NIGERIA DEPOSIT INSURANCE COMPANY v. DR. VIVIENNE NNEKA BALONWU & ORS (2017)

NIGERIA DEPOSIT INSURANCE COMPANY v. DR. VIVIENNE NNEKA BALONWU & ORS

(2017)LCN/9441(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 1st day of February, 2017

CA/L/551/2009

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

NIGERIA DEPOSIT INSURANCE COMPANY Appellant(s)

AND

1. DR. VIVIENNE NNEKA BALONWU
2. ANTHONY OBIOR BALONWU
3. MICHAEL CHIKE BALONWU
4. BARRISTER STEPHEN N. BALONWU (Suing as Administrators of the Estate of late Justice Moses Balonwu)
5. ONUA ANENE & COMPANY LTD Respondent(s)

RATIO

EVIDENCE: CONSEQUENCE OF UNCHALLENGED AVERMENTS IN PLEADINGS
It is settled in law, that by the established principles of the pleadings, any averment in the pleadings of a party not effectively denied, challenged or controverted in the pleadings of another party who intends to dispute the facts averred and therefore owes the legal duty to do so, would be presumed or deemed to have been admitted. The admission arises from the failure, omission or refusal of to effectively deny, challenged or controvert the facts and is presumed by the principle of pleadings that the party does not intend to dispute and thereby join issues on the facts with the party-who made the averments. In order to join issues in pleadings, there must be proper traverse to effectively controvert specific and positive facts contained in a party’s pleadings. It is only when issues are joined by the parties in their pleadings that such issues would call for proof by way of evidence, otherwise the issues would be deemed not disputed and admitted by the party whose duty it is to do so. Oyebola v. Okubule (1986) 2, CA (Pt. I) 251: Ajikawo v. Ansaldo Nig. Ltd. (1991) 2 NWLR (173) 359; Ozowala v. Ezeiheshie (1991) 1 NWLR (170) 699: British Airways v. Makanjuola (1993) 1 NWLR (311) 276: Otto v. Manamije (2004) 17 NWLR (903) 489: Nwofor Pharm. Chem. & Gen. Ent. Ltd v. Roche Nig. Ltd (2006) ALL FWLR (322) 1542: N. N. C. Plc. v. Olarenwaju (2007) 5 NWLR (1027) 255. PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: WHAT CONSTITUTES ADMISSION
In the determination of whether an averment in pleading is denied by the other party, the pleadings of the party are holistically considered because it is the entirety of the facts pleaded therein that represent the case of the party and it would be wrong to isolate only some of the facts of the pleadings for the purpose. Adelusola v. Akinde (2004) 5 SC (Pt. II) 71, Buhari v. Obasanjo (2005) 13 NWLR (941) 1: Ngige v. Obi (2006) 14 NWLR (999) 1: Eze v. Okoloagu (2010) 3 NWLR (1180) 183. However, a fact contained in a party’s pleading cannot be deemed admitted if it is either expressly or by necessary implication, denied by the other party. Adegboyega v. Awe (1993) 3 NWLR (280) 224. PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: HOW ADMISSION IS DETERMINED IN PLEADINGS
Perhaps, I should also say that the presumption of admission on failure or omission to effectively deny or traverse a pleading is different from express admission in pleadings by a party. Express admission in pleading arises where pleadings are specifically admitted by a party in his own pleadings thereby conceding to the facts averred therein. The said admission is also determined by a look and consideration of the entire pleadings of the party in which it was made. Okoebor v. Eyobo Eng. Serv. Ltd. (1991) 4 NWLR (187) 553. PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: DEFINITION OF HEARSAY
Section 37 of the Evidence Act, 2011, defines hearsay to mean:- “a statement
(a) Oral or written mode otherwise than by a witness in a proceeding: or
(b) Contained or recorded in o book or any record whatever of which is not admissible under any provision of this Act, which is tendered in evidence of or the purpose of proving the truth of the matter stated in it.” PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: ADMISSIBILITY OF HEARSAY
Section 38 of Act, renders hearsay evidence inadmissible, save as provided in the Act. See Sam v. State (1991) 2 NWLR (176) 699; JSC v. Omo (1990) 6 NWLR (157) 407: Kala v. Potiskum (1998) 3 NWLR (540) 1; Buhari v. Obasanjo (supra). Because hearsay evidence is rendered inadmissible by law, it cannot be admitted and relied on by a trial Court even if not objected to of the time it was tendered. Where such evidence was wrongly admitted or received by a trial Court, on appellate Court has the inherent jurisdiction and indeed the duty to exclude or expunge such evidence notwithstanding that counsel did not at the trial Court, object to it admissibility because a Court has the duty to act only on admissible evidence for its decision. Buhari v. Obasanjo (supra) also reported in (2005) 7 SC (Pt. 1) 1,; Onochie v. Odogwu (2006) ALL FWLR (317) 544, (2006) 6 NWLR (975) 65: Dagaci of Dere v. Dagaci of Ebwa (2006) ALL FWLR (306) 786: (2006) 7 NWLR (979) 382.
In addition, when a finding of fact by a trial Court is based on such inadmissible evidence, it would be perverse and should not be allowed to stand by on appellate Court. See Olayinka v. State (2007) 9 NWLR (1040) 567: Ogidi v. Egba (1999) 10 NWLR (990) 5; Oladipo v. M. L. G. A. (2010) 5 NWLR (1186) 117. PER MOHAMMED LAWAL GARBA, J.C.A.

