Unity Bank Plc V. Samson E. Idemudia (2016)

LawGlobal-Hub Lead Judgment Report

JIMI OLUKAYODE BADA, J.C.A. 

This is an appeal against the Judgment of High Court of Justice Benin in the Edo State of Nigeria in Suit No. B/216/99/ BETWEEN ? SAMSON EGBOMWANRE IDEMUDIA VS UNITY BANK PLC, delivered on the 14th day of October, 2009 wherein part of the claims of Plaintiff/Respondent/Cross Appellant was granted i.e. the claim in paragraph 27(ii) and (iii) of the Plaintiff/Respondent/Cross-Appellant?s further amended statement of claim No. 3 and the claim in Paragraph 27 (i), (iv), (v) ? (xiii) dismissed

Briefly the facts of the case are that by the writ of summons and by paragraph 27 of the amended statement of claim No. 3 the Plaintiff/Respondent/Cross-Appellant claimed against the defendant/Appellant/Cross-Respondent as follows:-

?27 (i) The sum of N17,500.00 fraudulently deducted by the Defendant from the N70,000.00 loan granted to the plaintiff by the National Directorate of Employment(N.D.E) N17,500.00

(ii) Credit balance in account 11540 as at 18/2/92 ?N24,498.28

(iii) Amount fraudulently withdrawn from account 11540 by the

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Defendant on 8/5/96 without the authority/consent of the Plaintiff ? N467,648.58

(iv) Amount lodged into account 11540 on the 28/10/96 …. N15,400.00

SUB TOTAL = N525,046.86

(v) Compound interest at 24 percent per annum on N17,500.00 being the amount fraudulently deducted from the N70,000.00 loan granted to the Plaintiff by the National Directorate of Employment (N.D.E) on the 26/7/86 effect from 26/7/89 to 31/8/92.

(vi) Compound interest on N17,500.00 revised from 24 percent annum to 27 percent per annum by the Defendant with effect from 1st September 1992 to 30th June 1993.

(vii) Compound interest on N17,500.00 revised by the Defendant from 27 percent per annum to 30 percent per annum with effect from 1st July 1993 to the date of judgment.

(viii) Compound interest at 24 percent per annum on N24,498.28K being credit balance in account 11540 as at 18/2/92 with effect from 18/2/92 to 31/8/92.

(ix) Compound interest on N24,498.28K revised from 24 percent per annum to 27 percent per annum by the Defendant with effect from 1st September, 1992 to 30th June 1993.

(x) Compound interest on N24,498.28K revised from

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27 percent per annum to 30 percent per annum by the Defendant with effect from 1st July 1993 to the date on judgment.

(xi) Compound interest at 30 percent per annum on N467,648.58K being the amount fraudulently withdrawn from account 11540 without the consent/authority of the Plaintiff on the 8th May 1996 with effect from 8th May 1996 to the date of judgment.

(xii) Compound interest at 30 percent per annum on N15,400.00 being amount lodged into account 11540 on 28th October 1996 to the date of judgment.

(xiii) The Plaintiff also claims interest at 10 percent per annum sum owed by the Defendant to the Plaintiff on the judgment debt from date of judgment until the whole debt is completely liquidated.?

At the conclusion of hearing, part of the Plaintiff?s claim was upheld and Judgment was entered in favour of the Plaintiff against the Defendant in the sum of N24,498.28 with 10% interest per annum from 18/2/92 and in the sum of N467.648.58 with 10% interest per annum from 8/5/96 until the Judgment sums are liquidated.

?Both the Appellant/Cross-Respondent and the Respondent/Cross-Appellant who were dissatisfied with the Judgment

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of the lower Court, now appealed to this Court.

The learned counsel for the Appellant formulated three issues for the determination of this appeal. The issues are set out as follows:-

ISSUE NO. 1

Whether the learned trial Judge was right to have awarded both pre-judgment and post judgment interest in the circumstances of this case. (Distilled from Ground 2).

ISSUE NO. 2

Whether having regard to the pleadings and evidence, the learned trial Judge was right to hold that the Respondent has only made out a claim for the balance of N24,498.28K and N467,648.58 (Distilled from Grounds 1 and 4).

ISSUE NO. 3

Whether the Respondent successfully proved beyond reasonable doubt the allegation of crime before the learned trial Judge awarded to him the sum of N467,648.58 being the amount said to have been fraudulently withdrawn by the Appellant (Distilled from Ground 3)

On his own part, the learned counsel for the Respondent/Cross-Appellant also formulated three issues for the determination of the Appeal. The issues are reproduced as follows:-

ISSUE NO. 1

Whether having regards to the pleadings and the issues joined at

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the trial Court, the lower Court acted judiciously in awarding pre-judgment interest in respect of the Respondent?s claims granted by the lower Court (Ground 2 of the Main Appeal)

ISSUE NO. 2

Whether on the unchallenged evidence led by the Respondent, was Respondent/Cross Appellant not entitled to the grant of his claims dismissed by the lower Court (grounds 1,2,& 3 of the Cross Appeal)

