FAIRLINE PHARMACEUTICAL INDUSTRIES LTD & ANOR V. TRUST ADJUSTERS NIGERIA LTD (2012)

FAIRLINE PHARMACEUTICAL INDUSTRIES LTD & ANOR V. TRUST ADJUSTERS NIGERIA LTD

(2012)LCN/5726(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of December, 2012

CA/PH/300/2007

RATIO

AGENCY: WHO IS THE PROPER PERSON TO SUE IN A CONTRACT OF A DISCLOSED PRINCIPAL

The general principle of law is that, a contract made by an agent, acting within the scope of his authority and for a disclosed principal is, in law, the contract of the principal and the principal and not the agent is the proper person to sue or be sued upon such a contract. The common law rule is, qui facit per allium, facit perse, a sam facere indepur; which means that, he who acts or does an act through another, is deemed in law to do the act himself. In other words, where a person making a contract discloses the existence and name of a principal on whose behalf he purports to make that contract, he is, on general principles, not liable on the contract to the other contracting party. The contract is deemed to be that of the disclosed principal, and it is therefore the principal, and not the agent that is the proper person to either sue or be sued upon such contract. See CARTENS v. UNIJOS (2000) 19 W.R.N. Pg.167 at 189; VINZ INT’L (NIG.) LTD. v. MOROHUNDIYA (2009) 11 NWLR (Pt.1153) Pg.562; U.B.A. PLC. v. OGUNDOKUN (1138) Pg. 450; UKPANAH v. AYAYA (2011) 1 NWLR (Pt.1227) Pg.61; AMADIUME v. IBOK (2006) 6 NWLR (Pt.975) Pg.158; BAYERO v. MAINASARA & SONS LTD (2006) 8 NWLR (Pt.982) Pg. 391 and OSIGWE v. PSPLS MGT CONSORTIUM LTD. (2009) 3 NWLR (Pt.1128) Pg.378.

PLEADINGS: WHAT CONSTITUTES PLEADINGS

It is the law that, pleadings are mere averments which require proof by oral or documentary evidence. Thus any fact pleaded but on which no evidence is led is deemed abandoned and must be discountenanced. See ODUWOLE v. WEST (2010) 10 NWLR (Pt.1203) Pg. 598; S.A.F.P. & U v. U.B.A. PLC (2010) 17 NWLR (Pt.1221) Pg.192 at 207 Paras. F – G and OSADM v. TAIWO (2010) 6 NWLR (Pt.1189) PG.155. PER HARUNA SIMON TSAMMANI, J.C.A.

AGENCY: CIRCUMSTANCES A DIRECTOR OF A COMPANY WILL BE LIABLE FOR CONTRACTS ENTERED INTO ON BEHALF OF THE COMPANY

Now, it is the law that, a company being an artificial person cannot act on its own person. It can only act through directors and therefore the acts of the directors is merely that of ordinary case of principal and agent. In other words, where a director enters into a contract in the name of an incorporated body, it is the company, the principal, which is liable not the director. The director is therefore not personally liable, unless it appears that he undertook personal liability such as, where he signs the contractual document without signifying that he was signing on behalf of the company. In other words, where a director signs a contract in his name without disclosing either the name or the existence of a principal, he would be held liable personally in the contract to the other party to the contract, even though he is in fact acting on the principal’s behalf. See B.B. APUGO & SONS LTD v. O.H.M.B. (2005) 17 NWLR (PT.954) PG.305 and ATAGUBA & CO v. GURA (NIG.) LTD. (2005) 8 NWLR (Pt. 927) Pg. 429. PER HARUNA SIMON TSAMMANI, J.C.A.

COMPANY LAW: CIRCUMSTANCES THE COURT WILL LIFT THE CORPORATE VEIL OF A COMPANY

PLEADINGS: BINDINGNESS AND ESSENCE OF PLEADINGS OF PARTIES

PLEADINGS: NATURE OF A TRAVERSE

Now, it is the law that a traverse is a categorical denial in a statement of defence of any fact specifically pleaded or alleged in a statement of defence. Though the law permits of a general traverse which may come either at the beginning or end of the statement of defence, it is the accepted principle of law in our jurisdiction that, every essential and material allegation in a statement of claim, must be clearly and categorically answered by a defendant. In that respect, a general traverse is not a good way of answering such essential and material allegations in a statement of claim. Accordingly, every material allegation of fact in a statement of claim must be specifically answered or traversed. It means therefore that, a general traverse is not enough to controvert material and essential averments in the statement of claim, and which averments may be a crucial issue in the Plaintiff’s claim. In that respect, the law requires that every essential and material allegation in a Plaintiffs claim or pleading should not be answered in a statement of defence by a general denial or traverse, but must be specifically traversed, because, that is the only way such denial can meaningfully give rise to an issue in a claim by the plaintiff. The denial or traverse in a defendant’s pleading must therefore be frontal and direct, and must answer to the specific allegations in the Plaintiffs claim. Where an allegation in the statement of claim is not specifically denied, or the denial is ambiguous and evasive, it would be deemed that the defendant has admitted the specific averment in the Plaintiff’s pleading. See AMUZIE v. ASONYE (2011) 6 NWLR (Pt. 1242) Pg. 19; EZE v. OKOLOAGU (2010) 3 NWLR (Pt. 1180) Pg. 183; ALI v. SALIHU (2011) 1 NWLR (1228) Pg.227; C.B.N v. DINNEH (20l0) 7 NWLR (Pt.1221) Pg. 125 and BAMGBEGBIN v. ORIARE (2009) 13 NWLR (Pt. 1158) Pg. 370. See also ADEBIYI v. OKEBIORUN (2009) 15 NWLR (Pt. 1165) Pg.576. PER HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

1. FAIRLINE PHARMACEUTICAL INDUSTRIES LTD.

2. NZE F.I. ONWADIKE – Appellant(s)

AND

TRUST ADJUSTERS NIGERIA LTD. – Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A.: (Delivering the Leading Judgment): This appeal is against the judgment of N.C. Oni; J of the Abia State High Court delivered on the 15th day of March, 2006.

The Respondent as Plaintiff at the court below, had taken out a Writ of Summons against the Appellants, as Defendants, where by paragraphs 23 of the Statement of Claim, the Respondent claimed as follows:

“23. Wherefore the Plaintiff claims against the Defendant jointly and severely.

1. (i) a declaration that based on the Consultancy Agreement between the 1st Defendant and the Plaintiff, the Plaintiff identified that a total sum of N19,850,245.24 (Nineteen million, eight hundred and fifty thousand, two hundred and forty-five naira, twenty four kobo) representing excess charges which were wrongly imposed on the 1st Defendant’s Account operated in First Bank of Nigeria Plc, Aba main Branch by the said First Bank of Nigeria Plc.

(ii) a declaration that based on the Consultancy Agreement between the Plaintiff and the 1st Defendant, the Plaintiff is entitled to 25% of the identified excess interest or other charges with a monthly interest of 2% per month until the due sum is fully paid.

(iii) A declaration that under the said Agreement the Plaintiff became entitled to 25% of the total amount identified and presented to the First Bank of Nigeria Plc with interest at the rate of 2% per month upon the termination of the said Agreement by the f Defendant in his letter dated 28th June, 2001.

2. The sum of N7,591,271.11 (Seven million, Five hundred and Ninety-one thousand two hundred and Seventy-one naira Eleven kobo) representing the principal earning due to the Plaintiff and interest thereon based on the Agreement and the identified sum up to the 18th day of September, 2001 and thereafter, interest on the principal sum and accrued interest at the rate of 2% per month.

The parties filed and exchanged pleadings at the court below. The Respondent’s (Plaintiff’s) case as revealed in the Statement of Claim is that, by a consultancy services Agreement dated the 2409/1999, the 1st Appellant under the hand of the 2nd Appellant contracted the Plaintiff/Respondent to undertake the Banking Operations Review (BOR) of the 1st Defendant/Appellant’s bank account with the First Bank of Nigeria Plc, Aba (Main) Branch with a view to identifying and recovering a number of its banking transactions with the bank, which included excess bank charges or COT, Overdraft (O.D.), equipment leasing, foreign currency balances still held by Nigerian or Foreign correspondent banks arising from offshore interest etc. That the Respondent was to tender the services for a period of five years or as may be extended by the Appellants. The services rendered by the Respondent was to attract a consultancy fee of 25% of the total amount recovered from the bank, and which amount was to be paid upon demand within five days, failure of the Appellants to pay would attract an interest of 2% per month on the principal amount due, until the whole sum is liquidated. It was also the Respondent’s case that, in the event of the Defendants/Appellants terminating the Agreement without its written consent, the Defendants/Appellants would immediately become liable to pay to it 25% of the amount identified and presented to the bank before or at the time of termination.

It was also the case of the Plaintiff/Respondent that, it commenced work in line with the agreement after it had obtained the 1st Defendant/Appellant’s Statement of Account with the First Bank of Nig. Plc with the Aba (Main) Branch, from the 2nd Defendant/Appellant. That it uncovered excess charges on COT, VAT, OD, Excess debit on loan repayment and interest on term loan, which he made into a 92 paged brochure dated 17/8/2000, which he submitted to the bank, and that the bank acknowledged receipt of the report, and assured the Respondent that its inspectors were carrying out indepth investigation into the claims with a view to reconciling same with the report. That in the course of the investigation, a series of correspondences passed between it and the bank, and that in the course of those correspondences, it received a telephone call from the First Bank requesting for a meeting between the Respondent, the Appellants and officers of the bank to conclude the issue of the excess charges, and to arrange for payment to the 1st Appellant by the bank. That upon becoming aware of this development, the Appellants on the 06/7/2001, served on the Respondent a letter dated 28/6/2001, unilaterally terminating the Consultancy Agreement without the prior notice of the Respondent. That it was disappointed by the Appellants action, whereof it demanded from the Appellants vide a letter dated 20/07/2001, the immediate payment of its entitlement in accordance with the terms of the contract. That it also wrote the Appellants another demand letter through its solicitors, but the Appellants replied, denying liability.

The Defendants/Appellants’ also filed a statement of defence, denying liability and alleged that the contract was illegal, unenforceable, contrary to public policy and therefore null and void. They further claimed that the Consultancy Agreement contemplated not only identification and presentation of the excess charges, but recovery of same as well. However, at the trial, the Defendants/Appellants did not call any evidence in support of their defence, but elected to rest their case on that of the Plaintiff/Respondent. Written Addresses were filed and exchanged, and the learned trial judge in a well considered judgment delivered on the 15/3/2006, gave judgment to the Plaintiff/Respondent upon his claim. The Defendants/Appellants are displeased by the judgment of the lower court and have now filed this appeal.

