CAPTAIN (RTD) JULIUS A. OMOLE V. COLODENSE NIGERIA PLC.
(2010)LCN/4062(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of November, 2010
CA/I/20/2006
RATIO
EFFECT OF AN UNCHALLENGED ALLEGATION OF FACT
It is an old and quite elementary principle of law that any allegation of fact unless traversed is deemed admitted. See HARRIS V. GAMBLE (1878) CH. D 877; LJ. CH 344; RUTTER V. TREGENT (1879) 12 CH D 758; 48 L.J. Ch. 791. PER STANLEY SHENKO ALAGOA, JCA
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
CAPTAIN (RTD) JULIUS A. OMOLE Appellant(s)
AND
COLODENSE NIGERIA PLC. Respondent(s)
STANLEY SHENKO ALAGOA, JCA (Delivering the lead Judgment): In the High Court of Justice Ogun State of Nigeria holden at Ota, the present Appellant as Plaintiff claimed against the
Respondent as Defendant as per paragraph 15 of the statement of claim dated 14th September 2002 and filed on the 18th September 2002 as follows –
(i) Total Retirement Benefits as conveyed to the Plaintiff by the Defendant company vide letters CFA/JU/321 06/98 of 30/6/98 and CFA/JU/18/98 of 4/12/98 respectively – N6,635,795.31.
(ii) Accrued interest at the prevailing Bank rate of 25% on the due sum of (i) above with effect from 1st January 2000 to June 30th 2002 in accordance with paragraph (c) of the Defendant’s letter CFA/JU/321/06/98 of 30/6/98.
(iii) Savings deducted from the Plaintiff’s monthly salaries for onward transfer to the Defendant’s Cooperative Thrift and Credit Society.
(iv) Accrued interests on the unpaid Retirement Benefits of N6,635,795.31 from the month of July 2002 at the prevailing Bank rate of 25% until Judgment is given and thereafter until payment is effected.
The Respondent (then Defendant) filed a statement of defence dated the 16th December 2002 and filed on the 17th December 2002 while the then Plaintiff (now Appellant) filed a Reply to the Statement of Defence dated the 6th January 2003 and filed on the 7th January 2003. Pleadings having been thus filed and exchanged the case proceeded to be heard.
What can be culled from the statement of claim are that the Appellant, a retired Executive Director of the Respondent joined the services of the Respondent as Corporate Affairs Manager on the 31st December 1983 and was promoted to the position of Company Secretary in 1984 and Executive Director/Company Secretary in 1985. The Appellant served a notice of Voluntary Retirement dated 20th April 1998 on the Respondent giving the Respondent the required six months notice of his intention to retire from the services of the Respondent with effect from the 31st October 1998.
The Appellant averred that the Respondent by its letter CFA/JU/32/06/98 dated 30th June 1998 accepted the Appellant’s Notice of Retirement and informed the Appellant that his retirement would take effect from the 1st November 1998. The Appellant further averred that in the said letter CFA/JU/32/06/98 dated 30th June 1998, the Respondent asserted that 30% of the Appellant’s terminal benefits would be paid to him by the 31st October 1998 while the balance thereof would be paid in three equal installments before the end of 1999. The Respondent Company also agreed to pay interests at the prevailing bank rate on any outstanding payment unpaid by the 31st December 1998. The Respondent, Appellant contended, by its said letter CFA/JU/32/06/98 dated 30th June 1998 demonstrated its appreciation for the Appellant’s relentless and selfless service by retaining the Appellant on contract appointment after his retirement with effect from 1st November 1998 as per Respondent’s letter dated the 1st July 1998. Appellant went on further to aver that in furtherance to its letter accepting the Appellant’s retirement, the Respondent conveyed the total retirement benefits with details and breakdown to the Appellant by its letter CFA/JU/18/12/98 dated 4th December 1998 and the net payable to the Appellant is N6,635,795.31 (Six million, six hundred and thirty five thousand, seven hundred and ninety five naira, thirty one kobo). The Appellant went on to say that after he had waited patiently but to no avail for the payment of the 30% of his Retirement Benefits as stated in the Respondent’s letter CFA/JU/32/06/98 of 30th June 1998, he wrote several letters reminding the Respondent of the delay or failure to effect payment to him as stipulated by the Respondent’s letters. These reminder letters are dated 23rd August 1999, 8th September 1999, and 17th April 2001 in which he made demands for his entitlements from the Respondent Company.
