Universal Trust Bank Nigeria Ltd V. Alhaji Adams Ajagbule & Anor (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

This is an appeal against the decision of Justice E. A. Komolafe of the Ondo State High Court, sitting in Owo, delivered on the 17th day of December, 2003.

The plaintiffs/respondents (hereinafter simply referred to as the respondents) claim against the defendant/appellant are as follows:-

“1. A declaration that any attempt on the part of the defendant to sell by way of public auction or otherwise the 1st plaintiff’s property at No. 31 Mariatun House (formerly No. 40) Asewa Street, Clerks Quarters, Owo, in Ondo State, which the 2nd plaintiff mortgaged with the defendant bank is unconstitutional, illegal, ultra vires, null and void.

A declaration that the 35% interest now being charged per annum by the defendant on the overdraft facility granted to the 2nd plaintiff, plus 12% interest on excess advised credit limit is unconstitutional, illegal, ultra vires, null and void.

N5,000,000.00 (Five million naira) being general damages for the illegal sealing of the plaintiff’s business premises at No. 28A Ondo Road, Akure, in Ondo State.

N20,000.00 (Twenty thousand naira) being loss of earning per day for the illegal sealing of the said plaintiffs business premises at Akure, from the 3rd day of August, 1999, until when the said premises is unlocked by the defendant or until when judgment is delivered.

An order compelling the defendant to produce and make available to the plaintiffs, the plaintiffs current account 1 number 0050045005 and current account 2 number 0050045021, which the plaintiffs opened with the defendant bank at its Akure branch in Ondo State.

Court to give judgment on the plaintiff’s indebtedness to the defendant as disclosed in the said statement of accounts in the said account numbers 005004005 and 0050045021.”

Pleadings were duly filed and exchanged by the parties.

The appellant filed a counter-claim to the respondent’s claim claimed as follows:-

(1) The sum of N2,762,569.37 being the outstanding debt on account number 0050045005 as at 30th July, 1999, payable to the defendant.

(2) The sum of N1,544,118.63 being outstanding debt as at the 5th day of August, 1999, payable to the defendant.

In the instant case, the 1st respondent is the Chairman and Director of the 2nd respondent company. The 2nd is a customer to the appellant bank and maintained two current accounts at the appellant’s branch in Akure, Ondo State.

Sequel to the request of the 2nd respondent for credit facilities sometimes in 1996, the appellant granted an overdraft facility of N1.5 million naira to the 2nd respondent. The 1st respondent’s property situate at No. 31 (formerly No. 40) Mariatun House Isewe Street, Clerk Quarters was mortgaged as a collateral for the facility granted.

In 1997, an overdraft facility of N5 million naira was granted by the appellant to the 2nd respondent. The 1st respondent personally guaranteed the amount granted. In addition, a deed of Hypothecation was entered into between the appellant and the respondents.

The 2nd respondent failed to pay the credit facilities to the appellant in spite of repeated demands. The appellant then took steps to enforce its right under the Deed of Hypothecation of stock of motor-batteries in the custody of the 2nd respondent. On the 3rd day of August, 1999 the appellant came to the business premises of the 2nd respondent at No. 28A, Ondo Road, Akure, in Ondo State and insisted on taking over the management and control of the premises.

When the respondents refused to the taking over of their business premises, the appellant sealed the said premises and stationed both policemen and security men from their office to guard the premises for 24 hours. When all entreaties to the appellant to reopen the premises failed, the respondents on the 11th day of August, 1999, instituted an action against the appellant at the Owo High Court whereby they claimed the reliefs set out in their statement of claim dated the 10th day of August, 1999.

The appellant joined issues with the respondents by its statement of defence and counter-claim dated 28th day of September, 1999.

The respondents also filed a reply to the defendant’s statement of defence dated the 29th of September, 1999.

The matter proceeded to trial. The respondents called three witnesses while two witnesses gave evidence for the appellant. 22 exhibits were tendered during the trial. On the 17th day of December, 2003, the court delivered judgment in the suit in favour of the respondents. The court granted the declaratory reliefs sought by the respondents and awarded to-the respondents general damages in the sum of N5,000,000.00k (Five million naira) and special damages in the sum of N1,580,000.00k (One million, five hundred and eighty thousand naira) against the appellant for the sealing of the premises of the 2nd respondent. The appellants counter-claim was dismissed.

This is what the trial Judge said while giving judgment to the respondents:-

“1. A declaration that any attempt on the part of the defendants to sell by way of public auction or otherwise, the 1st plaintiff’s property at No. 31, Mariatun House (formerly No. 40) Asewa Street, Clerks Quarters, Owo, in Ondo State, which the 2nd plaintiff mortgaged with, the defendant bank is unconstitutional, illegal, ultra vires, null and void.

A declaration that the 35% interest now being charged per annum by the defendant on the overdraft facility granted to the 2nd plaintiff plus 12% interest on excess advised credit limit is unconstitutional, illegal, ultra vires, null and void.

N5,000,000.00 (five million naira) being general damages for the illegal sealing of the plaintiffs business premises at No. 28A Ondo Road, Akure in Ondo State.

N1,580,000.00 (One million, five hundred and eighty thousand naira only) being total loss of earning at the rate of N20,000.00 (Twenty thousand naira) per day multiplied by 78 days (being the number of days for which the plaintiff business premises remained illegally.”

The appellant being dissatisfied with the decision of the court appealed against the said judgment by a notice of appeal dated and filed on the 11th day of February, 2004, upon seven ground of appeal.

The grounds of appeal without their particulars are set out below:-

The learned trial Judge erred in law when he said:-

“I hereby hold in agreement with counsel for the plaintiffs that there was in existence at all material time Central Bank Guideline between 1996 and 1999, and the rate of interest then was 21% (page 9 of the judgment).

The learned trial Judge erred in law when he held:-

“In my view, the two exhibits A4 and A5 constitute offers capable of acceptance … Mere silence of the plaintiffs as to the increase in rate of interest communicated to the plaintiffs via exhibits A4 and A5 cannot be interpreted as acceptance because the plaintiffs did not protest” (page 9 of the judgment).

The learned trial Judge erred in law, when he held that the variation of interest rate from 21% to 33% and 35% is arbitrary and unconstitutional and that the prevailing maximum rate of interest in respect of credit facilities granted by the appellant to the respondents is 21% between 1996 and 1999.

The learned trial Judge erred in law, when he held that the appellant was responsible for the sealing of the respondents business premises on 3/8/99.

The learned trial Judge erred in law, when he awarded the sum of N1,580,000.00 (One million, five hundred and eighty thousand naira in favour of the respondents as special damages.

The learned trial Judge erred in law, when he awarded the sum of N5,000,000.00 (Five million naira) as general damages in favour of the respondent.

The learned trial Judge erred in law, when he held that the appellant has failed to prove its counter-claim.

In compliance with the rules of this court, briefs of arguments were exchanged by respective counsel. In the appellant’s brief settled by Olatunde Adejuyigbe, Esq., dated and filed on the 28th day of September, 2004, seven (7) issues were distilled from the 7 grounds filed as calling for determination in the appeal. The issues read as follows:-

(i) Whether the learned trial Judge was right, in his finding as to the existence and contents of Central Bank Guideline between 1996 and 1999, when the said guideline was not tendered in evidence by the respondents. (Ground 1).

(ii) Whether the learned trial Judge was right, when he held that exhibits A4 and A5 constitute offers capable of acceptance and which cannot be effective without an acceptance by the respondents. (Ground 2).

(iii) Whether the appellant is entitled to increase the interest rate on the facilities granted to the 2nd respondent above 21% per annum. (Ground 3).

(iv) Whether the learned trial Judge was right in relying on the evidence of PW3 for his finding that the appellant was responsible for the sealing of the 2nd respondent’s business premises on 3/8/99. (Ground 4).

(v) Whether on the pleadings and evidence before the court the learned trial Judge was right when he awarded the sum of N1,580,000.00 (One million, five hundred and eighty thousand naira) as special damages to the respondents. (Ground 5).

(vi) Whether the sum of N5,000,000.00 (Five million naira) awarded by the learned trial Judge as general damages in favour of the respondents is proper and justifiable. (Ground 6).

(vii) Whether the learned trial Judge was right when he held that the appellant has failed to prove its counter-claim.

(Ground 7)

On the other hand, in the respondent’sbrief settled by Tokunbo Aderuboye, Esq., filed on the 9/11/2004, he distilled five issues as calling for consideration from the grounds of appeal set out in the appellants notice of appeal. The issues formulated are as follows:-

(1) Whether between 1996 and 1999, there were Central Bank Guidelines pegging the rate of interest in respect of overdraft facilities at 21%.

(2) Whether the appellant illegally sealed up the respondent’s business premises.

(3) Whether the respondents were entitled to special and general damages awarded to them.

(4) Whether the appellant’scounter-claim is properly before the court and or whether same has been proved as required by law.

(5) Whether the trial Judge’s findings of fact can be said to be perverse.

At the hearing of appeal, learned Counsel for the appellant relied and adopted the appellant’s brief of argument dated and filed on the 28/9/2004 and the appellants reply brief dated and filed on the 16/2/2005 and urged us to allow the appeal. The learned respondent’s Counsel adopted and relied on their brief dated 8/11/2004 and urged us to dismiss the appeal.

In the determination of this appeal, I will adopt the issues as formulated by the appellant as it is more apt and encapsulates all the issues raised in the appeal.

It is observed by the learned respondent’s Counsel in his brief of argument that the seven (7) issues raised for determination by the appellant from the seven grounds of appeal filed by him shows that the appellant merely argued the grounds of appeal rather than arguing the issues for determination. Learned Counsel cited the cases of Zaccheus Abiodun Koya v. United Bank for Africa Ltd. (1997) 1 NWLR (Pt. 481) 251, (1997) 46 LRCN 1; Abubakar v. The Government of Taraba State & Anor. (1997) 51 LRCN 1479 at 1505, that in arguing appeals counsel are to rely on the issues formulated rather than the grounds of appeal filed. That it is on the basis of the issues that the parties found their contention.

