Trade Bank Plc. V. Yisi Nigeria Limited (2005)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, J.C.A.

This is an appeal against the decision of the Kwara State High Court of Justice, sitting at Ilorin, in suit No. KWS/254/94, delivered by Hon. Justice Gbadeyan on 23/12/2003, in which judgment was given in favour of the plaintiff (hereinafter referred to as “the respondent”).

Dissatisfied with the whole decision, the defendant (hereinafter referred to as “the appellant”), filed a notice of appeal consisting of 13 grounds.

The facts of the case as can be gathered from the record are that the appellant is a commercial bank, while the respondent was/is its customer. The appellant has branches at Oja-Oba, Ilorin, Dacemo Street, Lagos, and a corporate banking department also in Lagos.

The respondent had her accounts with the appellant at the branches stated above. The respondent applied for banking facilities which were granted on terms. She applied through the appellant for loan under the Central Bank of Nigeria (hereinafter) referred to as “The CBN”) for small and medium enterprises loan scheme (hereinafter referred to as SME Loan”) The loan was only obtainable through a commercial bank but not directly from the C.B.N. to an entrepreneur.

The appellant processed the application on behalf of the respondent and the loan was secured in December, 1991. However, before the CBN approval was given, the respondent needed some foreign exchange to import raw materials. The respondent approached the appellant for a loan and same was granted to it. The appellant sourced the money for the respondent by direct bidding and the respondent utilized it.

The SME loan was released by the C.B.N. and the account of the respondent was credited with the sum released after offsetting part of the loans released to the respondent. When all disbursement was made from the SME, a balance of $82,560 (U.S.) dollars was left in the account of plaintiff/respondent unutilized. The said sum is the crux of this action. The appellant according to them repurchased the unutilized amount and sold same to Marble Finance Company Limited in order to beat the CBN directives that unutilized foreign exchange must be returned to the Central Bank if not utilize within 21 days after disbursement. The proceeds of the repurchased foreign exchange was credited to the account of the respondent with the appellant.

The plaintiff/respondent when it became aware of the foreign exchange standing to their credit, approached the appellant for the release of the said sum. The appellant refused to oblige contending that the unutilized foreign exchange was sold to a third party (Marble Finance Company Limited) and the naira equivalent was credited to their account with the appellant.

The plaintiff/respondent claimed not to have received the proceeds of the repurchased foreign exchange and in any event they contended that they did not authorize the appellant to sell the said foreign exchange standing to their credit to a third party. In fact, they (respondents) claimed, at the time, the foreign exchange was sold, they were badly in need of it to purchase raw materials for their factory.

The respondent through their solicitors wrote a petition to the CBN on the matter. The CBN investigated the matter being the regulatory monetary authority in Nigeria. At the end of the investigation, the CBN directed the appellant to re-credit respondent’s account with the sum of $82,560.00 (U.S) dollars at the applicable rate.

In compliance with the said directive, the appellant reversed the earlier entry and re-credited the respondents for the whole amount, the naira value to the tune of N1,515,150.96. Not satisfied with the CBN’s intervention, the respondent filed an action at the State High Court which is the subject matter of this appeal, claiming:-

1. The sum of $82,560.00 standing to the credit of the plaintiff as at the 1st of May, 1992, in his account with the defendant.
2. Interest on the said plaintiff’s funds at 21% per annum from 1st May, 1992, up to the date of judgment and thereafter at 10% on the judgment sum until the judgment debt is fully liquidated.
3. A declaration that the plaintiff having paid a total sum of N5,200,000.00 as at 30th January, 1995, and having substantial credit due to them as claimed in paragraphs 1 and 2 above could not and is not owing the defendant a staggering debt of N9,072,227 as demanded in the defendant’s letter of 1st November, 1996, or owing any sum whatsoever.
4. An order of injunction restraining the defendant by themselves, their servants, agents and/or privies from further demanding payment of and/or taking any further steps towards the recovery of the alleged indebtedness of the plaintiff and/or its principal officers until the final determination of this suit.
5. An order on the defendant to render a correct proper statement of all the accounts of the plaintiff with defendant.

At the end of trial, the lower court granted all the claims of the plaintiff/respondent, save the one for injunction pending the determination of the case hence this appeal.

The appellant filed thirteen grounds of appeal and the said grounds of appeal shorn of their particulars are as follows:-

1. Error in law

The trial court erred in law, in awarding to the plaintiff/respondent the sum of U.S. $82,560.00, when the evidence from the two sides clearly show that the said sum had been credited to the account of the plaintiff/respondent by the appellant.

2. The trial court erred in law, when it held in relation to letters of credit and CBN regulation pleaded by the appellant but not tendered at the trial as follows:

“The irresistible presumption is that no such letter and regulation exist and if ever it existed, the tendering of it would have produced unfavourable (adverse) results to the defendants. See S. 149(d) of the Evidence Act. Alan Oparaji & Ors. v. Nwosu Ohanu & Ors. (1999) 6 SC. (Pt. 1) 41, (1999) 9 NWLR (Pt. 618) 290”

and this has occasioned a miscarriage of justice.

3. Misdirection of fact

The learned trial Court misdirected itself on fact when it held as follows:- “The conclusion on issue 3 is that the unutilized $82,560.00 dollars was not repurchased by the defendant or Marble Finance Ltd. with the knowledge or consent of the plaintiff whose chairman (PW2) is apparently illiterate. “There is nothing to show that the cheques (exhibits D10 and 10A) have anything to do with the unutilized foreign exchange viz $82,560.00 dollars.” (Italics ours for emphasis).

4. Misdirection on fact:

The learned trial Court misdirected itself when it held as follows:-

“In conclusion, I find as a fact that it was the agents of the defendant and, by implication, the defendant who sold the plaintiff’s $82,560.00 dollars to the Marble Finance Ltd. without the plaintiff’s consent and as testified to by the DW1 quoted above without the Marble Finance Ltd. making any payment to the plaintiff’ and this has occasioned a miscarriage of justice”.

5. Misdirection on fact:

The learned trial court misdirected itself and came to a perverse conclusion when it held as follows:-

“On the issue of whether or not, the plaintiff is entitled to its unutilized $82,560.00 SME loan, the DW1’s admission is that no payment was made to the plaintiff in respect of same. That settles the issue as it is a clear admission against interest” and this has occasioned a grave miscarriage of justice.

6. Error in law:

The learned trial court erred in law, when it held on whether or not there was any CBN regulation on resale/ repurchase of unutilized approved foreign currency within 21 days, as follows:-

“The issue could only be resolved in favour of the defendant, if relevant documents from the CBN are tendered, but no such document is tendered in this case and it is safe to conclude that there is no such authorization from the CBN to the defendant that it could repurchase any unutilized fund under the SME loan after 21 days and resell same” and this occasioned a fundamental miscarriage of justice.

7. The learned trial court erred in law, when it held on whether or not the intervention of the CBN was final, as follows:

“Both the C.B.N. which wrote exhibit D11 and the defendant cannot deny the fact that the N84.00 which they have used was then a fair rate (vide also exhibit 22)”

8. The learned trial court erred in law, when it held “The plaintiff is entitled to interest on the $82,560.00 dollars at the rate of 21% per annum from May, 1992, to date and from today 10% interest per annum until the judgment is finally executed” and this has occasioned a miscarriage of justice.
9. Error in law:

The learned trial court erred in law, when it held thus: “In the circumstances, this court is unable to declare that the plaintiff is indebted to the defendant in any amount whatsoever there is no counter-claim before it.

10. The learned trial court erred in law, in granting conflicting and inconsistent reliefs to wit: Order for correct and proper statement of account to be rendered; a declaration that the plaintiff/respondent was no longer indebted to the defendant/appellant as well as an order that the plaintiff/respondent be paid U.S $82,560.00 with interest, and this has occasioned a grave miscarriage of justice.
11. The trial court erred in law, in making an order that correct and proper statement of the plaintiff/respondent’s accounts with the appellant be rendered when exhibit D4 (the statement of account tendered) has not been declared improper or null and void, and so remains the correct and appropriate statement of account.
12. The learned trial court erred in law, in granting a declaration that the plaintiff/respondent was no longer owing the appellant any sum whatsoever (as per relief No.3 claimed) and this has occasioned a fundamental miscarriage of justice.
13. Error in law:

The trial court en-ed in law, when it awarded cost of N46,000.00 against the defendant/appellant without any legal basis.”

