(2018) LPELR-43792(CA)

Transcription

1 ALHAJI HASSAN BELLO & SONS LTD & ANOR v. ZENITH BANK CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto ON FRIDAY, 2ND FEBRUARY, 2018 Suit No: CA/S/87/2015 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO Before Their Lordships: Between 1. ALHAJI HASSAN BELLO & SONS LTD 2. ALHAJI HASSAN BELLO And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal ZENITH BANK PLC - Respondent(s) RATIO DECIDENDI - Appellant(s)

2 1. BANKING LAW - INTEREST ON OVERDRAFT: When interest on overdraft is chargeable "Parties are ad idem as to the tenor of the loan facility as clearly stated in Exhibit P2 to be twelve (12) months. Where there is a fixed expiry date for an overdraft, the agreed interest rate will only be applicable from the date the agreement came into effect up to the date the facility expired as the indebtedness cannot be treated as an overdraft after the expiry date. Thus, what the bank will be entitled to after the debt has become due is damages for breach and it is also not open to Court to award the applicable interest rate per annum to cover from the day the overdraft facilities became due up to the day of judgment of the Court. SeeUBA V. LAWAL (2008) 38 WRN 66 at 73 and INTERGRATED DIMENSIONAL SYSTEMS LTD V. AFRICA INTERNATIONAL BANK LTD (2002) 4 NWLR (Pt. 758) 660. Also in SANI ABACHA FOUNDATION FOR PEACE & UNITY V. UBA PLC (2010) 17 NWLR (Pt. 1221) 192 at , the Supreme Court has held that interest must not only be pleaded but also strictly proved. Thus, where interest is being claimed as a matter of right, the facts of that entitlement must be pleaded by the claimant followed by evidence to establish same. It is only when the Court is satisfied after reviewing the pleadings and evidence that it may award same."per SHUAIBU, J.C.A. (Pp , Paras. B-B) - read in context 2. EVIDENCE - ADMISSION/ADMITTED FACT(S): The principles pertaining to admission "The provision of Section 123 of the Evidence Act, 2011 provide as follows: - "123 No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agent agree to admit at the hearing, or which, before the hearing they agree to admit by any writing under by any rule or pleading in force at the time they are deemed to have admitted by their pleadings." Therefore, any averment in a pleading that has been admitted in opponent's pleading requires no further proof. See UBA V. JARGABA (2002) 2 NWLR (Pt. 750) 200, A.G FEDERATION V. AJAYI (2009) 12 NWLR (Pt. 682) 509, COBRA LTD V. OMOLE ESTATE & INV. LTD (2000) 5 NWLR (Pt. 655) 29 EJEM V. OFIA (2000) 7 NWLR (Pt. 666) 662 and OKPOSIN V. ASSAM (2005) 14 NWLR (Pt. 945) 495. However, where in spite of the admission as in the instant case, the party in whose favour the admission is made decides to lead evidence in support thereof, such oral evidence must be strictly in agreement with admitted pleading. And if the evidence led is superfluous or unnecessary because the fact in issue has been admitted by a party's opponent, all that the Court has to do is to ignore it, hence this alone will not affect the initial admission in the statement of defence. In the present case, the respondent had in spite of the appellants' admission in their paragraph 1 of the amended statement of defence, went further to tender the statement of accounts, Exhibits P In N.N.P.C V. KLIFCO (NIG) LTD (2011) ALL FWLR (Pt. 583) 1875, the Supreme Court, Per Rhodes - Vivour, JSC, held thus: - "The interpretation of Section 75 of the Evidence Act is that where both parties have agreed on a fact in issue, no further proof of such fact is necessary as it is no longer an issue between them... The proviso gives power to the Court to require that a fact be proven even though it was admitted. The proviso gives a wide discretion to judges where facts are admitted to still insist on proof by credible and sufficient evidence."per SHUAIBU, J.C.A. (Pp , Paras. A-E) - read in context

