F. K. CONSTRUCTION LIMITED ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION (NDIC) & ANOR (2013)

F. K. CONSTRUCTION LIMITED ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION (NDIC) & ANOR

(2013)LCN/6257(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of May, 2013

CA/L/236/2012

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

1. F. K. CONSTRUCTION LIMITED

2. TRADERS INTERNATIONAL LIMITED – Appellant(s)

AND

1. NIGERIA DEPOSIT INSURANCE CORPORATION (NDIC)

2. CENTURY MERCHANT BANK-IN-LIQUIDATION – Respondent(s)

RATIO

DEFINITION OF A CONTRACT

To see our way through to the real bone of contention between the parties, it must be borne in mind that a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law – see Black’s Law Dictionary, 8th Ed., where it is also defined as “a promise or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty”. The Appellants referred us to the five ingredients that must be present in a valid contract. All five ingredients are autonomous and equal in the sense that a contract cannot be formed if any of them is absent – see Orient Bank (NIG) Ltd. v. Bilante International Ltd. (1997) 8 NWLR (pt. 515) 37, B.F.I.G. v. B.P.E (2008) ALL FWLR (Pt.416) 1915 and Metibaiye v. Nareili International Ltd. (2009) 16 NWLR (Pt. 1167) 326. Parties must reach a consensus ad idem for the contract to be regarded as binding and enforceable -see Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (Pt.1092) 339, P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (pt. 1055) 478. The two or more minds must meet at the same point, event or incident. Where they say different things at different times they are not ad idem and no valid contract is formed. The meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract – see Dodo v. Solanke (2007) ALL FWLR (Pt. 346) 57. PER AUGIE, J.C.A.

WHETHER OR NOT A CONTRACT WHICH MUST BE IN WRITING CAN OLY BE VARIED BY AN AGREEMENT IN WRITING

Thus, there is nothing in Exhibit L to indicate that the original agreement between the 2nd Respondent and the 1st Appellant (F.K. Construction Co. Ltd.) for the sale of the fixed and moveable assets of the said Company was added to or incorporated in Exhibit L, after the refund of the initial deposit of N5.8 Million. Besides, if Exhibit L was to be varied in any way, the variation must be in writing – see John Holt Ltd. v. Lafe (1939) 15 NLR 14 at 19, wherein it was held that –“If, as a matter of contract, the parties agree that the terms of the original agreement shall be varied, the variation must be in writing, or evidence of those new terms will be inadmissible.”See also Bijou (Nig.) Ltd. v. Osidarohwo (1992) 6 NWLR (Pt.249) 643 and Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (supra) where the Supreme Court held that –“It is now settled that a contract, which must in law be in writing, can only varied by an agreement in writing… In other words, where a contract is in writing, any agreement, which seeks to vary the original agreement, must itself be in writing”.

AMINA ADAMU AUGIE, J.C.A. (Delivering the leading Judgment): The 2nd Respondent was a licensed Bank until it went into liquidation, and was taken over by NDIC, the 1st Respondent. In May 1994, while the 2nd Respondent was still carrying out its normal banking business, it offered to sell the fixed and movable assets of a Company that was indebted to it – Kano Plastic Company Ltd. After a walking assessment of the Factory in Kano, the Managing Director (MD) of the 1st and 2nd Appellants made an offer in writing dated 5/5/1994, and it reads –

“I refer to the visit to the said factory on the 4th May, 1994 accompanied by Mr. Yusuf Ishak (Head Corporate Banking) to offer you to buy the fixed and moveable assets of KANO PLASTICS COMPANY LTD. for the sum of N33,000,000.00 (Thirty-Three Million Naira Only). It is also understood that the company is free of all encumbrances and liabilities. We also endeavour to re-employ, in priority, as many staff as possible from the defunct company when and as needed. I believed that our offer is agreeable to you and looking forward of hearing from you soon”. …Signed Fahim Khouri (MD).

The 2nd Respondent replied with a letter of acceptance dated 6/5/1994; it reads –

“We refer to your letter dated 5th May 1994 on the above subject matter and write to confirm our acceptance on your offer to buy the fixed and movable assets of Kano Plastic Limited. Our acceptance is based on the following terms and conditions:

Purchase Price: N33 Million (Thirty Three Million Naira)

Payment Terms:

(i) Immediate payment of 25% (N8.25 million) of the purchase price.

(ii) Full and final payment of 75% percent (N24.75 million) of the purchase price on the signing of the relevant documents. This should be completed within two weeks…

We look forward to receiving your cheque for N8.25 million being the 25% of the purchase price to enable us initiate the process of documentations and transfer of title documents. Thank you. Yours faithfully – For CENTURY MERCHANT BANK LIMITED…”

By a letter dated 16/5/94, the Appellant forwarded the said sum, and the 2nd Respondent, in a letter dated 17/5/94, acknowledged receipt of “two bank drafts – totaling N8,500,000.00 as part payment for the acquisition of Kano Plastics Ltd”. The Appellants waited for some time to have the agreement concluded only to receive a letter from the 2nd Respondent dated 10/6/1994, which reads thus –

“This is to formally inform you that continued action on your purchase of the fixed and movable assets of Kano Plastics Limited… has been stalled by reason of the following recent developments…

1. An application filed on behalf of the staff of Kano Plastics Limited as minority shareholders seeking that they be joined in the court action as defendants.

2. A further application on behalf of the staff of Kano Plastic that everything achieved done and/or agreed till date in respect of our claim against the company be set aside by the Court on the basis that these were and are not in the interest of all of the shareholders of the company.

3. The unauthorized take-over by persons claiming to be shareholders & directors of Kano Plastics Limited of the movable assets already attached by the officials of the court in execution of the judgment debt (N11.8 million) owned by the company…

…In consequence of the above stated facts, we regret that we must ask you to bear with us until our solicitors may have successfully rebuffed the mischievous attempt being made to scuttle the agreement, which forms the basis of the offer made to your company and our receipt of the deposit paid by your company. In concluding this letter, it is important to restate that our meetings that week with Kano Plastic Limited’s own solicitor, have revealed that the original understanding is still firmly in place,even though it is necessary that the above mentioned development should first be resolved before progress on completion of our agreement can be achieved. As soon as this has been done, we shall immediately revert to you for the purpose of completing the agreement reached with you”.

