Equitorial Trust Bank Ltd v Agada (CA/YL/13/2015)[2016] NGCA 14 (27 June 2016) (CA/YL/13/2015) [2016] NGCA 14 (26 June 2016);

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  • Equitorial Trust Bank Ltd v Agada (CA/YL/13/2015)[2016] NGCA 14 (27 June 2016) (CA/YL/13/2015) [2016] NGCA 14 (26 June 2016);

Headnote and Holding:

The matter involved an appeal over a decision made about a contractual dispute between the appellant and the respondent.

The first issue was whether the trial court had jurisdiction to consider a contractual matter between an individual banker and his bank. The court engaged with the interpretation of the relevant constitutional provision (s 251(1)(d)) as given by the Supreme Court and established that it granted concurrent jurisdiction between federal and state High Courts in customer-bank matters. The court reasoned that the provision is an exception to the exclusive jurisdiction enjoyed by federal courts. It concluded that the trial court had jurisdiction, though concurrent, to decide the matter at issue.

The second issue was whether there had been sufficient proof at the trial court to support judgment in favour of the respondent. Acknowledging that this issue required the court to embark on a re-evaluation of the evidence, the court emphasised that interference could only be done if it is shown that the trial court’s judgment was perversely flawed. After reviewing the trial court processes, the court concluded that there was a failure to properly evaluate the totality of all evidence, particularly determining what was admissible or inadmissible, before making its decisions. Since there was proof of an absence of a nexus link between the conclusions of the court and the proven facts, the appellate court could thus interfere and re-evaluate the evidence. The trial court’s judgment was therefore found to be fraught with error and was set aside.
 

 

 
IN THE COURT OF APPEAL
Holden at Yola?
 
 

Between

APPELLANT

EQUITORIAL TRUST BANK LTD

and

RESPONDENT

THOMAS AGADA

JUDGMENT
(DELIVERED BY BIOBELE ABRAHAM GEORGEWILL, JCA)    

This is an appeal against the judgment of the Federal High Court Yola Division in Suit No: FHC/YL/CS/2/2012: Thomas Agada V. Equitorial Trust Bank Limited delivered on 15/12/2014 by B. B. Aliyu J., in which the claims of the Respondent as Plaintiff were granted against the Appellant as Defendant. 

The Appellant was thoroughly dissatisfied with the said judgment and had promptly appealed to this court against the said judgment vide a Notice of Appeal filed on 11/2/2015 on two grounds of appeal. The Record of Appeal was transmitted to this court on 8/5/2015 but deemed duly transmitted on 5/10/2015. The Appellant’s brief was duly filed on 27/11/2015 but deemed duly filed on 2/2/2016. The Respondent’s brief was filed on 18/3/2016 but deemed duly filed on 12/4/2016. The Appellant’s reply brief was duly filed on 12/4/2016.

At the hearing of this appeal on 17/5/2016, Rabiu Ayuba Esq., who held the brief of Ugo Udoji Esq., learned senior counsel for the Appellant, adopted the Appellant’s brief and Appellant’s reply brief as their argument in support of the appeal and urged the court to allow the appeal, set aside the judgment of the court below and dismiss the Respondent’s suit for lacking in merit. On his part, Etim O. Akpan Esq, who held the brief of Onyemaechi Ukaegbu learned senior counsel for the Respondent adopted the Respondent’s brief as their argument in opposition to the appeal and urged the court to dismiss the appeal for lacking in merit and to affirm the judgment of the court below. 

The Respondent as Plaintiff before the court below had instituted an action against the Appellant as Defendant on 9/2/2012 claiming several declaratory reliefs and an order of court directing the Appellant to refund to the Respondent the sum of N177, 050.00 if the transaction between the parties was perfected or the sum N151, 425. 00 if the transaction was not perfected by the Appellant. The parties filed and exchanged pleadings and the matter to trial before the court below.

The gist of the case of the Respondent was that the Respondent was a customer of the Appellant and had applied for the granting of an overdraft facility of N3, 000. 000. 00 to augment his business capital. However, the Appellant only approved the sum of N1, 500, 000. 00 for the Respondent and demanded the payment of the sum of N177, 050. 00 for the purposes of perfecting the Respondent’s security for the overdraft facility, which amount the Respondent paid promptly to the Appellant by bank drafts. As security for the loan facility the Respondent offered his landed property situate at 10 off Jamba Road, Damilu Layout, Yola/Numan Expressway, Yola North LGA, Adamawa State. Subsequently, the approved sum of N1, 500, 000. 00 was disbursed to the Respondent by the Appellant upon his acceptance of the terms and conditions of the offer of the said loan. At that stage it would appear all was well and good between the parties. 

However, the Respondent commenced the due repayment of the loan sum together with the interest charged thereon and upon his completion of the payment of the loan sum plus the accrued interest as at 26/9/2011, the Appellant requested for the refund of the sum of N177, 050. 00 he had earlier paid to the Appellant for the perfection of the Respondent’s security on the ground that it was never expended by the Appellant before the loan plus interested were fully repaid by the Respondent or the sum of N151, 425. 00 being less the sum of N25, 625. 00 only that was supposed to have been expended by the Appellant for the perfection of the Respondent’s security. See paragraphs 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17, 20 and 21 of the Respondent’s Statement of Claim and paragraphs i, iii, iv and v of the Respondent’s Reply to Statement of Defence at pages 8 – 11 and 82 – 90 of the record of appeal. The Respondent testified as PW1 and tendered several documents admitted in evidence as Exhibits: P1, P2, P3, P4, P5, P6 and P7 respectively. He was not cross examined and he closed his case on 14/2/2013. See pages 12- 44, 82 – 90 and 145 – 147 of the record.        

    On the other hand, the gist of the Appellant’s case was that the Respondent was granted an overdraft facility of N1, 500, 000. 00 which he duly accepted on the terms and conditions, including the execution of a direct legal mortgage over the Respondent’s property used as security of the said loan. The Appellant engaged the services of a Solicitor at a fee of N80, 000. 00 to process and perfect the Respondent’s security and which was eventually perfected and all necessary fees paid to that effect and duly receipted for by the relevant authorities and bodies. A total sum of N135, 000. 00 was expended out of the N177, 050. 00 paid by the Respondent, inclusive of the N80, 000. 00 paid as professional fees to the Solicitor that handled the perfection of the Respondent’s security and the balance of N39, 500. 00 was duly remitted to the Respondent vide his bank account with the Appellant. 
The Appellant denied being liable in any way to the Respondent in any sum in respect of the overdraft facility it granted to the Respondent. See paragraphs 5, 6, 7, 8, 9, 11, 13 and 14 of the Appellant’s Amended Statement of Defence at pages 95 – 98 of the record. In the Appellant’s defence, one Silas Ozomabu testified as DW1 and tendered several documents admitted in evidence as Exhibits: DW1A, DW1B, DW1C1, DW1C2, DW1C3, DW1C4, DW1C5 and DW1D respectively. The DW1 was thoroughly cross examined and the Appellant closed its case on 20/2/2014. See pages 95 – 113, 155 – 159 of the record. 

