Chief S. O. Agbareh & Anor V. Dr. Anthony Mimra & Ors (2008) LLJR-SC

Chief S. O. Agbareh & Anor V. Dr. Anthony Mimra & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

The 2nd respondent-a German company, appointed the 2nd appellant, as its only agent for the purpose of procuring contracts for the installation of traffic lights in the Federal Capital Territory, Abuja (traffic light project). Both parties, entered into a written agreement dated 30th November, 1992 and 1st December, 1992 respectively. (See pages 111 to 115 and 116-119 of the records). The two agreements, provided for arbitration in respect of any dispute that may arise between the parties relating to the interpretation of the said agency agreements (see clause 18). By the two agreements, the 2nd respondent, agreed to pay the 2nd appellant, a remuneration of 35% (thirty-five percent) of the contract price procured by the 2nd appellant.

The 2nd appellant, procured contracts from the Federal Capital Development Authority (hereinafter called “the FCDA”) and especially, the contract for the installation of traffic lights at 64 junction, Abuja which was for the sum of N176,839,780.00 (One hundred and seventy six million, eight hundred and thirty-nine thousand, seven hundred and eighty naira) which was later reviewed upwards to N505.779,424.50 (Five hundred and five million, seven hundred and seventy-nine thousand, four hundred and twenty-four naira, fifty kobo) less withholding tax and vat. The FCDA, was to effect payment in four installments. The 1st installment of the sum of N70,735.912.00 (Seventy million, seven hundred and thirty-five thousand, nine hundred and twelve naira), was paid by the FCDA. In terms of or in compliance with the said agreements, the 2nd respondent, paid the 2nd appellant, the sum of N24,757,569.20 (Twenty-four million. seven hundred and fifty-seven thousand, five hundred and sixty-nine naira twenty kobo).

A dispute later arose between the patties as a result of concealing from the 2nd appellant of relevant documents and the payment by the FCDA of the pending sum of N439,090,342.80 (Four hundred and thirty-nine million, ninety thousand, three hundred and forty-two naira eighty kobo) viz AIE NO. BD/398/96. Clauses 3 and 4 respectively of the agreements, had provided thus:-

“The company (i.e. the 2nd respondent) shall give to the agent (i.e. the 2nd appellant) copy of every letter and or agreement in relation to any contract procured by the agent.”

In other words, the dispute was whether the 2nd appellant, was entitled to any further payments of the said agreed remuneration. The 2nd appellant, took out a suit at the High Court of Lagos in suit LD/2992/96 against the 1st and 2nd defendants and the Central Bank of Nigeria, claiming the following reliefs:

(1) Specific performance of the terms and conditions by the defendants of the agreement dated the 30th day of November, 1992 and the supplemental agreement dated the 1st day of December, 1992 between the plaintiffs and the defendants.

(2) An order for a clean account of contracts in respect of all the traffic lights contract at phase 1 and phase II, Abuja.

(3) Payment over to the plaintiff of all outstanding sums found due to the plaintiffs in accordance with the said agreement and INTEREST thereon at the current Central Bank of Nigeria rate per annum until the commission and remuneration due is fully paid up to the plaintiffs.

(4) An order directing the defendants to give to the plaintiffs a copy of every letter, agreement and document in relation to the contracts procured by the plaintiffs.

(5) INJUNCTION restraining the defendants by themselves, servants, agents, privies or any person by whatever name so called from disturbing, depleting and/or withdrawing any sum of money already collected or to be collected by the defendants from the Federal Capital Development Authority, Abuja in respect of Abuja traffic lights installations subject matter of this action and/or lodged in any of the bank accounts maintained or operated by the defendants without paying the commission due to the plaintiffs in accordance with the terms and conditions of the agreements between the parties dated 30/11/92 and 1/12/92 respectively.”

It need be stated that the 2nd respondent did not file any process, but agreed to settle the matter amicably out of court. In consequence, terms of settlement, were agreed upon, prepared and signed by the parties and their respective counsel and subsequently filed in court, consent judgment was entered by Famakinwa, J, for case of reference, the said judgment which appears at page 20 of the records, read inter alia, as follows:

“…By consent judgment is hereby entered in favour of the plaintiffs against the defendants (sic) in the following terms:-

(1) That the agreement dated the 30th day of November; 1992 and supplemental agreement dated 1st day of December, 1992 is between plaintiff and the 2nd defendant and are only binding on them.

(2) That the 1st plaintiff and 1st and 3rd defendants are not parties to this agreement referred to in (1) above and should not be parties to this agreement.

(3) That the 2nd defendant has always performed its obligations under the agreement and see no reason for this process.

(4) That the 2nd plaintiff in accordance with the terms of the agreement shall be paid 35% share of the current cheque being expected by the 2nd defendant as per the AIE (Authority to Incur Expenditure) No. BD/398/1996 dated the 2nd August, 1996.

(5) That the above payment be made within 7 days after the crediting of the amount to the account

of justice when they failed to consider the issues for determination raised and argued by the appellants (as respondents before the Court of Appeal) arising from the grounds of appeal filed before the Court of Appeal when the presiding Judge (sic) stated thus:

“The judgment creditor also formulated four issues for determination but I shall be guided in this judgment by appellant’s issues for determination.”

“GROUND THREE:

The learned Justices of Appeal (sic) misdirected themselves on the facts when they only pronounced on clause 4 of the consent judgment rather than reading, interpreting (sic) the consent judgment as a whole document and particularly clause ONE thereof which stated that parties are bound by the two agreements of 30/11/96 and 1/12/96 respectively.

GROUND FOUR:

The judgment is against the weight of evidence.”

Observation

It is noted by me that in the said notice of appeal dated and filed on 18th May, 2000 under the “part of the decision of the lower court complained of’, the sum of the 3rd C.V. payment, is stated to be N71,162,243.32 while under GROUND ONE and its No.1 “particulars of misdirection”, the sum is stated to be N71,162, 943.32. But under “relief sought”, from this court, the sum stated, is N71,169,942.32k. This is really, with respect, not only confusing, incorrect and indeed, very disgusting to me.

The appellants have formulated two (2) issues for determination, namely:-

“ISSUE ONE

Whether having regards to the agreement dated 30/11/92 and 1/12/92 between the 2nd appellant and the 2nd respondent under which various payments have been made relating to the traffic light project and realizing that the two said agreements were the pivot in the consent judgment of 1/11/96 between the parties, the Court of Appeal was right in isolating clause 4 or the consent judgment for decision on the ground that the word “current” therein referred only to the 2nd payment embodied in the said consent judgment and that the 2nd appellant was not entitled to the payment of 35% N71,169,943.32 being the 3rd C.V. payment for the installation of traffic lights at Abuja even though Parry Osayande and Parry Blue Chips had been paid by the 2nd respondent out of the 3rd C.V. payment.

