G.T.B v ABIODUN

G.T.B v ABIODUN


IN THE COURT OF APPEAL
IN THE ADO-EKITI JUDICIAL DIVISION
HOLDEN AT ADO-EKITI

ON THURSDAY, 8TH JUNE, 2017


Appeal No: CA/EK/59/20 5

CITATION:

Before Their Lordships:

AHMAD OLAREWAJU BELGORE, J.C.A

FATIMA OMORO AKINBAMI, J.C.A

PAUL OBI ELECHI, J.C.A

BETWEEN

GUARANTY TRUST BANK (GTB) PLC
(APPELLANT)
AND
BARRISTER AJIBOYE AYODEJI ABIODUN
(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Interference with Award of Damages – Principles guiding an Appellate court when interfering with an award of damages

“The principles upon which an Appellate Court acts in an appeal against the quantum of damages are well settled and were stated thus by Greer, LJ in Flint v. Lovell (1935) 1 K.B 354 at 360

“In order to justify reversing the trial Judge on the question of amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of la or that the amount awarded was so extremely high or so very small as to make, in the judgment of this Court an entirely erroneous estimate of the damage to which the plaintiff is entitled”.

Lord Greer L.J. in the English case of Flint v. Lovell (1935) 1 K.B. 354 aptly observed thus:

“I will be disinclined to reverse the findings of a trial Judge as to the amount of damages merely because they think that it they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages, it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled”.

Where the learned trial Judge acted on wrong principles of law in quantifying damages, the Court of Appeal must intervene to make the proper assessment for damages that ought to have been awarded considering the peculiar facts and circumstances of the case. In Aremu Hassan v. Benjamia Tade (2001) 49 WRDN 130; (2011) LPELR 4235 my learned brother, Denton-West aptly observed thus:

“On the quantum of damages awarded, this Court will not generally alter an award of damages unless it is established that the Judge proceeded on a wrong principle of law or that his award was clearly an erroneous estimate in that the award was manifestly too large or too simple.”

See: Bhojosons Plc. V. Daniel Kallio (2006) 19 WRN 170; (2006) All FWLR (Pt. 312) 2038 – 2064 and Gari v. Seirafina (Nig.) Ltd. (2008) 2 NWLR (PT. 1070) 1 AT 20 per Mukhtar, JCA [p. 148 – 149] lines. 35 – 40. Per ELECHI, J.C.A. (para 97 – 98) read in context

B. COURT
2. Appellate Court – Fundamental duty of an Appellate court

“It is usual that in the course of writing a judgment, a judge is bound to air his views and make comments here and there and may also give reason for certain findings. That may well be so. However, the concern of this Appellate Court is to determine whether the decision of the trial Court is right and not whether the reasons for the decision are correct. See Nkado v Obiano (1997) 5 NWLR (Pt. 503) 31, Nwankwo V. E.D.C.S.U.A. (2007) 5 NWLR (Pt. 1027) 377.” Per ELECHI, J.C.A. (para 88) read in context

3. Raising Issues Suo Motu – Obligation of the Court to call parties to address it on issues raised suo motu and the effect of failure to do so

“…the trial judge raised the issue suo motu without offering the parties the opportunity to address her on the issue. Having raised such critical issue even at the eleventh hour of the case, the learned trial judge ought to have given the Appellant the right to be heard on that issue. Having not done so, there is no doubt that it has not fallen foul of the principles of fair hearing and I so hold. Such a breach of fair hearing is capable of setting aside its decision. See Chief S.O. Adebayo & Ors v. People Democratic Party & Ors (2013) LPELR-20342 (SC).” Per ELECHI, J.C.A. (para 89) read in context

C. DAMAGES
4. Award Of Damages – Principles guiding the Courts in the award of general damages

“General damages is often presumed and awarded. However, a plaintiff can only be obliged with the discretionary powers of the trial Court if from the evidence adduced by him, the relief is actually proved. In other words, without the proof of the relief, the Court is beret of the discretionary power to presume that general damages accrued and award same.” Per ELECHI, J.C.A. (para 96) read in context

5. Nominal Damages – Principles that guide the Court in awarding nominal damages

“Where there is no other evidence to help in the assessment of damages, the Respondent will be entitled to nominal damages. See: Chief Anthony Edosa v. First Bank of Nigeria Plc, (2011) 35 WRN 107; (2011) LPELR-878 where my learned brother, Shoremi, JCA observed thus:

“Quantum of damages like any other issue in our civil procedure is a matter of evidence; where one gives no evidence that can help in the assessment of damages he is normally entitled to nominal damages. See: Baker Marine v. Chevron (2007) 2 WRN 1; (2006) 6 SCNJ 124 (pages 139 – 140).” Per ELECHI, J.C.A. (para 99) read in context

6. Quantum of Damages – What the Court must consider in measuring the award of damages due to a Plaintiff where he has suffered loss

“Quantum of damages must be assessed according to the standard of a reasonable person’s opinion. It is therefore necessary for the learned trial Judge to make proper assessment of the damages awarded according to the peculiar facts and circumstances of the case before him. My learned brother, Okoro, JCA (as he then was) aptly so observed in case of: Akinboye v. Adeko (2011) LPELR-4551 as follows:

“The Supreme Court in Yalaju-Amayife v. A.R.E.C. Ltd. stated that the measure of general damages in term of money is for the Judge to decide. It is always necessary for the Judge to make his own assessment of the quantum of such damage”.

My learned brother, Aji, JCA has similarly observed in the case of Chief Isaac Olokunlade & Ors. v. Chief Peter Adebisi Ademiloyo (2011) 35 WRN 41; (2011) LPELR-3943 as follows:

“Therefore, in awarding damages, a trial Court must take its own assessment of the quantum of such damages in the light of evidence adduced and not base its award on speculative claim and scanty facts”. See: Abiara v. Reg. T.M.C.N. (2007) 11 NWLR (Pt. 1045) 280, Gari v. Seirafina (Nig.) Ltd. (2008) 2 NWRL (Pt. 1070).” Per ELECHI, J.C.A. (para 100) read in context

D. EVIDENCE
7. Written Statement on Oath – The difference between an affidavit and a written statement on oath

“It may be necessary to distinguish an affidavit and a written statement.

An affidavit is that upon which motions are largely decided while written statement on oath upon which facts in pleadings are predicated. A written statement on oath is the evidence on which a party relies in Court to establish his case or his answers to opponents’ case as required by Order 32 Rule 2(1) of 3(1) of the Rule of the lower Court. It is equally unlike pleading which are written statements (and not evidence) generally of facts relied upon by a party in proof of his case. See: B.V. Magnusson V. Koiki & Ors (1993) LPELR – 181-1818 (SC). Order 3 Rule 2(1) (c) of the Rules of the lower Court prescribes that a written statement must be on oath and not an affidavit. See: Leo Melos Pharmaceutical Industries Ltd & Anor. V. Union Homes Savings and Loans Ltd (2010) (SCc) LPELR – 4431 (CA).” Per ELECHI, J.C.A. (para 61 – 63) read in context

8. Administration of Oaths – Conditions that must be met before an oath can be considered legitimate

“The above depositions in the alleged written statement are not in full compliance with the provisions of the Oaths Act as to qualify as written statement on oath prescribed by Order 3 Rule 2(1) (c) of the Rules of the lower Court. The said Order 3 Rule 2(1) (c) of the Rules of Ekiti State High Court Rules mandatorily directs a Claimant to file “written Statement on oath of the witnesses” among other documents along with his originating process. The word ‘SHALL’ as embodied in the said Order has been interpreted in many judicial authentic to mean ‘compulsion.’ See: Onochie V. Odogwu (2006)6 NWLR (pt 975) 65 (SC).

It therefore follows that a valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria 2004. The form prescribed by Section 13 is in the 1st Schedule to the Act which provide as follows:

“I do solemnly and sincerely declare…”

Any Written statement, therefore, which does not bear the First Schedule to Section 13 of the Oaths Act, cannot be said to be a Written Statement on Oath. See: Obed Orlando Ibe & Anor. v. Nkiru Ugochukwu & 41 Ors. (2010) All NWLR (Pt. 504) 1590 @ 1592/1593.

