The Respondent applied for overdraft facilities, from the Appellant. He paid all the principal sums and interest as agreed, and subsequently, renewed the facility. He defaulted in the repayment of the renewed facility, and the debt accrued via interest and charges. Subsequently, the Respondent instituted an action against the Appellant claiming that the interest and charges made by the Appellant on the facilities, were outside the agreed rate and illegal. He sought, inter alia, a declaration that the said interest and charges were illegal, null and void, and an order of court directing the Appellant to refund the excess charges deducted from his account. He also sought damages for breach of contract.
The Appellant filed its Amended Statement of Defence and Counter-claim, by which it counter-claimed for the sum of N1,729,938.84 as the outstanding indebtedness of the Respondent, as well as pre-judgement and post judgement interest. The Appellant also sought an order of court, directing the sale of the Respondent’s property pledged as collateral for the facility. At the conclusion of trial, the court delivered judgement in favour of the Appellant, and granted all the reliefs sought in the Counter-claim. Aggrieved, the Respondent appealed to the Court of Appeal which allowed the appeal, set aside the judgement of the trial court and dismissed the counter-claim. The Appellant, who was dissatisfied with the outcome of the appeal, lodged a further appeal to the Supreme Court.
Issue for Determination
In resolving the appeal, the Supreme Court considered the following four issues:
1. Whether Rules, Guidelines and Regulations made by the Central Bank of Nigeria (CBN) are part of the laws which the courts must take judicial notice of.
2. Whether the Respondent’s mere reference without particulars to CBN Rules, Guidelines and Regulation, dispenses with the requirement of the law that documents to be tendered at trial must be specifically pleaded.
3.Whether the Appellant is entitled to judgement on its Counter-claim, based on the evidence it adduced to support the Counter-claim at trial.
4. Whether the Court of Appeal’s award of general damages against the Appellant is in line with the rules on pleadings, evidence and judicial authorities.
On the first issue, counsel for the Appellant argued that it is only the National Assembly that has the constitutional powers to make laws. He submitted that the Rules, Guidelines and Regulations made by the CBN cannot be regarded as laws made by the National Assembly so as to enable courts take judicial notice of them, and having not pleaded the rate as stipulated by the CBN, the trial court was right to have discountenanced the CBN Guidelines and Regulations relied on by the Respondent, as it was in consonance with the decision of the Court of Appeal in CHIDUME OKORO v IKECHI OKORO (2009) All FWLR (Pt. 489) 480 that courts cannot take judicial notice of such Guidelines and Regulations, without evidence in support. In reaction, counsel for the Respondent argued that the decision in Chidume’s case (Supra), in fact, supported the Respondent’s position that the court ought to take judicial notice of the extant CBN Guidelines, and when given its literal meaning, the decision is to the effect that the court is bound to take judicial notice of the bank rate issued by the CBN in circulars, as long as there is evidence of it. He contended that although there was no obligation on the Respondent to specifically plead the bank rate approved by the CBN, the Respondent pleaded sufficient facts on the bank rates as approved under the CBN Guidelines.
Arguing the second issue, counsel for the Appellant submitted that for a document to be admissible, even though it need not be pleaded, facts relating to such documents must be specifically pleaded with particularity by any of the parties in their pleadings, and it must also be relevant to the case before the court. He submitted that the Respondent’s pleading was devoid of the facts and particulars, necessary to make the CBN Guidelines admissible. Reacting to the submission above, counsel for the Respondent reiterated that he pleaded facts relating to the documents in his pleadings and did specifically make reference to the CBN Monetary Policy that was in force during the contract between the parties, because it detailed the appropriate guidelines and rates that the Appellant was to charge.
With respect to the third issue, counsel for the Appellant submitted that sufficient evidence was led to substantiate the Appellant’s Counterclaim, and the trial court was right to have granted the Counterclaim, having regard to the evidence of the Appellant’s sole witness which was not impeached during cross-examination. He urged the Apex Court to set aside the judgement of the Court of Appeal, and restore the decision of the trial court on the Counterclaim. Contrariwise, counsel for the Respondent argued that the Appellant had a duty under Section 51 of the Evidence Act 2011 to further lead credible evidence in support of the statement of account tendered through its sole witness, and ought not to merely tender same as proof of its claim. He submitted that the Appellant failed to prove its Counterclaim, as the Appellant’s sole witness did not provide evidence as to how the overall balance in the Respondent’s statement of account was arrived at, and how the interest rates were calculated.
