THE INCORPORATED TRUSTEES OF THE (NIG.) GOVERNORS’ FORUM v. ASOLUKA & ANOR
(2022)LCN/16440(CA)
In The Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, May 19, 2022
CA/ABJ/CV/860/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
THE INCORPORATED TRUSTEES OF THE NIGERIA GOVERNORS’ FORUM APPELANT(S)
And
1. DR. CHRIS ASOLUKA (Doing Business Under the Name and Style of NIPAL CONSULTING NETWORK) 2. ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON) RESPONDENT(S)
RATIO
WHETHER OR NOT TEH COURT MUST CONSIDER ALL ISSUES PLACED BY PARTIES BEFORE IT
The Court is only bound to consider and determine issues properly placed before it. Facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. Counsel relied on the cases of Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Chukwurah v. Shell Petroleum (1993) 4 NWLR (Pt. 284) 512; West Construction Co. Ltd v. Batalha (2006) 9 NWLR (Pt. 986) 595; Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) 360 at 388; Chidoka v. FCFC (2013) 5 NWLR (Pt. 1346) 144 at 162; EFCC v. Okonkwo (2018) LPELR-46971 (CA); C.N. Okpala & Sons Ltd v. Nigerian Breweries Plc (2018) 9 NWLR (Pt. 1623) 16 at 30 Paras. D-G; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290 at 310 Paras. F-H; Order 15 Rule 2(1) of the High Court of the Fed. Capital Territory, Abuja (Civil Procedure) Rules 2018; Onwuchekwa v. NDIC (2002) 5 NWLR (Pt. 760) 371 at 388 Paras. E-H; Ekwunife v. Wayne (WA) Ltd (1989) 5 NWLR (Pt. 122) 456; Rissalah Printing & Publishing Co. Ltd v. Kassem El-Housseini (2007) LPELR-8543 (CA). PER ADAH, J.C.A.
THE DOCTRINE OF PRIVITY OF CONTRACT
The doctrine of privity of contract is part of our laws. The general principle of law of contract is that a contract affects only parties to it. The doctrine of privity of contract was well explained in the case of Thomas Chukwuma Makwe v. Chief Obanua Nwukor & Anor., (2001) LPELR-1830 (SC). In that case, the Supreme Court held thus:
“It is trite law that as a general rule, a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only the parties to a contract can sue or be sued on the contract and, generally, a stranger to a contract can neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. In the same vein, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or to be sued upon the contract. See Malone v. Laskey (1907) 2 K.B. 141 C.A., Cameron v. Young (1908) A.C. 176 H.L., Beswick v. Beswick (1967) 2 All E.R. 1197, Frederick Oboye Negbenebor v. Edudora Omowunmi Negbenebor (1971) 1 All N.L.R. 210. See too Ikpeazu v. African Continental Bank Ltd. (1965) 1 N.M.L.R. 374 at 379 where this Court per Ademola, C.J.N., put the matter as follows:- “What advantages, if any, can the bank gain from the deed, Exhibit D? Can the bank sue on it as a guarantee? Not being a party to it we are of the view that the bank cannot acquire any rights under the deed. Generally, a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon it” See too Tweddle v. Atkinson 30 L.J.Q.B. 265 and the decision of the House of Lords in Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. (1915) A.C. 847. Without doubt, the above general principle of law admits of a number of exceptions. These include the case of a contract made by an agent on behalf of an undisclosed principal, who again as a general rule, is entitled to sue and liable to be sued on such a contract etc.” PER ADAH, J.C.A.
THE BURDEN OF PROOF IN CIVIL MATTERS
Learned counsel for the Appellant, on these issues submitted that it is quite elementary that in order to succeed, the 1st Respondent who asserts these claims must prove his assertions. This is so by virtue of Section 131 and 133 (1) of the Evidence Act 2011. As such, the legal burden to prove these assertions and/or allegations, which formed the fulcrum or basis for the reliefs sought by him in his writ or statement of claim, rest squarely on him, whether the assertions are positive or negative. Counsel relied on the cases of Aminu v. Hassan (2014) 5 NWLR (Pt. 1400) 287 at P.316; Famuroti v. Agbeki (1991) 5 NWLR (Pt. 189) 1; Olaleye v. Trustees of Ecwa (2011) 2 NWLR (Pt. 1230) 1; Klifco Nig. Ltd v. NSITFMB (2005) 6 NWLR (Pt. 922) 445; Wike Ezenwo Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452 at Pp. 483, 535. Paras. F-H; Okhuarobo v. Aigbe (2002) FWLR (Pt. 116) SC 809 at P. 891, Paras. D-E; Olakunle Elias v. Chief Timothy Omo-Bare (1982) All NLR 75. PER ADAH, J.C.A.
THE CONSEQUENCE OF A PARTY’S FAILURE TO CALL A WITNESS
It is trite that failure to call a witness is detrimental to the case of the party who would have called him to prove a material point but failed to do so. Counsel relied on the cases of Diamond Bank v. Okpala (2016) LPELR-41573 (CA)12-13; Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663; Section 167 (d) of the Evidence Act, 2011; Aeroflot v. UBA Ltd (1986)3 NWLR (Pt. 27) at 198 Para D; 188 SC; Adesina v. Kola (1993) 6 NWLR (Pt. 298) 182; Royal Exchange Assurance Nig. Ltd & Ors v. Aswani Textiles Ind. Ltd (1991) 2 NWLR (Pt. 176) 639; Dunlop Pnuematic Tyre Co. Ltd v. Selfridge Ltd (1915) AC 847 at 853. Learned counsel for the Appellant further argued that a party to a contract cannot enforce it against a person other than a party or parties thereto form fundamental aspects of Nigerian law and jurisprudence. Counsel relied on the cases of Ogundare v. Ogunlowo (1997) 6 NWLR (Pt. 509) 360; Basinco Motors Ltd v. Woermann-line & Anor (2009) 13 NWLR (Pt. 1157) 149 at P. 180, Paras. E-F; Ikpeazu v. ACB (1965) NMLR 374; K.S.O. & Allied Products Ltd v. Kafa Trading Co. Ltd (1996) 2 NWLR (Pt. 436); The Vessel Leona II v. First Fuels Ltd (2002) LPELR-1284 SC; Palmarol Nig. Ltd & Anor v. Asuan (2019) LPELR-47260 CA; Golden Construction Company Ltd v. State Co. Nig. Ltd & Anor (2013) LPELR-22832 CA; Chartered Bank Ltd v. African Trust Bank Ltd & Anor (2005) LPELR-11351 CA. Learned counsel urged the Court to allow the appeal and set aside the judgment of the High Court of the Federal Capital Territory, Abuja. PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on 17th July, 2020 in Suit No. FCT/HC/CV/0217/2017.
The 1st Respondent as claimant instituted this action at the trial Court and claimed against the appellant and 2nd Respondent as Defendants all the sundry reliefs as per the Statement of Claim, thus:
1.) Declaration that the plaintiff is entitled to payment of the agreed consultancy fees owed by the 1st Defendant to the plaintiff for consulting and technical services provided or rendered for strengthening the effectiveness of services delivery capacities of the 1st Defendant and the 774 Local Government Councils of Nigeria, designing the implementation of a holistic reform and funding plan and assisting the 1st Defendant and the said Local Government Councils to reconcile the labyrinthine issues of myriad claims on the Local Governments share of refund from Nigeria’s External Debt Servicing, London/Paris Club Debt Buy Back and Exit.
