3PLR – EDILCON NIGERIA LTD V. UNITED BANK FOR AFRICA PLC

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EDILCON NIGERIA LTD

V.

UNITED BANK FOR AFRICA PLC

 

SUPREME COURT OF NIGERIA

FRIDAY, 5 MAY 2017

SC.122/2001

3PLR/2017/105 (SC)

BEFORE THEIR LORDSHIP

OLABODE RHODES-VIVOUR JSC (Presided)

CLARA BATA OGUNBIYI JSC

CHIMA CENTUS NWEZE JSC

AMIRU SANUSI JSC

 

BETWEEN:

EDILCON NIGERIA LTD

AND

UNITED BANK FOR AFRICA PLC

 

 

MAIN JUDGMENT

GALINJE JSC (Delivering the Lead Judgment): The appeal herein is against the decision of the Court of Appeal, Jos Division, delivered on 13 April 2000. The appellant in this appeal, who was the plaintiff at the High Court of Plateau State, claimed against the respondent the following reliefs:

“1.     The entire sum of N240,641.74 (two hundred and forty thousand naira, seventy-four kobo) due to the plaintiff being balance credit in favour of the plaintiff after the overdraft is deducted from the amount credited and 21% compound interest.

2. The plaintiff also claims the sum of N150,000.00 (one hundred and fifty thousand naira) being damages for conversion of the plaintiff’s aforesaid amount being money had and received but the defendant converted same to its personal use.
3. That the plaintiff also claims the sum of N55,000.00 (fifty-five thousand naira) being damages for deformation (sic) as the defendant has instructed the sale of the entire properties mortgaged by the plaintiff.
4. Perpetual injunction restraining the defendant, its servants, agents or privies from selling the following properties:

(a)     Yakubu Gown way Anglo Jos Plateau State

(b)     No. 1 Madaki street Bukuru Plateau State.

(c)     Plot No. BL569 Bisichi Jantar Sabon Gidan Danyaya Barkin Ladi Local Government Area.”

The respondent as defendant at the trial court denied the appellant’s claims and set up a counterclaim as follows:

(a)     N1,418,076.10 DR. being loan and interest.

(b)     Interest at bank rate of 34% from 1 October 1993 until judgment and thereafter at 34% until full payment.

At the end of the trial, Ahinche J., in a reserved and considered judgment delivered on 15 December 1995, dismissed the appellant’s claims and entered judgment for the defendant on its counterclaim, but granted 21% post-judgment interest until the judgment sum is fully and totally paid.

Appellant’s appeal to the Court of Appeal, Jos Division, was dismissed in a reserved and considered judgment delivered on 13 April 2000. With the leave of this court donated on 15 January 2007, the appellant filed its notice of appeal on 24 January 2007 containing four grounds of appeal.

Parties filed and exchanged briefs of argument. The appellant at page 4 of the appellant’s brief of argument settled by Solomon E. Umoh SAN dated and filed on 12 May 2008,formulated three issues for determination of this appeal as follows:

“1.     Whether the Court of Appeal was right when it relied on exhibit 16A on a different ground from that advanced by the learned trial judge, without a respondent’s notice to that effect

2. Whether the Court of Appeal was right when it held that the appellant was bound by exhibit 17A, even though the appellant was not a party to the said document.
3. Whether the Court of Appeal was right when it upheld the decision of the trial court in dismissing the appellant’s claims and entering judgment in favour of the respondent.”

Issue 1 is distilled from ground 1, issue 2 from grounds 2, 3 and 4 while issue 3 is distilled from the 5th ground of appeal. Chief G. O. Okafor, learned senior counsel for the respondent issued a preliminary objection to the competence of this appeal which he filed on 7 August 2005 in the following terms:

“The appellant’s appeal in SC.122/2001 is incompetent as this honourable court on 15 January 2007 had become functus officio and had no jurisdiction to grant leave to appeal having dismissed earlier application on 6 June 2005 on the merit.”

Learned senior counsel argued the preliminary objection at pages 7-11 of the respondent’s brief of argument dated and filed on 7 August 2015 and went on to formulate three issues for determination of this appeal as follows:

“1.     Whether the lower court was right when it relied on exhibit 16A on a different ground from that advanced by the learned trial judge without a respondent’s notice to that effect.