My lords, in view of the pivotal role the views and findings of the court below would play in the consideration of the real crux of this appeal challenging the evaluation  and findings of the court below, forming the basis of the second issue dealing with the merit of this appeal, should the Respondent’s suit be found to be competent before the court below, I deem it apposite at this stage of this judgment to produce at once hereunder in extenso the part of the judgment of the court below very relevant for the consideration of the issues for determination in this appeal, thus;   

              “In this case it must be noted that the Defendant did not deny that it collected the sum of N177, 050. 00 from the Plaintiff for the perfection of his application for the loan of N3million, which later it only approved N1, 500, 000. 00 for him. Also note that the Plaintiff main grudge against the Defendant is that the Defendant asked him to pay the money for the perfection of the transaction upfront. This perfection, from the evidence before me, means payment of Registration of mortgage, payment of taxes to Adamawa State Government etc. Plaintiff said no such payments were made until he repaid the loan of N1, 500, 000. 00 and he informed the Defendant that he did want to take more. He then realized that the sums he paid upfront after applying for the loan of N3million was not expended by the Defendant and he demanded for the refund of same..................... But the Defendant claimed, through its pleadings, that it has done the perfection. I also note that the Plaintiff complained that a large chunk of the sum of N177, 050. 00 he was asked to pay, that is N82, 000. 00 was said to be paid to Bohan Enterprises and the purpose the Plaintiff claimed was unknown. In answer to this, the Defendant said Bahon Enterprises is a warehouse for fees for Solicitors, to which the Plaintiff challenged the Defendant to prove. At this stage the burden of proof shifts to the Defendant to prove how it spent the money it collected from the Plaintiff and to also prove that contrary to the claim of the Plaintiff that the perfection was done before the grant of the facility and not after the Plaintiff had repaid the sum. This the Defendant can do by showing the court the existence of the warehouse account of Bahon Enterprises where the sum of money it claimed to pay him was deposited and/or call the Solicitors who were paid this sums of money. See Section 136(1) of the Evidence Act..................................The evidence of DW1 on this issue was wobbly and not consistent at all. He admitted that the Defendant collected the sum of money based on the initial application of the Plaintiff for N3millio. He also claimed that part of the sum was returned to the Plaintiff’s account only after this suit was filed and the Defendant was served with the court’s processes. In this case, I find that the Plaintiff evidence is stronger and he has proved his case on the balance of probabilities. I therefore, grant all his reliefs in terms of the alternative prayer in relief 4 he has against the Defendant. The Defendant is hereby ordered to immediately refund to the Plaintiff the sum of N151, 425. 00 as part of the N177, 050. 00 which it collected and did not expend. This is less the sum the Defendant is supposed to pay for the perfection of the loan transaction as stated by the Plaintiff. The sum of N50, 000. 00 is awarded to the Plaintiff as general damages for withholding the Plaintiff’s money without just cause” 

See pages 181 – 183 of the record.          

In the Appellant’s brief, Ugo Udoji Esq., learned senior counsel for the Appellant had distilled two issues for determination from the two grounds of appeal, namely: 
1.    Whether the court below being a Federal High Court was right in assuming jurisdiction over the matter which bordered on banker – customer relationship? (Distilled from Ground 1)
2.    Whether from the totality of evidence before the court below, its judgment was based on preponderance of evidence and or on the balance of probabilities? (Distilled from Ground 2)  

In the Respondent’s brief, Onyemaechi Ukaegbu Esq., learned senior counsel for the Respondent had also distilled two issues for determination from the two grounds of appeal, namely:
1.    Whether the trial court had jurisdiction to hear and determine the matter which concerns a dispute between an individual customer and his bank in respect of a transaction between them? (Distilled from Ground 1) 
2.    Whether the Plaintiff (now Respondent) proved the case at the trial court to entitle him to judgment and the reliefs granted? (Distilled from Ground 2) 

I have given due considerations to the pleadings and evidence, both oral and documentary as led by the parties as in the printed record. I have also calmly reviewed the judgment of the court below and considered the submissions of counsel to the respective parties. It does appear o me that both issues as distilled by the respective learned senior counsel are not only similar but also apt. However, the two issues as distilled by the Respondent’s counsel appears to me to be more precise and they are hereby adopted and set down as the two issues for determination in this appeal, a consideration of which, in my view, would invariably involve a due consideration of the two issues as distilled by the Appellant’s counsel. The two issues for determination are therefore as follows: 

1.    Whether the trial court had jurisdiction to hear and determine the matter which concerns a dispute between an individual customer and his bank in respect of a transaction between them?  
2.    Whether the Respondent proved the case at the trial court to entitle him to judgment and the reliefs granted?  

I shall proceed anon to consider these two issues for determination ad seriatim, commencing with the first issue for determination.

ISSUE ONE
Whether the trial court had jurisdiction to hear and determine the matter which concerns a dispute between an individual customer and his bank in respect of a transaction between them?  

Learned senior counsel for the Appellant submitted that by the provisions of Section 251(1)(d) of the Constitution of Nigeria 1999 as amended and the proviso thereto, the subject matter of the Respondent’s suit anchored on the contractual relationship between the Appellant, a bank and the Respondent, its customer was outside the jurisdiction of the court below being a Federal High Court to entertain and determine being bereft of any jurisdiction to do so. Counsel relied on Okezie V. Nigerian Stock Brokers Ltd. (2008) All FWLR (Pt. 442) 1192 @ p. 1204; Njokonye V. MTN Nig. Communications Ltd. (2008) All FWLR (Pt. 413) 1343 @ p. 1368.

Learned senior counsel for the Appellant further submitted that in any matter in which the Federal High Court enjoys concurrent jurisdiction with the State High Court, it can only exercise jurisdiction if the parties include the Federal Government or any of its agencies and contended that the jurisdiction of the Federal High Court unlike the State High Court is not to be implied but is specifically provided for and urged the court to resolve the first issue in favour of the Appellant. Counsel relied on African Newspapers & Ors. V. FRN (1985) 2 NWLR (Pt. 13)71.

On his part, learned senior counsel for the Respondent submitted that the contention by the Appellant’s counsel that the Federal High Court lacked the jurisdiction to entertain the Respondent’s suit by virtue of Section 251 (1) (d) of the Constitution of Nigeria 1999 as amended and the proviso thereto was most misconceived and contended that the proviso merely provides for concurrent jurisdiction of the Federal 

High Court and the State High Court over matters relating to transaction between an individual customer and his bank as in the present appeal. Counsel relied on NDIC (Liquidators of Allied Bank of Nigeria Ltd.) V. Okem Enterprises Limited) & Anor (2004) 10 NWLR (Pt. 880) 107 @ pp. 183, 191 – 192.

Learned senior counsel for the Respondent further submitted that by the said proviso the Federal High Court which shares jurisdiction with the State High Court over the matters stated therein, which includes the Respondent’s claims, was clothed with jurisdiction to entertain and determine the Respondent’s suit as it did and contended that all the cases relied upon by the Appellant’s counsel were inapplicable and do not avail the Appellant and urged the court to resolve the first issue in favour of the Respondent.

In the Appellant’ reply brief, learned senior counsel for the Appellant submitted that the Respondent’s claim against the Appellant was founded on breach of and therefore outside the jurisdiction of the Federal High Court and reiterated his reliance on all the cases he had earlier relied in as being apposite to the instant appeal. 

