AJIRO AND SONS (NIG) LTD & ORS v. UNITY BANK (2021)

AJIRO AND SONS (NIG) LTD & ORS v. UNITY BANK

(2021)LCN/15164(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, March 12, 2021

CA/AS/58/2017

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. AJIRO AND SONS NIGERIA LIMITED 2. PRINCE EJIRO ERHENEDE 3. EMILY ERHENEDE 4. MAUREEN ERHENEDE APPELANT(S)

And

UNITY BANK PLC RESPONDENT(S)

RATIO

WHAT IS AN ARBITRATION CLAUSE IN A CONTRACT

WHETHER AN AGREEMENT TO HAVE RECOURSE TO ARBITRATION IN THE EVENT OF A DISPUTE WILL OUST THE JURISDICTION OF THE COURT; CONDITION THAT MUST BE SATISFIED FOR THE COURT TO EXERCISE ITS POWER UNDER SECTION 5 OF THE ARBITRATION ACT

In MAINSTREET BANK CAPITAL LTD v. NIGERIA REINSURANCE CORPORATION PLC (2018) 14 NWLR (PT. 1640) 423, 440 -445 Kekere-Ekun, JSC, did set out the law on this point thus:- “The Lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In OBEMBE v. WEMABOD ESTATES LTD (1977) 5 SC (Reprint) 70 at 79 line 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus:- “As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission (see HARRIS v. REYNOLDS (1845) 7 QB 71). At common law, the Court has no jurisdiction to stay proceedings: Where however, there is a provision in the agreement, as in exhibit 3, for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its power under Section 5 of the Arbitration Act.” Continuing at page 445, his lordship referred to KANO STATE URBAN DEVELOPMENT BOARD v. FANZ CONSTRUCTION CO. LTD (1990) 4 NWLR (PT. 142) 28 where Agbaje, JSC, stated:-
“It appears therefore to me that it is in the Court that the jurisdiction to try cases is vested. However, in the exercise of that jurisdiction, the Court has power to stay proceedings in an action brought to it in breach of an agreement to settle the matter by arbitration. The exercise of this power is regulated by statute, which gives the Court this power. In my judgment therefore, the exercise of the power to stay proceedings is a matter within the exercise of the jurisdiction of the Court to try the case itself.” His lordship concluded thus still at page 445:- “It follows that since the jurisdiction of the Court is not ousted by the arbitration clause, the provision of ACA will apply, as the party against whom the suit is brought insists that the arbitration clause in the agreement between the parties must be complied with, the Court, pursuant to Section 5 (1) of the ACA has power to stay proceedings before it pending a reference of the dispute to arbitration. In other words, since an arbitration clause does not oust the jurisdiction of the Court, an objection to the jurisdiction of the Court is in effect an application to stay proceedings pending arbitration.” Section 5 (1) of the Arbitration and Conciliation Act which has been quoted herein before requires that an application to stay proceedings must be made before delivery of pleading or the taking of any other step in the proceedings. Where a party takes a step in the proceedings such as delivery of statement of defence, application for extension of time etc he cannot be granted a stay of proceedings as he will be deemed to have waived his right to insist on recourse to arbitration. See MAINSTREET BANK CAPITAL LTD v. NIGERIA REINSURANCE CORPORATION PLC supra 445. PER JOSEPH EYO EKANEM, J.C.A.

EFFECT OF AN UNAPPEALED RULING OF THE TRIAL COURT

… since the appellants did not appeal or have not appealed against the ruling of the trial Court refusing the application for stay of proceedings, the decision has been accepted by them and it remains binding on them. See ONIBUDO v. AKIBU(1982) 7 SC 60 and CHUDI VERDICAL CO. LTD v. IFESINACHI INDUSTRIES (NIG) LTD (2018) 16 NWLR (PT. 1646) 520, 537. PER JOSEPH EYO EKANEM, J.C.A.

EFFECT OF THE DETERMINATION OF AN ISSUE ON THE COURT WHO DECIDED THE ISSUE

Once an issue has been raised and determined between litigating parties, the Court becomes functus officio to either direct or allow the parties to re-open the issue before it under any guise or subterfuge for re-litigation or re-consideration. See IHEDIOHA v. OKOROCHA (2016) 1 NWLR (PT. 1492) 147, 173 and DINGYADI v. INEC (NO. 2) (2010) 18 NWLR (PT. 1224) 154, 186. PER JOSEPH EYO EKANEM, J.C.A.

POSITION OF THE LAW AGAINST DOUBLE COMPENSATION

It is indeed trite that the law frowns at double compensation. In BRITISH AIRWAYS v. ATOYEBI (2014) 13 NWLR (PT. 1424) 253, 289 the Supreme Court per Kekere-Ekun, JSC, re-stated the law thus:- “The law is that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head.” See also ONAGA v. MICHO & CO. (1961) ALL NLR 324, 308, TSOKWA MOTORS (NIG) LTD v. UNITED BANK FOR AFRICA PLC (2008) 2 NWLR (PT. 1071) 341 and AGU v. GENERAL OIL LIMITED (2015) 17 NWLR (PT. 1488) 327. As can be seen from the above re-iteration of the law, the law against double compensation deals with a situation where a person is fully compensated under one head of damages for a particular injury and again being awarded damages in respect of the same injury under another head. PER JOSEPH EYO EKANEM, J.C.A.

