MINAJ HOLDINGS LIMITED v. ASSET MANAGEMENT CORPORATION OF NIGERIA (2015)

MINAJ HOLDINGS LIMITED v. ASSET MANAGEMENT CORPORATION OF NIGERIA

(2015)LCN/7853(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of April, 2015

CA/L/114/2014

RATIO

CONTRACT: TERMS OF CONTRACT; WHETHER PARTIES TO A CONTRACT ARE BOUND BY THE TERMS

Parties to a contract are bound by the terms. It is settled law that parties to an agreement are bound by the terms and conditions of the contract they signed. See Isheno v. Julius Berger Nig. Plc (2008) 2-3 SC II pg. 78. See also Oladeji v. Nig. Breweries Plc (2007) LPELR-160 where Niki Tobi, JSC held as follows:
“where there is a contract regulating any arrangement between the parties, the main duty of the court is to interpret that contract to give effect to the wishes of the parties as expressed in the contract document.” per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: DUTY OF THE COURT: THE DUTY OF THE COURT TO INTERPRET AND ENFORCE THE TERMS OF THE CONTRACT AS AGREED BY THE PARTIES THERETO
The primary duty of the court in the circumstance is limited to interpretation and enforcement of the terms of the contract as agreed by the parties thereto. See Koiki v. Magnusson (1991) 8 NWLR (Pt. 615) pg. 492, International ile Ind. (Nig) Ltd v. Aderemi (1991) 8 NWLR (Pt. 614) pg.268. “It must be reiterated here that the court must treat as sacrosanct the terms of an agreement freely entered into by the parties. This is because parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful. The terms of contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are arguably the guide to its interpretation. When parties enter into a contract they are bound by the terms of the contract as set out by them. It is not the business of the court to rewrite a contract for the parties, See BFI Group of Company v. BPE (2012) LPELR-9339, Afrotech Services (Nig) Ltd v. M.A. and Sons Ltd (2002) 15 NWLR (Pt. 692) pg.730. per. UZO I. NDUKWE-ANYANWU, J.C.A.

PRACTICE AND PROCEDURE:INTEREST; WHETHER MONETARY JUDGEMENT ATTRACTS APPROPRIATE INTEREST EVEN WHERE NON IS CLAIMED

Moreover, it is also settled law that it is not in every case that evidence has to be adduced in respect of interest claimed before interest is awarded. That is certain case, even failure to claim interest in the writ of summons or statement of claim, will not preclude a successful plaintiff from praying for and being awarded interest after judgment had been entered for an amount. See Nigerian General Superintendence Co. Ltd v. The N.P.A. (1990) 1 NWLR (Pt. 129) pg. 74. The general Rule is that monetary judgment attracts appropriate interest even where none is claimed. See the case of Ibama v. S.P.D.C. (1998) 3 NWLR (Pt. 542) pg. 493. per. UZO I. NDUKWE-ANYANWU, J.C.A.

PRACTICE AND PROCEDURE: INTEREST; WHETHER INTEREST CAN ONLY BE PAID IF IT FORMS PART OF THE CONTRACT

The law is that interest can only be paid if it forms part of the contract. It must also be expressly pleaded and proved. In this case, interest was part of the terms of the contract, expressly written and pleaded. per. UZO I. NDUKWE-ANYANWU, J.C.A.

CONTRACT: TERMS OF CONTRACT; WHETHER THE COURT CAN ONLY INTERPRET THE EXPRESS TERMS OF CONTRACTS ENTERED INTO BY PARTIES AND WHETHER COURT CANNOT AND MUST NOT ALLOWED PARTIES TO VARY SUCH TERMS

The courts can only interpret the express terms of contracts entered into by parties. The court cannot and must not allow parties to vary such terms. The court can also not allow parties to renege on the terms of their contracts freely entered into. per. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

MINAJ HOLDINGS LIMITED Appellant(s)

AND

ASSET MANAGEMENT CORPORATION OF NIGERIA Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Lagos Division delivered by C. J. Aneke J. on the 11th of December, 2013. The Plaintiff, now Respondent in this appeal, on the 14th of December, 2012 filed an Originating Summons, supported by an Affidavit dated 14th of December, 2012, against the Defendant, now Appellant who on its own part filed a Counter-Affidavit and written address dated 11th of January, 2013 at the Court below.

