THE MARKET RESEARCH CONSULTANCY LIMITED v. AMOS AMUABUNOSI & ANOR
(2019)LCN/13492(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of June, 2019
CA/L/73/2015
RATIO
A COMPANY IS A JURISTIC PERSON AND CAN ACT THROUGH ITS AGENTS OR ALTER EGO
See; MMA INC & ANOR v NMA (2012) LPELR – 20618; Where the Court held that the company is a juristic person, it can act through an alter ego, either its agents or servant. See also MARINE MANGEMENT ASSOCIATION INC & ANOR v NATIONAL MARITIME AUTHORITY (2012) LPELR -20618 (SC); KATE ENT. LTD v DAEWOO NIG LTD (1985) 2 NWLR (PT. 5) 116.
In the case of FAIRLINE PHARMACEUTICAL INDUSTRIES LTD & ANOR v TRUST ADJUSTERS NIG. LTD (2012) LPELR – 20860 (CA) this Court, per TSAMMANI, JCA, said:
“…it is the law that, a Company being an artificial person cannot act on its own person. It can only act through directors and therefore the acts of the director are merely that of ordinary case of principal and agent. In other words, where a director enters into a contract in the name of the incorporated body, it is the company, the Principal, which is liable not the director. The director is therefore not personally liable, unless it appears that he undertook personal liability such as, where he signs the contractual document without signifying that he was signing on behalf of the company. In other words, where a director signs a contract in his name without disclosing either the name or the existence of a Principal, would be held liable personally in the contract to the other party to the contract, even though he is in fact acting on the Principal’s behalf. See B. B. APUGO & SONS LTD. Vs. O. H. M. B. (2005) 17 NWLR (PT.954) 305 and ATAGUBA & CO. VS. GURA (NIG.) LTD., (2005) 8 NWLR (PT.927) 429.”PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
INSTANCES WHEN THE APPELLATE COURT CAN INTERFERE IN THE CASE OF THE TRIAL COURT
In ANEKWE & ANOR v NWEKE (2014) LPELR ? 22697 (SC); BASSIL v FAJEBE (2001) LPELR ? 757 (SC)
“The law is well settled to the effect that whenever there is a complaint that the trial Court did not properly evaluate the pieces of evidence proffered by witnesses before him and make findings based on such evidence, the appellate Court is in as good a position as the trial Court to examine and evaluate the evidence placed before the trial Court. If the appellate Court finds that there are inadequacies on the part of the trial judge in reaching its decision premised on perverse findings, the former has a duty to examine the inferences and conclusion reached by the trial Court and then re-evaluate the evidence in order to come to its judgment, to see that justice is dispensed to the parties evenly. Mkpinang v. Ndem (2013) 4 NWLR (Pt.1344) 302 at 321 (SC) 1; Adedayo v. People’s Democratic Party & Ors (2013) All FWLR (Pt.695) 203 at 234, 265-266 (SC); David Akpan & Ors V. Udo Utih & Ors (1996) 6 SCNJ 244 at 265; Jason Umesie & Ors V. Prof Hyde Onuaguluchi & Ors (1995) 12 SCNJ 120 at 134-135; Lion Building Ltd v. Shadipe (1976) 12 SC.35. …..PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
THE PRIMARY DUTY OF THE TRIAL COURT JUDGE
This principle of the law was more recently re-echoed by the apex Court in NACENN (Nig) Ltd v. Bewac Automotive Producers Ltd (2011) LPELR 8125 (SC), thus: “The law is very well crystallized that it is the primary duty of the trial judge to receive all relevant evidence. That is perception. The next task for the judge is to weigh the evidence. That is evaluation. A finding of fact involve both perception and evaluation.” Per Bode Rhodes-Vivour, JSC.”
