MAINSTREET BANK LIMITED
GENERAL STEEL MILLS LIMITED
GENERAL PIPE INDUSTRY LIMITED
UNITED METAL PLASTICS LIMITED
INTERNATIONAL ENAMEL WARE INDUSTRY LIMITED
(Delivered By TIJJANI ABUBAKAR, JCA)
This appeal is against the Judgment of the Federal High Court, Lagos Division delivered by I. N. Buba J. on 28/06/2013 in suit No: FHC/L/CS/522/2009.
The summary of the case at the Court below is that the suit was instituted by the Respondents as Plaintiffs against the Appellant as Defendant, somewhere along the line the learned counsel for the Appellant abandoned the case, consequently the Respondents as Plaintiffs opened their case in the absence of the Defendant and/or its counsel, the case of the Defendant was closed and the suit was adjourned for final address all in the absence of the Defendant. Afterwards, another counsel sought to be substituted for the previous counsel on record who had abandoned the Defendant/Appellant, and sought by a Motion on Notice that the case be re-opened for the defendant to be heard, the Plaintiffs/Respondents opposed the said Motion and the Court in its Ruling refused the application to have the case re-opened for the defense to be heard. The Court thereafter delivered judgment in favor of the Plaintiffs/Respondents. The Defendant became aggrieved by the judgment and therefore filed the Notice of Appeal herein. The Notice of Appeal dated 5/8/2013 and filed 6/8/2013 contains three Grounds of Appeal; the grounds less their respective particulars are reproduced as follows:
1. The learned Mai Judge erred in law when the Court delivered its Judgment and held that the Defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the Court
2. The Honorable Court misdirected itself when on the one hand the Court relied wholly on the case of and submissions of the Plaintiffs (now Respondents) and held that their testimony was unchallenged and as such deemed admitted by the Defendant, was unchallenged and as such deemed admitted by the Defendant, and on the other hand regarding the Written Final Address submitted by the Defendant (now Appellant) held that submissions that are not backed by evidence goes to no issue. So also pleadings that is not supported by evidence is deemed abandoned.
3. Whether the Honorable Court did not misdirect itself when it awarded the sum of N33,891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo) as money deducted from the Plaintiffs account and interest on the judgment sum at the rate of 21 % from December2007 till judgment and 6% from the date of judgment until it is finally liquidated.
The learned counsel for the Respondent nominated two issues for determination; the issues are also reproduced as follows:
1. Whether having regard to the facts, circumstances, records and the judgment of the trial court, the Appellant was not given ample opportunity of fair hearing in the court below.
2. Whether on the evidence presented before the Lower Court by the Respondents, a case had been properly made out to warrant judgment on the Statement of claim.
I have carefully examined the issues submitted for determination, I am of the view that Appellants issues for determination are capable of providing platform for discourse in this appeal, I therefore adopt them as the issues to resolve in the determination of this appeal. Let me quickly add, that Appellants issues two and three shall be discussed and resolved together.
In his submissions, learned counsel for the Appellant referred to NZEKWE V. ANAEKWENEGBU  16 NWLR (Pt. 1274) 431 at 436 and U.B.N. PLC V. LAWAL  6 NWLR (Pt. 1295) 186 at 191 to submit that Rules of Court must be interpreted in such a manner as to prevent undue adherence to technicalities, and that parties should not be punished for the mistake and inadvertence of Counsel when such mistake or inadvertence is in respect of procedural matters. He submitted that the previous counsel for the Defendant (now Appellant) never withdrew from the suit before the Court below in accordance with the Rules of the Court, but rather abandoned the case and contended that the Appellant should not suffer for the omission and mistake of Counsel.
Learned counsel argued that the trial Court neglected the essence of the Rules of Natural Justice and fundamental principles of Audi Alteram Partem by ruling against the Appellant and refusing to grant the orders sought by its Notice of Change of Counsel. He cited ELIAS Vs. SOWEMIMO  4 NWLR (Pt. 1289) 63 at 66, EMEKA Vs. OKADIGBO  18 NWLR (Pt. 1331) 55 at 70 and EKPENETU Vs. OFEGOBI  15 NWLR (Pt. 1323) 276 at 284-285 and submitted further that, the right to fair hearing which is constitutionally provided for under Section 36 (1) of 1999 Constitution (as Amended) is so fundamental that it cannot be expressly or impliedly waived nor taken away by statute.
In his response on this issue, learned counsel for the Respondent contended that the Appellant showed a consistent lack of interest in defending the suit before the lower Court despite being regularly informed by correspondence of the progress of the matter, He added that the Appellant had more than enough time to be heard but failed to act on that right, he submitted that the Appellant did not utilize the opportunity offered by the Court. He relied on the decisions in MICRO-LION INTERNATIONAL (NIG) LTD. Vs. GAZADIMA  14 NWLR (Pt. 1162) 481 CA at 486 and ASSOCIATED ELECTRONIC PRODUCTS (NIG) LTD Vs. AADE INDUSTRIAL AND INVESTMENT COMPANY LTD.  44 WRN 181 at 183 to submit that the grant or refusal of an application falls within the discretionary powers of the Court which must be exercised judicially and judiciously in considering the conduct of the Appellant, and that the refusal by the lower Court to reopen the case was in exercise of the Court's discretionary powers having regard to the Appellant's conduct throughout the trial of the case at the lower Court.
