3PLR – MR. L. A. OHIOWELE V. MR. EDWARD IGHODARO
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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MR. L. A. OHIOWELE
V.
MR. EDWARD IGHODARO
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 25TH DAY OF MARCH, 2013
CA/B/301/2008
LN-e-LR/2013/118
OTHER CITATIONS
(2013) LPELR-20291(CA)
BEFORE THEIR LORDSHIPS
SIDI DAUDA BAGE J.C.A
AYOBODE OLUJIMI LOKULO-SODIPE J.C.A
TOM SHAIBU YAKUBU J.C.A
BETWEEN
- L. A. OHIOWELE – Appellant(s)
AND
- EDWARD IGHODARO – Respondent(s)
REPRESENTATION
- A. Lawani for the Appellant. – For Appellant
AND
- O. Odion with Olamide Ilenusi – For Respondent
ORIGINATING STATE
Edo State: High Court (P. I. Imoedemhe J- Presiding)
MAIN ISSUES
DEBTOR AND CREDITOR LAW – PROOF OF INDEBTEDNESS:- Issuance of a check in satisfaction of a loan – Whether constitute evidence of indebtedness – Whether debtor asserts that cash payment had been made in redemption of the value on the checks – Burden of proving same – On whom lies
BANKING AND FINANCE LAW:- Check – Value on check – Whether photocopy of check is admissible as proof of its existence and non-satisfaction – Claim that check issued had been redeemed by way of equivalent cash payment – How proved – Relevant considerations
BANKING AND FINANCE LAW:- Check – As a bill of exchange – Presumption in favour of a holder of a check for value – Whether cannot avail a person holding only photocopy versions of the original check – Section 30 of the Bills of Exchange Act – What needs to be proved to impeach the operation of the presumption in favour of a person holding but a photocopy of a check
PRACTICE AND PROCEDURE – EVIDENCE – DOCUMENTS:- Treatment of documentary evidence when made available – Whether lends credence to oral evidence of a witness
PRACTICE AND PROCEDURE – ACTION – PLEADINGS:- Means of proof – Whether determined by nature of fact under investigation – Cases tried on pleadings – Duty of parties to prove their respective cases by the best evidence the issue in dispute or controversy demands – Whether the means of proof is invariably indicated or informed by the nature of the fact under investigation
PRACTICE AND PROCEDURE – EVIDENCE – STANDARD OF PROOF: Civil cases – Whether decided on preponderance of evidence and balance of probability
MAIN JUDGMENT
AYOBODE OLUJIMI LOKULO-SODIPE J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment delivered on 18/10/2007 by the High Court of Edo State holden in Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice P. I. Imoedemhe (hereafter simply referred to as “the learned trial Judge”). The lower court entered judgment in favour of the Respondent as Plaintiff before it, in respect of one out of the three claims he brought against the Appellant as Defendant.
The facts of the case briefly stated are that the Respondent brought the instant action against the Defendant claiming the sum of N6,664,800.00 (Six Million, Six Hundred and Sixty Four Thousand Eight Hundred Naira) as loan given to the Appellant between March to October 1997; pre-judgment interest at 30% per annum from 18/10/1997 till judgment and interest at 10% on all the sums owed by the Appellant as solicitor’s fees for which he has been exposed by recovering his money through court action.
In his pleading the Appellant controverted the case set up by the Respondent in pursuit of the claims before the lower court. The Appellant set up a case that two of the post dated cheques pleaded by the Respondent were issued in anticipation of a loan he did not actually receive. It is also his case on the pleading that the Respondent was seeking to hold him (Appellant) liable for a loan extended by the Respondent to one Mr. Philemon Abu whom the Appellant introduced to Respondent.