The Appellant averred that he complemented these demand letters with personal visits and calls on the Chairman of the Respondent Company amongst others. Having waited for several years because of his former status in the Respondent Company, the Appellant said he retained the legal services of S.K. Lawal & Co. to take appropriate legal action as a result of which by its letter OMOLE/02/2002 dated the 1st July 2002, the Appellant’s solicitors demanded for the immediate payment of Appellant’s Retirement Benefits with accrued interest thereon. Despite this the Respondent has refused and/or failed to pay the Appellant his Retirement Benefits and entitlements hence the legal action in the court below leading up to this appeal.
The Respondent in its statement of defence averred that by virtue of the position attained by the Appellant, all matters relating to the services or otherwise of the Appellant were to be discussed and determined by the Board of the Respondent before approvals are made and that the purported resignation and acceptance of resignation as purportedly conveyed to the Appellant were the collusive efforts of the Appellant and the then Managing Director and that the Board of the Respondent did not authorize the letter purporting to accept the resignation of the Appellant. Respondent contended that the letter purporting to convey acceptance of Appellant’s resignation was unauthorized by the board and same also was the award of interest to the Appellant on whatever the former Managing Director calculated on his own to be the entitlement accruing to the Appellant. Respondent submitted further that the entitlement to the Appellant was unrealistic as it was unimaginably inflated.
As earlier stated the matter went on to be heard with evidence adduced along the lines highlighted in the pleadings of the parties. A number of exhibits were tendered and admitted and thereafter addresses of counsel were taken. In its considered judgment delivered on the 17th June 2004, Onafowokan J held that, “The Plaintiff’s claim fails in its entirety and is dismissed”. It is this judgment that is the subject of appeal by the Plaintiff turned Appellant. The Appellant’s Notice of Appeal dated the 28th July 2004 and filed on the 6th August 2004 is contained at pages 62 and 63 of the Record of Appeal.
The Appellant by a motion on Notice dated the 15th February 2007 and filed on the 22nd February 2007 and brought pursuant to order 3 Rule 16 of the then Court of Appeal Rules 2002 sought for this court’s order to amend the notice of appeal in the manner contained in a proposed Amended Notice of Appeal attached as exhibit A and to deem a filed copy of the Amended Notice of Appeal dated the 15th February 2007 and filed on the 12th June 2007 as properly filed and served on the Respondent. This application was moved by Appellant’s counsel and granted by this court on the 28th May 2007 the effect being that the Amended Notice of Appeal supersedes the original Notice of appeal dated the 28th July 2004 and filed on the 6th August 2004. The Amended Notice of Appeal upon which this appeal is predicated is reproduced below –
AMENDED NOTICE OF APPEAL
TAKE NOICE that the Plaintiff/Appellant being dissatisfied with the Judgment of honourable Justice O. A. Onafowokan sitting at Ota Judicial Division of Ogun State which Judgment was delivered on 17/06/04 doth hereby appeal to the Court of Appeal, Ibadan upon the grounds set out in paragraph 3 and will at the hearing of the Appeal seek the reliefs set out in paragraph 4.
And the Plaintiff/Appellant further state that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. PART OF THE JUDGMENT OF THE LOWER COURT COMPLAINED OF:-
The whole judgment.
3. GROUNDS OF APPEAL (1) The Learned trial Judge erred in rejecting claim of N6,635,795.31 admitted as due to Plaintiff/Appellant in Exhibit “F”.
PARTICUTARS OF ERROR: (i) The calculation in Exhibit F was voluntarily made by the Defendant/Respondent.
(ii) The defence cannot disproof Exhibit F by the contents of Exhibit K.
(iii) The Concession in cross examination of the sums of N152,748.00, N548,000.00 as ticket allowance, N72,000.00 as steward allowance cannot defeat the entire amount and calculation in Exhibit F.
(2) The Learned trial Judge having held that the Defendant/Respondent both in pleadings and in evidence could not dispute the Retirement notice of the Appellant and his right to his retirement benefits erred in Law to reject the appellant’s claim purely because of paragraph 10 of the Statement of Defence.
(3) The Learned trial judge having held that the appellant’s Notice Exhibit R is valid erred in Law in rejecting the claims in paragraphs 15(b) and 15(d).
