Al-braiyah Alhaji Jibrin Bala V. Intercity Bank Plc (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
The Respondent as Plaintiff in the Court below presided over by the Hon. Justice Maria Zanda Zukogi of the Niger State High Court sitting in Minna claimed as follows at page 81 of the Record:-
The sum of N9,362,425.04k (Nine million, three hundred and sixty two thousand, four hundred and twenty-five naira, four kobo) being the balance of loan (unpaid) granted by the plaintiff to the Defendants/now Appellants. With interest at 21%per annum from the date this suit was filed and thereafter 10% interest till the entire sum is fully and wholly liquidated.
ALTERNATIVELY
An order of the court allowing the plaintiff to exercise its power of sale (as contained in the Deed of Legal Mortgage executed by the Defendants in favour of the plaintiff) to sell and dispose off the mortgaged property located at Suleja covered with Certificate of Occupancy NGS 19389 and use proceeds in satisfaction of the debts of the defendants
FACTS:-
The Appellants as customers of the Respondent Bank had a Banker/Customer relationship dating as far back as around October 1997 to April 1999 when the relationship between the parties was healthy. About May 1999 the Appellants applied for and were granted a loan of N2.8m and another of H5m. This loan facility was not in dispute. The area of dispute was that while the Appellant claimed to have made several lodgments that were to keep the loan and keep their account in credit the Respondents had a different view as they contended that it was the default or neglect by the Appellants to repay the said loans as and when due that brought about the initiation of this suit by the Respondents as Plaintiffs. They claimed the sum of N9,362,425.04k (Nine million, three hundred and sixty-two thousand, four hundred and twenty-five naira, four kobo) being the balance of loan unpaid granted by the Respondents to the Appellants with interest at 21% per annum from the date of the suit filed and thereafter 10% interest till the entire sum is fully and wholly liquidated.
The Respondent as Plaintiff on 28th February, 2002 commenced the action under the Under-defended List against the Appellants. At the Appellant’s instance the suit was transferred to the general cause list by the trial court on 24/5/2002. Thereafter, both parties filed and exchanged pleadings and in the course of the proceedings Appellants instructed their counsel to apply for more time to settle the Respondent’s claim and Appellants commenced installmental payment of N200,000.00 to the Respondent in July 2002 and N50,000.00 was paid in November 2002 and a further sum of N50,000.00 was paid by the Appellants to the Respondent in January 2003. At that point, the Appellants through their counsel offered to settle the balance vide N50,000.00 monthly installmental payment. This latter offer was however rejected by the Respondent as rather paltry and ridiculous vide Respondents letter dated 1/4/2003 at page 101 of the Record.
Subsequently, trial commenced with Respondent calling one witness and closed its case on 28/1/2004. After the closure of Plaintiff/Respondent’s case the Defendants/Appellants amended their Statement of Defence and prepared Exhibit 10 during the pendency of the suit. Altogether, the Respondent called 1 witness and tendered 12 exhibits whilst the Appellants called 2 witnesses and tendered 4 exhibits. The Appellants closed their defence and thereafter the parties filed their addresses which they later adopted. In the verdict of the court below the learned trial Judge entered judgment for the plaintiff/Respondent granting the reliefs sought hence this appeal by the Defendants/Appellants.
At the hearing of this appeal on 12/1/09, learned counsel for the Appellant, Mr. Okolo adopted Appellants brief filed on 15/9/06 and urged the court to allow the appeal. In that Brief learned counsel on behalf of the Appellants formulated two issues for determination which are:-
- Can the Defendants/Appellants be said to be indebted to the Plaintiff/Respondent in view of the entire evidence presented by the Defendants/Appellants.
- Is the learned trial Judge right in law to have held that Exhibit 10 tendered through DW1 is inadmissible in law by virtue of Section 91(3) of the Evidence Act.
Mr. Adedipe, learned counsel for the Respondent adopted the Brief of the Respondent filed on 6/10/06 praying that the appeal be dismissed. The Respondent had in their Brief framed three issues for determination which are:-
- Whether or not the lower court’s verdict is supported by the evidence adduced before it.
- Whether or not there was admission of the plaintiff/Respondent’s claim by the Defendant/Appellants at the trial and the propriety of the trial court acting on such admission.
- Whether or not EXHIBIT 10 was wrongly admitted in the course of hearing evidence and if so whether it was rightly expunged by the trial court in the course of delivering its verdict.
The issues as distilled by the Appellants being more concise and simplified, I am going to use them to wade through to see where the justice of the appeal lies.
ISSUE NO ONE
Can the Defendants/Appellants be said to be indebted to the Plaintiff/Respondent in view of the evidence presented by the Defendants/Appellants.
