ASO MOTEL LTD & ANOR v. SULEIMAN & ORS (2020)

ASO MOTEL LTD & ANOR v. SULEIMAN & ORS

(2020)LCN/14080(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, March 04, 2020

CA/K/284/2011

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Between

1. ASO MOTEL LIMITED 2. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LTD APPELANT(S)

And

1. MRS. RISIKAT SULEIMAN 2. AREWA HOTELS (DEVELOPMENT) LIMITED 3. ONWARD FISHERIES LIMITED 4. MR. ABDULWAHAB SALAUDEEN RESPONDENT(S)

RATIO

WHETHER OR NOT TEH ACT OF A SUBSIDIARY COMPANY CAN BE INPUTED TO THE PARENT COMPANY

See Union Beverages Ltd vs. Pepsi Cola Industrial Ltd. (supra) at pages 172-173, where the Apex Court held:
‘’Generally, the act of a subsidiary company cannot be imputed to the parent company nor can the act of parent company be imputed to the subsidiary company. Each of the four Defendants/Respondents was a corporate body having its own legal personality separate and different from the others. Each of them was capable of suing or being sued in its own name. There was no legal basis for suing the 1st Respondent for what the 4th Respondent had done. It is otherwise if one of them acts as a servant or an agent of the other but that was not the case in the present circumstances. Consequently, it could properly be said that there was no nexus between the Appellant and the 1st Respondent or a nexus between the Appellant and the 4th Respondent on the basis of the affidavit and the documents attached to it…” (Words underlined for emphasis)

In Port Harcourt Refining Company Ltd vs. Imouh Okoro (2010) LPELR-486 (CA) this Court held that a subsidiary company is one which is subordinate and under the control of its parent company. A subsidiary company is one that is controlled by another. Thus, the subsidiary company is an agency of the holding company while the relationship between a holding company or corporation is apposite to agency. See also FBIR vs. Halliburton (W.A) Ltd. (2014) LPELR-24230 (CA). PER HUSSAINI, J.C.A.

DUTY OF THE COURT

But a Court has the duty to consider every material point raised by a party and decide on it. Adeogun vs. Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Okomalu vs. Akinbode (2006) 4 SC (Pt. 1) 19, 33-34; Brawal Shipping (Nigeria) Ltd vs. F. I. Onwadike Co. Ltd (2000) 6 SCNJ 508, 522. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The 1st Respondent was the plaintiff at the trial High Court. She commenced the suit with a Writ of Summons but under the Undefended List with leave of the Court first sought and granted. However, on the application of the 1st Appellant, then the 1st defendant, vide the Notice of intention to defend the suit, the matter was transferred to the general cause list. The trial Court further granted the defendants, now the Appellants, leave to join the 3rd and 4th Respondents herein, as 1st and 2nd third parties to the suit. Parties filed and exchanged pleadings thereafter, hence, the case at the trial Court was heard on the basis of the processes listed below, namely:
(1) The amended Writ of Summons and the amended statement of claim (see pages 111-117), of the record of appeal wherein the 1st Respondent claimed the reliefs as follows:
(a) The sum of N5,506,200.00 (Five Million, Five Hundred and Six thousand, Two Hundred Naira) being the unpaid balance of money for the various quantities of chicken, fish and turkey supplied to the defendants by the Plaintiff between the year 2002 and 2003 at the

instance of the defendants.
(b) An interest on the sum of N5,506,200.00 at the rate of 10% per annum from the date of Judgment plus interest and cost until the whole debt is paid.
(c) Cost of the action.
(2) Statement of defence of the Appellants dated the 28th June, 2006. See pages 89-93 of the record of appeal.
(3) Third party Notice dated the 7th June, 2006. See pages 83-84 of the record of appeal.
(4) 1st and 2nd Third Party Reply to the 1st and 2nd defendants statement of defence. See pages 99-102 of the record of appeal.
(5) 3rd defendant’s/2nd Respondent’s statement of defence dated 10th November, 2006 at page 124 of the record.
(6) Plaintiffs/1st Respondent’s Reply to the 1st and 2nd defendants statement of defence. See pages 95-98 of the record of appeal.

