SKYE BANK PLC v. MRS. JADESOLA KUDUS

SKYE BANK PLC v. MRS. JADESOLA KUDUS

 final

In The Court of Appeal
Ibadan Judicial Division
On Monday, the 28th day of February, 2011
Suit No: CA/I/191/08
 
Before Their Lordships
 
STANLEY SHENKO ALAGOA    ……. Justice, Court of Appeal
SIDI DAUDA BAGE    ……. Justice, Court of Appeal
JOSEPH SHAGBAOR IKYEGH    ……. Justice, Court of Appeal
    
 
Between
SKYE BANK PLC    -Appellant
            
 
      And                   
MRS. JADESOLA KUDUS    -Respondent
        

 


 
    

COUNSEL:
                              
Mr Adekola Olawoye   – For the Appellant

                              
Alhaji Lasun Sanusi, S.A.N.   – For the Respondent

 

 

JUDGMENT:
          

JOSEPH SHAGBAOR IKYEGH, J.C.A.:
(Delivering the Leading Judgment): The present appeal is against the decision of the High Court of Justice of Oyo State holden at Ibadan awarding the sum of N7,779,368.80 to respondent and dismissing appellant bank's monetary counter-claim of N21,744,605.47 in its entirety.

Pleadings were settled between the parties in the court below. Paragraph 28 of the amended statement of claim pleaded the reliefs sought against appellant bank by respondent as follows:

"28. Whereof the Plaintiff claims against the Defendant as follows:-

i. Declaration that the amount entered as debit balance in the Plaintiff's Account NO PA 289 with Defendant New Gbagi Branch, Ibadan on the facilities granted to her, is not a true, correct and/or accurate reflection of her indebtedness as the same account contained erroneous debit, excessive and unwarranted charges, unorthodox deduction as was recklessly manipulated by Mr. L. K, Afolayan, the then Branch Manager.

ii. The sum of N7,779,368.80k (Seven million, Seven hundred and seventy-nine thousand, Three hundred and sixty-eight Naira, eighty kobo) being an amount refundable to the Plaintiff by the Defendant after deduction of the actual overdraft due to the Defendant from the operation of the Plaintiff's account between 21/9/1993 to 31/5/2000 made up thus:-

(a) Excessive commission on Draft  Issued, amounting to…          27,339.91

(b) Excessive interests on over-Draft amounting to…          2,795,423.57

(c) Refundable standing order Debit amounting to…          4,103,615.17

(d) Refundable unauthorized Debit Transfer amounting to…          2,700,018.77

(e) Refundable unwarranted charges Tagged "CHG, D/S"…          966,347.54

(f) Refund of Debits without prior Credits amounting to…          3,023,128.18

(g) Refundable unsubstantiated Debits amounting to…           4,571,387.69

Total Amount =             18,187,255.00

Less=                10,407,886.20

7,779,368.88

   The suit went to trial. Both sides adduced evidence sketched as follows. The respondent, a textile merchant, was at all material times a long standing customer of appellant bank operating current account number 100298 at the new Gbagi Branch, Ibadan. She obtained an overdraft facility of N1 million from appellant bank in October, 1994, attracting 21% interest, subject to finance market fluctuation. On account of the healthy operation of the account, an additional overdraft facility of N3 million was upon her request, granted to her by appellant bank. Oblivious to appellant bank, respondent had overdrawn up to N13,185,554.21 from her account between May 1995, and February, 1996.

According to evidence for appellant bank, it was alarmed by the sudden discovery of the overdrawn sum of money. It promptly notified respondent who responded by reducing the debt to N9,904,735.12.

Respondent then abandoned running the account. The debit balance on the abandoned account mounted over the years and shot to N21,744,605.47, at the close of banking business on 31.5.2000. Appellant bank wrote several letters of demand/warning to respondent and held several meetings with her to liquidate the indebtedness without fruition.

The final demand/warning notices to respondent threatening to foreclose her mortgaged landed property to recover the indebtedness, spurred her to sue appellant bank in the court below claiming the reliefs sought in paragraph 28 of the statement of claim (supra).

The appellant bank, on its own part, counter-claimed the sum of N21,744,605.47 against respondent laid in paragraph 38 thereof thus:

"38. WHEREOF the defendant by way of counterclaims against the original Plaintiff, that is: Mrs, Jadesola Kudus as follows:

(i) An order for the payment of the sum of N3 N21,744,605.47K being the total debit balance of the principal sum plus accrued interest as at 31/5/2000 of the Credit and or overdraft facility granted to the Plaintiff for  her own use by the Defendant/Counter-  Claimant which has remained unpaid despite repeated demands from the Counter-Claimant.

(ii) An order of foreclosure of the Deed of Legal Mortgage Reg. No. 47 at Page 41 in Volume 3749 of the Lands Registry, Ibadan.

(iii) Interest at the rate of 30% per annum from the 1st day of June, 2000 till judgment dated and thereafter 10% interest per annum till the judgment sum is fully liquidated.

(iv) Any other remedies which the Counter-Claimant may be entitled to in law and or equity in the circumstances of this case."

 

   The respondent alleged in the evidence given on her side that appellant bank did not give her statements of account while she operated the account. It was when the dispute sprout out that appellant bank on the request of respondent's solicitors, supplied the statements of account to her. Respondent doubted the computation of her indebtedness as reflected in the statements of account. She engaged a firm of finance experts to examine the statements of account prepared by appellant bank. At the conclusion of the exercise, the finance experts produced a written report disclosing the alleged indebtedness of N7,779,368.80 against appellant bank in favour of respondent.

At the close of evidence on both sides, the learned counsel for the respective parties addressed the court below before it gave judgment granting respondent's claim and dismissing appellant bank's counterclaim. A notice of appeal with five grounds of appeal challenging the decision of the court below was filed on 26.2.2007. By order of court granted on 7.4.09, the notice of appeal was amended incorporating four additional grounds of appeal numbered 6 to 9 in that consecutive order.

   Appellant bank's brief of argument was filed out of time on 19.11.08, and the penalty paid on 7.4.09, before it was deemed duly filed by order of court on 7.4.09. A reply brief by appellant bank filed out of time on 1.12.09, was by order of court deemed duly filed on 9.6.010

   Appellant bank raised four issues for determination from the nine grounds of appeal, dividing the issues among the grounds of appeal in this vein:

"(i) With particular reference to section 91(3) of the Evidence Act, Cap.112 Laws of the Federation of Nigeria, 1990 were Exhibits "FF" and "GG" admissible in this case?  (covers grounds No. 1, 6, and 9).

(ii) Whether the learned trial judge was right in awarding the sum of N7,779,368.80 in favour of the plaintiff/respondent when same was not strictly proved according to law being special damages (covers grounds 2, 4, and 7).

(iii) Whether the learned trial judge was right in dismissing the counter-claim of the Defendant/Appellant in view of the facts pleaded and the evidence proffered in proof of same during trial? (covers grounds 5 and 8).

(iv) Whether it was proper for the lower court to assume jurisdiction on this case when the mandatory statutory filing fee was not paid by the Plaintiff/Respondent? (covers ground 3)."

 

   Learned counsel for appellant bank, Mr. Adekola Olawole, abandoned issue (iv) (supra) in oral argument and argued the other remaining issues seriatim. Issue (iv) (supra) together with ground 3 of the notice of appeal having been withdrawn are hereby struck out at the instance of appellant bank.

Arguments in respect of issue (i) (supra) converged on the admissibility in evidence of Exhibits "FF" and "GG" made during the pendency of the proceedings in the court below, contending they were made by a person interested in the outcome of the case contrary to section 91(3) of the Evidence Act as construed in the cases of Anyaebosi v. R. T. Briscoe (Nig) Ltd. (1987) 3 NWLR (Pt.29) 84 at 107, Owie v. Ighiwi (2005) All FWLR (pt.248) 1762 at 1790 – 1791 and Akankia v. Elemo (1983) All NLR (reprint) 1 at 2 paragraphs C-J. considered together with the cases of Alashe v. Ilu (1954) 1 All NLR 390 at 397; Akibu v. Olaleye (1974) 1 All NLR (Pt.2) 344 at 356; Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt.24) 625 at 634; and section 15 of the Court of Appeal Act, 2004, on the duty of the court to expunge inadmissible evidence.