Learned Counsel referred to Order 7 Rules 1(1) and (2), Order 8 Rules 1 and 2, and Order 14 Rules 1 and 7 of the Federal High Court (Civil Procedure) Rules 2009 to submit that the where a defendant is in default of appearance, a plaintiff may apply to a judge for judgment for the claim on the originating process or such lesser sum and interest as the Judge may order. He submitted further that though the Court would not punish a party for the mistakes of his counsel, however, equity aids the vigilant and not the indolent and delay defeats equity. He cited COLITO (NIG.) LTD V. DAIBU  2 NWLR (Pt. 1178) CA 217 and AUDU V. INEC (No. 2) 13 NWLR (Pt. 1212) CA 456 at 475 to submit that an Applicant relying on the above stated rules of Court must show that his conduct is not reprehensible and that there was no delay on his part in bringing the application. He submitted further that fair hearing does not apply where the litigant has missed the opportunity given to him to ventilate his grievance at the hearing of a case, and that the Appellant was given ample opportunity to be heard in line with Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Learned counsel referred to WILLIAMS & ORS V. HOPE RISING VOLUNTARY FUNDS SOCIETY  All NLR 1 & 2 SC 145 and IDAM UGWU & ORS. V. NWAJI AND OTHERS (1962) ALL NLR 438 to submit that the Court in exercising its discretion to consider an application made out of time would consider the Rules of court and the conduct of the Appellant throughout the proceedings. Learned counsel for the Respondent further submitted that where a party to a suit has been accorded reasonable opportunity to be heard and for no justifiable or cogent reason neglects to attend the sitting of the Court, he is thereafter deemed to have abandoned his case and cannot complain of breach or denial of fair hearing. Learned counsel referred to ABANA V. ONI  6 NWLR (Pt. 920) 183 at 189 and urged this Court to hold that the Appellant was given ample opportunities but failed to defend the suit and therefore cannot be heard to complain of the breach of his right.
In the Reply brief, learned counsel for the Appellant reiterated his earlier submissions that the case of the Defendant/Appellant was closed on the day the case was listed and adjourned for mention and not for trial and that no Hearing Notice was served on the Appellant. He referred to ASHIRU V. AYOADE  6 NWLR (Pt. 976) 405 at 425 - 426 Para. G - A and submitted that in refusing to reopen the defense wrongfully closed by the Court on a date that the case was adjourned for mention, and the failure to serve any Hearing Notice, the lower Court closed the door to fair hearing on the Appellant and sacrificed substantial justice to the alter of speed and quick justice.
The crux of this issue is whether or not the trial court erred in holding that the Appellant/Defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the Court. The contention of the Appellant is that the refusal by the trial court to re-open the case amounted to a violation of its right to fair hearing under section 36 (1) of 1999 Constitution of the Federal Republic of Nigeria (as amended).
To resolve this Issue it is necessary to x-ray the proceedings of the lower Court, this will be done to determine whether from the proceedings, it will be obvious that the appellant in this appeal was truly denied fair hearing. For this purpose therefore the records of appeal particularly pages 1-240 of Vol. I of the records are relevant, the records show that the suit was instituted by the Respondents against the Appellant by a writ of summons dated 20/5/2009 and accompanied by a Statement of claim and other documents at the lower court. Page 241 of Volume I of the record reveals that the matter came up before the lower court for the first time on 26/6/2009 and the Appellant was absent and unrepresented. The case was then adjourned to 16/7/2009 for mention, on the 16/17/2009, the Appellant was again absent and unrepresented, the Respondents on the other hand sought an adjournment to be heard on their motion dated 13/7/2009 seeking an order of court to enter judgment against the Appellants (Defendants at the lower court) in default of appearance and pleadings. The court adjourned to 5/10/2009 for hearing, these facts are contained at pages 243 - 252 of Volume I of the records of appeal.
At pages 257 - 259 of Volume I of the records of appeal, the Appellant, by a motion on Notice dated 2/10/2009, sought for an order of the lower court for an extension of time within which it could file and serve its memorandum of appearance and statement of defense and an order of the lower court deeming its memorandum of appearance and statement of defense as properly filed and served. The Appellant also filed a motion for striking out of the Respondents' (plaintiff's) statement of claim, which was also dated 2/10/2009.
As recorded at pages 402 - 404 of Vol. II of the records, on the adjourned date, the Respondent's counsel did not oppose the motion for the extension of time, and in fact, withdrew their motion dated 13/7/2009 for an order of court to enter judgment against the Appellants (Defendants as the lower court) in default of appearance and pleadings. The Court granted the prayer for the extension of time and struck out the motion for judgment. The Appellant (Defendant's) counsel sought for an adjournment for hearing on its other motion for order of court striking out the Respondents' (plaintiffs') statement of claim, the court adjourned to 10/11/2009 to hear the motion for striking out.
The records also show that parties were absent but were represented by their respective counsel on the 4/2/2010 at page 478 of Vol. II of the records; 29/4/2010 at page 497 of Vol. II of the records; 24/5/2010 at page 501 of Vol. II of the records; and on 13/7/2010 at page 667 of Vol. II of the records, Respondents (Plaintiffs) were represented by one D. Isikwere. The court adjourned to 25/10/2010 for trial.
However, on 25/10/2010 as can be seen at pages 668 - 669 of Vol. II of the records, Appellant and its counsel failed to appear before the lower court, while the plaintiffs were represented by one D. Isikwere. Trial commenced with PW1 giving evidence in chief, and the court adjourned to 14/12/2010 for continuation of trial.
On 14/12/2010, Appellant and its counsel were again absent in court without any notice conveying reasons for its absence, the court adjourned to 7/2/2011 for continuation of trial and ordered service of hearing notice. The Respondents' counsel by a letter at page 675 of Vol. II of the records dated 14/12/2010 addressed to A.C. Igboekwe, the counsel who had been representing the Appellant at the lower court, informed them of the position of the case and that the matter had been adjourned to 7/2/2011. The Notice of hearing served on the Appellant's counsel and received by one Blessing O., Secretary in the law firm is exhibited at page 674 of the records.
