UNITED BANK FOR AFRICA PLC V PATKAN VENTURES LTD

UNITED BANK FOR AFRICA PLC V PATKAN VENTURES LTD


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON THURSDAY, 23RD MARCH, 2017


Appeal No: CA/IB/273/2012
CITATION:

Before Their Lordships:

MONICA BOLNA’AN DONGBAN-MENSEM, JCA

MODUPE FASANMI, JCA

CHINWE EUGENIA IYIZOBA, JCA


BETWEEN

UNITED BANK FOR AFRICA PLC

(APPELLANT)

AND

PATKAN VENTURES LIMITED

(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Grounds of Appeal – Proper framing of a ground of appeal

How a grounds of appeal is to be couched/framed

“Order 6 Rule 2(3) of the Rules of this Court (Now Order 7 (3) of the 2016 Rules) provides as follows:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”

The case of KHALI V YARADUA gave judicial exposition to the provision of Order 7 (2) (3) as follows:
“….A ground of appeal must not be argumentative and narrative in compliance with the above rules. If it does so, it ceases to be a ground of appeal but an argument or narrative whose rightful place in a proceeding of a Court or Tribunal is at the hearing of the appeal. In no way should particulars be independent from the appeal itself but auxiliary to it. See OJE V EDE (1995) 3 NWLR PT 385-564 @ 584-585 AND CBN V OKOJI (2002) 8 NWLR PT 768 P 48 @ 61.”Per DONGBAN-MENSEM, J.C.A. read in context

2. Proliferation of Issues – Position of Appellate Courts on proliferation of issues

Attitude of appellate Courts as it relates to proliferation of issues

“It is true that the proliferations of issues are frowned at by the Apex Court and by this Court.
In the case of OKONOBOR v. D.E & S.T. Co. LTD (2010) 17 NWLR pt. 1 1, pg. 181, the Supreme Court per Onnoghen JSC (AHTW) conveyed the abhorrence of such practice in these terms:-
“It is settled that proliferation of issues is unacceptable in our Appellate Courts. While Counsel is permitted to formulate an issue out of a ground or grounds appeal, he cannot formulate two issues out a ground of appeal as in the instant appeal.”Per DONGBAN-MENSEM, J.C.A. read in context

3. Issues For Determination – Position of the Court on failure of counsel to relate issues for determination to the grounds of appeal

Attitude of Court towards failure of counsel to relate issues for determination to the grounds of appeal

“It is instructive that neither the Appellant nor the Respondent/Cross-Appellant tied up the issues they each formulated to the grounds of appeal. As it stands, the issues not so tied to the ground of appeal ought to be struck out especially as the issues outnumber the grounds of appeal raised. (See MOZIE v. MBAMALU (2006) 15 NWLR pt. 1003 466 per Tobi JSC).

The Court is always enjoined to do justice and except for serious and fundamentally disabling errors, the Court must seek to do justice at all times. The process of litigation is unnecessarily unending due to errors attributable to learned Counsel whose services are employed by litigants for want of the legal knowledge to represent themselves.” Per DONGBAN-MENSEM, J.C.A. read in context

4. Issues For Determination – Reason for the formulation of issues for determination

Essence of formulation of issues for determination

“I have taken the liberty of perusing the notice of appeal with a view to salvage whatever is worth determination in this appeal. I have found that all the grounds of appeal are actually mere repetition and the grounds replicate each other. I find fortification in the case of SANUSI v. AYOOLA (1992) NWLR Pt. 265, 275 where my Lord – KARIBI-WHYTE JSC, held that

“The essence of the formulation of issues is to reduce the grounds of appeal into terse, compact formulations which take cognizance and consideration of the same issues running through more than one ground of appeal.”Per DONGBAN-MENSEM, J.C.A. read in context

5. Interference with Findings of Fact – Attitude of appellate courts to interference with findings of fact made by a lower court

Attitude of appellate courts to findings of fact made by a lower court

“This Court does not lightly interfere with the finding of facts which are not perverse. In the case of DIKE OGU V AMADI (2008) 12 NWLR PAGE 650 it was held that:

“Where it is not shown that the decision of the trial Court is perverse and has occasioned miscarriage of justice, it is not the practice of the appellate Court to interfere with findings of fact of trial Court ….” Per DONGBAN-MENSEM, J.C.A. read in context

B. CONSTITUTIONAL LAW
6. Right to Fair Hearing – Instances where a party lacks the right to complain about lack of fair hearing

Circumstance where a party cannot be heard to complain of being denied the right to fair hearing

“The authority of MMS Ltd. v. Oteju (2005) 14 NWLR pg. 543 is in point.
A party which failed to take advantage of his presence before a Court to argue its matter cannot turn around and raise an issue of fair hearing. Fair-hearing simply means giving equal opportunity to each party.

