GAMJI FERTILIZER COMPANY LIMITED & ANOR v. FRANCE APPRO S. A. S & ORS (2016)

GAMJI FERTILIZER COMPANY LIMITED & ANOR v. FRANCE APPRO S. A. S & ORS

(2016)LCN/8217(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of February, 2016

CA/K/91/2008

RATIO

COURT: FUNCTION OF THE TRIAL COURT; WHETHER IT IS THE FUNCTION OF THE TRIAL COURT TO EVALUATE EVIDENCE

It is settled law that evaluation of evidence and ascription of probative value is the primary function of the trial Court which heard and watched the witnesses testify. An appellate Court will not ordinarily interfere with the findings of a trial Court unless in special or exceptional circumstances, such as where the finding of the trial Court is not supported by the evidence or is otherwise perverse or where the trial Court has not made full use of the opportunity of watching the demeanor of the witnesses. See Civil Design Construction (Nig) Ltd v. SCO(Nig.) Ltd. (2007) 6 NWLR (pt.1030) 300 at 339-340 Para H-B per Onnoghen JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

APPEAL: WHETHER AN APPELLATE COURT SHOULD SUBSTITUTE ITS OWN OPINION FOR THAT OF THE LOWER COURT

An appellate Court, it is trite, should not substitute its own opinion of the evidence for that of the lower Court. See Awodi v. Ajagbe (2015) 3 NWLR part 1447 page 578 at 612 Para F-G per Rhodes Vivour JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

PRACTICE AND PROCEDURE: WHETHER LAW PLACED ON NOTHING CAN STAND

If is also trite law that a thing placed on nothing cannot stand see MACFOY V. U.A.C. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

CONTRACT: WHETHER PARTIES ARE BOUND BY THE TERMS OF AN AGREEMENT FREELY ENTERED INTO BY THEM

I only wish to add a word on the settled principle of law that parties are bound by the terms of an agreement freely entered into by them and the duty of the Court is simply to give effect to the agreement. See AMINU ISHOLA INV. LTD V. AFRIBANK NIG. PLC. (2013) 9 NWLR (pt. 1359) P. 380. A party to a contractual arrangement, who in his full senses entered, partook and benefitted from that arrangement cannot and will not be allowed to turn around and run away from obligation therefrom in the pre of illegality. In the instant case, the Appellant’s contention that the goods supplied to him were contraband and or seized by the Nigerian Custom was rightly rejected by the trial Court, the Appellant having failed to proof the existence of those facts, the contention cannot stand in law. See CHIDOKA v. FIRST CITY FINANCE COMPANY LTD (2013) 5 NWLR (Pt. 1346) P.144. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JUSTICES

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

1. GAMJI FERTILIZER CO. LTD
2. STANDARD ALLIANCE FINANCIAL SERVICES LTD Appellant(s)

AND

1. FRANCE APPRO S. A. S
2. MONSIEUR LIONEL MARTINS
(suing through their Attorney Mr. Iliya Runka)
3. F. APPRO INTERNATIONAL CO. LTD
4. ALH. MUHAMMED SANI ABDULLAHI Respondent(s)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This an appeal from the judgment of the Federal High Court, Kano Division, delivered on 15th October 2007 by Hon. Justice Adeniyi Ademola in which he entered judgment against the Appellants. The Appellants herein were the 3rd and 4th Defendants before the trial Court, while the 1st and 2nd Respondents, both based in France, were the plaintiff. The 3rd and 4th Respondents were the 1st and 2nd Defendants. To avoid confusion, the 1st and 2nd Respondents, the Plaintiffs, shall be referred to interchangeably as “the claimants”, while the 1st Appellant, who was the 3rd Defendant before the lower Court shall also be referred to interchangeably as ?Gamji?.

At trial, five witnesses testified for the Claimants while the 1st and 2nd Defendants (3rd and 4th Respondents herein) called four witnesses in defence of their claim. The Appellants (3rd and 4th Defendants) called one witness. A total of 376 exhibits were tendered at the trial.

The case of the Claimants, foreign nationals based in France, is that they agreed with the 4th Respondent, Alhaji Mohammed Sanni Abdullahi (2nd

Defendant at lower Court), in the year 2000, to incorporate a Company in Nigeria as subsidiary of the 1st Claimant, a fertilizer company, to market and sell the 1st Claimant’s fertilizer in Nigeria. The 1st Claimant through the 2nd Claimant, its Managing Director, entered into an agreement with the 4th Respondent (Mohammed Abdullahi) by which the 4th Respondent was to be made the Managing Director of the Nigerian Company on its incorporation. The Nigerian Company was duly incorporated, as F. Appro International Company Ltd, the 3rd Respondent. The agreed shareholding was that the 2nd Claimant (2nd Respondent herein) and his son, Alexandre, would hold 60% of the shares while the 4th Respondent and his son would hold 40% of the shares.

In accordance with the said agreement, the 1st Respondent, France Appro SAS, shipped to the 3rd Respondent, F. Appro International Co. Ltd, in the year 2000, for sale and distribution, 15,730 metric tons of NPK fertilizer (valued at $3,381,950 USD), 33,250 laminated bags (valued at $76,475 USD) and some items of furniture (valued at $21,319.45 USD), with a total value of $3,479,744.

?In order to further buttress their

business interest in Nigeria, the 2nd Respondent (Lionel Martins) and the 4th Respondent (Mohammed Abdullahi) subsequently incorporated another company, Gamji Fertilizer Company Ltd (1st Appellant) with the same share allotment as the former arrangement. The 1st and 2nd Respondents (Claimants) allege that by the agreement between the parties, following the sale of these goods, the cost of the goods would be remitted to them while the profit from the sale would be shared in the same ratio of shareholding 60%-40% in favour of the 1st Respondent, his son and the 4th Respondent and his son. Contrarily, however, the 3rd Respondent, 4th Respondent and the 1st Appellant (Gamji) sold the said items and only remitted to the Claimants the sum of $2,657,900.45 USD, leaving. a balance unpaid of $821,844.00 of the capital investment. The 1st and 2nd Respondents accuse the said Defendants of failing to account for the profit of N146,767,192 made from the transaction.

?They also accuse these Defendants of utilizing the unremitted monies to fraudulently increase the share capital of the 1st Appellant, Gamji Fertilizer Company Ltd, and of allotting shares in it of

19,000, to the 2nd Appellant, Standard Alliance Financial Services Ltd, without the consent and knowledge of the 2nd Respondent, the Principal shareholder.

The claimants further accuse the Appellants and the 3rd and 4th Respondents of importing from another source, shiploads of fertilizer, mainly with the said unremitted funds of the Claimants.
They, in consequence claimed against the Defendants the following reliefs:
a) A declaration that the increase of share capital and sale and allotment of shares of the third Defendant by the second defendant to the fourth defendant without the knowledge, consent or approval of the second Plaintiff who is the Principal shareholder is fraudulent, illegal, null and void and of no effect whatsoever.
b) An order of perpetual injunction restraining the second and fourth defendants either by themselves, servants, agents, privies, assigns or whatever named called from doing or entering into any transaction in the name of the third defendant,
c) An order arresting and impounding the current fertilizer imported into the country in the name of Gamji Fertilizer Company limited without the consent and

authorization of the second Plaintiff, and bought mainly with the Plaintiffs unremitted capital investment of $821,844.00 USD, and undeclared enormous profit of about N146,767,192.00 made from the sale of goods shipped by the Plaintiffs to the first, second and third defendants.
d) An order that the Plaintiffs or their authorized agent/s take control of the sale of the said fertilizer.
e) An order on the defendants to pay to the second plaintiff the sum of N88,060,315.20 being his own share of the profit made from the aforesaid sale of goods based on 60%-40% shareholding in favour of the second Plaintiff and his son and the second defendant and his son respectively in F. Appro International Company Limited and Gamji Fertilizer Company Limited.
f) Payment of the sum of $821,844.00 USD or Naira equivalent of N112,592,628.00 being the unremitted balance of the capital investment of the Plaintiffs on the fertilizer, laminated bags, and furniture shipped to the first, second, and third defendants which money the defendants used to import fertilizer from another source, in the name of the third defendant.
g) 60% of the profit made after the sale

of the current 15000 metric tones of fertiliser imported by the defendants with the Plaintiffs’ monies.
h) And (sic) order on the 1st, 2nd and 3rd Defendants to render accurate account of the sale of the furniture shipped to them by the Plaintiffs and profit made therefrom. The Plaintiffs shall during trial rely on copies of the 1st Defendant’s offer letters to their customers and Principal Excel College Kano dated 5th October 2003 and 30th December 2003 respectively.
i) 21% interest at Bank rate from August 2002 till the date of judgment sum until final liquidation of the judgment debt.
j) Any other order or orders which the Honourable Court may deem fit and proper to make in the circumstances.

The 3rd and 4th Respondents, as 1st and 2nd Defendants, in a Joint Statement of Defence, alleged that they paid for the full price of goods supplied. They also alleged that they incurred expenses in the clearing and marketing of the goods and that the plastic chairs shipped were contraband goods and still parked in a warehouse. They denied any share profit agreement. They also alleged that the increase of share capital in the 1st Appellant and the

allotment of shares in the 1st Appellant to the 2nd Appellant were all done with the knowledge and approval of the 1st and 2nd Respondents. They counterclaimed for the following:
?a) A declaration that he (sic) is entitled to commissions from the transaction.
b) An order directing the 2nd plaintiff to give an honest account of the transactions and pay the agreed commission to the claimant.
c) General damages in the sum of N100,000,000 (one hundred million naira) for breach of contract.

