BONUM NIGERIA LIMITED v. CHRIS BAYWOOD IBE & ANOR
(2019)LCN/12654(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2019
CA/L/1445A/2016
RATIO
COURT AND PROCEDURE: WHERE A SUIT IS ACADEMIC
“The Courts exist for the determination of live issues not issues that are merely of academic interest and of no practical utilitarian value. In PLATEAU STATE vs. A-G FEDERATION (2006) 3 NWLR (PT. 967) 346 at 419, Tobi, JSC stated: ‘A suit is academic where it is thereby theoretical, makes empty sound and of no practical utilitarian value to the plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.’ See also EZEANYA vs. OKEKE (1995) 4 NWLR (PT. 388) 142 at 165 and GLOBAL TRANSPORT OCEANICO S.A vs. FREE ENTERPRISES (NIG) (2001) LPELR (1324) 1 at 19-20. I would therefore discountenance with the said issues which are now academic.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
TORT LAW: INGREDIENTS OF LIBEL
“The law is trite as to the essential ingredients or elements which must be established for an action in libel to succeed. They are:
1. That there is a publication in writing or in a permanent form.
2. That the publication is false.
3. That the publication was made to a person other than the claimant and defendant.
4. That the publication referred to the claimant and is defamatory of the claimant.
5. That the publication was made by the defendant.
See SKETCH vs. AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678 at 74, ANATE vs. SANUSI (2001) 27 WRN 26 at 41, ILOABACHIE vs. ILOABACHIE (supra) and AYENI vs. ADESINA (supra). The lower Court held that the above elements or ingredients were established as a result of which it mulcted the Cross Appellant in damages.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
AWARD: AWARD OF COST
“The essence of costs is to compensate the successful party for part of the losses incurred in the litigation. Costs cannot cure all the financial losses sustained in the litigation. It is also not meant to be a bonus to the successful party, and it is not to be awarded on sentiments. The award of costs being a matter within the discretion of the trial Court, an appellate Court will not normally interfere in the exercise of discretion by the trial Court in awarding costs except where it is shown not to have been exercised judicially and judiciously. The aim of the award of costs is to indemnify or compensate the successful party for expenses incurred in the course of the litigation. Costs are however not meant to punish the unsuccessful party. See OYEDEJI vs. AKINYELE (2001) FWLR (PT. 77) 970 at 1001, M. H. (NIGERIA) LIMITED vs. OKEFIENA (supra) and ERO vs. TINUBU (2012) LPELR (7869) 1.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
BONUM NIGERIA LIMITED
-CROSS APPELLANT Appellant(s)
AND
1. CHRIS BAYWOOD IBE
(Doing business under the name and style of Baywood Dextron Ventures)
2. BAYWOOD CONTINENTAL LIMITED
-CROSS RESPONDENTS Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
This appeal was spawned by the disagreement on the fees payable to the Cross Appellant in respect of services it rendered in its consultancy contract with the Cross Respondents. As the disagreement raged, the Cross Appellant wrote a letter which the Cross Respondents considered libellous and consequently instituted an action before the High Court of Lagos State in SUIT NO. LD/2245/2010: CHRIS BAYWOOD IBE & ORS vs. BONUM NIGERIA LIMITED. The reliefs claimed by the Cross Respondents are as follows:
i) 100,000,000.00 (One Hundred Million Naira) aggravated or exemplary damages to the 1st and 2nd Claimants jointly and severally for libel contained in the Defendant?s letter of 1st November, 2010 complained of.
ii) An injunction to restrain the Defendant by itself, or by its servants or agents or otherwise howsoever from the further publication of the said words complained of or any of them or of any similar words in relation to the Claimants hereof.
iii) An order compelling the Defendant to wholly retract or withdraw the content of the said letter of 1st November, 2010 complained of from each and every office and person the same was written and published.
iv) 100,000,000.00 (One Hundred Million Naira) aggravated or exemplary damages to the 3rd Claimant for libel contained in the Defendant?s letter of 1st November, 2010.
v) Interest on the judgment sum (if any) at the rate of 10% per annum until the same is fully paid by the Defendant.
vi) Legal cost in the sum of ‘22,800,000.00 (Twenty-Two Million, Eight Hundred Thousand Naira) only.’
(See page 1424 of Volume 3 of the Records)
The Cross Appellant set up a counterclaim wherein it claimed the following reliefs:
a) #12, 368,028.03 (Twelve Million, Three Hundred and Sixty Eight Thousand, Twenty Eight Naira, Three Kobo) and the sum of $279,691.83 (Two Hundred and Seventy Nine Thousand, Six Hundred and Ninety One Dollars, Eighty Three Cents) being sums due to the Counter Claimant under the revised agreement.
b) Interest on the said sum at the rate of 16% per annum from the day Payment was due since July 2010 until final liquidation.
c) The sum of #7,016,000.00 (Seven Million, Sixteen Thousand Naira) only being the amount of special damages incuured. [sic]
d) The sum of #232,000,000.00 (Two Hundred and Thirty Two Million Naira) as general damages and loss of income.
Or in the alternative
i) The sum of #11, 688,000.00 (Eleven Million, Six Hundred and Eighty-eight Thousand Naira) and $97, 453.00 (Ninety Seven Thousand, Four Hundred and Fifty-three Dollars) being value of 1% total variation approved by Chevron Nigeria Limited.
a. Interest on the said sum at the rate of 16% per annum from the day payment was due to the counter claimant since July 2010 until final liquidation.
b. The sum of #7,016,000.00 (Seven Million, Sixteen Thousand Naira) only being the amount of special damages incurred.
c. The sum of #232,000,000.00 (Two Hundred and Thirty Two Million Naira) as general damages and loss of income. (See pages 994-995 of Volume 2 of the Records)
At the end of a full dressed hearing at which testimonial and documentary evidence was adduced, the lower Court delivered its judgment on 5th October, 2016 and relative successes were recorded by the parties in their respective claim and counterclaim.
The parties were both dissatisfied with aspects of the judgment and appealed against the same. This judgment relates to the cross appeal which was filed on 8th December, 2017, pursuant to the leave of Court granted on 21st November, 2017. The main appeal with the Cross Respondents as Appellants is APPEAL NO. CA/L/1445/2016: CHRIS BAYWOOD IBE & ANOR vs. BONUM NIGERIA LIMITED.
After the judgment of the lower Court, the Cross Appellant sought to enforce the aspect of the judgment favourable to it by garnishee proceedings. A garnishee order nisi was made and upon the same being served on the Cross Respondents, they successfully applied for the same to be set aside and the lower Court then made a conditional order for stay of execution of the judgment. The Ruling of the lower Court in this regard was delivered on 13th December, 2016. The Cross Appellant was equally dissatisfied with the said Ruling and incorporated its complaints against the said Ruling in its Notice of Cross Appeal. So the cross appeal is in respect of both the judgment of 5th October 2016 and the Ruling of 13th December 2016.
The Court directed that the Records of Appeal in the main appeal number CA/L/1445/2016 be used for the hearing of this cross appeal and the parties filed and exchanged briefs of argument. The Cross Appellant’s Brief was filed on 24th January 2018, while the Cross Respondents’ Brief was filed on 19th February 2018. The Cross Appellant filed a Cross Appellant?s Reply Brief on 14th March, 2018 but the same was deemed as properly filed on 14th November, 2018. The learned counsel for the parties adopted and relied on their respective briefs at the hearing of the appeal.
