AHTV & ORS v. SWIFT MOH TRAVELS AND TOURS AGENTS (NIG) LTD & ANOR
(2022)LCN/16118(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, May 25, 2022
CA/ABJ/CV/503/2021
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
1. AFRICA HEALTH TELEVISION LTD (AHTV) 2. TELCOM SATELITES LIMITED (TSTV) 3. DR. BRIGHT IKECHUKWU ECHEFU APPELANT(S)
And
1. SWIFT MOH TRAVELS AND TOURS AGENTS NIG LTD. 2. MOHAMMED GAJI RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE AUTHENTICATION OF COMPUTERS AND ELECTRONIC DEVICES USED IN PRODUCING DOCUMENTS
Now, Section 84 of the Evidence Act deals with authentication of computers and electronic devices used in producing documents. It provides the protocol for the admissibility of computer generated evidence. What it prescribes is that the computer or device used in producing the document must be certified as trustworthy and that it did not malfunction at the time of producing the document. As held by the Supreme Court in DICKSON vs. SYLVA (2017) 8 NWLR (PT 1567) 167 at 219, Section 84 of the Evidence Act is all about ascertaining the authenticity of the device from which the exhibit was produced. Accordingly, the stipulations of Section 84 of the Evidence Act only go to perception of evidence, id est, reception of all available admissible evidence. It is only after perception of evidence that the Court ascertains the credibility of the evidence by weighing the same in the context of the surrounding circumstances of the case. See OLUFOSOYE vs. OLORUNFEMI (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPERS LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ANYAKA vs. ANYAKA (2014) LPELR (24501) 1 at 23-24. The implication of this is that the fact that the Respondents satisfied the requirements of Section 84 of the Evidence Act by filing the Certificate of Compliance, does not eo ipso make the documents credible. Compliance with Section 84 of the Evidence Act only serves to make the documents admissible. PER OGAKWU, J.C.A.
THE DOCTRINE OF PRIVITY OF CONTRACT
The general principle of law based on the doctrine of privity of contract, is that a contract, cannot as a general rule confer rights or impose obligations under it on any person, except the parties to it. In aliis verbis, only parties to a contract can sue or be sued on the contract: MAKWE vs. NWUKOR (2001) 14 NWLR (PT 733) 356, IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT 1420) 96 at 101, REBOLD INDUSTRIES LTD vs. MAGREOLA (supra) and A-G FEDERATION vs. A.I.C. LTD (2000) 4 WRN 96 at 103. In the circumstances of this matter, the parties who can sue or be sued on Exhibit A are SWIFT-MOH TRAVELS AND TOURS LTD and AFRICA HEALTH TELEVISION. No other person, based on the doctrine of the privity of contract, can sue or be sued on the contract, even if it was made for the person’s benefit.
The parties on record in the action are not parties to the contract so they can neither sue nor be sued on the contract. PER OGAKWU, J.C.A.
WHETHER OR NOT A DIRECTOR OF A COMPANY IS AN AGENT OF THE COMPANY
It is hornbook law that the abstraction called ‘company’ or ‘corporation’ is clothed with legal persona distinct and separate from the aggregate personalities of the individual shareholders and officers in charge of its management. See the leading case of SALOMON vs. SALOMON & CO (1897) AC 22 at 51 or (2002) 1 WRN 1. In YESUFU vs. KUPPER INTERNATIONAL N. V. (1996) 5 NWLR (PT 446) 17, the apex Court held that a director of a company is, in the eyes of the law, an agent of the company for which he acts and the general principle of the law of principal and agent would apply. Thus, where a director enters into a contract in the name of or purporting to bind the company, it is the company, the principal, which is liable on it, not the director. See also OKOLO vs. UNION BANK LTD (2004) LPELR (2465) 1 at 31-32, MARINA NOMINEES LTD vs. FBIR (1986) LPELR (1839) 1 at 27 and BULET INT’L (NIG) LTD vs. OLANIYI (2017) LPELR (42475) 1 at 39-40. The 3rd Appellant can therefore not be sued on the contract, neither can the 2nd Respondent sue on it.
On the flip side, where the parties to Exhibit A, are not juristic persons, then an action can be brought by or against such unincorporated entity by suing the alter ego or proprietor doing business as, or trading under the name and style of the said unincorporated entity. See OBIAMULU vs. OGWUEGO (2020) LPELR (51949) 1 at 5-7 and UBA PLC vs. MOHAMMED (2011) LPELR (5063) 1 at 41-43. PER OGAKWU, J.C.A.
WHETHER OR NOT THE COURT CAN REWRITE A CONTRACT FREELY ENTERED INTO BY PARTIES
It is settled law that a Court cannot rewrite the contract freely entered into by the parties, just as it is not part of the function of the Court to make agreements for the parties or to change the agreements as made by the parties. To grant the Respondents’ claim for debt allegedly incurred after the contract had effluxed, would amount to the Court rewriting the contract entered into by the parties by changing the agreement to extend the duration of the contract. This is not the function of the Court. See generally BEST (NIGERIA) LTD vs. BLACKWOOD HODGE (NIGERIA) LTD (2011) LPELR (776) 1 at 23, BABATUNDE vs. BANK OF THE NORTH LTD (2011) LPELR (8249) 1 at 20-21, BFI GROUP CORPORATION vs. BPE (2012) LPELR (9339) 1 at 23-24 and UNION BANK vs. NWAOKOLO (1995) LPELR (3385) 1 at 42.
The contract having expired, the Respondents cannot be suing for alleged debts incurred on a non-existent contract. See MOBIL PRODUCING NIG LTD vs. FIRS (2018) LPELR (45560) 1 at 23-25, WENDE vs. GOVERNOR OF BENUE STATE (2019) LPELR (46869) 1 at 16. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondents herein were the Plaintiffs before the High Court of the Federal Capital Territory, Abuja in an action on the undefended list in SUIT NO. FCT/HC/CV/3171/2020: SWIFT MOH TRAVELS AND TOURS AGENTS NIG LTD & ANOR vs. AFRICA HEALTH TELEVISION LTD (AHTV) & ORS. The Respondents claimed the following reliefs:
“a. The sum of N3,001,453.86k (Three Million One Thousand Four Hundred and Fifty-Three Naira Eighty-Six Kobo Only), being the outstanding indebtedness of the Defendants to the Plaintiff arising from airplane tickets issued by the Plaintiffs to the Defendants at their request between 30th March 2018 to 23rd May 2018.
b. Interest on the said N3,001,453.86k at the rate of 22% as general damages to the Plaintiff from the date of the debt for every month until judgment is delivered and 10% interest per annum on the judgment sum from the date of the delivery thereof until the final liquidation by the defendants.
c. The sum of N600,000.00 (Six Hundred Thousand Naira Only) as cost of hiring the Plaintiff’s Counsel and filing this action.”
