UNION BANK OF NIGERIA PLC v. CHIEF OROK IRONBAR ESQ.
(2010)LCN/3602(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of March, 2010
CA/C/127/2008
RATIO
WORDS AND PHRASES: MEANING OF AUCTION
Auction sale has been defined as:
“A manner of selling or letting property by bids at a place open to the general public, usually to the highest bidder by public competition. The prices which the public are asked to pay are the highest which those who bid can be tempted to offer by the skill and tact of the auctioneer under the excitement of open competition.”
See Okonkwo V. CCB (Nig) (2003)8 NWLR (Pt. 822)352.
Auction is:
“A sale of property in public conducted through biddings before an officer appointed by Court, that is a public sale at which goods, chattels or properties are sold by Auctioneers and made over to the highest bidders.”
See Academic’s Dictionary page 33. PER NWALI SYLVESTER NGWUTA, J.C.A.
WORDS AND PHRASES: MEANING OF INTEREST
I will start with a definition of the term “Interest” and what explanation or definition of the term can be better than the one provided by the Apex Court:
“In financial transaction the word interest connotes a compensation allowed by law or fixed by the parties for the use or forebearance of f borrowed money In other words it is the cost of using credit or fund of another…”
See Veepee Industry Ltd V. Coco Industry Ltd (2008) 13 NWLR (Pt 1105) page 486 at 490. See also NDIC V. ECOBANK (Nig) Ltd (2003)11 NWLR (Pt 830) 93 at 107 (CA). Where no interest is fixed by law or the parties it is to be implied by a custom to that effect in the transaction between the parties. See Barclays Bank V. Abubakar (1977) 10 SC 13 at 23. Aforka V. ACB Ltd (1994) 3 NWLR (Pt 331) 217 at 224-225 PER NWALI SYLVESTER NGWUTA, J.C.A.
CONTRACT: WHETHER A PUBLIC NOTICE OF A SALE BY AUCTION IS AN OFFER
In a sale by auction, the public notice to that effect is not an offer to any bidder at the sale. The notice of auction, like the display of goods for sale in a self-service store is an invitation to treat, an invitation to the general public to come forward and offer to buy the goods at the price on the tag on the goods in case of a self-service store or at the price or bid at which the hammer falls in auction sale. See Payne v. Can (1789) 3 Term Rep. 148, Pharmaceutical Society of Great Britain v. Books Cash Chemists Ltd. (1952) 2 QB 795 and Fisher v. Bell (1961) 1 QB 394 wherein it was stated that:
“It is clear that according to the ordinary law of contract, the display of an article with the price on it in a shop window, is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.”
A notice of sale of property by auction, though without a price tag on the property is no less an invitation to treat, or a call for offers. A bid made at auction sale is not acceptance of offer which has not been made at that stage. It is the bidder who makes the offer and the Auctioneer signifies acceptance of the offer by the use of his hammer but subject to any condition precedent to a binding contract which the seller may impose. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
KUMAI B. AKAAHS Justice of The Court of Appeal of Nigeria
NWALI S. NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC – Appellant(s)
AND
CHIEF OROK IRONBAR ESQ. – Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): There were three defendants in the suit but the 2nd and 3rd defendants reported dead were struck off the case. At the instance of the then 1st Defendant the 2nd Defendant as its agent, published in a National daily, the following notice of sale by public auction:
“On the instruction of the Union Bank of Nigeria Headquarters No.40 Marina Lagos to sell by public Auction the mortgagors property at 75 Egerton Street Calabar registered as Number 28 at page 28 in volume 194 of the register of deeds, kept at the Lands registry office at Calabar (CRS) the lease and property of Eniang Effiom Offiong used to secure the indebtedness of Nyamata. Enterprises (Nig) Ltd will at the instance of the unpaid mortgagee the UBA(PLC) be sold by public auction on Tuesday 12th December, 1995 at 0800 hrs. Prompt.
This sale is subject to the approval or disapproval of the mortgagee, payment is strictly by Bank draft at the fall of the Auctioneer’s Hammer made payable to the Union bank of Nigeria (Plc). for further detail contact:
Nse Sam M. Ojukwu Licensed Auctioneer Phone: 0821227450.”
The Respondent /Cross-Appellant took part in the auction through his agent, the 3rd Defendant who did not disclose that he acted for a principal. The Auctioneers Hammer fell at the 3rd defendant’s bid for N800 000. However the Appellant/Cross-Respondent did not approve for the sale but disapproved same and refused the demand of the Respondent/Cross-Appellant to hand over the property to him. An attempt was made at amicable segment of the dispute arose from the Appellant/Cross-Respondent’s refusal to release the mortgaged property to the Respondent/Cross-Appellant. The attempt failed where upon the Respondent/Cross-Appellant approached the High Court of Justice, Cross River State setting at Calabar for redress by way of originating summons. At the instance of the Respondent/Cross-Appellant the Learned Trial Judge Ibok J. ordered pleadings in the matter which then proceeded as if it was commenced by a writ of summons.
In his statement of claim the Respondent/Cross-Appellant, then Plaintiff claimed in paragraph 31 thereof the following reliefs against the Appellant/Cross- Respondent who was the defendant.
(1) “Specific performance compelling the 1st and 2nd Defendants to hand over to the plaintiff the property purchased by public auction being No 75 Egerton Street Calabar registered as No 28 at page 28 in volume 194 of the lands Registry office, Calabar.
(2) Balance of paid sum and interest calculated on the paid sum by Plaintiff’s creditor which latest calculation shall be founded upon at the trial as it is still affracting interest, less the purchase price of N800.000.00.
(3) Compelling the Defendants to hand over to the Plaintiff all rents that have accrued on the property since the sale by auction in December, 1995.
(4) Injunction restraining the 1st and 2nd Defendants, their servants, agents and assigns from disturbing the Plaintiff’s possession and enjoyment of the property.
(5) All necessary documentation to conclude and register the sale to be prepared and costs covered by the 1st and 2nd Defendant.”
At the stage of pleading the names of the 2nd and 3rd Defendants had not been struck off the suit. The Appellant/Cross-Respondent, then 1st defendant, in its amended statement of defence, denied in its entirety the claim against it, indicating, inter alia, that it would contend at the trial that the entire auction transaction was by reason of the established illegalities and irregularities flawed and unenforceable by either the Plaintiff or the 3rd defendant. It would contend further that the Respondent as Plaintiff lacked locus standi in the suit and that the action is incompetent. There was a reply filed by the Plaintiff Respondent. There is no indication that the 2nd and 3rd defendants whose names had not been struck off the suit then filed any statement of defence jointly or separately.
