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MR. PAUL NWABUFO v. UNITED BANK FOR AFRICA PLC & ANOR (2019)

MR. PAUL NWABUFO v. UNITED BANK FOR AFRICA PLC & ANOR

(2019)LCN/13405(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2019

CA/L/942/15

 

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

MR. PAUL NWABUFO Appellant(s)

AND

1. UNITED BANK FOR AFRICA PLC
2. U.B.A. STOCK BROKERS LIMITED Respondent(s)

RATIO

WHETHER OR NOT EVALUATION OF EVIDENCE IS THE PRIMARY DUTY OF THE TRIAL COURT

The law is trite and has been restated in so many decisions of this Court and the Supreme Court that the evaluation of evidence is primarily the duty or business of the Trial Court or Tribunal with which an Appellate Court will ordinarily not interfere unless it is shown that the trial Court has goofed or committed a blunder in its evaluation of the evidence made available to it. See EHOLOR Vs. OSAYANDE [1992] NWLR (Pt. 249) 524; (1992) LPELR-8053 (SC), Pg. 43-44, Paras. G ? A; OKUNZUA Vs. AMOSU [1992] NWLR (Pt. 248) 416; (1992) LPELR-2531 (SC), Pg. 20, Paras. D ? E; TUKUR Vs. UBA & ORS (2012) LPELR-9337 (SC), Pg. 45, Paras. B ? E where ARIWOOLA JSC held that: ?Generally, and it is settled law that the evaluation of evidence adduced and ascription of probative value or weight to such evidence is the primary duty of the trial judge who saw and heard the witnesses
In MAMUDA Vs. STATE (2019) LPELR-46343 (SC), Pg. 15-16, Paras. F ? B, His Lordship MUHAMMAD JSC held that: ?The task of evaluating evidence and ascribing probative value to it is the primary duty of the trial Court. The lower Court and indeed this Court, unlike the trial Court, are handicapped when evaluation of evidence, as in this case, is made an issue See also UBA PLC Vs. J.I. EFEMINI & SONS (2018) LPELR-44150 (CA), Pg. 19-20, Paras. C ? C. The evaluation of evidence and ascription of probative values to the evidence so tendered and evaluated is the exclusive preserve of the trial Court that had the opportunity to see and hear the parties before it; and an Appellate Court cannot interfere with that duty of the trial Judge except in special circumstances and such special circumstances do not include that the appellate Court would have exercised such discretion differently. In ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD [1992] NWLR (Pt. 247) Pg. 319; (1992) LPELR-511 (SC) Pg. 20-21, Paras. G ? The Supreme Court held that:
?It is not in all cases that an appeal Court will interfere with the exercise of discretion by a trial Judge, simply because it did not favour one of the parties litigating before him. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court, for the moment you do that, the discretion is fettered.”
Similarly, in OLATUBOSUN Vs. TEXACO NIG PLC (2012) LPELR-7805 (SC) Pg. 18, Paras. C ? D the Supreme Court of Nigeria held that: an appellate Court like ours will not interfere with the exercise of discretion of the Court below merely because this Court would have acted differently. ?this Court will only interfere where the discretion exercised is manifestly wrong, arbitrary, reckless and injudicious.? Also, MUHAMMAD JSC in FALEYE & ORS Vs. DADA & ORS (2016) LPELR-40297 (SC) Pg. 33-34, Paras. E ? C, held that:
This Court has stated it times without number that it is none of its functions or indeed that of an appellate Court to substitute its own views of the evidence for those of the trial Court that is better placed to deal with those matters. The appellate High Court could only have interfered with findings of facts of the trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice? …However, where the bone of contention as to evaluation of evidence has to do with evaluation of documentary evidence, this Court is in a vantage position as the trial Court to examine and evaluate documentary evidence…”
See: also CPC Vs. OMBUGADU & ANOR (2013) LPELR-21007 (SC) Pg. 63-64, Paras. G ? B where NGWUTA JSC held that:
“An appellate Court enjoys the same position as the trial Court in evaluation of documentary evidence as in this case where the controversy is limited to the interpretation of documents. Where the findings of the trial Judge on documentary evidence is perverse an appellate Court will employ its appellate power to correct the perversity…” PER ABUBAKAR, J.C.A.

WHETHER OR NOT AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

The law is trite that it is only where the trial Court failed in its duty and the Appellant shows how this has occurred that an appellate Court would embark on interference with the conclusions and the evaluation of evidence carried out by the learned trial Judge, this sparingly happens in special circumstances, which do not include that the appellate Court would have exercised its discretion differently. See MAMUDA Vs. STATE (Supra); UBA PLC Vs. J.I. EFEMINI & SONS (Supra); ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD (Supra); OLATUBOSUN Vs. TEXACO NIG PLC (Supra); and FALEYE & ORS Vs. DADA & ORS (Supra). PER ABUBAKAR, J.C.A.

WHETHER  OR NOT PLEADINGS CONSTITUTE EVIDENCE

The above conclusion by the learned trial Judge is well grounded in law. In NEWBREED ORGANISATION LTD Vs. ERHOMOSELE [2006] 5 NWLR (Pt. 974); (2006) LPELR-1984SC (CA) Pg. 53, Para. B ? D, the Supreme Court of Nigeria held that:
?It is now settled, that pleadings do not constitute evidence and therefore, where such pleading is not supported by evidence ? oral or documentary, it is deemed by the Court as having been abandoned. There are too many decided authorities in this regard
See: also NWOKO Vs. IKOGHODE & ORS (2017) LPELR-43099 (CA) Pg. 36, Para. B ? D where this Court held that  averments in pleadings not supported by evidence are deemed abandoned, and liable to be struck out.  PER ABUBAKAR, J.C.A.

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Lagos State, sitting in the Lagos Judicial Division, delivered by OBADINA, J. on the 27th day of February, 2015 in Suit No: LD/395/2009 which is contained at pages 303 ? 323 of the Records of Appeal wherein the learned trial Judge dismissed the Appellant?s claim. The Appellant as Claimant instituted the suit against the 1st and 2nd Respondents (as Defendants) at the Court below on the 13th day of March, 2009; the Originating Processes are contained at pages 1 ? 26 of the Records of Appeal. The 1st and 2nd Respondents filed their Amended Statement of Defense found at pages 99 ? 103. The Appellant filed a Reply to the Amended Statement of Defense on the 25th day of October, 2013 as contained at pages 109 ? 113 of the Records of Appeal. Parties filed and exchanged their Written Addresses and the Respondents filed reply on Points of Law; at the end, the trial Court dismissed the claims of the Appellant on the ground that he failed to establish his entitlement to the reliefs.

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?Peeved by the decision of the lower Court the Appellant filed a Notice of Appeal on the 27th day of May, 2015 as contained at pages 324 ? 335 of the Records of Appeal containing 12 (twelve) Grounds of Appeal. The Appellant?s Brief of Argument was filed by Aloysius Chukwuma Izenda on the 25th day of April, 2016. On the other hand, the 1st and 2nd Respondents? Brief was filed by learned Counsel Collins N. Ogbonna Esq. on the 19th day of July, 2016. The Appellant filed a Reply Brief on the 21st day of June, 2017. All the Briefs were deemed as properly filed and served on the 5th day of March, 2019.
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In addition to the Respondents? Brief of argument, learned counsel for the Respondents filed a Motion on Notice on the 19th of July, 2016 challenging some grounds in the Notice of appeal and the issues crafted therefrom. Learned counsel for the Appellant nominated and submitted 6 (six) issues for determination, the issues are reproduced as follows:
1. Whether the Trial Court?s failure to properly evaluate the documentary evidence tendered and admitted and the record of proceedings of the Court have not led to a miscarriage of justice. (From

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Grounds 1, 2, 3, & 4).
2. Whether the trial Court was right to hold that the Claimant/Appellant reply to the Defendant?s amended statement of defense dated 7/10/13 and filed 5/11/13 is deemed abandoned whereas evidence was led on the said reply and during cross examination of the Defendant?s witness Amaka Obiora who gave evidence on the facts covered by the said reply and when issues has been joined by the parties on these points. (From grounds 5 & 6).
3. Whether the trial Judge misapplied the case of AHMED V C.B.N (2010) 7SC 1 at pg. 19-20 which would have enabled him arrive to a correct decision in favour of the Appellant. (Ground 7).
4. Whether the Learned Trial Judge misunderstood the case of the parties and relying on Section 125 of the Companies and Allied Matters Act 1990 LFN as applicable in the circumstances of this case and thus arrived at the wrong conclusions and Judgment leading to a serious miscarriage of justice. (Ground 8, 9 & 10)
5. Whether the trial Court was right having found that: ?My findings is that there is no evidence to prove that the Claimant is indebted to the Defendant? The

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Defendant did not show the Court how they arrived at N6.9m set off. I take note of the amount the 1st Defendant contributed which is N5,874,000.00k there is no evidence to show that the balance of N1,026,000.00 is the interest and how the figure was arrived at. There is also nothing to show that the Claimant?s whole contribution was utilized? to dismiss the suit of the Claimant/Appellant. (Ground 11).
6. Whether having resolved that the Defendant owes the Appellant fiduciary duty and having held that there is a breach of that duty the trial Court ought to have awarded General damages for breach of that duty and allow the Appellant rescind/repudiate the contract for breach of contract and fiducial duty. (Ground 12).

The learned Counsel for the 1st and 2nd Respondents on the other hand distilled 5 (five) issues for determination, the issues are also reproduced as follows:
1. Whether the lower Court properly evaluated the evidence before it and was right to have found and held that the Appellant failed to prove its allegation of breach of contract and proceeded to dismiss the Suit No: LD/395/2009: Mr. Paul Nwabufo vs (1) United Bank for

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Africa Plc (2) U.B.A Stock Brokers Limited.
2. Whether the lower Court was right to have relied on the provisions of Section 125 of the Companies and Allied Matters Act, Cap. C20, LFN 2004, to hold that the Respondents discharged their duties under the contract and not liable to the Appellant for breach of contract.
3. Whether the lower Court was right to have held that, the Appellant?s Reply to Amended Statement of Defense was abandoned for failure to support same with evidence by way of a written statement on oath.
4. Whether the lower Court properly applied the principle in the case ofAhmed vs. C.B.N. (2013) 2 NWLR (Pt. 1339) 524, to the fact of the suit before it.
5. Whether the lower Court was right to have refused toaward the General Damages which the Appellant claimed.

RESPONDENTS? MOTION ON NOTICE
As stated herein before, the Respondents filed a Motion on Notice on the 18th day of July, 2016 but filed on the 19th day of July, 2016. The Respondents sought for the Order of this Court striking out Grounds 1, 2, 3, 4, 11 and 12 in the Appellant?s Notice of Appeal and Issues 1, 5 and 6 in the

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Appellant?s Brief of argument distilled from the said grounds perceived to be incompetent by the Respondents. The grounds for the application are that Grounds 1, 2, 3, 4 and 11 in the Appellant?s Notice of Appeal complain against the decision of the lower Court in an interlocutory decision delivered on the 31st day of January, 2013 where Exhibit C14 was rejected by the trial Court; and that the said decision was not appealed against for over two years contrary to the provisions of Section 24(2)(a) of the Court of Appeal Act, Cap. C36, LFN 2004. The other ground upon which the Respondents? application is predicated is that Ground 12 of the Appellant?s Notice of Appeal complains against an obiter dictum in the Judgment of the lower Court. The Respondents? Motion on Notice is supported by 5 (five) paragraph Affidavit deposed to by Felix Deckon on the 19th day of July, 2016. In response to the Respondents? Motion on Notice, the Appellant filed a 15 (fifteen) paragraph Further and Better Counter-Affidavit deposed to by Petronilla Amaka Ezenduka on the 21st day of June, 2017.
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Arguments in respect of the Respondents?