The Appellants, who were the Defendants at the lower Court, did not file any Notice of Intention to Defend the action as enjoined by the Rules of the lower Court, whereupon judgment was entered in favour of the Respondents on 6th July 2021 in the following terms:
“This Court as a result, make the following orders:
1. That the defendants, 1st 2nd and 3rd Defendants jointly and severally pay the 1st and 2nd Plaintiffs/Claimants the sum of (N3,001,453,86k) being the outstanding indebtedness of the defendants for tickets issued by the Plaintiffs to the Defendants between 30th March 2018 and 23rd May 2018 at the Defendants request.
2. Pay the interest of 22% on the said sum of (N3,001,453,86k) as general damages to the plaintiffs/Claimants from the date of the debt for every month until judgment is delivered. And at 10% from the date of judgment thereafter until final liquidation of the total sum by the Defendants.
3. No cost for hiring and filing of this action is awarded.”
The Appellants, miffed by the judgment of the lower Court appealed against the same by Notice of Appeal filed on 19th July 2021. The judgment of the lower Court is at pages 92-98 of the Records of Appeal, while the Notice of Appeal is at pages 99-111 of the Records of Appeal. The Records of Appeal and Supplementary (Additional) Record of Appeal were compiled and transmitted and the parties filed and exchanged briefs of argument, which learned counsel adopted and relied upon at the hearing. The briefs on which the appeal was argued are:
1. Appellants’ Joint Brief of Argument filed on 16th September 2021.
2. Respondents’ Brief of Argument filed on 6th December 2021, but deemed as properly filed on 7th December 2021.
3. Appellants’ Joint Reply Brief filed on 17th December 2021.
The Appellants distilled five issues for determination in the appeal, namely:
“1. Whether from Exhibit ‘A’ before the Court, the parties without providing alternative addresses for service are not bound to be served at the respective addresses contained therein, any originating Court process or any other Court process emanating from Exhibit ‘A’. [FROM GROUND ONE]
2. Whether or not non-parties to the contract, Exhibit ‘A’ , before the trial Court, can sue and be sued on the contract or derive any benefit or burden from it. [FROM GROUNDS 2, 3, 4 & 5]
3. Whether by the provisions of Clause 4 of Exhibit ‘A’, without evidence of renewal, the contract between the parties had not elapsed by effluxion of time as at 23rd of October, 2017. [FROM GROUND SIX]
4. Whether Exhibit ‘C’ before the learned trial Court, without further evidence, earned the high probative essence the learned trial Court placed on it. [FROM GROUND SEVEN]
5. Whether the learned trial Court was right in awarding an unproved pre-judgment interest at twenty-two (22) per cent per month against the appellants when the pre-judgment interest was not provided for in the contract, Exhibit ‘A’, before the learned trial Court. [FROM GROUNDS EIGHT & NINE]”
The Respondents equally formulated five issues for determination as follows:
“1. Whether service of the Court originating process on a company’s business address other than the company’s registered office address or any branch of the company’s known business address could be deemed as proper service? (GROUND ONE)
2. Whether with or without a written Contract Agreement, parties who mutually entered into a contract cannot come before the Court of Law to enforce their individual rights? (GROUND TWO, THREE, FOUR and FIVE)
3. Whether a principal officer of a corporate organization who is the alter ego or a body corporate which participated in a contract and in enjoying the benefits of the said contract can sue or be sued as a necessary party to a contract? (GROUND SIX)
4. Whether Exhibit C, titled; RECORD OF BUSINESS TRANSACTION, SWIFTMOH TRAVELS AND TOURS AGENTS NIG LTD can be relied upon by the trial High Court to grant the claims of the Respondents’? (GROUND SEVEN)
5. Whether the trial learned Judge was right in awarding a twenty-two percent (22%) interest on the judgement sum of N3,001,453.86k as general damages to the Respondents from the date of the debt and for every month until judgment was delivered on the 6th July 2021? (GROUNDS EIGHT AND NINE).”
The issues which the parties have thrust up for determination are virtually the same. The said issues are concise and apt; but it is on the basis of the issues as crafted by the Appellants that I will consider and resolve this appeal. I will consider the Appellants’ issue number two alongside the Respondents’ issue number three as the Respondents’ said issue number three is also similar to Appellants’ issue number two.
ISSUE NUMBER ONE
Whether from Exhibit ‘A’ before the Court, the parties without providing alternative addresses for service are not bound to be served at the respective addresses contained therein, any originating Court process or any other Court process emanating from Exhibit ‘A’.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the Respondents’ action was based on the contract document, Exhibit A to the affidavit in support of the writ of summons, and so the Court processes ought to be served on the parties to the contract at the address stated in the said Exhibit A. It was posited that Exhibit A was entered into between the 1st Respondent and an NGO, which was not sued. It was stated that the 2nd Appellant was not a party to Exhibit A and therefore it was wrong for processes for all the parties to be purportedly served at the 2nd Appellant’s address.
The Appellants refer to Section 728 (1) of the Companies and Allied Matters Act, 2020, and submit that all communications and notices are to be served on a company at its registered office. It was opined that the provisions of Order 7 Rule 8 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 are made subject to the provisions of the Companies and Allied Matters Act (CAMA) and so it is the provisions of Section 728 (1) of the Companies and Allied Matters Act (CAMA), 2020 that governs service on a company and so the service on a company must be at its registered office. The cases of NDIC vs. OKEM ENTERPRISES LTD (2004) LPELR-1999 (SC) and EBHOTA vs. PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD (2006) 7 SC (PT III) 8 were referred to on the meaning of the phrase “subject to”.
It was asserted that even though the 3rd Appellant was not a party to Exhibit A, any substituted service on him as ordered by the lower Court ought to be at the last known address on Exhibit A. It was maintained that the originating processes could not have compelled the attendance of the Appellants in Court, since the service on them was non-service which went to the jurisdiction of the Court and amounted to a denial of fair hearing. The cases of AJIBOLA vs. SOGEKE (2003) 9 NWLR (PT 826) 494, HERITAGE BANK LTD vs. BENTWORTH FINANCE (NIG) LTD (2018) 9 NWLR (PT 1625) 420, AHMED vs. AHMED (2013) 15 NWLR (PT 1377) 274, FBN PLC vs. TSA INDUSTRIES LTD (2010) 4-7 SC (PT I) 242, ARAKA vs. EJEAGWU (2001) 12 SC (PT I) 99, MOHAMMED vs. OLAWUNMI (1990) 4 SC 40, among other cases were relied upon. It was opined that the correctness of the decision of the lower Court is immaterial, since the procedure that led to the decision is flawed.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
It was submitted that the 1st and 2nd Appellants are limited liability companies with the 3rd Appellant as their alter ego. It was posited that the Court processes were properly served on them at their known business address, since service did not necessarily have to be effected only at the address on the contract, Exhibit A. The cases of 7UP BOTTLING CO LTD vs. ABIOLA & SONS BOTTLING CO. LTD (1994) LPELR-14099 (CA) at 22-27 and DUWIN PHARMACEUTICAL & CHEMICAL CO LTD vs. ESAPHARMA SRL ITALY (2017) LPELR-42695 at 23-25 were called in aid.
