JUDGMENT
(DELIVERED BY YARGATA BYENCHIT NIMPAR (JCA).

This is an appeal against the ruling of the Federal High court delivered by HON. JUSTICE P. I. AJOKU on the 5th July, 2012 wherein the court below over ruled the objection of the Appellant challenging the jurisdiction of the court to entertain the petition of the Respondent to wind up the Appellant company for being unable to pay its debts.

The Appellant had taken a loan from the Respondent on 17th October, 2007 and since then has failed to repay.   The Respondent by way of a petition approached the Federal High Court seeking that the said Appellant company be wound up by the court under sections 409 (a) and 401 (i) (b) of the Companies and Allied Matters Act Cap C20 LFN 2004.  The Appellant filed a preliminary objection challenging the jurisdiction of the court to entertain the said objection.  The trial court over ruled and assumed jurisdiction.  Dissatisfied with the said ruling, the Appellant filed a Notice of Appeal dated 17th day of July, 2012 distilling 3 grounds of appeal.

The Appellant filed its Appellant’s brief of Argument dated 22nd day of February, 2013 filed on the same day but deemed on the 14/10/15 wherein it formulated 2 issues for determination as follows:

1.    Whether the learned trial judge CoramP.I. AJOKU, J.  was right when he dismissed the objection of the Appellant against the hearing of the respondents’ petition when the state of indebtedness of the Appellant was in dispute in that:
a.    The Appellant fervently disputed its indebtedness to the Respondent.
b.    The Appellant is solvent, and operates as a growing concern

2.    Whether the learned trial judge Coram P. I. Ajoku, J., was right when he suomotu raised the issue of the admissibility of Exhibits ‘A’ and ‘A1’ attached to the Appellant’s Notice of Preliminary objection in his ruling dated 5/7/12 without calling on parties to address the court or by oral evidence thereby infringing on the right of the Appellant to be fairly heard.”

The Respondent on its part filed its Respondent’s Brief on the 26th February, 2014 but deemed on the 14/10/15. It adopted the issues formulated by the Appellant but also raised a preliminary objection challenging the competence of this Honourable court in entertaining the Appellant’s appeal.

    The grounds upon which the objection is taken are as follows:

a.    The Appellant’s appeal is not as of right and needs a leave of court before an appeal can lie to the court of appeal.
b.    That the failure of the Appellant to obtain the leave of court is detrimental to the appeal and liable to be struck out.

The Respondent formulated 2 issues for determination in the preliminary objection as follows:

1.    Whether or not that the mere fact that an Appellant describes a ground a ground of appeal as law would necessarily render it so.
2.    Whether or not the failure to obtain leave as a conditional precedence is detrimental to the appeal and confers no jurisdiction on the court of Appeal.

The Appellant on its part and in response to the Preliminary objection distilled a single issue for determination under the Preliminary Objection as follows:

“Whether the Appellant’s Appeal which questions the jurisdiction of the Learned trial Judge to entertain the petition of the respondent for non–fulfillment of the condition precedent is of law which does not require the leave of court of appeal.

    The court shall determine the preliminary objection before delving into the main appeal if it survives the preliminary objection.  I adopt the issue formulated by the Appellant/ Respondent for determination in this preliminary objection.

    The Respondent relying on the case of ALAMIEYESEIGHA V CJN (2005) (PT 906) 60 CA, stated that the ground of appeal raises a question of facts hence, leave of court must be obtained. Also relied on FUMUDOH V ABORO (1991) 9 NWLR (PT 214) 201 CA, SPDC (NIG) LTD V KATAD (NIG) LTD (2006) 1 NWLR (PT 960) 198.  It submitted that the trial judge did not refer to any law in his ruling and the mere fact that the Appellant describes a ground of appeal as law does not make it so. The Respondent therefore submitted that the failure to adhere to the condition precedent of applying for leave to appeal automatically robs the court of jurisdiction to hear the matter.  Cited the following cases; UMANAH V ATTAH (2006) 17 NWLR (PT 1009) 503 SC, AJAYI V OMOREGBE (1993) 6 NWLR (PT 301) 512 SC, RE: OTUEDON (1995) 4 NWLR (PT 392) 655.
    