The trial proceeded and at the conclusion the learned trial Judge, in a reserved Judgment concluded as follows:
“Accordingly, upon this case coming before this Court and upon the evidence of the parties and finding the 1st and 2nd defendant jointly and severally liable in respect of the plaintiff’s claim for the sum of N600.00 (Six Thousand naira only) which sum was paid by the Plaintiff’s agent to the Auctioneer 2nd defendant as fees and sundry charges in respect of the auction sale of No 75 Egerton Street, Calabar on 12/12/95 held on behalf of the 1st defendant, it is ordered:
(a) That the 1st defendant refunds to the Plaintiff the main sum of N600.000 (Six hundred Thousand Naira) and in addition pay to the Plaintiff at compound interest of 20% per Annum with effect from 12/12/1995 till the date of the Judgment as per the following details.”
This was followed by the Court’s Computation of compound interest of 20% per annum on the said N600.000.00 from 12/12/1995 to the date of judgment 31/3/08 resulting to a total of N5,617,143.28. The Court continued:
“that thereafter, the 1st defendant should pay to the Plaintiff at simple interest of 10% (Ten percent) per annum on the sum of N5,617,143.28 (Five Million, Six Hundred and Seventeen Thousand, One Hundred and Forty Three Naira Twenty Eight Kobo) only until the Judgment debt is liquidated”
(b) That the sum of N800,000.00 (Eight Hundred Thousand Naira (only paid as purchase price for the property be also refunded to the Plaintiff.
(c) That exhibits tendered be returned to the respective owners after the expiration of the statutory period allowed for appeal. I make no order as to costs.” (See pages 93 to 95 of the Records)
Both parties were aggrieved. The Appellant appealed on three grounds against the part of the decision relating to payment and refund of N600.000 with 20% compound interest and therefore 10% interest on the Judgment sum till it is liquidated. See pages 111 to 115 of the Records. On his part the Respondent appealed against the part of the Judgment relating to the auction sale on three grounds also. See pages 34 (150) to 35 (151) of the Additional Records.
From the three grounds of appeal filed Learned Counsel for the Appellant. Imo Inyang Esq. distilled the following two issues for the Court to resolve in his brief dated 31/3/2009 and filed on
1/4/2009.
1. Whether the Learned trial Judge was right when he held the Defendant/Appellant liable for the illegal sum of N600.000.00 (Six Hundred Thousand Naira) allegedly paid to the 2nd defendant (Auctioneer).
2. Whether the learned trial judge was right in applying compound interest of 20% on the said sum of N600.000.00 and arriving at the sum of N5,617,143.28 (Five million, Six Hundred and Seventeen Thousand One hundred and Forty -Three Naira, Twenty -Eight Kobo) which he awarded to the Respondent.
In the Respondent’s brief incorporating his argument on his Cross-appeal, setted by the Respondent/Cross-Appellant Chief Orok I. Ironbar himself, dated 8/4/2009 and filed on 14/4/2009 he adopted the two issues framed in the Appellant’s brief though expunging the words, “illegal” and allegedly” therefrom.
In the Cross-appeal he isolated the following two issues for determination:
1. Whether the auction sale was concluded and the Cross-Appellant entitled to specific performance of the contract.
2. Whether the trial Court in the face of the evidence including documentary was right to calculate the interest due to the Cross-Appellant at only 20% and only over the sum of N600.000.00.”
Issues one and two were framed for grounds 1 and 2, and ground 3 of the Cross-appeal respectively. Appellant/Cross Respondent filed a reply brief in which was incorporated Cross-Respondent’s brief of argument.
On the other hand the Respondent/Cross-Appellant filed a notice of objection and a reply to the Appellant/Cross-Respondent’s brief Learned Counsel for the Appellant impugned the judgment of the Court below for holding the Appellant liable to the claim for refund of the N600.000.00 allegedly paid by the Respondent through his agent (3rd Defendant) to the 2nd Defendant the auctioneer and agent of the Respondent. He referred to the notice of the auction Exhibit 14 on page 96 of the records and to the terms of the auction sale and the mode of payment by the purchaser. Learned Counsel emphasized that:
“This sale is subject to the approval or disapproval of the mortgagee payment is strictly by Bank draft, at the fall of the Auctioneers hammer made payable to the Union Bank of Nigeria Plc.”
He argued that while the sum of N800.000 (purchase price) was paid in the mode demanded in the notice Exh.14, the N600.000 was paid to the Auctioneer by cash, contrary to the terms of Exh.14 regarding payment of the purchase price. He said that the Respondent, a lawyer admitted seeing and reading Exh.14 as well as Exh.SA6 attached to the late 3rd Defendant’s Affidavit of 21/2/98 and Exh.15, a letter addressed by the deceased 3rd Defendant who was his agent to the Assistant inspector General of police dated 1/2/97 Counsel reproduced the concluding part of the letter to the effect that the N600.000 was paid for a purpose outside the terms of Exh.14 Counsel argued that the letter Exh.15 has demonstrated that the claim by the Respondent that the N600.000 was payment of professional fees and sundry charges demanded by the Auctioneer is false, adding that it was an error for the Learned trial judge to hold that the phrase – for further details contact…” can be constructed to warrant the payment of the N600.000. He said that the evidence on record does not support such construction of the phrase in Exh.14. He urged the Court to infer from the evidence that the Respondent paid the sum of N600.000 as an inducement for the Auctioneer to let the hammer fall at the sum of N800.000.00 for the mortgaged property. Learned Counsel contended that the failure of the trial Judge to evaluate and ascribe probative value to the evidence before reaching a Conclusion on the payment of the N600.000.00 was perverse.