The following facts are not in dispute between the parties in this case. The Appellant was a customer of Union Bank Plc. It borrowed from the said Bank the total sum of N8,935,824,268.66 (Eight Billion, Nine Hundred and Thirty Five Million, Eight Hundred and Twenty-Four Thousand, Two Hundred and Sixty Eight Naira, Sixty-Six Kobo) and was unable to pay. This loan formed part of a series of loans purchased from Union Bank Plc by the Respondent under the AMCON ACT. The Respondent restructured the loan from N8,935,824,268.66 (Eight Billion, Nine Hundred and Thirty Five Million, Eight Hundred and Twenty Four Thousand, Two Hundred and Sixty-Eight Naira, Sixty-Six Kobo) to N2,099,225,000.00 (Two Billion, Ninety Nine Million, Two Hundred and Twenty-Five Million Naira) by a letter of offer dated 15th of June, 2012 (Exhibit M2 attached to the affidavit in support of the Respondent Originating Summons). When the Appellant was still unable to pay the restructured amount the Respondent commenced this action at the Court below.

It is the case of the Appellant that he did not accept the offer letter and that the value of his properties contained in the offer letter is incorrect.

The lower court agreed with the case of the Respondent and awarded judgment in favour of the Respondent as per its Originating Summons, hence this appeal. The Judgment of the lower Court is dated 11th of December, 2013 and can be found at page 661-682 of the Record of Appeal.

The Appellant filed 3 (three) Notices of Appeal, which are as follows:

1. Notice of Appeal filed 16th of December, 2013;

2. Amended Notice of Appeal filed on 4th of February, 2014 and;

3. Further Amended Notice of Appeal filed on 27th of February, 2014.

Appellant relied on the Further Amended Notice of Appeal in arguing this appeal. The Further Amended Notice of Appeal contained three grounds of appeal. According to the rules of court, parties filed their briefs of argument. The Appellant filed its brief of argument on 7th of March, 2014 while the Respondent’s brief of argument was filed on 11th of April, 2014. The Appellant’s reply brief was filed on the 24th of April, 2014. From these grounds of appeal, the appellant have distilled the following two (2) issues for determination by this Court viz:-

1. Whether the court below accurately and correctly evaluated and summed up the total value of all the identified assets of the Appellant in the hands of the Respondent, when it considered the second issue for determination as formulated by that court?- (Grounds 1 and 2 of the further Amended Notice of Appeal)

2. Whether the imposed interest element should be part of the judgment debt not having been properly pleaded and proved and also, as the value of all the assets of the Appellant with the Respondent were more than sufficient to fully liquidate the debt at the due date, (Ground 3 of the further Amended Notice of Appeal).

The Respondent for his own part raised a preliminary objection as to the competency of this appeal and in the alternative adopted the issues as formulated by the Appellant in case the preliminary objection is overruled.

Before going into the issues for determination in this appeal, it is important to first deal with the objection raised by the Respondent in this appeal.

The learned counsel for the Respondent submitted that this appeal is incompetent on the grounds that the Notice of appeal was amended twice without leave of court and also that the Appeal was argued on the further amended notice of appeal which was not amended by leave of the Court of Appeal. He relied on Order 6 Rule 15 of the Court of Appeal Rules, 2011 which provides as follows:

“A notice of appeal may be amended by or with the leave of the Court at any time.”

Counsel also relied on the case of Ogembe v. Usman (2011) 17 NWLR (Pt. 1277) 638. Counsel, therefore, urged the Court to strike out the appeal as the court lacks the jurisdiction to hear the appeal based on the above mentioned grounds.

The learned Counsel for the Appellant on the other hand submitted that it is trite that an appellant can file as many Notices of Appeal as it deems fit provided that it is within the time allowed for the appeal. Counsel relied on Section 24(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria as amended and the Supreme Court case of Tukur v. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39. This appeal being an appeal as of right, the three notices were all filed within three months of the final judgment of the court below. Counsel further relied on the case of Fortune Int’l Plc v. City Exp. Bank Ltd (2012) 14 NWLR (Pt. 1319) 86 @ 109. He thus urged the Court to overrule the Notice of preliminary objection.