In accordance with the rules of our court, both parties filed and exchanged their respective briefs of argument. The appellant formulated eleven issues for determination as follows:-

“1. Whether issues 4 as formulated for the respondent at page 4 of her brief arose from the grounds of appeal as to be competent and whether the argument canvassed thereon at pages 13-16 are competent.

2. Whether the purported respondent’s notice to contend varies D10 and D10A that it was the agents of the appellant and by implication the appellant who sold the same foreign currency to Marble Finance Ltd. without making any payment to the respondent. (Italics for emphasis) are not only inconsistent but also perverse.
3. Whether the trial court’s invocation of section 149(d) of the Evidence Act against the appellant for not tendering letters of credit and CBN regulation (both pleaded) is right in law.
4. Whether in view of exhibit D11 tendered by the defence, the finding of the trial court that no relevant document was tendered on the CBN regulation and on which the trial court rested its further finding that there was no such regulation can stand.
5. Whether the court or any individual could impose any rates(s) of exchange of foreign currency in Nigeria other than as fixed by the CBN or set aside (expressly or by implication) the rate(s) as dictated by the CBN.
6. Assuming but not conceding (emphasis supplied) that, the trial court could properly award U.S $82,560.00 to the respondent, whether the award of interest on same at the rate of 21% per annum from 1st May, 1992, to the date of judgment is proper in law.
7. Whether the trial court could competently pronounce on the quantum of indebtedness of the respondent to the appellant when there was no counter-claim by the appellant.
8. Whether the trial court could, in the face of the evidence on record grant the respondent’s reliefs number 1, 3 and 5, which are substaintailly inconsistent and confliction all together.
9. Whether the trial court was right in making an order that correct and proper statement of the respondent’s account with the appellant be rendered when exhibit D4 (statement of account) tendered has not in any manner been declared improper or null and void.
10. Whether the trial court was right in the sweeping declaration it made that the respondent was no longer indebted to the appellant in any sum whatsoever.
11. Whether the award of N45,000.00 cost against the appellant is proper and justified in law.

The respondent on the other hand formulated four issues for determination and they are:-

1. Whether the appellant, a bank can validly sell off the respondent’s unutilized funds of $82,560.00 without the knowledge and consent of the respondent.
2. Whether the appellant or anyone else, actually repurchased the disputed funds from the respondent and paid the respondent for same.
3. Whether the learned trial Judge was right in holding in his Lordship’s judgment that the same interest rate charged on the disputed funds by the appellant in granting the loan should be applicable to the refund due to the respondent.
4. Whether the learned trial Judge was correct, when he held that the appellant’s statement of account which concealed the respondents account for the initial 2 years of the accounting period among other vital contradictions could not be relied on and acted upon by the court.

The appellants in their reply brief adopted the statement of facts as contained in their main brief and formulated two issues for reply to wit:

1. Whether issues 4 as formulated for the respondent at page 4 of her brief arose from the grounds of appeal as to be competent and whether the argument canvassed thereon at pages 13 – 16 are competent.
2. Whether the purported respondent’s notice to contend that decision of the court below be varied is competent.”

At the hearing of the appeal on 26/10/2004 both parties, through their respective counsel, adopted their briefs of argument.

In arguing issue No.1, learned Counsel for the appellant, Mr. S. Duro Adeyele, Esq., submitted that the evidence of DW1 at pages 88 and 89 of the record to the effect that the account of the respondent was credited at the ruling rate could not be faulted. Learned Counsel further submitted that the witness was not cross-examined at all on this vital evidence. He submitted that this piece of evidence should be deemed proved he relied on the case of Obembe v. Wemabod Estate Ltd. (1977) 5 SC 115 at p. 140 to buttress his submission on this point.

Learned Counsel submitted that the admissions of PW1 and 2 that the appellant complied with the CBN directive that the respondent be given credit for the sum in naira at the ruling exchange rate which PW1 said was about N18.00 to US $1.00 is clear admission of the appellant’s position that it had given the respondent credit for the sum in question. The respondent is bound by this admission he further submitted relying on Abamnu Anigbogu v. Uchejigbo (2002) 10 NWLR (Pt. 776) 472 at p. 487.

The above being the case, learned Counsel submitted that the lower court was in grave error to have over looked this fact of payment, which he further submitted goes to the root of the whole case. Learned Counsel further submitted that the trial court quoted the DW1 out of con in its judgment, particularly at page 129 of the record where his Lordship stated this on the issue whether or not the plaintiff is entitled to its unutilized $82,560 SME loan. The DW1’s admission is that no payment was made to the plaintiff in respect of the same. Learned Counsel contended that there was no such admission on record as such the conclusion reached by the trial court is nothing but perverse and he urged us to so hold relying on the case of lkono L.G. v. De Beacon Fin. Sec. Ltd. (2002) 4 NWLR (Pt. 756) p. 128 at pages 142 – 143.

Learned Counsel submitted that DW1 was consistent in his evidence to the effect that the respondent was duly credited with the sum of N1,515.150.96, being the naira value of the unutilized $82,560.00. He urged the court to hold from the record that it is vividly clear that the appellant paid the respondent the unutilized U.S $82,560.00. Thus, the court below was in grave error to have held otherwise.

Learned Counsel submitted that there is no justification whatsoever for the respondent’s claim for the same money. It amounts to claiming the same money twice. He urged us to answer issue number 1 in the negative and to allow grounds 1, 4 and 5 of the grounds of appeal.

On issue number two, after re-appraising the facts of the case for the parties, learned Counsel contended that it is curious that the court below held that there was nothing to show that the cheques (exhibits D10 and D10A) (sic) have nothing to do with the unutilized foreign exchange, i.e. $82,560.00. Learned Counsel submitted that the finding by the court below is not only perverse, but also a demonstration that the court was either out of tune with the evidence before it or did not go through or evaluate the evidence before reaching its conclusions. There is clear evidence and it is common ground that Marble Finance Ltd.’s connection with the parties’ relationship was as regards the unutilized foreign exchange and no more.

Learned Counsel went on to contend that more curious is the further finding of the court below that it was the agents of the appellant and by implication, the appellant who sold the self same foreign exchange to Marble Finance Ltd. The only evidence of purchase of the foreign exchange by Marble Finance Ltd. are exhibits 10 and l0A (its cheques). Thus, learned Counsel, contended is clearly diametrically opposed to all earlier hoyden of the court that exhibits 10 and 10A had nothing to do with the unutilized foreign exchange.

Learned Counsel urged us to hold that the lower court was totally out of tune with the facts of the case before it, hence, its perverse decision. It was on the basis of this perverse decision that the court below ordered the appellant to pay the respondent the sum of $82,560.00 on the ground that no payment was made for the unutilized foreign exchange. Learned Counsel submitted that this is a grave miscarriage of justice.

Learned counsel submitted that it is clear on the record that the appellant earlier paid the respondent at a wrong exchange rate and on the intervention of the CBN, amends were made and paid at the appropriate ruling exchange rate.

Learned Counsel then urged us to reverse the decision of the court below to the effect that exhibits 10 and 10A had nothing to do with the unutilized foreign exchange and that no payment was made for it by Marble Finance Ltd. or the appellant. Learned Counsel urged us to hold that the findings and conclusion of the court are perverse and urged us further to allow grounds 3 and 4 of the grounds of appeal.

On ground No.3, i.e. whether the trial court’s invocation of section 149(d) of the Evidence Act against the appellant for not tendering their letters of credit and CBN regulation (both pleaded) is right in law, learned Counsel contended that though the documents were pleaded at the trial, the appellant felt that it did not have the need to tender them since it could establish its defence without them. Thus, pleadings relating to those documents were abandoned.

