FLOUR MILLS v. BAHSOON & ANOR (2020)

FLOUR MILLS v. BAHSOON & ANOR

(2020)LCN/14471(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/L/1315/2016

Before Our Lordships:

Jamilu Yammama Tukur Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

FLOUR MILLS OF NIGERIA PLC APPELANT(S)

And

1. MAGED BAHSOON 2. LOUBNA BAHSOON RESPONDENT(S)

RATIO

WHETHER OR NOT THE APPELLATE CAN INTERFERE WITH THE FINDINGS OF THE LOWER COURT

I will like to restate the trite principle of law which is to the effect that an Appellate Court will ordinarily not interfere with the findings of fact of the lower Court which had the opportunity of hearing and evaluating the testimony of the witness and ascribing probative value to it except same is perverse and has occasioned a miscarriage of justice. This trite principle of law was stated in the case of Okonkwo & Ors vs. Okonkwo & Ors (2010) LPELR-9357 (SC) in these words:
“The evaluation of evidence is pre-eminently the duty of the trial Court which alone has the singular benefit of seeing and hearing witnesses. An appellate Court which does not enjoy this singular opportunity of seeing and hearing witness would not therefore ordinarily interfere with findings of facts of the trial Court. An appellate Court will therefore only interfere with findings of fact of the trial Court if it is established that the findings are not supported by the totality of evidence on record. The principle has been pronounced upon and applied in numerous cases. See OBODO v. OGBA (1987) 2 NWLR (Part 54) 1; OGBECHIE v. ONOCHIE (1988) 1 NWLR (Part 70) 370; NNAJIOFOR v. UKONU (1985) 2 NWLR (Part 9) 686. This principle of non-interference with findings of a trial Court by an appellate Court is even more stringently applied when the findings are based on credibility or veracity of 10 witnesses. See OKONJI v. STATE (1987) 2 NWLR (Part 53) 659; ONUOHA v. STATE (1989) 2 NWLR (Part 101) 23. On this issue, the statement of Akintan JSC in ALHAJI ABDULKADIR DAN MAINAGGE v. ALHAJI ABDULKADIR ISHAKU GWAMMA (2004) 7 SC (Part 11) 80 relied upon by the respondents is quite apposite. This Court, per Akintan JSC at Page 97 stated: “As already stated above the trial Court accepted the evidence presented by the plaintiff (now respondent) at the trial. The Court of Appeal also did the same. PER TOBI, J.C.A.

WHETHER OR NOT THE EVALUATION OF EVIDENCE IS PRIMARILY THE FUNCTION OF THE TRIAL JUDGE

The law is settled that evaluation of evidence is primarily the function of the trial Judge. Interference by an appellate Court could only occur where and when he fails to evaluate such evidence at all or he fails to do so properly. Where therefore the Court has satisfactorily performed its primary function of evaluating the evidence and correctly ascribing probative value to it, an Appellate Court has no business interfering with its finding on such evidence, see ABISI v. EKWEALOR (1993) 6 NWLR (Part 302) 643; ATOLAGBE v. SHORUN (1985) 1 NWLR (Part 2) 360; OBODO v. OGBA (1987) 2 NWLR (Part 54) 1. Similarly the Supreme Court will not ordinarily disturb concurrent findings of fact made by the High Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or when such findings are perverse…..” As I said the above statement is apposite to the facts and circumstances of this case and I think I should adopt same in its entirety.” PER TOBI, J.C.A.

THE EXCEPTION TO THE GENERAL RULE AGAINST NON-INTERFERENCE OF THE APPELLATE COURT ON THE FINDINGS OF THE LOWER COURT

This, then, is the foundation for the number of exceptions to this general rule against non-interference. For example, one major exception to the said general rule is that, where such findings are in fact inferences from findings properly made, the appellate Court is in as good a position as the trial Court to come to a decision, Ebba v. Ogodo (1984) 1 SCNLR 372; [1984] 4 SC 84, 98-100; Fabunmi v. Agbe (1985) 1 NWLR (pt. 2) 299, 314; Fatoyinbo v. Williams [1956] SCNLR 274;(1955) 1 FSC 87; Ukatta v. Ndinaeze (1997) 4 NWLR (pt. 499) 251, 263. This explains the prescription that an appellate Court will also interfere with findings of fact where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious, Atolagbe v Shorun (1985) LPELR -592 (SC) 31; C-D. Such a perverse finding is a finding of facts which is merely speculative and is not based on any evidence before the Court. It is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge, Iwuoha and Anor v. NIPOST and Anor (2003) LPELR – 1569 (SC) 39-40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (pt. 13) 407.” PER TOBI, J.C.A.

WHETHER OR NOT THE COURT IS TO GIVE LIFE TO THE TERMS OF THE CONTRACT AS AGREED BY THE PARTIES WITHOUT READING MEANING INTO THE AGREEMENT TERMS

The purport of the above clause is very clear and incapable of double interpretation. Like all other agreements, a Court is to give life to the terms of a contract as agreed by the parties without reading meaning into the agreement terms which was not intended by the parties. See Mr. Adedeji vs. Dr Moses Obajimi (2018) LPELR-44360 (SC); Mr Debo O. Enilolobo vs. NPDC Ltd & Anor (2019) LPELR-49512(SC). In Babatunde & Anor vs. Bank of the North Ltd & Ors (2011) LPELR-8249 (SC), the apex Court drove home this point beautifully in these words:
“The law is that written contract agreement freely entered into by the parties is binding on them. A Court of law is equally bound by the terms of any written contract entered into by the parties. Where the intention of the parties to a contract is clearly expressed in a document, a contract agreement; the Court cannot go outside that document to give effect to the intention of the parties. The general principle is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument, Okonkwo v. C.C.B. (Nig.) Plc. (1997) 6 NWLR (pt.507) pg. 48 Dalek (Nig) v. OMPADEC (2007) 7 NWLR (pt.1033) pg.402. U.B.N. Ltd. v. Ozigi (1994) 3 NWLR (pt.333) pg.385 at pg.404, Nneji v. Zakhem Con. (Nig) Ltd. (2006) 12 NWLR (pt.994) pg.297 SC. U.B.N. Ltd. v. Sax (1994) 8 NWLR (pt.361) pg.402.” PER TOBI, J.C.A.