In its reply brief, the Appellant opposed the preliminary objection raised by the Respondent. It submitted that grounds 1 and 2 of the grounds of appeal attack the assumption of jurisdiction by the learned trial judge when the conditions for winding up in the law had not been met. Further stated that grounds 3 is an attack on whether the court can suomotu raise the issue of admissibility of a documentary evidence in his judgment without allowing parties to address him on it. The Appellant submitted that the fundamental issue of jurisdiction as an issue of law does not require the leave of court, citing AGBULE V WR & P CO LTD (2013) 6 NWLR (PT. 1350) 318 and that a ground of appeal complaining of the denial of fair hearing requires no leave even where it is on mixed law and fact, cited VISAFONE COMMS LTD V MCSN (LTD/GTE) (2013) 5 NWLR (PT 1347) 250. The Appellant went ahead to state the criteria given for distinguishing a ground of law from that of mixed law and fact in the case of AKINYEMI V ODU’A INVESTMENT CO LTD (2012)17 NWLR (PT 1329) 209 and therefore submitted that since the entire gamut of the appeal questions the propriety of the court assuming jurisdiction to wind up a company when the indebtedness is still in dispute, then the ground of jurisdiction alone can sustain the appeal: IRAGBIJI V. OYEWWINLE (2013) 13 NWLR (PT 1372) 566.

RESOLUTION:
    Generally, the right of appeal is guided by constitutional provision which has classified appeals which are of right and when it is with leave of court. See Section241 and 242 of the 1999 Constitution (as amended).  This appeal is an interlocutory appeal and it is specifically provided for in section 241(1) of the Constitution which provides that an appeal as of right will arise only when the appeal raises a question of law.  But, where the question is of mixed law and fact then, leave of court must be obtained before such appeal can be competent. See the case of ALHAJI IBRAHIM SHUAIB KASANDUBU & ANOR V ULTIMATE PETROLEUM LTD & ANOR (2007) LPELR – 8228 (CA) where the court held as follows:

“An interlocutory order involving mixed law and fact can only be appealed against with leave within the meaning of section 242(1) of the said constitution.  If it is a final order, no leave is required whether it is of mixed law and fact. Section 15(1) of the Court of appeal Act provides that appeal from the interlocutory orders must be by leave to the court of appeal.  The position of the law in relation to appeal from the High courts to the Court of appeal varies from the position in relation to appeals from the position in relation to appeals from the court of appeal to the Supreme Court.  It is now settled firmly that where grounds of appeal are based on issues of fact or mixed facts and law, leave must be obtained in the Court of Appeal or the Supreme Court to file and argue them as such at the Supreme Court.”

    Also, the decision in COMMISSIONER OF POLICE, IMO STATE V ENGR. DR. RAGUEL AGUTA (2010) LPELR – 3993 is to the effect that in all tier of courts where there is a right of appeal, for appeals in respect of interlocutory decisions which does not finally dispose of the matter, leave must be obtained before the appeal is filed. Therefore, where leave is required to be first sought and obtained and it is not so obtained, then the appeal would be incompetent.  No leave was sought here though the Appellant contends that the appeal is a challenge to the jurisdiction of the trial court and such grounds do not require leave of court. That is a valid point subject to the nature of the grounds of appeal.

    The Notice of Appeal at pages 91 – 95 of the Record of Appeal sets out 2 grounds of appeal; ground two clearly raises a jurisdictional question and jurisdiction being a threshold issue which can be raised for the first time at any stage of the proceedings, be it Court of Appeal or Supreme Court and does not require leave of court. See ADEFULU V OKULAJA (1998) LPELR – 89 (SC) where the apex court held thus:

“The question as to the jurisdiction of the court can be raised at any point in a case before judgment.”

