ALHAJI IBRAHIM GAJIMI v. FIRST BANK OF NIGERIA PLC (2018)

ALHAJI IBRAHIM GAJIMI v. FIRST BANK OF NIGERIA PLC

(2018)LCN/10795(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of February, 2018

CA/J/289/2014

RATIO

COURT PRACTICES:HOW PROCESSES OF THE COURT ARE TO BE SIGNED

ACTION: THE POSITION OF THE LAW ON RELIEF NOT SOUGHT

The law is well settled that a Court must not grant to a party a relief which he has not sought. A Court ought not play the role of a Father Christmas who can go around granting to parties reliefs they have not asked for. Where a party makes averments but such averments do not relate to any relief sought in the case, the Court will not grant the relief sought in the case, the Court will not grant a relief which would have followed the averments without an amendment to the claim. See Olaopa vs. O.A.U (1997) LPELR – 2571 SC, Salubi vs. Nwariaku (2003) LPELR 2998 SC and Nidocco Limited vs. Gbajabiamila (2013) LPELR – 20899 SC. In N.A.F vs. Shekete (2002) LPELR – 3193 SC at page 23 Niki Tobi JSC (of Blessed memory) expounded this principle of the law thus: “The moment a Court of law grants a relief or prayer not sought by the party, it expands the boundaries of the litigation and unnecessarily instigates more litigation to the detriment of the parties and for no reason at all. The litigation is for the parties and not for the Court. Therefore the Court has no jurisdiction to extend or expand the boundaries of litigation beyond what the parties have indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties. PER JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: POSITION OF THE LAW ON WHETHER AN ADMITTED FACT NEED BE PROVEN FURTHER

It is the law that what is admitted need no further proof either by oral or documentary evidence. It is also the law that a fact which is not denied is deemed to have been admitted. See Ndukwe vs. LPDC (2007) LPELR – 1978 SC 64, Akinlagun & Ors vs. Oshoboja & Anor (2006) LPELR – 348 SC 33 and Cappa & D Alberto Ltd vs. Akintilo (2003) LPELR – 829 SC page 14 and page 18. PER JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

Between

ALHAJI IBRAHIM GAJIMI Appellant(s)

AND

FIRST BANK OF NIGERIA PLC Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 12th July, 2010 in the High Court of Borno State holden at Maiduguri.

The claim of the Appellant as Plaintiff in the High Court (the Court below) against the Respondent who was the Defendant and counterclaimant was for the following:
i. An order declaring the consent to mortgage property covered by Right of Occupancy No. BO/26170 as null and void.
ii. An order setting aside the registration of his property BO/26170 as legal mortgage to the defendant and registered as No. 341 at page 341.
iii. An injunction restraining the Defendant from advertising, selling, appointing Receiver Manager or otherwise doing anything towards the disposal of property covered by Right of Occupancy No. BO/26170.
iv. Cost.

The Respondent counterclaimed from the Appellant the following:
a. A declaration that there is an equitable mortgage created over property covered by certificate of occupancy No. NE/1619 between the defendant and the Dangana Trading Company Limited and the plaintiff.
b. An order of sale of property

covered by C of O. No. NE/1617 by the defendant as an unpaid mortgagee.
c. Cost of the suit.

The case of the Appellant is that Dangana Trading Company applied for a loan of N300 million from the Respondent bank but N125 million was approved. He (Appellant) deposited his certificate of occupancy as a collateral before the sum of N125 million was released to Dangana Trading Company. He (Appellant) is the Chairman and Director of Dangana Trading Company. According to Appellant, the collateral he deposited in respect of the facility was property No.BO/26170 and not property No. NE/1619 even though he gave the Respondent certificates of Occupancy for both properties.

He had never taken a loan from the Respondent. Therefore he wanted the Court below to restrain the Respondent from selling property No. BO/26170.
In respect of the counterclaim, he did not personally take any loan from the Respondent, he maintained.

?The defence of the Respondent was that the Appellant as the guarantor of the loan and overdraft of N125 million, pledged two securities. One of the conditions for granting the facilities to Dangana Trading Company was that the

Appellant would stand as guarantor to Dangana Trading Company. The Appellant agreed by filling the forms. A tripartite legal agreement was executed in respect of the loan. The tripartite legal agreement exhibit 6 was signed by the Appellant as a guarantor. Alhaji Mohammed Gajimi signed as the Managing Director of the Company.