per YAKUBU, J.C.A (PP. 7-8, PARAS. B-D)PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PARTIES AND COURTS ARE BOUND BY THEIR TERMS OF AGREEMENT
It is trite that parties and the Court are bound by terms of agreement, see BABA v NIGERIAN CIVIL AVIATION & ANOR (1991) LPELR – 692 (SC), Where NNAEMEKA AGU, JSC held that;
Parties enjoy their freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms are invariably ,the guide to its interpretataion.”PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
THE MARKET RESEARCH CONSULTANCY LTD Appellant(s)
AND
1. AMOS AMUABUNOSI
2. BEULAH PRESS LIMITED Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against a Judgment delivered on 30th June, 2014 by the High Court of Lagos state per PEDRO, J., dissatisfied the appellant filed a notice of appeal dated 30th January, 2017 on 6 grounds;
The 1st respondent had filed a claim at the lower Court for the following reliefs;
?1. AN ORDER that the defendants are jointly and severally liable to pay the claimant the sum of N2,512,000.00 (Two Million, Five Hundred and Twelve Thousand Naira) made up of loaned sum of N400,000.00 and interest of N2,112,000.00 on the loan granted to the first defendant on the 29th January 2003, upon the guarantee of the second defendant.
2. AN ORDER that the claimant is entitled to be paid interest at 12% per month on the loaned sum up and until the said loaned sum is fully liquidated.
3. AN ORDER directing the defendants to pay the aforesaid sum as in relief (1) and (2) herein to the claimant.
4. AN ORDER that the defendants pay 6% interest per-annum on the judgment sum until the aforesaid sum is fully liquidated.
?5. Cost of this action
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estimated at N50.000.00 (Fifty Thousand Naira).”
The trial judge had entered judgment for the 1st respondent as follows;
1) Defendants are jointly and severally liable to pay the claimant the sum of N400,000 (four hundred thousand) outstanding loan granted to the 1st defendant on 29th January, 2003 upon the guarantee of the 2nd defendant
2) It is also ordered that the defendant shall pay interest at the rate of 12% per month on the loan from February 2003 till judgment’s date.
3) That the claimant is entitled to an order directing the defendant to pay the aforesaid sum in reliefs 1& 2 herein to claimant.
4) That the Defendant shall pay post judgment interest at the rate of 6% per annum from the date of the judgment until final liquidation of the judgement sum
5) Cost of N30,000.OO (Thirty Thousand Naira) is ordered in favour of the Claimant against the Defendants.
It is against this judgment that the Appellant has filed his notice of appeal. The parties filed and exchanged briefs, at the hearing on the 7th of May, 2019; the 2nd Respondent was represented by Mr. Akinbowale, Esq who informed the Court that
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he had not filed brief and could not say when same would be ready. The appeal had been adjourned since 12th November, 2018 for hearing to the present date of hearing yet no attempt was made to file 2nd Respondent brief and being a 2015 appeal, hearing proceeded.
?
The Appellant?s brief is filed on 5/10/17and was settled by G.O Nona, Esq of G.O Nona & Co, where – in 4 issues were distilled thus;
a) The 1st Respondent granted a loan to the 2nd Respondent. The Appellant guaranteed a loan to Elder P. A. Ajani personally, not the 2nd respondent. from the facts and evidence before the Court, is the contract of guarantee valid and enforceable against the Appellant with no consensus ad idem between the Lender and the Guarantor on the person of the borrower, and in a suit of the 1st Respondent against the 2nd Respondent for a loan not guaranteed by the Appellant to the 2nd Respondent, is the Appellant a proper party? (Distilled from Ground 1)
b) Whether the Honourable trial Court ought not to have pronounced on the issues of lifting the corporate veil of the 2nd Respondent and of past consideration when these issues were raised for determination
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by the Appellant. (Distilled from Ground 3).
c) Whether the 2nd Respondent is entitled to interest on the loaned sum N400,000.00 (Four Hundred Thousand Naira) beyond the agreed period of 6 weeks, the period for which the purported guarantee was restricted or given? (Distilled from Ground 4)
d) Whether there is sufficient evidence before the trial Court to prove that demand for payment was made to the guarantor in this suit and where no such demand notice was placed on it, is the guarantor liable for the debt of the principal debtor and interest thereon?
