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TOWER SECURITIES & INVESTMENT CO. LTD. v. CORONATION MERCHANT BANK LTD (2020)

                   TOWER SECURITIES & INVESTMENT CO. LTD. v. CORONATION MERCHANT BANK LTD

(2020)LCN/15646(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, November 13, 2020

CA/L/25/2018

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

TOWER SECURITIES AND INVESTMENT COMPANY LIMITED APPELANT(S)

And

CORONATION MERCHANT BANK LIMITED RESPONDENT(S)

 

RATIO:

THE PARTIES AND THE COURT ARE BOUND BY THE TERMS OF AN AGREEMENT

 It is elementary law that parties and indeed the Courts are bound by terms of agreement that the parties themselves willingly entered. The intent of the parties must be read from the words they used in the agreement in issue. See Star Finance & Property Ltd & Anor. Vs. NDIC (2012) LPELR-8394 (CA) and Baba Vs. Civil Aviation & Anor. (1991) 5 NWLR (pt. 192) 388BALKISU BELLO ALIYU, J.C.A.

THE EVALUATION OF EVIDENCE IS THE PRIMARY DUTY OF THE COURT

The settled fundamental principle of law is that evaluation of evidence and ascribing probative value thereto is the primary duty of the trial Court. This is so because the trial Court has the singular advantage to observe witnesses as they testify, especially under cross-examination, since evidence in chief is now by way of written statements on oath. However where all or a substantial part of the evidence led before the trial Court is documentary, and there is a complaint that the trial Court failed to properly evaluate such evidence or that it drew wrong inference or conclusion there from as the Appellant herein did under his issues 1 and 2, the law allows this Court to examine and evaluate the documents in order to determine whether correct inferences and findings were drawn there from by the trial Court. BALKISU BELLO ALIYU,J.C.A.

 

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State (trial Court), delivered on 18th October, 2017 by Hon. Justice F. Bankole-Oki, in respect of suit LD/918/2013. The suit was commenced by the Respondent as the Claimant against the Appellant/defendant via a writ of summons filed on the 17th October, 2013 by which the Respondent prayed for the following orders against the Appellant:
1. AN ORDER of the Honourable Court compelling the Defendant to pay the Claimant the sum of N218, 033, 479. 26 (Two Hundred and Eighteen Million, Thirty-three Thousand Four Hundred and Seventy-nine Naira, Twenty-six Kobo) being the outstanding balance on the debt owed the Claimant by the Defendant as at 1st October, 2013.
2. Payment of interest at the agreed rate of 16% on the above mentioned sum from 1st October, 2008 till judgment, and thereafter at the rate of 10% till final liquidation of the judgment sum.
3. AN ORDER of the Honorable Court compelling the Defendant to pay the Claimant the sum of N10, 500,000. 00 (Ten Million, Five Hundred Thousand Naira) being the cost of this action.
4. General damages for breach of contract. The case of the Respondent/Claimant before the trial Court as disclosed in its statement of claim (pages 3 to 8 of the record of appeal), was that the Respondent’s predecessor in interest – Associated Discount House Limited, a limited liability company was the majority shareholder in Legacy Trust and Investment Limited (Liquidated) (“Legacy Trust”), in which it held 85% equity. Sometimes in 2008, the Board of Directors of Legacy Trust in the course of the review of the company’s financial statement noticed huge sums of unexplained interest expenses and receivables that were extra-ordinary for a company with a balance sheet size of about N150Million. The Board then ordered for the audit of company from 2005 to 2008, and the report of the audit revealed a total liability of about N1.2billion mobilized by the then management of the company with corresponding asset creation of about N1.2Billion that was all treated as off-balance sheet items without approval of the Company’s Board. Upon maturity of the several deposits from customers of the company, the management of the company headed by Mr. Abimbola Olarenwaju (the pioneer Managing Director (MD) and the Chief Executive Officer (CEO) was unable to repay depositors their invested funds because the beneficiaries of the credits were unable to pay their debts.

The Respondent claimed that the Mr. Olarenwaju used his privileged information on the company and connived with the incumbent Managing Director and CEO of the Company (Legacy Trust) to access several unsecured credits from the company, which transactions were neither known, disclosed to nor approved by the Board of the company.

The Board issued a query to Mr. Kayode Afolabi, the incumbent managing director of the company to explain the circumstances that led to the mobilization of the sum of N1.2Billion from customers without the Board’s approval. Through the response of Mr. Afolabi, the Board discovered that the customers’ deposits were advanced as credits to prominent companies including the Defendant, which outstanding indebtedness to the Legacy Trust was N522,947,243. 46 comprising of N463Million principal amount and N59,947,243. 46 interest. Upon this revelation, the Board of Legacy trust invited Mr. Abimbola Olarenwaju, the Defendant’s Managing Director and chief executive officer (also pioneer M/D and CEO of Legacy Trust) to explain what had transpired between his company and Legacy trust. Mr. Olarenwaju wrote a letter dated 30th December, 2008 in which he voluntarily provided information to the board regarding the Defendant’s outstanding indebtedness to the Legacy Trust. The said company was voluntarily wound up on 7th June, 2010 and its assets and liability transferred to the Respondent.

After several months of discussions and negotiations between the Respondent and the Appellant, and the agreed outstanding indebtedness of the Appellant to the Respondent, they executed a Memorandum of Understanding (MOU) on the modes of the repayment of the sum of N522,947,243.46 that the Appellant owed Respondent. Pursuant to this understanding, the Appellant transferred its properties to the Respondent, but it failed to pay the now outstanding balance of N115,200,000.00 to the Respondent after several demands, the Respondent instituted the suit claiming this sums.

The Appellant, as the defendant denied the claims of the Respondent in terms of its amended statement of defence and counter claim filed on the 20th March, 2014 located in pages 168 to 176 of the record of appeal. It averred therein that its Managing Director Mr. Olarenwaju was threatened, harassed, intimidated and unduly influenced by the Police, at the instigation of the Respondent to admit his company’s indebtedness to the Respondent. However, that after a comprehensive review of its record, it discovered some discrepancies in the loan transaction between the parties and made effort to communicate this to the Respondent by a letter dated 7th March, 2013 wherein its Solicitor informed the Respondent that the Appellant had paid it the sum of N314,502,494.00, in excess of its indebtedness, and requested for a refund of the said sum. It was on this basis that the Appellant/defendant counter-claimed the sum of N333,787,494.21 (Three Hundred and Thirty-Three Million, Seven Hundred and Eighty-Seven Thousand, Four Hundred and Ninety-Four Naira, Twenty-One Kobo) against the Respondent as overpayment it made to the Respondent, 21% interest on the said sum, N5million general damages and N5million cost of the action.

