Mainstreet Bank Limited v General Steel Mills Limited and Others (CA/L/906/2013) [2016] NGCA 26 (26 May 2016)

JUDGMENT

(Delivered By TIJJANI ABUBAKAR, JCA)
This appeal is against the Judgment of the Federal High Court, Lagos Division delivered by I. N. Buba J. on 28/06/2013 in suit No: FHC/L/CS/522/2009.
The summary of the case at the Court below is that the suit was instituted by the Respondents as Plaintiffs against the Appellant as Defendant, somewhere along the line the learned counsel for the Appellant abandoned the case, consequently the Respondents as Plaintiffs opened their case in the absence of the Defendant and/or its counsel, the case of the Defendant was closed and the suit was adjourned for final address all in the absence of the Defendant. Afterwards, another counsel sought to be substituted for the previous counsel on record who had abandoned the Defendant/Appellant, and sought by a Motion on Notice that the case be re-opened for the defendant to be heard, the Plaintiffs/Respondents opposed the said Motion and the Court in its Ruling refused the application to have the case re-opened for the defense to be heard. The Court thereafter delivered judgment in favor of the Plaintiffs/Respondents. The Defendant became aggrieved by the judgment and therefore filed the Notice of Appeal herein. The Notice of Appeal dated 5/8/2013 and filed 6/8/2013 contains three Grounds of Appeal; the grounds less their respective particulars are reproduced as follows:
1. The learned Mai Judge erred in law when the Court delivered its Judgment and held that the Defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the Court
2. The Honorable Court misdirected itself when on the one hand the Court relied wholly on the case of and submissions of the Plaintiffs (now Respondents) and held that their testimony was unchallenged and as such deemed admitted by the Defendant, was unchallenged and as such deemed admitted by the Defendant, and on the other hand regarding the Written Final Address submitted by the Defendant (now Appellant) held that submissions that are not backed by evidence goes to no issue. So also pleadings that is not supported by evidence is deemed abandoned.
3. Whether the Honorable Court did not misdirect itself when it awarded the sum of N33,891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo) as money deducted from the Plaintiffs account and interest on the judgment sum at the rate of 21 % from December2007 till judgment and 6% from the date of judgment until it is finally liquidated.

The learned counsel for the Respondent nominated two issues for determination; the issues are also reproduced as follows:
1. Whether having regard to the facts, circumstances, records and the judgment of the trial court, the Appellant was not given ample opportunity of fair hearing in the court below.
2. Whether on the evidence presented before the Lower Court by the Respondents, a case had been properly made out to warrant judgment on the Statement of claim.
I have carefully examined the issues submitted for determination, I am of the view that Appellants issues for determination are capable of providing platform for discourse in this appeal, I therefore adopt them as the issues to resolve in the determination of this appeal. Let me quickly add, that Appellants issues two and three shall be discussed and resolved together.

ISSUE ONE

In his submissions, learned counsel for the Appellant referred to NZEKWE V. ANAEKWENEGBU [2011] 16 NWLR (Pt. 1274) 431 at 436 and U.B.N. PLC V. LAWAL [2012] 6 NWLR (Pt. 1295) 186 at 191 to submit that Rules of Court must be interpreted in such a manner as to prevent undue adherence to technicalities, and that parties should not be punished for the mistake and inadvertence of Counsel when such mistake or inadvertence is in respect of procedural matters. He submitted that the previous counsel for the Defendant (now Appellant) never withdrew from the suit before the Court below in accordance with the Rules of the Court, but rather abandoned the case and contended that the Appellant should not suffer for the omission and mistake of Counsel.

Learned counsel argued that the trial Court neglected the essence of the Rules of Natural Justice and fundamental principles of Audi Alteram Partem by ruling against the Appellant and refusing to grant the orders sought by its Notice of Change of Counsel. He cited ELIAS Vs. SOWEMIMO [2012] 4 NWLR (Pt. 1289) 63 at 66, EMEKA Vs. OKADIGBO [2012] 18 NWLR (Pt. 1331) 55 at 70 and EKPENETU Vs. OFEGOBI [2012] 15 NWLR (Pt. 1323) 276 at 284-285 and submitted further that, the right to fair hearing which is constitutionally provided for under Section 36 (1) of 1999 Constitution (as Amended) is so fundamental that it cannot be expressly or impliedly waived nor taken away by statute.

