MICHEAL AWIEH & ORS V. CHIEF JOHNSON FADA OWOFIO (2012)

MICHEAL AWIEH & ORS V. CHIEF JOHNSON FADA OWOFIO

(2012)LCN/5579(CA)

In The Court of Appeal of Nigeria

On Thursday, the 12th day of July, 2012

CA/B/81/2010

RATIO

CONTRACT: BINDINGNESS OF A WRITTEN CONTRACT

CONTRACT: DUTY OF THE COURT WITH REGARD TO CONTRACTS OF PARTIES

In the case of: Nwaolisah v. Nwabufor (2011) 14 NWLR (Pt. 1268) p. 600 at p. 626, paras F – G., the learned Adekeye, J.S.C on the function of the court with regard to contracts entered into by parties held as follows:

The court’s duty is construe the surrounding circumstances including written or oral statements so as attest the intention of the parties. Where the correspondence exchanged between the parties are read together, it can be assumed that the parties have come to an agreement. Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) Pg.547; Nneji v. Zakhem Con. (Nig.) Ltd. (2006) 12 NWLR (Pt. 994) pg.297; Udeagu v. Benue Cement Co. Plc. (2005) 2 NWLR (Pt. 965) Pg. 600. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

Between

1. MICHEAL AWIEH
2. RICHARD ESIAKPERE
3. RICHARD ASORE
4. CHIEF BENSON ASORE Appellant(s)

AND

CHIEF JOHNSON FADA OWOFIO Respondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Delta State, sitting in Warri Judicial Division in Suit No. W/3/2005 delivered on the 20th day of May, 2008.
By a writ of summons and paragraph 19 of the amended statement of claim at page 52 of the record of appeal, the Respondent, then plaintiff claimed against the Appellants as defendants the following reliefs:
(a) The sum of Four Million, Seven Hundred and Forty-Two Thousand Naira (N4,742,00.00) being total of the principal sum of One Million and Fifty Two Thousand Naira (N1,052,000.00) and accrued interest thereon for twenty-five (25) months lent to the 1st, 2nd and 3rd defendants on 5/6/02 and duly guaranteed by the 4th defendant.
(b) Monthly interest of fifteen per centum (15%) on the principal sum of One Million and Fifty Two Thousand Naira (N1,052,000.00) from November, 2004 till judgment is finally entered.
(c) Annual interest rate of ten per centum (10%) from the date of judgment till the money is finally paid up.
It is the case of the Appellants that they needed money to carry out a contractual obligation and arranged for a loan of Six Hundred Thousand Naira (N600,000=) with the Respondent who however gave the Appellants the sum of Five Hundred and Forty Thousand Naira (N540,000=), stating that the balance of Sixty Thousand Naira (N50,000=) was withheld by the Respondent as administrative expenses. The Appellants asserted that they never executed the alleged loan agreement, exhibit A. The case was initially commenced under the Undefended List Procedure but later transferred to the General Cause List of the trial Court.