     The question of jurisdiction is certainly one of law.  In the case of C.G.G. (NIG) V LAWRENCE OGU (2005) LPELR – 822 (SC), the apex court was of the opinion that jurisdiction is a matter of law which can be taken by an appellate court.  It is not a matter of fact which is within the purview of the trial judge.  Jurisdiction is a radical and crucial question of competence of the court, which both trial court and the appellate court have equal right to take.  It strikes at the root of any matter and consequently raises the issue of the competence of the court to adjudicate over a matter. It is a crucial question of competence of the court. That being the case, an Appellant is allowed to raise the question of jurisdiction on appeal without leave where ordinarily he is expected to seek leave, see AGBITI V NIGERIAN NAVY (2011) LPELR – 2944(SC) where the court held thus:

“An appellant is allowed to raise the question of jurisdiction on appeal without the leave of court whereas ordinarily a fresh issue can only be raised on appeal with the leave of court sought and obtained hence the issue becomes incompetent and liable to be struck out. I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. The issue of jurisdiction or competence when raised must be one which must be capable of being disposed of without the need to call additional evidence.”

    Thus, the second ground being one that raises jurisdiction is a competent ground of law which can be raised without leave of court. I agree that it is not the way an Appellant labels a ground of appeal that qualifies it as such. The court has the bounden duty to ascertain and confirm that the ground is one of law indeed.  See the case of THE MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR V EXPO SHIPPING LINE (NIGERIA) (2010) 12 NWLR (Pt. 1208) 261 where the Supreme Court held as follows:

“It is settled that whether a ground of appeal is one of law or mixed law and facts or facts alone does not really depend on the label tagged to the said ground.  In that regard a ground of appeal and the particulars have to be construed together to determine under which one of the above three slots it has fallen to be considered”.

     The appeal herein being hinged on a ground of appeal that raises a question of law is competent and the issue of seeking leave first before filing the appeal does not arise.  

The second issue in the preliminary objection is therefore unnecessary and the objection fails and is hereby dismissed for lacking in merit.

    Now to the main appeal. The Respondent adopted the two issues for determination set out by the Appellant.  They shall be adopted by the court for determination in this appeal.

ISSUE ONE:
Whether the learned trial judge coram P.I. AJOKU, J. was right when he dismissed the objection of the Appellant against the hearing of the Respondents’ petition when the state of indebtedness of the Appellant was in dispute in that:
a.    The Appellant fervently disputed its indebtedness to the Respondent.
b.    The Appellant is solvent, and operates as a growing concern

The Appellant rehashed the position of the law that jurisdiction is a threshold issue and cited MADUKOLU V NKEMDILIM (1962) 2 SC NLR 341, UTIH V ONOYIVWE (1991) 1 NWLR (PT 166) 166 in support.  The Appellant further submitted that since the petition is predicated on the ground that the company is insolvent and unable to pay its debts, the trial judge was wrong to have assumed jurisdiction to entertain the petition of the Respondent when the indebtedness of the Appellant was in dispute.  Appellants stated that the issue of the sustained dispute in the Respondent’s claim was raised in paragraphs 3, 4 and 5 of the Appellants affidavit in support of its Notice of Preliminary Objection and that a winding up action is not a proper procedure where a debt is disputed, referred to the following cases in support: RE GOLD HILL MINES (1883) 23 CH. D. 210, RE IMPERIAL GUARDIAN LIFE ASSURANCE SOCIETY (1869) L.R. 9 E.9. 447.  It further stated that where a debt is disputed, the Petitioner in a winding up proceedings has the burden of first establishing the debt owed him before proceeding to take steps to present its petition.

Consequently, the Appellant submitted that where a debt is disputed, the creditor must seek his remedy in an action for the recovery of debt because until the issue of the Company’s liability is resolved, it cannot be said for certain that the company is indebted to the Respondent, referred to AIR VIA LTD V ORIENTAL AIRLINES LTD (2004) ALL FWLR (PT 212) 1565, ADO IBRAHIM & CO LTD V BENDEL CEMENT CO LTD (2007) ALL FWLR (PT 370) 1381.  Thus, they urged this court to hold that the trial judge ought to have struck out the petition of the Respondent being that the petition did not establish any cause of action against which a petition for winding up could lie, cited AG KWARA STATE V OLAWALE (1993) 1 NWLR (PT 272) 645.