3 3. EVIDENCE - PROOF: How to claim a sum of money on the basis of the overall debit balance of a statement of account "I have stated that in prove of her claims for the principal sum and the accrued interests, the respondent had also relied on bank statement of the 1st appellant. The law is that any bank which is claiming a sum of money on the basis of overall debit balance of a statement of account must adduce both documentary and oral evidence explaining clearly the entries therein particularly where as in the instant case the debt is constituted largely by interest charges to show how the overall debit balance was arrived. See HADYER TRADING MANUFACTURING LTD V. TROPICAL COMMERCIAL BANK PLC (2013) LPELR Also in BIEZAN EXCLUSIVE GUEST HOUSE LTD V. UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR (Pt. 246) 246 at 286 this Court has held that a statement of account is not sufficient explanation of debts and lodgments. Therefore, evidence needs be adduced on its contents because interest charges and other charges are not liquidate, there should be a break down, an analysis of how much of the debt is interest to enable the Court appreciate what is before it without having to do private calculation, an exercise which the law disapproves. In an earlier decision in the case of HIMMA MERCHANTS LTD V. ALIYU (1994) 5 NWLR (Pt. 347) 667 at 676, the Supreme Court was emphatic in holding that the best method of satisfying a Court about the existence of the ground for the award of interest is by adducing credible, sufficient and satisfactory evidence about it. Thus, interest must be specifically pleaded and proved. In the present case, there is no evidence to explain the basis upon which the interest was arrived at and in the absence of credible evidence justifying the claim, the Court is not entitled to act blindly by granting the interest as claimed. Mindful of the trite position of the law that pleaded facts without evidence in amplification go to no issue, learned trial judge rightly found in my view that the allegations of over charges was resolved in favour of the appellants. Consequently, the Court subtracted the amount termed over charged from the entire claim and arrived at the outstanding credit balance of N19,548, However, learned appellants' counsel further contended that the amount of N19, 548, awarded as judgment sums still formed part of the unproven sums of N22, 995, I have held elsewhere in this judgment that the 1st appellant's statement of account, Exhibit P1, 2-27 was merely dumped on the trial Court without relating the figures contained therein. In other words, PW1 through whom Exhibit P1, 2-27 was tendered did not bother to demonstrate the Exhibit. And the Court as an arbiter must not get into the arena and engage itself in doing a case for one party to the disadvantage of the other party."per SHUAIBU, J.C.A. (Pp , Paras. E-A) - read in context

4 4. EVIDENCE - ADMISSION AGAINST INTEREST: Effect of an admission by a party against his interest; when will an admission against interest be valid in favour of the adverse party "Even though, the respondent's entitlement to the judgment sum in this case was dependent upon the facts pleaded and strictly proved, the appellants have nonetheless admitted indebtedness which the learned trial judge considered as an admission against interest. While cross - examined, DW1 said: "I agree before close of banking transaction on 31/7/2006, the 1st Defendant has a debit balance of N11, 734, and there was a debit/withdrawal of N16, 200, leaving a credit minus N4, 465, that is in debt of the amount. It is true, there is another withdrawal on same 31/7/2006 in favour of Dangote Sugar Plc... As at 7/8/2006, 1st Defendant paid N21,193,500 only."?also in Exhibit P11, the appellants' Solicitor, H. N. Nonso, Esq. of Akpatre O. Nkanor & Co. caused a letter dated 17th August, 2012 requesting respondent for interest waiver of N3,440, Notwithstanding the fact that the said waiver was never granted by the respondent, the learned trial judge deducted same in coming up with the outstanding credit balance of N19, 548, against the appellants. Where a party or his witness, while giving oral evidence makes an admission that is contrary to that party's pleading, such an admission, even if allowed in the trial Court goes to no issue and should be ignored when the Court is writing its judgment. This is so because evidence which is led on unpleaded facts goes to no issue and cannot form the basis of any judgment. See OGBUOKWELU V. UMEANAFUNKWA (1994) 4 NWLR (Pt. 341) 676 at 712. However, either party can led evidence on a fact pleaded by his opponent and in which case, such admission is admissible and should be given its full weight. Similarly, an admission by a counsel of a party to a civil case, if relevant, is admissible against the interest of such party. In EBOADE V. ATOMESIN (1997) 5 NWLR (Pt. 506) 490, it was held that admission of counsel in a civil case or during the actual progress of litigation, is evidence against his client in that proceedings. In the instant case, issue of the appellants' indebtedness was pleaded and clearly joined, their Solicitors have also admitted the appellants' indebtedness. The foundation upon which the learned trial judge based his decision was the appellants/counsel admission against interest where he stated at page 116 of the record of appeal thus: - "Flowing from the above, it becomes imperative for me to make reference only and particularly to Exhibit P11 (1-3), this Exhibit is central to the determination of this case because therein the learned Defendants counsel had analyzed in clear terms the wrong charges and or unnecessary charges which imply were admitted by the plaintiff... Consequently, the allegations of over charge will go against the plaintiff in coming to the conclusion of this judgment."?i therefore, cannot fault the reasoning of the learned trial judge in entering judgment in favour of the respondent based on admission against interest and also resolving the issue of over charge in favour of the appellants."per SHUAIBU, J.C.A. (Pp , Paras. B-A) - read in context