Learned counsel for the Appellants, Mr. Okolo contended that the totality of the evidence before the trial court show that the true position of the Appellant’s statement of account was never placed before the court to show the details of the transactions between the Appellants and the Respondent in respect of the Appellant’s account. That Exhibit 8 is the Bank Statement of Account produced by the Respondent in respect of the Appellants current Account NO.030200181929 which Exhibit 8 showed that the Account started, from 30/7/99. That the evidence before the court indicated that the Appellants’ transactions with the Respondent in respect of this account started on 30/10/97. He said Exhibit 8 obviously left out the Appellant’s transactions with the Respondent between October 1997 and 29th July 1999 (transaction of a period of 22 months) was unexplained.
Mr. Okolo Stated on that the conduct of the Respondent no doubt kept the Appellants and even the court in darkness regarding the correct position of the Appellants’ account balance, a situation raised in the Appellant’s statement of defence to which Respondent failed to supply the details. He went on to say that the Appellants sought from the Respondent the comprehensive Statement of Account of the Appellants but the Respondent for reasons which are obviously known to the Respondent alone refused to supply the comprehensive statement of the said Account in addition to clarifying the strange accounts that are reflected in Exhibit 8.
Learned counsel for the Appellant stated that Exhibit 12 is the Appellant’s request to the Respondent in this regard which was duly acknowledged by the Respondent even though there were denials by Respondent’s witness at the trial court. That the conduct of the Respondent in deliberately refusing to furnish the Appellants with the comprehensive statement of Account and failure to place before the court such comprehensive statement of account is caught in the web of the provisions of Section 146(d) of the evidence Act. He cited Major Bukar Alibe v. Alhaji Yaro (2002) 1 NWLR (pt. 747) 238 at 246.
Mr. Okolo further submitted that the evidence before the court revealed that the Appellants made a lodgment of about twenty-nine million naira (N29m) into the said account between 5/1/99 and June 1999 which transactions were glaringly absent on the face of Exhibit 8. Also that the Respondent had stated in evidence that the loan facilities were applied for and approved on 24/5/99 and July 1999 but there is nothing in Exhibit 8 to show that the facilities were actually withdrawn from the account by the Appellants and the law is that he who asserts must prove. That the Respondent had not discharged that burden of proof. He cited Mark Ugbo v. Anthony Aburime (1994) 9 SCNJ 234 at 39. He also referred to the evidence adduced by the Appellants showing the lodgments they made which evidence was not disputed by the Respondent. That this evidence was supported with lodgment tellers and oral evidence of 200 Appellant which are adequate proof of the lodgments. He referred to the case of Alhaji Aminu Ishola v. Societe Generale Bank (Nig.) Ltd (1997) 2 SCNJ 1.
Learned counsel said the trial Judge made various findings of fact which are perverse and also the trial Judge did not properly evaluate and give appropriate value and so this court should intervene and make the necessary correction. He cited Adebiyi Layinka &. anor v. Adeola Makinde & 5 Ors (2002) 10 NWLR (pt. 775) 358 at 370 &. 375; Ebe Ebe Uka v. Chief Kalu Okorie Irolo (2002) 7 SCNJ 137; the State v. Ajie (2000) 11 NWLR (Pt. 678) 434 at 499; Onwugbufor &. 2 Ors v. Okoye &. Ors (1996) 1 SCNJ 1.
Learned counsel for the Appellants said the learned trial Judge admitted Exhibit 10 in the course of the trial and expunged same in its judgment and the findings of the trial Judge on Exhibit 10 was based on wrong proposition of law and this court should also hold same. He referred to Nigerian Telecommunications ltd v. Ogunbiyi (1992) 7 NWLR (pt. 255) 543 at 550.
Learned counsel for the Respondent, Mr. Adedipe submitted that the fact that the two loans were secured by the Appellants with their fixed deposit account, landed property at Suleja covered by the Certificate of Occupancy and director’s personal guarantee. That the fact that the Appellants made part payment of the debt to the Respondent during the pendency of the proceedings in July 2002. Also that the fact that the Appellants instructed their counsel to settle the matter out of court and to offer the Respondent N50,000.00 monthly installmental payment until the whole debt was liquidated. That the Appellants had applied for and were granted N2.8 million loan additional N5 million loan by the Respondent in 1999, were admitted by the Appellant’s and all the conditions attached to the granting of the loans were accepted by the appellants. That the above facts were admitted and need no further proof. He cited Section 75 Evidence Act, Joe Golday Ltd & ors v. Co-operative Development Bank Plc (2003) 26 WRN 1; Arjay Ltd v. Airline Management Support Ltd (2003) 15 WRN 101; Agbanelo v. Union Bank of Nigeria Ltd (2000) 2 SCNQR 415; IFA International Ltd v. Liberty Merchant Bank Plc (2005) 14 WRN 107.
