UNICORN ENTERPRISES LIMITED & ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION (2019)

UNICORN ENTERPRISES LIMITED & ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION

(2019)LCN/13337(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2019

CA/L/283/2016

RATIO

JOINDER: WHO CAN BE JOINED IN A SUIT AND WHY

See: BELLO Vs. INEC & ANOR (2010) [2010] 8 NWLR (Pt. 1196) 342 SC; LPELR-SC.330/2008 Pg. 76, Paras. A – D where ADEKEYE JSC held that: The person to be joined must be someone whose presence is necessary and the only reason which makes him a necessary party to the action is that he should be bound by the result of the action which cannot be effectually and completely settled unless he is a party”.PER TIJJANI ABUBAKAR, J.C.A.

JOINDER: WHAT MUST THE APPLICATION SHOW

The law is settled that the Applicant for joinder must show that he is not only a person interested but that the decision of the Lower Court prejudicially affected his interest.PER TIJJANI ABUBAKAR, J.C.A.

PRELIMINARY OBJECTIONS IN APPEALS: NATURE

See: ZENITH BANK & ANOR Vs. OLIMPEX (NIG) LTD (2018) LPELR-45573 (CA) Pg. 9-11, Paras. E-C where I referred to the earlier decisions of this Court in GUTING Vs. DAVWANG (2013) LPELR-21921 (CA) Pg. 43, Paras. B-F and ASIKPO & ANOR Vs. GEORGE & ANOR (2012) LPELR-9330 (CA) Pg. 13-14, Paras. D-C, where it was held that:

“An objection which does not challenge the competence of an appeal but only challenge one or some of the grounds or issue raised in the appeal, does not challenge the hearing of the appeal as provided by the provisions but only attacks or complaints about some grounds or issues which even if successful, does not terminate the proceedings or hearing the appeal. Such an objection does not fall within the provisions of Order 10 Rule 1 above and so are not applicable to it. It is an objection a party (Respondent) is entitled to raise at the hearing in his brief of argument as a point of law to be considered in the determination of the appeal…PER TIJJANI ABUBAKAR, J.C.A.

DEBT: ADMISSION OF DEBT: WHAT DOES IT MEAN

In AKANINWO Vs. NSIRIM (2008) 9 NWLR (Pt. 1093) 439; (2008) LPELR-321 (SC) Pg. 50, Para. A, the Supreme Court of Nigeria per NIKI TOBI, JSC (of blessed memory) held that: An admission of debt is a solemn declaration of indebtedness to the plaintiff in the sum admitted. See also BAGOBIRI Vs. UNITY BANK PLC (2016) LPELR-41161 (CA) Pg. 22-23, Para. F B . PER TIJJANI ABUBAKAR, J.C.A.

DEBT: ADMISSION OF DEBT: DUTY OF THE COURT WHERE THERE IS AN ADMISSION OF DEBT

THADANI & ANOR Vs. NATIONAL BANK OF NIGERIA & ANOR (1972) 1 SC (Reprint) 75; (1972) LPELR-SC.63/1969 where COKER, JSC said on the issue of admission of indebtedness that: It is the duty of a Court called upon to decide such an issue to study carefully the document on which reliance is placed by the defendant and ascertain as best as it can whether the document by its contents does recognize the existence of a right of recourse against himself. It is not necessary that the document should state the precise figure of indebtedness.PER TIJJANI ABUBAKAR, J.C.A.

APPEAL: AN APPELLATE COURT WILL ONLY INTERFERE IN THE DISCRETION OF THE TRIAL COURT WHERE THE JUDGMENT OF THE LOWER COURT IS PERVERSE

It is settled law that an Appellate Court will not interfere with the exercise of discretion and findings of the lower Court except where same is shown to be perverse and therefore occasioned a miscarriage of justice or was the decision was concreted on misapprehension of the facts, for instance, where the lower Court acted under a misconception of the law or under a misapprehension of facts or took into consideration extraneous matters. See: AKILU Vs. FAWEHINMI (No. 2) [1989] NWLR (Pt. 102) Pg. 122; (1989) LPELR-339 (SC) Pg. 65-71, Paras. A – A; OSHE Vs. OKIN BISQUITS LTD & ANOR [2010] 11 NWLR (Pt. 1206) 482; (2010) LPELR-2798 (SC) Pg. 20, Paras. B – C and FALEYE & ORS Vs. DADA & ORS (2016) LPELR-40297 (SC) Pg. 33-34, Paras. E C where the Supreme Court, MUHAMMAD, JSC held that:

This Court has stated it times without number that it is none of its functions or indeed that of an appellate Court to substitute its own views of the evidence for those of the trial Court that is better placed to deal with those matters. The appellate High Court could only have interfered with findings of facts of the trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice.PER TIJJANI ABUBAKAR, J.C.A.

ADMISSION: WHEN IT IS ADMISSIBLE AGAINST THE MAKER

See:FAYEMI & ANOR Vs. ONI & ORS (2010) LPELR-4145 (CA) Pg. 84, Para. C ? E; EGBUTA & ANOR Vs. ELEKWACHI & ORS (2013) LPELR- 20666 (CA) Pg. 51-52, Para. F ? B where this Court held that:

The law is trite that an admission by a party against is interest is admissible against that person

In other words, a statement, oral or written made by a party in a civil proceeding, and which statement is adverse to his case, is admissible against him in the proceedings as evidence against him of the truth of the facts ascertained in the Statement.PER TIJJANI ABUBAKAR, J.C.A.

APPEAL: THE EFFECT OF NOT APPEALING AGAINST CERTAIN FINDING AND ORDER OF A LOWER COURT

See the decision of the Supreme Court in ONAFOWOKAN & ORS Vs. WEMA BANK PLC & ORS (2011) LPELR-2665 (SC) Pg. 41, Paras. B – G, where it was held that: It is trite that the finding and order of lower Court not appealed against remain valid and subsisting See also STEPHEN OGBEBOR & SONS SAWMILL LIMITED Vs. CHIEF ADUN(2014) LPELR-22764 (CA) Pg. 23, Paras. C – F; SNIG NIGERIA LIMITED Vs. WEMA BANK PLC (2016) LPELR-40576 (CA) Pg. 20-21, Paras. C C and GUDUSU Vs. ABUBAKAR (2017) LPELR-43007 (CA) Pg. 20, Paras. D -F.PER TIJJANI ABUBAKAR, J.C.A.

INTEREST: THE AWARD OF INTEREST PRE-DATING THE DATE OF JUDGMENT

In AFRIBANK (NIG.) PLC Vs. AKWARA (2006) 5 NWLR (Pt. 974) 619; (2006) LPELR-199 (SC) Pg. 43, Paras. D – G the Supreme Court of Nigeria per OGBUAGU, JSC heldthat: It is now settled, that except where parties have agreed on payment of interest, it is not right to award interest pre-dating the date of judgment. There must be express agreement that the interest will be chargedSee also the latter decision in DIAMOND BANK LTD Vs. PARTNERSHIP INVESTMENT CO. LTD & ANOR (2009) 18 NWLR (Pt. 1172) 67 SC; (2009) LPELR-939 (SC) Pg. 29, Paras. D – G.PER TIJJANI ABUBAKAR, J.C.A.

INTEREST: HOW TO APPLY FOR A PRE-JUDGMENT INTEREST

I am mindful of the recent decision of the Supreme Court in NPA Vs. AMINU IBRAHIM CO. & ANOR (2018) LPELR-44464 (SC) Pg. 39-40, Paras. C ? B where SANUSI, JSC said that:

The law is very settled that before a pre-judgment interest can justifiably be awarded, a plaintiff often pleads that he is entitled to such interest and also that where he so pleads it, he must prove the basis of his entitlement of same by showing that it was supported either by statute or contract agreement between the parties or based on mercantile custom or on the principle of equity. Such claim of interest is normally pleaded and proved. It is however a valid law that a Court can still grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in the instant case, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his judgment.PER TIJJANI ABUBAKAR, J.C.A.

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

1. UNICORN ENTERPRISES LIMITED

2. MR. FESTUS O. AJANI – Appellant(s)

AND

NIGERIA DEPOSIT INSURANCE CORPORATION

(As Liquidator of Trade Bank Plc) – Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Lagos State sitting in the Ikeja Judicial Division, delivered by JOSE, J. on the 17th day of December, 2015 in Suit No: LD/405/2005 which is contained at pages 946 ? 973 of the Records of Appeal wherein the learned trial Judge dismissed the 1st Appellant?s Claim and granted in part the Counter-Claim of the Respondent against the Appellants. The Appellants as Claimants commenced this suit by Writ of Summons and Statement of Claim as contained at pages 1 ? 8 of the Records of Appeal; the last amended Statement of Claim was filed on the 17th day of November, 2008 as contained at pages 139 ? 151 of the Records of Appeal.

