ASHIEKAA v. UBA PLC (2021)

ASHIEKAA v. UBA PLC

(2021)LCN/15151(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, March 11, 2021

CA/A/403/2016

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

CHRISTOPHER VERSHIMA ASHIEKAA APPELANT(S)

And

UNITED BANK FOR AFRICA PLC RESPONDENT(S)

RATIO

INTERPRETATION OF ORDER 19 RULE 5 OF THE COURT OF APPEAL RULES, 2016 REGARDING WHEN AN APPELLANT IS REQUIRED TO FILE A REPLY BRIEF

By virtue of the provision of Order 19 Rule 5 of the Court of Appeal Rules, 2016, an appellant may, if he deems it necessary, upon service of the respondent’s brief on him, file and serve on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief. It stems from this provision, which harbours no ambiguity, that where a respondent raises new points/issues in the respondent’s brief of argument, an appellant is required, if he so desires, to file appellant’s reply brief in response to those fresh issues. The converse is true, id est, it is unnecessary in the absence of new points sprouting from the respondent’s brief of argument. It is not a forum to fill up any lacunae in the appellant’s brief. In essence, the primary function of a reply brief is to counter new points emanating from a respondent’s brief of argument, see Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1328) 512; Harka Air Sew. (Nig.) Ltd. v. Keazor (2011) 13 NWLR (Pt. 1264) 320; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275; Nidocco Ltd. v. Gbajabiamila (2013) 14 NWLR (Pt. 1374) 350; Nyesom v. Peterside (2016) 1 NWLR (Pt. 1492) 71; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd. (2017) 7 NWLR (Pt. 1563) 42; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343; Okala v. Udall (2019) 9 NWLR (Pt. 1678) 562; Mekwunye v. Imoukhuede (2019) 13 NWLR (Pt. 1690) 439; Unity Bank Plc. v. Ahmed (2020) 1 NWLR (Pt. 1705) 364; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. PER OBANDE FESTUS OGBUINYA, J.C.A

WHETHER THE APPELLATE COURT IS AT LIBERTY TO EVALUATE DOCUMENTARY EVIDENCE PRESENTED BEFORE THE LOWER COURT BY THE PARTIES

It is germane to place on record, upfront, that a galaxy of documentary evidence were furnished before the lower Court by the parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, seeGonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye(2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem(2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V(Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHEN IS AN ISSUE JOINED IN LAW

In the eyes of the law, an issue is joined on a particular fact, necessitating its proof, when its assertion is disputed by an opposing party, see Galadima v. State (2018) 13 NWLR (Pt. 1636) 357. PER OBANDE FESTUS OGBUINYA, J.C.A.

OBJECT OF CROSS EXAMINATION

It cannot be gainsaid that in our adversarial system of adjudication, the object of cross-examination is to test the credibility of an opponent’s case. It is meant to puncture and discredit the evidence-in-chief of a witness. It has the potential to perforate an opponent’s case and enhance that of the cross-examiner. It affords the judex the sufficient opportunity to watch and assess the credibility and reliability of a witness by watching his demeanour in the witness box. Hence, it has been described as a “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”, see Oforlete v. State (2000) 3 NSCQR 243 at 268 per Achike, JSC. Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 466; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179; Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Adama v. K.S.H.A. (2019) 16 NWLR (Pt. 1699) 501; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. PER OBANDE FESTUS OGBUINYA, J.C.A.

EFFECT OF EVIDENCE ELICITED DURING CROSS-EXAMINATION

Those responses from the DW1, elicited from him in the cross-fire of cross-examination, are, in the mind of law, potent evidence that run pari passu with the ones from evidence-in-chief, see Gaji v. Paye (2003) NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones oozing out of examination-in-chief, seeAdeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321. Indubitably, cross-examination occupies an Olympian position in our corpus juris especially in the adjectival law. It is the barometer with which to measure the truth in evidence-in-chief of a witness. The veracity of a witness under examination-in-chief is tested by the evidence elicited from him in the furnace of cross-examination. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHETHER A STATEMENT ON OATH SIGNED IN PRESENCE OF A PARTY’S COUNSEL IS INVALID

There is no law, statutory or case-law, and the learned appellant’s counsel cited none, which debars a party’s lawyer’s presence in course of signing a statement on oath nor invalidates any one signed when his lawyer is present. To accede to the appellant’s enticing supplication, that DW1 signed before his lawyer, will snowball into tinkering with the record. An appellate Court is bound by the contents of the record. It has no vires to read into it what is absent from it nor add into it what is outside the record. In other words, it must construe the record in its exact content. The parties are bound by the record too, see Orugbo v. Una (2002).16 NWLR (Pt. 792) 175; Ogidi v. State (2005) 5 NWLR (Pt. 918) 286; O.O.M. F. v. N. A. C. B. Ltd. (2008) 12 NWLR (Pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) 166, International Bank Plc. v. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi v. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442)1, Brittania – U (Nig.) Ltd. v. Seplat Pet Dev. co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; PDP v. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307. I must pay due fidelity to this hallowed and inelastic principle of law. l therefore, decline the appellant’s inviting solicitation to tinker with the record by tampering with the clear parol evidence of DW1. The law, as x-rayed above, does not grant this Court the unbridled licence to indulge in such untoward and injudicious exercise. In sum, I hold that the DW1’s statement on oath did not defile the provision of Section 112 of the Evidence Act, 2011. PER OBANDE FESTUS OGBUINYA, J.C.A.

INTERPRETATION OF THE PROVISION OF SECTION 168 (1) OF THE EVIDENCE ACT, 2011 REGARDING THE PRESUMPTION OF LAW WHEN A JUDICIAL OR OFFICIAL ACT IS SHOWN TO HAVE BEEN DONE IN A MANNER SUBSTANTIALLY REGULAR

… the provision of Section 168 (1) of the Evidence Act, 2011 comes in handy. It reads: 168 (1) When any judicial or official act is shown to have been done in a manner substantially regular it is presumed that formal requisites for its validity were complied with. The case-law has since given its blessing to this statutory presumption of regularity of judicial or official act. In the Latin days of the law, it was couched: Omnia Praesumuntur rite et solemniter esse acta donec prebetur in contrarium, see Torri v. NPSN (2011) 13 NWLR (Pt. 1264), Citec Int’l Etates Ltd v. Francis (2014) 8 NWLR (Pt. 1408) 139; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442) 1; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. See Nsefik v. Muna (2014) 2 NWLR (Pt. 1390) 151; Ugo v. Ummuna (2018) 2 NWLR (Pt. 1602) 102; Isitor v. Fakarode (2018) 10 NWLR (Pt. 1628) 416; Fidelity Bank Plc v. The M.T. “Taraba” (2018) 12 NWLR (Pt. 1632) 135; Uzodinma v. lhedioha (2020) 5 NWLR (Pt. 1718) 529. It is trite elementary law that to disrobe any act from reaping from this presumption, an adversary has to furnish rebuttal evidence. PER OBANDE FESTUS OGBUINYA, J.C.A.

