MOTECH INVESTMENT LTD & ANOR v. ODEMADIGHI (2020)

MOTECH INVESTMENT LTD & ANOR v. ODEMADIGHI

(2020)LCN/13985(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/A/759/2015

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Tinuade Akomolafe-Wilson Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. MOTECH INVESTMENT LTD 2. CHRISTIAN ADEDA APPELANT(S)

And

MORO B. ODEMADIGHI RESPONDENT(S)

RATIO

WHETHER OR NOT APPEALS ARE USUALLY AGAINST THE RATIO DECIDENDI IN THE JUDGEMENTS ON APPEAL

In the case of MILITARY ADMINISTRATOR, EKITI STATE VS. ALADEYELU (2007) ALL FWLR (PT. 369) 1195 AT 1220; PARAS. D – E (SC), it was held per Onnoghen, JSC that
“Appeals are usually against the ratio decidendi in the judgments on appeal. An appeal must be directed at the reasons for the judgment of the Court appealed against and not outside it. In the instant case, there was no decision of the trial Court relating to the installation of the appellant, the Court of Appeal was therefore in error to have made orders on such because it lacked the jurisdiction to do so.”
In the case of CHUKWUOGOR VS. CHUKWUOGOR (2007) ALL FWLR (PT. 349) 1154 AT 1169 PARAS. G – H (CA), it was held that:
“As the issue was not raised for the consideration of the Court below, it made no finding on it. Therefore the appellants cannot now raise the issue. An appeal is against the decision of the Court below and a challenge to the validity of that decision. More importantly, an appeal is always against the ratio of the trial Court’s decision and can never be at large. See SARAKI V. KOTOYE (1992) 3 NSCC 331 AT 355; OBA V. EGBERONGBE (1998) 8 NWLR (PT. 615) 485 AT 489.” PER IDRIS, J.C.A.

WHETHER OR NOT APPEALS ATRE TO BE DETERMINED FROM THE GROUNDS OF APPEAL RAISED AGAINST THE JUDGEMENT BEING APPEALED

In the Supreme Court case of GALADIMA VS. STATE (2018) 13 NWLR (PT. 1638) PAGE 357 AT 373 PARA G, it was held per Ariwoola JSC that:
“It is trite that by the rules of practice and procedure, in particular, of the appellate Courts, appeals are to be determined on the issues distilled from the competent grounds of appeal raised against the judgment being appealed. Therefore, any ground of appeal from which no issue has been formulated is deemed to have been abandoned and is liable to be discountenanced and struck out by the Court. Indeed, any such ground is lifeless and may not need a specific order to have it struck out yet it should still be struck out.”
See also the cases of MAOBISON INTER LINK ASS LTD VS. UTC (NIG) PLC (2013) 9 NWLR (PT. 1359) PAGE 197; BISIRIYU AKINLAGUN & ORS VS. TAIWO OSHOBOJA & ANOR (2006) 12 NWLR (PT. 993) PAGE 60. PER IDRIS, J.C.A.

THE DOCTRINE OF PRIVITY OF CONTRACT

The Doctrine of privity of contract simply states that only parties to a contract can sue, be sued and be held liable in the event of a breach. In the Supreme Court case of UNITED BANK FOR AFRICA & ANOR VS. ALHAJI BABANGIDA JARGABA (2007) LPELR – 3399(SC), it was held per Muhammad, JSC that:-
“The doctrine of privity of contract is all about sanctity of contract between the parties to it. The doctrine will not apply to a non-party to the contract who may have, unwittingly, been dragged into the contract with a view to making him a shield or scapegoat against the non-performance by one of the parties.”
Also, in the case of OGUNDARE & ANOR VS. OGUNLOWO & ORS (1997) LPELR – 2326(SC) PAGE 14 PARAS E – F, it was held per Onu, JSC that:
“In law, there is privity of contract. It is always between the contracting parties who must stand or fall, benefit or lose from the provisions of their contract. Their contract cannot bind third parties nor can third parties take or accept liabilities under it, nor benefit there-under.” PER IDRIS, J.C.A.

THE ESSENTIALS OF A VALID CONTRACT

In the case of BILANTE INTERNATIONAL LTD VS. NIGERIA DEPOSIT INSURANCE CORPORATION (2011) LPELR SC 177/1996, the essentials of a valid contract was stated per Fabiyi, JSC:
“To constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance. An offer is the expression by a party of readiness to contract on the terms specified by him which if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer. See: Okugbule & Anor. v. Oyagbola & Ors (1990) 4 NWLR (Pt. 147) 723. It should be reiterated that in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them. Then if there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same. See: Afolabi v. Polymera Industries (1967) 1 All NLR 144. The acceptance must correspond with the term of the offer. If it purports to qualify the offer, it may amount to a counter-offer and not an acceptance. It may amount to rejection of the offer. It also destroys that offer so that cannot subsequently be accepted.”
It was further held in the same Supreme Court case that:
“It is trite that before any contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the contract must be at ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself for enforceability.” ODUTOLA V PAPERSACK (NIG) LTD (2006) 18 NWLR (PART 1012) PAGE 470. PER IDRIS, J.C.A.