The Appellant’s reply (dated 31st March, 2014) to the amended statement of defence and its defence to the counter-claim is copied in pages 194 to 200 of the record of appeal. It denied the counter-claim of the Respondent, and insisted that the Appellant owed it an outstanding sum of N132, 947, 243. 46 but it owed the Appellant no money for overpayment. That the Appellant did not take into account the accumulated interest agreed upon by the parties at the rate of 28% per annum, hence its misguided counter claim.

In its reply to the Respondent Defence to its counter claim, the Appellant denied entering into the agreement with the Respondent to pay interest on the principal sum of N704, 500, 000 that it borrowed from the Respondent. That it re-paid the Respondent a total sum of N1, 038, 287, 494. 21, which means that it overpaid the Respondent in the sum it counter-claimed. See pages 208-211 of the record of appeal.

During the trial, the Respondent called one witness and tendered twenty documents in proof of its claims. The Appellant called two witnesses and tendered 10 documents in defence and in support of its counter claim. Counsel on both sides filed, exchanged and adopted their respective written addresses and the matter was adjourned for judgment. After considering the totality of the case put up by each party, the learned trial Judge entered judgment in favour of the Respondent/Claimant thus:
1. The sum of N115, 200, 000. 00 (One Hundred and Fifteen Million, Two Hundred Thousand Naira) in favour of the Claimant, being the amount owed by the Defendant/Counter Claimant as at 11th February, 2013.
2. Interest on the amount in 1 above at the rate of 16% per annum from 11th February, 2013 till the 17th October, 2013, and thereafter, at the rate of 10% per annum until full payment of judgment sum.
3. The claim of General Damages fails.
4. Costs of this action assessed at N250, 000. 00 (Two Hundred and Fifty Thousand Naira) only.
5. Counter claim of the Defendant Counter claimant fails in its entirety and is dismissed accordingly.

Aggrieved by the judgment of the lower Court, the Appellant filed its notice of appeal on the 23rd November, 2017 relying on six (6) grounds of appeal to urge the Court to allow the appeal and set aside the Judgment of the trial Court. The Appellant’s brief of argument was settled by Oludare Falana Esq., and filed on 23rd February, 2018, wherein he identified and submitted three issues for the determination of this appeal as follows:
1. Having regard to the finding of the Court below that the Respondent had failed to show how the figure N218,033,479.26 (Two Hundred and Eighteen Million, Thirty-Three Thousand Four Hundred and Seventy-Nine Naira and Twenty-Six Kobo) was arrived at, whether the Court was right to have awarded the sum of N115, 200,000.00 (One Hundred and Fifteen Million, Two Hundred Thousand Naira Only) in favour of the Respondent. (Grounds 1 and 2)
2. Given the facts of this case and the evidence placed before the Court, whether the trial Court was right in coming to the conclusion that the Appellant admitted her indebtedness to the Respondent, and therefore estopped from changing her position. (Grounds 3 and 4)
3. Considering the totality of evidence led, both oral and documentary, whether the lower Court was right in holding that the Appellant who was the counter claimant at the lower Court failed to prove on the balance of probability that the Respondent owes the amount claimed. (Grounds 5 and 6)

The Respondent’s brief of argument in opposing the appeal was settled by Ikechukwu Onodi, Esq., and filed on 18th May, 2018, deemed properly filed and served on 6th March, 2019. The Respondent adopted the three issues formulated by the Appellant for the determination of this appeal. There is Appellant’s reply brief filed on the 15th September, 2020 deemed property filed on the 21st September, 2020 being its reply on points of law to the Respondent’s brief of argument. The submissions of the parties in their respective briefs are considered below.

APPELLANT’S SUBMISSIONS
In arguing issue one, learned Counsel relied on Sections 131(1) & (2) and 133(1) of the Evidence Act, 2011, to submit that it is the Respondent’s duty to prove that the Appellant was indebted to it. He pointed out that the main relief sought by the Respondent was for the trial Court to compel the Appellant to pay the sum of N218,033,479.26 (Two Hundred and Eighteen Million, Thirty-Three Thousand, Four Hundred and Seventy-Nine Naira and Twenty-Six Kobo), and since the trial Court found that the Respondent was unable to show the Court how it arrived at that figure, the award of the sum of N115, 200,000.00 to the Respondent was not justified. He argued that the reliance of the trial Court on Exhibit C, a mere final demand letter from the Respondent’s Solicitor to the Appellant in reaching the conclusion that the Appellant admitted its indebtedness to the Respondent was wrong, especially as the Respondent did not tender a statement of account, audit report or any document from which the trial Court could have inferred the nature of the transaction and the total amount of money due to the Respondent, if any. That, it is the duty of a bank to adduce both documentary and oral evidence to show how the overall debit balance was arrived at and not for the learned trial judge to embark on a voyage of discovery of facts which are not placed before him. Learned Counsel relied for support on the cases of Wema Bank Plc Vs. Osilaru(2008) 4 WRN 160 at 187, Line 45, Ajikawo Vs. Ansaldo (Nig) Limited (1991) 2 NWLR (Pt. 173) 359 at 372, para E; Akanmu Vs. Co-operative Bank Plc (2005) 2 NWLR (Pt. 963) 82 at 100 and Obijiaku Limited Vs. N.D.I.C. (2002) 10 NWLR (Pt. 774) 201 at 215.
He further referred us to the evidence of CW1 under cross-examination (page 214 to 216 of the record) wherein the witness stated that he did not know when the loan was granted to the Appellant or when the transaction that gave rise to the suit was done. Though the learned Counsel conceded that a Court has the power to award a lesser amount than the amount claimed in a suit, but that power can only be exercised if the Claimant proved the lesser amount by placing before the Court a statement of account or secondary evidence in support. He submitted that in this case, there was no scintilla of evidence on the face of all the exhibits relied upon by the Respondent before the trial Court to support the award of the sum of N115.2Million that the trial Court made in its favour. He referred us to the cases of Ozde Distilleries Limited Vs. Diamond Bank (2013) LPELR – CA and Oguntimehin Vs. Unity Bank Plc (2017) LPELR – 43244 to support his submissions and also to contend that the learned trial Judge misapplied the decision in Ozde Distilleries Ltd Vs. Diamond Bank (supra) in arriving at its decision. He urged the Court to, upon his argument, resolve issue one in favour of the Appellant.

