RODETHORNE (NIG) LTD & ANOR v. AMCON (2020)

RODETHORNE (NIG) LTD & ANOR v. AMCON

(2020)LCN/15199(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/A/1117/2019

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. RODETHORNE NIGERIA LIMITED 2. ALHAJI ABULLAHI BABAMMA UMAR APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON) RESPONDENT(S)

RATIO

WHETHER OR NOT A CONTRACT MAY BE DISCHARGED BY WAIVER

It is settled law that a contract may be discharged by waiver. One party may expressly or by conduct waive his rights to a contract, and such waiver is effective and binding on the party that waived the right as he may be estopped from insisting on that right. If a party leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him so to do. See generally UNITED CALABAR & CO VS. ELDER DEMPSTER LINES LTD (1972) ALL NLR 681; NBCI VS. INTEGRATED GAS NIG. LTD (2005) 4 NWLR (PT. 916) 617; ARIORI VS. ELEMO (1983) 1 SCNLR 1; AUTO IMPORT EXPORT VS. ADEBAYO (2005) 19 NWLR (PT. 959) 44; N. U. B. LTD VS. FAMBA PET. CO. LTD (2006) 12 NWLR (PT. 992) 98; EZOMO VS. NNB PLC (2007) ALL FWLR (PT. 368) 1032. PER IDRIS, J.C.A.

DEFINITION OF A “BENEFICIAL OWNER”

A beneficial owner is one recognised in equity as the owner of something because use and title belong to that person even though legal title may belong to someone else. See BLACKS LAW DICTIONARY 8TH EDITION. The beneficial owner is the individual or entity that enjoys the benefits of owning an asset, regardless of whose name the title of the property or security is in. PER IDRIS, J.C.A.

WHETHER OR NOT A PARTY WHO CLAIMS INTEREST ON A SUM OF MONEY HAS THE DUTY TO PLEAD AND PROFFER CREDIBLE EVIDENCE IN PROOF THEREOF

The law is that a party who claims interest on a sum of money has the duty to plead and proffer credible evidence in proof thereof. See BALOGUN V. E.O.C.B. NIG LTD (SUPRA). Claimant pleaded in paragraph 12 of their statement of claim and attached relevant exhibits stipulate and distinguish the debt owed and the interest rate. The Court does not have to make any calculation in the chambers. A breakdown of such calculation is only required when the interest and debt have not been distinguished or when the account books have to be examined to deduce such evidence. See BORNU HOLDING CO. LTD V. BOGOCO (SC 93/1970) [1971] NGSC 38 (SUPREME COURT); YESUFU V. ACB (1976) 1 – 2 SC 49; (1981) 12 NSCC 36; HABIB NIGERIA BANK LTD V. GIFTS UNIQUE NIG. LTD (2004) 36 WRN 136; (2004) 15 NWLR (PT. 896) 408. PER OKORO JCA; WEMA BANK PLC V. OSILARU (2008) WRN (VOL. 4) 160 AT 170, P. 187; LINE 45 (CA).
Furthermore, where interest is being claimed as matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show an entitlement in the statement of claim. However, as the statement of claim supersedes the writ of summons, if even interest is not claimed on the writ, but the facts are pleaded in the statement of claim and evidence given which show entitlement thereto, the Court may, if satisfied with the evidence, award interests. See TEXACO OVERSEAS (NIG.) UN LTD V. PEDMAR (2002) 13 NWLR (PT. 785) 526 SC; RCC (NIG.) LTD V. RPC LTD (2005) 10 NWLR (PT. 934) 615 SC. PER IDRIS, J.C.A.

WHETHER OR NOT A CLAIMANT MUST SHOW ANY BASIS FOR THE CLAIM IN RESPECT OF POST JUDGEMENT INTEREST CLAIMED

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Federal High Court, Abuja delivered by Honourable Justice Ijeoma L. Ojukwu on 15th day of November, 2019 wherein the learned trial Judge entered judgment in favour of the claimant (Respondent herein) as follows:
1. An Order of this Court is hereby made foreclosing the Defendants’ ownership rights or title to assets and property whatsoever and wheresoever located particularly the asset known and referred to as No. 41 Kwame Nkrumah Crescent, Asokoro, Abuja (also known as Plot 1103, Cadastral Zone A4, Asokoro District, Abuja) covered by C of O no 457uw-1390z-59dcr-a46au-10.
2. An Order of injunction of this Court is hereby made restraining the defendants, their privies, agents or other legal-representatives from selling, disposing or otherwise dealing adversely with any of the assets or any other of the defendants’ property pending the realisation of the total sum owed and accrues interest.
3. Provided where there is sufficient funds or moveable property of the defendant found within the Federal Capital territory or the States to satisfy the judgment debt, cost and accrued interest, execution shall not issue against moveable property in this case. But if no moveable is sufficient the judgment debt, cost and accrued interest, the Claimant may apply to the Court for a Writ of execution against the immovable property in accordance with the law.
4. Claimant is awarded Post judgment interest at 10% of the sum of #299,058,750.
5. The Claimant having exercised their right to compromise on the sum under the AMCON Act and being that the Defendant had earlier paid the sum of #109,000,000 in the bid to settle the earlier amount agreed before the breach accrued, the said sum shall be deducted by the Claimant. (See pages 378 – 397 of the record of appeal).