EFFECT OF THE TERMS OF A VALID CONTRACT ON THE PARTIES THERETO

Parties are bound by the agreements they freely enter into and it will be very dangerous to allow a man escape the legal effect of a document he has signed in the absence of express misrepresentation or fraud. See BLAY v. POLLARD (1930) IKB 628, OSUN STATE GOVERNMENT v. DALAMI (NIG) LTD (2007) 148 LRCN 1311, ATTORNEY-GENERAL OF RIVERS STATE v. ATTORNEY-GENERAL OF AKWA IBOM STATE (2011) 8 NWLR (PT. 1248) 31 and OBANYE v. UBN PLC (2018) 16 NWLR (PT. 1646) 506. The Court, in case of a dispute regarding an agreement entered into by parties, is only to pronounce on the terms of the contract and enforce the same. PER JOSEPH EYO EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the High Court of Delta State, Ughelli Judicial Division (the trial Court) delivered on 11/1/2017 in suit No. UHC/18/2014 by F. O. OWHO, J. In the judgment, the trial Court found in favour of the respondent and ordered that:-
(1) The 1st appellant pays to the respondent the sum of N89,097,420.59 being debt owed the respondent by the 1st appellant.
(2) The judgment debt shall attract pre-judgment interest and post-judgment interest of 28% per annum and 20% per annum, respectively.
(3) The respondent takes possession of three landed properties mortgaged by the 2nd appellant to the respondent.

Aggrieved by the decision, the appellant filed two notices of appeal against the same to this Court. The first notice of appeal was filed on 12/1/2017 while the second notice of appeal was filed on 2/2/2017.

The facts of the case leading to this appeal are that upon the application of the 1st appellant, a customer of the respondent at its Ughelli, Delta State, Branch, the respondent agreed to and did issue a bank

guarantee in the sum of N94,500,000.00 on behalf of the 1st appellant in favour of the Urban Development Bank of Nigeria Plc (now known as Infrastructure Bank Plc) to enable the said 1st appellant access the sum of N94,500,000.00 in Urban Development Bank of Nigeria Plc for the purchase of brand new Toyota Hiace Standard Roof buses and Nissan Urvan buses under the Public Mass Transit Revolving Fund Scheme of the said Infrastructure Bank. The 1st appellant secured the guarantee with a legal mortgage on three landed properties of the 2nd appellant located in Ughelli, Delta State and the individual personal guarantees of the 2nd, 3rd and 4th appellants. As a result of the guarantee by the respondent, the Infrastructure Bank Plc made the sum of N94,500,000.00 available to the 1st appellant. The 1st appellant was required to pay the guaranteed sum and accrued interest in thirty-six monthly installments of N2,625,000.00.

The 1st appellant did not adhere to the terms of repayment of the facility. Consequently, the Infrastructure Bank wrote to the 1st appellant for the payment of the outstanding sum of N90,230,997.18. When the 1st appellant delayed in paying the

said sum, the respondent was compelled to pay the sum of N82,597,420.59 to the said Infrastructure Bank and the said amount was in accordance with Banking Practice debited to the 1st Appellant’s account with the respondent at its Ughelli Branch.

Apart from the foregoing, the 1st appellant was granted an overdraft facility to the tune of N6,500,000.00 by the respondent to enable it pay statutory fees to the Infrastructure Bank. The 1st appellant defaulted in the repayment of the overdraft. After several failed demands for payment of the debt due and owed by the appellants, the respondent sued the appellants at the trial Court, claiming as follows:-
“(i) AN ORDER directing the 1st Defendant to pay the sum of N94,172,274.63 with accrued interest thereto to the Claimant being the debt owed the Claimant by the 1st Defendant..
(ii) A DECLARATION that the 2nd, 3rd and 4th Defendants having guaranteed the Bank Guarantee issued by the Claimant on behalf of the 1st Defendant, are liable to pay the Claimant, the sum of N94,172,274.63 debit now outstanding in the account of the 1st Defendant with the Claimant, the 1st Defendant having defaulted

in the repayment of the loan granted it by Urban Development Bank (The Infrastructure Bank Plc) and Guaranteed by the Claimant and N6.5m (Six Million, Five Hundred Thousand Naira) overdraft granted to it also by the Claimant.
(iii) AN ORDER directing the Defendants to pay to the Claimant the sum of N94,172,274.63 with accrued interest of 32% or such rate as may from time to time be applied on the money due and payable to the Claimant from the date of filling this suit until judgment is delivered by this Honourable Court and thereafter 32% or such applicable rate of interest until the judgment sum is paid in full by the Defendants.
(iv) A DECLARATION that the properties situate at:-
a) No. 5 Prince Ejiro Drive Otovwodo, Ughelli covered by Certificate of Occupancy No. DTSR 12607 registered as 2/2/CO142 at the Lands Registry, Asaba, Delta State;
b) No. 6, Prince Ejiro Drive, Otovwodo, Ughelli covered by Certificate of Occupancy No. DTSR 1466 registered as 33/33/CO142 at the Lands Registry, Asaba, Delta State;
c) Agharagbowhovie Layout, Otovwodo, Off Ughelli-Patani Road, Near Coco Cola Bottling Company, Ughelli covered by Certificate of