Edozie JSC “fair” hearing means a matter conducted according to all the legal rules formulated to ensure that justice is done to the parties in a case.” Per DONGBAN-MENSEM, J.C.A. read in context

C. COURT
7. Duty Of Court – Duty of court where the Plaintiff’s evidence is unchallenged

Duty of court with respect to unchallenged and uncontroverted evidence

“In Buhari v. Obasanjo (2005) 13 NWLR pg. 269.

Edozie JSC “Where the evidence adduced by the Plaintiff is unchallenged, the Court still has the duty to evaluate the evidence adduced to see it if such is credible to sustain the claim.” Per DONGBAN-MENSEM, J.C.A. read in context

D. EVIDENCE
8. Estoppel By Conduct – Operation of the principle of estoppel by conduct

Operation of the rule of estoppel by conduct

“By the authority of ONAMADE V ACB (1997) 1 SCNJ 65 @ 83 the fact is that conduct which leads another to believe in a particular state of affairs to the detriment of that party will not be allowed to be resiled on.” Per DONGBAN-MENSEM, J.C.A.
read in context

9. Expert Evidence – Tests for the relevance of expert evidence

Conditions for allowing an expert to give evidence in court

“On the test on relevance of expert opinion, the Courts have held that “in certain cases, the evidence of opinion of an expert is relevant, but he must be called as a witness. He must also state his qualification and satisfy the Court that he is an expert on the subject in which his is to give his opinion and he must state clearly the reasons for his opinion (See per Tobi JSC, Sowemimo v. The State (2004) 11 NWLR p. 532).”Per DONGBAN-MENSEM, J.C.A. read in context

10. Expert Evidence – Meaning of expert witness

Who is an expert witness

“Who is an expert witness?

Section 57(2) of the Evidence Act 2004 describes an expert as a person specially skilled in any of the fields of foreign law, native law and custom, or of science or act, or in identifying handwriting or finger impression –

Section 57(a) of the Evidence Act has received several judicial expression by the Apex Court
and by this Court (See Uwa Printers (Nig.) Limited v. Investment Trust Company Ltd. (1988) NWLR (Pt. 92) 110; (1988) 12 S. C. (Pt II) 31; Attorney-General of Oyo State & Anor v. Fairlakes Hotels Limited & Anor (No.2) (1989) NWLR (Pt. 121) 255; (1988) 12 S.C. (Pt. I) 1; Afribank Nig Plc v. Anunebunwa (2012) 4 NWLR @ 560 and Allied Bank Nig. Ltd v. Akubueze (1997) 6 NWLR @ 374).

Following these decisions, an expert witness can be said to be a witness.
“A witness who has knowledge beyond that of the ordinary lay person enabling him/her to give testimony regarding an issue that requires expertise to understand. Experts are allowed to give opinion testimony which a non-expert witness may be prohibited from testifying to in Court, the party offering the expert must lay a foundation from the expert’s credentials and experience that qualifies him/her as an expert. Sometimes the opposing party will stipulate (agree to) to the expert’s qualifications in the interests of judicial economy.

Experts are qualified according to a number of factors, including but not limited to, the number of years they have practiced in their respective field, works, certifications, licensing training, education, awards, and peer recognition. They may be called upon as consultants to a case and also used to give testimony at trial. Once listed as a witness for trial, the materials they rely upon in forming an opinion in the case is subject to discovery by the opposing parties. Experts in a wide variety of backgrounds may testify, such as construction, forensics, gemstones, and many more areas. They are allowed to be compensated for their time and expenses in preparing for and giving testimony, as long as they are not being paid to perjure themselves.”

Culled from the web. Internet – 15/03/17.” Per DONGBAN-MENSEM, J.C.A. read in context

11. Expert Evidence – Conditions precedent to allowing an expert to give evidence in court

Conditions for allowing an expert to give evidence in court

“In the case of OTUNBA F. E. SOWEMIMO ANOR VS. THE STATE (2004) 11 NWLR PT 885 P. 515 @ 532, Tobi JSC, referred to the case of WAMBAI V KANO NATIVE AUTHORITY (1965) NWLR 15, where it was held that:

“In certain cases, the evidence of opinion of an expert is relevant, but he must be called as a witness. He must also state his qualification and satisfy the Court that he is an expert on the subject in which he is to give his opinion and he must state clearly the reasons for his opinion.”

The witness PW2 clearly testified as an expert witness. In the case of Attorney-General of Oyo State & Anor v. Fairlakes Hotels Limited & Anor (No. 2) (1989) NWLR (Pt. 121) 255; (1988) 12 S.C. (Pt. I) 1 my Lord UWAIS, J.S.C (AHTW) stated that:

“It therefore follows that it is not sufficient to say that where a document written by an expert is tendered in evidence and that document or the testimony through which it is tendered, if unchallenged, then it must be acted upon. The document is certainly subject to scrutiny by the trial Court and its contents could, in the process of the scrutiny, be rejected if there is reason to do so, as was done in the present case by the learned trial Judge.” Per DONGBAN-MENSEM, J.C.A.
read in context

12. Unchallenged Evidence – Effect of unchallenged evidence

Effect of an unchallenged/uncontroverted evidence

“The case of OBINECHE V. AKUSOBI (2010) 12 NWLR 383 held that the unchallenged and uncontroverted evidence is good material to be received and acted upon by a Court.” Per DONGBAN-MENSEM, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY DONGBAN-MENSEM, J.C.A.


