Legal Nuggets (73): How to Prove Debt in Cases of Recovery of Debt Owed A Failed Bank.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

OLUWALOGBON MOTORS LTD. & ANOR. vs. NIGERIA DEPOSIT INSURANCE CORPORATION(2018)LPELR-46482(CA)

ISSUE: PROOF-How to prove debt in cases of recovery of debt owed a failed Bank

PRINCIPLE:
"It is also the complaint of Counsel for the Appellants that Exhibit P3 was not sufficient proof of the indebtedness of the Appellants to the Respondent as required in the case of Bilante Int'l Limited v. NDIC and other cases (supra). The position of law stated in the case is that statement of account alone tendered by a Bank in a claim for recovery of a debt allegedly owed by a customer, is not sufficient proof, without oral evidence, of the amount shown therein as the debt owed by the customer. In the case, the Bank; Orient Bank Limited which was later substituted with the NDIC, tendered the statement of account in "series 12" without any oral evidence to demonstrate how the debt was owed by the Appellant and it was held by the apex Court not to be sufficient proof of the sum claimed as debt owed by the Appellant on its account with the Bank. In the Appellants' case, it was the Respondent after the takeover of the defunct Metropolitan Merchant Limited as Liquidator, that filed the action for the recovery of the debt owed by the Appellants and not only put the Audit Report of the reconciled, reviewed and regularized account of the Appellants with the erstwhile Bank, but also called PW1, in particular, and PW2 to give oral evidence to demonstrate and show how the debt was owed by the Appellants. So unlike in the Bilante and other cases, the Respondent called oral evidence to support and in proof of the debt owed by the Appellants in sum claimed. Inspite of alleged omissions and discrepancies in Exhibit P3 as regards the sum claimed, which were explained by PW1 in evidence, Exhibit P3 was the only admissible evidence placed before the lower Court and found to be credible and sufficient proof of the said sum. In such a situation, where the evidence of a party on a fact in issue is the only legally admissible evidence before a trial Court and the evidence has not been effectively discredited under cross examination, it would clearly preponderate in support and proof of the fact and entitle the party to succeed on the balance of probabilities of the available evidence before the Court. Yesufu v. Adama (2010) 5 NWLR (1188) 522; FI & PDCN Limited v. EAS Limited (2006) ALL FWLR (341) 1332; Okorie v. Unakalamba (2013) LPELR-22508 (CA); Adelaja v. Alade (1992) 6 NWLR (245) 340; Dibiamaka v. Osakwe (1989) 1 ALL FWLR, 472. In the Appellants' case, the finding by the lower Court that Exhibit P3 is sufficient proof of the debt and sum owed by the Appellants to the Respondent is supported by the provisions of Section 6 of the FBFMB Act, cited in its judgement, which says that: - "In addition to any other primary source of evidence- (a) the examination reports and recommendations of the Central Bank of Nigeria or the Nigeria Deposit Insurance Corporation or their joint examination reports and recommendation; or (b) any report of the Central Bank of Nigeria or the Nigeria Deposit Insurance Corporation; or (c) the report of a person appointed by the Central Bank of Nigeria or the Nigeria Deposit Insurance Corporation (the Respondent herein), on the financial condition of a failed Bank (as in Metropolitan Bank) shall be sufficient proof that a loan or advance is owed to a failed bank and is due for recovery under this Act." (Underlining supplied). Although learned counsel for the Appellants has sought in this appeal to discredit the sum said to be owed by the Appellants as shown in Exhibit P3 by saying that the facilities granted to them were overdrafts upon which compound interest was charged, which was not agreed to by the parties, instead of simple interest, the offer letters for the facilities, expressly stated the rates of interest to be charged for them and all of them were freely agreed to and accepted by the Appellants. For instance, the initial offer letter dated the 4th November, 1997 for the sum of N30,000,000.00 was for a "Short Term Loan" at the pricing of 1% (all charges inclusive). All the subsequent letters of offer were in the same terms which were accepted and freely agreed to by the Appellants. The Appellants cannot now, seriously, be heard through counsel to contend that the rates of interest charged on the facilities were not agreed to by them or that the facilities were overdrafts and not loan since the law holds them firmly, bound by the terms and conditions of the facilities they voluntarily and freely agreed to and accepted in their agreement with the creditor. Jeric Nigeria Limited v. UBN Plc (2000) 15 NWLR (691) 447; Arjay Limited v. AMS Limited (2003) 7 NWLR (820) 577; NICON Hotels Limited v. Nene DC Limited (2007) 13 NWLR (1051) 237; Babatunde v. BON Limited (2011) 18 NWLR (1279) 738. An admitted debtor, like the Appellants, who benefitted from a loan/overdraft facility from a Bank owes and has both the legal and moral duty and obligation; express or implied, to repay his debt as and when due in his own interest otherwise he stands the risk of accumulation of interests thereon for as long as it remains unpaid. See NBN v. Shoyoye (1977) 5 SC, 181; Udofel Nigeria Limited v. Skye Bank Plc (2014) LPELR-22742; Afribank Limited v. Alade (2000) 13 NWLR (685) 591. Like I said before now, since Exhibit P3 was not effectively discredited under cross-examination of PW1 and PW2 at the trial, it was sufficient proof of the amount of debt owed by the Appellants to the Respondent on the balance of probabilities and preponderance of the evidence before the lower Court and that Court was right to have so held." Per GARBA, JCA.(Pp.17-22,Paras.D-B).