?In response to the Appellants? Claim, the Respondent filed its 4th Amended Statement of Defense and Counter-claim on the 10th day of December, 2013 as contained at pages 247 ? 260 and 183 ? 184 of the Records of Appeal. The Appellants on their part filed a Consequential Amended Reply and Defense to Counter-Claim dated 28th February, 2014 as contained at pages 237

? 244 of the Records of Appeal. The Respondent as Counter-Claimant then filed an Amended Reply to the Defense to the Counter-Claim on the 2nd day of February, 2012 as contained at pages 170 ? 172 of the Records of Appeal. Trial commenced on the 22nd day of February, 2012 and parties called their respective witnesses and tendered several Exhibits; in the end the learned trial Judge dismissed the Appellants? claims and granted the Respondent?s Counter-claim in part.

Nettled by the decision of the lower Court granting the Respondent?s Counter claim, the Appellants filed an Amended Notice of Appeal on the 2nd day of June, 2016 which was deemed as properly filed and served on the 30th day of May, 2015. The said Amended Notice of Appeal is premised on 10 (ten) grounds of appeal. The Amended Appellants? Brief of Argument was filed by Adebowale Kamoru Esq on the 7th day of June, 2018 it was deemed as properly filed and served on the 3rd day of October, 2018. The Respondent?s Brief was filed through learned Senior Counsel, Layi Babatunde, SAN on the 15th day of January, 2019 but deemed as properly filed and served on the

17th day of January, 2019. The Appellants through learned Senior Counsel, Kemi Pinheiro, SAN filed their Reply Brief on the 21st day of February, 2019 which was deemed as properly filed and served on the 28th day of February, 2019. Learned counsel Senior Counsel for the Appellants distilled 3 (three) issues for determination, they are set out as follows:

1. Whether the Court below was right in entering judgment against the Appellants on the strength of Exhibit P17. (Distilled from Grounds 1-5, 8 & 9 of the Amended Notice).

2. Is the decision of the Court below adjudging the Appellants liable to pay pre-judgment interest on the principal judgment sum of N30 Million, supportable by law and available evidence? (Distilled from Grounds 6 & 10 of the Amended Notice).

3. Having regards to the joinder of issues and available evidence, is the Court below right in its decision that Exhibit D24 created a continuing guarantee and on the basis of which the 2nd Appellant was held liable? (Distilled from Ground of the Amended Notice).

The Learned Senior Counsel for the Respondent on the other hand nominated a sole issue for determination, the sole

issue is also set out as follows:

Having regards to the pleadings, evidence on record and the law, was the trial Court right when it entered Judgment in favour of the Respondent in the Terms it did?

PRELIMINARY POINTS

The Learned Senior Counsel for the Respondent raised some Preliminary Points in the Respondent?s Brief, the first point is that the Appellants without any Order of the lower Court changed the character of the parties in the instant appeal. The learned Senior Counsel argued that there were three Defendants on record to the Respondent?s Counter-Claim namely: the 1st and 2nd Appellants as 1st and 2nd Defendants respectively; and Mr. Abdul Raheem Salami as 3rd Defendant. Counsel relied on APEH Vs. PDP [2016] 1-2 SC (Pt. IV) Pg. 60 at 92-93, Paras. 30 ? 5 to urge this Court to hold that the Appellants have no power to change the character of the suit without the leave of Court.

The Learned Senior Counsel for the Respondent further contended that paragraphs 4:17, 4:18, 4:36 and 4:61 of the Appellants Brief should be struck out for being highly offensive and unduly disparage the learned trial Judge for not just

cause. Counsel relied on TAYAR TRANS ENT. NIG. CO. LTD. Vs. BUSARI & ANOR [2011] 1-2 SC (Pt. II) Pg. 140 at 184-185; SALAWU & ANOR Vs. YUSUF & 2 ORS [2007] 5 SC (Pt. IV) Pg. 35 at 61 and NWANJI Vs. COASTAL SERVICE (NIG) LTD [2004] 6-7 SC Pg. 38 at 49-51 to submit that it has been held that to allege that a Judge has taken sides in a case by way of bias or interest is a very serious allegation and same amounts to bad advocacy. Counsel therefore urged this Court to expunge the offending paragraphs.

In the Reply Brief, learned Senior Counsel for the Appellants submitted that Mr. Abdul Raheem Salami was the 3rd Defendant to the Respondent?s Counter-Claim; but that the lower Court, particularly at page 972 of the Records of Appeal dismissed the claims against him; and that nothing was decreed either in favour of or against the said Mr. Abdul Raheem Salami and therefore he could not have been made a party to this appeal. Counsel referred to Order 7 Rule 2(i) of the Court of Appeal Rules, 2016 and argued that the case of APEH Vs. PDP (Supra) was cited out of contest because in the said case, the Appellants at Supreme Court were not named as

parties at both the trial Court and the Court of Appeal which is not the case in this instance. Learned Senior Counsel for the Appellants further relied on BUKOYE Vs. ADEYEMO [2017] 1 NWLR (Pt. 1546) Pg. 173 at 191 to submit that the Appellants are not bound to retain all the parties at the trial and that excluding the 3rd Defendant to the Counter-Claim in this appeal is in consonance with the Rules of this Court.

The Learned Senior Counsel further argued in respect of the alleged bad advocacy that the paragraphs referred to in the Respondent?s Brief as disparaging and accusing the learned trial Judge of bias are nothing but dispassionate criticisms and attack on the decision of the trial Court and that there is nothing uncomplimentary, offending or derogatory in the language employed in the said paragraphs of the Appellants? Brief. The learned Senior Counsel referred to NBA Vs. AJAYI [2017] 13 NWLR (Pt. 1581) Pg. 151 at 172-173 and submitted that the submissions of the learned Senior Counsel for the Respondent on this point amounts to an unfair and unwarranted incitement.

RESOLUTION OF PRELIMINARY ISSUES

The first point on the

non-joinder of the 3rd Defendant to the Counter-Claim is in my opinion unfounded and baseless. The said 3rd Defendant is at liberty to join the Appellants herein as an Appellant or even file a separate appeal to the said decision; it is not the duty of this Court or anyone at all to join the said 3rd Defendant as a party to this appeal. It suffices that the Appellants herein who were the 1st and 2nd Defendants to the Respondent?s Counter-Claim at the lower Court filed this appeal and the competence of this appeal has in no way been compromised. See: BELLO Vs. INEC & ANOR (2010) [2010] 8 NWLR (Pt. 1196) 342 SC; LPELR-SC.330/2008 Pg. 76, Paras. A ? D where ADEKEYE JSC held that: The person to be joined must be someone whose presence is necessary and the only reason which makes him a necessary party to the action is that he should be bound by the result of the action which cannot be effectually and completely settled unless he is a party”.

The law is settled that the Applicant for joinder must show that he is not only a person interested but that the decision of the Lower Court prejudicially affected his interest.

In the instant case, where as shown in the records of appeal, the trial Court dismissed the claim against the 3rd Defendant; the absence of the said 3rd Defendant does not affect the competence of this appeal.

With respect to the Respondent’s observation on paragraphs 4:17, 4:18, 4:36 and 4:61 of the Appellants Brief; I am of the opinion that this does not in any way distort the competence of this appeal. It is settled that the purpose of a preliminary objection is to challenge the competence of the Court to hear and determine the appeal and not to challenge paragraphs forming part of the issues in the appeal. See: ZENITH BANK & ANOR Vs. OLIMPEX (NIG) LTD (2018) LPELR-45573 (CA) Pg. 9-11, Paras. E-C where I referred to the earlier decisions of this Court in GUTING Vs. DAVWANG (2013) LPELR-21921 (CA) Pg. 43, Paras. B-F and ASIKPO & ANOR Vs. GEORGE & ANOR (2012) LPELR-9330 (CA) Pg. 13-14, Paras. D-C, where it was held that:

“An objection which does not challenge the competence of an appeal but only challenge one or some of the grounds or issue raised in the appeal, does not challenge the hearing of the

appeal as provided by the provisions but only attacks or complaints about some grounds or issues which even if successful, does not terminate the proceedings or hearing the appeal. Such an objection does not fall within the provisions of Order 10 Rule 1 above and so are not applicable to it. It is an objection a party (Respondent) is entitled to raise at the hearing in his brief of argument as a point of law to be considered in the determination of the appeal…?

