AFROCATS NIGERIA COMPANY LIMITED & ANOR v. SKYE BANK PLC & ANOR

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PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Lagos Division delivered on the 25th day of April, 2007, wherein His lordship entered judgment in favour of the Respondents who were Plaintiffs in that Court.

It is imperative to note that this matter was filed at the Federal High Court, Benin City and Hon. Justice I.N. Auta commenced hearing of the matter before he was transferred to the Lagos Division. His Lordship had to conclude the matter at the Lagos Division upon a Fiat issued to that effect.

SUMMARY OF RELEVANT FACTS
The facts giving rise to this appeal as gleaned from the record of appeal are as follows: by a Deed of Debenture dated 10th day of December, 1996 the 1st Respondent then known as Afri Bank Plc extended a loan facility to the 1st Appellant to the tune of Sixty Million Naira. The 2nd Appellant was surety to the loan. While the 1st Respondent contends that the entire amount was drawn down, the 1st Appellant on its part said only Forty Million Naira was drawn down.

According to the Appellants, as at 30th day of June 1999, the Appellants were indebted to the 1st Respondent to the tune of N36,202,020.46. Following a series of demands, both in writing and orally, the 1st Respondent in exercise of its powers under the Deed of Debenture appointed the 2nd Respondent as Receiver as regards the assets of the 2nd Respondent.

By a writ of Summons dated 4th day of November, 1999 the Respondents as Plaintiffs instituted a suit at the Federal High Court Benin Division claiming some declaratory and injunctive reliefs principally for the Court to declare that they have the powers to appoint the 2nd Respondent as Receiver and to restrain the Appellants from interfering with the duties of the 2nd Respondent. The suit was heard, on the part of the Respondents, on the basis of a Statement of Claim dated 20th day of April, 2002 and an Amended Reply dated 22nd day of November 2006. On its part, the Appellants filed a further Amended joint statement of defence dated 3rd day of October 2006.

At the hearing of the matter, both parties called two witnesses and counsel filed written address. In a considered judgment, the Hon. Judge entered judgment for the Plaintiffs/Respondents. The instant Appeal is an off shoot of the said judgment.
By an Amended Notice of Appeal dated 29th day of October, 2015 but filed on 3rd day of November 2015, the Appellants filed the following Grounds of Appeal. The Grounds of Appeal are reproduced hereunder, though without their particulars:
GROUND ONE:
The learned judge of the lower Court erred in law by failing to take cognizance of the oral and documentary evidence adduced by the Defendants/Appellants to show that the 1st Defendants/Appellants had repaid a sum in excess of the sum claimed by the 1st Plaintiff/Respondent before the purported appointment of the 2nd Plaintiff/Appellant as a Receiver/Manger.
GROUND TWO:
The learned judge of the lower Court completely misconstrued the provisions of clauses 10 and 11 of Exhibit A (the Deed of Debenture) and wrongly held that The 2nd Plaintiff is therefore rightly appointed as a Receiver/Manager of the 2nd Defendant
GROUND THREE:
The learned judge of the lower Court erred in law when he held that The Court is in total agreement with the submission of the Plaintiff counsel that the 1st Plaintiff can enforce the provisions of Exhibit A despite the fact that it did not execute the document but executed in its favour by the Defendant.
GROUND FOUR:
The learned judge of the lower Court erred in law when he admitted Exhibit E in evidence and ascribed the status of an admission of the alleged indebtedness to the document.
GROUND FIVE:
The learned judge of the lower Court erred in law when he held that the lower Court had jurisdiction to entertain the case.
GROUND SIX:
The learned judge of the lower Court was biased against the Appellants and their counsel.
GROUND SEVEN:
The learned judge of the lower Court erred in law when he held that I have considered the reply filed by the Defendants and find that they are not replies on point of law or on issues raised by the Plaintiff in his final address. The Court therefore will not consider them in this judgment, they are accordingly struck out.
From the above Grounds of Appeal, the Appellants distilled the following issues for determination:
One: Whether a proper evaluation of the oral and documentary

