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

LAWGLOBAL HUB Lead Judgment Report

I.F. OGBUAGU, JSC

The 2nd Respondent – a German Company, appointed the 2nd Appellant, as its only Agent for the purpose of procuring contracts for the installation of Traffic Lights in the Federal Capital Territory, Abuja (Traffic Light Project). Both parties, entered into a written Agreement dated 30th November 1992 and 1st December, 1992 respectively. (See pages 111 to 115 and 116-119 of the Records). The two Agreements, provided for arbitration in respect of any dispute that may arise between the parties relating to the interpretation of the said Agency Agreements (See Clause 18). By the two Agreements, the 2nd Respondent, agreed to pay the 2nd Appellant, a remuneration of 35% (thirty-five percent) of the contract price procured by the 2nd Appellant. The 2nd Appellant, procured contracts from the Federal Capital Development Authority (hereinafter called “the FCDA”) and especially, the contract for the installation of Traffic Lights at 64 Junction, Abuja which was for the sum of N176,839,780.00 (one hundred and seventy six million, eight hundred and thirty-nine thousand, seven hundred and eighty naira) which was later, reviewed upwards to N505,779,424.50 (Five hundred and Five million, seven hundred and seventy-nine thousand, four hundred and twenty-four naira, fifty kobo) less withholding tax and VAT. The FCDA, was to effect payment in four installments. The 1st installment of the sum of N70,735,912.00 (Seventy million, seven hundred and thirty-five thousand, nine hundred and twelve naira), was paid by the FCDA. In terms of or in compliance with the said Agreements, the 2nd Respondent, paid the 2nd Appellant, the sum of N24,757,569.20 (Twenty-four million, seven hundred and fifty-seven thousand, five hundred and sixty-nine naira twenty kobo). A dispute later arose between the 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 N439,090,342.80 (Four hundred and thirty-nine million, ninety thousand, three hundred and forty-two naira eighty kobo) viz AIE NO. BD/398/96. Clauses 3 and 4 respectively of the Agreements, had provided thus: PAGE| 3 “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 Nigeria, claiming the following reliefs: “(1)Specific performance of the terms and conditions by the Defendants of the Agreement dated the 3fh 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, Abuja. (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”. PAGE| 4 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 30th 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. ED/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. PAGE| 5 Dated at Lagos this 1st day of November, 1996”. [the underlining mine] After the above Consent Judgment, the FCDA, paid the 2nd installment of N314,572,275,66 (Three hundred and fourteen million, five hundred and seventy-two thousand, two hundred and seventy-five naira, sixty-six kobo) out of the said balance of N439,090,342.80 as stated on the said AIE No. BD/398/96 leaving a balance of N124,518.067.14 (one hundred twenty-four million, five hundred and eighteen thousand, sixty-seven naira, fourteen kobo) outstanding yet to be paid by the FCDA. The 2nd Respondent paid the 35% (thirty-five per cent) i.e. the sum of N110,100,296.50 (One hundred and ten million, one hundred thousand, two hundred and ninety-six naira fifty kobo) to the 2nd Appellant. Comment by me – there was no problem. 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 installment of the sum of N71,169,942,32 (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 Installmental 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 N71,169,943.32 paid as the said 3rd installment, through an AIE voucher in 1997, was once and for all payment after the said Consent Judgment. While the Appellants asserted that the said payment, was the 3rd installmental payment for the said project, the 2nd Respondent, claimed and maintained that the said payment, was for a separate contract for the said project. After both counsel for the parties had addressed that court, in a considered Ruling delivered on 22nd April, 1999, the learned Judge, found specifically and as a fact at page 105 of the Records, that the basis of the Consent Judgment, is/was the said PAGE| 6 two Agreements of the parties. That the said sum of N71,169,943,32, was actually paid to the 2nd Respondent who lodged it in the 3rd Respondent’s Bank. That the sum of N773,990.80 (Seven hundred and seventy-three thousand, nine hundred and ninety naira, eighty kobo), should be paid to the 2nd Appellant forthwith by the 3rd Respondent/Cross-Appellant. The said Ruling, appears at pages 96 to 106 of the Records. The 1st and 2nd Respondents, dissatisfied with the said Ruling, appealed to the Court of Appeal, Lagos Division (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 N71,169,943.32 such that one could hold that by force of the said Consent Judgment, the 2nd Respondent, was bound to pay the 2nd Appellant, the said sum of 24,480.11 representing 35% of the payment under the said Clause 4. 