SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF N.Y. ALLAPUTA(2005)

SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF N.Y. ALLAPUTA

(2005)LCN/1693(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of February, 2005

CA/PH/144/2001

RATIO

CONTRACT: THE DOCTRINE OF CONSIDERATION

In Black’s Law Dictionary, Sixth Edition at page 306, consideration is defined as: “The inducement to a contract. The cause, motive, price or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other. Richman v. Brookhaven Servicing Corp … 363 N.Y.S. 2nd 731,733. It is a basic, necessary element for the existence of a valid contract that is legally binding on the parties.” The above is in tune with the opinion of the House of Lords in the case of Dunlop Pneumatic Tyre Company Limited v. Selfridge & CO. Ltd. (supra) at page 85. Therein, the position was put briefly thus: “A second principle is that if a person with whom a contract not under seal has been made is to be able to enforce it, consideration must have been given by him to the promisor.” The same opinion was expressed by our own courts in the cases of Bioku v. Light Machine (supra) and Mrs. D. Udechukwu v. Ngene (supra). Consideration, no doubt, is an essential element of a valid contract and without it, no contract would have been in existence. However, it has now become trite that consideration need not be adequate as long as it has some value in the eyes of the law and flows from the promisee to the promisor. This is because it is the parties who dictate the terms of a contract freely entered into by them. Refer to Royal Exchange Assurance Nig. Ltd. v. Aswani Textiles Industries Ltd. (supra) at pages 666-667 G-A. It must be stressed that it appears that even a gratuitous promise is binding and enforceable as long as it is supported by nominal consideration. The learned authors of Chitty on Contracts (General Principles) 26th Edition, paragraph 165 at page 115 stated the law as follows: “Where an agreement is legally binding on the ground that it is supported by nominal consideration, the doctrine of consideration does not serve its main purpose of distinguishing between gratuitous and onerous promises. But the law has no settled policy against enforcing all gratuitous promises. It only refuses to enforce informal gratuitous promises and the deliberate use of a nominal consideration can be regarded as a form to make a gratuitous promise binding. PER JOHN AFOLABI FABIYI, J.C.A.

JUSTICES

SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria

JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria

Between

SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Appellant(s)

AND

CHIEF N.Y. ALLAPUTA
(For himself, the Amanyanabo of Bonny in Council, Chiefs, Elders and the entire Bonny Kingdom) Respondent(s)

JOHN AFOLABI FABIYI, J.C.A. (Delivering the Leading Judgment): This an appeal against the judgment of Ichoku, the High Court of justice, Port Harcourt, Rivers State of Nigeria on the 29th of January, 2001.
The plaintiff at the trial court and respondent herein filed the writ of summons on 27/11/2000 and placed it on the undefended list. It is extant on page 1 of the transcript record of appeal that the writ was marked as undefended. The claims, against the defendant at the trial court and appellant herein read as follows:
“(i) The sum of N505 Million being money owed the plaintiff by the defendant inclusive of 15% interest on the initial N305 Million from the date it fell due being 24th of December, 1999 till judgment thereafter at 10% on the judgment debt until its satisfaction therefore.
(ii) And subsequently 10% interest on the balance as they shall fall due on the 14/12/2000 and 24/12/2001 until the satisfaction of the debt”?

The writ was verified by an affidavit of 5 paragraphs by the plaintiff on the 27th of November, 2000. On the same date, a motion ex-parte was contemporaneously filed under Order 23 rule 1 of the rules of the trial court praying for an order to enter the suit for hearing on the undefended list and to mark same accordingly. The application was heard on the same date and granted by the learned Chief Judge. The return date was slated for 6/12/2000.

The plaintiff who filed the suit in a representative capacity, deposed to a 17 paragraph affidavit with a view to sustaining his claim. A copy of the agreement between the parties is exhibit A. A receipt concerning the commencement of the registration of a trust fund was attached as exhibit ‘B’. A copy of Union Bank’s letter addressed to ‘the Trustees BTIP, Trust through solicitor is exhibit ‘C’.
Plaintiff’s solicitor’s letter forwarding exhibit ‘C’ to the defendant is exhibit ‘D’.
The requisite notice of intention to defend the suit pursuant to order 23 rule 3(i) of the rules of the trial court was filed by counsel on behalf of the defendant on 5th December, 2000. In support of the said notice of intention to defend the suit, an affidavit of 27 paragraphs was deposed to by Ume Maduka, a legal practitioner on behalf of the defendant on the same 5/12/2000.
The trial C.J. heard arguments of both counsel on 11/12/2000. The arguments canvassed appear very crisp. On 29th January, 2001, he entered judgment in favour of the plaintiff in the sum of N405 Million as well as interest of the sum of N15,750.000 being 15% interest on the amount of N305 Million that was due for over a year. A further 10% interest was granted from 29/1/2001 till the whole amount is liquidated. The trial C.J. fixed cost in favour of the plaintiff at N5,000.

The defendant felt unhappy with the judgment of the trial C.J. The original notice of appeal accompanied by five grounds of appeal was filed on 29/1/2001. Subsequently, five additional grounds were filed with the leave of the court.
On behalf of the appellant, four issues were formulated for a due determination of the appeal. They read as follows:
“1. Was the learned trial Judge right in entering judgment against the defendant under the undefended list procedure inspite of its affidavit disclosing a defence?
2. Whether the learned trial Judge was right in placing and or entertaining plaintiff’s claim under the undefended list on the basis of exhibit A and plaintiff’s affidavit in support of the claim?.
3. Whether the learned trial Judge was right in law to enter judgment for the plaintiff under the undefended list when on the material before him, plaintiff is not entitled to judgment?.
4. Was the learned trial Judge right to proceed to judgment under the undefended list on the finding made by him that defendant filed an affidavit showing facts that would relieve it of its obligations under exhibit A?.
On behalf of the respondent, a lone issue was distilled with precision for a due determination of the appeal. The issue reads as follows:
“Whether the learned trial Judge was right in entertaining and entering judgment in the plaintiffs claim under the undefended list procedure on the basis of exhibit A and the plaintiff’s affidavit in support of the claim notwithstanding the defendant’s affidavit to defend the suit?.”

At this juncture, I should point it out that the four issues couched on behalf of the appellant appear hair-splitting and repetitive. The success of an appeal certainly does not depend upon a host of unrelated grounds of appeal and issues therefrom. Proliferation of same should be avoided. Such a ploy often leads to confusion. I honestly think that counsel should bear this point in mind and appreciate that in it’s real essence, there is no difference between six and half a dozen.

In a suit placed in the undefended list, the vital unadulterated issue referable to the applicable court rules is – whether or not the defendant showed a defence on the merit which warrants that the suit be transferred to the general cause list for hearing and determination. The respondent’s counsel was right in the lone issue formulated as reproduced above for determination in this appeal.
When the appeal was heard on 19th January, 2005, each counsel on both sides adopted and relied on the amended brief of argument filed on behalf of the appellant and respondent respectively. Appellant’s counsel urged that the appeal be allowed. The learned senior counsel for the respondent after referring to the case of Carlen (Nig.) Ltd. v. Unijos & Anor. (1994) 1 NWLR (Pt. 323) 631 at 668-669 urged us to dismiss the appeal.