See also the decision of the Supreme Court in NNPC Vs. FAMFA OIL LTD (2012) LPELR-7812 (SC) Pg. 32-33, Paras. G ? E where RHODES-VIVOUR JSC said that Preliminary Objection are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal.? In the circumstance therefore, I am of the opinion that the preliminary points (or objection as it were) raised by the learned senior counsel does not in any way challenge the competence of this Court to hear and determine this appeal; same is therefore discountenanced. I will now proceed to consider and determine the issues distilled for

determination in the substantive appeal.

SUBMISSIONS OF COUNSEL FOR THE APPELLANTS

ISSUE ONE

Learned counsel referred to paragraphs 19 and 20 of the 1st Appellant’s Statement of Claim at pages 144 of the Records of Appeal; paragraphs 2 (aa) and 4 of the 4th Amended Statement of Defense and Counter-Claim by the Respondent at pages 254 & 257 of the Records of Appeal counsel; paragraph 21 of the Appellants Amended Reply at page 241 of the Records of Appeal; Exhibit P17 at pages 756-759 of the Records of Appeal and Exhibit D10. Counsel then referred to the findings of the lower Court with respect to Exhibits D10 and P17 at pages 969-970 of the Records of Appeal; and submitted that the finding and conclusion of the learned trial Judge referred to are perverse and erroneous. Learned Counsel argued that Exhibit P17 was held as amounting to conclusive admission simply because Exhibit P4 had been held to be of no value by the same learned trial Judge and accordingly, the Appellant’s defense that it authored Exhibit P17 before seeking the professional advice contained in Exhibit P4 could no longer hold. Counsel

submitted that the view of the learned trial Judge can only be valid if the Appellants defense against Exhibit P17 is tied only to the subsequent professional advice in Exhibit P4.

The learned Counsel argued that the Appellants also offered as explanation the fact that they authored Exhibit P17 under the erroneous belief that the debit balance on the 1st Appellant?s account as put forward by the Respondent truly and properly reflected the alleged indebtedness of the 1st Appellant and also that the 1st Appellant had no benefit of professional advice that it was the Respondent that was indebted to it before writing Exhibit P17. Counsel referred to SAMBA PETROLEUM LTD & ANOR Vs. UBA PLC & ORS [2010] 6 NWLR Pg. 530 at 531 and submitted that the learned trial Judge was silent on the explanations offered by the Appellants and that the learned trial Judge owed a duty to the Appellants to consider their case in its entirety and express a view regarding same particularly the Appellants? submission that Exhibit P17 was made under mistaken belief that the 1st Appellant?s account as presented by the Respondent truly reflected the fact that

the 1st Appellant was indeed indebted to the Bank.

Learned Counsel submitted that the learned trial Judge was wrong to have held that Exhibit P17 is a conclusive proof of admission of the 1st Appellant?s indebtedness in the sum of N30, 000,000.00 when the trial Judge had found that the 1st Appellant?s Statement of Account ? Exhibit D10 was incapable of proving the alleged indebtedness of the 1st Appellant. Counsel referred to Law and Practice Relating to Evidence in Nigeria by Akinola Aguda, 1st Ed., Pg. 50, Para. 4.04 and submitted that the learned trial Judge was wrong to have relied on Exhibit P17 as though same could solely and independently establish the Respondent?s Counter-Claim. Counsel argued further that the Respondent?s Counter-Claim was founded on Exhibit D10 and therefore, the Respondent ought not to have been allowed to rely on the strength of Exhibit P17 tendered by the Appellants.

Learned Counsel referred to ODUTOLA Vs. PAPERSACK [2006] 18 NWLR (Pt. 1012) Pg. 470 at 494 and further argued that Exhibit P4 was offered by the 1st Appellant as a proof of its claim for refund of the amounts alleged to be

overcharges imputed in its account by the Respondent; and that the rejection of Exhibit P4 by the learned trial Judge does not translate to a proof that the Appellants were indebted to the Respondent but that the consequence of the trial Judge?s refusal to attach weight to Exhibit P4 is that the 1st Appellant’s claim of refund of overcharges by the Bank would fail. Counsel further argued that Exhibit P17 was written in response to Respondent?s letters dated 22nd September, 2004 and 2nd November, 2004 admitted Exhibit P9 and P10 as contained at pages 722 and 723 of the Records of Appeal; and that Exhibit P17 rather than being an admission, is merely an offer of compromise in a reaction to the appeal for amicable settlement by the Respondent in Exhibit 10. Counsel argued that the offer of compromise was predicated upon the 1st Appellant?s conviction that the principal loan itself had been paid and what was being alleged as debit balance on its account was nothing but interest.

Learned counsel referred to F.A.B.S. LTD Vs. IBIYEYE [2008] 14 NWLR (Pt. 1107) Pg. 375 at 412-413; FAWEHINMI Vs. NBA (No. 2) [1989] 2 NWLR (Pt. 105) Pg. 558

at 622 and Section 26 of the Evidence Act to submit that an offer of compromise cannot constitute an admission upon which a Judgment can be sustained. Counsel further referred to paragraph 4 of the Respondent?s Statement of Defense at page 257 of the Records of Appeal to submit that the Respondent having pleaded and established that it opposed the offer made by the Appellants in Exhibit P17; the trial Judge cannot hold the same offer to be an admission in favour of the Respondent. In conclusion on this issue, the learned counsel cited AKANBI Vs. ALATEDE (NIG) LTD [2000] 1 NWLR (Pt. 639) Pg. 125 at 146, Para. F; ASHIBUOGWU Vs. A.G., BENDEL STATE [1988] NWLR (Pt. 69) Pg. 138; ABUBAKAR Vs. YAR?ADUA [2008] 19 NWLR (Pt. 1120) Pg. 153-154 and ONYEKWELU Vs. ELF PETROLEUM NIG. LTD. [2009] 5 NWLR Pg. 181 SCB to submit that parties are in law enjoined to be consistent in the presentation of their cases; and that the Respondent who rejected the offer made by the Appellants cannot turn around and take benefit of same.

ISSUE TWO

Learned counsel for the Appellants referred to the findings made by the learned trial Judge at pages 970 ? 971 of the

Records of Appeal and submitted that the award of interest made by the learned trial Judge made without jurisdiction and unsupportable by law and evidence on records. Counsel argued that there is nowhere in the purported admission in Exhibit P17 where the Appellants admitted any liability on interest; and that the award of interest made by the learned trial Judge was influenced by the misconception that the judgment was based on the debit balance owing and due to the 1st Appellant?s Statement of Account with the Respondent. The learned Counsel further argued that the claim for interest made in the Counter-Claim was not predicated on the sum allegedly admitted but upon the debt claimed to be due on the Appellant?s account as shown in Exhibit D10 which was found by the trial Judge as not established. Counsel cited COKER Vs. OLUKOGA [1994] 2 NWLR (Pt. 329) Pg. 648 at 662 and ATM Vs. B.V.T. LTD [2007] NWLR (Pt. 1015) Pg. 259 to submit that there is no iota of evidence of admission by the Appellant with respect to the interest awarded by the learned trial Judge and that the learned trial Judge had no jurisdiction to have made such award of interest.

Learned counsel further argued that even if, although not conceded that the trial Court could rightly make an award of interest which was not admitted by Exhibit P17, the said award must meet the requirements of the law. Counsel referred to Exhibit D8 relied upon by the learned trial Judge and argued that the agreement of the parties with respect to interest was at the rate of 15.5% on the facility offered by Exhibit D8 which was to be in force for 90 days and to expire on 2nd of February, 2004. Learned Senior Counsel submitted that the Judgment of the lower Court awarding interest at the rate of 15.5% till judgment was delivered contradicts the clear agreement in Exhibit D8 which formed the basis of the award of interest by the learned trial Judge. The learned Counsel argued that there is nothing in Exhibit D8 indicating that the facility shall be treated as a continuing facility; and that the terms and conditions regulating the loan facility in Exhibit D8 including the loan facility ceased to apply from 2nd of February, 2004 or alternatively, 20th of December, 2004 being the terminal date for repayment as stated in Exhibit P9.

Learned counsel for the

Appellants argued further that the Respondent did not claim damages for breach arising from the Appellants? failure to pay the alleged outstanding debt upon maturity of the debt in Exhibit D8 or Exhibit P9. Counsel referred to UBA PLC Vs. LAWAL [2008] 7 NWLR (Pt. 1087) Pg. 613 at 632 – 633 and submitted that in the absence of evidence of any roll-over of the facility in Exhibit D8 beyond 2nd of February, 2004; it was not open to the lower Court to have proceeded to award interest at the rate of 15.5% agreed in the said Exhibit D8 to cover the period beyond 2nd of February, 2004. The learned Counsel cited AIROE CONSTRUCTION LTD Vs. UNIVERSITY OF BENIN [1985] 1 NWLR (Pt. 2) Pg. 287 to argue that what the Respondent would have been entitled to after the debt purportedly became due upon expiry of Exhibit D8 and alternatively the repayment date stated in Exhibit P9 is damages for breach of contract to repay the loan; and that such damages must be specifically pleaded and proved which is not the case in this instance. Counsel urged this Court to resolve this issue in favor of the Appellants.