As indicated before, the claim was denied vide the joint statement of defence of the 1st and 2nd Appellants. The case thus proceeded into hearing on basis of those pleadings/processes. The Plaintiff as 1st Respondent called evidence of two(2) witnesses including herself and tendered in evidence a number of documents as Exhibits. The 1st and 2nd

Appellants as defendants also elicited evidence of two(2) witnesses at the trial. The 1st and 2nd Third parties did not call evidence. The case of the 1st Respondent as plaintiff, put briefly is that she supplied various quantities of chicken, fish and turkey to the 1st Appellant between the year 2002 and 2003 but that she was not fully paid, hence the reliefs claimed by her as per the amended statement of claim.

The Appellants contend otherwise that by reason of Exhibit 7, the 1st Respondent had been fully paid all the outstanding debts owed, by reason of the payments made through the 3rd Respondent (the 1st third party). Written addresses were filed and exchanged between counsel but the trial Court in a considered judgment delivered on 7/8/2008 granted all the reliefs sought by the 1st Respondent as Plaintiff against the Appellants and the 2nd Respondent (as Defendant) jointly and severally. Against this Order and Judgment of the trial High Court, the Appellants lodged an appeal to this Court vide the Notice of Appeal containing Nine (9) Grounds and filed on the 6th November, 2008. See pages 286-293 of the Record of Appeal. The Record of

Appeal itself was transmitted out of time on 25th October, 2011 but deemed properly transmitted on the 19th May, 2016. The Appellants and the 3rd and 4th Respondent filed and exchanged their briefs of argument in the following manner:-
(1) Appellants’ brief of argument filed on the 12th September, 2017 was deemed filed and served on the 3rd October, 2019.
(2) Appellants’ Reply brief was filed 15th May, 2018.
(3) The brief of argument for the 3rd – 4th Respondents filed on the 6th December, 2018 was deemed as properly filed and served. In it at pages 4-9, the 3rd – 4th Respondents raised a Preliminary Objection on the Notice of Appeal.

Learned counsel on both sides adopted their respective briefs of argument at the hearing on 23rd January, 2020, including the submission made relative to the competence of the Notice of Appeal. Being a point affecting the exercise of jurisdiction by the Courts, the objection taken has constitutional implications, hence the need to place that question on the front burner and decide it accordingly. This question must be addressed in limine, at the point it was raised. See Goji vs. Ewete

(2001) 15 NWLR (Pt. 736) 273, 280; UBA vs. ACB (2005) 12 NWLR (Pt. 939), 259; Okoi vs. Ibiang (2002) 10 NWLR (Pt. 776) 445, 468. Ngige vs. Obi (2006) 14 NWLR (Pt. 1999) 1, 212.

The competency of the Notice of appeal filed on the 6th November, 2018 has been challenged on the following three (3) grounds, namely:
“i. It is certain and therefore non contestable that the decision of the Court below was delivered on 7th day of August, 2008, and that the 90 days within which to appeal against the said decision, lapsed on 5th day of November, 2008.
ii. The Notice of appeal purporting to challenge the decision of the Court below, was lodged on 6th November, 2008, (without the leave of this Honourable Court of Appeal extending the time within which to appeal) is irredeemably incompetent.
iii. In the circumstance of the incompetence of the said Notice of Appeal, this Honourable Court of Appeal is bereft of the requisite jurisdiction to entertain this appeal, and same is liable to be struck out swiftly.”

It has been argued that by reason of the Notice of appeal being filed on the 6th November, 2008, outside the 90 days time line

allowed by law, against the decision delivered on the 7th August, 2008, rendered the Notice incompetent and the trial Court was divested of Jurisdiction to hear the case, more so that leave of Court was not sought to extend the time within which to file the said Notice of appeal. We were referred to Section 25(2) of the Court of Appeal Act, on the 2(two) broad classifications for the entry of appeals. We were also referred to several decisions including the decisions in Yusuff v. Adewuyi Brothers (1991) 7 NWLR (Pt. 201) 39; Adeleke vs. Oyo State House of Assembly, (2006) ALL FWLR (Pt. 319) 862; Odofin & Anor vs. Agu & Anor (1992) 3 SCNJ 161; OR (1992) 3 NWLR (Pt.229) 350, 373.

Counsel for the 3rd – 4th Respondents argued that the appeal thus, has not been commenced in line with due process of law, citing among others, the decision in Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Macfoy vs. UAC (1961)3 ALL ER 1169, 1172. We were urged to strike out this appeal.

