DOYIN MOTORS LIMITED v. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED & ORS
(2018)LCN/12383(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of February, 2018
CA/L/328/2014
RATIO
APPEAL: WHETHER THE COURT CAN INTERFERE WITH FACT
“The Court below accordingly reached the correct or right conclusion that the appellant did not prove this aspect of its claim vide Ukejianya v. Uchendu 13 W.A.C.A. 41 at 45, Lebile v. Registered Trustees of Cherubim and Seraphim (2003) 1 S.C. (pt. 1) 25, Taiwo and Ors. v. Sowemimo (1982) 5 S.C. 60 at 74 – 75, Ndayako and Ors. v. Dantoro and Ors. (2004) 13 NWLR (pt.689) 182, M. M. Alli Co. Ltd. v. Goni (2006) 10 NWLR (pt. 987) 88, N.B.C. Plc v. Olarewaju (2007) 5 NWLR (pt.1027) 255 at 198 to the effect that an appeal Court is concerned whether the decision arrived at by the trial Court is right not necessarily the reasons for the decision save if the reasons are intertwined with the decision.” PER JOSEPH SHAGBAOR IKYEGH J.C.A
CONTRACT: GENERAL PRINCIPLE ON PRIVITY OF CONTRACT
“It was argued by the appellant that the 1st respondent was not a party to the agreement between the appellant and its staff on the terms of employment, so the 1st respondent cannot venture into or reap from the agreement on ground of privity of contract. True, a stranger to a contract cannot benefit from or use the contract. But in this case the appellant was deemed to be aware of and consented to the 1st respondent making the payments to its staff for wages and emoluments due or in arrears thus relieving the appellant from discharging its financial obligation to the staff on the just and fair consideration that a worker or labourer deserves his wages for labour offered or done which is a remarkable exception to the privity of contract concept.” PER JOSEPH SHAGBAOR IKYEGH J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
DOYIN MOTORS LIMITED – Appellant(s)
AND
1. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
2. MANDILAS ENTERPRISES LIMITED
3. ACCESS BANK PLC – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal emanated from the decision of the High Court of Justice of Lagos State (the Court below) by which the claim of the appellant for damages of N1,012,430,211.91 for breach of contract with 19% prejudgment interest and 10% post judgment interest thereon and some declaratory reliefs hinged on the alleged contract was dismissed in its entirety and the counter-claim of N200, 194,975.22 by the 1st respondent was granted against the appellant together with N500,000 costs against the appellant in favour of the 1st respondent and N250,000 costs against the appellant in favour of the 2nd and 3rd respondents, respectively.
In a nutshell, the case of the appellant at the Court below was that upon successful bidding, it was awarded a contract by the 1st respondent for operation and maintenance of 1st respondent’s (SPDC) light vehicles in the western Division for a period of 3 years, effective from 01-01-2006 to 31-12-2008. The appellant allegedly provided the services and equipments to the 1st respondent in accordance with the contract. At the close of business, the 1st respondent allegedly owed the appellant the sum of N664, 339,092.95.
With respect to the 2nd respondent, the appellant’s grouse was that contrary to the terms of the contract the 2nd respondent interfered with the contractual relationship between the appellant and the 1st respondent by receiving jobs of the same type from the 1st respondent during the duration of the contract between the appellant and the 1st respondent.
In the case of the 3rd respondent, the appellant alleged that it sourced a loan of N80,000,000 from the 3rd respondent to finance the contract. The loan was granted on terms and conditions to the effect that the domiciliation of all proceeds from the contract with the 1st respondent shall be paid by the 1st respondent into an account opened by the appellant with the 3rd respondent as well as salaries of all the employees of the appellant involved in providing of services to the 1st respondent under the contract. The appellant complied with the terms and conditions and was granted the loan. It opened an account with the 3rd respondent bank at Warri to that effect. The 1st respondent at all material times used to make payments to the appellant through First Bank Plc.
In accordance with the appellant’s instruction the 1st respondent initially made payments to the specified account of the appellant but she subsequently failed to do so and, instead, allegedly diverted monies owed the appellant by the 1st respondent to third party accounts with the 3rd respondent with the collusion of the 3rd respondent. The said payments included unauthorised bonuses allegedly made to the employees of the appellant contrary to the terms of the contract which amounted to loss of N389,085,923.29 from the unauthorised payments and N275,313,169.56 representing the excess from various unauthorised deductions.
The 1st respondent’s case at the Court below was that although there was the said contract between her and the appellant, the latter breached it in several ways by failure and refusal to pay its staff and personnel which degenerated into threat to industrial action which the 1st respondent averted by paying the outstanding emoluments to the appellant’s workers and personnel to prevent the crippling of her operation by an industrial action; and that the 1st respondent was not indebted to the appellant, nor liable as claimed by the appellant.
The 2nd respondent’s case at the Court below was that the 1st respondent was not precluded by the contract between her and the appellant to award other jobs to it, therefore the 2nd respondent did not interfere with the contractual relationship between the appellant and the 1st respondent.
The 3rd respondent’s case at the Court below was total denial of dealing with the appellant’s bank account in the manner alleged by the appellant and maintained that it observed the highest ethical standards of banking practice in dealing with the account in question and was therefore not liable to the appellant.
The Court below found in its judgment at the end of the day or trial that the appellant did not prove its case in that the appellant was aware of and consented to the payment of salaries to its workers and personnel by the 1st respondent; that no evidence was given of any particular equipment supplied or service rendered that was unpaid for by the 1st respondent; and that the other legs of claim were not proved on the preponderance of evidence upon which the Court below dismissed the appellant’s case in favour of the 1st respondent.With respect to the 2nd respondent, the Court below held in its judgment that the contract between the appellant and the 1st respondent placed no obligation on the 1st respondent to use the services of the appellant solely and exclusively as stated in Section 11 Article 5.7 of the contract which gave the 1st respondent power to award some contracts associated with the works to other persons upon which the Court below dismissed the action in favour of the 2nd respondent.
The Court below also held that there was no evidence to warrant finding against the 3rd respondent that she breached her obligation to the appellant as she did not collude with the 1st respondent to divert monies meant for the appellant from the 1st respondent into third party accounts upon which the Court below dismissed the case in favour of the 3rd respondent.
Regarding the counter-claim of the 1st respondent the Court below relied on Section II Article 18.8 of the contract to hold that the 1st respondent was entitled to make the deductions and granted the counter-claimed sum of N200,194,975.22 in favour of the 1st respondent.
Aggrieved with the decision of the Court below, the appellant filed a notice of appeal with 5 grounds of appeal. In a brief of argument filed on 13-06-14, the appellant contended that the 1st respondent breached the contract by unilaterally paying salaries, bonuses and leave allowances to the appellant’s employees without the consent and authority of the appellant instead of making the payments to the appellant for services rendered which the 1st respondent failed to pay vide Section 11 Article 10 of Exhibit P15, the contract document, Exhibits P22, P26 and the oral evidence for the appellant coupled with the admission by the DW1 for the 1st respondent under cross-examination in pages 1385 and 1387 of the record of appeal (the record); that the staff or workers engaged by the appellant were the employees of the appellant who was responsible for payment for their labour; therefore the 1st respondent breached the binding terms of Exhibit 15 contrary to the sanctity and privity of contract citing in support the cases of Kaydee Ventures Ltd. v. The Hon. Minister FCT and Ors. (2010) LPELR – 1681 (SC), Ladipo v. Lajide (1973) 5 S.C. 207 at 225, C.R.S.W.B. v. N.C.E. Ltd (2007) WRN (vol.18) 132 at 152, Makwe v. Nwukor (2001) 7 S.C. (pt. 1) 1 at 26.
