Rosehill Limited V. Guaranty Trust Bank Plc (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A. 

Rosehill Limited (the appellant) a Limited Liability Company, obtained various credit facilities from Guaranty Trust Bank Plc. (the respondent), a Commercial Bank. The facilities were secured with a legal mortgage, personal guarantee and indemnity. Unable to honour its payment obligations as and when due, the appellant sought for and obtained the restructure or elongation of the facilities, which as at 5th of May 2009 stood at N297 million naira. Notwithstanding the restructuring granted the appellant still continued in default resulting to a debit balance of N337,203,573.09 as at 30th of September, 2010. The respondent then served a letter of demand on the appellant. Not satisfied with the action of the respondent, the appellant through its counsel initiated a civil action against the respondent by filing suit KDH/KAD/983/2010 before the Kaduna State High Court of Justice (the lower Court) seeking for the reliefs enumerated on pages 1-2 of the record of appeal.

The respondent filed statement of defence and counter-claimed against the appellant wherein two (2)

1

other persons were joined as defendants being a Director of the appellant as Guarantor, and a Director of the Company as Indemnifier. The appellant did not deny being indebted to the respondent. What was in dispute was the quantum of the indebtedness. After taking of evidence, oral and documentary, the learned trial Judge of the lower Court dismissed the claims of the appellant for being unmeritorious. The counter-claim of the respondent however was granted for being meritorious (in a judgment delivered on the 27/2/14). Peeved and piqued by the decision of the lower Court, the appellant filed notice of appeal on the 28th of February 2014 which was subsequently amended and filed on the 15th of April, 2014.

The appellant’s brief of argument was filed on the 10th of April, 2015 but deemed on the 14th of April, 2015. The respondent’s brief of argument was filed on the 7th of July 2015, but deemed on the 8th of July, 2015. A Reply brief was filed by the appellant on the 15th of September, 2015 but deemed on the 3rd of December, 2015. On pages 15 and 16 of the appellant’s brief of argument, four (4) issues have been culled from the Amended Notice and

2

grounds of appeal. The respondent, in its brief of argument on page 5, thereof distilled three (3) issues from the Amended Notice and grounds of appeal. It is trite, the purpose of formulation of issues for determination is to enable the parties to narrow the issues in controversy in the appeal for accuracy, clarity and brevity. An issue for determination must therefore be a proposition of law or of fact or both. An issue for determination in an appeal must be a concise statement of law or fact. It should not contain a conjecture or opinion. Ogbuanyinya v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551, (2) 1 FWLR (Pt. 72) 1981; Dantata v. Mohammed (2000) FWLR (Pt. 21) 889. (2000) 78 LRCN 1422; Nteogwuiji v. Ikwu (1998) 11 NWLR (Pt. 569) 267; Sha v. Kwam (2000) FWLR (Pt. 11) 1798, (2000) 78 LRCN 1645.

An appellate Court is not under a regimental duty to take all the issues formulated by the parties in an appeal. An Appellate Court can, and should reformulate issues, if it is of the view that for the just determination of the appeal, the issues formulated by the parties, be reframed taking into consideration the issues contained in the briefs of argument filed by

3

the parties. See Latunde v. Lajinfi (1989) 3 NWLR (Pt. 108) P.177; Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 94) P. 255 and Bankole v. Palu (1991) 8 (Pt. 211) P. 523. Issues 1 and 2 contained on pages 15 -16 of the appellants brief of argument and issues 1 and 2 in the respondents brief of argument are intertwined and or dovetailing such that one cannot be resolved without delving into the others. Issues 3 and 4 of the appellant and issue 3 of the respondent are interrelated and overlapping such that one cannot be resolved without delving into the other. In view of the foregoing, I consider it apt, to reframe or compress the issues for determination in the appeal to be thus:
Whether Exhibits 1A, 1B, 26, 27 and 30 are computer generated documents (statements of accounts) upon which the appellants claims and the respondent’s counter-claims are hinged, are admissible in law, if not, what is the effect on the respective claim of the appellant (as plaintiff) and the respondent (as counter-claimant)?