After hearing evidence led by both parties and considering addresses of learned counsel for the parties, the Court below dismissed the claim of the Appellant and entered judgment in favour of the Respondent.

It is this decision of the Court below that the Appellant decided to challenge by an original notice of appeal dated 24th August, 2010 and filed on 25th August, 2010. The notice of appeal was amended with the leave of this Court granted on 29th October, 2015. The amended notice of appeal contains six grounds of appeal.

From the six grounds of appeal the appellant presented the following issues for determination:
1. Whether the Court can grant the respondent what it did not claim in its counter-claim? (Ground of Appeal No. 2)
2. Whether the respondent has proved its entitlement to N153, 578, 189.92k?

(Grounds of Appeal Nos. 1 and 5).
3. Whether the appellant had proved his claim before the Court? (Ground of Appeal No. 4)
4. Whether the trial Court was correct in suo moto (sic) looking at the counter-affidavit of the respondent to reach its decision without giving the parties or their counsels (sic) the opportunity of addressing it (Ground of Appeal No. 3)
5. Whether the appellant is an illiterate within the meaning of the illiterate protection law and therefore qualifies for protection under the law? (Ground of Appeal No. 6).

The Respondent raised a preliminary objection in the Appellant?s brief and presented the following lone issue for determination:
Whether the Lower Court was not right to have held that the appellant did not prove his case hence dismissed it.

The notice of preliminary objection pursuant to Sections 2 (1) and 24 of the Legal Practitioners Act was filed upon the following grounds:
1. The Writ of Summons in this case was not signed by a legal practitioner called to the Bar.
2. The Writ of Summons is the originating process, if the Lower Court had no jurisdiction; this Court equally has no

jurisdiction to entertain this appeal.
3. The person that signed the Writ contained at page 2 of the record is AUDU MUSA & CO. who is not a legal practitioner.

Arguing the preliminary objection, learned counsel for the Respondent contended that the writ of summons which is the originating process in the Court below was not signed by a known legal practitioner called to the Nigerian Bar to practice law. A look at the writ of summons, it was further argued, will show that it was signed by Audu Musa & Co. Not being a legal practitioner, it was submitted, Audu Musa & Co cannot sign a process filed before any Court in Nigeria.

It was contended that if the other name contained in the writ of summons, that is Mallam Audu Musa is a legal practitioner, the said Audu Musa did not sign the writ of summons. The consequence is that the writ of summons was not signed and an unsigned document is a worthless document.

It was submitted that since the writ of summons before the Court below was incompetent, all the proceedings of the Court below were a nullity and therefore this Court lacks jurisdiction to entertain the appeal.

?On both

arguments and submissions we were referred to Elaigwu vs. Tong (2016) 14 NWLR (Pt. 1532) 165 and Omega Bank (Nig) Plc vs. O.B.C Ltd (2005) All FWLR (Pt. 249) 1964 at 1994.

In reply to the preliminary objection learned counsel for the Appellant submitted that it was Mallam Audu Musa of Audu Musa & Co who signed or endorsed the writ of summons. There is no specific place on the writ for counsel to endorse, he submitted. Therefore, counsel can sign anywhere on the writ as long as it is not where the Court is supposed to endorse the writ or where the bailiff will endorse as to service. It is a figment of counsel?s imagination, it was submitted, to contend that Audu Musa & Co signed the document. Audu Musa & Co, it was submitted, is merely an address of the legal practitioner who signed the writ.

It was submitted that when the name of the Legal Practitioner who issued the writ is not given, then the argument of learned counsel for the Respondent will be valid. But in this case the issuer of the writ was Mallam Audu Musa of Audu Musa & Co who signed the writ.

?On the appeal learned counsel for the Appellant pointed out that the

counterclaim of the Respondent was not for the sum of N153, 578, 187.92k awarded to Respondent by the Court below. The counterclaim, it was pointed out, was for declaratory relief and for an order to sell property covered by certificate of occupancy No. NE/1619.

It was submitted that the Court of law has no power to grant to a claimant what he did not claim for as the Court is not a Father Christmas doling out gifts. We were referred to Ekpenyong vs. Nyong (1975) 2 SC 71, LAHAN vs. JOYETAN (1972) 6 SC 190, AG Federation vs. AG Abia No. 2 (2002) 6 NWLR (Pt. 764) 542 and NAF vs. Shekete (2002) 18 NWLR (Pt. 798) 129.

