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Interdrill Nigeria Limited & Anor V. United Bank For Africa Plc (2017)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The United Bank for Africa Plc (as plaintiff) took out a suit under the Undefended List procedure against the appellants in this appeal (as defendants) at the High Court of Delta State in 2001. The said plaintiff (now, respondent herein) claimed against the defendants (appellants herein), jointly and severally:

The sum of N17,835,802.67 (seventeen million, eight hundred and thirty five thousand, eight hundred and two Naira, sixty seven Kobo) being the outstanding debit balance in the first defendant’s account with the plaintiff as at 2nd February, 2001 which sum is due the plaintiff from an overdraft facility granted to the first defendant at the first defendant’s request and guaranteed by the second defendant, which sum the defendants have failed, neglected, omitted and/or refused to pay inspite of repeated demand.
31% per annum on the said sum of N17,835,802.67 (seventeen million, eight hundred and thirty five thousand, eight hundred and two Naira, sixty seven Kobo) from February 03, 2001 until judgment and thereafter 10% per annum on the judgment sum until same is fully

liquidated.

Satisfied, from the appellants’ Notice of Intention to defend the suit, that a defence on the merits had been made out, the Court (hereinafter, simply, referred to as “the trial Court) transferred it to the General Cause List “for hearing and determination of the case on the affidavit evidence…”

At the hearing of the suit on August 5, 2003, PW1, Kelechi Ogbonna, presented the plaintiff’s case. He was cross examined. The matter was, then, adjourned to November 3, 2003 for continuation of hearing. On that adjourned date, the appellants, though absent, wrote for an adjournment. Upon the trial Court’s refusal of the application, it foreclosed the defence and adjourned for judgment on November 20, 2003.

Prior to the date aforesaid, the appellants, strenuously, sought to arrest the judgment through a motion filed on November 10, 2003. Having heard submissions on the application on November 20, 2003, the trial Court adjourned its ruling on it to December 5, 2003.

Sequel to its order of the dismissal of the application, it proceeded, on the same day, to dismiss the plaintiff/respondents case, holding that it could not prove

interest on the sum of N10,000,000 (Ten million Naira) only although it, still, found that the first appellant collected and utilized the said sum on the basis of Banker/Customer relationship between the parties.

The plaintiff’s appeal to the Court of Appeal, Benin Division, was successful. The Court (hereinafter, simply, referred to as “the Lower Court”) set aside the judgment of the trial Court and entered judgment in favour of the plaintiff.

The lower Court, equally, faulted the trial Court’s reason for refusing to accord probative value to the testimony of PW1 (the trial Court was of the view that, since the said witness was not in the employment of the plaintiff/Bank when the transaction was made and he was not the deponent to the accompanying affidavit, it would attach no weight to his evidence).

Aggrieved, the defendants/respondents (now, appellants) have appealed to this Court. Their two issues were framed thus:

Whether the law that any agent or servant can give evidence to establish any transaction (sic) into by a juristic personality is applicable to affidavit evidence
Whether the Court below was right when it held that

the respondent proved interest and the entire indebtedness of the appellants to the respondent having to the evidence led

The respondent adopted these two issues which would, therefore, be utilized in the determination of this appeal.

ARGUMENTS ON THE ISSUES

ISSUE ONE

Whether the law that any agent or servant can give evidence to establish any transaction (sic) into by a juristic personality is applicable to affidavit evidence

APPELLANTS’ SUBMISSIONS

At the hearing of the appeal on December 13, 2016, Ikhide Ehighelua, for the appellants, adopted the brief filed on December 9, 2016, although deemed properly filed on December 13, 2016. As expected, he faulted the lower Court’s disavowal of the approach of the trial Court in refusing to attach probative value to the testimony of the PW1.

He submitted that affidavit evidence is a special evidence which can only be proved by the deponent, citing Boothia Maritime Inc v Far East Mercantile Co Ltd (2001) FWLR (pt 50) 1713, 1714. He canvassed the view that, even in matters involving juristic persons, only the deponent can give evidence in proof of facts in an affidavit, CPC v INEC

(2011) 18 NWLR (pt 1279) 493, 571. He urged the Court to resolve the issue in favour of the appellants.