WHETHER OR NOT ACTION FOR MONEY HAD AND RECEIVED WOULD IN LAW LIE FOR MONEY PAID BY MISTAKE

In the case of C.N. EKWUOGOR INVESTMENT NIG.LTD VS. ZENITH BANK PLC & 2 ORS(2018) LPELR – 46602 (CA) it was held that:
“an action for money had and received would in law lie for money paid by mistake, or for money paid upon a consideration which happens to fail, or for money got through imposition, express or implied, or for money obtained by extortion, oppression or undue advantage taken of the claimant’s position. The action is based on quasi contract imposing the obligation on the defendant a promise to pay, either actual or implied by law, as if the defendant had incurred a debt and is therefore bound by the ties of natural justice to refund founded on the equity of the claimant’s case, as if it were upon a contract; showing the obligation to repay is imposed by the Court simply under the circumstances of the case and on what the Court considers is just and reasonable having regard to the relationship of the parties. It is in that wise a debt or obligation constituted by the act of the law, apart from any consent or intention of the parties or privity of contract; and if I may add it is based on conscience rooted in the adage that one should not be allowed to reap where he did not sow vide Oduwobi v. Barclays Bank DCO (1962) 1 SCNLR 226 or (1962) 1 All NLR 143 at 146 – 147 per Unsworth, FJ following the English cases of Sinclair v. Brougham (1914) A.C. 398, Moses v. Macferlan 2 Burr. 1005, Brook’s Wharf & Bull Wharf Ltd. v. Goodman Bros. (1937) 1 K.B. 534.
See also ADESINA AND ORS VS. KOLA AND ORS (1993) 6 NWLR (PT. 298) 182 AT 201 – 202. PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Amended Writ of Summons dated the 18th of July, 2013 before the High Court of the Federal Capital Territory sitting at Abuja, the Respondent as Plaintiff instituted the action giving rise to this appeal wherein he claimed the following reliefs against the Appellants:
(a) AN ORDER compelling the Defendants jointly and/or severally to pay the Plaintiff the sum of N13,505,000 .00 (Thirteen Million, Five Hundred and Five Thousand Naira) special damages and/or restitution of Defendant’s admitted outstanding debt balance of N18,505,000 (Eighteen Million, Five Hundred and Five Thousand Naira) owed the Plaintiff upon the Defendant’s breach of contract.
(b) AN ORDER compelling the Defendants jointly and/or severally to pay the Plaintiff the sum of N10,000,000 (Ten Million Naira only) being exemplary and aggravated damages for the Defendants’ equitable fraud(s) on the Plaintiff.
(c) AN ORDER compelling the Defendants jointly and/or severally to pay the Plaintiff the sum of N10,000,000 (Ten Million Naira only) as general damages under the circumstances of the suit.

(d) AN ORDER compelling the Defendants jointly and/or severally to pay the Plaintiff the sum of N1,500,000 (One Million, Five Hundred Thousand Naira only) being the indebtedness of the Plaintiff to his counsel to attempt to settle this suit out of Court.
(e) AN ORDER compelling the Defendants jointly and/or severally to pay the Plaintiff interest on (1), (2), (3) and (4) above at 10% per annum from the date of judgment until the resulting judgment sum is fully and finally paid.
(f) AND FOR ANY OTHER ORDER(S) this Honourable Court may deem fit to grant in the circumstances of this suit.

Before delving into the appeal, here is a summary of the facts giving rise to this appeal.

The Respondent instituted an action under the Undefended list, stating that he and the 2nd Appellant have been good friends and he considered him a honest and trustworthy man. The Respondent averred that the 2nd Appellant approached him with an oral offer to jointly finance and execute a contract awarded to the 1st Appellant for the construction/development of a Multi-purpose Hall Complex at Gwarimpa Estate, Federal Capital Territory, Abuja and on behalf of the Amalgamated

Union of Public Corporation, Civil service, Technological and Recreational Services Employees (AUPCTRE) and the 2nd Appellant gave the Respondent a letter dated 27th of May, 2011 to authenticate the claim of the awarded contract. It was then agreed that upon the completion of the said project by the 1st Appellant, the Respondent would be given a determined number of shops/offices to manage and also given a share of the profits made by the Appellants over the period of fifteen years.

Based on this agreement, the Respondent gave initial sums totalling N10,000,000.00 (Ten Million Naira) to the 2nd Appellant as part of his contribution towards the 1st Appellant’s project. The Respondent then gave another sum of N8,505,000.00 (Eight Million Five hundred and five thousand Naira) bringing his total contribution to N18,505,000 .00 (Eighteen Million Five hundred and five thousand Naira).

The Respondent further averred that sometime in February 2011, the 2nd Appellant gave him a draft copy of an Agreement purported to be between the 1st Appellant and the Respondent and to his utmost shock, from the proposed draft agreement, it was portrayed that the

Respondent was a creditor, helping in financing the said project and was only entitled to the repayment of the N5,000,000.00 (Five Million Naira) Only and 30% interest and not N18,505,000.00 (Eighteen Million Five Hundred and Five Thousand Naira). The Respondent further stated that the 2nd Appellant denied any oral agreement as regards the management of the shops upon the completion of the project by the 1st Appellant. The Respondent made several oral demands for the refund of his money but the Appellants neglected and refused to repay.

The Respondent, through his counsel caused a letter of demand for the repayment of the sum of N14,237,000.00 to be served on the Appellants. The 2nd Appellant then arranged a meeting where he offered to pay the sum of N5,000,000.00 which the Respondent accepted and he indicated in writing that it was part payment of the N14,237,000.00 debt. The 2nd Appellant then signed an undertaken, promising to pay the outstanding balance sum which he failed to honour.