ISSUE THREE

Learned counsel for the Appellants referred to

paragraphs 2, 3, and 4 of the Appellants Counter-Claim at page 158 of the Records of Appeal wherein the 2nd Appellant (as 2nd Defendant) and the 3rd Defendant were alleged to have executed Personal Guarantees in favour of the Respondent in respect of the facilities granted to the 1st Appellant; Counsel also referred to Exhibit D24 and submitted that the 2nd Appellant contended before the lower Court that he did not execute any guarantee in respect of the loans which were the subject matter of the Respondent?s Counter-Claim and that Exhibit D24 is a Guarantee executed by the 2nd Appellant in 1996 in favour of the Bank but in respect of an entirely independent and distinct transaction different from the loan transactions forming the subject matter of the Respondent?s Counter-Claim which commenced in 1998.

Learned counsel referred to the findings of the lower Court in the Judgment at page 972 of the Records of Appeal to submit that the learned trial Judge dismissed the Counter-Claim as against the 3rd Defendant but sustained same against the 2nd Appellant. Counsel referred to paragraph 2(f) of the Respondent?s Counter-Claim at page 248 of

the Records of Appeal; paragraph 4 of the Appellants? Defense to the Counter-Claim at page 245 of the Records of Appeal and the paragraph 3(iii) of the Respondent?s Reply by the Appellants? Defense to the Counter-Claim at page 171 of the Records of Appeal to argue that the conclusion of the learned trial Judge that Exhibit D24 which is contained at pages 912 ? 919 created a continuing guarantee in favour of the Respondent does not stem from case presented by the Respondent. Learned counsel contended that the Respondent never pleaded or led evidence to the effect that the Guarantee which was executed in 1996 before the commencement of the facilities forming the subject matter of its Counter-Claim was a continuing guarantee which applied to the facilities granted in 1998.

Learned counsel further submitted that the case presented by the Respondent before the lower Court was that with respect to the facility granted in 1998, the 2nd Appellant executed a Personal Guarantee. Counsel referred to I.F.C Vs. D.S.N.L. OFFSHORE LTD [2008] 9 NWLR (Pt. 1093) Pg. 606 at 632, Para. C; ADEBAYO Vs. OJA-IYA COMMUNITY BANK (NIG.) LTD [2004] 11 NWLR

(Pt. 885) Pg. 573 and NNAJI Vs. LUKA MADAKI & ANOR(2012) LPELR-20097 (CA) to submit that the lower Court descended into the arena and assisted the Respondent to fight it?s a case in a manner contrary to the pleadings and evidence of the Respondent. Counsel further argued that the Respondent knew that Exhibit D24 was executed in 1996 and did not plead that the said Guarantee was a continuing Guarantee and therefore extended to the facilities granted in 1998; and that it was not the duty of the learned trial Judge to help the Respondent build its case. Learned counsel further submitted that there is nowhere in the offer letters ? Exhibits D1 ? D8 where it was stated that any existing Guarantee would serve as security for the facilities. Counsel urged this Court to resolve this issue in favour of the Appellants; allow this appeal; set aside the decision of the lower Court; and dismiss the Respondent?s Counter-Claim and order the Respondent to release the original copies of the 2nd Appellant?s title documents in possession of the Respondent.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENT

The learned senior counsel for the

Respondent referred to the findings of the lower Court in favour of the Respondent at pages 946 ? 973 of the Records of Appeal. Learned Senior Counsel reproduced Exhibit P17 and contended that the Appellants have wrongly submitted that the learned trial Judge erred in law to have held that Exhibit P17 constituted an admission against the Appellants. The learned senior counsel relied on ANASON FARMS LTD Vs. NAL MERCHANT BANK [1994] 3 NWLR (Pt. 331) Pg. 241 at 294-254 to submit that where a Court is called upon to decide whether or not the content of a letter constitutes an admission, the jurisdiction of such Court is limited only to interpreting the contents of such letter. The learned Senior Counsel further argued that the accompanying explanations by the Appellants? counsel is only an attempt to deny the admission by the Appellants as contained at paragraph 21 of the Appellants? Consequential Amended Reply at pages 237 ? 244 of the Records of Appeal.

Learned senior counsel submitted further that the said ?exculpatory circumstances? relied on by the Appellants is not contained in Exhibit P17 and equally inconsistent

with contents of the said Exhibit P17. Learned silk submitted that the Appellants have not in any way contended that Exhibit P17 is ambiguous in its terms; and that it is only where there is ambiguity in Exhibit P17 that the lower Court can resort to ?exculpatory circumstances? to interpret the contents of a letter constituting admission. Learned Counsel further referred to OYEYEMI & ORS Vs. OWOEYE & ANOR [2017] 2-3 SC (Pt. IV)Pg. 117 and APGA Vs. OYE & 4 ORS [2018] 7 SC (Pt. III) Pg. 1 to submit that the contention by the Appellants that Exhibit 17 constitutes an offer and not an admission is an attempt to take technicality in adjudication too far. The learned Senior Counsel relied on M. G. M. LTD Vs. NSP LTD [1987] 4 SC 105; [1987] 2 NWLR (Pt. 55) to submit that where a party makes an admission before the commencement of a case, the party who makes such an admission is precluded from filing his pleadings in such a manner as if no admission was hitherto made; and that Exhibit P17 in the instant case was executed before the commencement of the instant suit.

Learned senior counsel for the Respondent further submitted that on the

strength of the decision in M. G. M. LTD Vs. NSP LTD (Supra), paragraph 21 of the Appellant?s Amended Reply at pages 241 of the Records of Appeal goes to no issue; and that the Supreme Court affirmed the decision of this Court in the said case which is to the effect that the admission of the Appellant therein alone was enough to establish the debt claimed despite the fact that the Statement of Account was discountenanced by the trial Court in that case. The learned Senior Counsel referred to CAPPA & D?ALBERTO LTD Vs. DEJI AKINTILO [2003] 4 SC (Pt. II) Pg. 1 and submitted that the case of M. G. M. LTD Vs. NSP LTD (Supra) clearly justifies the approach by the learned trial Judge in giving Judgment to the Respondent based on the clear admission in Exhibit P17 even after discountenancing Exhibit D10 ? the Bank Statement of Account.

Learned senior counsel urged this Court to discountenance the Appellants contention that because the sum admitted by the Appellants was rejected by the Respondents, then the lower Court was wrong to have held the Appellants liable on the said sum. The learned Senior Counsel referred to paragraphs 2 (aa) of the

4th Amended Statement of Defense and Counter-Claim by the Respondent at pages 254 of the Records of Appeal and contended that the basis for the initial refusal by the Respondent of the said sum of N30 Million was because it was extremely small compared to the actual indebtedness of the Appellants. Counsel referred to EKPENYONG & 3 ORS Vs. NYONG & 6 ORS [1975] 2 SC Pg. 65 at 74, Para. 10 to submit that the lower Court has jurisdiction to award less than what was claimed; and that based on the evidence before it, the lower Court was right to have awarded the sum of N30 Million in favour of the Respondent. Learned Senior Counsel further submitted that one of the reliefs sought by the Respondent was for other applicable reliefs as may be just in the circumstances of this suit; and that the Appellants have not shown that the Judgment of the lower Court was unjust in the given circumstances. Learned senior counsel further submitted that the findings of the learned trial Judge with respect to the testimony of PW1 and Exhibit P4 were not appealed against by the Appellants; and that there was no denial of indebtedness by the Appellants.

Learned Senior

Counsel further referred to paragraph 2(f) of the Respondent?s 4th Amended Statement of Defense and Counter-Claim at page 248 of the Records of Appeal and paragraph 3(iii) of the Amended Reply to Defense to Counter-Claim at page 171 of the Records of Appeal to contend that the Respondent clearly pleaded that the Guarantee executed by the 2nd Appellant was an unlimited/continuing guarantee. Learned Senior Counsel further argued that the said Exhibit D24 stated clearly and unquestionably that the guarantee executed by the 2nd Appellant was a continuing guarantee.?The learned Senior Counsel submitted that from the plain contents of Exhibit D1, dated 23rd of March, 1998 at pages 813 ? 814 of the Records of Appeal; it is obvious that what was granted to the 1st Appellant in 1998 was not a fresh facility but a renewal and/or restructuring of an existing facility; and it is therefore clear that the Appellants were debtors to the Respondent as at 1996 when Exhibit D24 was executed by the 2nd Appellant and beyond 1996 which makes the continuing guarantee relevant.