Occupancy No. DTSR 12515 registered as 32/32/CO142 at the Lands Registry, Asaba, Delta State.
are covered by a valid Deed of Legal Mortgage dated March 13, 2013 registered as 28/28/MT38 at the Lands Registry, Asaba, Delta State between the Claimant, 1st and 2nd Defendants.
(v) AN ORDER for possession of the said properties mortgaged to the Claimant.”

The appellants denied the exact amount claimed by the respondent. They averred that the 2nd, 3rd and 4th appellants did not guarantee the overdraft facility and are not liable to pay the sum of N6,500,000.00 and accrued interest. It was also their contention that the personal guarantees of the 2nd to 4th appellants were invalid and that the deed of legal mortgage was a fraud.

After hearing and taking of addresses, the trial Court, as earlier stated, found in favour of the respondent and entered judgment in its favour in the terms earlier set out in this judgment.

Pursuant to the rules of this Court, appellants filed their brief of argument on 6/10/2017 and the same was deemed filed on 10/3/2020. The respondent filed its brief of argument on 8/11/2017 and the same was deemed filed on 10/3/2020.

At the hearing of the appeal on 20/1/2021, F. O. OLOKOR, Esq, for the appellants informed the Court that he was relying on the notice of appeal filed on 2/2/2017. He adopted and relied on appellants’ brief of argument in urging the Court to allow the appeal, set aside the judgment of the trial Court and dismiss the suit of the respondent.
S. O. ONOKPACHE, Esq, for the respondent adopted and relied on the respondent’s brief of argument in urging the Court to dismiss the appeal and affirm the decision of the trial Court.

Since appellants are relying on the notice of appeal filed on 2/2/2017, the notice of appeal filed on 12/1/2017 stands abandoned and I accordingly strike out the same.
In the appellants’ brief of argument, the following issues have been formulated for the determination of the appeal:-
“(i) WHETHER HAVING REGARD TO THE ARBITRATION CLAUSE IN CLAUSE TWENTY-ONE (21) OF THE RESPECTIVE LETTERS OF PERSONAL GUARANTEE OF THE 2ND – 4TH DEFENDANTS IN FAVOUR OF THE CLAIMANT AND CLAUSE SIXTEEN (16) OF THE THIRD PARTY LEGAL MORTGAGE ENTERED INTO BY THE 1ST & 2ND DEFENDANTS WITH THE

CLAIMANT THE LOWER COURT HAD THE JURISDICTION TO ENTERTAIN AND DETERMINE THIS SUIT/ACTION WITHOUT FIRST REFERRING SAME TO ARBITRATION? Ground 1.
(ii) WHETHER THE AWARD BY THE LEARNED TRIAL JUDGE OF THE SUM OF N89,097,420.59 (EIGHTY-NINE MILLION, NINETY SEVEN THOUSAND, FOUR HUNDRED AND TWENTY NAIRA, FIFTY NINE KOBO) IN FAVOUR OF THE RESPONDENT AND A FURTHER ORDER THAT THE RESPONDENT TAKES POSSESSION OF THE 2ND APPELLANT’S THREE PROPERTIES MORTGAGED TO THE RESPONDENT AS SECURITY FOR THE BANK GUARANTEE ISSUED BY THE RESPONDENT TO THE INFRASTRUCTURE BANK PLC ON BEHALF OF 1ST APPELLANT DID NOT AMOUNT TO DUOBLE COMPENSATION? Ground 3.
(iii) WHETHER THE TREATMENT OF THE EVIDENCE OF DW2 BY THE LEARNED TRIAL JUDGE AS UNRELIABLE AND REFUSAL TO CONSIDER EXHIBIT “D1” TENDERED BY THE DW2 AS AN AUDIT REPORT DID NOT OCCASION A MISCARRIAGE OF JUSTICE? Grounds 5 & 6.”

Respondent’s counsel distilled the following issues for the determination of the appeal:-
“(1) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE REJECTED THE APPELLANTS ARGUMENT THAT THE COURT LACKED JURISDICTION TO ENTERTAIN THE SUIT HAVING REGARD TO

THE FACT THAT THE COURT HAD EARLIER RULED ON THE MATTER AND THE APPELLANTS PROCEEDED TO PARTICIPATE IN THE TRIAL.
(2) WHETHER THE LEARNED TRIAL JUDGE WAS NOT RIGHT TO HAVE MADE AN ORDER FOR POSSESSION OF THE THREE PROPERTIES MORTGAGED AS SECURITY FOR THE DEBT OWED TO THE RESPONDENT AFTER AWARDING THE SUM OF N89,097,420,59 TO THE RESPONDENT.
(3) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE HELD THAT DW2 WAS NOT A RELIABLE WITNESS AND THAT THE CONTENTS OF EXHIBIT D1 WERE UNPROVEN.”