Arguments on issue (ii) centred on lack of strict proof by respondent of the adjudged sum of N7,179,368.80 as an item of special damages contrary to the decision in Imana v. Robinson (1979) 3-4 S.C. 1 at 23; that there were twenty – five important errors in the entries by 3rd P.W, called by respondent as an "expert', witness, in Exhibits "FF" and "GG" particularly at page 4 of Exhibit FF highlighted in Exhibit "GG" vis-a'-vis the entries by appellant bank in Exhibit 11, from which Exhibit "FF" purported to derive its existence totaling N703,726,344.50; another "manufactured" error was discovered at pages 20-27 of Exhibit "FF" totaling N513,390.00 when juxtaposed against the entries in the statement of account of respondent kept by appellant bank in Exhibits "T1" – "T66" as listed in Roman figures (ii), (iii), (iv), (v), (xi), (xii) and (xiv) in paragraph 503 of the appellant bank's brief of argument; that another "manufactured" entry of N104,559.83 titled "Schedule of Debit transfers" was made by 3rd P.W. at page 45 of Exhibit "FF, which is nonexistent in Exhibit "T42" which was also admitted under cross-examination by the 3rd p.w. as a typographical error; the same admission was made by the P.W.3 under cross-examination on the sum of N237,354.03 recorded in Exhibit "FF" when the actual figure should have been N237,354.01, a difference of 2 kobo with the P.W.3 conceding that in his profession accuracy of figures is very fundamental in the production of financial report such as Exhibits "FF" and "GG".

 

   Arguments on issue (ii) (supra) added that Exhibits "A – M", the central Bank of Nigeria (C.B.N.) tariffs and financial regulations and guidelines, could only be relied upon when the facts and figures of the entries in Exhibits "T1 – T66" are correctly entered in Exhibits "FF" and "GG" and, as the "manufactured" entries already referred to occurred in the making of Exhibits "FF" and "GG", the court below should not have relied on Exhibits "A" – "M" to make a case different from the one formulated by respondent for respondent, nor sift the correct entries from the "manufactured" ones vide the cases of Adeniji v. Adeniji (1972) 4 SC 10; Bakare v. Lagos State Civil Service Commission (1992) 8  NWLR (Pt.252) 641 at 593; Mcfoy v. U.A.C. Ltd (1962) AC 152 at 160; and Enabirhire and Anor. V. Atamabo (1967) NMLR 253 at 257.

   Further arguments on issue (ii) criticized Exhibits "FF" and "GG" as "shoddy, poor," and should not have been relied upon by the court below as expert evidence citing in support the case of Azu v. The State (1993) 6 NWLR (Pt.299) 303 at 311; and that respondent contradicted herself in legs (ii) and (iii) of paragraph 28 of the further amended statement of claim by praying in one breath for the court below to ascertain the amount owed her by appellant bank and in another breath by requesting for the specific sum of N7,779,368.80 as the quantum of the alleged indebtedness. Sections 135, 136 and 137 of the Evidence Act Cap.112 Laws of the Federation of Nigeria, 1990, and the case of Omoborinola II v. Military Governor of Ondo State were cited in summation.

 

   Learned counsel for appellant bank argued in respect of issue (iii) (supra) that parties are bound by the terms and conditions of their contract vide NSC (Nig) Ltd. v. Innis Palmar (1992) 1 NWLR (Pt.218) 424 so respondent should be bound by the terms and conditions of her contractual relationship with appellant bank; that the oral evidence of the D.W.1 and D.W.4 taken together with Exhibits M, BB, EE, JJ1, JJ2, KK1, KK2, KK5, KK6, KK7, LL1, LL3, NN1 – NN4, O, Q, QQ, R, S, T – T66, V, W, X, Y1 – Y16 and Z1 – Z3 considered along with the cases of Uredi v. Dada (1988) ANLR 214 at 222, Akaninwo v. Nsirim (2008) All FWIR (Pt.410) 510 at 663, Bank of the North Ltd. v. Yau (2001) 10 NWLR (Pt.721) 408 at 434, Cappa and 'D' Albefto Ltd. v. Akintilo (2003) 9 NWLR (Pt.824) 49 at 70, N.S.C. (Nig) Ltd. (supra), Buhari v. Obasanjo (2005) 7 S.C. (Pt.1) 1 at 10, Thor Ltd. v. First City Merchant Bank Ltd. (2005) All FWLR (Pt.274) 217 at 233, Shell BP Petroleum Co. Ltd. v. His Highness Pere-Cole (1978) 3 S.C. 183 at 194 and section 90(f) and (g) of the Evidence Act, established the counter-claim of N21,744,605.47 as pleaded in paragraphs 13-17, 19-20,22, and 33-36 of the statement of defence and counter-claim.

It was also submitted on issue (iii) (supra) that respondent did not substantiate the allegation in her evidence that D.W.2 manipulated her current account kept with appellant bank when such allegation is a criminal offence requiring particularization and proof beyond reasonable doubt under section 138(1) of the Evidence Act read along with the case of Yusufu v. Obasanjo (2004) FWLR (Pt.190) 1383 at 1405; and that the court below dealt "unfairly and improperly" with the counterclaim by its failure to weigh the evidence which preponderated on appellant bank's side vide the cases of Araba v. Elegba (1986) 1 NWLR (Pt.16) 333. 342 and Incar (Nig) Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 453 at 454, consequently this court should evaluate the evidence and enter judgment in favour of appellant bank on the counterclaim following the case of Adenuga v. Okelola (2008) All FWLR (Pt.398) 292 at 305.

 

   Respondent's brief of argument was settled by Alhaji Lasun Sanusi, learned S.A.N. It was filed on 12.6.09, and was deemed duly filed on 27.10.09, by order of court pursuant to an application for enlargement of time to do so granted respondent on the same date. A list of authorities dated 6.12.2010, was submitted by respondent's learned senior counsel. A preliminary objection against the competency of grounds 6, 7, 8 and 9 of the notice of appeal was raised in the respondent's brief of argument. Particulars III and IV of ground 6 were alleged to be at variance with and strange to the ground of appeal and should be struck out on the authorities of Mba v. Agu (1999) 12 NWLR (Pt.629) 1 at 12 and General Electric Company v. Akande (1999) 1 NWLR (Pt.588) 532 at 540; respecting ground 7 it was contended that the particulars therein are extraneous to the part of the judgment alleged to be erroneous as they related to admissibility or service of Exhibits FF and GG, whereas, the passage quoted from the judgment relates to whether there were sufficient discrepancies to nullify the reports in Exhibits FF and GG; also, that there is no ground the court below granted unclaimed reliefs and that particular VII thereof respecting manipulation of account is strange to the ground of appeal.

 

   The preliminary objection agitated in respect of ground 8 that the particulars alleged lack of evaluation of evidence, while the ground related to specific finding of fact; and in respect of ground 9, it was contended that the particulars are not in consonance with it, as stare decisis is not discernable from the portion of the judgment quoted in the ground of appeal contrary to the decision in Anammco v. First Marina Trust Ltd. (2000) 1 NWLR (Pt.540) 309 at 317, consequently the preliminary objection should succeed and the affected grounds of appeal struck out.

On the merits of the appeal, respondent submitted three issues for determination drafted as follows:

'1. Whether the lower court was wrong in admitting exhibits FF & GG which were made by PW3, banking expert from operations reflected in the statement of accounts, exhibits  T1-T66 supplied by the Appellant after filing of the action. The issue covers grounds 1, 6 and 9.