IMPORTANCE OF FACTS OF CASES IN DETERMINATION OF CASES

The importance of facts in determination of cases cannot be over emphasised. Facts are the forerunners and arrowhead of the law. They act like magnets with the potential to completely, turnaround the fortune or misfortune of a case. In the heydays of the Roman law, they were framed as: Ex facto oritur jus — law has its offspring on the fact, see A.-G., Anambra State v. A. — G., Fed. (2005) 131 LRCN 235 at 2426/(2005) 9 NWLR (Pt. 931) 572 at 638 – 639, Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. The ancient doctrine of stare decisis, which was invented to ensure certainty in law, and which should compel me to apply those cases, thrives where facts of cases are in pari materia. It is lame where the facts of cases are not on all fours. Since the facts of the two sets of cases are distinguishable, the law does not grant me the imprimatur to kowtow to the decision in those two cases. I am, therefore, impelled by law to decline the appellant’s inviting supplication on the footing of facts differential. The lower Court did not err in law when it declined similar invitation. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHAT IS AN OMNIBUS GROUND OF APPEAL

To start with, a castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC 91; Anyaoke v. Adi (1986) 2 NSCC, vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009) 15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412. PER OBANDE FESTUS OGBUINYA, J.C.A.

POSITION OF THE LAW REGARDING THE PRIMARY DUTY OF THE LOWER COURT TO EVALUATE RELEVANT AND MATERIAL EVIDENCE, BOTH ORAL AND DOCUMENTARY, AFTER HEARING AND WATCHING THE DEMEANOUR OF WITNESSES CALLED BY THE PARTIES IN ANY PROCEEDINGS

The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 222; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 533; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652)1635; Oguntade v. Oyelakin (2020) 6 NWLR (Pt. 1719) 41. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHAT IS A FRESH ISSUE

A fresh issue is one which was not adjudicated and pronounced upon by a lower Court whence an appeal emanated, see Olalomi Ind. v. NIDB (2009) 16 NWLR (Pt. 1167) 577; C.G.G. (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1459) 577. An appellate Court is not clothed with the garment of jurisdiction to entertain a fresh issue save with the leave of Court sought and obtained, see Odom v. INEC (2015) 6 NWLR (Pt. 1456) 527; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Yahaya v. Dankwambo (2016) 7 NWLR (Pt. 1511) 284; Obasi v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (Pt. 1539) 335; Awala v. NITEL Plc (2019) 15 NWLR (Pt. 1695) 372; Ibrahim v. APC (No. 1) (2019) 16 NWLR (Pt. 1699) 444. Leave, in this context, connotes permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; (1987) 2 NSCC Vol.18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACE Int’l Ltd (2008) 3 NWLR (Pt. 1073) 179; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHAT IS A CONTRACT; CONDITIONS FOR A VALID CONTRACT

A contract is a legally binding agreement between two or more persons whereby rights and duties are acquired by one party in return for acts or forbearances on the part of the other, see Best (Nig) Ltd. v. B.H (Nig) Ltd. (2011) 5 NWLR (Pt. 1239) 95. For there to be an enforceable contract, there must co-exist a precise offer, an unqualified acceptance, a legal consideration and intent to create legal relation. In other words, there must be the mutuality of purpose and intention between the contracting parties. In the legal province, that translates to the meeting of the minds of the contracting parties, or consensus ad idem, on the terms of the agreement. In the view of the law, an offer, a definite indication by an offeror to an offeree that he is willing to conclude a contract on his proposed terms if accepted by the other, may be verbal, written or implied from the conduct of the offeror. Where an offeree does not accept an offer, then it mutates to a counter-offer – a statement by an offeree that has the legal effect of rejecting an offer and proposing a fresh offer to an offeror. These fundamental elements of a binding contract have been sanctified by the Supreme Court in sea of judicial authorities, see Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547; Neka B.B.B. Mfg. Ltd. Co. v. A.C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521, Chabasaya v. Anwasi (2010) 10 NWLR (Pt. 1201) 163; Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95; A.G., Rivers State v. A.-G., Akwa lbom State (2011) 8 NWLR (Pt. 1248) 31; Bilante Int’l. Ltd. v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; BPS Constr. & Engr. co. Ltd. v. F.C.D.A. (2017) 10 NWLR (Pt. 1572) 1; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343 N.R.M.A & F.C. v. Johnson (2019) 2 NWLR (Pt. 1656) 247. PER OBANDE FESTUS OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the High Court of Federal Capital Territory, Abuja, holden in Abuja Division (hereinafter addressed as “the lower Court), coram judice, A. S. Umar, J. (now JCA), in suit No. FCT/HC/CV/1588, delivered on 14th January, 2016. Before the lower Court, the appellant and the respondent were the plaintiff and the defendant respectively.

The facts of the case, which transformed into the appeal, are obedient to brevity and simplicity. The appellant was/is a customer of the respondent — a banking financial institution in Nigeria and beyond. In June, 2007, at the behest of the appellant, the respondent granted it a shareplus loan in the sum of N2,970,000 (Two Million, Nine Hundred and Seventy Thousand Naira Only) for a period of 12 months. The shareplus loan was to be used by the appellant to acquire shares from specific banks and companies acceptable to the respondent and those shares were to serve as collateral/security for the loan. Due to the global nosedive in the value of securities, the appellant

could not trade profitably with the socks he acquired. As a result, in June, 2008, he applied to the respondent for a renewal of the shareplus facility. The respondent granted the application and the same was renewed, on the same repayment conditions as the first loan, in the sum of N2,673,000 (Two Million, Six Hundred and Seventy-Three Thousand Naira Only) for a period of 180 days. On 8th July, 2008, the respondent debited the appellant’s account in the sum of N1,078,000 (One Million, Seventy-Eight Thousand Naira Only). The appellant alleged that the deduction was a breach of their renewed contract as it was premature. An attempt to settle the dispute amicably failed. Sequel to that, the appellant beseeched the lower Court, via a writ of summons filed on 17th December, 2013, and tabled against the respondent the following reliefs:
(a) An order of Court that the premature debiting of the plaintiff’s Account No. 00390020000471 (1002864696) by the defendant during the renewed tenor of 180 days and without any demand for repayment made to the plaintiff by the defendant is in clear breach of the express terms/conditions of the grant of the shareplus loan.

(b) An order of Court directing the defendant to immediately credit the plaintiff’s Account No. 00390020000471 (1002864696) with the sum of N1,078,000.00 prematurely debited in the plaintiff’s account when the plaintiff’s due date for loan repayment had not arisen.
(c) An order of Court awarding against the defendant in favour of the plaintiff the sum of N100,000,000.00 only as damages for breach of terms/conditions of grant of shareplus loan.

In reaction, the respondent joined issue with the appellant and denied liability by filing a statement of defence.

Following the rival claims, the lower Court proceeded to have a full-scale determination of the case. In proof of the case, the appellant testified in person, as PW 1, and tendered documentary evidence — exhibits A — F. In disproof of the case, the respondent fielded a witness, DW1, and tendered documentary evidence: exhibits G — L. At the conclusion of evidence, the parties, through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 14th January, 2016, found at pages 177 — 192 of the record,

the lower Court dismissed the suit.

The appellant felt aggrieved by the decision. Hence, on 13th April, 2016, the appellant lodged a 5 ground notice of appeal which is copied at pages 193 — 198 of the record. Subsequently, the appellant, with the leave of this Court, filed an amended notice and grounds of appeal on 15th May, 2018 but deemed properly filed on 3rd February, 2020, which hosts six grounds, wherein he prayed for:
An order of this Honourable Court allowing this appeal and setting aside the decision of the learned trial Judge dismissing the case of the appellant.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 3rd February, 2021.

