GRACELAND SERVICES & LOGISTICS LTD & ORS v. AMCON & ANOR (2022)

GRACELAND SERVICES & LOGISTICS LTD & ORS v. AMCON & ANOR

(2022)LCN/16756(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/IB/116/2020

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

GRACELAND SERVICES & LOGISTICS LTD & 2 ORS APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA & ANOR RESPONDENT(S)

RATIO

WHETHER OR NOT PARTIES ARE BOUND BY THE TERMS OF THEIR AGREEMENTS

The law is further settled that if parties enter into an agreement, they are bound by its terms. Neither the parties nor the Court is allowed to read into the agreement terms which are not agreed upon by the parties. See CONOIL VS. VITOL S.A. (2018) 9 NWLR (PT. 1625) 463, UWAH VS. AKPABIO (2014) 7 NWLR (PT. 1407) 472, HILARY FARMS LIMITED VS. M.I.V MAHTRA (2007) 14 NWLR (PT. 1054) 10 AND KOIKI VS. MAGNUSSON (1999) 8 NWLR (PT. 615) 492. PER OJO, J.C.A.

WHETHER OR NOT A CONTRACT CAN ENFORCE A RIGHT OR IMPOSE OBLIGATIONS ON ANY PERSON WHO IS NOT A PARTY TO IT

It is trite that a contract cannot confer any enforceable right or impose any obligation arising under it on any person other than the parties to it. This is what is generally referred to as privy of contract. A contract is a private relationship between the parties who made it and no other person can acquire rights to or incur liabilities under it.

THE POSITION OF LAW WHERE THERE ARE TWO ENABLING LAWS

The law is well settled that where there are two enabling laws, one specific and the other general, a Court should invoke the specific provision. See NIGERIAN DEPOSIT INSURANCE CORPORATION VS. GOVERNING COUNCIL OF THE INDUSTRIAL TRAINING FUND (2012) 9 NWLR (PT. 1305) 252, ATTORNEY GENERAL, FEDERATION VS. ABUBAKAR (2007) 10 NWLR (PT. 1041) 1, ARAKA VS. EGBUE (2003) 17 NWLR (PT. 848) 11 FEDERAL MORTGAGE BANK OF NIGERIA VS. OLLOH (2002) 9 NWLR (PT. 773) 475 AND EZEADUKWA VS. MADUKA (1997) 8 NWLR (PT. 518) 635. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Federal High Court sitting in Ibadan in SUIT NOS. FHC/IB/CS/111/2017 BETWEEN ASSET MANAGEMENT SERVICES & LOGISTICS LTD … CLAIMANT/RESPONDENT AND GRACELAND SERVICES AND LOGISTICS LTD. & 2 ORS delivered on the 31st of March, 2020.

The 1st Respondent instituted the action at the lower Court wherein he sought the following reliefs.
“30. WHEREOF the Claimant claims against the Defendants jointly and severally as follows:
a. The payment of a sum of N186,670,657.86 (One Hundred and Eight-Six Million, Six Hundred and Seventy Thousand, Six Hundred and Fifty-Seven Naira Eighty-Six Kobo) being the amount outstanding and unpaid by the Defendants as at 28th February, 2017 on the credit facilities granted to the 1st Defendant by Wema Bank Plc sometimes in 2006.
b. Interest on the said N186,670,657.86 (One Hundred and Eighty-Six Million, Six Hundred and Seventy Thousand, Six Hundred and Fifty-Seven Naira Eighty-Six Kobo) of 15% from the 28th day of February, 2017 until judgment and thereafter at the rate of 15% until final liquidation of the judgment debt by the Defendants.
AND/OR IN THE ALTERNATIVE
c. An ORDER of this Honourable Court granting forfeiture of the 2nd and 3rd Defendants’ Properties situate lying and being at Plot 5, Bolaji Ogunkoya Layout (also known as 12, Odedina Street), Gbekuba Village, Ido Local Government Area, Ibadan, Oyo State and Plots 20, 21, 22, and 23 Bolaji Ogunkoya Layout, Gbekuba Village, Ido Local Government Area, Ibadan, Oyo State and all which properties are covered by Deed of Assignment registered as No. 56 at page 56 in volume 3493 at the Land Registry, Ibadan, Oyo State jointly belonging to the 2nd and 3rd Defendants for the purpose of disposing them by public auction or private treaty or treaties and applying the proceeds thereof towards the liquidation of the outstanding indebtedness of the Defendants.
D. AN ORDER of this Honourable Court empowering the Claimant or any other nominee or agents of the Claimant to take possession of the 2nd and 3rd Defendants’ properties situate, lying and being at Plot 5, Bolaji Ogunkoya Layout (also known at 12, Odedina Street), Gbekuba Village, Ido Local Government Area, Ibadan, Oyo State and all which properties are covered by Deed of Assignment registered as No. 56 at page 56 in Volume 3493 at the Land Registry, Ibadan, Oyo State jointly belonging to the 2nd and 3rd Defendants used as securities and/or traced to the 2nd and 3rd Defendants as Guarantor or Sureties for the credit facilities advanced to the 1st Claimant and dispose same by public auction or private treaty and apply the proceeds thereof towards the liquidation of the credit facility and outstanding indebtedness of 1st Defendant.”

Briefly, the facts of the case at the lower Court are as follows:

The 1st Respondent claimed that by a letter written to WEMA BANK PLC, the 1st Appellant applied for a grant of Equipment lease for the Advancement of its Company’s Logistics Business. Wema Bank Plc made an offer of credit facility in the sum of N19,800,000.00 which offer the 1st Appellant accepted. The facility was secured with a legal mortgage on the landed property described as a duplex situate and lying at Plot 5, Bolaji Ogunkoya Layout (also known as 12, Odesina Street, Gbekuba Village, Ido Local Government Area, Ibadan, Oyo State covered by a Deed of Assignment registered as No. 56 at page 56 in volume 3493 at the Land Registry, Ibadan, Oyo State, jointly owned by the 1st, 2nd & 3rd Appellants as well as the personal guarantee of the 2nd Appellant as Chairman/Chief Executive of the 1st Appellant. The 1st Respondent claimed the loan was disbursed but when it became due for payment the Appellants failed to liquidate the debt. Having become a non-performing loan, the 1st Respondent purchased it from WEMA BANK PLC and issued a demand notice to the 1st Appellant who failed to settle the outstanding sum.