2. Whether the learned trial judge was wrong in giving judgment in favour of the Plaintiff/Respondent for refund of sum of  N7,779,368.80 (Seven Million, Seven Hundred and Seventy Nine Thousand, Three Hundred and Sixty Eight Naira Eighty Kobo) found to be balance of products of excessive interests, various wrongful charges in violation of Central Bank regulations and prudential guidelines after deducting Respondent's indebtedness to Appellant. Or Whether  Plaintiff/Respondent's account was kept in line with C.B.N. regulations and Banking guidelines.

3. Whether the Learned Trial Judge was wrong in dismissing the counter claims of the Defendant/Appellant for failure to prove same",

 

   It was advocated on issue I (supra) that the maker of Exhibits FF and GG, the P.W.3 (who testified as an 'expert' under Section 57 of the Evidence Act), was not a party to the proceedings, nor did the witness have any financial interest in the outcome of the proceedings having merely rendered remunerated professional services to respondent in making Exhibits FF and GG on the database supplied by appellant bank to respondent in Exhibits T1-T66 which were cross-checked by the witness before producing Exhibits FF and GG, therefore section 91 (3) of the Evidence Act was not infringed vide the cases of Nitel v. Ogunbiyi (1992) 7 NWLR (Pt. 255) 543 at 564, Gbadamosi v. Kabo Travels Ltd. (2001) 8 NWLR (Pt. 668) 243 at 257, Mrs. Elizabeth Anyaebosi v. R.T. Briscoe (Nig) Ltd. (1987) 3 NWLR (Pt. 59) 84 at 99, 109, Higher Grade (Higrade?) Maritime Services Ltd. v. First Bank Ltd. (1991) 1 NWLR (Pt.157) 290 at 312-313 and Owena Bank Plc v. Olatunji (2002) 13 NWLR (Pt. 781) 259 at 332.

   Issue 2 (supra) contended that the refund of N7,779,368.80 ordered by the court below against appellant bank arose from wrong debit entries by appellant bank in respondent's current account which violated the Central Bank of Nigeria monetary and credit policy guidelines and prudential guidelines on bankers. Tariffs (hereafter called CBN regulations or guidelines) in Exhibits A-M captured by P.W. 3 in his expert report in Exhibits FF and GG depicting respondent's account with appellant bank was not kept by the latter in line with the CBN regulations as specified or itemised by the P.w.3 into seven separate heads embodied in his report in Exhibits FF and GG resulting in cumulative wrongful debit entries of N18,187,255.00 which, after deducting the actual amount of N10,407,896.20 not N21,751,744.10 alleged by appellant bank from the N18,187,255.00 left the respondent, with the credit balance of N7,779,368.80 adjudge in her favour by the court below; that the P.W.3 discovered and stated in his report that inflow in respondent's account was N103,726,344.50, while the withdrawals or total outflow was N114,134,230.70; and that his evidence was not discredited under cross-examination, consequently respondent made out specific proof of her claim as held by the court below vide Ayoke v. Bello (1992) 1 NWLR (Pt. 218) 380 at 404.

   Still submitting on issue 2 (supra), respondent learned senior counsel in response to appellant bank's submission on "manufactured" data by the P.W.3 in part of Exhibits FF and GG pointed out in argument that from Exhibits T1-T66 items (i-v) listed in appellant bank's brief of argument using teller numbers instead of cheque numbers, item (v). showed a difference of N50.00 in appellant bank's favour; item (vii) showed N860 difference in appellant bank's favour and in respect of the other items (viii) N880, (ix) N110, (x) N60, (xiii) N150, (xiv) N500, (xvii) N120, (xviii) N00.1k, (xix) N320, (xx) N18, (xxi) N450 and (xxv) N00.2k; item (xxiv) recorded debiting of respondent account on cheque 00016869 in Exhibit T33 which was not, according to respondent's contention, recorded twice in Exhibits FF and GG; that most of what respondent's learned senior counsel called clerical or typographical errors favoured appellant bank as stated in the unchallenged evidence of P.W.3 at page 197 of the printed record of appeal; and that aside the clerical errors, there was the flouting of the CBN regulations as confirmed in Exhibits FF and GG.

   Submitting further on issue 2 (supra), respondent's learned senior counsel stated that the clerical errors amounted to N18,187,255 which could have been deducted from the illegal charges and interest thereon vide Anyaebosi v. Briscoe Nig. Ltd. (supra) at page 100; that there is no evidence to establish any clerical error of N61,972.00 or N12,345.00 erroneously canvassed by appellant bank in paragraph 5.04 of the appellant bank's brief of argument, and learned counsel for appellant bank's submission cannot supplement or substitute lacking evidence vide Yoye v. Olubode (1974) 10 S.C. 209 at 215; that the D.W.4 who prepared Exhibit U agreed there was excessive interest of N1,086,269.36, also, that appellant bank was not supposed to charge N4,571,387.69k on unsubstantiated draft; that the CBN regulates interest rate on banking transactions, therefore respondent was entitled by the CBN regulations and at common Law to recover interest on excessive charge from appellant bank vide the case of NGSC v. NPA (1990) 1 NWLR (Pt.129) 741 at 748; and that appellant bank did not dispute the calculations based on the CBN guidelines in Exhibits FF and GG by providing contrary calculations, therefore the court below was right to rely on Exhibits FF and GG to award the said monetary claim of respondent, and that it was proper to lay the claim in the alternative vide Olorunfunmi V. Saka (1994) 2 NWLR (Pt.324) 23 at 39.

   It was advocated on issue 3 (supra) that Exhibits T1 – T66 relied upon by appellant bank for the counter-claim was not a true account of respondent's statement of account as found by the court below at page 317 of the record of appeal which specific finding was not appealed against; that the statements of account in Exhibits T1 – T66 alone is insufficient to establish indebtedness vide Ogolo v. IMB (Nig) Ltd. (1995) 9 NWLR (Pt.419) 314, 324; and that going by the findings of the court below that respondent proved her claim convincingly and credibly, Exhibits T1 – T66 no longer held ground.

On the criticism by appellant bank's learned counsel that the court below did not properly evaluate the evidence adduced before it, learned senior counsel contended that the particular evidence allegedly improperly evaluated was not identified contrary to the decision in the cases of Dakul v. Dapal (1998) 10 NWLR (PT.517) 588 and Edet v. Eyor (1999) 6 NWLR (Pt.605) 21 at 27-28, 29.

   In response to the submission that letters of demand and letters of response to the demand written by respondent admitted the indebtedness in dispute, learned senior counsel submitted that a person who admits what he does not know cannot be held liable on the admission vide Seismograph Services Nig. Ltd. v. Eyuafe (1976) 9-10 S.C. 135 at 149; that the statements of account in Exhibits T1 – T66 were supplied to respondent by appellant, bank after the suit was filed and cannot on that ground be evidence that respondent agreed with the interest rate used therein by appellant bank, all the more so Exhibits T1 – T66 were found unreliable by the court below.

It was also submitted on issue 3 (supra) that the D.W.1 and D.W.4 called by appellant bank in respect of the counter-claim stated they knew nothing about the way respondent's account with appellant bank was operated, leaving evidence for respondent largely unchallenged and commended acceptance by the court below vide Imana v. Robinson (1979) 3-4 S.C. 9; also, the exemption clause on top of Exhibits T1 – T66 should not avail appellant bank, as it does not form part of the contract between the parties respecting the opening of the account by respondent, especially as the statements of account were supplied by appellant bank to respondent after the action was filed, therefore appellant bank should not be allowed to benefit from its own wrong vide the case of Olanudu v. Temiye (2002) 2 NWLR (Pt.750) 21 at 36.

   Respondent's brief canvassed finally on issue 3 (supra) that manipulation of the account was proved by "wrongful charges, excessive interests and unsubstantiated charges" stated in Exhibits FF and GG coupled with the evidence of the D.W.2 on his disengagement from the employ of appellant bank arising from the manipulation of the account while he was in charge of the branch the account was kept which was corroborated by respondent's evidence, accordingly, it was contended that what is admitted should require no further proof vide Ayoke v. Bello (supra) at page 395.

