STORMBERG ENGINEERING LIMITED & ORS v. ASSETS MANAGEMENT CORPORATION OF NIGERIA (2019)

STORMBERG ENGINEERING LIMITED & ORS v. ASSETS MANAGEMENT CORPORATION OF NIGERIA

(2019)LCN/12997(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/L/362/2017

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

1. STORMBERG ENGINEERING LIMITED
2. DOLAPO ATINMO
3. JOSEPH ADENIYI Appellant(s)

AND

ASSETS MANAGEMENT CORPORATION OF NIGERIA Respondent(s)

RATIO

WHETHER OR NOT A GROUND OF APPEAL CAN BE USED TO FORMULATE MORE THAN ONE ISSUE FOR DETERMINATION

The first of such elementary principle is that a ground of an appeal cannot be used to formulate more than one (1) issue for determination in an appeal whereas an issue can be distilled from more than one (1) ground of the appeal. Put another way, it is permissible to distill a single issue for determination from a number of grounds of an appeal while it is not permissible to use a single ground of an appeal to distill more than one (1) issue/s for determination in the appeal.
In the case of Amodu v. Commandant, Police College, Maiduguri (2009) 15 NWLR (1163) 75 (SC) it was held that:-
?It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. In the instant case, the learned counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent.?
See also Kotun v. Olasewere (2010) 1 NWLR (1175) 49, Agbetoba v. Lagos State Ex Council (1991) 4 NWLR 4 NWLR (188) 664, Osazuwa v. Edo State CSC (1999) 4 NWLR (597) 155 @ 161, Okafor v. Ejiogu (2011) LPELR-3923 (CA), Nwaigwe v. Okere (2008) ALL FWLR (431) 843, Oseni v. Bajulu (2010) ALL FWLR (511) 813, Afribank Nigeria Plc v. Yelwa (2011) ALL FWLR (585) 296, Magit v. University of Agric, Makurdi (2005) 12 SC (Pt. 1) 122,Eke v. Ogbonda (2006) 18 NWLR (1012) 506, Okwuagbala v. Ikwueme (2010) 19 NWLR (1226) 54, Uwazurike v. Nwachukwu (2012) LPELR-19659-(SC). PER GARBA, J.C.A.

WHETHER R NOT A COUNSEL CAN COMMIT HIS CLIENT

The law is also well settled that a Counsel can in the course of the performance of his professional duties commit his client either by way of a specific undertaking or by clear admission. See the cases of CAPPA & D?ALBERTO LTD v. AKINTILO (2003) 9 NWLR (PT. 824) 49 SC; TAGOE v. MANTSE OF AKUMAJAY (1946) 12 WACA 31 and OKAI II v. AYIKAI II (1946) 12 WACA (supra). PER GARBA, J.C.A.

WHETHER OR NOT A PARTY CAN FORMULATE MORE ISSUES THAN THE NUMBER OF GROUNDS OF AN APPEAL

The next elementary principle, which is an offshoot of the first, is that a party cannot formulate more issues than the number of the grounds of an appeal since each issue is supposed to be distilled from one or more of the grounds of the appeal. Formulation of more issues in number than the grounds of an appeal is what has become known as proliferation of issues which is not only frown at but, deprecated by the appellate Courts. See Kalu v. Ohuabunwa (2004) 7 NWLR (871) 1, Omuvwie v. Pamol Nigeria Limited (2002) 2 NWLR (752) 687, Omoyinmi v. Ogunsiji (2008) 3 NWLR (1075) 471, Fardoun v. MBC International Bank Limited (2006) ALL FWLR (297) 1130, Okwuagbala v. Ikwueme (supra), Okonobor v. D.E. & S. Transport Company Limited (2010) 17 NWLR (1221) 181, Unilorin v. Oluwadare (2003) 3 NWLR (808), Sogbesan v. Ogunbiyi (2006) 4 NWLR (969) 19, Nwankwo v. Yar’Adua (2010) 12 NWLR (1209) 578). In this appeal, again as indicated at paragraph 2.8 on page 3 of the Appellant?s brief and stated above, there are four (4) grounds of appeal contained on the Notice of Appeal filed on 10th March, 2017, but as seen, six (6) issues are formulated for decision by the Court in the Appellant?s brief, more in number, than the grounds of the appeal. PER GARBA, J.C.A.

WHETHER OR NOT PARTIES ARE ENTITLED TO SETTLE OR COMPROMISE ALL ISSUES FOR DISPUTE BETWEEN THEM ON THE TERM AND CONDITION THEY AGREED ON

The principle of law in the case of Galadanchi v. Abdulmalik (supra) referred by the High Court is simply that parties are entitled to settle or compromise all issues of dispute between them on any term and condition they agree on and that such agreement by way of amicable settlement out of Court supercedes the action altogether which the Court would no longer possess the jurisdiction to adjudicate over. The principle is apposite and applies in the case before the High Court in which parties have undeniably, settled the subject of their case by the terms and conditions embodied in the terms of settlement freely and voluntarily agreed to and executed by them which were filed in Court.
In the case of Woluchem v. Wokoma (1974) 9 NSCC, 181, Ibekwe, JSC had stated that:- The rule is that actions may be settled by consent during the trial. Usually, such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the Court, when the Court moves and takes action as agreed upon by the parties, it becomes a consent judgement. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The first Appellant was granted a loan facility guaranteed by the 2nd Appellant by Platinum Habib Bank, Plc (later Keystone Bank Limited) taken over by the Respondent who sued the Appellants before the Federal High Court, Lagos (High Court) in Suit No. FHC/L/CS/893/12 for the recovery of outstanding debt from the facility. In the course of the matter, parties opted to and negotiated to settle it amicably out of Court and they eventually agreed on terms of the settlement which were executed by the 1st and 2nd Appellants in October, 2013. The terms of settlement were filed before the High Court on 21st January, 2014 by the Respondent, who applied for judgement to be entered in the sum admitted by the Appellants in the terms of settlement, vide the motion filed on 12th June, 2014.

?On its part, the 1st Appellant filed a motion on the 24th June, 2014 to dismiss the Respondent?s action in limine on, primarily, ground of illegality. The parties filed counter affidavits to oppose the motion of the other and the two motions by them were heard together by the High Court which in

a Ruling delivered on 25th March, 2015, entered judgement in favour of the Respondent in the sum admitted by the 1st and 2nd Appellants in the terms of settlement. The motion filed by the 1st Appellant for the dismissal of the action, was dismissed.

?This appeal, premised on four (4) grounds contained on the Notice of Appeal dated and filed on the 10th March, 2017, pursuant to the leave of the Court granted on the 2nd March, 2017, is against the Ruling and in the Appellant?s brief filed on the 29th June, 2017, deemed on 3rd July, 2017, six (6) issues are set out for determination in the appeal. Though prolix, they are as follows: –
(i)Was the Lower Court right when it sustained the objection of the Respondent that paragraphs 9-35 of the Appellants’ Affidavit in Support of Motion on Notice to Dismiss Action and Suit No: FHC/CS/L/893/2012, in LIMINE, and paragraphs 4-11 of Further Affidavit in Reply to Counter- Affidavit of Respondent against 1st Appellant’s Motion on Notice dated 24th June, 2014, that they violated Sections 115(1)-(4) of the Evidence Act 2011. (Ground 1 of the Notice of Appeal).
(ii)Whether the refusal of Lower Trial Court

to Evaluate Affidavit Evidence and Exhibits annexed to paragraphs 10 (Exhibit “IA6”), 12 (Exhibits “IA7 and IA8”), 14 (Exhibit “lA9”), 19 (Exhibit “IA11”), 19b (Exhibit “IA12”), 24 (Exhibit “IA13”), 25 (Exhibits “IA14 and IA15′), 26 (Exhibit “IA16”), 27 (Exhibit “IA17”), 29 (Exhibit “IA18”), 30 (Exhibit “IA19”), in the absence of any denial of fraud, illegal excess interest charges in violation of Sections 3.2.4g of Central Bank Monetary, Credit, Foreign Trade and Exchange Policy Circular o. 37 of 2nd January, 2004 and Sections 2.7, 2.10, 2.12, 2.13 of Central Bank of Nigeria Guide to Bank Charges 2004 and Sections 60(1), (2) & (3) and 64 of Banks and other Financial Institutions Act Cap B3 Laws of the Federation of Nigeria, 2004, by the Respondent is incorrect, and if the answer to the above is in the affirmative, whether such refusal has not amount to Misdirection of Law and Occasioned a Miscarriage of Justice on the Appellant (Grounds 1 and 2 of the Notice of Appeal).
(iii) Whether the Learned Trial Judge said Ruling that the issue of Preliminary Objection of Appellants to the Respondent’s Claim that is fraught with illegality fraud and illegal