The Respondent?s brief was filed in 3/7/18 deemed on 12/11/18 same was settled by Emmanuel Okorie, Chris Ottih, Tolulope Olugbon, Oluwagbenga Ige, Tochukwu Umeaku, Laura Boiye all of Okorie & Okorie. One issue was distilled by them thus;
?Whether the technicality of who guaranteed the loan or to whose benefit the loan, subject of this appeal was guaranteed for is sufficient to set aside the judgment of the lower Court.
ARGUMENTS OF APPELLANT
The Appellant contended that it guaranteed a loan of N400,000 (Four Hundred Thousand) to Elder
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P. O. Ajani personally by the letter of 29th January, 2003 (Exhibit C2), and on this strength the 1st Respondent, gave a loan of N400,000 to Beulah Press Ltd and that nothing was on record that Appellant knew the 2nd Respondent or that Elder P. O. Ajani was the Managing director of the 2nd Respondent but that the loan was given to Beulah Press and not to Elder Ajani, the borrower defaulted in repaying the loan, and the 1st Respondent then sued the 2nd Respondent and the Appellant, whose guarantee of loan was in favour of Elder P. O. Ajani personally.
He posit that no fact was pleaded in evidence showing that Exhibit C2 was a sequence to Exhibit C1 which were written on the same day, on the 29th January, 2003. He contended that Exhibit C2 mentioned Elder P.O. Ajani personally and not a company to which he was managing director, that the evidence shows that the loan was granted on 13th January, 2003.
Appellant submits that there is no agreement between lender and guarantee on beneficiary of the loan. He further contended that since no loan was given to him the appeal must fail, he relied on BEST (NIG) LTD v BLACKWOOD HODGE (NIG) LTD & SONS (2011)
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5 NWLR (PT 1239) 95 at 127; BILANTE INTER LTD v NIG DEPOSIT INSURANCE COP (2011) 14 NWLR (PT 1270) 407 at 423; PETER YESEFUL ONUMIYAN v ACCESS BANK PLC (2015) 9 NWLR (PT 1463) 159 at 180, all to the effect that there was no contract, and therefore the Appellant cannot be bound by it.
He relied on J & J TECHNO (NIG) LTD v YUBAL H QUALITY LTD (2015) 8 NWLR (PT1460)1 @ 21; EZEKEIL OKOLI v MORECAB FINANCE NIG LTD (2007) 14 NWLR (PT 1053) P 57 to the point that an individual is different from a company.
Appellant further contended that he the guarantor was not given the loan therefore, the guarantor cannot be asked to answer for the loan of a stranger. That there was no cause of action and he was not a proper party.
He further contended that under ground 5, the judgment was given against Mr. Sola Akinnagbe (trading under the name and style of marketing research consultancy) and that he was neither a party in the suit nor guaranteed the loan granted to the 2nd Respondent thus leading to miscarriage of justice. He urged the Court to hold that it?s a nullity.
?
Appellant contended on issue 2 distilled from ground 3, that the issue of past
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consideration was raised in the Appellant?s reply of 26/3/2012, that the loan was given and guaranteed were pleaded but in what form it was given was not stated but under cross examination he admitted he gave a loan, he relied on UNION BANK OF NIG PLC v F.E ORHARHUGE (2000) 2 NWLR (PT645) 495 at 516.
Appellant further contended that the loan had been given before the guarantee was given and this renders the guarantee unenforceable against the appellant, but the lower Court failed to pronounce on it, and failed to determine the question of lifting the corporate veil of the 1st Respondent. He in addition submitted that in the absence of fraud the 1st Respondent must be seen as separate and distinct from its chairman and managing director to whom the loan was guaranteed personally. He cited in aidOGED OVUNWO & ANOR v IFEANYICHUKWU WOKO & ANOR (2011) 17 NWLR (PT 1277) 522 at P 546 – 547 that all issues must be dealt with by a Court. That failure to dwell on these led to miscarriage of justice and breach of fair hearing.