On issue two, learned counsel referred us to the definition of “admission” in the Black’s Law Dictionary, 9th Edition, page 53, and the decision in the case of UBA & Anor. Vs. Jargaba (2007) LPELR – 3399 (SC) on what constitutes ‘admission’ in law, and submitted that in law an admission may be ‘formal’ or ‘informal’. He contended that that a ‘formal’ admission is made by a party to a civil proceedings so as to relieve the other party of the necessity of proving the matters admitted and is taken as established, whereas an ‘informal’ admission does not necessarily or strictly speaking binds the maker, (unless it amounts to an estoppel); and may therefore be explained or contradicted. He argued that all the documents that the Respondent relied upon before the trial Court, that is, Exhibits E & E2, F, H2, H5, are mere correspondences between the parties and as such they are “informal” admissions because they were not made in pleadings or confined in operations to any particular litigation. He relied for support on the decisions in the cases of Nwankwo Vs. Nwankwo (1995) 5 NWLR (Pt. 394) 153 and Yabola Vs. Trade Bank Plc (1998) 6 NWLR (Pt. 555) 670 at 681, which learned counsel said are to the effect that an informal admission does not operate as an estoppel so as to preclude the party admitting from afterwards resiling from his admission. That it is open to that party to assert that he made the admission due to an erroneous conception of law or ignorance of the real facts or other circumstances that sufficiently explain them; and that the Appellant has done that in this case through its Exhibit L5 and L7. He contended that the trial Court failed to give effect to the said Appellant’s Exhibits L5 and L7 which were the answers to the Respondent’s Exhibits E, I2, F, H2, H5 and J by which it denied its indebtedness to the Respondent prior to the filing of the suit. He relied for support on the cases of C.A.P. Plc Vs. Vital Inv. Ltd (2006) 6 NWLR (Pt. 976) 220 at 267 (CA), Narindex Trust Ltd Vs. Nigerian Intercontinental Merchant Bank Ltd (2001) 26 WRN 83 at 94, page 10, paras E – F and Okoli II Vs. Ayikasi II (1946) 12 WACA 21.

With regards to the MOU executed by the parties, learned counsel submitted that it does not have a committal effect because it is a document containing the preliminary understanding of the parties, but not a formal contract, and therefore not binding on the parties. He relied for support of this contention on the cases of Star Finance & Property Vs. NDIC (2012) 10 NWLR (Pt. 139) 52 at 537, paras H – E and Safetrust Saving & Loan Ltd Vs. Governor of Ekiti & Ors. (2014) LPELR – 22778 (CA), to urge this Court to resolve issue two (2) in favour of the Appellant.

On issue three (3), distilled from the Appellant’s grounds 5 and 6 of appeal, it was submitted that the Respondent failed to specifically deny paragraphs 17, 20 and 22 of the Appellant’s amended statement of defence and counter claim; where in it averred that it erroneously promised to re-pay the Respondent the sum of N132, 947, 243 .46 when it does not owe any money to the Respondent. Rather, it was the Respondent, which owed it money the sum of N333, 787, 494. 21, being the amount it paid in excess of its indebtedness. That the effect of not specifically denying these paragraphs is that the Respondent is deemed to have admitted the facts therein with regards to the counter claim of the Appellant.

He further argued that the Appellant’s counter claim was supported by Exhibits J and K, the forensic expert report, which was not challenged before the trial Court, and the trial Court was therefore bound to accept the expert evidence as proof of the counter claim. He placed reliance on the case of Oyebadejo Vs. Olaniyi (2000) 5 NWLR (pt. 657) 501 and Otti Vs. Otti (1992) 7 NWLR (pt. 252) 187to support this argument. He concluded by urging the Court to allow the appeal and set aside the judgment of the trial Court.

RESPONDENT’S SUBMISSIONS
On issue one, the learned Respondent’s counsel referred the Court to the finding of the learned trial judge in pages 328 – 329 of the record of appeal and submitted that there were compelling facts and evidence led before the trial Court that the Appellant was indebted to the Respondent, and the Appellant did not appeal against the said findings. That on the authority of the case of Chukwuemeka Vs. FRN (2016) 2 NWLR (Pt. 1495) 120 at 148, para D, the Appellant has accepted the findings as binding. It was also the submission of learned counsel that by a letter dated 30th December, 2008 – Exhibit E, the Appellant stated that the outstanding balance it owed the Respondent was N522,947,254.46. Thereafter, both parties executed an MOU – Exhibit I2, wherein the Appellant assigned some grossly over-valued properties valued at N390,000,000.00, to the Respondent as repayment, but since then, the Appellant had only paid N500,000.0 out of his admitted indebtedness to the Respondent.

He also submitted that the trial Court found corroborating evidence in support of the MOU that established the admitted indebtedness of the Appellant to the Respondent in the sum of N115.2Million from the sum of N132, 947, 243. 46 it owed. That since the Appellant has not appealed against this finding of the trial Court to the effect that the MOU was properly corroborated, it is binding on it. He posited that in fact, had the trial Court taken into consideration the fact that the 30 plots of land valued at N21Million that the Appellant initially offered to the Respondent but subsequently reneged by refusing to sign relevant documents of assignment, the trial Court would have come to the conclusion that indeed the Appellant owed the Respondent N132, 947, 243. 46, as at the time the Respondent filed this suit.

The Learned counsel also referred us to the evidence of DW2, (Appellant’s managing director) under cross-examination (page 225 of the record), in which he admitted the Appellant’s indebtedness to the Respondent, and stated that he did not mention police interference or that he wrote Exhibits E and L2 under duress.

He further submitted that contrary to the argument of the Appellant, the trial Court did not find or hold that the Respondent failed to prove its case, rather the trial Court found and held that the Respondent did not show how the amount of N115.2 Million suddenly jumped to N218,033,479. 26, over a few months before the suit was filed. That it was for this reason that the trial Court held (in pages 327 to 329 of the record of appeal), that the Respondent proved the Appellant’s outstanding indebtedness to it as at February 2013 was only N115.2Millioin; and since the Appellant admitted its indebtedness, it is estopped from changing that position.
In response to the Appellant’s argument that the Respondent failed to tender statement of account to show the transaction, learned counsel submitted that it was the Appellant which in fact prepared and forwarded to the Respondent the statement of account of the transaction in Exhibit ‘E’, which DW1 also admitted was the same with the Appellant’s Exhibit L2 regarding the outstanding amount it owed to the Respondent. He relied on the case of IFEANYI CHUKWU T. I. V. LTD VS. O.C.B. LTD (2015) 17 NWLR (PT. 1487) 1 at 37-38, to the effect that once a debtor acknowledged his indebtedness in writing, he would not be allowed to dribble the plaintiff out of the judgment the plaintiff is lawfully entitled to, and the defendant would be bound by the letter of acknowledgement of its indebtedness to the plaintiff.