excess interest charges contrary to Sections 3.2.4g of Central Bank Monetary, Credit, Foreign Trade and Exchange Policy Circular o. 37 of 2nd January, 2004 and Sections 2.7, 2.10, 2.12, 2.13 of Central Bank of Nigeria Guide to Bank Charges 2004 and Sections 60(1), (2) & (3) and 64 of Banks and other Financial Institutions Act Cap B3 Laws of the Federation of Nigeria, 2004, is an issue to be decided at the Trial Stage and not Interlocutory Application and subsequently Ruled contrarily on the Preliminary Objection of the Appellant that it has Jurisdiction without evaluation of facts and exhibits in issue No. 2 above is incorrect and if the answer is in the affirmative, whether the said Ruling is a Misdirection of Law and amount to denial of Fair Hearing to the Appellant. (Ground 2 of the Notice of Appeal).
(iv)Whether the provision of Section 53 of Assets Management Act of Nigeria 2010, can clothe the Lower Trial Court Jurisdiction to enforce the Respondent’s Claim in Suit No: FHC/CS/L/893/2012, that is fraught with illegality, fraud, and excess interest charged on the loan transaction, hence caught by the Maxim Exturpi Causa Non Ortur Actio (Ground 2 of the Notice of Appeal).

(v)Whether the Learned Trial Judge could enter Judgment on Admission for the Respondent for the sum of Two Hundred and Fifty Million Naira (N250,000,000:00k), over and above the amount claimed by the Respondent in its Writ of Summon filed on the 1st August, 2012 against the Appellant predicated on non-categorical, equivocal and qualified Letter of Offer of Amicable Settlement of the Appellants’ Solicitors dated 6th February, 2013, made in the course of negotiation of Amicable Settlement (Ground 3 of the Notice of Appeal) Afortiori, whether the Resilement from Amicable Settlement Offer, by the Letter of the Appellants’ Solicitors dated 14th April, 2014, have effect of Terminating the offer and Settlement entered into by the Appellant with the Respondent before and never adopted at the Lower Trial Court and not entered as Consent Judgment (Grounds 3 and 4 of the Notice of Appeal).
(vi)Whether the Learned Trial Judge was in error of Law when he relied heavily on the Case of GALADANCHI vs. ABDULMALIQ & ANOR (2015) 1 TWLR (PT1446), 376 at 409, in granting the Respondent Motion on Notice for Judgment on Admission against

the Appellant Claiming that it was on all force with Suit No: FHC/CS/IL/893/2012, instant, when the facts and issues involved the Case was clearly opposite or different from those involved in the instant case before him (Ground 4 of the Notice of Appeal).

In addition to the indication of the grounds from which these issues were formulated as shown above, at paragraph 4.0 on pages 5 of the Appellant?s brief, it is stated that: –
?Issues 1, 2 and 3 are distilled from Grounds 1 and 2, while issues 4, 5 and 6 are decoded from Grounds 2, 4, 5 and 6 of the Notice of Appeal.?

As can easily be observed, the learned Counsel for the Appellant, in the formulation of the above issues, appears not to be aware of or deliberately ignored some very elementary established principles of law in the practice and procedure of brief writing in the Nigerian appellate Courts. The first of such elementary principle is that a ground of an appeal cannot be used to formulate more than one (1) issue for determination in an appeal whereas an issue can be distilled from more than one (1) ground of the appeal. Put another way, it is permissible to distill a

single issue for determination from a number of grounds of an appeal while it is not permissible to use a single ground of an appeal to distill more than one (1) issue/s for determination in the appeal.
In the case of Amodu v. Commandant, Police College, Maiduguri (2009) 15 NWLR (1163) 75 (SC) it was held that:-
?It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. In the instant case, the learned counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent.?
See also Kotun v. Olasewere (2010) 1 NWLR (1175) 49, Agbetoba v. Lagos State Ex Council (1991) 4 NWLR 4 NWLR (188) 664, Osazuwa v. Edo State CSC (1999) 4 NWLR (597) 155 @ 161, Okafor v. Ejiogu (2011) LPELR-3923 (CA), Nwaigwe v. Okere (2008) ALL FWLR (431) 843, Oseni v. Bajulu (2010) ALL FWLR (511) 813, Afribank Nigeria Plc v. Yelwa (2011) ALL FWLR (585) 296, Magit v. University

of Agric, Makurdi (2005) 12 SC (Pt. 1) 122,Eke v. Ogbonda (2006) 18 NWLR (1012) 506, Okwuagbala v. Ikwueme (2010) 19 NWLR (1226) 54, Uwazurike v. Nwachukwu (2012) LPELR-19659-(SC).
As indicated in the issues formulated in the Appellant?s brief, ground 2 is used to formulate issues ii, iii and iv while ground 4 is used to formulate isses v and vi, thereby formulating more than one (1) issue from each of the grounds.
The next elementary principle, which is an offshoot of the first, is that a party cannot formulate more issues than the number of the grounds of an appeal since each issue is supposed to be distilled from one or more of the grounds of the appeal. Formulation of more issues in number than the grounds of an appeal is what has become known as proliferation of issues which is not only frown at but, deprecated by the appellate Courts. See Kalu v. Ohuabunwa (2004) 7 NWLR (871) 1, Omuvwie v. Pamol Nigeria Limited (2002) 2 NWLR (752) 687, Omoyinmi v. Ogunsiji (2008) 3 NWLR (1075) 471, Fardoun v. MBC International Bank Limited (2006) ALL FWLR (297) 1130, Okwuagbala v. Ikwueme (supra), Okonobor v. D.E. & S. Transport Company Limited (2010)

17 NWLR (1221) 181, Unilorin v. Oluwadare (2003) 3 NWLR (808), Sogbesan v. Ogunbiyi (2006) 4 NWLR (969) 19, Nwankwo v. Yar’Adua (2010) 12 NWLR (1209) 578). In this appeal, again as indicated at paragraph 2.8 on page 3 of the Appellant?s brief and stated above, there are four (4) grounds of appeal contained on the Notice of Appeal filed on 10th March, 2017, but as seen, six (6) issues are formulated for decision by the Court in the Appellant?s brief, more in number, than the grounds of the appeal.

Issues ?4, 5 and 6 are decoded from Grounds 2, 4, 5 and 6 of the Notice of Appeal?, according to Counsel for the Appellant. It is evident from the Notice of Appeal that there are no grounds 5 and 6 and so the issues 4, 5 and 6 which are indicated to have been formulated from grounds 2, 4, 5 and 6 are in addition, said to have been formulated from the non-existent grounds 5 and 6. The law is common knowledge in the appellate Courts that issues for determination can only be distilled and formulated from valid and competent grounds of appeal contained on the Notice of Appeal and where issues are not derived from the grounds on the Notice of

Appeal, they become irrelevant and incompetent for consideration in an appeal. See: Chinweze v. Masi (1989) 1 NWLR (1997) 254, Adelaja v. Fanoiki (1990) 2 NWLR (131) 137) @ 148, Momodu v. Momoh (1991) 1 NWLR (169) 608, Ayisa v. Akanji (1995) 7 NWLR (406) 129, Nwankwo v. Yar?Adua (2010) 12 NWLR (209) 518, Akpan v. Bob (2010) 17 NWLR (1223) 421, Uzoagba v. PDP (2012) 11 MJSC, 75.