The Appellants being dissatisfied with the judgment of the trial Court have now appealed to this Court by two (2) Notices of Appeal. The first Notice of Appeal is dated 20th November, 2019 and filed on the same date. (See pages 398 – 403 of the Record of Appeal) and the second is dated 10th December, 2019 and filed on the same date. (See the Supplementary Record of Appeal).

This Appeal was argued on the second Notice of Appeal dated 10th December, 2019 and filed on the same date.

The Appellants were customers of the defunct Intercontinental Bank Plc. Sometime on 6th April, 2011 the Respondent purchased the loan facility granted the Appellants as evidenced on Exhibit E. At the time of the said purchase the combined debt of the Appellants stood at 185,178,274.17 (One Hundred and Eighty Five Million, One Hundred and Seventy Eight Thousand and Two Hundred and Seventy Four Naira).

The said sum of #185,178,274.17 was negotiated and settled in the sum of #121,000,000.00, the said settlement is contained on Exhibit F dated 1st August, 2013 headed: RE: PROPOSAL FOR SETTLEMENT OF COMBINED DEBT OBLIGATION OF (A) RODETHORNE NIGERIA LTD (B) UMAR ABDULLAHI B. – (INTERCONTINENTAL BANK PLC).

When the Appellants could not liquidate the debt, the Respondent wrote demanding for the payment of the former principal and accrued interests.

The Respondent filed the matter at the trial Court on 19th February, 2016 and prayed the Court for the reliefs contained on pages 135 of the record of appeal.

The Appellants after proper service of the Writ of Summons and the Statement of Claim (General Claim) by order of the Court made on 25th February, 2019, filed their joint statement of defence dated 8th February, 2019. (See pages 263 – 270 of the record of appeal).

In the joint statement of defence the Appellants averred and led evidence that the loan purchased by the respondent was settled in the sum of #121,000,000.00 out of which it paid total sum of #109,000,000.00 leaving the outstanding balance of #12,000,000.00.

The Appellants further contended that the Respondent by virtue of the agreement (Exhibit F), is bound by the agreed sum of #121,000,000.00 and that the Respondent is bound by the terms of settlement agreed. They also contended that the Respondent had no power to charge interest and the charge of interest by the Respondent is unlawful, illegal, null and void. The Respondent did not file a reply to the Appellants’ joint statement of defence.

At the trial pursuant to the application of the Appellants’ counsel, the Court ordered for settlement of issues to be filed by parties pursuant to which the Appellants formulated three (3) issues for determination which was adopted by the Respondent’s counsel. (See page 285 – 286 of the record).

The Respondent called a witness and tendered Exhibits A – L while Exhibits M – Q was tendered through PW1 under cross examination. The Appellants also called a witness who testified and was cross examined. At the close of the trial, the learned trial judge delivered judgment on 15th November, 2019 (see pages 378 – 397). Dissatisfied with the judgment, the Appellants lodged this appeal.

At the hearing of the appeal, the parties adopted their respective briefs. The Appellants filed their brief on the 12th of December, 2019 and a reply brief on the 24th of January 2020 which was deemed properly filed and served on the 3rd of February 2020. The Respondent’s brief was also deemed as properly filed and served on the 3rd of February 2020.

In the brief filed by the Appellants, these issues were formulated for the determination of this Court as follows:-
1. Whether the honourable trial Court was not in error when it held that the defendants (appellants) are indebted to claimant (respondent) in the sum of N299,058,750 as outstanding balance and interest when there is no evidence to support the claim and the claimant did not expressly and specifically ask for judgment in the said sum. (GROUND TWO)
2. Whether the honourable trial Court was right when it held that the failure of the defendants to settle the agreed sum of N121,000,000 within 30 days was a default which amount to breach of contract and that by implication the sum agreed in the settlement proposal shall be revoked. When it is clear from the several correspondences between the parties that the claimant had waived its rights to revert to the original sum and did not plead breach of contract or that it had revoked, extinguished or cancelled the contract. (GROUND THREE)
3. Whether the honourable trial Court was right when it held that the claimant is entitled to charge interest until final liquidation of the loan on the basis of the Loan Purchase and Limited Servicing Agreement (Exhibit E) having entered into the shoes of the bank as beneficial owner of the rights, title and interest in the loan. (GROUND FOUR).
4. Whether the honourable trial Court was right when it held that the claimant as beneficial owner of the loan was right to charge interest rate of 15% having regard to the fact that by Exhibits A and B, Intercontinental Bank charged 19% and 20% interest rates respectively. (GROUND FIVE)
5. Whether the honourable trial Court was not in error when it held that the defendants admitted the interest charged by the claimant when clearly there is no such evidence of the admission before the Court. (GROUND EIGHT).
6. Whether the honourable trial Court was not in error when it held that the claimant need not demonstrate before the Court how it arrived at the amount of interest claimed as such is only necessary when the interest and debt have not been distinguished or when the account books have to be examined to deduce such evidence. (GROUNDS SIX & SEVEN)
7. Whether the honourable trial Court was not in error when it held that by virtue of the Asset Management Corporation of Nigeria Act, 2010, the claimant is entitled to continue to charge interest on the debt owed by the defendants until final liquidation. (GROUND NINE).
8. Whether the honourable trial Court was not in error when it omitted to properly evaluate the evidence before it and arrive at the conclusion that the defendants are only indebted to the claimant in the sum of N12,000,000.00 (Twelve Million Naira) (GROUND TEN).