This appeal challenges the decision of the High Court of Justice of Oyo State delivered by Hon. Justice E. Esan on the 19th of August, 2011.

The Respondent was the Plaintiff at the trial in whose favour Judgment was entered against the Appellant who was the Defendant.

The facts which gave rise to the suit culminating into this appeal are better appreciated by a reproduction of the relief sought before the trial Court. These are stated in Paragraph 47 of the statement of claim at pages 6-10 of the records for this Appeal which record was transmitted to this Court on the 29/10/12 but deemed dully transmitted on the 18/10/16.

“47 WHEREOF the Plaintiff Claims against the Defendant as follows:

a) A declaration that the Regional Director of Defendant, Mr. Bambe and Mr. Awe having held themselves out as having the authority of Defendant to negotiate with Plaintiff and receive a lesser amount than is owed Defendant on the consideration that it shall be paid once, Defendant is estopped from resiling from such negotiation.

b) A declaration that having paid a sum of N5,250,000.00 vide its Union Bank of Nigeria Plc Cheque No. 0009005 dated 12th February, 2007 in full and final satisfaction, its indebtedness on its account with Defendant, which said sum was accepted without any complaint by Defendant, Plaintiffs are no longer indebted to Defendant in respect of its account maintained with the New Gbagi Branch Ibadan of Defendant.

c) An order for the payment of the sum of N250,000.00 paid by Plaintiff to its solicitor vide receipt No. 00433 dated 23rd April, 2007 as professional legal fees for this suit, this being an avoidable litigation.
d) A declaration that the amount shown in the Statement of Account No. 0349003000013 9 maintained with the Ibadan New Gbagi Market Branch of Defendant is not a true account of Plaintiff’s banking transaction with the Defendant till 31st January 2007.

e) A declaration that Plaintiff’s account with Defendant was not properly kept in line with the Central Bank of Nigeria Monetary Policy Guidelines and Bankers’ Tariffs.

f) An order directing the Defendant to reverse all wrongful entries made in the said account and re-credit it with all monies wrongly taken out of the account either by over charge of interest, charges, cot or otherwise howsoever.

g) An order directing Defendant to work out, taking into consideration the Central Bank of Nigeria Monetary Policy Guidelines and Banker’s Tariffs and furnish Plaintiff with a true and accurate Statement of Plaintiff’s account with Defendant.

h) A declaration that by Defendant’s letter dated 4th October 2006 wherein Defendant stated clearly that “Similarly we hereby confirm that the second Term Loan has been cancelled effective 29/09/2006”, it is clear that there is no second account existing between Plaintiff and Defendant.

i) An order directing Defendant to release the Certificate of Occupancy of Plaintiff’s Petrol Station situate at Km 5, Ibadan-Ife Highway, Kukumagba, Ogungbade Village, Ibadan which was mortgaged to secure the overdraft and loan and also releasing the document from the Deeds Registry of the Ministry of Lands, Ibadan.
j) Refund to Plaintiff of a total sum of N2,374,312.95 made up as follows:

i) Excess charges on Commissions on Drafts issued on Plaintiffs Account plus interest thereon – N816,542.00

ii) Unwarranted charges tagged “Direct Credit Charge – N202,741.39
iii) Arbitrary Charge tagged Quarterly Management Charges” and interest accrued thereon – N92,363.05
iv) Unwarranted Processing Fee – N68,453.39

v) Excessive Processing/Renewal – N127,516.99

vi) Arbitrary Charges tagged SC on Loan N42,425.09

vii) Unwarranted Monthly Charges – N13,982.28

viii) Arbitrary Charges tagged “Fees/VAT on Loan O/D” – N140,580.97
ix) Returned Cheques without prior Credit – N7,012.30

x) Refundable Management Fees charged quarterly – N195,222.32
xi) Excessive Commission on Turn Over – N174,461.61

xii) Excessive Overdraft Interest – N419,951.90

TOTAL AMOUNT CLAIMED N2,374,512.44 Dated at Ibadan this 24th day of April 2007
Bode Elemide

BODEELEMIDE & CO.

Solicitors & Advocates

176, Obafemi Awolowo Way

Oke-Ado

Ibadan

FOR SERVICE ON:

The Defendant

UBA PLC

Ibadan Main Branch

Jubilee House

Dugbe

Ibadan.”

The Defendants incorporated a counter-claim in its statement of defence. (pg. 26-30 of the records).

After a contested prosecution and defence of the claim, the learned trial Court entered Judgment in favour of the Respondent and against the Appellant. The counter-claim was dismissed.

In this appeal, the parties will be referred to simply as the Appellant and the Respondent.