Added to the above problems, is the fact that the proliferated issues are argued together; in two (2) batches of issues 1, 2 and 3 and then issues 4, 5 and 6 thereby obfuscating the real complaint against the Ruling of the High Court as may be discernable from the four (4) grounds on the Notice of Appeal.

In the Respondent?s brief filed on the 23rd October, 2017, deemed on 17th January, 2019 two (2) issues are said to call for determination in the appeal as follows:-
?WHETHER THE ISSUE OF ILLEGALITY OF CONTRACT IS SUCH THAT COULD BE EFFECTIVELY DETERMINED AT A PRELIMINARY STAGE AND WITHOUT A FULL TRIAL GROUNDS ONE AND TWO OF THE NOTICE OF APPEAL.
WHETHER THE LOWER COURT WAS WRONG IN GIVING JUDGEMENT ON ADMISSION ON THE BASIS OF THE APPELLANTS?

LETTER DATED 6TH FEBRUARY, 2013 AND THE TERMS OF SETTLEMENT DATED 21ST JANUARY, 2014 DULY EXECUTED BY THE PARTIES AND THEIR RESPECTIVE COUNSEL GROUNDS THREE AND FOUR OF THE NOTICE OF APPEAL.?

Looking at the grounds contained on the Notice of Appeal calmly, the germaine issue which requires decision by the Court is ?whether the High Court was right in granting the Respondent?s motion for judgement on admission and dismissing the Appellant?s motion for dismissal of the Respondent?s action in limine.?

On the authority of Onochie v. Odogwu (2006) 6 NWLR (975) 65, (2006) ALL FWLR (317) 544, Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163 @ 181, (sc) NDP v. INEC (2012) 12 MJSC (Pt. III) 67 and Governor, Ekiti State v. Olubunwo (2017) 3 NWLR (1551) 1 @ 23 (SC), I intend to determine the appeal on the basis of this sole issue which is derivable from all the grounds of the appeal.

Appellants? Arguments:
The submissions are to the effect that since the Appellants in their Statement of Defence and Counter Claim dated and filed on 28th November, 2012 had raised a preliminary objection to the Respondent?s

action on ground of illegality, their motion of 24th June, 2014 for the dismissal of the action should have been granted and that the High Court was wrong in law to have struck out the paragraphs 9-35 of the Appellants’ Counter Affidavit and paragraphs 4-11 of the Further Affidavit to the Respondents motion for judgement. Reference was made to Order 13, Rules 5 and 6 of the Federal High Court Rules, 2009 and the cases of Fabs Limited v. Ibiyeye (2008) 14 NWLR (375 @ 387, Inakoju v. Adeleke (2007) ALL FWLR (351) 3, among other cases, on the illegality of the transaction between the parties, and alleged fraudulent acts of and excess interests charges, etc by the Respondent and it is argued that the High Court erred to say that the issues is at best, a likely defence available to the Appellant at the action and not to be dealt with at the interlocutory stage.

According to Counsel, the issue was one of jurisdiction, which on the authority of Federal Governemnt of Nigeria v. Oshiomole (2004) 14 WRN, 110 @ 112, must be determined at the earliest opportunity when raised by parties or discovered by the Court. He also said that the hearing of the

Respondent’s motion for judgement on admission without considering the Appellants’ issue of illegality denied their right to fair hearing and occasioned miscarriage of justice, citing Shekete v. Nigeria Airforce (2008) 1 FWLR (401) 7561 @ 7564 and Ekpenetu v. Offegobi (2012) 46 WRN, 132 @ 138-40 on the consequence of the breach of the right to fair hearing. It is maintained that the High Court lacks jurisdiction to entertain the Respondent’s action on ground of illegality, even under Section 53 of the Respondent’s Act, relied on by it and Alao v. ACB, Limited (1988) LPELR SC 14/1995 (sic) was cited.

It is also the case of Counsel that there was no admission by the 1st and 2nd Appellants of the sum entered for the Respondent as the claim was based on illegality and that the Appellants had resiled from the terms of settlement filed before the High Court which, according to Counsel, is inadmissible under Section 26 of the Evidence Act, 2011, Fawehinmi v. NBA (1989) ANLR 274 and Star Paper Mill Limited v. Adetunji (2009) 4 NWLR (496) 9049 @ 9051-57. Learned Counsel distinguished the case of Galadanchi v. Abdulmalik (2015) 1 NWLR (1440)

376 @ 409 said to have been relied on by the High Court to grant the Respondent?s motion for judgement and in conclusion, the Court is urged to resolve the issues argued and allow the appeal in Appellants? favour.

Respondent?s Arguments:
It is submitted that the High Court was right to have struck out the paragraph of the Appellant?s Affidavit, since the deponent did not disclose her source of information unlike in the Inakoju v. Adeleke cited in the Appellant?s brief, and the case of Maja v. Samouris (2002) 7 NWLR (765) 78 @ 105-6 and Governor, Lagos State v. Ojukwu (1986) 1 NWLR (2018) 621 @ 641 were referred to. Learned Counsel said Order 13, Rules 5 and 6 of the Federal High Court Rules relate to pleadings to be determined at the substantive action and not at an interlocutory stage by way of a preliminary objection since it would require evidence to be adduced, thereby becoming a defence. Cases, including Adegoke v. Adesina (2001) 9 NWLR (718) 494 @ 505 and Adetayo v. Ademola (2010) 15 NWLR (1215) 169 @ 198, on the law that pleadings determine the jurisdiction of act over a case were cited and it is submitted further

that the Appellants by their preliminary objection are deemed to have admitted the facts contained in the Respondent?s Statement of Claim upon which the High Court was invited to dismiss the action, on the authority of Woherem v. Ehereuwa (2004) 13 NWLR (890) 398 @ 418-9. In addition, relying on Ekwunife v. Wayne W.A Limited (1989) 5 NWLR (122) 456, Onwucheka v. NDIC (2002) 5 NWLR (760) 371 and A.I.C. Limited v. NNPC (2005) 1 NWLR (937) 563, it is argued that where a contract or an agreement is not, ex facie, illegal and the question of illegality depends on surrounding circumstances, then the Court cannot determine the question of illegality unless same is pleaded and evidence is led. The case of Alao v. ACB Limited (supra) is said not to aid the Appellants and then citing Order 15 Rules 1 and 4 and Moshe She General Merchant Limited v. Nigeria Steel Products Limited (1987) 4 SC, 152, it is submitted that the High Court is empowered to enter judgement on admission which is also in line with Sections 20 and 169 of the Evidence Act, 2011. Counsel argued that the provision of Section 26 of the Evidence Act is not applicable to the admission made by the 1st

and 2nd Appellants as contained in the terms of settlement before the High Court from which nothing can be subtracted or added to on the authority of Larmie v. D.P.M.S. Limited (2005) 18 NWLR (958) 438) @ 459, among other cases. It is then contended, citing TMT Asia Limited v. Oceanbulk Shipping & Trading SA (2010) LPELR-17851 (UKSC), that the terms of settlement were duly executed by the parties, and so the High Court was right to have entered judgement on the admitted sum in the terms of settlement which the Appellants could not have resiled from by the letter dated 6th February, 2013. Folarin v. Idowu (2013) LPELR-22123 (CA) and Ezerioha v. Iheluro (2009) LPELR-4122 (CA) are cited for the law that parties are bound by the terms of settlement freely and voluntarily executed by them and the case of Galadanchi v. Abdulmalik was rightly relied on by the High Court in its Ruling since the terms of settlement were executed by the 1st and 2nd Appellants.

In conclusion, the Court is urged to resolve the issues argued and dismiss the appeal with substantial costs.

?In the Appellants? Reply brief filed on 10th January, 2019, deemed on 17th January,

2019, the cases of Josien Holdings Limited v. Lornamead Limited (1995) 1 NWLR (371) 254 and Sodipo v. Lemninkainem (1986) 1 NWLR (2015) 220 @ 231, inter alia, were cited for the submission that the deponent of the Appellants? Affidavits did not need to state her source of information since the facts are within her personal knowledge and so the High Court erred to have struck out the named paragraphs of the Affidavits.