It is curious, the learned Counsel contended for the trial court to place heavy whether on the decision of the appellant and held that those documents were withheld because if tendered, they would be against the appellant, invoking section 149(d) of the Evidence Act. Learned Counsel submitted that the law is now trite that parties are bound by their pleadings. The meaning of this learned Counsel further submitted is that parties cannot go outside their pleadings. It is however, not the law that parties must lead evidence on all pleaded facts relying on the cases of N.I.D.B. Ltd. v. Olalomi Ind. Ltd. (2002) 5 NWLR (Pt.761) 532 at p.550, paras. D-G; Olorunfemi v. Asho

(1999) 1 NWLR (Pt.585) 1, also reported in (2000) FWLR (Pt. 20) 654, particularly at 667.

Learned Counsel urged us to hold that the court below misconceived the purport of section 149(d) of the Evidence Act and erroneously invoked same in the circumstance. He urged the court to resolve issue No.3 in the negative and allow ground 2 of the grounds of appeal.

On issue No.4, learned Counsel contended that, they pleaded in paragraph 14 of the statement of defence that evidence shall be led on the CBN regulation at the trial to the effect that foreign exchange sourced by the CBN must be utilized within 21 days of disbursement or repurchased and sold to another customer. Learned Counsel submitted that at the trial DWI testified copiously on this CBN regulation. Equally DW2 testified on the same regulation and tendered exhibit D11. Learned Counsel referred to paragraph 14 quoted above and contended that the pleading is that evidence shall be led on the regulation at the trial. Against this backdrop, DW1 and DW2 testified orally on the regulation and exhibit D11 was tendered still on the regulation and on the CBN intervention generally.

Learned Counsel for the appellant contended all that the trial court had to say on this germane point was just a paragraph at page 127 of the record (3rd paragraph thereof). Learned Counsel submitted that the conclusion of the court below is perverse. No reference was made at all to the evidence on record.

More importantly, learned Counsel further canvassed that nothing was done to challenge exhibit D11 under cross-examination. As a matter of fact, he went on, the cross-examination of both DW1 and DW2 in this regard, centre on whether or not, the respondent knew Marble Finance Ltd. or authorized sale of the unutilized foreign to that company. That there was that regulation as contained in Exhibit D11 and read out by DW2 was not made an issue under cross examination.

That uncontroverted evidence (oral and documentary) on a particular point in issue at a trial under cross examination should be deemed as proved has become elementary law relying on ANIGBOGU VS. UCHE JIGBO (2002) 10 NWLR (PT.776) 472 AT P. 486-487; OBEMBE VS. WEMABOD ESTATE LTD (supra). Learned Counsel submitted that the Court below failed to be guided by this principle of Law in treating the evidence relating to the CBN regulation in Issue.

Learned Counsel urged the Court to hold that the Appellant sufficiently proved the CBN regulation relied in purchasing and selling the unutilized foreign exchange in issue. He urged us to reverse the decision of the Court below on this point, answer issue No.4 in the negative and allow ground 6 of the grounds of appeal.

In arguing issue No.5, Learned Counsel submitted that it is common ground that the official rate of exchange of the Naira to U.S, Dollars as at the material in 1992 was as contained in Exhibit 5 at the 2nd page thereof, the rate was about N18.55 to US Dollar 1.00. However PW1 stated that while computing what he believed to be the position of the Respondent’s accounts with the Appellant, particularly the unutilized US $82.560.00, the exchange rate he adopted was N84,00 to US Dollar 1.00. this rate the witness considered to be fair. Interestingly, the Learned Counsel went on, he (PW1) had earlier agreed that N18.55 to US Dollar 1.00 was the authentic rate issued by the Central Bank of Nigeria and no one could dictate another rate to the contrary.

Learned Counsel contended that the respondent cannot unilaterally and arbitrarily set a rate of exchange it considered fair and adopt same to regulate its transaction with the appellant. Any such arbitrary rate of exchange is not only illegal and void but also incompetent. Equally, no court of law can competently under any guise give judicial approval to such an arbitrary rate he further contended.

Learned Counsel submitted that the alleged fair rate of exchange adopted by PW1 (i.e. N84.00 to U.S. $1.00) is illegal void and incompetent. He equally submitted that the court below was in grave error to have upheld the so-called fair rate. After all, the same PW1 in his testimony stated that the rate at which the CBN released the loan to the respondent was N18.00 to a dollar. Where then lies any justification for the so called fair rate as upheld by the court below.

Learned Counsel submitted that what the court below did in holding that the N84.00 to a dollar rate of exchange was fair and proper was granting judicial stamp to an attempt at setting aside the rate of exchange as dictated by the CBN. This has been held to be outside the purview of the duties of courts relying on Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 at pp. 252-253.

Learned Counsel submitted that the court below ought to have prepared and as a matter of law apply the official authentic rate. He therefore, urged the court to reverse the findings of the court below on the applicable rate of exchange of naira to U.S. dollars.

Learned Counsel further submitted that apart from being an attempt to set aside the rate of exchange as fixed by the CBN, when there was no such claim before the court, there was no justification whatsoever on the facts or evidence on record. For instance, exhibit D11 was written on 30/11/96. That apart, CBN was not a party before the court. CBN was not heard. The statement on it by the court was uncalled for. Learned Counsel further submitted that the implied application of the doctrine of estoppels against the respondent and the CBN is, with due respect improper and even illegal.

As to whether the intervention of the CBN was final, learned Counsel submitted that while it is true that the CBN intervention was not final, as parties could submit any issue to court for redress, the CBN’s decision as to the official exchange rate duly made in exercise of its statutory power was final. The rate can only be set aside if properly challenged. That was not the position in this case. No such relief is claimed.

On the doctrine of lis pendes where the court observed as follows:-

“The CBN and the defendant could not have rightly, let alone finally acted when this action was already pending”

Learned Counsel submitted that this observation by the court below is perverse. All correspondence between the parties and the CBN, all directives by the CBN and all reaction by the respondent took place before the suit was filed. The last correspondence from the CBN in which it directed the appellant to credit the respondent at appropriate rate is exhibit D11 dated 30/10/96. The action was filed on 21/11/96. This clearly shows that the intervention of the CBN was before the action was filed and not after as observed by the court below.

Learned Counsel finally urged the court to hold that the court below was in error to have preferred a so-called fair rate of exchange to the actual official rate as fixed by the CBN. He urged the court to answer issue No.5 in the negative and allow ground 7 of the grounds of appeal.

In arguing issue No.6, learned Counsel submittted that where interest is claimed as of right, fact relating to it must be expressly pleaded and evidence must be given in prove of entitlement before the court, if satisfied with the evidence can award same relying on the case of Texaco Overseas (Nig.) Ltd. v. Pedmar (Nig.) Ltd. (2002) 13 NWLR (Pt. 785) p. 526-548.

Learned Counsel urged the court to hold that the award of interest at 21% per annum from 1/5/92 to date of judgment was arbitrary, capricious and wrong in law and as such cannot stand. He urged us to resolve issue No.6 in the negative and allow grounds of the grounds of appeal.

In arguing issue No.7, learned Counsel submitted that in the circumstance of this matter, the burden of proof of all its claims was squarely on the respondent to prove of quantum of the respondent’s indebtedness to the appellant was not made an issue before the court of trial and indeed the appellant did not embark on that. However in his judgment, the learned trial Judge suo motu made it issue No. 8. Learned Counsel submitted that a trial court is bound to limit itself to the issues placed before it and not go out of the same relying on the case of Olale v. Ekwelendu (1989) 4 NWLR (Pt.115) 326 at 360-362.

Learned Counsel further submitted that quantum of indebtedness of the respondent to the appellant was not submitted to the court below for adjudication as such was not part of the business of the court below at the trial. The pronouncement thereon is of no legal effect and must as a matter of law be set aside. He cited the case of A.-G., Federation v. Ajayi (2000) 12 NWLR (Pt.682) 509 at p. 536, to buttress his submission on this point.

Learned Counsel urged the court to hold that the issue of quantum of the respondent’s debt to the appellant did not arise. He further urged the court to resolve issue No.7 in the negative and allow ground 9 of the grounds of appeal.