In addition, the Appellant submitted on his issue 3 that there was an agreement between parties that the loan was for
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six to eight weeks and repayment within six to eight weeks was what was purportedly guaranteed. The 2nd Respondent had said he paid the loan with interest of N200,000,00 (Two Hundred Thousand Naira). He cited UBA PLC & ANOR v M.A LAWAL (TRADING UNDER THE NAME AND STYLE OF MAL (NIG) ENTERPRISES) (2008) 7 NWLR (PT 1087)613 AT 633.
He submitted that interest follow events with date and time and that agreed interest runs from the date the agreement came into effect to the date it expired. He stated that for the period of the loan the rate of 12% applied but at expiration of 8 weeks at most, interest no longer accrues, therefore, the award of interest beyond eight weeks of the loan is in error and caused grave injustice, he called in INTERGRATED DIMENSIONAL SYSTEMS LTD ORS v ARICAN INTERNATIONAL BANK LTD (2002) 4 NWLR (PT. 758) 660 at 682-683.
Finally, the Appellant on issue 4 formulated from ground 6 referred to page 34 of the judgment and submitted that assuming he is liable, there was no evidence that Exhibit C1 was delivered or served on the Appellant. He relied on INTERGRATED DIMENSIONAL SYSTEMS LTD ORS v ARICAN INTERNATIONAL BANK LTD (2002) 4
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NWLR (PT. 758) 660 at 682-683 and argued further that the written demand addressed to the principal debtor copied to the surety without evidence of service of written demand on surety was not sufficient notice to the Appellant especially as the 2nd Respondent asserts that it has paid the loan. He urged the Court to allow the appeal.
1ST RESPONDENTS ARGUMENTS
The 1st Respondent?s in addition to arguing its sole issue raised herein also seeks leave to briefly respond to the issues raised by the Appellant in its brief argument dated the 4th October, 2017
The 1st Respondent submits that the best way to highlight that the totality of the Appellant?s appeal centers on the technicality of who guaranteed the subject loan or to whose benefit the loan was granted for an examination of the following documents ;
? Application for loan
? Letter of guarantee
He submits that from the letters it is clear that the managing director was acting for and on behalf of the Appellant when he authorised/guaranteed the loan and that the lower Court evaluated the testimonies
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of witnesses before arriving at the clear judgments, that the Appellants are clutching on to technicality that the loan was personal. He referred to the case of ALHAJI ATIKU ABUBAKAR,GCON & ORS v ALHAJI UMARU MUSA YAR?ADUA & ORS (2008) 1SC (PT 11) 77 at 122.
He urged the Court to resolve the two issues
On issues two raised by the Appellant, he submits that arguments on lifting the veil was baseless and that testimonies and letters tendered were sufficient to fish for information. He said the case of OGED OVUNWO & ANOR v IHEANYICHUKWU WOKO & ANOR (2011) 17 NWLR (PT 1277) 522 was inapplicable.
That the letters have same dates therefore arguments on past records are irrelevant.
On issue 3 raised, he submitted on the authorities of REUBEN N.A. EKWUNIFE v WAYNE (W. A) LTD (1989) 5 NWLR (PT. 122) 422 andALFOTRIN LTD v AG FEDERATION (1996) 9 NWLR (PT 475 at page 633)
That the lower Court was right on award of interest on money owed and 6% interest per annum until the judgment sum is fully liquidated.
?
Also on issue 4, he said the Appellant attacked the evaluation of testimonies of witnesses by the learned judge, and it was the duty of
10
Court to do, he relied on PANALPINA v WARIBOKO 9 NSCC PG 21 at 24.
1st Respondent referred to page 24 of records that the lower Court properly evaluated the evidence, and the judgment of the Court is in tandem with the evaluation done, he relied in INTERGRATED DIMENSIONAL SYSTEMS LTD & 2 ORS v AFRICAN INTERNATIONAL BANK LTD (2002) 4 NWLR (PT. 758) at 686.