The case of the Appellants who did not deny accepting an offer of credit facility from WEMA BANK PLC is that they fully liquidated the loan sum. They also denied owing the 1st Respondent any money.

After hearing parties on both sides, the learned trial Judge delivered a considered judgment wherein he held as follows:
“I hereby forthwith order in the alternative reliefs as follows.
“1) I ORDER the forfeiture of the 2nd and 3rd Defendants’ properties situate lying and being at Plot 5, Bolaji Ogunkoya Layout (also known as 12, Odedina Street) Gbekuba Village, Ido Local Government Area, Ibadan, Oyo State and Plots, 20, 21, 22 and 23 Bolaji Ogunkoya Layout Gbekuba Village, Ido Local Government, Area, Ibadan, Oyo State and all which properties are covered by Deed of Assignment registered as No. 56 at page 56 in volume 3493 at the Land Registry, Ibadan, Oyo State jointly belonging to the 2nd and 3rd Defendants for the purpose of disposing same by Public auction or private treaty or treaties and applying the proceeds thereof towards the liquidation of the outstanding indebtedness of the Defendants.
2) I ORDER the Claimant or any other nominee or agents of the Claimant to take possession of the 2nd and 3rd Defendants’ properties situate, lying and being at Plot 5, Bolaji Ogunkoya Layout (also known as 12, Odedina Street), Gbekuba Village, Ido Local Government Area, Ibadan, Oyo State and Plots 20, 21, 22 and 23 Bolaji Ogunkoya Layout, Gbekuba Village, Ido Local Government Area, Ibadan, Oyo State and all which properties are covered by Deed of Assignment registered as No. 56 and page 56 in volume 3493 at Land Registry, Ibadan, Oyo State jointly, belonging to the 2nd and 3rd Defendants used as securities and/or traced to the 2nd and 3rd Defendants as Guarantors or sureties for the credit facilities advanced to the 1st Defendant by WEMA BANK PLC culminating in the outstanding indebtedness as acquired by the Claimant and dispose same by Public auction or Private treaty and apply the proceeds thereof towards the liquidation of the credit facility and outstanding indebtedness of 1st Defendant.”

Dissatisfied with the judgment the Appellants have appealed to this Court. They filed a Notice of Appeal on the 31st of March 2022 and another Notice of Appeal on the 30th of June 2020.

In line with the rules and practice of this Court, parties filed and exchanged briefs of Argument as follows:
1. Appellants’ Brief settled by Oladoyin O. Fasobi, Esq., filed on 9th of September, 2020 was deemed properly filed on 15th of September, 2020.
2. 1st Respondent’s Brief of Argument settled by Hassan T. Fajemite, Esq., was filed on 24th of September, 2020.
3. Appellants’ Reply Brief of Argument filed on 2nd of October, 2020 was deemed filed on 22nd of September 2021.
4. Reply to Appellants’ Reply to the Notice of Preliminary Objection Contained in 1st Respondent’s Brief of Argument filed on 14th of October, 2020 was deemed filed on 22nd of September, 2021.

On 7th of April, 2022, when this appeal came up before us for hearing, Learned Counsel to the Appellants, George Onaho, Esq., withdrew the Notice of Appeal filed on 31st of March, 2020 and relied on that filed on 30th of June, 2020. Same was consequently struck out without objection from the 1st Respondent. He went on to identify, adopt and rely on Appellants’ Brief of Argument and Reply Brief of Argument as his oral arguments. He urged us to allow the appeal. Learned Counsel to the 1st Respondent; Hassan T. Fajemite, Esq., identified, adopted and relied on 1st Respondent’s Brief of Argument. He urged us to dismiss the appeal.

2nd Respondent did not file any brief of Argument. He was neither in Court nor represented by Counsel. The Registrar of Court informed us that a hard copy of the hearing Notice was served on him on 5th of April, 2022. He is thus aware of the hearing of this appeal but elected not to participate.

In the Appellants’ Brief of Argument, Counsel distilled four (4) issues for determination. They are:
1. Whether the lower Court was right and not perverse when it held the 3rd Appellant liable for the loan agreement between the 1st Appellant Company and WEMA BANK Plc, when the 3rd Appellant was neither a party nor privy to the said loan agreement and/or transaction. (Ground 2 of the Notice of Appeal).
2. Whether in view of the evidence on record; the agreement to settle the matter amicably and the step already taken by parties to ensure the filing of Terms of Settlement, the lower Court was not wrong to have insisted on trial and adjudged the 1st Respondent to be entitled to the reliefs claimed. (Ground 4 of the Notice of Appeal).
3. Whether the failure and/or refusal of the lower Court to first determine the 1st Respondent’s main case and the principal reliefs claimed against the Appellants before going into consideration of the alternative case and reliefs has occasioned a miscarriage of justice. (Ground 1 of the Notice of Appeal).
4. Whether the lower Court in granting the 1st Respondent’s brief as claimed without disposing of all the interlocutory applications was not a denial of fair hearing which has occasioned a miscarriage of justice. (Ground 3 of the Notice of Appeal).

The 1st Respondent’s Counsel adopted the four issues distilled by the Appellants. I find it imperative to refer to the Notice of Preliminary Objection contained at page 4 of 1st Respondent’s Brief of Argument. The preliminary objection was argued at pages 5 to 8 thereof. Appellants responded to this Preliminary Objection at pages 3 to 12 of Appellants’ Reply Brief of Argument. The 1st Respondent filed a Reply.

It is trite that a preliminary objection raised in a Respondent’s Brief of Argument cannot be argued along with the Brief. This is because the Respondent is required to specifically seek leave of Court and obtain same to move the objection at the hearing of the appeal. Where the Respondent fails to follow this procedure, he will be deemed to have abandoned the objection. See REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NIGERIA AIRSPACE MANAGEMENT AGENCY (2014) 8 NWLR (PT. 1408); CAREW VS. OGUNTOKUN (2011) 5 NWLR (PT. 1240) 376; ATTORNEY-GENERAL, RIVERS STATE VS. UDE (2006) 17 NWLR (PT. 1008) 436; ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975) 65.
The 1st Respondent who failed to seek and obtain leave of Court to argue the preliminary objection is deemed to have abandoned it. The Notice of Preliminary Objection incorporated in the 1st Respondent’s brief of argument is hereby struck out. I have earlier stated that the 1st Respondent adopted the four issues formulated by the Appellants as his and argued them in his brief of Argument. I shall determine this appeal on the four issues distilled by the Appellants and consider them together.

