LOTUS CAPITAL LTD v. NATIONWIDE UNITY TRANSPORT LTD & ORS
(2022)LCN/17032(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Saturday, September 03, 2022
CA/A/505/2018
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
LOTUS CAPITAL LTD APPELANT(S)
And
1. NATIONWIDE UNITY TRANSPORT LTD 2. ABG ENERGY GENERATION LIMITED 3. ENGR. MOHAMMED BAWA RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHO IS A NECESSARY PARTY
Now, a necessary party is one who should be bound by the result and the question to be settled in an action. Therefore, there must be a question in the action which cannot be effectually and completely settled unless he is a party. Thus, the only parties that must be present in a matter are necessary parties.
For a person to be a necessary party, it must be shown that the subject matter or cause of action between the existing parties is such that cannot be properly settled unless he is made a party. In Okoli v. Ejiakor (supra) per Helen Moronkeji Ogunwumiju, JCA who said ‘this Court was enjoined to ask the following questions:
1. Is the suit likely to be defeated by the non-joinder of the party?
2. Is it not possible for the Court to determine the live issues in the litigation without joining the party?
3. Will the party seeking to be joined suffer injustice if he is not joined? PER OLABISI, J.C.A.
WHETHER OR NOT AN IMPROPERLY CONSTITUTED ACTION CANDENOTE UPON A COURT OR TRIBUNAL’S JURISDICTION TO HEAR AND DETERMINE THE ACTION
It is trite law that an improperly constituted action cannot donate or bestow upon a Court or Tribunal jurisdiction to hear and determine the action. Any action instituted by a party must have a competent Plaintiff or Claimant and a Defendant with capacity to defend the action because if proper or indispensable parties are not before the Court, the Court seised of the action will lack jurisdiction to adjudicate on the matter. See:
1. MR. ABDUL&ANIVU ADENIRAN & ANOR VS HRH OBA ABDULGANIYU AJIBOLA IBRAHIM & 7 ORS (2019) 8 NWLR 98 AT 118 G – H TO 119 A – B per PETER-ODILI, JSC and;
2. HON. JAMES A. FALEKE V INEC & ANOR (2016) 18 NWLR (PART 1543) 61 AT 135D-G per KEKERE-EKUN, JSC who said:-
“On the issue of non-joinder of the All Progressives Congress as a party before the Tribunal, it is apposite to consider the factors that make a person a necessary party to an action. The position of the law was eruditely stated in the well-known case of Green v. Green (1987) 3 NWLR (Pt. 61) 481 where this Court held that it is necessary to make a person a party to an action so that he should be bound by the result. It also held that a necessary party is one who is not only interested in the subject matter of the proceedings but also one in whose absence, the proceedings could not be fairly dealt with. See also: Azubuike v. P.D.P. (2014) 7 NWLR (Pt.1406) 292 AT 316, E – F and 313, D – E. The question of proper parties has been held to affect the jurisdiction of the Court as it goes to the foundation of the suit in limine, in which case the Court would lack jurisdiction to hear the suit. See: G. & T. Investment Ltd. v. Witt & Bush Ltd.(2011)8 NWLR (Pt. 1250) 500 AT 538, F- H.” PER OLABISI, J.C.A.
THE IMPLICATION OF WHERE A DEFENDANT RESTS HIS CASE ON THE PLAINTIFF’S CASE
Where the defendant rests his case on the plaintiff’s case the consequence is that the unchallenged evidence is deemed to be true and correct: Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118 (SC); NEP A v. Olagunju (2005) 3 NWLR (Pt. 602) 632 (CA). What follows next is the question: whether the unrebutted evidence has proved the allegations in respect of which the evidence was proffered? PER OLABISI, J.C.A.
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capita! Territory, Abuja, delivered on 30th day of November, 2017, wherein the Court struck out the case of the appellant on the ground that the suit was not properly constituted due to non-joinder of necessary parties, see pages 198-217 of the record.
The appellant herein via a Statement of Claim filed on the 27th April, 2016, claimed against the respondents jointly and severally as follows:
1. A declaration that the Plaintiff is entitled to the payment of the sum of N44,340,000.00 (Forty-Four Million Three Hundred and Forty Thousand Naira) only by the Defendants jointly and severally being the total cash value as endorsed on the following cheques:
NAME OF ISSUING BANK SERIAL NUMBER DATE OF MATURITY VALUE ON CHEQUE IN NAIRA
Unity Bank Plc 00000166 25th August, 2014 N5,445,000.00k
Unity Bank Plc 00000168 25th August 2014 N5,445,000.00k
Unity Bank Plc 00000169 25th August 2014 N5,445,000.00k
Unity Bank Plc 00000170 25th August 2014 N5,445,000.00k
Unity Bank Plc 00000184 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000185 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000187 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000188 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000189 4th September 2014 N5,445,000.00k
Issued in favour of the plaintiff by the 1st Defendant on behalf of the Defendants, being the total amount due and payable to the plaintiff for the financing of the supply of 165,000 litres of AGO – Diesel valued at N27,225,000 by Messrs Conundrum Nigeria Limited and the financing of the supply of 231,100 litres of AGO Diesel valued at N38,115,000 by Messrs. Carlypeters Oil and Gas Limited to the 2nd Defendant; which cheques having been presented were returned unpaid and remained unpaid and unredeemed till date.
2. An order of this Honourable Court commanding the Defendants either jointly and/or severally to forthwith pay to the plaintiff the sum of N44,340,000.00 (Forty-Four Million Three Hundred and Forty Thousand Naira) only being the total cash value as endorsed on Unity Bank Plc Cheque Nos. 00000166, 00000168; 00000169; 000000170, dated 25th August, 2014 and Unity Bank Plc Cheque Nos. 00000184; 00000185; 00000187, 00000189 dated 4th September, 2014 issued in favour of the plaintiff by the 1st Defendant on behalf of the Defendants, being of the supply of 165,000 litres of AGO – Diesel valued at N27,225,000.00 by Messrs. Conundrum Nigeria Limited and the financing of the supply of 231 litres of AGO – Diesel valued at N38,115,000 by Mesrrs. Carlypeter Oil and Gas Limited to the 2nd Defendant; which cheques having been presented were returned unpaid and remained unpaid and unredeemed till date.
3. Interest at the commercial rate of 25% per annum on the sum of N21,780,000.00 (Twenty-One Million, Seven Hundred and Eighty Thousand Naira) from 25th August 2014 to the date of the delivery of judgment.