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Motion on Notice were embedded in the Respondents? Brief; The learned counsel for the Respondent argued that the decision of the lower Court rejecting Exhibit C14 on the 31st day of January, 2013 is an interlocutory decision; that by the provisions of Section 24(2)(a) of the Court of Appeal Act, Cap. C36, LFN 2004, an appeal against an interlocutory decision must be filed within 14 (fourteen) days after the delivery of the said decision; and that in the instant case, the Appellant?s appeal against the interlocutory decision delivered on the 31st day of January, 2013 came over two years after the delivery of the Ruling thereby rendering the said Ground of Appeal incompetent.

Learned counsel referred to OGIGIE & ORS Vs. OBIYAN [1997] 10 NWLR (Pt. 524) Pg. 179 at 195; AJANI Vs. GIWA [1986] 3 NWLR (Pt. 32) Pg. 796 at 804 and ADEYEMI Vs. Y.R.S. IKE-OLUWA & SONS LTD [1993] 8 NWLR (Pt. 309) Pg. 27 at 55 to submit that the failure by the Appellant to seek the leave of Court before appealing against the rejection of Exhibit C14 under Ground 3 on the Notice of Appeal renders the said ground and any issue distilled therefrom in the

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Appellants? Brief incompetent since an incompetent ground of appeal can only give rise to an incompetent issue for determination. Counsel further argued that issue No. 1 in the Appellants Brief distilled from Grounds 1, 2, 3, and 4 of the Appellant?s Notice of Appeal is incompetent.

Learned counsel relied on KADZI INT?L LTD Vs. KANO TANNERY CO. LTD [2004] 4 NWLR (Pt. 864) Pg. 545 at 563 and BEREYIN Vs. GBOBO [1989] 1 NWLR (Pt. 97) Pg. 372 at 380 to submit that an issue for determination formulated from both competent and incompetent grounds of appeal and argued together are all together incompetent and liable to be struck out; and that it is not a defense for the Appellant that issue No. 1 is formulated from four grounds. Counsel urged this Court to strike out Grounds 1, 2, 3 and 4 of the Notice of Appeal and Issue No: 1 in the Appellant?s Brief on grounds of incompetence. With respect to Ground 11 of the Appellant?s Notice of Appeal, the learned Counsel adopted the foregoing arguments in respect of Ground 3 and submitted that the said Ground 11 and the issue formulated therefrom is also challenging the rejection of Exhibit

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C14 but was not filed within 14 days of the decision of the lower Court. Counsel urged this Court to strike out Ground 11 of the Notice of Appeal and Issue No: 5 in the Appellant?s Brief for reasons of incompetence.

In respect of Ground 12 of the Notice of Appeal, learned counsel for the Respondents argued that the said finding of the lower Court referred to in Ground 12 is an obiter dictum and not the ratio decidendi upon which the lower Court based its decision. Counsel argued further that the portion of the judgment quoted in Ground 12 of the Appellant?s Notice of Appeal is just a side comment which does not form the basis of the decision of the lower Court and can therefore not be appealed against. Counsel contended that prior to making the statement referred to in Ground 12 of the Appellant?s Notice of Appeal which is at page 321 of the Records of Appeal, the learned trial Judge had earlier on found at page 319 of the Records of Appeal that the case of breach of contract has not been made out by the Appellant and consequently dismissed Reliefs 1 and 3 as claimed by the Appellant. Learned counsel submitted that the later statement of

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the lower Court cannot by any stretch of imagination be the decision of the lower Court; and that it is at best an obiter dictum.

Learned counsel for the Respondents further referred to the findings of the lower Court at page 322 of the Records of Appeal to submit that after making the statement now being challenged by the Appellant; the lower Court made it clear that it was aware that the case of the Appellant was premised on breach of contract and not breach of fiduciary duties. Counsel argued that the trial Court made it clear and found that the issue and case submitted by the Appellant to it is on breach of contract; and that any side comment made on fiduciary duties cannot form the ratio decidendi of the decision of the lower Court.

Learned counsel referred to UCHEGBU Vs. SPDC (NIG) LTD [2010] 2 NWLR (Pt. 1178) Pg. 285 and APAPA Vs. INEC [2012] 8 NWLR (Pt. 1303) Pg. 409 at 425 and urged this Court to strike out Ground 12 of the Notice of Appeal and Issue No: 6 in the Appellant?s Brief. Counsel further referred to the said Issue No: 6 in the Appellant?s Brief to submit that the submissions made against the dismissal of the

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Appellant?s claim for Solicitor?s fee is not premised on any ground in the Notice of Appeal; citing INAKOJU & ORS Vs. ADELEKE & ORS [2007] 1 SC (Pt. 1) Pg. 1 at 128, to urge that Ground 12 of the Notice of Appeal and Issue No: 6 in the Appellant?s Brief of argument be struck out.

In the Reply Brief filed on behalf of the Appellant, learned counsel submitted that the legal arguments by the Respondents are gravely misconceived and that the choice of appealing against an interlocutory decision is strictly that of the aggrieved party. Counsel referred toNGIGE Vs. INEC [2015] 1 NWLR (Pt. 1440) Pg. 281 & 326 to submit that there is no law barring the inclusion of a ground of appeal that challenges an interlocutory decision made during trial in a Notice of Appeal against a final Judgment as in the instant case. Learned counsel argued that Appellate Courts no longer consider grounds of appeal but the issue formulated from the grounds. Counsel argued that the essence and function of a ground of appeal is to inform the opposite party and the Court the nature of the complaint being raised in the ground; and that the issues for

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determination must be formulated from grounds of appeal which in turn must derive from the ratio decidendi from the Judgment subject matter of appeal.

Learned counsel cited in support of the foregoing the cases of ADEROUNMU Vs. OLOWU [2000] 4 NWLR (Pt. 652) Pg. 253 at 256; INEC & ORS Vs. USMAN ABUBAKAR CA/J/EP/SN/114B/2008 (2008) LegalPedia CAOVSL; OCHOLI JAMES, SAN Vs. INEC SC.478/2013 (2015) LegalPedia SCBUZ5; EGBE Vs. ALHAJI [1990] 3 SC (Pt. 11) Pg. 63 at 109 and DALEK NIG LTD Vs. OMPADEC [2007] All FWLR (Pt. 364) Pg. 204 at 226, Para F ? H. Counsel further relied on DANIEL TAYAR TRANS. ENT. NIG. CO. LTD Vs. LIADI BUSARI SC/79/2003 (2011) LegalPedia to contend that Section 24(2)(a) of the Court of Appeal Act is not applicable to the instant case and that the said provision does not in anyway constitute a bar to a ground of appeal that relates to the interlocutory ruling on admissibility of a document during trial.
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Learned counsel argued that where an Exhibit is rejected, it is left to the Appellant to appeal against that Ruling or wait until the conclusion of the trial and then appeal against the entire decision; that the

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Respondents? contention is not supported by Section 24(2)(a) of the Court of Appeal Act; and that appellate Courts in fact frown at such interlocutory appeals that ultimately delay the trial in the substantive suit. Counsel argued that Section 15 of the Court of Appeal Act covers the field on what constitutes a competent ground of appeal from which a valid issue can be distilled since this Court is seized of the entire proceedings. Learned counsel therefore urged this Court to hold that Grounds 1, 2, 3, 4, 11 and 12 of the Appellant?s Notice of Appeal and Issues No 1, 5 and 6 in the Appellant?s Brief are competent and valid and that this Court has jurisdiction to decide this appeal based on these issues pursuant to Section 15 of the Court of Appeal Act.

With respect to the Respondents? submissions on Ground 12 of the Notice of Appeal; learned counsel for the Appellant submitted that an obiter dictum is an aside or passing comment made by the court that do not directly arise from the issue decided in the judgment, decision or ruling. Counsel referred to MICHAEL OGBOLOSINGHA & ANOR Vs. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION & ORS

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(2015) LegalPedia SC9DOK and ADEDAYO Vs. P.D.P (2013) LegalPedia SC3S6 (SC. 261/2012) to submit that the findings of the trial Court challenged under Ground 12 of the Notice of Appeal cannot be classified as obiter dictum. Learned counsel further referred to paragraph 23(v) of the Appellant?s pleadings to argue that the Appellants pleaded letter dated 16th February, 2010 marked as Exhibit C12 which was rejected by the lower Court on the ground that it was not pleaded; that a similar letter at page 58 of the Records of Appeal marked as Exhibit C8 was admitted in evidence at page 238 of the Records of Appeal.
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Learned counsel further contended that since the parties joined issues on the question of indebtedness; any document that establishes this fact is relevant and admissible. Counsel further argued that the trial Court having found that the Appellant is not indebted to the Respondents went on to dismiss the Appellant?s claim entirely leading to grave injustice and leaving the Appellant without a remedy. Learned counsel submitted that since the facts relating to Exhibit C12 as pleaded in paragraph 23(v) of the

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Appellant?s Statement of Claim were not objected to; the said Exhibit C12 should have been admitted and acted upon by the learned trial Judge. Counsel referred to Sections 6(1) & (2)(a) of the Evidence Act, 2011 and urged this Court to dismiss the Respondent’s Motion on Notice and the reliefs sought.

RESOLUTION OF OBJECTION
In the light of the foregoing submissions of counsel for the contending parties, the issue to resolve is in two folds; the first issue is whether the decision of the learned trial Judge rejecting an Exhibit tendered by the Appellant can be appealed against after the final judgment when 14 days have elapsed after the Ruling was delivered. The Appellant?s argued that the Appellant can include a challenge against the rejection of the Exhibit tendered by him in the final Judgment and that he had the choice of either appealing against that decision immediately or wait for the final decision to appeal against the decision all together. The Respondent who brought this Motion contended that the failure to file an appeal within 14 days as contained in Section 24(2)(a) of the Court of Appeal Act bars the Appellant from

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challenging the decision of the lower Court rejecting the Exhibit tendered by it two years after; the Respondent also argued that if the Appellant will be allowed at all to challenge the decision rejecting the said Exhibit tendered by him, then he must have sought for and obtained the leave of Court which he failed to do in the instant case.
InONWE & ORS Vs. EZE NWAOGBUINYA [2001] 3 NWLR (Pt. 700) 406; (2001) LPELR-SC.20/91 Pg. 17-18, Paras. E ? G the Supreme Court per EJIWUNMI, JSC clearly held as follows: ?In my humble view therefore, it may be said, that ordinarily, where an appellant failed to appeal against an interlocutory order or ruling of a trial Court within the time prescribed by S. 25(2)(a) of the Court of Appeal Act 1976, he must obtain the leave of court for his appeal to be competent The foregoing position of the Supreme Court was re-echoed in DESTRA INVESTMENTS LTD Vs. FRN & ANOR (2018) LPELR-43883 (SC) Pg. 10-11, Paras. B ? B. See: also the decision of this Court in KILAWA Vs. KALSHINGI & ANOR (2018) LPELR-45630 (CA) Pg. 16-15, Paras. B ? B and FORBY ENGR. CO. LTD & ANOR Vs. AMCON

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(2018) LPELR-43861 (CA) Pg. 16-19, Paras. C ? C in KILAWA Vs. KALSHINGI & ANOR (2018) LPELR-45630 (CA) Pg. 16-15, Paras. C ? F this Court held that: The law is also that where a party desires to challenge an interlocutory decision by a Lower Court in an appeal against the final decision of that Court, he needs to obtain an extension of time from the Court to enable him bring a valid ground of appeal against the interlocutory decision in the Notice of Appeal against the interlocutory decision The general rule is that, an appeal against an interlocutory decision may be brought together with the appeal against the final Judgment provided leave of the Court is sought and obtained to validate the inclusion of the grounds of appeal against the interlocutory decision which ordinarily ought to have been appealed against by the provisions of Section 24(2) of the Court of Appeal Act.
However, the Supreme Court in ONWE & ORS Vs. EZE NWAOGBUINYA(Supra) clearly settled the issue in the instant case when my Law Lord, EJIWUNMI, JSC at Pg. 17, Paras. G ? C held that: ?A decision made by the trial Court on

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wrongful admission of evidence or wrongful rejection of evidence is part of the main trial and not an interlocutory decision unless a special case has been made in respect of the issue. Thus, a party wishing to appeal against the judgment of the trial Court can file one of the grounds of appeal alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. Both are fundamental as the error might occasion a miscarriage of justice.?
In the light of the foregoing therefore, the decision of the lower Court rejecting the Exhibit tendered by the Appellant does not fall under the general classification of interlocutory decisions which, if an appeal is lodged against it along with the final judgment, leave of Court must be sought for and obtained. In ONWE & ORS Vs. EZE NWAOGBUINYA (Supra) stating further, EJIWUNMI, JSC further held that: ?Where on the other hand, the complaint of the appellant against the ruling is concerned with the wrongful admission of evidence or wrongful rejection of evidence, such an appellant would not require the leave of Court as the ruling appealed against is not regarded as

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interlocutory decision.? In the circumstance therefore, and on the strength of the decision of the Supreme Court inONWE & ORS Vs. EZE NWAOGBUINYA (Supra), I hereby find Grounds 1, 2, 3, 4 and 11 of the Notice of Appeal and Issues No: 1 and 5 in the Appellant?s Brief of argument competent.

