INTERDRILL NIGERIA LIMITED & ANOR v. UNITED BANK FOR AFRICA PLC (2017)

In The Supreme Court of Nigeria

On Friday, the 10th day of March, 2017

SC.4/2007

Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria


Between

l. INTERDRILL NIGERIA LTD
2. MR JOSEPH BOGWU –Appellants

AND

UNITED BANK FOR AFRICA PLC –Respondent

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CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The United Bank for Africa Plc (as plaintiff) took out a suit under the Undefended List procedure against the appellants in this appeal (as defendants) at the High Court of Delta State in 2001. The said plaintiff (now, respondent herein) claimed against the defendants (appellants herein), jointly and severally:1. The sum of N17,835,802.67 (seventeen million, eight hundred and thirty five thousand, eight hundred and two Naira, sixty seven Kobo) being the outstanding debit balance in the first defendant’s account with the plaintiff as at 2nd February, 2001 which sum is due the plaintiff from an overdraft facility granted to the first defendant at the first defendant’s request and guaranteed by the second defendant, which sum the defendants have failed, neglected, omitted and/or refused to pay inspite of repeated demand.
2. 31% per annum on the said sum of N17,835,802.67 (seventeen million, eight hundred and thirty five thousand, eight hundred and two Naira, sixty seven Kobo) from February 03, 2001 until judgment and thereafter 10% per annum on the judgment sum until same is fully liquidated.
Satisfied, from the appellants’ Notice of Intention to defend the suit, that a defence on the merits had been made out, the Court (hereinafter, simply, referred to as “the trial Court) transferred it to the General Cause List “for hearing and determination of the case on the affidavit evidence…”
At the hearing of the suit on August 5, 2003, PW1, Kelechi Ogbonna, presented the plaintiff’s case. He was cross examined. The matter was, then, adjourned to November 3, 2003 for continuation of hearing. On that adjourned date, the appellants, though absent, wrote for an adjournment. Upon the trial Court’s refusal of the application, it foreclosed the defence and adjourned for judgment on November 20, 2003.
Prior to the date aforesaid, the appellants, strenuously, sought to arrest the judgment through a motion filed on November 10, 2003. Having heard submissions on the application on November 20, 2003, the trial Court adjourned its ruling on it to December 5, 2003.
Sequel to its order of the dismissal of the application, it proceeded, on the same day, to dismiss the plaintiff/respondents case, holding that it could not prove interest on the sum of N10,000,000 (Ten million Naira) only although it, still, found that the first appellant collected and utilized the said sum on the basis of Banker/Customer relationship between the parties.
The plaintiff’s appeal to the Court of Appeal, Benin Division, was successful. The Court (hereinafter, simply, referred to as “the Lower Court”) set aside the judgment of the trial Court and entered judgment in favour of the plaintiff.
The lower Court, equally, faulted the trial Court’s reason for refusing to accord probative value to the testimony of PW1 (the trial Court was of the view that, since the said witness was not in the employment of the plaintiff/Bank when the transaction was made and he was not the deponent to the accompanying affidavit, it would attach no weight to his evidence).
Aggrieved, the defendants/respondents (now, appellants) have appealed to this Court. Their two issues were framed thus:
1. Whether the law that any agent or servant can give evidence to establish any transaction (sic) into by a juristic personality is applicable to affidavit evidence?
2. Whether the Court below was right when it held that 
the respondent proved interest and the entire indebtedness of the appellants to the respondent having to the evidence led?
The respondent adopted these two issues which would, therefore, be utilized in the determination of this appeal.
ARGUMENTS ON THE ISSUES
ISSUE ONE
Whether the law that any agent or servant can give evidence to establish any transaction (sic) into by a juristic personality is applicable to affidavit evidence?

APPELLANTS’ SUBMISSIONS
At the hearing of the appeal on December 13, 2016, Ikhide Ehighelua, for the appellants, adopted the brief filed on December 9, 2016, although deemed properly filed on December 13, 2016. As expected, he faulted the lower Court’s disavowal of the approach of the trial Court in refusing to attach probative value to the testimony of the PW1.

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He submitted that affidavit evidence is a special evidence which can only be proved by the deponent, citing Boothia Maritime Inc v Far East Mercantile Co Ltd (2001) FWLR (pt 50) 1713, 1714. He canvassed the view that, even in matters involving juristic persons, only the deponent can give evidence in proof of facts in an affidavit, CPC v INEC (2011) 18 NWLR (pt 1279) 493, 571. He urged the Court to resolve the issue in favour of the appellants.
RESPONDENT’S CONTENTION
On his part, Ama Etuwewe, for the respondent, adopted the brief deemed properly filed on December 13, 2016. He disclaimed the applicability of the decision in Boothia Maritime Inc v Far East Mercantile Co Ltd (supra).