   By an order of court on 9-6-010, appellant bank's reply brief dated 1-12-09, and filed out of time on 2-12-09 was deemed properly filed on the 9-6-010. The reply brief complained preliminarily that respondent's brief was filed out of time without payment of the requisite filing fees and the penalty for late filing of the document, therefore, the brief should be discountenanced and struck out vide Akpaji v. Udemba (2009) 2-3 SC (Pt.11) 1 at 27 – 28.

 

   On the merits, the reply brief contended that paragraphs 7, 8, and 9 of the amended statement of defence and counter-claim and the evidence of the 1st D.W, 2nd D.W, and 3rd D.W, at pages 205 – 228 of the record disputed the anomalies itemized in Exhibits FF and GG.

Regarding the challenged grounds of appeal, it was contended in the reply brief that the court below referred to the evidence of the 4th D.W. while making a finding on Exhibit U without showing the relevance or otherwise of 4th D.W.'s evidence to Exhibit U before it concluded that Exhibit U had no probative value showing particulars numbers III and V are relevant to ground 6 of the notice of appeal, or, in the alternative, even without particulars III and V, the other particulars I and II can sustain ground 6, vide, the later case of Adedeji v. sonuga and others (1999) 13 NWLR (pt. 635) 355 at 361, coming after the General Electric Company case (supra).

   The reply brief contended on the status of ground 7 of the notice of appeal that the discrepancies in Exhibits FF and GG referred to by the court below in its judgment at page 317 of the record formed the basis of ground 7; while it was argued in respect of ground 8 of the notice of appeal that it was built on leg 1 of paragraph 28 of the amended statement of claim which pleaded manipulation of respondent's account, not the breach of CBN guidelines by appellant bank, but evidence on it was not evaluated in respect of the counter-claim as the court below did in respect of respondent's claim.

 

   It was contended in the reply brief on ground 9 of the notice of appeal that particulars II, III, IV, V, and VI thereof were on inadmissibility of evidence, Exhibits FF and GG, under section 91 (3) of the Evidence Act and the case law in support of it in contrast with the holding of the court below without offending order 6 rules 1 (2) (3), 3 and 5 of the Court of Appeal Rules) 2007, read with the cases of Hambe v. Hueza (2001) 2 SC 26 at 35, Ukoong v. Commissioner for Finance and Economic Department. Akwa Ibom State (2007) ALL FWLR (pt. 350) 1246 at 1264 and Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285.

 

   On whether 3rd P.W. had financial interest in the outcome of the action, the reply brief argued that he had "financial or pecuniary and/or monetary interest" to protect as an independent contractor as defined in Black's Law Dictionary (sixth edition) at 770; that there was contractual relationship between 3rd P.W. and respondent supported by consideration in form of remuneration, therefore 3rd P.W. had monetary interest in the outcome of the case to render his evidence suspect and inadmissible under section 91 (3) of the Evidence Act.

Responding to issue 2 (supra) the reply brief contended that paragraph 28 (1) of the amended statement of claim did not plead the CBN guidelines on which the court below based its judgment contrary to the case of Ekpenyong v. Nyong (1975) 2 SC 71 at 80, to the effect that a court should not award what was not claimed. The cases of Metalimpex v. A. G. Leventis and Co. (Nig) Ltd. (1977) ANLR 79 at 80, George and Others v. Dominion Flour Mills Ltd. (1963) 1 ANLR 71 at 77 and Overseas Construction Company (Nig. Ltd. v. Greek (?) Enterprises (Nig) Ltd. (1985) 12 SC 158 at 163 were cited in the reply brief to the effect that parties are bound by their pleadings and respondent having not pleaded the CBN guidelines in paragraph 28 (1) of the amended statement of claim, she could not rely on it.

   It was also contended in the reply brief that in addition to Exhibits T1-T66 appellant bank also relied on Exhibit RR totaling respondent's indebtedness to N21,744,605.47k; that ground 7 of the notice of appeal answered respondent's submissions in paragraph 7.03 of her brief; submitting finally in response to paragraph 7.04-7.11 of respondent's brief, appellant bank's reply brief contended that the evidence for the counter-claim was not put in an imaginary scale and assessed by the court below before dismissing the counter-claim, which, according to appellant bank, occasioned a miscarriage of justice.

Paragraph 1.02 of the reply brief on the filing of respondent's brief out of time without payment of filing fees and the requisite penalty for the late filing of the process was withdrawn by appellant bank's learned counsel in oral argument on the appeal on 18-1-011, and is hereby struck out at appellant bank's instance.

Particulars (iii),and(iv), of ground 6 together with ground 6 are copied below for clarity in respect of the objection raised against them.

"iii, The mere stating the evidence led by DW4 during the trial as done by the learned trial Judge without more does not amount to an evaluation, a review, and placement of probative value on same as required by law, the omission to so do has occasioned a miscarriage of justice in this case.

iv The learned trial Judge was bias against the Appellant in this case by placing much emphasis on the evidence against the Appellant while at the same time overlooking those in its favour."

 

   A calm look at particulars (iii) and (iv) (supra) vis-a-vis the other portion of ground 6 (supra) indicates harmony in the whole ground of appeal with its other particulars on the accusation of non evaluation of the evidence of the 4th D.W by the court below after it found Exhibit U tendered by the witness worthless. I do not, with deference, see any blemish in the particulars of ground 6 (supra).

Ground 7 of the notice of appeal is, also, for ease of appreciation copied below:

"7 The learned trial Judge erred in law when she held as follows:-

"The discrepancies under reference, I note are not voluminous enough to discredit the evidence of PW3. Apart from the discrepancies shown by the Defendant's Counsel, the Defendant has also not led evidence in proof of the fact that they have complied with the Central Bank of Nigeria regulations, which is the main issue before the court.

 

   I adopt my submissions on issue I and add further that in view of the fact that I had stated above that the Plaintiff has proved leg 1 of their statement of account supplied to the Plaintiff by the 1st Defendant could not therefore have been a true account of the Plaintiff's banking transaction with the Defendant I therefore also hold that the Plaintiff has been able to prove issue 2.

 

PARTICULARS OF ERROR

(i) Contrary to the above holding, the discrepancies referred to by the learned trial Judge in Exhibits "FF" and "GG" respectively numbering 25 are weighty, voluminous and formidable enough to vitiate the validity of the so-called expert report which Exhibits "FF" and "GG" purported to be.

(ii) The said Exhibits "FF" and "GG" being documents made during the pendency of this suit are statutorily inadmissible no matter how relevant to the case of the Plaintiff/Respondent.

(iii) Contrary to the said holding of the learned trial Judge, the Appellant has no duty in law to give evidence in rebuttal of the allegation of non-compliance with the Central Bank of Nigeria regulations in this case since the admissibility or otherwise of Exhibits "FF" and "GG" have been faulted by the Appellant and as such the burden of proof remains static.

(iv) In the absence of Exhibits "FF" and "GG", there is no credible, cogent and convincing evidence led by the Plaintiff/Respondent in strict proof of her claims at the lower court being special damages.

(v) Leg 1 of paragraph 28 of the Amended Statement of Claim outlined at page 289 of the record is to the effect that the debit balance in the Plaintiff account No. PA 289  with the Defendant is not a true, correct and  accurate reflection of her account contrary to the above holding of the lower court.

(vi) Instead of declaring the true and correct indebtedness of the Plaintiff/Respondent to the Appellant in accordance with the relief contained in leg 1 of the Amended Statement of Claim, the lower court awarded to the Respondent a relief not claimed by her when the court is not a charitable organization.

(vii) There was not credible and cogent evidence led during the trial to establish the allegation that Mr. L. K. Afolayan, DW2 in this case recklessly manipulated the account of the Plaintiff/Respondent during the trial which evidence the lower court neither evaluated, reviewed nor placed probative value upon in its judgment."