The appellant contended in the brief that the 1st respondent stopped payment for the services rendered by the appellant in 2007, but paid the workers employed by the appellant up to December, 2008 vide Exhibit P26, therefore the unpaid invoices especially Exhibits P31, P32, P35, P36 and P37 which were not disputed by the 1st respondent who was entitled to dispute the invoices by returning them to the appellant as required by Article 18.6 Section 11 of Exhibit P15, which she did not, established the appellant’s case for the unpaid invoices in line with Articles 2, 4, 10 and 18.6 of Exhibit P15, consequently the Court below should have held the 1st respondent bound by Exhibit P15, the contract document, vide Artra Ind. Ltd. v. N.B.C.I. (1997) 1 NWLR (pt.483) 593, Agbareh v. Mimra (2008) 2 NWLR (pt.1071) 378 at 412 – 413, Larmie v. D.P.M.S. Ltd. (2005) 12 S.C. (pt.1) 93.
The appellant contended in the brief that having regard to the domiciliation agreement, Exhibit P8, between the 3rd respondent and the appellant which according to the appellant, the Court below wrongly held was not a domiciliation agreement, the 3rd respondent breached the contract to credit all the proceeds of the contract between the appellant and the 1st respondent in the appellant’s account when it paid the monies out to third parties without the consent or approval of the appellant, therefore the Court below should have found the 3rd respondent liable for breach of contract citing in support the cases of Obajimi v. Adediji (2008) 3 NWLR (pt.1073) 1 at 16 – 17, Larmie v. Data Processing Maintenance and Services (D.P.M.) Ltd. (2005) 12 S.C. (pt.1) 93 at 103, S.P.D.C. (Nig.) Ltd. v. Allaputa (2005) 9 NWLR (pt.931) 475 at 503, 516, Fagge v. Tukur (2007) All FWLR (pt.387) 876 at 898 and Okonkwo v. C.C.B. (Nig.) Plc (2003) 8 NWLR (pt.822) 347.
The appellant contended that the objective of awarding costs is not to punish an unsuccessful litigant but to reasonably compensate the successful party for the expenses to which he has been put and that costs should not be arbitrary, excessive or oppressive, therefore the award of N500,000 costs against the 1st respondent was not a judicious and judicial exercise of discretion by the Court below citing in support the cases of ACB and Anor. v. Ndoma-Egba (2000) LPELR 10532, Olusanya v. Osinleye (2013) LPELR 20641, A.C.B. Ltd. v. Ajugwo (2012) 6 NWLR (pt. 1295) 97 at 131 – 132, Layinka v. Makinde (2002) 5 S.C. (pt.1) 122; upon which the appellant urged that the appeal be allowed and the judgment of the Court below set aside and in its place judgment be entered for the appellant in terms of the reliefs sought in the statement of claim at the Court below.
The 1st respondent submitted in the brief of argument that based on Exhibits P4 and P48 the appellant was aware of and consented to the other payments made by the 1st respondent to the appellant’s staff which were based on the evidence of Dw1 in pages 998 – 999 of the record and which was captured by Exhibit P6 which formed part of the specific finding of fact made by the Court below in pages 1421 – 1422 of the record which was not appealed against, therefore the appellant is deemed to have admitted the finding and is accordingly bound by it vide Jimoh v. Akande (2009) 5 NWLR (pt. 1135) 549 at 485; that the appellant did not respond to these letters (Exhibits P4 and P5) showing the appellant admitted the contents of the same vide Cooperative Bank Plc v. Arc. Mfon Ekanem and Ors. (2009) 10 NWLR (pt. 1168) 585 at 601.
Consequently, the 1st respondent submitted that in the light of the fact that she had to mitigate damages by paying the salaries to the staff of the appellant when the appellant was in arrears thereof and there was a looming industrial action on account of the salaries that fell due to the staff of the appellant, the 1st respondent was justified in paying the said salaries vide Benin Rubber Producers Ltd. v. Ojo (1997) 9 NWLR (pt.521) 388 at 411 – 412.
It was also submitted that by Schedule II Article 18.8 of the contract document, Exhibit 64, the 1st respondent was justified in paying the salaries and emoluments of the appellant’s staff; that NAPIMS is a moral mediator and acted in advisory capacity in Exhibit P26, therefore it would be contrary to the contractual relationship between the appellant and the 1st respondent for a third party to interfere with the said contractual relationship either by collusion or connivance to read into the contract what is not there vide Kurubo v. Zach-Motison (Nig.) Ltd. (1992) 5 NWLR (pt.239) 102 at 116, Olatunde v. O.A.U. (1998) 5 NWLR (pt.549) 178, Makwe v. Nwukor (2001) 14 NWLR (pt.733) 356 at 372.
It was further submitted by the 1st respondent that based on Article 18.8 of Exhibit 64, (the contract document), the 1st respondent was entitled to reimbursement from the appellant for the staff salaries and emoluments paid by the 1st respondent to the staff of the appellant with the knowledge and consent of the appellant who did not dispute the payments, therefore the Court below was right in deducting the monies due to the appellant from N389,085,923.29 leaving the balance of N200, 194,975.22 as the same was based on the evidence tendered at the Court below especially Exhibits D12 – D16 upon which findings of fact were made by the Court below in its judgement in pages 1427 – 1428 of the record which were not challenged in the appeal and should therefore be deemed admitted by the appellant vide Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (pt.39) 1 at 30, Kasa v. State (1994) 5 NWLR (pt.344) 269 at 289, S.C.C. (Nig.) Ltd. v. Anya (2012) 9 NWLR (pt.1305) 213 at 222.
The 1st respondent referred to Section II Articles 18.4 and 18.5 of Exhibit P64 in page 27 of the record to urge that the clauses thereof be given literal meaning vide the case ofU.B.N. v. Ozigi (1994) 3 NWLR (pt. 333) 385 at 404 and when so construed the first step towards making payments is for the invoice to be submitted by the appellant showing it was correctly prepared and adequately supported by both representatives of the appellant and the 1st respondent signing it upon which the submission of the invoice becomes not only material but critical which was not the case with Exhibits P31 and P32 in pages 301 – 316 of the record and the evidence of PW2 under cross-examination in page 1375 of the record to the effect that invoices had to be jointly signed by the appellant and the 1st respondent before they would be valid for payment, therefore the 1st respondent acted rightly by not making payments on such invoices vide Section 11 Article 18.6 of Exhibit P64; more so Exhibits P31 and P32 had no date of receipt by the 1st respondent written on them as required by the terms of the contract, Exhibit P64.
