CHRIS BAYWOOD IBE & ANOR v. BONUM NIGERIA LIMITED
(2019)LCN/12656(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2019
CA/L/1445/2016
RATIO
INTERPRETATION: THE MEANING OF ‘CAUSE OF ACTION”
“The phrase ’cause of action’ has been variously defined in judicial decisions as the fact or combination of facts which give rise to a right to sue, which consists of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent due to the wrongful act. See CHUKWU vs. AKPELU (supra), EGBUE vs. ARAKA (1988) 3 NWLR (PT 84) 598 at 613, ECOBANK (NIG.) PLC vs. GATEWAY HOTELS LTD (1999) 11 NWLR (PT 627) 397 at 418, EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20, AFOLAYAN vs. OGUNRINDE (1990) 1 NWLR (PT 127) 369 at 373, MULIMA vs. USMAN (supra) and SAVAGE vs. UWECHIA (1972) 1 All NLR (PT I) 251 at 257 or (1972) 3 SC 214 at 221. Cause of action is the factual basis or some factual situations a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See IBRAHIM vs. OSIM (1988) 1 NNSC 1184 at 1194 (per Uwais, JSC as he then was) and TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 at 581.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
CONTRACT: PRIVITY OF CONTRACT
“It is a hornbook principle of law that a person who is not a party to a contract cannot be bound by it. SeeA-G FEDERATION vs. A.I.C. LTD (2000) LPELR (628) 1 at 30 and CITY EXPRESS BANK vs. T. F. SERVICES LTD (2005) ALL FWLR (PT 266) 124.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
CONTRACT: AWARD OF COST
“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 loss 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 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
1. CHRIS BAYWOOD IBE
(Doing business under the name and style of Baywood Dextron Ventures)
2. BAYWOOD CONTINENTAL LIMITED Appellant(s)
AND
BONUM NIGERIA LIMITED Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
The rudimentary principle of law in respect of contracts and agreements is expressed in the Latinism pacta conventa qua neque contro leges neque dolo malo inita sunt omni modo observanda sunt, more commonly expressed as pacta sunt servanda, meaning that pacts or agreements which are neither contrary to the law nor fraudulently entered into should be adhered to in every manner and in every detail. See SONNAR NIG LTD vs. NORDWIND (1982) LPELR (3494) 1 at 44, A-G NASARAWA STATE vs. A-G PLATEAU STATE (2012) LPELR (9730) 1 at 29 and BLUENEST HOTELS LTD vs. AEROBELL NIGERIA LTD (2018) LPELR (43568) 1 at 22. At the crux of the disceptation in this appeal and which donated the disparate causes of action which the parties prosecuted at the lower Court is the adherence vel non of the agreement between the parties and subsequent actions arising therefrom.
The provenance of the matter is in the ?TRU Project? contract between the Appellants and Chevron Nigeria Limited. The Respondent entered into a contract with the Appellants to provide project management consultancy services on the said TRU Project with Chevron Nigeria Limited. The Respondent duly rendered the consultancy services but there arose a disagreement on the agreed percentage which was to be paid to the Respondent for its services. The Respondent after several demands wrote a demand letter to the Appellants which, on the face of it, was stated to have been copied to about seventeen (17) persons. The Appellants, considering the said letter defamatory, instituted proceedings at the High Court of Lagos State in SUIT NO: LD/2245/2010: CHRIS BAYWOOD IBE & ORS vs. BONUM NIGERIA LIMITED. In their Further Amended Statement of Claim, the Appellants sought the following reliefs:
i) N100,000,000.00 (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) N100,000,000.00 (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 N22,800,000.00 (Twenty-Two Million, Eight Hundred Thousand Naira) only.(See page 1424 of Volume 3 of the Records)
The Respondent setup a counterclaim wherein it claimed the following reliefs:
a) N12, 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 N7,016,000.00 (Seven Million, Sixteen Thousand Naira) only being the amount of special damages incuured. [sic]
d) The sum of N232,000,000.00 (Two Hundred and Thirty Two Million Naira) as general damages and loss of income.
Or in the alternative
i) The sum of N11, 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 N7,016,000.00 (Seven Million, Sixteen Thousand Naira) only being the amount of special damages incurred.
c. The sum of N232,000,000.00 (Two Hundred and Thirty Two Million Naira) as general damages and loss of income.(See pages 994-995 0f Volume 2 of the Records)
Issues having been joined on the pleadings as filed and exchanged by the parties, the action was subjected to a full blown plenary trial at which testimonial and documentary evidence was adduced. In the decision of the lower Court which was delivered on 5th October 2016, the parties recorded relative successes on their respective claim and counterclaim. However, they were both dissatisfied with aspects of the judgment and appealed against the same. The appeal by the Appellants is the subject of this judgment, while the cross appeal of the Respondent which was entered as APPEAL NO. CA/L/1445/2016: BONUM NIGERIA LTD vs. CHRIS BAYWOOD IBE & ANOR. is the subject of a separate judgment.
After the judgment of the lower Court, the Respondent commenced garnishee proceedings to realise the aspect of the judgment favourable to it. A garnishee order nisi was obtained which was later set aside upon the application of the Appellants. Upon the said setting aside, the lower Court further made a conditional order for stay of execution. This was in the Ruling of the lower Court delivered on 13th December 2016. Once again, the parties were both dissatisfied with the said Ruling and appealed against the same. So the appeal and cross appeal of the parties incorporate their complaints against the judgment of 5th October 2016 and the Ruling of 13th December 2016.