In his response on this issue, learned counsel for the Respondent contended that the Appellant showed a consistent lack of interest in defending the suit before the lower Court despite being regularly informed by correspondence of the progress of the matter, He added that the Appellant had more than enough time to be heard but failed to act on that right, he submitted that the Appellant did not utilize the opportunity offered by the Court. He relied on the decisions in MICRO-LION INTERNATIONAL (NIG) LTD. Vs. GAZADIMA [2009] 14 NWLR (Pt. 1162) 481 CA at 486 and ASSOCIATED ELECTRONIC PRODUCTS (NIG) LTD Vs. AADE INDUSTRIAL AND INVESTMENT COMPANY LTD. [2010] 44 WRN 181 at 183 to submit that the grant or refusal of an application falls within the discretionary powers of the Court which must be exercised judicially and judiciously in considering the conduct of the Appellant, and that the refusal by the lower Court to reopen the case was in exercise of the Court's discretionary powers having regard to the Appellant's conduct throughout the trial of the case at the lower Court.

Learned Counsel referred to Order 7 Rules 1(1) and (2), Order 8 Rules 1 and 2, and Order 14 Rules 1 and 7 of the Federal High Court (Civil Procedure) Rules 2009 to submit that the where a defendant is in default of appearance, a plaintiff may apply to a judge for judgment for the claim on the originating process or such lesser sum and interest as the Judge may order. He submitted further that though the Court would not punish a party for the mistakes of his counsel, however, equity aids the vigilant and not the indolent and delay defeats equity. He cited COLITO (NIG.) LTD V. DAIBU [2010] 2 NWLR (Pt. 1178) CA 217 and AUDU V. INEC (No. 2)[2010] 13 NWLR (Pt. 1212) CA 456 at 475 to submit that an Applicant relying on the above stated rules of Court must show that his conduct is not reprehensible and that there was no delay on his part in bringing the application. He submitted further that fair hearing does not apply where the litigant has missed the opportunity given to him to ventilate his grievance at the hearing of a case, and that the Appellant was given ample opportunity to be heard in line with Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Learned counsel referred to WILLIAMS & ORS V. HOPE RISING VOLUNTARY FUNDS SOCIETY [1982] All NLR 1 & 2 SC 145 and IDAM UGWU & ORS. V. NWAJI AND OTHERS (1962) ALL NLR 438 to submit that the Court in exercising its discretion to consider an application made out of time would consider the Rules of court and the conduct of the Appellant throughout the proceedings. Learned counsel for the Respondent further submitted that where a party to a suit has been accorded reasonable opportunity to be heard and for no justifiable or cogent reason neglects to attend the sitting of the Court, he is thereafter deemed to have abandoned his case and cannot complain of breach or denial of fair hearing. Learned counsel referred to ABANA V. ONI [2015] 6 NWLR (Pt. 920) 183 at 189 and urged this Court to hold that the Appellant was given ample opportunities but failed to defend the suit and therefore cannot be heard to complain of the breach of his right.
In the Reply brief, learned counsel for the Appellant reiterated his earlier submissions that the case of the Defendant/Appellant was closed on the day the case was listed and adjourned for mention and not for trial and that no Hearing Notice was served on the Appellant. He referred to ASHIRU V. AYOADE [2006] 6 NWLR (Pt. 976) 405 at 425 - 426 Para. G - A and submitted that in refusing to reopen the defense wrongfully closed by the Court on a date that the case was adjourned for mention, and the failure to serve any Hearing Notice, the lower Court closed the door to fair hearing on the Appellant and sacrificed substantial justice to the alter of speed and quick justice.