2.) Declaration that the plaintiff is entitled to the payment of the sum of $6,966,000.00 (Six Million, Nine Hundred and Sixty-six Thousand US Dollars) being agreed consultancy fees due and payable by the 1st Defendant to the plaintiff for the aforesaid consulting and technical services rendered.
3.) Declaration that the plaintiff is entitled to be paid the aforesaid sum from the money had and received by the 2nd Defendant from the Federal Government of Nigeria for legal and consultancy fees in respect of the excess or over deductions made on the account of Local Governments in Nigeria by the Federal Government for the repayment of foreign loans (First line charge)
4.) An Order directing the 2nd Defendant to pay to the plaintiff the aforesaid sum of $6,966,000.00 (Six Million, Nine Hundred and Sixty-six Thousand US Dollars) from the aforesaid monies received from the Federal Government by the 2nd Defendant.
The case of the Plaintiff/ 1st Respondent was that the 1st Defendant/2nd Respondent engaged the plaintiff to provide consulting and technical support services to the 1st Defendant/2nd Respondent and support services to the 1st Defendant and the 774 Local Government Councils in Nigeria. It was also agreed by the plaintiff/1st Respondent and 1st Defendant/2nd Respondent that the agreed consideration for the services rendered shall be paid from the refunds made by the Federal Government for over-deductions on the accounts of States and Local Government by the Federal Government for repayment of foreign loans, otherwise called the Paris Club Debt Refund. The plaintiff/1st Respondent satisfactorily and timeously rendered or provided the agreed services. The 1st Defendant/2nd Respondent immediately thereafter, directed the 2nd Defendant/Appellant to pay to the plaintiff the sum due from the Local Government Councils’ released by the Federal Government to the 2nd Defendant. The plaintiff/1st Respondent averred that the Federal Government, through the Minister of Finance and Central Bank of Nigeria, paid to the 2nd Defendant/Appellant the sum of US $86,546,526.65 (Eighty-Six Million, Five Hundred and Forty-Six Thousand Five Hundred and Twenty Six Dollars Sixty Five Cents) from the first tranche of the Paris Club Debt Refund to settle the consultancy fees of the consultants of the State and Local Government under the mistake of fact the 2nd Defendant had the legal authority to receive the monies on behalf of the 1st Defendant/2nd Respondent and Local Governments in Nigeria. But the 2nd Defendant/Appellant has despite repeated letters of demand, refused, failed and neglected to pay to the 1st Defendant the sum due to the Local Governments and the plaintiff from the money it had and received for consultants.
In proof of his case, the plaintiff/1st Respondent testified as PW1 and tendered several exhibits, which were admitted in evidence and marked as Exhibits A1-A8 and B1-B13 respectively.
The 2nd Defendant/Appellant however, contended that he is not privy to the contract between the plaintiff/1st Respondent and the 1st Defendant/2nd Respondent, and that the President and or Minister of Finance did not direct the Central Bank of Nigeria to pay to the 2nd Defendant that sum US $86,546,526.65 (Eighty Six Million, Five Hundred and Forty-Six Thousand Five Hundred and Twenty Six Dollars Sixty Five cents) relating to the consultancy fees under the Paris Club over-deductions from States and Local Governments Accounts; and that the 2nd Defendant did not any time whatsoever receive any payment from the Central Bank of Nigeria in the sum of $86,546,526.65 (Eighty Six Million, Five Hundred and Forty-Six Thousand Five Hundred and Twenty Six Dollars Sixty Five cents) relating to consultancy fees under the Paris Club over deduction from States and Local Government Account.
The 1st Defendant opened their case and called one witness DW1, Mrs. Evan Enekwe (Director of Legal Services of the 1st Defendant). She confirmed Exhibits B4, B5, B7 and B12 and closed the 1st Defendant closed their case.
In their own defense, the 2nd Defendant/Appellant called one witness Ashishana B. Okauru, DW2, (Director General of the Nigerian Governor’s Forum) (2nd Defendant). He adopted his statement on Oath and tendered several Exhibit, which were admitted in evidence and marked as Exhibit DW1-5.
The parties joined issues and the lower Court on the 17th July, 2020 entered judgment for the 1st Respondent, granting the reliefs sought in the Statement of Claim.
Aggrieved by this decision, the appellant filed this instant appeal vide the Notice of Appeal filed on the 9th October, 2020. There are thirteen grounds of appeal listed in the Notice of Appeal (See page 655 to 75 of the Record.)
The Records of Appeal were transmitted to this Court on 12th October, 2020.
In line with the extant rules and practice of this Court, parties filed and exchanged briefs of argument, which they adopted and relied on as their arguments.
For the Appellant, the following briefs were filed; The Appellant’s Brief of Argument was dated and filed on the 16th December, 2020 but deemed properly filed and served on 16th March, 2021 and the Appellant’s Reply Briefs of Argument to the 1st Respondent was dated and filed on 18th February, 2022 but deemed properly filed and served on 21st February, 2022, the Appellant’s Reply Brief of Argument to the 2nd Respondent was dated 24th June, 2021 and filed 30th June, 2021 but deemed properly filed and served on 1st November, 2021. The 1st Respondent Brief of Argument was dated and filed on 25th March, 2021. The 2nd Respondent’s Brief of Argument was dated and filed 15th March, 2021, but deemed properly filed and served on 16th March, 2021.
In the Appellant’s Brief of Argument, four issues were formulated for determination. They are:
1. Whether the trial Court was right in holding that the consultancy agreement between the 1st and 2nd Respondents, i.e. Exhibit A5 is not illegal and ineffective in law and whether the Exhibit ought to be voided or rendered unenforceable. (Ground 12 of the Notice of Appeal).
2. Whether upon a proper construction of the contents of Exhibits A4, A5, Exhibits B4-B11 and Exhibit DW5, devoid of the extraneous evidence of the Respondents, the Appellant was in receipt of Local Government Council’s share of the External Loan/Paris Club Debt Refund and/or share of the Federation Accounts (FAAC) to justify or warrant the trial Court’s holding that the 1st Respondent had proved his entitlement to the reliefs sought against the Appellant. (Grounds 1, 2, 3, 4, 6, 10 and 13 of the Notice of Appeal).
3. Whether the trial Court was right in finding that in view of Exhibit DW5 and the evidence of DW2, the funds released to the Appellant were meant for distribution between the States and Local Governments. (Grounds 5 of the Notice of Appeal).
4. Whether having regards to the facts and circumstances of this case, the principle of money had and received applied in favor of the 1st Respondent against the Appellant, and if not, whether the doctrine of privity of contract does not avail and shield the Appellant from any liability arising from Exhibit A5 and/or in this case. (Ground 7, 8, 9 and 11 of the Notice of Appeal).
The 2nd Respondent in his Brief of Argument adopted the issues formulated by the Appellant for the determination of this appeal. While the 1st Respondent formulated three issues for the determination of this appeal, thus:
1. Whether having regards to the pleadings and evidence led, the trial Court was right in holding that the Appellant did not plead and prove that the contract between the plaintiff/1st Respondent and the 1st Defendant/2nd Respondent is illegal and unenforceable. (Ground 12 of the Notice of Appeal).