THE RULES TO INTERPRETATION OF A DOCUMENT

The above provision by simple interpretation is not complicated at all. In the circumstance the rules of interpretation that are relevant are the literal rules and the Ejusdem generis rule which means that when general words follow specific words, the general word will be interpreted along the line of the specific word. The law is settled on interpretation. The Court while interpreting any document, the rule to start with is the literal rule of interpretation. This rule means that the words in a document are to be given their ordinary and grammatical meaning. This is based on the principle that to find the intention of anyone, the best place to look at is the language used in the document. A person naturally is presumed to intend what comes out of his mouth. The language used by the parties to the document will be given the literal English or grammatical meaning of the words used. The Court is to give effect to the plain, clear and unambiguous meaning of the words used in the document. See Hon. Ifedayo Abegunde vs. The Ondo State House of Assembly &Ors (2015) LPELR -24588 (SC); Marwa & Ors vs. Nyako & Ors (2012) LPELR-8717 (SC); Dangana vs. Usman (2012) NSCQR Vol 49 2012 p 1064. In Gana vs. SDP &Ors (2019) LPELR-47153 (SC), the apex Court per Kekere-Ekun, JSC puts it succinctly in these words:
“The literal rule of statutory interpretation is that words must be given their plain and ordinary meaning unless to do so would lead to absurdity or injustice. See: Ogbunyiya Vs Okudo (1979) 6 – 9 SC 32; Abegunde Vs Ondo State House of Assembly (2015) 8 NWLR (Pt. 1461) 314 @ 357 A – D; Ahmed Vs Kassim (1958) 3 FSC 51; Olanrewaju Vs Governor of Oyo State (1992) 11 – 12 SCNJ 92.”
Similarly in Dara & Anor vs. Alagboso & Ors (2015) LPELR-25672 (CA), this Court per Agube, JCA held:
“Before delving into the resolution of this issue I may like to recall the dicta – of Obaseki, JSC in the case of Niger Progress Ltd V. North East Line Corporation (1989) 4 S.C.N.J (Pt.II) 232 at 241 and Lafiu Salami V. Chairman, L.E.D.B & Ors. (1989) 12 S.C.N.J 130 at pages 142 – 143 following the earlier Supreme Court cases of Awolowo V. Shagari (1979) 6-9 S.C 51 (1979) N.S.C.C, 87 and Attorney -General, Bendel State V. Attorney General of the Federation and Ors (1982) 3 NGLR 1, (1981) 10 S. C. 1; N.S.C. C. 34; that: “Where words are plain on the face of it, the literal meaning should, in accordance with the cannons of interpretation, be given to it. It is only the words of the statute that can properly convey the intention of the legislature and it is an act of violence to read into statutes the words that are absent from its provisions.” Earlier in 1977, the Supreme Court of yore had made it abundantly clear in the case of Mobil Oil (Nigeria) Ltd V. Federal Board of Inland Revenue (1977) 3 SC 53 at 74 that:- “The general rule for construing a statute has been stated by this Court in a number of cases. The rule is: where the words of a statute are clear the Court shall give effect to their literal meaning. It is only when the literary meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice; Olalere Obadara & Ors. V. The President Ibadan West District Customary Court (1964) 1 ALL NLR 336 and Claude Nabhan V. George Nabhan (1967) ALL NLR 47″. The above Principle of interpretation is what is usually known in legal parlance as the Golden Rule which is applicable to interpretation of statutes as well as subsidiary legislation. Thus, Uwaifo JSC in the celebrated case of Victor Ndoma Egba V. Nnaemeka Chukwuogor & 3 Ors (2004) LPELR -1974 (S.C) at page 13 paras. G – C); while interpreting the words “OR” and “and” as used in Section 3 of Edict NO. 10 of 1970 as enacted by the Military Governor of South Eastern State regarding abandoned property shortly after the civil war, posited after citing, Maxwell On Interpretation of Statutes, 12th Edition, pages 232, 234; John G. Stein & Co. Ltd V. O. Hanon (1965) A.C. 890; and R.V. Oakes (1959) 1 WLR 580; that: “Such interpretation may be quite useful in order to avoid absurd or impracticable results. Short of such dilemma, it is the law that the literal rule is the golden rule method of interpretation when the words of a statute are plain and unambiguous. It is a fundamental rule that such words should be given their ordinary plain meaning. It is not in such circumstances permissible to refrain from its meaning, even though it gives unreasonable or unfair result, and go outside what the words themselves actually convey, in an attempt to consider what other things they ought to be capable of meaning. See African Newspapers Ltd. V. Fed. Republic of Nigeria (1985) 2 NWLR (pt.6) 137; International Bank for West Africa Ltd. V. Imano Const. (Nig) Ltd. (1988) 3 NWLR (pt. 85) 633; Egbe V. Alhaji (1990) 1 NWLR (pt.128) 546 and Ekeogu V. Aliri (1991) 3 NWLR (pt. 179) 25.” PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice O. A. Ogala (Mrs) of the High Court of Lagos State in Suit No. LD/851/CMW/2015 – Maged Bahsoon & Anor vs. Flour Mills of Nigeria Plc delivered on 18/11/2016. The facts before the lower Court according to the Respondents (then Claimants) is that as part of a transaction that resulted in the acquisition of the Appellant (then Defendant at the lower Court) of a beneficial interest in property at 2 Wharf Road, Apapa, Lagos and 311 Apapa Road, Apapa, Lagos, the parties entered into two undated agreements in and around July 2012. Under these agreements, the Respondents agreed to sell their shareholding in a company called Quilvest Properties Limited (‘QPL”), along with QPL’s assets, specifically 2 Wharf Road, Apapa, Lagos and 311 Apapa Road, Apapa, Lagos to New Horizon Flour Mills Limited and the Appellant undertook the performance, on behalf of New Horizon Flour Mills Limited, of the share purchase. The second agreement contained a provision for the holdback sum of N50,000,000.00 (Fifty Million Naira) held back by the Appellant

and payable to the Respondents in the event that no expense is spent by the Appellant in securing the extension of the lease. After series of negotiations, the lease extension was secured from the Railway Property Management Company Limited. After the lease extension was secured, the Respondents through their counsel, wrote to the Appellant claiming the holdback sum of N50,000,000.00 and the Appellant responded by a letter informing the Respondents that same has been expended in the process of securing the lease extension and even more. The bone of contention at the lower Court is that the Appellant expended the holdback sum on purposes unconnected with securing the extension of the lease and as such, they (Respondents) are entitled to the refund of the holdback sum.

After the trial at the lower Court and hearing the submissions of counsel, the learned trial Judge in a considered judgment found on pages 246 – 269 of the record of appeal (pages 1-24 of the judgment) held specifically at page 269 of the records (page 24 of the judgment) thus:
“The Honourable Court having carefully considered the entirety of the facts before it, and finds

that the Claimants have successfully proved their claims against the Defendant on the preponderance of evidence and on the balance of probabilities an therefore now enters judgment against the Defendant as follows:
1. The Defendant shall pay to the Claimants the sum of N50,000,000.00 (Fifty Million Naira) being the sum held back an due to the Claimants in respect of the Share Purchase Agreement between the Claimants and the Defendants.
2. The Defendant shall pay interest on the said sum in (1) above at the rate of 10% per annum from the date of judgment until the entire judgment debt is fully liquidated.
3. The Defendant shall pay cost to the Claimant in the sum of N1,000,000.00.”

The Appellant dissatisfied with the judgment of the lower Court filed this appeal via an amended notice of appeal dated and filed 13/12/2016 but deemed as properly filed and served on 3/10/2017. The amended notice of appeal contains three grounds of appeal which are:
1. The learned trial Judge erred in law when she held that the sum of N102,325,000.00 (One Hundred and Two Million, Three Hundred and Twenty Five Thousand Naira) paid by the Appellant to the

Railway Property Management Company (RPMC) was not an attendant cost to the renewal of the Railway Lease.
2. The learned Trial Judge erred in law when she held that the payment by the Appellant of the “premium” contained in the Revised Statement of Charges was optional.
3. The Court below erred when it awarded N1,000,000.00 (One Million Naira) costs in favour of the Respondents.

The Appellant also filed an additional record of appeal which was deemed on 3/10/2017.

The Appellant’s brief dated and filed on 3/2/2017 was settled by his counsel Abajimi Ayorinde Esq. In the brief, Appellant raised the following issues for determination:
1. Whether or not the learned trial Judge was right to exclude the sums demanded by the RPMC and paid by the Appellant from the ambit of Clause 5.3 of the Holdback agreement?
2. Whether or not the learned trial Judge had any legal basis for finding that the ‘premium’ contained in the Revised Statement of charges was optional.
3. Whether the learned trial Judge was right to award the Respondents costs in the sum of N1,000,000.00 (One Million Naira) in light of the

reliefs sought by the Respondents, their pleadings and the evidence before the Court?

On issue one, it was stated by learned counsel for the Appellant that it was clear from the judgment that the learned trial Judge accepted that the Appellant paid RPMC the sum of N102,325,000.00 (One Hundred and Two Million, Three Hundred and Twenty Five Thousand Naira) demanded by RPMC in the second Approval and the Revised Statement of Charges. It is the submission of counsel that there was no basis upon which the learned trial Judge could have found that payments “related to rent” were excluded from the ambit of Clause 5.3 of the Holdback Agreement. He relied on Union Bank of Nigeria Ltd vs. Ozigi (1994) 3 NWLR (Pt. 333) 385 @ 404 B-C to the effect that where the language of a contract is clear and unambiguous, the Courts must give such words their simple and ordinary meanings. It is the contention of counsel that neither Clause 5.3 nor any other provision of the Holdback Agreement expressly excludes rents from the “attendant fees and costs” referred to in Clause 5.3 which makes it difficult to understand how the learned trial Judge arrived at her

finding that sums related to rent were excluded from the “attendant fees and costs” referred to in Clause 5.3 of the Holdback Agreement. Learned counsel cited Layade vs. Panalpina Word Transport Nigeria Ltd (1996) 6 NWLR (Pt. 456) 544 @ 558 B-C; Unilife vs. Adeshigbin (2001) 4 WLR (Pt. 704) 609 @ 635 H; Chukwumah vs. Shell Petroleum Development Co. Ltd (1993) 4 NWLR (Pt. 289) 512 @ 560 F.