In arguing issue No.8, learned Counsel submitted that relief No.3 presupposes uncertainty as to the correct position of the respondent’s account hence the claim for such an order. Learned Counsel further submitted that it is only logical that no declaration as to whether or not the respondent owes the appellant can properly be made until relief No.5 is granted and complied with. The same position is equally applicable to relief 1. If a correct position of the account is unknown, how could it be determined that any sum is outstanding to the credit of the respondent.

Learned Counsel submitted that the court below failed in its duties to consider and evaluate the evidence before it as it was bound to do under law relying on the cases of Ogunyombo v. Ookoya (2002) 16 NWLR (Pt.793) 224; Oyedeji v. Akinyele (2002) 3 NWLR (Pt.755) 586; and Karibo v. Grend (1992) 3 NWLR (Pt.230) 426.

Learned Counsel submitted that if the court below had properly evaluated the evidence on record, he would not have fallen into the error of granting obviously irreconcilable reliefs with a stroke of the pen as he did. He further submitted that the three reliefs as claimed together are incongruous with one another and ought not to have been granted together. He referred the court to the case of Ukpah v. Udo (2002) 8 NWLR (Pt.769) 326 at p. 335. Learned Counsel urged us to resolve issue No.8 in the negative and allow ground 10 of the grounds of appeal.

In arguing issue No.9, learned Counsel contended that through DW1, exhibit D4 was tendered and demonstrated that it was/is the proper statement of the respondent’s account as consolidated. The respondent did not tender any contrary statement of account. Exhibit 25 tendered by it proved demonstrably unreliable. This is because of the irreconcilable difference in the figures in it and those in exhibit D1 prepared by the same author and on the same account. Exhibit D4 tendered as the statement of account and which ex facie emanated from the appellant was not improper or in any manner vitiated or set aside. The question posed by the learned Counsel then is what else the court below would want the appellant to prepare as correct/proper statement of account. Appellant through its witnesses had attested on oath that exhibit D4 is a proper and correct statement of the respondent’s account.

Learned Counsel submitted that without setting aside exhibit D4, an order for correct and proper statement of the respondent’s account to be rendered is not only improper but an imposition of unnecessary burden on the appellant. Exhibit D4 having not been set aside remain extant and he urged us to so hold. He also urged us to resolve issue No.9 in the negative and allow ground 11 of the grounds of appeal.

On issue No. 10, learned Counsel submitted that the respondent did not prove that it was entitled to the declaration as made by the court below. All that the court below said in its judgment on this point on the respondent’s evidence is at page 130 (2nd paragraph thereof) of the record. At the next paragraph, the court below went ahead to hold that the respondent’s evidence on it was not seriously challenged. Learned Counsel further submitted that cannot be anything but a perverse consideration of the evidence on the record. The claim of the respondent was not only seriously challenged, its witnesses under cross-examination admitted that it was still indebted to the appellant. Thus, the case of Agbonifo v. Aiwereoba (1988) NSCC (Pt.1) 237 at 248; (1988) 1 NWLR (Pt. 70) 325 cited by the court below is not opposite at all.

Learned Counsel further submitted that the conflicting figure as to the quantum of the debt of the respondent to the appellant which the court below tried to point out at p. 131 of the record would still not lend credence to the declaration made. Those conflicts would go only as to the quantum of indebtedness. This will only be relevant if there is a counter-claim for the debt outstanding. The relevant issue before the court below was whether or not there is any evidence to show that the respondent was no longer indebted to the appellant.

Learned Counsel submitted that there is no such evidence, such as to ground the declaration of the court. The declaration of the court below that the respondent was no longer indebted to the appellant is perverse and he urged us to so hold. Learned Counsel also urged us to resolve issue No. 10 in the negative, set aside the declaration of the court below and allow ground 12 of the grounds of appeal. In arguing issue No. 11, learned Counsel submitted that the guiding principles in the award of cost has been stated and restated by the court relying on the case of Layinka v. Makinde (2002) 10 NWLR (Pt. 775) 358 at 377, paras. D-G. Learned Counsel contended that the cost awarded by the court below runs foul of the guiding principles enunciated in the above case. In the first place, most of the adjournments at the court below were at the instance of the respondent. This ought to be disentitling circumstance as to costs. The only adjournment that was squarely at the appellant’s instance and which was not explained attracted a N3,000.00 cost.

Learned Counsel further submitted that the respondent did not state any out of pocket expenses. Thus, the cost awarded could not be said to have been assessed to meet any legitimate expenses, either in part or in whole. The cost awarded he went on is arbitrary and capriciously assessed and is also punitive. He urged the court to so hold. Learned Counsel urged the court to answer issue No. 11 in the negative and allow ground 13 of the grounds of appeal.

In arguing issue No.1, learned Counsel for the respondent, contended that the relationship between a banker and its customer is one of agent/principal on the one hand and debtor/creditor in another vein. The appellant is an agent of the respondent in law and by contractual relationship. He relied on the cases of Yesufu v. ACB (1981) 1 SC 74 at 92; Union Bank of Nigeria Ltd. v. Nwoye (1990) 2 NWLR (Pt.130) p. 69 at p. 77 to buttress his contention.

It is common ground between the appellant and the respondent that the latter had an unutilized funds of $82,560.00 standing to their credit as at the 1st of May, 1992. He referred to pages 19 paragraph 10; 22 paragraph 10 of the record. He also referred to the evidence of PW1 at p. 58 paragraph 2 of the record as well as exhibit 4. Having admitted so, learned Counsel went on, the appellant must justify how they disposed of the said funds validly without the knowledge and consent of the respondent. Learned Counsel referred to the evidence of DW 1 at page 94 paragraph 3 of the record wherein he (DW1) stated thus:-

“We did not have any written instructions of the plaintiff to sell to Marble Finance”

Learned Counsel then contented that no authorization was given to the appellant to dispose of the unutilized funds in any way.

It is the contention of the learned Counsel that since the appellant has not proved excess amount of foreign exchange in the account of the respondent and the letters of credit pleaded were not tendered in evidence, the only defence available to the appellant is whether a CBN regulation existed to give them protection. It then becomes crucial for the appellant to establish that they had power under the CBN regulations to repurchase and resell the unutilized foreign exchange funds property of the respondent.

Learned Counsel further contended that though the appellant pleaded and relied on a CBN regulation which they claimed gave them authority to sell the respondent’s unutilized funds after 21 working days, they did not tender the said regulation to back up their claim. He who asserts must prove his assertion. Learned counsel referred to the case of Adake v. Akun (2003) 15 NSCQR p. 47 at p.51; (2003) 14 NWLR (Pt. 840) 418 to buttress his contention on this point.

Learned Counsel submitted that the learned trial Judge was right in fact and law, when he held that by not producing the pleaded regulation, the appellant was caught by the operation of section 149(d) of the Evidence Act relying on the case of Alam Oparaji v. Ohanu (1999) 6 SC (Pt. 1) at p. 41; (1999) 9 NWLR (Pt.618) 290.

Learned Counsel further submitted that having failed to produce the CBN regulation, cannot now seek refuge under exhibit D 11. Exhibit D11 referred to the foreign exchange operating them. This demonstrates among other features that even if such a regulation exists, they change from time to time. Learned Counsel then posed this question thus:-

“Which regulation operated them and which was in applicable then?”

He went on to contend that at the end of it all it is very obvious that exhibit D11 was a mere letter directed to appellant and could not by any stretch of consideration be equated to the regulation pleaded by the appellant.

Learned Counsel then contended that the learned trial Judge was absolutely right in holding at p.125, paragraph 3 of the record that no such letters of credit and CBN regulation exist and that if they ever existed, the tendering of them would have produced adverse results to the appellant.

In arguing issue No.2, learned Counsel to the respondent contended that the respondent denied that the appellant repurchased the foreign exchange in dispute from the respondent. Since issues were joined on the claim of the appellant, the onus is on them to establish that they actually repurchased the said disputed funds. He referred to sections 135 and 136 of the Evidence Act as well as the case of Whyte v. Jack (1996) 2 NWLR (Pt.431) at p. 407.