What is now left of the Respondents Motion on Notice is the challenge that Ground 12 of the Notice of Appeal and Issue No. 6 crafted therefrom which the Appellant said constitutes a challenge against an Obiter Dictum while the Appellant on the other hand contended is not an obiter dictum considering the said statement is related to the issue which the learned trial Judge was considering at the time. The said Ground 12 of the Notice of Appeal, without its particulars as contained at pages 333 ? 334 of the Records of Appeal is as follows:
?The learned Trial Judge erred in law when he failed to enter judgment in favour of the Claimant and awarded general damages for breach of contract having held that: ?I agree with the Claimant Counsel that the Defendant owed the Claimant a Fiduciary duty to manage the account in a professional manner

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and keep him abreast of all developments on the account. He did not have to write severally for reconciliation of the account which up till the moment was not done.?

The only point to consider at this stage of the proceedings is simply whether or not the said Ground 12 of the Appellants Notice of Appeal constitutes an obiter dictum. Parties herein are not in disagreement with respect to the settled position of the law that an Obiter Dictum cannot be made the subject of an appeal. The point of disagreement is whether or not the part of the Judgment quoted under Ground 12 of the Notice of Appeal is an obiter dictum. To determine the issue in contention between the parties, it is expedient to appreciate what amounts to an obiter dictum. In ODUNUKWE Vs. OFOMATA & ANOR [2010] 18 NWLR (Pt. 1225) 404 SC; (2010) LPELR-2250 (SC) Pg. 48, Para. A, ADEKEYE, JSC defined an Obiter Dictum to mean:  a statement made in passing which does not reflect the ratio decidendi, that is the reasoning or ground upon which a case Is decided.? See also WAGBATSOMA Vs. FRN (2018) LPELR-43722 (SC) Pg. 17-21, Paras. B ? D and MOBIL PRODUCING NIGERIA UNLIMITED Vs. OKON JOHNSON & ORS

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(2018) LPELR-44359 (SC) Pg. 20-22, Paras. C ? A.

In the instant case, the issue distilled from Ground 12 is Issue No. 6 in the Appellant?s Brief of argument which is: ?Whether having resolved that the Defendant owes the Appellant fiduciary duty and having held that there is a breach of that duty the trial Court ought to have awarded General damages for breach of that duty and allow the Appellant rescind/repudiate the contract for breach of contract and fiduciary duty.” From the said Ground 12 of the Notice of Appeal and Issue No. 6 in the Appellant?s Brief, it is not difficult to identify that the contention of the Appellant is that the trial Court ought to have entered Judgment in favour of the Appellant in respect of his claims for breach of contract and ought to have awarded general damages in his favour for breach of contract. The Appellant predicated his contention on the fact that the trial Court found and held that: ?I agree with the Claimant Counsel that the Defendant owed the Claimant a Fiduciary duty to manage the account in a professional manner and keep him abreast of all

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developments on the account. He did not have to write severally for reconciliation of the account which up till the moment was not done.?

The question that arises here is whether the findings quoted by the Appellant, to wit: ?I agree with the Claimant Counsel that the Defendant owed the Claimant a Fiduciary duty to manage the account in a professional manner and keep him abreast of all developments on the account. He did not have to write severally for reconciliation of the account which up till the moment was not done,? can be said to be the ratio decidendi, that is, the reason for the learned trial Judge?s decision to hold that there is no breach of contract between the Appellant and Respondents and the refusal to award damages for breach of contract as claimed by the Appellant. It becomes necessary to refer to other parts of the Judgment as rightly referred to by the learned Counsel for the Respondents. The learned trial Judge before the statement being referred to by the Appellant in Ground 12 had earlier on found at page 319 of the Records of Appeal as follows:
?It is my finding that the Defendant applied the whole

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N10m in fulfilling the mandate and instruction of the Claimant. The inability to receive the full allotment applied does not make the defendants liable for breach of contract and I so hold.
Since there is no breach of contract, the claimant is not entitled to repudiate the contract and is not entitled to damages for breach of contract. The first and third claims fail and are dismissed.?

The learned trial Judge then proceeded to consider the second claim where-under the statement being referred to in Ground 12 of the Appellant?s Notice of Appeal was made. It therefore follows, that the decision of the lower Court to hold that the Respondents are not liable to the Appellant for breach of contract is based on the conclusion that the Respondents applied the whole N10m in fulfilling the mandate and instruction of the Appellant and that the inability to receive the full allotment applied does not make the Respondents liable for breach of contract. The portion of the Judgment quoted under Ground 12 of the Appellant?s Notice of Appeal which is at page 321 of the Records of Appeal cannot therefore be held as the ratio decidendi of the

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decision of the Court to dismiss the Appellants claims one and two with respect to whether the Respondents where liable for breach of contract.

The statement of the learned trial Judge at page 319 of the Records of Appeal is at best an obiter dictum with respect to the findings that the Respondents are not liable for breach of contract which had already been decided when the learned trial Judge considered the first and third claims of the Appellant before it. The further findings of the learned trial Judge at page 322 of the Records of Appeal while concluding on the Appellants second claim before it affirms this point where the learned trial Judge held that: ?It is my finding that the Defendants did not exhibit utmost good faith and transparency in this transaction and breached the fiduciary duty owed the Claimant. If the claim had been for damages for breach of fiduciary duty perhaps the claimant would have succeeded. The court cannot grant his second caiman the face of the facts of this case.? Furthermore, the record of proceedings at pages 301 ? 302 of the Records confirm that after Judgment had been delivered, the learned trial

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Judge made the following statement obiter:
?The Claimant would have succeeded if his claim was for damages for breach of fiduciary duty and full disclosure and for an Order for account reconciliation and payment of what is done to him after reconciliation
The Court is bound by the reliefs claimed in any action and cannot like father Christmas grant a relief not clame.”

In the light of the foregoing therefore, I find merit in the Respondents? submission that Ground 12 of the Notice of Appeal is a ground challenging an obiter dictum and is therefore incompetent. See: MOBIL PRODUCING NIGERIA UNLIMITED Vs. OKON JOHNSON & ORS (Supra), where the Supreme Court per OKORO, JSC stated that: for obiter dicta, though they may have considerable weight, are not rationes decidendi and are therefore not conclusive authority and are not appealable Consequently, issue No. 6 in the Appellant?s Brief which was distilled from Ground 12 of the Notice of Appeal is hereby struck out having been adjudged to be incompetent. On the whole therefore, the Respondent?s Motion on Notice succeeds in part, and

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succeeds only to the extent that Ground 12 of the Notice of Appeal is incompetent and therefore struck out and that Issue No. 6 crafted from the said incompetent ground 12 is also accordingly struck out.

I will now proceed to consider the submissions of the respective parties on the remaining surviving issues for determination in the substantive appeal.

THE SUBSTANTIVE APPEAL
SUBMISSIONS OF COUNSEL FOR THE APPELLANT
ISSUE ONE
Learned counsel for the Appellant while submitting on issue No. 1 referred to Grounds No. 1, 2, 3 and 4 of the Notice of Appeal and the particulars of each; counsel then contended that it is the duty of every trial Court to properly evaluate the cases of the parties; to show proper understanding of the issues; to ascribe probative value to the evidence of witnesses and documentary evidence tendered and admitted; and that any failing in these duties leads to a misdirection which is a ground to set aside any such Judgment. Learned counsel submitted that misdirection occurs when on the issue of facts, the case of a party or the applicable laws raised were not fairly considered by the trial Judge; or if he

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misconceives the issue, summarizes the evidence inadequately or incorrectly, or makes a mistake of law. Counsel further submitted that once the evidence before the trial Court does not justify the findings; it is a Misdirection. Learned counsel referred to OKONKWO Vs. UDOH [1997] 9 NWLR (Pt. 519) Pg. 17 and NWADIKE Vs. IBEKWE [1987] 2 NSCC Pg. 1219 to urge this Court to hold that the trial Court in the instant case misdirected itself.

Learned counsel further submitted that the trial Court failed to evaluate the defense of the Respondents and the testimony of their Witness, Amaka Obiora under cross-examination; that the learned trial Judge did not indicate whether or not he believed her testimonies; that there were obvious contradictions in the statements of the said witness. Counsel submitted that the trial Judge still dismissed the Appellant?s claim without proper evaluation of the evidence before the lower Court and despite the inconsistencies in the evidence of Amaka Obiora. Learned counsel referred to ADEMESO Vs. OKORO [2005] All FWLR; TUKUR Vs. UBA [2013] 4 NWLR (Pt. 1343) Pg. 90 at 128, Para. E – H (Pt. 1398) Pg. 497; OGBECHIE Vs. ONOCHIE

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[1986] 2 Pg. 484 and UDENGWU Vs. UZUEGBU [2003] 9 MJSC Pg. 70 at 78-79, Paras. G ? A to submit that a Judgment of a Court must demonstrate that the Court understood the case before it and elicit an open and full consideration of the issues properly raised by the parties in their pleadings as supported by evidence; but that the decision herein is perverse and against the weight of evidence.

Learned counsel for the Appellant argued that a perverse decision can arise as in the instant case where the Court ignores the fact or evidence; or misconceived the thrust of the case as presented; or took into account irrelevant matters which substantially formed the basis of its decision; or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or committed various errors that faulted the case beyond redemption and thereby occasioning a miscarriage of justice. Counsel referred to paragraph 26 of the Appellant?s Statement of Defense at page 103 of the Records of Appeal to submit that the trial Court failed to properly evaluate the pleadings and evidence of the parties and failed to reconcile Exhibit C14 at

28

page 81 of the Records of Appeal which establishes the allegation of fraud which would have vitiated the entire transaction.

Learned counsel further submitted that the learned trial Judge failed to consider, evaluate or attach any probative value to the various correspondences that emanated between the Appellant and his Solicitor; and that the decision did not reflect the answers elicited under cross-examination. Counsel cited ISHOLA Vs. U.B.N. LTD [2005] 6 NWLR (Pt. 922) Pg. 422; BALOGUN Vs. AGBOOLA [1974] 10 SC Pg. 111 and TUKUR Vs. UBA (Supra) and then urged this Court to resolve Issue No. 1 in favour of the Appellant; set aside the Judgment of the lower Court for reasons of perversity; and grant all the reliefs sought by the Appellant at the trial Court.

ISSUE TWO
Learned counsel referred to Grounds 5 and 6 of the of the Appellant?s Notice of Appeal and the particulars of error furnished in support of each; counsel further submitted that the learned trial Judge suo motu raised a preliminary issue that was not canvassed by either of the parties in their Written Address. Learned counsel contended that the learned trial Judge ought to

29

have invited the parties to address the lower Court on the issue of competence or otherwise of the Appellant?s Reply dated 25th October, 2013; and that having failed to do so, the learned trial Judge had no jurisdiction to make pronouncement on the competence of the said Reply. Counsel further submitted that in the alternative, assuming but without conceding that the trial Court was right; the law is settled that pleadings do not constitute evidence and a Defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the Plaintiff notwithstanding his general traverse.