5 MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Sokoto State coram D. B. Sambo, J. in Suit No. SS/62/2012 delivered on the 11/9/2014, granting the reliefs of the plaintiff and dismissing the Defendants counter claim. The plaintiff claimed against the Defendants jointly and severally as follows: - 1. The sum of N22,995, (Twenty Two Million, Nine Hundred and Ninety Five Thousand Six Hundred and Ninety One Naira Forty Five Kobo) being the outstanding indebtedness of the Defendants to the plaintiff and or the principal monies and the accrued interest due to the plaintiff from the 1st Defendant and which payments was guaranteed by the 2nd Defendant arising from the overdraft facility extended to the 1st Defendant and which sums have remained unpaid till date notwithstanding repeated demands % interest rate on the sums of N22,995, (Twenty Two Million, Nine Hundred and Ninety Five Thousand Six Hundred and Ninety One Naira Forty Five Kobo) from the 14th of July, 2007 till final liquidation of the judgment sums % 1

6 Court interest on the sums of N22,995, (Twenty Two Million, Nine Hundred and Ninety Five Thousand Six Hundred and Ninety One Naira Forty Five Kobo) until the final liquidation thereof. 4. Cost of this action. 5. Such further or other orders as this Honourable Court may deem fit to make in the circumstances. ALTERNATIVELY 6. The sums of N22,995, (Twenty Two Million, Nine Hundred and Ninety Five Thousand Six Hundred and Ninety One Naira Forty Five Kobo) against the 2nd Defendant being the sums of monies guaranteed by the 2nd Defendant arising from the overdraft facility extended to the 1st Defendant and which monies the 1st Defendant had refused and neglected to pay notwithstanding repeated demands. 7. Against the 2nd Defendant, 35% interest rate in the sum of N22,995, (Twenty Two Million, Nine Hundred and Ninety Five Thousand Six Hundred and Ninety One Naira Forty Five Kobo) from the 14th of July, 2007 till the final liquidation of the judgment sums being the principal monies and accrued interest of the overdraft facility extended to the 1st Defendant by the plaintiff % Court interest on the sums of 2

7 N22,995, (Twenty Two Million, Nine Hundred and Ninety Five Thousand Six Hundred and Ninety One Naira Forty Five Kobo) until the final liquidation thereof. 9. Cost of this action. Upon service of the originating processes on the Defendants, they denied the claim and thereafter counter claimed against the plaintiff thus: 1. An order that the defendants property/collateral mentioned in the letter dated July, 14, 2006 (Supra) and handed over to the plaintiff as security i.e. property situate at Hassan Bello Business Plaza, Sokoto Furniture Road, Off Abdullahi Fodio Road, Sokoto, covered by certificate of occupancy No. 546, together with the original copy of the said certificate of occupancy in the plaintiff s possession, be discharged/released to the defendants with immediate effect, since the said facility had since been fully redeemed/repaid by the defendants together with all the charges and interest accrued therefrom since on 7/8/06 but which security/collaterals were still wrongly retained/held back by the plaintiff. 2. An order that the sum of N16,000, debited from the defendants Accounts on 3