An aggrieved party in any suit has Three (3) months within which to file a notice of appeal challenging the judgment delivered against him. The judgment in the trial court was delivered on 11th of December, 2013. From that date, an aggrieved party has until 10th of March, 2014 to appeal.
The Appellant filed his first Notice of Appeal on 16th of December, 2013 within time. The amended Notice of Appeal was filed on 4th of February, 2014 and the further amendment was filed on 27th of February, 2014 still within time which means no leave of court is required.
I agree that the Notice of Appeal is the foundation of an appeal. It must be proper before the court for an Appeal to be said to be competent. Any defect in this may render an appeal incompetent and the court will lack the necessary Jurisdiction to entertain it. See; Uwazuruike v. A.G.F. (2007) 8 NWLR (Pt. 1035) pg. 1, A.G.F. v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 678) pg. 187, Shell Int’l Petroleum v. F.B.I.R. (2004) 3 NWLR (Pt. 859) pg.46, S.B.N. Ltd v. M.P.I.E. (2004) 6 NWLR (Pt. 868) pg. 146, Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) pg. 1.
The three (3) notices filed are competent before the court. It is these notices filed that gives this court the necessary jurisdiction to hear this Appeal See Shell International Petroleum B v. F.B.I.R. (supra).S.B.N. v. M.P.I.E. (supra) and Abiola v. Olawoye (supra).
This Appeal is, therefore, competent before this court. The preliminary objection is hereby overruled. I will, therefore, deal with the two issues articulated by the parties.

ISSUE 1

The learned counsel for the appellant submitted that the Appellant have three identifiable assets in the possession of the respondent which are as follows:-

a) A partly developed property in Abuja of about 10 hectares of land valued at N2,013,206,000.00 (Two Billion, Thirteen Million, Two Hundred and Six Thousand Naira) by Jide Taiwo & Co. (Professional Valuers) as at February 2009.

b) Cash payment of N137,170,890 (One Hundred and Thirty-Seven Million, One Hundred and Seventy Thousand, Eight Hundred and Ninety Naira) by the Appellant into the account of the Respondent.

c) A property in Enugu State for the erection of a power generating plant covering about 75 hectares of land valued at N700,000,000,00 (Seven Hundred Million Naira).

The above sums up to N2,850,376,890.00 (Two Billion, Eight Hundred and Fifty Million, Three Hundred and Seventy-Six Thousand, Eight Hundred and Ninety Naira Only) which are in the possession of the Respondent. These facts were clearly stated by the Appellant in its Affidavit dated 28th of October 2013, counter affidavit dated 11th of January, 2013 and the affidavit dated 11th of January, 2013 deposed by one Mr. Lloyd Oyiniki and were unchallenged and uncontroverted by the Respondent. Counsel, therefore, submits that it is trite that any unchallenged and uncontroverted deposition in an affidavit is deemed to have been admitted. The Respondent in this case has directly or indirectly admitted being in possession of the assets. He relied on Section 123 of the Evidence Act 2011 and the case of Akere v. Gov. Oyo State (2012) 12 NWLR (Pt. 1314) pg. 240; Eyiboh v. Abia & Ors (2012) 16 NWLR (Pt. 1325) pg. 51.

Thus the omission of the property in Enugu by the court below in its calculation is ‘perverse’ on ground of improper evaluation of evidence as the Respondent had also, in his counter affidavit dated 24th of January, 2014, admitted being in possession of the Enugu property. Counsel relied on the case of Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) at pg. 550 where Ariwola J.S.C. stated as follows:

“It is not only when there is no evidence to support, a decision that the decision can be held to be perverse. Absence of proper evaluation of evidence and failure to draw appropriate inference from them can also amount to perversity where the inference is so clear that no reasonable tribunal would fail to draw them, or where the inference drawn by the trial Judge does not follow from the evidence or the conclusions that should reasonably follow from the findings of fact he made.”

On this note, counsel invites this court to evaluate properly the unchallenged, uncontroverted and admitted evidence of the Appellant’s property in Enugu in the possession of the Respondent and adjust the computation made by the court below.

The Learned counsel for the Respondent on the other hand submitted that it is not in all cases where failure to file counter affidavit will be prejudicial to the party failing to file Counter affidavit. In the same way, it is not in all cases that failure to file reply will be prejudicial to the case of party failing to file Reply especially where the Counter affidavit may not contain facts material to the fact of the case. In the instant case, counsel contends that his failure to file a reply is not fatal to the case on the ground that the fact in the counter affidavit will not support the case of the Appellant; in other word, the counter affidavit is self-defeating.