On issue 2, learned counsel for the Appellant submitted that no mention was made in the statement of defence that Dangana Trading Company was owing N153, 378, 189.92. That the only time the Respondent mentioned N153, 578, 189.92 was in the counterclaim. Even then, it was the Company that was said to be owing the said amount not the Appellant. That the Respondent pleaded that both Appellant and the company are owing the Respondent the sum of N153, 578, 189.92.

?DW1, it was pointed out, stated that the amount the Court should order the

Respondent to pay is N158, 857, 909.00k but did not tender the statement of account or any ledger book to show the indebtedness. He also did not show how the amount was arrived at. That DW2 who stated that the Company is owing N158, 758, 189.92k said under cross ? examination that he did not know how the figure was arrived at, it was submitted.

The Appellant, it was submitted, denied owing the amount or any amount in his defence to the counterclaim. Therefore it was for the Respondent to prove the sum owed by credible legally admissible evidence and not by the ipse dixit of its witnesses which at best is hearsay evidence. We were referred to Maduabum vs. Nwosu (2010) 13 NWLR (Pt. 1212) 623 at 630 and Onwula vs. Uche (2010) 13 NWLR (Pt. 1179) at 585.

It was submitted that DW1 did not state where he got his information from and DW2 was categorical that he did not know how the figure of N153, 758, 189.92 was arrived at. Therefore both testimonies ought to have been rejected and not to be used to enter judgment against the Appellant.

?It was submitted that the only way a bank can prove indebtedness of a customer if there is no admission,

is by production of the statement of account or the ledger book of the bank. We were referred to UBA vs. Ishola (2000) FWLR (Pt. 106) 1253 at 1280. The Respondent in this case, it was pointed out, did not tender the statement of account despite the fact that it was in the custody of the Respondent.

?On issue 3, learned counsel for the Appellant submitted that Exhibits AIG 3 and AIG 5 which is the same document govern the condition of the loan/overdraft between the Appellant and the Company on the one hand and the respondent on the other. It was submitted that by condition No. 6 of Exhibits 3 and 5, a tripartite legal mortgage and debenture would be created on the property covered by certificate of occupancy No. NE/1619. That property covered by certificate No. BO/26170 was to be collected from Intercontinental Bank and deposited with the Respondent simpliciter which means equitable mortgage as opposed to legal mortgage which has to be registered. However contrary to conditions Nos. 6 and 7 of Exhibits 3 and 5 the Respondent proceeded to create a legal mortgage over property covered by certificate of occupancy No. BO/26170 and came seeking for an order

giving it right of equitable mortgage over the property covered by certificate of occupancy No. NE/1619 and the right to sale same. What the Respondent was asking for it was submitted, was already in its hand and the Court could not give it more than what is contained in condition No. 6 of exhibits 3 and 5.

The Appellant, it was submitted, had discharged the burden placed on him to show that there was no agreement to create a legal mortgage over property covered by certificate of occupancy No. BO/26170. That Exhibits 3 and 5 envisaged that an equitable mortgage would be created over Exhibit AIG 2 only. However, the Respondent proceeded to create a legal mortgage Exhibit AIG 6 over Exhibit AIG 2.

On issue 4 learned counsel for the Appellant pointed out that in the reply to the statement of defence Appellant denied being served with any demand letter either on himself or on the company. The Court in order to resolve this issue, it was submitted, went fishing into the file to see if there was any evidence of demand or notice to the Company so as to sustain the counterclaim before it.

?It was submitted that a Court can look at its file to see if

there is anything that would aid it in its determination of the matter at hand. However, where the Court raises the issue suo motu and resolves it without hearing from the parties, it thereby breaches the fundamental right to fair hearing. We were referred to Olayinola vs. FRN (2006)1 FWLR (Pt. 304) 4259 at 1300, Odubeko vs. Fowler (1993) 7 NWLR (Pt. 308) 637, Oshodi vs Eyifunmi (2000) 13 NWLR (Pt. 684) 298; Alli vs. Alesinloye (2000) 6 NWLR (Pt. 660) 177 and Oshatoba vs. Olujitan (2000) 5 NWLR (Pt. 655) 159.

The Court below, it was argued, went into its file and brought out a counter affidavit filed by the respondent, looked at exhibit F attached to the counter affidavit without regards to whether or not the exhibit, a letter of demand was served on the company. It was submitted that if parties were invited to address the Court, Appellant?s counsel would have pointed out that there was no evidence of service of the letter.