Daudu SAN, of learned senior counsel, referred to Exhibits 1A and 1B, 26, 27 and 30, and submitted that these documents being computer generated documents were

4

admitted in evidence in violation of the provisions of Section 84(1) and (2) of the Evidence Act, 2011. That Exhibits 26, 27 and 30 shouldnt have been admitted there being no facts pleaded to have warranted their admission in evidence. Learned senior counsel further contended that the provisions of Section 84 of the Evidence Act, 2011, are mandatory. That computer-generated documents are not inadmissible ab initio, but the provisions of Section 84 of the Evidence Act cannot be waived by parties nor can such document be admitted by consent without complying with same. The case of Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) P. 534 @ 577-578 cited to buttress the submissions supra. As to the general principles of law on the admissibility of documents which are ab initio inadmissible with or without objection, and the effect of admitting such documents in violation of the principles of law, learned SAN cited and relied on the cases of Oghoyone v. Oghoyone (2010) All FWLR (Pt. 543) P. 1884 @ 1861; and Degebiyi v. Pada (2002) FWLR (Pt.20) P.1778 @ 1788, to buttress his submission that Section 84 of the Evidence Act, being mandatory must be strictly complied with

5

since computer-generated evidence cannot be admitted in evidence by consent of parties, under Section 84 of the Evidence Act, 2011. Learned senior counsel highlighted the distinction of the provisions of Section 96(2) (h) of the Evidence Act 2004 which permitted the admission of certain documents by waiver or consent of parties as enunciated on the cases Kossen Nig. Ltd v. Savannah Bank Nig Ltd (1995) 9 NWLR (Pt. 421) and Akanmu v. Co-operative Bank (2006) 2 NWLR (Pt. 963) P. 82. However, it has been submitted that the principles of law enunciated in the cases cited supra, cannot apply to the provisions of Section 84 of the Evidence Act, 2011, having regard to the purport and intendment of the aforesaid Section 84 of the Evidence Act, 2011.

Learned senior counsel cited and relied on the pronouncement of the Apex Court, per Onnoghen J.S.C in the case of Kubor v. Dickson referred to supra, and did contend that, computer-generated documents cannot be admitted in evidence without strict adherence with the provisions of Section 84 of the Evidence Act, 2011. This Court have been urged to hold that the lower Court erred in law in admitting Exhibits 1A, 1B,

6

26, 27 and 30, being computer-generated documents without strictly complying with the conditions stipulated for their admissibility in evidence.

Olaniyan Esq., of learned counsel to the respondent, submitted that the contention of learned senior counsel to the appellant that Exhibits 1A, 1B, 26, 27 and 30 were admitted in evidence despite objection cannot be correct. Counsel submitted that the aforementioned exhibits were admitted without objection from the appellant’s counsel as could be seen on pages 814 (in respect of Exhibit 1A & 1B) and page 864 (in Exhibits 26, 27) of the record of appeal. Counsel further adumbrated that, there are two (2) types of inadmissible documentary evidence. First, is evidence that is absolutely inadmissible in law, and cannot be admitted by consent or otherwise. That the second type of evidence is one which is admissible in law upon the fulfillment of certain conditions. The case of Agbonarbore v. Oghehor (2007) All FWLR (Pt. 351) P. 1584 @ 1659 and Okere v. Fashawe (2006) Vol. 12 WRN cited to reinforce the submissions supra.

Regarding the provisions of Section 84 of the Evidence Act, 2011, counsel submitted that

7

it provides for certain conditions to be fulfilled for the admission of computer-generated documents. That any failure to object to the admission of any document in evidence by reason of non fulfillment of the conditions provided, it would constitute waiver, and same cannot be raised at later stage. The cases of Degebiyi v. Pado (2002) FWLR (Pt. 20) P. 778; Longe v. FRN (2006) All FWLR (Pt. 313) P 46 @ 84; Adamu v. Takori (2010) All FWLR (Pt. 540 P. 1377 @ 1404 and Trade Bank v. Chami (2004) All FWLR (Pt. 235) page 118 cited to buttress the submissions supra. Counsel pointed out that Exhibits 1A, 1B, 26, 27 and 30 being computer generated documents are admissible in evidence either by consent or the fulfillment of conditions stated therein. That having not objected to the admission of the documents by the appellant, same were properly admitted in evidence.