The two sets of issues are in substance the same. I shall therefore be guided by the issues as formulated by appellants counsel but with slight modifications to reflect the correct nomenclature of the parties in this Court.

ISSUE 1
Whether having regard to the arbitration clause in Clause twenty-one (21) of the respective letters of personal guarantee of the 2nd – 4th appellants in favour of the respondent and Clause sixteen (16) of the third party legal mortgage entered into by 1st and 2nd appellants with the respondent, the trial Court had the jurisdiction to entertain and determine this suit/action without first referring same to arbitration.

Appellants’ counsel contented that the trial Court lacked the jurisdiction to entertain and determine the suit without first referring the same to arbitration. He submitted that the issue of competence or jurisdiction is fundamental as a decision made without jurisdiction is a nullity. He referred to clause 21 of Exhibits 1, 2 and 3, namely: respective letters of personal guarantee of 2nd – 4th appellants and clause 16 of Exhibit 7, to wit; third party legal mortgage which contain arbitration clauses. Counsel also referred to Sections 4 (1) and 5 (1) of the Arbitration and Conciliation Act. He stated that the appellants timeously applied to the trial Court to stay proceedings in the action before it pending reference to and determination of the dispute by an arbitration panel. He noted that the application which was contested was refused by the trial Court. He stated that in their joint statement of defence and final address, the appellants raised the issue again, and that the trial Court held that its jurisdiction was not ousted by the arbitration clause and the Arbitration and Conciliation Act.

Counsel argued that the issue of jurisdiction can be raised for the first time at any stage of a proceeding. It was his further argument that though, Courts of law have jurisdiction to decide disputes between parties, where parties by their agreement opt for arbitration, the Courts will always respect such agreements and decline jurisdiction. He called in aid OBEMBE v. WEMABOD ESTATES LTD (1977) 5 SC 131. He stressed the point that the use of the word “shall” in the arbitration clause creates a mandatory reference to arbitration.

For the respondent, it was noted by its counsel that the appellants did not appeal against the ruling of the trial Court refusing the application for reference to arbitration. The result, he stated, is that it remains subsisting and binding on the parties. He posited that the Arbitration and Conciliation Act does not oust the jurisdiction of the trial Court but that Section 5 (1) of the Act creates only a procedural defence which is a personal right which can be waived. He stated that the appellants after their application was refused, proceeded to file their joint statement of defence and fully participated in the trial. He contended that the appellants thus waived their right to stay of proceedings.

RESOLUTION
Clause 21 of the letters of personal guarantee (Exhibits 1, 2 and 3) states:-
“We hereby agree that any dispute in respect of this agreement which cannot be settled amicably shall be referred to an Arbitrator to be mutually agreed to by the Guarantor(s) and the Bank, or failing such agreement, to an Arbitrator appointed by the Chief Judge of Abuja High Court upon application by either party to him and the Arbitration proceeding shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act 2004 or any statutory modification or enactment thereof for the time being in force PROVIDED THAT nothing herein contained shall preclude or be deemed to preclude the Bank from exercising any statutory or legal right it may have over any assets and or monies of the Guarantor(s) pursuant to clause 16 hereof or exercise of the Bank’s right of instituting a recovery case against the Principal and the Guarantor(s) jointly and severally before any competent Court.”

Clause 16 of the third party legal mortgage (Exhibit 7) entered into by the 1st and 2nd appellants with the respondent also contains provision for reference of any dispute which cannot be settled amicably to an arbitrator.

On account of the above, appellants’ counsel posited that the trial Court lacked the jurisdiction to entertain and determine the suit without first referring the same to arbitration. Respondent’s counsel took a contrary position.

Section 4 (1) of the Arbitration and Conciliation Act provides that:-
“A Court before which an action, which is the subject of an arbitration agreement is brought shall, if any party so requests not later than when submitting his first statement on the substance of the dispute, order a stay of proceedings and refer the parties to arbitration.”
Section 5 (1) of the Arbitration and Conciliation Act states:-
“If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any after appearance and before delivering any pleadings or taking any further steps, apply to the Court to stay proceedings.”

An arbitration clause in a contract, as in this instance, is only a procedural provision whereby the parties agree that disputes be submitted to arbitration. It does not exclude or limit rights or remedies of parties, but simply provides a procedure by which the parties may settle their agreement. See ONYEKWULUJE v. BENUE STATE GOVERNMENT (2015) 16 NWLR (PT. 1484) 40, 71 -72. That being so, an agreement to have recourse to arbitration in the event of a dispute even if worded in mandatory terms does not oust the jurisdiction of the Court. In MAINSTREET BANK CAPITAL LTD v. NIGERIA REINSURANCE CORPORATION PLC (2018) 14 NWLR (PT. 1640) 423, 440 -445 Kekere-Ekun, JSC, did set out the law on this point thus:-
“The Lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In OBEMBE v. WEMABOD ESTATES LTD (1977) 5 SC (Reprint) 70 at 79 line 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus:-
“As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one

referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission (see HARRIS v. REYNOLDS (1845) 7 QB 71). At common law, the Court has no jurisdiction to stay proceedings: Where however, there is a provision in the agreement, as in exhibit 3, for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its power under Section 5 of the Arbitration Act.”
Continuing at page 445, his lordship referred to KANO STATE URBAN DEVELOPMENT BOARD v. FANZ CONSTRUCTION CO. LTD (1990) 4 NWLR (PT. 142) 28 where Agbaje, JSC, stated:-
“It appears therefore to me that it is in the Court that the jurisdiction to try cases is vested. However, in the exercise of that jurisdiction, the Court has power to stay proceedings in an action brought to it in breach of an agreement to settle the matter by arbitration. The exercise of this power is regulated by statute, which gives the Court this power. In my judgment therefore, the exercise of the power to stay proceedings is a matter within the exercise of the jurisdiction of the Court to try the case itself.”

His lordship concluded thus still at page 445:-
“It follows that since the jurisdiction of the Court is not ousted by the arbitration clause, the provision of ACA will apply, as the party against whom the suit is brought insists that the arbitration clause in the agreement between the parties must be complied with, the Court, pursuant to Section 5 (1) of the ACA has power to stay proceedings before it pending a reference of the dispute to arbitration. In other words, since an arbitration clause does not oust the jurisdiction of the Court, an objection to the jurisdiction of the Court is in effect an application to stay proceedings pending arbitration.”
Section 5 (1) of the Arbitration and Conciliation Act which has been quoted herein before requires that an application to stay proceedings must be made before delivery of pleading or the taking of any other step in the proceedings. Where a party takes a step in the proceedings such as delivery of statement of defence, application for extension of time etc he

cannot be granted a stay of proceedings as he will be deemed to have waived his right to insist on recourse to arbitration. See MAINSTREET BANK CAPITAL LTD v. NIGERIA REINSURANCE CORPORATION PLC supra 445.
In the instant matter, the appellants before taking any step in the proceedings and after entering conditional appearance applied to the trial Court to stay proceedings pending reference to and determination of the dispute by arbitration. In its ruling the learned trial Judge held that there was no dispute and therefore the idea of reference to arbitration did not arise. It found no merit in the application and therefore refused it. The appellants did not appeal against that decision; rather they filed a joint statement of defence, list of witnesses and their depositions, list of and copies of documents. They partook actively in the pre-trial conference through their counsel. A pre-trial conference report was issued in which the case was fixed for trial. Hearing was conducted during which respondent testified via CW1 who was cross-examined rigorously by appellants’ counsel. The appellants testified via DW1, DW2 and DW3. Counsel for the parties

filed and adopted their addresses, with the appellants’ counsel urging the Court to dismiss the case of the respondent.
An implication of the foregoing narrative is that since the appellants did not appeal or have not appealed against the ruling of the trial Court refusing the application for stay of proceedings, the decision has been accepted by them and it remains binding on them. See ONIBUDO v. AKIBU(1982) 7 SC 60 and CHUDI VERDICAL CO. LTD v. IFESINACHI INDUSTRIES (NIG) LTD (2018) 16 NWLR (PT. 1646) 520, 537. A further implication is that the appellants took steps to and indeed did defend the matter. They therefore waived their right to insist on recourse to arbitration.
Admittedly, in his final address at the trial Court, appellants’ counsel again raised the issue of the arbitration clause as a matter of jurisdiction. This was an invitation by the counsel for the trial Court to sit on appeal over its earlier decision that had not been appealed against. Once an issue has been raised and determined between litigating parties, the Court becomes functus officio to either direct or allow the parties to re-open the issue before it under

any guise or subterfuge for re-litigation or re-consideration. See IHEDIOHA v. OKOROCHA (2016) 1 NWLR (PT. 1492) 147, 173 and DINGYADI v. INEC (NO. 2) (2010) 18 NWLR (PT. 1224) 154, 186.
The learned trial Judge found as follows in respect of the issue:-
(i) that the ruling is a final order of the Court which only a higher Court can set aside;
(ii) that the appellants waived their right to insist on arbitration; and
(iii) that the appellants cannot question the regularity of the trial by reason of estoppel by conduct.
I have examined the grounds of appeal in the extant notice of appeal. There is no ground of appeal which challenges the above findings. The effect therefore is that the findings have been accepted by them and they remain binding on them. The findings operate against the appellants in respect of this issue. Furthermore, and as I have already held, the arbitration clause does not raise a jurisdictional issue and since appellants had waived their right to insist on recourse to arbitration they cannot seek to reverse the same by raising it as a jurisdictional issue.

In the light of the foregoing, I enter an affirmative answer to issue 1 and resolve it against the appellants.

ISSUE 2
Whether the award by the learned trial Judge of the sum of N89,097,420,59 in favour of the respondent and a further order that the respondent takes possession of the 2nd appellant’s three properties mortgaged to the respondent as security for the bank guarantee issued by the respondent to the Infrastructure Bank Plc on behalf of 1st appellant did not amount to double compensation.