    In response, the Respondent submitted that all the conditions under S. 407 (1) and 408 (d) of the Companies and Allied Matters Act (CAMA) were met before the Respondent brought the petition to wind up the Appellant company.  The Respondent further submitted that a debt must be disputed on substantial grounds before it can come within the purview of the law, referred to the case of HANSA INTERNATIONAL CONSTRUCTION LTD V MOBIL PRODUCING NIGERIA (1994) 9 NWLR (PT 366) 76, AIR VIA LTD V ORIENTAL AIRLINES LTD (2004) ALL NWLR 29 SC. The Respondent submitted that the dispute raised by the Appellant is not brought bonafide; that the letter relied on by the Appellant for excess charge was never received by the Respondent except the letter where the Appellant admitted to its indebtedness. The Respondent referred to the cases of RE: MEDIPHARM PUBLICATIONS (NIG) LTD (1971) 1 U.I.L.R and RE TWEEDS GARAUGE LTD (1962) CH 406.

    However, the Appellant in its reply brief was of the opinion that initiating a winding up petition is not automatic once a debt is in issue and that once a debt is in dispute, the appropriate process is a writ of summons for debt recovery.  

RESOLUTION:
    This issue has two legs to it.  It challenged the trial court’s decision to dismiss the Preliminary objection, firstly, on the fact that the Appellant disputed its indebtedness to the Respondent.  Now, I agree totally with the Appellant that jurisdiction is a threshold issue and where there is a condition precedent to the exercise of jurisdiction, then unless fulfilled, the court shall be devoid of the requisite jurisdiction to determine the matter. The trial court found the preliminary objection as a spurious excuse on the side of the Appellant.  The grounds of the objection states as follows:

a.    The petition of the petitioner was not initiated by due process.
b.    This Honourable court has no jurisdiction to entertain the petition as constituted.
c.    The subject matter of the petition (debt) is in dispute not recoverable by way of a winding –up petition
d.    The petition is an abuse of the process of this Honourable court.

The first leg is that the debt was fervently disputed. Disputation of a debt can bar the court from allowing a petition for winding up a company which has failed to pay its debts. Winding up by the court is provided for by the Act and the circumstances in which the court can wind up a company is found at Section 408 of the Company and Allied Matters Act (“the Act”) which states as follows:

“A company may be wound up by the court if –

a.    The company has by special resolution resolved that the company be wound up by the court.
b.    Default is made in delivering the statutory report to the Commission or in holding the statutory meeting;
c.    The number of members is reduced below two;
d.    The company is unable to pay its debts;
e.    The court is of the opinion that it is just and equitable that the company should be wound up”.

The Act specifically named the Federal High Court as the court with jurisdiction to take winding up proceedings. So failure to pay debts is a good ground to wind up a company. Inability to pay debts is further described by the Act at Section 409(a) CAMA thus:

“A company shall be deemed to be unable to pay its debts if –

a.    A creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding N2,000 then due has served on the company, by leaving it at its registered office, a demand under his hand requiring the company to pay the sum so due, and  the company has for three weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor;”

Under the Act, for winding up to take place, some essential ingredients must be present and they are:

a.    There must be a debt
b.    The debt must be due
c.    The company to be wound up is unable to pay the debt.

The conditions given by law to invoke the jurisdiction of the court is given above.  The trial court placed the materials in the preliminary objection against the law and arrived at the conclusion that the court was properly seized with the vires to determine the petition. The contention of the Appellant was that it disputed the debt.  A dispute was defined in the case of AIR VIA LTD V ORIENTAL AIRLINES (2004) 9 NWLR (Pt. 878) 298 as follows:

“A conflict of claims of rights, or demand on one side met by contrary claims or allegations on the other.”

And the Apex court also in the same judgment gave 4 ways of answering allegation of indebtedness namely:

i.    To admit the debt
ii.    To deny the debt
iii.    To counterclaim against the debt
iv.    To set off against the debt

The Appellant alleged an arbitrary interest charged to which it protested by way of letter.  The letter was found to be an after – thought going by the chain of events particularly the dates.  The trial court held thus:

However, the alleged letter of the Respondent to the Petitioner disputing the COT charged was dated the 24th April, 2008 as contained in the Respondent/Applicant’s exhibit A – A2 more than 8 months before the Petitioner / Respondent’s letter dated 30th December, 2008 to notify the Respondent on the Review of Interest Rates as in exhibit B.

