GTI ASSET MANAGEMENT & TRUST LTD v. OYO STATE GOVERNMENT & ANOR (2022)

GTI ASSET MANAGEMENT & TRUST LTD v. OYO STATE GOVERNMENT & ANOR

(2022)LCN/16764(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, September 02, 2022

CA/IB/395/2020

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

GTI ASSET MANAGEMENT & TRUST LTD APPELANT(S)

And

1. OYO STATE GOVERNMENT 2. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, OYO STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A COURT CAN RAISE AN ISSUE SUO MOTU AND DECIDED ON IT WITHOUT HEARING THE PARTIES ON THE ISSUE RAISED

Ordinarily, the law is that it is wrong for a Court to raise an issue suo motu and proceed to decide it without hearing the parties on the issue so raised. See the cases of Madam Fumike Ojo-Osagie v. Sunday Adonri (1994) 6 NWLR (Pt. 349) 131; Okonkwo Okonji (Alias Warder) v. George Njokanma (1999) 14 NWLR (Pt. 638) 250; Yekini A. Abbas v. Olatunji Solomon (2001) 15 NWLR (Pt. 735) 144 and Lamulatu Shasi & Anor v. Madam Shadia Smith & Ors. (2010) 18 NWLR (Pt. 1173) 330.

It should be noted that a Court of law is allowed or permitted to draw inferences from evidence on record, such as documents. The inferences so drawn by the Court are not regarded as raising issues suo motu. See Brig. Gen. O. B. Olorunkunle (Rtd.) v. Alhaji Abayomi Shakirudeen Adigun (2012) 6 NWLR (Pt. 1297) 407 and Chief S. O. Adedayo v. Peoples Democratic Party (2013) 17 NWLR (Pt. 1382) 1. PER ADUMEIN, J.C.A.

INSTANCES WHERE A COURT CAN RAISE AN ISSUE SUO MOTU

THE POSITION OF A CROSS-APPEAL VIS-A-VIS AN APPEAL

Thus the position of a cross-appeal vis-a-vis an appeal has been held by the Supreme Court to be “akin to a counterclaim” and it is treated as “a distinct and an independent appeal”. See, for example, the cases of Hon. Minister, Federal Capital Territory v. Kaydee Ventures Ltd. (2001) 4 NWLR (Pt. 703) 421; Sabrue Motors Nig. Ltd. v. Rajab Enterprises Nig. Ltd. (2002) 7 NWLR (Pt. 766) 243; Maersk Line v. Addie Investment Ltd. (2002) 11 NWLR (Pt. 778) 317 and Owners of The MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182. In the case of Unity Bank Plc & Anor v. Mr. Edward Bouari (2008) 7 NWLR (Pt. 1086) 372 at 413, per Niki Tobi, JSC; the Supreme Court, on the relationship between a cross-appeal and an appeal, held that:
(i) a cross-appeal is an independent appeal, with a life of its own;
(ii) a cross-appeal may have some affinity with the main appeal, as they criss-cross;
(iii) there may be cases where the decision of the main appeal affects the cross-appeal and in fact disposes of the crux or fulcrum of the cross-appeal;
(iv) in a situation as above, it will be merely repetitive and will serve no useful purpose to consider the arguments raised in the cross-appeal; and
(v) in situations such as (iii) and (iv) above, to avoid repetition and superfluity, the cross-appeal may be dismissed summarily.

A fortiori, applying the principle that a cross-appeal may be summarily dismissed where the decision of the main appeal affects and disposes of the crux or fulcrum of the cross-appeal, a counterclaim may similarly be dismissed if the decision of the main claim has disposed of the essence or foundation of the counterclaim. PER ADUMEIN, J.C.A.

WHETHER OR NOT THE COURTS CAN DECIDE ON ACADEMIC ISSUES

To say the least, by the justified and sound decision on the motion for summary judgment, the appellant’s counterclaim had become a question of mere academic significance or relevance. And the law is settled that a Court of law engages in deciding only live issues and not academic claims, which will yield no utility to the contending parties. See the cases of Oyeneye v. Odugbesan (1972) 4 SC 244; Nkwocha v. Gov., Anambra State (1984) 1 SCNLR 634; Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 799; Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142; Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1; Senator Umaru Dahiru v. All Progressives Congress (2017) 4 NWLR (Pt. 1555) 248; Bashiru Popoola v. The State (2018) 10 NWLR (Pt. 1628) 485 and Prof. Rasheed Ijaodola v. University of Ilorin Governing Council (2018) 14 NWLR (Pt. 1638) 32. PER ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondents were the claimants in Suit No. I/508/2020 which they commenced by a writ of summons in the High Court of Oyo State, holden at Ibadan. In paragraph 20 of their statement of claim, the respondents sought the following relief:
“(A) An Order of the Court granting judgment against the Defendant in the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) being monetary value of outstanding Investment Portfolio Assets belonging to the 1st Claimant in the custody and under the management of the Defendant as at 31st December, 2018.
(B) Cost of this suit in the sum of N100 Million in favour of the Claimants against the Defendant”.

The appellant, as the defendant, entered a conditional appearance and filed a statement of defence and counterclaim.

On the 15th day of June, 2020 the respondents filed a motion on notice wherein they sought the following orders:
“(1) AN ORDER of this Honorable Court granting summary judgment against the Respondent in favour of the Applicants in the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) being liquidated money demand on the Investment Portfolio Assets belonging to the 1st Applicant under the management of the Respondent as at 31st day December, 2018 by virtue of Asset Management Agreement dated 4th April, 2018 which agreement has now terminated and which sum the Respondent has admitted.
(B) AN ORDER of this Honorable Court granting the sum of N100 Million (One Million Naira) against the Respondent in favour of the Applicants as cost of this suit”.

The motion for summary judgment was anchored on the following grounds:
“a. The 1st Applicant engaged the services of the Respondent to manage her Investment Portfolio Assets by virtue of Asset Management Agreement dated 4th April, 2018.
b. The Respondent in the course of managing the Investment Portfolio had sold part of the stock and the amount currently outstanding and due to the 1st Claimant as at 31st December, 2018 was N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo).
c. The Respondent by exhibits C and D admitted that the amount outstanding and due to the 1st Applicant from the Investment Portfolio Assets as at 31st December, 2018 was N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo).
d. The 1st Applicant through one of its agencies had terminated the Asset Management Agreement through exhibit B and demanded that the Respondent transferred the outstanding sum into the 1st Claimant’s bank account. The Respondent has refused to do so.
e. The Applicants have instituted an action for recovery of the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) from the Respondent under the summary judgment proceedings of the Rules of this Court.
f. The Applicants believe that this is a liquidated money demand and that the Respondent does not have any defence to this action having admitted liability in the sum being claimed in this suit.”

The said motion was supported with an affidavit of 27 paragraphs by which the respondents tendered exhibits “A”, “B”, “C” and “D”. It was further supported by a written address of the learned counsel for the respondents.

In response to the motion for summary judgment, the appellant filed a counter affidavit of 31 paragraphs, supported with a written address.

After hearing the respondents’ motion for summary judgment, the trial Court delivered a reserved judgment on the 14th day of October, 2020 whereby the application was granted. This appeal is against that judgment.

