Union Bank of Nigeria Plc & Anor V. Sparkling Breweries Ltd. & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

This appeal is from a judgment of Narebor, J., of the Warri High Court in suit No.W259/89 given on the 19th day of April, 1996, in which the learned trial Judge dismissed the appellants’ counter-claim in its entirety.

The respondents herein as plaintiffs instituted an action against the appellants in suit No.UCH/77/88 at the Ughelli Judicial Division wherein the respondents sought inter alia, to challenge the legality of certain instruments which conferred upon the appellants the right to manage the respondents businesses and undertakings in the events of the respondents default in repaying certain loan facilities. The respondents thereafter in 1988 obtained an interim injunction restraining the 2nd appellant from managing the undertakings of the respondents.

On the 14th of November, 1989 after the appellants had filed their statement of defence and counter-claim, suit No.UHC/77/88 was transferred under sections 35 & 36 of the Bendel High Court Laws of 1976 from the Ughelli Judicial Division to Warri Judicial Division and given suit No. W/259/89.

Thereafter, the respondents filed a notice of discontinuance and the respondents claim was on the 2nd of December, 1994 struck out. The appellants’ counter-claim was also on that day struck out but was thereafter, upon an application brought by the appellants, relisted on the 27th of March, 1995. The appellants counter-claim proceeded to trial with both parties calling evidence and as earlier mentioned the appellants counter-claim was dismissed in toto. By a notice of appeal dated the 31st day of May, 1996, the appellants appealed to this court. It is pertinent to note that the High Court in dismissing the counter-claim held as follows:-

(1) That exhibits A, B, H, H1, J and J1- the statements of accounts were of no probative value and were thereby discountenanced as they offended against sections 96(1) (h), 96(2) (e) and 37 of the Evidence Act (old one).

(2) That the amounts stated in exhibits M and M1, the letters of demand dated 29th of June, 1988 were at variance with the appellants’ counter-claim and that while the amounts stated in these exhibits were neither averred to in the counter-claim, the appellants only witness did not in his evidence state the amount demanded in those exhibits and furthermore the amounts stated in the exhibits ere not accurately reflected in the statement of account already discountenanced.

(3) That there was no evidence to establish the offer or grant of the said facilities by the appellants.

(4) That exhibits K and K1 – the registered Deeds of Debenture and Exhibit P, letters written by the respondents did not constitute proof of respondents indebtedness to any specific sum neither did they constitute admission of indebtedness.

(5) That exhibits C and C1, notification letters of appointment of the 2nd appellant as receiver are invalid being contrary to section 1250 of the Property and Conveyancing Law (Cap. 129) Laws of former Bendel State, 1976.

(6) The appellants claim for N50 million damages suffered as a result of the injunction granted in 1988 was not sustainable because:

(a) The injunction was granted in suit No. UHC/77/88 a different suit and therefore the claim should be directed to the Ughelli High Court.

(b) Not enrolled order of the said injunction was in evidence.

(c) The appellants did not particularise the damage being claimed.

Both parties filed their respective briefs of argument which they adopted at the hearing of this appeal.

From the grounds of appeal, the appellants raised one lone issue for determination. It reads:-

“Whether having regard to the pleadings the appellants have adduced credible evidence to substantiate their counter-claim.”

For their part, the respondents formulated four issues for determination as follows:-

“(1) Whether in holding that the statements of accounts were of no probative value, the lower court was sitting on appeal over its earlier ruling that the statements of account were relevant and admissible or was only estimating the weight to be attached to the statement of account as part of its duty to appraise the evidence led?.

(ii) Whether the learned trial Judge was justified in holding that there was no credible evidence of the amount outstanding on the accounts of the defendants?.

(iii) Whether the lower court was right in holding that the appointment of the 2nd appellant as receiver/manager was invalid?.

(iv) Whether the lower court was right in dismissing the claim for damages?

At the hearing of the appeal, the learned Counsel for the parties made oral submissions in elaboration of the arguments contained in their briefs.

Miss O. T. Kasumu submitted that the learned trial Judge overruled himself that some documents were inadmissible. She contended that the procedure adopted by the learned trial Judge was wrong. Reliance was placed on the case of Lawal v. Dawodu & Anor. (1972) 1 All NLR (pt.2) 270. She referred to pages 4-6 of her brief and pages 59, 66 and 67 of the record and also pages 117 and 118.

