MEDITERRANEAN SHIPPING CO. (NIG) LTD v. PEWIS ENT. LTD (2021)

MEDITERRANEAN SHIPPING CO. (NIG) LTD v. PEWIS ENT. LTD

(2021)LCN/14993(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, February 18, 2021

CA/L/1514/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

MEDITERRANEAN SHIPPING COMPANY NIG. LTD APPELANT(S)

And

PEWIS ENTERPRISES LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT THE ISSUE OF SIGNING AND ENDORSING A WRIT OF SUMMONS BY A LEGAL PRACTITIONER IS A REQUIREMENT OF SUBSTANTIVE LAW

However, the Supreme Court has held severally that the issue of signing and endorsement of a writ of summons by a legal practitioner, where the claimant sues with one as in the instant case, is a requirement of substantive law, and not of procedural law; that it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the Court process and that it is an issue that can be raised even at the Supreme Court for the first time – see for example,Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Oliyide Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt 1622) 549. PER ABIRU, J.C.A.

THRESHOLD FOR WHAT CONSTITUTES PROPER SIGNING OF COURT PROCESSES

The truth of the matter is that, the Courts have set certain thresholds for what constitutes proper signing of Court processes and once the manner of signing a Court process falls anywhere between the threshold and the suggested perfect manner of endorsement of signature, the signing of the Court process is proper. Now, signature is defined as a person’s name or mark, written by that person or at the persons direction, it is also any name, mark or writing used with the intention of authenticating a document – Oko Vs Ntaji (2014) LPELR 24248(CA), Michmerah International Ltd Vs Nigeria International Bank Ltd (2015) LPELR 25768(CA). In SLB Consortium Ltd Vs Nigeria National Petroleum Corporation supra at pages 331-332, Onnonghen, JSC, (as he then was), commenting on what constitutes signing of Court process by a legal practitioner, said in the lead judgment thus:
“… In signing the notice of Appeal, Mr. Cole used his own name, that is to say the name in which he registered as a Legal practitioner. We hold that on any interpretation of the rules, that was a sufficient compliance with them, and we do not accept the submissions that the addition of the words ‘For A.J Cole & Co. would invalidate the signature if the signature in a business name was not permitted’. …The above decision clearly states that a process prepared and filed in a Court of law by a legal practitioner must be signed by the Legal Practitioner and that it is sufficient signature if the Legal Practitioner simply writes his own name over and above the name of his or her firm in which he carries out his practice. In the instant case it would have been sufficient if Mr. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co, because Mr. Adewale Adesokan is a legal Practitioner registered to practice law in the Roll at the Supreme Court…”(underlining for emphasis)
This statement was quoted with approval by the Supreme Court in Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC). Again, in Dankwambo Vs Abubakar (2016) 2 NWLR (Pt 1495) 157, Kekere-Ekun, JSC said thus: “I agree with learned counsel for the 1st respondent that there is nothing in Section 2(1) of the Legal Practitioners Act that prohibits the use of an abbreviation of one’s name or initials in signing documents and/or conducting proceedings in any Court of law in Nigeria. In my view, to construe Section 2(1) of the Legal Practitioners Act in the strict sense urged by learned senior counsel for the appellant would be inconsistent with the intendment of the provision, which is to protect the legal profession from impostors and charlatans. Such an interpretation would amount to enthroning technicalities at the expense of substance and would certainly lead to a miscarriage of justice as has occurred in the instant case. It cannot be the intendment of the statute to punish a legal practitioner who has genuinely been called to the Bar simply because he signs processes and conducts proceedings using an abbreviation of his name as it appears on the Roll.”
In other words, the writing of the name of the legal practitioner, either in full or with his initials, on the writ of summons, apart from and in addition to the name of his law firm, meets the requirement of signing of a Court process by the legal practitioner under the provisions of Order 3 Rules 11(1) and 12(3) of the Federal High Court (Civil Procedure) Rules 2009 and of Sections 2 and 24 of the Legal Practitioners Act. In Michmerah International Ltd Vs Nigeria International Bank Ltd supra, this Court, relying on the case of SLB Consortium Ltd Vs Nigeria National Petroleum Corporation supra, opined thus: “I think on the above authority alone, I am not left in any doubt that Babatunde J. Fagbohunlu whose name featured in all the processes over the name of his Law Firm Aluko & Oyebode is a verifiable Legal Practitioner and human person registered to practice as a Legal Practitioner in Nigeria. PER ABIRU, J.C.A.

WHETHER OR NOT THE PRIMARY RESPONSIBILTY OF A TRIAL COURT IS TO EVALAUTE EVIDENCE PRESENTED BY PARTIES BEFORE IT AND ASCRIBE PROBATIVE VALUE TO THE EVIDENCE

It is settled law that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Shingi Vs Bandado (2018) LPELR 46549(CA), State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289, MTN Vs Corporate Communication Investment Ltd (2019) LPELR 47042(SC).
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217, State Vs Sani (2018) 9 NWLR (Pt 1624) 278. Therefore, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. PER ABIRU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

Counsel highlighted the findings made by the lower Court which were inimical to the case and interest of the Appellant and conceded that an appellant who desires to challenge the findings made a lower Court has the onus of showing that the findings were wrong and that an appellate Court would not ordinarily interfere with the findings made by a lower Court unless such findings are shown to be perverse and he referred to the case of Olaniyan Vs Oyewole (2011) 14 NWLR (Pt 1268) 445. Counsel referred to the cases of Savannah Bank of Nig Plc Vs Central Bank of Nigeria (2009) 6 NWLR (Pt 1137) 237 and Osuji Vs Ekeocha (2009) 16 NWLR (Pt 1166) 81 in defining what amounts to a perverse decision. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering The Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Lagos delivered in Suit FHC/L/CS/711/2015 on the 22nd of November, 2017 by Honorable Justice J. K. Dagat. The Respondent was the claimant in the lower Court and its claims were for:
i. A declaration that the Appellant’s unilateral decision to ship the Respondent’s consignment without instruction and contract document was wrong and unlawful.
ii. An order mandating the Appellant to pay the sum of €4,140 (Euros) which is the cost of the consignment wrongly shipped to Hamburg Germany by the Appellant and interest on the said sum from 1st of June, 2014 at 22% per annum until the whole sum is liquidated.
iii. Cost of the action in the sum of N450,000.00.

The case of the Respondent on the pleadings was that sometime in 2014, it engaged the Appellant for the shipping of containers of charcoal to its clients in Europe and that it was the practice that the Appellant would only ship a container after the receipt of the contract documents between the consignee

and the consignor and of the shipping instructions and this was the basis upon which the Appellant shipped of its containers to its clients. It was its case that sometime in March, 2014, the Appellant shipped a container of charcoal meant for its client, Green Holding S.A of Belgium, to Hamburg in Germany and that the Appellant made the shipment without the contract papers and/or shipping instructions and that it notified the Appellant immediately it discovered the error and requested that the container be redirected to its client in Belgium.

It was the case of the Respondent that the Appellant failed and neglected to ship the container from Hamburg to Belgium despite its repeated demands and that the parties had a meeting sometime in December, 2014 to resolve the issue and whereat it was agreed that the Appellant would sell the container of charcoal wrongly shipped to Germany and pay its cost, €4,140 (Euros) to it. It was its case that, consequent on the agreement, it authored and sent to the Appellant via email a letter authorizing the sale of the container of charcoal in Germany and that the Appellant sold the goods and has refused to pay over the

cost to it, as agreed, despite repeated demands. It was its case that it paid the sum of N300,000.00 to its Solicitors as a deposit against professional fees for the prosecution of this case.

In his response pleadings, the Appellant denied the entire case of the Respondent and it was its case that it is not a ship owning company and has never transacted business as carriers of goods by sea and that it is only a shipping agent and acts as local agents of foreign ship owners. It was its case that sometime in June, 2014, the Respondent acting by itself or through its freight forwarder/broker/agent, Micbaco Forwarding Agencies, through shipping instructions generated from INTRAA, an information and communication technology platform, booked for the shipment of a 40ft container of charcoal by sea carriage from Apapa, Lagos to Hamburg in Germany. It was its case that the Respondent, as the shipper, had sole access to the INTRAA Platform and possessed the password to the Respondent’s INTRAA account and that the booking instructions were submitted to its export department through the INTRAA Platform.

