EDILCON NIGERIA LIMITED v. UNITED BANK FOR AFRICA PLC (2017)

In The Supreme Court of Nigeria

On Friday, the 5th day of May, 2017

SC.122/2001

Before Their Lordships

OLABODE RHODES-VIVOUR  Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI  Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE  Justice of The Supreme Court of Nigeria
AMIRU SANUSI  Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE  Justice of The Supreme Court of Nigeria


Between

EDILCON NIGERIA LTD –Appellant

AND

UNITED BANK FOR AFRICA PLC –Respondent

…………………….A…………………….

PAUL ADAMU GALINJE, J.S.C.(Delivering the Leading judgment): The appeal herein is against the decision of the Court of Appeal, Jos Division, delivered on the 13th 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 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 being damages for conversion of the plaintiffs 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 N55,00.00 being damages 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 Gowon 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 counter claim as follows:
(a)  N1,418,076,10 DR. being loan and interest.
(b) Interest at Bank rate of 34% from 1/10/93 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 the 15th 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 the 13th April, 2000. With the leave of this Court donated on the 15th January 2007, the Appellant filed its notice of appeal on the 24th of 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 the 12th of 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 appellants claims and entering judgment ln 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 the 7/8/2005 in the following terms:
The Appellants appeal in SC.122/2001 is incompetent as this Honourable Court on the 15/1/2007 had become functus officio and had no jurisdiction to grant leave to appeal having dismissed earlier application on the 6/6/2005 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 the 7/8/2015 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 17A.
3. Whether the Court of Appeal was right when it upheld the decision of the trial Court in dismissing the Appellants 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.

…………………….B…………………….

Learned Counsel for the Appellant filed a reply brief on the 3/6/2016.
The Learned Silk on behalf of the Respondent filed a cross appeal on the 7th 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 13th 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 10/7/2000 but filed on 13/7/2000. 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 SC.122/2001.
6. That as 21/4/2004, 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 14/7/2004 applied for leave to appeal out of time. That a copy of the motion on Notice dated 12/7/2004 but filed on 14/7/2004 is annexed hereto as Exhibit 2.
8. That on 6th day 
of June 2006, 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 19/7/2006, 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 the 15/1/2007, 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 the 26/6/2015 at 4pm and I verily believed him that on the 15/1/2007 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 15/1/2007 is annexed hereto as Exhibit 6.
12. That pursuant to Exhibit 6, the Appellant filed a Notice of Appeal dated 23/1/2007. Copy annexed hereto as Exhibit 7.
13, That on 15/1/2007 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)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. UAC (1962) 1 AC152 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 FBN PLC v. TSA Ind. Ltd (2010)15 NWLR (Pt.1216) 296, Dingyadi v. INEC (2011)18 NWLR (Pt.1224) 154 at 186 Paragraph D-H,Buhari v. INEC (2008) 19 NWLR (Pt.1120) 246 at 375-376, Ukachukwu v. UBA (2004)10 NWLR (Pt.881)294 at 306 Paragraph E, Madukolu v. Nkemdilim (1962) ANLR 581, Skenconsult Nig. Ltd v. Ukey (1981) 1 SC.6 at 8.

…………………….C…………………….

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.246) 156, Osayomi v. Governor Ekiti State (2014) ALL FWLR (Pt.751)1598 Paragraphs F-G, PW.T. (Nig.) Ltd v. J. B.O. IntL (2011) ALL FWLR {pt.564}34.
In a further argument Learned Senior Counsel submitted that the circumstances that led to the dismissal of the Appellant’s motion dated 12/7/2004 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 the 19th July, 2006 is reproduced hereunder as follows:
“Application is granted as prayed. Notice of Appeal filed on 13/7/2000 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 the 15th day of 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 15th day of 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)12 NWLR (Pt.1208) 383 at 405 paragraphs 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. ACB Ltd. (2000) 2 SCNQR 1067, Salami Ohiokewu & Ors. v. Abraham Olabanji & Anor. (1996) 3 NWLR (pt.435) 126, Skenconsult (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-deblto 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 the 15th January, 2007 remains valid until it is set aside by a competent Court
See PDP v. Asadu (2016)17 NWLR (Pt.1541) 215 at 224 Paras 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 the 11/4/16, 
the applicant cannot by law access the exercise of any discretion from the Court. In other words, the application filed on 19th 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.

…………………….D…………………….