That the lower Court found at page 34 that Exhibit C3 was sent to the 2nd defendant hence there is no merit in the submission.
In reply on points of law, the Appellant re emphasised his Appellant?s brief.
RESOLUTION
The Appellants issues are on specific issues, I shall adopt it in the resolution.
I must state here that the proceedings of the trial only began at page 94 with only evidence of DW case of the 2nd defendant and examination of the 3rd defendant witness. The record was compiled by Appellant?s counsel and entered in this Court on 18/2/15.
I shall resolve the issues in 2 big Issues made up of similar issues which flow into the other (issues A & D) Issue 2 made up of (B & C) while addressing the sole issue of the respondent.
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Issue 1
This issue complains that the loan was to the 2nd Respondent in person while the 1st Appellant guaranteed the loan to Elder P. O. Ajani personally and not the 2nd Respondent therefore the contract of guarantee is not enforceable against the Applicant and that the Appellant is not a proper party.
The relevant documents in this appeal is Exhibit C1 & C2 and testimonies of witnesses which shall be referred to in this judgment. BEULAH PRESS LTD applied for a loan signed by the Chairman Managing Director P. O Ajani on 29/01/2003, from the wordings therein it is not in the singular pronoun but plural which implies that it was not a personal loan, same is reproduced below;
BEULAH PRESS LIMITED
29th January, 2003
Mr Amos Amuabunosi
Coca-Cola Nigeria Limited
16 Gerald Road
Ikoyi
Dear Sir,
RE: N400, 000.00 CASH LOAN REQUEST
We hereby apply for a cash loan for the sum of N400, 000.00 (Four hundred Thousand Naira only) to execute an urgent business.
The loan is to be refunded with the interest within a period of 6 ? 8 weeks on interest rate of 12% per month. We hope that our request will be
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granted accordingly
Sincerely Yours
…….P. O. Ajani 9/01/2003
Chairman /Managing Director (Beulah Press limited)
? From the above it is clear that amount sought was N4000.000.
? The loan was a cash loan
? It was for a execution of an urgent business
? The application was from the BEULAH PRESS LTD and NOT the person capacity of the signatory. It was on the letter headed paper of the said BEULAH.
? The use of WE in the letter is in the first person plural pronoun subject which in this case is we which tells us who and what the subject is about. It leaves no doubt or confusion as to whom was applying and why.
A further look at the next Exhibit; C2 the guarantee is on the official headed paper I shall reproduce part;
?Re: N400,000 (Four Hundred Thousand Naira Only) request by Elder P O Ajani
We hereby request that the sum of N4000,000 be lent to our friend Elder P. O. Ajani. He is trust worthy and highly dependable personality.
He requires the money for an urgent business. Please be rest assured that both the principal and the
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interest will be paid as at when due.
We hereby provide the required guarantee for the said transaction. Our MD, further commits himself to personally ensure that the repayment of the loan and repayment agreement are fully complied with.
Thank you for your kind assistance as usual.
Yours Faithfully
For: The Market Research Consultancy
………………………..
Dupe Pinheiro (Mrs)
AGM ? Client Service
Again, this is an official recommendation letter by company (Appellant) through its MD recommending the 2nd Respondent who he holds in high esteem, for a loan also from the contents, it has a relationship with the MD of the 2nd Respondent and he as Managing director of the Market Research Consultancy as an individual and the Company he represents undertakes to guarantee the loan in paragraph 3 where the word ?we is used and personally commits himself to personally ensure that the loan and repayment agreement are fully complied with.
There is an acknowledgement of the agreement of the loan and repayment plan in Exhibit C1, the capacity here is dual, he represents the Alter
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ego and himself.
It is on the letter headed paper of the Appellant and is signed in the official capacity on behalf of the Appellant by a management staff A. G. M ? CLIENT SERVICES.
This in my view is clear and unambiguous and the literal interpretation should be applied to it.