ISSUE NO. 1
Is a complaint against the finding of the lower Court that the 3rd Appellant was liable in the loan agreement between the 1st Appellant and WEMA bank Plc. It is the contention of Appellants’ Counsel that the 3rd Appellant who was not a party to the Agreement was not bound by its terms and conditions. He relied on the cases of LINTON IND. TRADING CO. (NIG.) LTD VS. CBN (2015) 4 NWLR (PT.1448) 94, WEST AFRICA OFF SHORE LTD VS. ARIRI (2015) 1 NWLR (PT. 1490) 177, BFI GROUP CORP VS. B.P.E. (2012) 18 NWLR (PT. 1332) 209 FGN VS. INTERSTELLA COMMS. LTD (2015) 9 NWLR (PT. 1463) 1, IDUFUEKO VS. PFIZER PRODUCT LTD. (2014) 12 NWLR (PT. 1420) 96, ISHENO VS. JULIUS BERGER PLC (2008) 6 NWLR (PT. 1084) 582, KAYDEE VENTURES LTD. VS. MINISTER FCT (2010) 7 NWLR (PT. 1192) 171 to submit that parties to an agreement are bound by the terms and conditions of the agreement they signed and that the duty of the Court is to interpret and enforce the terms. He submitted that a person who is neither a party nor privy to a contract cannot be sued thereunder as there is no cause of action against him. He craved in aid of his submission the cases of REICHIE VS. N.B.C.I. (2016) 8 NWLR (PT. 1514) 294 AND A.I.D.C.VS. NIGERIA LNG LTD (2000) 4 NWLR (PT. 653) 494.

He argued that the decision of the lower Court holding the 3rd Appellant liable in a loan agreement to which she is neither a party, privy or guarantor is perverse and urged us to so hold. He urged us to resolve this issue in favour of the Appellants.

ISSUE NO. 2
Is on the steps taken by the parties to settle the matter out of Court. It is the contention of the Appellants that they agreed with the 1st Respondent to settle the matter out of Court prior to the commencement of the action at the lower Court and that based on the agreement, they paid the sum of Five Million Naira to the 1st Respondent. Appellants argued that having accepted the agreed sum of Five Million Naira, the 1st Respondent was estopped from proceeding against them in Court. He relied on the cases of TIKA TORE PRESS LTD. VS AJIBADE ABINA (1973) 1 ALL NLR (PT. 11) 244 BPS CONSTR & ENGINEER CO. LTD. VS FCDA (2017) 10 NWLR (PT. 1572) 1 AND OLALEKAN VS. WEMA BANK PLC (2006) 13 NWLR (PT. 998) 617 in support of his argument and urged us to resolve this issue in favour of the Appellants.

He proceeded to argue issues 3 and 4 together.
The two issues are:
3) Whether the failure and/or refusal of the lower Court to first determine the 1st Respondent’s main case and the principal reliefs claimed against the Appellants before going into consideration of the alternative case and reliefs has not occasioned a miscarriage of justice.
4) Whether the lower Court in granting the 1st Respondent’s reliefs as claimed without disposing of all the interlocutory applications was not a denial of fair hearing which has occasioned a miscarriage of justice.

Appellants Counsel in arguing these issues submitted that where in an action the claimant makes a principal claim and also claims an alternative relief, the Court should determine the main relief first and where it succeeds, the alternative relief will be deemed abandoned and the Court will no longer have jurisdiction to inquire into it. He cited the cases of ODUTOLA HOLDINGS LTD. & ORS VS. LADEJOBI & ORS (2006) 12 NWLR (PT. 994) 321, B-LINE COMMUNICAITONS LTD. & ORS VS. ACCESS BANK & ANOR (2013) LPELR–22451 (CA), DONG & OTHERS VS. A.G. ADAMAWA STATE & ORS (2014) 6 NWLR (PT. 1404) 555 and others in aid of his submission. He submitted the lower Court erred when it failed to first determine the issue of the indebtedness of the Appellants and make an order for repayment of debt and interest which was the main claim before proceeding to grant the alternative claim. This error, he argued occasioned a miscarriage of justice on the Appellants.

He further submitted that failure of the trial Judge to rule on an application filed by the 2nd Respondent and argued on the 20th of November, 2017 prior to the delivery of the final judgment in the case was fatal. He argued the lower Court had a duty to dispense with all pending applications before delivering a final decision in a matter before it. He cited the cases of PDP VS. EZEONWUKA (2018) 3 NWLR (PT. 1606) 187 BELLVIEW AIRLINE LTD. VS. CARTER HARRIS (PROPRIETARY) LTD (2016) LPELR–40989 (CA) and others in support of his argument.
He then urged us to resolve these two issues in favour of the Appellants.

Arguing per contra, learned Counsel to the 1st Respondent on the culpability of the 2nd and 3rd Appellants submitted that the two of them being directors of the 1st Appellant are liable for its indebtedness. He relied on the provision of Section 61 of the AMCON ACT 2010 (as amended). He submitted that the provisions of the AMCON Act which are more specifically applied to the case at hand. He urged us to resolve this issue in favour of the 1st Respondent. On issue No. 2, his contention is that the submission made on behalf of the Appellants is misconceived. He submitted that parties neither filed nor signed terms of settlement. He referred us to the proceedings of 28th January, 2019 at the lower Court where the Court was informed that settlement was in progress. He conceded that a Court of law has an obligation to encourage amicable settlement of dispute between parties. He submitted that in line with this general principle, the lower Court granted seven consecutive adjournments to allow for out of Court settlement. He further urged us to hold that the Appellants were given fair hearing by the Court. He further submitted that the Appellants failed to show how they suffered any miscarriage of justice. He submitted that a person who alleges miscarriage of justice against him must prove same. He cited and relied on the cases of FALEYE VS. DADA (2016) 15 NWLR (PT. 1534) 80 OHAKIM VS. AGBASO (2010) 19 NWLR (PT. 1226) 172.
He submitted that the order of forfeiture made against the Appellants did not occasion any miscarriage of justice.

On the complaint of the failure of the lower Court to deliver a ruling on an application, counsel submitted that the application for joinder referred to by the Appellants is not contained in the Record of Appeal transmitted to this Court.

He relied on the case of OKECHUKWU VS. OBIANO (2020) 8 NWLR (PT. 1726) 276 to submit that an Appellate Court would not entertain an issue where the fact in support is not contained in the record.
Still, on the complaint of the Appellants on non-delivery of a ruling, he submitted the Appellants are meddlesome interlopers and have no locus standi to make such complaint. This he said is because it is not their application and they have nothing to lose by the alleged error. He cited and relied on the case of OHAKIM VS. AGBASO (2010) 19 NWLR (pt. 1226) 172 in support.
He finally urged us to resolve all issues in favour of the 1st Respondent and affirm the decision of the lower Court.