However, it is the case of the Respondent that, the 4th Appellant is his very close friend. That the 4th Appellant was his teacher and they became co-workers later at the Petroleum Training Institute (PTI), Effurun till they both retired. Sometime about the 4th and 5th day of June, 2002, the said 4tn Appellant brought the 3rd Appellant, who is his younger brother and the 1st & 2nd Appellants to him, that is, the Respondent. The 4th Appellant on that occasion pleaded with the Respondent to grant a loan of One Million and Fifty Two Thousand Naira (N1,052,000=) to the 1st, 2nd and 3rd Appellants jointly to enable them execute a contract awarded to them by Shell. The Respondent agreed due to pressure, assurance and guarantee of payment of the said sum within three months by the Appellants. It was equally agreed among the parties that if the money was not paid within the period of three months, it will begin to attract an interest of fifteen per centum (15%) per month until the principal sum was fully paid or the lender exercised his legal right to recover the loan. An agreement between the parties to that effect was executed, this is, Exhibit A. However, the Appellants defaulted and the Respondent sought to recover his money by filing an action at the trial Court after he had duly given written notices to the Appellants in this regard. The notices of default and commencement of interest are exhibits B & C respectively.
At the trial, the Appellants contended that the Respondent is a registered money lender but failed to deal with them in accordance with the provisions of the Money Lender’s Law of the former Bendel State as applicable in Delta State. The Appellants argued that exhibit A executed by the parties herein in effect is illegal and unenforceable.
The Respondent, on the other part, admitted that, although he is a money lender, in his transaction with the Appellants, he did not act as a money lender because of the cherished relationship he had with the 4th Appellant, hence, he gave the money as a friendly loan to the Appellants. Therefore, he was not obliged to comply with the provisions of the Money Lender’s Law. Accordingly, the Appellants, in their assurance that they will repay the friendly loan within three months at the most, gave a post-dated cheque for the said sum of One Million and Fifty Two Thousand Naira (N1,052,000.00) to the Respondent. The said cheque was drawn on an account with Diamond Bank Plc, Effurun-Sapele Road branch, Effurun, in the account name of Bisco Nigeria Enterprises. The said cheque was dishonored upon presentation. The said cheque was in evidence as Exhibit D. Also at the trial, the Appellants denied signing exhibit A but that they only signed blank papers. They denied collecting One Million and Fifty Two Thousand Naira (N1,052,000.00) from the Respondent but claimed they borrowed only Six Hundred Thousand Naira (N600,000.00) out of which the Respondent withheld the sum of Sixty Thousand Naira (N60,000.00) as administrative costs. They denied issuing exhibit D, the dishonoured cheque. The 4th Appellant denied knowing the 1st and 2nd Appellants rather he claimed that it was the Respondent who brought them to him to guarantee them because the 3rd Appellant was his younger brother.

At the conclusion of trial, the learned trial Judge entered judgment in favour of the Respondent and against the Appellants jointly and severally. All the reliefs sought by the Respondent as per his writ of summons and paragraphs 19(a) & (c) of the Amended Statement of Claim.
The Appellants were dissatisfied with the said judgment of the trial Court and filed an appeal against it, to this Court vide their Notice and Grounds of Appeal, dated and filed on 22nd May, 2008, containing seven grounds of appeal – see pages 153 to 166 of the record of appeal. The Appellants distilled five issues from the seven grounds of appeal for the determination of this appeal. The five issues are contained in the Appellants’ brief of argument prepared by their counsel, Mr. G.J. Odjeba. It was dated and filed on 22nd September, 2010 but deemed properly filed and served on 14th April, 2011. The five issues read thus:
1. Was the trial Court correct when it held that exhibit A in this case cannot be said to be illegal having regard to the Money Lenders Law, Cap. 100, Laws of Bendel State, 1976, applicable to Delta State, because the contents of the said exhibit A did not include a mention of the said Money Lenders Law?
2. Was the trial Court right in holding that the Appellant cannot rely on the defence of illegality despite the express content of exhibit A?
3. Was the money lending transaction in this case not tainted with illegality and so unenforceable?
4. Did the trial Court properly admit in evidence the mandate card exhibit F?.
5. Having regard to the denial by 1st, 2nd and 3rd Appellants that exhibit A was not what they signed and that the money given to them was Five Hundred and Forty Thousand Naira only (N540,000.00), was the weight of evidence adduced at the trial Court not against the granting of the claims of the Respondent? The Respondent’s brief of argument prepared by Mr. Oghenro Okoro was dated and filed on 14th April, 2011. In it four issues were formulated for determination. These are as follows:
(1) Whether from the facts, exhibits and circumstances of this case, the Appellants are not liable to pay the Respondent’s claim or was the trial Court wrong to have relied on exhibit A in its judgment?
(2) Whether the Appellants can avoid their liability to the Respondent by hiding under the cloak of illegality of exhibit A?
(3) Whether the trial Court properly admitted exhibit F?
(4) Whether the Appellants properly raised the defence of illegality in their statement of defence for it to avail them and whether the Appellants having not raised the issue of interest at the trial Court, can validity do so in this appeal without the leave of this Court?
At the hearing of this appeal in this Court, the learned counsel for the Appellants and Respondent adopted and relied on their respective briefs of argument. The learned counsel for the Appellants urged upon this Court to allow this appeal, set aside the judgment of the trial Court and dismiss the claim of the Respondent. While the learned counsel for the Respondent prayed this Court to dismiss this appeal and uphold the judgment of the trial Court with substantial costs in favour of the Respondent and against the Appellants.

