OGUNDANA & SONS TRADING COMPANY NIGERIA LIMITED & ANOR v. FIRST BANK OF NIGERIA PLC
(2019)LCN/13592(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of June, 2019
CA/EK/30/2017
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1. OGUNDANA & SONS TRADING CO. NIG. LTD
2. CHIEF S.E OGUNDANA Appellant(s)
AND
FIRST BANK OF NIG. PLC Respondent(s)
RATIO
WHEN A DECISION OF A COURT IS SAID TO BE PERVERSE
In the case of Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136, the Supreme Court per Uwaifo JSC (Rtd) at page 152 para C-D succinctly set out the characteristics of a perverse judgment as follows:
A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence, or that it misconceived the thrust of the case presented, or took irrelevant matters into account 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 which faulted the case beyond redemption. The hallmark is invariably, in all this a miscarriage of justice and the decision must be set aside on appeal. See Atolagbe v. Shorun (1985) 1 NWLR (PT. 2) 360, Adimora v. Ajufo (1988) 3 NWLR (Pt. 80), Agbomeji v. Bakare (1998) 7 SC (PT 1) 10, (1998) 9 NWLR (Pt. 56) 1, Odiba v. Azege (1998) 7 SC (Pt. 1) 79, (1998) 9 NWLR (Pt. 566) 370. PER ELECHI, J.C.A.
DUTY OF TEH APPELLANT TO SECURE THE REVERSAL OF THE JUDGEMENT APPEALED AGAINST
Even if there was any error of law committed by the lower Court as submitted by the Appellant, such was not substantial to justify a reversal of the Court?s judgment on appeal. For an Appellant to secure the reversal of the judgment appealed against, it must be established that the error complained of and establish that such has substantially affected the result of the decision and or occasioned a miscarriage of justice. This the appellant has failed to do. See Olonade v. Sowemimo (2014) ALL FWLR (PT. 750) 1325.However, whether right or wrong, an appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. This is so because where the judgment of the Court is right but the reasons are wrong, the appellate Court does not have to disturb or interfere. See Jikantoro v. Dantoro (2004) ALL FWLR (Pt. 216) 415. PER ELECHI, J.C.A.
WHETHER OR NOT COST FOLLOWS EVENT
It is settled law that costs follow event unless there are circumstances suggesting the contrary such as where the beneficiary misconduct himself. See Anyaso v. Anyaso (1998) 8 NWLR (Pt 564) 159, Biode Pharmacentical Ltd v. Adsell Ltd (1986) 5 NWLR (PT 46)1070, Akinbobola v. Phison Fisko Nig Ltd & Ors (1991) 1 SCNJ 129 AT 133, Ladoja v. Akinkiye & Ors (1975) 2 SC 91 at 97, Obayagbona & Anor v. Obazee & Anor (1972) 5 SC 247 at 253, Haco Ltd v. S.M. Daps Brown (1973) 1 ALL NLR (PT. 1) 423 at 427. The award of costs involves a judicial discretion which must be exercised judicially and judiciously on fixed principles that is according to rules of reason and justice not according to personal opinion. See Wurno v. VAC Ltd (1956) 1 FSC 33 at 34. The exercise of such discretion must similarly not be directed by question of benevolence or sympathy. The award of costs is not meant to be a bonus to the successful party and should not be awarded on sentiment. See Universal Bank of Nigeria Ltd v. Nwaokolo (1995) 11 KLR 919, Rewani v. Festus Okotie-Ebo (1960) 5 FSC 200 at 207. PER ELECHI, J.C.A.
WHETHER OR NOT A TRIAL JDGE HAS THE DISCRETION TO AWARD COSTS OR NOT
A trial judge has a discretion to award costs or not and also as regards the person by whom the costs are to be paid. It is also trite that costs must not be excessive. Costs are regarded as excessive if they cannot be justified in relation to the circumstances of the case. See Melwani v. Chanhira Corporation (1995) 6 NWLR (Pt 402) 447.
Generally, there is there is no right of appeal against an award of costs except with leave of the High Court or this Court by virtue of Section 241(2) (c) of the 1999 Constitution. The exception to this constitutional provision is where in addition to appeal as to costs, there is appeal on other issues or issue. See Anyaso v. Anyaso (1998) 9 NWLR (Pt 564) 157, Anyanboye v. Balogun (1990) 5 NWLR (PT 151) 410.? PER ELECHI, J.C.A.
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ekiti State High Court of Justice sitting in Ido Ekiti Judicial Division which was delivered on the 10th day of October, 2016 by Honourable Justice Adewale Kayode Fowe in suit No HID/4/2011 between Ogundana & Sons Trading Co. Nig. Ltd. & 1 OR V. First Bank Nig. Plc.
Judgment was entered in favour of the Defendant against the Claimant on 10th of October, 2016. The Claimants, being dissatisfied with the judgment of the trial Court, filed a Notice of Appeal dated 24th October, 2016.
FACTS OF THE CASE
According to the appellant, the first claimant, Ogundare & Sons Trading Co. Nig., is a body corporate while the second claimant is the Managing Director and Chief Executive Officer of the first claimant. In October 2006, the Claimants applied for an overdraft of N3,000,000.00 (Three Million Naira) N1,500,000.00 (One Million, Five Hundred Thousand Naira) was approved by the Defendant, First Bank Nig. Plc. The Overdraft was to be paid back within twelve Months at the rate of 18% interest per annum. In October 2008, the
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Claimants applied for a waiver of accumulated interest after they had paid the principal sum of N1, 500,000.00 (One Million, Five Hundred Thousand Naira).
Consequently, the bank wrote a letter dated 7th October, 2008 imploring the Claimants to pay a sum of N1,000,000.00 (One Million Naira) as part of the accumulated interest as a condition precedent for the approval of the additional overdraft loan requested which the plaintiff obediently paid.
Despite all these, the interest was not waived and the additional overdraft loan request was not granted to the claimants. The Manager of Ifaki-Ekiti branch of the defendant selfishly advised the Claimant to write a letter and indicate that N1,000,000.00 (One Million Naira) should be paid as a condition precedent for the grant of the loan which will now form part of the loan repayment.
Succinctly put, the Claimants have paid a sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) to the Defendant. Whereas, it is clear that the Claimant collected only a sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) as loan. There is no evidence before this Court to show that the Claimants were
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granted additional loan of N1,000,000.00 (One Million Naira) or of any other amount.
The appellant/Plaintiffs by their processes claimed the following reliefs viz:
1. DECLARATION that the defendant is not entitled to sell or alienate the property of the Claimant situate at KM2, Ikole Road, Ifaki-Ekiti, Ekiti State under the said purported mortgage which was not secured with legal instrument and without complying with the provisions of the Land Use Act 1978.
2. AN ORDER of this Honourable Court directing the Defendants to release to the Claimant all documents on the Claimants building situates lying at Kilometre 2, Ikole Road, Ifaki-Ekiti illegally kept in custody of the Defendant as same do not form part of this transaction, and was not placed under any mortgage with the defendant.
3. DECLARATION that the Defendant is not entitled to unilaterally vary the rate of interest of the Claimants? account without notice to the Claimants and declare such act null and void.
4. DECLARATION that any debit balance against the Claimant in the books of the Defendant is not a true and accurate reflection of the liability of the Claimants in the
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statement of account with the defendant in that the defendant has raised shares and interest on that at the rate higher than what agreed upon between the parties which is 18% per annum amounting to N270,000.00 (Two Hundred and Seventy Thousand Naira)
5. DECLARATION that the N1,000,000.00 (One Million Naira) paid by the Claimants as interest in the excess of the agreed 18% interest rate and the Claimants are entitled to the refund of N770,000.00 (Seven Hundred and Seventy Thousand Naira) which was wrongly paid to the Defendant.
6. DECLARATION that the claimants are not liable to pay interest, commission or charges on any debit entries improperly or wrongly made by the defendant in its books against the Claimants since the Claimants have paid back the money advanced to them.
7. INJUNCTION restraining the defendant in itself, its agents, servants and/or otherwise however from taking any steps to sell the Claimants property situate at KM2, Ikole Road, Ifaki-Ekiti State since the property is not subject of the loan advanced by the defendant.
8. AN INJUNCTION retraining the defendant by itself, its agents, servants and/or privies or otherwise
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howsoever derive the title from it from taking further step to charge interest on the claimants account in the defendant?s custody/bank at Ifaki -Ekiti branch.
The Respondent/defendant by its statement of defence/counter-claim dated 1/11/2012 and filed on 13/11/2012 counter claim thus:
?The sum of Two Million, Eight Hundred and Sixty-One Thousand Nine Hundred Naira, Sixteen Kobo Only (N2, 861,900.16k) being the balance of the credit facility together with the accrued interest advanced by the counter claimant to the plaintiffs/defendants to the counter claim at the latter?s request which sum the plaintiffs/defendants to the counter claim have refused to repay despite demands.
Interest on the said sum of Two Million, Eight Hundred and Sixty-one Thousand Nine Hundred Naira, Sixteen kobo only (N2,861,900.16k) at the rate of 19% from 1/7/2012 until Judgment and thereafter at the rate of 10% until final liquidation of the judgment debt.