Frustrated, the Respondent instituted an action. When the Appellants showed their intention to defend the suit, the trial Court ordered that pleadings should be

filed. At the close of pleadings, the Respondent called two witnesses to prove his case including a subpoenaed witness. The Appellants called two witnesses. The Appellants also filed a motion, seeking to strike out the name of the 1st Appellant from the suit on the grounds that it was not privy to the contract between the 2nd Appellant and the Respondent.

Delivering judgment on the 28th of May, 2015, the trial Court held that the 1st Appellant was a necessary party to the suit and judgment was given in favour of the Respondent. The Court further ordered that the Appellants should jointly and severally pay the sum of N9,237,000 to the Respondent and the sum of N2,000,000 for general damages.

Dissatisfied, the 1st and 2nd Appellants filed a Notice of Appeal dated the 9th of June, 2015, comprising of six grounds of appeal.
Parties to the appeal filed and exchanged their respective briefs of argument.

In the Appellants’ brief of argument as settled by their counsel, Soji Toki Esq., which was filed out of time but deemed to be properly filed by an order of Court made on the 16th of March, 2017, the following issues for determination were

distilled from the grounds of appeal:-
(i) Was the 1st Appellant liable for the sums claimed in the action? (Ground iv)
(ii) Did the Respondent establish a valid legal and subsisting contract with the Appellants and the attendant breach by the latter and was judgment wrongfully entered against the Appellants without a consideration of this issue. (Ground i & ii).
(iii) Was the Respondent entitled to his principal relief, not having founded his claim on quasi-contract? (Ground iii).
(iv) Was the Court right to have awarded both special and general damages for breach of contract?(Ground v)

On issue one, the Appellants counsel has argued that the doctrine of privity of contract as a matter of contract law must be put into consideration. It was further stated that the agreement to invest money in exchange for shops/offices between the Respondent and the 2nd Appellant did not involve the 1st Appellant at all. References were made to the pleadings and evidence of the 2nd Appellant at the trial Court to show that the payment obligations were his alone to bear and not that of the 1st Appellant because he acted in his personal capacity and

not on behalf of the 1st Appellant. The Appellants counsel has argued that the 1st Appellant not being privy to the agreement between the parties was not a necessary party and could not be affected by the decision.

On issue two, the Appellants’ counsel has argued that for an agreement to be complete, effectual and binding, all the essential terms must be agreed. It was submitted that the “oral agreement” between the Respondent and the 2nd Appellant in the instant case amounts to a void contract because the number of shops to be allotted to the Respondent and the mode of profit sharing were undecided. Thus, in the absence of any agreement as to the value of the consideration or any mechanism for resolving this in the agreement, it had left the contract too vague and uncertain. Reliance was place on FARAH FILM SERVICE LTD VS. AMERICAN OVERSEAS PETROLEUM & ANOR (1974) 9 CCHCJ 1409.

It was further argued that there must have been in existence a valid and subsisting agreement, legally recognised before a breach can be said to have occurred. Thus, all the monetary reliefs claimed by the Respondent founded on a breach of contract or

agreement namely Reliefs 1 and 3 on the Amended Writ of summons cannot be sustained. It was submitted that a miscarriage of justice has been occasioned by the failure of the Court to grant the said reliefs in the absence of any contract. It was further submitted that it was the Respondent who was in breach by unilaterally ceasing to make financial contributions to towards the project.

On issue three, the Appellants’ counsel has argued that the Respondent’s cause of Action could only have been founded in Quasi-contract so as to have his money returned. It was further stated that the Respondent however did not make any quasi-contractual claim and even if he did, the time for returning the money obtained from him had not crystallized since the project had not crystallized. It was submitted that it was the agreement of parties that the money will be paid back when the shops were available.

On issue four, the Appellants’ counsel has argued that both General and Special damages cannot be claimed as special damages to cover the loss sustained by the claimant which maybe fairly and reasonably considered as a result of the breach. Thus, the

award of General damages amounted to double compensation which the lower Court ought not to have granted. This Court was urged to set aside the award.

The Respondent filed his brief of argument as settled by his counsel Wilfred Eneye Esq., dated the 12th of April, 2017, the following issues for determination were distilled from the grounds of appeal:-
(i) Whether the Honourable trial Court considered and determined the issue of whether or not there was a binding, valid and subsisting contract between the parties (Grounds i,ii and iii of the Notice of appeal)
(ii) Whether the Honourable trial Court was right in joining the 1st Appellant as a party to the suit and co-liable with the 2nd Appellant to the judgment sums thereof. (Ground iv of the Notice of appeal).
(iii) Whether the Honourable Trial Court erred in law in awarding general damages against the Appellant. (Ground v of the Notice of Appeal).

On issue one, the Respondent’s counsel has argued that it is elementary law that an oral contract is a form of contract and equally as binding. It was stated that the 2nd Appellant had admitted to collecting monies from the Respondent in

furtherance of the said oral contract and Exhibit A is a binding undertaking from the 2nd Appellant to the Respondent. Thus, the Respondent has argued that the Ground 1 of the Notice of Appeal is a lie and that lie is the foundation of Grounds i, ii and iii of the said Notice of Appeal. Also, the Respondent counsel has argued that the Appellants were approbating and reprobating on the issue of the contract with the Respondent.