Before I proceed to consider the real substance of this appeal, I want to quickly advert to the submissions of the learned counsel for the Respondent under his issue three. His contention is that, ground seven of the grounds of appeal has to do with the question about the admissibility of mandate card, exhibit F. Firstly, he argued that since no issue was formulated from ground seven, the ground is deemed abandoned. That the counsel for the Appellants submitted on exhibit F in his brief of argument, whereas, it is exhibit E that ground seven relate to. Having made such an error, the ideal thing for the Appellants to do was to file an application to seek and obtain the leave of this Court to amend the notice and grounds of appeal appropriately. He urged this Court to strike out both ground seven and issue four. The Appellants’ counsel did not file any reply brief. Be that as it may, my reaction to the above is that, at the hearing of this appeal, this Court granted the Appellants’ counsel an indulgence at his request and without an objection from the Respondent’s counsel, to tie issue four to ground seven. In the same vein, in my opinion, reference to exhibit E instead of exhibit F by the Appellants’ counsel is considered as an innocuous slip that is not fatal to the case of the Appellants, what is more, both counsel know that the submissions under issue four have to do with the admissibility of exhibit F and not exhibit E. It is my view and I hold that both ground seven of the grounds of appeal and issue four distilled therefrom are competent.
Now to the main substance of this very straight forward appeal. Although the determination of this appeal has been fragmented into five issues and four issues by the Appellants and Respondent respectively, it is my wish to consider this appeal on issue five of the Appellants’ brief which in effect attacks the decision of the trial Court on the weight of evidence. Actually, the question before this Court is simply to determine whether or not the transaction between the parties was intended to be regulated by exhibit A, the friendly loan agreement.
I have stated above the background facts of this matter. I have equally meticulously considered the submissions of and the legal authorities relied on by the learned counsel for both parties. The dispute in this appeal is centered on the issue as to whether the loan granted to the Appellants is governed by the relevant provisions of the Money Lenders Law, Cap. 100, Law of Bendel State, 1976, as applicable in Delta State as claimed by the Appellants or the Friendly Loan Agreement, exhibit A, as claimed by the Respondent. To my mind, basically, there is no dispute that the Appellants took a loan from the Respondent. However, the Appellants’ claimed that they requested for a loan of Six Hundred Thousand Naira (N600,000.00) but collected Five Hundred and Forty Thousand Naira (N540,000=). The Respondent on the other part claimed that he gave the Appellants the sum of One Million, Fifty-Two Thousand Naira (N1,052,000=) – see paragraphs 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18 and 19 of the Respondent’s amended statement of claim at pages 52 to 54 of the record of appeal. See also paragraphs 3, 4, 7, 8, 9, 11, 12, 13, 14, 15, 16 and 17 of the Appellants’ amended statement of defence, at pages 58 to 60 of the record of appeal.

Before going to the evidence adduced by the parties, it is imperative for me to first and foremost consider and determine the anchor of the relationship of the parties regarding the disputed loan. The Appellants said that because the Respondent is a licensed moneylender, the transaction between them must be regulated by the Moneylenders Law supra. They relied copiously on Section 2, (15)(1)(a), 16(1), 17(1) & (2), 21(2) and 26(1) & (5) of the said Law. The said provisions are contained in pages 4 and 5 of the Appellants’ brief of argument. I do not consider it worthwhile to reproduce same herein. Contrariwise, the Respondent admitted that he is a licensed moneylender but the money in dispute was not lent by him to the Appellants in the course of carrying on the business of money lending, as the 4th Appellant is a long-time friend of his. The Respondent asserted that it was the 4th Appellant that introduced the 1st, 2nd and 3rd Appellants to him and the 4th Appellant urged him to grant the loan of One Million, Fifty Two Thousand Naira (N1,052,000) to them to enable them execute a certain contract, with a promise to repay the money within three months from the day the money was given to the Appellants. In furtherance of the above understanding, the Respondent got his solicitor to prepare the friendly loan agreement which was signed by all parties involved including their respective witnesses. The 4th Appellant was the guarantor. The friendly loan agreement is at pages 6 to 8 of the record of appeal, the terms of the agreement are clear and unambiguous. The Appellants issued a post-dated cheque for the sum collected by them, that is, One Million and Fifty-Two Thousand Naira (N1,052,000=), to the Respondent in anticipation of repayment of the said loan. The Respondent presented the said Diamond Bank cheque at the bank but the cheque was returned to them unpaid, that is, it was a dud cheque. This is exhibit D. The default on the part of the Appellants to repay the loan led to the Respondent to institute an action against the Appellants at the trial Court, to recover the balance of the loan as the Appellants had paid the sum of One Hundred and Ninety Thousand Naira (N190,000=).

