ADEBAYO v. BENUE STATE UNIVERSITY (2021)

ADEBAYO v. BENUE STATE UNIVERSITY

(2021)LCN/15189(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, April 26, 2021

CA/MK/267/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ALHAJI A. ADEBAYO (Trading Under The Name And Style Falcon Associates) APPELANT(S)

And

BENUE STATE UNIVERSITY RESPONDENT(S)

RATIO

WHETHER LEAVE OF COURT MUST FIRST BE SOUGHT AND OBTAINED BEFORE FRESH POINT CAN BE RAISED ON APPEAL

The law obviously is well settled that a party who seeks to raise an issue before an appellate Court which issue was not raised and canvassed before the lower Court, must first seek and obtain the leave of the appellate Court before raising and arguing the said new issue. See the cases of Araka vs. Ejeagwu (2000) 12 SC., Pt. 1, pg. 99; Standard Printing and Publishing Coy. Ltd. N.A.B. Ltd. (2003) FWLR, Pt. 137, pg.1097 at 1099; Florence Olusanya vs. Olufemi Olusanya (1983) 1 SC., NLR. 134; Onwuka vs. Ononuju (2009) LPELR-2721(SC); and Adegbuyi vs. Mustapha (2010) LPELR-3600(CA). Now, the apex Court in the case of Musaconi Ltd. vs. Aspinall (2013) LPELR-20745 (SC) wherein it dealt with the issue of whether leave of Court must first be sought and obtained before fresh point can be raised on appeal and the exception(s) thereof, had this to say: Generally, this Court will not allow or permit a party to raise a fresh issue or question which was not raised in the Court below or grant leave to a party to argue fresh grounds which were not canvassed in the Court below. The exception being a situation where the new or fresh grounds involve substantial points of law, substantive or procedural which need to be allowed in order to prevent an obvious miscarriage of justice and ensure that substantial justice is seen to be manifestly done in the matter. Notwithstanding, the record must show the evidence already adduced by the party who is relying on the new issue being raised. See: Obi Eze vs. AG., Rivers State & 1 Or. (2001) 8 NSCQR 537; (2001) 18 NWLR (Pt.746) 524; Owners M.V. Gongola Hope & Anor. vs. Smurfit Cases (Nig.) Limited & Anor (2007) 15 NWLR Pt. 1056, pg. 189; (2007) 12 SCM Pt. 1, pg. 137. The apex Court went further to hold that: However, the Court will normally allow a fresh issue to be raised and argued on appeal where the said issue is relevant and more importantly, where no further evidence will be necessary. All that an appellant is required to do is to seek and obtain leave of the appellate Court to so raise the said fresh or new issue. Once this is done and the Court is satisfied that in the best interest of justice, leave should be granted, it shall be granted, without any further hesitation.” Arising from the foregoing is the conclusion that where no such leave is sought and obtained, the grounds of appeal become incompetent and liable to be struck out along with the issues raised on them, provided the issue sought to be canvassed on appeal is not an issue of law which in turn touches on the jurisdiction of the Court. This is a statutory requirement which must be complied with, failing which in appropriate situations, will render the ground of appeal and issue distilled from such grounds incompetent and liable to be struck out. See Bowaje v. Adediwura (1976) 6 SC 143; Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 at 262; Oshatoha v. Olujitan (supra); Royal Exchange Assurance (Nig.) Plc. v. Michael Anumnu (2003) 6 NWLR (Pt. 815) 52 at 79/84. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

WHETHER A TRIAL COURT CAN RELY ON EVIDENCE ELICITED FROM CROSS EXAMINATION

The evidence elicited from the DW1 in the course of his being cross examined technically, has no place in this appeal and so ought to be expunged. The cross examination on its own is not a legal evidence consequent upon which this Court reserves the right to expunge it from the record thereby leaving the DW1 with no evidence at all. See the case of Olayinka vs. The State (2007) 9 NWLR Pt. 1040, pg. 561 at 577-578, paras. H-A, where the Supreme Court held that: “Where evidence has been wrongly admitted, it is not a legal evidence, and the Court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. The Court cannot rely on it in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse and an appellate Court faced with such a situation has a duty to intervene. See Agbaje vs. Adigun (1993) 1 NWLR Pt. 269, pg. 261 at 272.” Having found cause to discountenance the evidence-in-chief of the DW1, the learned trial Judge thereby lost the locus to retain and rely on the evidence elicited under cross examination to determine the suit. This is because, there can be no cross examination without the evidence-in-chief. Cross examination invariably has no leg to stand on its own. Under the provisions of Section 215(1) of the Evidence Act, 2011 which provides for the order and direction of examination in Court:Witnesses shall be first examined-in-chief, then, if any other party so desires, cross-examined, then, if the party calling him so desires, re-examined. It was clearly injudicious of the lower Court to retain the evidence extracted from the DW1 in the course of his cross examination, while discarding the evidence-in-chief as if a cross examination has its own legs to stand on. What the trial Court did in the situation is akin to putting something on nothing and expecting it to stand. See the age long authorities of Madukolu vs. Nkemdilim (1962) 2 NSCC. 374; Sken Consult (Nig.) Ltd. vs. Ukey (1981) 1 SC. 6; UAC vs. MacFoy (1962) A.C., 152, 160; and Rossek vs. ACB Ltd. (1993) 8 NWLR Pt. 312, pg. 182. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

WHETHER AVERMENTS MADE IN PLEADING MUST BE SUPPORTED BY EVIDENCE

It has indeed been long settled that pleadings do not amount to evidence and by extension cannot be relied on in proof of an allegation. Averments made in pleading must therefore be supported by evidence, oral or documentary to prove same unless of course such averments are unequivocally admitted by the adverse party. This is to say that, facts admitted need no further proof. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