Appellants’ counsel straightaway gave an affirmative answer to the issue. He set out the reliefs claimed by the respondent and its pleading in paragraphs 6-7 of the amended statement of claim. He submitted that it was clear that the properties of the 2nd appellant were mortgaged as further security to the respondent for the bank guarantee issued by the respondent to Infrastructure Bank Plc on behalf of the 1st appellant. He contended that the order of forfeiture of the properties used as security for the transaction which gave rise to the award of the sum of N89,097,420.59 amounted to double compensation as the respondent had been adequately compensated with the said judgment sum. He

submitted further that the law frowns against double compensation citing TEXACO (NIG) PLC v. KEHINDE (2002) FWLR (pt. 94) 143 among other cases. He urged the Court to set aside the award.

Respondent’s counsel stated that in clause 13 of Exhibit 7, it was agreed that in the event of default in repayment of the debt owed by the 1st appellant to the respondent, the respondent should take possession of the mortgaged properties as the 2nd appellant had by consent become a tenant of the respondent. He submitted that it is the Court’s duty to give effect to agreements lawfully entered by parties and that the order of possession is not a case of double compensation but an enforcement of agreement of the 1st and 2nd appellants with the respondent.

RESOLUTION
It is indeed trite that the law frowns at double compensation. In BRITISH AIRWAYS v. ATOYEBI (2014) 13 NWLR (PT. 1424) 253, 289 the Supreme Court per Kekere-Ekun, JSC, re-stated the law thus:-
“The law is that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another

head.” See also ONAGA v. MICHO & CO. (1961) ALL NLR 324, 308, TSOKWA MOTORS (NIG) LTD v. UNITED BANK FOR AFRICA PLC (2008) 2 NWLR (PT. 1071) 341 and AGU v. GENERAL OIL LIMITED (2015) 17 NWLR (PT. 1488) 327.
As can be seen from the above re-iteration of the law, the law against double compensation deals with a situation where a person is fully compensated under one head of damages for a particular injury and again being awarded damages in respect of the same injury under another head. In this matter, what arose is not a case of double compensation but the Court giving effect to and enforcing a term of the contract freely and voluntarily entered into by the 2nd appellant who is now complaining about the award.
Clause 13 of Exhibit 7, the guarantee signed by the 2nd appellant, is in the following terms:-
“The surety/mortgagor hereby attorn and become tenant from month to month to the Bank of such part of the Mortgaged Property as is in the occupation of the surety/mortgagor at the monthly rent of a pepper-com if demanded PROVIDED ALWAYS that the Bank may at any time after its power of sale has become exercisable without giving any

previous notice enter into and upon and take possession of the premises whereof the surety/mortgagor has attorned tenant and determine the tenancy thereby created PROVIDED also that neither the receipt (if any) of the said rent or the tenancy created by the said attainment (sic) shall render the Bank liable to account as mortgagee in possession.”
Parties are bound by the agreements they freely enter into and it will be very dangerous to allow a man escape the legal effect of a document he has signed in the absence of express misrepresentation or fraud. See BLAY v. POLLARD (1930) IKB 628, OSUN STATE GOVERNMENT v. DALAMI (NIG) LTD (2007) 148 LRCN 1311, ATTORNEY-GENERAL OF RIVERS STATE v. ATTORNEY-GENERAL OF AKWA IBOM STATE (2011) 8 NWLR (PT. 1248) 31 and OBANYE v. UBN PLC (2018) 16 NWLR (PT. 1646) 506. The Court, in case of a dispute regarding an agreement entered into by parties, is only to pronounce on the terms of the contract and enforce the same. Since the respondent was empowered by clause 13 of Exhibit 7 to enter into and take possession of the premises upon the respondent’s power of sale becoming exercisable, the trial Court acted

rightly in granting relief No. V for an order for possession of the mortgaged properties in favour of the respondent. The 2nd appellant cannot seek to escape the legal effect of clause 13 of Exhibit 7 by contending that the award amounts to double compensation.
I enter a negative answer to issue 2 and resolve it against the appellants.

ISSUE 3
“Whether the treatment of the evidence of DW2 by the learned trial Judge as unreliable and the refusal to consider Exhibit D1 tendered by the DW2 as an audit report did not occasion a miscarriage of justice.”
Appellants’ counsel referred to the reasoning of the learned trial Judge in rejecting the evidence of DW2 and Exhibit D1 tendered through him. He also referred to the pleading of the appellants and the written deposition of the witness which he adopted as his evidence-in-chief. He submitted that the DW2 in his adopted deposition graphically demonstrated in open Court the content of Exhibit D1 as an expert. It was his argument that the respondent failed to call expert evidence to challenge the evidence of DW2. He contended that the rejection of the evidence of the witness and

his audit report by the trial Court was unsupportable for the reasons that he set out in his brief. He added that the only witness of the respondent admitted that she was not a chartered accountant or auditor but rather holds a degree in English, and also admitted that she had never worked in the internal audit of the respondent. He urged the Court to hold that the evidence of DW2 was uncontroverted and therefore should have been accepted by the trial Court.