2. Whether the Court of Appeal was right when it held that the appellant was bound by exhibit
3. Whether the Court of Appeal was right when it upheld the decision of the trial court in dismissing the appellant’s claims and entering judgment in favour of the respondent.

Issue 1 is distilled from ground 1, issue 2 is distilled from grounds 2, 3 and 4, while issue 3 is distilled from the 5th ground of appeal.

Learned counsel for the appellant filed a reply brief on 3 June 2016. The learned silk on behalf of the respondent filed a cross appeal on 7 July 2000. I will consider this cross-appeal after I have considered and determined the appeal before this court. I want to take the liberty to consider the preliminary objection first before going into the appeal.

The fact that gave rise to this preliminary objection are articulated in the affidavit in support of the notice of preliminary objection. The relevant paragraphs of the said affidavit are hereunder reproduced for clarity as follows:

4. That the Court of Appeal Jos Division on 13 April 2000, delivered judgment in appeal No. CA/J/24/ 1997.
5. That being dissatisfied with the judgment, the appellant filed a notice and grounds of appeal dated 10 July 2000, but filed on 13 July 2000. That the notice of appeal aforesaid is at pages 181 to 189 of the record. That the appeal was entered in this honourable court as C.122/2001.
6. That as 21 April 2004, the respondent herein filed a motion on notice to strike out the appeal No. SC.122/2001 for being incompetent. That copy of the motion without the affidavit is annexed hereto as exhibit 1.
7. That upon being served with exhibit 1 hereto, the appellant by a motion on notice filed on 14 July 2004, applied for leave to appeal out of time. That a copy of the motion on notice dated 12 July 2004 but filed on 14 July 2004 is annexed hereto as exhibit 2.
8. That on 6 June 2005, this honourable court dismissed the application for leave to appeal that copy of the ruling of this court is annexed hereto as exhibit 3.
9. That the appellant on 19 July 2006, filed yet another motion on notice for similar relief as in exhibit 2. That copy of the motion without the affidavit is annexed hereto as exhibit 5.
10. That on 15 January 2007, this appeal was again listed when there was no valid appeal before the court. That exhibit 5 was never served on our chambers. That I was informed by Zik Obi Esq. in our chambers on 26 June 2015, at 4pm and I verily believed him that on 15 January 2007, he was in court to represent the respondent. That exhibit 5 was served on him in court by counsel to the appellant. That despite his protestation for time to react to the motion, this honourable court granted the relief sought.
11. That the ruling of this honourable court dated 15 January 2007 is annexed hereto as exhibit 6.
12. That pursuant to exhibit 6, the appellant filed a notice of appeal dated 23 January 2007. Copy annexed hereto as exhibit 7.
13. That on 15 January 2007, this honourable court having dismissed the application, had no jurisdiction to consider exhibit 5 herein having become functus officio.
14. That I verily believe that there is no valid appeal before this honourable court.
15. That this appeal should be struck out for being incompetent.” It is on the basis of the facts deposed to in the paragraphs of the affidavit reproduced herein above, learned senior counsel submitted that once a motion on notice for leave to appeal has been dismissed on the merit, the court has become functus officio and the motion cannot be re-introduced or refiled, as it is a final decision. Learned senior counsel made reference to the decision of this court in Amoo v. Alabi (2003) FWLR (Pt. 174) 198, (2003) 12 NWLR (Pt. 835) 537 at 553, paragraphs G-H where it was held:

“An order refusing an extension of time within which to appeal is not a decision on the merit. As such it does not constitute in law a bar to further application.” and submitted that this statement cannot be correct for all situations in that in the case of Amoo v. Alabi, the applicant came to this court on appeal against the dismissal of his application at the Court of Appeal. According to the learned counsel, the statement was an obiter, and that an applicant can only go back to the same court in an application of this nature, if the previous application was only struck out. It is his view that one cannot put something on nothing and expect it to stand. In aid, learned counsel cited Macfoy v. U. A. C. (1962) SC 152 at 160.