On issue 5, it was submitted that Exhibit 6 which was prepared by an in ? house counsel of the Respondent had no illiterates jurat and was therefore unenforceable against the Appellant who DW1 admitted was an

illiterate. We were referred to SCOA vs. OKON (1959) 4230, Agbara vs. Amara (1995) NWLR (Pt. 410) 712 at 732 and P.Z. vs. Gusau (1962) 1 All NLR at 246.

On the lone issue formulated by the Respondent, learned counsel for the Respondent contended that the Appellant admitted that he deposited his two certificates of occupancy as collateral for the loan and overdraft in paragraphs 5, 6, 8 and 11 of the statement of claim. The deposit, it was submitted, is embodied in the Deed of Tripartite Legal Mortgage with the Appellant as a party. This document, it was submitted, is Exhibit AIG 3 and parties are bound by the terms of the contract freely entered into voluntarily. We were referred to Jfs Investment Ltd vs. Brawal (2010) 8 NWLR (Pt. 1225) 495 at 531.

It was submitted that once there is a document of agreement between parties and there is dispute, it is only the agreement that will be resorted to in determining the dispute. We were referred to Living Faith Church Otukpo vs. Adole (2005) All FWLR (Pt. 278) at 298.

The Appellant, it was submitted, executed Exhibit AIG 3 as a surety and agreed that property BO/26170 be used as collateral and legal

mortgage to be created. It was submitted that the Appellant who executed the legal mortgage upon which the Respondent relied to release its money cannot turn round to say he is illiterate. We were referred to Section 169 (1) of the Evidence Act and Nsirim vs. Nsirim (2002) 9 NSCQR 1. The Respondent, it was argued, relied on his execution of the Tripartite Legal mortgage and gave out its money and the Appellant cannot at this stage say that he is illiterate to alter the position of the Respondent negatively by refusing to repay the loan.

The Appellant, it was submitted, signed the application for the loan and did not claim to be illiterate. He also signed as a guarantor and did not say that he was illiterate. However, now that it is time to repay the loan, he is saying that he is illiterate.

?It was submitted that a written agreement cannot be varied by oral evidence. We were referred to Section 128 (1) of the Evidence Act. It was submitted that the oral contention of the Appellant that he did not agree that legal mortgage be created against property with certificate of occupancy No. BO/26170 in the face of the Tripartite Legal Mortgage which he signed

cannot succeed.

A guarantor, it was submitted, is a debtor and liable to be sued for the debt. We were referred to Chami vs. UBA Plc (2010) 6 NWLR (Pt. 1191) 474 at 501.

After repaying only N64, 000, 000 of the principal debt, the Company, it was argued, refused to pay. Thus, it was submitted, liability of the Appellant as surety had crystallized hence the claim against him. Therefore the submissions on non demand or that he is not a debtor had no basis, it was submitted.

It was submitted that despite the averments in paragraphs 4 and 5 of the Respondents counterclaim that the Company was owing N153, 758, 189.92 and evidence led in proof, the Appellant did not say they had repaid the loan in full plus interest. Rather the contention was the failure to tender statement of account. It is not in all circumstances, it was argued that a statement of account must be tendered to prove indebtedness. The Appellant himself, it was pointed out, said under cross ? examination that the Company had only paid N64 million out of N125 million. That DW2 also said that the Company is indebted to the Respondent.

?This, it was submitted, is an admission

of the indebtedness of the Company to the Respondent by the Appellant, therefore the issue of failure to prove debt does not arise. Therefore the Court below rightly entered judgment in favour of the Respondent.
The Appellant, it was submitted, did not prove his case and the Court below rightly dismissed his claim.

The Supreme Court has set out guidelines on how processes of Court are to be signed. They are as follows: (1) The signature of counsel which may be any contraption. (2) The name of the counsel clearly written. (3) Who counsel represents. (4) Name and address of legal firm. See SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt. 1252) 317. The writ complained of in this appeal was issued by Mallam Audu Musa of Audu Musa & Co whose address for service is No. 8 Shehu Laminu Way Maiduguri; agent of the plaintiff who resides at GRA Maiduguri. The writ is signed. The name of the counsel Mallam Audu Musa is clearly written on the writ. The name of the Legal Firm Audu Musa & Co and the address are contained in the writ. It is clearly indicated who counsel represents. Surely if learned counsel for the Respondent had bothered to read the process

which speaks for itself, he would have seen that Mallam Audu Musa issued it. It is not his contention that Mallam Audu Musa is not a Legal Practitioner.