Section 13 of the Oaths Act provide as follows:

“It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorised by the Act to administer oaths, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule which is as follows, I (name supplied) do solemnly and sincerely declare, that I make this solemn declaration contentiously believing same (or the contents) to be true”.

In putting the legitimacy of oath in any Written Statement to rest, the Enugu Division of the Court of Appeal said in Chikwelu Chris Obumneke v. Okeke Sylvester & Anor. (2010) All FWLR (Pt. 605) 1945 @ 1947 as follows:

“Thus, every oath to be legitimate must comply with the provisions of the Oaths Act, Cap. 333, Laws of the Federation and the 1st Schedule thereto. Where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it is not an oath or Affidavit properly so called.” Per ELECHI, J.C.A. (Para 65) read in context

9. Uncontroverted Evidence – The effect of uncontroverted evidence

“The above averments were not specifically denied in the Respondent’s reply to the statement of defence even though this is the main crux of the case at the lower Court. What it all means is that they are all deemed admitted by the Respondent. See: Unibiz Nigeria Limited v. Commercial Bank (Credit Lyonnais (Nig) Ltd (2005) 14 NWLR (pt 944) 47 (SC), Abiodun Adelaja & Ors v. Yesufu Alade & Anor (1999) 6 NWLR (pt 608) 544 (SC); Alhaji Sani Abubakar Danladi v. Barr Nasiru Audu Dangiri & Ors (2014) LPELR – 24020 (SC), Okonkwo v. C.C.B. (Nig) Ltd (2003) 8 NWLR (pt 822) 347 at 418.” Per ELECHI, J.C.A. (para 78) read in context

10. Documentary Evidence – Duty of a Court to compare signatures where there is a dispute as to signature

“It is settled that where there is a dispute as to signature as in this case, the duty of the Court is to compare same, there is statutory provision for this in Section 101 of the Evidence Act Cap 2011. See also: Adenle v. Olude (2002) 18 NWLR (pt 799) 413 at 430.” Per ELECHI, J.C.A. (para 82) read in context

11. Documentary Evidence – Position of the law on dissimilarity in signatures

“It is also settled that mere dissimilarity of the signatures is not conclusive evidence. It is not proof that they were not made by the same person. See also: Daggash v. Bulama (2004) ALL FWLR (pt 212) 1666 at 1712.” Per ELECHI, J.C.A. (para 83) read in context

12. Evaluation of Evidence – Whether the Trial Court and the Appellate Court have equal rights to evaluate documentary evidence

“…this Court is at liberty to do so. The reason is that evaluation of a document is not only within the exclusive preserve of the trial Court. Both the trial judge and the Appellant judge have equal right to evaluate a documentary evidence. This is because unlike oral evidence which an Appellate judge does not see he sees like the trial judge, the document as Exhibit.

Therefore, where the finding of a trial judge on documentary evidence is perverse, an Appellate judge will easily see the perversion and employ his Appellate powers to correct it. See: Iwuoha v. Nigerian Postal Services Ltd & Anor (2003) 8 NWLR (pt 822) 308 (Sc).” Per ELECHI, J.C.A. (para 85) read in context

13. Address of Counsel – Whether address of counsel can be substituted for evidence

“It is settled law that address of counsel however brilliant cannot take the place of evidence particularly where there is no evidence, as in the instant case in support of learned counsel submission. See Union Bank of Nigeria PLC & Anor v. Ayodare & Sons (2007) LPELR-3391 (SC) (2007) 13 NWLR (Pt 1052) 567.” Per ELECHI, J.C.A. (para 86) read in context

14. Calling of Witnesses – Whether the law imposes an obligation on any party to call a particular number of witnesses

“It is trite that in a civil action, a party is not obliged to call a particular witness if he can establish his action otherwise. See:Onwujuba v. Obienu (1991) 4 NWLR (pt 183) 16 (Sc).

Even in criminal case as well, the law does not impose any obligation on the part of the prosecution as to the number of witnesses to call in order to prove his case. See: Babuga v. State (1996) LPELR – 701 (Sc) (1996) 7 NWLR (pt 460) 279; Adaje v. State (1979) LPELR-70 (Sc), Archibong v. State (2006) 14 NWLR (pt 1000) 349.” Per ELECHI, J.C.A. (para 92) read in context

D.LEGISLATION
15. Oaths Act – Effect of non-compliance with the Oaths Act

“As stated earlier in the course of this judgment, any written statement which does not bear the 1st schedule to Section 13 of the Oath Act cannot be said to be a written statement on oath. It is this vital aspect of the oath that is missing in the written statement of the Respondent’s sole witness in the present appeal. Noncompliance with the provisions of the Oaths Act is a breach of the Oath Act. The consequence is that the entire statement of the Respondent sole witness is left bare. The Rules of Court are not made for fun, they are made to be obeyed. See: Hard v. Hact (1990) 1 NWLR (pt 126) 276, Tom Ikimi v. Godwin Omamnli (1995) 3 NWLR (pt 383), Ibrahim v. Col Cletus Emein & Ors (1996) 2 NWLR (pt 430) 322, Tehat A.O. Sule v. Nigeria Cocoa Board (1985) All NLR 257, Odu v. Jolaoso (2002) 37 WRN 115.” Per ELECHI, J.C.A. (para 66) read in context


LEAD JUDGEMENT DELIVERED BY ELECHI, J.C.A.


1. This is an appeal against the judgment of the High Court of Justice sitting at Ado Ekiti delivered on the 4th November 2015 and granted all the legs of the Respondent’s claim.

2. Dissatisfied with the said judgment, the Appellant filed his notice of appeal at the registry of the lower Court, on the 6th November 2015. Later, the Appellant filed another Notice of Appeal in the registry of the lower Court within time on the 20th January 2016. However, on the 9th February 2016, the Appellant withdrew the notice of Appeal filed on the 6th November, 2015 and eventually struck-out.

3. The Appellant as well amended its notice of Appeal filed on the 20th January 2016 and deemed same as properly filed on the 9th February, 2016 in the determination of this appeal, the Appellant postulated the following issues for determination:-

(1) Whether the lower Court rightly sustained the competence of the written statement on oath of the Respondents sole witness on the ground of irregularity and/or technicality. (Ground one of the amended Notice of Appeal.)

(2) Whether by the entirety of the evidence (oral and documentary) led before the lower Court, the trial Judge was right to have granted the claims of the Respondent.(Grounds 2, 3, 4 & 5 of the Amended Notice of Appeal.)

(3) Whether the award of N2 Million Naira as general damages is justified in the circumstance of this case.

4. To argue Issue No. 1 above, learned Appellant’s Counsel restated that in compliance with the new Ekiti State High Court (Civil Procedure) Rules 2011, Order 3 Rule 2 (1) (c)of the said Rules and the order of the lower ourt made on the 2nd February 2012, the Respondent front loaded his processes on the 5th June 2012. At page 46 of the records, Respondent’s sole witness deposed thus:

“That I swear to this affidavit in truth and good faith”

5. In response to the processes front loaded by the Appellant, the Respondents who filed a reply prior to the commencement of the new Rules of Ekiti State (Civil Procedure) Rules on the 11th September, 2009 filed yet another “Reply to Statement of defence” on the 8th October 2013. Also in support of the said reply, he also filed a “Written Statement on Oath of Claimant’s witness in support of the Reply to the Statement on Oath”. However, in a considered Ruling delivered by the lower Court upon the Appellant’s challenge to the competence of the said processes, the lower Court struck-out the reply to the statement of defence filed on the 8th October 2013 but sustained the written statement on oath of Claimants witness in support of the Reply to the Statement on oath.

6. By paragraph 30 of the written statement on oath of Claimant’s witness in support of the Reply to statement on oath, the witness deposed as follows:

“That I swear to this Affidavit in truth and good faith.”