Learned counsel cited LEWIS AND PEAT (NRI) LTD Vs. AKHIMIEN [1976] 7SC Pg. 157 and BUA Vs. DAUDA 9 MJSC Pg. 173 at 184, Paras. E ? G and urged this Court to hold that the Appellant?s Reply at the lower Court dated 25th October, 2013 is competent and is effective denial of the Amended Statement of Defense and that oral evidence having been led on the said Reply, cannot be deemed as abandoned. Counsel referred to JOHN SHOY INT?L LTD Vs. A.E.P.B. [2013] 8 NWLR (Pt. 1357)

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Pg. 625 at 638, Paras. B ? C to submit that the trial Court having granted extension of time to the Appellant to file a Reply turned around to find that because the Appellant did not file Additional Witness Statement on Oath, the Reply is deemed abandoned. Relying on EGHAREVBA Vs. OSAGIE [2009] 18 NWLR (Pt. 1173) Pg. 299, counsel urged this Court to hold that the findings of the lower Court that the Appellant?s Reply is erroneous, perverse, amounts to denial of fair hearing and therefore occasioned grave miscarriage of justice.

Learned counsel further cited AHMED Vs. CBN [2013] 11 NWLR (Pt. 1365) Pg. 352 at 368, Para. B ? C and argued that evidence led at the trial covered the issues which had been joined by the parties and averred to in both the Amended Statement of Claim and Reply; and that even if no reply was filed; no new issue was raised in the Amended Statement of Defense. Counsel further submitted that even if no witness statement on oath is filed; the Court still has a duty to ascertain the veracity and authenticity of facts deposed in the further Witness Statement of Amaka Obiora which did not raise any issue different from the

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earlier deposition. Learned counsel further submitted that the trial Court did not point out any portion of the further Witness Statement of Amaka Obiora that affected the Appellant?s case to warrant the dismissal of his case. Counsel relied on ISIKWENU Vs. IROH [2013] 11 NWLR (Pt. 1365) Pg. 256 (CA) to submit that it is only evidence at variance with pleading that goes to no issue. Counsel also made reference to the provisions of Order 15 Rule 9 and Order 18 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012 to submit that issues were already joined by the parties and no new issue was raised in the Amended Statement of Defense; and that the Rules of Court do not provide for the filing of additional or further witness statement in support of a Reply. Learned counsel submitted that the conclusion by the trial Court that the Reply of the Appellant dated 25th October, 2013 is deemed abandoned is erroneous in law; and unsupported by Order 18 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012; Counsel urged this Court to reject the conclusion of the lower Court and hold that the said Reply is competent
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ISSUE THREE
Learned counsel referred to Issue No. 7 and the particulars and then referred to AHMED Vs. CBN (Supra) and pages 188-189 of the Records of Appeal to submit that the Appellant contended before the lower Court that when a contract is performed in a way that it totally deviates from what was contemplated by the parties, then a breach has occurred. Counsel argued that the Respondents in the instant case breached the fundamental elements of the contract between the parties. Counsel submitted that there is no credible evidence in support of the loan agreement of N4,000,000.00 and letter of offer of N6,000,000.00; that the specific instruction to purchase specific shares were not carried out especially the last instruction to purchase Access Bank and IBTC Shares; and that there was no communication of returned money to the Appellant to enable him make informed decisions. Learned counsel further submitted that the contribution of the Appellant was not fully utilized; that the unutilized money was retained by the 1st Respondent even after the expiration of the facility by effluxion of time; that the volume and value of shares purchased with the Appellants money is

33

not known to the Appellant even after the demand made by the Appellant through Exhibits C6, C7 and C9.

Learned counsel also contended that the Respondents received upfront payment of N126, 000.00 as management and administrative fees; that there was breach of fiduciary duty by the Respondents; that as professionals knowledgeable in relation to the transaction, the Respondents at all material times were in full control of the transaction and all losses arising from their negligent management of the transaction cannot be born at all by the Appellant. Counsel referred to AHMED Vs. CBN (Supra) and PAN BISBILDER (NIG) LTD Vs. FIRST BANK OF NIG. LTD [2000] 1 NWLR (Pt. 642) Pg. 684 to submit that in the light of the breach by the Respondents, the contract stands discharged; and that the lower Court ought to but failed to follow the decision in AHMED Vs. CBN (Supra). Learned counsel urged this Court to resolve this issue in favour of the Appellant and hold that the contract between the Appellant and Respondents was discharged by the breaches by the Respondents.

ISSUE FOUR
Learned counsel referred to Grounds 7, 8 and 9 of the Appellant?s Notice of

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Appeal; and argued that the trial Court?s reliance on Section 125 of the Companies and Allied Matters Act, Cap C21 LFN 2004 (CAMA) shows that the learned trial Judge misunderstood the Appellant?s case. counsel submitted that the question of whether it was the duty of a Company to allot its shares was not an issue before the lower Court; that the issue before the trial Court was the failure of the 2nd Respondent to carry out the instructions of the Appellant and the failure to inform the Appellant of the fact that the shares he applied to buy were not allotted and that the money as purported by the Respondents was contributed by the 1st Respondent was not utilized; and that the Appellant should be allowed to rescind or repudiate the contract for breach. Learned counsel referred to UDENGWU Vs. UZUEGBU (Supra) to argue that the reliance by the trial Court on Section 125 (CAMA) to exculpate the Respondents from liability is perverse; and that since the trial Court was not called upon to interpret Section 125 of CAMA, it had no jurisdiction to decide the case before it on the basis of the power of the company to allot its shares.

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Learned counsel further submitted that there were various admissions of liability by the Respondents as well as in the Statement on Oath of their sole witness but that the trial Court failed to make findings on the said admissions. Counsel argued that where admissions of facts have been made either on pleadings or otherwise; the parties in whose favour the admission is made at any stage of the matter can apply to the Court for Judgment. Counsel referred to Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and contended that paragraph 19 of the Statement of Defense is an admission of liability that there was unutilized funds belonging to the Appellant in the custody of the Respondents and that the failure of the trial Court to consider such an admission led to miscarriage of justice.

Learned counsel referred to ANASON FARMS LTD Vs. NAL MERCHANT BANK LTD [1994] 3 NWLR (Pt. 331) Pg. 241 at 251, Ratio 1 & 3 and further contended that Section 20 of the Evidence Act, 2011 supports entering Judgment on admitted facts that there was utilized funds and that share certificates of the Claimant are still in the custody of the Respondent because the

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1st Respondent relied on Exhibit C14 to claim that the Appellant was indebted to it to the tune of N10,000,000.00. Counsel urged this Court to hold that the trial Court failed in its duty by failing to consider the various admissions on the pleadings and under cross-examination thereby failing to enter judgment in favour of the Appellant on the admitted facts; Counsel also urged this Court to allow this appeal on this ground.

ISSUE FIVE
Learned counsel for the Appellant contended under this issue which was distilled from Ground 11 of the Notice of Appeal that there is no evidence to prove that the Appellant is indebted to the Respondents and that the Respondents did not show the Court how they arrived at the N6.9 Million they claimed as set off. Counsel submitted that the trial Court was wrong to have held that this issue is not important whereas it established the allegation of fraud on the part of the Respondents. Learned counsel further submitted that the trial Court wrongly rejected Exhibit C14 which is the 1st Respondent?s letter dated 16th February, 2010 and contained at page 81 of the Records of Appeal. Counsel argued that the fact

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that Exhibit C14 was written after the institution of this action does not make it inadmissible since it is pleaded and relevant; it establishes the allegation of fraud made against the Respondents; and that it contradicts the claim by the Respondents that the sum of N6.9 Million was used to set off the purported indebtedness of the Appellant.

Learned counsel argued further that the rejected Exhibit C14 shows the unreliability of the oral testimony of the Respondents? witness – Amaka Obiora; and that it shows the defense of the Respondents as being hazy, unclear and a sham with no probative value. Counsel urged this Court to set-aside the decision of the trial Court rejecting Exhibit C14 admit and act on the said relevant and pleaded piece of evidence. Learned counsel urged this Court to resolve this issue in favour of the Appellant and in conclusion cited Sections 20 and 21 of the Evidence Act, 2011; ABSULMUMUNI IBRAHIM Vs. DAIHIRU CIROMA CA/K/300/S/05 delivered on 26th May, 2006; MOSHESHE GEN. MERCHANT LTD Vs. NIGERIA STEEL PRODUCTS LTD [1987] Vol. 118 (Pt. 1) NSCC Pg. 502 at Paras. 10-20;VICTABIO VENTURES LTD Vs. W. VAN DER ZWAN & Z.N.B.V.

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[2009] All FWLR (Pt. 490) Pg. 756 (CA) and YESUFU Vs. A.C.B. [1976] 10 NSCC Pg. 202 at 210, Paras. 40-45 to urge this Court to allow this appeal and grant the reliefs sought contained in the Statement of Claim dated 13th of March, 2009 at page 6 of the Records of Appeal.

SUBMISSION OF COUNSEL FOR THE RESPONDENTS
ISSUE ONE
On this issue, learned Counsel for the 1st and 2nd Respondents referred to Exhibits D1 and C15 as the contracts between the parties; and that Exhibits C1 ? C5 and D3 ? D4 are the evidence of performance of the contract between the parties. Counsel referred to GENERAL OIL LIMITED Vs. F.S.B. INTERNATIONAL BANK PLC [2005] All FWLR (Pt. 277) 1007 at 2015 and ARJAY LTD & 2 ORS Vs. AIRLINE MANAGEMENT SUPPORT LTD (2003) 2-3 SC Pg. 1 at 44-45 to submit that the duties, rights and liabilities of parties to a contract must be determined within the confines of the of the contract document. Learned counsel referred to paragraph 7 of the Appellant?s Statement of Claim at pages 3 ? 6 of the Records of Appeal and the testimony of the Appellant at pages 241 ? 249 of the Records of Appeal to argue that the

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Appellant himself admitted in his pleadings and under cross-examination that the Respondents complied with the terms of Exhibit D1 and that the sum of N5, 874, 000.00 was paid into his account with 2nd Respondent for the purpose of purchasing shares on the Appellant?s behalf as agreed in Exhibit D1 contained at page 51 of the Records of Appeal. Counsel cited EZEMBA Vs. IBENEME [2004] 14 NWLR (Pt. 894) Pg. 617 at 690 to submit that admissions are binding on the party making it as well as on the Court.

Learned counsel for the Respondents further referred to Exhibit C15 at page 53 ? 55 of the Records of Appeal to submit that the Appellant authorized the 2nd Respondent, as his appointed Stock Broker, to utilize the contract sum of N10,000,000.00 which was paid into the Appellant?s share account to purchase shares of companies which the Appellant was to instruct. Counsel argued that by Exhibit C15, the parties agreed that the mode by which the Appellant shall instruct the 2nd Respondent on the shares to purchase is for him to fill, sign and submit a Share Application/Mandate Form to the 1st Respondent who shall forward same to the 2nd

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Respondent. Learned counsel further referred to Exhibit C1 at page 57 of the Records of Appeal to submit that the said Exhibit C1 which was tendered in evidence by the Appellant himself showed that the 1st Respondent credited the loan facility into the Appellant?s account with the 2nd Respondent; and that the 2nd Respondent carried out the instructions of the Appellant to apply and purchase First Bank Shares.

Learned counsel also referred to Exhibit C2 ? C5 at pages 74 ? 77 of the Records of Appeal which were tendered by the Appellant as well; counsel argued that these set of evidence are application forms/mandates filled and submitted to the Respondents by the Appellant instructing the 2nd Respondent to utilize the returned funds from First Bank of Nigeria Plc to purchase the shares of Access Bank Plc, Zenith Bank Plc and IBTC Charted Bank Plc. Counsel referred to the Respondents? Amended Statement of Defense to submit that the Respondents denied all the allegations contained in the Appellant?s Statement of Claim and tendered Exhibits D3 and D4 contained at pages 56 and 94 of the Records of Appeal respectively. Learned

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counsel referred to the findings of the lower Court at pages 305 ? 308 of the Records of Appeal to submit that it is clear that the lower Court correctly identified the relevant documents in which the rights and liabilities of the parties were set out; and that after considering the issues formulated by the parties the learned trial Court properly evaluated the contract documents at pages 310 ? 317 of the Records of Appeal and then made conclusive findings between pages 317 ? 323 of the Records of Appeal.