COMPANY LAW: POWER OF A LIQUIDATOR
The crucial issue or point under the issue is that the Appellant is admittedly the liquidator of the debtor bank against who the Respondents had a claim and it is also admitted that by the provisions of Section 425 (1) (a) of Companies and Allied Matters Act (CAMA), the Appellant, as liquidator, has the legal capacity to sue or be sued in the name of the bank for which it is liquidator. See Onafowokan v. Wema Bank Plc (2011) 5-7 MJSC (Pt. II) 1 ; Gbedu v. Itie (2010) 10 NWLR (1202) 227. PER MOHAMMED LAWAL GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Federal High Court sitting in Lagos delivered on the 5th November, 2008 in the Respondent’s Suit No. FHC/L/CS/971/2004 which was given in its favour. The appeal was brought vide a Notice of Appeal dated 27th January, 2009 containing seven (7) grounds, which was amended by the Amended Notice of Appeal filed on 15th February, 2016.

In the Appellant’s brief filed on the 9th February, 2016, deemed on the 28th November, 2016, at the oral hearing of the appeal, three (3) issues are said to call determination in the appeal from the nine (9) grounds of appeal contained on the Amended Notice of Appeal. They are-
(i) Whether having regard to the pleadings and credible evidence adduced, the Respondent is entitled to judgment in the sum of N4.5 Million as mense profit.
(ii) Whether the award of interest to the Plaintiff at 21% Per annum with effect from 20/09/04 till date of judgment is legally sustainable.
(iii) Having regard to the fact that the Appellant acted purely as Provincial Liquidator in this cause, whether

judgment was rightfully entered against it personally.”

As can easily be seen, there is no indication of the grounds of appeal from which these issues were distilled, as required by diligent practice and by the principles enunciated thereon by the Courts for quite some time now. It cannot be over emphasized that because of the law that only issues which arise or derive from competent grounds of an appeal are valid and worthy of consideration by an appellate Court in the determination of the appeal, Counsel have a duty to, at all times, clearly indicate the grounds of the appeal from which any issue they submit for decision in the appeal is formulated. It is not part of the duty of an appellate Court to speculate or even sort out the grounds from which issues were derived by Counsel in order to determine if they were valid or not for consideration in an appeal. In the Supreme Court case of Akinlogun v. Oshoboja (2006) ALL FWLR (325) 53 @ 82, Parag. D-F, it was stated that:-
“The consequence of failure to do so, relate/identity such issues with the grounds of appeal, is that such issue or issues, is or are liable to be struck out.”
See also

Ezeja v. State (2006) ALL FWLR (309); SPACN, Ltd v. Edomuke (2009) 12 NWLR (1160) 1.