It was the case of the Appellant that for the purpose of the shipment, it leased a 40ft container to the Respondent for the loading of the charcoal and the container was shipped to the intended consignee in Germany, Wladyslaw Skrobot, and the consignee rejected the shipment on arrival in Germany and by reason which it was debited for the costs of storage of the container in Germany and demurrage costs which continued to accrue. It was its case that it brought the development to the notice of the Respondent, who initially refused to respond until it made a formal demand for the costs of storage and demurrage, and whereupon the Respondent denied authorizing the shipment. It was its case that the letter of authorization to sell the container of charcoal issued by the Respondent were in furtherance of its attempt to assist the Respondent mitigate its losses by suggesting that the Respondent looked for another buyer for the goods following its rejection by the original consignee. It was its case that it could not have booked goods for export shipment without the involvement and authorization of the Respondent.

The Appellant co-joined a counterclaim to its statement of defence and it was its case thereon that under the bill of lading issued in respect of the shipment and the customs and usages in the shipping trade, the Respondent, as the shipper, was obligated to pay or offset freight, demurrage, storage and other associated costs at the port of discharge where the shipment is rejected, abandoned or unclaimed by the consignee. It was its case that by reason of the rejection of the container of charcoal by the consignee, it was debited with the costs of storage and demurrage incurred at the port of discharge in Hamburg, Germany and that it is entitled to be indemnified for these costs by the Respondent. It counterclaimed thus:
i. The sum of €14,000 (Euros) being the accrued storage charges incurred by the Appellant and debited into its account as at December, 2014 for the delayed return of its container collected by the Respondent.
ii. The sum of €7,440 (Euros) being the costs incurred as a result of the abandonment and/or failure to clear the shipment at the port of discharge.
iii. The payment of all sums due to the Appellant as accruing demurrage as specified in the Appellant’s tariff.
iv. The return of the Appellant’s container or in the alternative the payment of its replacement value.

The Respondent filed a reply to the statement of defence and a defence to the counterclaim of the Appellant and he conceded therein that it was the Appellant that provided the container for the loading of the charcoal in question, but asserted that, as was the normal practice, the consignee in Belgium generated a container booking for the shipment by email and the shipping line confirmed the shipment through the INTRRA platform and the Appellant obtained the contract document between the Respondent and the consignee showing clearly that the shipment was bound for Belgium before releasing the container and processing the export booking. It was its case that anyone could book a shipment and generate a shipping instruction on the INTRRA platform and the shipping instruction relied upon by the Appellant was an afterthought and was generated by the Appellant after the Respondent complained the wrong shipping of its consignment to cover its negligence.

It was the case of the Respondent that it never discussed or instructed the Appellant to process the shipment of the consignment to Wladyslaw Skrobot in Germany and it never submitted any contract document to that effect to the Appellant and that the Appellant had in fact confirmed in an email that Wladyslaw Skrobot has stopped taking consignment of charcoal before it negligently processed the consignment to Germany. It was its case that the Appellant did not follow the usual practice of issuing the bill of lading for the shipment and that the container of charcoal in question was traced to the United States of America under the service of the Appellant. It was its case that all the costs allegedly incurred by the Appellant, storage and demurrage, were as a result of the negligence of the Appellant in shipping the consignment meant for Belgium to Germany.

The matter proceeded to trial and in the course of which the Respondent called two witnesses and tendered several documents in proof of its case while the Appellant called one witness and also tendered documents in proof of its case. At the conclusion of trial, Counsel to the parties filed their respective final written addresses and relied on and adopted the arguments therein before the lower Court. The lower Court

entered judgment wherein it granted the claims of the Respondent and it dismissed the counterclaim of the Appellant. The Appellant was dissatisfied with the judgment of the lower Court it caused its Counsel to file a notice of appeal dated the 27th of November, 2017 and containing seven grounds of appeal against it.

The notice of appeal was subsequently amended with the leave of this Court and the Appellant filed an amended notice of appeal dated the 9th of July, 2018 and containing eight grounds of appeal on the 26th of July, 2018. In arguing the appeal, Counsel to the Appellant filed an amended brief of arguments dated the 9th of July, 2018 on the 26th of July, 2018 and the brief of arguments was deemed properly filed and served by this Court on the 6th of May, 2019. Counsel to the Respondent filed a brief of arguments dated the 28th of September, 2018 on the 4th of October, 2018 in response and the brief of arguments was also deemed properly filed and served on the 6th of May, 2019. Counsel to the Appellant filed a Reply brief of arguments dated the 13th of May, 2019 on the 16th of May, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions on the appeal.

Counsel to the Appellant distilled five issues for determination in the appeal and these were:
i. Whether the unsigned originating writ of summons filed by the Respondent at the lower Court could validly activate the jurisdiction of the lower Court to entertain the Respondent’s claims.
ii. Whether the totality of the evidence adduced at trial was properly evaluated by the trial Judge.
iii. Whether the findings of fact made by the trial Judge were properly arrived at having regards to the pleadings, burden and standard of proof and the totality of the evidence adduced before the trial Court.
iv. Whether the learned trial Judge was right to award the entire reliefs sought by the Respondent.
v. Whether the Appellant’s right of fair hearing was not seriously impaired when the lower Court peremptorily dismissed the Appellant’s counterclaim without assessing or evaluating same.

Counsel to the Respondent conceded that there were five issues for determination in the appeal and he agreed with the issues

for determination formulated by Counsel to the Appellant, but proceeded to reframe them in different words; a mere matter of semantics. Reading through the records of appeal, particularly the pleadings of the parties, the notes of evidence, the final written addresses of Counsel and the judgment of the lower Court, as well as the amended notice of appeal and arguments in the respective briefs of arguments, it is the view of this Court that there are three issues for determination in the appeal. These are:
i. Whether the action in the lower Court was commenced by a proper, valid and lawful writ of summons.
ii. Whether, on state of the pleadings and the evidence led by the parties, the lower Court was correct when it entered judgment in favour of the Respondent and granted its claims.
iii. Whether the lower Court breached the Appellant’s right to fair hearing in dismissing its counterclaim.

This appeal will be resolved on these three issues for determination and all the arguments canvassed by Counsel to the parties will be considered under the three issues for determination. The three issues for determination will be resolved seriatim.

Issue One
Whether the action in the lower Court was commenced by a proper, valid and lawful writ of summons
In arguing the first issue for determination, Counsel to the Appellant referred to the cases of Oni Vs Cadbury Nigeria Plc (2016) LPELR 26061(SC), Madukolu Vs Nkemdilim (1962) 2 SCNLR 341 and Obiuweubi Vs Central Bank of Nigeria (2011) 7 NWLR 23, amongst others, in asserting that an action must be commenced by due process of law and that any condition precedent to the jurisdiction of the Court must be complied with. Counsel stated that the applicable Rules of Court in the instant case is the Federal High Court (Civil Procedure) Rules of 2009 and that it provides in Order 3 Rules 11(1) and 12(3) that for a writ of summons to be valid, it must be signed by either the plaintiff where he sues in person, or by a legal practitioner representing the plaintiff. Counsel stated that additionally the combined effect of Sections 2 and 24 of the Legal Practitioners Act makes it mandatory that where a plaintiff is represented by a legal practitioner, the originating process therein must be signed and endorsed with the name of a Solicitor whose name is on the roll of legal practitioners duly certified to practice in Nigeria.

Counsel stated that it is settled law that an unsigned writ of summons is incompetent and incapable of activating the jurisdiction of the Court and that such a default is not a mere irregularity that can be waived aside and it is not curable and it renders the writ of summons void and he referred to several case law authorities on the point such as SLB Consortium Vs NNPC (2011) 3-4 MJSC 145, Okarika Vs Samuel (2013) 7 NWLR (Pt 1352) 19, Julius Berger Nigeria Plc Vs Jameshill Associate Ltd (2018) LPELR 44299(CA), and many others. Counsel stated that the fact that the name and address of Counsel to the Respondent was written on the writ of summons did not dispense with the need to sign thereon and he referred to the case of Odejayi Vs Henley Industries Ltd (2013) LPELR 20368(CA). Counsel stated that the writ of summons issued in the present case was void and that where a condition precedent to the exercise of jurisdiction is not fulfilled, the entire proceedings conducted thereon, no matter how well done, must be regarded as a nullity and he referred to the cases of

Tubonemi Vs Dikibo (2006) 5 NWLR (Pt 974) 565, Orakul Resources Ltd Vs NCC (2007) 16 NWLR (Pt 1060) 270 and Purechem Industries Ltd Vs Spica Shipping (2012) 13 NWLR (Pt 1287) 327.

Counsel referred to the cases of Unipetrol (Nig) Plc Vs Agip Nig Plc (2002) 14 NWLR (Pt 787) 312 and EBN Ltd Vs Halilco (Nig) Ltd (2006) 7 NWLR (Pt 980) 568 in stating that the fact of the writ of summons issued in this case being void affected the judgment delivered by the lower Court and rendered it void. Counsel urged the Court to resolve the issue for determination in favour of the Appellant and to set aside the judgment of the lower Court.