On the appointment of a receiver, she submitted that the learned trial Judge held that it was contrary to law reference was made to page 121 of the record and section 125 and 127 of the Property & Conveyancing Law of Bendel State, 1976. Reference was made to exhibits K and K1 – the Deed of Legal Mortgage. It is her contention that the learned trial Judge did not consider the relevant section of the Property and Conveyancing Law. She submitted that the parties have the right to contract themselves out of the provisions of the law.

Reference was made to the Law of Mortgage by Fisher and Lightwood (10th Ed.) pages 53 and 382-383. She stated that exhibits M and M1 which are letters of demand were rejected during the trial. She contended that the learned trial Judge having expunged the statements of account, the only Exhibits left are exhibits M and M1 but he had also rejected exhibits M and M1. She submitted that the learned trial Judge was wrong in rejecting exhibits M and M1. She argued that there were no contradictions between the Exhibits tendered in this case. Reference was made to pages 127 and 128 of the records and the letters written by the receiver. She urged this court to allow the appeal.

Mr. Nweze for the respondents posed a question, and that is, what should a court of trial do if evidence was wrongly admitted? He submitted that he referred to series of cases at page 7 of the respondents’ brief. Did the court as a matter of fact reversed its earlier decision or was it just evaluating evidence? Reference was made to page 3 of the reply brief and page 118 of the records. It was argued that the court was only evaluating evidence and did not reverse itself.

Mr. Nweze urged this court to expunge from the records exhibits A, B, J, J1, H & H1 in accordance with their cross-appeal. It was submitted that the statement of account tendered is secondary evidence even though the appellants called it primary evidence. Reference was made to page 2 of the cross-appellants’ brief. It was also submitted that the essence of the cross-appeal is whether or not there was credible evidence of the debt being owed. It was contended that the documents tendered in respect of the debt owed were inconsistent and they should be expunged as being unreliable. On appointment of a receiver it was submitted that there must be proof of a demand and debt.

Mr Nweze urged us to dismiss the substantive appeal. As for the cross-appeal one single issue was identified.

Mr. Nweze submitted that the statements of account having been objected to on ground that they offended section 97 of the Evidence Act they should be expunged by this court. Learned counsel for the respondents urged this court to allow the cross-appeal and expunged all the statements of account from the record. In reply Miss Kasumu -learned counsel for the appellants submitted that the cross-respondents’ brief was filed on 3/12/99. The cross-respondents are adopting and relying on it. As for the cross-appeal, it was submitted that one has to look at the nature of the objections raised by the cross-appellant in relation to the statement of accounts which were tendered and admitted. Reference was made to page 58 of the records. It was submitted that the court held that since the documents were original there was no need to comply with the section 97 of the Evidence Act. Reference was made to the case of Okulade v. Alade (1976) 1 All NLR 67 in the cross-respondents’ brief. It was contended that if a new point is to be canvassed on appeal leave of this court is required by the cross-appellant since it was not raised at the lower court. It was argued that if the learned trial Judge had reversed himself the cross-appellant is no longer an aggrieved party or person. Reference was made to the case of A.C.B v. Oba (1993) 7 NWLR (Pt.304) 173 at 182. Miss Kasumu then urged this court to dismiss the cross-appeal.

I now proceed to treat the loan issue raised at page 3 of the appellants brief. It should be noted that the learned counsel for the appellants broke the loan issue into five parts, namely:-

(a) Wrongful dismissal of statement of acounts.

(b) The evidential value of exhibits M and M1 – the letters of demand.

(c) Proof of respondents’ indebtedness.

(d) The validity of 2nd appellant’s appointment.

(e) Wrongful dismissal of appellants claim for damages.

As for (a) above, that is, wrongful dismissal statements of accounts, it was submitted for the appellants that during the course of the trial the appellants tendered statements of accounts each in respect of the respondents loan and overdraft accounts maintained at the Bank. Exhibits A, B, H, H1, J and J1 are the said statements. It was contended that the respondents objected to the admissibility of these documents based on section 97 of the Evidence Act and also on the ground that they are originals which ought to be in the possession of the respondents. It was submitted that the trial court in four separate rulings ruled that the documents were original documents from the 1st appellants and therefore rank as primary evidence.