With regards to issue two (2), the Respondent submitted that an admission whether formal or informal is against interest and has been held to be the best evidence against an adversary, on the authority of the case of Ebla Construction Vs. Constain West Africa Plc(2011) 6 NWLR (pt. 1242) 110 at 134. That since the facts of the case showed that the Appellant admitted its indebtedness to the Respondent through Exhibit E, which the Respondent believed, coupled with the subsequent deliberations and negotiations, including the execution of MOU (Exhibit I2) all premised on the Appellant’s admission in Exhibit E, it will amount to gross miscarriage of justice to allow the Appellant resile from the contents of Exhibit E or the MOU executed by the parties. It was based on these documents that the Respondent forgo its right for an independent enquiry/audit into the loan account. He relied on the provisions of Sections 21(1), 22 and 169 of the Evidence Act 2011, which he argued are applicable to the facts of this case, and that the trial Court was bound to give effect to the Appellant’s admission of indebtedness as shown in the documentary exhibits placed before it and it rightly did so. He further submitted that the Appellant quoted the case of STAR FINANCE & PROPERTY VS. NDIC (supra) out of context regarding MOU executed by the parties, because that case was in respect of a lease agreement and the parties entered into an MOU, but failed to state the rent payable. The Court held that there was no compliance with a vital ingredient for a valid lease agreement and on that ground faulted the MOU. Those facts are different from the situation in this case, and the learned trial Judge rightly found (in page 328 of the record) that the Respondent produced corroborating evidence that supported the content of the MOU, which the Appellant failed to rebut. We were therefore urged to disregard the argument of the Appellant and resolve issue two against it.

On issue three (3), the learned Respondent’s counsel submitted that the Appellant’s counter claim was an afterthought in view of the contents of the documents admitted during the trial as Exhibits E, I2, F, H2, H5 and H6. That the implication of the contents of these documents is that the Appellant failed to prove its counter claim as required by law.

With regards to the expert evidence on the forensic expert report admitted as Exhibit ‘K’ in support of the counter claim, he submitted that the expert witness (DW2) who prepared the audit report admitted that he did not calculate the agreed 16% interest in the transaction in his forensic report. This means that the audit report did not represent the full agreement of the parties as such the trial Court was right not to rely on it. He also submitted that the case of Otti Vs. Otti (supra) relied upon by the Appellant does not support its case because in that case, the expert witness was not cross-examined on his evidence and therefore his evidence was unchallenged, which is not the same situation in this case.

On the argument of the Appellant that the Respondent did not specifically deny Appellant’s paragraphs 17, 20 and 22 of its statement of defence and counter claim, leaned Respondent’s counsel referred us to the finding of the trial Court in page 330 of the record where the trial Court found and held that the Respondent sufficiently denied all the averments in respect of the Appellant’s counter claim. He therefore urged the Court to discountenance the argument of the Appellant, and resolve issue three against it.

RESOLUTION
The parties are in agreement on the issues that arise from the six grounds of appeal for the determination of this appeal, and I have seen no reason to disagree with them, especially as the issues were formulated by the Appellant, the owner of the appeal. I therefore adopt the three issues as my guide to determine this appeal. Issues 1 and 2 will be resolved together being complaints against evaluation of evidence.

ISSUES ONE AND TWO
The Appellant’s grouse, under issue one is that since the learned trial Judge found and held that the Respondent failed to establish how its claim of the sum of N218, 033, 479. 26 was arrived at, he was wrong to award the sum N115.2Million in favour of the Respondent. In other words, that the Respondent did not prove that the Appellant owed it this sum of money and therefore not entitled to it. In issue two, the Appellant questioned the correctness of the conclusion reached by the learned trial Judge to the effect that the Appellant admitted its indebtedness to the Respondent, having regards to the facts and evidence placed before him.

These Appellant’s complaints stem from the trial Court’s finding in page 329 of the record of appeal where the learned trial Judge relied on the Respondent’s solicitors’ demand letter dated 11th February, 2013 (Exhibit ‘C’) sent to the Appellant in which they demanded the repayment of the debt in the sum of N115.2Million. The learned trial Judge found no evidence of a computation before it that showed how the sum of N115.2Million that the Respondent demanded as final payment from the Appellant in Exhibit ‘C’ changed to N218.033Million claimed by its writ of summons. As such, he found and held that as at February 2013 only the sum of N115.2 was proved to be the outstanding indebtedness of the Appellant to the Respondent, which was what he awarded.

The settled fundamental principle of law is that evaluation of evidence and ascribing probative value thereto is the primary duty of the trial Court. This is so because the trial Court has the singular advantage to observe witnesses as they testify, especially under cross-examination, since evidence in chief is now by way of written statements on oath. However where all or a substantial part of the evidence led before the trial Court is documentary, and there is a complaint that the trial Court failed to properly evaluate such evidence or that it drew wrong inference or conclusion there from as the Appellant herein did under his issues 1 and 2, the law allows this Court to examine and evaluate the documents in order to determine whether correct inferences and findings were drawn there from by the trial Court. In the case of Ozde Distilleries Ltd Vs. Diamond Bank Plc (supra), referred to by the Appellant, Nweze, J.C.A. (as he then was) speaking for this Court held that:
There are certain advantages which the lower Court enjoys which are not available to this Court. It saw the witnesses. It heard them. It watched their demeanour. It evaluated their viva voce testimonies, believing some and disbelieving others,…. In Nnorodim v. Ezeani (2001) 2 SC 143, 147 – 148, Iguh J.S.C. opined that: It is beyond dispute that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a Court of trial which saw, heard and assessed the witness, citing Akinloye v. Eyiyola (1968) NMLR 92, 95. The only exceptions are where the issue in controversy between the parties is simply a matter of inference that could be drawn from established facts on records, not resting on the credibility of witnesses as a result of their demeanour in Court or of the impression of them by the trial Court. Clearly where such exceptions exist, an appellate Court is in as good a position as the trial Court to evaluate the evidence which has been given in a case, the appellate Court must not hesitate to evaluate such evidence and make the necessary irresistible inference that can be drawn from proved facts.
See also Emeka Vs. Okoroafor & Ors. (2017) LPELR-41738 (SC), Haske Vs. Magaji & Ors. (2008) LPELR-8330 (CA), Lafia L. G. Vs. Exec. Governor of Nasarawa State (2012) LPELR-20602 (SC) and Fam-Lab Nig. Ltd & Anor.Vs. Jahmarco Nig. Ltd & Anor. (2018) LPELR-44730 (CA).

The record of the lower Court’s proceedings in this appeal shows that the evidence led before it, relating to the claim of indebtedness of the Appellant to the Respondent, was mainly documentary. Indeed, as I observed supra, the finding of the trial Court that the Appellant complained of under it’s issue one was inferred from the Respondent’s letter of demand dated 11th February, 2013, vis-à-vis its claim of N218,033,479.26 in the writ of summons. Therefore the circumstances of this appeal amount to such exceptions where we can re-examine the documents relied upon by the parties in order to determine whether the trial Court made correct inference to reach the decision complained of.