Learned counsel for the Appellants whilst arguing the first issue raised for the determination of the Court contended that there was no evidence before the trial Court to justify the finding of the learned trial judge that the Appellants were indebted to the Respondent in the sum of #299,058,750 and that the Respondent did not expressly and specifically ask the Court to enter judgment in the said sum. That PW1 under cross-examination admitted that the outstanding balance from the total sum was #12,000,000.00, consequently, this Court was urged to resolve issue one in favour of the Appellants.

On the second issue, Appellants’ counsel argued that the Respondent did not plead or lead evidence of default, breach of contract or that the agreement in Exhibit F was revoked, extinguished and cancelled. That the Respondent had through Exhibits H, K, M, N, O, P and Q waived its rights as contained in Exhibit F, and that the Respondent had through these exhibits led the Appellants to believe that Exhibit F was still subsisting and that by the said exhibits, the Respondent had waived the 30 days period within which the Appellants were expected to pay. The Court was urged to resolve issue two in favour of the Appellants.

Arguing issues three, four, five and six together, the Appellants contended that not being parties to Exhibit E, they were not bound by the terms and conditions contained therein, and that there was no agreement that the Respondent shall charge interest on the loan until liquidation. It was further contended that even if the Respondent could charge interest by Exhibit E, the enabling statute establishing the Respondent did not give it such powers. That not being a financial institution, it could not keep charging interest on loans until liquidation.

The Appellants argued that by Exhibits A and B, the facility had a fixed expiry date and in the circumstances, the agreed interest rate would only be applicable from the date of the agreement up to the date of expiry of the facility. That the Respondent did not lead evidence that it charged 15% interest, and that the Appellants did not admit to the interest charged.

Learned counsel for the Appellant also argued that Exhibit F did not mention the percentage of interest to be charged, and that the issue first came into the picture from Exhibit H. That the Respondent did not demonstrate by calculations how it arrived at the amount it claimed as interest in the various exhibits tendered. The Court was urged to resolve the aforementioned issues in favour of the Appellants.

On the seventh issue, learned counsel for the Appellants argued that although Section 5(c) of the AMCON Act allowed the Respondent to collect interest, principal and capital due and the taking of collateral securing such assets on the loan purchased, it did not empower the Respondent to continue to charge interest on the loan purchased from the bank until liquidation.

On the final issue, it was argued that by the several exhibits before the trial Court, the Appellants had paid the sum of #109,000,000.00 out of the settled sum of #121,000,000.00 leaving the outstanding balance of #12,000,000.00. The Court was urged to hold that the Appellants are indebted to the Respondent in the sum of #12,000,000.00 only.

The Appellants urged this Court to allow this appeal and set aside the judgment of the lower Court dated 15th November, 2019. These authorities were relied on:-
CASES:
1. EKPENYONG & ORS VS. NYONG & ORS (1975) 2 S. C. 71
2. “K” LINE INC VS. K. R. INT. (NIG.) LTD (1993) 5 NWLR (PT. 292) 159 AT 183
3. AWOSILE VS. SOTUNBO (1992) 5 NWLR (PT. 243) 514 AT 529
4. C. C. C. T. & C. S. LTD VS. EKPO (2008) ALL FWLR (PT. 418) 198 AT 221, PARAS F – G
5. AFRO TECH. SERVICES LTD VS. MIA & SONS LTD (2001) FWLR (PT. 35) 643 AT 718, PARA D – E
6. UBA PLC VS. LAWAL (2008) ALL FWLR (PT. 434) 1548 AT 1563 PARAS E – F
7. TITILAYO VS. OLUPO (1991) 7 NWLR (PT. 205) 519 AT 543
8. ATANZE VS. ATTAH (1999) 3 NWLR (PT. 596) 647 AT 657 – 658
9. BORNU HOLDINGS LTD VS. BOGOCO (1971) 7 NSCC 321
10. HABIB BANK LTD VS. GIFTS UNIQUE NIG. LTD (2005) ALL FWLR (PT. 241) 234 AT 253 – 257, PARAS B – C
11. NYAME VS. FEDERAL REPUBLIC OF NIGERIA (2010) ALL FWLR (PT. 527) 618 AT 662, PARAS A – F
12. BORNU HOLDINGS LTD VS. BOGOCO (1971) 7 NSCC 321
STATUTE:
ASSET MANAGEMENT CORPORATION OF NIGERIA ACT, 2010

The Respondent formulated these issues for the determination of the Court:-
a. Whether or not going by the state of pleadings of the parties and evidence led on both sides, the learned trial judge was right in granting the sum of N299, 058,750 (Two Hundred and Ninety Nine Million, Fifty Eight Thousand, Seven Hundred and Fifty Naira) only as the outstanding balance owed by the Appellants less the sum of N109, 000,000.00 (One Hundred and Nine Million Naira) only already paid by them.
b. Whether or not the Respondent Corporation not being a commercial bank is entitled to charge interest on the unpaid balance of the sum due and payable by the Appellants.

The Respondent has argued on issue one that the Appellants are in breach of the contract contained in Exhibit F which entitled the Respondent to either elect to carry on with the agreement despite the breach or treat the agreement as cancelled, extinguished or revoked. That the Respondent was not bound by the negotiated sum of #121 Million since the Appellants did not take the window opened by Exhibit F and that the parties were now bound by the sum due before the botched negotiation which was the sum of #185,178,274.17 being the principal sum as per Exhibit E.

Referring to Exhibit F, it was argued that it entitled the Respondent to charge 15% interest on the sum and from 2011 till 2015 when the matter finally came to the Court for adjudication.