The 1st Appellant got tired of waiting and requested for its deposit with a promise to pay when the 2nd Respondent resolves its problems with the Company, and the 2nd Respondent refunded the deposit via a letter dated 19/9/94, which reads –

“We enclose herewith our TCB cheque… for N8.5 million representing full refund as per your request of your deposit made on 16th May, 1994 for the purchase of assets of Kano Plastics Limited. This refund became necessary, as a result of some unforeseen developments which has impaired the conclusion of the transaction…”

In January 1995, the 1st Appellant acted through its nominee – the 2nd Appellant, to execute an Agreement dated 27/1/1995 for the moveable assets only; it reads –

“…WHEREAS:

1. On 18/11/1993, Judgment was entered by the High Court of Kano State,in favour of Century against Kano Plastics Limited… in the sum of 10% per annum from 19/11/1993 until liquidation of the Judgment sum and costs of N1,000.00.

2. On the 23rd & 15th days of March 1994 and the, 21st day of July, 1994 respectively, the Sheriff of the High Court of Kano State, levied execution and attached the movable assets of Kano Plastics…

3. By an Ex-parte Order mode by the High Court on the 13th day of December 1994… Century was granted leave to effect the sale by private treaty of the attached movable assets on the terms of which the Ex-Parte Order was made towards the liquidation of the Judgment Debt owed to it by Kano Plastics.

4. As at the 31st day of December 1994, the Judgment Debt (Inclusive of interest and costs) owed by Kano Plastics to Century was the sum of N13,136,624.63.

5. Acting in reliance on the Ex-parte Order, Century reached agreement with Traders International to the private sale and purchase by Traders International of the attached movable assets for the negotiated (price) of N11,800,000.00.

6. By letter dated 19/1/1995, Century’s Solicitors… applied to the Sheriff for his approval/endorsement of the agreement reached between Century and Traders International in respect of the private sole of the attached movable assets.

7. By letter dated the 23/1/1995, the Sheriff informed Century’s Solicitors of his approval/endorsement of the agreement reached between Century and Traders International in respect of the private sale of the attached movable assets.

NOW THIS AGREEMENT WITNESSETH as follows:

IN CONSIDERATION of the payment of the sum of N11,800,000.00 (receipt whereof Century hereby acknowledges) and in accordance with the terms of the Ex-parte Order to this effect, Century hereby sells and Traders International hereby buys ALL the attached movable assets more particularly specified in the various inventories of the High Court annexed hereto.

Traders international shall be deemed to have taken due delivery of the attached movable assets on the execution or this Agreement and its receipt of a letter of authority from Century for the removal of the attached movable assets…”

The Appellants had not removed the said properties before the 2nd Respondent went into liquidation, and the 1st Respondent took over its assets and liabilities. Put out by the sale of only the moveable assets to them, the Appellants filed an action at the Federal High Court, Lagos, where they claimed the following reliefs –

(1) A Declaration that the plaintiffs are the Lawful purchaser of the premises known as Kano Plastic Ltd. (Sharada Industrial Estate) Kano having paid part of the agreed purchase price for both the movable and the immovable property.

(2) A Declaration that the 1st Defendant is bound by the agreement and the offer which was accepted by the plaintiffs and all the processes leading to the sale of the movable and immovable property of Kano Plastic conducted by the 2nd Defendant before Liquidation.

(3) A Declaration that the 1st Defendant cannot re-open or renegotiate the contract with any other person other than the plaintiffs said contract having been concluded by the 2nd Defendant before Liquidation.

(4) An order of perpetual injunction restraining the 1st Defendant whether by itself, its agents, servants, assigns and or anybody acting for and on its behalf from doing anything by way of sale/transfer of either the movable and immovable property of Kano Plastic (Sharada Kano).

(5) An order directing the 1st Defendant to accept the balance of the sum of N16,000,000.00 being balance payment for the movable and immovable property of Kano Plastic Limited Sharada Phase II Kano, which was sold at an agreed Price of N33,000,000.00 out of which the Plaintiffs paid the sum of N71,000,000.00.

(6) A Declaration that the 1st Defendant was in breach of its duties and obligations to the Plaintiffs having recklessly abandoned the contract entered into between the 2nd Defendant before Liquidation, and the Plaintiffs.

To prove their case, the Appellants called one witness, and tendered Exhibits A – J.

The Respondents also called one witness, and tendered Exhibits K – N in evidence. They admitted that there was an agreement between the parties, however, they contended that by the return of the deposit made by the Appellants, the original agreement to sell both the moveable and immovable assets of Kano Plastics Co. Ltd., was determined; and they thereafter entered another agreement to sell only the moveable assets of the Company for N11.8m, which the 1st Appellant paid.

They denied receiving any other sum for the immoveable assets of the Company.

Parties filed and exchanged addresses, and in his Judgment delivered on the 14th of November 2011, the learned trial Judge, Archibong, J., held as follows –

“I find as a fact that the parties only eventually contracted for the sale of the moveable assets of Kano Plastics Limited. I find as fact that the 2nd Defendant received N11,800,000 in full and final settlement for those moveable assets. There are no outstanding terms of that contact, Exhibit L, to specifically enforce: The plaintiffs aver that some of the moveable assets they purchased were left in Kano Plastic Limited premises as of the filing of this action on 12/9/2000. The Defendants only acknowledge certain items were still on the premises of Kano Plastics Ltd. as of 18/1/95. There is no claim for restitution of the moveables… and such restitution is not part of the reliefs sought. I will, however, declare that the property in the left on the premises of Kano Plastics Ltd. as of 1/9/2005 are the property of the Plaintiffs. All the reliefs sought herein by the Plaintiffs are denied and the suit dismissed”.

Dissatisfied with the decision of the lower court, the Appellants appealed to this court with a Notice of Appeal containing 7 Grounds of Appeal, and they distilled three Issues therefrom in their Brief of argument settled by Tunji Ojuokaiye Esq. The Respondents adopted the issues formulated by the Appellants in their Brief of Argument prepared by Obiora Atuegwu Egwuatu Esq. The said three Issues are –

(1) Whether the parties contracted for the purchase of both the moveable and immoveable properties of Kano Plastic Co. Ltd.