Relying on Section 104 of the Companies and Allied Matters Act, 2020 and Order 7 Rule 8 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018, it was stated that service of the Court process was properly effected on the Appellants as Section 728 (1) of the Companies and Allied Matters Act, 2020 relied on by the Appellants, does not relate to service of Court process.
APPELLANTS’ REPLY ON LAW
The Appellants concede in their Reply brief that the specific provision of Section 104 of the Companies and Allied Matters Act, 2020 on service of Court process, will prevail over Section 728 (1) of the Companies and Allied Matters Act, 2020 which deals with communication and notices to a company. It was however asserted that it does not remove the principle of privity of contract and would not allow the Respondents to go to any registered or business office of a non-party to the contract, different from the address on the contract, and purport to serve Court process.
RESOLUTION OF ISSUE NUMBER ONE
This issue interrogates the service of the Court processes on the Appellants. The service of Court process occupies a pre-eminent position in the adjudication process. Where the originating processes have not been served, the jurisdiction of the Court is not activated to embark upon the adjudication of any matter. The imperative nature of service of Court process accords with the requirement of fair hearing and the principle of audi alteram partem. Proceedings conducted with the Court processes not having been served are a nullity. See SKENCONSULT NIG LTD vs. UKEY (1981) 1 SC 6, NWAOSU vs. NWAOSU (2000) 4 NWLR (PT 653) 351 at 359 and ONWUBUYA vs. IKEGBUNAM (2019) LPELR (49373) 1 at 10-11.
The Appellants’ contention as I understand it, is not that the Court processes were not served at all; rather, it is that the Court processes ought to have been served at the address stated in the contract agreement, Exhibit A to the affidavit in support of the writ of summons, which contract the action was predicated upon. The Appellants’ counsel graciously conceded in his Reply Brief that the relevant provision of the Companies and Allied Matters Act, 2020, dealing with service of Court process is Section 104, which provides that a Court process shall be served on a company in the manner provided by the rules of Court. Apropos this provision, Order 7 Rule 8 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 stipulates that the originating process may be served on a company at its head office or any other place of business of the company within the jurisdiction of the Court. So under the regnant provisions there is no requirement that service of the originating process is only to be effected at the registered office of the company. The originating process can be properly served at any place of business of the company within jurisdiction. See NEWSWATCH COMMUNICATIONS LTD vs. ATTA (1999) LPELR (6717) 1 at 14-16, NBC PLC vs. UBANI (2013) LPELR (21902) 1 at 60-61 and OCEANIC BANK PLC vs. OLADEPO (2012) LPELR (19676) 1 at 21-23.
Let me iterate that the provision of the Rules of the lower Court is for the Court process to be served at any place of business of the company within the jurisdiction of the Court. The Appellants’ contention is that this stipulation would not authorise service at an address other than the address stated in the contract, Exhibit A. I am unable to agree with the Appellants on this contention. It is instructive that the Appellants have not contended that the address at which the processes were served is not their place of business. What is more, Exhibit A, which is at pages 12-13 of the Records, does not stipulate any addresses at which processes communications or notices arising out of the contract are to be served.
There is therefore nothing mandating that the originating processes are to be served otherwise than in accordance with the stipulations of Section 104 of the Companies and Allied Matters Act, 2020 and Order 7 Rule 8 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018.
This issue number one is therefore resolved against the Appellants. The parties are to be served at their place of business within jurisdiction and not only at the address stated on the contract agreement, Exhibit A.
ISSUE NUMBER TWO AND RESPONDENT’S ISSUE NUMBER THREE
Whether or not non-parties to the contract, Exhibit ‘A’ , before the trial Court, can sue and be sued on the contract or derive any benefit or burden from it.
Whether a principal officer of a corporate organization who is the alter ego or a body corporate which participated in a contract and in enjoying the benefits of the said contract can sue or be sued as a necessary party to a contract?
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that based on privity of contract, non-parties to a contract cannot sue or be sued on it, even if the contract is made for their benefit. The cases of DUNLOP PNEUMATIC TYRE CO LTD vs. SELFRIDGE & CO (1915) AC 847 at 853, BASINCO MOTORS LTD vs. WOERMANN-LINE (2009) ALL FWLR (PT 485) 1634 at 1656, JULIUS BERGER NIG PLC vs. TOKI RAINBOW COMMUNITY BANK LTD (2019) 5 NWLR (PT 1665) 219 at 257 among other cases were cited in support. It was contended that the 1st Respondent is not a party to Exhibit A and that the Respondents did not present any certificate of incorporation at the lower Court to show that the name of the 1st Respondent on Exhibit A is a misnomer. It was posited that the entity contracting on Exhibit A is not a legal entity and therefore lacked the capacity to contract.
It was further submitted that the 2nd Respondent is not a party to Exhibit A and cannot sue on it, just as the 1st Appellant is not the NGO that is the party in Exhibit A and so it cannot be sued on Exhibit A. It was stated that the fact that Exhibit H to the affidavit in support of the writ of summons shows payments made by the 2nd Appellant into the account of one Funmilayo Ademuyiwa, for a purpose that is not stated, will not make the 2nd Appellant a party that can be sued on the contract vide AKINLADE vs. AYINDE (2020) LPELR-49592 (CA), COAST OIL LTD vs. TUBOSCOPE VETCO INTERNATIONAL (2019) LPELR-(46450) 1 at 17-18, OKEKE vs. UGOKWE (2018) LPELR-(44011) 1 at 20-29 and REBOLD INDUSTRIES LTD vs. MAGREOLA (2015) 8 NWLR (PT 1461) 210. It was further contended that the 3rd Appellant was not a party in Exhibit A and that there is nothing to show that he booked any flight in his personal capacity.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that the wrong typing of the names of the 1st Appellant and 1st Respondent on the contract, Exhibit A, was a mere misnomer, and that the 2nd Respondent and 3rd Appellant, being the alter egos of the two companies signed Exhibit A and so they are necessary parties vide IN RE: MOGAJI (1986) 1 NWLR (PT 19) 579 and OGUNDOYIN vs. ADEYEMI (2001) 13 NWLR (PT 730) 403 at 423. Furthermore, that the bank statement of the 1st Respondent, Exhibit D to the affidavit in support of the writ of summons, shows the proper name of the 1st Respondent. It was maintained that the Appellants having taken benefit under the contract cannot seek to avoid liability. The cases of PROFESSIONAL CLEANING SERVICES LTD vs. BENUE STATE GOVT. (2020) LPELR-52278 (CA) at 32, UKAH vs. ONYIA (2016) LPELR-40025 (CA) at 23 and EJIRO vs. OCHAI (2021) LPELR-54190 (CA) at 110-112 were relied upon.