RESPONDENT’S CONTENTION

On his part, Ama Etuwewe, for the respondent, adopted the brief deemed properly filed on December 13, 2016. He disclaimed the applicability of the decision in Boothia Maritime Inc v Far East Mercantile Co Ltd (supra).

He pointed out that PW1, Kelechi Ogbonna, testified that he was in the employ of the respondent as a business officer. His duties included managing the relationship between the customer and the respondent and the recovery of money which customers owed to it, citing pages 60-61 of the record. He noted that, although unchallenged, the trial Court failed to attach any probative value to his testimony,

Citing page 177 of the record, where the lower Court overruled the position of the trial Court on this point, counsel observed that the approach of the trial Court occasioned a miscarriage of justice. Like the lower Court, he relied on Kate Enterprises Ltd v Daewoo (Nig) Ltd (1985) 2 NWLR (pt 5) 127 and Saleh v Bank of the North Ltd (2006) 6 NWLR (pt 976) 316, 326-327.

He maintained that the lower Court,

rightly, upturned the view of the trial Court on the probative value of the evidence of PW1.

RESOLUTION OF THE ISSUE

What prompted the respondent’s appeal against the judgment of the trial Court was the, somewhat, contradictory posture of the trial Court. First at page 91 of the record, it held thus:

The Court prefers the evidence of plaintiff that the nature of the transaction was the grant of facility of N20,000,000 by the plaintiff to the first defendant. By the implied admission of the defendant, the first defendant utilized N10,000,000 – see paragraph 11 of the affidavit of defendants accompanying the notice of intention to defend and see Exhibits 1 and 2 exhibited to the accompanying affidavit to the writ. The Courts finds as a fact that there was a banker and customer relationship and the facility was granted in cause (sic) of that relationship…The Court rejects the defence of the relationship of partnership set up by the defendants.

It is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and defendants…

[italics supplied]

Although it found that the defence of the relationship of

partnership set up by the defendants was a frivolous attempt to defeat the transaction duly entered by the parties, it nonetheless refused to attach probative value to the unchallenged testimony of PW1. Listen to this:

The Court will however attach no weight to the evidence of PW1 in view of his evidence under cross examination that he was not employed when the transaction was made nor did he depose to the said accompanying affidavit.

[page 88 of the record]

Instructively, at page 80 of the record, the said Court had recorded PW1, a Credit Officer of the plaintiff/respondent thus:

I am familiar with the transaction that gave rise to this suit. The facility granted to the first defendant was on the 14/8/98 of N10,000,000. 1st defendant withdrew N10,000,000 out of the facility granted. The facility was initiated by an application by the first defendant to the plaintiff which subsequently gave an offer. The first defendant perfected the offer. The facility was secured by a legal mortgage on the first defendants property at No 81 Airport Road, Warri ..

[page 80 of the record].

The lower Court was un-impressed by the posture of the trial

Court; hence it upturned its verdict. In so doing, it (the lower Court) proceeded thus:

Having so found (an obvious reference to the trial Courts finding that The Court rejects the defence of the relationship of partnership set up by the defendants. It is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and defendants…)… the substratum of the defence was knocked out; all that was left was the printed evidence of the appellants, which was supported by oral testimony of PW1. It is now very axiomatic that proof of issues in a civil case is on the balance of probabilities. Where there is nothing to put on the one side of the imaginary scale of justice, minimum evidence on the other side satisfies the requirement of proof even where strict proof, such as proof of special damages, is the matter…

[page 173 of the record; italics supplied]

The lower Court, equally, faulted the reasoning of the trial Court on the question of the probative value of the testimony of the said witness. Hear the eloquent reasoning of the Court [per Aderemi, JCA, as he then was]:

The plaintiff/appellant, a limited

liability company, is an abstract body that only exists in the eyes of the law. In many ways, it has always being (sic) likened to a human body. The law ascribes to a limited liability company the possession of a brain and a nerve centre, which controls what it does, Since it cannot form an intention within.

[pages 174 177]

In his spirited attempt to impugn the above reasoning, learned counsel for the appellant cited Boothia Maritime Inc v Far East Mercantile Co Ltd (2001) LPELR -792 (SC). Contrariwise, learned counsel for the respondent disclaimed the applicability of this Court’s decision in Boothia Maritime Inc v Far East Mercantile Co Ltd (supra). I am in agreement with him.