8 31/07/06 and N645, also debited on 08/08/06 totaling N16, 845, were not founded on the credit facility of N5,000, (Supra) and not on any other credit facility known to the defendants and not also at the instance of the defendants and should be refunded to the defendants with immediate effect. 3. An order that the sum of N6,000,000.00, N9,000,000.00, N3,650,000.00, N1,400,000.00, N3,013, and N645, credited into the defendants account respectively on 3/8/06, 3/8/06, 3/8/06, 4/8/06, 4/8/06 and on 8/8/06 but wrongly debited and confiscated by the plaintiff for no just cause, be refunded back to the defendants with immediate effect. 4. An order that the sum of N25,188, paid/credited into the defendant Account between 26/04/07 7/1/08 and the N6,685, paid in respectively on 20/7/10 (N3, 700,000.00), 13/8/10 (N1,000,000.00); 19/8/10 (N1, 985,000.00), but wrongly confiscated by be plaintiff for no just cause, be refunded back to the defendant with immediate effect. 5. An order that the sum of N3,440, be refunded back to the defendants which was wrongly debited and over charged from the defendants Account 4

9 and admitted/confirmed by the defendants counsel Barr. Shade Atanda (Supra) as thus: (a) Over charged/interest =N2, 522, (b) COT overcharge =N22, (c) Over Charged Management Fee =N895, An order that the sum N391, wrongly debited from the defendant Account by the plaintiff as COT Charges between 31/1/07 30/9/09, even after a letter dated 22/9/05 was written to the defendants by the plaintiff informing the defendants of plaintiffs approval of COT of o/mille charge on the defendant s Account from 22/9/ An order that the sum of N895, and N5,000, totaling N5, 895, wrongly debited from the defendants Account between 30/11/06 and 31/3/09 by the plaintiff as management fee and processing fee, be refunded back to the defendants. 8. All the total monetary claims by the defendants against the plaintiff as counter claim in paragraphs 2 7 above are totalled N74,054, N1,000, damages for hardship caused on the defendants % interest per annum on N74,054, from 7/8/06 to the date of judgment % on judgment 5

10 sum from the date of judgment to the date final payment of judgment sum. 12. Cost. Parties filed and exchanged pleadings. At the hearing both parties called witnesses and tendered documentary exhibits and at the conclusion of which counsel for both sides filed and adopted their respective final addresses. In a reserved and considered judgment delivered on 11/9/2014, learned trial Judge entered judgment in favour of the plaintiff in the sum of N19, 548, k (Nineteen Million, Five Hundred and Forty Eight Thousand, Eight Hundred and Sixty Nine Naira Eighty Two Kobo only) after deducting the excess charges and being the outstanding indebtedness arising from the overdraft facility granted to the Defendants in He dismissed the counter claim as lacking in merit. Dissatisfied, Defendants (now appellants) filed this appeal on 15/9/2014 through a notice of appeal containing six grounds of appeal. The appellants notice of appeal was subsequently amended via a motion granted on 15/7/2016 but deemed on 26/9/2016. The amended notice of appeal contains seven grounds of appeal. From the said seven amended grounds of appeal 6

11 learned appellants counsel formulated four issues as follows: 1. Whether there was any sufficient evidence adduced by the respondent before the lower Court to support the judgment of the lower Court (Distilled from ground 1) 2. Whether there was no error in law where the lower Court entered judgment to the tune of N19, 548, in favour of the plaintiff/respondent without any prove of indebtedness. (Distilled from ground 5) 3. Whether there was no miscarriage of justice where the lower Court entered judgment in favour of the plaintiff/respondent on a claim where both indebtedness, claimed interests and other charges were lumped together without specific/detailed claim or prove of how much is the unpaid debt and how much is the interest or other charges (Distilled from ground 6). 4. Whether the appellants counter claim lacked merit? (Distilled from ground 7). Learned counsel for the respondent formulated two issue for the determination of the appeal and they are as follows: 1. Was the decision of the Court below in granting all the reliefs of the respondent correct in law? 2. Was the decision of the 7

12 Court below in dismissing the counter claims of the appellants correct in law? I have carefully gone through the submissions of counsel on both sides as well as the contents of the record of appeal. It is however my view that the appellants issues Nos. 1 and 4 are wide enough to accommodate all the remaining issues. I shall therefore adopt the appellants issues Nos. 1 and 4 in determining this appeal. Let me quickly point out that no issue was formulated from grounds 2, 3 and 4 of the appellants amended grounds of appeal. They are accordingly abandoned and struck out without much ado. On issue No.1, learned appellants counsel A. O. Nkanor, Esq. submitted that the onus was on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the remedy he claims. Thus, entering judgment in favour of the respondent herein in the absence of prove of the appellants indebtedness amount to speculation by the trial Court. In aid, he relied on the evidence of PWs 1 3 and the statement of account, Exhibit P1 (2 3) which clearly shows that the appellants had between 31/7/2006 and 8