POSITION OF THE LAW REGARDING ELEMENTS OF A VALID CONTRACT

It is the law that, in all cases of contract between parties, there must be an intention to be bound and the parties must be ad idem on that. The law is also trite that contract between parties may be expressed by words or in writing and/or by implied conduct. See Stabilini & Co. vs. Obasi (1997) 9 NWLR Pt. 520, pg. 293 at 300, para. C-B., wherein it was held that: “The essential elements of contract are offer and acceptance, and in order to decide whether the parties have reached an agreement, it is usual to inquire whether there has been a definite offer by one party and an acceptance of that offer by the other. See A. R. Satterhwaite & Co. vs. New Zealand Shipping Co. Ltd. (1975) A.A.154 at 167. An offer in law is an expression of willingness to contract made with the intention that it shall become binding on the person making it as soon as it is accepted by the person to whom it is made or addressed. An acceptance in law is a final and unqualified expression of assent to the terms of the contract. See Wakama vs. Kalio (1991) 8 NWLR Pt. 207, pg. 123 at 130. A contract may also be expressed or implied. It is expressed by words spoken between the parties or by agreement in writing signed by the parties. A contract could also be implied by the conduct of the parties themselves. See Majekodunmi vs. National Bank (1978) 3 SC. 119 at 127. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

HOW ACCEPTANCE OF AN OFFER CAN BE MADE

In the authority of F.G.N. vs. Zebra Energy Ltd. (2002) LPELR-3172(SC), pg. 18, paras. A – B, the apex Court had held as follows: “Acceptance of an offer may be demonstrated by the conduct of the parties as well as by their words or by documents that have passed between them.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

POSITION OF THE LAW REGARDING OFFER AND ACCEPTANCE

… in Union Bank of Nigeria Ltd. vs. Ozigi (1991) 2 NWLR Pt. 176, pg. 677 at 694, paras. C-D, it is enunciated by the Court that: “It is trite law that the formation of a contract is not governed by rigid but by flexible rules, namely, that there must be a definite offer by one party called the offeror, and communicated to the other party called the offeree who accepts the offer; unless the offeror, the first party dispenses with such communication. See Ajayi Obe vs. The Executive Secretary, Family Planning Council of Nigeria (1975) 3 SC page 4. Offer and acceptance constitute an agreement, provided that the two parties reached a consensus ad idem, that is, the intention of both parties on what is agreed is identical … See also Carhil vs. Carbolic Smoke Ball Company (1983) 1 Q.B.D. 256 at 269.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

CIRCUMSTANCE WHERE ACCEPTANCE OF A PARTY TO A CONTRACT WILL BE PRESUMED

In a decision of this Court in the case of John Tunde Oriloye vs. Lagos State Govt. (2014) LPELR-22248(CA) at pages 31 – 32, paras. G – A, Chinwe E. Iyizoba, JCA., (as she then was) in the leading judgment held as follows: “The law is that, where a party to a contract receives a correspondence from the other party on the contract and he keeps silent thereon in circumstances in which reply or reaction is obviously expected, he is presumed to have consented to the contents of the correspondence. See Weidemann vs. Walpole (1891) 1 QB 534 at 537; Iva vs. Amakiri (1976) 11 SC., 1; Gwani vs. Ebule (1990) 5 NWLR Pt. 149, pg. 201; and Vaswani vs. Johnson (2000) 11 NWLR Pt. 679, pg. 582. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

OPERATION OF THE DOCTRINE OF EQUITABLE ESTOPPEL

… Horicon Ltd. vs. A-G., Plateau State (2012) 10 NWLR Pt. 1309, pg. 419 at 449, paras. G – F, wherein the noble Fabiyi, JSC., in the leading judgment held as follows: “There is what is referred to as equitable estoppel. This is a doctrine preventing one party from taking advantage of another when through false language or conduct, the person to be stopped has induced another person to act in a certain way, with the result that the other person has been injured in some ways. It is termed estoppel by conduct or estoppels in pais. I need to further remind the defendant that Section 151 of the Evidence Act clearly incorporates the doctrine of equitable estoppels. In Ude vs. Nwara & Anor. (1993) 2 NWLR Pt. 278, pg. 638 at 662, this Court pronounced that in the operation of the rule of estoppels, a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or as it is said to approbate and reprobate. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Benue State (hereinafter the lower/trial Court), sitting in Makurdi, presided over by Hon. Justice T. A. Igoche, J., delivered 13th April, 2017 in suit No. MHC/153/2016. (See pages 95 – 109 of the record of appeal).

FACTS RELEVANT TO THE APPEAL
The appellant herein, who as the plaintiff at the trial Court took out a writ of summons on 11th May, 2016 and by way of summary judgment sought the following relief against the defendant herein the respondent:
N2,941,858.10k (Two Million, Nine Hundred and Forty-One Thousand, Eight Hundred and Fifty-Eight Naira, Ten kobo) being outstanding fee for the consultancy services. (See pages 1 – 22 of the record of appeal).

Upon service of the originating processes on the defendant, she filed her statement of defence, Memorandum of Conditional Appearance and other relevant processes in opposition to the appellant’s claim. (See pages 22 – 54 of the record of appeal).

The plaintiff further filed a reply to the defendant’s

statement of defence. (See pages 55 – 59 of the record).

When the matter came up for the first time for hearing on 20th June, 2016 and upon the application of the learned counsel for the plaintiff given the counter affidavit filed by the defendant, the matter was set down for hearing in the general cause list. The plaintiff who was the PW1 testified in his case and was duly cross-examined. The defence only witness Aondohemba Aluku (DW1) also testified and was cross-examined. (See pages 61 – 67 of the record of appeal). At the end of hearing, the parties filed and exchanged written addresses.

On 13th April, 2017, the trial Court in its considered judgment dismissed the plaintiff’s suit. (See pages 95 – 109 of the record of appeal). Aggrieved by the judgment, the plaintiff filed a Notice of Appeal on 10th July, 2017. (See after page 109 of the record of appeal). Though, the Plaintiff/Appellant compiled and transmitted the record of appeal out of time on 24th October, 2017 however, pursuant to the leave of Court sought and obtained, the said record of appeal was subsequently deemed on 20th September, 2018.

In compliance with

the practice and rules of this Court, the parties filed and exchanged their respective briefs of argument. The appellant’s brief dated 19th December, 2017, filed 20th December, 2017 and deemed properly filed 20th September, 2018 and their reply brief dated 5th February, 2019 and filed 7th February, 2019 were both settled by Lukman O. Fagbemi, Esq. The respondent’s brief dated 23rd January, 2019, filed 24th January, 2019 and deemed properly filed same 24th January, 2019 was settled by S. D. Swem, Esq.