4. Interest at the commercial rate of 25% per annum on the sum of N27,225,000.00 (Twenty-Seven Million, Two Hundred and Twenty-Five Thousand Naira) from 4th September, 2014 to the date of the delivery of judgment.
5. An Order of this Honourable Court commanding the defendants either jointly or severally to pay 10% Percent) post-judgment interest on the judgment being the actual indebtedness plus interest per reliefs 3 and 4 until satisfaction of the judgment thereof.
6. And for such further order(s) this Honourable Court deems fit to make in the circumstances.
All the Defendants were served with the Statement of Claim and other processes including hearing notices. The Defendants chose not to file any defence but rather, they rested their case on that of the Plaintiff.
In proof of his case, the Plaintiff called a lone witness who testified as PW1 and adopted his witness statement.
Thereafter, the counsel for the Defendants reminded the Court of their earlier position that they do not intend to file any statement of defence or call evidence in this suit. Thereafter, the matter was adjourned for adoption of final written addresses of parties.
In a considered judgment delivered by the trial Court on the 30th November, 2017, the learned trial Judge at page 217 of the record of appeal, held as follows:
“Hence, therefore, based on the facts and evidence adduced before me, I hold the considered view that the plaintiff being not privy to the contract lacks the capacity or locus to institute this action and I so hold. Further, I hold the view that the necessary parties to be bound by the invocation of this Court’s judicial powers are not before the Court and I so hold.
Thus. The first issue for determination in this suit is hereby resolved in favour of the Defendants. Hence, the plaintiff is not entitled to its claims and it is hereby refused and the case struck out.
That is the judgment of this Court.”
Dissatisfied with the decision of the lower Court, the appellant appealed to this Court vide a Three Grounds Notice of Appeal dated 13th February, 2018 but filed on the 27th February, 2018. The grounds of appeal without their particulars are as follows:
“Ground One:
The learned trial judge erred in law when he found as follows: “Yes I agree with the learned counsel for the plaintiff to the extent that by exhibits 3, 3(a) – 3(h), 8(a), 8(b) and 9(b) including exhibits 2(a) and 2(b), it would be perceived that the Defendants, in particular the obligation of paying the contract sums domiciled in favour of the Plaintiff as per exhibits 2(a) and 2(b) create such obligation. However, despite exhibits 3, 3(a) – 3(h), 8, 8(a), 9, and 9(a) together with exhibits 2a and 2b does not make the Plaintiff a party to the contract in the instant case, no matter the benefit the plaintiff is deriving therefrom.
In the instant case, what the Plaintiff ought to have done is to sue Conundrum (sic) (Nigeria) Ltd and Carlypeters Gas Oil Limited and then make the 1st and 2nd Defendants parties in the suit. In the instant case, from the facts and evidence adduced in this case, Conundrum (sic) (Nigeria) Ltd and Carlypeters Oil and Gas Limited are necessary parties in this suit but unfortunately, they were not made parties in this suit”.
Ground Two:
The learned trial Judge erred in law when he found as follows:
“In the instant case what the Plaintiff ought to have done is to sue Conundrum (sic) (Nigeria) Ltd and Carlypeters Oil and Gas Limited and then make them 1st and 2nd Defendants parties in the suit. In the instant case, from the facts and evidence adduced in this case, Conundrum (sic) (Nigeria) Ltd and Carlypeters Oil and Gas Limited are necessary parties in this suit but unfortunately they were not made parties in this suit.”
Ground Three:
The learned trial Judge erred in law when he struck out the suit for failure of the Plaintiff to join Carlypeter Oil and Gas Limited and Conundrum (Nigeria) Limited.”
From the above grounds, counsel for the appellant, Abdul Mohammed Esq., distilled two issues for the determination of this appeal in the Appellant’s Brief of Argument filed on the 3rd day of October, 2018, but deemed properly filed and served on the 26th January, 2022. The two issues are:
1. Whether in the light of the reliefs sought before the Court, Messrs. Conundrum Nigeria Limited and Carlypeters Oil & Gas Limited are necessary parties to the suit. (Distilled from Grounds 2 and 3 of the Notice of Appeal).
2. Whether, having regard to the provisions of Sections 3 and 73 of the Bill of Exchange Act, the appellant can sue the respondents on the value of the cheques issued by the respondent without proving any underlying contract. (Distilled from Grounds 1 of the Notice of Appeal).
In response, counsel for the 1st to 3rd respondents, Otoja J. Ede Esq., distilled a lone issue in Respondents’ Brief of Argument dated 21st day of February, 2022 and filed 23rd day of February, 2022. The lone issue is:
Whether the appellant who is not a party to the contracts (Local Purchase Orders) between the 2nd Respondent and two other companies – Conoundrum Nig. Ltd., and Carlypeters Oil & Gas Ltd, could institute and maintain an action in respect of the same; and if the answer is in the negative, whether the trial Court was right when it held that the appellant’s action was incompetent and accordingly dismissed the same.
Appellant’s Reply Brief was filed on the 22nd March, 2022 but deemed properly filed and served on the 6th June, 2022.
The appeal was heard on 6th day of June, 2022, as counsel to the parties adopted their respective briefs of arguments.
The appeal will be determined on the two issues formulated by counsel to the appellant.
Issue One:
Whether in the light of the reliefs sought before the Court, Messrs. Conundrum Nigeria Limited and Carlypeters Oil & Gas Limited are necessary parties to the suit.
Learned Counsel for the appellant while arguing this issue stated that in order to resolve this issue that the question that springs itself up for determination is: whether the contention that the failure to sue Messrs. Connundrum Nigeria Limited and Carlypeters Oil & Gas Limited in this suit renders the suit incompetent or one liable to be struck out? On this, counsel submitted that the answer is in the negative. This being so, because the rules of joinder are well settled in our jurisprudence. That such is determinable by the reliefs sought by the parties. Counsel argued that from the facts of this case and the reliefs sought at the trial Court, the Court will find that there is nothing in this case to suggest the case cannot be determined in the absence of Messrs. Conoundrum Nigeria Limited and Carlypeters Oil and Gas Limited or that any reliefs was sought against Messrs. Conoundrum Nigeria Limited and Carlypeters Oil & Gas Limited. He relied on case of GREEN V. GREEN (1987) 3 NWLR (PT. 61) 480.