Still in argument, learned counsel submitted that this court has no jurisdiction to hear this appeal as same is incompetent since the court was functus officio at the time it granted extension of time to seek leave to appeal, leave to appeal and extension of time to appeal. In aid, several authorities were cited which include: First Bank of Nigeria Plc v. T.S.A. Industries Ltd (2010) All FWLR (Pt. 537) 633, (2010) 15 NWLR (Pt. 1216) 247; Dingyadi v. I.N.E.C. (No. 1) (2010) All FWLR (Pt. 550) 1204, (2010) 18 NWLR (Pt. 1224) 1 at 186, paragraphs D-H; Buhari v. I.N.E.C. (2008) 19 NWLR (Pt. 1120) 246 at 375-376, (2008) 12 SC (Pt. 1) 1; Ukachukwu v. Uba (2004) 10 NWLR (Pt. 881) 294 at 306, paragraph E; Madukolu v. Nkemdilim (1962) 1 All NLR 587, (1962) 2 SCNLR 341; Skenconsult (Nig.) Ltd v. Ukey (1981) 1 SC 6, (1981) 1 NSSC 1. In reply to the submission of the learned senior counsel for the respondent/objector, Mr. Umoh, learned senior counsel for the appellant submitted that an order dismissing an application for extension of time within which to appeal is not a decision on the merit. In aid, learned senior counsel cited Amoo v. Alabi (supra); Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156, (1992) 11/12 SCNJ 30; Osayomi v. Governor, Ekiti State (2014) All FWLR (Pt. 751) 1573, paragraphs F-G; P.W.T. (Nig.) Ltd v. J. B. O. Int’l (2010) 13 NWLR (Pt.1226) 1, (2011) All FWLR (Pt. 564) 21.

In a further argument, learned senior counsel submitted that the circumstances that led to the dismissal of the appellant’s motion dated 12 July 2004, clearly makes the order of dismissal in law a mere striking out, as such this court cannot be said to be functus officio on a motion that was merely struck out, irrespective of the fact that it was an order of dismissal that was pronounced.

According to the learned senior counsel, this court has the requisite jurisdiction to entertain the appellant’s appeal on the merit.

Finally, learned counsel urged this court to dismiss the preliminary objection. The ruling of this court in respect of the motion on notice filed on 19 July 2006 is reproduced hereunder as follows:

“Application is granted as prayed. Notice of appeal filed on 13 July 2000, is struck out. Applicant is granted 14 days within which to file the notice of appeal, his application to appeal having been granted.”

This ruling was delivered on 15 January 2007. The notice of appeal before this court was filed on the basis of this ruling. There is no evidence before this court that its ruling of 15 January 2007, that extended the time for the appellant to file this notice of appeal has been set aside and quashed. The law is settled beyond any argument that a judgment or ruling of a court of law, no matter how incorrectly arrived at is valid, binding and subsisting until it is set aside by the same court through a judicial review or by appellate proceedings.

See Obineche v. Akusobi (2010) All FWLR (Pt. 533) 1839, (2010) 12 NWLR (Pt. 1208) 383 at 405, paragraph D. By Order 2, rule 29 (1) of the Rules of this court, a party who feels that the decision of this court is reached per incuriam or without jurisdiction is at liberty to apply that the decision so reached be set aside.

As a general rule, every court of record has inherent jurisdiction, on application and in appropriate cases and circumstances, to set aside its judgment and decision. This jurisdiction may be exercised where for instance, the judgment or decision sought to be set aside is null and void ab initio or there was a fundamental defect in the proceedings which vitiates and renders same incompetent and invalid.

See Alhaji Taofeek Alao v. African Continental Bank Limited (2000) FWLR (Pt. 11) 1858, (2000) 2 NSCQR (Pt. 2) 1085, (2000) 9 NWLR (Pt. 672) 264, (2000) 6 SCNJ 63; Salami Ohiokewu & Ors. v. Abraham Olabanji & Anor. (1996) 3 NWLR (Pt. 435) 126; Skenoconsult (Nig.) Ltd v. Ukey (supra). Where it is found that the court’s decision was void ab initio or there was a fundamental defect in the proceedings which vitiates and renders same invalid, the court may ex-debito justitiae set aside  its decision or judgment and may make necessary consequential orders that the justice of each individual case demands. Learned senior counsel for the respondent has no power to declare the decision of any court incompetent. I therefore hold that the ruling of this court delivered on 15 January 2007 remains valid until it is set aside by a competent court.