From the 3 grounds of the Notice of Appeal, the appellant proffered the following 3 issues for determination of the appeal:
1. Whether the trial Judge was not wrong in law in relying in his judgment on the evidence of DW1 elicited under cross examination when DW1’s witness statement on oath which gave rise to the said cross examination had been discountenanced in the same judgment for breach of Section 117(4) of the Evidence Act, 2011. (Ground 1).
2. Whether the trial Judge was not wrong in law when he held that the Appellant failed to prove his case to be entitled to the reliefs sought by him against the Respondent. (Ground 2).

Whether the trial Judge was not wrong in law when he failed to rely on Appellant’s letter dated 29th May, 2011 written by his Counsel on the ground that the said letter was not certified. (Distilled from Ground 3).The respondent adopted and argued the 3 issues as distilled for determination by the appellant.
ISSUE 1 (ONE)
Whether the trial Judge was not wrong in law in relying in his judgment on the evidence of DW1 elicited under cross examination when DW1’s witness statement on oath which gave rise to the said cross examination had been discountenanced in the same judgment for breach of Section 117(4) of the Evidence Act, 2011.

Appellant submits under this issue that the learned trial Court was totally wrong in law to rely on the evidence of the DW1 elicited under cross examination after the said DW1’s deposition upon which the said cross examination was based, was discountenanced for being in breach of Section 117(4) of the Evidence Act, 2011. Submits that the effect of having the DW1’s deposition discountenanced by the trial Court simply connotes that there is no evidence led by the defendant at all in his defence and the

DW1 cannot be subject to any form of cross examination by the appellant at the trial. Relying on the case of MacFoy vs. UAC (1961) 3 All ER 1169, 1172, para. 1, the appellant canvassed that there was no foundation upon which the said cross examination could stand and that the trial Court was simply to have rejected the entire evidence of the DW1. See also A.G., Anambra State vs. Okafor (1992) 2 NWLR Pt. 224, pg. 396, at 431, para. B; Idesho vs. Ordia (1997) 3 NWLR Pt. 491, pg. 17; UBN. Plc. vs. Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR Pt. 1052, pg. 567; and CBN vs. Okojie (2015) 14 NWLR Pt. 1479, pg. 231 at 257 – 258, Paras. F-C. The appellant went on to contend that the respondent thus did not lead any evidence in rebutting the claim of the appellant at the trial Court, hence, the appellant proved his case to be entitled to the relief sought as endorsed in the writ of summons. Appellant submitted finally that the reliance placed by the trial Court on the evidence of DW1 under cross examination having been shown to be wrong, robbed the appellant of the right to the relief claimed which was proved by credible evidence at the trial Court.

On the converse, the respondent submitted that the appellant did not object to the DW1’s witness statement on oath on the grounds that the said statement on oath was not signed before the Commissioner for Oath. He canvassed that what the appellant’s counsel challenged in the course of the evidence of the DW1 was the signature of DW1 under Section 95 (1) of the Evidence Act, 2011 pursuant to which the specimen signatures of the DW1 were taken and admitted in evidence as Exhibits and that the objection was raised in the appellant’s final written address and not in the course of DW1’s evidence.

Respondent in further contention relied on the authority of Adegbuyi vs. Mustapha (2010) All FWLR at (?) 1783 – 1784, paras. H – B, to submit that the appellant ought to have first sought the leave of this Court before raising before this Court, the issue of impropriety of the evidence elicited from the DW1 under cross examination at the lower Court and that their failure to do so is fatal to ground 1 of the Notice of Appeal and issue 1 distilled therefrom. Respondent thus urged on us to discountenance issue 1.

Going further, the

respondent canvassed that in the unlikely event that the Court finds issue 1 as being proper before us, respondent surmised that the lower Court was absolutely right in relying on the evidence of the DW1 obtained under cross examination and after discountenancing the deposition of the DW1 for being in breach of Section 117(4) of the Evidence Act, 2011. Respondent argued that the failure of DW1 to sign his deposition before the Commissioner for Oaths affected only the said deposition and not his entire evidence. That the evidence of DW1 under cross examination which was given on oath before the lower Court was good in law and there existed no legal basis for the lower Court to discountenance same. See Asadu vs. Ifeanyi (2010) All FWLR, Pt. 517, pg. 736 at 750, paras. H.

The learned counsel for the respondent submitted that the ratio decidendi of the judgment of the lower Court in this case was not based on the evidence of the DW1 under cross examination. That, what informed the final and ultimate decision of the lower Court was the state of the parties’ pleadings and the evidence of the appellant both in chief and under cross examination. Respondent

urged in essence that ground 1 of the Notice of Appeal and issue 1 distilled there from are both idle and bereft of any appellate value.

Relying on the authorities of Eze vs. Okoloagu (Rtd.) (2009) LPELR-3922 at 36 – 37, paras. F – A; Adeosun vs. Gov., Ekiti State (2012) LPELR-7843 at 23, paras. A-B; and Olawolu vs. ASEMA (2018) LPELR- 45137 at 23 – 24, learned counsel for the respondent submitted that, even if the evidence of DW1 under cross examination was not valid, though, they do not concede to that, the evidence elicited by the respondent from PW1 under cross examination, constitutes evidence in her defence to the appellant’s case. Respondent urged a resolution of the issue in their favour.

There is the appellant’s reply brief which I have taken cognizance of. Be that as it may, I shall be drawing from same for as long as the justice of the appeal allows.

RESOLUTION OF ISSUE 1 (ONE)
Whether the trial Judge was not wrong in law in relying in his judgment on the evidence of DW1 elicited under cross examination when DW1’s witness statement on oath which gave rise to the said cross examination had been

discountenanced in the same judgment for breach of Section 117(4) of the Evidence Act, 2011.

Now, the first aspect of this issue 1 (one) that needs to be addressed as the same seems to touch on the jurisdiction of the Court to hear this appeal, is the respondent’s submission that the appellant needed the leave of Court before raising the issue of impropriety or otherwise of the DW1’s evidence elicited under cross examination at the lower Court. The respondent urged that failure to obtain leave is fatal to ground 1 of the Notice of Appeal as well as the issue distilled therefrom.

The learned trial Court in its considered ruling/judgment, discountenanced the evidence-in-chief of the DW1 (Godwin Alumuku), on grounds of non-compliance with the provisions of Section 117(4) of the Evidence Act, 2011 which Section provides thus:
An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken.