Learned Counsel contended that there is no iota of evidence either in the pleadings or oral evidence to establish that the appellant paid any amount to the respondent. He referred to the evidence of DW1 at page 94, paragraph 2 wherein he stated that they repurchased the disputed funds and resold the said funds to a company named Marble Finance Ltd. Learned Counsel further contended that in view of this admission by the appellant’s main witness, he wondered how the appellant continue to assert that the respondent was paid by Marble Finance when there is no evidence of contract between the two. Learned Counsel contended that the same witness testified thus:-

“It is true that Marble Finance did not make any payment to the plaintiff (respondent)”.

Learned Counsel finally submitted that the learned trial Judge was absolutely right, when he held at page 129, paragraph 2 of the record that:-

“On the issue of whether or not, the plaintiff is entitled to its unutilized $82.560.00 SME loan, the DW1’s admission is that no payment was made to the plaintiff in respect of same, that settles the issue as it is clear admission against interest”.

Learned counsel urged us to hold that the decision of the learned trial Judge is the correct one in fact and at law relying on the cases of Adeyeye v. Ajiboye (1987) 7 SCNJ 1; (1987) 3 NWLR (Pt. 61) 432; Kimdey v. Gov. of Gongola State (1988) 5 SCNJ p. 28; (1988) 2 NWLR (Pt.77) 445.

On issue No.3, learned Counsel contended that the respondent claimed and pleaded at page 20, paragraph 20 of the record for an award of 21% on the disputed funds and duly established that the loan which gave rise to the suit was procured from the appellant at an interest rate of 24% per annum. That being the case, learned Counsel submitted that the learned trial Judge was right in ordering a full restoration of the unutilized funds at an interest rate of 21% as claimed by the respondent which is even lower than the rate charge by, the appellant.

Learned Counsel contended that, the appellant as the respondent’s banker had a fiduciary relationship with the respondent. This makes it a matter of right for the respondent to demand and claim interest on any restoration of funds that may become due to the respondent. It is therefore, only equitable that the appellant repays the interest they have charged on loan they never released to the respondent, but for which they had debited the accounts of the respondent relying on the case of Himma Merchant Limited v. Aliyu (1994) 7 NACR at p. 74; (1994) 5 NWLR CPt.347) 667.

Learned Counsel contended that by exhibit D.6 the appellant had been charging interest on the disputed funds as a matter of agreement between the parties. It is submitted therefore that since the appellant had already been charging the respondent an interest of 24% per annum, they cannot be heard to complain about refunding the respondent’s unutilized funds at a lower rate of 21% per annum as claimed by the respondent.

In arguing issue No.4, learned Counsel for the respondent contended that the respondent in their amended statement of defence denied owing the appellant any sums of money whatsoever. In support of their contention, PW1 gave evidence for the respondent and tendered exhibit 25. The said exhibit he went on showed that they have a net balance in their favour to the tune of N243,744.00. The evidence of this witness, according to the learned counsel remained unshaken under cross-examination hence the trial court acted on it.

The appellant in answer to evidence adduced by the respondent called DW1 and tendered exhibit D4, a statement of account prepared G by DW1 himself. Learned Counsel urged the court to hold that the said exhibit was compiled during the pendency of this matter. He submitted that the learned trial Judge was right when he invoked the provisions of section 92(1) of the Evidence Act to conclude that the witness had substantial incentive to conceal or misrepresent facts in the said statement of account relying on the case of Suberu v. Anomneze (1994) 3 NACR 45 at p. 53.

Learned Counsel submitted that exhibit D4 bears substantial marks of improvisation and applying the principle enunciated in case of Suberu v. Anomneze (supra) the exhibit is of no probative value and urged the court to so hold.

It is the contention of the learned Counsel that based on the irrefutable conclusions on the probative value of the exhibit D4, they agreed entirely with the finding as a matter of fact of the learned trial Judge at p. 131 paragraph 2 of the record that:-

“The defence is so much bedeviled by inconsistencies and terrible contradictions that no reasonable tribunal can accredit such shifty evidence.”

He cited the case of Oyeyiola v. Adeoti (1973) NMLR p. 10 in support of his submission on this point. He urged the court to hold that the trial court was right when he held thus.”

“In the circumstance, this court is unable to declare that the plaintiff (respondent) is indebted to the defendant (appellant) in any amount whatsoever.”

The respondent filed a notice of their intention to contend that the decision of the court below be varied, dated 28th May, 2004 as 1) follows:-

“That all steps taken by the defendant/appellant towards the recovery of the alleged indebtedness of the respondent during the pendency of this suit be declared null and void and of no effect.”

The respondent premised their application on the following grounds, namely:-

1. That his Lordship, the learned trial Judge having found that the plaintiff/respondent was not indebted to the defendant/appellant in any amount whatsoever should have in consequence that all the steps taken by the defendant/appellant to pre-empt that decision of the court are all null and void and of no effect.
2. That learned trial Judge having arrived at the above conclusion as his Lordship rightly did, should have out of necessity made the appropriate order to restore parties to the status quo prior to the filing of this suit.
3. The defendant/appellant had due notice of and duly contested the claims of the plaintiff which among other prayers sought to restrain them from taking any steps towards the recovery of their unsubstantial debt claims against the plaintiff/respondent pending the determination of the suit herein.

The appellant therefore prayed that all actions embarked upon by the defendant/appellant in total disregard for that prayer should be and ought to be reversed as no debts were proven against the plaintiff/respondent.

The respondent submitted that it has been clearly stated in a plethora of cases by this Hon. Court and the Supreme Court starting from the celebrated case of Vaswani Trading Co. v. Savalakh & Co. (1972) 1 All NLR 283 and particularly in the case of Gov. of Lagos State v. Ojukwu (1986) 1NWLR (Pt. 18) p. 621 at page 623 Stanza 11 that:-

“After a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status wholly irrespective of the merits as may be ultimately decided.”

The respondent crave the exercise of the inherent powers of this court to get the respondent restored to their factory and other properties unlawfully seized by the appellant which action of the appellant was based on the disputed funds and debts owing generally during the pendency of the suit herein.

The above exposition is what the parties stand for. I will attempt to analyze and thrash out where the justice of the matter points at. It is pertinent at this juncture to pause and state that before I delve into the main appeal, there are preliminary matters that need to be tackled and they are as follows:-

“1. Whether or not, issue No.4 as formulated by the respondent at page 4 of their brief arose from the grounds of appeal.

2. Whether or not the purported respondent’s notice of intention to contend that the decision of the court below be varied is competent.”

Learned Counsel to the appellant, Mr. Duro Adeleye submitted that issues for determination must be formulated in relation to the grounds of appeal and the judgment or decision appealed against. In the case Fabiyi v. Adeniyi and 2 others (2000) 6 NWLR (Pt. 662) p.532 at p.546, learned Counsel for the appellant submitted that an appellate court must consider and decide on issues formulated by the parties and should not formulate its own issues. But the Supreme Court as per, Kalgo, JSC stated thus:-

“It is now settled that all issues for determination formulated in any appeal must be related to the grounds of appeal and the judgment or decision appealed against.”

Also in the case of Onyesoh v. Nnebedum (1992) 3 NWLR (Pt.229) p. 315 per Nnaemeka-Agu, JSC, reinstated the rules on framing issue in appeals to wit;

“With greatest respects, the way senior Counsel on both sides have formulated issues in this case calls for a restatement or at least a summary of the rules on framing issues in appeals as have been adumbrated in many decided cases of this court.

1. Issues are an indispensable part of an appellate brief because a point not raised in the brief cannot be entertained in oral argument (Dilibe v. Nwakozor (1986) 5 NWLR (Pt.41) 315.
2. An issue must arise from one or more of the grounds of appeal filed, as any issue which does not comply with this requirement must be struck out or ignored (Osinupebi v. Saibu (1982) 7 SC. 104, pp. 110-111).
3. An issue is not intended just to spotlight a slip committed by the lower court. Rather, bearing in mind the fact that an issue for purposes of an appeal is that which, if decided in favour of a party will result in a verdict in his favour, an issue is a statement of facts or a combination of facts with their legal consequences, not statements of abstract principles of law. Such facts are concretely tailored to the facts of the case. A resolution of an issue one way or the other will affect the result of the appeal. See Standard Consolidated Dredging & Construction Company Ltd. & Anor. v. Katonecrest (Nig.) Ltd. (1986) 5 NWLR (Pt. 44) 791 at p. 799.”