ISSUE TWO

Whether there is breach of the provision of rules 10 and 26 of the Rules of Professional Conduct in the Legal Profession (sic) published in the Federal Republic of Nigeria Official Gazette No.5 of 18th January, 1990 Volume 67 by Messrs. Kehinde Sofola & Co. who acted for the 2nd appellant and others in settlement at a stage of the dispute among the parties for which he was paid N500,000.00 as legal fees by the 2nd appellant in connection with the execution of the installation of traffic light project at Abuja the subject matter of this appeal.”

On its part, the 1st and 2nd respondents, have formulated what they describe as “the only competent issue that can rightly arise from the appeal of the appellants … It reads thus:-

“Whether the Court of Appeal was right when it held that the sum of N71,169,943, (sic) later paid to the 1st and 2nd respondents by the Federal Capital Development Authority (after the appellants had been paid 35% share of the current cheque) being expected as per paragraph 4 of the consent judgment does not form part of paragraph 4 of the consent judgment of 1st November 1996,

When this main appeal and the cross appeal of the 3rd respondent/cross appellant came up for hearing on 16th October, 2007, the appellants and their learned counsel, were absent without any reason brought to the attention of the court. However, the clerk of court, informed the court that the learned counsel for the appellants- one Oji Esq. was in court on 17th October, 2006, when this instant appeal was adjourned to 16th October, 2007 for hearing. That in spite of this fact hearing notices, were also sent out to the parties on 6th November, 2006.

Kayode Sofola Esq. (SAN) – learned counsel for the 1st and 2nd respondents, with him Ikolodo (Miss) told the court that the appellant brief dated 11th June, 2001, was filed on 12th June, 2001 and that they also filed a reply brief on 27th May, 2004. That the appellants’/cross respondents’ reply brief to the cross appellant’s brief, was filed on 6th October, 2004. He also referred the court to the appellants’/cross respondents’ brief to the cross appellant’s brief filed on 11th May, 2005. The learned SAN also told the court that the 1st and 2nd respondents, filed their brief on 18th February, 2004 and their brief in response to the 3rd cross appellant’s/respondent’s brief on 27th September, 2004. He adopted their two (2) briefs and urged the court to dismiss the appeal.

Learned counsel for the 3rd cross appellant – Ezekwueche. Esq. told the court that they did not file any brief in respect of the main appeal, but that they filed a brief in respect of their own cross appeal, on 5th September, 2002 and the cross appellant’s reply brief on 14th January, 2005. He adopted the said briefs and urged the court, to allow the 3rd respondent’s/cross appellant’s appeal. He stated that he represents the garnishee and that they want the court to make an order that whosoever wins, should collect the money from his client. He however, stated that the garnishee order, has been set aside.

Query – As a result of the Court of Appeal judgment

Pursuant to order 6 rule 8(6) of the rules of this court (as amended in 1999), the appeal of the appellants, was treated as having been argued and will be considered as such. Judgment was thereafter, reserved till today.

Before going into the merits of this appeal, I wish to further observe that it appears to me, with the greatest respect, that no seriousness and diligence, were also employed/exhibited in the preparation or vetting of the appellants’ brief of argument. This is worrisome and regrettable. At page 1 thereof, under

INTRODUCTION/STATEMENT OF FACTS – first paragraph, it is therein stated inter alia:-

“By an agreement …. between the 2nd appellant and the 2nd respondent, the 2nd appellant (instead of the 2nd respondent appointed the 2nd respondent (instead of the 2nd appellant) as the only agent….Abuja.”

See and compare with the immediate paragraph after CLAUSE 12. Reading down the said page 1 in what I regard as paragraph 6, the following appears:

“From the 1st installment of N70,735,912.00 the 2nd appellant was paid N24,757,569.20 by the 2nd appellant (instead of 2nd respondent) being 35% of the said sum.”

At page 3 thereof, the calculation of the amounts paid, are erroneous and misleading. For instance, where the figure/amount of N314,572,275.66 should have been stated, what appears at the first paragraph is N314,572.66 which is stated to be “out of the sum of N439,090.342.80 stated on the no. BD/398/96 leaving a clear balance of N124,518,067.14 outstanding yet to be paid to 2nd respondent.”

At page 11 thereof – first paragraph, it is stated inter alia, thus:

Immediately after the consent judgment, the FCDA however was only able to pay N314,572,276.66 as 2nd CV payment and the 2nd respondent paid N110,100,296.50 to the 2nd respondent (instead of the 2nd appellant) leaving a balance ….to the 2nd appellant.”

At the said page 11 of the brief, in paragraphs 3, 4 and 5, what appears throughout, is stated to be N71,743.32 (instead of N71,169,942.32).

Lastly, the said issues of the parties, were not related to any of the grounds of appeal. In my respectful view, only one issue is relevant in the determination of this appeal – namely issue ONE of the appellants and the lone issue of the 1st and 2nd respondents which arise from grounds 1, 3 and 4 of the grounds of appeal.

Since no issue was raised by any of the parties in their respective briefs in respect of ground two of the grounds of appeal, I will ignore/discountenance it and accordingly, strike out the ground, on the settled law and practice of the appellate courts firstly, that the courts consider only the issues and not the grounds of appeal. See the cases of Salibu v. Yassin (2002) 4 NWLR (Pt.756) 1, (2002) 2 SCNJ 14 at 24 and Ezemba v. Ibeneme & Anor. (2004) 14 NWLR (Pt.894) 617 (2004) 7 SCNJ 136 at 155-156. Secondly, a ground of appeal, not having any argument proffered to cover it, is deemed abandoned and will be struck out. See the cases of Alhaji Are & Anor. v. Ipaye & Anor (1986) 3 NWLR (Pt.29) 416 at 418 C.A.; Chukwuogor v. Obiora (1987) 3 NWLR (Pt. 61) 454 at 479; (1987) 7 SCNJ 191 also cited in the case of Lemboye & 3 Ors. v. Ogunsiji & 2 Ors. (1990) 6 NWLR (Pt. 155) 210 at 231-232 CA; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; (1992) 7 SCNJ 355 and Ngilari v. Mothercat Ltd (1993) 8 NWLR (Pt. 311) 370 just to mention but a few. This is because, a ground of appeal must have an issue to cover it. See Ibrahim v. Mohommed (1996) 3 NWLR (Pt. 437) 453; Dieli & Ors. v. Iwuno & Ors. (1996) 4 NWLR (Pt. 445) 622; (1996) 4 SCNJ 57; Ogun v. Asemah (2002) 4 NWLR (Pt. 756) 208 and many others.