Respondent’s application.
By a motion on notice, dated 23rd March, 2020 but filed on 9th July, 2020, the respondent, as an applicant, prayed this Court as follows:
AN ORDER striking out the Appellant’s Reply Brief dated 5th day of March 2020 and filed on the 6th day of March 2020.
AND FOR SUCH FURTHER ORDER(S) of this Honourable

Court may deem fit to make in the circumstances of this instant application.

The application is based on 7 grounds. It is supported by a 4 — paragraph affidavit sworn to by Pokyes Kasin, a litigation secretary in chamber of G. Ofodile Okafor, (SAN) & Co. On 3rd February, 2021 before the hearing of the appeal, learned respondent’s counsel, G. Ofodile Okafor, SAN, urged the Court to grant the application.

On the other hand, the appellant confronted the motion with a stiff opposition by filing a 4-paragraph counter-affidavit on 21st July, 2020. It was deposed to by one Miss Gift Eribo, a litigation secretary in the law firm of Galaxy Solicitors. Learned counsel for the appellant, D. O. Penda, Esq. urged the Court to dismiss the application.

Ruling on the application.
An in-depth study of the grounds for the application, amply, discloses that the respondent’s grudge is tucked in the 7 grounds for the application. Ground (g) is the relevant one. It reads: “(g) The Appellant’s Reply Brief filed on the 6th of March 2020 is reopening of his earlier arguments canvassed in this (sic) Appellant’s Brief’. Thus, the marrow of the

application is that the appellant’s reply brief is a repetition of the arguments in the appellant’s brief of argument.

Nidocco Ltd. v. Gbajabiamila (2013) 14 NWLR (Pt. 1374) 350; Nyesom v. Peterside (2016) 1 NWLR (Pt. 1492) 71; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd. (2017) 7 NWLR (Pt. 1563) 42; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343; Okala v. Udall (2019) 9 NWLR (Pt. 1678) 562; Mekwunye v. Imoukhuede (2019) 13 NWLR (Pt. 1690) 439; Unity Bank Plc. v. Ahmed (2020) 1 NWLR (Pt. 1705) 364; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383.

I have, in due loyalty to the expectation of the law, given a merciless scrutiny to the amended respondent’s brief of argument and the appellant’s reply brief of argument — which is in the heat of expunction. Interestingly, both are submissive to easy comprehension. I have married the contents of both briefs. The amended respondent’s brief raised certain legal points that itch for the attention of the appellant. Those new legal points formed the fulcrum of the appellant’s reply. Admittedly, not all the arguments, housed in the reply brief, addressed fresh points. That, however, is not a legal justification for the Court to deny it the deserved stamp of legality. The

Court, in order to meet the ends of justice, has a duty to sift through the submissions therein and garner the relevant ones while ignoring the chaffs. It will smell of mockery of justice to ostracise the reply brief on the footing of admixture of new and old points. In effect, the appellant’s reply brief is not a total clone of the amended appellant’s brief of argument as to brand it with the nomenclature of a duplication/rehearsal of the former. It has not transgressed the adjectival law. I welcome it as a usable brief. In the end, the application, invented by the respondent to smoke life out of the appellant’s reply brief, at its embryo stage, flies in the face of the law. It is highly, unmeritorious. Consequently, I dismiss the application. I make no order as to costs.

Consideration of the appeal.
During the hearing of the appeal, learned appellant’s counsel, D. O. Penda, Esq., adopted the amended appellant’s brief of argument, filed on 13th February, 2020, and the appellant’s reply brief, filed on 6th February, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, G.

Ofodile Okafor, SAN, adopted the amended respondent’s brief of argument, filed on 26th February, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
3.2 Whether the respondent presented lawful and admissible evidence in support of its defence to the appellant’s claims at the trial Court.
3.3 Whether from the totality of the evidence adduced, the trial Court was right in dismissing the appellant’s claims against the respondent.
3.4 Whether the respondent can alter the express written terms of exhibit B in any manner or form other than in writing.

Admirably, learned respondent’s counsel adopted the three issues crafted by the learned appellant’s counsel.

Arguments on the issues:
Issue one.
Learned appellant’s counsel submitted that a party must give evidence to support his pleading or the same deemed abandoned. He relied on Nwokorobia v. Nwogu (2009) All FWLR (Pt. 476) 1868; Agbi v. Ogeh (2006) All FWLR (Pt. 329) 941; Are v. Saliu (2006) All FWLR (Pt.327) 574. He stated that the

respondent’s witness, DW1, testified that he signed his statement on oath in one of the Courtrooms in the presence of his lawyer rather than before a commissioner for oaths. He described the statement of oath as contrary to the law and inadmissible. He cited Buhari v. INEC (2009) All FWLR (Pt. 459) 419; Chidubem v. Ekenna (2009) All FWLR (Pt. 455) 1692; Sections 112 and 117(4) of the Evidence Act, 2011. He asserted that the lower Court’s finding, on the place and person of DW1, amounted to substituting its views for a serious matter which was wrong in law. He referred to Ivienagbor v. Bazuaye (1999) 6 SCNJ 235; CFAO Plc. v. Ibom (2015) All FWLR (Pt. 770) 1348. He reasoned that the presumption of regularity in favour of the statement on oath was rebutted. He insisted that the evidence of DW1 was inadmissible which left the appellant’s case unchallenged. He cited Ezechukwu v. Onwuka (2016) All FWLR (Pt. 824 (148).

On behalf of the respondent, senior counsel contended that the authenticity of DW1’s statement on oath was never an issue before the lower Court nor did the appellant amend the pleadings totally with the evidence from cross-examination. He relied

onLewis & Peat (NRI) v. Akhimien (1976) 7 SC 157; Tewogbade v. Agbabiaka (2001) 5 NWLR (Pt. 705) 38. He said that the DW1 never said he signed in the lawyer’s chambers or in his presence. He asked the Court to take judicial notice of the seal of the lower Court on the statement on oath. He cited Section 122 (1) and (2) of the Evidence Act, 2011; Haruna v. UniAgric Makurdi (2005) 5 NWLR (Pt. 912) 270. He noted that the statement on oath bears the signature of the commissioner for oath and it complied with Section 112 of the Evidence Act, 2011. He highlighted the facts of the cases ofBuhari v. INEC (supra) and Chidubem v. Ekenna (supra) and persisted that they were different from the case in hand. He concluded that the statement on oath was covered by regularity in Section 168 (1) of the Evidence Act.

On points of law, learned appellant’s counsel posited that a party’s case includes his pleading, evidence and address and the appellant joined issue with the respondent on the authenticity of DW1’s evidence. He cited Odoakpu Community Bank Nig. Ltd. v. Ibeto & Co. Ltd (2007) All FWLR (Pt. 350) 1469.

