Banking transactions form the lifeblood of modern commerce, yet their complexity often masks malpractices that, if left unchecked, erode public trust in financial institutions. The judiciary, through sound adjudication, plays a pivotal role in upholding this trust, especially in cases where banking practices conflict with regulatory guidelines. In disputes involving allegations of excessive or arbitrary charges, judicial reasoning must be not only procedurally

It is within this context that this article critiques the decision of the Court of Appeal in Union Bank of Nigeria Plc v. Origin Oil and Gas Ltd & 6 Ors. The decision, which overturned the well-reasoned judgment of the Federal High Court, merits scrutiny particularly in its treatment of expert testimony and documentary evidence vis-a-vis established evidential principles,

Brief facts of the case
The case originated from the Federal High Court, Lagos Judicial Division, where the Respondent, as Plaintiff, challenged the imposition of undue, arbitrary, and excessive charges into its Statement of account in respect of an Import Finance Facility granted by the Appellant bank. These charges, the Respondent contended, contravened Central Bank of Nigeria (CBN) Guidelines regulating interest and related banking charges.

The Respondent made several complaints on these charges which the Appellant failed to promptly consider and deduct. To substantiate its claim, the Respondent commissioned a forensic audit of its account. The auditor’s report revealed unlawful debits and prompted the Respondent to institute an action. At trial, the Respondent tendered the report and called the forensic accountant (PW2) as a witness. PW2 was cross-examined and his qualifications as well as the report’s content were not discredited.

In response, the Appellant during the proceedings applied for an independent forensic of the Respondents’ Statement of Account by CBN and same being unopposed was granted. The Report arising from the alleged audit of CBN was tendered in court by the Appellant upon a subpoena duces tecum without calling the official or any of the officials who prepared it to testify. Consequently, the CBN report was admitted from the bar into evidence without the benefit of cross-examination.

The trial court, guided by principles governing expert evidence, found the Respondent’s case credible and granted all its reliefs, relying significantly on the forensic report tendered through PW2 as supported by other pieces of evidence on record.

Dissatisfied, the Appellant appealed. The Court of Appeal overturned the decision of the Federal High Court, holding that PW2 lacked the requisite qualifications to be deemed an expert and placing reliance on the CBN report.

Flawed appraisal of expert evidence
One of the central issues before the Court of Appeal was the probative value to be accorded to two contrasting expert reports: one tendered through an examined witness, the other submitted without oral testimony. Section 68 of the Evidence Act defines an expert as: “A person specially skilled in any of the fields of foreign law, native law and custom, or of science or art, or in identifying handwriting or finger impression.” The Supreme Court in Barewa Pharm Ltd  v. FRN (2019) 9 NWLR (Pt. 1677) 331 reaffirmed that a person who possesses the requisite training or skill is qualified to offer expert opinion.

In this instance, PW2, a Chartered Accountant and Fellow of the Institute of Chartered Accountants of Nigeria, expressly stated in his sworn deposition that he was retained as a forensic auditor. The record reveals that his testimony was not discredited during cross-examination. It is trite that where the opposing party fails to dislodge the credibility of an expert witness under cross-examination, the court is entitled to rely on such evidence. See: Ya’u v. Dikwa (2000) LPELR-10138(CA).

Nevertheless, the Court of Appeal, while acknowledging that “PW2 may be knowledgeable as a chartered accountant and in forensics,” paradoxically held that “there are insufficient grounds to accord him the title of an expert witness.” This reasoning amounts to standing logic on its head.

To concede that a witness is versed in forensic accounting, yet deny him the title of an expert competent to conduct forensic analysis of a bank statement, is both inconsistent and unsustainable.

One cannot affirm the light and then deny its illumination. By such reasoning, the Court of Appeal sought to snatch away with the left hand what it had just bestowed with the right. It is a juridical sleight of hand that collapses under the weight of legal scrutiny.

Such judicial equivocation undermines the settled principle that once an expert’s qualifications are not effectively challenged, their testimony attracts probative value. See: Georgestone v Nya (2022) LPELR-57250(CA).

In fact, the Court of Appeal had in similar circumstances in the case of Heritage Bank Limited v. B.U Chima & Sons Ltd & Anor (2024) LPELR- 61937(CA) affirmed reliance on a similar expert opinion and held that; “It is the duty of the opposing counsel in appropriate cases, to cross-examine the expert witness effectively in order to raise doubt as to the witness expertise or competence. Where he fails to do this, the Court will be entitled to act on the uncontroverted testimony of the expert witness….”