7. In considering the above, the trial Court treated same as an irregularity and/or technicality which did not affect the substance of the case because according to him, the same witness was still subjected to another oath taking in the witness box.

8. In respect of the above, learned Appellant’s Counsel submitted that the above Conclusion of the lower Court is not founded in law and referred the Court to Order 3 Rule 2 (1) (c ) of the Rules of the lower Court which prescribe “a written statement” and not “an affidavit”. He submitted that an affidavit upon which motions are largely decided is not the same thing as written statement on oath upon which facts in pleadings are predicated. Written statement on oath he maintained is the evidence on which a party relies in Court to establish his case or his answer to opponent’s case as required by Order 32 Rule 2(1) and 3 (1) of the Rules of the lower Court. Also it is equally unlike pleadings which are written statements (not evidence) generally of facts relied upon by a party in proof of his case. See B.V. Magnusson v Koiki & Ors (1993) LPELR 1818 SC.

9. Learned Appellant Counsel submitted that what Order 3 Rule 2(1) (c) of the Rules of the lower Court prescribes a written statement which must be on oath and not an affidavit. See Leo Melos Pharmaceutical Industries Ltd & Anor v Union Homes Savings & Loans Ltd (2010) LPELR-4431

10. Learned Appellant referred the Court to paragraphs 30 and 35 of the written statements filed by the Respondent and submitted that the trial Court predicated its judgment on an affidavit and not a written statement on oath as enjoined by the Rules of the lower Court. According to him, any valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria 2004 which is “I do solemnly and sincerely declare…” See Obed Olando Ibe 7 Anor v Nkiru Ugochukwu & Ors (2010) ALL NWLR (Pt 504) 1590 at 1592/1593, Chikwelu Chris Obummeke v Okeke Sylvester & Anor (2010) ALL FWLR (Pt 506) 1945 at 1947.

11. Even with the signature and stamp of the commissioner for oaths, learned Counsel submitted cannot remedy the defect. Also submitted is that contrary to the Conclusion of the lower Court that the failure of the statements to comply with the form set out in the 1st schedule to the Oaths Act in taking an oath does not render the document defective in form but in substance. It is not a question of technicality and/or irregularity, contrary to the lower Court, but substantive issue of law. See Chikwelu Chris Obumnake v Okeke Sylvester & Anor (2010) ALL FWLR (Pt 506) 1945, Osula v U.B.A. PLC (2003) 5 NWLR (Pt 813) 376.

12. On the administration of oath in the Open Court, learned Appellant still submitted that it will never cure any defect in his written statement oath. This is so because the administration of oath in accordance with Section 205 and not Section 180 of the Evidence Act 2011 quoted by the trial Court is required in cases of oral testimony. The said Section could not have provided the necessary cure to the incompetent written statement as the operative word in the said Section is “all oral evidence” as distinct from “evidence by adoption of written statement on oath”

13. By the new Rules of Court, evidence is given not by testimony but by the adoption of written statements already filed before the Court. It is therefore highly imperative that the written statement must be on oath which gives the written statement its validity and any written statement without a valid oath will not satisfy the mandatory requirement of Order 3 Rule 2 of the Rules of the lower Court. See Bona Oraekwe & Anor v Obiora Chukwue 7 Ors (201 ) LPELR – 9128. Under the new Rules both in the High Court and even in Election Petition Tribunals, witnesses are no more required to lead oral evidence after adopting their written statements on oath. So the authority of Sylvester Chuma v Anthony Ezechi Nwoye & 15 Ors (2009) LPELR – 4997 relied by the trial Court does not apply to this matter on appeal. This is so because according to learned Counsel, there is nothing in paragraph 35 and 30 of the written statements on oath of the Respondents witness showing that they were sworn to God or a reverend person or thing or affirmation. As a result, he urged the Court to discountenance the said authority and resolve this Issue No. one in their favour by holding that the Respondent offered no testimony before the trial Court upon which the trial Judge gave her judgment.

14. ISSUE NO. 2
“Whether by the entirely of the evidence (oral and documentary) led before the lower Court, the trial judge was right to have granted the claims of the Respondent. (Grounds 2, 3, 4 and 5 of the Amended Notice of Appeal.)

15. To argue this issue, learned Appellant Counsel stated that in response to the front loaded processes filed by the Appellant, the Respondent filed another “Reply to Statement of defence” and written statement on oath of Claimant’s witness in support of the Reply to statement of defence” on the 8th October 2013 the lower Court on the 5th February 2014, struck out the “Reply to the statement of defence” filed on the 8th October 2013 but allowed the “written statement on oath of Claimant’s witness in support of the Reply to the statement of defence”

16. Having sustained “the written statement on oath of Claimants witness in support of the reply to statement of defence” which was essentially filed to adduce evidence in support of the reply to statement of defence struck-out on 5th February 2014, learned Counsel then submitted that the written statement contains evidence of facts not pleaded and should as such go to no issue. See Akeredolu & Ors v Akinremi & Ors (1989) LPELR-328 (SC), National Investment & Properties Co Ltd v Thompson Organization Ltd & Ors (1969) 1 ALL NLR 138.

17. To further argue this issue on their merits, learned Appellants posed the following questions/issue for better consideration of this issue.

(a) The determination of the exact amount applied by the Appellant to off-set the indebtedness of Double Capital Consult Limited as to warrant the grant of legs 23(a) & (b) of the Respondent’s claim

(b) The Resolution of Exhibit G (The Respondent’s spacimen signature) Exhibit H (Letter of set- off dated 13th March 2009) and Exhibit K individual Account opening form)

(c) Fraud `

18. In order to address the exact amount applied by the Appellant to set-off the indebtedness of Double Capital Consult Limited as to warrant the grant of legs 23 (a) of the Appellants claim, the Respondent in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 16 of the statement of claim at pages 13 to 16 averred that he made a fixed deposit investment of N7m on the 13th March 2009 for a three months subject to payment of the sum of N225, 246.58 as interest. It was the Respondents case that he terminated his investment with the Appellant vide letters dated 28th May 2009 and 16th June 2009 upon the application of N4 Million to set-off the indebtedness of Double Capital consult Limited. The Respondent not only denied the said company as well as any grant of facility to it. Also the Respondent also denied ever authorizing or mandating any withdrawal from his account. It is the Appellants case that the Respondent upwardly increased the balance in his savings accounts from N4, 595,987.53 by making an additional deposit of N2, 500.000.00 totaling N7m needed not only to serve as security for the facility to Double Capital but also for investment for a period of 90 days subject to the payment of N250, 273.97k as interest. It is the Appellants case that it applied the sum of N4Million out of the investment to off-set the indebtedness of double Capital as shown in paragraphs 3 to 31 of the written statement of oath filed on the 9th August 2012 at pages 63 to 66 of the record of Appeal.

19. Therefore, evidence before the trial Court shows that it is not in controversy that the sum of N4 Million Naira was applied for to off-set the indebtedness of Double Capital. On that premise, learned Appellant Counsel therefore submitted that there is no evidence before the trial Court to the effect that the Appellant tempered with the balance in the Respondent’s account after deducting the sum of N4 Million as shown in paragraph 25 of the statement of defence at page 21 of the records which was not denied in the Respondents reply to statement of defence, since they are not denied, they are deemed admitted by the adverse party. See Alhaji Sani Abubakar Danladi v Barr Nasiru Audu Dangiri & Ors (2014) LPELR – 24020 (SC), Okonkwo v C.C.B. Nig Ltd (2003) 8 NWLR (Pt 822) 347 AT 418

20. Learned Counsel for the Respondent therefore submitted that the trial Judge was in error to have declared as well as ordered the Appellant to refund the sum of N7 Million with interest when the evidence led before her disclosed the sum of N4 Million. In addition, he also submitted that the trial judge was also in error to have ordered the payment of interest on the said sum of money when there is uncontroverted evidence before the Court that the Appellant has been rolling over the investment of the Respondent at prevailing market rate and urges the Court to so hold.