In his response arguments, Counsel to the Respondent stated that a perusal of the writ of summons shows that it was validly signed by his Counsel and that the Counsel wrote his name, name of his chambers and address for service and also appended his signature thereon. Counsel conceded that the signature was not located in the proper place, in the signature column, and was appended in a wrong column after the name and address of Counsel, but stated that this can only be a mere irregularity and does not go to the root of the matter

and cannot thus affect the jurisdiction of the lower Court. Counsel stated that it would have been different if no signature of Counsel was appended anywhere on the writ of summons and that the signature is visible and that as such all the submissions and cases referred to by Counsel to the Appellant are not relevant in the instant case and are mere afterthoughts.

Counsel stated that acceding to the arguments of Counsel to the Appellant in the circumstances of the instant case will amount to adherence to unnecessary technicalities and that the modern trend in the justice system is substantial justice as opposed to technical justice and he referred to the cases of Odeh Vs Federal Republic of Nigeria (2008) 3-4SC 1147, Balogun Vs Agbara Estate Ltd (2008) 34 WRN 77, Amaechi Vs INEC (2008) 10 WRN 1, amongst others. Counsel stated that the writ of summons was validly signed by Counsel to the Respondent and it proper ignited the jurisdiction of the lower Court and he urged the Court resolve the first issue for determination in favour of the Respondent.

In the Reply brief of arguments, Counsel to the Appellant stated that assuming that indeed the signature in the column under the name and address of Counsel was that of the Counsel to the Respondent, the endorsements on the writ of summons were not in the order listed by the Supreme Court in the case of SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt 1252) 317, which is (i) signature of Counsel, which may be a contraption; (ii) name of Counsel, (iii) who the Counsel represents; (iv) name and address of the legal firm. Counsel stated further that since there was nothing tying the signature in the wrong column to the name of the Counsel to the Respondent, it would amount to speculation to assume that the signature is that of the Counsel.

This issue of the non-signing of the writ of summons was not raised in the lower Court and it was not pronounced upon by the lower Court in the judgment. However, the Supreme Court has held severally that the issue of signing and endorsement of a writ of summons by a legal practitioner, where the claimant sues with one as in the instant case, is a requirement of substantive law, and not of procedural law; that it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a

miscarriage of justice or prejudice by such signing of the Court process and that it is an issue that can be raised even at the Supreme Court for the first time – see for example,Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Oliyide Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt 1622) 549.

This Court agrees entirely with Counsel to the Appellant that it is a requirement for validity of an originating Court process that it should be signed by either the claimant, where he sues in person, or by his legal practitioner, where he sues by one, and that where the writ of summons is not so signed, it is null and void and cannot ignite the jurisdiction of the Court to hear and determine the case and it renders as nullifies the proceeding conducted and judgment delivered thereon. There are a plethora of authorities on the point, including those referred to by the Counsel to the Appellant.

Perusing through the writ of summons filed by the Respondent in the lower Court, it is correct, as asserted by Counsel to the Respondent, that there is a signature or written

mark appended thereon in the portion headed “Endorsement to be made on copy of writ of forthwith after service” and which followed the paragraph containing the name, firm name and address of the legal practitioner to the Respondent. The signature or written mark is on a column provided after the words, “This writ was served by me at”. It is obvious that the signature or written mark is located in the portion and column provided for the endorsement of the bailiff who served the writ of summons on the Appellant, and it was not provided for endorsement by the legal practitioner to the Respondent.
There is nothing on the writ of summons showing that the signature or written mark belonged to the legal practitioner to the Respondent who issued the writ of summons and Counsel to the Respondent has not requested this Court to compare the signature with those appended against the name of the legal practitioner in the other Court processes filed in this matter. This Court is thus handicapped in exercising its power to compare signatures under Section 101(1) of the Evidence Act – Yongo Vs Commissioner of Police (1992) LPELR 3528(SC),

Enwenrem Vs Abubakar (2016) LPELR 40369(CA), Aliyu Vs Okoye (2018) LPELR 45429(CA), Sanmi Vs State (2019) LPELR 47418(SC). To assume, as suggested by Counsel to the Respondent, that the signature or written mark on the writ of summons belonged to the legal practitioner who issued it will amount to this Court engaging in speculation. The law is trite that a Court of law does not act on speculation or conjecture – Adegbite Vs State (2017) LPELR 42585(SC), Awolola Vs Governor Ekiti State (2018) LPELR 46346(SC).
Be the above as it may, as stated earlier, the endorsement on the writ of summons contained the name of the legal practitioner, the name of the law firm, the person he represents and his address for service – “Olugbenga Ibrahim Esq of De-Remedium Chambers, whose address for service is No 2, Akintoye Shogunle Street, Ikeja, Lagos, Solicitors for the said Plaintiff”. The complaint of the Appellant is that the endorsement did not contain the signature of either the Respondent or of the legal practitioner. It is correct that in his contributory judgment in the case of In SLB Consortium Ltd Vs Nigeria National Petroleum Corporation

(2011) 9 NWLR (Pt. 1252) 317 at 337-338, Rhodes-Vivour, JSC, suggested the perfect manner of endorsing Court process when signing thus: first, the signature of Counsel, which may be any contraption, followed by name of Counsel clearly written, and then whom counsel represents, followed by the name and address of the Law Firm. This suggestion has been re-echoed by the Supreme Court in other cases such as Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC). There is, however, nothing in these cases that says that this suggested perfect manner of endorsement of Court processes is engraved in stone and that once it is not complied with, the signing of the Court process is invalid; none of the cases made such pronouncement.
The truth of the matter is that, the Courts have set certain thresholds for what constitutes proper signing of Court processes and once the manner of signing a Court process falls anywhere between the threshold and the suggested perfect manner of endorsement of signature, the signing of the Court process is proper. Now,

signature is defined as a person’s name or mark, written by that person or at the persons direction, it is also any name, mark or writing used with the intention of authenticating a document – Oko Vs Ntaji (2014) LPELR 24248(CA), Michmerah International Ltd Vs Nigeria International Bank Ltd (2015) LPELR 25768(CA). In SLB Consortium Ltd Vs Nigeria National Petroleum Corporation supra at pages 331-332, Onnonghen, JSC, (as he then was), commenting on what constitutes signing of Court process by a legal practitioner, said in the lead judgment thus:
“… In signing the notice of Appeal, Mr. Cole used his own name, that is to say the name in which he registered as a Legal practitioner. We hold that on any interpretation of the rules, that was a sufficient compliance with them, and we do not accept the submissions that the addition of the words ‘For A.J Cole & Co. would invalidate the signature if the signature in a business name was not permitted’. …The above decision clearly states that a process prepared and filed in a Court of law by a legal practitioner must be signed by the Legal Practitioner and that it is sufficient

signature if the Legal Practitioner simply writes his own name over and above the name of his or her firm in which he carries out his practice. In the instant case it would have been sufficient if Mr. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co, because Mr. Adewale Adesokan is a legal Practitioner registered to practice law in the Roll at the Supreme Court…”(underlining for emphasis)
This statement was quoted with approval by the Supreme Court in Okpe Vs Fan Milk Plc (2016) LPELR 42562(SC), Emeka Vs Chuba-Ikpeazu (2017) LPELR 41920(SC), Bank of Industry Ltd Vs Awojugbagbe Light Industries Ltd (2018) LPELR 43812(SC). Again, in Dankwambo Vs Abubakar (2016) 2 NWLR (Pt 1495) 157, Kekere-Ekun, JSC said thus:
“I agree with learned counsel for the 1st respondent that there is nothing in Section 2(1) of the Legal Practitioners Act that prohibits the use of an abbreviation of one’s name or initials in signing documents and/or conducting proceedings in any Court of law in Nigeria. In my view, to construe Section 2(1) of the Legal Practitioners Act in the strict sense urged by learned senior counsel

for the appellant would be inconsistent with the intendment of the provision, which is to protect the legal profession from impostors and charlatans. Such an interpretation would amount to enthroning technicalities at the expense of substance and would certainly lead to a miscarriage of justice as has occurred in the instant case. It cannot be the intendment of the statute to punish a legal practitioner who has genuinely been called to the Bar simply because he signs processes and conducts proceedings using an abbreviation of his name as it appears on the Roll.”
In other words, the writing of the name of the legal practitioner, either in full or with his initials, on the writ of summons, apart from and in addition to the name of his law firm, meets the requirement of signing of a Court process by the legal practitioner under the provisions of Order 3 Rules 11(1) and 12(3) of the Federal High Court (Civil Procedure) Rules 2009 and of Sections 2 and 24 of the Legal Practitioners Act. In Michmerah International Ltd Vs Nigeria International Bank Ltd supra, this Court, relying on the case of SLB Consortium Ltd Vs Nigeria National Petroleum Corporation

supra, opined thus:
“I think on the above authority alone, I am not left in any doubt that Babatunde J. Fagbohunlu whose name featured in all the processes over the name of his Law Firm Aluko & Oyebode is a verifiable Legal Practitioner and human person registered to practice as a Legal Practitioner in Nigeria. In other words, upon reading the processes subject of this appeal, it is clear that they were signed by BABATUNDE FAGBOHUNLU OF ALUKO & OYEBODE. I do not think learned Counsel for the Appellant is right in submitting that the processes in contention were not signed by a verifiable human person legal practitioner, registered and qualified to Practice. I am sure upon reading the processes; any person desirous of verifying the credentials of the signatory may go ahead to search for the Legal Practitioner Babatunde Fagbohunlu from the Roll of Legal Practitioners at the Supreme Court. I am also sure that satisfactory personal appraisal of the processes will be sufficient to convince one that the processes do not bear any doubtful origin; they are processes that are simply and easily traceable to Babatunde Fagbohunlu.”

