ECOBANK NIGERIA LIMITED v. ALHAJI ASSAN O. AROGUNDADE & ANOR
(2019)LCN/12759(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/L/750/2015
RATIO
APPEAL: ROLE OF THE APPELLANT IN AN APPEAL
“The traditional role of an Appellant is to challenge the findings and decision of the trial Court or Tribunal which are not in its favour while it is the role of the Respondent to defend the Judgment appealed against; the Respondent who is aggrieved by the Judgment or portions thereof may also file a Respondent’s Notice or a Cross-Appeal, as may be applicable and as done by the 1st Respondent in the instant case. See: OKPA Vs. IREK & ANOR (2011) LPELR-4249 (CA) Pg. 18-10, Paras. G – A; ORELUSI Vs. LANLEHIN & ORS (2011) LPELR-4746 (CA) Pg. 35, Paras. E – F and IGBA Vs. STATE (2013) LPELR-21183 (CA) Pg. 12, Paras. A – A where this Court held that: Ideally, when an appeal is against the decision of a trial Court the appellant is presumed to be opposing the decision appealed against, while the respondent is supportive of the decision of the lower Court unless there is a cross-appeal.” PER TIJJANI ABUBAKAR, J.C.A
CONTRACT: EMPLOYER/EMPLOYEE RELATIONSHIP
“In IYERE Vs. BENDEL FEEDS AND FLOUR MILL LTD [2008] 18 NWLR (1119) 300; (2008) LPELR-1578 (SC) Pg. 31, Paras. A – G, the Supreme Court per MUHAMMAD, JSC held as follows and I quote: ‘The general disposition of the law is that an employer is liable for the wrongful acts of his employee authorised by him or for wrongful modes of doing authorised acts if the act is one which, if lawful, would have fallen within the scope of the employee’s employment, as being reasonably necessary for the discharge of his duties or the preservation of the employer’s interests or property, or otherwise incidental to the purposes of his employment, the employer must accept responsibility in as much as he has authorised the employee to do that particular class of act and is therefore precluded from denying the employee’s authority to do the act complained of. If on the other hand, the act is one which, even if lawful, would not have fallen within the scope of the employee’s employment: the employer is not bound unless the act is capable of being ratified and is infact ratified by him…’ (Underlined for emphasis)” PER TIJJANI ABUBAKAR, J.C.A
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
ECOBANK NIGERIA LIMITED Appellant(s)
AND
1. ALHAJI ASSAN O. AROGUNDADE
2. ECONOMIC AND FINANCIAL CRIMES COMMISSION Respondent(s)
TIJJANI ABUBAKAR, J.C.A (Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Lagos State, Commercial Division, sitting in Lagos delivered by OGALA J. on the 28th day of May, 2015 in Suit No: LD/1484/2012 as contained at pages 605 – 629 of the Records of Appeal wherein the learned trial Judge held that the Claimant’s claim failed, and ordered that the 1st Respondent’s title document of the property situate at House G11, Road 2, Victoria Garden City, Lekki, Lagos be released; and that the 1st Respondent?s Counter-claim failed in its entirety.
The suit was instituted by the Appellant against the Respondents herein and two other defendants, O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna (the 1st and 2nd Defendants) by Writ of Summons and Statement of Claim and other accompanying processes contained at pages 1 – 203 of the Records of Appeal. The 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) failed or refused to enter appearance or file any process in opposition to the Appellant’s claim while the 1st and 2nd Respondent’s herein (the 3rd and 4th Defendants at the lower Court) entered appearance and filed their respective Statements of Defence; the 1st Respondent (3rd Defendant) in addition to his Statement of Defence filed a Counter-claim against the Appellant (Claimant) and the 1st and 2nd Defendants at the lower Court as contained at pages 272 – 297 of the Records of Appeal; the 2nd Respondent’s (4th Defendant’s) Statement of Defence is contained at pages 309 – 351 of the Records of Appeal. At the trial, parties called their respective witnesses and exchanged pleadings; and, at the conclusion of the trial, the lower Court delivered its judgment which is now the subject of this appeal.
?Dissatisfied with the judgment of the lower Court, the Appellant filed its Notice of Appeal on the 10th day of June, 2015 as contained at pages 630 – 636 of the Records of Appeal. The Appellant’s Brief of Argument was filed by learned Counsel F. B. Odesanya Esq. on the 21st day of November, 2018. The 1st Respondent’s Brief was on the other hand filed by Yakubu Dauda Esq. on the 3rd day of December, 2018.
The Appellant’s counsel filed a Reply Brief on the 30th day of November, 2018. No representation or Brief was filed on behalf of the 2nd Respondent in this appeal.
The learned Counsel for the Appellant crafted two issues for determination, the issues are reproduced as follows:
1. Whether the recital, charging clause and continuing clause in the Deed of Tripartite Legal Mortgage (Exhibit CW 1(19) require reversal by the mortgagee to the mortgagor for further loans facilities granted to the borrower.
2. Whether the Judgment of the lower Court is perverse and amount to miscarriage of Justice in view of the finding of facts by the lower Court that there is valid Deed of Tripartite Legal Mortgage between the Appellant, O. C. SUNNIK ENTERPRISES LTD and the 1st Respondent.
The learned Counsel for the 1st Respondent on the other hand nominated two issues for determination also reproduced as follows:
1. Whether the lower Court was right to have held that the Deed of Tripartite Legal Mortgage was executed only in respect of the facility of Forty Million Naira (N40,000,000.00) granted on the 9th July, 2010 and that the subsequent Twenty Million Naira (N20,000,000.00) and Forty-Nine Million Five Hundred Thousand Naira(N49, 500,000.00) only are not covered thereby.
2. Whether the Appellant did not fail to show any perversity and thus failed to demonstrate any miscarriage of justice in the Judgment of the lower Court.
On the other hand, the 1st Respondent filed a Notice of Cross-Appeal on the 30th of November, 2018 against the decision of the lower Court with respect to the Counter-claim of N30,000,000.00 (Thirty Million Naira). The 1st Respondent/Cross-Appellant’s Brief in respect of the cross-appeal was filed on the 3rd day of December, 2018 by Yakubu Dauda Esq. The Appellant/1st Cross-Respondent’s Brief was also filed by F. B. Odesanya Esq. on the 30th day of November, 2018. The 1st Respondent/Cross-Appellant filed a Reply Brief to the Appellant/1st Cross-Respondent’s Brief on the 3rd of December, 2018. Again, no representation or Brief was filed on behalf of the 2nd Respondent/2nd Cross-Respondent with respect to the cross-appeal. I will first consider the substantive appeal.
SUBMISSIONS OF COUNSEL FOR THE APPELLANT
ISSUE ONE
Learned counsel for the Appellant relied on BABATUNDE Vs. B.O.N LTD [2011] 18 NWLR (Pt. 1279) Pg. 761, Paras. B – H; Pg. 762, Paras. A – B; Pg. 797 – 780, Paras. H – B & Pg. 789, Paras. C – F; KAYDEE VENTURES LTD Vs. MW F.C.T [2010] 7 NWLR (Pt. 1192) Pg. 203-204, Paras. F – A& Pg. 217-218, Paras. G – A; U.B.N PLC Vs. AJABULE [2011] 18 NWLR (Pt. 1278) Pg. 185-186; OWONIBOYS TECHNICAL SERVICES LTD Vs. U.B.N LTD [2003] 15 NWLR (Pt. 844) Pg. 545; OKONKWO Vs. C.C.B. (NIG) PLC [1997] 6 NWLR (Pt. 507) Pg. 48 and S.E. CO LTD Vs. N.B.C.I [2006] 7 NWLR (Pt. 978) Pg. 198 to submit that the Court and indeed parties are bound by the terms of contract agreement duly entered and executed by the parties; and that in the interpretation of contractual transaction, the Court will always hold parties bound by the terms of their agreement as they stand in the agreement.
Learned counsel referred to Exhibit CW 1(19) and DW3 (F) (1-19) ? the Deed of Tripartite Legal Mortgage to argue that 1st Respondent authenticated his signature and admitted his knowledge of the contents of the said Deed of Tripartite Legal Mortgage. Counsel referred to the findings of the lower Court at page 623 of the Records of Appeal to submit that the lower Court rightly found that the Deed of Tripartite Legal Mortgage was validly created. Counsel referred to the recital, clause 3.01 and 10 of the said Deed of Tripartite Legal Mortgage and argued that the wordings of the entire Deed are clear, lucid and unambiguous; counsel cited OBIKOYA Vs. WEMA BANK LTD [1991] 7 NWLR (Pt. 201) Pg. 119 and F.B.N PLC Vs. SONGONUGA [2007] 3 NWLR (Pt. 1021) Pg. 273-274, Paras. G – A to submit that the duty of the lower Court was to interpret and give meaning to the terms of the agreement between the parties. Learned counsel further contended that it is not always the business of the Court to make a contract for the parties before it or to re-write the one already made by them and that the Court will not allow any terms which were not agreed to by the parties to be read into the agreement.
Learned counsel further referred to LARMIE Vs. D.P.M.S LTD [2005] 18 NWLR (Pt. 958) Pg. 459, Paras. E, Pg. 467, Paras. E, Pg. 476-477, Paras. H – C; KOIKI Vs. MAGNUSSON [1999] 8 NWLR (Pt. 615) Pg. 492; UNION BANK (NIG) LTD Vs. UMEH & SONS LTD [1996] 1 NWLR (Pt. 426) Pg. 565 and S.C.O.A (NIG) LTD Vs BOURDEX LTD [1990] 3 NWLR (Pt. 138) Pg. 38 to submit that the Court must treat as sacrosanct the terms of the lawful agreement freely entered into by the parties. Counsel relied on BFI GROUP Vs. B.P.E [2012] 18 NWLR (Pt. 1332) Pg. 238-239, Paras. H – B, Pg. 246, Paras. E – F;S.E. CO LTD Vs. N.B.C.I [2006] 7 NWLR (Pt. 978) Pg. 198 and OMEGA BANK (NIG) LTD Vs. O.B.C LTD [2005] 8 NWLR (Pt. 928) Pg. 547 to further submit that the Court cannot re-write a contract for the parties but can only construe the surrounding circumstances including written or oral statements so as to discover the intention of the parties.
Learned counsel submitted that the surrounding circumstances in the instant appeal which the lower Court has a duty to construe and also to discover is the clear intention of the parties in the agreement for the payment of the sum of N2.5 Million per month by O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) to the 1st Respondent for the release of the title documents of the 1st Respondent?s property. Counsel further argued that the lower Court ought to construe that the Deed of Tripartite Legal Mortgage was executed on the 20th of July, 2010 after the 1st Respondent?s letter of application for the facility of N40,000,000.00 (Forty Million Naira) on the 17th of July, 2010; and that the said Deed of Tripartite Legal Mortgage mentioned in several clauses the fact that the banking and credit facilities are to be granted to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and that the mortgaged property is the continuing security for the payment of all monies and the discharge of all obligations and liabilities by the borrower. Learned counsel submitted that there was therefore no legal duty on the Appellant to refer to the 1st Respondent in granting further facilities to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) since the Deed of Tripartite Legal Mortgage was duly executed by the parties particularly the 1st Respondent; and that the 1st Respondent?s argument that the Appellant failed to revert to him in granting further loans/facilities was an afterthought. Counsel urged this Court to resolve this issue in favour of the Appellant.
ISSUE TWO
Submitting on issue number two learned counsel for the Appellant relied on OGBORU Vs. UDUAGHAN [2012] 11 NWLR (Pt. 1311) Paras. D – F; N.D.I.C Vs. F.M.B.N [1997] 2 NWLR (Pt. 490) Pg. 735 and SARAKI Vs. KOTOYE [1992] 9 NWLR (Pt. 264) Pg. 156 to submit that a good judgment which is the binding, authentic and official determination by the Court of the action or suit before the Court must contain how evidence was evaluated and appraised; it must visibly and explicitly show the findings of fact and the conclusion reached thereon; and it must not be vague in order to avoid any room for speculation. Counsel referred to the findings of the lower Court at page 626 of the Records of Appeal to submit that the reasoning of the lower Court in the judgment herein appealed amounts to conjecture leaving room for speculation; counsel argued that the lower Court failed to appreciate the fact that the sum of N15,000,000.00 (Fifteen Million Naira) stated in the recital of the Deed of Tripartite Legal Mortgage was the amount to be paid as impressed stamp on the Deed of Tripartite Legal Mortgage on ad-volarem basis in accordance with the Stamp Duties Act.
Learned counsel referred to OYEYEMI Vs. IREWOLE LOCAL GOVT. [1993] 1 NWLR (Pt. 270) Pg. 462 and OGBORU Vs. UDUAGHAN (Supra) to submit that every decision of a Court must flow logically from the conclusion of fact and law made by the Court; and it must be plainly seen to be logical result of such an exercise. Counsel referred to the Judgment of the lower Court at pages 623 and 626 of the Records of Appeal to submit that the reasoning and conclusion in the Judgment did not flow logically; and that the lower Court wrongly evaluated the terms of the Deed of Tripartite Legal Mortgage and concluded that the consideration covenanted and secured by the said Deed of Tripartite Legal Mortgage is the sum of N15,000,000.00 (Fifteen Million Naira). Learned counsel submitted that while it is the trial Court’s duty to evaluate evidence and ascribe probative value to them having seen and heard the witnesses; this Honourable Court, being an appellate Court is entitled to re-evaluate the evidence on record where the trial Court fails to properly evaluate the evidence adduced at the trial. Counsel submitted that the lower Court in the instant case failed to properly evaluate the Deed of Tripartite Legal Mortgage and that while the Court held that the covenant secured by the said Deed of Tripartite Legal Mortgage is the sum of N15,000,000.00 (Fifteen Million Naira); the lower Court in the same judgment held that the Deed of Tripartite Legal Mortgage was executed in respect of the initial N40, 000,000.00 (Forty Million Naira).