21. On Exhibits G & H, Counsel submitted that the resolution of the signature on Exhibit H can conveniently carried out by the trial judge by comparing the signature of the said Exhibit with those in Exhibit G & K since documentary evidence is the best evidence. See Vincent U. Egbarevba v Dr Orobor Osagie (2009) LPELR-1044 (SC). The signatures on Exhibits G & H are the same and signed by the Respondent. As a result, learned Appellant Counsel contended that it beloved on the trial judge to have held that the letter of set-off (Exhibit H) was actually signed by the Respondent and therefore relevant and fundamental to the defence of the Appellant. He then urged the trial judge to hold that the said Exhibit was duly signed by the Respondent and resolve this issue in favour of the Appellant.

22. On the nexus between Double Capital Consult Limited and the Respondent, learned Respondent counsel submitted that the trial judge erred in his judgment that the erred in his judgment that the burden is on the Appellant to establish same.

23. On fraud as pleaded in paragraph 19(a) to (e) of the reply to the statement of defence, the Respondent pleaded same thereon and its particulars. The fraud thereto relates to the withdrawal of the sum of N4 Million from his account by an officer of Double Capital Consult Limited without authorization. According to Counsel, the learned trial judge rather than confine herself to the fraud pleaded and the evidence lead, held in her judgment /conclusions that have no root in the pleadings filed and exchanged by the parties or evidence led before the Court as well could be seen on page 343 of the record of Appeal indeed those conclusions of the trial judge were raised by the trial Court suo motu as it was never the case of the Respondent that the staff of the Appellant ever connived with the Chief Executive Officer of Double Consult Capital Limited to defraud him. It is therefore learned Appellant’s submission that a Court of law is not permitted to raise an issue suo motu and proceed to determine the case without calling on the parties or counsel representing them to address it on the said issue. On the other hand, where the Court fails to listen to the parties particularly the party to be affected by the decision on the issue so raised as in this case, learned counsel submitted that such a Court is said to have fallen bone of the principles of the rules of fair hearing and such a decision is liable to be set–aside. See Chief S.O. Adebayo & Ors v Peoples Democratic Party and Ors (2013) LPELR – 342 (SC). On the basis of the above, he then urged the Court to resolve this issue in favour of the Appellant.

24. Issue No 3

That is whether the award of N2million as general damages is justified in the circumstance of this case (ground 6 of the Amended Notice of Appeal)

25. Learned Appellant Counsel submitted that the award of N2million general damages to the Respondent was on the high side that even after granting the Respondent a refund of N7million including accrued interest as at 28th May 2009, and interest at prevailing rate as at 28th May 2009 to 4th November 2015, the Court still went ahead to grant N2million in favour of the Respondent. Even though the Appellate Courts do not necessarily interfere with the award of damages but may in certain occasions where such award of damages is ridiculously high that it must have been a wholly errenous estimate of the damage among other conditions. See Union Bank of Nigeria Ltd v Odusote Book Stores Ltd (1995) 9 NWLR (Pt 421) 558, Soleh Boneh Oversers Nig Ltd v Ayodele (1989) 1 NWLR (Pt 99) 549 at 563.

26. Learned Appellant Counsel stated that after awarding a ridiculous amount as general damages, and after ordering the Appellant to pay interest at prevailing rate on the N2million naira for six years, it was therefore unjust and unfair to direct the Appellant to pay another N2million damages. He then urged the Court to interfere in this matter and resolve this issue in favour of the Appellant and finally to allow the appeal and set aside the judgment of the lower Court, and dismiss the Respondent’s claim in its entirely.

27. On their part, the Respondent formulated three issues for determination:

(1) Whether the written statements on oath of the Respondents sole witness were not sworn in accordance with the relevant laws. (Ground one of the Amended Notice of Appeal.)

(2) Whether from the oral and documentary evidence placed before the Court, the learned trial judge was right to have granted the Respondent’s claims before the Court (Grounds 2, 3, 4 & 5 of the Amended Notice of Appeal.)

(3) Whether the award of N2 Million only of general damages by the learned trial judge was justified in the circumstance of this case.

28. In arguing issue No 1 which is whether the written on oath of the Respondent’s sole witness were not sworn in accordance with the relevant laws. (Ground one of the Notice of Appeal) In paragraphs 35 of the written statements on oath of the Respondent as his sole witness which was filed at the registry of the lower Court on 5th June, 2012 and paragraph 30 of the additional written statement on oath in support of the reply of Statement of Defence filed at the registry of the lower Court 8th October, 2013, Respondent as witness stated thus:

“That I swear to this Affidavit in truth and in good faith” and “That I swear to this affidavit in truth and in good faith.”

29. It is submitted to the learned counsel to the Appellant that the entire arguments in his issue 1 as they relate to the competence and validity of the written statement on oath filed at the Registry of this Honourable Court on 5th June, 2012 and the additional written statement on oath captioned “Written statement on oath of Respondent’s witness in support of the Reply to statement of Defence” filed on 8th October, 2913 are misconceived, misapplied and most certainly not the law. See in GE INT’L OPERATIONS LTD V Q-OIL & GAS SERVICES (2015) 1 NWLR (PT 1440) P.244 AT 270, see also ORAEKWE V CHUKWUKA (2010) LPELR P. 9128. MARAYA PLASTICS LTD V INLAND BANK (2002) 7 NWLR (PT 765) P.109. ISHAQ V INEC (2008) LPELR P. 4334. ONUJABE V IDRIS (2012) 2 NWLR (PT 1284) P. 285 at 308 Paras A. IJAODOLA V REGISTERED TRUSTEES C&S.C.M. (2006) 4 NWLR (Pt 969) p. 159 and UDUSEGBE V SPDC (NIG) LTD (2008) 9 NWLR (Pt 1093) P. 593.

30. It is further submitted that both written declarations and depositions are presumed to be regular, being judicial act. See Section 168 (1) of the Evidence Act, Cap 14, LFN, 2011. See S.P.D.C.N V AMADI (2010) 13 NWLR (Pt 1210) p.82 at 142 paras E-F.

31. It is further contended and submitted that the grouse of the learned counsel to the Appellant against both written declaration/depositions borders on the forms and not the substance.

32. In BAA V ADAMAWA EMIRATE COUNCIL (2014) 8 NWLR (Pt 1410) P. 539 at 562-563 Paras G-A, the Court held thus;

“It is well to remind counsel that the days of technicalities are long since gone and Courts have welcomed “substantial justice” with open arms, such that she is no longer a stranger to our hallowed temples of justice”.

33. It is further submitted that it is therefore right in law to refer to both written declarations/depositions as “Affidavit” Once sworn to before a Commissioner of oaths and adopted in the witness Box, it becomes an Affidavit Evidence.

34. The submissions and arguments of the learned counsel to the Appellant in relation to the validity of both written depositions/declarations are misconceived as both declarations have not offended the Oaths Act and or any known law/Act. He then urged the Court to uphold/affirm the judgment of the trial Court and to dismiss this appeal.

35. It is further submitted that in line with the provisions of Order 32 (2) (1) of the Ekiti State High Court (Civil Procedures) Rules 2011 which provides thus;

“Any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in the Open Court”, Claimant as witness for himself on 27th March, 2014 was sworn on Holy Bible and he thereafter adopted his written deposition.”

36. Learned Counsel then submitted that whatever defects (if any) in the written deposition and the additional deposition by the Claimant as Respondent as his own witness in his written statements/depositions has been cured by the sworn statement and or declaration in the witness box in the open Court.

37. It is further respectfully submitted that once the written statement/deposition has been validly sworn before a Commissioner for Oath, that oath becomes valid in spite of any alleged defects as form. See GE INT’L OPERATIONS LTD V Q-OIL & GAS SERVICES Supra at 270 Paras E-F.

38. In GE INT’L OPERATIONS LTD V Q-OIL & GAS SERVICES Supra at 270 Paras E-F, the Court held that in an affidavit, the declarant or deponent swears on oath as to the truth of the declarations.