On the reliance on the case of Kubor v. Dickson (2013) All FWLR (Pt. 676) P. 392, cited by learned senior counsel that any document admitted in evidence in contravention of Section 84 of the Evidence Act, 2011 ought to be expunged from the record of the Court, counsel contended that the said case did not decide so.

8

That the pronouncement of Onnoghen J.S.C in that case regarding admissibility of computer generated documents subject to the fulfillment the conditions, is obiter as shown by the opinion of the two other Justices who sat on the panel in that case. Counsel submitted that the correct position of the law on the admission of computer-generated document has been enunciated in the case of Oghoyone v. Oghoyone (2010) All FWLR (Pt. 543) P. 1884 @ 1861-62 by Rhodes-Vivour J.C.A (as he then was), to the effect that non-objection to the admissibility of any document in evidence where the conditions stated have not been complied or satisfied, would tantamount to waiver, and cannot be raised later. Counsel submitted that having failed to object to the admissibility of Exhibits 1A, 1B, 26, 27 , 28 and 30 at the time they were tendered for admission, the appellant cannot on appeal, raised the non-admissibility of same.

Responding to the arguments canvassed in the respondent’s brief, learned senior counsel did submit that notwithstanding the consent of the parties to the admission in evidence of Exhibits 1A, 1B, 26, 27 and 30, same were admitted in error having regard

9

to the special nature of the provisions of Section 84 of the Evidence Act 2011. Counsel pointed out that there is great difference between the provisions of Section 96 of the Evidence Act, 2004 and the provisions of Section 84 under the Evidence 2011. That all the authorities cited by learned counsel to the appellant that documents can be admitted in evidence if the conditions for their admission has been waived, cannot apply under Section 84 of the Evidence Act, 2011 in view of the special nature of the provisions, and the specific and mandatory nature of same. That the provisions of Section 84 of the Evidence Act, 2011 are statutory, which cannot be waived, or consented to non-observation by parties in admitting evidence in any civil proceedings. Counsel did urge that a literal interpretation of Section 84 of the Evidence Act, 2011 is imperative since there is no ambiguity in the words of the section. The case of Obi v. INEC (2007) 11 NWLR (Pt. 1046) P. 565 @ 643 cited in aid. In his further submission, learned senior counsel adumbrated that by the provisions of Section 84 of the Evidence Act, 2011, computer generated evidence will only be admissible upon the

10

satisfaction or fulfillment of certain conditions specified therein. That where the conditions are not satisfied, computer generated evidence cannot be admitted, notwithstanding the consent of parties nor by implied waiver by both or any of the parties to the dispute. Where a Court admits computer generated evidence when the conditions have not been fulfilled, it is an infraction of Section 84 of the Evidence Act, 2011, which is a statutory provision. The case of Eghobimien v. FMBN (2002) 7 NWLR (Pt. 797) P. 488 @ 500 cited to buttress the submission supra

Learned senior counsel further cited and relied on the case of Olukade v. Alade (1976) 1. S.C 83 to reinforce the submission that where computer-generated evidence is admitted without the fulfillment of the conditions stated, it is an illegality and a Court of law cannot rely on such evidence in arriving at a decision. That the contention of learned counsel to the appellant that the admissibility of evidence under Section 84 of the Evidence Act, 2011 by consent or waiver cannot be contested or raised on appeal cannot be correct in view of the decision in Degebiyi v. Pado (2002) FWLR (Pt. 20) P. 1778

11

@ 1788. Counsel cited the case of Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) P. 534 to reinforce the submissions supra.

On page 923 of the printed record of appeal, the learned trial judge after referring to the provisions of Section 84 of the Evidence Act, 2011, held that:
In my view, Section 84 of the Evidence Act reproduced above provides for conditions for the admissibility of computer generated documents.”