It was asserted that the misnomer in the names of the 1st Appellant and 1st Respondent on Exhibit A is not significant to overturn the judgment of the lower Court. The cases of IYKE MEDICAL MERCHANDISE vs. PFIZER INC. (2002) FWLR (PT 53) 77 and NJEMANZE vs. SHELL BP PORT HARCOURT (1961) ALL NLR 8 at 100 [sic] or (1966) 1 SCNLR 19 were referred to. The Respondents opine that Courts have a duty to protect the interest of parties to a contract, be it oral or written. The case of EMORI vs. ESUKU (2012) LPELR-9797 (CA) at 15-16 was cited in support.
APPELLANTS’ REPLY ON LAW
The Appellants submit that where parties to an agreement have reduced the terms thereof into a written document, extrinsic evidence will not be admissible to add to or vary the same, except in circumstances where the proviso to Section 128 of the Evidence Act will be applicable. The cases of NWOKEDI vs. ORAKPOSIN (1992) 4 NWLR (PT 233) 120 and UBN LTD vs. SAX (NIG) LTD (1994) 8 NWLR (PT 361) 150 were called in aid.
RESOLUTION OF ISSUE NUMBER TWO AND RESPONDENTS’ ISSUE NUMBER THREE
From the reliefs claimed by the Respondents at the lower Court and the affidavit filed, it is as clear as crystal that the Respondents’ action is predicated on the contract for the purchase of airline tickets, and on which the Respondents alleged that the Appellants were owing them. So the action is based on contract. In paragraph 7 of the affidavit in support of the writ of summons, the Respondents deposed as follows:
“7. That on 24th day of October, 2016, the 3rd Defendant entered into a Contract Agreement with the Plaintiffs in the name of the 1st Defendant and booked some flight tickets. The Contract Agreement and the proposal letter, written to the 1st Defendant and signed by the 2nd plaintiff are hereby attached and marked as Exhibit A and B.”
(See page 8 of the Records)
By the above deposition, the precursor to the contract was the proposal, Exhibit B, supposedly written to the 1st Defendant by the Respondents. The said Exhibit B, which is at pages 14-15 of the Records, was addressed to “The Managing Director/CEO AHTV White House” and it was signed by the 2nd Respondent as the Managing Director/CEO of “SWIFT-MOH TRAVELS AND TOURS LTD”. So the proposal and negotiation for the contract was between “SWIFT-MOH TRAVELS AND TOURS LTD” and “AHTV”. The negotiations crystallised into a contract and from Exhibit A, the contract is between AFRICA HEALTH TELEVISION and SWIFT-MOH TRAVELS AND TOURS LTD.
The general principle of law based on the doctrine of privity of contract, is that a contract, cannot as a general rule confer rights or impose obligations under it on any person, except the parties to it. In aliis verbis, only parties to a contract can sue or be sued on the contract: MAKWE vs. NWUKOR (2001) 14 NWLR (PT 733) 356, IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT 1420) 96 at 101, REBOLD INDUSTRIES LTD vs. MAGREOLA (supra) and A-G FEDERATION vs. A.I.C. LTD (2000) 4 WRN 96 at 103. In the circumstances of this matter, the parties who can sue or be sued on Exhibit A are SWIFT-MOH TRAVELS AND TOURS LTD and AFRICA HEALTH TELEVISION. No other person, based on the doctrine of the privity of contract, can sue or be sued on the contract, even if it was made for the person’s benefit.
The parties on record in the action are not parties to the contract so they can neither sue nor be sued on the contract. The Respondents however argued that the difference in the names of the 1st Respondent and the 1st Appellant on Exhibit A is a misnomer. The argument as to being a misnomer is not in the title of the action but in the description of the parties in the contract. I am not enthused by this contention.
The Black’s Law Dictionary (8th Edition), page 1021 defines a misnomer as ‘a mistake in naming a person, place or thing, especially in a legal instrument’. Misnomer simply means the wrong use of a name.
Let me restate that the precursor to the contract, Exhibit A, is the proposal, Exhibit B. The said proposal was written by “SWIFT-MOH TRAVELS AND TOURS LTD”, which is the same name on Exhibit A. The contention that this a misnomer is based on the incredulous argument that the 2nd Respondent who signed the proposal, Exhibit B, which led to the contract, Exhibit A, does not know the name of his company or made a mistake as to the name of his company, not just once on Exhibit B which he initiated and originated, but also a second time on Exhibit A. I am unable to accept that possibility. The same reasoning applies mutatis mutandis to the 1st Appellant. Well aware of the entity it wanted to render services to, the proposal was written to the said entity AHTV, this was followed up by the contract, Exhibit A, in the name of AFRICA HEALTH TELEVISION (AHTV). There is definitely no misnomer! To underscore that there is no misnomer, in the proposal, Exhibit B, SWIFT-MOH TRAVELS AND TOURS LTD is said to be “an indigenous company incorporated as a Limited Liability Company”. Where however the Respondents contend that this is not so, then as rightly submitted by the Appellants, it raises the issue of whether there was a legally enforceable contract if the said SWIFT-MOH TRAVELS AND TOURS LTD does not have legal capacity.
It is abecedarian law that the essential elements of a valid contract are offer, acceptance, consideration, intention to create legal relationship and capacity to contract. All these elements must be present for a contract to be valid in law. See ORIENT BANK (NIG) PLC vs. BILANTE INT’L LTD (1997) 8 NWLR (PT 515) 37 at 76, OMEGA BANK (NIG) PLC vs. O.B.C. LTD (2005) 8 NWLR (PT 928) 547, YARO vs. AREWA CONST. LTD (2007) 17 NWLR (PT 1063) 333 at 377-378 and OJO vs. ABT ASSOCIATES INCORPORATED (2014) LPELR (22860) 1 at 24-25. So, if, as the Respondents have now disclosed, SWIFT-MOH TRAVELS AND TOURS LTD does not have the legal capacity to contract, then Exhibit A is not a valid contract in law which can be enforced by legal proceedings in Court.
The Respondents further raised the issue that Exhibit A was signed by the alter egos of the companies contracting in Exhibit A. Arguendo, if the said companies are incorporated companies, the execution of the contract by their alter egos would not make the said alter egos parties to the contract who can sue and be sued on it.
It is hornbook law that the abstraction called ‘company’ or ‘corporation’ is clothed with legal persona distinct and separate from the aggregate personalities of the individual shareholders and officers in charge of its management. See the leading case of SALOMON vs. SALOMON & CO (1897) AC 22 at 51 or (2002) 1 WRN 1. In YESUFU vs. KUPPER INTERNATIONAL N. V. (1996) 5 NWLR (PT 446) 17, the apex Court held that a director of a company is, in the eyes of the law, an agent of the company for which he acts and the general principle of the law of principal and agent would apply. Thus, where a director enters into a contract in the name of or purporting to bind the company, it is the company, the principal, which is liable on it, not the director. See also OKOLO vs. UNION BANK LTD (2004) LPELR (2465) 1 at 31-32, MARINA NOMINEES LTD vs. FBIR (1986) LPELR (1839) 1 at 27 and BULET INT’L (NIG) LTD vs. OLANIYI (2017) LPELR (42475) 1 at 39-40. The 3rd Appellant can therefore not be sued on the contract, neither can the 2nd Respondent sue on it.