My starting point is the pleading of the Respondent, wherein it specifically pleaded and relied on several documents including the final letter of demand, which was pleaded in paragraph 28 of its statement of claim (page 1 to 8 of the record) thus:
Despite the undertaking contained in paragraph 25 above, the balance sum of N115.2Million has remained unpaid till today. On the 11th day of February 2013, the Claimant through her counsel, Messrs. Ikechukwu Onodi & Co., wrote a final letter of demand of the N115, 200, 000. 00 (One Hundred and Fifteen Million, two Hundred Thousand Naira), enclosing the Claimant’s statutory demand letter duly signed by two directors of the Claimant. The Claimant pleads the said letters and notice is hereby given to the Defendant to produce the originals at the trial of this suit. (Underlining supplied).

The evidence in chief in support of the above pleadings is contained in the statement on oath of the Respondent’s only witness (CW1) copied in pages 10 to 16 of the record, and this statement on oath is a replica of the statement of claim. Also the final letter of demand dated 11th February 2013 along with other documents relied by the Respondent were tendered and admitted through CW1 as Exhibit ‘C’ and is copied in page 67 to 68 of the record of appeal with the heading “YOUR DEBT OF N115, 200, 000- A FINAL DEMAND FOR PAYMENT”, and the Respondent informed the Appellant therein that:
The unpaid balance on your account as at today is N115, 200, 000. 00 (One Hundred and Fifteen Million and Two Hundred Thousand Naira Only). This is therefore, to finally demand for the payment of the sum of N115,200,000.00 (One Hundred and Fifteen Million and Two Hundred Thousand Naira Only) being the outstanding indebtedness of your Company to ADH within twenty-one (21) days of your receipt of this letter.

The Appellant denied owing the sum of N115.2Million to the Respondent by paragraph 20 of its amended statement of claim and counter claim (page 168 of the record), wherein it stated that it is the Respondent that was indebted to it in the sum of N333,787,494.21 being money it erroneously overpaid to the Respondent as repayment for its indebtedness.

By the pleadings and the written evidence of the parties, the fact that the Appellant was indebted to the Respondent was not in contention before the trial Court. It was also not in contention that the Appellant made repayments of its indebtedness to the Respondent in cash and in properties. The bone of contention on which parties joined issues was the amount of money outstanding unpaid to the Respondent by the Appellant if any. While the Respondent claimed that out of the total sums of its indebtedness of over N522million, the Appellant repaid about 75% in cash and properties but still left the sum of N115.2Million outstanding as per Exhibit ‘C’, the Appellant on the other hand denied this and counter claimed that it is the Respondent that owed it because it had actually repaid more than it owed.

Let me pause here to point out that the amount of money the Respondent claimed against the Appellant as the balance outstanding unpaid via its originating summons is N218,033,479. 26 is clearly above the sum of N115.Million demanded by the Respondent in Exhibit C. This was the basis of the learned trial Judge’s finding that the Respondent did not present any evidence of calculation to explain this discrepancies, based on which it awarded only N115.2Million that the Respondent demanded from the Appellant as evidenced by Exhibit ‘C’.

The argument of the Appellant is that since the trial Court found that the Respondent was not able to establish how the sum it earlier demanded from the Appellant in Exhibit ‘C’ metamorphosed to the sum of N218, 033, 479. 26 that it claimed by its originating processes, then the trial Court was wrong to award the said sum in favour of the Respondent, on the basis of Exhibit ‘C’.

The argument of the Appellant is untenable because it is not the law that where a party claims a sum of money but was only able to prove a lesser amount, his claim should totally fail. What is the trite position of the law is that where a claimant claimed more than he can prove, the trial Court can award him the lesser amount, but never more than what the party claims. See Haston Nig. Ltd Vs. A. C. B. (2002) 12 NWLR (pt. 782) 623 or (2002) LPELR- 1359 (SC), A. E. Bright Futures Motors Nig. Ltd & Anor. Vs. Chizoba (2017) LPELR-42828 (CA)
However the learned Appellant’s counsel was right in part of his submission that in order for a party to be awarded less than he claims, he has to prove his entitlement thereto. His contention is that the Respondent did not prove its entitlement to the lesser amount of N115.2Million that was granted to it. Again, I return to the record of appeal to examine other documents relied upon by the learned trial Judge to reach his decision.

Such documents the learned trial Judge relied on included a letter dated 30th December, 2008 marked as Exhibit ‘E’, admitted through the Respondent’s CW1 and the same letter was also tendered by the Appellant and admitted as Exhibit L2. The Appellant DW2 admitted under cross-examination that the contents of these two documents are the same. Exhibit ‘E’ located in pages 19 to 20 of the record of appeal. The Appellant wrote in that letter inter alia that:
“We refer to the above subject matter of our meeting with your good selves under the able leadership of your Chairman Mrs. Y. O. A. Ogunseye. During the meeting, the following issues were put across to us to address:
a. The balance of the credit advanced to us
b. Securing the facility
c. Repayment schedule
(a) AMOUNT
The amount in our books as at 31st December, 2008 stands at N463,000,000.00 principal and N59,947, 243.46 interest, totaling N522, 947, 243. 46
You would recall that the facilities were granted under Commercial Paper arrangement with relatively high interest rate. Under the arrangement, collateral securities were not an essential part of the arrangement.”

The Appellant attached to this letter a statement of account showing the admitted outstanding balance owed the Respondent. The learned trial Judge also considered Exhibit ‘F’, another letter dated 27th May, 2009 written by the Appellant to the Respondent. I found this letter in page 26 to 27 of the record of appeal. The Appellant enclosed two copies of an executed MOU and deeds of assignment of its properties in favour of the Respondent, as the steps it was taking towards the liquidation of its indebtedness.

There was also Exhibit H5, a letter dated 28th January, 2011 (page 59 to 60 of the record), written by the Appellant to the Respondent, wherein the Appellant unequivocally admitted its indebtedness to the Respondent and the re-payment it made of 76% thereof. The Appellant thanked the Respondent for its “letter of 24th January, 2011 and our various meetings on the subject matter.” It also explained the difficulty it is facing due to “tough economic challenges facing stock broking firms in Nigeria” and it proposed a repayment plan of the balance of N132, 947, 243. 00 and pleaded with the Respondent for 50% discount of the interest on the said sum. The proposal of repayment of this balance made to the Respondent included transferring 30 plots of land and further payments in installments. After considering all these documents and testimony of the CW1 stating that the Appellant has refused to pay the balance due in the sum of N115.2Million, the learned trial Judge was convinced that the Respondent was entitled to this sum, as per its final demand letter, Exhibit ‘C’.