He relied on the following cases:
1. Royal Exchange Assurance Nigeria Limited v. Aswani iles Industries Limited (1992) 3 NWLR (Pt. 227) 1 @ 13
2. Ohajunwa v. Obelle (2008) 3 NWLR (Pt. 1073) 52 @ 80.

Counsel further submitted that parties are bound by the terms of the contract and the court cannot alter such terms but rather the duty of the court is to enforce the terms of the contract freely entered into between the parties. The agreement by which the loan of the Appellant was restructured also contains the value of the Appellant’s property. The letter of offer containing the terms of the agreement as well as the value of the property is said to have been duly accepted by the Appellant. The Appellant has not been able to rebut the fact that;

1. The Abuja property was valued at N1,531,064,500.00 (One Billion, Five Hundred and Thirty-One Million, Sixty-Four Thousand, Five Hundred Naira)

2. The Enugu property did not form part of the agreement reached before the repayment was restructured.

3. That he duly accepted the letter of offer containing the agreement.

To that extent, the Appellant cannot be heard to dispute the value of the property at this stage. It is the contention of the Respondent that the terms of the agreement cannot be altered by extraneous evidence like the valuation report of Jide Taiwo & Co. which was never part of the agreement between the parties. Counsel referred to the following cases Pacers Multi Dynamics Ltd v. The M.V. Dancing Sisters (2012) 1 SC (Pt. 1) Or (2012) 4 NWLR (Pt. 1289) 169 @ 197; Northern Assurance Co. Ltd v. Wuraola (1969) NSCC 22; Nimanteks Associates v. Marco Construction Company Ltd (1991) 2 NWLR (Pt. 174) 411; Ekwunife v. Wayne W.A. Ltd (1989) 5 NWLR (Pt. 122); African Reinsurance Corporation v. Fanteye (1986) 1 NWLR (Pt. 14) 113.

Counsel, therefore, urged the court to hold that the trial court correctly and properly evaluated the total value of the assets of the Appellant as shown in the agreement reached by the parties as stated in the letter dated 15th of June, 2012.

The parties have submitted themselves to a contract vide the Contract Exhibit M2 signed by the Chairman, Senator Mike Ajaegbo on 10th of July, 2012. The Contract terms are as contained in the contract. The Appellant had been owing Union Bank of Nigeria Plc a total amount of N8,935,824,268.66 (Eight Billion, Nine Hundred and Thirty-Five Million, Eight Hundred and Twenty-Four Thousand, Two Hundred and Sixty-Eight Naira, Sixty-Six Kobo only) from two loan facilities. The Appellant failed or neglected to pay this amount which resulted in its being declared a bad debt.

At the inception of AMCON, it bought over the bad debt from Union Bank of Nigeria Plc. It restructured the loan facility and the subsequent debt profile.

The debt was thereafter restructured to N2,099,225,000.00 (Two Billion, Ninety-Nine Million, Two Hundred and Twenty-Five Naira Only). Accrued interest of 15% on the debt is N367,364,375.00 (Three Hundred and Sixty-Seven Million, Three Hundred and Sixty-Four Thousand, Three Hundred and Seventy-Five Naira only). Total of the new principal sum is now N2,466,589,375.00 (Two Billion, Four Hundred and Sixty-Six Million, Five Hundred and Eighty-Nine Thousand, Three Hundred and Seventy-Five Naira only).

The Appellant in liquidation of this new principal sum, offered landed property at Okanje District Cadastral Zone C13, FCT Abuja in favour of AMCON. This property was valued at N1,531,064,500.00 (One Billion, Five Hundred and Thirty-One Million Sixty-Four Thousand Five Hundred Naira only) and taken as part payment of the principal sum. The restructured amount owed by the Appellant is N935,524,875.00 (Nine Hundred and Thirty-Five Million, Five Hundred and Twenty-Four Thousand, Eight Hundred and Seventy-Five Naira Only).

This is the outstanding balance in the contract binding the parties.

The Appellant claimed that there was a property in Enugu that the Respondents have that ought to be part of the repayment.

I agree that these facts were in the affidavit of the Appellants.
The question to be asked is when were these depositions made?
They were made during trial after the parties had committed themselves, and a contract Exhibit M2 signed.

The parties are bound by their contractual terms in Exhibit M2.
The Respondents in its originating summons deposed to these facts.

