate of interest by the Respondent so as to take informed decision whether or not he is to continue in the relationship between it and the Respondent – FBN Plc. vs. Mamman (NIG) LTD [2001]3 WRN 58.

That the Respondent’s failure to communicate variation of interest rates to the Appellant nullifies such variation and the Appellant is thus entitled to a refund of all the excess charges resulting from the Respondent’s unilateral alteration of the rate of interest. On the counter-claim it was contended that is trite that he who asserts must prove. See – Section 131(1) and (2) of the Evidence Act, 2011.

That apart from the documentary evidence i.e. the letters of offer, letters of demand dated 10th November 2014, 16th December 2014, 15th May 2015 and 12th October 2015 marked as Exhibits DW21-DW24 (a) & (b) as well as the Appellant’s statement of account Exhibit DW26(b), tendered by the Respondent, the Respondent did not give any oral evidence to show or prove how the alleged debit balance of N61,947,747.59 in its counter-claim was arrived at. By just tendering the statement of account Exhibit DW26(b), without adducing oral evidence to put the exhibit in proper perspective so as to establish the counter-claim, the counter-claim is not proved – Bilante International Ltd vs. Nigerian Deposit Insurance Corporation (2012) 15 NWLR (Pt. 1270) 407 at 428-429. According to Counsel, DW under-cross examination said that a statement of account is not a prima facie proof of the alleged indebtedness against the Appellant until the entire contents are proven by oral evidence – Samabey International Communications Ltd. vs. Celtel Nigeria Ltd (2013) LPELR-20758(CA) and Section 51 of the Evidence Act 2011.

He further submitted that the Respondent has failed woefully to prove its counterclaim against the Appellant having failed to give oral evidence to show or establish how the Appellant’s alleged indebtedness was arrived at. He respectfully urged this Court to so hold.
On issue three, learned Counsel submitted that CW 1 needs not be a member of Appellant’s bank to testify having investigated the account and derived its findings from his investigation. That the testimony of CW 1 is therefore not based on what the Appellant told him but on the entries in the statements of accounts. Learned Counsel further submitted that CW 1 is a professional Chartered Accountant, certified Forensic Accountant and an Expert Witness and that his testimony is based on primary evidence – Exhibits CW12, CW13 and CW3 not hearsay evidence.
As to issue four, it was the submission of Counsel that the consultant did not rely on any other statement of account to prepare Exhibits CW 12 and CW 13 other than Exhibit DW 26 B. That the statement of account was before the Court contrary to the finding of the lower Court because same was tendered by the Defendant as Exhibit DW 26B and that CW stated in his written deposition on oath and under cross-examination that he was given a copy thereof which he investigated and came up with Exhibits CW12, CW13 and CW 3.

Regarding issue five, it was argued that Exhibits CW 3, CW 12 and CW 13 were not controverted by the Respondent as there was no response thereto notwithstanding that the Respondent acknowledged the receipt thereof. That these pieces of evidence relied upon by the lower Court to arrive at its decision to the effect that the Appellant itself did not complain about the infractions in its account and that the Appellant’s consultant who complained of same on behalf of the Appellant was not introduced to the Respondent by the Appellant were not pleaded by the Respondent. According to Counsel, these pieces of evidence having been not pleaded by the Respondent in its pleadings ought to have been expunged by the lower Court because facts not pleaded go to no issue – Onwuka vs. Omogui (1992) LPELR-2719 (SC), (1992) NWLR ( Pt. 230) 393.

In arguing issue six, learned Counsel submitted that parties did not join issues on alleged admission of the debt by the claimant, that the issue of alleged admission of debt by the claimant was raised for the first time during the delivery of the judgment of the lower Court. That the Respondent did not plead, prove nor premised its case on the alleged admission of the debt by the Appellant at the lower Court. According to Counsel, Exhibits DW15, DW18, DW19 and DW26 (b) do not amount to admission in law as no such admission is contained in any of the documents under reference. That from the foregoing, this Honourable Court has the jurisdiction to consider the said Exhibits DW15, DW18, DW19 and DW26 (b) and make proper findings.

He urged this Court to set aside the Judgment of the trial Court and allow the appeal. On issue seven, it was submitted that the lower Court erred in law by not pronouncing and making its findings known on the issue of validity of Exhibit DW16 (the Board’s resolution dated 26/08/2011) which parties at the lower Court joined issues on. That if the lower Court had evaluated Exhibit DW16, it would have found out that there was no valid contract between the parties. The lower Court ought to have pronounced on the validity of Exhibit DW16 parties having joined issues thereon.