On 7/2/2011, the Appellants were again absent in court, the lower court closed the case of the Respondent and opened the case of the defense. The Court adjourned to 17/5/2011 and ordered issuance of hearing notice. Records show that the Appellant was absent and unrepresented in court without any notice on 14/11/2011; 8/5/2012; 28/6/2012; 20/11/2012; 5/2/2013 and
26/2/2013. Meanwhile, the Respondents consistently served on the Appellant letters informing them of the position of the case and the date the matter had been adjourned to. The letters are exhibited at pages 706 706D and 711, of Vol. II of the records dated 14/12/2010 addressed to A.C. Igboekwe, the counsel who had been representing the Appellant at the lower court.
Meanwhile, at page 712 of Vol. II of the records, in a letter dated 1/3/2013 addressed to the Respondents' (Plaintiffs') Counsel by one Chibuzo Anaeto (Miss) of Andy Igboekwe & Co, indicated that they were no longer the solicitors to Mainstreet Bank Plc. and advised that the Appellant should serve all court processes on the Bank directly. To this end, the Respondents counsel wrote the Appellant bank directly vide letter dated 4/3/2013 informing it of the pendency of the matter before the court and the next adjourned date which was 6/3/2013; this letter is at page 713 of Vol. II of the records.
On 6/3/2013, the court did not sit. Respondents again wrote a letter dated 7/3/2013 which is exhibited at page 715 of Vol. II of the records informing the Appellant bank directly of the matter and the next adjourned date being 12/4/2013. It is pertinent to note that the letters directed to the Appellant Bank were acknowledged as received. On 12/4/2013, the Appellant was again absent and unrepresented; the Court closed the plaintiff's case and adjourned to 8/5/2013 for adoption of final written address, page 716 - 717 of Vol. II of the records confirms this. Again, the Respondent's counsel wrote the
Appellant bank directly vide a letter dated 30/4/2013 exhibited at 717A of Vol. II of the records informing the Appellant of the progress of the case and the next adjourned date.
On 8/5/2013, as shown at page 718 - 719 of Vol. II of the records, Mr. Ikenna Onwusika and Edward Porbeni appeared for the Appellant. The lower Court held that there was no valid notice of change of counsel and that the erstwhile counsel did not withdraw but only abandoned the court. The Learned trial judge adjourned to 15/5/2013 for addresses. Thereafter, the new counsel for the Appellant filed a motion on notice for change of counsel dated 9/5/2013. The motion is exhibited at page 721 -727 of Vol. II of the records. The new counsel also filed a motion seeking the Order of the lower court to allow the Appellant (Defendant) to reopen its case which had been closed on 12/4/2013 in the absence of the Defendants.
On the next adjourned date, 15/5/2013, the Respondent's counsel did not object to the Notice of change of counsel but opposed the Appellant's Motion to reopen its case. The court adjourned to 12/6/2013 for the hearing of the motion, page 739 - 740 of Vol. II the record shows all these facts. The Appellant's counter-affidavit dated 5/6/2013 was supported by exhibits and written address, which can be seen at page 743 - 760 of Vol. II of the records.
On 12/6/2013, the lower court heard the motions of counsel and adjourned to 17/6/2013. On 17/6/2013, the court received the counter affidavit of the Respondents to the Appellants motion, and then the court delivered its ruling wherein the court dismissed the Application of the Appellants. The ruling is contained at 1021 - 1023 of Vol. Ill of the records of appeal. Parties thereafter adopted their final written addresses and the court adjourned for judgment. The final judgment of the lower court delivered on 27/06/2013 is contained at page 1074 -1137 of Vol. Ill of the records.
From the records as summarized above, it is without doubt that the submission of the Appellants counsel that the Appellant was never served is incorrect and untrue. The Respondent informed the Appellant's counsel who abandoned the case and upon receipt of that counsel's letter that they no longer represent the Appellant, the Respondent directed the letters of Notice to the Appellant. Despite all these, the Appellant failed to show up in court until it was apparently too late for them to do so.
It is trite that the court is a place where serious businesses are conducted and those who have business in the court must take it with all sense of seriousness, respect and reverence. I must state that the attitude of the erstwhile counsel for the Appellant at the lower court who without notice abandoned the court is blameworthy and unbecoming of a responsible legal practitioner. The duty of a Counsel who has been briefed by a litigant and has accepted the brief is to present his client's case with utmost devotion, sincerity and honesty and where the counsel wishes to withdraw appearance from representing a client in court, his duty is to duly inform the court. See OGBORU & ANOR Vs. UDUAGHAN & ORS (2013) LPELR-20805(SC), CHUKWU & ANOR Vs. INEC & ORS (2014) LPELR-22221(SC) 52 and NGERE & ANOR Vs. OKURUKET & ORS (2014) LPELR-22883 (SC) 25. However, a litigant has a duty to be vigilant and diligent towards his case, it is not enough for a litigant to brief a counsel and then go to sleep. The cause of action affects the litigant more directly than the counsel and the Appellant herein should have been more than concerned in seeing that the case was diligently prosecuted. It is not enough for a litigant to entrust his case in the hands of Counsel and recline his seat and go to sleep.
In the case of OKOCHA Vs. HERWA LTD (2000) 15 NWLR (Pt. 690) 249 it was held as follows and I quote:
"The business of the Court must be conducted with expedition; and a counsel who was not in Court at the time his client's case was called could not blame anybody but himself, I also accept that it is wrong in principle to visit the sin of a counsel on his client but in the instant case both the client and his counsel were in sin and I do not see the justification to penalize the party that was in Court at the proper time to argue its case only because of such principle of not visiting counsel's sin on the litigant."
See: also GOV BENUE STATE Vs. NIGERIAN CONSTRUCTION CONSORTIUM LTD (1997) 3 NWLR (Pt. 495) 610 and NIGERIAN AGRICULTURAL & COOPERATIVE BANK LTD Vs. MR. LEWECHI OZOEMELAM (2004) LPELR - 5955.