The desirability of formulating issues are so that the material errors sought to be corrected in a judgment on appeal are identified most time, and quite advisedly in appropriate cases from a number of grounds of appeal in which complaints have been laid in respect of the judgment. The court and counsel will then be better able to focus on the resolution of those issues not by taking grounds of appeal one after the other. That is not helpful. It is the issues that should be the centre of attention and not the grounds in highlighting the complaints brought before the court in the grounds of appeal under such issues. Generally, grounds of appeal highlight the error being sought to be corrected in the judgment. As said it is not helpful to argue grounds, but issues that act as a mirror reflecting the grounds of appeal. See Busari v. Oseni (1992) 4 NWLR (Pt.237) 557However, where such is the case, the argument cannot be disregarded by the court.

The appellant also in his reply brief attacked the respondent’s issues 4 and 5 formulated by the respondent as being incompetent. On issue 4, it is argued that the learned trial Judge having specifically found that the counter-claim is competent and properly before the court, the respondent cannot challenged the competence of the counter-claim as to whether it is properly before the court in the absence of any cross-appeal by the respondent on the issue. That it is not also an issue that arise from the appellant grounds of appeal, citing the following case, Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) 298 at 332; Obasanjo v. Buhari (2003) 17 NWLR (Pt.850) 510 at 554; Sha (Jnr) v. Kwan (2000) 8 NWLR (Pt.670) 685 at 700.

That issue 5 as formulated by the respondents is also incompetent as it does not fall within the scope of or related to the ground of appeal filed by the appellant citing Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 1137 at 148; Ojegbe v. Omotsone (1996) 6 NWLR (Pt.608) 591 at 598. We were urged to strike it out.

It is the law that a respondent cannot formulate issues outside the grounds of appeal filed by the appellant unless he files a cross-appeal or a respondent’s notice. The Supreme Court in Idika v. Irisi 988) 2 NWLR (Pt.78) 563 said that a respondent has no business, unless cross appeals or at least serves a respondent’s notice framing issues outside the grounds of appeal filed by the appellant. See also, Eze vs. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51) 506. A Respondent who did not cross-appeal can only adopt the issues as formulated in the appellant’s brief based on the grounds of appeal filed by the appellant or at best recast them by giving them a slant favourable to the respondents point of view but without departing from the complaint raised by the grounds of appeals. See Atanda v. Ajayi (1989) 3 NWLR (Pt. 111) 511. Any issue not in consonance with the grounds of appeal filed does not fall for determination.

In respect of Respondent’s issue 4, the issue whether the appellant’s counter-claim is properly before the court or not is not the issue decided by the lower court and not raised by the appellant’s grounds of appeal. The issue posed on these grounds can only be raised by the respondent subject to a cross-appeal being filed in view of the finding of the learned trial Judge that the counter-claim is competent and properly before the court. If a finding or decision of a trial court, whether on an issue of fact or law is not challenged in an appeal to the Court of Appeal, such a finding or decision, rightly or wrongly must not be disturbed for the purpose of the appeal in question. See Oshodi v. Eyifunmi (supra).

I agree with the learned Counsel for the appellant that the respondent who did not lodge any cross-appeal against the decision of the learned trial Judge as to the competence of the counter-claim cannot attack the decision of the lower court in their brief or invite this court to adjudicate on same.

In the absence of a cross-appeal, the respondents have no business to challenge the decision of the trial court in this court.

The courts have stated a number of times that the traditional role of a respondent in appeal, is to defend the judgment or ruling appealed against. If however, a respondent wishes to depart from this role by attacking or challenging the judgment or ruling in anyway, he or she is enjoined to file a cross-appeal since the main purpose of a cross-appeal is to correct an error which is in the main appeal. See Obasanjo v. Buhari (2003) 17 NWLR (Pt.850) 510 at 554 per Kalgo, JSC. For this reason the objection by the appellant is upheld.

On the respondent’s issue five formulated for determination, I also agree with the learned Counsel for the appellant that, it is incompetent as it does not fall within the scope of or relate to grounds of appeal filed by the appellant.

I think all that it means is that based on the pleadings of the parties and the evidence adduced, whether the finding of the learned trial Judge can be said to be perverse. Where an issue is not covered by any of the grounds of appeal filed, it is incompetent and will be struck out. See Sha (Jnr) v. Kwan (supra).

An issue for determination in appeal distilled from the grounds of appeal. An issue not tied to any of the grounds of appeal is improper and will not be countenanced. In the instant case, the respondents issue five does not arise from any of the appellant’s grounds of appeal. See Mkpedem v. Udo (2000) 9 NWLR (Pt.673) 631.

It is a common ground in the instant appeal that, the respondent did not cross-appeal and to that extent he cannot postulate an issue for determination which is not predicated on an existing ground of appeal. Such a postulation is misconceived and therefore incompetent. It is therefore imperative for counsel formulating issues for determination to keep in mind that any issue not in consonance with the grounds of appeal does not fall for determination. See Ebo v. Nigerian Television Authority (1996) 4 NWLR (Pt.442) 314; Eze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt.51) 506.

It is therefore my view as rightly submitted by the appellant’s counsel that the respondents issue five for determination is incompetent and it is hereby struck out.

Having disposed of the preliminary issues in this appeal, I will now turn to the appeal proper.

Issue one is whether the learned trial Judge was right in his finding as to the existence and contents of Central Bank Guidelines, between 1996 and 1999, when the said guideline was not tendered in evidence by the respondent.

Learned Counsel for the appellant referred to paragraphs 23 and 25 of the respondent’s statement of claim, wherein he pleaded the Central Bank Guidelines and contended that the appellant acted in violation of the guideline. He also referred to paragraph 5 of the respondent’s statement of defence to the appellant’s counter-claim, wherein it was stated that they place reliance on the Central Bank Guideline. It is submitted that by paragraph 11 of the statement of defence and counter-claim, the appellant averred that there is no Central Bank Lending Policy Guideline regulating interest rates on loan and overdraft facilities and/or limiting same to a maximum amount of 21% per annum. It is submitted that it is trite law that he asserts must prove referring to the case of Ibrahim v. Ojomo 2004) 4 NWLR (Pt.862) 89 at 110, and submitted that the onus is on respondents to proffer legally admissible evidence as to the existence and contents of the Central Bank Guideline. Learned Counsel referred to the evidence of PW1 under cross-examination, where he stated that he has seen the Central Bank of Nigeria Guidelines before and the evidence of PW2, also under cross-examination where he also admitted seeing the Central Bank of Nigeria Guidelines for the period 1996 to 1999 and submitted that the respondents who have the onus of proving the existence and contents of the document have failed to tender it in evidence. It is submitted that a party who seek to rely on a document which is relevant to an issue before the court must produce the document citing F.A.T.E. Ltd. v. Partnership Investment Co. Ltd. (2003) 18 (Pt.851) 35 at 74; Bamgbose v. Jiaza (1991) 3 NWLR (Pt.177) 64 at 74; Kara v. Wassah (2001) 18 NWLR (Pt.744) 117 at 138. It is further submitted that the failure of the respondents to tender the Central Bank of Nigeria Guidelines as exhibit precludes the court from relying on it as the court is not permitted to engage in speculation as to the existence and content of a document not produced before it, referring to the cases F.M.F. Ltd. v. Ekpo (2004) 2 NWLR (Pt.856) 100 at 120; Gbajor v. Ogunburegui (1961) All NLR 853; Mercantile Bank of Nigeria PIc. v. V. Nwobodo (2000) 3 NWLR (Pt.648) 297 at 319.

It is also submitted that the learned trial Judge fell into grave error, when he made findings as to the existence and contents of a Central Bank of Nigeria Guideline between 1996 and 1999, which was not tendered in evidence by the respondents. It is contended that such finding is based on speculation and imagination citing Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt.620) 552 at 561. It is further submitted that it was wrong for the learned trial Judge to base his finding on the submissions of the respondent’s counsel regarding the Central Bank of Nigeria Guideline when the document itself was not produced in court citing Chukujekwu v. Olalere (1992) 2NWLR (Pt.221) 86 at 93; Ishola v. Ajiboye (1998) 1 NWLR (Pt.532) 71 at 81; Aro v. Aro (2000) 3 NWLR (Pt.649) 443 at 457.

It is submitted that, the finding by a trial Judge is perverse citing Iwuoha v. NIPOST Ltd. (2003) 8 NWLR (Pt.822) 308 at 334. We were urged to set aside the perverse finding of the trial court citing Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197 at 227. We were urged to resolve this issue in favour of the appellant and set aside the perverse finding of the learned trial Judge as to the existence and contents of Central Bank of Nigeria Guideline between 1996 and 1999.

In his response, learned respondent Counsel submitted that there were Central Bank Guidelines regulating interest rate at 21% between 1996 and 1999. Learned Counsel referred to overdraft facilities granting the 2nd respondent in 1996 and 1999 by the appellant exhibits A3 and D1 that in both letters of offer, i.e. exhibits A3 and D1 interest rate was put at 21%. Learned Counsel referred to the Deed of Hypothecation exhibit A2, wherein it was clearly stated therein on page 1 as follows:-

“UNIVERSAL TRUST BANK OF NIGERIA LIMITED MAXIMUM LENDING RATE OF 21% PER ANNUM.”

Learned Counsel referred to the definition of the word ‘Maximum’ from Collins English dictionary as, meaning, the greatest possible amount, degree, highest value of a the variable quantity. It is the view of respondent counsel that having adduced evidence to the satisfaction of the court, as required by sections 136 and 137(1) of the Evidence Act and tendered exhibits D1, A2 and A3 in support, the burden of proof now shifted to the appellant under sections 137(2) and 138 of the Evidence Act to adduce evidence in rebuttal. It is also his view that the position of the respondent is further strengthened by the evidence of DW2, who contrary to the appellant’s pleadings and evidence admitted that there was a Central Bank Lending Policy. He cited and relied on the following cases:-

(1) Chief Victor Woluchem & Others vs. Chief Simon Gudi & Others (1981) 5 SC 21; and Niger Construction Ltd. v. Chief A. A. Okungbemi (1987) 11-12 SCNJ 133 at 135, (1987) 4 NWLR (Pt. 67) 787.