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 page 222-223 paras 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 the order of dismissal. Such an application calls on this Court to exercise its discretion in the inherent jurisdiction of this Court, this is so because the Order of this Court dismissing an identical application on 1/4/20116 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 application 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 the 15th of 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. Some time 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-stamping of two deeds of legal mortgage as well as executing another deed 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 Respondents 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 had effectively settled Its indebtedness with the Respondent, leaving a credit balance of N240,611.74 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. Because of the sharp differences between the Appellant and the Respondent, the Appellant on the 12/7/91 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 16A 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

…………………….E…………………….

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) 11 NWLR (Pt.832) 608 at 631 Paragraphs A – C, Adeniji v. Adeniji (1972)1 ALL NLR (pt.1)298; Adegoke v. Adibi (1992)5 NWLR (pt.242) 410, Olusanya v. Olusanya (1983)1 SCNLR, 134, (1983) 3 SC.41; Ebba v. Ogodo (1984) 1 SCNLR 372. 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 16A 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 16A 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) 9-1O SC.153 at 164 Paragraphs 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 ascribed some weight to unsigned Exhibit 16A, it was however right when it used the said Exhibit to hold that the meeting that gave rise to that exhibit indeed took place
This is what the Court said at page 159 -160 of the printed record of this appeal:
”The Appellant said no weight should be attached to Exhibit 16A 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 16A- 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 16A 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 16A that was admitted in evidence at the trial Court and same was in the lower Courts 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 (No.2) (2011) 17 NWLR {pt.1225) 30 at 90 Paragraphs B – C, G and T Invest Ltd v. Witt & Bush Ltd.
The content of Exhibit 16A show 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:-

…………………….F…………………….

“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 16A, 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 Mlmra (2008) 2 NWLR (pt.1071) 378 at 410-411 paras F.B.
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 17A, 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 it is not a privy, even though the contract is in his favour or benefit. In aid Learned Counsel cited Makwe v. Nwukor (2001) 14 NWLR (Pt.733) 356 at 358 and 359, UBA PLC v. Jargaba (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 University of Jos regarding the sale of the iron pipes and the sharing formula being bandied around by the respondent, there was never any 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 17A 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 17A, 18, 19, 20 and 21 came to the following conclusion:
“Having regard to Exhibits 19, 20 and 21, therefore the conclusion 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 (#35,000) should be deducted for the commission and other commitments as agreed with the former manager. Thherefore we are applying as agreed to the branch manager to give us #35,000 out of #147,612.50 should be paid to EDILCON account and the University as per agreement. (Underlining 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 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:

…………………….G…………………….

That out of the aforesaid the sum of #40,000.00 was paid to the company to enable it settle salaries of watchmen who took care of the pipes, that the balance of #745,000.00 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 EDILCONS 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 A.G. Rivers State v. A.G. Akwa-Ibom State (2011) 8 NWLR (Pt.1248) 31 at 81.
This issue for determination relates to Exhibit 17A 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 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 Appellants indebtedness to the respondent for the overdraft facility which stood at N540, 181.83 as at 29th 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 l do not think, Learned Appellants Counsel is correct. DW1 at page 62 0f 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 #780,823.57 and the Defendant deducted #540,181.93, he would have a balance of #240, 641.74. This would have been correct if nothing was shared between the University of Jos and the defendants at the ratio of 53.45
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 #1,181,176.10 as at 27/9/93 after the Appellants share of 48% 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 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 as at 27/9/93.
On the basis of the

…………………….H…………………….

partys 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 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, counter-claimed against the cross Respondent as follows:
(a). #86,597.02 as debt
(b). Interest at Bank rate of 22.50% from 1/2/92 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 1/10/93 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 lsa Abubakar Magaji (JCA) held:
Consequently the award of 21% interest rate on the judgment debt having been made contrary to 0rder 40 Rules 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 30/1/98 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 appellants counterclaim which it endorsed in its amended statement of defense at pages 38 – 41. At Paragraph 26 of the said amended statement of Defense and counterclaim, the cross Appellant claimed 10% post judgment interest and not 34% as claimed in the cross appellant’s brief of argument. I failed to see where the cross appellant counter claimed 34% post judgment interest, as presented by parties in their briefs of argument. With the admission by parties that the counter claim was 34%, it clearly appears that there was no agreement between the parties as to the quantum of post judgment interest. A Court has no power to make an order or grant a relief which has not been asked for by any of the parties. A Court of Law may award less, but not more than what the parties have claimed. A fotriori, the Court should never award that which was never claimed or pleaded by either party. In A. G. Federation v. AIC Ltd (2000)10 NWLR (Pt.675) 293 at 305 it was clearly held as follows:
“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 Ekpanyong v. Nyong (1975) 2 SC. 71, Obejimi v. A. G. Western Nigeria (1967) A.N.L.R. 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 Courts 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