 

   The issue of the seriousness of the alleged discrepancies in some of the entries in Exhibits "FF" and "GG" was agitated by appellant bank and, the court below made a finding on them which the appellant bank is complaining in ground 7 (supra) was faulty; also, the grouse in ground 7 (supra) was that respondent did not base her case as pleaded on the CBN guidelines to warrant the court below to hold that she proved her case on issue 2 discussed before it based on the CBN guidelines. Again, with deference, I see no merit in the objection that particulars (i-iv) of ground 7 (supra) are extraneous, to part of the judgment of the court below they seek to attack. There is, however, merit in the objection that particular (vii) of ground 7 (supra) is strange and extraneous as it did not flow from the ground of appeal and part of the judgment of the court below it purports to challenge.

Ground 8 of the notice appeal is, for ease of appreciation, copied below.

'8 The learned trial Judge erred in law when she held as follows:-

"Without wasting time, having earlier on in the course of writing this judgment declared that the Plaintiff's account with Defendant was not properly kept in line with the Central Bank of Nigeria's Monetary Policy Guidelines and Bankers' Tariffs and having equally ordered that all wrong entries made in the said account should be re-credited by proper calculation in respect of the account in line with central Bank of Nigeria Regulations, the counter claim therefore fails and is accordingly dismissed.

 

PARTICULARS OF ERROR

(i) The above holding is perverse having been made without reference to the evidence led in my in proof of the counter-claim in this case being a separate claim, entirely different from the main claim.

(ii) The Plaintiff/Respondent did not claim that her account was not kept by the Defendant in line with the Central Bank of Nigeria Monetary Policy Guidelines and Bankers' Tariffs but that it was recklessly manipulated by DW2 an allegation which the Plaintiff failed woefully to prove during the trial with credible, cogent and convincing evidence.

(iii) Contrary to the said holding, the Defendant/Appellant through DW1 led cogent and credible evidence in proof of the Appellant's counter-claim which evidence the lower court neither review, evaluate, appraise nor probative value placed on them the omission to so do has occasioned a miscarriage of justice.

(iv) The said holding is bereft of any known principle of law regarding the evaluation, review and appraisal of evidence in relation to a counter-claim in a proceeding before a trial court".

   In my respectful opinion, findings of facts and evaluation of evidence are one side of the same coin, so I do not, again, with deference, see merit in the objection against ground 8 (supra).

Ground 9 of the notice of appeal, also, reads:

The learned trial Judge erred in law when she held thus:-

"The Defendant's Counsel has stated that the Exhibits tendered by him i.e. Exhibits "FF" and "GG" should not be relied upon and should be expunged from the record of this court as they were made during the pendency of this case. In the case of GBADAMOSI VS. KABO TRAVELS LTD. (2001) 8 NWLR (Pt 668) Page 243 at 257 ratios 17 & 17 the Court of Appeal, on whether the report of expert can be excluded by Section 91 (3) of the Evidence Act stated thus:-

   ____ In the instant case, applying the above stated principles Exhibits "FF" and "GG" being the report of an expert in line with the decision in the GBADAMOSI VS. KABO TRAVELS LTD case (supra), cannot be ignored based on the fact that it was made during the pendency of this case. For this court to form an opinion on such a technical matter as this, this court has no choice but to fall on the opinion of an expert, PW3, I hold, is an expert in his own field. I therefore also hold that Exhibits "FF" and "GG" being reports of an expert are very relevant to this case and shall be relied upon in the writing of this judgment."

 

PARTICULARS OF ERROR

(i) Contrary to the above holding, Exhibits "FF" and "GG" were not tendered by the Defendant's counsel but were tendered and admitted through PW3 as shown at page 107 inspite of a stiff opposition from the defence counsel.  

(ii) The learned trial Judge violated the principle of Stare Decisis by jettisoned the decision of the supreme court in OWIE vs. IGHIWI (2005) All FWLR (pt 248) 1762 pages 1790-1791 in preference to the Court of Appeal decision in GBADAMOSI v. KABO TRAVEL LTD (supra) on the interpretation of Section 91 (3) of the Evidence Act.

(iii) Exhibits "FF" and "GG" are not admissible in law by virtue of Section 91(3) of the Evidence Act.

(iv) It is trite that where a document like Exhibits "FF" and "GG" are statutorily not admissible in a court proceedings, the issue of their relevancy is of no moment.

(v) The above holding is a review of the ruling given on the said Exhibits "FF" and "GG", at page 167 of the record after the learned trial Judge had opined that she was functus officio.

(vi) The said holding is perverse having been  based on wrong principle of law thereby occasioning a miscarriage of justice.

 

   Stare decisis, a latin expression, means standing by things decided or to quote from the apt definition in Black's Law Dictionary (Eighth Edition) at page 1443:

"The doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation….."

 

   What part of the particulars of ground 9 (supra) appears at a glance to convey is that the court below should have followed the higher decision of the supreme court in the case cited therein, not the court of Appeal decision it used as stated in the ground 9 (supra), so in effect a part of ground 9 (supra) touches on the doctrine of precedent or stare decisis.

Again, with deference, I see no merit in the objection on ground 9 (supra).

The above grounds, save particular (vii) of ground 7, do not offend the basic requirements of order 6 rule 3 of the Rules of this court. They are clear and are on face value germane to the issues in dispute on the appeal and to borrow the words of the Supreme Court in the case of Hambe v. Hueza (supra) at page 35 cited by appellant bank's learned counsel:

"The prime purpose ….. is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and, consequently, of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form."

The objections are, accordingly, overruled save for particular (vii) of ground 7 which is hereby struck out on the sustained objection of learned senior counsel for respondent.

Issue (i) (supra) is identical with issue (1) (supra) of appellant bank and respondent's issues for determination respectively, so issue (i) (supra) of appellant bank shall be followed in this discourse. Issue 2 of respondent's issues for determination (supra) is broader than issue (ii) of appellant bank (supra) and relates to the decision appealed against as contained in the grounds of appeal on issue (ii) (supra), so issue 2 of respondent's issues for determination shall be followed in this discourse. Issue (iii) and issue 3 of appellant bank and respondent's issues for determination (supra) respectively are similar, so issue (iii) (supra) shall be followed in this discourse. The issues will be considered seriatim.

Section 91(3) of the Evidence Act alleged to have been breached by the court below in the admissibility of Exhibits FF and GG in evidence and, which is the crux of issue (i) (supra) reads:

"Nothing in this section shall render admissible as evidence any statement made by a person interested at the time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish."

Exhibits FF and GG were made by the 3rd P.W. in these circumstances arising from the established evidence: Respondent engaged the professional services of a banking and finance consultancy firm called Amien Consultant Limited to cross-check the accuracy or otherwise of the debit entries made by appellant bank in the statements of account supplied to respondent in Exhibits T1 – T66 during the pendency of the suit and the exercise was conducted by the 3rd P.W. who gave evidence as an expert in that field and was treated as such by the court below producing Exhibits FF and GG in the process. It is therefore settled, in my view, that 3rd P.W. made Exhibits FF and GG in his professional capacity as an expert in that field of human endeavour under section 57 of the Evidence Act akin to the reports produced by the licensed surveyor in the case of Nitel v. Ogunbiyi (supra), cited by learned senior counsel on the exclusion of section 91(3) of the Evidence Act (supra) from such expert reports.

Also, there is uncontested evidence that 3rd P.W merely offered his professional services in the preparation of Exhibits FF and GG based not on his own information, but on cross-checking the database provided by appellant bank in Exhibits T1 – T66. 3rd P.W. was not, as the shown by the evidence in the printed record, under the influence or beck and call of respondent in the preparation of Exhibits FF and GG to suggest they might have colluded to manufacture or fabricate figures to distort the truth and correctness of the debit entries in the current account of respondent kept with appellant bank for the purpose of respondent having an edge in the pending litigation over appellant bank for the material benefit of 3rd P.W. Part of 3rd P.W.'s evidence under cross examination said that much thus:

"All our findings are based on Exhibits T1 – T66 and all other letters and documents, all of which emanated from the Defendant and submitted to our firm by the plaintiff. I came to court to defend Exhibit FF and GG. I have only provided a service for my client.'

so the impression given that the 3rd P.W. went behind to fabricate his own documents for the purpose of deliberately twisting the truth to assist the outcome of the litigation in favour of respondent is, with respects, untenable. In other words and in my respectful view, Exhibit FF is, according to the evidence on record, sanitised version of Exhibits T1 and T66, while Exhibit GG is the sanitised version of Exhibit U.