The Cross Appellant distilled eight issues for determination as follows:
1. Whether the lower Court was right when it held that the Cross Respondent has successfully established/proved their claim for libel against the Cross Appellant? Relating to Ground 1 of the Notice of Appeal.
2. Whether the lower Court exercised its discretion judiciously and judicially when it awarded the sum of N500,000.00 (Five Hundred Thousand Naira) as costs of litigation against the Cross Appellant Relating to Ground 2 of the Notice of Appeal.
3. Whether based on the preponderance of evidence, the lower Court was right when it held that the Cross Appellant was only entitled to 1% of the gross amount approved per change as against 2.87% of the gross amount approved per change? Relating to Ground 3 & 4 of the Notice of Appeal.
4. Whether the lower Court was right when it failed to expunge letter dated 25th October, 2010 from its record of proceedings? Relating to Ground 5 of the Notice of Appeal.
5. Whether the lower Court was right when it failed to award any consultancy fees for two change orders developed by the Cross Appellant and approved by Chevron Nigeria Limited? Relating to Ground 6 of the Notice of Appeal.
6. Whether the lower Court was right when it failed to make a pronouncement on whether there was extension of scope and extension of schedule thereby justifying the increase of the Cross-Appellant’s fees from 1% of the gross amount approved per change to 2.87% of the gross amount approved per change? Relating to Ground 7 of the Notice of Appeal.
7. Whether the lower Court was right when it granted in favour of the Cross Respondent a conditional stay of execution of its judgment? Relating to Ground 8 of the Notice of Appeal.
8. Whether the lower Court was not in grave error when it applied the decision of this Honourable Court in the case of Nigerian Breweries Plc v. Dumuje & Anor (2016) 8 NWLR, 536, 616-617, paras. D-A to vacate the garnishee order nisi granted in favour of the Cross Appellant? Relating to Ground 9 of the Notice of Appeal.
The Cross Respondents on their part formulated six issues for determination, namely:
i. Whether the lower Court was right when it held that the cross-respondents have successfully established their claim for libel against the cross-appellant. (Ground 1 of the Notice of Cross Appeal)
ii. Whether the lower Court was right to have awarded the sum of N500,000.00 (Five Hundred Thousand Naira) as cost in favour of the cross-respondents. (Ground 2 of the Notice of Cross Appeal).
iii. Whether the lower Court was right not to have expunged Exhibit CW1-11 (letter dated 25th day of October 2010) from the record of the court. (Ground 5 of the Notice of Cross Appeal)
iv. Whether the lower Court was right when it granted in favour of the cross-respondents a conditional stay of execution. (Ground 8 of the Notice of Cross Appeal)
v. Whether the lower Court was right when it set aside the garnishee order nisi granted in favour of the cross-appellant. (Ground 9 of the Notice of Cross Appeal)
vi. Whether the lower Court was right when it held that there was no evidence of agreement of parties as to extension and revision of scope of work and that no consensus was reached between the parties as regards the review of consultancy fees from 1% to 2.87%. (Grounds 3, 4, 6 and 7 of the Notice of Cross Appeal)
Notwithstanding the disparity in the number of issues crafted by the parties, the said issues are the same in their true essence and purport. The issue numbers one and two as distilled by the parties are the same. The Cross Appellant’s issue numbers three, five and six are the same as the Cross Respondents’ issue number six. The Cross Appellant’s issue number four is the same as the Cross Respondents’ issue number three. The Cross Appellant’s issue number seven is the same as the Cross Respondents’ issue number four while the Cross Appellant’s issue number eight is the same as the Cross Respondent’s issue number five.
Let me state that the Cross Appellant’s issue number seven and eight (Cross Respondents’ issue numbers four and five) are in respect of the Ruling of the lower Court of 13th December, 2106 granting a conditional order for stay of execution of its judgment. The contingency on which the said conditional order for stay of execution is predicated is the determination of this appeal. This judgment determines this appeal and the said order by operation of law will abate and become spent. Equally, the garnishee order nisi which was vacated in the Ruling of the lower Court of 13th December, 2016 was based on the judgment of the lower Court which is being reviewed in this appeal. Therefore any garnishee proceedings will now be informed by how this judgment affects the said decision of the lower Court. Already, I have held in the main appeal, CA/L/1445/2016, that the judgment sum is inchoate and that the conditional order for stay of execution could not have been made in the terms made by the lower Court. The concomitance is that the garnishee proceedings cannot be pursued for the said inchoate judgment sum.
The point I seem to be labouring to make is that the said issues which arise from the Ruling of 13th December, 2016 have become academic as no benefit can be conferred on the parties by any favourable resolution of the said issues. On the one hand the order for stay automatically abates upon the determination of this appeal and on the other hand the judgment sum subject of the garnishee proceedings has been determined not to be the adjudged sum that the Cross Appellant can recover in the main appeal.
The Courts exist for the determination of live issues not issues that are merely of academic interest and of no practical utilitarian value. In PLATEAU STATE vs. A-G FEDERATION (2006) 3 NWLR (PT. 967) 346 at 419, Tobi, JSC stated:
‘A suit is academic where it is thereby theoretical, makes empty sound and of no practical utilitarian value to the plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.’ See also EZEANYA vs. OKEKE (1995) 4 NWLR (PT. 388) 142 at 165 and GLOBAL TRANSPORT OCEANICO S.A vs. FREE ENTERPRISES (NIG) (2001) LPELR (1324) 1 at 19-20. I would therefore discountenance with the said issues which are now academic.
In resolving the other issues, I will be guided by the remaining four issues as formulated by the Cross Respondents, which issues are concise, succinct and apt. For purposes of clarity, the issues on which I would consider the submissions of learned counsel and resolve this appeal are as follows:
1. Whether the lower Court was right when it held that the Cross Respondent has successfully established its claim for libel against the Cross Appellant.
2. Whether the lower Court was right to have awarded the sum of N500, 000.00 (Five Hundred Thousand Naira) as cost in favour of the Cross Respondents.
3. Whether the lower Court was right not to have expunged Exhibit CW1-11 (letter dated 25th day of October 2010) from the record of the Court.
4. Whether the lower Court was right when it held that there was no evidence of agreement of parties as to extension and revision of scope of work and that no consensus was reached between the parties as regards the review of consultancy fees from 1% to 2.87%.
ISSUE NUMBER ONE
Whether the lower Court was right when it held that the Cross Respondent has successfully established its claim for libel against the Cross Appellant.
SUBMISSIONS OF THE CROSS APPELLANT?S COUNSEL
The Cross Appellant referred to the necessary facts to be proved in order to succeed in an action for defamation. The cases of OLOGE vs. NEW AFRICA HOLDINGS LTD (2013) 17 NWLR (PT. 1384) 449 at 469 and CONCORD PRESS (NIG) LTD vs. OLUTOLA (1999) 9 NWLR (PT. 620) 578 were referred to. It was stated that the Cross Appellant pleaded and adduced evidence that it did not send the alleged libellous letter to any of the 17 companies listed in the letter as having been copied the letter and the Cross Appellant therefore denied publication of the said letter to any third party, including Skye Bank, Matori Branch. It was posited that the burden of proof was therefore on Skye Bank to establish who delivered the letter to it. Sections 131 and 133 of the Evidence Act were referred to on burden of proof and it was asserted that the Cross Respondents failed to lead evidence to establish that the said letter was sent by the Cross Appellant. The cases of NWAVU vs. OKOYE (2008) 18 NWLR (PT. 1118) 29 at 61, OLUSESI vs. OYELUSI (1986) 3 NWLR (PT 31) 634 and the statement of Ese Malami in Law of Tort 1st Edition, page 430 were relied upon.