The respondents contends that the credit facilities remain unpaid despite several demands/request for same (Exhibits D8, D9 and D10); rather, by the appellants/plaintiffs? letter dated
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20/10/2008 (Exhibit ?P8 and P4?), the appellants/plaintiffs requested if the respondent/defendant ?can waive interest to enable them commence business again.?
The respondent/defendant by its letter of 7/10/2008 (Exhibits ?P5? and D5?) requested that the principal sum granted be paid to enable the respondent /defendant ?consider your request for interest waiver.”
The appellants/plaintiffs by their further amended statement of claim dated 10/3/2014 and filed on 10/3/2014 contend that the respondent/defendant had waived interest on the credit facilities for them and that they do not owe the respondent/defendant.
To argue the appeal, the Appellant formulated four issues for determination.
1. Whether the judgment of the lower Court is not perverse against the totality of the evidence adduced by the parties in this suit as the evidence was not properly evaluated or fully considered before arriving at the judgment dated 10th October, 2016. Grounds 1, 2, 3 & 4
2. Whether the lower Court erred in Law by stating that the Claimants did not file a reply to the Defendant?s Counter
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Claim when the reply to the Counter Claim was filed as evidence in pages 74-75 of the record of proceedings which claim formed the basis of the judgment when the learned Judge stated unequivocally that, ?the Claimants filed no defence to the Counter-Claim?. Grounds 4, 5 & 6
3. Whether the lower Court can suo moto award the cost of N500, 000.00(Five Hundred Thousand Naira) against the Claimants without any judicious reason(s) or justification as to the use of his discretion which is erroneous and arbitrary in law. Grounds 4 & 7
4. Whether the entire decision of the lower Court actually contain reason or reasons sufficient enough to justify the judgment entered in favour of the Defendant as the entire judgment dated 10th October, 2016 lacked reasons before arriving at same. Grounds 3, 4 & 5
ARGUMENT OF ISSUES
ISSUE 1:
Whether the judgment of the lower Court is not perverse against the totality of the evidence adduced by the parties in this suit as the evidence was not properly evaluated or fully considered before arriving at the judgment dated 10th October, 2016. Grounds 1, 2, 3 & 4
?It is submitted that
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having regards to the totality of the facts, evidence, exhibits and circumstances of this case on record that, the judgment of the lower Court is perverse. The decision of the Court is against the totality of evidence. See UWAH V. AKPABIO (2014) ALL FWLR (Pt. 738) 886 S.C, Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1, Ihewuezi v. Ekeanya (1989) 1 NWLR (Pt. 96) 239. Ihunwo v. Ihunwo & 11 Ors (2013) 2 SC (Pt. 111) 80 at 97.
It is counsel?s submission that the decision of the lower Court is highly speculative when it held that the Deed of Legal Mortgage constituted in this case was never tendered by the claimants but it is at KM2, IKole Road, Ifaki ?Ekiti.
The lower Court relied on the unpleaded evidence of Dw1 when the witness stated that the 2nd loan was given to the Appellant in cash. The respondent in paragraph 8 of its Counter Claim dated 1st November, 2012 at page 30 of the record of Appeal stated the existence of a purported Deed of Legal Mortgage to be relied upon but in trial misdirected the lower Court to believe the Appellant did not tender the same document which emanated from the Respondent and which credibility is against all
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weights of evidence. Hence the lower Court without caution decided to act on such erroneous fact to deliver its judgment against the Appellants.
It is submitted that the judgment of the lower Court is perverse against the evidence led and the pleadings in the Court because the lower Court took into account matters which it ought not to have taken into account. See OKOYE V. NWANKWO (2014) ALL FWLR (PT 756) 471 S.C., See also Gbemisola v. Bolarinwa (2014) ALL FWLR (Pt. 731) 1477 (SC).
Also the judgment of the lower Court is perverse because the Court ignored the obvious especially when the evidence of the PW1 and PW2 were not considered by the Court. The evidence adduced by the Defendant which the lower Court based its judgment upon did not corroborate the assertion that the claimant obtained another loan of N100,000.00 (One Million Naira). The Appellants have paid sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) to the Respondent. Whereas, it is clear that the Appellants collected only the sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) as loan.
It was clear in evidence that the other loan which the Claimant
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applied for was the one in respect of which the C of O of his property at Kilometre 2, Ikole Road Ifaki-Ekiti, Ekiti State was used as a collateral but no returned back to the Claimants upon several demands. The evidence of PW1, PW2 and DW1 is crystal clear about this. The lower Court ignored this obvious and salient fact. Despite the fact that the second loan was not granted to the Appellants, the Respondent refused to return the C of O back to the Claimants/Appellants.
According to learned counsel there was misconception in the judgment of the lower Court arising from the discrepancy between the decision of the Court at paragraph 3 of page 302 of the Record of proceedings that the variation of the terms of this facility was unilateral on the Respondent and the evidence of DW1 at paragraph 3 of page 300 of the record of proceedings that the rate of interest is controlled by the Central Bank of Nigeria. This means the variation in the conditions of granting overdraft/loan facility with the accrued interest rates chargeable on each overdraft/loan facility per annum was independent on the Respondent the First Bank Nig. Plc whereas, it is totally
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inconsistent with the evidence of the 1st Respondent witness that the interest rate is controlled by the Central Bank of Nigeria and not the Defendant. These are relevant but complicated facts the lower Court ought to have based its findings and adjudicate upon.
It is also stated that the lower Court did not specifically consider the Bank statement of the claimants to ascertain the entry of the money paid by the Appellant and to see whether or not the second loan was granted to the Appellant by the Respondent.
It is obvious that the Central Bank?s directives on variation for the year were not placed before the lower Court but the lower Court relied on speculation because no document was placed before it.
On the basis of the above, the Court is urged to resolve this issue in favour of the Appellant.
ISSUE 2
Whether the lower Court erred in Law by stating that the Claimants did not file a reply to the Defendant?s Counter Claim when the reply to the Counter Claim was filed as evidence in pages 74-75 of the record of proceedings which claim formed the basis of the judgment when the learned Judge stated unequivocally that,
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?the Claimants filed no defence to the Counter-Claim.” Grounds 4, 5 & 6.
It is stated the Appellant filed a reply to Counter Claim as forming part of the record in pages 74 & 75 of the record of proceedings dated 17th April, 2013. That same is titled ?Reply to statement of Defence/Counter-Claim instead of ?Reply to Statement of Defence/Defence to Counter ?Claim? does not affect the substance of this salient part of the Appellants? pleadings.
Again, all the averments in this part of the Appellant pleadings have been sufficiently covered by the written statements on oath of the two witnesses called by the Appellants before the lower Court.
And so it submitted that the lower Court failed to properly evaluate the evidence placed before it when it held that ?The Claimants did not file a reply to Defendants Counter Claim?. In determining the proper approach of trial Court to evaluation of evidence, See in the case of REGD. TRUSTEES, DEEPER CHRISTIAN LIFE MINISTRY V. OWUNWANNE (2011) ALL FWLR (Pt. 589) 1044, Arik Air Nigeria Ltd v. Punch Nig. Ltd (2016) ALL FWLR (Pt. 844) 2010.
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Learned Appellant counsel submitted that the lower Court erred in its judgment when it held that the Appellants filed no defence to the counter-Claim nor did that trial Court evaluate the evidence adduced in Court like the exhibits and other processes including the Reply to the statement of defence/counter-claim properly filed. The trial Court failed to evaluate Exhibits and D11 together with Exhibit D2 & D6 to reflect when bank entries were made to affirm the payment by the bank and the withdrawal by the claimants. The trial Court therefore failed to evaluate Exhibit P4 and D11 because the figures referred by the lower Court were not in the entry book which is the statement of account which emanated from the Respondent.
The Court is urged to re-evaluate the evidence led at the trial as settled in the case of Salisu v. Mobolaji (2017) ALL FWLR (Pt. 874) 1785 SC, Ebba v. Ogodo (2000) FWLR (Pt. 27) 2094, Sagay v. Sajere (2000) FWLR (Pt. 7) 1111.
The evidence of DW1 especially during cross-examination was totally not pleaded. There is nowhere in the pleadings and even in the record of proceedings that the loan of N5,000,000.00 (Five
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Million Naira) was granted to the Appellant contrary to this fact, DW1 stated that the mortgage property of the Appellant was in respect of the loan of N5,000,000.00 (Five Million Naira). The lower Court ought to discountenance with the evidence that was not pleaded. The lower Court relied generally on unpleaded facts in arriving at its judgment, the Appellant contended that they are contesting the validity of the letter of acceptance of over-draft of N5 million dated 09/1/2008 which emanated from the Respondent during trial, the existence of which was never admitted in evidence as the reliance on it by the trial court is a nullity ab initio. Also the acceptance of the overdraft does not guarantee the money paid to ?the acceptee rather there is no record either in Exhibit P4 or D11 which shows that any of such was granted to the claimants that this piece of evidence is not pleaded nonetheless, the Court relied on it in its judgment. See Emmanuel v. Umana (2016) ALL FWLR (Pt 856) 214.
The Court is prayed to reverse the judgment of the lower Court and to resolve this issue in favour of the Appellant.