The Appellants filed a joint Statement of Defence. Their case is that sometime in 2004, the 2nd Respondent, at his own expense, acquired shares in the equity of the 1st Appellant to the knowledge of the 1st and 2nd Respondents. They further alleged that the ship load of fertilizer imported from China was funded through resources exclusively provided by them and was in no way associated with the 4th Respondent (Mohammed Abdullahi). The only contribution of the 1st Appellant, they claimed, was in its trade good will.
?
The trial Judge, in his Judgment found the oral evidence of the defence witnesses unreliable and contradictory, commenting negatively

on the demeanour of the witnesses. He dismissed the Counter Claim of the 3rd and 4th Respondents as lacking in proof. He held there to be no compliance by the Appellants and the 4th Respondent with the Companies and Allied Matters Act and the Articles of Association of the 3rd Respondent with respect to increase in the share capital of the 1st Appellant. The documents from Corporate Affairs Commission tendered, were false, invalid, illegal, null and void, he held. He directed that they be expunged from the records of the Corporate Affairs Commission. He declared that the 2nd Appellant’s acquisition of N19,000,000.00 equity in the 1st Appellant (Gamji) was illegal, irregular and of no effect. He accordingly entered judgment in favour of the 1st and 2nd Respondents in the following terms:
1. A declaration that the increase of share capital and sale and allotment of shares of the 3rd Defendant by the 2nd Defendant to the 4th Defendant without the knowledge, consent or approval of the 2nd plaintiff who is the Principal shareholder is fraudulent, illegal null and void and of no effect whatsoever.
2. That an order of perpetual injunction is hereby granted

restraining the 2nd and 4th Defendants either by themselves, servants, agents, privies, assigns or whatever named called from doing or entering into any transaction in the name of the 3rd Defendant.
3. And order of perpetual injunction restraining the 2nd and 4th Defendant either by themselves, servants, agents, Privies, assigns or whatever named called from doing or entering into any transaction in the name of the 3rd Defendant.
4. That an order is hereby granted on the Defendants to pay to the 3rd plaintiff the sum of N87,902,031.2 being his own share of the profit N146,604.000.52k made from the aforesaid sale of goods based on the 60% – 40% shareholding in favour of the 2nd plaintiff and his son and the 2nd Defendant and his son respectively in F-APPRO INTERNATIONAL COMPANY LIMITED AND GAMJI FERTILIZER COMPANY LIMITED.
5. An order for the payment of the sums of $821,844.00 USD or its Naira equivalent at the prevailing market rate of (N112,592,628.00) being the unremitted balance of the capital investment of the plaintiff on the fertilizers, Laminated bags, and furniture shipped to the 1st, 2nd and 3rd Defendants.
6. An order on the 1st,

2nd and 3rd Defendants to render accurate account of the sale of the furniture shipped to them by the Plaintiffs and profit made therefrom.
7. 21% interest at Bank rate from August 2002 on the above mentioned sums till the date of judgment and thereafter at 10% interest at Court rate of the Judgment sums until final liquidation of the judgment debt.
8. That the 1st and 2nd Defendants counter claims in the amended statement of defence are hereby dismissed.
9. Costs of N40,000.00k is hereby awarded against the Defendant jointly and severally in favour of the Plaintiffs.
10. The Deputy Chief Registrar, Federal High Court Kano, is hereby ordered to pay the Judgment sums and costs from the specially designated interest yielding account at Union Bank of Nigeria Plc, opened pursuant to the Court Orders of 27th day of September 2002 to the Plaintiff or their counsel, BOB OMEGA & CO. No. 44 France Road, Kano, Kano State of Nigeria and file the Union Bank of Nigeria Plc, Statement of accounts for the relevant periods in Court forthwith.
11. That the Deputy Chief Registrar Federal High Court Kano, Kano State of Nigeria is further ordered to

close the said designated UNION BANK of Nigeria Plc, account opened for the suit upon payment of the above mentioned sums and transfer any outstanding sums and interest (in any) to any of the Federal High Court of Nigeria Bankers in Kano or Lagos.
12. That the Registrar-General, Corporate Affairs Commission, is hereby ordered to expunge Exhibits GFCL12C to G attached to 3rd and 4th Defendants Motion dated 21st day of April 2006 and Exhibits F.A.S. 26B and C from the 3rd Defendant?s files at the Corporate Affairs Commission, Abuja Federal Capital Territory (FCT) Nigeria.

Dissatisfied with this decision the Appellants have appealed, raising, by their Further Amended Notice of Appeal, deemed as properly filed on 5/3/14 pursuant to leave of the Court, 12 grounds of appeal. The 3rd and 4th Respondents (1st and 2nd Defendants) did not appeal against the judgment of the lower Court.
?
In prosecution of their appeal, the Appellants filed a Joint Brief of Arguments, in response to which the 1st and 2nd Respondents filed a 1st and 2nd Respondents’ Brief of Arguments. The 3rd and 4th Respondents filed no Briefs. Counsel on their behalf, J.E. Chukwuemeka

notified the Court at the hearing of the appeal that they were not opposing the appeal.
?
In the Appellants’ Brief of Arguments, filed on 28th March 2014, deemed by this Court as properly filed on 2/10/14, and settled by Seth Nixon Esq of Abdullahi Haruna & Co, 7 issues for determination were formulated, namely:
1. Whether the Federal High Court has jurisdiction within the provisions of Section 251(1) of the 1999 Constitution to entertain the Plaintiffs’ case, which having regard to the Statement of Claim, is purely contractual in nature and whether the Federal High Court was right in assuming jurisdiction inspite of the express agreement of the parties vesting territorial jurisdiction in respect of any dispute arising from the contract on a commercial Court in Saint Malo, France?
2. Whether the learned trial Judge was right in holding that the 1st Appellant was liable for the unremitted value of the fertilizer and furniture allegedly shipped to it by the 1st and 2nd Respondents and pay to the 2nd Respondent the sum of N87,962,031.20 when there was no evidence that established such liability and when the 1st Appellant was neither a party nor

privy to the said transaction?
3. Whether the learned trial Judge was right in holding the Appellants and the 3rd and 4th Respondents liable to perform a contract which had been frustrated by an intervening event or circumstance?
4. Whether the learned trial Judge was right when he relied on Section 149(d) of the Evidence Act and OJO v. GHARORO (2006) 2 – 3 S.C, in arriving at the presumption that the evidence of Ahmed Kurfi would have been unfavorable to the Appellants’ case?
5. Whether the claim for profit on the sale of fertilizers, being a claim in special damage, has been strictly proved to entitle the 1st and 2nd Respondents to same and whether the 1st and 2nd Respondents are entitled to pre-judgment interest at 21% per annum?
6. Whether the learned trial Judge was right in ordering the payment of the judgment sum from the designated interest yielding account at the Union Bank Plc and transferring the outstanding balance and interest to any of the Federal High Court Bankers in Kano or Lagos when the Federal High Court was not a party to the action?
7. Whether in the light of the evidence of the 4th Respondent, the learned trial

Judge was right in holding that the increase in share capital, sale and allotment of shares to the 1st Appellant was without the knowledge of the 2nd Respondent?

In the Brief of Argument of the 1st and 2nd Respondents, filed on 24/6/15 and deemed as properly filed pursuant to the order of the Court of 10/7/15, Bob Omeoga Esg. formulated 5 issues for the Court’s determination, as follows:
1. Whether the Federal High Court of Nigeria has the subject-matter and territorial jurisdiction to entertain this action.
2. Whether the increase in the share capital of Gamji Fertilizer Company Limited by the 1st Appellant and the 3rd Respondent and allotment of nineteen million out of twenty million ordinary shares thereof to the 2nd appellant are valid, legal, and regular.
3. Whether the Appellants’ appeal will still be relevant or worthwhile if Issue No. 2 above is resolved in favour of the 1st and 2nd Respondents.
4. Whether the 1st and 2nd Respondents have established any liability against the appellants or any of them in respect of their claims before the Court particularly the 1st Respondent’s unremitted capital investment of $821,844.000 USD

and the 2nd Respondent’s profit share of N88,315.20.
5. Whether the learned trial Judge was right in ordering the payment of the judgment sum from the designated interest-yielding account at the Union Bank, Kano.

In formulating the issues for determination, I shall adopt the issues raised by the Appellants but abridged for succinctness, as follows:
1. Whether the Federal High Court has jurisdiction to entertain the claim before the Court.
2. Whether there was evidence before the trial judge to hold, as he did, that the 1st Appellant was liable for the unremitted value of the fertilizer and furniture allegedly shipped to it by the 1st and 2nd Respondents and to pay to the 2nd Respondent the sum of N87,962,031.20, the 1st Appellant neither being a party or privy to the transaction.
3. Whether the increase in the share capital of Gamji Fertilizer Company Limited by the 1st Appellant and the 3rd Respondent and allotment of nineteen million out of twenty million ordinary shares thereof to the 2nd appellant are valid, legal, and regular.
4. Whether the learned trial Judge was right in ordering the payment of the judgment sum from the

designated interest-yielding account at the Union Bank, Kano.

The 1st issue for determination is:
Whether the Federal High Court has jurisdiction to entertain the claim before the Court?