I must state here that I am bound by the decisions of the Supreme Court. The question to be asked at this stage would then be, can it be said that the issue in contention i.e. issue No.4, is related to any of the grounds of appeal or the judgment or decision appealed against? I have carefully and meticulously examined the thirteen grounds of appeal, none of the grounds of appeal relates to the issue formulated by the learned counsel. It is also my view that the concealment of the accounts of the respondent by the appellant for two years has not been related or tied to any of the grounds of appeal. The said issue is therefore incompetent and is accordingly struck out. All the arguments canvassed on the said issue contained on pages 13-16 of the respondent’s brief of arguments are similarly struck out.

Learned Counsel proffered arguments for the striking out of issue No.4 in the alternative. I am of the considered view that having arrived at the above conclusion, it becomes superfluous to give same any consideration.

I now proceed to examine the notice of intention to contend that the decision of the court below be varied, dated 28th day of May, 2004, and filed on the 31st day of May, 2004. The learned Counsel for the appellant submitted that the notice of intention to vary the judgment of the trial court was filed out of time. This is so because under the position of Order 3 rule 14(4)b, respondent’s notice must be filed within 30 days after service of the notice of appeal on the respondent.

Learned Counsel contended that the respondent’s notice in this case was filed on 31/5/2004 and served on the appellant on the same date; that was 4 months and 11 days after service of the notice of appeal on the respondent. That the learned Counsel contended, is clearly out of the 30 days stipulated expressly by the rules of this court.

It is appropriate at this juncture to reproduce for my consideration Order 14 rule 4(b) relied by the learned Counsel in opposing the application under consideration and it provides thus:

“(4) Any notice given by a respondent under this rule (in this order referring to as a “respondent’s notice”) must be served on the appellant and on all parties to the proceedings in the court below who are directly affected by the contentions of the respondent and must be served.

a…. Not relevant.

b. In any other case within thirty days, after the service of the notice of appeal on the respondent.”

May I say at this stage that the provision of the said rule reproduced above is very clear and unambiguous and does not need any aid to be interpreted.

The long and short of it is that for any notice of intention to contend that a decision be varied by a party, same must be filed and served on the other party within thirty days after the service of the notice of appeal on the respondent.

The respondent notice under consideration was dated 28th day of May, 2004 and it was filed on the 31st day of May, 2004. The notice of appeal was served on the respondent on the 20th day of January, 2004. That being the case, I am in complete agreement with the learned Counsel for the appellant that the respondent’s notice is incompetent having been filed out of the statutory period of thirty days and same is hereby struck out. The arguments canvassed on the purported respondent’s notice contained at pages 24-26 of the respondent’s brief are equally struck out. Judging from the complaints in the thirteen grounds of appeal reflected in the issues formulated by both parties (issue No.4 for the respondents have been struck out) 5 main issues arise for determination by us. Issues 1-5 formulated by the appellant will be sufficient to cover the rest of the issues formulated by the parties.

The point being made here is that issues 1, 2, 3, 4 and 5 as formulated by the appellant can conveniently and satisfactorily dispose of this appeal.

Issue No.1

Issue No. 1 deals with whether or not, the award by the trial Judge of the sum of $82,560.00 dollars can stand in view of the fact that there is clear evidence to the effect that the said sum had been paid to the respondent.

Learned Counsel for the appellant submitted that the respondents were quite aware of the said sum and same was paid to them. According to the learned Counsel, their main grouse is that considering the ruling exchange rate, the amount paid was inadequate and sought the intervention of the Central Bank in that regard.

Learned Counsel for the respondent on the other hand, submitted that the appellants having admitted that the respondent had unutilized funds of $82,560.00 dollars in their account with them, they (appellant) must justify how they disposed of the said sums validly without the knowledge and consent of the respondent.

Let me begin my consideration of this issue by stating that, as at the relevant time, i.e. 1992, the respondent had in their accounts with the appellant the sum of $82,560.00 that the said sum was in their account is not in dispute. The only issue in contention between the parties is that the amount was sold to a third party without their knowledge or consent and that the proceed of the sale was not given to them. The appellant however, contended that the foreign exchange in question was to the knowledge and consent of the respondent sold to a company called Marble Finance Company Ltd. Exhibit 4 is a letter from the appellant to counsel for the respondent at page 2 of the said letter, it was expressly stated by the appellant that the sum in dispute was repurchased and sold to a third party and the amount totaling N800,000.00 was paid to the respondent in two installments of N500,000.00 and N300,000.00 respectively. The last payment was made to one Alhaji Salami, who is one of the directors of the respondents. That aside, the exhibit further disclosed thus:-

“The sum of N188,979.84 which represents under payment in respect of the transaction considering the ruling exchange rate then has now been paid and Yisi Nigeria Limited’s account has therefore been appropriately credited. Find enclosed here the credit advice for the payment for the attention of our mutual client – Yisi Nigeria Limited”.

This letter was written on the 15th day of August, 1996. Reacting to the said letter, the counsel to the respondent George Alao and Company wrote to the Director of Foreign Operations, Central Bank of Nigeria requesting to know the operating ruling rates relating to foreign exchange transactions vis-a-vis the naira on the 6th of May, as well as the 9th of July, 1992. The Central Bank obliged them by giving them exhibit 5, a letter dated 22nd August, 1996, containing ruling exchange rate of 5th May, 1992 and 7th July, 1992. The buying rate for 5th May was N18.3645 to a dollar and the selling rate was N18.5500, while on July 7th, the buying rate was N18.3447 and the selling rate was N18.5300. Re-course to the selling and buying rates of the naira vis-a-vis the dollar will be made later in this judgment.

On the 6th of September, 1996, the counsel to the respondent, after receiving exhibit 5 from the Central Bank of Nigeria, wrote another letter to the same bank and said letter inter alia states thus:

“Our client have contacted the bank on several occasions with a view to recovering their unutilized foreign exchange without success hence, they are appealing to the Director to use his good offices to intervene in the matter so that the said $82,560.00 is fully restored to our clients’ account. This the long and short of our clients’ mission in embarking on this last line of a possible peaceful resolution of this dispute rather than resorting to legal proceedings which may become inevitable if all appeals remain unheeded. We sincerely look forward to an early action from the CBN as appropriate. We are immensely obliged.”

In response to the letter quoted above, the Central Bank wrote another letter to the appellant on the 30th October, 1996. The relevant portion of the same reads thus:-

“We have investigated and conclude as follows:-

1. That the bank sold the unutilized balance to Marble Finance Limited, in accordance with the foreign exchange regulation operating then.
2. That the bank made three payments totaling N988,890, on three dates to the customer’s account.
3. That these payments were made because the customer insisted that he did not have a fair deal.
4. That applying the ruling rate then, the customer was under paid by N542,508.

In view of the foregoing, the bank is required to credit the customer’s account with the sum of N542,508 in full and final settlement of the outstanding balance, within two weeks of the receipt of this letter.”

PW1 and PW2 both officials of the respondent admitted under cross-examination that the appellant complied with the directive of the Central Bank by crediting the account of the respondent with the sum in issue at the ruling exchange rate which was about N18.00 to U.S. $1.00 PW2, Alhaji Yusufu Abdulsalami, the chairman of the respondent under cross-examination stated thus:-

“I instructed my lawyer to write to the CBN about the $82,000 dollars and he did. I am aware that the CBN wrote directing that the amount be credited to my (the plaintiff’s) account using the ruling exchange rate at the time of the transaction. I am aware that the Trade Bank mandatory complied with the direction and credited the plaintiff’s account with the amount”.

It is my view that in the light of the pieces of evidence adumbrated above, the award of U.S. $82,560 to the respondent cannot stand. The question to be asked at this stage is this that should it be fair and just, after all the pieces of evidence set out above for the trial Judge to order the defendant/appellant to pay the money again to the plaintiff/respondent?

I am of the considered view that, if the trial Judge had assessed all the evidence adduced by both parties as he was bound to do, he would have come to the inevitable conclusion that the unutilized $82,560 had actually been paid to the respondent in three installments of N300,000, N500,000 and the reverse entry as per exhibits 10A and D11 respectively.