The crux of this issue is whether or not the trial court erred in holding that the Appellant/Defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the Court. The contention of the Appellant is that the refusal by the trial court to re-open the case amounted to a violation of its right to fair hearing under section 36 (1) of 1999 Constitution of the Federal Republic of Nigeria (as amended).
To resolve this Issue it is necessary to x-ray the proceedings of the lower Court, this will be done to determine whether from the proceedings, it will be obvious that the appellant in this appeal was truly denied fair hearing. For this purpose therefore the records of appeal particularly pages 1-240 of Vol. I of the records are relevant, the records show that the suit was instituted by the Respondents against the Appellant by a writ of summons dated 20/5/2009 and accompanied by a Statement of claim and other documents at the lower court. Page 241 of Volume I of the record reveals that the matter came up before the lower court for the first time on 26/6/2009 and the Appellant was absent and unrepresented. The case was then adjourned to 16/7/2009 for mention, on the 16/17/2009, the Appellant was again absent and unrepresented, the Respondents on the other hand sought an adjournment to be heard on their motion dated 13/7/2009 seeking an order of court to enter judgment against the Appellants (Defendants at the lower court) in default of appearance and pleadings. The court adjourned to 5/10/2009 for hearing, these facts are contained at pages 243 - 252 of Volume I of the records of appeal.

At pages 257 - 259 of Volume I of the records of appeal, the Appellant, by a motion on Notice dated 2/10/2009, sought for an order of the lower court for an extension of time within which it could file and serve its memorandum of appearance and statement of defense and an order of the lower court deeming its memorandum of appearance and statement of defense as properly filed and served. The Appellant also filed a motion for striking out of the Respondents' (plaintiff's) statement of claim, which was also dated 2/10/2009.
As recorded at pages 402 - 404 of Vol. II of the records, on the adjourned date, the Respondent's counsel did not oppose the motion for the extension of time, and in fact, withdrew their motion dated 13/7/2009 for an order of court to enter judgment against the Appellants (Defendants as the lower court) in default of appearance and pleadings. The Court granted the prayer for the extension of time and struck out the motion for judgment. The Appellant (Defendant's) counsel sought for an adjournment for hearing on its other motion for order of court striking out the Respondents' (plaintiffs') statement of claim, the court adjourned to 10/11/2009 to hear the motion for striking out.

The records also show that parties were absent but were represented by their respective counsel on the 4/2/2010 at page 478 of Vol. II of the records; 29/4/2010 at page 497 of Vol. II of the records; 24/5/2010 at page 501 of Vol. II of the records; and on 13/7/2010 at page 667 of Vol. II of the records, Respondents (Plaintiffs) were represented by one D. Isikwere. The court adjourned to 25/10/2010 for trial.

However, on 25/10/2010 as can be seen at pages 668 - 669 of Vol. II of the records, Appellant and its counsel failed to appear before the lower court, while the plaintiffs were represented by one D. Isikwere. Trial commenced with PW1 giving evidence in chief, and the court adjourned to 14/12/2010 for continuation of trial.

On 14/12/2010, Appellant and its counsel were again absent in court without any notice conveying reasons for its absence, the court adjourned to 7/2/2011 for continuation of trial and ordered service of hearing notice. The Respondents' counsel by a letter at page 675 of Vol. II of the records dated 14/12/2010 addressed to A.C. Igboekwe, the counsel who had been representing the Appellant at the lower court, informed them of the position of the case and that the matter had been adjourned to 7/2/2011. The Notice of hearing served on the Appellant's counsel and received by one Blessing O., Secretary in the law firm is exhibited at page 674 of the records.

On 7/2/2011, the Appellants were again absent in court, the lower court closed the case of the Respondent and opened the case of the defense. The Court adjourned to 17/5/2011 and ordered issuance of hearing notice. Records show that the Appellant was absent and unrepresented in court without any notice on 14/11/2011; 8/5/2012; 28/6/2012; 20/11/2012; 5/2/2013 and