Other arguments in the Appellants? Reply brief, which raised four (4) issues, are further arguments of the appeal as argued in the Appellants brief. I am constrained to state again, that the learned Counsel for the Appellants appears to be ignorant or at least not conversant with or to disregard the provision of Order 19, Rule 5(1) of the Court of Appeal Rule, 2016 and the firmly established principle on the purpose of a Reply brief in an appeal. Order 19, Rule 5(1) provides that: –
(1)The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent?s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent?s brief.?

Provisions impari materia with these provisions in the previous Court of Appeal Rules were pronounced upon in countless cases by the apex Court and this Court over the years for the law thereon to be trite by now. I would just refer to the pronouncements in two (2) of them and cite a few others. In Longe v. FBN, Plc (2010) 6 NWLR (1159) 1, the Supreme Court restated the established principle when it said: –
?A Reply brief is necessary and usually filed when an issue of law or argument raised in the respondent?s brief calls for a reply, where a Reply is necessary, it should be limited to answering new points arising from the Respondent?s brief. It is not proper to use a Reply brief to extend the scope of the appellant?s brief or raise new issue not dealt with in the respondent?s brief. It is not to afford an appellant another bite at the cherry.?
This Court in the case of Fayemi v. Oni (2010) 17 NWLR (1222) 326 put the position thus: –
?It is clear that the essence of a reply brief is to be limited to new points which are raised in the respondent?s brief. In

other words, it is not a forum to either engage in arguments at large or re-argue the appellant?s brief. It is also not a repair kit for an otherwise damaged brief but purely to answer to the new points raised.?
See also Ojo v. Okitipupa Oil Palm Plc (2001) 9 NWLR (719) 679 @ 693, Ogboru v. Ibori (2005) 13 NWLR (942) 391, Duzu v. Yunusa (2010) 10 NWLR (1201) 80, Oriwudiwe v. FRN (2006) 4 SC (Pt. II) 70, Mini Lodge Limited v. Ngei (2009) 18 NWLR (1173) 254, Cameroon Airlines v. Otutuizu (2011) 4 NWLR, 572 (2011) 203 MJSC (Pt. II), 56, Ikine v. Edjerode (2001) 12 SC (Pt. II) 94, Abdullahi v. Military Administration (2009) 15 NWLR (1165) 417, Osuji v. Ekeocha (2009) 16 NWLR (1166) 81.
Another salient principle deducible from the authorities on the purpose of an Appellant?s Reply brief is that it cannot be used to respond to every point made or canvassed in a Respondent?s brief which are not different in substance, with the points argued in the Appellant?s brief even if the issues argued in the said brief are not adopted by the Respondent. An Appellant?s Reply brief is strictly, as stated and restated by the Courts and

provided for under Order 19, Rule 5(1) of the Rules of the Court, to answer, respond or react to only new or fresh points arising from the Respondent?s brief and not every or all points argued or canvassed in the brief.

Resolution:
Beginning with the Appellant?s motion of 24th June, 2014 for the dismissal of the Respondent?s action in limine, it was brought pursuant to Order 16, Rules 2 and 3, 26, Rules 1 and 2 of the Federal High Court Rules, and prayed as follows: –
?AN ORDER of this Honourable Court dismissing this suit and action in LIMINE upon the grounds specified hereunder.
And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.?

The reliefs are predicated on the following grounds: –
?The suit is caught by Legal Doctrine ESTURPI CAUSA NON ORITUR ACTION. The letter offer of the Invoice Discounting Facility dated 6th March, 2008 and Restructuring Facility Letter dated 7th June, 2009 (being the foundation of claims of Plaintiff/Respondent in this suit) having been in breach of 3.2.4g of Central Bank Monetary, Credit, Foreign

Trade and Exchange Policy Circular No. 37 of 2nd January, 2004 and Sections 2.7, 2.10, 2.12, 2.13 of Central Bank of Nigeria Guide on Bank Charges 2004 and Sections 60(1), (2) & (3) and 64 of Banks and other Financial Institutions Act Cap B3 Laws of the Federation of Nigeria, 2004 make the entire transaction illegal hence unenforceable.
2. The entire transaction that form basis of this suit being illegal and fraudulent cannot be heard and determined by the Honourable Court hence the Honourable Court lacks jurisdiction competence and powers to hear entertain and determine this suit as presently constituted.
3. Interests of Justice will best be served by dismissing this suit in LIMINE with substantial cost for being abuse of Court process and total lack and want of requisite jurisdiction as well caught by ESTURPI CAUSA NON ORITUR ACTIO.?

?This motion; the reliefs and grounds of the reliefs, is a copy of the objection which was raised in the 1st and 2nd Appellants? Statement of Defence and Counter Claim dated 28th November, 2012 and the Affidavit in support of the motion is a replica of averments in the Statement of Defence and Counter

Claim. The motion was filed after and in reaction to the Respondent?s motion for judgement on admission which was filed on the 12th June, 2014 to which the 1st and 2nd Appellants also filed Counter Affidavit setting out the same facts on which the objection and motion are premised. In substance, both the objection incorporated in the Statement of Defence and Counter Claim and the motion of 24th June, 2014 challenged the jurisdiction of the High Court to adjudicate over the Respondent?s action on ground of alleged illegality of the transaction between 1st and 2nd Appellants and Keystone Bank over alleged arbitrary interest and other charges on the 1st Appellant?s account with the Bank, which formed the basis of the Respondent?s action.

In its Ruling on the objection/motion of 24th June, 2014, which was heard along with the Respondent?s motion for judgement, the High Court dealt with it as follows: –
?I have read the 1st Defendant/Applicants Affidavit including the aforesaid paragraphs of the Further and Better Affidavit and I observe that the depositions in the paragraphs to which objection has been raised are

neither facts nor information given to the deponent of the Affidavit Miss Badmus Aisha, by anybody.
Section 115(1)-(4) of the Evidence Act 2011 provides as follows: –
(1)Every affidavit used in the Court shall contain only a statement or fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2)An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3)When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4)When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.
It is not in doubt that the deponent of the said affidavits is only a litigation secretary and the depositions in the paragraphs of the Affidavits in support of Notice of

Preliminary Objection are matters of facts which are not within the deponent?s personal knowledge but which are derived from information received from another person. Contrary to the provision of Section 115(1) ? (4) of the Evidence Act, the deponent neither stated the name of her informant nor gave reasonable particulars respecting the informant, and the time, place and circumstances of the information deposed to in the said affidavits.?

I have read the Affidavit deposed to by one Miss Badmus Aisha, a litigation secretary in the chambers of the Counsel for the 1st Appellant on the 24th June, 2014 in support of the motion and without the need to set out the verbose avernments therein, I would say that the High Court is right that they are mostly arguments, legal conclusions and matters extraneous to the issue whether the High Court possesses the requisite jurisdiction to adjudicate over the Respondent?s action. Apparently too, the deponent did not depose to the facts from her personal knowledge, but based on information from another source which was not disclosed contrary to the provisions of Section 115 of the Evidence Act, 2011, (above).

In fact, paragraph 5 thereof is titled ?Objection? and what followed thereafter are legal arguments and conclusions.

For depositions in Affidavits to be valid for consideration by a Court as evidence, they must comply with the provisions of Section 115 of the Evidence Act. In the case of Ceda Stationaries Limited v. I.B.W.A. Limited (2000) 15 NWLR (610) 338 @ 349-50, it was held that: –
?It is incumbent on a person who deposes to his belief in a matter of fact, and whose belief is based on any source other his own personal knowledge, unequivocally must disclose the facts and circumstances forming the basis of his belief. Furthermore, when the belief is founded upon information received from another person, the name of his informant must be stated in the affidavit and must state reasonable particulars of such informant including the time, place and the circumstances of the information.?
See also Josien Holdings Limited v. Lornamead Limited (1995) 1 NWLR (571) 254 @ 265, Edu v. Commissioner For Agric, Water Resources & Rural Development (2000) 12 NWLR (681) 316 @ 333, Horn v. Richard (1963) ALLFWLR, 40

Bamaiyi v. State (2001) 4 SC (Pt. I) 18, (2001) 8 NWLR (715) 270, G.M. Aviation Services Limited v. Thahal (2004).
For failure to meet the requirements of Section 115 of the Evidence Act, the High Court rightly struck out the paragraphs in the Affidavit and further and better affidavit in support of the Appellant?s motion.