The preliminary objection as shown above has no basis and should be overruled. It is accordingly hereby overruled.

the litigation and unnecessarily instigates more litigation to the detriment of the parties and for no reason at all. The litigation is for the parties and not for the Court. Therefore the Court has no jurisdiction to extend or expand the boundaries of litigation beyond what the parties have indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.?

Although the Respondent pleaded in paragraphs 4 and 5 of the counterclaim and DW1 claimed that the Respondent was counterclaiming for specific sums of money the Respondent nowhere in the counterclaim claimed for a certain sum of money. In paragraph 4 of the counterclaim, the Respondent averred that Dangana Trading Company was owing a total sum of N153, 758, 189.92. In his evidence in Chief, the DW1 erroneously stated that the Respondent was counterclaiming the sum of N158, 857, 909.00 and urged the Court to order the Appellant to pay N158, 857, 909.00.

?Apparently misled by the DW1?s exhortation the Court below found the counterclaim proved and the Appellant liable to pay the sum of N153, 578, 578.92k which was not counterclaimed. The

counterclaim reproduced earlier in the judgment was for a declaration that there is an equitable mortgage created over property covered by the certificate of Occupancy No. NE/1619 and for an order of sale of property covered by certificate of occupancy No. NE/1617 by the Respondent as an unpaid mortgage.

I have searched the records over and over and I have not seen any amendment of the counterclaim to reflect the averments in paragraphs 4 and 5 of the counterclaim and evidence of DW1 that the Respondent was entitled to any specific sum of money. In the absence of any amendment to reflect the averments and evidence that the Respondent was entitled to the amount, the Court found the Appellant liable; to the sum of N153, 578, 189.92k not claimed by the counterclaimant.
Issue 1 is therefore resolved in favour of the Appellant and against the Respondent.

A creditor is entitled to proceed against a guarantor immediately the debtor or borrower becomes unable to pay his outstanding debt. The guarantor is bound by the written agreement he entered into. See Nwankwo & Anor vs. Ecumenical Development Co-operative Society (2007) LPELR ? 2108 SC page

40 ? 41.

In paragraph 8 of the statement of claim, the Appellant pleaded that he and Dangana Trading Company Ltd accepted the loan and overdraft. In paragraph 9 of the statement of claim the Appellant averred that out of N125 million granted to the Company it had paid over N61 million. That due to the collapse of its business it became increasingly difficult for the Company to meet its obligation. The Appellant as PW1 under cross ? examination, said that he enquired from the company and was told that the company had paid N64 million to the Respondent. When the Respondent pleaded in paragraphs 3, 4 and 5 of the counterclaim that the company was owing N153, 758, 189.92k the Appellant?s reaction in paragraph 2 of the defence to counterclaim is that he was not personally liable.

It is clear therefore from the pleadings that the Appellant admitted liability of the company. It is the law that what is admitted need no further proof either by oral or documentary evidence. It is also the law that a fact which is not denied is deemed to have been admitted. See Ndukwe vs. LPDC (2007) LPELR ? 1978 SC 64, Akinlagun & Ors vs. Oshoboja

& Anor (2006) LPELR ? 348 SC 33 and Cappa & D Alberto Ltd vs. Akintilo (2003) LPELR ? 829 SC page 14 and page 18.

As the Appellant admitted the debt, the Respondent rightly proceeded against him by counterclaiming the debt outstanding. Appellant is not permitted by law to seek refuge under the guise of being a guarantor only.

Although on the pleadings the Appellant admitted the debt, the Respondent called the DW1 and DW2 who maintained that the company was owing the said amount. See pages 85 and 91 of the record of appeal. DW2 who was cross ? examined on the debt said he had left the Department. But the DW1 was not cross ? examined on the debt. Failure to cross ? examine the DW1 on this crucial evidence is also admission of the debt of N153, 578, 189.92k. See Ighalo vs. The State (2016) LPELR ? 40840 SC page 9.

It is clear from the foregoing that issue 2 should be resolved against the Appellant and in favour of the Respondent.
I accordingly resolve issue 2 against the Appellant and in favour of the Respondent.

?Learned counsel for the Appellant?s arguments on issue 3 revolve around

Exhibits 3 and 5 which as pointed out earlier in the judgment are the same document. According to the learned counsel for the Appellant that is the document that governs the loan/overdraft. That is far from the truth. Exhibit 3 condition 6 which learned counsel for the Appellants referred to in argument makes reference to a Tripartite Legal Mortgage which is exhibit 6.