Learned counsel cited IWUOHA Vs. NIPOST LTD [2003] 8 NWLR (Pt. 822) Pg. 344, Paras. C – D; ADEYE Vs. ADESANYA [2001] 6 NWLR (Pt. 705) Pg. 1;OLATUNDE Vs. ABIDOGUN [2001] 18 NWLR (Pt. 746) Pg. 712; ADELEKE Vs. IYANDA [2001] 13 NWLR (Pt. 729) Pg. 1;UDO Vs. CRSNC [2009] 14 NWLR (Pt. 723) Pg. 116; BFI GROUP CORP Vs. B.P.E [2012] 18 NWLR (Pt. 1332) Pg. 236, Paras. B – C; LAGGA Vs. SARHUNA [2008] 16 NWLR (Pt. 114) Pg. 482-483, Paras. H ? A; ATOLAGBE Vs. SHORUN [1985] 1 NWLR (Pt. 2) Pg. 360; MAKANJUOLA Vs. BALOGUN [1989] 3 NWLR (Pt. 105) Pg. 192 and DURU Vs. NWOSU [1989] 4 NWLR (Pt. 113) Pg. 24. Counsel further submitted that the trial Court failed to properly evaluate and consider Exhibit CW1 (20) the statement of account of O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and Exhibit DW3 (D); that the trial Court’s finding that as regards the inflow of N140, 000,000.00 (One Hundred and Forty Million Naira) into the said account is wrong and perverse in law. Learned counsel relied on the decisions in ADIMORA Vs. AJUFO [1988] 3 NWLR (Pt. 80) Pg. 1; ATOLAGBE Vs. SHORUN [1985] 1 NWLR (Pt. 2) Pg. 1; EGBA Vs. APPAH [2005] 9 NWLR (Pt. 934) Pg. 480-481, Paras. H – A;UDENGWU Vs. UZUEGBU [2003] 13 NWLR (Pt. 836) Pg. 152, Paras. B – H;OVERSEAS CONSTRUCTION CO (NIG) LTD Vs. CREEK ENTERPRISES (NIG) LTD [1985] 3 NWLR (Pt. 13) Pg. 407; LAGGA Vs. SARHUNA (Supra); YARO Vs. AREWA CONSTRUCTION LTD & ORS [2007] 17 NWLR (Pt. 1063) Pg. 373, Paras. C – D; LARMIE Vs. D.P.M.S LTD (Supra); JOHN SHOY INT?L LTD Vs. A.E.P.B [2013] 8 NWLR (Pt. 1357) Pg. 639, Paras. C – G, Pg. 640, Paras. G ? H and NNAJIOFOR Vs. UKONU [1986] 4 NWLR (Pt. 36) Pg. 505.
Learned counsel submitted that the findings of the lower Court that the consideration covenanted and secured by the Deed of Tripartite Legal Mortgage is the sum of N15,000,000.00 (Fifteen Million Naira) is not based on any evidence before the lower Court and therefore speculative and amounts to a miscarriage of justice. Counsel submitted that in dismissing the 1st Respondent’s Counter-claim, the lower Court found that the 1st Respondent failed to satisfy the lower Court that he is entitled to the Counter-claim for the release of the title documents on the property mortgaged under the Deed of Tripartite Legal Mortgage; but the lower Court in another twist ordered that the same title documents be released forthwith, thereby amounting to a miscarriage of justice. Learned counsel urged this Court to resolve this issue in favour of the Appellant; allow the appeal and set aside the order of the lower Court on the Appellant to release the document of the mortgaged property; and to enter judgment for the Appellant as claimed before the lower Court.
SUBMISSION OF COUNSEL FOR THE 1ST RESPONDENT
ISSUE ONE
Learned counsel for the 1st Respondent referred to the decision of the lower Court at page 627 of the Records of Appeal; counsel further referred to the letter dated 17th July, 2010 at page 81 of the Records of Appeal to submit that the 1st Respondent therein stated unequivocally that he has given his consent to the use of his property as security for the N40,000,000.00 (Forty Million Naira) loan facility which O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) applied for from the Appellant. Counsel referred to OJUKWU Vs. YAR’ADUA [2008] 4 NWLR (Pt. 1078) Pg. 435 at 461 and OGBUNYIYA Vs. OKUDO [1979] ANLR Pg. 105 at 107 to submit that by the principle of expression unius et exclusion alterius, the 1st Respondent must be held to have intended the exclusion of any other sum or facility other than that which was mentioned in its letter of consent dated 17th July, 2010 at page 81 of the Records of Appeal. Learned counsel argued that the said 1st Respondent?s letter of consent is the basis of the preparation and execution of the Deed of Tripartite Legal Mortgage and that the 1st Respondent cannot be held liable for any other facility which he is/was not privy to.
Learned counsel referred to C.A.P PLC Vs. VITAL INVESTMENT LTD [2006] 6 NWLR (Pt. 976) Pg. 220 at 251-252 & 264-265 and A.G., FEDERATION Vs. A.I.C LTD [2000] 10 NWLR (Pt. 675) Pg. 293 at 306, 311 & 314 to submit that the 1st Respondent is not privy to those facilities of N20,000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty-Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the Deed of Tripartite Legal Mortgage. Counsel contended that as at the 21st of July, 2010 when the Deed of Tripartite Legal Mortgage was executed, the only loan/facility which had been applied for was the one for N40,000,000.00 (Forty Million Naira) and that the trial Court was right in refusing to construe the terms of the Deed of Tripartite Legal Mortgage as including the subsequent facilities granted on the 2nd of September and 21st of October, 2010. Learned counsel further submitted that there was no such intention between the parties for the continual and limitless grant of facilities by the Appellant to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) using the 1st Respondent’s property as security and that as the Appellant requested for the 1st Respondent?s consent in respect of the N40,000,000.00 (Forty Million Naira) facility, it ought to have requested for and obtained the 1st Respondent?s consent in respect of the subsequent facilities.
Learned counsel further referred to the Application for Governor’s consent at page 82 of the Records of Appeal to contend that the wordings of the Application clearly showed that the 1st Respondent intended to secure only one facility; and that since there was only one facility in existence as at that time, the 1st Respondent could not have intended to secure numerous facilities. Counsel relied on EKRETSU Vs. OYOBEBERE [1992] 9 NWLR (Pt. 266) Pg. 438 at 456-457 & 463, Paras. A – C to submit that the decision of the lower Court on this issue is impeccable and well founded both in fact and in law and needs not be disturbed by this Court. Learned counsel further referred to the findings of the lower Court at pages 626 – 628 of the records of appeal in respect of the charging clause of the Deed of Tripartite Legal Mortgage at page 161 of the Records of Appeal to submit that the lower Court rightly found that there was no how the clause could be interpreted to include the loan facilities applied for and granted after the execution of the Deed of Tripartite Legal Mortgage and that from the totality of the evidence before the lower Court, it is clear beyond all peradventure that the 1st Respondent was not aware of the subsequent facilities of N20,000,000.00 (Twenty Million Naira) and N49,500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the Deed of Tripartite Legal Mortgage.
Learned counsel for the 1st Respondent further submitted that contrary to the Appellant’s contention, there is nothing in clause 10 of the Deed of Tripartite Legal Mortgage which either expressly or by necessary implication can be construed as making the Mortgage a continuing security for non-existent loan facilities to be granted at a later date. Counsel submitted that the lower Court was right in finding that though the clause created a continuing security, the continuing security created by the Deed of Tripartite Legal Mortgage is only for the loan facility already granted at the time of the execution of the said Deed of Tripartite Legal Mortgage; and that the cases of OBIKOYA Vs. WEMA BANK LTD (Supra) and F.B.N PLC Vs. SONGONUGA (Supra) relied upon by the Appellants are irrelevant and not helpful to the case of the Appellant.
Learned counsel argued that the 1st Respondent was induced into releasing his title documents on the promise that the documents were only needed for formality and would not be registered and that he could have his title documents back whenever he desired; that the 1st Respondent did not give up his property by the letter of 17th July, 2010. Counsel argued that the letter for the Application for Governor’s consent also dated 17th July, 2010 at page 82 of the Records of Appeal was fake because same is verbatim with the 1st Respondent’s letter of consent written to the Appellant; and that the 1st Respondent couldn’t have applied for Governor’s consent on the 17th of July, 2010 when in the testimony of the 1st Respondent, the said Deed of Tripartite Legal Mortgage was only presented to him for execution on the 21st of July, 2010.
Learned counsel urged this Court to hold that the lower Court did not re-write the terms of the Deed of Tripartite Legal Mortgage as argued by the Appellant; and that the cases cited by the learned Counsel for the Appellant on this issue are absolutely unhelpful to the Appellant’s case. Counsel further submitted that the argument in respect of the payment of N2.5 Million Naira monthly to the 1st Respondent as consideration for his consent to the use of his title document as collateral in respect of the subsequent facilities to be granted to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) is highly misleading and calculated to deceive this Court; that none of the documents or processes filed by the Appellant or any of the parties before the lower Court raised any such contention or issue. Learned counsel relied on MASKALA Vs. SILLI [2002] 13 NWLR(Pt. 734) Pg. 216 at 266 and HORIZON FIBRES (NIG) PLC Vs. M.V. BACO LINER 1 [2002] 8 NWLR (Pt. 769) Pg. 466 at 494, Paras. D – F to submit that it is wrong for the Appellant to attempt to smuggle into the case an issue which was not before the lower Court without following the laid down procedure for raising fresh issues on appeal.
Learned counsel further submitted that the agreement to pay the 1st Respondent the sum of N2.5 Million monthly as consideration for the use of his title document as collateral came about when the 1st Respondent wrote the letter of 19th July, 2010 to the Appellant withdrawing his consent to the use of his title document as collateral to secure the loan facility granted to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court). Counsel argued that it is in evidence before the lower Court that the Appellant’s Agent and Relationship Manager, Abdulkadir Lawal persuaded and assured the 1st Respondent that the loan transaction is authentic and also gave the 1st Respondent a letter of guarantee to return the title document as soon as it is demanded. Learned counsel referred to Exhibits DW3 (D), DW3 (A), DW3 (B), and DW3 (C) at pages 571-572 of the Records of Appeal and submitted that the agreement to pay the 1st Respondent N2, 500,000.00 (Two Million Five Hundred Thousand Naira) monthly was executed on the 21st August, 2010 and that it was clearly stated therein that it was in respect of the facility of N40,000,000.00 (Forty Million Naira).
Learned counsel further relied on ARAKA Vs. EGBUE [2003] 17 NWLR (Pt. 848) Pg. 1 at 21-22, Paras. D – B & Pg. 25-26, Paras. F – B to submit that wordings of the terms and clauses of the Deed of Tripartite Legal Mortgage are clear, plain and unambiguous and should be interpreted as such. Counsel cited SODIPO Vs. OGIDAN [2008] 4 NWLR (Pt. 1077) Pg. 342 at 368, Paras. A – D and also referred to the testimony of the Appellant’s witness under cross-examination at pages 566-567 of the Records of Appeal to submit that the 1st Respondent’s consent expired with the repayment of the sum of N40, 000,000.00 (Forty Million Naira) which he expressly consented to secure. Counsel further referred to pages 567 and 174-197 of the Records of Appeal to argue that the facility of N40, 000,000.00 (Forty Million Naira) has been repaid as shown by the deposit of N100, 912, 782.00 into the account of O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) with the Appellant as shown by the Statement of Account at page 188 of the Records of Appeal. Learned counsel cited CROWN FLOUR MILLS LTD Vs. OLOKUN [2008] 4 NWLR (Pt. 1077) Pg. 254 at 298, Paras. F – H to submit that as at 14th October, 2010 the 1st Respondent had become fully entitled to the return of the title documents since the loan sum secured had been fully repaid. Counsel urged this Court to resolve this issue in favour of the 1st Respondent.
ISSUE TWO
Learned counsel for the 1st Respondent submitted that the trial Court truly but mistakenly took the N15, 000,000.00 (Fifteen Million Naira) contained in the recital to the Deed of Tripartite Legal Mortgage as the principal sum; counsel submitted that despite the slip, the trial Court properly evaluated the case of the parties and made the correct findings on the case of the parties as presented before it. Learned counsel argued that the issue in contention between the parties at the lower Court was not in respect of the principal sum of N40, 000,000.00 (Forty Million Naira), but that the issue right from the beginning is whether the Deed of Tripartite Legal Mortgage extended to the facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the said Deed of Tripartite Legal Mortgage. Counsel referred to MERE Vs. OBI [2008] All FWLR (Pt. 426) Pg. 1956 at 1967, Para. B & Pg. 1968, Paras. E – F to submit that even if the Court misunderstood the principal sum to be N15, 000,000.00 (Fifteen Million Naira) instead of the N40, 000,000.00 (Forty Million Naira) which is not disputed by the parties, the statement of the lower Court referring to the principal sum as N15, 000,000.00 (Fifteen Million Naira) is at best an obiter dictum which cannot be a competent ground of appeal.
Learned counsel for the 1st Respondent argued that looking through the entire judgment, there was no other place where the lower Court repeated the mistake of referring to the principal sum as N15, 000,000.00 (Fifteen Million Naira). Counsel also submitted that the Appellant failed to show how the slip negatively affected the Judgment of the lower Court and that the Appellant is harping on technicalities over a mere slip in the Judgment. Counsel further relied on R.M.A.F.C Vs. ONWUEKWEIKPE [2010] All FWLR (Pt. 528) Pg. 947 at 960-961 and AKOMOLAFE Vs. GUARDIAN PRESS LTD (PRINTERS) [2010] All FWLR (Pt. 517) Pg. 773 at 781 to submit that it is not every slip in a judgment that results into a miscarriage of justice. Counsel submitted further that parties did not join issues over what the initial principal sum was as they were ad idem that it is N40, 000,000.00 (Forty Million Naira). Counsel referred to page 627 of the Records of Appeal to submit that while the slip occurred on the previous page, the lower Court subsequently stated the correct sum. Relying on UBWA Vs. BASHI [2008] 4 NWLR (Pt. 1077) Pg. 303 at 320-321, Paras. H – C and OKI Vs. OKI [2002] 13 NWLR (Pt. 783) Pg. 89 at 103-104, counsel urged this Court not to interfere with the findings of the lower Court.
Learned counsel further argued that contrary to the Appellant’s position, there is nothing illogical about the findings of the lower Court at pages 623 and 626 of the Records of Appeal; that while the lower Court in the former found that there was a valid Deed of Tripartite Legal Mortgage the Appellant, the 1st Respondent and O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court), the Court in the latter page only found the Deed of Tripartite Legal Mortgage as not including the facilities subsequently granted by the Appellant to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court). Counsel submitted that the facts are clear and were correctly appreciated and evaluated by the lower Court and that the decision on every issue before the lower Court was correctly arrived at. It was further contended by the learned Counsel for the 1st Respondent that the cases relied on by the Appellant including that of LAGGA Vs. SARHUNA (Supra) are irrelevant and should be discountenanced.
With respect to the counter-claim, it was contended that the 1st Respondent was right to have counter-claimed N30, 000,000.00 (Thirty Million Naira) because the agreement to pay the 1st Respondent N2, 500,000.00 (Two Million Five Hundred Thousand Naira) monthly in consideration of his consent to use his title document to secure the facility of N40, 000,000.00 (Forty Million Naira) was still subsisting until the document is returned as agreed; and that the said document had been kept for too long a time contrary to the agreement and promise by the Appellant’s Agent. Mr. Abdulkadir Lawal through whom the Appellant paid the 1st Respondent the initial sum of N2.8 Million Naira in piece meal for about three months. Counsel argued that the contention by the Appellant that since the 1st Respondent?s counter-claim for the sum of N30, 000,000.00 (Thirty Million Naira) less N2, 800,000.00 (Two Million Eight Hundred Thousand Naira) was from September, 2010 and for a period of one year, the trial Court ought to infer and impute the knowledge of the fact that his title document was held for subsequent transactions is only a deliberate attempt by the Appellant to confuse the real issue. Learned counsel submitted that there is no way the 1st Respondent’s counter-claim can be interpreted to mean that he consented to or had knowledge of the subsequent transactions for the facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty-Nine Million, Five Hundred Thousand Naira).