Finally, an appellate court can, prefer an issue or issues formulated by any of the parties and can itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) 1 & anor v. Da Rap. Kwan & 4 Ors. (2000) 8 NWLR (Pt.670) 685. (2000) 5 SCNJ 101; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbebla & 3 Ors. (2003) 2 NWLR (Pt.804) 399, (2003) 1 SCNJ 463 at 479 and Emeka Nwana v. Federal Capital Development Authority & 5 Ors. (2004) 13 NWLR (Pt.889) 128 at 142-143; (2004) 7 SCNJ 90 at 99 citing several other cases therein. In my respectful view therefore, the excerpt reproduced under this ground two, amounts to no more, than the learned Justice, stating that he preferred the issues formulated by the said appellants. His Lordship, was entitled to do so, provided, that those issues so formulated, clearly took care of the main controversy between the parties. I have already stated that since none of the parties formulated any issue in respect of the said ground two the said ground stands and remains struck out.

Let me therefore, once again, passionately appeal to some or few learned counsel who prepare and file processes in all our Superior Courts of record and more especially in the appellate courts and in this court in particular to be more painstaking and exercise patience in preparing their documents and vetting them before they are filed in the courts. Even if their services are free of charge but as professionals once a case or a brief is accepted, then, there is a duty on the part of such counsel, to do a thorough job in respect of processes to be filed in the court. Learned counsel must bear in mind and infact or indeed assume that those documents, will be read by the Judge or Justices hearing and determining the case or matter.

In this appeal, with utmost respect to the parties and their learned counsel, the issue is the interpretation of the consent judgment as a whole and not just that of paragraph/clause 4 in isolation. Documentary evidence in this matter, is crucial. There is therefore, infact, speaking for myself, no need for any oral evidence which may amount to giving evidence in respect of the content of a document or documents. This is because of the settled law firstly, that prima facie oral evidence will not be admitted to prove, vary or alter or add to the term of any contract which has been reduced into writing when the document is in existence except the document itself. See the cases of Da Rocha v. Hussain (1958) 3 FSC 89 at 92: (1958) SCNLR 280 and S.C.O.A. (Nig.) Ltd. v. Bourdek Ltd. (1990) 3 NWLR (Pt.138) 380 at 389 and many others. Secondly, documentary evidence it is settled, is the best evidence, See the case of The Attorney-General, Bendel State & 2 Ors. v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.37) 547 at 565.

In the case of FSB International Bank Ltd. v. Imano (Nig.) Ltd. (2000) 11 NWLR (Pt.679) 620 at 637; (2000) 7 SCNJ 65, this Court per Achike, J.S.C. (of blessed memory) stated inter alia, as follows:-

“I must emphasise that having regard to the nature of this application and there being nothing but documentary evidence placed before us that this court is in as good a position as the trial High Court, as well as the Court of Appeal, to examine the entire documentary evidence and the other documents placed before the lower courts.”

In my respectful view therefore, the mere fact that the parties did not testify and tender the said agreements between them is of no moment or consequence and it is immaterial in the circumstances of the case leading to this instant appeal. Firstly, there is no dispute between the parties to the said agreements, that the agreements do not exist or that they did not sign/execute the same. Secondly, the said agreements are part of the contents of the records sent to this court from the court below. In other words, these said agreements were before the two courts below. The law is settled that records of proceedings/appeal bind the parties and the court until the contrary is proved. See the cases of Horst Sommer & Ors. v. Imade (1992) 1 NWLR (Pt.219) 548; (1992) 1 SCNJ 73; Texaco Panama Incorporation Owners of Vessel “M. V. Star Tulsa” v. Shell Petroleum Development Corporation of Nig. Ltd. (2002) 5 NWLR (Pt.759) 2009 (2002) 2 SCNJ 102 at 118 and Ogolo v. Fubara (2003) 11 NWLR (Pt.831) 231, (2003) 5 SCNJ 142 at 168, just to mention but a few. This is because, there is the presumption of its genuineness, although this is rebuttable. See the case of Alhaji Nuhu v. Alhaji Ogele (2003) 18 NWLR (Pt.852) 251 at 272; (2003) 12 SCNJ 158 at 172. Again, a court is entitled to look at the contents of its file or records and refer to it in consideration of any matter before it. See the cases of West African Provincial Insurance Co. Ltd. v. Nigerian Tobacco Co. Ltd. (1987) 2 NWLR (Pt. 56) 299 at 306; Osafile v. Odi Ltd. (No.1) (1990) 3 NWLR (Pt. 137) 130: (1990) 5 SCNJ 118; Chief Agbasi & Ors. v. Ebikorefe & Ors. (1997) 4 NWLR (Pt. 502) 630 at 648: (1997) 4 SCNJ 147 at 160: Agbahomovo & 2 Ors. v. Eduyegbe & 6 Ors. (1999) 3 NWLR (Pt. 594) 170; (1999) 2 SCNJ 94 citing two other cases therein and Ndayako & 6 Ors. v. Dantoro & 6 Ors. (2004) 13 NWLR (Pt.889) Pg. 187 (2004) 5 SCNJ 152 at 177 – per Edozie. J.S.C. just to mention but a few. See also section 74/75 of the evidence act.

In the circumstances of the above established law, I will therefore, treat or deal with the said issue ONE of the appellants together with the lone issue of the 1st and 2nd respondents. I have earlier in this judgment reproduced the said consent judgment. No.1 thereof states:-

“That the agreement dated 30th day of November, 1992 and supplemental agreement dated 1st day of December, 1992 is (sic) between plaintiffs and the 2nd defendant (i.e. the 2nd respondent) and are binding.” (the italics mine)

Of course, the consent judgment talks about the said two agreements between the appellants and the 1st and 2nd respondents. These two said agreements have already been referred to by me in this judgment and they can be found at pages 110 to 119 of the records. They are part of the records before the court below and this court and also referred to in the said consent judgment at page 20 of the records. Of course, it is also settled that if parties enter into an agreement, they are bound by its items and that one or the court cannot legally or properly read into the agreement, the terms on which the parties have not agreed and did not agree to. See the case of Evbuomwan & 3 Ors. v. Elema & 2 Ors. (1994) 6 NWLR (Pt.353) 638, (1994) 7-8 SCNJ (Pt. II) 243.