Respondent’s counsel, on his part, referred to Exhibits 1, 2, 3 and 7 which were signed by DW2 as a witness and urged the Court to look at the relationship between him and the appellants. He noted that Exhibit D1 was made on 17/3/2014 while the suit was filed on 7/2/2014. He stated that inspite of a promise in a letter to reconcile 1st appellant’s account to ascertain its indebtedness, the appellants did not do so until after the respondent filed the suit. He noted that the DW2 admitted that respondent issued a bank guarantee on behalf of 1st appellant and that the 1st appellant defaulted in the payment of monies guaranteed by the respondent. He further stated that inspite of this, he

(DW2) omitted to look at Exhibit 13 (the offer letter for the guarantee) and proceeded to look at only the documents given to him by the appellant to write a tainted report. He argued that it was clear that DW2 did not see any letter authorizing the respondent to debit the account of the 1st appellant. He stated that it was obvious that the DW2 did not approach the respondent to find out why the 1st appellant’s account was debited with the sum of N82,557,420.59. He referred to Exhibit 13 which he said showed that the 1st appellant and respondent had envisaged that the bank guarantee may crystallize and consequently, provided interest rate that would apply. He therefore expressed surprise that the DW2 did not see any authorization for the debiting of the 1st appellant’s account with the sum of N82,597,420.59. He argued that the evidence of DW2 and the audit report are tainted with bias and cannot be said to be the evidence of an expert.
He concluded by submitting that the audit report was dumped on the Court.

RESOLUTION
Exhibit D1 is a letter dated 17/3/2014 titled “Re-Investment of Ajiro and Sons Company Nigeria Limited of

Unity Bank Plc.” It is addressed to the Managing Director of the 1st appellant. It is a report of investigation of the account of the 1st appellant with the respondent by Jacob Ogbodu & Co, a firm of Chartered Accountants. The document is signed by Jacob Ogbodu who testified as DW2 and through whom it was tendered in evidence.

The learned trial Judge held that Exhibit D1 was unreliable on the following account:-
(i) that the contents of the document were not examined and brought out in open Court; and
(ii) that the investigations carried out by DW2 were one-sided and that there was no evidence that DW2 ever visited the respondent or the Infrastructure Bank Plc.

In paragraphs 7-12 of the joint statement of defence of the appellant the appellants pleaded in detail facts relating to Exhibit D1 including the findings set out in the report. The witness deposition of the author of the report, Mr. Jacob Ogbudu, was filed and served on the respondent. It contains the same details as are set out in the statement of defence. The DW2 adopted the written deposition in his evidence-in-chief at pages 308 – 311 of the record of appeal.

The report, as I have already stated, was tendered through him and he was cross-examined on his evidence and the report.

Order 32 Rule 1 (3) of the High Court of Delta State (Civil Procedure) Rules, 2009, states:-
“The oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.”
When a witness adopts his written deposition, the content thereof becomes his evidence-in-chief and becomes public demonstration of the case of the party for whom he testifies to the extent of its content. It is as if he has given oral evidence of all of its content.
Having adopted his written deposition in his evidence-in-chief which contained detailed depositions on the content of Exhibit D1 and how his findings were arrived at, can it be said that the content of Exhibit D1 was not demonstrated and brought out in Court? I think not.
Where a document is tendered in evidence its purport must be demonstrated in open Court by the party tendering the same. It is not sufficient to merely tender documents

in Court without linking them to specific aspects of the party’s case. This is to be done through a witness. This is to avoid doing cloistered justice by the Judge making inquiry into the case outside the open Court by the examination of documents which were put in evidence but not examined in open Court. See LADOJA v. AJIMOBI (2016) 10 NWLR (PT. 1519) 87, ANDREW v. INEC (2018) 9 NWLR (PT. 1625) 507 and BABABE v. FRN (2019) 1 NWLR (PT. 1652) 100.
In the instant matter, the purport or the content of Exhibit D1 was demonstrated in open Court by DW2 through his written deposition which he adopted as his evidence-in-chief and he was rigorously cross-examined on the content of the document. The learned trial Judge was therefore wrong in holding that the content of Exhibit D1 was not brought out and examined in open Court.
The learned trial Judge found that the investigation carried out by DW2 was one-sided and that there was no evidence that he visited the respondent or the Infrastructure Bank Plc. The DW2 worked on the documents that were given to him by the 1st appellant and the learned trial Judge did not state what his visit to the respondent or

the Infrastructure Bank Plc would have achieved. The evidence of the DW2, who testified as an expert and was not cross-examined on his qualification, was unshaken in cross-examination and the respondent did not tender a contrary audit report in evidence. Ordinarily, the evidence of DW2 should not be wished away by a wave of the hand. Where the evidence of an expert is unchallenged and there is no contrary evidence to discredit it, the same ought to be relied upon by the Court. See SEISMOGRAPH SERVICE (NIG) LIMITED v. AKPORUOVO(1974) 6 SC 19 and OBINECHE v. AKUSOBI (2010) 12 NWLR (PT. 1208) 383. Nevertheless, such evidence though unchallenged by way of cross-examination or contradictory evidence must not be accepted hook, line and sinker. The Court can reject it if there is good reason to do so. See ATTORNEY-GENERAL OF OYO STATE v. FAIRLAKES HOTELS (NO.2) (1989) 5 NWLR (PT. 121) 255 and OKORIE v. STATE (2018) 11 NWLR (PT. 1629) 1.