39. Affidavit contains evidence and testimony. See MAMGNUSSON V KOIKI (1993) 12 SCNJ P. 114.

40. It is further submitted boldly that by Section 13 of the Oaths Act, Cap 01, Laws of Federation of Nigeria, 2004, it shall be lawful for any Commissioner of Oaths, Notary Public or any person authorized by the Act, to administer an oath, to make and receive the declaration of any person voluntarily making the same before him in the form set out in the first Schedule to the Act.

41. The forms prescribed in the first schedule to the Oaths Act is to serve as a guide as to the form an acceptable oaths within the provisions of the Oaths Act should be taken. In EKPENETU v OFEGOBI (2012) 15 NWLR (PT 1323) P. 276 at 308.

42. Learned counsel therefore submitted that were there is substantial compliance with the provisions of the Oaths Act, an affidavit will not be declared incompetent merely, because the words prescribed by the Act have not been used word of word. This is because it is no possible to lay down a totally rigid general principle on the point. See EKPENETU V OFEGOBI Supra at PP. 308 – 309 Para C-B; OJIBARA V GOVERNOR, KWARA STATE (2005) 1 FWLR (Pt 243) F 39 and OGWUEGBU V AGOMUO (1999) 7 NWLR (Pt 609) P. 144

43. It is further submitted that all the legal arguments and submissions proffered by the Appellant’s counsel in respect of issue one in the Appellant’s Brief of Argument most particularly paragraphs 3.03, 3.04 and 3.05 are misplaced in law and they are all issues of technicality.

44. It is long settled law that the heydays of technicality are over. Technicality justice is no justice at all and Court of law should distance itself from it. Courts lean towards doing substantial justice rather than technicality. See EKPENETU V OFEGOBI Supra at 307 Paras A-E and 308 Paras A-C, ABUBAKAR v YAR’ADUA (2008) 4 NWLR (Pt 1078) P. 465, FAMFA OIL LTD v A.G. FED (20030 18 NWLR (Pt 852) P. 453 and MAGIT v UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR (Pt. 959) 211.

45. It is further respectfully submitted that Appellant counsel’s submission in respect of the validity of the written deposition of the Claimant as his own witness is as to form and not substance.

46. The effect of such non-compliance has been cured by Order 5 Rule 1 of the Ekiti State High Court (Civil Procedures) Rules, 2011. He urged the Court to resolve issue one in favour of the Respondent.

47. ISSUE TWO

Whether from the oral and documentary evidence placed before the lower Court, the learned trial judge was right to have granted the Respondent’s claims before the Honourable Court?

48. It is trite law that he who asserts facts must prove them. See Sections 131 (1), (2), 132,133 and 136 of the Evidence Act, 2011. See the cases of PHILIPS v E.O C & IND. CO
LTD, (2013) 1 NWLR (Pt 1336) P. 618 at 641 Paras A-B, OJOH v KAMALU (2005) 18 NWLR (Pt 958) P.523 and GEORGE v UBA LTD (1972) 8-9 SC P. 264. It is also trite law that it is a fundamental procedural requirement that when issues are joined by parties in their pleadings, evidence is required to prove them as averred. It is the person upon whom the burden of establishing that issue lies that must adduce satisfactory evidence.

49. It is in the light of the discharge of that onerous task of burden of proof in civil cases that Respondent tendered Exhibits “A” and “G”. He urged the Court to give due considerations to Exhibits “A” and “G” tendered by the Respondent. Further he urged the Court to give due consideration to Exhibit “H” tendered by the Appellant. See the case of JIMOH V AKANDE (2009) 5 NWLR (Pt 1135) P.549.

50. It is further submitted that it is obvious and crystal clear from the face of Exhibit “H” vis a vis Exhibit “G” that the Respondent’s signature was lifted from Exhibit “G” unintelligently and superimposed on Exhibit “H” (Which is the purported letter of set-off). These were some of the manipulations and unethical behaviors carried out in respect of the Respondent’s Account with the Appellant.

51. It is settled law that where a Plaintiff alleging a fact pleads that fact and produces evidence in proof of it, the onus will shift to the Defendant to adduce evidence in its rebuttal. See OLOWU V OLOWU (1985) 2 NWLR (Pt 13) P. 373 at 386.

52. With respect to this appeal, the failure of the Defendant now Appellant in this appeal to call Miss Christianah Kokobili and Miss Anne Uchena Isobo to rebut the assertions by the Respondent that he has no connection with Exhibit “H” and that he never authorized, made and mandated Exhibit “H” is fatal to the defence of the Appellant. And urged the Court to so hold. See the case of OGUNJEMILUA v AJIBARE (2010) 11 NWLR (Pt 1206) P. 575 at 576 Paras G-B.

53. It is our respectful submission that Exhibits “I”, “J”,”K”, “L”, “M” and “N” are unpleaded documents. They sprang surprises on the Respondent and he urged this Honourable Court to expunge them and not to place any reliance on them. See AGBOOLA v UBA PLC (2011) 11 NWLR (Pt 1258) P. 375 at 397 Paras F-G. He urged this Honourable Court to hold that the Respondent has proved his case by satisfactory oral and documentary evidence before the lower Court and to resolve issue two in favour of the Respondent.

54. ISSUE THREE

Whether the award of Two Million Naira (N2, 000,000.00) only of general damages by the learned trial judge was justified in the circumstances of this case?

55. General damages are those damages that the law presume flow from the type of wrong complained of. General damages are intended to compensate the Plaintiff for the financial loss present and future, suffered by the Plaintiff. In making an award of damages, it is relevant to bear in mind, galloping inflation and consistent depreciation of the value of the naira which is obvious all. General damages are awarded by the Courts based on its discretion from the surrounding circumstances of the case. See IGHRERINIOVO v S.C.C. Nig Ltd (213) 10 NWLR (Pt 1361) P. 138 at 153-154 Paras H-A and 154 Paras B-C, EZE v LAWAL (1997) 2 NWLR (Pt 487) P. 333; KALU v MBUKO (1988) 3 NWLR (Pt 80) P.86.

56. In the circumstances of this appeal, Respondent made the fixed deposit of N7, 000,000.00 with the Appellant on 13th March, 2009. The said fixed deposit was abruptly terminated by the Appellant before the maturity dated on 11th June, 2009. The Appellant has been trading with the said fixed deposit sum of N7, 000,000.00 from 13th March, 2009 till date at high interest rates to her customers.

57. Respondent claimed for Fifty Million Naira (N50, 000,000.00) only being general damages for the Appellant’s breach of contract. Respondent adduced sufficient, credible and satisfactory oral and documentary proofs to establish his claims.

58. The award of N2, 000,000.00 general damages in the discretion of the lower Court in the circumstance of the case though small, is justified.

59. It is further submitted that there exist no grounds in the circumstances of this case for the Appellate Court to interfere with the award of general damages in this by the lower Court in this appeal. See IGHERERINIOVO v S.C.C. (NIG) LTD Supra at 154 Paras D-F and EZE V LAWAL (1997) 2 NWLR (Pt 487) P. 333. He urged the Court to resolve issue three in favour of the Respondent.

60. In the final analysis, learned Counsel urged the Court to dismiss the appeal and to uphold/affirm the decision of the lower Court in the light of the legal arguments and submissions canvassed above.

RESOLUTION OF ISSUES:

61. ISSUE NO 1:

The main issue at stake in this issue is whether or not the written statement on oath of the Respondent’s sole witness is valid in law. In paragraphs 35 of the written statement oath of the Respondent sole witness which was filed at the registry of the lower Court on the 5th June 2012 and paragraph 30 of the additional written statement on oath in support of the Reply to statement of Defence filed at the registry of the lower Court on the 8th October 2013, the Respondent as witness stated thus.