Arguing this issue, learned Counsel to the Appellants submitted that in determining the question of jurisdiction, the Court considers the Statement of Claim and the law conferring jurisdiction, which in this case is Section 251(1) of the Constitution of the Federal Republic of Nigeria.
?
His contention is that the substance of the reliefs claimed by the 1st and 2nd Respondents is the recovery by them of their pecuniary interest arising from a simple contract between them and the 1st and 2nd-Respondents for the sale of fertilizer and allied products. The jurisdiction of the Federal High Court does not however include matters relating to ordinary contract. The Federal High Court, not being clothed with jurisdiction to entertain the claim, renders this defect in competence fatal and the proceedings null and void. Furthermore, the sellers’ invoices which specified quantities of fertilizers and laminated bags imported, had printed at the bottom of the 1st page

that disputes between the parties were to be resolved in France. The parties are thus bound by the terms embodied in the agreement. He cited the case of Integrated Timber and Plywood Products Ltd v. UBN (2006) All FWLR Part 324 Page 1789 at 1803 Para H.

Counsel contended in the alternative that even if the lower Court had jurisdiction to entertain reliefs (a) and (b), the Court’s lack of jurisdiction in respect of the other claims nullifies the whole proceedings. He cited Onuorah v. K.R.P.C (2008) 6 NWLR part 921 page 393 at 407 para G-H, Unachukwu v. Ajuzie (2009) 4 NWLR part 921 page 407.
?
Responding to this issue, learned Counsel to the Respondents submitted that the Appellants and other Defendants had misappropriated the money of the Respondents, foreign nationals, using the money to unlawfully increase the share capital of the 1st Appellant and allot shares to the 2nd Appellant, thereby reducing the 2nd Respondent to a minority shareholder.
This, he contended, affected the Constitution and management of the former company. Counsel drew the attention of the Court to Clause 30 in Exhibit FAS 17, the Joint Partnership agreement between the 4th

Respondent (Mohammed Abdullahi) and the 2nd Appellant, showing the revised shareholding under the new management of DW1, Nura Bappa as Managing Director. By this purported acquisition, the 2nd Appellant held 95% of the shares of the 1st Appellant, while the 2nd Respondent and his son and the 4th Respondent and his son held 3% and 2% respectively. This effectively gave the 4th Respondent and the 2nd Appellant liberty to appoint, by Clause 30, the Chairman Board of Directors and other Board members.
The 2nd Respondent, having been reduced to a minority shareholder based in France, is entitled to take a minority shareholder?s action under the exception to the rule in Foss v. Harbottle (1843) 2 HARE 461. He referred the Court also to Section 300 (a) -(f) of the Companies and Allied Matters Act (CAMA) as permitting the Federal High Court to restrain by way of injunction the said Acts. He cited Ogunbiyi JCA (as he then was) in NIB Investment (WA) v. Omisore (2005) All FWLR 1880 at 1899 para H. The acts of the Appellants and 4th Respondent were done, he said, in contravention of Sections 102(1), 218(1)(3), 219(1) and 125 of CAMA. In addition, Section 300

of CAMA enjoins any member of a company whose individual right in the company has been violated to seek redress by way of declarations and injunction. In addition, the 1st and 2nd Appellants also claim restitution. The present action challenging the operation of the 1st Appellant by the 4th Respondent and 2nd Appellant, the operation of the 1st Appellant Company and the conversion of its assets into the revised company, was validly instituted in the Federal High Court, he submitted.
?
With respect to the arbitration clause, he submitted that the said invoices containing the arbitration clause, Exhibits FAS 3A and 3B, are documents made between the 1st Respondent (France Appro) and the 3rd Respondent (F. Appro Int) and not the 2nd Appellant (Standard Alliance). The new parties created by the altered arrangement were never contemplated in the initial arrangement for which the arbitral clause was binding. Terms and conditions properly incorporated in a contract are only enforceable against the parties thereto who have agreed to regulate their relationship by such terms and conditions and not otherwise. In addition, there was no dispute, as contemplated by the

agreement, between the seller and the purchaser, viz the 1st Respondent (France Appro) and the 3rd Respondent (F. Appro), as the goods were acknowledged to have been duly received and sold.
?
I note, from the Record of Appeal, that this objection was raised before the trial Court by the 3rd and 4th Respondents, by their Motion dated 13th December 2005. The trial Court, in its Ruling contained at Page 926 of the Record, considered the objection under two prongs, namely whether the Court had subject matter jurisdiction and territorial jurisdiction. The trial Judge, in dismissing the application, referred to the Statement of Claim, to which he acknowledged he was restricted to, in this determination, and the evidence, both oral and documentary. He held that he had jurisdiction, by Section 251 (1) (e) of the Constitution to entertain Reliefs (C) – (G1) of the Amended Statement of Claim. With respect to territorial jurisdiction, he held there to be no dispute as regard the sale and delivery of these items between the contracting parties. He held further that these Defendants were estopped from contesting territorial jurisdiction, having filed Memorandum of

Appearance, Statements of Defence, Amended Statement of Defence, as well as cross examined three witnesses in the course of trial.

This same objection was raised by Counsel to 3rd and 4th Respondents in their final addresses before the lower Court. The trial Judge, in his judgment, (Page 950) held himself bound by his ruling, which he said constituted res judicata.

Now, to the issue for determination on subject matter jurisdiction, Section 251 (1) and (1) (e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters:
e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of Companies incorporated under the Companies and Allied Matters Act.
As rightly submitted by the Appellants’ Counsel, the jurisdiction of a

trial Court is determined by the Writ of Summons and Statement of Claim of the Plaintiff. See James v. INEC (2015) 12 NWLR Part 1474 Page 538 at 597 Para G-H per Mahmoud Mohammed CJN; Sun Insurance Nigeria Plc V. Umez Engineering Construction Company Limited (2015) 11 NWLR Part 1471 Page 576 at 604-605 para H-A per Galadima JSC.

It is indeed true, as submitted by learned Counsel to the Appellants, that cases of simple contracts are not justiciable in the Federal High Court. See the cases of Onuorah v. Kaduna Refining and Petrochemical Co Ltd (2005) 6 NWLR Part 921 Page 393 at 405 para A-D per Akintan JSC Federal College of Education v. Akinyemi (2008) 15 NWLR part 1109 Page 21 at 52-53 Para H-A per Okoro JCA (as he then was). Where, however, the principal claim can be adjudicated upon only in the Federal High Court, that Court, I hold, is the proper forum for determination of the action.
?
In the instant case, the 1st and 2nd Respondents, by their Amended Statement of Claim are complaining of the alteration in the Constitution of the company and their relegation to minority shareholders by reason of unauthorized increase in the shareholding of the

company and the seizure of management of the 1st Appellant from the 2nd Respondent by the 2nd Appellant. This, they said, is through the illegal allotment by the 4th Respondent, in contravention of the law regulating the operation and management of companies. They have, in their reliefs, sought, inter alia, a declaration of nullity of the unauthorized increase and allotment and an order of restraint of the operation of the 1st Appellant by the 2nd Appellant and 4th Respondent.

I do agree with the 1st and 2nd Respondents that these claims, by Section 251 (1) (e) of the Constitution are claims justiciable only in the Federal High Court. The rest of the claims rest largely on payment of monies owed and the enforcement of the profit in line with the agreed shareholding before the unauthorized increase. The determination of these claims, I find, will entail a consideration of the legality of the acts of the Appellants arising from the operation of the company in line with the Companies and Allied Matters Act, justiciable only in the Federal High Court.

?It would not accord with good judicial sense, I hold, for some of the claims to be filed at the

Federal High Court and others in the State High Court, in respect of claims arising from the same transaction, moreso, where a major part of the claim can only be adjudicated upon in the Federal High Court.
The subject matter in the case of Unachukwu v. Ajuzie Supra cited by the Appellants’ Counsel was stated by Ogunbiyi JCA (as she then was) as a “simple contract of sale of a Mercedes Truck 814”. His Lordship referred to the dictum of Obaseki JSC in Tukur v. Governor of Gongola State (1989) 4 NWLR Part 117 Page 517 at 549 that:
“…if there is a Court with jurisdiction to determine all the Issues raised in a matter including the principal issue, it is improper to approach a Court that is competent to determine only some of the issues. The incompetence of the Court to entertain and determine the principal question is enough to nullify the whole proceeding and judgment as there is no room for half judgment in any matters brought before the Court.?
Also referred to by Her Lordship is the contribution of Oputa JSC where he held at Page 567.
“… A Court cannot adjudicate over ancillary claims if it has no jurisdiction to entertain the

main claim and if the ancillary claims will inevitably involve a discussion of the main claims.”

The instant case is however distinguishable from these cases, as the principal claims in the instant case are justiciable only in the Federal High Court. The fact that some of the claims are justiciable in the State High Court, for the reasons given by me above, does not divest the Federal High Court of jurisdiction to have entertained the entirety of the claims.