Furthermore, it is pertinent to note that the Petitioner’s letter of 30/12/08 was written before the Respondent/Applicant’s letter to the Petitioner which is dated the 6/8/2009 and after the alleged Respondent’s letter dated 24/4/08. I dare say that one would have expected the Respondent/Applicant to react to the Review of Interest Rate in the letter dated the 30/12/08 in its letter of 6/8/2009………………………………………………………………………………………………………………I must say that I am reluctant to agree with the Respondent / Applicant that the Respondent genuinely disputed this new interest rate.  The reason being that if the said letter was actually written to the Petitioner as alleged and received on the 30/4/08, then the Respondent have not been diligent with its objections to the review of the interest rate as contained in exhibit B.  Otherwise, how does one explain the contents of exhibit D dated the 6/8/09 from the Respondent which made no reference to any objection on the new interest rate.  Suffice it to state that the alleged Respondent’s letter was written before the Petitioner’s letter of review of interest rate which letter is dated the 30/12/2008. I also agree with the Petitioner’s counsel’s contention that there is nothing in the said exhibits A – A2 which show that the alleged letter was received by the Petitioner. There is neither the stamp of the Petitioner nor name on the copy of the letter as the person who received the alleged letter of dispute.
To my mind, the so called exhibits A – A2 is but an afterthought from the Respondent / Applicant to either buy time for the repayment of the facility or to escape liability for the payment of same.

The alleged disputed debt was clearly resolved by the trial court in the portion of the ruling quoted above.  How else could anyone fault such logical conclusion arrived at by the trial court?  Can one dispute what had not come into existence?  The alleged letter disputing interest was written before interest rate was increased.  Even the woman selling vegetables at Sangross market will shout HABA!  If that is the basis of the disputed debt then, in my opinion, there was no dispute.  In any case, the Appellant had admitted the debt in Exhibit D before the trial court, part of which states as follows:

“Refer to your letter dated 4th August 2009 as regards our indebtedness to the bank. We have been making frantic effort to offset the debit balance in our account but sincerely business has really been epileptic coupled with huge loss encountered last year occasioned by drop in product price which has hindered our repayment plans. However, we are working out modalities for repayment, the account has not been active due to the challenges experienced but it is gradually picking up transactions will commence back which will aid in our payment of the indebtedness to your bank.”

    The dispute if any must be within the parameters of disputing a debt i.e. bonafide and on substantial grounds. The Appellant must put forward facts which would satisfy the court that there is something which ought to be looked into in the same action or some other proceedings. A real dispute must touch on the substance of the debt in its material particulars such as showing that part of the debt had been settled. Another way of disputing a debt is by showing that the amount due requires the taking of an account to determine. There should be evidence of such disputation after a demand letter is served, one of the conditions of invoking the jurisdiction of the court in winding up petition. The Appellant therefore is not disputing the debt.

Furthermore, the Respondent being a lending institution is entitled to charge interest.  In the award letter, Exhibit A (attached to the petition for winding up)  the power to alter or review the terms and conditions of the facility  from time to time unilaterally was given to the Respondent who utilized same and duly informed the Appellant (as seen in exhibit B to the Respondent’s affidavit dated 11/4/11).  Interest charges cannot be termed as arbitrary when done within the rates agreed upon.  The Appellant did not expect that the loan will be interest free when it took the loan for business purposes. I do not find any merit in the argument of the Appellant that the debt was disputed and therefore the trial court lacked jurisdiction.

    The second leg to issue is that the Appellant is solvent and operates as a going concern.  In the provisions of the Act reproduced above, there was none that said anything on the solvency of a company sought to be wound up.  Indeed, if a company is solvent, the question that arises is why it cannot pay its debt.  The answer is obvious; no going concern would deliberately refuse to repay its debt except it is unable to do so and its inability is because it is insolvent.  The letter (Exhibit D) from the Managing Director of the Appellant admitted that the Appellant was having problems.