As can be seen from the foregoing, I have also closely examined and read each of the documents referred to and analyzed by the learned trial Judge on the record. In particular, I examined Exhibit ‘E’, copied at page 19 to 20 of the record same as the Appellant’s Exhibit L2 in page 99 to 100 of the record. Exhibit E has attached to it a statement of account in which the Appellant’s total indebtedness to the Respondent was clearly stated and admitted. I also read the MOU (page 21 to 25 of the record) signed by both parties further confirming the debt owed the Respondent, as at 31st December, 2008 was N522, 947,243.46, but that the Appellant had transferred to the Respondent properties worth N390Million leaving the outstanding balance of N132,947,243. 46 and the parties agreed that this sum would be paid over the next 18 months. They also agreed to suspend the accrual of interest from 1st April, 2009 to 30th September, 2009, after which any amount outstanding will attract 16% interest per annum from 1st October, 2009. I particularly note that in paragraph 7 of the MOU, titled “FINAL AGREEMENT”, the parties stated that:
“The parties have agreed that the terms herein shall and constitute the final understanding and agreement among the parties hereof and shall supercede any previous representations and agreement made with respect to the outstanding indebtedness of Tower to Legacy.”

The Appellant’s learned counsel has strongly posited, relying on the definition of a “memorandum of understanding”, to insist that the MOU executed by the parties in this case was not a contract and therefore not enforceable. There is no doubt that an MOU’s status is less than a complete contract. But in the peculiar facts and circumstances of this case under which the MOU was executed, I am confident to hold that the parties intended to be bound by the terms thereof. My reason is the language used in the document showing the intents of the parties in signing the MOU, especially under the heading “Final Agreement” that I reproduced supra. The parties must be taken to mean what they stated therein, more so as they proceeded to take steps in fulfilling the agreement. It is to be remembered that the background reason for the execution of the MOU in this case was the repayment of the Appellant’s indebtedness which up to that point was agreed upon vide Exhibit ‘E’/L2’. This is apparent in the MOU under the heading “REPAYMENT PLAN” wherein the Appellant and the Respondent agreed that the Appellant undertook to repay the Respondent the sum of N132, 947, 243. 46 and the terms of the repayment were stated therein. The Appellant also forwarded deeds of assignment of its properties in favour of the Respondent as agreed in the MOU as part of the repayment plan.
In the case of B. P. S. Construction Company & Engineering Ltd Vs. FCDA (2017) 10 NWLR (pt. 1572) 1 or (2017) LPELR-42516 (SC),the Supreme Court held that the MOU executed by the parties was not enforceable mainly because the parties’ understanding therein was that it was made subject to the signing of a formal contract. Both this Court and the Supreme Court held in that case, that the parties did not intend to be bound by the MOU, since it only represented a preliminary understanding of the parties’ plan to enter into a contract in the future. But in the case leading to this appeal, the parties did not make the MOU subject to the execution of any further agreement. They intended that it should be binding on them and indeed commenced the execution of the terms therein as noted supra. In this circumstance, the Appellant cannot be allowed to renege from it. See Ifeanyi Chukwu T. I. V. Ltd & Anor. Vs. O. C. B. Ltd (supra), which has similar facts to this case, (relied upon by the Respondent) where the Supreme Court, per Ariwoola, J.S.C. held:
Indeed, there was a clear admission directly on one hand by the appellants, of the indebtedness and on the other hand, an admission of the sum claimed through the appellants’ counsel. The correspondences between counsel was not denied by the appellants. This therefore is not a case that the defendants should be allowed longer time to continue to delay the settlement of their indebtedness. It would be an unwarranted indulgence by the Court and this may result into injustice to the respondent whose money the appellants had benefitted from and refused to pay back.

It has been contended by the Appellant, relying on the case of Yabola Ltd & Anor. Vs. Trade Bank Plc (supra), that the foregoing documents including the MOU constitute an ‘informal admission’ of it’s indebtedness because the admission was not made in the course of Court’s proceeding or in pleadings, and therefore they cannot operate as an estoppel against it. He argued that the learned trial Judge was wrong to hold that they constitute an admission against the Appellant.
I have read the case of Yabola Ltd Vs. Trade Bank Plc (supra) relied upon by the Appellant in support of this argument. That case was commenced before the trial High Court under its undefended list procedure. The Respondent relied on a letter from the Appellant, admitting its indebtedness. In response, the Appellant/Defendant filed an affidavit showing cause, in which he claimed that he made the admission erroneously, but the trial Court discountenanced the affidavit of the Appellant, relied on the letters in which the Appellant/defendant admitted its indebtedness and entered judgment against the Appellant/defendant. On appeal to the Jos division of this Court, Edozie J.C.A. speaking for this Court relied on the case of Okai II vs. Ayika II (1946) 2 WACA 31 and held inter alia that:
In my view, that not withstanding the 1st Appellant’s alleged admission which is open to it to explain having regards to the doubts created as to the actual amount of the Appellant’s indebtedness, the learned trial Judge ought to have allowed the appellants to defend the suit before adjudging them liable to such a staggering sum of nine million naira plus. (Underlining supplied).
It was on this ground that the ruling of the trial Court was set aside and the case ordered to be transferred to the general cause list of the High Court to be tried on the pleadings of the parties. The circumstances in Yabola’s case are different from the facts of this case because the trial/proceeding leading to this appeal was on the pleadings of the parties in which the Appellant pleaded its denial of its written admission of its indebtedness and called evidence in an attempt to explain it.
The defence that the Appellant put up in an attempt to explain its admission of indebtedness as stated earlier is that it made the admission under police threat, which was not substantiated. The exhibits were written on various dates, 2008, 2009, 2011 and 2013. It does not appeal to common sense that the Appellant’s DW1 was under police duress all these years. Moreover, in all the documents/correspondences, the Appellant referred to earlier meetings/discussions/negotiations between the parties. See also Ebla Construction Vs. Constain W/A Plc. (supra) where this Court per Jauro, J.C.A. held that admission made by a party in correspondences is against interest and constitute best evidence in favour of his adversary.
It is also noted that the Appellant’s Exhibit ‘K’, that is, the forensic expert’s report, was made after the Respondent sent Exhibit ‘C’ to it as final letter of demand of the N115.2Million. Also noteworthy is that while Exhibit ‘C’ was written on the 11th February, 2013, and this suit was filed on the 17th October, 2013, the forensic investigation was carried out, at the instance of the Appellant alone and the report issued on the 22nd November, 2013. Neither the trial Court, which was seized of the case nor the Respondent, was involved in the investigation. To make matters worst, the Appellant’s DW1 (forensic expert) stated in his evidence that Exhibit ‘K’ was not an audit report on the transaction between the parties, and he did not take into account the “high interest rate” agreed by the parties since the loan “facilities were granted under commercial paper arrangement” as stated in Exhibit ‘E’/L2’. The trial Court was therefore right, in my humble view to reject exhibit K in the circumstance. It is for this reason that I agree with the evidence of CW1 that the denial of the Appellant was an afterthought.
It means that the Appellant totally failed to satisfactorily explain or prove that it wrote the documents under duress or on any erroneous belief of the circumstances of the transaction and I so hold. Finally on issues one and two, I am of the firm view that the learned trial Judge correctly assessed the documentary exhibits placed before him and properly applied the principle of estoppel by admission and conduct backed by the provisions of Section 169 of the Evidence Act, 2011 against the Appellant in reaching his decision. I therefore resolve issues one and two against the Appellant.