(4) The Learned trial Judge erred in law and misdirected himself in disregarding the Evidence of the Plaintiff himself in proof of the claim.
Particulars:
a. plaintiff’s testimony is “ipse dixit”
b. Plaintiff’s testimony stood independently of exhibit F.
4. RELIEFS SOUGHT FROM COURT OF APPEAL
Setting aside the Judgment of Onafowokan J delivered on 17/06/04 and entering Judgment in favour of Plaintiff/Appellant.
5. PERSONS DIRECTLY AFFECTED BY THE APPEAL:
NAMES ADDRESSES
1. CAPTAIN JULIUS A. OMOLE C/O COUNSEL;
OLUSOJI OMOLE ESQ,
ROM CHAMBERS,
8/10 BROAD STREET,
LAGOS.
2. COLODEN NIG PLC C/O COUNSEL
OMOTAYO ADETONA & CO
“OLUGBOGBO CHAMBERS”
NASCO HOUSE (2ND FLOOR)
29 BURMA ROAD,
LAGOS.
DATED THIS 15TH DAY OF FEBRUARY, 2007
(SGD)
OLUSOJI OMOLE ESQ
ROM CHAMBERS
13TH FLOOR, WESTERN HOUSE
8/10 BROAD STREET, LAGOS.
FOR SERVICE ON:
OMOTAYO ADETONA & CO
“OLUGBOGBO CHAMBERS”
NASCO HOUSE (2ND FLOOR)
29 BURMA ROAD, LAGOS.”
From the four Grounds of Appeal contained in the Amended Notice Of Appeal, the appellant in his Brief of Argument dated the 15th February 2007, filed on the 22nd February 2007 but deemed properly filed and served on the Respondent on the 5th May 2009 following the grant by this Court on that day of a motion on Notice to extend time for the Appellant to file his Brief of Argument and to deem an already filed Brief of Argument as properly filed and served, distilled the following three issues for the determination of this Court viz:-
(i) “Was the Plaintiff (appellant) entitled to rely on the computation of Plaintiffs entitlements made in exhibit F by the Defendant’s (Respondent) Managing Director in proof of Plaintiff’s case and calculation of Plaintiff’s entitlements?”
(ii) “Can the Respondents dispute Appellant’s entitlements having admitted on pleadings that appellant is entitled to retirement benefits and not proffering any further contrary calculation?”
(iii) “Was the trial Judge right to totally discountenance the oral ipse dixit of the Plaintiff/Appellant?”
These issues are contained in paragraph 2.0 at page 3 of the said Brief of Argument.
The Respondent in its Brief of Argument dated the 24th June 2009 and filed on the 26th June 2009 formulated in paragraph 3 at page 3 of the Respondent’s Brief of Argument the following three issues for the determination of this Court viz:-
1. Whether or not the Plaintiff/Appellant proved his case to entitle him to the judgment of the court considering the paucity of evidence before the trial court.
2. Whether it is the Respondent that will prove the appellant’s case to entitle him to judgment of the trial court.
3. Whether it lies in the mouth of the appellant to challenge the exercise of discretion of the lower court who (sic) has the opportunity of observing the demeanour of the appellant in the witness box.
This appeal came up for hearing on the 27th September 2010. Counsel for the Appellant O.O. Omole adopted and relied on the Appellant’s said Brief of Argument already referred to as well as a Reply Brief of the Appellant dated the 10th July 2009 and filed on the 13th July 2009 which Reply Brief is in reply to the Respondent’s Brief of Argument and urged this court to allow the appeal and set aside the judgment of the lower trial court. J. S. Awhana, counsel for the Respondent equally adopted and relied on the Respondent’s Brief of Argument already referred to and urged this court to uphold the judgment of the lower trial court.
Concerning the totality of the facts and evidence adduced in this case, I consider issues 1 & 2 formulated by the appellant to be more appropriate in deciding this appeal. The problem I find with the issues formulated by the Respondent especially issues 1 and 2 is that there appears to be a conclusion already that the burden of proof in this case lies with the appellant. Whether this position is true or not will depend on the facts and evidence led. Appellant has argued Issues 1 and 2 together. Counsel submitted that nowhere in the entire proceedings has the Respondent set out the “correct” calculation of what cannot be disputed as appellant’s benefits. Appellant went further to submit that the burden of proof shifted as soon as the Respondent disputed the figures contained in Exhibit “F” which was calculated by the Respondent’s accountants and signed by the Respondent’s Managing Director. He who asserts must prove. Counsel submitted that the only proper course was to hold the Respondent bound by the Representations made by the then Chief Executive of the Respondent. Reliance was placed on METAL IMPEX V. A.G. LEVENTIS & CO. LTD (1976) NSCC 76. Counsel submitted that it was wrong for the court to come to the conclusion that it was the duty of the appellant to prove what the Respondent has asserted.