I have taken cognizance of all arguments canvassed on behalf of the Appellants in their Reply brief and all will be taken into consideration in the determination of this appeal.

Upon a careful perusal of submission made by counsel on behalf of the parties, it is not in doubt that this appeal revolves around issues thrown up by the credit facility granted to the 1st Appellant by WEMA Bank Plc vide a letter of offer, dated, 26th October, 2006 (Exhibit B). The total money granted vide multiple facilities is the sum of Nineteen Million Eight Hundred Thousand Naira (N19,800,000.00).

The Appellant endorsed the Memorandum of Appearance attached to the letter of offer. The endorsement was done by its Managing Director and Business Manager. It is therefore not in dispute that there was an agreement between WEMA Bank Plc and the 1st Appellant.

At page 1045 of vol. 2 of the Record is the terms of the security for the credit facility. It is as follows:
“7 SECURITY
a) Existing Debenture in floating assets of the Company valued at N4.09m (FSV) 24th June 2005 to subsist.
b) Legal ownership of 6 Trailers to be purchased valued at N24 million taken.
c) Legal Mortgage on Landed property located at No. 12, Odedina Street, Gbekuba Area, Ibadan, Oyo State valued at N12.3 million (FSV) to be taken.
d) Existing Personal Guarantee of the Chairman/CEO, Mr. M.O. Owolabi supported with Sworn affidavit and statement of his net worth to subsist.
e) Continuing Domiciliation of various contract process from BATC subsist.
f) Continuing Domiciliation of various contract proceeds from Procter and Gamble (P&G) should be in place.”

The above is the terms of the guarantee of the credit facility. It is trite that the essence of securing a debt is to protect the interest of the creditor. It is an insurance against unforeseen developments.

The law is further settled that if parties enter into an agreement, they are bound by its terms. Neither the parties nor the Court is allowed to read into the agreement terms which are not agreed upon by the parties. See CONOIL VS. VITOL S.A. (2018) 9 NWLR (PT. 1625) 463, UWAH VS. AKPABIO (2014) 7 NWLR (PT. 1407) 472, HILARY FARMS LIMITED VS. M.I.V MAHTRA (2007) 14 NWLR (PT. 1054) 10 AND KOIKI VS. MAGNUSSON (1999) 8 NWLR (PT. 615) 492.

The crux of the complaint of the Appellants under ISSUE NO. 1 is that the lower Court erred when it held the 3rd Appellant who was not a party to the debt agreement liable for the debt. They contend that by Exhibit B, it was the 2nd Appellant that guaranteed the facility.

It is trite that a contract cannot confer any enforceable right or impose any obligation arising under it on any person other than the parties to it. This is what is generally referred to as privy of contract. A contract is a private relationship between the parties who made it and no other person can acquire rights to or incur liabilities under it.

See NOSPETCO OIL AND GAS LIMITED VS. OLORUNNIMBE (2022) 1 NWLR (PT. 1812) 495, VITAL INVESTMENT LIMITED VS. CHEMICAL AND ALLIED PRODUCTS PLC (2022) 4 NWLR (PT. 1820) 205, UNITED BANK FOR AFRICA PLC VS. JARGABA (2007) 11 NWLR (PT. 1045) 247 AND OSOH VS. UNITY BANK PLC (2013) 9 NWLR (PT. 1358) 1.
There is no evidence on record that the 3rd Appellant is privy to the contract evinced in Exhibit B. By a strict application of the doctrine of privity of contract, the 3rd Appellant cannot be made liable for the non-performance of the contractual obligation by the 1st Appellant in the debt agreement. This is the general rule. There are however exceptions to the general rule.
One of the recognized exceptions is that of an agency relationship between a party to the contract as the principal and a third party as an agent. Where the principal authorizes the agent to contract on his behalf with a second party, the agent though a stranger to that contract will assume rights and responsibilities therein. Another instance is where a trust created for the benefit of the third party who was not a party to the agreement contains a promise creating the said trust. See REBOLD INDUSTRIES LIMITED VS. MAGREOLA (2015) 8 NWLR (PT. 1461) 210, THE VESSEL LEONA II VS. FIRST FUELS LIMITED (2002) 18 NWLR (PT. 799) 439 AND MAKWE VS. NWUKOR (2001) 14 NWLR (PT. 733) 356.

The 1st Respondent has however submitted that the 3rd Appellant who is not privy to the contract is liable by virtue of the provision of S. 61 of the AMCON Act.

There is evidence on record that WEMA Bank has assigned its rights and liabilities under the contract in issue to AMCON (the 1st Respondent). An assignment is a transfer or setting over of property or of some right or interest therein from one person to another. The Assignor is a Company or entity who transfers rights they hold to the assignee. The Assignee is a person, company or entity to which a transfer of property, rights or interest is made. The effect of a legal assignment is to put the assignee in the same position as the assignor in respect of the benefits arising from the original transaction with the vendor. See JULIUS BERGER NIG PLC VS. TOKI RAINBOW COMMUNITY BANK LIMITED (2019) 5 NWLR (PT. 1665) 219, A.T.S. & SONS VS. BEN ELECTRONIC CO. NIGERIA LIMITED (2018) 17 NWLR (PT. 1647) 1.

The loan purchase Agreement and Limited Servicing Assignment between WEMA Bank Plc as assignor and the 1st Respondent as Assignee is Exhibit D. The debt in issue was assigned to the 1st Respondent. By reason of this assignment, the 1st Respondent is thus put in the same position as WEMA Bank Plc.