In its brief of argument, it was contended on behalf of the appellant that liability for debt claimed by the respondent on the basis of exhibit A was denied on two legal grounds as can be gleaned from averments contained in the affidavit in support of the notice of intention to defend. The appellant maintained that the offer to donate made in exhibit A is a voluntary and free offer made without any consideration from the respondent and is not a debt but an offer to donate which is not in law enforceable. Further, that if the stance stated was wrong, it is still not liable to the claim in debt because the condition precedent to it making any payment under exhibit A, namely the establishment of a Trust Fund, has not been satisfied by the respondent. In aid of his submission, appellant’s counsel referred to the cases of Dunlop Pneumatic Tyre Company Limited v. Selfridges & Co. Ltd. (1915) A.C. 847 at 852; Bioku v. Light Machine (1986) 5 NWLR (Pt. 39) 42 and Mrs. D. Udechukwu v. Ngene (1992) 8 NWLR (Pt. 261) 565.

Furthermore, it was submitted that an offer to make donation, by its nature, constituted no enforceable contract in law. Learned counsel opined that the money referred to in exhibit ‘A’ is purely an offer of a donation to be made or an intended gratuitous gift by the appellant to a Trust Fund. He felt that a promise simpliciter is not enforceable and cannot be acted upon unless it is made under seal or supported by consideration. He felt that exhibit A is neither expressed as a deed nor made under seal. It therefore cannot be said to be a valid and enforceable agreement in law; contended counsel who cited the case of B. Stabilini & Co. Ltd. v. Obasi (1997) 9 NWLR (Pt. 520) 293 at 300, 303, 305-6.

To further buttress the point made on the establishment of a Trust Fund as a condition precedent to the making of donation, appellant maintained that same has not been registered under the Companies and Allied Matters Act (CAMA) 1990 and such was fatal to the respondent’s case. He referred specifically to Section 679 of CAMA. Learned counsel felt that the trial CJ found that the appellant put forward facts that will get them out of fulfilling their obligation under the agreement, exhibit A and ought to have transferred the suit to the general cause list for full scale trial. He cited the cases of F.M.G. v. Sani (1990) 4 NWLR (Pt. 147) 688; SMIG (Nig.) Ltd. v. ED of Nigeria Ltd. (2003) FWLR (Pt.171) 1606; Hanseatic Int. Ltd. & Anr v. Clement Edrah (2002) 13 NWLR(Pt. 784) 375, (2001) WRN (Vol. 48) 163 at p. 170; Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737.

On behalf of the respondent, learned senior counsel submitted that the contention that the offer to donate the sum of N505 Million as in exhibit A is without consideration does not reflect the reality in the agreement. He asserted that exhibit A is not an offer but a full fledged contract made up of offer and acceptance. He referred to paragraphs 4-9 of the affidavit verifying the claim which depict the respondent’s forbearance of their right to re-negotiate the Bonny Terminal Land Agreement of 1958 for the time being; for which the lump sum of N505 Million was agreed upon by the parties to be paid by the appellant. Senior counsel observed that consideration need not be adequate as it is sufficient if it has some value in the eyes of the law. He cited the case of Royal Exchange Assurance Nigeria Ltd. & Ors. v. Aswani iles Industries Ltd. (1991) 2 NWLR (Pt. 176) 639 at 666-667 G-A. ”

Senior counsel further contended that a gratuitous promise is even binding and enforceable as long as it is supported by nominal consideration. He referred to Chitty on Contracts (General Principles) 26th edition, paragraph 165 at page 115.
Senior counsel conceded the point that no impression of a wafer seal appears on exhibit A. He observed that it was stamped, subscribed and attested as a deed by officials of the appellant to wits: Director and its Manager attesting the signature of his Director. He opined that the presumption of sealing and delivery under Section 127 of the Evidence Act applies to exhibit A as to make it a deed. He observed that exhibit A was made and put forward by the appellant and any misuse of words therein should be construed against the appellant. He felt that the appellant should not be allowed to impugn exhibit A as it should not be allowed to take advantage of its own wrong. He cited the case of Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 at 14B in aid of his submission.

Senior counsel maintained that Trust Fund establishment was never made a condition precedent for the payment of the sum of N505 Million in exhibit A. He felt that it was merely collateral on secondary act of the plaintiff in the agreement to receive the payment in exhibit A. The Trust Fund is merely the conduit through which the money was to be paid according to senior counsel. The appellant had obligation to pay the stated sum to the Community. He felt that there is nothing in exhibit A which demanded a registration of a Trust or a Certificate of a Trust Fund. He opined that CAMA provides for the registration of a Trust. It does not provide for registration of a Trust Fund. Senior counsel maintained that appellant should not read into exhibit A extraneous conditions. Senior counsel felt that as required by exhibit ‘A’ the respondent provided a separate trust account and informed the appellant accordingly.

Learned senior counsel submitted that the appellant’s affidavit did not depict a defence on the merit as duly considered by the learned trial C.J. He referred to the case of UTC (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 299F.
On issue of locus standi of the plaintiff, senior counsel observed that it was raised for the first time on appeal. He maintained that the plaintiff who sued in a representative capacity has the requisite locus to institute the action.
Senior counsel finally urged that the appellant should not be allowed to continue to postpone meeting its obligation. He referred to the case of Nishizawa Limited v. Jethwani (1984) 12 S.C. 234 at p.278 and prayed that the appeal be dismissed for lack of merit. The appellant made an issue as to whether or not the respondent furnished consideration for the lump sum it agreed to pay to the respondent. It is here relevant to have a clear definition of what is meant by consideration in law. In Black’s Law Dictionary, Sixth Edition at page 306, consideration is defined as:
“The inducement to a contract. The cause, motive, price or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other. Richman v. Brookhaven Servicing Corp … 363 N.Y.S. 2nd 731,733. It is a basic, necessary element for the existence of a valid contract that is legally binding on the parties.”
The above is in tune with the opinion of the House of Lords in the case of Dunlop Pneumatic Tyre Company Limited v. Selfridge & CO. Ltd. (supra) at page 85. Therein, the position was put briefly thus:
“A second principle is that if a person with whom a contract not under seal has been made is to be able to enforce it, consideration must have been given by him to the promisor.”
The same opinion was expressed by our own courts in the cases of Bioku v. Light Machine (supra) and Mrs. D. Udechukwu v. Ngene (supra). Consideration, no doubt, is an essential element of a valid contract and without it, no contract would have been in existence.
However, it has now become trite that consideration need not be adequate as long as it has some value in the eyes of the law and flows from the promisee to the promisor. This is because it is the parties who dictate the terms of a contract freely entered into by them. Refer to Royal Exchange Assurance Nig. Ltd. v. Aswani iles Industries Ltd. (supra) at pages 666-667 G-A.
It must be stressed that it appears that even a gratuitous promise is binding and enforceable as long as it is supported by nominal consideration. The learned authors of Chitty on Contracts (General Principles) 26th Edition, paragraph 165 at page 115 stated the law as follows:
“Where an agreement is legally binding on the ground that it is supported by nominal consideration, the doctrine of consideration does not serve its main purpose of distinguishing between gratuitous and onerous promises. But the law has no settled policy against enforcing all gratuitous promises. It only refuses to enforce informal gratuitous promises and the deliberate use of a nominal consideration can be regarded as a form to make a gratuitous promise binding.”

