Fin Bank (Nig.) Plc. V. Adebayo Issa Olawale (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADEBAYO ISSA OLAWALE – Respondent(s)

dence Act 2011. In a further argument, learned counsel submitted that the total amount allegedly withdrawn on exhibit 2 upon which the applicant placed heavy reliance is N97,000,000.00 and not N79,000,000.00 as claimed by the Appellant. Not only that, the total amount on exhibit 2 was allegedly withdrawn from one account, i.e. Bitto Nig Ltd and this evidence is at variance with paragraphs 4 and 5 of the statement of claim where it was pleaded in unequivocal terms that the sum accumulated from March 2008 to 9th March 2009 from various accounts.

Learned counsel insists that the N79,000,000.00 pleaded is not in harmony with exhibit 2 and so also are paragraphs 4 and 5 of the statement of claim. Still in argument, learned counsel urged the court to hold that the Appellant did not place any credible evidence before the lower court to warrant a judgment in its favour as such the learned trial judge’s decision to dismiss the case on the basis of irreconcilable and inconsistent evidence is in tandem with the position of law as enunciated in several decision of the Apex

Court. In aid learned counsel cited Osuji vs. Ekocha (2009) 7 MJSC 74 @ 137 paragraphs F-G; Ezemba vs. Ibeneme (2004) 7 SCNJ 135 @ 153 – 154 lines 40 – 45.

Finally learned counsel urged this court to dismiss the appeal and affirm the decision of the lower court. Both the Appellant and the Respondent relied heavily on exhibit 2 in their respective submissions. For clarity this exhibit is hereunder reproduced as follows:-

“30th April 2009

The Senior Business

Fin Bank Plc.

120, Abdulaziz Attah Branch,

Ilorin.

Dear Sir,

UNAUTHORIZED WITHDRAWAL FROM BITTO’S ACCOUNT

In March last year I liquidated and withdrew the sum of Fifteen Million Naira (N15,000,000.00) from Bitto’s BA Account. I gave the sum of Fourteen Million Naira (N14,000,000.00) to Abdulfatai Kareem for onward delivery to Alh. Ibrahim Tunde Abubakar Bida as loan. We agreed on the monthly payment of One Million Eight Hundred Thousand Naira (N1,800,000.00) as interest on the loan. He paid the sum of One Million Eight hundred thousand naira (N1,800,000.00) twice and the sum of One Million six hundred thousand Naira (N1,600,000.00) twice. I collected the sum of Nine hundred thousand naira (N900,000.00) each time the interest is paid claiming that the money is for the account owner. The sum of Nine hundred thousand Naira (N900,000.00) was later given to me twice to settle the account owner but none was given to the account owner. The remaining balance of One Million Naira (N1,000,000.00) on Fifteen Million Naira (N15,000,000.00) is with me while the balance on the interest taken was shared between me and Alhaji Fatai Kareem.

On 9th March this year, I liquidated the sum of Twenty-Five Million Naira (N25,000,000.00) and Fifteen Million Naira (N15,000,000.00) respectively from the same account and caused draft of Thirty-Eight Five hundred Naira (N38,500,000.00) to be issued in favour of BAFAS NIGERIA LIMITED, an account introduced by Alh. Fatai Kareem, with the balance of the One Million Five Hundred thousand Naira (N1,500,000.00) left in Bitto’s current account. This was as a result of the advice by Alh. Fatai Kareem that we should do business that will bring back the fourteen Million Naira (N14,000,000.00) granted to Alh. Tunde Bida so that we can pay the money back into the account where we took the money from. At a point, some people who paraded themselves as journalist came to Alhaji Fatai Kareem that they have the information that some money was deposited into an account and later transferred to his own account in Oceanic bank and that if he does not give them money that will blow the whole story in paper. The two guys later came to me in the office and explained everything to me that they have gone to Fatai for same thing. So myself and Fatai agreed to settle them so that they won’t blow the whole story. We first gave the sum of Five hundred thousand Naira (N500,000.00) and when they came later we gave them another One Million Naira (N1,000,000.00).