ODUBAWO v. FSDH SECURITIES LTD
(2021)LCN/15505(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, March 12, 2020
CA/L/1205/2017
RATIO
WORDS AND PHRASES: MEANING OF A ‘WAIVER’
A waiver indicates an international and voluntary relinquishment of a know right, or such conducts as warrants an inference of the relinquishment of such right, seeCHIEF JOHN EZE V. DR. COSMAS IKECHUKWU OKECHUKWU & ORS (2002) LPELR-1194 (SC); NBC PLC V. UBANI (2013) LPELR 21902 (SC); OLUFEAGBA & ORS V. ABDUR – RAHEEM & ORS (2009) LPELR-2613 (SC). PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
CONTRACT: WHETHER COURTS MAY ADD TO OR SUBTRACT FROM THE TERMS OF A CONTRACT
It is trite, that the parties and Courts are bound by the terms of the contracting parties. In other words, the law does not allow either the parties or the Courts to add to or subtract from terms of the contract reached by way of consensus ad idem, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (supra); A-G, Rivers State v. A-G, Akwa Ibom State (2011), 8 NWLR (Pt. 1248) 31; JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 19 NWLR (Pt.1225) 495; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111; A. ,G. Ferrero & Co. Ltd. v. H. C. (Nig.) Ltd (2011) 13 NWLR (Pt. 1265) 592; Nwaolisah v. Nwabufo (2011) 14 NWLR (Pt.1268) 600; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278); P.M. Ltd. v. The “M. v. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Uwah v. Akpabio (2014) 7 NWLR (Pt. 1407) 172; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Canitec Int’l Co. Ltd. v. Solel Boneh (Nig.) Ltd. (2017) 10 NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35; Adedeji v. Obajimi (2018) 16 NWLR (Pt. 1644) 146; Okoro v. Okoro (supra); Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. PER OBANDE FESTUS OGBUINYA, J.C.A.
WHETHER A COUNTER-CLAIM IS AN INDEPENDENT AND SEPARATE ACTION
It is settled law, beyond any per adventure of doubt, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter- claimant in order to earn the favour of the Court, see Ogbonna v. A-G.., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsefik & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante int’l Ltd v. NDIC (2011)15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017)1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152; Okoro v. Okoro (supra); Atiba Iyalamu Savings & Loans Ltd. v. Suberu (2018) 13 NWLR (Pt. 1639) 387; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29. PER OBANDE FESTUS OGBUINYA, J.C.A.
JUDGMENT: DETERMINING WHEN A VERDICT OF COURT IS PERVERSE
A verdict of Court is perverse when; it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd.(2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112. PER OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE: DETERMINING THE CREDIBILITY OF A PIECE OF EVIDENCE
A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The Lower Court found, rightly in my view, that the evidence of the respondent, based on their qualitative nature, preponderated over those of the appellant’s. The net effect is that the respondent proved its case. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399. PER OBANDE FESTUS OGBUINYA, J.C.A.
WORDS AND PHRASES: ADMISSION
In the mind of the law, admission connotes a statement, oral or documentary, made by a party which suggests any inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v.Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Al-Hassan v. Ishaku (supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orianzi v. A.-G., Rivers State(2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247. PER OBANDE FESTUS OGBUINYA, J.C.A.
CONTRACT: COMPONENTS OF AN ENFORCEABLE CONTRACT
For there to be an enforceable contract, there must co-exist a precise offer, an unqualified acceptance, a legal consideration and intent to create legal relation. In other words, there must be the mutuality of purpose and intention between the contracting parties. In legal province, that translates to the meeting of the minds of the contracting parties, or consensus ad idem, on the terms of the agreement. In the view of the law, an offer, a definite indication by an offeror to an offeree that he is willing to conclude a contract on his proposed terms if accepted by the other, may be verbal, written or implied from the conduct of the offeror. Where an offeree does not accept an offer, then it mutates to a counter-offer – a statement by an offeree that has the legal effect of rejecting an offer and proposing a fresh offer to an offeror. These elementary and fundamental elements of a binding contract have been sanctified by the Supreme Court in sea of judicial authorities, see Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547; Neka B.B.B. Mfg. Ltd. Co. v. A.C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521; Chabasaya v. Anwasi (2010) 10 NWLR (Pt. 1201) 163; Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95; A.-G., Rivers State v. A.-G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31; Bilante Int’l. Ltd. v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; BPS Constr. & Engr. Co. Ltd. v. F.C.D.A. (2017) 10 NWLR (Pt. 1572) 1; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343 N.R.M.A & F.C. v. Johnson (2019) 2 NWLR (Pt. 1656) 247. PER OBANDE FESTUS OGBUINYA, J.C.A.