Now, the 1st Respondent who is a creation of statute was established as a body corporate pursuant to S. 1 of the Asset Management Corporation of Nigeria Act 2010 (as amended) and whose functions include acquisition of eligible bank assets from eligible financial institutions. See Section 5 (a) of the Act (supra).
It follows therefore that once the 1st Respondent acquires non-performing loans from eligible financial institutions, all the rights and powers of such institutions in respect of the non-performing loan become vested in it. See Section 34 (1) (a) and (b) of the Asset Management Corporation of Nigeria Act (as amended) which provides as follows.
“Subject to the provisions of the Land Use Act and Section 36 of this Act, upon the acquisition of an eligible bank asset by the Corporation without any assurance other than the provision of this section, the corporation shall immediately:
(a) Subject to paragraph (c) (i) and (d), become vested with and acquire legal title to the eligible bank assets and all assets or property tangible or intangible belonging to, traced to, and in which the debtor has interest in, whether or not such assets or property is used as security for the eligible bank asset;
(b) Be vested with power, to the exclusion of all other creditors, to take possession of, manage, foreclose or sell, transfer, assign or otherwise dispose of the eligible bank asset and any tangible or intangible asset or property used as security for the eligible bank asset, in full or partial satisfaction of the debt owed to the Corporation by reason of the acquisition of the eligible bank asset notwithstanding that the interest of the debtor in such asset or property is equitable only.”
Sequel to the foregoing provisions, as soon as the 1st Respondent acquires the debt owed a bank, legal title to the debtor’s assets; its tangible or intangible property shall be immediately vested in it (1st Respondent). This is applicable, whether or not such asset or property has been used as a security for the eligible bank asset. For this purpose, the 1st Respondent is vested with inherent power to trace any asset or property the debtor has interest in.
Furthermore, the 1st Respondent can take possession of, manage, foreclose or sell, transfer, assign or otherwise dispose of the eligible bank asset and any tangible or intangible asset or property used as security for the eligible bank asset in full or partial satisfaction of the debt owed.

Who then is a debtor under the Act? Section 61 of the Act (supra) defines debtor or debtor Company as follows:
“Any borrower, beneficiary of an eligible bank asset and includes a guarantor of a debtor, guarantor or director of a debtor company.”
To my mind, reference to debtor in S. 34 of the Act (as amended) is not limited to the individual who is indebted to a bank and which debt has been assigned to AMCON. It includes any person who is a guarantor to the transaction from which the debt arose. Where the debtor is a company, the debtor is deemed to include a director of the company.

The law is settled that where the provisions of a statute are positive, clear and unequivocal the words of such provisions must be given effect.

Furthermore, where a statutory provision conflicts with the common law, the common law gives way to the statute. See HARKA AIR SERVICES NIGERIA LIMITED VS. KEAZOR (2011) 13 NWLR (PT. 1264) 320, OWNERS OF THE MV ARABELLA VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT. 1097) 182, NIGERIAN PORTS AUTHORITY PLC VS. LOTUS PLASTICS LIMITED (2005) 19 NWLR (PT. 959) 158, PATKUN INDUSTRIES LIMITED VS. NIGER SHOES MANUFACTURING CO. LTD. (1988) 5 NWLR (PT. 93) 138.

A community reading of S. 34 and 61 of AMCON Act (as amended) removes transactions involving recovery of debts assigned to the 1st Respondent from the common law principles of separate personality between a company and its directors. I am not unmindful of the distinct personality between a limited liability company and its directors preserved by the Companies and Allied Matters Act. The provisions under the Companies and Allied Matters Act are general provisions. The AMCON Act has however made specific provision for causes that relate to recovery of eligible asset and debt assigned to it. The law is well settled that where there are two enabling laws, one specific and the other general, a Court should invoke the specific provision. See NIGERIAN DEPOSIT INSURANCE CORPORATION VS. GOVERNING COUNCIL OF THE INDUSTRIAL TRAINING FUND (2012) 9 NWLR (PT. 1305) 252, ATTORNEY GENERAL, FEDERATION VS. ABUBAKAR (2007) 10 NWLR (PT. 1041) 1, ARAKA VS. EGBUE (2003) 17 NWLR (PT. 848) 11 FEDERAL MORTGAGE BANK OF NIGERIA VS. OLLOH (2002) 9 NWLR (PT. 773) 475 AND EZEADUKWA VS. MADUKA (1997) 8 NWLR (PT. 518) 635.
I completely agree with learned Counsel to the 1st Respondent that the Asset Management Corporation of Nigeria Act (supra) has lifted the veil of incorporation and departed from the common law distinction between the debt or liabilities of a Company and that of its directors.
There is evidence on record that the 3rd Appellant is one of the directors of the 1st Appellant. She is therefore a debtor by virtue of S. 61 of the Act (supra) and liable for the debt of the 1st Appellant assigned to the 1st Respondent. It is for all of the foregoing that I answer issue No. 1 in the affirmative and resolve it in favour of the 1st Respondent and against the Appellants.

Issue No. 2 is on the alleged terms of settlement between the parties. Learned Counsel to the Appellants submitted that the learned trial Judge who was intimated of steps being taken by the parties to resolve the matter before him out of Court did not afford them the opportunity to do so. He argued that the trial Judge who had a duty to encourage amicable resolution of disputes between the parties appeared to be more interested in the hearing of the matter.

Order 11 Rules 1(1) and (2) of the Federal High Court (Asset Management Corporation of Nigeria (AMCON) proceeding Rules, 2018 provides as follows:
“(1) When a matter comes before the Court for the first time, the Judge shall in circumstances where it is appropriate, grant to the parties time not more than (21) days within which parties may explore possibilities for settlement of the dispute.
(2) Where parties fail to settle within (21) days or such other period as the Court may grant, the case shall without more, proceed to trial.”
The lower Court is a Federal High Court which rules allow it to grant a period of not more than twenty-one days for parties to explore settlement of their dispute and which period the Court has the discretion to extend. From the record, I find that on the 25th of January, 2018, the Court was informed that there were moves by the parties to amicably settle the case out of Court. The case was adjourned to 27th of February, 2018 for report of settlement. On 27th of February 2018, the case was further adjourned to 6th of March, 2018, for report of settlement. When the matter came up on 6th of March, 2018, it was further adjourned to 12th of April, 2018 still for report of settlement. On the 16th of May, 2018, when the learned trial Judge discovered that parties were yet to file their terms of settlement, he adjourned the matter to 26th September, 2018 for hearing. The record leaves no one in doubt that the learned trial Judge gave ample opportunity to the parties to amicably settle their dispute out of Court.