…………………….I…………………….

appeal shall be and it is accordingly dismissed.
No Order as to cost
OLABODE RHODES-VIVOUR, J.S.C.: I have had a preview of the leading judgment which has just been raised by my learned brother, Galinje JSC. I agree entirely with his lordships reasoning and conclusion.
CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment of my learned brother, Galinje JSC. I agree that the appeal is devoid of any merit and should be dismissed with no order mode as to cost.
In respect of the cross appeal same also applies that it should be dismissed with no order as to costs.
The facts that led to the appeal and cross appeal are well spelt out in the lead judgment and I will not repeat same.
The claims by the plaintiff/appellant and the counter claim by the defendant/respondent herein are very well and explicitly set out by my learned brother Galinje, JSC.
Suffice it to say that the trial High Court in its considered judgment dismissed the plaintiffs claims and entered judgment for the defendant on its counter claim.
The Court of Appeal (lower Court) allowed the plaintiff/appellants appeal in part wherein the 21% interest rate on the judgment debt was found contrary to Order 40 of the Plateau State High Court (Civil Procedure) Rules 1987 and set aside. Hence, the further appeal now before this Court.
My brother has dealt exhaustively with all the three issues raised in this appeal and I adopt his judgment as mine. However, and just for purpose of emphasis, I will put in one or two words of mine in respect of issue No. 3, which reads as follows:-
ISSUE 3
Whether the lower Court was right when it upheld the judgment of the trial Court and entered judgment in favour of the Respondent.

It is the appellants case that it maintained a current account with the respondent and had lodged various sums of money amounting to N780, 823.57 in the said account, sometimes between January 1987 and June 1989. The evidence of PW1 was relied upon, as the Chairman and Chief Executive officer of the appellant.
While the respondent conceded to the Payment of the said sum supra, by the appellant into its account with the respondent, the cavert however was that it was disbursed by the respondent to the appellant and University of Jos in accordance with the agreement reached in Exhibits 16A, l7A and 18 respectively: that it was the appellant’s entitlement out of the sum of N780,532.57 that the respondent applied in reducing the appellant’s indebtedness to it as a result of the loan its took. The lower Court in its review could not be faulted in upholding the trial Court and entering judgment for the Respondent as rightly submitted by the Respondent’s counsel.
With the few words of mine and relying particularly on the comprehensive reasoning by my learned brother, Galinge JSC. I also dismiss the entire appeal as lacking in merit.
For the same reasons also given on the lead judgment, I find no merit in the cross-appeal which is hereby dismissed. I abide by the orders made in the lead judgment inclusive of costs.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Galinje, JSC, obliged me with the draft of the leading judgment just delivered now. I agree with His Lordship that both the main appeal and cross appeal, being unmeritorious, ought to be dismissed.
Learned Senior Counsel for the appellant, most vociferously, entreated this Court to interfere with the concurrent findings of facts by the lower Courts, citing J C. Ltd v C. M. and Partners Ltd [2002] 9 -10 SC 153, 163. With profound respect, it would seem obvious that this entreaty was prompted by a misconception of the rationale of

…………………….J…………………….

the above decision. Let me explain.
It has long been established that an appellate Court, generally speaking, should not interfere with findings of fact of trial Courts. The reason is simple. The latter Courts, that is, trial Courts, had the unique opportunity of seeing and hearing the witnesses give evidence. They not only see the witnesses, they, equally, observe all their habits and mannerisms. These include their demeanour and idiosyncrasies.
As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence: competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence. Proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise.
That is why the law takes the view that a failure in this regard would warrant the interference of the appellate Court, Adeye and Ors v. Adesanya and Ors [2001] 6 NWLR (pt.708) 1; Olatunde v. Abidogun 18 NWLR (pt. 746) 712; Adeleke v. Iyanda [2001] 12 NWLR (pt. 729) 1; Udo v. CRSNC [2001] 14 NWLR (pt.732) 116; Enilolobo v. Adegbesan [2001] 2 NWLR (pt.698) 611.
This, then, is the foundation for the number of exceptions to this general rule against non-interference. For example, one major exception to the said general rule is that, where such findings are in fact inferences from findings properly made, the appellate Court is in as good a position as the trial Court to come to a decision, Ebba v. Ogodo (1984) 1 SCNLR 372; [1984] 4 SC 84, 98-100; Fabunmi v. Agbe (1985) 1 NWLR (pt. 2) 299, 314; Fatoyinbo v. Williams [1956] SCNLR 274;(1955) 1 FSC 87; Ukatta v. Ndinaeze (1997) 4 NWLR (pt. 499) 251, 263.
This explains the prescription that an appellate Court will also interfere with findings of fact where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious, Atolagbe v Shorun (1985) LPELR -592 (SC) 31; C-D. Such a perverse finding is a finding of facts which is, merely, speculative and is not based on any evidence before the Court. It is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge,Iwuoha and Anor v. NIPOST and Anor (2003) LPELR  1569 (SC) 39-40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (pt. 13) 407.
In all, then, a decision is said to be perverse: (a) When it runs counter to the evidence; or (b) Where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) When it has occasioned a miscarriage of justice, Missr v. Ibrahim (1975) 5 SC 55; Incar Ltd. v. Adegboye [1985] 2 NWLR (pt. 8) 453; Atolagbe v. Shorun [1985] 4 SC (pt. 1) 250.