I accordingly hold that the claim of the 1st and 2nd Respondents was properly entertained by the Federal High Court.
With respect to territorial jurisdiction, the arbitral clause is contained Exhibit FAS 3A and 3B, Sellers Invoice, which reads:
“Jurisdiction and Arbitration
Any dispute between the seller and purchaser, not resolved amicably, shall be brought before the Commercial Court of Saint Malo. The French Law is applicable for any kind of dispute or claim between France-Appro and the purchaser”

I am again in agreement with the observation of the trial Judge and also as pointed out by learned Counsel to the 1st and 2nd Respondents that the parties to this invoice, as

stated thereon, are the 1st Respondent and the 3rd Respondent. The claim of the 1st and 2nd Respondents, in their Statement of claim, however includes the 1st Appellant, 2nd Appellant and the 4th Respondent as defendants to the action. As submitted by the Counsel to the 1st and 2nd Respondents, terms and conditions properly incorporated in a contract are enforceable against the parties thereto who have agreed to regulate their relationship by such terms and conditions between them, and terms cannot be read into the contract upon which there was no agreement between the parties. See JFS Investment Ltd v. Brawal Line Ltd (2010) 18 NWLR Part 1225 Page 495 at 531 para B-C per Adekeye JSC.
It was also held in the case of Agbareh v. Mimra (2008) 2 NWLR part 1071 Page 378 at 412 Para G-H per Ogbuagu JSC that in agreement is binding only on the parties thereto and not on third parties.
?The parties to this suit include not only the parties to the arbitral agreement but also the 1st and 2nd Appellants, who, I hold, are strangers to the invoice containing the arbitration clause. An arbitral clause, I hold, can only bind the parties to the agreement entered into

and not third parties, which the Appellants are.
In support of this principle is the case of African Insurance Development Corporation v. Nigeria Liquefied Natural Gas Limited (2000) 4 NWLR Part 653 Page 494 at 504 para B-D, where Ayoola JSC, referred to Section 5(1) of the Arbitration and Conciliation Act, 1988 which provides that-
“If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement, may at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the Court to stay proceedings.”
His Lordship held:
“It is evident from the provisions of Section 5(1), that the applicant for a stay of proceedings must be a ‘party to the arbitration agreement’ and that the subject matter of the action must be “with respect to any matter which is the subject of an arbitration agreement.”
In the instant case, as aforesaid, the Appellants that seek to enforce the arbitration clause are not parties to the arbitration agreement.

Furthermore, and as held by

the trial Judge, the Appellants, having fully participated in the trial by filing their pleadings and allowing the matter to go to trial, have waived any right to contest the territorial jurisdiction of the Court.
In the case of Osun State Government v. Dalami (Nig) Ltd (2003) 7 NWLR Part 818 Page 72, the objection of the Appellant therein was similar to the instant case, that the trial Judge erred by failing to strike out the case or stay further proceedings when it was clear that the condition precedent to litigation, viz arbitration, had not been concluded before resort to litigation. The Court of Appeal per Onalaja JCA at page 93, held:
“Without much ado this ground of appeal has been taken over by event and waiver (sic) by filing of Statement of Defence by the Appellant and 2nd Respondent in that they took further step and did not apply to the Court below under Section 5 of the Act and Arbitration Law of Oyo State for stay of proceedings for failure to refer the matter to arbitration as a condition precedent before commencement of action”
For failure to object timeously under Section 5 of the Arbitration and Conciliation Act 1988 as

contained in Cap A18 LFN 2004, the Appellants, even had they been covered by the Arbitral Agreement, have, I hold, waived any rights they might have had under the Agreement.

The Federal High Court, I accordingly hold had and rightfully exercised jurisdiction to entertain the claims of the 1st and 2nd Respondents.

The 2nd issue for determination, is:
Whether there was evidence before the trial judge to hold, as he did, that the 1st Appellant was liable for the unremitted value of the fertilizer and furniture allegedly shipped to it by the 1st and 2nd Respondents and to pay to the 2nd Respondent the sum of N87,962,031.20, the 1st Appellant neither being a party or privy to the transaction.

Learned Counsel to the Appellants submits that consequent upon the denial of the Appellants to the claim, the onus rested on the 1st and 2nd Respondents, to prove their claim before the Court that the Appellants actually received, marketed and sold the products, thus incurring the said liability. None of the witnesses called by the Claimants before the Court, testified to this effect. This is moreso, as Exhibits FAS 2A, 2B, 3A and 3B by which the goods

were shipped, do not contain the name of the 1st Appellant, Gamji, as the recipient of the goods. There was therefore no nexus between the Appellants and the said Respondents with respect to the contract. The finding that the 1st Appellant was jointly liable with the 3rd and 4th Respondents was therefore perverse. He pointed further to the evidence of DW2, Mohammed Abdullahi (4th Respondent) who testified that the chairs were seized by the Nigerian Customs. Counsel also referred to other charges allegedly paid by DW2 and expenses incurred which he alleged were not taken into contemplation by the trial Judge. Had this been done, the trial Judge would not have arrived at the sum of N821,844 as unremitted balance of the capital investment. Where the evidence before the Court is largely documentary, this Court, he submitted, is in as good a position as the trial Court to evaluate such documentary evidence and draw the necessary inferences. He cited the cases of Ishola v. UBN (2005) All FWLR Part 256 Page 1202 at 1216 per Akintan JSC; Oyekola v. Ajibade (2005) All FWLR Part 242 Page 436; Obmiami Brick and Stone (Nig) Ltd v. ACB Ltd (1992) 3 NWLR Part 229 Page 260 at

294 Para H. Counsel also alleged that the claim sets out the entitlement of the 2nd Respondent and his son, on the basis of 60% shareholding. The 2nd Respondent’s son is however not a party to this suit. The Court should thus not have awarded a relief in his favour.

Responding to the contention of the Appellants that Exhibits FAS 2A, 2B, 3A and 3B, by which the goods were shipped, did not contain the name of the 1st Appellant to warrant the finding of liability against it and that it was not proved that it received, marketed or sold the products, Counsel referred the Court to the evidence of DW2 in which he stated that the 1st Appellant was used to market the fertilizer as agreed. This witness, he submitted, testified that in consequence of this agreement, the goods were marked “Gamji Fertilizer”, which fertilizers were purchased by some States and Corporations, all proving that the fertilizers were shipped by the 1st Respondent and marketed by the 1st Appellant, Gamji.
?
Responding to the argument that the charges incurred by the Appellants were not taken into contemplation, Counsel submitted that the evidence before the Court was that the obligation

of the 1st Respondent, as shippers or consignors, ended upon discharge of the goods from the ship and that expenses for transportation of the goods to the warehouse, warehousing and transportation up country, were the responsibilities of the consignees.
He referred to the evidence of PW3, the Administrative Manager of the 1st Appellant, said to be uncontradicted, that unknown to the Managing Director of the 1st Respondent, the 4th Respondent, Alhaji Abduliahi opened other accounts in other banks in the name of the 1st Appellant into which customers paid for fertilizer purchased. This witness would then deceitfully issue cheques on the designated account for payment of the 1st Respondent, which cheques in many instances were returned unpaid.
Counsel further referred to the evidence with respect to the receipt of the plastic chairs and asked the Court to affirm the judgment of the lower Court that the 1st Appellant was indeed in possession of the chairs and which were sold by it, thus rendering it liable.

He contended further that the Appellants and the other Defendants, on whom the burden lay that the goods were contraband or seized by the

Nigerian Customs, failed to discharge this burden. It is thus erroneous to suggest that the contract was frustrated. Counsel referred to contradictions and inconsistencies in the evidence of DW2 (4th Respondent), asking this Court to reject his evidence. He urged the Court to hold that the 2nd Respondent paid for all transportation from the port to the warehouse and the cost of warehousing. Counsel also urged the Court to affirm the decision of the trial Court that the 2nd Respondent is entitled to the sum of N87,962,031.20 representing his share of profit in the fertilizer transaction.
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In his Judgment, the learned trial Judge, deliberating on the claim of the claimants before him and the counter claim of the 3rd and 4th Respondents, agreed that the onus was on the Claimants, by Sections 135 and 137 of the Evidence Law 1990, to prove their claim. He referred to the evidence of the principal witnesses of the 1st and 2nd Respondents and the evidence of DW2 regarding the shipment of the goods. He examined the documents in contention showing the prices of the goods “liner out”, covering the total prices of the goods and shipment, inclusive of freight,

insurance, discharging of the goods and custom duties. He calculated, from the documents before him, the total profit made from the fertilizers at the prevailing exchange rate, which, by the agreement between the parties, amounted to 60% of the sum of N146,604,00.52, being the sum of N87,962,034.20 that enured to the 2nd Respondent.

With regard to the claim of $821,844.00, the Naira equivalent of which was stated before the Court to be N112,592,628, being the unremitted balance of the capital investment of the Claimants on the goods shipped, the judgment of the trial Judge was as follows:
“Subsequently there was a business transaction in which the 1st Plaintiff shipped to the 1st Defendant for marketing, sales and distribution by the 3rd Defendant, NPK fertilizers, laminated PP Bags and Plastic furniture valued at $3,479.744 USD evidenced by EXHIBITS FAS 2A, 2B, 3A & 31. The laminated PP Bags were marked “Gamji Fertilizer” whilst the sales of goods was on “Bills for collection” basis meaning payments after sales. Remittances were made through 1st Defendant’s Reliance Bank LTD Accounts of which the 2nd Plaintiff was signatory.
PW’S evidence

was corroborated by PW3, MALLAM ABDULLAHI HASSAN who said that there was an unremitted balance of $821,844.00 USD which the 2nd Defendant promised on a number of occasion to redeem. This oral evidence was never challenged by the 1st, 2nd & 3rd Defendant in Court at trial. It is the COURT’S opinion from the oral evidence of PW1, PW3, DW1 & DW2 and EXHIBITS FAS 1 FAS 6 1 – 9 FAS 7, MSA 14 & 15 MSA 373, the PLAINTIFFS through 2nd plaintiff (PW2) financed this entire transaction originating in FRANCE, with the shipment of the goods and transportation of the said goods from the port (Tincan-Island, Lagos) to the Warehouse in Lagos, its warehousing while the purchasers of the said goods were responsible for its transportation from Lagos to their various destinations.
A careful perusal of EXHIBIT AU 4A attached to EXHIBIT FAS 18, 1st Defendants Reliance Bank A C of which the 2nd Plaintiff is sole signatory shows numbers of remittances totaling $2,599.910.45 making the actual unremitted balance as $879,834 and not $821,844.”
He thence held:
“Having taken into consideration the evidence of PW1, PW3 DW3 as well as their demeanour, the

annexures AU4A of EXHIBIT FAS 18, the 1st PLAINTIFF, FRANCE APPRO SAS, has proved this head of claim for the sum of $821,844.00 USD or its Naira equivalent at the prevailing market rate representing the unremitted balance of its capital investment on the consignment of fertilizers, Laminated PP Bags and furniture shipped to the 1st, 2nd and 3rd Defendants.”