The appellant’s brief was filed on 20/11/2020 and in it, the following issues were identified for determination:
“a. Whether in the circumstances of this case, the lower Court was not wrong when it held that the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) is a liquidated money demand on the investment Portfolio Assets belonging to the Respondents and under the Management of the Appellant. (Distilled from ground one of the Notice of Appeal).
b. Whether the judgment of the lower Court did not amount to a breach of the Appellant’s right to fair hearing when in the determination of the Respondents’ Motion for Summary Judgment, His Lordship, without jurisdiction, dismissed the Appellant’s Counter-Claim in breach of the Appellant’s fundamental right to fair hearing. (Distilled from grounds two and three of the Notice of Appeal).
c. Whether the learned trial Judge did not err in law when in the determination of the Respondents’ Motion for Summary Judgment, His Lordship awarded the sum of N100,000 (One Hundred Thousand Naira) to the Respondents as cost of the suit. (Distilled from ground four of the Notice of Appeal).
d. Whether the learned trial Judge misdirected himself in law when His Lordship held that Exhibit B tendered by the Respondents does not amount to a forceful termination or pre-duration liquidation of the investment within the contemplation of Clause 4 of Exhibit A and thereby occasioned a miscarriage of justice. (distilled from ground five of the Notice of Appeal)”.

In the respondents’ brief, filed on 17/06/2021 but deemed as filed on 31/05/2022, four issues were also raised but couched as follows:
“ISSUE ONE
Having regard to the Appellant’s documents marked as exhibits C and D at the lower Court whether the lower Court was not right to have held that this suit qualified as liquidated money demand. (Ground 1 of the Notice of Appeal).
ISSUE TWO
Whether filing of counter claim is not antithetical to the intendment and purpose of the provision of summary judgment as provided under Order 11 of the High Court Rules of Oyo State and whether the counter claim wrongly filed in this instance was not properly dismissed by the lower Court. (Grounds 2 and 3 of the notice of appeal).
ISSUE THREE
Whether cost does not follow event at the discretion of the Court.
ISSUE FOUR
Whether the learned trial Judge did misdirect himself in law when His Lordship held that exhibit B did not amount to a forceful termination or pre-duration liquidation of the investment within the contemplation of clause 4 of exhibit A.”

The issues raised by both the appellant and the respondents are essentially the same and I adopt them to determine the appeal, subject to some adjustments in their framing. I will also determine them in the order I deem fit.

The first issue identified by the parties is:
Whether or not the respondents’ claim qualified as a liquidated money demand.

O. O. Adeleye, Esq., learned counsel who signed the appellant’s brief, referred to the case of Abuja Capital Motors Ltd. v. Aliyu (2017) LPELR–42865 (CA) and submitted that:
“It is trite law that the grant of an application for Summary Judgment rests heavily on an Applicant satisfying the Court that what is being demanded is a liquidated money sum. A liquidated money demand does not require anything to determine the Respondent’s liability to the debt; the sum must be specific and ascertainable. Where the Court needs to consider other factors to ascertain the correct figures in contention, then the Court must set the matter down for a full trial for Parties to prove their claims and or counterclaims”.

In urging the Court to resolve this issue in the appellant’s favour, learned counsel contended, inter alia, as follows:
“My Lords, in the case before the lower Court, the amount claimed by the Respondents was not physical cash but the monetary value of investments in shares/stocks, mutual funds, FGN bonds and corporate bonds, real estate investment trusts, treasury bills, Eurobonds and other investment notes or bills, which value was as at December 31st, 2018. My Lords, we submit that this investment value even though in the sum claimed by the Respondents is not a value that is static or ascertainable by mere arithmetic calculation. It is a settled point which should not admit of any debate that the value of such investment as now claimed is subject to fluctuations and the vagaries of market forces. It is with the greatest respect not an amount that can be ascertained by calculation of fixed by any scale or charges or other positive data but that which can only be determined upon evidence led as to the current market value. My Lords, we respectfully submit that the case before the lower Court did not satisfy the conditions spelt out by this Honorable Court in the foregoing decision. The amount due to the Respondents in this case is one that is dependent on the prevailing or current value of the stock/asset being managed by the Appellant and same is determined by the vagaries and fluctuations in the stock market for which evidence must be led before the Court can make a positive findings of fact to support the grant of the relief sought. We submit that this is not a sum that is immediately ascertainable as same is dependent on the value of the stock at each point in time. The lower Court failed to consider this point in arriving at the decision to grant the relief sought under the summary judgment procedure as liquidated money demand, my Lords, we submit with the greatest respect that the lower Court is wrong and we urge your Lordships to so hold.
3.3. My Lords, we respectfully invite this Court to take judicial notice of the fact that the stock market and other similar investment is a volatile, complex, interrelated system of large and small investors making uncoordinated decisions with a continuous up and down movement. The volatility of the market is inevitable and this is characterized by wide price fluctuations and heavy trading within a short period of time
3.4 From the above nature of stocks, it is clear that a claim based on the value of stocks is not one to be ventilated under the Summary Judgment procedure given that the value of stocks is subject to many factors including macroeconomic factors which must be established by evidence. It is therefore wrong, respectfully, for the learned trial Judge to have found in favour of the Respondents that their claim was qualified to be ventilated under the Summary Judgment Procedure.
3.5 Assuming, although that is not the case, that the sum in issue is indeed ascertainable as amounting to N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty-Four Kobo), we respectfully submit and forcefully contend that the forceful or pre-duration liquidation of the agreement before the expiration of a period of two years certain has contractual implication of a reduction or forfeiture of twenty percent of the investment portfolio by the Claimant. This is in line with Clause 4 of the Asset Management Agreement providing on cancellation of Agreement.”

Oluseye Diyan, Esq., learned counsel who settled the respondents’ brief, relied on Order 11 of the High Court of Oyo State (Civil Procedure) Rules, 2010 and urged that it “confers discretion on the trial Judge to determine if an action qualified as liquidated money demand” and that, in this case, the trial Court properly exercised its discretion. On the meaning and procedure for summary judgment, learned counsel cited and relied on the cases of UBA PLC & Ors. v. Jargaba & Ors. (2007) 31 NSCQR 144; Thor Ltd. V. FCMB Ltd. (2005) LPELR–3242 (SC); Nishizawa Ltd. v. Jethwani (1984) 12 SC 234; Macaulay v. NAL Merchant Bank (1990) 4 NWLR (Pt. 144) 283 and Nasco Town Plc. v. Nwabueze (2014) LPELR – 22526 (CA).

Learned counsel urged the Court to resolve this issue against the appellant by submitting, inter alia, that:
“… the respondents’ claim before the lower Court was no doubt a liquidated money demand, this is because it can be ascertained at least from the admission of the appellant as contained in exhibits C and D.”

The respondents’ motion on notice for summary judgment was brought pursuant to the provisions of Order 11 Rules 1 and 5(2) of the High Court of Oyo State (Civil Procedure) Rules, 2010 which provide, respectively, as follows:
“Order 11 rule 1
Where a claimant believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written brief in respect thereof.”
“Order 11 Rule 5(2)
Where it appears to a Judge that the defendant has no good defence the Judge may thereupon enter judgment for a claimant.”

The provisions of Order 11 Rules 1 and 5(2) of the Civil Procedure Rules of Oyo State., 2010 are clear, plain and unambiguous. And it is an elementary principle of law that in interpreting a Constitution, contract, document, legislation or statute the words used therein should be attached their ordinary grammatical and natural meanings, if the words used by the makers are clear, plain, straightforward and unambiguous, unless such approach would lead to an absurdity. See the cases of Ahmed v. Kassim (1958) 3 FSC 51; (1958) 2 SCNLR 28; Yerokun v. Adeleke (1960) 5 FSC 126; (1960) SCNLR 267; Nafiu Rabiu v. The State (No. 2) (1981) 2 NCLR 293; Fred Egbe v. M. D. Yusuf (1992) All NLR 62; (1992) 6 NWLR (Pt. 245) 1; Wahab Aighotosho Sifuola Olanrewaju v. The Governor of Oyo State (1992) 9 NWLR (Pt. 265) 335; Josiah Ayodele Adetayo & Ors. v. Kunle Ademola & Ors. (20100 15 NWLR (Pt. 1215) 169 and Attorney-General of the Federation v. Attorney General of Lagos State (2013) 16 NWLR (Pt. 1380) 249.