In Tell Communications Ltd Vs Ngilari (2019) LPELR 46934(CA), this Court reiterated thus:
“In SLB Consortium Ltd Vs NNPC supra, the Supreme Court further noted the signature of the legal practitioner on a Court process need not be anything special and that the mere writing of the name of the legal practitioner can constitute a signature.
In the instant case, the writ of summons, as contained in the records of appeal, carries the name of the Counsel to the Appellant clearly written; it stated who the Counsel represents; and the name and address of the legal firm of Counsel. It also carries the signature of the Judge who issued the writ. There was no doubt as to the identity of the legal practitioner who took out the writ of summons and it was not in contest the identified legal practitioner is listed on the Roll of Barristers at the Supreme Court as someone entitled to practice law in Nigeria. The writ of summons met the essential requirements and satisfied the purpose of 2 (1) and 24 of the Legal Practitioners Act.”
Similar statements were made by this Court in the cases of Allu Vs Gyunka (2015) LPELR 40478(CA), Oshoko Vs Akinrinade (2016)

LPELR 41948(CA), Pacers Multi-Dynamics Ltd Vs Ecobank Plc (2018) LPELR 45008(CA). The writ of summons filed by the Respondent in the lower Court met this threshold and it was thus proper and valid and it adequately ignited the jurisdiction of the lower Court to hear and entertain the claims of the Respondent. The complaint of the Appellant under the first issue for determination was unfounded and the issue for determination is resolved in favour of the Respondent.

Issue Two
Whether on state of the pleadings and the evidence led by the parties, the lower Court was correct when it entered judgment in favour of the Respondent and granted its claims.
In arguing the issue for determination, Counsel to the Appellant referred to the case of Onwuka Vs Ediala (1989) 1 NWLR (Pt 96) 182 in asserting that evaluation of evidence means the assessment of evidence so as to give value or quality to it and also to the case of Aregbesola Vs Oyinlola (2011) 9 NWLR (Pt 1253) 458 in reiterating how an appellate Court should deal with a complaint of improper evaluation of evidence. Counsel traversed through the deliberations and the findings made on the evidence of

the parties in the judgment and noted that the lower Court placed undue weight on two pieces of documentary evidence tendered by the Respondent as Exhibits AD10 and AD11 without thoroughly scrutinizing their contents to see that they were not in support of the findings made. Counsel juxtaposed the contents of the two exhibits with the oral evidence led by the Respondent’s witnesses and stated that they were contradictory and that the conclusions reached by the lower Court on the exhibits were erroneous in that the contents of the two exhibits did not support the case of the Respondent and they rather validated the defence of the Appellant.

Counsel stated that the lower Court failed to ascribe probative value to the evidence led by Appellant in support of its defence and counterclaim and that if the lower Court had considered the case made out by the Appellant it would have seen that the evidence of the witness of the Appellant was supported and reinforced by documentary evidence, thus, making it more credible and he referred to the case of Okpo Vs Umet (1998) 7 NWLR (Pt 558) 451. Counsel stated that the evidence of the Appellant’s witness on

material facts was not contested or disparaged under cross examination and he referred to the cases of Amadi Vs Nwosu (1992) 5 NWLR (Pt 241) 273 and Daggash Vs Bulama (2004) 14 NWLR (Pt 892) 144 in asserting that the non-cross examination of the witness on those facts amounted to an acceptance of the facts as true. Counsel traversed through the evidence of the two witnesses of the Respondent and stated that the evidence of the second witness of the Respondent was contradictory and that the lower Court was enjoined to reject such contradictory evidence and it could not pick and choose which part to believe and which part to reject and he referred to the cases of Ekweozor Vs Reg. Trustees SACN (2014) 6 NWLR (Pt 1434) 433 and Ezemba Vs Ibeneme (2000) 10 NWLR (Pt 674) 61.

Counsel also traversed through the contents of the documentary evidence tendered by the Appellant and stated that none of them was faulted or impugned by the Respondent and that they contained the true facts of the events of the transaction that led to the dispute before the lower Court. Counsel stated that the Respondent failed to call anyone from the forwarding agency that acted on its

behalf in the transaction as a witness to clarify who inputted the destination of the cargo on the shipping instructions and that this failure to call such a vital witness lent support to the case of the Appellant. Counsel stated that the lower Court was in error when it preferred the documentary evidence tendered by the Respondent on the transaction over and above the documentary evidence of the Appellant, in the face of the oral evidence led by the witnesses to the parties, and he traversed through the reasons given by the lower Court for the preference and stated that the reasons were fraught with errors. Counsel stated that the lower Court did not properly assess the evidence led by the parties and did not ascribe proper probative value to them in making its findings and he referred to the case of Adeyeye Vs Ajiboye (1987) 3 NWLR (Pt 61) 432.

interfere with the findings made by a lower Court unless such findings are shown to be perverse and he referred to the case of Olaniyan Vs Oyewole (2011) 14 NWLR (Pt 1268) 445. Counsel referred to the cases of Savannah Bank of Nig Plc Vs Central Bank of Nigeria (2009) 6 NWLR (Pt 1137) 237 and Osuji Vs Ekeocha (2009) 16 NWLR (Pt 1166) 81 in defining what amounts to a perverse decision. Counsel stated that an appraisal of the findings made by the lower Court vis-a-vis the evidence led by the parties, as was done above, shows that the findings were not supported by the evidence and were thus perverse.

Counsel stated further that there was evidence before the lower Court that the Appellant was a shipping agent, a local agent to a disclosed foreign principal, Mediterranean Shipping Company SA, and that since the Appellant was not a party to the contract of carriage of the consignment, it should not have been made personal liable for any dereliction in the carriage of the goods and he referred to Article 10 of the United Nations Convention on Carriage of Goods by Sea (Ratification and Enforcement) Act 2005. Counsel stated that the role of the Appellant

on the accepted evidence was to generate and send a booking confirmation based on the shipping instructions received in respect of the shipment and that at common law an agent of a disclosed principal cannot assume liability for any act, default or omission of its principal and he referred to the case of Allied Trading Co Ltd Vs GBN Line (1985) 2 NWLR (Pt 15) 74. Counsel stated that it was presumptuous of the lower Court to have held that the Appellant, as agent of a disclosed principal, acted outside the scope of its authority when there was no evidence of the scope of authority delegated to the Appellant by its principal before the lower Court.

Counsel also contended that the lower Court ought not to have granted the claims of the cost of the cargo of charcoal and for interest on the sum as the Respondent led no credible evidence to show its entitlement to them and he referred to the case of Bendel Feed & Flour Mill Ltd Vs NIMB Ltd (2000) 5 NWLR (Pt 655) 29. Counsel concluded his submissions by urging the Court to resolve the second issue for determination in favour of the Appellant.

In his response arguments, Counsel to the Respondent stated that the findings made by the lower Court were unassailable in the face of the unchallenged, uncontroverted and credible evidence led at the trial to show that the Appellant unilaterally shipped the Respondent’s cargo to a wrong consignee and destination without having recourse to the shipping instructions and documents of the transaction. Counsel stated that the reliance placed by the lower Court on the documentary evidence, Exhibits AD10 and AD11, was proper and that the contents of the documents and their essence was confirmed by the defence witness under cross-examination. Counsel stated that on the agreed evidence between the parties in the lower Court the date of the booking of the shipment was confirmed via the booking platform, 27th of March, 2014, and the booking reference number tallied with the contents of Exhibit AD11. Counsel stated that the defence witness admitted in his evidence that Exhibit AD11 was the booking confirmation for the shipment and that the Appellant was the author of Exhibit AD11 and that this amounted to an admission on the part of the witness on the authorship of the document and that there was thus no onus on the

Respondent to lead further evidence to prove the fact and he referred to the cases of Daggash Vs Bulama (2004) 14 NWLR (Pt 892) 144 and Daramola Vs AG, Ondo State (2000) 4 FWLR (Pt 6) 997, amongst others.