He thereafter considered the defences put up by the Defendants before him and examined the various documents referred to. He drew conclusions from these documents, which he said were detrimental to the defence and failed to disprove the case of the Claimants. He held the defence estopped from contesting the legality of the chairs imported as being contraband, having been part of the transaction.
He held:
“The 1st and 2nd Defendants have failed to prove the illegality of the contract vis a vis the Customs and Excise Management Act (CEMA 2004) by way of oral and/documentary evidence at trial. The 3rd Defendant (1st Appellant herein) was in existence at 2002 from the uncontroverted evidence of PW1 and Exhibits FAS 5, 10, 12…….. I believe the evidence of PW1 & PW3 supported EXHIBITS FAS 19A

& 19B authored by the 2nd Defendant (Dw2) that the plastic furniture was in the possession of the 1st, 2nd & 3rd Defendants and they are liable to the 1st Plaintiff for the said sums claimed and accounts thereof.
From the oral and documentary evidence before the COURT particularly of DW1 N BAFFA & EXHIBITS GFCL 1 – GFCL12 the 4th Defendant, STANDARD ALLIANCE FINANCIAL SERVICES LTD is not liable to the PLAINTIFFS in respect of the unremitted value of the fertilizers, laminated PP Bags & plastic furniture.?

I have no reason to impugn or depart from the reasoning of the Court. It is settled law that evaluation of evidence and ascription of probative value is the primary function of the trial Court which heard and watched the witnesses testify. An appellate Court will not ordinarily interfere with the findings of a trial Court unless in special or exceptional circumstances, such as where the finding of the trial Court is not supported by the evidence or is otherwise perverse or where the trial Court has not made full use of the opportunity of watching the demeanor of the witnesses. See Civil Design Construction (Nig) Ltd v. SCOA

(Nig.) Ltd. (2007) 6 NWLR (pt.1030) 300 at 339-340 Para H-B per Onnoghen JSC.
Issues relating to the demeanour of witnesses, which a trial Court saw and assessed, and the ascription of weight to their evidence are the exclusive prerogatives of the trial Court due to the initial advantage which the Court had of actually seeing and assessing the witnesses, which this Court cannot interfere with. This privilege is not given to the appellate Court. The trial Court has the power to ascribe credibility to the evidence of witnesses who testified before it. For these principles see Omisore v. Aregbesola (2015) 15 NWLR Part 1482 page 1 at 275 para E-G per Nweze JSC; Ukeje v. Ukeje (2014) 11 NWLR Part 1418 Page 384 at 405 para H per Rhodes-Vivour JSC; Ali v. State (2015) 10 NWLR Part 1466 page 1 at 35 Para D-E per Ogunbiyi JSC.
?When an Appeal Court addresses questions of fact it should accord, I hold, high regard to the findings of the trial Court, since that Court saw the witnesses, was able to asses them and made findings on demeanour, which an Appeal Court cannot easily dislodge. An appellate Court, it is trite, should not substitute its own opinion of the

evidence for that of the lower Court. See Awodi v. Ajagbe (2015) 3 NWLR part 1447 page 578 at 612 Para F-G per Rhodes Vivour JSC.
On the findings of fact of the trial Judge, I have no reason, as aforesaid to impugn the same. Indeed, the trial Judge was disdainful of the evidence and conduct of the defence. He referred to DW2 as a “dupe” and “most unreliable, dishonest and fraudulent”.
While it is indeed true, that in the matter of evaluation of documentary evidence, the appellate Court, as the trial Court, has the power to so do, the circumstances under which this Court should undertake this task do not arise in the instant case where the trial Court has meticulously evaluated such documents.

Indeed, on the question of the liability of the 1st Appellant, when, as argued by the Appellant?s Counsel, it was not a party to the agreement between the Plaintiffs before the lower Court and the 1st and 2nd Defendants (F. Appro and Mohammed Abdullahi), I refer to the pleadings of 1st and 2nd Respondents and the Appellants.
?
The 1st and 2nd Respondents, in their Amended Statement of Claim, contained at Pages 226-232 of the Records, averred as

follows:
6. The modus operandi of business transaction between the first plaintiff and the first defendant was that the first plaintiff would be shipping fertilizers to the first and second defendants for sale and distribution in Nigeria.
7. To ensure more effective and widespread distribution of the plaintiff?s products in Nigeria, the second plaintiff and the second defendant incorporated another company – Gamji Fertilizer Company Limited with head office at No. 4 Mohammed Maude Street, Off President Avenue, Bompai Kano. The second plaintiff and his son had 60% of the majority shareholding in the new company while the second defendant and his son had 40% minority shareholding. The Plaintiffs hereby plead articles and memorandum of Association or their certified true copies of Gamji Fertilizer Company Limited. The incorporation of both the first and 3rd defendants was done by the second defendant and financed by the Plaintiffs.
8. Consequent upon the above paragraphs, the Plaintiffs at the request of the first and second defendants shipped to them, for marketing by the third defendant which the second defendant is also the Managing

Director, 15730 metric tones of NPK fertilizer valued $3,381,950.00 USD and 332,500 laminated pp bags valued $76,475,00 USD both totaling $3,458,425.00 USD, for sale. The Plaintiffs at the request of the above named defendants also shipped to them various furniture valued $21,319,45 USD, for sale, all valued $3,479,744.45 USD.
11. The first, second and the third defendants sold all the goods shipped to them by the Plaintiffs but remitted to the Plaintiffs $2,657,900.45 USD only leaving a balance of $821,844.00 of the capital investment. The Plaintiffs hereby plead in evidence the letters dated 11th May 2005 and 13th May 2005 respectively.
Exchange between the 1st and 2nd Defendants’ Solicitors Okechukwu Nwaeze & Co and their Solicitors Bob Omeoga & Co. on the position of the furniture shipped to the Defendants.
12. In addition to paragraph 11 above, the second defendant as the Managing Director of the first and third defendants failed, refused and or neglected to account for the huge profit which amounted to above N146,767,192.00, made from the transaction …
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The response of the Appellants to these averments, as contained at page

385 of their joint Amended statement of Defence is as follows:
5. The 3rd and 4th Defendants deny paragraphs 6, 7, 8, 9, 10, 11 and 12 of the Plaintiffs’ statement of claim to the extent that they were neither directly nor indirectly privies to the transactions therein contained and that their attention was at no point drawn to the existence of any such relationship by the plaintiffs even when he 2nd Plaintiff had every cause to do so when his attention to the business relationship existing between the 2nd Defendant in his capacity as a director of the 3rd Defendant, was drawn vis a vis the 3rd and 4th Defendants.
6. The 3rd & 4th Defendants specifically deny paragraph 12 of the Statement of Claim to the extent that the 2nd Defendant acted as the Managing Director of the 3rd Defendant in dealing with the Plaintiffs and maintained further that the alleged profit, if any, was realized in their business relationship was handled by the 2nd Defendant not in his capacity as the Managing Director of the 3rd Defendant an the 3rd and 4th Defendants were any way not aware of the purported huge profit referred to therein.

It is clear from the response

of the Appellants that the relationship between the 1st Appellant and the other Respondents was not questioned or denied.
It is therefore deemed admitted by the Appellants that the 1st Appellant was incorporated by the 2nd Respondent and the 4th Respondent, duly financed by the 1st and 2nd Respondents and that the purpose of establishment of the 1st Appellant was to market and distribute the products of the 1st and 2nd Respondents. The law, as held by my humble self in the case of Khatoun Enterprises Ltd v. United (Nig) iles (2014) 18 NWLR part 1438 Page 1 at 26 Para F-H is that in order to raise an issue of fact in pleadings, there must be a proper traverse. A traverse must be made either by a denial or non admission either expressly or by necessary implication.
See also Oshodi v. Eyifunmi (2000) 13 NWLR Part 684 Page 298 at 337 Para B per Iguh JSC.

The trial Judge, I accordingly hold was right in holding that the 1st Appellant was liable for the unremitted value of the items shipped by the 1st and 2nd Respondents and in awarding the sums claimed against it.
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The quantum of damages, I note, was meticulously tabulated and computed by the

trial Judge, from the various documents and invoices tendered. He discountenanced some of the monetary claims of the 1st and 2nd Respondents which they alleged represented profits they were denied of, holding that evidence in respect thereof was not given and was at variance with their pleadings. I again have no reason to disagree with the lower Court’s findings on the special damages awarded.