See PDP v. Asadu (2016) 17 NWLR (Pt. 1541) 215 at224, paragraphs B-C, where this court per Ogunbiyi JSC held:

“I just wish to say briefly that without an application to set aside the dismissal order made by this court on 11 April 2016, the applicant cannot by law access  the exercise of any discretion from the court. In other words, the application filed on 19 April 2016, is tantamount to putting the cart before the horse. An order of court remains extant always until set aside.

The applicant in this case has failed to invoke the jurisdiction of this court to entertain his application. He cannot be obliged as a matter of course.”

It is equally the law that once an application is dismissed by this court, an identical application can only be heard by this court if the order of dismissal of the application is set aside.

This is the decision that was handed down by this court in PDP v. Asadu (supra) at pages 222-223, paragraphs H-B, where my brother, Rhodes-Vivour JSC said:

“After an application which can only be granted at the discretion of the court is dismissed, that ought to be the end of the matter, but this being the top court, an applicant should file an application seeking an order of court setting aside the order of dismissal.

Such an application calls on this court to exercise its discretion in the applicant’s favour, and under the inherent jurisdiction of this court. This is so because the order of this court dismissing an identical  application on 1 April 2016 still subsists.”

The Supreme Court is the apex court in this country and its  decisions are final in all respect. It has wide discretionary power  to consider identical applications that have been dismissed by  it. However, this can only be done if the applicant is able to  convince the court to exercise its discretion in his favour by  setting aside its order of dismissal. It is only after that is done  that the application seeking for the same order can be heard.

The case of Amoo v. Alabi no longer represents the position of the law. Be that as it may, since the ruling of this court delivered  on 15 January 2007, is still extant, the present appeal cannot be incompetent. For all I have said, the preliminary objection is  without merit and it is hereby overruled.

Now, on the main appeal, before I consider the argument of learned senior counsel on both sides with a view to resolving  parties contentions, I will set out albeit in brief the facts of this case as ably articulated by the lower court. Sometime in the year 1985, the appellant applied for and was granted an overdraft of N400,000.00 by the respondent to execute a contract it entered into with the University of Jos. The terms of the overdraft include a chargeable interest of 13%, the up- tamping of two deeds of legal mortgage over a landed property situate at Bisichi Jantar in Barkin Ladi Local Government of Plateau State. After perfecting the required conditions, the appellant applied for the release of some amount of money out of the overdraft in order to purchase materials needed for the due execution of its contract. The University of Jos also paid mobilization fee to the appellant who utilized part of it together with the money which was withdrawn from the respondent in purchasing materials including iron pipes. The contract with the university was for the development of infrastructural facilities on the campus. The university later experienced difficulties in securing funds to execute the contract. It therefore suspended the contract on the sewage main line for which the iron pipes were procured.

In the mean time, the appellant’s overdraft became due for repayment. The appellant who hadn’t the capacity to repay the overdraft approached the university to find out how to settle the overdraft. The university and the appellant agreed after several meetings to sell the iron pipes which were no longer required for the contract and whose value had by then risen tremendously.

The iron pipes were accordingly sold off in four deals and the money forwarded to the respondent. Then series of meetings were held to determine how the proceeds from the sale of the iron pipes were to be shared. The respondent said that as a result of the meetings between it, the appellant and the university, it was agreed that the proceeds be shared between the university and the appellant in the ratio of 55% and 45% respectively. The respondent made it clear that the share of the appellant would be paid into its account from which the overdraft will be serviced. After the payment of the proceeds of the sale of the pipes, the respondent forwarded to the university it’s 55% and credited the balance into the appellant’s account from which it applied same in recovering its overdraft and the interest that accrued thereto. At this point the appellant denied ever agreeing on any sharing formula and insisted that the whole proceed was to be paid into its account. The appellant claimed that the proceeds of the sale of the iron pipes which amounted to N780,813.57 (seven hundred and eighty thousand, eight hundred and thirteen naira, fifty-seven kobo) had efficiently settled its indebtedness with the respondent, leaving a credit balance of N240,611.74 (two hundred and forty thousand, six hundred and eleven naira, seventy-four kobo) to its favour. The respondent on its part contended that the appellant’s share of 45% of the proceeds of sale of the pipes only reduced the outstanding overdraft and the interest thereon and that the overdrawn balance against the appellant still stood at N1,418,076.10 (one million, four hundred and eighteen thousand, seventy-six naira, ten kobo). Because of the sharp differences between the appellant and the respondent, the appellant on 12 July 1991 took out a writ of summons against the respondent in which it claimed the reliefs I have already set out elsewhere in this judgment.