It is established that, in the law of contract, the law is that, a written contract or agreement entered into by parties is binding on them. Where there is any disagreement between the parties on any particular point, the only reliable evidence for the resolution of such disagreement is the written contract or agreement of the parties. The reason being that where the intentions of the parties to an agreement are clearly expressed in a document, the court cannot go outside the document in search of other documents or facts not forming part of the intention of the parties. The above is the holding of Adekeye JSC in the very recent case of: Union Bank of Nigeria Plc. V. Ajabule (2012) All FWLR (Pt.611) p.1413 at p.1438, paras. B – D. His Lordship referred with approval to the cases of: (1) S.P.D.C. (Nig.) Ltd. v. Emehuru (2007) 5 NWLR (Pt. 1027) p.347;(2) Larmie v. D.P.M.S. Ltd. (2005) 18 NWLR (Pt. 955) p. 438; (3) Dalek (Nig) Ltd. v. OMPADEC (2007) All FWLR (Pt.364) p.204 and (4) Nneji v. Zakhen Co. (Nig.) Ltd. (2006) 12 NWLR (Pt. 994) p.297.
According to evidence, the terms and conditions of the loan facility are contained in a Friendly Loan Agreement dated 5th of June, 2002 which was duly signed by all the parties on the same day. The agreement was prepared by the Respondent’s solicitor, Oghenero Okoro. It was exhibited by the Respondent during the trial of the case and marked exhibit A – see pages 5 to 8 of the record of appeal. The sum of the loan, that is, One Million, Fifty-Two Thousand Naira (N1,052,000=) was interest free for three months and thereafter it shall start to attract fifteen per centum (15%) per month until the money was fully paid and that the guarantor, 4th Appellant and the borrowers, 1st, 2nd & 3rd Appellants shall be liable jointly to repay the loan and accrued interest to the Respondent the lender in case of default by the borrowers.
The question now is whether the Appellants had made out a case to warrant the application of the Moneylenders Law in the present case? The simple answer is in the negative. It is crystal clear that exhibit A has given an edge to the case of the Respondent over that of the Appellants. In the case of: Nwaolisah v. Nwabufor (2011) 14 NWLR (Pt. 1268) p. 600 at p. 626, paras F – G., the learned Adekeye, J.S.C on the function of the court with regard to contracts entered into by parties held as follows:
The court’s duty is construe the surrounding circumstances including written or oral statements so as attest the intention of the parties. Where the correspondence exchanged between the parties are read together, it can be assumed that the parties have come to an agreement. Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) Pg.547; Nneji v. Zakhem Con. (Nig.) Ltd. (2006) 12 NWLR (Pt. 994) pg.297; Udeagu v. Benue Cement Co. Plc. (2005) 2 NWLR (Pt. 965) Pg. 600.

It is settled that, agreements of parties which are not illegal and do not originate from fraud are to be observed and respected by parties. For the law frowns at approbation and reprobation, which if given legal backing and force will make agreements uncertain and a sham. Therefore, no court will allow itself to be used as an instrument of bad faith and breach of contractual obligations voluntarily entered into by parties before it. This is the firm stance of the Apex Court in the case of: A. – G., Rivers State v. A. – G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) p.31. At pgs. 83, paras. 8 – 11 and 84, para. A, Katsina-Alu, C.J.N (Rtd.), extensively restated this time-hallowed legal principle in these very pungent words as follows:
Surely, it will be inequitable to permit the defendants to walk out of the agreement which on the evidence before me was not obtained by fraud, misrepresentation or deception…………
In the present case, the defendants are estopped from resiling from the terms of the agreement they entered into with the plaintiff. They are strictly bound by them and this court will not allow them either to plead against them or to adduce evidence in their possession against them. I must stress here and this is also settled law that if parties enter into an agreement, they are bound by its terms. See also Hilary Farms Ltd. v. M/V Mahtra (2007) All FWLR (Pt. 190) 1417 at 1435; (2007) 14 NWLR (Pt. 1054) 210.
It does not matter that in the instant case, the defendants have suddenly realized that the terms of the agreement they had entered into with the plaintiff are not favourable to them. Thus, in Arjay Ltd. v. Airline Management Support Ltd. (2003) FWLR (Pt.156) 943 at 900: (2003) 7 NWLR (Pt. 820) 577, thus, this court held as follows:
“It is elementary law that where parties have entered into a contract or an agreement, they are bound by the provisions of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement”………………………………..
Thus, in the owners of the M.V. Lupex v. Nigeria Overseas Chattering & Shipping Ltd. (2003) FWLR (Pt. 170) 14 – 28 at 1445; (2003) 15 NWLR (Pt. 844) 469 at 491 para. G. this court held thus:
“The law is also settled that the mere fact that a dispute is of a nature eminently suitable for trial in a court is not a sufficient ground for refusing to give effect to what the parties have, by contract, expressly agreed to. See Re: an application by the Phoenix Timber Company Ltd. (Appeal of V/O Sovfracht) (1958) 1 Lloyd’s Rep. 305 at 308.”