Further, the marathon cross-examination of 3rd P.W. spanning ten type-written pages did not establish that the 3rd P,W. had any financial or material interest in the outcome of the suit at the time he prepared Exhibits FF and GG as to have been tempted to depart from the truth in the preparation of the said documents. In the absence of such evidence, it would be mere surmise to impute financial or material interest on 3rd P.W. in the Outcome of the proceedings at the time he made the said documents.

The key element in section 91(3) of the Evidence Act (supra) is the pecuniary, material or financial interest the maker of the document may have in the outcome of the proceedings at the time he made the document which, from the available evidence in the printed record, the 3rd P.W. did not possess at the time he made Exhibits FF and GG in his professional capacity – see Anyaebosi (supra) cited by respondent's learned senior counsel, where the great jurist Karibi-whyte, J.S.C., held inter-alia at page 109:

"…. But in my opinion the disqualifying interest referred to in section 90(3) (now 91(3) of the Evidence Act, can only be a financial interest in the outcome of the proceedings."

see also the fairly recent supreme court case of Nigeria social Insurance Trust Fund Management Board v. Klifo Nigeria Limited (2010) 13 NWLR (pt.1211) 307 at 324 thus,

"I, think that in resolving this matter one has to examine the provision of section 91(3) (supra) in the context of two crucial phrases, i.e. who is, "a person interested". And "when proceedings were pending or anticipated". As regards the phrase "a person interested" I agree with the respondent that the phrase has been examined in the case of Evon v. Noble (1949) 1 KB 222 at 225 where a person not interested in the outcome of an action has been described as, "a person who has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest but completely detached, judicial, impartial, independent". In other words, it contemplates that the person must be detached, independent ,and non-partisan and really not interested which way in the context the case goes.

Normally, a person who is performing an act in his official capacity cannot be a person interested under section 91(3). I think the phrase "a person interested" ever moreso has been quite definitively put in the case of Holton v. Holton (1946) 2AER 534 at 535 to mean "a person who has a pecuniary or other material interest in the result of the proceeding" – a person whose interest is affected by the result of the proceedings, and, therefore, would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an  interest in the legal  sense, which imports something to be gained or lost".

See again H.M.S. Ltd. v. First Bank (1991) 1 NWLR (pt.167) 290 at 312-313.

The definition of independent contractor in Black's Law Dictionary (supra) cited by learned counsel for appellant bank is, with deference, in applicable to the construction of section 91(3) of the Evidence Act. The said definition as captured in Black's Law Dictionary (Eighth Edition) page 785 which is later in time than the sixth edition of the works and remarkably different reads:

"One who is entrusted to undertake a specific project but who is left free to do the assigned work and to choose the method for accomplishing it. It does not matter whether the work is done for pay or gratuitously' Unlike an employee, an independent contractor who commits a wrong while carrying out the work-does not create liability for the one who did the hiring."

In contrast, the definition used to canvass the issue under section 91(3) of the Evidence Act by appellant bank's learned counsel reads:

"Generally one who in exercise of an independent employment, contracts to do a piece of work according to his own methods and is subject to his employer's control only as to end product or financial result of his work."

The latter definition perforce yields to the former, as the eighth edition of the works must be taken to be the latest vis-a-vis the sixth edition of the works. The net result is that the 3rd P.W. as an independent contractor within the definition given in the eighth edition of the said works (supra) was not controlled by respondent in preparing Exhibits FF and GG, as no speck of evidence appeared in the record to establish such control.

 

   I respectfully conclude on issue (i) that the 3rd P.W. and maker of Exhibits FF and GG was not an "interested person" within the context of section 91(3) of the Evidence Act (supra) at the time he made the said documents. If the court below was, accordingly, right to admit Exhibits FF and GG in evidence. Issue (i) (supra) is resolved against appellant bank.

   Several arguments were made under issue 2 (supra). First was whether reliance on the CBN guidelines was pleaded by respondent in respect of the operation of her current account kept with appellant bank. paragraph 7, 15 and 28 (i) and (ii) of the amended statement of claim (supra) pleaded the CBN guidelines as follows:

"7 The plaintiff's account No. PA 289 was being operated to her detriment by Mr. L. K. Afolayan and his subordinate Staff working with him, and charging interests at a rate of percentage above the agreed 21% and for all the period the defendant failed to supply the Plaintiff with Statement of Account to make her know the position of her account and at what rate of interests and with other bank charges."

"15 Because of the reckless operation of her account and the unilateral, arbitrary charging of interests even when the account became non-performing and the refusal by Mr. L. K. Afolayan to supply her with the monthly Statements of Account, the Plaintiff made several complaints to the Management Staff of the Defendant which include Mr. Olupitan (Managing Director) and Mr. Odubanjo, at its Head office against Mr. L. K. Afolayan and his subordinate staff, for recklessly manipulating her account to her retirement and against banking practice and Banking Laws, in particular Bankers Tariff and Monetary Policy Guidelines as approved by the Central Bank of Nigeria. The Plaintiff pleads and will rely on the Banker's Tariff and Monetary Policy Guidelines from the date of operation of her account up to date i.e. 25/5/2000.

28. Whereof the Plaintiff claims against the Defendant as follows:-

(i) Declaration that the amount entered as debit balance in the Plaintiff's Account No. PA 289 with Defendant New Gbagi Branch, Ibadan on the facilities granted to her, is not a true, correct and/or accurate reflection of her indebtedness as the same account contained erroneous debit, excessive and unwarranted charges, unorthodox deduction as was recklessly manipulated by Mr. L.K. Afolayan, the then Branch Manager.

(ii) The sum of N7,779,368.80k (Seven Million, Seven Hundred and Seventy-eight Naira, Eighty Kobo) being an amount refundable to the Plaintiff by the Defendant after deduction of the actual overdraft due to the Defendant from the operation of the Plaintiff's account between 21/9/1993 to 31/5/2000 made up thus:-

(a) Excessive commission on Draft Issued, amounting to…          27,339.91

(b) Excessive interests on over- Draft amounting to…          2,795,423.57

(c) Refundable standing order Debit amounting to…          4,103,615.17

(d) Refundable unauthorized Debit Transfer amounting to…          2,700,018.17

(e) Refundable unwarranted charges Tagged "CHG.D/S"…          966,341.54

(f) Refund of Debits without prior Credits amounting to…          3,023,128.19

(g) Refundable unsubstantiated Debits amounting to…           4.571,387.69

Total Amount =             18,187,255.00

Less                10,407.886.20

7,779,368.80

 

   Appellant bank's contention that the CBN guidelines were not pleaded and the court below awarded to respondent what she did not claim as emanating from the CBN guidelines is, accordingly, untenable.

Respondent pleaded and based her case on the CBN guidelines which were admitted in evidence through the 1st P.W on subpoena from the CBN without objection as Exhibits A-M. The 1st P.W. was also not cross examined by appellant bank. I would discountenance the said argument.

The second contention was that the 3rd P.W. admitted some errors in the items entered in Exhibits FF and GG and further agreed that the errors were liable to impeach the documents prepared by him. In order to have a complete picture of what 3rd p.w. said on the errors, it is necessary to copy below his evidence on the issue:

"In my profession it is correct to say that accuracy of figures are very fundamental in the production of financial report as produced in Exhibits FF and GG.

 

   I don't agree with your that (p.195) is (missing) in a financial report is discovering to have some wrong calculation on figuring computed in it that such report cannot be relied upon." (my emphasis).

The said piece of evidence taken together cannot, in my considered view, be said to be an admission that the errors in question invalidated Exhibits FF and GG.