With regard to the interest on the judgment debt, the Appellants have complained that the award was “21% interest at Bank rate from August 2002 till the date of judgment and thereafter at 10% Court rate of the judgment sums until final liquidation of the judgment debt.”
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The law is that for a party to be awarded anything above the statutory interest awardable there must be evidence of the right to that sum on record. The evidence may be the agreement between parties or evidence of mercantile custom relevant to the transaction between the parties. It is not enough to claim the additional interest in the Writ without pleading facts in support. See Texaco Overseas Unlimited v. Pedmar (Nig) Ltd (2002) 13 NWLR (Pt. 785) Page 526 at Page 547 Para D-F per Ejiwunmi JSC;

Himma Merchants Ltd v. Aliyu (1994) 5 NWLR Part 347 page 667 at 676-677 Para E-G per Onu JSC.
Statutory interest as provided by the rules, however, need not be pleaded, since the power to award interest under the rule is one which derives from the rule. It therefore need not be pleaded in the Writ or Statement of Claim.
See Berliett v. Kachala (1995) 9 NWLR (Pt. 420) page 478 at pages 490-491 Paras F-C per Umaru Onu JSC.

As there was no pleading or proof before the lower Court of mercantile custom or agreement to pay this rate of interest, the lower Court, I hold, was in error to have awarded pre judgment interest of 21%. The interest of 10% per annum from the date of judgment until final payment is however statutory as allowed by the Federal High Court (Civil Procedure Rules and was therefore rightly awarded. I accordingly resolve this issue partly in favour of the Appellants and partly in favour of the Respondents.
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The 3rd issue for determination is:
Whether the increase in the share capital of Gamji Fertilizer Company Ltd by the 1st Appellant and the 3rd Respondent and allotment of Nineteen Million out of Twenty Million ordinary

shares thereof to the 2nd Appellant are valid, legal, and regular.

Learned Counsel to the Appellants referred to the evidence of DW2, Alhaji Abdullahi, the 4th Respondent, who had alleged that the 2nd Respondent, Monsieur Lionel Martins, had knowledge of and consented to the increase in the share capital and the sale and allotment of shares in Gamji. The documents showing the knowledge and acquiescence of the 2nd Respondent, he said, were unchallenged. The acquisition was thus lawfully done and the 2nd Respondent estopped from denying that the share acquisition was lawfully done. He cited Section 169 of the Evidence Act 2011 on estoppel by conduct and the case of Joe Iga v. Ezekiel Amakiri (1976) 11 SC 1 at 12.
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Learned Counsel to the 1st and 2nd Respondents referred to Section 102(1) of the Companies and Allied Matters Act on the manner of increase of share capital. He referred to documents exhibited to applications before the Court purporting to be in respect of an extraordinary meeting of the Board of Directors of Gamji where a Special Resolution was allegedly passed increasing the share capital from N1 Million to N20 Million by creation of

19,000,000 ordinary shares. This meeting, he submitted, was false, confirmed by the evidence of the 2nd Respondent as 2nd Plaintiff before the lower Court. He referred to the evidence of DW2 who had admitted that the 2nd Respondent had never been present at any of the Board Meetings and that communication was only by phone calls. Counsel directed the Court to Section 232, 233 and 234 of CAMA, on the illegality of the special Resolution passed. No Notice of Meeting, he said was given, contrary to the Act. He referred, in addition to the requirements in the Memorandum and Articles of Association of the Company on the quorum and manner of increase of share capital. He urged the Court to hold that there was no meeting of Gamji at which its share capital was increased, with no minutes tendered. These particulars of fraud were pleaded and proved, he said, as required by law. The fraudulent allotment of 19 Million shares in the equity of the 1st Appellant by the 2nd Appellant could therefore not stand. The Court should thus affirm the finding of the lower Court and hold the Appellants bound to the requirement of the law.
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The lower Court deliberating on this

issue, in its judgment at page 960 of the Record, held as follows:
“Section 102 of the Companies and Allied Matters Act (CAMA) 1990 (as amended) empowers a Company to increase its share capital if it so desires in a general meeting and not otherwise. By virtue of Article 5, Part 1, Table A of Schedule 1 to CAMA 1990 as amended and Article 22 & 23 the share capital of 3rd Defendant company can only be increased by an ordinary resolution.
Consequently there is need to call a General Board Meeting of the 3rd Defendant in which the ordinary resolution would be adopted. The said Notice of the 3rd Defendant general meeting must also contain the amount of the proposed increase. See The case of Mac Cornell v. Prill & Co. Ltd (1916) 2 CH 57. There is no evidence of notice of a General Board of Directors meeting, let alone a notice being served on the directors of the 3rd Defendant by the 3rd Defendant on whom the Burden of proof shifted from the plaintiffs. The evidence before the Court is that there were no notices issued for any meeting to be attended by the 3rd Defendant company directors. The 2nd Plaintiff and his son ALEXANDRE, directors and

majority shareholders of the 3rd Defendant were in France and 2nd Defendant’s son never attended such a meeting. I refer to PW1 & DW2?s evidence before the Court. Furthermore on this basic and fundamental legal requirement the 3rd Defendant has failed to furnish the Court with minutes of any meeting(s) of the 3rd Defendant to establish its case which is it held was illegally convened having regard to EXHIBIT FAS 12 and Sections 215, 220 of CAMA 1990 as amended. The EXHIBITS C & D dated 1st day of June 2005 and attached to the affidavit in support of motion dated 4th day of May 2005, and Exhibits 26 B & C are false, forged and fraudulently procured on every material particular by the 3rd & 4th Defendants. See Nigerian Companies and Allied Matters LAW & PRACTICE 17 VOLS. 1 & 3 DSC PUBLICATIONS 1991 and the cases of (i) OSONDU V. FRN (2000) 12 NWLR (pt. 682) 483 CA (II) NIGERIAN AIR FORCE V. JAMES (2002) 18 NWLR (Pt. 798) 295 SC (iii) IFEGWU v. FRN (2001) 13 NWLR (pt. 729) 103 CA. Assuming which is not conceded the meetings held on 27th day of June 2004 as per EXHIBITS of motion on notice dated 4th day of May 2005 they are hereby

invalidated in line with Section 221 of CAMA 1990 (as amended) for the reasons in the foregoing paragraphs of this Judgment. The EXHIBITS 26 B & C resolution for re-allotment of share & return of allotment of shares and EXHIBITS C & D hereinbefore referred to are declared invalid, illegal, null & void of no effects.
They are to be expunged from the Corporate Affairs Commission (CAC) records by the Registrar General forthwith. See ALALADE v. NORTHLINE IND & AGRIC SERVICE LTD (2003) 14 NWLR Part 839 172 CA at pg 185 paras FIL P 186 paras B – D C -E OGUNTADE JCA as he then was.
If is also trite law that a thing placed on nothing cannot stand see MACFOY V. U.A.C. LTD (1962) A.C. 152. The 4th Defendant’s acquisition of equity in the 3rd Defendant company vide purported 19 million shares is based on EXHIBITS C & D AND EXHIBITS FAS 26 B & C herein before in the preceding paragraphs of this Judgment. I adopt my earlier findings in this Judgment on the said Exhibits in their entirety, the oral evidence of PW1, PW3, Dw1 & Dw2 and other relevant EXHIBITS tendered at TRIAL in coming to tie irresistible conclusion that the

purported acquisition of N19,000,00.00k share equity in the 3rd Defendant.
GAMJI FERTILIZER COMPANY LTD by the 4th Defendant. STANDARD FINANCIAL SERVICE LIMITED is illegal, irregular and of no effect and I so declare.?

The trial Judge had very strong words for the 4th Respondent. He stated:
“I must not end this Judgment without commenting on the 2nd Defendant?s character. ALHAJI MOHAMMED SANI, ABDULLAHI (Dw2), the erstwhile Managing Director of the 1st & 3rd Defendants.
He proved to be a dupe (419) and a most unreliable, dishonest & fraudulent witness during TRIAL of this case. The 2nd Defendant was an indigent person engaged by the 2nd Plaintiff, a French Citizen and businessman seeking to invest in Nigeria like the 4th Defendant STANDARD ALLIANCE FINANCIAL SERVICE. I refer to PW2 & DW1’s evidence. The two, Plaintiffs and Fourth Defendant became victims of a massive organized fraud perpetrated by the 2nd Defendant with the connivance or lack of due diligence of professionals who should know better. The less said on this point the better.?