The intention of parties it was further submitted was that there should be a receipt of board resolution by the Respondent authorizing the borrowing and acceptance of the facility by the Appellant. That no such board resolution extract was produced before the lower Court. That one of the elements of a valid contract is a valid acceptance and as such there was no valid acceptance between the purported contracting parties herein.

According to Counsel, there is no place in the Respondent’s pleadings where this alleged error that borders on the board’s resolution was pleaded and that the issue of the subject error was being raised for the first time in the Respondent’s final written address and therefore an afterthought. On issue eight, it was submitted that the cause of action of the Appellant in this matter is the correctness, accuracy and reliability (or otherwise) of the original statement of account tendered and admitted as Exhibit Exhibit DW 26B before the lower Court.

According to Counsel, a closer look at the Defendant’s pleadings, written depositions on oath, the Defendant’s witness oral evidence under cross-examination, there is no place where the Defendant gave evidence regarding the statement of account in compliance with the provisions of Section 90(1)(e) (i-iv) of Evidence Act, 2011 to wit:
Section 90 (1)(e) – In paragraph (h), the copies cannot be received as evidence unless it is first be proved that –
(i) that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank,
(ii) that the entry was made in the usual and ordinary course of business,
(iii) that the book is in the control and custody of the bank, which proof may be given orally or by affidavit by an officer of the bank, and
(iv) that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit.

That Section 90(1)(e) emphatically states that the statement of account cannot be received in evidence unless the above itemised facts are proved; and that there is nowhere in the record of the Court where the Respondent either gave these pieces of evidence orally or in writing. According to Counsel, the Respondent bank did not give any oral or affidavit evidence as to the existence of any account statement before the Court which makes the exhibit inadmissible and same ought to be expunged from the records – Yesufu vs. African Continental Bank Ltd (1976) 1 All NLR 328 at 272. He urged this Court to allow this appeal, set aside the judgment of the trial Court and grant the reliefs sought by the Appellant.

In the amended Respondent’s Brief, the following issues are formulated for determination thus:
1) “Whether the lower Court was right when it dismissed the claim of the Appellant. (Distilled from grounds 1,3, 4 and 5 of the amended Notice of Appeal)”
2) “Whether the lower Court was right when it granted the Respondent’s counter-claim. (Distilled from grounds 2,6,7 and 8 of the amended Notice of Appeal)”

On issue one, it was submitted that although, the Respondent did not challenge the admissibility of exhibits CW12, CW13 and CW3 tendered by the Appellant to prove its claim the exhibits called forensic reports were neither probative or sufficient to prove the Appellant’s claim as held by the lower Court. According to Counsel the forensic consultant engaged by the Appellant as its witness failed to tender in Court the particulars of the statements of account and the offer letters, he claimed were the data sources/basis from which he simulated the Appellant’s claim. That Exhibit CW12 at pages 77 to 90 referred to numerous offer letters which were not tendered before the Court; yet the referred statements of account and offer letters formed the basis or sources of the alleged analysis with which CW1 came to his conclusions.

Counsel therefore submitted that the lower Court was in firm terra to hold that it cannot rely on reports of which the source of information forming the basis was not exposed to the Court. That the Appellant was not able to prove that it deposited N1.9 Billion into its account with the Respondent or that there were spurious and excessive charges in the account.

According to Counsel, it is trite law that the opinion of an expert is not binding on the Court especially if the Court finds it unreliable as in this case – Fayemi vs. Oni (2009) 7 NWLR (Pt. 1140) pg. 223 at 277-288. That where the lower Court has found as a fact, relying on the evidence of CW1 that his figures were simulations meaning assumptions/speculation; it cannot be the basis for the lower Court to grant N3.5Billion. That the Appellant failed to prove the alleged facts by failing to show by evidence what the interest rate was at the time the facility was granted, what it believes it ought to be and what was charged on the account as excess to establish its claim.

