➥ CASE SUMMARY OF:
Mr. Folorunsho Ogboja v. Access Bank Plc (CA/AK/38/2013, 18 MAY 2015)
by Branham Chima.
➥ ISSUES RAISED
Banking guidelines;
Evaluation of evidence.
➥ CASE FACT/HISTORY
The Appellant was a customer of the respondent Commercial Bank who duly applied for overdraft facilities from the Respondent, completed the acceptance forms though the forms had modifications from the previous ones, but they were in any case signed Appellant paid all the principal sums and interest as in the signed forms of agreement; but defaulted on the principal facilities and interest for a whole year in respect of the renewed facility on the ground that it was fraudulently signed/induced as he was not brought into the picture of the changed conditions on terms thereof. The Debt mounted and in interest and charges.
The Appellant sued for, inter alia: ‘A DECLARATION that the defendant cannot unilatera0lly increase or charge above the rates of interest agreed upon by the parties which were 22.5% per annum on facilities granted between 14/08/07 and 27/12/07 and 23% per annum on facilities on 12/1/09 without the consent of the plaintiff.’
This is an appeal against the decision of the High Court of Justice Ondo State sitting in Akure delivered on the 5th December, 2012 wherein it entered Judgment against the Plaintiff and in favour of the Defendant/Counter Claimant in terms of the Defendant’s counter claim.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the charges in the letters of offer between the plaintiff and the defendant superseded the charges in the Central Bank of Nigeria guide to Banks and therefore not mandatory for the respondent to follow?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE BANKS ARE BOUND BY THE GUIDELINES OF THE CENTRAL BANK WHERE NO DISCRETION IS STATED
‘There is no doubt that the charging of interest or fixing of the same and its rate on advances, loans, credit facilities or deposits are regulated by S.15 of the Banking Act that Mandates the Central Bank of Nigeria to so regulate those by the issuance of Guidelines on Minimum and Maximum of interest. In this wise, such rates or charges fixed within that law is binding and those outside in excess thereof is wrongful and indeed unenforceable in law and equity. This will be so where the Banking Act or Regulations and Guidelines do not allow any discretion in the fixture by an agreement of the parties. See Union Bank of Nigeria Plc v. Alhaji Adams Ajabule (2011) 18 NWLR 1278 page 12 @ 186 par. F-G. The Guides and Regulations of the Central Bank are therefore not merely white wash icings on the cake but they are binding laws for observance by the Banks interse, and as may be applicable in contracts to be entered into with their customers or clients see Sec. 60(1)(2) and S.64 of the Banks and other Financial Institutions Act (BOFIA). Exhibits 6, 7 and 10, i.e. the Letters of offer clearly appreciated this fact when it stipulated clearly that: “This offer is subject to the availability of funds and to the rules and regulations as may be stipulated from time to time by the Central Bank of Nigeria.” Paragraph 9(ii) of Exhibit 6 – the first letter of offer provides as follows: “ALL CBN rules and regulations are to be strictly complied with and adhered to.” S.60(2)(a) of BOFIA provides that “every person or institution carrying on such financial business as are referred to in Section 56 of this Act shall: (a) comply with the monetary policy guidelines and other directives as the Bank may from time to time specify. From the above, it is beyond dispute that the Banking Act, Rules and Regulations and Guidelines are laws; and are binding and every violation thereto is prohibited.’
APPELLANT CANNOT ACQUIESCE TO RATE HIGHER THAN THAT SET BY THE CENTRAL BANK
‘His complaint is that the amount of interest charged is beyond the rate fixed by the Central Bank Regulations, which as I stated earlier is binding between the parties. The Appellant cannot be taken to have consented or accepted the rates charged on the facility hence his protest, upon discovery. That he had not acted in bad faith, is shown by his repayment efforts, until the discovery of the illegality in excess charges. The Appellant cannot waive a public duty or obligation on the Respondent as relating to the range of the rate of Bank interest as may be charged. He cannot acquiesce to any non-observance or compliance, thereto. He cannot do that, even by their agreement as any such agreement will be against public policy and indeed unenforceable in law. See Ariori’s case 1988 1 SC 1.’
THE GUIDELINES WERE PLEADED AND PROVED
‘The documents, Exhibit 6, 7 and 10 speak for themselves clearly that the Banking Regulations and Guidelines issued by the Central Bank of Nigeria shall apply. The said Guidelines and Regulations were tendered as Exhibit 2, 3, 4 and 5 and un-opposed. Non-compliance with those Guidelines and Regulations as relating the charges or rates had been pleaded and testified to. The demonstration of the non-compliance was done by evidence led and the tender of Exhibit 1 which at its page 3 thereof disputes the interest computation as made. Exhibit “5” being the prudential Guidelines for bank charges, etc was also tendered and admitted in evidence. In the face of the documentary evidence led, it is obvious that the documents speak for themselves. Oral evidence was not permissible to vary, add or take from the contents of the documents. See N.I.D.B. v. Olalomi Industries Ltd (2002) 5 NWLR (Pt. 761) 532. The contract between the parties in this appeal no doubt, is subject to the terms of the contract and the Banking Law and BOFIA, which makes the Central Bank Guidelines and Regulations obligatory. See Ignobis Hotel Ltd v. Bentec Elect. Ltd 2015 1 NWLR (Pt. 1441) 504. See also Chikwendu Ogbonna v. Olasunkanmi Ade CA/L/133/08 delivered on 20th July, 2011.’