DUTY OF COURT: EVALUATION OF EVIDENCE
To begin with, the law has saddled a trial Court, like the Lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, seeMogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). PER OBANDE FESTUS OGBUINYA, J.C.A.
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Obande Festus Ogbuinya Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
ODUNAYO ODUBAWO APPELANT(S)
And
FSDH SECURITIES LIMITED RESPONDENT(S)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the correctness of the decision of the High Court of Lagos State, holden at Badagry (hereinafter addressed as “the Lower Court”) coram judice: M. A. Dada, J., in Suit No. LD/63/2010, delivered on 28th June, 2017. Before the Lower Court, the appellant and the respondent were the defendant and the claimant respectively.
The facts of the case, which transfigured into the appeal, are amenable to brevity and simplicity. The respondent, a capital market operator which carries on the business of finance and securities trading company, offered various loans and facilities, via letters dated 27th August, 2007 and 23rd November, 2007, to the appellant to the tune of N40M under certain terms and conditions. They were meant to meet the appellant’s liquidity needs. As a condition-precedent to the facilities, the appellant was required to charge and deposit with the respondent his securities/shares of various companies as collaterals for the loans. The appellant was, in addition, required to undertake, authorise and empower the respondent to sell, dispose or otherwise deal with those securities for the purpose of recovering any outstanding amounts on the facilities in the event of his breach or occurrence of certain contingencies such as reduction in their values. The appellant accepted the offers and the conditions attendant thereto. The appellant failed to liquidate his indebtedness arising from the facilities. The respondent exercised its right of sale of the appellant’s shares and recovered part of the debt leaving an outstanding balance of N6,209,488.35 (Six Million Two Hundred and Nine thousand Four Hundred and Eighty-eight and Thirty five kobo) which he refused to pay. Sequel to that refusal, the respondent beseeched the Lower Court, via a writ of summons filed on 14th January, 2010, and tabled against the appellant the following reliefs:
1. The sum of N6,209,488.35 (Six Million, Two Hundred and Nine Thousand Four Hundred and Eighty eight Naira, Thirty five kobo), being the outstanding indebtedness of the Defendant in respect of the various credit facilities advanced to the Defendant by the Claimant.
2. Interest on the sum of N6,209,488.35 (Six Million, Two Hundred and Nine Thousand Four Hundred and Eighty eight Naira, Thirty five kobo) only at the rate of 22% per annum agreed by the parties to this suit from the 10th day of December, 2009 till the date of judgment, and thereafter at the rate of 10% per annum until the final liquidation of the sum.
In an expected reaction, the appellant filed a statement of defence wherein he joined issue with the respondent and denied liability. In his amended statement of defence, he alleged that the respondent became indebted to him after its exercise of rights of sale of his securities. Consequently, he counter-claimed against the respondent and solicited the following reliefs:
i. An order against the claimant for the sum of N25,852,003.56 (Twenty Five Million Eight Hundred and Fifty two Thousand, Three Naira and Fifty six Kobo only) and to the Defendant being value of all the stock as at 24th November, 2008 as set out in paragraph 34 of the amended statement of defence.
ii. An order against the Claimant for immediate return of all shares/stocks set out in the schedule pleaded in paragraph 45(c) above or the sum of N1,070,629.63 (One Million and Seventy Thousand, Six Hundred and Twenty Nine Naira and Sixty Three Kobo Only) being value of the said shares as at 24 November, 2008.
