Jalbait Ventures Nigeria Limited & Anor V. Unity Bank Plc (2016) LLJR-CA
LawGlobal-Hub Lead Judgment Report
AMINA AUDI WAMBAI, J.C.A.
This appeal is from the decision of Kano State High Court in suit No. K/77/2013 delivered by Hon. Justice lbrahim Musa Karaye on the 3rd day of December, 2014 wherein Judgment was entered in favour of the Respondent against the Appellants.
By its writ of summons under the undefended list, the Respondent as Plaintiff before the Lower Court claimed against the Appellants as Defendants jointly and severally as follows:
“(1) The sum of N74, 054,604.87 (Seventy four million, fifty four thousand, six hundred and four Naira, eighty kobo), which is the exact debit balance of the defendants as at 31st December, 2012, as reflected in their statement of account, which amount comprises of the principal amount collected by the defendants, bank interest and other sundry bank charges.
(2) Interest at the bank rate of 24% (as provided in the offer letters dated 18th August, 2010 and 19th October, 2010), from 31st December, 2012 to the date of judgment of this Honourable Court and thereafter at the Court rate of 10% or more until final liquidation of the whole judgment date.
(3) Cost of instituting
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and prosecuting this case to its logical conclusion including counsel fees and out of pocket expenses assessed at N7,450,450.40 (Seven million, four hundred and fifty thousand, four hundred and fifty Naira forty kobo).”
Pursuant to the filing of a Notice of Preliminary Objection and a Notice of Intention to defend the suit by the Appellant, the Notice of Preliminary Objection was over-ruled and the suit was transferred to the General Cause List. Pleadings were ordered but parties adopted their respective affidavit as their pleadings.
The facts on the pleadings (affidavits) are that the Appellants are long standing customers of the Respondent’s bank at it’s Ibrahim Taiwo Road, branch, Kano. The Appellants by a letter dated 8/3/2010 applied for restructuring of their accounts which had outstanding debit balance and in response to the letter the Respondent granted them a term loan facility of N16,923,682.53 under the terms and conditions stipulated by the Respondent In a letter of 18/8/2010. The said loan was secured by two Deeds of legal mortgages in respect of two properties situated at Hassan Usman Katsina Road, Hotoro GM, Kano, covered by
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certificate of occupancy No. LKN/RES/RC/82/740 and another at Yelwa Quarters, Goron Dutse, Kano, covered by certificate of No.LKN/RES/99/448 and an irrevocable power of attorney in respect of the property subject to the certificate of occupancy LKN/RES/RC/82/7240. On 5/3/2010, the Appellant also applied for further loan of N100,000,000 from the Respondent but was granted only N30, 000,000.00 (N30M) subject to the terms and conditions in the offer letter of 16/5/2011. They however failed to liquidate the loans as at when due despite repeated demands but later wrote an apology letter to the respondent explaining the reason for their inability to settle the debt as being the economic stagnation in the Country but undertook to be remitting N500,000.00 weekly, with effect from June, 2011 which the Appellants did only once. The persistent failure of the Appellants to liquidate the debts led to the institution of the suit.
The case for Appellants on the pleadings is that the Respondents charged them excessive, unauthorized and unconventional interest rates; arbitrary charges and failed to render to them proper statements of their account.
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At the hearing,
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the Respondent called one witness – Musa Yusuf, who doubled as the 2nd Appellant’s account officer and Relations Officer of the Respondent’s branch at Ibrahim Taiwo Road, Kano who testified as PW1 and tendered 10 exhibits. The Appellants called the 2nd Appellant as DW1 who admitted taking the loan facilities but disagreed with what he referred to as the excessive, unauthorized and unconventional charges on their account contrary to the C.B.N. Guidelines. He tendered 8 Exhibits. At the end of the trial, the learned trial Judge found for the Respondent and accordingly entered Judgment per the claim on the writ of summons.
Dissatisfied with the judgment, the Appellant commenced this appeal through a notice of appeal dated 31/2/2014 containing 2 grounds.
Pursuant to the Rules of this Court, both parties through their learned counsel filed and exchanged their briefs of argument. The Appellant’s brief of argument dated 10/8/2015 and filed on 14/8/2015 was settled by M.A.Lawan Esq., while the Respondent’s brief of argument dated and filed 8/10/2015 was settled by Muhammad Ibrahim Esq.
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In his brief, the Appellant’s counsel raised 2 issues for
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determination as follows:-
(1) “Whether the trial Court had jurisdiction to have determined the Respondent’s suit.
(2) Whether the Respondent prove its case before the lower Court on preponderance of evidence.”
In response, the learned counsel for the Respondent distilled 2 issues:-
(1)”Whether under the circumstances of this case, the learned trial judge was right when it overruled the preliminary objection of the defendants on its competence to entertain the suit in its ruling at pages 65-70 of the record and assumed jurisdiction in this suit.
(2) Whether from the pleadings, statement of witnesses and all documentary evidence adduced by the plaintiff as well as the admissions by the defendants in the letters they wrote to the plaintiff and Muhammad Ibrahim & Co, their unconditional signing of the two offer letters, their admission in their pleadings and statement of their witness and during trial on cross-examination, the plaintiff had prove its case on the preponderance of evidence.”
At the hearing of the appeal on 2/3/2016 J. H. Arnos adopted the Appellants’ brief of argument and urged that the appeal be allowed. The
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Respondent’s brief was deemed vide Order 18 Rule 9(a) as been argued.
This appeal will be determined on the 2 issues as distilled by the Appellant, which encompass but are more concise than the Respondent’s issues.
ISSUE NO. I
WHETHER THE TRIAL COURT HAD JURISDICTION TO HAVE DETERMINED THE RESPONDENT’S SUIT.