He pointed out that PW1, Kelechi Ogbonna, testified that he was in the employ of the respondent as a business officer. His duties included managing the relationship between the customer and the respondent and the recovery of money which customers owed to it, citing pages 60-61 of the record. He noted that, although unchallenged, the trial Court failed to attach any probative value to his testimony,
Citing page 177 of the record, where the lower Court overruled the position of the trial Court on this point, counsel observed that the approach of the trial Court occasioned a miscarriage of justice. Like the lower Court, he relied on Kate Enterprises Ltd v Daewoo (Nig) Ltd (1985) 2 NWLR (pt 5) 127 and Saleh v Bank of the North Ltd (2006) 6 NWLR (pt 976) 316, 326-327.

He maintained that the lower Court, rightly, upturned the view of the trial Court on the probative value of the evidence of PW1.
RESOLUTION OF THE ISSUE
What prompted the respondent’s appeal against the judgment of the trial Court was the, somewhat, contradictory posture of the trial Court. First at page 91 of the record, it held thus:
The Court prefers the evidence of plaintiff that the nature of the transaction was the grant of facility of N20,000,000 by the plaintiff to the first defendant. By the implied admission of the defendant, the first defendant utilized N10,000,000 – see paragraph 11 of the affidavit of defendants accompanying the notice of intention to defend and see Exhibits 1 and 2 exhibited to the accompanying affidavit to the writ. The Courts finds as a fact that there was a banker and customer relationship and the facility was granted in cause (sic) of that relationship…The Court rejects the defence of the relationship of partnership set up by the defendants.
It is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and defendants…
[italics supplied] Although it found that the defence of the relationship of partnership set up by the defendants was a frivolous attempt to defeat the transaction duly entered by the parties, it nonetheless refused to attach probative value to the unchallenged testimony of PW1. Listen to this:
The Court will however attach no weight to the evidence of PW1 in view of his evidence under cross examination that he was not employed when the transaction was made nor did he depose to the said accompanying affidavit.
[page 88 of the record] Instructively, at page 80 of the record, the said Court had recorded PW1, a Credit Officer of the plaintiff/respondent thus:
I am familiar with the transaction that gave rise to this suit. The facility granted to the first defendant was on the 14/8/98 of N10,000,000. 1st defendant withdrew N10,000,000 out of the facility granted. The facility was initiated by an application by the first defendant to the plaintiff which subsequently gave an offer. The first defendant perfected the offer. The facility was secured by a legal mortgage on the first defendants property at No 81 Airport Road, Warri ..
[page 80 of the record].
The lower Court was un-impressed by the posture of the trial Court; hence it upturned its verdict. In so doing, it (the lower Court) proceeded thus:
Having so found (an obvious reference to the trial Courts finding that The Court rejects the defence of the relationship of partnership set up by the defendants. It is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and defendants…)… the substratum of the defence was knocked out; all that was left was the