iii. A sum of N85,927,209.10 (Eighty Five Million, Nine Hundred and Twenty Seven Thousand, two Hundred and Nine Naira and Ten Kobo Only) being expected net portfolio value as at 31/12/08 (calculated in line with representations made by the claimant) as set out in paragraph 45(c) above as paragraph 55(1) above. That is N111,779,212.66 (One Hundred and Eleven Million, Seven Hundred and Seventy Nine Thousand, Two Hundred and Twelve Naira and Sixty Six Kobo Only) less N25,852,003.56 (Twenty Five Million, Eight Hundred and Fifty-Two Thousand Three Naira and Fifty Six Kobo Only.
iv. Interest at the rate of 22% or such rate as the Court may deem it fit to award as from the 31st December, 2008 on the sums awarded in (i), (ii), & (iii) above in favour of the defendant until the whole sum is fully liquidated. This is so because the least the Defendant can earn is 15% fixed deposit on the whole sum. It could be higher in other investments.
Following the rival claims, the Lower Court had a full-scale determination of the case. In proof of the case, the respondent fielded a single witness: CW1. In disproof of it, the appellant testified as DW1. A galaxy of documents were tendered in evidence. At the closure of evidence, the parties, through their respective counsel, addressed the Lower Court in the manner required by law. In a considered judgment, delivered on 28th June, 2017, found at pages 852-860, volume II, of the record, the Lower Court granted the respondent’s claim and dismissed the appellant’s counter-claim.
The appellant was dissatisfied with the decision. Hence, on 25th August, 2017, he lodged a 7-ground notice of appeal, copied at pages 862-862B, volume II of the record and prayed this Court as follows.
1. That the decision of the Lower Court be set aside.
2. That judgment be entered in favour of the appellant as per the reliefs sought by way of counter-claim.
3. That the respondent bears the cost of the appeal.
Thereafter, the parties filed and exchanged their respective briefs of argument in line with the rules regulating the hearing of civil appeals in this Court. The appeal was heard on 27th January, 2020.
During its hearing, learned counsel for the appellant, Ademola Olowoyeye, Esq., adopted the appellant’s brief of argument, filed on 23rd November, 2017, and the appellant’s reply brief, filed on 17th January, 2019 and deemed properly filed on 27th January, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Festus Onyia, Esq., adopted the respondent’s brief of argument, filed on 7th June, 2010, and deemed properly filed on 27th January, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant’s brief of argument, learned counsel distilled three issues for determination, viz:
1. Whether the Honorable Trial Court was right in not paying any attention to the implication of the failure or refusal of the Respondent to bring a statement of account up to 19th January, 2010 as pleaded in the amended statement of defence and in line with the subpoena the Court issued and served on the Respondent.
2. Whether having regard to the pleadings, the evidence, oral and documentary the trial Court was right to have given judgment in favour of the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
3. Whether having regard to the pleadings and the evidence deposition and documentary before the Court the trial Court was right to have dismissed the Appellant’s counter-claim.
In the respondent’s brief of argument, learned counsel crafted a single issue for determination viz:
Whether, from the totality of the evidence adduced by the parties, the Court below was not right in law in entering judgment in favour of the Respondent and dismissing the Appellant’s Counter-Claim.
A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s issue can, conveniently, be subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues formulated by the appellant; the undoubted owner of the appeal.
Arguments on the issues
Issue one
Learned counsel for the appellant submitted that the appellant joined issue with the respondent on the claim. He referred to Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215 on the meaning of joinder of issue. He stated that from the respondent’s statement of account posted to the appellant, the debt was N441, 395. 66. He noted that the respondent had the burden to prove how it came to N6,209,488.35 under Section 131 and 133 of the Evidence Act, 2011. He observed that the respondent had a statement of account from October, 1999-2013 but presented only an account for 2009 thereby withholding evidence under Section 167 (d) of the Evidence Act, 2011.
On behalf of the respondent, learned counsel submitted that the transaction between the parties occurred between August and November, 2007. He explained that the respondent established before the Lower Court that the appellant’s statement of account from 1999 did not exist and not in its possession so that the provision of Section 167 (d) of the Evidence Act, 2011 was inapplicable. He relied on Musa v. Yerima (1997) 7 NWLR (Pt. 511) 27; PML Securities Co. Ltd. V. FRN (2015) 4 NWLR (pt. 1450) 551; Onwujuba v. Obienu (1991) 4 NWLR (Pt. 183) 16; Diamond Bank Ltd. v. Ugochukwu (2008) 1 NWLR (Pt. 1067) 1; A-G, Adamawa State v. Ware (2006) 4 NWLR (Pt. 970) 399.