Having shut his eyes to exhibit 6 learned counsel has thereby failed to show that the Appellant had proved his claim.
In the circumstances, issue 3 is resolved against the Appellant and in favour of the Respondent.

A Court is entitled to look at a document or documents in its file. Similarly, an appellate Court is entitled to look at the contents of the record of appeal. See A.G. Federation vs. Uwazuike & Ors (2006) LPELR ? 11858 CA page 10. Learned counsel for the Appellant pointed out that it was his submission in the Court below that no demand notice was made either to the Appellant as guarantor or the company as the borrower that made the Court below to look at its file. He cannot therefore turn round to complain that the Court below raised the issue. The issue was

raised and argued by the Appellant. The Court was entitled to look at the documents in its file to see if no demand notice was issued to either the Appellant or the company. The Court found that a demand notice was issued. The Court below did not even have to belabour itself by going into its file in the light of paragraph 11 of the statement of claim of the Appellant which is reproduced immediately hereunder:
?11. The Plaintiff states that the Defendant wrote Dangana Trading Co. Ltd this (sic) letters dated 11th and 17th February, 2009 it would auction the plaintiff?s property which are the collateral for securing the loan and overdraft in the first place.?

It is clear from the foregoing that the learned counsel for the Appellant had no basis for his argument in the Court below that no demand notice was issued by the Respondent before it counterclaimed.
The Court below rightly found that such notice was issued by the Respondent.
Issue 4 is resolved against the Appellant and in favour of the Respondent.

?An illiterate within the meaning of the Illiterates Protection Act is a person who is unable to read or write the

language in which a particular document is written but a person who can read and write in some other language is not an illiterate within the meaning of the Illiterates? Protection Act. See Lawal vs. G.B. Ollivant Nigeria Limited (1972) LPELR ? 1764 SC page 17.

Where a document is prepared by a legal practitioner on behalf of his client who is an Illiterate, the legal practitioner need not interprete and explain the document to the client prior to the client signing or making his mark on the document. See Edokpolo & Co Ltd vs. Ohenhen & Anor (1994) LPELR ? 1016 SC page 15.

Learned counsel for the Appellant submitted that Exhibit 6 is not enforceable against the Appellant. Exhibit 6 was signed by Appellant as surety. Exhibit AIG 6 was prepared by a legal practitioner for the company and the Appellant who sent it to the Respondent.
Apart from this, the Appellant nowhere suggested that he signed Exhibit AIG 6 as an Illiterate or that he did not know what he was signing.

?Learned counsel for the Appellant sought to make heavy weather of the short response of the DW1 under cross ? examination that the Appellant

cannot read and write. The DW1 did not suggest that the Appellant did not understand Exhibit AIG 6 prepared by a legal practitioner which the Appellant signed.
There is therefore no basis for the submission of learned counsel for the Appellant that Exhibit AIG 6 is not enforceable against the Appellant.
Issue 5 is also resolved against the Appellant and in favour of the Respondent.
Issue 1 having been resolved in favour of the Appellant, the appeal succeeds in part.

The decision of the Court below entering judgment in favour of the Respondent and against Appellant in the sum of N153, 758, 189.92 is hereby set aside, since it is not what was counterclaimed.
The judgment of the Court below dismissing the Appellant?s claim is upheld by me.
Each of the parties shall bear his costs.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft form the leading judgment in this appeal just delivered by my learned Brother, James Shehu Abiriyi, JCA.

?I agree with His Lordship?s line of reasoning and the conclusion reached in the said leading judgment that the appeal is

devoid of merit. I equally dismiss the appeal and uphold the decision of the trial Court dismissing the claim of the Appellant before it. I abide by the other consequential orders contained in the leading judgment.

?SAIDU TANKO HUSAINI, J.C.A.: I had a preview of the lead Judgment just delivered by my noble Lord, Abiriyi, JCA. I agree with his Lordship?s line of reasoning and conclusion thereat. I adopt the said lead Judgment as mine and I abide by the consequential order as to Cost.

Appearances:

Mallam Audu Musa, Esq. with Habu WaziriFor Appellant(s)

F.O. Shaibu, Esq.For Respondent(s)

Appearances

Mallam Audu Musa, Esq. with Habu WaziriFor Appellant

AND

F.O. Shaibu, Esq.For Respondent