It is the submission of counsel that contrary to the learned trial Judge’s finding, the phrase “attendant fees and costs” was given a wide definition in Clause 5.3 of the Holdback Agreement to include “… other monetary demand (‘Railway Fees’) by the NRC.” It is the further submission of counsel that by this definition, the sum of N102,325,000.00 (One Hundred and Two Million, Three Hundred and Twenty Five Thousand Naira) which was demanded by the NRC (acting through RPMC) falls within the ambit of “… other monetary demand (‘Railway Fees’) by the NRC). Counsel referred this Court to the Black’s Law Dictionary (8th Edition) on the definition of “attendant”,

“cost” and “fees”. It was submitted by learned counsel that there is no doubt that the definition of “cost” is wide enough to cover rental payments as they are amounts paid or charged for the use of property (in this case, the land covered by the Railway Lease). This is more so when such rental payments is accompanied or resulted from the approval of an extension of the Railway Lease. Finally on this issue, it was argued by counsel that the lower Court seemed to have erroneously restricted the scope of Clause 5.3 of the Holdback Agreement to payment of fees for the negotiation of the renewal of the Railway Lease whereas the Holdback Agreement does not contain any provision that restricts the “attendant fees and costs” referred to in Clause 5.3 of the Holdback Agreement to “payments or fees for the negotiation of the renewal of the lease”. It was therefore posited by counsel that it was wrong for the learned trial Judge to import this restriction into the Holdback Agreement especially as it flew in the face of the express provisions of Clause 5.3 of the Holdback Agreement which defined the phrase

“attendant fees and costs” in very wide terms.

On issue two, it was stated by counsel that it is clear from the judgment that the lower Court specifically disregarded the payment by the Appellant of the “premium” of N90,000,000.00 (Ninety Million Naira) demanded by the RPMC in the second Approval and listed as one of the items in the Revised Statement of Charges on the ground that the payment of the premium was optional and that the Appellant made a choice to pay it to RMPC. It was argued by counsel that quite to the contrary, the Second Approval specifically demanded payment of the amount stated in the Revised Statement of Charges without stating that payment of the premium was optional. He urged this Court not to lose sight of the fact that the Second Approval does not in any way render the terms and conditions contained in the First Approval void. He referred this Court to the note on the second page of the First Approval and the use of the word “the whole amount” and submitted that the use of the word strengthens the Appellant’s contention that the payment of the premium by the Appellant was not optional.

He also referred this Court to RPMC’s letter to Quilvest daC page 3 of the additional record of appeal. Counsel submitted that the CW1 testimony at the lower Court was contradictory in that while he accepts that the First Approval neither expressly nor impliedly states that payment of the premium was optional, the understanding of the Respondents was that it was indeed optional and then goes on to accept that this understanding is in conflict with the clear and express terms of the First Approval. Counsel placed reliance on Section 128(1) of the Evidence Act 2011 and Obiazikwor & Ors vs. Obiazikwor & Anor (2006) LPELR-11557 (CA); AG Bendel vs. UBA (1986) LPELR-3163 (SC) in submitting that the First Approval, being a grant or disposition of property, cannot be contradicted, altered, added to or varied by the oral evidence of CW1. It was further submitted by counsel that while the judgment does not state how the learned trial Judge arrived at her finding that the payment of the premium was optional, if the learned trial Judge made the finding on the basis of CW1’s testimony, such a finding would be perverse. He therefore

urged this Court to resolve issue two in favour of the Appellant.

On issue three, the relief sought by the Respondents is essentially a claim for reimbursement for sums expended by the Respondents in the prosecution of the action at the lower Court. It is the submission of counsel that as these sums are capable of being calculated, there are special damages in nature. He relied on British Airways vs. Atoyebi (2014) 13 NWLR (Pt. 1424) 253 @ 289 B-F; Alhaji& Sons Ltd vs. Idris (1999) 6 NWLR (Pt. 606) 330 @ 345-346 H-A; Eagle Super Pack (Nig) Ltd vs. A.C.B. Plc (2006) 19 NWLR (Pt. 1013) 20 @ 56 D-F in submitting that the Respondents neither particularized nor provided any evidence to support the sum they were awarded as costs. Counsel also contended that the Respondents neither claimed the sum of N1,000,000.00 (One Million Naira) they were awarded nor any other sums as costs. Counsel finally submitted that the learned trial Judge was wrong to award the Respondents costs that were claimed on an indemnity basis but neither particularized nor supported with credible evidence. He therefore urged this Court to resolve this issue in favour of the Appellant

and finally urged this Court to allow the appeal.

The Respondents’ brief dated 13/2/2017 and filed on 15/2/2017 was settled by their counsel Babajide Ogundipe Esq. In the Respondents’ brief, learned counsel raised three issues for determination by this Court. The issues are:
1. Was the sum of N102,325,000.00 (One Hundred and Two Million, Three Hundred and Twenty Five Thousand Naira) an attendant cost to the extension of the Railway Lease?
2. Was the payment of the premium requested on behalf of the Nigeria Railway Corporation mandatory to secure the extension of the Railway Lease?
3. Was the High Court Judge entitled to award the Respondents costs in the sum of N1,000,000.00 (One Million Naira)?

On issue one of the Respondents’ brief, it is the submission of counsel that whether or not the lease extension required the payment of any “attendant fees” or “costs” is an issue of fact, and the conclusion of the learned trial Judge that the payment of the sum of N102,325,000.00 (One Hundred and Two Million, Three Hundred and Twenty Five Thousand Naira) was not an attendant cost to the extension of

the Railway Lease was supported by the evidence before her. Counsel posited that the real question is whether the offer for lease extension made the payment of the premium a condition that, if not satisfied, would result in the offer being withdrawn? It is submitted by counsel that the lease extension, either as originally offered, or as re-negotiated by the Appellant, did not require the payment of any “attendant fees” or “costs” by the Appellant and therefore the submissions made on behalf of the Appellant in this regard are wrong and unsupported by evidence. Counsel contended that the Appellant, of its own volition, chose to pay a premium and thereby enjoyed a reduced rent of N6,250,000.00 per annum and the attendant reduction of rent throughout the period of the lease given the lesser sum from which rent revisions would be made. It is the submission of counsel that the grant of the lease extension was not dependent upon the payment of the premium, nor was it an accompanying, consequent or concomitant charge or cost, such as to negate the grant if it were not paid.

Counsel contended that the extension, as against the

Appellant’s contention, was secured by the efforts of the Respondents, through their consultants Messrs. Uduma & Uduma. Also, the payment of the premium was entirely of the Appellant’s own volition as premium was not a condition for the grant of the extension. Counsel finally submitted on this issue that the learned trial Judge was correct in so stating that the lease extension did not require the payment of premium or relate to attendant fees and costs.

On issue two, it is submitted by counsel that from the arguments contained in issue one, there can be no doubt that the payment of the sum of N102,325,000.00 was neither mandatory, nor a condition for the extension of the lease. Counsel argued that the evidence before the Court was clear and the Appellant’s own document confirmed that the payment was in respect of the lease itself and not for the purpose of securing the extension.

On issue three, learned counsel contended that the argument of the Appellant’s counsel that the award of N1,000,000 (One Million Naira) as costs to the Respondents amounts to an award of damages is misconceived and demonstrates either an

unfortunate level of ignorance as to what an award of costs represents or a deliberate attempt to mislead the Court and to mischaracterize the claim for costs. It is the further contention of counsel that while the Respondents are dissatisfied with the decision of the High Court not to award full indemnity costs, the Respondents do not dispute the Court’s power to award costs in the manner that it did. Counsel cited Haco Limited vs. Brown (1973) NSCC 246; Akinbobola vs. Plisson Fisko Limited (1991) 1 NSCC 105 to the effect that the award of costs is a discretionary matter, hence the Respondents have not sought to appeal against the costs order that was made. Counsel relied on Order 49 Rule 1(1) and (2) of the High Court of Lagos State (Civil Procedure) Rules 2012 on the definition of costs. Learned counsel went further to contend that rather than direct an inquiry into the costs incurred by the Respondents, the learned trial Judge made a summary determination and awarded the sum of N1,000,000 as costs as permitted by the rules and hence, the Appellant’s effort to categorize what was the exercise of a judicial discretion as the award of

un-particularized special damages is thoroughly misconceived. In conclusion, it is submitted by counsel that the appeal is totally without merit and should be dismissed with costs.

Learned counsel for the Appellant exercising his right of a reply filed a reply brief dated 10/3/2017 and filed on 13/3/2017 but deemed as properly filed o 3/10/2017. It is the contention of counsel that the statement made by the Respondents to the effect that the letter of 18/2/2014 addressed by the Railway Property Management Company Limited to QPL offering a reduced annual rent of N6,250,000 subject to the payment of a premium in the sum of N99,900,000 is totally false and is designed to mislead this Court; as there was nowhere in the letter where such a statement was made. It is the submission of counsel that the rent of N12,500,000.00 (Twelve Million, Five Hundred Thousand Naira) demanded in RPMC’s letter of 10/4/2014 was not in respect of the renewed lease but in respect of the subsisting lease.