Learned counsel for the Respondent said it is now well settled that parties are bound by their pleadings and the terms of contract entered into by them. That the Appellants did not prove paragraph 6 of their Amended Statement of Defence and it was deemed abandoned by the court and that the Respondent’s evidence through PW1 was unchallenged by the defence and so the court should act on it. He cited Broadline Ent. Ltd v. Monetary Maritime Corporation &. Ors (1995) 10 SCNJ 1 at 5; Ezulumeri O. &. Anor v. Adinnu Akabeze &. Ors (1992) 2 SCNJ 76; L.S.D.P.C. &. anor v. Nig. Land &. Sea Foods Ltd (1992) 6 SCNJ 243; Iriri v. Erhurhobara (1991) 3 SCNJ 1 at 9 – 12.
Mr. Adedipe stated that Appellants were served with demand notices by the Respondent without any reply by the Appellants (Exhibit 7). That on the issue of admitted facts, the question would be if a counsel can admit on behalf of his client and the answer is yes. He cited Sections 19 and 20 Evidence Act; Cappa Ltd v. Akintilo (2003) 27 WRN1 at 4 – 5.
Learned counsel stated that the Appellants through counsel made three installmental payments all amounting to N300,000.00 in the course of proceedings and Appellants’ counsel also went ahead to offer to settle the balance installmentally at N50,000.00 monthly which latter the Respondent rejected as too paltry. That the 2nd Appellant as DW2 had confirmed that the Appellants actually instructed their counsel to make the above offers for settlement to the Respondents. That the above admission cannot be resiled from now.
Mr. Adedipe said the trial court was right in disbelieving the Appellants’ witnesses and that there was no time the Appellants demanded for the return of their collaterals to them by the Respondent.
That is in summary the submission of counsel on either side inclusive of the judicial authorities in support for which ever position. Briefly the positions of the parties are:-
- It is not in dispute that the Appellant sought for and obtained a loan facility totaling N7,000,000.00 (seven million naira) from the Respondent.
- Also not in contention is that some payments in the quest to offset the loan and interest accruing thereto had been made by the Appellants to the Respondent.
- The contest is that while the Appellants claim the Respondent had not properly furnished them with the full status of the loan facility vis-a-vis some of the repayments made by the Appellants, thereby creating some confusion as to the amount unpaid and due. The Respondent contends that that position is not accurate. It was based on this area of contention that the Respondent implored the lower court to expunge Exhibit 10 already admitted for having been made by the witness who was hired by the Appellants as he was suspected to be an interested party which denied his evidence and exhibit the status of that of an expert. Furthermore the Respondent submitted that the learned counsel for the Appellants admitting in court for the installmental payments to offset the loan is to be taken as the admission of his client, the Appellants and so cannot now be resiled from by the Appellants at this stage by disputing the amount owed that the essence of the admission meant they were aware of what was due to be paid.
The essence of a statement of defence is to secure from the defendant as many admissions as the facts and circumstances of the case necessitate so as to narrow the scope of the case to be tried. L.S.D.P.C. v. Banire (1992) 5 NWLR (pt. 243) 620. It is in the light of the above principle that there is the need to recast some relevant portions of the Evidence Act which have provided for admissions by a party to a suit.
Section 75 Evidence Act:-
No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
Section 19 Evidence Act:-
An admission is a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, hereinafter mentioned.
Section 20 Evidence Act:-
(1) Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards, in the circumstances of the case, as expressly or impliedly authorized by him to make them are admissions.
(3) Statements made by-
(a) Persons who have any proprietary or pecuniary interest in the subject matter of the proceedings, and who made the statement in their character of persons so interested; or
(b) Persons from whom the parties to the suit have derived their interest in the subject matter of the suit; are admissions, if they are made during the continuance of the interest of the persons making the statements section 60 Evidence Act:
Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant.
The admission upon which the Respondent is hinging their argument stem from the fact of the Appellants part payments of the debt to the Respondent during the pendency of the proceedings in July, 2002 (N200,000.00t November 2002 (N50,000.00) and January 2003 (N50,000.00). Also the fact that the Appellants instructed their counsel to settle the matter out of court and to offer the Respondent N50,000.00 monthly installmental payment until the whole debt was liquidated including the learned counsel for the Appellants’ information in the open court in relation to the instalfmental payment offer by them and the need to settle out of court.
It is to be reiterated that a statement written or oral made by a party to a civil proceeding is evidence against him of the truth of the facts asserted on the statement.
In order to found admission on an oral testimony the evidence must be clear and unambiguous. The value of an admission depends on the circumstances in which it is made. It is however, for the trial court to decide the issue and to give due weight to the alleged admission and the explanation, facts or circumstances. In the instant case the trial court had held that the statement in open court made by the appellant’s counsel what they were prepared to pay as damages comes within the definition of admission in Section 19 of the Evidence Act Cappa & D’Alberto Ltd v. Akintilo (2003) 9 NWLR (pt. 824) 49 at 69; Tobi JSC; Iga v. Amakiri (1976) 11 SC 1.