ISSUE NO. 3

Whether the lower Court properly appraised, evaluated and assigned the appropriate burden of proof on the parties having regards to the issues joined on the pleadings by the parties (Ground 1, 3, & 4 of the Main Appeal)

At the hearing of this appeal, the learned counsel for the Appellant stated that the appeal is against the Judgment of High Court of Justice, Benin City in the Edo State of Nigeria. The Judgment was delivered on 14/10/09. The notice of appeal was filed on 19/10/2009. The amended notice of appeal was filed on 21/11/2012 pursuant to an order of Court made on 22/10/2012. The record of appeal was transmitted out of time on 31/8/2010, but it was deemed as properly transmitted on 17/6/2015. The Appellant?s brief

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of argument was filed on 28/7/15

The Cross-Respondent?s brief was also filed on 26/2/2016

He adopted both the Appellant?s brief of argument and the Cross-Respondent?s brief of argument and relied on them as his argument in urging that the appeal be allowed and the Cross-Appeal be dismissed.

The learned counsel for the Respondent/Cross Appellant referred to the brief filed on 11/8/2015. He adopted and relied on it as his argument in urging that the appeal be dismissed and to allow the Cross-Appeal.

I have carefully examined the issues formulated for the determination of this appeal by counsel for both the Appellant and the Respondent. I am of the view that the issues are similar, but the issues formulated on behalf of the Appellant is considered apt in the determination of the appeal. I will therefore rely on the said issues.

ISSUES FOR THE DETERMINATION OF THE APPEAL

ISSUE NO. 1

Whether THE LEARNED TRIAL Judge was right to have awarded both pre-judgment and post judgment interest in the circumstances of this case (Distilled from Ground 2)

?The learned counsel for the Appellant submitted that the award

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of interest on any case is never done as a matter of course, the law is now clear that a claim for interest must be specifically pleaded and proved. He relied on the case of:-

– HAUSA VS F.B.N. PLC (2000) FWLR Part 29 Page 256 OR (2000) 9 NWLR Part 671 Page 64.

He went further that the Respondent claimed various compound interest which were pleaded in paragraph 27(v) ? (xii) of the statement of claim. See pages 28 ? 29 of the record. The case for post-judgment interest was pleaded in paragraph 27 (xiii) of the statement of claim at page 29 of the record.

It was submitted further on behalf of the Appellant that the learned trial Judge having dismissed the various compound interest claimed and post judgment interest as in paragraph 27 (xiii) of the statement of claim, the learned trial Judge was in error when he awarded to the Respondent 10% on the sum of N24,498.28 from 18/2/92 and 10% interest on the sum of N467,648.58 from 8/5/96 until Judgment sums are liquidated.

?The learned counsel for the Appellant also contended that there is nowhere in Paragraphs 27(ii) and (iii) of the statement of claim where Respondent asked for

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interest. He submitted that the trial Court granted a relief not sought.

He relied on the following cases:-

– C.P.G.O. VS OBIEKWE (1982) S.C. Part II Page 41

– NNAJI VS CHUKWU (1988) 3 NWLR Part 81 Page 184.

– ORDER 40 RULE 7 OF THE HIGH COURT (CIVIL PROCEDURE) RULES 1988 AS APPLICABLE IN EDO STATE.

He finally submitted that the award of pre-judgment interest at the rate of 10% as in this case cannot be done as a matter of course as it is not supported by pleading and evidence. He relied on the following cases:-

– EKEUNIFE VS WHYME (1989) 5 NWLR Part 122 Page 422

– ISOLA VS SOCIETE GENERALE BANK (NIG) LTD (1997) 2 NWLR Part 488 Page 405.

– DANGE SHUNI L.G.C. VS STEPHEN OKONKWO (2008) ALL FWLR Part 425 page 1667.

– VEEPEE INDUSTRIES LTD VS COCOA INDUSTRIES LTD (2008) ALL FWLR Part 425 Page 1667

The learned counsel for the Respondent stated that the Respondent pleaded pre-judgment interest in his pleadings. He referred to Paragraph 27(ix)?(xi) of the further amended statement of claim No. 3.

He referred to the following cases:-

– PETROLEUM (SPECIAL TRUST) FUND VS WESTERN PROJECT CONSORTIUM LTD

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& OTHERS (2007) 14 NWLR Part 1055 Page 478 at Page 500

– FIRST BANK OF NIGERIA PLC VS DR. ABDULKADIR ONIYANGI (2000) 6 NWLR Part 661 Page 497 at 511.

He contended that the fact that the Respondent/Cross Appellant?s evidence was not rebutted by the Appellant?s sole witness gave credence to and corroborated the Respondent/Cross-Appellant?s assertion that the money was withheld from the Respondent for a long time in the guise that the money was applied to defray interest rate accumulated on Respondent/Cross-Appellant?s account. He referred to the evidence of the Appellant/Cross-Respondent?s witness at page 49 line 30 ? 34 pages 50 ? 51 of the record.