It is submitted by counsel that the provisions of Clause 4.2.2.5 must be read together with the entire provisions of Clause 5 of the same agreement, which deal

specifically with the Holdback sum as reference to “loss” in Clause 4.2.2.5 must be construed as meaning the payment of the “consent fees, legal fees or such other monetary demand (‘Railway Fees’) by the NRC”. He relied on Unilife Dev. Co. Ltd vs. Adeshigbin (2001) 4 NWLR (Pt. 704) 609. It is further submitted by counsel that Clause 5.3 of the Holdback Agreement, which clearly spells out in detail how the Holdback sum is to be treated upon the occurrence of any of the outcomes contemplated by the parties, is a specific provision and consequently takes precedence over Clause 4.2.2.5 which is a general provision. For this position, counsel cited Schroder vs. Major (1989) 2 NWLR (Pt. 101) 1 @ 21. Counsel therefore submitted that the specific purpose of the Holdback sum as reflected in Clause 5.3 should be upheld as it makes specific provisions on how the Holdback sum is to be applied, which also happens to reflects the true intention of the parties. Finally, it is the final submission of counsel that the Appellant has established with credible evidence that it paid the sum of N102,325,000.00 (One Hundred and Two Million, Three

Hundred and Twenty Five Thousand Naira) to RPMC in order to extend the railway lease.

I have gone through the submissions of counsel for both parties and I make bold to say that the issues raised by counsel are substantially the same save for the way they were couched. I will therefore adopt the issues for determination as raised in the Appellant brief of argument in the just determination of this appeal. The law permits me to adopt any issue for determination that will effectively dispose off an appeal. See Ikuforiji vs. FRN (2018) LPELR-43884 (SC); PDP vs. Sherrif & Ors(2017) LPELR-42736 (SC); State vs. Sani (2018) LPELR-43598 (SC). At the risk of sounding repetitive, I will reproduce the issues for determination again, these are:
1. Whether or not the learned trial Judge was right to exclude the sums demanded by the RPMC and paid by the Appellant from the ambit of Clause 5.3 of the Holdback agreement?
2. Whether or not the learned trial Judge had any legal basis for finding that the ‘premium’ contained in the Revised Statement of charges was optional.
3. Whether the learned trial Judge was right to award the Respondents

costs in the sum of N1,000,000.00 (One Million Naira) in light of the reliefs sought by the Respondents, their pleadings and the evidence before the Court?

Having reproduced the issues for determination, I will now go on to consider the issues beginning from issue one but before I do that, I will like to restate the trite principle of law which is to the effect that an Appellate Court will ordinarily not interfere with the findings of fact of the lower Court which had the opportunity of hearing and evaluating the testimony of the witness and ascribing probative value to it except same is perverse and has occasioned a miscarriage of justice. This trite principle of law was stated in the case of Okonkwo & Ors vs. Okonkwo & Ors (2010) LPELR-9357 (SC) in these words:
“The evaluation of evidence is pre-eminently the duty of the trial Court which alone has the singular benefit of seeing and hearing witnesses. An appellate Court which does not enjoy this singular opportunity of seeing and hearing witness would not therefore ordinarily interfere with findings of facts of the trial Court. An appellate Court will therefore only interfere with

findings of fact of the trial Court if it is established that the findings are not supported by the totality of evidence on record. The principle has been pronounced upon and applied in numerous cases. See OBODO v. OGBA (1987) 2 NWLR (Part 54) 1; OGBECHIE v. ONOCHIE (1988) 1 NWLR (Part 70) 370; NNAJIOFOR v. UKONU (1985) 2 NWLR (Part 9) 686. This principle of non-interference with findings of a trial Court by an appellate Court is even more stringently applied when the findings are based on credibility or veracity of 10 witnesses. See OKONJI v. STATE (1987) 2 NWLR (Part 53) 659; ONUOHA v. STATE (1989) 2 NWLR (Part 101) 23. On this issue, the statement of Akintan JSC in ALHAJI ABDULKADIR DAN MAINAGGE v. ALHAJI ABDULKADIR ISHAKU GWAMMA (2004) 7 SC (Part 11) 80 relied upon by the respondents is quite apposite. This Court, per Akintan JSC at Page 97 stated: “As already stated above the trial Court accepted the evidence presented by the plaintiff (now respondent) at the trial. The Court of Appeal also did the same. The law is settled that evaluation of evidence is primarily the function of the trial Judge. Interference by an appellate Court could only occur where

and when he fails to evaluate such evidence at all or he fails to do so properly. Where therefore the Court has satisfactorily performed its primary function of evaluating the evidence and correctly ascribing probative value to it, an Appellate Court has no business interfering with its finding on such evidence, see ABISI v. EKWEALOR (1993) 6 NWLR (Part 302) 643; ATOLAGBE v. SHORUN (1985) 1 NWLR (Part 2) 360; OBODO v. OGBA (1987) 2 NWLR (Part 54) 1. Similarly the Supreme Court will not ordinarily disturb concurrent findings of fact made by the High Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or when such findings are perverse…..” As I said the above statement is apposite to the facts and circumstances of this case and I think I should adopt same in its entirety.”
I will cite one more authority on this principle of law and leave it at that. In Edilcon (Nig) Ltd vs. UBA Plc (2017) LPELR-42342 (SC), the apex Court reiterated this trite principle thus:
“It has long been established that an appellate Court, generally speaking, should not interfere with findings of fact of trial

Courts. The reason is simple. The latter Courts, that is, trial Courts, had the unique opportunity of seeing and hearing the witnesses give evidence. They not only see the witnesses, they equally observe all their habits and mannerisms. These include their demeanour and idiosyncrasies. As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence: competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence. Proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise. That is why the law takes the view that a failure in this regard would warrant the interference of the appellate Court, Adeye and Ors v. Adesanya and Ors [2001] 6 NWLR (pt.708) 1; Olatunde v. Abidogun 18 NWLR (pt. 746) 712; Adeleke v. Iyanda [2001] 12 NWLR (pt. 729) 1; Udo v. CRSNC [2001] 14 NWLR (pt.732) 116; Enilolobo v. Adegbesan [2001] 2 NWLR (pt.698) 611. This, then, is the foundation for the number of exceptions to this general rule against non-interference. For example, one

major exception to the said general rule is that, where such findings are in fact inferences from findings properly made, the appellate Court is in as good a position as the trial Court to come to a decision, Ebba v. Ogodo (1984) 1 SCNLR 372; [1984] 4 SC 84, 98-100; Fabunmi v. Agbe (1985) 1 NWLR (pt. 2) 299, 314; Fatoyinbo v. Williams [1956] SCNLR 274;(1955) 1 FSC 87; Ukatta v. Ndinaeze (1997) 4 NWLR (pt. 499) 251, 263. This explains the prescription that an appellate Court will also interfere with findings of fact where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious, Atolagbe v Shorun (1985) LPELR -592 (SC) 31; C-D. Such a perverse finding is a finding of facts which is merely speculative and is not based on any evidence before the Court. It is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge, Iwuoha and Anor v. NIPOST and Anor (2003) LPELR – 1569 (SC)

39-40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (pt. 13) 407.”

Having laid down the elementary principle of law, I will now go on to consider the issues for determination.

On issue one of the Appellant’s brief, the grouse of the Appellant is that while it is undisputed that the Appellant paid the sum of N102,325,000.00 to RPMC as attendant cost in securing the extension of the lease, the lower Court refuse to accept the payment as falling under the contemplation of attendant fees and costs for which the holdback sum was supposed to be utilized in offsetting.

For an appreciation of the argument of the Appellant counsel, I will reproduce the facts of the case at the lower Court in summary for a better understanding and easy flow of the judgment. The facts at the lower Court in direct relation to this issue are as follows. The Appellant and the Respondents entered into an agreement wherein the Respondents were supposed to secure an extension of a lease from the Railway Property Management Company Limited. The said agreement contained a holdback clause in Clause 5. The Respondents were able

to secure the lease extension claiming that it came at no cost to the Appellant and therefore requested the holdback sum of N50,000,000 from the Appellant. The Appellant on the other hand claimed that the holdback sum and even more was expended in offsetting attendant fees and costs in securing the extension of the lease. The Respondents argued that what the Appellant spent the holdback sum on was not contemplated under the agreement particularly clause 5.3 dealing with attendant fees and costs and as such, the Appellant ought to release the holdback sum to them. This Court has therefore been called upon to decide who is right among both parties, as both of them cannot be right. One has to be right and the other wrong. Where this Court hold contrary to the judgment of the lower Court that the monies expended by the Appellant was in line with securing the lease extension, then the Respondents will not be entitled to the holdback sum.

