UNION BANK OF NIGERIA PLC v. CHIEF OLUDOTUN OLAJIDE KOLEOSO
(2019)LCN/13611(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of July, 2019
CA/L/227/2008
RATIO
INTERPRETATION OF DOCUMENTS: IN INTERPRETING DOCUMENTS, THEY MUST BE READ AS A WHOLE AND NOT IN PARTS
It is abecedarian that in interpreting a document, the document must be read as a whole and not parts in isolation, and that different parts of document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts. See UNILIFE DEVELOPMENT CO. LTD vs. ADESHIGBIN (2001) 2 SCNJ 116, MBANI vs. BOSI (2006) 11 NWLR (PT 991) 400, ADETOUN OLADEJI NIG LTD vs. NIGERIAN BREWERIES PLC (2007) 1 SCNJ 375, AGBAREH vs. MIMRA (2008) 2 NWLR (PT 1071) 378 and NIGERIA ARMY vs. AMINUN-KANO (2010) 5 NWLR (PT 1188) 429. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
WHEN IS THE DATE OF TRIAL
The date of trial is the date on which the trial actually commenced. Any subsequent date for trial to continue is an adjourned date and not the date of trial; this is so notwithstanding that the business on the said subsequent date is actually further hearing in the matter. See OKORODUDU vs.OKOROMADU (1977) LPELR (2495) 1 at 9.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
A COURT IS BOUND BY RELIEFS SOUGHT BY PARTIES
In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
It is elementary law that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party… PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
A COURT CAN ONLY GRANT RELIEFS CLAIMED BY PARTIES AND NOTHING MORE
The position of the law is clear that a Court of law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.
It was therefore wrong for the lower Court to have awarded damages up to 2005. Any award of damages for loss of earnings as proven by the evidence ought to be for the period claimed, in this instance, going by the date when the breach occurred, from 1989 to 2000. The award for 1988 and from 2001 to 2005 cannot be allowed to stand: EKPENYONG vs. NYONG (supra). PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
SPECIAL DAMAGES: THEY HAVE TO SPECIALLY PLEADED
It is hornbook law that special damages has to be specifically pleaded and particularized and proved by the evidence. See DANIEL HOLDINGS LTD vs. UBA PLC (2005) 13 NWLR (PT 943) 533 at 547 & 552, RCC (NIG) LTD vs. ROCKONOH PROPERTIES CO. LTD (2005) 10 NWLR (PT 934) 615 at 637 and ADECENTRO (NIG) LTD vs. COUNCIL OF OAU (2005) 15 NWLR (PT 948) 290 at 316. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC – Appellant(s)
AND
CHIEF OLUDOTUN OLAJIDE KOLEOSO
(Carrying on business as O. O. Koleoso & Co.) – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The centrepiece of this matter is the Retainership and Service Agreement dated March 12, 1985 and made between the Respondent and the defunct Universal Trust Bank PLC. By the said Agreement, the Respondent was appointed the sole external Solicitors to carry out all legal works which the Bank may from time to time send to him. By a letter dated 15th November 1988, the Bank communicated to the Respondent its decision to engage the services of additional external Solicitors; and informed the Respondent that it had terminated the Agreement which specified that the Respondent be retained as the sole external Solicitors.
The Respondent contending that the action was wrong, unlawful and a unilateral repudiation of the Retainership and Service Agreement instituted proceedings before the High Court of Lagos State in SUIT NO. LD/3386/1994: CHIEF OLUDOTUN OLAJIDE KOLEOSO (Carrying on business as Messrs O. O. Koleoso & Co.) vs. UNIVERSAL TRUST BANK PLC. The reliefs claimed by the Respondent as endorsed in the Amended Statement of Claim filed on 5th February 2004 are as
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follows:
?I. Special damages for loss of earnings in such amount less 15% as this Honourable Court determines as having been expended or ought to have been expended by the Defendant whether from its funds or from those of its customers in payment for legal services rendered to the Defendant by other legal practitioners within Nigeria in respect of secured credit transactions and in respect of litigation and other legal matters from the 15th of November 1988 till the date of trial.
II. In the alternative to prayer 1 the sum of N2,000,000.00 (Two Billion Naira) being general damages for breach in November 1988 and the continuous breach since then by the Defendant of the retainership and service agreement entered into between the Plaintiff and the Defendant on 12th March, 1985.
III. AN ORDER compelling the Defendant to specifically perform the terms of the retainership and service agreement aforesaid by assigning all further legal work of the Defendant from the date of judgment to the Plaintiff for as long as the Plaintiff remains in existence and is ready, willing and able to provide all legal services which the Defendant may require or such
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general damages as this Honourable Court may award in lieu of the order for specific performance claimed herein.?
(See page 142 of Volume I of the Records)
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Pleadings were filed and exchanged; issues joined and trial started on 19th December 2000. In the course of the proceedings, Universal Trust Bank PLC was acquired by Union Bank of Nigeria PLC, the Appellant on record. In his final written address at the lower Court, the Respondent abandoned the reliefs for specific performance or general damages in lieu of specific performance. See paragraph 8.25 on page 469 of Volume II of the Records.
In its judgment, the lower Court, Coram Judice: A. A. Alabi, Chief Judge, entered judgment in favour of the Respondent and awarded damages in the total sum of N534,125, 351.66k in his favour. Dissatisfied with the judgment which was delivered on 8th December, 2006, the Appellant appealed against the same. The judgment of the lower Court is at pages 492-501 of Volume II of the Records while the extant Notice of Appeal on which the appeal was argued is the Further Amended Notice of Appeal filed on 11th January, 2017 but deemed as properly filed on 12th May, 2017.