It was further submitted that in order to constitute publication, the defamatory matter must be published to a third party and not merely to the plaintiff vide EJANBULOR vs. OSHA II (1990) 5 NWLR (PT. 148) 1 at 20. It was posited that there was an issue as to who sent the letter and that the lower Court was in error by holding that the Cross Appellant published the said letter to Skye Bank when, the Cross Respondents did not discharge the evidential burden of proving publication. The case of GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT. 1256) 574 at 588 was cited in support.
The Cross Appellant contends that the 1st Cross Respondent carries on business in a business name which does not have corporate personality and cannot sue; in which case the reference to Partners, Management and Directors of the business name (without mentioning a particular name) in the alleged libellous letter goes to no issue as the reputation of persons who are not specifically named could not have been damaged. It was opined that it was only the 1st Cross Respondent who sued as doing business in the business name and that the testimony of any other person, on account of the business name not being a legal person, will be hearsay and that in the absence of admissible oral evidence, the alleged libellous letter, Exhibit CW1-1 cannot serve any useful purpose. The cases of TUNJI vs. BAMIDELE (2012) 12 NWLR (PT 1315) 477 at 492, BORNO HOLDING COMPANY LTD vs. BOGOCO (1971) 1 ALL NLR 325 and JIMOH vs. AKANDE (2009) 5 NWLR (PT. 1135) 549 at 585 were called in aid.
It is the further contention of the Cross Appellant that the defence of justification availed it, as Exhibit CW3h was a newspaper publication showing that the Cross Respondents had non-performing loans. Truth it was stated, was a complete defence to defamation and small inaccuracies will not defeat the plea of justification vide Mc’PHERSON vs. DANIELS (1829) 109 ER 448 and AMORC vs. AWONIYI (1994) 7 NWLR (PT. 355) 154. It was asserted that to constitute defamation, the publication must be false and without lawful justification and that every word used is not expected to be proved as correct by the defendant as it sufficed if the main charge or gist of the libel is true.
The cases of SKETCH vs. AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678 and AMUZIE vs. ASONYE (2011) 6 NWLR (PT. 1242) 19 at 45 were referred to. It was maintained that the newspaper publication on the Cross Respondents’ non-performing loans and the evidence of the series of litigations they were involved in showed that the Cross Appellant was justified in writing the alleged defamatory letter.
The Cross Appellant posits that the alleged libellous letter does not refer to the 2nd Cross Respondent and that the lower Court was not correct in holding that the letter amounts to libel against the 2nd Cross Respondent; which holding influenced the outrageous sum of N5million awarded as damages in favour of the Cross Respondents. The Court was urged to interfere with the damages awarded which was too high and was made without taking into account relevant matters relating to the issue of no publication against the 2nd Cross Respondent and equally based on a wrong principle of law as the lower Court did not consider the issue of hearsay and absence of publication. The case of AFRICAN NEWSPAPER (NIG) PLC vs. USENI (2015) 3 NWLR (PT. 1447) 464 at 497 was relied upon.
SUBMISSIONS OF THE CROSS RESPONDENTS? COUNSEL
The Cross Respondents submit that the lower Court rightly held that the claim for libel was established by the evidence. The facts to prove in an action for libel were set out and the cases of ILOABACHIE vs. ILOABACHIE (2005) 13 NWLR (PT. 943) 695 at 736 and AYENI vs. ADESINA (2007) 7 NWLR (PT. 1033) 233 at 259 were referred to. It was maintained that the evidence established that the libellous letter Exhibit CW1-1 was received by Skye Bank, Matori Branch and that it was therefore not open to the Cross Appellant to merely say that it did not send copies of the letter to those to whom it was copied without adducing cogent and convincing evidence in that regard. It was argued that not only is there a presumption that the letter was sent to the person to which it was copied, but that the Cross Respondents further called CW4 from Skye Bank who testified that they received the letter.
It is the further argument of the Cross Respondents that the contention that the specific names of the partners, directors and management referred to in Exhibit CW1 – 1 have to be mentioned in order for the letter to be said to damage their reputation, was a new issue for which leave was necessary to raise and that since no leave was obtained, the same should be discountenanced vide KADZI INT?L LTD vs. KANO TANNERY CO. LTD (2004) 4 NWLR (PT. 864) 545 at 565-566. It was further submitted that the reference to partners, directors and management was a reference to the Cross Respondents and that it damaged their reputation, even if the partnership was not a juristic personality.
It was asserted that the testimony of CW1, CW2 and CW3 was not hearsay as they could give evidence on behalf of a defamed person, more so as the evidence of a third party carries more weight in libel cases and indeed the testimony of CW4 sufficed to ground publication. The plea of justification raised by the Cross Appellant was stated not to have been established by the evidence as correctly held by the lower court. The Cross Respondents maintained that Exhibit CW1-1 was defamatory of the 2nd Cross Respondent and that there was no appeal against the sum of N5million awarded as damages against the Cross Appellant.
CROSS-APPELLANTS’ REPLY ON LAW
It was opined that the contention that the alleged publication could not have damaged the reputation of partners, directors and management whose names were not specifically mentioned was not a new issue, but a new line of argument on an issue that was before the Court, id est, whether the lower Court was right in holding that the claim for libel was proved. The case of KWAJAFFA vs. B.O.N. LTD (2004) 13 NWLR (PT. 889) 1 at 168 was relied upon. The Cross Appellant maintained that there is justification for the publication in Exhibit CW1 ? 1 since the main charge or gist of Exhibit CW1 – 1 was true vide AMUZIE vs. ASONYE (2011) 6 NWLR (PT. 1242) 19.
RESOLUTION OF ISSUE NUMBER ONE
The Cross Appellants’ letter of 1st November 2010 (Exhibit CW1 – 1) which the lower Court found and held to be defamatory of the Cross Respondents reads as follows:
‘1st Nov. 2010
BAYWOOD DEXTRON VENTURES (BDV)
72, OLORUNLOGBON STEET, ANTHONY VILLAGE, LAGOS.
ATTENTION: – REGINA OBANYA/CHRIS UGWU
RE: AGREED CONSULTANCY FEES TO BONUM ON
BDV TRU PROJECT.
We received your Letter dated 25th October, 2010. The Letter has clearly confirmed indubitably, the intent of BDV, its Partners, Directors and Management to defraud BONUM. We had suspected fraud from the actions and inactions of BDV and its management since we submitted our Invoice in July, 2010.
Your Letter is an excellent evidence of Corruption, Crime and Fraudulent actions of BDV, its Partners, Directors and Management. Additional evidence collated by our Consultants indicate that BDV is a ‘419’ Company. We can infer that BDV, its partners, Directors and Management, consistently obtain goods, services and loans fraudulently by false pretence.
We are well aware of the following cases and others of serial Fraud, with impunity by BDV, its Partners, Directors and Management.
1. The names of Customers with the biggest ‘non-performing’ debts were published on the front page of the October 15, 2009 edition of ‘Thisday’ Newspaper, [Please see attached photocopy]. Baywood Continental Limited was reported to be owing Spring Bank, N2.743 Billion.