The submission of the learned Counsel for the respondent that the appellant could not sell the $82,560.00 without their knowledge cannot hold in the light of the evidence adumbrated above. Equally untenable is the contention of the learned counsel that the appellant did not have written instruction to sell the disputed $82,560.00 to C Marble Finance. The evidence of DW1 at page 94, paragraph 3 of the records where he is quoted to have stated thus:-

“We did not have any written instructions of the plaintiff to sell to Marble Finance”

This is only an extraction from the evidence of DW1, but if the entire evidence is considered the written instruction harped on by the respondent would become irrelevant DW1 stated at page 94, first paragraph line 8 thus:-

“The plaintiff came with the buyer i.e., the plaintiff came with the buyer.”

It is therefore my considered opinion and I so hold that where the plaintiff/respondent came with the buyer of the disputed foreign amount to the appellant for the purpose of selling same, written instruction in the circumstance of this case becomes irrelevant. In the light of all that has been stated above, grounds 1, 4 and 5 of the appeal are meritorious and same are accordingly allowed.

Issue No.2

This issue is premised on whether the findings of the trial Judge is not perverse when he held that exhibits 10 and l0A have no I connection with the unutilized foreign exchange ($82,560.00) in one breath and at another breath that it was the agents of the appellant and by implication the appellant who sold the same unutilized $82,560.00 to the respondent.

Now, it is appropriate to have a look at exhibits, 10 and 10A and to find out whether or not at the time they were admitted in evidence they were marked as exhibits D10 and D10A. A cursory look at the said exhibits in question will reveal the fact that at the time they were admitted in evidence they were marked as exhibit 10 and 10A. One cannot therefore agree more with the learned Counsel for the appellant that the trial court was totally out of tune with the facts of the case before it or did not evaluate the evidence as it should before making his finding.

Learned Counsel for the respondent referred the court to page 129 paragraph 2 of the record wherein the trial Judge held thus:

“On the issue of whether or not, the plaintiff is entitled to its unutilized $82,560.00 SME loan, the DW1’s admission is that no payment was made to the plaintiff in respect of same. That settles the issue as it is a clear admission against interest.”

Learned Counsel referred the court to the cases of Adeyeye v. Ajiboye; Kimdey v. Governor of Gongola State (supra) and urged us to hold that the decision of the trial court is the correct one.

It is appropriate at this stage, to refer to the evidence of DW1 under cross-examination with a view to finding out whether or not, what the witness was quoted to have said supra amounts to an admission in the circumstance of this case. At page 45, 2nd paragraph, first line, DW1 under cross-examination stated thus:-

“I will be surprised if the plaintiff says it does not know Marble Finance. It was the plaintiff that sold the foreign exchange to Marble Finance with the bank as the intermediary … Exhibit 10 is identified. it is a cheque written in the name of Alhaji Yusuf Salami.”

Needless to say, Alhaji Yusuf Salami is the chairman of the plaintiff to whom payments of the amount on the said cheques were made. The question to be asked at this stage is can it be said that in the light of the evidence adumbrated above that the mere fact that DW1 – said that no payment was made to the plaintiff that per se can amounts to an admission? I do not think so. This is so because on the two cheques the names of Marble Finance was boldly written. The mere fact that the chairman is said to be an illiterate who was not even substantiated will not avail the respondents in view of clear evidence before the trial Judge that it was the chairman of the plaintiff that came with the buyer.

That being the case, I hold without any hesitation that DW1 did not make an admission against their interest as held by the learned trial Judge. The case of Adeyeye v. Ajiboye; Kimdey v. Governor of Gongola State (supra) are applicable to the facts of the case we have at hand. I equally, find in the light of the evidence of DW1 (supra) and what is written on exhibits 10 and 10A that the finding of the learned trial Judge that the said exhibits have no connection with the unutilized U.S. $82,560.00 are not borne out of the evidence before him and same is therefore perverse.

Where a trial court appraises the facts of a case and evaluates the evidence, it is not the function of an appellate court to interfere with such finding of facts made by the trial Judge see the case of:-

1. Sagay v. Sajere (2000) 6 NWLR (Pt.661) p. 360
2. Wilson v. Oshin (2000) 9 NWLR (Pt.673) p. 442

A trial Judge is supposed to evaluate and weigh the evidence and use the one which is heavier but not by the number of witnesses called but by quality and probative value of the evidence.

1. Mogaji v. Odofin (1978) 4 SC p. 91
2. Solomon v. Mogaji (1982) 11 SC p. 1

But where the trial Judge has not properly evaluated the evidence, the appellate court can safely and properly set the findings made aside.

1. Salako v. Dosumu (1997) 8 NWLR (Pt. 517) p.371.
2. Umesie v. Onuaguluchi (1995) 9 NWLR (Pt.421) p. 515.

In the light of the evidence adumbrated supra it is my considered opinion that had the trial Judge properly evaluated the evidence adduced before him, he would not have come to the conclusions that exhibits 10 and 10A had nothing to do with the unutilized foreign exchange or that no payment was made for it by Marble Finance Ltd. or the appellant. I therefore hold that the findings and conclusions of the trial court are perverse and on the authorities of

1. Salako v. Dosunmu; Umesie v. Onuaguluchi (supra) the perverse findings stated supra are set aside. Grounds 3 and 4 of the appeal are meritorious and same are hereby allowed.

Issue No.3

Issue No.3 as stated earlier is to the effect that whether the invocation of section 149(d) of the Evidence Act against the appellant for not tendering letters of credit and CBN regulation (both pleaded) is right in law.

Learned Counsel for the appellant contended that after pleading the said documents, at the trial they felt they did not have to tender the two documents as they could successfully defend the action without tendering them. It is his contention that though parties are bound by their pleadings, it is however not the law that they must lead evidence on all facts pleaded. Learned Counsel further contended that in this case, they did not see the relevance of tendering any letter of credit because the area of dispute between the parties was narrowed down to outstanding balance on SME loan. They did not bother to tender the CBN regulation in view of exhibit D11 (a letter from the Central Bank) tendered through DW2 in which the bank acknowledged that the repurchase and sale of the unutilized SME loan was in line with the CBN regulation then in place.

Learned Counsel for the respondent submitted on the other hand that the trial court’s invocation of section 149(d) of the Evidence Act was right in fact and in law. The non-production of the documents having been pleaded must be held against them.

Section 149(d) of the Evidence Act provides thus:-

“(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

The question to be asked at this stage is whether in the light of the evidence adduced in this case both oral and documentary, it can be said that the appellant withheld evidence which when produced would be unfavourable to her case?

To answer this question, recourse must be made to paragraph 14 of the amended statement of defence in which, it is alleged that the appellant pleaded the two documents in question. The paragraph for ease of reference is hereunder reproduced thus:-

“The defendant avers that it had to repurchase the unutilized U.S $82,560.00 because as at then, there was a CBN regulation to the effect that the foreign currency allocation not utilized by the bank customer within 21 working days after its allocation must be returned to the CBN or repurchased by the bank from the customer. Evidence shall be led on this CBN regulation at the trial (Italics mine for emphasis).

It is very clear from the paragraph of the statement of defence quoted (supra) that appellant made it abundantly clear that, evidence shall be led on the CBN regulation not that the regulation itself would be tendered and relied upon at the trial as canvassed by the respondents. The question then is this, did they lead evidence on the CBN regulation as stated in the said averment contained in the said paragraph?

Learned Counsel for the appellant submitted that the defence did not bother to tender the CBN regulation in view of exhibit D11 (a letter from the CBN) tendered through DW2. The learned Counsel for the respondent on the other hand submitted that a mere letter such as exhibit D11 cannot suffice, the regulation must be tendered and admitted in evidence he further submitted.