Learned counsel further submitted that the acts of the Appellant and the role played by the Appellant’s Relationship Manager. Mr. Abdulkadir Lawal in the whole transaction is shady and dishonest; counsel relied on TERIBA Vs. ADEYEMO [2010] 11 NWLR (Pt. 1211) Pg. 242 at 263-264, Paras. F – A to further submit that a party will not be allowed to profit from his wrong doing and fraudulent act. Learned counsel further argued that the cases of ADIMORA Vs. AJUFO (Supra); ATOLAGBE Vs. SHORUN (Supra); EGBA Vs. APPAH (Supra) and UDENGWU Vs. UZUEGBU (Supra) cited by the Appellant are irrelevant and inapplicable to the instant case because the Appellant failed to show how the judgment herein appealed against amounted to a miscarriage of justice; counsel also relied on ONYEMAIZU Vs. OJIAKOR [2010] All FWLR (Pt. 523) Pg. 1870 at 1880 to submit that the Appellant failed to show how the single slip by the trial Court affected the outcome of the judgment. Counsel urged this Court to discountenance the submissions and cases cited by the Appellant on this issue and to hold that there is no unreasonableness whatsoever in the judgment but that the singular reference of the principal sum as N15,000,000.00 (Fifteen Million Naira) was a mere slip which had no consequence on the judgment.
Learned counsel submitted that any party who alleges miscarriage of justice has a duty to prove same with credible and cogent evidence; and must point out clearly and distinctly the areas of intransigence and miscarriage of justice alleged. Counsel referred to GBADAMOSI Vs. DAIRO [2007] 3 NWLR (Pt. 1021) Pg. 282 at 306, Paras. E ? F to submit that if the alleged fact of miscarriage of justice would not have made any difference in the conclusion and decision of the Court, then it cannot be regarded as a miscarriage of justice. Learned counsel referred to OKONKWO Vs. UDOH [1997] 9 NWLR (Pt. 519) Pg. 16 at 20-21 to submit that the Appellant herein has woefully failed to show or demonstrate what injustice he suffered. Counsel further relied on the decision in DAVID OSUAGWU Vs. A.G., ANAMBRA [1993] 4 NWLR (Pt. 285) Pg. 13 at 41 and OLORA Vs. ADEGBITE [2013] 1 NWLR (Pt. 1334) Pg. 40 at 64; counsel in conclusion urged this Court to hold that the mention of N15,000,000.00 (Fifteen Million Naira) as the principal sum was a mere slip. Learned counsel further urged this Court to resolve this issue in favour of the 1st Respondent, dismiss this appeal and affirm the judgment of the lower Court.
APPELLANT’S REPLY
In the Reply Brief, the Appellant’s counsel relied on GARUBA Vs. OMOKHODION [2011] 15 NWLR (Pt. 1269) Pg. 180, Paras. C – E & G – H; OGOLO Vs. FUBARA [2003] 11 NWLR (Pt. 831) Pg. 264, Paras. D – E; DANTIYE & ANOR Vs. KANYA & ORS (2008) LPELR-4021 (CA); SOMMER Vs. F.H.A [1992] 1 NWLR (Pt. 219) Pg. 548; FAWEHINMI CONSTRUCTION CO. LTD Vs. OBAFEMI AWOLOWO UNIVERSITY [1998] 9 NWLR (Pt. 553) Pg. 171 and NDAYAKO & ANOR Vs. MOHAMMED & ORS [2006] 17 NWLR (Pt. 1009) Pg. 665 to submit that the Record of Appeal is binding on the Court, the parties and counsel; and that contrary to the submissions of the 1st Respondent, he admitted under cross-examination at page 575 of the Records of Appeal that his business associate. Folashade Shembote brought to him the business of mortgage of his property for a consideration of the sum of N2.5 Million Naira Monthly. Counsel further referred to pages 573-575 of the Records of Appeal to contend that the 1st Respondent confirmed his signatures under cross-examination and acknowledged being conversant with that nature of the mortgage transaction and that he applied for Governor’s consent in respect of the Deed of Tripartite Legal Mortgage.
Learned counsel further referred to Section 135 of the Evidence Act, 2011; SUN INSURANCE PLC Vs. ADEGOROYE [2003] 11 NWLR (Pt. 831) Pg. 400, Paras. A – C; BIOSOLA NIGERIA LIMITED Vs. MAINSTREET BANK LTD & ORS (2013) LPELR-22062 (CA) and ORUWARI Vs. OSLER (2012) LPELR-19764 (SC) to contend that the allegation of forgery of the application for Governor?s consent dated 17th July, 2010 was not proved by the 1st Respondent; counsel submitted that the allegation is an afterthought because the Appellant had acknowledged his signature on the Deed of Tripartite Legal Mortgage under cross-examination and admitted that he issued an application for Governor?s consent; counsel submitted that what has been admitted needs no further proof. Learned counsel further submitted that the Appellant did not raise any fresh issue in this appeal; that the records of appeal clearly show that the Agreement dated 20th, August, 2010. Exhibit DW3 (D) is part of the record and was the basis of the Appellant’s issue No. 2 in its Final Written Address before the lower Court as contained at page 526 of the Records of Appeal.
Learned counsel referred to pages 237-246 of the Records of Appeal and the Counter-claim by the 1st Respondent for the sum of N30, 000,000.00 (Thirty Million Naira) less N2, 800,000.00 (Two Million Eight Hundred Thousand Naira) to submit that contrary to the claim by the Respondent that the N2, 500,000.00 (Two Million Five Hundred Thousand Naira) Monthly pay agreed was in respect of the N40, 000,000.00 (Forty Million Naira) loan/facility; it was actually the consideration contained in the agreement made on the 20th of August, 2010. Exhibit DW3D. Counsel further contended that the loan of N40,000,000.00 was granted on the 9th of July, 2010 while the subsequent loans of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) were granted upon the execution of the Deed of Tripartite Legal Mortgage. Learned counsel argued further that the Appellant is not a party to the agreement made on the 20th of August, 2010 ? Exhibit DW3D and that the 1st Respondent admitted under cross-examination that he did not confirm the said agreement with anybody in the Appellant’s Bank.
Learned counsel referred to LARMIE Vs. D.P.M.S LTD (Supra); KOIKI Vs. MAGNUSSON (Supra); BABA Vs. NIGERIA CIVIL AVIATION TRAINING CENTER ZARIA [1991] 5 NWLR (Pt. 192) Pg. 388; S.P.D.C (NIG) LTD Vs. ALLAPUTA [2005] 9 NWLR (Pt. 931) Pg. 502-503, Paras. G – A; Pg. 515, Para. C ? F; N.N.S.C Vs. SABANA [1988] 18 NWLR (Pt. 74); RAINSON INDUSTRIES LTD Vs. ABIA STATE COMMISIONER FOR HEALTH AND SOCIAL WELFARE& ORS (2014) LPELR-23771 (CA); OLAWEPO Vs. S.E.C [2011] 16 NWLR (Pt. 1272) Pg. 145, Paras. F – G and IWUCHUKWU Vs. NWIZU [1994] 7 NWLR (Pt. 357) Pg. 379 to submit that the Appellant is not privy to the agreement made on the 20th of August, 2010. Exhibit DW3D and that Mr. Abdulkadir Lawal was never the Alter Ego of the Appellant Bank, neither did the Appellant ever hold the said Mr. Abdulkadir Lawal as its agent for the purpose of the agreement made on the 20th of August, 2010. Exhibit DW3D. Counsel further cited BABATUNDE Vs. B.O.N LTD; KAYDEE VENTURES LTD Vs. MW F.C.T (Supra); U.B.N PLC Vs. AJABULE (Supra); and MINAJ HOLDING LTD Vs. AMCON (2015) LPELR-24650 (CA) to reiterate that the Court and the parties are bound by the terms of the Deed of Tripartite Legal Mortgage – Exhibit CW3F (1-18).
Learned counsel further referred to Section 128 of the Evidence Act, 2011 to submit that the Court is bound by the strict, plain and common meaning of the words in the document as they stand; and that parties cannot vary the terms of an agreement by oral evidence or argument. Counsel cited EDWARD NIKAGBATSE Vs. LARBORD OPUYE & ORS [2010] 14 NWLR (Pt. 1213) Pg. 50 at 60 to submit that the findings of the lower Court that the Deed of Tripartite Legal Mortgage was only in respect of the first loan facility of N40, 000,000.00 (Forty Million Naira) and not the other loans of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) is wrong and perverse; and that having held that the Deed of Tripartite Legal Mortgage was validly executed between the parties, the trial Court failed to give effect to the terms and clauses of the said Deed of Tripartite Legal Mortgage and consequently ordered that the release of the title document of the mortgaged property thereby occasioning a miscarriage of justice against the Appellant. Learned counsel for the Appellant cited UNILORIN Vs. AKINOLA (2014) LPELR-23275 (SC) and M.O KANU & SONS COMPANY LTD Vs. F.B.N PLC [2006] 5 SC (Pt. 111) Pg. 80 and urged this Court to allow the appeal.
RESOLUTION OF SUBSTANTIVE APPEAL
ISSUE ONE
In the determination of the instant appeal, the two issues nominated by both the Appellant’s counsel and 1st Respondents counsel are substantially the same and I shall therefore determine the issues erected by the Appellant. The first issue for determination as distilled by the Appellant is: “Whether the recital, charging clause and continuing clause in the Deed of Tripartite Legal Mortgage (Exhibit CW 1(19)) require reversal by the mortgage to the mortgagor for further loans facilities granted to the borrower.” Similarly, the 1st Respondent’s first issue is: ‘Whether the lower Court was right to have held that the Deed of Tripartite Legal Mortgage was executed only in respect of the facility of Forty Million Naira (N40, 000,000.00) granted on the 9th July, 2010 and that the subsequent Twenty Million Naira (N20, 000,000.00) and Forty-Nine Million Five Hundred Thousand Naira (N49, 500,000.00) only are not covered thereby.’
The contention of the Appellant under this issue is that the Deed of Tripartite Legal Mortgage mentioned in several clauses that the banking and credit facilities are to be granted to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and that the mortgaged property is the continuing security for the payment of all monies and the discharge of all obligations and liabilities by the borrower; that there was therefore no legal duty on the Appellant to refer to the 1st Respondent in granting further facilities to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) since the Deed of Tripartite Legal Mortgage was duly executed by the parties particularly the 1st Respondent; and that the 1st Respondent’s argument that the Appellant failed to revert to him in granting further loans/facilities was an afterthought. It was further argued that the Appellant is not privy to the agreement made on the 20th of August, 2010. Exhibit DW3D; that Mr. Abdulkadir Lawal was never the Alter Ego of the Appellant Bank, neither did the Appellant ever hold the said Mr. Abdulkadir Lawal as its agent for the purpose of Exhibit DW3D; that the findings of the lower Court that the Deed of Tripartite Legal Mortgage was only in respect of the first loan facility of N40, 000,000.00 (Forty Million Naira) and not the other loans of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) is wrong and perverse; and that having held that the Deed of Tripartite Legal Mortgage was validly executed between the parties, the trial Court’s order for the release of the title document of the mortgaged property occasioned a miscarriage of justice against the Appellant.
The 1st Respondent on the other hand argued that he is neither aware of nor privy to those facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the Deed of Tripartite Legal Mortgage; that the trial Court was right in refusing to construe the terms of the Deed of Tripartite Legal Mortgage as including the subsequent facilities granted on the 2nd of September and 21st of October, 2010; that there was no such intention between the parties for the continual and limitless grant of facilities by the Appellant to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) using the 1st Respondent’s property as security and that as the Appellant requested for the 1st Respondent’s consent in respect of the N40, 000,000.00 (Forty Million Naira) facility, it ought to have requested for and obtained the 1st Respondent’s consent in respect of subsequent facilities.
The 1st Respondent further argued that the lower Court was right in finding that though the clause created a continuing security, the continuing security created by the Deed of Tripartite Legal Mortgage is only for the loan facility already granted at the time of execution of the said Deed of Tripartite Legal Mortgage.
It is apparent that certain facts are not in contention between the parties; such as the fact that the there was a Deed of Tripartite Legal Mortgage executed by the parties herein including the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna); that the Appellant granted an initial loan facility of N40, 000,000.00 (Forty Million Naira) to the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna); and that the Appellant further granted loan facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) to the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) which were subsequently granted after the execution of the Deed of Tripartite Legal Mortgage.
However, the point of disagreement between the parties is whether the Deed of Tripartite Legal Mortgage – Exhibit CW 1(19) was restricted to the N40, 000,000.00 (Forty Million Naira) facility granted to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and whether or not the said Deed of Tripartite Legal Mortgage was intended or indeed includes the facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were subsequently granted after the execution of the Deed of Tripartite Legal Mortgage. It is pertinent to consider the findings of the learned trial Judge on the issue. At page 623 – 627 of the Records of Appeal the learned trial Judge considered the contentions of the parties and found as follows:
The issue which appears to be in contention is whether or not this deed of legal mortgage Exhibit CW (19) / DW3F1-19 covers the further request of the 1st Defendant to the Claimant for an enhancement of the initial N40,000,000.00 (Forty Million Naira) to N60,000,000.00 (Sixty Million Naira) of 27thAugust 2010 and the offer letter of the Claimant of 2nd September 2010 for additional N20,000,000.00 as well as a further request of the 1st Defendant to the Claimant vide its letter dated 18th October 2010 for another additional loan facility of N60,000,000.00 (Sixty Million Naira) of which the Claimant did offer and the 1st Defendant did accept the offer of facility in the sum of N49,500,000.00 (Forty Nine Million, Five Hundred Thousand Naira Only) vide the Claimants letter of 21st October 2010.
The contention of the 3rd Defendant is that he was not aware of the further loan facilities of N20,000,000.00 (Twenty Million Naira) and N49,500,000.00 (Forty-Nine Million, Five Hundred Thousand Naira) further granted by the Claimant to the 1st Defendant after the execution of the initial facility for N40,000,000.00 granted to the 1st Defendant and of which he executed the deed of tripartite agreement.
The 3rd Defendant contends that he was not informed by the Claimant and the 1st and 2nd Defendants of the further loan and therefore cannot be bound by same.
The contention of the Claimant on the other hand is that the deed of tripartite mortgage executed by parties is a continuing security for the payment of all monies covenanted to be paid by the borrower or otherwise secured
From the foregoing findings by the learned trial Judge, it is not in doubt that the learned trial Judge fully appreciated the case of the parties before him and identified the contention between the parties; which as I have stated above is whether the Deed of Tripartite Legal Mortgage – Exhibit CW 1(19) was restricted to the N40, 000,000.00 (Forty Million Naira) facility granted to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and whether or not the said Deed of Tripartite Legal Mortgage was intended or includes the facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were subsequently granted after the execution of the Deed of Tripartite Legal Mortgage. In concluding on the issue, the learned trial Judge at page 627 of the Records of Appeal found as follows and I quote:
‘The Court finds that from the totality of facts before it, it is clear that there was no consensus ad-idem between the parties in respect to the additional facilities granted the 1st Defendant and that the Deed of Legal Mortgage executed was as regards the initial facility of N40,000,000.00.’