On the flip side, where the parties to Exhibit A, are not juristic persons, then an action can be brought by or against such unincorporated entity by suing the alter ego or proprietor doing business as, or trading under the name and style of the said unincorporated entity. See OBIAMULU vs. OGWUEGO (2020) LPELR (51949) 1 at 5-7 and UBA PLC vs. MOHAMMED (2011) LPELR (5063) 1 at 41-43.
Neither the 2nd Respondent sued, nor was the 3rd Appellant sued as carrying on business or trading as the unincorporated entity in Exhibit A. In the circumstances, they can neither sue nor be sued on Exhibit A since not being parties thereto, they can neither derive any benefit nor shoulder any obligation on the said Exhibit A.
It remains to consider the status of the 2nd Appellant, vis-a-vis Exhibit H, which shows that the 2nd Appellant allegedly made payments in respect of the contract into the account of one Funmilayo Ademuyiwa. Quite apart from the fact as submitted by the Appellants, that Exhibit H does not state the purpose for which the payments were made; it remains immaterial if a contracting party sources for funds from a stranger to a contract to make payment on its behalf on the contract. The fact of such payment would not make the stranger to the contract a person who can sue or be sued on the contract as a consequence. Therefore, even though the purpose of the payment made by the 2nd Appellant is not shown on Exhibit H, if for purposes of argument, it was made for purposes of settling the indebtedness on the contract, it would not eo ipso make the 2nd Appellant a party to the contract for purposes of being sued on the contract. See COAST OIL LTD vs. TUBOSCOPE VETCO INTERNATIONAL (supra) at 17-18 and AKINLADE vs. AYINDE (supra) at 21. Paucis verbis, this issue number two is resolved in favour of the Appellants. It is the parties to a contract that can enforce their rights under the contract in an action in Court. Non-parties can neither sue nor be sued on the contract as they derive no benefit nor incur any burden from the contract.
ISSUE NUMBER THREE
Whether by the provisions of Clause 4 of Exhibit ‘A’, without evidence of renewal, the contract between the parties had not elapsed by effluxion of time as at 23rd of October, 2017.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the contract, Exhibit A, had a lifespan of one year, and that there is nothing to show that the contract was renewed. The claim on which the Respondents founded their action was said to be in respect of transactions that allegedly took place after the contract had expired by effluxion of time, without it being shown that the contract was renewed. It was asserted that any rights arising from the contract, Exhibit A, after its expiration became spent, non-existent and unenforceable vide EZENWA vs. OKO (2008) LPELR-1206 (SC).
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents did not formulate any issue which corresponds with the Appellants’ issue number three on the consequences of the expiration of Exhibit A before the alleged debt on which the Respondents founded their cause of action was incurred. Understandably therefore, the Respondents did not proffer any submissions on the issue.
RESOLUTION OF ISSUE NUMBER THREE
Given the manner in which issue number two was resolved, I ought to have ended this judgment with the resolution of the said issue, however, being an intermediate appellate Court, I am enjoined by law to consider all the issues properly presented for determination by the Court. Let me restate that the Respondents’ action is founded on contract. The principal relief claimed by the Respondents is for the outstanding indebtedness incurred under the contract between 30th March 2018 and 23rd May 2018. The contract on which the Appellants predicated their action is Exhibit A to the affidavit in support of the writ of summons. The said Exhibit A is said to have been entered into on 24th October 2016. Clause 0.4 thereof reads:
“0.4. Termination This contract shall be terminated after a period of one year. And shall be renewed by the two parties.”
By this Clause, the contract terminated after one year. There are no facts deposed to in the Respondents’ affidavit showing that the contract was renewed “by the two parties” as stipulated in the said Exhibit A.
The debt which the Respondents sought to recover in the action was allegedly incurred about five months after the contract had terminated by effluxion of time. Agreements are sacrosanct and ought to be respected. The parties freely entered into the contract, Exhibit A, and they agreed that it would be for a definite term of one year. The said one year had expired. There is no evidence that the contract was renewed. The Respondents’ claim is in respect of services allegedly rendered after the contract had expired. The grant of the relief as claimed would amount to the Court rewriting the contract or changing the agreement made by the parties.
It is settled law that a Court cannot rewrite the contract freely entered into by the parties, just as it is not part of the function of the Court to make agreements for the parties or to change the agreements as made by the parties. To grant the Respondents’ claim for debt allegedly incurred after the contract had effluxed, would amount to the Court rewriting the contract entered into by the parties by changing the agreement to extend the duration of the contract. This is not the function of the Court. See generally BEST (NIGERIA) LTD vs. BLACKWOOD HODGE (NIGERIA) LTD (2011) LPELR (776) 1 at 23, BABATUNDE vs. BANK OF THE NORTH LTD (2011) LPELR (8249) 1 at 20-21, BFI GROUP CORPORATION vs. BPE (2012) LPELR (9339) 1 at 23-24 and UNION BANK vs. NWAOKOLO (1995) LPELR (3385) 1 at 42.
The contract having expired, the Respondents cannot be suing for alleged debts incurred on a non-existent contract. See MOBIL PRODUCING NIG LTD vs. FIRS (2018) LPELR (45560) 1 at 23-25, WENDE vs. GOVERNOR OF BENUE STATE (2019) LPELR (46869) 1 at 16.
What is more, as demonstrated in the resolution of issue number two, the 1st Appellant does not have the legal capacity to contract as it has not been shown that it is a juristic person. A contract cannot be made with a non-existing person: TRANS BRIDGE COMPANY LTD vs. SURVEY INTERNATIONAL LTD (1986) LPELR (3263) 1 at 76. This issue number three is therefore resolved against the Respondents. The contract having elapsed by effluxion of time, in the absence of evidence of its renewal, the Respondents cannot assert any rights that purportedly accrued after the contract had expired.