The Appellant felt aggrieved by the decision of the Oyo State High Court and has come before this Court for redress urging this Court “….to set aside the Plaintiff’s claim and award to the Defendant the counter-claim as may be entitled to…” (pg. 147 of the records).

Six grounds of appeal were raised for the determination of this Court.

The Respondent also felt discontented with a part of the decision of the lower Court and filed a notice of Cross-Appeal which is at pages 150-151 of the same record. Three grounds of appeal were set out in the Notice of Cross-appeal.

At the hearing of the appeal, the parties each represented by learned counsel, identified, adopted and argued their respective briefs.

The Respondent/Cross-Appellant raised and argued a Preliminary Objection in the Respondent/Cross-Appellant’s brief.

Preliminary Objection

The Respondent/Cross-Appellant argued the Preliminary Objection on two legs:

1. That the grounds of appeal are argumentative, verbose and should be struck out. The learned ounsel for the Respondent urges us to strike out the grounds of appeal on the authority of Order 6 Rule 2(3) of the Rules of this Court of 2011, (now Order 7 Rule 3 of the 2016 Rules of this Court). The cases of KHALI V YARADUA (2003) 16 NWLR PT 847 P. 446 @ 478 TO 499 AND CBN V OKOJI (2002) 8 NW R PT. 768 P 48 @ 61.
2. That the Appellant raised seven issues on six grounds of appeal and since issues should flow from grounds of appeal, they cannot outnumber the grounds of appeal. The learned Counsel urge us to strike out issues 1, 2, 6, 7 of the brief as – incompetent. The following cases were cited in support:

1. ORJI V STATE (2008) ALL FWLR PT 422 , 1093

2. YADIS V GNIC (2007) ALL FWLR PT 370, 1348

3. NWAIGE V OKERE (2008) ALL FWLR PT 431, 83

4. FAYOSE V. ICN (2014) ALL FWLR PT 730, 1347 @ 1386

The response of the Appellant’s learned Counsel was brief and I find it necessary to reproduce same verbatim anon:-“Reply to Preliminary Objection we submit that the grounds of appeal as distilled by the Appellant are simple in nature and they are not in any way vague as they are precise and we urge your Lordships to so hold.

The particulars of error are also precise and are direct statements of the decisions being attacked. The respondent/cross appellant never highlighted the errors complained of in his argument hence it is not the business of this honourable Court to be looking for the errors complained of as it is evident that the Preliminary objection is calculated to waste the time of your Lordships.

With due respect, your Lordships should treat the whole arguments in the preliminary objection as an academic exercise.” (page 1 of Appellant Reply/Cross Respondent’s brief of argument filed on the 21/12/16.

Order 6 Rule 2(3) of the Rules of this Court (Now Order 7 (3) of the 2016 Rules) provides as follows: “Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”

The case of KHALI V YARADUA gave judicial exposition to the provision of Order 7 (2) (3) as follows:
“….A ground of appeal must not be argumentative and narrative in compliance with the above rules. If it does so, it ceases to be a ground of appeal but an argument or narrative whose rightful place in a proceeding of a Court or Tribunal is at the hearing of the appeal. In no way should particulars be independent from the appeal itself but auxiliary to it. See OJE V EDE (1995) 3 NWLR PT 385-564 @ 584-585 AND CBN V OKOJI (2002) 8 NWLR PT 768 P 48 @ 61.

I have examined the grounds of appeal filed in this appeal and I find none of the feature highlighted in Order 7 Rule 2(3) in the said notice of appeal. Perhaps a little bit clumsy, but certainly not of the magnitude raised, or identified nor described in the KHALID V YARADUA’s case. This leg of objection therefore fails.

On the second leg of the objection the case of ORJI V STATE (2008) ALL FWLR PT. 422 P. 1093 was cited with emphasis with the dictum of Mukhtar JSC (AHTW) which stated that:

“Issues for determination are supposed to be distilled from the grounds of appeal filed by an appellant and not raised capriciously. They must not out number grounds of appeal…”

The Appellant who filed six grounds of appeal raised seven issues for determination in the Appellant’s brief of argument (pages 144-147 of the records).

Upon the authority of NWAIGE V OKERE (2008) ALL FWLR PT. 431; YADIS V GNIC AND FAYOSE V ICN (2014) FWLR PT. 730 P. 1347 @ 1368, the Respondent submits that issues one (1) and two (2) of the Appellants relate to ground one of the Notice of Appeal and ought to be struck out. Also, that issues 1, 2, 6 and 7 argued together at pages 4-6 of the brief are equally incompetent and ought to be struck out. The Respondent totally ignored this point.

It is true that the proliferations of issues are frowned at by the Apex Court and by this Court. In the case of OKONOBOR v. D.E & S.T. Co. LTD (2010) 17 NWLR pt. 1221, pg. 181, the Supreme Court per Onnoghen JSC (AHTW) conveyed the abhorrence of such practice in these terms:-

“It is settled that proliferation of issues is unacceptable in our Appellate Courts. While Counsel is permitted to formulate an issue out of a ground or grounds appeal, he cannot formulate two issues out a ground of appeal as in the instant appeal.”