Are Exhibits 1A, 1B, 26, 27 and 30 computer generated documents which can be admitted in evidence under Section 84(1) and (2) of the Evidence Act, 2011? What then is a computer-generated document under the aforesaid provisions of the Evidence Act, 2011.Section 84(1) provides thus:
84 (1) In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question.”
Sub-section 4 of Section 84 of the Evidence Act 2011, provides as follows:
“(4) In any proceeding

12

where it is desired to give a statement in evidence by virtue of this section, a certificate –
(a) Identifying the document containing the statement and describing the manner in which it was produced:
(b) Giving such particulars of any device Involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) above related, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be.
Subsection (5) of the said section aforesaid provisions thus:
“(5) For the purposes of this section –
(a) Information shall be taken to be supplied to a computer if it is supplied to it in any appropriate from and whether it is supplied directly or (with or without intervention) by means of any appropriate equipment;
(b) Where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or

13

processed for the purposes of those activities by a computer operated otherwise that in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.
(c) A document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. (Underlining for emphasis)
I have had a dispassionate perusal of the entire proceedings of the lower Court, particularly the pages of the record of appeal where the aforementioned documents were admitted in evidence. I have not been able to trace or find any statement of facts or evidence proffered in satisfaction or fulfillment of the provisions of Sub-sections (1), (4) and (5) of Section 84 of the Evidence Act, 2011 which has qualified any of the documents admitted in evidence as Exhibits 1A, 1B, 26, 27 and 30 as computer-generated document. I therefore, hold that the said documents were wrongly admitted in evidence under the provisions of Section 84(1) and (2) of the Evidence Act, 2011, which provides that:

<br< p=””>
</br<>

14

“84(1) In any preceding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in statement and computer in question.
(2) The conditions referred to in Subsection (1) of this section are –
(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) That over that period, there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained in derived;
(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of

15

the document or the accuracy of its contents; and
(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.”
Therefore, having been wrongly admitted in evidence under Section 84(1) and (2) of the Evidence Act, 2011, the said documents ought to have been expunged as evidence, and the lower Court ought not have relied on them in taking a decision. In the event, I erred in arriving at the conclusion and decision supra. Let me proceed to consider whether or not, the conditions enumerated under Sub-section (2) of Section 84 were satisfied or fulfilled to have warranted the admission of Exhibits 1A, 1B, 26,27 and 30 in evidence at the lower Court.
The provisions of Section 84(1) and (2) of the Evidence Act, 2011, are statutory, and unambiguous. The law is trite; a literal or ordinary interpretation should be applied to a statute which is unambiguous by the nature of the words used. See Obi v. INEC (2007) NWLR (Pt. 1046) P. 565 @ 643. I therefore agree with the submission of learned senior counsel to the appellant, on page 7 at the Reply brief

16

that:
“It is submitted that by the express provisions of Section 84 of the Evidence Act, computer generated evidence will be admissible only upon the satisfaction of certain conditions. Where not complied with, computer generated evidence will be inadmissible. Therefore where compliance with the express provisions of the law cannot be shown or established, the computer generated evidence is for all intents and purposes inadmissible and admitting such evidence will amount to an infraction of the law.”
The admissibility of a computer generated document or document downloaded from the internet is governed by the provision of Section 84 of the Evidence Act, 2011. By Section 84 (1) of the Evidence Act, in any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible if it is shown that the following conditions are satisfied in relation to the statement and the computer in question; that is:
(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to

17

store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not or by any individual; and
(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived; and
(c) That throughout the material part of that period, the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its content; and
(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
A party that seeks to tender in evidence a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the above conditions.
I am not mindful of

18

the opinion expressed by Rhodes-Vivour JCA (as he then was) in the case of Oghoyone v. Oghohone (2010) All FWLR (Pt. 543) P. 1884 @ 1861, that wherein his lordship when dealing admission of document under Section 96(h) of the Evidence Act, 2004, held that where there are condition, laid down for admissibility of evidence especially documents, if no objection is raised to the non-compliance to the conditions, it would be taken as having been waived, and the evidence can properly be admitted, its inadmissibility cannot be raised later on appeal. The learned Justice said:
“Since Exhibits P.16-23 (Statement of Accounts) are not inadmissible, they are admissible subject to certain conditions earlier explained, and since they were admitted (Exhibit P. 19 P. 21, P. 22 and P. 23) without objection to their admissibility, any further objection to their admissibility is deemed waived and this Court cannot open the admissibility of the said exhibits; OFUMA v. IBWA (1988) 1 NWLR PART 73 AT 658.”
In the recent case of Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) P. 534 @ 579, the Supreme Court had the occasion to pronounce on the provisions of Section 84