Learned Counsel for the Appellant also argued that the appellant was denied fair hearing. In SUNKANMI ADEBESIN Vs. THE STATE (2014) LPELR-22694 (SC) 40 it was held as follows and I quote:
"The general rule as provided by the Constitution is certainly trite that the principle of fair hearing is not negotiable. The question however, is whether the appellant was infact denied such right in the case at hand. If the answer is in the positive, the outcome of the entire proceeding would be vitiated and nullified."
Can it therefore be said from the records of proceedings and the materials before the Court, which I have already summarized above that the Appellant in the instant case was denied fair hearing?, the answer is definitely in the negative. The Appellant who was given enough time to defend the case against it but abandoned its defense in court cannot claim denial of fair hearing, the Court cannot wait for a party until he is sufficiently pleased to appear in Court in the name of fair hearing. See MFA & ORS Vs. INONGHA (2014) LPELR-22010 (SC) 26. where the Supreme Court per NGWUTA, JSC held on the principle of fair hearing as follows and I quote;
"The process of fair hearing is a two-edged sword and it cuts both ways - appellants have a right to a fair hearing and fair hearing implies also that the respondent as plaintiff is entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting justice. On the facts of this case, I hold that the appellants could not substantiate their allegation of denial of fair hearing".
I adopt the holding by my Lord Ngwuta JSC and hold that the Appellant in this appeal cannot allege denial of fair hearing, the lower Court was generous and lavish in accommodating the sluggish attitude of the appellant. The Appellant had ample time to defend its case but failed to do so. When opportunity is given to a party to defendant an action, and the party for some reasons decides to drag its feet, the Court has discharged its obligation to the party, and if the party fails to take advantage of the opportunity, the Court is not to blame; the sluggish party must bear the consequence. This issue is therefore resolved against the Appellant.
ISSUES TWO AND THREE
I shall take the arguments of the Appellant on issues 2 (two) and 3 (three) together. The argument of the Appellant under issue 2 (two) is that there was no basis to deem the evidence and testimony of the Respondents' Witness as unchallenged and that unchallenged evidence cannot be conclusive proof of a Plaintiff's case when the law specifically sets out conditions to be met before the Court can hold that the Plaintiff's case succeeds. He referred to the following cases: ABI Vs. C.B.N.  3 NWLR (Pt. 1286) 1 at 16, ONYIA Vs. ONYIA  3 NWLR (Pt. 1286) 182 at 184, SLJUADE V. OYEWOLE  11 NWLR (Pt. 1311) 280 at 288, UJOATUONU Vs. ANAMBRA STATE GOVT.  15 NWLR (Pt. 1217) 421 at 439-440,
OMOREGBE Vs. LAWANI (1998) 3-4 SC 108 and CONSOLIDATED BREWERIES PLC Vs. AISOWIEREN  FWLR (Pt. 116) 959 at 990; (2001) 15 NWLR (Pt. 736) 424 to submit that the Plaintiffs have a duty to prove their case and succeed on the strength of their case and cannot be allowed to rely on the weakness of the case of the Defendant. He argued that the case of the Respondents was not proved and accordingly should not be allowed to succeed, and that if the Plaintiff has not proved his case, evidence of rebuttal does not arise.
Learned counsel further submitted that it is the role of the trial Court to make findings of facts based on the credibility of the witness who testified and the probability of their story, and to properly evaluate the totality of evidence before coming to a decision to believe or disbelieve a witness or piece of evidence in the just determination of the case. He referred to LAYINKE & ANOR Vs. MAKINDE & ORS  10 NWLR (Pt. 775) 358 at 375; ATANDA Vs. AJANI  3 NWLR (Pt. 111) 511 at 524 and ARABAMBI Vs. ADVANCE BEVERAGES IND. LTD  19 NWLR (Pt. 959) 1 at 8.
Learned counsel for the Appellant argued that the issue before the trial Court was highly contentious and the case was not undefended, and the refusal of the lower Court to re-open the case of the Defense to be heard on the merits is a fundamental error that led to substantial injustice in the determination of the suit. He postulated that the justice of the case demands that the matter be sent back to the trial Court for hearing on the merit. He referred to GAM BO Vs. IKECHUKWU  17 NWLR (Pt. 1277) 561 at 564 and H.B. (NIG.) PLC V. LODIGIANI (NIG) LTD  14 NWLR (Pt. 1213) 330 at 336. Learned counsel further submitted that no hearing notice was issued and served on the Defendant/Appellant or on the Counsel for the Defendant on record as at the date the case of the Defendant was closed. He therefore urged this Court to allow the appeal.
On issue number three Learned counsel for the Appellant contended that the basis of the Judgment of the court below for the sum of N433, 891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo) in favor of the Plaintiffs/Respondents was based on the erroneous conclusion that the Plaintiffs/Respondents engaged the services of their accountant who reviewed and analyzed the transaction, calculated the figure and arrived at the sum as the amount overcharged by the Defendant/Appellant. He contended further that the process is flawed and there was no expert opinion received during the course of trial to justify the claimed figures, and that the evidence of the Plaintiffs' witness amounts to hearsay and his report was not duly stamped, the lower Court therefore ought not to have acted upon it.
Learned counsel submitted that the trial Court misdirected itself when it awarded the said sum of Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo because the sum was arrived at based on a faulty computation using the wrong parameters contrary to the established trade practices in the banking system that commercial banks advance credit to business entities for profit, interest and charges do not come free of charge. He submitted further that the Court below misdirected itself when it awarded 21% of Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo as prejudgment sum from December 2007 till judgment was given, and also awarded Five Million Naira as damages.
Learned Counsel urged this Court to allow this appeal, set aside the judgment of the Court below and the orders made pursuant to the said judgment, and to dismiss the case of the Respondents. Alternatively, learned counsel urged this Court to make an order remitting this case back to the Federal High Court, Lagos division for full trial on the merits before another judge.