It is instructive that neither the Appellant nor the Respondent/Cross-Appellant tied up the issues they each formulated to the grounds of appeal. As it stands, the issues not so tied to the ground of appeal ought to be struck out especially as the issues outnumber the grounds of appeal raised. (See MOZIE v. MBAMALU (2006) 15 NWLR pt.1003 466 per Tobi JSC).

The Court is always enjoined to do justice and except for serious and fundamentally disabling errors, the Court must seek to do justice at all times. The process of litigation is unnecessarily unending due to errors attributable to learned Counsel whose services are employed by litigants for want of the legal knowledge to represent themselves.

The straight forward and uncomplicated suit commenced in 2007, ten years ago in 2017!

I have taken the liberty of perusing the notice of appeal with a view to salvage whatever is worth determination in this appeal. I have found that all the grounds of appeal are actually mere repetition and the grounds replicate each other. I find fortification in the case of SANUSI v. AYOOLA (1992) NWLR Pt. 265, 275 where my Lord – KARIBI-WHYTE JSC, held that

“The essence of the formulation of issues is to reduce the grounds of appeal into terse, compact formulations which take cognizance and consideration of the same issues running through more than one ground of appeal.”

The trite issue in this appeal is actually whether the senior staff of the Appellant misrepresented facts to the Respondent and thereby induced him to part with a large sum of money in the hope of the write-off of his outstanding facility with the Appellant. Once this question is established or demolished, all the other issues will fall in line.

In the circumstance, I find the preliminary objection as lacking in merit and is hereby dismissed.

We shall now proceed to the main appeal which shall be addressed on the issues formulated by the Respondent/Cross-Appellant.

The brief of argument of the Appellant dated 26/10/16 was filed on the same date. The reply brief dated the 20/12/16 was filed on the 21/12/16.

The Respondent/Cross-Appellant’s brief was filed on 25/11/16.

Issues for determination:

The Appellant formulates 7 issues while the Respondent formulates 4 issues.

The issues distilled by the Respondent will be adopted for the determination of the appeal. The first issue –

(1) . Whether the trial Judge was right in relying on the evidence and the report of Amien Consultants in this matter. The Report was admitted in evidence as Exhibit 9

issue 4 as its whether there is any discrepancy between Exhibit 10 and 26 to warrant a finding by Court. This relates with issues 1, 2, 4 and 6 of the Appellant.

The Appellant derides and contends that the Amien Consultant’s report was already written and served on both Appellant and Respondent before the acclaimed waiver and concession to the Respondent. Appellant portends that the consultant is a third party and a total stranger in the proceedings. Appellant relied on the testimony of the PW1 and PW2 and DW1 to the effect that the report was not considered in the course of their negotiation. That the trial Court should have discountenance the report in its entirety.

Cites UBA v. Jargaba (2007) 11 SCM 169 to the effect that there is no privity of contract between the consultant and the Appellant.

Respondent on the other hand contends that the witness PW2 Prince Abioye Olatunji’s evidence is that of an expert and Exhibit 9 is the financial report which is important to this case. The effect of the report is the over charge of the Respondent to the tune of N5,250,000.00.

Respondent cites Azu v. State (1993) 6 NWLR pt. 299, 303 on the ground that expert evidence is always useful when required.

Who is an expert witness?

Section 57(2) of the Evidence Act 2004 describes an expert as a person specially skilled in any of the fields of foreign law, native law and custom, or of science or act, or in identifying handwriting or finger impression –

Section 57(a) of the Evidence Act has received several judicial expression by the Apex Court and by this Court (See Uwa Printers (Nig.) Limited v. Investment Trust Company Ltd. (1988) NWLR (Pt. 92) 110; (1988) 12 S. C. (Pt II) 31; Attorney-General of Oyo State & Anor v. Fairlakes Hotels Limited & Anor (No.2) (1989) NWLR (Pt. 121) 255; (1988) 12 S.C. (Pt. I) 1; Afribank Nig Plc v. Anunebunwa (2012) 4 NWLR @ 560 and Allied Bank Nig. Ltd v. Akubueze (1997) 6 NWLR @ 374).

Following these decisions, an expert witness can be said to be a witness.

“A witness who has knowledge beyond that of the ordinary lay person enabling him/her to give testimony regarding an issue that requires expertise to understand. Experts are allowed to give opinion testimony which a non-expert witness may be prohibited from testifying to in Court, the party offering the expert must lay a foundation from the expert’s credentials and experience that qualifies him/her as an expert. Sometimes the opposing party will stipulate (agree to) to the expert’s qualifications in the interests of judicial economy.