Notwithstanding, the fact that the DW1’s evidence-in-chief was discountenanced, the learned trial Court however, retained

and relied on the cross examination arising therefrom, a procedure which the plaintiff/appellant appeared not to have challenged at the lower Court. It is thus, the contention of the respondent that the appellant cannot at this appellate stage challenge for the first time, the propriety or otherwise of the trial Court’s reliance on the DW1’s cross- examination alone in reaching its judgment. This is to say that, the issue is being raised here for the first time by the appellant without first seeking and obtaining the leave of Court.

It is pertinent to bring to the fore, the fact that the DW1 at the onset of his evidence before the lower Court, adopted the statement on oath which he made on 16th June, 2016. This is evident in his testimony wherein he said inter alia:
I recall making a statement on oath on this case on 16/6/16. I can identify it by my signature. This is the statement and I wish to adopt it as, any (sic) evidence before the Court…. (See page 64 of the record of appeal).

Further in the course of being cross examined, the DW1 went on to testify as follows regarding his written statement:
I have seen the

signature on my statement on oath. The signature there is mine. I signed the statement in my office at No. 19 Railway By-pass High Level, Makurdi, I cannot remember the exact date on which I signed it. It was brought to me by Barrister Shior. … I still maintain that I signed my written statement which I adopted now. (See page 65 of the record of appeal).

At this point, Mr. G. I. Enebeli of counsel for the plaintiff/appellant raised an objection contesting the signature of the witness (DW1) arguing under Section 95(1) of the Evidence Act, 2011 that the witness did not sign his statement on oath. It was consequent upon this that the learned lower Court ruled as follows at page 66 of the record of appeal:
Court – This document shall also be marked as “Tendered but objected to” and it shall be considered during the final address and judgment.

Without doubt and as has clearly played out above, the issue of the DW1 signing or not signing his statement on oath was raised and addressed for the first time before the lower Court. Premised on this, the parties were ordered by the trial/lower Court to address the issue in their

respective final written addresses which they did. In its considered ruling/judgment on it as an interlocutory issue, the learned trial Judge agreed with the appellant’s contention that the DW1’s statement on oath was not signed in compliance with Section 117(4) of the Evidence Act, supra and thus discountenanced the said statement on oath, though, retaining and relying on the evidence that arose from the cross examination.

Be that as it may, save for the objection by the appellant against the propriety or otherwise of the DW1’s statement on oath and which objection was upheld by the learned trial Judge, the said appellant did not challenge the propriety or impropriety as the case may be, of the DW1’s evidence elicited in the course of his being cross examined. The law obviously is well settled that a party who seeks to raise an issue before an appellate Court which issue was not raised and canvassed before the lower Court, must first seek and obtain the leave of the appellate Court before raising and arguing the said new issue. See the cases of Araka vs. Ejeagwu (2000) 12 SC., Pt. 1, pg. 99; Standard Printing and Publishing Coy. Ltd. N.A.B. Ltd.

(2003) FWLR, Pt. 137, pg.1097 at 1099; Florence Olusanya vs. Olufemi Olusanya (1983) 1 SC., NLR. 134; Onwuka vs. Ononuju (2009) LPELR-2721(SC); and Adegbuyi vs. Mustapha (2010) LPELR-3600(CA).
Now, the apex Court in the case of Musaconi Ltd. vs. Aspinall (2013) LPELR-20745 (SC) wherein it dealt with the issue of whether leave of Court must first be sought and obtained before fresh point can be raised on appeal and the exception(s) thereof, had this to say:
Generally, this Court will not allow or permit a party to raise a fresh issue or question which was not raised in the Court below or grant leave to a party to argue fresh grounds which were not canvassed in the Court below. The exception being a situation where the new or fresh grounds involve substantial points of law, substantive or procedural which need to be allowed in order to prevent an obvious miscarriage of justice and ensure that substantial justice is seen to be manifestly done in the matter. Notwithstanding, the record must show the evidence already adduced by the party who is relying on the new issue being raised. See: Obi Eze vs. AG., Rivers State & 1 Or. (2001) 8

NSCQR 537; (2001) 18 NWLR (Pt.746) 524; Owners M.V. Gongola Hope & Anor. vs. Smurfit Cases (Nig.) Limited & Anor (2007) 15 NWLR Pt. 1056, pg. 189; (2007) 12 SCM Pt. 1, pg. 137.
The apex Court went further to hold that:
However, the Court will normally allow a fresh issue to be raised and argued on appeal where the said issue is relevant and more importantly, where no further evidence will be necessary. All that an appellant is required to do is to seek and obtain leave of the appellate Court to so raise the said fresh or new issue. Once this is done and the Court is satisfied that in the best interest of justice, leave should be granted, it shall be granted, without any further hesitation.”
Arising from the foregoing is the conclusion that where no such leave is sought and obtained, the grounds of appeal become incompetent and liable to be struck out along with the issues raised on them, provided the issue sought to be canvassed on appeal is not an issue of law which in turn touches on the jurisdiction of the Court. This is a statutory requirement which must be complied with, failing which in appropriate situations, will render the ground

of appeal and issue distilled from such grounds incompetent and liable to be struck out. See Bowaje v. Adediwura (1976) 6 SC 143; Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 at 262; Oshatoha v. Olujitan (supra); Royal Exchange Assurance (Nig.) Plc. v. Michael Anumnu (2003) 6 NWLR (Pt. 815) 52 at 79/84.

The failure of the appellant to seek the leave of the Court before raising for the first time, the issue of impropriety or otherwise of the retention of the evidence of the DW1 which arose from his cross examination would ordinarily be fatal to ground 1 of the Notice of Appeal as well as the issue distilled therefrom. However, the issue of seeking and obtaining the prior leave of Court can be dispensed with in a situation where the new or fresh grounds involve substantial points of law, substantive or procedural which need to be allowed in order to prevent an obvious miscarriage of justice and ensure that substantial justice is seen to be manifestly done in the matter. The record must however show the evidence already adduced by the party who is relying on the new issue being raised. I am of the humble view that the lower Court committed an error of law when

in its judgment it relied on the evidence generated in the course of the DW1’s cross examination when same ought to have been expunged alongside the evidence-in-chief. This is a procedural irregularity which has touched on the substance of the case and prone to causing a miscarriage of justice. Being an issue that affects the jurisdiction of the Court, the failure to seek and obtain prior leave of the Court before raising it at the appellate level is dispensable. A matter that touches on the jurisdiction of a Court, being a threshold issue can be raised without seeking leave of Court. In the instant case the fresh issue sought to be heard on appeal is a question of law and as such is insulated from the demand of leave. See particularly Section 241(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Consequently, the objection by the respondent to the effect that the appellant did not seek the leave of Court prior to raising the issue surrounding the propriety or otherwise of the evidence elicited from the DW1 at the lower Court, is unsustainable and is therefore overruled.

