Legalpedia Citation: (2024-01) Legalpedia 59527 (CA)

In the Court of Appeal

Holden At Calabar

Fri Jan 5, 2024

Suit Number: CA/C/06/2020

CORAM

Hamma Akawu Barka Justice, Court of Appeal

Balkisu Bello Aliyu Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

CHIEF VICTOR IYANAM

APPELLANTS

1. UNITED BANK OF AFRICA PLC
2. PUNCH (NIG) LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, BANKING, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Respondents made a publication of the list of loan defaulters of the bank on the pages of the newspaper of the 2nd respondent wherein the name of the appellant appeared as No. 26 with a debt of N11,605,566.40k.

The appellant who sued for defamation of character and name based on the publication made by the respondents. It was in the process of responding to the suit of the appellant that the 1st respondent made a counter-claim of the debt it alleged that the appellant is owing, which necessitated the publication of his name among the loan defaulters.

At the end of the trial, the lower Court dismissed the appellant’s claim and entered judgment in favour of the 1st respondent in the sum of N13,299,023.40 being the appellant’s unpaid loan plus interest and N100,000.00 as cost of the action.

The appellant was displeased with the judgment and has challenged hence the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether upon rejecting the Statement of Account sought to be tendered by the 1st Respondent pursuant to Section 84 of the Evidence Act, 2011, there was any valid evidence with which the learned trial Judge could have come to the decision that the Appellant was indebted to the 1st Respondent?
2. Whether there was any evidence before the learned trial Judge enabling him to arrive at a decision whether the Plaintiff/Appellant received the amount of money claimed as owing to the 1st Respondent or at all?
3. Whether the failure of the 1st Respondent to be definite on the issue of whether the vehicle, the subject matter of the loan was a Toyota Camry Car or a Toyota Hiace Bus was not fatal to the integrity of the transaction it so desperately relied upon?

RATIONES DECIDENDI

ISSUES FOR DETERMINATION – CONDUCT OF PARTIES IN FORMULATING ISSUES FOR DETERMINATION

I think it is necessary for counsel to know that no award is given for formulating your own issues. It is prudent to adopt the issues formulated by an appellant where they cover the field and reflect what is necessary to determine the appeal instead of changing the language of the issues just to have the feeling that something has been done, when the substance is still the same. – Per P. C. Obiorah, JCA

RESPONDENT – DUTY OF A RESPONDENT WHO IS NOT SATISFIED WITH THE JUDGMENT OR ANY PART OF THE JUDGMENT OF A COURT

A respondent who is not satisfied with the judgment or any part of the judgment of a Court is expected to file a cross appeal or respondent’s notice against that aspect of the judgment that he is not pleased with it.

In the absence of any cross-appeal or respondent’s notice, the traditional role of the respondents remains to defend the judgment on appeal and show why the appeal against the judgment should be dismissed. The respondents who did not file any cross-appeal or respondent’s notice, be seen as asking this Court to reverse any decision of the lower Court. See Zakirai v. Muhammad & Ors (2017) LPELR-42349(SC), Odekanle & Anor v. Eboda & Ors (2019) LPELR-48531(CA), Nsirim v. Amadi (2016) 5 NWLR (Pt. 1504) 42, Peter Obi v. INEC (2007) 11 NWLR (Pt. 1046) 560 and INEC v. Danja & Ors (2019) LPELR-49625(CA). – Per P. C. Obiorah, JCA

 

APPEAL – WHERE A FINDING OF A COURT IS NOT CHALLENGED ON APPEAL

While it is not the duty of a respondent to tell an appellant what areas in a judgment to challenge, but it is trite law that any finding of facts by a Court which is not challenged on appeal is an acceptance of the correctness of the finding and decision by the lower Court which is conclusive and binding on the party. This is the clear holding of the Supreme Court in Iyoho v. Effiong & Anor (2007) LPELR-1580 (SC) (Pp. 25 paras. A), where Oguntade, JSC, stated that:

“It is settled law that a decision of the Court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding.”

Furthermore, in Ugo v. Ugo (2017) LPELR-44809(SC) (Pp. 17 paras. A-A), Eko, JSC held thus-

“At the risk of repetition, a decision of the Court not appealed or challenged is deemed to be acceptable to and binding on the parties. See IYOHO v. EFFIONG (supra), BIARIKO v. OGWUILE (supra).”

See also Dabup v. Kolo (1993) 12 SCNJ 1, FBN Plc v. Ozokwere (2013) LPELR-21897(SC) and Chinda v. Owhonda & Ors (2022) LPELR-56589(CA). – Per P. C. Obiorah, JCA

JUSTIFICATION – MEANING AND IMPLICATION OF THE DEFENCE OF JUSTIFICATION

At this point, I need to ask myself what is the meaning and implication of the defence of justification to a claim of libel? The Supreme Court provided the answer in the case of Iloabachie v. Iloabachie (2005) LPELR-1492(SC) at pages 44-45 paras. G, where Akintan, JSC held that:

“One of the defences available to a defendant in an action for libel is that of justification. It is therefore a complete defence to an action for libel or slander that the defamatory imputation is true. The truth of the imputation is an answer to the action because the law presumes that the plaintiff has no right to a character free from that imputation if he has no right to it. He cannot in justice recover damages for the loss of it. He is not entitled to benefit from the loss of a reputation he is not entitled to and as such the allegation in a defence that the words complained are true is therefore called a plea of justification. A defence of justification is therefore a complete bar to any relief sought by a party who complains of defamation.”