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printed evidence of the appellants, which was supported by oral testimony of PW1. It is now very axiomatic that proof of issues in a civil case is on the balance of probabilities. Where there is nothing to put on the one side of the imaginary scale of justice, minimum evidence on the other side satisfies the requirement of proof even where strict proof, such as proof of special damages, is the matter…
[page 173 of the record; italics supplied] The lower Court, equally, faulted the reasoning of the trial Court on the question of the probative value of the testimony of the said witness. Hear the eloquent reasoning of the Court [per Aderemi, JCA, as he then was]:
The plaintiff/appellant, a limited liability company, is an abstract body that only exists in the eyes of the law. In many ways, it has always being (sic) likened to a human body. The law ascribes to a limited liability company the possession of a brain and a nerve centre, which controls what it does, Since it cannot form an intention within.
[pages 174  177] In his spirited attempt to impugn the above reasoning, learned counsel for the appellant cited Boothia Maritime Inc v Far East Mercantile Co Ltd (2001) LPELR -792 (SC). Contrariwise, learned counsel for the respondent disclaimed the applicability of this Court’s decision in Boothia Maritime Inc v Far East Mercantile Co Ltd (supra). I am in agreement with him.
As this Court has often admonished, cases are only authorities for what they actually decided in the context of the prevailing facts. That explains why in Savannah Bank Ltd v P. A. S. T. A. Ltd (1987) 1 SC 198, 278, 279, Karibi-Whyte JSC enjoined Courts to “consider the claim before the Court and the issue which the Court was called upon to decide.”
The question in Boothia Maritime Inc v Far East Mercantile Co Ltd (supra) involved demurrer proceedings. Ogwuegbu, JSC, percipiently, explained:
In demurrer proceedings under the Rules, … the plaintiff should have filed a statement of claim. Otherwise, there will be no basis for the defendant to conceive that he has a good legal or equitable defence to the suit. Therefore, as a general rule, the application cannot be brought before the plaintiff files his statement of claim but must be filed before the filing of the statement of defence. In an application under Order 27, the filing of an affidavit in support of the demurrer is unacceptable as it is a written statement of facts on oath sworn or affirmed before someone who has authority to administer it. In civil proceedings parties may agree that their case be tried upon affidavit and the Court may order that any particular facts be proved by affidavit. It is mandatory that affidavit used in Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. (See Section 86 of the Evidence Act. Cap. 112, Laws of the Federation of Nigeria, 1990) It will therefore be a contravention of Rules 1 and 2 of Order 27 to permit an affidavit supporting an application in demurrer proceedings. An affidavit contains facts alone and a defendant is precluded from answering any questions of fact raised in the statement of claim since he is taken to have admitted the truth of the plaintiff’s allegations and no evidence respecting matters of fact and no discussion of questions of fact are allowed.
(pages 33 -34; italics supplied for emphasis)
On the other hand, the question in the instant appeal is the propriety of the lower Courts view [per Aderemi, JCA, as he then was] that:
The plaintiff/appellant, a limited liability company, is an abstract body that only exists in the eyes of the law. In many ways, it has always being (sic) likened to a human body. The law ascribes to a limited liability company the possession of a brain and a nerve centre, which controls what it does. Since it cannot form an intention within [pages [174-177] My lords, the above reasoning is unimpeachable. Both at common law and under the Nigerian Companies and Allied Matters Act, a duly registered or incorporated company is a persona ficta; a juristic person, Lennards Carrying Co. v. Asiatic Petroleum Co. Ltd. (1915) AC 705, 713-714, per Viscount Haldane L.C.; Bolton (Engineering) Co. Ltd. v Graham and Sons Ltd. 1 QB 159, 172-173, Denning, L. J, that can only

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act through an alter ego, either its agents or servants, Kate Enterprises Ltd v Daewoo Nig Ltd [1985] 2 NWLR (pt.5) 116.
In Ishola v Societe Generale Bank Ltd (1997) LPELR 1547 (SC) 26-27; F-D, this Court, further elaborated on the nuances of this general proposition thus:

…it cannot be over emphasized that a company being a legal person or a juristic person can only act through its agents or servants and any agent or servant of a company can therefore give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence. The fact that such official did not personally participate in the transaction on which he has given evidence may in appropriate cases, however, affect the weight to be attached to such evidence, Kate Enterprises Ltd. V. Daewoo (Nig.) Ltd. (1985) 2 NWLR (pt.5) 116; Anyaebosi v. R.T Briscoe (Nig.) Ltd [1987] 3 NWLR (pt.59) 84; Chief lgunbor and Ors v. Chief Ugbede [1976] 9-10 SC 179, 187 etc.
[Italics supplied]
The concern, which learned counsel for the appellant in this appeal expressed, was that the PW1 did not depose to the affidavit accompanying the plaintiff/respondent’s suit. The question therefore, is whether this is an “appropriate case. Ishola v Society Generale Bank Ltd (supra) which should have affected the weight which the trial Court ought to have attached to the plaintiffs case.
In my humble opinion, the appropriate answer is a resounding No! I would, now, invite the lower Court to supply further elaborations for this posture. Hear Aderemi, JCA (as he then was):
Having so found (an obvious reference to the trial Courts finding that The Court rejects the defence of the relationship of partnership set up by the defendants. It is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and defendants…)… the substratum of the defence was knocked out; all that was left was the printed evidence of the appellants, which was supported by oral testimony of PW1. It is now very axiomatic that proof of issues in a civil case is on the balance of probabilities. Where there is nothing to put on the one side of the imaginary scale of justice, minimum evidence on the other side satisfies the requirement of proof even where strict proof such as proof of special damages, is the matter…
[page 173 of the record; italics supplied] It worthy of note that Aderemi, JCA’s conclusion was in response to the elaborate findings of the trial Court at page 91 of the record thus;
The Court prefers the evidence of plaintiff that the nature of the transaction was the grant of facility of N20,000,000 by the plaintiff to the first defendant. By the implied admission of the defendant, the first defendant utilized N10,000,000 – See paragraph 11 of the affidavit of defendants accompanying the notice of intention to defend and see Exhibits 1 and 2 exhibited to the accompanying affidavit to the writ. The Courts finds as a fact that there was a banker and customer relationship and the facility was granted in cause (sic) of that relationship…The Court rejects the defence of the relationship of partnership set up by the defendants. It is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and defendants…
[Italics supplied] Against the background of the above circumstances, therefore, it was wrong of the trial Court, as held by the lower Court, to have dismissed the plaintiff/respondents suit. I am, therefore, in agreement with the learned counsel for the appellant that the reasoning in Boothia Maritime Inc v. Far East Mercantile Co Ltd (supra) should be canalized within the peculiar facts that yielded it and the questions before the Court.
Indeed, from the facts and circumstances of the instant appeal, the apt authority should be the decision of this Court in Saleh v Bank of North Ltd [2006] 6 NWLR (pt 976) 316, 326-327; (2006) LPELR (2991) (SC) 10-11; F-Awhere it held thus:
… the mere fact that – a bank staff was not around when a customers bank account was opened was not enough to prevent the staff from testifying or giving evidence on customer’s account. See Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. [1985] 2 NWLR (pt.5) 116; See