In essence, the Appellant cannot claim ignorance of what he was guaranteeing, both documents are dated the same date. It was a usual business practice to do this for one of their clients this was confirmed by the evidence of the signatory to the letter DW3, see page 94 – 98 especially page 98, line13 – 14 thereof; cross examination of 1st Respondent. The letter speaks for its self, and no evidence can vary or add to it. See; MMA INC & ANOR v NMA (2012) LPELR – 20618; Where the Court held that the company is a juristic person, it can act through an alter ego, either its agents or servant. See also MARINE MANGEMENT ASSOCIATION INC & ANOR v NATIONAL MARITIME AUTHORITY (2012) LPELR -20618 (SC); KATE ENT. LTD v DAEWOO NIG LTD (1985) 2 NWLR (PT. 5) 116.
In the case of FAIRLINE PHARMACEUTICAL INDUSTRIES LTD & ANOR v TRUST ADJUSTERS NIG. LTD (2012) LPELR –
15
20860 (CA) this Court, per TSAMMANI, JCA, said:
“…it is the law that, a Company being an artificial person cannot act on its own person. It can only act through directors and therefore the acts of the director are merely that of ordinary case of principal and agent. In other words, where a director enters into a contract in the name of the incorporated body, it is the company, the Principal, which is liable not the director. The director is therefore not personally liable, unless it appears that he undertook personal liability such as, where he signs the contractual document without signifying that he was signing on behalf of the company. In other words, where a director signs a contract in his name without disclosing either the name or the existence of a Principal, would be held liable personally in the contract to the other party to the contract, even though he is in fact acting on the Principal’s behalf. See B. B. APUGO & SONS LTD. Vs. O. H. M. B. (2005) 17 NWLR (PT.954) 305 and ATAGUBA & CO. VS. GURA (NIG.) LTD., (2005) 8 NWLR (PT.927) 429.”
?
At this stage, I am satisfied that the 1st Respondent applied for the loan on behalf of the
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company (2nd Respondent herein), DW1 and the Appellant guaranteed the loan, the submission of the appellant amounts to technicality. The denial of the Appellant in paragraph 6, 7, 8 & 9 of its 2nd Amended Statement of Defence, flies in the face of the exhibits and evidence on record and in my view, would amount to injustice and allow the vehicle of fraud to be used. Upon the facts before the Court the issue of lifting the corporate veil has not arisen.
On the question whether the Appellant is a proper party, it goes without saying that he is, Exhibit C2 indicts him even though written by his secretary on behalf of his company. I agree with the lower Court that DW3?s evidence was tainted; it flies in the face of Exhibit C2 which shows the knowledge of her boss at whose instance the letter was written. See; OLUWANIYI v CHIEF OLUFEMI ADEWUMI (2007) LPELR ? 9034 (CA), the Court held;
“To determine whether the Appellant was a proper party or not, all that the lower Court was expected to do was to examine the claim of the Respondent before the Court, which gives him the right to initiate the action for the alleged wrongful act, and nothing
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more – see Dantata V. Mohammed (2000) 7 NWLR (pt. 664) 176, Adekoya V. FHA (2000) 4 NWLR (pt. 652) 215 & Ogbebo V. INEC (2005) 15 NWLR (pt. 948) 376. In other words, to go further, as it did, and use the fact that the Appellant had not filed a Statement of Defence to conclude there-from that she admitted the allegations against her was to stray into a premature appraisal of the case, which is wrong, as the Appellant rightly submitted.”
per AUGIE, J.S.C (P. 18, PARAS. B – F)
The Amended Statement of Claim at page 35 of the record paragraph 4, 5,6,7 & 8 thereof are copious pleading of facts and letters referred to above, I am satisfied that the Appellant cannot be excused from the proceedings as he is clearly the major backer of this loan and it is usual practice to do this. From the circumstances of the pleadings and evidence on the record what was supposed to be a usual friendly loan on this occasion turned sour and hence this appeal.