Shun of any legalese, the defence of justification where successfully raised and upheld by the Court means, in simple terms, that the alleged defamatory statement is true and exonerates the defendant from any liability. See Iwuoha v Okoroike (1996) 2 NWLR (Pt. 429) 231@ 252, Peretu v. Harvey Global Communications Ltd & Anor ​ (2017) LPELR-45199(CA), Alhaji M. K. Gujba v. First Bank of Nigeria Plc & Anor (2011) LPELR-8971(CA), Registered Trustees of Amorc v. Awoniyi (1991) 3 NWLR (Pt. 178) 245 at 257, Stanbic IBTC Bank v. Longterm Global Capital Ltd & Ors (2021) LPELR-55610(CA), Din v. African Newspapers of Nigeria Ltd (1990) 3 NWLR (Pt. 139) 392, Onyejike v. Anyasor (1992) 1 NWLR (Pt. 218) 437 and Lana v. University of Ibadan (1987) 4 NWLR (Pt. 64) 245. – Per P. C. Obiorah, JCA

COUNTER CLAIM – WHETHER THE DISMISSAL OF A CLAIM IPSO FACTO MEANS THE COUNTER CLAIM WILL SUCCEED

I have no doubt in my mind that the dismissal of the claim of the appellant does not ipso facto mean that the counter-claim will succeed. The 1st respondent who made a counter-claim still has the duty to establish her entitlement to the reliefs sought in the counter claim. However, the fact remains that in conducting a trial in a case where there is both a claim and counter-claim, the parties lead evidence in establishing their claim or counter-claim, and at the same time, defend themselves. It follows that the evidence that enabled the respondents to defend themselves against the charge of defamation will necessarily be part of the evidence to support their counter-claim. – Per P. C. Obiorah, JCA

RECOVERY OF DEBT – WHETHER THE DEBTOR’S STATEMENT OF ACCOUNT MUST BE TENDERED IN EVERY ACTION FOR RECOVERY OF DEBT – THE ESSENCE OF A STATEMENT OF ACCOUNT IN AN ACTION FOR RECOVERY OF DEBT

As was held by Georgewill, JCA in Okpu v. Trust Bond Mortgage Bank Plc (2021) LPELR-54554(CA) (Pp. 31-32 paras. E – C):

“Thus, it cannot be the law as vehemently contended by the learned counsel for the Appellant that, in all cases of action for recovery of debt by a creditor, the debtor’s Statement of Account must be tendered and that failure to do so would be fatal. Rather, once a debtor admits, as the Appellant admitted, that the creditor did advanced to him the money, the subject matter of the debt recovery action, the debtor’s Statement of Account is not a sine qua non for finding of liability against the debtor. Thus, in law, with or without any admission of debt and/or presence or absence of a Statement of Account, once a creditor leads sufficient credible evidence in proof of the indebtedness of the debtor on a balance of probabilities or preponderance of evidence as required of him by law, he will succeed notwithstanding whether he tendered the debtor’s Statement of Account in evidence or not or whether the debtor admitted his indebtedness or not.”

I am in agreement with the above statement of the law. This position is as a result of the settled law that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. The law expects the 1st respondent who is claiming that the appellant is indebted to her to adduce both documentary and oral evidence explaining how the debt arose and how the overall debit balance was arrived. This is expected to be done through an official who is familiar with the accounts. See Bilante International Ltd v. Nigerian Deposit Insurance Corporation (2011) 15 NWLR (Pt. 1270) 407, Nagebu Company (Nig.) Ltd v. Unity Bank Plc (2014) 7 NWLR (Pt 1405) 42, First Bank of Nigeria Plc v. Management Education and Training Ltd (2019) LPELR 47502(CA) and Union Bank of Nigeria Ltd v. Tenosys Global Konnect Ltd (2020) LPELR 47936(CA). – Per P. C. Obiorah, JCA

STATEMENT OF ACCOUNT – WHEN IT BECOMES MANDATORY TO TENDER A STATEMENT OF ACCOUNT IN AN ACTION FOR RECOVERY OF DEBT

The principle of law that it is mandatory to tender a statement of account coupled with credible oral evidence linking the statement with the actual payments made, showing what was owed, what was paid, what is outstanding and how the outstanding sum was arrived at is correct when the party, in this instance the 1st respondent is relying on the statement of account to support his claim for unpaid debt or loan. See Bilante International Ltd v. NDIC (2011) 6 SCNJ 481 and Ifemesia v. ECOBANK (2018) LPELR-46589(CA). – Per P. C. Obiorah, JCA

 

STATUTE BAR – THE EFFECT OF A CASE BEING STATUTE BARRED

When a case is challenged on the ground that it is statute barred what the party raising the objection is saying is that even if the facts constituting the cause of action is taken as true, the right to enforce the cause of action has been extinguished by operation of law and unmaintainable in a Court of law. See Sosan v. Ademuyiwa (1986) 3 NWLR (Pt.27) 241. – Per P. C. Obiorah, JCA

BURDEN OF PROOF – THE BURDEN OF PROOF IN CIVIL MATTERS

…this is a civil case and the burden of proof is not static but oscillates between the parties depending on the positive assertions made by them. The standard of proof being on balance of probabilities. See Sections 132, 133 and 136 of the Evidence Act, 2011. – Per P. C. Obiorah, JCA

CASES CITED

STATUTES REFERRED TO

1. Evidence Act, 2011

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