Counsel stated that these pieces of evidence of defence witness negated the averment of the Appellant in its pleadings and the submission of its Counsel that the identity of the author of Exhibit AD11 is the INTRRA Support Center and not the Appellant and the submissions of Counsel, no matter how brilliant and persuasive, can never metamorphose into evidence and he referred to the cases Nigeria Arab Bank Plc Vs Femi Kane Ltd (1995) 4 NWLR (Pt 387) 100, Chukwujekwu Vs Olalere (1992) 2 NWLR (Pt 221) 86. Counsel stated that there was clear evidence before the lower Court that the Appellant shipped the consignment without adhering to the shipping instructions contained on the documents of transaction to Hamburg in Germany and that the shipping instruction being attributed to the Respondent is an afterthought. Counsel stated that Exhibit AD10 shows that the consignee sent the booking request to the Appellant with instructions not to change the booking request

without a written confirmation from the consignee and thus the Appellant decision to ship the consignment to Germany was unilateral and against the instructions.

Counsel stated that with the admission by the defence witness that it was the Appellant that prepared the shipping instructions, Exhibit AD11, and which boldly carried the destination of the consignment as Belgium, all the denials and averments made by the Appellant in its defence go to nothing and are mere afterthoughts because, Exhibit AD11 was the instruction that the Appellant was to comply with in shipping the consignment. Counsel stated that what the Appellant sought to do was to approbate and reprobate and that it cannot be allowed to do that and he referred to the cases of Ude Vs Nwara (1993) 2 NWLR (Pt 278) 638, Mbanaso Vs Offor (2012) LPELR 19683(CA) and Adetoro Vs UBN Plc (2007) All FWLR (Pt 396) 590. Counsel stated that additionally there was documentary evidence before the lower Court that Wladyslaw Skrobot of Germany, the consignee to whom the Appellant wrongly shipped the consignment to, had notified the Appellant that it was no longer receiving consignments of charcoal and that no further consignment should be shipped to it.

Counsel stated that the lower Court was correct in not giving any probative value to the documentary evidence tendered by the Appellant because it was obvious from their faces that they were doctored documents, lacked the essential details, contained misinformation and were afterthoughts designed to obscure the liability of the Appellant for the wrong shipment of the Respondent’s consignment. Counsel stated that the two witnesses of the Respondent denied knowledge of the documents tendered by the Appellant and which the Appellant claimed the Respondent’s forwarding agent issued to it and that this shifted the onus to the Appellant to prove that the documents were genuine and to connect them to the Respondent and he referred to the cases of Alao Vs Kure (2000) FWLR (Pt 6) 889, Oyovbiare Vs Omamurhonu (2001) FWLR (Pt 68) 1129. Counsel stated that the Appellant led no credible evidence to prove the authenticity of the documents and that the documents emanated from the Respondent, through its agent. Counsel stated further that the documents on the shipment tendered by the Respondent predated those

tendered by the Appellant and the documents tendered by the Respondent was specific in directing the Appellant not to accept any change in booking without a written confirmation.

Counsel stated that the findings made by the lower Court were arrived at after a proper evaluation of the evidence led by both parties and were predicated on the failure of the Appellant to lead credible evidence in support of its case on the pleadings to dislodge the case of the Respondent, after the lower Court had found that the Respondent successfully discharged its burden of proof. Counsel stated that the duty of a trial Court is to evaluate all the evidence before it and come to a conclusion on a preponderance of evidence led by the parties and that this was exactly what the lower Court did in the present instance and he referred to the cases of Okwara Vs Okwara (1997) 11 NWLR (Pt 527) 160 and Attorney General of Oyo State Vs Fairlakes Hotel Ltd (1989) 5 NWLR (Pt 121) 255.

Counsel further stated that the fact of the Appellant being agent of a disclosed principal did not obviate the fact that the Appellant can be held liable if it is found to have acted outside the

scope of its authority and that a disclosed principal is not bound by the act of his agent outside the agent’s authority and he referred to the cases of Iyere Vs Bendel Feed and Flour Millis Ltd (2009) 37 NSCQR 290, Ezenwa Vs Ekong (1999) 11 NWLR (Pt 625) 5. Counsel stated the evidence of the defence witness under cross-examination was that it was the Appellant, and not its principal, that generated Exhibit AD11, the booking confirmation, which showed the destination of the shipment as Belgium, and not Germany, and that as such, it was the Appellant that was responsible for the wrong shipment of the consignment to Germany, instead of Belgium. Counsel stated that the law is that a person is liable for his engagement even though he is acting for another, unless he can show that by the law of agency he is to be held to have expressly or impliedly negative his personal liability and he referred to the case of Asafa Foods Factory Vs Alraine Nig Ltd (2002) 12 NWLR (Pt 781) 353.

Counsel also stated that the Respondent led credible evidence to prove its entitlement to the claims granted in its favour by the lower Court, contrary to the assertion of the

Appellant’s Counsel, and that the cost of the consignment was clear on the face of the documents tendered and that it is an entrenched principle of law that the basis for the award of interest is the fact that a person has been kept out of his money for a period of time and that the other party who has had use of the money ought to compensate the owner for the deprivation and he referred to the cases of International Offshore Construction Ltd Vs S.I.N. Ltd (2003) 16 NWLR (Pt 845) 157, Kano Textile Printers Ltd Vs Tukur (1999) 2 NWLR (Pt 589) 78 and Habib Nigeria Bank Ltd Vs Ochete (2001) 3 NWLR (Pt 699) 114. Counsel concluded his arguments by urging the Court to resolve the second issue for determination in favour of the Respondent.

The complaints of the Appellant under this issue for determination are three-fold – (i) that the lower Court did not properly evaluate the evidence led by the parties; (ii) that the lower Court ought not to have found it liable as it was an agent of a disclosed principal; and (iii) that the Respondent did not lead credible evidence to support the reliefs they claimed.

On evaluation of evidence, it is settled law that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353.

so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Shingi Vs Bandado (2018) LPELR 46549(CA), State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289, MTN Vs Corporate Communication Investment Ltd (2019) LPELR 47042(SC).
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru

(2011) 15 NWLR (Pt 1270) 217, State Vs Sani (2018) 9 NWLR (Pt 1624) 278. Therefore, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.

The question that arises is – what are the contentions of the Appellant against the evaluation of evidence and findings made by the lower Court? The case of the Respondent was that it instructed the Appellant to ship its consignment of charcoal to Belgium, but, contrary to the instructions, the Appellant caused the consignment to be wrongly shipped to Germany. The Appellant countered that its instructions from the Respondent was to ship the consignment to Germany and it caused same to be shipped to Germany.

In deliberating on the respective cases presented by the parties, the lower Court stated in the judgment thus:
“From the evidence before the Honorable Court, a foreign shipment is initiated by a booking request instruction being made in INTRRA platform on the internet to the shipping agent (in this case the Defendant). The shipping request indicates the date the request was made, the name of the consignee and the intended destination of the consignment. Upon the receipt of the data imputed in the INTRRA Platform, the Defendant will now send a mail that they have gotten the information and it is the same Defendant that will prepare the booking confirmation based on the instruction given.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Counsel to the Appellant did not contest this finding and he conceded in his brief of arguments that the finding reflected the true position of the evidence led by the parties. The lower Court continued its deliberations thus:
“It is therefore established that a booking request comes before a booking confirmation and DW1, the only Defendant’s witness, admitted under cross-examination that the Defendant prepared the booking confirmation which he identified to be Exhibit AD11. DW1 further stated that Exhibit AD11 contains the address of the importer and the destination of the shipment as well as the booking reference number which once generated will be used throughout the transaction including the release of the container.
Exhibit AD11 is the Booking Confirmation and on the face of the exhibit it is apparent that it was processed by INTRRA on Thursday, 27th of March, 2014 at 13.45 GMT. Item 7 at page 4 of Exhibit AD11 shows the consignee and contract party to be Carbobois-Green Holding. The entry of consignee at page 8 of the exhibit further confirms this. Exhibit AD11 being the booking confirmation was done pursuant to a booking request.