13 11/8/2006 paid a total of N18, 183, to the respondent even before the expiration of the tenor of the loan facility. Still in argument, learned counsel submitted that notwithstanding the failure of the respondent to respond to Exhibit P11, the trial Court suo motu based its judgment on Exhibit P11 and thus the trial Court descended into the arena and made out a case for the respondent. He referred to ELIAS V. OMOBARE (1982) 5 SC 25 at 46 49, ACB V. NNAMANI (1991) 4 NWLR (Pt. 186) 498 and OLUFEAGBA V. ABDUR-RAHEEM (2009) 17 MJSC 165 at 175. He submitted further that claims of interest are recipe of special damages which the respondent must specifically plead and strictly prove but unfortunately the respondent neither pleads nor led evidence on the alleged accrued interest on over draft facility. He referred tobenjamin V. BUSINESS VENTURES LTD (2000) 2 SCNQR 61 at 62, DANIEL HOLDINGS V. UBA PLC (2005) 11 MJSC 69 at 72 and NGILARI V. MOTHERCAT LTD (1999) 13 NWLR (Pt. 636) 626. Learned respondent s counsel, Ibrahim Abdullahi has referred to the averments in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 19 and 21 of the amendment 9

14 statement of claims as well as the averments in paragraph 1 of the amended statement of defence in contending that the appellants have admitted indebtedness as claimed by the respondent. He therefore submitted that facts admitted requires no further proof. In aid he referred to the cases of AGBANELO V. UNION BANK OF NIGERIA LTD (2000) 4 SC (Pt. 1) 233, ABIOYE V. LAWAL (2007) ALL FWLR (Pt. 350) 1376 at 1385 and KIMDEY V. GOV. GONGOLA STATE (1988) 5 SCNJ 281. It was also the contention of the respondent that Exhibits P1, (2 27) is a document being relied upon by both the respondent and appellants in prove of the main claim and the counter claim and therefore, the principle that the respondent can only rely on the strength of her evidence not the weakness of the defence is inapplicable in the circumstances. On the appellants contention that they have liquidated the entire sums in favour of the respondent, learned counsel submitted that the appellants could not have been in debit of N527, as at 7/8/2006 while at the same time admitting in Exhibit P11 that as at 17th August, 2012 there was an outstanding balance of 10

15 N2,992, excluding interest in which they requested for interest waiver. He relied on EKE V. FRN (2013) ALL FWLR (Pt. 702) 1748 at 1804 in submitting that documents when tendered and admitted in Courts are like words uttered and do speak for themselves. They are even more reliable and authentic than words. In effect, they remain permanent and indelible through ages. Finally, on the alternative reliefs, learned counsel referred to Exhibit 5 to contend that the 2nd appellant had guaranteed to pay the principal sums of N5,000, together with all interest, commissions, discount and other bank charges and thereby liable both for the principal reliefs as well as the alternative reliefs. He urge the Court to resolve this issue in favour of the respondent and against the appellants. The main contention here is not on the grant of the loan facility by the respondent to the appellants but the dispute arose on the repayment of the loan as well as the accrued interest thereof. While the appellants claimed that they have long repaid the loan, the respondent maintained that the loan and the accrued interest totaling N22,995, remain unpaid in spite 11

16 of repeated demands. Thus, issues regarding the liquidation or otherwise of the loan facility was properly joined. In paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 19 and 21 of the further amended statement of claims, at pages of the supplementary record of appeal, the respondent as plaintiff before the trial Court avers as follows: 1. The Plaintiff is a Banking Institution within the financial sub- sector in Nigeria, a Public Liability Company incorporated under the laws of the Federal Republic of Nigeria with Branches across Nigeria including No. 15, Kano Road Sokoto within the Jurisdiction of this Honorable Court. 2. The 1st Defendant is a Limited Liability Company incorporated under the Laws of the Federal Republic of Nigeria and having its office at No.6 Hassan Bello Business Complex, Ahmadu Bello way Sokoto within the jurisdiction of this Honorable Court. 3. The 2nd Defendant is the Managing Director of the 1st Defendant and the guarantor to the overdraft facility extended to the 1st defendant and resides within the jurisdiction of this Honorable Court. 4. The Plaintiff avers that the 1st Defendant vide an 12