From the evidence of the parties predicated on their pleadings, oral evidence, documents tendered and the submissions in the briefs filed in support of this appeal, I have no doubt in my mind that the intentions of the parties were meant to crystalize into an agreement between them as evinced in exhibit A.
At the trial, the Respondent as plaintiff testified and called one witness and tendered exhibits to establish his case, see pages 85 to 92 of the record. On the other part, the Appellants in defence called two witnesses that is, the 1st & 4th Appellants but did not tender any document in support of their claim.
I have carefully gone through all the exhibits and the evidence adduced by both parties as well as the judgment of the trial Court. It is quite curious and ridiculous that the Appellants totally denied receiving the sum loaned to them by the Respondent. The claim of the Appellants is that, they signed on blank sheets of paper, they pleaded illegality and led evidence to the effect that the loan agreement is illegal. The learned counsel for the parties presented their respective addresses, see pages 103 to 129 of the record of appeal. The above referred pages of the record of appeal are the evidence in support of the contentions of the respective parties. Generally, it is settled that the trial court is legally saddled with the duty of deciding which of the two versions to believe. This is, basically as in all civil cases, an oath against an oath, that is, the oath of the Respondent as plaintiff against that of the Appellants as defendants. At the end of trial in this matter, the learned trial Judge preferred the version of events as narrated by the Respondent and granted his claim. The next question is: whether the Court was right? My answer to the question is also in the affirmative. In proof of their case, the Appellants relied on their pleadings and oral testimony. On the other side, the Respondent in addition to their pleadings and oral testimony relied on documentary evidence, most importantly exhibits A and D. In the case of: Eya v. Olopade (2011) 11 NWLR (Pt. 1259) p.505 at p.533, the learned Rhodes-Vivour, JSC inter alia held that:
The law is well settled that when documentary evidence supports oral evidence, oral evidence led becomes more credible. This is so because documentary evidence serves as a hanger from which to assess oral testimony. See Kimdey v. M.G. Gongola State (1988) 2 NWLR (Pt. 77) p. 445; Omoregbe v. Lawani (1980) 3 – 4 SC p. 108.