He referred to the case of ?YADIS NIGERIA LTD VS GREAT NIGERIA INSURANCE COMPANY LIMITED (2007) 14 NWLR Part 1055 Page 584 at 507.

It was also submitted on behalf of the Respondent/Cross-Appellant that it was a proper exercise of the equitable discretion of the lower Court to have awarded pre-judgment interest in the circumstances of this case as the Appellant/Cross-Respondent had held on the money of the Respondent/Cross-Appellant in respect

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of N24,498.28 (Twenty-four thousand, four hundred and ninety-eight Naira, twenty-eight kobo) only from 18/2/92 and in respect of the sum of N467,648.58 (four hundred and sixty-seven thousand, six hundred and forty-eight Naira, fifty-eight kobo) only from 8/5/95 without any lawful justification.

He relied on the case of: – DIAMOND BANK LTD VS PARTNERSHIP INVESTMENT CO LTD (2009) 18 NWLR Part 1172 Page 67 at 97.

The learned counsel for the Respondent/Cross-Appellant urged this Court to hold that based on issues fought at the lower Court and the findings made, that the lower Court properly exercised its discretion judiciously in the grant of pre-judgment interest rate in respect of the relief granted.

The Respondent/Cross-Appellant?s case at the lower Court was that the Respondent applied for and was granted a National Directorate of Employment N.D.E. loan in the total sum of (N200,000.00) two hundred thousand Naira only. The said loan was granted in two trenches and disbursed through the Appellant/Cross-Respondent?s Bank.

?The Respondent/Cross-Appellant stated that in respect of the first trench being the initial loan of

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(N70,000.00) seventy thousand Naira only, the sum of (N52,500.00) fifty-two thousand, five hundred Naira only was granted to him with an outstanding balance sum of N17,500.00 withheld and wrongfully treated as an over-draft granted the Respondent/Cross Appellant. In respect of the second trench of the loan in the sum of (N130,000.00) One hundred and thirty thousand Naira only, the Respondent/Cross-Appellant contended at the lower Court that the said sum was not granted to him, rather it was allegedly used by the Appellant/Cross Respondent to defray illegal interest rate charges wrongfully charged to the Respondent/Cross Appellant?s Account premised on a purported overdraft granted him.

?The Respondent/Cross-Appellant joined issues on the pleadings with the Appellant/Cross-Respondent in respect of the assignment of wrongful interest rates to his account and the refund or return of his credit balances. The credit balances were (N24,498.28) twenty-four thousand, four hundred and ninety-eight Naira, twenty eight kobo only as at 18th February 1992 and (N467,648.58) four hundred and sixty-seven thousand, six hundred and forty eight Naira, fifty eight kobo

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only, as at 8th May, 1996.

The lower Court entered Judgment in favour of the Respondent/Cross-Appellant in respect of the refund or return of his credit balances referred to above in line with paragraph 27(ii) and (iii) of the further amended statement of claim No. 3.

The complaint of the Appellant/Respondent is that the grant of the refund with pre-interest rate of 10 percent per annum from 18/2/1992 until the Judgment sum is liquidated on the said sum of (N24,498.28) twenty-four thousand, four hundred and ninety-eight Naira, twenty eight kobo and interest rate of 10 percent from 8/5/96 until the Judgment sum is liquidated on the sum of (N467,648.58) four hundred and sixty seven thousand, six hundred and forty-eight Naira, fifty eight kobo only, is unsolicited.

But contrary to the view of the counsel for the Appellant/Cross Respondent, that the refund plus 10% interest were not pleaded, the Respondent/Cross Appellant did plead pre-judgment interest rate in his pleadings. (See Paragraph 27(ix) ? (xi) of the further amended statement of claim No. 3).

?In considering the grant of pre-judgment interest rate in the absence of specific

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pleading or claim for it by the party in whose favour the pre-judgment interest rate is awarded, this Court per Rhodes Vivour JCA (as he then was) held among others that:-

?where interest is claimed as of right, the party must claim the entitlement to it on the writ of summons and plead facts in support in the statement of claim, or where the party omits to claim interest on the writ he would only be entitled to it if facts are pleaded in the statement of claim and evidence led which shows entitlement to it if the Court is satisfied with the evidence given interest so awarded is awarded as of right and if is pre-judgment interest. The Judge must state when it starts to run, usually from the accrual of the cause of action or whenever the Judge deems proper, after examining the evidence in support when actions are brought on commercial matters the Courts usually find that money ought to have been paid sometimes ago. In such cases, it ought to carry interest and that is pre-judgment interest. The time, pre-judgment, when it would start to run depends on evidence. The basis of such an award is that the defendant had kept the Plaintiff out of his money,

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and the defendant has had the use of it for himself, so he ought to compensate the Plaintiff accordingly.

See

? EKWENIFE VS WHYNE W./A LTD (1989) 5 NWLR Part 112 Page 422

– TEXACO OVERSEAS NIGERIA LTD VS PEDMAR (NIG) LTD (2002) 13 NWLR Part 785 Page 526

– HARBUTT?S PLASTICINE LTD VS WAYNE TANK AND PUMP CO LTD (1970) 1 ALL ENG. REPORTS Page 225

– A.B..KEMP LTD & OTHERS VS TOLLAND (1956) 2 UOYDS LIST REPORT Page 681.