On this issue, it was submitted for the Appellants that the lower Court has no jurisdiction to hear and determine the respondent’s suit and to have entered judgment for the respondent as the whole proceedings of the lower Court premised on an undated and invalid writ of summons issued by Muhammad Ibrahim & Co. which is not a legal practitioner within the con of Section 104 of Kano State High Court Rules, Cap 57 1991, Section 2(1) and 24 of the Legal Practitioners Act Cap 11 LFN 2004 that can issue the writ is incompetent null and void citing FBN v MAIWADA (2013) All FWLR (Pt. 661)1433 at 1453-1465; M.W. & T.A.S v YAKUBU (2013) All FWLR (Pt. 694) 23 at 34-35; LSD CONSORTIUM LTD V NNPC (supra) at 320 – 330; BELLO OGUNDELE v SHITTU AGIRI (2010) All FWLR (Pt. 507) 1 at 22 – 23; OKETADE v ADEWUNMI (2010) All FWLR (526) 521- at 516;
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OKAFOR v NWEKE (1997) 10 NWLR (1043) 521 at 531- 532. That jurisdiction being the threshold and lifeblood of adjudication, where it is lacking, the proceedings are rendered incompetent and liable to be set aside. Citing the cases of APGA v ANYANWU (2014) 7 NWLR (Pt. 1407) 541 at 582; LSD CONSORTIUM LTD v NNPC (2011) 9 NWLR (Pt. 1252) 317; DAPIANLONG v DARIYE (2007) 8 NWLR (Pt. 1036) 332, CHIEF OYEGUN vCHIEF A.A NZERIBE (2010) All FWLR (516) 425 at 438.
He maintained that the whole proceedings including the Judgment of the Court were a nullity.
In response, it was submitted for the Respondent that the Appellant’s submission is not only misconceived but designed to delay the matter in that the writ of summons was duly signed by MUHAMMAD IBRAHIM ESQ who was called to the bar in 1988 and entitled by Section 2 of the Legal Practitioners Act to practice as a barrister and solicitor. That assuming without conceding the writ was signed by a Law Firm, it is too late for the Appellants to raise the issue of jurisdiction having waived their right by not filing a memorandum of conditional appearance. He cited KANO STATE v. FANZ CONST. CO. LTD (1990) 2 NSLC 399,
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FEED & FOOD FARMS NIG. LTD V. NNPC (2009) 12 NWLR (Pt. 1133) 376. He further contended that a non legal entity can sue or be sued en nominee and referred to Order 11 of the Kano State High Court (Civil Procedure) Rules, 1987 and the cases of ATAGUBA & CO. V. GURA NIG. LTD (2005) ALL FWLR (Pt. 256) 1279. He urged that the Appellant’s submission be disregard and to hold that the trial Court had unfettered jurisdiction to entertain the suit.
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On this issue, it is now elementary and trite that by the combined effect of Sections 2(1) and 24 of the Legal Practitioners Act CAP 11 LFN 2004 a named identifiable and recognized Legal Practitioner whose name appears on the roll of the Supreme Court as a barrister and Solicitor, is entitled to practice as such in Nigeria and qualifies to sign Court processes. This right or privilege attaches exclusively only to named Legal Practitioners enrolled in the Supreme Court to practice Law in Nigeria. It does not inure a Legal Firm, Business, partnership, or to any other professional. It is now well settled that a Law Firm or Partnership not being a recognized Legal Practitioner cannot sign any Legal process or
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document intended to be used by the Court.
This principle of Law has been enunciated in several decisions of the Supreme Court including the locus classicus case of OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521 where Onnoghen JSC held thus:-
“Since both Counsel agree that J.H.C. Okolo SAN & CO is not a Legal Practitioner recognized by the Law, it follows that the said J.H.C. Okolo SAN & CO. cannot legally sign and/or file any process in the Courts and as such the motion on notice filed on 19th December, 2005, notice of cross-appeal and the Appellant’s brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo SAN & CO., are incompetent in Law particularly as the said firm of J.H.C. Okolo SAN is not a registered Practitioner.”
See also IBRAHIM V. BANDE (1996) 9 NWLR (Pt. 474) 513 and IBWA v. IMANO (NIG) LTD (1998) 3 NWLR (Pt. 85) 33.
This statement of Law enunciated in Okafor v. Nweke (Supra) has been stated and re-stated over and over again by the Courts and has been maintained by a long line of decisions, such that it has now become firmly established that a Court process or
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any Legal document intended to be filed in the Court by a Legal Practitioner can only be signed by a Legal practitioner within the meaning and intendment of Sections 2(1) and 24 of the Legal Practitioners Act Cap 11 LFN 2004 and not a Legal firm or partnership. See OKETADE v. ADEWUMI & 4 Ors (2010) 2-3 SC (Pt. 1) 140, ROYAL UNITED NIG. LTD V. STERLING PLC (2008) LPELR 8408 (CA), OGUNDELE V. AGIRI (2009) 18 NWLR (Pt. 1173) 219, NDIC V. LAGOS STATE GOVT & ORS (2009) LPELR – 4677 (CA).
At this stage it is imperative to refer to the said writ of summons which is copied at pages 3-4 of the record of Appeal. The relevant portion of the writ at page 4 is reproduced below:-
..
MUHAMMAD IBRAHIM ESQ
MUHAMMAD IBRAHIM & CO
SOLICITORS TO THE PLAINTIFF,
NO. 37 NIGER STREET, UNION
BANK BUILDING, KANO.
This writ was issued by Muhammad Ibrahim & Co Solicitors to the Plaintiff, No. 37 Niger Street, Union Bank, Building, Kano, Legal Practitioners to the Plaintiff.
?It is very glaring and clear that the writ was signed by
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Muhammad Ibrahim Esq.
The learned trial Judge dealt with this question at pages 67 to 68 of the record in this way:-
“…… I have looked at the writ which was signed by Muhammad lbrahim Esq from Muhammad lbrahim & Co, the fact that below it was written
”This writ was issued by Muhammad Ibrahim & Co. of …… I hereby hold that is immaterial the writ I hereby hold was rightly issued and signed…”
It is not in doubt nor in contention that Muhammad Ibrahim Esq. who signed the writ is a Legal Practitioner enrolled as a barrister and solicitor to practice Law in Nigeria. He is by that fact entitled to sign Court processes including the writ of summons which is the originating process by which the action was commenced before the Lower Court.