?Learned senior counsel further argued that in 1996 when the 2nd Appellant executed

Exhibit D24, it was in the contemplation of the parties that the 2nd Appellant as guarantor executed same to cover present and future facilities to be offered to the 1st Appellant; and that Exhibit D24 also covered any sum admitted or to be admitted as debt by the 1st Appellant which is owed to the Respondent. The learned Senior Counsel referred to paragraphs 2 and 6 of the said Exhibit D24 at pages 912 ? 915 of the Records of Appeal to submit that the decision of the lower Court on the liability of the 2nd Appellant is well grounded in Exhibit D24. Learned Senior Counsel relied on OGUNDELE & ANOR Vs. AGIRI & ANOR [2009] 12 SC (Pt. 1) Pg. 135 at 153-154 to submit that the 2nd Appellant never disputed the signature on Exhibit D24; that the contents of the said Exhibit D24 speak for itself; and that the Appellants cannot by their pleadings and brief of argument amend the contents of Exhibit D24. Learned silk urged this Court to discountenance the submissions of the Appellants with respect to the liability of the 2nd Appellant.

With respect to the pre-judgment interest of 15.5% awarded in favour of the Respondent; learned senior Counsel for the

Respondent submitted that the Appellants never denied the entitlement of the Respondent to interest beyond the 2nd of February, 2004; and that facts not denied are deemed admitted. It was further argued by the learned Senior Counsel for the Respondent that the Appellants, having admitted the facts as to the entitlement of the Respondent to interest in their pleadings cannot now turn round in their Brief of Argument to take a different position. Learned senior counsel submitted that all the arguments of the Appellants regarding the rates of interest and the alleged expiry date surfaced on appeal for the first time; and that the Appellants never joined issues with the Respondent on its entitlement to interest nor limitation as to time as now being alleged. The learned Senior Counsel submitted that this issue and the ground upon which it is predicated constitutes new issues which the Appellants cannot competently raise as they now seek to do without the leave of Court. Learned Senior Counsel then urged this Court to discountenance the submissions of the Appellants in respect of the award of damages.

Learned senior counsel referred to the English case of

PATON Vs. INLAND REVENUE COMMISSIONERS (1938) AC 34 adopted by the Supreme Court in BARCLAYS BANK Vs. ABUBAKAR [1977] 10 SC (Reprint) Pg. 7 at 15-16, Paras. 10 ? 15 and to the findings of the lower Court at page 971 of the Records of Appeal which is to the effect that the Respondent is a bank and as such entitled to interest on any judgment sum awarded in its favour; the learned Senior Counsel argued that the Appellants did not contest this finding in its Notice of Appeal. Learned Counsel referred to STANDARD NIG. ENGINEERING C. LTD Vs. N.B.C.I. [2006] 2-3 SC Pg. 74; PERETU & 4 ORS Vs. GARIGA &4 ORS [2012] 12SC (Pt. II) Pg. 125 and INTERDRILL NIG. LTD & ANOR Vs. UBA PLC [2017] 2-3 SC (Pt. II) Pg. 120 to submit that the findings of the lower Court not appealed against are binding both on the parties and the Appellate Court as in the circumstances of this case. Learned senior counsel argued that the case of UBA PLC Vs. LAWAL (Supra) relied on by the Appellants is inapplicable because the facts are clearly different from the facts of the instant case. The Learned Senior Counsel in conclusion urged this Court to dismiss this appeal with cost.

THE APPELLANTS? REPLY

Learned senior Counsel who filed the Appellants? Reply referred to ANASON FARMS LTD Vs. NAL MERCHANT BANK (Supra) and M. G. M. LTD Vs. NSP LTD (Supra) relied upon by the Respondent and argued that the said authorities are inapplicable to the instant case. The learned senior Counsel further argued with respect to the issue of liability of the 2nd Appellant as Guarantor that it was not the case of the Respondent that the 1998 facility which was the subject of the suit was a renewal of any facility granted in 1996 or at any other date; and that the Respondent did not contend that the 1998 facility was secured against a continuing Guarantee executed by the 2nd Appellant in 1996. The learned Senior Counsel referred to CPC Vs. INEC [2011] 18 NWLR (Pt. 1279) Pg. 493 at 546-547; OMISORE Vs. AREGBESOLA [2015] 15 NWLR (Pt. 1482) Pg. 205 at 323 & 332 and LADOJA Vs. AJIMOBI (SC. 12/2016) delivered on the 15th day of February, 2016 to argue that the Respondent merely dumped Exhibits D1 and D24 on the lower Court without linking same to any pleadings; and that the lower Court ought to have discountenanced the said documents and

not assume partisan responsibility of tying the said Exhibits to the case of the Respondent.

On the issue of interest, learned senior Counsel for the Appellants referred to the Respondent?s Counter-Claim at pages 183 ? 184 of the Records of Appeal to argue that nowhere in the said Counter-Claim did the Respondent plead its entitlement to interest upon expiry of the facility. Learned Senior Counsel further argued that the Respondent merely made a claim for interest at 35% per annum from 31st of December, 2015 until Judgment; that the Appellants in their Defense to the Counter-Claim at pages 245 ? 246 of the Records of Appeal contended that the Counter-Claim is frivolous, vexatious and misconceived; and that it is a case of a blank denial of what was claimed. The learned senior counsel referred to MASKIN FABRICS A.S. Vs. OLAOGUN ENTERPRISES LTD (1999) LPELR-2973 (SC); FERRERO & COMPANY Vs. HENKEL CHEMICALS NIGERIA LTD (2011) LPELR-12 (SC) and FARASCO NIG. LTD Vs. PETERZON ZOCHONIC IND. PLC (2010) LPELR-4142 (CA) to submit that a claim of interest must be properly and specifically pleaded.

With respect to the Respondent?s

contention that the issue of interest was not contested at the lower Court; learned senior Counsel for the Appellant maintained that the Respondent claimed entitlement to interest and that same was equally denied by the Appellants. The learned Senior Counsel further referred to the Final Written Address of the Appellants at pages 313 ? 315 of the Records of Appeal and that of the Respondent at pages 262 ? 287 of the Records of Appeal to submit that the Appellants as well as the Respondent made submissions on the issue of the Respondent?s entitlement to interest and that the trial Judge preferred the arguments of the Respondent and awarded interest in favour of the Respondent as found at pages 946 ? 973 of the Records of Appeal. Learned Senior Counsel referred to DONALD Vs. SALEH [2015] 2 NWLR (Pt. 1444) Pg. 529 at 566 and ADETULA Vs. AKINYOSOYE [2017] 16 NWLR (Pt. 1592) Pg. 492 at 513 to submit that the issue of Respondent?s entitlement to pre-judgment interest cannot be said to be a fresh issue. Learned senior counsel further referred to Ground 6 of the Notice of Appeal and the particulars thereof to submit that it is not correct

that the finding of the lower Court on the Respondent?s entitlement to interest was not challenged in this appeal.

RESOLUTION

I have carefully considered the issues distilled by the Appellants and the Respondent and I am of the opinion that the issues nominated by the Appellants are all encompassing and a determination of these issues will adequately resolve all the issues in controversy between the parties herein one way or the other. The first issue distilled by the Appellants is: ?Whether the Court below was right in entering judgment against the Appellants on the strength of Exhibit P17.” The Appellants? contention that the Appellants authored Exhibit P17 under the erroneous belief that the debit balance on the 1st Appellant?s account as put forward by the Respondent truly and properly reflected the alleged indebtedness of the 1st Appellant; and that the 1st Appellant had no benefit of professional advice that it was the Respondent that was indebted to it before writing Exhibit P17.

The Appellant further submitted that the learned trial Judge was wrong to have held that Exhibit P17 is a conclusive proof of admission

of the 1st Appellant?s indebtedness in the sum of N30, 000,000.00 when the learned trial Judge found that the 1st Appellant?s Statement of Account ? Exhibit D10 was incapable of proving the alleged indebtedness of the 1st Appellant; that the learned trial Judge was wrong to have relied on Exhibit P17 as though same could solely and independently establish the Respondent?s Counter-Claim; and that the Respondent?s Counter-Claim was founded on Exhibit D10 and therefore, the Respondent ought not to have been allowed to rely on the strength of Exhibit P17 tendered by the Appellants. The Appellants further argued that an offer of compromise cannot constitute an admission upon which a Judgment can be sustained; that the learned trial Judge cannot hold that the Respondent who had rejected the offer made by the Appellants cannot turn around and take benefit of same.