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evidence adduced on behalf of the Appellants would not have shown that the 1st Appellant had repaid a sum of money in excess of the amount claimed by the 1st Respondent before the appointment of the 2nd Respondent as a Receiver/Manager (Ground 1).
Two: Whether or not the 2nd Respondent was validly appointed as a Receiver/Manager of the 1st Appellant under and by virtue of the Deed of Debenture (Exhibit A) Ground 2.
Three: Whether the lower Court was right in concluding that the 1st Respondent could enforce the provisions of Exhibit A despite not being a party thereto and not having executed same (Ground 3).
Four: Whether the lower Court was right when he admitted Exhibit E in evidence and ascribed the status of an admission of the alleged indebtedness to the document (Ground 4).
Five: Whether the trial Court was right in holding that it had jurisdiction to entertain the case (Ground 5).
Six: Whether it was not a misdirection which occasioned a miscarriage of justice for the trial Court to hold that the Reply filed on behalf of the appellants was incompetent (Ground 7).
On its part, the Respondents in a Brief of

Argument dated 1st day of April 2017, filed on 7th day of April, 2017 but deemed as properly filed on 10th day of April 2017, distilled two issues for determination, to wit:
One: whether or not the trial Court was right when it held that the Respondents were entitled to judgment (Grounds 1,2,3,4 and 7).
Two: Whether or not the trial Court had jurisdiction to hear and determine the Respondents??? case.
NOTICE OF PRELIMINARY OBJECTION:
The Respondents in their Brief of Argument raised a preliminary objection predicated on two issues, (a). That ground one and issue one raised from it does not relate to or arise from the judgment of the trial Court; (b) Particular (b) of ground 5 of the Notice of Appeal is incongruous.
Arguing the first point, learned counsel to the Respondents contended that Ground one of the Appellants Notice of Appeal did not attack/challenge the judgment of the trial Court. He opined that Ground one has no bearing whatsoever to the judgment being appealed against. Counsel cited the cases of AKPAN V. BOB (2010) 17 NWLR (PT.1223) 421 @ 464 to highlight the instances from which a ground of Appeal can arise.He submitted that Ground one of the Notice of Appeal neither challenged the inaction or omission of the Court nor does it arise from the text of the decision appealed against, or from the procedure under which the decision was rendered.
Arguing further, learned counsel stated that the issue of whether oral and documentary evidence showed that the Appellants paid a sum in excess of that claimed before the appointment of 2nd Respondent as Receiver/Manager was never canvassed at the lower Court nor was it pleaded by the Appellants.
Flowing from the submission above, counsel cited AMADI V. ORISAKWE (1997) 7 NWLR (PT.511) 161 @ 170, and GARUBA V. OMOKHODION (2011) 14 NWLR (PT.1269) 145 @ 177 to urge that issue one distilled from Ground one be dismissed as incompetent.
Proffering argument on the second point of objection, learned counsel to the Respondents contended that the essence of particulars in a ground of Appeal is to highlight the complaint and clarify it. He stated that a particular must not be independent of, rather it should be ancillary to the Ground of Appeal. Counsel submitted that the particulars in question are incongruous with Ground 5 which is challenging the jurisdiction of the lower Court. Learned counsel cited many authorities including HONIKA SAWMILL (NIG) LTD V. HOFF (1994) 2 NWLR (PT.326) 251 @ 262 and urged the Court to strike out particulars (b) of Ground 5 for being incompetent.
Reacting to the preliminary objection, the Appellant in a Reply Brief dated 25th day of May 2017, filed on 31st day of May, 2017 but deemed as properly filed on 4th day of July, 2017 argued that the preliminary objection is misconceived. Counsel contended that the Ground of Appeal in question is challenging the failure of the trial judge to evaluate the evidence of the Appellants witnesses as regards payments made via Exhibits P-P10.
Relying on the case of BOB V. AKPAN (supra) cited by the Respondents, learned counsel for the Appellants contended that Ground one is competent as it challenged the omission of the Court to evaluate evidence adduced before it. Counsel called in aid the case of FIRST BANK OF NIGERIA PLC. V. T.S.A. INDUSTRIES LTD. (2010) 15 NWLR (PT.1216) 247 @ 291-292 to buttress the point that failure of the Court to discharge its duty in considering and pronouncing on the issues raised entitles the aggrieved party to appeal.
Learned counsel summed up his argument by citing UWAZURUIKE V. NWACHUKWU (2012) LPELR 15353 to the effect that a Ground of Appeal that is not capable of misleading the other party and the Court is competent if its meaning can be reasonably elicited, and cannot be considered objectionable.