The evidence led by the Appellants was not supported by any relevant document to show that they did receive a loan of Six Hundred Thousand Naira (N600,000=) less administrative charges of Sixty Thousand Naira (N60,000=), thereby leaving them with a balance of Five Hundred and Forty Thousand Naira (N540,000=). On the other side, the Respondent led oral evidence and supported it with most importantly, exhibit A, which is a document duly executed by the Respondent and the Appellants to show that, the Respondent lent to the Appellants the sum of One Million, Fifty Two Thousand Naira (N1,052,000=). Exhibits A and D lend more credence to the case and evidence of the Respondent which I equally accept as being correct. lt should be borne in mind that the Respondent was the plaintiff who instituted the action for the reliefs earlier stated in this judgment and he therefore had the burden of proving his entitlement to the said reliefs on the balance of probabilities. Generally, it is the duty of the Appellants as defendants to defend the action instituted against them by the Respondent as plaintiffs. However, the burden of proof must shift to the Appellants who in turn contested and denied collecting the loan that the Respondent claimed he loaned them, on the preponderance of evidence to establish their own claim.
It is therefore the duties of the parties to prove by evidence the facts asserted by them respectively. To put it in other words, the two parties bear the burden of proving their respective assertions contained in their pleadings, in accordance with the provisions of Section 137 of the Evidence Act.
It is an established elementary law that civil matters are determined on the preponderance of evidence and balance of probability. See (1) Elias v. Omo-Bare (1982) 5 S.C. p.25 and (2) Odulaja v. Haddad (1973) 11 S.C. 357. Section 137 of the Evidence Act provides for the burden of proof in civil cases. The law is trite that he who asserts a fact has the burden to prove it. This is an ancient common law rule, ei qui affirmat non ei qui negat incumbit founded on considerations of good sense that, he who invokes the hand of the law should be the first to prove his case. By the section, the burden of proof is not static, rather, it fluctuates between the parties. Section 137(1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side. In other words, the onus is on the party who would fail if no evidence is given in the case. By Section 137(2);, the second burden goes the adverse party. Under Section 137(3), where there are conflicting presumptions, the case is the same as if there were conflicting evidence. In the case of: Orji v. Dorji iles Mills (2009) 40 NSCQR p. 597 at p. 620 paras. B – H the erudite jurist, Niki Tobi, JSC on the issue of the burden of proof in civil matters espoused as follows:
The burden is on a plaintiff to show that he is entitled to the reliefs sought. That burden does not shift to the defendant. See Elias v. Disu (1962) 1 All NLR 214; The Nigeria Safety Insurance Co. Ltd. v. Zaria Cooperative Credit Marketing Union Ltd. (1978) 1 NCA 1; Echeazu v. Awka Community Council (1980) 7 CA (Part 1) 103; Combine Trade Limited v. All States Trust Bank Limited (1998) 2 NWLR (Pt. 576) 56.
After all a plaintiff should not rely on the weakness of the case of a defendant but rather on the strength of his case as proved in court. See Attorney-General of Anambra State v. Onu Seloqun – (1987) 4 NWLR (Pt. 66) 547; Nimeanteks Associatates v. Marco Construction Co. Ltd. (1991) 2 NWLR (Pt. 174) 411; Tokimi v. Fagite (1999) 19 NWLR (Pt. 624) 589; Olowu v. Olowu (1985) 3 NWLR (Pt.13 372. Accordingly, a plaintiff who fails to prove the relief or reliefs sought goes home without victory. There are no two ways about it. Our adjectival law is as constant as that, like the sun rising from the East and setting in the West.
The burden of proof in a case cannot be determined in vacuo but in relation to the issues raised in the pleadings. Where a fact is pleaded and no evidence is adduced to prove the fact pleaded no onus is cast on the other side to disprove the fact not proved.