The issues in the Respondent’s brief filed on 9th March 2015, also deemed on 28th November, 2016 and which has no pagination or numbered paragraphs, suffer the some defect. The issues are:-
“ISSUE 1
Whether the learned trial judge erred in law when he held that Paragraphs 4 and 12 of the Defendant’s Statement of Defence is contradictory and as such the defendant is deemed to have admitted the plaintiff’s contention.
ISSUE 2
Whether the learned trial judge erred in law, when he held that the defendant is personally liable for debt owed by Ivory Merchant Bank after having held that the defendant is in the action as provisional liquidator.
ISSUE 3
Whether the learned trial judge erred in law when he entered judgment against the defendant in the sum of N4,500,000.00 (four million, five hundred thousand naira) being the sum owed to the Plaintiff by the defendant as mense profit for 9 months from March to November 2000.
ISSUE 4
Whether the learned trial judge erred in law when he held that the Plaintiff pleaded and gave evidence that the

current annual rental value of the property is inadmissible having stated himself that the evidence he gave was based on information given to him by the 5th Plaintiff .
ISSUE 5
Whether the learned trial Judge erred in law when he held that Ivory Merchant Bank held over the premises after the expiration of the tenancy when there is no direct, cogent and reliable evidence of the period the premises was held over.
ISSUE 6
Whether the learned trial judge erred in law when he held that the Defendant’s Statement of Defence did not challenge or controvert the pleaded amount of N6 million as the value of the property and also did not controvert the sum of N4.5 million claimed as mense profit is deemed as admitted and therefore entered judgment.
ISSUE 7
Whether the learned trial judge erred in law, when he entered judgment against the Defendant at interest rate of 21% per annum in the judgment sum, from September 20th, 2004, till date of judgment.
ISSUE 8
Whether the learned trial judge erred in law, when he entered judgment against the Defendant for the Respondent based on the Plaintiff’s 2nd amended Statement of Claim.”<br< p=””

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For representing the complaints of the Appellant against the judgment of the lower Court, and generally, being derivable from the grounds of the appeal, I would use the Appellants’ issues in the determination of the appeal.

ISSUE ONE
It was submitted for the Appellant that the lower Court was wrong to hold that the Appellant admitted the claim of N4.5 Million as mense profit on the ground that the Appellant did not file an Amended Statement of Defence without a consideration of all the averments in the Statement of Defence, in order to determine if there was any such omission. Paragraphs 8 and 13 as well as the opening paragraph of the Statement of Defence by the Appellants are said to contain denials of the Respondent’s claim on the rate of mense profit and rent of the property in dispute and the lower Court was said to be wrong in the finding that the Appellant admitted the claims in the absence of such express omission or evidence in proof thereof. Cases including Mobil Producing Nig. Unlimited v. Asuah (2002) FWLR (29) 1196 @ 1223: N. B. C. Plc. v. Obohi (2000) FWLR (29) 2379 @ 2321 and Anason Forms Ltd v. NAL Merchant Bank (1993) 3 NWLR

(331) 241, were cited and it was contended that the Respondent did not prove the claims as required by law, particularly as it relates to mense profit which is in the category of special damages which require strict proof . Khaman v. Akinkugbe (2002) FWLR (109) 1574 @ 1585 and Unipetrol Nig. Ltd v. Adeigere West Africa Ltd (2004) ALL FWLR (231) 1238 @ 71288, were relied on for the submission and Court is urged to resolve the issue in favour of the Appellant.

For the Respondent, the issue was argued under issues 3, 4 and 6 and it was submitted that the lower Court was right because the Appellant did not controvert the Respondent’s Paragraph 12 of the 2nd Amended Statement of Claim on the claim for mense profit based on annual rent of N6 Million on the property in dispute.

It is also the case of the Respondent that the Appellants cannot challenge the evidence of the Respondent’s witnesses of this stooge. The cases of Debs v. Cheiko Nig. Ltd. (1986) 2 NSCL 837 @ 841: Aiki v. Idowu (2006) 9 NWLR (984) 47 @ 67 and Section 75 of the Evidence Act, 2004 , were referred to.
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The complaint of the Appellants under the issue centers around and on the lower

Court’s finding that the Appellant did not challenge or controvert the pleaded amount of N6 Million as the value of rent on the property and N4.5 Million claimed as mense profit and so is deemed to have admitted the pleadings.