?On the merit of objection, the High Court dealt with it as follows: –
?Counsel for the 1st Defendant/Applicant admitted that the various illegality and fraud committed by the Plaintiff/Applicants debt in respect of Account No. 10026316155 from Keystone Bank Limited) violated the provisions of Central Bank of Nigeria Guide to Bank Charges 2004 and Section 60(1), (2) and(3) and 64 of Banks and Other Financial Institutions Act Cap B3, Laws of the Federation of Nigeria, 2004 and that the agreed rate of interest between 1st Defendant/Applicant and Keystone Bank Limited in the two Letters of Offer (Exhibits ?1A14 & IA15? were 17% and 22% per annum respectively, however without any negotiation and consensus with the 1st Defendant/Applicant, Keystone Bank Limited unilaterally reviewed upward illegal

interest ranging from 40% per annum to 37% per annum on the 1st Defendant/Applicant?s Account No. 10026316155 hereby committing fraud on the said account of the 1st Defendant/Applicant and that these acts of impunity and brazenness of banks deprives this Court of the competence to assume jurisdiction in the matter. The Plaintiff/Respondent has however argued replicando that the legality or otherwise of the Facility in question is an issue which can only be determined on its merit by this Court at the trial of the substantive suit and not at an interlocutory stage and that by virtue of the provision of Section 53 of the Assets Management Corporation Act of Nigeria, 2010 vesting exclusive jurisdiction on the Federal High Court over the subject matter of the instant suit, that this Court is well clothed with the requsite jurisdiction to hear and determined this matter.?
It then concluded that: –
?Having carefully gone through and reviewed the process filed by the Plaintiff in respect of the instant suit and the submissions of Counsel to the parties, I totally share the sentiments and views expressed by the Plaintiff/Respondent?s

learned Counsel that the grounds of the 1st Defendant/Applicant?s objection which are based on alleged illegality, fraud and/or excess interest rates charged on the account in issue are at best likely defences available to the 1st Defendant/Applicant at the substantive trial of the instant suit and not matters to be dealt with at this interlocutory stage. Additionally, the 1st Defendant/Applicant has not been able to establish that there is any feature in the instant suit depriving this Court of its requisite jurisdiction to adjudicate on same.?
Similarly, Section 53 of the Assets Management Corporation Act of Nigeria, 2010 provides thus: –
?The Chief Judge of the Federal High Court may designate any judge of the Federal High Court to hear matters for recovery of debts owed to the Corporation or an eligible financial institution and other matters arising from the provisions of this Act to the exclusion of other matters for such period as may be determined by the Chief Judge.?
The 1st Defendant/Applicant has not in any way controverted the fact that the instant suit is one involving the recovery of non-performing loans of

some eligble financial institutions bought over by the Assets Management Corporation of Nigeria (AMCON) in line with its core mandate thus bringing the suit within the exclusive jurisdiction of this Honourable Court.
In the result, the issue for determination is hereby resolved in favour of the Plaintiff/Respondent against the 1st Defendant/Applicant. Accordingly, I find and hold that this suit is properly constituted and that this Honourable Court has the requisite jurisdiction to hear and determine same and the 1st Defendant/Applicant?s preliminary objection challenging jurisdiction is hereby dismissed for want of merits in its entirety.?
I should say that the High Court rightly restated the established principle of law on the determination of an objection to the jurisdiction of a Court to adjudicate over a case brought before it. The High Court being a creature of the Constitution draws its jurisdiction from the Constitution and from other statutes, pursuant to the enabling provisions of the Constitution.
?In the present appeal, the learned Counsel for the Appellants has not challenged or even disputed the statutory jurisdiction of

the High Court over the subject matter or parties to the Respondent?s action and did not demonstrate in his arguments on the jurisdiction, that the action was not initiated by due process of the law or that there was/is any feature in the action that would prevent the High Court from exercising its statutory jurisdiction over the case of the Respondent. It may be observed, that the kernel and pith of the Appellants? argument are on alleged illegality of the transaction and alleged arbitrary charges in its Bank Account in respect of which Order 13, Rules 5 and 6 of the Federal High Court require particulars to be provided in pleadings by a party relying on same in a case.
?As stated by the High Court above, the issue or question of alleged illegality and arbitrary charges is of fact to be determined on evidence to be adduced at the trial of the Respondent?s action on the merit and not one which goes to the High Court?s jurisdiction to adjudicate over the case. The allegations of illegality of the transaction between the 1st Appellant and Keynote Bank and that of arbitrary charges of interest and other fees, all go to the defence of

the action rather than the competence of the action or jurisdiction of the High Court?s to adjudicate over it. Like I stated earlier, the 1st and 2nd Appellants have pleaded the facts upon which the allegations of illegality and arbitrary charged are predicated in their Statement of Defence and Counter-Claim and even filed Statements of Oath in support thereof. They only filed the motion of 24th June, 2014 after the Respondent filed the motion of 2nd June, 2014 for judgment on admission to which the 1st and 2nd Appellants filed Counter Affidavits narrating the same facts upon which their own objection and motion were based. The question of illegality and arbitrary charges of interest cannot be determined before the trial of the substantive action since it raises the same points/issues as the Appellants? defence to the action, which were joined by the parties. The law is that a Court should not make a determination and pronouncement at an interlocutory stage, on issues that are to be determined at the hearing of the substantive action. In other words, a Court should not prejudge issues at an interlocutory stage, which have been joined by the parties

and to be heard at the hearing of the substantive action. In Odutola v. Ladejobi (2006) ALLFWLR (322) 1394 @ 1435, the position was stated thus: -?Care should be taken when a Court is hearing an interlocutory application, to avoid making any pronouncement which may appear to prejudice the main issue in the proceedings relative to the interlocutory application.?
Again in Baide v. INEC (2012) 31 WRN 27 the law was restated that: –
?The law is well settled that a Court in considering and determining an interlocutory application, must be circumspect and not delve into determining any part of the substantive matter before it.?
In the above circumstances, the Appellant?s motion which sought to challenge the substance of the Respondent?s claim in defence of the action against them, was not one which raised a genuine issue of jurisdiction of the High Court over the action that the law allows to be raised at any stage of the proceedings in the case. In any case, the High Court is right that it is properly seized of the requisite statutory jurisdiction to entertain and adjudicate over the Respondent?s action

against the Appellant as demonstrated in its Ruling.

The Appellants? Counsel has failed to show any legally tenable reasons why this Court should interfere with the findings by the High Court on the motion filed on 24th June, 2014 for the dismissal of the Respondent?s action in limine.

Now, I go to the Respondent?s motion of 12th June, 2014 for judgement on admission. It was in the following terms: –
?AN ORDER of this Honourable Court entering judgment in the sum of N250,000,000.00 (Two Hundred and Fifty Million Naira only) in favour of the Plaintiff/Applicant with interest and cost based on the Defendants/Respondents Solicitor?s Letter dated 6th February 2013 and the Term Loan Restructure of the Plaintiff/Applicant dated 6th March 2013.
2. AN ORDER of this Honourable Court for an accelerated hearing of this matter.
AND FOR SUCH FURTHER or other order(s) as the Court may deem fit to make in the circumstances.
AND TAKE FURTHER NOTICE that the grounds for this application are;
(a)that the 1st Defendant took a loan of N544,360,942.50 (Five Hundred and Forty-Four Million, Three Hundred and Sixty

Thousand, Nine Hundred and Forty-Two Naira, Fifty Kobo Only from the Bank PHB (Now Keynote Bank), Intercontinental Bank (Now Access Bank), and Fidelity Bank.
(b) that the credit facility granted the Defendants/Applicants became due and payable on the 1st of January 2011, 1st of April 2011 and 1st of January 2012 respectively.
(c)that pursuant to the law establishing the Plaintiff/Applicant, the Applicant bought over the Loans granted to the Defendants/Respondents as Non-Performing Loans.
(d)that the Defendants/Respondents have admitted their indebtedness to the Plaintiff/Respondent and have through their Solicitors (Messrs Abdulrasaq Abdulrahman & Co.) written to the Plaintiff/Applicant that they are willing and ready to pay the sum of N250, 000,000.00 (Two Hundred and Fifty Million Naira Only) in full and final settlement of the entire credit facility granted the Defendants/Respondents. The said offer letter is dated 6th February 2013.
(e) that the Plaintiff/Applicant accepted the Defendants/Respondents offer of N250,000.000.00 for which an agreement was drawn and signed by both the Plaintiff/Applicant and the Chief Executive Officer

and the Secretary of the 1st Defendant/Respondent. The said Letter of Agreement is dated 6th of March 2013.
(f)that the Defendants/Respondents have by different ploy and antics refused to honour the agreement entered by them to the Plaintiff/Applicant because they have no defence whatsoever to this suit.?