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also Ishola v. SGB (Nig.) Ltd [1997] 2 NWLR (pt.488) 405; also, Anyaebosi v R.T. Briscoe (Nig.) Ltd. (1987) 3 NWLR. (pt.59) 84; Igbodim v. Obianke [1976] 9-10 SC 179.
This posture, no doubt, finds solid anchorage on this Court’s view in Kate Enterprises Ltd v Daewoo (Nig) Ltd[1985] 2 NWLR (pt 5) 127 that:
To insist that the very person in the appellant Company who negotiated the transaction with the respondent must be called as a witness when the documents relating to the transaction are available and have been admitted in evidence without objection and PW1 is in a position to know about the transaction by the office he holds is, in my view, a negation of the very essence of the corporate personality of the appellants. Companies have no flesh and blood. Their existence is a mere legal abstraction. They must, therefore, of necessity, act through their directors, managers and officials... PW1 was clearly in a position to know enough about the transaction as to testify to it on behalf of the appellants. Besides, his evidence is substantially unchallenged and supported by documents tendered. I am satisfied that if the learned trial Judge had borne these facts in mind, he would have given due weight to the oral evidence tendered by the appellants before him.
[italics supplied for emphasis] In my view, this is, exactly, the point which the lower Court endeavored to make when it held at page 173 of the record that “… the substratum of the defence was knocked out; all that was left was the printed evidence of the appellants, which was supported by oral testimony of PW1.”
In all, I find no merit in the appellants’ complaint in this issue which I resolve against them.
ISSUE TWO
Whether the Court below was right when it held that the respondent proved interest and the entire indebtedness of the appellants to the respondent having to the evidence led?

On this issue, learned counsel for the appellant sought, most gallantly, I must observe, to impugn the lower Court’s conclusion. He devoted paragraphs 2.12-2.53, pages 5-12 of the brief to his efforts in this regard.
On his part, counsel for the respondent, spiritedly, debunked these submissions on pages 10-18 of the respondent’s brief. I must, quickly, point out here that, against the background of the specific findings of the trial Court, affirmed by the lower Court, learned counsel for the appellant would appear to have labored in vain.
First, I would, once more, refer to the findings of the trial Court at page 91 of the record thus:
The Court prefers the evidence of plaintiff that the nature of the transaction was the grant of facility of N20,000,000 by the plaintiff to the first defendant. By the implied admission of the defendant, the first defendant utilized N10,000,000 – See paragraph 11 of the affidavit of defendants accompanying the notice of intention to defend and see Exhibits 1 and 2 exhibited to the accompanying affidavit to the writ. The Courts finds as a fact that there was a banker and customer relationship and the facility was granted in cause (sic) of that relationship…The Court rejects the defence of the relationship of partnership set up by the defendants. It is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and defendants…
[italics supplied] Notwithstanding the above finding, the trial Court still found against the respondent (as plaintiff) on the flimsy and weak-kneed reasoning at page 88 of the record. It held thus:
The Court will however attach no weight to the evidence of PW1 in view of his evidence under cross examination that he was not employed when the transaction was made nor did he depose to the said accompanying affidavit.
[page 88 of the record; italics supplied] This slipshod reasoning prompted the finding of the lower Court that:
It was even erroneous for the trial judge to late hold otherwise having earlier held that he preferred the evidence of plaintiff that the nature of the transaction was the grant of facility of N20,000,000 to the plaintiff (sic) by the first defendant (sic).
[pages 177 -178 of the record] At page 12 of the respondent’s brief, it was argued thus “having not appealed against the finding of fact as regards the issue of partnership and the utilization of N10,000,000 based on the banker/customer relationship, the appellants are bound by the findings of fact which the Court of Appeal accepted.”