The Notice of Appeal consisting of eleven (11) Grounds of Appeal was dated the 26/5/2006 and filed the same day. I hereunder reproduce the Grounds of Appeal, without their particulars:

1. The learned trial judge erred in law in entering judgment in favour of the Plaintiff who did not establish its juristic personality.

2. The learned trial judge erred in law when she held that paragraph 1 of the statement of defence was a mere general denial and evasive.

3. The learned trial judge erred in law in entering judgment against the 2nd defendant.

4. The learned trial judge erred in law in entering judgment in favour of the Plaintiff when the claim was confused, at variance with the pleadings and starved of vital information.

5. The learned trial judge erred in law when it entered judgment in favour of the plaintiff on the basis of claim before the court.

6. The learned trial court erred in law in entering judgment against the Defendants when the Plaintiff did not discharge the burden placed on it by law.

7. The learned trial judge erred in law and caused a miscarriage of justice by refusing to consider and resolve the fundamental issue raised by the Appellants.

8. The learned trial judge erred in law in failing to hold that the Plaintiff did not prove its case in spite of the failure of the Appellants to testify.

9. The judgment is against the weight of evidence.

10. The learned trial judge erred in law and caused a grave miscarriage of justice when she held as follows:

“Further in their denial of the identification and presentation to the bank of the said sum of N19,850,245.24, defendants submitted that Exhibit “C” on which the claim is founded is worthless, having been prepared before plaintiff formally was allowed access to the relevant bank records. The uncontradicted evidence before court with regards to this particular submission as given by the PW1 is that the moment plaintiff was commissioned to undertake the consultancy service in September, 1999, they entered into the bank’s record/statement secretly through the 2nd defendant from whom they received all the documents they needed in order to avoid the banks becoming aware of the exercise at that early stage. It is the evidence of the P.W.1 that the information gathered at that stage might take them to investigate the matter without the bank’s knowledge as the exercise was sort of research work on any item suspected to have been in excess of the charge. They then analyze these findings and produce a report. After compiling their report, they now ask their client to introduce them formally to the bank, According to PW1, that was the reason for the Report having an earlier date than the letter of introduction. Although this piece of evidence was elicited under reexamination of the witness, there was no challenge to it.

In the face of the evidence therefore, it is my view that the submission by the defendants that Exhibit “C” is worthless is untenable, as there is no evidence led by them to discredit or show what made the document worthless.”

11. The Learned trial judge erred in law and cause (sic) a great miscarriage of justice when she held that:

“From the foregoing, the confusion defendants must have had over the plaintiff’s claims with regards to the sum identified and presented to the bunk and the subsequent increase of the identified sum as a result of “revised charges” were adequately explained by the plaintiff through Exhibits F, F1, and F4. But despite their confusion, defendants did not thing (sic) it fit to get the witness, while he was still on the witness stand, to unravel the mystique or dispel the confusion through cross-examination. In effect, the defendants did not challenge the evidence on the issue. Having not challenged the evidence of the plaintiff in that regard, defendants cannot be heard to complain about the principal sum as well as the amount due to plaintiff claimed as not being genuinely identified.”

By the Rules of this court, appeals are heard through the filing of briefs of argument. Consequently, in obedience to the Rules of this court, the parties in this appeal, filed and exchanged brief of argument. The Appellants’ Brief of Argument settled by O. A. Obianwu, SAN was dated the 25/4/2008 and deemed filed the 22/09/2008 vide Motion on Notice dated the 25/4/2008 and filed same day. Therein, the Appellants nominated four (4) issues for determination as follows:

(1) Was the court below right to have entered judgment against the 2nd Defendant who was not a party to Exhibit A. (Ground 3).

(2) Was the court below right when it concluded that the Plaintiff needed not establish its juristic personality since no issue was joined on the juristic personality of the Plaintiff – (Grounds 1 and 2).

(3) Was the court below right to have entered judgment for the plaintiff in the light of the conflicts inherent in the Plaintiffs claim – (Grounds 4 and 11)

(4) Was the court below right to have entered judgment in favour of the Plaintiff in the light of the evidence before the court – (Grounds 5, 6, 7, 8, 9 and 10).

The Respondents Brief of Argument settled by Emmanuel C. Ukala; SAN is dated the 2/4/09 and filed the 03/4/09. In the said Brief of Argument, the Respondent formulated only one issue for determination. That is:

“Whether the learned trial judge was right when he entered judgment for the Plaintiff against the 1st and 2nd Defendants?”

At the hearing of the Appeal on the 18/10/2012, both parties adopted their Briefs of Argument. While the Appellants urged us to allow the appeal and set aside the judgment of the trial court, the Respondent urged us to dismiss the appeal and affirm the judgment of the court below.

I have considered the issues nominated by the parties. Upon a sober consideration, I hold the view that this appeal be heard on the issues nominated by the Appellant. In determining this appeal however, I shall consider 1 and 2 independently, while issues 3 and 4 will be considered together.

Now, in arguing issue No. 1, learned counsel for the Appellant contended that, the complaint of the Appellants here is that since the 2nd Defendant was not a party to Exhibit “A”, which is the contract between the 1st Appellant and the Respondent, he could not be held liable in respect of the contract which he was not a party to, as he merely acted as an agent of a disclose principal. That it is also clear from the reliefs 1(i) and (ii) that the contract was between the Respondent and the 1st Appellant, and that the Appellants raised this plea in paragraph 14 of the Statement of Defence. Relying on the cases of OKOLO V. U.B.N. PLC. (2004) All FWLR (Pr. 197) Pg 981 at 1002 Paras. F-H and NEGBENEBOR v. NEGBENEBOR (1971) All N.L.R. Pg. 213 and the testimony of the P.W.1 under cross-examination at page 32 lines 22 – 27 of the record of appeal, to submit that the 2nd Appellant is not a party to the contract. Learned counsel submitted further that there is no evidence on the record to show that the 2nd Appellant was the controller, directing mind, alter ego of the 1st Appellant as held by the learned trial judge or that he (2nd Appellant) directed the 1st Appellant into “wanton acts of the breach of agreement.” Citing also the cases of AJAYI V. TEXACO NIG. LTD. (1987) 3 NWLR (Pt.62) Pg. 577; OJO OSAGIE v. ADONRI (1994) 4 NWLR (Pt. 349) Pg.131 and STATE v. AIGBANBEE (1988) 3 NWLR (Pt.84) Pg. 548, learned Appellant’s counsel submitted that, it is settled law that a court must not only act on evidence before it, it must not speculate nor scrounge for evidence.

Learned counsel for the Appellant contended on the basis of the decisions in EGBA v. OGODO (1984) 4 S.C. 84; OGUNDELE v. OLABODE (1973) 2 S.C. Pg. 71 and LOKOYI v. OLOJO (1983) 8 S.C. Pg. 61 that, the only evidence before the court was that the 2nd Defendant/Appellant was a director of the 1st Defendant/Appellant. That the mere fact that he wrote the letter dated the 28/6/2001 on behalf of the 1st Appellant, does not attract any liability to him. That, after all, the 1st Appellant is an artificial person who acts through individuals, and that such individuals do not by such fact transform into parties to a contract made between two other distinct persons in law so as to saddle them with liability.

Learned counsel for the Respondent contended that the Respondent pleaded at paragraph 3 of the Statement of Claim that, the 2nd Respondent was at all times material to the subject matter of this suit, “the alter ego and the Chairman/Chief Executive of the 1st Defendant,” and therefore it has been made clear that the 2nd Appellant was sued as “the alter ego” of the 1st Appellant and not as its disclosed agent. That the finding of the learned trial judge at pages 106 and 107 of the record that, the 2nd Appellant was indeed the alter ego of the 2nd Appellant is therefore justified as it is supported by the evidence on record. He then referred to the definition of “alter ego” in BLACK’S LAW DICTIONARY (7th Edition) and proceeded to submit that the evidence on record show that the 2nd Appellant is inseparable from the 1st Appellant, and that beyond using the 1st Appellant to conduct the transaction subject of this dispute, it was the 2nd Appellant who initiated the transaction, sustained same and terminated it. That he was the controlling and directing mind of the 1st Appellant at all times material. That Exhibit “A”, “B” and “J” were all signed by the 2nd Appellant. Reference was also made to an incident between the 2nd Appellant on one hand, and the P.W.1 and one Mr. Ezenwa Nwosu, a director of the Respondent on the other hand, whereat, the 2nd Appellant said that, the Respondent makes “too much money with ordinary fountain pen” and which statement was neither challenged nor contradicted.

Learned Respondent’s counsel went on to submit that, it is also in evidence that the Respondent received all documents needed from the Appellants for the purpose of executing the contract, from the 2nd Appellant. That based on the evidence before the court, the learned trial judge was right when he came to the conclusion that the 2nd Appellant is the controller, directing mind and alter ego of the 1st Appellant. The cases of OKEKE v. STATE (1999) 2 NWLR (Pt. 590) Pg.246 at 280-281; OKOKO v. DAKOLO (2006) All FWLR (Pt.226) Pg.1280 at 1311 – 1312 were then cited to submit that, it is now judicially accepted that an inference may be made by a trial judge from the evidence adduced before him, so as to draw conclusion from the facts, and such exercise does not amount to speculation.

While conceding that an agent of a disclosed principal is not liable for the act within his scope of authority which he effected on behalf of his principal, learned counsel submitted that the position of the law has not distracted from the age long position of the law that, where an alter ego of a company wrongfully directs the company unto wanton acts of breach of Agreement, the law permits that the corporate veil be lifted in the interest of justice in order to reach that alter ego and hold him liable for his act. The cases of INT’L OFFSHORE CONST. LTD v. S.L.N. LTD. (2003) 16 NWLR (Pt.3450) Pg.157 at 180 Paras. B – D and PUBLIC FINANCE SECURITIES LTD v. JEFIA (1993) 3 NWLR (Pt.534) Pg.602 at 614 Paras. C-G; were cited to further submit that, the law will never allow the veil of corporation of a company to be used to justify any wrongful act and that the court will pull down the mask or lift the veil, so as to see what really lies behind it. Learned Respondent’s counsel therefore submitted that the learned trial judge’s conclusion in this regard is unassailable.