Issue two.
Learned appellant’s counsel

contended that the contract between the parties (exhibits A and B) was a single contract. He observed that the lower Court’s finding on two contracts amounted to wrongly making a different case from the one before it. He relied on lla Enterprises Ltd. v. Umar Ali & Co. (Nig.) Ltd. (2013) All FWLR (Pt. 707) 799; N.T.A. v. N.P.A. (2013) All FWLR (Pt. 709) 1149. He took the view that exhibits B, K and L were made during the subsistence of exhibit A. He claimed that the deduction of the appellant’s money while the renewal contract was subsisting was a breach of the contract. He stated that the parties were bound by contract documents — exhibits A and B. He cited UBN Plc. v. Ajabule (2012) All FWLR (Pt. 611) 1413; Awieh v. Owofio (2014) All FWLR (Pt. 745) 242. He noted that the respondent did not make demand before the deduction of the appellant’s money as agreed by DW1. He described the DW1’s evidence as admission against interest. He referred to Onisaodu v. Elewuju (2006) All FWLR (Pt. 328) 676; Eigbe v. N.U.T. (2008) 5 NWLR (Pt. 1081) 604. He opined that the respondent’s stand that the renewal took effect on 1st August, 2008 was contrary to its

pleading and evidence. He said that the respondent was not consistent in presenting its case. He cited Intercontinental Bank Ltd. v. Brifina Ltd. (2012) All FWLR (Pt. 639) 1192; Ologun v. Fatayo (2014) All FWLR (Pt. 749) 1155. He added that evidence at variance with pleading should be expunged. He referred toUBN Plc. v. Ajabule (supra). He maintained that the renewal was on 27th June, 2008 when the fees were paid (exhibit L) and not the date of remittance to the respondent — 1st August, 2008. He cited Ali v. UBA Plc (2015) All FWLR (Pt. 771) 1482. He explained that the respondent, a disclosed principal, should bear the brunt of the delay. He relied onUBA Plc v. Ogochukwu (2016) All FWLR (Pt. 825) 256. He took the view that the findings of the lower Court were perverse and needed an interference by this Court. He cited APC v. B.S.I.E.C. (2015) All FWLR (Pt. 770) 1367; Adra v. Government of Nasarawa State (2015) All FWLR (Pt. 764) 70; Anekwe v. Nweke (2014) All FWLR (Pt. 739) 1154; Sankey v. Onayifeke (2014) All FWLR (Pt. 749) 1034.

For the respondent, learned senior counsel argued that there were two separate contracts as shown in exhibits A and B

which would be used to resolve the dispute. He relied on CEO Ekhiadolor v. Osayuande (2010) 6 NWLR (Pt. 1191) 423) 6. He noted that exhibit B, a document, would speak for itself and no oral evidence would be used to contradict it. He cited Akubuiro v. Mobil Oil (Nig.) Plc. (2012) 14 NWLR (Pt. 1319) 42; Idufueko v. Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96. He reasoned that the lower Court gave literal interpretation to agreements as required by law. He referred toNika Fishing Co. Ltd. v. Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509. He claimed that the appellant admitted the pleading that at the expiration of 12 months the appellant could not repay the loan and its account was debited. He relied on Order 23 Rule 9 of the High Court of FCT Rules, 2004. He observed that any fund in an indebted customer’s account would be used to settle the debt. He cited Barbedos Ventures Ltd. v. FBN Plc (2018) 4 NWLR (Pt. 1609) 241. He opined that the oral evidence of DW1, under cross-examination, would not alter or contradict the contract in exhibits A and B. He referred toAgbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378. He explained that exhibit B would take effect

on fulfilment of the conditions precedent therein. He cited Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1094) 127. He added that exhibit B was effective from 1st August, 2008 when the appellant’s account was credited as shown in exhibits C and G.

Learned silk posited that the appellant’s argument on disclosed principal was a new issue as it was not canvassed before the lower Court. He stated that the appellant did not obtain leave to argue it and should be struck out. He relied on ACB Plc. v. NTS (Nig.) Ltd (2007) 1 NWLR (Pt. 1016) 596. He reasoned that the appellant failed to show which aspect made the decision perverse. He citedAlelu v. Eze (2015) 13 NWLR (Pt. 1475) 74. He stated that’s what evaluation of evidence entails. He maintained that an appellate Court would not interfere with properly evaluated evidence — as did the lower Court. He cited Alelu v. Eze (supra); Agbabiaka v. Saibu (1998) 10 NWLR (Pt. 571) 54.

On points of law, learned appellant’s counsel posited that the appellant never admitted the pleading on failure to pay on expiration of 12 months as to make Order 23 Rule 9 of the lower Court’s Rules applicable. He

insisted that the issue of disclosed principal was raised before the lower Court. He concluded that a contract would exist when offer was accepted. He cited Abba v. SPDCNL (2013) All FWLR (Pt. 708) 812; Mikano International Ltd. v. Ehumadu (2013) All FWLR (Pt. 667) 658.

Issue three:
Learned appellant’s counsel argued that the proviso to exhibit B did not give the respondent the right to alter its consent in any form, mode or manner other than in writing. He asserted that parties are bound by terms of their contract. He relied on Idufueko v. Pfizer Products Ltd. (2014) All FWLR (Pt. 745) 269; Section 128 (1) of the Evidence Act, 2011; Union Bank v. Ozigi (1994) 3 NWLR (Pt. 333)385.

On the part of the respondent, learned senior counsel submitted that the proviso in exhibit B never mentioned giving notice to the appellant in writing and it should be given its literal interpretation. He relied on King Planet Int’l v. CPWA Ltd. (2014) 2 NWLR (Pt. 1392) 605. He stated that the proviso was disjunctive. He citedIzedonmwen v. UBN Plc (2012) 6 NWLR (Pt. 1295) 1; Mil. Gov. Lagos State v. Adeyiga (2012) 5 NWLR (Pt.1293) 291. He noted that funds that

entered into an indebted customers account would be used to settle the debt. He cited Wema Bank Plc v. Osilaru (2008) 10 (2008) IONWLR (Pt. 1094) 150. He reasoned that the case of Idufueko v. Pfizer Products (supra), cited by the appellant, supports the respondent’s case. He added that Section 128 (1) of the Evidence Act must be read along with its proviso. He concluded that counsel should not mislead the Court. He referred to Ayoade v. Spring Bank Plc (2014) 4 NWLR (Pt. 1396) 93.

Resolution of the issues.
It is germane to place on record, upfront, that a galaxy of documentary evidence were furnished before the lower Court by the parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, seeGonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye(2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51;

Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem(2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V(Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the three nagging issues in this appeal.

For the sake of orderliness, I will attend to the issues in the numerical sequence of presentation by the parties. To this end, I will kick off with the treatment of issue one. The hub of the issue is plain. It chastises the lower Court’s finding that the respondent’s sole witness, DW1, signed his statement on oath before the commissioner for

oaths.

There is a tangential threshold point, erected by the respondent, which cries for the attention and resolution by this Court. It queries the viability of the issue when the parties did not join issue on the validity of the DW1’s statement on oath, id est, whether or not it was signed before a legally authorised officer of the lower Court. In the eyes of the law, an issue is joined on a particular fact, necessitating its proof, when its assertion is disputed by an opposing party, see Galadima v. State (2018) 13 NWLR (Pt. 1636) 357. Indisputably, the appellant’s swipe against the statement on oath of DW1 was an offspring of his responses when he fielded questions in the course of the rigorous cross-examination. This is manifest in page 174 of record.

credibility and reliability of a witness by watching his demeanour in the witness box. Hence, it has been described as a “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”, see Oforlete v. State (2000) 3 NSCQR 243 at 268 per Achike, JSC. Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 466; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179; Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Adama v. K.S.H.A. (2019) 16 NWLR (Pt. 1699) 501; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440.

the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones oozing out of examination-in-chief, seeAdeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321.
Indubitably, cross-examination occupies an Olympian position in our corpus juris especially in the adjectival law. It is the barometer with which to measure the truth in evidence-in-chief of a witness. The veracity of a witness under examination-in-chief is tested by the evidence elicited from him in the furnace of cross-examination. Expectedly, the appellant equipped itself with the necessary “lethal weapon”, in terms of cross-examination, which it harnessed, through the advocative prowess and dexterity of its learned counsel, to douse the damaging and corrosive evidential effects of DW1’s testimony. Thus, the parties ought not to have joined issue on the point since it is a progeny of cross-examination- a right donated to the appellant by the procedural law. It will be incongruous and injudicious to hold that parties should have joined issue on a point that owes its ancestry to

cross-examination which, to all intents and purposes, is invariably posterior to settlement of pleadings-the abode of joinder of issue. This brief dissection, with due reverence, exposes the poverty of the appellant’s counsel’s dazzling argument on this point. It cannot fly.