See also the following cases:-

– BANK OF NIGERIA PLC VS DR. ABDULKADIR ONIYANGI (2000) 6 NWLR Part 861 Page 497 at 511

– BENSON OKOEBOR & OTHERS VS EYOBO ENGINEERING SERVICE NIG. LTD & OTHERS (1991) 4 NWLR Part 187 Page 553.

– KAYDEE VENTURES LTD VS THE HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY & OTHERS (2010) 7 NWLR Part 1192 Page 171 at 216 – 217

Finally on this issue in the case of DIAMOND BANK LTD VS PARTNERSHIP INVESTMENT CO. LTD (Supra), the Supreme Court per Ogbuagu JSC, held among others that ?

?… it is settled that the High Court has an inherent power to make orders even

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if not sought where such order are ?incidental? to the prayer sought in other words, a Plaintiff may be given such equitable relief as he may be entitled to, even though he has not specifically asked for one ?. also settled, is that it is not in every case that evidence has to be adduced in respect of interest claimed before interest is awarded. That in certain cases, even the failure to claim interest in the writ of summon or statement of claim will not preclude a successful Plaintiff from praying for and being awarded interest after Judgment had been entered for an amount. See ? NIGERIA GENERAL SUPRINTENDENCE CO. LTD VS THE NIGERIA PORTS AUTHORITY (1990) 1 NWLR part 129 Page 741 at 748 (CA). I am also aware that the general rule, is that monetary judgment, attracts appropriate interest even where none is claimed, see the case of:- AUGUSTINE F.I. IBAMA VS SHELL PETROLEUM DEVELOPMENT CO OF NIGERIA LTD (1998) 3 NWLR Part 542 at 493 (CA) per UWAIFOR J.C..A (as he then was).?

Consequent

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upon the foregoing, I am of the view that the lower Court properly exercised its discretion judiciously in the grant of pre-judgment and post-judgment interest rate in this case.

This issue No. 1 is therefore resolved in favour of the Respondent/Cross-Appellant and against the Appellant/Cross-Respondent.

ISSUES NOS 2 AND 3 (Taken together)

?Whether having regard to the pleading and evidence, the learned trial Judge was right to hold that the Respondent has only made out a claim for the balance of N24,498.28 and N467,648.58 (Distilled from Ground 1 and 4)

?Whether the Respondent successfully proved beyond reasonable doubt the allegation of crime before the learned Judge awarded him the sum of N467,648 being the amount said to have been fraudulently withdrawn by the Appellant. (Distilled from Ground 3)?

The learned counsel for the Appellant submitted that the trial Judge failed to properly evaluate the evidence led at the trial before granting the sum of N467,648.58 to the Respondent. He referred to Exhibit ?E? which he stated that no finding was made about it. He also referred to Exhibit ?F1?

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which is a Central Bank report which exonerated the Appellant from any wrong doing.

It was also submitted that there was evidence during trial, especially during cross-examination of the Respondent, that the Respondent took benefit of the 2nd loan of N130,000.00. He submitted that it would be wrong to hold that the 2nd loan of N130,000.00 was immediately taken up by this overdraft.

The learned counsel for the Appellant contended that the evidence of PW1 was of no probative value. He stated that the evidence of PW1 was mainly mere mechanical calculation of interest. He went further that the learned trial Judge failed to evaluate Exhibits ?D?, ?E?, ?F?, and ?F1?.

He submitted that placing the evidence led by the Appellant and documents tendered side by side with that of the Respondent on imaginary scale, that the case of the Appellant ought to have been preferred to that of the Respondent. It was also submitted that where the evidence is clear and the trial Court is adverse and does not flow from the fact led at the trial, the conclusion reached is perverse and the appellate Court is entitled to

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intervene. He relied on the following cases:-

– AJAYI VS ASHIPA (2006) ALL FWLR Part 306 Page 912 at 917 Paragraph E ? F;

– HARUNA VS UNIVERSITY OF AGRIC, MAKURDI (2006) ALL FWLR Part 304 Page 467 Paragraph C ? E.

It was also submitted on behalf of the Appellant that the Respondent was unable to prove beyond reasonable doubt the allegation of crime contained in paragraph 27(iii) of the statement of claim.

The learned counsel for the Appellant submitted that the lower Court was in error when it gave Judgment in favour of the Respondent. He therefore urged that the appeal should be allowed in its entirety and set aside the Judgment of the lower Court and dismiss the Respondent?s claim.

In his response, the learned counsel for the Respondent submitted that the lower Court meticulously appraised and evaluated the evidence led by the parties and made appropriate findings on the issues joined by the parties to the dispute at the lower Court. He went further that the lower Court found as a fact that the Appellant/Cross-Respondent acted outside its authority or right on treating a part of the loan advanced to the

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Respondent/Cross-Appellant as an overdraft. He said that the finding was not appealed against therefore that the finding is correct.