26/2/2013. Meanwhile, the Respondents consistently served on the Appellant letters informing them of the position of the case and the date the matter had been adjourned to. The letters are exhibited at pages 706 – 706D and 711, of Vol. II of the records dated 14/12/2010 addressed to A.C. Igboekwe, the counsel who had been representing the Appellant at the lower court.
Meanwhile, at page 712 of Vol. II of the records, in a letter dated 1/3/2013 addressed to the Respondents' (Plaintiffs') Counsel by one Chibuzo Anaeto (Miss) of Andy Igboekwe & Co, indicated that they were no longer the solicitors to Mainstreet Bank Plc. and advised that the Appellant should serve all court processes on the Bank directly. To this end, the Respondents counsel wrote the Appellant bank directly vide letter dated 4/3/2013 informing it of the pendency of the matter before the court and the next adjourned date which was 6/3/2013; this letter is at page 713 of Vol. II of the records.
On 6/3/2013, the court did not sit. Respondents again wrote a letter dated 7/3/2013 which is exhibited at page 715 of Vol. II of the records informing the Appellant bank directly of the matter and the next adjourned date being 12/4/2013. It is pertinent to note that the letters directed to the Appellant Bank were acknowledged as received. On 12/4/2013, the Appellant was again absent and unrepresented; the Court closed the plaintiff's case and adjourned to 8/5/2013 for adoption of final written address, page 716 - 717 of Vol. II of the records confirms this. Again, the Respondent's counsel wrote the

Appellant bank directly vide a letter dated 30/4/2013 exhibited at 717A of Vol. II of the records informing the Appellant of the progress of the case and the next adjourned date.
On 8/5/2013, as shown at page 718 - 719 of Vol. II of the records, Mr. Ikenna Onwusika and Edward Porbeni appeared for the Appellant. The lower Court held that there was no valid notice of change of counsel and that the erstwhile counsel did not withdraw but only abandoned the court. The Learned trial judge adjourned to 15/5/2013 for addresses. Thereafter, the new counsel for the Appellant filed a motion on notice for change of counsel dated 9/5/2013. The motion is exhibited at page 721 -727 of Vol. II of the records. The new counsel also filed a motion seeking the Order of the lower court to allow the Appellant (Defendant) to reopen its case which had been closed on 12/4/2013 in the absence of the Defendants.

On the next adjourned date, 15/5/2013, the Respondent's counsel did not object to the Notice of change of counsel but opposed the Appellant's Motion to reopen its case. The court adjourned to 12/6/2013 for the hearing of the motion, page 739 - 740 of Vol. II the record shows all these facts. The Appellant's counter-affidavit dated 5/6/2013 was supported by exhibits and written address, which can be seen at page 743 - 760 of Vol. II of the records.

On 12/6/2013, the lower court heard the motions of counsel and adjourned to 17/6/2013. On 17/6/2013, the court received the counter affidavit of the Respondents to the Appellants motion, and then the court delivered its ruling wherein the court dismissed the Application of the Appellants. The ruling is contained at 1021 - 1023 of Vol. Ill of the records of appeal. Parties thereafter adopted their final written addresses and the court adjourned for judgment. The final judgment of the lower court delivered on 27/06/2013 is contained at page 1074 -1137 of Vol. Ill of the records.

From the records as summarized above, it is without doubt that the submission of the Appellants counsel that the Appellant was never served is incorrect and untrue. The Respondent informed the Appellant's counsel who abandoned the case and upon receipt of that counsel's letter that they no longer represent the Appellant, the Respondent directed the letters of Notice to the Appellant. Despite all these, the Appellant failed to show up in court until it was apparently too late for them to do so.

It is trite that the court is a place where serious businesses are conducted and those who have business in the court must take it with all sense of seriousness, respect and reverence. I must state that the attitude of the erstwhile counsel for the Appellant at the lower court who without notice abandoned the court is blameworthy and unbecoming of a responsible legal practitioner. The duty of a Counsel who has been briefed by a litigant and has accepted the brief is to present his client's case with utmost devotion, sincerity and honesty and where the counsel wishes to withdraw appearance from representing a client in court, his duty is to duly inform the court. See OGBORU & ANOR Vs. UDUAGHAN & ORS (2013) LPELR-20805(SC), CHUKWU & ANOR Vs. INEC & ORS (2014) LPELR-22221(SC) 52 and NGERE & ANOR Vs. OKURUKET & ORS (2014) LPELR-22883 (SC) 25. However, a litigant has a duty to be vigilant and diligent towards his case, it is not enough for a litigant to brief a counsel and then go to sleep. The cause of action affects the litigant more directly than the counsel and the Appellant herein should have been more than concerned in seeing that the case was diligently prosecuted. It is not enough for a litigant to entrust his case in the hands of Counsel and recline his seat and go to sleep.
In the case of OKOCHA Vs. HERWA LTD (2000) 15 NWLR (Pt. 690) 249 it was held as follows and I quote:

"The business of the Court must be conducted with expedition; and a counsel who was not in Court at the time his client's case was called could not blame anybody but himself, I also accept that it is wrong in principle to visit the sin of a counsel on his client but in the instant case both the client and his counsel were in sin and I do not see the justification to penalize the party that was in Court at the proper time to argue its case only because of such principle of not visiting counsel's sin on the litigant."