It is further submitted that the issue at stake is whether or not there was a Central Bank Lending Policy. That while the respondents said there was, the appellant said there was none but that DW2 said there was such a policy. It is the view of counsel that what is admitted needs no further proof. That since DW2 conceded to the existence of Central Bank Lending Policy, it is of no use or relevance for the respondents to tender any document in proof of same citing Steven Omo Ebueku v. Sunmola Amola (1988) 3 SCNJ (Pt.1) 207 at 209, (1988) 2 NWLR (Pt. 75) 128. He also cited the following case on the interpretation of statute. G.M.B.U. v. Rivway Lines Ltd. (1998) LRCN 3485 at 3488, and General Ishaya Bamayi v. Attorney-General of the Federation & Others (2001) 90 LRCN 2738 at 2744. It is the view of the learned Counsel that since there since there is no appeal against the finding of the trial court that it has power to intervene, the appellant is deemed to have accepted the correctness the finding citing Zaccheus Abiodun v. United Bank for Africa Ltd. (1997) 46 LRCN 1 at 14. That the interpretation of exhibits A4 and A5 by the trial court is perfect and in order and that even it is otherwise the said finding is not perverse because the lower court relied on other documents before it, before reaching the conclusion that the maximum rate of interest is 21%. Learned Counsel urged us to resolve this issue against the appellant.

It is a principle of our law that he who asserts must prove. Section 136 of the Evidence Act, 1990, provides:-

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

Section 137(1) of the Act further provides:-

“In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given, if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”

See also Ibrahim v. Ojomo (supra); Okechukwu v. Ndah (1967) NMLR 368; N.B.N. Ltd. v. Opeola (1994) 1 NWLR (Pt.319) 126; Chukujekwu v. Olarele (1992) 2 NWLR (Pt.221) 80; F.M.F. Ltd. v. Ekpo (2004) 2 NWLR (Pt.856) 100.

The issue now is whether or not there was a Central Bank of Nigeria Lending Policy between the period 1996 and 1999, that pegged the interest rate at 21% per annum as argued by the respondents?

It is the case of respondents that there was a Central Bank Lending Policy, while the appellant said there was none and, whether the learned trial Judge’s finding that there was such a policy when same has not been produced before it is perverse. It is settled law that a party who seeks to rely on a document which is relevant to an issue before the court must produce the document before the court for the court to examine, assess and act on same. Documentary evidence where this is relevant, ought to be produced and tendered as they speak for themselves as against the ipse dixit of a witness in respect of such transactions which may not be readily accepted by the court. See F.A.T.B. Ltd. v. Partnership Investment Company Ltd. (supra).

Where a party leads evidence as to the existence of a document on a particular issue before the court, the best evidence is the production of the document, unless it is proved to the satisfaction of the court that the document itself cannot be produced. In the instant case, the respondents as rightly submitted by the appellant’s counsel, did not tender the Central Bank of Nigeria Guidelines as an exhibit and led no evidence that the Central Bank of Nigeria Guidelines cannot be produced. What then is the basis of the lower court’s finding based on the Central Bank of Nigeria Guidelines? Could such a finding by the lower court in the absence of the Central Bank of Nigeria Guidelines placed before it, be said to be perverse as contended by the appellant’s counsel? It is my humble view that to answer the question, one must consider the pleadings of the parties and the evidence led thereon in proof of the claims before the court and the findings of the learned trial Judge.

In coming to the conclusion that there is such a policy, the learned trial Court relied on the evidence of DW2, when he testified at page 53 lines 30-34 of the record that, “The loans advanced to the plaintiffs are interest yielding loans. The Bank dictates the rate of interest based on cost of funds and prevailing regulation by the Central Bank of Nigeria”. This witness stated further regarding the existence of the Central Bank Lending Policy on re-examination at page 54 lines 6-12 of the record of appeal, that, “The cost of funds dictates the rate of interest of loan facilities and credit monitory guidelines issued by the Central Bank of Nigeria from time to time.

The learned trial Judge found that the said evidence coming from the appellant’s witness is evidence against interest and found same to be admissible against the appellant that the said evidence amounts to an admission as to the existence of Central Bank Regulations citing Kamalu v. Kamalu (1997) 5 NWLR (Pt.505) 321 at 336. The learned trial Judge concluded as follows:-

“Since the maximum rate of interest payable on loan, overdraft and credit facilities is dictated by costs of funds and the Central Bank Guidelines issued from time to time, I hereby hold in agreement with the counsel for the plaintiffs that there was in existence at all material time Central Bank Guidelines, between 1996 and 1999, and the rate of interest then was 21%.”

It is my humble view that this finding by the learned trial Judge not be said to be perverse considering the circumstances of this case and same cannot be said to be speculative. It is now settled that court cannot decide issues on speculation no matter how close what it relies on may seem to be to the facts. See Ivienabor v. Bazuaye (supra); Overseas Construction Co. Ltd. v. Greek Enterprises Ltd. (1985) 3 NWLR (Pt.13) 406. In the same vein, the court does not speculate on the contents of a document not produced before it. See Gbjor v. Ogunbure Guid (supra). However, in its facts finding mission a court is allowed to infer the existence or otherwise of certain things which is a reasonable deduction from facts whereas speculation is not.In the instant case, the finding by the learned trial Judge could not have been otherwise even without the Central Bank Guidelines placed before it to find that the interest rate chargeable from the overdraft facilities granted to the respondents is 21%. This is so in view of exhibits A2 the Deed of Hypothecation of goods dated the 5/2/98 to secure the overdraft facility of N5 million naira dated 18/11/96 and exhibit D1 offer letter of renewal of credit facility of N1.5 million naira dated 9/9/97, which documents constitute the agreement of the overdraft facilities granted by the appellant to the respondents. In exhibits A2, A3 and D1, the maximum rate of interest is 21%. In view of the above, it is my considered view that the finding of the learned trial Judge as to the existence of a Central Bank Guideline that pegged interest rate at 21% between the 1996 and 1999 is neither perverse nor speculative in view of exhibits A2, A3 and D1, and I so find. This issue is resolved against the appellant.

Issue two is whether the learned trial Judge was right when he held that exhibits A4 and A5 constitute offers capable of acceptance and which cannot be effective without an acceptance by the respondents.

It is the view of the appellant’s counsel that the general rule of interpretation is that where the words of a document are unambiguous, the operative words should be given their simple and ordinary grammatical meaning citing: U.B.N. v. Ozigi (1994) 3 NWLR (Pt.333) 385 at 403 and Inyang v. Ebong (2002) 2 NWLR (Pt.751) 284 at 329. It is also the view of the learned Counsel that there is nothing in exhibits A4 and A5 which suggest or indicate that the review of interest rates by the appellant is expressed as an offer which is capable of an acceptance by the 2nd respondent. It is submitted that what the appellant by exhibits A4 and A5 did was to convey to the 2nd respondent its decision to review upwards the interest rate applicable to the overdraft facility of the 2nd respondent and the effective date of the new interest rates. It is the view of the learned Counsel that exhibits A4 and A5 which are unambiguous had been given their simple and ordinary grammatical meaning the learned trial Judge would not have come to the strange and erroneous conclusion that the two exhibits constitute an offer capable of acceptance and that the respondent must first convey its acceptance before the reviewed interest rates can be effective. It is submitted that the finding of the lower court in respect of exhibits A4 and A5 is perverse and unjustifiable as it is not supported by the contents of the said exhibits. Learned Counsel referred to the following cases, Odiba v. Azege (1998) 9 NWLR (Pt.566) 370; Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.836) 136. We were urged to set aside the perverse finding and resolved the issue in favour of the appellant.

However, it is the view of the respondent’s Counsel that the interpretation of exhibits A4 and A5 by the lower court is perfect and in order. It is his view that, assuming without conceding that this court hold that the contents of the two exhibits were wrongly interpreted, it is submitted that the interpretation or findings cannot be said to be perverse because the lower court relied on other documents before reaching the conclusion that the maximum rate of interest is 21%.

Exhibits A4 and A5 are letters dated 11th May, 1999, and July 23, 1999, written by the appellant to the 1st respondent, the Managing Director of the 2nd respondent with caption “Review of Interest Rates”. By exhibits A4 and A5 the appellant notified the 2nd respondent that the interest rate applicable to the overdraft facility has been reviewed upward. Exhibits A4 and A5 provide inter alia:-

“Exhibit A4

“Universal Trust Bank of Nigeria Limited

Akure

NICON House

211, Arakale Street,

Akure, Ondo State.

Tel: 034-231720, 230095, 232094

Fax: 034-242094

RC 64591

11th May, 1999

The Managing Director

Adamaco Nigeria Ltd.

28A Ondo road,

Akure.

Attention: Alh Adams Ajagbule

Dear Sir,

Review of interest rates

In view of the present volatility in the money market rates occasioned by the incessant debit of banks by the CBN for mandatory special treasury bills purchased without notice, which has resulted in the overall tight liquidity in the banking system and its attendant upward movement in money market rates, we are constrained to review our interest rates upward.

Accordingly, with effect from 14th May, 1999, the interest rate applicable to your overdraft facility has been reviewed upward to 33% per annum. However, excess above the advised credit limit will attract additional interest charges at 12% per annum.

The advised rates are subject to change from time to time in response to developments in the money market. Thank you for your continued patronage and for believing in us.

Yours faithfully,

For: Universal Trust Bank Plc.

