Ali Pinder Kwajafa & Ors V Bank Of The North Ltd (2004)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting in Jos, Plateau State delivered on the 9th of December, 1998, wherein the appeal of the appellants herein was dismissed, thus affirming the decision of the trial High Court of Borno State. The claim of the appellants, herein, as the plaintiffs, before the trial court as per paragraph 24 of the further amended statement of claim/and reply to counter-claim was in these terms:-

“1. Declaration that the purported deed of legal mortgage dated 13th October, 1982 between the parties to this case is void, ineffective and of no effect whatsoever.

2. That there is no legal mortgage existing between Ali Pindar Kwajaffa, Hussaini M. Aliyu and Ali Pindar Kwajaffa Garage Ltd. and the Bank of the North relating to the properties covered by certificates of occupancy Nos. BO/1621 and NE/1367 purportedly mortgaged to the defendant by the plaintiffs.
3. Declaration that the second plaintiff is a minor and could not legally and validly enter into any agreement with the defendant at all times material to this case.
4. Declaration that the plaintiffs did not guarantee any person be it natural or corporate in this purported deed of mortgage.
5. Declaration that the defendant cannot sell by public auction any of the properties covered by certificates of occupancy Nos. BO/1621 and NE/1367 properties of the plaintiffs.
6. Declaration that the second plaintiff never consented to any matter relating to the transfer of his property covered by certificate of occupancy No. BO/1621.
7. Declaration that the plaintiffs are not indebted to the defendant to warrant the sale of the plaintiffs properties by the defendant under a purported deed of a legal mortgage.
8. A perpetual injunction restraining the defendant, its servants, or privies from trespassing into the plaintiffs’ properties, nor conducting any purported sale of the plaintiffs’ said properties covered by certificates of occupancy Nos. BO/1621 and NE/1367 or any of the plaintiffs’ properties.
9. Declaration that the plaintiffs had paid whatever loan taken from the defendant sometimes ago.
10. An order commanding the defendant to release the certificates of occupancy of the plaintiffs’ illegally being held by the defendant as a result of the purported deed of mortgage.
11. The plaintiff’s claim costs of his suit.”

The defendant, the respondent herein, denied the appellants’ claims and in paragraph 2 of the counter-claim subjoined to its further amended statement of defence, the respondent counter-claimed against the appellants for the following reliefs:-

“(a) A declaration that there is subsisting legal mortgage between the plaintiffs and the defendant.

(b) A declaration that the defendant is entitled to N1,858,622.15 as at 28th July, 1993 with interest on the said outstanding amount from the 28th July, 1993 to 1st January, 1994 and 21% on the outstanding sum from the 1st January, 1994 until liquidation of the outstanding sum.”

The facts as found by the learned trial Judge and succinctly summarised by the Court of Appeal as per the judgment of Edozie, J.C.A. (as he then was) were put as follows:-

“From the pleadings filed, oral evidence of witnesses called by the parties and the numerous documentary evidence tendered, the facts of the case leading to this appeal may be summarised as follows: .