On issue one, learned senior counsel for the appellant submitted that the lower court agreed with the manner in which the appellant effectively challenged the treatment given to exhibit by the trial court, yet in a dramatic turn of events, attempted to justify the treatment given to the said exhibit. This, learned senior counsel further submitted that the lower court had fallen into the error of substituting its own finding on the ground upon which exhibit 16A could be used as credible evidence in the proceedings with that of the trial court without being urged to do so by way of a respondent’s notice. It is the learned senior counsel’s contention that the lower court’s action amounted to making a case for the respondent, as there was no process filed by the respondent seeking for the variation of the ground upon which the trial court made use of exhibit 16A. Learned counsel submitted that a court has a duty not to make a case for another party, as a court must stand as an unbiased umpire in the course of the proceedings before it. In aid, learned senior counsel cited:

Osolu v. Osolu (2003) FWLR (Pt. 172) 1777, (2003) 11 NWLR (Pt. 832) 608 at 631, paragraphs A-C; Adeniji v. Adeniji (1972) 1 All NLR (Pt. 1) 301, (1972) 7 NSCC 187, (1972) 4 SC 10; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Olusanya v. Olusanya (1983) 14 NSCC 97, (1983) 3 SC 41, (1983) 1  CNLR 134; Ebba v. Ogodo (1984) 4 SC 84, 98-100, (1984) 1 SCNLR 372, (2000) FWLR (Pt.27) 2094, (2000) 10 NWLR (Pt. 675) 387. Still in argument, learned senior counsel submitted that the lower court ought to have confined itself to the question as to whether the weight that the trial court attached to exhibit was proper in the circumstances of the case. According to the learned counsel, the lower court went beyond what it was called upon to do and without the prompting of the respondent, made a dramatic variation to the ground upon which the trial court had earlier found in favour of the respondent, and thereby affirming the judgment of the trial court on different grounds. It is the further submission of learned senior counsel that the finding that the appellant was present at the meeting that gave rise to exhibit is not supported by evidence and it is therefore perverse. Finally, on this issue, learned senior counsel urged this court to interfere with the concurrent findings of fact by the two lower courts on the authority of J.C. Ltd v. C.M. & Partners Ltd (2002) 9-10 SC. 153 at 164, paragraph 25.

With respect to the learned senior counsel for the appellant, I do not think that the lower court made a new case for the respondent. Exhibit 16A, even though unsigned and had no evidential value, is a document that was before the lower court. Even though a respondent in appeal who wishes to contend that the decision of the court should be affirmed on grounds other than those relied on by the trial court could do so by way of respondent’s notice, the lower court by its rules is not excluded from affirming or varying a decision of a trial court on grounds other than those relied upon by the trial court, provided that the decision is taken on the basis of the evidence before the trial court. See Order 51, rule 20 (4) and (5) of the Court of Appeal Rules 1981, which was the applicable rules when this appeal was heard and judgment delivered. Although the lower court found like it did that the trial court was in error when it is ascribed some weight to unsigned exhibit 16A, it was however right when it used the said exhibit to hold that the meeting that give rise to that exhibit indeed took place.

This is what the court said at pages 159-160 of the printed record of this appeal:

“The appellant said no weight should be attached to exhibit because it was an unsigned document. Mind you, it is not the contention of the appeal that no such meeting ever took place !! DW1 gave evidence about the meeting convened as reflected in exhibit – although his account of it was given in a rather unsatisfactory manner. However that the meeting was held and discussions made about the disposal of the iron pipes is beyond doubt. To that extent the use to which the learned trial judge made of exhibit could be justified on different ground and his conclusion about the convening of the meeting in which appellant was present in my view is correct, given the evidence of DW1.”

Clearly, an incompetent exhibit 16A is an evidence that there was a meeting, just as an incompetent proceeding or decision of a court is an evidence of the fact that the court sat and conducted proceeding that is incompetent. The justices that took part in the proceedings and the lawyers that appeared for the parties will be part of the established facts of what happened.