Now, by Section 151(1)(d) of the Constitution of Nigeria 1999 as amended, the Federal High Court is conferred with exclusive jurisdiction over all the matters covered by paragraphs (a) – (s) of Subsection (1) of Section 251 of the Constitution of Nigeria 1999 as amended. Thus in matters falling under the provisions of Section 251(1)(a) – (s) of the said 1999 Constitution as amended, the Federal High Court exercises jurisdiction to the exclusion of all other courts in the land notwithstanding anything to the contrary contained in the said Constitution of Nigeria 1999 as amended. 

The above provision poses not much difficulty in its interpretation and has happily been blessed with the profound pronouncements of the Apex Court and this Court in a plethora of decided cases as are replete in the law reports. However, the crux of the first issue for determination in this appeal and which has over the years confronted the courts is the proper interpretation of the proviso to paragraph (d) of Subsection (1) of Section 251 of the Constitution of Nigeria 1999 as amended as to its purport and scope of application.

In the instant appeal, while it is the vehement contention of the Appellant’s counsel that the court below lacked the jurisdiction to entertain the claims of the Respondent bordering on contractual transaction between the Appellant, a bank and the Respondent, its customer, by virtue of the proviso to Section 251(1)(d) of the Constitution of Nigeria 1999 as amended, being  a Federal High Court and thus rendered the judgment of the court below liable to be set aside having been given without requisite jurisdiction, the Respondent’s counsel had with equal vehemence contended on a proper interpretation of the proviso to paragraph (d) of Subsection (1) of section 251 of the said 1999 Constitution as amended, the Federal High Court has concurrent jurisdiction with the State High Court over the subject matter of the Respondent’s claim and thus the judgment entered thereon by the court below was one given in the exercise of its requisite jurisdiction and therefore valid.  

My lords, happily this is an area of the law, as I had earlier observed in this judgment, blessed with emphatic pronouncements of the Apex Court, the Supreme Court and this Court as to the correct interpretation of the provisoto paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution as amended. It is therefore, to some of these decided cases, I shall now turn my attention but first what does the said proviso provides?
By Section 251 (1) (d) of Constitution of Nigeria 1999 as amended, it is provided thus: 

                  “251: Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction of any cause in Civil Causes and Matters – 

                             (d): Connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action against the Central Bank of Nigeria, arising from banking, foreign exchange, Coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures;

                    Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transaction between the individual customer and the bank,”

     Now, it is common ground between the parties that the claims of the Respondent as endorsed on the writ of summons filed on 9/2/2012 and as averred in the Respondent’s Statement of Claim fall squarely within the provisions of the proviso to paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution as amended. There is no iota of dispute on this fact and I so hold. So has the Federal High Court the jurisdiction to entertain and determine the Respondent’s claims as it did in the instant case? 

In the cases of Okezie V. Nigerian Stock Brokers Ltd. (supra); Njokonye V. MTN Nig. Communications Ltd. (supra), having taken time to read through the law reports, it would appear that the issue of the proviso to paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution as amended was not directly in issue as the issue involved in those cases was whether a claim involving contractual relationship is one within the exclusive jurisdiction of the Federal High Court by virtue of Section 251(1) of the 1999 Constitution of Nigeria as amended?  In both cases, the issue was resolved in the negative. It is thus very pertinent to note, as urged upon this court by the learned senior counsel for the Respondent, that none of these cases involved a claim between an individual customer and his bank as specifically provided for in the proviso to paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution of Nigeria as amended.        

In the instant appeal, it is not the contention of any of the parties that the subject matter of the Respondent’s claim was within the exclusive jurisdiction of the Federal High Court as both parties are ad idem that it is not within the exclusive jurisdiction of the Federal High Court to entertain the Respondent’s claim to the exclusion of other courts in the land. Both parties are also agreed that the Respondent’s claim is squarely within the proviso to paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution of Nigeria as amended.

In the light of the limited scope of the issue in contention between the parties in this appeal as to whether or not by the proviso to paragraph (d) of Subsection (1) of Section 156 of the 1999 Constitution of Nigeria as amended the subject matter of the Respondent’s claim is within the jurisdiction of the Federal High Court, I cannot but agree completely with the correct and unassailable submission by learned senior counsel to the Respondent that the cases relied upon by the Appellant’s counsel, which cases I have also taken time to peruse, are not of any help and thus are of no avail to the Appellant in his contention on the first issue for determination and I so hold. 
On his part, the learned senior counsel for the Respondent had also relied on some decided cases, of which I have also taken time to peruse and it would appear that these decisions are right on point to the first issue under consideration. 

In NDIC (Liquidators of Allied Bank of Nigeria Ltd) V. Okem Enterprises Limited & Anor (supra), the Supreme Court frontally dealt with the provision of the proviso to paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution of Nigeria as amended, which I must observe is directly in issue in the first issue for determination in this appeal, and emphatically pronounced per Uwaifo JSC, thus:        
                       “Clearly the proviso in question in Section 251(1)(d) to put it in simple analysis, says the Federal High Court will have exclusive jurisdiction in having matters but when waht is involved is individual customer and his bank transaction, the Federal High Court shall not have exclusive jurisdiction. Understandably, that was to recognise the jurisdiction the State High Courts had been exercising in such matters which Section 272 (1) of the Constitution impliedly preserves. The High Court of a State can only exercise jurisdiction in any aspect of such special matters to the extent that the proviso to Section 251(1)(d) permits. The said proviso cannot be interpreted to have the effect of conferring exclusive jurisdiction on the State High Court and completely taking away the jurisdiction of the Federal High Court to entertain causes or matters relating to individual customer and bank transactions”

My lords, to drive home the point being made here to the effect that the jurisdiction of the Federal High Court was not ousted by the proviso to paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution as amended in favour of only the State High Court but only made the jurisdiction of the Federal High Court concurrent with the jurisdiction of the State High Court to entertain and determine matters touching on the said proviso, let us hear the wise words of the Supreme Court still in the case of NDIC V. Okem Enterprises ltd (supra) but this time per Kutigi JSC (as he then was but later CJN) in his contribution inter alia thus: 

                       “The question which easily comes to mind is this: Does this proviso excluded the Federal High Court from exercising jurisdiction in the area contained therein, or is the Federal High Court not allowed to exercise exclusive jurisdiction in the area and in which case it shares jurisdiction concurrently with other Courts, in this case the State High Courts? The proviso to my mind is intended not to deny the Federal High Court of jurisdiction in the matter or area stated. The proviso is an exception to the “exclusively” the rule embodied in Section 251 (1) (d). In other words, it is a proviso to the provision of paragraph (d) of Section 251 (1) only. Now, it should be appreciated that the words or provision ‘any dispute between an individual customer and his bank in respect of transactions between individual customer and the bank’ covered by the proviso is an area already covered by the main paragraph (d) itself before the proviso. It will therefore, be unreasonable to read the proviso as totally denying jurisdiction in an area where the main paragraph (d) has already conferred jurisdiction. What the proviso has done in my view therefore, is simply to remove ‘exclusive’ of jurisdiction in the area stated in the proviso of paragraph (d). In other words, the Federal High Court can exercise concurrent jurisdiction in the area stated or mentioned in the proviso”