As far back as the year 1980, the 3rd appellant had an account with the respondent bank. The account number is 400127. Initially the 3rd appellant was granted an overdraft facility for the sum of N80,000.00. by the year 1982, the outstanding amount of the overdraft stood at N487,375.50. At the instance of the appellant the respondent bank converted the overdraft amount into a loan account and the account number was variously referred to as 400127/62586,44014/62586/400127 pursuant to the conversion, the appellants mortgaged to the respondent bank properties covered by certificates B0/1621 and NE/1367 belonging respectively to the 2nd and 1st appellants. A deed of legal mortgage dated 13/10/1982 registered as No. 347 at page 347 Vol. 7 (Misc) of Land Registry in the office at Maiduguri (exh. C) was executed by the parties with the 1st and 2nd appellants as mortgagors and sureties, 3rd appellant as the borrower and respondent as the mortgagee. It is the appellant’s case that in November, 1982 when the respondent drew their attention to the outstanding amount, the 1st appellant and the respondent agreed that the amount should attract interest at the rate of 13% but rather than adhere to this agreement, the respondent inflated the interest rate. The appellants further claimed that they had paid to the respondent bank the sum of N1,189,963.26k; that the 1st appellant again paid under duress the sum of N300,000.00 and finally that the Nigeria Bank of Commerce and Industry (NBCI) paid on their behalf the sum of N82,257.74 on 19/7/84. By reason of these payments, the appellants contend that they have fully liquidated their indebtedness to the respondent bank. They relied on the 3rd appellant’s account which was admitted in evidence as exhibit “B”. On its part, the respondent denied reaching agreement with the 1st appellant on the interest rate maintaining that the interest rates are charged in accordance with the Central Bank guidelines. The respondent admitted that the 1st appellant paid the sum of N300,000.00 but denied it was paid under compulsion. It is the respondent’s case that the appellants are still indebted to it to the tune of N1,858,622.15 as at 28th July, 1993. Regarding the sum of N82,297.74 paid by the NBCI, the respondent explained that the NBCI paid the amount for the release of another C of 0 No. NE/154 held by the respondent as security for another overdraft of N40,000.00 it granted to the 3rd appellant which had risen to N82,297.14. The NBCI took that step so as to use the C of O No. NE/154 as security for its own loan to the 3rd appellant. By a letter dated 19/3/1984 exhibit J4, the respondent bank reminded the 3rd appellant of its default in the repayment of the loan and in response the 1st appellant by letter dated 29/3/1984 exhibit J pleaded for time to repay the loan. As the appellants were unable to liquidate the loan, the respondent in accordance with terms of the legal mortgage served them notice of its intention to exercise its power of sale.”

It should also be mentioned that the 2nd appellant was said to be a minor and could not legally be a party to the deed of the legal mortgage. That deed of legal mortgage, as far as his property was concerned, was null and void and of no effect, since as a minor, he could not transfer his property by means of a legal mortgage.

After the hearing of evidence the learned trial Judge dismissed in their entirety the plaintiff’s claims and entered judgment in favour of the defendant in its counter-claim. The plaintiffs appealed to the Court of Appeal and in the Court of Appeal, the plaintiff submitted five issues for the determination of the appeal. In summary the issues were (1) whether the defendant could transfer, money funds or liabilities from one account to another without the consent of the plaintiffs. (2) whether having regards to exhibits J, J4 and J5, the defendant could be said to have been put on notice on the existence of the loan account. (3) whether having regards to exhibits J, J1 to J5, the defendants had discharged the burden of proof as required in a declaratory judgment. (4) whether the defendant had proved its counter-claim, when the plaintiff failed to put a defence in respect of paragraph 1 of the counter-claim and (5) whether in proper evaluation of the exhibits E, Band H12, the defendant could legally charge interest on the loan account.

The Court of Appeal discussed these issues and in its judgment dismissed the appeal and affirmed the decision of the trial court with respect to the counter-claim. This is now a further appeal to this court.

The notice of appeal contains six grounds of appeal and they read as follows:-

“Grounds of appeal

1. The learned Justices of Court of Appeal erred in law when they held as follows:-

” … The respondent requested for security and the appellants had to provide the properties covered by certificate of occupancy Nos. BO/1621 and NE/1367 which were mortgaged to the respondent. Having done so, it does not be in their mouth to turn round to impugn the validity of exhibit ‘B’ on the ground that the consents for the transfer of the properties were irregular. .. ‘

(italics mine) and this error occasioned a miscarriage of justice.

Particulars of error

(a) From the evidence of 2nd appellant it was clear that he is neither a customer to the respondent

and that by virtue of exhibit ‘E’ he is the owner of the property covered by certificate of occupancy No. BO/1621

(b) It is in evidence that the necessary consent for the transfer of the properties were not sought and had.

(c) It is also in evidence that at the time the deed of mortgage was executed, the 2nd applicant was a minor and could not have entered into a legally binding contract.