In Cappa & D’Alberto Ltd v. Akintilo (2003) 9 NWLR (pt. 824) 49 Supreme Court; had this to say:-
An admission is a statement, oral or written, express or implied, which is made by a party to a civil proceedings or his agent and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement. In civil cases, admissions by a party are evidence of the facts asserted against, but not in favour of such party. Unless explanations are given which satisfy the court that admissions should not be so regarded, due weight should be given to them as such Ashibuogwu v. Attorney-General Bendel State (1988) 1 NWLR (pt. 69) 138; savannah Bank Plc v. Opanubi (1999) 13 NWLR (pt. 634) 203; Ogunnaike v. Ojayemi (1987) 1 NWLR (pt. 53) 760; Mohammed v. Local Government Police 1970 NWLR 98; seismograph Services (Nig.) Ltd v. Eyuafe (1976) 9 -10 SC 135.
The learned trial Judge at the instance of the Respondent’s counsel had made a lot of fuss on what they said was admission by the Appellants of indebtedness of the amount claimed which conclusion they arrived at when counsel announced that his counsel said his client wanted settlement out of court and also their willingness to make instalmental payments to offset the debt. And that what is not denied is deemed admitted. Thus, where a party admits a fact, it is deemed as established and forms of the agreed facts of the case. He cited I.F.A International Ltd v. Liberty Merchant Bank Plc (2005) 9 NWLR (pt. 930) 274 per Salami JCA; seismograph Services (Nig.) Ltd v. Eyuafe (1976) 9 – 10 SC 135; Temile v. Awani (2001) 12 NWLR (Pt. 728) 726; Kimdey v. Government of Gongola State (1988) 2 NWLR (pt. 77) 445; The British India Insurance Co. (Nig.) Ltd v. Thewards (1978) 3 SC 143; Okpareke v. Egbuonu 7 WACA 53.
It is necessary to remind oneself that where the trial Judge failed to make a proper use of the opportunity of seeing, hearing and observing the witnesses at the trial or to exercise his discretion properly, or where the findings cannot be regarded as resulting from the evidence or where it has drawn wrong conclusions from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the court, the appellate court will be at liberty to intervene and to make the necessary findings from such evidence. Onwugbufor v. Okoye (1996) 1 SCNJ 1; Adebiyi Leyinka v. Makinde (2002) 10 NWLR (pt. 775) 358; Uka v. Irolo (2002) 7 SCNJ 137; State v. Ajie (2000) 11 NWLR (pt. 678) 434.
From what is available what transpired did not qualify as admission for which the Respondent did not need further proof in evidence. I have no difficulty in resolving this issue No.1 in favour of the Appellants.
ISSUE NO.2
Is the learned trial Judge right in law to have held that Exhibit 10 tendered through DW1 is inadmissible in evidence by virtue of section 91(3) of the Evidence Act.
Learned counsel for the Appellants stated that the evidence of DW1 and Exhibit 10 virtually challenged the Respondent’s evidence and showed the inconsistent interest rates and strange accounts. That DW1, a professional accountant and gave evidence as an expert which evidence was not discredited or shaken by the Respondent and so that evidence should be acted upon by the court. He referred to Elf Nigeria Ltd v. Opara Sillo & anor (1994) 7 – 8 SCNJ 119. That Exhibit 10 was specifically pleaded in paragraph 27 of the Statement of Defence. That DW1 is an independent party having nothing to gain or Jose in the case before the trial court apart from discharging his professional duty. He cited Odunsi Apena v. Aiyetobi (1989) NWLR (pt. 95) 85; Highgrade Maritime Services Ltd v. FBN Ltd (1991) 1 NSCC 119; Bearmans Ltd v. Metropolitan Police District Receiver (1961) 1 WLR 634; The case of The Atlantic &. The Baity (1946) 62 TLR; Evan v. Noble (1949) 1 KB 222; Nigeria Telecommunications Ltd v. Ogunbiyi (1992) 7 NWLR (pt. 255) 543 at 550; Nicon v. Nze (2004) 15 NWLR (pt. 896) 245 at 250, Shell Petroleum Co. (Nig.) ltd v. Abel Isaiah &. Ors (1997) 6 NWLR (pt. 508) 236 at 249 – 251; Yakubu v. Governor of Kogi State (1995) 9 SCNJ 122.
Learned counsel for the Appellants submitted that there is no employer/servant relationships between DW1 and the Appellants and even if there was there are extenuating circumstances since there was no real likelihood of bias to be shown before the DW1 was tagged an interested person by the Respondent. He cited Highgrade Maritime Services ltd v. First Bank of Nigeria ltd (1991) 2 LRCN 394 at 397; Adetoro v. Ogoluwa Kitan Trading Co. Ltd (2002) 9 NWLR (Pt. 771) 157.