It is settled in law, that by the established principles of the pleadings, any averment in the pleadings of a party not effectively denied, challenged or controverted in the pleadings of another party who intends to dispute the facts averred and therefore owes the legal duty to do so, would be presumed or deemed to have been admitted. The admission arises from the failure, omission or refusal of to effectively deny, challenged or controvert the facts and is presumed by the principle of pleadings that the party does not intend to dispute and thereby join issues on the facts with the party-who made the averments. In order to join issues in pleadings, there must be proper traverse to effectively controvert specific and positive facts contained in a party’s pleadings. It is only when issues are joined by the parties in their pleadings that such issues would call for proof by way of evidence, otherwise the issues would be deemed not

disputed and admitted by the party whose duty it is to do so. Oyebola v. Okubule (1986) 2, CA (Pt. I) 251: Ajikawo v. Ansaldo Nig. Ltd. (1991) 2 NWLR (173) 359; Ozowala v. Ezeiheshie (1991) 1 NWLR (170) 699: British Airways v. Makanjuola (1993) 1 NWLR (311) 276: Otto v. Manamije (2004) 17 NWLR (903) 489: Nwofor Pharm. Chem. & Gen. Ent. Ltd v. Roche Nig. Ltd (2006) ALL FWLR (322) 1542: N. N. C. Plc. v. Olarenwaju (2007) 5 NWLR (1027) 255.

In the determination of whether an averment in pleading is denied by the other party, the pleadings of the party are holistically considered because it is the entirety of the facts pleaded therein that represent the case of the party and it would be wrong to isolate only some of the facts of the pleadings for the purpose. Adelusola v. Akinde (2004) 5 SC (Pt. II) 71, Buhari v. Obasanjo (2005) 13 NWLR (941) 1: Ngige v. Obi (2006) 14 NWLR (999) 1: Eze v. Okoloagu (2010) 3 NWLR (1180) 183. However, a fact contained in a party’s pleading cannot be deemed admitted if it is either expressly or by necessary implication, denied by the other party. Adegboyega v. Awe (1993) 3 NWLR (280) 224.

Perhaps, I should also say that

the presumption of admission on failure or omission to effectively deny or traverse a pleading is different from express admission in pleadings by a party. Express admission in pleading arises where pleadings are specifically admitted by a party in his own pleadings thereby conceding to the facts averred therein. The said admission is also determined by a look and consideration of the entire pleadings of the party in which it was made. Okoebor v. Eyobo Eng. Serv. Ltd. (1991) 4 NWLR (187) 553.

Now, the averments in the Respondent’s 2nd Amended Statement of Claim dated the 22nd February, 2007 on the rent and mense profit said not to have been challenged and controverted by the Appellants are contained in Paragraphs 11 and 12, and are:-
“11. To date, the sum of N4,500,000.00 (Four Hundred , Five Hundred Thousand Naira) has accrued to the Plaintiffs as mense profit for the period of March, 2000 to November, 2000 on the aforementioned property.
12. The market value for rent of such property at the material time (that is, the year 2000) was N6,000,000.00 (Six Million Naira) per annum.”

The Appellant, in Paragraph 8 of the Statement of Defence dated

7th June, 2005, had of pleaded that:-
18. In response to Paragraph 7, Nigerian Deposit Insurance Corporation denies that the sum of N6.0M or at all is due and outstanding to the Plaintiff from either Nigerian Deposit Insurance Corporation or the said Bank as rent in respect of the property.”
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The above pleading was in reaction to the Respondent’s Statement of Claim dated the 20th September, 2004 wherein Paragraph 7, it was pleaded that-
“7. To date, the sum of N6,000,000.00 (Six Million Naira) has accrued to the Plaintiffs as rent for the aforementioned property.”

As can clearly be seen, Paragraph 12 of the 2nd Amended Statement of Claim and the above Paragraph 7 of the earlier Statement of Claim of the Respondent are essentially of the same substance; that is, a claim that the rent on the property for the period of the claim, was N6 million. The positive and specific denial of the claim for rent in the sum of N6 Million by the Appellants in Paragraph 8 of the statement of defence, is/was on effective challenge and controvertion of the claim that the property rent on the property was N6 Million at the material time. Even if the Appellant