This Court was urged to resolve the first issue in favour of the Respondent.

On the second issue, learned counsel for the Respondent argued that by a combined reading of Sections 1, 4, 5 and 6 of the AMCON Act, it had the statutory power to charge interest. That by Exhibit F, it is clearly stated at the second page of paragraph 5 that the Respondent could charge interest, and that the Appellants accepted the said term by signing the memorandum of acceptance and by Exhibit G.

The Court was urged to resolve the second issue in favour of the Respondent and dismiss the appeal. Reliance was placed on the following authorities:-
CASE LAW:
1. AJAGBE VS. IDOWU (2011) 37 WRN PG 1 AT 19 LINES 30 – 35
2. OBAJIMI VS. ADEDIJI (2008) 5 WRN PG 172 AT 184 – 185 LINES 45 – 10
3. OYEWALE VS. LAWAL (2008) 37 WRN 128
4. SUBERU VS. ATIBA IYALAMU S. L. LTD (2008) 6 WRN PG. 151 AT 163 LINE 40 – 45

ADDISON UNITED (NIG.) LTD VS. LION OF AFRICA INS. LTD (2010) 52 WRN PG 104 AT 130 LINES 5 – 10
6. BEST (NIG.) LTD VS. BLACKWOOD HODGE (NIG.) LTD (2011) 13 WRN PG 1 AT 20 LINES 35 – 40
7. CARLING INT’L (NIG.) LTD VS. KEYSTONE BANK LTD (2017) 9 NWLR (PT. 1571) PG. 345
8. TILEY GYADO & CO. (NIG.) LTD VS. ACCESS BANK PLC (2019) 6 NWLR (PT. 1669) PG 399
9. MAINSTREET BANK CAPITAL LTD VS. NIG. RE (2018) 14 NWLR (PT. 1640) PG 423
10. INTERDRIL (NIG.) LTD VS. UBA PLC (2017) 13 NWLR (PT. 1581) PG 52
11. MASTER HOLDINGS (NIG.) LTD VS. OKEFIENA (2011) 38 WRN PG 50
12. ADETORO VS. UBN PLC (2008) 12 WRN PG 113
13. NAGEBU CO (NIG.) LTD VS. UNITY BANK PLC (2014) 7 NWLR (PT. 1405) PG 42

BOOKS & STATUTES:
1. OXFORD ADVANCED LEARNERS DICTIONARY, 7TH EDITION
2. BLACK’S LAW DICTIONARY, 8TH EDITION
3. I. E. SAGAY, “NIGERIAN LAW OF CONTRACT” 2ND EDITION, 2011 REPRINT (SPECTRUM BOOKS)
4. ASSET MANAGEMENT CORPORATION OF NIGERIA ACT, 2010

In the Reply brief, learned counsel for the Appellants argued that Exhibits M, N, O, P and Q were admitted without objection from the counsel for the Respondent, and that the issue of their admissibility could not be raised at this stage, and were not marked “without prejudice”.

The Court was urged to allow the appeal and set aside the judgment of the lower Court dated 15th November, 2019. These further authorities were cited:-
CASES:
1. ANAGBADO VS. ALHAJI IDI FARUK (2018)_LPELR – 44909 SC
2. ALADE VS. OLUKADE (1976) 2 SC 183 AT 119
3. RAIMI VS. AKINTOYE (1986) 3 NWLR (PT. 26) 97
4. KAMALU VS. UMUNNA (1997) 5 NWLR (PT. 505) 321
5. ONYENGE VS. EBERE (2004) 14 NWLR (PT. 889) 20
6. NWANGWA VS. UBANI (1997) 10 NWLR (PT. 526) 559 AT 572 E – F
STATUTE:
1. COURT OF APPEAL (FAST TRACK) PRACTICE DIRECTIONS 2014
2. EVIDENCE ACT

Having reviewed the arguments of the parties as captured in their respective briefs, I shall in the determination of this appeal adopt the issues that were formulated by the Appellants in their brief. The issues again are:
1. Whether the honourable trial Court was not in error when it held that the defendants (appellants) are indebted to claimant (respondent) in the sum of N299,058,750 as outstanding balance and interest when there is no evidence to support the claim and the claimant did not expressly and specifically ask for judgment in the said sum. (GROUND TWO)
2. Whether the honourable trial Court was right when it held that the failure of the defendants to settle the agreed sum of N121,000,000 within 30 days was a default which amount to breach of contract and that by implication the sum agreed in the settlement proposal shall be revoked. When it is clear from the several correspondences between the parties that the claimant had waived its rights to revert to the original sum and did not plead breach of contract or that it had revoked, extinguished or cancelled the contract. (GROUND THREE)
3. Whether the honourable trial Court was right when it held that the claimant is entitled to charge interest until final liquidation of the loan on the basis of the Loan Purchase and Limited Servicing Agreement (Exhibit E) having entered into the shoes of the bank as beneficial owner of the rights, title and interest in the loan. (GROUND FOUR).
4. Whether the honourable trial Court was right when it held that the claimant as beneficial owner of the loan was right to charge interest rate of 15% having regard to the fact that by Exhibits A and B, Intercontinental Bank charged 19% and 20% interest rates respectively. (GROUND FIVE)
5. Whether the honourable trial Court was not in error when it held that the defendants admitted the interest charged by the claimant when clearly there is no such evidence of the admission before the Court. (GROUND EIGHT).
6. Whether the honourable trial Court was not in error when it held that the claimant need not demonstrate before the Court how it arrived at the amount of interest claimed as such is only necessary when the interest and debt have not been distinguished or when the account books have to be examined to deduce such evidence. (GROUNDS SIX & SEVEN)
7. Whether the honourable trial Court was not in error when it held that by virtue of the Asset Management Corporation of Nigeria Act, 2010, the claimant is entitled to continue to charge interest on the debt owed by the defendants until final liquidation. (GROUND NINE).
8. Whether the honourable trial Court was not in error when it omitted to properly evaluate the evidence before it and arrive at the conclusion that the defendants are only indebted to the claimant in the sum of N12,000,000.00 (Twelve Million Naira) (GROUND TEN).