It further went on to hold that foundation had been sufficiently laid for the documents which were relevant. Reference was made to pages 59, 60, 66 and 67 of the records on the rulings of the lower court. It was stated that in the judgment of the trial court, it held that these exhibits had no probative value and therefore dismissed them. It was submitted that the substantial reason for so holding was because they offended against section 96 of the Evidence Act (old one). It was contended for the appellants that the trial court in dismissing those exhibits, in effect, wrongly reviewed and set aside its earlier rulings. Reference was made to the cases of Lawal v. Dawodu & Anor. (1972) 1 All NLR (Pt.2) 270 at 282; Bakare v. Apena (1986) 4 NWLR (Pt.33) 1. It was submitted that the learned trial Judge whether rightly or wrongly, having held that the exhibits constitute primary evidence could not again alter same as constituting secondary evidence.

It was contended that none receipt of statements of account – Exhibit A, B, H, H1, J and J 1 is not a basis and has never been a ground known in law for denying liability of a debt.

Part (a) above from issue No.1 in appellants brief is one and the same thing as issue No(1) in the respondents’ brief.

It was submitted for the respondents that in the course of the trial, the 1st appellant sought to tender the statements of account of the respondents. These statements of account according to the respondents were printed or typed on the original letter-heads of the appellant bank. The defence counsel objected that the statements of account were inadmissible being secondary evidence. It was also submitted that the objection was opposed by the plaintiff’s counsel who pointed out that the statements of account sought to be tendered are not copies of a statement of account but are typed on the original letter-head of the Bank and are therefore originals. The lower court relied on this argument and admitted the statements of account holding that it has:-

“…examined the document tendered and find that it is an original copy of statement of account…”

It was submitted that in the course of his judgment however, the learned trial Judge held in effect that even though the statements of account were originals in the sense of being typed on the original letter-head of the Bank, in so far as they purport to prove the content of an entry in a Banker’s Book, they are secondary evidence of such entries. It is the respondents case that to succeed in the action, the appellants needed to prove the balance outstanding against the account of the defendants in the books of the Bank. To prove this balance, it has to tender the books of account by whatever name called on which the transactions were recorded contemporaneously as they took place. This may be a ledger card, a voucher but whatever it is, that is “the account”.

It was contended that the account is primary evidence. The Bank may decided however not to produce the account and instead produce a statement of account.

This is by virtue of section 97 of the Evidence Act. So, whilst the account itself is primary evidence it was submitted, any reproduction of that account is secondary evidence of the account it was concluded.

I should like to mention that if is trite law that admissibility of a document and the weight to be attached to it are two different things. Indeed, the learned trial Judge made this point whilst admitting the statement of accounts. See page 67 lines 15-17 of the records where the learned trial Judge said:-

“I have listened to both learned counsel on the admissibility of the documents tendered.

As I stated earlier in my previous ruling, relevance and admissibility are separate matters in contradistinction from weight. The issue raised by learned counsel (Mr. Nweze), relate to weight which, incidentally would be left for address.”

It seems to me that section 92 of the Evidence Act provides for the things to be considered in estimating the weight to be attached to a statement and this include whether the statement was made contemporaneously with the occurrence or existence of the facts stated.

I hold the view that in answering the question posed by this issue therefore, it is necessary to consider what the learned trial Judge did. At page 118 lines 5-17 of the records, the court held as follows:-

“As in Yusuf v. A.C.B. (supra) the witness (Ogeh) did not scrutinize or compare exhibits A & B with the Bank’s Record Book from which they were extracted. exhibits A & B were objected to by Mr. Nweze of counsel for the defendants to the counter-claim but were admitted by court as being relevant. I now hold that exhibits ‘A’ and ‘B’ offend against section 96(i) 9H(h). Section 96(2)(e) and section 37 of the Evidence Act (old one). Accordingly, I discountenance both and dismiss them as having no probative value in this case.

Exhibits ‘J’, ‘J1’, ‘H’ and ‘H1’ are also each tainted with the same evidential defeat as Exhibits ‘A’ and ‘B’. Exhibits ‘J’ (Sales Account), ‘J1’ (Statement of Loan Account), ‘H’ and ‘H1’ are also hereby discountenanced as they lack probative value.

They are unreliable”.