did not amend its statement of defence, deny the terms of Paragraph 12 of the 2nd Amended Statement of Claim by the Respondent, a dispute was definitely raised by it in respect of the claim for N6 Million rent on the property contained therein. Issues were accordingly, properly joined by the parties on the claim to warrant the call for proof by the Respondent if it was to succeed on it. The Appellants did expressly deny the claim that the rent on the property was N6 Million and could and cannot rightly be said to have failed to challenge or/and controvert the averment of the Respondent in Paragraph 12 and to be deemed to have admitted some on that ground. The lower Court erred in law to have found that the Appellant failed to challenge or controvert the averment in Paragraph 12 of the Respondent’s 2nd Amended Statement of Claim simply because the Appellant did not amend its statement of defence after the amendment by the Respondent. As far as the facts in respect of the averment on rent on the property was concerned, the Appellant had effectively denied the claim expressly and joined issues properly with the Respondent on it.
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However, the Appellant’s

statement of defence has no avernment whatsoever in respect of the pleading of the Respondent on the claim for mense profit as contained in Paragraph 11 above. But, the claim for mense profit was predicted on the claim for the rate of the annual rent of N6 Million on the property and so dependent on the satisfactory proof of that claim. As a result, the claim for the sum of N4.5 Million can only succeed and be awarded if the claim that at the material time, the rent payable on the property, was N6 Million per annum was successfully proved as required by law. The evidence adduced by the Respondent on the avernment in Paragraph 12 of the 2nd Amended Statement of Claim was the oral evidence of the 3rd Respondent; as PW2, which appears at pp. 111-112 of the record of Appeal.

It is expedient to invite the witness to speak for himself, as recorded of the trial , and here he is:-
“I am the 3rd Plaintiff and are of the administrator of my father’s estate. The 5th plaintiff entered into an agreement with Ivory Merchant Bank Ltd. The house agreement was for a 5 years lease. The last agreement with Ivory Merchant Bank was to expire on 1st February, 2000. The

Bank first entered the premises some time in 1985. The bank later erected a structure behind the property that it was occupying the form of the premises. The sun spent by the bank for the said building was converted to a nine-years lease. The lease agreement expired on 1st February, 2000. The bank vacated the property in November, 2000. There was no mean (sic) profit paid for that period. The bank was aware that there was no mean (sic) profit paid for the period between the time the lease expired and when the property was vacated. This was confirmed by the bank through its solicitor i.e. letter dated 24th February, 2000. The original copy has been misplaced but I have a photo copy.
We carried out our investigation and find that the on going rent for property in that area came to N6 million Per annum but we are asking for N4.5 million for 9 months.
“The survey was done by an estate surveyor but there is no report to that effect. It was the moment that the bank went into liquidation that NDIC took over. I do not know when NDIC definitely took over. I was a party to Exhibit A. I now say I was not a party to Exhibit A. The transaction contains in Exhibit A

was between the bank and 5th Plaintiff. It was what I was told by Onua Anene & Co. Ltd that I told the Court.”

The other piece of evidence on the claim for rent was given by the 2nd Respondent as PW1 under cross examination of pp. 85-86 of the Record of appeal as follows:-
“I do not know the rental value of the property from February 1999 to February, 2000. I do not know the rental value of the property from February , 1994 – February 1999.
The Rental value of the property per annum between 1994-1999 was N870,000. The annual rent for February 1999-February 2000 was N870,000.00. It is usual for the landlord to increase the rent after every five years.”

From the above evidence, it can be seen that the only evidence which goes to the claim that the rent on the property at the material time was N6 Million is that of PW2 which is based on what he was told by the 5th Respondent. Even though PW2 has said that the survey on the change in rent on the property of the time was conducted by an Estate Surveyor, the surveyor was not called as a witness and his report was not put in evidence. The evidence on the rent by the PW1, that it is usual

for the landlord to increase the rent every five years goes to show or of least suggest that the rent of N6 Million was fixed by the Respondents because it was usual for them to do so and not because it was based on any survey by on Estate surveyor as claimed by PW2. Even then, PW1 has said that the annual rent on the property between or from February, 1999 to February, 2000 when the lease between the Respondents and Ivory Merchant Bank was Eight Hundred and Seventy Thousand Naira (N870,000.00). The claim for mense profit based on the annual rent of N6 Million was for period of March to November, 2000 and so it was not up to the time of five (5) years for the Landlords to increase the rent to such an extent from the Eight Hundred and Seventy Thousand Naira (N870,000.00), paid for the lease that expired in February, 2000. The evidence by PW2 based on what he was told is clearly a tale that was retorted, which in evidence law, is called hearsay evidence. Section 37 of the Evidence Act, 2011, defines hearsay to mean:- “a statement
(a) Oral or written mode otherwise than by a witness in a proceeding: or
(b) Contained or recorded in o book or any record

whatever of which is not admissible under any provision of this Act, which is tendered in evidence of or the purpose of proving the truth of the matter stated in it.”