On issue number two, learned Counsel for the Respondents submitted that Exhibits P3A1 - P3A29 were admitted in evidence before the trial Court as documentary evidence, and that the lower Court in no way misdirected itself in relying on the submissions and evidence of the Respondents in the absence of the Appellant. He referred to C.D.C. NIG. LTD Vs. SCOA NIG.LTD  30 WRN 81 SC at 93, and OLALOMIIND. LTD Vs. NIDB LTD  16 WRN (Pt. 1167) 266 SC at 277, Counsel submitted that the 32 exhibits which were tendered by the Respondents witness, Mr. Daniel Isikhumen, the Assistant Manager, Administration and Operation (Liaison Office) of the 1st Respondent Company were all admitted by the Court and neither the Appellant nor its counsel attended the trial proceedings to challenge the evidence laid before the Court despite being issued several hearing notices and letters informing them of the dates and.
Learned counsel submitted that the established evidence clearly settles this issue in favor of the Respondents as the evidence was unchallenged and not contradicted, and ought to be accepted by the Court. He referred to P.C.O OLUDAMILOLA Vs. THE STATE  2-3 SC (Pt. 111) 194 at 209, ADIM Vs. NBC LTD  9 NWLR (Pt. 1200) 543 SC at 549, AKINOLA Vs. UNIVERSITY OF ILORIN  35 WRN 79 CA at 89 and OGBE Vs. ASADE  18 NWLR (Pt. 1172) 106 SC at 112 and submitted that the Appellant had a duty to rebut the evidence at trial by cross-examining the witness yet they failed to do so.
Learned counsel further contended that the case of ABI Vs. CBN  3 NWLR (Pt. 1286) 1 at 16 relied on by the Appellant was quoted out of context, and that the Respondents/Plaintiffs succeeded on the strength of their case. Counsel further contended that the submissions of the Appellant that the case of the Respondents was based on a flawed report which was arrived at through a flawed process has no legal or factual basis, and that there was no evidence of such at the Court below and such conclusion cannot in be sustained.
Learned Counsel for the Respondents submitted that pleadings cannot constitute or replace evidence and a Defendant who does not give evidence in support of his pleadings is deemed to have abandoned same and that where a party fails to give evidence in support of his pleadings or in challenge of the plaintiff's, he is deemed to have accepted the facts adduced by the plaintiff notwithstanding the general traverse. He referred to FEDERAL CAPITAL DEVELOPMENT AUTHORITY V. ALHAJI MUSA NAIBI  5 SC (Pt. II) 79, NASL & ANOR Vs. UBA & ANOR (2008) 8 SCM 189, FRANCIS OSAWE ESEIGBE V. FRIDAY AGHOLOR & ANOR (1993) 12 SCNJ 82, THE ADMINISTRATOR/EXECUTORS OF THE ESTATE OF GENERAL SANNI ABACHA Vs. SAMUEL DAVID EKE-SPIFF  2-3 SC (Pt. II) 93 and ALHAJI USMAN BUA Vs. BASHIRU DAUDA  13 NWLR (Pt. 838) 657 at 672, 6 SC (Pt. 11) at 1203. Learned counsel further relied on U.O.C. B.N LTD Vs. OKONKWO  5 NWLR (Pt. 1134) 401 at 404 and ANPP Vs. INEC  13 NWLR (Pt. 1212] 549 at 561 and urged this Court to hold that the unchallenged evidence of the Respondents were substantial and cogent enough to prove the averments in the statement of claim.
Learned counsel contended that there was no evidence that the Accountant's report was arrived at through a flawed process as submitted by the Appellant in its brief, and that there is no law that prescribes that a reports by accountants on overcharging of interest must be duly stamped for it to be admissible contrary to the submissions of the Appellant in Paragraph 4.3.1 at page 14 of the Appellants brief of argument. Learned counsel further contended that the Appellant's reliance on M.H. (NIG) LTD & ANOR Vs. OKEFUNA  6 NWLR (Pt. 1244) 514 at 533 to submit that it is general practice that credit facility obtained from a commercial institution will come with interests chargeable on the facility lacks merit as there was no evidence led in the Court below of such established practice or custom. Learned counsel cited STANDARD TRUST BANK LTD Vs. INTERDRILL NIG LTD  All FWLR (Pt. 366) 756, to submit that a general custom or practice cannot override the express terms of the contract as agreed and contained in the facility letter which is a document that both parties signed. He further submitted that a contract is binding and enforceable and should be treated with sanctity, and that the Court would not make a contract for the parties by reading into a contract what was not intended by the parties. He referred to BABA Vs. NIGERIA CIVIL AVIATION TRADING CENTER  5 NWLR (Pt. 192) 338 and BALIOL NIGERIA LTD Vs. NAVCON NIGERIA LTD  16 NWLR (Pt. 1220) at 630.
Learned counsel submitted that the Appellant was in breach of contract by wrongfully importing a non-existent pricing term into the contract and by further over charging and wrongfully deducting money from the Respondent account. He referred to ZAKHEM CONSTRUCTION (NIG) LTD Vs. NNEJI  5 NWLR (Pt. 759) 55 and N.M.A. INC (2010) 4 NWLR (Pt. 1185) 813. Learned counsel submitted further that the basis for the award of interest by the Court below is that the Appellant kept the Respondents out of their money and had the use of it to itself for which it ought to compensate the Respondents accordingly. He referred to SKYMIT MOTORS LTD Vs. U.B.A. PLC  10 NWLR (Pt. 1309) 491; DIAMOND BANK LIMITED Vs. P.I.C. LTD  18 NWLR (Pt. 1172) 97 to submit that the Respondents proved their case and were therefore entitled to the award of interest on the Judgment sum at the rate of 21% from December 2007 till judgment, and 6% from the date of judgment until it is finally liquidated. Learned counsel urged this Court to find that the lower Court did not misdirect itself in awarding the sum of N433,891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, and Thirty Three Kobo) as money deducted from the Respondents' account and interest on the judgment sum at the rate of 21% from December 2007 till judgment and 6% from the date of judgment until it is finally liquidated, and that the appeal be dismissed.