The pertinent question is whether the endorsement on the writ that the writ was ”Issued by Muhammad lbrahim & Co…..” vitiates the writ. Let me hasten to state that this endorsement is superfluous and quite unnecessary. I say so because the function of “issuing” a writ of summons is not that of Counsel but of the Court. The only duty of the Plaintiff’s Legal Practitioner or the Plaintiff
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himself as expressly provided in the uniform Rules of Court including the Rules of the Lower Court, is to apply to the Court for the issue of a writ of summons.
Thus, by Order 5 Rule 1 of the Rules of the Lower Court (the Kano State High Court (Civil Procedure) Rules, 1988), a writ of summons shall be issued by the Registrar, or other officer of the Court empowered to issue summons, on application. The application shall ordinarily be made in writing by the Plaintiffs solicitor completing Form I in the appendix to the Rules, after making all the necessary endorsements on the form. The Legal Practitioner or the Plaintiff then takes the writ to the Registrar or any other officer so empowered, and pays the appropriate fees. Once this is done, the Legal Practitioner or the Plaintiff would have done all that is required of him and the rest is left to the Court. It becomes the duty of the Registrar or other officer so empowered, to issue the writ; and the writ becomes “issued” upon being signed by the Registrar or the officer of Court so designated to issue writs. It is thus clear that a Legal Practitioner or the Plaintiff has no business or role to play with
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regards to the “issue” of a writ of summons. It is entirely the duty and function of the Court through the Registrar or any other officer so designated to perform that function OGBUANYINYA v. OKUDO (1990) 4 NWLR (Pt. 146) 551. This is why it has also been reasoned and decided in several cases that a Legal Practitioner or the Plaintiff cannot be blamed or held responsible for any delay or other failure in the issue of a writ of summons. SAUDE v. ABDULLAHI (1989) 4 NWLR (Pt. 116) 387 per Agbaje JSC.
This same principle was also applied in FAMFA OIL LTD v. A.G.F. (2003) 18 NWLR (Pt. 852) 453 wherein Belgore JSC (as he then was) held that the Plaintiff taking out the writ of summons deals directly with the Court and any mistake committed by the Registrar on the writ cannot be apportioned to the Plaintiff. Similarly, in FADA v. NAOMI (2002) 2 NWLR (Pt. 7507) 318 the same principle was applied by this Court.
From the foregoing therefore, the logical conclusion is that since a writ of summons is not “issued” by the Legal Practitioner or the Plaintiff but by the Registrar of the Court, the endorsement on the writ that it was issued by Muhammad Ibrahim &
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Co. is of no moment. It is only superfluous and a mere surplusage as the writ was duly signed by the Registrar of the Court (see page 3 of the record), who is by the Rules of Court responsible to sign same.
This very distinctive feature in this case in which the writ of summons was signed by a Legal Practitioner within the meaning of Sections 2(1) and 24 of the Legal Practitioners Act distinguishes this case and removes it from the class of cases cited by the learned Counsel to the Appellant and therefore saves it from the sledge hammer that hacked down those cases, and I so hold.
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However, before I conclude on this issue, I feel obliged to place in proper prospective the Respondents argument that since a Law Firm or business partnership can sue en nominee, it can also sign and issue a writ. This argument with respect to the learned Counsel, I must remark, is like a shot arrow which does not only miss its target but also misses the direction of the target. The issue here is not that of capacity of the Plaintiff to sue or be sued but that of the capacity of the Plaintiff’s Counsel to sign the writ of summons to commence the action. The former is
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concerned with the right of the party to sue or be sued and questions whether the party has a natural, juristic or legal personality to sue or be sued but the latter is concerned with the right of the party or his Legal Practitioner to sign and or file any Court process including an originating process that initiates the suit.
It is the latter that is an issue in this appeal and not the former. These two should not be confused.
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It seems apparent to me that the underlining folly in the argument of the learned Counsel to the Appellant stems from the fact that Counsel failed to appreciate the striking difference between the “signing” and or “filing” of a Court process which is the duty of the Plaintiff or his Legal Practitioner, from the “issue” of a writ of summons which is the duty of the Court. I cannot therefore in the least be persuaded by the strenuous but bottomless argument of the learned Counsel, which to me fizzles out of the Law as a spiral of fury without a storm having no support whatsoever in the Law. I therefore agree with the learned trial Judge that the writ was signed by Muhammad Ibrahim Esq. and it is immaterial that it was issued by
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Muhammad Ibrahim & Co, and without any much more ado, I resolve this issue against the Appellant and in favour of the Respondent.
ISSUE No.2
“WHETHER THE RESPONDENT PROVE ITS CASE BEFORE THE LOWER COURT ON PREPONDERANCE OF EVIDENCE.?
On this issue, counsel contended that the trial Court erred in Law in holding that the Respondent proved its case and in granting to the Respondent all the reliefs sought. It was submitted that although the Appellants do not deny securing the two loan facilities of the sums N16,5000,000 and N30,000,000 issues were joined on the legality of the charges made on the said loan facilities and their compliance with the Central Bank of Nigeria’s and other Regulations guidelines in force as at the time of the said transaction, which was what informed the decision of the Lower Court to transfer the case to the General Cause List.
Counsel insisted that the Respondent has the onus and must prove that the interests charged and all other charges on the 1st Appellant’s account were lawful and in line with the C.B.N. guidelines and all other Banking Regulations and that it is not enough to tender Exhibit 10 as the
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Respondent did; he must also produce the Central Bank of Nigeria guidelines and other Banking Regulations which validated the charges and show how the debt rose to N74,054, 604.87. He relied on Section 131 of the Evidence Act to submit that he who asserts must prove and that the burden of proof did not shift to the Appellants. He referred to AWUSE v ODILI (2005) All FWLR (Pt. 261) 284; AGBALLAH V CHIME (2009) 1 NWLR (Pt. 1122) 373; JIM ADUN v OSUNDE (2003) 16 NWLR (Pt. 847) 643; KALU V UZOR (2006) 8 NWLR (Pt. 981) 66; EYA V OLAPADE (2011) 11 NWLR (Pt. 1259) 505; NUHU AHMED v LAWALI (2009) 6 NWLR (Pt. 1138) 493 and BUHARI V INEC (2008) 9 NWLR (Pt. 1120) 240 at 421, per Niki Tobi JSC.