It was the submission of Counsel that the lower Court held that the Appellant intentionally withheld documents that can invalidate CW 3, CW12 and CW 13 contrary to Section 167 (d) of the Evidence Act, 2011 as shown at page 624 of the printed record – Anazodo vs. P.I.T (Nig) Ltd (2008) 6 NWLR 529 543. That on the claim of deposit in the sum of N1,962,542,385.01 with 100% penalty in the sum of N1,533,866,150.00, the Appellant did not provide any evidence to prove the alleged deposits made into the account either by bank teller or show any acknowledgment or otherwise that the Respondent received the money into the account. That during cross-examination when the witness was asked if he had evidence of deposit or withdrawal in respect of the account, he said “I was not shown any evidence to the effect that money was paid into the account”. He urged this Court to hold that the lower Court was right to have dismissed the claim of the Appellant for special damages having failed to prove its claim against the Respondent.

As to issue two, it was submitted that having admitted enjoying the facility as can be gleaned from the Appellant’s pleadings the onus of showing positive evidence that it has fully repaid the facility squarely rests on it – A.A. Macauly vs. NAL Merchant Bank Limited (1990) 4 NWLR (Pt. 144) 283 at 308. According to Counsel, the Appellant merely asserted in Paragraph 6 of its statement of claim, at page 6 of the record of appeal that it has repaid without demonstrating by evidence how it repaid the facilities. That this is the kernel of this appeal against the judgment on the counter-claim. That there was no evidence that the Appellant was cajoled or forced into accepting the facility and the terms thereto as falsely alleged in Paragraph 30 (iii) of the claimant’s witness statement on oath at page 32 of the record of appeal.

It was the further submission of Counsel that the Appellant voluntarily entered into the contract and signed the acknowledgment to accept the terms and conditions of the offer. According to Counsel, the agreement became a binding contract and the Appellant cannot be heard that it was unduly influenced and deceived into entering the contract. – Federal Government of Nigeria vs. Zebra Energy Limited (2002) 18 NWLR (Pt. 798) 162.

On the issue of interest charged into the account, it was submitted that the Appellant cannot rely on the claim of excessive charges. That it is clear from both the documentary and oral evidence before the Court that the Respondent did not unilaterally change interest rate without bringing same to the attention of the Appellant. That the Respondent by Exhibit DW20 (letter dated 28th January, 2015) gave the Appellant notice of upward review of the interest rate as agreed in the offer letters. That the Court was therefore not raising any new issue of its own for the first time neither is it true that the issue of admitting the debt was not pleaded or part of the Respondent’s claim. In the Reply Brief, it was submitted that the submission of the Respondent in Paragraph 4.4 of the Respondent’s Brief of Argument, that Section 167 (d) of the Evidence Act, 2011 does not apply to the instant appeal because the statement of account that the Respondent claimed was allegedly withheld by CW1 was actually tendered by the Respondent before the lower Court; CW1 made it clear that he relied on the Appellant’s statement of account maintained with the Respondent.

That there was no any other statement of Account maintained by the Appellant with the Respondent other than the one tendered by the Respondent at the lower Court, as such CW1 could not be said to have withheld any statement of account. According to Counsel, the Respondent did not state in its pleadings and led evidence that the Appellant maintained any other account with the Respondent other than the one tendered by the Respondent at the lower Court. That the testimony of CW is not based on what the Appellant told him but on the entries in the statement of account. That CW indeed proved the excess, spurious, and extraneous charges he alleged in his Forensic Report.

According to Counsel, the parties did not agree that interest rate be subjected to fluctuation of the money market because this is not contained in Exhibit DW15 where the Respondent purportedly derived its power to charge interest from.

That the Respondent failed to show either by Exhibit DW15 or otherwise where it was agreed by parties that the interest rate will not be fixed but will be market driven. Parties are bound by the terms of their contract.

That the Respondent having failed to challenge exhibits CW10, CW12 and CW13 by not responding to them cannot be heard saying that the exhibits are not sufficient proof of the Appellant’s claim because it is trite law that whatever is not controverted is deemed admitted and whatever is admitted needs no further proof – Anason Farms Limited vs. NAL Merchant Bank (Supra).

As regards issue two, it was submitted that the Respondent did not join issue with the Appellant at the lower Court as regards the authority of CW1 to prepare the subject report. That the authority of CW1 to prepare the Report was not questioned either in writing or during cross-examination.