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 infact when they found that the 2 Respondent was not bound to pay the 2nd Appellant the sum of N24,909,480.11 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 c onsent judgment between the parties. PAGE| 7 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 N71,162,243.3 2 while under GROUND ONE and its No.1 “particulars of misdirection”, the sum is stated to be N71,162,943.32. But under “Relief Sought”, from this Court, the sum stated, is PAGE| 8 N71,169,942.32k. This is really, with respect, not only confusing, incorrect and indeed, very disgusting to me. The Appellants have formulated two (2) issues for determination, namely: “ISSUE ONE Whether having regards to the Agreement dated 30/11/92 and 1/12/92 between the 2nd Appellant and the 2nd Respondent under which various payments have been made relating to the Traffic Light project and realizing that the two said agreements were the pivot in the Consent Judgment of 1/11/96 between the parties, the Court of Appeal was right in isolating clause 4 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 2nd Appellant was not entitled to the payment of 35% of N71,169,943.32 being the 3rd C.K payment for the installation of Traffic Lights at Abuja even though Parry Osayande and Parry Blue Chips had been paid by the 2nd Respondent out of the 3rd C.V. payment. ISSUE TWO Whether there is breach of the provision of Rules 10 and 26 of the Rules of Professional conduct in the Legal 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 N500,000.00 as legal fees by the 2nd Appellant in connection with the execution of the Installation of Traffic Light Project at Abuja the subject matter of this Appeal”. On its part, the 1st and 2nd Respondents, have formulated what they describe as “the only competent issue that can rightly arise from the appeal of the Appellants…….” It reads thus: PAGE| 9 “Whether the Court of Appeal was right when it held that the sum of N71,169,943,(sic) later paid to the 1st and 2nd Respondents by the Federal Capital Development Authority (after the Appellants had been paid 35% share of the current cheque being expected as per paragraph 4 of the consent judgment) does not form part of paragraph 4 of the consent judgment of 1st November, 1996”. When this main appeal and the Cross-Appeal of the 3rd Respondent/Cross-Appellant, came up for hearing on 16th October, 2007, the Appellants and their learned Counsel, were absent without any reason brought to the attention of the Court. However, the Clerk of Court, informed the Court that the learned counsel for the Appellants – one Oji, Esq., was in Court on 17th October, 2006, when this instant appeal was adjourned to 16th October, 2007 for hearing. That in spite of this fact, Hearing Notices, were also sent out to the parties on 6th November, 2006. Kayode Sofola, Esq., (SAN) – learned Counsel for the 1st and 2nd Respondents, with him Ikolodo (Miss), told the Court that the 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. PAGE| 10 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………………. Abuja” See and compare with the immediate paragraph after CLAUSE 12. Reading down the said Page 1 in what I regard as paragraph 6, the following appears: “From the 1st installment of N70,735,912.00 the 2nd Appellant was paid N24,757, 569.20 by the 2nd Appellant (instead of 2nd Respondent) being 35% of the said sum” At page 3 thereof, the calculation of the amounts paid, are erroneous and misleading. For instance, where the figure/amount of N314,572,275.66 should have been stated, what appears at the first paragraph is N314,572.66 which is stated to be PAGE| 11 “out of the sum of N439,090,342.80 stated on the AIE No. BD/398/96 leaving a clear balance of N124,518,067.14 outstanding yet to be paid ……. 