He cited the case of Nakyauta V. Thomas (1975) 5 SC 1 in support of his argument that a principal is only bound in law for the act of his agent which he authorised and which is not illegal on the face of it. He referred to the testimony of the PW1 for the evidence that the Appellant did not authorize the payment of N600.000 to its agent for any purpose. He argued that agreement to the something ilegal or against public policy will not found a remedy for a part to the agreement. He relied on Fasel services Ltd V. NPA(2004) All FWLR (Pt 199) P. 1400 and Alao V. ACG (1998) 3 NWLR (Pt 542) 339. Counsel relied on Nichandani Vs Pisheiro (2001) (Pt 48) 1307, Mandilas V. Karabaris Ltd in his argument that a principal generally cannot be liable for the fraud of his agent without proof that he has a guilty mind in respect of the offence and had in deed participated therein. He argued that the 2nd Defendant, in demanding and receiving the sum of N600.00 to facilitate the fall of the hammer at the offer of N800.00, did not act within the scope of his employer contrary to the finding of the Court below. Having regard to the evidence Counsel argued that the Court below erred in finding the Appellant liable to the claim for a refund of the N600.000.00. He urged the Court to resolve issue one agreement the Respondent.
In issue 2 learned Counsel submitted that the award of prejudgment 20% compound interest on the N600.000 computed from December 1995 to 31/3/08 resulting to N5,617,143.28 and post judgment interest on the resultant sum until the debt is liquidated are wrong in law.
Counsel referred to paragraph 31, of the statement of claim and the evidence of the Respondent as D.W.1 and argued that the decision of the Court on the claim for a refund of N600.000.00 has no basis in pleading or evidence before the Court. He contended that it is not the function of the Court to supply evidence or make a case for a party to a suit. He relied on Samaco Enterprises ltd V. New Nigeria Bank Plc (2006) All FWLR (Pt 293) 193 Nwanosike V. John Holt Plc (2006) All FWLR (Pt 301) 1809.
He argued that the Court’s power to grant reliefs is limited by the claim and credible evidence to prove same. He relied on Okoro V. Dakoho (2006) All FWLR (Pt 336) 201 SC.
Learned Counsel argued that the Court below stated the law on pre-judgment interest on the claim for N800.000.00 but contradicted the legal principal in the decision in relation to the claim for N600.000.00 He referred to pages 93 to 94 of the records and contended that the Court fell into error when it embarked on a calculation of the interest.
After a summary of his submission Learned Counsel argued that the Appellant was not liable to the claim and urged the Court to allow the appeal and set aside the Judgment of the Court below.
In his argument in issue one Chief Orok I. Ironbar the Respondent in person relied on Levant’s V. Petrojees, ca(1999) 4 SCN3 121 at 128 in his submission that the act of the 2nd Defendant who was the agent of the Appellant is binding on his principal provided the agent acted in the Course of his employment.
He relied also on Osigwe V. Pspls Management Consortium Ltd (2009) 3 NWLR (Pt 1128)178.
Counsel referred to page 105 of the record for the receipt for the payment made to the 2nd Respondent for:
“His professional fee and sundry charges”
as well as his own testimony at page 22 of the records. He said the total sum paid to the Auctioneer for which he issued a receipt was N1.4m out of which a Bank draft of N800.000.00 was made in favour of the Bank by the 3rd Defendant on the instruction of the agent of the Bank. Counsel said his testimony went unchallenged as the Appellant did not call any witness involved in the auction to testify for which he relied on S.149 (d) of the Evidence Act. He argued that there being no evidence to contradict his testimony the Court must consider it proved or established with respect to the notice of sale by auction Exh.14.
Counsel argued that having invited people to contact the 2nd Defendant for further details, the Appellant is stopped for denying the further details supplied by the 2nd Defendant the Auctioneer. He said that the Appellant never stated the further details if such details differ from what the 2nd Defendant supplied. He referred to page 57 of the record for what DW2 understood by the term further details.
Learned Counsel referred to pages 88 to 91 of the records for what he called the Court’s incisive reasoning and finding which he said the Appellant could not fault in his brief. He referred to the evidence of DW2 on pages 56 to 57 of the record and argued there was no proof that the sale was cancelled after the discovery of the payment of N600 000 to the 2nd Respondent. He referred to Mabogienje V. Adewunmi (2006) 11 NWLR (Pt. 991) 224 CA at 25, for proof of allegation of crime in civil cases beyond reasonable doubt. The contended that the contents of the 3rd Defendant’s letter to the police if admissible is no more than a relevant fact under S.33 of the Evidence Act and not proof of its contents. He referred to the Evidence of PW2 on page 110 for the report of the Bank Officers, who witnessed the Auction sale, for which a notice to produce was served on the Appellant. He invoked S.149 (d) of the Evidence Act for the failure of the Appellant to honour the notice to produce the report of the auction sale.
Learned Counsel conceded that:
“Even though the Respondent admitted in evidence that he made contact with the Auctioneer, the Appellant’s agent, who called for same, such contact and even if there was agreement upon the purchase price cannot constitute criminal conduct.”
Because:
1. The illegality or fraud was discovered after the disapproval of the sale.
2. Appellant did not prove it had a better offer or that the price was ridiculously low.
3. There is no proof that the Auctioneer was to be paid by the Appellant.
4. And the reasoning of the trial Court at page 90 of the record was not faulted.
He argued that since there was no proof of crime against the Respondent, the sale must be taken as concluded adding that it was the Respondent who was to be defrauded, hence the Court action commenced. He contended that if there was illegality or fraud in the transaction it was perpetrated by the Appellant and its agent and by the Authority of Erekwe V. International Merchant Bank of Nigeria Ltd. (2007) 1 MJ SC 93 the Court will not allow then to benefit form such conduct. He concluded by saying, that the 1st issue is shown to be resolved against the Appellant.
In issue two on the Complaint of compound interest on the N600,000.00, Learned Counsel, the Respondent in the appeal said the Respondent sees the interest as simple calculated only once annually/yearly.
Counsel referred to letters from his creditors which he said were tendered without objection and said the interest on his indebtedness was calculated at 48% per annum. He said he pleaded interest in paragraphs 9,10,27,29 and 31 (ii) of the statement of claim and offered proof by evidence including documentary evidence, contrary to the claim in Appellant’s brief paragraphs 4.73 to 4.33.He urged the Court to dismiss the appeal with costs.
Learned Counsel then proceeded to argue the two issues in his Cross- Appellant’s brief together. Counsel reproduced page 86 from the last 4 lines to page 87 thus:
“The first Defendant having therefore stated up front on the advertisement that the sale will be subject to approval or disapproval by her, the sale of the auctioned property was not conclusive at the fall of the Auctioneers hammer but was a conditional sale which was to become binding upon the approval of same by the 1st Defendant. In law where parties have entered into a conditional contract, the condition precedent must happen before either party becomes bound by the contract…”
Counsel impugned the Judgment of the Court denying part of his claim as he urged the Court to hold that the condition for conclusion of the sale was proved. On the matter of interest he said there was no distinction between the sum of N800.000.00 and N600.000.00 as both were paid and receipted for at the same tome with the knowledge of the Appellant He referred to the testimony of PW1 (himself) at page 22 of the record.