See: also GOV BENUE STATE Vs. NIGERIAN CONSTRUCTION CONSORTIUM LTD (1997) 3 NWLR (Pt. 495) 610 and NIGERIAN AGRICULTURAL & COOPERATIVE BANK LTD Vs. MR. LEWECHI OZOEMELAM (2004) LPELR - 5955.
Learned Counsel for the Appellant also argued that the appellant was denied fair hearing. In SUNKANMI ADEBESIN Vs. THE STATE (2014) LPELR-22694 (SC) 40 it was held as follows and I quote:

"The general rule as provided by the Constitution is certainly trite that the principle of fair hearing is not negotiable. The question however, is whether the appellant was infact denied such right in the case at hand. If the answer is in the positive, the outcome of the entire proceeding would be vitiated and nullified."

Can it therefore be said from the records of proceedings and the materials before the Court, which I have already summarized above that the Appellant in the instant case was denied fair hearing?, the answer is definitely in the negative. The Appellant who was given enough time to defend the case against it but abandoned its defense in court cannot claim denial of fair hearing, the Court cannot wait for a party until he is sufficiently pleased to appear in Court in the name of fair hearing. See MFA & ORS Vs. INONGHA (2014) LPELR-22010 (SC) 26. where the Supreme Court per NGWUTA, JSC held on the principle of fair hearing as follows and I quote;

"The process of fair hearing is a two-edged sword and it cuts both ways - appellants have a right to a fair hearing and fair hearing implies also that the respondent as plaintiff is entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting justice. On the facts of this case, I hold that the appellants could not substantiate their allegation of denial of fair hearing".

I adopt the holding by my Lord Ngwuta JSC and hold that the Appellant in this appeal cannot allege denial of fair hearing, the lower Court was generous and lavish in accommodating the sluggish attitude of the appellant. The Appellant had ample time to defend its case but failed to do so. When opportunity is given to a party to defendant an action, and the party for some reasons decides to drag its feet, the Court has discharged its obligation to the party, and if the party fails to take advantage of the opportunity, the Court is not to blame; the sluggish party must bear the consequence. This issue is therefore resolved against the Appellant.

ISSUES TWO AND THREE
I shall take the arguments of the Appellant on issues 2 (two) and 3 (three) together. The argument of the Appellant under issue 2 (two) is that there was no basis to deem the evidence and testimony of the Respondents' Witness as unchallenged and that unchallenged evidence cannot be conclusive proof of a Plaintiff's case when the law specifically sets out conditions to be met before the Court can hold that the Plaintiff's case succeeds. He referred to the following cases: ABI Vs. C.B.N. [2013] 3 NWLR (Pt. 1286) 1 at 16, ONYIA Vs. ONYIA [2012] 3 NWLR (Pt. 1286) 182 at 184, SLJUADE V. OYEWOLE [2012] 11 NWLR (Pt. 1311) 280 at 288, UJOATUONU Vs. ANAMBRA STATE GOVT. [2010] 15 NWLR (Pt. 1217) 421 at 439-440,