17 application, requested the Plaintiff to extend to it an overdraft facility of N5,000,000:00 (Five Million Naira Only) sometimes in the year The Plaintiff states that the purpose for which the overdraft facility of N5,000,000:00 (Five Million Naira only) was sought for by the 1st Defendant from the Plaintiff was to augment working capital requirements of the 1st Defendant. 6. The Plaintiff avers that after due consideration given to the application of the 1st Defendant of which the 2nd Defendant was its Managing Director, the Plaintiff on the 4th of July 2006, approved the credit facility to the 1st Defendant. The letter of the Plaintiff dated the 14th of July 2006 conveying the approval of the overdraft facility and or credit facility of N5,000,000:00 (Five Million Naira Only) to the 1st Defendant shall be relied upon at the trial of this suit and same is hereby pleaded. Notice is hereby given to the Defendants to produce its original at the trial of this suit. 7. The plaintiff avers that the 1st Defendant vide a letter dated 18th of July 2006, communicated to the Plaintiff through its branch office at No. 15, Kano Road Sokoto of 1st 13

18 Defendant acceptance of the overdraft facility and or credit facility. The said letter is hereby pleaded and same shall be relied upon at the trial of this suit. 8. The Plaintiff avers that the overdraft facility and or credit facility was for a term or tenure of 12 (Twelve) Months. 9. The Plaintiff avers that it was agreed by the defendants and the Plaintiff that the interest rate as at the time the offer was made stood at 19% per annum but subject to upward or downward review in line with money market realities. 10. The Plaintiff states that interest rate was equally subject to upward review and such review shall be for information of the 1st Defendant only and will be deemed accepted. 11. The Plaintiff states that all the terms and conditions stated in the offer of credit facility of N5,000,000:00 (Five Million Naira Only) to the 1st Defendant vide the letter of offer of the Plaintiff dated the 14th of July 2006 were all accepted by the defendants. 19. The Plaintiff states that on the basis of the terms contained in the letter of offer of the overdraft and or credit facility of N5,000,000:00 (Five Million Naira Only) to the 1st 14

19 Defendant by the Plaintiff, the Plaintiff reviewed its interest rates effective from the 1st of April A copy of the letter communicating the review of the Plaintiff interest rates and acknowledged by the 2nd Defendant dated the 31st of March 2008, shall be founded, and relied upon at the trial of this suit and same is hereby pleaded. Notice is hereby given to the defendants to produce its original at the trial of this suit. Same is hereby pleaded. 21. The Plaintiff avers that it wrote severally to the Defendants for them to liquidate the principal sums and the accrued interest in favor of the Plaintiff but the defendants neglected and or refused to do same. The said letters of demand are hereby pleaded particularly the letter dated the 27th of October Same is hereby pleaded and notice is hereby given to the defendants to produce their original at the trial of this suit. The appellants in paragraph 1 of the amended statement of defence admitted the said averments in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 21 of the statement of claim. And based on that admission, the respondent argued that no further proof is required to 15

20 establish her entitlement to the amount claimed. The provision of Section 123 of the Evidence Act, 2011 provide as follows: No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agent agree to admit at the hearing, or which, before the hearing they agree to admit by any writing under by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. Therefore, any averment in a pleading that has been admitted in opponent s pleading requires no further proof. See UBA V. JARGABA (2002) 2 NWLR (Pt. 750) 200, A.G FEDERATION V. AJAYI (2009) 12 NWLR (Pt. 682) 509, COBRA LTD V. OMOLE ESTATE & INV. LTD (2000) 5 NWLR (Pt. 655) 29 EJEM V. OFIA (2000) 7 NWLR (Pt. 666) 662 and OKPOSIN V. ASSAM (2005) 14 NWLR (Pt. 945) 495. However, where in spite of the admission as in the instant case, the party in whose favour the admission is made decides to lead evidence in support thereof, such oral evidence must be strictly in agreement with admitted pleading. And if the evidence led is superfluous or unnecessary because the fact in issue has been admitted by a 16