He referred to the 1st paragraph of the receipt at page 105 of the record which states:
“This is to certify that I, Nze same Ojukwe received the sum of One Million Four Hundred Thousand naira from Mr. Aqua Bassey & Co for the purpose of Auctioning No 75 Egerton Road Calabar to him Which is the property of the mortgagee, Union Bank of Nigeria Plc. Head Office, Lagos.”
Based on the above Counsel argued that it was wrong for the Court below to treat the payments as separate. He said he believed the entire N1.4m he paid was for the property. He referred to a letter at Page43 of the record which was rejected when offered in evidence.
He reproduced the letter of 18/1/96 where in he stated:
“This transaction was confirmed by the 1st Defendant by letter to the 3rd Defendant…”
On the rejection of the letter he said that the trial Court should have been guided by S.97 (1) of the Evidence Act. He contended that the letter he offered in Evidence qualified as a written admission and was a relevant piece of evidence. Counsel argued that the trial Court would have come to a different conclusion if it had admitted the letter of 18/1/96. He argued that Exh. 16 on page 53 of the Additional record show that the property was still encumbered and that the DW2 lied when he swore that the property was released in 1996. He referred to Achu V. Civil Service Commission of Cross River State and expressed a surprise that it is the mortgagee and not the mortgagor who asked for the cancellation of the sale of the mortgaged property. Since the DW1 and DW2 led evidence to prove the fact pleaded in the amended statement of defence that the Appellant is operating as a Commercial Bank, Counsel argued that the Appellant /Cross Respondent cannot have money in its custody and not trade with it For reasons best known to the Cross- Appellant he dwelt on his indebtedness a third party for his demand for interest on the sum of N800 000.00 paid to the Auctioneer by his agent. He argued that the same interest allowed on the N600.000.00 should have been allowed on the sum of N800.000.00 paid at the same time with the N600.000.00. He argued that the Cross-Respondent’s case was based on the deceit perpetrated by it.
In conclusion he said:
“The 2 issues raised in the Cross-appeal have resolved in farvour of the Cross-Appellant.”
He urged the Court to hold that the auction was concluded, the loss to the Cross-Appellant proved. He urged the Court to grant all the reliefs Claimed by the Cross-Appellant at the trial Court in his reply brief Learned Counsel for the Appellant/Cross Respondent referred to the argument on the 20% compound interest awarded and argued that pre-judgment interest is expressly and is not subject to search in the exhibits tendered in the proceeds as suggested by the Respondent/Cross-Appellant. He argued that per-judgment interest ought to be set out in the pleading and appropriate fees paid. He relied among others on Petgas Resources Ltd Vs mbaneto (2006) AM FWLR (Pt 337) 471. In reference to the claim of the Respondent/Cross-Appellant that the pleaded interest in paragraph 9,10.27,29 and 31 (iii) of the statement of Calm he contended that besides the loan of N1.8m on which interest was claimed by his creditors the Respondent/Cross-Appellant did not claim any interest on the sum of N600.000 00.
Learned Counsel referred to evidence of the PW1 in cross examination and said that the Respondent who admitted he was no present at the auction cannot say what transpired thereof. He sad that the Respondent/Cross- Appellant did not deny the assertion of his agent who swore that he paid N600.000.00 to the auctioneer for public relations to the officers of the appellant to facilitate the deal.
Learned Counsel argued that the Appellant/Cross-Respondent was entitled to rely on the pieces of evidence extracted from the Respondent/Cross-Appellant as an admission against interest. He submitted that when a party admits allegation of illegality raised by his opponent the facts need no other proof and proof beyond reasonable doubt would have been established.
On the complaint that the Appellant /Cross Respondent did not call any of its staff to testify Counsel submitted that the Appellant/Cross-Respondent was not bound to call a particular witness talk less, more so if the evidence required is already in. He cited UBA P.C V. Chimaezie (2007) AH FWLR (Pt 364) 303. He said that the Respondent/Cross-Appellant prior to the auction, had confirmed the price of the property with the Auctioneer, and issued a cheque for N1.4m to his agent which was shared as follows: N800,000.00 for the purchase of the property and N600.000.00 for the illegal purpose earlier admitted by the Respondent /Cross-Appellant.
Counsel argued that contrary to the Respondent/Cross-Appellants argument that the Appellant/Cross Respondent benefited from the illegality, no evidence was led to that effect He added that the Respondent/Cross-Appellant can not use legal machinery to recover the fund invested in illegal project He referred to the case of Enekiwe V. International Bank of Nigeria Ltd cited by the Respondent/Cross-Appellant and said the case did not avail him. He urged the Court to allow the appeal.
In his Cross- Respondent’s brief Learned Counsel adopted the issues in the Cross Appellant’s brief, but however gave notice of preliminary objection pursuant to order 10 rule 1 of the Court of Appeal Rules 2007. The object is predicated on the ground that ground one of the Cross-appeal from which no issue was framed is deemed abandoned and ought to be struck out.
Arguing the objection Learned justice based on this, referred to ground one of the Cross-appeal and said that it is limited to the issue of the rejection of the exhibit marked “Rejected 2”.
He said that issue one alleged to encompass ground one is limited to whether or not the auction sale was concluded and has nothing to do with wrongful rejection of exhibit tendered. He relied on A.B.U Zaria V. Molakwa (2004) All FWLR (Pt 238) 664 and urged the Court to strike out the ground as abandoned.
He referred to paragraph 1.18 of the Cross-appellant brief and submitted that it was wrong for the Cross-Appellant to have argued ground one of the Cross-appeal rather than issue drawn for it. Relying on Ezemba V. Ibeneme (2004) All FWLR (Pt 223) 1786 Sc. He urged the Court to discountenance ground one of the ground of appeal.