Issue two
Learned counsel for the appellant enumerated the processes filed by the parties before the lower Court. He asserted that Exhibits 1 and 2 were the same with Exhibits D and D1. He reasoned that the Lower Court’s findings were perverse. He claimed that the Lower Court wrongly made case of admission against the appellant. He maintained that the respondent did not prove the debt.
For the respondent, learned counsel argued, per contra, that the appellant admitted the indebtedness in his statement of defence, statement of account and letters to the respondent. He added that admitted fact needed no proof. He cited Chukwu v. Akpelu (2014) 13 NWLR (Pt. 1424) 359; Section 128 (1) of the Evidence Act, 2011, Din v. African Newspapers (1990) 3 NWLR (pt. 139) 392; Daniel v. Iroeri (1985) 1 NWLR (Pt. 3) 541; Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96) 157. He highlighted the appellant’s admission in Exhibit 22 and that he failed to repay the debt. He noted that the Lower Court’s finding was not perverse to warrant interference by this Court. He referred to Shodiya V. State (2013) LPELR-20717 (SC); Olaniyan v. Fatoki (2013) LPELR 20936 (SC); Haruna v. A-G, Fed. (2012) 3 MJSC (Pt. 11) 45; Nwosu v. Board of Customs and Excise (1988) 5 NWLR (Pt. 93) 225; Alakija v.Abdulai (1998) 6 NWLR (Pt. 552 1; Ogbu v. Wokoma (2005) 14 NWLR (Pt. 944) 118.
Issue three
Learned counsel for the appellant contended that the Lower Court did not properly evaluate the evidence as required by law. He relied on Mogaji v. Odofin (1978) 4 SC 91; Okpa v. State (2017) 15 NWLR (Pt. 1587) 1. He took the view that Lower Court did not look at the pleadings and evidence. He highlighted the different aspects of the appellant’s case. He persisted that the respondent barely denied the appellant’s averments without rebuttal averment or evidence. He explained that the respondent did not deny the appellant’s pleaded projection and the disclaimer. He said the Lower Court made case for the parties inconsistent with the agreement. He posited that evidence of the appellant was unchallenged and ought be acted on. He referred to Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171. He claimed that the appellant discharged the onus of proof of his claims. He concluded that the appellant was not cross-examined on the counter-claim.
For the respondent, learned counsel submitted that the Lower Court properly evaluated the evidence. The learned counsel asserted that by the bases of contract, Exhibits 1 and 2, the appellant covenanted not to have claim against the respondent. He stated that the term was binding on the parties. He cited Ogunjimi v. The Incorporated Trustees T. Y. Danjuma Foundation (2018) LPELR-45 274 (CA; Teju Investment and Property Co. Ltd. v. Subair (2016) LPELR-40087 (CA). He noted that the Appellant changed its case in the Lower Court which was not allowed in law. He referred Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638. He repeated that the respondent discharged the burden of proof of the debt in the appellant’s statement of account. He referred to Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) 133; Okoye v. Nwankwo (2014) LPELR-23172(SC). He postulated that the loan agreement, Exhibits 1 and 2, could not be varied by oral evidence. He cited Section 128 (1) of the Evidence Act, 2011. Arjay Ltd. v. Airline Management Support Ltd. (2003) 2-3 SC 1; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283. He concluded that the appellant waived his right to question the outcome of the sale of his pledged shares by virtue of clause 12 of Exhibit. He relied on NBCI v. Integrated Gas (Nig) Ltd. (2005) 4 NWLR (Pt. 916) 617.
Resolution of the issues
An in-depth study of the issues, amply discloses that documentary evidence, furnished before the Lower Court, form an integral part of the crux of this appeal. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law donates concurrent jurisdiction to this Court and the Lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia(2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v Okafor (2017) 11 NWLR (Pt. 1577) 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V. (Nig.) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 163; Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal.