The Learned Trial Judge rightly followed this settled position of the law in accepting and relying on the evidence of P.W 2. In sharp contrast, the Court of Appeal disregarded the unimpeached and unchallenged evidence of P.W 2 on the alleged ground of there being no sufficient basis for P.W 2 to be called an expert whilst also accepting at the same time an alleged independent expert report from CBN for which the makers were not even called not to talk of their qualification to present the Report being made known. What a paradox.

Improper reliance on an untested CBN report:
More troubling is the Court of Appeal’s preference for the CBN report, an untested document not introduced through a witness, over the scrutinised and tested forensic report of PW2. The appellate court justified its reliance on the CBN report on three grounds: (a.) That it was prepared pursuant to a court order; (b.) That the Respondent participated in the preparation process; and (c.) That it emanated from the regulatory authority whose guidelines were in issue.

While these factors may speak to the origin and context of the report, they do not cure the fundamental procedural flaw: the absence of cross-examination. The law is clear that the evidential value of documentary evidence is greatly diminished where the maker of the document is not called to testify and be cross-examined. The Supreme Court has held in numerous cases that cross-examination is the acid test of truth and fairness.

Moreso, the qualification of the particular official of the CBN that prepared the Report ought to be put to test before the Report can be found admissible as it is the law that before the opinion of a person put forward by a party in litigation as an expert, whether embodied in a Forensic report or in any other type of report, can be accorded any probative value by a Court of Law, the person must be called as a witness and his qualification as such expert must be demonstrated and tested in open Court. See the cases of Sani v Giwa (2016) LPELR-45494(CA) and Jalbait Ventures (Nig) Ltd & aAor Vs Unity Bank PLC (2016) LPELR-41625(CA).

With due respect, the Official of the CBN that prepared the Report is not exempted from this principle simply because he works with a regulatory agency or was called upon to tender the report by the order of court. In fact in not too dissimilar circumstances in the case of Fidelity Bank v Ibrahim (2017) LPELR-45417(CA) the report of a regulatory agency, EFCC was relied upon without calling the maker. The Report was disregarded as unreliable.

In Okorie Vs State (2018) 11 NWLR (Pt. 1629) 1, the Supreme Court emphasised that where competing expert opinions exist, preference should be accorded to that which was demonstrated to the satisfaction of good reasoning and has survived adversarial testing. The CBN report, for all its pedigree, was insulated from such scrutiny.

Furthermore, the report was not entirely exculpatory. It acknowledged that excessive charges were imputed into the Respondent’s account thus confirming, in part, the allegations raised.

In law and in equity, a party cannot choose and pick the portion of an exhibit the court shall consider and act upon. He can only lay emphasis on portions particularly relevant to him and not to fraternize with a portion of it and junk another portion. See the case of Ola Vs UNILORIN (2014) 15 NWLR (Pt. 1431) 453 at 483.

The report merely differed on the quantum and methodology from that of Respondents. That nuance required clarification through oral testimony, which the Appellant failed to provide. A document, no matter how official or seemingly neutral must speak through a witness if it is to be ascribed significant weight.

Conclusion:
The decision of the Court of Appeal in Union Bank of Nigeria Plc v. Origin Oil and Gas Ltd & 6 Ors marks a troubling departure from well-settled principles of evidence.

To declare the CBN Report “unimpeachable” when its makers were neither called to testify, nor subjected to cross-examination, nor their expertise established is to cloak it with an unearned aura of infallibility. In doing so, any errors, omissions, or flawed reasoning embedded within the Report are accepted, untested, as truth.

If left unchallenged, this judgment sets a dangerous precedent: that documents issued by regulatory bodies, once adorned with institutional gravitas, may bypass the crucible of judicial scrutiny. That notion is not only antithetical to the rule of law but subverts the very foundations of evidentiary fairness.

Worse still, it sends a chilling signal to litigants: that sworn and examined expert testimony, no matter how cogent or unshaken under cross-examination, may be displaced by unsworn, untested reports, shielded by the silence of their authors. This not only diminishes confidence in the judicial process but threatens to hollow out the safeguards against arbitrariness that the law so carefully builds.

Justice must not bend to the prestige of an institutional document, but rise to the rigor of its proof. It now falls to the Supreme Court to re-affirm the fundamental principle of the law that evidence must be weighed, not waved through, and that the law serves not institutions, but truth, fairness, and justice itself.
Somorin is the Principal Partner, Jide Somorin Chambers.