The Supreme Court has spoken in very clear and lucid voice on the correct interpretation of the proviso to paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution of Nigeria as amended and I have heard. There is therefore, nothing left to ponder on or agitate my mind on this issue than to simply bow to the ingrained wisdom in the words of the Supreme Court on this issue and so I bow! By the time tested and honoured doctrine of stare decisis this court, being lower in the hierarchy of courts to the Supreme Court, is bound without any option or exception to obey and must apply the interpretation already given to the proviso to paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution of Nigeria as amended to the resolution of the first issue under consideration in this judgment. See Amimike Invetsment Ltd. V. Ladipo (2008) 45 WRN 92 @ p. 97, where the Supreme Court had pronounced thus:

                           “Where a lower court in the judicial hierarchy is called upon to interpret the provisions of Statute, which provision had already been interpreted by a higher court in the hierarchy, the formers’ task is made easier since by the doctrine of stare decisis the lower court must abide by the interpretation given by the superior court in the earlier case”

See also Achebe V. Nwosu (2012) FWLR (Pt. 106) 1000 @ pp. 1019 – 1020; Odugbo V. Abu ( 2011) 14 NWLR (Pt. 1732) 45; Usman V. Umaru (1992) 1 NWLR (Pt. 254) 377; Young V. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293 @ p. 300.

I am thus embolden and fortified in my reasoning and I so hold that by virtue of the proviso to paragraph (d) of Subsection (1) of Section 251 of the 1999 Constitution as amended, the Federal High Court has concurrent jurisdiction with the State High Court to hear and determine any matter falling within the proviso to paragraph (d) of Subsection (1) of Section 251 of the said 1999 Constitution of Nigeria as amended. Thus, the Federal High Court, though it has no exclusive jurisdiction over the matters as stated in the said proviso, retains its concurrent jurisdiction with the State High Courts over such matters as are covered by the said proviso. See Gabisal Nigeria Ltd & Anor. V. NDIC (2008) LPELR 4177 (CA). See NDIC V. Okem Enterprises Ltd & Anor (2004) All FWLR (Pt. 210) 1176 or (2004) 10 NWLR (Pt. 880) 107 @ pp. 183, 191 – 192; FMB of Nigeria V. NDIC (1992) 2 NWLR (Pt. 591) 333; Societe Bancaire Nig. Ltd. V. De Linch (2004) 11 – 12 SC 75; 

In bringing the consideration of the first issue to a close, I am aware and averted my mind to the subtle submission of Appellant’s counsel that in all matters in which the Federal High Court has concurrent jurisdiction with the State High Court it can only exercise such concurrent jurisdiction if the parties include the Federal Government or any of its agencies. Curiously, as ambitious as this proposition of law was as made by the Appellant’s counsel, no single authority, either statutory or judicial was relied upon in support thereof and I can very well understand the reason why it was so. It is simply because indeed none such authority exists in support of such a sweeping proposition of law and none was revealed to me in the course of my in-depth research in the preparation for the writing of this judgment. I therefore, do not accept that proposition as representing the correct statement of the law as it is not well founded. 

 At any rate, and on the contrary, the issue of what as between the subject matter of a claim and the status of parties would determine the jurisdiction of the courts, including the Federal High Court, has long been well settled by the courts. The law is that it is the subject matter and not necessarily the status of the parties that would ordinarily determine the jurisdiction of the court. See Felix Onuorah V. Kaduna Refining and Petrochemical Co. Ltd. (2005) 6 NWLR (Pt. 921) 393, where Akintan JSC, had emphatically pronounced thus:

                            “The question whether the Respondent is a subsidiary or agent of NNPC or not has no role when a consideration of the jurisdiction of the court is being made”

I therefore, have no difficulty resolving the first issue for determination in the positive in favour of the Respondent against the Appellant and hold firmly that the Federal High Court, the court below, had the jurisdiction, though concurrent and not exclusive, to hear and determine the Respondent’s claims against the Appellant as it did in the judgment now appealed against to this court in this appeal.  

ISSUE TWO
                Whether the Respondent proved his case at the trial court to entitle him to judgment and the reliefs granted?  

Learned senior counsel for the Appellant submitted that the court below failed to properly evaluate the evidence, both oral and documentary as led by the parties before finding for the Respondent and contended that the copious documentary evidence tendered by the Appellant and which showed that the Respondent did not make out any claims against the Appellant were completely ignored by the court below and thus leading to the perverse finding that the Respondent had proved his case on a balance of probabilities. Counsel relied on Union Bank Of Nigeria Ltd. V. Prof. Ozigi (1994) 3 NWLR (Pt. 385) 400.

 Learned senior counsel for the Appellant further submitted that on the copious documentary evidence of the Appellant, particularly Exhibits DW1A, DW1B and DW1C1 – C4, the Appellant satisfactorily discharged the burden placed on it by the court below to show how the money it collected from the Respondent for the perfection of his security for the loan granted to him was duly expended and how the deed of legal mortgage was duly perfected and contended that the court below failed to evaluate any of the copious documentary evidence of the Appellant but simply preferred the oral unsupported evidence of the Respondent over and above the unchallenged documentary evidence of the Appellant and thus arrived at the perverse finding that the Respondent proved his claims against the Appellant. Counsel relied on Union Bank of Nigeria Ltd V. Prof Ozigi (supra) @ p. 400; Lasisi Ogbe V. Sule Asade (2010) All FWLR (Pt. 510) 612 @ p. 632; Egharevba V. Osagie (2010) All FWLR (Pt. 513) 255 @ p. 277.          

Learned senior counsel for the Appellant also submitted that the court below in finding that only the sum of N25, 620. 00 was “supposed to have been expended” as claimed by the Respondent without any documentation proof offered as against the copious documentary proof of actual expenditures by the Appellant for the perfection of the Respondent’s security acted clearly against the weight of the evidence led and arrived at perverse findings that the Respondent proved his claims against the Appellant, which finding ought to be set aside and urged the court to so set it aside. Counsel referred to the Blacks Law Dictionary 7th Edition @ p. 1555 and relied on Onu V. Idu (2006) All FWLR (Pt. 328) 691 @ p. 716; Mini Lodge Limited V. Ngei (2010) All FWLR (Pt. 506) 1806 @ p. 1834; Oshie SAN V. Okin Biscuits Ltd. (2010) All FWLR (Pt. 528) 825 @ pp. 832 – 833; Iheanacho V. Chigere (2004) All FWLR (Pt. 226) 204 @ pp. 223 – 224; Adebayo V. Shogo (2001) All FWLR 739 @ p. 744; Dagayya V. The State (2006) All FWLR (Pt. 308) 1212 @ pp. 1230 – 1231.

On his part, learned senior counsel for the Respondent submitted that the Respondent through credible cogent evidence placed before the court below proved his case against the Appellant and was thus entitled to the reliefs claimed against the Appellant as rightly found by the court below and contended that on a balance of probabilities the Respondent proved that the Appellant in breach and abuse of their contract deliberately overcharged the Respondent for perfection of the security, which allegation the Appellant duly admitted and contended that the court below properly evaluated the evidence of the parties and came to the correct findings that the Respondent proved his case against the Appellant on a preponderance of the evidence led by the parties. Counsel relied on Mogaji V. Odofin (1978) 4 SC 93.