As this Court has often admonished, cases are only authorities for what they actually decided in the con of the prevailing facts. That explains why in Savannah Bank Ltd v P. A. S. T. A. Ltd (1987) 1 SC 198, 278, 279, Karibi-Whyte JSC enjoined Courts to “consider the claim before the Court and the issue which the Court was called upon to decide.”

The question in Boothia Maritime Inc v Far East Mercantile Co Ltd (supra) involved demurrer proceedings.

Ogwuegbu, JSC, percipiently, explained:

In demurrer proceedings under the Rules, … the plaintiff should have filed a statement of claim. Otherwise, there will be no basis for the defendant to conceive that he has a good legal or equitable defence to the suit. Therefore, as a general rule, the application cannot be brought before the plaintiff files his statement of claim but must be filed before the filing of the statement of defence. In an application under Order 27, the filing of an affidavit in support of the demurrer is unacceptable as it is a written statement of facts on oath sworn or affirmed before someone who has authority to administer it. In civil proceedings parties may agree that their case be tried upon affidavit and the Court may order that any particular facts be proved by affidavit. It is mandatory that affidavit used in Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. (See Section 86 of the Evidence Act. Cap. 112, Laws of the Federation of Nigeria, 1990) It will therefore be a contravention of Rules 1 and 2

of Order 27 to permit an affidavit supporting an application in demurrer proceedings. An affidavit contains facts alone and a defendant is precluded from answering any questions of fact raised in the statement of claim since he is taken to have admitted the truth of the plaintiff’s allegations and no evidence respecting matters of fact and no discussion of questions of fact are allowed.

(pages 33 -34; italics supplied for emphasis)

On the other hand, the question in the instant appeal is the propriety of the lower Courts view [per Aderemi, JCA, as he then was] that:

The plaintiff/appellant, a limited liability company, is an abstract body that only exists in the eyes of the law. In many ways, it has always being (sic) likened to a human body. The law ascribes to a limited liability company the possession of a brain and a nerve centre, which controls what it does. Since it cannot form an intention within [pages [174-177]

My lords, the above reasoning is unimpeachable. Both at common law and under the Nigerian Companies and Allied Matters Act, a duly registered or incorporated company is a persona ficta; a juristic person, Lennards

Carrying Co. v. Asiatic Petroleum Co. Ltd. (1915) AC 705, 713-714, per Viscount Haldane L.C.; Bolton (Engineering) Co. Ltd. v Graham and Sons Ltd. 1 QB 159, 172-173, Denning, L. J, that can only act through an alter ego, either its agents or servants, Kate Enterprises Ltd v Daewoo Nig Ltd [1985] 2 NWLR (pt.5) 116.

In Ishola v Societe Generale Bank Ltd (1997) LPELR 1547 (SC) 26-27; F-D, this Court, further elaborated on the nuances of this general proposition thus:

…it cannot be over emphasized that a company being a legal person or a juristic person can only act through its agents or servants and any agent or servant of a company can therefore give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence. The fact that such official did not personally participate in the transaction on which he has given evidence may in appropriate cases, however, affect the weight to be attached to such evidence,

Kate Enterprises Ltd. V. Daewoo (Nig.) Ltd. (1985) 2 NWLR (pt.5) 116; Anyaebosi v. R.T Briscoe (Nig.) Ltd [1987] 3 NWLR (pt.59) 84; Chief lgunbor and Ors v. Chief Ugbede [1976] 9-10 SC 179, 187 etc.

[Italics supplied]

The concern, which learned counsel for the appellant in this appeal expressed, was that the PW1 did not depose to the affidavit accompanying the plaintiff/respondent’s suit. The question therefore, is whether this is an “appropriate case. Ishola v Society Generale Bank Ltd (supra) which should have affected the weight which the trial Court ought to have attached to the plaintiffs case.