From the above stated legal principles, it would therefore mean that, an action against an agent in his private capacity for acts done on behalf of a known and disclosed principal is incompetent. In that respect, such agent of a disclosed principal cannot be joined as a party with his principal in a claim arising from such agency relationship, and if he is so joined, the court will strike out the case against such agent. See UKPANAH v. AYAYA (supra) at Pg.88 Paras. B-C. In the instant case, the Respondents have not denied that the 2nd Defendant/Appellant is an agent of the 1st Defendant/Appellant. Indeed the contract document Exhibit “A” reveals that the 2nd Appellant signed same as Director of the 1st Appellant “Fairline Pharmaceutical Ind. Ltd. The Respondent as Plaintiff at the court below had pleaded in Paragraph 3 of the Statement of Claim that, the 2nd Defendant/Appellant was all times material to the subject matter of this suit, the alter ego and the Chairman/Chief Executive of the 1st Defendant and which fact was denied by Paragraph 3 of the Appellants’ statement of defence. At the hearing of the case, the P.W.1 who testified for the Plaintiff/Respondent stated in his evidence-in-chief that:

“I know the 2nd defendant Nze Onwadike. He is the Chief Executive of the 1st defendant. He entered into a consultancy agreement dated 24/09/99.”

He then stated under cross-examination at page 52 lines 4-11 that:

“Nze F. I. Onwadike – 2nd Defendant was a party to this agreement. The name of the 2nd defendant is not provided for in the contract.

The names of the parties to the contact are on the contract document. Though 2nd defendant was not named as a party to the contract, he signed the contract agreement as a director of the 2nd defendant company (sic).”

It is apparent therefore from the testimony of the sole witness in this case (P.W.1) that, the 2nd Defendant/Appellant’s name does not appear on the contract document (Exh “A”) as a party. Indeed, the contract document shows that the contract was entered into by FAIRLINE PHARMACEUTICAL IND. LTD AND TRUST ADJUSTERS (NIG) LTD i.e the 1st Appellant and the Respondent. The 2nd Appellant merely signed as Director of the 1st Appellant.

The case of the Respondent as Plaintiff at the lower court, as I understand it, is that, the 2nd Appellant is not merely a Director of the 1st Appellant’ but the Chairman/Chief Executive and also the alter ego of the 1st Appellant. Though the Appellants had denied that averment by Paragraph 1 of their statement of defence, they led no evidence thereon, as they did not call any evidence at the trial but chose to rely on the case as put up by the Respondent. It is the law that, pleadings are mere averments which require proof by oral or documentary evidence. Thus any fact pleaded but on which no evidence is led is deemed abandoned and must be discountenanced. See ODUWOLE v. WEST (2010) 10 NWLR (Pt.1203) Pg. 598; S.A.F.P. & U v. U.B.A. PLC (2010) 17 NWLR (Pt.1221) Pg.192 at 207 Paras. F – G and OSADM v. TAIWO (2010) 6 NWLR (Pt.1189) PG.155.

Now, in considering the issue, the learned trial judge held as follows:

“The Plaintiff, in both its pleadings and evidence on Oath claimed that the 2nd defendant is the alter ego of the 1st defendant. The evidence before me is to the effect that the 1st defendant is the company of the 2nd defendant and under his control. The defendants accepted the fact that 2nd defendant is the Chief Executive of the 1st defendant. According to the uncontroverted evidence before the court, the 2nd defendant signed Exhibit “A” on behalf of the 1st Defendant, an artificial person. Not only was it the 2nd defendant that executed the agreement and in the agreement he signed for the 1st defendant but also he wrote and signed Exhibit “J” that determined the contract. Thus, the evidence before me lends credence to the …that the corporate shell of an incorporated company can be cracked where the interest of justice so demands.”See pages 106-107 paragraphs 25-5 of the record of appeal.

The learned trial judge then proceeded to draw interferences from the above stated findings to hold that, the 2nd defendant has been proved to be the controller, directing mind and the alter ego of the 1st Appellant. He therefore held that:

…The effect of failing to adhere to the condition precedent before terminating the contract as provided in Exhibit “A”, is that 2nd defendant misdirected the 1st defendant into terminating the said contract. I therefore agree with Mr. Agwu that where an alter ego of a company wrongfully directs the company into wanton acts of the breach of the Agreement, the law permits the lifting of the corporate veil in order to reach that alter ego and hold him liable for his act. The 2nd defendant, being the directing mind, the controller and the alter ego of the 1st defendant. I find that it was not improper on the part of the Plaintiff to join 2nd defendant as co-defendant to this action.”

The learned senior counsel for the Appellants contends that there is no evidence on the record to show that the 2nd Appellant is the controller, directing mind and alter ego of the 1st Appellant. I do not think that the learned senior counsel got the learned trial judge right. What the learned trial judge did was to draw inferences from the evidence on record, which tended to justify the Respondent’s claim that the 2nd

Appellant is the alter ego and chairman/chief Executive of the 1st Appellant. The learned counsel for the Appellants did not claim that the learned trial judge had no power to draw those inferences or that the inferences he drew were based on wrong or faulty premises.

It is however clear from the judgment of the trial court that the learned trial judge did not hold the 2nd Appellant liable in the contract as a director, but as the alter ego of the 1st Appellant. The BLACK’S LAW DICTIONARY; 8th Edition; defines an alter ego at page 89 thus:

“A corporation used by an individual in conducting personal business, the result being that a court may impose liability on the individual by piercing the corporate veil when fraud has been perpetrated in someone dealing with the corporation.”

It proceeds to state that, the doctrine that share holders will be treated as the owners of a corporation’s property, or as the real parties in interest, whenever it is necessary to do so to prevent fraud or to do justice, is the back bone of the alter-ego rule. It therefore means that, where the director can be treated as the directing mind and will of the company, and therefore the alter ego of the company, the corporate veil of the company may be lifted or pierced. In other words, the corporate veil of a company may be lifted or pearced so as to find out the real person behind the fraudulent and improper act perpetuated by the company. This will be done where the canopy of legal entity is being used to defeat justice or justify wrong, or Perpetuate and protect fraud, or cause injustice to the other party to the contract. See CHINWO v. OWHONDA (2008) 3 NWLR (Pt.1074) Pg.341 and VIBELKO (NIG.) LTD v. N.D.I.C. (2006) 12 N.W.L.R. (Pt.994) Pg.280. See also PUBLIC FINANCE SECURITIES LTD. v. JEFIA (1998) 3 NWLR (Pt.543) Pg.602 at 614.In the instant case, the learned trial judge found that, apart from signing Exhibit “A”, the 2nd Appellant wrote and signed Exhibit “J” which is the letter purporting to terminate the contract between the 1st Appellant and the Respondent without recourse to the terms of the agreement. It is vital to note that the said Exhibit “J” was signed by the 2nd Appellant (Nze F. I. Onwadike); in his name and as Chairman and Managing Director of the 1st Appellant. He did not purport to sign Exhibit “J” “for or per pro.” the 1st Appellant. That is a remarkably departure from Exhibit “B” which is the letter Introducing the Respondent to First Bank of Nigeria Plc; wherein he signed “for” the 1st Appellant. I think that is the key that unlocked and exposed the real status or relationship of the 2nd Appellant with the 1st Appellant. I am therefore of the view and do hold that the learned trial judge was right when he held that the 2nd Appellant is the alter ego of the 1st Appellant. In the same vein, the learned trial judge rightly held that the 2nd Appellant was properly joined in the suit or action before him as a co-defendant.

The 2nd issue raised by the Appellant is whether the court below was right when it concluded that the Plaintiff/Respondent need not establish its juristic personality since no issue was joined on the juristic personality of the Plaintiff/Appellant. Therein, learned counsel for the Appellant contended that, the Appellants at the trial court had contended that the Plaintiff did not establish her juristic personality and that of the 1st Defendant. That these claims of the Appellants is founded in Paragraph 1 of the Statement of Defence, whereof they denied Paragraphs 1, 2 and 3 of the Statement of Claim. That the Respondent as Plaintiff at the lower court had the burden to prove the juristic personality which had been challenged, and that the only way they could do that was by production of certificates of incorporation of the Plaintiff/Respondent and the 1st Defendant/Appellant. Just as he did in the lower court, learned counsel relied on the cases of A.C.B. PLC. v. EMOSTRADE LTD (2002) 8 NWLR (Pt 770) Pg. 502; REG. TRUSTEES APOSTOLIC CHURCH v. A.G; MIDWEST (1972) All N.L.R Pg. 395; J.K. RANDLE v. KWARA BREWERIES LTD (1986) 6 S.C Pg. 1 and NDOMA EGBA v. CHUKWUOGOR (2004) 6 NWLR (Pt. 869) Pg. 382 for this contention. That, the response of the Respondent before the lower court was that:

(i) The Defendants joined no issue since they did not lead evidence.

(ii) The Defendant all along acknowledged the Plaintiff as a corporate body.

(iii) By failing to give evidence the corporate status of the Plaintiff was admitted.

It is therefore the contention of the Appellants that issues are not joined by leading evidence but on the pleadings. He relied on EHIMAR v. EMHONYEN (1985) 1 NWLR (Pt. 177). That the denial of the Appellants was categorical and unambiguous, that no certificate of incorporation was produced. That the P.W.1 did not state in his testimony that either the 1st Appellant or the Respondent was an incorporated body, but that the learned trial judge suo motu raised the issue as to whether Paragraph 1 of the Statement of Defence amounted to sufficient denial of the allegations of fact in Paragraphs 1, 2 and 3 of the statement of defence. That the learned trial judge was wrong not to invite the parties to address it on the issue. The cases of KUTI v. BALOGUN (1978) 1 S.C Pg. 53; OLUSANYA v. OLUSANYA (1983) 1 S.C N.L.R Pg. 134 and KUTI v. JIBOWU (1972) 6 S.C. Pg. 147, were cited in support.