(2) Whether the finding of the lower court was not perverse, which has occasioned miscarriage of justice to the Appellants, when it restricted itself to the Agreement in Exhibit “L” alone to determine the issues between the parties.

(3) Was the lower Court not wrong when it failed to properly evaluate led by the parties before the court and held that the Appellants failed to prove their case.

The Appellants argued under their issue 1 that it is clear from their pleadings and the evidence of their witness, Mr. Lawal Abdullahi (PW1) that they contracted with the 2nd Respondent for the purchase of the moveable and fixed properties. They referred us to the basic ingredients of a valid contract, citing Omega Bank Nig. Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547 and Tanarewa Nig. Ltd. v. Arzai (2005) 5 NMLR (Pt. 919) 593, and argued that each one – offer, acceptance, consideration, intention to enter legal relationship and consensus of the parties is present in the contract for the purchase of both the fixed and moveable assets.

They submitted that any evidence that is not challenged and controverted should and ought to be admitted and relied upon by the court, citing Arabambi v. Advanced Beverages Ind. Ltd. (2005) 19 NWLR (Pt.959) 1; that the lower Court’s finding that parties only eventually contracted for the sale of the moveable assets is perverse and has occasioned a miscarriage of justice; that the Respondents, attempt to deny receipt of the bank draft dated 18/01/95 for N5,200,000.00 is an attempt to deny the obvious since the two other bank drafts for N8,500.000.00 dated 13/1/95 and N3,300,000.00 dated 18/1/95 were forwarded along with the one dated 18/1/95 for N5,200,000.00 on the same date; and that they did prove that the sum was paid to the Respondents as part payment for the fixed assets.

On the construction of contract documents, they referred to the decision of Aderemi, J.C.A. (as he then was) Anuruba v. Ebenator Community Bank Ltd. (2005) NWLR (Pt. 933) 321 at 344, and that of the Supreme Court in Adetoyin Oladeji Nig. Ltd. v. Nigeria Breweries Plc. (2007) 1 SC (Pt. II) 183 at 195, and urged us to “cursorily discover the intention of parties and view property their contemplation in entering into the agreements in Exhibits A, B and L” and to also “impute an objective intention into the agreement between the parties as evidenced in the tendered Exhibits that the common intention of the parties is to transfer by purchase the fixed and moveable assets of Kano Plastics Ltd. to the Appellants”.

They further argued that the evidence of PW1 stands uncontroverted, credible and ought to be relied upon on the issue that the payment of the sum of N17 Million was in respect of the fixed and moveable assets, citing Chanasaya v. Anwasi (2010) 3 – 5 SC (Pt.1) 208; and that having led uncontroverted evidence, they are bound to succeed in his case, as civil cases are decided on the preponderance of evidence, citing Arabambi v. Advanced Bev. Ind. Ltd. (supra).

They further submitted, citing Yadis Nig. Ltd. v. Great Nig. Ins. Co. Ltd. (2007) 4 – 5 SC and Adetoyin Oladeji Nig. Ltd. v. Nigeria Breweries Plc. (supra), that the refund of N8.5 million did not cancel and could not have cancelled the initial agreement between them by virtue of the correspondences between them, without any express pronouncement on the cancellation of the initial agreement; that the evidence of RW1 (Respondents’ witness) on the payment of N5.2 million goes to no issue as it was not pleaded, citing Adekeye & Ors. v. Adesina & Ors. (2010) 12 SC (pt. 11) 1; that the Respondents did not tender any document to support their claim that the initial agreement to sell both the moveable and fixed assets had been cancelled by the said refund of N8.5 Million, and by Section 133 (2) and 136 (1) of the Evidence Act, the onus on them to prove the assertion has not been discharged; that the lower Court’s finding that the 2nd Respondent received N11,800,000.00 in full and final settlement for the moveable assets is perverse and ought to be disturbed by this Court; that the letter dated 19/9/94 by which the refund was forwarded does not contain any express or implied term to terminate the initial agreement to sell the fixed and moveable assets to them, so the refund was made but there is no implication that this repudiated the contract; that RW1 only gave oral evidence to alter the content of the document(s) by saying that the initial contracts had been repudiated, which is in contravention of the provision of Section 128 (1) of the Evidence Act, and ought to be discarded, rejected and not relied upon since parties to a contract are not permitted to impute into it any term that does not form part of it at the time of contracting, citing Adetoyin Oladeji Nig. Ltd. v. Nig. Breweries (supra); and that the intention of the parties are clear and cannot be subjected to some bizarre interpretations. We were urged to hold that the contract was for the fixed and moveable assets.

The Respondents say that their argument is “misplaced”, to say the least”, and submitted that the burden of proof is on a Plaintiff to show that he is entitled to the reliefs sought, and this burden does not shift because a Plaintiff is not to rely on the weakness of the Defendants’ case but on the strength of his case, so, “a Plaintiff who fails to prove the relief(s) sought returns home without victory”, citing Orji v. D.T.M. (Nig.) Ltd (2009) 18 NWLR (Pt. 1173) 467; and that the Appellants having requested for the refund of the initial deposit for the sale of the said movable and immovable assets, and same having been returned, the original contract came to an end and the parties were returned to their original status.

It was further argued that it is not in dispute that the initial agreement, was to be “completed within two weeks from the date of this letter”, and it is trite that where time is of essence of a contract and a party fails to perform his obligation within a stipulated time, the other party has the option or liberty to repudiate or to terminate the contract, since a fundamental condition has been breached, so, the parties’ obligations that are still pending and which has not been performed would come to an end, citing Saka v. Ijuh (2010) 4 NWLR (pt. 1184) 405 at 427; that when an event occurs through no fault of either part to the agreement, which fundamentally altered it and which was not in contemplation of the parties, such that they could not make provision for it, it is said that frustration has arisen, and both parties to the contract would be discharged, citing N.B.C.I. v. Standard (Nig.) Eng. Co. (2002) 2 NWLR (Pt. 768) 104, Saka v. Ijuh (supra); and that the “Appellants took the option to terminate the initial agreement between [them] obviously because it could not wait for the impediments stalling the transaction to be cleared having been informed of the impediments by the 2nd Respondent…” (and they) demanded for the refund of her initial deposit, which was refunded”.