21 party s opponent, all that the Court has to do is to ignore it, hence this alone will not affect the initial admission in the statement of defence. In the present case, the respondent had in spite of the appellants admission in their paragraph 1 of the amended statement of defence, went further to tender the statement of accounts, Exhibits P In N.N.P.C V. KLIFCO (NIG) LTD (2011) ALL FWLR (Pt. 583) 1875, the Supreme Court, Per Rhodes Vivour, JSC, held thus: - The interpretation of Section 75 of the Evidence Act is that where both parties have agreed on a fact in issue, no further proof of such fact is necessary as it is no longer an issue between them. The proviso gives power to the Court to require that a fact be proven even though it was admitted. The proviso gives a wide discretion to judges where facts are admitted to still insist on proof by credible and sufficient evidence. I have stated that in prove of her claims for the principal sum and the accrued interests, the respondent had also relied on bank statement of the 1st appellant. The law is that any bank which is claiming a sum of 17

22 money on the basis of overall debit balance of a statement of account must adduce both documentary and oral evidence explaining clearly the entries therein particularly where as in the instant case the debt is constituted largely by interest charges to show how the overall debit balance was arrived. See HADYER TRADING MANUFACTURING LTD V. TROPICAL COMMERCIAL BANK PLC (2013) LPELR Also in BIEZAN EXCLUSIVE GUEST HOUSE LTD V. UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR (Pt. 246) 246 at 286 this Court has held that a statement of account is not sufficient explanation of debts and lodgments. Therefore, evidence needs be adduced on its contents because interest charges and other charges are not liquidate, there should be a break down, an analysis of how much of the debt is interest to enable the Court appreciate what is before it without having to do private calculation, an exercise which the law disapproves. In an earlier decision in the case of HIMMA MERCHANTS LTD V. ALIYU (1994) 5 NWLR (Pt. 347) 667 at 676, the Supreme Court was emphatic in holding that the best method of satisfying a Court about the existence of the ground for the award of 18

23 interest is by adducing credible, sufficient and satisfactory evidence about it. Thus, interest must be specifically pleaded and proved. In the present case, there is no evidence to explain the basis upon which the interest was arrived at and in the absence of credible evidence justifying the claim, the Court is not entitled to act blindly by granting the interest as claimed. Mindful of the trite position of the law that pleaded facts without evidence in amplification go to no issue, learned trial judge rightly found in my view that the allegations of over charges was resolved in favour of the appellants. Consequently, the Court subtracted the amount termed over charged from the entire claim and arrived at the outstanding credit balance of N19,548, However, learned appellants counsel further contended that the amount of N19, 548, awarded as judgment sums still formed part of the unproven sums of N22, 995, I have held elsewhere in this judgment that the 1st appellant s statement of account, Exhibit P1, 2 27 was merely dumped on the trial Court without relating the figures contained therein. In other 19

24 words, PW1 through whom Exhibit P1, 2 27 was tendered did not bother to demonstrate the Exhibit. And the Court as an arbiter must not get into the arena and engage itself in doing a case for one party to the disadvantage of the other party. Parties are ad idem as to the tenor of the loan facility as clearly stated in Exhibit P2 to be twelve (12) months. Where there is a fixed expiry date for an overdraft, the agreed interest rate will only be applicable from the date the agreement came into effect up to the date the facility expired as the indebtedness cannot be treated as an overdraft after the expiry date. Thus, what the bank will be entitled to after the debt has become due is damages for breach and it is also not open to Court to award the applicable interest rate per annum to cover from the day the overdraft facilities became due up to the day of judgment of the Court. SeeUBA V. LAWAL (2008) 38 WRN 66 at 73 and INTERGRATED DIMENSIONAL SYSTEMS LTD V. AFRICA INTERNATIONAL BANK LTD (2002) 4 NWLR (Pt. 758) 660. Also in SANI ABACHA FOUNDATION FOR PEACE & UNITY V. UBA PLC (2010) 17 NWLR (Pt. 1221) 192 at , the Supreme 20