Also settled, is that an agreement is binding only on the parties thereto and not on third parties. See the case of W.D.N. Ltd. v. Oyibo (1992) 5 NWLR (Pt. 239) 77 at 100-101 C.A. Thus, if and where there is any disagreement as to what is or are the term or terms of an agreement on any particular point, the authoritative and legal source of information for the purpose of resolving the disagreement is of course the written agreement executed by the parties. So said this court in the cases of Union Bank of Nigeria Ltd v. Sax (Nig.) Ltd & Ors. (1994) 8 NWLR (Pt.361) 150, (1994) 9 SCNJ I at 12; and Mrs. Layade v. Panalpina World Transport Nig. Ltd. (1996) 6 NWLR (Pt. 456) 544: (1996)7 SCNJ 1 at 14-15 citing the cases of Olaloye (Mrs.) v. Balogun (Madam) (1990) 5 NWLR (Pt. 148) 24: (1990) 7 SCNJ 205; and Union Bank of Nig. Ltd. v. Prof Ozigi (1994) 3 NWLR (Pt. 333) 385: (1994) 3 SCNJ 42. See also the case of Alhaji A. Saba v. Nigerian Civil Aviation Training Centre & Anor. (1991) 5 NWLR (Pt.192) 388; (1991) 7 SCNJ 1. As a matter of fact, section 132 of the evidence act states that only admissible evidence of a contract, is the contract itself although the section recognizes exceptions. See the case of Arjay Ltd. & 2 Ors. v. Airline Management Support Ltd. (2003) 7 NWLR (Pt. 820) 577 (2003) 2 SCNJ 149 at 169.

At page 105 of the records, the learned judge in his said ruling, stated inter alia as follows:

“The basis of the consent judgment is the agreement freely entered into by the judgment creditor and the judgment debtor (2nd plaintiff and 2nd defendant). In the consent judgment, the 2nd plaintiff is to be paid 35% share of the cheque that was still being expected by the 2nd defendant as at 1/11/96, the date the consent judgment was entered for the parties. The sums were not paid to the judgment creditor. They ought to be paid. Accordingly the 5th garnishee, the Fidelity Union Merchant Bank Ltd is hereby ordered to pay the sum of N775.990.20 to the judgment creditor garnishor forthwith.”

At page 291 of the records, the court below, rightly in my respectful view identified the “central issues in the appeal” i.e. “the different interpretations which the judgment debtors and the judgment creditors gave to the consent judgment given by Famakinwa. J. on 1-11-96.”

It is pertinent for me to observe, that the court below identified this fact at page 293 of the records where the following appear, inter alia:

“As I said earlier, the 2nd defendant debtor paid to the 2nd judgment creditor the sum of N110,296.50 out of the sum of N314,572,275.66 paid to it on 28-2-97. On 7-10-97, the sum of N71,162,169, 943.32 was paid to the 2nd judgment creditor.”

It then posed the question thus:

“The question that arises for consideration is – Did paragraph 4 of the consent judgment above apply to the payment of N71,162 (sic) 943.32 such that one could hold that by the force of the judgment, 2nd judgment debtor was bound to pay the 2nd judgment creditor the sum of N24,909,480.11 representing 35% of the payment

And it answered thus: “I think not.”

It then stated inter alia, as follows:

“The words of the consent judgment clearly speak for themselves. It was not for the court below to alter or vary them even if in the light of disputations before it, it thought that the parties might have intended something other than was recorded in the consent judgment….”

This last sentence, in my respectful view, was not so or true and it was unfair to the learned trial Judge. It then at page 294 thereof, completely agreed with the submission of the late learned Senior Advocate of Nigeria – Kehinde Sofola, SAN, for the 2nd respondent in his brief which reads as follows:-

“It is respectfully submitted that the rules of interpretation or construction do not allow words used to be altered – see Okumagba v. Egbe (1965) 1 All N.L.R. 62. Words used are not to be treated as surplusage (sic). See Nasr v. Bovari (sic) (1969) All N.L.R. 35. Words are not to be added. See Mabinori (sic) v. Ogunleye (1970) 1 All N.L.R. 17. Therefore altering, ignoring or adding words is virtually amending the provision and that is beyond the powers of the courts. The function of the courts is to expound the meaning of the .”

Surprisingly and in spite of its agreement to the said submission, the court below proceeded with respect, to do the opposite of the above firmly laid/established principles of law or rules of interpretation by ignoring or amending so to speak, the said agreement of the parties that are binding on them by confining itself to, paragraph/clause 4 and interpreting it in isolation to the other paragraph/clauses of the said consent judgment. This was also done, in spite of the overwhelming facts in the records and the settled law, I say so because, even in the case of Union of Bank of Nig. Ltd. (not UBA Ltd.) & Anor v. Nwaokolo (1995) 6 NWLR (Pt.400) 127 said to be at 132 (it is at (Pt.127) and it is at page 154 cited and relied on by the 1st and 2nd respondents in their Brief, (it is also reported in (1995) SCNJ 93), (and which was/is not very correctly and completely reproduced and with some typographical spelling by the learned counsel for the appellants at page I of their reply brief to the 1st and 2nd respondents’ brief and under issue one of the appellants) this Court per Onu, J.S.C. stated at page 154 of the NWLR inter alia, as follows:

“It is trite that in the construction of documents, the cardinal principle is that the parties are presumed to intend what they have infact said or written down. Accordingly, the words employed by them will be as construed and should be given their ordinary and plain meaning unless, of course, circumstance, such as trade usage or the like, dictate that particular construction ought to be applied in order to give effect to the particular intention envisaged by the parties. See Aouad & Another v. Kessrawani (1956) 1 FSC 35; (1956) SCNLR 83. Nwangwu v. Nzekwu & Another (1957) 3 FSC 36; (1957) SCNLR 61 and A.-G., Kaduna State and Others v. Atta & 2 Others (1986) 4 NWLR (Pt.38) 785. As a general rule therefore, words should be given their ordinary and plain meaning and additional words or clauses ought not to be imported into a written agreement or document unless it is impossible to understand the agreement or document in the absence of such additional words or clauses. See Solicitor General, Western Nigeria v. Adebonojo (1971) 1 All NLR 178 and Union Bank of Nigeria Ltd. v. Ozigi (1974) (sic) (it is 1994) 3 NWLR (Pt. 333) 385. The point must also be made that it is not the function of a court to make or rewrite a contract for the parries. See Fakorede & Ors. v. A.-G., of Western State (1972) 1 All NLR (Pt. 1) 178 & 189 and British Movietonews Ltd v. London & District Cinema Ltd (1912) A.C. 166. And so, where parties have embodied the terms of their contract in a written document, extrinsic evidence, whether oral or contained in other writings, is not admissible save in a few accepted exceptions, to add to, vary, contradict or subtract from the terms of such document. See Olaloye v. Balogun (1990) 5 NWLR (Pt.148) 24.”