Appellant’s Counsel submitted that the trial Judge was right in his stated principle of law that Plaintiff must succeed on the strength of his case but did not consider also the relevant principle that a Plaintiff succeeds on the preponderance of evidence and not on weakness of the defence UNLESS he finds in the evidence of the Defendant facts which strengthen the Plaintiffs case. Reliance was placed on the following cases – JANG V. DARIYE (2003) 15 NWLR (PART 436) 843; AKINOLA V. OLUWO (1962) 1 SCNLR 352; WOLUCHEM V. GUDI (1981) 5 SC 291 at 467.
Counsel further submitted that the trial court disregarded the statement of Claim on evaluation of evidence that where evidence emanating from a Defendant supports the Plaintiff’s case, such evidence must be treated as an admission which the Plaintiff is entitled to rely on as further re-enforcement of his case. Reliance was placed on the following cases ADEBAMBO V. OLOWOSAGO (1985) 3 NWLR PART II Page 207; ELEWUJU V. ONISAODU (2000) 3 NWLR (PART 647) 95 at 119; AKINOLA V. OLUWO (1962) 1 SCNLR 352; OKAFOR V. IDIGO (1984) 1 SCNLR 481; AKINTOLA V. SOLANO (1986) 2 NWLR (PART 29) page 598; OLATUNJI V. ADISA (1995) 2NWLR (PART 376) page 167. Counsel went further to say that based on these decisions Exhibit F was undoubtedly an admission made by the Defendants which should have been given weight to as evidence against the Defendant. Counsel further relied on the following cases – CAPPA & D’ALTERTO LTD. V. AKINTILO (2003) 9 NWLR 49; SEISMOGRAPH SERVICES LTD. V. EYUAFE (1976) 5 NWLR PART 449 page 381; MOGAJI V. CADBURY (NIG) LTD. (1985) 2 NWLR (PART 7) 393.
Respondent has submitted in its Brief of Argument that the Appellant did not prove its case by reliable evidence to entitle him to the judgment of the trial court. Counsel submitted that by virtue of sections 135, 136 and 137 of the Evidence Act the burden of proof in civil cases is on the plaintiff i.e. Appellant. Counsel relied on BUHARI v. OBASANJO (2005) 2 NWLR (PART 910) 256 at page 505 paras B-C & C-D where the Supreme Court held as follows,
“The burden of proof means that where a given allegation whether affirmative or negative forms an essential part of the party’s case the proof of such allegation rests on that party.”
Counsel went on to rely on a plethora of authorities to the effect that he who asserts must prove. A Compendium of such cases is as follows – KUTO V. ALASE (2005) 17 NWLR (PART 955) 625; KATE ENTERPRISES LTD. V. DAEWOO (NIG) LTD (1985) 2 NWLR (PART 15) 116; OJOMO V. IJEH (1987) 4 NWLR (PART 64) 216; OKECHUKWU & SONS V. NDAH (1967) NWLR 368; (1962) 1 SCNLR 352. Respondent went further to submit that the claims of the appellant are special damages which must be averred and proved by the appellant. Reliance was placed on A.G. OYO STATE V. FAIRLAKES HOTELS (NO.2) (1989) 5 NWLR (PART 121) 255 at 277-278 paras H-A; ODUMOSU V. ACB (1976) 11 SC 5B. Counsel submitted that in the instant case the Appellant failed to prove with credible evidence his entitlements in the trial court below. Counsel went further to submit that a Plaintiff in civil proceedings must succeed on the strength of his case and not on the weakness of the defence. He must plead and prove relevant facts that will entitle him to judgment and where he fails to do so, his claim must fail. Reliance was placed on NWOGBO V. NJOKU (1990) 3 NWLR (PART 140) 570 at 581; ADENIRAN V. OLAGUNJU (2001) 17 NWLR (PART 741) 169 at 183 paras D-E. Counsel went further to submit that the issue of the letter having been unilaterally written by the Managing Director without the authorization of the Board was not challenged by the Appellant during cross-examination, and not being so challenged by the Appellant, it should be taken as fact that no board meeting authorized Appellant’s retirement.