From the processes and documents before the lower Court and from the record of appeal, certain facts can be gleaned which are admitted as between the parties;
1. That the Appellant and the Respondents entered into an

agreement for the Respondents to secure the extension of a lease from the RPMC.
2. In the said agreement there is a clause referred to as the holdback clause which is clause 5.3 of the agreement which entitles the Appellant to hold back N50,000,000 from the money to be paid representing attendant fees and cost including but not limited to consent fees, legal fees or such other monetary demands made by the NRC.
3. That in the event that the lease extension is secured at no extra cost to the Appellant, the Appellant shall remit the holdback sum to the Respondents.
4. That the Respondents were able to secure the lease extension from RPMC for 21 years.
5. The total amount that the Appellant paid for the lease was N102, 325,000 which had the breakdown as forwarded by the NRC which they settled in full.
6. This amount included the premium sum of N90,000,000.

This is as far as it goes with regards to the facts which both parties concede to. I warn myself that my duty here is not to review the facts but I am stating the facts so that the basis of this judgment can be appreciated. The lower Court has done a good job in making clear the

findings of the Court. Whether I agree with the lower Court on this or the order the lower Court made is not very relevant here now but I must commend the lower Court that it is not mistaken as to the clear finding. I appreciate this. As earlier mentioned, I can only interfere if I find that the finding is perverse that is to say it does not correspond with the evidence before the Court.

The law is settled by a long line of judicial authorities to the effect that undisputed facts need no further proof. See Alahassan & Anor vs. Ishaku & Ors. (2016) LPELR-40083 (SC); Okereke vs. State (2016) LPELR-26059(SC); Akaninwo & Ors vs. Nsirim & Ors (2008) LPELR-321 (SC).

What then was the dispute between the Appellant and the Respondents at the lower Court which has culminated into this appeal? The Appellant has argued that it spent the holdback sum and much more which amounted to N102,325,000 as attendant fees in the whole transaction leading to the lease and therefore the Respondents were not entitled to the holdback sum.

The Respondents who by their counsel negotiated for the lease extension contended that securing the lease extension

came at no extra cost to the Appellant apart from the rent which included the premium and therefore they are entitled to the holdback sum. The Respondents are not disputing the fact that the Appellant spent N102, 325,000 on the lease but that what the Appellant supposedly spent money on cannot be regarded as what was contemplated under attendant fees and costs etc and therefore not anticipated expenses under Clause 5.3 of the agreement.

The lower Court showing the clear appreciation of the issue before it rightly in my view opined that the real issue to handle in the matter was the construction of Clause 5.3 of the agreement. In coming to the conclusion on which of the parties to agree with the lower Court stated that the Respondents secured the extension of the lease. The lower Court in agreeing with the Respondents on pages 264, 266 and 267 of the records (pages 19, 21 and 22 of the judgment) held thus:
“This honourable Court holds that from the evidence before it, the Claimants successfully negotiated the extension of the Railway lease as required by the agreement…The Court has carefully considered the items so listed in the statement of

charges and finds that it is a fact that they are not incidental, attendant or connected to fees/cost charged in relation to the extension of the lease by the Nigeria Railway Corporation … it is thus certain that the attendant fees and cost contemplated by the Hold Back are fees and cost incidental to securing the extension of the lease with Nigeria Railway Corporation and certainly not related to rents payable for the period of the extension….From the facts before the Honourable Court the Defendant was clear about what the charges were for and none of them indicated payments or fees for the negotiation of the renewal of the lease (if any).”

The lower Court was clear and unequivocal as to its position. There can be no double interpretation of the finding of the lower Court. The issue is whether the lower Court is right or wrong. This is what I am to decide on in this issue. The real question is whether the payment made by the Appellant of the sum of N102,325,000 is inclusive of the hold back sum or cover the items stated in Clause 5.3 of the agreement. If it does, I will resolve this issue in favour of the Appellant and naturally against

the Respondents. If on the other hand however, I hold that the payment is not within the scope of Clause 5.3, I will resolve this issue in favour of the Respondents and against the Appellant.

In resolving this issue, one cannot avoid referring to the agreement entered into by parties as it is the relevant document in this instance and the starting point in the resolution of this quagmire. The Holdback Agreement entered into by the parties is found on pages 38 – 44 of the record of appeal. The relevant clause to this appeal which has caused this much dispute is Clause 5 of the agreement. It will not be out of place to reproduce the said Clause 5 for a better understanding.
“5. HOLD BACK
5.1 Pursuant to the provision of Clause 4.2.2.5 above, it is understood that FMN shall hold back the sum of N50,000,000 (Fifty Million Naira) subject to the Vendors’ negotiation of an extension of the Railway Lease with the Nigeria Railway Corporation (“NRC”) within a three (3) year period from Completion (the “Hold Back”).
5.2 The extension contemplated by the Parties under the terms of Clause 5.1 above shall be for

a minimum period of ten (10) years or such further period approved by the NRC.
5.3 Where the Vendors are successful in securing an extension of the Railway Lease as described in Clause 5.1 above, the Parties agree that all attendant fees and costs including but not limited to consent fees, legal fees or such other monetary demand (“Railway Fees”) by the NRC, shall be offset with the Hold Back, provided it is understood that in an event where:
5.3.1 the Railway Fees is less than the Hold Back, FMN shall release the excess sum from the Hold Back to the Vendors;
5.3.2 the Railway Fees exceeds the Hold Back, the Vendors shall consult with FMN with a view to affording FMN an opportunity to negotiate such Railway Fees with the NRC, provided, however, that any amount exceeding the Hold Back amount shall be borne exclusively by FMN and/or the Purchaser;
5.3.3 the extension of the Railway Lease is secured at no cost, FMN shall immediately release the Hold Back to the Vendors.”

The purport of the above clause is very clear and incapable of double interpretation. Like all other agreements, a Court is to give life to the terms

of a contract as agreed by the parties without reading meaning into the agreement terms which was not intended by the parties. See Mr. Adedeji vs. Dr Moses Obajimi (2018) LPELR-44360 (SC); Mr Debo O. Enilolobo vs. NPDC Ltd & Anor (2019) LPELR-49512(SC). In Babatunde & Anor vs. Bank of the North Ltd & Ors (2011) LPELR-8249 (SC), the apex Court drove home this point beautifully in these words:
“The law is that written contract agreement freely entered into by the parties is binding on them. A Court of law is equally bound by the terms of any written contract entered into by the parties. Where the intention of the parties to a contract is clearly expressed in a document, a contract agreement; the Court cannot go outside that document to give effect to the intention of the parties. The general principle is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument, Okonkwo v. C.C.B. (Nig.) Plc. (1997) 6 NWLR (pt.507) pg. 48 Dalek (Nig) v. OMPADEC (2007) 7 NWLR (pt.1033) pg.402. U.B.N. Ltd. v. Ozigi

(1994) 3 NWLR (pt.333) pg.385 at pg.404, Nneji v. Zakhem Con. (Nig) Ltd. (2006) 12 NWLR (pt.994) pg.297 SC. U.B.N. Ltd. v. Sax (1994) 8 NWLR (pt.361) pg.402.”