Furthermore, it has been argued by the Respondent’s counsel that relying on the doctrine of estoppel, since the Appellants have started taking steps at repayment under the said oral contract, they cannot be heard saying that the oral contract was void. Also, on the issue of quasi-contract raised by the Appellant, the Respondent counsel has argued that it is nowhere contained in the judgment being appealed against; it is hypothetical, academic and speculative. Thus, submission of counsel cannot take the place of evidence.

It was also argued by Respondent counsel that the Appellant had attempted to whittle down the Respondent’s investments from that of a partner entitled to sharing profits and shops with the

Defendants to a mere money lender entitled to profits on monies loaned. Also, the Respondent counsel has argued that the Appellants are trying to criminally entrap the Respondent by saying that the Respondent would be given interest on monies borrowed when he is not a money lender.

Also, the Respondent’s counsel argued that the issue of the non-determination of the number of shops raised by the Appellants was not pleaded and not contained in the judgment appealed against.

Also, the Respondent’s counsel has argued that the Appellants have approbated through their motion on notice that the 1st Appellant ought not to be joined in the suit as the contract was between the 2nd Appellant and the Respondent and then reprobates, arguing in their final written address, stating that the 1st Appellant ought not be in the suit as the 2nd Appellant had contracted personally with the Respondent and not affecting the 1st Appellant. Thus, it is trite law that parties cannot approbate and reprobate. Reliance was placed on ABUBAKAR GCON & ORS VS.YAR’ADUA & ORS (2008) 4 NWLR (PT. 1078) PAGE 465.

On the third issue, the Respondent counsel

has urged this Court to substitute the Order 2 of the trial Court made in the judgment with one of an order of exemplary and/or aggravated damages also known as punitive damages of the same amount N2,000,000 as prayed by the Respondent in the Amended writ of summons as the Respondent has suffered greatly as a result of the Appellants refusal to return his money since 2013.

PRELIMINARY OBJECTION
The Respondent filed a Notice of Preliminary Objection on the 13th of April, 2017 and three issues for determination were raised. They are:
(i) Whether Grounds (i),(ii) and (iii) of the Notice of Appeal filed on the 9th day of June 2015 are incompetent and ought to be struck out under the provisions of Order 7 Rules 2 (2) (3) and (6) of the Court of Appeal Rules 2016.
(ii) Whether Issues No ii and iii of the Appellants Brief founded upon Grounds I, ii and iii of the Notice of Appeal filed on the 9th day of June, 2015 are consequentially incompetent under the circumstances of Prayer 1 of this Preliminary objection.
(iii) Whether Ground vi of the Notice of Appeal is deemed abandoned by the Appellant for not raising any issues there from.

On issue one, the Respondent counsel has argued that relying on Grounds i, ii and iii of the Notice of Appeal, they are not related to any quotes of any ratio or finding of the Honourable Trial Court in its said judgment and are therefore speculative, hypothetical and academic as they are just the imagination of the Appellants.

Also, it was argued by Respondent’s counsel that the issue of Quasi-contract is nowhere contained in the said judgment and there is nowhere in the ratio of the entire judgment wherein the trial Court based any part of its decision on quasi-contract. Thus, amounting to speculation as it is alien to the entire judgment.

Also, the Respondent has argued that Ground three of the Notice of appeal is not based on any ratio of the judgment as all the reliefs sought and granted by the trial judge were in accordance to law and was based on the speculations of the Appellants.

Thus, it is the submission of Respondent’s counsel that Grounds one, two and three of the notice of appeal are incompetent, vague and have no relationship with the judgment of the Court.

Also, the Respondent’s counsel has argued that the

Appellants have not raised an understandable Ground of appeal under their said Ground three of the Notice of Appeal.

On the issue two raised, the Respondent’s counsel has argued that issues two and three of the Appellants’ brief of argument should be struck out and discountenanced since they argued the incompetent grounds of appeal. Reliance was placed on AGBAKA VS. AMADI (1998) 11 NWLR (PT. 572)PAGE 16 AT 24 PARAS E – G.

Finally, it was argued by the Respondent’s counsel that no issue for determination was distilled from Ground six of the Notice of appeal and thus, they are deemed abandoned. The case of ZANEN VERSTOEP & CO (NIG) LTD VS. FOUR STAR IND. LTD (2016) LPELR – 41258 was cited in support.

The Appellants filed a Reply Brief on the 29th of January, 2018 but deemed by an order of Court on the 22nd of January, 2020. In response to the Preliminary objection filed by the Respondent, the Appellants have argued that the Preliminary objection of the Respondent lacked understanding and it is a clear misconception of the Appellant’s Notice of Appeal, Grounds of Appeal and issues raised therein. It was argued

that the learned trial judge failed to make a pronouncement on the legality and validity of the oral contract between the parties as it was a question of law.

On the issue of estoppel, the Appellants argued that the Respondent’s argument is misconceived as there was no oral contract and also, the Appellants has argued that the Respondent has no right to argue a new issue not contained in the Appellants’ Notice of Appeal. It was further argued that it is trite law, a Respondent cannot raise a new issue on appeal unless he files a Respondent’s Notice or a Cross Appeal.

The Appellants further argued that the contract was invalid because the number of shops to be given to the Respondent was never ascertained. Finally, the Appellants argued that only the 2nd Appellant ought to be made party as he entered into the contract personally, without the 1st Appellant.

DECISION ON THE PRELIMINARY OBJECTION RAISED BY THE RESPONDENT
Having read and digested the arguments put forward by the Respondent’s counsel in his Notice of Preliminary Objection, I will proceed to decide same.