The evidence elicited from the DW1 in the course of

his being cross examined technically, has no place in this appeal and so ought to be expunged. The cross examination on its own is not a legal evidence consequent upon which this Court reserves the right to expunge it from the record thereby leaving the DW1 with no evidence at all. See the case of Olayinka vs. The State (2007) 9 NWLR Pt. 1040, pg. 561 at 577-578, paras. H-A, where the Supreme Court held that:
“Where evidence has been wrongly admitted, it is not a legal evidence, and the Court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. The Court cannot rely on it in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse and an appellate Court faced with such a situation has a duty to intervene. See Agbaje vs. Adigun (1993) 1 NWLR Pt. 269, pg. 261 at 272.”
Having found cause to discountenance the evidence-in-chief of the DW1, the learned trial Judge thereby lost the locus to retain and rely on the evidence elicited under cross examination to determine the suit. This is because, there can be no cross examination without

the evidence-in-chief. Cross examination invariably has no leg to stand on its own. Under the provisions of Section 215(1) of the Evidence Act, 2011 which provides for the order and direction of examination in Court:
Witnesses shall be first examined-in-chief, then, if any other party so desires, cross-examined, then, if the party calling him so desires, re-examined.
It was clearly injudicious of the lower Court to retain the evidence extracted from the DW1 in the course of his cross examination, while discarding the evidence-in-chief as if a cross examination has its own legs to stand on. What the trial Court did in the situation is akin to putting something on nothing and expecting it to stand. See the age long authorities of Madukolu vs. Nkemdilim (1962) 2 NSCC. 374; Sken Consult (Nig.) Ltd. vs. Ukey (1981) 1 SC. 6; UAC vs. MacFoy (1962) A.C., 152, 160; and Rossek vs. ACB Ltd. (1993) 8 NWLR Pt. 312, pg. 182.

In the event of all that I have said above, the question whether the trial Judge was not wrong in law in relying in his judgment on the evidence of DW1 elicited under cross examination when his statement on oath which gave rise to the

said cross examination had been discountenanced for breach of Section 117(4) of the Evidence Act, 2011, is thus answered in the affirmative. I am saying that the learned trial Judge was wrong in his judgment when he took into consideration the evidence elicited from the DW1 under cross examination, when the evidence-in-chief had been discountenanced. The said evidence derived from the cross examination shall be and is hereby expunged from the record. Issue 1 (one) is thus resolved in favour of the appellant and against the respondent.

ISSUE 2 (TWO)
Whether the trial Judge was not wrong in law when he held that the Appellant failed to prove his case to be entitled to the reliefs sought by him against the Respondent.
The appellant contends herein that the trial Court was totally wrong in law to have held that there was no agreement or meeting of the minds of the parties. Appellant further submits that the failure of the respondent to respond to Exhibits ‘4’ and ‘6’ which are the letters of demand of the balance of professional fees due to him, within a reasonable time, is an acceptance of the appellant’s claim to the

outstanding balance of N2,941,858.10k. Referring to the cases of B. Stabillini & Co. Ltd. vs. Obasi (1997) 9 NWLR Pt. 520, pg. 293 at 300, paras. C – B., and Majekodumi vs. National Bank (1978) 3 SC 119 at 127, the appellant canvassed that there was a valid contract between the appellant and the respondent, upon which the appellant is entitled to the amount claimed by him as professional fees. That failure of the respondent to inform the appellant by way of reply to exhibit 4 shows admission of the respondent by conduct. See F.G.N. vs. Zebra Energy Ltd. (2002) LPELR-3172(SC) at pg. 18, paras. A – B.

The appellant submitted that the respondent intended to be bound by the appellant’s demand in Exhibit ‘4’ and consequently issued Exhibit ‘5’ being a cheque of N95,000.00 as part payment of the total sum of N3,041,858.10k to the appellant. See In-Time Connection Limited vs. Mrs. Janet Ichie (2009) LPELR-8772(CA); and John Tunde Oriloye vs. Lagos State Govt. & Ors. (2014) LPELR-22248(CA) at pages 31 – 32, per Chinwe Eugenia Iyizoba, JCA., (as she then was). Appellant further submitted that the respondent

herein, by his conduct led and induced the appellant to have strong belief that the transaction is settled as it relates to the contracts of Exhibit ‘4’, only for the respondent to make a u-turn after five years of his forbearance conduct. Appellant argued that Exhibit ‘2’ which is a letter of 8/4/2016 issued by the respondent to the appellant, rejecting the contents of both Exhibits ‘4’ and ‘6’ written by the appellant on 11/1/2011 and 14/7/2011 respectively is nothing but an afterthought to over reach the appellant. Appellant submitted that Exhibit ‘5’ of the respondent does not represent the full and final payment as same does not commiserate with the volume of work done by the appellant in respect of the total cost of project to be carried out which is N118,232,326.20k (One Hundred and Eighteen Million, Two Hundred and Thirty-Two Thousand, Three Hundred and Twenty-Six Naira, Twenty Kobo) only. He contended that the lower Court in its judgment, shut its eyes to the obvious and took into consideration extraneous matter in deciding the case and the decision is perverse and same to be set aside. See

Atolagbe vs. Shorun (1985) NWLR Pt. 2, pg. 30; Osuji vs. Ekeocha (2009) 16 NWLR Pt. 1166, pg. 81; and Irolo vs. Uka (2002) 14 NWLR Pt. 786, pg. 195. Appellant urged on us to resolve the issue in his favour, allow the appeal and grant the claims as contained in the writ of summons.