Experts are qualified according to a number of factors, including but not limited to, the number of years they have practiced in their respective field, works, certifications, licensing training, education, awards, and peer recognition. They may be called upon as consultants to a case and also used to give testimony at trial. Once listed as a witness for trial, the materials they rely upon in forming an opinion in the case is subject to discovery by the opposing parties. Experts in a wide variety of backgrounds may testify, such as construction, forensics, gemstones, and many more areas. They are allowed to be compensated for their time and expenses in preparing for and giving testimony, as long as they are not being paid to perjure themselves.” Culled from the web. Internet – 15/03/17.

In the case of OTUNBA F. E. SOWEMIMO ANOR VS. THE STATE (2004) 11 NWLR PT 885 P. 515 @ 532, Tobi JSC, referred to the case of WAMBAI V KANO NATIVE AUTHORITY (1965) NWLR 15, where it was held that:

“In certain cases, the evidence of opinion of an expert is relevant, but he must be called as a witness. He must also state his qualification and satisfy the Court that he is an expert on the subject in which he is to give his opinion and he must state clearly the reasons for his opinion.”

The witness PW2 clearly testified as an expert witness. In the case of Attorney-General of Oyo State & Anor v. Fairlakes Hotels Limited & Anor (No. 2) (1989) NWLR (Pt. 121) 255; (1988) 12 S.C. (Pt. I) 1 my Lord UWAIS, J.S.C (AHTW) stated that:

“It therefore follows that it is not sufficient to say that where a document written by an expert is tendered in evidence and that document or the testimony through which it is tendered, if unchallenged, then it must be acted upon. The document is certainly subject to scrutiny by the trial Court and its contents could, in the process of the scrutiny, be rejected if there is reason to do so, as was done in the present case by the learned trial Judge.”

From the foregoing, we can boldly say that PW2 Prince Abioye Olatunji is an expert, the next question is whether the evidence given by the PW2 is relevant and whether the Court was right to have relied on same. What is required of the Court is to subject to scrutiny the contents of the expert report (per Uwais JSC).

The trial Judge evaluated all the exhibits listed in the course of the trial. The witness called during the course of trial was PW2, Prince Abioye Olatunji, financial expert/consultant of Amien Consultants. His assignment is to cross check the Respondent’s banking transaction with the Appellant.

At the trial, the expert examined all statements of account, cheque books, tellers, debit notes and correspondences. All these documents were tendered and admitted as Exhibit 8, 8A-8J.

The learned trial Judge noted at page 107 of the record that the PW2 submitted a report after his work. And the report was admitted as Exhibit 9.

It is on record also at pg. 112, that the PW2 is a financial expert of Amien Consultants. He laid foundation to be a banking expert, gave his education, experience to be a fellow of Chartered Institute of Bankers in London, etc. the credentials to that effect was also tendered and admitted in evidence as Exhibits 24. The PW2 stated that all the exhibits highlighted were borne out of the services rendered to the Respondent in the course of his assignment. The witness reiterated that there was a need for the examination of the account of the Respondent and the transactions done on the Respondent’s account to ensure that they conform with the Central Bank regulations on monetary guidelines and banker’s tariff.

At the end of the exercise, the PW2 gave an expert opinion evidence with a report to the effect inter alia that he discovered an over charge of N2,223,274.50k on the account of the Respondent.

The PW2 laid a proper foundation to be an expert and supplied credentials to the effect. The financial report supplied is also germane to his credibility because such a report can be scrutinized by anyone interested. I think the opinion emanating therefrom is useful in the instant appeal.

The argument of the Appellant that the company of PW2, Amien Consultant does not have privity of contract with the Appellant, therefore his report should not be relied upon is a misconception. Expert witness recognized even by statute the Evidence Act.

On the test on relevance of expert opinion, the Courts have held that “in certain cases, the evidence of opinion of an expert is relevant, but he must be called as a witness. He must also state his qualification and satisfy the Court that he is an expert on the subject in which his is to give his opinion and he must state clearly the reasons for his opinion (See per Tobi JSC, Sowemimo v. The State (2004) 11 NWLR p. 532)”.

The witness having satisfied the above condition, his evidence is relevant and the Court is right to rely on it.

The trial Court at page 127 appraised the evidence supplied to the Court by PW1 and PW2 and discovered the details of the over-charge on the account of the Respondent and the evasion of the Appellant as regards the CBN monetary policy as reflected in the Exhibits 22-23 tendered in Court.

The Court came to the conclusion at page 129 that the over charge to the tune of N2,374,512.95k remains uncontroverted during the course of the trial. The Court was able to see also through the resistance and denial by the Appellant against the CBN policies and other allegations. The defence of the Appellant as to other CBN’s policies compliance was not substantiated with any documentary evidence which the Court could rely on. The Court was right to have followed the trite principle that he who asserts must prove its assertion. Since the Appellant claimed that there were other CBN policies followed and complied with and the denial of allegations without documents tendered in support, the fragile nature of their oral evidence was laid bare and which the trial Court rightly declined to believe.