In response learned counsel for the Respondent submitted that Exhibit 10 was based on very shaky and fallacious grounds. That it was properly expunged by the trial court from the records since it was prepared by DW1 at Appellant’s instance during the pendency of the proceedings at the trial court. That the Respondent was never contacted by the DW1 to make any comments or inpute thereto and that both DW1 and the Appellants were “interested persons” caught in the web f Section 91(3) Evidence Act; Ogidi v. Igba (1999) 6 SCNJ 107; Ita v. Ekpenyong (2001) 9 WRN 147; Ogbahon v. Registered Trustees C.C.C.G. (2001) FWLR (pt. 80) p. 1496.
Mr. Adedipe further stated that on the provision of Section 227(2) Evidence Act even if Exhibit 10 was wrongfully excluded by the trial court that would not have made any difference to the trial court’s verdict since other hard facts before that court grossly contradicted Exhibit 10. He cited Section 60 Evidence Act and Dagaci of Dere & ors v. Dagaci Ebura & ors (2006) All FWLR (pt. 306) 786 at 793 – 794
A part of the judgment relevant to the issue being debated states as follows:-
“…………………There is no doubt that the defendant engaging the services of a chartered accountant to audit their account when the matter was pending in the court and the accountant himself admitted he was aware the matter was in court -makes him a person interested. He took the auditorship for a retainership (sic) thus making him an interested person. Though during the trial the plaintiff did not object to the tendering of Exhibit to complaint of the inadmissibility of Exhibit to can be made at will as the law permits such. And the court has the power so to expunge on improperly admitted evidence. For this reason therefore the exhibit is hereby expunged from the record. See the case of Ita v. Ekpenyong (2001) 19 WRN 149″.
The evidence in issue including the Exhibit 10 admitted during the trial and expunged at judgment is the evidence of DW1, Tauhid Olawale Shorunke of the Chartered Accountancy Firm of Olawale Shorunke & Co. He gave complete evidence of his qualifications and experience and he went on to state:-
‘I know Alhaji Bala as the Chairman of Al-Braiyah Nigeria Limited. I know Intercity Bank through my client, we were approached by the Chairman of AI-Braiyah Nigeria Ltd to carry out what we call a bank transaction audit on the operation of the current account of the company with the Intercity Bank ……………The Company addressed to us by the name of the company by name Alhaji Bala forwarding to us the bank statement on the Accounts to be audited with the covering letter from the bank (Intercity Bank). Having been informed by the bank statement we were well informed to commence the duty. What we were commissioned to carry out is a bank transaction audit. The objective of such is usually to confirm the correctness and the validity of the balance that is disputed by the two parties i.e the Company on one hand and the bank on (sic) the other hand.
We said we wanted to have a statement of Account from the date when the account in dispute was opened to the disputed balance date. When we got the statement and started our work our examination disclosed that the opening date of the statement of account was 30/7/1999 to 31-7- 2003 …………………………………We then finalized our work of the analysis audit for the account by reversing, what I mean by reversing knocking off those transfers from the account that was (sic) not taken into consideration. On the basis of this we now issued our final report to the client, stating that in the instance if those debit had not been done by the bank, the question of the Account being overdrawn would not have arisen. By computation if the balances, are now knocked off 85 we had done, because they were not supporte4 the bank should now be holding a credit balance of about 1.9 million naira for the company as against the 13 million naira the bank is claiming to be overdrawn by the company. As a follow up to our final report we did what we call a report to the auditors, and executive summary, summarizing how we had been engaged, what we did, our findings and the summary of two of our reports …………….This is the report ram talking of (That report was tendered and admitted in evidence without objection as Exhibit 10).
DW1 stated further:-
”By way of conclusion our professional opinion is that if the bank cannot explain/ justify and support the two debit entries transferred into this account then the account was not overdrawn and by our own computation/the company AI-Braiyah has a credit balance of about 1.9mil/ion naira as at 31-7-03 ………… The credit transfer made into this account was closure of the cal/ deposit account, its an investment account closed and transferred into the account in dispute. It’s in favour of the client. Ordinarily too, what the bank should do is to furnish the customer with a comprehensive record of the Statement i.e. month by month, record of interest that the investment has generated. That was not the case here, it was just a single statement closing it and transferring it”.
Under cross-examination DW1 went on to say:-
“I was engaged by the defendant in August 2003. I was told the balance was disputed but I did not know the matter was in court. I got to know later … I worked on what is on the record before me and not what the defendant told me”.