‘The differential that comes up as the excess unlawful charges in interest rate, etc had been established at the trial court. The Guidelines and Regulations had been sufficiently pleaded and relied upon. Expunging them as was done, by the trial court on the ground that they were not pleaded is wrongful. On the whole, the Appellant had proved that there existed the Central Bank Regulations and Guidelines and that the agreement between the parties envisaged strict compliance with it; and that there had been a violation of which made the Appellant not bound to pay the differential in excess charges established; and the Respondent, in corollary, is not entitled to enforce such interest rate if any is charged.’]
.
.
II. Whether the Regulations and Guidelines of the CBN must be specifically pleaded before they could be admitted?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE DOCUMENT SATISFIED BEING PLEADED
‘The law is that the Guidelines of the CBN, being matters encapsulated in a document, it is sufficient that the facts or effect of such document is pleaded. Once pleaded, the requirement of reference to it in reliance would have been met. In the same, the content of the said document must not be pleaded specifically before evidence of its content can be led. It is, therefore sufficient if the facts relating to such a document is pleaded; and if it is relevant to the case, the document is admissible in law. See Tangale v. Fawu (2001) 17 NWLR (Pt. 742) page 293 @ 302-303.’
‘By paragraphs 17, 23, 27, 28, 31, 32, 33 and 34 of the Amended statement of claim filed by the Appellant on the 28th September, 2012 at page 16-20 of the record, the Central Bank of Nigeria Guidelines and Regulations had been alluded to. They were tendered as Exhibit 3, 4 and 5 amongst others. These Regulations need not be specifically pleaded to be admissible. They are bye laws or subsidiary legislations. The court must take Judicial Notice of them. U.B.N. PLC v. Ajabule (2011) 18 NWLR (Pt. 1278) page 152 @ 186 paragraph F-G and Union Bank of Nig. v. Ozigi (1994) 3 NWLR (Pt. 333) pg.3. Exhibit 1 tendered by the Appellant also made reference to those documents admitted as Exhibits 5. The said Exhibits ought not to have been expunged by the trial Judge. It must be pointed out in agreement with the Appellant’s learned Counsel, that facts in respect of the Exhibits having been pleaded; those documents were relevant and ought to have been admitted in interest of Justice.’]
.
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III. Whether the Defendant/Respondent adduced credible evidence in support of the counter claim?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE COUNTERCLAIM WAS NOT PROVED
‘In his counter claim, the learned counsel for the Defendant/counter claimant relied on Exhibit 12 and said the best evidence of repayment of indebtedness was for the plaintiff to tender the Bank Tellers showing payments. This he argued the plaintiff/Appellant did not do. The trial Judge bought this argument. With respect, that is wrong. As I had indicated earlier, a counter claim is a distinct action. He who alleges must prove. The burden of proving this indebtedness is on the counter claimant/Respondent. See Ogundele v. Ogiri (2010) ALL FWLR (Pt. 507) page 1 @ 25; also reported as Ogundele v. Agiri (2009) 18 NWLR (Pt. 1173) 219. Merely rendering Exhibit 12, without evidence in elucidation to show demonstratively how the sum indicated as debit and claimed was arrived at was not such act that could be referred to as proof of the counter claim. The Evidence of the DW1 in Chief and in Cross Examination never proved the amount claimed. Merely pleading an amount without a supporting evidence was not sufficient. Indeed, the claim lay bare and prostrate, as it were. The basis of the counter-claim is predicated on the alleged non-payment of interests and other charges as contested by the Appellant. The Appellant had proved the differential in charges made which were subject to the C.B.N. Regulations, Guidelines and Rules made pursuant to the banking Act and BOFIA.’]
.
.
IV. Whether the Appellant was able to prove the excess charges and the allegation of the manipulation of his Account beyond reasonable doubt to entitle to the reliefs sought?
RESOLUTION: IN APPELLANT’S FAVOUR.