In support of their assertion of excessive interests and arbitrary charges in their account, the Appellant tendered the Sky Inspection Nigeria Limited Report (Exhibit D1), a product of the banking expert analysis of the Appellant’s statement of account for the period 27/03/2000 to 27/03/2009 and the Gazette of Central Bank Of Nigeria approved charges dated 28/04/2003, which he submitted being uncontroverted and challenged expert report, ought to have acted upon by the trial
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Judge – citing MOGAJI v ODOFIN (1978) 4 SC 91; ADEYEYE v AJIBOYE (1987) 3 NWLR (Pt. 61) 432; SUE ANYEGWE V AIDOKO 37 NSCQR PT.1 P.109 at 126-127.
On relief 3 on the writ of summons, it was contended that no evidence whatsoever was given in proof of same, as the respondent’s did not tender any receipt of payment of the Counsel’s professional fees or any filing fees and that unproved averments are deemed abandoned upon which no relief can be granted by the Court. He relied on OJUKWU V YAR’ADUA (2009) 12 NWLR (Pt. 1154) 50 at 125-126 S.P.D.C.N. LTD V NWAWKA (2003) 6 NWLR (Pt. 815) 184; JIM ADUN V OSUNDE (supra); AJAO V ALAO (1986) 5 NWLR (Pt. 45) 902; EBUEKU V ARINOLA (1988) 2 NWLR (Pt. 75) 128. It was also argued that it is not the duty of the Court to speculate, contemplate or assume the evidence in prove of the filing fees but to do justice between the parties, and commended to us the cases of ETAKULU V N.B.C PLC (2005) All FWLR (Pt. 261) 353 at 377; OBAJIMI v ADEDEJI (2007) All FWLR (Pt. 394) at 352.
On the foregoing, we were urged to hold that the Respondent has failed to prove its case at the trial Court, resolve the issue in his favour and allow the
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appeal.
Responding to and negating the aforestated argument, it was submitted that the Appellants contention of being charged excessive interest rates and arbitrary charges contrary to the Central Bank of Nigeria and other Regulations approved guidelines is an afterthought, as the Appellants have never raised any complaint to that effect in respect of the statements of accounts sent to them which reflected the interests. That the failure of the Appellants to complain or protest about the so called unauthorized and arbitrary charges of interest rates and improper rendition of account amounts to implied consent or acquiescence and an admission of the Lawfulness of the interest. Further that the non-objection to the admissibility of the statements of accounts and failure to cross-examine on them is also an admission, an implied consent and or acquiescence, and thus now too late for the Appellants to complain. SUBERU v COOPERATIVE BANK LTD (2004) All FWLR (Pt. 236) 383, BARCLAYS BANK LTD V ABUBAKAR (1971) 10 SC 73; AFORICA v AFRICAN CONTINENTAL BANK LTD (1994) 3 (Pt. 331) 217 were referred.
On the Appellant’s submission against the award of relief 3, it
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was submitted that the argument does not relate to any ground of appeal and should therefore be struck out. Citing MOBIL PRODUCTION NIG.V MONOKPO (No. 2) (2001) FWLR (Pt. 78) 1210 at 1234 but assuming it was properly raised, parties are bound by their agreements including the clauses in Exhibits 5 and MIF dealing with expenses which make it clear that the Appellants will reimburse the Respondent for all the expenses (including legal fees incurred by it in the recovery of fund advanced under this facility and for any other expenses) relating to the administration, protection and enforcement of the terms and conditions thereof. Counsel cited Section 128 of the Evidence Act 2011 to submit that the contract having been executed under seal, no oral evidence can be given to vary the contents of the agreement. That the duty of the Court is not to make or re-write agreement for the parties but to enforce the terms. He relied on MANYA V ALH. ILYASU IDRIS (2011) FWLR (PT. 23) 1237 at 1250; BLANTE INT. LTD V NDIC (2011) 15 NWLR PT. 1270 407 at 424; NBICI V ALFIJIR MINING (1999) 12 SCNJ 294 at 305 and urged this Court to hold that the lower Court was right in awarding the
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respondent relief 3.
On the Appellants? submission that Exhibit D1 ought to be given its full evidential value, Respondent’s counsel argued that having not been raised from any of the grounds of appeal, it is incompetent and should be struck out as no leave of Court was obtained to raise it, citing in support, INCAR NIG. PLC V. BOLEX ENT. (NIG) (2001) 6 NSCQR 692 and that assuming it is properly raised, the said Exhibit D1 offends Sections 83 (3), 91(3), 43 (2) of the Evidence Act 2011 and is inadmissible In that:
(1) It was prepared or produced when proceeding was pending before the lower Court because the suit was filed on 7/2/2013 while the report was made on 5/4/2013,
(2) The maker of the expert report, Sky Inspection Nigeria Ltd was not called as a witness to be subjected to questions as to his qualification,
(3) The report is interim in nature, unauthenticated and was wrongly admitted by the Lower Court, thus it was right in not ascribing value to it relying on the cases of UGWU v ARARUME (2007) FWLR (Pt.10) 453-454; ADO KOFAR WAMBAI v KANO N.A (1965) NMLR 15 at 17; AZU V STATE (1993) 6 NWLR Pt. 299, 302; NBC v UBANI (2009) 3 NWLR
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(PT. 1129) 512 at 541.
From the foregoing submission of both Counsel and what is evident on record, parties are ad idem that the Appellant was upon application, granted the two facilities of N16,923,682.53 and N30,000,000.00 totaling the sum of N46,923,682.53 as the principal sum out of which Appellant has paid only N500,000.00.