I have thoroughly read the Notice of Appeal

dated the 9th of June, 2015 and analysed the grounds of appeal stated therein.
In the case of MILITARY ADMINISTRATOR, EKITI STATE VS. ALADEYELU (2007) ALL FWLR (PT. 369) 1195 AT 1220; PARAS. D – E (SC), it was held per Onnoghen, JSC that
“Appeals are usually against the ratio decidendi in the judgments on appeal. An appeal must be directed at the reasons for the judgment of the Court appealed against and not outside it. In the instant case, there was no decision of the trial Court relating to the installation of the appellant, the Court of Appeal was therefore in error to have made orders on such because it lacked the jurisdiction to do so.”
In the case of CHUKWUOGOR VS. CHUKWUOGOR (2007) ALL FWLR (PT. 349) 1154 AT 1169 PARAS. G – H (CA), it was held that:
“As the issue was not raised for the consideration of the Court below, it made no finding on it. Therefore the appellants cannot now raise the issue. An appeal is against the decision of the Court below and a challenge to the validity of that decision. More importantly, an appeal is always against the ratio of the trial Court’s decision and can never be at large.

See SARAKI V. KOTOYE (1992) 3 NSCC 331 AT 355; OBA V. EGBERONGBE (1998) 8 NWLR (PT. 615) 485 AT 489.”
The Respondent’s counsel has argued that Grounds one, two and three of the Notice of Appeal are not based on the judgment of the trial Court. I do not agree with the Respondent’s counsel. The fact that a matter is not explicitly stated in the judgment of a Court does not mean it is not part of it. The issue of the validity of the contract between the parties was before the trial Court. Grounds 1, 2 and 3 raised in the Notice of Appeal are clearly based on the judgment of the trial Court.
Thus, the issue of quasi contract raised by the Appellant cannot be said to not relate to the judgment of the trial Court. This is because the Appellant raised this issue in his bid to argue that the trial judge ought not to have granted the principal relief since the Respondent did not bring it under the “appropriate” cause of action.
Arguments on issues flow from one to another. The grounds 1, 2 and 3 of the Notice of Appeal are competent and I so hold.

On the last issue raised by the Respondent that no issue for determination was

distilled from Ground six, I agree with the Respondent counsel. The Appellants have failed to distill an issue for determination from the said Ground six. There is nothing on the face of the brief to show that issues were distilled from ground six of the Ground of appeal.
In the Supreme Court case of GALADIMA VS. STATE (2018) 13 NWLR (PT. 1638) PAGE 357 AT 373 PARA G, it was held per Ariwoola JSC that:
“It is trite that by the rules of practice and procedure, in particular, of the appellate Courts, appeals are to be determined on the issues distilled from the competent grounds of appeal raised against the judgment being appealed. Therefore, any ground of appeal from which no issue has been formulated is deemed to have been abandoned and is liable to be discountenanced and struck out by the Court. Indeed, any such ground is lifeless and may not need a specific order to have it struck out yet it should still be struck out.”
See also the cases of MAOBISON INTER LINK ASS LTD VS. UTC (NIG) PLC (2013) 9 NWLR (PT. 1359) PAGE 197; BISIRIYU AKINLAGUN & ORS VS. TAIWO OSHOBOJA & ANOR (2006) 12 NWLR (PT. 993) PAGE 60.

In this appeal, no issues were formulated from ground six of the Notice of appeal. This simply means that the ground is deemed abandoned. Accordingly, the said ground six is hereby struck out.

The preliminary objection succeeds in part but did not terminate the appeal. I will hereby proceed to determine the substantive appeal.

MAIN JUDGMENT
Having read through the respective briefs filed by the parties to this appeal, I will now proceed to determine same. I will adopt the issues for determination raised by the Appellants. They are hereby reproduced:
(i) Was the 1st Appellant liable for the sums claimed in the action? (Ground iv)
(ii) Did the Respondent establish a valid legal and subsisting contract with the Appellants and the attendant breach by the latter and was judgment wrongfully entered against the Appellants without a consideration of this issue. (Ground i & ii).
(iii) Was the Respondent entitled to his principal relief, not having founded his claim on quasi-contract? (Ground iii).
(iv) Was the Court right to have awarded both special and general damages for breach of contract? (Ground v)

ISSUE ONE
(i) Was the 1st Appellant liable for the sums claimed in the action? (Ground iv)

In this instant Appeal, the Appellants’ counsel has argued vehemently that it was the 2nd Appellant that entered into the oral contract with the Respondent personally and not on behalf of the 1st Appellant in anyway. It is the 2nd Appellant’s argument that the 1st Appellant should never have been joined as party in the suit at all. At the trial Court, he had made averments, trying to prove that he was indeed acting on his own.

The questions that readily come to my mind are: would the Respondent have given the 2nd Appellant the sum of N14,237,000 to execute the contract awarded to the 1st Appellant if the 2nd Appellant was not the chairman/CEO of the 1st Appellant? Would the Respondent have borrowed the 2nd Appellant the sum of N14,237,000 if there was no oral offer, stating that upon the execution of the project by the 1st Appellant, the Respondent will enjoy certain rewards? Why was the 1st Appellant a party to the agreement presented to the Respondent by the 2nd Appellant?

In answering these questions, I will look at the originating processes filed at the trial Court. Looking at the paragraphs of the Amended Statement of claim, it is clear that the

Respondent released the sum of N14,237,000 to the 2nd Appellant only because he was the Chairman/CEO of the 1st Appellant.