Clause 2 of the 1st agreement at page 111 which is the same as the records clause 12 at pages 117-118 of the records, provides as follows:-

“This agreement shall be deemed to have commenced at the signing of this agreement and shall continue in force until final pavment on and/or execution of any contract covered by this agreement. If by 31st December, 1993 no contract is awarded to the company both parties are free to terminate or renew this agreement” (the italics mine)

It is not in dispute that the FCDA were to liquidate the total payment of the said contract sum in (4) four instalments. There is evidence already noted in this judgment that there was no problem in the payment of the first instalment When the (2nd) second instalment was made and there rose a problem created by the 2nd respondent, this led to the consent judgment after an arbitration. The 2nd respondent, thereafter, paid the 2nd appellant

For purposes of emphasis, there are pages 56 and 57 of the records. Page 57, shows, the payment voucher of the 3rd instalment for the said sum of N71,169,943.32. Therein, it is stated inter alia, as follows:-

“Being 3rd C.V payment made to the above named Coy (i.e. the 2nd respondent) jar supply and installation of traffic light at 64 junction in Abuja.” (the italics mine)

Evidence of this payment is exhibit C.

It is therefore, beyond doubt that the said payment, was the said 3rd installment of the said contract, the subject-matter of the said agreements. It was with respect dishonest, false and fraudulent on the part of the 2nd respondent, to say or claim that the said payment, was in respect of another/separate contract. Let me debunk the said assertion or claim by the 2nd respondent.

I have already referred to clause 2 of the said agreement of the 1st agreement and Clause 3 of the 2nd agreement the wordings of which, are clear, unambiguous and need no interpretation. Clause 2 or 3 of both agreements also reproduced at page 3 of the appellants’ reply brief provide as follows:-

‘This agreement shall cover all contracts or projects for the installation of traffic lights in the Federal Capital Territory Abuja.”

Clause 3 of the 1st agreement III or clause 4 of the 2nd agreement at page 116 of the records which provides that “the company shall give to the agent, copy of every letter and or agreement in relation to any contract procured by the agent”, can be seen to flow from the said clause 2 or 3 above.

Clause 7 of the 1st agreement or clause 8 of the 2nd agreement, reads as follows:-

“Payment to the agent shall be only pro-rata to the sum paid at any time for any project under this agreement.”

Clause 8 of the 1st agreement of clause 9 of the 2nd agreement, provides thus:-

“All payments or commission paid to the agent shall be in the same currency as received by the company and shall be determined and payable pro-rata to the amount paid to the company.”

These clauses are also clear and unambiguous and are still in respect of the one and only one contract covered by the said two agreements.

Now, at pages 101 and 102 of the records, the learned Judge in his said ruling of 22nd April, 1999, made some findings of fact. He stated inter alia, as follows:-

“Paragraphs 5, 6, 7 and 8 show the justification for the Garnishee proceedings. It reads:-

5. That the FCDA paid the said payment of N71,169,943.32k to judgment debtor with Central Bank cheque No.001163585 of 7/10/97.
6. That the Slim of N24,909,480.11k is due to the judgment creditors out of the payment of N71,169,943.32k.
7. That the judgment debtors have refused, jailed or neglected to par the slip of N24,909,480.11k due to the judgment creditors despite repeated demand.
8. That the Garnishees jointly and severally have the finds of N71,169.743.32k under their control in the accounts of the judgment debtors kept with them.

The above is not denied. The 5th garnishee, the Fidelity Union Merchant Bank Ltd swore to a further and better affidavit to show cause on 6/10/98.

In the affidavit supra paragraph 4 is clear. It reads:-

4. That the statement of accounts showed the account of the 2nd judgment debtor from April, 1998 instead of October 1997 when the sum of N71,169,943.32 was lodged into its account with the bank.

Exhibit B attached to the said affidavit is the statement of account of the 2nd judgment debtor. Its contents are in support of paragraph 4 above.

It is thus settled that the sum of N71,169,943.32 was in the account of the 2nd judgment debtor the 5th garnishee in October 1997.”

At page 104 thereof, His Lordship stated inter alia, as follows:-

The 5th garnishee, the Fidelity Union Merchant Bank Ltd relied on two affidavits to show cause dated 1/5/98 and 6/10/98. It explains on the affidavit supra the movement of the sum paid in thus:-

5. That on 8/10/97 it deposited a cheque for N71,169,943.32 in it’s account aforesaid for clearing.
6. That the said cheque was cleared and its account credited accordingly.
7. That it draw cheques on the said account and the bank honoured same in the ordinary cause of banker/customer relationship.
8. That as at 16/7/98 when the garnishee order was served onus, the credit balance in its account was N772.954.62 (Seven hundred and seventy-two thousand, nine hundred and fifty-four naira, sixty-two kobo) credit.
9. That the statement of its account with our bank as at today, show the credit balance in the account to be N773,990.80 credit.

The said statement of account is attached hereto and marked ‘A’ the above is not disputed.”

Finally, for purposes of emphasis. I again reproduce his Lordships finding of fact and holding at page 105, inter alia, as follows:

The basis of the consent judgment is the agreement freely entered into by the judgment creditor and the judgment debtor (2nd plaintiff and 2nd defendant). In the consent judgment the 2nd plaintiff is to be paid 35% share of the cheque that was still being expected by the 2nd defendant as at 1/11/96, the date consent judgment was entered for the parties. The sums were not paid to the judgment creditor. They ought to have been paid to him. Accordingly, the 5th garnishee, the Fidelity Union Merchant Bank Ltd, is hereby ordered to pay the sum of N775,990.80 to the judgment creditor garnishor forthwith.”

The court below as I stated herein above, dealt with and interpreted paragraph/clause 4 in isolation of the other paragraphs/clauses in the said consent judgment. In the case of Martin Schroder & Co. v. Major & Co. (Nig.) Ltd. (1989) 2 NWLR (Pt.101) 1 at 12; (1989) SCNJ 210, this court per Wali, JSC, stated inter alia, as follows:-

“The object of interpreting any statute or instrument is to ascertain the intention of the legislature that had made it or that of the parties that had drawn it. This is done by reading the words used in the particular section of the statute or the document. Where the meaning is not clear by doing so, the other sections of the statute, or the whole of it, shall be read together to ascertain the meaning. This same rule applies to other instruments. The provisions of the two rules are crystal clear, one is general while the other is special….” (the italics mine)

In the case of Artra Industries Nig. Ltd. v. The Nigerian Bank for Commerce and Industry or (N.B.C.I.) (1998) 4 NWLR (Pt.546) 357 at 375 paragraph C also cited and relied on by the appellants in their said reply brief it is also reported in (1998) 3 SCNJ 97, Onu, J.S.C, stated inter alia, as follows:-

“….In interpreting a document, due regard must be given to the entire document so as to find out the correct meaning of the word in relation to the agreement…” (the italics mine)

Having regard to paragraph/clause 1 of the consent judgment and the relevant paragraphs/clauses I have already referred to and reproduced, there is nowhere in my respectful view, paragraph/clause 4 of the consent judgment, can be read, without reference to and anchoring it on the said two agreements stated to be binding on the parties, particularly having regard to clauses 2, 3, respectively, 7, 8, 11 and 12 thereof (at pages 111 to 118 of the records). I so hold. To do otherwise, with profound humility, is bound to and will do violence to the wordings of the said two agreements and distort, its/the said terms or clauses and of course, the said consent judgment.

Indeed, in the case of Unilife (not UNILIFE as appears in the appellants’ reply brief) Development Co. Ltd. v. Adeshingbin & 4 Ors. (also not properly cited) (2001) 4 NWLR (Pt. 704) 609 at 626 paragraph C per Achike, J.S.C. (of blessed memory) (not at 614 ratio 3 which is the editor’s ratio). It is also reported in (2001) 2 SCNJ 116 it was held, inter alia, as follows:

“It is a fundamental rule of construction of instruments (I will also add documents and agreements) that its several clauses, must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict to their natural meaning. Emphasising the same point, the learned authors of Halsbury’s Laws of England Vol. 12, (4th edition) paragraph 1469 stated tersely but pointedly:

‘The best construction of deeds is to make one part of the deed expound the other, and so make all the parts agree. Effect must, so far as possible be given to every word and every clause’. (the italics mine)

See also the same principle approved by this court in the case of Lamikoro Ojokolobo & Ors. v. Lapade Alamu & Anor (1987) 3 NWLR (Pt.61) 377; (1987) 7 SCNJ 98. It is ironical that Kehinde Sofola, Esq. (SAN) (of blessed memory) and who the court below “completely” agreed with his said submission reproduced by me in this judgment, appeared for the appellants in Unilife’s case (supra). Karibi-Whyte, JSC, in his contribution/concurring judgment, at page 636 paragraphs A-B. stated as follows:

“I agree with Mr. Sofola SAN in his submission that the court below was in error to have relied on clauses 3 and 6 of the lease agreement only and limited itself in the construction of the lease agreement to the construction of these clauses alone. The approach adopted in the court below is in construction of these clauses alone. The approach adopted by the court below is in violation of one of the fundamental and hallowed principles in the construction of document and written instruments, that the several parts, where there are more than one, must be interpreted together to avoid conflicts in the natural meaning in the various parts of the written document or instrument. This rule of construction was approved by this court in Ojokolobo & Ors. v. Alamu & Anor. (1987) 3 NWLR (Pt.61) 377; (1987) 7 SCNJ 98.” (the italics mine)

It is noted by me that in the above case, Achike, J.S.C. at page 625, had noted that in the Court of Appeal. Niki Tobi, J.C.A (as he then was), in his concurring judgment, expressly stated “I shall take only two clauses in the lease”. In the instant appeal, I have referred to and reproduced the question or poser by the court below as to the “central issue” for determination as to the interpretation of only paragraph/clause 4 of the consent judgment. At page 295 of the records, the court below concluded inter alia, as follows:-

“On the whole, I get the impression that parties in framing their terms of settlement in the manner they did, had in mind a particular amount of money which was to be paid vide the next cheque to be issued to the 2nd judgment debtor by the Federal Capital Development Authority. I therefore uphold appellant’s appeal on the point.

(the italics mine)

With profound humility and respect to His Lordships, this cannot be right. In fact, it is far from the truth having regard to paragraph/clause I of the said consent judgment which pointedly and unequivocally, referred to the agreements of the parties that it stated, are binding on them therefore, agree with the submission of the learned counsel for the appellants in their briefs that the court below ought to have taken into consideration, other paragraphs/clauses in the consent judgment particularly. Clause l which is the pivot so to say of the consent judgment before arriving at its said conclusion. The said paragraph/clause I, clearly referred to the agreements of the parties some of the relevant paragraphs/clauses, I have also referred to in this judgment. At nowhere from the affidavits in the records, did the appellants admit that the said sum of N71,169,943.32, does not form part of the current cheque being expected by the 2nd respondent as per AIE NO. BD/398/96. See the affidavit in support and counter affidavit at pages 13, 53 and 91 of the records. I note that the 1st and 2nd respondents, never objected before Rhodes-Vivour. J. (as he then was) nor at the court below, that the said agreements, were not exhibited or given in evidence. Any such suggestion or submission in this regard, is taken by me with respect, as an after thought made in very bad faith by the 1st and 2nd respondents. The agreements were not only exhibited in the said processes filed in that court and were relied on by the learned Judge, before his said ruling. More importantly, they are contained in the records before the court below and in this court.

When it is submitted at page 14 of the 1st and 2nd respondents’ brief that:

“Clearly the Court of Appeal was right when it held that paragraph 4 of the consent judgment did not apply to the subsequent payment of N71,162, (sic) 943.32 such that the force of the judgment the 1st and 2nd respondents were bound to pay the appellants the sum of N24,909,480.11 representing 35% of further payment after the terms of the consent judgment had been complied with.” (the italics mine)

I am thoroughly amazed because, I or one may ask, was the subsequent or further payment by the FCDA made or effected for any other contract to the 2nd respondent in respect of any other project except that relating to the said installation of the said traffic lights in Abuja Was the payment of the contract sum, not being made by install mental payments by the FCDA to the 2nd respondent Yes of course and this is not denied by the 1st and 2nd respondents. Is there any evidence by the 1st and 2nd respondents to contradict the letter from the Federal Ministry of Finance Budget Office which is at page 56 of the records and the contents of the said payment voucher at page 57 of the records In my respectful and firm view, the 1st and 2nd respondents, did not and have not adverted their “minds” and arguments, to these pertinent questions or posers. My respectful answers to the first and third questions are in the negative.

I am also amused by the further submission in the said brief that the appellants cannot rely on the cons of the two agreements to give effect to subsequent payments which they felt they were entitled to because according to them at the time the consent judgment was entered by the learned “trial” judge, the contents of the said agreements were never before the court as exhibits to enable the court examine the contents and determine the periodicity of payments. With profound respect to the learned counsel and his clients, this submission is very funny to me. This is because, if the said two agreements were not exhibited or were not before Famakinwa, J, for examination of the contents, why and how did paragraph/clause 1 of the consent judgment, refer to the said two agreements and state that they are only binding on the parties to the said agreements I or one may ask. Infact, the said consent judgment was entered “in favour of the appellants (plaintiffs) against the defendant”. In my humble view, it was because the 2nd respondent “had always performed its obligation under the agreement and was ready and willing to continue performing the same” (as stated in paragraph/clause 3 of the consent judgment), that it did not see the reason for the appellants going to court to seek for the enforcement of their entitlements under the said agreements. It is most regrettable when it is further submitted that:-

“The clause (sic) (which clause It is not stated) in the two agreements cannot be of any relevance in this court as they were not tendered in evidence in the trial court and any reference to them or quotation therefrom is with respect an exercise in futility.”

Well, if because the two agreements were not tendered and any reference to them or quotation therefrom, amounts to an exercise in futility, again, paragraph/ clause 1 of the consent judgment unequivocally states that they are binding on the parties to the said agreements and so be it! Any wonder at page 68 of the records, after the ruling of Rhodes-Vivour, J. (as he then was) of 1st July, 1999. when the learned counsel for the appellants complained to the learned Judge about the stoppage by the 3rd respondent of the cheque issued in favour of the appellants, the following inter alia, appear:

“V. O. Ijomah (learned counsel for the 3rd respondent) we received notice of appeal and we were joined. We had no alternative to stop the cheque until the matter is disposed off. I will tell my principal to give the judgment creditor (i.e. the 2nd appellant) his money. Court – You better do so quickly.”

I must confess that the stance of the 1st and 2nd respondents, is very disgusting to me to say the least. The sanctity of a contract or agreement freely entered into is no longer respected by them because of selfish monetary interest and love and quest for money. Afterwards, the case at the trial court, was fought on affidavit evidence where relevant documentary evidence including the said agreements, were exhibited.

Before I am done, I am not going to bother myself in going into what a consent judgment is all about or its meaning. That has long been settled in a line of decided authorities. See the cases of Ojora v. Agip (Nig.) Plc & Anor. (2005) 4 NWLR (Pt. 916) 515 at 537, 538 C.A. citing Woluchem v. Wokoma (1974) 3 S.C. 153 at 166, 168; Oshoboja v.Alhaji Amuda & 2 Ors. (1992) 6 NWLR (Pt. 250) 690 at 703; (1992) 7 SCNJ 317 and recently in Race Auto Supply Co. Ltd. & 3 Ors. v. Alhaja Faosat Akib (2006) 13 NWLR (Pt. 997) 333 at 354-355,359-360: (2006) 6 SCNJ 98 (2006) 6 SC. 1 (2006) 26 NSCQR 809; (2006) MJSC 190; (2006) JNSC (Pt.20) 585; (2006) 8-9 SCM 307 and (2006) All FWLR (Pt.327) 486.

In the case of General Accident Fire and Life Assurance Corporation Ltd. v. Inland Revenue Commissioners (1963) 1 All E.R. 618 at 627; (1963) 1 WLR 1207, Plowman, J. stated inter alia, as follows:-

“Dealing first with the question of construction consent order must, in my judgment, be construed in the light of any admissible evidence of surrounding circumstances, but without direct evidence of the parties intention …. Evidence of surrounding circumstances, in my opinion, includes evidence as to the nature of the dispute which was compromised by the order…… (the italics mine)

Admissible evidence in this appeal, is the said agreement of the parties which are binding on them. In my respectful view, this is a classic case where greed and perfidy of man are manifested in a very repulsive and often, mean manner. The 2nd respondent although a company and a juristic entity, was/is run by a human being. The lesson however, to humanity men and women alike and the so called businessmen, are firstly, that the courts cannot permit or allow any person to benefit from his own wrong. Secondly, every intrigue or dishonesty by any human being has an “invisible track, a loophole, weak or vulnerable spot. This is just by the way. I am satisfied that in the hearts of hearts of whosoever signed the said agreements as the director of the 2nd respondent, knows that the interpretation given by the court below, is with respect, wrong and not justified in all the circumstances of this case leading to the instant appeal. My answer therefore, to issue one of 1st appellants and the lone issue of the 1st and 2nd respondents, is rendered in the negative.

ISSUE TWO

The 1st and 2nd respondents, have rightly raised or given notice of preliminary objection in their said brief. I say rightly because, a notice of preliminary objection, may validly be raised to question either the competence of an appeal or an issue raised for determination by an appellant. See the cases of Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 at 257 & 258; and Salami v. Mohammed (2000) 9 NWLR (Pt.673) 469: (2000) 6 SCNJ 281, just to mention but a few. However, a party filing or raising it in the brief must ask the court for leave to move it before the oral hearing of the appeal commences, otherwise and this is settled, it will be deemed to have been waived and therefore, abandoned. See the cases of Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 at 270; and Oforkire & Anor v. Maduike & 5 Ors. (2003) 5 NWLR (Pt. 812) 166: (2003) 1 SCNJ 440 at 448.

I note that at page 9 of the appellants’ brief, it is stated that on 7th May, 2001, their motion for leave to appeal on law, mixed law and facts against Mr. Kehinde Sofola SAN, was struck out by this court for being incompetent. So be it. But more importantly, at page 6 of their reply brief, the said issue two has been abandoned by the appellants. In the circumstance, the same is accordingly struck out.

In conclusion, this appeal as regards issue two of the appellants is meritorious and it succeeds. I hereby allow the appeal and set aside the decision of the court below. I hold that the appellants are entitled to 35% (thirty-five per cent) share of the said sum of N71,169,943.32 (seventy-one million one hundred and sixty-nine thousand, nine hundred and forty-three naira, thirty-two kobo) which must be paid to them by the 1st and 2nd respondents forthwith. Costs follow events. The appellants are entitled to costs which is fixed at N10,000.00 (ten thousand naira) payable to them by the 1st and 3rd respondents. I have no doubt in my mind that the 2nd respondent/judgment debtor, was in absolute contempt of the High Court by stopping the execution of that court’s said order.

CROSS APPEAL

This is an appeal by the 3rd respondent/cross appellant who was a Garnishee in the High Court and a respondent in the court below. I note that it did not file an appeal in the court below against the said ruling of Rhodes- Vivour J. (as he then was). I note that at page 4, No.2 paragraph 2.01, of its brief, it describes itself as “a nominal party”, (i.e. a party in name only and not in reality as defined in the Oxford Advanced Learner’s Dictionary or existing in name only as defined in Black’s Law Dictionary).

However, I have already in this judgment, reproduced the depositions of the respondent/cross appellant in paragraphs 5 to 9 in its two affidavits sworn to and relied upon by it, as reproduced in the said ruling of the learned Judge. So, I need not go into the facts in relation to the matter before Rhodes-Vivour, J, (as he then was) leading to the said ruling. Be that as it may, for what it is worth, I will still deal with it even briefly, even though, it is an appeal that has no or proper base at the court below, I have also reproduced what transpired at the trial court after the said ruling of the learned Judge who stated – “you better do so quickly”, (i,e, to pay the judgment creditor quickly), I have noted also that the 3rd respondent/cross appellant, paid over to the judgment creditor, the said sum of N773,990,80 which sum Ezekwueche, Esq. told the court on the hearing date of this appeal that the said order was set aside by the court below. Since it is settled that courts must deal with relevant issue or issues validly raised by the parties, I now proceed to deal with them except that in this court, if the determination of an issue takes care of the entire appeal, there will be no need going into other issues.

See the case of Anyaduba & anor. v. Nigeria Renowed Trading Co. Ltd. (No.2) (1992) 5 NWLR (Pt. 243) 535: (1992) 6 SCNJ 204, The 3rd respondent/cross appellant has formulated three (3) issues for determination namely,

“(i) Whether or not the learned Justices of the Court of Appeal were right in completely ignoring in their judgment the cross appellant’s brief of argument (Ground 1),

(ii) If the answer to issue (I) (sic) above is in the affirmative, whether the Court of Appeal’s failure to consider the said brief of argument did not occasion a miscarriage of justice, (Ground 2)

(iii) Whether or not the learned Justices of the Court of Appeal were correct in failing to pronounce on the fate of the garnisheed N773,990.80 paid over to the appellants pursuant to the garnishee order absolute. (Ground 3)

On its part, the appellants/cross respondents, have formulated one (1) issue for determination, it reads-

“Whether the trial court was right in asking the cross appellant to pay over to the 2nd appellant, the sum of N773,990.80 being part of N24,909,480.11k as 35% of the third payment of the sum of N71,169,943.32k paid by F.C.D.A. to the 2nd respondent in respect of the traffic light project in Abuja as duly covered in the two agreements of 30th November, 1992 and 1st December. 1992.”

For the 1st and 2nd respondents/cross respondents, they formulated two issues for determination, namely:-

“(a) Whether the lower court was right when it ignored the arguments in the cross appellant’s brief when the arguments therein were based on an issue, which was not distilled or formulated from any of the grounds in the notice of appeal

(b) Whether the failure of the lower court to consider arguments in the cross appellant’s brief on an incompetent issue did occasion a miscarriage of justice.”

I wish to ignore with respect, the one issue of the appellants/cross respondents because and this is settled, that this court does not deal with and will not consider a matter from the High Court. See the cases of Harriman v. Chief Harriman (1987) 3 NWLR (Pt.60) 244 at 257: (1987) 6 SCNJ 218; Chief Olatunde & Anor. v. Abidogun & Anor. (2001) 18 NWLR (Pt.746) 712, (2001) 12 SCNJ 225 at 234: and Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78 at 143-144; (2004) 2 SCNJ 1 at 52 just to mention but a few. The said issue is accordingly, struck out by me.

Now, on the merits of the cross appeal, I have noted that the 3rd respondent/cross appellant, did not appeal to the court below, the said ruling of the trial court. Therefore, I agree with the 1st and 2nd respondents/cross respondents in their brief, that the instant cross appeal, was initiated without proper base at the court below. It is built on an incompetent foundation. What is more, going into it, will amount to this court, embarking on an academic exercise which it is not permitted to do as it will result to an exercise in futility. See the cases of Ekperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 179 C.A.: Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 534: (1991) 9-10 SCNJ 122; and Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 330; (1999) 6 SCNJ 295 and many others.

I am obliged to commend the stance and submissions of the learned counsel for the 1st and 2nd respondents/cross respondents- Sofola, Esq. (SAN) in their brief. This is what is expected of all learned counsel who are themselves, ministers in the temple of justice. Afterwards, it is said that justice is the most honourable gift from God/Allah to man and that they are honourable who do justice.

In conclusion, my answers to issues (i) and (iii) of the 3rd respondent/cross appellant is that the court below, was right both in completely ignoring its brief of argument and in rightly in my view, making no pronouncement on the said brief. My answer therefore, to the 1st and 2nd respondents’/cross respondents’ issues (a) is in the positive or affirmative while my answer to issue (ii) of the cross appellant and issue (b) of the 1st and 2nd respondents/cross respondents is in the negative.

It need to be emphasized that this court, will not be drawn into indulging itself into an academic exercise in futility, more especially, where the cross appellant and its learned counsel have not shown and indeed, will be unable to show what miscarriage of justice that has been occasioned to the 3rd respondent/cross appellant by the said decision of the court below except of course, that it wants to continue trading with the judgment creditor’s said money due to him by the said agreements of the parties thereto and which money in any case, is not its money strictly and legally speaking. This is perhaps, why the said learned counsel, urged this court at the healing of this appeal, to make an order for his clients to keep the money and to pay it to whoever wins in this appeal. But, if I or one may ask, will it be just and equitable to make the said order, having regard to all the circumstances of this case adumbrated by me in the main appeal I think not. The cross-appeal which with respect, is time wasting and an exercise in futility, fails. It is accordingly dismissed as it is grossly misconceived. I was minded to award costs against the 3rd respondent/cross-appellant, but I hereby make no order as to costs.

SC.216/2006