DW2, Jibrin Bala who is also the 2nd Appellant said he opened the account with the bank in September/October 1997. He stated on:-
”Since we opened that account all lodgment of Al-Braiyah goes into that account. We started lodgment into that account from 30/10/97. Exhibit 8(Statement of Account from the Bank) does not cover our transaction with the bank. It started only from 30-7-99 to the year 2003. It left out our transaction between October – December 1997 and January 1998-December 1998 and January 1999- 29th July 1999. The transaction not covered in Exhibit 8 which the following in 1997, the sum of 7 million, 134,380.90. In January 1998 – December 1998 we made cheque lodgment of 16mil/ion, 525,575.65k. From January 1999 to 20th May 1999 we made lodgment of 29 million, 627,431.76k …….. I said we made lodgment of 29 mil/ion – the break down of the 29 million is as follows- on 5/1/1999 on cheque NO.002345081 we received a cheque from the Ministry of Finance Niger state to the tune of 8million naira only. About the 19th March 1999on cheque NO.002571919 we were paid 6million 018,561.78 and we paid the cheque into our Account NO.785 with Intercity Bank. On 30/5/99 we received a cheque of 15million, 608,872.00 cheque NO.007279941 and we paid the money into our account with Intercity Bank. On 1st June 1999 we made lodgment of cash N270,940.95k. If I see the lodgment of money I can identify it from the Account Number and the teller of Intercity Bank. These are the two tellers”.
The two tellers were admitted without objection as Exhibits 11(a) and 11(b). The DW2 also said the Respondent moved the money in Appellant’s fixed deposit into the current account without consultation and without authorization from the Appellants. That his position is that they are not owing the bank is based on the chartered accountant’s report, Exhibit 10.
Respondent on their part through Mathias Ogwuche PW1 testified as follows:-
“I am the credit officer of Intercity Bank Minna ………….. I know the defendants in the case ……………..In 1999, AI-Braiyah Nigeria Ltd applied for a corporate term loan of 2.8 million naira The application of 2.8 million Naira was processed and approved on 24-5-999 to be repaid within 2 months but not later than 31-7-99″.
The approval letter was admitted as Exhibit 2. He stated on:-
”After the loan was approved Alhaji Jibrin Bala accepted on behalf of Al-Braiyah Nigeria Limited …………. The loan was secured by a fixed deposit of 1 million naira. After all formalities the money was given to the Company Al-Braiyah Nigeria Limited and when it was time for repayment on the 31-7-99, the company did not pay and instead applied for an overdraft of 5 million naira. (The application was admitted as Exhibit 3) …………When we got that application, it was processed and approved in August 1999 to be paid back within 12 months. (Approval admitted as Exhibit 4) one of the terms of the facility is that the facility will be secured by a legal mortgage over Alhaji Jibrin Bala’s landed property ………………..it is also secured with the initial deposit of 1 million Naira which was then increased to 3.5 million naira and personal guarantee of the Director-Alhaji Jibrin Bala for 5million naira. If I see the personal guarantee I can identify it …………..It is executed before Intercity Bank and Alhaji Jibrin Bala and it is also stamped for 5million naira. This is the guarantee letter (Guarantee admitted as Exhibit 5) ………….After taking the 2 facilities that is the time loan and the overdraft, the total indebtedness of Al-Braiyah Nigeria Limited as at August 1999 stood at 7.8 million naira. When it was time for repayment he refused to pay, AI-Braiyah and Alhaji Jibrin Bala refused to pay the outstanding debt. Intercity Bank sent a representative to meet Alhaji Jibrin Bala with a view to liquidating the debt of Al-Braiyah Nigeria limited but the meeting failed to yield the requirement result various letters were also written but he failed to pay. In February 2001, the bank decided to terminate the fixed deposit to reduce AI-Braiyah’s debt. As at the time of termination, the principal and accrued interest on the fixed deposit stood at N4,352,164.68 i.e four million three hundred and fifty two thousand one hundred and sixty four naira against Al-Bra/yah outstanding of N10,588,031.94k after terminating the deposit, Al-Braiyah’s debt reduced to N6,213,687.26k. After this the bank wrote to AI-Bra/yah to pay the outstanding balance but the company still failed to pay off”.
Under cross-examination PW1 said:-
”I have been working at the Credit officer in that Bank since 1994. As at 1999 the Director of Al-Braiyah had one million naira in his fixed deposit account. The defendant’s lawyer wrote requesting for a statement of Account of the defendant and we obliged through our solicitor. I do not know if following the statement of Account the defendant’s lawyer wrote the bank for clarification of some issue”. That was the only witness of the Respondent who closed their case with that testimony of PW1.
The evidence as stated above and this judgment of court tell the story of what transpired fully. As a repetition Exhibit 10, the report of the DW1, charted accountant hired by the Appellants though admitted without objection was expunged at the judgment by the learned trial Judge.
It is therefore needful to take a look at some statutory provisions and judicial authorities in relation to the evidence and the decision especially, in regard to that Report, Exhibit la, its validity or otherwise.