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I, entirely, agree with this submission. It has long been settled that a finding of fact not appealed against cannot be disputed, Commerce Assurance v Alli [1992] 3 NWLR (pt 232) 710. In effect, the correctness of such findings cannot be questioned, Yesufu v. Kupper International [1996] 5 NWLR (pt 446) 17; PN Udoh Trading Co. Ltd. v Abere [2001] 11 NWLR (pt 723) 114, 146. In all, therefore, this settled position, coupled with the exhibits before the trial Court, affirmed by the lower Court, make the submissions of the appellants’ counsel [pages 5-2. 53 of the brief] otiose
Indeed, as the lower Court found as follows:
Exhibits STB1 and STB2, copies of which were attached to the supporting affidavit clearly authenticate the interest rate payable. The first respondent signed the Memorandum of Acceptance Column by affixing its common seal and one of its directors by name Joseph Bogwu who, incidentally, is the second respondent, signing it and the Secretary of the Company by name Johnson Uwabor also signing. Again the second respondent also signed the Guarantee and Indemnity form – Exhibit STB2, which itself accompanied the supporting affidavit. There was no scintilla of evidence denying the signatures of the respondents. In the absence of plea of non est factum or allegation of signing under duress, the mere fact of the signature of a person on a document makes the contents binding on him.
[pages 178 -179 of the record; italics supplied for emphasis].
Instructively, whilst Exhibit STB1 provides for the interest rate chargeable on the above facility; Exhibit STB2, the Guarantee and Indemnity form, was executed by the second appellant for the benefit of the first appellant. These were not disclaimed in the appellants’ Counter Affidavit at the trial Court. This background, undoubtedly, informed the submission on page 15 of the respondent’s brief that: “the plaintiff/appellant (sic) did not only prove its case on the preponderance of evidence, [it] also proved that it was entitled to charge interest on the principal sum…”
I, entirely, endorse this submission for it accords with this Court’s position that:
…interest may be awarded in a case in two distinct circumstances, namely: (i) As of right; and (ii) Where there is a power conferred by Statute to do so, in exercise of the Court’s discretion. Interest may be claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship, see, London, Chatham & Amp; Dover Railway v. S. E. Railway (1893) A.C. 429 at p. 434. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead fact which show such an entitlement in the statement of claim.
Ekwunife v Wayne (West Africa) Ltd [1989] 3 NSCC 352, 359; [italics supplied for emphasis]; T. O. N. P. C Unltd v Pedmar Nig Ltd LPELR -3145 (SC) 19-20; C-A; Veepee Industries Ltd v Cocoa Industries Ltd (2008) LPELR – 3461 (SC) 14; C-E. This was, exactly, what the respondents did at the trial Court which the lower Court affirmed. I, therefore, find no merit in the complaint in this issue which I, also, resolve against the appellant.
In consequence of all I have said, I find that this appeal must be, and is hereby, dismissed as being, wholly, unmeritorious. Appeal dismissed. I hereby affirm the judgment of the lower Court. No order as to costs.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the benefit of reading in draft the leading judgment of my brother, Nweze JSC. I agree with his lordship that the judgment of the Court of Appeal should be affirmed and the appeal dismissed. In view of the reasons given by the trial Court dismissing the respondents claim, I add a few words of mine.
The respondent granted the 1st defendant/1st appellant an overdraft facility guaranteed by the 2nd defendant/appellant, which as at 2 February, 2001 amounted to N17,835,802.67 (Seventeen million, eight hundred and thirty-five thousand, eight hundred and two naira sixty-seven kobo). Unfortunately the 1st defendant failed to meet its obligations to the bank (respondent)., despite repeated demands for the sum and interest.
Owing to the 1st defendant’s default the respondent as plaintiff filed a suit under the undefended list procedure for the sums due and interest.
The defendants/appellants filed a Notice of intention to defend. After examining it, the learned trial judge was satisfied that there was a defence on the merits.