That propels me to the heart of the issue-the propriety or otherwise of the lower Court’s finding that DW1’s statement on oath was signed before the legally authorised officer of the Court. The DW1’s answers, in the crucible of cross-examination, which gave birth to the appellant’s complaint is embedded in page 174, lines 13 and 14, of the record. Since it is the cynosure of this issue, it is imperative to pluck it out from where it is domiciled in the record, ipsissima verba, as follows:
I signed the witness statement on oath downstairs. I cannot remember the Court room. My lawyer was present.

I am unable, with due respect, to locate in the above excerpt, even with the eagle-eye of an appellate Court, where the witness, DW1 stated that he signed his statement on oath, which transfigured into his evidence-in-chief, before his lawyer. My understanding of the terse viva

voce testimony is that he signed his statement on oath in a Court room that was downstairs and his lawyer was present at the time he singed. There is no law, statutory or case-law, and the learned appellant’s counsel cited none, which debars a party’s lawyer’s presence in course of signing a statement on oath nor invalidates any one signed when his lawyer is present. To accede to the appellant’s enticing supplication, that DW1 signed before his lawyer, will snowball into tinkering with the record. An appellate Court is bound by the contents of the record. It has no vires to read into it what is absent from it nor add into it what is outside the record. In other words, it must construe the record in its exact content. The parties are bound by the record too, see Orugbo v. Una (2002).16 NWLR (Pt. 792) 175; Ogidi v. State (2005) 5 NWLR (Pt. 918) 286; O.O.M. F. v. N. A. C. B. Ltd. (2008) 12 NWLR (Pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) 166, International Bank Plc. v. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi v. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor v. State (2012) 18 NWLR (Pt. 1333) 421;

Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442)1, Brittania – U (Nig.) Ltd. v. Seplat Pet Dev. co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; PDP v. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307. I must pay due fidelity to this hallowed and inelastic principle of law. l therefore, decline the appellant’s inviting solicitation to tinker with the record by tampering with the clear parol evidence of DW1. The law, as x-rayed above, does not grant this Court the unbridled licence to indulge in such untoward and injudicious exercise. In sum, I hold that the DW1’s statement on oath did not defile the provision of Section 112 of the Evidence Act, 2011.

That is not all. The DW1’s statement on oath, which is on the verge of expulsion, colonises pages 110-113 of the record. In the twilight of it, at the bottom of page 113 of the record, there are: sworn to at the Registry of the F.C.T High Court, Abuja on 30th October, 2014 and a signature of commissioner for oaths. These open the gate of inference: “A conclusion reached by considering other facts and deducing a logical sequence from them,” seeMuhammad v. State (2017) 13 NWLR (Pt. 1583) 386) at 420, per Augie, JSC. The law gives the

Courts the latitude to draw inferences, see Okoye v. Kpajie (1992) 2 SCNJ 290 reported asOkonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) 633; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421, Adebayo v. PDP (2013) 17 NWLR (Pt. 1382); NNPC v. Roven Shipping Ltd. (2019 9 NWLR (Pt. 1676). I will reap from this unfettered liberty allotted to the Court by the law.

The irresistible inference, flowing from these catalogued features in the sworn deposition, is that DW1 swore to his statement on oath before the legally designated officer of the lower Court – the commissioner for oaths. I take judicial notice of the designation of the Commissioner for oath as an officer acting in execution of Court process. I take shelter under the sanctuary of the provision of Section 122(2)(j) of the Evidence Act, 2011. It requires no proof, see Joseph v. State (2011) 16 NWLR (Pt. 1273) 226; Akere v. Gov., Oyo State (2012) 12 NWLR (Pt. 1314) 241; Lafia L.G. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Aiyeola v. Pedro (2014) 13 NWLR (Pt. 1424) 409; INEC v. Asuquo (2018) 9 NWLR (Pt. 1624) 305. In essence, having taken judicial notice of the fact that DW1 signed his statement on oath

before the appropriate officer of the Court, the need to prove it is rendered otiose as decreed by Section 122 (1) of the Evidence Act, 2011. This constitutes another serious coup de grace to the appellant’s already weak stance on the issue.

It admits of no argument that the act of signing the DW1’s statement on oath falls, squarely, within the perimeter of judicial or official act. In this wise, the provision of Section 168 (1) of the Evidence Act, 2011 comes in handy. It reads:
168 (1) When any judicial or official act is shown to have been done in a manner substantially regular it is presumed that formal requisites for its validity were complied with.
The case-law has since given its blessing to this statutory presumption of regularity of judicial or official act. In the Latin days of the law, it was couched: Omnia Praesumuntur rite et solemniter esse acta donec prebetur in contrarium, see Torri v. NPSN (2011) 13 NWLR (Pt. 1264), Citec Int’l Etates Ltd v. Francis (2014) 8 NWLR (Pt. 1408) 139; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442) 1; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. See

Nsefik v. Muna (2014) 2 NWLR (Pt. 1390) 151; Ugo v. Ummuna (2018) 2 NWLR (Pt. 1602) 102; Isitor v. Fakarode (2018) 10 NWLR (Pt. 1628) 416; Fidelity Bank Plc v. The M.T. “Taraba” (2018) 12 NWLR (Pt. 1632) 135; Uzodinma v. lhedioha (2020) 5 NWLR (Pt. 1718) 529.
It is trite elementary law that to disrobe any act from reaping from this presumption, an adversary has to furnish rebuttal evidence. I had, at the cradle of this issue, shown that the appellant’s evidence, procured from DW1 in the furnace of cross-examination, was a pseudo-evidence which was impotent to castrate/amputate the right available to the DW1’s statement on oath under the law. In other words, the appellant starved this Court of the necessary concrete/pungent rebuttal evidence to drain the DWI’s act the right to the enjoyment of the beneficient presumption donated to it by Section 168(1) of the Evidence Act, 2011. The net effect is that the appellant failed woefully to discharge the onus probandi, saddled on him by law, to dislodge/neutralise the presumption of regularity. This is another dent on the appellant’s wobbling stance on the issue.