The Respondent on its part argued that where a Court is called upon to decide whether or not the content of a letter constitutes an admission, the jurisdiction of such Court is limited only to interpreting the content of such letter; that the accompanying explanations by

the Appellants? counsel is only an attempt to deny the admission made by the Appellants; that the said ?exculpatory circumstances? relied on by the Appellants is not contained in Exhibit P17 and equally inconsistent with contents of the said Exhibit P17; that the Appellants have not in any way contended that Exhibit P17 is ambiguous in its terms; and that it is only where there is ambiguity in Exhibit P17 that the lower Court can resort to ?exculpatory circumstances? to interpret the contents of a letter constituting admission.

The Respondent further argued that the contention by the Appellants that Exhibit 17 constitutes an offer and not an admission is an attempt to take technicality in adjudication too far; that Exhibit P17 in the instant case was executed before the commencement of the instant suit and therefore the Respondent cannot deny same. The Respondent also contended that the basis for the initial refusal of the said sum of N30 Million was because it was extremely small compared to the actual indebtedness of the Appellants; that the lower Court has jurisdiction to award less than what was claimed; and that based

on the evidence before it, the lower Court was right to have awarded the sum of N30 Million in favour of the Respondent; and that the Appellants have not shown that the Judgment of the learned trial Judge was unjust in the given circumstances.

I have carefully read the entire Judgment of the lower Court as contained at pages 946 ? 973 of the Records of Appeal; the portion of the said Judgment being challenged under the issue now under consideration is at page 970 of the Records where the learned trial Judge held inter alia that the Respondent (Defendant/Counter-Claimant at the lower Court) has proved its claims that the Claimant is indebted to it only to the extent of the sum of N30 Million that was admitted by the Claimant.? Exhibit P17 which was admitted and relied upon by the trial Court in arriving at its conclusion is contained at pages 756 ? 759 of the Records of Appeal. The said Exhibit P17, in my opinion, is clear and unequivocal as to the Appellants admission of indebtedness. Therein, at page 757, 758 and 759 of the Records of Appeal, the Appellants stated inter alia that:

First as a client who

had enjoyed your support in many ways in the past and more so as a debtor now; we had no choice as a debtor to ignore your letters?

?We therefore plead with the Bank to accept N30, 000, 000.00 as full and final settlement of the amount outstanding?

?We are confident that we shall be able to meet this repayment schedule and we shall do our best to actualize this repayment arrangement.?

The Appellant is not denying the authorship of Exhibit P17; therefore, from the foregoing, it is undoubtedly settled that the Appellants admitted indebtedness to the Respondent. In AKANINWO Vs. NSIRIM (2008) 9 NWLR (Pt. 1093) 439; (2008) LPELR-321 (SC) Pg. 50, Para. A, the Supreme Court of Nigeria per NIKI TOBI, JSC (of blessed memory) held that: ?An admission of debt is a solemn declaration of indebtedness to the plaintiff in the sum admitted.? See also BAGOBIRI Vs. UNITY BANK PLC (2016) LPELR-41161 (CA) Pg. 22-23, Para. F ? B and THADANI & ANOR Vs. NATIONAL BANK OF NIGERIA & ANOR (1972) 1 SC (Reprint) 75; (1972) LPELR-SC.63/1969 where COKER, JSC said on the issue of admission of indebtedness that:

?It is the duty of a Court called upon to decide such an issue to study carefully the document on which reliance is placed by the defendant and ascertain as best as it can whether the document by its contents does recognize the existence of a right of recourse against himself. It is not necessary that the document should state the precise figure of indebtedness. In Ajike v. Cardoso & Anor. (1939) WACA 134, it was observed that the Court would then turn to the letter written with a view of determining whether, according to the ordinary and natural meaning of the letter, it contains either an expressed promise to pay or a clear acknowledgment of the debt and, in the latter case, whether the acknowledgment is coupled with words which prevent the implication of an unconditional promise.?

In the instant case, with respect to being indebted to the Respondent, the Plaintiff by Exhibit P17 clearly admitted indebtedness and pleaded for the acceptance of N30, 000,000.00 as full and final settlement of the debt assuring to pay the offered sum to the Respondent. By this admission, the Appellants are liable, and the lower Court cannot be faulted on

this finding. It is settled law that an Appellate Court will not interfere with the exercise of discretion and findings of the lower Court except where same is shown to be perverse and therefore occasioned a miscarriage of justice or was the decision was concreted on misapprehension of the facts, for instance, where the lower Court acted under a misconception of the law or under a misapprehension of facts or took into consideration extraneous matters. See: AKILU Vs. FAWEHINMI (No. 2) [1989] NWLR (Pt. 102) Pg. 122; (1989) LPELR-339 (SC) Pg. 65-71, Paras. A ? A; OSHE Vs. OKIN BISQUITS LTD & ANOR [2010] 11 NWLR (Pt. 1206) 482; (2010) LPELR-2798 (SC) Pg. 20, Paras. B ? C and FALEYE & ORS Vs. DADA & ORS (2016) LPELR-40297 (SC) Pg. 33-34, Paras. E ? C where the Supreme Court, MUHAMMAD, JSC held that:

trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice

See: also ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD. [1992] NWLR (Pt. 247) Pg. 319; (1992) LPELR-511 (SC) Pg. 20-21, Paras. G ? A and OLATUBOSUN Vs. TEXACO NIG. PLC (2012) LPELR-7805 (SC) Pg. 18, Paras. C ? D where it was held that an appellate Court like ours will not interfere with the exercise of discretion of the Court below merely because this Court would have acted differently. ?this Court will only interfere where the discretion exercised is manifestly wrong, arbitrary, reckless and injudicious.?

Before I proceed to the next issue, let me address the Appellants? contention that the Respondent?s Counter-Claim was founded on Exhibit D10 and therefore the Respondent ought not to have been allowed to rely on the strength of Exhibit P17 tendered by the Appellants. This argument is unsustainable in law in the face of the clear admission by the Appellants that they were indebted to the Respondent as already shown in Exhibit

P17. The said Exhibit P17 was admitted in evidence and there is no challenge to its admissibility, hence, the Respondents cannot be estopped from relying on same on the ground that it was the Appellants that tendered it when the said Exhibit P17 contains clear and unequivocal admission of the Respondent?s claim. See:FAYEMI & ANOR Vs. ONI & ORS (2010) LPELR-4145 (CA) Pg. 84, Para. C ? E; EGBUTA & ANOR Vs. ELEKWACHI & ORS (2013) LPELR- 20666 (CA) Pg. 51-52, Para. F ? B where this Court held that:

?The law is trite that an admission by a party against is interest is admissible against that person?

See: also PINA Vs. MAI-ANGWA (2018) LPELR-44498 (SC) Pg. 8-12, Para. D ? E; In the circumstances therefore, the Appellants, in my view merely want this Court to set aside the decision of the lower Court with respect to Exhibit P17 without

cogent reasons; the Appellants have failed to establish that the said decision of the lower Court is perverse and/or that the trial Court did not act judicially and judiciously in the exercise of its discretion. In the circumstances therefore, I find no reason to interfere with the findings of the lower Court with respect to Exhibit P17 which was admitted in evidence and contains clear admission of Appellants? indebtedness to the Respondent. In the light of the foregoing therefore, this issue is hereby resolved against the Appellants and in favour of the Respondent.

The second issue nominated by the Appellant in this appeal is: ?Is the decision of the Court below adjudging the Appellants liable to pay pre-judgment interest on the principal judgment sum of N30 Million, supportable by law and available evidence The Appellants? contention under this issue is that there is nowhere in the purported admission in Exhibit P17 where the Appellants admitted any liability on interest; that the award of interest made by the learned trial Judge was influenced by the misconception that the judgment was based on the debit balance owing and due

to the 1st Appellant?s Statement of Account with the Respondent; that the claim for interest made in the Counter-Claim was not predicated on the sum allegedly admitted but upon the debt claimed to be due on the Appellant?s account as shown in Exhibit D10 which was found by the learned trial Judge as not established; and that there is no iota of evidence of admission by the Appellant with respect to the interest awarded by the learned trial Judge.

The Appellant further argued that the said award must meet the requirements of the law; that the Judgment of the lower Court awarding interest at the rate of 15.5% till judgment contradicts the clear agreement in Exhibit D8 which formed the basis of the award of interest by the learned trial Judge; that the terms and conditions regulating the loan facility in Exhibit D8 including the loan facility ceased to apply from 2nd of February, 2004 or alternatively, 20th of December, 2004 being the terminal date for repayment as stated in Exhibit P9; that the Respondent did not claim damages for breach arising from the Appellants? failure to pay the alleged outstanding debt upon maturity of debt in

Exhibit D8 or Exhibit P9; and that what the Respondent would have been entitled to after the debt purportedly became due upon expiry of Exhibit D8 and alternatively the repayment date stated in Exhibit P9 is damages for breach of contract to repay the loan and such damages must be specifically pleaded and proved.