I am therefore of the view that the Appellant is a proper party to this proceedings without which it cannot be effectually decided.
On whether the demand of default of the loan was sent to him, there
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is proof that it was copied to him since he recommended him/company for the loan, it was a private loan not a bank loan. Furthermore, there was evidence at trial that there was acknowledgement of the notice by the Appellant for which more time was sought for to enable the 2nd Respondent pay back and was not controverted. It is trite that that which is admitted needs no proof.
I therefore refuse the notion that he had to be separately notified that a demand was being made it amount to half a dozen and 6. It is an afterthought, and has no standing. Paragraphs 9, 10, 11, 12 13 &14 of the 2nd further Amended statement of defence at page 38 of the records are clearly on the issue, the contention is that they guaranteed the personal loan and not company loan.
In ANEKWE & ANOR v NWEKE (2014) LPELR ? 22697 (SC); BASSIL v FAJEBE (2001) LPELR ? 757 (SC)
“The law is well settled to the effect that whenever there is a complaint that the trial Court did not properly evaluate the pieces of evidence proffered by witnesses before him and make findings based on such evidence, the appellate Court is in as good a position as the trial Court to
19
examine and evaluate the evidence placed before the trial Court. If the appellate Court finds that there are inadequacies on the part of the trial judge in reaching its decision premised on perverse findings, the former has a duty to examine the inferences and conclusion reached by the trial Court and then re-evaluate the evidence in order to come to its judgment, to see that justice is dispensed to the parties evenly. Mkpinang v. Ndem (2013) 4 NWLR (Pt.1344) 302 at 321 (SC) 1; Adedayo v. People’s Democratic Party & Ors (2013) All FWLR (Pt.695) 203 at 234, 265-266 (SC); David Akpan & Ors V. Udo Utih & Ors (1996) 6 SCNJ 244 at 265; Jason Umesie & Ors V. Prof Hyde Onuaguluchi & Ors (1995) 12 SCNJ 120 at 134-135; Lion Building Ltd v. Shadipe (1976) 12 SC.35. …..This principle of the law was more recently re-echoed by the apex Court in NACENN (Nig) Ltd v. Bewac Automotive Producers Ltd (2011) LPELR 8125 (SC), thus: “The law is very well crystallized that it is the primary duty of the trial judge to receive all relevant evidence. That is perception. The next task for the judge is to weigh the evidence. That is evaluation. A finding of fact
20
involve both perception and evaluation.” Per Bode Rhodes-Vivour, JSC.”
per YAKUBU, J.C.A (PP. 7-8, PARAS. B-D)
This Court held per GARBA, JCA inMR ZANG & ANOR v EMMANUEL I & ORS (2014) LPELR – 23521 (CA) that; it must be stated that it is not sufficient for learned counsel to merely make an allegation of an error of law, which the evaluation of evidence by a trial Court is, without clear demonstration of the error in evaluation of evidence. The lower Court to my mind clearly analysed the evidence and documentary exhibits, put them together and arrived at a stage where she believed that of the Respondent before coming to a conclusion. The reasoning of the Court is unimpeachable.
There is no dispute that the debt has not been paid, it was shown at trial that there was no proof that it was paid and there was no appeal against this fact, therefore, the only outstanding issue is whether the interest awarded was proper, this is ground 4 of the Amended Notice of Appeal.
The contract agreement (Exhibit C1) terms were;
1. Sum of N400, 000
2. Refunded within 6-8 weeeks of payment
3. Interest of 12% per month.
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It is trite that parties and the Court are bound by terms of agreement, see BABA v NIGERIAN CIVIL AVIATION & ANOR (1991) LPELR – 692 (SC), Where NNAEMEKA ?AGU, JSC held that;
?Parties enjoy their freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms are invariably ,the guide to its interpretataion.”
See also BFI GROUP CORPORATION v BPE (2012) LPELR – 9339 (SC); AFROTEC TECHNICAL SERVICES NIG LTD v M.I.A. & SONS LTD (2000) 15 NWLR (PT 692) 730 at 788.