Parties adduced evidence before the lower court in respect of their respective cases as set up in their pleadings. Documentary evidence was also relied upon by the parties at the hearing of the case. Having had the benefit of addresses of the parties, and after evaluating the evidence (i.e. oral and documentary) before it, the lower court in its judgment found that the Respondent did not establish his entitlement to the claims for solicitor’ fees; and pre-judgment interest. The lower court accordingly entered judgment in favour of the Respondent against the Appellant for the sum of N6,664,800.00 being money had and received by the Appellant from the Respondent between March 1997 and October, 1997. Costs in the sum of N5,000.00 was also awarded in favour of the Respondent.
Being aggrieved with the decision of the lower court the Appellant lodged an appeal against the same by a Notice of Appeal dated 9/11/2007 and filed on the same date. The Notice of Appeal contains two grounds of appeal. The grounds of appeal shorn of their respective particulars read thus:
“GROUND ONE
The learned trial Judge erred in holding that the inconsistency in the evidence of the plaintiff/Respondent is immaterial despite the fact that the contradiction goes to the root of the Plaintiffs case.
GROUND TWO
The learned trial Judge erred in law in holding that the Plaintiff is entitled to the presumption under Section 30(1) Bills of Exchange Act Cap 35 Laws of the Federation 1990.”
Parties filed and exchanged Briefs of Argument in accordance with the Rules of this Court. Appellant’s Brief of Argument dated 13/1/2009 and filed on the same date but deemed to have been properly filed on 28/10/2009 was settled by M. O. Okhuarobo Esq. Respondent’s Brief of Argument dated 2/6/2010 and filed on the same date but deemed to have been properly filed on 14/4/2011 was settled by J.O. Odion Esq. The appeal was entertained on 12/2/2013. At the hearing of the appeal, O. A. Lawani of counsel for the Appellant and J. O. Odion learned lead counsel for the Respondent respectively, adopted and relied on the Briefs of Argument of their clients as hereinbefore identified, in aid of their positions in the appeal.
Two issues were formulated for the determination of the appeal in the Appellant’s Brief of Argument. The issues read thus: –
“1. Whether the Respondent proved his case before the trial Court that the Appellant is indebted to him to the tune of N6,664.800.00.
- Whether the presumption in Section 30(1) Bill of Exchange Act CAP BB Laws of the Federation of Nigeria 2004 will extend to photocopies of cheques in the peculiar circumstances of this case.”
The two issues formulated for the determination of the appeal in the Respondent’s Brief of Argument read thus: –
“1. Whether having regards to the state of pleadings, evidence led by the parties and the crucial findings of facts by the trial judge the respondent was not entitled to judgment as per his statement of claim?
- Whether in the circumstance of the case, the learned trial court Judge gave a proper interpretation of sections 30(i) and 62(2) 31 of the Bill of exchange Act.”
It is my considered view that the issues formulated by the Respondent though differently couched are in essence the same as those formulated by the Appellant. Accordingly, the appeal will be determined on the issues formulated by the Appellant.
APPELLANT’S ISSUE 1.
Dwelling on this issue, the Appellant submitted to the effect that the onus of establishing his indebtedness was on the Respondent and must be discharged by credible and consistent evidence. This is particularly so, in a claim for a specific sum of money as debt. That the onus is on the Respondent who has so asserted, to establish the indebtedness and the specific sum, by credible evidence. Reference was made to Section 135(1) Evidence Act Cap E14 Laws of the Federation of Nigeria 2004 and the cases of Akintola v. Stabilini & Co. Ltd (1992) NSCC Vol. 17 122 at 125; Achiong v. Ita (2004) 2 NWLR (Pt 858) 590 at 618 – 619; and Braimoh v. Abasi (1998) 13 NWLR (Pt.581) 167 at 178-179, were cited in aid. The Appellant submitted that credible and consistent evidence portend that documentary evidence and oral evidence must not contradict each other and cited the cases of Fashanu v. Adekoya (1974) All NLR 32 at 43; and Jinadu v. Esuromi-Aro (2005) 14 NWLR (Pt.944) 142 at 192 in aid. It is the stance of the Appellant that the evidence adduced by the Respondent was contradictory and manifestly unreliable. Elaborating on this, the Appellant stated that Exhibit P2 tendered by the Respondent which is an affidavit deposed to by him (in respect of items lost in a fire) in paragraph 2(a) thereof stated the cheque issued to him by the Appellant to be for the sum of N6.46 million. That curiously, the Respondent admitted under cross-examination that it was the exact amount he lent to one Yabod introduced to him by the Appellant and who has absconded to the United States of American without repaying the loan. The Appellant referred to Exhibit P 15 – a letter dated 30/7/97 by which the Respondent demanded the said sum of N6.46 million from one Philemon Abu, trading as Yabod Ltd. The Appellant referred to the oral evidence of the Respondent wherein he stated that the amount owned him by the Appellant was N6,664,800.00 and in proof of which he tendered photocopies of cheques issued by the Appellant Exhibits P3 – P12.