(SGD) (SGD)

Kola Omomowo P. A. O. Olalemi

Asst. Officer (Credit/Mktg) Branch Manager.”

“Exhibit A5

“Universal Trust Bank of Nigeria Limited

Akure

NICON House

211, Arakale Street,

Akure, Ondo State.

Tel: 034-231720, 230095,232094

Fax: 034-242094

RC 64591

July 23, 1999

AKB/26079902/WO/PAO.eas

The Managing Director

Adamaco Nigeria Limited

28A Ondo road,

Akure.

Attention: Alh Adams Ajagbule

Dear Sir,

Review of interest rates

The recent changes in the money market have resulted in an upward review of rates.

In light of this situation, we are constrained to review our interest rates upwards on all borrowing facilities with effect from 26/07/99.

We hereby advise that interest rate applicable to your overdraft facility has been reviewed upwards to 35% per annum.

However, excess above the advised credit limit in addition to expired and outstanding credit facility shall attract additional interest charges on 12% per annum.

The advised rates are subject to changes from time to time in response to developments in the money market and would be reviewed downwards as soon as the market situation permits.

Thank you for your continued patronage and for believing in us.

Yours faithfully,

For: Universal Trust Bank Plc.

(SGD.) (SGD.)

Wole Oni P. A.O. Olalemi

Creditl Mktg Officer Branch Manager.”

The question is, whether exhibits A4 and A5 are offers capable of acceptance which cannot be effective without acceptance by the respondents.

It is my considered view that, to appreciate the fact whether exhibits A4 and A5 are offers capable of acceptance, it is necessary to examine the documents constituting the agreement between the parties whether the agreement empowers the appellant to vary the interest rate chargeable on the overdraft facility from time to time such that it can unilaterally adjust the rate of interest charged from the overdraft facilities.

A careful perusal of exhibit A2 Deed of Hypothecation of Goods, exhibit A3 offer letter dated the 18/11/96 and exhibit D1, offer letter dated 9/9/97, which in my view constitute agreement in respect of the overdraft credit facilities the appellant granted the respondents is necessary. In exhibits A2, A3 and D1, all fixed the maximum lending interest rate by the appellant at 21%. There is no clause contained in all the above mentioned exhibits that empowers the appellant to vary the interest chargeable on the loan or overdraft credit facilities from time to time such that it can unilaterally adjust the rate of interest charged on such overdraft facility without notice to the respondents. See Bank of the North Limited v. Idirisu (2000) 3 NWLR (Pt.649) 373.

In the absence of such a clause contained in the contract agreements, what then is the legal effect of exhibits A4 and A5? Are they offers capable of acceptance or are they automatically binding on the respondents? In the instant case, where the terms and conditions as to the interest rate payable are specifically stated in the documents constituting the agreement between the parties, any variation of the interest rate must be signified by the respondent’s in writing. The general rule is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. This is also provided for in section 131(1) of the Evidence Act. The appellants cannot therefore unilaterally adjust the rate of interest charged. See Bank of the North Limited v. Idirisu (2000) 3 NWLR (Pt.649) 373; UBN Limited v. Ozigi (1994) 3 NWLR (Pt.333) 385; Union Bank v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt.361) 150.

Exhibits A4 and A5 are therefore offers capable of acceptance by the respondents. Acceptance is an unconditional assent communicated by the offeree to the offeror. It is therefore my humble view that, the finding of the learned trial Judge that exhibits A4 and A5 constitute offers capable of acceptance is neither erroneous nor perverse. I agree with the learned trial Judge that the variation from the agreed interest rate of 21% to 33% and 35% on 11th May, 1999 and 23rd July, 1999, within a period of two months and eleven days is not only arbitrary, but also unconstitutional as the increases are out of time with the agreed rate of interest as contained in exhibits A2, A3 and D1. This issue is also resolved against the appellant.

Issue three is whether the appellant is entitled to increase the interest rate on the facilities granted the 2nd respondent above 21% per annum.

It is the view of the learned appellant’s counsel that the terms of the overdraft facilities granted by the appellant to the 2nd respondent as contained in exhibits A3 and D1 are duly accepted by the 2nd respondent and therefore, the parties are bound by the terms and conditions contained in exhibits A3 and D1 and that the interest rate stated as UTB’s maximum lending rate “currently 21%” clearly underscores the element of variation of the lending interest rate of the appellant. It is submitted that the insertion of the phrase “currently 21%” is beyond argument that its maximum lending interest rate is not fixed at 21% but subject to variation from time to time. It is also submitted that the tripartite deed of legal mortgage exhibit A1 duly executed by the appellant and the respondents equally empowers the appellant to vary the lending interest rate on the overdraft facilities granted to the respondents. Learned counsel referred to clause 2 of exhibit A1 and submitted that from the contents of exhibits A1, A3 and D1, the review of lending interest rate by the appellant is clearly within the contemplation of the appellant and the respondents and the appellant is therefore entitled to review the interest rate upwards.

Citing UBN Limited v. Ozigi (1994) 4 NWLR (Pt.333) 385 U.B.N Limited v. Sax (Nig.) Limited (1994) 8 NWLR (Pt.361) 150; Bank of the North Limited v. Idirisu (2000) 3 NWLR (Pt.649) 373. It is therefore submitted that it is not permissible for a court of law to make any finding outside the evidence placed before it by the parties citing Idonidoye-Obu v. NNPC. (2003) 2 NWLR (Pt.805) 589 at 650. We were urged to resolve the issue in favour of the appellant.

In dealing with this issue, it is relevant to consider exhibits A1, A3 and D1, documents constituting the agreement between the parties. Exhibits A3 and D1 provides inter alia as follows:-

“Exhibit A3

Universal Trust Bank of Nigeria Limited Akure branch

NICON House

221, Arable Street,

P.M.B. 655 Akure

Akure, Ondo State.

Tel: 034-231720, 230095

Fax: 034-242094

RC 64591

18th November, 1996

AKB/1124885/96/MAA/AOB.fba

The Managing Director

Adamaco Nigeria Limited

28A Ondo Road,

Akure.

Attention: Alh Adams Ajagbule

Dear Sir,

Offer letter

We are pleased to advise that Universal Trust Bank of (Nig.) Ltd. has approved renewal of our line of credit for your company under the following terms and conditions.

Facility A

Amount: N750,000 (Seven hundred and fifty thousand naira only)

Providing for: Overdraft on current account

Purpose: Working capital financing

Pricing: Interest rate: UTB’s max.

lending rate currently 21% p.a.

COT: 3 per mile

Repayment: From operational cash flow

Tenor:90 days

(1) Legal mortgage on a landed property of Alh. Adams Ajagbule situated at No. 40 Clerks Qtrs, Ondo State.

(2) Hypothecation of stock of motor batteries for N2.0 million.

(3) Personal guarantee of the Managing Director, Alh. Adams Ajagbule for N1.5 million.”

“Exhibit D1

Universal Trust Bank of Nigeria Limited

Akure Branch

221 Arakale Street

P.M.B. 655 Akure

Tel: 034-231720, 230095

RC 63491

9th September, 1997

AKB/112706/97/RAY/AOB.Fba

The Managing Director

Adamaco Nig. Ltd.

Ondo Road,

Akure.

Attention: Alh. Adams Ajagbule

Dear Sir,

Offer letter

We are pleased to advise that Universal Trust Bank of (Nig.) Ltd. has approved renewal of our line of credit for your company under the following terms and conditions.

Facility A

Amount: N1,500,000.00 (One Million, five hundred thousand naira only)

Providing for: Overdraft on current account

Purpose: Working capital financing

Pricing: Interest rate: UTB’s max. lending rate currently 21% COT: 3 per mile

Repayment: From operational cash flow

Tenor: 365 days (subject to 90-day clean up cycle)

Security: (1) Legal mortgage on a landed property of Alh. Adams Ajagbule situated at No. 40 Clerks Qtrs, Ondo State.

(2) Hypothecation of stock of motor batteries for N5,000,000.00

(3) Personal guarantee of the Managing Director, Alh. Adams Ajagbule for N6.5 million.”

From the evidence available before the lower court, it is clear that the terms of the overdraft facilities granted by the appellant to the 2nd respondent are as stated in the offer letter of 18th November, 1996, exhibit A3 and the offer letter of 9th September, 1997, exhibit D1. It is not in dispute that the terms and conditions stipulated therein were duly accepted by the 2nd respondent. The interest rate stated therein in exhibit A3 and D1 is stated as 21%.

Clause 2 of exhibit A1, the Tripartite Deed of Legal Mortgage dated the 11th day of November, 1992, read:-

“2. While it is the bank’s intention that this facility shall continue to be available to the borrower until the 30th day of July, 1993, the bank reserves the right to terminate the facility at any time by notice to the borrower in writing. At such time, the facility will cease to be available and all out standings including, interest and other sums for which the borrower may be liable will become due and payable and also the borrower covenants to pay interest on the balance of the said current account and on any other account and on all monies owing to the bank at the rate of (0.5%) per annum above the bank’s prime lending rate ruling from time to time. The bank’s prime rate is declared currently at 29% giving an initial gross interest rate of (29.5%) per annum. Interest shall be payable monthly in arrears from the date of initial draw down or at such other rates and at such other times as the bank may from time to time determine provided always that, if the interest or any interest payable on any arrears of interest capitalised under this proviso shall remain unpaid for 2(two) weeks after the date on which the same ought to have paid the same shall be added for all purpose to the balance of monies hereby secured (unless the bank shall otherwise by writing expressly elect) and shall thenceforth bear interest payable at the rate and on the days aforesaid and the covenants and provisos contained in these presents and rules of law or equity in relation to interest on the said balance shall equally apply to interest on such arrears.”