RESOLUTION OF ISSUE 2 (TWO)
I shall for obvious reasons, proceed to resolve this issue without regard to the submission of the respondent on the issue. In the preceding issue 1 (one), the lower Court was held to have rightly discountenanced the evidence-in-chief of the respondent’s sole witness for non-compliance with the provisions of Section 117(4) of the Evidence Act, 2011. This Court however, also discountenanced and expunged from the record the evidence elicited from the said sole witness in the course of his being cross examined, thereby leaving the respondent with no evidence whatsoever in substantiation of their pleadings and proof of their case. It has indeed been long settled that pleadings do not amount to evidence and by extension cannot be relied on in proof of an allegation. Averments made in pleading must therefore be supported by evidence, oral or

documentary to prove same unless of course such averments are unequivocally admitted by the adverse party. This is to say that, facts admitted need no further proof. Having expunged both the evidence-in-chief as well as the evidence extracted from the respondent in the course of their being cross examined, it is obvious that the Court is left with only the evidence of the appellant in determining issue 2 (two). In the premises, the appellant is to discharge his burden on minimal proof of his case.

Now, in line with their pleadings, the appellant led evidence to the effect that consequent to an oral discussion he had with the respondent sometime in early January, 2011, he, the appellant produced Bill of Quantities of lecture rooms for the respondent at a total cost of N3,041,858.10k (Three Million, Forty-One Thousand, Eight Hundred and Fifty-Eight Naira, Ten Kobo) only. See Exhibit ‘1’. Upon completion of the consultancy services and the submission of the said Exhibit ‘1’, the respondent made a part payment of N95,000.00 (Ninety-Five Thousand Naira) only on 12th May, 2011 leaving an unpaid balance of N2,941,858.10k (Two Million, Nine

Hundred and Forty-One Thousand, Eight Hundred and Fifty-Eight Naira, Ten Kobo) only due to the appellant. See Exhibit ‘2’. The appellant on 14th July, 2011 wrote a letter to the respondent through its Vice Chancellor demanding the unpaid balance. (See Exhibit ‘3’ as shown at page 8 of the record of appeal). Because the respondent failed to meet or respond to the demand, the appellant had to consult his Solicitor who then wrote another demand letter dated 27th September, 2011 but served on the respondent on 28th September, 2011. The respondent still did not pay up the balance. The letter from the appellant’s counsel is marked Exhibit ‘4’ at page 9 of the record. Up until the time the writ of summons was taken out at the lower Court on 11th May, 2016, the respondent still failed and or neglected to pay up the balance of N2,941,858.10K (Two Million, Nine Hundred and Forty-One Thousand, Eight Hundred and Fifty-Eight Naira, Ten Kobo) only due to the appellant.

Much as the respondent is found to have abandoned its pleadings having no evidence to substantiate same, the appellant still led evidence to show that a valid

contract existed between him and the said respondent. This is so because, upon completion of his services to the respondent, the appellant wrote Exhibits ‘1’, ‘3’ and ‘4’ respectively which demand letters merely yielded part payment of the sum of N95,000.00 (Ninety-Five Thousand Naira) only as shown in Exhibits ‘2’ and ‘5’.

the intention that it shall become binding on the person making it as soon as it is accepted by the person to whom it is made or addressed. An acceptance in law is a final and unqualified expression of assent to the terms of the contract. See Wakama vs. Kalio (1991) 8 NWLR Pt. 207, pg. 123 at 130. A contract may also be expressed or implied. It is expressed by words spoken between the parties or by agreement in writing signed by the parties. A contract could also be implied by the conduct of the parties themselves. See Majekodunmi vs. National Bank (1978) 3 SC. 119 at 127.
With the issuance of Exhibit ‘5’ i. e. the cheque for N95,000.00 (Ninety-Five Thousand Naira) only, the respondent has impliedly admitted the existence of a contract between it and the appellant and further demonstrated an intention to be bound by the appellant’s demand for the sum of N3,041,858.10K (Three Million, Forty One Thousand, Eight Hundred and Fifty-Eight Naira, Ten Kobo) only as fees for services rendered to it. In the authority of F.G.N. vs. Zebra Energy Ltd. (2002) LPELR-3172(SC), pg. 18, paras. A – B, the apex Court had held as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Acceptance of an offer may be demonstrated by the conduct of the parties as well as by their words or by documents that have passed between them.”
Again, in Union Bank of Nigeria Ltd. vs. Ozigi (1991) 2 NWLR Pt. 176, pg. 677 at 694, paras. C-D, it is enunciated by the Court that:
“It is trite law that the formation of a contract is not governed by rigid but by flexible rules, namely, that there must be a definite offer by one party called the offeror, and communicated to the other party called the offeree who accepts the offer; unless the offeror, the first party dispenses with such communication. See Ajayi Obe vs. The Executive Secretary, Family Planning Council of Nigeria (1975) 3 SC page 4. Offer and acceptance constitute an agreement, provided that the two parties reached a consensus ad idem, that is, the intention of both parties on what is agreed is identical … See also Carhil vs. Carbolic Smoke Ball Company (1983) 1 Q.B.D. 256 at 269.”

The respondent in the instant appeal upon receipt of Exhibit ‘1’ (the first demand letter) on 16th February, 2011, issued Exhibit ‘5’ being a cheque for part

payment of N95,000.00 (Ninety-Five Thousand Naira) only on 11th May, 2011 to the appellant. The appellant in return, issued a receipt dated 12th May, 2011 acknowledging the part payment. The appellant later wrote a reminder for the outstanding balance to the respondent on 14th July, 2011 to which he got no response. In a decision of this Court in the case of John Tunde Oriloye vs. Lagos State Govt. (2014) LPELR-22248(CA) at pages 31 – 32, paras. G – A, Chinwe E. Iyizoba, JCA., (as she then was) in the leading judgment held as follows:
“The law is that, where a party to a contract receives a correspondence from the other party on the contract and he keeps silent thereon in circumstances in which reply or reaction is obviously expected, he is presumed to have consented to the contents of the correspondence. See Weidemann vs. Walpole (1891) 1 QB 534 at 537; Iva vs. Amakiri (1976) 11 SC., 1; Gwani vs. Ebule (1990) 5 NWLR Pt. 149, pg. 201; and Vaswani vs. Johnson (2000) 11 NWLR Pt. 679, pg. 582. The claimant will thus be deemed to have consented to the revised capital development levy and the condition contained in Exhibit C7.”