In issues one and two of the Cross-appeal, Learned Counsel for the Cross-Respondent submitted that the trial Court was right in its finding that the auction sale was not concluded, adding that the Cross-Appellant offered no argument to the contrary. He referred to the case of Achu V. Civil Service Commission of Cross River State cited by the Cross- Appellant and said that the said authority does not avail, but operates against, the Cross-Appellant. Relying on Sand V. Nyame (2004) All FWLR(Pt 197) 930 and Ibeanacho V. Chiqere (2004) All FWLR (Pt 226) 204, he submitted that an admission against interest or statement averse to a party can be utilized by the opponent to prove and/or strengthen his case.
On the matter of interest on the N800.000.00 paid as purchase price he adopted his argument on the issue in his brief in the main appeal. He added that the Cross-Appellant is not entitled to interest on the N800.000.00 which he rejected when it was returned to him in 1995. He argued that a claim for interest on N800.000.00 and specific performance are contradictory, adding that it is either one or the either. With reference to paragraph H.18 of the Cross-Appellant’s brief he argued that the finding of fact complained of by the Cross-Appellant is unassailable, more so when there was no appeal on the facts so found. He relied on Omnia Nigeria Ltd. V. Dylctrade ltd (2007) all FWLR (Pt 394) 2001 SC.
Learned Counsel urged the Court to resolve the issues in the Cross-appeal against the Cross-Appellant and dismissed the same.
In his notice of objection and reply to the Cross-Respondent’s brief the Cross-Appellant gave notice.
“That the respondent at the trial will object to the argument of the Appellant in the reply brief paragraphs 1-01 to 1.05”
On the grounds that:
(i) Pre-judgment interest was raised for the first time when the Respondent can no longer reply.
(ii) Contrary to order 17 v. 5 of the Court of Appeal Rules 2007 Appellant reargued as appeal in the reply brief.
He urged the Court to Strike out the reply brief. He then replied to the preliminary objection by the despondence argue that the Court must consider Exh.1 and other documents that are to prove that the sale was concluded and bonding on the parties. He said ground 2 in the additional record was closely related to ground one. He relied on Ukpo V. Imole (supra) and argued that the Court may look at the grounds of appeal and formulate issues therefrom. He urged the Court to dismiss the Cross-Respondent’s preliminary objection.
In reply to Cross- Respondents argument on issue one the Cross-Appellant argued that even if ground one of the Cross-appeal is rejected, the rejected document is mentioned in ground 2. He argued further that the Cross-Respondent had acted in bad fate and can not rely on evidence that came to them after they had so acted. On bad fate he relied on Savannah Bank of Nigeria Plc Vs CBN (2009) 6 NWLR (Pt 1137) 237 at 292. On the issue of the alleged contradictory claims for specific performance and interest on N800.000.00, he said his claim was less the N800.000.00 he paid for the property. He relied on Exh. 7 and 8, where he said the interest is clearly stated.
On the issue of rent he referred to his evidence as Pw1 and argument on rents said to be covered by ground 2 of the Cross-appeal. He urged the Court to allow the Cross-appeal.
It was conceded on all sides that the late 2nd Defendant was, at all material times, an agent of a disposed principal, the Appellant herein. And it was not disputed that in inserting the public notice of the auction in the print media and in conducting the sale by auctions as advertised the 2nd Defendant acted for his principal within the scope of his authority as the agent of the Appellant.
Also the fact that the Respondent, through his agent the late 3rd Defendant paid the sum of N600.000.00 to the 2nd Defendant the agent of the Appellant alleged to be professional and sundry charges in the conduct of the sale by auction is not in dispute what needs to be settled one way or the other is whether the Appellant had knowledge of the payment made to its agents, the deceased 2nd Defendant PW1 claimed that the 2nd Defendant informed him that he collected the money on the instruction of the Appellant as has been usual in their principal-agent relationship.
On the other hand there is evidence led at the trail that the Appellant was not aware of the payment made to its agent as professional and sundry charges. This evidence was not challenged. In any case the evidence of PW1 repeating what the deceased 3rd Defendant told him (the pw1) is inadmissible hear say evidence and should not have been received in the first place. It ought to have been expunged. See Agbi V. Ogbeh (2006) 11 NWLR (Pt. 990) 65 SC.
There is no showing by the Respondent that the evidence of any communication between him and the deceased 2nd Defendant fell with in the exception to the probilition against the admission of hear-say evidence See Oyadiji V. Oluniyi (2005) 5 NWLR (Pt 919) 561 Iralud V. Adedokan (2005) 1 NWLR (Pt. 906) 199.
The Learned trial Judge was in error when he relied on the evidence which he said the Appellant failed to refute. A party is not bound to refute inadmissible evidence. It is rather the evidence that the Appellant was not aware of the payment of N600.000.00 made to its agent that is not refuted and ought to have been accepted by the trial Court.
The issue now revolves on the interpretation of the last portion of the notice inserted by the 2nd Defendant as agent of the Appellant. The portion of the notice reads:
“For further detail contact:
Nze Sam .M. Ojukwu.”
See page 96 of the records.
The trial Court agreed with the Respondent that in absence of a contrary showing by the Appellant the further details can only refer to N600.000.00 demanded and collected by the deceased 2nd Defendant from the agent of the Respondent the late 3rd Defendant as professional and sundry charges for his services. The phrase “Further details’ cannot be construed generally to include its constituent elements. Its real meaning is dependant on the con in which it is used, that is auction sale. Auction sale has been defined as:
“A manner of selling or letting property by bids at a place open to the general public, usually to the highest bidder by public competition. The prices which the public are asked to pay are the highest which those who bid can be tempted to offer by the skill and tact of the auctioneer under the excitement of open competition.”
See Okonkwo V. CCB (Nig) (2003)8 NWLR (Pt. 822)352.
Auction is:
“A sale of property in public conducted through biddings before an officer appointed by Court, that is a public sale at which goods, chattels or properties are sold by Auctioneers and made over to the highest bidders.”
See Academic’s Dictionary page 33.
Now further details in the notice of auction sale will consist of those things that can enhance the good faith, transparency and honesty in the transaction. They are those things necessary to guarantee the successful conduct of the auction sale with emphasis on publicity and open competition which are essential elements in the conduct of the transaction. Anything to contrary will cast a blur on the conduct of the auction sale and destroy the good faith, honesty transparency publicity and open competition which are the hallmarks of a successful auction sale.
Theirs is evidence from the Respondent who testified as PW1 that:
“I was informed that the cost of the property may be about N1.4 Million which was conformed by the 2nd Defendant when he was later personally contacted for further details.”