It is important to note that the period between 25th January, 2018 when parties first intimated the Court of their intention to amicably settle their dispute and 16th of May, 2018 when the trial Judge adjourned the case for hearing was a period of about Eighty (80) days. I do not see any reason to warrant the submission of Appellants Counsel that the learned trial judge did not give room for out of Court settlement but was more interested in hearing the matter. This submission tends to impugn the integrity of the learned trial Judge. The duty of Counsel is to place before the Court the case of his client in the best tradition of advocacy and not to cast unwarranted aspersions on the integrity of the judge.
In ADEYEMI VS. ABIODUN (2021) LPELR-55706 (CA), I pronounced as follows.
“Let me state clearly that the learned trial Judge is not a party to this appeal and not on trial before us. Appellant’s Counsel has made disparaging remarks about him which he has no opportunity to respond to. This practice of using intemperate language against a Judge in a brief of argument is unacceptable and I condemn it in strong terms. It does not improve advocacy.
Legal practitioners are ministers in the temple of justice and must at all times be courteous and maintain decorum in their use of language. The insult hurled at the learned trial Judge by the Appellant’s Counsel in his brief of Argument is uncalled for.
Counsel should exercise restraint in their use of language even where they are of the view that the order made is bad in law”
My position remains the same. See also SALAWU VS. YUSUF (2007) 12 NWLR (PT. 1049) 707, ABEKE VS. STATE (2007) 9 NWLR (PT. 1040) 411, ALON VS. DANDRILL NIGERIA LIMITED (1997) 8 NWLR (PT. 517) 495.

Counsel to the Appellants submitted that the Appellants paid the sum of Five Million Naira to the 1st Respondent as a condition precedent for the amicable settlement of the dispute between them. He argued that by so doing, the Appellants were discharged from their debt obligation to the 1st Respondent. He submitted that the payment of the sum of N5m in the circumstance amounted to accord and satisfaction.

Accord and satisfaction is the purchase of a release from an obligation whether arising under a contract or tort by means of any valuable consideration not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative. See CHIEKE VS. OLUSOGA (1997) 3 NWLR (PT. 494) 390 SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD. VS. FEDERAL BOARD OF INTERNAL REVENUE (1996) 8 NWLR (PT. 466) 255, GRAY SHOT ENTERPRISES LTD. VS. THE HON. MINISTER OF AGRICULTURE, FEDERAL REPUBLIC OF NIGERIA (2002) 9 NWLR (PT. 771).
In NIGERIAN EDUCATIONAL RESEARCH AND DEVELOPMENT COUNCIL VS. GONZE NIGERIA LTD. (2000) 9 NWLR (PT. 673) 532 AT 551, OLAGUNJU JCA held as follows:
“In UDE VS. OSUJI (1990) 5 NWLR (PT. 151) 488, 508, Accord and satisfaction was defined as:
“The purchase of a release from an obligation whether arising under contract or tort by means of any valuable consideration, not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative.”
The essence of accord and satisfaction is an agreement whereby the person with the legal right arising from failure to discharge an obligation comes to terms with the party who is in breach to forgo his right on certain consideration. That being the case, it is the burden of one relying on the defence to prove that there was such an agreement.”
It follows therefore that there can be no accord without the existence of an agreement between parties. There can be no satisfaction where no consideration is paid. Such consideration must be valuable. The question which now begs for an answer is whether parties reached an agreement and whether the Appellants paid valuable consideration to the 1st Respondent. The 2nd Appellant who testified as DW1 stated in his witness on oath which he adopted as his oral testimony as follows:
“66. That due to the effects this case had on the Defendants and their family, they decided to enter into amicable settlement of this case out of Court while this case is pending in Court.
67. That the officials of the Claimant insisted that the 1st Defendant must pay the Claimant the sum of N5,000,000 (Five Million Naira) as a precondition to have a roundtable discussion on settlement out of Court.
68. That due to the difficult circumstances the Defendants found themselves as a result of this case, they agreed to pay the said N5,000,000 (Five Million Naira) to the Claimant.
69. The Defendants aver that after they paid the said N5,000,000 (Five Million Naira) to the Claimant during the pendency of this case, they have had several meetings with some of the Claimant’s officials at the Claimant’s office in Lagos.
70. That it was the Claimant that always frustrate the said settlement after causing the 1st Defendant to pay the said N5,000,000 (Five Million Naira) by persistent introduction of impossible conditions into the terms of settlement.
71. That each time the said officials of the Claimant and the Defendants finalize on the terms as to the amount the 1st Defendant should pay as full and final settlement of this matter, the said Claimant’s officials always asked the 1st and 2nd Defendants to wait for approval of the agreed terms from their superior officers who kept rejecting the said terms and frustrating every effort to settle this matter amicably. The Defendants shall at the trial rely on the response letter from the Claimant rejecting as other times the terms the Defendant and some of the Claimant’s officials had already agreed on.
72. That the Defendants have made several efforts to settle this matter amicably with the Claimant not because they believe they are indebted to the Claimant but for peace to reign but all to no avail.”

At page 102 of the Additional record, in answer to question put to him under cross-examination, DW1 stated as follows:
“You are not correct that the only payment I made was N5 million good faith payment. The N5 million was a consideration after we agreed to a proposal of N20,000,000 but they later changed the settlement amount to N35 million, which they claim AMCON bought the amount for. I told them it was due to their undue diligence which should not be transferred to me.”

The 1st Respondent did not dispute the foregoing facts given in evidence by DW1. PW1 in his Statement on Oath in Proof of Reply to the Amended Statement of Defence testified as follows:
“46. That I am aware that the Defendant is very much indebted to the Claimant and that the Defendants have acknowledged their indebtedness to the Claimant and have made series of attempts to negotiate the repayment of the said indebtedness however all steps taken so far have been unsuccessful in that Defendants’ offer have been too paltry insignificant and unjustifiable in law and fact.
47. That I know that by the Defendants’ letter on 6th September, 2016 they acknowledged their indebtedness and seeking for a concession to be able to pay the indebtedness.
48. That I also know that the Claimant did try to settle this matter amicably with the Defendants in line with its Alternative Dispute Resolution Act 2018 but that the terms being proposed by the Defendants were way below the level of concession that can be given for the huge of indebtedness of the Defendants.”
(See pages 1119 to 1120 of the printed Record Volume 2)

The evidence on record is that the Appellants paid the sum of Five Million Naira (N5,000,000.00) in good faith to kick start the process of amicable resolution. The payment was however not in full satisfaction of the debt.

In LAWSON VS. OKORONKWO (2019) 2 NWLR (PT. 1658) 66 AT 74-75, PARAGRAPHS G-A, the Supreme Court held, per EKO, JSC as follows:
“In the spirit of the role of the judex, which is to encourage amicable settlement of dispute out of Court, terms of settlement are a major pillar in modern adjudication. Terms of settlement are amicable settlement by parties out of Court of their dispute without going to the merits of the matter or appeal.