They conceded that they received two cheques totaling N11,800,000.00 but insisted that they never received the third cheque for the sum of N5.2 Million. They referred us to various Exhibits, and argued that the Appellants failed to show or establish through credible evidence that it forwarded or how it forwarded the cheque to the 2nd Respondent or that the Respondent got value for the cheque; and that it is curious that the said cheque for N5.3 million and the fact that it was meant for the purchase of the “immovable or fixed assets” of Kano Plastics Ltd., was not captured in any of the correspondences between them. Furthermore, that where terms of a contract are clear and unambiguous and there is no fraud, duress or misrepresentation by one of the parties to the contract, the parties are bound by the terms of the contract and the Court will not allow either one to read into such contract terms on which there was no agreement between the parties, citing JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 18 NWLR (Pt. 1225) 495; that the Appellants did not allege fraud, duress or misrepresentation, and should not be allowed to read into the contract terms in which there was no agreement, citing Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (2010) 16 NWLR (Pt. 1220) 619, Bijou (Nig.) Ltd. v. Osidarohwo (1992) 6 NWLR (Pt. 249) 643, Cargill Ventures Ltd. v. Coastal Services Nig. Ltd. (2012) 9 NWLR (Pt. 1304) 60; that extrinsic evidence is inadmissible to add to or alter the contents of a document as a Court cannot write a new contract for parties, citing Royal Exchange Assurance (Nig.) Ltd. v. Aswani ile Industries Ltd. (1991) 2 NWLR (Pt. 176) 639; and that the lower Court was right to hold that the contract was only for moveable assets. They referred us to Onwunalu v. Uche (2010) 2 NWLR (Pt. 1179) 582 Oludamilola v. State (2010) 8 NWLR (Pt. 1197) 565, Alapo v. Agbokere (2010) 9 NWLR (pt. 1198) 30, and urged us not to disturb the lower Court’s findings, which are borne out of the evidence.

see Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (Pt.1092) 339, P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (pt. 1055) 478. The two or more minds must meet at the same point, event or incident. Where they say different things at different times they are not ad idem and no valid contract is formed. The meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract – see Dodo v. Solanke (2007) ALL FWLR (Pt. 346) 57.

There are two agreements in this matter – there is the one for the sale of “fixed and moveable assets of Kano Plastics Company Ltd.”, which is evidenced by the letters dated 5/5/1994 (Exhibit A) and 6/5/1994 (Exhibit F) reproduced above, and the other one is for the sale of the “moveable assets” of the said Company, which is evidenced by the Sale Agreement (supra) made on 27/1/1995 (Exhibit L). There is a wedge between the two agreements – “initial deposit of N8.5 Million” for the sale of the fixed and moveable assets that was refunded to the Appellants.

The Appellants’ contention is that the “status quo of the parties as to the initial agreement to transfer the entire moveable and fixed properties of the company to (them) remained even after the refund of N8.5 Million was made”. The Respondents say that “as a result of the refund of the initial deposit, parties were discharged and all pending obligations yet to be performed came to an end”.

Who is right and who is wrong? Let us look at the cold hard facts before us. In Exhibit A, the letter of offer dated 5/5/1994, the MD of both Appellants offered to buy the fixed and moveable assets of the said Company for N33 Million on the understanding that the “Company is free of all encumbrances and liabilities”. Apparently, the said Company was NOT free of all encumbrances and liabilities, and this was communicated to their MD in Exhibit G, the letter date d 10/6/1994. I set out part of Exhibit G earlier, and will reproduce all to make the picture clear –

“This is to formally inform you that continued action on your purchase of the fixed and movable assets of Kano Plastics Limited – in line with the agreement reached by our Solicitors, Adedoyin Adedeji & Co. with the company and its Solicitors, Kalejaiye & Co. on the amicable settlement of the whole of our claim against the Company in respect of its indebtedness to us, inclusive of the Judgment sum obtained in 1993 – has been stalled by reason of the following recent developments:

(1) An application filed on behalf of the staff of Kano Limited as minority shareholders seeking that they be joined in the Court action al Defendants.

(2) A further Application filed on behalf of the staff of Kano Plastic that everything achieved done and/or agreed till date in respect of our claim against the Company be set aside by the Court on the basis that these were and ore not in the interest of all of the shareholders of the Company.

(3) The unauthorized take-over by persons claiming to be shareholders & directors of Kano Plastics Limited of the movable assets already attached by the officials of the Court in execution of the judgment debt (N11.8 Million) owed by the Company.

As regards the application to be joined as defendants, this has been argued before the Court and our solicitors are of the considered view that there is no legal basis for the grant of this application. However, ruling on this application has been reserved by the Court for 16/5/94. As regards the application that everything achieved done and/or agreed till date in respect of our claim against the Company be set aside, we have been advised by our solicitors that this is naturally dependent on whether or not the Court grants the application for joinder as defendants.Our solicitors do not consider that there is any legal basis for this joinder.

As regards the unauthorized take-over of the already attached movable assets of the Company, we have (in conjunction with our Solicitors) been engaged in discussion with the parties responsible for this unauthorized take-over and have sought to clearly show that their action is illegal, in breach & in contempt of Court process and likely to have serious adverse repercussions on them personally. However, in spite of this, they hove failed and/or refused to put an end to their continued unauthorized take-over or these assets. Our Solicitors have therefore now filed an application before the court for the following orders:

(a) An order of committal against them for contempt.

(b) An order directing them to return all attached goods which have since been removed, sold or otherwise death with by them and/or their agents to the Sheriff of the High Court of Kano State.

(c) An order restraining them and/or their agents from tampering with, using and/or dealing in any manner whatsoever with the already attached movable goods pending removal and/or sale of these attached goods.

(d) An order directing the Sheriff of the High Court to take immediate steps to safeguard all the attached goods left in the custody of Kano Plastics pending removal and/or sale of these goods.

This application should be heard by the court next week. In consequence of the above stated facts, we regret that we must ask you to bear with us until our solicitors may have successfully rebuffed the mischievous attempt being made to scuttle the agreement which forms the basis of the offer made to your company and our receipt, of the deposit paid by your company. In concluding this letter, it is important to restate that our meetings this week with Kano Plastics Limited’s own solicitors, Kalejaiye & Co, have revealed that the original understanding is still firmly in place – even though it is necessary that the above mentioned development should first be resolved before progress on completion of our agreement can be achieved. As soon as this has been done, we shall immediately revert to you for the purpose of completing the agreement reached with you”.