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Counsel to the Appellants also stated that the gist of the second ground is the view held by the trial Court that the case involved appointment of a Receiver and the issue of Debenture which conferred jurisdiction on the Federal High Court. Counsel submitted that particular (b) of ground 5 is competent as in the absence of valid appointment of a Receiver, the matter would be that of Banker/Customer relationship, wherein the Federal High Court would not have jurisdiction.
Counsel again submitted that since the objection, even if it succeeds, would not affect the entire appeal, the proper procedure would have been for the Respondents to file notice of motion. Counsel cited AUDU & ANOR. V. GIDEON & ANOR (2015) 12 NWLR (PT. 1474) 495 @ 514-515 and a host of other cases in support of this contention. He urged the Court to dismiss the objection as misconceived.
OPINION ON THE NOTICE OF PRELIMINARY OBJECTION:
On the first point raised by the Respondents, I quite agree with the proposition that a ground of Appeal must challenge the judgment but it is not the law that a ground of Appeal must reproduce verbatim the words of a judgment. The various instances where a ground of Appeal can be raised were aptly captured in Oguefi v. A.S.E.C.(2011) ALL FWLR (PT.603) 1873 @ 1901 @1902 PARAS G-C, where it was held inter alia thus though a ground of appeal must stem from the text of the judgment (ipsissima verba) and this by no means limits the scope of a ground of appeal. A ground of appeal can arise in a number of situations such as the following: a) from the text of the decision appealed against. b) from the procedure under which the claim was initiated. c) from the procedure under which the decision was rendered. d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates, or e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even over doing the act complained of.
An appraisal of the above cited authority and those cited by the Respondent, shows without doubt that ground one of the Appellants grounds of Appeal is competent and the issue distilled from it is also competent. The objection of the Respondent on this score is therefore misconceived and accordingly struck out.
On the second point, I agree with the learned counsel for the Appellant that the particulars in question shed light on the Ground of Appeal. Even though it was drafted inelegantly, that does not, in my view make it incompetent. The Respondent was not misled in any way as to the complaint of the Appellant in this ground of Appeal. This objection, in my view is without merit and totally misconceived. The preliminary objection is hereby dismissed.
ARGUMENT ON THE ISSUES:
Issue one: whether a proper evaluation of the oral and documentary evidence adduced on behalf of the Appellants would have shown that the 1st Appellant had repaid a sum of money in excess of the amount claimed by the 1st Respondent before the appointment of the 2nd Respondent as a Receiver/Manager.