Generally, at common law, 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. Thus, interest will be payable where there is an express agreement to that effect, which agreement may be inferred from either a course of dealing between the parties or where there is an obligation to pay interest in a particular business like banking. See the cases of: (1) Alforin Ltd. A.-G., Fed. (1996) 9 NWLR (Pt. 475) p.634 at p.638; (2) Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt. 1172 ) p.67 and (3) G.K.F.I. (Nig.) Ltd. v. NITEL Plc. (2009) 115 NWLR (Pt. 1164) P.344.
In the case of G.K.F.I. (Nig.) Ltd. v. NITEL Plc. Supra at p. 379, paras. C – H and p.380, paras. A – F, Ogbuagu, JSC, meticulously spelt out the principles of law guiding the award of interests in the following words:
As to the issue on award of interest, it need be stressed that a judgment debt, is a debt or damage or other monetary award, which has been pronounced upon by a court of competent jurisdiction. It begins, when the court has pronounced on its judgment in favour of the plaintiff. Interest on a judgment debt is therefore, interest after adjudication. It cannot be before that incident. So, to award interest on the judgment debt from the date of accrual of the cause of action, is a contradiction in terms. So said this court in the case of Ekwunife v. Wayne (West Africa) Ltd. (1989) 5 NWLR (Pt. 122) 422; (1989) 12 SCNJ 99 at 118. ……….
In this country, the various High Court Rules of each State, make provision for the power to award interest. …………… It is not mandatory or obligatory that interest thereunder, must be claimed on the writ pleaded in the statement of claim. ……. But before a court can depart from this power and award interest at the rate different from that provided in the Rules per annum, under a discretion envisaged by the opening clause of the rule, there must be facts and/or circumstances, to justify such a course. See the case of Wayne v. Ekwunife (supra) at 120.
I am aware that in the case of Augustus F.I. Ibama v. Shell Petroleum Development Co. of Nigeria Ltd. (1980) 3 NWLR (Pt.542) 493 at 500 CA.- per Uwaifo, J.C.A. (as he then was), it was held that the general rule, is that monetary judgment, attracts appropriate interest even when one is claimed, See also the case of Nigeria General Superintendence Ltd. v The Nigeria Ports Authority (1990) 1 NWLR (Pt. 129) 741 at 74 C.A. But in the case of London, Chartham and Dover Railway Co. v. South Eastern Railway Co. (1893) A.C, 429 at 434, it was held that the general rule at common law, is that 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. Interest will however, be payable, where there is an express agreement to that effect and such agreement, may be inferred from a course of dealing between the parties. See the case of Re Duncan & Co. (1905) 1 Ch. 307, or where an obligation to pay interest, arose from the common or usage of a particular trade or business.
In the case of Himma Merchants Ltd. v. Alhaji Aliyu (1994) 5 NWLR (Pt. 347) 667; (1994) 6 SCNJ (Pt. 1) 87 at 94 – 95, 97 – per Onu, J.S.C., it was held that there are legally two ways by which a claim for interest on a sum of money claimed as a debt, can arise. Firstly, as of right or secondly, where there is power conferred by statute to do so in the exercise of the court’s discretion. His Lordship referred to Ekwunife v. Wayne (West Africa) Ltd. per Nnaemeka-Agu, J.S.C and vice versa citing London Chattam & Dover Railway (supra). That the Statutory interest, will only begin to run, from the date of the judgment. That the Statutory interest on a judgment debt, is distinct and separate from the interest which a plaintiff, must include in the Statement of Claim to the writ as being based on a contract or on the statute, as the case may be, before he can hope to recover it. See also the cases of Ogbu & 4 Ors. V. Ani & 4 Ors. (1994) 7 NWLR (Pt. 355) 128; (1994) 7 SCNJ 383 and Jallco Ltd. & Anor. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR (Pt.391) 534; (1995) 4 SCNJ 256 at 274.
On the face of exhibit A, the agreement executed by the parties, it is patent that, the parties had agreed that the loan will attract an interest of fifteen per centum (15%) per month, if it was not liquidated within three months of grant. The said interest will continue to run until such a time that the lender, the Respondent herein decides to take legal action to recover the loan or the final liquidation of it. In the given circumstances of this matter the law does not behove the Respondent to adduce evidence in proof of this issue, he is naturally entitled to the claim having been agreed upon in exhibit A. Equally, the Respondent is also entitled under statute, that is, the Rules of the High Court of Delta State to an interest of twenty per centum (20%) per annum on the judgment debt/sum from the date the judgment of the trial Court was delivered to the date the sum is fully liquidated – see Order 35 rule 7 of the High Court (Civil Procedure) Rules of Delta State, 2009.

Regarding the issue of reception and evaluation of evidence and findings of fact, in the case of: Guardian Newspapers Ltd. v. Aieh (2011) 10 NWLR (Pt. 1256) p.574, Rhodes-Vivour, JSC at p. 592 para. G had the following to say:
Receipts of relevant evidence is perception, while evaluation entails the weighing of the evidence bearing in mind the surrounding circumstances of the case. Findings of fact by trial Judge involves both perception and evaluation.
On the duty of the trial court with regard to evaluation of evidence and attitude of an appellate court thereto, the learned Jurist, Rhodes-Vivour, JSC at page 592, paras. C – F went further to say that:
This court has stated again and again that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and assessed the witnesses as they testified at the trial in the witness box. It is equally basic that where such court of trial unquestionably evaluates the evidence before it and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own view for those of the trial court.
See Akpagbue v. Ogu (1976) 6 SC P. 63;
Woluchem v. Gudi (1981) 5 SC p. 391;
Ibanga v. Usanga (1982) 5 SC p. 103;
The trial Judge would have no difficulty in arriving at the correct decision if evidence if properly evaluated. Consequently, where evidence is properly evaluated i.e to say when all the principles of law relevant are properly considered, an appeal court would be in much difficulty trying to disturb the findings arrived at by the trial Judge.
Such findings cannot be disturbed by an appeal court.