It is patently clear from the foregoing that the trial court did not reverse itself by holding that the statements have suddenly become irrelevant or inadmissible, rather, the trial court only decided that no weight should be attached to them because they are of no probative value and are unreliable. This the trial court is perfectly entitled to do.

The appellant has sought to reply on the case of Lawal v. Dawodu (1972) All NLR 270 (Reprint) but the facts are clearly different. In Lawal v. Dawodu (supra) the court had admitted evidence of testimony in a previous case having found that the previous case was over the same land. Consequently, on the issue of whether the previous case was over the same subject matter, the court had given a ruling and was therefore functus officio.

In other words, it was not open for the other side to re-open the matter under the doctrine of issue estoppel. When therefore in the judgment, the court said the previous case was over the same subject-matter it no longer had jurisdiction to pronounce on the same matter as it was functus officio. In that case, the court was not considering the weight to be attached to the evidence led by the parties. Bakare v. Apena (1986) 4 NWLR (Pt.33) 1, also relied on by the appellant clearly does not apply in this case as that was a case where the trial Judge after having delivered his judgment invited the counsel in the matter and amended the judgment after holding that he did not properly appraise the pleadings of the parties.

In the case in hand, I hold the view that the learned trial Judge was not in error when he decided on the weight to be attached to the evidence led before him in respect of some documents tendered in the course of the proceedings of the case. It should be mentioned that there is a plethora of authorities to the effect that where evidence has been wrongly admitted, the law is that the evidence must be expunged from the records when the judgment is being considered. The basis of this rule is that the evidence does not go to any issue and, that being so, it cannot be legal evidence upon which the court can make a finding of fact. See Agbaje v. Adigun & Ors. (1993) 1 NWLR (Pt.269) 261; National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) All NLR (reprint) 138; Okonji v. Njokanma (1991) 7 NWLR (Pt.202) 131; Hassan v. Maiduguri Management Committee (1991) 8 NWLR (Pt.212) 738; Namsoh v. State (1993) 5 NWLR (Pt.292) 129 at 144.

In A.C.B. v. Oba (1993) 7 NWLR (Pt.304) 173 at 182, this court held as follows:-

“The only witness for the appellant did not testify that he personally examined the statement of account and compared it with the entries in the original bank books and found it to be correct. It follows therefore that even though Exhibit ‘E’ was admitted without objection it did not comply with the provisions of section 97(1)(h)(2)(e) of the Evidence Act and the trial Judge rightly expunged it from the record.”

Because of the foregoing authorities one is fortified to say that the learned trial Judge was right when he said that exhibits A, B, H, H1, J and J1 – the statement of account were of no probative value and should therefore be discountenanced as they offended against sections 96(1)(h), 96(2)(e) and 37 of the Evidence Act (old one).

The next point for my consideration which is part of issue No.1 in the appellants brief is the evidential value of exhibits M and M1 – the letters of demand.

It was stated for the appellants that, it is not in doubt and it cannot be denied that in paragraph 13 of the appellants counter-claim, exhibits M and M1 were pleaded and by the provisions of section 76 of the Evidence Act, oral evidence need not be given of their contents. It was contended that the documents speak for themselves. It was argued that it was not mandatory for the appellants witness PW1 give oral evidence of the contents or even stating the amounts demanded in those letters. It was also submitted for the appellants that it is immaterial who requested for the facilities even though the evidence on record shows that the respondents requested for same. Reference was made to Exhibit P – pages 138 – 141 tendered through the respondents DW1 under cross-examination. It was submitted that the issues which were material were that there were facilities enjoyed and whether these facilities had been repaid as the respondents seemed to suggest. It was also submitted that the learned trial Judge was wrong to hold that there was no other evidence in which the Appellants counter-claim could be established. Reference was made to exhibits K, K1, D, E, F, G, and G1 which served as evidence of the transactions that the respondents acknowledged taking loans and overdraft from the 1st Appellant to be secured – Solanke v. Abed & Anor. (1962) 1 SCNLR 371, (1962) 1 All NLR 230.

It was argued that the burden of proof ordinarily placed on the appellants had therefore shifted to the respondents. It was contended that the respondents on the other hand did not discharge the onus on them by satisfactorily showing that the facilities given them had been repaid.