To all intents and purposes, the Appellants were given a clear-cut picture of the challenges facing the 2nd Respondent with regard to the agreement for the sale of the fixed and moveable assets of the said Company. They were also asked to bear with the Respondents until their Solicitors successfully rebuff “the mischievous attempt being made to scuttle the agreement, which forms he basis of the offer made to your company, and our receipt of the deposit paid by your company”. Evidently, there was an existing agreement between the 2nd Respondent and the Company to settle its claim against it, which formed the basis of the offer made to sell its fixed and moveable assets, and the initial deposit paid by the 1st Appellant.

The Appellants have argued that “the parties never terminated the contract originally entered to – because Exhibit G… reiterated the continued existence of the original agreement”, and referred us to the paragraph of Exhibit G that says –

“In concluding this letter, it is important to restate that our meetings this week with Kano Plastics Limited’s own solicitors, Kalejaiye & Co. have revealed that the original understanding is still firmly in place – even though it is necessary that the above mentioned development should first be resolved before progress on completion of our agreement can be achieved. As soon as this has been done, we shall immediately revert to you for the purpose of completing the agreement reached with you”.

The 2nd Respondent appears to be saying that the original understanding to sell the fixed and moveable assets of the said Company, “is still firmly in place”, but they must first resolve the issues with their earlier agreement with the company, before progress on the completion of the agreement to sell the Company’s assets can be achieved. This is the import of Exhibit D and K, the letter dated 19/9/1995, by which the refund of the deposit of N8.5 Million was sent to the 1st Appellant. The 2nd Respondent did say – “this refund became necessary as a result of some unforeseen developments, which has impaired the conclusion of the transaction”. The Appellants were, therefore, fully aware of these “unforeseen developments” that hindered the completion of the first agreement before asking for the refund. They explained in paragraph 11 of their Amended Statement of Claim that –

“After waiting for a long time without further development on the matter and the money of the 1st (appellant) being tied down. The 1st (Appellant) requested for the money with the promise to pay when 2nd (Respondent) were able to resolve the matter which as they claim was on obstacle towards concluding the transaction”.

When asked under cross-examination if they requested for a defund, PW1 replied-

“We did. The money was refunded. The money was originally meant as a deposit on joint payment for Kano Plastic Factory. It was meant for moveable and immovable assets of Kano Plastic Factory. The deposit was made in 1994. We made an agreement for the set (sic) of moveable assets of Kano Plastic Factory. This was in 1995. We did not enter any agreement subsequently for the immoveable assets of the Kano Plastic company. We paid a total of N11.8 Million in January 1995 for moveable assets and N5.2 Million as deposits for the immovable (fixed) assets”.

Both parties set out PW1’s reply in their respective briefs, although the Appellants conveniently left out the bit about not entering into any agreement subsequently for the immoveable assets of the said Company. However, the issue before us is – the effect of the refund on the agreement to sell the fixed and moveable assets.

In my view, Exhibit L, the Agreement executed by the parties on 27/1/1995, is the key evidence that will unravel the knots in this case. The preamble reads –

1. On the 18th day of November 1993 Judgment was entered by the High Court of Kano State… in Suit No.K/427/93 (Century Merchant Bank Limited v. Kano Plastics Limited) in favour of Century against Kano Plastics Limited… in the sum of 10% per annum from 19 November 1993 until liquidation of the judgment sum and costs of N1,000.00.

2. On the 23rd & 15th days of March 1994 and the 21st day of July 1994… the Sheriff of the High Court… acting within the terms of a Writ of Fifa signed on the 18th day of March 1994… levied execution and attached the movable assets of Kano Plastics…

3. By on Ex-parte Order made by the High Court on the 13th day of December 1994… Century was granted leave to effect the sale by private treaty of the attached movable assets on the terms of which the Ex-parte Order was made towards the liquidation of the Judgment Debt owed to it by Kano Plastics.

4. As at the 31st day of December 1994, the Judgment Debt (inclusive of interest and costs) owed by Kano Plastics to Century was the sum of N13,136,624.63.

5. Acting in reliance on the Ex-parte Order, Century reached with Traders International to the private sale to and purchase by International of the attached movable assets for the negotiated purchase of N11,800,000.00

6. By letter dated the 19th day of January 1995, Century’s Solicitors, Adedoyin Adedeji & Co. applied to the Sheriff for his approval/endorsement of the agreement reached between century and Traders International in respect of the private sale to and purchase by Traders International of the attached movable assets.

7. By letter dated the 23rd day of January 1995, the Sheriff informed Century’s Solicitors of his approval/endorsement of the agreement reached between Century and Traders International in respect of the private sale to and purchase by Traders International of the attached movable assets.

The first Clause of the Agreement (Exhibit L) is particularly telling, it says that –

“IN CONSIDERATION of the payment of the sum of N11,800,000.00 (receipt whereof Century hereby acknowledges) and in accordance with the terms of the Ex-parte Order to this effect, Century hereby sells and Traders International hereby buys ALL the attached movable assets more particularly specified in the various inventories of the High Court annexed hereto”.

I said earlier that the meeting of minds of the contracting parties is the overriding factor in the law of contract; now let us look at the facts again with fresh eyes.

The 2nd Respondent obtained Judgment against Kano Plastic Company Ltd., on 18/11/1993 at the Kano State High Court. The Sheriff of the High Court levied execution in March 1994 and on 21/7/1994, and attached its moveable assets. The 1st Appellant offered to buy its fixed and moveable assets on 5/5/1994, and the 2nd Respondent accepted to sell the fixed and moveable assets on 6/5/1994. The 1st Appellant paid the initial deposit of N8.5 Million for the sale on 16/51994. By Exhibit G dated 10/6/1994, the 2nd Respondent informed the 1st Appellant about the pending litigations that was posing a problem to their said agreement. The 1st Appellant requested for a refund of the N8.5 Million deposit, and the 2nd Respondent refunded it on 19/9/1994. By an Ex-parte Order dated 13/12/1994, the 2nd Respondent was granted leave by the Kano State High Court to sell the moveable assets of the Company, and relying on the Order, the 2nd Respondent reached an agreement with the 2nd Appellant to buy the said moveable assets. By a letter dated 19/1/1995, the 2nd Respondent applied to the Sheriff of the said High Court for his approval/endorsement of the agreement reached between the 2nd Respondent and the 2nd Appellant regarding the sale of the moveable assets, and by a letter dated 23/1/1995, the sheriff informed the 2nd Respondent of his approval/endorsement of the said agreement in respect of moveable assets only. The 2nd Appellant paid the said sum on N11.8 Million, acknowledged in Exhibit L.