2. NNPC’s NPDC awarded the Oredo Flow Station Relocation Contract to Baywood Continental Limited in Dec. 2002. Baywood failed to conduct the Project as required by the Contract after collecting mobilization. This led to the termination of the Contract in March 2006 by NPDC. Baywood made no refunds.
3. Currently, Baseline Energy Limited [A Supplier to BDV on the TRU Project] has sued BDV in the High Court of Lagos State; Ikeja Judicial Division in Suit No. ID/97/2010.
4. Similarly, on the 10th day of March, 2010, Jolotex Nigeria Limited secured a Judgment against Baywood Dextron Ventures in Suit No. EHC/256/2009 in Warri, before they got paid for their services.
5. In our case, BDV had prepared ab-initio corruptly and senselessly to defraud BONUM by making obviously false and unreasonable claims after using our excellent professional project management services most successfully to recover $17 Million [USD] on the TRU Project. In addition to your false claims, the Date of our Appointment indicated in your Letter is also false.
BDV is in criminal breach of our Contract ‘Payment Plan’. Our payment was due in July 2010 and your intent to defraud is obvious form your Letter.
The laws of Nigeria forbid criminal conduct. We had cause during our Consultancy Services to you, to advise you in writing to conduct your business with integrity. Apparently, you have not only ignored our excellent professional advice but have gone ahead with impunity to document your attempt to defraud us in your referenced Letter. We will expose this attempt and you could be compelled by law to conduct your business with integrity or cease to operate.
Per our Contract, our payment was due since July, 2010. You must pay BONUM in full, immediately, for our services duly rendered per our accurate Invoice which you previously reviewed and accepted both verbally and electronically. Your desperation to defraud criminally has blinded you and you forgot that, BDV has already made a part payment of N5 Million to us on the basis of the same Invoice you previously accepted and now wish to reject fraudulently.
Signed
Cyprian Yande,
General Manager.
CC:
1. Commissioner of Police, Lagos State
2. Commissioner of Police, Special Fraud Unit
3. Inspector General of Police
4. Project Manager, TRU, CNL
5. Manager, Terminal Projects, CNL
6. Terminal Superintendent, CNL
7. MD, Jolotex Nigeria Ltd.
8. MD, Baseline Nigeria Ltd.
9. Program Manager, Mobil Producing Nigeria
10. General Manager, NPO, Mobil Producing Nigeria
11. Project Director, OUR Project, Zachem
12. Manager, Facilities Engineering, NAPIMS
13. GGM, NAPIMS
14. MD, NPDC
15. Branch Manager, Skye Bank, Matori, Lagos
16. MD, Skye Bank PLC
17. GED E&P, NNPC.”
The law is trite as to the essential ingredients or elements which must be established for an action in libel to succeed. They are:
1. That there is a publication in writing or in a permanent form.
2. That the publication is false.
3. That the publication was made to a person other than the claimant and defendant.
4. That the publication referred to the claimant and is defamatory of the claimant.
5. That the publication was made by the defendant.
See SKETCH vs. AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678 at 74, ANATE vs. SANUSI (2001) 27 WRN 26 at 41, ILOABACHIE vs. ILOABACHIE (supra) and AYENI vs. ADESINA (supra). The lower Court held that the above elements or ingredients were established as a result of which it mulcted the Cross Appellant in damages.
The contestation is whether the lower Court was not correct in this regard.
Now, it is not confuted that Exhibit CW1 ? 1 is in a permanent from, in writing and that it was made by the Cross Appellant. The major thrust of the Cross Appellant?s argument is that the said letter was not published to any third party, that it does not refer to the Cross Respondents on record and that it is not defamatory of them and more importantly that the publication is not false. To boot, the Cross Appellant raised the defence of justification and adduced evidence in that regard.
In paragraphs 39 and 42 of the Amended Statement of Defence the Cross Appellant averred as follows:
39. The Defendant avers that the said word complained of, or the words set out in paragraph 4 of the Claimants’ statement of claim were true in substance and in fact. The Defendant shall rely on the defense of justification at the trial of this suit.
PARTICULARS
a. It was reported in Thisday Newspaper of 15th October, 2009 that Claimants took out as a loan the sum of N2.743 Billion Naira from Spring Bank of Nigeria Plc, the Claimants failed, neglected and refused to pay back any part or the whole sum causing the Central Bank of Nigeria to publish in Thisday Newspaper on October, 15th 2009 the names of Spring Bank Plc customers with the biggest non-performing debts of which the 3rd Claimant’s name appeared. Certified True Copy of the said This day Newspaper is hereby pleaded and shall be relied upon at the trial of this suit.
b. The Claimants’ fraudulent activity manifested in NNPC’s NPDC Oredo Flow Station Relocation Contract awarded to the Claimants in December, 2002.
The Claimants failed to conduct the project as required by the contract after being heavily mobilized which led to the termination of the contract in March 2006. In particular, the said letter from NNPC dated 1st March, 2006 clearly shows that the contract was terminated because of the 3rd Defendant?s failure to complete same within time which led to the termination of the said contract for non-performance. The Defendant shall rely on the said letter by Nigerian Petroleum Development Company Limited dated the 1st of March, 2006 at the trial of this suit.
c. The partnership operated by the 1st and 2nd Claimant neglected, refused and failed to carry on its obligation under the contract it had with Baseline Energy Limited by refusing to pay money due to baseline Energy Limited after the said Baseline had supplied goods to it. This suit was later settled out of Court. The Defendant shall rely on the Statement of Claim of Baseline Energy Services Limited in Suit No. ID/97/2010 and terms of settlement executed between Baseline Energy Services Limited and the 1st & 2nd Claimants and entered in Court as judgment in Suit No. ID/97/2010.
d. The partnership operated by the 1st & 2nd Claimant also breached its obligation under a contract it executed with Jolotex Nigeria Limited, the said Jolotex secured a judgment against the 1st & 2nd Claimants’ partnership in Suit No. EHC/256/2009 in Warri, before they got paid for their services.
42. In reply to paragraph 31 of the amended statement of claim, the Defendant avers that statement in the alleged libelous letter as to the debt owed to Springbank Plc is true in fact and substance and it is irrelevant if the Newspaper statement is inaccurate as to 100% correct details. The Defendant further avers that the two rejoinders by the 3rd Claimant in the Thisday Newspaper and Daily Sun Newspaper cannot erase the fact that there was a publication to the effect that the 3rd Claimant was in unserviced debts and that the publication was true state of events as they were. The Defendant further avers that the Claimants had not asked any Thisday Newspaper for a retraction of the said publication and no action had been instituted against Thisday for libel, confirming the veracity of the publication. The Defendant only referred to the publication and did not assert its veracity.
(See pages 607-608 and 609 of Volume 2 of the Records)
It is hornbook law that where the defence of justification is set up as in this case, the probative value on the claimant is lessened as the plea of justification implies an admission that the publication was made by the defendant, but that the publication is true. The defendant then has the onus of proving the veracity of the publication. Where it is able to do so then it cannot be liable in damages since damages are awarded where the publication is false: OJUKWU vs. NNORUKA (1999) LPELR (5683) 1 at 24- 25.
Therefore, the Cross Appellant which raised the defence of justification had the burden of proving that the publication was true as opposed to the Cross Respondents proving that it was false. See IRIVING vs. PENGUIN BOOKS (2000) WLR 362 at 478, AKOMOLAFE vs. GUARDIAN PRESS LTD (2004) 1 NWLR (PT. 853) 1 and INLAND BANK NIG PLC vs. FISHING & SHRIMPING CO. LTD (2010) LPELR (2158) 1 at 24-25.