On the issue of Exhibit ?F? he submitted that the lower Court was right to attach no weight or probative value to Exhibit ?F1? (Central Bank Report), because the maker of the Exhibit was not called as a witness, the credibility and veracity of the exhibit was not subjected to cross-examination.

On the issue whether the Respondent successfully proved beyond reasonable doubt any allegation of crime before the trial Judge awarded the Respondent the sum of N467,648.58 being the amount said to have been fraudulently withdrawn by the Appellant, the learned counsel for the Respondent/Cross-Appellant submitted that the commission of crime was not directly in issue in the suit. He went further that the Respondent/Cross-Appellant was not required to prove the motive of the irregular interest rates or irregular deductions. It was immaterial whether it was done fraudulently or mistakenly for the case of the Respondent/Cross-Appellant to succeed.

?The learned counsel for the Respondent/Cross-Appellant

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urged that this issue be resolved in favour of the Respondent/Cross-Appellant.

The issue in controversy between this parties in this case is whether the Appellant/Cross-Respondent acted within its rights to treat a part of the loan advanced by the National Directorate of Employment to the Respondent/Cross-Appellant as an overdraft and charged commercial interest rates therein ranging between 24 percent to 30 percent per annum as against the loan?s interest rate of 9 percent per annum and not whether the Respondent/Cross-Appellant took benefit of the loan. A reference to paragraph 11, 12, 13, 14, 15, 16, 17 and 18 of the further amended statement of claim No. 3 and the evidence of the Respondent/Cross-Appellant at page 45A of the record and paragraphs 19, 20, 21, 22, 23, 24 and 25 of the Appellant/Cross Respondent?s statement of defence at pages 36 ? 37 of the record of appeal and evidence of DW1 at page 49 lines 23 ? 24 of the record of appeal would reveal that the lower Court in resolving the issue in controversy between the parties held that ?

?The onus is on the defendant to prove the authority to treat the

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N17,500.00 as an overdraft which it has failed to do. With this unfortunate development the Plaintiff again applied for a loan of N130,000.00 which was approved by the National Directorate of Employment and disbursed through the defendant. This amount was immediately taken up by the overdraft which has grown and kept growing over time and making the account awry and askew. I find that there was a security for the loan of N35,000.00 Exhibit ?F? which shows there is compound interest of 24% per annum made on 21/9/89. However by Exhibit ?B? the Plaintiff established that the interest was supposed to be 9%.?

The above findings showed that the lower Court found as a fact that the Appellant/Cross-Respondent acted outside its authority or right in treating a part of the loan advanced to the Respondent/Cross-Appellant as an overdraft. There is no ground of appeal against the crucial finding, this shows that the findings is correct.

Furthermore, Appellant/Cross-Respondent made heavy weather about the admission of the Respondent/Cross-Appellant that he received refund on excess charges in the sum of N105,522.14, but it was the

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case of the Appellant/Cross Respondent that the refund was as a result of reversal not a reversal of improper charges. This was pleaded in paragraph 15 of the amended statement of defence.

The lower Court in resolving the issue referred to above held as follows:-

?By Exhibit ?F?, it would appear that the Plaintiff received refund of excess charges of N105,522.14 but I cannot find this reflected in Exhibit ?D? stated by the Defendant in paragraph 15 of its pleading. Exhibit ?C? shows that the interest rate was revised to 27% from 1/9/92?. The Defendant failed to prove that it credited N105,522.14 excess charges as averred in paragraph 15 of its pleading. The defendant did not tender a comprehensive statement of account and/or statement of reversal of interest rate and Plaintiff letter dated 24/4/91.?

The learned counsel for the Appellant/Cross-Respondent referred to

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Exhibit ?F1? i.e. the Central Bank Report which was tendered through the Respondent, he contended that the lower Court failed to evaluate the said Exhibit ?F1?.

In cases of this nature, where a document tendered at the trial commands no probative value, the issue of whether it was properly evaluated or not becomes completely irrelevant.

The lower Court was therefore right to attach no probative value to the said Exhibit ?F1? i.e. the Central Bank report because the maker of the said Exhibit was not called as a witness so as to subject the credibility and veracity of the exhibit to cross-examination.

In ADIKE VS OBIAGERI (2002) 4 NWLR Part 758 Page 537 at 572 ? 573, this Court per Olagunju JCA held thus: –

? ? Exhibit ?R? is a legally admissible document which probative value is open to serious question.