It seems to me that (b) of issues No.1 in the appellants brief is tied to issue No.2 in the respondents brief. It was submitted for the respondents that in seeking to prove the balance outstanding to the accounts of Sparkling Breweries Ltd., PW1 said page 58 lines 22-30 of the records as follows:

“In respect of the 2nd plaintiff (Sparkling Breweries Limited), they were granted an initial loan facility to the tune of N66,056 million together with a fluctuating overdraft facility based on cheques presented by 2nd plaintiff and paid by the 1st defendant. The 2nd plaintiff has not paid the bank facilities. The total amount currently outstanding against the 2nd plaintiff is approximately N94 million (Ninety four million naira). I see the statement of 2nd plaintiff. I can identify it.”

It was submitted that after the above testimony of PW1, the statement of account, exhibits ‘A’ and ‘A1’ were admitted in evidence despite objection by the defence counsel based on section 97 of the Evidence Act.

It was submitted that under cross-examination it became clear that the statements were copied from the record of the Bank in 1995 and were not made contemporaneously with the transactions records. For Olo Cold Drinks Limited, the PW1 said at page 59 lines 23-28 of the records as follows:

“In respect of the 3rd plaintiff, the 1st defendant Bank also granted facilities to it. 3rd plaintiff company was granted loan facility of approximately N3.89 million was initially disbursed to it. The current balance on the loan account is N6.67 million. In respect of the overdraft, the current balance is approximately N50 million (fifty million naira). 1st defendant keeps statements of account of the said accounts.”

It was submitted that the statement of account were admitted as Exhibit ‘B’ notwithstanding the objection of the defence based on section 97 of the Evidence Act. Reference was made to the testimony of 20th June, 1995, at page 59 of the records.

I would like to point out that on 10th October, 1995, the PW1 continued his testimony and the above ritual of tendering the statements of account and objections thereto were repeated as borne out by the records. On that day more statements of account were tendered notwithstanding objection from the defence based on section 97 of the Evidence Act marked exhibits ‘H’ and ‘H’, exhibits ‘J’ and ‘J1’ being statements of account for Olo cold Drinks Ltd., were similarly admitted. It would appear that the reason for over-ruling the objections of the defence to the admissibility was because the court was of the opinion as borne by the records that the statement of account were originals. (See pages 65-66 of the records). It seems to me that the statement of account in so far as it is an extract from the records of a Bank is secondary evidence of such records. See section 97(1)(g) and (h) of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990. Consequently, there is nothing original about a statement of account even when as in this case, it was typed out on the original letter-head of the 1st Appellant’s bank. I have no atom of doubt in my mind that PW1 confirmed this much when he said that exhibits ‘A’, ‘A1’, ‘B’, ‘B1’, ‘H’, ‘H1’, ‘J’ and ‘J1’ are copies of what they sent to the respondents. Furthermore, that they were extracted from the records of the Bank. This clearly shows that the exhibits under reference are secondary evidence of those records. See Yesufu v. A.C.B (1976) 1 All NLR 264 at 272. It is pertinent to note that PW1 did not say what these records were but if they were the Banker’s books, then the provisions of section 97(2)(e) of the Evidence Act must be satisfied before the statements of accounts would be ascribed with probative value.

It is also manifest from the records that PW1 did not give evidence that he compared the statements with the original books of the Bank and found them to be correct. PW1 did not even give any evidence of the existence of any such books even though they pleaded it in paragraph 13 of their statement of claim that they will rely on such books. The effect of a failure to lead evidence in support of an averment in a pleading is that such averment is deemed to have been abandoned. See Bala v.Bankole (1986) 3 NWLR (pt.27) 141; Nwogo v. Njoku (1990) 3 NWLR (Pt.140) 570.

It seems to me also that even if the records talked about by PW1 are something else other than Bankers Books, such records are the primary evidence and the statement of account the secondary evidence of the content of such records. The learned trial Judge was therefore right to have regarded the statements of account as unreliable on that ground.

As for the demand letter exhibits ‘M’ and ‘M1′, the said exhibits state that the Bank facilities were granted at the request of the defendants to the counter-claim. It is however manifest from the records that there is no documentary or any evidence to establish that defendants to the counter-claim applied for the said facilities. There is also no documentary evidence to establish any offer or grant of the said facilities by the counter-claimants. It is trite law that he who asserts must prove. I must say therefore without much ado that the indebtedness of the respondents was not sufficiently proved by the appellants before the trial court.