[‘From the resolution of Issue No. 1 and 3 it is obvious that the 1st part of this issue relating to proof of the excess charges must be answered in the positive. Furthermore the trial court itself had disallowed the charges for N30,000.00 for availment fees and ordered that Appellant was entitled to refund in that respect, and held that the complaint on excess charges succeeded partially. There is no Cross/Appeal against this finding by the Respondent. The finding subsists in law, until set aside. As to the manipulation of the Appellant’s account, this is an allegation of fraud. This entails an imputation of fraud or joggling or alteration of account. This is an allegation that must be proved by he that so alleges, see Ogundele v. Ogiri (supra), Rilwan and Partners v. Skye Bank Plc (2015) 1 NWLR (Pt. 1440) 437 (supra). By S.139 of the Evidence Act 2011 and on the authority of the case of State v. Njoku (2010) ALL FWLR (Pt. 523) 1924 @ 1945 (2010) 1 NWLR (Pt. 1175) 243, the standard of proof is that beyond reasonable doubt. See also Rilwan and Partners v. Skye Bank (supra). The averments were not however, without evidence in support. The court was bound to act on them, as there was evidence led. Contrary to the position in Yashe v. Umar (2003) 13 NWLR (Pt. 838), where the pleadings were deemed abandoned; in this case on appeal, there was proof beyond reasonable doubt of the partial manipulation of the Appellant’s account. It was such that entitled him to the reliefs sought to the extent of the total of the excess Bank rate charges and N30,000.00 being availment fees as adjudged by the trial court.’]
.
.
V. Whether the trial court properly evaluated the parties evidence before the court?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE EVIDENCE WAS NOT PROPERLY EVALUATED BY THE TRIAL JUDGE
‘It is obvious from the evidence led that the trial court did not evaluate the evidence led before arriving at its decision. The agreements – Exhibits 6, 7 and 10 were tendered by the parties. Exhibits 3, 4 and 5 which were Central Bank of Nigeria Regulations, Rules and Guidelines issued as circulars pursuant to the Central Bank of Nigeria Act 2004 and S.60(2)(a) of BOFIA which regulations were incorporated by reference into Exhibits 6, 7 and 10 were expunged on the spurious ground of non-pleadings. If these evidence had been properly evaluated, the conclusion arrived at would have been different. The DW1 – the sole witness of Respondent gave evidence that could not rebut the Plaintiff/Appellant’s case as put up by oral evidence and documentary evidence. There was no rebutting evidence to Exhibit 1 as Exhibit 12 was dumped on the court and was not scrutinised by the court and yet relied on to found liability against the Appellant. As relating to the counter-claim, the trial court did not scrutinise or evaluate the evidence in chief nor the answers in Cross-Examination to arrive at a decision. This independent action which must be proved on its merit simply placed reliance on the statement of Account – Exhibit 12 which was not proved nor testified to and evaluated. I agree with the Appellant that the mere tender of a Bank Statement of Account without more, is not sufficient. See IEZAN EXCLUSIVE GUEST HOUSE v. UHS and L. LTD; HNB LTD (2004) 15 NWLR (Pt. 896) page 408 @ 412 ratio 6.’]
.
.
.
✓ DECISION:
‘Having resolved all the issues in favour of the Appellant, this appeal is allowed. Consequentially the Judgment of the Ondo State High Court in Suit No. AK/31/2010 delivered on the 5th December, 2012 as adversely affecting the Appellant is set aside and all reliefs and consequential orders granted therein are also quashed. In place thereof, I, pursuant to Section 15 of the Court of Appeal Act 2004, allow the Appellant/Plaintiff’s claim and dismiss the counter-claim thereto as unproved at the trial court. Costs of N50,000.00 only is awarded in favour of Appellant/and against the Respondent.’
➥ FURTHER DICTA:
⦿ COURT OF APPEAL SHOULD CONSIDER ALL ISSUES
It is trite law that an appeal court must consider all issues for determination raised before it except where it is of the view that a consideration of one or more issues is enough to dispose of the appeal. In such a situation, the court may adopt such issues as may dispose of the appeal and may not be bound to consider all the other Issues he considers irrelevant and unnecessary. — M.A. Danjuma JCA.
⦿ COURT WILL TAKE JUDICIAL NOTICE OF BANKING GUIDELINES
Indeed, the Rules, regulations and guidelines may be pleaded and where they are not pleaded, the courts may take Judicial Notice of same. See S. 73-75 Evidence Act, 2011 and the Government of Lagos State v. Pastor Karimu and others (2012) 5 NWLR (Pt. 1294) page 620. — M.A. Danjuma JCA.
⦿ A COUNTERCLAIM IS A SEPARATE AND DISTINCT ACTION
A counter-claim is a separate, independent and a distinct action. The counter-claimant must prove his claim before he can obtain Judgment. See JERIC NIG. LTD v. UNION LPELR SC 72/1998; (2000) 15 NWLR (Pt. 691) 447; R. Benkay Nig. Ltd. v. Cadbury (Nig) PLC (2006) 6 NWLR (Pt. 576) 338s. — M.A. Danjuma JCA.
➥ PARTIES:
⦿ APPELLANT(S)
Folorunsho Ogboja
⦿ RESPONDENT(S)
Access Bank Plc
➥ LEAD JUDGEMENT DELIVERED BY:
Mohammed Ambi-Usi Danjuma, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A.A. Ojopagogo, Esq.
⦿ FOR THE RESPONDENT(S)
Tunde Adeoye, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