RESOLUTION OF ISSUES ONE, TWO AND EIGHT
In resolving the issues hereinabove, the learned trial judge held at pages 386 – 389 of the record of appeal as follows:-
“On the first issue, it is not in dispute that the defendants owed the original debtors, Intercontinental Bank, the sum of #185,178,274.17. The claimant bought the loan from Intercontinental Bank and proposed the sum of #121,000,000 to be paid by the defendants. The defendants agreed to this sum.
I have perused the exhibits carefully the terms of the repayment are stipulated clearly in Exhibit F, which is the “Proposal for Settlement”. One of the key provisions is the Default Clause and it states as follows:
“All concessions granted under this Terms of Settlement shall be revoked and the collateral sold or taken over by the Corporation if the debtor defaults. Default shall be deemed to have occurred under any or all of the following conditions:-
1. The offer is not accepted within 2 weeks.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Settlement sum of #121,000,000.00 or part thereof remain unpaid after 30 days.
3. Failure to comply with any other covenant of this Terms of Settlement.
When default occurs, the exercise of the rights provided for in this settlement shall be at the sole discretion of AMCON.”
Now, what is the purpose and implication of a Default Provision in the contract/agreement? Generally, a Default is the omission or failure to perform a legal or contractual duty especially the failure to pay a debt when due. See BLACKS LAW DICTIONARY 8TH EDITION. It sets out the lender’s remedies if the borrower breaches the clauses in the loan agreement.

The claimant stipulated clearly that a default is failure to settle the amount within 30 days. 30 days from the date of this settlement elapsed on the 1st Day of September, 2013. As of today the defendants have not paid the proposed settlement sum of #121,000,000, despite accepting the terms by signing the Proposal for Settlement, and adopting it in their Board Resolution. See Exhibit G.
This is clearly a default, and this default amounts to a breach of contract. A breach of contract means the party has acted contrary to the terms of the contract either by non-performance of a term or performing it not in accordance with its terms. See ADDISON UNITED (NIG) LTD V LION OF AFRICA INS. LTD (2010) 52 WRN PG 104 AT 130 LINES 5 – 10. The defendants by paying only a portion (#109,000,000) of the #121,000,000 (agreed sum) have breached this contract.

The implication of default according to the Terms of Settlement is that all the terms of settlement shall be revoked. In view of defendants’ protracted default claimants are no longer bound to the negotiated sum. I therefore agree with the claimant that they are at liberty to either carry on with the contract terms or to revoke, extinguish or cancel the contracts. See BEST (NIG) LTD V BLACKWOOD HODGE (NIG) LTD (2011) 13 WRN PG 1 AT 20 LINES 35 – 40.

As at 2014, when the defendants had not offset the debt, the claimants continued to charge the settlement of #121,000,000 with interest of 15% per annum. The defendants never argued with this sum. I note that several extensions were granted to the defendants. Sometime in April 2015, the claimants chose to revert back to the original sum owned #185,178,274.17. See Exhibit L. Given the defendants’ breach, I see no argument with claimant’s decision to revert back to the original sum.
It is therefore the Court’s humble opinion on this first issue that the claimants are not bound by the sum on the settlement proposal but rather are entitled to charge the sum of #185,178,274.17.”

The learned trial judge in my view correctly stated the state of the law on the issues raised, but did not apply the law correctly to the facts before the Court.

There is no doubt that by Exhibit F, the parties herein agreed a settlement sum of #21,000,000.00 to be paid by 31st August 2013. This settlement agreement was approved by the board of the 1st Appellant via Exhibit G. The following facts appear clear from the evidence laid before the Court:-
1. By Exhibit H dated May 21st, 2014 the Respondent demanded from the Appellants the sum of #134,575,205.47 being the settlement amount of #121,000,000.00 and interest of #13,575,205.00 arising from the failure of the Appellants to honour the terms of Exhibit F. By Exhibit H, the Respondent demanded that payment be made on or before 4^th June, 2014.
2. By Exhibit J dated 12th June, 2014, the Appellants pleaded for an additional 120 days extension within which to pay the outstanding settlement sum.
3. By Exhibit K dated 17th June, 2014, the Respondent granted an extension of 90 days within which the Appellants should pay the settlement sum of #121,000,000.00 and interest of #19,641,780.81 representing interest at 15% from 1st September, 2013 to 30th September, 2014.
4. By Exhibit L dated 8th April 2015, the Respondent revoked the concessionary offer made to the Appellants, but demanded that full repayment be made within 30 days from the date of the letter (i.e. 8th April, 2015).
5. By Exhibit M dated 24th February 2016, the Respondent demanded for the sum of #178.220,287.15 from the Appellants representing the settlement sum and interest at 15% per annum until full liquidation.
6. By Exhibit N dated 6th June, 2016, the Respondent acknowledged receipt from the Appellants of the sum of #100,000,000.00, and demanded for the outstanding balance of the sum of #78,220,287.15 representing principal sum and interest.
7. By Exhibit O dated 6th March, 2017, the Respondent acknowledged receipt of the sum of #107,000,000.00 from the Appellants and demanded for the outstanding balance of #65,069,041.00.
8. By Exhibit Q dated 30th May, 2017, the Respondent acknowledged receipt of the sum of #109,000,000.00 from the Appellants and demanded for the balance of #63,520,273.97, representing sum outstanding including interest.
9. By Exhibit P dated 4th October, 2017, the Respondent acknowledged receipt of the sum of #109,000,000.00 from the Appellants and demanded for the repayment of the balance of #76,427,671.23 being the concessionary settlement amount plus interest.