25 Court has held that interest must not only be pleaded but also strictly proved. Thus, where interest is being claimed as a matter of right, the facts of that entitlement must be pleaded by the claimant followed by evidence to establish same. It is only when the Court is satisfied after reviewing the pleadings and evidence that it may award same. Even though, the respondent s entitlement to the judgment sum in this case was dependent upon the facts pleaded and strictly proved, the appellants have nonetheless admitted indebtedness which the learned trial judge considered as an admission against interest. While cross examined, DW1 said: I agree before close of banking transaction on 31/7/2006, the 1st Defendant has a debit balance of N11, 734, and there was a debit/withdrawal of N16, 200, leaving a credit minus N4, 465, that is in debt of the amount. It is true, there is another withdrawal on same 31/7/2006 in favour of Dangote Sugar Plc. As at 7/8/2006, 1st Defendant paid N21,193,500 only. Also in Exhibit P11, the appellants Solicitor, H. N. Nonso, Esq. 21

26 of Akpatre O. Nkanor & Co. caused a letter dated 17th August, 2012 requesting respondent for interest waiver of N3,440, Notwithstanding the fact that the said waiver was never granted by the respondent, the learned trial judge deducted same in coming up with the outstanding credit balance of N19, 548, against the appellants. Where a party or his witness, while giving oral evidence makes an admission that is contrary to that party s pleading, such an admission, even if allowed in the trial Court goes to no issue and should be ignored when the Court is writing its judgment. This is so because evidence which is led on unpleaded facts goes to no issue and cannot form the basis of any judgment. See OGBUOKWELU V. UMEANAFUNKWA (1994) 4 NWLR (Pt. 341) 676 at 712. However, either party can led evidence on a fact pleaded by his opponent and in which case, such admission is admissible and should be given its full weight. Similarly, an admission by a counsel of a party to a civil case, if relevant, is admissible against the interest of such party. In EBOADE V. ATOMESIN (1997) 5 NWLR (Pt. 506) 490, it was held that admission of counsel 22

27 in a civil case or during the actual progress of litigation, is evidence against his client in that proceedings. In the instant case, issue of the appellants indebtedness was pleaded and clearly joined, their Solicitors have also admitted the appellants indebtedness. The foundation upon which the learned trial judge based his decision was the appellants/counsel admission against interest where he stated at page 116 of the record of appeal thus: - Flowing from the above, it becomes imperative for me to make reference only and particularly to Exhibit P11 (1 3), this Exhibit is central to the determination of this case because therein the learned Defendants counsel had analyzed in clear terms the wrong charges and or unnecessary charges which imply were admitted by the plaintiff Consequently, the allegations of over charge will go against the plaintiff in coming to the conclusion of this judgment. I therefore, cannot fault the reasoning of the learned trial judge in entering judgment in favour of the respondent based on admission against interest and also resolving the issue of over 23

28 charge in favour of the appellants. In the circumstance, issue 1 is resolved against the appellants. Issue No.2 dealing with appellant counter - claim was anchored on the appellants claim that they have since 7/8/2006 repaid the overdraft of N5,000, together with the accrued interest of 19%. I have restated the legal position that bank cannot charge interest after the expiration of the term of the facility. In the instant case and even from the appellants own evidence, there is no such prove. In other words, the evidence did not establish the appellants entitlement to the claims in their counter claim to the effect that the overdraft was liquidated. In actual sense, both the appellants and their counsel admitted indebtedness and thereby appealing to the respondent for interest waiver. The appellants cannot be allowed to approbate and reprobate at the same time. Issue No.2 is also resolved against the appellants. On the totality of the foregoing, one must hold that the learned trial judge was right in coming to the conclusion that the existence of Exhibit P11 (1 3) has closed any claims in 24

29 favour of the appellants and that the evidence of the 2nd appellant as DW1 under cross examination clearly favours the respondent. This appeal therefore fails and is hereby dismissed. Parties to bear their respective costs. HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of previewing the judgment of my learned brother M. L. Shuaibu, JCA. I agree with the reasons therein for the conclusion that the appeal lacks merit and should be dismissed. I hereby dismiss the appeal and adopt to the orders made in the judgment. FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in agreement with his reasoning and conclusions dismissing this Appeal as lacking in merit. I abide by the consequential orders made thereto. 25

30 Appearances: C. B. Sarkin Noma with him, L. E. Ewemonye For Appellant(s) Ibrahim Abdullahi with him, V. R. Omoba For Respondent(s)