Let me commence this discourse by saying that the learned trial Judge was absolutely right when he stated in his Judgment at page 56 of the Record as follows,
“The only question to be resolved is whether the plaintiff is indeed entitled to the amount conveyed to him by the Defendant by its letter of 4/12/98 taking cognizance of the averments in paragraph 10 of the statement of defence that the claim is “unimaginably inflated and does not represent whatever may be due to the Plaintiff.”
This singular statement by the learned trial Judge appears to me to be the pivot around which revolves all the arguments in this case. Appellant’s claim as per the Respondent’s letter CFA/JU/18/12/38 dated 4th December 1998 and referred to in paragraph 8 of the statement of claim is N6,635,795.31 (six million, six hundred and thirty five thousand, seven hundred and ninety five naira, thirty one kobo.
Who her the burden of proving that the Appellant is entitled to that amount of money? The learned trial Judge then went on to say at page 56 of the Records,
“The rule is that the burden of proof rests on the party in this case the Plaintiff who substantially asserts the affirmative. The Plaintiff has the obligation to plead and to prove that the alleged total retirement benefits claimed in paragraph 15 of the statement of claim and contained in the letter of 4/12/98 is his entitlement in accordance with his terms and conditions of service with the Defendant otherwise he would fail. See sections 135 & 136 of the Evidence Act”
(Underlining mine for emphasis)
In so stating, the learned trial Judge reasoned that in civil cases the burden is always on the Plaintiff. Could his Lordship have been right? It is instructive at this stage to examine the provisions of sections 135, 136 and 137 of the Evidence Act.
Section 135(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
Section 135(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
Section 136- The burden suit or proceeding of proof in a lies on that person who would fail if no evidence at all were given on either side.
Section 137(1)-In civil cases the burden of first proving the existence of a fact lies on the party against whom judgment of the Court would be given if no evidence were produced on either side regard being had to any presumption that may arise on the pleadings.
The long line of judicial authorities already supplied by the Respondent in its Brief of Argument is apposite that he who asserts must prove. Need it always be the plaintiff? Do the provisions of Sections 135, 136 and 137 of the Evidence Act suggest so? The facts of this case are clear. The Appellant who was in the employment of the Respondent retired from its services and claimed to have been entitled to a total retirement package of N6,635,795.31 as per the Respondent’s letter CFA/JU/18/12/98 dated 4th December 1998. That letter emanating from the Respondent to the Appellant had given a detailed breakdown of that sum of N6,635,795.37. The Respondent while not contesting the fact that the said letter containing the Appellant’s retirement benefits were indeed communicated to the Appellant contends –
(i) That the Board of the Respondent did not accept the purported retirement/resignation of the Appellant which the learned trial Judge quickly dismissed and in any case is not part of the subject matter of appeal and;
(ii) That the amount of N6,635,795.31 contained in the letter to the Appellant by the Respondent as his total retirement package was unrealistic and grossly exaggerated.
The true position as can be explained in very simple language is that initially the burden was on the Appellant to prove that he was indeed entitled to the sum of N6,635,795.31 as his total retirement package. This burden the Appellant discharged when he produced the Respondent’s letter – Exhibit F to him (Appellant) stating the correctness of this figure. If the Respondent now picks holes with the calculation contained in the said letter and refers to a lesser sum of money than the Sum communicated by the Respondents themselves to the Appellant, the onus of now proving that the new and now reduced sum of money is the proper sum that enures to the Appellant shifts to the Respondent. That the learned trial Judge did not appreciate the fact that the burden could and had in fact shifted to the Respondent to show that the Appellant was not entitled to the sum of N6,635,795.31 but to a lesser sum is unfortunate. That this is the true position of the law is borne out by section 139 of the Evidence Act which provides that – “… the burden may in course of a case be shifted from one side to the other.” How far has the Respondent discharged this burden to show that the Appellant is entitled to a lesser sum than that contained in the Respondents letter? Suffice it to say that the statement of defence is completely bereft and bare of this vital piece of information. The learned trial Judge was aware of this when in his Judgment at page 55 of the Record he stated thus,
“Though the Defendant filed an 11 paragraph statement of defence which in my opinion is not only evasive but more of an admission of the Plaintiffs allegations than a traverse and as a consequence no issue was joined with the Plaintiff on a substantial part of his pleadings.