It was also argued that whereas Exhibit P32 was dated 03.06.2009, the attached supportive documents for each month of March, 2008 to December, 2008 were prepared on 14.10.2008 for services said to have been rendered on 31.10.2008, so to expect the 1st respondent to pay for services not rendered would be allowing the appellant to profit by its own wrong vide F.B.N. Plc v. Songonuga (2007) 3 NWLR (pt. 1021) 230 at 280, Sosan v. H.F.P. Eng. (Nig) Ltd. (2004) 3 NWLR (pt.861) 546; that there was no written demand for the invoices as the invoices in Exhibits 23 – 25 were premature and irrelevant having not met the time-frame of 45 days at the time the letters of demand were written; and that by Article 18.6 of Section 11 of Exhibit 64 in pages 27 -28 of the record, the 1st respondent was obliged not to pay the invoices, Exhibits P31 and P32, therefore the Court below was right in holding in its judgment in pages 1420 – 1421 of the record that the appellant had not shown his entitlement to the invoices as they were not signed jointly by the appellant and the 1st respondent???s representative as required by the terms of the contract, Exhibit P64.
The 1st respondent submitted that costs normally follow event and that as the action took over 4 years to conclude, the award of costs of N500,000 to the 1st respondent was reasonable and amounted to judicious and judicial exercise of discretion by the Court below, therefore there is no basis for the Court to interfere with the said award vide Adelakun v. Oruku (2006) 11 NWLR (pt. 992) 625 at 646, N.B.C.I. v. Alfijir (Mining) Nig. Ltd. (1999) 14 NWLR (pt. 638) 179, Oyeneyin v. Akinkugbe (2010) 4 NWLR (pt. 1184) 265 at 288, Shukka v. Abubakar (2012) 4 NWLR (pt. 1291) 497 at 526, A.C.B. Ltd. v. Ajugwo (2012) 6 NWLR (pt. 1295) 97, International Offshore Construction Ltd. v. S.L.N. Ltd. (2003) 16 NWLR (pt. 845) 157; accordingly, the 1st respondent advocated for the dismissal of the appeal.
The reply brief to the 1st respondent’s brief filed by the appellant on 17.01.17 pointed out that ground 1 of the notice of appeal challenged the finding of the Court below that the appellant was aware of and consented to the payments made by the 1st respondent to the appellant’s staff contrary to the contract between the appellant and the 1st respondent; that apart from Exhibit P22 which was the only single consent given by the appellant upon application by the 1st respondent for one-off payment which was never ever paid by the 1st respondent there was no other evidence that the appellant was aware of and consented to the payments, so the finding of the Court below to the contrary is perverse and should be set aside vide Anekwe v. State (2014) 5 S.C. (pt. 111) 35 at 75 – 76, Obisanya v. Nwoko (1974) 6 S.C. 69 at 80, Obodo and Anor. v. Ogba and Ors. (1987) 2 NWLR (pt. 54) 1, Jimoh Michael v. The State (2008) 5-6 S.C. (pt. 11) 203.
The reply brief also contended that the payments of the salaries to the appellant’s staff was in breach of the terms of the contract and was designed to frustrate and render the appellant prostrate by the 1st respondent not paying its invoices, therefore the allegation of threats to strike was no excuse for the 1st respondent to avoid her contractual obligation to the appellant; that had the appellant breached any terms of the contract the 1st respondent had the right under the contract to terminate it; and that the 1st respondent ignored the resolution made by NAPIMS in Exhibit P26 imploring the 1st respondent to stop deducting money from the invoices of the appellant and to pay the appellant the contract sum as and when due and also to stop paying the appellant’s staff directly which the 1st respondent ignored, so the stance by the 1st respondent that she paid the staff of the appellant to mitigate damages was self-inflicted in order to avoid the contractual obligation.
The reply brief further stated that Section 11 Article 10.3, 10.5 and 10.6 of Exhibit P15 provided for the appellant to pay its staff which NAPTIMS implored the 1st respondent to adhere to, but which the 1st respondent ignored even after the 1st respondent signed the resolution in Exhibit P26 to pay the outstanding invoices and to stop payment of salaries of the appellant’s staff, therefore the resolution, Exhibit P26, was a binding agreement between the parties precluding the 1st respondent from resiling from it vide Artra Ind. Ltd. v. N.B.I.C. (1992) 1 NWLR (pt. 483) 596, Folarin and Anor. v. Idowu and Ors. (2013) LPELR – 22123, Union Bank (Nig) Ltd. v. Ozigi (1994) 3 NWLR (pt.333) 385, P.A.N. Ltd. v. Oje (1997) 11 NWLR (pt. 530) 625, Amodu v. Amode (1990) 5 NWLR (pt. 150) 356, Ezerioha v. Ihezuo (2009) LPELR 4122.
It was also contended in the reply brief that the 1st respondent not being a party to the contract of employment of the staff of the appellant she was not in a position to determine their remuneration, showing the unauthorised payments were in breach of the contract, Exhibit P15, therefore the decision of the Court below ordering the appellant to reimburse the 1st respondent for the unauthorised payments in question which was challenged in ground 4 of the notice of appeal occasioned a miscarriage of justice vide Pam and Anor. v. Mohammed and Anor. (2008) LPELR 2895, Onagoruwa v. The State (1993) 7 NWLR (pt. 303) 49.
It was further contended that by section II Article 18.6 of Exhibit P15 any dispute on the invoice entitled the 1st respondent to return the invoice which she never did, nor did the 1st respondent raise any issue of incorrectly prepared invoice throughout the duration of the contract; that Exhibits P23, P24 and P25 were written demands served on the 1st respondent by the appellant to honour the invoices to no avail, nor did the 1st respondent raise the issue of incorrectly prepared invoices at the mediation by NAPIMS, therefore the failure of the 1st respondent to reply Exhibits P23, P24 and P25 raised the presumption that the 1st respondent had no objection to the invoices vide C.A.P. Plc v. Vital Inv. Ltd. (2006) 6 NWLR (pt. 976) 220 at 267.
The appellant’s reply brief to the 1st respondent’s brief reiterated the arguments on costs earlier made in the brief of argument and added the case of Registered Trustees of Ifeloju Friendly Union v. Kuku (1991) 5 NWLR (pt. 189) 65 thereto and concluded that the Court below did not exercise its discretion judiciously and judicially in awarding the N500,000 costs against it in favour of the 1st respondent, therefore the Court should Interfere with the improper exercise of discretion in the matter by the Court below and set aside the said award of costs vide Advert-Ange Ltd. v. Eskade Ventures Ltd. (2013) 46 W.R.N. 172 at 178.
The 2nd respondent’s brief of argument dated 28.08.17 and filed on 30.08.17, but deemed as duly filed on 04.12.17, contended that all the issues for determination formulated by the appellant did not relate to the findings of fact made by the Court below in favour of the 2nd respondent, therefore the appeal as it affects the 2nd respondent is academic, hypothetical and moot vide A. – G., Federation v. ANPP (2003) 18 NWLR (pt. 851) 182 at 215, Latunde and Ors. v. Lajinfin (1989) 3 NWLR (pt. 108) 177, Osinupebi v. Saibu (1982) 7 S.C. 104 at 110.
The 2nd respondent’s brief also contended that costs follow event and that the costs of N200,000 awarded by the Court below against the appellant was made judiciously and judicially and should not be disturbed vide Saeby v. Olaogun (1999) 10 – 12 S.C. 54 at 59, consequently, the 2nd respondent urged that the appeal should be dismissed.