“That I swear to this affidavit in truth and in good faith” and that I swear to this affidavit in truth and in good faith”

The Appellant had at the lower Court raised on objection to the competence and validity of the said statements and by extension the evidence placed before the Court. The trial Court however treated same as an irregularity and/or technicality which has not affected the substance of the case because according to the Court the same witness was subjected to another oath taking in the witness box. Learned Appellant Counsel in arguing this issue submitted that the conclusion of the trial judge is not founded in law. According to him he contended that by paragraphs 35 and 30 of the written statement filed by the Respondent the lower Court predicated its judgment on an affidavit and not on a written statement on oath as enjoined by the Rules of the lower Court. By the provisions of Order 3 Rule 2 (1) (c) of the Rules of the lower Court prescribes “written statement” and not an affidavit.

It may be necessary to distinguish an affidavit and a written statement.

62. An affidavit is that upon which motions are largely decided while written statement on oath upon which facts in pleadings are predicated. A written statement on oath is the evidence on which a party relies in Court to establish his case or his answers to opponents’ case as required by Order 32 Rule 2(1) of 3(1) of the Rule of the lower Court. It is equally unlike pleading which are written statements (and not evidence) generally of facts relied upon by a party in proof of his case. See: B.V. Magnusson V. Koiki & Ors (1993) LPELR-1818 (SC)

63. Order 3 Rule 2(1) (c) of the Rules of the lower Court prescribes that a written statement must be on oath and not an affidavit. See: Leo Melos Pharmaceutical Industries Ltd & Anor v. Union Homes Savings and Loans Ltd (2010) LPELR – 4431 (CA).

64. Respondent Counsel submitted that the entire arguments of the Appellant is this issue as they relate to the competence and validity of a written statement on oath filed in the Registry of this Court on the 5th June 2012 and the additional written statement on oath captioned “written statement on oath of Respondent’s witness in support of the Reply to statement of Defence” filed on 8th October 2013 misconceived, misapplied and most certainly not the law. He referred the Court to GE INT’L Operations Ltd. v. Q-oil & Gas Services (2015), NWLR (pt 1440) 244 where the Court held thus:

“When an out of Court statement in writing is made on oath, it becomes a testimony without the oath, the deposition or written declarations on a piece of paper is a mere piece of paper. The oath makes written declarations or disposition on a piece of paper an affidavit.” See also: Oraekwe v. Chukwuka (2010) LPELR 9128, Maraya Plastics Ltd v. Inland Bank (2007) 7 NWLR (pt 765) 109; Ishaq v. INEC (2008) LPELR 4334.

65. In paragraphs 35 of the written statement on oath of the Respondent filed on the 5th day of June 2012 and paragraph 30 of the additional written statement on oath in support of the Reply to the statement of defence filed on the 8th day of October 2013, Respondent as witness stated thus:

“That I swear to this affidavit in truth and in good faith” and “That I swear to this affidavit in truth and in good faith.”

The above depositions in the alleged written statement are not in full compliance with the provisions of the Oaths Act as to qualify as written statement on oath prescribed by Order 3 Rule 2(1) (c) of the Rules of the lower Court. The said Order 3 Rule 2(1) (c) of the Rules of Ekiti State High Court Rules mandatorily directs a Claimant to file “written Statement on oath of the witnesses” among other documents along with his originating process. The word ‘SHALL’ as embodied in the said Order has been interpreted in many judicial authentic to mean ‘compulsion’ See: Onochie V. Odogwu (2006)6 NWLR (pt 975) 65 (SC).

It therefore follows that a valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria 2004. The form prescribed by Section 13 is in the 1st Schedule to the Act which provide as follows:

“I do solemnly and sincerely declare…”

Any Written statement, therefore, which does not bear the First Schedule to Section 13 of the Oaths Act, cannot be said to be a Written Statement on Oath. See: Obed Orlando Ibe & Anor. v. Nkiru Ugochukwu & 41 Ors. (2010) All NWLR (Pt. 504) 1590 @ 1592/1593.

Section 13 of the Oaths Act provide as follows:

“It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorised by the Act to administer oaths, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule which is as follows, I (name supplied) do solemnly and sincerely declare, that I make this solemn declaration contentiously believing same (or the contents) to be true”.

In putting the legitimacy of oath in any Written Statement to rest, the Enugu Division of the Court of Appeal said in Chikwelu Chris Obumneke v. Okeke Sylvester & Anor. (2010) All FWLR (Pt. 605) 1945 @ 1947 as follows: “Thus, every oath to be legitimate must comply with the provisions of the Oaths Act, Cap. 333, Laws of the Federation and the 1st Schedule thereto. Where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it is not an oath or Affidavit properly so called”.

From the signature and stamp of the Commissioner for Oaths from the above, it would be seen that the grouse expressed by the Appellant Counsel against both written declarations/depositions border on both their form and substance. Therefore, the numerous authorities cited like: GE Int’l Operations Ltd v. Q-Oil & Gas Services (2015), NWLR (pt 1440) 244, Oraekwe v. Chukwuka (2010) LPELR 9128, Maraya Plastics Ltd v. Inland Bank (2002)7 NWLR (PT 765) 109, Ishaq v. INEC (2008) LPELR 4334, Onujabe v. Idris (2012) 2 NWLR (pt 1284) 285, Ijaodola v. Registered Trustee of C and SCM (2006) 4 NWLR (pt 969) 159 and Udusegbe v. SPDC Nig. Ltd. (2008) 9 NWLR (pt 1093) 593 do not apply.

The above authorities as germane as they may appear to be refer to Affidavits duly sworn as to the truth of the declarations and do not apply here.

66. As stated earlier in the course of this judgment, any written statement which does not bear the 1st schedule to Section 13 of the Oath Act, cannot be said to be a written statement on oath. It is this vital aspect of the oath that is missing in the written statement of the Respondent’s sole witness in the present appeal. Noncompliance with the provisions of the Oaths Act is a breach of the Oath Act. The consequence is that the entire statement of the Respondent sole witness is left bare. The Rules of Court are not made for fun, they are made to be obeyed. See: Hard v. Hact (1990) 1 NWLR (pt 126) 276, Tom Ikimi v. Godwin Omamnli (1995) 3 NWLR (pt 383), Ibrahim v. Col Cletus Emein & Ors (1996) 2 NWLR (pt 430) 322, Tehat A.O. Sule v. Nigeria Cocoa Board (1985) All NLR 257, Odu v. Jolaoso (2002) 37 WRN 115.

67. It is on the basis of the above that I do not agree with the submission of the Respondent’s counsel that since there was a substantial compliance with the provisions of the Oaths Act, an affidavit should not be declared incompetent merely because the words prescribed by the Act have not been used word for word. The Rule of Court in that aspect must be obeyed and it is not a king of breach that can be referred to as a technicality as Respondent’s counsel would like us to believe.

68. In view of the above mandatory provisions of the law which the Respondent has breached, I shall and hereby resolve this issue No. 1 in favour of the Appellant.

69. ISSUE NO 2:

Whether by the entirely of the evidence (oral and documentary) led before the lower Court, the trial judge was right to have granted the claims of the Respondent’ Grounds , 3, 4, and 5 of the Amended Notice of Appeal.

70. In arguing this issue, learned Appellant Counsel reviewed the state of the pleadings and evidence led thereon. Learned counsel submitted that the written statement on oath of Claimant’s witness in support of the Reply to the statement of defend contains evidence of facts not pleaded and therefore that evidence relating to facts not pleaded sees to no issue. See: Akeredolu & Ors v. Akinremi & Ors (1989) LPELR – 328 (SC), National Investment & Properties Co Ltd v. Thompson Organisation Ltd & Ors (1969) 1 All NLR 138.

71. Learned Respondent Counsel on the other tendered Exhibits A, G and urged the Court to give due consideration to the exhibits and even also Exhibit H, E tendered by the Appellant. See: Jimoh v. Akande (2009) 5 NWLR (PT 1135) 549.

72. According to counsel, he submitted that it is obvious and crystal clear that from the fact of Exhibit H vis-a-vis Exhibit G that the Respondent’s signature was lifted from Exhibit G unintelligently and superimposed on Exhibit H (which is the purported letter of set-off. Therefore the Appellant has a duty to rebut. See: Olowu v. Olowu (1985) 2 NWLR (pt 13) 373. Also, that the inability of the Appellant to call Christiana Kokobii and Miss Anne Uchenna Isobo to rebut the assertions of the Respondent is fatal to their case. See: Ogunjemilua v. Ajibade (2010) 11 NWLR (pt 1206) 575.