A careful perusal of Clause 2 show that the facility granted the respondents under this deed of Tripartite Legal Mortgage is available to the borrower, that is the respondents in the instant case until 30th day of July, 1993, with the right of the bank, i.e. the appellant to terminate the facility at any time by notice in writing to the borrower. Where the bank decides to exercise this option i.e. to determinate the facility, then all out standings, including interest or other sums the borrower may be liable to and payable to the bank at the rate of 0.5% above the bank prime interest rate declared at 29% giving the initial interest of 29.5% per annum. The clause went on to provide:-

“Interest shall be payable monthly in arrears from the date of initial draw down or at other rates and at such other times as the bank may from time to time determine The key word here is “drawdown”. If the entire clause is construed as a whole it will be clear that the interest rate being referred to is the interest payable by the borrower after the termination of the facility granted by the bank on the unpaid out standings due to the bank. “Drawdown” is an act of drawing an available loan facility granted by the bank to the borrower. It is my humble view that, the reference to… “as the bank may from time to time determine …” means the interest on the outstanding balance due to the bank from the borrower from the date of the initial drawdown.

It is trite law that, in construing a statute, the clause will be considered as a whole and not just a part of it in order to ascertain and fully understand its full meaning, scope and effect.

It is a fundamental principle of interpretation of the words of a statute that where the words used are clear and unambiguous should be given their ordinary meaning. See Bamaiyi v. A.-G. of the Federation (2001) 90 LRCN 2738, (2001) 12 NWLR (Pt. 727) 468; Niger Progress Ltd. v. N.E.L. Corporation (1989) 3 NWLR (Pt. 107) 68; Garba v. Federal Civil Service Commission (1988) LRCN 3485, (1989) 1 NWLR (Pt. 71) 449.

In the instant case, exhibit A1, the Tripartite Deed of Legal Mortgage was executed on the 11th November, 1992, for a facility available until the 30th July, 1993. The overdraft facilities granted the respondents by exhibits A3 and D1 were granted in 1996 and 1997. The nature of the relationship between exhibits A3 and D1 with exhibit A1, the Tripartite Deed of Legal Mortgage does not confer on the appellant the right to charge interest rate arbitrarily.

In the circumstances also, I do not agree with the submission of the learned Counsel for the appellant that the word “currently” used in exhibits A3 and D1 is enough to cloth the appellant with power to unilaterally increase the interest rate from 21% to 33% and 35% within a period of 2 months and 11 days in the absence of any express provision to that effect in the contract agreement. This is arbitrary use of power and it is therefore unconstitutional and null and void and I therefore so hold. Based on the above findings, this issue is also resolved against the appellant.

Issue four (4) is whether the learned trial Judge was relying on the evidence of PW3 for his finding that the appellant was responsible for the sealing of the respondents business premises on 3/8/99.

Learned Counsel for the appellant considered the evidence adduced by PW3 vis-a-vis the pleadings of the respondents and submitted that the evidence of PW3 is at variance with the pleadings of the respondents. It is submitted that parties are bound by their pleadings and any evidence led on facts not pleaded goes to no issue and must not be allowed at the trial. It is submitted that in paragraph 9 of the reply to the statement of defence, the respondents referred to the petition of the appellant to the police on 27th August, 1999, but said nothing as to what happened sequel to the petition. It is the view of learned Counsel that if the learned trial Judge had adverted his mind to the pleadings of the respondents, he would have discovered that the evidence of PW3 goes to no issue and therefore has no probative value. He relied on the authority of F.A.T.B. Limited v. Partnership Investment Co. Limited (2003) 18 NWLR (Pt.851) 35 at 57. The court was urged to expunge the evidence of PW3 from the record in line with the decision of the Supreme Court cited above. It is further submitted that the evidence of PW3 had no connection with the parties before 27/8/99 when the petition of the appellant was received by the Commissioner of Police. That PW3 did not mention, 3/8/99 as the date the Respondents business premises was sealed by the appellant. We were urged to resolve this issue in favour of the appellant.

In his submission, learned Counsel for the respondents referred to a content of petition dated 27/8/99, written by the appellant against the 1st respondent to the Commissioner of Police, Akure, Ondo State exhibit D10 and submitted that the content of the petition reveals it all. Learned Counsel also referred to the evidence of PW3 in chief and under cross-examination that the respondent’s business premise was sealed up by the appellant. It is submitted that exhibit D10 is an admission against interest and that what is admitted needs no further proof. That the evidence is not contradicted and the court has no alternative but to accept the evidence citing Steven Omo Ebueku v. Sunmonu Amola (1988) 3 SCNJ (Pt1) 207 at 209, (1988) 2 NWLR (Pt. 75) 128; Kamiru Olujinle v. Bello Adeagbo (1998) 4 SCNJ 1 at 15, (1988) 2 NWLR (Pt. 75) 238. That the evidence of DW1 and DW2 relating to the sealing of the premises is hearsay and therefore inadmissible as both DW1 and DW2 were not around at the time the premises was sealed. We were urged to resolve the issue against the appellant.

To appreciate this issue fully, it is necessary in my view to go back to the pleadings of the parties and the evidence adduced there under to determine whether the appellant was responsible for the sealing of the respondent’s business premises. Respondents statement of claim, particularly paragraphs 28, 29, 30 and 31 are relevant. They are hereby reproduced:-

“28. In the light of paragraphs (26 and 27) above, the plaintiffs were shocked and embarrassed when on the 3rd day of August, 1999, the defendant came to the plaintiff’s premises at No. 28A Ondo Road, Akure, in Ondo State and forcibly sealed the said business premises.

Further to paragraph (28) above, the defendant informed the plaintiff that the plaintiff’s company will remain sealed until and unless the plaintiffs allow the defendant to take over the control and management of the plaintiff’s company.

The plaintiffs in reaction to paragraphs (28 and 29) above state that the plaintiffs informed the defendant that the action of the defendant amounts to self help in that there is no agreement oral or written to that effect.

The said premise is still under lock and key up to this moment.

The plaintiffs aver that the defendant has threatened to sell by way of public auction, the 1st plaintiff’s property situate at No. 31, Mariatun House (formerly No. 40) Asewa Street, Clerks Quarter, Owo, in Ondo State, which the plaintiffs mortgaged with the defendant bank except the plaintiffs allow the defendant to take over the control and Management of the plaintiffs company.”

In response, the appellant averred in paragraph 13(a)-(e) as follow:-

“13. The defendant states with reference to paragraphs 28, 29, 30 and 31 of the statement of claim as follows:-

(a) The defendant has a charge on the stock of the plaintiff’s business premises at Nos. 28 and 29 Ondo Road, Akure, under the Deed of Hypothecation recited above in.

(b) The defendant has a right of control over the plaintiff’s business premises and stock as agreed by the parties and evidenced by the letter dated 9th September, 1997.

(c) The plaintiffs allowed the defendant to exercise its right of dual control of the stock and premises, until 6th of August, 1999, when it absconded in order to prevent the defendant from realizing on the stock of goods pledged as security.

(d) On 5th August, 1999, the plaintiffs were the persons who locked the doors to the shops, but as usual in presence.

(e) The defendant while completely oblivious of the fact that the plaintiffs had approached the court wrote to the plaintiffs in good faith, two letters dated 9th August, 1999, and 11th August, 1999, requesting for reasons for their not showing up for business at the shops as was being done earlier.

The 1st appellant testified as PW1 and gave evidence as follows:-

” … On 3rd August, 1999, as I was trying to talk to the defendant as to the excessive charge of interest rate, the defendant manager and his officer and security came to my premises at No. 28, Ondo Road, Akure, alleging that I was not performing. In view of that, he ordered his men to seal my premises and the place was put under lock and key by the defendant. The second day, I went to the defendant mutice (sic) to rub mind with him on the issue … ” (See page 26 lines 19-29 of the record).

PW3 testified and corroborated the evidence of PW1 as follows:

“I can remember 27/8/99, a petition was written by the defendant and sent to the Commissioner of Police. I was assigned to investigate. The petition is about Adamco and Universal Trust Bank… I invited the plaintiffs as well as the defendant to the scene of crime. On arrival the scene of crime, I met one police man and a security man attached to the Universal Trust Bank. All of them were on duty and the place was sealed up by the defendant…”

(See page 40 lines 25-28 and page 41 lines 7-12 of the record). This witness stated further under cross-examination as follows:-

“I said I was at the scene of crime and said it was UTB that sealed the premises ….”

(See page 42 lines 12-13 of the record) DW1 testified as to the closure of the plaintiff’sbusiness premises as follows:-

“It is not true that we sealed plaintiff’spremises. What happened is that it was the plaintiffs who locked the shop at close of business on 5th day of August and since then he abscribed (sic). On 6th August, 1999, the plaintiff did not return to shop after the loded (sic) it on 5/8/99. The following week connected (sic) the plaintiff why the shop was not opened on business. We wrote 2 (two) letters in respect of the closure. These are the letters.”

The letters dated 9/8/99 and 11/8/99 were admitted in evidence as exhibits C2A and C2B. That the letters were to notify the plaintiff’s dual and joint control they have over the premises an his total indebtedness. That it was when it was discovered that the premises was locked and unsecured that they deployed their own security men and the police to safeguard the place.

It is settled law that parties are bound by their pleadings. Evidence not pleaded cannot be allowed at the trial and if such evidence was admitted then an appellant’s court is duty bound to strike out such evidence, and must not consider it in the determination of the appeal. In the instant appeal, PW1 testified as to the sealing of the business premises by the defendant as pleaded by them in their statement of claim. PW3 who was an investigation Police Officer in respect of a petition written to the Commission of Police by the appellant only confirmed what the PW1 said regarding the sealing of their business premises by the appellant. The fact that PW3 had no connection with the parties before 27/8/99, not withstanding so far as the issue he was being assigned to investigate is the business premises of the respondents, a fact which he so found in the course of his investigation. There was no evidence adduced by the appellant controverting or contradicting these pieces of evidence by the PW1 and PW3 and the lower court was right to have acted on them. The court could have also acted on the evidence of PW1 alone. In any case, there is no rule of law or of practice that says a particular number of witnesses shall be required for the proof of any fact. It is settled that evidence which is unchallenged through cross-examination not controverted by other evidence and is not by itself incredible is qualified to be accepted and acted upon by the trial court. See Ivienagbor v. Bazuaye (1999) 70 LRCN 225, (1999) 9 NWLR (Pt. 620) 552; U.B.N. v. Fajebe Foods Ltd. (1998) 6 NWLR (Pt.554) 380. In the circumstances, it is humble view that the evidence of PW31 end weight to the respondent’s pleadings that their business premises was sealed up by the appellant on the 3/8/99. The finding is not perverse. This issue is also resolved against the appellant. Issue five (5) is whether on the pleadings and evidence before the court, the learned trial Judge was right when he awarded to the respondents the sum of N1,580,000.00k (One million, five hundred and eighty thousand naira) as special damages.