Learned Appellants’ counsel also referred to the cases of NDOMA-EGBA v. CHUKWUOGOR (supra) at Pg. 426-427 and J.K. RANDLE v. KWARA BREWERIES LTD (supra), to submit that as no certificate of incorporation was tendered by the Respondent, the learned trial judge was in error to have relied on Exhibits A, B and J. That the non-production of the certificate of incorporation was fatal, yet the trial court merely claimed that no issue was joined thereon, forgetting that the claims of the Respondent before it were declaratory in nature and that the Respondent was bound to prove his case without reliance on any weakness in the defendant’s case. He further relied on the case of MOTUNWASE v. SORUNGBE (1988) 5 NWLR (Pt. 92) Pg. 90, to submit that being a declaratory action, the Plaintiff/Respondent was duty bound to prove her incorporation and that of the 1st Appellant, and the no amount of insufficient denial relieved her of that burden. That no such evidence was led, and therefore, in the absence of proof of Incorporation, the Respondent’s case was bound to fail.

Learned counsel for the Respondent contended that, the finding of the learned trial judge on the issue of the juristic personality of the Plaintiff/Respondent and the 1st Defendant/Appellant had emanated from the case pleaded by the parties. That the learned trial judge approached the issue by considering whether the parties actually joined issue on the juristic personality of the parties. That, the complaint of the Appellants that the court suo motu raised the issue as to whether Paragraphs 1 of the Statement of defence amounted to sufficient denial of the allegations of facts in Paragraphs 1, 2 and 3 of the statement of defence, cannot be sustained, as the issue was raised at pages 95 lines 24-32 and 96 lines 1-4 of the Appellants’ Written Address. That when the learned senior counsel for the Appellants raised the issue whether the parties actually joined issue on the juristic personality of the parties, he was merely extending an invitation to the court to examine the pleadings in order to come to a conclusion on the issue. That the issue was also canvassed by the Respondent before the trial court at page 82 of the record. It was therefore submitted that, on the face of the record, it is wrong and misleading for the Appellants to contend that the learned trial judge raised the issue of whether Paragraph 1 of the statement of defence constitute sufficient denial of the fact of juristic personality of the parties suo motu. He also submitted that, the learned trial judge was in the circumstances entitled to proceed, as he did, to examine the pleadings of the parties so as to determine whether or not there was a denial of the juristic personality of the Respondent and 1st Appellant. That the case of KUTI v. BALOGUN (1978) 1 S.C Pg. 53; OLUSANYA v. OLUSANYA (1983) 1 S.C.N.L.R. Pg.134 and KUTI v. JIBOWU (1972) 6 S.C. Pg. 147 cited by the Appellants are therefore not applicable in the circumstances of this appeal. It was therefore submitted that the learned trial judge extensively reviewed the position of the law, the pleadings as contained in Paragraphs 1, 2, and 3 of the Statement of Claim and Paragraph 1 of the statement of defence, before coming to the conclusion that, no issue as to the corporate status of the plaintiff was joined and that there is no appeal against that finding.

Learned senior counsel for the Respondent also referred to the statement of the Appellants’ learned senior counsel at page 57 lines 6-8 of the record of appeal to submit that, the submission of the Appellants therein that the 1st Appellant is a limited liability company is binding on them, and cannot now be heard to present a volte face to contend that the learned trial judge was wrong to conclude that the 1st Appellant is a limited liability company. That indeed, it was common ground, at the trial court, that the 1st Appellant is a limited liability company and therefore, the learned trial judge cannot be condemned for upholding the same submission proffered by the Appellants. Learned counsel for the Respondents therefore submitted that, the cases of NDOMA-EGBA v. CHUKWUOGOR (supra) and J.K. RANDLE v. KWARA BREWERIES LTD (supra) cited by the Appellants are therefore not applicable in the circumstance of this case. He then proceeded to draw the distinction between the two cases cited and proceeded to relate them to the facts of this case. See pages 19-22 of the Respondent’s Brief of Argument.

It is the submission of learned Respondent’s counsel that two points stand out in NDOMA-EGBA v. CHUKWUOGOR (supra). First, that, it is condemnable for a party to resort to crooked ways in order to find an easy access to avoiding legal liability for his actions. That in the instant case, the 2nd Appellant held out the 1st Appellant as a limited liability company, as a result of which the Respondent, and the Appellants conducted all the transactions to this case on the common ground that both Respondent and 1st Appellant are limited liability companies. The 2nd point is not relevant to this appeal. That in J.K RANDLE v. KWARA BREWERIES LTD (supra) there was a categorical and positive denial of Incorporation of the Respondent under the STATUTORY CORPORATION (Miscellaneous Provisions) Law No. 2 of Kwara State, 1979. In the instant case, there was no effectual denial in the statement of defence, and there was evidence that the Respondent and the 1st Appellants had dealt with each other as limited liability companies, and that all documentary evidence on record show that both the Respondent and 1st Appellant are limited liability companies. That based on the above cited case, the categories of admissible evidence in proof of a juristic personality of a corporate entity cannot be said to be closed, and therefore courts are to be guided by the facts and justice of each particular case in coming to a conclusion as to whether juristic personality has been proved or not. The cases of S.P.D.C v. OKONEDO (2007) All FWLR (Pt. 368) Pg. 1104 at 1134; INT’L CARPETS IND. LTD v. SAVANNAH BANK (2006) All FWLR (Pt.325) Pg. 108 at 140; SOLOLA v. STATE (2005) All FWLR (Pt 269) Pg. 1751 at 1781 and WAKU v. ADAGBA (2006) All FWLR (Pt. 309) Pg. 1518 at 1532 were further cited in support.

I have carefully read the submissions of counsel and the judgment of the court below relating thereto. Upon a careful reading of the judgment of the trial court, it appears to me that, the learned trial judge approached this issue from two angles. Before I consider same, I find it pertinent to consider whether the learned trial judge raised the issue whether the parties actually joined issue on the juristic personality of the 1st Appellant and the 1st Respondent suo motu. While the Appellants contend that the issue was raised suo motu by the learned trial judge, the Respondent contends that the issue was raised by the parties in their Written Addresses before the lower court. The Respondent contends that, the Appellants raised the issue when their learned senior counsel submitted in their Written Address that:

“It is common ground that the 2nd defendant is the chief executive of the 1st Defendant, a Limited Liability Company.”

I also find that the learned senior counsel for the Appellants had submitted in his Written Addresses at pages 60 lines 6-4 that:

“In Paragraph 1 of the Statement of Claim the Plaintiff pleaded that she was a Limited Liability Company and in Paragraph 2 it was pleaded that the 1st defendant was also a Limited Liability Company. In Paragraph I of the statement of defence, Paragraphs 1, 2 and 3 of the statement of claim were denied and the Plaintiff put to strict proof. Issue was therefore joined on the juristic personalities of the Plaintiff and the 1st Defendant.”

With this positive submission of learned counsel for the Defendants/Appellants at the trial court it is not difficult to see that the question whether issues were joined on the juristic personalities of the 1st Appellant and Respondent was not raised suo motu by the trial court. In response learned counsel for the Respondent submitted in his Written Address at page 81 Paragraph 30 of the record of appeal that:

“The point must be made here that the Defendants submission that they joined issues with the Plaintiff on the juristic personality of the Plaintiff and 1st Defendant is misconceived.”

In resolving the issue therefore, the learned trial judge held at page 97 lines 26 – 29 as follows:

“From the submissions of both parties on the issue, the question that was rightly raised by the learned SAN and which needs resolution is whether the parties actually joined issue on the juristic personality of the parties?”

This finding of the learned trial judge cannot in any way be faulted. Indeed, the issue was raised by learned senior counsel for the Appellants. It was not raised by the learned trial judge suo motu. I therefore find that the learned senior counsel for the Appellants was wrong to have pushed the blame for raising the issue on the learned trial judge.

I had stated that the learned trial judge approached the issue of the juristic personalities of the 1st Appellant and Respondent from two points. Firstly, the learned trial judge found that the defendants/appellants failed to lead any evidence to negate the claim but relied on the plaintiffs case, and are therefore deemed to have abandoned their pleading in that respect. Thus, the learned trial judge held at pages 102 – 103 lines 25 -6 as follows:

“In addition, I would say that based on the evidence before this court, all be it from the plaintiff alone since the defendants did not proffer any evidence at all, it is clearly shown in Exhibit “A” that the contract the subject matter of this suit, was entered into between two limited liability companies. Though P.W.1 in the course of his testimony on oath did not expressly state that plaintiff is a limited liability company, however, the totality of his evidence touched on the fact that both plaintiff and 1st defendant are limited liability companies. Evidence does not consist only of oral testimony, documents are part of evidence too. The evidence available show that both parties dealt with each other as limited liability companies.”

From the above statement, the learned trial judge went on to hold that, the P.W.1 who testified and made available documentary evidence from which the juristic personalities of the 1st Appellant and Respondent could be inferred was never cross-examined, given the Appellants’ denial at Paragraph 1 of their statement of defence.

The learned trial judge also held that, the fact that the defendant failed to lead evidence to negate that claim but instead relied completely on the Plaintiffs case is that, the defendants are deemed to have abandoned their pleading in that respect. He therefore found that no issue was joined at all as to the legal entity or personalities of either the 1st Appellant or the Respondent.

It is settled law that parties are bound by their pleadings. In that respect, a plaintiff is not allowed to set up a case different from that pleaded by him. In the same vein, a defendant is not permitted to set up a defence different from that pleaded by him in the statement of defence. Similarly, the judgment of the court must be limited to or confined to the issues raised by the parties in their pleadings. The court must therefore not suo motu make a case for either of the parties, different from that placed before it in the pleadings. This is so because, the principal purpose of pleading is to set out clearly the facts a pafty intends to rely on at the trial in support of the claim or defence, as the case may be, so that the opposite party may not be taken by surprise. In other words, the aim or essence of pleadings is to compel the parties to define accurately and precisely the issues upon which the case is to be considered so as to avoid springing surprises by either party. Consequently, facts are not evidence and therefore, a party is bound to lead evidence either oral or documentary to establish the facts pleaded. Any fact pleaded for which no evidence is led is deemed abandoned. See F.C.D.A v. NAIBI (1990) 3 NWLR (Pt. 138) Pg.270; UGBODUME & ORS v. ABIEGBE & ORS (1991) 8 NWLR (Pt. 209) Pg.261; AMADIUME v. IBOK (supra) at Pg.82 Paras F-G and KOTUN v. OLASEWERE (2010) 1 NWLR (Pt. 1175) Pg. 411. In the instant case, the Appellant lead no evidence at all at the trial, but elected to rely on the Respondent case as presented at the trail court. Having not led any evidence in support of their averment in Paragraph I of the statement of defence wherein they denied Paragraphs 1, 2 and 3 of the Statement of claim, they are deemed to have abandoned their pleading in that regard. It would not be farfetched as the learned trial judge held, to conclude that they are deemed to have admitted the Respondent’s averments in Paragraphs 1, 2 and 3 of the Statement of claim. Equally, I am of the view and do hold that the learned trial judge was right in holding that the Appellants did not join issue with the Respondent on the juristic status of the Respondent and the 1st Appellant.