The appellant’s reply brief to the 2nd respondent’s brief filed on 30.11.17, but deemed as properly filed on 04.12.17, pointed out that issue No. 5 was against the total costs of N1 million awarded by the Court below and is distilled from ground 5 of the notice of appeal showing the N250,000 costs awarded to the 2nd respondent against the appellant was covered by a ground of appeal and an issue for determination demonstrating that the appeal as it affects the 2nd respondent is not academic vide Total Engineering Services Team Inc. v. Chevron Nigeria Ltd. (2010) LPELR – 5032; that the costs awarded were outrageous, excessive and amounted to improper exercise of judicial discretion entitling the Court to review the exercise of discretion in the matter by the Court below vide NBCI and Anor. v. Alfijir Mining Nigeria Ltd. (1999) LPELR 2015, Olusanya v. Osinleye (2013) LPELR – 20641, Emavworhe Etajata and Ors v. Peter Ologbo and Anor. (2007) 16 NWLR (pt. 1061) 554, Agbaje v. Adelekan (1990) 11 – 12 SC 162, Okere v. Nlem (1992) 4 SCNJ 24, Agbomeji v. Bakare (1998) 7 SCNJ 33, Anisiubi v. Emordi (1975) 2 SC (Reprint) 8, University of Lagos v. Aigoro (1985) 1 SC 295.
The 3rd respondent’s brief dated 18.01.17 and filed on 23.01.17, but deemed properly filed on 04.12.17, raised a preliminary point that the grounds of appeal and the issues for determination derived therefrom do not allege any wrong-doing on the part of the 3rd respondent entitling the appellant to any remedy showing the appeal is academic, hypothetical and moot and should be struck out vide A.- G., Federation v. ANPP (2003) 18 NWLR (pt. 851) 182 at 215.
The 3rd respondent argued on the merit that Exhibit P8 which is in page 1492 of the supplementary record is not a domiciliation agreement as it was never executed in favour of the appellant and that the appellant having asserted that it was a domiciliation agreement, the onus was on it to prove the assertion which the appellant failed to discharge, therefore the Court below was right in holding that Exhibit P8 was not a domiciliation agreement vide Broadline Enterprises Ltd. v. Monterey Maritime Corp. (1995) 9 NWLR (pt.417) 1 at 24, Adighije v. Nwaogwu (2000) 12 NWLR (pt. 1209) 419 at 460 – 464.
It was also argued that First Bank of Nigeria Plc was the paying bank, while the 3rd respondent was the collecting bank of the letters made in Exhibits P10 – P14, therefore the 3rd respondent was under obligation to carry out the instructions of First Bank of Nigeria Plc as they appear in Exhibits P10 – P14 which were written by First Bank Plc and addressed to the 3rd respondent for utilisation of proceeds of bank cheques/bank drafts issued by First Bank Plc made payable to the 3rd respondent directing the 3rd respondent to credit “the accounts as per attached” for the ultimate beneficiaries made payable to the 3rd respondent by First Bank Plc by order of the 1st respondent (SPDC Warri) showing none of the cheques/bank drafts comprising Exhibits P10 – P14 were issued in favour of the appellant but for the 3rd respondent as payee as admitted by the appellant’s witnesses in pages 1366 and 1378 of the record, therefore there was no evidence that the 3rd respondent accessed funds in account number 0010007613, operated by the appellant, nor was it shown by evidence that the 3rd respondent colluded with any one nor diverted funds meant for the appellant vide Black’s Law Dictionary 9th Edition 165 on the definition of collecting bank.
The 3rd respondent contended in the brief that costs follow event and a successful party should not be deprived of costs unless for good cause vide Saeby v. Olaogun (1999) 10 – 12 S.C.45 at 59, Akinbobola v. Plisson Fisko Nig. Ltd and Ors. (1991) 1 NWLR (pt. 167) 270; and that in this case, there were at least 7 sittings of the Court below at which counsel appeared for the 3rd respondent and also filed processes for the 3rd respondent vide pages 1357 – 1394 of the record which entitled the award of the N250,000 costs to the 3rd respondent showing the Court below exercised its discretion judiciously and judicially in awarding the said costs to the 3rd respondent consequently, the 3rd respondent urged that the appeal should be dismissed.
The appellant’s reply brief to the 3rd respondent’s brief filed on 30-11-17, but deemed as properly filed on 04-02-17, referred to ground 3 of the notice of appeal in page 1430 of the record to contend that the appeal attacks the decision of the Court below with respect to the finding on domiciliation in favour of the 3rd respondent consequently the appeal is not academic, hypothetical or moot; so contended the appellant.
It was further contended in the reply brief that the one of the terms and conditions of the offer letter, Exhibit P8, was irrevocable domiciliation and assignment of monthly contract proceeds from the appellant’s contract with the 1st respondent into the appellant’s account with the 3rd respondent and with the acceptance of the terms and conditions by the appellant who also acted on it the same became binding on both parties; and that the 3rd respondent breached the contract by colluding with the 1st respondent to divert the funds for the contract to the accounts of third parties.
It was also argued that the 3rd respondent specifically admitted in paragraph 6(c) of the statement of defence that the domiciliation agreement was duly executed, therefore what is admitted in the pleadings should require no further proof vide Steel Bell Nigeria Ltd. and Ors. v. NDIG and Ors. (2014) LPELR – 23943, Oruwari v. Osler (2012) LPELR – 19764, Larmie v. Data Processing Maintenance and Services Ltd. (2005) LPELR – 1756, therefore the Court below was in “grave error” when it held that the domiciliation agreement was not executed.
It was contended that the major collateral for the repayment of the loan was the domiciliation of monthly proceeds from the contract into the account of the appellant opened with the 3rd respondent; that First Bank Plc directed 3rd respondent in its covering letter to credit the monies in question into the appellant’s account vide Exhibits P1 – P14 in pages 261, 271, 286 and 294 of the record; that the practice and course of dealing with the 3rd respondent was that a Mr. Adedoyin, the Managing Director of the appellant, signed each month’s cheque for the payment of its employees, salaries and a Mr. Adedoyin would scan the cheque for employee salaries and transmit the same via e-mail to the 3rd respondent which the 3rd respondent flouted by dealing directly with the 1st respondent in making payments directly to the accounts of the appellant’s employees without the consent and approval of the appellant, therefore the 3rd respondent did not act as collecting banker.
The appellant contended in the reply brief that the costs of N1 million awarded against it by the Court below was excessive and amounted to improper exercise of discretion which the Court can review by interfering with the award of the said costs vide Hadejia Jama’are River Basin Development Authority v. Chimande (Nig.) Ltd. (2016) LPELR 40202, Oyegun v. Nzeribe (2010) LPELR 9276 upon which the appellant finally urged that the appeal should be allowed and the decision of the Court below set aside and the reliefs sought by the appellant at the Court below be granted.
The relevant portions of Exhibit P15 (or Exhibit P64), the contract document, are copied below –
“Section II, ARTICLE 2: INTERPRETATION OF THE CONTRACT
1.1 No heading, index, title, subtitle, subheading or marginal note of the CONTRACT shall limit, alter or affect the meaning or operation of the CONTRACT.
1.2 Unless otherwise specified a reference to another Article, Clause or subclause shall be deemed to be to that same Section, Article or Clause of the CONTRACT within which the reference appears.
1.3 All correspondence, documentation and discussion with respect to the CONTRACT and the WORK shall be in the English language.
1.4 All instructions, notifications, agreements, authorizations, approvals and acknowledgments shall be in writing (which may also be by facsimile or telex).