ISSUE 3
Whether the lower Court can suo
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moto award the cost of N500,000.00 (Five Hundred Thousand Naira) against the Claimants without and judicious reason(s) or justification as to the use of his discretion which is erroneous and arbitrary in law. Grounds 4 & 7
Under this issue, it is submitted that in the exercise of its discretion, the trial Court was overzealous to have awarded a cost of N500, 000.00 against the Appellant who was done no wrong but desired and entitled to substantial justice. Onyekwulunne v. Ndulue (1997) 7 NWLR (PT. 512) 277. According to learned Appellant?s counsel, the circumstances that led to the award of the cost was quite arbitrary and the parties were not allowed to adduce and put before the Court the issue of cost before awarding it.
It is contended that the lower Court failed to consider and reflect on Exhibits P6 and P7 and the evidence of the 1st Defence witness which was admitted in evidence that the Claimants have paid N2.5 million to the Defendant and that the payments were made in 2008 which settled the principal sum and the accrued interest in the overdraft of N1,500,000.00 (One Million, Five Hundred Thousand Naira) without more. There was no
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evidence to adduce as regards accrued interest claimed because according to the evidence of 1st Defence witness, the rate of interest of N2,861,900.16k (Two Million, Eight Hundred and Sixty One Thousand, Nine Hundred Naira and Sixteen Kobo) cannot be ascertained since the Central Bank of Nigeria controlling the system was silent about it hence, the Claimants were not indebted to the Defendant. The trial Court?s reliance on the outstanding sum of N2,861,900.16k (Two Million, Eight Hundred and Sixty One Thousand, Nine Hundred Naira and Sixteen Kobo) as the main thrust and basis to award a cost of N500,000.00(Five Hundred Thousand Naira) against the Appellant and in favour of the Respondent arbitrary, erroneous, wrong and ridiculous in law. See NAUDE V. SIMON (2014) ALL FWLR (Pt. 753) 1878.
ISSUE 4
Whether the entire decision of the lower court actually reason or reasons sufficient enough to justify the judgment entered in favour of the Defendant as the entire judgment dated 10th October, 2016 lacked reasons before arriving at same. Grounds 3, 4 & 5
It is submitted that the entire judgment of the lower Court as contained in pages 294-303
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of the Record of Proceedings lacks reason. The entire proceeding that produced the judgment of the lower Court was predicated on speculative facts rather than reasons. According to the Black?s Law Dictionary, 6th Edition, a judgment is defined as the final determination of a Court of competent jurisdiction upon matters submitted to it. It is the conclusion of law upon facts found or admitted by the parties or upon their default in the course of the case.
Also that a cursory look at the judgment of the lower Court shows that the judgment lacks legal flavour and attributes of a valid judgment. See Oro v. Falade (1995) 5 SCNJ 10 at 31.
According to learned Appellant counsel, the judgment of the Court must state the reasons upon which the Court?s decision is based. The Court must give cogent and compelling reason or reasons as to why the evidence of one party is to be preferred to that of another. It cannot merely state that it believes the evidence of one party than the other party without any reason or justification for such a belief. The provision of Section 75 of Evidence Act 2011 cited by the Lower Court at page 302 of the record is
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totally wrong and irrelevant to evidence and admissibility of documents as regards Exhibit D4 on which the Court based its judgment.
The judgment of the lower Court lacks fair hearing when it failed to consider the evidence of the Appellants including the reliefs sought in the Appellants statement of Claim and the evidence adduced in the Appellants witness statement on Oath. See COOKEY V. FOMBO (2005) ALL FWLR (Pt. 271) 25 at 37.
Learned counsel therefore submitted that the judgment of the trial Court is devoid of fair hearing and it amounts to a nullity and ought to be set aside. See CITEC INT?L ESTATES LTD V. FRANCIS (2014) ALL FWLR (PT. 738) 934 (SC), NDAKUABA V. KOLOMO (2005) ALL FWLR (PT. 248) 1602, (2005) 4 NWLR (PT 915) 411.
The Court is urged to resolve this issue in favour of the Appellant.
The Respondent by its statement of defence and counter-claim dated 1/11/2012 and filed 13/11/2012 counter-claim thus:
?The sum of Two Million, Eight Hundred and Sixty One, Nine Hundred Naira Sixteen Kobo (2,861,900.16k) being balance of the credit facility together with the accrued interest advanced by the counter-claim to the
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plaintiff/defendants to the counter-claim at the latters request which sum the plaintiff/defendants to the counter-claim have refused to repay despite demands.
(b) Interest on the said sum of Two Million, Eight Hundred and Sixty One Thousand, Nine Hundred Naira, and Sixteen Kobo (2,861,900.16K) at the rate of 19% from 1/7/2012 until judgment and thereafter at the rate of 10% until final liquidation of the judgment debt.
On their own part, the Respondent formulated four issues for determination thus
1. Whether the judgment of the lower Court is not perverse against the totality of the evidence adduced by the parties in this suit as the evidence was not properly evaluated or fully considered before arriving at the judgment dated 10th October, 2016. Grounds 1, 2, 3 & 4
2. Whether the lower Court erred in Law by stating that the Claimants did not file a reply to the Defendant?s Counter Claim when the reply to the Counter Claim was filed as evidence in pages 74-75 of the record of proceedings which claim formed the basis of the judgment when the learned trial Judge stated unequivocally that, ?the Claimants filed no defence to the
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Counter-Claim?. Grounds 4, 5 & 6
3. Whether the lower Court can suo moto award the cost of N500,000.00(Five Hundred Thousand Naira) against the Claimants without and judicious reason(s) or justification as to the use of his discretion which is erroneous and arbitrary in law. Grounds 4 & 7
4. Whether the entire decision of the lower Court actually reason or reasons sufficient enough to justify the judgment entered in favour of the Defendant as the entire judgment dated 10th October, 2016 lacked reasons before arriving at same. Grounds 3, 4 & 5
Under issue one which is
Whether the judgment of the lower Court is not perverse against the totality of the evidence adduced by the parties in this suit as the evidence was not properly evaluated or fully considered before arriving at the judgment dated 10th October, 2016. Grounds 1, 2, 3 & 4
It is submitted that the decision of the lower Court is not perverse. The decision of the lower Court is based on evidence on record and not speculations; the lower Court did not take into account what it ought not to have taken into account nor did the lower Court ignore the
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obvious.
It is contended that by relief 1 of the appellants, the appellants in the lower Court sought a declaration that the Respondent ?is not entitled to sell or alienate the property of the claimants situate at KM2, Ikole Road, Ifaki-Ekiti, Ekiti State under the said purported mortgage which was not secured with legal instrument and without complying with the provisions of the Land Use Act 1978.”
The Appellants by paragraph 16 of their further amended statement of claim averred that ?their building at km2, Ikole Road, Ifaki-Ekiti, Ekiti State was not attached as collateral for the overdraft facilities? but failed to state either in their pleadings or evidence which of the properties was attached as collateral to the overdraft facilities granted them by the respondent.
The Respondent by paragraphs 10 and 11 of their statement of defence (see pages 26-31 of the record) stated emphatically that the appellants used their property as security for the overdraft facilities, and by Exhibit D3, the appellants wrote to the respondent thus:
?With reference to an application dated 29th September, 2006 requesting for
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overdraft of N1.5, Million, we hereby undertake to bear all the cost of legal mortgage on our property securities.
The appellant testified thus under cross-examination:
?I agree that the defendant granted the claimants an overdraft facility. I gave as security for the overdraft the building I erected Ifaki ?Ekiti the documents which are in possession of the defendant.? (See page 220 lines 13-15)
Incidentally, the appellants agreed that the 2nd appellant gave his title document to the Respondent, but added that it is in respect of an overdraft facility which was not granted by the Respondent.
Also Exhibit D3 and the evidence of the 2nd appellant (Who testified as 2nd witness of the Claimant of the claimant at the lower Court) puts a clear lie on the evidence on the assertion of the appellants that the building at KLM. 2, Ikole Road, Ifaki-Ekiti was not used as security for the overdraft facility and is not the subject of the ?purported Mortgage? (using the phrase of the appellants in their reliefs). The appellants have a duty to place the ?purported Mortgage? before the lower Court.<br< p=””
</br<
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Even when the lower Court made the remark in page 302 of the Records of Appeal to the effect that:
?The deed of legal mortgage constituted in this case never tendered by the claimants but it is as km2, Ikole Road, Ifaki-Ekiti. It is not the business of the court to speculate.?
The lower Court was therefore restating the obvious that the Court cannot speculate on the mortgage deed not before it.
Also there is no specific order of the lower Court on the Deed of Legal Mortgage throughout the judgment appealed against. No order was made by the lower Court in favour of either party in respect of the Deed of Legal Mortgage. So any submission by the Appellant in respect thereof is misconceived.
Rather, it is the appellants who sought a declaration by their relief 1 that ?the defendant is not entitled to sell or alienate the property of the claimants situate at km2, Ikole Road, Ifaki-Ekiti, Ekiti State under the said purported mortgage which was not secured with legal instrument and without complying with the provisions of the Land Use Act 1978? that has a burden duty to place such ?purported Mortgage? before
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the lower Court and without the ?purported mortgage being tendered by the Appellants, it will be highly speculative for the Court to make such declaration of ?without complying with the provisions of the Land Use Act 1978. See ISA V. IGE (2012) ALL FWLR (PT. 644) 127
Learned counsel contended that the lower Court cannot speculate or find as a fact that a ?mortgage? is purported or did not comply ?with the provision of the Land Use Act 1978? without such mortgage being placed before the lower Court by the appellants who seeks such declaration. A declaratory judgment must not be entered on pleadings but evidence; judgment must not be based on speculation. See: MATANMI V. DADA (2013) ALL FWLR (PT. 682) 1682 AT 1658.