?The motion was supported by a fifty-two (52) paragraphs affidavit which in brief, is to the effect that after the institution of the action before the High Court, the parties resolved to and eventually agreed after negotiations, to settle the dispute leading to the action, amicably out of Court. The parties agreed on and executed the terms of settlement by which the 1st Appellant admitted and agreed to pay the sum of Two Hundred and Fifty Million Naira (N250, 000,000.00) in full and final settlement of its indebtedness. The terms of settlement were signed by the 2nd Appellant for the 1st Appellant on 25th March, 2013 and filed before the High Court on 21st January, 2014. That the 2nd Appellant was the Chief Executive Officer (CEO) and alter ego of the 1st Respondent who applied for and was granted the loan facility in question and who

personally guaranteed the facility for the 2nd Appellant, and that the 1st and 3rd Appellants want to resile from the settlement reached between the parties.

A thirty-six (36) paragraphs Counter Affidavit deposed to on the 23rd of June, 2014 by the same Miss. Badmus Aisha, a Litigation Secretary in the Chambers of Counsel for the 1st Appellant, was filed in opposition to the motion. The facts in the Counter Affidavit are the same as in the Statement of Defence and Counter Claim on the allegations of illegality and arbitrary charges and also to the effect that the settlement was qualified and only executed by the Respondent after the death of the 2nd Appellant and so does not amount to an admission since the 1st Appellant has rescinded same before it was adopted in Court.

This was how the High Court dealt with and decided the motion: –
?I have carefully gone through the contents of the affidavit evidence of the parties and exhibits attached thereto particularly Paragraphs 23, 24 and 40 of the Plaintiff/Applicant?s Affidavit in support of the instant application as well as the Counter Affidavit of the 1st Defendant/Respondent and the

exhibits attached thereto, it is my considered view that parties indeed compromised their position as earlier covenanted by duly executing the Terms of Agreement dated and filed on the 21st day of January, 2014 as per ?Exhibit F? attached to the said Affidavit in support of the Plaintiff.
In the most recent case of the Court of Appeal on this issue which is on all fours with the facts of the instant case, that is the case of GALADANCHI v. ABDULMALIK & ANOR (2015) 1 NWLR (PT. 1440) 376 at 409, the Court held that:
?Parties are entitled to settle or compromise all or any of the question or dispute between them on any term and condition which they agree, even without the approval or sanction of the Court, or prior reference to the Court. Such an agreement or out of Court settlement between the parties supersedes the original cause of action altogether and the Court has no further jurisdiction in respect of the original cause of action, which has been superseded.?
The law is also well settled that a Counsel can in the course of the performance of his professional duties commit his client either by way of a specific

undertaking or by clear admission. See the cases of CAPPA & D?ALBERTO LTD v. AKINTILO (2003) 9 NWLR (PT. 824) 49 SC; TAGOE v. MANTSE OF AKUMAJAY (1946) 12 WACA 31 and OKAI II v. AYIKAI II (1946) 12 WACA (supra). The 1st Defendant/Respondent?s learned on record by his letter dated the 6th day of February, 2013 in a direct, positive, clear and unequivocally terms admitted the Defendants? indebtedness to the Plaintiff to tune of the sum of N250,000.00.00 in full and final liquidation of the said indebtedness and even went further to give particulars of how the said outstanding indebted sum would be liquidated within a period of twenty (24) months starting from the 31st day of July, 2013. It is therefore the considered view of this Honourable Court that there is no reason why full and due probative weight should not be given to the admitted facts in the circumstances of this case. See the Supreme Court decision in SALAWU v. YUSUF (2007) 12 NWLR (PT. 1049) 797.
The volte face of the Defendants/Respondents and their Counsel on record by merely denying and distancing themselves from the admitted sum which was duly executed by the parties as

per the Terms of Settlement in this case but yet to be made the consent judgement of this Honourable Court before the unfortunate death of the 1st Defendant?s alter ego will not relieve them from their duties and obligations under the said agreement. It speaks volume that it is the same Counsel on record who negotiated, drew up the terms of the said proposed terms of settlement and executed the agreed terms of settlement on behalf of the Defendants that turned round to impugn the said agreement. I say no more on this.
In the result, I find and hold that the Plaintiff/Applicant has made out a case for judgment on admission for the sum N250,000,000.00 (Two Hundred and Fifty Million Naira) with interests against the Defendants/Respondents in this suit.?
The High Court has said all that needs to be said in answer to the argument by the learned Counsel for the Appellant in this appeal, on whether the admission by the 1st Appellant in the terms of settlement and Counsel himself vide the letter dated 6th February 2013, was qualified, equivocal and non-categorical. I invite the letter of 6th February, 2013 and the Terms of Settlement of 21st

January, 2014 filed before the High Court to speak for themselves. Here they say: –
?The Managing Director,
Asset Management Corporation of Nigeria
39. Alfred Rewane Road,
Malloney Towers, Ikoyi,
Lagos State, Nigeria.
Dear Sir,
RE: (1)SUIT NO. FHC/L/CS/893/2012 BETWEEN ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON) STORMBERG ENGINEERING COMPANY LIMITED
(2)ALLEGED IDENTENESS OF STORMBERG ENGINEERING COMPANY LIMITED TO ASSET MANAGEMENT ON CORPORATION OF NIGERIA (AMCON) ON PURCHASED NON-PERFORMING LOANS FROM FIDELITY BANK PLC AND DEFUNCT INTERCONTINENTAL BANK PLC.
(3) OFFER FOR AMICABLE SETTLEMENT
The above subject refers.
While our Client has Counter Claim against Asset Management Corporation of Nigeria and the respective banks on their Claims against our Client based on Forensic Audit Investigation Reports conducted on the respective accounts, however, on careful consideration of the implication of the protracted Claims and Counter-Claims of the parties on our Clients operations and integrity, our Client hereby offer to settle amicably the Claim of your Corporation as stated hereunder.