The law is settled that a Court can only interpret the terms of an agreement and cannot rewrite same for the parties. It is also the law that both parties and the Court are bound by the terms of an agreement lawfully entered into by the parties. See LARMIE Vs. D.P.M.S LTD [2005] 18 NWLR (Pt. 958) Pg. 438; (2005) LPELR-1756 (SC) Pg. 31, Paras. D – E where TOBI, JSC (of blessed memory) stated that: The duty of a Judge is to interpret the contract entered between the parties in the light of their clear intention as conveyed by the language. Similarly, in ODUTOLA Vs. PAPERSACK (NIG) LTD [2006] 18 NWLR (Pt. 1012) Pg. 470; (2006) LPELR-2259 (SC) Pg. 28-29, Paras. F ? C the learned Jurist stated that: Parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a Court of law can only interpret the agreement strictly in its legal content and arrive at a conclusion on the law and the law alone in respect of it. A Court of law cannot construe the agreement to covey the meaning ‘as understood’ by the parties, if it is different from the real legal meaning of the agreement See also IHUNWO Vs. IHUNWO & ORS (2013) LPELR-20084 (SC) Pg. 41-42, Paras. E – B and the recent decision of the Supreme Court in OBANYE Vs. UNION BANK (2018) LPELR-44702 (SC) Pg. 16-22, Paras. B – A where NWEZE JSC, restated the settled position of the law when he said that:
‘If the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound by it. It is not the function of a Court to make a contract for the parties or to rewrite the one which they have made’.
Thus, unless it is established in evidence that a party was fraudulently led into the agreement, parties are bound by the written and express terms of their contract. In other words, in the absence of fraud, duress and undue influence or misrepresentation, the parties are bound by their contract
In determining the instant issue, it is necessary to consider and scrutinize the Deed of Tripartite Legal Mortgage – Exhibit CW 1(19)and DW3 (F) (1-19) executed on the 21th of July, 2010 and contained at pages 157 – 170 of the Records of Appeal to determine the intention of the parties. I have carefully perused the said Deed of Tripartite Legal Mortgage particularly the ‘recital, charging clause and continuing clause’ which were more referred to by the Appellant counsel in making submissions on this issue. Whilst there is no express mention or reference of either ?N40, 000,000.00 (Forty Million Naira) or even N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty-Nine Million, Five Hundred Thousand Naira) in the said Deed of Tripartite Legal Mortgage; same must be construed in line with the surrounding circumstances to discover the intention of the parties.
In the instant case, the Recital of the Deed of Tripartite Legal Mortgage at page 158 provides as follows:
1. The Borrower has applied to the Bank for the grant of banking and credit facilities.
2. The Bank has agreed to grant such banking and credit facilities to the Borrower in accordance with the Bank’s facility letters that may be issued from time to time (each of which is hereinafter referred to as the ‘Facility Letter’)
3. In consideration of the Facilities granted to the Borrower, the Mortgagor has agreed to create a mortgage in favour of the Bank over the property more particularly described in the Schedule hereto, to be stamped for the sum of N15, 000,000.00 in the first instance). (Underlined by me)
From the clear and unambiguous words of the recital as reproduced above particularly as underlined by me for emphasis, the Deed of Tripartite Legal Mortgage was made pursuant to Credit Facilities which the ‘Borrower has applied’ for and which the Bank (Appellant herein) agreed to grant to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court); it was in consideration of these facilities which had been applied for and which the Appellant agreed to grant that the Mortgagor (1st Respondent herein) mortgaged his property. The Question is; what were the facilities which had been applied for and agreed to be granted at the time this Deed of Tripartite Legal Mortgage was executed on 21st of July, 2012. The records are very clear that the only existing facility as at the 21st of July, 2012 is the Facility of N40, 000, 000.00 (Forty Million Naira) which was offered by the Bank (Appellant) to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) on the 9th of July, 2012 (before the execution of the Deed of Tripartite Legal Mortgage) as contained at pages 112 ? 116 of the Records of Appeal. The subsequent facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the Deed of Tripartite Legal Mortgage cannot, in my considered view be smuggled into the Deed of Tripartite Legal Mortgage which was very clear, by the express terms of the deed it was made in respect of the facility which had already been granted and not facilities which may be applied for and granted in the future.
With respect to Clause 3 – charging clause, of the Deed of Tripartite Legal Mortgage at page 161 of the Records of Appeal, the reference to the mortgaged property as a ‘continuing security for the payment of all moneys and the discharge of all obligations and liabilities hereby covenanted to be paid by the borrower or otherwise hereby secured’ cannot, in my humble understanding be interpreted to accommodate the subsequent facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the Deed of Tripartite Legal Mortgage. The learned trial Judge was therefore right in his reasoning and conclusion at page 626 of the Records of Appeal where it was found as follows:
‘The question which arises is whether this clause be interpreted to mean that the 3rd defendant/mortgagor is bound in respect of the further facilities granted by the Claimant to the 1st defendant by virtue of this clause.
The Court finds that from the above stated clause, the 3rd defendant has a continuing security for the payments of money ONLY in respect of the consideration secured by that mortgage deed. The clause states categorically that the property is a continuing security for obligations HEREBY COVENANTED to be paid by the borrower or otherwise HEREBY SECURED.
The question is what is covenanted and secured by the deed.
This Court believes therefore that the continuing security can only mean monies covenanted by that deed.?
The foregoing findings by the learned trial Judge cannot be faulted or impeached. I am entirely with the learned trial Judge, and conclusion reached by the learned trial Judge is hereby affirmed by me. The law is trite and cannot be overstated that it is not the function of a Court to make a contract for the parties or to rewrite the one which they have made. See OBANYE Vs. UNION BANK (Supra).
The Appellant also referred to clause 10, continuing clause of the Deed of Tripartite Legal Mortgage in contended that the said Deed of Tripartite Legal Mortgage was intended to cover the facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the Deed of Tripartite Legal Mortgage. However, the content of this clause are quite clear and ought not to have been misconstrued. The said clause contained at page 171 of the Records of Appeal states inter alia that:
‘The security shall be a continuing security notwithstanding the death bankruptcy insolvency or dissolution incapacity of the Mortgagor or Borrower.
The foregoing, provisions read together with the recital and charging clause of the said Deed of Tripartite Legal Mortgage which had been considered above can only be interpreted to mean that the Deed of Tripartite Legal Mortgage executed on the 21st of July, 2012 was made pursuant to and intended to cover only the loan facility of N40, 000,000.00 (Forty Million Naira) granted on the 9th of July, 2012 and not the subsequent facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted on the 2nd of September and 21st of October, 2010, respectively, after the execution of the Deed of Tripartite Legal Mortgage. In the circumstance therefore, I hereby resolve this issue in favour of the 1st Respondent and against the Appellant; the decision of the learned trial Judge that the Deed of Tripartite Legal Mortgage was made only in respect of the facility of N40,000,000.00 (Forty Million Naira) is hereby affirmed by me.
ISSUE TWO
Having resolved the first issue, the second and final issue in this substantive appeal as crafted by the Appellant’s counsel is: “Whether the Judgment of the lower Court is perverse and amount to miscarriage of Justice in view of the finding of facts by the lower Court that there is valid Deed of Tripartite Legal Mortgage between the Appellant, O. C. SUNNIK ENTERPRISES LTD and the 1st Respondent.” The 1st Respondent second issue as formulated is: ‘Whether the Judgment of the lower Court is perverse and amount to miscarriage of Justice in view of the finding of facts by the lower Court that there is valid Deed of Tripartite Legal Mortgage between the Appellant, O. C. SUNNIK ENTERPRISES LTD and the 1st Respondent.’
The Appellant contended that the reasoning of the lower Court in the judgment amounts to conjecture leaving room for speculation; that the lower Court failed to appreciate the fact that the sum of N15,000,000.00 (Fifteen Million Naira) stated in the recital of the Deed of Tripartite Legal Mortgage was the amount to be paid as impressed stamp on the said Deed; that the reasoning and conclusions in the Judgment did not flow logically; and that the lower Court wrongly evaluated the terms of the Deed of Tripartite Legal Mortgage and that while the Court held that the covenant secured by the said Deed of Tripartite Legal Mortgage is the sum of N15, 000,000.00 (Fifteen Million Naira); the lower Court in the same judgment held that the Deed of Tripartite Legal Mortgage was executed in respect of the initial N40, 000,000.00 (Forty Million Naira).
The Appellant further contended that the trial Court failed to properly evaluate and consider Exhibit CW1 (20) – the statement of account of O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and Exhibit DW3 (D); that the trial Court’s findings with respect to the inflow of N140, 000,000.00 (One Hundred and Forty Million Naira) into the said account is wrong and perverse in law; that the lower Court found that the 1st Respondent failed to satisfy the Court that he is entitled to the Counter-claim for the release of the title documents on the property mortgaged under the Deed of Tripartite Legal Mortgage; but in another twist ordered that the same title documents be released forthwith, thereby amounting to a miscarriage of justice.
The 1st Respondent while submitting on this issue argued that the trial Court truly but mistakenly took the N15,000,000.00 (Fifteen Million Naira) contained in the recital to the Deed of Tripartite Legal Mortgage as the principal sum; counsel submitted that despite the slip, the trial Court properly evaluated the case of the parties and made the correct findings on the case of the parties as presented before it; that the issue in contention between the parties at the lower Court was not in respect of the principal sum of N40, 000,000.00 (Forty Million Naira), but that the issue right from the beginning is whether the Deed of Tripartite Legal Mortgage extended to the facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the said Deed of Tripartite Legal Mortgage; and that even if the Court misunderstood the principal sum to be N15, 000,000.00 (Fifteen Million Naira) instead of the N40, 000,000.00 (which is not disputed by the parties), the statement of the lower Court referring to the principal sum as N15, 000,000.00 (Fifteen Million Naira) is at best an obiter dictum which cannot constitute a competent ground of appeal.
The 1st Respondent further argued that looking through the entire Judgment, there was no other place where the lower Court repeated the mistake of referring to the principal sum as N15, 000,000.00 (Fifteen Million Naira); that the Appellant failed to show how the slip negatively affected the Judgment of the lower Court; that the Appellant is harping on technicalities over a mere slip in the Judgment; that parties did not join issues over what the initial principal sum was as they were ad idem that it is N40, 000,000.00 (Forty Million Naira); that the lower Court subsequently stated the correct sum; and that the facts are clear and were correctly appreciated and evaluated by the lower Court and that the decision on every issue before the lower Court was correctly arrived at; that if the alleged fact of miscarriage of justice would not have made any difference in the conclusion and decision of the Court, then it cannot be regarded as a miscarriage of justice; and that the Appellant herein woefully failed to show or demonstrate what injustice he suffered.
The Appellant’s second issue depends so much on the reference by the learned trial judge to ‘the sum of N15, 000,000.00’ as ‘the principal or the consideration’ as can be seen at page 626 of the Records of Appeal where the learned trial Judge stated that:
‘It is trite that one of the requirements of a valid mortgage is that there must be a covenant to pay a principal debt and interest at a particular date, there must therefore be a certain consideration for the mortgage to be valid. The consideration in this instance is as stated in the recital of the tripartite mortgage deed which describes the principal or the consideration to be the sum of N15, 000,000.00 in the first instance.’
In my view, and as rightly submitted by the learned counsel for the 1st Respondent, the reference to N15, 000,000.00 (Fifteen Million Naira) in the above quoted portion of the Judgment of the lower Court can at best be taken as a slip or mistake which has no material effect on the conclusion arrived at by the learned trial Judge; this is because the parties are ad idem as to the amounts of loans that was granted by the Appellant to the O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) which are the initial facility of N40, 000,000.00 (Forty Million Naira) and the latter facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira). More so, the contention between the parties was never with respect to the amount of the loan facilities, rather, their contention had been whether the Deed of Tripartite Legal Mortgage was made only for the initial facility of N40, 000,000.00 (Forty Million Naira) and/or whether the subsequent facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) can be construed as covered by the said Deed of Tripartite Legal Mortgage.
The learned trial Judge cannot be said to have failed to appreciate the case of the parties as contended by the Appellants; the findings of the lower Court had been reproduced in this Judgment already, and at the risk of repeating myself, the findings of the learned trial Judge with respect to the case of the parties at pages 623 ? 627 of the Records of Appeal is as follows:
The issue which appears to be in contention is whether or not this deed of legal mortgage Exhibit CW (19) / DW3F1-19 covers the further request of the 1st Defendant to the Claimant for an enhancement of the initial N40,000,000.00 (Forty Million Naira) to N60,000,000.00 (Sixty Million Naira) of 27th August 2010 and the offer letter of the Claimant of 2nd September 2010 for additional N20,000,000.00 as well as a further request of the 1st Defendant to the Claimant vide its letter dated 18th October 2010 for another additional loan facility of N60,000,000.00 (Sixty Million Naira) of which the Claimant did offer and the 1st Defendant did accept the offer of facility in the sum of N49,500,000.00 (Forty Nine Million, Five Hundred Thousand Naira Only) vide the Claimants letter of 21st October 2010.
The contention of the 3rd Defendant is that he was not aware of the further loan facilities of N20,000,000.00 (Twenty Million Naira) and N49,500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) further granted by the Claimant to the 1st Defendant after the execution of the initial facility for N40,000,000.00 granted to the 1st Defendant and of which he executed the deed of tripartite agreement.
The 3rd Defendant contends that he was not informed by the Claimant and the 1st and 2nd Defendants of the further loan and therefore cannot be bound by same.
The contention of the Claimant on the other hand is that the deed of tripartite mortgage executed by parties is a continuing security for the payment of all monies covenanted to be paid by the borrower or otherwise secured
The foregoing findings of the learned trial Judge, show that the learned trial Judge fully understood and appreciated the case of the parties before the Court and identified the issue in controversy between the parties. Therefore, the singular reference to ‘the sum of N15, 000,000.00’ as ‘the principal or the consideration’ at page 626 of the Records of Appeal can only be considered as a mistake or a slip which has no effect or influence on the outcome of the case as decided by the learned trial Judge. The law is trite that a mistake or slip in a Judgment will not result in the setting aside of the Judgment, unless the said mistake or slip is material and/or substantial and is shown to have affected the decision reached in the Judgment. See: OSAFILE & ANOR Vs. ODI & ANOR [1990] 2 NWLR (Pt. 137) 130; (1990) LPELR-2783 (SC) Pg. 28, Paras. C – E; ONYEMAIZU Vs. OJIAKO [2010] 4 NWLR (Pt. 1185) 504; (2010) LPELR-2738 (SC) Pg. 20-21, Paras. G – E and MOBIL PRODUCING (NIG) UNLTD Vs. JOHNSON & ORS (2018) LPELR-44359 (SC) Pg. 42, Paras. A – E where the Supreme Court per OKORO, JSC held that:
‘In Amasike v Registrar General CAC (2010) 7 MJSC 86, this Court held emphatically that it is not every error or mistake that results in a reversal of a judgment and an appellate Court must be wary of this position of the law. An error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must occasion a substantial miscarriage of justice. It has to be noted that it is not every slip committed by a judge in his judgment that will amount to a misdirection which will result in the appeal being allowed, the misdirection to be fatal, must have occasioned a substantial miscarriage of justice. The mistake must have affected or influenced the decision appealed against before it can result in the reversal of the decision.’