As for the validity of the second appellant’s appointment as a receiver, it was submitted that exhibits K and K1 the mortgage charge document specifically exclude sections 125 & 131 of the Property and Conveyancing Law of Bendel State, 1976 which provides for the circumstances when a mortgagee can exercise its power of sale conferred by law. It was stated that when parties contract themselves outside a particular provisions of the law, as in this case, they are deemed to have waived their right under that law in the absence of any illegality. Clearly therefore, it was submitted, that the respondents could not now seek refuge under non-compliance of these sections having expressly contracted themselves out of it. It was argued that in so far as power to appoint a receiver is conferred in Exhibits K and K1, appellants had no obligation to comply with sections 125 and 131 for the receivership appointment to be valid more so as those sections had been mutually ousted by the parties.

Issue No. 1(D) in the appellants’ brief is akin to issue No.3 in the respondents’ brief.

It was submitted for the respondents that the appellants have argued that the lower court was wrong to have invalidated the appointment of the receivership on the ground that it was contrary to sections 125 and 131 of the Property and Conveyancing Law. It was contended that this argument is based on the fact that exhibits ‘K’ and ‘K1’ specifically exclude sections 125 and 131 of the Property and Conveyancing Law Cap. 129 of the Laws of Bendel State of Nigeria, 1976. It is the contention of the respondents that Exhs. ‘K’ and ‘K1’ did not entitle the Appellant Bank to appoint a receiver.

It should be mentioned that section 125 deals with regulation of exercise of power of sale whereas section 131 has to do with appointment, powers, remuneration and duties of receiver.

I have examined carefully Exhibits ‘K’ and ‘K1’ and I am satisfied that the said exhibits did not entitle the appellant Bank to appoint a receiver. It seems to me that the power to appoint a receiver was given by contract in the defendant Exhibits ‘E’ and ‘F’. The appointment of the receiver was made pursuant to Exhibits ‘E’ and ‘F’.

Exhibits ‘E’ and ‘F’. did not exclude the provisions of sections 125 and 131 of the Property and Conveyancing Law of the then Bendel State, 1976. Consequently, non-compliance with those provisions renders the appointment of the Receiver/Manager invalid and the lower court to my mind was right to so hold. I also hold the strong view that if even the appointment of the Receiver/Manager was made pursuant to exhibits ‘K’ and ‘K1’ such appointment is liable to be declared invalid when it had not been proved that the payment of money secured had been demanded. (See section 125). This is because the appointment was contingent upon there being a debt balance in the account of the mortgagor. The lower court having rightly found that the appellant Bank has failed to prove that there was any debt balance outstanding, it follows that even on the deed of mortgage, the right to appoint a receiver could not be exercised by the Appellant Bank.

On issue No.1(e) which has to do with the allegation of wrongful dismissal of Appellants claim for damages, it was stated that suit No.UCH/77/88 filed at the Ughelli Judicial Division was transferred to the Warri Judicial Division of the same State High Court and given a new suit number to wit, suit No.W/259/89. It was submitted that the lower Court admitted this much at page 95 of its judgment, that is, that suit No.W/259/89 is one and the same suit initially filed at the Ughelli Judicial Division. It was submitted that the court was therefore wrong in dismissing 15(4) of its counter-claim for that reason. It was contended that upon transfer of the suit from Ughelli to Warri, the whole case file was transferred and hence all records of proceedings of the Ughelli court from part of the records of Warri High court. It is the contention of the appellants that the learned trial Judge was therefore bound to take notice of all orders or rulings contained therein, that is, the proceedings before him. Reference was made to Osafile v. Odi (No.1) (1990) 3 NWLR (Pt.137) 130.

It was further submitted that the respondent never denied obtaining an interim injunction at the Ughelli High Court nor did they deny that it was discharged by the Honourable court. In conclusion, it was submitted that in the event that this court reverses the lower court’s judgment as it relates to the respondents indebtedness, it follows that the lower court’s judgment as it relates to the N50 million claim for general damages ought to be reversed.