The said booking request was admitted in evidence as Exhibit AD10. Exhibit AD10 is dated 24th March, 2014 and the consignee on the face of the exhibit is the same Green Holding/Carbobois and the goods indicated to be one container 40ft HC charcoal in bulk.
Exhibits AD10 and AD11 clearly shows that shipping instructions was issued to the Defendant for a 40ft container of charcoal to be delivered to Carbobois-Green Holding in Belgium and by the Defendant’s own showing through the evidence of DW1, the same Defendant issued the booking confirmation (Exhibit AD11) reiterating the Plaintiff’s claim that the consignment was to be shipped to Belgium not Germany.
There is no doubt that the evidence of DW1 under cross examination that the Defendant prepared the booking confirmation which shows the intended destination to be Belgium is an admission by the Defendants that they knew that the destination of the shipment was not Germany but Belgium. An admission is a statement, oral or written (express or implied) which is made by a party or his agent to a civil proceedings and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement …”

Counsel to the Appellant contended against these findings of the lower Court on the ground that there was disparity between the consignment described on Exhibit AD 10, 40ft HC Charcoal, and that stated on AD11, general cargo, and that as such they were not related to each other. Counsel to the Appellant agreed that Exhibit AD11, being a booking confirmation, must have been issued pursuant to a booking request. Counsel did not contest that the defence witness admitted under cross examination that Exhibit AD11 was authored by the Appellant, contrary to the case of the Appellant that it was authored by the INTRRA Support Center. The only booking request before the lower Court, and to which Exhibit AD11 was related, was Exhibit AD10. The Respondent led evidence that Exhibit AD11 was issued pursuant to Exhibit AD10 and the Appellant did not produce any other booking request in response to which it authored Exhibit AD11. Exhibit AD 10, booking request, was made on the 24th of March, 2014, while Exhibit AD11, the booking confirmation, was made on the 27th of March, 2014. The material

facts on the two documents, such as name of consignee, destination of shipment, booking reference number, were the same. The only logical inference and deduction from these pieces of evidence is that the Appellant authored Exhibit AD11 in response to Exhibit AD10. This is an inference and deduction that the lower Court was entitled to draw and make – Okonkwo Vs Kpajie (1992) 2 NWLR (Pt 226) 633, Akpan Vs Bob (2010) 7 NWLR (Pt 1223) 421, Agi Vs Access Bank Plc (2014) 9 NWLR (Pt 1411) 121, Ibrahim Vs Gwandu (2015) 5 NWLR (Pt 1451) 1. The difference in the description of the consignment on the two documents, alluded to by Counsel to the Appellant, was thus mere semantics, and not material.

Additionally, it is settled law that where a transaction is made up of a series of documents, the documents must be read as a whole, and not parts in isolation, and that the different parts of the documents must be interpreted in the light of all the documents and an effort must be made to achieve harmony amongst the different parts – Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ 116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400,

Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2 NWLR (Pt 1071) 378, Nigerian Army Vs Aminu-Kano (2010) 5 NWLR (Pt 1188) 429. Applying this principle to Exhibits AD10 and AD11, the conclusion drawn by the lower Court that they relate to each other cannot be faulted.

The lower Court deliberated further on the evidence led by the parties thus:
“Defendant relied on Exhibit KO12 which is the Export Documentation Form and the instructions generated from the Plaintiff’s INTRRA account on 11th of June, 2014 to argue that the Port of discharge from the instructions is Hamburg, Germany with the consignee as WLADYSLAW SKROBOT SKIDNIOW 206. However, Exhibit KO12 juxtaposed with Exhibits AD10 and AD11 will reveal that little or no weight should be attached to Exhibit KO12. Exhibits AD10 and AD11 are dated 24th of March, 2014 and 27th of March, 2014 respectively while Exhibit KO12 is dated 11th of June, 2014, meaning the former exhibits are first in time. On the face of Exhibit AD10 (the Booking Request) there is an instruction to the shipping agent not to accept any change in booking without written confirmation. The Consignee

in Exhibit AD10 is Green-Holding/Carbobois as confirmed on page 4 of Exhibit AD11 which was generated by the Defendant. No documentary evidence was tendered in this proceeding evidencing what Exhibit KO12 purports to convey, that is a change of the consignee from Green-Holding/Carbobois in Belgium to Wladyslaw Skrobot Skidniow 206 in Hamburg Germany.
Defendant did not plead or lead evidence that there was any such change of the destination of the consignment from Belgium to Germany. Defendant maintained from the onset that the input on the Plaintiff’s INTRRA account showed that the destination of the consignment was Germany and relied on Exhibit KO12. However, Exhibit KO12 is dated 11th June, 2014 and if the evidence of DW1 under cross examination is anything to go by to the effect that the Defendant prepared the booking confirmation (i.e. Exhibit AD11 which is dated 27/3/2014), then the Defendant’s case will crash like a pack of cards because the same Exhibit AD11 which the Defendant prepared showed the destination of the consignment to be Belgium, the consignee being Carbobois – Green Holding …

Therefore the contention of the Defendant that the subject matter of this suit only arose in June, 2014 and that the shipping instruction was only received on 11th of June, 2014 relying on Exhibit KO12 cannot hold water. This is because, PW2 confirmed during cross examination and re-examination that the booking was done in March, 2014 and this piece of evidence was affirmed by DW1 under cross-examination when he owned up to Exhibit AD11 which he said was produced by the Defendant and which is dated 27th of March, 2014. How then can the Defendant make a volte-face and say that the instruction given by the Plaintiff was for shipment to Germany and not Belgium, and how can Defendant in all fairness say the booking instruction was only received on the 11th of June, 2014. If that is true, is there any booking confirmation done in June, 2014 other than Exhibit AD11? Where is it? Why was it not tendered in evidence? …

The lower Court concluded its deliberations thus:
“I am convinced from the evidence from the evidence before the Honorable Court that the Plaintiff has established through credible evidence that the Defendant unilaterally shipped the Plaintiff’s

consignment to a wrong destination outside the clear and unequivocal instructions given to it. The Plaintiff discharged the burden of proof placed on it which now shifted to the Defendant. Unfortunately, the Defendant has not been able to explain convincingly to the Court why the shipment was made to a wrong destination and contrary to the instructions of the Plaintiff.
On the whole, I have placed the evidence of the Plaintiff and that of the Defendant on the imaginary scale of justice and the scale of justice tilts in favour of the Plaintiff. The quality and probative value of the evidence led by the Plaintiff outweighs that of the Defendant …”

Counsel to the Appellant contended against these findings by attacking the quality of evidence led by the Respondent in support of the making of the booking request and the booking confirmation, Exhibits AD10 and AD11. Counsel pointed to contradictions in the evidence of the second witness of the Respondent and to the failure of the Respondent to call an officer from a forwarding agency that was said to have made the booking. Counsel to the Appellant either failed to understand the significance

of the evidence of the defence witness under cross examination or deliberately sought to downplay it. The witness admitted under cross examination that Exhibit AD11 was the booking confirmation prepared and authored by the Appellant, and he was not taken up on the point under re-examination.

It is settled law that where a witness called by a defendant gives evidence which supports the claimant’s case and the defendant does not treat him as a hostile witness, the evidence of such witness must be treated as an admission upon which the claimant is entitled to rely as further reinforcement of his case – Okafor Vs Idigo (1984) 1 SCNLR 481, Adebambo Vs Olowosago (1985) 3 NWLR (Pt 11) 207, Akintola Vs Solano (1986) 2 NWLR (Pt 24) 598, Alikor Vs Ogwo (2010) 5 NWLR (Pt 1187) 281. With this admission, the question of whether or not the Respondent led credible evidence to prove the making of Exhibit AD11 becomes otiose and unnecessary. The questions of contradictions in the evidence of the second witness of the Respondent and of the failure of the Respondent to call a particular witness become matters for tales to be told by the moonlight.

It is apparent from the above excerpts of the judgment that the lower Court followed the time honored procedure laid down in the case of Mogaji Vs Odofin (1978) 4 SC 91 in carrying out the evaluation of the evidence led by the parties. The lower Court placed the totality of the testimonies of both parties on an imaginary scale; one side of the scale contained the evidence of the Respondent and the other side the evidence of the Appellant. The lower Court identified the portions of the evidence that were relevant, admissible, credible and conclusive and it weighed them together to see which side was heavier than the other, more probable than that adduced by the other party. The lower Court thereafter applied the relevant laws to the facts or evidence adduced, in making its findings and coming to its decision. It is evident that the lower Court understood the issues it had to resolve in the case and it resolved them and reached its decision only on the basis of what was in issue and what had been demonstrated upon the evidence by the parties and supported by law. The findings and the decision of the lower Court cannot be said to be perverse in these circumstances and

this Court has no basis for interfering with such lucid evaluation of evidence. The complaint of the Appellant on evaluation of evidence was totally unfounded.