 Learned senior counsel for the Respondent also submitted that on the unchallenged evidence of the Respondent, which the court below ought to and rightly acted upon, the Respondent had on a balance of probabilities proved his claim that the Appellant deliberately expended his deposit on perfection of the deed after he had paid off the debt and resiled from the loan agreement. Counsel relied on Osuji V. Ekeocha ( 2009) 7 SCNJ 248 @ p. 272; Obineche V. Akujobi (2010) 6 SCNJ 88 @ p. 117.

     Learned senior counsel for the Respondent further submitted that the deed of legal mortgage contained at pages 63 – 69 of the record of appeal was neither signed nor executed bt the parties and contended that in law an unsigned document is useless and cannot be relied upon by the court for any purposes whatsoever and urged the court to resolve issue two in favour of the Respondent and dismiss the appeal for lacking in merit and to affirm the judgment of the court below. Counsel relied on Abia State Government V. Agharanya (1996) 6 NWLR (Pt. 607) 362 @ p. 371.
In reply on law, learned senior counsel for the Appellant submitted that the court below was under a duty to evaluate and not ignore the copious documentary evidence placed before it by the Appellant showing the due expenditures of the Appellant on the perfection of the Respondent’s security for the loan he was granted and contended that the failure of the court below to do so lead to the perverse findings of the court below. Counsel relied on Ogbe V. Asade (supra) @ p. 612; Egharevba V. Osagie (supra) @ p. 1255.  

On the deed of legal mortgage, learned senior counsel for the Appellant submitted that it was tendered in evidence and duly signed by the parties and contended that at any rate it was tendered to prove that it was duly stamped and registered upon the payments of the requisite fees as evidenced in Exhibits DW1C1 and DW1C2 and urged the court to allow the appeal. Counsel relied on Akinlagun V. Oshoboja (2006) All FWLR (Pt. 325) 53 @ p. 76.
In considering the second issue for determination in this appeal, which by its nature is a clarion call on this court to embark upon a re-evaluation of the evidence, both oral and documentary of the parties as in the printed record, I bear in mind and thus not unmindful of the well settled position of the law that the primary duty of evaluating, reviewing and ascribing probative value and relative weight to the evidence as led by the parties is that of the trial court, as in the instant case the court below. It is thus the indisputable primary duty of the trial court not only to merely review or restate the evidence led before it by the parties but to critically appraise and evaluate it in the light of the issues of facts as disclosed and joined by the parties and in the course of doing so determine which evidence is relevant or admissible or credible or incredible and which weight to attach to the evidence. 
Consequently, once a trial court had carried out this primary duty correctly and come to a right conclusion and sound decision in its judgment that is the end of the matter as no appellate court worth its name and honour would interfere where the conclusion reached by the trial court was right and its decision sound on the evidence as led before it. See TSA Industries Ltd. V. Kema Invetstments Ltd. (2002) 2 NWLR (Pt. 964) 300. See also Agbomeji V. Bakare (1998) 9 NWLR (Pt. 564) 1; Okada Airlines Ltd. V. FAAN (2015) 1 NWLR (Pt. 1439) 1@ p. 23. 

It is thus the law that it is only when a trial court had not carried out its primary duty correctly or shrieked from its responsibility to do so or had reached wrong conclusions not flowing from the admitted evidence before it or has misapplied the relevant principles of law to the established facts before it and had in all these instances occasioned a miscarriage of justice that an appellate court will be duty bound to interfere to re – evaluate the evidence on the printed record, particularly in circumstances not involving the credibility of witnesses to make proper findings as justified by the evidence on the printed record. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Olanade V. Sowemimo (2014) 9 SCM 106 @p. 121; CSS Bookshop Ltd. V. The Regd. Trustees Muslim Community in Rivers State (2006) 4 SCM 310; Mogaji V. Odofin (1978) 4 SC 91; Ojokolo V. Alamu (1998) 9 NWLR (Pt. 565) 225; Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574; Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182; Nwoti V. Mbonu (2012) QRR 53; Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458; Bida V. Abubakar (2011) 5 NWLR (Pt. 144) 384; Mini Lodge Ltd. Ngei (2010) All FWLR (Pt. 506) 1806

              An appellate court would therefore, readily interfere to re-evaluate the evidence in the printed record if is shown that the findings or decisions of the trial court was perverse in that the conclusion drawn from the proved facts does not flow there from or runs contrary to such proved facts. However, it is not the law that a judgment of a court is bound to be reversed on account of every error found in it but rather the law is that an error that will lead to a reversal of the judgment of a court must be one that is substantial and had caused a miscarriage of justice. See Oladele V. Aromolaran II (1996) 6 NWLR (Pt. 453) 180. See also NBC Ltd. V. Olarenwaju (2007) 5 NWLR (Pt. 1027) 255; Okada Airlines Ltd. V. FAAN (Supra) @ p. 22; Owor V. Christopher (2010) All FWLR (Pt. 511) 962; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247.

My lords, in resolving this issue as joined by the parties in their pleadings and the evidence led as in the record, the court below ought primarily to have borne it in mind that the burden of proof in cases other than criminal cases is not static in that it depends largely on the issues of facts as joined by the parties in their pleadings, so much so that the burden of proof or evidential burden properly so called, shifts from one party to the other depending on who positively asserts what and on whom the burden of introducing evidence lies. See Sections 131, 132, 133 and 134 of the Evidence Act 2011. See also Odofin V. Mogaji (1978) 11 NSCC 275, Lawson V. Manuel (2006) 10 NWLR (Pt. 989) 569; Agboola V. UBA Plc. (2011) 11 NWLR (Pt. 1258) 375; Anambra State Govt. V. Gemex Int. Ltd. (2012) 1 NWLR (Pt. 1281) 333; Miller V. Minister of Pensions (1947) 2 All ER 372; Mil. Gov. of Lagos State V. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Fayemi V. Oni (2010) 17 NWLR (Pt. 966) 78; INEC V. Ifeanyi (2010) 1 NWLR (Pt. 1174) 98; C.C.C.T.C.S. Ltd. V. Ekpo (2008) 6 NWLR (Pt. 1083) 362; Andem V. Etim (2010) 14 NWLR (Pt. 1185) 489; Ojo V. Kamalu (2005) 18 NWLR (Pt. 958) 523; AG. Bayelsa State V. AG. Rivers State (2006) 18 NWLR (Pt. 1012) 596.

Generally, however, the onus probandi will lie on the party who will fail if, on the state of the issues as joined by the parties in their pleadings, no evidence at all was led. Thus, in most cases, the general onus of proof lies on the Claimant who will fail if no evidence was called, though that is not to say that there are no cases in which on the state of the issues as joined by the parties in their pleadings, the general burden of proof lies on the Defendant. See Alao V. Kure (2000) FWLR (Pt. 6) 889.

It is thus now well accepted as settled law that the onus of introducing evidence, otherwise referred to as the evidential burden, lies on each of the parties to lead evidence in support of all positive assertions made by such a party and not either admitted or not effectively denied or traversed by the other party. This is so because in law generally, the onus of proof is on the party who asserts the positive and not on the party who asserts the negative. The law is and has always been: he who asserts must prove! See Ayinde V.Abiodun & Ors. (1999) 8 NWLR (Pt. 616) 587. See also Ewo & Ors. V. Ani & Ors. (2004) 3 NWLR (Pt. 861) 610 @ p.630; Trade Bank Plc. V. Chami (2003) 13 NWLR (Pt. 836) 158 @ p. 204; Osawura V. Ezeiruka (1978) 6 – 7 SC 135 @ p. 145; Umeojiako V. Ezenamuo (1990) 1 NWLR (Pt. 126) 225; Ugbo V. Aburime (1993) 2 NWLR (Pt. 273) 101.    