The Appellant narrated the evidence he gave to the effect that he did not issue any cheque for the amount on Exhibit P2; that the amount on Exhibit P2 was a loan given to one Philemon Abu; that he was never given a loan of N6,664,800.00 by the Respondent; that Exhibits P3 – P12 are photocopies of cheques already redeemed and the originals returned or misplaced; and that he did not guarantee the loan given by the Respondent to Philemon Abu. The Appellant submitted that Exhibits P3 – P12 constitute no evidence of indebtedness. That if Exhibit P2 is taken as true (in that the house of the Respondent was burnt), the absence of those Exhib1s i.e. P3 – P12 among the lost items set out in Exhibit P2, should weigh against the Respondent. That the fact that the Respondent still had photocopies of the cheques is not inconsistent with the cheques having been redeemed by cash payment as stated by the Appellant. The Appellant further submitted that the contradictions are material as the court is not entitled to pick and choose. Therefore that both evidence ought to be discountenanced and the cases of Abatan v. Awudu (2004) 17 NWLR (Pt. 902) 430 at 445; and Ezemba v. Ibeneme (2000) 10 NWLR (Pt.674) 61 at 74, were cited in aid. The Appellant stated that the contradiction between Respondent’s Exhibit P2 and his oral evidence before the lower court is material and he ought not to be taken as a credible witness and his claim ought not to succeed in the light of such contradictions.
Dwelling on this issue, the Respondent submitted that the lower court was right in entering judgment in his favour having regard to the state of the pleadings and evidence led by him especially the cogent documentary evidence in proof of the Appellant’s indebtedness. The Respondent stated that his case before the lower court was simple and straight forward; and that he led cogent and positive evidence in proof of the Appellant’s indebtedness to him. That specifically he tendered Exhibits P3 – P12 which were the post dated cheques, issued by the Appellant to him as proposed repayment for the loan he advanced to the Appellant. Noting that the Exhibits were tendered and admitted in evidence without opposition from the Appellant, the Respondent submitted that once Exhibits P3 – P12 were admitted in evidence as proof of the Appellant’s indebtedness to him, they became the main plank of his case and he was therefore entitled to judgment as per the value of the said cheques, which cumulatively totaled his (i.e. Respondent’s) claim in the sum of N6,664,800.00. It is the stance of the Respondent that he succeeded in proving his case on the balance of probability as required by law with the Exhibits he tendered. The case of Fed. Mortgage Finance Co Ltd v. Ekpo (2004) 2 NWLR (Pt. 856) (no page) was cited in aid.