It is submitted for the appellant that in a claim for special damages full particulars of the claim must be given in the statement of claim citing Benin Rubber Producers Ltd. v. Ojo (1997) 9 NWLR (Pt.521) 388 at 411; R.C.C. (Nig.) Ltd. v. Edomwonyi (2003) 4 NWLR (Pt.811) 513.

It is submitted that the respondents failed to give particulars of the loss of earning in their statement of claim which is incurably defective and should have been struck-out by the lower court, citing Adedeji & Sons Motors Ltd. v. Immeh (1996) 8 NWLR (Pt.465) 240. It is the view of learned Counsel that details of repayments made by the 2nd respondents which were set out in paragraph 26 of the statement of claim do not constitute particulars of special damages in relation to loss of earnings by the 2nd respondent. It is submitted that it is trite law that special damages must not only be pleaded with sufficient particulars, but be strictly proved with credible evidence. The following cases were referred to Osuji v. Osiocha (1989) 3 NWLR (Pt. 111) 623 at 636; Odulaja v. Haddad (1973) 11 Sc. 357. It is submitted that the respondents did not lead any credible evidence to substantiate the claim for N20,000.00 as loss of earning per day. It is the view of learned Counsel that PW1 in his evidence in chief merely repeated the claim but failed to substantiate the same with any credible evidence when he said, “I am asking the court to grant damages of N20,000.00 naira per day for loss of earning.”

It is submitted that the above statement fall short of the strict proof of special damages as stated in Odulaja v. Haddad (supra). It is further contended that it is the law that a claim for special damages must stand or fall on the evidence of the claimant citing the following cases -Agbeje v. James (1967) NMLR 49 at 51- 52; Okoronkwo v. Chukwueke (1992) 1NWLR (Pt.216) 175 at 195; Haway v. Mediowa (Nig.) Ltd. (2000) 13 NWLR (Pt.683) 77 at 91; Okeke v. Aondoakaa (2000) 9 NWLR (Pt.673) 501 at 528 – 529; Ham Idu v. Sahar Ventures Ltd. (2004) 7 NWLR (Pt.873) 618; Ojo v. Victino Fixed Odds Ltd. (2000) 9 NWLR (Pt.673) 647 at 661. It is therefore submitted that the award of N20,000.00 as loss of earning per day to the respondents in the absence of credible, reliable and categorical evidence is arbitrary, capricious and unjustifiable and we were urged to allow the appeal on this ground.

For the respondents it is submitted that they are entitled to the special damages awarded them. He agreed that special damages must be proved strictly citing F. O. Akintunde v. Chief E. A. Ojiekere (1971) NMLR 91 and submitted that in justifying their claims the respondents pleaded in paragraphs 26 and 27 which the appellant admitted in paragraph 12 of the statement of defence and the counterclaim. He submitted that what is admitted needs no further proof. He referred to the following cases; Steven Omo Ebueku v. Sunmonu Amola (1988) 3 SCNJ (Pt.11) 207, (1988) 2 NWLR (Pt. 75) 128; Karimu Olujinle v. Bello Adeagbo (1984) 4 SCNJ 1, (1984) 2 NWLR (Pt. 75) 238. We were asked to resolve the issue against the appellant.

The respondents claimed the sum of N20,000.00 (Twenty thousand Naira) being loss of earnings per day for the illegal sealing of the appellants business premises at Akure from 3rd day of August, 1999, until when the said premises is unlocked by the appellant or until when judgment is delivered. The said premises remained sealed for 79 days before the court directed that the premises should be reopened on 22/10/99.

It is settled principle of law that special damages must not only be pleaded with sufficient particulars, but it must be strictly proved with credible evidence. If the damages claimed are special in nature, credible evidence will have to be called in order that the amount pleaded may be proved. Without such proof no special damages can be granted. See RCC (Nig.) Ltd. v. Edomwonyi (supra); Osuji v. Osicha (supra). The type of proof required is one that would readily lend itself to qualification or assessment.

In the instant case, the respondents pleaded in paragraphs 26 and 27 of their statement of claim as follows:-

“26. The plaintiffs aver that in spite of the incidents referred to in paragraphs (12 & 13) above coupled with the said outrageous interest rate, the plaintiffs were still making reasonable and regular repayments of their indebtedness to the defendant. For instance, the payments for the month of July, 1999, speak for itself:-

Date Amount Teller Number

2/7/99 30,000.00 36,2234

2/7/99 20,000.00 Printing (36,2235)

5/7/99 40,000.00 Error (36,2235)

7/7/99 20,000.00 36,2236

8/7/99 60,000.00 36,2237

13/7/99 20,000.00 36,2238

13/7/99 15,000.00 36,2239

14/7/99 20,000.00 36,2240

16/7/99 10,000.00 36,2241

16/7/99 10,000.00 36,2242

19/7/99 5,000.00 36,2243

23/7/99 30,000.00 36,2245

29/7/99 Cheque paid in and cleared N150,000.00 (One hundred and fifty thousand naira). The said tellers and cheque are hereby pleaded.

In addition to paragraph (25) above, some of the plaintiffs members of staff who confessed as having perpetrated the fraud discovered in the plaintiffs company have in the said month of July, 1999, made a repayment of N45,000.00 to the defendant vide the plaintiffs account.”

In their response to the above paragraphs, the appellant averred in paragraph 12 of his statement of defence as follows:-

“12. With reference to paragraphs 26 and 27 of the statement of claim, the defendant avers that these payments were only made after the bank had called in the facilities as being due for payment vide its letters dated 22nd June, 1998, 5th August, 1998, 10th September, 1998, 9th February, 1999, 22nd February, 1999, but were not enough to liquidate the indebtedness.”

Paragraph 26 of the statement of claim set out payments made in July, 1999, by the respondents to the appellant which payments range from N5,000.00-N150,000.00. The respondents admitted such payments by their paragraph 12 of the statement of defence and the said payments were made after the appellant called in the facilities as being due for payment.

It is trite law that parties are bound by their pleadings. An averment in a pleading which is admitted need no further proof. See National Bank of Nigeria v. Opeola (1994) 1 NWLR (Pt.319) 126. In the instant case, since the appellants having admitted by their pleadings that the respondents were making payments ranging from N5,000.00 and N150,000.00 per month and there was evidence that, the respondents business premises was illegally sealed by the appellant, and put under lock and key for a period of 79 days as found by the lower court and the further evidence from PW1 that despite the sealing of the premises, the respondents still pay its staff. It is my view based on the average of the respondents returns to appellant in July 1999 as pleaded in their statement of claim, the respondents are entitle to the award N20,000.00 per day.

I did not agree with the submission of the learned appellant’s Counsel that the learned trial Judge placed reliance on the evidence PW3 as the bases for his finding that the business premises of the respondents was sealed by the appellant on 3/8/99 and awarded special damages of N20,000.00 per day to the respondent. There was ample evidence before the lower court from the 1st respondent (PW 1) that the business premises was sealed by the appellant on the 3/8/99. It is my humble view that the award of N20.000.00 special damages to the respondents is proper and justified in the circumstances. It is based on available evidence before the lower court. The finding is not perverse and I so find. This issue is also resolved against the appellant.

Issue six (6) is whether the sum of N5,000,000.00 (Five million naira) awarded by the learned trial Judge as general damages in favour of the respondents is proper and justifiable.

It is the view of learned Counsel for the appellant that by the nature of the 2nd respondent’s trading business the quantum of loss arising from the sealing of its premises is ascertainable. The loss can be qualified in terms of loss of earning and anticipated profit for the number of days during which the premises was sealed in view of paragraphs 33 and 34 of the statement of claim which states an average of sale of N20,000.00 per day. It is the view of learned counsel that by awarding general damages to the respondent when the quantum of loss is ascertainable, the award of general damages is improper. On the principle guiding the award of general damages learned Counsel referred to the case of Calabar East Co-op. v. Ikot (1999) 14 NWLR (Pt.638) 225 at 243. It is submitted that there must be a material evidence before the trial court showing damage to the respondents resulting from the action of the appellant. He submitted that PW1 only ask the court to grant him general damages for the ridicules they have put him into and for losing most of his customers without any credible proof. On the point of view of proof, learned Counsel referred to the following cases, Odunmosu v. ACB (1976) 11 SC. 55 at 68-69, (1988) 1 NWLR (Pt. 72) 601 per Idigbe, JSC; Duyile & Anor. v. Ogunbayo & Sons Ltd. (1988) 1 NSCC (Vol. 19) 385; Emegokwue v. Okadigbo (1973) 4 SC. 113; Mohammed v. Klargester (Nig). Ltd. (2002) 14 NWLR (Pt.787) 335. It is submitted that loss of customers constitutes special damage and cannot be the premise for an award of general damages. It is also submitted that the business premises which was said to have been sealed by the appellant belongs to the 2nd respondent, a limited liability company and thus has no personal feeling and is not therefore susceptible to ridicule. It is further submitted that the 1st respondent being the Managing Director of the 2nd respondent is not entitled to an award of general damages for any damage to the 2nd respondent whose business premises was said to have been sealed by the appellant, since a company is a separate and district personality from its directors, citing Salomon v. Salomon (1897) A.C. 22.