The first thing that jumps out is that when the 2nd respondent accepted the offer to buy the fixed and moveable assets on the condition that the 1st Appellant pays the deposit to enable it, “initiate the process of documentations and transfer of title documents”, it had no power to sell the fixed and moveable assets of the said Company because of pending litigations, which is the argument proffered by the Respondents at the lower Court – see their Written Address at page 250.

The 1st Appellant was aware of these problems, and demanded for a refund of its deposit of N8.5 Million. Obviously, the refund of the deposit of N8.5 Million put an end to the initial agreement for the sale of the fixed and moveable assets because there was no consideration to hold the contract together any longer – see Chitty on The Law of Contracts (Volume 1) page 1080 paragraph 22 – 022 to 22 – 023 where the learned Author stated as follows on rescission of contracts –

“Where neither party has performed the whole of his obligations under it, it may be rescinded by mutual agreement, express or implied… A contract which is rescinded by agreement is completely discharged and cannot be revived”.

I do not need to go into whether the agreement to call off the initial contract is express or implied; the truth of the matter is that the 1st Appellant being aware of the difficulties the 2nd Respondent had with fulfilling its own end of the bargain, requested for a refund of its initial deposit – N8.5 Million, and the 2nd Respondent, who had no power anyway to dispose of the said assets, refunded the deposit. The only conclusion, therefore, is that the said agreement had been discharged before the parties entered the agreement for the sale of the moveable assets.

Exhibit L did not incorporate the contract for fixed and moveable assets, and was, therefore, a fresh contract. Parties started on a clean slate in Exhibit L, and Clause 1 of Exhibit L acknowledges that “in consideration of the payment of the sum of N11,800,000.00… (2nd Respondent) hereby sells and Traders

International (2nd Appellant) hereby buys ALL the attached moveable assets more particularly specified in the various inventories of the High Court annexed hereto”. The Appellants are not contesting the fact that 11.8 Million specifically was paid for the moveable assets of the said Company; but they added another twist to the tale with their claim that they sent in a cheque of N5.2 Million for the fixed assets on 18/1/1995, along with another cheque of N3.3 Million for moveable assets.

They argued that the money was paid to the Respondents as part payment for the fixed assets of the Company as agreed; that Exhibit F says the entire sum is N33,000,000.00 for both fixed and moveable properties; that bank drafts totaling N17 million were paid leaving a balance of N16 Million unpaid; and that their letter to the 2nd Respondent dated 30/1/1996 (Exhibit B) confirms this, and goes to prove the continued existence of the agreement to purchase both the fixed and moveable assets of the Company. The said Exhibit B headed RE: Purchase of Moveable and Immoveable Assets of Kano Plastics Ltd. reads –

“We reconfirm our agreement with your bank to pay the balance of N16 Million on completion of the arrangements for the acquisition by us or q nominee of ours of the immovable assets of Kano Plastic Ltd. We will appreciate that all effort is made to have these arrangements completed within three months. Thank you.”

The Respondents conceded that they received two cheques totaling N11.5 Million for the moveable assets as “the problem stalling the sale of the immovable assets that necessitated the demand by the 1st Appellant for the refund of its deposit (had) not been resolved”. They denied the fact that they received a third cheque for the sum of N5.2 Million in respect of the fixed assets, and further argued that –

“Exhibit N sent to the Appellants in acknowledgement of the two Cheques… did not mention the purported third Cheque for N5.2 million. The Appellants on the other hand never mentioned that it had forwarded the said third Cheque for N5.2 million to the 2nd Respondent. At the trial, the Appellants failed to show or establish through credible evidence that it forwarded or how it forwarded the said cheque to the 2nd Respondent or that the Respondent got value for the said cheque… All correspondences between the parties had always been in writing. It is curious that this cheque for N5.3 million and the fact that it was meant for the purchase of the “immovable or fixed assets” of Kano Plastic Ltd. was not captured in any of the correspondences between the parties. It is even more worrisome when it is considered that the said cheque for N5.2 million was dated some date (18/1/95) as the two other cheques of N8.5 million for the movable assets of Kano Plastics Ltd. The two cheques in the combined sum of N11,800,00.00 received by the 2nd Respondent was acknowledged vide Exhibit N (a letter dated 18/1/95) the same date the cheques were sent to the 2nd Respondent”.

I have to agree with the Respondents on this issue of the 5.2 Million allegedly paid for the fixed assets on 18/1/95; there is no evidence at all to back up the claim.

For instance, there is no mention of this third cheque in any of the Exhibits. Exhibit B, which the Appellants referred us to, does not mention this third cheque but merely indicated the 1st Appellant’s readiness to pay a balance of N16 Million “on completion of the arrangements for the acquisition by us or a nominee of ours of the immoveable assets of Kano Plastic Ltd.” Exhibit B did not say N17 Million had been paid leaving a balance of N15 Million unpaid or that the N5.2 Million was part of the N17 Million that had been paid to the 2nd Respondent. Besides, there is nothing to indicate that the 2nd Respondent received the said Exhibit B, and it acknowledged receipt of every payment made to it during the transaction. There is the letter dated 17/5/1994 (Exhibit H), which acknowledged “receipt of two bank drafts of N5,000,000.00… and N3,500,000.000.00… totaling N8,500,000.00 as part payment for the acquisition of Kano Plastics Ltd.”, and there is the acknowledgment letter dated 16/1/1995 [Exhibit N], which says –

“We acknowledge receipt of your two bank drafts in the combined sum of N11,800,000.00 (Eleven Million Eight Hundred Thousand Naira:-

i. Tropical Commercial Bank Ltd Draft… dated 13 January 1995 for N8,500,000.00

ii. First Bonk Nigeria Plc … Draft … dated 18 January 1995 for N3,300,000.00 .