2. Whether having regards to the pleadings, evidence led and the law, the principle of money had and received enured in favor of the plaintiff/1st Respondent against the Appellant. (Grounds 7, 8, 9 and 11 of the Notice of Appeal).
3. Whether having regards to the pleadings and evidence led, the trial Court was right in holding that the Plaintiff/1st Respondent established entitlement to the reliefs sought in the suit. (Grounds 1, 2, 3, 4, 5, 6, 10 and 13 of the Notice of Appeal).
I shall adopt the four issues formulated by the Appellant for consideration of this appeal. The four issues cover all the issues formulated by the other parties in their respective briefs. I start with issue one thereof.
Issue One:
This issue is – whether the trial Court was right in holding that the consultancy agreement between the 1st and 2nd Respondents, i.e. Exhibit A5 is not illegal and ineffective in law and whether the Exhibit ought to be voided or rendered unenforceable.
Learned counsel for the Appellant submitted that the mode of payment inserted in Clause 7 (i) of Exhibit A5 renders the entirety of the agreement illegal, void and unenforceable in law. This, counsel submitted is clearly so having regard to the fact that by agreeing to use funds standing to the credit of the 774 Local Government Councils share of the Federation Account to settle their private contract, that directly determined, albeit through a mere contract relationship, the distribution of any amount standing to the credit of those Local Government Councils within the States from the Federation Account and thereby flagrantly infringed on the provisions of Section 162 (1) and (8) of the Constitution (as amended) and had thereby performed a constitutional sacrilege. An aberration. Counsel relied on the cases of Federal Republic of Nigeria v. Osahon (2006) 5 NWLR (Pt. 973) 361 at P.436; Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at P. 412; Balonwu v. Gov of Anambra State (2009) 18 NWLR (Pt. 1172) 13 at Pp. 43, Paras. B-C; 47-48, Paras. G-B; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at Pp. 590 Paras. G-H, 697-698 Paras. H-B; Pharma-Deko Plc v. F.D.C Ltd (2015) 10 NWLR (Pt. 1467) 225; Onyiuke v. Okeke (1976) 10 NSCC 146 at P. 150; Alao V. A.C.B. Ltd (1998) 2 SC 179; (1998) 3 NWLR (Pt. 542) 339 at P.355 Paras. E-G; Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) 755 at P. 770; Herman v. Jeuchner (1885) 15 QBD 561 at P. 563; IN RE Robinson’s Settlement (1912) 1 CH 717 at P. 725; NNPC v. Lutin (2006) 2 NWLR (Pt. 965) 506 at P. 538, Para. B; Egerton v. Earl Brownlow (1853) 4 HL CAS 1 at P. 196; Janson v. Drieftontein Consolidated Mines Ltd (1902) AC 484 at P. 491, HL; Thirlwell v. Oyewunmi (1990) 4 NWLR (Pt. 142) 384 at P. 402; Ukuta v. Alliance Int. (Nig.) Ltd (1992) 8 NWLR (Pt. 259) 374 at Pp. 380-381; Elder v. Auerbach (1950) 1 KB 359; George & Ors v. Dominion Flour Mills Ltd (1963) 1 All NLR 71; Ekwunife v. Wayne (W/A) Ltd (1989) 5 NWLR (Pt. 1222) 422 at P. 450; CITEC International Estates Ltd V. E. Int’l Inc. (2018) 3 NWLR (Pt. 1606)332 SC; Corporate Ideal Ins. Ltd v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165 SC; Olowu v. Building Stock Ltd (2018) 1 NWLR (Pt. 1601) 343 SC. Learned counsel for the Appellant argued that the trial Court in this case abdicated its duty and refused to declare the contract embodied in Exhibit A5 illegal or contrary to public policy. The learned trial Judge made this refusal simply on ground that the Appellant did not plead the ground of illegality in its Statement of Defence. Counsel relied on the cases of Harold Sodipo v. Lemninkainen (1986) 1 NWLR (Pt. 15) 220 at P. 233 and Cain v. Burns 2 131 CAL. 2D 439, 280 P.2D 888 (1995) at 442, 280 P. 2D at 890.
In response, learned counsel for the 1st Respondent submitted that parties and the Court are bound by their pleadings and facts not pleaded goes to no issue and should be ignored or discountenanced, even if it was elicited under cross-examination.
The Court is only bound to consider and determine issues properly placed before it. Facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. Counsel relied on the cases of Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Chukwurah v. Shell Petroleum (1993) 4 NWLR (Pt. 284) 512; West Construction Co. Ltd v. Batalha (2006) 9 NWLR (Pt. 986) 595; Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) 360 at 388; Chidoka v. FCFC (2013) 5 NWLR (Pt. 1346) 144 at 162; EFCC v. Okonkwo (2018) LPELR-46971 (CA); C.N. Okpala & Sons Ltd v. Nigerian Breweries Plc (2018) 9 NWLR (Pt. 1623) 16 at 30 Paras. D-G; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290 at 310 Paras. F-H; Order 15 Rule 2(1) of the High Court of the Fed. Capital Territory, Abuja (Civil Procedure) Rules 2018; Onwuchekwa v. NDIC (2002) 5 NWLR (Pt. 760) 371 at 388 Paras. E-H; Ekwunife v. Wayne (WA) Ltd (1989) 5 NWLR (Pt. 122) 456; Rissalah Printing & Publishing Co. Ltd v. Kassem El-Housseini (2007) LPELR-8543 (CA).
Learned counsel for the 1st Respondent submitted that the Appellant is not a party to the contract between the 1st and 2nd Respondent, the Appellant cannot raise a defence of illegality founded on the contract between the Respondents or seek to declare the said contract illegal. Counsel relied on the cases of Opara v. Omolu (2000) 12 WRN 42; EFCC v. Okonkwo (2018) LPELR-46971 (CA); Gana v. SDP (2019) LPELR-47153 (SC); Amobi v. Nzegwu (2013) LPELR-21863 (SC); First Bank of Nigeria Plc v. Ozokwere (2014) 3 NWLR (Pt. 1395) 439.
Learned counsel for the 2nd Respondent submitted that from the tenor of the said Clause 7 (i) of Exhibit A5, he submitted that it is at the stage when the Local Governments have received their shares (into their own private Local Governments Accounts) of money in their respective State Joint Local Government Accounts from their shares of the External Loan/Paris Club Refund and/or from their share of the Federation Account Accounts (FAAC) that each Local Government is now required to make a contribution of an annual fee Nine Thousand Dollars (USD9,000.00) OR (12) twelve monthly installments of US$750 (Naira Equivalent) for the payment of the 1st Respondent. The agreement of the parties did not state that this process was going to be by-passed. The clause was already clear enough as to where the payment of the 1st Respondent was going to come from and when. If after so contracting and in reality such payment was not feasible, it was the responsibility of the 1st Respondent to go extra mile including an action at law, to get his money. That does not therefore mean that his contract was illegal. Counsel relied on the cases of Onyiuke III v. Okeke (1976) LPELR-8039 (SC), P. 9-10 Paras. B-A; Palmarol (Nig.) Ltd & Anor v. Asuan (2019) LPELR-47260 Pp. 21-23. Paras. F-E; Total (Nig.) Plc v. Ajay (2003) LPELR-6174 CA. Pp. 21-38, Paras. D.A.