?I note that tendered before the trial Court by PW4,

Aisha Hussaini, the Registration Officer in Charge of Business Names from the Corporate Affairs Commission, Zonal Office, Kano, subpoenaed by the Claimants, are the Resolutions by which the Share Capital of the 1st Appellant were increased from One Million shares of N1 each to Twenty Million Shares of N1 each. These Resolutions, filed on 6/7/04 were tendered as Exhibits FAS26A, FAS26B and FAS26C.
FAS26B is a Resolution of Gamji Fertiliser Company Ltd, the 1st Appellant, which is set out hereunder:
?GAMJI FERTILISER COMPANY LTD
RC 462221
4 Moh’d Maude Street
Off President Avenue
Bompai, Kano – Nigeria.
Tel: 234-64-647919
Fax: 234-64-647920
080-44115774
DATE: 6th July, 2004
THE FEDERAL REPUBLIC OF NIGERIA COMPANIES AND ALLIED MATTERS ACT 1990 SPECIAL RESOLUTION OF GAMJI FERTILISER COMPANY LIMITED RC 462221 PASSED ON THE 6TH DAY OF JULY 2004
PRESENT
1. LIONEL MARTIN
2. MOHAMMED SANI ABDULLAHI
3. ABDUL MUTALLIB MOH’D SANI
4. ALEXANDER MARTIN
RESOLUTION FOR RE-ALLOTMENT OF SHARES
At the extra ordinary General Meeting of the Board of Directors of the above

company duly convened and held at the registered office of the company situate at 4 Moh?d Maude Street, Off President Avenue, Bompai, Kano at around 4:00pm on 6th day of July 2004 with the above directors in attendance.
And in accordance with the approval given by the resolution of the company dated same and accordingly.
That nineteen million ordinary shares of the share capital of the company is re-allotted to the Standard Alliance Financial Services Limited a limited liability company registered in Nigeria with RC 266231.
The meeting was closed at around 5:00pm as there was no any other business to be discussed.
DATED THIS 6TH DAY OF JULY, 2004
Signed
Director?

Also tendered was a Resolution of the 1st Appellant dated 27th June 2004 and signed by the 4th Respondent, stating that at an Extraordinary General Meeting of the Board of Directors held in Kano on 27/6/2004, a Special Resolution was passed that the Share Capital of the 1st Appellant be increased from N1Million to N20Million by creation of 19,000,000 ordinary shares of N1 each. Also tendered was the Return of Allotment showing the Nineteen Million

Shares of the 1st Appellant allotted to the 2nd Appellant, Standard Alliance.

The initial Memorandum and Articles of Association of the 1st Appellant showed the initial shareholding to be the total of One Million shares at N1 per share in the proportion 500,000 shares to the 2nd Respondent (Lionel Martin), 300,000 to the 4th Respondent and 100,000 each to their respective sons.

The evidence of PW3 Mallam Abdullahi Hassan, who was the Administrative Manager in the 1st Appellant as well as the 3rd Respondent (F. Appro) at the period in question, is that the 2nd Appellant was approached by the 4th Respondent to invest in the 1st Appellant, who gave as his condition an increase in the share capital of the 1st Appellant by N20 Million, which was accordingly done. The witness admitted that the 2nd Respondent never came to Nigeria to discuss increase in shares of the company, merely to demand his unremitted $821,944 (or is at 821,000) unremitted money.
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The evidence of the 2nd Respondent is that he never received any notice of any meeting for the purpose of increase of the share capital of the company and that it was only on receiving information

from a partner of his in Russia concerning activities of the 1st Appellant that his Solicitor discovered, following a search at the Corporate Affairs Commission, of the change of ownership of the company, reducing him from a majority share holder of 60%, to a minority share holder of only 5% of the shares.

As pointed out by the trial Judge in his Judgment, the requirement of Sections 102 and 215 of the Companies and Allied Matters Act 2004 (now Cap 20 of the Laws of the Federation 2010) is that there must be a general meeting held for the purpose of an increase in the share capital of the 1st Appellant, notification of which must be given to the Directors.
Essential requirements for the validity of the process are as contained in the Sections of CAMA set out below:
?SECTION 102
INCREASE OF SHARE CAPITAL AND NOTICE OF INCREASE
1. A company having a share capital whether or not the shares have been converted into stock may, in general meeting and not otherwise, increase its share capital by new shares of such amount as it thinks expedient.
SECTION 215
EXTRAORDINARY GENERAL MEETING
1. The Board of directors may

convene an extraordinary general meeting whenever they deem fit, and if at any time there are not within Nigeria sufficient directors capable of acting to form a quorum, any director may convene an extraordinary general meeting.
2. An extraordinary general meeting of a company may be requisitioned by any member or members of the company holding at the date of the requisition not less than one-tenth of the paid-up capital of the company as at the date of the deposit carrying the right of voting, or in the case of a company not having a share capital, members of the company representing not less than one-tenth of the total voting rights of all the members having at the said date a right to vote at general meetings of the company, and the directors shall on receipt of the requisition forthwith proceed duly to convene an extraordinary general meeting of the company, notwithstanding anything in its articles.
3. The requisition shall State the objects of the meeting, and be signed by the requisitionists and deposited at the registered office of the company, and the requisition may consist of several documents in like form each signed by one or more

requisitionists.
4. If the directors do not within 21 days from the date of the deposit of the requisition proceed duly to convene a meeting, the requisitionists, or any one or more of them representing more than one-half of the total voting rights of all of them, may themselves convene a meeting:
Provided that any meeting so convened shall not be held after the expiration of three months from that date.
5. A meeting convened under this Section by a requisitionist or requisitionsts shall be convened in the same manner, as nearly as possible, as that in which meetings are to be convened by directors.
SECTION 217
(LENGTH OF NOTICE FOR CALLING MEETINGS)
1. The notice required for all types of general meetings from the commencement of this Act shall be 21 days from the date on which the notice was sent out.
2. A general meeting of a company shall, notwithstanding that it is called by a shorter notice than that specified in Subsection (1) of this Section, be deemed to have been duly called if it is so agreed in the case of –
a. a meeting called as the annual general meeting, by all the members entitled to attend and vote

thereat; and
b. any other general meeting, by a majority in number of the members having a right to attend and vote at the meeting, being a majority together holding not less than 95 per cent in nominal value of the shares giving a right to attend and vote at the meeting or, in the case of a company not having a share capital, together representing not less than 95 per cent of the total voting rights at that meeting of all the members.
SECTION 218
CONTENTS OF NOTICE
1. The notice of a meeting shall specify the place, date and time of the meeting, and the general nature of the business to be transacted thereat in sufficient detail to enable those to whom it is given to decide whether to attend or not, and where the meeting is to consider a special resolution shall set out the terms of the resolution.
2. In the case of notice of an annual general meeting a statement that the purpose is to transact the ordinary business of an annual general meeting shall be deemed to be a sufficient specification that the business is for the declaration of dividends, presentation of the financial statements, reports of the directors and auditors, the

election of directors in the place of those retiring, the fixing of the remuneration of the auditors and, if the requirements of Sections 362 and 363 of this Act are duly complied with, the removal and election of auditors and directors.
3. No business may be transacted at any general meeting unless notice of it has been duly given.
SECTION 219
(PERSONS ENTITLED TO NOTICE)
1 The following persons shall be entitled to receive notice of a general meeting –
a. every member;
b. every person upon whom the ownership of a share devolves by reason of his being a legal representative, receiver or a trustee in bankruptcy of a member;
c. every director of the company;
d. every auditor for the time being of the company; and
e. the secretary of the company.
2. No person other than those mentioned in Subsection (1) of this Section shall be entitled to receive notices of general meetings.
SECTION 233
(RESOLUTIONS)
1. A resolution shall be an ordinary resolution when it has been passed by a simple majority of votes cast by such members of the company as, being entitled to do so, vote in person or by proxy at a

general meeting.
2. A resolution shall be a special resolution when it has been passed by not less than three-fourths of the votes cast by such members of the company as, being entitled to do so, vote in person or by proxy at a general meeting of which 21 days’ notice, specifying the intention to propose the resolution as a special resolution, has been duly given:
Provided that, if it is so agreed by majority in number of the members having the right to attend and vote at any such meeting, being a majority together holding not less than 95 per cent in nominal value of the shares giving that right or, in the case of a company not having a share capital, together representing not less than ninety-five per cent of the total voting rights at that meeting of all the members, a resolution may be proposed and passed as a special resolution at a meeting of which less than twenty-one days, notice has been given.
In the Articles of Association of the Company before the lower Court, clauses 22 and 23, referred to by the trial Judge, states as follows:
ALTERATION OF CAPITAL
Article 22
The Company may from time to time by ordinary

Resolution increase the share capital of the company by sum to be divided into shares of such amount as the Resolution shall prescribe.
Article 23
The shares for the time being issued shall be issued to whom and upon such terms and conditions as the Directors shall determine

It has not been denied by the Appellants that there was no meeting as stipulated by the law. Indeed, this was the admission of PW3, the Administrative Manager of the 1st Appellant and DW2. Notification by phone call, as DW2 contends, is not, I hold, sufficient compliance with the requirements of the Statute above. Indeed, the resolution set out above Exhibit FAS 26B., which the Appellants rely upon as authorizing the increase and re-allotment of shares, tells a lie against itself as it states that present at the meeting held at Kano, authorizing this increase and re-allotment, are the 2nd Appellant and his son, among others. This is clearly not true, as admitted by them. The finding of the lower Court can thus not be faulted.
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The trial Judge, I hold, was thus right in his declaration that the increase in share capital of the 1st Appellant and the allotment of

19,000,000 out of 20,000,000 shares to the 1st Appellant are not valid.

The last issue for determination is:
“Whether the learned trial Judge was right in ordering the payment of the judgment sum from the designated interest-yielding account at the Union Bank, Kano and transferring the outstanding balance and interest to any of the Federal High Court Bankers in Kano or Lagos when the Federal High Court was not a party to the action.?