73. Exhibits I, J, K, L, M & N are not pleaded documents and therefore should be struck out.

74. It may be necessary in determining the merit of this issue to consider the following amongst others:

(i) The determination of the exact amount applied for by the Appellant to off-set the indebtedness of Double capital consult limited as to warrant the grant of legs 23(a) and (b) of the Respondent’s claim.

(ii) The Resolution of Exhibit G (the Respondent’s specimen signature) Exhibit H (letter of set-off dated 13th March 2009) Exhibit K (individual Account opening form)

(iii) Fraud.

75. The Respondent, by Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 16 of the Statement of Claim at Pages 12 to 16 of the Record, aver that he made a fixed deposit investment of N7 million on 13th March, 2009 for three months subject to payment of the sum of N225,246.58 as interest. It was his case that he terminated his investment with the Appellant vide letters dated 28th May, 2009 and 16th June, 2009 upon the application of N4 million to set-off the indebtedness of Double Capital Consult Limited. He vehemently denied knowledge of the said Company as well as knowledge about the facility granted the Company. He denied authorizing or mandating any withdrawal from his account. See: Paragraphs 3 to 33 of the Written Statement on Oath filed on 5th June, 2012 at Pages 39 to 46 of the Record of Appeal.

76. It is the Appellant’s case that the Respondent upwardly increased the balance in his Savings Account from N4,595,987.53 by making an additional deposit of N2,500,000.00 totaling N7million needed not only to serve as security for a period of 90 days subject to the payment of N250,273.97 as interest. It is the Appellant’s case that it applied the sum N4 million out of the investment off-set the indebtedness of Double Capital. See also paragraphs 3 to 31 of the written statement on oath filed on 9th August 2012 at paper 63-66 of the records.

77. Evidence before the lower Court showed that it is only the sum of N4 million that was applied for, to off-set the indebtedness of Double capital which was accordingly deducted by Appellant. Paragraph 25 of statement of defence at page 21 of the records, the Appellant averred as follows:

“The Defendant avers that upon the failure of the Plaintiff to give specific instruction in respect of his investment, it has rolled over the investment of the Plaintiff (less the pledged sum) at prevailing market rate in line with the terms of the investment made on 13th March 2009”

Paragraph 34 of the written statement on oath at page 66 of the records, the 1st defence witness stated:

“That in line with the terms of the investment made on 13th March 2009 and in the absence of contrary directive from the Plaintiff, we have been rolling over the balance in the Plaintiffs fixed Deposit Account (after applying the pledged sum) at prevailing market rates”

78. The above averments were not specifically denied in the Respondent’s reply to the statement of defence even though this is the main crux of the case at the lower Court. What it all means is that they are all deemed admitted by the Respondent. See: Unibiz Nigeria Limited v. Commercial Bank (Credit Lyonnais (Nig) Ltd (2005) 14 NWLR (pt 944) 47 (SC), Abiodun Adelaja & Ors v. Yesufu Alade & Anor (1999) 6 NWLR (pt 608) 544 (SC); Alhaji Sani Abubakar Danladi v. Barr Nasiru Audu Dangiri & Ors (2014) LPELR – 24020 (SC), Okonkwo v. C.C.B. (Nig) Ltd (2003) 8 NWLR (pt 822) 347 at 418.

79. From what was averred in the two paragraphs of the sworn statement on oath, there is no other evidence from anywhere to show that the Appellant tampered with the Respondent’s account after deducting the 4million Naira applied for, to off-set the indebtedness of Double Capital.

80. It is therefore surprising where and how the sum of N7million was being ordered by the trial Court to be refunded by the Appellant with interest when the evidence so far disclosed the sum of 4 million Naira. Even the interest so ordered is uncalled for as paragraph 34 of the written statement on oath at page 66 of the records show that:

“We have been rolling over the balance in the Plaintiff’s Fixed Deposit Account (after applying the pledges sum) at prevailing market rates”

81. The Respondents made heavy weather in respect of Exhibits A, G and H and waged the Court to give due consideration to them. That a look at the fact of Exhibit H vis-a-vis Exhibit G shows that the Respondents signature was lifted from Exhibit G unintelligently and superimposed on Exhibit H (which is the purported letter of set-off). The Respondent denied the signature and does not know of the existence of any letter of set-off and/or execution of same as stated in paragraph 21 (a) & (b) of the Reply to statement of defence at page 25 of the record thus:

Paragraph 21

Plaintiff further states that whatever document/letter of set-off if any, which Defendant has possessed is forged and fraudulently obtained

(a) Plaintiff never signed nor executed any such letter of set-off nor provided any such security to Double Capital Consults Limited in respect of the said loan.

(b) Plaintiff wages Court to meticulously compare Plaintiffs signature on the mandate file, his signature in Court vis-a-vis the Plaintiffs signature on whatever letter of set-off-security.

He submitted forcefully that the Respondents signature was lifted from Exhibit G and super-imposed on Exhibit H.

82. It is settled that where there is a dispute as to signature as in this case, the duty of the Court is to compare same, there is statutory provision for this in Section 101 of the Evidence Act Cap 2011. See also: Adenle v. Olude (2002) 18 NWLR (pt 799) 413 at 430.

83. It is also settled that mere dissimilarity of the signatures is not conclusive evidence. It is not proof that they were not made by the same person. See also: Daggash v. Bulama (2004) ALL FWLR (pt 212) 1666 at 1712.

84. This Court has been called upon to sanitise Exhibits G, H & K and therefore to see if there is:

(a) Any nexus between Double Capital Consult Limited and the Respondent.
(b) Whether the signature there on are signed by the Respondent.

85. This Court is at liberty to do so. The reason is that evaluation of a document is not only within the exclusive preserve of the trial Court. Both the trial judge and the Appellant judge have equal right to evaluate a documentary evidence. This is because unlike oral evidence which an Appellate judge does not see he sees like the trial judge, the document as Exhibit. Therefore, where the finding of a trial judge on documentary evidence is perverse, an Appellate judge will easily see the perversion and employ his Appellate powers to correct it. See: Iwuoha v. Nigerian Postal Services Ltd & Anor (2003) 8 NWLR (pt 822) 308 (Sc). Exhibits G, H & K are all documentary evidence and as such speak for themselves. The signatures on them show one and the same type of signature on them belonging to the Respondent. Even if there is a slight dissimilarity though not conceded as the lawyers would say, it is not even a conclusive proof that the Respondent is not the author/maker. These Exhibits as documentary evidence do not tell lies on the surface of it. I do not believe the Respondent when he claimed that the Respondent’s signature was lifted from Exhibit G. and superimposed on Exhibit H. There is no credible evidence led to substantiate his position on that matter. It is being contended that the Respondent’s signature in Exhibit G was lifted unintelligently and superimposed on Exhibit H (which is the letter of set-off).

86. Unfortunately, there is no credible evidence anywhere in support of this allegation. It only surfaced in the learned counsel’s brief of argument filed on the 10th of May, 2016. It is settled law that address of counsel however brilliant cannot take the place of evidence particularly where there is no evidence, as in the instant case in support of learned counsel submission. See Union Bank of Nigeria PLC & Anor v. Ayodare & Sons (2007) LPELR-3391 (SC) (2007) 13 NWLR (Pt 1052) 567

87. In the course of his judgment the learned trial judge held as follows:

“The totality of the instant case suggest a case of a well calculated and orchestrated fraud stage managed by some internal officials of the bank who connived with the aid of C.E.O. of Double Capital Limited to defraud the Claimant and the bank in my view, it is a fraudulent sharp practice turned sour and must be condemned in the strongest terms in favour of the Claimant and the generality of the public to safeguard the interest of the citizens of this country and I so hold”.