On whether the presence of Messrs Conoundrum Nigeria Limited and Carlypeters Oil and Gas Limited, is necessary to determine this case, counsel argued that there is evidence before the lower Court that the respondents did in fact acknowledge their indebtedness to the appellant. He referred the Court to page 88 of the record, that the said document was admitted as Exhibit 8A. That by the evidence before the Court any doubt as to the indebtedness of the respondents to the appellant has been cleared. That by the provision of Section 22, 23 and 26 of the Bill of Exchange Act, the appellant is entitled to sue the respondents for the value of the cheques admitted in evidence as Exhibits 7, 7(a) – 7(h). He stated the trite position of the law that once a person issues cheques, then he is liable for the value stated therein. That there was no contest by the respondents that the cheques were issued of value. Neither did the respondents contested the delivery of the diesel from Messrs. Conoundrum (Nigeria) Ltd and Carlypeters Gas & Oil Limited. That by the rules of pleadings, where there is an allegation against a party and the party fails to controvert same, he is deemed to have admitted same. He relied on:
1.WAZIRI V. ALI (2009) 4 NWLR (PT. 1130) 178 AT 216 TO 217 per GARBA, JCA.
2. A.O. BORISHADE V. NATIONAL BANK OF NIGERIA LIMITED (2007) 1 NWLR (PT. 1015) 217 CA AT 246, PARAS. E-G.
Counsel maintained that in the face of the admission by the respondents, that Messrs. Conoundrum (Nigeria) Ltd and Carlypeters Gas & Oil Limited are not relevant parties to this case.
Learned counsel for the appellant further stated that by virtue of Section 38 of the Bill of Exchange Act, the Holder of a Bill has the rights and powers to sue in his own name and may enforce payment against all parties liable to the bill. While relying on Sections 47(2), 55 and 57 of Bill of Exchange Act, counsel stated that it is an error of law for the trial Court to find as follows:
“Yes I agree with the learned counsel for the plaintiff to the extent that by exhibits 3, 3(a) – 3(h), 8(a), 8(b) and 9(b) including exhibits 2(a) and 2(b), it would be perceived that the Defendants, in particular, the obligation of paying the contract sums domiciled in favour of the Plaintiff as per exhibits 2(a) and 2(b) create such obligation. However, despite exhibits 3, 3(a) – 3(h), 8, 8(a), 9, and 9(a) together with exhibits 2a and 2b does not make the Plaintiff a party to the contract in the instant case, no matter the benefit the plaintiff is deriving therefrom.”
See pages 214 to 217 of the record of appeal.
That it is settled law that where the words of a statute are certain, plain and unambiguous and do not attract any other context, the Court must give them their plain and natural meaning. He cited:
1. OKOTIE EBOH V. MANAGER & ORS. (2004) 12 SCNJ 139;
2. BABATUNDE V. PAN ATLANTIC SHIPPING & TRANS AGENCIES LTD & ORS, (2007) 4 SCNJ 140;
3. BASINCO MOTORS LTD V. WOERMANN LINE & ANOR. (2009) 13 NWLR (PT. 1157) 149 AT 198 -190 H-A.
Counsel for the appellant therefore, submitted that the learned trial Court erred in law when it held that Messrs. Conoundrum (Nigeria) Ltd and Carlypeters Gas & Oil Limited were necessary parties in this case. That the Court could have decided the case on the basis of the parties before it. He urged the Court to resolve the issue in favour of the appellant.
While arguing his sole issue, counsel for the 1st to 3rd respondents argued that the onus was on the appellant to prove that it had locus standi or the capacity to sue the respondents on the two contracts arising from the Local Purchase Orders (LPOs) between the 2nd respondent and two other companies – Conundrum Nig. Ltd and Carlypeters Oil & Gas Ltd. Counsel argued that to maintain locus standi, that proper and necessary parties must be before the Court, and in addition that the appellant must have shown in its Statement of Claim that it had sufficient legal interest in the subject matter of the action. He relied on the cases of:
1. UBA PLC V. BTL INDUSTRIES LTD (2004) 18 NWLR (PT. 904) 180;
2. LADEJOBI V. OGUNTAYO (2004) 18 NWLR (PT. 904) 149.
Moreso, that it is very vital for the appellant to state the capacity in which it instituted the action, reason being that it is fundamental that a person who instituted an action must be competent to do so. He cited EBOH V. OGBU (1994) 5 NWLR (PT. 203 AT 715.
Counsel submitted that jurisdiction of a Court is determined by the claim before it. He cited:
1. KOTOYE V. SARAKI (1994) 7 NWLR (PT. 357) 415;
2. YALAJU-AMAYE V. A.R.L.C. LTD (1990) 4 NWLR (PT. 145) 426 AT PAGE 441.
Counsel for the respondents argued that the appellant instituted the action against the respondents on 22nd April, 2016, for inter alia, payment of money allegedly being owed under contracts arising from two different Local Purchase Orders (LPOs) for supply of diesel. That the parties are the 2nd respondent herein (as the awarding company), the Conundrum Nig. Ltd and Carlypeters Oil and Gas Ltd respectively (as beneficiary). That the appellant who is not a party to any of the contracts was allegedly approached and engaged by the beneficiary companies to fund the execution of the two contracts, i.e. supply of diesel to the 2nd respondent. That none of the said beneficiary companies was joined as a party in the suit, rather the appellant joined the 1st respondent against whom there was no reasonable cause of action. That the 1st respondent is an entity of its own, distinct and separate from the 2nd Respondent and also was not in any way connected to, nor involved in the alleged contracts between the 2nd respondent and the appellant. That the respondents never at any time engaged the services of the appellant for supply of diesel or doing of any other acts or assignments either in connection to the alleged contract or at all for which the appellant could sue for recovery of any debts under the same. He submitted that the respondents who were not privy to any arrangement, contract or agreement between the appellant and the beneficiary companies for funding or supplies of diesels to the 2nd respondent in furtherance of the execution of the alleged contract between 2nd respondent and the appellant, cannot be sued on the same. He cited the case of:
1. AMIDA & OR5. V. OSHOBOJA (1984) 15 531;
2. AKPAN & ANOR. V. UTIN & ORS., (1996) 7 NWLR (PT. 463) 634, especially AT PAGE 673.
Counsel stated the trite position of the law that a contract affects only the parties to it and cannot be enforced by or against a person who is not a party thereto even if the contract is made for his benefit and purports to give him the right to sue to make him liable upon it. See –
1. UBA PLC v. BTL INDUSTRIES LTD (2004) 18 NWLR (PT. 904) 180;
2. B.M. LTD V. WOERMANN-LINE (2009) 13 NWLR (PT. 1157) 149, RATIO 5 AT PAGE 158.
He maintained that contract cannot confer enforceable rights or impose obligations arising under it on any person, except parties to it. He referred the Court to:
1. IDUFUEKO V. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT. 1420) 96 RATIO 5;
2. DUNLOP PNEUMATIC TYRES CO. LTD V. SELRIDGE LTD (1915) A.C. 847 AT PAGE 853;
3. TWEDDLE V. ATKINSON 30 L.J.Q.B.
Learned counsel for the 1st to 3rd respondents submitted that the appellant being not privy to the contracts between the 2nd respondent and the beneficiary companies (Conundrum Nig. Ltd and Carlypeters Oil & Gas Ltd) cannot sue to enforce same. That the two beneficiary companies are the proper persons to sue or to be sued under the contracts but who have slept over their rights; they are therefore, bound by the judgment of the trial Court delivered on the 30th day of November, 2017.