The only bone of contention is the outstanding amount due to the Respondent, the disagreement of which the Appellants contend, arose out of the unlawful excessive interest rates and unauthorized/unconventional arbitrary charges computed on their account by the Respondent contrary to the Central Bank of Nigeria Guidelines by which the Respondent arrived at the said figure of N74,054,604.97 as the outstanding balance due to it.
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Now, the burden of proof in its simplest connotation means whoever asserts must prove what he asserts. In Civil cases, as the case at hand, by Section 133(2) of the Evidence Act, 2011, the burden of first proving the existence or non-existence of a fact lies on the party against whom Judgment of the Court would be given if no evidence were reproduced either side, regard being had to any presumption
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that may arise on the pleading. However, this is not static as in Criminal cases. While the general burden of proof in the sense of establishing the case lies on the Plaintiff, not only are there instances when on the state of the pleadings the burden of proof lies on the defendant, but also as the case progresses, it may become the duty of the defendant to call evidence in proof or rebuttal of some particular point which may arise in the case. See Sections 131, 133(1) of the Evidence Act, OGBU V. WOKOMA (2005) 14 NWLR (Pt. 944) 118, EGHAREWA V. OSAGIE (2009) 18 NWLR, (Pt. 1173) 299 SC, ADEGOKE V. ADIBI (1992) 6 SCNJ 136, AWUSE V. ODILI (Supra) and this continues until all the issues in the pleadings are resolved. See ITAUMA V. IME (2000) 12 NWLR (Pt. 680) 156 SC, EHIDIMHEN V. MUSA (2000) 8 NWLR (Pt. 669) 540 SC, OLOHUNDE V. ADEPOJU (2000) 10 NWLR (Pt. 676) 562, 599.
The issues that were joined at pleadings are the lawfulness and correctness of the interest rates and other charges on the Appellants account and the actual outstanding balance due to the Respondent. ?
Did the Respondent discharge this onus?
The Law is trite that where the debit
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balance of a Bank Customer becomes an issue, the Bank has an obligation to prove the overall debit balance in customer’s statement of account. Mere presentation of the customer’s statement of account is not sufficient, because the statement of account cannot, on its own, amount to sufficient proof to impose liability on the customer for the overall debit balance shown on a statement of account. The bank or any person so claiming a sum of money on the basis of the overall debit balance reflected on a statement of account, is duty bound to adduce both documentary and oral evidence explaining the entries therein to show how the overall debit balance was arrived at. See YUSUFF v. AFRICAN CONTINENTAL BANK (1986) 1-2 SC, HABIB NIG.BANK LTD V. GIFT UNIQUE (NIG) LTD (2004) 15 NWLR (Pt. 896) 405.
This position of the Law was well stated by this Court per Okoro JCA (as he then was) in WEMA BANK V. OSILARU (2008) 10 NWLR (Pt. 1094) 150 thus:-
”It is trite that a bank statement of account is not sufficient explanation of debit and lodgments in a customer’s account to charge the customer with liability for the several debt balance shown in the statement of
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account. Any bank which is claiming a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall debit balance was arrived at …”
The same observation was made by this Court in SAMABEY INTERNATIONAL COMMUNICATIONS LTD V. CELTEL NIG. LTD (2013) LPELR – 20758 (CA).
Thus, where as in this case, there is a dispute on the actual indebtedness due, the bank has an obligation to demonstrate through oral evidence by its official who is acquainted with the account, the analysis of how much of it is the interest and how the balance was arrived at. See BIEZAN EXCLUSIVE GUEST HOUSE LTD V. UNION HOMES SAVING & LOANS LTD (2011) 7 NWLR (Pt. 1246) 246.
The Respondent tendered in evidence amongst other documents, the Appellant’s statement of account, Exhibit 10, the two loan agreements, Exhibits 5 and M.I.F, dated 18th August, 2010 respectively through PW1, its Branch Relationship Officer who is also the officer in charge of the Appellant’s account.
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The starting point in the resolution of this issue is to pierce into and bring to fore the terms and conditions
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as contained in Exhibits 5 and M.I.F. upon which the facilities were granted.
Exhibit 5 reads in part:-
“UB/KZ/KRP/CR/OL/08/2010/040
August 18,2010
The Managing Director,
Jail-bait Ventures Nig. Limited,
Plot 109, IBB Way,
P.O.BOX 1.444,
Kano.
Through: Branch Manager, Ibrahim Taiwo Road Kano
Dear Sir,
Restructuring of overdraft facility into Term Loan Facility of N16,923,682.53 (Sixteen Million, Nine Hundred & Twenty Three Thousand, Six Hundred & Eighty Two Naira Fifty Three Kobo) in favour of jalbait Ventures Nig. Limited
We refer to your application for restructuring of the existing Credit Facility and we are pleased to inform you that Management has approved restructuring of the existing facility to a Term Loan of N16,923,682.53 (Sixteen Million, Nine Hundred & Twenty Three Thousand, Six Hundred & Eighty Two Naira Fifty Three Kobo) only under the following terms and conditions:
Facility Type: Term Loan Facility (Restructuring)
Facility Amount: N16,923,682.53 (Sixteen Million, Nine Hundred & Twenty Three Thousand, Six Hundred & Eighty Two Naira Fifty Three Kobo)<br< p=””
</br<
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Tenor: Twelve (12) months from the date of acceptance
Repayment source: inflow from fleet operations and other receivables from Kano State Government
Repayment Mode: Bullet repayment of N4,585,608,67 plus monthly installments of N1,000,000.00 and accrued interest for 12 months.
Pricing: You are expected to make available adequate funds in the current account to accommodate the Bank’s non negotiable fees.
Interest Rate: 24% per annum (18% Prime Lending plus 6% Risk Premium), however, this rate is subject to changes depending on the money market condition(s).
Restructuring Fee: Non refundable fees of 0.25% flat of the facility amount payable upfront.
Commitment Fee: Non refundable fees of 1.0% flat of the facility amount payable upfront
Management Fee: Non refundable fees of 0.75% flat of the facility amount payable upfront, which is to be charged quarterly.