Learned counsel to the Appellants in arguing this issue stated that it is the duty of Court to properly evaluate the evidence before it and improper or non-evaluation of evidence will lead to a miscarriage of justice. Counsel also submitted that the Court misapprehended the Appellants’case which was that a sum in excess of the amount drawn down was repaid by the 1st Appellant to the 1st Respondent before the purported appointment of a Receiver.
Counsel contended that if the trial Court had done a proper evaluation of evidence, it would not have reached the conclusion, as it did, that the defendants denied liability and claimed that they had repaid the loan in full without tendering any document, in view of Exhibits M-M10 and/or Exhibit N, P-P10; and Exhibits H-H7. Counsel submitted that it is the duty of Court to consider the totality of the evidence adduced by or on behalf of a party, including evaluation of documentary evidence. On this counsel cited MOHAMMED V. ABDULKADIR & 73 ORS(2008) 4 NWLR (PT.1076) 111 @ 156.
Arguing further, counsel quoted excerpts from the judgment, as well as x-rayed evidence by witnesses and submitted that the trial judge abdicated his duty of evaluation of evidence, but placed reliance on Exhibit D in spite of the fact that some repayments were not captured in Exhibit D. Counsel pointed out that the claim of the Respondents was merely for declaratory reliefs and no where did they seek a declaration that the Appellants are indebted to them, contrary to the conclusion of the judge at page 111 of the records.
Learned counsel noted that in spite of issues being joined on the actual amount drawn down ( i.e whether 60million as claimed by the Respondents, or 40 million claimed by the Appellants) the trial judge did not deem it worthy of consideration in his judgment. Counsel cited MUSA V. CHRISTLIEB PLC (2000) 12 NWLR (PT.680) 145 @ 154-155 PARAS H-A on the point that a trial Court should evaluate and ascribe probative value to documents which it has admitted in evidence, and that a written receipt is not the only means of proving payment in our law. Counsel concluded by urging the Court to resolve the issue in favour of the Appellants.
Reacting to this issue, learned counsel to the Respondents after highlighting the evidence of the parties stated that the Appellants did not specifically controvert the amount stated on Exhibit D but only argued that other antecedent transactions between the 1st Respondent and 1st Appellant were not stated on it. Relying on the cases of OBITUDE V. ONYESOM COMM. BANK LTD. (2014) 9 NWLR (PT.1412) 381; TAHIR V. J. UDEAGBALA HOLDINGS LTD (2004) 2 NWLR (PT.857) 438, and THOR LTD V. F.C.M.B. LTD. (2005) 14 NWLR (PT.946) 696 @ 716counsel submitted that it is not enough for the Appellants to merely deny the claim or aver that some payments made were not taken into account. That they ought to have tendered an alternative statement of account or set out the details and particulars of the payment in their defence.