Paragraphs 8, 9 and 10 of the Amended Statement of claim are hereby reproduced:
8. The Plaintiff avers that sometime between ending of December, 2010 and early January, 2011 or thereabout, sometime in the afternoon or so soon thereto, and at the said Directorate of Petroleum Resources, Abuja, the 2nd Defendant approached him with an oral offer to jointly finance and execute a contract awarded the 1st Defendant for the construction/development of a Multi-purpose Hall Complex at Gwarimpa Estate, Federal Capital Territory, Abuja by and on behalf of the Amalgamated Union of Public Corporation, Civil Service, Technological and Recreational Services Employees (AUPCTRE).
9. The Plaintiff avers the 2nd Defendant further gave him a photocopy of a letter dated 27th of May, 2011 to which was annexed a document titled “Proposed office space/shop/multipurpose Hall for AUPCTRE (FHA Branch) Abuja” in apparent effort to authenticate his claimed contract award by Amalgamated Union of Public Corporation, Civil Service,

Technological and Recreational Services Employees (AUPCTRE) in favour of the 1st Defendant.
10. The Plaintiff avers that I furtherance of the 2nd Defendant’s oral proposal, it was agreed that while the 1st Defendant was upon completion of the said project, to manage and operate the said office space/shop/multipurpose hall for AUPCTRE (FHA Branch) Abuja for 15 years, the Defendants would from the said number of years transfer to the Plaintiff’s control a yet to be determined number of shops/offices to manage and operate as well as for him to have a share of profits to be made by the Defendants and which shops/offices at the expiration of the said 15 (fifteen) years would together with the rest of the complex under the Defendants management revert to the Amalgamated Union of Public Corporation, Civil Service, Technological and Recreational Services Employees (AUPCTRE).

From the above, it is crystal clear that the only reason the Respondent gave the sum of N14,237,000 to the 2nd Appellant was because the 2nd Appellant was the Chairman/CEO of the 1st Defendant and also, the money was given only for the execution of the contracts and project

awarded to the 1st Defendant.

To cap it all, the Draft agreement presented by the 2nd Appellant to the Respondent in February 2011 clearly stated the 1st Appellant and the Respondent as parties to the agreement. Furthermore, in the said agreement, the Respondent is referred to as the lender. It was also stated in the recital that:
“WHEREAS THE LENDER has agreed to loan monies to MOTECH towards this Development Project as and when available.”
It is also stated in the agreement that:
“MOTECH acknowledges the receipt of a loan of N5,000,000 (Five Million Naira) from THE LENDER on the 27th of January, 2011.”
“MOTECH shall pay back the loan with interest at the rate of 30% per annum at the expiration of 1 year from the 27th of January, 2011, that is to say on or before the 26th day of January, 2012.”

Enough said, the argument of the 2nd Appellant on the issue of privity of contract has been totally flawed by the above. The 1st Appellant is clearly a party to the “contract” between the Respondent and 2nd Appellant and the trial Court was definitely right by awarding judgment jointly and

severally against the Appellants.
Issue one is hereby resolved against the Appellants.

ISSUE TWO
Did the Respondent establish a valid legal and subsisting contract with the Appellants and the attendant breach by the latter and was judgment wrongfully entered against the Appellants without a consideration of this issue. (Ground i & ii).

evidence of consensus ad idem between them. Then if there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same. See: Afolabi v. Polymera Industries (1967) 1 All NLR 144. The acceptance must correspond with the term of the offer. If it purports to qualify the offer, it may amount to a counter-offer and not an acceptance. It may amount to rejection of the offer. It also destroys that offer so that cannot subsequently be accepted.”
It was further held in the same Supreme Court case that:
“It is trite that before any contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the contract must be at ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself for enforceability.”

ODUTOLA V PAPERSACK (NIG) LTD (2006) 18 NWLR (PART 1012) PAGE 470.

Going by the above decision of the Apex Court, it is clear that there is no legal written contract between the Respondent and the Appellants.

However, I have looked at the reliefs sought by the Respondent at the trial Court and I can see he never sought for the enforcement of the contract. He is merely seeking for the refund of the money he borrowed the Appellants. This is a clear case of Money had and received.
In the case of C.N. EKWUOGOR INVESTMENT NIG.LTD VS. ZENITH BANK PLC & 2 ORS(2018) LPELR – 46602 (CA) it was held that:
“an action for money had and received would in law lie for money paid by mistake, or for money paid upon a consideration which happens to fail, or for money got through imposition, express or implied, or for money obtained by extortion, oppression or undue advantage taken of the claimant’s position. The action is based on quasi contract imposing the obligation on the defendant a promise to pay, either actual or implied by law, as if the defendant had incurred a debt and is therefore bound by the ties of natural justice to refund founded

on the equity of the claimant’s case, as if it were upon a contract; showing the obligation to repay is imposed by the Court simply under the circumstances of the case and on what the Court considers is just and reasonable having regard to the relationship of the parties. It is in that wise a debt or obligation constituted by the act of the law, apart from any consent or intention of the parties or privity of contract; and if I may add it is based on conscience rooted in the adage that one should not be allowed to reap where he did not sow vide Oduwobi v. Barclays Bank DCO (1962) 1 SCNLR 226 or (1962) 1 All NLR 143 at 146 – 147 per Unsworth, FJ following the English cases of Sinclair v. Brougham (1914) A.C. 398, Moses v. Macferlan 2 Burr. 1005, Brook’s Wharf & Bull Wharf Ltd. v. Goodman Bros. (1937) 1 K.B. 534.
See also ADESINA AND ORS VS. KOLA AND ORS (1993) 6 NWLR (PT. 298) 182 AT 201 – 202.
One thing is straight; there was no valid contract between the Appellants and the Respondent. All that was in existence was an “inchoate agreement” which had been set in motion by the conduct of the Respondent of giving the sum