Now, the coast is cleared for me to attend to the issues in their numerical sequence of presentation by the contending parties. To this end, I will kick-off with the consideration of issue one. The meat of the issue, which suffers from ambiguity in its argument, is canalized within a narrow compass. It chastises the Lower Court’s failure to invoke the provision of Section 167 (d) of the Evidence Act, 2011 against the respondent vis-a-vis the appellant’s statement of account from October, 1999-2010/2013.
By virtue of the provision of Section 167 (d) of the Evidence Act, 2011 (former Section 149 (d) of the Defunct Evidence Act, 2004), the law allots to the Court the power/right to presume that where a party, in a possession of evidence, who ought to produce such evidence fails to do so, the evidence is presumed to be unfavourable to him, see: A.-G., Adamawa State v. Ware (2006) 4 NWLR (Pt. 970) 399; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Aremu v. Adetoro (2007) 16 NWLR (Pt. 1060) 244; S.S.GMBH v. T.D. Ind. Ltd (2010) 11 NWLR (Pt. 1206) 589; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; Onyekwuluje v. Animasaun (2019) 4; Union Bank v. Ravih Abdul & Co. Ltd. (2019) 3 NWLR (Pt.1659) 203.
It is decipherable from the phraseology and tenor of the provision, that it is not self-executory. In the other words, it is elastic in its application. It must be established before the Court that the evidence, which is presumed to be withheld, is in existence, capable of production, but not produced or being hoarded by the opponent, see Musa v. Yerima (supra). In his recalled vica voce testimony, which occupies pages 700-702, volume II of the mountainous record, the spinal cord of the appeal, the CW1 stated that: “We have a statement that covers from inception till December, 2009”. It stemmed from this concrete piece of evidence that the appellant’s statement of account from October, 1999 was not in existence nor in the possession of the respondent. The net effect is that one of the condition-precedents or prerequisites for the employment of the provision of Section 167 (d) of the Evidence Act, 2011 is glaringly absent. The appellant, in his infinite wisdom, starved the Lower Court of the relevant evidence showcasing the existence of that aspect of the appellant’s statement of account and, ipso facto, drained it of the necessary vires to deploy the provision against the respondent’s case.
In any event, the respondent availed the Lower Court with the relevant statement of account of the appellant, id est, Exhibit 29 which is located at pages 657 and 676, volume II of the wordy record. The Lower Court, rightly in my view, acted on it. In the presence/face of Exhibit 29, the absent statement of account, from October,1999, needlessly and unjustifiably cried for the attention of the lower Court. In sum, the Lower Court acted in due fidelity to the dictate of the law. Its finding did not, in the least, insult the law or the provision of Section 167(d) of the Evidence Act, 2011 to earn any censure from this Court. It will smell of judicial sacrilege to intervene in a judicial exercise that is not hostile to the law. In the end, I have no choice than to resolve the issue one against the appellant and in favour of the respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
Having dispensed with issue one, I proceed to settle issue two. The kernel of the issue, which is one of the foci of the appeal, is plain. It castigates the Lower Court’s evaluation of the evidence presented to it. Being the heartbeat of the appeal, it deserves extensive consideration.
To begin with, the law has saddled a trial Court, like the Lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, seeMogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). I have placed the decision of the Lower Court with the positions of law displayed above with a view to identifying their infractions or compliance.
The relationship, between the feuding parties, which gave birth to the matter which parented the case, was one of contract. By way of prefatory remarks, a contract is a legally binding agreement between two or more persons in which rights are acquired by one party in return for acts or forbearances of the other party. For there to be an enforceable contract, there must co-exist a precise offer, an unqualified acceptance, a legal consideration and intent to create legal relation. In other words, there must be the mutuality of purpose and intention between the contracting parties. In legal province, that translates to the meeting of the minds of the contracting parties, or consensus ad idem, on the terms of the agreement. In the view of the law, an offer, a definite indication by an offeror to an offeree that he is willing to conclude a contract on his proposed terms if accepted by the other, may be verbal, written or implied from the conduct of the offeror. Where an offeree does not accept an offer, then it mutates to a counter-offer – a statement by an offeree that has the legal effect of rejecting an offer and proposing a fresh offer to an offeror. These elementary and fundamental elements of a binding contract have been sanctified by the Supreme Court in sea of judicial authorities, see Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547; Neka B.B.B. Mfg. Ltd. Co. v. A.C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521; Chabasaya v. Anwasi (2010) 10 NWLR (Pt. 1201) 163; Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95; A.-G., Rivers State v. A.-G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31; Bilante Int’l. Ltd. v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; BPS Constr. & Engr. Co. Ltd. v. F.C.D.A. (2017) 10 NWLR (Pt. 1572) 1; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343 N.R.M.A & F.C. v. Johnson (2019) 2 NWLR (Pt. 1656) 247.