By the provisions of Order 11 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules, 2010 the claimant has to:
(i) show that he believes that the defendant has no defence to his claim;
(ii) file his originating process (such as his writ of summons) with the following processes:
(a) his statement of claim;
(b) the written depositions (or statements on oath) of his witnesses; and
(c) copies of the exhibits he would rely on.
(iii) Upon fulfilling the above conditions, the claimant may file an application (a motion) for summary judgment and which application must state the grounds for his belief (that the defendant has no defence to his claim) and the application should be further supported with an affidavit and a written address or brief.

In this case, the respondents’ originating process – writ of summons is on pages 1 and 2 of the record of appeal. There are also the following processes:
(1) Statement of claim, which spans pages 3 to 7 of the record;
(2) Written statement on oath – pages 8 to 12 of the record
(3) List of documents – page 13;
(4) List of witnesses – page 14;
(5) Annexures (Exhibits) 1, 2, 3 and 4 – pages 15 – 26 of the record of appeal
(6) Motion on notice for summary judgment, which contains the relief and grounds, reproduced earlier in this judgment, and which was duly supported with an affidavit of 27 paragraphs, exhibits and a written address/brief – all spanning pages 39 to 68 of the record of appeal.

As can be gleaned from the record of appeal, the respondents fully complied with the provisions of Order 11 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules, 2010.

The record shows that the appellant duly reacted or responded to the respondents’ application for summary judgment. The appellant’s counter affidavit and written address in opposition to the application for summary judgment cover pages 125 to 143 of the record of appeal.

The record of appeal reveals that the respondents’ application for summary judgment was heard by the trial Court on the 7th day of September, 2020 and “ruling/judgment” was reserved – see pages 225 to 229 of the record. And, as stated earlier, judgment was rendered on the 14th day of October, 2020 and the judgment is from pages 232 to 259 of the record. The question that arises now is whether or not the learned trial Judge, Hon. Justice I. S. Yerima, rightly exercised his discretion under Order 11 Rule 5(2) of the High Court of Oyo State (Civil Procedure) Rules, 2010 by entering judgment in favour of the respondents.

The appellant’s main complaint is that the sum claimed by the respondents and granted by the trial Court was not “a liquidated money demand” and, therefore, the Court erred in granting it.

The question that should be answered in this appeal is whether or not the amount of money claimed by the respondents in the trial Court was “liquidated”.

“Liquidated” has been defined and explained by the learned authors/editors of Black’s Law Dictionary, Deluxe Ninth Edition, page 1015, as follows:
“1. (Of an amount or debt) settled or determined, especially by agreement.
2. (Of an asset or assets) converted into cash.”
Therefore, “liquidated amount” means:
“A figure readily computed, based on an agreement’s terms”. The term “liquidated claim” has been defined or explained as follows: “A claim for an amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties’ agreement.”
See page 282 of Black’s Law Dictionary, Deluxe Ninth Edition.
Thus, our Courts have held in the following cases, amongst others, inter alia, that:
“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be “liquidated” or made clear”. – Per Iguh, JSC, in Dr. Oladipo Maja v. Mr. Costa Samouris (2002) 7 NWLR (Pt. 765) 78 at 102– Per Ubaezonu, JCA; in Iron Products Limited vs. Sentinel Assurance Co. Limited (1992) 4 NWLR (Pt. 238) at 746
“A liquidated claim or demand may be defined as a claim or demand in which the amount is fixed, or has been agreed upon or is capable of ascertainment by mathematical computation or operation of law – per Black’s Law Dictionary”.
See also the case of Alhaji Muktari Uba & Sons Ltd & Anor. v. Lion Bank of Nigeria Plc. (2006) 2 NWLR (Pt. 964) 288 at 296, per Abubakar Abdulkadir Jega, JCA.
From the judicial and legal authorities available to me, I am of the opinion that any claim for the following would qualify as a liquidated money demand:
(a) an amount settled by the agreement of the parties;
(b) asset/assets converted into cash;
(c) an amount ascertained or ascertainable by a mere arithmetical or mathematical calculation;
(d) an amount ascertainable or fixed by a recognized scale of charges or other positive data;
(e) an amount ascertainable or discernible by operation of law; and
(f) an amount previously admitted by the defendant.

The affidavit in support of the respondents’ application for summary judgment was deposed to by one Adetayo Adeyemi, Director of Finance and Accounts, Oyo State Investment and Pubic Private Partnership Agency (OYSIPA) of Oyo State Government, who deposed in paragraphs 3 to 25 of the said affidavit that:
“(3) My Office is one of the agencies under the office of the Executive Governor of Oyo State and it is the agency in charge of Investment and Public Private Partnership in the State.
(4) I am aware that the Respondent entered into Asset Management Agreement with the 1st Applicant dated 4th April, 2018 which agreement was to last for 2 years. A copy of the agreement is hereby attached as Exhibit A.
(5) By virtue of Exhibit A, the Respondent was to manage the Investment Portfolio Assets of the 1st Applicant to boost the Internally Generated Revenue of the 1st Applicant.
(6) At the end of the Management Agreement or consequent upon cancellation of the agreement, the Respondent is to refund to the 1st Applicant, the monetary value of the Investment under her management and custody.
(7) As at 31st December, 2018, the total amount under the Management of the Respondent belonging to the 1st Applicant was N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo. This said fund has been and it is still in the custody of the Respondent till date.
(8) The 1st Applicant through the Office of Oyo State Investment and Public Private Partnership Agency had terminated the agreement in exhibit A and demanded from the Respondent, the release of the Investment funds to the 1st Applicant. The Respondent has refused to do so till date. A copy of the letter of demand and termination of the management agreement from Oyo State Investment and Public Partnership Agency (OYSIPA) dated 9th March, 2020 is here attached as Exhibit B.
(9) I am aware that the amount in question is the value of the 1st Applicant Portfolio Investment Assts with the Respondent as at 31st December, 2018. Copies of the letter bearing testimony to this fact issued by the Respondent dated April 30th, 2019 and April 6th, 2020 are here attached as Exhibit C and D.
(10) I am also aware that said amount is a liquidated sum and it is one of the Internally Generated Revenue efforts of the 1st Applicant. It is part of the funds being used to run the machinery of Government which include payment of civil servants’ salary, payment of overhead expenses, execution of Capital projects, provision of security services etc.
(11) The Asset Management Agreement – Exhibit A had been terminated by the 1st Applicant by a letter dated 9th March, 2020 – Exhibit B and the 3rd (three) months’ notice to the Respondent provided in Exhibit A expired on 9th June, 2020 yet, the Respondent has refused till date to transfer the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) to the 1st Applicant.
(12) The unlawful retention of the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) by the Respondent is affecting smooth running of the machinery of government especially in the rendition of critical services to the people of Oyo State. Whereas, the Respondent had earned her professional fee in the multiple of Millions of Naira from the 1st Applicant in respect of the transaction.
(13) Under Exhibit A, the Respondent is to manage the Investment Portfolio Assets of the 1st Applicant from the date of the said agreement which was 4th April, 2018. The duration of the contract in exhibit A is as stated in item 4 page 2 of Exhibit A. Under the said item titled “cancellation of Agreement” either parties have the right to terminate the contract by giving three (3) Months’ period of notice to the other party provided that no notice of cancellation could be issued earlier than 2 years from the take off of the agreement i.e. Exhibit A.
(14) Consequent upon the cancellation of Exhibit A, the Respondent is to refund to the 1st Applicant the monetary value of the Investment under her management and or in her custody which was N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) as at 31st December, 2018.
(15) The agreement between the parties in Annexure 1 had expired since 4th April, 2020 and the 1st Applicant has not renewed the contract thereafter. Indeed, the 1st Applicant has not renewed the contract thereafter. Indeed, the 1st Applicant through the Office of the Director General, Oyo State Investment and Public Private Partnership Agency issued exhibit B terminating the Asset Management Agreement i.e. Exhibit A. Paragraph 4 page 2 of the said Exhibit B is very germane.
(16) By the contents of Exhibits C and D the Respondent admitted that the outstanding value of Oyo State Investment Portfolio Assets under her management as at 31st December, 2018 was N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo).
(17) Oluseye Diyan Esq. the lead Counsel representing the Applicants in this matter informed me on 10th June, 2020 in his Office, situate at the 3rd Floor Basco House, Adamasingba, Ibadan at 12.30 p.m and I verily believe him that the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) is a liquidated money demand which the Respondent has admitted by virtue of Exhibits C and D above. The Respondent therefore has no defence to this suit.
(18) I urge the Court to grant judgment against the Respondent in the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) being admitted monetary value of the outstanding Investment Portfolio Assets belonging to the 1st Applicant in the custody of the Respondent as at 31st December, 2018.
(19) I also urge the Court to award the sum of N100 Million (One Hundred Million Naira) in favour of the Applicants against the Respondent as the cost of this suit.
(20) I know that the Appellants had to engage the services of external Solicitor to press the recovery of this claim at a great cost, since the Respondent has refused to transfer the said sum into an account provided for that purpose.
(21) It was the refusal of the Respondent to refund the said Investment fund to the 1st Applicant that compelled the Appellants to embark on the ordinarily unnecessarily expenses and cost of recovery, by resort to litigation to press this claim against the Respondent.
(22) The Applicants are embarking on this litigation to recover the Investigation Portfolio Asset fund belonging to the 1st Applicant at a great cost, even after the Respondent has earned her professional fee from the 1st Applicant in multiple of millions of naira.
(23) I am convinced that the Applicants are entitled to recover the expenses they are compelled to incur in filing this action consequence upon the recalcitrance of the Respondent to do the needful by releasing to the 1st Appellant the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) without any ado.
(24) I know that the cost of bring this action including the cost of hiring external Solicitors runs into multiple of millions consequently, the cost of N100 million naira being claimed in this suit will barely accommodate the enormous cost that was foisted on the Applicants by the Respondent.
(25) I also know that the provision of essential services by the 1st Applicant have been hampered due to the refusal of the Respondent to release to the 1st Applicant the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) which fund is the right of the 1st Applicant anyway.”