of N14,237,000 to the Appellants.
There is definitely no breach of contract. However, the Appellants cannot hold on to money given to them under an inchoate agreement under the guise that there was no valid contract. That will amount to ripping the Respondent off.
In the case of AEROFLOT SOVIET AIRLINES VS. UBA LTD [1986] 1 NSCC 698 wherein the Supreme Court said thus:-
“The common law action for money had and received has always been used, wherever conversion lies, and money has been received on behalf of the plaintiff by the defendant, to compel the defendant to restore such money to its true owner. Since the action for money had and received is alternative to conversion, the plaintiff is entitled to waive the wrong and sue for money had and received. As Lord Wright expressed it in Fibrosa Spolka Akeyna v. Fairbarn, Lawson Combe, Barbour Ltd. (1943) A.C. 32 at p.64, ‘the common law still employs the action for money had and received as a practical and useful, if not complete or ideally perfect instrument to prevent unjust enrichment, aided by the various methods of technical equity which are also available, as they were found to be in

Sinclair v. Brougham.” The action for money had and received, though for the purposes of pleading made alternative to an action for conversion, is an independent cause of action; and lies even where the action for conversion may be unavailable. – see Fibrosa Spolka Akeyna v. Fairbaim, Lawson, Combe Barbour Ltd. (1943) A.C. 32. There seems to be no doubt that a customer’s claim to moneys received by a banker on his account would be for money had and received. Hence when the plaintiff, a customer of a bank, in an action for money had and received proves that the defendant banker has received on his account the money claimed, the plaintiff is undoubtedly in a position to receive such money. In an action for money had and received, the negligence of the defendant is not a necessary element of the liability. The essential ingredients are that money due to the plaintiff has been paid to the defendant and who has been unjustly enriched by such payment. It is therefore unconscientious and contra aequieetbonun for the defendant to retain it as against the plaintiff. The Court of Appeal would seem to have been misled by the contention of the appellant before them and

therefore accepted the submission that the learned trial judge decided the case before him and found respondent liable on the principle of negligence. Nothing is further from the true legal position. I agree with the view of Mr. Popoola for the appellants that the use of the word “negligence” in the context can only connote carelessness. xxxx” See also the decision of this Court in the case of OZIMS V. ANORUO [1991] 3 NWLR (Pt. 181) 571 wherein Oguntade, JCA; (as he then was) dwelling on the legal basis of money had and received said thus: – “An action for money had and received, simpliciter, is based on what is generally described as quasi-contract. It is an equitable remedy for which the action lies for the recovery of money had and received under circumstances where any notion of an actual contract is excluded. It lies for money paid by mistake; or upon a failure of consideration, or for money got by imposition, express or implied; or extortion, or oppression; or an undue advantage taken of a person’s situation, contrary to the laws made for the protection of persons under those circumstances – see Moses v. Macferlan (1760) 2 Burr 1(X) 5, 1012 per Lord

Mansfield. When an action is based on money had and received, the relationship of the parties is not looked upon as contractual giving rise to an obligation to repay. It is imposed by the Court under circumstances which it considers just and reasonable having regard to the relationship of the parties on equitable grounds. In other words, it is a debt or obligation to repay constituted by the act of the law, apart from any consent or intention of the parties or privity of contract. See Brooks Wharf & Bull Wharf Ltd. v. Goodman Brothers (1937) 1 K.B. 534. These principles were examined and applied by the Federal Supreme Court in Michael Foluwase Oduwobi & Ors v. Barclays Bank D.C.O. (1962) 1 S.C.N.L.R. 226 (1962) 1 All NLR 141 at 144-145.” Per Lokulo-Sodipe, J.C.A. (Pp. 24 – 28, Paras. E – B)

Enough said, it will be cruel to say the least, for the Appellants to expect this Court to refuse to affirm the judgment as regards relief (i) of the Amended Statement of claim. The Appellants have never denied collecting the sum of N14,237,000 from the Respondent neither did they ever deny paying back the sum of N5,000,000 to the Respondent as

part-payment of the money owed, leaving a balance of N9,237,000.
Issue two is hereby resolved against the Appellants.
ISSUE THREE
Was the Respondent entitled to his principal relief, not having founded his claim on quasi- contract? (Ground iii).