Now, the appellant’s chief grievance, indeed his trump card on the decisive issue, is that the respondent failed to prove its claim of debt, which germinated from the share-backed contractual facilities between the parties. In due loyalty to the desire of the law, I have consulted the elephantine records, especially at the residences of the pleadings of the parties which monopolise pages 679-689, 396-576, 281-295 and 310-334 thereof. I have perused them with the finery of a tooth comb. Interestingly, they are comprehension-friendly. It is discernible from them that the parties are consensus ad idem on the existence of the share-backed loan facilities, a common place in the capital market industry, between the parties. They are embodied in Exhibits 1, 2 and 3 located at pages 38-54, Volume 1 of the Record. In those exhibits, the appellant accepted, in toto, the respondent’s condition for the loan facilities including allocation of sale mandate, vis-a-vis his shares, in circumstances of his default or nose-dive in their values. In the eyes of the law, a contract of loan denotes a sum of money lent with interest, see Olowu V. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343. The casus belli in the action, which mothered the appeal, was the respondent’s claim of debt of N6,209,488.35k arising from the loan contracts.
The stubborn question, which begs for an answer, is: was the Lower Court right to hold that it was proved?. In this regard, I will reap from the concurrent jurisdiction of this Court and the lower Court on evaluation of documentary evidence already displayed at the dawn of this judgment. On this premise, I will invite Exhibit 22 which is of note here. It is the appellant’s letter/correspondence to the respondent dated 14th January, 2009. It is wrapped between pages 383 and 384, volume 1, of the prolix record. In the twilight of it, precisely at page 384, volume 1 of the record, the appellant, in unsolicited terms, proposed:
I propose that you sell all pledged shares in the first instance. Additionally, I will nominate other shares in the sum of N5,000,000.00 in full and final payment of all obligations to you.
To my mind, this excerpt extracted out, verbatim ac litteratim, from Exhibit 22, is a classic exemplification of an admission of indebtedness which signifies a state of owing money, or something owed, or debt to another person, see Barbedos and Ventures Ltd. v. FBN Plc (2016) 4 NWLR (Pt. 1609) 241.
In the mind of the law, admission connotes a statement, oral or documentary, made by a party which suggests any inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v.Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Al-Hassan v. Ishaku (supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orianzi v. A.-G., Rivers State(2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247.
Indubitably, the admission is in documentary, not in parol, form. Being documentary, it is permanent, incorruptible, inelastic, indelible and invincible. It is more reliable and dependable than oral admission which oozes out from the vocal cord of man and submissive to distortions. The lower Court, in due allegiance to the law, merely endorsed the appellant’s admission, which binds him, of his indebtedness to the respondent.
I have given a microscopic examination to the Lower Court’s 9-page succinct judgment, which is encased between pages 852-860, volume II, of the huge record. The Lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, oral and documentary, proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties. It found that the respondent’s pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The Lower Court found, rightly in my view, that the evidence of the respondent, based on their qualitative nature, preponderated over those of the appellant’s. The net effect is that the respondent proved its case. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399.
The appellant branded the finding as perverse. Since perversion is the cynosure of the point, it is germane to comb out its purports for easy appreciation. A verdict of Court is perverse when; it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd.(2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112.