In the circumstance therefore, all the arguments and submissions of the Appellant on this issue are hereby discountenanced by me. The sole reference to ‘the sum of N15, 000,000.00’ as ‘the principal or the consideration’ at page 626 of the Records of Appeal cannot be singled out and construed as a misapprehension by the learned trial Judge of the case of the parties. The scope of the Appellant’s contention shows that the Appellant apparently singled out and isolated a sole paragraph out of the Judgment which is contrary to the settled position of the law that a Judgment must be read as a whole and not by isolating pages and paragraphs thereof thereby picking and choosing pockets from the judgment. See ADEGBUYI Vs. APC & ORS (2014) LPELR-24214 (SC) Pg. 20, Paras. A – E where the Supreme Court of Nigeria cited its earlier decision in ADEBAYO Vs. A.G. OF OGUN STATE [2008] 7 NWLR (1055) 201; (2008) LPELR-80 (SC) Pg. 22-23, Paras. F – A and held that:
‘In order to pick faults in a judgment of a trial Judge, an appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient installments to underrate or run down the judgment. While an appellate Court can concede to counsel the right to be partisan to the case of his client, the Court will not allow him to construe a judgment parochially since the judgment is available to the construction.’
The Appellant’s further contention under this issue is that the trial Court failed to properly evaluate and consider Exhibit CW1 (20), the statement of account of O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and that the trial Court’s findings as regards the inflow of N140, 000,000.00 (One Hundred and Forty Million Naira) into the said account is wrong and perverse in law. However, the learned Counsel for the Appellant failed to show how the findings of the learned trial Judge are wrong and perverse. The findings of the learned trial Judge with respect to the said statement of account are at page 627 of the Records of Appeal where the Court found and held as follows:
The Court has also carefully considered Exhibit CW1(20) the Statement of Account of the 1st Defendant covering the period 15/06/10 to 04/05/2012. It is clear from the Exhibit that the Claimant Bank gave value to the 1st Defendant on the N40,000,000.00 (Forty Million Naira) facility on the 3rd day of August, 2010 and that inflows into the 1st Defendant’s account with the Claimant between then and 14th October, 2010 was well over N140,000,000.00 (One Hundred and Forty Million Naira)
It is therefore clear that as at that date, the 1st Defendant had liquidated the facility secured by the property of the 3rd Defendant as he was no longer indebted to the Claimant Bank on the facility of N40Million granted to the 1st Defendant.
While it is not in doubt that this Court, as an Appellate Court has the power to interfere with the findings of the trial Court; such powers of interference cannot be exercised unless the findings and evaluation of evidence by the trial Court has been shown to be perverse and wrong, and in so doing, it is not sufficient to merely allege that a finding is wrong and perverse, it must be shown to the Court how the trial Court erred. In KAYDEE VENTURES LTD Vs. THE HON. MINISTER OF F.C.T & ORS [2010] 7 NWLR (Pt. 1192) 171; (2010) LPELR-1681 (SC) Pg. 41-42, Paras. E ? C, the Supreme Court of Nigeria per MUHAMMAD, JSC held as follows:
where genuine cases have been pointed out by any of the parties which will warrant interference by a higher Court, then the higher Court had every latitude to exercise its power of stepping into the shoes of the trial Court with a view to correcting the wrongs committed by the trial Court in the interest of justice
(Underlined for emphasis)
See also DOGARI Vs. WAZIRI & ANOR (2016) LPELR-40320 (CA) Pg. 12-14, Paras. F ? A; MR. BABATUNDE HARDING & ANOR Vs. THE ADMINISTARATOR GENERAL AND PUBLIC TRUSTEE OF LAGOS STATE & ANOR (2016) LPELR-40990 (CA) Pg. 25-26, Paras. E ? C and OLUDE Vs. STATE (2018) LPELR-44070 (SC) Pg. 16-17, Paras. E ? D where NWEZE, JSC held that: Counsel for the Appellant, thus, had a duty to demonstrate the perversity? Having failed to do so, there is no basis for this Court’s interference, he had a duty to show that the findings are perverse; there was a miscarriage of justice or that the principle of Law or procedure was not followed
From the authorities cited, it is settled that a party who complains of perversity or wrong in a judgment has a duty to show same; it is not sufficient for a party to merely state that a particular finding of the trial Court is perverse without showing how or where the trial Court had gone wrong.
It will not be the duty of an appellate Court to embark on shadow chasing, or critical analysis and scrutiny of a judgment seeking and searching for wrongs and errors in the evaluation of evidence or findings of the trial Court to substantiate and aid the allegations of a party who merely alleged wrong and/or perversity in a judgment but failed to point out where the wrong occurred with specificity and particularity.
In the instant case, the Appellant merely stated at paragraph 4.11 of the Appellant’s Brief that the trial Court failed to properly evaluate and consider Exhibit CW1 (20) ? the statement of account of O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court); however, the trial Court found otherwise, that it ‘has also carefully considered Exhibit CW1(20) the Statement of Account of the 1st Defendant covering the period 15/06/10 to 04/05/2012. It is clear from the Exhibit that the Claimant Bank gave value to the 1st Defendant on the N40,000,000.00 (Forty Million Naira) facility on the 3rd day of August, 2010 and that inflows into the 1st Defendant?s account with the Claimant between then and 14th October, 2010 was well over N140,000,000.00 (One Hundred and Forty Million Naira). It is therefore clear that as at that date, the 1st Defendant had liquidated the facility secured by the property of the 3rd Defendant as he was no longer indebted to the Claimant Bank on the facility of N40Million granted to the 1st Defendant.’
The Appellant’s counsel has neither contended nor shown that the entries in Exhibit CW1 (20) – the statement of account of O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) are contrary to what the trial Court found or that there was never any inflow of over N140, 000,000.00 (One Hundred and Forty Million Naira) between 3rd day of August, 2010 and the 14th day of October, 2010 as found by the learned trial Judge. In the circumstance therefore, there is no ground for this Court to interfere with the findings of the lower Court with respect to Exhibit CW1 (20) – the statement of account of O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) which is to the effect that there was an inflow of well over N140, 000,000.00 (One Hundred and Forty Million Naira) between 3rd day of August, 2010 and the 14th day of October, 2010 into the said account and that consequently, the facility of N40, 000,000.00 (Forty Million Naira) granted by the Appellant to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and secured by the 1st Respondent’s property had been liquidated.
The Appellant’s counsel, in my view, at paragraphs 4.05 – 4.07 of the Appellant’s Brief attempted to raise some contradictions in the Judgment of the lower Court by quoting paragraphs from the Judgment at pages 627, 623, and 626 of the Records of Appeal. However contrary to the Appellant?s contention, the reasoning of the learned trial Judge is logical and has not been shown by the Appellant to be perverse. The findings of the learned trial Judge at page 623 of the Records of Appeal as quoted by the Appellant are that the Deed of Tripartite Legal Mortgage is executed by the Appellant, O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and the 1st Respondent is valid; the Appellant has not challenged the validity of the said Deed of Tripartite Legal Mortgage; neither has the 1st Respondent who contended the validity of the said Deed of Tripartite Legal Mortgage at the lower Court and against whom the trial Court made the finding that the Deed of Tripartite Legal Mortgage is valid.
It was consequent upon the trial Court?s findings that the Deed of Tripartite Legal Mortgage is valid that the learned trial Judge found at the paragraphs at pages 626 and 627 of the Records of Appeal as quoted by the Appellant that the valid Deed of Tripartite Legal Mortgage was only with respect to the initial facility of N40, 000,000.00 (Forty Million Naira) and that there was no consensus ad idem between the parties with respect to the additional/subsequent facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) granted after the execution of the Deed of Tripartite Legal Mortgage by the parties.
The learned Counsel for the Appellant made submissions with respect to the Agreement dated 20th August, 2010 – Exhibit DW3 (D) particularly in the Reply Brief contending that the Appellant is not privy to the said Agreement. However, these submissions are not against any findings of the lower Court against the Appellant. The findings of the lower Court with respect to the Agreement dated 20th, August, 2010 ? Exhibit DW3 (D) were against the 1st Respondent and which in fact forms the basis of the Cross-Appeal which shall be considered and determined hereinafter. The findings of the lower Court with respect to the said Agreement dated 20th, August, 2010 – Exhibit DW3 (D) is at page 628 of the Records of Appeal, it reads as follows:
‘Now as to whether the 3rd Defendant is entitled to the sum of N30 Million Naira (less 2.8Million paid to the 3rd Defendant) being the Two Million Five Hundred Thousand Naira (N2,500,000.00) promised as monthly returns for the period of one year.
The Court has carefully considered the Exhibit DW3 (D) the executed agreement dated the 20th day of August, 2010 between the 2nd Defendant, the 3rd Defendant and Mr. Abdul Kadir Lawal. The Claimant has stated that same was not with their authority and there is nothing on the face of same to suggest that there is any connection with the Claimant Company as same is neither signed by a Director/Secretary or indeed any one on managerial status, neither is the Company’s seal affixed to same.
In addition to the foregoing findings which are in favour of the Appellant and against the 1st Respondent; the trial Court while further agreeing with the learned Counsel for the Appellant at the lower Court concluded at page 629 of the Records of Appeal that Appellant ‘is not bound by the terms of the agreement dated 20th August 2010.’
Therefore, it does not lie with the Appellant to challenge findings of the lower Court in its favour. The traditional role of an Appellant is to challenge the findings and decision of the trial Court or Tribunal which are not in its favour while it is the role of the Respondent to defend the Judgment appealed against; the Respondent who is aggrieved by the Judgment or portions thereof may also file a Respondent’s Notice or a Cross-Appeal, as may be applicable and as done by the 1st Respondent in the instant case. See: OKPA Vs. IREK & ANOR (2011) LPELR-4249 (CA) Pg. 18-10, Paras. G – A; ORELUSI Vs. LANLEHIN & ORS (2011) LPELR-4746 (CA) Pg. 35, Paras. E – F and IGBA Vs. STATE (2013) LPELR-21183 (CA) Pg. 12, Paras. A – A where this Court held that: Ideally, when an appeal is against the decision of a trial Court the appellant is presumed to be opposing the decision appealed against, while the respondent is supportive of the decision of the lower Court unless there is a cross-appeal
In the circumstance therefore, the Appellant has failed to show/establish that the findings of the lower Court with respect to both Exhibit CW1 (20) – the statement of account of O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) and Exhibit DW3 (D) – the Agreement dated 20th August, 2010 amounted to perversity and resulted in a miscarriage of justice. In the light of the foregoing findings, I hereby resolve the second issue against the Appellant and in favour of the 1st Respondent. Consequently, having resolved the two issues against the Appellant, this appeal therefore is devoid of merit and same is hereby dismissed by me. The decision of the lower Court delivered by OGALA, J. on the 28th day of May, 2015 in Suit No: LD/1484/2012 is hereby affirmed by me.
I will now proceed to consider and determine the Cross-Appeal which is predicated on the findings of the lower Court with respect to the Counter-Claim.
THE CROSS APPEAL
As earlier stated, the 1st Respondent filed a Notice of Cross-Appeal on the 30th of November, 2018 against the decision of the lower Court with respect to the Counter-claim of N30, 000,000.00 (Thirty Million Naira). The 1st Respondent/Cross-Appellant?s Brief in respect of the Cross-Appeal was filed on the 3rd day of December, 2018 by Yakubu Dauda Esq. The Appellant/Cross-Respondent?s Brief was filed by F. B. Odesanya Esq. on the 30th day of November, 2018. The 1st Respondent/Cross-Appellant filed a Reply Brief to the Appellant/Cross-Respondent?s Brief on the 3rd of December, 2018. The issues nominated for determination by the 1st Respondent/Cross-Appellant are as follows:
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1. Whether the lower Court was wrong to have declared that the Cross-Appellant?s Counter-Claim failed in its entirety as well as refused to grant the relief of Thirty Million Naira (N30, 000,000) only less Two Million Eight Hundred Thousand Naira (N2, 800,000) only pursuant to the tripartite agreement of 20th August, 2010 only on the ground that by virtue of the status and perceived past experience of the cross-appellant as a former Managing Director of a bank and not on the basis of the hard facts placed before the Court.
2. Whether the Judgment of the lower Court is perverse and against the weight of evidence.
The Appellant/Cross-Respondent?s counsel on the other hand crafted a sole issue for determination, the issue is reproduced as follows:
Whether the judgment of the trial Court which refused the Cross-Appellant?s counter claim for N30 Million Naira monthly returns as consideration for the use of the Cross Appellant?s Property to secure the loans/facilities granted by the 1st Cross Respondent is proper and justified in law in view of pleaded facts and evidence adduced at the trial.
SUBMISSIONS OF COUNSEL FOR THE 1ST RESPONDENT/CROSS-APPELLANT
Learned counsel for the 1st Respondent/Cross-Appellant referred to Exhibit DW3 (D) at page 293 of the Records of Appeal to submit that the trial Court relied on extraneous facts rather than making findings on the oral and documentary evidence placed before it in determining the Counter-Claim of the 1st Respondent/Cross-Appellant. Counsel relied on UKPO Vs. NGAJI [2010] All FWLR (Pt. 514) Pg. 144 at 168, Paras. D ? F to submit that a Court of law has no jurisdiction to substitute personal opinion or prejudice for clear, cogent and unassailable evidence adduced by the parties; and that the trial Court ought to have made its findings from the documentary evidence placed before the Court by the 1st Respondent/Cross-Appellant; but that the trial Court completely closed its eyes to the documentary evidence and relied on the extraneous fact that the 1st Respondent/Cross-Appellant once being on the managerial cadre in the Banking Sector ought to be conversant with the operations and conduct of mortgage transactions.
Learned counsel for the Cross-Appellant argued that Exhibit DW3 (D) was admitted in evidence without objection and that the agreement therein did not give any consideration to the Cross-Appellant?s experience in the banking sector; but that the agreement was that the Cross-Appellant will be paid N2, 500,000.00 (Two Million, Five Hundred Thousand Naira) on a monthly basis as consideration for the use of his property as collateral for the facility N40, 000,000.00 (Forty Million Naira) granted to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court). Counsel further submitted that the finding that the Appellant/1st Cross-Respondent is not privy to Exhibit DW3 (D) is unsustainable considering that the unchallenged and uncontroverted testimonies of the Appellant/1st Cross-Respondent’s witness that throughout the transaction, Mr. Abdulkadir Lawal, the Relationship Manager of the 1st Cross-Respondent acted for and on behalf of the 1st Cross-Respondent. Learned counsel submitted that the Appellant/ 1st Cross-Respondent who had benefited from the actions and all the documents procured by the said Mr. Abdulkadir Lawal cannot now renege on Exhibit DW3 (D) because of its detriment.