While analyzing the importance of expert witness, where the Court is afforded the opportunity of expert evidence on matter pleaded and on which issue is joined, that the expert witness called PW2’s evidence remain uncontradicted as a result of failure to cross examine the witness or after the cross examination, the evidence still remains rigid and credibility remains untainted. The Court believed the evidence of PW2 and observed that: At page 130 held that:

“In the instant case, I am quite satisfied with the expert evidence of PW2 and I therefore believe him on this point. “For reasons unknown to this Court but best known to the defendant, this witness was neither challenged nor controverted on any of the items 1-13 which were clearly well stated in Exhibits 9 and 25.” that:

“The defence put up by the defendant through its witness DW1 was a complete denial of all the allegations made by the Claimant.”

The case of OBINECHE V. AKUSOBI (2010) 12 NWLR 383 held that the unchallenged and uncontroverted evidence is good material to be received and acted upon by a Court.

The Appellant raised issue on Exhibits 10 and 26 with the contention that there are discrepancies as difference of dates and what Mr. Bambe claimed to have written which was not fully evaluated by the Court which ought to decide it in one way or the other. That the difference in the testimony of PW1 and DW1 as regards the contents of the documents reveal discrepancies and the need for the Court to resolve it one way or the other but the lower Court failed and thereby occasioned a miscarriage of justice.

This issue was considered by the trial judge and was actually resolved at pages 109.

Exhibit 10 is the covering letter which the Respondent used in forwarding his cheque for 5.2million naira. Exhibit 26 on the other hand at page 118 is the original of the covering letter, (which states that cheque has been paid into the customer’s account to reduce indebtedness).

The Court drew inference from the two exhibits vis Exhibits 10 and Exhibit 26 and evaluated the exhibits with the testimonies of PW1 and DW1 as regards the contents thereof.

At Page 118 of the record, “The Court observed that the endorsement on the covering letter i.e Exhibits 26 which states “Cheque has been paid into the customer’s account to reduce indebtedness” was an internal endorsement. This above illustration was very clear and unequivocal and devoid of any discrepancy with Exhibit 10. It was said vide testimony that the Exhibit 26 was an internal endorsement. The Respondent was therefore not in a position to know of the internal working of the Respondent. He believed the two officers and placed faith in their effective representation of the Appellant that his payment was in final settlement of his debts.

Exhibit 10 is the covering letter that was used to forward in the cheque of 5.2million Naira to the Respondent. This was clear too. There is no discrepancy between the two exhibits to warrant the judge making any finding of thereon as it is a trite practice that Court only makes findings on material facts.

This Court does not lightly interfere with the finding of facts which are not perverse. In the case of DIKE OGU V AMADI (2008) 12 NWLR PAGE 650 it was held that: “Where it is not shown that the decision of the trial Court is perverse and has occasioned miscarriage of justice, it is not the practice of the appellate Court to interfere with findings of fact of trial Court ….”

Next is the contention on the headquarters:

The contention of the Appellant as regards the headquarters of the Respondent to be Ibadan/Lagos is raised. Their contention is in line with Paragraph 9 of the Respondent’s statement of claim and with Exhibits 1, 2 and 3. Appellant contends that the statement of claim of the respondent Paragraph 9 reveals that the head office of the Appellant is Lagos, likewise in page 3 of Exhibit 27, 1, 2 and 3 etc.

The respondent on the other hand maintains that it acted under instruction of negotiation with the respondent. Respondent in his brief of argument at page 7 narrated how in the course of negotiation he was instructed to go and negotiate with the Appellant’s officers.

It was on record that the Regional Director, Awe and one Mr. Bambe made the Respondent to believe that they are acting on behalf of the Appellant and at no time stated that their decision is subject to the approval of the office in Lagos.

The trial Court addressed the issue at page 110 – 112 of the records.

It was revealed from the testimony of the 1st Respondent witness Olalekan Lawal, Managing Director and Chief Executive Officer of Patkan Ventures Ltd that one IK, the account manager of the Respondent wrote to the Respondent as regards the problem of respondent’s account. The said letter was admitted as Exhibit 17.

Under cross examination, the witness at page 111 stated that he was not told that approval for the negotiated amount would come from Lagos. That he was made to understand that it would be done at the head office.

By the authority of ONAMADE V ACB (1997) 1 SCNJ 65 @ 83 the fact is that conduct which leads another to believe in a particular state of affairs to the detriment of that party will not be allowed to be resiled on. It was not revealed by the witness that the head office will do the final approval of the negotiation. The Respondent was misled into parting with his money instantaneously at the Ibadan office. Why should he now be referred to Lagos for the release of his title documents?

Was the Respondent directed to issue and pay the cheque at the headquarters in Lagos? – sounds like a drowning man holding on to a straw in a sunami! The Appellant must not be allowed to hide under the veil of head office to resile from its responsibility as acquired for it by its principal officers.

At page 117 of the records where under cross-examination, DW1 stated that PW1 came to the main office of the Appellant to ask for concession in respect of Respondent’s indebtedness and he stated that it is only Lagos that can allow concession. Nowhere was it stated by the Regional Manager that the Respondent needed to go to Lagos. Why did the Regional Manager not refer the Respondent to Lagos straight?