Mr. Yahaya argued per contra in his reply brief and he referred us to Section 24(1)(2) of the Court of Appeal Act, which regulates the time within which to file appeals, depending on

the nature of that appeal. He argued that the law allows for appeals against the final decisions of Courts to be filed within three (3) months, not Ninety (90) days as contended by counsel for the 3-4th to Respondents. He referred us to the decision in Azeez Akeredolu & Ors vs. Lasisi Akinremi (1985) 2 NWLR (Pt. 10) 787, 793 – 794, where it was held that in the computation of the period within which certain acts are to be done, the first day the event took place will not be reckoned with but the last day will be included. Considering the date the judgment appeal against was delivered, being the 7th August, 2008, the Notice of appeal filed on the 6th November, 2008 was filed within time. We were urged to so hold and dismiss the Preliminary Objection.

The provision which regulates the time for filing of Appeals to this Court, is Section 24(1)(2) of the Court of Appeal Act, 2005 not Section 25 as suggested by the learned counsel for the 3rd – 4th Respondents. Section 24 provides thus:
“24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such

manner as may be directed by rules of Court within the period; prescribed by the provision of Sub-Section (2) of this Section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are;-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against”
The instant appeal emanated from the final decision of the High Court of Kaduna State in a civil claim. Being a civil case, appeals if any, can only be filed within a period of three months. Certainly not Ninety (90) days as suggested by learned counsel for the 3rd – 4th Respondents in his brief of argument.
In computing the period of three (3) month, time begins to run from the date, next after the event. The law is that in calculating or computing the time stipulated by statute, as in the Court of Appeal Act, at Section 24(2)(3), generally, the first day of the period will be excluded from

reckoning while the last day will be included except where the last day is a public holiday, in which case, the end of the following day which is not a public holiday will be included, see Ezeigwe vs. Nwawulu (2010) 4 NWLR (Pt. 1183) 159 (SC); Akeredolu vs. Akinremi (supra).
The decision appealed against in this matter was delivered on the 7th August, 2008. The three months period allowed for the filing of appeal begins to run from the 8th August, 2008, which is the date next after the date the judgment appealed against was delivered and ends at midnight of the 7th November, 2008. The appeal in the instant case was filed on the 6th November, 2008. The appeal was filed within the three (3) months period allowed by statute. Accordingly, the Preliminary objection is not well founded. Same is overruled and dismissed.

In pursuit of the main appeal, the Appellants in their brief of argument formulated three (3) issues for determination, namely:
“1. Whether upon a proper evaluation of the evidence led and the state of the pleadings, the trial Court was right when it entered judgment in favour of the 1st Respondent and against the 2nd Appellant

when the contract being enforced was allegedly made with the 1st Appellant. (Ground 1).
2. Whether the failure of the trial Court to determine the Appellants Third Party Notice against the 3rd and 4th Respondents herein did not amount to a denial which has rendered the judgment of the Court a nullity. (Ground 2)
3. Whether the trial Court was right in the face of the state of the pleadings and the evidence led when it held that the 1st Respondent, though a party to Exhibit 4, is not a party to Exhibits 5 and 7 and therefore not bound by them and then proceeded to hold that the 1st Respondent as Plaintiff had established her case and granted to her all the reliefs sought”. (Grounds 3, 4, 5, 6, 7, 8 and 9)

The 3rd – 4th Respondents on their part distilled just one (1) issue at page 9 of their brief of argument, similar to issue No. 2 formulated by the Appellants in their brief. The 3rd – 4th Respondents’ lone issue states thus:
“WHETHER the Appellants were denied right of fair hearing vis-à-vis the questions posed or issues for determination of the issued raised in the Third Party Notice issued at the

instance of the Appellants. (Distilled from Ground 2 of the purported Notice of Appeal).”

I will abide by the Appellants issues Nos. 1 and 3 and the 3rd – 4th Respondents’ lone issue as issue No. 2. Hence, the three (3) issues earmarked for determination are as follows:
“1. Whether upon a proper evaluation of the evidence led and the state of the pleadings, the trial Court was right when it entered judgment in favour of the 1st Respondent and against the 2nd Appellant when the contract being enforced was allegedly made with the 1st Appellant. (Ground 1)
2. Whether the Appellants were denied right of fair hearing vis-à-vis the questions posed or issues for determination of the issued raised in the Third Party Notice issued at the instance of the Appellants. (Distilled from Ground 2 of the purported Notice of Appeal).
3. Whether the trial Court was right in the face of the State of the pleadings and the evidence led when it held that the 1st respondent, though a party to Exhibit 4, is not a party to Exhibits 5 and 7 and therefore not bound by them and then proceeded to hold that the 1st respondent as

plaintiff had established her case and granted to her all the reliefs sought (Grounds 3, 4, 5, 6, 7, 7, 8 and 9).”