So it is with exhibit that was admitted in evidence at the trial court and same was in the lower court’s file. This court has held in a number of cases that the courts have absolute power to look at the documents in their files and utilize them to support established facts. See Agbasi v. Ebikorefe (1991) 4 NWLR (Pt. 502) 630; Uzodinma v. Izunaso (2011) 17 NWLR (Pt. 1275) 30 at 90, paragraphs B-C, (2011) 5 (Pt. 1) MJSC 27; Goodwill & Trust Investment Ltd v. Witt & Bush Ltd (2011) All FWLR (Pt. 576) 517, (2011) LPELR -1333 SC 42.

The content of exhibit shows clearly that the appellant was represented by Alhaji Isa Haruna and its engineer, Mr. Uche Onjuka and a quantity surveyor, respectively, and this is consistent with the evidence of DW1, Stanley Ejoma at page 62, lines 17-19 of the record of this appeal, where he said:

“The defendant was represented by Alhaji Isa Haruna and his engineer, Mr. Uche Onjuka and the quantity surveyor who was there.”

This piece of evidence having the backing of exhibit cannot be supplanted by oral evidence of PW1 who claimed that the appellant was not represented at the meeting. See Chief S. O. Agbareh & 1 Or. v. Mr. Anthony Mimra (2008) All FWLR (Pt. 409) 559, (2008) 2 NWLR (Pt. 1071) 378 at 410-411, paragraphs F-B, (2008) 1 SC (Pt. III) 88.

I therefore agree with Mr. G. Ofodile Okafor, learned senior counsel for the respondent that the judgment of the lower court is not perverse as contended by the learned appellant’s counsel, since same is based on facts, evidence and the relevant laws applicable to the case. I am therefore not prepared to disturb the concurrent findings of the two lower courts on this score. This issue is resolved against the appellant and in favour of the respondent.

On the second issue for determination, learned appellant’s counsel submitted that the lower court was wrong when it held that the appellant was bound by the terms of exhibit when it found that the appellant was undoubtedly not a party to the said exhibit. According to the learned counsel, a person is not under an obligation to bear the burden of a contract to which he is not a privy, even though the contract is in his favour or benefit.

In aid, learned counsel cited Makwe v. Nwukor (2001) FWLR (Pt. 63) 1, (2001) 14 NWLR (Pt. 733) 356 at 358 and 359; U.B.A. Plc v. Jargaba (2007) All FWLR (Pt. 380) 1419, (2007) 11 NWLR (Pt. 1045) 247 at 256. Learned counsel forcefully argued that there is no evidence that the appellant ever agreed to be bound by the terms of exhibit 17A which it was never a party to in the first instance and that the appellant cannot be held liable for an agreement as reflected in exhibit 17A which was executed by the respondent and the University of Jos, since the respondent is not an agent of the appellant. In a further argument, learned senior counsel submitted that not only was there no agreement between the appellant and the respondent for the  creation of a suspense account into which the proceeds of the sale of the iron pipes to be paid.

Exhibit is the minutes of another meeting in which an agreement was reached as to the sharing formula of the proceeds from the sale of the iron pipes in the ratio of 32.8% for the  appellant and 67.5% for the University of Jos. This sharing formula was to be put into effect by the respondent since the money realized was to be lodged into the appellant’s account  domiciled with the respondent.

The lower court after a careful examination of exhibits 18, 19, 20 and 21 came to the following conclusion:

“Having regard to exhibits 19, 20 and 21 therefore the conclusion, of the learned trial judge that there was a sharing formula agreed upon between the appellant and the University of Jos cannot be faulted.”

The lower court was right in its conclusion. This is so because the appellant, is the author of exhibits 19, 20 and 21. In exhibit 19, the appellant directed the respondent as follows:

“The above payment is to go into Edilcon account and out of this, thirty five thousand naira (N35,000) should be deducted for the commission and other commitments as agreed with the former manager. Therefore we are applying as agreed to the branch manager to give us N35,000 out of N147,612.50 (one hundred and forty-seven thousand, six hundred and twelve naira, fifty kobo) should be paid to Edilcon account and the University as per agreement.”

(italicizing mine).