These drafts are received as being payment of the agreed purchase price of the attached movable assets of Kano Plastic Limited being sold to you in accordance with the Court’s Order to sell by private sale. We will instruct our Solicitors to immediately apply to the Court to have the sale approved by the Court and that title over the attached movable assets is transferred to you…”

The Appellants claimed that two other bank drafts for N8.5 Million dated 13/1/95 and N3.3 Million dated 18/1/95 were all forwarded along with the one dated 18/1/95 for N5.2 million on the same date”. Exhibit N acknowledged only the first two and said nothing of the third, yet, the 1st Appellant did not make a fuss then.

It is pretty odd, and out of the usual run of things for anyone to send three bank drafts on the same date, and receive acknowledgments for only two without raising any eyebrows or asking questions about the third bank draft that was sent.

Be that as it may, I cannot round up on Issue 1 without touching on Issue 2, which questions – whether the finding of the lower Court was not perverse, which has occasioned miscarriage of justice to the Appellants, when it restricted itself to the Agreement in Exhibit “L” alone to determine the issues between the parties.

The Appellants’ contention is that the said finding is perverse because the lower Court restricted itself to Exhibit L (same as Exhibit I) when it he held that “there are no outstanding terms of that contract Exhibit L to specifically enforce”, which led to the determination of the rights of the parties on that Exhibit alone.

They submitted that there is nothing in Exhibit L that excludes the application of the original agreement as offered and accepted in Exhibits A & F; that Exhibit L contains no clause or terms to obliterate the existence of the overall agreement entered by the parties to sell and purchase the said fixed and moveable assets; that “the agreement is only an addition, and forms part of the initial agreement”, since the amount to transfer the moveable assets in the initial agreement is the same N11.8 Million as in the agreement in Exhibit L; that the lower Court’s reliance on Exhibit L to specifically enforce the agreement amounts to speculation but it is the duty of the Court to consider the evidence before it and never to indulge in speculation as to what might have happened, citing Edoho v. State (2004) 5 NWLR (Pt. 865) 17; that their case is not based solely on the agreement in Exhibit L as the lower Court conceived it; that there are other evidence in the admitted Exhibits that proved that the parties contracted for both the moveable and immovable properties of the said company; and that a Court is under a duty to consider the case of parties presented by evidence in its entirety and not to consider only one Exhibit or aspect in isolation of the entire case. We were, therefore, urged to resolve this issue in their favour and against the Respondents.

The Respondents, however, countered that the lower Court’s findings were not perverse because it considered and evaluated the evidence presented by the parties before making its findings of fact; that all the correspondences after the refund of N8.5 Million through Exhibit K as evidenced by Exhibits L, E, M and N, showed that parties had moved on to “better and fruitful relationship between our two organizations” as predicted by the 2nd Respondent in Exhibit K; that this better and fruitful relationship culminated in the execution of Exhibit L for the purchase of the moveable assets of the said company; that the recital of the said Exhibit L is so explicit, and the agreement was executed well after the initial agreement to sell the fixed and movable assets of the Company was terminated; that where a parole agreement has been reduced into writing, the best evidence of it is the production of the document itself, citing Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (2010) 16 NWLR (Pt. 1220) 619; that where a contract is in writing, any agreement which seeks to vary the original agreement must itself be in writing; that extrinsic evidence is basically inadmissible to add to or alter the contents of a document, citing Royal Exchange Assurance (Nig.) Ltd. v. Aswani ile Ind. Ltd. (1991) 2 NWLR (Pt. 176) 639; that the Appellants’ argument and PW1’s evidence calculated to contradict or vary the content of Exhibit L, amounts to nothing since there nowhere in Exhibit L that it is stated that it is an addition and or forms part of any other agreement; that for its contents to be shaken, the Appellants must satisfy the provision of Section 128(1)(a) – (e) of the Evidence Act, which they failed to do, so their contention that Exhibit L is a continuation of the agreement contained in Exhibits A – F must fail; that the lower Court considered all the evidence before arriving at its conclusion, and that there is, therefore, no denial or miscarriage of justice as the positions of the parties were duly considered by it.

However, the Appellants also argued under Issue 3 that the lower Court made a summary of the evidence of the parties and then proceeded immediately to make his findings and decision in determining the case without any evaluation of the evidence led by both parties to ascertain the weight to be attached to each of the parties’ evidence, which has occasioned a miscarriage of justice to them as its decision would have been different if the court had evaluated their evidence. They cited Tangale Traditional Council v. Alhaji Alhassan Mohammed Fawu & (2011) 17 NWLR (Pt.742) 293 & Mogaji v. Odofin (1978) 4 SC 91 on the position of the law on evaluation of evidence, but a lot of their arguments relate to issues that have been settled in this Judgment. Basically, it is their contention that, the lower Court reached its conclusion without proper evaluation of their evidence, and they cited Adetoyin Oladeji Nig. Ltd. v. Nigerian Breweries Plc. (supra); and Daniel Bassil & Anor v. Chief Lasisi Fajebe & Anor (2001) 11 NWLR (Pt. 725) 582.

The Respondents countered that the Appellants’ argument “is not correct” as the lower Court performed the duty of evaluating the evidence led by parties. They cited Kayode Ventures Ltd. v. MM, F.C.T (2010) 7 NWLR (Pt. 1192) 171 for the law on appraisal of evidence by a trial Court and interference by this Court, and submitted that the narrow issue that was determined by the lower Court was – whether there remained a further contract to be performed by the parties? They argued that even if the lower Court failed to evaluate the evidence led at the trial, its failure, if any, has not occasioned any miscarriage of justice to the Appellants because the evidence on record, both oral and documentary, support the finding of fact made by the lower Court to the effect that the “parties eventually contracted for the sale of the moveable assets of Kano Plastics Limited”, and that “there are no outstanding terms of that contract… to specifically enforce”.