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The evidential value of such a document came for examination in ? DURIMINIYA VS COMMISSIONER OF POLICE (1961) NMLR Page 70 where the Court considered the essence of a trial and the function of a trial Judge. At page 74, the Court expounded that ?a trial is not an investigation and investigation is not the function of the Court?. It explained that the function of a Judge is to decide between the parties on the basis of what has been demonstrated and tested by examination and cross-examination of the witness on the document ?. It is not part of his duty to do cloistered justice by making an enquiry into the case outside Court ? not even by the examination of the documents which were in evidence when the document had not been brought out and exposed to test in Court or were not things that, at least, must have been noticed in Court. The above dictum was approved by the

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Supreme Court in the

? QUEEN VS WILCOX (1961) SCNLR Page 296 and later applied in ? BOMU HOLDING CO LTD VS BOGOCO (1971) 1 ALL NLR Page 324,

– ADESOYE VS GARDNER (1977) NNLR Page 136

and

– ONIBUDO VS AKIBU (1982) 12 NSCC Page 199.

The principles evolved by those decisions underscores the distinction between producing evidence at trial, the contents of which must be brought by oral evidence that is subjected to cross-examination and dumping a document on proceedings without examining the contents in the open Court.?

On the issue of evaluation of exhibits, the lower Court also evaluated Exhibit ?D? on pages 68 lines 21 ? 22, page 69 lines 10 ? 13, page 71 lines 5 ? 7, page 72 lines 16 ? 18.

And Exhibit ?F? was evaluated on page 69 lines 18 ? 22, page 71 lines 21 ? 24, page 72 lines 1 ? 7.

On the issue whether the Respondent successfully proved beyond reasonable doubt, any allegation of crime before the trial Judge awarded to him the sum of N467,648.58 being the amount said to have been fraudulently withdrawn by the Appellant. The commission

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of a crime was not directly in issue in the suit. The essence of the claim of the Respondent/Cross-Appellant against the Appellant/Cross-Respondent was the reversal of interest rates irregularly charged to the Respondent/Cross-Appellant?s account and crediting the account with the said sum constituting the interest rates so deducted and the crediting the account with funds improperly deducted. The Respondent/Cross-Appellant was not required to prove the motive of the irregular interest rates or irregular deductions. It was immaterial whether it was done fraudulently or mistakenly for the case of the Respondent/Cross-Appellant to succeed. In AROWOLO VS IFABIYI (2002) 4 NWLR Part 757 Page 356, the Supreme Court per A.1 Iguh JSC held thus:-

?There can be no doubt that the Court of Appeal was perfectly right when it held that the commission of a crime is not directly in issue in any of the reliefs claimed by the Respondent in the present action. The Respondent?s claims against the Appellants and the 2nd defendant bank have been set out earlier on in this Judgment. A close study thereof discloses in the clearest possible terms that they

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principally concern the return of the Respondent?s various documents together with the declaration in respect of his mortgaged property. None of those items of claims need proof of the commission of any criminal offence to succeed. Without doubt, the preponderance of evidence or the balance of probability constitutes sufficient ground for a verdict in civil cases ? The respondent in the present case could quite easily prove his case, as indeed he did, without alleging or proving fraud notwithstanding the fact that adverbs ?fraudulently? was grammatically used to describe the Appellant?s conduct or motive in the transaction.

I need perhaps add in the above regards that where strong language is employed to describe one?s conduct or motive in a transaction as was done in the present case by the use of the word ?fraudulently?, that does not ipso facto convert the basis of the claim to a crime. See GODWIN

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NWANKWERE VS JOSEPH ADEWUNMI (1967) NMLR Page 45 ? The application of the provisions of Section 138(1) of the Evidence Act only comes into play where the commission of a crime by a party is directly in issue in any proceedings, civil or criminal, and not otherwise.?

In this case under consideration, the commission of a crime was not directly in issue at the lower Court and the burden of proof for the success of the Respondent/Cross-Appellant?s case was not proof beyond reasonable doubt.

In view of the foregoing, my conclusion on this issue is that the lower Court properly appraised and evaluated the evidence of the parties before it and the exhibits tendered and the appropriate standard or burden of proof required to be discharged by the Respondent/Cross-Appellant was proof on the basis of probability or on the preponderance of evidence, not proof beyond reasonable doubt.

?This Issue Nos. 2 and 3 are hereby resolved in favour of the Respondent/Cross-Appellant. With the resolution of the

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three issues in this appeal in favour of the Respondent and against the Appellant, my inevitable conclusion is that this appeal lacks merit and it is hereby dismissed.

In the circumstance, the Judgment of the lower Court in SUIT NO B/216/99/- SAMSON E. IDEMUDIA VS UNITY BANK PLC, delivered on the 14th day of October, 2009 is hereby affirmed.

The Respondent is entitled to cost which is fixed at (N100,000.00) one hundred thousand Naira against the Appellant.

Appeal Dismissed.

CROSS APPEAL

This is a Cross-Appeal against the Judgment of the High Court of Justice, Benin City in the Edo State of Nigeria in SUIT NO ? B/216/99/ – SAMSON E. EDEMUDIA VS UNITY BANK PLC delivered on the 14th day of October, 2009.

This Cross-Appeal is in respect of the refusal of the learned trial Judge to allow the Cross Appellant?s claims in paragraph 27(i), (iv) ? (xii) of the further amended statement of claim No. 3.