By virtue of Section 227(1) of the Evidence Act, a wrongful admission of evidence is not of itself a ground for the reversal of a decision where it appears on appeal that such evidence cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. Dagaci of Dere v. Dagaci of Ebura (2006) 7 NWLR (pt. 979) 382 at 432; 461 – 462; Okoro v. State (1998) 14 NWLR (pt. 584) 181.
Where inadmissible document is wrongfully received in evidence in the trial court, an appellate court has inherent jurisdiction to exclude and discountenance the document even though counsel at the time did not object to its going into evidence. In other words, when evidence which is inherently inadmissible is improperly let into the proceedings an appellate court will discontinue the evidence wrongly let into the proceedings Dagaci of Dere v. Dagaci of Ebura (2006) 7 NWLR (Pt. 979) 283 at 425, 429; Ipinlaiye II v. Olukotun (1996) 6 NWLR (pt.453) 148.
When a matter or document has been improperly received in evidence, both the trial court and the appeal court have powers to expunge it from their record and the appeal court have powers to expunge it, from then decide the case on the properly and legally admitted evidence. Ita v. Ekpenyong (2001) 1 NWLR (pt. 695) 587 at 613 per Ekpe JCA; Ajayi v. Fisher (1956) SCNLR 279; Sadhwani v. Sadhwani (Nig) Ltd (1989) 2 NWLR (pt. 101) 72; Owonyin v. Omotosho (1961) 2 SCNLR 57, Chigbu v. Toninas (Nig) Ltd (1999) 3 NWLR (Pt. 593) 115; Agbaje v. Adigun (1993) 1 NWLR (Pt. 269) 261.
In Shell Petroleum Development Co. v. Isaiah (1997) 6 NWLR (pt. 508) 236; it was held:
- Under Section S7 of the Evidence Ace the opinion of experts in foreign law, nature law and custom, or of science or art etc are relevant facts.
- Where the evidence of an expert is not challenged or contradicted, the court should rely on his evidence. However for the evidence of the expert to be so treated, he must be called as a witness to testify as to his experience and qualification so that he could be cross-examined thereon. Obanor v. Obanor (1976) 2 SC1; seismograph v. Onokpasa (1972) 1 NWLR 343.
- The evidence of an expert will amount to hearsay where such expert merely gives his opinion on a report and is not called as a witness and cross-examined. Shell v. Otoko (1990) 6 NWlR (Pt. 159) 693. Nicon v. Nze (2004) 15NWLR (pt. 896) 245 per Adeniyi JCA.”
“It is risky for a court to simply ignore or wave aside an expert opinion expressed by an expert in the field concerned. A doctor is an expert on health matters and his opinion cannot be disregarded for trivial reasons. To reject an expert opinion, the court needs to have very cogent reasons for doing so, such as where there is a contrary and reliable expert opinion on the same subject. In the instant case, only exhibit L1, the medical report was tendered and there was no other evidence available to contradict same. Hence, it so good in relation to the appellant’s case”. Shell Petroleum Development Company (Nig) Ltd v. Isaiah (1997) 6 NWLR (Pt. 508) 236.
Apena v. Aiyetobi (1989) 1 NWLR (pt. 95) 85 per Akpata JCA (as he then was) said:-
A surveyor who prepares a survey plan in respect of a parcel of land in dispute in a pending case and tenders it in evidence is not a ”person interested” within the con of Section 90(3) of the Evidence Act.
A surveyor or any expert in his field of knowledge who makes a statement in any form in respect of a matter is court, at any stage of the proceedings is generally regard as a person who has no temptation to depart from the truth as he sees it from his professional expertise.
There must be a real likelihood of bias before a person making a statement can be said to be a ‘person interested’ within the meaning of Section 90(3) of the Evidence Act.
In the instant case, it was a misconception by the learned trial Judge of the import of Section 90(3) of Evidence Act in holding that preparing a survey plan to show the area claimed by the defendants after an action had been instituted against them, and that to admit such a plan in evidence would amount to admitting in evidence a statement made by a person interested in the pending or anticipated proceedings”.
Also in the case of Ogidi v. Igba (1999) 6 SCNJ, it was held where the writ was issued on 9th October, 1976 and the Exhibit S, a Deed of Lease on the 13/10/76, five days after the suit was filed was of no consequence to the court action of the respondents as plaintiff’s and so the refuge sought by appellants under Exhibit S’s alleged illegality and inadmissibility as evidence is a big storm in a tea cup.