The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellants’ Brief was filed on 17th January 2017, while the Respondent’s Brief was filed on 1st March 2017. The Appellant further filed a Reply Brief on 13th March 2017. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellants formulated five issues for determination as follows:
i. Whether, having held in its judgment of October 5, 2016 that the payments received from the Appellants by the Respondent be set off the amounts held by the Court to be due to the Respondent and having not ascertained the outstanding judgment debt, the lower Court was wrong in its ruling of December 13, 2016 that the judgment debt of N8,994,985.48 and $92,812.95 be paid into a designated interest-yielding account in the name of the Chief Registrar of the High Court of Lagos State. (Ground 1 of the Notice of Appeal)
ii. Whether there is cause of action against the 2nd Appellant in the Counter-claim of the Respondent as to warrant the grant of judgment against the 2nd Appellant. (Ground 4 of the Notice of Appeal)
iii. Whether the lower Court was right when it refused the exchange rate of N132 to 1 dollar for the payment of the contractual fee of the Respondent. (Ground 5 of the Notice of Appeal)
iv. Whether the lower Court was right in refusing to award legal cost paid by the Appellants in the prosecution of their case. (Ground 3 of the Notice of Appeal)
v. Whether the lower Court was right when it ordered the Appellants to pay interest on the judgment sum at the rate of 10% per annum from July 2010 until judgment. (Ground 2 of the Notice of Appeal)
On its part, the Respondent equally distilled five issues for determination, namely:
1. Whether considering the nature of the judgment of the lower Court wherein the lower Court awarded the sum of N8, 994, 985.48 and the sum of $92, 812.95 in favour of the Respondent and held that the payments received from the Appellants by the Respondent in the sum of N23, 559,099.22 (Twenty Three Million, Five Hundred and Fifty Nine Thousand Ninety Nine Naira, Twenty Two Kobo) be set off against the judgment sum, refunding the Appellants the sum of N14,564,113.74 (Fourteen Million, Five Hundred and Sixty Four thousand, One Hundred and Thirteen Naira, Seventy Four Kobo) less N1,200.000.00 (One Million, Two Hundred Thousand Naira) does not amount to set off. RELATING TO GROUND 2 OF THE APPELLANTS’ NOTICE OF APPEAL.
2. Whether considering the pleadings, oral and documentary evidence of the Respondent at the lower court, there is any cause of action against the 2nd Appellant leading to the judgment of the lower court against the 2nd Appellant? RELATING TO GROUND 4 OF THE NOTICE OF APPEAL.
3. Whether based on the preponderance of evidence, the lower court was right when it refused the exchange rate of N132 to 1 Dollar for the payment of the contractual fee of the Respondent? RELATING TO GROUNDS 5 OF THE NOTICE OF APPEAL.
4. Whether payment of legal cost is not within the purview of special damages requiring it to be specifically pleaded and proved?
5. Whether the lower Court was right when it ordered the Appellants to pay interest on the judgment sum at the rate of 10% per annum from July 2010 until judgment? RELATING TO GROUND 2 OF THE NOTICE OF APPEAL.
The issues crafted by the parties, though differently worded are the same two and tuppence. Accordingly, the issues as formulated by the Appellants would be the lodestar in the consideration of the submissions of learned counsel and resolution of this appeal.
ISSUE NUMBER ONE
Whether, having held in its judgment of October 5, 2016 that the payments received from the Appellants by the Respondent be set off the amounts held by the Court to be due to the Respondent and having not ascertained the outstanding judgment debt, the lower Court was wrong in its ruling of December 13, 2016 that the judgment debt of N8, 994,985.48 and $92,812.95 be paid into a designated interest-yielding account in the name of the Chief Registrar of the High Court of Lagos State.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The quiddity of the Appellants contention is that the decision of the lower Court is that the amount adjudged as due to the Respondent be set off from payments already made by the Appellants to the Respondent and that it is after this setting off that the amount (if any) that the Respondent will be entitled to can be ascertained. It was opined that the lower Court was therefore in error when it made the conditional order for stay of execution for the amount adjudged as due, without the setting off having been done, to be paid into an interest yielding account.
It was contended that the order for the judgment debt as adjudged to be paid into an interest yielding account was tantamount to amending, reviewing or varying the judgment, which was that the adjudged sum be set off against payments already made to the Respondent. It was stated that the implication of the conditional order for stay of execution was that the adjudged sum would no longer be set off against the payments already made to the Respondent. The lower Court, it was stated, became functus officio after its judgment, and could no longer revisit the same to review, vary or amend except to correct clerical errors or mistakes. The cases of FBN PLC vs. T. S. A. IND LTD (2010) 15 NWLR (PT 1216) 247 at 297, DINGYADI vs. INEC (NO. 2) (2011) 18 NWLR (PT 1224) 154 at 186 and OLUROTIMI vs. IGE (1993) 8 NWLR (PT 311) 257 at 274 were referred to.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent maintains that the lower Court was right in its conditional order for stay of execution. It was submitted that the payments due to the Respondent under its contract with the Appellants is denominated in Naira and Dollars and that the Naira component cannot be set off from the Dollar component. It was posited that the law does not compel one to do vain or impossible things; lex necessitatis est les temporis instantis. It was argued that the grant of conditional stay of execution did not amount to a review, variation or amendment of the judgment and that the case ofFBN PLC vs. TSA IND. LTD (supra) was inapplicable.
The Respondent further contends that a Court has the power to protect its judgment by granting a conditional order for stay of execution which is in the nature of a consequential order, aimed at giving effect to the judgment. The cases of OTU vs. ACB INT?L BANK PLC (2008) 3 NWLR (PT 1073) 179 at 199, EAGLE SUPER PACK (NIG) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 at 57, EYIGEBE vs. IYAJI (2013) 11 NWLR (PT 1365) 407 at 427 and CHIKERE vs. OKEGBE (2000) 12 NWLR (PT 681) 274 were relied upon.