See page 31 of the records. That was part of the affidavit evidence contained in the affidavit in support of the originating summons before the Court, by which the action was commenced. It is already evidence before the Court adduced in the life time of the 2nd and 3rd Defendants either or both of whom could have challenged facts if he/they so desired.
There is credible evidence that the N600.000.00 paid to the 2nd Defendant as his professional and sundry charges was not paid to the Appellant. Out of the privately and prefixed price of N1.4M, N600.000.00 went to the agent while the principal was paid only N800.000.00. Would the Appellant authorize an act that could frustrate the advertised auction sale and in the process deprive it of the sum of N600.000 I will answer in the negative. The N600.000.00 was described as bribe by the Appellant but the trial Court held that the crime was not proved beyond reasonable doubt and that the Appellant is liable because it had the machinery to investigate the payment but failed so to do. I have demonstrated in the evidence that the money was paid as claimed, that the Appellant had no prior knowledge of the payment, the Appellant denied having authorized the payment and there is credible evidence that the money was not paid to the Appellant. There was nothing else to prove. The Court should have drawn the inevitable conclusion that this was a case of fraud against the Bank in particular and the bidding public in general. Fraud means:
“Deliberate deception intended to gain advantage.”
See Ifegwu V. Republic of Nigeria (2001) 13 NWLR(Pt 729) 113. In my humble view the N600.000.00 demanded and collected by the Auctioneer was for a purpose contrary to the proper execution of his duties as Auctioneer agent of the Appellant nor can the payment be part of the details for which the prospective bidders were directed to contact the Auctioneer.
It is my further view that in the demand for the N600.000.00 as professional and sundry charges the Auctioneer acted outside of, and contrary to, his powers as agent of the Appellant for the conduct of the auction sale.
The Respondent a lawyer of no mean standing at the Bar, claimed he did not know it was the duty of the Appellant, a Bank to pay its agent the Auctioneer. I do not believe him and neither did the trial Court. In any case the Learned Lawyer cannot make the same claim about the real purpose of the N600.000.00 he paid to the Auctioneer through his agent. He knew that the N600.000.00 has a direct impact on, and would determine the bid at which the hammer would fall for him.
He cannot deny knowledge of the obvious fact that the N600.000.00 was meant to compromise the auction sale by destroying its essential elements, particularly publicity and open competitiveness. He is in pan delicto in the conduct that rendered the auction sale a farce. Having deliberately paid the money for the fraudulent purpose of fixing the price ahead of the auction sale his action to recover same is founded on a base course. Exturpi causa non oritur actio.
The Court is a Court of law as well as equity and will not lend its aid in an action founded on a base cause or an action against public policy. See Herman V. Jeuchnor (1925) K.B.I. Dan Bisbiller Ltd V. First Bank Ltd (2000) FWLR 182.
I resolve issue one in favour of the Appellant and against the Respondent.
The success or failure of issue two depends entirely on issue one Having resolved issue one against the Respondent, I should simply make the same order in respect of issue two as the issue has been rendered merely academic. However, in case I am in error in issue one I shall formally resolve issue 2.
Issue 2 questions the award of pre-judgment interest of 20% (Compound interest) on the N600.000.00 from the date of the auction sale 12/12/95 to the date of Judgment 31/3/08. The computation of the pre-judgment interest for me period 12/12/95 to 31/3/08 resulted in the sum of N5,617,143.28 on which the Appellant was ordered to pay post Judgment interest of 10% from the date of Judgment until the Judgment debt is liquidated.
I will start with a definition of the term “Interest” and what explanation or definition of the term can be better than the one provided by the Apex Court:
“In financial transaction the word interest connotes a compensation allowed by law or fixed by the parties for the use or forebearance of f borrowed money In other words it is the cost of using credit or fund of another…”
See Veepee Industry Ltd V. Coco Industry Ltd (2008) 13 NWLR (Pt 1105) page 486 at 490. See also NDIC V. ECOBANK (Nig) Ltd (2003)11 NWLR (Pt 830) 93 at 107 (CA). Where no interest is fixed by law or the parties it is to be implied by a custom to that effect in the transaction between the parties. See Barclays Bank V. Abubakar (1977) 10 SC 13 at 23. Aforka V. ACB Ltd (1994) 3 NWLR (Pt 331) 217 at 224-225
While the post Judgment interest of 10% on the judgment debt may be backed by law, the same cannot be said of the prejudgment interest of 20% compound interest awarded by the Court on the N600.000.00. The parties did not fix or agree on prejudgment compound interest at any rate nor can the award be justified on any custom of trade in the transaction of sale by auction, interest was not specifically pleaded or proved, though the Respondent prayed in aid of certain Exhibits he tendered to show that he pleaded interest on the sum he claimed. The nearest pleading on interest is paragraph 31 (ii) of the statement of dam hereunder produced:
“Balance of paid sum and interest calculated on the said paid sum by Plaintiff’s Creditor which latest calculation shall be founded upon at the trial as it is still attracting interest, less the purchase price of N800.000.00.”
This is vague particularly in the reference to calculation of interest on the sum paid by the Respondent’s Creditor. Appellant cannot be liable to pay interest on a sum the Respondent borrowed from a 3rd party. The Respondent made a frantic effort to rely on an Exhibit he tendered as the pleading in respect of interest. I cannot agree more with Learned Counsel for the Appellant that the trial Court ought not to search through Exhibits before it for an item that should have been pleaded. Exhibits constitute evidence and any evidence on a fact not pleaded goes to no issue in the case. With profound respect the trial Court abandoned its duty of dispassionate resolution of issue before it and descended into the arena of conflict. As Expected its vision became clouded by the dust of battle, and its sense or justice and equality compromised by the stench thereof.
The Court became a “DONATUS” as it were and made unmerited financial donation in the form of compound interest to the Respondent to the detriment of the Appellant in particular and to the cause of justice in general. What I find more disturbing is the fact that the Court computed the 20% compound interest it imposed on the N600.000.00 for the period of 12/12/95 to 31/3/2008 and arrived at the staggering sum of N5,617,143.28 from the sum of N600.000.00.
I cannot help but recognize, and bow in awe to, the wizardery of the learned Trial Judge in matters of facts and figures. However, I am constrained to say with profound respect, that the forum and the circumstance chosen by the Learned trial Judge to exhibit such ingenuity are inappropriate. Having awarded the unpleaded and ipso facto unproved interest, His Lordship compounded a bad situation the more by demonstrating his expertise in higher mathematics to compute the compound interest he wrongly awarded thus creating and fuelling speculation of uneven handedness and impartiality in the sacred halls of justice.