It is also submitted that if the losses suffered by the respondents have been compensated for by an award of special damages the award of general damages to respondents amounts to double compensation against which the law frowns at citing the following cases; Ezeani v. Ejidike (1964) All NLR 402; Oshinjinrin v. Elias (1970) All NLR 153; Ekpe v. Fagbemi (1978) All NLR 107, (1978) 3 SC 209. It is further submitted that the award of N5 million naira as general damages to the respondent for the illegal sealing of the business premises of the 2nd respondent in addition to the sum of N1,580,000.00 awarded as special damages for loss of earning amount to double compensation, particularly when the general damages was hinged on loss of customers which is an item of special damage. The court was urged to resolve this issue in favour of the appellant.

For the respondents, it is submitted that the award of N5 Million Naira general damages for the illegal sealing of their business was proper. He cited and relied on the case of Union Bank of Nigeria Ltd. v. Odusote Book Stores Ltd. (1996) 42 LRCN 1639, (1996) 9 NWLR (Pt. 421) 558, and submitted that the quantum of general damages need not be pleaded or proved as, is generally presumed by law. He also relied on the following cases, Rockonoh Property Co. Ltd. v. Nig. Telecommunications Plc. (2001) 89 LRCN 2602, (2001) 14 NWLR (Pt. 733) 468; Prehn v. Royal Bank of Liverpool (1870) LRSFS 92, (1870) LR. 5 Exch. It is the view of learned Counsel that having regard to the circumstances of this case, the respondents quantum of loss is not ascertainable as submitted by the appellant, that it is indeed at large. It is further submitted that the 1st respondent is the Chairman and Managing Director of the 2nd respondent and the sole signatory to the 2nd respondent. That he also personally guaranteed the overdraft facilities granted to the 2nd respondent company. That the 1st respondent also mortgaged his personal property as security for the overdraft facilities granted the 2nd respondent. That the 1st respondent is three things role into one, the guarantor, Chairman and Managing Director of the 2nd respondent and the owner of the properly mortgaged.

On the attitude of the appellate court to the award of general damages learned counsel referred to the case of Joseph Odogu v. Attorney-General of the Federation & Ors. (1996) 40/4/LRCN 1454 at 1467, (1996) 6 NWLR (Pt. 456) 508.

It is also the view of learned Counsel that the court should not disturb the award of general damages having regard to the fact that the act of the appellant in sealing of the business premises amounted to self help. He referred to the case of Chief D. M. Okochi & Ors. v. Chief Amukali Animikwoi & Ors. (2004) 114 LRCN 2924 at 2942. Learned Counsel also urged the court to consider the petition exhibit D10 written against the 1st respondent by the appellant to the Commissioner of Police investigated by PW3 which suggest that the allegation against the 1st respondent is a criminal allegation. It is submitted that the 1st respondent was in the process exposed to public ridicule, odium and his reputation was put into question. That it is not out of place for the 1st respondent to ask for general damages for ridicule they have made him unto.

On the issue of double compensation, it is submitted that the issue was never made a ground of appeal and not one of the issues for determination and should therefore be discountenance citing, Okonkwo v. Ogbogu (1996) 37 LRCN 580 at 582, (1996) 5 NWLR (Pt.449) 420; Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372 at 375. It is therefore contended that the award of special and general damages do not amount to double compensation. He relied on the following cases:- Eliochin (Nig.) Ltd. & Ors. v. Victoria Ngozi Mbadiwe (1986) 1 NWLR (Pt.14) 47; Odiba v. Azege (1998) 61 LRCN 4605 at 4626. (1998) 9 NWLR (Pt. 566) 370; Ezeani v. Ejidike (1964) 1 All NLR 402 and urged the court to hold that there is no question of double compensation and against the appellant.

It is settled law that general damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what in the opinion of a reasonable person considered adequate loss, or inconvenience which flows naturally, is as generally presumed by law, from the act of the defendant. I do not depend upon calculation made and figure arrived at from specific items. See Rockonoh Property Co v. NITEL (2001) 89 LRCN 2602 at 2611, (2001) 14 NWLR (Pt. 733) 468; Odulaja vs. Haddad (supra); Osuji v. Isiocha (supra).

The learned trial Judge in awarding general damages to the respondents had this to say:-

“In the instant case, the plaintiffs are asking for N5 million Naira general damages:-

“for the ridicules they have put me into and losing most of my customers.”

The type of damage reproduced above which the plaintiffs are claiming is concerned with non-pecuniary losses which I must admit is difficult for me to assess without having to rely on the opinion or the judgment of a reasonable man.

The defendants never by way of cross-examination challenged the evidence of the 1st plaintiff (PW1). This claim was pleaded in the plaintiff’s statement of claim as set out in paragraph 40 thereof.

… In the instant case applying the definition of the of the term “general damages” as defined by Martin B in Prehn v. Royal Bank of Liverpool (supra) to the claim of the plaintiffs, this court has no option other than to accept the amount claimed by the plaintiffs for general damages being an assessment based on the opinion and judgment of a reasonable man. In the circumstances, the plaintiffs are entitled to the amount claimed as general damages and I so hold.”

Now, before delving into the issue whether the award of N5 million Naira general damages to the respondents amounts to a double compensation which the law frowns at in view of the award of N1,580,00.00 special damages to the respondents, I will now proceed to consider whether the award of the general damages in the circumstance of this case is justifiable.

From the judgment of the lower court quoted above, it is clear that the learned trial Judge based its findings in respect of his award of general damages on the ground that the claim is concerned with non-pecuniary losses which are difficult to asses but to rely on the opinion or judgment of a reasonable man having regard to the circumstances of the case. The claim was awarded for ridicule which the appellant have put the respondents through and for losing most of its customers.

However, it is argued by the appellant that the award of general damages is improper where the quantum of loss is ascertainable citing U.B.N. Ltd. v. Odusote Bookstores Ltd. (supra); Kerewi v. Odegbesa (supra). That since the respondents claimed to be making an average sale of N20,000.00 per day shows that the quantum of loss is ascertainable and the award of general damages is improper. That the absence of credible evidence of damage makes the award of general damages improper.

From the point of view of proof, general damages are classified into two categories:-

(1) that in which they (damages) may be inferred e.g. in case of defamation or personal injury to plaintiff when pain and suffering may be presumed;

(2) that which they will not be inferred but must be proved (for instance damages arising by way of general loss of business following injury). See Odumosu v. ACB (supra).

It is my humble view that the quantum of loss that is ascertainable in the instant case is the N20,000.00 per day loss of earning, which is in the region of special damages which has been ascertained and established by the respondents. In the circumstances, I agree with the submission of learned Counsel for the respondents that having regard to the circumstances of this case, the respondents turn of loss is not ascertainable and that it is indeed at large. I also agree with him that the quantum of loss relating to the ridicule, humiliation and negative impression the respondents were exposed to when they were ordered out of their business premises by the appellants security agents and their business premises put under lock and they were not ascertainable. Coupled with the fact that policemen had to come into the business premises in full glare of the general public to carry out investigation bordering on exhibit D10, the petition written by the appellant against the 1st respondent. Based on the foregoing, it is my humble view that the respondents quantum of not ascertainable and I so find.

It is also argued by the appellant that the 2nd respondent whose business premises was alleged to have been scaled is a legal person that has no personal feeling and is not therefore susceptible to ridicule. It is also contended that a Director cannot be made personally liable for the facts and default of his company and in the same vein a Director like the 1st respondent cannot be entitled to damages for any injury suffered by his company.

It is argued for the respondents that the 1st respondent is the Chairman and Managing Director of the 2nd respondents company. He is the sole signatory to the 2nd respondent’s account. That apart from that, he personally guaranteed the overdraft facilities granted the 2nd respondent and mortgaged his personal property as security he overdraft facilities granted. That 1st respondent is three all roll into one. In fact, these are facts that are borne out by evidence before the lower court and there is no rebuttal evidence from the appellant. Blacks Law Dictionary, Sixth Edition at page 391 defines general damages as:-

“Such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result, or such as necessarily result from the injury, or such as did in fact, result from the wrong, directly and approximately, and without reference to the special character, condition, or circumstances of the plaintiff.”

In view of the above and the entire circumstances of this case, my humble view that this instant case is clearly distinguishable with the circumstance in the case of Salomon v. Salomon (supra). I am not unmindful however, of the position of the law that, while a Director of a company cannot be made personally liable for the acts and default of his company and in the same vein, a Director cannot be entitled to damages for any injury suffered by his company. The instant appeal present a unique position and it is my view that pain and suffering in form of ridicule may be inferred to the 1st respondent and is entitle to some measure of general damages, which may be assessed in the opinion or judgment of a reasonable man as it is concerned with non-pecuniary losses which are difficult to estimate.

Let me pause to ask the question, whether in the circumstances of this case, the award of general damages to the respondents coupled with award of special damages amounts to double compensation?

It is settled law that when a man has been fully compensated under one head of damages for a particular injury, it is improper to award him damages in respect of the same injury under another head. In other words, a plaintiff who has been awarded special damages should not be awarded an additional amount as general damages, as that would amount to double compensation, which, the court should always refrain from granting. See Ibile Holdings Ltd. v. P.D.S.S. (2002) 16 NWLR (Pt. 792) 117; Total Nigeria v. Morkah (2002) 9 NWLR (Pt. 773) 492; UBN Ltd. v. Odusote Bookstores (supra); Oshinjinrin v. Elias (supra); Ezeani v. Ejidike (supra); Ekpe v. Fagbemi (supra).

The question is, was the learned trial Judge in error, when he granted the award of general damages for the illegal sealing of the business premises of the 2nd respondent? My answer is clearly in the negative. The cases referred to above deal with cases of personal injury which is not the case in the instant case. The Supreme Court in Eliochin (Nig.) Ltd. v. Mbadiwe (supra) held that, if special damages are claimed in addition to general damages, in an action for trespass, special damages will be awarded if strictly proved in addition to general damages. Also, in Odiba v. Azegbe (supra), it was also held that where special damages have been strictly proved, the respondent is also entitled to aggravated damages. See also Ezeani v. Ejidike (supra).