A person is held not to be interested under Section 90(3) of the Evidence Act when he has no temptation to depart from the truth on one side or the other- a person not swayed by personal interest but completely detached, judicial impartial and independent. It is not in all circumstance where a servant of an employer wrote a document on the latter’s (i.e the employer’s) behalf that it becomes inadmissible by virtue of Section 90(3) of the Evidence Act. The mere fact that he was the author of certain exhibits in his capacity as servant of the Respondent Bank and which is a party to the present suit, did not make him a party interested as he had no direct interest in the matter. Per Wali JSC Highgrade Maritime Services Ltd v. F.B.N. Ltd (1991) NSCC 119; Bearmans Ltd v. Metropolitan Police District Receiver (1961) 1 WLR 634; The Atlantic and the Baltyk (1946) 62 T.L.R. 461; Evon v. Noble (1949) 1 KB 222; Aguda – Law and Practice Relating to Evidence pp. 168 – 175.
Narindex Ltd v. N.I.M.B. (2001) 4 SCNJ 208. The Supreme Court held in circumstances akin to the present and which are on all fours:-
“From his evidence PW2 has substantially complied with the requirements of the provisions of section 97(2)(e) on the admissibility of the Statement of Account, Exhibit 18. It is not necessary according to law that the words of the Section must be strictly followed word by word before secondary evidence of the entries in the ledger of the bank is admitted in evidence once there is substantial compliance. The learned trial Judge was wrong to have expunged the statement of account Exhibit 18 which was in fact admitted without objection by the appellants Exhibit 18is a valid document which can be relied upon by any court”.
The duty of court is to consider the evidence produced before it and never to proceed to indulge in speculations as to what might have happened, nor, must a court substitute its own supposition for the testimony of witnesses given on oath before it. Where a trial court acts on speculation rather than evidence then it has abandoned its proper role and the Court of Appeal will be duty bound to interfere with a trial court’s exercise of its discretion in such circumstance. Nicon v. Nze (2004) 15 NWLR (pt.896) 245 at 263 – 264; Okorogba v. State (1992) NWLR (pt. 222) 244; Nwobodo v. Nwobodo (1995) 1 NWLR (pt. 370) 203; Oversea Construction Ltd v. Creek Enterprises (Nig) Ltd (1985) 3 NWLR (pt. 13) 407; Evon and Evon v. Noble (1948) KB222.
From balancing the two contending pieces of evidence and relating them to the judgment, some basic issues arose, on whom the burden lies and how a party especially the plaintiff must prove his case.
In civil cases, it is the plaintiff who must first prove his case and make it strong enough to support his pleadings and any weakness or failure on the part of the defendant cannot alleviate this primary burden on the plaintiff.
A plaintiff must succeed or fail on the strength of his case and the evidence which he brought to court, any weakness in the defence notwithstanding. Thus, no matter how manifestly unreliable or weak the case of the defence may be, the plaintiff to succeed in his claim has the primary function of convincing the court that he has a good case. Whether a defendant adduces or does not adduce any evidence, at the trial, that fundamental and primary burden which the law at the outset places on a plaintiff who wishes to succeed in his claim remains Kodilinye v. Odu (1935) 2 WACA 336; Coblah v. Gbeke (1947) 12 WACA 294; Umeojiaku v. Ezenamuo (1990) 1 NWLR (pt. 126) 256; Alibe v. Yaro (2002) 1 NWLR (pt. 747) 238 at 257.
From what I have discerned from the evidence and the conclusion of the learned trial Judge, she seemed to have gone outside the pleadings including the further amended pleadings of the Appellants and the evidence balanced against each other to have come to the decision she made both in expunging the Exhibit 10 which was clearly an expert opinion not contradicted and nothing showed that the witness to be an interested party as she held. This is because that he was hired by the Appellants during the pendency of the matter to carry out the assignment of analyzing the statement of account did not make him either an interested party or a biased one for that matter, with nothing to back the assertion. There was no breach of Section 91(3) of the Evidence Act. Highgrade Maritime Services Ltd v. FBN Ltd (1991) NSCC 119; Apena v. Aiyetobi (1989) 1 NWLR (pt. 95) 85; NICON v. Nze (2004) 15 NWLR (pt. 896) 245. ”
The situation calls to mind the caution of the Supreme Court in when it said through Ogundare JSCthus:-
“A trial court should not make a case for a party different from that party’s case. Thus, the court should not go outside the facts pleaded for a party to find for him”. UBN (Nig) Plc v. Emole (2001) 18 NWLR (Pt. 745) 501 at 518; Aermacchi v. A.I.C. Ltd (1986) 2 NWLR (pt. 23) 443.
From what I have said above it is clear to me that the Respondent as plaintiff did not prove their case in the court below on the preponderance of evidence since the Appellants as defendants made out a stronger defence that even showed they were not in debit and that the Respondent were merely using a position of strength to emasculate them and push them into the tight corner from where they were clearly anxious to settle one way or the other so that peace could reign. This is supported by the unilateral closure of the fixed deposit account of the Appellants without reference to them.
In conclusion this appeal has loads of merit and is allowed. I set aside the judgment of the court below alongside all the orders she made. I award N30,000.00 to the Appellants to be paid by the Respondent.
Other Citations: (2009)LCN/3120(CA)