ISSUE NUMBER FOUR
Whether Exhibit ‘C’ before the learned trial Court, without further evidence, earned the high probative essence the learned trial Court placed on it.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
It is the submission of the Appellants that Exhibit C did not deserve the probative value accorded it by the lower Court. It was stated that the said Exhibit C was prepared solely by the Respondents of transactions it claimed it did for the Appellants in booking airline tickets; but that the same is not backed by any independent itineraria from any airline. It was asserted that the Respondents had the burden of proving their case and that Exhibit C did not have the probative essence to establish their claim. Sections 131-134 of the Evidence Act and the cases of KWASALABA vs. OKONKWO (1992) 1 NWLR (PT 218) 407, UMEOJIAKO vs. EZENAMUO (1990) 1 NWLR (PT 125) 253 at 267, DIBIAMAKA vs. OSAKWE (1989) 3 NWLR (PT 107) 101 at 113 and 114, OGOLO vs. FUBARA (2002) 5 SC (PT I) 141 among other cases were referred to.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents posit that the lower Court rightly relied on Exhibit C to enter judgment in favour of the Respondents. It was opined that Exhibit C duly complied with the requirements of Section 84 of the Evidence Act as a certificate of compliance was filed for the computer generated evidence to be admissible vide DICKSON vs. SYLVA (2016) LPELR-41257 (SC) at 67-69 and AGBOOLA vs. FRN (2017) LPELR-46210 (CA) at 38-41.
APPELLANTS’ REPLY ON LAW
The Appellants submit in their Reply Brief that their contention is on the weight to be attached to Exhibit C and not admissibility. It was asserted that a document can be admitted in evidence and the Court will not attach any probative value to the document. The case of OMEGA BANK (NIG) LTD vs. O.B.C. LTD (2005) LPELR-2636 (SC) at 36-37 was cited in support. It was stated that in estimating the weight to attach to evidence, regard is had to all the circumstances from which any inference can be reasonably drawn.
RESOLUTION OF ISSUE NUMBER FOUR
The Respondents’ contention is that the lower Court rightly relied on Exhibit C to enter judgment in their favour since they complied with the stipulations of Section 84 of the Evidence Act on the admissibility of the said Exhibit C in evidence.
Now, Section 84 of the Evidence Act deals with authentication of computers and electronic devices used in producing documents. It provides the protocol for the admissibility of computer generated evidence. What it prescribes is that the computer or device used in producing the document must be certified as trustworthy and that it did not malfunction at the time of producing the document. As held by the Supreme Court in DICKSON vs. SYLVA (2017) 8 NWLR (PT 1567) 167 at 219, Section 84 of the Evidence Act is all about ascertaining the authenticity of the device from which the exhibit was produced. Accordingly, the stipulations of Section 84 of the Evidence Act only go to perception of evidence, id est, reception of all available admissible evidence. It is only after perception of evidence that the Court ascertains the credibility of the evidence by weighing the same in the context of the surrounding circumstances of the case. See OLUFOSOYE vs. OLORUNFEMI (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPERS LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ANYAKA vs. ANYAKA (2014) LPELR (24501) 1 at 23-24. The implication of this is that the fact that the Respondents satisfied the requirements of Section 84 of the Evidence Act by filing the Certificate of Compliance, does not eo ipso make the documents credible. Compliance with Section 84 of the Evidence Act only serves to make the documents admissible.
So, when properly contextualised, what this issue interrogates is the evaluation of Exhibit C and ascription of probative value thereto by the lower Court. From the Respondents’ affidavit evidence, Exhibit C is the document which details their transaction with the Appellants from January 2018 to 23rd May 2018 and sets out the outstanding debt which they claimed for in the action.
It is trite law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. An appellate Court is loath to interfere with the findings of facts made by the trial Court except where the findings are perverse or not supported by the evidence: TERIBA vs. ADEYEMO (2010) LPELR (3143) 1 at 15-16, ATOLAGBE vs. SHORUN (1985) LPELR (592) 1 at 30 and ANYANWU vs. UZOWUAKA (2009) LPELR (515) 1 at 17-18.
However, when as in this case the evidence is documentary, this matter having been heard on affidavit evidence and the documents attached thereto; an appellate Court is in as good a stead as the trial Court in the evaluation of the documentary evidence as no question of credibility of witnesses arises. See UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (1994) LPELR (3397) 1 at 11-12, GONZEE (NIG) LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT II) 37 and ECOBANK (NIG) LTD vs. ANCHORAGE LEISURES LTD (2020) LPELR (52128) 1 at 24.
The Appellants did not file any processes at the lower Court so the affidavit evidence of the Respondents was unchallenged and uncontroverted. Without a doubt, a Court is duty bound to act on unchallenged and uncontroverted evidence; but evidence, even if uncontroverted and unchallenged still has to be evaluated by the Court to see if it is credible enough to sustain the relief or prayer sought. See OGUNDIPE vs. A-G KWARA (1993) 2 NWLR (PT 313) 588, NEKA B. B. B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27 and HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659.
Now, there is a world of difference between review or summary of evidence and evaluation or assessment of such evidence for the purpose of ascribing value to it. Summary or review of evidence represents the review by the Court of the evidence on record before it, while evaluation of the evidence is the assessing or weighing of the evidence by appraising and estimating the evidence so as to give it credit and value to see if it is of probative essence and if it preponderates in favour of the basic proposition it seeks to establish. See GILSOD ASSOCIATES LTD vs. ALGON (2011) LPELR (4197) 1 at 54-55, AKINTOLA vs. BALOGUN (2000) 1 NWLR (PT 642) 532, GOLAN vs. MOHAMMED (2018) LPELR (47100) 1 at 69-70 and OBASI BROTHERS MERCHANT CO. LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 26.
The lower Court, even before reviewing the affidavit evidence or evaluating the same stated as follows at pages 95-96 of the Records:
“Consequently, upon a careful examination of the 29 paragraph Affidavit filed by the Claimants in support of their writ which remained unchallenged and uncontroverted in evidence. I accept the Affidavit and make of it as the case of the claimants. It is cogent.”
It is against the background of this mindset that the Respondents’ affidavit is unchallenged, uncontroverted and cogent; that the lower Court proceeded to review or summarise the affidavit evidence of the Respondents at pages 96-97 of the Records. Thereafter, and without any evaluation of the affidavit evidence whatsoever, the lower Court found and held as follows at pages 97-98 of the Records:
“In view of the foregoing I hold that the Plaintiffs/Claimants are entitled to recover the whole sum of (N3,001,453,86k) being money for the purchase of Air tickets accrued from 30/3/2018 to 23/5/2018. Tickets No. 209 to 279 bought by the Claimant for the 1st, 2nd and 3rd Defendants which has been consumed as well by the Defendants.
This Court hereby enters judgment in favour of the Plaintiffs/Claimants against the 1st, 2nd and 3rd Defendants jointly for the sum of N3,001,453,86k) being the outstanding indebtedness of the Defendants to the Plaintiffs arising from Airplane tickets issued by the Plaintiffs to the Defendants at their request between 30/3/2018 to 23/5/2018.”
The law remains that evidence, even if unchallenged must still be evaluated by the Court. Evidence given by a claimant even if unchallenged may still be insufficient to sustain the claim made by the claimant: HARUNA vs. SALAU (supra). The lower Court failed to evaluate the affidavit evidence, particularly Exhibit C, which the Respondents relied upon to establish the indebtedness. Happily, the evidence is documentary so this Court is in as good a stead as the lower Court to evaluate the evidence. Exhibit C purports to show the business transaction between the parties and the airline tickets allegedly bought for the Appellants by the Respondents between 30th March 2018 and 23rd May 2018, which the Respondents failed to pay for. The Respondents are not an airline company, so the tickets it allegedly bought for the Appellants were bought from airline companies. There is nothing from any airline company authenticating that it issued any of the tickets stated in Exhibit C.