Terms of Settlement, according to Black’s Law Dictionary 9th Edition, form or constitute a compromise agreement between the parties in litigation. It is a contract whereby new rights are created in substitution for and in consideration of the abandonment of the claim or claims pending the Court. The essence of this compromise agreement, in the words of Adekeye, JSC in S.P.M. Ltd vs. Adetunji (2009) 13 NWLR (pt. 1159) 647 (SC), “is to put a stop to litigation between the parties just as much as is a judgment which results in the normal proceedings in matter heard on its merits” It is not, however, a judgment on the merits of the case, though it creates an enforceable right.”

The summary of all of the above is that parties will be deemed to have reached an agreement to compromise an action filed in Court after they have reached an agreement and filed terms of settlement in Court. The 1st Respondent did not deem the consideration offered by the Appellants to be valuable and did not accept it. There was therefore no agreement between them i.e. Appellants and 1st Respondent. They could not agree and that explains why no terms of settlement was filed in Court. What transpired between the parties did not amount to accord and satisfaction. No terms of settlement was filed. The trial Court was right when he set the matter down for hearing and proceeded to hear it on merit.
ISSUE NO. 2 is resolved in favour of the 1st Respondent and against the Appellants.

It is further the complaint of the Appellants that the lower Court erred when it granted the alternative reliefs sought by the 1st Respondent without first considering and determining the main claim.

The law is settled that where a claim is in the alternative, the Court should first consider the main claim. It is only after the Court has come to a decision of refusing the main claim that it would go on to consider the alternative claim. See IDUFUEKO VS. PFIZER NIGERIA LIMITED (2014) 12 NWLR (PT. 1420) 96, G.K.F. INVESTMENT NIGERIA LTD. VS. NIGERIA TELECOMMUNICATIONS PLC (2009) 15 NWLR (PT. 1164) 344, AGIDIGBI VS. AGIDIGBI (1996) 6 NWLR (PT. 454) 300, MERCANTILE BANK OF NIGERIA LTD. VS. ADALMA TANKER & BUNKERING SERVICES LTD. (1990) 5 NWLR (PT. 153) 747.

The reliefs sought by the 1st Respondent are at paragraph 30 the Amended Statement of Claim. The 1st Respondent claimed for the payment of the outstanding debt sum and accrued interest thereon. In the alternative, it claimed for forfeiture of the property used as security for the loan.

The learned trial Judge in his judgment held that the 1st Respondent as Claimant proved the balance outstanding on the loan transaction and went on to consider other issues submitted for determination. After considering all issues submitted to him for determination, he found that on the preponderance of evidence and in the interest of justice the 1st Respondent was entitled to judgment. He held as follows:
“I find the Claimant are entitled to judgment in this suit. I so adjudge accordingly I hereby forthwith order in the alternative reliefs as follows…”

The learned trial Judge did not pronounce on the main claim before proceeding to grant the alternative reliefs.

The law is settled that it is not every error committed by a trial Court that leads to the reversal of the judgment. An error that would warrant reversal of a judgment is such that has substantially and materially affected the decision. See ETIM VS. AKPAN (2019) 1 NWLR (PT. 1654) 451, AKEREDOLU VS. AKINREMI (1989) 3 NWLR 9 (PT. 108) 164, OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) 326 AND OLUBODE VS. SALAMI (1985) 2 NWLR (PT. 7) 282.

It is the contention of the Appellants that the error of the learned trial Judge in granting judgment as per the alternative claim without first pronouncing on the main claim occasioned a miscarriage of justice to them.

Simply put, miscarriage of justice is a wrong decision made by a Court and the burden is on the person who alleges it to prove it. See TYONEX NIGERIA LTD. VS. PFIZER LIMITED (2020) 1 NWLR (PT. 1704) 125, GBEDU VS. ITIE (2020) 3 NWLR (PT. 710) 104, UMAR VS. GEIDAM (2019) 1 NWLR (PT. 1652) 29, AKOMA VS. OSENWOKWU (2014) 11 NWLR (PT. 1419) 462.
In GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282 AT 306 PARAGRAPH E–F the Supreme Court per Tobi, JSC held thus.
“Miscarriage of Justice Connotes decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the justice has been miscarried.”

In the determination of whether the decision of the lower Court granting the alternative claim without first giving a consideration to the main claim occasioned a miscarriage of justice to the Appellants, I believe the fundamental question that begs for an answer is whether the order of forfeiture of the Appellants’ property made by the lower Court is inconsistent with the substantial rights of the parties. In other words, whether the lower Court was wrong when it ordered the forfeiture of the property of the Appellants.

Section 34 (1) (a) and (b) of the Assets Management Corporation (supra) empowers the 1st Respondent to take possession of, manage foreclose or sell, transfer, assign or otherwise dispose of the eligible bank asset and any tangible or intangible asset or property used as security in full or partial satisfaction of the debt owed to it. To my mind, the order of forfeiture made by the lower Court only gave judicial seal to the provisions of Section 34 (1) (a) and (b) (supra).

By the said provision, the legal title of the Appellants’ property used as security for the loan became vested in the 1st Respondent immediately it acquired the outstanding debt of the 1st Appellant from WEMA Bank Plc. The alternative claim granted by the learned trial Judge is consistent with the rights conferred to the 1st Respondent by statute. It is not a wrong decision and I do not see how it has occasioned miscarriage of justice on the Appellant.

The Appellants’ complaint under Issue NO. 4 is that the lower Court failed to deliver a ruling on the Application of the 2nd Respondent seeking to be joined as an interested party in the suit before it. It is the contention of Counsel to the 1st Respondent that there is no such application in the record transmitted to this Court.

I have scrutinized vols. 1 and 2 of the Record of Appeal and the additional Record all transmitted by the Appellants Counsel and I cannot find any application to join the 2nd Respondent as a party to the action at the lower Court.

The law is settled that an appeal is in the nature of a rehearing in respect of all the issues canvassed in the case of the lower Court. It is not a new action.

The importance of the transmission of a complete record cannot therefore be over-emphasized. It is further the law that the Court, the parties and Counsel are bound by the contents of the Record of Appeal and an appellate Court has no jurisdiction to go outside the record in the determination of an appeal. See SAKAMORI CONSTRUCTION (NIGERIA) LTD. VS. LAGOS STATE WATER CORPORATION (2022) 5 NWLR (PT. 1823) 339, ACCESS BANK VS. ONWULIRI (2021) 6 NWLR (PT. 1773) 391, SIFAX NIGERIA LTD. VS. MIGFO NIGERIA LTD (2018) 9 NWLR (PT. 1623) 138, GARUBA VS. OMOKHODION (2011) 15 NWLR (PT. 1269) 145 AND AGBAREH VS. MIMRA (2008) 2 NWLR (PT. 1071) 378.