ARTICLE 4: INVOICING
4.1 General
The CONTRACTOR shall submit invoices for the amounts due calculated in accordance with this Section III. Such invoices shall be issued in accordance with Section II – Conditions of Contract and in the manner set out in the Section headed – ADMINISTRATION INSTRUCTIONS.
4.2 Monthly Invoices
The CONTRACTOR shall submit invoices in arrears at the end of each calendar month, for the amounts due in respect of the SERVICES provided in the previous month.
ARTICLE 5: PERFORMANCE OF THE WORK
5.7 SHELL reserves the right to let other contracts associated with the WORK. The CONTRACTOR shall afford SHELL reasonable access and opportunity for the performance of their work or contracts and shall co-operate fully with such parties.
ARTICLE 10: PERSONNEL OF THE CONTRACTOR
10.3 The CONTRACTOR shall ensure that all personnel under this contract are issued with letters of employment clearly stating the conditions of service which shall include but not be limited to Basic Salary and Medical entitlements.
10.5 The CONTRACTOR shall make its own arrangements for the engagement of personnel, local or otherwise, and, save in so far as the CONTRACT otherwise provides, for their transport, housing, maintenance, payment, board and lodging.
10.6 Subject to the provisions of Clause 7 below, the CONTRACTOR shall pay rates of wages and allowances and observe hours and conditions of employment which are not less favourable than the statutory minima and shall impose like obligations on its SUBCONTRACTORS. No Variation to this contract shall be entertained for any changes in the statutory minimum wages, allowances, observed hours and conditions of employment.
ARTICLE 18: TERMS OF PAYMENT
18.4 Each invoice shall show separately the individual amounts under each of the headings in Section III – SCHEDULE OF PRICES, and shall quote SHELL Contract Reference Number, Title and SHELL REPRESENTATIVE reference indicator.
Each invoice shall be forwarded to the address specified in Section VI – ADMINISTRATIONÂ INSTRUCTIONS.
18.5 Upon the forty fifth (45th) day from receipt of a correctly prepared and adequately supported invoice by SHELL at the address specified in Clause 6 above or, in the event that the 45th day falls on a Saturday, Sunday or public and/or local holiday in Nigeria, on the immediately preceding working day, SHELL shall authorise payment in respect of such invoices as follows:
(a) For payments in Naira, SHELL shall authorise payment of the due amount into the bank account of the CONTRACTOR specified in Section VI – ADMINISTRATION INSTRUCTIONS;
(b) For payments in foreign currencies, SHELL shall authorise payment of the due amount in the appropriate currency into the bank account of the CONTRACTOR specified in Section VI – ADMINISTRATION
INSTRUCTIONS.
18.6 If SHELL disputes any items on any invoice in whole or in part or if the invoice is prepared or submitted incorrectly in any respect, SHELL shall return a copy of the invoice to the CONTRACTOR advising the CONTRACTOR of the reasons and requesting the CONTRACTOR to issue a credit note for the unaccepted part or whole of the invoice as applicable. SHELL shall be obliged to pay only the undisputed part of a disputed invoice.
If any other dispute connected with the CONTRACT exists between the parties SHELL may withhold from any money which becomes payable either the equivalent of SHELL’s estimated values of the portion of the WORK which is under dispute or the amount which is the subject of the dispute.
On settlement of any dispute, the CONTRACTOR shall submit an invoice for sums due and SHELL shall make the appropriate payment in accordance with the provisions of this Article 18.
18.7 Neither the presentation nor payment nor non-payment of an individual invoice shall constitute a settlement of a dispute, an accord and satisfaction, a remedy of account stated or otherwise waive or affect the rights of the parties hereunder.
In particular, SHELL may correct or modify any sum previously paid in any or all of the following circumstances:
(a) any such sum was incorrect;
(b) any such sum was not properly payable to the CONTRACTOR;
(c) any work in respect of which payment has been made does not comply with the terms of the CONTRACT.
18.8 If SHELL at any time incurs costs which, under the provisions of the CONTRACT SHELL led to recover from the CONTRACTOR, SHELL may invoice for such costs which shall be a debt due from the CONTRACTOR to SHELL and shall forthwith be recoverable by action, provided always that SHELL may deduct the amount of such costs from any amount due, or that may become due to the CONTRACTOR under the CONTRACT. The CONTRACTOR shall immediately pay to SHELL any sums outstanding after such deduction.
18.9 whenever a party to the CONTRACT indemnifies another party in respect of, or is entitled to recover from another party, any costs incurred then the amount of such costs shall be the amount of all claims, loss, damages, charges, disbursements, costs (including amounts paid to third parties), overheads and expenses directly resulting from the matter in question.”
The terms of an agreement, such as the contract document in Exhibit P15 or P64, is sacrosanct on the footing that parties to a contract enjoy the freedom to agree on their own lawful terms and be bound by the contract. It is not the business of the Court to rewrite the contract for the parties. The Court, however, has the responsibility to construe the contract literally and harmoniously taking into account the surrounding circumstances including written or oral statement so as to discover the intention of the parties as contained in the plain words of the contract vide BFI Group Corporation v. Bureau of Public Enterprises (2012) 18 NWLR (pt. 1332) 209 at 238 – 239 and 246 following the cases of Afrotec Tech. Services (Nig.) Ltd. v. M.I.A. and Sons Ltd. (2000) 15 NWLR (pt.692) 730, Owoniboys Technical Services Ltd. v. U.B.N. Ltd. (2003) 15 NWLR (pt. 844) 545, S.E. Co. Ltd. v. N.B.C.I. (2006) 7 NWLR (pt.978) 198, Omega Bank (Nig.) Plc v. O.B.C. Ltd. (2005) 8 NWLR (pt.928) 547. See also the cases of Ogundepo v. Olumesan (2011) 18 NWLR (pt. 1278) 54, Artra Industries Ltd. v. N.B.C.I (1992) 1 NWLR (pt. 483) 593, Agbareh (supra), Larmie (supra), Kaydee Ventures Ltd. (supra).
Except the parties agree to depart from some of the terms of the contract, no external influence such as the role played by NAPIMS in the dispute between the appellant and the 1st respondent would displace the terms of the contract. In this case NAPIMS “implored” the 1st respondent to pay the appellant direct and stop making deductions from the contract sum due to the appellant.
To “implore” simply means to beseech or beg someone to do something (Oxford Advanced Learner’s Dictionary 7th Edition 748). It has no compulsion or command leaving the person appealed to with discretion to embrace the plea or appeal or discard it. Therefore Exhibit P26 cannot, in my modest understanding, possess the potency to dislodge the terms of the contract between the appellant and the 1st respondent in Exhibit P15 or Exhibit P64Â more so mediation which was what NAPIMS did in Exhibit 26 cannot be relied upon for enforcement in Court as it is a method of non binding dispute resolution involving a neutral third party who tried to help the disputing parties reach a mutually agreeable solution (Black’s Law Dictionary Eighth Edition 1003); unlike arbitration, be it customary as in Ezerioha v. Ihezuo (supra) cited by the appellant in the reply brief to the 1st respondent’s brief, or arbitration conducted by professionals which is binding on the parties thereto.