It is noted that according to Paragraph 9 of the statement of claim, Exhibits 1, 2, 3 and Exhibit 27, the Appellant knew that the Appellant’s head office is in Lagos. That fact was not shown to be an indicator that only the Lagos can re-negotiate the facility.

The authority of MMS Ltd. v. Oteju (2005) 14 NWLR pg. 543 is in point.

A party which failed to take advantage of his presence before a Court to argue its matter cannot turn around and raise an issue of fair hearing. Fair-hearing simply means giving equal opportunity to each party.

Edozie JSC “fair” hearing means a matter conducted according to all the legal rules formulated to ensure that justice is done to the parties in a case.  That has been clearly demonstrated done in this case. Both parties were each given a hearing at the trial Court.

To this end, issue 2 is resolved in favour of the Respondent.

CROSS APPEAL

It is the argument of the Cross Appellant that after having held that the account of the Respondent was not properly managed according to CBN regulations, the trial judge erred in not awarding the claim for N2.3million to the Respondent/Cross-Appellant.

The Cross-Respondent finds no justification for this claim.

The Court treated this at pg. 58-63 of the records and the discovery of the Respondent’s account that was wrongly debited to the tune of N2.3million naira.

At page 129 of the record, the Court failed to award the dissevered sum of N2.3million to the Respondent. Since the discovery came out from the testimony and supported by the pleadings and since it remains uncontroverted.

In Buhari v. Obasanjo (2005) 13 NWLR pg. 269. Edozie JSC “Where the evidence adduced by the Plaintiff is unchallenged, the Court still has the duty to evaluate the evidence adduced to see it if such is credible to sustain the claim.

Having seen that the evidence is credible, the Court is at liberty to award the refund. To this end, the Court was wrong not to have awarded the refund.

The Respondent/Cross Appellant called an expert who testified before the Court as PW2. PW2 qualified as an expert and he produced a report that was tendered in evidence as Exhibit 25. By the said report, the witness was able to show that the account of the Respondent was wrongly debited with sums of money totally N2.3Million. The witness at Pages 58-63 of the record gave a detailed account of how the wrong debits were arrived at. Curiously, the witness was not cross examined on his findings and the learned trial Judge had no difficulty in holding that the account of the Respondent was not properly managed in accordance with monetary policy guidelines of the CBN. This was very easy for the Court as the evidence of the witness went largely unchallenged. At page 129 of the record, the Court stated this;

“for reasons unknown to this Court but best known to the Defendant, this witness was neither challenged nor controverted on any of the items 1-13 which were clearly stated in Exhibits 9 and 25.”

With those stated findings above, the only duty of the Court was to have awarded the total amount of N2.3Million to the Respondent since it has been shown that his account was wrongly debited with the said sum. The reason of the Learned Trial Judge for not making the refund was that the Respondent did not make mention of this during his negotiations with Bambe and Awe. Neither did the Appellant raise the issue, the sum being in their custody.

However, the Respondent gave his reasons for not raising it at that time. It is difficult to fault the Respondent on this issue, bearing in mind that the Appellant has the control of the sum.

Further, the fact that he did not raise it at that time does not mean that the Court cannot award it, once an error occurs on the account of a customer, this can always be remedied at any time when it is discovered.

Evidence was placed at the trial Court by the expert witness that it was poor management of the Respondent’s account by the Appellant that compelled the Respondent to engage the services of the PW2, a financial and banking expert.

The Appellants took no steps to counter balance the report of the expert, but rather disclaimed him as a stranger. The Appellant must face the consequences of its choice of line of action.

The report reveal that the Respondent had the sum of N2.3 Million sitting in his account at Ibadan. No explanation was given to justify the presence for the said sum. It must be presumed to be an excess of the arbitrary charges made by the Appellant. The learned trial Judge had no facts upon which to decline to order the payment of the said sum over to the Respondent. The Respondent cannot be said to have waived any right as the right can always be claimed at any time. The Appellant ought to make a refund of the sum of N2.3 Million wrongly debited from the account of the Respondent.

That part of the decision of the learned trial Court is hereby set aside.

The Cross-Appeal succeeds.

The said sum of N2.3 Million shall be paid to the Respondent forthwith.

The main appeal fails and it is hereby dismissed as lacking in merit.

A cost of N50,000.00 is awarded to the Respondent and against the Appellant.

FASANMI, J.C.A.

I had the advantage of reading in advance the draft of the lead judgment of my learned brother Dongban-Mensem, JCA.

The issues in the appeal have been exhaustively dealt with. I agree with the reasoning and conclusion that the main appeal fails and the cross-appeal succeeds. I abide by the consequential orders contained therein inclusive of the order on cost.

IYIZOBA, J.C.A.

I read before now the judgment just delivered by my learned brother, MONICA B. DONGBAN MENSEM JCA. I agree and I abide by the consequential orders of my learned brother in the lead judgment.