Edilco Nig. Ltd. V. United Bank for Africa Plc (2000)
LawGlobal-Hub Lead Judgment Report
MANGAJI, J.C.A.
This is an appeal against the judgment of Ahinche J. (of blessed memory) sitting in the High Court of Plateau State, Jos Judicial Division wherein the claims of the appellant as plaintiff in suit No. PLD/317/91 were dismissed in their entirety and judgment entered for the defendant on his counter-claim but reducing the claim of 34% interest on the judgment debt to 21%, until the whole debt is liquidated. Dissatisfied with the decision, the plaintiff filed this appeal as can be seen from page 92 of the record of appeal in which the date of filing the notice and grounds of appeal are conspicuously not stated. On 6/11/97 however, the appellant moved a motion on notice seeking for the leave of this Court to amend and file an amended notice of appeal incorporating the proposed additional grounds of appeal, which was accordingly granted. In compliance with the leave granted therefore, the appellant on 10/11/97 filed seven grounds of appeal. Thus in all, the appellant had seven grounds of appeal as the only ground of appeal contained in the original notice and grounds of appeal was the omnibus ground which was made the first ground in the amended notice and grounds of appeal.
Let me give a resume of the facts giving rise to the case before the Court below. Sometime in the year 1985, the plaintiff applied to the defendant bank for an overdraft facility in the sum of N400,000.00 to enable it execute a contract it had with the University of Jos. The defendant approved the application and forwarded to the plaintiff a letter of offer containing the conditions to be fulfilled before the facility could be released and the terms upon which it was granted. The plaintiff accepted all the conditions including a chargeable interest of 13% on the overdraft, 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 the plaintiff perfected the conditions required of it, it applied for and was granted some amount out of the overdraft in order to purchase materials needed for the due execution of its contract including some iron pipes. The University of Jos also paid mobilization fee to the plaintiff who utilized part of it together with the money it withdrew from the overdraft facility, in purchasing the materials. The plaintiff’s contract with the University of Jos related to the infrastructural facilities on the university campus. The iron pipes purchased by the plaintiff were to be utilized in the construction of the sewage main line on the university campus. But as economic circumstances would have it, things became so difficult that the university decided to suspend the contract on the sewage main line for which purpose, the iron pipes were earlier on purchased. This was one of the austerity measures employed by the University. In the meantime, the plaintiff’s overdraft facility became due for repayment and the plaintiff could not offset it. The plaintiff and the university along with the defendant therefore agreed after some 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 defendant bank.
Disagreement visibly set in on the mode of sharing the money – the proceeds of the sale of the pipes. The defendant wanted the share of the plaintiff paid into its account from which it could off-set the overdraft it granted. The defendant said as a result of series of meetings, it was agreed between it, the plaintiff and the university that the latter and the plaintiff would share the proceeds of the sale of the pipes in the ratio of 55% and 45% respectively. (This, the Court below found as a fact). As a result, the defendant, after the receipt of the proceeds of the sale of the pipes forwarded to the University its 55% and credited the balance into the plaintiff’s account from which it applied in recovering, its overdraft and the interest that accrued thereto. The stand of the plaintiff on the other hand is that, it never agreed on any sharing formula and that the whole proceeds was to be paid into its account.
At the end of it all, the plaintiff claimed that the proceeds of the sale of the iron pipes which amounted to N780,813.57 which it presumed had been credited to its own account had effectively settled the defendant’s indebtedness to it leaving a credit balance of N240,611.74 in its favour after the deduction of the money it owed the defendant on the overdraft. The defendant on its part contended that, the plaintiff’s share being 45% of the proceeds of the sale of the pipes had been credited to its account and used in reducing the overdraft loan the plaintiff had such that, the balance of the overdraft due and unpaid continued to attract interest, which as at the date the statement of defence incorporating a counter claim was filed the plaintiff’s indebtedness to the defendant stood at N1,418,076.10. Because of the sharp differences parties have, the plaintiff on 12/7/91 took out a writ of summons against the defendant claiming the following reliefs as can be found in the concluding paragraph of its statement of claim thus:-
(a) 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.
(b) The plaintiff also claims the sum of N150,000.00 being damages for conversion of the plaintiff’s aforesaid amount being money had and received but the defendant converted same to its personal use.
(c) That the plaintiff also claims the sum of N455,000.00 being damages for defamation as the defendant has instructed the sale of the entire properties mortgaged by the plaintiff.
(d) Perpetual injunction restraining the defendant, his servants, agents or privies from selling the following properties.
- Yakubu Gowon Way Anglo Jos Plateau State.
- No. 1 Madaki Street Bukuru, Plateau State
- No. B1.569 Bisichi Jantar Sabon Gidan Danyaya Barkin Ladi Local Government Area.
The defendant on its part counter-claimed. The concluding paragraph of the counter-claim reads as follows:-
Whereupon the defendant claims against the plaintiff as follows:-
(a) N1,418,076.10dr being loan and interest
(b) Interest at bank rate of 34% from 1/10/93 until judgment and thereafter at 34% until full payment.
(see page 32 of the record of appeal)
It was after full trial that the learned trial Judge dismissed the plaintiff’s claims and entered judgment for the defendant on its counter-claim but granting 21% post judgment interest until the whole of the judgment debt was fully and totally liquidated. I shall from now onwards, refer to the plaintiff as the appellant while the defendant shall be referred to as the respondent. Parties filed and exchanged briefs of argument which saw the appellant file a reply brief. The appellant moved this Court for leave to file appellant’s brief out of time and to deem the brief so exhibited as properly filed and served. This court granted appellant’s application for which reason the brief he filed on 9/3/98, the day the application was moved, became a legally filed brief in reaction to which the Respondent filed his brief of argument on 22/6/98. As I indicated earlier on, the appellant filed a reply brief on 8th July, 1998.
From his brief of argument the appellant identified five issues as arising for determination from the grounds of appeal. On its part, the respondent identified three issues. The five issues identified by the appellant are the following:
Whether on the evidence before the trial Court there was a binding agreement between the appellant, the respondent, and the University of Jos as to the sharing of the money lodged by the appellant into its account with the respondent bank and as to the manner the respondent bank was to apply the money upon lodgment?.
Whether having regard to the answer to (i) above, the law and the entire circumstances of the case, the respondent was right to have disbursed the sums of money lodged by the appellant into its account between itself (respondent) and the University of Jos without further assurance or authority from the appellant?.
Whether the learned trial Judge was right in awarding interest at the rate of 34% on the sum claimed by respondent from 1/10/93 to the date of his judgment?
Whether the learned trial Judge had jurisdiction to award 21% interest on the judgment debt until same is liquidated?.
Whether having regards to the facts and circumstances of this case and the law, the trial Court was right in entering judgment for the respondent on the counter-claim and dismissing the plaintiff’s claim?.
On its part, the respondent identified three issues for determination as follows:
Whether there is a binding agreement between the parties to share the proceeds from the sale of iron pipes in the ratio of 55% to the University of Jos and 45% to the appellant?, and if the answer is in the affirmative, whether the respondent was justified in applying the appellant’s share of 45% in reducing the amount outstanding in the loan overdraft granted to the appellant by the respondent?.
Whether the award of 34% and 21% interest to the respondent by the trial Court is valid and sustainable in law?.
Whether the appellant is indebted to the respondent and if the answer is in the affirmative, whether the respondent is entitled to judgment on its counter-claim to the tune of N1,418,076.10?”.
The first issue identified in both briefs of argument are same. However, it is better couched in the respondent’s brief. The 3rd and 4th issues identified by the appellant can conveniently be discussed in the 2nd issue identified by the respondent. Also issue 3 in the respondent’s brief and issue 5 in the appellant’s brief are similar. I prefer the issue identified by the respondent for the simple reason that it is broader in con and obviously covers the question posed by the appellant. Consequently, I shall adopt the issues identified by the respondent in the consideration of this appeal. In considering the first issue however, I intend to cover the second issue identified by the appellant as well because they are so inter-related and inter connected that the consideration of one must necessarily call for the determination of the other.
Both counsel adopted their respective briefs of argument but proferred no oral submissions in amplification of their respective cases save that learned counsel for the appellant referred us to the case of Att. Gen. of Abia State & 7 others v. Agharanya & 3 Ors. (1999) 6 NWLR (Pt.607) 362 at 371 on the weight the Court below gave to exhibits 16, 16A, 17 and 17A as an additional authority. On the 1st issue for determination, Mr. Ugwuala of counsel for the appellant submitted that there was no binding agreement between the appellant, respondent and the University of Jos as to the sharing of the money lodged into the appellant’s account with the respondent and indeed on the manner the respondent was to apply same upon lodgment. He stressed that PW1 disputed the existence of any sharing formula of 55:45 in the favour of the University of Jos and appellant respectively. Learned counsel said the respondent was not a party to Exhibits 16 and 16A since its representative was excused and therefore walked out of the meeting and that in any case, no sharing formula was proposed during the meeting.
Learned counsel further submitted that Exhibits 16, 16A, 17 and 17A are all unsigned documents which in law have no evidential value. That subsequent certification of the documents will not in the circumstance take the place of signature or the proper execution of them so as to validate them. He referred to Ojibah v. Ojibah (1991) 5 NWLR (Pt.191) 296 (1991) 6 SCNJ 156 at 164 in support. He said apart from the above, the respondent was not a party to the meeting recorded in Exhibits 17 and 17A. While referring to Exhibit 18, learned counsel submitted that neither appellant nor respondent was a party to the exhibit in which event it could not be a binding agreement to either of them. He referred to the definition of an agreement contained in the Black’s Law Dictionary, 5th Edition and contended that exhibit 18 being minutes of internal meeting of University of Jos cannot suffice as an agreement having the effect of binding the parties herein.
Continuing, learned counsel submitted that the respondent was in breach of its duties as bankers to the appellant when it disbursed the sums of money realized from the sale of the iron pipes without assurance or authority from the appellant. He said, the appellant neither drew cheques in the favour of the University of Jos nor gave authority in any other manner to the respondent regarding the proceeds of the sale of the iron pipes. He stressed that even from Exhibit 18, it was clear that the respondent had to obtain a letter of authority from the appellant mandating the respondent to act on its behalf which learned counsel said, was never given. He urged us to allow the appeal on the above premises.
On his part, Ofodile Okafor, (SAN) of Counsel for the respondent started by proferring the definition of the words, ‘Agreement’ as contained in the Black’s Law Dictionary 6th Edition and reasoned that, agreement is a broader term than ‘contract’. He related the definition to the case at hand and submitted that the modalities for the distribution of the proceeds of sale of the iron pipes can be inferred from the tenor of Exhibits 16, 16A, 17, 17A, 18, 19, 20 and 21. He noted that:
Exhibit 16A heralded the series of meetings convened to work out modalities for the sale of the iron pipes and as can be seen in the exhibits. He submitted that in Exhibit 17A, the formula for the sharing of the proceeds of the sale of the iron pipes had been agreed upon and as well that, the respondent was to distribute the proceeds. He further submitted that Exhibit 18 indicated a new sharing formula as a result of the rejection of the earlier formula for the sharing by the respondent thus, raising the share of the appellant to 45% from 32.5%. Learned senior counsel therefore submitted that from Exhibits 9, 19, 20 and 21, the appellant impliedly ratified the agreement contained in Exhibit 19. Learned senior counsel referred to some paragraphs in Exhibits 11, 19 and 20 and submitted that reference to previous meetings alluded to by the Appellant could not be any meetings other than those contained in the minutes reflected in Exhibits 16A, 17A and 18 as there was no meeting between the parties and the University of Jos prior or subsequent to those meetings relating to the proceeds of the sale of the iron pipes.
As to the issue of signing of the minutes in Exhibits 16A and 18A, learned senior counsel is of the firm view that there was really no need for all parties to append their signatures on them because they were simply formal meetings. He referred to sections 94 and 97(2)(c) of the Evidence Act and said that, a production of the document or its certified true copy would suffice to evidence transaction relating to a corporate body such as the University of Jos.
Learned senior counsel dwelt so extensively on whether a document which has been admitted without objection can attract an objection on its admission by the lower court on appeal. Learned counsel for the appellant in his reply brief pointed out that, what he complained of and which he eventually argued in his brief was not on the admission of Exhibits 16, 16A, 17 and 17A but on the weight the learned trial Judge gave to them. I think, I should dispose of this controversy straight ahead. Learned counsel for the respondent is right that his complaint was not on the admission of the exhibits but on the weight given to them by the learned trial Judge. One can see clearly from the appellant’s brief of argument that the complaint of the appellant regarding these documents centred around their evidential value. He complained so bitterly that the learned trial Judge ought not to have accorded Exhibits 16,16A, 17 and 17A any weight at all giving the background that they were not only unsigned but were documents whose certification will in no way enhance their status of being worthless in law. For the foregoing reasons therefore, I feel it in-expedient to recapitulate the argument of the learned Senior Advocate on the line he towed in arguing this question.
Continuing in argument, the learned Senior Advocate defined the word, ‘Ratification’, as contained in the 6th Edition of the Black’s Law Dictionary and submitted that,when the respondent struck a deal in increasing the appellant’s share of the proceeds of the sale of the iron pipes as contained in Exhibit 18, it was doing so as an agent of the appellant. That the subsequent acceptance of it as manifested in Exhibits 19 and 20 only showed clearly that the respondent ratified it. He said the request of the University to have a letter from the appellant mandating the respondent to act on its behalf was merely a desire of the University to protect its interest and therefore had no effect on the contents of Exhibits 18. He stressed that, the subsequent conduct of the appellant rendered the required step unnecessary.
On the vexed issue, that the whole of the proceeds of the sale of the iron pipes was agreed to be paid into the appellant’s account with the respondent, learned senior counsel argued that the proceeds were credited into the suspense account of the bank from where the share of the appellant was taken and credited to its account. He said, the respondent did not disburse the funds from the appellant’s account directly as contended by the appellant. He urged us to answer this issue in the affirmative.
In the reply brief, learned counsel contended that the appellant’s stand on Exhibit 18 is that, it is only an internal matter of the University which is not capable of ratification by the appellant as an agreement.
On Exhibit 19, learned counsel stressed that it could not be termed ‘ratification’ of the agreement reached in Exhibit 18 because, it only related to the lodgment of the sum of N182,812.50 being proceeds from the sale of some of the iron pipes. That since it did not affect the entire lodgment of N780,813.57, it would not pass the test of ratification of the agreement in Exhibit 18 since an agreement cannot be ratified in part or repudiated in part. He referred to Union Bank of Australia v. McClintock (1922) 1 AC 240 PC. He said, the above argument also holds true in relation to Exhibits 9 and 20.
Continuing, learned counsel submitted that the respondent was not correct when it contended that it was acting as an agent of the appellant when it negotiated the terms in Exhibit 18 given the reality that the parties to this appeal and the University of Jos were each acting to protect its interest for which neither party would have been capable of acting as an agent of any other party. The nitty-gritty of this issue is whether there is a binding agreement to share the proceeds from the sale of the iron pipes between the appellant and the University of Jos in the ratio of 45%/55% respectively and whether the respondent was right to have disbursed the proceeds as he did without authority from the appellant to do so. I should perhaps examine the status of Exhibits 16 & 17. The two exhibits are uncertified photocopies of minutes of meeting between officials of the appellants, respondent and the University of Jos; and the officials of the Appellant, University of Jos and consultants respectively. The two exhibits are not certified and being photocopies of the primary evidence they represent, they obviously have no probative value at all. Being secondary documents in respect of which nothing has been said about their original copies, their admission in evidence without objection alone will not clothe them with any weight as to make their contents relevant. Happily, even the Court below did not rely on them in arriving at the judgment as it did since realising the worthless nature of the documents, the appellant had certified true copies of them tendered and admitted as Exhibits 16A and 17A respectively.
Exhibit 16A though a certified true copy of its original, it nevertheless is a document that has not been signed by either the chairman of the meeting or its secretary. I should think that, learned counsel for the appellant is correct that the mere fact that the document has been certified does not confer it with any evidential value. I am of the firm view that the law is trite that the validity of a certified true copy of an original document does not lie solely on the fact of its certification but as well on the appearance of the signature of the person who is said to be its author or as the case may be the officer who made it for and on behalf of the person whom he represents in the case of a corporate body. Clearly, Exhibit 16A though a certified document, nevertheless contains no signature of either Prof. Adekunle (who chaired the meeting) or I. I. Modobbo (who was the Secretary during the meeting) Evidently therefore, and barring what I shall say later in this judgment relating to the exhibit, the learned trial Judge was obviously in error when he ascribed some weight to Exhibit 16A.
Exhibit 17A is the minutes of the meeting attended inter alia, by the appellant and the University of Jos as a follow up of the meeting reflected in Exhibit 16A. In it, the modalities for the disposal of the iron pipes and the anticipated cost of the pipes were discussed. As well, the meeting deliberated on the method of sharing the proceeds of the sale of the iron pipes and arrived at an agreed formula of 67.5% and 32.5% for the University and the Appellant respectively. The minutes, unlike those contained in Exhibit 16A had been signed by an Andrzejak as the Chairman of the meeting. Although the secretary of the meeting did not sign, nevertheless the chairman did sign the document. I am of the strong view that the signature of the chairman is sufficient to render it complete as a legal document. In the event, the court below was justified in according some weight to the document, looking at it from another angle, it is not the contention of the appellant that it never attended the meeting or that the meeting was never convened at all. Its contention is that the minutes were not signed at all, and therefore would carry no weight. I must recall that contrary to what the appellant contended, the minutes were indeed signed by the Chairman as clearly reflected at the last page of Exhibit 17A.
In Exhibit 17A, the appellant is to get 32.5% out of the proceeds of the sale of the iron pipes. Exhibit 18 is the minutes of the meeting convened by the University of Jos as a result of the rejection of the sharing formula arrived at in Exhibit 17A by the respondent in which the University and the appellant are to receive 67.5% and 32.5% respectively. The stand of the respondent was that, the share of the appellant will not off-set the overdraft and the interest that accrued thereto which the appellant obtained from it. That at any rate, the University stands to lose nothing if the share of the appellant is raised upwards as the cost of the iron pipes had risen by far higher than what they cost when they were purchased. At the end of deliberations, the University conceded and reduced the percentage it had, thus arriving at a new formula of 55% to the University and 45% to the appellant. To the above, the respondent said it acted as an agent of the appellant. The latter disputed that assertion.
I should think that the surest answer to the disagreement in the stand of the parties lies not so much in whether the appellant ratified the act of the respondent in striking a deal in its favour as its agent but in whether the appellant had suffered any disadvantage by the new formula. I can see no disadvantage at all. If anything the formula ensured for the appellant tremendous financial advantage by raising its share by 12.50%. Therefore, the use to which the learned trial Judge put Exhibit 18 has occasioned no miscarriage of justice to the appellant.
The appellant was undoubtedly not a party to Exhibit 17A. But the question is, did it ratify the contents of the exhibit?. Or put differently, can Exhibit 17A and a fortiorari Exhibit 18 bind the appellant?. As a result of the need to sell the unused iron pipes and to find acceptable formula such that the University of Jos and the Appellant would recover what is due to them, series of meetings were held. The respondent too was desirous of recovering the overdraft it granted the appellant together with its attendant generated interest, barring exercising its powers under the mortgage deeds executed between it and the appellant. From Exhibit 17A, the appellant agreed that its share of the proceeds of the iron pipes should be deposited in the respondent bank and the Court below found so. In the second paragraph of Exhibit 17A the last paragraph therein, the minutes are reflected thus:-
At this juncture Edilco (the appellant) expressed the desire to have her share paid directly to the bank…
The share alluded to above is its 32.5% as agreed between the appellant and the University. It appears therefore clear that it is in consequence of the above sharing formula that the appellant wrote Exhibits 19, 20 and 21 to the respondent (Note that Exhibit 21 is same with Exhibit 11). In Exhibit 19, the appellant directed the respondent as follows:-
The above payment is to go into Edilco account and out of this, thirty five thousand naira (N35,000) should be deducted for the commission and other commitments as agreed with the former Manager. Therefore, we are applying as agreed to the Branch Manager to give us N35,000 out of N182,812.50. The balance of N147,812.50 should be paid to Edilco account and the University as per agreement.
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. The paragraph reads thus:-
We also wish to draw your attention during our previous meetings, with University authority and the former Bank Manager, that Edilco Nig. Ltd. will be given some percentage for the transportation, 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 realised 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 inter alia the following clarification as contained in paragraph 2 of Exhibit 21:-
That out of the aforesaid amount, the sum of N40,000.00 was paid to the company to enable it settle salaries of watchmen who took care of the pipes; that the balance of N745,000.00 was lodged in favour of Edilco and Jos University.
That since the aforesaid lodgment about 2 years ago, we have not been made aware of the amount paid to Edilco account and also the University.
From the above, five things stand clear and they are:
“(a) That the proceeds of the sale of the iron pipes were to be shared between the Appellant and the University of Jos;
(b) that there had been an agreed sharing formula between the appellant and the University of Jos;
(c) the formula for sharing the proceeds was to be applied by the respondent since the money would be collected by it for distribution;
(d) that the respondent was to credit the appellant’s account and to also pay the University.
(e) that there had been previous meetings about the sharing of the proceeds and settling handling charges by the appellant which should be paid from the proceeds”.
Having regard to Exhibits 19, 20 and 21 therefore, the conclusion of the learned trial Judge that there was a sharing formula agreed upon between the appellant and the University of Jos cannot be faulted. If indeed as disclosed in Exhibit 17A, the 32.5% share of the proceeds of the sale of the iron pipes which accrued to the appellant was to be paid directly into the respondent bank and that was done, one wonders why the hue and cry about it. Obviously, from the evidence before the court below, there is no running away from the conclusion of the court that the proceeds were to be shared between the University and the appellant in the agreed ratio of 67.6% and 32.5% respectively, and it was the respondent who was vested with the responsibility of effecting the sharing. If it was not the respondent who was to share it then why should the appellant ask how much ‘amount’ was, paid to Edilco’s account and also the University?. It stands to reason that, if the whole of the proceeds were to be paid directly into the appellant’s account then there would have been nothing to share as expressly indicated in Exhibits 17A, 19 and 21.
The appellant in Exhibits 19 and 20 referred to previous meetings it held with the University of Jos and the respondent. I have so meticulously gone through the entire evidence before the Court below but am unable to find many previous meetings on record except those contained in Exhibits 16A, 17A and 18. The meeting as reflected in Exhibit 16A heralded negotiations resulting in the sharing of the proceeds of the sale of the iron pipes between the appellant and the University of Jos in the ratio of 45% and 55% respectively. 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 appellant 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. As I said earlier on, Exhibit 18 gave the appellant more share than it otherwise would have had if the formula in Exhibit 17A was strictly followed. Although strictly speaking, the respondent could not have been acting as an agent of the appellant it nevertheless got more favourable terms to the advantage of the appellant. It was by no means prejudicial to the appellant. Therefore, the contention of the learned senior counsel for the respondent that the latter acted as agent for the appellant in entering into the agreement contained in Exhibit 18 cannot be correct. But it can be justified on the ground that the appellant gained tremendously financial wise from the agreement which worked no injustice at all on the appellant. There was in the circumstance no miscarriage of justice and if Exhibits 19, 20 and 21 were referring to the formula for the sharing worked out in Exhibit 17A, the appellant infact got a fairer bargain by the application of Exhibit 18. The only evidence on record is that the total sum of N780,823.57 was credited into the respondent’s suspense account before it was eventually shared between the appellant and the University of Jos. Appellant contended that the amount was lodged into its account from where the respondent unlawfully withdrew the University’s share. There is nothing on record to show any such lodgment into the appellant’s account. The evidence of DW1 that the money was infact lodged into the respondent’s suspense account from where it was shared stood uncontroverted and uncontradicted. The finding of the learned trial Judge that the respondent shared the proceeds in the agreed ratio therefore, should be seen in the light of such sharing from the suspense account and not out of the appellant’s account as submitted by learned counsel for the appellant and as found by the learned trial Judge.
Learned counsel for appellant made heavy weather about the letter of authority the University said its legal officer should obtain from the appellant to certify that the respondent was acting on behalf of the appellant in matters of the sharing of the proceeds. That paragraph of Exhibit 18 reads thus:-
“The legal officer was directed to take up with the contractor, Messrs Edilco (Nigeria) Limited, the issue of the letter of authority to the bank to certify that the bank was acting on behalf of the company.
This would ensure that the University was legally covered to deal directly with the bank on behalf of Messrs Edilco (Nigeria) Limited”. With due respect to learned Counsel, the requirement of the letter of authority was between the appellant and the University only. It has nothing to do with the respondent who needed no letter of authority from anyone. It would have been a different matter altogether if the University were a party and the question of letter of authority directed to it. As for the respondent, in the face of Exhibits 19, 20 and 21, it has no reason to believe that the appellant did not mandate it to deal with the sharing of the proceeds on its behalf or that it had to exhibit any authority to either the appellant or the University before any sharing was done.
Appellant is of the view that Exhibits 19 and 20 being reference to only two instalmental payments out of the total proceeds of N780,823.57, they cannot be authority for the sharing of the whole amount. Given the background of the sales conducted and the evidence on record, the appellant cannot be correct. It should be realised that the iron pipes were sold to four different persons and on different dates. Sharing was done upon the receipt of the amounts from the appellant who used to collect the proceeds. The sharing was not done after all the proceeds were received and that accounted for Exhibits 22, 23, 28 and 29 being payments of the University’s share. Indeed, in Exhibit 19 the appellant said unequivocally thus:-
“…The balance of N147,812.50 should be paid to Edilco (sic) account and the University as per agreement”.
From above, there cannot be any tinkering about the whole of the proceeds being added up before sharing was effected. It seems clear therefore that the sharing formula in which the appellant and the respondent received 45% and 55% respectively of the proceeds from the sale of the iron pipes was agreed upon by the parties and the respondent was right when it disbursed the money realised in accordance with the formula. At any rate, there is no disagreement whatsoever about the application of the appellants’ share in reducing the amount outstanding from the overdraft the respondent granted appellant. The disagreement only related to whether the whole of the proceeds of the sale of the iron pipes should have been credited in to the appellant’s account. Issue No.1 in the respondent’s brief (which is similar to issue No.1 in the appellant’s brief) and issue ii in the appellant’s brief are answered in the affirmative.
On the 2nd issue for determination as framed by learned Counsel for the respondent it was submitted by learned counsel for the appellant that the learned trial Judge was wrong in awarding 34% interest on the sum claimed by the respondent in its counter claim. Learned counsel stressed that in the letter of offer of the overdraft contained in Exhibit 13, the interest rate proposed is 13%. That by Exhibit 14, the appellant agreed and accepted the overdraft on the basis of the 13% interest rate and on the terms proposed without any variation. He contended that by Exhibits 13 and 14 a binding contract had existed between the parties. He relied on Bioku Investment and Proper Co. Ltd. v. Light Machine Industry Nig. Ltd. & An. (1986) 5 NWLR (Pt.39) 42 and Council of Yabatech v. Nigerlec Contractors Ltd. (1989) 1 NWLR (pt. 95) 99 at 107.
Further in submissions, learned counsel said that the agreement evidenced by Exhibits 13 and 14 being commercial in nature, both appellant and respondent are presumed to intend the exhibits to create legal relations between them. He cited in support the case of Sapara v. University College Hospital Management Board (1988) 4 NWLR (Pt. 86) 58 at 72. He reasoned that the Respondent cannot seek for better terms outside Exhibits 13 and 14. He referred to Calabar Cement Co. Ltd. v. Daniel (1991) 4 NWLR (Pt.188) 750 at 760. He submitted that the respondent cannot unilaterally increase the rate of interest of 13% agreed upon. He cited in support the case of O.A.U. v. Onabanjo (1991) 5 NWLR (Pt.193) 549. He stressed that even in the face of Exhibits 30 and 31, the situation cannot be any different since Exhibit 30 was only upstamped and that the document was only a fulfillment of conditions 4(a) and (b) stipulated in Exhibit 13. That as well Exhibit 31 was simply executed in fulfillment of condition 4(c) of Exhibit 13. He submitted that Exhibits 30 and 31 were not meant to introduce a new contract or new terms and conditions into the existing contract contained in Exhibits 13 and 14.
On the interest rate of 21% on the judgment debt awarded by the learned trial Judge, learned counsel submitted that it is untenable. He reasoned that the award of interest on judgment debt is not as of right either under contract or mercantile custom or principles of equity. He submitted that upon entering judgment in the sum of N1,418,076.10 and the accrued interest it becomes a judgment debt as a result of which Order 40 rule 7 of the Plateau State High Court (Civil Procedure) rules, 1987 comes to aid.
Further, learned counsel submitted that the learned trial Judge had no power under Order 40 rule 7 aforesaid to order interest on the judgment debt when he did not direct the time when the judgment debt was to be paid. He was of the firm view that the court below had no jurisdiction to award the interest of 21% as it did on the judgment debt far in excess of the statutory 10% provided for under Order 40 rule 7. He relied on a number of decided cases to back up his submission. He said the award made by the learned trial Judge was in the circumstance, a nullity. He urged us to allow the appeal on the above premises.
While being heard in submissions, learned senior counsel for the respondent stressed that even though the appellant filed a defence to the counter-claim, he nevertheless led no evidence against the counter claim. He therefore submitted that the respondent shall be deemed to have abandoned the defence. While referring to the principles on award of interest, learned senior counsel said it is awarded is claimed under two distinct circumstances namely where interest as of right and where there is power conferred by statute on the court to exercise its discretion in awarding interest. He pointed out that in the instant appeal, the claim of interest was not disputed by the appellant either in its defence to the counter claim or evidence in court. Learned senior counsel referred to Exhibits 13, 14, 30 and 31 and submitted that the interest rate specified therein was never below 13% but was as high as 34%. He pointed out that by Exhibits 30 and 31, the appellant agreed to pay interest as adjusted by the respondent from time to time.
Continuing, learned senior counsel said the interest claimed by the respondent was as of right pursuant to the overdraft agreement executed between the respondent and the appellant and as contained in Exhibits 13,30 and 31. He submitted that the appellant was bound by the terms and conditions contained in the deeds of legal mortgage it freely executed. He referred to Allied Bank v. Akubeze (1997) 6 NWLR (pt.509) 374 at 403-404 and Ezeugo v. Ohaneyere (1978) 6-7 SC 171. Learned senior counsel was emphatic, that the interest rate to be applied was to be determined by the respondent and only subject to section 15 of the Banking Act 1990 which empowers the Central Bank of Nigeria to fix the limits of prime lending rates and that all Commercial Banks would be bound by it. He quoted in support Koiki v. 1st Bank Plc. (1994) 8 NWLR (pt.365) 665 at 671 and UBA v. Sax Nig Ltd. (1994) 8 NWLR (pt.361) 150 at 163-164.
Still in argument, learned senior counsel submitted that even where there is no express agreement, a bank is entitled to charge compound interest on the basis of custom and implied consent of the customer. He relied on Barclays Bank of Nig. v. Alh. Diweda Abubakar (1977) 10 SC 13at 23 and 25. He therefore contended that the award of 34% interest on the principal sum was right having regard to the counter claim and the evidence led in proof of it.
On the 21% interest on the judgment debt, learned senior counsel submitted that it was rightly done since Clause 1 of Exhibits 30 and 31 did authorize the Respondent to continue to determine interest rate payable on the loan well after any judgment. He is of the view that Order 40 rule 7 of the Plateau State High Court (Civil Procedure) Rule 1987 is in applicable since it is not the discretion of the court below that was prayed for. Learned senior counsel finally submitted that the non fixing of date for payment of the judgment sum did not vitiate the interest awarded thereon. He urged us to answer the issue in the affirmative.
In his reply brief, learned counsel for the respondent submitted that the respondent was wrong in relying on Exhibits 30 and 31 to justify awarding 34% pre-judgment interest. He stressed that Exhibit 30 was executed on 31/11/83 in respect of a different transaction and that it was merely upstamped as security for the present transaction.
As for Exhibit 31, learned counsel submitted that its execution on 10/12/85 was merely a subsequent fulfillment of one of the terms of the agreement reached on 1/8/85. He said where there is an existing contract between parties and a new document which gives effect to the existing agreement/contract comes into life, the contractual rights of the parties will be determined in accordance with the existing contract. He relied on Sapara v. University College Management Board cited (supra). He submitted that the wide power given to the respondent in Exhibit 31 to fix interest rates as against the original agreement of 13% in Exhibit 13 can only be effective to vary Exhibit 13 if it conveys a new benefit in the favour of the appellant. He said UBN v. Ozigi and UBN v. Sax (Nig.) both cited (supra) are distinguishable from the case at hand since in those two cases, the basis for the computation of the interest rates were the two deeds of legal mortgage in contention and had no agreement the like of Exhibits 13 and 14.
On post judgment interest, learned counsel submitted that it cannot be a matter of contract but rests squarely at the discretion of the Court. He referred to Ekwunife v. Wayne (WA.) Ltd. (1989) 12 SCNJ 99 at 113 (1989) 5 NWLR (Pt.122) 422. Learned counsel urged us to allow the appeal.
Undoubtedly, the appellant had filed a reply to the counter-claim as can be seen at pages 33 to 34 of the record of appeal. However, PW1 who gave evidence for the appellant in the Court below led no evidence regarding the reply to the counter-claim. Indeed, he did not advert his mind nor was his attention called to the reply. The result is that no evidence was led at all relating to the counter-claim.
The law is that, where a party fails to or does not lead evidence in support of the averments in his pleading, the averments will be taken as having been abandoned. See Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt. 138) 270; Awojugbagbe Light Ind. Ltd. v. Chinukwe (1995) 4 NWLR (Pt.340) 380 at 427; Enegokwue v. Okadigbo (1973) 4 SC 113 at 117 -118; Egbunike v. A.C.B. Ltd.(1995) 2 NWLR (Pt. 375) 34 at 55. The reply to the counter claim having no evidence led in proof of it is deemed abandoned.
Exhibit 13 is the letter of offer subscribed to by the appellant who conveyed its acceptance of the conditions proposed by the respondent before overdraft of N400,000.00 would be granted. The acceptance of the offer is contained in Exhibit 14. Exhibit 13 clearly spelt out five conditions required before the facility is granted.
These conditions are as follows:-
- Loan/overdraft O/D N400,000.00
2 Interest will be charged at the rate of 13%
- Repayable …
- L.M. over property covered by C. of O. No. 218 valued at N140,000 stamped for N100,000 to be upstamped for N140,000.
L.M. over property covered by C. of O. 14068 stamped for N150,000.00
L.M. over property of Bisichi Jentar B/Ladi Local Government valued at N122,000 to be stamped for N130,000 (to be obtained).
- All legal charges incurred by the bank in the course of perfecting the securities related to the above mentioned lendings will be borne by the customer and debited into your current account without prior recourse.
Although the repayment period is not mentioned, parties have no dispute about it and is therefore non-contentious. Conditions 4(a) and (b) require the upstamping of the legal mortgage over the property covered by the Certificate of Occupancy No.14068 which was executed on 3/11/83 to cover N400,000.00 being the amount of the overdraft granted the appellant. The other condition required the appellant to execute a deed of legal mortgage over the property at Bisichi Jantar in Barkin Ladi Local Government which said property is Plot No. 569 and to stamp same property for the value of N130,000.00. The appellant compiled with both conditions.
I should stress the point that the transaction in issue being a contract, there is always an offer made by one party and an acceptance by the other. A contract comes into existence when consideration is provided on the offer and the acceptance of it. See Bioku Investment and Property Co. Ltd. & Anor. v. Light Machine Industry Ltd. (1986) 5 NWLR (pt.39) 534. With the above, a definite agreement exists with very certain terms that are final in concept. The offer made by the respondent herein was certainly an expression of willingness to enter into a contract based on the terms contained in Exhibit 13 and it became binding on the appellant after it signified its acceptance of the terms as contained in Exhibit 15. One can safely say that the conditions contained in Exhibit 13 are but an integral part of the legal relationship created in the contract which became binding on the parties: Sapara v. University College Hospital Management Board (1988) 4 NWLR (pt. 86) 58 at 72. In Exhibit 13, the offer made for the advance of the overdraft is on condition that the interest chargeable on it shall be computed at 13% bank rate. Exhibit 30, just like Exhibit 31 has as its first clause, a condition requiring the respondent to vary the rate of interest from time to time on the money secured as overdraft or the balance of it in the appellant’s account either before or after any judgment is obtained in respect of the balance due and unpaid of the overdraft.
That clause reads thus:-
“The borrower hereby covenants with the bank to pay to the bank on demand the sums secured by this Deed of Mortgage and also as well after any judgment to pay interest on the balance of the said current account and or any other account and on all monies whatsoever at any time owing to the bank at the rate of interest per annum from time to time stipulated by the bank and payable monthly or at such other rates and at such other times as the bank may from time to time determine Provided Always that if the interest or any interest payable on any arrears of interest capitalized under this present proviso shall remain unpaid for two weeks after the day on which the same ought to have been paid then and in every such case the interest so in arrear shall as from the day on which the same ought to have been paid be added for all purposes to the balance of moneys hereby secured (unless the bank shall otherwise by writing expressly elect) and shall thenceforth bear interest payable at the rate and on the days aforesaid and all the covenants and provisos contained in these presents and rules of law or equity in relation to interest on the said balance shall equally apply to interest on such arrears”.
The appellant did agree to this term. However, Exhibit 30 was only upstamped to cover the N400,000.00 secured and the property so upstamped was earlier on 3/11/83 used as security to secure another loan/overdraft. That deed of legal mortgage was duly executed on 3/11/83 and only upstamped on 22/1/88 in fulfillment of condition 4(a) and (b) contained in Exhibit 13. Can it therefore be really contended that by upstamping Exhibit 30, the appellant is presumed to have bound itself with the term contained in clause 1, therein bearing in mind that that clause was made applicable in 1983 in respect of a different contract entered into between the appellant and the respondent? It seems to me clear that to apply the rate of interest determined by the respondent in reliance on Clause 1 of Exhibit 30 is to simply recall as clause in retrospect and apply it as binding between the parties. The contract between the appellant and the respondent only came into effect on 1/8/85. To bring in a term agreed upon on 3/11/83 and make it applicable to the contract at hand therefore is a complete novation since what was required to be done in respect of Exhibit 30 was to have it upstamped to cover the sum of N400,000.00 which was accordingly done. It is my view therefore that the first clause of Exhibit 30 cannot by any shred of imagination be made applicable to the present contract since the appellant in signing the deed of legal mortgage on 3/11/83 did not contemplate that the terms therein contained would he made applicable to any contract that was never contemplated by the parties. In any event, both parties did not upon signing Exhibit 13, recall Exhibit 30 for further fresh execution with the view of incorporating the clause therein contained as part of the conditions for the granting of the overdraft. My conclusion is that clause 1 of Exhibit 30 is inapplicable as an integral part of Exhibit 13 to justify the respondent’s claim for 34% interest on the overdraft it granted the appellant.
Be that as it may, Exhibit 31 was also executed by the appellant as a condition that must be fulfilled in order that the contract contained in Exhibit 13 becomes binding on the parties. Exhibit 31 is a deed of legal mortgage executed by the appellant on 10/12/85 and it contains the same clause as clause 1 of Exhibit 30 in its corresponding clause 1. Clause 1 as I earlier on said, allows the respondent to determine the applicable interest rate on the overdraft inspite of the interest rate of 13% stipulated in Exhibit 13. The respondent herein claimed an interest rate of 34% in its counter-claim. The claim of the respondent is therefore one of the two claims a party to a contract could make, the other being a claim for interest based on statute and conferred on the court to exercise at its discretion. See Ekwunife v. Wayne (W.A) Ltd. (1989) 5 NWLR (Pt.122) 422 at 445,452 and 455. A claim of interest which ante dates judgment being a claim as of right as pleaded by the respondent can be awarded where it is proved. See Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (pt.420) 478 at 500; Himma Merchant Ltd. v. Aliyu (1994) 5 NWLR (Pt. 347) 667 at 676-77.
Exhibit 31 was, with respect to learned counsel for the appellant an integral part of Exhibit 13. It cannot be a new document introduced by the respondent in support of and giving effect to the rights created under the contract entered into and contained in Exhibit 13 as contended by learned counsel for the appellant. It is by no means such a document contemplated by the Supreme Court at P.306 in Sapara v. University College Hospital Management Board referred to (supra).
Exhibit 31 was executed as part and parcel of Exhibit 13 and must be read conjunctively. The appellant when executing Exhibit 31 knew or read clause 1 thereof. In it, the 13% interest rate fixed and chargeable on the overdraft contained in Exhibit 13 is made subject to variation from time to time as the respondent would determine Exhibit 31 is not a new document. It is a document specifically mentioned in Exhibit 13 and in respect of which, the appellant having no reason to differ on the clauses contained therein (including the clause on the power of the respondent to determine from time to time the rate of interest chargeable on the overdraft) executed same. Thus, Exhibit 13 remained extant since by executing Exhibit 31, the appellant was thereby bound by the terms and conditions stipulated therein. See Allied Bank Nig. Ltd. v. Akubeze (1997) 6 NWLR (Pt.509) 374 at 403-404. Ezeugo v. Ohanyere (1978) 6-7 SC 171. It should be borne in mind that the appellant, without compulsion and clearly under no mistake or misrepresentation signed Exhibit 31. It gave its full backing and agreement to be bound by the contents of the exhibits. It cannot now be heard to resile from the contents and the court below was clearly right in giving full weight to Exhibit 31 in arriving at its decision.
The clear implication of clause of Exhibit 31 is that the interest rate fixed at 13% is not static or constant. Thus, the determination of the applicable or reigning interest rate from time to time was left at the discretion of the respondent. The term obtained in clause 1 of Exhibit 31 is similar to the terms construed by the Supreme Court in U.B.N Plc. v. Ozigi (1994) 3 NWLR (Pt.333) 385. I am not persuaded by the argument of learned counsel for the respondent that the Ozigi case is distinguishable from this case in that, in the former case both the interest rate fixed and the power to vary it were contained in the same deed of legal mortgage. True, in this case the interest rate fixed at 13% is contained in Exhibit 13 while the discretion conferred on the appellant to vary the rate of interest from time to time obviously as circumstances dictate, is incorporated in Exhibit 31. The difference of this case and the Ozigi case in my view lies not in the substance but the form. Although Exhibit 13 fixed the rate of interest nevertheless the appellant had sufficient time and did study Exhibit 31. It arrived at a decision to execute Exhibit 31 out of its volition. It saw clause 1 and accepted to be bound by it. It will therefore be wrong for the appellant, after accepting to be bound by the terms in Exh. 31 to turn round and reject clause 1 obviously after having enjoyed the overdraft. Thus, whether the fixed interest rate and the discretion to vary the applicable interest rate are contained in different documents as in this appeal, or in one document as in the Ozigi case makes no difference since that what is of paramount importance is the manifestation of parties to be bound by the terms and conditions agreed upon.
I should perhaps point out that in Nigeria, the power to fix the prime lending rate is statutorily vested in the Central Bank of Nigeria. Section 15 of the Banking Act, now Cap. 28 of the Laws of the Federation 1990 empowers the Central Bank to determine from time to time, prime lending rate which all commercial banks are bound to comply with and fix their respective interest rates within the range determined by the Central Bank. See Koiki v. First Bank Plc. (1994) 8 NWLR (pt.365) 665 at 671.
The respondent has pleaded in its paragraph 2 of the counter-claim the reigning interest rate of 34%. Exhibits 30 and 31 were tendered in evidence. As well Exhibits 23 and 25 being the statements of account of the appellant were tendered. In Exhibit 25, the changing applicable rates of interest were reflected at the bottom of some of the pages at the right side thereof. This shows clearly that notice of the determination of the reigning interest rate was always communicated to the appellant: See UBN Plc. v. Sax (Nig.) Ltd. (1994) 9 SCNJ 1 at 15, (1994) 8 NWLR (pt.361) 150. Having regard to what I have said above, I am of the view that the learned trial Judge was right in awarding interest at the rate of 34% on the sum claimed by the respondent from 1/10/93 to the date of judgment.
On the post judgment interest rate of 21% the learned trial Judge found as follows:-
On the counter claim I find from the evidence of D.W.2 that as at 20/9/93 the plaintiff was owing the defendant the sum of N1,418,076.10 and this is supported by Exhibit 25 page 66. The plaintiff who is the defendant to the counter claim did not challenge Ext. 25 to show that it was not true, or amount stated is not correct. Nor did he challenge or contradict the evidence of D.W.2. I therefore accept the evidence of D.W.2 as true and Exh. 25 as the correct amount owed to the plaintiff in the counter-claim. Therefore judgment is entered in favour of the counter-claim 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 (Italics supplied by me)
With the finding of the learned trial judgment in the sum of N1,418,076.10, the said sum, together with its accrued interest becomes a judgment debt. See Ekwunife v. Wayne (WA) Ltd. (1989) 12 SCNJ 99 at 118, (1989) 5 NWLR (Pt.122) 422. It is now settled law that the power to award interest on judgment debt rests on a different principle. It is awarded at the discretion of the Court upon pronouncing the judgment and with effect from that date. See Ekwunife v. Wayne (WA) Ltd. cited (supra) at P. 119. Interest on judgment debt is provided for in various rules of Court and may vary depending on which rules of court are applicable. Of course parties may agree to enter into contract and bind themselves to pay an agreed interest rate. However, the circumstances under which the learned trial Judge granted the 21% interest on the judgment debt is made otherwise than as an interest rate agreed upon by parties. The interest rate the respondent claimed in its counter claim is 34%. However, the learned trial Judge did not grant the respondent interest rate it claimed. He equally did not say why he did not grant to the respondent the interest rate it claimed. He simply granted 21% interest (rate) from the date of judgment until the whole debt is liquidated. I am convinced beyond doubt that, the learned trial Judge granted the 21% interest rate on the judgment debt in his own discretion. I should stress that the 21% interest rate on the judgment debt granted by the learned trial Judge was not claimed by the respondent. Learned trial Judge did not also say why he granted the interest rate lesser than what the respondent claimed. Evidently therefore, the learned trail Judge was acting under his discretion in making the award. In Plateau State, the power of a trial Judge to award interest rate on judgment debt is regulated by Order 40, rule 7 of the Plateau State High Court (Civil Procedure) rules 1987. That rule provides:-
“The court at the time of making any judgment or order, or at any time after wards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the court thinks fit, and may order interest at a rate not exceeding ten naira per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be”.
I hardly need to emphasize that the above rule has not been complied with. The learned trial Judge has no power to award 21% interest rate on judgment debt. See National Employers Mutual General Insurance Ass. Ltd. v. Martins (1969) 1 NMLR 236 at 241; Jallco Ltd & Anor. v. Owoniboys Tech. Services Ltd. (1995) 4 SCNJ 256 at 274, (1995) 4 NWLR (Pt.391) 534. The award of 21% interest rate on the judgment sum having been done far in excess of the rate provided for by Order 40 r.7 aforesaid cannot be sustained. Consequently, the award of 21% interest is not valid as it is not sustainable in law. Issue No. (iii) in the appellant’s brief is answered in the affirmative while issue No. IV is answered in the negative. Which is to say that in issue 2 identified by the respondent the answer is that whereas the award of 34% pre-judgment interest rate is valid and justified, the award of 21% interest rate on the judgment debt, in the circumstances it was awarded by the learned trial Judge is illegal and therefore void.
The third and last issue posed the question, whether the appellant is indebted to the respondent and whether the respondent was entitled to judgment on the counter-claim?. On this issue, it was submitted for the appellant in his brief of argument that the court below was in error in entering judgment for the respondent and in dismissing the appellant’s claims. That there was no binding agreement on the sharing of the money realized from the sale of the iron pipes between the appellant and the University of Jos in the ratio of 45% and 55% respectively. It was argued that short of an authority from the appellant to respondent mandating it to so share the proceeds, the latter had no power to do so. It was submitted that the respondent having arrived at the sum it claimed by computing its entitlement on a wrong interest rate, the claim of the respondent so formulated was wrong and unfounded. We were urged to allow the appeal on this ground.
On the side of the respondent, it was submitted that the claim of N1,418,076.10 was substantiated. Exhibits 1 and 25 were relied upon to establish that the appellant’s account was in debit to the amount claimed as at 27/9/93. That the exhibits were not impugned at all. A good narration of the facts which gave rise to the sharing was admirably presented. It was submitted that having regard to the evidence before the Court below, that Court was right in dismissing appellant’s claim and entering judgment for the respondent on its counter claim. We were therefore urged upon to answer issue 3 in the affirmative.
The answer I arrived at in considering the first issue for determination has effectively answered this issue. It was a panorama which gave a complete answer to this issue. After a thorough consideration of issue 1, my unequivocal answer was that the appellant agreed to a sharing formula of 32.5% and 67.5% between it and the University of Jos in sharing the proceeds from the sale of the iron pipes as is clearly reflected in Exhibit 17A. The respondent, though not expressly mandated by the appellant worked out more favourable sharing formula ensuring therein that the appellant got a higher percentage. That formula gave the appellant an enhanced ratio of 45%. See Exhibit 18. The appellant in Exhibits 19, and 20 referred to the payment that was to be mode in its account and that of the University as per agreement. It also drew the attention of the respondent to the ‘previous meetings with University authority and the former bank manager’,- who represented the respondent. The appellant equally wrote to the respondent seeking to know have much of the total proceeds from the sale of the iron pipes was made, to Edilco’s account and also the University of Jos. Implicit in the above is that, a sharing formula was agreed upon. That formula is 67.5% and 32.5% as reflected in Exhibit 17A. If, instead of receiving 32.5% the appellant got 45% as a result of the benevolence of the respondent. I cannot see any injustice that enures to the appellant even if the respondent was not acting as the agent of the appellant. No miscarriage of justice was subsequently occasioned when the learned trial Judge accepted as a fact that the appellant’s share is 45%.
Further more, Exhibit 25 did show the debit balance of the appellant standing at N1,418,076.10 as at 27/9/93 after the appellants’ share of 45% was credited to its account and accordingly utilized in reducing its outstanding indebtedness in relation to the overdraft. The finding of the learned trial Judge at page 90 lines 8 to 13 appears to be well founded given the state of the pleadings and the evidence led. The finding is as follows:-
“On the counter claim, I find from the evidence of DW2 that as at 20/9/93 the plaintiff was owing the defendant the sum of N1,418,076.10 and this is supported by Exhibit 25 page 66. The plaintiff who is the defendant to the counter claim did not challenge Exhibit 25 to show that it was not true or the amount stated is not correct”.
The learned trial Judge was therefore right in my view to his finding that the appellant was indebted to the respondent and he was equally correct in entering judgment for the respondent on its counter claim. This issue is answered in the affirmative.
Having reached my decisions on the issues as reflected in this judgment, the appellant herein has succeeded on the 4th issue for determination appearing in his brief of argument. Consequently, the award of 21 % interest rate on the judgment debt having been made contrary to Order 40 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 30/1/96 is hereby affirmed except as it affects the payment of 21% interest rate on the judgment debt which is accordingly set aside.
Having regard to the fact that the appellant has succeeded in part, I feel it expedient not to make any order as to costs. Consequently, I make no order as to costs.
Other Citations: (2000)LCN/0773(CA)