APPELLANTS’ REPLY ON LAW
In the Reply Brief the Appellants argue that the contention that it will be impossible to set off the Naira competent from the Dollar component does not arise as there is no appeal on the issue of set off ordered by the lower Court and the same remained unchallenged and correct vide FAAN vs. GREENSTONE LTD (2009) 10 NWLR (PT 1150) 624 at 629. The Appellants assert that the conditional order for stay of execution is not a consequential order as it negates from the judgment of the lower Court that the amount already paid to the Respondent be set off from the amount adjudged as due in the judgment.
RESOLUTION OF ISSUE NUMBER ONE
When properly conualized, the disceptation in this issue is not convoluted. It is simply whether in the light of the terms of the judgment the conditional order for stay of execution for the amount adjudged as due to the Respondent to be paid into an interest yielding account is correct. The power of the lower Court to make a conditional order for stay of execution cannot be confuted. The question in the diacritical circumstances of this matter is whether the order as made is the correct order.
In order to conduce to the utmost pellucidity, the lower Court in granting the Respondents counterclaim in part found and held as follows:
‘The records of the Court reveal that as at date the Claimants/Defendants to the Counter-Claim have paid to the Defendant the total sum of N23,559,099.22(Twenty Three Million, Five Hundred and Fifty Nine thousand, Ninety Nine Naira, Twenty Two Kobo Only)'(See page 1624 of Volume 3 of the Records)
The lower Court continued at page 1625 of Volume 3 of the Records and held:
‘1% of the stated 85% approved being the sums of N8,994,985.48 (Eight Million, Nine Hundred and Ninety Four Thousand, Nine Hundred and Eighty Five Naira, Forty Eight Kobo) and $92,812.95 (Ninety Two Thousand, Eight Hundred and Twelve Dollars, Ninety Five Dollars)
The Honourable Court therefore finds and holds that the stated amounts were in fact due to the Defendants from the Claimants as agreed on the approved variation.’
The lower Court then crowned it all by ordering that:
‘The Payments received till date from the Claimants would therefore be set off the amount(s) held by this Court to be due to the Defendant/Counter-Claimant.’ (See page 1625 of Volume 3 of the Records)
It is limpid from the order of the lower Court that the actual amount due to the Respondent is inchoate and will only be arrived at after the sum of N23.5million already paid to the Respondent is set off from the N8.9million and $92, 812.95 adjudged as due to the Respondent under the judgment. Put differently and more pungently, the judgment sum due to the Respondent is not N8.9million and $92, 812.95, but the sum of the outstanding amounts after they are deducted from the N23.5million which had already been paid to the Respondent. There is nothing in the Records to show that the setting off had been done, so the actual amount due remained inchoate.
In making the conditional order for stay of execution the lower Court ordered as follows:
‘The Judgment Debtor/Applicants are hereby ordered to pay into a designated interest yielding account in the name of the Chief Registrar of the High Court of Lagos State, the principal judgment debt only entered against them in favour of the Judgment Creditor within 14 days of this order pending the determination of the appeal filed at the Court of Appeal.
The principal judgment debt being the sum of N8,994,985.48 (Eight Million, Nine Hundred and Ninety Four Thousand, Nine Hundred and Eighty Five Naira, Forty Eight Kobo) and $92,812.95 (Ninety Two Thousand, Eight Hundred and Twelve Dollars Ninety Five cents)
In the alternative, the Appellants are to file in this Honourable Court within 14 days an unequivocal Bank Guaranty to cover judgment debt afore-stated. (See pages 2247-2248 of Volume 4 of the Records)
I iterate that what the lower Court described as the principal judgment debt is not the amount due to the Respondent by the terms of the judgment. The principal judgment debt can only be arrived at after the setting off as ordered by the Court has been done. It is accordingly lucent that the conditional order made is not in sync with the terms of the judgment.
The issue with due deference is not whether a Court can order the impossible, but whether the conditional order made represents what is due to the Respondent under the terms of the judgment. Furthermore, the conditional order does not give effect to the judgment as the order is in fact different from what is due to the Respondent by the terms of the judgment. The conditional order for stay of execution is therefore not a consequential order as it does not flow from and reflect the terms of the judgment, which is that the amount adjudged as due be set off against the N23.5million already paid to the Respondent: CHIKERE vs OKEGBE (supra), EAGLE SUPER PACK (NIG) LTD vs. ACB PLC (supra) and EYIGEBE vs. IYAJI (supra). From the totality of the foregoing, this issue must be resolved in favour of the Appellants. The lower Court was wrong to have ordered for an amount which was not the actual amount due by the terms of the judgment to be paid into an interest-yielding account. Howbeit, the contingency on which the conditional order for stay of execution is predicated is the determination of this appeal, so the said order would in any event abate and become spent by operation of law upon the delivery of this judgment. This makes inutile any formal order to set aside the said conditional order for stay of execution.
ISSUE NUMBER TWO
Whether there is a cause of action against the 2nd Appellant in the Counter-claim of the Respondent as to warrant the grant of judgment against the 2nd Appellant.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that there is no privity of contract between the 2nd Appellant and the Respondent in respect of the agreement sought to be enforced by the Respondent. It was therefore stated that there was no cause of action against the 2nd Appellant. The cases of MULIMA vs. USMAN (2014) 16 NWLR (PT 1432) 160 at 198, EMIATOR vs. NIGERIAN ARMY (1999) 12 NWLR (PT 631) 362 at 369-370 and CHUKWU vs. AKPELU (2014) 13 NWLR (PT 1424) 359 at 380 were referred to on the meaning of cause of action.