   Regarding the third contention, it is clear in the record that the 3rd p.w. demonstrated in the court below how he arrived at the data in Exhibits FF and GG and, he was extensively cross-examined on some aspects thought necessary by appellant bank's learned counsel in the court below to bring out what appellant bank felt were errors in the data contained in Exhibits FF and GG, therefore it is difficult to appreciate the contention of appellant bank's learned counsel that the court may require a surgical exercise to excise the errors complained of from the documents, when by the advocacy of appellant bank's learned counsel in the court below the errors were identified and mapped out in the course of trial in open court, and, what was left for the court below to do was to separate the successfully faulted entries from the unaffected entries and enter judgment in respect of the unaffected entries (sort of separating the sheep from the goats, if I may so put) – see west African Breweries Ltd. v. Savannah Ventures Ltd. (2002) 5 SCNJ 259, and Arabambi and Another v. Advance Beverages Industries Ltd (2005) 12 SCNJ 331.

 

   The fourth contention against the use of the CBN guidelines to shed off the alleged excessive bank tariffs charged by appellant bank on respondent's account overlooks the fact that by section 15 of the Banking Act which was considered in the cases of U.B.N. Ltd. v. Madam Salami (1998) 3 NWLR (Pt.543) 538 at 544 and U.B.N. Ltd. v. Sax (1994) 8 NWLR (Pt.361) 150 at 165, the CBN is empowered to issue the guidelines in Exhibits A-M to finance houses for the maintenance of high financial ethical standard by forbidding them from charging grasping or arbitrary tariffs/interest rate on their customers' accounts.

 

   The fifth contention that Exhibits FF and GG were shoddily prepared and should not carry weight because some errors were detected therein under cross-examination neglects the fact that 3rd P.W. was not shaken under cross-examination respecting the other substantial portions of the entries in Exhibits FF and GG, and that the errors detected were explained by 3rd P.W. to the satisfaction of the court below that they arose from typographical entries, so the uncontradicted portions of Exhibits FF and GG stand in favour of respondent and, as rightly submitted by respondent's learned senior counsel with reliance on Anyaebosi v. Briscoe (supra) at page 100, a court can award less than has been claimed and proven.

 

   It was also contended that respondent's claims were in the alternative making them contradictory, but I am in full agreement with respondent's learned senior counsel who placed reliance on Olorunfemi v. Saka (supra) that a party is at liberty to frame claims in the alternative.  

The final contention under issue 2 (supra) was strict proof. Exhibits FF and GG upon which respondent's case in the court below rested were, on the unchallenged evidence in the printed record, prepared by 3rd P.W. and served on appellant bank in advance before they were tendered and admitted in evidence as Exhibits. For clarity, the 3rd P.W. gave the following unchallenged pieces of evidence:

"After duly cross-checking Exhibit T1-T66 we prepared report and submitted a copy to the plaintiff and a copy to the defendant. We reacted to Exhibit U with our report dated 8-4-04. We issued 2 copies in respect of the report 1 for the plaintiff and 1 for the defendant".

The appellant bank was, also, conversant with the CBN guidelines as stated by the 4th D.W. in the court below. Further, Exhibits FF and GG had specified or tabulated item by item how the final calculation of the figures contained therein was arrived at by the 3rd P.W, who was extensively cross-examined on some of the entries therein by appellant bank's learned counsel in the court below.

 

   Therefore, it cannot be urged that appellant bank was taken by surprise or suffered legal ambush by the evidence of the 3rd P.W. and Exhibits FF and GG to call in aid the cases of George v. Dominion Flour Mitts (supra), Metalimpex (supra) and Overseas Construction (Nig) Ltd. (supra) on the bindingness of pleadings on parties and on strict proof cited by appellant bank's learned counsel. Strict proof does not imply unusual proof. It is proof that would bend or lend itself to quantification – see Imana v. Robinson (supra).

 

   In the present case, the complaint of manipulation of respondent's account by an agent of appellant bank was civil in scope, not criminal, as urged by appellant bank's learned counsel – see Uzoho v. Task Force on Hospital Management and Other (2003) FWLR (Pt.166) 606 at 618 thus:

"Fraud can at times be in form of civil wrongdoing…"

But, with full respects to respondent's learned senior counsel, the welter of evidence from the appellant bank especially the 2nd D.W indicated the 2nd D.W. lost his job on account of granting unauthorized loans to customers, not manipulation of customers' accounts.

 

   In my view, strict proof was met by respondent in the court below in respect of her claim as tabulated in Exhibits FF and GG and the largely unchallenged evidence of the 3rd P.W. The unsuccessfully challenged evidence in respect of the claim would stay, while the successfully challenged entries in Exhibits FF and GG amounting to N3,468.03 as computed in respondent's brief which was not refuted in appellant bank's reply brief shall be subtracted from the N7,779,368.80 awarded to respondent by the court below to settle on the wholesome total sum of

N7,775,900;50.

Issue (iii) (supra) complained of evaluation of evidence by the court below in respect of the counter-claim before dismissing it. Appellant bank relied inter-alia on the statements of account of respondent in Exhibits T1-T66, RR and U for the counter-claim.

 

   Though periodic statements of account served by a bank on its customer without the latter protesting the accuracy of the entries made therein constitute method of proof of the customer's liability to the bank, in the instant case the statements of account were not so served. The unchallenged evidence of respondent on the issue stated:

"I had earlier given evidence that I was not given statement of account. I was never given a statement of account in respect of my account throughout the period I was banking with them, I was only given a statement of account only after this case got to the court through my counsel."

Respondent protested the inaccuracies of the debit entries in the statements of account, Exhibits T1-T66 and U, and engaged the services of 3rd P.W. to cross-check them producing Exhibits FF and GG, as the correct or authentic entries, so went the uncontradicted evidence for respondent in the court below.

 

   Further, unless accepted by the customer, which was not the case here. statements of account such as Exhibits T1-T66, RR and U standing alone cannot prove the indebtedness of the customer to the bank – see section 38 of the Evidence Act as follows:

"Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability," (My emphasis).

See also Ojolo v. I.M.B. at 324 (supra) per Onalaja, JCA, cited by respondent's learned Senior Counsel Since respondent disputed the entries in Exhibits T1-T66 and U by producing Exhibits FF and GG and stating uncontradicted that she was only given the statements of account while the case was in court, appellant bank had the onus to prove item by item the entries in Exhibits T1-T66 and U through its bank staff acquainted with the entries or as a last resort through any other staff of appellant bank, which was not discharged in the instant case, as the four witnesses called for appellant bank did not explain the entries in Exhibits T1-T66 and U in their respective testimonies to arrive at the sum of money claimed by appellant bank against respondent in the counter-claim- see the unreported judgment of this court (Jos Judicial Division) in Alhaji Yusuf Ali v. First Bank of Nigeria Ltd. in Appeal No. CA/J/161/93, delivered on 15.11.1995, by Oguntade, J.C.A., (with the concurrence of Edozie and Muntaka-Coomassie JJ.CA) inter alia thus:

"On their own (the ledger cards and statements of account they do not convey much. p.W.1 who tendered them did not explain the entries thereon and it is difficult if not impossible to have made any sense out of them without some explanations and assistance from the person who kept them…"

See also Anyakwo v. ACB Ltd. (1976) 2 SC 41, 2 SCNJ Page 1. I respectfully conclude that the disputed Exhibits T1-T66 and U as they stood in the court below without explanation of the entries thereon could not, in my view, have proven appellant bank's counterclaim. Besides, the court below found Exhibits T1-T66 and U worthless.

 

   However, other pieces of documentary evidence tendered by appellant bank were not evaluated by the court below as rightly submitted by appellant bank's learned counsel, who couched his submission in caustic language conveying unsubstantiated imputation of bias on the learned judge of the court below which is hereby deprecated. Counsel is expected to use measured language devoid of unverified mudsling allegations on a learned judge in his brief of argument. To do otherwise would not, in my humble view, be fair. I say no more – Akpan v. Bob and others (2010) 17 NWLR (pt. 1223) 421 at 479 per Muhammad, J.S.C.  