In Reply, Learned counsel for the Appellant referred to GBADAMOSIV. DAIRO  3 NWLR (Pt. 1021) 282 at 306 - 307 Para. H - B to further submit that the Appellant did not fail to cross examine the Plaintiffs/Respondents' witness as submitted by the Respondents, but rather, the Appellant had no such opportunity to cross-examine the said witness or to lead evidence due to unjust refusal of the Court below to reopen the case of the Appellant which amounts to injustice and complete lack of fair hearing. He submitted that it was the Counsel on record for the Appellant who failed to attend Court. Learned counsel urged this Court to discountenance the argument and cases cited in the Respondent's brief as they are not relevant to this case and an attempt to excuse, explain, and justify the miscarriage of justice at the lower Court in this case. He cited AUDU V. FRN 5 NWLR (Pt. 1348) 397 at 410 - 411,to state that even where an allegation of delay of justice is sustained, it cannot be equated to an outright denial of justice, and/or deliberate miscarriage of justice. Again, learned Counsel urged this Court to hold that the proceedings and the Judgment of the lower Court in this suit is in breach of the rules of fair hearing and as such a nullity and same be accordingly struck out. He further urged this Court to allow the appeal, set aside the judgment of the lower Court and all the orders made pursuant to the said judgment, and dismiss the case of the Respondents, or alternatively make an order remitting this case back to the Federal High Court, Lagos Division for full trial on the merits before another judge.
The instant issue borders principally on the question as to whether, notwithstanding the fact that the Respondents failed to lead evidence or even cross-examine the Respondent's witness, the Plaintiffs/Respondents prove their case before the lower to warrant the entry of judgment by the lower court.
Before proceeding further, it is instructive to note that in the instant case, the Appellant indeed filed its statement of defense in response to the Respondents' statement of claim. Therefore, it will not be correct in my view to hold that the suit was totally undefended. I believe that there is a dichotomy in instances where the suit as instituted by a Plaintiff will be deemed undefended and in other instances, as in the instant case, where the defendant, though entered appearance and properly filed his statement of claim but failed to take advantage of the ample opportunity provided by the court for him to either cross-examine the witness(s) called by the Plaintiff or ipso facto, lead evidence in rebuttal to the evidence led by the Plaintiff by calling his own witness and also tendering exhibits in support of his defense. In this latter category, where the defendant filed a statement of defence, the burden rests first on the Plaintiffs, which are the Respondents herein, to establish before the lower court that they are entitled to the claim(s) or relief(s) sought as per the statement of claim. It is settled principle of law in civil proceedings that a Plaintiff must succeed on the strength of his own case and not on the weakness of the defense. See: AKPORUE & ANOR. Vs. OKEI & 2 ORS.  12 S.C, NKADO Vs. OBIANO  5 NWLR (Pt.503) 31AKANDE Vs. ADISA &ANOR.  LPELR-7807 (SC) 59.
Now, can it be said that the learned trial judge properly evaluated the evidence before him before reaching the conclusion that the Respondents are entitled to judgment as per their Statement of Claim. I must say that it is the function of a trial judge to evaluate evidence placed before him. In MBANEFO Vs. MOLOKWU & ORS 2008 LPELR - 3696 (CA), My Lord and Learned Brother TSAMIYA, JCA said as follows:
The function of a trial judge in the assessment and evaluation of evidence involves two functions. Firstly, the matter of assessment in order to determine material evidence to be placed on the imaginary scale and secondly the evaluation of the evidence in order to determine in which side the scale tilts. The duty of appraising evidence given at a trial is pre-eminently that of the court of trial that saw and heard the witnesses and it is also the right of the Court to ascribe values to such evidence...."
The above decision of my learned brother remains the law and it is beyond dispute that this court shall not interfere with the findings of fact by the trial court where it is supported by evidence led before the court. Thus, this court will only disturb such findings of fact where it is perverse and/or is not based on the evidence generated at the trial by parties.
In the instant appeal, and having regard to the resolution of issues one in favor of the Respondents, it is obvious that the Respondents' pleadings as per their Statement of Claim were accompanied by evidence led thereon vide an Amended Written Statement on Oath dated 22/02/2010 and An Additional Written Statement on Oath dated 25/09/2009.
Section 133 of the Evidence Act, 2011 states:
"(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, having regard to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to prove is established, the burden lies on the other party against whom judgment would be given if no more evidence is adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting presumptions.
Section 134 reads:
"The burden of proof shall be discharged on the balance of probabilities in all civil proceeding."
While it remains undisputed that the standard of proof required of the Respondents in the instant case, is that on the balance of probabilities, it is also obvious from the unambiguous provisions of Section 133(2) of the Act that the burden of proof shifts from and to each of the respective parties in establishing their claim and/or defense before the court. As earlier noted, the Plaintiff led evidence before the lower court, vide, two written statements on oath. At paragraph 9 of the Amended Statement on Oath, the Plaintiff's sole witness, Mr. Daniel Isikhuemen, the Assistant Manager, Administration and Operation (Lagos Liaison Office) of the 1st Respondent deposed as follows:
"10. The Plaintiffs accounts listed in paragraph 8 above were over charged and deducted at various times by the Defendant
11. The Plaintiffs complained and made several representations regarding the irregular deductions on their accounts to the Defendant vide their letters of IS December2006and 18 January 2008 both of which are now shown to me and a copy of each attached hereto as Annexures 7 and 8 respectively.