19

of the Evidence Act, 2011 wherein Onnoghen JSC, lucidly expressed the position of the admissibility of computer-generated evidence especially documentary, under Section 84 of the Evidence Act, 2011 which provisions are distinct from the provisions of Section 96 of the Evidence Act, 2004. In the case supra, the Supreme Court was emphatic that the conditions specified for the admissibility of computer-generated documents cannot be waived or can parties consent to the admission of document without complying with Sub-section 2 of Section 84 of the Evidence Act, 2011. Onnoghen JSC said:
Granted, for the purpose of argument that Exhibits “D” and “L” being computer generated documents or e-documents downloaded from the internet are not public documents whose secondary evidence are admissible only by certified true copies then it means that their admissibility is governed by the provisions of Section 84 of the Evidence Act, 2011, Section 84(1) Provides thus:
“84(1) In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is

20

shown that the conditions in Sub-section (2) of this Section are satisfied in relation to the statement and the computer in question.”
The conditions are:
(a) That the documents containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not or by any individual;
(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) That throughout the material part of that period, the computer was operating properly, or, if not that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the

21

ordinary course of those activities.
There is no evidence on record to show that appellants in tendering Exhibits “D” and “L” satisfied any of the above conditions. In fact, they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under Section 84 of the Evidence Act, 2011.
No wonder therefore that the lower Court held, at page 838 of the record thus:
“A party that seeks to tender in evidence a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to established the conditions set out under Section 84(2) of the Evidence Act, 2011.
I agree entirely with the above conclusion. Since appellants never fulfilled the pre-conditions laid down by law, Exhibits “D” and “L” were inadmissible as computer generated evidence documents.”

At the lower Court, Exhibits 1A, 1B, 26, 27 and 30 were tendered from the Bar and admitted in evidence by the lower Court without any witness giving

22

evidence laying the foundation for the admission of the said document in evidence as provided by Section 84(1) and (2) of the Evidence Act, 2011. Surely, Exhibits 1A, 1B, 26, 27 and 28 were not admitted in evidence by the lower Court as provided for under Section 84(1) and (2) of the Evidence Act.

Olaniyan Esq., of learned counsel to the respondent cited and relied on several decision of the Supreme Court and this Court wherein it was enunciated that, notwithstanding the existence of conditionalities to the admission of certain types evidence, where a party failed to objection to the non-fulfillment of the condition or consented to the admission of such evidence, it would be taken that the conditions have been waived and the evidence could be admitted by the trial Court. It is pertinent to state that all the cases cited and relied on by the learned counsel were decided under the Evidence Act, 2004 before the promulgation of the new Evidence Act 2011. Also the principles of law enunciated in these cases were based on the provisions of Section 96 of the Evidence Act, 2004 which are not impari materia with the provisions of Section 84 of the Evidence Act,

23

2011. On the foregoing premise, it cannot be correct as contended by Olaniyan Esq., that Exhibits 1A, 1B, 26, 27 and 30 were legally admitted in evidence notwithstanding the conditions specified in Section 84(2) of the Evidence 2011. Exhibits 1A, 1B, 26, 27 and 30 were therefore not legally admitted in evidence. Where a law has the effect of making a document inadmissible for non-compliance with its provisions, the document cannot be admitted in evidence even by consent of the parties – Archibong v. State (2006) 14 NWLR (Pt. 1000) P. 349 @ 378, and Agbagin v. State (1967) NMLR P.129.

Where evidence has been improperly received in evidence at the trial, even no objection has been raised, it is the duty of an appellate Court to reject such evidence, and decide the case on the available legal evidence. See Archibong v. State supra at page 377 and Philips v. E.O. C & Industries Co. Ltd (2013) 1 NWLR (Pt. 1336) P.618 @ 637 and Alade v. Olukade(1976) 2 SC 183. Exhibits 1A, 1B, 26, 27 and 30 having been improperly admitted under Section 34 of the Evidence Act, 2011, ought not been relied on by the lower Court in the determination of the appellant’s claim, and the

24

counter-claim of the respondent.

THE APPELLANTS CASE AT THE LOWER COURT
I think it is apt to give a background facts of the appellant’s case. The appellant obtained various bank credit facilities from the respondent which were secured with a legal ties mortgage, personal guarantee and an indemnity unable to repay the obligations as and when due, it requested for the restructure and elongation which was granted, which stood at N297M as at 5/5/2009. The appellant could not pay as agreed, which led to the debit balance of N337, 203,573.09 as at 30/9/2010. The respondent served a letter of demand on the appellant. Not satisfied with the amount being claimed by the respondent, it instituted an action at the lower Court against the respondent.