In deciding whether a publication is defamatory, the entire publication must be taken as a whole. The Cross Appellant has rightly submitted that the truth of every word in the libel need not be proved and that it suffices if the main charge or gist of the libel is true. In the words of Iguh, JSC in THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, (AMORC) NIGERIA vs. AWONIYI (1994) LPELR (3198) 1 at 60-61:
For the defence of justification to succeed, it is not necessary to prove the truth of each and every word comprised in the alleged libel. It suffices if the defendant establishes that the main substance of the libellous statement is true and justified. The defendants need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable.
Equally, in ACB LTD vs. APUGO (2001) LPELR (9) 1 at 18-19, Ejiwunmi, JSC stated:
‘Although it is not necessary to prove the truth of every word in the libel, the defendant, is however obliged to prove that the main charge or gist of the libel is true. He need not justify the statements or comments which do not add to the sting of the charge.’ See also AMUZIE vs. ASONYE (supra).
I have already reproduced verbatim ac literatim the of the alleged libellous publication, Exhibit CW1 – 1. It is translucent that the main charge or gist of the libel complained about is that the Cross Respondents are fraudulent, corrupt, fraudulently obtain by false pretences, criminals, ‘419’ Company and serial fraudsters. The main gist of the libel is not in the publication of the 2nd Cross Respondent’s name as a debtor or that it was sued or that judgment was obtained against it or that the contract awarded to it was terminated; it is to prove that in those instances the Cross Respondents were fraudulent and defrauded the persons they dealt with. The evidence adduced by the Cross Appellant did not establish the defence of justification as it did not prove the main sting of the Cross Respondents being fraudulent and into ‘419’, which is the main slur and sting in the publication.
The lower Court was therefore correct when it held that the defence of justification did not avail the Cross Appellant in the following words:
‘A cursory look at the ‘This Day’ Newspaper of October 15, 2009 relied on by the Defendant of an outstanding ‘non-performing’ debt of the 3rd Claimant to Spring Bank in the sum of N2.743 Billion (which was refuted by the Claimants vide the This Day Newspaper publication of 20th October 2009) does not in any form describe the Claimants as ‘fraudsters’ who ‘consistently obtain goods, services and loans fraudulently by false pretence’ as stated in Exhibit CW1 (1) the Defendant’s letter of 1st November 2010.
The Defendant has further listed an Oredo-Flow station contract to Baywood Continental Limited in 2002 which they failed to perform despite payment of mobilization. The Defendant has despite Exhibit CW2 (a) proffered no evidence of ‘FRAUD’ before the Court in proof of same. The law suits also listed do not indicate more than commercial disputes and therefore cannot impute ‘fraudulent’ acts/actions by the Claimants. In the absence of any justification for the said letter and from the contents thereof, it is evident that same was indeed malicious and written with the intent to expose the Claimants to ridicule or contempt, particularly as same was copied to persons who are not privy to their contract and had no business with the parties as regarding the contract in issue.
The Honourable Court therefore believes that from the entirety of facts before it, the plea of justification cannot avail the Defendant and therefore fails. (See pages 1614-1615 of Volume 3 of the Records).
I have given due consideration to the Cross Appellant’s contention that Exhibit CW1 – 1 does not defame the 2nd Cross Respondent and that the 1st Cross Respondent not having been specifically mentioned by name therein is not defamed. I am not enthralled by this contention. The 2nd Cross Respondent is clearly mentioned by name in paragraphs 1 and 2 of Exhibit CW1-1, in the instances of serial fraud that were allegedly committed.
I iterate that the said fraud was not proved by the evidence. Furthermore, the 1st Cross Respondent is known as a partner in BDV. Indeed, the 1st Cross Respondent prosecuted the action as doing business in the name and style of Baywood Dextron Ventures (BDV). It has not even been remotely suggested that the 1st Cross Respondent is not a Partner in BDV. It is with respect chop sense and logic to contend that the publication does not refer to the 1st Cross Respondent, a known Partner in BDV, because it did specifically mention his name other than by virtue of his being a Partner. The sting of the defamation is clearly referable to the Cross Respondents and the lower Court rightly so held at pages 1613-1614 of Volume 3 of the Records as follows:
‘There is also no doubt that the statement refers to the Claimants as even though the letter was addressed to Baywood Dextron Ventures (BDV), the body of same particularly paragraphs 1, 2 and 3 of same refers to its Partner Directors and Management (same has not been disputed)
The Honourable Court believes and finds that indeed paragraphs 1, 2, 3 and 5 are without doubt libelous in their natural and ordinary meaning and refer to the 1st and 2nd Claimants (doing business in the name and style of Baywood Dextron Ventures) including their Partners, Directors and Management.
The Court further believes that the words are equally libelous of the 3rd Defendant.
There is no doubt that the words of the said paragraphs portray the Claimants as dishonest, in the habit of cheating, guilty of dishonest and dishonourable conduct and lacking in integrity.
The gravamen of the tort of defamation is the publication of the defamatory matter to a third party. It is rudimentary law that a person’s reputation is not based on the good opinion he has of himself but the estimation in which others hold him. See NSIRIM vs. NSIRIM (2004) 26 WRN 13 at 32 and UNITY BANK vs. ABIOLA (2009) ALL FWLR (PT. 452) 1082 at 1105. It was therefore not for the 1st Cross Respondent to personally testify as to what people think of him as a result of the publication. The testimony of the CW1 – CW4 was germane in the diacritical circumstances of the matter.
The Cross Appellant makes a kerfuffle of the fact that it did not send Exhibit CW1-1 to any of the 17 persons indicated to have been copied the letter. There is however the unchallenged evidence of the CW4 that the letter was received by Skye Bank, Matori Branch, which is listed as number 15 in the list of persons to whom Exhibit CW1-1 was copied. The testimony of the CW4 cannot be wished away by the mere assertion by the Cross Appellant that they did not send the letter to those copied. By Section 145 (1) of the Evidence Act, whenever it is provided that the Court may presume a fact, the Court may either regard such fact as proved unless and until it is disproved or it may call for proof of it. Section 167 of the Evidence Act stipulates that the Court may presume the existence of any fact which it deems likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relationship to the facts of a particular case. In the circumstances of this matter, the Court may presume that a letter written and said to have been copied to someone was actually despatched to the said person by the writer of the letter, more so when evidence is adduced by the person to whom the letter was copied that he actually received the letter. The Cross Appellant did not adduce any evidence to disprove or rebut this presumption.
In holding that publication was proved, the lower Court held thus:
‘Now to the simple issue of publication, it is not in dispute that the said letter being complained of has on its face, that fact of courtesy copies (cc) of same to 17 persons.
The defendant has stated without more that they did not send out the copies as stated in the body of the letter.
There is the evidence of CW4 (Staff of Skye Bank Plc-Matori Branch) before the Court who testified to the receipt of Exhibit CW1 (1) when same was brought to his attention by a Secretary, informing the Court that the letter was received and time-stamped and that he brought same to the Manager’s attention.
First, ‘In proving public in libel cases, the law is that libel does not require publication to more than one person…’ AYENI V ADESINA (2007) 7 NWLR (PT 1033) PG 233 at 262-263.
It is the reduction of libelous material to writing and its delivery to any person other than the person injuriously affected that is publication. See AGI V FIRST CITY MONUMENT BANK PLC (2013) LPELR-CA/C/19/2011.