On the point that Exhibit D was not properly admitted, premised on the case of YESUFU V. A.C.B. (1976) 1 ALL NR 264 @ 272 counsel submitted that the evidence of PW1 substantially complied with the provisions of Section 89 (1) of the Evidence Act as regards the admissibility of Exhibit D.

Issue two: Whether or not the 2nd Respondent was validly appointed as a Receiver/Manager of the 1st Appellant under and by virtue of the provision of the Deed of Debenture.
Issue three: Whether the lower Court was right in concluding that the 1st Respondent could enforce the provisions of Exhibit A despite not being a party thereto and not having executed same.

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Learned counsel for the Appellants argued issues two and three together and contended that a party cannotacquiese to or alter the illegal status of an act not founded on any law, thus the acknowledgement of the 2nd Respondent by the Appellant does not legitimize the appointment. Counsel called in aid CERAMIC MANUFACTURING NIG. PLC V. N.I.D.B. (1999) 1 NWLR (PT.627) 385 @ 394 to drive home the point that the appointment of a receiver can only be made under a power contained in the debenture between the parties.
Arguing further on this point, counsel submitted that there is no Deed of Debenture between the Appellants and the 1st Respondent and that there is no provision for the appointment of a Receiver in the Deed of Debenture (Exhibit A). Counsel stated that the 1st Respondent is a stranger to the contract. He cited A.G. FEDERATION V. A.I.C. LTD (2000) 10 NWLR (PT.675) 293 @ 306, 314 to the effect that a contract affects the parties to it and cannot be enforced by or against a person who is not a party even if the contract is made for his benefit. Counsel opined that what is contemplated by the Deed of Debenture is the appointment of a Receiver for the Appellants by a third party and not by the 1st Respondent. Learned counsel cited PONSON ENTERPRISES (NIG) LTD V. NJIGHA (2000) 15 NWLR (PT.689) 46 @ 61 and stated that by the nature of the reliefs claimed by the Respondents at the Court below, there was need for them to have filed an affidavit of suitability stating the facts and circumstances from where the Court can glean the suitability or otherwise of the appointment of the 2nd Respondent as a Manager/Receiver. Counsel opined that failure to file the aforesaid affidavit was fatal to the case of the Respondents.
Learned counsel for the Appellants summed up argument on these issues by submitting that the appointment of a Receiver cannot be lawful or legally justified without an express provision in a contract between the parties authorizing such appointment. He cited NIGERIAN BANK FOR COMMERCE AND INDUSTRY & ANOR. V. ALFIJIR (MINING) NIG.LTD (1999) 14 NWLR (PT.368) 176 @ 202.
Learned counsel for the Respondent reproduced Clauses 10 and 11(vii) of Exhibit A and went on to submit that the conditions envisaged in Clauses 10 and 11 had arisen for the 1st Respondent to exercise its power to appoint the 2nd Respondent as a Receiver/Manager over the plants and machinery of the Appellants.
On the privity of contract and the appointment of the 2nd Respondent as Receiver, learned counsel for the Respondents referred to paragraph 2 of the Further Amended Joint Statement of Defence, which was admitted in paragraph 1 of the Amended Reply and stated that parties are bound by their pleadings. Counsel contended that having admitted the existence of a contract between the Appellants and the 1st Respondent, they cannot turn around and disown same in their brief. Counsel cited AJIDE V. KELANI (1985) 3 NWLR (PT.12) 248 @ 269 to the effect that a party should be consistent in stating and proving his case. Counsel submitted that the fact of privity of contract was not in issue, and cited authorities as to when facts can be said to be in issue.
Counsel further cited Section 81(1) of the Property and Conveyance Law 1959 as applicable to Edo State, and referred to the view of Prof. I.E. Sagay in the Book, Law of Contract (First Edition, Spectrum Law Publishers, 1991) at Page 432 to the effect that a third party not named in a contract can enforce it if same is made for his benefit. Counsel submitted that Exhibit A as an executed guarantee makes the Appellants liable to the Respondents for the unpaid debts. Counsel contended that the 1st Respondent having furnished consideration under Exhibit A and being beneficiary of the Deed of Debenture, they were legally justified to have taken steps under Exhibit A to appoint 2nd Respondent to recover the money lent to the 1st Appellant. Learned counsel cited AWOJUGBAGBE LIGHT INT. LTD V. CHINUKWE (1995) 4 NWLR (PT. 390) 379 @ 393 and CHIDOKA V. F.C.F.C. LTD (2013) 5 NWLR (PT.1346) 144 @ 174-175 to buttress the point that it is reprehensible to denounce a contract after taking benefit from same.
Moreover, learned counsel stated that having acknowledged the 2nd Respondent as a Receiver, the Appellants have waived their rights and therefore cannot approbate and reprobate at the same time. Counsel highlighted that the issuance of cheques (Exhibits H-H7) to liquidate the Appellant’s indebtedness to the 1st Respondent is nothing but an admission of the claim of the Respondents and the Receivership. Counsel cited DALA AIR SERVICES V. SUDAN AIRWAYS (2005) 3 NWLR (PT.912) 394@ 411 in support of this contention.