In determining therefore, on who lies the burden of proving any fact in issue, it must be constantly borne in mind that no onus lies on a party who allegation of fact is admitted by the other party. This is so because in law facts admitted need no further proof as admission is perhaps one of the strongest form of evidence available in any proceedings between parties in the court. See FCE V. Anyanwu (1997) 4 NWLR (Pt. 501) 533. See also Lewis Peat (NRI) Ltd. V. Akhimien (1976) All NLR 460.

Now, it is well settled that pleadings not only define the issues in dispute between the parties, they also highlight matters on which there is agreement between them and any admitted fact need not be proved by the other party. See Balogun V. Egba Onikolobo Community Banak (Nig) Ltd. (2007) 5 NWLR (Pt. 1028) 584. See Hon. Zubairu & Anor. V. Lliyasu Mohammed & Ors. (2009) LPELR 5124 (CA).        

I have looked at Ground 2of the grounds of appeal from which the second issue was distilled and I have borne it in mind that when in an appeal, an Appellant employs the phrase that the “judgment is against the weight of evidence” it simply postulates that there was no evidence which if accepted would support the findings of the trial court or the inference which it had made. It could also mean that when the evidence adduced by the Appellant is balanced against that adduced by the Respondent on the imaginary scale of justice, the judgment given in favour of the Respondent would be against the weight, which should have been given, having regard to the totality of the evidence before the court. See Mogaji V. Odofin (1978) 4 SC 94; UBN Ltd. V. Borini Promo Co. Ltd. (1998) 4 NWLR (Pt. 547) 640; Anyaoke & Ors. V. Aidi & Ors (1986) 3 NWLR (Pt. 751) 1.

I am aware that the evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial court but yet that duty is not discharged simply by the use of the words “I find” or “I believe” without demonstrating any reason for such a belief or preference. There is therefore, in law nothing magical about the words “I find” or “I believe” when used by a trial court, once it is not supported by verifiable reason (s) on the printed record it amounts to naught!

On the record of appeal it is clearly obvious that both parties tendered at the trial several documents in evidence in support of their respective cases and on the strength of the pleadings, the case was more of documentary than oral since it involved written agreement and evidence of payments. In my view therefore, in evaluating the evidence before the court below as in the record, these copious documentary evidence ought to be given its primus place by the court below and the salient question therefore, is: Did the court below do so? While the Appellant says it did not, on the other hand, the Respondent says it did. 

Now, in law what is the role or use of the copious documentary evidence placed before the court below by the parties and demonstrated in the open court through their respective witnesses, PW1 and DW1? The law is that whenever there is before the court, on an issue of fact in dispute between the parties, both oral and documentary, the documentary evidence most often is earlier in time than the oral evidence and should be used as hanger on which to assess the veracity of oral evidence and the reason for this is not farfetched but simply that more often than not it is much easier for oral evidence to be twisted and as an afterthought than documentary evidence, though not ruling out the possibility in this age of technology of a document being also made to tell a lie. At any rate, documentary evidence has always and had remained the best evidence, particularly where it is neither discredited nor controverted by the other party. See Kimdey V. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445; Owena Bank Plc. V. Otatunji (2002) 12 NWLR (Pt. 781) 559; Skye Bank Plc V. Akinpelu (2010) 42 NSCQR 540; Ngige V. Obi (supra) @ p. 233.

In the light of the above, I deem these documentary evidence so pertinent that I shall reproduce the contents of some of the most crucial ones in this judgment for the purposes of clarity and to aid proper analysis to see whether the court below failed to carry out proper evaluation of these documents and arrived at perverse findings as contended by the Appellant or whether it carried out proper evaluation and arrived at correct findings as contended by the Respondent. 

By Exhibit P1, the Respondent applied to the Appellant on 14/7/2009 for an overdraft facilioty of N3, 000, 000. 00 to augment his working capital in his business. In support of his application and in consideration for the offer by the Appellant vide Exhibt P4, the Respondent presented his property situtate at #10 Off Jamba Road, Damilu Layout Yola?Numan Expressway Yola North LGA Adamawa State as security for the loan facility. The Respondent, upon the request of the Appellant, issued some bank drafts for some amounts as evidenced in Exhibit P3 in favour of Adamawa State Government, FIRS and Bahon Enterprises respectively. in Exhibit P4, the execution of a direct legal mortgage over the Respondent’s property offered as security and perfection of same was made one of the conditions precedent for drawing down on the loan facility granted to the Respodnent by the Appellant.  The Respondent drew down on the facilities as can be seen in Exhibit DW1D.

Now, the crux of the Respondent’s case was that having paid back the loan granted to him by the Appellant, which was only N1, 500, 000. 00 as opposed to the N3, 000, 000. 00 he applied for, the money he paid for the perfection of the security having not been expended as at the time he fully repaid the loan to the Appellant should either be refunde in full to him or half of the amount be refunded to him in view of the fact that it was only N1, 500, 000. 00 that was approved and disbursed to him by the Appellant. At any rate, it was alos the Respondent’s case that the only legal fess for the perfection of his security was “supposed to be the sum of N25, 625. 00” and he was thus entitled to a refund of the payment he made less the sum of N25, 625. 00.

On the other hand, the Appellant through the DW1 tendered some documents on which it relied upon to explain the expenditures for the perfection of the Respondent’s security for the loan facility granted to the Respondent by the Appellant. In Exhibit DW1A, on 23/8/2011 upon payments of requisite fees, an approval/consent was granted by the Adamawa State Government for the registration of the deed of legal mortgage on the Respondent’s property used by him as the security for the loan. In Exhibit DW1B, the direct deed of legal mortgage was duly signed by both parties and duly registered on 9/11/2011 as No. 8269 at page 8269 in Vol. 64 (Misc) of the Lands Registry in the Office  at Yola. In Exhibit DW1C 1 – C3, these are expenditure for the perfection of the security offered by the Respondent and duly receipted for by the receiving authorities. In Exhibit DW1C4, the Appellant engaged the services of a Solicitor at a professional fees of N80, 000. 00 to process the application for and perfect the Respondent’s security for the loan. In Exhibit DW1C5, the Solicitor engaged by the Appellant duly completed the perfection of the Respondent’s security and on 9/12/2011 demanded for the payment of his professional fees of N80, 000. 00 through his bank account with the Appellant.   In Exhibit DW1D, the Appellant on 21/3/2012, while this suit was pending, cerdited the Respondent’s account with the sum of N39, 500. 00 as a refund from the sum of N177, 050. 00 paid by the Respondent as balance less expenditures for the perfection of the Respondent’s security. 

My lords, all these documents were tendered in evidence without any objection and were before the court below when it evaluated the evidence of the parties but without even a single refrence  to or drawing any inference from any or all of these documents or disbelieving them before arriving at its findings now being appealed against by the Appellant and which findings I had earlier reproduced in extenso in this judgment.  In the circumastances, I cannot but agree completely with the submissions of the Appellant’s counsel that the court below indeed failed woefully to proper appraise and evaluate the totality of the evidence, both oral and documentary as led before it by the parties before arriving at its findings and decisions in the judgment appealed against. 