    A winding up order can be made when a solvent company refuses to pay its debts and when conditions precedent as stated in the Act exists.  No condition outside the ingredients stipulated in the Act can stop the making of an order of winding up.  If the Appellant is a going concern, it should have been making periodical payments.  What is obvious here is that for a long time it could not make any payment.  Having failed to repay its debts and the Respondent having satisfied the requirements of the Act, the jurisdiction of the court was properly activated and this issue is resolved against the Appellant.  The trial court has jurisdiction to hear the winding up petition.

ISSUE TWO:
Here the Appellant contended that the trial judge erred by unilaterally raising the issue of the admissibility of Exhibit A1 and A2 in its ruling without inviting parties to address the court thereby denying the Appellant its right to fair hearing, SALU V EGEIBON (1994) 6 NWLR (PT 348) 23, ADIGUN V AG OYO STATE (1987) 1 NWLR (PT 53) 678.  That when a court raises a matter germane to the resolution of the case before it, it is incumbent that parties are given an opportunity of being heard, referred to BONKOLANS INVESTMENT LTD & ORS V CENTRAL SECURITIES CLEARING SYSTEM LTD & ORS (2010) 5 NWLR (PT 1186) 182, BHOJSONS PLC V DANIEL – KALIO (2006) 5 NWLR (PT 973) 330. The Appellant thereafter stated that the Respondent’s counter-affidavit to the Appellant’s preliminary objection merely stated that the amount disputed is a negligible and insignificant amount of the total debt owed.  It submitted that the court is not competent to make a case for parties and that the lower court erred for not calling on parties to address it or give oral evidence in order to resolve the conflict, referred to the following cases; LONGE V FIRST BANK OF NIGERIA PLC (2010) ALL FWLR (PT 525) 258, STATE V OLADIMEJI (2003) FWLR ( PT 175) 395, UNION BANK OF NIGERIA PLC V ASTRA BUILDERS (W.A) LTD (2010) 5 NWLR (PT 1186) 1, EFFIOM V CROSIEC (2010) 14 NWLR (PT 1213) 133.

    On the other hand, the Respondent submits that the trial judge did not raise the issue suomotu but it was the Respondent that informed the court on the peculiarities of Exhibit A1 and A2, the letters relied on by the Appellant to show that the Appellant’s letter dated April 24, 2008 was earlier than the Respondent’s letter of December 30, 2008 to review the interest rate.  Further submitted that since the Appellant never denied this allegation, it is deemed admitted, cited BELLO V AG LAGOS STATE (2007) 2 NWLR (PT 1017) 155. Hence, it urged the court to dismiss the appeal.

However, the Appellant in its reply brief denied the contention of the Appellant and stated that the Respondent never raised the issue of the admissibility of Exhibit A1 and A2 but it was the court that suomotu raised same.

RESOLUTION:
The Appellant contends that the trial judge unilaterally raised the issue of the admissibility of Exhibit A1 and A2 thereby denying them a fair hearing.  These are letters attached to the Appellant’s preliminary objection.  The Appellant alleged that the court decided on its admissibility without giving it or both parties a hearing.  The trial court considered the letters in its ruling and said:

“However, the alleged letters of the Respondent to the Petitioner disputing the COT charged was dated the 24th April, 2008 as contained in the Respondent / Applicant’s exhibit A – A2 more than 8months before the petitioner / respondent’s letter dated 30th December, 2008 to notify the Respondent on the review of interest rates as in exhibit B …………………………………………………………………….……………………………………………………………….
To my mind, the so called exhibits A – A2 is but an afterthought from the Respondent/Applicant to either buy time for the repayment of the facility or to escape the liability for the repayment of same.”