The appellant’s counter affidavit, in opposition to the application for summary judgment, was sworn to by one Ifeanyi Nwokolo, a legal practitioner in the law firm of Aina Blankson, LP (solicitors and counsel to the appellant). The said counter affidavit covers pages 125 of the record of appeal. By the way of an obiter, the preamble and paragraphs 1, 2 and 3 of the said counter affidavit are quite revealing and they are hereby reproduced:
“I Ifeanyi Nwokolo, Adult, Male, Christian, Nigerian, Legal Practitioner of Aina Blankson, LP of 5/7 Ademola Street, South West Ikoyi, Lagos State, do hereby make Oath and state as follows:
1. That I am a Legal Practitioner in the Law Firm of Aina Blankson, LP of 5/7 Ademola Street, South-West Ikoyi, Lagos, a Firm of Legal Practitioners representing the Defendant/Respondent in this proceedings by virtue of which fact I am very conversant with all the facts relevant to this matter to which I now depose.
2. That I have the consent of the Defendant and the authority of my employers to depose to this Affidavit.
3. That except where expressly stated, all facts deposed to herewith are facts within my knowledge same having come to my knowledge from the documents made available to me by the Applicant as well as information brought to my attention”.

To say the least, the depositions in the counter affidavit are not only evasive, as they did not directly provide any answers to the clear and direct depositions of facts in the respondents’ affidavit. Also, the deponent, who is neither an employee, a director of the appellant company nor the author of exhibits “C” and “D” tendered by the respondents, did not comply with the provisions of Section 115 sub-sections (3) and (4) of the Evidence Act, 2011 which provide thus:
“115 (1) …
(2) …
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.”
The deponent – Ifeanyi Nwokolo, Esq; who stated that he deposed to facts “from the documents made available to me by” the appellant “as well as information brought to my attention” ought to have proceeded to state the following:
(a) the name of his informant, from whom the facts deposed to were received;
(b) the particulars of his informant, the time, place and other reasonable circumstances of the information; and
(c) the facts and circumstances which grounded his belief in the information supplied to him.
Having regard to the circumstances under which the counter-affidavit was deposed, the depositions therein ought to have been received with circumspection and treated as hearsay counter-affidavit evidence. Such hearsay affidavit is not relevant to judicial proceedings of the nature of the respondents’ application for summary judgment.

In any case, the trial Court stated and held, on pages 246 to 248 of the record of appeal, as follows:
“Before going into the merits of this application, there is an issue I would resolve, which is an objection raised by the Claimant/Applicant’s Counsel. He submitted that the deponent to the Defendant/Respondent’s Counter-affidavit is a Legal Practitioner and not a party to this suit; that he failed to mention the name of the person who informed him of the facts contained in the affidavit therefore offending Sections 31 or 37 and 115[3] of the Evidence Act. Aforementioned Section 37 of the Evidence Act states:
“Hearsay means a statement-
a) Oral or written made otherwise than by a witness in a proceeding; or
b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”
Section 115[3] of the Evidence Act provides that:-
… When a person deposes to his belief in any matter of act and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief”.
The Applicant’s Counsel submitted that the deponent to the Respondent’s Counter-affidavit does not have authority or knowledge of the facts to enable him to depose to same. He also submitted that, the deponent did not state the name of the person who informed him of the facts. I have examined paragraph 3 of the Counter-affidavit and it clearly states that the deponent has the consent of the Defendant/Respondent to depose to the affidavit. It is an agreed fact that the Respondent is a Limited Liability company, so it is not necessary that the deponent of the Counter-affidavit state a name as the Defendant. The content of paragraph 3 and the Counter-affidavit as a whole does not offend Sections 37 and 115[3] of the Evidence act. Having so held, the Counter-affidavit of the Respondent dated and filed the 3rd of August 2020 is not defective, and the Appellant’s objection is hereby overruled”.

There is no appeal against the above decision of the trial Court and the law presumes that the decision has been accepted by the parties, as correct, and it is binding on them and the Court. See Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Standard (Nigeria) Engineering Co. Ltd v. Nigerian Bank for Commerce and Industry (2006) 43 WRN 47; Madam Adunola Adejumo v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Wike E. Nyesom v. Dakuku A. Peterside (2016) 1 NWLR (Pt. 1492) 71 and Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria (2018) 10 NWLR (Pt. 1627) 320.

I will say nothing more about the competence or relevance of the appellant’s counter affidavit.