See Hon. Ifedayo Abegunde vs. The Ondo State House of Assembly &Ors (2015) LPELR -24588 (SC); Marwa & Ors vs. Nyako & Ors (2012) LPELR-8717 (SC); Dangana vs. Usman (2012) NSCQR Vol 49 2012 p 1064. In Gana vs. SDP &Ors (2019) LPELR-47153 (SC), the apex Court per Kekere-Ekun, JSC puts it succinctly in these words:
“The literal rule of statutory interpretation is that words must be given their plain and ordinary meaning unless to do so would lead to absurdity or injustice. See: Ogbunyiya Vs Okudo (1979) 6 – 9 SC 32; Abegunde Vs Ondo State House of Assembly (2015) 8 NWLR (Pt. 1461) 314 @ 357 A – D; Ahmed Vs Kassim (1958) 3 FSC 51; Olanrewaju Vs Governor of Oyo State (1992) 11 – 12 SCNJ 92.”
Similarly in Dara & Anor vs. Alagboso & Ors (2015) LPELR-25672 (CA), this Court per Agube, JCA held:
“Before delving into the resolution of this issue I may like to recall the dicta – of Obaseki, JSC in the case of Niger Progress Ltd V. North East Line Corporation (1989) 4 S.C.N.J (Pt.II) 232 at 241 and Lafiu Salami V. Chairman, L.E.D.B & Ors. (1989) 12 S.C.N.J 130 at pages 142 – 143 following the earlier Supreme Court cases of Awolowo V. Shagari

(1979) 6-9 S.C 51 (1979) N.S.C.C, 87 and Attorney -General, Bendel State V. Attorney General of the Federation and Ors (1982) 3 NGLR 1, (1981) 10 S. C. 1; N.S.C. C. 34; that: “Where words are plain on the face of it, the literal meaning should, in accordance with the cannons of interpretation, be given to it. It is only the words of the statute that can properly convey the intention of the legislature and it is an act of violence to read into statutes the words that are absent from its provisions.” Earlier in 1977, the Supreme Court of yore had made it abundantly clear in the case of Mobil Oil (Nigeria) Ltd V. Federal Board of Inland Revenue (1977) 3 SC 53 at 74 that:- “The general rule for construing a statute has been stated by this Court in a number of cases. The rule is: where the words of a statute are clear the Court shall give effect to their literal meaning. It is only when the literary meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice; Olalere Obadara & Ors. V. The President Ibadan West District Customary Court

(1964) 1 ALL NLR 336 and Claude Nabhan V. George Nabhan (1967) ALL NLR 47″. The above Principle of interpretation is what is usually known in legal parlance as the Golden Rule which is applicable to interpretation of statutes as well as subsidiary legislation. Thus, Uwaifo JSC in the celebrated case of Victor Ndoma Egba V. Nnaemeka Chukwuogor & 3 Ors (2004) LPELR -1974 (S.C) at page 13 paras. G – C); while interpreting the words “OR” and “and” as used in Section 3 of Edict NO. 10 of 1970 as enacted by the Military Governor of South Eastern State regarding abandoned property shortly after the civil war, posited after citing, Maxwell On Interpretation of Statutes, 12th Edition, pages 232, 234; John G. Stein & Co. Ltd V. O. Hanon (1965) A.C. 890; and R.V. Oakes (1959) 1 WLR 580; that: “Such interpretation may be quite useful in order to avoid absurd or impracticable results. Short of such dilemma, it is the law that the literal rule is the golden rule method of interpretation when the words of a statute are plain and unambiguous. It is a fundamental rule that such words should be given their ordinary

plain meaning. It is not in such circumstances permissible to refrain from its meaning, even though it gives unreasonable or unfair result, and go outside what the words themselves actually convey, in an attempt to consider what other things they ought to be capable of meaning. See African Newspapers Ltd. V. Fed. Republic of Nigeria (1985) 2 NWLR (pt.6) 137; International Bank for West Africa Ltd. V. Imano Const. (Nig) Ltd. (1988) 3 NWLR (pt. 85) 633; Egbe V. Alhaji (1990) 1 NWLR (pt.128) 546 and Ekeogu V. Aliri (1991) 3 NWLR (pt. 179) 25.”
The other rules of interpretation will only come into play if the literal rule of interpretation will lead to absurdity.
The provision in the clause is not complicated and therefore the literal rule of interpretation will be appropriate to use except if there is any absurdity arising from same. The interpretation therefore is this. There is agreement between the parties that the Respondents should negotiate the extension of lease with the Nigeria Railway Corporation for not less than 10 years within 3 years. The Appellant is to hold back N50,000,000 to set off all attendant fees and cost including but not

limited to consent fees, legal fees or such other monetary demand. The money held back is to be set off for the items mentioned in Clause 5.3 which are attendant fees and cost not limited to consent fees, legal fees or some other demand made by the NRC. The demand so made must be related to attendant cost and fees. This is based on rule of interpretation that when general words follow specific words, the general word must be interpreted within the context of the specific words. In Gen. Buhari vs. Alhaji Yusuf (2003) 14 NWLR (Pt. 841) 446, the apex Court held:
“Ejusdem generis rule is an interpretative rule which the Court would apply in an appropriate case to confine the scope of general words which follow special words as used in a statutory provision or document within the genus of those special words. In the construction of statutes, therefore, general terms following particular ones apply only to such persons or things as are ejusdem generis with those understood from the language of the statute to be confined to the particular terms. In other words, the general words or terms are to be read as comprehending only things of the same kind as that

designated by the preceding particular expressions, unless there is something to show that a wider sense was intended: See Maxwell on the Interpretation of Statutes, 12th Edn, page 297; Fawehinmi v. Inspector General of Police (2002) 7 NWLR (Pt. 767) 606 at 683.”
Similarly in Ehuwa vs. Ondo State Independent Electoral Commission &Ors (2006) 11-12 S.C 102, the Apex Court also held:
“I think this is where the Ejusdem generis rule should apply. The rule simply means that in interpreting the provisions of a statute, general words which follow particular and specific words of the same nature as themselves take their meaning from those specific words. In the context of the provisions of Section 246 of the Constitution, it is my view therefore that election petitions on Section 246(3) of the Constitution should be presumed to be confined to the election petitions specifically mentioned in Section 246(1)(b) of the Constitution that is to say, decisions of National Assembly Election Tribunals, Governorship and Legislative Houses Election Tribunals.”
The clear meaning therefore is that the hold back sum of N50,000,000 can only be a

set off for fees and cost since specific words prefixing the general word is in relation to cost and fees. This is the interpretation of the main provision of the clause. There is however a proviso. What is the meaning of the proviso which is Clause 5.3.1, 5.3.2 and 5.3.3. By the main clause, the general position is that the N50,000,000 is held back to set off attendant fees and cost. The proviso makes provision for some exceptions to the general provision. Clause 5.3.1 is to the effect that if the Railway fees are less than the held back sum, the balance after removing the Railway fees will be paid over to the Respondents. Clause 5.3.2 is to the effect that if the Railway fees exceed the held back sum, the Respondents will get nothing back from the Appellant. If however the Railway lease is secured at no cost, the Appellant shall immediately release the held back sum to the Respondents. This is the clear interpretation of Clause 5.3 dealing with hold back. The purport of all these is that if the lease was secured at no cost to the Appellant, then the whole of the sum held back will be paid over to the Respondents. If there is some cost then after removing the

cost implication the balance from the N50,000,000 will be paid over to the Respondents. If however the fees or cost is above the held back sum nothing will be paid over to the Respondents. The big question therefore is whether based on the facts before the lower Court, what will be the applicable provision; is it Clause 5.3.1, 5.3.2 or clause 5.3.3? The lower Court held that the applicable provision is Clause 5.3.3.
I have gone through the submissions of both parties and I make bold to say that the bone of contention is what amount to attendant fees and costs in securing the lease extension? In other words, can it be said that the sum of N102,325,000.00 paid by the Appellant to RMPC amount to or include attendant fees and costs? At this stage it is important to know what amount to fees? The Black’s Law Dictionary, 8th Edition on page 647 defines fee as a charge for labour or services. There are different kinds of fees for instance professional fees. The fees paid for filing action is called docket fees. Cost is defined in Black’s Law Dictionary on page 371 as amount paid or charged for something; price or expenditure. The lower Court has held

that from all intent and purpose, the rent paid for the property including the premium cannot qualify as fees and cost anticipated by Clause 5.3.3 of the agreement. In other words, according to the lower Court the demand made by the NRC as shown in the statement of charge cannot qualify as fees or cost. Maybe, it will be appropriate to define what amounts to rent. Rent is defined in the Black’s Law Dictionary on page 1321 as consideration paid usually periodically for the use or occupancy of property. There is clear difference between cost, fee and rent. The hold back will not affect issues related to the rent but rather fees and cost. The implication of all these is that attendant fees and cost which payment will be set off from the held back sum are those related to legal fees, consent fees or other monetary demand related to those items and definitely not demands that relate to the rent. The expenses therefore that the held back sum can set off are those in relation to the costs and fees expended in securing the extension for the lease and not payments made in relation to rent.
The underlining phrase in resolving this issue is an understanding of

the word ‘attendant fees and costs’. The agreement of the parties on paragraph 5.3 of page 41 reads:
“5.3 Where the Vendors are successful in securing an extension of the Railway Lease as described in Clause 5.1 above, the Parties agree that all attendant fees and costs including but not limited to consent fees, legal fees or such other monetary demand (“Railway Fees”) by the NRC, shall be offset with the Hold Back, provided it is understood that in an event where:” Underlined for emphasis.
What then are the items contemplated under ‘attendant fees and costs’. The lower Court in settling what amounts to ‘attendant fees and costs’ held thus:
“It is thus certain that the attendant fees and costs contemplated by the Hold Back are fees and costs incidental to securing the extension of the lease with Nigeria Railway Corporation and certainly not related to rents payable for the period of the extension.”
Learned counsel for the Appellant has argued that there was no basis upon which the learned trial Judge could have found that payments “related to rent” were

excluded from the ambit of Clause 5.3 of the Holdback agreement.
The word ‘attendant’ as used in the context of the agreement of the parties is an adjective which according to the Oxford Advanced Learners Dictionary 6th Edition on page 62 means “closely connected with something that has just been mentioned”. Black’s Law Dictionary 8th Edition on page 137 defined it thus “accompanying; resulting”. To my mind therefore, the phrase ‘attendant fees and costs’ means those fees and costs that are connected and associated with the negotiation of the lease and no further. It therefore means any money expended during the course of the negotiation and as a result of the lease extension. As earlier mentioned, it is a basic rule of interpretation that words must be given their plain and ordinary meaning except where doing so will amount to absurdity and injustice.