Learned counsel for the Appellant in their Reply Brief to the 1st Respondent brief of argument submitted that ex facie illegal same automatically becomes void for all purposes even with pleading or particularizing it and the Court will not lend its weight to a contract that is ex facie illegal. Counsel relied on Aghedo v. Adenomo (2018) 13 NWLR (Pt. 1636) Pg. 264 at 303, Para. A; Agip Nig Ltd v. Agip Petroli Int’l (2010) 5 NWLR (Pt. 1187) 254 at 412; A.I.C Ltd v. NNPC (2005) LPELR-6 (SC); Onyiuke III v. Okeke (1976) 3 SC (Reprint) 1 at 6-7; A.G. Federation v. A.G. Abia State (No. 2) (2002) 6 NWLR (Pt. 764) 542 at 802-803, Paras F-F; Adebo v. Omisola (2005) 2 NWLR (Pt. 909) Pg. 149 Pp. 177; Corporate Ideal Insurance Limited v. Ajakuta Steel Company Limited (2014) 7 NWLR (Pt. 1405) Pg. 165 Pp. 211; Malami v. Ohikhuare (2019) 7 NWLR (Pt. 1670) 132 Pp. 179 Paras. D-F; Thompson v. Akingbehin (2021) 16 NWLR (Pt. 1802) 283, Pp. 307 Paras. B-C; Yankey v. Austin (2021) 1 NWLR (Pt. 1757) 227 Pp. 249 Paras. F-H; Union Bank of Nigeria Ltd v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127; F.A.T.B. Ltd v. Partnership Investment Co. Ltd (2003) 18 NWLR (Pt. 851) 1 at 74 (SC); Otigbah v. Uwanaka (2020) 16 NWLR (Pt. 1749) 1 Pp. 21-22 Paras. G-A.
Learned counsel for the Appellant in their Reply Brief to the 2nd Respondent’s brief of argument submitted that the entire Exhibit A5, especially its Clause 7(i) is illegal, void and against public policy. That by the clear and unambiguous provisions of Section 162 (6) and (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which was heavily relied upon by the 2nd Respondent, it is crystal clear that All ALLOCATIONS accruable to the 774 Local Government Areas in Nigeria from the Federation Account (FAAC) and the Government of a State is first paid into an account designated as “State Joint Local Government Account”, out of which distribution to the various Local Government Councils in a State is then effected on such terms and in such manner as may be prescribed by the House of Assembly of the State. Counsel relied on the cases of A.G. Federation v. Abubakar (2007) All FWLR (Pt. 375) Pg. 405 at Pg. 548 Paragraphs C-E; Alhaji Abba Mohammed Sani v. The President Federal Republic of Nigeria Army & Anor (2020) LPELR-50990 (SC) at Pg. 22; The Nigeria Army v. Sgt. Asanu Samuel & Ors., (2013) LPELR-20931 (SC) at Pg. 13; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at Pp. 590 Paras. G-H, 697-698 Paras. H-B; Odogwu v. Ilombu (2007) 8 NWLR (Pt. 1037) 488 at Pp. 515- 516; Pharma-Deko Plc v. F.D.C. Ltd (2015) 10 NWLR (Pt. 1467) 225; Marwa & Ors v. Nyako & Ors (Supra); Lawal (Obobahinn of Ihima) & Ors v. Ohida & Ors (2009) LPELR-8372 (CA); Longe v. FBN (2010) 6 NWLR (Pt. 1189) 1 at 36 Para. E; Palmarol (Nig.) Ltd & Anor v. Asuan (2019) LPELR-47260 (CA); Total (Nig.) Plc v. Ajayi (2003) LPELR-6174 CA; Ibrahim v. Judicial Service Committee, Kaduna State & Anor., (1998) LPELR-1408 (SC); AG Federation & Ors v. Abubakar & Ors (2007) LPELR-3 (SC); Knight Frank & Rutley (Nig.) & Anor v. AG Kano State (1998) LPELR-1694) (SC); Mohammed v. Klargester (Nig.) Ltd (2002) LPELR-1897 (SC); Oluwatuyi & Anor. v. Owojuyigbe & Anor (2014) LPELR-23529 (CA); Wuyah v. Jama’a LG Kafanchan (2011) LPELR-9078 (CA); Egonu v. Egonu (1978) 12 SC 111; Sagay v. M.N.I (1977) 5 SC 143; African Continental Seaways v. Nigerian Dredging Roads & General Works Ltd (1977) 5 SC 235.
On this issue, the parties have gone into a laborious and lengthy arguments on the legality or otherwise of the consultancy agreement between the 1st and the 2nd Respondents. The agreement was tendered as Exhibit A5. The contention is that clause 7(1) of the said Exhibit A5 renders the whole agreement of the 1st and 2nd Respondents illegal, void and unenforceable in law. Let us carefully look at Exhibit A5 and focus on clause 7 to know whether the agreement between the 1st and 2nd Respondents violates any constitutional provision.
Exhibit A5, the agreement is at page 44 (A-F) of the Record of Appeal. Clause 7 is at page 44D. Clause 7 (1) provides as follows:
7) The Consultants/Transaction Advisers shall be entitled to fees as follows:
i) The Project Cost of the Consultancy Services for H-RAP: the designing and Implementation of H-RAP will be for a one-year period for ALGON and the entire 774 Local Governments. An annual fee of Nine Thousand Dollars (USD9,000.00) or twelve (12) monthly installments of USS750 (Naira equivalent) per Local Government Council shall be paid from the Local Government Councils’ Share of External Loan/Paris Club Debt Refund and/or from their share of Federation Account (FAAC). Agreed Out of Pocket Expenses for other additional assignments to complement H-RAP shall be reimbursed in line with the award letter.
In the Statement of Claim of the 1st Respondent before the trial Court, the core claim therein is summed up in paragraphs 6, 7, 8 and 9 as follows:
6. The Plaintiff and the 1st Defendant in February, 2017 executed a formal agreement for the provision of technical advisory services and transaction management supported etc by the Plaintiff to the 1st Defendant and the 774 Local Government Councils in Nigeria. The said agreement dated 17/02/2017, is hereby pleaded.
7. In keeping with the said contract between the plaintiff and the 1st Defendant, the Plaintiff satisfactorily and timeously rendered or provided the agreed consultancy, technical advisory and transaction management services. Within the agreed period of time, the Plaintiff successfully completed the milestones embedded in the contract. The 1st Defendant had by a special resolution expressed gratitude to the Plaintiff for services rendered. The said special resolution is hereby pleaded.
8. By the aforesaid contract, the Plaintiff is entitled to be paid the sum of $6,966,000.00 (Six Million, Nine Hundred and Sixty-Six Thousand US Dollars) for services satisfactorily provided or rendered. The plaintiff is entitled to be paid the said sum from refunds made by the Federal Government for over deductions on the accounts of States and Local Governments by the Federal Government for repayment of foreign loans (First line charge).
9. It is a fundamental term of the contract between the plaintiff and the 1st Defendant that since the said services rendered by the plaintiff was for the benefit of the 1st Defendant and the 774 Local Government Councils, the fees of the Plaintiff shall be paid from the Local Governments’ share of the refunds by the Federal Government for the said debt services first line charges/deduction.
The entire relationship between the 1st and 2nd Respondents which has produced this claim is as per Exhibit A5. This contract as in the said exhibit is copied into the Record of Appeal. See page 44 (A-F) of the Record. The contract sum which the 1st Respondent claims is $6,966,000.00 (Six Million, Nine Hundred and Sixty-Six Thousand US Dollars).