It is also the submission of the Respondent that the attempt by the Appellant to contradict or vary the content and true import of the said cheques by his oral evidence goes to no issue, as it is now trite law that no oral evidence is admissible to contradict or vary the content of a document in the absence of fraud. Reference was made to Section 132(1) Evidence Act. The Respondent pointed it out that the Appellant never alleged fraud on his part (i.e. Respondent) in any part of his pleading, save for the Appellant’s feeble accusation that he (i.e. Respondent) is tying him (i.e. Appellant) to the debt of another person, namely, Mr. Philemon Abu. That the Appellant however never attempted to join the said Mr. Philemon Abu in this suit, nor call him as a witness. Against this backdrop, the Respondent submitted that the lower court was right in rejecting the ipse dixit of the Appellant in his attempt to attack the authenticity of Exhibits P3 – P12, (the cheques) he voluntary issued in acknowledgement of his debt to him (i.e. Respondent).
The case of U.B.N. v. Ozigi (1994) 3 NWLR (Pt.333) 400, was cited in relation to the excision of oral evidence in contradiction of documentary evidence.
The Respondent stated that apart from his positive, logical and credible testimony and Exhibits P3 P12 tendered in proof of the Appellant’s indebtedness to him; the lower court made the following crucial findings of fact which tilted the pendulum of the case his favour. The crucial findings are to the effect: –
(1) That the Respondent’s case as presented is a simple one for money had and received. That in the proof of the amount he tendered Exhibits P3 – P12 issued in his favour by the Appellant in repayment of the sum advanced to him. The total value of those cheques is the sum of N6,664,800.00 claimed by the Respondent, There is also evidence on record that one of the cheques Exhibit 6 was dishonoured when it was presented for payment on the due date. (See page 61 of the record);
(2) That the lower court whilst construing the provisions of sections 3(1) and 30 (1) of the Bill of Exchange Act, made the following ancillary findings of fact.
“The implications of the above provision in my view, is that the defendant is deemed to have received value for Exhibit (sic) P3 – P12, while the Plaintiff is relieved of the burden of proving same as the law is that no party is required to prove that which the law presumes in his favour’. (See page 62 of the record).
(3) That the lower court whilst evaluating the evidence of the Appellant and his defence to the Respondent’s claims held that “The defence of the defendant in respect of these issues consist in his bare assertion, that those exhibits (Exhibits P5 and P6) were issued in anticipation of the sum of money he expected to receive for (sic) the plaintiff but which was never given to him. However on the face of these exhibits the one exhibit P5 is dated 18/4/97 while the other (exhibit P6) is dated 2/5/97.The amount of assistance requested from the plaintiff for which the two cheques were issued is not disclosed nor is there any explanation for the issuance of the second cheque when no funds had been released to him for the first”. (See page 62otthe record).
(4) That the lower court in dismissing the defence of the Appellant equally held
“In respect of the contention that the other cheques Exhibits P3 and P4 and Exhibits P7 -P12 relate to other transaction and have been redeemed, the defendants (sic) case is again based on his ipse (sic) dixit. He said he made payments to the plaintiffs clerk to redeem those cheques and was issued with receipts which are his possession. He also said that after repayment of the value of the cheques, He (sic) he did not collect them from the plaintiff. The defendant did not however tender payment receipts issued by the plaintiffs clerk which he claimed he had in his possession to show that the amount in Exhibits P3 and P4. P7 – P12 or any of them have been repaid”. (See page 63 of the record)
(5) That finally the lower court inter alia held “I also find it improbable that the defendant as a business man should refund the value of the cheques, obtain receipts for the refund and not collect the cheques back”. (See page 63 of the record).
The Respondent stated the position of the law to be that it is only the learned trial Judge who was opportuned to see the demeanour of the parties and witnesses that can effectively adjudge the credibility and honesty of the witnesses. Another position of the law stated by the Respondent is that unless the findings of fact made by the trial court are proven to be perverse the appellate courts are not willing to interfere with such findings of fact. The cases of Agoma v. Guinness (Nig) Ltd (1995) 2 NWLR (pt.3B0) 622 at 687- 688; and Ebba v. Ogodo (19S4)4 SC 84 at 98 – 103; amongst others were cited in aid. The Respondent observed that the Appellant has not challenged any of the crucial findings made by the lower court by either of his grounds of appeal. This Court was therefore urged to sustain the crucial findings of fact made by the lower court.