Pleadings were filed, exchanged and the matters proceed to trial. Witnesses depositions on oath were also filed. By the averment in the Amended statement of Claim, the appellant did not deny being indebted to the respondent, but the amount or quantum of the indebtedness which the appellant alleged has been manipulated by the respondent. Evidence was taken from witnesses and documents tendered in

25

support of the appellant’s defence to the demand of the respondent. In Paragraphs 10 and 17 of the deposition of PW2, Suleiman Yahyah (Chairman of the appellant) he deposed to thus:
“Paragraph 10
. the plaintiff does not deny being indebted to the defendant but the amount being demanded by the defendant is outrageous, unfounded and the defendant through its solicitors have now threatened to take over possession of the property No. 2/3 Ali Akilu Road, Kaduna
Paragraph 12
I am aware that the plaintiff is willing and ready to execute the repayment plans to liquidate whichever amount determined as outstanding to the defendant to the defendant to redeem the mortgages executed in securing the loan within months of filing of the arrival of the Referee.”

By the depositions made in Paragraphs 10 and 12 of the witness statement on oath, of PW2, the appellant did admit its indebtedness to the respondent. The law is trite, an admission is a statement, oral or written (expressed or implied) which is made by a party or his agent in a Civil Proceedings and which statement is adverse to his case. It is admissible against the maker as

26

the truth of the fact asserted in the statement. In a civil case, admissions by a party is an evidence of the facts asserted against, but not in favour of such party. See Nwuke v. UBN (2009) 10 NWLR (Pt. 1148) P. 1 @ 27 where a defendant admits a fact in dispute by his pleadings, that fact is taken as established and formed one of the agreed facts in the case. What is admitted or not disputed needs not be proved. See Agbanelo v. UBN Ltd (2000) 7 NWLR (Pt. 666) P. 534; Okafor v. Dumez (Nig) Plc (1998) 13 NWLR (Pt. 580) P. 88; Abu v. Ughi (1995) 8 NWLR (Pt. 413) P. 533 and Omorhihi v. Enaterwere (1988) 1 NWLR (Pt. 73) P. 746.
On the evidential value of admission in civil proceedings where a party admits the contents of the averments in the statement of claim, Georgewill J.C.A, in considering admitted facts in the case of Eco International Bank Plc v. Nigerian Union of Local Government Employees, Jalingo Local Government Council & Anor (2015) 10 NWLR (Pt. 466) P. 49 @ 84, had this to say:
“The law is and has always been that what is admitted needs no further proof and this is so because in the adversarial system of administration of Justice in operation

27

in our civil jurisprudence, admission is perhaps one of the best forms of evidence in favour of the party whose fact or claim is admitted by the other party. See Sections 20 and 123 of the Evidence Act, 2011; See also FMH v. Commet Shipping Agencies (2009) All FWLR (Pt. 483) 1260, (2007) 12 NWLR (Pt. 1145) 193; Salawu v. Yusuf (2007) AII FWLR (Pt. 384) 230 @ P. 236, (2007) 12 NWLR (Pt. 1049) 707. In law therefore, with the express admission of liability by the 2nd respondent as contained in Exhibit F, there was in my finding no further duty on the appellant to prove the 2nd respondents indebtedness to the appellant. An admission against self interest is completely and sufficiently in my finding discharges the minimal onus of proof on the appellant in the face of the unchallenged affidavit and documentary evidence relied upon by the appellant in the proceedings before the Court below. See Adike v. Obiareri (2002) 4 NWLR (Pt. 758) 537; FCE Ltd v. Anyanwu (1997) 4 NWLR (Pt. 501) 533; Onyenge v. Ebere (2004) 3 NWLR (Pt. 889) 20.”

The appellant alleged manipulation of the accounts in respect of the various loan facilities granted to it by the

28

respondent. The law is trite, where a customer alleges that his account has been manipulated or distorted by alleged debits therefrom, he has the onus to plead and prove the manipulation or unlawful transaction committed in respect of the account. See Kanu Co. Ltd v. FBN Plc (2006) All FWLR (Pt. 337) P. 462 @ 472.