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The learned trial judge then transferred trial to the General Cause list. Relying on the affidavit in support and documents relevant for the grant of an overdraft facility the plaintiff called one witness, and tendered through him documents. The plaintiffs sole witness was cross-examined by the defendants’ counsel. At the close of cross-examination further hearing was fixed for 3 November 2003. On that day the defendants were absent and not represented by counsel. The learned trial judge fixed judgment for 20 January 2003. Judgment was delivered, dismissing the plaintiffs claim.
The reasoning of the learned trial judge for dismissing the plaintiffs claim was interesting. His lordship said:
 The Court will however attach no weight to the evidence of PW1 in view of his evidence under cross-examination that he was not employed when the transaction was made nor did he depose to the said accompanying affidavit.

The plaintiff/respondents case crumbled in the trial Court because PW1 the sole witness of the plaintiff:
1. Was not employed by the plaintiff when the transaction between the plaintiff and appellant was made.
2. Did not depose to the affidavit the plaintiff relied on to prove their case.

And so no weight can be attached to the testimony of such witness.
The Court of Appeal set aside the judgment of the trial Court after it explained the concept of a limited liability company and found that the plaintiffs sole witness was a competent and compellable witness. The Court also was satisfied that exhibits were in favour of the plaintiff and the evidence was largely unchallenged.
A company is an artificial person. Decisions for, and actions by it are taken by natural persons such as the Board of Directors, individual Director, employees and agents. That is to say the company acts through these people. Officers of a company involved in transaction involving the company and some other party are competent and compellable witnesses in a Court of law if and when the transaction becomes subject of litigation. This is also the case where an officer is employed by the company after the transaction was concluded, provided such an officer is fully briefed and documents relevant to the transaction are made available to him by his employers. See
Kate Enterprises Ltd v Daewoo (Nig) Ltd (1985) 2 NWLR (Pt. 5) p. 127
Saleh v Bank of North Ltd (2006) 6 NWLR (pt. 976) p. 316.

PW1, the sole witness for the plaintiff/respondent was not in their employment when they granted the appellants overdraft facility. When he gave evidence he claimed to be the Business officer of the plaintiff/respondent, whose duties included managing the relationship between the customer and the bank. He easily qualifies as one of those who acts on behalf of the company, and the fact that he was not in the employment of the plaintiff/respondent when the overdraft facility was granted to the defendant/appellants does not make his evidence worthless. He is a competent and compellable witness and much weight should have been attached to his testimony.
Section 134 of the Evidence Act states that burden of proof in civil cases shall be discharged on the balance of probabilities.
Balance of probabilities or preponderance of evidence means that in civil proceedings judgment is given to the party with the greater weight or stronger evidence.
Once documentary evidence supports oral evidence, oral evidence becomes more credible as documentary evidence always serves as a hanger from which to assess oral testimony. See Kindley & ors v M.G. of Gongola State (1988) 2 NWLR (Pt. 77) p. 473 Omoregbe v Lawani (1980) 3-4 SC p. 117.
Furthermore when the evidence of the plaintiff is unchallenged, the plaintiff is entitled to judgment. PW1 testified on oath, and his testimony was supported by documentary evidence. Evidence led was one way, in favour of the plaintiff, since there was no evidence led by the defendants. Documentary evidence to wit: Exhibits STB1 and STB 2 supports the oral testimony of the sole witness at trial.
That together with the unchallenged testimony of the sole witness entitles the plaintiff to judgment as the plaintiff clearly satisfied the requirements of Section 134 of the Evidence Act. The trial judge was wrong to dismiss the plaintiffs claim and the Court of Appeal was right to say so.

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Finally, I must comment on Exhibits STB1 and STB2. Exhibits STB1 states the interest payable on the overdraft facility while Exhibit STB 2 is the Guarantee and Indemnity Form.
The 1st respondent signed Exhibit STB1. It was also signed by a Director of the 1st defendant/appellant, pasted on to the Exhibit after the secretary of the company signed. As regards Exhibit STB 2 and 2nd defendant/appellant signed.
The Court of Appeal after examination of these exhibits observed that:
“There was no scintilla of evidence denying the signature of the respondents. In the absence of plea of non est factum or allegation of signing under duress, the mere fact of the signature of a person on a document makes the contents binding on him.”