The Appellants compiled and transmitted two volumes of the Record of Appeal, and two additional records of Appeal. They omitted the application which they have now made an issue in this appeal. This Court does not have jurisdiction to go outside the record of Appeal to draw conclusion on issues placed before it. There is nothing in the record to support the argument of Appellant’s Counsel.

It is significant to note that the 2nd Respondent who the Appellants claimed filed a motion on which no ruling was delivered has not cross-appealed. He has not complained on the alleged omission. The Appellants who are complaining have failed to demonstrate the wrong meted out to them by the neglect on the part of the learned trial Judge.

They have failed to show how the neglect of the lower Court to deliver a ruling filed by the 2nd Respondent affected them. I think the Appellants are crying more than the bereaved. This issue is also resolved in favour of the 1st Respondent and against the Appellants.

On the whole, having resolved all the four issues in this appeal against the Appellants, it follows therefore that the appeal is completely devoid of merit and deserves to be dismissed and it is accordingly dismissed. The judgment of the Federal High Court sitting in the Ibadan Judicial Division in SUIT NOS. FHC/IB/CS/111/2017 is hereby affirmed.
Parties are ordered to bear their respective costs.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form, the judgment of my learned brother, FOLASADE ADEDEJI OJO, JCA. just delivered.

I agree with the reasoning and conclusions of my learned brother.

Under Issue No. 3, the Appellants complained that the trial Court was wrong in granting the 1st Respondent’s alternative relief, without first considering the principal relief. In theory, the law is that where a claim is in the alternative, the Court should first consider whether the main or principal claim ought to succeed. See G. K. F. Investment Nigeria Ltd. v. Nigeria Telecommunications PLC (2009) 15 NWLR (Pt. 1164) 344.
Put differently, it is after the Court has found that, for any reason, the principal claim could not be granted that it would consider the alternative relief. See Odutola Holdings Limited & 6 Ors. v. Mr. Tunde Ladejobi & 13 Ors. (2006) 12 NWLR (Pt. 994) 321.

However, considering the principle of law that more emphasis should be placed on substantial justice, instead of technical justice, I will stand on the side of substantial justice. That the attitude of Courts is to void deciding cases on mere legal technicalities, see the case of G. B. Ollivant Ltd. v. C. A. Vanderpuye (1935) 2 WACA 368 at 370 where the west African Court of Appeal stated as follows:
“As to the second objection, the contention of the respondent appears to be correct, but it is purely of technical nature, and this Court will not refuse to attempt to do substantial justice between the parties upon a pure technicality.”
On the need for Courts not to decide cases on mere or pure technicalities, see also the cases of Aliu Bello v. Attorney General of Oyo State (1986) 6 NWLR (Pt. 45) 828; Ezekiel Nneji v. Chief Nwankwo Chukwu (1988) 3 NWLR (Pt. 81) 184; Joseph Anie & Ors. v. Chief Uzoma Uzorka & Ors. (1993) 8 NWLR (Pt. 309) 1; Alhaji Atiku Abubakar v. Alhaji Umaru Yar’Adua (2008) 4 NWLR (Pt. 1078) 465 and Hon. Gozie Agbakoba v. Independent National Electoral Commission (2008) 18 NWLR (Pt. 1119) 489.
That there is need for Court to lay more emphasis on substantial justice, see further the cases of Ikpala Estates Hotel Ltd v. National Electricity Power Authority (2004) 11 NWLR (Pt. 884) 249; Samuel Ayo Omoju v. Federal Republic of Nigeria (2008) 7 NWLR (Pt. 1085) 38 and Hon. Rotimi Chibuike Amaechi v. Independent National Electoral Commission (2008) 5 NWLR (Pt. 1080) 227.

Similarly, the Appellants’ grouse in their fourth and final issue is that the trial Court failed to dispose of some of the interlocutory applications before entering judgment in favour of the 1st Respondent.

The law is quite clear that a Court has a duty to hear and determine all applications properly brought before it. See Alhaji Chief Yekini Otapo v. Chief R. O. Sunmonu (1987) 2 NWLR (Pt. 58) 587 and Nalsa & Team Associates v. Nigerian National Petroleum Corporation (1991) 8 NWLR (Pt. 212) 652.

The law is that Courts of law presided over by human beings, are bound to make mistakes. However, it is not every error or mistake made by a Court that will result in its judgment being set aside or upturned on appeal. For an error or mistake to warrant a decision or judgment to be set aside or upturned, on appeal, such an error or mistake must be substantial and it must have occasioned a miscarriage of justice. See Clement Chukwujekwu v. Alhaji Abdullahi Olalere (1992) 2 NWLR (Pt. 221) 86; Kraus Thompson Organisation Ltd v. University of Calabar (2004) 4 SCNJ 182; (2004) 9 NWLR (Pt. 879) 631; Taofik Adeshiinde Oyefolu v. Abayomi Adeyosola Durosinmi (2001) 16 NWLR (Pt. 738) 1; Alhaji Madi Mohammed Abubakar v. Bebeji Oil & Allied Products Ltd (2007) 18 NWLR (Pt. 1066) 319 and Tsokwa Motors (Nig.) Ltd. v. United Bank for Africa PLC (2008) 2 NWLR (Pt. 1071) 347.

In this case, without conceding that the trial Court committed the alleged errors complained of by the Appellants, it has not demonstrated before us that the errors were grave and that they substantially occasioned a miscarriage of justice.

It is for the foregoing reasons and the very elaborate reasons advanced by my learned brother that I also dismiss the appeal.
I abide by all the orders in the leading judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my learned brother FOLASADE AYODEJI OJO, JCA and I completely identify with him that a Judge is enjoined to proceed to trial where parties who have made moves to settle the dispute or subject of litigation out of Court, but could not agree on the terms of settlement. Hence, the trial Judge was right to have proceeded with the matter when parties failed to file their terms of settlement. It also means there was no settlement and if there was no settlement, then, trial was the only option available to parties. See MENAKAYA V. MENAKAYA (2001) LPELR-1859(SC) and ARIOLU V. ARIOLU ORS (2010) LPELR-3947(CA).

Therefore, I adopt the leading judgment as mine and abide by all other orders made therein.