The appellant through PW2 testified that payments were made as part of the repayment of the loan facilities to it by the respondent. There is no evidence adduced by the appellant that such repayments were made. No receipt or bank teller has been tendered in evidence to support such payment. For as held in Saleh v. Bank of the North (2006) All FWLR (Pt. 710) P. 1600 @ 1609.
The best way of proving payment of money into a bank account is by teller or an acknowledgement showing on the face of it that the bank has received the payment. A bank letter duly stamped with the official stamp of the bank and properly-initialed by the cashier, constitute prima facie proof of payment of the sum therein indicated, and a customer after producing such a teller need not prove more unless Payment is being challenged.”

As to Exhibit 20, which was

29

tendered through Pw3, Layiwola Adinola, to show the payments made by the appellant, it was just dumped on the Court. The witness did not link it to the purpose for which it was tendered. The law is trite, it is not the duty of a trial judge to embark on a voyage of discovery to find out for what purpose a document is tendered for admission of evidence by witness. It is the duty of the witness to show and demonstrate to the Court what the document is intended to prove or establish. The principles of law that a document should not just be dumped on the Court, but it must be linked to the issue in dispute or the intendment of its being tendered in evidence, and not for the learned judge to investigate what it has been tendered for, has been lucidly enunciated in a litany of cases. For instance, in Onibudo v. Akibu (1982) 7 S. C. 60 @ 62, the Supreme Court per Bello JSC (as he then was) (of blessed memory) said:
“It needs to be emphasized that the duty of Court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in Court. It is not the duty of a Court to do cloistered Justice by making enquiry into a case

30

outside Court even if such enquiry is limited to examination of documents which were in evidence when the documents had not been examined in Court and their examination out of Court disclosed matters that had not been brought out and exposed to test in Court.”

The witness, PW3 just tendered Exhibit 20 without linking it to the relevant matter it was intended to establish. This also applies to Exhibit 17 which was tendered by the appellant. I am therefore in full agreement with the learned trial judge when he held on page 932 – 933 of the printed record of appeal thus:
I wish to observe here that the plaintiff tendered Exhibit 20 through PW3 the expert witness i. e. the report of the Chartered Accountant. However the said PW3 did not demonstrate to the Court how they verified the charges and rates imputed into the plaintiff’s account or how interest were been(sic) charged on daily basis and at variance with banking practice and customs. Similarly Exhibit 17 was all tendered by the plaintiff i.e. Statistical Bulletin of the CBN, but without explanation or demonstration as to its connection to the plaintiffs evidence in this

31

case.
The duty of the Court in my view is to decide between parties on the basis of what has been demonstrated, tested, canvassed and argued in Court. It is not the duty of the Court to do cloistered Justice by making enquiry into a Case outside Court, even if such enquiry is limited to examination of documents which were in evidence when the documents had not been examined in Court and their examination out of Court disclosed matters that had not been brought out and exposed to test in Court.”

Earlier in the judgment, it has been held that Exhibits 1A, 18, 26, 27 and 30 were wrongly admitted in evidence as computer generated documents under Section 34 (1) and (2) of the Evidence Act, 2011. Without Exhibits 1A, 18, 26, 27 and 30 the appellant had not adduced credible evidence to prove the repayments of the loan facilities granted to it as and due, and also how its account with the respondent has been manipulated as alleged by the appellant. I agree with the learned trial judge when he held on pages 914 -915 of the printed record of appeal that:
In the instant case however, the evidence before the Court is clear that the plaintiff

32

borrowed money from the defendant and has not repaid the loan. That the plaintiff acknowledged its indebtedness but that the amount claimed by the defendant is outrageous and inflated and that the account had been manipulated. However, the plaintiff did not lead evidence as required by law to prove the particulars of the outrageous and inflated figures to show how the amount claimed by the defendant is outrageous and inflated, not (sic) did the plaintiff lead evidence to show how the account has been manipulated by the defendant.”

THE COUNTER CLAIM BY THE RESPONDENT/COUNTER CLAIMANT
The counter-claimant, in Paragraph 21(d) of the statement of claim sought the following relief against the defendants jointly and severally:
“(d) WHEREOF THE COUNTER CLAIMANT CLAIMS FROM THE DEFENDANTS TO THE COUNTERCLAIM BOTH JOINTLY AND SEVERALLY THE SUM OF N288,739,617,63 with interest at prevailing bank interest rate with effect from 30th September, 2009 till judgment and thereafter interest at Court interest rate till the whole judgment debt is paid.”