“The Plaintiff thereby purchased from the Original Creditors the total value of the Defendant’s indebtedness in the sum of N8,935,824,268.66 (Eight Billion, Nine Hundred and Thirty-Five Million, Eight Hundred and Twenty-Four Thousand, Two Hundred and Sixty-Eight Naira, Sixty-Six Kobo) (Original Indebtedness).
Pursuant to the Defendant’s request for a restructuring of its total indebtedness to the plaintiff under the Agreement, the parties met and the plaintiff agreed to reduce the original indebtedness of the Defendant to the principal sum of N2,466,589,975.00 (Two Billion, Four Hundred and Sixty-Six Million, Five Hundred and Eight-Nine Thousand, Three Hundred and Seventy-Five Naira Only) (“due sum”) and both parties agreed as to the terms of interest in the due sum and repayment. This was entered by consensus in a Facility Restructuring Agreement dated 15th of June, 2012 (FRA). The said FRA is hereby attached, marked “Exhibit M2″ and shall be relied on at the hearing of this case”.

The Appellant deposed to the following facts in its Counter Affidavit.

“That the Plaintiff modified its Offer Letter by another Offer Letter dated the 15th day of June, 2012 and it was this second letter of offer that the Defendant accepted. A copy of the said letter of Offer accepted by the Defendant is annexed as Exhibit LO 11.

That the said letter summarized the position as follows:-

a. that this second Letter of Offer dated the 15th day of June, 2012 supersedes the earlier one dated 9th day of March, 2012.

b. that the adjusted balance payable to the plaintiff was N2,099,225,000.00.

c. that the accrued interest was N367,364,375.00

d. that the value of Exhibit LO 3 which the plaintiff estimated at N1,551,064,500,00 to be deducted from the total amount.

e. the balance which was classified as the principal payable to the Plaintiff was put at N935,524,875.00

These paragraphs are relevant and they attest to the terms of Exhibit M2.