The other angle from which the learned trial judge approached the issue is that, the denial by the Appellants in Paragraph 1 of their statement of Defence is an insufficient denial of the contents of Paragraphs 1, 2 and 3 of the Statement of Claim in that, the denial is ambiguous and evasive. That the averments contained in Paragraphs 1, 2 and 3 of the statement of claim contained diverse circumstances, such as the issue of corporate personality of Plaintiff/Respondent and the 1st Appellant and the nature of the business carried out by Respondent, which were not taken into consideration in the Appellant’s denial by Paragraph 1 of the statement of defence. The learned trial judge then considered the provisions of Order 25 rule 4 of the Abia State High Court (Civil Procedure) Rules, 2001 to hold that the Appellants’ denial failed to meet frontally and categorically the averments contained in Paragraphs 1, 2 and 3 of the Statement of Claim. That the case of A.C.B PLC & ANOR v. EMOSTRADE LTD (2002) 8 NWLR (Pt.770) Pg.501 relied on by the Appellants does not support their case in that, in that case, the defendants expressly denied the Plaintiffs allegation of being a limited liability company in their statement of defence, unlike in the instant case, where the Appellants’ denial in Paragraph 1 of the statement of defence was a mere general denial. The learned trial judge then held that:

“Given the foregoing, it is my considered view that the denial as contained in Paragraph 1 of the Statement of defence is ambiguous and evasive and as such, no issue as to the corporate status of the plaintiff was joined thereby. In the circumstance, the traverse which I find and hold to be evasive will be and is hereby taken as not controverting the averment in Paragraph 1 of the statement of claim. See the cases of OSHODI v. EYIFUNMI (2000) 80 LRCN, 2893; AKINTOLA v. SOLANO (1986) 2 NWLR (Pt.24) Pg. 598.”

See page 102 at lines 4-13 of the record of appeal.

“1. The Plaintiff is a Limited Liability Company registered in Nigeria with its head office at Plot 127, Trans-Amadi Lay-Out Port-Harcourt and carries out business as Banking and Finance Consulting

2. The 1st Defendant is a limited liability company, registered in Nigeria and having its Group head office at No. 103 Clifford Road, Aba, Abia State.

The Appellants then pleaded at Paragraph 1 of the statement of defence as follows:

“Paragraphs 1, 2 and 3 of the Statement of Claim are denied und the defendants require strict proof of the averments therein.”

The authorities cited above are clear on the issue, which is that a denial in a statement of defence couched in such manner cannot be said to be specific denial. It is general in terms. If the Appellants intended to deny that the 1st Appellant and the Respondent are not juristic persons they should have stated so in clear and unambiguous terms. I agree with the learned trial judge that the denial is vague as it did not specify which part of the averments in the Respondent’s pleading they are denying. Is it that the Respondent and 1st Appellant are limited liability companies or the nature of the business carried on by them? Or is it their addresses of business that the Appellants deny? I accordingly agree with the learned trail judge that the denial, in the manner it was pleaded in Paragraph 1 of the abandoned statement of defence, did not answer to the specific allegations stated in Paragraphs 1 and 2 of the Statement of Claim. It is general in con and not specific. In the same vein, I agree with the learned trial judge that the Appellants did not therefore join issues with the Respondent on the juristic personalities of the 1st Appellant and the Respondent.

I wish to also observe that, in the abundance of documentary evidence on record, I am of the view that the Appellants introduced the issue of juristic personality of the 1st Appellant and the Respondent as a ploy avoid liability. That is an unconscientiously way of doing business. In their zeal to avoid liability, the Appellants were ready to deny their own corporate status. Well, as it is, they were not adept at it. The end result is that the learned trial judge saw through their ploy and I agree totally with him. I therefore resolve issue No. 2 against the Appellants.

I had stated at the beginning of this judgment that I shall consider issues 3 and 4 together. In arguing issue No. 3, learned counsel for the Appellant contested the grant of the Respondent’s claim, despite what he contended are fundamental conflicts in the claim. He embarked on an arithmetic of the Respondent’s claim and came to the conclusion that the Respondent’s claim ought to be six million, fifty-three thousand, five hundred and twenty-five naira, twenty-four kobo (N6,053,525.24), which is not the Respondent’s claim which is for N7,591,271.11. He therefore submitted that there is a variance between the amount claimed and the figures derivable by simple computation using the parameters set out in the pleadings.

It is also the contention of learned counsel for the Appellant that, by Exhibit K which is a demand letter from the Respondent and dated 20/7/2001, the claim was for N6,955,378.05 consisting of N6,719,409.67 being 25% of N26,877.630.05 plus N335,970.38 being the value added tax less N100,000.00 deposit paid. He then queried the exact amount claimed by the Respondent in his pleading. That if the Respondent’s claim via Exhibit K was that it identified excess charges amounting to N26,877,630.05 as at 20/7/2001, he wondered how the claim of N19,245.24 was arrived at. That the confusion in the Respondents claim was compounded when the P.W.1 testified that, 2% flat interest rate continued from the time Exhibit K was submitted. It was therefore submitted that the claim before the court was confused and at variance with the pleadings and bereft of vital information on:

(i) The amount charged as interest.

(ii) The actual amount identified; that is whether it is N19,850,245.24 or N26,877,630.05.

(iii) Commencement of interest i.e whether 28/6/2001 or 25/7/2001 (which is five days after receipt of Exhibit K).

That the testimony of the P.W.1 did nothing to clear those conflicts upon which the defense rested its case yet the trial court held that the Respondent’s claim was proved. That it was not the duty of the Appellants as defendants to cross-examine the P.W.1, with a view to unravel the mystique or dispel the confusion, but rather, were entitled to take advantage of the fact that ex facie, the case was confused and conflicting. He relied on the case of SOMMER v. F.H.A (1992) 1 NWLR (Pt. 219) Pg. 548 and OWENA BANK v. A.S.C.C (1993) 4 NWLR (Pt. 290) Pg. 698 to further submit on this point that, it is not the duty of the defense to strengthen the case of the plaintiff by ridding it of its inherent conflicts.

On the basis of the law as pronounced by the Supreme Court on the above cited cases, learned counsel contended that, the case of the Respondent was simply confused and lacked credibility and therefore for the Appellants to have cross-examined with a view to “unravel the mystique or dispel the confusion” would have amounted to gross indiscretion. He therefore submitted that the learned trail judge missed the point and shirked its responsibility by transferring the blame on Appellant’s counsel. That it is obvious that where evidence adduced is at variance with the pleading, the claim must be dismissed. The case of ONYEDIRAN v. AMOO (1970) All N.L.R Pg.373 and OKOYA v. SANTILLI (1994) 4 NWLR (Pt.338) Pg.256 were relied on in urging us to hold that the Respondent’s claim was bad and that the learned trial judge ought not to have entered judgment based on it without the conflict first being resolved.

On issue No. 4, learned senior counsel for the Appellant sought to show that, upon a proper appraisal and assessment of the evidence proffered by the Respondent in proof of her claim, the lower court erred grievously in entering judgment for the Respondent. That, the fact that the Appellants did not testify did not relieve the Respondent of the burden of proving her claim by credible evidence. The cases of ATILADE v. ATILADE (1968) All N.L.R. Pg. 27; ERIVO v. OBI (1993) 9 NWLR (Pt. 315) Pg. 60 and JALINGO v. NYAME (1992) 3 NWLR (Pt 231) Pg.535 were cited in support.

It is thus the submission of the learned counsel for the Appellants that, reliefs (i), (ii) and (iii) sought by the Plaintiff/Respondent were declaratory reliefs, the grant of which are based on the discretion of the court, the success of the claim therefore depended entirely on the strength of the Plaintiff/Respondent’s claim, and not on the weakness of the defence. Relying on the cases of BELLO v. EWEKA (1981) 1 S.C

Pg. 101 and OKESUJI v. LAWAL (1990) 1 NWLR (Pt 170) Pg. 661 for the above statement of the law, learned senior counsel contended that the trial court misdirected itself on this fundamental issue as can be seen from page 121 lines 27 – 32 of the record of appeal. That though the Appellants did not call any witness, the Respondent was not relieved of the burden of proving her case, as the Appellants could not be bound by a case that was inherently defective, conflicting and starved of relevant evidence.

Learned senior counsel for the Appellants also contended that, it was incumbent on the Respondent to prove his claim that he was entitled to a percentage of the total sum he identified as excess charges in the bank account of the 1st Appellant with First Bank of Nigeria Plc, Aba (Main) Branch, by credible evidence. That the holding of the learned trial judge at page 212 line 14-213 line 11 on the issue, show clearly that the trial court was mistaken when it relied on an alleged admission in the Defendants/Appellants’ pleadings. He submitted therefore that, the Plaintiff/Respondent did not prove her case and the trial court was wrong in entering judgment in her favour. That it is clear from Exhibit D that, the finding of the Respondent which he forwarded to the First Bank of Nigeria Plc was not conclusive but seemed speculative. That when the Respondent wrote several months later to the First Bank Nig. Plc requesting the Bank for the meeting to reconcile the excess charges, it was tacit admission by the Respondent that there could be no proper identification of any excess charges without the input and concurrence of the Bank. That the record shows that no meeting took place and therefore, no actual reconciliation took place. He further referred to Exhibit K and the testimony of the P.W.1 under cross-examination at page 53 lines 5-10, and also Exhibit B which was written to enable the Respondent have access to the 1st Appellants’ Account and dated 25/10/2000. That exh. “C” which is the report was however dated 17/8/2000 which is a date earlier than that in Exh. B. Learned senior counsel therefore contended that, no reasonable court can place reliance on Exh. “C” upon which the claim was based since it was produced before the witness had access to the bank records. It was further submitted that the finding of the trial court at page 123 lines 10-25, in respect of the explanation of the P.W.1 on why Exh. “C” pre-dated Exh. B, cannot be supported, as such facts were never pleaded and therefore went to no issue.