At this junction, I will refer to the Revised Statement of Charges sent by RMPC for which the Appellant is claiming to have paid the sum contained therein. The statement of charges found on page 110 of the record of appeal states thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“STATEMENT OF CHARGES
1. Adjusted Rent for the period 1/1/2015-31/12/2015 – N6,250,000.00
2. Premium payable – N90,000,000.00
3. Development Charges (To be advised at the appropriate time
4. Demarcation, Survey, Beaconing & Printing Fees (To be advised at the appropriate time) – N1,700,000.00
5. Estate and Admin charges (25% of Annual Accruable rent) – N3,125,000.00
6. Lease Agreement Preparation Fee – N1,250,000.00
7. Stamp Duty and Lease Registration Fee (To be Advised at the appropriate time) – N
N102,325,000.00

In answering whether the items listed under the Statement of Charges falls under the scope of attendant fees and costs as contemplated by the parties, the lower Court held on page 266 of the record thus:
“The Court has carefully considered the items so listed in the statement of charges and finds that it is a fact that they are not incidental, attendant or connected to fees/cost charged in relation to the extension of the lease by the Nigerian Railway Corporation.”

I have extensively gone through the statement of charges and the agreement of the parties and I agree with

the holding of the lower Court to the extent that items 1, 2, 3, 4 and 5 are not covered or anticipated by clause 5.3 as items that could be set off by the held back sum as they do not fall under the meaning of cost or fees for the securing of the lease. By the rule of interpretation, those items cannot be covered by the expression in the agreement to include “such other monetary demand”. Apart from the rules of interpretation, by simple grammatical meaning the use of the word “such” shows that the monetary demands to be made by NRC to come under Clause 5.3, the demands must relate to consent fees or legal fees or demands so connected. With regards to items 6 and 7, I hold otherwise as from a clear understanding, they do not relate to the payment of rent in respect of the lease.

The Appellant has also argued that the inclusion of the phrase ‘such other monetary demand (‘Railway Fees’) by the NRC’ can be interpreted to include rent payable. On this, I do not subscribe to the interpretation proffered by learned counsel to the Appellant as a clear reading of the wording of the agreement between the parties does

not show that the payment of rent will be captured under the Clause 5.3 as that does not amount to attendant fees and costs in securing the extension of the lease. The payment of rent goes beyond the scope of the lease negotiation and cannot be seen to fall under the realm of attendant fees and costs. It is for this reason that I cannot see my way clear to depart from the finding of the lower Court as regards items 1, 2, 3, 4 and 5. With regards to items 6 and 7, I find that those items are within the anticipation of Clause 5.3; that is to say the sum of N1,250,000 for lease preparation agreement can be set off from the Hold back sum of N50,000,000. There is no amount demanded for item 7. In the light of the above, this issue one is resolved in favour of the Respondent except for the sum of N1,250,000 which is an amount to be set off from the N50,000,000.

On issue two, it is the contention of the Appellant counsel that the learned trial Judge erred when he held that the premium contained in the Revised Statement of Charges was optional and that the Appellant made a choice to pay it to RMPC. The lower Court in deciding this issue held on page 267 thus;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Payment of Rent by the Defendant to the Nigeria Railway Corporation is an obligation it was bound to pay and payment at a premium for the period of extension given was a choice it took, if it had not taken the Premium option, they would have paid just the annual rent which is far less than it paid to the Defendant.”

Having held in issue one that item 2 which borders on the payment of premium does not fall under the scope of attendant fees and costs, I ought not to, as a matter of practice consider this issue but on the merit of the appeal I will consider it.

Appellant’s counsel argued that the payment of the premium was not optional, more so when there was no credible evidence before the lower Court to prove that the payment of the premium was optional. Counsel referred this Court to the last paragraph of the second approval contained on pages 108-110 of the record where it is stated thus:
“If the above is acceptable to you kindly arrange to effect an E-payment of the amount stated in the attached statement of charges into Railway Property Management Company Limited with account details…”

Counsel also made

reference to the first approval letter dated 18/2/2014 contained on pages 61 -63 of the record.

As a precursory, the definition of the word ‘premium’ will not do anyone any harm. According to the Oxford Advanced Learner’s Dictionary 6th Edition on page 916, the word ‘premium’ was defined to mean “an extra payment added to the basic rate”. Merriam Webster defines it as “1a. a reward or recompense for a particular act, b. a sum over and above a regular price paid chiefly as an inducement or incentive, c. a sum in advance of or in addition to the nominal value of something, d. something given free or at a reduced price with the purchase of a product or service.”

Having defined the word ‘premium’, I will now therefore consider the letters of approval sent by the Railway Property Management Company Limited. The first letter of approval found on pages 61 -63 of the record contains the following:
“DESCRIPTION OF PROPERTY: Parcel of Land with Building Thereon
LOCATION OF PROPERTY : Apapa, Lagos
AREA OF LAND : 11,578.18m2
TERM : 21 Years with Effect from 01/01/2015<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ACCRUABLE ANNUAL RENT: N12,500,000.00
PREMIUM PAYABLE: N99.9M (50% of Annual Rent Capitalized for entire Lease Period)
ADJUSTED RENT PAYABLE : N6,250,000.00 Per Annum (50% of the Annual Rent)
REVISION PERIOD: Every 3 years with Effect from 01/01/2014 (On Revision only 50% of the Open Market Rent is Per Annum)
USER CLAUSE : Commercial
VALUE OF DEVELOPMENT : Subject to Valuation.

The interpretation of the above needs no extrinsic material to aid its interpretation. The annual rent payable is at the rate of N12,500,000.00. That is the amount the Appellant ought ordinarily to pay on an annual basis. Then there is the introduction of the premium which is to be paid once at the rate of N99,900,000.00. What this means in simple parlance and interpretation is that, the Appellant is either to pay the sum of N12,500,000.00 as rent annually or choose to pay the premium sum of N99,900,000.00 and get to pay an annual reduced rent of N6,250,000.00 for the entire period of the lease. This position is strengthened with the enclosed statement “50% of Annual Rent Capitalized for Entire Lease Period” coming after the amount of the

premium payable. Going by the definition of ‘premium’, I make bold to say that the reduced annual rent of N6,250,000.00 is an incentive for the payment of the premium sum of N99,900,000.00. The Appellant therefore had the option of paying the premium which means reduced rent at N6,250,000.00 or pay annual rent of N12,500,000.00. The premium paid is therefore rent related and has nothing to do with costs of fees.

Assuming I am to hold that the payment of the premium was not optional, this issue will still be resolved against the Appellant as I had earlier held while considering issue one that item 2 of the Statement of Charges do not fall under the contemplation of attendant fees and costs as the payment of premium is in relation to rent and has nothing to do with fees or cost.

At this junction, let me now address Counsel’s reference to the note on the Second Approval which states thus:
“If the above is acceptable to you kindly arrange to effect an E-payment of the amount stated in the attached statement of charges into Railway Property Management Company Limited with account details…”

The reference of Appellant

counsel to the above mentioned does not in any way remove the payment of the premium from items relating to rent and not falling under the contemplation of the meaning of attendant fees and costs. Going by Appellant’s argument, one seems to wonder how the Appellant came to be paying the reduced annual rent of N6,250,000.00 as against the annual rent of N12,500,000.00. The only safe conclusion is that the Appellant opted to take the option of premium in order to enjoy a reduced annual rent, hence the demand to pay the full amount contained in the Statement of Charges as against the normal annual rent.