COT: N5.0/mille.”
For the 2nd facility the Truck lease facility of N30M granted on 19/10/2010, the terms include:-
OFFER OF BANKING FACILITY: TRUCK LEASE FACILITY OF N30 MILLION
Interest Rate: 6% above the Bank?s Lending Rate, presently at 18% p.a
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thus giving an initial lending rate of 24% p.a. Please not that the Prime Lending Rate is variable depending on the money market situation.
Processing Fee: 0.25% flat, payable upfront on acceptance and execution of this offer letter.
Management Fee: 0.75% flat, payable upfront and quarterly.
Commitment Fee: 1.00% flat, payable upfront
COT: N5.00 per mille
Security:
These are the relevant conditions:-
From Exhibits 5 and M.I.F above reproduced the agreed interest rate was 24% per annum (comprising of 18% prime lending plus 6% Risk Premium) subject however to changes depending on the market conditions, the restructuring/processing fee was 0.25% payable upfront, the commitment fee was 1% flat of the facility, also payable upfront, the management fee was 0.75% of the facility also payable upfront and charged quarterly. Then commission on turn over (COT) was fixed at N5.0/mille.
These were the interest rates and charges among other conditions to which the loans were subjected and as agreed by the parties.
?
Relative to these two facilities, the specific interest rates/charges complained against are management fees, the
28
processing fees and the Risk premium interest which Appellants contend are higher than the approved Central Bank of Nigeria rates. On this, PW1 in cross-examination inter alia testified as follows:-
“l am aware of CBN approved guides (sic) to Banks. The 1% interest rate which is the risk premium. lt is within the CBN guideline. We call it upfront charges. 2% management fee was charged. lt is within the CBN guidelines. Whatever is indicated in the offer letter was within the CBN guideline, management fees is being charged at the point of disbursement and quarterly throughout the tenure of the loan on the outstanding balance. We have been charging management fees. lt was also indicated in the offer letter.
You are not right to say that based on the CBN guidelines management fees are charged once in the life of the loan. You are not right to say that interest rate during the life time of a loan ought to be going down…….”
It is glaring from the evidence of PW1 that contrary to the entries in Exhibits 5 and M.I.F attached to Appellant’s affidavit, the Respondent admitted charging a management fee of 2% as opposed to the 0.75% in the contract
29
agreement and 1% processing/restructuring fee as opposed to 0.25% agreed upon in Exhibits 5 & MIF. Respondent also charged a 1% risk premium interest above the rate contained in the two contracts. PW1 claimed that they are all within the CBN guidelines though no such guidelines were laid before the Lower Court.
The pertinent question is whether by this evidence of PW1, the Respondent discharged the onus placed on it to justify the entries in the statement of account different from what were agreed upon by the Parties.
There is no gainsaying the fact that the above quoted evidence of PW1 supplied in cross-examination is quite revealing on the lawfulness and correctness of the interest rates and charges reflected on Exhibit 10. It explains the entries and affirm their compliance with the CBN guidelines. The evidence also affirms that they had been charging those rates, specifically, the management fee as indicated on the contracts.
This affirmative evidence of PW1 in addition to the fact that the Appellants had been receiving their statements of account periodically, in my view, sufficiently shifts the burden of proof to the Appellants who
30
would lose if no further evidence were adduced. See BUHARI V. INEC (2008) 9 NWLR (Pt. 1120) 240 Per Tobi JSC @ 369-370, 427 C, G-A, INYANG & ORS v. EKPE (2009) LPELR – 8086 (CA) per Owoade JCA.
Did the Appellants discharge the burden?
The Appellants tried to do this by tendering Exhibit D2 through which the discoveries were made and which though was admitted in evidence, the learned trial Judge did not ascribe any probative value to.
The learned trial Judge at page 325 of the record reasoned inter alia, why it declined to attach any weight to it viz:-
“…… however ……… before evidence of an expert is relevant the expert must be called as a witness and must state his qualification and satisfy the Court that he is an expert on the subject which he gave his opinion. Where document is challenged and impugned as unauthentic, the maker of the document should be called to support the documents otherwise no weight should be attached to it…..The person who produced it was not called so that he can be cross-examined. The Court cannot admit the report or attach any weight to it……”
While the learned Counsel to the Appellant has
31
picked hole with the said decision of the trial Court labeling it as erroneous the learned Respondent’s Counsel hails same. The Respondent’s argument in support of the holding of the trial Court is predicated on non-compliance of Exhibit D2 with Sections 43(3) and 43(2) of the Evidence Act.
A look at Exhibit D2 reveals that it was made by the Sky Inspection Nigeria Limited on 05/04/2013 about 6 weeks after the institution of the suit on 18/02/2013. However, I do not agree with Counsel for the Respondent that the maker of Exhibit D2 is a “person interested” within the meaning of Section 83(3) of the Evidence Act. The maker of Exhibit D2 who was only performing a professional duty and whose personal interest in the matter was not shown, cannot in my view, be said to be a person interested in the outcome of the case within the meaning of Section 83(3) of the Evidence Act merely by writing the report. See APENA V. AIYETOBI (1989) 1 NWLR (Pt. 95) 85.
On the probative value of Exhibit D2 which purports to be an expert report, at Paragraph 2.3 on page 235 of the record, it bears testimony about itself that it is not only interim and incomplete in nature but
32
also unauthentic. It’s admissibility was challenged but overruled. It is now settled Law that for an expert report to be admissible and relied upon, the expert must be called as a witness more so where the report is of a scientific or technical nature which may be outside the knowledge of the Judge. See KAYODE VENTURES v. MIN. FCT (2010) 7 NWLR (Pt. 1192) 171 SC, A.G.F. v. ALH ATIKU ABUBAKAR & ORS (2002) 4 SCNJ. 456. The party seeking to rely on such a report has an obligation to call the expert as a witness to subject him to cross-examination not only on the contents of the report, but also on his acclaimed qualification on the professional expertise in the field or the subject matter. The reasons for his opinion must also be scrutinized. He must state in evidence his qualification, and satisfy the Court that he is an expert in the subject which he is to give his opinion upon and state clearly the reasons for his opinion. OGIALE V. SPDC CO. NIG (1997) NWLR (Pt. 480) 148, 183, STOYOL & ANOR V. INEC (2011) LPELR (CA). See also the decision of Hurley C.J. in the case of Ado Kofar Wambai v. Kano N.A. (1965) NWLR 15 @ 17.?