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The Records of Appeal were compiled and transmitted and briefs of argument filed and exchanged by the parties. The briefs on which the appeal was argued are the Appellant?s Amended Brief of Argument filed on 26th May, 2017, the Respondent?s Brief of Argument filed on 12th July, 2017 and the Appellant?s Reply Brief filed on 15th August, 2017. The Respondent?s Brief and the Appellant?s Reply Brief were deemed as properly filed on 18th September 2018. At the hearing of the appeal, learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellant formulated five issues for determination, namely:
?1. Whether the learned trial judge was right when he based his decision on a case unsupported by the Claimant?s/Respondent?s pleadings and evidence (ground 1 of the Further Amended Notice of Appeal).
2. Whether, having regard to the facts of the case and the position of law, the Defendant/Appellant?s letter of 15th November, 1988 constitutes a valid termination of the Retainership and Service Agreement or breach thereof
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and whether the Defendant/Appellant had a right to terminate the Retainership and Service Agreement? (Grounds 2, 3 and 4 of the Further Amended Notice of Appeal).
3. Whether the Claimant/Respondent was entitled to the award of the sum of N534,125,351.66 (Five Hundred and Thirty-Four Million, One Hundred and Twenty-five Thousand, Three Hundred and Fifty-One Naira, Sixty-Six Kobo only) as awarded by the trial Judge. (Ground 5 of the Further Amended Notice of Appeal).
4. Whether the Learned Trial Judge was right to refuse to admit the evidence of the Defendant/Appellant?s only witness upon the witness statement on oath sworn to on 27th January, 2005 (Grounds 6, 7 and 8 of the Further Amended Notice of Appeal).
5. Whether the Retainer Agreement to appoint the Respondent as the Appellant?s sole Solicitor for all its legal matters is not void and unenforceable being contrary to public policy and the Constitution of the Federal Republic of Nigeria 1999 (as amended and the extant laws regulating the relationship between a Legal Practitioner and a client).
Ground 8 of the Further Amended Notice of Appeal).”
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The Respondent on
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his part distilled four issues for determination as follows:
?1. WHETHER THE DECISION OF THE LEARNED TRIAL JUDGE CAN BE ADJUDGED TO BE UNSUPPORTED BY THE RESPONDENT?S PLEADINGS AND EVIDENCE (Distilled from ground 1 of the Amended Notice of Appeal).
2. WHETHER THERE WAS A LAWFUL TERMINATION OF THE SOLE RETAINERSHIP AGREEMENT. IF NOT, WHAT IS THE QUANTUM OF DAMAGES DUE TO THE RESPONDENT AS A RESULT? (Distilled from grounds 2, 3, 4 and 5 of the Amended Notice of Appeal)
3. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO REFUSE TO ADMIT THE EVIDENCE OF THE DEFENDANT/APPELLANT?S ONLY WITNESS UPON THE WITNESS STATEMENT ON OATH SWORN TO ON THE 27TH JANUARY 2005 (Distilled from grounds 6 and 7 of the Amended Notice of Appeal)
4.WHETHER THE RETAINER APPOINTING THE RESPONDENT AS THE APPELLANT?S SOLE EXTERNAL SOLICITOR FOR ALL LEGAL MATTERS IS VOID AND UNENFORCEABLE ON THE GROUND THAT IT IS CONTRARY TO PUBLIC POLICY AND THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AND IF SO, WHETHER THE APPELLANT IS NOT ESTOPPED FROM CONTENDING THAT THE RETAINER IS VOID HAVING BENEFITED FROM THE AGREEMENT. (Distilled from ground 8 of
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the further amended notice of appeal).?
Notwithstanding the disparity in the number of issues nominated by the parties, the issues as crafted are the same in every material particular. This is so because the Respondent?s issue number two is an amalgam of the Appellant?s issue numbers two and three. Accordingly, the issues as formulated by the Appellant will be the lodestar in considering the submissions of learned counsel and determination of this appeal. I would however start with the Appellant?s issue number four which is the same as the Respondent?s issue number three; the issue interrogates whether the lower Court rightly refused to admit the evidence of the Appellant?s only witness. I deem it necessary so to do since the resolution of the same will impact on whether the evidence of the said witness will have to be taken into account while considering the other issues.
ISSUE NUMBER FOUR
Whether the Learned Trial Judge was right to refuse to admit the evidence of the Defendant/Appellant?s only witness upon the witness statement on oath sworn to on 27th January 2005.
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SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant states that it duly filed a witness statement on oath for its witness but that the said witness left the employment of the Appellant before he could adopt the statement on oath. In consequence, it was submitted that the Respondent?s Counsel conceded that he was not going to cross examine the said witness and suggested that the witness statement on oath be allowed as the evidence of the said witness. The lower Court, it was stated, did not object to the procedure adopted by learned counsel only to hold in its judgment that the Appellant did not call any witness which occasioned a miscarriage of justice.
SUBMISSIONS OF THE RESPONDENT?S COUNSEL
The Respondent concedes that the lower Court ought to have made use of the witness statement on oath of the Appellant?s witness, even though the said witness statement did not contain any material fact that would have had any effect on the judgment of the Court.
RESOLUTION OF ISSUE NUMBER FOUR
The Respondent conceded the Appellant?s contention on this issue. The said concession does not however mean that the said issue must willy-nilly
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be resolved in favour of the Appellant. No. It still has to be shown that on the state of the law the issue should be resolved in favour of the Appellant. It is quite possible that the law does not support the position which parties have taken and it will be doing violence to the law if the Court on the basis of the fact that the issue has been conceded proceeds to resolve the same in favour of the Appellant. The Court must still discharge its role of adjudication by examining the state of the law relative to the issue.
The facts on which this issue is predicate