It is the further contention of the Appellants that, by Exh. “K” dated the 26/6/2001, the Respondent acknowledged that the bank raised issues and volunteered to offer explanations at a meeting which never held. That the evidence before the court was that, no amount was recovered, no amount was credited, no reversal of any excess charges took place and that no benefit accrued to the 1st Appellant, contrary to the main objective of the contract. That the Respondent did not explain how the N19,850,245.24 or N26,877,630.69 was arrived at and no bank statement tendered showing the alleged excess charges. It was therefore contended by reliance on the cases of AJAO v. AKANO (2005) ALL FWLR (Pt 264) Pg.799 at 812-813; ONIBUDO v. AKINBU (1982) 7 S.C Pg. 60 at 62; OKOYA v. SANTILI (supra) at 303; QUEEN v. WILCOX (1961) All N.L.R and DURIMINIYA v. C.O.P. (1961) All N.L.R Pg. 70, that the Respondent did not explain any part of Exhibit “C” but simply dumped same on the court. In that respect, learned senior counsel submitted that, it was for the Respondent to demonstrate same in open court, and not for the court to conjuncture, speculate or investigate it in the recess of its hallowed chambers,

Learned senior counsel for the Appellants went on to submit that, the judgment of the court below does not show a resolution of the fundamental issues of law raised by the Appellants, but proceeded from the erroneous premise that since the Appellants did not testify, they were bound by whatever the Respondent said, and there by truncated the Appellants’ fundamental right to a fair hearing. The case of OKONJI v. NJOKANMA (1991) 7 NWLR (Pt.202) Pg. 131 at Pg. 150 and 155 were cited in support. That the finding of the trial court that the Respondent was entitled to succeed despite the fact that First Bank Plc admitted nothing and credited the 1st Appellant with nothing is perverse. That the P.W.1 admitted that the main objective of the contract was the recovery of excess bank charges in t}re 1st Appellant’s Bank account with First Bank Nig. Plc, Aba, yet the court interpreted Exh. “A” in such a way as to entitle the Respondent to any figure he mentioned, though no benefit accrued to the 1st Appellant. That Exh. “A” must be read as a whole and therefore, cause “O” cannot be given an isolated construction, and that if that is done, the only reasonable construction to be placed on the clause is that, in the event of a unilateral termination by the 1st Appellant, the Respondent would be entitled to 25% of the amount identified and presented to the Bank for refund and actually refunded by the bank.

Learned Appellants’ counsel also referred to clause “H” of Exh. A which prescribes that 25% of the total amount recovered from the bank shall be payable to the Respondent within 5 days of receipt of the Respondent’s demand notice provided that unpaid balance due to the Respondent attract 2% interest at the rate of 2% per month until fully paid, to submit that, it is clear that the 2% interest is only payable in respect of actual recoveries made from the bank and not on speculatory figures. That to construe clause “O” otherwise is to render clause “A”, “H”, 3C and 3D nugatory, as such would mean the 1st Appellant would be liable to pay 255 of any figure claimed by the Respondent, which remains unverified by the bank. That this is not the intention of the parties as expressed in clause 3C and 3D especially when P.W.1 admitted under cross-examination that the bank determines a genuine claim by examining the consultant’s report with their own records. That this was not done in this case. It was then submitted that the judgment being replete with fundamental errors is perverse. We were therefore urged to set it aside.

Learned senior counsel for the Respondent contended that, despite effort of the Appellants to castigate the judgment of the trial court, they were unable to draw attention to any part of the evidence relied upon by the learned trial judge which was at variance with the pleadings. That the Plaintiff/Respondent’s case as pleaded in Paragraph 13 of the Statement of Claim is that the excess charges wrongly charged to the 1st Appellant’s Account by First Bank (Nig) Plc as at 31/12/99 was N19,850,245.24.Thatthe Respondent pleaded several letters which it exchanged with First Bank Nig. Plc on the subject, which were tendered and admitted in evidence as Exhibits “E”, F, F1, G, G1, K1, K2, K3 and K4 among others, and which documents were further demonstrated in court. He drew our attention to the testimony of P.W.1 at page 46 of the record, which he contended the P.W.1 was never cross-examined upon, and therefore that piece of evidence remained unchallenged nor contradicted as rightly found by the learned trial judge at page 126 lines 12-26 of the Records.

Learned senior counsel for the Respondent also contended that, P.W.1 made reference to Exhibits F, F1, and F4 where he explained the difference between the original excess charge identified and subsequent increase in the figures which he attributed to “revised interest”. See page 46 lines 16-19 of the Record. That it was clear from the explanation that, the excess charge remained trapped as overdraft (O/D) balances which continued to attract interest at the Bank rate of 24% per annum and that the learned trial judge had no difficulty in understanding the situation as can be seen at pages 124-126 of the record of appeal, and particularly page 125 lines 13-126 lines 8.

Learned counsel for the Respondent also contended that, contrary to the impression created by the Appellants, the learned trial judge never came to the conclusion that the Respondent’s claim was confused. That the mystique or confusion which the learned trial judge expected the Appellants to unravel for themselves, is the confusion which the Appellants appeared to have found themselves in ,by either cross-examining on the point or calling evidence to contradict same. He then submitted that the learned trial judge was satisfied with the evidence of the P.W.1 and found no confusion in the Respondent’s claim, and therefore the case of SOMMER v. F.H.A (supra) and cited by learned Appellant’s counsel are of no avail to the Appellants. That the Appellants had a duty to challenge the evidence through cross-examination or contradict same by calling evidence but they failed to do so and that this was not a case where “prudence and wise advocacy” would counsel in favour of leaving the evidence on record without cross-examination. We were then urged to hold that the decision in OKOYA v. SANTILI (supra) is not applicable to the facts of this case for the benefit of the Appellants, because, in the present case, there exists clear evidence on record which the Appellants had the opportunity to challenge or contradict but they failed to do so, and which evidence the trial court painstakingly evaluated and was satisfied that the evidence provided sufficient proof for the Respondent’s case.

Learned counsel for the Respondent contended further that, the arithmetical analysis embarked upon by the Appellants at Paragraphs 4.17-21 of their brief of argument is wrong. That the testimony of the P.W.1 apart from being unchallenged and uncontradicted, is the evidence of an expert in banking as can be seen at page 35 lines 6-14 of the record of appeal. That being an expert, the P.W.1 provided both the First Bank Plc and the court with the basis for his calculation of both the principal and the interest. That such explanation can also be seen in Exh. K1 where he described the principles of “revised interest” and that the First Bank Nig. Plc was satisfied with the explanation made with regard to the basis of calculation, which involved the application of the principle of revised interest. That this piece of evidence was not contradicted and the learned trial judge was satisfied with the explanation as well as can be seen at pages 46 lines 9-16 and 124-128 of the record. It was then submitted that the calculation the Appellants now rely on was not part of their pleading and no evidence was led in support thereof. That an effective challenge of such accepted evidence cannot lie in the bare words of legal submission. We were then urged to hold that the calculation embarked upon by the Appellants is non sequitur, futile and of no benefit,and to discountenance same. The cases of KUFORIJI v. Y.B. LTD (1981) 6-7 S.C Pg. 40 at 84-85; AKINLOYE v. ENYIOLA (1968) NWLR Pg.92 at 95 and EBBA v. OGODO (1984) 4 S.C. Pg. 90-91 and 102 – 104 were cited in support.

On issue No. 4, it is the contention of learned counsel for the Respondent that, there is nothing under the law which prevents a plaintiff from taking advantage of admissions made by a Defendant in proof of the Plaintiffs case in a declaratory action. That the case of BELLO v. EWEKA (supra) cited by the Appellants support that position. That the learned trial judge meticulously evaluated the evidence on record before coming to the conclusion that the Plaintiff/Respondent’s case was proved and that the judgment of the trial court was not merely founded on the fact that the Appellants failed to proffer evidence in support of their pleadings. That the Respondent pleaded in Paragraph 13 of the Statement of Claim that, in execution of the contract it identified excess charges imposed on the 1st Appellant’s Account by First Bank Nig. Plc and compiled same into a 92 paged Brochure which was submitted to the bank, and that the Brochure was received in evidence as Exhibit “C” while the letter forwarding same to the bank is in evidence as Exh. D. The letter acknowledging receipt of same is also in evidence as Exh. E, while other correspondences between the bank and the Respondent were admitted in evidence as Exhs. F, F1, G, G1, K1, K2, K3 and K4 respectively. That it was against this background that the learned trial judge came to the conclusion that it was too late for the Appellants to argue that the Respondent did not identify any sum and that that finding is supported also by the pleadings. That it is futile for the Appellants to argue that the Respondent’s Exh. C, used the term “appear to reveal excessive bank charges” and that Exh. G urged the bank to arrange a meeting “to actually reconcile the excess charges”, in view of the Appellant’s pleading in Paragraph 7 where they admitted that the Respondent presented “what it claimed were excess charges on the 1st defendant’s account.” That the bank admitted in Exh. E, F and F1 that they were investigating the identified excess charges. It was therefore submitted that, the Respondent had identified and submitted the excess charges to the bank and that the issue of reconciliation introduced by the Appellants did not in any way obliterate or blur the act of identification.

On the report, it is the contention of learned senior counsel for the Respondent that, the learned trial judge dealt with the issue exhaustively at page 123 lines 6-23 of the record. That the learned trial judge relied on other evidence, such as Exh. B, before coming to the conclusion that it was proper to rely on Exhibit “C” as can be seen at pages 123 lines 30-33 and 124 lines 1-15 of the record. He therefore submitted that the funding of the learned trial judge is supported by evidence on record, such as the testimony of P.W.1 at page 53 lines 16-31 and Exh B. That it is obvious from Exh. C. that the report was submitted to the Appellants before same was presented to the Bank, and the Appellants cannot therefore claim ignorance of the findings of the Respondent. The Appellants neither contradicted the P.W.1 by tendering material evidence to that effect, nor did they deny the fact that the banking records relied upon in compiling Exh. C were genuine and that they were indeed received from the Appellants. He accordingly submitted that, in the face of the evidence before the court, the Appellants cannot seriously challenge Exh. C or blame the learned trial judge for relying on same, as the learned trial judge acted within the scope of duties of a trial judge when he evaluated such evidence. The cases of EBBA v. OGODO (1984) 4 S.C Pg. 90-91 and 102 -104 and AKINLOYE v. EYIYOLA (1968) NWLR Pg.92 at 95 were also cited in support.