Indeed, the

respondent by keeping silent upon receipt of the appellant’s Exhibits ‘1’, ‘3’ and ‘4’ had conveyed the impression that it was ad idem with the appellant that it was indebted to him to the tune of N3,041,858.00 (Three Million, Forty-One Thousand, Eight Hundred and Fifty-Eight Naira, Ten Kobo) only as claimed by the said appellant. Albeit, the respond ent vide its letter with ref nos: BSU/R/LM/25/28 dated 8th April, 2016, wrote to inform the appellant inter alia thus:
2) I write on directives to inform you that the University had approved the sum of one hundred thousand naira (N100,000.00) only which was paid to you as full and final payment, please.
… (See page 37 of the record of appeal).
The said respondent cannot after a period of 5 (five) years be allowed to make a reverse move and renege on the implied agreement of its indebtedness to the appellant to the tune of N3,041,858.10K (Three Million, Forty-One Thousand, Eight Hundred and Fifty-Eight Naira, Ten Kobo) out of which it made a part payment of N95,000.00 (Ninety-Five Thousand Naira) only. The cheque (Exhibit ‘5’) was

issued on 11th May, 2011, and the respondent did not see the need at that time to let the appellant know that the cheque was in full payment of its indebtedness. No, the above letter by the respondent was written in total bad taste. See West African Portland Cement Plc. vs. Mr. David Kehinde Oduntan (2007) LPELR- 9046(CA), Pgs. 26-27; Nassar & Sons (Nig.) Ltd. vs. L.E.D.B. (1959) 4 FSC 242; and Horicon Ltd. vs. A-G., Plateau State (2012) 10 NWLR Pt. 1309, pg. 419 at 449, paras. G – F, wherein the noble Fabiyi, JSC., in the leading judgment held as follows:
“There is what is referred to as equitable estoppel. This is a doctrine preventing one party from taking advantage of another when through false language or conduct, the person to be stopped has induced another person to act in a certain way, with the result that the other person has been injured in some ways. It is termed estoppel by conduct or estoppels in pais. I need to further remind the defendant that Section 151 of the Evidence Act clearly incorporates the doctrine of equitable estoppels.
In Ude vs. Nwara & Anor. (1993) 2 NWLR Pt. 278, pg. 638 at 662, this Court pronounced that

in the operation of the rule of estoppels, a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or as it is said to approbate and reprobate.
The respondent in line with the foregoing authorities is caught by the doctrine of estoppel and is therefore estopped from reneging on the agreement as implied from his conduct. Any other letter purportedly written by the respondent to the appellant on 8th April, 2016 reversing its earlier admission in particularly Exhibits ‘1’ and ‘2’, is clearly in bad faith and simply aimed at overreaching the said appellant and this detour cannot be allowed by this Court. As made bare by the circumstances of this case, I hold the firm conclusion that the lower Court missed the mark when it dismissed the appellant’s unchallenged and uncontroverted case as lacking merit. The decision is unsupportable in law, and as such cannot be allowed to stand.

Thus, the question whether the trial Judge was not wrong in law when he held that the Appellant failed to prove his case to be entitled to the reliefs sought by him against the Respondent, is answered in the

affirmative. This is to say, with every respect that, the lower Court was wrong in law when it held that the appellant failed to prove his case and as such, not entitled to the reliefs sought by him. Issue 2 (two) is accordingly resolved in favour of the appellant and against the respondent.

ISSUE 3 (THREE)
Whether the trial Judge was not wrong in law when he failed to rely on Appellant’s letter dated 29th May, 2011 written by his Counsel on the ground that the said letter was not certified.
I regard the foregoing issue 3 (three) to be a mere academic exercise given that its success or failure will neither subtract nor add to the decision already reached in this appeal. Issue 3 (three) without much ado is hereby discountenanced.

At the end of the day and with the resolution of the preceding issues 1 (one) and 2 (two) in favour of the appellant and against the respondent, it is indubitable that this appeal is imbued with merit and shall therefore succeed. The result is that the judgment of the trial Court per Hon. Justice T. A. Igoche, J., delivered 13th April, 2017 and dismissing the appellant’s suit No. MHC/153/16, is hereby set

aside. The plaintiff/appellant is entitled to the relief sought against the defendant/respondent who shall therefore pay to the said plaintiff/appellant the outstanding sum of N2,041,858.10K (Two Million, Forty-One Thousand, Eight Hundred and Fifty-Eight Naira, Ten Kobo) only, being final payment for the consultancy services rendered to the respondent.

Appeal succeeds with costs assessed and fixed at N100,000.00 in favour of the appellant and against the respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance, the draft copy of the lead judgment delivered by my learned brother, Hon. Justice C. Ifeoma Jombo-Ofo, JCA I agree with the reasoning and conclusions reached in the lead judgment.

The learned Counsel’s complaint on issue one (1) is about the Affidavit Evidence of DW1 that runs contrary to Section 117(4) of the Evidence Act, 2011 which provides as follows:-
“(4) An Affidavit when sworn shall be signed by the deponent if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken.”
A party who deposes to an affidavit is

known as “the witness” or “deponent”. See Section 115(1) and 117(1)(b) of the Evidence Act, 2011. The Supreme Court has held in BAMAIYI VS. THE STATE (2001) FWLR (PT. 46) 956 AT 978 PER UWAIFO, JSC that “An affidavit meant for use in the Court stands as evidence and must, as near as possible, conform to oral evidence admissible in Court. The affidavit must be confined with facts and circumstances bearing in mind the issues in controversy or in dispute. The learned trial Judge will then use the documentary exhibits to evaluate the oral evidence adduced in the affidavits of the parties.” See also FASHANU VS. ADEKOYA (1974) 9 NSCC 327 AT 331; OLUJINLE VS. ADEAGBO (1988) 2 NWLR (PT.75) 238 AT 253: OSCAR REYNARDS VS. WILLIAM ALLAN (1934) 2 WACA 52 AT 53; KIMDEY VS. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (PT. 77) 445/473
The Apex Court further held in EMMANUEL UGBOJI VS. THE STATE (2017) LPELR-43427 (SC) PER EKO, JSC AT PAGES 60-61 PARAS. E-A that: “Non-compliance with mandatory provisions of a Statute has the consequence of rendering the proceedings or the act done pursuant thereto a nullity. It is a fundamental defect that is not a mere