The Appellants have complained against the 10th and 11th Orders made by the trial Judge in his judgment, namely:
10. The Deputy Chief Registrar, Federal High Court Kano, is hereby ordered to pay the Judgment sums and costs from the specially designated interest yielding account at Union Bank of Nigeria Plc, opened pursuant to the Court orders of 27th day of September 2006 to the plaintiff or their counsel, BOB OMEGA & CO. No. 44 France Road, Kano, Kano State of Nigeria and file the Union Bank of Nigeria Plc, Statement of accounts for the relevant periods in Court forthwith.
11. That the Deputy Chief Registrar of the Federal High Court Kano, Kano State of Nigeria is further ordered to close the

said designated Union Bank of Nigeria Plc account opened for the suit upon payments of the above-mentioned sums and transfer any outstanding sums and interest (if any) to any of the Federal High Court of Nigeria Bankers in Kano or Lagos.?
(Underlining theirs)

Appellants’ Counsel has complained that the first set of orders were made in contravention of the Sheriffs and Civil Process Act. Post judgment proceedings are regulated, he said, by this Act. By Order 4 Rule 1(2) of the Judgment (Enforcement) Rules, the Judgment of the Court is not enforceable until after three days. The trial Judge, however, “instantaneously” ordered that part of the judgment sum be released to the Judgment Creditor, contrary to the mandatory “shall” used in the Statute.

By the underlined portions, the trial Judge, he further complained, has conferred pecuniary benefit of the judgment on the Federal High Court, when it was not a party to the action and when it was the Court that tried the suit. Counsel asked that the said order be set aside for being a nullity.
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The 1st and 2nd Respondents’ Counsel, responding to these arguments, submitted that the

provisions of the Sheriffs and Civil Process Act are inapplicable in this case. The said Act, he submitted, is normally invoked by the Judgment Creditor if the Judgment Debtor defaults in satisfying the judgment debt, causing the Judgment Creditor to apply to the Court for the issuance of a Writ of Fifa as contemplated by Order 4 Rule 1(2) of the Judgment (Enforcement) Rules. In the instant case, the trial Court had already made an order for the sale or disposal of the fertilizer. The issue of empowering the Sheriff to levy execution did not thus arise. The Deputy Chief Registrar, having complied with this Order on 27th of September 2006 and lodged the proceeds of the sale of the fertilizer in that account pending the determination of the case, created an implied or resulting trust in which the Deputy Chief Registrar held the money in the bank in trust for the yet to be known successful party. The DCR of the Federal High Court Kano was thus not conferred with any beneficial interest in the money lodged in the Bank. The only way of discharging this Resulting Trust was the order made by the Trial Judge on conclusion of the case.
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From the Record of Appeal at

Pages 434-435, the Order made by the trial Judge on 27th September 2006 was consequent upon a Motion dated 11th July 2006 seeking for the following orders:
1) An order for sale of the remaining 5,000 metric tones of fertilizer imported by the 1st – 4th Defendants in the name of the 3rd Defendant now stored in the premises/warehouse of Selcon Tannery Limited, Plot 58 Challawa Industrial Layout Kano and proceeds therefrom lodged or paid into an interest-yielding account of a reputable bank in the name of the Deputy Chief Registrar, Federal High Court, Kano.
Or in the alternative
An order to relocate the remaining 5,000 metric tones of fertilizer from the premises/warehouse of Selcon Tannery Limited, Plot 58 Challawa industrial Layout Kano to the warehouse of Akkad Group of Companies Head Office situate at Plot 104 – 105 Sharada Industrial Estate Phase II pending the hearing and determination of this case.
2) An order that the 5,000 metric tones of fertilizer be removed before the release of the 10,000 metric tones to the 3rd and 4th Defendants..
3) Such further order(s) which the Honourable Court may deem fit and proper to make in the

circumstances.

The reasons given in the affidavit, in support of the application, inter alia, were the acts of the Appellants in breaking the Court keys to the warehouse where the fertilizer was stored and the removal by them of the impounded fertilizer, with the likelihood of the evacuation by the Appellants of the remaining fertilizer, following the Court’s order for the release of 10,000 tonnes of fertilizer to the said Respondents. The balance of the fertilizer should be thus sold, to avoid its deterioration and illegal evacuation, and the proceeds kept in an interest yielding account for collection by the successful party at conclusion of trial.

The trial Judge, granting this application at Page 935 of the Record ordered as follows:
“That leave is hereby granted to the Plaintiffs/Appellants for sale of the remaining 5,000 metric tonnes of fertilizer imported by the 1st – 4th Defendants/Respondents in the name of the 3rd Defendant/Respondent now stored in the premises/warehouse of Selcon Tannery limited, Plot 58 Challawa Industrial Layout Kano and proceeds therefrom lodged or paid into an interest-yielding account of a reputable Bank in the

name of the Deputy Chief Registrar, Federal High Court, Kano pending the determination of this case.

The Judgment Enforcement Rules referred to by the Appellant’s Counsel, now Cap S6 of the Laws of the Federation 2010, provides as follows:
ORDER IV
ISSUE OF PROCESS
1. Period to elapse after judgment
(1) No writ of possession shall be issued until after the expiration of the day on which the defendant is ordered to give possession of the land, or, if no day has been fixed by the Court for giving possession, until after the expiration of fourteen days from the day on which judgment is given.
(2) No other process shall, except by express leave of the Court, be issued until after the expiration of three days from the day on which judgment is given.
The definition of “Process” in Part 1 Rule 2 of the Judgment Enforcement Rules Supra is as follows:
“process” includes writ of interim attachment, warrant to arrest an absconding defendant, warrant to arrest a ship and judgment summons;

The order made by the trial Judge, I hold, is not a Writ of possession of landed property as contemplated in Order IV Rule 1(1)

of the Judgment Enforcement Rules, neither is it a “process” as contemplated in Order IV Rule 1(2), not being a writ of interim attachment, warrant to arrest an absconding Defendant or ship, or a judgment summons. The initial order for the sale of the fertilizer and payment to an interest yielding account in the name of the Deputy Chief Registrar pending the outcome of the case, was, on the contrary, an order under the authority donated to him by the Federal High Court Rules, to make preservative orders. The order, following the conclusion of the case, that the moneys in the said account be paid to the successful party, is an order consequent upon the judgment of the Court, I hold.

The further order made by the trial Judge, which the Appellants also complain of, that following payment to the successful 1st and 2nd Respondents and the closure of the said account, that a transfer (by the DCR) be effected of “any outstanding sums and interests if any” to any of the Federal High Court of Nigeria Bankers in Kano or Lagos”, I agree, is an erroneous order. As the Appellants’ Counsel has rightly observed, the Federal High Court was not a party to the case neither

was it the successful litigant. The proper order to have been made is that any balance, should be refunded to the Appellants and not to the Federal High Court.

This erroneous order, being ancillary cannot however impugn the substantive Judgment of the Court, for the law is that it is not every error made by the trial Court that will result in the reversal of its judgment but those that have caused a miscarriage of justice. See the case of Nguma v. A-G Imo State (2014) 7 NWLR Part 1405 Page 119 at 146 to 147 para A-B per M.D. Muhammad JSC; Ali v. State (2015) 10 NWLR part 1466 Page 1 at 29 Para F-H per Ogunbiyi JSC.

In conclusion on this issue, the trial Judge, while he was in error to have ordered the transfer of the balance outstanding and interest to any of the Federal High Courts, was acting within his powers, I hold, to order payment of the judgment sum into an interest yielding account at the Union Bank, in the name of the Chief Registrar, to await the successful litigant.

Having resolved the issues as I have above, this appeal succeeds in part. The award of 21% interest on the judgment sum at the Bank rate from August 2002 until final

liquidation, is hereby set aside.

Also set aside is the 11th Order made by the trial Judge that the Deputy Chief Registrar of the Federal High Court Kano, subsequent to closure of the designated Union Bank of Nigeria Plc account, should transfer any outstanding sums and interest to any of the Federal High Court Bankers in Kano or Lagos. This is substituted by an Order that, following the closure of the said account, any outstanding sums and interest, subsequent to payment of the Judgment debt, should be refunded to the Appellants.

Save as aforesaid, the judgment of the Federal High Court, Kano Division, delivered by Hon. Justice Adeniyi Ademola on 15th October 2007, is affirmed.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Oludotun Adefope-Okojie, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with and abide the conclusion reached and the final orders contained therein. I have nothing more to add.

AMINA AUDI WAMBAI, J.C.A.: I have read in draft the lead judgment of my learned

brother OLUDOTUN A. ADEFOPE-OKOJIE, JCA. He has proficiently considered and resolved the issues in this appeal. I only wish to add a word on the settled principle of law that parties are bound by the terms of an agreement freely entered into by them and the duty of the Court is simply to give effect to the agreement. See AMINU ISHOLA INV. LTD V. AFRIBANK NIG. PLC. (2013) 9 NWLR (pt. 1359) P. 380. A party to a contractual arrangement, who in his full senses entered, partook and benefitted from that arrangement cannot and will not be allowed to turn around and run away from obligation therefrom in the pre of illegality. In the instant case, the Appellant’s contention that the goods supplied to him were contraband and or seized by the Nigerian Custom was rightly rejected by the trial Court, the Appellant having failed to proof the existence of those facts, the contention cannot stand in law. See CHIDOKA v. FIRST CITY FINANCE COMPANY LTD (2013) 5 NWLR (Pt. 1346) P.144.

For this and the detailed reasons in the lead Judgment which I adopt as mine, I too, dismiss the appeal and affirm the Judgment of the Lower Court save for the award of 21% interest on the

Judgment sum which is hereby set aside.

Appearances

Seth Nixon with him, N. T. AzaiFor Appellant

AND

J. E. Chukwuemeka for 3rd & 4th RespondentsFor Respondent