OMOREGBE Vs. LAWANI (1998) 3-4 SC 108 and CONSOLIDATED BREWERIES PLC Vs. AISOWIEREN [2002] FWLR (Pt. 116) 959 at 990; (2001) 15 NWLR (Pt. 736) 424 to submit that the Plaintiffs have a duty to prove their case and succeed on the strength of their case and cannot be allowed to rely on the weakness of the case of the Defendant. He argued that the case of the Respondents was not proved and accordingly should not be allowed to succeed, and that if the Plaintiff has not proved his case, evidence of rebuttal does not arise.
Learned counsel further submitted that it is the role of the trial Court to make findings of facts based on the credibility of the witness who testified and the probability of their story, and to properly evaluate the totality of evidence before coming to a decision to believe or disbelieve a witness or piece of evidence in the just determination of the case. He referred to LAYINKE & ANOR Vs. MAKINDE & ORS [2002] 10 NWLR (Pt. 775) 358 at 375; ATANDA Vs. AJANI [1989] 3 NWLR (Pt. 111) 511 at 524 and ARABAMBI Vs. ADVANCE BEVERAGES IND. LTD [2005] 19 NWLR (Pt. 959) 1 at 8.

Learned counsel for the Appellant argued that the issue before the trial Court was highly contentious and the case was not undefended, and the refusal of the lower Court to re-open the case of the Defense to be heard on the merits is a fundamental error that led to substantial injustice in the determination of the suit. He postulated that the justice of the case demands that the matter be sent back to the trial Court for hearing on the merit. He referred to GAM BO Vs. IKECHUKWU [2011] 17 NWLR (Pt. 1277) 561 at 564 and H.B. (NIG.) PLC V. LODIGIANI (NIG) LTD [2010] 14 NWLR (Pt. 1213) 330 at 336. Learned counsel further submitted that no hearing notice was issued and served on the Defendant/Appellant or on the Counsel for the Defendant on record as at the date the case of the Defendant was closed. He therefore urged this Court to allow the appeal.

On issue number three Learned counsel for the Appellant contended that the basis of the Judgment of the court below for the sum of N433, 891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo) in favor of the Plaintiffs/Respondents was based on the erroneous conclusion that the Plaintiffs/Respondents engaged the services of their accountant who reviewed and analyzed the transaction, calculated the figure and arrived at the sum as the amount overcharged by the Defendant/Appellant. He contended further that the process is flawed and there was no expert opinion received during the course of trial to justify the claimed figures, and that the evidence of the Plaintiffs' witness amounts to hearsay and his report was not duly stamped, the lower Court therefore ought not to have acted upon it.

Learned counsel submitted that the trial Court misdirected itself when it awarded the said sum of Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo because the sum was arrived at based on a faulty computation using the wrong parameters contrary to the established trade practices in the banking system that commercial banks advance credit to business entities for profit, interest and charges do not come free of charge. He submitted further that the Court below misdirected itself when it awarded 21% of Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo as prejudgment sum from December 2007 till judgment was given, and also awarded Five Million Naira as damages.
Learned Counsel urged this Court to allow this appeal, set aside the judgment of the Court below and the orders made pursuant to the said judgment, and to dismiss the case of the Respondents. Alternatively, learned counsel urged this Court to make an order remitting this case back to the Federal High Court, Lagos division for full trial on the merits before another judge.

On issue number two, learned Counsel for the Respondents submitted that Exhibits P3A1 - P3A29 were admitted in evidence before the trial Court as documentary evidence, and that the lower Court in no way misdirected itself in relying on the submissions and evidence of the Respondents in the absence of the Appellant. He referred to C.D.C. NIG. LTD Vs. SCOA NIG.LTD [2007] 30 WRN 81 SC at 93, and OLALOMIIND. LTD Vs. NIDB LTD [2009] 16 WRN (Pt. 1167) 266 SC at 277, Counsel submitted that the 32 exhibits which were tendered by the Respondents witness, Mr. Daniel Isikhumen, the Assistant Manager, Administration and Operation (Liaison Office) of the 1st Respondent Company were all admitted by the Court and neither the Appellant nor its counsel attended the trial proceedings to challenge the evidence laid before the Court despite being issued several hearing notices and letters informing them of the dates and.
Learned counsel submitted that the established evidence clearly settles this issue in favor of the Respondents as the evidence was unchallenged and not contradicted, and ought to be accepted by the Court. He referred to P.C.O OLUDAMILOLA Vs. THE STATE [2010] 2-3 SC (Pt. 111) 194 at 209, ADIM Vs. NBC LTD [2010] 9 NWLR (Pt. 1200) 543 SC at 549, AKINOLA Vs. UNIVERSITY OF ILORIN [2004] 35 WRN 79 CA at 89 and OGBE Vs. ASADE [2009] 18 NWLR (Pt. 1172) 106 SC at 112 and submitted that the Appellant had a duty to rebut the evidence at trial by cross-examining the witness yet they failed to do so.