(d) It is not in evidence that the 2nd appellant by any stress of imagination benefited from the grant made to the 3rd appellant if any.

2. The learned Court of Appeal Justices misdirected themselves in law when it held as follows:-

” … from the available evidence on record the respondent was entitled to the 1st relief granted

on the counter-claim … ”

Particulars of misdirection

(a) From the available evidence on record the respondent did not establish its entitlement to the 1st relief claimed.

(b) The 1st relief being a declaratory relief the respondent did not lead credible evidence to warrant the grant of the relief.

(c) The DWI evidence on the printed record does not support the claim.

(d) It is trite principle of law that for a declaratory relief to succeed there is the need to lead evidence in support.

3. The Court of Appeal erred in law in confirming the decision of the trial court, when the trial court failed to properly consider the documentary evidence tendered by the appellants which support the appellants case and which evidence were not contradicted and thereby arrived at a wrong decision.

Particulars of error

(a) The trial court as well as the Court of Appeal failed to draw proper inference on the documentary evidence tendered before the court.

(b) The evidence of PWI on exhibit ‘E’ as to the point that exhibit ‘E’ was unnecessary as at 13/10/82, which was not challenged was not considered by the trial court and appellate court.

c) It is trite principle of law that oral evidence cannot vary the contents of document in this case exhibits ‘E’, ‘B’, ‘G’ and ‘HI2’.

(d) It is clearly in evidence and remained uncontradicted that the 2nd appellant was never a customer to the respondent and did not borrow any money from the respondent.

4. The learned Justices of the Court of Appeal erred in law when it held that:

“It does not appear to me that the dispute the …they were indebted to the respondent … It is plain from the above paragraph that what the appellants were quarrelling about is the high interest charged on the x loan account.”

Particulars of error

(a) A careful perusal of the averment in paragraphs 11 – 14 of the further amended statement of claim reveals that the appellants denied indebtedness to the respondent in any form.

(b) If the court below had adverted to the paragraphs of the further amended statement of claim as well as the evidence led in support together with the documents tendered, the decision of the court below would have been different.

5. The Court of Appeal erred in law when it held as follows:-

“There is no evidence by way of bank tellers or any other document to support the payment. By a letter dated 29/3/98 … The statement of account exhibit ‘J3’ shows that between the date of writing that letter exhibit ‘J’ and 11/9/87 the appellants paid some amount the largest being the sum of N300,000.00 paid by cheque on 28/5/96. (Italics mine).

Particulars of error

(a) By evidence of PW1, 3 and 4 at the trial court, it was clear that the payment averred in the pleadings to have been made to the respondent i.e. N1,189,963.26 was not challenged.

(b) The respondent having admitted that as at the time account No. 400127 was closed, there was no further indebtedness by the appellants, it is incumbent on the respondent to establish how the appellants become indebted to it.

(c) It is not just enough to rely on formulated statement of account exhibit ‘]3’ without leading credible evidence on how the sum contained in the statement is arrived at.

6. The learned Court of Appeal misdirected itself when it held as follows:-

“As noted earlier, the statement of account exhibit ‘J3’ by the last entry therein reflects an outstanding debt balance of N1,856,622.15 as at 8/7/93. The account has not been falsified by the appellants. I am therefore of the firm view that exhibit “J3″ … is supportive of the 2nd relief sought by the respondent in its counter-claim.”

Particulars of misdirection

(a) From the totality of the evidence before the trial court and the printed record, the appellants were not the author nor did they tender the exhibit ‘J3′ to warrant its falsification.

b) The mere tendering of exhibit “J3” without leading credible evidence on how the sum indicated on same, how interest were charged do not warrant the grant of the claim on exhibit “J3”.

(c) A careful reading of exhibit “J3” reveals that it carries two account No. 400127/62586, while by exhibit “B” which indicated account No. 400127 the appellant (3rd) have discharged its obligation to the respondent.

(d) The respondent failed how a close account could be turned to loan account.”