Learned counsel cited UKPANAH Vs. AYAYA [2011] All FWLR (Pt. 589) Pg. 1163 at 1178-1179 to submit that having held Mr. Abdulkadir Lawal out as its agent and accepting the favorable acts done by him; the 1st Cross-Respondent, as a principal, is bound by the acts of its agent, Mr. Abdulkadir Lawal which were ratified by the 1st Cross-Respondent. Counsel further argued that the said Mr. Abdulkadir Lawal never claimed to have acted on his own at any time; and that the suit leading to this appeal was commenced as a result of the Petition written to the 2nd Cross-Respondent by the said Mr. Abdulkadir Lawal. Counsel referred to ANYAOHA Vs. OBIOHA [2014] 6 NWLR (Pt. 1404) Pg. 445 at 475-479, Paras. H ? A and SMAB INTER-TRADE LTD Vs. BULANGU [2013] All FWLR (Pt. 693) Pg. 2019 to submit that the 1st Cross-Respondent will not be allowed to profit from his own wrongdoing and avoid the detriment resulting from actions that were favorable to it. Learned counsel relied on I.N.E.C Vs. A.C [2009] All FWLR (Pt. 480) Pg. 732 at 793 to submit that the Appellant/1st Cross-Respondent is therefore privy to Exhibit DW3 (D) which was executed on its behalf by Mr. Abdulkadir Lawal.
Learned counsel contended that the trial Court resorted to personal opinion on the person of the 1st Respondent/Cross-Appellant rather than scrutinizing the evidence placed before it including Exhibit DW3 (D) with respect to the 1st Respondent/Cross-Appellant?s Counter-claim. Counsel cited DRAGETANOS CONSTRUCTION (NIG) LTD Vs. FAB MADIS VENTURES LTD [2012] All FWLR (Pt. 616) Pg. 441 at 482 to argue that parties are bound by whatever they have freely contracted as long as it is lawful; and that neither the Court nor the parties has the right or power to free any party from whatever liability that results from any agreement which the parties are privy to. Learned counsel further referred to Exhibits DW3 (A), DW3 (B)1 & 2, DW3 (C) and DW3 (D) to submit that the findings by the lower Court that the Cross-Appellant ought to have incorporated the said agreement into the Deed of Tripartite Legal Mortgage indicates that the trial Court failed to appreciate the case of the parties because Exhibit DW3 (D) was a necessity for the continuation of the Deed of Tripartite Legal Mortgage; and that making non-incorporation of Exhibit DW3 (D) which was made after the execution of the Deed of Tripartite Legal Mortgage in the said Deed of Tripartite Legal Mortgage a ground or basis for the refusal of the Counter-claim is perverse and insupportable in law.
Learned counsel referred to NA?UMBA Vs. NAHUCHE [2010] All FWLR (Pt. 506) Pg. 1963 at 1972-1973; NIGERIAN BOTTLING CO. PLC Vs. OLAREWAJU [2007] All FWLR (Pt. 364) Pg. 360 at 370; A.G., FEDERATION Vs. ABUBAKAR [2007] All FWLR (Pt. 375) Pg. 405; OLEKSANDR Vs. L.D. COY LTD [2015] All FWLR (Pt. 793) Pg. 1849-1850 and ADEGBUYI Vs. MUSTAPHA [2010] All FWLR (Pt. 532) Pg. 1753 at 1804 to submit that though it is not the practice of this Court, as an appellate Court, to disturb the findings of a lower Court, except such findings of the lower Court are found to be perverse, either by being based on wrong law or poor appreciation/evaluation of the facts or cannot be supported by the facts contained in the pleadings or supported by the admitted evidence. Counsel cited ADIMORA Vs. AJUFO [1988] 3 NWLR (Pt. 80) Pg. 1 at 16 and ATOLAGBE Vs. SHORUN [1985] 1 NWLR (Pt. 2) Pg. 360 at 373 and then referred to the reliefs sought in the Counter-claim at pages 243-246 of the Records of Appeal; Exhibits DW3 (A), DW3 (B)1 & 2, DW3 (C) and DW3 (D); and the findings of the lower Court at page 629 of the Records of Appeal to submit that the decision of the lower Court is perverse because the Court ignored the documentary and oral evidence placed before it and that the Counter-claim was neither made against the 2nd Cross-Respondent (4th Defendant) nor against Cross-Appellant (3rd Defendant) who himself filed the Counter-claim.
Learned counsel again submitted that the conclusion reached by the trial Court that the Cross-Appellant was not entitled to the Counter-claim because Exhibit DW3 (D) was not incorporated in the Deed of Tripartite Legal Mortgage is perverse. Counsel relied on FGN Vs. SHOBU (NIG) LTD [2014] 4 NWLR (Pt. 1396) Pg. 45 at 60, Paras. E – G; NDOMA-EGBA Vs. CHUKWUOGOR [2004] 6 NWLR (Pt. 869) Pg. 382 and AGBONMAGBE BANK LTD Vs. GENERAL MANAGER, G.B. OLIVANT LTD [1961] 1 All NLR Pg. 116 to submit that the 1st Cross-Respondent is bound by the actions of Mr. Abdulkadir Lawal; and that the 1st Cross-Respondent only tried to dissociate itself from Exhibit DW3 (D) but did not contend the fact that same was executed by Mr. Abdulkadir Lawal, its Relationship Manager. Counsel further cited OKESUJI Vs. LAWAL [1986] 2 NWLR (Pt. 22) Pg. 417 at 424 to submit that having failed to defend the Counter-claim against them despite the fact that they were served with all the processes; the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) are deemed to have admitted all the claims against them. Learned counsel strenuously argued that Mr. Abdulkadir Lawal also acted for and on behalf of the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) and that the 1st Cross-Respondent and that the 1st Cross-Respondent was therefore liable to pay the N30, 000,000.00 (less N2, 800,000.00) claimed by the Appellant in the Counter-Claim. Learned Counsel urged that this issue be resolved in favour of the Cross-Appellant.
ISSUE TWO
Learned counsel for the 1st Respondent/Cross-Appellant relied onABACHA Vs. FRN [2006] 4 NWLR (Pt. 970) Pg. 239; and referred to paragraphs 2 and 5 at page 244 of the Records of Appeal; and Exhibit CW1 (9) to argue that the Cross-Appellant only gave his consent to the loan/facility of N40, 000,000.00 (Forty Million Naira) and that the subsequent facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the Deed of Tripartite Legal Mortgage were without his knowledge. Counsel argued that the 1st Cross-Respondent?s Witness testified that the facility for N40, 000,000.00 (Forty Million Naira) had been repaid on the 14th October, 2010; and that having regards to the pleadings and evidence adduced before the lower Court, the Cross-Appellant satisfactorily proved his Counter-claim and entitlement to the reliefs sought therein.
Learned counsel contended that the failure to call Mr. Abdulkadir Lawal as a witness shows that the 1st Cross-Respondent had something to hide. Counsel argued that the 1st Cross-Respondent cannot deny liabilities of the actions of Mr. Abdulkadir Lawal which culminated into Exhibit DW3 (D) and that having benefited from his actions; the 1st Cross-Respondent was bound by Exhibit DW3 (D) which was entered into by Mr. Abdulkadir Lawal. Learned counsel further referred to the admission of the 1st Cross-Respondent’s sole witness that the said Mr. Abdulkadir Lawal acted on behalf of the bank in all these transactions. Counsel submitted that the trial Court was in error to have held that the Cross-Appellant failed to establish his Counter-claim against all the Cross-Respondents and as such its findings and conclusions are perverse. Learned counsel urged this Court to resolve all the issues in favour of the Cross-Appellant and to grant the reliefs sought.
SUBMISSIONS OF COUNSEL FOR THE 1ST CROSS-RESPONDENT
Learned counsel for the 1st Cross-Respondent cited BRAWAL SHIPPING NIGERIA LTD Vs. OMETRACO INTERNATIONAL LTD [2011] 10 NWLR (Pt. 1255) Pg. 290 at 312, Paras. G – H to argue that the Cross-Appellant did not lead evidence to prove the fact that the 1st Cross-Respondent sent Mr. Abdulkadir Lawal to plead with him that the transaction was genuine and that he should use his property to secure the facilities granted to O. C. SUNNIK ENTERPRISES LTD; and that no evidence was proffered to prove the powers of Mr. Abdulkadir Lawal to execute Exhibit DW3 (D). Learned counsel cited to UDENGWU Vs. UZUEGBU [2003] 13 NWLR (Pt. 836) Pg. 156-157, Paras. E – A; OTUKPO Vs. JOHN [2012] 7 NWLR (Pt. 1299) Pg. 383, Paras. C – E and OHOCHUKWU Vs. A.G., RIVERS STATE [2012] 6 NWLR (Pt. 1295) Pg. 78, Paras. C – B to submit that the parties are bound by their pleadings.
Learned counsel referred to paragraph 5 of the Statement of Claim; paragraph 4 of the Cross-Appellant?s Statement of Defence at page 238 of the Records of Appeal; paragraphs 9 & 15 of the Reply by the Cross-Respondent at pages 421 & 422 of the Records of Appeal; and paragraph 7 of the Cross-Respondent?s Defence to the Counter-claim to submit that the Cross-Appellant admitted in his pleadings and gave evidence under Cross-examination at page 575 of the Records of Appeal that he had been a Managing Director of a Bank and that he did not confirm Exhibit DW3 (D) with the 1st Cross-Respondent Bank. Counsel cited AKOMOLAFE Vs. GUARDIAN PRESS LTD [2010] 3 NWLR (Pt. 1181) Pg. 351, Paras. F – H, Pg. 353-354, Paras. A – B; JIMOH Vs. AYANDOYE & ORS (2012) LPELR-8006 and LINUS & ANOR Vs. KINGSLEY & ORS (2012) LPELR-9227 (CA) to submit that evidence elicited under cross-examination which established a fact pleaded by an adverse party is admissible and reliable and the Court can rely on same in arriving at a just decision.
Learned counsel further referred to CHUKWU CONSTRUCTION CO. LTD Vs. UWECHIA [2000] 1 NWLR (Pt. 643) Pg. 93 and FALINGO Vs. FALINGO [2003] 13 NWLR (Pt. 836) Pg. 156-157, Paras. E – A to contend that the trial Judge properly evaluated the pleadings and evidence adduced by the parties and arrived at a sound and impeachable conclusion with respect to Exhibit DW3 (D); counsel urged this Court to discountenance the arguments and submissions of the Cross-Appellant; and that the condition for interference by an appellate Court are absent in the instant case. Counsel further submitted that the arguments about the Cross-Appellant not stepping his foot into any banking hall of the 1st Cross-Respondent’s; that it was Mr. Abdulkadir Lawal who brought the Deed of Tripartite Legal Mortgage and persuaded him to sign; as well as the fact that Exhibit DW3 (D) – the Agreement dated 20th August, 2010 is an addendum to the Deed of Tripartite Legal Mortgage are all arguments which were not pleaded nor established by evidence at the lower Court; relying on OBASUYI & ANOR Vs. BUSINESS VENTURES [2000] 5 NWLR (Pt. 658) Pg. 668 at 682, counsel urged this Court to discountenance the arguments of the Cross-Appellant on these facts which were not pleaded or proved.
Learned counsel further cited NDULUE Vs. IBEZIM [2002] 12 NWLR (Pt. 780) Pg. 139 at 151-151; ODOFIN Vs. ONI [2001] 3 NWLR (Pt. 701) Pg. 488 and OWHONDA Vs. EKPECHI [2003] 17 NWLR (Pt. 849) Pg. 326 to submit that it is trite that a slip in a judgment will only result in the judgment being overturned on appeal where the error is substantial and has occasioned a miscarriage of justice. Counsel argued that the error of referring the Counter-claim as against the ‘1st – 4th Defendants’ is not substantial enough to warrant the judgment to be set aside. Learned counsel further relied on SABRUE MOTORS NIG LTD Vs. RAJAB ENTERPRISES NIG LTD [2002] 4 SC (Pt. 11) Pg. 67; AJADI Vs. OKENIHUN [1985] 1 NWLR (Pt. 3) Pg. 484 at 492; A.G LEVENTIS NIG PLC Vs. AKPU [2007] 17 NWLR (Pt. 1063) Pg. 416; ONYKWELU Vs. ELF PETROLEUM NIGERIA LTD (2009) LPELR-2733 (SC); ALUBANKUDI Vs. A.G FEDERATION [2002] 17 NWLR (Pt. 796) Pg. 338 and JUMBO Vs. BRYANKO INTERNATIONAL LTD [1995] 6 NWLR (Pt. 403) Pg. 545 at 555-556 to submit that the contention that the 1st Cross-Respondent be made liable to pay the N2, 500,000.00 monthly is contrary to the pleadings and evidence adduced at the trial and the reliefs sought in the Counter-claim and must be discountenanced by this Court.
Learned counsel referred to Clause 2 Exhibit DW3 (D) and paragraph 9 of the Statement of Defence at page 239 of the Records of Appeal to submit that the agreement to pay N2, 500,000.00 monthly consideration to the Appellant was never made by the 1st Cross-Respondent; counsel relied on Sections 131-133 of the Evidence Act, 2011; SALEH Vs. BON LTD [2006] 6 NWLR (Pt. 976) Pg. 316; AEROFLOT Vs. USA [2003] 3 NWLR (Pt. 27) Pg. 188 and ISHOLA Vs. SGB (NIG) LTD[1997] 2 NWLR (Pt. 488) Pg. 405 to submit that there is nothing on record to prove the submissions that the 1st Cross-Respondent paid the Cross-Appellant N2, 800,000.00 pursuant to Exhibit DW3 (D). Learned counsel further argued that unlike the Deed of Tripartite Legal Mortgage, 1st Cross-Respondent was neither a party to Exhibit DW3 (D) nor was it executed by any of the 1st Cross-Respondent?s Directors or Secretary nor was its company seal affixed thereto. Counsel referred toS.P.D.C (NIG) LTD Vs. ALLAPUTA (Supra) at Pg. 515, Paras. C ? F to submit that Mr. Abdulkadir Lawal not being a Director or alter ego of the 1st Cross-Respondent had no capacity in law to sign any document to bind the 1st Cross-Respondent such as Exhibit DW3 (D) without the authority, knowledge and consent of the 1st Cross-Respondent.
Finally, on this point, learned counsel for the 1st Cross-Respondent argued that the Cross-Appellant failed to appreciate the provisions of Section 66 of the Companies and Allied Matters Act, LFN 2004 in contending that Mr. Abdulkadir Lawal acted as an agent of the 1st Cross-Respondent. Counsel referred to OLAWEPO Vs. S.E.C (Supra) and IWUCHUKWU Vs. NWIZU (Supra) to submit that the lower Court properly evaluated the facts and evidence adduced and arrived at a right conclusion at page 628 of the Records of Appeal and consequently refused the counter-claim counsel argued that the Judgment is neither perverse nor against the weight of evidence and should not be disturbed.