In my humble opinion, the appropriate answer is a resounding No! I would, now, invite the lower Court to supply further elaborations for this posture. Hear Aderemi, JCA (as he then was):

evidence of the appellants, which was supported by oral testimony of PW1. It is now very axiomatic that proof of issues in a civil case is on the balance of probabilities. Where there is nothing to put on the one side of the imaginary scale of justice, minimum evidence on the other side satisfies the requirement of proof even where strict proof such as proof of special damages, is the matter…

[page 173 of the record; italics supplied]

It worthy of note that Aderemi, JCA’s conclusion was in response to the elaborate findings of the trial Court at page 91 of the record thus;

The Court prefers the evidence of plaintiff that the nature of the transaction was the grant of facility of N20,000,000 by the plaintiff to the first defendant. By the implied admission of the defendant, the first defendant utilized N10,000,000 – See paragraph 11 of the affidavit of defendants accompanying the notice of intention to defend and see Exhibits 1 and 2 exhibited to the accompanying affidavit to the writ. The Courts finds as a fact that there was a banker and customer relationship and the facility was granted in cause (sic) of that relationship…The Court rejects

the defence of the relationship of partnership set up by the defendants. It is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and defendants…

[Italics supplied]

Against the background of the above circumstances, therefore, it was wrong of the trial Court, as held by the lower Court, to have dismissed the plaintiff/respondents suit. I am, therefore, in agreement with the learned counsel for the appellant that the reasoning in Boothia Maritime Inc v. Far East Mercantile Co Ltd (supra) should be canalized within the peculiar facts that yielded it and the questions before the Court.

Indeed, from the facts and circumstances of the instant appeal, the apt authority should be the decision of this Court in Saleh v Bank of North Ltd [2006] 6 NWLR (pt 976) 316, 326-327; (2006) LPELR (2991) (SC) 10-11; F-A where it held thus:

… the mere fact that – a bank staff was not around when a customers bank account was opened was not enough to prevent the staff from testifying or giving evidence on customer’s account. See Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. [1985] 2 NWLR (pt.5) 116; See

also Ishola v. SGB (Nig.) Ltd [1997] 2 NWLR (pt.488) 405; also, Anyaebosi v R.T. Briscoe (Nig.) Ltd. (1987) 3 NWLR. (pt.59) 84; Igbodim v. Obianke [1976] 9-10 SC 179.

This posture, no doubt, finds solid anchorage on this Court’s view in Kate Enterprises Ltd v Daewoo (Nig) Ltd [1985] 2 NWLR (pt 5) 127 that:

To insist that the very person in the appellant Company who negotiated the transaction with the respondent must be called as a witness when the documents relating to the transaction are available and have been admitted in evidence without objection and PW1 is in a position to know about the transaction by the office he holds is, in my view, a negation of the very essence of the corporate personality of the appellants. Companies have no flesh and blood. Their existence is a mere legal abstraction. They must, therefore, of necessity, act through their directors, managers and officials… PW1 was clearly in a position to know enough about the transaction as to testify to it on behalf of the appellants. Besides, his evidence is substantially unchallenged and supported by documents tendered. I am satisfied that if the learned trial Judge had borne these

facts in mind, he would have given due weight to the oral evidence tendered by the appellants before him.

[italics supplied for emphasis]

In my view, this is, exactly, the point which the lower Court endeavored to make when it held at page 173 of the record that “… the substratum of the defence was knocked out; all that was left was the printed evidence of the appellants, which was supported by oral testimony of PW1.”

In all, I find no merit in the appellants’ complaint in this issue which I resolve against them.

ISSUE TWO

Whether the Court below was right when it held that the respondent proved interest and the entire indebtedness of the appellants to the respondent having to the evidence led

On this issue, learned counsel for the appellant sought, most gallantly, I must observe, to impugn the lower Court’s conclusion. He devoted paragraphs 2.12-2.53, pages 5-12 of the brief to his efforts in this regard.

On his part, counsel for the respondent, spiritedly, debunked these submissions on pages 10-18 of the respondent’s brief. I must, quickly, point out here that, against the background of the specific findings of the

trial Court, affirmed by the lower Court, learned counsel for the appellant would appear to have labored in vain.