In a bid to show that consideration was given by the respondent, senior counsel referred to paragraphs 4, 5, 6, 7, 8 and 9 of the affidavit deposed to by the respondent to prop the action filed in the undefended list.
The stated paragraphs read as follows:
“(4) That about the month of March, 1999 defendant went into negotiations with the representatives of the Bonny Kingdom for the payment of regenerative development funds to the community as a token recompense for its operations in the Bonny Terminal.
(5) That after several sessions of negotiations, the defendant agreed to pay the sum of N505 Million to the Bonny Kingdom by way of regenerative development Fund to the Kingdom and for the benefit of the entire Bonny Citizenry.
(6) That the meetings where this agreement was reached was attended by Mr. H. Nwokolo and Mr. V. Okwechime for and on behalf of the defendants while Chief Dr. O.R. Long John; Chief Dr. A.A. Finecountry, Chief N.Y. Alaputa with L.E. Nwosu Esq. and O. Willie-Pepple, Esq, as professional advisers, appeared on the mandate of his majesty the Amanyanabo of Bonny.
(7) That the Bonny Kingdom initially came to re-negotiate first and foremost the consideration for the Bonny Terminal Land made in the 1958 agreement between the Bonny Kingdom and the defendants but the defendants on their part insisted that they would not at this time re-negotiate or tamper with the aforesaid agreement except at a much later date (sic) after the new land rate have been determined.
(8) That the defendant in the alternative to the regeneration of Bonny Terminal Land consideration offered to pay a lump sum gratuity to the entire Bonny Kingdom in view of their numerous oil interest in pipeline, gas line, oil wells, flow stations, in-shore and off-shore loading facilities, storage and residence in the Bonny Kingdom under the title SPDC/BTIP.
(9) That following the position of the defendant the Bonny Kingdom agreed and entered into an agreement in the like terms which agreement was drafted by the legal department of the defendant for the payment of the sums of money on the dates hereunder outlined to the entire Bonny Kingdom.
(a) First instalment N305 Million payable on 24/12/99 N5 Million therefore being traditional comey to Chief Council.
(b) Second instalment N100 Million payable on 24/12/2000.
(c) Third instalment N100 Million payable on 24/12/2001.
A copy of the aforesaid agreement is herewith attached as exhibit A.”

It is clear to me that from the above paragraphs which the appellant in paragraph 7 of its own affidavit admitted in a qualified fashion, there is forbearance on the part of the respondent not to renegotiate the Bonny Terminal Land Agreement made in 1958, at least, for the mean-time. The appellant agreed to pay the lump sum of N505 Million for the forbearance of the respondent not to renegotiate, in the meantime, the 1958 agreement. To my mind, such forbearance is consideration in kind known to law given to the appellant, the ‘Promisor’. In short, there is consideration for appellant’s promise made in exhibit A.

Next, is the point that the appellant tried to impugn exhibit A by asserting that it was not expressed as a deed or made under seal. It is true that no wafer seal appears on exhibit A which was drafted by the Legal Department of the appellant. But it was stamped, subscribed and attested by a Director of the appellant to wit: Mr. J.R. Udofia while Mr. Ted Ene, a Manager attested to the signature of his director. The presumption of sealing and delivery of same under Section 127 of the Evidence Act applies to exhibit A. The stated Section 127 of the Evidence Act provides as follows:
“127. When any document purporting to be, and stamped as, a deed, appears or is proved to be or to have been signed and duly attested it is presumed to have been sealed and delivered although no impression of a seal appears thereon.”
From the above provision of the law, it is clear that the appellant, who prepared exhibit ‘A’ cannot be allowed to impugn same and renege from or back down from their obligation as dictated in the agreement – exhibit ‘A’. The appellant cannot be allowed to take advantage of a surmised wrong committed by it. Refer to Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 at page 14.
Even then, in modern times, if a document is signed by the alter ego of the company, sealing is no longer a sine qua non to the validity of the same since its purpose is to ensure that the right persons entered into an agreement on behalf of the company. Also, Section 77 of CAMA approves same. The case of Carlen (Nig.) Ltd. v. Unijos & Anor. (supra) at P.668 cited by the senior counsel to the respondent is clearly in point here.
It is clear that the fact that a seal is not affixed to exhibit A does not render it invalid. To my mind, that contention can be likened to clinging to a straw.

There is also the issue of registration of a Trust or Trust Fund being a condition precedent to the payment of the agreed sum of N505 Million in exhibit A. It is apt to reproduce the recital in exhibit A as it is here relevant. It goes thus on page 13 of the record:
“WHEREAS:
1. The Shell Petroleum Development Company of Nigeria Limited (hereinafter referred to as Shell) has decided to implement some project initiatives in support of development efforts in Bonny Community, in association with the Bonny Terminal Integrated Project (BTIP).
2. The Bonny Council of Chiefs (hereinafter referred to as the Council) for and on behalf of the Bonny Community as represented by Chief Dr. A. A. Finecountry as Secretary of Council has on behalf of the Bonny Community, requested that such initiatives be translated into monetary donations to Bonny Community, to enable the Community decide for itself, what beneficial projects to embark on.
3. The payment shall be made into a trust fund to be established by the Council to ensure prudent management.”

From the portion of exhibit A quoted above, can it be said that, registration of a Trust or Trust Fund is a must before the appellant honours its agreement in exhibit A drafted and signed by it? I think not. Parties are bound by the agreement freely entered into. None of the parties can be allowed to read into same what is not contained therein. Nothing in exhibit A demands a registration of a trust or a Certificate of Trust Fund. Registration of Trust Fund is not provided for by the Companies and Allied Matters Act (CAMA for short). I agree with the view of the trial C.J. that the respondent performed their part of the agreement to establish a trust fund as shown in exhibit B. They opened the Trust account with Union Bank as manifest in exhibit C. The demand of exhibit A has been met. I resolve this issue against the appellant.

I now move to the issue touching on whether or not the appellant showed defence on the merit to warrant the action being transferred to the general cause list. I dare say that the law relating to actions filed in the undefended list appears to be well settled. See the cases of Olubusola Stores v. Standard Bank of Nigeria Ltd. (1975) 4 SC 51; Ben Thomas Hotel Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) 523. A defendant who is served with such a writ has to file his notice of intention to defend the suit supported with an affidavit depicting triable issues; not frivolous ones, five clear days to the return date. If he fails to do so, judgment will be entered against him without much ado.
The defendant must show a defence on the merit or a bonafide defence. Such a defence must not be a sham. It must not be frivolous, spurious, worthless or designed to postpone the day of reckoning. See UTC (Nig.) Ltd. v. Pamotei & Ors. (1989) 2 NWLR (Pt. 103) 244; (1989) 2 NSCC (Pt. 1) 523; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283; (1990) 21 NSCC (Pt. 2) 433; Agro Millers Ltd. v. CMB (Nig.) Plc. (1997) 10 NWLR (Pt. 525) 469 at 477-478. In Nishizawa Limited v. Jethwani (1984) 12 SC 234 at p.278, Aniagolu, J.S.C. pronounced bluntly thus:
” … A defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness.”

I need to touch on the point made faintly by the appellant that the respondent has no locus standi to institute the action. I am unable to see where such was really canvassed and determined by the lower court. Howbeit since the money in exhibit A is to be paid to all the entire people of Bonny Kingdom and the suit is, brought in a representative capacity on behalf of the entire people of the Kingdom, I see no big deal in the complaint. The plaintiff/respondent, the Amanyanabo in council, the chiefs, elders and people of Bonny Kingdom he represents have the locus to institute the action.
The learned trial C.J. said it and I agree with him that ‘it is clear that the defendant is but fishing for defences.’ There is nothing in their affidavit which denied their undertaking to pay the money in principle. The condition precedent relied upon by them have been shown to be to no avail. It is clear that the appellant failed to show any defence on the merit that will warrant the suit being transferred to the General Cause List for a full scale trial.