Having not established his claims by credible evidence, the appeal fails. The facts on

33

which the counter-claim has been predicated are contained in Paragraphs 1-21 of the statement of claim on pages 280 to 283 of the printed record of appeal. While considering the case of the appellants against the respondent, I have had a resume of the arguments canvassed in the respective brief of argument of the parties. I consider it unnecessary to repeat same in respect of this counter-claim, save to adopt same mutatis mutandis, in considering the claims of the counter-claimant. The 2nd respondent in the counter-claim action, Suleiman Yahyah, in Paragraphs 10 to 12 of his depositions in the witness statement on oath, had admitted the indebtedness of the respondent/Appellants to the counter claim. What has been in dispute is the quantum of the indebtedness. In Paragraph 10 and 12 of the witness statement on oath, the 2nd defendant as PW2 deposed to these facts:
“10. The plaintiff does not deny being indebted to the defendant but the amount being demanded by the defendant is outrageous, unfounded and the defendants through its solicitors have now threatened to take over possession of the property No. 2/3 Ali Akilu Road, Kaduna.
12. I am aware that

34

the plaintiff is willing and ready to execute the repayment plans to liquidate whichever amount determined as outstanding to the defendant to redeem the mortgages executed in securing the loan within months of filing of the arrival of the Referee.”

The depositions in the foregoing paragraphs of the witness statement on oath are admissions made by the 2nd respondent in respect of the indebtedness of the defendants to the counter-claimant. The law is trite, what is admitted needs no further proof. Section 123 of the Evidence Act 2011 Provides thus:
123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.

Exhibits 21-25 which were tendered and admitted in evidence from the Bar and Exhibits 28 and 29 are the material evidence which supported the claims of the counter-claimant. Exhibits 21 – 25 are as these:
(i) Exhibit 21: Term loan

35

Agreement dated 29/4/2009
(ii) Exhibit 22: Guaranty and indemnity dated 28/4/2009
(iii) Exhibit 23: Power of Attorney dated 8/1/2008
(iv) Exhibit 24: Deed of Legal Mortgage
(v) Exhibit 25: Certificate of Registration of Deeds of Legal Mortgage.

In a claim of the nature such as that of the counter-claimants claim, there must be cogent and reliable evidence, oral and or documentary showing how the debit balance was arrived at. See Wema Bank Plc v. Ojilaru (2008) WRN Vol.4 P.160 @ 170. The documentary evidence before the lower Court are Exhibits 21-25, 28 and 29 coupled with the oral evidence of DW1 have satisfied the requirements of the law as enunciated in the case of Wema Bank Plc v. Ojilaru supra. The debit balance could be ascertainable from the documentary evidence before the lower Court. The learned trial Judge of the lower Court was therefore right when he held on page 936 of the printed record of appeal that:
In regards to the counter claim of the defendant, I find and hold that on the strength and quality of the evidence and materials presented before this Court, the defendant counter claimant has been able to

36

prove their counter claim against the defendants to the counter claim by preponderance of evidence as required by law.”

The liability of the 2nd defendant in the counter claim is based on Exhibit 22 wherein he stood as an indemnifier for any default in the repayments of the loan facilities, granted to the 1st respondent by the counter-claimant. As to the 3rd defendant to the counter-claimant, her liability is predicated on Section 290 of the Companies and Allied Matters Act, being a director of the 1st defendant at the time the loan facilities in question were accepted and taken from the counter-claimant by the 1st defendant in the counter-claim. In view of the foregoing, I agree with the learned trial judge of the lower Court that the counter-claim has been proved on the balance of probability or preponderance of evidence.

The sole issue, compressed from the issues formulated in the appellant’s and the respondent’s briefs of argument is hereby resolved against the appellant. The judgment of the lower Court delivered on the 27th of February 2014 in suit No. KDH/KD/983/2010 is hereby affirmed. The respondent is entitled to costs assessed at N50,

37

000.00. Same is awarded to him against the appellant.

Other Citations: (2016)LCN/8680(CA)