It was opined that even though the absence of cause of action was not raised at the lower Court, it was an issue of jurisdiction which could be raised for the first time on appeal. The cases of CHUKWU vs. AKPELU (supra), ANYOHA vs. CHUKWU (2008) 4 NWLR (PT 1076) 31 at 48, OUR LINE LTD vs. S.C.C. (NIG) LTD (2009) 17 NWLR (PT 1170) 382 at 404 and OKOYE vs. CPMB LTD (2008) 15 NWLR (PT 1110) 335 at 359 were cited in support. It was maintained that from the exhibits tendered the 2nd Appellant was not privy to the contract sought to be enforced by the Respondent and there being no cause of action against the 2nd Appellant, the lower Court had no jurisdiction over the Respondent’s counterclaim as it relates to the 2nd Appellant.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that in determining whether there is a cause of action. The Court considers the writ of summons and statement of claim. It was stated that the Respondent?s pleadings disclosed a cause of action against the 2nd Appellant as the case made out is understandable and it is neither unsustainable, unarguable nor inconsistently bad. The cases of NICON INSURANCE CORP. vs. OLOWOFOYEKU (2006) 5 NWLR (PT 973) 255 and 257, ELEMA vs. NEPA (2000) 2 NWLR (PT 644) 337 and TIKA-TORE PRESS LTD vs. UMAR (1968) 2 ALL NLR 107 were called in aid.
It was asserted that there was testimonial and documentary evidence showing that the 2nd Appellant was a party to the contract between the Respondent and the Appellants and that the lower Court having evaluated the evidence was right in its decision and that an appellate Court would not interfere where the trial Court has properly discharged its primary duty of evaluating the evidence and ascribing probative value thereto. The cases of BAITACH vs SHADAFI (2012) 13 NWLR (PT 1317) 396 at 416, DURU vs. NWOSU (1989) 4 NWLR (PT 113) 24, CAP PLC vs. VITAL INVESTMENT LTD (2006) 6 NWLR (PT 976) 220 at 267, MILITARY GOVERNMENT OF LAGOS STATE vs. ADEYIGA (2012) 5 NWLR (PT 1293) 291 at 331, MOGAJI vs. ODOFIN (1978) 4 SC 91 and AGBI vs. OGBEH (2006) 11 NWLR (PT 990) 665 were referred to.
APPELLANTS’ REPLY ON LAW
The Appellants in reply submit that the evidence did not show any cause of action or reasonable cause of action against the 2nd Appellant and that the Respondent in its submissions twisted the testimony of the Appellants? witness contrary to the provisions of Rule 32 (3)(f) of the Rules of Professional Conduct for Legal Practitioners 2007. The case of AIGORO vs. COMMISSIONER, LANDS & HOUSING, KWARA STATE (2012) 11 NWLR (PT 1310) 111 at 124 was relied upon.
RESOLUTION OF ISSUE NUMBER TWO
It is pertinent to state that the Appellants do not complain that the evidence adduced did not establish the 2nd Appellant’s liability for the Respondent’s counterclaim.
The contention is that there is no privity of contract between the 2nd Appellant and the Respondent in respect of the contract which the Respondent sought to enforce by its counterclaim and therefore that there was no cause of action against the 2nd Appellant and, eo ipso, the lower Court had no jurisdiction over the Respondent?s counterclaim as it relates to the 2nd Appellant.
The parties have correctly given the meaning ascribed to cause of action in decided cases and that it is the statement of claim that the Courts resort to in order to ascertain if a cause of action is disclosed. Now, the contention that there is no cause of action or no reasonable cause of action involves two interrelated elements. The first element is that the plaintiff (read Respondent) has no cause of action against the defendant (read 2nd Appellant). The second is that even though a cause of action is disclosed, that cause of action is not reasonable. The phrase ’cause of action’ has been variously defined in judicial decisions as the fact or combination of facts which give rise to a right to sue, which consists of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent due to the wrongful act. See CHUKWU vs. AKPELU (supra), EGBUE vs. ARAKA (1988) 3 NWLR (PT 84) 598 at 613, ECOBANK (NIG.) PLC vs. GATEWAY HOTELS LTD (1999) 11 NWLR (PT 627) 397 at 418, EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20, AFOLAYAN vs. OGUNRINDE (1990) 1 NWLR (PT 127) 369 at 373, MULIMA vs. USMAN (supra) and SAVAGE vs. UWECHIA (1972) 1 All NLR (PT I) 251 at 257 or (1972) 3 SC 214 at 221.
Cause of action is the factual basis or some factual situations a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See IBRAHIM vs. OSIM (1988) 1 NNSC 1184 at 1194 (per Uwais, JSC as he then was) and TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 at 581.