This is a convenient point where I must reflect it that as discernible on page 2 of the transcript record of appeal, the suit was filed on 27/11/2000. As at that date, it is the first instalment in exhibit A at page 13 of the record that was due. The sum is N305 Million payable on 24/12/99. The second instalment of N100 Million payable on 24/12/2000 was not due. I am unable to trace in the record any amendment of the writ of summons. The liquidated sum due as at 27/11/2000 when the unamended writ was filed is N305 Million. This is the amount for which judgment should have been entered for the respondent by the trial C.J. on 29/1/2001. It is the amount that was due as at the time the writ was filed.

Equally, I am of the considered opinion that interest at the rate of 15% said to be N15,750,000 appears erroneous; with due respect. Nothing in exhibit A shows that such is within the contemplation of parties. And it is not a term of the agreement – exhibit ‘A’. I expunge the sum of N100 Million which is not a liquidated amount due on 27/11/2000 when writ was filed. As well, I delete the sum of N15,750,000 awarded as interest which appears like a bonus since it was not within the contemplation of parties. The respondent is only entitled to the sum of N305 Million being the only matured instalment and that shall be the judgment of the trial court. I endorse the order of 10% interest on the sum of N305 Million from the date of judgment – 29/12/2001 until the amount is liquidated in line with the rules of the trial court.

In conclusion, subject to the deductions made above by me in relation to the sum of N100 Million and interest of N15,750,000, the appeal is hereby dismissed. The respondent is entitled to costs which I assess and fix at N5,000.00 against the appellant.

SYLVANUS ADIEWERE NSOFOR, J.C.A.: I have been privileged to read in advance the draft of the judgment just delivered by my Lord Fabiyi, J.C.A. I entirely agree with his conclusion and the valid reasons for the conclusion.

As has been succinctly set out in the leading judgment with good grace, the facts are rather straight forward and lie within a narrow compass. Further comments may be allowed for only by way of an emphasis to add a coda. And I shall, however, permit myself to state some of the facts to make my comment intelligible.

The respondents were plaintiffs in the Port Harcourt High Court. By an agreement, “Bonny Terminal Integrated Project Community Initiative,” the appellants, qua defendants at the trial, bound themselves, inter alias, as follows:
“Now it is agreed as follows:
1. SPDC will donate the sum of N505,000,000.00 (Five Hundred and Five Million Naira) into the trust fund on a once off basis, payable in 3 instalments.
2. The said sum of N500 Million is derived from $5,000,000 United States dollars in naira equivalent, at the prevailing exchange rate of N100.00 to a dollar, for stability and to sustain the value of the naira. It is not the intention that any dollar shall thereby become payable under and by virtue of this agreement.
Disbursement Schedule
First instalment, of N305, payable on 24/12/99.
Second instalment of naira equivalent of One million United States dollars (depending on the exchange rate) payable on 24/12/2000.
Third instalment of the naira equivalent of One Million United States dollars (depending on the exchange rate) payable on the 24/12/2001.
3. The donation shall be on a once off basis.
4. The council has assured shell that the amount to be donated is sufficient to execute all the projects identified by the community and shall therefore not have recourse to SPDC on the adequacy or otherwise thereof

Signed by
(…)
For and on behalf of Shell
In the presence of:
Name: Mr. T.N. Ene
Address: P.T.E Shell Port Harcourt
Signature: (…)
Signed by (…)
For and on behalf of The Community
In the presence of:
Name: Chief Dr. A. A Finecountry
Address: Ibiama’s Compound -Bonny
Signature: ( … )”.
(Italics above is supplied for emphasis only).

Now, “the problem for a court of Construction” said Lord Tomlin, “must always be so to balance matters that, without the violation of essential principle, the dealings of men may as far as possible be treated as effective, and that the law may not incur the reproach of being the destroyer of bargains.” See Hillas & Co. v. Arcos (1932) All ER Rep. 494 at p. 499.
By a writ of summons filed on the 27th day of November, 2000, the respondents, qua plaintiffs, commenced their action in the High Court of Rivers State claiming as endorsed on the writ against the defendants jointly and severally for:
“(i) The sum of N505 Million being the money owed the plaintiffs by the defendants inclusive of 15% interest on the initial N305 Million from the date it fell due being 24th December, 1999 till judgment thereafter 10% on the judgment debt until its satisfaction therefore.
(ii) And subsequently 10% interest on the balance as they shall fall due on the 14/12/2000 and 24/12/2001 until satisfaction of the debt.”

Note: The action was filed on the 27th of November, 2000. Significantly, by a simple process of arithmetic “November, 2000” came before “24/12/2001.” Yes!
The writ was specially endorsed with a statement of claim under Order 23 of the Rivers State High Court (Civil Procedure) Rules, 1987. It was marked, “undefended.” It becomes necessary for the purposes of clarity and elucidation to refer to and carry, in parts, Order 23.
Order 23 rule 1 reads, inter alias, thus:
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list” and marked writ of summons accordingly …”
2. …
3(1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend …
(italics is supplied for emphasis).
The procedure under “undefended list case” is designed for quick justice. It cuts down costs. The procedure is aimed at preventing the injustice to the deserving plaintiff most likely to occur in having to go through a long and protracted trial where, indeed, there is no defence to the plaintiffs claim. It saves time of the court and the tax payers.

In this case, the defendants herein the appellants, complied with Order 23 rule 3(1) supra. Their affidavit, as the learned trial judge F.N.N. Ichoku, C.J. found, rightly in my view, was worthless and useless. Why? Only because and because only it disclosed “no defence on the merit.”
The learned trial Chief Judge proceeded to enter judgment in favour of the plaintiffs. He expressed himself, inter alias, at page 33 of the record of appeal, as follows:
“The plaintiff is claiming the sum of N505,000,000.00 being the total sum. It is clear from the agreement exhibit A that the payment of the said amount is to be liquidated in three instalments. The 1st instalment of N305 Million was due on 24/12/99. The interest at 15% from that (period to coming to court is N15,750.00. The next due date for the sum of N100 Million was 24/12/2000. As at now that is due and payable. Thus judgment will be entered to the plaintiff to the sum of N405 Million and interest of the sum of N15,750,000.00 on the amount of N305 Million that was due for over a year.”

The defendants, aggrieved and dissatisfied with the judgment, naturally and logically have appealed on five (5) grounds of appeal to this court. Four (4) issues for determination were distilled from the five grounds of appeal.
Shorn of mere verbiage and, concisely stated, the one and only issue for determination, after a careful examination and comparison with the issue as formulated by the respondent, is as framed by the learned Senior Advocate of Nigeria (SAN) L. E. Nwosu Esq., at page 3 of the respondents’ brief of argument. And it reads:
“Whether the learned trial Judge was right in entertaining and entering judgment in the plaintiffs’ claim under the undefended list procedure on the basis of exhibit A and the plaintiffs’ affidavit in support of the claim notwithstanding the defendant’s affidavit to defend the suit.”