In compliance with the rules of this court the parties have filed written briefs of arguments and at the hearing of this appeal both learned counsel relied on their respective written briefs. In his brief of argument for the appellants the learned counsel has identified and submitted to this court for the determination of the appeal the following four issues:-

1. Whether the Court of Appeal was right in law in affirming the decision of the trial High Court that the mortgage agreement between the 2nd appellant and the respondent was valid in law.
2. Whether the learned Justices of the Court of Appeal were right in law to have granted the 1st relief claimed by the respondent in the counter-claim.
3. Whether the learned Justices of the Court of Appeal were right in law to hold that the appellants were indebted to the respondents.
4. Whether the learned Justices of the Court of Appeal were right in law to hold that the learned trial Judge properly evaluated the evidence proffered in the case.”

The learned counsel for the respondent accepted the issues in his brief for the respondents.

Issue No.1

Now issue one is concerned with the decision of the court below in affirming the validity of the deed of legal mortgage between the 2nd appellant and the respondent. I have in this judgment reproduced the summary of the issues submitted to the Court of Appeal by the appellants for the determination of the appeal. In the appeal aforesaid, the validity of the deed of legal mortgage was not an issue that was raised for determination. The general rule adopted in this court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the Court of Appeal. See Okuojeror v. Sagay (1958) WRNLR 70; Pratt v. Haffner (1959) 4 FSC 82; Odesanya v. Ewedemi (1962) 1 All NLR 320. For any ground of appeal or any issue to be raised and argued at the Supreme Court, it should first have been raised and argued in the Court of Appeal, or with leave for the Supreme court. By logical extension, the general position is that an issue which is a fresh point entirely and not having been raised and argued in the Court of Appeal is not competent to be raised at the Supreme Court without leave. The rationale for this rule is that it is desirable for the Supreme Court to have the benefit of the opinions on such points in issue, of the Court of Appeal.

Where a party seeks to raise a fresh point in the Supreme Court, he must:-

(a) obtain leave of the Supreme Court

(b) ensure that the new points sought to be so raised involve substantial issues of substantive or procedural law which need to be allowed to prevent an obvious miscarriage of justice.

(c) show that no further evidence is required to resolve the issue for determination.

See Skenconsult(Nig.) Ltd. v. Ukey (1981) 1 SC 6; Uor v. Loko (1988) 2 NWLR (Pt. 77) 430; Adedeji v. N.B.N. Ltd. (1989) 1 NWLR (Pt. 96) 212; Oguma v. I.B. W.A. (1988) 1 NWLR (Pt. 73) 658; A-G., Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt. 92) 1; Oniah v. Onyia (1989) 1NWLR (Pt. 99) 514; Agbaje v. Adigun (1993) 1 NWLR (Pt. 269) 161.

It may also be argued that the true position of the law is that whereas a party to a suit cannot ordinarily without leave of the Supreme Court raise an argument not canvassed in the court below, that party can rely upon any new line of argument or new authorities, judicial or statutory, to support his argument in an issue which is properly before the Supreme Court.

In the instant case, the issue of the validity of the deed of legal mortgage between the 2nd appellant, and the respondent was not an issue or argument that arose for the determination of the appeal in the Court of Appeal.

I have stated above that the issue of the validity of deed of the legal mortgage was not raised by the appellant in the Court of Appeal. The observation made by the Court of Appeal to wit” … it does not lie in their mouth to turn round to impugn the validity of exhibit …” was made by reference to whether the consent for the mortgage was regular or not and not on the capacity of the 2nd appellant to sign the mortgage deed or to put it another way, whether the respondent made a case for the declaration sought by them that “there is a subsisting mortgage between the plaintiffs and the defendant.” It shall, perhaps be necessary to reproduce the portion of the judgment in order to show that the issue of the validity of the mortgage deed on the capacity of the second appellant was not discussed at all. The portion reads:

“A great deal of the pieces of evidence led in this case is purely documentary and not evidence based on credibility of witnesses. It will be necessary to examine these pieces of evidence to see to what extent they support the reliefs granted to the respondent on its counter-claim. With respect to the first relief, that is a declaration that there is a subsisting legal mortgage between the parties, the appellants through PW 1 tendered the said mortgage deed dated 13/10/82 which was admitted in evidence as exhibit “E”. This deed was made pursuant to the request of the appellants for their overdraft to be converted into a loan amount. The respondent requested for security and the appellants had to provide the properties covered by certificate of occupancy Nos. B0/1621 and NE/1367 which were mortgaged to the respondent. Having done so, it does not lie in their mouth to turn round to impugn the validity of exhibit E on the ground that the consents for the transfer of the properties in question were irregular. (Italics mine)

It is my view that from the available evidence on record the respondent was entitled to the first relief granted on the counter-claim.”

The above statement was made when the Court of Appeal was considering issues No.4 which I reproduce in full as follows:

“Whether the respondent had succeeded in proving its counter-claim, the appellants having failed to file a defence in respect of paragraph 1 of the counter-claim.”

This clearly means that the issue of the validity of the deed of legal mortgage was not the issue under consideration. Indeed the appellants did not even file any defence or reason why the declaration of the subsistence of the deed of legal mortgage should not be granted as claimed under paragraph 1 of the counter-claim. In the further amended statement of claim and reply to the counter-claim paragraphs 6 and 7 thereof, the appellants pleaded thus:

“6. The second plaintiff avers that there was never a time his property covered by certificate of occupancy No. B0/1621 was mortgaged to the defendant as security for any obliged loan, since the 2nd plaintiff never took any money from the defendant.

7. The second plaintiff avers that at all material time to this case, he was a minor and will found on his birth certificate at the trial of this case in proof of his age.

(a) That there was no valid mortgage deed between the parties to this case on the ground that the

2nd plaintiff could not validly enter into such agreement coupled with memorandum and article of association of the 3rd plaintiff a copy of which was given to the defendant at all times material to this case’.”

The learned trial Judge in his judgment and when considering the claims of the appellants as pleaded specifically came to this conclusion:

“The burden of proof is on the plaintiffs to show that they are entitled to the declarations sought. Having considered the totality of the evidence adduced, I am of the humble view that the plaintiffs have failed to establish their claims on the balance of probabilities.

I will accordingly dismiss the plaintiff’s claims.”

There was no appeal to the Court of Appeal challenging the dismissal of the appellants’ claim on the validity of the deed of the legal mortgage on the grounds that the 2nd appellant was a minor. The issue was decided by the trial Judge who ruled against the appellants and dismissed their claims. The observation made by the Court of Appeal could not under the circumstances be a competent issue for this court to consider.

Accordingly all the arguments of counsel for the appellants go to no competent issue, though if the issue be competent, it might be a valid point. In any event, the law is well settled, that an appeal to the Supreme Court must relate to the decision of he Court of Appeal and not that of the High Court. The Supreme Court has no jurisdiction to hear appeals from the decision of the High Court. Oduntan v. Akibu (2000) 13 NWLR (Pt. 685) 446. The case of the appellants as argued in the Court of Appeal must be consistent with the case on appeal to the Supreme Court. The Supreme Court will not allow a party to put up a different case from the case it had put up at the Court of Appeal without leave. The issue of the validity of the deed of legal mortgage as argued in the appellants’ brief is a fresh issue for which it was necessary to obtain leave of this court to raise it. No leave was obtained and as such the issue is not competent.

I accordingly rule the first issue so formulated by the appellant’s incompetent and it is rejected by me. Consequently, the first is struck out.