Please, note, that, in making this proposal, our Client who is equally negatively affected by the global economic down-turn has put into consideration its cash flow and positive conviction, that, its fund receivable shall start to materialize from July, 2013, thus, offer to pay in full and final settlement of your Corporation?s total claim of the sum of Five Hundred and Forty-four Million, Three Hundred and Sixty Thousand, Nine Hundred and Forty-three Naira, Fifty Kobo (N544,360,943.50k), the sum of Two Hundred and Fifty Million Naira (N250,000,000.00k) payable as follows: –
Consideration Sheet
INSTALMENTAL PAYMENT SCHEDULE
S/N AMOUNT EFFECTIVE DATE OF PAYMENT
1.20,000,000.00 31ST July, 2013
2.10,000,000.00 31st August, 2013
3. 10,000,000.00 30th September, 2013
4. 10,000,000.00 31st October, 2013
5. 10,000,000.00 30th November, 2013
6. 10,000,000.00 31st December, 2013
7. 10,000,000.00 31st January, 2014
8. 10,000,000.00 29th February, 2014
9. 10,000,000.00 31st March, 2014
10. 10,000,000.00 30th April, 2014
11. 10,000,000.00 31st May, 2014
12. 10,000,000.00 30th June, 2014

13. 10,000,000.00 31st July, 2014
14. 10,000,000.00 31st August, 2014
15. 10,000,000.00 30th September, 2014
16. 10,000,000.00 31st October, 2014
17 10,000,000.00 30th November, 2014
18. 10,000,000.00 31st December, 2014
19. 10,000,000.00 31st January, 2015
20. 10,000,000.00 29th February, 2015
21. 10,000,000.00 31st, March, 2015
22. 10,000,000.00 30th April, 2015
23. 10,000,000.00 31st May, 2015
24. 10,000,000.00 30th June, 2015
We want you to, note, that, our above installment payment is being made in view of the fact, that our offer is spread over twenty-four (24) months and do hope that you will accept our Client?s amicable resolution of the disputed Client.
Thank you.
Yours faithfully,
ABDULRASAQ ABDULRAHMAN & CO.
The Claimant and the Defendants herein agree to settle this suit in the following terms
1.The Defendants shall pay the sum of N250,000,000.00 in settlement of the claims of the Claimant in this suit.
2.The Defendants shall pay to the total sum of N237,500,00.00 only to the Claimant within 24 months from the date of approval of the Terms of

Settlement.
3.The Defendants shall repay 24 (twenty-four) monthly installments comprising of an initial Good faith payment of N12,500,000.00 within 30 days from the date of approval but not later than June, 30 2014 and 23 (twenty-three) equal installments of N11,518,949.00 (Principal & Interest commencing 31st July, 2014.
4. An interest rate of 15% per annum shall be applicable up to 30th June, 2014, thereafter the applicable interest rate shall be 15% per annum or MPR = 5 (whichever is higher).
5. Lump sum repayment and accelerated payment by the Defendants shall be allowed without penalty.
6. The parties shall withdraw all claims and counterclaim in this suit.
7. All other legal documents pursuant to Lenus of Settlement shall be duly executed.
8. Any pending litigation in respect of the underlying transaction that led to the sale of the loan(s) to AMCON shall be discontinued and an order of the Court served on AMCON in this regard.
9. All our-of-pocket expenses incurred in the arrangement, administration and recovery of this facility and/or prosecuting or defending any legal action, including but not limited to stamp duty

and other statutory fees, solicitor?s charges, travelling expenses, insurance premium, etc shall be borne by the obligor and may be debited to the account of the borrower without further recourse.
10. The Defendant shall maintain a comprehensive insurance policy on all assets of the company with the corporation and naming AMCON as first loss payee with cost borne by Stomberg Engineering Company Limited.
11. All collateral of the facility currently held by the banks on behalf of the corporation shall only release upon full settlement of the indebtedness.
12. Upon acceptance of the terms of this Settlement the debtors shall forfeit their right of contesting the debt and the charges with Bank PHB (now Keystone Bank) Intercontinental Bank (now Access Bank) and Fidelity Bank Plc or the corporation.
13. Any confirmation of satisfactory account performance issued on the debtor to the CRMS or any financial institution shall be withdrawn if the debtor defaults in any installment or fails to honour any provisions of the restructuring agreement.
14. No failure or delay by the Claimant in exercising any remedy, right or power herein shall operate

as a waiver or impairment thereof nor shall it affect or impair any such remedies, power or right in respect of any other subsequent default.
15. All concessions granted under the Terms of Settlement shall be revoked and the collateral said by corporation if the debtor defaults by any of the following.
a. Failure to pay the sum of N12,500,000.00 within 30 days but not later than 30th June, 2014.
b. Monthly installments remaining unpaid for 90 days.
c. Failure to comply with any other covenant of these Terms of Settlement.
16. Where default occurs, the exercise of the right of the Claimant shall be at the sole discretion of the Claimant.
17. The Terms of Settlement shall be adopted as the judgment of this Honourable Court in this suit.
18. Each party shall bear its own cost.
The parties hereby agree that these terms be entered as the judgement of the Honourable Court.
Dated this 21st day of June, 2014.?

Then, there was the Letter of 6th March, 2013 from the Respondent to the 2nd Appellant in respect of and in reaction to the Counsel?s letter of 6th February, 2013. It is as follows: –

?Dear Sir,
RESTRUCTION OF OUTSTANDING LIABILITIES OF STORMBERG ENGINEERING, COMPANY LIMITED
We refer to the terms of the Credit Faculties extended to you by PHB (Now Keystone Bank) Intercontinental Bank (Now Access Bank) and Fidelity Bank, which had subsequently been purchased by AMCON as follows.
S/N BANK EXPOSURE EFFECTIVE DATE
1. Bank PHB N194,432262.00 January, 01,2011
2. Intercontinental Bank N306,099,268.50 April 01, 2011
3. Fidelity Bank N43,538,412.00 January 01,2012
4. TOTAL N544,360,942.50
Sequel to your letter dated February, 6, 2013, we hereby convey the Management?s approval to accept the sum of N250,000,000.00 in settlement of your indebtedness to the Corporation subject to the following terms and condition.
Restructuring Terms & Conditions
Facility Type Restructuring Terms & Loan
Settlement Amount: N250,000,000.00
Good faith Payment: N12,5000,000.00 to be made within 30 days from date of approval but not been than March, 31 2013
Amount to be destruction N237,500.000.00
Tenor: 24 Months
Interest Rate: pay up to 31/12/2013. Thereafter applicable interest rate

will be for MPP ? 5% (whichever is higher)
Effective Date Suitable Mortgage on the property located at 16 King Ologunkuteb Street, Parkview Estate, Ikoyi, Lagos.
2. Tripartite Legal Mortage on a property located at Plot 167 Ligali Ayorinde Street, Victoria Island, Lagos
3. Tripartite demolition agreement between Western, Stormberg and Keystone Bank.
4. Personal Guarantor of the CEO of Stormberg Engineering Company Limited.
Lump such repayment Affidavit withheld penalty.
Repayment terms Six (24) monthly repayments, compromising of an initial payment of N23,524,065.95 and 23 repayments of N11,518,949.00 (Plaintiff & Interest commencing July 31, 2013.
Condition Precedent
1. Unconditional acceptance of this offer by authorized signatories of
2. Stormberg Engineering Company Limited Board Resolution accepting this offer.
3. Execution of all other legal documents pursuant to this offer.
4. Any pending litigation in respect of the undertaking transaction that led to the sale of the loan(s) in AMCON should be discontinued and an order of the Court served on AMCON in

this regard
5. Good Faith payment N12,500,000.00 to be made and within 30 days from date of approval but no later then March, 2013.
Other Condition;
1. All out-of-pocket expenses incurred in the arrangement, administrative and recovery of this facility and in prosecuting or defending any legal action, including but nor limited to stamp duty and other statutory fees, solicitors, charges, gravelling expenses, insurance premium, etc. shall be borne by the obligor and may be debted to the account of the borrower without further repouse.
2. Debtor shall maintain a comprehensive insurance policy on all the assets of the company pledges with the Corporation and naming AMCON as its loss payee with cost borne by Stormberg Engineering Company Limited.
3. All collateral of the facility currently held by the bank on behalf of the Corporation shall only be released upon full settlement of the indebtedness.
4. Upon acceptance of the terms of this settlement, the debtors shall forfeit their right to contesting the debt and the charges thereon with Bank PHB (now Keystone Bank) Intercontinental Bank (now Access Bank), Fidelity Bank Plc or the Corporation.