Now, Section 16 of the Court of Appeal, No. 43 of 1976 the marginal notes to which read: “general powers of court”, stipulates in parts as follows:
“The Court of Appeal … and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part …”
The general powers of the court have been spelt out in detail in Order 1 rule 19 of the Court of Appeal Rules, 2002. The object of this order and rule is, in my respectful opinion, to enable the court to make any order or give such judgment which the court below ought to have made for the satisfactory administration of justice according to law. See Orayemi v. Bonari (1954) 14 WACA 597. Those are very wide powers which enable the appellate court to exercise the powers of the court of first instance.

Herein, the respondents were endeavouring to claim a liquidated money sum due and owing to them by the appellants, as a debt to them falling due as an instalmental payment per exhibit A.
As I did note above, the writ of summons placed on the “undefended list” procedure, was initiated and commenced or filed on the “27th day of November, 2000.” The all important question arising becomes this:
Q:- By the 27th of November, 2000, was the “second instalment of the naira equivalent of One Million United States Dollars (depending on the exchange rate) payable on 24/12/2000″, a liquidated money demand, i.e. a debt owed to the respondent, qua plaintiffs, and recoverable under Order 23 of the Rivers State High Court (Civil Procedure) Rules, 1987 (supra) ?
Ans:- The answer is a short, quick and unhesitating capital No. Qua lege, by what law? And quo iure, by what right?
When the respondents commenced their action, the second instalmental payment due and payable had not matured or fallen due. It was not, at or by that date, a debt owed to the respondent. No. The debt, put rather nakedly, had not matured. The claim made by the plaintiffs to that instalment was, therefore, premature.

Accordingly, the learned trial Chief Judge was in error to have awarded that sum to the respondents, pursuant to Order 23 of the Rivers State High Court (Civil Procedure) Rules, 1987 (supra).
The court of trial was bound by the principle of res ultra petit. ” On that account, that sum of money awarded over and above what was due and owed as a debt ought not to be allowed to stand. The award made by the court below ought, therefore, to be reduced by deducting therefrom the excess amount requiring to be payable after the 27 November, 2000 but on the “24/12/2000.” Indeed!
The appeal, therefore, succeeds partially. It is for my above reason that I agree with the leading judgment and do abide by the consequential order.

PIUS OLAYIWOLA ADEREMI, J.C.A.: I have had the privilege of a preview of the judgment just delivered by my learned brother, Fabiyi, JCA, I firmly agree with his reasoning and conclusion that the appeal succeeds in part. I will however, add my contribution in amplification of the issues discussed in the judgment.

The plaintiff (hereinafter referred to as the respondent) had by a summons placed on the undefended list and accordingly marked, claimed against the defendant (hereinafter called the appellant) the following:
“(1) The sum of N505 Million (Five Hundred and Five Million Naira) being money owed the plaintiff by the defendant inclusive of 15% interest on the initial N305 Million from the date if it fell due being 24th of December, 1999 till judgment thereafter at 10% on the judgment debt until its satisfaction therefore.
(2) And subsequently 10% interest on the balance, as they shall fall due on the 24/12/2000 and 24/12/2001 until the satisfaction of the debt.”

The summons was supported by a five-paragraph affidavit in verification thereof. Sequel to the filing of summons, the plaintiff/respondent brought an application ex-parte dated and filed on the 27th of November, 2000 praying for an order entering the suit for hearing on the undefended list and for marking the writ of summons accordingly. The application ex-parte was supported by a seven-paragraph affidavit. That application was granted. Suffice it to say that the plaintiff/respondent also filed a seventeen-paragraph affidavit authenticating their claims – the action was brought in a representative capacity. The said affidavit was supported by a number of exhibits in further authentication of the claims. The defendant/appellant who manifested an intention to defend the suit filed a twenty-four-paragraph affidavit to reinforce that intention. Arguments of counsel on both sides for and against the grant of the reliefs sought were entertained by the trial Judge on the 11th December, 2000. In a reserved judgment delivered on the 29th of January, 2001, the learned trial Judge entered judgment in favour of the plaintiff/appellant in the sum of N405 Million plus interest of 10% per annum, from the date of the judgment i.e. 29th January, 2001 till the whole sum was liquidated. The sum of N5,000.00 was awarded the plaintiff/respondent as cost. Being dissatisfied with the said judgment, the defendant/appellant appealed therefrom to this court upon a notice of appeal dated and filed on 29th January, 2001. The notice carries five grounds of appeal. Distilled for determination by this court are four issues, which, as set out in the appellant’s brief of argument, are in the following terms:
“(1) Was the learned trial Judge right in entering judgment against the defendant under the undefended list procedure inspite of its affidavit disclosing a defence?
(2) Was the learned trial Judge right in placing and/or entertaining plaintiff’s claim under the undefended list on the basis of exhibit A and the plaintiff’s affidavit?
(3) Was the learned trial Judge right in law to enter judgment for the plaintiff under the undefended list when the plaintiff is not entitled to judgment?
(4) Was the learned trial Judge right to proceed to judgment under the undefended list on the finding made by him that defendant filed an affidavit showing facts that would relieve it of its obligations under exhibit A?”

For their part, the respondent raised only one issue for determination, which, as contained in their brief of argument is as follows:
“Whether the learned trial Judge was right in entertaining and entering judgment in the plaintiffs claim under the undefended list procedure on the basis of exhibit A and the plaintiffs affidavit in support of the claim notwithstanding the defendant’s affidavit to defend the suit.”
When this appeal came before us for argument on the 19th of January, 2005, Mr. Irerheme learned counsel for the appellant referred to, adopted and relied on his client’s amended brief of argument dated and filed on the 4th of December, 2003 and urged that the appeal be allowed. Mr. Nwosu, learned senior counsel for the respondent referred to, adopted and relied on his client’s amended brief of argument. He claimed in aid of the arguments contained in the said amended brief the decision in Carlem (Nig.) Ltd. v. Unijos D & Anor. (1994) 1 NWLR (Pt. 323) at 668 – 669. Finally, he urged this court to dismiss the appeal.

After a close study of their four issues formulated by the appellant for determination by this court, each of them dovetails into the other. The four of them can conveniently and appropriately be merged into one issue. The only issue identified by the respondent, which I have reproduced above, encompasses the four issues formulated by the appellant. In this judgment, I shall be guided by the issue raised by the respondent.
In its brief of argument, the appellant submitted that through its affidavit it has disclosed a genuine defence; arguing that the offer to donate to the respondent which it made in exhibit A – a document freely signed by both sides – is a voluntary and free offer made without any consideration from the plaintiff/respondent and that if no debt but an offer to donate which is not enforceable in law. The second legal ground of attack proffered by the appellant is that the plaintiff/respondent having failed to establish a Trust Fund, which, according to it, was a condition precedent to it making any payment under exhibit A, it (appellant) was not liable to the claim in debt. The decision in the time-honoured case of Dunlop Pneumatic Tyre Company Ltd. v. Selfridge & Co. Ltd. (1915) AC 847 delivered by the House of Lord and our own decisions in Bioku v. Light Machine (1986) 5 NWLR (Pt. 39) 42 and Udechukwu v. Ngene (1992) 8 NWLR (Pt. 261) 565 were relied upon for these submissions. It was its further submission that exhibit A having not been made under seal and there been no consideration the premise to make the donation was not enforceable against the appellant; as according to it that agreement was not valid in law, notwithstanding that the appellant signed exhibit A; support for this submission was found in the case of B. Stabilini & Co. Ltd. v. Obasi (1997) 9 NWLR (Pt. 520) 293. In further support of its argument that the condition precedent which was the establishment of a Trust Fund, the registration and the establishment of which are controlled by the Companies and Allied Matters Act, having not been accomplished, was fatal to the respondent’s case adding that the mere payment of fees for registration of a trust would not, ipso facto, constitute the establishment of a trust in law – Section 679 of CAMA was prayed in aid. It was its further argument that the learned trial Chief Judge having held in his judgment thus:
“The defence put forward by the defendant in this suit is not a defence on the merit. It is a defence putting forward facts that will get them out of fulfilling their obligation under the agreement, exhibit A.”
ought to have transferred the case to the general cause list for the parties to establish the claim and defence respectively and the evidence to be adduced by them; while praying in aid the decision in F.M.G. v. Sani (1990) 4 NWLR (Pt. 147) 688 and SMIG (Nig.) Ltd. v. ED – of Nigeria Ltd. (2003) FWLR (Pt. 171) 1606. The plaintiff/respondent was therefore not entitled to judgment, it concluded while finally urging that the appeal be allowed.