Learned counsel urged this Court to resolve this issue in favour of the 1st Cross-Respondent; and dismiss the cross-appeal.
CROSS-APPELLANT’S REPLY
Learned counsel for the Cross-Appellant in reply argued that the cross-appeal succeeded in part considering that the second relief sought therein was for the 1st Cross-Respondent (Claimant) to release the title document of his property situate at G11, Victoria Garden City, Lekki back to the Cross-Appellant and the trial Court made an order directing the 1st Cross-Respondent to return the said title document to the Cross-Appellant with immediate effect. Counsel relied on ADAMS Vs. UMAR [2010] All FWLR (Pt. 513) Pg. 1289 at 1388, Paras. B ? D to submit that a judgment must be interpreted as a whole and not in part. Counsel cited Section 123 of the Evidence Act; AJIBULU Vs. AJAYI [2014] 2 NWLR (Pt. 1392) Pg. 483 at 499, Paras. D – E; BAALO Vs. FRN (2016) LPELR-40500 (SC); TAIWO Vs. ADEGBORO [2011] 11 NWLR (Pt. 1259) Pg. 562 and CHUKWU Vs. AKPELU [2014] 13 NWLR (Pt. 1424) Pg. 359 at 387, Paras. E – H to contend that 1st Cross-Respondent’s witness admitted that the N40, 000,000.00 (Forty Million Naira) had been paid back by the deposit of N100, 912, 782.00 into the account of the 1st Defendant (O. C. SUNNIK ENTERPRISES LTD) with the 1st Cross-Respondent; and that facts admitted need no further proof.
Learned counsel referred to paragraphs 7 – 12 and 14 – 17 of the Cross-Appellant’s Statement of Defence and Counter-claim at pages 139-141 and paragraphs 5 – 6 at pages 144-145 of the Records of Appeal of the Records of Appeal to argue that the Cross-Appellant pleaded the facts that Mr. Abdulkadir Lawal made several efforts and gave assurances to convince the Cross-Appellant to agree to the use of his property as collateral to secure the loan/facility of N40, 000,000.00 (Forty Million Naira); counsel cited ONUIGWE Vs. EMELUMBA [2010] All FWLR (Pt. 517) Pg. 698 at 735 to submit that the Court must consider the case of the parties wholly and not in isolation and to urge this Court to consider the whole pleadings and evidence of the parties. Learned counsel referred to Section 128 (1) of the Evidence Act, 2011; ILA ENTERPRISES LIMITED Vs. UMAR ALI & CO (NIGERIA) LTD [2013] 15 NWLR (Pt. 1376) Pg. 191 at 202-203, Paras. H – A; OLUSANYA Vs. OSINLEYE [2013] 12 NWLR (Pt. 1367) Pg. 148 at 168 and ODUWOLE Vs. L.S.D.P.C [2004] 9 NWLR (Pt. 878) Pg. 402 to contend that Exhibit DW3 (D) is an addendum to the Deed of Tripartite Legal Mortgage as both were executed by the same parties.
Learned counsel further submitted that the fact that the Cross-Appellant did not confirm Exhibit DW3 (D) with any other officer of the 1st Cross-Respondent is of no moment in the face of the admission by the 1st Cross-Respondent?s witness at page 567 of the Records of Appeal. Counsel cited JOSEPH Vs. FIRST INLAND BANK (NIG) PLC [2010] All FWLR (Pt. 504) Pg. 1487 at 1513, Para. C; ADEJUMO Vs. AYANTEGBE [1989] 3 NWLR (Pt. 110) Pg. 417 and NWABUOKU Vs. OTTIH [1961] 2 SCNLR Pg. 232 and ODULAJA Vs. HADDAD [1973] 11 SC Pg. 357 to contend that having failed to disprove the testimony of the Cross-Appellant that he was paid N2, 800,000.00 (Two Million Eight Hundred Thousand Naira) by the 1st Cross-Respondent through Mr. Abdulkadir Lawal, the 1st Cross-Respondent cannot contend that the Cross-Appellant failed to prove that he was paid the said amount. Learned counsel further cited UWAZURIKE Vs. A.G., FEDERATION [2013] 3-4 MJSC (Pt. II) Pg. 174 at 198, Para. D; UNIVERSITY OF ILORIN Vs. ABEGUNDE [2015] 3 NWLR (Pt. 1447) Pg. 421 at 455, Paras. E ? F and F.K. CONSTRUCTION LTD Vs. NDIC [2013] 13 NWLR (Pt. 1371) Pg. 390 at 421-422 to reiterate that the Judgment on the Counter-claim is perverse. Learned counsel further submitted that the error of referring to the Counter-claim as against the ‘1st – 4th Defendants’ is not a mere slip but shows that the trial judge failed to appreciate the thrust of the Counter-claim.
Further in the Reply Brief, learned counsel for the Cross-Appellant argued that Mr. Abdulkadir Lawal as an agent needs not be a member or Director of the 1st Cross-Respondent’s Bank and that from all its conduct, the 1st Cross-Respondent is estopped from denying the authority of Mr. Abdulkadir Lawal to bind it in respect of Exhibit DW3 (D). Counsel referred to ROYAL BRITISH BANK Vs. TURQUAND (1856) 6 E. & B, 327; METALIMPEX Vs. A.G. LEVENTIS (NIG) LTD (1976) 2 SC 91 and INTERNATIONAL PAINT (W.A) LTD Vs. AKINOWO (1979) 1-3 CCHCJ 52 to submit that the Cross-Appellant is entitled to assume that all internal procedures of the 1st Cross-Respondent have been perfected as they ought to be and that Mr. Abdulkadir Lawal had the requisite authority. Learned counsel therefore urged this Court to grant the relief sought in this Cross-Appeal and discountenance all the contentions and submissions of the 1st Cross-Respondent.
RESOLUTION OF CROSS-APPEAL
The Cross-Appellant distilled two issues while the 1st Respondent distilled a sole issue; the summary of the Cross-Appellant?s case is that the trial Court, in determining the Counter-Claim of the Cross-Appellant completely closed its eyes to the documentary and oral evidence and relied on the extraneous fact that the Cross-Appellant once being on the Managerial Cadre in the Banking Sector ought to be conversant with the operations and conduct of mortgage transactions; that the Agreement dated 20th, August, 2010 ? Exhibit DW3 (D) did not give any consideration to the Cross-Appellant’s experience in the Banking Sector; but that the agreement was that the Cross-Appellant will be paid N2, 500,000.00 (Two Million, Five Hundred Thousand Naira) on a monthly basis as consideration for the use of his property as collateral for the facility N40, 000,000.00 (Forty Million Naira) granted to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court).
The Cross-Appellant further submitted that Exhibit DW3 (D) was a necessity for the continuation of the Deed of Tripartite Legal Mortgage; that making non-incorporation of Exhibit DW3 (D) which was made after the execution of the Deed of Tripartite Legal Mortgage in the said Deed of Tripartite Legal Mortgage a ground or basis for the refusal of the Counter-claim is perverse and insupportable in law; and that the findings that the 1st Cross-Respondent is not privy to Exhibit DW3 (D) is unsustainable considering the unchallenged and uncontroverted testimonies of the 1st Cross-Respondent?s witness that throughout the transaction, Mr. Abdulkadir Lawal, the Relationship Manager of the 1st Cross-Respondent acted for and on behalf of the 1st Cross-Respondent; and that having held Mr. Abdulkadir Lawal out as its agent, the 1st Cross-Respondent who had benefited from the actions and all the documents procured by the said Mr. Abdulkadir Lawal cannot now renege on Exhibit DW3 (D) because of its detriment.
The Cross-Appellant further submitted that the 1st Cross-Respondent is privy to and bound by Exhibit DW3 (D) which was executed on its behalf by Mr. Abdulkadir Lawal; that the 1st Cross-Respondent only tried to dissociate itself from Exhibit DW3 (D) but did not contend the fact that same was executed by Mr. Abdulkadir Lawal, its Relationship Manager; that having failed to defend the Counter-claim against them despite the fact that they were served with all the processes; the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) are deemed to have admitted all the claims against them; that Mr. Abdulkadir Lawal also acted for and on behalf of the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) and that the 1st Cross-Respondent was therefore liable to pay the N30, 000,000.00 (less N2, 500,000.00) claimed by the Appellant in the Counter-Claim. With respect to the second issue, the Cross-Appellant argued that the Cross-Appellant only gave his consent to the loan/facility of N40, 000,000.00 (Forty Million Naira) and that the subsequent facilities of N20, 000,000.00 (Twenty Million Naira) and N49, 500,000.00 (Forty Nine Million, Five Hundred Thousand Naira) which were granted after the execution of the Deed of Tripartite Legal Mortgage were without his knowledge; that the 1st Cross-Respondent?s Witness testified that the facility for N40, 000,000.00 (Forty Million Naira) had been repaid on the 14th October, 2010; and that having regard to the pleadings and evidence adduced before the lower Court, the Cross-Appellant satisfactorily proved his Counter-claim and entitlement to the reliefs sought therein.
The 1st Cross-Respondent on its part argued that the Cross-Appellant did not lead evidence to prove the facts pleaded that the 1st Cross-Respondent sent Mr. Abdulkadir Lawal to plead with him that the transaction was genuine and that he should use his property to secure the facilities granted to O. C. SUNNIK ENTERPRISES LTD; that no evidence was proffered to prove the power of Mr. Abdulkadir Lawal to execute Exhibit DW3 (D); that the arguments about the Cross-Appellant not stepping his foot into any banking hall of the 1st Cross-Respondent’s; that it was Mr. Abdulkadir Lawal who brought the Deed of Tripartite Legal Mortgage and persuaded him to sign; as well as the fact that Exhibit DW3 (D) is an addendum to the Deed of Tripartite Legal Mortgage are all arguments which were not pleaded nor established by evidence at the lower Court. It was further submitted by the 1st Cross-Respondent that the Cross-Appellant pleaded and gave evidence that he had been a Managing Director of a Bank and that he did not confirm Exhibit DW3 (D) with the 1st Cross-Respondent Bank; that the trial Judge properly evaluated the pleadings and evidence adduced by the parties and arrived at a sound and impeachable conclusion with respect to Exhibit DW3 (D).
The 1st Cross-Respondent further argued that the error of referring the Counter-claim as against the ‘1st – 4th Defendants’ is not substantial enough to warrant the Judgment been set aside; that the contention that the 1st Cross-Respondent be made liable to pay the N2, 500,000.00 monthly is contrary to the pleadings and evidence adduced at the trial; that the agreement to pay N2,500,000.00 monthly consideration to the Appellant was never made by the 1st Cross-Respondent; that there is nothing on record to prove the submissions that the 1st Cross-Respondent paid the Cross-Appellant N2, 800,000.00 (Two Million Eight Hundred Thousand Naira) pursuant to Exhibit DW3 (D); and that the 1st Cross-Respondent was neither a party to Exhibit DW3 (D) nor was it executed by any of the 1st Cross-Respondent’s Directors or Secretary nor was its company seal affixed thereto. The 1st Cross-Respondent further argued that Mr. Abdulkadir Lawal not being a Director or alter ego of the 1st Cross-Respondent had no capacity in law to sign any document to bind the 1st Cross-Respondent such as Exhibit DW3 (D) without the authority, knowledge and consent of the 1st Cross-Respondent; and that the Cross-Appellant failed to appreciate the provisions of Section 66 of the Companies and Allied Matters Act, LFN 2004 in contending that Mr. Abdulkadir Lawal acted as an agent of the 1st Cross-Respondent.
In reply, the Cross-Appellant argued that the 1st Cross-Respondent’s witness admitted that the N40, 000,000.00 (Forty Million Naira) had been paid back by the deposit of N100, 912, 782.00 into the account of the 1st Defendant (O. C. SUNNIK ENTERPRISES LTD) with the 1st Cross-Respondent; that facts admitted need no further proof; that the Cross-Appellant pleaded the facts that Mr. Abdulkadir Lawal made several efforts and gave assurances to convince the Cross-Appellant to agree to the use of his property as collateral to secure the loan/facility of N40, 000,000.00 (Forty Million Naira). It was contended that Exhibit DW3 (D) is an addendum to the Deed of Tripartite Legal Mortgage as both were executed by the same parties; that the fact that the Cross-Appellant did not confirm Exhibit DW3 (D) with any other officer of the 1st Cross-Respondent is of no consequence; that having failed to disprove the testimony of the Cross-Appellant that he was paid N2, 800,000.00 by the 1st Cross-Respondent through and Mr. Abdulkadir Lawal, the 1st Cross-Respondent cannot contend that the Cross-Appellant failed to prove that he was paid the said amount.
The Cross-Appellant submitted that the Judgment on the Counter-claim is perverse; that the cross-appeal succeeded in part considering that the second relief sought therein was for the 1st Cross-Respondent (Claimant) to release the title document of his property situate at G11, Victoria Garden City, Lekki back to the Cross-Appellant and the learned trial Court had made an order directing the 1st Cross-Respondent to return the said title document to the Cross-Appellant with immediate effect yet held that the Counter-claim failed in its entirety; and that the error of referring to the Counter-claim as against the ?1st ? 4th Defendants? is not a mere slip but shows that the trial judge failed to appreciate the thrust of the Counter-claim. Further in the Reply Brief, the Cross-Appellant argued that Mr. Abdulkadir Lawal as an agent need not be a member or Director of the 1st Cross-Respondent?s Bank and that from all its conduct, the 1st Cross-Respondent is estopped from denying the authority of Mr. Abdulkadir Lawal to bind it in respect of Exhibit DW3 (D); and that the Cross-Appellant is entitled to assume that all internal procedures of the 1st Cross-Respondent had been perfected as they ought to be and that Mr. Abdulkadir Lawal had the requisite authority.
From the totality of the submissions of the parties, it is my view that the sole issue which arises for determination is; ‘Whether the Judgment of the trial Court which refused the Cross-Appellant?s counter claim for N30, 000,000.00 (Thirty Million Naira) less N2, 800,000.00 (Two Million Eight Hundred Thousand Naira) monthly returns as consideration for the use of the Cross Appellant’s Property to secure the loan/facility granted by the 1st Cross-Respondent to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) is proper and justified in law in view of pleaded facts and evidence adduced at the trial.’
The findings of the trial Court with respect to the Counter-claim particularly touching on the Agreement dated 20th, August, 2010 – Exhibit DW3 (D) which is the ground upon which the Counter-claim is founded is at pages 628-629 of the Records of Appeal, wherein the learned trial Judge found as follows and I quote:
‘Now as to whether the 3rd Defendant is entitled to the sum of N30 Million Naira (less 2.8Million paid to the 3rd Defendant) being the Two Million Five Hundred Thousand Naira (N2,500,000.00) promised as monthly returns for the period of one year.