The Respondents’ claim for the outstanding indebtedness in the sum of N3,001,453.86k has to be strictly proved. Strict proof of the same cannot be achieved without documentary authentication from the airline companies showing that the tickets were issued. If the lower Court had taken time to evaluate Exhibit C and ask itself some hard questions, it would have found that the said Exhibit C is bereft of probative essence to establish the amount claimed as the outstanding indebtedness. Inexorably, this issue number four is resolved in favour of the Appellants.
ISSUE NUMBER FIVE
Whether the learned trial Court was right in awarding an unproved pre-judgment interest at twenty-two (22) per cent per month against the appellants when the pre-judgment interest was not provided for in the contract, Exhibit ‘A’, before the learned trial Court.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that parties are bound by the terms of their agreement and that Exhibit A did not provide for pre-judgment interest and so it cannot be read into it vide AGBAREH vs. MIMRA (2008) LPELR-43211 (SC), AFRICAN INTERNATIONAL BANK vs. INTEGRATED DIMENSIONAL SYSTEM LTD (2012) LPELR 9710, A. G. FERRERO & CO LTD vs. HENKEL CHEMICALS (NIG) LTD (2011) LPELR-12 among other cases.
It was further submitted that the Respondents did not prove the prevailing bank rate on which they arrived at the 22% interest rate claimed and that prejudgment interest requires specific pleading and proof as the same is not provided for in Exhibit A and there was no evidence of custom or usage of trade or rule of equity; the lower Court it was asserted was not to speculate but act on facts before it. The cases of AFRICAN INTERNATIONAL BANK LTD vs. INTEGRATED DIMENSIONAL SYSTEMS LTD (supra) and C. A. P. PLC vs. VITAL INV. LTD (2006) 6 NWLR (PT 976) 220 at 261 were called in aid.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
It is the Respondents’ submission that they claimed general damages at the rate of 22% on the debt owed by the Appellants and that the lower Court rightly awarded the same; as general damages in an action for breach of contract is the loss flowing naturally from the breach. The cases of NCC vs. MOTOPHONE LTD (2019) LPELR-47401 (SC) at 27-28, UNION BANK vs. INNOSON (NIG) LTD (2017) LPELR-42725 (CA) at 145-146, AHMED vs. CBN (2012) LPELR-9341 (SC) at 12 and G.K.F. INVESTMENT (NIG) LTD vs. NITEL PLC (2009) LPELR-1294 (SC) at 30-31 were relied upon.
APPELLANTS’ REPLY ON LAW
The Appellants state that no matter how inelegantly the reliefs are framed, that when properly construed, what the lower Court awarded was prejudgment interest on the alleged debt and not general damages for breach of contract vide STREET vs. MOUNTFORD (1985) WLR 877 or (1985) A. C. 809. It was posited that if what was awarded was general damages, then it would be contrary to the principle for award of damages in contract, which is restitutio in integrum; as it would amount to restitutio in opulentiam and double compensation. The cases of KYAURE CONSTRUCTION LTD vs. AGBANA (1998) 2 NWLR (PT 539) 581 at 590 and KUSFA vs. UNITED BAWO CONSTRUCTION CO. LTD (1994) 4 NWLR (PT 336) 1 were referred to.
RESOLUTION OF ISSUE NUMBER FIVE
The focus of the disceptation under this issue is the Respondents’ relief (b). I had set it out before, but for clarity and ease of reference, I will set it out again. It reads:
“b. Interest on the said N3,001,453.86k at the rate of 22% as general damages to the Plaintiff from the date of the debt for every month until judgment is delivered and 10% interest per annum on the judgment sum from the date of the delivery thereof until the final liquidation by the defendants.”
No matter how the Respondents try to weave this relief as one for general damages simpliciter, it cannot be such.
The law is that general damages are at large and lies at the discretion of the Court: KANTOMA vs. WUTA (2022) LPELR (57060) 1 at 42, KUPOLATI vs. MTN (2020) LPELR (49538) 1 at 13-14 and ROCKONOH PROPERTY CO LTD vs. NITEL PLC (2001) LPELR (2951) 1 at 11-12. The Respondents seek interest from the date of the debt until judgment. So it is a claim for interest before judgment, pre-judgment interest. Even though the relief is framed as a claim for general damages, it is no longer at large; it has specified the measure. Therefore, it is at best a claim for 22% pre-judgment interest as general damages. This being so, the Respondents have to establish the entitlement to the pre-judgment interest in order to be entitled to the award of the same as general damages.
It is effulgent from the said relief (b) that it is a rolled-up claim for pre-judgment and post-judgment interest. It is rudimentary law that there are two types of interest usually awarded by a Court, namely pre-judgment interest otherwise known as interest as of right or moratory interest, and post-judgment interest otherwise known as discretionary interest, which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. Pre-judgment interest on the other hand, must not only be specifically claimed, evidence must also be adduced in proof of the same, failing which it will not be awarded by a Court. The award of pre-judgment interest can be made where it is contemplated in the agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship. See EKWUNIFE vs. WAYNE (WA) LTD (1989) 5 NWLR (PT 22) 422 at 445, IDAKULA vs. RICHARDS (2001) 1 NWLR (PT 693) 111 at 122 and 124-125, BERENDE vs. USMAN (2005) 14 NWLR (PT 944) 1 and BERLIET NIGERIA LTD vs. KACHALLA (1999) 9 NWLR (PT 420) 478.
There is nothing in the contract, Exhibit A, showing that pre-judgment interest was within the contemplation of the parties. Furthermore, there is no iota, whit or scintilla of evidence on any mercantile custom or equitable principle entitling the Respondents to award of pre-judgment interest. Pauciloquently, there is absolutely nothing in the affidavit evidence establishing the entitlement of the Respondents to award of pre-judgment interest, whether as general damages or otherwise. There is no evidence on the rate of interest and the 22% claimed as the rate of interest seems to be whimsical. The lower Court was therefore wrong to have awarded the pre-judgment interest since the same was not proved by the evidence. See A. G. FERRERO & CO. LTD vs. HENKEL CHEMICALS NIGERIA LTD (supra), ADEYEMI vs. LAN AND BAKER NIG LTD (2000) 7 NWLR (PT 663) 3 at 48, AFRIBANK NIG PLC vs. AKWARA (2006) LPELR (199) 1 at 43 and R.C.C. (NIG) LTD vs. ROCKONOH PROPERTY CO. LTD (2005) 10 NWLR (PT 934) 615 at 640-641. Indubitably, this issue number five must be resolved in favour of the Appellants.