Learned senior counsel for the appellant failed to show how the concurrent findings of the lower Courts could be pitch-forked into the above categories!
Contrariwise, I agree with the leading judgment that Chief G. Ofodile Okafor, SANs submission on this point is unanswerable. Chief Ofodile Okafor, SAN, for the respondent, had canvassed the view that the judgment of the lower Court is not perverse based, as it was, on facts, evidence and the relevant laws applicable to the case. I, entirely, endorse this effervescent submission. Accordingly, I fail to see how this Court could, justifiably, interfere with the said concurrent findings of the lower Courts.
Having said that, I must observe here that for the eloquent reasons advanced in the leading judgment, while the main appeal must fail; the cross appeal must suffer the same fate since the post-judgment interest was awarded contrary to established principles, Ekwunife v Wayne (W/Africa) Ltd [1989] 5 NWLR (pt. 122) 422; also, C. C. Nweze, Law and Procedure on Suits on the Undefended List (Enugu: Hamson Publishers, 1998) passim.
AMIRU SANUSI, J.S.C.: I was opportuned to read the advance copy of the Judgment prepared by my noble lord, Paul Adamu Galinje JSC, just delivered. His lordship has painstakingly treated all the salient issues canvassed by learned senior counsel for the parties in this appeal before he arrived at the conclusion that this appeal and the cross appeal are devoid of merit. I entirely agree with his reasoning and the conclusion arrived at which I also adopt as mine.
In this instant appeal, both lower Courts have made concurrent findings with regard to the fate of the case in other words, the trial Court found in favor of the respondent defendant and dismissed the plaintiff’s/appellant’s claim. On appealing to the Court below, that Court affirmed the decision of the trial Court and ultimately dismissed the appellant’s appeal before it. That goes to show that there had been concurrence in the findings of the two lower Courts.
It has been a well established principle of law that unless there is glaring evidence on the record of appeal, that there is evidence of error in law or fact which might lead to or had occasioned a miscarriage of justice, this Court will always be hesitant to interfere with or disturb the concurrent findings of facts of two lower Courts. This Court could only interfere with such concurrent findings if the appellant had satisfied or convinced it that there existed substantial error apparent on the face of the record of proceedings showing or manifesting that such findings are perverse, which I must stress here, that the present appellant did not satisfactorily demonstrate that in this instant case. See Ibodo vs Enarofia (1980) 5-7 SC 42; Ogundiyan vs State (1991) 4 SC 160; Otukpo vs John & Anor.
In the absence of any cogent reason shown or advanced by the appellant that the concurrent findings of the two lower Courts are perverse. I will refuse to interfere with or disturb the concurrent findings of the two Courts below in this instant appeal.
Thus, with these few remarks, and for the detailed reasons ably advanced in the lead judgment of my learned brother Paul Galinje JSC, I will hereby also dismiss both the main appeal and the cross-appeal for both being devoid of merit. Appeal and cross appeal are hereby dismissed. I abide by the order on costs in respect of the main appeal as awarded in the lead judgment.

Appearances

Solomon E. Umoh, SAN with him, Chidimma Dioji (Miss), Felix Abiodun, Esq. For Appellant

AND

G, Ofodile Okafor, SAN with him, Philemon Tunyang, Esq., D. A. Dalong, Esq., Joy Onyekwuluje and Ngozi Ofodile-Okafor For Respondent

Leave a Reply

Your email address will not be published. Required fields are marked *