The Court has carefully considered the Exhibit DW3 (D) the executed agreement dated the 20th day of August, 2010 between the 2nd Defendant, the 3rd Defendant and Mr Abdul Kadir Lawal. The Claimant has stated that same was not with their authority and there is nothing on the face of same to suggest that there is any connection with the Claimant Company as same is neither signed by a Director/Secretary or indeed any one on managerial status, neither is the Company’s seal affixed to same.
It is therefore certain by the dates of execution that the ‘agreement’ was executed a month after the execution of the Tripartite Legal Mortgage. The doctrine of privity of contract is based on Consensus ad idem; it is only the contracting parties that know what their enforceable rights or obligation are and therefore a stranger should not be saddled with the responsibility
From the foregoing findings of the learned trial Judge, it is my view that the life wire of the Counter-claim is the Agreement dated 20th August, 2010 – Exhibit DW3 (D) which can be found at page 293 of the Records of Appeal.
I have carefully considered the said the Exhibit DW3 (D) and I cannot but just agree with the learned trial Judge that there is nothing in the said Agreement that can be traced to the 1st Cross Respondent. Rather, the agreement was clearly made between the Cross-Appellant; the 2nd Defendant at the lower Court (Mr. Sunday C. Ogbonna) in his capacity as the Managing Director of the 1st Defendant at the lower Court (O. C. SUNNIK ENTERPRISES LTD); and Mr. Abdulkadir Lawal. The introductory paragraph and paragraph 2 of the said agreement read as follows:
‘Based on the facility of N40,000,000.00 (Forty Million Naira granted to O.C. Sunnik Enterprises from ECOBANK Nigeria Plc and the mortgage security provided by Alh. Assan O. Arogundade, the following terms were agreed:
1. 1?
2. That the MD of O. C. Sunnik Enterprises Limited, Mr. Sunday C. Ogbonna pays the sum of N2,500,000.00 (Two Million Five Hundred Thousand Naira Only) on the 28th Monthly as returns to Alhaji Assan O. Arogundade for the duration of the facility.’
From the foregoing, the clear intention of the parties in that agreement was with respect to the loan facility of N40, 000,000.00 (Forty Million Naira) which was granted by the 1st Cross-Respondent to the 1st Defendant at the lower Court (O. C. SUNNIK ENTERPRISES LTD) for which the Cross-Appellant?s property was pledged as mortgage, the 2nd Defendant at the lower Court (Mr. Sunday C. Ogbonna) as the MD of the 1st Defendant (O. C. SUNNIK ENTERPRISES LTD) at the lower Court agreed to pay the sum of N2, 500,000.00 (Two Million, Five Hundred Thousand Naira monthly) as returns to the Cross-Appellant for the duration of the loan facility. In my view, there is nothing in the said agreement which even suggests that or can be construed as suggesting that in the event that Mr. Sunday C. Ogbonna as the MD O. C. SUNNIK ENTERPRISES LTD fails to pay the sum of N2, 500,000.00 (Two Million, Five Hundred Thousand Naira monthly returns as agreed to the Cross-Appellant; then Mr. Abdulkadir Lawal shall become liable to pay the said sum of N2, 500,000.00 (Two Million, Five Hundred Thousand Naira monthly).
With respect to the document at page 295 of the Records which reveals that on the 21st of July, 2010 (about a month before the execution of the Agreement dated 20th, August, 2010 – Exhibit DW3 (D)); Mr. Abdulkadir Lawal in a letter stood as Guarantor for the 1st Defendant at the lower Court (O. C. SUNNIK ENTERPRISES LTD) and therein promised to: ?ensure the original documents are returned upon request within a week but will only be delayed if we have supplied products and payments are expected which will not be more than 3 weeks?. Mr. Abdulkadir Lawal further pledged that he will: ?ensure the monthly returns are remitted at the agreed date until the facility is terminated?. I am of the view that while the foregoing promises may be construed as a personal guarantee by Mr. Abdulkadir Lawal, to ensure the payment sum of N2, 500,000.00 (Two Million, Five Hundred Thousand Naira monthly) which was later agreed in Exhibit DW3 (D); it cannot be taken as the act or promise made by a servant within the scope of his employment. The 1st Cross-Respondent who was giving out loan cannot be logically expected to be promising to pay the Cross-Appellant for the use of his property as security for the loan granted by the 1st Cross-Respondent to O. C. SUNNIK ENTERPRISES LTD (1st Defendant at the lower Court) which the Cross-Appellant secured, believing so will be totally illogical and with all due respect senseless.
In IYERE Vs. BENDEL FEEDS AND FLOUR MILL LTD [2008] 18 NWLR (1119) 300; (2008) LPELR-1578 (SC) Pg. 31, Paras. A – G, the Supreme Court per MUHAMMAD, JSC held as follows and I quote:
‘The general disposition of the law is that an employer is liable for the wrongful acts of his employee authorised by him or for wrongful modes of doing authorised acts if the act is one which, if lawful, would have fallen within the scope of the employee’s employment, as being reasonably necessary for the discharge of his duties or the preservation of the employer’s interests or property, or otherwise incidental to the purposes of his employment, the employer must accept responsibility in as much as he has authorised the employee to do that particular class of act and is therefore precluded from denying the employee’s authority to do the act complained of. If on the other hand, the act is one which, even if lawful, would not have fallen within the scope of the employee’s employment: the employer is not bound unless the act is capable of being ratified and is infact ratified by him…’
(Underlined for emphasis)
In the light of the foregoing and the facts of the instant case; I am of the view that the lower Court was right in its conclusion that the 1st Cross Respondent is not bound by the terms of the Agreement dated 20th, August, 2010 – Exhibit DW3 (D). The 1st Cross-Respondent cannot be logically expected to have authorised or ratified an agreement to pay a monthly sum for the use of a property which was to be used as security for the loan that the 1st Cross-Respondent was granting. Mr. Abdulkadir Lawal’s action of guaranteeing to ‘ensure the monthly returns are remitted at the agreed date until the facility is terminated? and also executing the Agreement dated 20th, August, 2010 – Exhibit DW3 (D) in my opinion, do not fall within the scope of his employment; nor was it reasonably necessary for the discharge of his duties or the preservation of the 1st Cross-Respondent’s interests or property, or otherwise incidental to the purpose of his employment. See: IYERE Vs. BENDEL FEEDS AND FLOUR MILL LTD (Supra).
The Cross-Appellant raised storm from the findings of the lower Court that ‘being a person who had been on managerial cadre in the Banking Sector and therefore conversant with the operations and conduct of mortgage transactions? the Cross-Appellant cannot input the agreement into the mortgage transaction. However, the Cross-Appellant at paragraph 4 of page 273 of the Records of Appeal admitted the fact that he was the former Managing Director of a bank and at page 575 of the Records of Appeal gave evidence of these facts under cross-examination; therefore, the lower Court was in order in its reasoning. The lower Court did not err in referring to him as ‘a person who had been on managerial cadre in the Banking Sector and therefore conversant with the operations and conduct of mortgage transactions, since he pleaded these facts and gave evidence in support of same.
The Cross-Appellant further argued that the lower Court failed to appreciate the Counter-Claim on the ground that in concluding that the Counter-Claim failed, the learned trial Judge referred to the Counter-Claim as being against the ‘1st – 4th Defendant’; with respect to this line of argument, the Cross-Appellants’ Counter-Claim is contained at pages 289 – 281 of the Records of Appeal and at page 280 particularly, the Cross-Appellant’s Counter-Claim for the sum of N30, 000,000.00 (Thirty Million Naira) less N2, 800,000.00 (Two Million Eight Hundred Thousand Naira) Naira was clearly not against the 1st Cross-Respondent but against the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna). Therefore, the reference of the trial Judge to the Counter-Claim as being against the ‘1st – 4th Defendants’ is in my opinion at best a mere slip which has no effect on the reasoning of the trial Judge and this Court will not rely on a mere slip as a ground for interference in the Judgment of the lower Court. See: OSAFILE & ANOR Vs. ODI & ANOR [1990] 2 NWLR (Pt. 137) 130; (1990) LPELR-2783 (SC) Pg. 28, Paras. C – E; ONYEMAIZU Vs. OJIAKO [2010] 4 NWLR (Pt. 1185) 504; (2010) LPELR-2738 (SC) Pg. 20-21, Paras. G – E and MOBIL PRODUCING (NIG) UNLTD Vs. JOHNSON & ORS (2018) LPELR-44359 (SC) Pg. 42, Paras. A – E.
The Cross-Appellant’s counsel also argued that the judgment on the Counter-claim is perverse on the ground that the Cross-Appeal succeeded in part considering that the second relief sought therein was for the 1st Cross-Respondent (Claimant) to release the title document of his property situate at G11, Victoria Garden City, Lekki back to the Cross-Appellant and the learned trial Court had made an order directing the 1st Cross-Respondent to return the said title document to the Cross-Appellant with immediate effect yet held that the Counter-claim failed in its entirety. This contention by the learned Counsel for the Cross-Appellant is in my opinion bereft of good reasoning and appreciation of the Cross-Appellant’s case. I have stated earlier on while considering the substantive appeal that it is not sufficient to merely allege that a finding is wrong and perverse, it must be shown to the Court how the trial Court erred. See: KAYDEE VENTURES LTD Vs. THE HON. MINISTER OF F.C.T & ORS [2010] 7 NWLR (Pt. 1192) 171; (2010) LPELR-1681 (SC) Pg. 41-42, Paras. E – C; DOGARI Vs. WAZIRI & ANOR (2016) LPELR-40320 (CA) Pg. 12-14, Paras. F – A; MR. BABATUNDE HARDING & ANOR Vs. THE ADMINISTARATOR GENERAL AND PUBLIC TRUSTEE OF LAGOS STATE & ANOR (2016) LPELR-40990 (CA) Pg. 25-26, Paras. E – C and OLUDE Vs. STATE (2018) LPELR-44070 (SC) Pg. 16-17, Paras. E – D.
The contention of the Cross-Appellant at the lower Court and before this Court as 1st Respondent was that he was entitled to the release of the title document of his property situate at G11, Victoria Garden City, Lekki; now, having held in the judgment with respect to the main claim that the 1st Respondent (Cross Appellant) as 3rd Defendant is entitled to the release of the document to the said property situate at G11, Victoria Garden City, Lekki, the same issue as contained under the Counter-Claim has therefore become spent and otiose and will amount to a waste of judicial time to be considered by the lower Court because it has become merely academic. It is trite that it is never the business of the Court to dissipate energy on issues which have no real relevance or effect. See ODOM & ORS Vs. PDP & ORS (2015) LPELR-24351 (SC) Pg. 56, Paras. F ? G where the Supreme Court per OGUNBIYI, JSC held that:
‘When a particular point is said to be academic, it principally means that it has no real relevance or effect. In other words, the act has been spent and is no longer of any benefit or value and it is therefore not worth spending precious time or dissipating energy thereon.’
In my humble view the only issue left to be determined by the learned trial Judge with respect to the Counter-claim was the issue of payment of the sum of N30, 000,000.00 (Thirty Million Naira) less N2, 800,000.00 (Two Million Eight Hundred Thousand Naira) Naira as contained in the Agreement dated 20th, August, 2010 – Exhibit DW3 (D) which was clearly made between the Cross-Appellant; the 2nd Defendant at the lower Court (Mr. Sunday C. Ogbonna) in his capacity as the Managing Director of the 1st Defendant at the lower Court (O. C. SUNNIK ENTERPRISES LTD); and Mr. Abdulkadir Lawal. And, as I pointed out, the Cross-Appellants Counter-Claim with respect to the said sum was clearly against the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) and not against the 1st Cross-Respondent. See page 280 of the Records of Appeal. Therefore, since the only claim in the Counter-Claim against the 1st Cross-Respondent has already been determined in favour of the Cross-Appellant by the trial Court’s order directing the release of the title document of his property situate at G11, Victoria Garden City, Lekki, the lower Court was therefore right in holding that the Counter-Claim failed with respect to the Counter-Claim against the 1st Cross-Respondent.
However, having found that the Agreement dated 20th, August, 2010 – Exhibit DW3 (D) was made and executed by the 2nd Defendant at the lower Court (Mr. Sunday C. Ogbonna); the Cross-Appellant and Mr. Abdulkadir Lawal; the learned trial Judge ought to have granted the other claim in the Counter-Claim which is against the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) for the payment of the sum of N30, 000,000.00 (Thirty Million Naira) less N2, 800,000.00 (Two Million Eight Hundred Thousand Naira) and clearly not against the 1st Cross-Respondent. Therefore, in the circumstance, having failed to defend the case despite having been served, as found by the learned trial Judge at page 606 of the Records of Appeal; the learned trial Judge ought to have allowed and granted the Counter-Claim against the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) since it was apparent from the Agreement dated 20th, August, 2010 – Exhibit DW3 (D) that they were the ones who has obligation under the agreement to pay the Cross-Appellant the monthly sum of sum of N2, 500,000.00 (Two Million, Five Hundred Thousand Naira) for the duration of the N40, 000,000.00 which culminated and accumulated in the sum of N30, 000,000.00 (Thirty Million Naira) less N2, 800,000.00 (Two Million Eight Hundred Thousand Naira) as Counter-Claimed by the Cross-Appellant.
In the circumstance therefore, the lower Court erred only to the extent of holding that the Cross-Appellant failed to satisfy it that he is entitled to Counter-Claim against the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna). Therefore, the only issue in this cross-appeal succeeds only in part. In conclusion therefore, the decision of the lower Court delivered by OGALA, J. on the 28th day of May, 2015 in Suit No: LD/1484/2012 particularly with respect to the Cross-Appellant’s Counter-claim as contained at pages 628 – 629 of the Records of Appeal is hereby affirmed by me only to the extent that the 1st Cross-Respondent is not bound by the Agreement dated 20th, August, 2010 – Exhibit DW3 (D); while the decision that the counter-claim failed as against the 1st and 2nd Defendants at the lower Court (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) is hereby set aside. Consequently, I hereby hold that by virtue of paragraph 2 of the Agreement dated 20th, August, 2010 – Exhibit DW3 (D), the Counter-Claim against the 1st and 2nd Defendants (O. C. SUNNIK ENTERPRISES LTD and Mr. Sunday C. Ogbonna) at the lower Court succeeds. This Cross appeal therefore succeeds in part.
Parties in this appeal shall bear their respective costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, TIJJANI ABUBAKAR, JCA in this appeal.
I agree that the Appellant has failed to establish that the finding of the lower court is perverse and resulted in a miscarriage of justice.
The appeal is therefore resolved against the Appellant and the appeal is accordingly dismissed for lacking in merit.
The decision of the lower Court is accordingly affirmed.
I am also in agreement with the reasoning and conclusion of my learned brother on the cross appeal herein. The cross appeal therefore succeeds in part.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the advantage of reading before now the lead judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA
I agree.
Appearances:
F.B. Odesanya for the Appellant/1st Cross RespondentFor Appellant(s)
For Respondent(s)