In THOMAS vs. OLUFOSOYE (1986) 1 NWLR (PT 18) 669 at 682, the Supreme Court (per Obaseki, JSC) adopted the dictum of Pearson, LJ in DRUMMOND-JACKSON vs. BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 688 at 696 wherein the phrase ‘reasonable cause of action’ was defined thus:
No exact paraphrase can be given, but I think means a cause of action with some chance of success, when?only the allegations in the pleadings are considered. If when those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim should be struck-out. (Emphasis supplied)
In determining whether a reasonable cause of action is disclosed, the Court needs only to look at and examine the averments in the statement of claim. See AJAYI vs. MILITARY ADMINISTRATOR, ONDO STATE (1997) 5 NWLR (PT 503) 237, 7UP BOTTLING CO. LTD vs. ABIOLA [2001] 29 WRN 98 at 116, NICON INSURANCE CORP. vs. OLOWOFOYEKU (supra), ELEMA vs. NEPA (supra) and OTUBU v OMOTAYO (1995) 6 NWLR (PT 400) 247. The statement of claim must set out the legal right of the plaintiff and the obligation of the defendant. It must then go on to set out facts constituting infraction of the plaintiff?s legal right or failure of defendant to fulfil his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks: THOMAS vs. OLUFOSOYE (supra), EGBE vs. ADEFARASIN (supra) and RINCO CONSTRUCTION CO. LTD vs. VEEPEE INDUSTRIES LIMITED (2005) 9 MJSC 197 at 204.
It is sufficient for a Court to hold that a cause of action is disclosed and is reasonable once the processes filed disclose some cause of action or some questions fit to be decided by a Judge, notwithstanding that the case is weak or not likely to succeed. The perceived weakness of the case and/or even the fact that the case is not likely to succeed are not sufficient reasons to stop a plaintiff from coming before the Court to determine the infraction of his civil rights and obligations arising from the transactions alleged in the action. See ATIBA IYALAMU SAVINGS & LOANS LTD vs. SUBERU (2018) 13 NWLR (PT 1637) 387 at 413 & 414. The proper course for the defendant to take is to take advantage of the weakness, if any, in the case of the plaintiff at the trial. See IBRAHIM vs OSIM (supra) at 1198, A-G (FEDERATION) vs. A-G (ABIA) (2001) 40 WRN 1 at 52 and MOBIL PRODUCING NIGERIA UNLIMITED v LASEPA (2003) 1 MJSC 112 at 132. The fact that the Appellants chose to raise the question of disclosure of cause of action on appeal, does not in any way change the legal position as it relates to what has to be considered and examined in order to ascertain if a cause of action is disclosed.
Evidently, the 2nd Appellant failed to take advantage of any weakness in the Respondent’s case as borne out by the fact that the lower Court entered judgment against it in respect of the Respondent’s counterclaim. I have insightfully considered the averments in the Statement of Defence and Amended Counterclaim (see paragraphs 2, 3, 4 and 5 of the Amended Statement of Defence at pages 1379 to 1381 of Volume 3 of the Records and paragraph 2 of the Amended Counterclaim at page 987 of Volume 2 of the Records) and I am satisfied that they disclose some cause of action or some questions fit to be decided by a Judge. The lower Court after due consideration of the case entered judgment on the counterclaim, signifying that the Appellants did not have a proper defence to the counterclaim. Accordingly, since the Respondent had disclosed a cause of action against the 2nd Appellant based on the averments in its pleadings, the lower Court was imbued with the jurisdiction to entertain the counterclaim against the 2nd Appellant. This issue is therefore resolved in favour of the Respondent.
ISSUE NUMBER THREE
Whether the lower Court was right when it refused the exchange rate of N132 to 1 dollar for the payment of the contractual fee of the Respondent.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The conspectus of the Appellants’ submission is that the lower Court was in error when it refused to adopt the exchange rate of N132 to $1 used for the payment of the contractual fee which the Respondent sought to enforce in its counterclaim. It was stated that the Appellants pleaded that their contract with Chevron Nigeria Ltd was based on the exchange rate of N132 to $1 and that the said averment not having been challenged or denied required no further proof vide KYARI vs. ALKALI (2001) 11 NWLR (PT 724) 412 at 435, NBC PLC vs. UBANI (2014) 4 NWLR (PT 1398) 421 at 475 and WAZIRI vs. ALI (2009) 4 NWLR (PT 1130) 178 at 216-217. It was further submitted that evidence was further adduced by the CW1 that the payment due to the Respondent would be calculated based on the same rate, even though the Respondent was not a party to the contract between Appellants and Chevron Nigeria Limited, since the contract with Chevron Nigeria Limited was the mother contract. It was opined that based on the said exchange rate of N132 to $1, the Appellants had completely paid the Respondent its entitlement for services rendered under the consultancy.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent argues that the Appellants’ action is not based on the contract between the Appellants and the Respondent, and that their averments on conversion rate therefore went to no issue. The Respondent it was stated, pleaded that the payment due to it was based on a percentage of the amount approved by Chevron per change/variation which was denominated in Naira and Dollars and that the Appellants in their Reply to the Counterclaim did not plead any fact as to N132 to $1 conversion as a result of which the Respondent’s averments are taken as admitted vide KYARI vs. ALKALI (supra).
It was further contended that the documentary evidence adduced shows that the payment due to the Respondent was based on a percentage of the gross amount approved per change/variation which is denominated in Naira and Dollars and that documentary evidence is used as the hanger with which to assess oral evidence. The case of ANAMBRA STATE GOVT vs GEMEX INTERNATIONAL LTD (2012) 1 NWLR (PT 1281) 333 and 357 was relied upon.
It was posited that parties are bound by the terms of their agreement and the Court is to give effect to the agreement freely entered by the parties vide A. I. INVESTMENTS LTD vs. AFRIBANK (NIG) PLC (2013) 9 NWLR (PT 1359) 380 at 408-409. Oral evidence it was stated will not be allowed to contradict or alter the contents of a document. The cases of CARGILL VENTURES LTD vs. COASTAL SERVICES (NIGERIA) LTD (2012) 9 NWLR (PT 1304) 60 at 81, COLONIAL DEVELOPMENT BOARD vs. KAMSON (1955) 21 NLR 75 and IMNL vs. PEGOFOR INDUSTRIES LTD (2005) 15 NWLR (PT 947) 1 were cited in support. The judgment of the lower Court it was asserted was based on the terms of the contract between the parties.