Issue No.2

This is concerned with whether the learned Justices of the Court of Appeal were right in law to have granted the first relief claimed by the respondent in its counter-claim. It is firstly submitted that the Justices of the court below held that the learned trial Judge was wrong to have held that the respondent was entitled to the relief number one merely on the ground that the appellants did not join issues with the respondent, the claim being declaratory. Since declaratory judgment is not granted either on default of defence or indeed on admission, there must be evidence that the party seeking the declaration is entitled to it. Learned counsel referred to Bello v. Eweka (1981) 1 SC 101; Ogbonna v. A-G., Imo State (1992) 1 NWLR (Pt. 220) 647 at 698. It is argued further that the lower court was in error to have found the evidence entitling the respondent to the claim of declaration as claimed by it. It is submitted that the deed of legal mortgage was invalid because the mortgage contract was fraught with so many irregularities and the issue of non-conformity with sections 22 and 26 of the Land Use Act. Learned Counsel referred to Savannah Bank v.Ajilo (1987) 2 NWLR (Pt. 57) 421, (1989) All NLR 26.

Here again, it is manifestly clear that the appellants in the court below merely argued, whether the learned trial Judge was right to have found for the respondent in its claim of declaration, only on the default of defence to the counter-claim. There was no argument or suggestion that the deed of legal mortgage was invalid. Issue No. 4 in the court below based on additional ground of appeal number one see page 82 of the record reads:-

“Whether the respondent succeeded in proving its counter-claim. The appellants having failed to file a defence in respect of paragraph 1 of the counter-claim.”

The relevant ground of appeal also reads:-

1. The learned trial Judge erred in law when it entered judgment against the appellants in respect of the respondent’s counter-claim claim when same had not been proved and this error had occasioned a miscarriage of justice.

Particulars of error

(a) It is trite law that pleadings is not evidence and that facts contained therein must be proved by

evidence.

(b) The respondent had not discharged the onus 1 to prove on him as required by law in a declaratory judgment.

(c) Paragraph 9 of the respondent’s counter-claim needed to be strictly proved by evidence and this was not done.

(d) Going by paragraphs 2 – 16 of the respondent’s further amended statement of defence as adopted by the respondent in its counter-claim did not establish that interest as at 28/17/1993 to 1st January, 1994 was 30%.

(e) Similarly no evidence was led to show that interest as regulated by the Central Bank and Commercial Bank is 21% in the absence of an express agreement.

(f) The rate of interest was specified in exhibit J3 which was heavily relied by the learned trial Judge as the basis for establishing the liability or the debt owed.”

Thus the main contention of the appellants in the court below was limited to the fact whether the respondent proved that it was entitled to the declaration it had sought that there was a subsisting legal mortgage. It was also their contention whether the learned trial Judge was right to have granted the declaration sought merely on default of a defence to the counter-claim. The Court of Appeal agreed with the appellants, the law correctly in my view, is that a declaratory relief cannot be granted merely on default of defence or even on admission. The other issues raised was to do with interest. There were no arguments or complaints raised on the validity of the deed of the legal mortgage. The issue of the legality or validity of the mortgage has no connection whatever with the complaint under the ground of appeal or the issue raised. Indeed the appellant did not discuss the validity of he deed of legal mortgage in its argument in the Court of Appeal. The learned Justice of the Court of Appeal as shown while considering the first issue looked at the pieces of evidence adduced and came to the conclusion that the respondent had proved its entitlement to the decree of declaration as prayed by it. The complaint concerning the validity of the deed of legal mortgage on the ground of the incapacity of the 2nd appellant or in breach of the provisions of the Land Use Act are in my view incompetent and all the arguments in that wise are discountenanced by me.

The Court of Appeal was right to have held that the trial Judge was in error to have granted the respondent’s first relief on the counter-claim merely because of the default of defence by the appellants, but the court correctly relied on the other documentary evidence on record to find that the respondent had proved the counter-claim. I accordingly find no merit in the second issue.