Dwelling on the content of Exhibit P 2 vis-a-vis Exhibits P3 – P12, the Respondent in the main submitted that whatever conflict that is therein, was not material to have occasioned the Appellant a miscarriage of justice. That the courts are duty bound to ignore minor contradiction or inconsistencies in evidence and the case of Hyun Sung Hydraulic Machinery Co. Ltd v. Jaffar (2004) 15 NWLR (Pt.896) 343 at 359 was cited in aid.
In cases tried on pleadings, it is therein that parties disclose their respective cases that they are to establish by evidence before the trial court. Parties are to prove their respective cases by the best evidence the issue in dispute or controversy demands. In other words the means of proof is invariably indicated or informed by the nature of the fact under investigation. See PURIFICATION TECHNIQUE LTD V. JUBRTL [2012] All FWLR (pt.642) 1657. The Respondent was very consistent in his pleading as to the sum he was claiming from the Appellant, and the circumstances in which the sum of money came to be due to him (Respondent). The Respondent specifically pleaded his reliance on the photocopies of the cheques issued to him by the Appellant in the proof of his case. He pleaded that he was relying on photocopies of the cheques as the originals were lost in the fire that engulfed his house.
The Appellant set up the case that the Respondent by his action was seeking to recover from him the debt owed him by another person whom he (Appellant) introduced to the Respondent. That the person had absconded without repaying the loan he took from the Respondent. The Appellant admitted that two cheques were given to the Respondent by him in anticipation of a loan which he never got. He never denied issuing the Respondent the cheques pleaded in the Respondent’s pleading. He however claimed that they had been redeemed by the payment of cash.
The Appellant in arguing issue 1 has not submitted that the Respondent did not adduce evidence in respect of his case. He has contended that the Respondent adduced inconsistent evidence because the cheque referred to in the deposition in paragraph 2(a) of Exhibit P2, states a sum different from that being claimed in the instant action by the Respondent. Also the Appellant made the point that none of Exhibits P3 – P12 are referred to in Exhibit P2.
The lower court considered the submissions of the Appellant in this regard in the judgment and made specific and crucial findings of facts which were aptly captured and set out in the Brief of Argument of the Respondent. The findings in question as set out in the Respondent’s Brief of Argument have equally been re-produced in this judgment. I must observe that as rightly stated by the Respondent, none of the specific and crucial findings made by the lower court in this case, is the subject of attack or is being challenged by Appellant’s issue 1, and a fortiori cannot be successfully canvassed by issue 1 under consideration inasmuch as the said issue is distilled from ground 1 of the grounds of appeal. What the Appellant’s ground 1 of the grounds of appeal and issue 1 distilled therefrom is about; is no more than a complaint regarding proper evaluation of evidence. This is particularly so as the lower court found that what the Appellant had said in respect of Exhibit P2 and the cheques (i.e. Exhibits P3 – P12), did not distract from the merits of the Respondent’s case.
I have painstakingly perused the evidence on record and the balanced evaluation of the evidence undertaken by the lower court and I cannot but agree with the said court that whatever inconsistency that arose from the deposition in paragraph 2(a) of Exhibit P2, had no effect whatsoever on the case of the Respondent having regard to the specific cheques he pleaded reliance on in proving the indebtedness of the Appellant to him. This is particularly so as the Appellant never denied issuing the originals of the cheques to the Respondent and from which the photocopies that were tendered before the lower court were made. Also the Appellant never backed up his claim that he had redeemed the cheques in question with any proof save for merely saying so. I cannot but say that it is simply commonsensical that the Appellant in the knowledge of the pleading of the Respondent that clearly disclosed that the Respondent in the proof of his case was relying on cheques which Appellant claimed to have redeemed, ought to have pleaded whatever receipts that were issued to him in evidence of such redemption in his pleading. The Appellant never did this. He introduced the matter that he was given receipts in evidence of the redemption of the cheques pleaded by the Respondent and photocopies of which were tendered as Exhibits, under cross-examination. Even at that, the Appellant never produced the receipts which he claimed to have in his possession, before the court. The Appellant would appear not to realise that being the party that raised the issue of redemption he had burden of proving that fact. Just as he had the burden of proving that the Respondent was by the instant action seeking to recover another person’s debt from him. The law is that he who asserts must prove. See JOLASUN V. BAMGBOYE {2011} All FWLR (Pt, 595) 203 at 222.