The finding of DW2 was based mainly on the point that there was no authorization for the transfer of N82,597,420.59 debt from Infrastructure Development Bank to the 1st appellant (in its account with the respondent). The

respondent pleaded and led evidence to the effect that the debit was in accordance with banking practice. See paragraph 18 of the statement of claim and paragraph 18 of the written deposition of CW1. The said averment was not specifically denied in the statement of defence and the CW1 was not cross-examined on it. It was therefore established in evidence. The DW2 therefore was on quicksand when he stated that the transfer of the debit was not authorized.

What is more damaging to the evidence of DW2 and Exhibit D1 is his admission in cross-examination that:-
“The Claimant guaranteed the facility that was given to the 1st Defendant by the Bank of Industry. I am aware that 1st Defendant defaulted in the facility… I am aware the 1st Defendant has not repaid its indebtedness to the Bank of Industry” See page 311 of the record.

The 2nd appellant in his evidence at page 312 of the record admitted that he had not fully paid back his indebtedness. By reason of the default in repayment, the respondent was compelled to pay the sum of N82,597,420.59 as guarantor of the facility. On that basis and in accord with banking practice, the said

amount was debited to 1st appellant’s account with the respondent. The 1st appellant refused to pay the said amount to the respondent inspite of several demands. Again, the 1st appellant refused to pay the overdraft facility of N6,500,000.00 granted to it by the respondent. The learned trial Judge found the foregoing as established facts and added the two sums to arrive at the judgment sum of N89,097,420.59. There is no ground of appeal which attacks the findings and the addition. The only ground of appeal which came close to the same was an attack on the addition of the sum of N6,500,000.00, to wit; ground 4. The ground has been abandoned by non-formulation of an issue from it. The finding and addition stand and bind the appellants.

It follows from the foregoing that the evidence of DW2 and Exhibit D1 had very little or no bearing on the case. The learned trial Judge was right in treating them as unreliable.
I enter a negative answer to issue 3 and resolve it against the appellant.

Before reaching the denouement of this judgment, I must say that the appellants are simply trying to escape from their obligation to pay to the respondent

what is due to it. The 1st appellant enjoyed the bank guarantee issued on its behalf by the respondent. It failed to pay the sum due from it to the Infrastructure Bank which act forced the respondent to pay the sum due to the said Bank. Again, it enjoyed overdraft facility from the respondent and yet refused to repay it. The appellants have come to this Court seeking the Court to give an imprimatur to their sharp practice. This Court will not lend its help to promote such conduct.

On the whole, the appeal is outstandingly unmeritorious and I have no hesitation in dismissing it. I dismiss the same and affirm the decision of the trial Court.
I assess the costs of this appeal at N1,00,000.00 in favour of the respondent and against the appellants.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read before now the lead judgment anchored by my learned brother Joseph Eyo Ekanem, JCA and concur that the appeal be dismissed for lacking in merit.

The Appellant’s resort to challenge the jurisdiction of the trial Court on account of the first non-resort to Arbitration pursuant to the Agreement is unsupportable in law as rightly stated

in the lead with reliance on KANO STATE URBAN DEVELOPMENT BOARD VS. FANZ CONSTRUCTION CO. LTD. (1990) 4 NWLR (PT. 142) 28 per Agbaje, JSC.
MAINSTREET BANK CAPITAL LTD VS NIGERIA REINSURANCE CORPORATION PLC (2018) 14 NWLR (PT. 1640) 423, 440-445 per Kekere-Ekun JSC quoting OBEMBE VS. WEMA BOD ESTATE LTD. (1977) 5 SC (Reprint) 70 at 79 lines 19-28.
The Appellant who had taken steps by not only entering conditional appearance and applied for stay of proceedings but having filed a Statement of Defence, Applied for extension of time had waived his right of insistence on prior recourse to Arbitration. On the whole, the enforcement of the Agreement between the parties as in the contract of Guarantee was proper. Parties are bound by their Agreements and cannot resile from them to the further point of unjust enrichment as sought by the Appellant herein. DW2 and Exhibit D1 re-enforce the existence of the debt. There is no merit in this appeal on all the issues raised. They have been comprehensively and aptly resolved by my brother Ekanam JCA, such that I have nothing more useful to add, than to concur, that the appeal be dismissed.

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, JOSEPH EYO EKANEM, JCA, and I am entirely in agreement with him on the reasoning and conclusion reached.
The appeal is hereby dismissed.

Appearances:

O. OLOKOR, Esq., with him, O. V. WARRACE, Esq. For Appellant(s)

O. ONUKPACHERE, Esq. For Respondent(s)