The Respondent on the other hand contended that the Appellants never denied the entitlement of the Respondent to interest beyond the 2nd of February, 2004; that facts not denied are deemed admitted; that having admitted the facts as to the entitlement of the Respondent to interest in their pleadings cannot now turn round in their Brief of Argument to take a different position; that the Appellants never joined issues with the Respondent on its entitlement to interest nor limitation as to time as now being alleged; that this issue and the ground upon which it is predicated constitutes new issues which the Appellants cannot competently raise as they now seek to do without the leave of Court. It was further argued that Respondent is a bank and as such entitled to interest on any judgment sum awarded in its favour; and that the findings of the lower

Court not appealed against are binding both on the parties and the Appellate Court as in the circumstances of this case.

The learned trial Judge upon holding that the Appellants were indebted to the Respondent only to the extent of the sum of N30,000.000.00 that was admitted by the Appellants proceeded to consider the issue of interest and came to the conclusion that:

The relationship between the Defendant and the Claimant is one of banker and customer. It is well settled that banks are usually entitled to charge interest on sums lent out by them. It was also stated in Exhibit D1 ? D9 that interest was to be paid at the rates stated on the said letters? None of the said letters showing review of interest rates showed that the interest had been reviewed to 38% per annum. The rate of interest in Exhibit D8 that the Court can award as it was shown. The Court will therefore award interest on the sum of N30 Million at the rate of 15.5% per annum from 31st of December until judgment and thereafter at the rate of 10% per annum till final liquidation thereof.?

The Appellants have not challenged the finding of the lower

Court with respect to the interest rate of 10% per annum on the Judgment sum; this Court will therefore not interfere with that decision. See the decision of the Supreme Court in ONAFOWOKAN & ORS Vs. WEMA BANK PLC & ORS (2011) LPELR-2665 (SC) Pg. 41, Paras. B ? G, where it was held that: ?It is trite that the finding and order of lower Court not appealed against remain valid and subsisting See also STEPHEN OGBEBOR & SONS SAWMILL LIMITED Vs. CHIEF ADUN(2014) LPELR-22764 (CA) Pg. 23, Paras. C ? F; SNIG NIGERIA LIMITED Vs. WEMA BANK PLC (2016) LPELR-40576 (CA) Pg. 20-21, Paras. C ? C and GUDUSU Vs. ABUBAKAR (2017) LPELR-43007 (CA) Pg. 20, Paras. D ? F.

With respect to the pre-judgment interest of 15.5% awarded by the learned trial Judge on the sum of N30,000,000.00; the decision of the lower Court in my opinion runs contrary to the true position of the law as affirmed by this Court and the Supreme Court of Nigeria in a plethora of cases. In AFRIBANK (NIG.) PLC Vs. AKWARA (2006) 5 NWLR (Pt. 974) 619; (2006) LPELR-199 (SC) Pg. 43, Paras. D ? G the Supreme Court of Nigeria per OGBUAGU, JSC held

that: ?It is now settled, that except where parties have agreed on payment of interest, it is not right to award interest pre-dating the date of judgment? There must be express agreement that the interest will be chargedSee also the latter decision in DIAMOND BANK LTD Vs. PARTNERSHIP INVESTMENT CO. LTD & ANOR (2009) 18 NWLR (Pt. 1172) 67 SC; (2009) LPELR-939 (SC) Pg. 29, Paras. D ? G.

It therefore follows that the prejudgment interest of 15.5% awarded on the sum of N30,000.000.00 that was admitted by the Appellants and awarded in favour of the Respondent ought to flow from the admission as argued by the Appellants. Exhibit P17 established that the Appellants admitted indebtedness to the Appellants; the fact that the Respondent failed to establish the amount of debt owed by the Appellants is not relevant; what is relevant; and which formed the basis of the award of the sum of N30,000.000.00 in favour of the Respondent is that the Appellants in their admission offered to pay the said the sum of N30, 000.000.00 as full and final settlement of their debt. In the circumstance therefore, the learned trial Judge cannot go

outside Exhibit P17 in awarding prejudgment interest to the Respondent; and in the said Exhibit P17 what the Appellant offered was only the sum of N30,000.000.00 in full and final settlement of their indebtedness. Therefore, in my respectful view, the learned trial Judge fell into grave error in placing reliance on Exhibit D8 to award prejudgment interest rate in favour of the Respondent when the judgment sum was awarded on the admission and offer in Exhibit P17 as full and final settlement of the Appellants? indebtedness.

I am mindful of the recent decision of the Supreme Court in NPA Vs. AMINU IBRAHIM CO. & ANOR (2018) LPELR-44464 (SC) Pg. 39-40, Paras. C ? B where SANUSI, JSC said that:

?The law is very settled that before a pre-judgment interest can justifiably be awarded, a plaintiff often pleads that he is entitled to such interest and also that where he so pleads it, he must prove the basis of his entitlement of same by showing that it was supported either by statute or contract agreement between the parties or based on mercantile custom or on the principle of equity. Such claim of interest is normally pleaded and

proved? It is however a valid law that a Court can still grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in the instant case, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his judgment.?

In the same decision, PETER-ODILI, JSC held that:

?On the matter of pre-judgment interest, the law is clear that such interest is awarded where there is an agreement for repayment of interest, in which case such a claim as such must be pleaded and proved as it would not do to just state a claim for pre-proof of same. However, a Court can grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party even where such a party did not plead or adduce evidence to prove it as such interests naturally accrue from the failure to pay the sum involved over a period of time thereby depriving a party from the use and

enjoyment of the sum involved. That in my humble view is substantial justice.?

From the foregoing therefore, there is no doubt that the law remains that the condition precedent to the award of pre-judgment interest is that there must be an agreement for repayment of interest; and in such case, the pre-judgment interest to be awarded must have been pleaded and proved. The law was however extended in the interest of justice to the effect that ?a Court can still grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such a party did not plead or adduce evidence in proof of such claim. Such interest, like in the instant case, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his judgment.? Therefore, the Appellants contention in their Reply Brief that there is nowhere in the Counter-Claim where the Respondent itself pleaded its entitlement to interest upon expiry of the facility; and that the Respondent merely argued made a claim

for interest at 35% per annum from 31st of December, 2015 until Judgment is of no consequence having regard to the decision in NPA Vs. AMINU IBRAHIM CO. & ANOR (Supra).

However, in my view, the instant case does not fall under the exceptions to the general rule as set out by the Supreme Court in NPA Vs. AMINU IBRAHIM CO. & ANOR (Supra). In the instant case, the sum awarded to the Respondent was not the sum claimed by the Respondents in their Counter-Claim; the Respondent?s would not have been awarded any sum if not for the admission of indebtedness by the Appellants. The learned trial Judge clearly concluded at page 969 of the Records of Appeal that: ?Exhibit D10 cannot suffice to show the amount claimed.? The award of the sum of N30,000.000.00 to the Respondent was based on Exhibit P17; and as I have earlier found, there is no agreement whatsoever in the said Exhibit P17 with respect to the payment of any interest rate as per Exhibit P17 wherein the Appellant admitted indebtedness and only offered the sum of N30,000.000.00 in full and final settlement of their indebtedness.

Therefore, there is no basis whatsoever, for

the trial Judge to award pre-judgment interest rate on the rate agreed in Exhibit D8 to award prejudgment interest rate in favour of the Respondent when the judgment sum was awarded on the admission and offer in Exhibit P17 as full and final settlement of the Appellants? indebtedness. In the circumstances therefore, the decision and reasoning of the lower Court with respect to the prejudgment interest rate at 15.5% is hereby set aside by me. For clarity, I have stated earlier that the Appellants did not challenge the award of the interest at 10% per annum till final liquidation of the judgment sum awarded. That decision is hereby affirmed. In the light of the foregoing, this issue is hereby resolved in favour of the Appellants and against the Respondent.

The third issue in this appeal is that: ?Having regards to the joinder of issues and available evidence, is the Court below right in its decision that Exhibit D24 created a continuing guarantee and on the basis of which the 2nd Appellant was held liable?” The Appellants? submission on this issue is that the 2nd Appellant contended before the lower Court that he did not execute any

guarantee in respect of the loans which were the subject matter of the Respondent?s Counter-Claim; that Exhibit D24 is a Guarantee executed by the 2nd Appellant in 1996 in favour of the Bank but in respect of an entirely independent and distinct transaction different from the loan transactions forming the subject matter of the Respondent?s Counter-Claim which commenced in 1998; and that the conclusion reached by the learned trial Judge that Exhibit D24 created a continuing guarantee in favour of the Respondent does not stem from the case presented by the Respondent.