It appears from the above facts that the Respondent never treated the agreement between it and the Appellants as terminated or revoked after the expiry of the repayment term in Exhibit F. In fact PW1 testified under cross-examination which can be found at page 365 of the record of appeal as follows:-
“From the documents the sum of #121,000,000.00 was settled that the Defendant was compared to pay; The Defendants have paid #109,000,000.00 out of the sum.
It is admitted that #12,000,000.00 is the outstanding balance from the total sum.”

The Appellants couldn’t therefore have been liable to the Respondent in the sum of #299,058,750 as held by the learned trial judge.

The Respondent had in my view, and by the Exhibits referred to hereinabove waived the rights referred to and relied upon by the learned trial judge. The Respondent had clearly led the Applicants to believe that the sum settled was still subsisting.

It is settled law that a contract may be discharged by waiver. One party may expressly or by conduct waive his rights to a contract, and such waiver is effective and binding on the party that waived the right as he may be estopped from insisting on that right. If a party leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him so to do. See generally UNITED CALABAR & CO VS. ELDER DEMPSTER LINES LTD (1972) ALL NLR 681; NBCI VS. INTEGRATED GAS NIG. LTD (2005) 4 NWLR (PT. 916) 617; ARIORI VS. ELEMO (1983) 1 SCNLR 1; AUTO IMPORT EXPORT VS. ADEBAYO (2005) 19 NWLR (PT. 959) 44; N. U. B. LTD VS. FAMBA PET. CO. LTD (2006) 12 NWLR (PT. 992) 98; EZOMO VS. NNB PLC (2007) ALL FWLR (PT. 368) 1032.

In the circumstances, issues one, two and eight are resolved in favour of the Appellants against the Respondent.

RESOLUTION OF ISSUES THREE, FOUR, FIVE, SIX AND SEVEN
In resolving these issues, the trial judge held as follows:-
“It is an acceptable practice that interest can be charged as of right where it is the mercantile custom or contemplated as a matter of agreement between the parties. Interests are also normally chargeable in banking transactions, and customers are bound to pay stipulated interests. See INTERDRIL (NIG) LTD V. UBA PLC (2017) 13 NWLR (PT. 1581) PG 52 AT PG 7; MASTER HOLDINGS (NIG) LTD V. OKEFIENA (2011) 38 WRN PG 50 AT 68.
The Court will usually take cognisance of the agreement between the parties as well as the custom of the trade. See ADETORO V. UBN PLC (2008) 12 WRN PG 113 AT 157 LINES 25 – 35. I have taken cognisance of the agreement between the claimant and defendants as well as customary practice and it is clear by virtue of the settlement proposal and subsequent documents i.e. board resolution, that parties were in agreement that claimant’s offer of #121,000,000 made as full and final debt, as well as the conditions stipulated thereof would be revoked where the conditions were not met. Upon breach of agreement the claimants were no longer bound to the sum agreed to in the proposal. They chose, being well within their rights, to revoke the offer. See BEST (NIG) LTD V. BLACKWOOD HODGE (NIG) LTD (2011) 13 WRN PG 1 AT 20 LINES 35 – 40.
Defendants argued that the interest rate was never stated in the Settlement Proposal. The offers of the Settlement Proposal are no longer prevailing upon claimant and Defendants. The interest rate has only been charged as a result of the breach of the terms of the Settlement Proposal. In any event, the Defendants having breached the terms of the Settlement Proposal, the claimants are entitled to charge interest until final liquidation of the loan. See NAGBEU CO (NIG) LTD V. UNITY BANK PLC (2014) 7 NWLR (PT. 1405) PG 42 AT 83.
Let me refer to Exhibit E, the Loan Purchase and Limited Servicing Agreement. Clause 2.2 which stipulates the scope of sale and purchase states that the Loan Rights shall include all of the banks rights, title and interests. The Bank’s rights and interests include their claim to the loan and the accrued interest. This is what claimant is entitled to. Clause 2.5 of the same document also provides that AMCON, i.e. the claimant, has the beneficial ownership of the rights, title and interests of the Bank in and to each Loan Rights and each related Loan Document, Collateral Document, any participation or similar agreement representing an interest in any of the foregoing and all and any other security interests in any Collateral. One of the bank’s (Intercontinental Bank) rights is to collect interest on the loan.
A beneficial owner is one recognised in equity as the owner of something because use and title belong to that person even though legal title may belong to someone else. See BLACKS LAW DICTIONARY 8TH EDITION. The beneficial owner is the individual or entity that enjoys the benefits of owning an asset, regardless of whose name the title of the property or security is in. Based on this, what can I say? The document clearly shows that the rights, including interest to the loan have been vested in the claimant. I do believe that the interests on the loan is part of the rights enjoyed by Intercontinental Bank, and therefore should inure to, and be enjoyed by the claimant.
Further, Section 5(c) of the AMCON Act 2010 states that ‘The functions of the Corporation shall be to – hold, manage, realise and dispose of eligible bank assets (including the collection of interest, principal and capital due and the taking over of collateral securing such assets) in accordance with the provisions of this Act. This provision to my mind means that the claimant has the function to collect interest due to the bank. Were Intercontinental Bank still to collect the debt, the interest would have been accruing and they would have had to charge the defendants. This is what the claimants are doing. I see no reason for argument or contention.
It was also the Defendant’s argument that the interest rate was random, that there was no calculation of compound or simple interest, and there was no basis against what amount the interest is calculated. Let me draw counsel’s attention to the fact that the interest rate charged by Intercontinental Bank was 19% and 20% respectively on both loans. See Exhibits A and B. Given that the claimants have all the rights to the loan as the bank. This right I believe includes interest. The claimants also have rights as beneficial owners to the loan and interest which means that claimants are ordinarily entitled to charge 19% and 20% on the loan until complete liquidation. Claimants have however, charged 15%. I believe that charging this interest rate is within the claimant’s right.
With all due respect, I disagree with cases cited by counsel with respect to interest rate, and their assertion that a mathematical calculation was required. The law is that a party who claims interest on a sum of money has the duty to plead and proffer credible evidence in proof thereof. See BALOGUN V. E.O.C.B. NIG LTD (SUPRA). Claimant pleaded in paragraph 12 of their statement of claim and attached relevant exhibits stipulate and distinguish the debt owed and the interest rate. The Court does not have to make any calculation in the chambers. A breakdown of such calculation is only required when the interest and debt have not been distinguished or when the account books have to be examined to deduce such evidence. See