Issue No. 1 raises the question whether the trial Court was right to have found against the 2nd Appellant whereas the contract was made with the 1st Appellant only.

In arguing this point we were referred by the learned Appellants’ counsel to the pleadings, particularly 1st Respondent’s amended Statement of claim, the Reply to the Appellant’s Statement of defence and the Statement of defence of the Appellants, wherein it was pointed out that the 2nd Appellant was held out as a holding company and owner of the 1st Appellant. It was argued that in the absence of any evidence of participation of the 2nd Appellant in the contract the 1st Respondent sought to enforce, the judgment against the 2nd Appellant was perverse. Reference was made to evidence of PW1 and Exhibits A1 – A9, B1 – B6 to indicate that none of the local purchase orders relied on by the 1st Appellant was authorised by the 2nd Appellant. He argued that the 1st Appellant was an entity of its own, distinct from the 2nd Appellant, notwithstanding that

the latter was its holding company. In reference therefore to the decision in Salomon vs. Salomon (1897) A.C. 22, 51; Union Beverages Ltd. Vs. Pepsi Cola International Ltd & Ors (1994) 2 SCNJ, 159, 172 – 173, argued that the acts of a subsidiary company cannot be imputed to the parent company and vice versa. Hence the 2nd Appellant cannot be held liable for the debts owed by the 1st Appellant, if any. We were further referred to Marina Nominees Ltd vs. FBIR (1986) 2 NWLR (Pt. 20) 48.

In order to properly appreciate the issue on hand, there is the need to go back to the basis, the pleadings and evidence led by parties on both sides and I want to refer to paragraphs 3, 5 of the amended Statement of claim. I also refer to paragraphs 1, 7, 8, 9, 10, 12, 13 and14 of the Statement of defence and paragraphs 6, 7 and 8 of the Plaintiffs reply to the Statement of Defence. I further refer to the evidence of PW1, PW2, Exhibits A1 – A9, and B1 – B6 and Exhibits 4, 5, 6 and 7, among others.

The long and short of it all is that the 2nd Appellant is the Holding Company of the 1st Appellant which is a subsidiary of the 2nd Appellant. At a point

in time, due to economic downturns, the 2nd Appellant closed down the operations of the 1st Appellant and set up a verification committee to investigate and ascertain the indebtedness of the 1st Appellant and invited among others, the Plaintiff before the Committee to verify her claim. The 2nd Appellant undertook all those activities as the holding company and owner of the 1st Appellant. Therefore by reason of the 2nd Appellant being the holding company and owner of the 1st Appellant as pleaded at paragraph 3 of the amended Statement of claim, paragraphs 7, 8, 9, 10, 12, 13 and 14 of the Statement of Defence, where the 2nd Appellant held itself out as such holding company and owner of the 1st Appellant and indeed evidence supplied to that effect vide PW1, PW2, DW1 and DW2, and Exhibits 4, 5, 7 among others, the 2nd Appellant indeed is/was a party to the contract which the 1st Respondent seeks to enforce against them. In her evidence at page 214 of the record, PW1 unequivocally stated that the 1st and 2nd Appellants are her customers to whom she supplied quantities of chicken, fish and turkey. Granted that the 1st Appellant is/was a corporate body having its

own legal personality as held in Salomon vs. Salomon (supra), the fact still remains that the 1st Appellant is a subsidiary of the 2nd Appellant and thus an agent of the 2nd Appellant in all its undertakings. See Union Beverages Ltd vs. Pepsi Cola Industrial Ltd. (supra) at pages 172-173, where the Apex Court held:
‘’Generally, the act of a subsidiary company cannot be imputed to the parent company nor can the act of parent company be imputed to the subsidiary company. Each of the four Defendants/Respondents was a corporate body having its own legal personality separate and different from the others. Each of them was capable of suing or being sued in its own name. There was no legal basis for suing the 1st Respondent for what the 4th Respondent had done. It is otherwise if one of them acts as a servant or an agent of the other but that was not the case in the present circumstances. Consequently, it could properly be said that there was no nexus between the Appellant and the 1st Respondent or a nexus between the Appellant and the 4th Respondent on the basis of the affidavit and the documents attached to it…” (Words underlined for emphasis)

Exhibit 5 in particular establishes the fact that the 2nd Appellant controlled the affairs of the 1st Appellant. It is the response made by them to the letter in Exhibit 4. Thus, the trial Court below was right when it found against the 2nd Appellant as it did; along with the 1st Appellant. Issue No. 1 thus, is resolved against the Appellants and in favour of the 1st Respondent.