irregularity, but an illegality. See SANMABO VS. THE STATE (1967) NMLR 314 AT 317; SALAMI OLONJE VS. I.G.P. (1955-56) WRNLR 1; AMOKEODO VS. I.G.P. (1999) 6 NWLR (PT.607) 467; THE STATE VS. GWONTO (1983) NSCC 104…”
This Court held in GEORGE IKELI & ANOR. VS. TERUNGWA AGBER (2014) LPELR-22653 (CA) PER OGBUINYA, JCA AT PAGE 38 PARAS. B-C thus: “In the province of the law, an unsigned document commands no judicial value of validity. See OMEGA BANK VS. O.B.C. (2005) 1 SCNJ 150/(2005) 8 NWLR (PT.928) 547; JINADU VS. ESUROMBI-ARO (2009) 9 NWLR (PT. 1145) 55…”
In MCFOY VS. UNITED AFRICA CO. LTD. (1961) 3 ALL E.R. 1169, LORD DENNING HELD AT PAGE 1172 that:
“…If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though, it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to Stay there. It will collapse. So will this judgment collapse if the statement of claim

was a nullity.”
See also AKINFOLARIN VS. AKINNOLA (1994) 4 SCNJ (PT. 1) 30 AT 48-49; ALADEGBEMI VS. FASANMADE (1988) 3 NWLR (PT.81) 129; ROSSEK VS. ACB LTD. (1993) 8 NWLR (PT. 312) 382.
The Respondent’s Witness (DW1), having failed to satisfactorily comply with the format prescribed by Section 117(4) of the Evidence Act, 2011, the Affidavit Evidence of DW1 is defective and incompetent along with the evidence elicited under cross-examination in the lower Court which are discountenanced and expunged from the Record of Appeal.

There is no doubt that the Appellant (then Plaintiff) entered into contract with the Respondent (then Defendant) and to constitute a binding contract, there must be an agreement of the mind otherwise, consensus ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party, in a simple contract, not under seal, must be supported by consideration. Furthermore, there must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled. See ALFOTRIN LIMITED VS. THE ATTORNEY-GENERAL OF THE FEDERATION & ANOR.

(1996) LPELR-414 (SC) PER IGUH, JSC AT PAGES 29-30, PARAS. B-A; (1996) 9 NWLR (PT.475) 634.
In the recent case of the Apex Court in ATIBA IYALAMU SAVINGS & LOANS LIMITED VS. MR. SIDIKU AJALA SUBERU & ANOR. (2018) LPELR-44069 (SC), KEKERE-EKUN, JSC HELD AT PAGES 18-19, PARAS. C-A that: “It is trite, as rightly submitted by learned Counsel for the Appellant, that, for there to be a binding contract between parties, they must be in consensus ad idem with regard to the essential terms and conditions thereof. The parties must intend to create legal relations and the promise of each party in a simple contract, not under seal, must be supported by consideration. There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled. See ALFOTRIN LTD. VS. A.G FEDERATION & ANOR (1996) 9 NWLR (PT.475) 634 AT 656 H; DANGOTE GEN. TEXTILE PRODUCTS LTD. & ORS. VS. HASCON ASSOCIATES NIG. LTD. & ANOR. (2013) 12 SCNJ 456; AKINYEMI VS. ODU’A INVESTMENT CO. LTD. (2012) 1 SCNJ 127; BILANTE INTERNATIONAL LTD. VS. NDIC

(2011) 15 NWLR (PT. 1270) 407 AT 423 C-F; BPS CONSTRUCTION & ENGINEERING CO. LTD. VS. F.C.D.A. (2017) 1 SC (PT.II) 125 AT 146-148.”

The Appellant (then Plaintiff) instituted the action against the Respondent (then the Defendant) in the lower Court for the recovery of debt as a result of the contract between the parties as envisaged in Exhibit “1” and a demand letter Exhibit “4”. What is a debt? JOWITT’S DICTIONARY OF ENGLISH LAW, 2ND EDITION, VOL.1, 1997, PAGE 562 TO 564 DEFINES A “DEBT” as follows: “Debt — (Lat. debitum), a sum of money due from one person to another (Fitx. N.B. 119g; 2 BI.Comm. 464). Action of debt lay where a person claimed the recovery of a liquidated or certain sum of money affirmed to be due to him; it was generally founded on some contract alleged to have taken place between the parties, or on some matter of fact from which the law would imply a contract between them. This was debt in the debet, which was the principal and only common form. There is another species mentioned in the books, called debt in the detinet, which lay for the specific recovery of goods, under a contract to deliver them. An action of

debt as a technical term is now obsolete…”
The Court also held in ECO BANK PLC VS. HON. LUKPATA JOHN UDO (2012) LPELR-13926 (CA) PER TUR, JCA AT PAGES 13-14 PARAS. B-A thus: “A ‘debt’ is defined as …a specific sum of money due by agreement or otherwise. See Black’s Law Dictionary, 8th edition, p.432 where the learned authors referred to Benjamin, J. Shipman Handbook of Common-Law Pleading edited by Henry Winthrop Ballantine, 3rd edition, 1923 paragraph 52 page 132 where the learned author wrote that: “The action of debt lies where a party claims the recovery of a debt; that is, a liquidated or certain sum of money to due him. The action is based upon contract, but the contract may be implied, either in fact or in law, as well express; and it may be either a simple contract or a specialty. The most common instances of its use are for debts: (a) upon unilateral contracts express or implied in fact (b) upon quasi-contractual obligations having the force and effect of simple contracts (c) upon bonds and covenants under seal (d) upon judgment, or obligations of record (e) upon obligations imposed by statute.”

Based on the foregoing, it is my

candid opinion that the Appellant has established that there was a substantial wrong or miscarriage of justice occasioned him in the Court below which warrants this Court to interfere with the verdict of the learned trial Judge rendered in favour of the Respondent. Consequently, the decision of the lower Court cannot stand and the proper order to make is to allow this Appeal and set aside the decision of the learned trial Judge, Hon. Justice T.A. Igoche, J. delivered on the 13th day of April, 2017. I also abide by the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother CORDELIA IFEOMA JOMBO-OFO, JCA and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.

My lord considered the issues donated for resolution and I have nothing more to add. I adopt the judgment as mine and abide by all the other orders made therein.

Appearances:

O. Fagbemi, Esq. with him A. T. Hassan, Esq. For Appellant(s)

D. Swem, Esq. For Respondent(s)