As in this case, the only property used in the evaluation and restructuring of the loan is that property in Okanje, Abuja. No other property was utilized in reaching the restructured debt burden. It is pertinent to note that the Chairman, Senator Mike Ajaegbo signed that restructured loan agreement. Its terms and conditions are binding on him.
A lot of communication has gone between the parties before the final terms and conditions. It was only because, the Appellant reneged on the terms reached by the parties that the Respondent instituted this case.
In the court below the Respondent, as claimant, wanted the court to adjudicate on the terms agreed to in Exhibit M2.
The court cannot allow the Appellant to bring in extraneous matters to vary the terms of Exhibit M2. See Dalek Nig. Ltd v. OMPADEC (2007) 2 SC pg. 305. The Supreme Court held per Ogbuagu, JSC:
“If parties enter into an agreement, they are bound by its terms. One or the other party cannot legally or properly read into the agreement the terms on which the parties have not agreed”
The Appellant had argued in its brief that in its affidavits it deposed to the facts that, the Respondent had the documents to its Enugu property and that it had money in its account with Union Bank to the tune of N137,170,890 (One Hundred and Thirty-Seven Million, One Hundred and Seventy Thousand, Eight Hundred and Ninety Naira only). Even though the Appellants deposed to these facts, the Respondent is not duty bound to refute these assertions as they do not form part of their contract.
These are extraneous to their contract and their loan restructuring, see Exhibit M2.
The Chairman, Senator Mike Ajaegbo, himself signed this Exhibit M2 and no other. He would be estopped from reneging on this contract. See. Savannah Bank Nig. Ltd v. Salami (1996) LPELR-3022 where the court held as follows:
“It cannot be disputed that when a transaction has been reduced to, or recorded in writing by the agreement of the parties, extrinsic evidence is, as a general rule, inadmissible to contradict, vary, add to or subtract from the terms of the document”.
The deposition in the Appellant’s affidavit referring to the Enugu property, the valuation of Jide Taiwo for the Abuja property and the money in the Appellant’s account with the Union Bank of Nig. Plc, are all extraneous matters. They were not part of the terms of the contract of restructure, Exhibit M2, signed by the Chairman, Senator Mike Ajaegbo.
The Appellant reneged on the terms of the contract. I am surprised that the Respondent did not call into play the “Default Clause” of the contract in Exhibit M2.
The Respondent instituted this suit to enforce the terms of the Facility Restructuring Agreement (FRA) dated 15th of June, 2012.
I believed the Respondent was even magnanimous as it has not asked the court to enforce the Default Clause in the Facility Restructuring Agreement (FRA) which allows the Respondent to cancel the concession and revert to the original debt.
The Appellant in his argument in the lower court tried to bring in extraneous matters that did not form part of the original Facility Restructuring Agreement (FRA). The courts can only read meaning into the terms of the contract See Kaydee Ventures Ltd v. The Honourable Minister FCT & Ors. LPELR-1681 where the court held.
“It is now settled Law that in matters of contract as in the instant case, in which the terms and conditions of contract are embodied in a written document, the parties and the court will not be allowed to read into the contract extraneous terms on which they reached no agreement as the court cannot make a contract for the parties.”
The primary duty of the court in the circumstance is limited to interpretation and enforcement of the terms of the contract as agreed by the parties thereto. See Koiki v. Magnusson (1991) 8 NWLR (Pt. 615) pg. 492, International ile Ind. (Nig) Ltd v. Aderemi (1991) 8 NWLR (Pt. 614) pg.268.
“It must be reiterated here that the court must treat as sacrosanct the terms of an agreement freely entered into by the parties.
This is because parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful.
The terms of contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are arguably the guide to its interpretation. When parties enter into a contract they are bound by the terms of the contract as set out by them. It is not the business of the court to rewrite a contract for the parties, See BFI Group of Company v. BPE (2012) LPELR-9339, Afrotech Services (Nig) Ltd v. M.A. and Sons Ltd (2002) 15 NWLR (Pt. 692) pg.730.
The Appellant and the Respondent entered into this contract and the terms of the Facility Restructuring Agreement (FRA) was signed by the Chairman of the Appellant – Senator Mike Ajaegbo. Having signed the Facility Restructuring Agreement (FRA), the Appellant is bound by all the terms of the document unless there is an allegation of fraud.
The Chairman understood the terms of the Facility Restructuring Agreement (FRA) because the subsequent correspondence of the Appellant showed his appreciation of the question of the Respondent in restructuring the loan facilities extended by Union Bank of Nig. Plc.
The Respondent is entitled to the total sum of the restructured loan of N2,466,589,375.00 (Two Billion, Four Hundred and Sixty-Six Million, Five Hundred and Eighty-Nine Thousand, Three Hundred and Seventy-Five Naira only) as per the Facility Restructuring Agreement (FRA).

This issue is resolved against the Appellants

ISSUE 2

Learned counsel for the Appellant submitted that for a Plaintiff to succeed in a claim for interest it must show how the entitlement to such interest arose, that is, whether by law or by contract. See S.A.F.P & U. v. UBA PLC (2010) 17 NWLR (Pt. 1221) 192. In other words, the facts of the entitlement must be pleaded by the Claimant followed by evidence to establish same. Once the court is satisfied, after reviewing the pleading and evidence that it may award same. See UBN PLC v. SCOPE (NIG.) LTD (1998) 12 NWLR (Pt. 578) 439.

Counsel relied on the Supreme Court case of S.A.F.P. & U v. UBA PLC (supra) where Mukhtar, JSC stated as follows;

“It is trite law that the courts from time immemorial are reluctant to award interests generally. London, Chatham & Dover Railway v. South Eastern Railway (1893) A.C. 429 thereby giving the rule of law that interest must not only be pleaded but also strictly proved.”

In the instant case, the Respondent has failed to show how it arrived at the interest rate it charged the Appellant.

Counsel further submitted that the addition of the interest to the amount due the Respondent was not proper as the value of the assets of the Appellant that were handed over to the Respondent were more than sufficient to pay off the debt on the due date or immediately thereafter.

In response, the learned counsel for the Respondent submitted that it is true that interest can arise as a matter of law or a matter of contract. In this case, the Respondent has sufficiently pleaded and proved his entitlement to interest. The rate of interest is contained in the document attached to the affidavit in support of the originating summons. Counsel contends that in actions commenced by way of Originating Summons, the affidavit in support serves two purposes i.e. it serves as pleadings as well as evidence. The law is that documents exhibited in an affidavit forms part of the affidavit, so it is the case of the Respondent that the agreement exhibited in the affidavit in support contains the entitlement of the Respondent to interest and the rate of such interest. Counsel referred to the letter dated 24th of January, 2007 and 2nd of July, 2008 at pages 85-87, 92-93 of the Record of appeal and the letter dated 15th of June, 2012 at pages 64-67 and 127-130 of the record of Appeal.