In paragraph 2 of exhibit 20, the appellant drew the attention of the respondent to the previous meetings they held with the University of Jos, as follows:

“We wish to draw your attention during our previous meetings with university authority and the former bank manager, that Edilcon Nig. Ltd will be given some percentage for the transaction, handling charges and payment of watchmen and others. But to our surprise, this verbal agreement was not fully implemented, because the money given by the bank was not in any way sufficient to solve the problems.” After the total proceeds of N785,823.57 (seven hundred and eighty-five thousand, eighty hundred and twenty-three naira, fifty-seven kobo) was realized from the sale of the iron pipes, and in order to ascertain the state of its account and the share collected by the university, the appellant wrote the respondent seeking among other things, the following clarification as contained in paragraph 2 of exhibit 21 as follows:

“That out of the aforesaid, the sum of N40,000.00 (forty thousand naira) was paid to the company to enable it settle salaries of watchmen who took care  of the pipes, that the balance of N745,000.00 (seven hundred and forty-five thousand naira) was lodged in favour of Edilcon and Jos University. That since the aforesaid lodgment about 2 years ago, we have not been made aware of the amount paid to Edilcon’s account and also the University.”

The passages quoted from exhibits 19, 20 and 21 above clearly show that the appellant impliedly adopted the agreement contained in the exhibit by its subsequent conduct in dealing with the respondent. Where that happens as in this case, the parties will be bound by the terms of the agreement as if they executed it. See McDonald v. John Twiname Ltd (1953) 2 QB.304 at 314.

This is a clear manifestation that the appellant participated in the meetings that gave rise to exhibits 16A, 17A and 18, and endorsed the agreement to sell the pipes and share the proceeds in accordance with the formula agreed upon. The lower court was therefore right when it held that the appellant is bound by the contents of exhibit 17A which was duly signed by the chairman of the meeting. This is so, because, it is the law that where parties have entered into agreement voluntarily and there is nothing to show that such agreement was obtained by fraud, mistake, deception or misrepresentation, they are bound by the terms of the agreement. See Attorney-General, River State v. Attorney-General, Akwa-Ibom State (2011) All FWLR (Pt. 579) 1023, (2011) 8 NWLR (Pt.  248) 31 at 81.

This issue for determination relates to exhibit only. I cannot therefore go outside the said issue to discuss questions, bothering on whether the respondent is an agent of the appellant. Throughout the series of meetings culminating into the execution of exhibits 16A, 17A and 18, the appellant was duly represented.

For all I have said, this issue is resolved against the appellant and in favour of the respondent. On the third issue for determination of this appeal, learned senior counsel for the appellant submitted that there was no evidence before the trial court that contradicted the fact that appellant had paid N780,823.57 (seven hundred and eighty-five thousand, eighty hundred and twenty-three naira, fifty-seven kobo) into his account which is domiciled with the respondent.

It is learned senior counsel’s submission that the money paid was intended to liquidate the appellant indebtedness to the respondent for the overdraft facility which stood at N540,181.83 (five hundred and forty thousand, one hundred and eighty-one naira, eighty-three kobo) as at 29 June 1987. Still in contention, learned senior counsel submitted that the appellant was not a party to exhibits 17A and 18 on the basis upon which payment was made to the University of Jos.

In a further argument, learned senior counsel submitted that the payment to the university was a unilateral action by the respondent as confirmed by the evidence of DW2, as such the lower court should have delivered judgment in favour of the appellant. I do not think, learned appellants counsel is correct.

DW1 at page 62 of the record said:

“During the meeting, it was agreed that the pipes be sold and the proceeds be shared at the ratio of 55 to University of Jos and 45 to the defendant. I refer to exhibit 16 where it was so agreed.”

The same DW1 could not have testified that the payment to the University of Jos was effected arbitrarily. The appellant’s account was always shown to be in debit balance and this is consistent with the findings of the trial court, where it held at page 89, lines 9-13 as follows:

“The plaintiff assumed that if he had lodged a total sum of N780,823.57 and the defendant deducted N540,181.93, he would have a balance of N240,641.74. This would have been correct if nothing was shared between the University of Jos and the defendant at the ratio of 55.45 …”

The lower court did affirm the position of the trial court, when it held at page 176, lines 17-22 as follows:

“Furthermore, exhibit 25 did show the debit balance of the appellant standing at N1,181,176.10 as at 27 September 1993 after the appellant’s share of 45% was credited to its account and accordingly utilized in reducing its outstanding indebtedness in relation to the overdraft. The finding of the learned trial judge at page 96, lines 8-13 appears to be well founded given the state of the pleadings and the evidence led.”