The Court finds that the evidence of CW4 remained intact and unshaken despite cross-examination and therefore believes and finds that the Claimant had successfully proved publication to Skye Bank (third party).
(See pages 1615 of Volume 3 of the Records).
The concatenation of the foregoing is that after due and insightful consideration of the evidence on the cold printed Records, the ineluctable conclusion is that all the elements or ingredients for proving libel were established by the Cross Respondents and the lower Court arrived at the correct decision when it so held. This issue is therefore resolved against the Cross Appellant.
ISSUE NUMBER TWO
Whether the lower Court was right to have awarded the sum of N500, 000.00 (Five Hundred Thousand Naira) as costs in favour of the Cross Respondents.
SUBMISSIONS OF THE CROSS APPELLANT?S COUNSEL
The Cross Appellant complains that the costs of N500,000.00 awarded by the lower Court was too high and was tantamount to punishing the Cross Appellant.
It was posited that the costs awarded was not a proper exercise of judicial discretion especially when the Cross Appellant was also successful and no costs were awarded in its favour. The Court was urged to review the costs awarded by the lower Court as the lower Court failed to observe the provisions of Order 49 of the High Court of Lagos State (Civil Procedure) Rules in making the award. The cases of M. H. (NIG) LTD vs. OKEFIENA (2011) 6 NWLR (PT. 1224) 514, CARNAUD METAL BOX (NIG) PLC vs. AGWELE (2009) 17 NWLR (PT. 1171) 487 at 508- 509, AGIDIGBI vs. AGIDIGBI (1996) 6 NWLR (PT. 454) 300 among other cases were relied upon.
SUBMISSIONS OF THE CROSS RESPONDENTS’ COUNSEL
The Cross Respondents submit that their action for libel having succeeded, the lower Court was right to have awarded the cost of N500,000.00 in their favour, regard being had to the provisions of Order 49 Rule 1 (1) (a) and (b) of the High Court of Lagos State (Civil Procedure) Rules. It was stated that a Court in awarding costs takes into consideration the expenses reasonably incurred among other factors. The case of DELTA STEEL (NIG) LTD vs. AMERICAN COMPUTER TECHNOLOGY INC (1999) 4 NWLR (PT. 597) 53 at 68 was referred to.
It was opined that the Cross Respondents pleaded and adduced evidence on the fees they paid to their Solicitors and that if the lower Court had taken into consideration the cost of legal representation, which it found proved, it would have awarded more than the N500,000.00 it awarded as costs. The cases of M. H. NIG LTD vs. OKEFIENA (supra) and LEBILE vs. REG. C & S (2003) 2 NWLR (PT. 804) 399 at 422-423 were cited in support.
CROSS APPELLANT’S REPLY ON LAW
The Cross Appellant argued in the Reply Brief that there is no relationship between the costs awarded by the lower Court and the specific monetary claim of the Cross Respondents, since following events in litigation a party need not ask for costs and the costs awarded ought not to be based on the amount of monetary claim in the action. The case of ANYAEGBUNAM vs. OSAKA (1993) 5 NWLR (PT. 294) 449 was called in aid.
RESOLUTION OF ISSUE NUMBER TWO
The disceptation under this issue is with regard to the costs awarded in favour of the Cross Respondents by the lower Court. Let me restate that there was a claim and counterclaim before the lower Court and the parties registered relative successes in their respective claim and counterclaim. So the parties all succeeded in their action. However, in exercising discretion to award costs, the lower Court only awarded costs in favour of the successful Cross Respondents; no costs were awarded in favour of the equally successful Cross Appellant. Now, in these circumstances, was the cost awarded in favour of the Cross Respondent a proper exercise of judicial discretion.
The position of the law is that costs follow event and a successful party should not be deprived of his costs unless for good reasons. See SAEBY vs. OLAOGUN (1999) 10-12 SC 45 at 59. In AKINBOBOLA vs. PLISSON FISKO NIGERIA LTD (1991) 1 NWLR (PT. 167) 270, Kawu, JSC stated:
“The award of costs is of course, always at the discretion of the Court which discretion must be exercised both judicially and judiciously? It is also a well-established principle that costs follow events and that a successful party is entitled to cost unless there are special reasons for depriving him of his entitlement?”
The essence of costs is to compensate the successful party for part of the losses incurred in the litigation. Costs cannot cure all the financial losses sustained in the litigation. It is also not meant to be a bonus to the successful party, and it is not to be awarded on sentiments. The award of costs being a matter within the discretion of the trial Court, an appellate Court will not normally interfere in the exercise of discretion by the trial Court in awarding costs except where it is shown not to have been exercised judicially and judiciously. The aim of the award of costs is to indemnify or compensate the successful party for expenses incurred in the course of the litigation. Costs are however not meant to punish the unsuccessful party. See OYEDEJI vs. AKINYELE (2001) FWLR (PT. 77) 970 at 1001, M. H. (NIGERIA) LIMITED vs. OKEFIENA (supra) and ERO vs. TINUBU (2012) LPELR (7869) 1.
In GAMBARI vs. ILORI (2002) 14 NWLR (PT. 786) 78 at 103-104, Mohammed, JCA held as follows:
“I shall however comment briefly on the complaint of the appellant on the N5000.00 costs awarded against him by the trial Court which the learned Counsel to the appellant described as improper and not supported by evidence or submission of Counsel relating to out of pocket expenses.
Unquestionably, the award of costs by the Court to the successful party falls squarely within the discretionary domain of the Court, which discretion as the law requires, must be exercised judicially and judiciously particularly in the absence of any guidance in the various civil procedure rules of the High Courts as contained in the Supreme Court Rules and the Court of Appeal Rules. While it is true that a successful litigant should not be denied costs, it is firmly established that costs must follow the event but many a time circumstances and for good reasons, the defeated party may not be damnified in costs… As a general principle therefore, it may be said that costs are in the discretion of the Court and for that reason, where the Court exercised its discretion judicially and judiciously as opposed to doing so capriciously or upon any wrong principle, an appellate Court is without power to interfere with such honest exercise of the Court’s discretion.”
Order 49 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012 referred to by the parties stipulates as follows:
(1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in the course of proceedings, as well as compensated for his time and effort in coming to Court. Such expenses shall include:
(a) The cost of legal representation and assistance of the successful party to the extent that the Judge determines that the amount of such cost is reasonable;
(b) The travel and other expenses of parties and witnesses to the extent that the Judge determines that the amount of such expenses is reasonable, and such other expenses that the Judge determines ought to be recovered, having regard to the circumstances of the case.
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgment or making the order.
(3) When the Judge deems it to be impracticable to determine summarily the amount of any costs which he has adjudged or ordered to be paid, all questions relating thereto shall be referred by the Judge to a Taxing Officer for taxation.
It is evident that the above provision deals with the principle to be observed by a Court in fixing costs to be awarded to the parties. Going by the strict application of the provision, both parties having registered success in the action, and therefore ?in the right? were entitled to costs. The lower Court however exercised discretion by awarding costs to the Cross Respondents only. So costs were awarded against the successful Cross Appellant. In other words, costs were not awarded in favour of the successful Cross Appellant. Put differently once again, costs were not awarded against the unsuccessful Cross Respondents upon the success of the Cross Appellant?s counterclaim. The question is whether this was a judicial and judicious exercise of discretion.