My noble Lords, the appellant, in an avowed bid to

emasculate the DW1’s statement on oath, bemoaned the lower Court’s failure to apply and follow the decisions in Buhari v. INEC (supra) and Chidubem v. Ekenna (supra). In due obeisance to the dictate of the law, I have read those decisions with the finery of a tooth comb. The facts of the cases are totally, incompatible/disharmonious with those of this appeal. The importance of facts in determination of cases cannot be over emphasised. Facts are the forerunners and arrowhead of the law. They act like magnets with the potential to completely, turnaround the fortune or misfortune of a case. In the heydays of the Roman law, they were framed as: Ex facto oritur jus — law has its offspring on the fact, see A.-G., Anambra State v. A. — G., Fed. (2005) 131 LRCN 235 at 2426/(2005) 9 NWLR (Pt. 931) 572 at 638 – 639, Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. The ancient doctrine of stare decisis, which was invented to ensure certainty in law, and which should compel me to apply those cases, thrives where facts of cases are in pari materia. It is lame where the facts of cases are not on all fours. Since the

facts of the two sets of cases are distinguishable, the law does not grant me the imprimatur to kowtow to the decision in those two cases. I am, therefore, impelled by law to decline the appellant’s inviting supplication on the footing of facts differential. The lower Court did not err in law when it declined similar invitation.

In the light of this expansive legal anatomy on signing of deposition, conducted in due consultation with the law, the DW1’s statement on oath, which ultimately metamorphosed into his evidence-in-chief, was executed in consonance with the injunction of the provision of Section 117 (4) of the Evidence Act, 2011. On this note, I crown it with the deserved toga of admissibility. In effect, the lower Court’s finding on the issue is an immaculate one. In the result, all the diatribes, which the appellant heaped against the solemn finding, pale into insignificance. It will smack of judicial sacrilege to intervene in a finding that has not showcased any hostility to the law. In the end, I resolve the issue one against the appellant and in favour of the respondent.

Having dispensed with issue one, I proceed to settle issue two. The

kernel of the issue is simple. It quarrels with the manner the lower Court evaluated the evidence before it. Put bluntly, the appellant accused the lower Court of improper evaluation of evidence because the judgment was against the weight of evidence.

credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC 91; Anyaoke v. Adi (1986) 2 NSCC, vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009) 15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.
The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two

different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 222; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 533; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652)1635; Oguntade v. Oyelakin (2020) 6 NWLR (Pt. 1719) 41. I have matched the decision of the lower Court with the positions of law x-rayed above with a view to identifying their infractions or compliance.

There is one adjunct/tributary point that yearns for early resolution. The respondent greeted the appellant’s complaint, on disclosed principal, with a vehement opposition. The registered objection is staked on the ground that it was/is a fresh as it was not canvassed before the lower Court.

A fresh issue is one which was not adjudicated and pronounced upon by a lower Court whence an appeal emanated, see Olalomi Ind. v. NIDB

(2009) 16 NWLR (Pt. 1167) 577; C.G.G. (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1459) 577. An appellate Court is not clothed with the garment of jurisdiction to entertain a fresh issue save with the leave of Court sought and obtained, see Odom v. INEC (2015) 6 NWLR (Pt. 1456) 527; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Yahaya v. Dankwambo (2016) 7 NWLR (Pt. 1511) 284; Obasi v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (Pt. 1539) 335; Awala v. NITEL Plc (2019) 15 NWLR (Pt. 1695) 372; Ibrahim v. APC (No. 1) (2019) 16 NWLR (Pt. 1699) 444. Leave, in this context, connotes permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; (1987) 2 NSCC Vol.18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACE Int’l Ltd (2008) 3 NWLR (Pt. 1073) 179; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383.

I have browsed the record, the bedrock of every appeal, especially in the domain of the appellant’s pleading — the statement of claim and reply to the statement of defence and written address. The appellant appropriately, promptly and sufficiently raised the issue of disclosed principal in those processes. The lower Court

alluded to it as decipherable from pages 189 and 190 of the record. It then means that the point is not a fresh issue as to warrant the leave of the Court before raising it. Therefore, the appellant acted within the bounds of the law. I must add, apace, that the appellant has only scored a barren victory on this finding that favours it. The reason is not far-fetched. The auxiliary issue bears no relevance to the determination of the focus of the issue.

Now, the appellant’s foremost grievance, indeed its trump card on the issue, appertains to the lower Court’s finding that there were two contracts between the contending parties. A contract is a legally binding agreement between two or more persons whereby rights and duties are acquired by one party in return for acts or forbearances on the part of the other, see Best (Nig) Ltd. v. B.H (Nig) Ltd. (2011) 5 NWLR (Pt. 1239) 95. For there to be an enforceable contract, there must co-exist a precise offer, an unqualified acceptance, a legal consideration and intent to create legal relation. In other words, there must be the mutuality of purpose and intention between the contracting parties. In the legal

province, that translates to the meeting of the minds of the contracting parties, or consensus ad idem, on the terms of the agreement. In the view of the law, an offer, a definite indication by an offeror to an offeree that he is willing to conclude a contract on his proposed terms if accepted by the other, may be verbal, written or implied from the conduct of the offeror. Where an offeree does not accept an offer, then it mutates to a counter-offer – a statement by an offeree that has the legal effect of rejecting an offer and proposing a fresh offer to an offeror. These fundamental elements of a binding contract have been sanctified by the Supreme Court in sea of judicial authorities, see Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547; Neka B.B.B. Mfg. Ltd. Co. v. A.C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521, Chabasaya v. Anwasi (2010) 10 NWLR (Pt. 1201) 163; Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95; A.G., Rivers State v. A.-G., Akwa lbom State (2011) 8 NWLR (Pt. 1248) 31; Bilante Int’l. Ltd. v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96;

BPS Constr. & Engr. co. Ltd. v. F.C.D.A. (2017) 10 NWLR (Pt. 1572) 1; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343 N.R.M.A & F.C. v. Johnson (2019) 2 NWLR (Pt. 1656) 247.

The casus belli between the feuding parties orbits around the interpretation of the respondent’s letter of offer of share plus loan to the appellant dated 20th June, 2007 and 30th June, 2008-exhibits A and B respectively. They occupy pages 90 and 91 of the record respectively. Incontestably, the two letters, exhibits A and B, come squarely, within the four walls of documents in that their contents are “expressed or described upon any substance by means of letters, figures or marks”, as ordained in Section 258 of the Evidence Act, 2011. Nota bene, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, see Ojokolobo v. Alamu(1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACE v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008)2 NWLR (Pt. 1071)

378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt. 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon. of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due respect to these legal commandments on canons of interpretation of document in order not to insult the law.

I have, in due allegiance to the desire of the law, given a clinical examination to the two documents-exhibits A and B. There are striking similarities between the contents of the two. At the foot of both of them, the appellant endorsed the offers thereby making them classic exemplifications of binding contracts. Both share certain common mission and hallmarks, videlicet: to enable the appellant acquire shares through UBA Stockbrokers Limited, repayment mode and shares

as collateral. However, while exhibit A is offer for shareplus loan, exhibit B is an offer of renewal of shareplus loan. The loan sums and interest rates chargeable on them are different. The tenure of the loan in both are not congruent-exhibit A had a duration of 12 months while exhibit B allowed for 180 days (6 months) period. Both showcased conditions-precedent but divergent in their number and nature. It flows from the configuration of these documents, that the contracts in exhibits A and B are far from being one and the same contract. Although, both enjoy symbolic relationship in some portions of their contents, but that in exhibit B is not parasitic on the one in exhibit A in terms execution and performance. They are independent and separable contracts. The one in exhibit B, even though it derives its paternity from that in exhibit A, cannot be merged with the latter to assume a composite contract. It stems from these distinct features in the two contracts, that the lower Court did not offend the law in its finding that there were two contracts between the parties. I endorse, in toto, the solemn finding.