In Law, a party who seeks a right or declaration under a document must place such document before the Court as no reasonable Court or Tribunal can rely on speculative document to make an award or grant a relief. See. Olalomi Industries Ltd v. NIDB (2002) ALL FWLR (PT. 131) 1984 AT 1999, para E.
?The Court, like any sensible human being, deals with only issues and matters that are before it. It does not
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speculate or assume things that have not appeared before it for consideration. See F.B.N. V. T.S.A. Ind. Ltd. (2007) ALL FWLR (Pt. 1719 at 1743, even PW11 who is the 2nd Appellant testified under cross examination and said:
?I gave as security for the overdraft the building I erected (sic) Ifaki-Ekiti the documents which are in possession of the defendant.
The above admission of the PW11 under cross-examination according to learned counsel placed a lie on relief 1 of the appellants. And so the submission by the Appellant that the lower Court went on a voyage of perversity is misconceived.
It is the contention of the appellants that the evidence of the respondent?s witness (DW1) ?Mr Gbenga Oriola is self-contradicting is baseless and does not flow from the evidence before the Court. It is a well established legal principle that counsel?s submission and address are designed to or meant to assist the Court and it should not be coloured as no amount of brilliance in counsel submission can make up for lack of evidence to prove and establish or else disprove and demolish the points in issue. Counsel?s
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address/submission is not part of evidence and should not be equated with resolution of issues by the Court. See: ADEKANMBI V. JANBGBON & SONS. (Nig.) Ltd. (2007) ALL FWLR (Pt. 383) pg. 152 at 163, paras D-E; OLONADE V. SOWEMIMO (2014) ALL FWLR (PT. 1329, Paras G-H; Ajayi v. Total (Nig.) Plc. (2014) ALL FWLR (Pt. 719) pgs. 1082-1083, paras. H-A
The Court is urged to discountenance the appellants? counsel submission.
On the contention of the appellants in paragraph 5.08 of their brief of argument that the lower Court ?ought to consider the intention? of the appellants in their letter for waiver of interest dated 20/10/2008 in the interest of justice is misplaced and erroneous. This is in view of the fact that Courts do not deal with the intention of parties but concrete facts placed before it. It would amount to speculation for the lower Court to consider the intention of the appellants as opposed to the clear and plain wordings of the letter dated 20/10/2008. Court should not act on speculations; it is not the business of courts to speculate. Speculation is not only an unfortunate frolic, it also leads the Court to act or
26
decide in an arbitrary manner. See Daniel v. I.N.E.C. (2015) ALL FWLR (PT. 789) PG. 1031, IGWEMOH V. IGWEMOH (2015) ALL FWLR (PT 801) Page 1568.
From the above, it is submitted that the lower Court was right in holding that the respondent has not agreed to any waiver in the business with the Appellant as there was no evidence of waiver of interest before the lower Court as could be evident on the 2nd witness (PW2) in an answer under cross examination. See Exhibits P2 and D5 which all emanated from the appellants.
The Appellants? contention in paragraph 5.09 of their brief of argument that the appellants have paid a sum of N2,500,000.00 to the respondent whereas it is clear that the appellants collected only the sum of N1,500,000.00 as loan is false and erroneous and contrary to their letter dated 20/10/2008 (Exhibits P2 and D5) written to the respondent. (See pages 131 and 221 of the records). A portion of the letter read thus:
?We applied for an overdraft of 1.5 Million in year 2007 and the overdraft was granted as working capital for the sale of petroleum products in our filling station. When the money was not enough, we were given
27
N1 Million Naira as temporary excess
The above facts contained in Exhibits P2 and D5, it is contended is consistent with paragraph 5 of the respondent?s statement of defence where it was averred thus:
?The defendant states that the plaintiff was enjoying an overdraft facility of N1,500,000.00 (One Million Five Hundred Thousand Naira Only) as well as temporary excess of N1,000,000.00 (One Million Naira Only).”
The averment above was denied by the appellants in paragraph 2 (a) of their reply to statement of defence even in the face of the said Exhibits P2 and D5 which emanated from them; this makes the appellants unreliable and untruthful; oral evidence denying the collection of additional temporary excess of One Million Naira (N1,000,000.00) was adduced by the 2nd appellant in paragraphs 17 and 18 of his written witness statement on oath.
?
Learned counsel submitted that documents must be used as hangers with which to assess the veracity of any made up oral evidence. Parol evidence may be coloured to suit the whims and caprices of the witness but documentary evidence remains sacrosanct and inviolate at all
28
times. See Ogundipo v. Olumesan (2012) ALL FWLR (Pt. 609) pgs. 1148-1149, paras. H-A. Similarly, inOsibowale v. Carribean Finance Ltd. (2012) ALL FWLR (Pt. 627) Pg. 742, paras. F-G.
Also submitted is that where there is conflict in the evidence of witnesses, documentary evidence will serve as a hanger on which the truth shall be resolved. Documents tendered as exhibits are vital as they do not embark on falsehood like some mortal beings. SeeBFI V. Group Corp. v. Bureau of Public Enerprise (2013) ALL FWLR (Pt. 676) pg. 467, para. E.
The inconsistencies or contradictions in the appellants? pleadings as well as the 2nd appellant?s oral evidence and Exhibits P2 and D5 are material discrepancies which constitute substantial disparagement of the 2nd appellant (PW2). See: Yakubu v. Jauroyel (2014) ALL FWLR (Pt. 734) 1 at 36, paras. G-H.
Contrary to the contention of the appellants at paragraph 5.10 of their brief of argument, there is nothing in evidence indicating or pointing to the fact that it was in respect of the ?other loan? which the appellants applied for the 2nd appellant?s property at Kilometre 2, Ikole
29
Road, Ifaki-Ekiti, Ekiti State was used as a collateral. The 2nd appellant (PW2) in unmistakable terms stated under cross-examination thus:
?I agree that the defendant granted the claimants an overdraft facility. I gave as security for the overdraft the building I erected (sic) Ifaki Ekiti the documents which are in possession of the defendant.?
The above evidence elicited under cross-examination buttresses the respondent?s case and pleadings that the 2nd appellant used his property as security for the overdraft advanced to the appellants; Exhibit D1 and D3 also lay credence to this fact thus it cannot be rightly said that the lower Court ignored any obvious and salient fact in this regard or handed down a perverse decision.
Assuming without conceding that there was an error of law committed by the lower Court, it is submitted that it is not every error of law that is committed by a trial or appellate Court that justifies the reversal of the particular Court?s judgment on appeal. For an appellant to secure the reversal of the judgment he appeals against, beyond establishing the error he hinges his complaint upon, he must
30
go extra mile of establishing that the error complained of and established has substantially affected the result of the decision and/or occasioned a miscarriage of justice. See OLONADE V. SOWEMIMO (2014) FWLR (PT 750) pg 1325, paras. D-E.
The appellants have woefully failed in this regard.
In the same vein, it is submitted that an appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of the Court is right but the reasons are wrong, the appellate Court does not interfere. See Jikantoro v. Dantoro (2004) ALL FWLR (PT. 216) Pg. 415, para. C.
On the whole, learned counsel urged the Court to resolve this issue against the appellants.
ARGUMENT ON ISSUE TWO
Whether the lower Court erred in Law by stating that the Claimants did not file a reply to the Defendant?s Counter Claim when the reply to the Counter Claim was filed as evidence in pages 74-75 of the record of proceedings which claim formed the basis of the judgment when the learned Judge stated unequivocally that, ?the Claimants filed no defence to the Counter-Claim.” Grounds 4, 5 & 6.
31
The appellants? issue two is:
?Whether the lower Court erred in Law by stating that the Claimants did not file a reply to the Defendant?s Counter Claim when the reply to the Counter Claim was filed as evidence in pages 74-75 of the record of proceedings which claim formed the basis of the judgment?.?
According to learned counsel, it is pertinent to note that contrary to what the appellants stated above, the learned trial judge never held in the entirety of the lower Court?s judgment ?that the claimant did not file a reply to the defendant?s counter-claim? as what was lucidly stated by the learned trial judge in his judgment was that: ?The claimants filed no defence to the counter-claim? (See page 303, lines 9-10 of the record). This finding of the lower Court reflects the factual situation in this case.
Accordingly, where a judgment represents what the Court has pronounced, it should not be varied as to its operative or substantive part. See FAMU V. KASSIM (2013) ALL FWLR (Pt 674) 661.
?
It is contended that in ascertaining whether the appellants indeed filed a
32
defence to the counter-claim, it is important to peruse page 74 of the record of appeal which contains a process titled ?Reply to statement of Defence/Counter-claim.”
In both substance and form, there is nothing in the entirety of the said process contained in page 74 of the record that has the trappings and/or features of a defence to counter-claim which is the Court process (within the contemplation and cognizance of the law and rules of the lower Court) by which averments in a counter-claim are traversed or responded to.
Order 18 Rule 2 of the Ekiti State (Civil Procedure) Rules, 2011 provides thus:
?Where a counter-claim is pleaded, a reply thereto is called defence to counter claim and shall be subject to the rules applicable to defences.?