The trial Court, in its judgment, found as follows:
“By paragraph 7 of the Claimant/Applicant’s affidavit, the total amount under the management of the Respondent belonging to the 1st Applicant is N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) as at the 31st of December 2018. He averred that the above sum was admitted by the Respondent through the content of Exhibits C and D. Exhibit C is a letter written by the Respondents on the 30th of April 2019 and confirms the status of the 1st Applicant’s portfolio as at the 31st of December 2018. It specifically states the value of Assets Under GTI Management as N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo). Exhibit D also is a letter written by the Respondent and dated the 6th of April 2020. Upon close examination of the content of the letter, the second paragraph is on admission of the monetary sum due, and plans by the Respondent to pay the sum instalmentally it states that:-
“… we hereby offer to have the outstanding sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo) paid in the following…..”
The Respondent sets out three instalmental sums which come to the total of the monetary sum being claimed by the Claimant. I find Exhibit C to be a letter of confirmation, while Exhibit D. is an outright admission even expressing intention to make payment. Exhibit D also states the exact amount being claimed by the Applicant. The monetary value in this case is specific, ascertainable and has been admitted as required for it to be categorized as a liquidated money demand. The facts are crystal clear that the monetary sum being claimed by the Claimant is a liquidated money demand which can be resolved under the Summary Judgment Procedure”.

I have carefully read the processes filed and exchanged between the parties; their affidavits (respondents’ affidavit and the appellant’s counter affidavit) including the exhibits and the judgment of the trial Court.

By the appellant’s pre-action correspondence – exhibit “D”, the letter dated April 6th, 2020 which was signed by Abubakar Lawal (Group Managing Director) and Boye Adegbemi (Finance Director) and addressed to the respondents, the appellant wrote as follows:
“RE: OYO STATE PORTFOLIO MANAGEMENT
We wish to express our appreciation to you and the Honourable Commissioner for Finance, Mr. Akinola Ojo for the meeting of March 24th, 2020 held in the office of the Honourable Attorney General, Prof. Oyelowo Oyewo towards resolving the issues in respect of the above captioned subject.
Having carefully followed the laudable initiatives of the Executive Governor of Oyo State, His Excellency Engr. Seyi Makinde towards improving the overall infrastructure of the State and the lives of the citizens, we applaud the administration and remain committed to support the government. To this end, even though we were unable to resolve the precise closure date for the portfolio management transaction, we hereby offer to have the outstanding sum of N1,277,847,756.44 paid in the following instalments:
S/N PROPOSED DATED OF PAYMENT AMOUNT (=N=)
1. Friday, July 31st, 2020 200,000,000.00
2. Friday, October 30th, 2020 500,000,000.00
3. Friday, February 26th, 2021 577,847,756.44
Total 1,277,847,756.44
While we most certainly appreciate the immediate financial needs of the government it is important to kindly understand the pathetic impact of the global pandemic on the Nigerian economy and most especial the capital market.
Once again we thank you and hereby extend the assurances of our best regards.
Yours faithfully,
For: GTI Asset Management & Trust Limited”.

By exhibit “D”, the appellant clearly admitted liability for payment of the sum of N1,277,847,756.44 as “debitum in diem” – “a debt payable at a future date”, to the respondents. Therefore, the respondents’ claim unequivocally qualified as a liquidated money demand, as it was ascertained and agreed by the appellant, then defendant, even before the respondents’ claim was initiated in the trial Court. The respondents’ assets being managed by the appellant had, by the appellant itself, been converted to the sum eventually claimed by the respondents.

It is for the foregoing reasons that I hereby resolve this issue in favour of the respondents and against the appellant.

ISSUE 2
The second issue which directly flows from the first issue determined above is:
Whether or not the trial Court erred in awarding the sum of N100,000.00 as costs in favour of the respondents in its summary judgment.

I have read the arguments as contained in paragraphs 3.20 to 3.25 of the appellant’s brief and paragraphs 6.00 to 6.09 of the respondents’ brief. I have also read the judgment of the trial Court, especially where the Court stated as follows:
“The second issue relied on sought by the Applicant is “an order of this Honourable Court granting the sum of N100,000.00 (one Hundred Million Naira) against the Respondent in favour of the Applicant as cost of this suit.
The Applicant’s Counsel submitted that the Applicants incurred cost during the pendency of this suit; from the filing of processes to appearances made and engaging the services of an external solicitor. In the case of UBA Vs. Prima Impex (Nig) Ltd. & Ors. (2017) LPELR-42015 (CA) at page 30 paras E-G, Awotoye J.CA. stated as follows:
“The object of awarding costs is not to punish the Judgment Debtor but to serve as an indemnity to compensate a successful party for such expenses as cost of filing the action and Court attendance. See Olasope Vs. N.B.N. (1975) 5 NWLR (Pt. 11) 147.”
Also in Emori Vs. Egwu & Anor. (2016) LPELR-40123 (CA) at page 19 paras E-F, Elechi, JCA stated thus:-
“Costs are awarded for the purpose of meeting the legitimate expenses of the successful party, either, wholly or partially as the Court sees it, see Adebiyi Vs. Layinke and Anor. (2002) 98 LRCN 1139, C.C.B. Nig. Plc. Vs. Okpala (1997) 8 NWLR (Pt. 518) 673.”
See also the cases of:
1. Akamnonu & Anor. Vs. Ibenye (2016) LPELR-41023 (CA) at page 18-22 paras C-A per Agim, JCA.
2. Obono & Anor. Vs. Mr. Ubi Ubi Obono (2016) LPELR-41198 (CA) at pages 17-19 at paras E-A, per Saulawa, JCA.
The general rule is that costs follow events, which is also applicable in this case; and the Applicant is hereby awarded N100,000 (One Hundred Thousand Naira) only as cost against the Respondent”.

The trial Court was right in awarding costs in favour of the respondents, having found their application for summary judgment to be meritorious.

In a judicial contest, such as the one fought in the lower Court between the respondents and the appellant, it is customary for the Court to consider and award costs – the expenses of the litigation, in favour of one party and against the other. Since the respondents were victorious, they were entitled to costs. And the amount of costs awarded in favour of the respondents’ against the appellant is neither excessive nor unreasonable, rather it can be considered to be very lenient.

Without more, I also resolve this issue against the appellant and in favour of the respondents.

ISSUE 3
The third issue in line for the determination of this appeal is the fourth issue identified by the parties, which can be reframed to be:
Whether or not the trial Court misdirected itself in holding that exhibit “B” did not amount to a forceful termination or a pre-duration liquidation of the investment within the contemplation clause 4 of the exhibit “A”.

Exhibit “A” is an Asset Management Agreement made on the 4th day of April, 2018 between Oyo State Government (the 1st Respondent) and GTI Asset Management & Trust Limited (the appellant). Exhibit “B” is a letter by the 1st respondent dated 9th March, 2020 addressed to the appellant.

For ease of reference, I hereby reproduce exhibit “B” and it is as follows:
“FINAL DEMAND NOTICE ON THE TRANSFER OF OYSG INVESTMENT PORTFOLIO ASSETS
I write to confirm the position of Oyo State Government on the transfer of investment portfolio assets of Oyo State Government in your company’s custody, with reference to our letter of 12th February, 2020 and our subsequent telephone conversation of 9th March, 2020 on the subject matter (instructing the managing director on behalf of GTI, Honourable Commissioner for Justice, Honourable Commissioner for Finance and Director-General (OYSIPA on behalf of Oyo State).
2. Sequel to the expiration of the mandate issued to your company vide the letter of 20th February, 2020; we have the directive of His Excellency Governor Seyi Makinde to mandate your company to transfer Oyo State Government investment portfolio assets in your custody, unfailingly within forty-eight (48) hours, which terminates by close of business on Friday, 13th March, 2020. The transfers are to be made into Oyo State Government account details below:
Account name Oyo State Government Recovery Account
Account Number 0040889553
Bank Unity Bank
3. Contrary to your assertion in your letter of 19th February, 2020 in relation to the commencement and expiration of your professional asset management contract, the terms of engagement are clearly spelt out in the Asset Management Agreement. Our letter of 29th March, 2018 to the Central Securities Clearing System (copy attached) further lends credence to 20th February, 2018 as the effective date of appointment of your firm as portfolio managers for Oyo State Government.
4. As earlier communicated, you are required to provide comprehensive statement on the details of all financial transactions for the duration of your engagement as portfolio asset managers up to 20th February, 2020 when your contract expires, as the Government of Oyo State is not willing to renew your asset management contract.
5. Your compliance with paragraph 2 above within the timelines stipulated would be most appreciated
6. I thank you.
Hon. Segun Ogunwuyi
Director”