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RESOLUTION OF THE APPEAL

The Appellant by its pleadings claimed entitlement to a total of N3.5 Billion. It asserted that the Respondent charged excess spurious bank interest and charges amounting to N9,309,103.88 into its account which attracted 100% penalty in the sum of N7,276,234.70 and also alleged that it deposited the whooping sum of N1,962,542,385.01 into its account with 100% penalty on alleged total deposit in the sum of N1,533,866,150.00 bringing its total claim to the sum of N3,512,993,873.59.
4.4. The Forensic Consultant (CW1) engaged by the Appellant as its witness failed to tender in Court the particulars of the statements of account and the offer letters he claimed were the data sources/basis from which he simulated the Appellant’s claim. The onus is on the Appellant to prove that it deposited N1.9 Billion into its account with the Respondent and that there were spurious and excessive charges in the account entitling Appellant to penalty reimbursements into its account which it failed to do in the suit at the lower Court. For the evidence of the CW1 to be admissible as an expert it must be an opinion or sets of opinions formed on admitted or proven facts.

This is because by Section 67 of the Evidence Act 2011, the opinion of any person as to the existence or non-existence of a fact in issue or relevant fact in issue is inadmissible except as provided in Section 68 to 76 of the Act. The provision for opinion of experts under Section 68 of the Evidence Act 2011 is not to render opinion as facts, but opinion on facts.
In Ladoja vs. Ajimobi (2016)10 NWLR (Pt. 1519) 87 at 167 paragraph D it was held that “Opinion is what a person thinks about something based on the person’s personal judgment rather than actual facts. An opinion also means what in general people think about something…..It connotes or conveys a professional judgment of a professional or expert”.
4.5. Thus, when the lower Court held that the documentary facts (offer letters and statements of account used by CW 1 to write exhibits CW3 CW 12 and CW 13) were not tendered by CW1 to show where he got facts upon which he opined, the Court was on firm ground to declare his evidence as hearsay or unreliable. Furthermore, it is trite that the opinion of an expert is not binding on the Court especially if it finds it unreliable – Fayemi vs. Oni (2009) 7 NWLR (Pt. 1140) 223 at 277-288.
4.6. The evidential test of admissibility and the probative value is about the quality of the evidence not the qualification of the witness. The lower Court therefore rightly held in its judgment at page 624 of the record of appeal thus: “Though the claimant through his witness in an attempt to show the alleged spurious charges, tendered reports of the Forensic Consultant (Exhibits CW3, CW12 & CW13 dated 3rd March, 2015 and 3rd March, 2015 respectively). It is important to note that the figure arrived at on the report were based on simulated figures and referred to rates in offer letters that were not before the Court. Simulation means that the figures were based on assumptions/speculations”.

The above findings were not appealed against by the Appellant. The precept of the law is that an Appellate Court is to leave such factual findings not appealed against undisturbed. Where therefore the lower Court has found as a fact, relying on the evidence of CW1 himself that his figures were simulations meaning assumptions/speculations such evidence cannot be relied upon to grant a claim of N3.5Billion. The particulars of the Appellant’s claims for special damages are as follows:
(a) Excess and spurious bank charges and interest at the prevailing CBN, MMR/MPR in the sum of N9,309,103.88
(b)Total gleaned consequential deposit in the sum of N1,962,542,385.
(c) 100% penalty on excess charges in the sum of N7,276,234.70
(d) 100% penalty on gleaned alleged total deposit in the sum of N1,533,866,150.00

Special damages must be strictly pleaded. All particulars must be itemized and evidence meticulously adduced – Provost LACOED vs. Edun (2004) 6 NWLR (Pt. 869) 476.

The Appellant has alleged excess, illegal and spurious bank charges amounting to N9,309,103.88 through fraud and conversion by the Respondent with 100% penalty of N7,276,234.70 on the excess charges. The Appellant however failed to prove the alleged facts. He also failed to show by evidence what the interest rate was at the time the facility was granted, what it believed it ought to be and what was charged on the account as excess to establish its claim. Exhibits CW3, CW12 and CW13 though admitted by the Court did not show how the charges were fraudulently computed into the Appellant’s account as there were no offer letters or authenticated bank statements tendered in proof. The exhibits were therefore not sufficient to prove the claims of the Appellant. As to the grant of the counter-claim of the Respondent by the lower Court, the Respondent alleged that the Appellant is indebted to the bank in the sum of N61,947,747.59 as at 12th October, 2015 being the outstanding debt and accrued interest in respect of the credit facilities granted to the Appellant. The counter-claim is at page 4 to 18 of the supplementary record of appeal.