At the risk of prolixity, there was a claim and a counterclaim before the lower Court. The claim and counterclaim succeeded in part; so it was not a win-win for either party at the lower Court. The exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the particular case, guided by the spirit and principles of law:
THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 156 at 168. Like all judicial discretions, the discretion is exercised judicially and judiciously. Judicial in the sense that it must be for a reason connected with the case and judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. SeeERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8.
In the diacritical circumstances of the manner in which the decision of the lower Court turned, in which neither party could be said to have wholly carried the day, it seems to me that the award of costs to the Cross Respondents against the Cross Appellant was not the exercise of discretion for a reason connected with the case. It was not based on sound judgment, wisdom and good sense to have awarded costs in favour of only one of the successful parties against an equally successful party. In a coda, it was not fair and equitable and it was a wrong exercise of judicial discretion. An appellate Court will definitely interfere in the circumstances.
The Cross Respondents had claimed the legal cost of the action as a specific relief. The lower Court considered the evidence adduced in that regard and was unable to grant the same. Contrary to the contention of the Cross Respondents, the lower Court was right not to have relied on the evidence adduced in the unsuccessful proof of legal costs to arrive at the amount to award as costs of the action. The lower Court gave no reasons for awarding costs against the equally successful Cross Appellant; such cannot be allowed to stand. It is not a question of whether the amount awarded as costs is excessively high or not; rather it is that in the peculiar circumstances, the proper exercise of discretion was that costs should not have been awarded. The parties having both succeeded ought to bear their respective costs of the litigation. Consequently, this Issue Number Two is resolved against the Cross Respondents. The costs awarded in favour of the Cross Respondents is hereby set aside. There shall be no order as to costs. The parties are to bear their respective costs.
ISSUE NUMBER THREE
Whether the lower Court was right not to have expunged Exhibit CW1-11 (letter dated 25th day of October 2010) from the record of the Court.
SUBMISSIONS OF THE CROSS APPELLANT’S COUNSEL
The quiddity of the Cross Appellant’s contention on this issue is that after it wrote its letter, Exhibit CW3. L threatening legal action, the Cross Respondents replied by their Exhibit CW1. 11 and returned the payment invoices which had earlier been forwarded to them on the ground that they did not reflect the true position of the consultancy fees due to the Cross Appellant. It was posited that the said Exhibit CW1.11 was written in anticipation of the legal proceedings that was threatened and was rendered inadmissible by the provisions of Section 83 (3) of the Evidence Act. The Court was urged to expunge the said Exhibit CW1.11 notwithstanding that an objection was not taken to its admissibility vide CHUKWU vs. FRN (2013) 12 NWLR (PT. 1369) 488 at 509.
SUBMISSIONS OF THE CROSS RESPONDENTS’ COUNSEL
The Cross Respondents opine that Exhibit CW1.11 having been admitted without objection, that the Cross Appellant could no longer be heard to complain about its admissibility not having objected when the document was tendered in evidence.
It was stated that except for documents rendered inadmissible for failure to satisfy some conditions or criteria, an opposing party who fails to object to the admissibility of a document cannot thereafter be heard to complain about its admissibility. The cases ofETIM vs. EKPE (1983) 14 NSCC 86 at 95-96, OLANLOYE vs. FATUNBI (1999) 8 NWLR (PT 614) 203 at 229 and IKENNA vs. BOSAH (1997) 3 NWLR (PT. 494) 439 at 452-453 were relied upon. It was maintained that Exhibit CW1.11 was not written in anticipation of litigation but was only a response to the Cross Appellant’s Exhibit CW3. L.
CROSS APPELLANT’S REPLY ON LAW
The Cross Appellant states that Exhibits CW1.11 is not a document that is admissible subject to any conditions being satisfied, but that it is rendered inadmissible by Section 83(3) of the Evidence Act. It was asserted that a document which is inadmissible is invalid for all intents and purposes and cannot form the basis of any competent finding by a court vide NWAOGU vs. ATUMA (2013) 11 NWLR (PT. 1364) 117 at 136 -137. It was conclusively submitted that an appellate Court has a duty to exclude inadmissible evidence and decide the case based on the legally admissible evidence. The cases of BUHARI vs. OBASANJO (2005) 13 NWLR (PT. 941) 1 and OZIGI vs. UBN (1994) 3 NWLR (PT. 333) 385 were cited in support.
RESOLUTION OF ISSUE NUMBER THREE
The parties disagree and dispute the percentage payable to the Cross Appellant as consultancy fees. The case powered by the Cross Appellant is that the percentage payable to it as consultancy fees was changed from 1% to 2.87%. The Cross Respondents maintain that the percentage remained at 1% and was not changed. The Cross Appellant’s contention is that the Cross Respondents in Exhibit CW1.11 turned around to deny that the percentage had been revised from 1% to 2.87%.
It is the Cross Appellant’s case that the percentage due to it is 2.87% as revised; so it had the burden of proving the same. The crux of the contention under this issue is on wrongful admission of evidence. The law is that wrongful admission of evidence shall not of itself be a ground for the reversal of a decision where it appears on appeal that such evidence cannot reasonably be held to have affected the decision and that the decision would have been the same if such evidence had not been admitted. See EZEOKE vs. NWAGBO (1988) 1 NWLR (PT. 72) 616 at 630, OJENGBEDE vs. ESAN (2001) 18 NWLR (PT. 746) 791 and MONIER CONSTRUCTION CO LTD vs. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 at 88. So even if Exhibit CW1.11 was not admissible by virtue of the stipulations of Section 83 (3) of the Evidence Act, the wrongful admission of the same, eo ipso, cannot form the basis for overturning the decision of the lower Court where it transpires that the Cross Appellant did not prove its case on the percentage of consultancy fees payable to it.
Section 251 (1) of the Evidence Act provides as follows:
‘The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.’
So the question is whether without Exhibit CW1.11, the judgment of the lower Court would have been different. Where it will not make any difference to the decision reached, then the wrongful admission shall not be a basis on which to reverse the decision of the lower Court: YASSIN vs. BARCLAYS BANK DCO (1968) LPELR (25440) 1 at 14-15, OKONJI vs. NJOKANMA (1999) LPELR (2477) 1 at 46 and ALLI vs. ALESHINLOYE (2000) LPELR (427) 1 at 51-52. We would find out in the course of examining the next issue, which deals with how the evidence preponderates on the vexed question of review of the percentage of consultancy fees payable to the Cross Appellant from 1% to 2.87% and proof thereof, whether the wrongful admission of the said Exhibit CW1.11 affected the decision of the lower Court; such that the exhibit should be expunged and the decision of the lower Court reversed.
ISSUE NUMBER FOUR
Whether the lower Court was right when it held that there was no evidence of agreement of parties as to extension and revision of scope of work and that no consensus was reached between the parties as regards the review of consultancy fees from 1% to 2.87%.
SUBMISSIONS OF THE CROSS APPELLANT’S COUNSEL
The conspectus of the Cross Appellant’s contention is that the scope and duration of the consultancy agreement with the Cross Respondents was expanded and extended consequent upon which the consultancy fees was reviewed from 1% to 2.87% and that the Cross Respondents accepted the reviewed percentage of 2.87%. It was maintained that a contract can be given effect to whether in writing, parole or established by conduct of the parties and that the Courts effectuate the intention of the parties. The cases of UTC NIGERIA PLC vs. PHILLIPS (2012) 6 NWLR (PT. 1295) 136 at 163, ADENIRAN vs. OLAGUNJU (2001) 17 NWLR (PT. 741) 159 at 187, OMEGA BANK (NIG) PLC vs. O.B.C. LTD (2005) 8 NWLR (PT. 928) 547, DASPAN vs. MANGU LOCAL GOVT. COUNCIL (2013) 2 NWLR (PT. 1338) 203 among other cases were referred to. It was opined that the evidence established that the review and increase from 1% to 2.87% was accepted by the Cross Respondent vide Exhibit CW3 J.