He emphasized that having regard to the position of the applicable law, that the appellant’s action was not only incompetent but also improperly constituted. That the law is trite that where a suit is incompetent because of lack of locus standi on the part of a party to bring the action, there can be no jurisdiction on the part of the trial Court to entertain the action. He relied on:
1. MOMOH V. OLOTU (1970) 1 ALL NLR 117;
2. OREDOYIN V. AROWOLO (1989) 4 NWLR (PT. 114) 172.
On the whole, he maintained that the trial Court was therefore, right in its decision as contained in the judgment delivered on 30th day of November, 2017.
On the points of law, counsel for the appellant in his reply briefly stated that the basis of the claim of the appellant are that those bank cheque issued by the respondents is for the satisfaction of an admitted debt. He referred the Court to pages 82 to 88 of the record. That they are regulated by the Bill of Exchange Act, That by Sections 3 and 73 of the Bill of Exchange Act, proper parties being the drawer and the drawee of the bank cheques that were dishonoured are before the Court. That the argument that it is Merrs. Coundrum Nig. Limited and Carlypeters Oil & Gas Limited that are the proper parties that ought to be sued should bite the dust. Counsel countered the submission of the respondents at paragraphs 4.7, 4.11, and 4.12 and referred the Court to pages 76 and 77 of the record failed to see the clear connection between the appellant, Messrs. Conudrum Nig. Limited and Carlypeters Oil & Gas Limited and the respondents. He urged the Court to discountenance all the submissions of the 1st to 3rd respondents especially relating to the appellant not being party to the contracts.
RESOLUTION OF ISSUES
The two issues formulated by the Appellant boiled down to whether the following companies namely:
1. CONUDRUM NIG. LIMITED and
2. MESSRS CARLYPETERS OIL AND GAS LIMITED are indispensable to the just determination of this suit as held by the lower Court.
Now, a necessary party is one who should be bound by the result and the question to be settled in an action. Therefore, there must be a question in the action which cannot be effectually and completely settled unless he is a party. Thus, the only parties that must be present in a matter are necessary parties.
For a person to be a necessary party, it must be shown that the subject matter or cause of action between the existing parties is such that cannot be properly settled unless he is made a party. In Okoli v. Ejiakor (supra) per Helen Moronkeji Ogunwumiju, JCA who said ‘this Court was enjoined to ask the following questions:
1. Is the suit likely to be defeated by the non-joinder of the party?
2. Is it not possible for the Court to determine the live issues in the litigation without joining the party?
3. Will the party seeking to be joined suffer injustice if he is not joined?
It is trite law that an improperly constituted action cannot donate or bestow upon a Court or Tribunal jurisdiction to hear and determine the action. Any action instituted by a party must have a competent Plaintiff or Claimant and a Defendant with capacity to defend the action because if proper or indispensable parties are not before the Court, the Court seised of the action will lack jurisdiction to adjudicate on the matter. See:
1. MR. ABDUL&ANIVU ADENIRAN & ANOR VS HRH OBA ABDULGANIYU AJIBOLA IBRAHIM & 7 ORS (2019) 8 NWLR 98 AT 118 G – H TO 119 A – B per PETER-ODILI, JSC and;
2. HON. JAMES A. FALEKE V INEC & ANOR (2016) 18 NWLR (PART 1543) 61 AT 135D-G per KEKERE-EKUN, JSC who said:-
“On the issue of non-joinder of the All Progressives Congress as a party before the Tribunal, it is apposite to consider the factors that make a person a necessary party to an action. The position of the law was eruditely stated in the well-known case of Green v. Green (1987) 3 NWLR (Pt. 61) 481 where this Court held that it is necessary to make a person a party to an action so that he should be bound by the result. It also held that a necessary party is one who is not only interested in the subject matter of the proceedings but also one in whose absence, the proceedings could not be fairly dealt with. See also: Azubuike v. P.D.P. (2014) 7 NWLR (Pt.1406) 292 AT 316, E – F and 313, D – E. The question of proper parties has been held to affect the jurisdiction of the Court as it goes to the foundation of the suit in limine, in which case the Court would lack jurisdiction to hear the suit. See: G. & T. Investment Ltd. v. Witt & Bush Ltd.(2011)8 NWLR (Pt. 1250) 500 AT 538, F- H.”
However, where the facts pleaded or relied upon by parties to an action are such that the matter can conveniently and effectually be adjudicated upon without the joinder of a third party or persons who may be interested in the subject matter of an action, the non-joinder or failure to join such other persons as parties will not vitiate the action and the jurisdiction of the Court seised of the matter cannot be eroded or be affected particularly where there is competent Plaintiff/Claimant and Defendant who in law is capable of defending the action and who is actively interested in the matter which makes it justifiable for the invocation of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended against the Defendant or Defendants who caused the injury or wrong complained of, leading to accrual of action to the Plaintiff.
The Court will in such circumstance proceed to hear and determine the suit or action on the basis of the parties in dispute before the trial Court or Tribunal. This point was eloquently made and established in numerous cases. Suffice to refer to:-
1. AYORINDE & ORS V ONI & ANOR (2000) 3 NWLR (PART 649) 348 AT 368 per KARIBI-WHYTE, JSC who had this to say:-
“The situation in the instant appeal is different from the case relied upon in the submission by learned counsel to the Appellants, where a necessary party to an action, for one reason or the other was not joined, the non-joinder will not render the judgment a nullity. It is a correct proposition of law that where an action is properly constituted, with a plaintiff with legal capacity to bring the action, a defendant with capacity to defend, and a claim with cause of action against the defendants, and the action has satisfied all preconditions for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity. See Oladeinde & Anor v. Oduwole (1962) WNLR 41.