The Appellant further argued that the Respondent never pleaded or led evidence to the effect that the Guarantee which was executed in 1996 before the commencement of the facilities forming the subject matter of its Counter-Claim was a continuing guarantee which applied to the facilities granted in 1998; that the case presented by the Respondent before the lower Court was that with respect to the facility granted in 1998, the 2nd Appellant executed a Personal Guarantee; that the Respondent knew that Exhibit D24 was executed in 1996 and did not plead that the said Guarantee was a

continuing Guarantee and thereby extended to the facilities granted in 1998; that it was not the duty of the learned trial Judge to help the Respondent build its case; and that there is nowhere in Exhibits D1 ? D8 where it was stated that any existing Guarantee would serve as security for the facilities.

The Respondent?s stand on this issue is that the Respondent clearly pleaded that the Guarantee executed by the 2nd Appellant was an unlimited/continuing guarantee; that the said Exhibit D24 stated clearly and unquestionably that the guarantee executed by the 2nd Appellant was a continuing guarantee; that it is obvious that what was granted to the 1st Appellant in 1998 was not a fresh facility but a renewal and/or restructuring of an existing facility; that the Appellants were debtors to the Respondent as at 1996 when Exhibit D24 was executed by the 2nd Appellant and also beyond 1996 which makes the continuing guarantee relevant; that it was in the contemplation of the parties that the 2nd Appellant as guarantor executed same to cover present and future facilities to be offered to the 1st Appellant; and that Exhibit D24 also covered any sum

admitted or to be admitted as debt by the 1st Appellant which is owed to the Respondent. The Respondent further submitted that the 2nd Appellant never disputed the signature on Exhibit D24; that the content of the said Exhibit D24 speaks for itself; and that the Appellants cannot by their pleadings and brief of argument amend the contents of Exhibit D24. Learned Senior Counsel urged this Court to discountenance the submissions of the Appellants with respect to the liability of the 2nd Appellant.

The finding of the learned trial Judge on this issue is contained at page 972 of the Records of Appeal; the learned trial Judge found that:

?As regards the 2nd Defendant to Counterclaim, Exhibit D24 was executed by him and same is dated 19th July 1996. Same was executed by him and same was executed before the first facility was granted in 1998 but the contents show that it is a continuing guarantee?

Exhibit D24 created a continuing guarantee in favour of the Defendant for facilities for sums granted to the Claimants at the time of execution of Exhibit D24 or thereafter. So long as same was in place when the facilities started to be granted

in 1998, then it is my view that the 2nd Defendant to counterclaim would be liable to the Defendant under Exhibit D24.?

From the foregoing findings of the learned trial Judge and as clearly seen from the contentions of the parties herein, there is no doubt as to the execution of Exhibit D24 by the 2nd Appellant in favour of the Respondent; this finding and/or fact is neither challenged nor denied. Also, the fact that the said Exhibit D24 is a continuing guarantee as found by the learned trial Judge is clearly established by paragraph 2 of the said Exhibit D24 at page 912 of the Records of Appeal where it is stated thus:

?This Guarantee is to be a continuing security for the whole amount now due or owing to you or which may hereafter at any time become due or owing to you as aforesaid by the principal until the expiration of three months after the receipt by you from the undersigned or any one or more of them or their respective executors or administrators of notice in writing to discontinue it (but notwithstanding the discontinuance as to one or more of the undersigned the Guarantee is to remains a continuing Security as to the other or

others) in respect of all and every sum or sums of money which are now or shall at any time be owing in addition to such further sum for interest thereon and other banking charges in respect thereof and for costs and expenses as shall accrue to you within six months before or at any time after the date of demand by you upon the undersigned or any one or more of the undersigned for payment.?

The Appellants contention seems to be that the Respondent did not plead that the Exhibit D24 is a continuing Guarantee created in 1996 and that same applies to the facility granted in 1998. The Appellants even argued in their Reply Brief that the Respondent merely dumped Exhibits D1 and D24 on the lower Court without linking same to any pleadings; and that the lower Court ought to have discountenanced the said documents and not assume partisan responsibility of tying the said Exhibits to the Respondent?s case. However, contrary to the Appellants? submissions, and as rightly submitted by the Respondent, paragraph 2(f) of the Respondent?s 4th Amended Statement of Defense and Counter-Claim at page 248 of the Records of Appeal and paragraph 3(iii)

of the Amended Reply to Defense to Counter-Claim at page 171 of the Records of Appeal to contend that the Respondent clearly pleaded that the Guarantee executed by the 2nd Appellant shows that the Respondent did not just dump Exhibit D24 on the trial Court as contended Appellants, but that the Respondent pleaded that the facility was granted on ?unlimited personal guarantee? executed by the 2nd Appellant.

The law is trite that an appellate Court will normally not interfere with the findings of fact and evaluation of evidence by the trial Court unless it is shown that the trial Court failed to properly evaluate the evidence or made a wrongful approach to the evidence placed before it. See the decision of this Court in UNION HOMES SAVINGS & LOANS PLC Vs. OLUMIDE (2018) LPELR-45572 (CA) Pg. 27-29, Para. A ? D where I considered the evaluation of documentary evidence as in the instant case and restated the law in the following words:

?It is within the province of the trial Court to evaluate evidence and ascribe probative value to same. The Court of Appeal and the Supreme Court will only interfere where the Court or tribunal

fails to discharge that duty and the failure has occasioned a miscarriage of justice, or the conclusion reached by the lower Court is altogether perverse having regard to the evidence?

Where there is proper and unquestionable evaluation of evidence by the lower Court, the Court of Appeal has no business interfering with the conclusion reached by the trial Court.”

See: also TUKUR Vs. UBA & ORS (2012) LPELR-9337 (SC), Pg. 45, Paras. B ? E; UBA PLC Vs. J.I. EFEMINI & SONS (2018) LPELR-44150 (CA), Pg. 19-20, Paras. C ? C and MAMUDA Vs. STATE (2019) LPELR-46343 (SC), Pg. 15-16, Paras. F ? B where MUHAMMAD JSC held that: ?The task of evaluating evidence and ascribing probative value to it is the primary duty of the trial Court. The lower Court and indeed this Court, unlike the trial Court, are handicapped when evaluation of evidence, as in this case, is made an issue

?Therefore, the learned trial Judge was right to have considered and relied upon the said Exhibit D24 which clearly showed that prior to the facility granted in 1998, the 2nd Appellant had created a continuing Guarantee in favour of

the Respondent on behalf of the 1st Appellant. This matter, in my opinion needs be over-dragged. The 2nd Appellant has not denied Exhibit D24; the 1st Appellant has not denied receipt of the facilities; therefore, contentions of the Appellant on this issue are not sustainable and are hereby discountenanced. As held by the Supreme Court in UNION BANK OF NIGERIA PLC Vs. AWMAR PROPERTIES LTD (2018) LPELR-453/2017 (SC), Pg. 48-49, Paras. E ? B, ?There is no basis for interference by this Court.? This issue is therefore resolved against the Appellants and in favour of the Respondent.

Having resolved issues No. 1 and 3 in favour of the Respondent and issue No. 2 in favour of the Appellants; this appeal succeeds, the only modification is that the learned trial Judge ought not to have granted the pre-judgment interest of 15.5% on the sum of N30,000,000.00 awarded in favour of the Respondent pursuant to the admission in Exhibit P17 is set aside. Apart from the order setting aside the pre-judgment interest awarded by the lower Court to the Respondent, the Judgment of the High Court of Lagos State delivered by K. A. JOSE, J. on the 17th day of

December, 2015 in Suit No: LD/405/2005 is affirmed.

Parties in this appeal shall bear their respective costs.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead just delivered by my learned brother TIJJANI ABUBAKAR JCA. I adopt the judgment as mine with nothing useful to add.

TOBI EBIOWEI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, TIJJANI ABUBAKAR. JCA. I agree with the judgment and I have nothing to add.

Appearances:

Adebowale Kamoru with him, Efemona Balogun (Mrs.)For Appellant(s)

Layi Babatunde, SAN with him, J. O. AkoladeFor Respondent(s)

Appearances

Adebowale Kamoru with him, Efemona Balogun (Mrs.)For Appellant

AND

Layi Babatunde, SAN with him, J. O. AkoladeFor Respondent

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