ISSUE NO. 2
Whether the Appellants were denied right of fair hearing vis-a-vis the questions posed or issues for determination of the issues raised in the third Notice issued at the instance of the Appellants? (Distilled from ground 2 of Notice of Appeal).

In addressing this issue, learned

Appellants’ counsel presented the arguments at pages 11-17 of the 1st and 2nd Appellants’ brief of argument particularly the submissions made at pages 13 Para 4.02.6 to 17 Para 4.02.12. The submissions is that issues presented in the third party Notice was not addressed by the trial Court and a pronouncement made on it. This failure it is argued, has denied the Appellants the right to have their case properly considered by the trial Court.

Learned Appellants’ counsel argued that the finding made at page 272 of the record of appeal that the 1st and 2nd third parties who did not lead any evidence in support of their reply to the statement of defence, was not good enough as a finding to resolve all the issues identified in the 3rd party Notice, hence, the case of the Appellants on the third party notice was not fairly treated by the Court below. But a Court has the duty to consider every material point raised by a party and decide on it. Adeogun vs. Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Okomalu vs. Akinbode (2006) 4 SC (Pt. 1) 19, 33-34; Brawal Shipping (Nigeria) Ltd vs. F. I. Onwadike Co. Ltd (2000) 6 SCNJ 508, 522. We were urged to hold that

the Appellants were not accorded fair hearing, hence a retrial of this case be ordered by us.

For the 3rd – 4th Respondents, we were referred to page 274 of the record i.e the finding of Court, based on which their counsel submitted that all the three (3) issues posed in the 3rd party Notice were adequately addressed by the trial Court. We were urged to resolve this issue in favour of the Respondents. The issues presented in the third party Notice are three (3) in number, namely:
(i) That the plaintiff is agent of the 1st third party.
(ii) That for the purpose of the transaction between the plaintiff and the defendant, the plaintiff is one and the same with the 1st and 2nd Third Party and cannot maintain an independent suit against the Defendant.
(iii) Payments made by the defendant to the Third party was payment made also to the plaintiff.
(iv) That the plaintiff is a party to and bound by the agreement between the defendant and the 1st Third Party and signed by the 2nd Third Party. See pages 83-84 of the record of appeal.

Relative to the issues raised in the Third Party Notice, PW1 testified at page 216 of the record,

thus:
“There was no relationship between Onward Fisheries and the Defendants, Abdulwahab Salaudeen and myself were not agents of Onward Fisheries Ltd. I supplied them goods in my personal name…”

At pages 229-232, PW2 testified and said thus:
“There was no contract between Onward Fisheries and Aso Motel. The money paid to me was not meant for Onward Fisheries.”

DW1 spoke under cross-examination and stated thus:
“By Exhibit 1 the 1st defendant appointed the plaintiff as its contractor. Onward Fisheries is not mentioned in Exhibit 1.”
“I do not know whether there was any agreement between Onward and Aso Motel regarding the supply of Fish.”

Given the issues raised in the Third party Notice among others, the trial Court made some significant findings of facts in its judgment particularly at pages 274 – 280 of the record of appeal. These findings of fact in my view are pronouncements on the issues raised in the Third Party Notice and more. It is not correct therefore to suggest as the Appellants did, that the evidence elicited by them on the Third Party Notice was not

addressed or evaluated by the trial Court. I hold to the contrary.

Issue of lack of fair hearing seem to have become the panacea and solution to which counsel these days, fall back to in the hope that by the mere mention of same, the party raising it would have made a case before the Court (sitting on appeal).

The fact is, the Courts confronted with such arguments founded as it were, on non-evaluation and failure of the trial Court to address salient issues raised before it, has no choice but look at the record of appeal before it, so as to ascertain if indeed the complaints highlighted by the party is supported by the record of appeal before the Court. In the case on hand, I found no such support or proof on the pages of the record to suggest that there was failure on the part of the trial Court to address or consider salient issues raised before it. It is for these and other reasons that i also resolve issue No. 2 in favour of the 1st Respondents and against the Appellants.