I cannot agree more, and will not hesitate to say that all the Issues will be resolved in favour of the Respondents. To start with, there are clear distinctions between the initial agreement for the sale of the fixed and moveable assets as evidenced by Exhibits A and F, and the agreement for the sale of moveable assets only as evidenced by Exhibit L. Apart from the fact that the initial agreement was for both fixed and moveable assets and the second is for moveable assets only; the parties to both agreements are different. The initial agreement is between the 2nd Respondent and the 1st Appellant, and the second agreement between the 2nd Respondent and the 2nd Appellant. The Managing Director of both Appellants may be the same, and the 2nd Appellant may be the nominee of the 1st Appellant, but the two Appellants are two different Companies with very different identities.

It is stated in Exhibit L that the agreement BETWEEN CENTURY MERCHANT BANK LIMITED (2nd Respondent) and TRADERS INTERNATIONAL NIGERIA LIMITED (2nd Appellant) is for “the private sale to and purchase by Traders International (2nd Appellant) of the attached movable assets” of the said Company. It is also clear from Exhibit L that the 2nd Respondent needed the approval/endorsement of the Sheriff of the said High Court to sell the moveable assets to the 2nd Appellant. In addition, the correspondences between them that were written after Exhibit L, are addressed to the 2nd Appellant, and refer to the sale of the moveable assets.

Exhibit M date 9/2/95, is addressed to the MD of the 2nd Appellant, and it reads –

“We refer to the Sale Agreement dated 27th January, 1995… This is to confirm that the under-listed attached moveable assets of the Judgment Debtor… form part of the movable assets sold to you under the Sale Agreement dated 27th January, 1995…”

Exhibit N (supra), is also addressed to the MD of the 2nd Appellant, and it says –

“We acknowledge receipt of your two bank drafts in the combined sum of N11,800,000.00… These drafts are received as being payment of the agreed purchase price of the attached moveable assets of Kano Plastic Limited being sold to you in accordance with the Court’s Order to sell by private sale”.

“If, as a matter of contract, the parties agree that the terms of the original agreement shall be varied, the variation must be in writing, or evidence of those new terms will be inadmissible.”

See also Bijou (Nig.) Ltd. v. Osidarohwo (1992) 6 NWLR (Pt.249) 643 and Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (supra) where the Supreme Court held that –

“It is now settled that a contract, which must in law be in writing, can only varied by an agreement in writing… In other words, where a contract is in writing, any agreement, which seeks to vary the original agreement, must itself be in writing”.

It is also settled that where parties have reduced their agreement into writing, subject to some exceptions, oral evidence will not be allowed to contradict or alter the contents of the documents – see Cargill Ventures Ltd. v. Coastal Service (Nig.) Ltd. (2012) 9 NWLR (Pt. 1304) 60 & R.E.A.N. v. Aswani ile Ind. (supra), wherein it was held that – “where a document is clear and unambiguous, parole evidence cannot be led to contradict it. In other words, extrinsic evidence is inadmissible to add to, or alter the contents of the document”. It is clear in this case that the unambiguous terms of Exhibit L governed the contract entered into by the 2nd Respondent and 2nd Appellant for the sale of the movable assets only, and PW1 also admitted under cross-examination that they “did not enter any agreement subsequently for the immoveable assets of the Kano Plastic Factory”. Besides, Exhibits M and N read along with Exhibit L showed that the parties were no longer talking of buying the immoveable assets of the Kano Plastics Company.

The Appellants’ case is that the lower Court’s findings of fact are perverse, and a decision is said to be perverse where the Judge took into account matters, which he ought not to have taken into account or where the Judge shuts his eyes to the obvious – see Atolagbe v. Shorun (1985) 3 NWLR (Pt. 2) 360, Egba v. Appah (2005) 10 NWLR (934) 464; Oju L.G. v. INEC (2007) 14 NWLR (Pt. 1054) 242, Ladunni v. Wema Bank Ltd. (2011) 4 NWLR (P. 1236) 44, and Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 896) 136 SC, wherein the Supreme Court held that-

“A perverse decision of a Court can arise in any of the following several ways; that is where the Court:

(a) Ignored the facts or evidence; or

(b) Misconceived the thrust of the case presented; or

(d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or

(e) Committed various errors that faulted the case beyond redemption”.

In this case, the lower Court’s Judgment may be a bit terse in the sense that it is “concise and economically phrased” – see Encarta Dictionaries, but I analyzed the evidence in detail, and it is clear from the Exhibits tendered, particularly Exhibit L, that there is nothing perverse about the findings of the learned trial Judge that –

– The Parties only eventually contracted for the sale of the moveable assets.

– The 2nd Respondent received N11,800,000 in full and final settlement for those moveable assets; and that –

– There are no outstanding terms of that Contract, Exhibit L, to specifically enforce.

The end product is that this appeal lacks merit; it fails and is hereby dismissed.

There will be no order as to costs.

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the Judgment just delivered by my brother AMINA ADAMU AUGIE J.C.A.

I agree with her opinion and conclusion. My brother had dealt extensively with the issues.

It is trite that where parties have reduced their agreement into writing, of course subject to some exceptions, oral evidence will not be allowed to contradict or alter the contents of the document.

I abide by the consequential order made as to order as to costs, that there shall be no order as to costs.

FATIMA OMORO AKINBAMI, J.C.A.: I read before now, the detailed judgment prepared by my learned brother AUGIE, JCA in which I fully concur with these few words by way of emphasis.

This appeal is premised on the sale of fixed and moveable assets of Kano Plastic Company Ltd. The Appellant’s case is that the lower court’s findings of fact are perverse, and a decision is said to be perverse where the judge took into account matters, which he ought not to have taken into account or where the Judge shuts his eyes to the obvious.

The Supreme Court held in the case of Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 835) 136 that:

“A perverse decision of a court can arise in any of the following several ways that is whether the court:

(a) Ignored the facts of evidence: or

(b) Misconceived the thrust of the case presented: or

(d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case or

(e) Committed various errors that faulted the case beyond redemption.

The judgment of the lower court was well elucidated by my learned brother, I have nothing to add to it. I agree with the reasoning and conclusion reached in the lead judgment of my learned brother.

The appeal lacks merit, it fails. I also dismiss the appeal.

I abide by the orders of my learned brother.

Appearances

O. A. Egwuatu, Esq., with Miss U. NwadialoFor Appellant

AND

A. Egwuatu, Esq., and K. Ojukwu, Esq.For Respondent