Issue 1(E) above is one and the samething with issue No.4 in the respondents brief. It was submitted for the respondents that having regards to the orders of the court below that the appointments of the Receiver/Manager was invalid, it follows that the appellant Bank cannot claim damages for being restrained from continuing in an unlawful act. The other point, it was submitted, is that the respondents in this case never applied for the order of injunction. It was applied for by one Prince Olori who was not a party to this suit. It was contended that the respondents should therefore not be visited with the sins of a third party.

I agree with the submission of the respondents that having regards to the orders of the court below that the appointment of the Receiver/Manager was invalid, it follows that the appellant Bank cannot claim damages for being restrained from continuing in an unlawful act. It is manifest from the records that the respondents in this case never applied for the order of injunction. It was applied for by one Prince Morrison Olori who was not a party to this suit. I agree and it is in accordance with fairness and equity that the respondents should not be visited with the sins of a third party.

It is also manifest from the records that the only evidence led on this point is contained at page 68 lines 27-31 of the records and reads as follows:-

“There was an injunction (interim) in this case previously in 1988. I do not know which High Court granted the said injunction (paragraph 10(4) of the counter-claim) The said injunction prevented the Bank from realising our security on the banking facilities granted the defendants to counter- claim and also prevented re-investment.”

It would appear that it is only from Exhibit ‘R’ that it is shown that the defendants to the counter-claim did not apply for nor obtain the said injunction. Exhibit ‘R’ – the ruling dated 28/2/89 by Onobun, J., shows that the order of injunction was made on 27th September, 1988 and was discharged on 28th February, 1989, a period of five months. The question therefore is how the Bank came about the sum of N50 million as damages for this period of five months. Is it the interest it would have earned on it or what? If it is the interest; then it is asking for double compensation as it was already charging interest on the balance supposedly outstanding on the respondent’s account since then and until judgment. See Anthony M. Soetan & Anor. v. Z. Ade Ogunwo (1975) 6 SC 22 at 28-29.

It must be said that, an appellate court will reverse on the question of damages only if convinced that the trial Judge acted on a wrong principle of law, or if the amount awarded is so high or low that there was an entirely erroneous estimate of damages. See Oduro v. Davis (1952) 14 WACA 46. In the case in hand, it cannot be said that the trial Court acted on a clear wrong principle of law to warrant this court to reverse its findings on damages.

Again, going by the counter-claim at pages 9-11 of the records, the total sum claimed against the two respondents was just over N27.5 million. It is very obvious that the sum of N50 million claimed as damages for the injunction was even more than the sum claimed as due as at the 28th February, 1989 when the order of injunction was discharged.

It seems to me therefore that even of the injunction was wrongly obtained, the claim for damages by the Bank is not only grossly exaggerated, but not substantiated at the trial with any evidence whatsoever and therefore was rightly dismissed by the lower court.

The next issue for my consideration is the cross-appeal.

The cross-appellants brief at page 2 raised two issues for determination. They read as follows:-

“(a) Whether the statements of account are primary or secondary evidence?; and

(b) If they are secondary evidence whether proper foundation for their admittance were laid in line with the provisions of section 97 of the Evidence Act?.”

(c) The respondents in the cross-respondents’ brief raised three issues for determination as follows:-

“(i) Whether or not the court has jurisdiction to entertain the appeal at all and or on the ground being canvassed by the cross-appellants?.

(ii) The second issue is whether or not the trial Judge was right in ruling as he did when he dismissed the objection as to admissibility?.

(iii) The third issue is a follow up on issue two i.e. even if the Judge was wrong is admitting the statement in evidence, can the cross-appellants raise the issue of admissibility on appeal?.”

The cross-appellants also filed a reply to the cross-respondents’ brief.

I must say straight away that there is infact only one issue for determination in the cross-appellant’s brief and that is – whether the statements of account are primary or secondary evidence?. It was submitted for the cross-appellants that the lower court clearly misunderstood the objection taken by the defence. It was argued that a statement of account in so far as they are extracts from the entries in books or records of a Bank are secondary evidence of such entries in those books or records. Consequently, there is nothing original about a statement of account even where as in this case it was typed out on the original letter head of the cross respondent Bank. This court is therefore urged to hold that the statement of accounts were wrongly admitted and to expunge them from the records.

On issue No. (1) in the cross-respondents brief it was submitted that the cross-appeal is not competent as the cross-appellant has not appealed against the judgment of the lower court which was in its favour. The cross-appellant only cross-appealed against an interlocutory decision given in the course of trial.