It is also my view in the instant case that, the award of special damages along with that of general damages by the lower court does not amount to double compensation and I so hold.

An appellate court does not ordinarily alter or interfere with an award of damages made by the lower court, except where the award is shown to be either manifestly too high or manifestly too low or where it was based on a wrong principle of Law. It is my humble view in the circumstances of this case, that the award of N5 million naira general damages is manifestly too high and this court should interfere to review the award. Consequently, the award of N5 million naira general damages to the respondents is hereby reviewed to the sum of N2 million naira general damages. This, I consider in the opinion of a reasonable man adequate loss or inconvenience, which flows naturally from the acts of the appellant. This is also without prejudice to the award of special damages. This issue is resolved partly in favour of the appellant.

Issue seven (7) is whether the learned trial Judge was right, when he held that the appellant has failed to prove its counter-claim.

Learned Counsel for the appellant stated the appellant’s counter-claim, the evidence of DW2 exhibit C1, the affidavit verifying the statement of account filed by the appellant and exhibits WA1 and WA2 for accounts No. 50045021, reflecting a debit balance of N2,762,569.37 as at July, 1999, and account No. 50045005 reflecting a debit balance of N1,544,118;63 and submitted that the appellant did establish the indebtedness of the 2nd respondent by virtue of exhibits WA1 and WA2 attached to exhibit C1 citing Obijiaku v. NDIC (2002) 10 NWLR (Pt. 774) 201 at 215 per Olagunju, JCA wherein he said, “proof of entry in a banker’s book is the method appropriate for establishing by the bank of the indebtedness of a customer”. It is also submitted that PWI under cross-examination stated that he was indebted to the appellant as at June 26th, 1999, when he wrote the appellant asking to be allowed to be repaying N200,000.00 monthly as per exhibit D3. It is the view of learned Counsel on the authorities of, Akalonu v. Omokaro (2003) 8 NWLR (Pt. 821) 190; Thor Ltd. v. FCMB Ltd. (2003) 4 NWLR (Pt. 652) 274, that the 1st respondent having admitted its indebtedness to the appellant as at June 26, 1999, vide exhibit D3 as confirmed in the oral testimony of PW1, failed to lead evidence to show that its obligation to the appellant has been discharged. It is further submitted that the appellant having led cogent, credible and categorical oral and documentary evidence at the lower court in proof of its counter-claim is entitled to judgment for the sum claimed as shown in the statement of account attached to exhibit C1. He referred to the case of Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.

It is submitted that exhibit D7 which was prepared by PW2 is predicated on the said Central Bank Guidelines, which was not tendered in evidence at the lower court. It is also submitted that the respondent having failed to tender the Central Bank of Nigeria Guidelines which formed the basis of exhibit D7 cannot rely on the exhibit as it has no probative value. We were urged to resolve this issue in favour of the appellant.

For the respondent, it is submitted that the counter-claim has not been proved as required by law.

It is submitted that there are two statement of accounts before the court, i.e. exhibit D7 prepared by the respondents and exhibit C1 prepared by the appellant. Exhibit D7 was prepared on the basis of 21% interest, while C1 was prepared on the basis of between 21% and 35% interest. It is submitted that the position of the respondents that at all material times between 1996 and 1999, there was a Central Bank Lending Policy and that the maximum interest rate is 21%, while the contention of the appellant was that lending rate was deregulated and as such the appellant was at liberty to charge as high as 35% interest rate and upon which exhibit C1 was based.

It is further submitted that DW1 testified in line with the appellants pleading that there was no Central Bank Guidelines regulating interest rate between 1996 and 1999, while DW2 testified contrary to the pleading of the appellant both in his evidence-inchief and under cross-examination and maintained that there was Central Bank Guidelines that regulated interest rate at all material time between 1996 and 1999. It is argued that this is evidence against interest warranting the dismissal of the appellant’scounter-claim. He cited and relied on the authority of Ojo Adebayo v. Mrs F. Ighodalo (1996) 38 LRCN 747, (1996) 5 NWLR (Pt. 450) 507; Nsirim v. Nsirim (2002) 94 LRCN 117, (1990) 11 NWLR (Pt. 138) 285; Woluchem v. Gudi (supra). We were urged to resolve the issue against the appellant.

The appellant, by its statement of defence and counter-claim dated 8th day of September, 1999, claimed against the respondents jointly and severally as follows:-

(a) The sum of N2,762,569.37 (Two million, seven hundred and sixty-two thousand, five hundred and sixty-nine Naira, thirty-seven kobo) being outstanding debt on Account No. 50045021 as at 30th July, 1999.

(b) The sum of N1,544,118.63 (One million, five hundred and forty-four thousand, one hundred and eighteen naira, sixty-three kobo) being outstanding debt as at 5th August, 1999.

From the counter-claim stated above, the total indebtedness of the respondents to the appellant is N4,306,688.00k (Four million, three hundred and six thousand, six hundred and eighty-eight naira). It is submitted by the appellant that they tendered exhibit C2B, letter dated 11th August, 1999, stating total indebtedness of the respondents and referred to the evidence of DW2 regarding the total indebtedness of the respondents to the appellant. They also tendered exhibit C1, the affidavit verifying the statement of account filed by the appellant in respect of the two accounts being operated by the respondents and referred to cases of Obijiaku v. NDIC (supra) and submitted that proof of entry in banker’s book is the method appropriate for establishing by the Bank of the indebtedness of a customer. This is so in view of the provision of section 97(1)(h) and 2(e) of the Evidence Act, when an occasion arises for a bank to prove the antecedents of a given transaction when there is such an occasion between it and its customers. However, this is not the position in the instant case. The issue in the instant appeal is with the regard to the percentage of interest rate calculated and charged by the appellant while making entries in respect of the two accounts being operated by the respondents to arrive at the total indebtedness of the respondents. The percentage of the interest rate calculated by the appellant in arriving at the total indebtedness is between 21% and 35% which was vehemently denied by the respondents.

Now the question is, was the learned trial Judge in error, when he held that the appellant has not proved his counter-claim? What was the basis for the finding that the appellant has not proved his counter-claim?

In arriving at such a finding the learned trial Judge considered all the exhibits tendered by the parties in the proceedings and these inc1ude exhibits A1, A2, A3 and D1 which documents the court finds as constituting the agreement between the parties. The lower court considered exhibits A4, A5, A6, D1, D2, D3, D4, D5, D8, D9 and D10 tendered by the appellant in proof of his counter-claim. The learned trial Judge considered all the exhibits and came to the conclusion as follows:-

” … Exhibit D6 is an extract from the minutes of the meeting of the Board of Directors of the 2nd plaintiff as far back as 2nd day of October, 1997, when exhibit D6 is read in conjunction with exhibit D1 dated 9/9/97, it is quite obvious that exhibit D6 was issued pursuant to exhibit D1.”

In paragraph 2 of exhibit D6 the board resolved as follows:

“It is hereby resolved that the credit facilities offered by Mssrs Universal Trust Bank Nigeria Limited upon the terms and conditions as contained in the Bank’s letter of offer dated 9th September, 1997, and as may be renewed from time to time be hereby accepted upon the said terms and conditions.”

Exhibit D6 is subject to the terms and conditions contained in exhibit D1. One of the terms and conditions set out in exhibit D1 is rate of interest fixed at 21%. The phrase “as may be renewed from time to timedo not relate to interest rate. It relate to facilities. Hence exhibit D6 cannot be interpreted to mean that the plaintiffs accepted to the variation of interest as may be varied from time to time as defendant have tried to convince this court. To hold to this view is erroneous.

The sum total of all that I have been saying is that the defendants have failed to prove their counter-claim. On the other hand, the plaintiffs have by the preponderance of evidence proved their case.”

It is not in dispute that the entries in the statement of accounts Nos. 50045021 and 50045005 were made based on the interest rate at 21% and 35% respectively. It is based upon this calculation that brought the total indebtedness of the respondents from the two accounts to N4,544,118.63k which the appellant’s counter-claimed.

The issue of interest rate chargeable based on exhibits A2, A3 and D1 and as upheld by this court is 21% and not 35% based on the appellant’s calculation. It is also on record before the lower court that the respondent produced exhibit D7, the audited statement of accounts of the 2nd respondent which was tendered and admitted before the lower court without any objection. In the said audited statement of account of the respondents interest rate therein was calculated at the rate of 21% not 35%. The said audited statement of account by the calculation of interest rate at 21% showed that the respondents have discharged all their obligations to the appellant in respect of the overdraft facilities granted to it from the two accounts the respondents operate with the appellant, to the extent that they have a credit balance in the said accounts to the tune of N600,000.00k (Six hundred thousand Naira) which the appellant now owe the respondents. Having found in the instant case that the interest rate chargeable from the respondents two accounts operated with the appellant and the subject matter of this appeal is 21% and not 35%, it follows therefore that the appellant has nothing to counter-claim against the respondents. By the content of exhibit D7, the respondents have discharged the burden placed on them to show that the loan has been repaid. See Akalonu v. Omokaro (supra); Thor Ltd. v. FCMB Ltd. (supra). Since the respondent’s indebtedness to the appellant was arrived at based on the 35% interest which this court found to be oppressive, excessive arbitrary and unconstitutional and therefore null and void. This issue is also resolved against the appellant.

In conclusion, it is my view, based on the foregoing that this appeal fails subject to the award of general damages which has been reviewed from N5 million Naira to N2 Minion as canvassed under issue six(6) and it is hereby dismissed. The judgment of the lower court is hereby affirmed.

The respondents are entitled to costs which is fixed at N5,000.00k only.

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Other Citations: (2005)LCN/1787(CA)