Another grouch nursed by the appellant was

weaved on the debit of his sum of N1,078,000.00 (One Million, Seventy-Eight Thousand Naira) by the respondent on 8th July, 2008. It was categorised as illegal. To start with, I had just found that there were two parallel contracts, warehoused in exhibits A and B, between the parties. I find no extenuating circumstances that will compel me to disturb that finding reached in consonance with the law. The finding, to a large extent, douses the efficacy/effervescence of that complaint.

There is no gainsaying the fact that the two agreements, as typified in exhibits A and B, are written contracts. Their terms are encapsulated in the two documents. It is trite law that the parties and Courts are bound by the terms of the contracting parties. In other words, the law does not allow either the parties or the Courts to add to or subtract from terms of the contract reached by way of consensus ad idem, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd.(supra); JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 19 NWLR (Pt.1225) 495; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111; A. G. Ferrero & Co. Ltd. v. H. C. (Nig.) Ltd (2011) 13 NWLR (Pt. 1265) 592; Nwaolisah v. Nwabufo

(2011) 14 NWLR (Pt.1268) 600; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278); P.M. Ltd. v. The “M. v. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Uwah v. Akpabio (2014) 7 NWLR (Pt. 1407) 172; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Cannitec Int’l Co. Ltd. v. Solel Bonech (Nig.) Ltd. NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd.(2018) 2 NWLR (Pt. 1602) 35; Adedeji v. Obajimi (2018) 16 NWLR (Pt. 1644) 146; Okoro v. Okoro (supra); Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219.

In keeping with the spirit and letter of the law, I have given a microscopic examination to the contract wrapped in exhibit A which is reflected at page 90 of the record. It is rebellious to equivocation. Doubtlessly, it is a loan which signifies a sum of money lent to a borrower with interest, see Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 16 al) 343. It displays a maturity period of 12 months commencing from 2nd July, 2007 to 1st July, 2008. Put differently, it was a fixed term contract. The rudimentary position of the law is that a debt is repayable on demand or on notice given or upon any other

condition agreed on by the contracting parties. In a banker-customer relationship, there is an implied term that a right of repayment of an overdraft/facility does not accrue/mature until a demand is made or a notice given when there is no agreed specific date for repayment, see Ishola v. SGBN Ltd. (1997) LPELR-1547/(1997) 2 NWLR (Pt. 488) 405; Agbabiaka v. FBN Plc (2020) 6 NWLR (Pt. 1719) 77. When there is agreed specific date, whether a demand is made or not, the contract expires on the due date thereby making failure to pay a breach of the contract, see Ijale v. A.G. Leventis (1961) All NWLR 762 at 771; A.I.B. Ltd. V. I.D.S Ltd. (2012) 17 NWLR (Pt. 1328) 1.
It is discernible from the clear content of exhibit A that it was a quintessence of a fixed term contract. Its birthday was 2nd July, 2007. The parties agreed on its lifespan-12 months-which expired, by effluxion of time, on 1st July, 2008. It follows that when the contract, in exhibit A, came to an end on 1st July, 2008, the appellant was in flagrant breach of it vis a vis the loan sum and its accrued interest. A breach of contract occurs when a party to the contract, without any lawful

justification/excuse, fails, neglects or refuses to perform his obligations under the contract or incapacitates himself from performing same or in a way backs down from carrying out a material term, see Adeoti v. Ayorinde (2001) 6 NWLR (Pt. 709) 336; Best (Nig.) Ltd. v. B.H (Nig.) Ltd (supra). Since the appellant, unjustifiably, violated the terms of the contract, for failure to pay at the expiration of the time frame for the loan facility, the respondent did not run foul of the law when it deducted the appellant’s sum of N1,078,000 on 8th July, 2008. This is because, the deduction date 8th July, 2008, was posterior to the expiration date of the fixed term contract. In that wise, the respondent was entitled ex debito justitiae to repayment without any notification to the appellant. On this score, the lower Court’s finding, that the deduction had the blessing of the law, is unassailable. It is not an affront to law to warrant any intervention by this Court.

Let me place on record, in the interest of clarity and to forestall any ambiguity, that the above legal exposition drowns the fuss made by the contending parties on the commencement of the contract in

exhibit B. It renders all the scintillating incompatible arguments thereon academic. A resolution of it will not fetch any judicial utilitarian value to either the appellant or the respondent. A Court of law is not cloaked with the garment of jurisdiction to entertain academic issues.

In due obedience to the law, I have consulted the record, the spinal cord of every appeal. My port of call is the residence of the judgment of the lower Court which is sought to be impugned. It spans pages 177-192 of the clean record. The lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, viva voce and documentary, proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties. It found that the respondent’s pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248;

J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu(2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The lower Court found, rightly in my view, that the evidence of the respondent, based on their qualitative nature, preponderated over those of the appellant’s. The net effect is that the appellant failed woefully to prove his case.

Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399.(Pt. 1372) 474; APC v. Karfi (2018) 6 NWLR (Pt. 1616) 479; Ojobo v Moro (2019) 17 NWLR (Pt. 1700) 166.

The appellant stigmatised the finding/decision of the lower Court as perverse. Since perversion is the cynosure of the point, it is germane to x-ray its purports for easy appreciation. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court

takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onykwelu v. Elf Pet (Nig.) Ltd.(2009) 5 NWLR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo(2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki(2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179; Adeokin Records v. M.C.S.N.(Ltd)/GTE)(supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed.(2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Uzodinma v. Emeka lhedioha (2020) 5 NWLR (Pt. 1718) 529.

I have, in total fidelity to the desire of the law, situated the judgment, sought to be decimated, with the elements of perverse decision adumbrated above. The raison d’etre behind the juxtaposition is

simple. It is to discover if the judgment is mired in the intractable nest of the elements of perversion chronicled above. The judgment of the lower Court, which is submissive to comprehension, is not antithetical to the pleadings and evidence presented before it by the feuding parties. At the same time, the lower Court did not import alien/foreign matters into the judgment. It utilised the evidence the parties presented before it as catalogued above. The finding does not, in the least, smell of any charge of perversity levelled against it by the appellant. In effect, the decision of the lower Court is not marooned in the murky ocean of perversion to magnet the intervention of this Court.

In the twilight of the succinct judgment, at pages 191 and 192, of the record, the lower Court declared.
I also found that the Defendant was within their right by the terms of the agreement in Exhibits A & B when they debited the sum of N1,078,000.00 on 8/7/2008 for the repayment of the initial share plus.
Furthermore, I find that the Plaintiff is in breach of the terms and conditions of the share plus loan by not repaying the loan within the

stipulated maximum term of 12 months without renewing the loan before expiration.

Flowing from the above juridical survey, done in due consultation with the law, the lower Court’s ultimate and solemn finding is an impeccable one. It did, in the least, fracture the law to render its faultless finding guilty of the accusation of perfunctory evaluation of evidence hurled against it by the appellant. In fact, the allegation is a phantom as well as uncharitable and unsustainable. On this premise, l, with due respect, dishonour the learned appellant’s counsel’s salivating invitation to sacrifice the finding, on the want of proof of the claim, on the underserved altar of improper evidential evaluation. In the end, I have no choice than to resolve the issue two against the appellant and in favour of the respondent.