For their part, the respondent through their brief of argument submitted that by forgoing their right to re-negotiate the Bonny Terminal Land Agreement of 1958 they have offered consideration for the lump sum of N505 Million agreed upon by the parties and payable by the appellant. The consideration, it was further submitted, need not be adequate; it is sufficient if it has some value in the eyes of the law; for this proposition the case of Royal Exchange Assurance Nigeria Ltd. & Ors. v. Aswani iles Industries Ltd. (1991) 2 NWLR (Pt. 176) 639.

Nominal consideration will even make a gratuitous promise binding; it was again submitted while placing reliance on chitty on contracts (general principles) 26th edition paragraph 165 at page 115. While conceding that no seal appeared on exhibit A, it (exhibit A) was stamped, subscribed to a deed by its Director (Mr. J. R. Udofia) with its Manager (Mr. Ted Ene) attesting to the Director’s signature the document (exhibit A) must be presumed to have been sealed and delivered; any defect or misuse of words in exhibit A should be resolved against the appellant while placing reliance on Section 127 of the Evidence Act and Adimora v. Ajufo ( 1988) 3 NWLR (Pt. 80) 1. On the issue whether the trust fund) was a condition precedent without which the obligation to pay the money to the community would not materialise, it was submitted that the trust fund was merely a conduit pipe through which the money was to be paid; the obligation to pay the sum to the community is the only obligation of the appellant under exhibit A. The registration of a trust or a certificate of a trust fund is not a stipulation in exhibit and while registration of trust is a demand by CAMA, registration of a trust fund is not; all that needed be done by the respondent was to provide and to inform the appellant accordingly. This, it was also submitted, had been done. In their final submission, the respondent said that from the totality of the processes before the court below, the appellant could not be said to have presented a defence on the merit such as to warrant the transfer of the suit to the general cause list. The respondent finally urged that the appeal be dismissed for reason of lack of merit.

I shall start the consideration of this appeal by treating the two issues of (1) not affixing seal on exhibit A, thus, according to them, rendering that agreement – exhibit A invalid in law and unenforceable and (2) non-registration of trust fund and 4 non establishment of trust fund accountant. Both were regarded by the appellant as condition precedent – something which must have occurred without which no further step sanctioned by the law, would take place. The appellant had submitted that to attract the stamp of legal validity to itself exhibit A ought to have been made under a seal or supported by consideration, none of which could be ascribed to it. A company’s seal is, in practical term affixed in the manner laid down in the articles. See Section 74 of CAMA. The requirement that the seal of a company shall be affixed to any document is to authenticate the validity of any transaction entered into on behalf of the company. Does the absence of a seal on any document witnessing the transactions entered into by a company render that document invalid and thus rendering the transaction null and void? I shall answer that question ANON. Meanwhile I hereunder reproduce the provisions of Section 77 of CAMA, which reads thus:
“A document or proceeding requiring authentication by a company may be signed by a director, secretary, or other authorised officer of the company, and need not be under its common seal unless otherwise so required in this Part of Act.”
It has been said that the accredited representatives of the appellant – its Director and Manager – signed exhibit A and there has not been anything to the contrary. Indeed the appellant asserted that it signed exhibit A. The presumption is that those authorised by it signed exhibit A. Let it be said that strong presumption avails in law, the maxim is praesumptio violenta valet in lege. In Mahoney v. East Holyford Mining Co. (1875) L.R. 7 H.L. 869. Lord Hatherly, on the bindingness or validity of the actions of those authorised to commit a company, reasoned at page 894 and I quote him:
“When there are persons conducting the affairs of the company in a manner which appears to be perfectly consonant with the articles of association those so dealing with them externally are not to be affected by any irregularities which may take place in the internal management of the company.”
It is clear from the above that the accredited representatives having appended their signatures to the exhibit they been the alter ego of the company; liability under exhibit A cannot be denied by the appellant. The Directors together with other top officials have deemed authority to bind the company. Any person dealing with a company that is represented by this category of officials can rightly assume that all the conditions in the memorandum and articles of association of the company have been fulfilled by this category of top officials. That is the benefit of the rule in Royal British Bank v. Turquand (1843 – 60) A.E.R. 435 followed in Mahoney supra. Even if the two accredited representatives have wrongly executed exhibit A, the appellant cannot escape liability. To hold otherwise will tantamount to encouraging a person to take advantage of his wrongdoing; the latin maxim is nullum commodum capere potest de injuria sua propria. No one can stipulate, for iniquity and no polluted hand shall touch the pure fountain of justice. It is here that the dictum of Widgery L.J. in Buswell v. Goodwin (1971) 1 AER 418 is apposite when at page 421 he said:
“The proposition that a man will not be allowed to take advantage of his own wrongdoing is no doubt a very salutary one and one which the court would wish to encourage.”
Suffice it to say that the above dictum was quoted with approval by the Supreme Court in Adedeji v. N.B.N. Ltd. (1989) 1 NWLR (Pt. 96) 212. The submission of the respondent that from the facts before the court below, there is a presumption of sealing and delivery, under Section 127 of the Evidence Act; that section provides:
“When any document purporting to be and stamped as a deed appears or is proved to be or to have been signed and duly attested, it is presumed to have been sealed and delivered although no impression of a seal appears thereon.”
is very much correct and I do agree. The decision in Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 is not only germane here, it is very much binding and this court. Exhibit A is valid on this point.

It was also argued that the registration of a trust or a certificate of a trust fund is sine qua non to the payment of the sums of money stipulated in the agreement. I pause to reproduce the salient parts of exhibit A dealing with this point; it thus –
“WHEREAS
“(1) The Shell Petroleum Development Company of Nigeria Limited (hereinafter referred to as Shell has decided to implement same project initiative in support of development efforts in Bonny Community in association with the Bonny Terminal Integrated Project (BTIP).
(2) The Bonny Council of Chiefs (hereinafter) referred to as the Council) for and on behalf of the Bonny Community as represented by Chief Dr. A. A. Finecountry as Secretary of Council has on behalf of the Bonny Community, requested that such initiatives be translated into monetary donations to the Bonny community, to enable the community decide for itself, what beneficial projects to embark on.
(3) The payment shall be made into a trust fund to be established by the council to ensure prudent management.”