2nd Respondent”. At page 11 thereof – first paragraph, it is stated inter alia, thus: “Immediately after the Consent Judgment, the FCDA however was only able to pay N314,572,276.66 as 2nd CV payment and the 2nd Respondent paid N110,100,296.50 to the 2nd Respondent (instead of the 2nd Appellant) leaving a balance ……. to the 2nd Appellant”. At the said page 11 of the Brief, in paragraphs 3, 4 and 5, what appears throughout, is stated to be N71,743.32 (instead of N71,169,942.32). Lastly, the said Issues of the parties, were not related to any of the Grounds of Appeal. In my respectful view, only one issue is relevant in the determination of this appeal – namely Issue ONE of the Appellants and the lone issue of the 1st and 2nd Respondents which arise from Grounds 1, 3 and 4 of the Grounds of Appeal. Since no issue was raised by any of the parties in their respective Briefs in respect of Ground Two of the Grounds of Appeal, I will ignore/discountenance it and accordingly, strike out the ground, on the settled law and practice of the Appellate Courts firstly, that the courts consider only the issues and not the Grounds of Appeal. See the cases of Sabiba v. Yassin (2002) 2 SCNJ. 14 at 24 2002 55cm as and Ezemba v. Ibeneme & Anor. (2004) 7 SCNJ 136 at 155-156. 2004 8scm 96 Secondly, a Ground of Appeal, not having any argument proffered to cover it, is deemed abandoned and will be struck out. See the cases of Alhaji Are & Anor. v. Ipaye & Anor. (1986) 3 NWLR (Pt.29) 416 at 418 C.A.: Chukwuosor v. Obuora (1987) 3 NWLR (Pt.61) 454 at 479 (1987) 7 SCNJ 191 also cited in the case of Lamboye & 3 Ors. v. Ogunsiji & 2 Ors. (1990) 6 NWLR (PUSS) 201 at 231-232 C.A; Ndime v. Okocha (1992) 7 NWLR (Pt.252) 129; (1992) 7 SCNJ, 355 and Ngilari v. Mothercat Ltd. (1995) 8 NWLR (Pt.311) 377 just to mention but a few. This is because, a Ground of Appeal, must have an issue to cover it. See Ibrahim v. PAGE| 12 Mohammed (1996) 3 NWLR (Pt.437) 453; Dieli & ors. v. Iwuno & ors. (1996) 4. NWLR (Pt.445) 622; (1996) 4 SCNJ. 57; Osun v. Asemah (2002) 4 NWLR (Pt.256) 208 and many others. Finally, an Appellate Court can, prefer an issue or issues formulated by any of the parties and can, itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) & Anor. v. Da Rap. Kwan & 4 Ors. (2000) 5 SCNJ. 101; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbebla & 3 Ors. (2003) 1 SCNJ. 463 at 479 2003 2scm 39 and Emeka Nwana v. Federal Capital Development Authority & 5 Ors. (2004) 13 NWLR (Pt. 889) 128 at 142-143; (2004) 7 SCNJ. 90 at 99. 2004 7scm 25 citing several other cases therein. In my respectful view therefore, the excerpt reproduced under this Ground Two, amounts to no more, than the learned Justice, stating that he preferred the issues formulated by the said Appellants. His Lordship, was entitled to do so, provided, that those issues so formulated, clearly took care of the main controversy between the parties. I have already stated that since none of the parties formulated any issue in respect of the said ground two, the said ground stands and remains struck out. Let me therefore, once again, passionately appeal to some or few learned counsel who prepare and file processes in all our Superior Courts of Record and more especially in the Appellate Courts and in this Court in particular, to be more painstaking, and exercise patience in preparing their documents and vetting them before they are filed in the courts. Even if their services are free of charge, but as professionals, once a case or a brief is accepted, then, there is a duty on the part of such counsel, to do a thorough job in respect of processes to be filed in the court. Learned Counsel must bear in mind and 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, PAGE| 13 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. (Nig.) Ltd, v. Bourdex Ltd. (1990) 3 NWLR (Pt.138) 3 80 & 389 and many others. Secondly, documentary evidence it is settled, is the best evidence. See the case of The Attorney-General, Bendel State & 2 Ors. v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.37) 547 at 565. In the case of FSB International Bank Ltd, v. Imano (Nis.) Ltd. (2000) 11 NWLR (Pt.679) 620 at 637; (2000) 7 SCNJ. 65, this Court – per Achike, JSC, (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 Panama Incorporation (Owners of Vessel “M.V. Star Tulsa”) v. Shell Petroleum Development Corporation of Nig. Ltd. (2002) 2 SCNJ.102 at 118. (2002) 2 SCNJ. 102; 2002 3SCM and Chief Fubara & ors. Chief Minimah & Ors. (2003) 5 SCNJ. 142 at 168, (2003) 9SCM 173 just to mention but a few. This is because, there is the presumption of its genuineness, although this PAGE| 14 is rebuttable. See the case of Alhaji Nuhu v. Alhaji Osele (2003) 18 NWLR (Pt.852) 251 at 272; (2003) 12 SCNJ. 158 at 172. 