Learned counsel submitted that the decision of the lower Court was a product of careful evaluation of the evidence before it; and that the decision of the lower Court to dismiss the claims of the Appellant for breach of contract; refund of the contract sum; and general damages for breach of contract was consistent with its findings that the Respondent carried out the instructions of the Appellant as contained in the mandates by applying for and purchasing the shares now in the name of the Appellant. Counsel referred to KOLAWOLE INDUSTRIAL COMPANY LTD Vs. A.G. FEDERATION & 2 ORS [2012] 14 NWLR (Pt. 1320) Pg. 221 at 245 and contended

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that the submissions of the Appellant that the decision of the lower Court is perverse is unsubstantiated.
?
Learned counsel further submitted that the allegations in the Appellant?s Brief that the lower Court failed to evaluate the documentary evidence are baseless and erroneous. Counsel submitted that the lower Court properly evaluated the documentary evidence and oral testimony of witnesses before it and made the proper inference therefrom and made accurate findings and came to a correct decision in the suit. Learned counsel for the Respondents further submitted that the decision of the lower Court cannot be faulted; and that the Appellant did not state which documents the lower Court failed to evaluate or which inferences the lower Court failed to draw from them. Counsel submitted that an Appellant has a burden to place sufficient materials before the appellate Court upon which the Court will set aside the decisions appealed against; and that the bare assertions that the decision of the lower Court is perverse and against the weight of evidence is not enough in law, learned counsel urged this Court to resolve this issue in favour of the

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Respondents.

ISSUE TWO
Learned counsel contended that the arguments of the Appellant under Issue No. 4 particularly at paragraph 8.1 of the Appellant?s Brief are misconceived. Counsel referred to paragraphs 22 and 23(i) ? (vi) of the Appellant?s Statement of Claim at pages 3 ? 6 of the Statement of Claimand the Appellant?s Final Written Address at page 165 ? 201 particularly page 188 of the Records of Appeal to submit that the main allegation of the Appellant was that the Respondents did not utilize the contract sum to purchase the shares of First Bank of Nigeria Plc, Access Bank Plc, Zenith Bank Plc and IBTC Charted Bank Plc which he applied for. Learned counsel contended that the Appellant had apparently put the non-purchase/allotment of shares in issue and equally made submissions in respect of same in the Appellant?s Final Written Address. Counsel further referred to the Respondent?s Final Written Address at page 135 of the Records of Appeal to submit that the Respondent equally joined issues with the Appellant and made it clear that they utilized the contract sum to purchase/apply for the shares;

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but that the decision to whether or not to allot shares of any of the named banks does not rest with the Respondents but with the said Banks.

Learned counsel submitted that the Respondents also argued in their Reply on points of law at page 145 of the Records of Appeal that the Appellant failed to lead any evidence to show that they are in control of the allotment of shares in First Bank of Nigeria Plc, Access Bank Plc, Zenith Bank Plc and IBTC Charted Bank Plc. Counsel submitted in resolving the said issue between the parties rightly relied on Section 125 of CAMA which regulates the allotment of Shares in Nigeria and came to the conclusion that the Respondents had done all that was required of them by the contract if they forwarded the contract sum and mandates filled by the Appellant to the said Banks. Learned counsel referred to Section 125 of CAMA and argued that the decision of the lower Court is based on sound understanding of the law and a clear appreciation of the arguments proffered by the parties on the issue.
?
Learned counsel for the Respondents submitted that the distinction which the Appellant attempted to make between

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utilization/purchase of shares and actual allotment of shares is of no moment as the section applies to both scenarios. Counsel relied on IBRAHIM Vs. OJONYE [2012] 3 NWLR (Pt. 1286) Pg. 108 at 135 and KARIMU & ANOR Vs. LAGOS STATE & ANOR [2012] 5 NWLR (Pt. 1294) Pg. 620 at 651 to submit that the lower Court had jurisdiction to rely on the provisions of Section 125 of CAMA even if none of the parties expressly relied on it because the Courts are deemed to be repositories of the law and the law rests in the bosom of the Court. Learned counsel further contended that assuming, without conceding, that the contentions of the Appellant are valid, the lower Court was still right to have held that the Respondents had done all that was required of them under the contract and therefore not liable to the Appellant for breach of contract because there was evidence before the lower Court that the Respondents indeed utilized the entire contract sum to apply for shares as instructed by the Appellant. Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUES THREE & FOUR
Learned counsel for the Respondents argued issues no. 3 and 4

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together. On the failure of the Appellant to file any Written Statement on Oath in support of his Reply to Amended State of Defense; counsel referred to AREGBESOLA & ORS Vs. OYINLOLA & ORS [2011] 9 NWLR (Pt. 1253) Pg. 458 at 596 ? 597 to submit that it is trite that pleadings which are not supported by evidence are deemed abandoned and go to no issue. Counsel contended that the Appellants Reply at pages 109 ? 113 of the Records of Appeal was not supported by any witness written statement on oath; and that the only written statement which the Appellant adopted is the one at pages 8 ? 11 of the Records of Appeal filed in support of the Writ of Summons and Statement of Claim. Learned counsel referred to the finding of the trial Court in this regard as contained at pages 235 ? 236 of the Records of Appeal to submit that no witness statement on oath was adopted in proof of the new facts contained in the Reply.
?
Learned counsel further submitted that since the Appellant has admitted that he did not file any witness written statement on oath in support of his Reply; the argument that the trial Court ought not to have held that the

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Reply is deemed abandoned because evidence relating to the said Reply was extracted under cross examination is not the correct position of the law. Counsel referred toEZEMBA Vs. IBENEME [2004] 14 NWLR (Pt. 894) Pg. 617 at 691-692; UNION BANK OF NIGERIA PLC Vs. ASTRA BUILDERS (W.A) LTD [2010] 5 NWLR (Pt. 1186) Pg. 1 at 12; NZE B. CHIGBU Vs. TONIMAS NIG. LTD [1999] 3 NWLR (Pt. 593) Pg. 115 at 152 and SPDC Vs. CHIEF JOEL AMARO [2000] 4 NWLR (Pt. 675) Pg. 248 at 270 to submit that it is wrong for the Appellant who failed in his duty to prove the facts contained in his Reply by filing a witness statement on oath to attempt to rely on the cross-examination of the Respondent to establish his case. Learned counsel submitted that evidence elicited under cross examination by an adverse party cannot replace the burden on a party to prove its case.
?
Learned counsel further submitted that the contention of the Appellant that his right to fair hearing was infringed upon by the decision of the lower Court deeming his Reply as abandoned is a misconception. Counsel submitted that the law is clear that all the Court needed to do was to afford parties the opportunity to

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present their cases; and that it will not amount to lack or breach of the right to fair hearing if a party fails to utilize the opportunity presented and/or adopts a procedure which is antithetical to its case. Learned counsel referred toR.C.C. LTD Vs. OKPEGBORO [2000] 2 NWLR (Pt. 645) Pg. 367 at 374; AMORI Vs. IYANDA [2008] 3 NWLR (Pt. 1074) Pg. 250; MINGI SERVICES LTD Vs. IMAOYE [2003] FWLR (Pt. 143) Pg. 341 at 346 ? 347 and further submitted that parties are bound by the strategies of their counsel. Counsel further submitted that the reliance by the Appellant on the provisions of Order 15 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules, 2012 will also not avail the Appellant as the said rule of Court does not alleviate the obligation to file a witness statement on oath in support of the new facts contained in his Reply. Learned counsel urged this Court to affirm the decision of the lower Court wherein it held that the Reply of the Appellant is deemed abandoned since it was not supported by evidence.

With Respect to the application of the principle in AHMED Vs. CBN (Supra) which the Appellant argued the trial Court misapplied;

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counsel for the Respondents contended that the Appellant admitted that the Respondents performed the contract; but his only complaint is that the Respondents did not perform the contract in accordance with the terms of the contract document. Counsel submitted further that the trial Court relied on the principles in AHMED Vs. CBN (Supra) and rightly concluded at page 319 of the Records of Appeal that since there is no breach of contract as the Respondents applied the whole of the N10 Million in fulfilling the mandate and instruction of the Appellant. Learned counsel submitted that the Supreme Court in AHMED Vs. CBN (Supra) made it clear that a party who has performed the contract in consonance with the terms cannot be said to have been in breach thereof. Learned counsel referred to TSOKWA OIL MARKETING CO. Vs. B.O.N LTD [2002] 11 NWLR (Pt. 777) Pg. 163 at 200 SC and PAN BISBILDER (NIG) LTD Vs. FIRST BANK OF NIG. LTD (Supra) to submit that contact between the parties was fully executed and cannot be repudiated by the Appellant. Counsel urged this Court to resolve this issue in favour of the Respondents.

ISSUE FIVE
Learned counsel for the Respondents

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formulated this issue in response to the Appellants issue No. 6 which had been struck out in the determination of the Respondent?s Motion on Notice challenging same. Therefore, the submissions of the Respondents under this issue shall consequently be discountenanced as they have become irrelevant and therefore spent. The Respondents? counsel however referred to Clause 12 of Exhibit C15 at pages 53 ? 55 of the Records of Appeal to submit that the Appellant had waived his right to claim and/or insist on breach by the Respondents in the execution of the contract; counsel submitted that the parties did not contemplate and factor claims for general damages as a consequence to be visited on any party who defaults in performing the contract. Counsel referred to AHMED Vs. CBN (Supra) and HADLEY Vs. BAXENDALE (1854) 9 Exchequer 341 and in conclusion urged this Court to dismiss this appeal and affirm the decision of the lower Court.

RESOLUTION
It is important to state that the learned Counsel for the Appellant in the Reply Brief did not respond to the issues raised in the Respondent?s Brief; the Appellant?s counsel mainly

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responded to the arguments made in respect of the Motion on Notice, that is to say the objection raised by the Respondents which had already been considered and determined. I will now proceed to determine the substantive appeal on the submissions in the Appellant?s and Respondents Briefs.

ISSUE ONE
For the purpose of this appeal, I will consider the issues of the parties together as they relate to each other. The Appellant?s issue No. 1 is: ?Whether the Trial Court?s failure to properly evaluate the documentary evidence tendered and admitted and the record of proceedings of the Court have not led to a miscarriage of justice.? On the other hand, the Respondents? issue No. 1 is ?Whether the lower Court properly evaluated the evidence before it and was right to have found and held that the Appellant failed to prove its allegation of breach of contract and proceeded to dismiss the Suit No: LD/395/2009: Mr. Paul Nwabufo vs (1) United Bank for Africa Plc (2) U.B.A Stock Brokers Limited.? The Appellant urged this Court to hold that the trial Court in the instant case misdirected itself; that the trial Court failed

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to evaluate the defense of the Respondents and the testimony of their Witness, Amaka Obiora under cross-examination; that the learned trial Judge did not indicate whether or not he believed her testimonies; that there were obvious contradictions in the statements of the said witness; and that the learned trial Judge still dismissed the Appellant?s claim without proper evaluation of the evidence before the lower Court and despite the inconsistencies in the evidence of Amaka Obiora. The Appellant further argued that the decision herein is perverse and against the weight of evidence; that the trial Court failed to properly evaluate the pleadings and evidence of the parties and failed to reconcile Exhibit C14 which establishes the allegation of fraud which would have vitiated the entire transaction; and that the learned trial Judge failed to consider, evaluate or attach any probative value to the various correspondences that emanated between the Appellant and his Solicitor; and that the decision did not reflect the answers elicited under cross-examination.
?
The Respondents on the other hand referred to Exhibits D1, C15, C1 ? C5 and D3 ? D4