Where the nature of the evidence before the Court is such that the case of the parties before it can be determined in the absence of those not joined, it can proceed to do so. It is only in those cases where it will not be right and the Court cannot properly determine the issues before it in the absence of the parties whose participation in the proceeding is essential for the proper, effectual and complete determination of the issues before it, will it be necessary to insist on the joinder of such necessary parties.”
2. CHIEF MAXI & ANOR VS CHIEF VICTOR UMEH & ANOR (2016) 1 SCM 129 AT 144 E – I per OKORO, JSC.
A close perusal of the reliefs sought shows clearly that the Defendants on record now the Respondents have clearly assumed responsibility to pay the debts owed by CONUDRUM NIG. LIMITED and CARLYPETERS OIL AND GAS LTD to the Appellant in case of default or failure to pay the monies borrowed from the Appellant to fund the orders to supply 231,000 liters of diesel oil and 165,000 litres of diesel oil respectively by the said companies to the 2nd Respondent to this appeal.
The appellant took all necessary and cautionary measures before agreeing to finance the aforesaid local purchase orders issued in favour of MESSRS CONUDRUM NIGERIA LTD and MESSRS CARLYPETERS OIL AND GAS LTD. Appellant wrote formal letters to the 2nd respondent to confirm if it truly issued the Local Purchase Orders which the 2nd respondent confirmed to the appellant. The appellant was approached in writing by the respondents and sought to guarantee the payment of all the Ago Diesel Oil contained in the Local Purchase Orders to the appellant. To that effect the respondents caused one of the members of their Group Companies, the 1st respondent to issue in favour of the appellant post-dated cheques covering the total cost of the diesel oil which the appellant duly funded and supplies were made to the respondents (all and singular). The Statement of Claim of the appellant (pages 53 – 59 of the record) paragraphs 13 – 32 thereof explained in great and graphic details the liability of the respondents to pay the monies owed by the said companies. The respondents accepted the liability and guaranteed the payments of debt owed by the said companies. The paragraphs read:-
“13. The Plaintiff avers that as a pre-condition for the financing, it requested for a post-dated cheque covering the value of the LPO from the 2nd Defendant. The 2nd and 3rd Defendants also caused to be issued post-dated cheques of the 1st Defendant covering the value of the LPO i.e. the sum of N38,115,000.00 (thirty-eight million, one hundred and fifteen thousand Naira) in favour of the Plaintiff.
14. Following the understanding of the parties, the Plaintiff financed the transactions and the 2nd Defendant took delivery of the 165,000 litres of AGO Diesel as contained in the Store Receipt Voucher dated 14th July 2015. The 2nd Defendant also confirmed delivery of 231,000 litres of AGO Diesel and also issued its Store Receipt Voucher, Invoice, Waybill/Delivery dated 24th July 2015 respectively.
The copies of the Store Receipt Voucher dated 14th July 2014 and 24th July 2014, Invoice dated 24th July 2014, Waybill/Delivery dated 24th July 2014 are hereby pleaded and same shall be relied upon at the trial of this suit.
15. The Plaintiff avers that on the due dates, it lodged the respective cheques of the 1st Defendant into Guaranty Trust Bank, its Bankers, at Bayo Kuku Ikoyi Branch through its Account No. 0005364115 for liquidation. However, the respective cheques presented to its Bankers were returned unpaid.
16. The Unity Bank Pic post-dated cheques due and returned unpaid disclosing the Defendants’ indebtedness to the Plaintiff for financing the supply of the AGO Diesel to the 2nd Defendant are as itemized herein below:
Name of Issuing Bank Serial number Maturity Date Value on Cheque in Naira
Unity Bank Plc 00000166 25 August 2014 N5,445,000.00k
Unity Bank Plc 00000168 25 August 2014 N5,445,000.00k
Unity Bank Plc 00000169 25 August 2014 N5,445,000.00k
Unity Bank Plc 00000170 25 August 2014 N5,445,000.00k
Unity Bank Plc 00000184 4 September 2014 N5,445,000.00k
Unity Bank Plc 00000185 4 September 2014 N5,445,000.00k
Unity Bank Plc 00000187 4 September 2014 N5,445,000.00k
Unity Bank Plc 00000188 4 September 2014 N5,445,000.00k
Unity Bank Plc 00000189. 4 September 2014 N5,445,000.00k
The photocopies of the Unity Bank Pic post-dated cheques described herein and the endorsements of the clearing banks are hereby pleaded and shall be relied upon at the trial of this cause in proof of the averment contained herein.
17. The Plaintiff notified the 2nd and 3rd Defendants about the dishonoured cheques and in response, the 3rd Defendant acting on behalf of the 1st and 2nd Defendants tendered apologies for their inability to honour their obligations, further to which the Defendants pleaded for more time to honour their obligation. The Plaintiff assented to the Plaintiff’s appeal with the reasonable expectation that the Defendants will fulfill their commitment to the Plaintiff.
The Plaintiff pleads and shall rely on the entire content of the Defendants’ letters of apology dated 3rd September 2014 and 17th September 2014 respectively.
18. The Plaintiff avers that when it became apparent to it that the Defendants were not forthcoming on their undertaking to fulfill their obligations to the Plaintiff, the Plaintiff issued a letter of demand dated 22nd September 2014, requesting the Defendants to advise the Plaintiff on the date of presentation of the cheques previously dishonoured.
The letter of demand dated 22nd September 2014 is hereby pleaded and shall be relied upon in proof of the averment contained herein.
19. The Plaintiff avers that despite several overtures vide telephone conversations and business correspondences to the 3rd Defendant (Managing Director of the 1st and 2nd Defendants) to effect the payment due to the Plaintiff, the Defendants have failed to discharge their obligation.
20. Consequently, the Plaintiff also caused a letter of final demand dated 16th December 2014 to be issued to the Defendants titled “Re: Final Notice of Demand for N49,840,000”. The letter of Final demand dated 16th December 2014 is hereby pleaded and shall be relied upon at the trial of this cause.
21. The Plaintiff states that all that the Defendants have done each time the Plaintiff made a demand for the repayment of the outstanding funds due to the Plaintiff was to admit their indebtedness, and plead with the Plaintiff for more time to make the payments to the Plaintiff.
22. The Defendants have persistently made unfulfilled promises that the Plaintiff’s account will be credited with the outstanding funds on or before 31st January 2015, yet to no avail. By the 3rd Defendant’s admission of its indebtedness in an e-mail to the Plaintiff dated 1st January 2015, he stated as follows:
“I am by this e-mail once again thanking you for your patience and understanding thus far.
The reason that your email was not replied earlier was because we have been trying to raise some payment as requested by you for today BUT unfortunately with the holidays, activities have been at a halt so we are unable to do much.