It seems to me that every blade of grass in the lawn of this judgment has been tended and groomed. It remains to state that the concatenation of the foregoing is that this appeal is immensely meritorious and it is hereby allowed. The judgment of the lower Court delivered on 6th July 2021 is hereby set aside. In its stead, an order is hereby made dismissing the Respondents’ action in SUIT NO. FCT/HC/CV/3171/2020. The Appellants are entitled to the costs of this appeal which I assess and fix at N100,000.00.
STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Ugochukwu Anthony Ogakwu, JCA.
My learned brother has adequately addressed every issue raised in this appeal. I agree with the reasoning and the conclusion that this appeal has merit. I too, do find that the appeal has merit. The appeal is therefore, allowed by me. I abide by the consequential orders made thereat inclusive of the order as to costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I was privileged to read in advance a draft copy of the leading judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I am in truly satisfied and accept the meticulous treatment of all the issues thorwn up by this appeal and the impeccable conclusions reached therein.
My lords, it is not every error or mistake that is regarded as or would amount to a “misnomer” and therefore, to be of no consequences as thought, but completely erroneously, by the Respondents. In law, a mere misnomer occurs where the natural or legal person actually exists but is sued in a wrong or incomplete name. Thus, in law such misnomer causing no injury or miscarriage of justice, and which case can, nonetheless, be determined on its merit without undue reliance on technicality, cannot be regarded as fundamental. It would also not be allowed to deny a Court of its competency to hear and determine a matter otherwise competently before it. However, the error or mistake is fundamental going to the root of either the claim or the parties, it cannot be regarded as mere misnomer, as no Court has the vires to determine on the merit an incompetent matter no matter how zealous the Court intends to be. In Bank of Baroda v. Iyalabani Company Ltd (2002) LPELR–743 (SC) @ pp. 15-16, the Supreme Court had stated inter alia thus:
“A Plaintiff to an action must be competent to institute such an action and if his competency is challenged then the onus of proving that he has a legal capacity to institute the action lies on him. It is only where it is obvious that a party is not a legal person that the matter can be dealt with without much ado and the non-juristic party struck out or the action struck out if such a party is the Plaintiff…”
See also APGA v. Ubah & Ors (2019) LPELR–48132 (SC) @ pp. 12–14.
It is true the Appellants neither filed any defence nor joined any issue with the Respondents in the proceedings before the lower Court leading to the judgment appealed against, the Respondents’ claim would thus seem to be both undefended and unchallenged.
In law, the onus of proof on a Claimant whose case is unchallenged is said to be minimal. Yet, minimum proof is still proof by credible, relevant and cogent evidence. Thus, if such a claimant fails to make out his case minimally as required of him by law, at least even on a mere prima facie basis against the Defendant, then his claim, though unchallenged, must nonetheless or nevertheless fail. See MTN v. Mundra Ventures Nig Ltd 2016 LPELR–40343 (CA) per Sir Biobele Abrahm Georgewill, JCA. See also Mogaji v. Cadbury Nig Ltd (1972) 2 SC 97; Omoregbe v. Lawani (1980) 3-4 SC 108; Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263; Nwabuoku v. Ottih (1961) 2 SCNLR 232; Omo v. JSC Delta State (2000) 12 NWLR (Pt. 682) 444; WAEC v. Oshionebo (2006) 12 NWLR (Pt. 994) 272.
The fate of the claim of the Respondents, though unchallenged, against the Appellant and the devastating consequences of the failure of the Respondents to prove same against the Appellants was aptly captured in the brilliant analysis in the leading judgment. In law, whenever a claimant fails to make out at least a prima facie case of his claims against a Defendant, even the mere absence of the case of defence alone would not result into a verdict in favour of such a claimant, as was erroneously thought by the lower Court and amplified by the Respondents in this appeal. This is so because in law if no prima facie case is made out by a claimant against a defendant such a defendant need not prove anything in his defence. See Jolayemi v. Alaoye (2004) 12 NWLR (Pt. 887) 322, where Uwaifo JSC, puts this issue bluntly and succinctly thus:
“I realized that the Defendant need not prove anything if the Plaintiff has not succeeded in establishing the case at least prima facie, in order that the necessity of the affidavit to confront the case may arise.”
My lords, on the facts and circumstances as placed by the Respondents as Claimants before the lower Court, as in the Record of Appeal, I thought I should pause to ask that since the parties from Exhibit A neither provided for any payment or rate of interest payable, from what source was the lower Court expected to confirm the 22% pre-judgment interest on the sum of N3,001,453.86 claimed by the Respondents against the Appellants should judgment be entered for them by the lower Court? Or was the lower Court expected to affirm the interest rate payable as pre-judgment interest on the judgment sum in the absence of any agreement to that effect between the parties, coupled with no evidence of the prevailing interest rate as fixed by the Central Bank of Nigeria?
In law, is pre-judgment interest one left at the whims and caprices of the creditor to fix at will without the concurrence of the Debtor in cases where there is no agreement between the parties as to both the interest and the rate payable and in the absence of any evidence of prevailing interest rate form the Central Bank of Nigeria”, I think not!
In my finding therefore, the Respondents having neither pleaded nor proved any pre-interest payable or any rate at all on Exhibit A, were not entitled, contrary to the perverse finding of the lower Court to any award on pre-judgment interest of 22% on the sum of N3,001,453.86 claimed against the Appellants. See Agboneni v. Alakiu (2018) LPELR–44807 (CA), where this Court had stated inter alia thus:
“The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship.”
In the circumstances therefore, there being no presumption of payment of interest from the nature of the transaction between the parties in Exhibit A, there was indeed no reason whatsoever in law for the lower Court to have, in the absence of evidence in support of pre-judgment interest as claimed by the Respondents, proceeded to grant such a claim in favour of the Respondents against the Appellants. There was also no evidence of any prevailing or current interest rate payable as may have been fixed or directed by the Central Bank of Nigeria, as no such circular was pleaded or tendered by the Respondent. The claim for per-judgment interest, was therefore, dead on arrival and ought to have been dismissed without much ado by the lower Court rather than erroneously granting it. See NPA v. Aminu Ibrahim & Co. & Anor (2018) LPELR-44464 (SC) @ pp. 66-68, where the Supreme Court per Odili JSC, had stated inter alia thus:
“On the matter of pre-judgment interest, the law is clear that such interest is awarded where there is an agreement for payment of interest, in which case a claim as such be pleaded and proved”
It is for the above comments of mine but the fuller reasons adroitly marshaled out in the leading judgment that I too hold that the appeal has merit and ought to be allowed. I too hereby allow this appeal and shall abide by the consequential orders made in the leading judgment.
Appearances:
Ike Nwauzoigwe Ike, Esq. with him, Ms. Juliana Obaniba For Appellant(s)
C. U. O. Ebubealor, Esq. For Respondent(s)