The evidence of an expert
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contained in a report who is not called as a witness will obviously amount to hearsay and inadmissible – SPDC v. ISAIAH (1997) 6 NWLR (Pt. 509) 236, ANPP V. USMAN (2008) LPELR – 3738 (CA). Indeed, the Court should be very wary in admitting a report prepared by an expert not at the instance of the Court but at the behest of one of the parties to the dispute. The Court should treat such a report with a pinch of salt. WAZIRI V. STATE (1997) 3 NWLR (Pt. 496) 689, ADO KOFAR WAMBAI & ANOR V. KANO N.A. (Supra). For all these aforestated reasons, I cannot but agree with the learned trial Judge for declining to attach any probative value to the report, Exhibit D1.
Resultantly, the Appellant’s complaint based on the discoveries in Exhibit D1 except those admitted by PW1 remain unproved. This includes the assertion of improper rendition of statements of accounts which in any case cannot stand, the Appellants having themselves attached several copies of their statements of accounts (46 copies) over the years including Exhibit 10 to their affidavit in support of Notice of Intention to defend the suit and having not over the years raised any formal objection until
34
after the institution of this suit.
Furthermore, as rightly submitted by the Respondent’s Counsel, the Law is trite that a Bank customer who receives periodic statements of his account and raises no objection to the entries therein is deemed to admit the correctness of the entries and admit liability therein. See SKYE BANK PLC v. MRS. JADESOLA KUDUS (2011) LPELR – 4962 CA, BARCLAYS BANK LTD v. ABUBAKAR (Supra), SUBERU v. CO-OP. BANK LTD (Supra).?
There is no contention that the Appellants were periodically receiving their statements of account from the Respondent. The only pertinent question is whether they raised any objection to the entries therein, before the institution of this suit. This the Appellants said they did vide Exhibit D2 by which they claimed they had before the present hostility, complained to the Respondent’s, about other spurious entries into their account of the sum of N4,500,000.00. This contention however, is very slippery and far from the truth as the said letter was written on 02/04/2013 after the institution of the suit on 18/02/2013. The implication is that the Appellants never raised any formal complaint to the Respondent
35
before the institution of suit. The Appellants’ are thus deemed to have consented to the said charges. See BARCLAYS BANK LTD V. ABUBAKAR (Supra), SUBERU V. CO-OP. BANK LTD (Supra).
Similarly, on the management fee being charged quarterly which the Appellants contend and try to show should be charged only once in the life time of the loans, the Law is firmly settled that parties are bound by the terms of their agreement. This is an elementary principle of Law that if parties enter into agreement, they are bound by its terms. Thus, all parties are expected and indeed mandated by Law to honor the terms. The terms of agreement are as binding on the parties as they are binding on the Court and the Court must treat as sacrosanct the terms freely entered into by the parties. A party who freely signs agreement is bound by its terms. It follows that one or the other party cannot legally or properly opt out of or read into the agreement the terms upon which parties are not agreed. HILLARY FARM LTD & ORS V. M.V. MAUTRA & ORS (2007) 14 NWLR (Pt. 1054) 270, KOIKI V. MAGNUSSAN (1999) 5 SCNJ 296, 320, JFS INVESTMENT LTD V. BRAWAL LINE LTD (2010) 18 NWLR (Pt.
36
1225) 496) SC.
The corollary principle of Law is that, where the intention of the parties to a contract is expressly and clearly stated in the document, the Court cannot go outside that document to give effect to the intention of the parties.
BABATUNDE & ANOR V. BANK OF THE NORTH LTD & ORS (2011) LPELR – 8249 (SC), UNION BANK OF NIG.LTD V. B. U. UMEH & SONS LTD (1996) 1 NWLR (Pt. 426) 565, KOIKI V. MEGNUSSAN (Supra).
See also MANYA v. IDRIS (2000) FWLR (Pt. 23) 1237, BILANTEE INT. LTD V. NDIC (2011) 15 NWLR (Pt. 1270) 407, 424-427,436 and NBIC V. ALFIJIR MINING (1999) 12 SCNJ 294. The only duty of the Court is to give effect to the wishes of the parties as expressed in the terms of their agreement. It is therefore not open for the Appellant to now challenge the lawfulness of the quarterly charging of the management fee.
The Appellants? other specific complaint of excessive interest rates and charges are with respect to:-
(1) Spurious and unauthorized/unconventional charges to the tune of N2,948,051.16 (Paragraph 7 of the written statement on oath of PW1)
(2) 3% loan deal charge on a N105M facility (Paragraph 9
37
? written statement on Oath)
(3) A debt entry of N4,800.00 made on the account on 2/4/2002 (Paragraph 10 written Statement on Oath)
(4) 1% renewal fee above the CBN guidelines on a facility granted on 6th February,2004 (Paragraph 11 written statement on Oath)
All these discoveries are contained in Exhibit D1, (the Sky Inspection Nigeria Limited report) the backbone of the Appellants’ case which the learned trial Judge rightly declined to ascribe any probative value to. That finding and conclusion by the learned trial Judge finds favour with the Law, and same is hereby upheld. The effect is that the Appellants are unable to support their claim with credible evidence.
The next issue to resolve is that of the grant of relief 3 which is the cost of the sum of N7,450,460.40 awarded to the Respondent which the Appellants contend was not proved.
The Law is that costs follow events and a successful party is entitled to cost which he should not be deprived of except for a good or special reason SEABY V. OLAGUN (1999) 10-12 SC 45, 59, LADEGA V. AKINLOYE (1975) 2 SC 91.?