The interest was outstanding from February 2003 ? till judgment 20th June, 2014, see MINAJ HOLDINGS LTD v AMCON (2015) LPELR ? 24650 (CA),Where this Court held thus;
?The law is that interest can only be paid if it forms part of the contract, it must also be expressly pleaded and proved
per NDUKWE ? ANYANWU, JCA.
The lower Court awarded interest of 12% till judgment date, the appellant contend that it ought to be till the 6 weeks agreed in the contract in A.G FERRERO & COMPANY LTD v HENKEL CHEMICAL NIGERIA LTD
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(2011) LPELR – 12(SC), FABIYI, JSC held that
?Generally interest is not payable on ordinary debt the absence of a contract express or implied or mercantile usage or customs of the parties or as may be contained in statue. It may be in place through fiduciary relationship between parties see EKWUNIFE V WAYNE (WEST AFRICA) LTD (1989) 5 NWLR (PT 122) 422,455.?
I have examined Exhibit C1 it was agreed that repayment would be between a period of 6- 8 weeks from receipt, its past 7 years now having held over, it goes without saying that having not paid within the time frame as agreed, the period extends till the date of payment.
Therefore, I am satisfied that there was a firm agreement in place known to all parties to the agreement on interest chargeable, it?s not in dispute from the evidence on record that the 2nd Respondent has utilized the loan to its benefits even after being paid the business sum for which he utilized the loan and still holds on. It would be the height of business suicide, equity and the justice of the case to hold otherwise, after all, both parties were into a business relationship, I am in total
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agreement that the lower Court properly considered all ramifications of the agreement and awarded same.
I resolve this against the Appellant
The appeal fails and is dismissed, the judgment of the Lagos State High Court per PEDRO, J is upheld.
Cost of N250, 000 is awarded against the Appellant.
TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the judgment, rendered by my Lord, ABIMBOLA OSARUGUE OBASEKI ?ADEJUMO, JCA., with whom I am in agreement that the appeal is lacking in merits. The Appellant, cannot in good conscience, wish away its commitment and indebtedness to the Respondent, as clearly represented in Exhibits Cl and C2. It cannot be allowed to resile from the contents of the said Exhibits C1 and C2, through which it enjoyed the loan facility, hence it cannot eat its cake and still have it.
The Appellant, behaving in the mould and character of a smart Alec, ought to have been grateful to the Respondent for granting a loan facility which it had obtained to enable it finance and ?execute an urgent business?, which it enjoyed, instead of turning round to erect stonewalls, against
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the repayment of the said loan, as duly agreed upon by the parties in Exhibits C1 and C2. Philip Adda v. Aihaji A. A Liman (2012) 4 NWLR (Pt 1290) 243; Okoro Nwachukwu v. Boji-Boji Microfinance Bank Nigeria Ltd(2013) LPELR 20309 (CA) at PP. 30-31, paras C-F.
I, therefore join my learned brother, in the lead judgment and dismiss the appeal too. The judgment delivered by Pedro, J., of the Lagos State High Court, on 30th June, 2014 is hereby affirmed.
I adopt the award of the costs of the appeal, as contained in the lead judgment, against the Appellant and in favour of the Respondents, as mine.
TOBI EBIOWEI, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother. ABIMBOLA OSARUGUE OBASEKI.ADEJLJMO, JCA My lord has adequately covered the issues involved in this appeal. I agree with the judgment and I have nothing to add as my learned brother has exhaustively handled the issues therein.
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Appearances:
G.O. Nona with him, Lateef SanusiFor Appellant(s)
E. A. Okowe for 1st Respondent.
Micheal Akinbowale for 2nd Respondent
For Respondent(s)
Appearances
G.O. Nona with him, Lateef SanusiFor Appellant
AND
E. A. Okowe for 1st Respondent.
Micheal Akinbowale for 2nd Respondent For Respondent