Be that as it may, I proceed anon under section 15 of the Court of Appeal Act, 2004, to assess the unevaluated documentary evidence and materials as they relate to the alleged indebtedness. Relevant to the alleged indebtedness are first Exhibits O, P, Q, R, DA, and DD, series of letters appellant bank wrote to respondent on the alleged indebtedness, and another set of letters of demand from appellant bank in Exhibits KK5, KK7, LL1 and LL3 to respondent. There were also letters from respondent's solicitors in Exhibits N, NN1-NN4, and PP to appellant bank towards settlement of the dispute amicably. The bid to settle the matter out of court, eventually failed as appellant bank insisted on N15Million, while respondent offered N8Million. Exhibits N, NN1-NN4 and PP do not, in that wise, constitute proof of the alleged indebtedness, as negotiations to arrive at an agreed sum of money as the quantum of the alleged indebtedness did not materialise.

 

   Letters from respondent undertaking to pay N14.7 million were admitted in evidence without objection through 1st D.W. as Exhibits M, JJ1, JJ2, KK1, KK6 and S.

It is, therefore, necessary to copy below respondent's response to the letters of demand. Exhibit KK6 dated 2.5.1997, and addressed to appellant bank's branch manager reads:

"Re: ACCOUNT NO. PA 289

I thank you for your letter ref. NGB PA.289/89 of 25th March, 1997, and our various meetings and discussions on same matter. I can recall that most of the issued raised in your said letter have been discussed at over meeting.

As regard repayment, I will be paying in at least N20,000.00 daily. This will bring my monthly, repayment to about N400,000.00 ………….."

Exhibit KK1 dated 13.9.1999, from respondent to appellant bank, repeated her pledge to repay the debt.

Prior to Exhibits KK and KK1, respondent wrote to appellant banks branch manager on 12.1.1996, in Exhibit JJ1, thus:

"I write to inform you that I am the owner of the above named account with you. I want to confirm to you that I owe the total sum of N14,763.755.70 (Fourteen Million, Seven Hundred and Sixty Thousand Seven Hundred and Fifty Five Naira Seventy Kobo).

I also confirm that the total debit arose as a result of various cheques and draft I paid to my following suppliers: Sunflag Nig. Ltd, Lagos, Afprint Nig. Plc, Lagos, Ebojsons Ind. Nig. Ltd., Chanrai Nig. Ltd. Ibadan. I confirm to you already that I have goods worth over N28Million Naira and that I have more than N15Million to be collected from my debtors within the market the list of which I already showed you.

As security you already have Legal Mortgage on my house which is of 6 flats and worth more than N10 Million. I promise to bring the excess to the approved limit before the end of January 1996."

Exhibit JJ2 was confirmation by respondent of the sum of N1,3646,20.34, as the true and correct debit balance in her account with appellant bank as at 28.4.95. covering the period May 1994, to April 1995. While Exhibit AA dated 2.4.1998, from respondent to appellant bank, was a reminder of her earlier request and the information that she had started "immediate operation" of her account "in compliance with the agreement reached at our last meeting."

Exhibit S dated 17.2.1998, written by respondent to appellant bank reads:

"I refer to your letter HOD.13679176 of 26th January, 1998 and the meeting held with representatives of the Bank on 10th February, 1998.

I sincerely appreciate the Bank's concerns for the state of my Account at your New Gbagi branch.

I would like the Bank to note that the state of the Account was first brought to my knowledge when the account was N28Million Naira debit. That within the shortest possible period the debts was reduced to N9Million Naira. That due to huge interest accumulation the debts came up to about N12Million Naira again. The value of the securities for this account is about N8Million Naira. And, for now, our business is very dull.

In order to assist me in the immediate repayment of the debts without the total destruction of my business it is needful for the bank to:

(1) Stop charging interest on the account.

(2) Allow me monthly repayment of N250,000.00. And on my own part, I will ensure that there is no default in the repayment.

I would like to remind the Bank that I am one of your best customers and would like to maintain my good name and relationship with the Bank. I need you cooperation."

Respondent pleaded illiteracy as a defence to the admissions. Evidence on record established on the contrary that she completed secondary school education and testified in English in the court below and signed the letters admitting liability without protest. The plea of illiteracy accordingly fails. See Anaeze v. Anyaso (1993) 5 NWLR (pt.291) Page 1.

 

   Respondent's learned senior counsel also contended that she was not in a position to know what she had admitted citing in support Seismograph (supra). Seismograph (supra) was an admission outside the personal knowledge of the maker, and the admission was accorded no weight. Here the respondent consciously admitted in writing her indebtedness of about N12 million to appellant bank in Exhibit S (supra), therefore it is with deference, hard to see the relevance of the Seismograph case (supra) to the said express admission of liability in writing of a debt by respondent – see Ojukwu v. Onwudiwe (1984) I SCNLR 247 at 284 as follows:

"Another principle deeply enshrined in our Jurisprudence is that admissions made do not require to be proved for the simple reason, among others that out of the abundance of the heart the mouth speaketh, and that no better proof is required that that which an adversary wholly and voluntarily owns up".  

 

   In my considered view, the said written admission of liability for the sum of about N12 million in Exhibit S (supra) estopped respondent from denying the indebtedness to the tune so admitted – see Alhaji Yusuf Ali v. First Bank of Nigeria Ltd. (supra) where Oguntade, J.C.A. (as he then was) held:

"It seems to me that the basis of the defendant's liability to the Plaintiff is the admission by the defendant in Exhibit "H". Remove that admission and the Plaintiff's case would collapse…"

See also sections 27 and 75 of the Evidence Act. Premised on the said admission, the burden shifted to respondent to prove repayment of the admitted sum of money- see Akalonu v. Omokaro (2003) 8 NWLR (Pt. 821) 190 per Salami, J.C.A. (now J.C.A.) Respondent relied on the expert reports in Exhibits FF and GG and the evidence of 3rd P.W. in her bid to prove liquidation of the admitted sum of money. The 3rd P.W. arrived at N18,187,255.00 from his "expert" reports in Exhibits FF and GG from which he deducted N10,407,886:20 as money owed appellant bank by respondent, when in reality the indebtedness ought to have been almost N12 million as expressly admitted in writing by the respondent in Exhibit S (supra). Consequently the deduction ought to have been not less than N12 million at the time the suit was filed on 30.6.2000, taking into account the interest rate on the debt (infra), which, I hereby correct by deducting the N12 million from the N18,187,255:00 to read N6,187,255.00. The errors committed in the entries in Exhibit FF and GG amounting to N3,468.03 (supra) when subtracted from the N6,187,255.00 comes to N6,183,786.07, the total amount the court below was entitled to award to respondent against appellant bank.  

   The issue of interest rate pegged at 30% pleaded in the counterclaim is neither here nor there. Exhibit CC, the deed of mortgage, does not state the interest rate in the column for it in paragraph 2 thereof. Exhibit N, however, stipulated the interest rate to be 21% subject to market fluctuation. Accordingly, the agreed interest rate was 21% subject to market forces not 30% pleaded by appellant bank and, I so hold.

 

   The appeal is, accordingly, allowed in part. The award of N7,779.368:80 made by the court below (Aderemi, J.) in favour of respondent against appellant bank is varied to N6,183,786.07, which shall be the judgment sum for respondent against appellant bank. Parties to bear their costs.

 

 

STANLEY SHENKO ALAGOA, J.C.A.: I have had the opportunity of reading before now the lead Judgment of my learned brother Ikyegh, J.C.A. just delivered. I agree with his reasoning and conclusion that the appeal should be allowed id part. I allow same and abide by the other order or orders contained in the lead judgment including order on costs.

 

 

SIDI DAUDA BAGE, J.C.A.: I had a preview of the judgment just delivered by my learned brother, J. S. Ikyegh, J.C.A. His Lordship has dealt with the issues raised exhaustively and there is nothing more to add.

I am in full agreement with the reasonings and conclusions contained in the said judgment.

I abide with the consequential orders contained therein. I also abide by the order awarding no costs.