Now, the lower Court’s judgment, sought to be impugned and ostracised, is pasted at pages 852-860, volume II of the large record; the bedrock of the appeal. I have subjected it to a clinical examination. I have, in total allegiance to the desire of the law, situated the judgment, sought to be decimated, with the elements of perverse decision x-rayed above. The raison d’etre behind the juxtaposition is simple. It is to discover if the judgment is marooned in the ocean of perversity. The judgment of the lower Court, which is submissive to comprehension, is not antithetical to the pleadings and evidence presented before it by the feuding parties. At the same time, the lower Court did not import alien/foreign matters into the judgment. It utilised the evidence the parties presented before it as catalogued above. The finding does not, in the least, smell of any charge of perversity leveled against it by the appellant.
In the light of this juridical survey, conducted in due consultation and obeisance to the law, the lower Court did not fracture the law to make its finding guilty of the allegation/accusation of perfunctory evaluation of evidence leveled against it by the appellant. The lower Court’s finding is immaculate and unassailable. On this score, I dishonour the learned appellant’s counsel’s enticing invitation to crucify the finding, on proof of the claim, on the underserved altar of improper evaluation of evidence. As a result, I will not hesitate to resolve the issue two against the appellant and in favour the respondent.
That brings me to the treatment of issue three.
The marrow of the issue is not far-fetched. It derides the Lower Court’s finding that the appellant failed to prove his counter-claim. A counter-claim connotes “a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim,” see Maobison Inter-Link Ltd. v. UT.C. (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 197 at 209, per Ariwoola, JSC.
It is settled law, beyond any per adventure of doubt, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter- claimant in order to earn the favour of the Court, see Ogbonna v. A-G.., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsefik & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante int’l Ltd v. NDIC (2011)15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017)1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152; Okoro v. Okoro (supra); Atiba Iyalamu Savings & Loans Ltd. v. Suberu (2018) 13 NWLR (Pt. 1639) 387; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29. Following the confirmation of the Lower Court’s finding under issue two, this issue ought not to delay this Court too long. Put simply, that confirmation, which I find no extenuating circumstances to disturb, to all intents and purposes, neutralises the potency of this issue.
To start with, in clause 12 of the MEMORANDUM OF DEPOSIT, Exhibit 3, which is found at pages 44-45, volume 1 of the expansive record, the appellant made a relevant voluntary undertaking. Due to its kingly position, it is imperative to pluck it out, where it is domiciled in the exhibit, ipsissima verba, thus:
12. That the chargor shall have no claim against FSDH SEC in respect of any loss on such sale however caused and whether or not a better price could or might have been obtained on the sale of the securities or any of them.
It is on record, it will be recalled, that the appellant donated a blank power of sale of his shares/securities, tied as collaterals to the loan facilities, to the respondent. In view of the all-encompassing and unfettered sale mandate, clause 12 of Exhibit 3, chronicled above, constitutes a clear illustration of waiver-an intentional and voluntary surrender, relinquishment, dispensation, abandonment, extinguishment of known privilege or right by a party, who is waiving it, which at his option, he could have insisted on, see Ariori v Elemo (1983) 1 SC 13 at 22; Ayanwoko v. Okoye (2010) 5 NWLR (Pt. 1188) 497; Ugwuanyi v. NCON Ins. Plc (2013) 11 NWLR (Pt. 1366) 546; NBC PLC v. Ubani (2014) 4 NWLR (Pt. 1398) 421; D.M.V (Nig) Ltd. v. NPA (supra); Socio-Political Research Dev. Min, FCT (2019) 1 NWLR (Pt. 1653)313; Mamonu v. Dikat (supra); C & C.B. Dev. Co. Ltd. v. Min. E.H.O.U D (2019) 5 NWLR (Pt. 1666) 484.
My noble Lords, it must be placed on record, pronto, that in law, the appellant’s right to claim against the respondent over issues in the disposition of the shares is personal or domestic to him and susceptible to waiver by him, see F & F Farms (Nig) Ltd. v. NNPC (2009) 12 NWLR (Pt. 1155) 387; Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) 633; C & C.B. Dev. Co. Ltd v. Min, E.H.O.U.D (supra). In the Latin days of the law, waiver of personal right was encapsulated in the maxim: Quilibet potest renunciare juri pro se introducto – an individual may renounce a law made for his special benefit. Having voluntarily waived his right of action against the respondent, the appellant was derobed of the right to reclaim it. It was trapped in the intractable web of waiver to the advantage of the respondent.