With respect to the Appellant’s contention referring to a letter from RMPC dated 7/4/2014 found on pages 3-4 of the additional record of appeal, I cannot help but notice that a breakdown of the fees is attached in which the Appellant is to pay for the 21 years lease. It is clear from the schedule of fees that the Appellant was presented with two options. Option one which contains the premium and option two which does not provide for premium. From all indication, it seems clear that the Appellant went for the option that contains premium as

evidenced from the Statement of Charges.

In the light of the foregoing, I have no hesitation in agreeing with the lower Court and the submission of Respondents’ counsel that the payment of the premium by the Appellant was optional. Issue two therefore is resolved in favour of the Respondents.

Having resolved issues one and two in favour of the Respondents, the question that is now left to be answered is whether the Respondents were entitled to be awarded cost by the lower Court. This now lead me to issue three.

On issue three, it is the contention of learned counsel for the Appellant that since the claim for reimbursement for sums expended by the Respondents in the prosecution of the action at the lower Court are capable of being precisely calculated, they fall under the realm of special damages. This cannot be correct.

I will start by stating the trite principle of law to the effect that the award of cost is within the discretion of a Court and the Appellate Court cannot interfere with the exercise of discretion by the lower Court except it is perverse. See G.K.F. Investment (Nig) Ltd vs. N.I.T.E.L. Plc (2009) LPELR-1294(SC).

But just like every other discretion, such discretion must be exercised judicially and judiciously. See SPDC & Ors vs. Agbara & Ors (2015) LPELR-25987 (SC); Vandighi vs. Hale (2014) LPELR-24196 (CA); Dongari & Ors vs. Sa’anun (2013) LPELR-22084 (CA).
At the lower Court, the Respondents were awarded cost of N1,000,000.00 which did not go down well with the Appellant, hence he is contesting it. In Mekwunye vs. Emirates Airlines (2019) LPELR-46553 (SC), the apex Court per Aka’ahs, JSC held:
“In a civil suit, a successful party is generally entitled to be compensated by way of cost, the amount of which the Court has discretion to determine regardless of whether it was pleaded and/or proved. The fact that the trial Court used the word “legal” to qualify the cost awarded makes no difference whatsoever. The trial Court had discretion to take account of any or all expenses incurred by the appellant in awarding it so long as the rule permits in the instant case. The Federal High Court (Civil Procedure) Rules 2009 applied in awarding cost. Order 25 Rule 2 (1) & (2) provides:- “2-(1) In fixing the amount of costs the principle to be

observed is that the party who is in the right is to be indemnified the expense to which he has been unnecessarily put in the proceedings, as well as compensated for his time and effort in coming to Court. The Judge may take into account all the circumstances of the case. (2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgement or making the order.” In the Book, ‘Civil Procedure in Nigeria, 2nd Edition by Fidelis Nwadialo at pages 879, the Author stated:- “The assessment of costs is a matter in the discretion of the Court of trial but the discretion must be exercised judicially and if not so exercised, the Court of Appeal would be entitled to interfere and set aside an unjustifiable award.” See: Chanrai & Co. Ltd v. Khawam (1965) 1 All NLR 188 at 196 and Nwadialor v. Onyia (1971) 1 UILR 524. The author went further to say at page 880:- “The trial Judge should therefore show for what items he allowed costs and how much was allowed in respect of each. The Court of Appeal is thereby placed in a good position to review the costs if they are challenged on

appeal. Where a trial Court awards costs that are ex facie excessive but does not state his reason for so doing or gives a wrong reason or one for which no valid reason can be seen, the appellate Court may reduce the costs.” See: Wurno v. U.A.C. (1956) 1 FSC 33; Ladega v. Akinbiyi (1975) 2 SC 91.”
I will refer to one more case on this issue. This is the case of G.K.F. Investment (Nig) Ltd vs. Nitel Plc (2009) LPELR-1294 (SC) where the Supreme Court held:
“…costs follow the event and a successful party, is entitled to costs. See the cases of The Queen v. The Governor in Council, Western Region, Ex Parte Kasalu Adenaiya (1962) 1 ANLR 300; (1962) 1 SCNLR 442; Lawal v. Ijale (1967) 5 NSCC 94; Obayagbona v. Obazee (1972) 5 S.C. 241 and Mazin Engineering Ltd. v. Tower Aluminium (Nig.) 38 Ltd. (1993) 6 SCNJ (Pt.11) 176 @ 190 – per Olatawura, JSC (of blessed memory). The award of costs, is within the discretion of the Court and it must be exercised judiciously. See also the case of Mazin Engineering Ltd. (supra); Union Bank of Nig. Ltd. &Anor. v. Nwaokolo (1995) 6 NWLR (pt.400) 127 @ 149; (1995) 4 SCNJ. 93 and Mrs. F. K. Douglas v. Dr. MCA. Peterside

(1994) 3 NWLR (pt.330) 37 @ 52 CA citing some other cases therein, just to mention but a few. By way of emphasis, like the award of general damages, the award of costs, involves the exercise of judicial discretion which is based on settled principles. Award of costs, is not meant or designed to be a bonus to a successful party. My final answer therefore, is rendered in the Affirmative/Positive.” Underlined for emphasis.
Cost follows event and a successful party is entitled to cost. I will refer to the decision of this Court in Tobin vs. Idaibifiberesima & Anor (2019) LPELR-49023 (CA) per Mustapha, JCA:
“It is trite that cost follows event, and Courts are empowered by their respective Rules to award cost; see NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022 (SC); MUDUN & ORS. v. ADANCHI & ORS. (2013) LPELR-20774 (CA) and OLOKUNLADE v. SAMUEL (2011) 17 NWLR (PT. 1276) 290. The award of cost is at the discretion of a Court the only requirement is that such discretion must be exercised judicially and judiciously. A successful party, as in this case is entitled to costs, unless there are special reasons why he should be deprived

of his entitlement, and no such circumstance appears in this case. See ANYAEGBUNAM v. OSAKA (1993) 5 NWLR (pt. 294) p. 449; OBAYAGBONA v. OBAZEE (1972) 5 SC P. 247. Since cost follows events in litigation, a party needs not to even ask for cost before it can be awarded. That is why it is at the discretion of the Court. Whether or not the award of cost is arbitrary is dependent on the peculiarity of each case. The only circumstance under which an appellate Court will interfere with the award or cost is when such award is so high or low. See OGUNSAKIN V. EDU LOCAL GOVT. AREA KWARA STATE & ORS (2011) LPELR -8816 (CA). The Court’s award of cost to the Respondent in this case is completely a matter within the discretion of the trial Court and in the circumstances, this Court sees no need or necessity for disturbing the award.”

In light of the foregoing, I do not find the exercise of discretion of the learned trial Judge injurious to the Appellant as same has not occasioned a miscarriage of justice. It is for this reason I cannot see my way clear to overturn the exercise of discretion of the lower Court. Issue 3 is also resolved in favour of the Respondents.

On a whole, this appeal substantially lacks merit and is dismissed. The judgment of the lower Court delivered by Hon. Justice O.A. Ogala (Mrs) of the High Court of Lagos State in Suit No. LD/851/CMW/2015 – Maged Bahsoon & Anor vs. Flour Mills of Nigeria Plc on 18/11/2016 is hereby affirmed. However as a Court of justice, since I have held that item 6 from the statement of charge is covered by the held back sum, the appropriate order will be to deduct the sum of N1,250,000 from the N50,000,000 held back sum. This means the sum in order one on page 269 of the record (page 24 of the judgment) will now be N48,750,000 payable to the Respondents. This variation of the order is necessary in the light of my finding above.
This appeal lacks merit and it is dismissed.
I award N500,000.00 (Five Hundred Thousand Naira) as cost in favour of the Respondents against the Appellant.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA afforded me the opportunity of reading in draft before today the Judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the Judgment as mine with nothing further to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in its draft form, the lead judgment just delivered by my learned brother, EBIOWEI TOBI, JCA in which he adjudged the instant appeal as lacking in merit, and has consequently dismissed it.

I agree with his resolution of the issues set down by the Appellant and the decisions reached on them.

I abide with the consequential orders made as to costs as well as the sum of N 1,250,000.00 which the Appellant is entitled to retain from the fund held back from the Respondents.
Appeal is dismissed.

Appearances:

BABAJIDE AYORINDE For Appellant(s)

L.O. AKANGBE ESQ. For Respondent(s)