It was asserted that the invoices sent to the Cross Respondents was based on increased consultancy fees of 2.87% and that the Cross Respondents made some payments on the said invoices, which was conduct showing that the Cross Appellant was entitled to payment based on 2.87%. Section 169 of the Evidence Act was referred to, to the effect that the Cross Respondents were estopped from contending the contrary.
SUBMISSIONS OF THE CROSS RESPONDENTS’ COUNSEL
The Cross Respondents submit that parties are bound by contracts voluntarily entered into and that it is not the duty of a Court to make a contract for the parties. The case of BAKER MARINE (NIG) LTD vs. CHEVRON (NIG) LTD (2006) 13 NWLR (PT. 997) 276 at 287-288 and FGN vs. ZEBRA ENERGY LTD (2002) 3 NWLR (PT. 754) 471 at 491 were called in aid. It was asserted that the agreement between the parties was on payment of 1% as consultancy fees to the Cross Appellant and that there was no consensus on the review of the consultancy fee to 2.87%. It was posited that the Cross Appellant having predicated its invoice on 2.87% did not mean that the Cross Respondents accepted the review to 2.87%.
RESOLUTION OF ISSUE NUMBER FOUR
The hornbook principle of law is that in order for parties to be bound by their agreement, they must be ad idem as its terms. See A-G RIVERS STATE vs. A-G AKWA IBOM STATE (2011) LPELR (633) 1 at 23-24 and BILANTE INTERNATIONAL LIMITED vs. NDIC (2011) LPELR (781) 1 at 23-24. It is not confuted that the parties were ad idem on the payment of 1% as consultancy fees at the time of their contract in Exhibit CW1.1. The pertinent question is whether the parties arrived at a similar consensus on the upward review of the consultancy fees to 2.87%, consequent upon the extension and revision of the scope of work under the consultancy.
The Cross Appellant contends that the Cross Respondents accepted the review and relies, inter alia, on the conduct of the Cross Respondents in making payment on the invoice which was based on 2.87% and also on Exhibit CW3 J. Now, in Exhibit CW3 J, the Cross Respondents while agreeing in principle on review requested the Cross Appellant to send the proposal for review and further discussion. This clearly shows that the parties had not reached any consensus on the review as the same was to be subjected to further discussion. Undoubtedly, the upward review of the consultancy fees to 2.87% remained inchoate.
The Cross Appellant had rendered services under the consultancy agreement for which it was entitled to payment. The Cross Appellant raised its invoice for payment, albeit, predicated on 2.87% as consultancy fees. The Cross Respondents made some payment on the invoice.
It is beyond disputation that a workman is entitled to his wages; therefore the fact that some payment was made on the invoice does not connote an acceptance of 2.87% as the fees due to the Cross Appellant. It could only have been so inferred if the payment made was in excess of the agreed 1% that the Cross Appellant was entitled to as consultancy fees. This has not been shown to be so. I am therefore unable to agree with the Cross Appellant that the conduct of the Cross Respondents in making some of the payment due on the contract amounted to acceptance of 2.87% as the fees, for which they were estopped by the doctrine of estoppel from asserting the contrary.
It is a fundamental principle of law that parties are bound by the terms of their contract and it is not open to one of the parties in the absence of novation to unilaterally change or vary the terms of the contract by incorporating into it one or more terms that had not been agreed upon by both parties: MAIDARA vs. HALILU (2000) LPELR (10695) 1 at 19, GAMBAGA s. MBIU (2014) LPELR (41079) 1 at 17 and ISIYAKU vs. ZWINGIWA (2001) FWLR (PT. 72) 2096.
Any variation of the agreed terms has to be by mutual consent and there must be offer and acceptance of the variation for the required consensus ad idem to be present. See EKWUNIFE vs. WAYNE W. A. LTD (1989) LPELR (1104) 1 at 13 and UNITY BANK vs. OLATUNJI (2014) LPELR (24027) 1 at 47-48. The evidence on record does not bear out the meeting of the minds of the parties and their consensus on the extension and revision of the scope of work and the upward review of the percentage payable to the Cross Appellant as consultancy fees. The parties did not have a concluded bargain in that regard and so there was no binding contract for the payment of 2.87% as consultancy fees to the Cross Appellant. See ATIBA IYALAMU SAVINGS & LOANS LTD vs. SUBERU (2018) 13 NWLR (PT. 1637) 387 at 404. The lower Court arrived at the correct decision in this regard when at pages 1622-1623 of Volume 3 of the Records, it held as follows:
Now the question is whether or not the trail of e-mails above mentioned are sufficient to amount to a review of the ‘agreement of parties’ in this instance. There is no doubt in the mind of the Honourable Court that a review of the agreement was presented by the Defendant to the 1st and 2nd Claimants and that Chris Ugwu informed Bonum of the ‘agreement in principle’ to a review? he however requested in the email of 04/22/09 at 9.24a.m for the proposal for review and further discussion.
The question is not whether the review is desirable of ‘fair’ or indeed that ‘there was an agreement in principle subject to approval’ the issue is was there indeed a consensus ad-idem between the parties as to an increase in the consultancy fees 1% to 2.87% as contended in the counter-claim?
The Honourable Court has carefully considered the entirety of facts before it as regards the ?review? and finds that indeed no consensus was reached between parties as regards to the review of its consultancy fees from 1% to 2.87% as attested by the Defendant/Counter-Claimant. There is also clearly no evidence of agreement of parties as to the extension and revision of scope of work.
From the totality of evidence before this Honourable Court, there is therefore no basis to hold that the Defendant/Counter-Claimant is entitled to consultancy fees 2.87% of all gross amounts approved per change/variation order but to 1% of all gross amounts approved per change/variation.”
The evidence adduced by the Cross Appellant did not establish entitlement to be paid 2.87% as consultancy fees; it consequently becomes of no moment as it relates to the contention in issue number three above, whether Exhibit CW1.11 was wrongfully admitted in evidence or not since without the said exhibit, the decision of the lower Court would have been the same since the evidence did not establish the meeting of the minds of the parties. Indubitably, this issue is resolved against the Appellant.
Every blade of grass in the field of this judgment has been tended and groomed. Even though issue number two was resolved in favour of the Cross Appellant, the other issues were resolved against it. In the general scheme of the appeal, the appeal succeeds in part on account of setting aside of the costs of N500, 000.00 awarded in favour of the Cross Respondents by the lower Court. The parties are to bear their respective costs of this appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A., and I am in agreement with the judgment.
I have nothing more to add.
I also abide by the consequential order in the lead judgment.
TOBI EBIOWEI, J.C.A.: I was afforded the opportunity of reading in draft the judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, J.C.A.
I agree with the reasoning and conclusion reached therein in the said judgment.
Appearances:
Tochukwu Onyiuke, Esq. with him, Ms. Emma NdiyoFor Appellant(s)
Dr. Muiz Banire, SAN with him, Adebayo Badmus, Esq. Ms. Adesumbo Odukoya and Ms. Omolabeke OkiFor Respondent(s)