Exhibits P2, P3, P4 and P39 showed the appellant was aware of and consented to the payment of its staff working for the 1st respondent by the 1st respondent at the material time. Exhibit P4 in particular stated –
“RE: FAILURE TO EFFECT PAYMENT OF YOUR DRIVERS’ SALARIES ON CONTRACT No. S14866 (THE OPERATION & MAINTENANCE OF LIGHT VEHICLES)
We write to express our displeasure and grave concern over your failure to pay the salaries of your staff for the months of August and September 2007 in respect of the above contract. Due to non-payment of their salaries, your staffs have disrupted our operations at the North Bank station, and have further threatened to embark on industrial action any moment from now. The looming industrial action and its potentially severe impact on our operations is totally unacceptable.
This becomes particularly so in view of our repeated emphasis to you on the importance of prompt payment of your staffs salaries as a critical success factor for the successful performance of your contractual obligations. This same message was reiterated as recently as in our letter of 10 August 2007.
Consequently, we hereby demand for immediate fulfilment of your binding contractual obligation of prompt payment of the salaries of your staff, and specifically for the outstanding months of August and September 2007, latest by Wednesday, 10 October, 2007, in order to avert the impending disruption of our operations due to your contractual breach.
Please note that your failure to pay the outstanding salaries as demanded above will leave us with no option than to resort to use our own resources to effect payment of the outstanding salaries for the two months to your staff in order to protect our business interests. Thereafter, SPDC will recover the equivalent amount of the salaries so paid from the next payment due to Doyin Motors on the contract and only pay the balance to Doyin Motors.
We trust that you will not allow our contractual relationship to deteriorate to that level.
Please find attached letter of protest dated 9th October, 2007 and e-mail of reported operational disruptions for your reference and action. These further emphasise the rather grave situation for which we expect your urgent action. (emphasis ours)
Yours sincerely.”
The payments included salaries, allowances, and bonuses. The Court below held so in its judgment in pages 1421 – 1422 of the record after analysing Exhibits P2, P3, P4 and P39 coupled with the evidence of witness No. 2 for the appellant who stated under cross-examination that the appellant did not pay the staff salaries because it was aware that the same was being paid by the 1st respondent thus –
“The declaration sought is that the 1st Defendant breached the agreement by unilaterally paying the salaries and allowances without the consent and authority of the claimant. The facts reviewed above have shown that the decision to pay was not unilateral neither was it done without the consent or authority of the claimant. It therefore seems to be to be unconscionable and inequitable for the claimant to turn around and now claim for sums due to it when it knew and had consented to said payment by the 1st Defendant. Relief II for declaratory relief and relief VI (ii) for special damages in the sum of N389,085,923.29 are therefore regarded as lacking in merit and hereby dismissed. It therefore seems to be inconscienable and inequitable for the claimant to turn around and now claim for sums due to it when it knew and had consented to the said payment by the 1st defendant. Relief II for declaratory reliefs and relief vi(ii) for special damages in the sum of N389,085,923.29 are therefore regarded as lacking in merit and hereby dismissed.”
Likewise, the following finding in the judgment of the Court below in pages 1420 – 1421 –
“Having said this, the Court will on the 1st issue look at the reliefs sought by the claimant against the 1st Defendant. This relief (relief 1) is for a declaration that the Defendant breached its obligations under the agreement by failing to pay its invoices within the period stated in the contract. On this, PW2 testified that pursuant to the agreement between the Claimant and the 1st Defendant, the 1st Defendant was bound to initiate payment upon the 45th day of receiving the claimant’s invoices but it consistently failed to pay on time. He further testified that the 1st Defendant did not pay for services rendered by the Claimant and for this it is claiming N664,339,092.00. The Defendant on its part agreed that the requirement of the contract was that it should pay within 45 days of receipt of invoices but said that it did pay as agreed. DW1 in his evidence said that Exhibits P46 and P47 although invoices for January 2006 were not received until 10th March 2006 and that Exhibits P40 and P41 being the remittance advice showed that payment was authorized on 19th April 2006, a period less than the required 45 day period for payment. The Court agrees that indeed Exhibits P40 and P41 showed that payments were made within the period agreed upon and no other evidence was put before the Court by the Claimant to show the late payment alleged. With respect to Exhibits P31 and P32 tendered to show that some invoices were sent to the 1st Defendant and not paid, the Defendant stated that these invoices could not be paid because they were not signed by representatives of both parties as required by the contract. The Claimant’s 2nd witness also confirmed that invoices were required to be signed by both parties yet evidence shows that the column for both sides sign were filled and Signed by the Claimant’s representatives. The Court must therefore hold that the Claimant has not shown that the 1st Defendant breached its obligations since these invoices were not prepared in accordance with the terms of the contract.”
The said findings are supported by the evidence in question and have not been shown to be unreasonable or perverse and therefore cannot be disturbed vide Ebba v. Ogodo (1984) 1 SCNLR 372, Balogun v. Agboola (1974) 1 All NLR (pt.2) 66, Otukpo v. John (2012) 7 NWLR (pt.1299) 357 at 384 following Agbi v. Ogbeh (2006) 11 NWLR (pt.990) 65, Ojokolobo v. Alamu (1998) 9 NWLR (pt.565) 226, Sha v. Kwan (2000) 8 NWLR (pt.670) 685, Fagbenro v. Arobadi (2006) 7 NWLR (pt.978) 172. See also Purification Technique (Nig.) Ltd. and Ors. v. Jubril and Ors. (2012) 18 NWLR (pt.1331) 109 at 142 – 143 following Nneji v. Chukwu (1996) 10 NWLR (pt. 478) 265, Theophilus v. State (1996) 1 NWLR (pt. 423) 139, Nwosu v. Board of Customs and Excise (1988) 5 NWLR (pt.93) 225),Chinwendu v. Mbamali (1990) 3 – 4 S.C. 31.
I endorse the findings (supra) and desire to add by way of amplification that business letters such as Exhibit P4, for example, not replied to by the recipient are deemed to be acceptance by conduct of what is contained therein by the recipient; and that the default to reply such correspondence can be presumed that the recipient had no objection to the proposals contained therein vide Cooperative Development Bank Plc v. Arc. Mfon Ekanem and Ors. (supra) following the cases of Chemical Allied Products Plc v. Vital Investments Ltd. (2006) 6 NWLR (pt.976) 220 at 267, Brogden v. Metropolitan Railway Co. (1877) 2 App. Cases 666, Rophobone Facilities Ltd. v. Blank (1966) 1 WLR 1428. See also Gwani v. Ebule (1990) 5 NWLR (pt.149) 201 at 207.
Clause 18.8 of the contract, Exhibit P15 or P64, (supra) authorised the 1st respondent to inter alia to deduct the amount of costs incurred by the appellant which the appellant failed or neglected to pay for but which the 1st respondent made good from any amount due to the appellant or that may become due to the appellant under the contract and the appellant shall be so indebted to the 1st respondent and shall immediately pay the 1st respondent any sums outstanding after such deduction clause 18.9 thereof explains inter alia that any costs incurred shall be the amount of the claims, loss, damages, charges, disbursements, costs including amount paid to third parties, over head and expenses directly resulting from the matter in question. These payments were made by the 1st respondent under the exigency and expediency of the situation she found herself to either make the payments herself or face an industrial action that would cripple or paralyse her activities.
The payments in question having been covered by clause 18.8 of the contract, Exhibit P15 or P64, the 1st respondent kept to the plain words of the contract within the spirit of sanctity of contracts, nor did the Court below rewrite the contract for the parties when it held that the 1st respondent was entitled to make the said payments and deduct from what was due to the appellant under the contract. Likewise, the counter-claim based on the deducted sum of money under Section II Article 18.8 of the contract document (supra).