BORNU HOLDING CO. LTD V. BOGOCO (SC 93/1970) [1971] NGSC 38 (SUPREME COURT); YESUFU V. ACB (1976) 1 – 2 SC 49; (1981) 12 NSCC 36; HABIB NIGERIA BANK LTD V. GIFTS UNIQUE NIG. LTD (2004) 36 WRN 136; (2004) 15 NWLR (PT. 896) 408. PER OKORO JCA; WEMA BANK PLC V. OSILARU (2008) WRN (VOL. 4) 160 AT 170, P. 187; LINE 45 (CA).
Furthermore, where interest is being claimed as matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show an entitlement in the statement of claim. However, as the statement of claim supersedes the writ of summons, if even interest is not claimed on the writ, but the facts are pleaded in the statement of claim and evidence given which show entitlement thereto, the Court may, if satisfied with the evidence, award interests. See TEXACO OVERSEAS (NIG.) UN LTD V. PEDMAR (2002) 13 NWLR (PT. 785) 526 SC; RCC (NIG.) LTD V. RPC LTD (2005) 10 NWLR (PT. 934) 615 SC.

I must also note again, that the defendants had impliedly agreed to the interest rate of 15% from the 21st day of May 2014 by their acknowledgement and response when defendants informed them of the interest rate. See Exhibits H, J, K, L, M. See also BALOGUN V. E.O.C.B. (NIG) LTD (SUPRA). This interest rate has therefore not come as a surprise to the defendants.
In the light of the above, it is the firm but humble opinion of this Court that the interest rate charged till date by the claimant is not unlawful. All the evidence above suggest that the claimant is entitled to pay the sum of money #185,178,274.17 plus interest at 15% per annum. Had the defendants paid the reduced sums of #121,000,000 agreed to, within the stipulated time, this argument would not have arisen. See PINNEL’S CASE (1602) 5 CO REP 117.
Now, in terms of whether AMCON can enforce the asset, Section 6(k) of the AMCON Act (Amendment No. 2) Act, 2019 states that AMCON can ‘enforce any security, guarantee or indemnity’, 6(i) compromise any claim or forgive or forbear any debt or other obligation owed to the Corporation in respect a (sic) a specified class of eligible bank assets. Claimants have chosen the former option, they are well within their statutory rights.
Additionally, Section 35(1) of the AMCON Amendment Act 2019 states that the Corporation shall exercise all the rights and powers in relation to the eligible bank asset and any security connected to the eligible bank asset. Section 35(4)(a) provides that the Complainant shall take any action that the eligible financial institution could have taken to protect, perfect or enforce any security, interest, obligation or liability. One of the rights and powers the claimants have exercised, take action in Court to enforce the security deposited against the loan, here which is the property located in Asokoro.
As mentioned earlier, clause 2.5 of the Loan Agreement makes the claimant the beneficial owner of the loan and this includes the collateral tendered as security for the loan by the defendants. In the event of continued default of debt, the Bank would have no choice but to foreclose defendants’ ownership right to the collateral i.e. to say, the property in Asokoro.
Claimants have sought pre judgment interest of 22% and post judgment interest of 10% on the total sum owned. The general rule in common law is that pre judgment interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect. See ALFOTRIN LTD VS. ATTORNEY GENERAL, FEDERATION (1996) 9 NWLR (PT. 4750) 634; DIAMOND BANK LTD VS. PARTNERSHIP INVESTMENT CO. LTD (2009) 18 NWLR (PT. 1172) 67. I see no express agreement or course of dealing between the parties evidencing this. The basis of the claim of interest must be made manifest on the pleadings. The claimant has not shown any basis for the claim for pre-judgment interest.