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and submitted that the duties, rights and liabilities of parties to a contract must be determined within the confines of the of the contract document. The Respondents argued that the Appellant himself admitted in his pleadings and under cross-examination that the Respondents complied with the terms of Exhibit D1 and that the sum of N5, 874, 000.00 was paid into his account with 2nd Respondent for the purpose of purchasing shares on behalf of the Appellant as agreed in Exhibit D1; and that admissions are binding on the party making it as well as on the Court. The Respondents further argued that the Appellant authorized the 2nd Respondent, as his appointed Stock Broker, to utilize the contract sum of N10,000,000.00 which was paid into the Appellant?s share account to purchase shares of companies which the Appellant was to instruct; that by Exhibit C15, the parties agreed that the mode by which the Appellant shall instruct the 2nd Respondent on the shares to purchase is for him to fill, sign and submit a Share Application/Mandate Form to the 1st Respondent who shall forward same to the 2nd Respondent; that Exhibit C1 tendered in evidence by the

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Appellant himself showed that the 1st Respondent credited the loan facility into the Appellant?s account with the 2nd Respondent and that the 2nd Respondent carried out the instructions of the Appellant to apply and purchase First Bank Shares.
?
The Respondent submitted further that Exhibit C2 ? C5 which were tendered by the Appellant as well are application forms/mandates filled and submitted to the Respondents by the Appellant instructing the 2nd Respondent to utilize the returned funds from First Bank of Nigeria Plc to purchase the shares of Access Bank Plc, Zenith Bank Plc and IBTC Charted Bank Plc; that Exhibits D3 and D4 were tendered by the Respondents to challenge the Appellant?s claim. It was argued that the lower Court correctly identified the relevant documents in which the rights and liabilities of the parties were set out; and that after considering the issues formulated by the parties the learned trial Court made a decision which is a product of careful evaluation of the evidence before it; and that the decision of the lower Court to dismiss the claims of the Appellant for breach of contract; refund of the contract sum; and

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general damages for breach of contract was consistent with its findings that the Respondent carried out the instructions of the Appellant as contained in the mandates by applying for and purchasing the shares now in the name of the Appellant. The Respondent argued that the decision of the lower Court cannot be faulted; that the Appellant did not state which documents the lower Court failed to evaluate or which inferences the lower Court failed to draw from them; that an Appellant has a burden to place sufficient materials before the appellate Court upon which the Court will set aside the decisions appealed against; and that the bare assertions that the decision of the lower Court is perverse and against the weight of evidence is not sufficient in law to justify intervention and setting aside.
?
The law is trite and has been restated in so many decisions of this Court and the Supreme Court that the evaluation of evidence is primarily the duty or business of the Trial Court or Tribunal with which an Appellate Court will ordinarily not interfere unless it is shown that the trial Court has goofed or committed a blunder in its evaluation of the evidence made

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available to it. See EHOLOR Vs. OSAYANDE [1992] NWLR (Pt. 249) 524; (1992) LPELR-8053 (SC), Pg. 43-44, Paras. G ? A; OKUNZUA Vs. AMOSU [1992] NWLR (Pt. 248) 416; (1992) LPELR-2531 (SC), Pg. 20, Paras. D ? E; TUKUR Vs. UBA & ORS (2012) LPELR-9337 (SC), Pg. 45, Paras. B ? E where ARIWOOLA JSC held that: ?Generally, and it is settled law that the evaluation of evidence adduced and ascription of probative value or weight to such evidence is the primary duty of the trial judge who saw and heard the witnesses
In MAMUDA Vs. STATE (2019) LPELR-46343 (SC), Pg. 15-16, Paras. F ? B, His Lordship MUHAMMAD JSC held that: ?The task of evaluating evidence and ascribing probative value to it is the primary duty of the trial Court. The lower Court and indeed this Court, unlike the trial Court, are handicapped when evaluation of evidence, as in this case, is made an issue See also UBA PLC Vs. J.I. EFEMINI & SONS (2018) LPELR-44150 (CA), Pg. 19-20, Paras. C ? C. The evaluation of evidence and ascription of probative values to the evidence so tendered and evaluated is the exclusive preserve of

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the trial Court that had the opportunity to see and hear the parties before it; and an Appellate Court cannot interfere with that duty of the trial Judge except in special circumstances and such special circumstances do not include that the appellate Court would have exercised such discretion differently. In ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD [1992] NWLR (Pt. 247) Pg. 319; (1992) LPELR-511 (SC) Pg. 20-21, Paras. G ? The Supreme Court held that:
?It is not in all cases that an appeal Court will interfere with the exercise of discretion by a trial Judge, simply because it did not favour one of the parties litigating before him. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court, for the moment you do that, the discretion is fettered.”
Similarly, in OLATUBOSUN Vs. TEXACO NIG PLC (2012) LPELR-7805 (SC) Pg. 18, Paras. C ? D the Supreme Court of Nigeria held that: an appellate Court like ours will not interfere with the exercise of discretion of the Court

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below merely because this Court would have acted differently. ?this Court will only interfere where the discretion exercised is manifestly wrong, arbitrary, reckless and injudicious.? Also, MUHAMMAD JSC in FALEYE & ORS Vs. DADA & ORS (2016) LPELR-40297 (SC) Pg. 33-34, Paras. E ? C, held that:
This Court has stated it times without number that it is none of its functions or indeed that of an appellate Court to substitute its own views of the evidence for those of the trial Court that is better placed to deal with those matters. The appellate High Court could only have interfered with findings of facts of the trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice? …However, where the bone of contention as to evaluation of evidence has to do with evaluation of documentary evidence, this Court is in a vantage position as the trial Court to examine and evaluate documentary evidence…”
See: also CPC Vs. OMBUGADU & ANOR (2013) LPELR-21007 (SC) Pg. 63-64, Paras. G ? B where NGWUTA JSC held

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that:
“An appellate Court enjoys the same position as the trial Court in evaluation of documentary evidence as in this case where the controversy is limited to the interpretation of documents. Where the findings of the trial Judge on documentary evidence is perverse an appellate Court will employ its appellate power to correct the perversity…”

It is however important to state at this point that where, as in the instant case, the contention of the parties is based on the agreements between the parties and the several other documents of instruction and performance of the agreement; neither the trial Court nor this Court as an Appellate Court will have the power to re-write the contract between the parties or give any different meaning to the evidence presented. The law is also settled beyond dispute that parties and indeed the Court are bound by the terms of an agreement lawfully entered by the parties. See LARMIE Vs. D.P.M.S LTD [2005] 18 NWLR (Pt. 958) Pg. 438; (2005) LPELR-1756 (SC) Pg. 31, Paras. D ? E where TOBI, JSC (of blessed memory) held that: “The duty of a Judge is to interpret the contract entered between the parties in the light of

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their clear intention as conveyed by the language.?
In ODUTOLA Vs. PAPERSACK (NIG) LTD [2006] 18 NWLR (Pt. 1012) Pg. 470; (2006) LPELR-2259 (SC) Pg. 28-29, Paras. F ? C my law lord, TOBI, JSC (of blessed memory)held as follows and I quote:
Parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a Court of law can only interpret the agreement strictly in its legal content and arrive at a conclusion on the law and the law alone in respect of it. A Court of law cannot construe the agreement to covey the meaning ?as understood? by the parties, if it is different from the real legal meaning of the agreement
See: IHUNWO Vs. IHUNWO & ORS (2013) LPELR-20084 (SC) Pg. 41-42, Paras. E ? B and OBANYE Vs. UNION BANK (2018) LPELR-44702 (SC) Pg. 16-22, Paras. B ? A where NWEZE JSC held that: ?If the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound by it. It is not the function of a Court to make a contract for the parties or to rewrite the one which they have

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made? Thus, unless it is established in evidence that a party was fraudulently led into the agreement, parties are bound by the written and express terms of their contract? In other words, in the absence of fraud, duress and undue influence or misrepresentation, the parties are bound by their contract

I have carefully read the Judgment of the lower Court particularly at pages 303 ? 319 of the Records where the first, second and third claims of the Appellant were dismissed. The Appellant?s claims at the lower Court as contained in the Statement of Claim at page 6 of the Records of Appeal is for:
“1. A declaration that the share plus facility offered the claimant by the 1st defendant was not utilized by the 2nd defendant for the purpose for which it was given and the claimant is entitled to repudiate that contract.
2. ?
3. General damages in the sum of N10,000,000.00 against the Defendants.
4.

In considering the suit before it, the learned trial Judge found at page 308 of the Records of Appeal as follows:
?From the evidence led in this trial and addresses of

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counsel, I hereby distill two issues for my determination.
These are:-
1. Whether the Defendants breached the terms of the Share plus Contract.
2. Whether the Claimant proved his entitlement to the reliefs claimed in this action.?

At page 310 ? 311 of the Records of Appeal, the learned trial Judge proceeded to consider the evidence placed before the lower Court and found as follows:
?Exhibit D1 is the offer letter of the 1st Defendant to the Claimant for N6m share plus facility. The purpose of the loan as stated in the offer letter is ?to acquire shares through UBA Stockbrokers Limited?. The tenor of the facility is maximum period of 12 months. Repayment is on demand and/or expiration of the facility whichever is earlier. Security for the facility is the shares purchased with loan. The shares are to be placed under the custody of the bank to be managed by UBA Stockbrokers Limited during the tenor of the loan.
The condition precedent as stated in Exhibit D1 is that the Claimant makes available equity of 40 percent of the value of shares to be purchased and that he completes all forms and executes all

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agreements required for the fulfillment of the statutory requirements.
The bank added a condition, ?Notwithstanding the terms and conditions of this offer, the Bank reserves the right to withhold disbursement and/or demand immediate repayment and/or alter the term at any time?.
The claimant accepted the terms and conditions and signed the acceptance column on the 12th of June 2007.
Parties also executed Tripartite Share Trading Agreement Exhibit C15
(Underlined for emphasis)

The learned trial Judge reproduced the said Exhibit C15 which is contained at page 53 ? 55 of the Records of Appeal. The learned trial Judge then found at page 314 ? 319 of the Records of Appeal that:
?It is no where stated in Exhibits D1 and C15 that the Defendants are to buy only First Bank Shares. The Claimant admitted this under cross examination.?
I accordingly reject the submission of learned Claimant counsel in several pages of his address that there was an agreement to buy only First Bank of Nigeria Plc shares. There is no such agreement.
The agreement in Exhibit C15 is that the

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borrower (the Claimant) shall fill, sign and submit to the lender (1st Defendant) the share application form indicating the company(s) units to be purchased and the value.
The case of the Defendant in paragraph 9 of the amended statement of defence is that the claimant gave instruction to it to buy First Bank Shares which it carried out. The shares applied for were not fully allotted and the funds for un- allotted shares were returned.
Even though the Mandate Form to buy First Bank Shares was not tendered, by the admission of the defendant, it received the instruction.
What is admitted need no further proof. This is trite law.
Exhibit C1 is the Claimants Statement of account with the 2nd Defendant. From the statement of account, it is clear that the 2nd Defendant paid for First Bank Shares to the tune of N9,900,000.00. The balance in the account was N100, 000.00 as at 11th of November 2007 after payments which means that the instruction was carried out. ?
The opening balance on the 30th of July 2007 was N10 made up of Claimant?s contribution of N4,126,000.00 and 1st Defendants contribution of N5,874,000.00. Under

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cross-examination, the Claimant admitted that the 1st Defendants contribution was transferred to the 2nd Respondent in his favour.?
He submitted at paragraphs 6.4 and 6.5 pages 20 and 21 of his address that the share plus facility offered the Claimant was not utilized by the 2nd Defendant for the purpose for which I t was given which is to purchase First Bank shares as such there is breach of contract.
The reverse is the case. The Claimant in his pleadings and the evidence tendered, Exhibit C1 proved that the Defendants utilized the N10m as instructed by the Claimant to buy First Bank shares.
After the un-utilized funds were returned, the balance in the accounts shown in Exhibit C1 was N7, 723,000.00.
It is instructive to note that the funds were returned to the account on the 8th of December, 2007. Claimant counsel submitted at page 21 paragraph 6.7 of his address that the claimant was not notified of this till 25th of January 2008.?
This cannot be so because the claimant issued mandates on the 2nd defendant to purchase Access Bank, Zenith Bank and IBTC Chartered Bank shares on the 7th January 2008. The

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Mandates are Exhibits C2,C3 and C4. DW1 admitted that they received this instruction under cross examination….
The Defendants claim that pursuant to the mandate, they bought 12,960 and 9,260 Zenith Bank shares. They could not carry out the mandate to buy Access Bank and IBTC shares because according to DW1 they were informed that the shares were over-subscribed.
It is my finding that the Defendants applied the whole of N10m in fulfilling the mandate and instruction of the Claimant. The inability to receive the full allotment applied does not make the defendants liable for breach of contract and I so hold.
Since there is no breach of contract, the claimant is not entitled to repudiate the contract and is not entitled to damages for breach of contract. The first and third claims fail and are dismissed.?