Exhibit D11 a letter from the Central Bank to the managing director of the appellant dated 30th October, 1996, stated inter alia thus:-

“We have investigated and conclude as follows:-

1. That the bank sold the unutilized balance to Marble Finance Limited in accordance with the foreign exchange regulation operating then.
2. That the bank made three payments totaling N988,980 on three dates to the customer.
3. That these payments were made because the customer insisted that he did not have a fair deal.
4. That applying the ruling rate then, the customer was under paid by N542,508”

It is clear from the contents of the letter stated (supra) that the CBN acknowledged that the repurchase and sale of the unutilized SME loan was in line with the CBN regulation then in place. Learned Counsel for the appellant urged the court to hold that the court below misconceived the purport of section 149(d) of the Evidence Act and erroneously invoked same in the circumstance.

In the case of N.I.D.B. v. Olalami Ltd. (supra) the facts are not dissimilar from the one at hand, the defence, as counter-claimant pleaded some documents relating to application for approval of mortgage. However, the defence therein discovered that the approval of the Governor was not a legal necessity as the document in issue was a mere deed of debenture and had nothing to do with land. The pleadings relating to the application for approval by the Governor was abandoned and no evidence led on same, neither was the application tendered. The trial court that the application was not tendered, because if tendered it would have been against the defence. This court reversed this, being erroneous in law.

I am of the firm view that the letter from the CBN, exhibit D11 is sufficient primary evidence coming through the CBN correspondence. The counsel’s contention as to which regulation operated then and which one was inapplicable then is mere hair splitting argument which I am not ready to accept. The learned trial Judge erred in law by holding at page 125, paragraph 3 of the record that no such letters of credit and CBN regulation exist and that if they ever existed, the tendering of them would have produced adverse results to the appellant. The facts of the Alan Oparaji & 2 Ors. v. Nwosu Ohanu & Ors. are not applicable to the facts of the case at hand. Ground 2 of the grounds of appeal therefore allowed.

Issue No.4

This issue deals with the appropriateness of the finding of the trial court that no relevant document was tendered on the CBN regulation on which the trial court rested its further finding that there was no such regulation in view of exhibit D11 tendered by the appellant.

Learned Counsel for the appellant after reproducing the contents of paragraph 14 of the statement of defence contended that in line with the fact pleaded DW1 and DW2 testified on behalf of the appellant and through DW2, exhibit D11 was tendered. Learned Counsel contended that as per the said paragraph of the statement of defence (supra) they pleaded that evidence shall be led on the regulation.

Learned Counsel for the respondent submitted that there is no iota of evidence either in the pleadings or oral evidence to establish that the appellant paid any money to the respondent for the so-called repurchase of the disputed funds.

I pause here, to say with due respect to the learned Counsel that it is not the law that evidence is pleaded in the pleadings. The law on pleadings is that you only plead facts in support of pleadings and then lead oral evidence to support the pleaded facts.

I have in the course of this judgment held that D11 is sufficient primary evidence coming directly from the CBN’s correspondent. The oral evidence of DW1 and DW2, if it had been evaluated by the trial court along with exhibit D11, it would not have arrived at the conclusion it arrived on this issue. The conclusion of the court on this issue is perverse as same was not based on the evidence before the trial court and it is accordingly set aside. Consequently, I answer issue No.4 in the negative and ground 6 of the grounds of appeal is accordingly allowed.

Issue No.5

This issue is predicated on whether or not, any other organization either than the Central Bank of Nigeria (CBN) could impose any rate(s) of exchange of foreign currency other than the one fixed by the said bank or set aside same either expressly or impliedly.

Exhibit 5, is a letter from the Central Bank to the counsel of the respondent… response to latter’s request of exchange rate of the naira vis-a-vis the eight major world currencies published in 1992. The selling and the buying rates of the naira for the 5th May, 1992 were given by the Central Bank as follows:-

1. Buying rate 18.3645 to a dollar
2. Selling rate 18.5500 to a dollar

For the 7th day of July, 1999

1. Buying rate 18.3447 to a dollar
2. Selling rate 18.5300 to a dollar

Needless to say, the official exchange rate was clearly presented before the court and was made by the Central Bank of Nigeria in answer to the letter by the respondent’s Counsel, seeking to know the official rate of exchange in respect of the two dates, 5th May and 7th July, 1992, the two dates relevant to this matter under consideration. Another rate, claimed to be fair was also placed before the trial court. One would have thought that the court below ought to have preferred as a matter of law the official rate for three reasons:-

1. It is not in doubt that the ultimate regulatory authority in Nigeria is the Central Bank of Nigeria. See the case of:-
2. Union Bank of Nigeria Ltd. v. Prof. Albert Ojo Ozigi (supra)
3. Central Bank Act, Cap. 47, Laws of the Federation of Nigeria (1990) (supra)
4. In adjusting the credit entry for the respondent on account of unutilized SME loan foreign currency, the appellant adopted the official exchange rate as dictated by the CBN.
5. The rate can only be set aside, if properly challenged and same was not challenged as no such relief was claimed by the respondent.

I would like to observe that, one point that calls for determination before I am done in this issue, is the doctrine of lispendes that the court below attempted to bring at page 129 of the record when it stated as follows:-

“The CBN and the defendant could not have rightly, let alone finally acted when this action was already pending”.

Learned Counsel for the appellant submitted and I cannot agree more with him that the observation by the court below is perverse. All correspondence between the parties and the CBN; all directives by the CBN and all reactions by the respondents took place before the suit was filed. The last correspondence from CBN in which it directed the appellant to credit the respondent at the appropriate rate is exhibit D11 dated 30/10/96. The action was filed on 21/11/96 as can be seen on pages 1 and 2 of the record. This clearly shows that the intervention of the CBN was before the action was filed and not after as stated by the court below.

From all that have said above on this issue, I am of the considered opinion and I so hold that the court below was in grave error to have preferred a so-called fair rate of exchange to the actual official rate fixed by the CBN. I therefore answer issue No.5 in the negative and allow ground 7 of the grounds of appeal.

Issue No.6

Issue No.6 for determination has been over taken by event as the award of $82.566 made by the trial court has been set aside. No useful purpose will be achieved by giving it (issue) any consideration and I so hold.

Issue No.7

Since there was no counter-claim by the appellant, the trial court could not competently pronounce on quantum of indebtedness of the respondent to the appellant. Ground 9 of the grounds of appeal therefore succeeds and is hereby allowed.

Issue No.8

This ground, like ground 6 has been over taken by event in view of setting aside the award made by the trial court. It will not serve any useful purpose in this appeal to give same any consideration.

Issue No.9

Issue No. 9 like issues No. 6 and 8 has also, been over taken by event. It will be an exercise in futility to give it any consideration and I so hold.

Issue No. 10

This issue No. 10 like the issues stated (supra) has been over taken by event in this appeal and no useful purpose will be achieved by considering same.

Issue No. 11

This issue deals with whether or not the award of N45,000 costs against the appellant is proper and justified in law. It is my considered opinion that having set aside the award of the trial court in favour of the respondent the question of awarding cost against the appellant does not even arise. The cost, like the award of $82,560 to the respondent by the trial court against the appellant is hereby set aside. It is trite that cost is awarded in favour of a successful litigant.

In conclusion, I would like to say that it will be a travesty of justice to order the appellant to pay to the respondent for the second time the disputed sum of $82,560.00 after there is unequivocal and clear evidence that the said sum had been paid to them. The adage that one cannot eat his cake and have it again is apt in this case. The appeal is meritorious and same must and it is hereby allowed. The order of the court below directing the appellant to pay.

“1. The sum of $82,560.00 standing to the credit of the plaintiff as at the 1st of May, 1992, in his account with the defendant.

2. Interest on the said plaintiff’s funds at 21% per annum from 1st May, 1992, up to the date of judgment and thereafter at 10% on the judgment sum, until the judgment debt is fully liquidated.
3. A declaration that the plaintiff having paid a total sum of N5,200,000.00 as at 30th January, 1995, and having substantial credit, due to them as claimed in paragraphs 1 and 2 above could not and is not owing the defendant, a staggering debt of N9.072,227 as demanded in the defendant’s letter of 1st November, 1996, or owing any sum whatsoever.
4. An order on the defendant to render a correct and proper statement of all the accounts of the plaintiff with the defence.”

Are all set aside. The cost of N45,000.00 awarded in favour of the respondent is equally set aside. The respondent shall pay N1,000.00costs to the appellant.

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Other Citations: (2005)LCN/1676(CA)