The best evidence available to the Respondent in the proof of his case (the originals haven been burnt in the fire that consumed his house), were the photocopies of cheques that he made, The Appellant never portrayed the originals of the cheques to have come into the possession of the Respondent by any on toward means. He also never furnished any credible evidence showing that he had at any time before the institution of the case redeemed the cheques by payment of cash. To crown it all, the sum total of the cheques (photocopies) tendered by the Respondent tallied with the amount the Respondent claimed from the Appellant. All of Exhibits P3-P12 are photocopies of Union Bank cheques. The Appellant never denied having any account with the Bank. Though the value of the Union Bank cheque as stated in the deposition in paragraph 2(a) of Exhibit P2 does not tally with the sum being claimed in the instant action, one must not lose sight of the fact that the Respondent did not offer Exhibit P2 in the proof of the Appellant’s indebtedness to him. The purpose for which the Exhibit was tendered was to enable the Respondent lead secondary evidence in respect of the cheques he relied on, in proving his case. True, it is that the cheques admitted as Exhibits P3 – P12, were not set out in Exhibit P2, however the Appellant in the knowledge of this fact never objected to the admission of the photocopies of the cheques in evidence. (See page 39 of the record). Indeed, as it is clear that the Respondent never offered Exhibit P2 in proof of any part of his case, it is difficult to see how anything that was not stated therein or stated therein that is at variance with the “evidence proper” adduced by the Respondent in the proof of his case, can amount to inconsistency, as argued by the Appellant.
The law is that documentary evidence when made available lends credence to oral evidence of a witness. See JOLASUN V. BAMGBOYE (supra) at pages 228 – 229.
It is also the law that civil cases are decided on preponderance of evidence and balance of probability. See PURIFICATION TECHNIQUE LTD V. JUBRIL (supra) at page 1687. The lower court clearly rightly found in favour of the Respondent based on Exhibits P3 – P12. There was no inconsistency in the evidence of the Respondent regarding the Exhibits that has in anyway rendered them unreliable.
Flowing from all that has been said above, is the fact that Appellant’s issue 1 is resolved against him.
APPELLANT’S ISSUE 2
Dwelling on this issue, the Appellant submitted that the presumption that a holder of a Bill of Exchange is a holder for value presupposes two elements, namely, (i) that a valid bill is in the possession of the holder; and (ii) that there must have been consideration for same. The Appellant further submitted that the existence of the instrument must first be shown before the burden to prove the absence of consideration shifts to a party who alleges that he received no consideration, to lead evidence in rebuttal. The case of F.A.T.B. Ltd v. Partnership Investment Co. Ltd (2003) 18 NWLR (Pt.851) 35 at 72-73, was cited in aid. It is the stance of the Appellant that Exhibits P3 – P12 tendered by the Respondent are mere photocopies of cheques issued in respect of past transactions between the parties that had been redeemed by cash payment by him (i.e. Appellant). The Appellant submitted that the failure of the Respondent to satisfactorily establish the instrument will prevent the operation of the presumption in Section 30 Bills of Exchange Act in his favour. That in the circumstance the onus cannot shift on him where the presumption ought not to avail the Respondent.