The agreement which is Exhibit A5 is between the Association of Local Governments of Nigeria (ALGON) – the 2nd Respondent and the 1st Respondent, NIPAL Consulting Network.
Let me emphasis again the undeniable fact that the 774 Local Government Councils in Nigeria and the Appellant are not privies to the contract in Exhibit A5. The doctrine of privity of contract is part of our laws. The general principle of law of contract is that a contract affects only parties to it. The doctrine of privity of contract was well explained in the case of Thomas Chukwuma Makwe v. Chief Obanua Nwukor & Anor., (2001) LPELR-1830 (SC). In that case, the Supreme Court held thus:
“It is trite law that as a general rule, a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only the parties to a contract can sue or be sued on the contract and, generally, a stranger to a contract can neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. In the same vein, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or to be sued upon the contract. See Malone v. Laskey (1907) 2 K.B. 141 C.A., Cameron v. Young (1908) A.C. 176 H.L., Beswick v. Beswick (1967) 2 All E.R. 1197, Frederick Oboye Negbenebor v. Edudora Omowunmi Negbenebor (1971) 1 All N.L.R. 210. See too Ikpeazu v. African Continental Bank Ltd. (1965) 1 N.M.L.R. 374 at 379 where this Court per Ademola, C.J.N., put the matter as follows:- “What advantages, if any, can the bank gain from the deed, Exhibit D? Can the bank sue on it as a guarantee? Not being a party to it we are of the view that the bank cannot acquire any rights under the deed. Generally, a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon it” See too Tweddle v. Atkinson 30 L.J.Q.B. 265 and the decision of the House of Lords in Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. (1915) A.C. 847. Without doubt, the above general principle of law admits of a number of exceptions. These include the case of a contract made by an agent on behalf of an undisclosed principal, who again as a general rule, is entitled to sue and liable to be sued on such a contract etc.”
From the facts and the circumstances of this case, it is my firm belief that the 774 Local Government Councils in Nigeria and the Appellants are not privies to the contract between the 1st and 2nd Respondents. It will therefore be grave injustice to be coerced in an unorthodox manner to bear the responsibility or the burden that is not theirs to bear. One should not be allowed to rob Peter in order to pay Paul.
Under our Democratic Constitution, which is the 1999 Constitution of Nigeria as amended, Section 7 (1) and (3) expressly provide as follows:
7. (1) The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.
…
(3) It shall be the duty of a local government council within the State to participate in economic planning and development of the area referred to in Subsection (2) of this Section and to this end an economic planning board shall be established by law enacted by the House of Assembly of the State.
The Constitution clearly guarantees the system of Local Government by democratically elected local government councils. Each council is empowered to navigate and cater for its own economic planning and development. There is no provision in the constitution or the laws where the accounts and the economic plans of the local government councils are consigned to any organization or authority other than the Local Government Councils. There is no law also authorizing the 2nd Respondent ALGON to run the Local Councils either by itself or to run the Councils through consultants or their agents. It follows therefore, without any iota of doubt that the 2nd Respondent ALGON has no power to enter into any agreement to bargain away the fund of the local councils. The fund of each of the 774 Local Councils are meant to be administered and spent by their respective councils. The 2nd Respondent ALGON cannot under any guise bargain away the statutory allocation or the fund of or meant for the local councils. Furthermore, there is no evidence of any resolution of any of the 774 Local Government Councils in the Federation appointing the 1st and 2nd Respondents and their agents as consultants. It is therefore, incredible and unthinkable that the 1st and 2nd Respondents can sit somewhere and negotiate contracts as narrated in this case to yoke and plough the funds of the 774 Local Government Council in the Federation as imagined in the instant case. The clause of payment for the contract the 2nd Respondent had with the 1st Respondent is indeed illegal, null and void and not capable of being enforced. This issue is accordingly resolved in favour of the Appellant.
Issues Two Three & Four:
These issues are – whether upon a proper construction of the contents of Exhibits A4, A5, Exhibits B4-B11 and Exhibit DW5, devoid of the extraneous evidence of the Respondents, the Appellant was in receipt of Local Government Council’s share of the External Loan/Paris Club Debt Refund and/or share of the Federation Accounts (FAAC) to justify or warrant the trial Courts holding that the 1st Respondent had proved his entitlement to the reliefs sought against the Appellant;
Whether the trial Court was right in finding that in view of Exhibit DW5 and the evidence of DW2, the funds released to the Appellant were meant for distribution between the states and Local Governments; and
Whether having regards to the facts and circumstances of this case, the principle of money had and received applied in favor of the 1st Respondent against the Appellant, and if not, whether the doctrine of privity of contract does not avail and shield the Appellant from any liability arising from Exhibit A5 and or in this case.
Learned counsel for the Appellant, on these issues submitted that it is quite elementary that in order to succeed, the 1st Respondent who asserts these claims must prove his assertions. This is so by virtue of Section 131 and 133 (1) of the Evidence Act 2011. As such, the legal burden to prove these assertions and/or allegations, which formed the fulcrum or basis for the reliefs sought by him in his writ or statement of claim, rest squarely on him, whether the assertions are positive or negative. Counsel relied on the cases of Aminu v. Hassan (2014) 5 NWLR (Pt. 1400) 287 at P.316; Famuroti v. Agbeki (1991) 5 NWLR (Pt. 189) 1; Olaleye v. Trustees of Ecwa (2011) 2 NWLR (Pt. 1230) 1; Klifco Nig. Ltd v. NSITFMB (2005) 6 NWLR (Pt. 922) 445; Wike Ezenwo Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452 at Pp. 483, 535. Paras. F-H; Okhuarobo v. Aigbe (2002) FWLR (Pt. 116) SC 809 at P. 891, Paras. D-E; Olakunle Elias v. Chief Timothy Omo-Bare (1982) All NLR 75.