Clause 4 of exhibit “A” is follows:
“4. Cancellation of Agreement
OYSG has the right to terminate this agreement at any time by notifying the Asset Manager in writing and giving 3 (three) months period of notice. The Asset Manager may also cancel this agreement at any time via a written letter with 3 (three) months period of notice. However, any cancellation shall not be earlier than 2 (two) years from the take-off date of this agreement to allow for the Asset Manager to have sufficient time to properly reconstruct and professionally manage the recovered assets in a way that ensures steady growth for the State’s recovered assets and return/yield with minimum risk, PROVIDED the Asset Manager hereby guarantees that the value of the asset shall not diminish in any respect during the 2 (two) years period nor at anytime while under management. Consequent upon this, any forceful or pre-duration liquidation shall result in a deduction and forfeiture of 20% of the value of the investment portfolio.
The Asset Management authority under this agreement will remain in effect until ‘OYSG’ changes or terminates this agreement in writing.
Termination of this agreement will not affect:
(a) the validity of any action previously taken by the Asset Manager under this agreement,
(b) liabilities or obligations of OYSG or The Asset Manager from transactions initiated before termination of this agreement or OYSG’s obligation to pay due and outstanding advisory fees (pro-rated through the date of termination). Upon termination, the Asset Manager shall have no obligation to recommend or take any action with regard to the securities, cash or other investments in OYSG’s account”.

Exhibit “B” should be read as a whole and not its content read piecemeal and interpreted in isolation from the other parts thereof. Put differently, the law is settled and it is that in the construction of a document or an instrument, the document or instrument must be read and construed together. See the case of A. I. Wilson v. Attorney General of Bendel State & 2 Ors. (1985) 1 NWLR (Pt. 4) 572 at 601, per Obaseki, JSC; where the Supreme Court referred to some English cases and quoted as follows:
“The office of a good expositor of an Act of Parliament said Lord Coke in Lincoln College case (1595) 3 Co. Rep. 58B” is to make construction on all parts together and not of one part only by itself – Nemo enim aliquam partem recte illeligere protest antequam totum iterim perlegeril [for no one can rightly understand any part without perusing the whole again and again]”.
See also the cases of Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377; (1987) 7 SCNJ 98 and Unilife Dev. Co. Ltd v. Adeshigbin (2001) 4 NWLR (Pt. 704) 609.

When exhibit “B” is read and construed together, it is clear that it was written in response to previous telephone conversation and correspondence between the parties on the respondents’ investment portfolio being managed by the appellant – see paragraphs 1 and 3 of the letter.

In a similar vein, exhibit “A” should be read and construed together. Therefore, Clause 4 should not be read and interpreted in isolation from the other clauses and parts of the Asset Management Agreement. Thus, when one carefully reads Clause 1 of exhibit “A”, it is ex facie obvious that the effective date of appointment of the appellant, as the respondents’ asset manager, is not stated and what the respondents did by paragraph 3 of exhibit “B” was to assert that the effective date of appointment was “20th February, 2018”, even though the agreement was eventually made on the “4th day of April, 2018”. And by paragraph 4 of exhibit “B”, the respondents reminded the appellant that the contract between the parties, which was for a period of 2 (two) years, had already expired on “20th February, 2020”. On the records, there is nothing showing that the appellant disagreed with the assertions made in exhibit “B” by the respondents.

It is, in my opinion, good to state here that the public officers, who negotiated with the appellant and executed exhibit “A”, on behalf of the 1st respondent, should re-examine themselves, wherever they may be now. If the assets, which were the basis of the agreement (exhibit “A”), were their personal assets, would they have been so negligent in omitting the date of the appointment of the appellant as the asset manager? Anyone can guess an answer.

Public officers should be reminded that every public office is a trust and that they are trustees, holding public offices and property, for the benefit of the general public and they are not to treat public funds, assets, property, etc; as res nullius – things belonging to no one or owner.

The lackadaisical attitude of some public officers should not be condoned or encouraged, as such conduct, in most cases, leads to bleeding of public assets, goodwill and resources with dire consequences.

To say the least on this issue, exhibit “B”, tendered by the respondents; did not amount to a forceful termination or pre-duration liquidation of the investment, because, by the respondents’ understanding, as at the 9th day of March, 2020, when exhibit “B” was written the asset management agreement between the parties had already expired by effluxion of time.

For all the foregoing reasons, this issue is hereby resolved against the appellant.

ISSUE 4
The final issue in this appeal is the second issue identified by each of the parties and which is:
Whether or not the dismissal of the appellant’s counterclaim by the trial Court was without jurisdiction and in breach of the appellant’s right to fair hearing.
I have carefully read all the contending or opposing arguments on this issue.

It is true that the appellant filed a statement of defence in which it counterclaimed in paragraph 27 thereof as follows:
“27. WHEREOF the Defendant/Counter Claimant claims against the Claimant/Defendant to Counter-claim as follows:
a. A Declaration that the 1st Claimant/Defendant to the Counter Claim letter dated 9th March 2020 purportedly terminating the Assets Management Agreement dated 4th April, 2018 is in breach of the terms and conditions of the said Asset Management Agreement.
b. A Declaration that the 1st claimant/defendant to the Counter-Claim is liable to the reduction and forfeiture to the tune of twenty percent of the total value of portfolio investment which twenty percent forfeiture is in the sum of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-Seven Million, Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty Four Kobo).
c. AN ORDER for the payment of the total value of the investment portfolio less the twenty percent forfeiture in the sum of N255,569,551.29 (Two Hundred and Fifty-Five Million, Five Hundred and Sixty-Nine Thousand, Five Hundred and Fifty-One Naira, Twenty-Nine Kobo) only.
d. Cost of this action in the sum of N25,000,000.00 (Twenty-Five Million Naira).
ALTERNATIVELY
e. AN ORDER declaring the letter dated March 9th, 2020 purportedly seeking to terminate the Asset Management Agreement dated April 4th, 2018 as null and void.
f. AN ORDER that the Asset Management Agreement of April 4th. 2018 subsists until a valid termination notice is issued by the 1st Claimant after the expiration of the first two-year duration of the Agreement.
g. AN ORDER dismissing this suit in its entirety for lack of reasonable cause of action.
h. Cost of this action in the sum of N25,000,000.00 (Twenty-Five Million Naira)”.

It is also evident from the record of appeal that the respondents’ motion on notice for summary judgment was heard alone; that is, it was not heard together with the appellant’s counterclaim. It is clear that the appellant’s counterclaim was dismissed by the trial Court, in its judgment on the application for summary judgment, when the Court stated on pages 256 to 257 of the record, inter alia, that:
“I would also like to state that the respondent by their statement of defence also filed a counter-affidavit claimed (sic) against the claimant; which is premised on the breach of terms of the agreement by the applicant. This counterclaim is inherently questionable …
The defendants/respondents’ defence is hereby dismissed….”

On the face of the record of appeal, it would appear that the trial Court suo motu raised the issue of the appellant’s counterclaim and dismissed the counterclaim without hearing the parties on it. Ordinarily, the law is that it is wrong for a Court to raise an issue suo motu and proceed to decide it without hearing the parties on the issue so raised. See the cases of Madam Fumike Ojo-Osagie v. Sunday Adonri (1994) 6 NWLR (Pt. 349) 131; Okonkwo Okonji (Alias Warder) v. George Njokanma (1999) 14 NWLR (Pt. 638) 250; Yekini A. Abbas v. Olatunji Solomon (2001) 15 NWLR (Pt. 735) 144 and Lamulatu Shasi & Anor v. Madam Shadia Smith & Ors. (2010) 18 NWLR (Pt. 1173) 330.