Now, while it is true that it is not the duty of the court to do cloistered justice by embarking on an inquiry into the case outside of what was demonstrated in the evidence before it, yet it is the sacred duty of the court, particularly trial courts such as the court below, to appraise, consider, review and evaluate the totality of the evidence led before it and in so doing to determine which evidence is admissible or inadmissible, relevant or irrelevant to the facts in issue, credible or incredible and of what weight. A court that fails in this latter duty fails in its entire duty of being an impartial arbiter in the adversary system of administration of justice in this country. 
No court or tribunal worth its’ name, I venture to say, would act as mere robot in accepting hook line and sinker or willy nilly every pieces of evidence , whether credible or not, led before it to make finding of facts merely because it was not cross examined upon or objected to at the time it was received. The evaluation of relevant and material evidence and ascription of probative value to such evidence, both oral and documentary, are the primary functions, within the domain, of the trial court, which it is to be remembered and constantly kept in the mind of the appellate court, saw, heard and assessed the witnesses. See Mogaji V. Odofin (Supra); Ojokolo V. Alamu (1998) 9 NWLR (Pt. 565) 225.

Courts of law are neither robotic nor manned by robots. They are manned by persons trained in the art of perception and of sound mind, evaluative spirit and ingrained sense of justice and fair play. They carry out their scared duties by way of review, evaluation, appraisal and ascription of probative values to the end that cases are decided as best as they can on admissible and credible evidence only.  See Michael Hausa V. The State (1994) 7 – 8 SC 144, where it was pronounced emphatically thus:

                 “A court is expected in all proceedings before it to admit and act only on evidence which is admissible in law..............and so if the court should inadvertently admit inadmissible evidence in law it has a duty generally not to act upon it. It is the duty of the opposite party or his counsel to object immediately to the admissibility of such evidence, although if the opposite party should fail to raise objection in such circumstances, the court in civil cases may (and in criminal cases must) reject such evidence exproprio motu”

This point was also aptly captured in Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574 @ p. 582, where it was observed thus:

            “Receipt of relevant evidence is an act of perception while evaluation of evidence entails the weighing of evidence, bearing in mind the surrounding circumstances of a case. Findings of facts by a trial court involves both perception and evaluation”

It is to be noted that in carrying out evaluation of evidence, a very tough turf for the courts, a court is not to merely review or restate the evidence but is expected to critically appraise it in the light of the facts in issue, what is relevant, admissible and what weight to be attached. In other words, evaluation of evidence is much more critical, crucial and tasking than mere review of evidence. It is instructive to note that unlike mere review of evidence, its actual evaluation involves a reasonable belief of the evidence of one of the contending parties and disbelief of the other or reasoned preference of one version to the other. There must be an indication on the record as to show how the court arrived at its conclusion preferring one piece of evidence to the other. Thus in law, the reaching of conclusions by drawing necessary inference is a   product of legal mind not an indulgence in speculation. See Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458.  

In law, an Appellate court will therefore, readily intervene to re - evaluate the evidence on the printed record if it is shown, as it has been shown by the Appellant in the instant appeal, that the conclusions drawn by the lower court on the proved evidence before it do not flow from such proved and established facts or that they run contrary to such proved facts and are thus perverse. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1. See also Owhor V. Christopher (2010) All FWLR (Pt. 511) 962. In  Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307, the court pronounced emphatically thus: 

                     “A decision is said to be perverse when it is speculative, not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law, and an Appellate court can interfere with a decision of the trial court that is perverse.”   

In my finding, the court below failed woefully, in its half hearted and inadequate review and evaluation of the copious evidence before it, and ignored to ascribe any probable value to all the Appellant’s expenditures duly receipted for and the refund of N39, 500. 00 made to the Respondent on 21/3/2012. The loan granted to the Respondent by the Appellant, and both parties are ad idem on this, was a secured loan and not an unsecured loan and therefore, in my view, it was immaterial in law that the loan was fully repaid or paid off with accrued interest before the perfection of the Respondent’s security was completed since it was not an unsecured loan. To hold therefore, as did the court below that the Respondent having paid off the loan plus accrued interest was entitled to a refund of the money paid for the perfection of the security which was not completed at the time the Respondent paid off the loan plus accrued interest was, in my view, clearly erroneous and perverse as it converted the secured loan granted to the Respondent by the Appellant into an unsecured merely because it was liquidated. 

In law, and by virtue of Exhibit P4 as duly executed between the parties, the perfection of the security offered by the Respondent was a condition precedent to draw down on the loan by the Respondent and therefore, becomes a vested interested to be discharged by the Respondent in favour of the Appellant and thus not subject to any refund save unexpended part thereof. By Exhibit DW1C4 and DW1C5, documents which were not in the least challenged by the Respondent, the Appellant engaged the services of a Solicitor to process the perfection of the Respondent’s security at a professional fee of N80, 000. 00. There was no issue as to the adequacy or inadequacy of the professional fees for the Solicitor’s fees and it was also not in issue whether the Appellant’s Solicitor was entitled to payment of professional fees or not and there was also no evidence before the court below that the services of the Solicitor was rendered for free or pro bono.  In law, in the usage and custom of the legal profession, payment of professional fees for professional services rendered is usual. 

I have looked at the judgment of the court below on the face of the printed record of the evidence led by the parties and the copious documentary evidence, which I have taken time to properly evaluate, the court below having failed woefully, with due respect, to do so, particularly Exhibits P1, P2, P4, DW1A, DW1B, DW1C1 – C5 and DW1D which were not challenged or controverted in any way by the Respondent and thus remained good evidence on which the court below ought to have acted and I find as fact that the Appellant duly expended the total sum of N137, 550 out of the sum of N177, 050. 00 paid by the Respondent on the perfection of the Respondent’s security for the loan graciously disbursed to him even before the perfection of the preconditions for drawn down as in Exhibit P4 accepted and duly signed by both parties. I find further as fact that by Exhibit DW1D, the sum of 39, 500.00 being the balance from the N177, 050. 00 paid for the perfection of his security by the Respondent had been duly refunded to the Respondent by the Appellant on 21/3/2012.

Had the court below exercised even the least patience to properly evaluate the copious documentary evidence before it, it would have most certainly and readily found out that by Exhibit DW1C5, the perfection of the Respondent’s security had been completed as at 9/12/2011 and the Deed of legal mortgage duly registered on 9/11/2011, all these steps were duly completed and concluded with before the writ of summons of the Respondent was filed on 9/2/2012.

On the admitted evidence therefore, the sum of N137, 550. 00 out of the sum of N177, 050. 00 paid by the Respondent to the Appellant was the amount duly expended on the perfection of the Respondent’s security by the Appellant and duly receipted for by Exhibits DW1A, DW1B, DW1C1, DW1C2 and DW C3, leaving a balance of N39, 500. 00 as unexpended, which in my finding is the sum due refundable to the Respondent by the Appellant. In circumstances therefore, by Exhibit DW1D, the amount of N39, 00. 00 having been duly refunded to the Respondent by the Appellant, the sum of N151, 425. 00 as ordered to be refunded to the Respondent by the Appellant out of the sum of N177, 150 .00 by the court below was without any basis both in law and on the facts on the face of the clear documentary evidence before the court below, which were not even in the least evaluated or put into any use by the court below. 