Learned counsel for the Appellant submitted that the 1st Respondent in the course of his evidence in chief, boasted that he “satisfactorily provided the agreed services” stipulated in Exhibit A5, id est- enabling inter alia the 774 Local Government Councils have direct access to “Local Government Councils’ share of External Loan/Paris Club Refund”, but was not paid his fees for services rendered because his fee or the funds from which his fee was to be settled was paid to the Appellant under a mistake of fact when the Federal Ministry of Finance directed the Central Bank of Nigeria to pay legal and consultancy fees to the Appellant. Counsel relied on the cases of UBN Ltd v. Ozigi (1994) 3 NWLR (Pt. 333) 385; Owoniboy Tech. Services Ltd v. Union Bank Plc (2003) 15 NWLR (Pt. 844) 545; Katto v. CBN (1999) 5 NWLR (Pt. 607) 390 at P. 405, Paras. D-F; Savannah Bank Plc v. Alh Sani Ibrahim (2000) 6 NWLR (Pt. 662) 585; Olanrewaju Comm. Services Ltd v. Sogaolu (2015) 12 NWLR (Pt. 1473) 311, at 325, Para. G, 321 Para C. Appellant’s counsel further submitted that where a document, Exhibit A5 in this case, has succinctly captured the clear and unambiguous intention of the 1st and 2nd Respondents, the Court with due respect has no other duty to discharge in respect of same that to apply the terms as clearly entered into by the parties in the circumstance of the case. We contended that any derogation or detraction from the express terms of Exhibit A5, is bound to fail. Counsel relied on the cases of Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550 at P. 583, Paras. E-G, D-E; Evbuomwan v. Elema (1994) 6 NWLR (Pt. 353 638 at P. 650; Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) at P. 514; Sona Breweries Plc v. Peters (2005) 1 NWLR (Pt. 908) 478; Dantata v. Dantata (2002) 4 NWLR (Pt. 756) 144; M.V. Cecilie Maersk & Ors v. Winline (Nig.) Ltd (2015) LPELR-24582 (SC) Page 16-17, Paras. F-B; Atolagbe v. Shorun (1985) LPELR-592 (SC); Mazang v. Mashinkpen & Anor (2018) LPELR-46144 (CA); Ibama v. SPDC (Nig.) Ltd (2005) LPELR-1381 (SC); Ogundepo & Anor v. Olumesan (2011) LPELR-1297 (SC); Zenith Bank Plc v. John & Ors (2012) LPELR-21295 (CA); Olanrewaju Comm. Services Ltd v. Sogaolu (2015) 12 NWLR (Pt. 1473) P. 311; F.I.B. Plc. v. Pegasus Trading Office (2004) 17 NSCQLR 688 at 677; Union Bank of Nigeria Ltd v. Sax Nig. Ltd (1994) 9 SCNJ 1; Wayne (WA) Ltd v. Ekwunife (1989) 12 SCNJ 99; Alh. Baba v. Nigerian Civil Aviation Training Centre & Anor., (1991) 5 NWLR (Pt. 192) 388; Obikoya v. Wema Bank Ltd (1991) 7 NWLR (Pt. 201) 119; Ogundele & Anor v. Agiri & Anor (2009) LPELR-2328 (SC); Kaydee Ventures Ltd v. The Honourable Minister FCT & Ors. LPELR-1681; Olowu v. Building Stock Ltd (2018) 1 NWLR (Pt. 1601) 343 at P. 398 Paras. D-G; Udeora v. Nwakonobi (2003) 4 NWLR (Pt. 811) 643 at Pp. 654-655 Paras. H-B; Abacha v. Federal Republic of Nigeria (2006) 4 NWLR (Pt. 970) 239.
Learned counsel for the Appellant argued that the 1st Respondent woefully failed to prove his phantom claim at the lower Court and his attempt to rely on PW1’s purported admission (which was vehemently denied) is unhelpful to the declaratory reliefs sought by him at the trial Court. Counsel relied on the cases of Dumez Nog. Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373-374; Kapo & Anor v. Samore & Ors (2018) LPELR-44246 (CA); Ogunyemi & Ors v. Soneye & Anor (2018) LPELR-44877 (CA); Umesie v. Onuaguluchi & Ors (1995) 9 NWLR (Pt. 421) 515; Onovo & Ors v. Mba & Ors (2014) 14 NWLR (Pt. 1427) 391; Emenike v. PDP & Ors (2012) 12 NWLR (Pt. 1315) 556; A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 48 at P. 140, Paras. G-H; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514.
Learned counsel for the Appellant argued that the 1st Respondent in this case, as claimant at the trial Court, alleged that monies meant for him were paid to the Appellant under a mistake of fact. The 1st Respondent did not call any single witness to prove his allegation of mistake of fact, which it alleged were committed by the Federal Ministry of Finance and Central Bank of Nigeria by paying the monies to the Appellant, monies that were meant for him and the 2nd Respondent. It is trite that failure to call a witness is detrimental to the case of the party who would have called him to prove a material point but failed to do so. Counsel relied on the cases of Diamond Bank v. Okpala (2016) LPELR-41573 (CA)12-13; Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663; Section 167 (d) of the Evidence Act, 2011; Aeroflot v. UBA Ltd (1986)3 NWLR (Pt. 27) at 198 Para D; 188 SC; Adesina v. Kola (1993) 6 NWLR (Pt. 298) 182; Royal Exchange Assurance Nig. Ltd & Ors v. Aswani Textiles Ind. Ltd (1991) 2 NWLR (Pt. 176) 639; Dunlop Pnuematic Tyre Co. Ltd v. Selfridge Ltd (1915) AC 847 at 853. Learned counsel for the Appellant further argued that a party to a contract cannot enforce it against a person other than a party or parties thereto form fundamental aspects of Nigerian law and jurisprudence. Counsel relied on the cases of Ogundare v. Ogunlowo (1997) 6 NWLR (Pt. 509) 360; Basinco Motors Ltd v. Woermann-line & Anor (2009) 13 NWLR (Pt. 1157) 149 at P. 180, Paras. E-F; Ikpeazu v. ACB (1965) NMLR 374; K.S.O. & Allied Products Ltd v. Kafa Trading Co. Ltd (1996) 2 NWLR (Pt. 436); The Vessel Leona II v. First Fuels Ltd (2002) LPELR-1284 SC; Palmarol Nig. Ltd & Anor v. Asuan (2019) LPELR-47260 CA; Golden Construction Company Ltd v. State Co. Nig. Ltd & Anor (2013) LPELR-22832 CA; Chartered Bank Ltd v. African Trust Bank Ltd & Anor (2005) LPELR-11351 CA. Learned counsel urged the Court to allow the appeal and set aside the judgment of the High Court of the Federal Capital Territory, Abuja.
Reacting to these issues, learned counsel for the 1st Respondent submitted that the parties filed and exchanged pleadings as stipulated by the Rules of the trial Court. It is settled that the pleadings filed by the parties define and delimit the real issues or matters in controversy in the suit. The parties and the trial Court are bound by the pleadings and evidence led and must be in line with the facts pleaded. Counsel relied on the cases of Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 at 365; Okagbue v. Romaine (1982) 5 SC 133 at 153; Shell BP v. Zipanione (1974) 1 SC 23 at 45; Lokoyi v. Olojo (1983); Bunge v. Governor, Rivers State (2006) 12 NWLR (Pt. 995) 573 at 599-600 Paras. H-B; Taiwo v. Adegboro (2011) NWLR (Pt. 1259) 562 at 583; Okposin v. Assam (2005) 14 NWLR (Pt. 945) 495 at 515-516; Egbunike v. ACB Ltd (1995) 2 NWLR (Pt. 375) 34 at 53; ACB Plc v. Emostrade Ltd (2002) 8 NWLR (Pt. 770) 501 at 516; Bill & Brothers Ltd v. Dantata & Sawoe Construction Co. Nig. Ltd (2015) LPELR-24770 (CA); Akomolafe v. Guardian Press Ltd (2010) 3 NWLR (Pt. 1181) 338 at 351; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 281 Paras. E-H.