A counter-claim for all intent and purposes is a separate and independent action and it is joined to the main suit only for reason of convenience and speed. See Alhaji Haido & Anor v. Usman (2004) ALL FWLR (Pt. 201) 1765 at 1781.
A counter-claim is subject to the rules of pleadings and proof. See KALEJAYE & ORS V. OGUNDENA (2002) FWLR (PT. 85) 287 AT 311.
33
In addition, even the purported ?Reply to statement of defence/counter-claim? filed by the Appellant is incompetent by virtue of being filed out of time prescribed by the said rules without any application to remedy or regularise this affect. The said process having been filed out of time and in breach of Order 15 Rule of the High Court of Ekiti State (Civil Procedure) Rules 2011 is incompetent. See L.M.P Ind Ltd v. U. H. S. L. Ltd (2011) 7 NWLR (Pt 1247) 519 at 532., NWANKWO V. ABAZIE (2003) 12 NWLR (Pt. 834) 381 at 412.
Furthermore, contrary or Order 17 Rule 1 of the Rules of the lower Court, the said document filed by the claimants was not ?supported by copies of documentary evidence, list of witness, and their written statement on oath.”
The piece of paper filed by the appellants on 17/4/2013 being incompetent then, the respondent?s counter-claim is accordingly undefended and in such situation, the burden of proof on the respondent is minimal where no evidence is led on the other side; the respondent has discharged its evidential burden in the instant case. SeeIragunima v. Uchedu (1996) 1 NWLR (Pt. 428) 30 at 49.<br< p=””</br<
34
Against the foregoing backdrop, the Court is urged to resolve this issue against the appellants.
ARGUMENT ON ISSUE THREE
Whether the lower Court can suo motu award the cost of N500, 000.00 (Five Hundred Thousand Naira) against the Claimants without and judicious reason(s) or justification as to the use of his discretion which is erroneous and arbitrary in law. Grounds 4 & 7.
Against the backdrop of the contention of the appellants in paragraph 7.01 of their brief of argument that although ?It is the discretion of the Court to award cost against a party or litigant who erred in civil matters, nevertheless, the lower Court was overzealous with its discretion to have awarded the cost which is outrageous against the claimants who have done no wrong but entitled to substantial justice.?
It is submitted that the learned trial judge has ample powers to award cost in the instant case to the respondent who is the successful litigant at the lower Court, in compliance with Order 49 Rule 6 of the High Court of Ekiti State (Civil Procedure Rules 2011).
?
To justify the award of cost, learned counsel stated that it is apparent that this
35
suit was instituted since 2011 and judgment delivered on the 10th day of October 2016 (a period of almost 6 years) encompassing several Court appearances made during these period and filing fees also incurred since the Respondent is not a government agency who is precluded from paying filing fees.
The dispute between parties flows from credit facilities since granted the appellants by the respondent from the monies of other customers and investors which credit facilities remain unpaid by the appellants. This conduct of the appellants is to say the least reprehensible and unconscionable, he submitted. See Oyedeji v. Akinyele (2001) FWLR (Pt 77) 1001.
Worthy of note as contended by learned counsel is that the learned trial judge properly exercised his discretion to award the cost so awarded and the said award should be allowed to stand as the appellants have not successfully established or demonstrated that the cost awarded is excessive and arbitrary in view of the surrounding facts and circumstances of this case. The discretionary power of the learned trial judge was exercised both judicially and judiciously in the sense that it was not capricious but
36
for a reason connected with the case and based on sound judgment, wisdom and good sense. See: Ajobena (Rtd) v. Mujakperuo (Rtd) (2015) ALL FWLR (Pt. 779) 1005 at 1021-1022 paras. H-B, P.1024, Paras. B-E.
It is a well-established principle of law that where a trial Court exercises its discretion in a proper manner, that is to say judicially and judiciously, the appellate Court will be reluctant to question such exercise of discretion. See Layinka v. Makinde (2002) FWLR (Pt. 109) pg. 1572, paras. B-D; Master Holding (Nig) Ltd. v. Okefiena (2012) ALL FWLR (PT. 648) PG. 941, paras. E.
In addition, the Appellants have failed to refer to any law, act or provision of the Ekiti State High Court (Civil Procedure) Rules 2011 which the award of N500, 000 by the trial judge infringes. See University of Uyo v. Akpan (2014) ALL FWRL (Pt. 736) 529.
However, it is not enough or sufficient for an appellant to merely (based on his imagination) allege that an award of cost by the Court is not based on judicial and judicious exercise of Court?s discretion, it behoves on the appellant to successfully demonstrate and show what makes the award of cost not a product
37
of judicial and judicious exercise of discretion before an appellate Court can interfere with such exercise of discretion by the trial Court.
The law is settled that the Appellate Court will not interfere with the discretionary exercise of the lower Court on ground that if faced with the same situation it would have exercised the discretion differently. SeeLafferi Nig Ltd v. N. M. B PLC (2015) ALL FWLR (PT 802) 1600.
In conclusion, the Court is urged not to interfere with the lower Court?s exercise of discretion as it concerns the award of cost as there is no basis for such interference but to resolve this issue against the appellants and in favour of the respondent.
ARGUMENT ON ISSUE 4
Whether the entire decision of the lower Court actually reason or reasons sufficient enough to justify the judgment entered in favour of the Defendant as the entire judgment dated 10th October, 2016 lacked reasons before arriving at same. Grounds 3, 4 & 5.
It is the contention and/or opinion of the appellants that the decision of the lower Court is devoid of reason to justify the judgment delivered against them.
?
Conversely, it is
38
submitted that the judgment of the lower Court contains reasons upon which the decision was reached. The appellants are not under any obligation or compulsion to be satisfied with the reason adduced by the lower Court for decisions.
It is submitted that an appellate Court concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of the Court is right but the reasons are wrong, the appellate Court does not interfere. See. Jikantoro v. Dantoro (2004) ALL FWLR (Pt. 216) pg. 415, para. C.
In the same vein, it is settled law that the appellate Court will not interfere with a decision correctly reached by a trial Court even if the reason for the decision is faulty. See: Fakoya v. Ijelu (2015) ALL FWLR (Pt. 762) pg. 1664, para. C; Attorney General Leventis (Nig) Plc v. Akpu (2007) ALL FWLR (Pt. 388) 1028.
Also that from the state of pleadings, facts, circumstances and evidence in this case, the judgment of the lower Court cannot be rightly said to be wrong by the appellants.
All the evidence (both oral and documentary) adduced by the appellants before the lower Court were not in any way
39
sufficient to ground the reliefs being sought by them and the lower Court was right to refuse the grant of the reliefs. See Otun v. Otun (2004) ALL FWLR (Pt 227) 407 at 425.
From the records, part of what appears in dispute between the parties herein from the pleadings is that while the appellants claim that a waiver was granted by the respondent for the appellant to pay the sum of One Million Naira (N1M) in full and final settlement of their indebtedness to the bank, the respondent states that there was no such waiver, and the documents tendered establish clearly that no waiver as alleged by the appellant exist, then the appellants remain indebted to the respondent and an order for the release of the title documents used as security for the loan cannot be made by the trial Court as the credit facility remains fully unpaid.
By Exhibit ?D4?, the appellants made a request for waiver of interest to the respondent when they (the appellants) wrote:
?We shall therefore be grateful if you can waive the interest to enable us commence business again.?
Also by Exhibit D5 (which is also P5), the respondent wrote to the
40
appellants to ?arrange to pay the balance of the principal sum which is one Million Naira (N1M) to enable us consider your request for interest waiver.”
Furthermore, it is on the basis of Exhibit D5 that the appellants posit in this case that interest waiver had been granted to them hence they are not indebted to the respondent and by relief 2 of their further amended statement of claim, they asked for the release of the documents of the building they used as security.
It is not in dispute that Exhibit D5 is a document. In law, when a document is duly pleaded, tendered and admitted in evidence, that document becomes the best evidence of its contents and therefore speaks for itself. See: Emeje v. Positive (2009) ALL FWLR (Pt. 452) 1056 at 1074 (paras. C-D).
Where the words used in a document are clear and unambiguous, the Court must confine itself to the plain words as expressed. See:
Dantata v. Muhammed (2013) ALL FWLR (Pt. 675) at 300 (paras. C-R); Intels Nig. Ltd. v. Bassey (2013) All FWLR (Pt. 675) at 384 (paras. F-A); Adam v. Umar (2010) ALL FWLRR (PT. 513) 1289 at 1388 (Paras. B-D.); Intels Nig. Ltd. v. Bassey (2013) all FWLR
41
(Pt. 675) 376 at 384.
Learned respondent contended that a look at the clear and plain wordings of Exhibit D5 shows clearly that it is not the intention of the respondent to grant a waiver of interest in that letter (i.e Exhibit D5) and Court in interpreting a document must give effect to the intention of the respondent to grant a waiver in that letter (Exhibit D5) and the Court in interpreting a document must give effect to the intention of the parties and not to re-write the document or the agreement. See Afro Technical services Ltd v. M. I. A. & Sons Ltd. (2001) FWLR (PT. 35) 64 (SC).
The 2nd appellant testifying as PW2 admitted under cross-examination on 5/10/2015 (page 220, lines 15-16 of the record) that there is no waiver of interest from the defendant to the claimants when he stated thus:
?There is no letter from the bank granting request for waiver interest.?