Top officials of the 1st appellant signed Exhibit STB 1, while the 2nd appellant, who guaranteed the overdraft facility signed Exhibit STB2 as guarantor. By no stretch of imagination can it be said that top officials of the 1st appellant and the 2nd appellant signed Exhibits STB1 and STB2 without reading the contents. They never complained of being blind. Their signatures on both exhibits implies full agreement with everything in the exhibits. The signatories to the exhibits (supra) must accept the implications and consequences of their signatures on Exhibits STB1 and STB2.
As Judges, when we examine exhibits such as these, it is not our business to find out the intention of each party. What we do is to decide what a party was reasonably entitled to conclude from the attitude of the other. So once Exhibit STB1 and STB2 were signed by officials of the appellant and none of them complained that they signed under undue influence or denied their signature, the contents of both exhibits are binding on them.
It is for this, and the more detailed reasoning in the leading judgment that I too affirm the judgment of the Court of Appeal and dismiss the appeal.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in advance the lead judgment of my learned brother Nweze JSC just delivered, I agree with his lordship’s reasoning and conclusion that the appeal lacks merit and that same should be dismissed.
I rely on the summary of facts contained in the lead judgment to emphasize that a trial Court’s failure to act on the unchallenged evidence of a competent witness renders its decision manifestly perverse. And that is what entitles an appellate Court to interfere by being the needful: availing itself the evidence ignored by the trial Court in arriving at the appropriate decision.
In the instant case, the trial Court’s decision which runs counter to the lawful evidence the respondent herein, as a plaintiff, led at the Court does occasion a miscarriage of justice.
See lrolo V. Uko (2002) 14 NWLR (Pt 786) 195 and Atolagbe V. Shorun (1985) 1 NWLR (Pt 2) 360.
The lower Court’s interference with the trial Courts manifestly perverse decision, learned respondent’s counsel is right, cannot be said to be wrong.
It is for this and the fuller reason given in the lead judgment that I dismiss the appeal and abide by the consequential orders therein
CLARA BATA OGUNBIYI, J.S.C.: I read In draft the lead judgment just delivered by my learned brother, Nweze, JSC. I agree that the appeal has no merit and should be dismissed.
The facts leading to this appeal have been spelt out clearly in the lead judgment.
The Respondent herein was the plaintiff at the trial High Court, Delta, who commenced the action under an undefended list against the defendants/Appellants herein this appeal. The claim was for the sum of N17,835,802.67k being an outstanding debt balance in the first Defendants account with the plaintiff which was due to the plaintiff from an overdraft facility granted to the 1st defendant at the 1st defendants request and guaranteed by the second defendant.
This sum, the defendants have failed, neglected, omitted and/or refused to pay in spite of repeated demands.

…………………….I…………………….

2) 31% interest from the date of judgment and thereafter 10% interest until same is fully liquidated.
Consequent upon the defendants filing a notice of intention to defend, the suit was transferred to the general cause list to be heard on affidavit evidence.
The trial Court at the end of the day dismissed the plaintiffs suit at pages 78 – 95 of the record.
On an appeal to the lower Court, same was allowed and the trial Court’s judgment was reversed. The plaintiff/appellant before that Court was granted the reliefs sought per its claims.
The appeal now before us is predicated on the following two issues:-
1) Whether the law that any agent/servant can give evidence to establish any transaction entered into by a juristic personality is applicable to affidavit evidence.
2) Whether the Court below was right when it held that the respondent proved interest and the entire indebtedness of the appellant to the respondent having regard to the evidence led
.
I wish to lend in my comment on the 1st issue raised. It is the submission of the appellant on the said issue that the lower Court erred when it held that the trial Court was wrong in attaching no weight to the evidence of the plaintiff witness (PW1) having regard to the fact that the matter was heard on affidavit evidence.
It is the counsel’s submission further that the law that any agent or servant can give evidence to establish any transaction entered into by a juristic personality is not applicable to affidavit evidence: that affidavit evidence is special evidence which is not open to another person to prove those facts within the knowledge of another.
As rightly submitted by the respondent’s counsel, Mr. Kelechi Ogbonna (PW1) was in the employment of the respondent and was a business officer, at the time he testified at the trial Court. PW1 also testified further that as a business officer, his duties includes managing the relationship between the customer and the bank (respondent) and the recovery of money owed the respondent by its customers.
It is Pertinent to say also that PW1’s evidence was not challenged nor controverted. The trial Court was therefore wrong in law, in not attaching any weight to the said evidence of PW1. As rightly held by the respondents counsel therefore, the trial Court greatly erred and also occasioned a miscarriage of justice against the respondent as plaintiff.
Hence the lower Court was right in reversing the trial Courts decision when it held this at page 177 of the record:-
“… I hold that the learned trial judge erred in holding that the evidence of PW1 was lacking in evidential value for the reason stated. Since that evidence was not challenged and there is no legal inhibition militating against it, I hold that the testimony is of high evidential value.”