ISSUE: DUTY OF COUNSEL-Duty of Counsel as a minister in the temple of justice and an officer of the Court

PRINCIPLE:
"It is trite and settled that a counsel's duty and responsibility is first and foremost towards the profession, the Court and the society before his client. That is why lawyers are called ministers in the temple of justice. Their role is to assist the Court to arrive at the just or fair conclusion of the matter before Court. A counsel is to truly and really assist the Court and not to mislead it. See AGORO VS. AROMOLARAN & ANOR. (2011) LPELR-8906 (CA). The Court is a temple and not a shrine. What goes on there is justice. The aim and focus of all participants or "worshipers" in the temple of justice is justice. Therefore either as litigants, Court or counsel, everyone should be interested in doing justice. In OKPE VS. FAN MILK PLC & ANOR. (2016) LPELR-42562 (SC) 31, the Supreme Court held: "Furthermore, interest of justice connotes such interests, aspirations and or attempts to achieve justice in a given case or situation. The whole goal is the achievement of justice. Justice is fair and proper administration of laws whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principles of the law and evidence under consideration which as of right, entitle the successful party to judgment. That perhaps, is why they now say that justice is a three-way traffic. Justice to the plaintiff/appellant. Justice to the defendant/respondent and justice to the Court itself. The last one of course requires that parties to a legal tussle or their representatives should always come to Court with open mind, sincerity of purpose, diligent and coherent with unwavering confidence that the Court will at the end, deliver justice according to law." Why all this, one may ask? In my opinion, for counsel to submit that the interest charged by the bank on the transaction is not agreed upon by the parties, to say the least is misleading. It is clear from the evidence before the lower Court that the offer letter and subsequent documents state the interest rate to be charged. This was accepted by the Appellant. To now make an issue of that beats my imagination. Since the parties to the contract agreed as to the interest to be charged, it is too late in the day to challenge it. The law is trite, which is, parties are bound by the terms of their contract. See A.G. FERRERO & CO. LTD. VS. HENKEL CHEMICALS (NIG.) LTD. (2011) 13 NWLR (PT. 1265) 592. Counsel in conducting their client's case should be duly guided by their role aspect outlined in the Rules of Professional Conduct and by a cloud of cases." Per EBIOWEI, JCA.(Pp.25-28,Paras.E-B)