Issues (ii) and (iii) were argued together in the cross-respondents’ brief. It was submitted for the cross-respondents that this appeal being against a decision of the trial court can only succeed on the submissions and grounds of objection to admissibility canvassed before that court and not fresh grounds of objection.

As I have said above there is a reply to the cross-respondents’ brief and it replied to all the issues raised in the cross-respondents brief.

I must say straight away that in the course of trial of this case the cross-respondents Bank as borne by the several statement of account. On each of those occasions when the statements of account were sought to be tendered the cross-appellants objected pointing out that they are secondary evidence and that the provisions of the section 97 of the Evidence Act were not satisfied. These statement of account were however typed on the original letter headed papers of the cross-respondent Bank. This ostensibly made the court to admit them as original statement of account and as primary evidence. It seems to me that the only way a statement of account may be described as an original is when all that is sought to be proved is the statement of account as a document in existence. But if what is sought to be proved as in this case is the entries in a banker’s book or the contents of the records of a bank then the statement of account is secondary evidence.

Consequently, for it to be admitted in evidence the provisions of section 97 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 must be met. See Yesufu v. A.C.B (1976) 1 All NLR (Reprint) 328; A.C.B v. Oba (1993) 7 NWLR (Pt.304) 173 at 182. The provisions of section 97 that must be complied with are 97(i)(h)(2)(e).

In the instant case, at the point when these statement of account were admitted there was no modicum of evidence indicating that –

(a) That the statement of account were copied from entries in any book.

(b) That such book is one of the ordinary books of the bank.

(c) That such entries were made in the normal course of business.

(d) That such books is in the custody of the bank.

(e) That the statement of account were examined by anybody comparing it with the original entry and found to be correct.

Thus the proper foundation for the admissibility of the statement of account was not laid as required by (a) – (e) above.

It must be noted that the complaint of the cross-appellant is not embodied in the respondents brief but in the cross-appellant’s brief as prescribed in the case of Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419 at 445. It would have been different if there was no cross-appeal and the challenge was incorporated in the Respondents’ brief.

The cross-respondents said in their brief that the cross-appeal is academic. It must be mentioned that at no time did the lower court reverse itself to hold that the statement of account were inadmissible. It only held at page 118 of the records that they were of no probative value. The lower court did not revisit the issue of admissibility which is the issue before this court in the cross-appeal.

I am of the view that the appellant/cross-respondent is in the essence contending that having admitted the statements of account, the lower court ought to have ascribed due weight to them. The respondents/cross-appellants on the other hand are contending that issue of weight is irrelevant as the statement of account are inadmissible. If the respondents/cross-appellants succeed, the contention of the appellants/cross-respondents becomes academic since there will be no evidence upon which the issue of weight will revolve. I therefore do not share the view that the cross-appeal is academic.

It is the contention of the appellants/ cross-respondents that the respondents/cross-appellants are not aggrieved parties. It is however the contention of cross-appellants that the right to appeal is exercisable by parties to a suit and that section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979 expressly stated that any right of appeal –

“(a) shall be exercisable in the case of civil proceedings at instance of a party thereto…”

It seems to me that there was no restriction to parties aggrieved alone. In any event, in so far as the court below treated the statement of account as admissible evidence by failing to expunge them from the records, the respondents/cross-appellants remain a party aggrieved by the decision of the lower court until it is set aside.

On the issue that the cross-appeal raises fresh issues on appeal with out leave of court, it is the contention of the cross-appellants that on all the occasions the statement of account were tendered, they objected that section 97 of the Evidence Act dealing with secondary evidence was not complied with. See page 58 lines 3334; page 59 lines 33-34; page 65 lines 33-34; page 66 line 34 to page 67 line 4 of the records. Thus, the case of Okulade v. Alade (1976) All NLR (Reprint) 56 will not apply as the cross-appellants raised objections to the admissibility of the statements of account at the court below as shown in the above pages of the records. Consequently, it is my view that the cross-appellants are not precluded and should not be precluded from continuing their protest to this court that the documents under reference were inadmissible.

In the light of the foregoing this appeal lacks merit and it is accordingly dismissed. I allow the cross-appeal as it is meritorious. N3.000.00 costs awarded the respondents/cross-appellants.

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Other Citations:(2000)LCN/0755(CA)