Dwelling on the issue, the Respondent relying on the findings of fact made by the lower court as espoused by him under issue 1, submitted that the lower court rightly applied the provisions of the Bill of Exchange Act in resolving the issue as to whether Exhibits P3 P12 (the cheques) represented the value ascribed thereto in cash. The Respondent further submitted that the extant provisions of the Bill of Exchange Act considered by the lower court i.e. Sections 3(1),30(1) and 62(2)(b) were apposite and dealt succinctly with the issues at stake. That specifically the lower court interpreted Section 30(1) to the effect that the Appellant having signed the post dated cheques i.e. Exhibits P3 – P12 for the value reflected thereon in favour of him (i.e. Respondent) constituted an acknowledgement that he was indebted to the Respondent in the said sum of N6,664,800.00. It is the stance of the Respondent that since the Appellant could not prove that he (Respondent) got value for the said cheques, coupled with the evidence that two of the said cheques were dishonoured as shown in Exhibit P19, it was clear that the Appellant was indebted to the Respondent in the sum covered by the said cheques. The Respondent submitted that the interpretation by the lower court is consistent with well settled principles of law which regard a bill of exchange (such as the cheques Exhibits P3 P12 this case) as acknowledgement of debt by the drawer of the said bill of exchange. The cases of A.C.B. Ltd v. Alao (1994) 7 NWLR (Pt.358) 614; U.B.A. Ltd v. City Mark W/A Ltd (1996) 1 NWLR (Pt.424) 370 at 376 -377; and Auto Import Export v. Adebayo (2005) 19 NWLR (Pt.959) 44 at 87-88 were cited in aid.
The Appellant in arguing this issue is definitely not saying that cheques are not bills of exchange. The stance of the Appellant is that the presumption that the Respondent is the holder of Exhibits P3 – P12 for value cannot avail him because the Exhibits as “mere photocopies” of cheques issued in respect of past transactions between the parties that had been redeemed by cash payment by him (i.e. Appellant).
Clearly and without having to dwell elaborately on the issue, same must fail as the basis is not the case in the instant matter. It was not found by the lower court that the Appellant redeemed the Exhibits or any of them. Also the fact that the Exhibits are photocopies cannot prevent the operation of the presumption under Section 30 of the Bills of Exchange Act. This is because the Exhibits even though they are photocopies having being admitted have thereby established that their originals were prior to their destruction issued to the Respondent by the Appellant. In other words as the Appellant never remotely showed any invalidity on the faces of the Exhibits, the validity of the originals from which they were made cannot be impugned by now referring to them as “mere photocopies”. The validity of the originals of the Exhibits not being in doubt, it follows that by the Appellant’s showing and argument of this issue, the Exhibits must enjoy the presumption accorded bills of exchange by the relevant law. This issue is accordingly resolved against the Appellant.
In the final analysis, the two issues formulated for the determination of the appeal by the Appellant haven been resolved against him, it follows that the appeal is unmeritorious and it fails. Accordingly, the judgment of the lower court delivered on 18/10/2007 is affirmed.
Costs of N30,000.00 is awarded the Respondent against the Appellant.
SIDI DAUDA BAGE, J.C.A.:
My learned brother, A. O. Lokulo-Sodipe JCA, availed to me in draft, the lead Judgment just delivered. I am in complete agreement with the Judgment. I also find the appeal as unmeritorious and it fails. The Judgment of the lower court delivered on 18/10/2007 is also affirmed by me.
I abide with the consequential order contained in the lead Judgment.
TOM SHAIBU YAKUBU, J.C.A.:
The draft of the judgment, just delivered by my learned brother, AYOBODE O. LOKULO-SODIPE, JCA, was made available to me before now. Having read it, I am in total agreement with his Lordship who dealt meticulously with all the issues in the appeal, to my satisfaction.
I, too dismiss the appeal, as lacking in merit. I abide by the order as to costs, contained in the lead judgment.