I find no basis for the award of any pre-judgment interest on the N600.000.00 not to mention compound interest. I resolve issue two also in favour of the Appellant and against the Respondent.
The two issues having been resolved in favour of the Appellant the appeal succeeds and it is allowed I hereby set aside the portion of the Judgment of the Lower Court relating to the sum of N600.000.00 and substitute same with an order dismissing the Respondent’s claim for a refund of the said sum of N600.000.00 including order for pre-judgment and post Judgment interest.
The Respondent is to pay costs assessed at N30.000.00 for the Appellant.
CROSS APPEAL
Learned Counsel for the Cross-Respondent filed a notice of preliminary objection pursuant to order 10 r 1 of the Court of Appeal Rules The objection is predicated on the ground that no issue was framed from ground one of the Cross-appeal. Argument thereof was incorporated in the Cross -Respondent’s replied in his reply brief to the Cross-Respondents brief.
Ground one of the Cross-appeal complains that:
“The Trial Court erred in law when it rejected the Exhibit showing the approval of the auction and when it disregarded or failed to interpret properly the other documents tendered”
The particulars stated the rejected document as Exhibit 2 rejected. However, Issue one said to have been framed from grounds one and two has no reference to, or connection with ground one of the Cross-appeal. The issue is:
“Whether the auction sale was concluded and the Cross-Appellant entitled to specific performance of the contract.”
It is trite that a ground of appeal (or Cross appeal in this case) from which no issue is framed is deemed abandoned and liable to be struck out. I sustain the preliminary objection to ground one of the Cross-appeal and accordingly strike it out. The implication is that there is no appeal against the order rejecting the document marked “Exhibit 2. Rejected” and any reference to and/or argument based on, the said document goes to the issue in the Cross-appeal.
Cross-appellant, on 4/6/09 filed a process he captioned “Notice of Objection and Reply to Cross-Respondents Brief”. He argued his objection which he now called objection to the Reply brief. He then replied to the preliminary objection argued in the cross respondent’s brief, notice of which was filed in due compliance with order 10 r.1 of the Court of Appeal Rules 2007.
The grounds of the objection raised in the brief and argued therein also are such that can be dealt with in the Cross-Appellant’s Reply Brief. Since the cross-appellant has raised the grounds of his objection as threshold issue he has comply with order 10 r.1 of the Court of Appeal Rules. But the order recognizes only the Respondent (and Cross-Respondent) as the party who can raise a preliminary objection. Objection against anything contained in the Respondent’s brief or the Cross Respondent’s brief as in this case ought not to be raised by way of objection, preliminary or otherwise but ought to be dealt with in the appellant’s or cross-appellant’s reply brief. I shall therefore not entertain the objection as such but as the cross-appellant’s reply to the argument in the Cross- Respondent’s brief of argument. After all the function of a reply brief is to meet new issues raised in the Respondent’s or Cross-Respondents brief.
Issue one in the cross-appellant’s brief in whether the auction sale was concluded and the cross-appellant entitled to specific performance of the contract. I will first of all disabuse the mind of the cross appellant of any illusion regarding the status of his bid at the auction sale.
In a sale by auction, the public notice to that effect is not an offer to any bidder at the sale. The notice of auction, like the display of goods for sale in a self-service store is an invitation to treat, an invitation to the general public to come forward and offer to buy the goods at the price on the tag on the goods in case of a self-service store or at the price or bid at which the hammer falls in auction sale. See Payne v. Can (1789) 3 Term Rep. 148, Pharmaceutical Society of Great Britain v. Books Cash Chemists Ltd. (1952) 2 QB 795 and Fisher v. Bell (1961) 1 QB 394 wherein it was stated that:
“It is clear that according to the ordinary law of contract, the display of an article with the price on it in a shop window, is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.”
A notice of sale of property by auction, though without a price tag on the property is no less an invitation to treat, or a call for offers. A bid made at auction sale is not acceptance of offer which has not been made at that stage. It is the bidder who makes the offer and the Auctioneer signifies acceptance of the offer by the use of his hammer but subject to any condition precedent to a binding contract which the seller may impose.
In this case there was notice that the sale is subject to a clause giving the seller the right to approve or disapprove the sale. When the auctioneer’s hammer fell at the bidd of the cross-appellant there was no contract of sale of the property. It was merely an agreement to sell subject to approval of the transaction by the Bank – the cross-respondent herein. In this case the cross Respondent exercised its option of disapproving the sale.
The cross-appellant in his brief, raised the issue, inter alia, that the cross respondent disapproved the sale at the time it had no reason to do so. It was argued that the disapproval took place before the cross Respondent had a reason to disapprove the sale. He who asserts must prove what he asserts. See Jamuroti v. Aggeke (1991) 5 NWLR (pt 189) 1 at 13 E. Kwasalba (Nig) Ltd. V. Okonkwo (1992) 1 NWLR (pt 218) 407 at 417.
The Onus Probandi was on the cross-appellant to provide the date the disapproval was made as against the date the cross-respondent had notice and knowledge of the reason upon which the disapproval could have been made or was made. The Cross-Appellant relied heavily on a letter market rejected at page 43 of the additional records in his argument that the cross respondent had conveyed approval of the transaction to his agent the late 3rd Defendant before issuing its disapproval. Learned Counsel for the cross-respondent argued, right in my view, that the cross-appellant, not having appealed against the order of the Court below rejecting the letter to his agent cannot rely on the rejected letter in his contention that the sale was ever approved by the cross-respondent.
Having disposed of the peripheral matters in the Cross-appeal, I will now deal with the propriety vel non of the cross respondent exercising its option of backing out of the agreement for the sale of the mortgaged property.
The cross respondent justified its disapproval of the agreement to sale on the ground that the Cross-Appellant compromised the conduct of the auction sale by payment of N600,000 bribe to its agent the late 2nd defendant. The cross Appellant countered this by claiming that the N600,000 was part of the further details for which members of the public interested were referred to the auctioneer. I find this argument specious. The N600,000 claimed to be professional and Sundry charges of the auctioneer was part of the pre-auction fixed price of N1.4m for the mortgaded property.