At the risk of repetition, the Court below held the leg of claim on the invoices not established in that the invoices relied upon were not co-signed by the 1st respondent’s representative to make them whole and payable. Indeed, the said invoices in Exhibits P31 and P32 in pages 301 – 316 of the record were not signed by a representative of the 1st respondent as required by Section II Article 18.6 of the contract document, Exhibit P15 or Exhibit P64.
The appellant reacted by relying on clause 18.6 of the contract (supra) to the effect that the 1st respondent should have returned the invoices, Exhibits 31 and 32, if she had objection to them that they were incorrectly prepared or submitted. There is, however, the tail-piece of clause 31-2 of Article 31 (supra) where the parties mutually agreed in writing that –
“No failure on the part of either party to enforce any of the terms and conditions of the CONTRACT shall constitute a waiver of such terms.”
The tail-piece (supra) should be read with Article 18.7 thereof. The 1st respondent is thus not precluded from relying on clause 18.6 of Exhibit P15 or Exhibit P64 in this case. The Court below was accordingly right in holding that this branch of the claim was not proved on the preponderance of evidence.
It was argued by the appellant that the 1st respondent was not a party to the agreement between the appellant and its staff on the terms of employment, so the 1st respondent cannot venture into or reap from the agreement on ground of privity of contract. True, a stranger to a contract cannot benefit from or use the contract. But in this case the appellant was deemed to be aware of and consented to the 1st respondent making the payments to its staff for wages and emoluments due or in arrears thus relieving the appellant from discharging its financial obligation to the staff on the just and fair consideration that a worker or labourer deserves his wages for labour offered or done which is a remarkable exception to the privity of contract concept.
The Court below found as a fact in its judgment in pages 1395 – 1429 of the record that the 2nd respondent did not interfere with the contractual relationship between the appellant and the 1st respondent in that the vehicles given to the 2nd respondent by the 1st respondent stated in Exhibit P17 for the former to repair were done under and protected by Section II of Article 5.7 of the contract, Exhibit P15 or P64. The appellant did not appeal against this specific crucial finding of fact which the Court below made in pages 1423 – 1424 of the record, in particular. Specific findings of fact not appealed against are deemed conceded by an appellant and remain binding and conclusive vide Biezan Exclusive Guest House Ltd. and Ors. v. Union Homes Savings and Loans Ltd. (2011) 7 NWLR (pt. 1246) 246 at 283 following Alakija v. Abdulai (1998) 6 NWLR (pt. 552) 1 at 24, Odiase v. Agho (1972) 1 All NLR (pt. 1) 170, Yesufu v. Kupper International N.V. (1996) 5 NWLR (pt. 446) 17, Nwabueze v. Okoye (1988) 4 NWLR (pt. 91) 664, Tsokwa (Nig.) Ltd. v. U.B.N. Ltd. (1996) 9 NWLR (pt. 471) at 129, Omoregbe v. Lawani (1980) 3 – 4 S.C. 108, Okereke v. Ejiofor (1996) 3 NWLR (pt. 434) 90, Amoshima v. State (2011) 14 NWLR (pt. 1268) 530 at 555 and 560.
Moreover, there was no ground of appeal and issue for determination derivable therefrom challenging the said specific finding of fact contrary to established practice that there must be an issue extracted from a ground of appeal or cluster of grounds of appeal before the complaint against a decision of a Court may be grounded vide Latunde and Ors. v. Lajinfin (supra), Emenike v. P.D.P. (2012) 12 NWLR (pt. 1310) 556 at 589, Wachukwu and Anor. v. Owunwanne and Anor. (2011) 14 NWLR (pt.1266) 1 at 30 – 31 following Nwana v. F.C.D.A. (2007) 11 NWLR (pt. 1044) 59, Ibator v. Barakuro (2007) 9 NWLR (pt.1040) 475, Chime v. Chime (2001) 3 NWLR (pt.701) 527, Momodu v. Momoh (1991) 1 NWLR (pt.169) page 68.
Ground 5 of the notice of appeal (supra) is tied to issue 5 (supra). It discusses the award of damages of 250,000 to the 2nd respondent against the appellant showing the appeal against the 2nd respondent is not academic or hypothetical or moot on this platform. The threshold issue that the appeal against the 2nd respondent is academic or hypothetical or moot is, accordingly, not well taken and is hereby rejected.
The 3rd respondent was oblivious to issue 4 tied to ground 3 of the notice of appeal contained in pages 1432 -1433 of the record on domiciliation agreement. Evidence both oral and documentary in pages 946, 1393, 941 – 942 of the record and Exhibits P8, P9, P10 to P14 in page 948 of the record as well as the findings of fact made by the Court below in pages 1423 – 1424 of the record were inter alia on the domiciliation agreement. There is also ground 5 of the notice of appeal challenging the costs awarded against the appellant which includes the N250,000 costs awarded in favour of the 3rd respondent against the appellant which is covered by issue 5 of the issues for determination in page 8 of the appellant’s brief of argument indicating the appeal affects the 3rd respondent and cannot be described as academic, hypothetical and moot.
In this case, the offer letter stated that there shall be domiciliation of all proceeds from the contract between the appellant and the 1st respondent with the 3rd respondent upon the appellant opening an account with the 3rd respondent for payment of the proceeds of the contract into the said account. The appellant complied with the conditions of the offer by opening the account for the specific purpose mentioned hereto upon which it was granted the loan of N80 million by the 3rd respondent to finance the contract.
The 1st respondent started crediting proceeds of the contract estimated at N55 million monthly into the special account opened by the appellant. The 3rd respondent also admitted in paragraph 7(a) to (e) of the amended statement of defence in pages 326 – 327 of the record (previously paragraph 6(c) of the statement of defence in pages 218 – 219 of the record) that there was the domiciliary account maintained with her by the appellant and what is admitted on the pleadings (save declaratory reliefs which was not the case here) require no further proof vide the cases (supra) cited by the 3rd respondent on the issue.
There was thus a contract between the appellant and the 3rd respondent which brought into existence the special or domiciliary account. See by analogy the apt English case ofBrodgen v. Metropolitan Railway Co. (1877) 2 A.C. 666 cited with approval in the Nigerian case of Awobokun v. Sketch Publishing etc. (1973) 3 U.I.L.R. (pt. IV) 502 at 510. The Court below therefore erred when it held that there was no domiciliation agreement between the appellant and the 3rd respondent on payments of contract sum into the account.
The domiciliary agreement between the appellant and the 3rd respondent as customer and banker was to credit all proceeds from the contract between the appellant and the 1st respondent into the account opened by the appellant with the 3rd respondent. Any agreement or consent (tacit or express), between the 1st respondent on the payment from the contract did not impinge on the contract between the appellant and the 3rd respondent. It follows that all proceeds flowing from the said contract in form of cheques/bank -drafts issued in the name of the account opened by the appellant (Doyin Motors Ltd.), by the appellant were to be credited into the said account maintained by the appellant with the 3rd respondent.