It is trite law, that parties are bound by the terms of the agreement, which they have voluntarily entered into, and no party shall be allowed to read into or incorporate into, any thing extraneous into that agreement. By no strained interpretation or construction can one infer from the contents of exhibit A that registration of a trust or production of certificate of Trust Fund is a desideratum to the payment of the sum of money which the appellant voluntarily agreed to pay. I need say that from the processes filed a current account No. 6541020003058 was opened by the respondent with the Union Bank of Nigeria Plc. A letter dated 17th July, 2000 from the bank confirms this point. The account was styled BTIP Trust Account. I have no doubt in mind that this account meets the demand of exhibit A – the agreement. Any issue relating to this point is therefore resolved against the appellant.

One other point, which I wish to touch before I proceed, relates to whether there was any consideration flowing from the respondent to the appellant to enable the latter make the donation. In support of their case that consideration was offered by the plaintiff/respondent to the defendant/appellant, the respondent deposed in paragraphs 4, 5,6, 7, 8,9 and 10 of the affidavit verifying their case as follows:
Para 4
“That about the month of March 1999, defendant went into negotiations with representatives of the Bonny Kingdom for the payment of regenerative developmental funds to the Community as a token recompense for its operations in the Bonny Terminal.
Para 5
That after several sessions of negotiations the defendant agreed to pay the sum of N505 Million to the Bonny Kingdom the way of a regenerative developmental fund to the Kingdom and for the benefit of the entire Bonny citizenry.
Para 6
That the meetings where the agreement was reached was attended by Mr. H. Nwokolo and Mr. v. Okwechime for and on behalf of the defendants which Chief Dr. O. R. LongJohn, Chief Dr. A. A. Finecountry, Chief N. Y. Alaputa with L. E. Nwosu, Esq. and O. Willie-Pepple Esq. as professional advisers, appeared on the mandate of his Majesty the Amanyanabo of Bonny.
Para 7
That the Bonny Kingdom initially come to re-negotiate first and foremost the consideration for the Bonny Terminal Land made in the 1958 agreement between the Bonny Kingdom and the defendants but the defendants on their part insisted that they would not at this time re-negotiate or tamper with the aforesaid agreement except at a much later date (sic) after the new land rate have been determined.
Para. 8
That the defendant in the alternative to the re-negation (sic) of Bonny Terminal Land Consideration offered to pay a lump sum gratuity to the entire Bonny in view of their numerous oil interest in Pipeline, Gas Line, Oil wells, Flow Stations, in-shore, and off-shore loading facilities, storage and residencies in the Bonny Kingdom under the tide SPDC/BTIP.
Para. 9
That following the position of the defendant the Bonny Kingdom agreed and entered into an agreement in like terms which agreement was drafted by the legal department of; the defendant for the payment of the sums of money on the dates hereunder outlined to the entire Bonny Kingdom.
(a) First instalment N305 Million payable on 24/12/99, N5 Million therefore being traditional convey to Chief Council.
(b) Second instalment N100 Million payable on 24/12/2000
(c) Third instalment N100 Million payable on 24/12/2001.

By paragraph 7 of the affidavit in support of notice of intention to defend the said, the defendant/appellant admitted the above-quoted paragraphs 4, 5, 6, 7, 8 and 9 to the extent that they undertook to assist in the physical educational and manpower development of its host communities. Can it be said that consideration flowing from the plaintiff/respondent to the defendant/appellant can be inferred from the above – quoted six paragraphs? Before answering this question, I need to get at the legal definition of “consideration”. The most comprehensive definition and often quoted with approval is that given by Lush J. in Currie v. Misa (1875) L.R. 10 Ex Ch. 153 where at page 162 he said:
“A valuable consideration in the eye of the law may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment loss or responsibility, given, suffered or undertaken by the other. Thus, consideration does not only consist of profit by one party but also, exists where the other party abandons some legal freedom of action in the future as
an inducement for the promise of the first. So it is irrelevant whether one party benefits but enough that he accepts the consideration and that the party giving it does thereby undertake some burden or lose something which in contemplation of law may be of value.”
The above definition was quoted with approval by the Court of Appeal (Nigeria) in B. Stabilini & Co. Ltd. v. Obasi (1997) 9 NWLR (Pt. 520) 293. By conceding to the defendant/appellant not to renegotiate the Bonny Terminal Land Agreement made in 1958, the plaintiff/respondent had offered some consideration. In the absence of fraud, duress or misrepresentation, consideration given need not be adequate. It is a price of the promise made. In the instant case, it is the price of a promise made by the defendant/respondent that if the latter would for go for the time being the renegotiation of the 1958 agreement it (defendant/appellant) would pay the sum of N505 Million. No fraud, duress or misrepresentation was pleaded by the defendant/appellant. The purpose of the undertaking to pay the sum of N505 Million by the appellant was to give value to the promise not to re-negotiate, for now, the 1958 agreement. In my mind, that is consideration known to law and which is an essential element of a valid contract, see (1) Bioku v. Light Machine (1986) 5 NWLR (Pt. 39) 42 and (2) Udechukwu v. Ngene (1992) 8 NWLR (Pt. 261) 565. I should end the discussion of the issue of consideration, which, as I have said, in my view, is present in this matter by recalling the well-valued dictum of the House of Lord in Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Company Ltd. (1915) A.C. 847 where at page 853 it was observed:
“A second principle is that if a person with whom a contract not under seal has been made is to be able to enforce it, consideration must have been by him to the promiser or to a some other person at promiser’s instance.”

For the umpteenth time, let me say that exhibit A which curtains promises by the appellant is enforceable in law by the plaintiff/respondent who has bought those promise by the price required by the appellant – the promiser.
The final issue for consideration in this appeal is whether the defendant/appellant provided a defence on the merit, as required by law, such that the lower court would have transferred the suit from the undefended list to the general cause list for evidence to be taken from both sides.

I shall start the discussion of this last issue by saying that the undefended list procedure is aimed at shortening the hearing of suit and also to eliminate technicalities of pleadings. The provisions dealing with actions under the undefended list are apparently technical and I would like to believe that they are deliberately designed in that way in order to ensure that by requesting the plaintiff to comply strictly with those rules injustice would not be foisted on a defendant whose freedom to defend the case may be neither narrowed down.

Let me say that if those rules are complied with by all sides, the defendant need suffer no prejudice in his defence. The suit which came to court by way of a writ of summons issued under the Undefended List Procedure was brought pursuant to Order 23 of the Rivers State High Court (Civil Procedure) Rules 1987. The provisions thereof, I dare say, are of universal application in all the jurisdictions within Nigeria. A suit in an undefended list is only maintainable in a claim for liquidated money demand, which is a debt or other specific money due and payable by the defendant to the plaintiff. That sum claimed must however be ascertained or capable of being ascertained by mere arithmetical calculation. The court will now allow oral evidence to be taken in ascertainment or proof of the sum claimed. Under the rules, a defendant who intends to defend the suit filed against him in an undefended list must file a notice of his intention to defend. That notice must be accompanied by an affidavit setting out in very clear and unmistaken terms the grounds of his defence. Where those grounds are not entirely frivolous and where they show that there is a dispute between the parties, then the court will be under a duty to transfer the suit to the general cause list for hearing, see (1) Olubusola Stores v. Standard Bank of Nigeria Limited (1975) 4 SC. 51 (2) Co-operative and Commerce Bank (Nig.) Plc. v. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt.651) 19. However, a general statement in the affidavit that the defendant has a good defence to the action will not meet the requirement of the law. See Jipreze v. Okonkwo (1987) 2 NWLR (Pt. 62) 737. This explains why I had earlier said in this judgment that if both sides comply strictly with the provisions of the rule neither will suffer any prejudice. The case of the plaintiff/respondent is predicated on exhibit A – the agreement – the salient parts of which I have reproduced supra; so also have I reproduced supra the relevant paragraphs of the affidavit of the plaintiff/respondent authenticating their case. Then, what is the defence, on the merit, put up by the defendant/appellant? This can be gathered from the affidavit sworn to by the defendant/appellant in support of the intention to defend.