Learned counsel for the 1st Respondent submitted that these documents (Exhibits) are documentary evidence which support the case of the plaintiff/1st Respondent as pleaded. The documentary evidence before the trial Court was the best evidence and best proof of the contents of those Exhibits. The Exhibits are best proof of the application to Mr. President for approval of the reimbursement to the States and Local Governments, approval of Mr. President for the said reimbursement payment of 25% of the amount due and payable to the States and Local Governments, payment of 5% out of the sum due to the States and Local Governments to the Appellant’s account with GT Bank Plc and Access Bank Plc. Counsel relied on the cases of Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299 at Paras. B-F; Ogbe v. Asade (2009) 18 NWLR (Pt. 1172) 106 at 131 Paras. G-H Iga v. Amakiri (1976) 11-12 SC 1 at 10-13; Onyenge v. Ebere (2004) 13 NWLR (Pt. 899) 20; Okoroji v. Onwenu (2017) All FWLR (Pt. 871) 1347 at 1368; Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 130 Paras. C-F; Kopek Construction Ltd v. Ekisola (2010) 3 NWLR (Pt. 1182) 618 at 655 Paras. F-G; Alao v. Akano (2005) 11 NWLR (Pt. 935) 160 at 178; Ogolo v. Ogolo (1997) 7 NWLR (Pt. 512) 310; Wuam v. Ako (1999) 5 NWLR (Pt. 601) 150.
Learned counsel for the 1st Respondent further submitted that contrary to the submissions of the Appellant, the 1st Respondent’s action against the Appellant is found or based on the principles of money had and received. It is an equitable remedy employed by the Courts as a perfect instrument to prevent unjust enrichment or unjust benefit. It is an independent cause of action which lies under circumstances where any motion of an actual contract is excluded. Counsel relied on the cases of First Bank of Nigeria Plc v. Ozokwere (2014) 3 NWLR (Pt. 1395) 439; Ozims v. Anoruo (1991) 3 NWLR (Pt. 181) 571; Edilcon (Nig.) Ltd v. UBA Plc (2017) LPELR-42342 (SC); Guardian Newspaper v. Ajeh (2011) 10 NWLR (Pt. 1256) 574; Olorunfemi v. Asho (1999) 1 NWLR (PT. 585)1; Adesina v. Kola (1993) 6 NWLR (Pt. 293) 182 at 201-202. Counsel urge the Honorable Court to dismiss the appeal with punitive costs for being unmeritorious, frivolous, without substance and an exercise in futility.
Learned counsel for the 2nd Respondent argued that the question of whether or not the 1st Respondent satisfactorily performed the terms of the parties’ contract in Exhibit A5 to entitle him to fees is between them, which the 2nd Respondent never disputed in the Court below. It does not lie in the mouth of the Appellant to contend when asked to submit fees meant for Local Government Councils. Where the Appellant came in is that it was having part of the refund money accruing to Local Government Councils, particularly, consultants’ fees which is the nomenclature of the fees the 1st Respondent was entitled to under the Agreement of the parties in Exhibit A5.
Learned counsel for the 2nd Respondent argued that the Court below reading Exhibit DW5 together with other documents admitted in evidence and the facts and circumstances of the case was right in arriving at the conclusion that the money paid to the Appellant in Exhibit B4 was both for it and the consultants of the local governments.
Learned counsel for the 2nd Respondent further submitted that the case before this Court boils down to the interpretation of two documents; Exhibit A5 and Exhibit B4. He submitted that these documents are clear enough for the Court to look at them alone and decide this appeal. But in the event that this Court finds that they are not clear enough, our verbose arguments above will help the Court. That their argument on Exhibit A5 is that there is nothing illegal, void or contrary to public policy about it. And our argument on Exhibit B4 is that it never mentioned that the fees were only for the consultants of the States. Counsel relied on the cases of Metropolitan Estate v. Union Bank (2018) LPELR-43989 (CA); Aeroflot Soviet Airlines v. UBA Ltd (1986) 1 NSCC 698; Oduwobi & Ors v. Barclays Bank D.C.O (1962) LPELR-25108; Akinade v. Nigerian Law School Lagos Campus Staff Co-operative Thrift Society Ltd (2015) LPELR-41705 (CA). Counsel urged the Court to dismiss the appeal for lacking in merit.
Learned counsel for the Appellant in his reply brief to the 1st Respondent brief of argument submitted that the 1st Respondent document frontloaded which can be found which can be found at page 44J of the printed record and which reference was made in paragraph 11 of this statement of claim is clear and unambiguous. The said exhibit states that the sum of USD 68,546,526.65 should be paid to the Appellant; it did not mention the 2nd Respondent with whom the 1st Respondent had contractual obligations. It is our submission that the express mention of one thing is the exclusion of all others not mentioned therein (including the 1st and 2nd Respondents). Counsel relied on the cases Abacha v. Federal Republic of Nigeria (2006) 4 NWLR (Pt. 970) 239 at Pp. 309-310, Paras. H-A; Ojukwu v. Yar’adua (2008) 4 NWLR (Pt. 1078) 435; A.G. Lagos v. A.G. Federation (2014) 9 NWLR (Pt. 1412) 217; Adama v. K.S.H.A (2019) 16 NWLR (Part 1699) Pg. 501 Pp. 529, Paras. F-H; Antonio Oil Co. Ltd. v. Access Bank Plc (2020) 17 NWLR 75 PP. 122-123 Paras. H-A; Orlu v. Onyeka (2018) 3 NWLR (Pt. 1607) 467 Pp. 486-487 Paras. G-B; Lawali v. State (2019) 4 NWLR (Pt. 1663) 457 Pp. 469 Paras. A-B; Agbanimu v. FRN (2018) LPELR-43924 (CA); Ogudo v. The State (2011) LPELR-860 (SC).
Learned counsel for the Appellant in his reply brief to the 2nd Respondent’s brief of argument submitted that the contents of Exhibit DW5 are clear and unambiguous and that there was no need for the convoluted interpretation given to the said document by the 2nd Respondent in its brief. Counsel relied on the cases of Yankey v. Austin (2021) 1 NWLR (Pt. 1757) at 249 Paras. F-H; Anike v. SPDC (Nig.) Ltd (2010) LPELR-11878 (CA); Emeje v. Positive & Ors (2008) LPELR-4102 (CA); Nkwo Market Community Bank (Nig.) Ltd v. Obi (2010) LPELR-2051 (SC); Olufeagba & Ors v. Abdur-rasheem & Ors (2009) LPELR-2613 (SC); Marwa & Ors v. Nyako & Ors (2012) LPELR-7837 (SC); Nkwonta v. Nigerian Gas Co. Ltd & Ors (2010) LPELR-3979 (CA); Oshiomole v. Airhiavbere Maj, Gen (Rtd.) & Ors (2013) LPELR-19762 (SC); Eneoli v. Oraekwe & Ors (2005) LPELR-5404 (CA); Joseph Afolabi v. John Adekunle (1983) 2 SCNLR 141 at 150. Counsel urged this Court to allow this appeal and set aside the judgment of the High Court of the Federal Capital Territory, Abuja.
Under issue one, we had considered the issue of privity of contract in respect of the Appellant and the 774 Local Government Councils in Nigeria. Our conclusion is that there is no privity of contract. That settles the issue of liability of the Appellant to the contract between the 1st Respondent and the 2nd Respondent. The claim of the 1st Respondent at the trial Court was pivoted on the contract between the 1st and 2nd Respondents. Having found that the Appellant and the Local Government Councils were not privy to the contract they cannot in any sense be found liable to any claim that the contract. See the case of Nospetco Oil & Gas Ltd v. Prince Matiluko Emmanuel Olorunnimbe & Ors., (2021) LPELR-55630 (SC), where the Supreme Court held that:
“Basically, privity of contract is the relation between the parties in a contract, which entitles them to sue each other, but prevents a third party from doing so. Thus, the doctrine of privity of contract is all about the sanctity of contract between the parties to it, and it does not extend to others from outside – see UBA Plc v. Jargaba (2007) 11 NWLR (Pt. 1045) 247 SC, wherein this Court held as follows: The doctrine will not apply to a non-party to the contract, who may have to, unwittingly, be dragged into the contract with a view to becoming a shield or scapegoat against the non-performance by one of the parties. Barman Holdings, is a complete stranger in the contract between the appellants and respondents. Barman was never joined as a party… Courts of law do not make orders in vain or in vacuum. Courts Orders affects directly those persons, who have had course to be subjected to the litigation before the Court either directly or by necessary extension”.