Therefore to succeed in an appeal, an Appellant must show the appellate court that the trial court against whose decision he appealed made errors either in the appraisal of the facts or application of law to the facts to warrant the intervention of the appellate court. See the cases of: (1) Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) p. 101; (2) Shittu v. Fashawe supra at p. 44, para. D; (3) Wilson v. Oshin (2000) 5 S.C (Pt. 111) p. 1 and (a) Ukejiana v. Uchendu 13 WACA p. 43 at p. 46.
From the foregoing elucidations under this issue, I am of the strong view and I hold that the learned trial Judge in this matter did not make errors either in his evaluation of the evidence adduced before him or application of laws to these facts. I have no reason whatsoever to disagree with his findings
After reviewing the entire circumstances of this matter, the pleadings, oral and documentary evidence led in support, I am firmly of the opinion and I hold that, the learned trial Judge methodically reviewed the evidence adduced by the parties at the trial Court. On the above posers, the learned trial Judge at pages 26 and27 of the record of appeal inter alia found as follows:
From the facts and evidence adduced before Court it is clear that exhibit A and no other is that which gives the Plaintiff and the Defendants a contractual relationship for which it is headed ‘friendly loan agreement” and for (sic) which is signed by 1st – 3rd Defendants as borrowers, and 4th Defendant as guarantor of the parties to a contract (sic) are clearly expressed in a document in search of other documents not forming part of the intention of the parties.
In the instant case, exhibit A, clearly provide for the terms of the agreement/contract (friendly loan agreement between the parties and it is also proper not to go outside the exhibit A.——–
The Defendants cannot therefore run away from the contents in exhibit A, which is the contractual relationship between the parties enforceable by the Plaintiff.
There is no iota of doubt in my mind that the findings of the learned trial Judge, in the circumstances of this matter, are not perverse, I therefore find no reason, whatsoever to interfere with them. It is my conclusion and I hold that the grounds of appeal and all the issues distilled therefrom are completely devoid of merit and are accordingly resolved against the Appellants and in favour of the Respondent.
This appeal is lacking in merit and it is dismissed accordingly.
In the final analysis, on the amounts due from the Appellants to the Respondent, there is no controversy that before the commencement of the Respondent’s action at the trial Court, the Appellants had paid the sum of One Hundred and Ninety Thousand Naira (N190,000.00), leaving the sum of Eight Hundred and Sixty two Thousand Naira (N862,000.00) as the balance of the principal sum being owed the Respondent by the Appellants. I therefore hold and hereby order that, the Respondent is entitled to the said balance of Eight Hundred and Sixty Two Thousand Naira (N862,000.00). Pursuant to Clause 3(C) of exhibit A, the Respondent is further entitled to an interest of fifteen per centum (15%) per month on the said balance from October, 2002, that is, at the expiration of three months after the loan was granted to the Appellants in June, 2002 until the 17th day of January, 2005, when the Respondents took the writ against the Appellant. By the provisions of Order 35 rule 7 of the High Court (Civil Procedure) Rules of Delta State, 2009, the Respondent is further entitled to twenty per centum (20%) per annum on the said balance from the day the judgment of the trial Court was delivered, that is, the 20th day of May, 2008 until the said balance is fully liquidated.
I award the sum of Thirty Thousand Naira (N30,000.00) as the costs of this appeal in favour of the Respondent and against the Appellants.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

GEORGE OLADEINDE SHOREMI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother Omoleye JCA. The intentions of the parties in a written contract is always to be gathered from the documents itself. The terms of the contract are to be determined by the parties and not court. All that a court does is to construe the words used by the parties in the agreement. See DANTATA V. DANTATA (2002) 4 NWLR (Pt.756) 144. Thus if the parties have agreed between themselves upon conditions for the formation of a contract and those conditions were embodied in a document then they are bound by the terms and conditions set down in the documents.
Having so bound themselves it is not the duty of the court to make a contract for the parties. See OWONIBOYE TECK SER. LTD. V. U.B. LTD. (2003) 15 NWLR (Pt.844) 545 SC. The finding of the trial court cannot be faulted.
All issues in this appeal are resolved against the Appellant in favour of the Respondent. The appeal is devoid of merit and it is dismissed with N30,000 cost against the Appellant.

Appearances

G.J. Odjeba Esq.For Appellant

AND

Oghene Okoro Esq.For Respondent