The whole essence of awarding cost is to compensate or indemnify
38
the successful party for the costs incurred in the litigation. It is neither intended as a bonus to the successful party nor to cure all the financial loss sustained in the litigation. It is also not to be awarded on sentiments or to punish the loser of the case. LADEGA V. AKINLOYE (Supra), JAIYEOLA v. ABIOYE (2003) 4 NWLR (Pt. 870) 397.
The award of costs is a matter of discretion for the Court subject only to the fact that it is seen to have been so exercised both judicially and judiciously.
Although there are no universal table of fixing the cost or any statutory or even regulatory tariffs available to the Courts as guides, the Courts are enjoined to be reasonable in the assessment of costs. See A.C.B. PLC V. NDOMA EGBA (2000) 10 NWLR (Pt. 675) 229, JAIYEOLA V. ABIOYE (2003) 4 NWLR (Pt. 810) 397.
Where the Lower Court’s assessment is found not to be reasonable, an appeal Court would be entitled to interfere as the Lower Court cannot in that situation be said to have exercised the discretion judicially and judiciously. Such is the situation in this case. The sum of N7,450,460.40 Seven Millions, Four Hundred and Fifty Thousand, Four Hundred
39
and Sixty Naira Forty Kobo awarded as cost by the Lower Court is by all standards, most unreasonable and excessive. It is super excessive.
It is admitted that by the Appellant’s own agreement, in Exhibit 5 and MIF the Respondent is entitled to be reimbursed for all expenses, including legal fees incurred by the Respondent in the recovery of the facilities and other expenses for the enforcement of the terms of the contract. However, it is my most humble view that this should have been claimed as a special damage rather than being lumped together with the cost of filing fees and Counsel appearances.?
The solicitor’s fees in my view more appropriately should be claimed as a special damage to be specifically pleaded and properly proved, in which case all the receipts would be tendered, subjected to cross-examination, scrutinized, and then computed before arriving at the actual fees expended by the Counsel unlike in this case where no receipt or any proof whatsoever was tendered in support of the claim. Having not separately claimed the solicitor’s fees and other expenses as a special damage, the learned trial Judge was wrong to have taken into
40
consideration the solicitor’s fees in awarding the cost as evident by the colossal sum of over Seven Million Naira awarded as cost. That order cannot stand. This Court is duty bound to interfere with that discretionary order made by the Lower Court which evidently was wrongly exercised.
It is my view that in the consideration of all the facts on record including the filing fees of N60,578.00 and the few appearances put up by the Respondent’s Counsel at the Lower Court, the short length of time from the inception of the suit to its conclusion, the sum of N200,000.00 is reasonable as cost. Same is hereby so awarded in place of the N7,450,460.40 awarded by the Lower Court.
In sum, this issue is partly resolved in favour of the Respondent and partly in favour of the Appellant. In consequence thereof, this appeal succeeds in part.
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However, before making the final orders, let me remark in passing that it is disheartening that the loan of N46M taken by the Appellants in the year 2010 had by December, 2012 metamorphosed into the sum of over N74M Naira and had been and will continue to be growing taller and taller until finally liquidated whatsoever
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difficulties the Appellants may be facing.
I most humbly think that the difficulty and hardship faced by individuals and even Governments on repayment of accumulative interests on loans is worth pondering about.
It has made it difficult for manufactures to access funds for operation and expansion of their businesses and has brought Companies and individuals to their knees as it has repelled many from approaching and accessing funds.
It is putting off small and medium entrepreneurs from starting new businesses and preventing the already active ones from developing or even forcing them to fold up.
It is interest on loans that has begotten high cost of funds in the industrial sector resulting in factory closures which has in turn begotten a sharp recession in that Sector of the economy.
It is no wonder that interest rates on loans is one of the most if not the major cause of economic stagnation and hindrance to economic growth.
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It is paradoxical that individuals, Governments and even Countries take new loans year in year out just to pay or service interests, (not the principal loan), on previous loans and yet remain heavily indebted
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to the lender for the original loan which keeps multiplying in manifolds.
Undoubtedly, it is to prevent these hardships, and injustice and much more that the major Religious scriptures prohibit interest (usury).
The Holy Quran is in several places including:-
3:130
“Believers, do not accept interest in order to increase your wealth many times over.”
Have fear of Allah so that you will have everlasting happiness.”
30:39
“Allah will not allow to increase whatever interest you try to receive in order to increase your wealth of the expense of people’s property…..”
and
2:275
“Those who take interest shall be raised (on the day of resurrection) like those who suffer from a mental imbalance because they say ‘Trade is like interest whereas Allah has permitted trade and forbidden riba (interest)….”
Similarly, the Holy Bible in
Luke 6:35 says:
“Lend hoping for nothing in return.” and in
Exodus 2:25:
“lf you lend money to any of my people with you who is poor, you shall not be to him a creditor, and you shall not exact interest from him….”
It is in this light that I most humbly but firmly
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believe that if we can borrow from the Jews how it works for them to operate zero interest rate amongst themselves and yet are doing fine, how the JAK’s zero interest loans experimented in Sweden and Ireland has worked, how the experience of other Banks and financial institutions in many Countries like USA, England, Turkey, Switzerland, Denmark, Philippines etc. including a few Banks in this Country offering zero interest loans are working, it will greatly facilitate more individuals and investors to approach and access bank loans, which in turn will resuscitate the dead or dying businesses and the expansion of existing but epileptic ones. It will stimulate and grow the economy.
Having made this observation, in conclusion, this appeal succeeds only respect with to relief 3 but fails with respect to reliefs 1 and 2. Accordingly, The sum of N7,450,460.40 awarded by the Lower Court as cost is hereby varied and reduced to the sum of N200,000.00 (only).
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The 1st and 2nd Orders made by the Lower Court on the outstanding debit balance of N74,054,604.87 due to the Respondent against the Appellants and interest thereon respectively are hereby affirmed.<br< p=””
</br<
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These are the Orders of this Court.
Other Citations: (2016)LCN/8638(CA)