With respect to the contention of the Appellant that it was agent of a disclosed and as such should have been found liable, this Court must say that apart from asserting that it is a shipping agency who acts as local agents to foreign ship owners, the Appellant did not contest on the pleadings that it was not liable to the Respondent because it was an agent to a disclosed principal. It is correct that the contention was raised and argued in the final addresses of Counsel and it was pronounced upon by the lower Court. However, it is an elementary principle of litigation that parties are bound by their pleadings and are not allowed to raise contentions of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does substitute for pleadings – Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143(SC). Similarly, the Courts, both trial and appellate, are bound by the

pleadings of the parties and should not consider a contention not raised by the parties on the pleadings – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388. The Appellant having not pleaded the contention of its non-liability by reason of being an agent of a disclosed principal, it could not raise same at the address stage in the lower Court and where raised, the contention ought to have been discountenanced by the lower Court. The contention should ordinarily be ignored by this Court.

Going forward on the contention for purposes of completeness, this Court must say that the contention is baseless. The Appellant filed a statement of defence and a counterclaim. Part of the prayers sought on the counterclaim were (i) the sum of €14,000 (Euros) being the accrued storage charges incurred by the Appellant and debited into its account as at December, 2014 for the delayed return of its container collected by the Respondent; (ii) the sum of €7,440 (Euros)

being the costs incurred as a result of the abandonment and/or failure to clear the shipment at the port of discharge; and (iii) the payment of all sums due to the Appellant as accruing demurrage as specified in the Appellant’s tariff. The Appellant pleaded that it was personally debited with the costs of storage and demurrage incurred at the port of discharge in Hamburg, Germany by its principal at the Port of discharge in Germany by reason of the rejection of the container of charcoal by the consignee, and that it is entitled to be indemnified for these costs by the Respondent.
In other words, the Appellant admitted in the pleadings that it was personally liable for the fall outs arising from the shipment of the consignment of Respondent to Germany, and not its disclosed principal. It is settled law that facts admitted in the pleadings are deemed established and they need no further proof – National Investment & Properties Co Ltd Vs The Thompson Organization Ltd (1969) LPELR 25547(SC), James Vs Mid-Motors Nigeria Ltd (1978) LPELR 1593(SC), Ajuwon Vs Akanni (1993) LPELR 311(SC). Having admitted that it was personally liable for the fall

outs of the shipment of the consignment to Germany, and not its disclosed principal, it is preposterous for Counsel to the Appellant to contend that the lower Court should not have found it personally liable for the claims of the Respondent also predicated on the shipment of the consignment to Germany. A party is not allowed to approbate and reprobate. The contention is thus without merit.
This takes us to the third contention of Counsel to the Appellant; that the Respondent did not lead credible evidence to support the reliefs it claimed. The claims of the Respondent were for (i) a declaration that the Appellant’s unilateral decision to ship the Respondent’s consignment without instruction and contract document was wrong and unlawful; (ii) the sum of €4,140 (Euros) being the cost of the consignment wrongly shipped to Hamburg Germany by the Appellant and interest on the said sum from 1st of June, 2014 at 22% per annum until the whole sum is liquidated; and (iii) cost of the action in the sum of N450,000.00. It is clear from the above reproduced excerpts of the deliberations in the judgment of the lower Court that the Respondent led cogent

evidence to sustain the first claim it sought for. On the second and third claims, the Respondent pleaded that the cost of the consignment wrongly shipped was €4,140 (Euros) and that it paid the sum of N300,000.00 to its Solicitors as a deposit against professional fees for the prosecution of this case. The Appellant did not contest these assertions in its response pleadings. The first witness of the Respondent led evidence in proof of these claims in the light of the pleadings and he was not cross examined thereon, meaning that the Appellant accepted the truth of his evidence – Akinwunmi Vs Idowu (1980) 3-4 108, Bello Vs Eweka (1981) 1 SC 101, Gaji Vs Paye (2003) 8 NWLR (Pt 823) 583.

In granting the Respondent the cost of the consignment, the lower Court stated in the judgment thus:
“The invoice attached to Exhibit AD3 shows the value of the Plaintiff’s consignment to be €4,140 (Euros) … In my view it is adequate proof of the value of the Plaintiff’s consignment wrongly shipped to Germany.”

This Court agrees that the invoice is adequate proof of the cost of the consignment in the circumstances. On the claim for N450,000.00 as costs of the action, our laws recognize that expenses incurred on services of counsel are reasonably compensated. This point was made by the Supreme Court in Rewane Vs Okotie-Eboh (1960) SCNLR 461, when it stated that “costs will therefore be awarded on the ordinary principles of genuine and reasonable out of pocket expenses and normal counsel cost usually awarded for a leader and one or two juniors.” Where the amount claimed is reasonable and can be subsumed under the heading of costs of the action, mere pleading of payment of the fees and leading evidence thereon is sufficient – International Offshore Construction Ltd Vs Shoreline Liftboats Nig Ltd (2003) 15 NWLR (Pt 845) 157, Naude Vs Simon (2013) LPELR 20491(CA), Ajibola Vs Anisere (2019) LPELR 48204(CA). The amount of N450,000.00 claimed as costs of the action was reasonable and the oral evidence led by the Respondent in proof thereof was sufficient.

The Respondent also claimed interest on the cost of the consignment at the 22% per annum from the 1st of June, 2014 until liquidation of the whole sum. In other words, the Respondent claimed 22% per annum

both as pre-judgment and post judgment interest. These are the two types of interest usually awarded by a Court; pre-judgment interest otherwise known as “interest as of right” and post-judgment interest otherwise known as “discretionary interest, which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules – Egbor Vs Ogbebor (2015) LPELR 24902(CA), Shedowo Vs Attorney General, Lagos State (2019) LPELR 46886(CA).

Now, pre-judgment interest is not granted as a matter of course and a party claiming such interest should plead and prove facts entitling him to its award. It may be claimed as of right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of fiduciary relationship – Ekwunife Vs Wayne (WA) Ltd (1989) 5 NWLR (Pt 122) 422 at 445, Sanni Abacha Foundation for Peace and Unity Vs United Bank for Africa Plc (2010) 17 NWLR (Pt 1221) 197. The Supreme Court in the case of AG Ferrero & Co. Ltd. Vs Henkel Chemicals (Nig.) Ltd. (2011) 13 NWLR (Pt.1265) 529 at 608 stated thus:

“The principle relevant to the issue under consideration has been laid down in a number of cases thereby becoming a settled law that a claim for prejudgment interest may be made by a plaintiff as a right where it is either expressly provided for in or is contemplated by the agreement between the parties or under a mercantile custom or under a principle of equity such as breach of fiduciary relationship. It follows that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest but the basis of the entitlement-either by statutes or contract/agreement between the parties, or mercantile custom or principle of equity such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the fact relevant to the claim. The relevant facts must be pleaded, as facts not pleaded goes to no issue.”

The Respondent pleaded that after the wrong shipment of the consignment to Hamburg, Germany, it held a meeting sometime with the Appellant in December, 2014 to resolve the issue and whereat it was agreed that the Appellant would sell the container of charcoal wrongly shipped

to Germany and pay the cost, €4,140 (Euros) to it and that, consequent on the agreement, it authored and sent to the Appellant via email a letter authorizing the sale of the container of charcoal in Germany and that the Appellant sold the goods and has refused to pay over the cost to it, as agreed, despite repeated demands. The Appellant did not deny this assertion and it only said that the sale of the consignment was done to assist the Respondent in mitigating its losses. The first witness of the Respondent gave evidence in proof of the assertion and he was not cross examined thereon.