Furthermore, the Respondents had argued that the claim against the Appellant was for money had and received. The relief sought against the 2nd Respondent at the trial Court is at paragraph (iii) of reliefs being claimed. The claim in specific terms was framed as follows:
(iii) Declaration that the Plaintiff is entitled to be paid the aforesaid sum from the money had and received by the 2nd Defendant from the Federal Government of Nigeria for legal and consultancy fees in respect of the excess or over deductions made on the account of Local Government in Nigeria by the Federal Government for the repayment of foreign loans (First line Charge).
Under our laws and practice, action for money had and received is not a general claim. it is a claim founded upon principles of equity where the defendant cannot in good conscience hold unto money which has come into his possession. The money could be for a consideration which has failed. A claim which provides a remedy for a case of unjust enrichment or benefit and the claim is aimed at preventing someone from retaining the money which is not legitimately his against his conscience. In the case of Branco & Anor., v. Otegbola (2015) LPELR-41712 (CA), this Court per Dongban-Mensem, JCA, (now PCA) explained the nature of the action for money had and received as follows:
“The Apex Court in the case of Adesina v. Kola (1993) 6 NWLR (Pt. 298) P. 182 at 201 had set out the nature of debt as money had and received as follows: 9. “An action for money had and received would in law lie in the following circumstances: (a) For money paid by mistake; or (b) For money paid upon a consideration which happens to fail; to (c) For money got through imposition, express, or implied; or (d) For money got through extortion, oppression, or undue advantage taken of the plaintiff’s situation.” The Apex Court, per Ogundare, JSC, (OBM) explained that an action for money had and received is in principle one which rests on a promise to pay, either actual or imputed by law. It is one that accrues in circumstances where any notion of an actual contract is excluded. In such circumstances, the law treats the defendant as being in the same position as if he had incurred a debt. (P. 201)”.
A careful look at the claim and all the processes filed in this Court will show clearly that the claim here has no semblance of what is known in law as action for money had and received.
In the instant case, the 1st Respondent/claimant at the trial Court had pleaded in paragraphs 11 to 14 of his pleadings as follows:
11. Following the approval of the President of the Federal Republic of Nigeria, the Minister of Finance in November 2016 directed the Central Bank of Nigeria and the Central Bank of Nigeria did pay to the 2nd Defendant the sum of US$86,546,526.65 (Eighty-Six Million, Five Hundred and Forty-Six Thousand, Five Hundred and Twenty-Six Dollars Sixty-Five Cent) relating to consultancy fees under the Paris Club over deductions from States and Local Governments Accounts. The said letter dated 21/11/2016 from the Minister of Finance to the Governor of Central Bank is hereby pleaded.
12. In December 2016, the Minister of Finance also directed the Central Bank of Nigeria to pay the 2nd Defendant the sum of N18,635,427,311.54 (Eighteen Billion, Six Hundred and Thirty-Five Million, Four Hundred and Twenty-Seven Thousand, Three Hundred and Eleven Naira, Fifty-Four Kobo) representing legal fees under the Paris Club over deductions from States and Local Governments Accounts. The said letter dated 07/12/2016 from Minister of Finance to the Governor of Central Bank is hereby pleaded.
13. The 2nd Defendant, who is not recognized by any law as the Government of any State or Local Government in Nigeria or custodian if the funds of the States and Local Government were paid the aforesaid monies by the Federal Government under a mistake of fact that it had the legal authority to receive the monies on behalf of the 1st Defendant and the Local Governments in Nigeria. In the premises, the 2nd Defendant has had and received the said sum and it was agreed that the said sum shall be used to settle the debts owed consultants i.e those of the State and Local Governments such as the Plaintiff. The Plaintiff hereby plead a letter dated 22/06/2016 from the Chairman of the 2nd Defendant to the Accountant General of the Federation, and letter dated 04/08/2016 from the Accountant General of the Federation to the Chairman of 2nd Defendant.
14. Despite the said release and payment of the aforesaid sums into the GT Bank Plc and Access Bank Plc accounts of the 2nd Defendant by the Federal Government and the request by the 1st Defendant that the 2nd Defendant pay the said sum of US$6,966,000.00 (Six Million, Nine Hundred and Sixty-Six Thousand US Dollars) to the Plaintiff, the 2nd Defendant has failed, refused and/or neglected to make the said payment.
One clear fact in this case is the fact that the money sought to be paid to the 1st Respondent does not belong to the 2nd Respondent nor the Appellant. The money released is the money of the 774 Local Government Councils in the Federation which were created by the Constitution with their capacity to operate their own plans and projects of development. Since the Local Government Councils are not privy to the contract in this case as earlier explained in this judgment, there is no basis for the money claimed under that contract to be paid from the fund of the 774 Local Government Councils of the Federation. The trial Court from the foregoing, is clearly in error in its judgment granting the claim of the 1st Respondent as plaintiff in this case. The evidence before the trial Court never proved that the money involved belonged to the 2nd Respondent who entered the consultancy contract with the 1st Respondent. The order of the trial Court that the claim of the 1st Respondent at the trial Court be granted her is perverse and cannot be sustained.
From the foregoing therefore, I come to the conclusion that all the issues raised in this appeal are resolved in favour of the Appellant. It follows invariably that this appeal has merit. It is hereby allowed. in consequence of this, the judgment of the trial Court in Suit No: FCT/HC/CV/0217/2017, delivered on the 17th day of July, 2020 is hereby set aside.
The 1st Respondent’s case in Suit No: FCT/HC/CV/0217, having not been proved as required by law is hereby ordered dismissed.
The parties are to bear their respective costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I read in draft the judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.
I am in agreement with the reasoning and conclusion reached and abide by the orders made therein. Therefore, the judgment of the trial Court in Suit No: FCT/HC/CV/0217/2017, delivered on the 17th day of July, 2020 is hereby set aside.
I make no order as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I was in conference of the panel of Justices that heard this appeal and I had the privilege of reading in draft, the lead judgment of my learned brother, STEPHEN JONAH ADAH (JCA) just delivered, and it substantially captures all the issues I raised during the conference. I therefore agree with the findings and conclusions reached in the lead judgment that this appeal is meritorious and it is accordingly allowed.
The judgment of the lower Court in Suit No. FCT/HC/CV/0217/2017, delivered on the 17th day of July, 2020 is hereby set aside.
Appearances:
S.I. Ameh, SAN, with, J.S. Okutepa, SAN, Dr. Garba Tetengi, SAN, Olumuyiwa Akinboro, SAN and Z. Akubo Esq. For Appellant(s)
K.C.O. Njemanze, Esq., with him, K.O. Balogun, Esq. and Ramat Oguta, Esq. – for 1st Respondent
O.C. Uju-Azorji, Esq. – for 2nd Respondent For Respondent(s)