The Respondent contended that the learned trial judge did not embark on the doing of cloistered justice. That it is clear from pages 35-47 of the record that oral evidence was led on all the documentary evidence tendered, and indeed the Appellants even objected to the leading of oral evidence in respect of documents already received in evidence, by arguing that it contravenes the Evidence Act. That in any case, the court was entitled to examine and evaluate any document tendered in evidence in the way any other piece of evidence will be evaluated. The cases of BAYO v. NJIDDA (2004) FWLR (Pt. 192) Pg. 10 at 71; AIKI v. IDOWII (2006) All FWLR (Pt. 293) Pg. 361 at 374 and EZEMO v. NEW NIGERIA BANK PLC (2007) All FWLR (Pt. 368) at 1065 were cited in support.

It is the further submission of learned Respondent’s counsel that, it is clear from Paragraph 3(0) of Exhibit A that it is the applicable provision where the contract in Exhibit A is prematurely terminated by the Appellants. That it would be absurd to interpret that provision in such a way as to impose a duty to recover the identified sum before the provision of Paragraph 3(0) can come into effect, as argued by the Appellants. We were then urged to discountenance the Appellants’ submission in that regard, as the provisions of Paragraphs 3(C), (D) and (H) of Exhibit “A” do not in any way distract from the provision of Paragraph 3(0) which is the applicable provision where the contract is prematurely terminated as in this case.

On the issue of fair hearing, it is the submission of the Respondent that, the Appellants had a fair hearing to the fullest and made their choices, which they are bound to live with. We were then urge to dismiss the appeal and to uphold the judgment of the court below

Now the general claim of the Plaintiff/Respondent as can be seen in Paragraphs 23(i), (ii) and (iii) of the Statement of Claim are for declaratory reliefs. Claim 2 in Paragraph 23 is a consequential relief. The Respondent having sought for declaratory reliefs had the burden to lead credible evidence to show that he is entitled to the declaration sought. To be able to do that, he has to succeed on the strength of his own case, and not on the weakness of the defence, even where there is admission by the defendant. This is because declaratory judgments are not awarded on admission by the other party, but on the strength of the evidence of the claimant. In other words, courts do not grant declaratory reliefs either in default of defence or admissions, without hearing evidence and being satisfied by such evidence. This position is an exception to the rule that facts admitted need no proof. See BELLO v. EWEKA (1981) 1 S.C Pg.107; MOTUNWASE v. SORUNGBE (1988) 4 NWLR (PL 92) Pg. 90; A.G; FEDERATION v. AJAYI (2000) 12 NWLR (PT. 682) PG. 509; SALAU & ORS v. PARAKOYI (2001) 1 NWLR (Pt. 695) Pg,446 at 456 per Galadima; JCA (as he then was); NKWOCHA v. OFURUM (2002) 5 NWLR (Pt.761) Pg. 506 at Pg. 524-525 and MAJA v. SAMOURIS (2002) 7 NWLR (Pt 765) Pg. 78 at 101.

However, there may be circumstances where the Plaintiff may take advantage of such weakness that supports his claim. In that case, he can take advantage of any weakness in the defendant’s case that supports his claim, to prove his case. See NWOKAFOR v. NWANKWO UDEGBE & ORS (1963) All N.L.R Pg. 104; EDOSOMWAN v. OGBEYEFUN (1996) 4 NWLR (Pt. 442) PG. 266; ALHAJI RAJI & ORS. v. GBADEBO COKER & ORS (1981) 5 S.C. Pg. 197 and ONYERO v. NWADIKE (1996) 9 NWLR (Pt. 231) Pg.240 – 241.

In the instant case, the Respondent as Plaintiff at the lower court led evidence in proof of her case through the P.W.1. The Appellants as defendants did not call any evidence in defence. They had filed a statement of defence wherein they denied the Respondent’s claim. The law is that, pleadings is not evidence and therefore pleadings must be supported by evidence. In other words, facts averred to in pleadings must be substantiated by evidence and in the absence of such evidence, the averments are deemed abandoned. See U.B.N PLC v. ASTRA BUILDERS (W.A. LTD) (2010) 5 NWLR (Pt. 1186) Pg. 1; SKYE BANK PLC v. AKINPELU (2010) 9 NWLR (Pt.1198) Pg. 179 and AREGBESOLA v. OYINLOLA (2011) 9 NWLR (Pt 1253) Pg.458. See also ADMIN/EXEC; ESTATE, ABACHA v. EKE-SPIFF (2009) 7 NWLR (Pt 1139) Pg.97.

I had stated earlier that, the Appellants led no evidence but elected to rest their case on that of the Respondent. It is the law that where a defendant does not adduce evidence, as in the instant case, the evidence before the court goes one way leaving the court with no other evidence or set of facts with which to do the measuring of the scale. This is because in a situation where a defendant leads no evidence in proof of the facts pleaded by him, such pleading is deemed abandoned and the defendant would be left with nothing with which to present against the plaintiff. Thus, in a situation where a defendant abandons his pleading and rests his case on the Plaintiff’s evidence, he is deemed in law to have completely accepted both the pleadings and evidence or the case presented by the plaintiff. In such a situation, it may mean that:

(a) The defendant is stating that the plaintiff has not made out any case for the defendant to controvert or respond to; or

(b) He admits the facts of the case as presented by the plaintiff; or

It seems therefore that a defendant may adopt the option of resting his case on that of the plaintiff as a legal strategy. If that strategy succeeds, then his case is enhanced, and he may therefore succeed on that ground, but if he fails, that strategy would have been decimated. See KOTUN v. OLASEWERE (supra) at Pg. 430; ADMIN./EXEC; ESTATE OF ABACHA (supra) at Pg. 421 Paras. H-E; OSADIM v.TAWO (2010) 6 NWLR (Pt.1189) Pg.155 and ODUWOLE v. WEST (2010) 10 NWLR (Pt. 1203) Pg.598 at 621. The standard of proof expected of the plaintiff in such a situation is a minimal one, as in such a situation, there is nothing to put on the other side of the imaginary scale against the evidence proffered by the plaintiff.In the instant case, the Plaintiff/Respondent led evidence in proof of their case through the P.W.1. The learned trial judge believed that evidence and accordingly entered judgment for the Respondent. By not leading evidence at the trial, but choosing to rest their case on that of the Appellant, I believe, as demonstrated by learned senior counsel, that the Appellant adopted the first strategy as stated in the case of ADMIN/EXC; ABACHA v. EKE-SPIFF (supra). It was therefore the contention of the Appellants that the Respondent did not make out any case for them to controvert or answer.

In arguing their position, the Appellants had contended that, the Respondent s case was confused and at variance with the amount claimed and the figures derived by simple computation using the parameters set out in the pleadings. The learned trial judge resolved this issue at pages 124-125 lines 26-6 as follow:

“And from the evidence before the court, the figure of the principal sum as at that 18/9/01 stood at N26,877,630.05. In Paragraph 23(1)(i) of the Statement of Claim, the plaintiff is asking for a declaration that based on Exhibit “A” the plaintiff identified the total sum of N19,850,245.24 representing excess charges imposed on the 1st defendant’s account as at 31/12/99. There is no doubt that these two different figures informed the submission of the defendants that there is variance between the amount claimed in Paragraph 23(2) of the Statement of Claim and the correct figure derivable by simple arithmetic computation,”

He then proceeded to hold at pages 125- 126 lines 15-15 as follows:

“I do not think there is any confusion generated by the two different figures. The evidence before the court is that the principal sum identified in Exhibit “C” as at 31/12/99… had by 31/05/2001 appreciated to N26,877,630.05 as a result of what P.W,1 termed “revised interest” Exhibit “K3”, “F” & “F1” show that the First Bank of Nigeria Plc, when the letter from Plaintiff intimated them of the increase of the principal sum to N26,877,630.03 raised questions on the rise^ of the identified sum from its 31/12/99 status without the benefit of the difference being covered by s schedule, plaintiff in Exhibit “H”, “K4” among others but especially Exhibit “K4” explained the situation wherein he told the bank that if it is not addressed, it would continue to increase the charge. In his oral testimony in court, P.W.1 told court that the bank did not refute the discoveries they made with regard to the excess charges rather the bank raised an observation on accumulated interest of N5.6 Million through Exhibit “K3” and which observation he, P.W.1 explained to the bank as “revised interest” in Exhibit “K4″.

From the foregoing, the confusion defendants must have had over the plaintiff’s claims with regards to the sum identified and presented to the bank and the subsequent increase of the identified sum as a result of the revised charges, was adequately explained by the plaintiff through Exhibit F, F1 and K4.”

The statement of the learned trial judge the Appellants complained of, which followed immediately after the above cited decision of the trial court was adequately explained by the learned trial judge who held that:

“In effect, the defendants did not challenge plaintiff’s evidence on this issue. Having not challenged the evidence of the plaintiff in that regard, defendants cannot be heard to complain about the principal sum as well as the amount due to the plaintiff claimed as not being genuinely identified.”

What the learned trial judge said in essence is that the P.W.1 having explained what appears to be the difference in the figures, if the Appellants disagreed with the explanation; they had a duty to cross-examine on it. The learned trial judge found that the Appellants did not cross-examine on the explanation proffered by the P.W.1 and were accordingly deemed to have accepted that explanation. The Appellants have not said and have not shown from the record that they did cross-examine. This is more so, as they did not give evidence to explain their own side of the story and to contradict the P.W.1. In that respect, I completely agree with the learned trial judge that there was no challenge to the sum identified and the amount due to the Respondent as claimed.

The Appellants had also contended that the date on the Report on Reconciliation Exercise (Exhibit “C”) predates the letter which introduced the Respondent to the Bank which is in evidence as Exhibit “D”. In considering the issue the learned trial judge examined the testimony of the P.W.1 and held that:

“The uncontroverted evidence before the court with regards to this particular submission as given by P.W.1. is that the moment plaintiff was commissioned to undertake the consultancy service in September, 1999, they entered into the bank’s record statement secretly through the 2nd defendant from whom they received all the documents that needed in order to avoid the bank becoming aware of the exercise at that early stage. It is the evidence of P.W.1 that the information gathered at the stage might take them to investigate the matter without the banker’s knowledge of the exercise was sort of research work on any item suspected to have been in excess of the charges. They then analyze these findings and produce a report. After compiling the report, they now ask their client to introduce them formally to the bank. According to P.W.1, that was the reason for the report having an earlier date than the letter of introduction.”