One of the reasons for the foreclosure is deeply rooted in the fact that it formed a fundamental term in the share –backed loan contracts between the parties. It is trite, that the parties and Courts are bound by the terms of the contracting parties. In other words, the law does not allow either the parties or the Courts to add to or subtract from terms of the contract reached by way of consensus ad idem, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (supra); A-G, Rivers State v. A-G, Akwa Ibom State (2011), 8 NWLR (Pt. 1248) 31; JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 19 NWLR (Pt.1225) 495; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111; A. ,G. Ferrero & Co. Ltd. v. H. C. (Nig.) Ltd (2011) 13 NWLR (Pt. 1265) 592; Nwaolisah v. Nwabufo (2011) 14 NWLR (Pt.1268) 600; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278); P.M. Ltd. v. The “M. v. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Uwah v. Akpabio (2014) 7 NWLR (Pt. 1407) 172; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Canitec Int’l Co. Ltd. v. Solel Boneh (Nig.) Ltd. (2017) 10 NWLR (Pt. 1572) 66; Oforishe v. N.G.C. Ltd. (2018) 2 NWLR (Pt. 1602) 35; Adedeji v. Obajimi (2018) 16 NWLR (Pt. 1644) 146; Okoro v. Okoro (supra); Julius Berger (Nig.) PLC v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. The appellant having sacrificed his known right on the shrine of waiver cannot ventilate it in a counter-claim against the appellant in the temple of justice of the lower Court.
Besides, the Lower Court declared the respondent victorious in its main claim. I have confirmed the declaration. The affirmed proclamation constitutes a serious coup de grace in the appellant’s view point on the issue. The reason is obvious. In the sight of the law, “The success of the main claim may after all render useless the counter-claim….”,see Maobison Inter-Link Ltd. V. U.T.C. (Nig) Plc (2013) 9 NWLR (Pt. 1359) 197 at 209, per Ariwoola, JSC. This is a stellar example where the success of the main claim disables a counter –claim. This, with due reverence, punctures and exposes the poverty of the learned appellant’s seemingly dazzling argument on the point. It cannot fly.
It flows from this brief legal anatomy, that the finding of the Lower Court on the counter-claim is unimpeachable. It is in due obeisance to the law. On this premise, all the strictures, which the learned appellant’s weaved and rained against the finding, pale into insignificance. They are idle. I resolve the issue three against the appellant and in favour of the respondent.
On the whole, having resolved the three issues against the appellant, the fortune of the appeal is plain. It is devoid of any tinge of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. Accordingly, I affirm the judgment of the lower Court which was delivered on 28th June, 2017. The parties shall bear the respective costs they expended in the prosecution and defence of the ill-fated appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment prepared by my learned brother, Obande Festus Ogbuinya, J.C.A., with nothing extra to add.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, FESTUS OBANDE OGBUIYA, JCA had afforded me in advance the opportunity of reading the judgment just delivered by him.
I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother and will only add these few words for emphasis sake.
A waiver indicates an international and voluntary relinquishment of a know right, or such conducts as warrants an inference of the relinquishment of such right, seeCHIEF JOHN EZE V. DR. COSMAS IKECHUKWU OKECHUKWU & ORS (2002) LPELR-1194 (SC); NBC PLC V. UBANI (2013) LPELR 21902 (SC); OLUFEAGBA & ORS V. ABDUR – RAHEEM & ORS (2009) LPELR-2613 (SC).
In this instant case, the Appellant relinquished an overriding power of sale of his shares/securities, tied as collaterals to the loan facilities to the Respondent; see pages 383 – 384, volume of the records of appeal.
The Appellant automatically loses all right to reclaim what he has voluntarily yielded.
Flowing from the above and concise reasoning in the lead judgment, I too hold that the appeal fails and be dismissed.
I abide by all consequential orders in the lead judgment.
Appearances:
Ademola Olowoyeye, Esq., with him, Olukayode Ashaolu, Esq. For Appellant(s)
Festus Onyia, Esq., with him, C.J. Ndubuisi Esq. For Respondent(s)