First, I would, once more, refer to the findings of the trial Court at page 91 of the record thus:

The Court prefers the evidence of plaintiff that the nature of the transaction was the grant of facility of N20,000,000 by the plaintiff to the first defendant. By the implied admission of the defendant, the first defendant utilized N10,000,000 – See paragraph 11 of the affidavit of defendants accompanying the notice of intention to defend and see Exhibits 1 and 2 exhibited to the accompanying affidavit to the writ. The Courts finds as a fact that there was a banker and customer relationship and the facility was granted in cause (sic) of that relationship…The Court rejects the defence of the relationship of partnership set up by the defendants. It is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and defendants…

[italics supplied]

Notwithstanding the above finding, the trial Court still found against the respondent (as plaintiff) on the flimsy and weak-kneed reasoning at page 88 of the record. It

held thus:

[page 88 of the record; italics supplied]

This slipshod reasoning prompted the finding of the lower Court that:

It was even erroneous for the trial judge to late hold otherwise having earlier held that he preferred the evidence of plaintiff that the nature of the transaction was the grant of facility of N20,000,000 to the plaintiff (sic) by the first defendant (sic).

[pages 177 -178 of the record]

At page 12 of the respondent’s brief, it was argued thus “having not appealed against the finding of fact as regards the issue of partnership and the utilization of N10,000,000 based on the banker/customer relationship, the appellants are bound by the findings of fact which the Court of Appeal accepted.”

I, entirely, agree with this submission. It has long been settled that a finding of fact not appealed against cannot be disputed, Commerce Assurance v Alli [1992] 3 NWLR (pt 232) 710. In effect, the

correctness of such findings cannot be questioned, Yesufu v. Kupper International [1996] 5 NWLR (pt 446) 17; PN Udoh Trading Co. Ltd. v Abere [2001] 11 NWLR (pt 723) 114, 146. In all, therefore, this settled position, coupled with the exhibits before the trial Court, affirmed by the lower Court, make the submissions of the appellants’ counsel [pages 5-2. 53 of the brief] otiose

Indeed, as the lower Court found as follows:

Exhibits STB1 and STB2, copies of which were attached to the supporting affidavit clearly authenticate the interest rate payable. The first respondent signed the Memorandum of Acceptance Column by affixing its common seal and one of its directors by name Joseph Bogwu who, incidentally, is the second respondent, signing it and the Secretary of the Company by name Johnson Uwabor also signing. Again the second respondent also signed the Guarantee and Indemnity form – Exhibit STB2, which itself accompanied the supporting affidavit. There was no scintilla of evidence denying the signatures of the respondents. In the absence of plea of non est factum or allegation of signing under duress, the mere fact of the signature of a person on a document makes the

contents binding on him.

[pages 178 -179 of the record; italics supplied for emphasis].

Instructively, whilst Exhibit STB1 provides for the interest rate chargeable on the above facility; Exhibit STB2, the Guarantee and Indemnity form, was executed by the second appellant for the benefit of the first appellant. These were not disclaimed in the appellants’ Counter Affidavit at the trial Court. This background, undoubtedly, informed the submission on page 15 of the respondent’s brief that: “the plaintiff/appellant (sic) did not only prove its case on the preponderance of evidence, [it] also proved that it was entitled to charge interest on the principal sum…”

I, entirely, endorse this submission for it accords with this Court’s position that:

…interest may be awarded in a case in two distinct circumstances, namely: (i) As of right; and (ii) Where there is a power conferred by Statute to do so, in exercise of the Court’s discretion. Interest may be claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship,

see, London, Chatham & Amp; Dover Railway v. S. E. Railway (1893) A.C. 429 at p. 434. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead fact which show such an entitlement in the statement of claim.

Ekwunife v Wayne (West Africa) Ltd [1989] 3 NSCC 352, 359; [italics supplied for emphasis]; T. O. N. P. C Unltd v Pedmar Nig Ltd LPELR -3145 (SC) 19-20; C-A; Veepee Industries Ltd v Cocoa Industries Ltd (2008) LPELR – 3461 (SC) 14; C-E. This was, exactly, what the respondents did at the trial Court which the lower Court affirmed. I, therefore, find no merit in the complaint in this issue which I, also, resolve against the appellant.

In consequence of all I have said, I find that this appeal must be, and is hereby, dismissed as being, wholly, unmeritorious. Appeal dismissed. I hereby affirm the judgment of the lower Court. No order as to costs.

SC.4/2007

Interdrill Nigeria Limited & Anor V. United Bank For Africa Plc (2017) LLJR-SC

Interdrill Nigeria Limited & Anor V. United Bank For Africa Plc (2017)

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