From the records, it is contended that there is nothing in Exhibit D5 that approves a waiver of interest in favour of the appellants by the respondent and the lower Court cannot read into Exhibit D5 what is not there.
?
Therefore, having established by evidence
42
that there was no interest waiver, it is lucidly clear in evidence as shown in Exhibit D11 (the statement of account) that the appellants are still indebted to the respondent. Exhibits D8, D9 and D10 are letters of demand issued to the appellants at various stages. It is interesting to note that the appellants at any given time never challenged or protested against Exhibits D11, D8, D9 and D10 and there is no such evidence before the lower Court.
Also, the fact that the appellants are still indebted to the respondent is strengthened by Exhibit D4 when the appellants wrote in the said D4 (see page 20 of the record) thus:
?We applied for an overdraft of 1.5 Million in year 2007 and the overdraft was granted as working capital for the sale of petroleum products in our filling station.
When the money was not enough, we were given One Million Naira only (N1M) as temporary excess.
Having put the station in order, the money fell short of the amount that is needed to lift petrol for sale.
Interest started to increase the balance to its present level of N3.7 Million.?
Furthermore, from Exhibit D4 which is dated 20/10/2008, the
43
appellants admitted the then ?present level? of their indebtedness to be ?N3.7 Million.?
Exhibit P6 and P7 produced by the appellants only show a total payment of N2.5 Million leaving a total balance of N1.7 Million from the ?present level of N3.7 Million? admitted by the appellants.
Learned counsel contended ordinarily that in law, a Court cannot order the release of the security used for obtaining loan until the mortgage receives its money to the last kobo. See Yaro v. Arewa Construction Ltd. (2008) ALL FWLR (Pt. 400) 603 at 640 (paras. G-H), THE Supreme Court, per Chukwuemeka-Eneh J.S.C, Ndaba Nig. Ltd v. U. B. N. Plc (2008) ALL FWLR (Pt. 436) 945 at 1973, Nigeria Advert Services Ltd v. U.B.A. PLC (1999) 8 NWLR (PT. 616) 546 at 556, Nigeria Housing Society Ltd v. Mumuni (1977) 2 SC 57.
It is contended that the dispute as to the amount owed cannot affect the rights of the mortgage (the Respondent in this case) to hold unto its security except the debtor/mortgagor (the Appellants herein repay the amount claimed by the mortgagee (the bank) in full. See Intercity Bank PLC Feed & Food Farms Nig Co (2002)
44
FWLR (PT. 128) 1289 at 1299, Omidiji v. Federal Mortgage Bank (2002) FWLR (Pt 103) 393 at 413.
In addition to all the above, learned Counsel still contends that by Section 15 of the court of Appeal Act Cap C 36 Volume 4, Laws of the Federation of Nigeria 2004, this Court has the power to make any order necessary for determining the real question in controversy and generally has full jurisdiction over the whole proceedings as if the proceeding had been instituted in this Court as a Court of first instance.
In the instant case, the evidence of the parties and the exhibits of the parties are before the Court and they establish that the Appellants failed to prove their case and the Court has the power to come to the conclusion as the learned trial Court did, dismiss the case of the Appellants and grant the counter claim of the Respondent. See Danladi v. Dangiri (2015) ALL FWLR (pt. 768) 815 at 873, Inakoju v. Adeleke (2007) ALL FWLR (Pt 353) 3.
The Court is urged to resolve this issue in favour of the Respondent.
Also the Court is urged to dismiss the appeal and affirm the decision of the lower Court. Also to grant the counter-claim.
45
In a reply brief dated 12th April, 2007 and filed on 15th April, 2019 the Appellants in reply paragraph 3.47-3.51 of the Respondent?s Brief the Appellants herein submit that the issue being raised is a matter of nomenclature. That the Appellants? process before the lower Court was titled ?Reply to Statement of Defence/Counter Claim instead of ?Reply to Statement of Defence and Defence to Counter-Claim? is a mere misnomer or irregularity that did not and still does not negatively affect the substance of the Appellants? pleadings. Again, the averments in the said process were already covered by the written statements on oath of claimants?/Appellants? witnesses and all related documents were already before the Court. What is more, the objection herein being raised by the respondent is belated. And the Appellants humbly urge this Honourable Court to so hold.
In conclusion, he urged the Court to allow the appeal and set aside the judgment of the lower Court.
RESOLUTION OF ISSUES
In resolving the issue in this appeal, I shall and hereby adopt the issue formulated by the Appellant for the just determination of
46
this appeal thus
1. Whether the judgment of the lower Court is not perverse against the totality of the evidence adduced by the parties in this suit as the evidence was not properly evaluated or fully considered before arriving at the judgment dated 10th October, 2016. Grounds 1, 2, 3 & 4.
To appreciate this issue, it may be necessary to look at the instances where the decision of a Court would be regarded as perverse in Zira & Anor v. Vandu & Ors(2017) LPELR-42994 (CA) this Court stated that ?There are a galaxy of decisions of the apex Court and this Court on the characteristics of a perverse judgment. In the case of Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136, the Supreme Court per Uwaifo JSC (Rtd) at page 152 para C-D succinctly set out the characteristics of a perverse judgment as follows:
A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence, or that it misconceived the thrust of the case presented, or took irrelevant matters into account which substantially formed the basis of its decision or went outside the issues canvassed by the parties to the extent of
47
jeopardizing the merit of the case or committed various errors which faulted the case beyond redemption. The hallmark is invariably, in all this a miscarriage of justice and the decision must be set aside on appeal. See Atolagbe v. Shorun (1985) 1 NWLR (PT. 2) 360, Adimora v. Ajufo (1988) 3 NWLR (Pt. 80), Agbomeji v. Bakare (1998) 7 SC (PT 1) 10, (1998) 9 NWLR (Pt. 56) 1, Odiba v. Azege (1998) 7 SC (Pt. 1) 79, (1998) 9 NWLR (Pt. 566) 370.
This Court has therefore been called upon to interfere in the alleged perverse judgment and set same aside so as to remedy the situation.
In the instant case, the Appellants averred in paragraph 16 of their amended statement of claim thus:
?Claimants aver that their building at Km 2 Ikole Road, Ifaki-Ekiti was not attached as collateral for the over-draft facilities. Also the intimidation and harassment that the building will be sold is misconceived.”
On the otherhand, by paragraph 10 and 11 of the statement of defence it is stated that the Appellants used their property as security for the overdraft facilities.
Paragraph 10
?In specific answer to paragraph 12 of the statement of
48
claim, the defendant states as security for the credit facilities advanced to the plaintiff at the latter?s request, the plaintiff executed in favour of the defendant a letter of undertaking dated 4/10/2006 to the effect that the plaintiff undertook ?to bear the costs of legal mortgage on the property securities?
Paragraph 11
?Further to paragraph 10 above, the plaintiff executed in favour of the defendant, a deed of legal mortgage dated 15/6/2007 and registered as 53/53/35 in the lands registry at its office at Ado-Ekiti. The said deed of legal mortgage shall be relied upon at the trial of this case. The defendant denies intimidating or harassing the plaintiffs but shall contend at the trial that as a legal mortgage, it has the right over the mortgage property.?
By Exhibit D3, it could be seen that the Appellants submitted a correspondent to the Respondents and stated thus
?With reference to an application dated 29th September 2006, representing for overdraft of N1.5 Million, we undertake to bear all the cost of legal mortgage on our property securities.?
In addition, the Appellants on the
49
5/10/2015 testified under cross-examination thus:
?I agree that the defendant granted the claimants an over-draft facility. I gave as security for the overdraft the building I erected at Ifaki Ekiti, the documents which are in possession of the defendant.
I deny receiving any additional over-draft from the defendant. There is no letter from the bank granting the request for waiver interest.?
Even PW2 who is the 2nd Appellant testified under cross-examination and said:
?I gave as security for the over-draft the building I erected (sic) Ifaki-Ekiti the documents which are in the possession of the defendant.?
By the above admission, it cannot be said that the judgment of the lower Court was a voyage of discovery and perversity as such submission by Appellant is highly misconceived, and I so hold because in the eye of the law, the evidence garnered through cross-examination is more reliable and dependable than that through examination in chief. See Adeosun v. Governor, Ekiti State (2012) 4 NWLR (Pt 1291) 1 and also Okuleye v. Adesanya (2014) 12 NWLR (Pt 1422) 521. Exhibits D1 and D2 lay credence to the fact that the
50
lower Court did not ignore any obvious and silent fact in this regard or hand over a perverse judgment. Furthermore, Exhibit D3 and the supporting evidence of the 2nd Appellant puts its clear before the whole world that the building at KLM 2, Ikole Road, Ifaki Ekiti was used as security for the overdraft facility and it is the subject of the mortgage.
As part of the allegation that the judgment of the lower Court is perverse, appellants contend that the Court failed, neglected or agreed with any waiver in the business with the Appellants and that the lower Court in the interest of justice ought to have considered the Appellants intention in their letter for waiver of interest dated 20th October, 2008 herein before referred. With respect to learned Appellant Counsel, this is an unfortunate submission. Courts of law do not deal with the intention of parties in a suit but on concrete facts placed before it, and cannot also speculate as that will lead the Court to act or decide in an arbitrary manner which is not allowed in law. See Daniel v. INEC (2015) ALL FWLR (PT. 789) 1031, IGWEMOH V. IGWEMOH (2015) ALL FWLR (PT. 801) 1568. There is no evidence whatsoever that
51
the Respondent agreed to any waiver in the transaction.