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Issue four: whether the lower Court was right when he admitted Exhibit E in evidence and ascribed the status of admission of the alleged indebtedness to the document.
Learned counsel for the Appellants set the tune for argument of this issue by citing UNILIFE DEV. CO. LTD. V. ADESHIGBIN & 4ORS (2001) 4 NWLR (PT.704) 609 @ 626 to the effect that instruments are to be construed harmoniously and not disjunctively. Counsel contended that Exhibit E was made without prejudice and during the pendency of this suit. Reference was made to Sections 91(3) and 25(1) of the Evidence to show that any document made during the pendency of a matter, and offer of compromise made without prejudice cannot be given in evidence against a party as admission. Counsel called in aid FAWEHINMI V. NBA (NO. 2) (1989) 2 NWLR (PT.105) 558 @ 622 and ASHIBUOGWU V. A.G. BENDEL STATE (1988) 1 NWLR (PT.70) 168-170 on this point.
Learned counsel further opined that admissions are not conclusive proof of the matters allegedly admitted and to operate as estoppels, the beneficial party must not only rely on the said admission but must have acted upon it to his prejudice or have altered his position. The case of EHIDIMHEN V. MUSA (2000) 8 NWLR (PT.669) 540 @ 556 was referred to, and counsel contended that the Respondent did not act on the contents of Exhibit E to their prejudice. He further reiterated that Exhibit E was not an unqualified admission in the circumstance of the case and further contended that Exhibit E is a draft document of a meeting which the Respondents’ representative did not sign. Counsel referred to A.G. KWARA STATE & ANOR. V. ALAO & ANOR. (2000) 9 NWLR (PT.671) 84 @ 104in support of the point that a draft document has no probative value.
Lastly on this issue, counsel cited MOBIL OIL NIG LTD. & ANOR V. NATIONAL OIL & CHEMICAL MARKETING CO. LTD & ANOR (2000) 9 NWLR (PT.671) 44 @ 52 to the effect that the binding effect of the minutes of a meeting must find expression in the parties that attended the meeting signing such minutes.
On the part of the Respondents, this issue was argued under issue one at paragraph 5.28 under the heading: admissibility of Exhibit E in evidence and the ascription of status of admission of indebtedness to same by the trial Court. Arguing this issue, learned counsel stated that Exhibit E was pleaded and duly admitted in evidence. He further stated that DW1 accepted under cross examination to have signed Exhibit E, and that on the face of the document, there is no expression without prejudice. Counsel contended that Exhibit E is admission against interest; he referred to Section 21(3) of the Evidence Act, and Order 31 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2000 on the effect of such an admission.
Counsel stressed that the Appellants did not produce any alternative minutes to counter the one they alleged was a draft and summed up by stating that there is no evidence that DW1 executed Exhibit E under duress, undue influence, fraud and/or under misinformation or misrepresentation of facts.
Issue five: Whether the trial Court was right in holding that it had jurisdiction to entertain the case.
Learned counsel for the Appellants contended that since the Receiver was not properly appointed, the instant case is not part of the ones set out in Section 251 of the Constitution, hence the Federal High Court does not have jurisdiction. He made reference to Section 209 (1) of Companies and Allied Matters Act and submitted that the Respondents did not fall within the category of persons that can appoint a Receiver.
In conclusion, counsel cited UMOREN V. AKPAN (2008) 16 NWLR (PT.1113) 223 @ 225 PARA C-E to submit that where a Court lacks jurisdiction over a matter, it has no jurisdiction to pronounce or determine on the rights of the parties therein.
On their part, the Respondents argued this issue as their issue no. two. Learned counsel to the Respondents submitted that the case borders on appointment of Receiver and breach of the Deed of Debenture. He contended that this falls within the scope of Sec 251(e) of the Constitution. Counsel cited ADETONA V. I.G. ENT.LTD (2011) 7 NWLR (PT.1247) 535 @ 551, 570 to the effect that jurisdiction of Court is determined by the claim of the plaintiff.
Learned counsel x-rayed the pleadings of the Respondents as Plaintiffs and submitted that the main relief sought by the Respondents was the confirmation of the 2nd Respondent as Receiver, and injunction restraining the Appellants from interfering with his duties. Referring to Section 7(1)(e) of the Federal High Court Act, counsel submitted that the Federal High Court has jurisdiction in such instance. Counsel called in aid NASHTEX INT’L LTD V. HABIB (NIG) BANK LTD(2007) 17 NWLR (PT. 1063) 308 @ 332; and Sections 393-400 of Companies and Allied Matters Act in support of his contention. Finally counsel urged the Court to resolve this issue in their favour.
Issue No. Six: Whether it was not a misdirection which occasioned a miscarriage of justice for the trial Court to hold that the Reply filed on behalf of the Appellants was incompetent.
In his argument, counsel to the Appellants after highlighting the points addressed in the Reply on points of law submitted that the trial judge erred when he struck out the process. Counsel cited ABDULKARIM V. ANAZODO(2006) 11 NWLR (PT.991) 299 @ 323 PARA E-F on the need for the Court to hear the parties before taking decisions. Learned counsel