We are by this letter kindly requesting that you graciously grant our request to clear the outstanding before 31st January 2015 otherwise we suffer whatever actions you decide to take …
The Plaintiff pleads and shall rely on the entire content of the respective e-mail correspondences between the Plaintiffs Investment and Research Unit and the 3rd Defendant dated 22nd December 2014, 1st January 2014 and 30th January 2014 of the several demands for the repayment of the Defendants’ indebtedness and the various commitments by the 3rd Defendant to fulfill their obligation to the Plaintiff.
23. Further e-mail exchanges between the Plaintiffs Credit Officer, Gregory Ogbebor and the 3rd Defendant on the outstanding payment for A6O- Diesel supply to the 2nd Defendant dated 3rd February 2015, 4th February 2015 and 5th February 2015, which the Defendants have defaulted in paying the debt due to the Plaintiff are hereby pleaded and same shall be relied upon at the trial of this suit.
24. Following the final demand notice and several entreaties from the Plaintiff, the Defendants made the payment of N5,000,000.00 (Five Million Naira) only in March 2015, out of the total sum of N49,340,000.00 (Forty-Nine Million, Three Hundred and Forty Thousand Naira only), thereby leaving an outstanding balance of N44,340,000.00 (Forty Four Million, Three Hundred and Forty Thousand Naira only) yet to be paid.
25. Since then up till the filing of this suit, the Defendants have refused and or neglected to fulfill their obligation. The refusal of the Defendants to pay in accordance with the cheques issued by them on their due dates has resulted in hardship to the Plaintiff’s business operations.
26. The Plaintiff is a fund manager and has lost businesses that it would have otherwise channeled the outstanding sum into had the Defendants paid the debt at the due date, the Plaintiff would have ploughed it back and financed other transactions at the commercial rate of 25% per annum in accordance with the approved rate issued by the Central Bank of Nigeria.
27. The Plaintiff pleads and shall rely on the document containing the lending rates approved by the Central Bank of Nigeria between September 2014 and December 2015, the date of filing of this suit.
28. As at the time of filing this suit, the Defendants have still not fulfilled their obligations and the principal sum of N44,340,000.00 (Forty-Four Million Three Hundred and Forty Thousand Naira) remains due and unpaid.
29. The Plaintiff avers that based on mercantile custom and practice per the Central Bank of Nigeria approved lending rates afore-stated, it is entitled to pre-judgment interest at the commercial rate of 25% on the outstanding amount calculated from the date of default.
30. The Plaintiff will, in accordance with its business principles and philosophy pay the interest element to charity.
31. The Plaintiff pleads that it will be inequitable to let off the Defendants who have taken benefit of the transaction for the supply of the AGO Diesel financed by the Plaintiff without bearing responsibility or fulfilling their outstanding obligations to pay the plaintiff.
32. Whereof the Plaintiff’s Claim is as follows;
1. A declaration that the Plaintiff is entitled to the payment of the sum of N44,340,000.00 (Forty-Four Million Three Hundred and Forty Thousand Naira) only by the Defendants Jointly and severally being the total cash value as endorsed on the following cheques:
NAME OF ISSUING BANK SERIAL NUMBER DATE OF MATURITY VALUE ON CHEQUE IN NAIRA
Unity Bank Plc 00000166 25th August, 2014 N5,445,000.OOk
Unity Bank Plc 00000168 25th August 2014 N5,445,000.00k
Unity Bank Plc 00000169 25th August 2014 N5,445,000.00k
Unity Bank Plc 00000170 25th August 2014 N5,445,000.00k
Unity Bank Plc 00000184 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000185 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000187 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000188 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000189 4th September 2014 N5,445,000.00k
Issued in favour of the plaintiff by the 1st Defendant on behalf of the Defendants, being the total amount due and payable to the plaintiff for the financing of the supply of 165,000 litres of AGO – Diesel valued at N27,225,000 by Messrs Conundrum Nigeria Limited and the financing of the supply of 231,100 litres of AGO Diesel valued at N38,115,000 by Messrs. Carlypeters Oil and Gas Limited to the 2nd Defendant; which cheques having been presented were returned unpaid and remained unpaid and unredeemed till date.
2. An order of this Honourable Court commanding the Defendants either jointly and/or severally to forthwith pay to the plaintiff the sum of N44,340,000.00 (Forty-Four Million Three Hundred and Forty Thousand Naira) only being the total cash value as endorsed on Unity Bank Plc Cheque Nos. 00000166, 00000168; 00000169; 000000170, dated 25th August, 2014 and Unity Bank Plc Cheque Nos. 00000184; 00000185; 00000187, 00000189 dated 4th September, 2014 issued in favour of the plaintiff by the 1st Defendant on behalf of the Defendants, being of the supply of 165,000 litres of AGO – Diesel valued at N27,225,000.00 by Messrs. Conundrum Nigeria Limited and the financing of the supply of 231 litres of AGO – Diesel valued at N38,115,000 by Mesrrs. Carlypeter Oil and Gas Limited to the 2nd Defendant; which cheques having been presented were returned unpaid and remained unpaid and unredeemed till date.
3. Interest at the commercial rate of 257> per annum on the sum of N21,780,000.00 (Twenty-One Million, Seven Hundred and Eighty Thousand Naira) from 25th August 2014 to the date of the delivery of judgment.
4. Interest at the commercial rate of 25% per annum on the sum of N27,225,000.00 (Twenty-Seven Million, Two Hundred and Twenty-Five Thousand Naira) from 4th September, 2014 to the date of the delivery of judgment.
5. An Order of this Honourable Court commanding the defendants either jointly or severally to pay 10% Percent) post-judgment interest on the judgment being the actual indebtedness plus interest per reliefs 3 and 4 until satisfaction of the judgment thereof.
AND FOR SUCH FURTHER ORDER(S) this Honourable Court deems fit to make in the circumstances.”
Notwithstanding the highly incriminating and involved pleadings of the Appellant showing the undertaking and assumed responsibility of the respondents to pay the amount of monies totaling N44,340,000.00 (Forty-four Million, Three Hundred and Forty Thousand Naira) for which the 1st respondent for and on behalf of the 2nd and 3rd respondents issued post-dated cheques which were paid in and returned unpaid by 1st respondent’s Bank, the 1st, 2nd and 3rd respondents did not file Statement of Defence nor did they frontload any documents as defence to the action.
The respondents also in a show of bravado did not call any evidence at the trial but chose to rest their case and defence on that of the appellant who duly gave evidence in support of her pleadings and reliefs sought and both oral and documentary evidence was given by the Appellant all of which the respondents all and singular did not controvert, challenged or denied.