From the foregoing findings of the learned trial Judge, I am of the view that the learned trial Judge clearly understood the case of the parties before him and meticulously evaluated the evidence placed by the parties before him in arriving at a decision. The Appellants have not shown how the foregoing findings resulted in a miscarriage

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of justice. The law is trite that it is only where the trial Court failed in its duty and the Appellant shows how this has occurred that an appellate Court would embark on interference with the conclusions and the evaluation of evidence carried out by the learned trial Judge, this sparingly happens in special circumstances, which do not include that the appellate Court would have exercised its discretion differently. See MAMUDA Vs. STATE (Supra); UBA PLC Vs. J.I. EFEMINI & SONS (Supra); ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD (Supra); OLATUBOSUN Vs. TEXACO NIG PLC (Supra); and FALEYE & ORS Vs. DADA & ORS (Supra).
In the instant case, the Appellant merely made blanket, open ended and unsubstantiated allegations that the decision of the learned trial Judge is perverse and against the weight of evidence; that the trial Court failed to properly evaluate the pleadings and evidence of the parties; and failed to consider, evaluate or attach any probative value to the various correspondences that emanated between the Appellant and his Solicitor; and that the decision did not reflect the answers elicited under cross-examination. It is not sufficient

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for a dissatisfied, aggrieved, or disgruntled party like the Appellant in this appeal to merely raise the flag of miscarriage of justice and perversity; an aggrieved party who seeks the interference of an Appellate Court to set aside, or reverse the decision of a trial Court especially as it relates to the evaluation of documentary evidence placed before the trial Court must show the error and/or perversity in the decision arrived at by the trial Court. See ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD (Supra) where the Supreme Court held that: ?It is not in all cases that an appeal Court will interfere with the exercise of discretion by a trial Judge, simply because it did not favour one of the parties litigating before him

The only viable point raised by the Appellant is that the learned trial Judge failed to consider and reconcile Exhibit C14 which establishes the allegation of fraud which would have vitiated the entire transaction. The said Exhibit C14 which is the 1st Respondent?s letter dated 16th February, 2010 and contained at page 81 of the Records of Appeal was objected to by the learned Counsel for the Respondents? on

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the ground that the said Exhibit C14 was not pleaded and was written after the institution of the suit. The Appellant had argued that the fact that Exhibit C14 was written after the institution of this action does not make it inadmissible since it is pleaded and relevant; it establishes the allegation of fraud made against the Respondents; and that it contradicts the claim by the Respondents that the sum of N6.9 Million was used to set off the purported indebtedness of the Appellant.

The trial Court did not consider the said Exhibit C14 in its final Judgment apparently because the trial Court had rejected the said Exhibit. In the proceedings of the trial Court on the 31st day of January, 2013 particularly at page 239 of the Records of Appeal, the trial Court found as follows:
?The facts regarding this letter are not pleaded. Paragraph 22 cannot avail the claimant. I sustain the objection. Letter dated 16/2/2010 is marked Exhibit C14 rejected.?

I have carefully perused the said Exhibit C14, it is a letter from the Respondents informing the Appellant of his indebtedness; I will refrain from delving into the admissibility or otherwise

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of the said Exhibit C14 at this stage. However, it is sufficient to state that, assuming the said Exhibit was admitted, the Appellant has not made submissions on how the fact that the Respondents informed him of his indebtedness to them and demanded payment would have been sufficient reason for this Court to interfere with the findings of the trial Court with respect to Exhibits D1, C15, C1 ? C5 and D3 ? D4 whereupon the trial Court came to the conclusion that there was no breach of contract by the Respondents. In the light of the foregoing therefore, this issue is resolved against the Appellant and in favour of the Respondents. Consequently, the decision reached by the learned trial Judge on this issue is affirmed.

ISSUE TWO
The Appellants? second issue for determination is: ?Whether the trial Court was right to hold that the Claimant/Appellant reply to the Defendant?s amended statement of defense dated 7/10/13 and filed 5/11/13 is deemed abandoned whereas evidence was led on the said reply and during cross examination of the Defendant?s witness Amaka Obiora who gave evidence on the facts covered by the said reply

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and when issues have been joined by the parties on these points.” The Respondent?s third issue which is similar is: ?Whether the lower Court was right to have held that, the Appellant?s Reply to Amended Statement of Defense was abandoned for failure to support same with evidence by way of a written statement on oath.?

The Appellants? submission on this issue is that the learned trial Judge suo motu raised a preliminary issue that was not canvassed by either of the parties in their Written Addresses without inviting the parties to address the lower Court on the issue of competence or otherwise of the Appellant?s Reply dated 25th October, 2013; and that having failed to do so, the learned trial Judge had no jurisdiction to make pronouncement on the competence of the said Reply. The Appellant alternatively submitted that the Appellant?s Reply is competent and constitutes an effective denial of the Amended Statement of Defense and that oral evidence having been led on the said Reply, it cannot be deemed as abandoned; that the trial Court having granted extension of time to the Appellant to file a Reply turned around

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to find that because the Appellant did not file Additional Witness Statement on Oath, the Reply is deemed abandoned; and that the findings of the lower Court that the Appellant?s Reply is erroneous, perverse, amount to a denial of fair hearing, and so doing occasioned grave miscarriage of justice.

The Respondents? submission on this issue is that it is trite that pleadings which are not supported by evidence are deemed abandoned and go to no issue; that the Appellants Reply was not supported by any witness written statement on oath in proof of the new facts contained in the Reply; and that the only written statement which the Appellant adopted is the one filed in support of the Writ of Summons and Statement of Claim; and since the Appellant has admitted that indeed he did not file any witness written statement on oath in support of his Reply; the argument that the trial Court ought not to have held that the Reply is deemed abandoned because evidence relating to the said Reply was extracted under cross examination is not the correct position of the law; and that it is therefore wrong for the Appellant who failed in its duty to prove the facts

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contained in his Reply by filing a witness statement on oath to attempt to rely on the cross-examination of the Respondent to establish his case. The Respondent further submitted that the law is clear that all the Court needed to do was to afford parties the opportunity to present their cases; and that it will not amount to lack of or breach of the right to fair hearing if a party fails to utilize the opportunity presented and/or adopts a procedure which is antithetical to its case.

From the submissions of counsel for both sides; it is not contended that the Appellant in response to the Respondents Amended Statement of Defense filed a Reply dated 25th October, 2013 and contained at pages 109 ? 113 of the Records of Appeal; and that no Witness Statement on Oath was filed in support of the said Reply. On this score, the learned trial Judge found at pages 308 ? 309 of the Records of Appeal as follows:
?As a preliminary point, I wish to note that though the Claimant filed a reply to the amended statement of defence, no deposition was filed in support of same. The legal effect of a pleading not supported by evidence is trite. That

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pleading is deemed abandoned. Address of counsel in support of pleadings no matter how ingenious cannot take the place of evidence. This is also trite.

The above conclusion by the learned trial Judge is well grounded in law. In NEWBREED ORGANISATION LTD Vs. ERHOMOSELE [2006] 5 NWLR (Pt. 974); (2006) LPELR-1984SC (CA) Pg. 53, Para. B ? D, the Supreme Court of Nigeria held that:
?It is now settled, that pleadings do not constitute evidence and therefore, where such pleading is not supported by evidence ? oral or documentary, it is deemed by the Court as having been abandoned. There are too many decided authorities in this regard
See: also NWOKO Vs. IKOGHODE & ORS (2017) LPELR-43099 (CA) Pg. 36, Para. B ? D where this Court held that  averments in pleadings not supported by evidence are deemed abandoned, and liable to be struck out  Also, in OMISORE & ANOR Vs. AREGBESOLA & ORS (2015) LPELR-24803 (SC) Pg. 68, Paras. B ? E His Lordship NWEZE, JSC held as follows: ?I equally endorse the Lower Court?s affirmation of the finding that

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averments in pleadings (no matter their eloquent phraseology) do not speak for the pleader without supporting evidence unless the adversary admits them Therefore, where a party merely makes averments in his pleadings without leading any evidence in support; those averments are deemed abandoned except they have been admitted by the Respondents as stated by the Supreme Court in OMISORE & ANOR Vs. AREGBESOLA & ORS (Supra) which aligns with the settled position of the law that facts admitted need no further proof. See PINA Vs. MAI-ANGWA & ORS (2018) LPELR-44498 (SC) Pg. 14, Paras. C ? D and OLIYIDE & SONS LTD Vs. OAU, ILE IFE (2018) LPELR-43711 (SC) Pg. 9, Paras. A ? B.
It is not the Appellant?s contention that the Respondents admitted the facts in the Reply; rather the Appellants? contention is that the parties joined issues before the lower Court at the time the said Reply was filed and that even if no witness statement on oath is filed; the Court still has a duty to ascertain the veracity and authenticity of facts deposed to in the further Witness Statement of Amaka Obiora which did not raise any issue

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different from the earlier deposition of the Appellant in the Statement on Oath filed in support of his Statement of Claim. The Appellant further relied on Order 18 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012 to contend that a party filing a Reply is not required to file a witness Statement on Oath.
However, the contention of the Appellant does not relieve him of the duty to lead evidence in prove of the facts contained in the Reply to the Amended Statement of Defense which have not been shown to be admitted. Let me state that if the Appellant?s submission that the Respondents did not raise any new issue in the Amended Statement of Defense and that issues have been joined is anything to consider; then the Appellant ought not to be piqued by the decision of the learned trial Judge dismissing his Reply since the essence of a Reply is to answer new issues that may have been raised in the Respondents? Statement of Defense. That being said, I am of the opinion that the trial Court was right in its finding that the Reply, which constitute an integral part of the pleadings, was not supported by evidence and therefore deemed

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abandoned. The Appellant?s issue No. 2 and the Respondents? issue No. 3 are hereby resolved against the Appellant and in favour of the Respondent.

ISSUE THREE
The third issue distilled for determination by the Appellant is: ?Whether the trial Judge misapplied the case of AHMED V C.B.N (2010) 7SC 1 at pg. 19-20 which would have enabled him arrive to a correct decision in favour of the Appellant.? While the fourth issue distilled by the Respondents is ?Whether the lower Court properly applied the principle in the case of Ahmed vs. C.B.N. (2013) 2 NWLR (Pt. 1339) 524, to the fact of the suit before it.? The Appellant?s on this issue referred to AHMED Vs. CBN (Supra) to submit that the Appellant contended before the lower Court that when a contract is performed in a way that it totally deviates from what was contemplated by the parties, then a breach has occurred; that the Respondents in the instant case breached the fundamental elements of the contract between the parties; that there is no credible evidence in support of the loan agreement of N4, 000,000.00 and letter of offer of N6, 000,000.00; that the specific

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instruction to purchase specific shares were not carried out especially the last instruction to purchase Access Bank and IBTC Shares; and that there was no communication of returned money to the Appellant to enable him make informed decisions.

The Appellant argued further that the contribution of the Appellant was not fully utilized; that the unutilized money was retained by the 1st Respondent even after the expiration of the facility by effluxion of time; that the volume and value of shares purchased with the Appellants money is not known to the Appellant even after the demand made by the Appellant through Exhibits C6, C7 and C9; and that in the light of the breach by the Respondents, the contract stands discharged; and that the lower Court ought to but failed to follow the decision inAHMED Vs. CBN (Supra). The Respondent on the other hand contended that the Appellant admitted that the Respondents performed the contract; but his only complaint is that the Respondents did not perform the contract in accordance with the terms of the contract document; that the trial Court rightly relied on the principle inAHMED Vs. CBN (Supra) and rightly concluded that

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there is no breach of contract since the Respondents applied the whole of the N10Million in fulfilling the mandate and instruction of the Appellant. The Respondents further submitted that the contact between the parties was fully executed and cannot be repudiated by the Appellant.