It remains to thrash out issue three. The nucleus of the issue is clear and canalised within a narrow compass. It queries the respondent’s alteration of the terms in exhibit B other than in writing. In the first place, my finding under issue two, which legalised the deduction of the appellant’s fund, N1,078,000 (One Million, Seventy-Eight Thousand Naira

Only) comes in handy. I import and propagate it in this issue. The solemn finding, which I am drained of any legal justification to upset, erodes/deflates the point being brandished and paraded by the appellant on this issue.

It is imperative to extract the controversial term from its abode in exhibit B, verbatim ac litteratim, thus:
Notwithstanding the terms and conditions of this offer, the Bank reserves the right to withhold disbursement and/or demand immediate repayment and/or alter the terms at any time.
The term is replicated in exhibit A. The parties employed the phrase: “Notwithstanding the terms and conditions of this offer” in the clause. Notwithstanding is, usually, intended to express a clear intention to exclude any impinging/impeding effect of any other provision in a legislation so that the provision it introduces will fulfill itself. Therefore, the import of the word, “notwithstanding”, a phrase of exclusion; is that the section supersedes, controls, and overrides all other provisions of a legislation, see Olatunbosun v. Niser Council (1988) 1. NSCC 1025; A.G., Fed. v. Abubakar (2007) 8 NWLR (Pt. 1035) 117; Ugwuanyi v. Nicon Ins. Plc

(2013) 11 NWLR (Pt. 1366) 546; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; A.-G., Lagos State v. A.G., Fed. (2014) 9 NWLR (Pt. 1412) 217; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301; A.-G., Bauchi State v. A.-G. Fed. (2018) 17 NWLR (Pt. 1648) 299.
It is my humble view that this hallowed principle of law, anchored on the usage of the word “Notwithstanding” in statutes, applies, mutatis mutandis, to private documents and agreements. On this premise, the clause holds a premier position in the domain of the exhibits A and B. Its aftermath is obvious. Every other clause in exhibits A and B must, willy nilly, bow to its preeminence/superiority vis a vis the enforcement of the terms of the contracts therein. It is the lord of all other clauses in the contracts. In view of its kingly position in the contracts, the respondent bank was invested with the right to, inter alia, alter the terms at any time during the currency of the contracts. It endowed it with the monopoly of this right. The almighty clause allocated blank power to the respondent. The clause is bereft of the manner or form of

the exercise of the power of alteration. Nor is it specified, in the clause, that the alteration must be reduced into writing. Alas, the appellant assigned to the respondent a carte blanche to alter/tinker with the terms of the contracts at any time. What a blank cheque!
In the firmament of contract, a party owns the blame where, in his own volition, he binds himself with draconian clause which is inimical to his contractual interests and rights. In such a case, the Court’s judicial hands are tied in the sense that it is not clothed with the vires to rewrite the harsh term. The party cannot treat the term with contempt and disdain. Thus, in the absence of mistake, fraud, deception or misrepresentation, a party must obey his terms of his contract whether they are favourable, gainful, beneficial or disfavourable or hostile to his interest. It is encapsulate in the Latin maxim: Pacta sunt servanda-contracts that are not illegal or fraudulent must be observed, see A-G., Rivers State v. A.G., Akwa lbom State (2011) 8 NWLR (Pt. 1248) 31. That is the whole essence of sanctity of contract. The appellant, in his infinite bequeathed and signed away his rights in

the contract which enabled the respondent to wield enormous power in its execution. Indisputably, the appellant exercised his legal rights to freedom of contract. The bounden duty of this Court is to pay due loyalty to the terms which both parties agreed on. It will be doing undue violence to the ageless doctrine of sanctity of contract to shirk from this responsibility. This Court is bound to respect the wishes of the feuding parties which are deeply rooted in the contracts. In effect, the respondent’s alteration of the contract did not disclose any enmity with the law to warrant any interference by this Court. In the end, I will not hesitate to resolve the issue three against the appellant and in favour of the respondent.

On the whole, having resolved the three issues against the appellant, the destiny of the appeal is obvious. It is devoid of any grain of merit and liable to the reserved penalty of dismissal. Consequently, I dismiss the appeal. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of

the judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA. My learned brother has exhaustively dealt with all the issues in the appeal. I have nothing more useful to add. I adopt the reasoning and conclusions in judgment as mine.
I dismiss the appeal for lacking in merit.
I abide by all other orders in the judgment including the order as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in advance the judgment of my learned brother, Obande Festus Ogbuinya, JCA, in which the facts leading to this appeal and the issues in contention have been expansively set out.

My learned brother has meticulously dealt with the issues in dispute. On the 1st Issue, with regard to the challenge of the Appellant to the admissibility of the witness statement of DW1 as having not been signed before the Commissioner for Oaths, my Lord quite rightly rejected the Appellant’s contentions, as there is nothing in the Record of Appeal to suggest this.

Even if this were to be the case, it is an objection that should have been raised before evidence was taken. Rather than do so, his counsel

cross-examined this witness at length, on an allegedly inadmissible witness statement. He has thereby lost any right to impugn the statement document, I hold.

Counsel, and indeed Litigants, should desist from this all-too-common practice of clutching at all manner of technicalities to truncate a case, rather than face the substance of the dispute between them.

Furthermore, as rightly contended by the learned Silk for the Respondent, this is a new issue that was not canvassed before the lower Court. While the law does not preclude a new issue not raised in the lower Court from being raised on appeal, the same must be with the leave of the appellate Court first had and obtained. See Oforishe V. Nigerian Gas Co. Ltd. (2018) 2 NWLR Part 1602 Page 35 at 57 Para. F — G per Rhodes — Vivour JSC; Sogunro V. Yeku (2017) 9 NWLR Part 1570 Page 290 at 311 Para. C per Nweze JSC.
Leave of this Court was unfortunately not sought.

It is also settled law that if a party at the trial, in the course of cross-examination, extracts some evidence which, if accepted could decide an issue between the parties if it wishes to make use of such evidence,

must first amend his pleadings. See Union Bank Plc V. Sparkling Breweries Ltd. (1997) 3 NWLR Part 491 Page 29 at 57 Para. E — F per Nsofor JCA.

Thus, not only is the evidence allegedly extracted not detrimental to the admissibility of the statement on oath of DW1, the pleadings of the Appellant were not amended to reflect the alleged admission.

With regard to the 2nd and 3rd issues revolving around the sanctity of the contract between the parties, where, as in this case, the terms of the contract are plain and clear, the meaning to be placed on it is the obvious result of the terms used. The Court, I hold, is bound to respect its sanctity and lacks the vires to add to or subtract from the terms thereof. See Lewis V. UBA Plc (2016) 6 NWLR Part 1508 Page 329 at 357 Para. G – H per Kekere – Ekun JSC; Idufueko V. Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 115 Para. C — D per Galadima JSC; Golden Construction Company Ltd V. Stateco (Nig.) Ltd. (2014) 8 NWLR Part 1408 Page 171 at 195 Para E — G per Ogbuinya JCA.

The transaction in question was duly accorded the interpretation obvious from the terms thereof by the

lower Court, I hold. For these and the fuller reasons given by my learned brother in his judgment, I also resolve all the issues formulated by the Appellant against him and accordingly dismiss this appeal. The judgment of the lower Court is consequently affirmed. Parties are to bear their respective costs.

Appearances:

O. Penda, Esq. For Appellant(s)

Ofodile Okafor, SAN, with him, I.J. Michael, Esq. For Respondent(s)