The learned counsel for the Respondent/Cross-Appellant formulated a sole issue for the determination of the cross-appeal. The issue is reproduced as follows:-

?Whether on the unchallenged evidence led by

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the Respondent, was Respondent/cross Appellant not entitled to the grant of his claims dismissed by the lower Court (Distilled from Grounds 1,2,& 3 of the Cross Appeal).?

In his own case, the learned counsel for the Cross-Respondent also formulated a sole issue for the determination of the appeal. The said issue is also reproduced as follows:-

?Whether having regard to the pleadings and evidence, the learned trial Judge was right to have dismissed the Respondent/Cross Appellant?s claims as contained in Paragraph 27 (i), (iv) ? (xii) of the further Amended Statement of claim No. 3.”

I have carefully examined the issues formulated for the determination of the Cross-Appeal by counsel for the parties, the issues are similar, but I am of the view that the issue formulated by counsel for the Cross-Appellant is relevant for the determination of the Cross Appeal. I will therefore rely on the said issue.

ISSUE FOR DETERMINATION OF THE CROSS APPEAL

?Whether on the unchallenged evidence led by the Respondent, was Respondent/Cross Appellant not entitled to the grant of his claims dismissed by the lower Court.

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(Distilled from Grounds 1, 2, & 3 of the Cross Appeal)

The learned counsel for the Respondent/Cross Appellant referred to the finding of the lower Court that claims in paragraph 27(i), (ii), (v)?(xii) of the further amended statement of claim No. 3, that the claim for compound interest on the sums cannot be maintained and the claims were dismissed. It was submitted by the learned counsel for the Respondent/Cross-Appellant that the dismissal of the said claim by the lower Court was not a proper exercise of the lower Court?s discretion. He contended that the claim of the Respondent/Cross-Appellant was for (N17,500.00) seventeen thousand five hundred Naira only, and compound interest on the sum at 24% per annum from 26/7/89 to 31/8/92.

He went further that the lower Court did not give any reason why the N17,500.00 claim was disallowed. He urged that the claim be granted.

?It was contended on behalf of the Respondent/Cross Appellant that the said claims were computed as reimbursable interest rates wrongfully assigned to the Respondent/Cross Appellant?s Account and paid in respect of the overdraft erroneously authorized by the

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Appellant/Cross-Respondent.

The learned counsel for the Respondent/Cross-Appellant submitted that the lower Court ought to have acted on the evidence of the expert witness, which was found to be credible and entered Judgment for the Respondent/Cross-Appellant in terms of his claim.

The learned counsel for the Appellant/Cross Respondent in his response submitted that the sum of N17,500.00 claimed in paragraph 27(i) of the amended statement of claim was rightly dismissed. He contended that a proper appraisal and evaluation of the totality of the oral and documentary evidence have revealed that the Respondent/Cross-Appellant took benefit of the sum of N17,500.00 even though his complaint was that it ought not to have been treated as an overdraft with high interest rate.

Concerning the dismissal of the Respondent/Cross-Appellant?s claim for compound interest as stated in paragraph 27(v)?(xii) of the further amended statement of claim No. 3, learned counsel for the Appellant/Cross-Respondent submitted that the lower Court rightly dismissed the claim because it was not proved.

?In this case, paragraph 27 (i), (v), (vi), (vii) of the

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Plaintiff?s further amended statement of claim No. 3 at the lower Court are for

“27 (i) The sum of N17,500.00 fraudulently deducted by the Defendant from the N70,000.00 loan granted to the Plaintiff by the National Directorate of Employment (N.D.E)

(v) Compound interest at 24% per annum on N17,500.00 being the amount fraudulently deducted from the N70,000.00 loan granted to the Plaintiff by the National Directorate of Employment (N.D.E) on the 26/7/86 effect from 26/7/89 to 31/8/92.

(vi) Compound interest on N17,500.00 revised from 24 percent annum to 27 percent per annum by the Defendant with effect from 1st September 1992 to 30th June 1993.

(vii) Compound interest on N17,500.00 revised by the Defendant from 27 percent per annum to 30 percent per annum with effect from 1st July 1993 to the date of judgment.”

The Plaintiff testified in support of the claim and called PW1 Peter Osadolor Ogbebor (an expert who testified among others) on page 43 lines 28 ? 30 of the record of appeal as follows:-

? ….. I see Exhibit A2. From Exhibit A2, N17,500.00 is an overdraft which was wrongly debited to

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Plaintiff?s account as according to him he never received it.?

The Appellant/Cross Respondent did not lead any evidence to challenge or controvert the oral or documentary evidence led and tendered by the said Peter Osadolor Ogbebor. His testimony was not in any way discredited under cross-examination.

On pages 68 line 25 to page 69 lines 1 ? 13, the learned trial Judge held on this issue as follows:-

?The question then is whether the defendant was justified in treating the sum of N17,500.00 as an overdraft. It is easy to find that the Plaintiff did not apply to the defendant for loan or overdraft rather there was a scheme put in place by the NDE of which he was a beneficiary and the defendant was like a conduit pipe disbursing the loan. The Plaintiff called an expert witness PW1 and I find his evidence credible. The Defendant failed to produce the conditions for disbursing the loan which gave it the right to regard the N17,500.00 as an overdraft for working capital. Failure to produce this document is fatal to their position.