Section 38 of Act, renders hearsay evidence inadmissible, save as provided in the Act. See Sam v. State (1991) 2 NWLR (176) 699; JSC v. Omo (1990) 6 NWLR (157) 407: Kala v. Potiskum (1998) 3 NWLR (540) 1; Buhari v. Obasanjo (supra). Because hearsay evidence is rendered inadmissible by law, it cannot be admitted and relied on by a trial Court even if not objected to of the time it was tendered. Where such evidence was wrongly admitted or received by a trial Court, on appellate Court has the inherent jurisdiction and indeed the duty to exclude or expunge such evidence notwithstanding that counsel did not at the trial Court, object to it admissibility because a Court has the duty to act only on admissible evidence for its decision. Buhari v. Obasanjo (supra) also reported in (2005) 7 SC (Pt. 1) 1,; Onochie v. Odogwu (2006) ALL FWLR (317) 544, (2006) 6 NWLR (975) 65: Dagaci of Dere v. Dagaci of Ebwa (2006) ALL FWLR (306) 786: (2006) 7 NWLR (979) 382.
In addition, when a finding of fact by a

trial Court is based on such inadmissible evidence, it would be perverse and should not be allowed to stand by on appellate Court. See Olayinka v. State (2007) 9 NWLR (1040) 567: Ogidi v. Egba (1999) 10 NWLR (990) 5; Oladipo v. M. L. G. A. (2010) 5 NWLR (1186) 117.

The lower Court’s finding on the claim for the N6 Million rent on the property of the material -time was based on the wrong presumption that the Appellant did not effectively controvert the Respondent’s Paragraph 12 of the 2nd Amended Statement of Claim and on the hearsay evidence of PW2, which is clearly inadmissible in law. This was the finding by the High Court at pages 206-207 of the Record of Appeal:-
“The defendant did not deny the averments contained at Paragraph 12 of the statement of claim. The evidence of the 3rd plaintiff on the issue of value was also not denied. The effect of non denial amount to an admission. Aiki v. Idowu Supra Page 67 Paragraphs F-G. Also referred to Section 75 of the Evidence Act, Cap E 14 Laws of the Federation of Nigeria, 2004.
Issue two should be resolved in favour of the plaintiffs.”

Again, at page 212 of the Record of Appeal, the lower Court

maintained that: –
” The plaintiff pleaded and gave evidence to the effect that the value of property is N6 Million. This was pleaded at Paragraph 12 of the 2nd amended statement of claim. How did the defendant react to the pleading at Paragraph 12 of the 2nd amended statement of claim? The defendant did not file an amended statement of defence and no reference was made to 12 of the 2nd amendment statement of claim. The defendant’s statement of defence did not challenge or controvert the pleaded amount of N6 Million as the value of the property and also did not controvert the sum of N4.5 Million claimed as mense profit. It is deemed admitted.”

As stated earlier, any finding by a trial Court based on legally inadmissible evidence, such as hearsay evidence of PW2 on the rate of rent cannot be allowed to stand and on appellate Court has the duty to set it aide. It may be remembered that I have said before now, that the claim for mense profit on the property was based and dependent on the success of the claim that the rent on the property was of the material time, N6 Million. Because of the finding that there was no legally admissible evidence to

prove that claim, the claim for the sum of N4.5 Million as mense profit on the property lacks sustainable foundation to standard so cannot be granted in law.

ISSUE TWO
Whether the award of interest to the Plaintiff at 21% per annum with effect from 20th February, 2004 till date of judgment is legally sustainable having regard to the pleadings and evidence before the Court.

This issue has undoubtedly been subsumed in the consideration and resolution of issue one above since it is based on whether or not the award of the mense profit claimed by the Respondents was sustainable in law. It would only be live and open for consideration if and only if the award was sustained or sustainable in law. The resolution in issue one is that the award is not sustainable in law and that has overtaken the award of interest on the unsustainable award of mense profit.