Learned counsel further contended that the case of ABI Vs. CBN [2013] 3 NWLR (Pt. 1286) 1 at 16 relied on by the Appellant was quoted out of context, and that the Respondents/Plaintiffs succeeded on the strength of their case. Counsel further contended that the submissions of the Appellant that the case of the Respondents was based on a flawed report which was arrived at through a flawed process has no legal or factual basis, and that there was no evidence of such at the Court below and such conclusion cannot in be sustained.

Learned Counsel for the Respondents submitted that pleadings cannot constitute or replace evidence and a Defendant who does not give evidence in support of his pleadings is deemed to have abandoned same and that where a party fails to give evidence in support of his pleadings or in challenge of the plaintiff's, he is deemed to have accepted the facts adduced by the plaintiff notwithstanding the general traverse. He referred to FEDERAL CAPITAL DEVELOPMENT AUTHORITY V. ALHAJI MUSA NAIBI [1990] 5 SC (Pt. II) 79, NASL & ANOR Vs. UBA & ANOR (2008) 8 SCM 189, FRANCIS OSAWE ESEIGBE V. FRIDAY AGHOLOR & ANOR (1993) 12 SCNJ 82, THE ADMINISTRATOR/EXECUTORS OF THE ESTATE OF GENERAL SANNI ABACHA Vs. SAMUEL DAVID EKE-SPIFF [2009] 2-3 SC (Pt. II) 93 and ALHAJI USMAN BUA Vs. BASHIRU DAUDA [2003] 13 NWLR (Pt. 838) 657 at 672, 6 SC (Pt. 11) at 1203. Learned counsel further relied on U.O.C. B.N LTD Vs. OKONKWO [2009] 5 NWLR (Pt. 1134) 401 at 404 and ANPP Vs. INEC [2010] 13 NWLR (Pt. 1212] 549 at 561 and urged this Court to hold that the unchallenged evidence of the Respondents were substantial and cogent enough to prove the averments in the statement of claim.

Learned counsel contended that there was no evidence that the Accountant's report was arrived at through a flawed process as submitted by the Appellant in its brief, and that there is no law that prescribes that a reports by accountants on overcharging of interest must be duly stamped for it to be admissible contrary to the submissions of the Appellant in Paragraph 4.3.1 at page 14 of the Appellants brief of argument. Learned counsel further contended that the Appellant's reliance on M.H. (NIG) LTD & ANOR Vs. OKEFUNA [2011] 6 NWLR (Pt. 1244) 514 at 533 to submit that it is general practice that credit facility obtained from a commercial institution will come with interests chargeable on the facility lacks merit as there was no evidence led in the Court below of such established practice or custom. Learned counsel cited STANDARD TRUST BANK LTD Vs. INTERDRILL NIG LTD [2007] All FWLR (Pt. 366) 756, to submit that a general custom or practice cannot override the express terms of the contract as agreed and contained in the facility letter which is a document that both parties signed. He further submitted that a contract is binding and enforceable and should be treated with sanctity, and that the Court would not make a contract for the parties by reading into a contract what was not intended by the parties. He referred to BABA Vs. NIGERIA CIVIL AVIATION TRADING CENTER [1991] 5 NWLR (Pt. 192) 338 and BALIOL NIGERIA LTD Vs. NAVCON NIGERIA LTD [2010] 16 NWLR (Pt. 1220) at 630.

Learned counsel submitted that the Appellant was in breach of contract by wrongfully importing a non-existent pricing term into the contract and by further over charging and wrongfully deducting money from the Respondent account. He referred to ZAKHEM CONSTRUCTION (NIG) LTD Vs. NNEJI [2002] 5 NWLR (Pt. 759) 55 and N.M.A. INC (2010) 4 NWLR (Pt. 1185) 813. Learned counsel submitted further that the basis for the award of interest by the Court below is that the Appellant kept the Respondents out of their money and had the use of it to itself for which it ought to compensate the