It is trite that a company such as the respondent is a corporate entity and could act only through its servants and agents and as a result thereby any employee who is in a position to have a personal knowledge of a transaction by virtue of his office can give evidence of such transaction on behalf of the company. See Kate Enterprises Ltd V. Daewoo (Nig) Ltd (1985) 2 NWLR (Pt 5) P.127. See also Saleh V. Bank of the North Ltd. (2006) 6 NWLR (Pt. 976) P.316 at 326 – 327 wherein Musdapher, JSC said:
“Any agent or servant can consequently give evidence to establish any transaction entered into by a juristic personality. Even, where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company. Such evidence nonetheless is admissible, will not be discountenanced or rejected as hearsay evidence. The learned trial judge was clearly in error to have ignored the evidence led by the respondents that they were not around when the appellant opened its account with the respondent bank.”

The above authority is on all fours with the appeal at hand and speak negative volume on the findings by the trial Court. The lower Court could not be faulted but rather deserve commendation for detecting the trial Court and thus rectifying same.

…………………….J…………………….

My brother has thrashed out the two issues very well and extensively. With the few words of mine and relying particularly on the comprehensive and detailed reasonings in the lead Judgment, I also find no merit in this appeal but dismiss same in terms of the lead judgment.
The appeal is hereby dismissed and I abide by all the orders made in the lead judgment.
AMIRU SANUSI, J.S.C.: Having perused the judgment just delivered by my learned brother, Nweze JSC when supplied to me, I find myself in entire agreement with his reason and conclusion that this appeal lacks merit and therefore must be dismissed.
In the present case the facts as could be gleaned from the record of appeal clearly revealed that the respondent herein as plaintiff at the lower Court granted an overdraft facility to the 1st defendant now appellant on 2-2-2001 to the tune of N17,835,802.67. The appellant refused to pay back despite series of demands. The former decided to institute an action under the undefended list procedure for recovery of the loan granted plus the accrued interest. When served with the Court process, the appellant as defendant filed notice of intention to defend, hence, the trial Court transferred the suit to the general cause list.
At the trial, the plaintiff (now respondent) called one witness who tendered the relevant documents for the grant of the overdraft and after his testimony he was cross examined before the trial Court, adjourned the case for further continuation. On the adjourned date, the defendant/appellant was absent from Court and was also not represented. Sequel to that, the trial Court fixed the matter to a date for judgment and it delivered same on that day dismissing the plaintiff/respondents claim on the bizarre reason that PW1 who testified for the plaintiff/respondent was not in the employment of the respondent as at the time of the transaction between the plaintiff/respondent on one hand and defendant/appellant on the other, also because he (PW1) was not the one who deposed to affidavit supporting the claims and therefore, the trial Court refused to attach any weight to the testimony of PW1.
On appeal to the Court of Appeal (the Court below) the decision of the trial Court was upturned and it held that PW2 was competent to testify on behalf of the respondent (plaintiff) which is limited liability entity. The Court below also held that the exhibits tendered on behalf of the plaintiff/respondent were uncontested or challenged.
I think I am inclined to agree with the findings of the Court below with regard to the competence and compellability of PW1 to testify on behalf of its employer i.e the respondent. The plaintiff being an artificial entity has the right to institute an action before any Court and in that case must use a juristic person to ventilate its case or grievances in Court. The fact that PW1 was not an employee of the plaintiff/respondent as at the time of this transaction is immaterial. He can by virtue of his position in the bank as business officer who must have been fully briefed and was fully aware of the contents of the document relating to the transaction. See Saleh vs Bank of the North Ltd. (2006) 4 NWLR (pt 976) 316. His oral testimony was supported by the documents he tendered at the trial.
The important thing for the trial Court to consider was whether the testimony of PW1 and indeed the documents supporting or governing the transaction were controverted in any material particular. As there was no evidence adduced by the defendant/appellant challenging or contradicting both the oral testimony of the PW1 and the document or exhibits tendered in the case. The trial Court should have accepted and acted on them and found that the plaintiff respondent had proved its case at least on balance of probability, rather than to advance those flimsy and untenable reasons for rejecting the evidence adduced in the case by the plaintiff.
In the light of these few comments and for the fuller and more elaborate reasoning advanced in the lead judgment which I am at one with, I also hold that the appeal lacks merit. I accordingly dismiss it and affirm the judgment of the Court of Appeal which set aside the decisions of the trial Court. Appeal is hereby dismissed by me.

Appearances

Ikhide Ehighelua. –For Appellants

AND

Ama Etuwewe. –For Respondent

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