The learned trial judge therefore considered this explanation of the P.W.1 as to why the Report as prepared before the introduction to the bank as quite plausible. Indeed, the P.W.1 stated under cross-examination by learned counsel for the Appellants at page 52 of the record that, it is true that the letter of Introduction was dated much later than the Report. He stated that, it was so because, immediately they were commissioned to carry out the consultancy service, in September, 1999, they received all the documents they needed secretly from the 2nd Appellant so as to avoid the bank becoming aware at that stage. That it was information they gathered from those documents at that stage that they analysed and prepared the report, before they formally requested the Appellants to introduce them to the bank. That after the introduction, they then submitted same to the Bank and the reconciliation work began. He gave that explanation as the reason for the Report having an earlier date than the letter of Introduction. There was no evidence from the Appellants contrary to that explanation by the P.W.1 as the Appellants did not call any evidence. The conclusion of the learned trial judge was therefore based on the available evidence before him. There is nothing from the Appellants to discredit the findings of the learned trial judge. It should be noted that that explanation came under cross-examination from the Appellants. Having elicited that explanation, they cannot resile from it by contending that those facts were not pleaded.

The contention of the Appellants that the learned trial judge embarked on doing of cloistered justice by examining documents in the recess of his hallowed chambers has no substance. Indeed the P.W.1 was led in evidence by learned counsel for the Respondent whereby those documents were duly tendered and admitted in evidence. It is not the case of the Appellants that those documents were not admissible. In fact there is no appeal against the admissibility of those documents. The P.W.1 gave the reason why he was tendering those documents in his oral testimony in court. It is worthy of note that the Appellants objected to the Testimony of the P.W.1 on the ground that, he was not permitted by law to lead oral evidence to prove, vary, alter or add to any term of a contract. See page 36 lines 27-33 of the record of appeal. Indeed, throughout the testimony of the witness, he demonstrated and explained the purpose of those documents. Apart from the bare assertion of learned counsel in his address at pages 28-29 of the Appellants. Brief of argument, learned counsel did not point to any part of the judgment where the trial court engaged in the doing of cloistered justice. In that respect, I agree with learned senior counsel for the Respondent that, the learned trial judge was within the law and had the liberty to assess and evaluate the documents admitted in evidence, just as he would other evidence presented before him. The assessment and evaluation of the documents could only be impugned if it was found to have lead to a perverse decision. That was not shown to be so in this case. The argument of the Appellants on this issue is therefore built on quick sand.

It should be noted that the evaluation of evidence adduced at the trial is primarily the function of a trial court. In other words, it is the duty of the trial court who had the advantage of seeing and hearing the witnesses, to evaluate and ascribe probative value to the evidence adduced at the trial. An appellate court has no such advantage of seeing and hearing the witnesses, and therefore is always slow to interfere with the findings of fact made by the trial judge.

The appellate court will only interfere where it finds from the record that the trial court failed to properly evaluate the evidence presented before it and which finding led to a perverse decision or miscarriage of justice. Such perverse finding occurs where the trial court took into account matters which it ought not to have taken into account or where it strut its eyes to cogent facts before it. See ALI v. SALIHU (2011) 1 NWLR (Pt 1228) Pg.227; NIKAGBATSE v. OPUYE (2010) 14 NWLR (Pt 1213) Pg. 50; OGHIRI v. N.A.O.C LTD (2010) 14 NWLR (Pt. 1214) Pg. 208 and OKONKWO v. OKONKWO (2010) 14 NWLR (Pt. 1213) Pg.228.

The burden is on the party who complains about the findings of facts and evaluation of evidence to show that from the printed evidence on record how those findings were wrong. In other words, he has to demonstrate that if the learned trial judge had not found as he did, the result would have been different.In the instant case, the foundation of the Plaintiff/Respondent’s claim is the Contract Deed, admitted in evidence as Exhibit “A”. Therein, the Appellants contracted the Respondent to carry out consultancy services for the 1st Appellant, with the primary aim of identifying and recovering excess bank charges in respect of the 1st Appellant’s Bank Account at the Aba (Main) Branch of the First Bank of Nigeria Plc. By the term of the agreement, the consultancy service was to last for a period of five (5) years or as may be extended by the company. It also stipulated at clause H as follows:

“It is further hereby further agreed that the company shall pay the consultants twenty five percent (25%) of the total amount recovered from the Banks, within five days on receipt of the consultant’s demand notice, provided that unpaid balance due the consultants shall attract an interest of 2% flat per month until fully paid.”

It is obvious therefore that, by the above stated clause of the Agreement, what is contemplated here is a situation where the consultant has identified, presented and recovered the excess bank charges due to the 1st Appellant. The situation giving rise to the instant action on appeal arose due to the pre-mature termination of the agreement by the Appellants unilaterally without the prior consent of the Respondent. Upon a proper appraisal of Exhibit “A” (contract document), it is beyond doubt that the situation is covered by Clause 3(0). It is stipulated in clause 3(0) that:

“fn the case of the termination of this contract by the company without a written counsel of the consultants, the company shall pay the consultants 25% of the total amount identified and presented to the bank for refund and any refund already made by the same bank before or at the time of termination”

However, the Appellants have argued strenuously that the contract envisaged that the 25% payable shall only be made where there has not only been an identification and presentation to the bank, but actual recovery of the excess charges identified and recovered. In the resolution of the issue, the learned trial judge disagreed and held that:

“In the present circumstance, I had earlier observed that upon a proper construction of the provisions of Exhibit “A”, especially the specific provision in clause 3(0) thereof, which deals with the subject matter of this suit i.e. the premature termination of the contract without the written consent of the plaintiff, plaintiff is entitled to claim consultancy charges or fee of 25% of all excess and/or wrongful charges identified and presented to the bank by the plaintiff, before the defendants unilaterally terminated the contract.”

I have no doubt that the learned trial judge was right. Clause 3(0) of Exhibit “A” is very clear and unambiguous. It is a specific provision and its construction cannot be limited or otherwise inhibited by any other provision in Exhibit “A”. It was intended by the parties to apply upon the premature and unilateral termination of the contract by the 1st Appellant, so long as the Respondent had identified and presented some excess charges on the 1st Appellants Account to the First Bank of Nig. Plc. It was not intended that recovery should have been made before it will come to play. Where actual recovery had been made, it is clause 3(H) that should be considered. The learned trial charge was therefore right when he construed clause 3(0) as a specific or special provision and applicable to the facts of this case. Clause 3(C) and 3(D) are not relevant to the construction of clause 3(0) as they only spell out some of the functions to be performed by the Respondent.

The learned trial judge also evaluated the evidence of the P.W.1 and came to the conclusion that the Respondent indeed identified and presented the excess charges in the 1st Appellant’s Account with the First Bank of Plc, Aba (Main) Branch as presented in Exhibit “C”. He alluded to Paragraph 7 of the Appellants’ pleading and held that the Appellants did acknowledge that the Respondent actually identified and presented excess bank charges. That given that averment of the Appellants, they cannot turn around to deny that the Respondent identified and presented any claim and especially when the Respondents in introducing the Respondent to the bank acknowledged that the Respondent had identified some excess bank charges when it asked the bank to reconcile the plaintiff’s findings. The evidence on record also show that the Appellants where given a copy of the Report as in Exhibit “C” which clearly show that they were aware that the Respondent had identified and presented excess bank charges wrongly imposed on the 1st Appellant’s account by the Bank. The learned trial judge then found at page 124 lines 1 – 15 that:

“It is interesting to note that in that letter of introduction Exhibit “B”, the 2nd defendant who wrote it impliedly confirmed the explanation given by the P.W.1 as to why the report bore an earlier date before the introduction when in that letter, 2nd defendant asked the bank to “reconcile” the “findings” with the plaintiff. What were the “findings” to be reconciled other than the excess charges identified and presented to the bank in Exhibit “C” which fixed the principal sum identified and submitted at N19,850,245.24 as at 31/12/99? I therefore find and hold that the plaintiff actually identified and presented to the First Bank of Nig. Plc, the sum of N19,850,245,24 as excess or wrongful charges on the 1st defendant’s account with the First Bank of Nig. Plc as at 31/12/99″

The above finding of the trial court is supported by the evidence of the P.W 1 and the documentary evidence admitted at the trial. In all these, the Appellants found it convenient and built their strategy not to call evidence to rebut same. Similarly the Respondent was entitled to take advantage of this weakness in the Appellants’ case as they called no evidence despite the uncontradicted evidence on the record. Indeed only a minimal proof was required of the Respondent as the Appellants chose not call any evidence, and so there was nothing which the trial court could place on the other side of the imaginary scale against the evidence led by the Respondent. The learned trial judge was therefore right when he held that:

“In the final analysis, I find that plaintiff has discharged the burden of proving his claim, largely because the defendant decided not to cull evidence in support of the their pleading, but chose to rely on the case of the plaintiff. Having made that choice, the defendants are bound by whatever is the case of the plaintiff.”

Though the Appellants disagree with this finding of the learned trial judge, the truth of the matter is that, they were unable to contradict the Respondent’s evidence as proffered by the P.W.1. They adopted the stand that the Respondent has not made out a case for them to respond to or controvert. But the evidence on record has demolished their stand. They have to bear the consequence or result of the strategy they adopted which has turned out to be a bad and disastrous one.

On the whole therefore, I am of the view and do hold that this appeal is devoid of any merit. It fails and is accordingly dismissed. Accordingly, I affirm the judgment of the court below delivered on the 15th day of March, 2006 in suit No. A/434/2001.

I award fifty thousand naira (N50,000.00) as cost against the Appellants in favour of the Respondents.

UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, H. S. Tsammani, JCA, just delivered.

I am entirely in agreement with the reasons therein and the inevitable conclusion that the appeal is devoid of any merit and I have nothing more to add, but to adopt same as mine.

The appeal fails and it is accordingly dismissed. The judgment of the Lower Court delivered on the 15th day of March, 2006 is hereby affirmed.

I abide by the consequential order as to costs.

MOJEED A. OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Haruna S. Tsammani, JCA. I agree with the reasoning and conclusion. I also dismiss the appeal and abide by the consequential orders.

Appearances

Chidozie Ogunji; Esq.For Appellant

AND

M. S. Agwu; Esq.For Respondent