Before I proceed to reproduce the relevant paragraphs of the affidavit it is here appropriate to say that the defendant/appellant by paragraph 13 of that affidavit admitted making exhibit A – the agreement. The relevant paragraphs are 8, 9, 10, 14, 15, 16, 17, 18 and 20 and they are in the following terms:
Para 8 “In further reply to the said paragraphs 4, 5, 6, 7, 8 and 9 the defendant states that the decision and offer of donation is separate and distinct from the defendant’s obligation to pay the agreed contractual and statutory land rates for the lease of the Bonny Terminal Land which said obligation the defendant has faithfully and timeously fulfilled since the lease agreement came into effect in 1958.
Para 9
The defendant states in particular reply to paragraphs 8 and 9 of the said affidavit that there was no basis, in law, for the re-negotiation of any lease or of the said Bonny Terminal Land Lease or any other lease of any interest in land in Bonny Kingdom. As admitted by the plaintiff in paragraphs 12 and 13 of their affidavit, the purported re-negotiation cannot therefore be a quid pro-quo for the offer of the defendant to make a development donation to the Bonny Community.
Para 10
The defendant states categorically that the offer of naira equivalent of US $5 Million made to the Bonny Community is a free will gift offer made pursuant to the defendant’s policy as aforesaid, the community neither offered nor does it intend to offer anything as consideration.
Para 14
I am informed by Dejo Lamikanra, Esq. of counsel and I verily believed him that exhibit A does not nor does it confer or create a legally enforceable right of action, it does not constitute a contract, it is a conditional statement of intention to donate a sum of money in lieu of SPDC actually implementing projects in support of the development efforts in Bonny Community.
Para 15
The defendant denies paragraph 10 and states categorically that as shown in paragraph 3 of exhibit A, the condition precedent to the release of any donation promised is the establishment of a trust fund to ensure prudent management of the money to be donated. Indeed, the donation is to be credited into a trust fund so established.
Para 16
Despite repeated requests by the defendant, the plaintiff has up till date not shown any scintilla of evidence that the requisite Trust Fund has been established. All that the plaintiffs have shown on exhibit B is that on 22/5/2000 they obtained a Revenue Collector’s Receipt, evidencing payment of the sum of N10,000.00 the payment appears to be in connection with processing of registration of a Trust Fund.
Para 17
I am informed by the said Dejo Lamikanra, Esq. that exhibit B is not the same as a Certificate of Registration of a Trust Fund, nor does it confirm that a Trust Fund has, in law, been duly established.
Para 18
The defendant states, as it has consistently maintained to the plaintiffs, that until a Trust Fund is duly established, its desire to donate as conveyed in exhibit A will not be actualised. It being its desire and insistence that the rather large sum it intends to donate must be prudently utilised to the benefit of the entirety of the Bonny Community; to promote accountability in its utilisation and to prevent profligacy or misappropriation which could be the case if the money were to end up in the hands of a few individuals.
Para 20
The defendant reiterates all of the foregoing paragraphs in response to paragraph 12 of the plaintiff’s affidavit and states that once the plaintiff meet the condition precedent, the account of a properly and lawfully constituted Trust Fund, duly established under the Companies and Allied Matters Act.”

The above are the facts which the appellant set before the court below and upon which they requested it (the court) to put the suit on the general cause list. There is nothing therein to say that they did not under-take to pay the sum in principle, to the respondents. All they said is that the condition precedent to paying the money was non-existent. That certainly cannot be correct having regard to all I have discussed supra. The aforementioned paragraphs of the affidavit of the defendant/appellant are a calculated attempt to dribble the plaintiff/respondent out of the seat of justice such that their right will be denied them. A court of law which is as well a court of equity will not permit that. The result of all I have been saying is that the defendant/appellant did not put up a defence on the merit such as to warranting the suit been transferred to the general cause list.

One little point before I am done with this contribution. The learned Chief Judge of the court below in pronouncing the judgment of the court said inter alia:
“The plaintiff is claiming the sum of N505,000,000.00 being the total sum. It is clear from the agreement exhibit A that the payment of the said sum is to be liquidated in three instalments. The instalment of N305 Million was due on 24/12/99. The interest at 15% from that date for the sum of N100 Million was 24/12/2000. As it now that claim is due and payable.
Thus judgment will be entered to the plaintiff to the sum of N405 Million and interest of the sum of N15,750,000.00 on the amount of N305 Million that was due for over a year.
The remaining N100 Million which is due by 24/12/2001 is premature to claim same since it is not yet due.”

It is trite law that a court must not award for a successful party more than what he had claimed and legally found to be due to him as at the time the writ was filed. The writ was taken out on the 27th of November, 2000. As at the time of taking out the writ all that was due was the first instalment and that is N305 Million payable on the 24th of December, 1999. The second and third instalments were due for payment on 24th December, 2000 and 24th December, 2001 respectively. It is true judgment was delivered on the 29th of January, 2001 but the trial court was still bound by what was legitimately due to the plaintiff/respondent as at 27th of November, 2000 as shown on the summons filed on behalf of the plaintiff/respondent on that day. And that sum would remain at N305 Million till judgment date and after unless there was an amendment of the writ to reflect the sum due on the 24th of December, 2001. The record does not reflect any amendment of the writ. Therefore, the sum due for judgment as at 29th January, 2001 when the judgment was delivered was and still N305 Million. Also the sum of N15,750,000.00 awarded as interest on the N405 Million was erroneously awarded. Interest to be awarded in a claim for sum certain must be within the contemplation of the parties. There is nothing in exhibit A – the agreement showing that the parties agreed on the issue that interest be awarded in the event of default in the payment of the three sums of money stipulated therein as and when due. Although interest of 15% was claimed on the N305 Million due at the time the action was taken it is improper. It does not flow from exhibit A, which represents the meeting of the minds of the two parties. It is extraneous to the agreement. That sum awarded as interest must be expunged as contained in the leading judgment. The judgment sum which ought to have been awarded to the plaintiff/respondent is N305 Million (Three Hundred and Five Million Naira) only. The sum of N405 Million (Four Hundred and Five Million Naira) and the interest of N15,750,000.00 awarded by the court below is hereby set-aside.
What the respondent is due for as held in the leading judgment is N305 Million (Naira) as held in the leading judgment to which I subscribe. I shall also not disturb the interest of 10% awarded by the court below on the sum adjudged in favour of the plaintiff/respondent, which is N305 Million as this has the support of the rules of court.

For all that I have said but most especially for the reasoning and conclusion in the leading judgment I also agree that the appeal must be dismissed subject to the deduction of the sum of N100 Million and the interest of N15,750.00 awarded on the sum of N305 Million. I abide by all the consequential orders made in the lead judgment including the order as to cost.

Appeal dismissed.

Appearances