12. The 4th Plaintiff gave specific bidding rate "to drawdown" for the facilities to the Defendant which the Defendant flagrantly disregarded without notifying the 4* Plaintiff. The Defendant admitted this fact in its letter 15th February 2007 which is now shown to me and a copy attached hereto as Annexure 9.
14. Flowing from paragraph 12 and 13 above, the 1st and 2nd Plaintiffs are not responsible for any act done or bidding made by the Defendant in the absence of clear instructions or agreement to that effect.
15. The Defendant never resolved or reconciled the differences in the accounts and also failed to refund the excess interest of 2% admitted by it when it charged 19% instead of17% interest rate agreed.
16. The Defendant breached its contract with the Plaintiffs by over-charging their account, making improper deductions and importing certain pricing terms that were not part of the contract at any time.
17. When the Plaintiffs realized that the Defendant was unwilling to calculate and refund the sum deducted they engaged the services of their accountant who reviewed and analyzed the transactions, calculated the figures and arrived at a total sum of 4423,530,085.21 (Twenty Three Million, Five Hundred and Thirty Thousand, Eighty Five Naira, Twenty One Kobo) as the amount over charged and improperly deducted. A summary of the overcharges from January 2005 to December 2007 is attached hereto as marked as Annexure 22.
18. The Plaintiffs requested that the over charged amount stated in paragraph 17 above which covers the period between January 2005 and December 2006 be refunded to them. The 1st Plaintiffs letter of January 2008 together with correct computation of charges ("scheduled") sent to the Defendant has already been shown to me and attached hereto as Annexure 8 in paragraph 12 above.
19. The Plaintiffs thereafter reviewed and analyzed the transactions for the period covering January to December 2007 and found that a sum of 443,368,201.83 (Three Million, Three Hundred and Sixty Eight Thousand, Two Hundred and One Naira Eighty three Kobo) was over charged. The Plaintiffs requested that the said sum be refunded to it vide its letter of 4 March 2008 together with its attached schedule which is now to me and a copy attached hereto as Annexure 23.
20. The Defendant shirked away from the main issue raised in all the Plaintiffs letters and admitted to refund just a total sum of 442,089,925.27 (Two Million Eighty Nine Thousand, Nine Hundred and Twenty Five Naira, Twenty Seven Kobo) which is significantly at variance with the correct over charged sum while purporting to have addressed the issues raised by the Plaintiff's letters. The Defendants letter of 20 May 2008 is now shown to me and a copy attached hereto as Annexure 24.
21. The Defendants claim about their adopting 360 days in the calculation of interest is baseless, unfounded and an afterthought to avoid liability as it actually used the 365 day Count Convention. The correct calculation schedule revealing this is already attached hereto Annexure 22.
22. The Bank's calculation of penal interests charged when the Plaintiffs' accounts exceeded the approved limit were exaggerated. The correct calculation schedule revealing this is now shown to me and a copy of the same attached hereto as Annexure 25.
23. The Defendant imported a non-existing pricing term into the facility letter of 21 February 2007 (Annexure 7) and which had no pricing terms on the basis of which the Defendant wrongfully deducted a total sum of 4410,361,257.12 (Ten Million, Three Hundred and Sixty One Thousand, Two Hundred and Fifty Seven Naira, Twelve Kobo). The conclusion schedule establishing this deducted amount is now shown to me and a copy of same attached hereto Annexure 26.
24. The overcharges and improper deductions to the Plaintiffs' account currently amount to the sum of N33,891,342.33 (Thirty Three Million Eight Hundred and Ninety One Thousand, Nine Hundred and Forty Two Naira, Thirty Three Kobo). The schedule showing a clear calculation of these improper charges and deductions is already attached hereto as Annexure 22 in paragraph 17 above.
25. The Plaintiffs have made every effort to recover the sum in paragraph 24 above peacefully and amicably but never got the co-operation of the Defendants.
28. The Defendant in its letter of 16 February 2009 denied most of our claims. The said letter of 16 February is now shown to me and a copy attached hereto as Annexure 28."
The above evidence of the Respondents' sole witness was neither contradicted nor challenged by the Appellant. The implication therefore is that the Appellant is deemed to have admitted the statement of facts stated therein by the witness and this therefore requires no further proof by the Respondents. Nonetheless, the question remains whether the Respondents were indeed entitled to judgment as per the evidence before the court?
The Respondents through their witness stated that there were overcharges and improper deductions in the Respondents' account which amount to the sum of M33,891,342.33 (Thirty Three Million Eight Hundred and Ninety One Thousand, Nine Hundred and Forty Two Naira, Thirty Three Kobo), the amount being claimed by them in the instant suit. See paragraph 24 of the Witness Statement on Oath reproduced above. Respondents tendered several exhibits, which were admitted by the lower court, but of great relevance here is Exhibit P3A26 and P3A27, which contains the computation of the overcharges and improper deduction done by the Respondents' Accountant.
Now, Exhibit P326 at page 857 of the record shows the summary of interest charges (STWC interest rate) which the Respondents contends was not mentioned in the offer letter prepared by the Appellant and executed by both parties and the sum therein totalled N10,361,257.12 for the period 01/01/2007 to 31/12/2007, while Exhibit P327 is summary of overcharges for the period from 01/01/2005 to 31/12/2007 which the Respondents calculated to be N23,530,085.21, bringing outstanding sum of N33,891,342.33. There is no contrary evidence by the Appellant upon which the trial court will determine whether the sum alleged by the Respondents is not a true reflection of the sum overcharged. A fortiori, it is not the contention of the Appellant that the total sum arrived at by the Respondents is not as per the terms of the contract entered into by both parties; indeed the contention of the Appellant's counsel is that the sum so arrived at was based on a faulty computation using the wrong parameters contrary to the established trade practices in the banking system that commercial banks advance credit to business entities for profit, interest and charges do not come free of charge. There is no evidence before the lower court upon which the argument is predicated. I am unable to agree with the Appellant's counsel that the outstanding sum established by the Respondents was based on faulty computation without any evidence to the contrary. How the Respondents arrived at the total sum is clearly evident on the face of Exhibits P326 and P327.