This meant that the Appellant had been in possession of the sum of €4,140 (Euros) belonging to the Respondent, being the cost of the consignment sold by the Appellant on the instruction of the Respondent, since December, 2014 and it had failed to pay back the money despite repeated demands. It is a principle of equity that 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 – Nigerian General Superintendent Co. (NGSC) Ltd Vs Nigerian Ports Authority (1990) 1 NWLR (Pt.129) 741, Adeyemi Vs Lan and Baker (Nig) Ltd (2000) 7 NWLR (Pt 663) 33 pg 48, Petgas Resources Ltd. Vs Louis Mbanefo (2007) 6 NWLR (Pt 1031) 545 at 559, Stabilini Visinoni Ltd Vs Metalum Ltd (2008) All FWLR Part 409 Page 503 at 516, NPA Vs Aminu Ibrahim & Co (2018) LPELR 44464(SC). The Respondent thus made out a credible case of entitlement to pre-judgment interest in equity, but from December, 2014 and not from June 2014. The Appellant did not complain about the rate of interest awarded.
With regards to post judgment interest, its award is entirely discretionary and it is awardable to run from the date of delivery of judgment and evidence need not be given for it to be awarded and the power to award it is usually granted by statute on the Court to do in the exercise of discretion – Stabilini Visioni Ltd Vs Metalum Ltd (2008) 9 NWLR (Pt 1092) 416, Lamurde Local Government Vs Kaka (2010) 10 NWLR (Pt 1203) 574, Amber Resources Nigeria Ltd Vs Century Energy Services Ltd

(2018) LPELR 43671(CA). The power to award post judgment interest rate is contained in the Rules of Court of the High Courts and of the Federal High Court, and also in some High Court Laws and being statutory, a Court cannot award more than the stated maximum rate of interest – Churchgate Nigeria Ltd Vs Uzu (2005) LPELR 11404(CA), First Bank of Nigeria Plc Vs Davies (2017) LPELR 43556(CA). The lower Court, the Federal High Court, is empowered by Order 23 Rule 5 of the its Rules of Court to award post judgment interest not exceeding 10% per annum on any judgment. The award of 22% per annum as post judgment interest by the lower Court was in excess of the maximum rate of interest it is empowered to award. The post judgment interest will be amended to reflect the allowable rates by the Rules of Court. The contention of the Appellant that the Respondent did not lead credible evidence in proof of the reliefs sought is misconceived.

All in all, the second issue for determination is resolved against the Appellant. This takes us to the third issue for determination.

Issue Three
Whether the lower Court breached the Appellant’s right to fair hearing in dismissing its counterclaim.
In arguing this issue for determination, Counsel to the Appellant reproduced the counterclaim of the Appellant and referred to the oral and documentary evidence led at the trial and stated that the lower Court peremptorily dismissed the counterclaim without reviewing or considering the evidence led. Counsel stated that this breached the fundamental right of the Appellant to make a case in Court and the corresponding duty of the lower Court to ensure that the case presented is adequately considered before judgment is pronounced and he referred to the cases of Tunbi Vs Opawole (2000) 2 NWLR (Pt 644) 273, Obeta Vs Okpe (1996) 9 NWLR (Pt 473) 401 and Onagoruwa Vs IGP (1991) 5 NWLR (Pt 193) 593. Counsel stated that the doctrine of fair hearing postulates that a Court must give a dispassionate consideration to the cases presented to it by litigants by examining the issues raised, the evidence offered in proof or rebuttal of same, evaluate such evidence and submissions before resolving the issues in controversy. Counsel stated that the lower Court failed to be guided by these tenets of fair hearing and that

the reason advanced for dismissing the counterclaim did not portray justice, but rather painted a semblance of bias in favour of the claims of the Respondent. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.

In response, Counsel to the Respondent traversed through the evidence led by the Appellant at the trial and stated that the lower Court was right to have dismissed the counterclaim of the Appellant and that the Appellant’s right to fair hearing was not breached in any way or form and there was nothing in the judgment suggesting that the counterclaim was not thoroughly considered by the lower Court. Counsel urged the Court to resolve the third issue for determination in favour of the Respondent.

In dismissing the counterclaim, the lower Court noted in the judgment that the success or failure of the counterclaim was dependent on success or failure of the claims of the Respondent and it continued thus:
“The burden of proof of the counterclaim lies squarely with the Defendant. I have held earlier in this judgment that the Defendant/Counterclaimant is responsible for the wrong shipment of the

Plaintiff’s cargo to Germany instead of Belgium as evidence by Exhibit AD10 and AD11. The Defendant is the architect of its own doom and is solely responsible for the expenses incurred as a result of the wrong shipment including accrued storage charges and demurrage.
On the whole and in the light of the entire findings in this judgment, I hold that the Defendant’s counterclaim is frivolous and lacking in merit. The counterclaim is hereby dismissed.”
Now, the dispute between the parties in this matter was whether or not the Appellant wrongly and unilaterally shipped the consignment of the Respondent to Hamburg, Germany, instead of Belgium. The case of the Respondent was that the Appellant did so and it claimed for losses suffered by reason thereof. The case of the Appellant was that it did not do so and it counterclaimed for losses it suffered by the rejection of the consignment by the consignee in Germany. The claim and the counterclaim arose from the same transaction. One single trial was conducted for both claims and the facts and evidence used to prosecute the main claim were the same facts and evidence used to prosecute

the counterclaim. The evidence led at the trial was not compartmentalized into “evidence on the main trial” and “evidence on the counterclaim”. The tasks before the trial Court in such a circumstance were for it to identify the issues joined for resolution by the parties on the pleadings on the claim and on the defence and counterclaim, evaluate the evidence led by the parties, make findings on the issues joined and use the findings to come to a decision on the claim and on the counterclaim – Osagie & Ors Vs Obazee & Ors (2013) LPELR 21994 (CA), Ebibokefie Vs Tume (2018) LPELR 45620(CA).
It is commonsensical that, given the facts upon which the claim of the Respondent and the counterclaim of the Appellant were predicated, the grant of one would necessarily negate the grant of the other. Both of them could not be granted. In other words, a finding that the Appellant wrongly and unilaterally shipped the consignment of the Respondent to Hamburg, Germany, instead of Belgium will support the claims of the Appellant and remove ‘the wind from the sail’ of the counterclaim. The records of appeal show that the

Appellant and the Respondent were given uninhibited opportunities to present their respective cases and that the lower Court identified the issues joined for resolution by the parties on the pleadings on the claim and counterclaim, evaluated the evidence led by the parties and made findings on the issues joined. The lower Court found that the Appellant wrongly and unilaterally shipped the consignment of the Respondent to Hamburg, Germany, instead of Belgium and it granted the claims of the Respondent. This automatically sounded a death-knell for the counterclaim and the lower Court rightly pronounced that its findings on the claims of the Respondent doomed the counterclaim.
The law is that where the facts are intertwined and interwoven as regards a plaintiff’s action and a defendant’s counter claim, the success of the plaintiff’s claim would mean the failure of the defendant’s counter claim – Aunam (Nig.) Ltd Vs UTC (Nig) Ltd (1995) 4 NWLR (Pt 392) 753, Unokan Enterprises Ltd Vs Omuvwie (2005) 1 NWLR (Pt. 907) 293, 315 at 316, Ago Vs Federal Mortgage Finance Ltd (2013) LPELR 22820(CA), Digital Security Technology Ltd Vs Andi

(2017) LPELR 43446(CA), Ebibokefie Vs Tume (2018) LPELR 45620(CA), Iyua Vs Paul (2019) LPELR 47226(CA), Rikichi Vs Gambo (2019) LPELR 47676(CA). It is not correct that the lower Court peremptorily dismissed the counterclaim without reviewing or considering the evidence led. The doctrine of fair hearing postulates that a party to a cause must be given the opportunity to put forward his case fully and freely and to apply to the Court to hear any material witness and consider relevant documentary evidence with a view to reaching a fair and just decision in the matter – Ekiyor Vs Bomor (1997) 9 NWLR (Pt 519) 1.

It is clear from the records of appeal that the lower Court did not at any time throughout the proceedings breach, compromise and/or inhibit the Appellant’s right of fair hearing. The contention of the Appellant on the point is totally unfounded. The third issue for determination is resolved in favour of the Respondent.

In conclusion, this Court finds some merits in the appeal and the appeal is hereby allowed in part. The judgment of the Federal High Court sitting in Lagos delivered in Suit FHC/L/CS/711/2015 on the 22nd of November,

2017 by Honorable Justice J. K. Dagat is hereby affirmed, save for the award of 22% per annum as interest on the sum of €4,140 (Euros) from the 1st of June, 2014 until liquidation of the sum. This award of interest is hereby set aside and in its stead is substituted an award of interest at the rate 22% per annum on the sum of €4,140 (Euros) from December, 2014 until date of judgment and thereafter at the rate of 10% until the full sum is liquidated. The parties shall bear their respective costs on the appeal. These shall be the orders of the Court.

IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading the draft copy of the Lead Judgment of my learned brother, HON. JUSTICE HABEEB ADEWALE ABIRU, JCA and I am in total agreement with the reasoning and conclusion that this Appeal is allowed in part.

AMINA AUDI WAMBAI, J.C.A.: I had the privilege of reading before now the leading judgment of my learned brother, Habeeb Adewale Olumuyiwa Abiru, JCA. His lordship has adequately resolved all the issues in this appeal. I agree with his reasoning and conclusion that the appeal succeeds

in part only with regards to the 22% per annum interest wrongly awarded by the learned trial Judge. I abide by the consequential orders in the lead judgment.

Appearances:

Victor Ogude For Appellant(s)