Even if it could be accepted that the cross appellant did not know, as he claimed, that the mortgagee has the duty of paying its agent, he cannot escape the implication of having known, prior to the auction, that the price of the subject of the auction was put at N1.4m before the auction.
The cross-appellant as PW1 cross-examined by learned counsel for the cross-respondent admitted that:
“It is correct that I filed an originating summons in this court dated 26/6/97 Yes I supported that originating summons with my affidavit. I stated in paragraph 3 of that affidavit that I was informed that the cost of the property may be about 1.4million which was confirmed by the 2nd defendant when he was later personally contacted for further details, it was at another meeting when the 2nd defendant confirmed to me that the price of the property will be about N1.4 million. I met the 2nd defendant about thrice in the course of this transaction. The meeting were before the auction…”
See page 31 of the records.
In his cross-examination of the cross-appellant, the learned counsel for the cross respondent put to effective use the materials in his Possession, it is worthy of note that the cross-appellant avoided any reference to the fixed price of the mortgaged property or the three meetings he had with the auctioneer before the date of the auction in his evidence in Chief. One can understand the need for a prospective bidder at auction sale to inspect the property before the auction but on the facts before the court below, the three pre-auction meetings the cross-appellant had with the auctioneer were for negotiation of the price of the property at the bid for which the hammer would fail for the cross appellant. The effect of the above passage in the cross-examination of the cross-appellant was made more devastating to his case by the fact that the admission was forced out in cross-examination.
The cross appellant would want the court to believe that auctioneer, addressing the prospective bidder at the advertised auction as part of further details if the auction sale announced publicly that a successful bidder would have to pay him the sum N600,000 as his professional and sundry charges. But the question is, did the auctioneer also inform the prospective bidders that he fixed the price of the mortgaged property at m.4million? If that was announced there would have been no bids as the first person to offer the said sum of N1.4m would have bought the property.
Cross-appellant argued with some heat that though he admitted meeting the auctioneer with whom he reached agreement on the purchase price of the property, his action did not constitute a criminal conduct.
By his admitted conduct, tainted with gross moral turpitude, the cross appellant scuttled the moral and legal basis of the auction sale in which he went through the motion of bidding through his agent “THIS TRANSACTION” in the quoted potion of the cross-examination of the cross appellant for which the cross appellant held three meetings before the auction was not the auction itself. It was negotiation for the sum at which the auctioneer hammer’s would fall for the agent of the cross Appellant whom he sent to the auction and who had knowledge of the result of the meeting. It is correct to assume that at the last meeting the auctioneer and the cross appellant and his agent reached an agreement and put the price of N1.4m on the property to be sold by auction. His admitted conduct fell within the term fraud. See Adimora v. Ajuto (1988) 3 NWLR (pt 80) p1 which described fraud thus:
“The term “fraud’ must be used and understood in the common meaning of the word, as it is ordinarily used in the English Language and as implying some base conduct and moral turpitude. It is a term that should be reserved for something dishonest and morally wrong; it is a willful act on the part of anyone where another is sought to the deprived by illegal or inequitable means, what he is entitled to.”
See also Egbo v. Nwali (1998) 6 NWLR (pt 553) 201.
On the facts before the Court below the cross-respondent approved of the agreement for the sale of the property on unimpeachable ground of fraud to which the cross respondent acted in pari delicto with the auctioneer in agreeing on the price of the property prior to the auction sale. I agreement with the trial court that the sale was not concluded and the claim for the specific performance cannot be granted. I resolve issue 1 in the cross appeal against the cross appellant.
Issue 2 raises a matter of interest or rate of interest on the N600 000 which matter has been largely dealt with in the main appeal. However I will add that the cross appellant is not entitled to the refund of N600,000 from the cross respondent and could therefore not claim any interest on the said sum.
As regards the N800.000 he paid for the property based on prior fraudulent agreement with the auctioneer, there is unchanged and credible evidence that the money was refunded to the cross appellant’s agent who paid it to him. He rejected the money and the same was returned to the cross-respondent. He paid the money in an auction sale which produced a parody of auction sale by his own admitted unethical conduct in conclusion with the auctioneer. His action is unbecoming of a man of his profession and status, and even if the money was not returned to him through his agent, the court would not lend its aid to the cross appellant to benefit from his base conduct by awarding interest on the sum. I resolve issue 2 against the Cross- Appellant.
Cross-Appellant is to pay costs assessed at N30.000 to the Cross-Respondent.
K. B. AKAAHS, J.C.A.: I read before now the judgment of my learned brother, Ngwuta, JCA. He set out in admirable fashion the facts and discussed exhaustively the law dealing with the principle of law on ex turpi causa. It is as clear as daylight that the payment of N600,000.00 (Six Hundred Thousand Naira) which the Respondent/Cross-Appellant made to the auctioneer was a bribe which tainted the whole transaction and made it even if it was not a conditional sale unenforceable.
Our fight to stem the tide of bribery and corruption must not be limited to the public domain but the searchlight must be extended to other bodies and particularly the commercial world. In commercial transactions, it is not usually the purchaser that is saddled with the responsibility of meeting the professional fees charged by the auctioneer but the party (usually the mortgagee) who engages him for the auction sale.
It is for the above reasons and the more detailed reasons contained in the judgment of my learned brother, Ngwuta JCA, that I too find the substantive appeal meritorious and the cross-appeal lacking in merit. I endorse the award of costs made in the substantive appeal as well as the cross-appeal.
JEAN OMOKRI, J.C.A.: I had the privilege of reading in advance the judgment justice delivered by my learned brother N.S. Ngwuta, JCA. I agree with his reasoning and conclusion that the appeal has merit. It is obvious that the sum of N600,000 paid by the respondent is a bribe to compromise the auction sale. The auction sale was a farce. There is no doubt that having deliberately paid the money for the fraudulent purpose of fixing the price before the auction sale, the respondent’s action to recover same is founded on a base course. Ex turpi causa non oritur action.
The maxim “Ex turpi causa non oritur action” means an action does not arise from a base cause.
In applying this maxim, the underlying principle is the public conscience test. See Adebo vs. Omisola (2005) 2 NWLR (Pt. 909) 149. The trial court was wrong to have given judgment to the respondent and a stupendous interest on the sum of N600,000.
The appeal is meritorious and I also allow it. I abide by the consequential order made in the lead judgment.
Appearances
CHIEF OROK I. IRONBARFor Appellant
AND
IMO INYANG ESQ.For Respondent