Meanwhile, Appellant's counsel argued that Exhibit P3A26 is documentary hearsay. It is settled law that only the maker of documentary evidence can tender it. The essence no doubt is to give the other side the opportunity to cross-examine the maker of the document as to the contents of the document being tendered. However, I am conscious of the settled position of the law that "it is relevance that determines the admissibility of a document. The resounding words of my lord NIKI TOBI, JSC in OMEGA BANK NIG. PLC Vs. OBC LTD  8 NWLR (Pt. 928) 541 at 582 to 583, is apt in this regard. The Learned Jurist said as follows and I quote:
Let me take the issue of non-maker of the document tendering it It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (1) The maker is dead (2) The maker can only be procured by involving the party in so much expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a court of law will not attach any probative value to the document and a document that a court that the court does not attach any probative value is as good as the mere paper on which it is made. After all probative value is the root of admissibility of evidence. I should not be understood as saying that documentary evidence can be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker... After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document are two different things..."
In the light of the foregoing, while I agree that the trial court rightly admitted Exhibit P3A26 and P3A27 having regard to the fact that it is relevant to the suit of the Respondents, the question remains whether the Exhibits indeed are deserving of ascription of any probative value. In the instant case, the Respondents' sole witness who was not the maker of the report tendered Exhibits P3A26 and P3A27. This fact was conceded by the Respondents' counsel at paragraph 4.43 (b) of his brief of argument where he noted that the exhibits, particularly Exhibit P3A26 were tendered by an employee of the 1st Respondent. No reason was given as to why the Accountant who prepared the report was not called as a witness, this lapse on the part of the Respondents has created lacuna in the value to be ascribed to the document. As NIKITOBI, JSC held in OMEGA BANK (supra), where as in the instant case, the maker of a document is not dead and it is not shown that so much expense would be incurred in calling him as a witness by the Plaintiffs, no probative value will be attached to the document so tendered and same is not worth more than a mere paper as clearly set out in the decision of the Supreme Court cited.
The claim of the Respondent is no doubt erected on the contents of Exhibit P3A27, which obviously has no probative value, and where a claim is erected on shaky and porous pedestal, such claim is bound to collapse. Exhibit P3A27 is not a public document that can be admitted through any witness upon certification. The document herein is a private document, and therefore ought to be tendered by the maker. The Respondents' claim stands and falls on Exhibit P3A27. In reaching his conclusion that the Respondents were entitled to judgment, the learned trial judge at Page 1134, Vol. Ill of the records of appeal said as follows:
"The court read the entire process and deliberately reproduced the address of learned counsel verbatim because the defendant failed, refused and/or neglected to defend this suit. Therefore the plaintiffs evidence remains unchallenged. This is a breach of contract for which this Court believes damages will flow as the defendant owes the plaintiff a duty under the contract.
This court must state that all the submission that is not backed by defence goes to no issue. So also a pleading that is not supported by evidence is deemed abandoned. In sum this Court accepts the unchallenged and uncontroverted evidence of the plaintiff that is capable of believe (sic) and hereby enter judgment for the plaintiff against the defendant as per the Plaintiffs claim in paragraph 28 of the Amended Statement of Claim before the Court to wit..."
It is obvious from the above-reproduced judgment of the lower Court that the learned trial Judge did not conduct proper assessment of evidence led before him by the plaintiffs. This is against the background that, even where a Defendant fails to take ample opportunity offered to him by the court to lead evidence or contradict the evidence led by the Plaintiffs as in the instant appeal, the plaintiffs, that is, the Respondents in the instant appeal, have the duty to establish legitimate claim to the reliefs sought. With all due respect to the Learned trial Judge, there is apparent indication of misdirection on the part of the lower Court, when the Court failed to evaluate the evidence led by the plaintiffs/Respondents before reaching a decision. In EKONG Vs. OTOP & Ors.  11 NWLR (Pt. 1419) 549 at 573, OKORO JSC, said as follows and I quote.
"It is trite that documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial court. Where the trial court fails to examine documents tendered before it, an appellate court is in a good position to evaluate such exhibits...."
Having examined Exhibit P3A27 and found that the maker was not called as a witness, no probative value can be ascribed to the exhibit, I am of the view that the lower Court erred when it held that the Respondents were entitled to judgment. Issues two and three are resolved in favor of the Appellant. Notwithstanding the resolution of issue one in favour of the Respondent, this appeal nonetheless succeeds and it is accordingly allowed. The Judgment of Buba J., of the Federal High Court, delivered on 28th June 2013 is hereby set-aside.
Parties in this appeal shall bear their respective costs.
SAMUEL CHUKWUDUMEBI OSEJI I had the privilege of reading the draft copy of the judgment just delivered by my learned brother TIJJANI ABUBAKAR JCA.
I agree with his reasoning and conclusion that the appeal be allowed in part.
I also will and hereby allow the appeal in part. I abide by the consequential orders made in the lead judgment including order as to costs.
Abimbola Osarugue Obaseki-Adeiumo, JCA My learned brother, TIJJANI ABUBAKAR, JCA obliged me with an advance copy of the judgment which he just delivered. I agree with his reasoning and conclusion reached therein. In the same terms as the leading judgment, I find the appeal of the Appellant to be meritorious and same is hereby allowed. I abide by the order as to cost made therein.
Ikenna Onwusika with Edward Porbeni for the Appellant
J. 0. Omisade with A. Abbass, D. Dibi for the Respondent