Issue No.3

Issue No.3 is whether the learned Justices of the Court of Appeal were right in law to hold that the appellants were indebted to the respondents. It is submitted for the appellants, that the legal conclusion arrived by the courts below that the appellants were indebted to the respondent was erroneous and at variance with the pleadings and the evidence proffered at the trial. By their pleadings, the appellants claimed to have paid in full the debt claimed by the respondent. It is submitted that the Court of Appeal was wrong to have stated that there was no “dispute that they were indebted to the respondent.” When by their pleadings and the evidence led by them the appellants clearly denied being indebted to the respondent. It is also submitted that by exhibit B and as testified by DW1, the debit balance shown in the account of the appellant No. 400127, was “00”.Thus showing there was no debit balance. The appellants also denied that they had reached any agreement with the respondent to transfer the debit balance or their current account to a loan account. The appellant denied the existence of any loan account and claimed to have paid any debit balance on the current account. It is further submitted that both the court below failed to consider the pleadings and the evidence led by the appellants when they arrived at the conclusion that the appellants were owing on the loan account. Learned counsel referred to and relied on the cases of Khali v. Odumade (2000) NSCC 127 at 128.

It is submitted further that though the finding of the indebtedness of the appellants on the loan account is a concurrent finding of facts, this is an appropriate situation that on a further appeal, the appellate court should disturb the finding as the finding was perverse and had occasioned a miscarriage of justice. Learned counsel referred to the cases of Bibhabati v. Ramendra 51 CWN 98 or (1947) pc 19; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116.

The learned counsel for the respondent on the other hand argued that the indebtedness of the appellants to the respondent was a finding of fact by the trial court after it had evaluated and appraised all the evidence led by both sides. The finding was confirmed also by the Court of Appeal after examining all the evidence adduced. The Court of Appeal came to the conclusion, that the appellants led no evidence by way of “tellers or any other document” to show payment of the debt. The learned counsel further argued that the law is settled, that when ever a debtor acknowledges a debt such as the appellant in this case (exhibit J) the burden of proof of payment is upon the debtor. Learned counsel referred to the cases of Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 at 308; Nigeria Maritime Services Ltd. v. Alhaji Bello Afolabi (1979) 2 SC 79 at 84; Onyeama v. Amah (1988) 1 NWLR (Pt. 73) 772. It is finally submitted that there is no substantial error to enable this court disturb the concurrent finding of facts.

Now, there is doubt that the Court of Appeal per Edozie, JCA (as he then was) stated” … It does not appear to me that they dispute the fact … they were indebted to the respondents … ” But to understand the con in which the statement was made it shall be necessary to read further. The learned justice stated:-

“Reading through the entire paragraphs of the appellants’ further amended statement of claim it does not appear to me that they dispute the fact that at some time they were indebted to the respondent. The gravamen of their case was that the respondent charged high interest rate on the loan account. In paragraph 8 and 9 of their further amended statement of claim it was averred as follows:

8. The appellants aver that inspite of the agreement that interest chargeable on the alleged outstanding sum against the first plaintiff would be 13% per annum, defendant went ahead without any notice to plaintiffs to charge over and above agreed rate of interest per annum.
9. The plaintiffs aver that as a result of the exorbitant rate of interest charged by the defendant contrary to the agreed one and without notice to the plaintiffs the defendant by their singular act raised the alleged outstanding sum against first plaintiffs allegedly high interest rate which plaintiffs deny and reject.’

“It is plain from the above paragraphs that what the appellants are quarrelling about is the high interest rate charged on the loan account. And in paragraph 10 of their claim they pleaded:-

10. The plaintiffs with serious efforts paid a total sum of N1,189,963.26 to the defendant while the defendant is illegally still claiming outstanding sum of N1,858,622.15′

“There is no evidence by way of bank- tellers or any other document to support the payment.

By a letter dated 29/3/94 addressed to the respondent by the first appellant (exhibit “J”) the appellants acknowledged a debt of N573,999.52 on the loan account and pleaded for more time to repay it …”

So, it cannot be correct as asserted by the appellants’ counsel that the lower court was wrong to have held that the appellants never denied the existence of the loan account by their pleadings and the evidence. I have myself read very carefully the pleadings of the appellants and the evidence led particularly the documentary exhibits, I agree with the findings of both the trial court and the Court of Appeal, that the appellants have not shown how they paid the loan account to which they admitted owing under exhibit J. The learned trial Judge accepted the evidence of DW1 to the effect that the zero balance showed in exhibit B indicated that the overdraft account was closed and the debit balance transferred to the loan account in the sum ofN487,375.52k. Thus the appellants were no longer owing on the current account but on the loan account. The question of the indebtedness of the appellants to the respondent on the loan account as mentioned above, is a concurrent finding of fact by the two lower courts. As mentioned also, I have myself looked at the pleadings and the evidence and the finding by the two courts cannot be faulted. I accordingly also resolve the said issue against the appellants.