In AHMED & ORS Vs. CBN (2012) LPELR-SC.34/2005 relied upon by both parties and the trial Court; the Supreme Court per ADEKEYE, JSC held as follows:
?A contract generally may be discharged through the following, namely ? a. By performance ? if both parties have done all that is required of them, b. By agreement ? if both parties have mutually agreed to put an end to their contractual relationship, c. By frustration ? if some event outside the control of the parties take place, making performance impossible, d. By breach ? where the innocent party is relieved and the party in default may be liable for damages
The learned jurist further held that: ?A contract will be discharged by breach when the party in breach had acted contrary to the terms of the contract either 1. By nonperformance or 2. By performing the

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contract not in accordance with its terms or 3. By wrongful repudiation of the contract. A party who has performed the contract in consonance with its terms cannot be said to have been in breach thereof
The decision of the learned trial Judge that the Respondents did not breach the contract with the Appellant was extensively considered under issue No. 1 above. It was in the course of its findings that the learned trial Judge placed reliance on the decision in AHMED Vs. CBN (Supra). The learned trial Judge stated at page 309 of the Records of Appeal that:
?Claimant?s cause of action is alleged breach of contract. The onus is on the party who asserts breach of contract to prove same. ?
It is also settled that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden of proof of the assertion is on the claimant who asserts.
I have earlier held in this Judgment that where, as in the instant case, the contention of the parties is based on the agreement of the parties and the

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several other documents of instruction and performance of the agreement; neither the trial Court nor this Court as an Appellate Court will have the power to re-write the contract as between the parties or give any different meaning to the evidence presented and that parties and indeed the Court are bound by the terms of an agreement lawfully entered into by the parties. See LARMIE Vs. D.P.M.S LTD (Supra); ODUTOLA Vs. PAPERSACK (Supra); IHUNWO Vs. IHUNWO & ORS (Supra); and OBANYE Vs. UNION BANK (Supra). It therefore follows that the question of whether the contract between the parties was not performed in accordance with the terms of the contract thereby resulting in breach of the contract can only be answered by considering the documentary evidence tendered and admitted. The learned trial Judge having done that concluded that there was no breach of contract.
Let me re-emphasize the point already made in this Judgment while resolving the first issue: In the instant case, the Appellant merely made blanket and unsubstantiated allegations that the decision of the learned trial Judge is perverse and against the weight of evidence; and that the trial Court

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failed to properly evaluate the pleadings and evidence of the parties. It is not sufficient for a dissatisfied or aggrieved party like the Appellant to merely raise the flag of miscarriage of justice and perversity; an aggrieved party who seeks the interference of an Appellate Court to set aside or, reverse the decision of a trial Court especially as it relates to the evaluation of documentary evidence placed before the trial Court must show the error and/or perversity in the decision arrived at by the trial Court. In my opinion therefore, the decision in AHMED Vs. CBN (Supra) is a guide as to factors that establish the discharge of a contract by breach; and having been properly guided, the learned trial Judge considered and evaluated Exhibits D1, C15, C1 ? C5 and D3 ? D4 upon which the trial Court came to the conclusion that the Respondents are not liable for breach of contract. In the circumstances therefore, the Appellant?s Issue No. 3 and the Respondents? Issue No. 4 are hereby resolved together against the Appellant and in favour of the Respondents.

ISSUE FOUR
The Appellant?s issue No. 4 is: ?Whether the

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Learned Trial Judge misunderstood the case of the parties and relying on Section 125 of the companies and Allied Matters Act 1990 LFN as applicable in the circumstances of this case and thus arrived at the wrong conclusions and Judgment leading to a serious miscarriage of justice.? While the Respondent?s issue No. 2 is: ?Whether the lower Court was right to have relied on the provisions of Section 125 of the Companies and Allied Matters Act, Cap. C20, LFN 2004, to hold that the Respondents discharged their duties under the contract and not liable to the Appellant for breach of contract.? The Appellant?s contention on this issue is that the reliance by the trial Court on Section 125 of the Companies and Allied Matters Act, Cap C21 LFN 2004 (CAMA) shows that the learned trial Judge misunderstood the Appellant?s case; that the question of whether it was the duty of a Company to allot its shares was not an issue before the lower Court; that the issue before the trial Court was the failure of the 2nd Respondent to carry out the instructions of the Appellant and the failure to inform the Appellant of the fact that the shares he

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applied to buy were not allotted and that the money as purported by the Respondents was contributed by the 1st Respondent was not utilized; and that the Appellant should be allowed to rescind or repudiate the contract for breach.

The Respondents on the other hand argued that the main allegation of the Appellant was that the Respondents did not utilize the contract sum to purchase the shares of Banks which he applied for; that the Appellant had apparently put the non-purchase/allotment of shares in issue and equally made submissions in respect of same in the Appellant?s Final Written Address; and that the Respondent equally joined issues with the Appellant and made it clear that they utilized the contract sum to purchase/apply for the shares. Respondent further submitted that the Appellant failed to lead any evidence to show that they are in control of the allotment of shares in any of the Banks; that the trial Court rightly relied on Section 125 of CAMA which regulates the allotment of Shares in Nigeria and came to the conclusion that the Respondents had done all that was required of them by the contract if they forwarded the contract sum and

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mandates filled by the Appellant to the said Banks; and that assuming, without conceding, that the contentions of the Appellant are valid, the lower Court was still right to have held that the Respondents had done all that was required of them under the contract and therefore not liable to the Appellant for breach of contract because there was evidence before the lower Court that the Respondents indeed utilized the entire contract sum to apply for shares as instructed by the Appellant.

The finding of the learned trial Judge in this regard is contained at page 318 of the Records of Appeal; the learned trial Judge held as follows:
?It is trite that a Court is allowed to take judicial notice of statutory provisions. Haruna v. University of Agriculture, Makurdi (2005) 3 NWLR (Pt. 912) 233.?
The learned trial Judge then proceeded to reproduce and place reliance on Section 125 of CAMA and then concluded that: ?The implication of this is that the allotment is not by stockbrokers, the 2nd Defendant in this case?. I must emphasize that, the lower Court acted within its jurisdiction to have considered Section 125 of CAMA. Contrary

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to the Appellant?s contention, the learned trial Judge acted within his jurisdiction as conferred by Section 122 (2) (a) of the Evidence Act, 2011 which provides that: ?The Court shall take judicial notice of all laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in part of Nigeria;? This trite position of the law was affirmed by the Supreme Court in INEC & ANOR Vs. ASUQUO & ORS (2018) LPELR-43885 (SC) Pg. 27-29, Para. B ? A & 41-43, Paras. F ? B.
The contention of the Appellant is that the trial Court?s reliance on Section 125 of CAMA is unsustainable. I refer to the reasoning and decision of the learned trial Judge reproduced under issue one above and contained at pages 310 ? 319 of the Records of Appeal particularly. The decision of the lower Court that the Respondents did not breach the contract was upon evaluation of the terms of the contract itself and the steps taken by the Respondents as shown by Exhibits D1, C15, C1 ? C5 and D3 ? D4. The Appellant has failed to show how the lower Court erred particularly with

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respect to its findings on the said Exhibits D1, C15, C1 ? C5 and D3 ? D4. In conclusion on this issue therefore, it is my view that the learned trial Judge rightly took judicial notice of the provisions of Section 125 of CAMA, 2004. The Appellant?s issue No. 4 and the Respondent?s issue No. 2 are hereby resolved against the Appellant and in favour of the Respondents.

ISSUE FIVE
The Appellant?s issue No. 5 is: ?Whether the trial Court was right having found that: ?My findings is that there is no evidence to prove that the Claimant is indebted to the Defendant? The Defendant did not show the Court how they arrived at N6.9m set off. I take note of the amount the 1st Defendant contributed which is N5,874,000.00k there is no evidence to show that the balance of N1,026,000.00 is the interest and how the figure was arrived at. There is also nothing to show that the Claimant?s whole contribution was utilized? to dismiss the suit of the Claimant/Appellant.? The Appellant contended under this issue that there is no evidence to prove that the Appellant is indebted to the Respondents and that

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the Respondents did not show the Court how they arrived at the N6.9 Million they claimed as set off; that the trial Court wrongly rejected Exhibit C14 which is the 1st Respondent?s letter dated 16th February, 2010 and contained at page 81 of the Records of Appeal because the said Exhibit C14 contradicts the claim by the Respondents that the sum of N6.9 Million was used to set off the purported indebtedness of the Appellant.

With due respect to the learned Counsel for the Appellant, the learned counsel in my opinion, appears to have either misapprehended the decision on the lower Court; or simply does not appreciate its own case and the purpose of an appeal. The decision of the learned trial Judge at pages 319 ? 320 of the Records of Appeal is as follows:
I need to say something on the alleged indebtedness of the claimant to the 1st Defendant. Claimant counsel submitted that the statement of current account of the Claimant showing the activity on the account and the alleged interest should have been tendered. He submitted that the presumption of withholding unfavorable evidence applies in this case. In his reply, Defendants

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counsel argued that no transaction took place on the current account.
The implication of this submission is that it is only the stock account Exhibit D4 that is relevant to the case of the defendants. ?
In this case, there is no entry to show or prove indebtedness of the Claimant. Under cross examination, DW1 admitted that there was zero balance in Exhibit D4 which is the stock statement of account after the set off of about N6.9m. Later, she said the debt owed is in another account but she did not produce that account.
My finding is that there is no evidence to prove that the Claimant is indebted to the defendants. Claimant counsel dissipated so much energy in his cross examination and written address to show that the claimant is not indebted to the Defendants. The Defendants have no counterclaim in this suit so the Claimant does not need to prove that he is not indebted. Even if there was a counterclaim, the burden of establishing the counter-claim is on the counter-claimant.

The foregoing findings clearly exonerated the Appellant of the allegations of indebtedness; the Appellant can therefore not challenge the

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decision of the trial Court in his favour. The submission of the Appellant that there is no evidence to prove that the Appellant is indebted to the Respondents and that the Respondents did not show the Court how they arrived at the N6.9 Million they claimed as set off is baseless in the face of the fact that the learned trial Judge clearly held that the Appellant was not indebted to the Respondents. I must restate that the further findings of the trial Court that the Respondents owed the Appellant a fiduciary duty does not negate or contradict the decision that Appellant failed to establish its claim which bordered on the fact that the Respondents breached the terms of the contract. I therefore resolve this issue in favour of the Respondents against the Appellant.

Having resolved all the issues against the Appellant; this appeal is patently unmeritorious and therefore deserves to be and is hereby dismissed by me. The Judgment of the High Court of Lagos State delivered by OBADINA, J. on the 27th day of February, 2015 in Suit No: LD/395/2009, is hereby affirmed.
Parties in this appeal shall bear their respective costs.

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MOHAMMED LAWAL GARBA, J.C.A.: I agree with the comprehensive lead judgment written by my Learned brother Tijjani Abubakar, JCA in this appeal, a draft of which I read before now.
For reasons set out therein, which I adopt, the appeal is dismissed by me too.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I read the lead judgment of my learned brother, TIJJANI ABUBAKAR, JCA in draft, and I agree that the appeal lacks merit and should be dismissed.

I really do not have any more useful thing to add, and I abide with the directive giving that both parties shall bear their respective costs of the Appeal.
?Appeal is dismissed by me too.

 

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Appearances:

Aloy Ezenduka with him S. OduaFor Appellant(s)

Collins Ogbonna for the 1st and 2nd RespondentsFor Respondent(s)

 

Appearances

Aloy Ezenduka with him S. OduaFor Appellant

 

AND

Collins Ogbonna for the 1st and 2nd RespondentsFor Respondent