It should be noted that a Court of law is allowed or permitted to draw inferences from evidence on record, such as documents. The inferences so drawn by the Court are not regarded as raising issues suo motu. See Brig. Gen. O. B. Olorunkunle (Rtd.) v. Alhaji Abayomi Shakirudeen Adigun (2012) 6 NWLR (Pt. 1297) 407 and Chief S. O. Adedayo v. Peoples Democratic Party (2013) 17 NWLR (Pt. 1382) 1.

It is, perhaps, important that I state here that the law outrightly recognizes instances where a Court can raise an issue suo motu and resolve it without the necessity to call upon the parties to address on it. The instances include the following:
1. where the issue relates to the jurisdiction of the Court;
2. where the parties ignored or were not aware of a statutory or constitutional provision; and
3. where looking at the record, a serious issue of unfairness of the proceedings is disclosed.
For the above three instances, see the cases of Sunday Gbagbarigha v. Mr. Adikumo Toruemi (2013) 6 NWLR (Pt. 1350) 289; Blessing Toyin Omokuwajo v. Federal Republic of Nigeria (2013) 9 NWLR (Pt. 1359) 300 and Mr. Ebenezer Oladimeji Adetula v. Mr. Philip Olusola Akinyosoye & 2 Ors. (2017) 6 NWLR (Pt. 1592) 492.
4. Where the issue is within the contemplation of the parties.
See John Babani Elias v. Federal Republic of Nigeria (2021) 16 NWLR (Pt. 1800) 595.

I agree that a counterclaim is a cross-action, with a life of its own. See Joseph Obi v. Biwater Shellabear Nig. Ltd. (1997) 1 NWLR (Pt. 484) 722 and Braimoh Babatunde Akinola v. Vice-Chancellor, University of Ilorin (2004) NWLR (Pt. 885) 616.

Thus the position of a cross-appeal vis-a-vis an appeal has been held by the Supreme Court to be “akin to a counterclaim” and it is treated as “a distinct and an independent appeal”. See, for example, the cases of Hon. Minister, Federal Capital Territory v. Kaydee Ventures Ltd. (2001) 4 NWLR (Pt. 703) 421; Sabrue Motors Nig. Ltd. v. Rajab Enterprises Nig. Ltd. (2002) 7 NWLR (Pt. 766) 243; Maersk Line v. Addie Investment Ltd. (2002) 11 NWLR (Pt. 778) 317 and Owners of The MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182. In the case of Unity Bank Plc & Anor v. Mr. Edward Bouari (2008) 7 NWLR (Pt. 1086) 372 at 413, per Niki Tobi, JSC; the Supreme Court, on the relationship between a cross-appeal and an appeal, held that:
(i) a cross-appeal is an independent appeal, with a life of its own;
(ii) a cross-appeal may have some affinity with the main appeal, as they criss-cross;
(iii) there may be cases where the decision of the main appeal affects the cross-appeal and in fact disposes of the crux or fulcrum of the cross-appeal;
(iv) in a situation as above, it will be merely repetitive and will serve no useful purpose to consider the arguments raised in the cross-appeal; and
(v) in situations such as (iii) and (iv) above, to avoid repetition and superfluity, the cross-appeal may be dismissed summarily.

A fortiori, applying the principle that a cross-appeal may be summarily dismissed where the decision of the main appeal affects and disposes of the crux or fulcrum of the cross-appeal, a counterclaim may similarly be dismissed if the decision of the main claim has disposed of the essence or foundation of the counterclaim.

The trial Court, in its decision on the application for summary judgment, found that the appellant admitted the respondents’ claim and proposed to pay the liquidated sum by or in “three instalmental sums which come to the total of the monetary sum being claimed by the claimant” (sic). The Court then proceeded to hold that the appellant’s “defence however is not ‘a real defence’ and raises no triable issues”; and that the appellant “is seeking or looking for ways to delay the payment due to the applicants”. The appellant has not faulted any of these findings by the trial Court.

In any case, the appellant’s defence and counterclaim, as set out in its statement of defence, are essentially the same as their defence to the respondents’ motion on notice for summary judgment, which is that by the respondents’ letter dated 9th March, 2020 (exhibit “B”) the respondents were in breach of the asset management agreement (exhibit “A”) between the parties. As demonstrated under Issue 3, resolved above, the respondents’ letter dated 9th March, 2020 and tendered as exhibit “B” did not terminate the agreement between the parties, because the agreement had by itself expired by effluxion of time, and it was not renewed nor renegotiated by the parties, before the said letter was written by the respondents.

It is clear that, from the decision of the application for summary judgment, the ‘umbilical cord’ of the appellant’s counterclaim was justifiably cut off and the counterclaim had fallen forlorn and was rendered otiose. Put differently, by the decision of the Court on the motion for summary judgment, the appellant’s counterclaim had become a fait accompli. Therefore, it would have amounted to a mere waste of the precious and limited time of the trial Court, and even the parties, for the appellant’s illusive counterclaim to be adjourned and heard, after judgment of the Court was delivered on the application for summary judgment.

The trial Court was roundly right when it held that the appellant’s counterclaim (or defence) was merely a ploy to delay payment of the sum of money due to the respondents. By exhibit “D”, the appellant admitted liability for the sum of N1,277,847,756.44 and volunteered to pay same, by three instalments, to the respondents by latest Friday, the 26th day of February, 2021.

It is very surprising that by the 9th day of June, 2022, when this appeal was heard, the appellant had not only failed to keep to its promise to fully liquidate the said sum but was still clinging to its deceitful and obnoxious counterclaim.

The word “contract” has multitudinous meanings and types. In its simplest meaning, which is applicable to this case, a “contract” is:
“An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.”
– Black’s Law Dictionary, Deluxe Ninth Edition, Page 365.

And the type of contract between the parties in this case can be described as a “written contract” – which is:
“A contract whose terms have been reduced to writing”.
– Page 375 of Black’s Law Dictionary, Deluxe Ninth Edition.

Some centuries ago, it was felt that a decision in one case of contract might not necessarily apply to another. See the case of Rhodes v. Forwood (1876) L. R. 1 Ap. Ca. 275, where Lord O’ Hagan held that:
“Judicial decision on one contract can rarely help us to the understanding of another”.
Therefore, every contract has to be construed and interpreted according to its own conditions and terms.
But one principle of law is settled and sure and it is that:
“There is a great principle which …. ought to be adhered to by this Court and by every Court where it can possibly do so; that is to say, that a man shall abide by his contracts, and that a man’s contracts should be enforced against him”.
– per Romer, J., in Biggs v. Hoddinott, Hoddinott v. Biggs (1898) L. R. 2 C.D. 313.
Whatever contract that parties enter into, fidelity is its most significant landmark. Thus, uberrima fides – utmost good faith, is ab initio an essential expectation from every party to a contract.
The appellant’s conduct, in respect of its indebtedness to the respondents, is highly condemnable as it is clearly contrary to the asset management contract uberrimae fidei. Utmost good faith by parties to a contract is one of the pillars upon which every concrete contract is erected. Therefore, parties must be committed and consistent in fulfilling their obligations and not be ambivalent or prevaricative. Parties to a contract, like King Herod Antipas (who, against all odds, fulfilled his promise to his niece/step-daughter for a consideration of a mere dazzling dance, on the occasion of his birthday celebration, even though the ultimate consequences were unquestionably unpalatable), should be honourable enough to religiously keep to promises they voluntarily make and to fulfill them.