Issue No.4

The complaint under issue No.4 is whether the court below was right in law to have held that the trial court had properly evaluated the evidence proffered in the case. It is submitted that the learned trial Judge was wrong to have stated in his judgment at page 68 of the printed record that the appellant “by paragraph 3 of the further amended statement of claim” were not disputing the fact that on 2/11/83 the 3rd appellant was indebted to the respondent.

It is submitted that the statement was at variance with what the appellant pleaded in the said paragraph 3. It is further submitted that the learned trial Judge held in his judgment, that the appellants, have failed to prove that the agreed interest was 13% per annum or show that the respondent resiled from any agreement and charged exorbitant interest as pleaded under paragraphs 8 and 9 of the claim. It is submitted that the learned trial Judge was wrong in that the appellants and their witness gave the evidence in proof of their claims as pleaded by them. It is also submitted that the evidence of DW 1 was hearsay and offended Section 77 of the Evidence Act. It is finally argued that inspite of the wrong evaluation of the evidence by the trial Judge, the Court of Appeal failed to properly consider the case on the record.

It is submitted by the respondent on the other hand, that the Supreme Court has no jurisdiction to entertain the appeal from the decision of the trial court. The jurisdiction of the Supreme Court is only limited to the decision of the Court of Appeal. Vide Adio v. State (1986) 2 NWLR (Pt. 24) 581. It is again argued, that the issue of the evidence of DW1 been hearsay and the inadmissibility of exhibits Band J3 are being introduced for the first time on appeal in this court and no leave was obtained to raise the issues as fresh issues and they should therefore be discountenanced. See Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 271 at 284.

Now, on the valuation of evidence by a trial court, the law is settled. See Mogaji v. Odofin (1978) 4 SC 91 and Solomon v. Mogaji (1982) 11 SC 1. It is that before a court which evidence is adduced by the parties in a civil case comes to a decision as to which evidence it believes or accepts and which evidence it rejects, it should first of all put the totality of the acceptable testimony adduced by both parties on an imaginary scale; it would put the legal evidence adduced by the plaintiff on one side and that of the defendant on the other side and weigh them together. It will then see which is heavier, not by the number of the witnesses called by each party but by the quality or probative value of the testimony of those witnesses. See also Sha Jnr v. Kwan (2000) 8 NWLR (Pt. 670) 685. It is the pre-eminent duty of a trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate court which neither heard the witnesses nor saw them to observe their demeanors in the witness box. See Ajakaiye v. Adedeji (1990) 7 NWLR (Pt. 161) 192. I have carefully read the judgment of the trial court and I am of the view that the learned trial Judge had properly appraised, analysed and evaluated all the evidence led before him before he came to the conclusion, that the appellants were owing the respondent and that the appellants had failed to prove the rate of interest agreed nor that they had repaid the loan. Most of the evidence before the trial court was documentary and at least in exhibit J, the appellants admitted owing the respondents and correctly, as found by the learned trial Judge and confirmed by the Court of Appeal, the appellants did not show that they had repaid the loan. As mentioned above, these are findings of concurrent and consistent facts made by the lower courts. I am not convinced that the findings are perverse or not made as a result of proper evaluation and appraisal of the evidence led and accepted. I also find no merit in this issue and I resolve it against the appellants..

All the issues having been resolved against the appellants, this appeal fails and I accordingly dismiss it. The respondent is entitled to costs assessed at N10,000.00.

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SC.89/2000