On the fourth issue, counsel for the Appellant argued that the Court of Appeal wrongly awarded the Respondent damages of in the sum of N5 million as the alleged damage was not pleaded, and no evidence was adduced by the Respondent to show what loss or injury the Respondent sustained as a result of the Appellant’s action. He submitted that the award of damages by the Court of Appeal is not in line with the law of pleadings and the rule in evidence; therefore, the award was a nullity. He relied on FEDERAL MORTGAGE FINANCE LTD v HOPE EFFIONG EKPO (2005) All FWLR (Pt. 248) 1669-1670. Responding to the submission, counsel for the Respondent argued that the grant of general damages is at the discretion of the court, and it flows from the wrong complained of and need not be specifically proved; the Respondent is therefore, not required to prove the award of damages. He contended furthermore that the Court of Appeal considered the claims of the Respondent at the trial court, and believed that the sum of N5million damages flowed from the breach of contract committed by the Appellant when it exerted illegal charges on Respondent’s account, thereby negatively impugning the operation of the account.
Court’s Judgement and Rationale
Resolving the first issue, the court referred to the provisions of Section 122(2) of the Evidence Act, 2011 that the court shall take judicial notice of all laws and enactments and any subsidiary legislation made under them having the force of the law now or previously in force in any part of Nigeria. The court quoted the provisions of Sections 33 and 57 of the BOFIA (as amended) and Section 51 of the CBN Act, which empowers the CBN to make Rules, Regulations and issue Guidelines to any person or institution under its supervision, and held that from these provisions, it is clear that the Central Bank of Nigeria has the statutory clout to make Rules, Regulations and Guidelines with regard to monetary policy and control of the banking industry. The Rules, Regulations and Guidelines of the Central Bank of Nigeria made pursuant to the Central Bank Act and the BOFIA constitute subsidiary legislation, for which the court shall take judicial notice of within the meaning of Section 122(2) of the Evidence Act 2011, without any further proof.
On the second issue, the court held that only material facts supporting the admission of a document ought to be pleaded, and not necessarily the document itself. Once sufficient materials in respect of a document are pleaded, it shall be sufficient for the party pleading same to rely on it and tender documents in support of the pleaded facts, even though the document itself is not pleaded. Further to this principle of law referenced, the court held that the Respondent’s Amended Statement of Claim contained enough facts connected with the relevant guidelines of the CBN, and this was sufficient to justify the admission of same in evidence. The Court of Appeal was thus, right to set aside the findings of the trial court by restoring the Guidelines as part of the evidence to be considered in the judgement.
Deciding the third issue, the court held that it is settled beyond doubt that a Counterclaim is an independent action, and the quantum of proof necessary to be attained for the purpose of obtaining judgement in the counterclaim must be the same standard required of the Plaintiff in the main claim. The Counter-Claimant can only succeed on the strength of his case, and not on the weakness of the defence. The court referred to the provision of Section 51 of the Evidence Act 2011 which provides that entries in books of account or electronic records regularly kept in the course of business are admissible evidence, however such statements shall not alone be sufficient evidence to charge any person with liability.
The court held that to merely tender the statement of account as evidence in proof of the debt purportedly owed by the Respondent as interest and charges without demonstrating how the said debt accrued, amounts to dumping a document before the court and expecting it to embark on a voyage of discovery. The Appellant needed to adduce evidence to explain how the figures in the statement of account accrued, and whether it was based on the terms agreed to by the parties. The court relied on FIRST BANK OF NIGERIA v MAMMAN (NIG) LTD (2001) FWLR (Pt. 31) 289.
Regarding the fourth issue, the Apex Court held that although general damages are those which the law implies in every breach of contract and every violation of a legal right, it is nonetheless the duty of the court to apply the legal method of assessment to any qualification, and clearly not to take any pre-estimated determination as if the damages were special and so provided for in the contract. The court referred to SWISS-NIGERIA WOOD INDUSTRIES LTD v BOGO. S (1970) NSCC 235 and ACME BUILDERS LTD v KADUNA STATE WATER BOARD (1999) 2 NWLR (Pt. 590) 288 and held that the Court of Appeal, without engaging in the assessment of damages and without stating whether the amount awarded is for loss of profit and breach of contract or even anticipated profit, erred when it simply awarded general damages in the sum of N5 million, without any basis for the award. The award could, therefore, not stand, as it would be legally and judicially unjustifiable.
Appeal Allowed in Part.
Tunde Adeoye with T.O. Ajayi and Daniel Ojo for the Appellant.
Prince A.A. Ojopagogo for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)