On pages 201 – 202 of the record the learned trial Judge found thus:-
“On the 4th May, 2016, all the Defendants were served with the statement of claim and other processes including hearing notices. The Defendants did not file any defence but rather rested their case on that of the Plaintiff.
On the 8th December, 2016, the Plaintiff opened its case for hearing by calling only one witness, Gregory Ogbebor who testified as PW1, PW1 adopted his witness statement on oath deposed to on 22nd April, 2016. Plaintiff tendered in evidence a number of documents through PW1 that were admitted in evidence as exhibits 1-10 respectively.
At the close of evidence by the Plaintiff, the Defendants Counsel informed the Court as earlier stated that they do not intend to file any statement of defence or call evidence in this suit.”
The respondents are deemed to have admitted all the claims and/or reliefs sought against them by the appellant.
They have ditched and done themselves in by their failure to challenge or deny all the paragraphs of the Statement of Claim. The law adjudged them to have whole heartedly admitted the claims and reliefs founded against them (1st, 2rd and 3rd respondents who were Defendants at the lower Court). See;
1. Section 20 of the Evidence Act 2011.
2. MR SUNDAY ADECBITE TAIWO VS SERAH ADEGBORO & ANOR (2011) 11 NWLR (PART 1259) 562 AT 583 E – H TO 584 A – D per RHODES-VIVOUR, JSC who said:-
“Nowhere in the statement of defence or in evidence on oath is it stated when notice was pasted on the wall of the house to be auctioned or when television and radio announcements were made. Exhibit 1 the notice of auction is undated. To my mind, the fact that notice was pasted on the house on 16/6/89 and sale carried out on 17/6/89 has been established to my satisfaction. Both lower Courts were correct in that regard. The notice of only one day given by the auctioneer before the auction sale of the property on 17/6/89 was contrary to the requirement in Section 19 of the Auction Law. The only reasonable conclusion is that the sale of Late Michael Adegboro’s property was not valid. There was no valid sale of the deceased property on the 17th of June 1989.
Finally, on this point, in the Court of Appeal, learned counsel for the Bank and the auctioneer, Mr. Lambo Akanbi (as he then was) agreed that the notice of only one day given by the auctioneer before the auction sale of the property on 17/6/89 was contrary to the requirements of Section 19 of the Auctioneers Law.
Section 75 of the Evidence Act states that:
No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have been admitted by their pleadings.
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
See Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) P.1. Judicial admissions are conclusive. That is to say, where a party agrees to a fact in issue, it is no longer necessary to prove that fact.
In effect, after an admission, no further dispute on the fact admitted should be entertained by the Court. This is the strongest proof of the fact in issue.”
Facts not challenged or disputed are taken as established and therefore need no further proof. In the instant case, the Respondents did not put up any defence at all but rested their case on that of the Appellant notwithstanding that they led no evidence.
The settled position of the law is that they (Respondents) have wholesale admitted the credit and the debit side of the Appellant’s case and evidence. That is the decision of the apex Court in:
1. AKANBI V ALAO (1989) 3 NWLR (PART 108) 118 AT 153 viz:-
Where the defendant has elected not to call evidence he must be taken as admitting the facts of the case as stated by the Plaintiff”
2. ANTHONY OJIGHO V NIGERIAN BAR ASSOCIATION & ORS (2019) 9 NWLR (PART 1678) 399 AT 411 H TO 412 A – D per BASE, JSC who said:-
“The appellant took a gamble, which I think might not have worked favourably in his favour. This is because the PW1’s evidence was overwhelmingly sufficient and convincing. There is further corroboration by the fact that the appellant had admitted the wrong-doing and actually paid back the sum of N3 Million and issued a post-dated cheque for the balance of N7 Million to the PW1 (the petitioner) which cheque was countermanded and dishonoured on the instruction of the appellant. Amidst this ocean of evidence, the appellant still decided to take a plunge into self-delusion by resting his case on that of the respondents by refusal to call evidence in support of his defence.
It is my humble view that being fully conscious of the fact of his conduct in the case, the appellant took a big risk by resting his case on the respondents.
This has an implication. According to the Executor of the Estate of Gen. Sani Abacha v. Eke-Spiff(supra), the appellant was asserting that:
a. The respondents have not made out any case at trial to warrant his response.
b. He admitted the facts of the case as presented by the respondents; or
c. He has a complete defense in answer to the plaintiffs (the respondents).”
The appellant’s self-deceit smartness is less than a half. Having conducted himself in a rather unprofessional manner, and having also admitted the misconduct by repaying part of the outstanding sums, a prudent legal practitioner ought to do more by disabusing the minds of an observer as to his ‘saintly’ disposition in the transaction to negative the likely outcome or consequence of lacking in professional decency and probity; he has chosen to lace his bed with stones, pebbles and crumbs of iron and broken bottles; he surely deserves to sleep on the bed alone. This will send appropriate signals to potential violators of Rules of Professional Ethics, 2007 and other applicable provisions of the Legal Practitioners Act 2004.”
At pages 414S-H TO 415A-B My Noble Lord EKO, JSC said-
In exercise of his liberty, the appellant, upon the close of the prosecution’s case against him elected not to call rebuttal evidence. Rather, he rested his defence on the prosecution’s case. In my view, the appellant elected not to rebut the evidence adduced against him. In other words, he adopts the evidence. I agree, as found by the Legal Practitioners Disciplinary Committee (LPDC) at page 73 of the record that the appellant – by opting or electing not to enter a defence he has, in law, accepted all the facts and evidence led by the complainant.
Where the defendant rests his case on the plaintiff’s case the consequence is that the unchallenged evidence is deemed to be true and correct: Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118 (SC); NEP A v. Olagunju (2005) 3 NWLR (Pt. 602) 632 (CA). What follows next is the question: whether the unrebutted evidence has proved the allegations in respect of which the evidence was proffered?
I have no cause to disturb the findings of fact made by the LPOC on the available evidence in the printed record. The actual purchase price being N30,000,000.00 and the appellant having fraudulently induced the PW1 to pay him N40,000,000.00; the latter was entitled to the refund of the N10,000,000.00 the difference. The appellant, by conduct, admitted that he paid the PW1 N3,000,000.00 cash in the bid not only to refund the difference but also in acknowledgement of PW.1’s right to the refund of the N10,000,000.00. In further acknowledgement of the PW1 ‘s right to the entirety of the N10,000,000.00 the appellant issued in favour of the PW1 a postdated cheque for N7,000,000.00 which he subsequently countermanded for no good reason, except the intent to defraud the PW1. This is a clear evidence of the intent of the appellant to, unethically, deprive and/or withhold the said sum of N7,000,000.00 from the PW1, the complainant. This professionally is an infamous conduct. The facts established against the appellant by the LPOC are unassailable. I have no cause to intervene and/or disturb the findings of fact and the direction of the LPOC.”