Even if there was any error of law committed by the lower Court as submitted by the Appellant, such was not substantial to justify a reversal of the Court?s judgment on appeal. For an Appellant to secure the reversal of the judgment appealed against, it must be established that the error complained of and establish that such has substantially affected the result of the decision and or occasioned a miscarriage of justice. This the appellant has failed to do. See Olonade v. Sowemimo (2014) ALL FWLR (PT. 750) 1325.
However, whether right or wrong, an appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. This is so because where the judgment of the Court is right but the reasons are wrong, the appellate Court does not have to disturb or interfere. See Jikantoro v. Dantoro (2004) ALL FWLR (Pt. 216) 415.
In the instant appeal, what appears to be the most disturbing contention of the Appellant is that the Appellant have paid the sum of N2,500.000.00 to the Respondent when it is clear that the Appellants collected only the sum of
52
N1,500,000.00 as loan is false and erroneous contrary to their letter dated 20/10/2008 (Exhibit P2 and D3 written to the Respondent), part of it reads thus;
?We applied for an overdraft of N1.5 Million in 2007 and the over-draft was granted as working Capital for the sale of Petroleum products in our filling Station. When the money was not enough, we were given N1 Million Naira as temporary excess.?
The above facts are consistent and in tandem with paragraph 5 of the Respondents statement of defence where it is averred;
?The defendant states that the plaintiff was enjoying an overdraft facility of N1.5 Million as well as temporary excess of N1Million.”
Surprisingly, the above facts were denied by the Appellants in paragraph 2(a) of their reply to the statement of defence thus;
?The defendant/counter-claimant did not give the plaintiffs a temporary excess of N1, 000,000.00 (One Million Naira).”
On the contrary, Exhibit P2 and D5 emanated from the Appellants. The said exhibits as documentary in nature can be used as hangers with which to assess the veracity of the appellants that they did not receive the
53
excess N1 Million Naira. Evidence in Exhibits P2 and D5 are sacrosanct as to the truth of the issue at stake that the appellants are not reliable and truthful in the transaction at hand. See Ogundepo V. Olumesan (2012) ALL NWLR (PT 609) 1148-1149. Where the Court said;
?The position of the law is that the most reliable if not the best evidence is documentary evidence. It is certainly more reliable than oral evidence. In Aliki v. Idowu (2009) 9 NWLR (Pt. 948) 47 at 45 the Court held as follows:
?Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more authentic and reliable than words from the vocal cord of man because they are neither transient nor subject to distortion and misrepresentation but remain permanent and indelible through the ages. The documents bear eloquent testimony of what happened.
This issue is resolved in favour of the Respondents.
ISSUE 2
?Whether the lower Court erred in law by stating that the claimant did not file a reply to the defendants counter-claim when the reply to the counter-claim was filed as evidence in pages 74-75 of the record
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of proceedings which claim formed the basis of the judgment when the learned trial judge stated unequivocally that ?the claimants filed no defence to the counter-claim ground 4, 5 and 6.”
Contrary to the issue raised above, the lower Court stated at page 303 of the record that:
?the claimants filed no defence to the counter-claim. However, at page 74 of the records, the Appellants filed a process ?Reply to Statement of Defence/counter-claim dated 14th April, 2013 and filed on the 17th April, 2013.?
By Order 18 Rule 2 of Ekiti State (Civil Procedure) Rules, 2011 provides thus:
?Where a counter-claim is pleaded, a reply thereto is called a defence to counter-claim and shall be subject to the Rules applicable to defences.?
A counter-claim for all intents and purposes is a separate and independent action and merely joined to the main suit only for reasons of convenience and speed. See Alhaji Haido & Anor V Usman (2004) ALL FWLR (Pt 201) 1765 at 1781.
Even though, the Respondent submitted that by the provision of Ekiti State (Civil Procedure) Rules 2011 above cited that the Court process titled
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?reply to Statement of Defence/counter-Claim” does not amount to a defence to counter-claim, nonetheless, what appears more worrisome is that the said process was filed out of time without any application to remedy or regularize the defect.
From the records, the Respondent?s statement of defence/counter-claim dated 1/11/2012 and filed on the 13/11/2012 but granted on the 20/11/2012. By the provisions of Order 15 Rule 3 of the High Court of Ekiti State (Civil Procedure) Rules 2011, the Appellants have 14 days from 20/11/2012 to file a reply to the statement of defence and defence to the counter-claim if any. However, on the 17/4/2013 (more than 4 months) after deeming the statement of defence/counter-Claim as properly filed and served, the Appellants filed a document titled ?Reply to Statement of Defence/Counter-Claim? and same was never regularized by order of Court. Where a process is filed outside the time prescribed by the law, that process is said to be incompetent. See L.M.P. Ind Ltd v. U. H. S. L Ltd (2011) 7 NWLR (Pt 1247) 519 at 532, Nwankwo v. Abazie (2003) 12 NWLR (Pt. 834) 381 at 412.
This Court in the case of
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Adefemi v. Abegunde (2004) ALL FWLR (Pt 303) 2009 at 2125 per His Lordship Onnoghen (JCA as he then was) in a similar situation as in the instant appeal, had this to say:
?The legal effect of filing the brief of the 3rd – 6th Respondents out of time and without an order of this Court extending the time to do so is that there is no legally recognizable brief of argument in respect of the appeal. This Court cannot look at the purported brief of argument filed since it is not proper before the Court having been filed in circumstances earlier stated. The said brief is hereby discountenanced. What it means therefore is that the Appellant has no brief of argument in respect of the appeal.? See Ojigho v. Mukoro & Ors. (2013) LPELR -20871 (CA).
From what has been demonstrated above, there is no doubt in my mind that the Appellants process titled ?Reply to Statement of Defence/Counter-Claim filed on the 17/4/2013 is incompetent and is hereby discountenanced accordingly.
The legal consequence is that the Respondent?s Counter-Claim is undefended. In such a situation, the burden of proof on the Respondent is minimal as there is no
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evidence led on the other side. The evidential burden on the Respondent is thereby discharged. See Iragunima v. Uchedu (1996) 1 NWLR (Pt 428) 30 at 49.
This issue is resolved in favour of the Respondents.
ISSUE 3
Whether the lower Court can suo motu award the cost of N500,000.00 (Five Hundred Thousand Naira) against the Claimants without any judicious reason(s) or justification as to the use of his discretion which is erroneous and arbitrary in law.? Grounds 4 & 7.
The essence of costs is to compensate the successful party for part of the loss incurred in the litigation, but it can not cure all the financial loss sustained in the litigation process. Costs serve as some cushioning or palliate effect on the financial burdens of the party in victory, and once the Court is satisfied that the purpose is attained, it could give an extra order which may have the effect of punishment to the party who has lost in the litigation contest. See Registered Trustee of Ifeloju v. Kuku (1991) 5 NWLR (Pt. 189) 65. It is settled law that costs follow event unless there are circumstances suggesting the contrary such as where the beneficiary
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misconduct himself. See Anyaso v. Anyaso (1998) 8 NWLR (Pt 564) 159, Biode Pharmacentical Ltd v. Adsell Ltd (1986) 5 NWLR (PT 46)1070, Akinbobola v. Phison Fisko Nig Ltd & Ors (1991) 1 SCNJ 129 AT 133, Ladoja v. Akinkiye & Ors (1975) 2 SC 91 at 97, Obayagbona & Anor v. Obazee & Anor (1972) 5 SC 247 at 253, Haco Ltd v. S.M. Daps Brown (1973) 1 ALL NLR (PT. 1) 423 at 427. The award of costs involves a judicial discretion which must be exercised judicially and judiciously on fixed principles that is according to rules of reason and justice not according to personal opinion. See Wurno v. VAC Ltd (1956) 1 FSC 33 at 34. The exercise of such discretion must similarly not be directed by question of benevolence or sympathy. The award of costs is not meant to be a bonus to the successful party and should not be awarded on sentiment. See Universal Bank of Nigeria Ltd v. Nwaokolo (1995) 11 KLR 919, Rewani v. Festus Okotie-Ebo (1960) 5 FSC 200 at 207. It follows therefore that the discretionary powers of the Court in awarding cost must be judicially and judiciously.
It is an acceptable practice in law for appellate Court not to interfere with
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the exercise of discretion by lower Courts. In this regard, appellate Courts seldom interfere with the exercise of discretion in awards of costs except where such discretion is not exercised judicially and judiciously. See Nwanbani v. Golden Breweries Plc (1995) 6 NWLR (Pt 400) 191. A trial judge has a discretion to award costs or not and also as regards the person by whom the costs are to be paid. It is also trite that costs must not be excessive. Costs are regarded as excessive if they cannot be justified in relation to the circumstances of the case. See Melwani v. Chanhira Corporation (1995) 6 NWLR (Pt 402) 447.
Generally, there is there is no right of appeal against an award of costs except with leave of the High Court or this Court by virtue of Section 241(2) (c) of the 1999 Constitution. The exception to this constitutional provision is where in addition to appeal as to costs, there is appeal on other issues or issue. See Anyaso v. Anyaso (1998) 9 NWLR (Pt 564) 157, Anyanboye v. Balogun (1990) 5 NWLR (PT 151) 410.?