5. Repayment by the debtor shall be allowed with no penalty.
6. Constitution of satisfactory account performance issued on the debtor to the C3345 or any financial institution shall be withdrawn if the debtor defaults in any installment or fails to honour any information of the restructuring agreement.
7. No failure or delay by AMCON in executing any remedy right or power herein shall operate as a waiver or impairment thereof nor shall altered or impact any such remedies, power or right in respect of any other subsequent default.
8. The terms settlement shall be duly filed as consent judgment of Court.
Default:
All the concession granted under the terms of settlement shall be invoked and the collateral sold by the Corporation if the debtor defaults.
a. The offer is not accepted within fourteen(14) days.
b. Failure to pay the sum of N12,500,000.00 within 31 days but not later than March 31st, 2013.
c. Monthly installment remain unpaid for 90 days.
d. Failure to comply with any other covenant of this Terms of Settlement.
Where default occurs, the exercised of the right provided for in this other

letter shall be at the sole discretion of the Corporation.
Kindly indicate your acceptance of the terms within 14 days of receipt of the letter.
Yours faithfully,
For: ASSET MANAGEMENT CORPORATION OF NIGERIA
Muhammed Naijib Suleman Maxwell Ebihai
Head Loan Management (II) Head Loan Administration
MEMORANDUM OF ACCEPTANCE
We, Stormberg Engineering Company Limited hereby accept the terms and conditions contained in this letter.
Name: Dolapo Ajanaku Name: Akinsola Ebun
Title:C.E.C. Name: Secretary
Signature: Signature:
Date: 25-03-2013 Date 25-03-2013?

As may be observed, the 2nd Appellant and the Secretary of 1st Appellant expressly accepted the terms and conditions of the offer set out in the letter and signed the Memorandum of Acceptance, on the 25th March, 2013, without any equivocation or qualification, and categorically.

?By the categorical, unequivocal, and unqualified acceptance of the terms and conditions set out on the offer letter of 6th March, 2013, the free and voluntary consensus ad idem between the parties, created and brought into existence, a legally binding and

enforceable agreement or contract between them in law. UBN Limited v. Ozigi (1991) 2 NWLR (176) 677, Baba v. N.C.A.T.C. (1991) 5 NWLR (192) 385, UBA Limited v. Tejumola & Sons (1988) 5 SCNJ, 173, Omega Bank Nigeria Plc v. O.B.C. Limited (2005) 1 SC (Pt. 1) 49, Larmie v. D.P.M.S. Limited(2005) 12 SC (Pt. 1) 93, FBN, Plc v. Ndoma-Egba (2006) ALLFWLR (307) 1012.
The principle of law in the case of Galadanchi v. Abdulmalik (supra) referred by the High Court is simply that parties are entitled to settle or compromise all issues of dispute between them on any term and condition they agree on and that such agreement by way of amicable settlement out of Court supercedes the action altogether which the Court would no longer possess the jurisdiction to adjudicate over. The principle is apposite and applies in the case before the High Court in which parties have undeniably, settled the subject of their case by the terms and conditions embodied in the terms of settlement freely and voluntarily agreed to and executed by them which were filed in Court.
In the case of Woluchem v. Wokoma (1974) 9 NSCC, 181, Ibekwe, JSC had stated that:-

?The rule is that actions may be settled by consent during the trial. Usually, such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the Court, when the Court moves and takes action as agreed upon by the parties, it becomes a consent judgement.
(i)The settlement may consist of an agreement by the defendant to pay a liquidated sum of money by specified installments. In such a case, the practice is for the Court to give judgment for the total amount agreed to be paid coupled with an order for a stay of execution so long as the installments are paid in accordance with the terms agreed upon between the parties. The application of this kind of settlement is that if there is a failure to comply with the terms of installment payment, the party who suffers may proceed to levy execution.?
A judgement based on the terms of settlement freely and voluntarily agreed to by

the parties to an action, according to Mohammed, JSC in R.A.S.C. v. Akib (2006) 13 NWLR (997) 333, approving the statement by Lord Hershel, L.C. in Re: South American and Mexican Company, Ex parte Bank of England (1895) 1 CH 37 @ 50, that
?The truth is, a judgment by consent is intended to and put a stop to litigation between the parties just as much as is a Judgement which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action.?
All the above documents show and constitute an admission on the part of the 1st and 2nd Appellants of being indebted to the Respondent and the agreement to pay the sum of N250,000,000.00 in full and final settlement or payment of the debt owed or indebtedness.
Section 20 of the Evidence Act, 2011 defines ?admission? as follows: –
?An admission is a statement, oral or documentary, or by conduct which suggests any inference as to

any fact in issue or relevant fact and which is made by any of the persons, and in the circumstances, mentioned in this Act.?
Then Section 22 provides that: –
?Statement made by persons whose position or liability it is necessary to prove as against any party to the suit are admissions if such statements would be relevant as against such persons in relation to such position or liability in suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability.?
What the 1st Appellant is attempting to do and attempted to do before the High Court, is to resile from the admission of liability of indebtedness to the Respondent simply because the 2nd Respondent who executed the terms of settlement for and on its behalf, is no more and because Counsel who was part of the negotiation to settle, thinks he could get another decision if the matter settled was re-opened and tried by the High Court.
In the case of Odjevwedjo v. Echanokpe (1987) 3 SC, 47, (1987) 1 NWLR (52) 633, (1987) LPELR-8049 (SC), the apex Court per Uwais, JSC, in dealing with such a situation, had

referred with approval, to the decision of the Privy Council in Hostead v. Taxation Commissions (1926) A.C. 155 @ 165-6 in which it was stated that: –
?In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgement upon a different assumption of facts; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they represent as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle namely, that of setting to rest rights

of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgement, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties rights to rest applies and estoppel occurs.?
See also Cappa & D?Alberto Limited v. Akintilo (2003) 4 SC (Pt. II) 1, (2003) 9 NWLR (824) 49, Kamalu v. Umunna (1997) 5 NWLR (505) 321, A.G. Rivers State v. A.G. Akwa Ibom State (2011) 8 NWLR (1248) 31, Egemole v. Oguekwe (2010) ALLFWLR (513) 1424.
In the above premises, the terms of settlement entered into and agreed to by the parties which were filed in the High Court and made its judgement at their instance, have become a final binding consent judgement from which the law will not allow any of them to resile. The High Court was right on that ground to have granted the Respondent?s motion for judgement based on the admission by the 1st and 2nd Appellant contained in the terms of settlement.

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There is no merit in the argument by learned Counsel for the Appellants against the decision by the High Court on the said motion.

?In the final result, the sole issue is resolved against the Appellants and the appeal is therefore devoid of merit.
It is dismissed in its entirety and as a consequence, the Ruling by the High Court delivered on the 25th June, 2015 is hereby affirmed in its entirety.
There shall be costs of Five Hundred Thousand Naira (N500,000.00) assessed for the prosecution of the appeal in favour of the Respondent and to be paid by the Appellants.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft the leading judgment of my learned brother, MOHAMMED LAWAL GARBA, JCA just delivered.

In the aforesaid judgment his Lordship has adequately dealt with the relevant sole issue apt for the determination of the appeal. It is settled law that a judgment given based on terms of settlement freely and voluntarily entered and agreed to by the parties to an action and the terms of settlement filed in Court, is binding on the parties. According to ORJI ABADUA, JCA in

SAMMANIN FAITHU GALADANCHI v ABDULMALIK & ANOR (2014) LPELR – 23593 (CA) it was held that:
“…consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the Court.”
Juxtaposed with the provisions of Sections 20 and 22 of the Evidence Act, 2011, the 1st Appellant cannot resile from the agreement entered and from the admission of liability of indebtedness.

For the eloquent reasons appraised in the judgment, I agree that the appeal is unmeritorious.
In light of this, I too dismiss the appeal, and affirm the Ruling of the lower Court.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My Lord, the Honourable Justice M.L. GARBA, JCA, has just delivered the leading judgment in this appeal, and which I was privileged to read in draft.

?I agree with the detailed analysis of the issues raised and which were collapsed into one broad issue which the appeal had to resolve, and I agree with the resolution of the issue and the well-considered decision reached that the appeal utterly lacks merit, and it is

only fit to be dismissed as it constituted in my view, a gross abuse and possibly a misuse of the judicial process by the uncharitable conduct of the appellants and their counsel, who had unsuccessfully sought to resile from a term of settlement duly executed and filed by both parties before the lower Court. I abide by the order made as to costs awarded by the lead judgment.

Appearances:

A. Abdul-RahmanFor Appellant(s)

W. Okonne led by G. UduafiFor Respondent(s)

Appearances

A. Abdul-RahmanFor Appellant

AND

W. Okonne led by G. UduafiFor Respondent