The respondents are hereby adjudged as owing the amount claimed from them by the appellant. They are bound to pay for the diesel oil supplied to them by the two aforesaid companies. They fully agreed to pay for the diesel on behalf of the companies not joined.
I am not unmindful of the defence of the respondents that there was no privity of contract between them and the Appellant in that the appellant cannot benefit under the contract of supplies of diesel entered into between the respondents on one hand and Messrs CONOUDRUM NIGERIA LTD and CARLYPETERS OIL AND GAS LIMITED on the Order.
This no doubt is a porous and outlandish defence that did not and will not inure for the Respondents’ benefit. The case postulated on the pleadings has clearly taken the case out of the realm and principle of privity of contract.
It was the respondents especially the 2nd respondent that volunteered to be the person that would refund the monies spent or used to purchase Local Purchase Orders to supply diesel given to the aforesaid companies by the appellant. The respondents put it in writing. All the documents evidencing the contract and the responsibilities of the respondents to pay the debts owed by the respondents pursuant to which they issue cheques in Appellant’s favours were all tendered at the lower Court as Exhibits 1, 2(a), 2(b), 3(a) – (c), 4, 5, 6(a), 9(a) and 10 respectively without objection(s) from the respondents. See pages 11 – 102 of the record, particularly pages 88 – 93 of the record all showing without doubt that the respondents owed the appellant as claimed.
The appellant’s witness was not cross-examined on any of the documents tendered as exhibits and on the oral evidence. The learned Counsel to the respondents asked questions that bear no relevance to the facts in issues. See page 191 of the record where the cross-examination of Appellant reads:-
“I am not resident in Abuja. I live at number 12 Onatoru Wokan Street, Yaba Lagos. My passport is affixed to my witness statement. I was in Abuja the time of filing this suit. I signed my statement on oath at High Court Maitama before it was filed. I gave them my passport photograph but I don’t know why it is not on my witness statement on oath. The Carly peters Oil and Cas Conoudrum are our clients and we do grant them facilities. Conoudrum Nigeria Limited and Carly Peters Oil and Cas are aware that we are in Court. I affirm that they are aware of this suit and in respect of the transaction between the Defendants.”
Issues 1 and 2 distilled for determination by the appellant are hereby resolved in appellant’s favour.
Consequently, the appellant’s appeal has merit. The appellant’s appeal is hereby allowed.
The judgment of the lower Court delivered on 30th November, 2017 is HEREBY SET ASIDE.
In its stead judgment is hereby given in appellant’s favour as follows:-
1. A DECLARATION THAT THE PLAINTIFF IS ENTITLED to the payment of the sum of N44,340,000.00 (Forty-Four Million Three Hundred and Forty Thousand Naira) only by the Defendants jointly and severally being the total cash value as endorsed on the following cheques:
NAME OF ISSUING BANK SERIAL NUMBER DATE OF MATURITY VALUE ON CHEQUE IN NAIRA
Unity Bank Plc 00000166 25th August, 2014 N5,445,000.00k
Unity Bank Plc 00000168 25th August 2014 N5,445,000.00k
Unity Bank Plc 00000169 25th August 2014 N5,445,000.00k
Unity Bank Plc 00000170 25th August 2014 N5,445,000.00k
Unity Bank Plc 00000184 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000185 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000187 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000188 4th September 2014 N5,445,000.00k
Unity Bank Plc 00000189 4th September 2014 N5,445,000.00k
Issued in favour of the plaintiff by the 1st Defendant on behalf of the Defendants, being the total amount due and payable to the plaintiff for the financing of the supply of 165,000 litres of AGO – Diesel valued at N27,225,000 by Messrs Conundrum Nigeria Limited and the financing of the supply of 231,100 litres of AGO Diesel valued at N38,115,000 by Messrs. Carlypeters Oil and Gas Limited to the 2nd Defendant; which cheques having been presented were returned unpaid and remained unpaid and unredeemed till date.
2. AN ORDER OF THIS HONOURABLE COURT IS HEREBY MADE commanding the Defendants either jointly and/or severally to forthwith pay to the plaintiff the sum of N44,340,000.00 (Forty-Four Million Three Hundred and Forty Thousand Naira) only being the total cash value as endorsed on Unity Bank Plc Cheque Nos. 00000166, 00000168; 00000169; 000000170, dated 25th August, 2014 and Unity Bank Plc Cheque Nos. 00000184; 00000185; 00000187, 00000189 dated 4th September, 2014 issued in favour of the plaintiff by the 1st Defendant on behalf of the Defendants, being of the supply of 165,000 litres of AGO – Diesel valued at N27,225,000.00 by Messrs. Conundrum Nigeria Limited and the financing of the supply of 231 litres of AGO – Diesel valued at N38,115,000 by Mesrrs. Carlypeter Oil and Gas Limited to the 2nd Defendant; which cheques having been presented were returned unpaid and remained unpaid and unredeemed till date.
3. AN ORDER OF THIS HONOURABLE COURT commanding the defendants either jointly or severally to pay 10% Percent) post-judgment interest on the judgment being the actual indebtedness plus interest per reliefs above until satisfaction of the judgment thereof.”
The respondents (jointly and severally) shall pay costs assessed at N250,000 (Two Hundred and Fifty Thousand Naira) to the Appellant.
HAMMA AKAWU BARKA, J.C.A.: My lord Peter Olabisi Ige, JCA, kindly made available to me a copy of the Judgment just read in draft.
I agree with the reasoning and conclusions reached and thereby allow the appeal, while abiding by all orders made including that on costs.
ISAH BATURE GAFAI, J.C.A.: I was privy to the reasonings and conclusion comprehensively expressed in the lead judgment delivered by my learned brother Peter Olabisi Ige, JCA. I adopt those resonings as mine; by which I too resolve the appellant’s two issues for determination in its favour and in consequence join my learned brother in allowing this appeal and setting aside the judgment of the lower Court.
I abide also by the Order on cost as made in the lead judgment.
Appearances:
F. D. AMEDU, ESQ. with him, HAJARA SHEHU, ESQ. For Appellant(s)
ONOJA J. EDE, ESQ. For Respondent(s)