Be that as it may, without the need for reviewing of arguments by Counsel on the issue, I have observed that apart from the pleadings in Paragraph 14 of the 2nd Amended Statement of claim, seeking as a relief , “Interest of the rate of 21% per annum till judgment “and the ipse dixit of the PW2

repeating it by way of prayer for the lower Court to make the award, there is no evidence howsoever, to support and on which basis, the interest of 21% per annum, was awarded by the lower Court. The lower Court did not state any basis nor give any reason for the award of interest mode in the judgment. It must be noted that the claim for 21% interest is one for a pre-judgment interest that is required by law, to be proved to the satisfaction of the Court by way of credible evidence from the claimant. The Supreme Court, in the case of S. A. F. P. & U. v. UBA, Plc (2010) 17 NWLR (1221) 192 @ 201-2 has held that:
” A plaintiff, in order to succeed in a claim for interest must show how the entitlement for such interest arose, i.e. whether by law, by contract, or agreement, or plead facts showing that the claim is part of the loss or special damages which the defendant’s wrong doing imposed on him. It is not enough to merely say that the plaintiff is claiming interest. The basis of the claim for interest must be made manifest on the pleadings.”
The cases of Ekwunife v. Wayne (W. A) Ltd. (1989) 5 NWLR (122) 422 @ 445 and R.C.C Nig Ltd v. R. P. C. Ltd

(2005) 10 NWLR (934) 615 were referred to by the Apex Court on the position.

In the present appeal, the Respondents did not plead any fact to show their entitlement to interest of the rate of 21% per annum and only mentioned it as one of the reliefs sought from the lower Court which was merely repeated, casually, by PW2 in his evidence. As a result, there was neither pleading of material facts nor credible evidence of all by the Respondents to demonstrate their entitlement to the interest they claimed. It was therefore an error of law for the lower Court to have simply awarded the interest claimed merely for the asking by the Respondents in the absence of the required pleadings and evidence thereon.

The Appellant’s arguments on the issue are meritorious and the issue is resolved in its favour.

ISSUE THREE
Whether judgment was rightly entered against the Appellant: who was only a Provision of Liquidator.

Again, this issue has been subsumed in issue one since the award of mense profit by the lower Court, which is the pith of the judgment entered against the Appellant, has been found to be unsustainable in law.
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All the same, in line

with the exhortation by the Apex Court that the Court should consider and make pronouncement on all issues placed before it in an appeal by the parties, being on intermediate appellate Court whose decision is subject to further appeal. See: Fed. Min. of Health v. C. S. A. Ltd (2009) 9 NWLR (1145) 193 @ 220-1 Ownwo v. Woko (2011) 6 MJSC (Pt. III) 83; Elelu-Habeeb v. A. G. F. (2012) 2 MJSC (Pt III) 1, I would just like issue two above, make pronouncement on the issue howbeit brief.

The arguments of the Appellant are to the effect that the Appellant being only a liquidator, it could not be sued in its name but as liquidator, citing Section 422-425 of Companies and Allied Matters Act (CAMA) and, Co-op & Comm. Bank Plc v. O’Silva Wax Int. ltd (1999) 7 NWLR (609) 97 and Zest Neirs v. Sen. Waziri (2003) FWLR (186) 656, as authorities for the position.

For the Respondents, the submissions are to the effect that the law places no bar on actions against a liquidator of a defunct company, like the Appellant whose pleadings in Paragraphs 4, 7 and 12 of the statement of defence on takeover of Ivory Merchant Bank, were inconsistent or contradictory. Sections

25(1), (2)and (3) of NDIC Act, 2004 and 417 of Companies and Allied Matters Act (CAMA) were referred to.

The crucial issue or point under the issue is that the Appellant is admittedly the liquidator of the debtor bank against who the Respondents had a claim and it is also admitted that by the provisions of Section 425 (1) (a) of Companies and Allied Matters Act (CAMA), the Appellant, as liquidator, has the legal capacity to sue or be sued in the name of the bank for which it is liquidator. See Onafowokan v. Wema Bank Plc (2011) 5-7 MJSC (Pt. II) 1 ; Gbedu v. Itie (2010) 10 NWLR (1202) 227.