ISSUE THREE
This issue distilled from grounds 5 and 6 of appeal is; considering the totality of evidence led both oral and documentary, whether the lower Court was right in holding that the Appellant who was the counter claimant at the lower Court has failed to prove on the balance of probability that the Respondent owes the amount claimed.

The complaint under this issue is against the dismissal of the counter claim of the Appellant for the sum of N333, 787, 494. 21, which it claimed it overpaid the Respondent. In proof of this counter claim the Appellant’s DW2 in his written statement on oath admitted in paragraph 9 that the Appellant received an advance of N704.5Million from the Respondent out of which it repaid N1,038,287, 494.21, which figured it, realized through a comprehensive and detailed reconciliation it carried out on the loan transaction. DW2 testified that the Appellant commissioned the forensic firm of DW1 (ParencoKonsult) to carry out investigation and report submitted to the Appellant. This was the report the DW1 presented showing the alleged overpayment of the debt and it was admitted as Exhibit ‘K’.

In my determination of issues one and two supra, I found that the trial Court was right to discountenance the forensic report because it was one sided, only carried out at the instance of the Appellant with no input from the Respondent. More importantly, the forensic expert who submitted the report admitted under cross-examination that he did not take into consideration the interest agreed by the parties on the principal sum. DW1 also said it was not an audit report of the entire transaction because he is not an auditor. Exhibit ‘K’ was the evidence the Appellant relied upon in support of its counter claim and having found same to be of no probative value, the trial Court was right to dismiss the counter claim having been unproved. Issue three resolved against the Appellant.

In his argument in support of issue three, the learned Appellant’s counsel had contended that Respondent failed to specifically deny the averments in paragraphs 17, 20 and 22 of the statement of defence and counter claim, and the facts therein are deemed admitted by the Respondent. For clarity and guidance, the facts pleaded in those paragraphs are reproduced below:
17. In response to paragraph 23 of the Statement of Claim, the Defendant erroneously promised to pay the purported and alleged indebtedness of the sum of 132, 947, 243. 46…. owing to the mistaken belief that it was still indebted to the Claimant after making various payment and transfer to the Claimant.
20. The Defendant denied paragraph 28 of the statement of claim and state that it does not owe the Claimant the sum of N115, 200, 000 … or any sum at all and further states that it is the Claimant that is indebted to the Defendant to the tune of N333,787,494. 21… being money erroneously and inadvertently over paid by the Defendant to the Claimant on the transaction.
22. In response to paragraph 31 of the statement of claim, the Defendant states that the Claimant is not entitled to the sum of N16,800,000… or any amount whatsoever from the Defendant rather it is the claimant that is indebted to the Defendant in the sum of N333,787,494. 21… being amount paid in excess by the Defendant on the transaction.

The above paragraphs (contained in pages 168 to 176 of the record of appeal) are to the effect that the Appellant overpaid the Respondent to the tune of N333,787,494.21, which sums is the subject of its counter-claim. In paragraphs 25, 28 and 29 of the Respondent’s Reply to the statement of defence and defence to the counter claim, the Respondent averred that:
25. The Claimant denies paragraphs 16, 17, 18, 19, 20, 21, 22, 25 and 27 of the statement of Defence and puts the Defendant to the strictest proof of same.
28. The Defendant took no account of the accumulated interest on the facilities advanced to it at the agreed interest rate of 28% per annum between the parties, hence this misguided Counter-Claim.
29. Whereof the Claimant contends that the Defendant’s Counter-claim is frivolous, vexatious, abuse of the Court process and should be dismissed with substantial costs.

The learned trial Judge considered the above averments on the parties’ pleadings and concluded that the Respondent has sufficiently denied the counter claim of the Appellant and I totally agreed with this conclusion. The argument of the Appellant’s learned counsel is baseless in view of the above pleadings of the parties and it is disregarded. Issue three is resolved against the Appellant.

Consequent upon resolving all the issues against the Appellant, this appeal fails and it is dismissed by me. The Judgment of the trial Judge delivered on the 18th October, 2017 in suit NO: LD/918/2013 is hereby affirmed by me. Cost of N250,000 (Two Hundred and Fifty Thousand Naira only), awarded to the Respondent.

CROSS APPEAL
The notice of the cross-appeal was filed on the 26th January, 2018 and deemed properly filed on the on the 6th March, 2019 in which the cross-appellant relied on two grounds of appeal without their particulars are reproduced below:
GROUND ONE
The learned trial Judge erred in law and on facts when she held as follows:
“In the circumstance, I find that the defendant will be liable to the amount claimed as at 11th February, 2013 with an interest of 16% per annum from that date to the date of filing this suit.
GROUND TWO
The learned Trial Judge erred in law when she held in her final order as follows:
“Interest on amount in “I” above at the rate of 16% per annum from 11th February, 2013 till 13th October, 2013 and thereafter at the rate of 10% per annum until payment of judgment sum.”

The Cross-Appellant’s brief of argument was filed on the 18th May, 2018 and deemed properly filed on the 6th March, 2019, in which the learned counsel for the cross-appellant distilled a single issue for determination of the cross-appeal thus:
Whether the trial Judge was right in holding that interest of 16% on the sum owed should run from 11th February, 2013 and not from 1st October, 2009 as agreed by the parties.

In arguing this issue, the learned counsel referred to paragraph 4 of the memorandum of understanding admitted as Exhibit ‘I’, in which both parties agreed on the interest on the sum owed by the Cross-Respondent to be at 16% per annum computed from 1st October, 2009 the date the same became payable until it is in fact paid. But that not withstanding the above agreement, the learned trial Judge limited the interest payment to be paid from 11th February, 2013 till 17th October, 2013 and thereafter at the rate of 10% per annum until full payment of the judgment sum. He submitted that this limiting date of commencement of interest amount to the trial Court re-writing the agreement of the parties which it has no jurisdiction to do.

He further argued that since the trial Court rejected the claim of the Cross-Appellant for general damages on ground of double compensation, and held that the interest rate was enough compensation, the learned trial Judge was bound to confine the payment of interest rate to the agreement of the parties, since both the parties and the Court are bound by the terms and conditions agree to. Therefore the trial Court has no jurisdiction to add or subtract from the terms nor are the parties thereto allowed to unilaterally alter them. He relied on the case of Golden Construction Co. Ltd. Vs. Stateco Nig. Ltd (2014) 8 NWLR (pt. 1408) 171 at 195-196, paragraphs E- A in support of his argument and in urging the Court to allow the cross-appeal.