In the instant case, the trial judge in awarding cost did not state what he took into consideration in arriving at what was the
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appropriate costs in the circumstances of the case. The Court at page 303 of the record only said;
?The defendant is awarded the sum of N500,000.00 as cost in this proceedings.”
Since the award of costs is at the discretion of the Court, there is no obligation on the part of the Court to give reasons for the award or factors it took into consideration in fixing the award of costs in the body of the judgment so long as from the costs awarded it would appear to a reasonable man that the Court exercised its discretion judicially and judiciously. There are however a plethora of authorities indicating that costs can be awarded on the ordinary principle of genuine and reasonable out of pocket expenses and normal counsel cost usually awarded for a leader or one or two juniors. See International off shore Construction Ltd v. S.I.N Ltd (2003) 16 NWLR (Pt. 845) 157. There is no universal table for fixing costs because costs follow events.
In Daily Times Nigeria Ltd v. Chief William (1986) NWLR (Pt 36) 526, the trial judge award the Respondent N1,000.00 exemplary damages and N1,000.00 cost. The Appellant appealed, the Court held as per Ademola
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JCA (as he then was) held;
?I do not regard it as excessive because all factors must have been taken into consideration.”
In the instant appeal, taking into consideration that the suit was instituted since 2011 and judgment delivered on the 10th day of October, 2016 (a period of nearly 6 years) which encompasses several Court appearances and filing fees incurred and counsel fees also. I am therefore of the opinion that the award of N500, 000.00 is not excessive in view of the staggering value of the Naira.
This issue is resolved in favour of the Respondent.
ISSUE 4
?Whether the entire decision of lower Court actually contains reason or reasons sufficient enough to justify the judgment entered in favour of the defendant/Respondent as the entire judgment dated 10th October, 2016 lacked reasons before arriving at same. Ground 3, 4, & 5
It is the contention of the Appellants that the entire judgment of the lower Court lacks reason, fair hearing and amounts to a nullity. As such it is devoid of any reason to justify the judgment delivered against them. See Citec Int?L Estates Ltd v. Francis (2014) ALL FWLR
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(Pt. 738) 934 (sc), Ndakuaba v. Kolomo (2005) ALL FWLR (PT 248) 1602.
What must be at the background is that an appellate Court is concerned only whether the judgment appealed against is right or wrong not whether the reasons are. This is so because where the judgment of the Court is right but the reasons are wrong, the appellate Court does not interfere. See Jikantoro v. Dantoro (2004) ALL FWLR (Pt. 216) 415. In the same vein, it is settled law that the appellate Court will not interfere with a decision correctly reached by a trial Court even if the reason for the decision is faulty. See Fakoya v. Ijelu (2015) ALL FWLR (Pt. 762) 1664, Attorney General Leventis Nig PLC V. Akpu (2007) ALL FWLR (Pt 388) 1028. From the state of the pleadings, facts, circumstances and evidence in this case, I do not hold the view that the judgment of the lower Court is wrong contrary to the submission of the Appellant. Rather, it is the oral and documentary evidence adduced by the Appellant at the lower Court that was not sufficient to ground the reliefs sought by them, hence the refusal to grant same by the lower Court.
?
The crux of the dispute between parties in this
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matter is that while the Appellant claim that a waiver was granted by the Respondent for the Appellant to pay the sum of One Million Naira only in full and final settlement of their indebtness to the bank, the Respondents state that there was no such waiver whichever party is right or wrong will be ascertained from the records and evidence in Court.
In Exhibit D4, the Appellants made a request for a waiver of interest rate to the Respondent thus;
?We shall therefore grateful if you can waive the interest to enable us commence business again.”
In reply, the Respondents wrote by Exhibit D5 (which is also P5) to the Appellants thus
?Arrange to pay the balance of the principal sum which is one million (N1m) to enable us consider your request for interest waiver.?
In their own understanding though not correct, the Appellant felt and assumed that interest waiver had been granted to them and consequently they are no more indebted to the Respondent. In view of that, and pursuant to relief 2 of their amended statement of claim, requested for the release of the documents of the building used as security for the loan. From
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my humble opinion in this case, I do not see any evidence either oral or documentary to backup Appellants assertion that waiver has been granted them. It was a figment of their own imagination after considering the contents of Exhibit D5. The said Exhibit D5 is a documentary evidence and infact the best evidence in law of its contents and therefore speaks for itself. See Emeje v Positive (2009) ALL FWLR (Pt. 452) 1056 at 1074.
It appears that the Appellants have read into Exhibit D5 what is not there. In the case of Intels Nig Ltd v. Bassey (2013) ALL FWLR (PT. 675) 376 at 384, the Court held;
?Again, it is still good law, that parties can not read into a document what is not there or read out of it what is there. Thus, a Court in the invocation of its interpretative jurisdiction will only pronounce on the clear wordings contained in any document?..?
There is nothing in Exhibit D5 that approves a waiver of interest in favour of the Appellants by the Respondent. To fortify this point, the 2nd Appellant who testified as PW2 admitted under cross Examination on the 5/10/2015 that there is no waiver of interest from the defendant
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to the claimants when he stated thus;
?There is no letter from the bank granting the request to the waiver interest.?
The Respondents tendered Exhibit D11 which is the Appellants Statement of Account to the effect that the Appellants are still indebted to them. They followed it up at various stages with demand notice ?Exhibit D8, D9 and D10 but to no avail.
The Appellants apparently admitted the indebtedness in Exhibit D4 which read thus;
?We applied for an overdraft of 1.5 million in year 2007 and the overdraft was granted as working capital for the sale of petroleum products in our filing station.?
When the money was not enough, we were given one million naira only (N1m) as temporary excess.
Having put the station in order, the money fell short of the amount that is needed to lift petrol for sale. Interest started to increase the balance to its present level of N3.7 Million. Exhibits P6 and P7 tendered by the Appellants show a total payment of N2.5 Million leaving a balance of N1.7Million from the present N 3.7 Million admitted by the Appellants through Exhibit D4 dated 20/10/2008.
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With the outstanding indebtedness of the Appellants, no Court can order the release of the security used for obtaining the loan until the mortgagee receives its money to the last kobo. See Yaro V. Arewa Construction Ltd (2008) ALL FWLR (Pt. 400) 603 at 640 (SC), Ndaba Nig Ltd v. UBN PLC (2008) ALL FWLR (PT 436) 1945, Nigeria Advert Service Ltd (1999) 8 NWLR (Pt 616) 546 at 556.
Flowing from the above, I agree with the Respondent?s counsel submission that in view of the outstanding indebtedness of the Appellant to the Respondent, the lower Court can not compel the Respondent to part with its security in respect of a credit facility and the Court cannot also grant other relief sought by the Appellant.
In its limited function in determining disputes between parties, the Appellate Court does not try the case, it does not see nor hear witnesses testify and as a result, it does not experience the subtle and often influencing nuances of seeing and hearing witnesses give account of facts upon which findings are based by a trial Court. An appellate Court upon complaints made to it is concerned with seeing whether a trial Court has or has not failed to make any or
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proper findings which the evidence available deserves and accordingly to take such decisions in the interest of justice by way of correction on confirmation of the decision of the trial Court. See Layinka v. Makinde (2002) FWLR (Pt 109) 1570.
On the other hand, by Section 15 of the Court of Appeal Act 2004, this Court has the power to make any order necessary for determining the real question in controversy and generally has full jurisdiction over the whole proceeding as if the proceedings had been instituted in this Court as a Court of first instance.
From the exhibits tendered and since a greater part of the case is based on documents, the lower Court was right in dismissing the Appellants reliefs, this Court has the jurisdiction like the lower Court come to the conclusion to dismiss the case of the Appellants and grant the counter-claim of the Respondent in line with the authorities ofDanladi v. Dangiri (2015) ALL FWLR (Pt. 768) 815 at 873, Inakoju v. Adeleke (2007) ALL FWLR (pt. 353) 3.
All the exhibits tendered in this suit were duly considered by the trial Court. There was no issue of lack of fair trial or that the judgment is devoid of any
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reason or reasons. In view of all the above, I hereby resolve this issue in favour of the Respondent.
All the three issue in this appeal having been resolved in favour of the Respondent, the fate of this appeal is already obvious. The appeal has no merit and is hereby dismissed.
The judgment of the lower Court is hereby affirmed. Also the counter-claim of the Respondent is upheld. N50, 000.00 cost to the Respondent.
Appeal dismissed.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in the draft form, the judgment just delivered by my learned brother P.O ELECHI, JCA. I agree with his reasoning and final conclusions. I have nothing useful to add.
FATIMA OMORO AKINBAMI, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother PAUL OBI ELECHI, JCA. He has dealt in great details with all the issues raised in the appeal, and I agree with his reasoning and conclusions in the lead judgment. I have nothing useful to add, I therefore adopt the judgment as mine.
?I also dismiss the appeal, same
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being unmeritorious.
I abide with the consequential orders made in the lead judgment.
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Appearances:
Dr. Ademola OjekunleFor Appellant(s)
E. Udofot with him, L.E. Udofot, Esq.For Respondent(s)
Appearances
Dr. Ademola OjekunleFor Appellant
AND
E. Udofot with him, L.E. Udofot, Esq.For Respondent