In the present case, only Exhibit P12, a bank draft, was issued in favour of the appellant as payee to be drawn on First Bank of Nigeria Plc, not on the 3rd respondent bank; while Exhibits P10, P11, P13 and P14 were individual letters written by First Bank of Nigeria plc addressed to the 3rd respondent, not the appellant, for the payment and utilization of the proceeds of bank cheques/bank drafts issued by First Bank of Nigeria Plc made payable to the 3rd respondent, not the appellant, with the specific instruction to credit the accounts of ultimate beneficiaries of the proceeds of the cheques/bank drafts on the order of the 1st respondent vide pages 250 and 279 of the record, in particular, as well as the admission to that effect by the PW1 for the appellant under cross-examination in page 1366 of the record and that of the PW2 for the appellant under cross-examination in page 1378 (last two lines at the bottom) of the record.
There was therefore no breach of contract by the 3rd respondent by processing the cheques/bank drafts not in the name of the appellant’s account as beneficiary or payee, nor did the appellant furnish stable evidence of collusion of the 3rd respondent with the 1st respondent to divert the monies in issue. The Court below accordingly reached the correct or right conclusion that the appellant did not prove this aspect of its claim vide Ukejianya v. Uchendu 13 W.A.C.A. 41 at 45, Lebile v. Registered Trustees of Cherubim and Seraphim (2003) 1 S.C. (pt. 1) 25, Taiwo and Ors. v. Sowemimo (1982) 5 S.C. 60 at 74 – 75, Ndayako and Ors. v. Dantoro and Ors. (2004) 13 NWLR (pt.689) 182, M. M. Alli Co. Ltd. v. Goni (2006) 10 NWLR (pt. 987) 88, N.B.C. Plc v. Olarewaju (2007) 5 NWLR (pt.1027) 255 at 198 to the effect that an appeal Court is concerned whether the decision arrived at by the trial Court is right not necessarily the reasons for the decision save if the reasons are intertwined with the decision.
The respondents endured a case that took over 4 years to litigate. There were multiple appearances in the case which was commenced in the year 2008 vide page 1 of the record and concluded on 26-11-2013 vide page 1429 of the record. There is no evidence in the record that the respondents misconducted themselves at the hearing of the action as to deprive them of costs videA.C.B. Ltd. v. Ajugwo (2012) 6 NWLR (pt. 1295) 97 at 132 – 133.
A successful party is automatically entitled to costs and denial or failure to award costs in such situation must be supported with reason(s) why the successful party was not awarded costs which follow event vide Adenaiya v. Governor-in-Council (1962) 1 All NLR 308, Mbanugo v. Nzefili (1998) 2 NWLR (pt. 537) 343 at 353, C.C.B. Nig. Plc v. Okpala (1997) 8 NWLR (pt.518) 623.
Costs are not awarded to penalize a party who is ordered to pay them, nor are costs awarded as windfall to a successful party. Costs are meant to indemnify the winning party for his out of pocket expenses representing the actual and true/fair expenses incurred by the litigation, therefore except it is clearly shown that the Court awarding the costs wrongly exercised its discretion by taking into consideration extraneous factors, showing arbitrary and mala fide exercise of discretion by the Court awarding the costs, before an appellate Court may disturb the award vide Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1, Kukoyi v. Odufale (1965) 1 ALL NLR 300, Olasope v. National Bank of Nigeria (1985) 3 NWLR (pt. 11) 147, Rewane v. Okotie-Eboh (1960) SCNLR 461 or (1960) 5 FSC 200, Ozigbu Engineering Co. Ltd. v. Philip Iwuamaidi (2009) NWLR (pt. 1166) 44 at 72 – 73 per the lead judgment prepared by his Lordship, Garba, J.C.A., following Ogunmokun v. Military Administrators, Osun State (1991) 3 NWLR (pt. 594) 261, N.B.I.C. v. Alfijir (Nig) (1993) 4 NWLR (pt.287) 346, Akinbobola v. Plisson Fisko (Nig) Ltd. (1991) 1 NWLR (pt. 167) 270, Biode v. Pharmaceutical Adsell Ltd. (1986) 5 NWLR (pt.46) 1070, Obayagbona v. Obazee (1972) 5 SC 247, Wurno v. U.A.C. Ltd. (1956) SCNLR 99.
The costs of N500,000 to the 1st respondent who bore the brunt of the litigation cannot be said to be excessive, punitive or oppressive, having regard to the circumstances of the case and the weak value of money at all material times; so it would not be right to contend that the award of the N500,000 was a bonus or based on benevolence or sympathy showing the exercise of discretion by the Court below to award the costs was judicious and judicial or fair and just vide Wurno v. U.A.C. Ltd. (1966) SCNLR 99, Universal Bank of Nig. Ltd. v. Nwaokolo (1995) 6 NWLR (pt.400) 127, Rewane v. Okotie-Eboh (1960) SCNLR 461, Nwanbani v. Golden Guinea Breweries Plc (1995) 6 NWLR (pt.400) 184, Melwani v. Chanhira Corporation (1995) 6 NWLR (pt.402) 438 cited with approval in A.C.B. Ltd. v. Ajugwo (supra) at 133. Likewise, the award of N250,000 costs to the 2nd and 3rd respondents each or respectively.
The award of costs is at the discretion of the Court which must be exercised fairly or judiciously and judicially as costs always follow event and a successful party is as such entitled to costs unless there are proven special reasons for depriving him of costs which must be shown by the Court depriving him of the costs vide Obayagbona v. Obazee (1972) 5 SC 246, Amira (Nig) Ltd. v. Mal (Nig) Ltd. (2001) 17 NWLR (pt. 742) 464, Idam v. Mene (2009) 17 NWLR (pt. 1196) 74.
There were therefore materials for the Court below to base its decision on the issue of costs, which discretion was in my considered view, properly and fairly exercised by the Court below as the costs awarded were not manifestly high or gargantuan or oppressive.
Accordingly, I find myself unable to disturb the award of costs vide N.N.P.C. v. Clifco (Ng) Ltd. (2011) 10 NWLR (pt. 1255) 209 at 234-235 following Anyaegbunam v. Osaka (1993) 5 NWLR (pt. 294) 449, Obayagbona v. Obazee (1972) 5 SC 247 and University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143.
In the final analysis, I find no merit in the appeal and hereby dismiss it and affirm the decision of the Court below (Jose, J.) with N300,000 costs against the appellant in favour of the respondents jointly and severally.
MOHAMMED LAWAL GARBA, J.C.A.:Â My learned brother Joseph Shagbaor Ikyegh, JCA has comprehensively considered the issues submitted by the Appellant in the lead judgment, a draft of which I read before now, and I agree with the conclusion that the appeal is devoid of merit.
For the views expressed and reasons adumbrated in the lead judgment which are the same with mine. I too dismiss the appeal for lacking in merit and abide by the order on costs made therein.
YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, JOSEPH SHAGBAOR IKYEGH, JCA gave me the opportunity of reading in advance the judgment just delivered. I agree with the reasoning and conclusion arrived in the lead judgment. I have nothing more to add.
I too dismiss the appeal and abide by the consequential orders made in the lead judgment.
AppearancesMr. E. A. Oyebanji with him, Mr. O. AdekoyaFor Appellant(s)
Mr. M.O. Liadi with him, T. O. Mudashiru, Esq. for the 1st Respondent.
Mr. S.A. Imoseni for the 2nd Respondent.
Mr. M. Mordi with him, Mr. A. Aluko for the 3rd Respondent.For Respondent(s)