This suit was instituted by way of originating summons.
It would, therefore, be taken that the affidavit is the pleadings in this case. Both parties filed affidavits in support of their cases.

“The general rule at common law, is that interest is not payable on a debt or loan in the absence of express agreement on some course of dealing or customs to that effect”
See: London, Chatham & Dover Railway v. South Eastern Railway (supra).
This interest will, however, be payable where there is an express agreement to that effect and such an agreement, may be inferred from a course of dealing between the parties, See Re-Duncan and Co. (1905) 1 Ch. 307 or where an obligation to pay interest arises from the common or usage of a particular trade or business and I add like in banking per Ogbuagu, JCS in Diamond Bank Ltd v. Partnership Investment Co. Ltd and Anor (2009) 18 NWLR (Pt. 1172) pg.67.

The Respondent in Exhibit M2 had a subhead dedicated to interest. I will recap it here under for ease of deference:

“15% percent interest rate shall be applicable to the restructured facility, and to be paid monthly accruing from July 1, 2012. The interest rate advised is only applicable in the first two years of the restructure. Subsequently, the Central Bank of Nigeria’s Monetary Policy Rate (MPR) Plus 5% per annum, whichever is higher, shall be applicable for the residual period of the restructure. Any future variation of interest rates as advised by AMCON will be deemed accepted unless the facility is fully repaid on the effective date of such review”.

The interest rate is properly set out in that sub-head. To this Facility Restructuring Agreement (FRA), the Chairman of the Appellant accepted and signed. The Appellant can no longer renege on this express term of this contract document.

However, the contract document, Facility Restructuring Agreement (FRA), contained a detailed clause on interest.

The argument of the Appellant does not, therefore, hold water. Interest was expressly made a term of the document, Exhibit M2. It was also part of the pleadings as it was attached as one of the documents attached to the originating summons.

The Respondent is entitled to the interest rate in the terms of the contract signed by the Chairman of the Appellant. This issue is also resolved in favour of Respondents.

The two issues articulated by the Appellant for determination by the court have all been resolved against it.

This appeal is unmeritorious and, therefore, dismissed. The Respondent is entitled to the restructured sum of the Facility Restructuring Agreement (FRA) of N2,099,225,000.00 (Two Billion, Ninety-Nine Million, Two Hundred and Twenty-Five Thousand Naira only) 15% Per Annum on the principal amounting to N367,364,375.00 (Three Hundred and Sixty-Seven Million, Three Hundred and Sixty-Four Thousand, Three Hundred and Seventy-Five Naira Only). Total due is, therefore, N2,466,589,375.00 (Two Billion, Four Hundred and Sixty-Six Million Five Hundred and Eighty-Nine Thousand, Three Hundred and Seventy-Five Naira only).

Cost to the Respondent is assessed at N50,000.

TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now the lead Judgment prepared and rendered by my learned brother Ndukwe-Anyanwu, JCA.

I am in total agreement with the reasoning and conclusion, and adopt the well written Judgment as mine. I have nothing useful to add.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in advance the judgment just delivered by my learned brother U. I. NDUKWE-ANYANWU, JCA. I agree with the reasoning and conclusion arrived at in the lead judgment.

I wish to add my voice to the issue of sanctity of contract agreement. It is trite that parties are bound by the terms of agreement in a contract document and none can vary such terms, see the judgment of the apex court in the case of ARJAY v. A.M.S. LTD (2003) 7 NWLR (Pt. 820) 577 where it held thus:
“It is elementary law that where parties have entered into a contract or an agreement, they are bound by the provisions of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement. The court is bound to construe the terms of the contract or agreement and the terms only in the event of an action arising therefrom.”
The appellant is therefore bound by the agreement between it and the respondent. It cannot midstream want to alter the terms and thus the holding of the lower court and the judgment of this court.

For this and other reasons given in the lead judgment I too dismiss the appeal and I abide by the others made therein.

Appearances

L. C. Ilogu (SAN), Lloyd OyinkiFor Appellant

AND

Toyin Pinheiro (SAN), Ifeoluwa Adebambo, C. A. ChanbangFor Respondent