2003 12scm 253 Again, a court is entitled to look at the contents of its file or Records and refer to it in consideration ofany matter before it. See the cases of West African Provincial Insurance Co. Ltd, v. Nigerian Tobacco Co. Ltd. (1987) 2 NWLR (Pt.56) 299 at 306; Osafile v. Odili Ltd. (1990) 3 NWLR (Pt.37) 130; (1990) 5 SCNJ. 118; Chief Asbaisi & Ors. v. Ebikorofe & Ors. (1997) 4 NWLR (Pt.502) 630 at 648; (1997) 4 SCNJ. 147 at 160; Agbohomovo & 2 Ors. v. Eduyegbe & 6 Ors. (1999) 3 NWLR (Pt.594) 170; (1999) 2 SCNJ. 94 citing two other cases therein and Jikantoro & 6 Ors. v. Dantoro & 6 Ors. (2004) 5 SCNJ. 152 at 177 2004 5scm 08 – per Edozie, JSC, just to mention but a few. See also Section 74/75 of the Evidence Act. In the circumstances of the above established law, I will therefore, treat or deal with the said Issue ONE of the Appellants together with the lone issue of the 1st and 2nd Respondents. I have earlier in this Judgment, reproduced the said Consent Judgment. No. 1 thereof states, “That the Agreement dated 30th day of November, 1992 and supplemental Agreement dated 1st day of December, 1992 “is (sic) between Plaintiffs and the 2nd Defendant (i.e. the 2nd Respondent) and are binding”. (the 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. PAGE| 15 Also settled, is that an Agreement is binding only on the parties thereto and not on third parties. See the case of W.D.N. Ltd, v. Oyibo (1992) 5 NWLR (Pt.239) 77 at 100 – 101 C.A. Thus, if and where there is any disagreement as to what is or are the term or terms of an Agreement on any particular point, the authoritative and legal source of information for the purpose of resolving the disagreement, is of course, the written Agreement executed by the parties. So said this Court in the cases of Union Bank of Nigeria Ltd, v. Sax (Nig.) Ltd. & Ors. (1994) 9 SCNJ. 1 at 12 and Mrs. Layode v. Panalvina World Transport Mg. Ltd. (1996) 7 SCNJ.l at 14-15 citing the cases of Olaloye (Mrs.) K Balogun (Madam) (1990) 5 NWLR (Pt.148) 24; (1990) 7 SCNJ. 205 and Union Bank of Mg. Ltd. & Prof. Ozisi (1994) 3 NWLR (Pt.333) 385: (1994) 3 SCNJ, 42. See also the case of Alhaji A. Baba v. Nigerian Civil Aviation Training Centre & Anor. (1991) 5 NWLR (Pt.192) 388 (1991) 7 SCNJ. 1. As a matter of fact, Section 132 of the Evidence Act states that only admissible evidence of a contract, is the contract itself although the Section, recognizes exceptions. See the case of Arjay Ltd. & 2 Ors. v. Airline Management Support Ltd. (2003) 7 NWLR (Pt.820) 577: (2003) SCNJ. 149 at 169, (2003) 5 SCM 17 At page 105 of the Records, the learned Judge in his said Ruling, stated inter alia, as follows: “The basis of the Consent Judgment is the Agreement freely entered into by the judgment creditor and the judgment debtor (2nd Plaintiff and 2nd Defendant). In the Consent Judgment the 2nd Plaintiff is to be paid 35% share of the cheque that was still being expected by the 2nd defendant as at 1/11/96, the date the Consent Judgment was entered for the parties. The sums were not paid to the judgment creditor. They ought to be paid. Accordingly the 5th Garnishee, the Fidelity Union Merchant Bank Ltd. is hereby ordered to pay the sum of N775,990.20 to the judgment creditor Ganishor forthwith”. At page 291 of the Records, the court below, rightly in my respectful view, identified the “central issues in the appeal” – i.e. PAGE| 16 “the different interpretations which the judgment/debtors and the judgment creditors gave to the Consent Judgment given by Famakinwa, J. on 1-11-96”. It is pertinent for me to observe, that the court below, identified this fact at page 293 of the Records where the following appear, inter alia: “As I said earlier, the 2nd defendant debtor paid to the 2nd judgment creditor the sum of N110,296.50 out of the sum of N14,572,275.66 paid to it on 28-2-97. On 7-10-97, the sum of N71,162, (sic) (169) 943.32 was paid to the 2nd judgment/creditor…..” It then posed the question thus: “The question that arises for consideration is – Did paragraph 4 of the Consent Judgment above apply to the payment of N71,162 (sic) 943.32 such that one could hold that by the force of the judgment, 2nd judgment debtor was bound to pay the 2nd judgment creditor the sum of N24,909,480.11 representing 35% of the payment? and it answered thus: “I think not”. It then stated inter alia, as follows: “The words of the Consent Judgment clearly speak for themselves. It was not for the court below to alter or vary them even if in the light of disputations before it, it thought that the parties might have intended something other than was recorded in the consent Judgment. ………..”. This last sentence, in my respectful view, was not so or true and it was unfair to the learned trial Judge.

SC. 216/2006