The claim of the Plaintiff which is admitted by the defendant is that he was granted NDE

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loan of N70,000.00, there was no provision for overdraft. Exhibit ?D? does not show a credit of N70,000.00 rather of N52,500.00 and when the total amount got exhausted, the overdraft deductions are shown. The onus is on the Defendant to prove an authority to treat the N17,500.00 as an overdraft which it failed to do ……?

And also on page 72, the learned trial Judge held as follows:-

?It is my finding right from the onset the Defendant in withholding the sum of N17,500.00 and regarding same as an overdraft was in error and made Plaintiff?s account go awry. By the defendant admission in paragraphs 24 and 25 of the Statement of defence, the interest rate on the loan was 9% but there were mistakes on the part of the Defendant, which is in paragraphs 24 and 25 of the statement of defence. The interest rate on the loan account was 9% and the admitted mistake resulting in interest rate as high as 30% on what they considered overdraft and 21% on the loan of the (Plaintiff?s) NDE customer account is what in my view forms the basis of the Plaintiff?s

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claim…………?

In view of the foregoing, I am of the view that the learned trial Judge ought to have acted on the uncontradicted evidence of the Cross-Appellant and his witness the PW1.

See the following cases:-

– AMERICAN CYANAMID COMPANY VS VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR Part 171 Page 15 at page 28

– OYIBO IRIRI VS ESERORAYE ERHURHOBARA & ANOTHER (1991) 2 NWLR Part 173 Page 252 at 262.

In KAYDEE VENTURES LTD VS THE HON MINISTER OF THE FEDERAL CAPITAL TERRITORY & OTHERS (2010) 7 NWLR Part 1192 Page 171 at page 216 ? 217, on giving effect to the uncontroverted evidence of an expert witness per MOHAMMED JSC ?

?…… Further, it was the finding of the trial Court that the evidence of PW1 was neither discredited nor challenged or uncontroverted, the trial Court has a duty to act on it where credible. See

– ADA VS THE STATE (2008) 4 SCNJ Page 288 OR (2008) 13 NWLR Part 1103 Page 423,

– ODEBUNMI & ANOTHER VS ABDULLAHI (1997) 2 SCNJ Page 112, OR (1997) 2 NWLR Part 489 Page 526,

– EGBUNIKE & ANOR VS AFRICAN CONTINENTAL BANK (1995) 2 SCNJ Page

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58 OR (1995) 2 NWLR Part 375 Page 34.

I think I should state that the learned trial Judge himself reduced the efficacy of the weight of PW1 evidence, when he stated that although the evidence of PW1 stood uncontroverted and unchallenged being an expert evidence, it should only be persuasive and not conclusive. No authority was cited in support of that proposition. The trite position of the law in relation to expert evidence is that an expert must be called as a witness before he can give evidence is necessary where he can furnish the Court with scientific or other information of technical nature that may be outside the experience and knowledge of the Judge. See ATTORNEY GENERAL OF THE FEDERATION & OTHERS VS ALHAJI ATIKU ABUBAKAR & OTHERS (2007) 4 SCNJ Page 456 OR (2007 10 NWLR Part 1041 Page 1.

That was the position of PW1 before the trial Court. There was no basis for the interference by the Court below on the finding of the trial Court on that expert?s evidence.?

Therefore, in view of the foregoing, Judgment is hereby entered in favour of the Plaintiff/Respondent/Cross-Appellant in terms of his prayers in paragraph 27

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(i), (v), (vi) and (vii) of the further amended statement of claim No. 3.

Accordingly, Judgment is entered in favour of the Plaintiff/Respondent/Cross-Appellant and against the Defendant/Appellant/Cross-Respondent in the sum of N17,500.00 with

(v) Compound interest at 24% percent per annum on the N17,500.00 from 26/7/89 to 31/8/92

(vi) Compound Interest on N17,500.00 revised from 24% percent per annum with effect from 1st September, 1992 to 30th June, 1993 and

(vii) Compound Interest on N17,500.00 revised by the Defendant from 27% percent per annum to 30% percent per annum with effect from 1st July 1999 to the date of Judgment.

Part of the Judgment of the lower Court which dismissed the Plaintiff?s claim in Paragraph 27 (i), (v), (vi) and (vii) is hereby set aside. In its place and for avoidance of doubt, the Judgment of the lower Court in SUIT NO. B/216/99 ? SAMSON EGBOMWANRE IDEMUDIA VS UNITY BANK PLC delivered on the 14th day of October, 2009 in which paragraph 27 (ii) and (iii) of the further amended statement of claim No. 3 succeeded is hereby affirmed.

?The claims in paragraph 27 (iv), (viii) ? (xii) of the

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further amended statement of claim No. 3 remains dismissed.

Cross-Appeal succeeds in part.

Parties are to bear their own costs.

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Other Citations: (2016)LCN/8914(CA)