As can easily be observed, the Respondent’s claims were against the Bank for which the Appellant was appointed a liquidator and instead of suing the Appellant, as liquidator in fine with the provisions of Section 425 (1) (a) of Companies and Allied Matters Act (CAMA), it took out the writ of summons for and prosecuted the claims against the Bank, in the name of the Appellant, not as liquidator of the debtor bank but in its own name however based on facts in the pleadings which clearly demonstrated that if was sued as the liquidator who took over control and

management of the assets of the defunct debtor bank. The provisions of Section 425 (1) (a) are very clear and unambiguous on how on action by or against a liquidator should and could validly be initiated and so require no interpretation. All that they deserve from the Court is to be given their ordinary and plain meaning and express purport whenever they fall for consideration in a matter.

In addition to the earlier authorities cited on the point, see Calabar C. Co-operative v. Ekpo (2008) 11 MJSC, 104, Olafu v. Itodo (2010) 18 NWLR (1225) 545.

The case of NDIC v. Akaliball (2004) ALL FWLR (229) 827 @ 922-4 referred by the lower Court in its judgment at pp. 183-184 of the Record of Appeal is authority for the law that a company under liquidation and still a living entity can be sued with the leave of the Court. The case is not authority, with due respect to the lower Court, for the view that the liquidator of such a company can be sued in its own name and not as the liquidator of the company for debt owed by the company. I am unable to find any extant judicial authority which supports the view that a creditor to a company under liquidation can sue

the liquidator in its his name and not as liquidator for debt owed by the company in liquidation outside the provision of Section 425 (1) (a) of Companies and Allied Matters Act (CAMA). I should point out that in this appeal, the duties of the Appellant as liquidator under CAMA or its obligations under the NDIC Act, were not in doubt or dispute before the trial lower Court.

Where the procedure by which action can and should be commenced or initiated before a Court of law is set out in a statute, such an action can only be validly initiated or commenced in the manner or way specifically stipulated in the law. In the case of NNPC v. Tijani (2001) 17 NWLR (1007) 29 @ 45, it was held that: – “where a statute lays down a certain procedure which ought to be followed before on action can be taken or for setting a legal process in motion, it is incumbent and mandatory that such procedure be complied with in order to authenticate the act sought to be done or the legal process set in motion.” See also Agip (Nig) Ltd v. Agip Petroli Int. (2010) 5 NWLR (1187) 348: Okolo v. UBN (2004) 1 SC (Pt. 1) 1; Kinfau v. Kinfau (2006) ALL FWLR (325) 188. If such an action was

commenced or initiated in a way or manner other than that stipulate in the statute, it would not have been commenced by and in compliance with the due process of the law, and so invalid.

In the present appeal, because the Respondents action was not commenced or initiated against the Appellant as liquidator of the debtor bank under liquidation of the material time in accordance with the provisions of Section 425(1) (a) of Companies and Allied Matters Act (CAMA), judgment could not rightly be entered against it in its own name and not as liquidator of the Bank that allegedly owed the Respondents. The issue is resolved in favour of the Appellant.

In the final result, having resolved the issue One in particular, and the other issues in the appeal in favour of the Appellant, I find merit in the appeal and allow it. In consequence, the decision by the lower Court delivered on the 5th November, 2008 in the Suit No. FHC/L/CS/971/2004 is hereby set aside.

TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother MOHAMMED LAWAL GARBA, JCA granted me the privilege of reading in draft the lead judgment just read. l am in complete

agreement with the elaborate reasoning and conclusion and therefore adopt the entire judgment as mine with nothing extra to add, except to state that l join my learned brother in holding that Appellants appeal is meritorious and therefore deserves to be allowed, it is hereby allowed by me. I also set aside the decision of the lower Court delivered on the 5th day of November, 2008 in Suit No. FHC/L/CS/971/2004.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading the judgment just delivered by my learned brother, MOHAMMED LAWAL GARBA, JCA in advance and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.

The judgment considered all the issues distilled by the parties and it leaves little or no room for me to add anything. Indeed the Appellant did not justify its claims at the trial Court as to the award of interest at 21% per annum from 20/09/04 till judgment. Without proof of the claims, it was wrong of the trial Court to have awarded this claim in favour of the Respondent. See A.G. FERRERO & COMPANY LTD. v. HENKEL CHEMICALS NIGERIA LTD. (2011) LPELR-12 (SC).

For

this and other issues appropriately resolved in the lead judgment, I also allow the appeal. I abide by the consequential orders made in the lead judgment.

Appearances

Idris FaroFor Appellant

AND

Respondents not represented.For Respondent