The trial court had no reason to give judgment to the appellant, having regard to the overwhelming evidence against it, which showed that of the total sum of N780,523.57 (seven hundred and eighty-five thousand, eighty hundred and twenty-three naira, fifty-seven kobo) that was paid into its account as agreed, 45% accruing to it was used to reduce its indebtedness to the respondent which stood at N1,418,178.10 (one million, four hundred and eighteen thousand, one hundred and seventy-eight naira, ten kobo) as at 27 September 1993.

On the basis of the parties submission, I agree with learned senior counsel for the respondent that this issue ought to be and it is accordingly resolved against the appellant.

Having resolved all the three issues submitted for determination of this appeal against the appellant, this appeal shall be and it is hereby dismissed for lack of merit. The cost of prosecuting this appeal is assessed at N200,000.00 (two hundred thousand naira) in favour of the respondent and against the appellant.

Cross Appeal:

The respondent in the appeal is dissatisfied with certain aspect of the judgment of the lower court. Being aggrieved he brought this appeal.

The cross-appellant formulated one issue for determination of this appeal as follows:

“Whether the Court of Appeal was right when it set aside the 21% interest awarded to the cross appellant.”

The cross-respondent adopted the sole issue formulated by the cross-appellant.

The cross-appellant herein, who was the defendant at the trial court, counterclaimed against the cross-respondent as follows:

“(a)    N868,597.02 as debt

(b)     Interest at bank rate of 22.50% from 1 February 1992 until judgment and thereafter at 10% until full payment.”

(See page 41 of the printed record of this appeal).

In his judgment, the learned trial judge, Ahinche J. made the following orders:

“Therefore judgment is entered in favour of the counterclaim in the sum of N1,418,076.10 with the interest at bank rate of 34% from 1 October 1993 to the date of judgment, and 21% interest from the date of judgment until the whole debt is liquidated.”

On appeal, the Court of Appeal per Isa Abubakar Magaji (JCA) held:

“Consequently, the award of 21% interest rate on the judgment debt having been made contrary to Order 40 rule 7 of the Plateau State High Court (Civil Procedure) Rules, 1987 is hereby set aside. All other issues are resolved against the appellant. The judgment of Ahinche J. in suit No. PLD/317/91 dated 30 January 1996, is hereby affirmed except as it affects the payments of 21% interest rate on the judgment debt which is accordingly set aside.”

I have reproduced elsewhere in this judgment the cross appellant counterclaim which it endorsed in its amended statement of defence at pages 38-41. At paragraph 26 of the …

“It should always be born in mind that a court of law is not a charitable institution. Its duty in civil cases is to render into everyone according to his proven claim. This is based on the fundamental principle of adjudication that a defendant must be given opportunity to answer the claim against him and if need be to resist it.”

See Ekpenyong v. Nyong (1975) NSCC (Vol. 9) 28, (1975) 2 SC 71; Obajimi v. Attorney-General, Western Nigeria (1967) All NLR 31. The trial court granted a post judgment interest which was neither claimed nor authorized. Interest may be awarded in a case in two distinct circumstances:

“(a)    As of right as agreed by the parties or under a mercantile custom or under a principle of equity much as a breach of fiduciary relationship; and,

(b)     Where there is a power conferred by statute to do, in exercise of the court’s discretion.”

See Ekwunife v. Wayne W. A. Ltd (1989) 5 NWLR (Pt. 122) 422.

Post judgment interest in the instant case is provided for under Order 40, rule 7 of the Plateau State High Court (Civil Procedure) Rules, 1987, and it is pegged at 10% of the total sum awarded to a claimant. In absence of any agreement, the trial court had no jurisdiction to award more than what is statutorily provided for. The lower court was therefore right when it set aside the post judgment interest as it was awarded in error and without justification. The sole issue formulated for determination of this cross-appeal is accordingly resolved in favour of the cross- respondent: This cross-appeal shall be and it is accordingly dismissed.

No order as to cost.

 

 

 

[A copy of this judgment complete with distilled Main Issues, Citations and Legal Representation is available in PDF format for N300. Find below main judgment of court]