It must be pointed out at once that in law the fact that the PW1 was not cross examined does not ipso facto elevate every pieces of evidence given by him as credible and probable, particularly on matters which are purely documentary in nature and even not within the personal knowledge or duty of the Respondent and which to be credible needs the documentary or other direct evidence of persons whose duty it was, such as receipt of payment for perfecting security and necessary fees payable but which were not forthcoming. Thus, in my view, the viva voce evidence of the PW1 as to the amounts payable to different relevant authorities for the perfection of the security cannot in the absence of any documentary evidence from the PW1 to that effect or direct evidence of the persons in charge be regarded as credible and far and above the documentary evidence from the responsible authorities by the Appellant showing concrete evidence of payments of stamp duties, consent fees, registration fees and professional fees. 

In my finding therefore, there was no rational or factual or legal basis for the preference given to the oral unsupported evidence of the PW1 over and above the authentic copious relevant documentary evidence tendered by the Appellant. The court below therefore, in my view, did not a better appreciation of the cases as presented before it by the parties and failed to show even how it arrived at N151, 425. 00 as being due to the Respondent from the Appellant which amount is even is less than the sum of N25, 626.00 of claimed by the Respondent to have been the “supposed expenditure” for the perfection of his security from the sum of N177, 050 paid by the Respondent.
In the circumstances therefore, I hold that the order and conclusion of the court below was gravely in error when it ordered in its judgment thus: 

                         “The defendant is hereby ordered to immediately refund to the Plaintiff the sum of N151, 425. 00 as part of the N177, 050. 00 which it collected and did not expend, this is less the sum the Defendant is supposed to pay for the perfection of the loan transaction as stated by the Plaintiff” 

See page 183 of the record.

The above order and findings of the court below are utterly perverse and not borne out by the totality of the evidence before the court below as in the printed record, particularly the copious documentary exhibits. It is neither the Respondent nor the Appellant who fixes or determines the amount of fees payable for the perfection of a deed of legal mortgage, which was a condition precedent as agreed between the parties for draw down of the loan by the Respondent. The duty to do so is that of the responsible agents of Government and there were are copious payments receipts from these agents of Govt for the consent, stamp duty and registration of the deed of legal mortgage, which regrettably were completely ignored by the court below in its half hearted evaluation of the evidence led by the parties in its judgment.  In my finding, the Respondent having been duly refunded with the due balance of N39, 500. 00 by the Appellant was not entitled to any further sums and the order of the court below awarding him the further sum of N151, 425. 00 clearly amounted to double compensation to which the Respondent is not entitled to receive from the Appellant. In law, such a baseless order cannot be allowed to stand but must be set aside and I so hold. 

I  therefore, find it so curious that apart from a rehearse as by way of reproducing the evidence of the PW1, the court below exerted not even an iota of effort at evaluating the entirety of the evidence, both oral and documentary, as by putting them on the imaginary scale of justice as enunciated in Mogaji V. Odofin (1978) 4 SC 91 @ pp. 93 – 96, to see where it preponderance of evidence lies even if the allegations were to be civil in nature, of which it is not. I find the misuse of the words “I find that the Plaintiff’s evidence is stronger” by the court below as banal and empty without any or basis and thus without any weight. See Alhaji Akibu V. Opaleye ( 1974)  11 SC 189 @p. 803. See Oladehin V. Continental Textile Mills Ltd. (1978) 2 SC 17; Board of Custom & nExcise V. Alhaji Barau (1982) LPELR 788 (SV); Fabuminyi V. Obaje (1968) NMLR 24; Woluchem V. Gudi (1981) 5 SC 291.

It is in the light of all my findings as above that I find the submission of the Respondent’s counsel, a submission which is totally in sync with the views and findings of the court below, a little baffling  and most misconceived and unfounded, when he submitted thus: 

                       “We submit that on a balance of probabilities, the Respondent established his claim at the trial, ie that the Appellant deliberately expended his deposit on perfection of the Deed after he had paid off the debt and resiled from the loan agreement” 

Now, was the loan granted by the Appellant to the Respondent without any security? On the evidence in the printed record the answer is a resounding No! Was the loan an unsecured loan? Still on the evidence No! Was the perfection of the security dependent upon repayment of the loan by the Respondent? Certainly, the answer is still No!  See Exhibit P4.  Was the loan agreement which had already been executed and the loan money disbursed to the Respondent by the Appellant still capable of being resiled from by the Respondent before the perfection of the security for the loan? The answer is still No! Was there in fact left in the loan agreement for the Respondent to resile from at the stage of full repayment of the loan plus accrued interest? None I can find on the evidence. 

The fact that the Respondent expressed his intention not to renew the loan facility upon his full repayment of the loan plus accrued interest does not in law, in my view, be akin to or equated with the Respondent resiling from a completed contract with the Appellant as erroneously, with respect, contended by the Respondent’s counsel. The loan granted to the Respondent by the Appellant, in my finding, was and remained a secured loan, secured by the Respondent’s property through a deed of legal mortgage over the Respondent’s property and therefore in law, in my view, even if the loan plus accrued interest were repaid on the very next day after it was disbursed, the security for the loan was still subject to be perfected as a secured loan. On the strength of the evidence in the printed record coupled with the documentary Exhibits therefore, I hold firmly that the Respondent proved nothing against the Appellant and was thus entitled to nothing from the Appellant contrary to the perverse findings of the court below. 

I therefore, have no difficulty resolving the second issue for determination in the negative against the Respondent in favour of the Appellant and hold that the Respondent as Plaintiff before the court below failed woefully to prove all or any of his claims against the Appellant and was thus not entitled to any of the reliefs claimed by him against the Appellant as erroneously granted to him by the court below. The Respondent’s claims ought to have been dismissed for lacking in merit.

On the whole, having resolved the second issue, which is most crucial issue touching on the merit of this appeal, I hold that this appeal is highly meritorious and ought to be allowed. Consequently, it is hereby allowed. 
In the result, the judgment of the Federal High Court in Suit No: FHC/YL/CS/2/2012:  Thomas Agada V. Equatorial Trust Bank Limited delivered on 15/12/2014 is hereby set aside. In its stead, The Respondent as Plaintiff’s Suit filed on 9/2/2012 against the Appellant as Defendant is hereby dismissed for lacking in merit.

Consequently, the Respondent is hereby ordered to return forthwith the judgment sum together with the cost awarded in favour of the Respondent against the Appellant by the court below, if already paid, to the Appellant. I make no order as to cost. 

JUMMAI HANNATU SANKEY
I had a preview of the Judgment just delivered by my learned brother, Georgewill, J.C.A. I agree with his reasoning and conclusions. I will, with respect adopt them as my own. 
I will also allow the Appeal and abide by the consequential orders.

SAIDU TANKO HUSAINI
I agree

?COUNSEL

Rabiu Ayuba Esq., holding the brief of Ugo Udoji Esq., learned senior counsel for the Appellant.
Etim O. Akpan Esq, holding the brief of Onyemaechi Ukaegbu Esq, learned senior counsel for the Respondent.