To say the least, by the justified and sound decision on the motion for summary judgment, the appellant’s counterclaim had become a question of mere academic significance or relevance. And the law is settled that a Court of law engages in deciding only live issues and not academic claims, which will yield no utility to the contending parties. See the cases of Oyeneye v. Odugbesan (1972) 4 SC 244; Nkwocha v. Gov., Anambra State (1984) 1 SCNLR 634; Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 799; Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142; Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1; Senator Umaru Dahiru v. All Progressives Congress (2017) 4 NWLR (Pt. 1555) 248; Bashiru Popoola v. The State (2018) 10 NWLR (Pt. 1628) 485 and Prof. Rasheed Ijaodola v. University of Ilorin Governing Council (2018) 14 NWLR (Pt. 1638) 32.

Having regard to the facts and circumstances of this case, the trial Court was right to have summarily dismissed the appellant’s counterclaim in its judgment on the respondents’ application for summary judgment.
This issue is also resolved against the appellant.

CONCLUSION
Having resolved all the issues against the appellant, this appeal is grossly devoid of any merit and it is hereby dismissed.

The judgment of the trial Court in Suit No. I/508/2020 between: OYO STATE GOVERNMENT & ANOR. v. GTI ASSET MANAGEMENT AND TRUST LTD; delivered on the 14th day of October, 2020 per Hon. Justice I. S. Yerima is hereby affirmed, with the following consequential order:-
The appellant is hereby directed to pay forthwith to the respondents, the judgment debt of N1,277,847,756.44 (One Billion, Two Hundred and Seventy-seven Million Eight Hundred and Forty-Seven Thousand, Seven Hundred and Fifty-Six Naira, Forty-Four Kobo). The sum of N400,000.00 (Four Hundred Thousand Naira only) is hereby awarded as costs in favour of the respondents and against the appellant.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance, the judgment just delivered by my learned brother M. A. A. ADUMEIN, JCA and I agree with the reasoning and resolution arrived at in the leading judgment. My lord succinctly determined the issues donated for resolution in the appeal.

Let me for the sake of emphasis add my voice to an aspect of the case for the appellant when it submitted that the claim of the respondents was not a liquidated money demand.

A liquidated money demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ or made clear. Again, where the parties to a contract, as part of the agreement between them, fix the amount payable on the default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature of a genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement not obnoxious as to constitute a ‘penalty’ and it is payable by the party in default. The term is also applied to sums expressly made payable as liquidated damages under a statute, see MAJA V. SAMOURIS (2002) LPELR-1824(SC).

The apex Court in WEMA SECURITIES & FINANCE PLC V. NIGERIA AGRICULTURAL INSURANCE CORP (2015) LPELR-24833(SC) identified factors for determining a liquidated sum are as follows:
(a) The sum must be arithmetically ascertainable without further investigation.
(b) If it is in reference to a contract, the parties to same must have mutually and unequivocally agreed on a fixed amount payable on breach.
(c) The agreed and fixed amount must be known prior to the breach.
Flowing from other decisions of the apex Court which reiterated the definition of liquidated money demand, that it is in the nature of a debt. That is to say a specific sum of money due and payable under or by virtue of a contract. It is liquidated when the sums due are easily ascertained as in this case as held by RHODES-VIVOUR, J.C.A (as he then was) in EPE LOCAL GOVT V. KESHINRO & ORS (2008) LPELR-11882(CA).

By virtue of Exhibit C and D attached to the claim by the respondents, there was a clear and unequivocal admission of a specific amount due to the respondents and therefore the contention of the appellant that the claim was not a liquidated money demand cannot hold and must be discountenanced as was done by the trial Court. I agree with my learned brother that the appeal lacks merit and must be dismissed. I also dismiss the appeal and abide by the orders made in the leading judgment.

ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of a preview of the leading judgment just delivered by my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, JCA.

This appeal is against the summary judgment delivered by the trial Court (the High Court of Oyo State) on the 14th of October, 2020. Now, it is trite that for a claim to be dealt with under the summary judgment procedure, it must be one for a liquidated money demand. A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Thus, a liquidated claim is one which is ascertained or ascertainable by calculation or is fixed agreement of the parties or by any scale of charges or other positive data: WEMA SECURITIES & FINANCE PLC v NIGERIA AGRICULTURAL INSURANCE CORP. (2015) LPELR-24833(SC), per Fabiyi. JSC at page 75, paras. D – F; and MAJA v SAMOURIS (2002) LPELR-1824(SC), per Iguh, JSC at pages 21 — 22, paras. F — C.

The summary judgment procedure is therefore, one whose objective is to expeditiously dispose of cases which are virtually uncontested. Thus, in a claim brought under the summary judgment procedure, the claimant is required to file his originating process along with a statement of claim, written depositions of his witnesses, and the exhibits he intends to rely on, and accompany same with an application for summary judgment, which application shall be supported by an affidavit deposing as to the grounds for his belief that the defendant had no defence to the claim. See: Order 11 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules, 2010 which is the Rules applicable to the instant appeal, as well as the cases of EMCO & PARTNERS LTD & ORS v DORBEEN (NIG) LTD & ANOR (2017) LPELR-43453(CA), per Ogunwumiiue JCA (as he then was) at pages 28 — 32, paras. A – E; and UBAH & ANOR v FIDELITY BANK PLC (2013) LPELR-20657(CA), per Saulawa, JCA (as he then was) at pages 41 — 43, paras. B — A.

As succinctly espoused in the lead judgment of my Lord Adumein, JCA, the respondents had fulfilled the above requirements under the Rules by filing their Writ of Summons along with statement of claim, witness statement on oath and list of documents to be relied upon and accompanied same with a motion for summary judgment. Of note, is the depositions in the supporting affidavit to that motion wherein the respondents have, apart from showing that the sum claimed is clearly ascertained under the Asset Management Agreement between the parties, also stated in paragraphs 16 and 17 thereof that the appellant has admitted same and has no defence to the claim. Also instructive is the fact that the positive depositions in the respondents’ supporting affidavit were not effectively countered in the counter affidavit of the appellant.

By Rule 5(2) of the same Order 11 of the High Court of Oyo State (Civil Procedure) Rules, 2010, where a Judge is satisfied that the defendant has no good defence, the Judge may enter judgment for the claimant. As rightly observed in the leading judgment, the printed record of appeal shows the trial Court duly considered the originating processes and the affidavit evidence before it and rightly found that the appellant had in Exhibit D specifically admitted the sum of N1,277,847,756.44 claimed by the respondents, and even offered to pay same in three instalments.
It is trite that a defendant who has no real defence to a claim should not be allowed to frustrate the claimant and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the claim but at gaining time within which to continue to postpone meeting his obligation and indebtedness: IFEANYICHUKWU TRADING INVESTMENT VENTURES LTD & ANOR v ONYESOM COMMUNITY BANK LTD (2015) LPELR-24819(SC), per Ariwoola, JSC (as he then was — now A.G. CJN), at pages 39 — 40, paras. F — F; and KENFRANK (NIGERIA) LTD v UNION BANK OF NIGERIA PLC (2002) 15 NWLR (Pt 789) 46; and SANYAOLU v ADEKUNLE (2006) 7 NWLR (Pt 980) 551. In the instant case, it is evident that the trial Court had rightly entered summary judgment for the respondents against the appellant.

It is for the above and the fuller reasons eruditely stated in the leading judgment of my learned brother ADUMEIN, JCA, all of which I adopt as mine, that I also dismiss this appeal for lack of merit and abide by all the consequential orders made in the leading judgment.