In response to the cross-appeal, the Cross-Respondent filed its brief on the 15th September 2020 deemed properly filed and served on the 21st September, 2020 wherein it proposed a sole issue for determination as:
Whether the Cross-Appellant will be entitled to any interest where the principal sum was not established.

The cross-Respondent’s learned counsel submitted that before a party may be entitled to interest at all in a monetary transaction, the principal sum must first be established and settled without any controversy and the interest strictly proved. Further argued that the MOU that the cross-appellant relied upon that stipulated the time the interest rate will begin to run is not a valid contract that can bind the parties but only a document that contains the preliminary understanding of the parties willing to enter into a contract based on the conditions contained therein. Therefore the interest rate captioned in paragraph 4 of the MOU cannot be enforced. He relied on the cases of BPS Construction & ENG Ltd Vs. FCDA (2017) LPELR-42516 (SC), Safetrust Saving & Loan Vs. Gov. of Ekiti (2014) LPELR 22778 (CA) in support.

RESOLUTION OF THE CROSS-APPEAL
I adopt the issue submitted by the learned counsel for the Cross-Appellant to determine the cross-appeal. It is noted that the learned trial Judge did not tamper with the rate of interest, i.e. 16% agreed by the parties. But he reduced the period the parties agreed that the interest should commence on the outstanding unpaid debt. It is elementary law that parties and indeed the Courts are bound by terms of agreement that the parties themselves willingly entered. The intent of the parties must be read from the words they used in the agreement in issue. See Star Finance & Property Ltd & Anor. Vs. NDIC (2012) LPELR-8394 (CA) and Baba Vs. Civil Aviation & Anor. (1991) 5 NWLR (pt. 192) 388.
In this case, the parties have indeed agreed in paragraph 10 of the MOU (pages 21 to 25 of the record that:
ADH (Respondent) has agreed to suspend the accrual of interest on the N132, 947, 243. 46 (One Hundred and Thirty-two Million, Nine Hundred and forty-seven Thousand, Two Hundred and Forty-three Naira, Forty-six Kobo only) with effect from 1st April to 30th September, 2009 after which the amount outstanding on account will attract an interest rate of 16% per annum effective 1st October, 2009. (Underlining supplied)
The clear intention of the parties is captured in the above agreement they willingly entered. The argument of the Respondent to the effect that the MOU is not a binding contract has been dealt with in my determination of the main appeal, wherein I distinguish the facts of this case with the facts in the case of BPS Construction & ENG Ltd Vs. FCDA (2017) LPELR-42516 (SC)(supra) with the facts of this case. I adopt my finding in the main appeal to the effect that the parties are bound by the terms of conditions of the MOU, and I therefore discountenance his argument in this cross appeal.

I agree with the cross-appellant’s argument that the learned trial Judge was wrong to have limited the period the payment of 16% should commence from 11th February, 2013 as per Exhibit C, final demand letter. The 16% interest on the sum of N115.2Million granted to the cross appellant shall run from 1st October, 2009 till the 17th October, 2013 and thereafter at 10% per annum till final liquidation of the judgment sum. The cross appeal succeeds and it is allowed by me.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I have had the honour of reading in print the painstaking judgment prepared by my learned brother, BALKISU BELLO ALIYU, J.C.A., with which I agree with the addition of these few words, by way of emphasis.

I desire to preface my judgment with the fact that the case depended essentially on documentary evidence which an appellate Court is entitled to evaluate vide the general powers of the Court under Section 15 of the Court of Appeal Act, 2004, as amended, read with the cases of Salzgitter Stahl GMBH v. Tunji Dosunmu Ind. Ltd. ​(2011) 11 NWLR (pt. 1206) 589, Arije v. Arije and Ors. (2018) 16 NWLR (pt.1644) 67 at 83 – 84.

Exhibit I2 had stated that the parties (the appellant and the respondent) agreed that the terms contained therein shall and constitute the final understanding and agreement among them. Exhibit I2 was on that score not only final understanding but also an agreement between the appellant and the respondent. An ‘agreement’ is the act of coming into accord or a covenant or a contract in law (Webster, Comprehensive Dictionary, International Edition page 29). Exhibit I2 is therefore a contract in law. Accordingly, the Court below was right to hold that the appellant was bound by Exhibit I2 as a contractual document.

The appellant admitted indebtedness in Exhibits H5 and I2 before the dispute became a subject of litigation. There is also Exhibit E, the statement of account prepared by the appellant. (tendered as Exhibit L2 by the respondent) on the state of the indebtedness. The appellant therefore had the onus to prove repayment of the debt with respect to the sum awarded by the Court below vide Michael Phares v. Joseph Abdallah (1941) 7 W.A.C.A. 13 at 16 (last paragraph). Exhibit C was a correspondence from the respondent to the appellant demanding repayment of the indebtedness of N115.2 Million. The appellant did not respond to the letter. Exhibit C, at the time it was served on it and up to the time the respondent filed the action at the Court below.
It is trite that correspondence of the sort charging a party with liability if not replied to is deemed an admission of liability by the party charged therewith vide Gwani v. Ebule (1990) 5 NWLR (pt.149) 201 at 207, Chemical Allied Products Plc v. Vital Investment Ltd.(2006) 6 NWLR (pt.976) 220 at 267, Cooperative Dev. Bank Plc. v. Arc. Mfon Ekanem and Ors. (2009) 16 NWLR (pt.1 168) 585 at 601.
The appellant having taken to have admitted the indebtedness of at least N115.2 Million by its silence on the demand for repayment of the said sum by the respondent in Exhibit C, the Court below was right to enter judgment in the uncontested and established lesser sum of N115.2 Million as earlier stated in the lead judgment.

It is for the reasons (supra) and the thorough reasons given by my learned brother, BALKISU BELLO ALIYU, J.C.A., that I too find no merit in the appeal and would also dismiss it but however, find some substance in the cross-appeal with respect to the running of the 16% interest on the sum of N115.2 Million from 01.10.2009 to 17.10.2013 and also hereby allow the cross-appeal to the extent afore-stated in the lead judgment. Parties to bear their costs.

EBIOWEI TOBI, J.C.A.: I have read in advance the draft leading judgment of my learned brother. BALKISU BELLO ALIYU, J.C.A., and I agree in toto with my Lord’s resolution on all the issues presented by the parties for determination by this Honourable Court. On my part, I have nothing more to add.

Appearances:

OLUDARE FALANA ESQ. For Appellant(s)

CLEMANT ONWUENWUNOR ESQ. For Respondent(s)