(Underlining mine for emphasis).
Why then did the trial Judge having appreciated this simple principle of law chose to make a complete volta face The learned trial Judge has stated that the Appellant predicated his claim only on exhibit E which, is acceptance of Notice of retirement and exhibit F which is also acceptance of retirement Notice and the total of Appellant’s retirement benefits. He then went on to state thus,
“What then is the Plaintiff’s total package at the time of retirement? Not a word of that is mentioned in the Plaintiffs pleadings. It is instructive to note that the Plaintiff other than relying on the computation in Exhibit F failed and neglected to plead facts relating to his salary, allowances and or total package as Executive Director. For the Plaintiff to show that the computation in Exhibit F is not unimaginably inflated or to show that he is entitled to any sum at all as his retirement benefits it behoves him to plead with particularity his salaries, allowances or his total package as at the time of his retirement which facts are within his knowledge and forms the foundation of his case…”
With all due respect to the learned trial Judge that cannot be correct. The Respondent had stated to the Appellant in Exhibit F that his total retirement benefits was N6,635,795.31. The Respondent’s Accountants had arrived at that figure based on their own calculations. Appellant did not contest this figure and his claim was for the payment of this sum and attendant interest which may have accrued. Appellant had no business pleading his salary, allowances etc as erroneously held by the learned trial Judge. If the Respondent disputed the figure that they themselves communicated to the Appellant in Exhibit F and are now relying on a different and lesser figure as the Appellant’s total retirement package, where in their statement of defence did they state this different figure? Where in their evidence did they disclose this new computation? The burden to do so clearly rested on the Respondents and not the Appellant.
A word must now be said about the alleged collusion between the Appellant and the erstwhile Managing director who purportedly accepted the retirement letter of the Appellant as averred in paragraph 4(c) of the statement of Defence at page 36 of the Records. Apart from the fact that this notion has been dismissed by the learned trial Judge who herd that Appellant’s retirement letter need not have been formally accepted by the Board of the Respondent to take effect, there is the imputation of crime which must be proved by the Respondent BEYOND REASONABLE DOUBT. This simple regal principle is well enunciated in a number of judicial authorities and section 138(1) of the Evidence Act which provides that,
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.”
No proof let alone proof beyond reasonable doubt has been shown by the Respondent. The learned trial Judge quite rightly held, that what appears as Respondent’s statement of defence is more of an admission of the Appellant’s claim than a traverse. It is an old and quite elementary principle of law that any allegation of fact unless traversed is deemed admitted. See HARRIS V. GAMBLE (1878) CH. D 877; LJ. CH 344; RUTTER V. TREGENT (1879) 12 CH D 758; 48 L.J. Ch. 791. A look at the Respondent’s statement of defence shows that in addition to specifically admitting paragraphs 1, 2 and 3 of the Appellant’s statement of claim, paragraphs 4, 5, 6, 7, 8, 9, 10 and 15 referred to in paragraph 2 of the statement of defence were either not or insufficiently traversed and are deemed admitted. Cases are fought, lost and won on parties’ pleadings and evidence adduced. The statement of defence as a whole is not such as to have been sufficient traverse of the Appellant’s claim and I so hold.
The appeal therefore succeeds and is allowed and the Judgment of Onafowokan J. of the High court of Ogun state in suit No. HCT/266/02 delivered on the 17th June 2004 is hereby set aside and Judgment is entered for the Appellant in the sum of N6,635,795.31 (Six million, six hundred and thirty five thousand, seven hundred and ninety five naira, thirty one kobo) with accrued interest from July 2002 at the rate of 25% until payment is effected.
SIDI DAUDA BAGE, J.C.A.: I have read before now the judgment just delivered by my learned brother, S. S. ALAGOA, J.C.A.
I entirely agree with the reasoning and the conclusion reached. The appeal succeeds and allowed by me.
I abide by all the consequential orders made in the said lead judgment including the order on Costs.
MODUPE FASANMI, J.C.A.: I had the advantage of reading in advance the judgment of my learned brother S. S. Alagoa J.C.A.
I agree that the appeal succeeds and it also allowed by me. I abide with the consequential order made.
Appearances
O.O. Omole Esq.For Appellant
AND
T. S. Awhana Esq.For Respondent