By paragraphs 4-6 of the statement of claim the Appellant admitted collecting the facility and also admitted that the facility was secured by the property of the Appellant’s Managing Director when it stated thus:
Paragraph 4 “That the defendant offered the claimant facilities. Offer letter dated 26/08/2011, 17/01/2011, 05/09/2012, 09/01/2013, 07/03/2013, 07/06/2013 and 09/06/2014 are hereby pleaded.”
Paragraph 5 “That the subject facility referred to in paragraph 4 above was secured by the following:(i) Property located at Plot 3, Block 81 Hakeem Dickson Street, Lekki Phase 1, Lagos was used as collateral security to secure the facility. The title documents relating to property at Plot 3, Block 81 Hakeem Dickson Street, Lekki Phase 1, Lagos is hereby pleaded”
Paragraph 6 That the claimant avers that it has been performing its obligations as regards the payment of the subject facility referred to in the preceding paragraph 5 above and indeed has fully repaid the facility even in excess”.

Having admitted enjoying the facility as can be gleaned from Appellants pleading above the onus of showing positive evidence that it has fully repaid the facility squarely falls on the Appellant. The Supreme Court in the case of A.A Macaulay V NAL Merchant Bank Limited (1990) 4 NWLR (Pt. 144) 283 at 308 per Agbaje J.S.C relying on the authority of Seldon vs. Davidson (1968) 2All E.R 755 restated the law thus: “It is clear that once the defendant admits the receipt of the loan the burden of proof as to repayment or as to the reasons for non-repayment is on the defendant”. See Tilly Gyado & Co. vs. Access Bank [2019] 6 NWLR (Pt. 1669) 399 at 436.”

The Appellant merely asserted in paragraph 6 of its statement of claim, at page 6 of the record of appeal that it has repaid without demonstrating by evidence how it repaid the facilities. The Respondent witness in proof of the counter-claim, tendered two offer letters (Exhibit DW15 & DW19 which can be found at pages 41 & 57 of the record of Appeal) to establish the fact that credit facility in the sum of N40Million was initially granted to the Appellant via offer letter of 26th August 2011, Exhibit DW15 which facility was increased to N50Million by another offer letter dated 9th June 2014,Exhibit DW19.

Also in paragraph 18, the witness stated “By a letter dated 29th December 2014, the interest rate review from 23% to 26% was advised to the 1st defendant as agreed”. He stated further in paragraph 19 as follows “Defendant also accepted to pay 1% flat penalty per month on unpaid portions of the facility and 45% temporary overdraft rate on any due but unpaid sum.”

The offer letters were signed by both parties. There was no evidence that the Appellant was cajoled or forced into accepting the facility.
The Appellant voluntarily entered into the contract and signed the acknowledgment to accept the terms and conditions of the offer. The agreement became a binding contract and the Appellant cannot be heard that it was unduly influenced and deceived into entering the contract. The Supreme Court in the case of Federal Government of Nigeria vs. Zebra Energy Limited (2002) 18 NWLR (Pt. 798) 162 on effect of acceptance of offer containing terms or conditions of prospective contract held;
“It is not unusual for an offer to contain the terms of a prospective contract. Sometimes these terms are described as conditions. The acceptance of an offer which contains terms or conditions of the prospective contract brings into existence a binding contract on those terms, although the liability of a party may be suspended until the condition is fulfilled. In the instant case, reading the conditions in the letters of offer dated 8thMarch, 1999, it is clear that apart from the condition as to confirmation within thirty days, the rest of the conditions were terms of the prospective contract which on acceptance of the offer became terms of the contract so as to make the respondent come under a contractual obligation to perform the term as to payment of money within thirty days”.

This appeal is therefore unmeritorious and is accordingly dismissed by me. The judgment of the lower Court delivered in Suit No. LD/3961/CMW/2015 on 8/02/2018 is hereby affirmed. No cost awarded. Parties to bear their respective costs.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother ABDULLAHI MAHMUD BAYERO, JCA and I agree with my lord that the appeal be dismissed. I too find no reason to upset the judgment of the lower Court. The said judgment is therefore affirmed. I abide by the consequential orders made by my lord in the lead judgment.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the benefit of reading the judgment of my learned brother, Abdullahi Mahmud Bayero, JCA, just delivered.

I agree with the reasoning and conclusion arrived at. I also see no merit in the appeal and consequently dismiss the same.