APPELLANTS REPLY ON LAW
In the Reply Brief the Appellants maintain that the Respondent did not traverse their averment as to the conversion rate being N132 to $1 and that the averment is deemed admitted vide KYARI vs. ALKALI (supra), NBC PLC vs. UBANI (supra) and WAZIRI vs. ALI (supra) at 216-217.
RESOLUTION OF ISSUE NUMBER THREE
It is a hornbook principle of law that a person who is not a party to a contract cannot be bound by it. SeeA-G FEDERATION vs. A.I.C. LTD (2000) LPELR (628) 1 at 30 and CITY EXPRESS BANK vs. T. F. SERVICES LTD (2005) ALL FWLR (PT 266) 124. It is agreed on all sides that the Respondent is not a party to the contract between the Appellants and Chevron Nigeria Ltd, so the provisions in the said contract as it relates to the conversion rate of N132 to $1 will not bind the Respondent except where the contract was incorporated into the Respondent?s contract with the Appellants.
In the old English case of PRINTING & NUMERICAL REGISTERING CO. vs. SAMPSON (1875) LR 19 EQ. 482 at 485 it was held that if there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by the Courts of justice. Parties are bound by the terms of their contract and it is not the function of a Court to make a contract for the parties or rewrite the one which they have made. See UBN vs. OZIGI (1994) 3 NWLR (PT 333) 385 at 404, OYENUGA vs. PROVISIONAL COUNCIL, UNIVERSITY OF IFE (1965) NMLR 9 and BEST (NIGERIA) LTD vs. BLACKWOOD HODGE (NIGERIA) LTD (2011) LPELR (776) 1 at 23. Therefore at the pith of the resolution of this issue is the terms of the contract between the parties on the payment due to the Respondent.
It is not confuted that the TRU Project Contract between the Appellants and Chevron Nigeria Limited is denominated in Naira and Dollars. The consultancy contract between the Appellants and the Respondent is for the variation/change order of the said contract as denominated in Naira and Dollars. The letter by which the Appellants engaged the Respondent as a consultant is Exhibit CW1 10. It is dated 26th May 2008. In the said letter of appointment the Appellants, inter alia, stated as follows:
‘Your scope of work and terms/conditions are as contained in the reversed [sic] proposal submitted by yourselves and accepted by our management for implementation with regard to the on-going CNL-TRU project in Escravos. The reversed [sic] proposal accordingly forms part of this appointment letter for the purpose of your work as our CNL-TRU project Change Order and Variation Consultant.’
In the said revised proposal which was incorporated by reference, the consultancy fees due to the Respondent was stated to be:
‘Consultancy fees – 1.0% of all Gross Amounts
Approved per Change/Variation Order.’
It is effulgent that the fees as agreed does not provide for conversion of the fees from Naira to Dollars or vice versa. The agreement provides for payment of 1% of the Gross Amount Approved per change/variation order. The only reasonable interpretation is that the fee is 1% of the change/variation in whatever currency the approval might be, since the contract being changed/varied is denominated in both Naira and Dollars. The terms of the contract between the parties are to be read as they are without any embellishments and no terms extraneous to the contract on which there was no agreement between the parties can be read into the contract. See OFORISHE vs. NIGERIA GAS COMPANY LTD (2017) LPELR (42766) 1 at 10, KOIKI vs. MAGNUSSON (1999) 8 NWLR (PT 615) 492 and BABA vs. NIGERIA CIVIL AVIATION TRAINING CENTRE, ZAIRA (1991) LPELR (692) 1 at 64.
The provisions of the contract between the Appellants and Chevron Nigeria Limited are extraneous to the contract between the Appellants and the Respondent; accordingly the terms thereof on the rate of conversion cannot be read into the contract between the Appellants and the Respondent. It accordingly becomes irrelevant and of no moment if the averment on the rate of conversion was not controverted or challenged and if the viva voce evidence adduced in that regard was not rebutted. The said terms cannot be read into the contract between the Appellants and the Respondent. If the parties had desired the same to apply then it could have either been inserted into their contract or incorporated by reference. It was not. SeeA. G. FERRERO & CO. LTD vs. HENKEL CHEMICALS (NIG) LTD (2011) LPELR (12) 1 at 17-18 and AGBAREH vs. MIMRA (2008) 2 MJSC 134.
Apropos of the foregoing, this issue number three must be resolved against the Appellants. The lower Court was right when it refused to apply the exchange rate of N132 to $1 for the payment of the contractual fee of the Respondent as it was not a term of the contract voluntarily and freely entered into between the Appellants and the Respondent. Pacta sunt servanda!
ISSUE NUMBER FOUR
Whether the lower Court was right in refusing to award legal cost paid by the Appellants in the prosecution of their case.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the lower Court was wrong when it refused to award the legal costs of the Appellants on the ground that the same was not proved. It was stated that the Appellants claim for libel having succeeded, the Appellants were entitled to the claim for the legal cost expended for the prosecution of the claim. The averments in the Appellants pleadings on the fees paid to their Solicitors, which it was stated was not controverted, were referred to and it was stated that not having been denied were deemed admitted and required no further proof vide NBC PLC vs. UBANI (supra), WAZIRI vs. ALI (supra) and KYARI vs. ALKALI (supra).