With respect to Post Judgment interest, a claimant need not show any basis for the claim or lead any evidence in respect of the interest claimed. Post Judgment interest is discretionary and recognised by the Rules of Court. See ELIJAH ADEBIYI (TRADING UNDER THE STYLE OF DELOCK ASSOCIATION) & ORS V. NATIONAL INSTITUTE OF PUBLIC INFORMATION & ORS (2013) LPELR – 22628 (CA). The claimants were denied monies due to them by the defendants for some years, even after admitting liability to pay. The claimants are therefore entitled to post judgment interest. The Defendants who were given a compromise, by the claimant who downsized their debt, made an about face and sacrificed a good offer on the altar of craftiness. A proper case of shooting one’s self in the foot!
In the light of the above, I do not have any hesitation in holding that the defendants are indebted to the claimant in the sum of #299,058,750 as outstanding balance and interest and I so hold. However, the fact that the sum of #109,000,000.00 was paid was not denied. Premised on this, the claimants are entitled to exercise their right to defendants’ property in Asokoro, pending the realisation of the sum owed and accrued interest.”

I have examined Exhibit F which is the settlement agreement between the parties herein under the heading “Other Conditions” is clause 5 which provides as follows:
“5. Notwithstanding the terms of this offer, AMCON reserves the right to charge the lending rate in line with money market realities without notice or authorisation of Umar Abdullahi Babamma/Rodethorne Nigeria Limited.”

The above offer was accepted by the Appellants by Exhibit G.

The Respondent’s demand letters of 21st May 2014, 17th June 2014, 8th April 2015, 24th February 2016, 6th June 2016, 6th March 2017, 30th May 2017 and 4th October 2017 being Exhibits H, K, L, M, N, O, Q and P requested for the payment of the concessionary settlement amount plus interest at 15% per annum in line with Exhibit F. The Appellants never contested these figures and they cannot at this stage be allowed to contend that the Respondent cannot charge interest at the rate stated in their various correspondences. The Courts have held that silence in circumstances in which a reply is obviously expected will operate as an acceptance. See generally GWANI VS. EBULE (1990) 5 NWLR (PT. 149) 201; JOE IGA & CO VS. AMAKIRI & 4 ORS (1976) 11 SC 1; GLORYLUX ASSOCIATED IND. (NIG.) LTD VS. N.P.F.M.B. (1993) 7 NWLR (PT. 305) 341; VASWANI VS. JOHNSON (2000) 11 NWLR (PT. 679) 582; ABAJUE VS. ADIKPA (1994) 1 NWLR (PT. 322) 621.

The Appellants have argued that the Respondent is not empowered to continue to charge interest on the loan it purchased from the bank until liquidation. With due respect to learned counsel, I think this is not a correct statement of the law.

The objects of the Respondent is set out in Section 4 of the AMCON Act and it includes (a) to assist eligible financial institutions to efficiently dispose of eligible bank assets; (b) to efficiently manage and dispose of eligible bank assets, and (c) to obtain the best achievable financial returns on eligible bank assets acquired by the Corporation in pursuance of the AMCON Act having regard to certain specified matters. In pursuing and achieving its third object, the Respondent is required to have regard to certain specified matters to wit: (i) the need to protect, or otherwise enhance the long term economic value of those assets; (ii) the cost of acquiring and dealing with those assets; (iii) AMCON’s cost of capital and other costs; (iv) any guidelines or directions by the CBN; and (v) any other factor which AMCON may under Section 4(c)(v) of the AMCON Act, consider relevant to the achievement of its objects. By Section 4(c)(v) of the AMCON Act, the Respondent has a discretion as to the factors it can consider when making decisions regarding the purchase of assets. (See Sections 4(c)(i) – (v) of the AMCON Act). The functions of the Respondent particularly the functions under Section 5(c) of the AMCON Act which is to “hold, manage, realise and dispose of eligible bank assets (including the collection of interest, principal and capital due and the taking over of collateral securing such assets) when read with the provision of Section 4 of the same Act clearly empowers the Respondent to not only collect interest, but charge interest, especially lending rates in order to obtain the best achievable financial returns on eligible bank assets or other assets acquired by it in pursuance of the AMCON Act.

In the circumstances of this case, I resolve issues three, four, five, six and seven in favour of the Respondent against the Appellants.

Overall, this appeal can only succeed in part. As rightly contended by learned counsel for the Appellants in paragraph 8.6 of the Appellants’ brief of argument, “The Appellants are indebted to the Respondent in the sum of #12,000,000.00 (Twelve million Naira) only”, plus interest at 15% per annum. Consequently, that part of the judgment of the lower trial Court awarding post judgment interest of 10% of the sum of #299,058,750.00 is hereby set aside.

There shall be no order as to cost.

ADAMU JAURO, J.C.A.: I had the privilege of reading in advance the leading judgment just delivered by my learned brother, Mohammed Baba Idris, JCA. I am in complete agreement with the reasoning and conclusion contained therein to the effect that the appeal succeeds in part.

I adopt the said judgment as mine in allowing the appeal in part. I abide by all consequential orders made therein.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

Mohammed, Esq., with him, I. Garba, Esq. and K. Timber, Esq. For Appellant(s)

Nmerengwa, Esq. For Respondent(s)