The Appellant contended further that the trial court raised the issue suomotu.  The law is settled that a judge is not allowed to raise any issue suomotu and proceed to resolve same without calling on parties to be heard on it.  See the case of OMOKUWAJO VS F.R.N. (2013) 9 NWLR (PT.1359) 300.  Did the trial judge raise the issue of Exhibits A – A1 suomotu in this case?  The record of appeal is replete with the parties mentioning the said exhibits in their respective affidavits and written addresses.  The Respondent denied receiving the exhibits and in its written submissions also drew the attention of the trial court to the inconsistencies in the submissions of the Appellant. The trial court then dutifully resolved whether the said exhibits have weight. The issue was not that of admissibility but weight.  The trial court did not strike out the said exhibits, it analyzed the evidence and concluded it had no weight and was of value to the Appellant. Evaluation of evidence is simply the assessment of the piece of evidence so as to give it value.  Generally, the trial court has two duties in respect of evidence.  The first duty is to receive evidence to make it part of the record and the second duty is to assess and ascribe value to it.  In the second process, the court could arrive at the conclusion that the evidence is worthless or profitable to the party relying on it.  A finding is therefore arrived at after the two steps listed above.  The Appellant’s contention is far from the truth, it is a misapprehension of the law of documentary evidence.  Admissibility is different from weight to be ascribed to the document upon evaluation, see the case of N. O. MOTANYA & ORS V ELIJAH ELINWA &ORS (1994) LPELR – 1919 (SC) where the apex court held:

“It must be noted at once that the legal admissibility of a piece of evidence is one thing, while the weight the court would attach to such evidence after it has been admitted is quite another thing.  Similarly the competence of a particular person to give in a particular proceeding is a different thing from what weight the court will give to the evidence of such a witness.”

The Appellant is not correct in alleging the trial court suomotu raised the issue of Exhibit A – A2.  The issue was raised by the Respondent and the Appellant reacted to it before the trial court resolved same. The Respondent had said they did not receive the said letters from the Appellant. That was when the said letter was now annexed to a further affidavit in support of the preliminary objection.  They were not so annexed to the initial affidavit in support of the Preliminary Objection. If they were in existence from the onset why then were they not attached to the affidavit in support of the Preliminary Objection? In any case the date told a lie about the document itself and therefore, no reasonable tribunal or court would place weight on it.  Evaluation of evidence is the duty of a trial court.  In the absence of a clear order striking out the said exhibits, the exhibits cannot be said to have been rejected in evidence.  In any case, the preliminary objection was determined on affidavit evidence and their annexures.

     Was there conflict in the two affidavits?  It is trite that when there is a conflict in the affidavits of the contending parties, the trial court will do well to call for oral evidence in order to reconcile the conflict, see SHITTA – BEY V. A.G. FED. (1998) 10 NWLR (PT.570)392.  Was there any conflict in the affidavits of the contending parties herein?  The trial judge in his ruling had said:

“I agree with the Petitioner’s counsel’s contention that there is nothing in the said exhibits A-A2 which show that the alleged letter was received by the Petitioner. There is neither the stamp of the petitioner nor the name on the copy of the letter as the person who received the alleged letter of dispute.” See page79 of the record.

    What then is the conflict?  I see none.  What the trial judge did was to evaluate the exhibits annexed by the Appellant which supposedly showed that it contested the issue of interest rate.  The trial court found them unreliable without proof of receipt by the Respondent.  Furthermore, the letter to challenge increase in interest rate was written before the interest rates were actually increased.  It cannot by any stretch of argument have weight and the trial court was right by not putting any weight on it.  I also do not see any conflict in the affidavits that would have required oral evidence. The contention in issue two is nothing but empty wind.  It is not made out and is hereby resolved against the Appellant.

    In all, the appeal herein lacks substance and it fails.  It is hereby dismissed.  I affirm the decision of the court below and award N30,000.00 as costs in favour of the Respondent.

SIDI DAUDA BAGE: 

I have read the judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA. My learned brother has dealt with the issues submitted for determination in this appeal. I also concur that this appeal herein lacks substance and it fails. It is hereby dismissed by me.

I abide by the consequential order made as to costs.

SAMUEL CHUKWUDUMEBI OSEJI:

I have been privileged to read the draft copy of the lead judgment just delivered by my learned brother Y. B. NIMPAR JCA.

The issues in contention have been properly and exhaustively addressed and I agree with the reasoning and conclusion reached therein. I have nothing extra to add.

I also order that the appeal is hereby dismissed.

I abide by the consequential orders made in the lead judgment including that of costs.

CHIEF NELSON IMOH
K. I. MARCUS                        
A. F. ETUK (MRS)