The Appellants further submit that evidence was further adduced and receipts tendered showing the fees paid to their Solicitors and it was stated that though the documents established a lesser sum than what was claimed, the lower court should have entered judgment for the lesser amount proved. The case of BADMUS vs. ABEGUNDE (1999) 11 NWLR (PT 627) 493 at 507 was referred to.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent argues that special damages must be specifically and strictly proved and that the fact that evidence is unchallenged does not invariably mean that the Court must rely on it as proof of special damages vide AIR LIQUIDE NIGERIA PLC vs. NNAM (2011) 9 NWLR (PT 1251) 61 at 82. It was contended that the Appellants had a duty to itemise and particularize the items constituting special damages and not to generally refer to it as legal costs without specifying what it comprises. The cases ofAKINKUGBE vs. E. H. NIGERIA LTD (2008) 12 NWLR (PT 1098) 375 at 401-402, 404-405 and WEMA BANK PLC vs. I. I. T. (NIG) LTD (2011) 6 NWLR (PT 1244) 479 at 509 were relied upon.
The Respondent urged the court to invoke Section 83 (3) of the Evidence Act and expunge the receipts tendered by the Appellants for having been made during the pendency of the litigation. The cases of CHUKWU vs. FRN (2013) 12 NWLR (PT 1369) 488 at 509 and KUBOR vs. DICKSON (2013) 4 NWLR (PT 1345) 534 at 579 were cited in support. It was further contended that having awarded the Appellants general damages for libel, any other award of damages will be tantamount to double compensation. The case ofOZIGBU ENG CO. LTD vs. IWUAMADI (2009) 16 NWLR (PT 1166) 44 at 61-62 and UBN PLC vs. EMOLE (2001) 18 NWLR (PT 745) 501 were called in aid. It was conclusively stated that the receipts tendered by the Appellants on fees paid to their Solicitors was at variance with the pleadings and therefore went to no issue and the pleadings in that regard remain unproved and abandoned vide AKUBUIRO vs. MOBIL OIL NIG PLC (2012) 14 NWLR (PT 1319) 42 at 84 and ARTRA INDUSTRIES (NIG) LTD vs. NBCI (1998) 4 NWLR (PT 546) 357.
APPELLANTS’ REPLY ON LAW
The Appellants maintain that they duly itemized the legal expenses they incurred and that it was not for them to explain on behalf of the law firms what part of their services the legal fees were applied to. It was stated that general damages is different from special damages and that the award of general damages for libel will not make it double compensation where the special damages for legal fees claimed is awarded.
It was further argued that the claim for legal cost can be characterized as cost of legal representation which is cognisable under Order 49 Rule 1 (1) (a) of the High Court of Lagos State (Civil Procedure) Rules, 2012 and that the Court should grant the relief. It was further asserted that the receipts tendered were not at variance with the pleadings but established an amount lesser than the amount claimed; and that the Court should have awarded the lesser amount proved vide BADMUS vs. ABEGUNDE (supra). It was conclusively submitted that there is no appeal against the admissibility of the receipts tendered in proof of the fees paid by the Appellants and the Respondent cannot be heard to submit that the receipts were inadmissible. The case of FAAN vs. GREENSTONE (supra) at 649 was relied upon.
RESOLUTION OF ISSUE NUMBER FOUR
I have ruminated and mulled over the nature of this relief claimed by the Appellants as legal cost. The relief as claimed on page 1424 of Volume 3 of the Records of Appeal is as follows:
‘Legal Cost in the sum of N22, 800,000.00 (Twenty Two Million Eight Hundred Thousand Naira) only.’
What is legal cost? Is it synonymous with a claim for Solicitors fees? Put differently, is the relief for legal costs a claim for Solicitors fees for the conduct of the action? Any doubt as to the nature of the relief is laid to rest by paragraph 34 of the Further Amended Statement of Claim where it is averred as follows:
34. The Claimants employed the services of Chief Philip Ndubuisi Umeh & Co and Babatunde Olubando & Co to prosecute this suit and incurred legal expenses in the sum of N22,800,000.00 (Twenty-Two Million Eight Hundred Thousand Naira) and the Claimants have paid the sum of N14,000,000.00 (Fourteen Million Naira) to Chief Philip Ndubuisi Umeh and N1,800,000.00 (One Million, Eight Hundred Thousand Naira) to Babatunde Olubando & Co leaving an outstanding balance of N7,000,000.00 (Seven Million Naira). The receipts issued by Chief Philip Ndubuisi Umeh & Co and the receipt and bill of fees of Babatunde Olubando & Co are hereby pleaded.?
(See pages 1423-1424 of Volume 3 of the Records of Appeal)
Therefore, notwithstanding the appellation or cognomen ‘legal cost’, it is clearly a claim for Solicitors fees for prosecuting the action. This fact is laid to rest and interred by the submission in paragraph 1.20 of the Appellants Reply Brief where it is stated thus:
1.20. It is, therefore, reasonable for this honourable Court to award the proven sum of N22,800,000.00 as either special damages same having arisen out of cost of representation in an action involving the tort of libel or as cost of legal representation simpliciter under Order 49 of the High Court of Lagos State (Civil Procedure Rules, 2012).
Now, is the ‘cost of representation in an action’ part of the Appellants, cause of action, The Appellants’ cause of action is for libel. Is the cost of his Solicitors fees part of that cause of action? Paucis verbis, in the diacritical circumstances of this matter are the Appellants entitled to the award of the relief of their Solicitors fees, legal cost or by whatever name called’ In MICHAEL vs. ACCESS BANK (2017) LPELR (41981) 1 at 48-49, I was privileged to state at follows:
‘…it seems to me that a claim for Solicitors fees which does not form part of the cause of action is not one that can be granted. A relief which a claimant in an action is entitled to, if established by the evidence, are those reliefs which form part of the claimant’s cause of action. From the Respondent’s pleadings, its cause of action is the alleged defamation of its corporate name by the Appellant. The claim for Solicitors fees for defending the Appellant’s action and for prosecuting its counterclaim in respect of its said cause of action does not form part of the Respondent’s cause of action.