From my interpretation of this issue for determination, the Appellant is indirectly saying that the Court should allow him “pocket and the money” of the Respondent because the Respondent grounded the relief sought on breach of contract and not on quasi-contract claim as suggested by the Appellants.
It is disappointing to say the least that the Appellants counsel has raised such an immoral excuse on behalf of the Appellants so that they can escape with the money they received from the Respondent. This is a Court of law and also a Court of justice.
In the case of MONYE VS. ABDULLAHI (2012) LPELR – 20103(CA), the term “substantial justice” was described as:
“Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice, in reality is not justice but a pretentious

caricature. It is justice with a question mark and not justice which is synonymous with the principles of equity and fair play. Caricatures by whatever template are not the best presentations or representations of the real entity. Substantial justice, which is actual and concrete justice, is justice personified and glorified. It is encased in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law and it pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law which is the life blood of democracy. See State v. Gwonto (1983) 1 SCNLR 142; Union Bank of Nigeria Plc. v. Ikwen (2000) 3 NWLR (Pt. 648) 223; Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685; Adebayo v. Okonkwo (2002) 8 NWLR (pt. 768) 1; Asims (Nig) Limited v. Lower Benue River Basin (2002) 8 NWLR (Pt. 769) 349; Afro-Continental (Nigeria) Ltd. v. Co. Operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 813) 303. Thus, for quite sometime now, Courts have gravitated from the regime of doing technical justice to the arena of doing substantial justice. This is in tandem with the

jurisprudence of the wider world and its universal legal system. Indeed, the need for Courts of law to do substantial justice becomes more imperative when deep consideration is given to the provision of the Constitution, which is the fons et origo of our democracy. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423.” Per OREDOLA, J.C.A. (Pp. 23-24, Paras. F – F)
In the Supreme Court case of OMOJU VS. FRN (2008) LPELR – 2647(SC), Tobi JSC explained what justice entails to mean:
“substantial justice, which is actual and concrete justice, is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law. It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law, the life blood of democracy.” (P.14, Paras.F – G).
It is an age long saying that the principle of substantial justice is based on the reasonable man’s test. What would the ordinary man in the society that witnesses proceedings say about justice?
In the Supreme Court case of PAM VS. MOHAMMED (2008) 16 NWLR

(PT.1112) PAGE 1 AT 69 PARAGRAPHS A – G per Tsammani, J.C.A. on (P. 54, paras. A – F) described a reasonable person in the following words:
“The reasonable person and the impartial observer mean the same. They mean a complete stranger, an unbiased person to the proceedings. A reasonable person is a person with reason having a faculty of the mind by which he distinguishes truth from falsehood, good from evil. A reasonable person is a fair, proper and just and unbiased person. An impartial observer is not partial. He favours neither the plaintiff nor the defendant. He is disinterested in the matter, as he treats both the plaintiff and the defendant alike. He is an unbiased person. Both, the reasonable person and the impartial observer are like hypothetical legal standard for determining or judging fairness, fair play and equity. The test of the reasonable man in Nigerian Courts is no more the man at the Clapham junction in London but are in anywhere in the Nigerian cities.”
If this Court closes its eyes and refuses to grant the principal relief of the Respondent, will justice be said to have been done? My answer is in the negative. This

instant case does not fall into the category of the popular saying that “the Court is not a Father Christmas and will not grant reliefs not sought.”
In MTN (NIG) COMMUNICATIONS LTD VS. ESUOLA (2018) LPELR – 43952(CA), it was held that; “The Court is not a Father Christmas to grant a relief not supported by evidence.”
In this instant case, the relief sought was totally supported with evidence. Also, the Appellants never denied receiving the said sum of money from the Respondent. Technicalities have no place in this Court and in our jurisprudence.
In the Supreme Court case of LAGGA VS. SARHUNA (2008) LPELR – 1740, it was held Per Muhammad, JSC that:
“No Court should rely on mere technicalities to shut out an intending appellant. That is the practice.”
Also, in the case of VITACHEM (NIG) LTD VS. DSM SINOCHEM PHARMACEUTICALS INDI PRIVATE LTD (2017) LPELR – 43200, it was held:
“Gone are the days where counsel can use technicalities to halt or stall a matter. The Courts have consistently held that the attitude of the Courts should be towards substantial justice without undue adherence to technicalities.”

I am in further disappointment at the submission of Appellants counsel that it was the Respondent who was in breach of contract by unilaterally ceasing to make financial contribution and the time for the repayment of the debt or money borrowed will only crystallize after the completion of the project.

How can the Appellants say that there is no contract and yet also say that the Respondent is the one in breach by refusing to continue to finance? This is ridiculous. The law is that parties are not allowed to approbate and reprobate. The Appellants cannot reject the existence of a contract and then go ahead to hold the Respondent for breach of same.

Based on the above said, issue three is hereby resolved against the Appellants.

ISSUE FOUR
Was the Court right to have awarded both special and general damages for breach of contract? (Ground v)

Having resolved in issue two that there was no valid contract between the Appellants and the Respondent but there was a inchoate agreement which had been set in motion, the award of special and general damages by the trial Court based on breach of contract was erroneously

granted. There was no contract, therefore there could be no breach. There is no evidence to support the award of the special and general damages.
I do agree with the Appellants that the award of the general and special damages by the trial Court would amount to double compensation and it ought not to have been granted. I hereby set aside the general and special damages of the sum of N2,000,000 awarded in favour of the Respondent for breach of contract.
Issue four is hereby resolved in favour of the Appellants.

The appeal succeeds in part. The total sum of N9,237,000 should be paid to the Respondent by the Appellants jointly and/or severally at 10% per annum from the date of judgment until the resulting judgment sum is fully and finally paid. No order as to cost.

ADAMU JAURO, J.C.A.: I was afforded a draft copy of the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA. I am in agreement with the reasoning and conclusion to the effect that the appeal partially succeeds.

I adopt the said judgment as mine, in allowing the appeal in part. I abide by all consequential orders made therein.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I read the draft judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning and adopt the conclusion therein as mine.

Appearances: