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In The Supreme Court of
On Friday, the 11th day of
January 2008
Before Their Lordships
S.C. 216/2000
Between
And
Judgement of the Court
Delivered by
Ikechi
Francis 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
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
A dispute later arose between
the parties as a result of the 2nd Respondent,
concealing from the 2nd
Appellant, of relevant documents and the payment by the FCDA of the pending
sum of 14439,090,342.80 (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 No. LD/2992/96
against the 1st and 2nd defendants and the Central
Bank of
"(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 contracts at Phase 1 and Phase II,
(3)
Payment over to the Plaintiffs 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 ease 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 30' day of November, 1992 and supplemental Agreement dated 1st
day of December, 1992 is between Plaintiffs 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 the 2nd Defendant.
(6)
That the above is hereby made the consent Judgment of this Honourable
Court.
Dated at
(the
underlining mine)
After the above Consent
Judgment, the FCDA, paid the 2nd instalment of
The cause of the proceedings
leading to the instant appeal, was/is the
concealment by the 2nd
Respondent from the 2nd Appellant, the payment by the FCDA to the 2nd
Respondent, the 3rd instalment of the sum of
1471,169,942,32 (Seventy-one
million, one hundred and sixty-nine thousand, nine hundred and forty-two
naira thirty-two kobo).
The Appellants, apart from
instituting two separate actions to claim the 35% (thirty-five percent)
share of the said contract sum - i.e. the 3rd Instalmental
payment, applied by Motion on Notice, for
Attachment and/or Garnishee
proceedings seeking for four (4) orders of the trial High Court by virtue of
the Consent Judgment. The application came up before Rhodes-Vivour,
J. (as he then was). The issue before His Lordship, was whether the said sum
of
The 1st and 2nd
Respondents, dissatisfied with the said Ruling, appealed to the Court of
Appeal, Lagos Divisional (hereinafter called "the court below"). They also,
filed an application for stay of execution pending the hearing and
determination of the appeal. On 12th October, 1999, the court
below, in a considered Ruling, granted unconditionally, the application for
a stay of execution. See pages 213 to 226 of the Records. Dissatisfied with
the said Ruling, the Appellants appealed to this Court.
In respect to the instant
appeal to this Court, after the parties had filed and exchanged Briefs in
the court below that heard arguments from the parties, on 10th
May, 2000, the court below, (Coram:
Oguntade, Aderemi,
Sanusi, JJCA) in a considered Judgment, -
per Oguntade, JCA (as he then was), allowed the
appeal and held in the main, that paragraph/Clause 4 of the said Consent
Judgment, did not apply to the
payment of the said
Dissatisfied with the said
Judgment, the Appellants, have appealed to this Court on four (4) grounds of
appeal. Without their particulars, they read as follows:
"Ground One:
The learned Justices of the
Court of Appeal misdirected themselves in fact when they found that the 2nd
Respondent was not bound to pay the 2nd Appellant the sum of
£424,909,480.11 representing 35% of the sum of N71,162(sic)
943.32 being the second payment received after the consent judgment
despite the subsisting agreement entered as consent judgment between the
parties.
Ground Two:
The learned Justices of the
Appeal (sic) misdirected themselves on the facts and occasioned a
miscarriage 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 Appellants 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
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 2n Appellant and the 2" 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 of 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 2" Appellant was not entitled to the
payment of 35% of W77,169,943.32
being the 3r C. V. payment for the installation of Traffic Lights
at Abuja even though Parry Osayande and Parry
Blue Chips had been paid by the 2" Respondent out of the 3r 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 Professional (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
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
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 Appellants' 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,
Esqr., 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 to-day.
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
...................
See and compare with the
immediate paragraph after Clause 12.
"From the 1st
instalment of
At page 3 thereof, the
calculation of the amounts paid, are erroneous and misleading. For instance,
where the figure/amount of
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
At the said page 11 of the
Brief, in paragraphs 3, 4 and 5, what appears throughout, is stated to be
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 Sabiba v.
Yassin (2002) 2 SCNJ. 14 at
24 and Ezemba
v. Ibeneme & anor.
(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
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 Mma
Sha (Jnr.) & anor.
v. Da Rap.
Kwan & 4 ors. (2000) 5 SCNJ.
101; Lebile v. The
Registered Trustees of
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 in fact 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, in fact,
speaking for myself, no need for any oral evidence which may amount to
giving evidence in respect of the contents 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) SCNL 280 and S.C.O.A. (
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 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. Federal Housing Authority (1992) 1 NWLR (Pt.219)
548: (1992) 1 SCNJ.73. Texaco
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
underlining 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. Eleme & 2 ors.
(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
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
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
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
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 surphrsage (sic). See
Nasr V. Bovari
(sic) (1969) All N.L.R. 35. Words are not to be added. See
Mabinnor
(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 text".
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
Bank of Nig. Ltd, (not UBA Ltd.) & Anor.
v. Nwaokolo (1995) 6 NWLR (Pt.400) said to
be at 132 (it is at (P.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) 4 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 1 of their Reply Brief to the 1st
and 2nd Respondents' Brief and under issue one of the
Appellants); this Court - per Onu, JSC 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 in fact said or
written down. Accordingly
the words employed by them will be 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,
Nwangwu v. Nzekwu & Another (1957) 3 FSC
36 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,
The point must also be made that it is not the function of a Court to make
or rewrite a contract for the parties. See Fakorede
& ors. v. A.G. of
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
payment 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
underling 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 2n 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
"Being 3rd
C.V. payment made to the
above-named Coy (i.e. the 2nd Respondent)
for supply and installation of
Traffic Light at 64 junction in
(the
underlining mine)
Evidence of this payment is
Exhibit C.
It is therefore, beyond doubt,
that the said payment, was the said 3rd
instalment 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
6.
That the sum of
7.
That the Judgment Debtors have refused failed or neglected to pay the
sum of
8.
That the Garnishees jointly and severally have the funds of
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 Account 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
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
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 on us, the
credit balance in its Account was
9.
That the statement of its Account with our Bank as at today, show the
credit balance in the Account to be
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 Lordship's
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
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 Schroeder & 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
underlining 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
underlining 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 no where 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, |