In GUINNESS NIGERIA PLC vs. NWOKE (PT 689) 135 at 159 this Court held that a claim for Solicitors fees is outlandish and should not be allowed as it did not arise as a result of damage suffered in the course of any transaction between the parties. Similarly, in NWANJI vs. COASTAL SERVICES LTD (2004) 36 WRN 1 at 14-15, it was held that it was improper, unethical and an affront to public policy, to have a litigant pass the burden of costs of an action including his Solicitors fees to his opponent in the suit. Therefore, I think that on the current state of the law, a claim for Solicitors fees, which does not form part of the claimant’s cause of action is not one that can be granted.
This remains the legal position as I know it. The Appellants cause of action was for libel. The claim for legal costs is not part of the said cause of action. Therefore, it cannot be granted.
The Appellants in argument introduced the provisions of Order 49 Rule 1 (1) (a) of the High Court of Lagos State (Civil Procedure) Rules, 2012 and urged the Court to award the legal cost claimed based on the said provision. Even though the said provision deals with the costs of an action as opposed to legal cost or Solicitors fees claimed by the Appellants, 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 loss 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 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 Appellants 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. The said provision only becomes applicable after the Court has exercised discretion in favour of awarding costs and serves as a guide for the Court in deciding on the amount to award as costs.
It has to be remembered that there was a claim and a counterclaim before the lower Court. The parties registered relative successes in their respective claim and counterclaim. So it was not a win-win for either party at the lower Court.
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 acceding to the Appellants submission to award legal costs of N22.8million under Order 49 Rule 1 (1)(a) of the High Court of Lagos State (Civil Procedure) Rules, 2012 would be granting the Appellants an unwarranted bonus, and unjustly mulcting the equally successful Respondent in costs. The decision of the lower Court on the claim for legal costs is the correct decision and the same could not have been awarded pursuant to Order 49 of the High Court of Lagos State (Civil Procedure) Rules as it is not within the ambit of the said provision.
In wrapping up the resolution of this issue number four, let me state that an appellate Court is only concerned with whether the decision appealed against is correct and not whether the reasons therefor are correct. Where the decision is correct, it is of no moment if the reasons given are wrong; an appellate Court will not interfere. In the words of Edozie, JSC (of blessed memory) in NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 220:
‘An appellate Court is only concerned with whether the judgment appealed against is right or wrong, not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere.’ See also DAIRO vs. UNION BANK (2007) 16 NWLR (PT 1059) 99 at 161 and POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36.
The decision of the lower Court not to award the relief of legal cost claimed by the Appellants is the correct decision. This Court will therefore not interfere. Accordingly, this issue number four is resolved against the Appellants.
ISSUE NUMBER FIVE
Whether the lower court was right when it ordered the Appellants to pay interest on the judgment sum at the rate of 10% per annum from July 2010 until judgment.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants argue that the lower Court was wrong to have awarded pre-judgment interest on the judgment debt in favour of the Respondent. It was stated that having adjudged the amount due to the Respondent and that the same should be set off from the amounts which the Appellants had already paid to the Respondent, that it would be double compensation for the Appellants to pay interest on sums it had already paid to the Respondent.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the pre-judgment interest as ordered by the lower Court would only be arrived at after the set off ordered by the Court is applied since the judgment sum cannot exist independently of the right to set off as ordered.
RESOLUTION OF ISSUE NUMBER FIVE
The Appellants have not contended that an order for pre-judgment interest ought not to have been made in the circumstances of this case. Their contention as I understand it is that the pre-judgment interest can only be paid on any amount outstanding after the set off. I have earlier stated in the course of resolving issue number one herein that the judgment sum remained inchoate until the setting off as ordered by the lower Court is done. The order of the lower Court on pre-judgment interest is as follows:
‘The Claimant/Defendant to the Counter-Claim is further ordered to pay interest on the judgment sum at the rate of 10% per annum from July 2010 until judgment and thereafter at the same rate until the entire debt is liquidated.?
(See page 1625 of Volume 3 of the Records)
The pre-judgment interest as ordered is to be paid on the judgment sum and the judgment sum will be the product of the setting off of the amount adjudged due to the Respondent in the judgment from the amounts which the Appellants had already paid to the Respondent. There is nothing obfuscatory in this, or which may require the Appellant to pay pre-judgment interest on the monies they had already paid to the Respondent. It is when the setting off has been done and the judgment sum is arrived at, that the amount to which the pre-judgment interest will apply will be known and effected. The lower Court was therefore right in the order for pre-judgment interest. This issue number five is resolved against the Appellants.
The harbour looms into sight and it is now the appropriate time to navigate to the quays and berth the vessel of this judgment at anchor. Having considered the issues for determination, though issue number one was resolved in favour of the Appellants, all the other four issues were resolved against the Appellants. Concomitantly, the appeal is devoid of merit and it is hereby dismissed. There shall be no order as to costs.
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, JCA, and I am in agreement with the judgment. I too join my learned brother in dismissing this appeal for being devoid of merit.
I also abide by all consequential orders 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:
Dr. Muiz Banire, SAN with him, Adebayo Badmus, Esq., Ms. Adesumbo Odukoya and Ms. Omolabeke OniFor Appellant(s)
Tochukwu Onyiuke, Esq. with him, Ms. Emma NdiyoFor Respondent(s)