ISSUE NO. 3
Whether the trial Court was right in the face of the state of the pleadings and the evidence led when it held that the 1st Respondent though a party to

Exhibit 5 and 7 and therefore not bound by them and then proceeded to hold that the 1st Respondent as plaintiff had established her case and granted to her all reliefs sought.

Learned counsel for the Appellant in reliance on Exhibits 4, 5, 6, 7 and 9 among others, has argued in the light of those documents , that the trial Court cannot be correct when it held that the 1st Respondent was not bound by Exhibit 5 and 7. He urged us to fault the finding of the trial Court which granted the reliefs sought by the 1st Respondent as plaintiff at the trial Court.

Exhibits 4, 5 and 7 among others were tendered and admitted through PW1. It is not disputed that Exhibit 4 was authored by both the 1st and 4th Respondents jointly.

Exhibit 5 came from the 2nd Appellant. Exhibit 7 is the agreement which the 1st and 4th Respondents allegedly agreed to accept a lesser sum in satisfaction of a greater sum. However, the contents of the Exhibit 7 is clear and unambiguous. It is an agreement between Aso Motel Kaduna Ltd and Onward Fisheries and signed by the representatives of both organs. The 1st Respondent was/is not a signatory to Exhibit 7

and by this, the 1st Respondent is not part of the agreement or transaction covered by Exhibit 7. Indeed going by the uncontradicted evidence of PW1 at page 216 of the record of Appeal, the 1st Respondent is not an agent of Onward Fisheries and Exhibit 7 confirms it to be so. It is thus inconceivable to suggest as the Appellants contend, that the 1st Respondent is bound by that document. There is no justification in law for this.

In Exhibit 5, the letter of the 2nd Appellant was addressed to the 3rd Respondent, Onward Fisheries, it was not addressed to the 1st Respondent, hence the latter cannot be bound by the content of Exhibit 5. The trial Court rightly held it to be so.

The claim of the 1st Respondent is encapsulated at paragraph 25(a)(b)(c) of the amended Statement of claim earlier reproduced in this discourse. In the bid to prove her case, the plaintiff now 1st Respondent called evidence of PW1 (i.e herself) and PW2. She tendered among others, Exhibits A1-A9, B1 – B6. All these are various local purchase orders by which the 1st Respondent on the orders of the 1st Appellant at different times supplied quantities of chicken, fish and turkey

to the 1st Appellant on their request covered by the period between 2002 and 2003. As at the date the suit was instituted, the Appellant was already indebted to the 1st Respondent in the sum of N5,506,200.00 (Five Million, Five Hundred and Six Thousand, Two Hundred Naira) only. The trial Court gave judgment in favour of the 1st Respondent in that amount with cost assessed at N5,000.00. There is no reason to disturb this finding and order made at the Court below hence issue No. 3 is similarly resolved in favour of the 1st Respondent and against the Appellants. Hence, the appeal on the whole, lacks merit and same is dismissed.

The judgment delivered at the High Court of Kaduna State in Suit KDH/KAD/174/2006 on 7th November, 2008 is unassailable. Same is affirmed. Cost in the sum of N100,000.00 is assessed against the Appellants and for the 1st Respondent. Ordered accordingly.

HUSSEIN MUKTHAR, J.C.A.: I have had the honour to read in advance the judgment just delivered by my learned brother, Saidu Tanko Hussaini, J.C.A. I agree with the reasons therein and the conclusion that the appeal lacks merit and should be dismissed. I therefore dismiss

the appeal and subscribe to other orders made therein.

OBIETONBARA DANIEL – KALIO, J.C.A.: I have read the judgment of my learned brother SAIDU TANKO HUSSAINI, JCA and I agree with the reasoning and conclusions of my lord. By way of a little contribution, I would add that whilst it is the general position of the law that a parent company will not be liable for the acts of its subsidiaries, such a parent company can be liable as held in the case of UNION BEVERAGES LTD V. PEPSI COLA INDUSRIES LTD cited in the lead judgment, where it acts as a servant or agent of its subsidiary. I think that it can also be liable where the parent company and its subsidiary are part of a single business enterprise in that the subsidiary does business under the name of the parent company. All said, I am in total agreement with my lord that the appeal lacks merit. I abide by the order as to costs in the lead judgment.

Appearances:

Abdullahi Yahya, Esq. For Appellant(s)

Tajudeen O. Oladoja, Esq., – for the 3rd – 4th Respondents. For Respondent(s)