88. It is usual that in the course of writing a judgment, a judge is bound to air his views and make comments here and there and may also give reason for certain findings. That may well be so. However, the concern of this Appellate Court is to determine whether the decision of the trial Court is right and not whether the reasons for the decision are correct. See Nkado v Obiano (1997) 5 NWLR (Pt.503) 31, Nwankwo V. E.D.C.S.U.A. (2007) 5 NWLR (Pt. 1027) 377.

89. All said and done, the above conclusion of the trial judge has no root in the pleadings filed and exchanged by the parties or the evidence led before the Court. The trial judge raised the issue suo motu without offering the parties the opportunity to address her on the issue. Having raised such critical issue even at the eleventh hour of the case, the learned trial judge ought to have given the Appellant the right to be heard on that issue. Having not done so, there is no doubt that it has not fallen foul of the principles of fair hearing and I so hold. Such a breach of fair hearing is capable of setting aside its decision. See Chief S.O. Adebayo & Ors v. People Democratic Party & Ors (2013) LPELR-20342 (SC)

90. He who alleges has a duty to prove which the Respondent has not discharged in this case I therefore hold the view that the Respondent is the author of the signatures in Exhibits G, H & K respectively. That being the case, the Respondent having endorsed his signature on Exhibit H (the letter of set-off) cannot be heard to say that he did not know of the existence of Exhibit H or execution of same. With due respect to learned counsel, I think that this is an afterthought with the letter of set-off already signed by the Respondent. It is therefore clear to every person that there exist a business relationship between them.

91. Learned Respondents counsel had submitted in his brief that failure of the Appellant to call one Miss Anne Uchenna Isobo and Miss Christianah Kokobili to rebut the assertions of the Respondent that he has no connection with Exhibit H and that he never authorized, made or mandated Exhibit H is fatal to the defence of the Appellant.

92. It is trite that in a civil action, a party is not obliged to call a particular witness if he can establish his action otherwise. See: Onwujuba v. Obienu (1991) 4 NWLR (pt 183) 16 (Sc). Even in criminal cases as well, the law does not impose any obligation on the part of the prosecution as to the number of witnesses to call in order to prove his case. See: Babuga v. State (1996) LPELR – 701 (Sc) (1996) 7 NWLR (pt 460) 279; Adaje v. State (1979) LPELR-70 (Sc), Archibong v. State (2006) 14 NWLR (pt 1000) 349. So the submission made by the Respondent on the inability to call the two parties herein before mentioned is of no moment and is hereby discountenanced.

93. Exhibits I, J, K, L, M and N though admitted in evidence for whatever it is worth does not affect the merit of this appeal. And even where expunged as prayed on the Respondent, it would not affect nor enhance the merit of this appeal on this issue.

94. In view of all the above, I shall and hereby resolve this issue No. 2 in this appeal in favour of the Appellant.

95. Issue No 3:

“Whether the award of N2 million only of general damages by the learned trial judge was justified in the circumstance of this case”

96. General damages is often presumed and awarded. However, a Plaintiff can only be obliged with the discretionary powers of the trial Court if from the evidence adduced by him, the relief is actually proved. In other words, without the proof of the relief, the Court is bereft of the discretionary power to presume that general damages accrued and award same.

97. The principles upon which an Appellate Court acts in an appeal against the quantum of damages are well settled and were stated thus by Greer, LJ in Flint v. Lovell (1935) 1 K.B 354 at 360

“In order to justify reversing the trial Judge on the question of amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong princw,iple of la or that the amount awarded was so extremely high or so very small as to make, in the judgment of this Court an entirely erroneous estimate of the damage to which the Plaintiff is entitled”. Lord Greer L.J. in the English case of Flint v. Lovell (1935) 1 K.B. 354 aptly observed thus:

“I will be disinclined to reverse the findings of a trial Judge as to the amount of damages merely because they think that it they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages, it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled”.

98. Where the learned trial Judge acted on wrong principles of law in quantifying damages, the Court of Appeal must intervene to make the proper assessment for damages that ought to have been awarded considering the peculiar facts and circumstances of the case. In Aremu Hassan v. Benjamia Tade (2001) 49 WRDN 130; (2011) LPELR 4235 my learned brother, Denton-West aptly observed thus:

“On the quantum of damages awarded, this Court will not generally alter an award of damages unless it is established that the Judge proceeded on a wrong principle of law or that his award was clearly an erroneous estimate in that the award was manifestly too large or too simple.”

See: Bhojosons Plc. V. Daniel Kallio (2006) 19 WRN 170; (2006) All FWLR (Pt. 312) 2038 – 2064 and Gari v. Seirafina (Nig.) Ltd. (2008) 2 NWLR (PT. 1070) 1 AT 20. Per Mukhtar, JCA [p. 148 – 149] lines. 35 – 40

99. Where there is no other evidence to help in the assessment of damages, the Respondent will be entitled to nominal damages. See: Chief Anthony Edosa v. First Bank of Nigeria Plc, (2011) 35 WRN 107; (2011) LPELR-878 where my learned brother, Shoremi, JCA observed thus:

“Quantum of damages like any other issue in our civil procedure is a matter of evidence; where one gives no evidence that can help in the assessment of damages he is normally entitled to nominal damages. See: Baker Marine v. Chevron (2007) 2 WRN 1; (2006) 6 SCNJ 124 (pages 139 – 140).”

100. Quantum of damages must be assessed according to the standard of a reasonable person’s opinion. It is therefore necessary for the learned trial Judge to make proper assessment of the damages awarded according to the peculiar facts and circumstances of the case before him. My learned brother, Okoro, JCA (as he then was) aptly so observed in case of: Akinboye v. Adeko (2011) LPELR-4551 as follows:

“The Supreme Court in Yalaju-Amayife v. A.R.E.C. Ltd. stated that the measure of general damages in term of money is for the Judge to decide. It is always necessary for the Judge to make his own assessment of the quantum of such damage”.

My learned brother, Aji, JCA has similarly observed in the case of Chief Isaac Olokunlade & Ors. v. Chief Peter Adebisi Ademiloyo (2011) 35 WRN 41; (2011) LPELR-3943 as follows:

“Therefore, in awarding damages, a trial Court must take its own assessment of the quantum of such damages in the light of evidence adduced and not base its award on speculative claim and scanty facts”. See: Abiara v. Reg. T.M.C.N. (2007) 11 NWLR (Pt. 1045) 280, Gari v. Seirafina (Nig.) Ltd. (2008) 2 NWRL (Pt. 1070)”.

101. In the instant case, I think I agree with the Respondent’s submission that the award of N2million Naira against the Appellant on record is to say the least on the high side. A Court will not generally alter an award of damages made by the lower Court unless it is based on an erroneous estimate in that the award is manifestly too large as in this case. The trial Court did not state the reasons for making such an award or how it came about the N2million Naira awarded. No credible evidence was adduced in the peculiar circumstances of this case. However since there is no other evidence in the records to help in the assessment of damages, the Respondent nonetheless will be entitled to nominal damages. See: Chief Anthony Edosa v. First Bank of Nigeria Plc (2011) 35 WRN 107.

102. Though the award of damages is at the discretion of the trial Court, the award of N2million Naira in the instant case was arbitrarily made and cannot be allowed to stand. See: Eneh v. Ozor (2016) 16 NWLR (pt. 1538) 210 (Sc).

In respect of this issue, I therefore resolve same in favour of the Appellant.

103. On the whole, the three issues raised in this appeal is hereby resolved in favour of the Appellant. The appeal is highly meritorious and is hereby upheld and consequently allowed. The judgment of the lower Court is hereby set-aside.

104. Appeal allowed. N50, 000.00 cost to the Appellant.

BELGORE, J.C.A.

I agree.

AKINBAMI, J.C.A.

1. I have read in advance the lead judgement just delivered by my learned brother PAUL OBI ELECHI, JCA and I agree with his reasoning and conclusions.

2. I am also of the view that the three issues should be resolved in favour of the Appellant. I also allow the appeal, and set aside the judgment of the lower Court.

3. I abide the consequential orders.