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also referred to Black’s Law Dictionary 7th Edition and OGBORU V. IBORI (2005) 13 NWLR (PT.942) 319 @ 380 PARA F-G on the meaning and function of Reply Brief. He summed up argument on this issue by stating that the non consideration of the issues raised in the reply occasioned a miscarriage of justice.
On their part, the Respondents submitted that the said reply on points of law was used by the Appellants to reopen their case all over. Counsel cited YARO V. AREWA CONST. LTD (2007) 17 NWLR (PT.1063) 333 @ 367 on the purpose of reply brief.
Counsel concluded by maintaining that the Appellants have not shown any miscarriage of justice as a result of the alleged non consideration of the reply on points of law.
OPINION:
Having gone through the grounds of Appeal and the issues distilled by both parties, two main points in my view will effectively determine this appeal. The points are: a) whether the 2nd Respondent was validly appointed as a receiver; b) whether the lower Court had jurisdiction to hear and determine the matter.
On the first point, learned counsel for the Appellants argued strenuously that the Appellants had repaid the loans before the appointment of the 2nd Respondent making his appointment void. Counsel also contended that the 1st Respondent is a stranger to the Deed of Debenture and therefore cannot enforce same. In my view, these contentions of learned counsel are not borne out by the records. It is my view that the judge was on solid grounds when he found as a fact that the Appellants were still indebted to the 1st Respondent. It is elementary law that he who asserts must prove. The Appellants were asserting that they have repaid the loan which they took from the 1st Respondent, but a careful perusal of the pleadings and evidence at the lower Court reveals otherwise. The finding of the lower Court that the Appellants were still owing is not perverse, and in my view there is no basis for this Court to interfere with same, see IZE-IYAMU V. ALONGE (2007) ALL FWLR (PT.371) 1570 @ 1595-1596 PARAS H-A.
The conditions for upturning findings of facts were elaborately stated in SOKWO V. KPONGBO (2008) ALL FWLR (PT.410) 680 @ 708 PARAS B-C; I must confess that none of those conditions exists in this appeal.
As regards the argument that the 1st Respondent cannotenforce the Deed of Debenture, I must say that the contention is misconceived. The basis of the 1st Respondent lending money to the Appellants was the Deed of Debenture, it therefore goes without saying that it can enforce it. Flowing from this, is the point that since the Appellants were still owing as found by the Court below, the only means by which the 1st Respondent can recover its money is by exercising the powers stated in the Deed of Debenture which is the appointment of a receiver. In the peculiar circumstance of this case therefore, I am of the view that the 2nd Respondent was validly appointed.
This point without doubt addresses the issue of whether Exhibit E was validly admitted or not. The learned counsel for the Appellant has made heavy weather over the Court hinging its finding of indebtedness on Exhibit E. On this point, an appellate Court is only concerned with the veracity of the judgment appealed against. Where the judgment of the Court is right but the reasons are wrong, the appellate Court does not interfere except where the misdirection has caused the Court to come to the wrong conclusion. See JIKANTORO V. DANTORO(2004) ALL FWLR(PT.216) 390 @ 415 PARAS C-E.
In my view therefore, the 2nd Respondent was validly appointed as found by the lower Court. There is no reason to interfere with the finding. This point should therefore be resolved in favour of the Respondents.
On the second point, it is without doubt that it is the claim of the plaintiff that determines the jurisdiction of the Court. To this end, to determine whether the Court below had jurisdiction to entertain the matter, recourse ought to be made to the claim of the Respondents. The claim of the Respondents is predicated on appointment of a receiver and Deed of Debenture. This without doubt is hinged on the operation of the Companies and Allied Matters Act. The Federal High Court is therefore the appropriate Court to hear and determine the matter. The contention of the learned counsel for the Respondents on this is apposite. It is trite that jurisdiction is a question of law, see OGAGA V. UMUKORO (2012) ALL FWLR (PT.614) 41 @ 63-64 PARAS H-A. In addition, Courts are creation of statutes and it is the statute that confers jurisdiction on a Court, MADUAFOKWA V. ABIA STATE GOVT.(2010) ALL FWLR (PT.516) 563 @ 582 PARAS B-C. In my humble view, the claim of the Respondents is within the purview of the jurisdiction of the Federal High Court, and the Court below rightly assumed jurisdiction.
In the final analysis, I am of the view that this appeal lacks merit and it ought to be dismissed. Accordingly, the Judgment of the Federal High Court delivered on the 25th day of April 2007 is affirmed.
I make no order as to costs. Parties are to bear their own costs.
JIMI OLUKAYODE BADA, J.C.A.: I have read in draft the judgment just delivered by my learned brother PHILOMENA MBUA EKPE, J.C.A.
I agree with his lordship’s reasoning and conclusion that the appeal lacks merit and ought to be dismissed.
The appeal is dismissed by me.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, PHILOMENA MBUA EKPE, JCA. I agree with the reasoning and conclusion contained therein. I also hold that the appeal lacks merit and it is hereby dismissed. I abide by the consequential orders made in the leading judgment including order as to