SANTRADE INVESTMENTS LTD & ORS V. TINO ELECTRONICS NIGERIA LTD
(2010)LCN/3725(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of April, 2010
CA/L/190/05
RATIO
CONTRACT: CONSEQUENCE OF A CONTRACT ENTERED INTO UNDER DURESS
Consequently, a man who entered into a contract under duress may either affirm or avoid such a contract after the duress has ceased, otherwise he may be held bound on the ground of ratification. See ORMES VS. BEADEI (1860) 2 DEGF & J33; MICHELI VS. HOMRAY (1881) 8 QBD 587; ALL CARD VS. SICINNER (1887) 36 CH.D. 145. PER I. M. M. SAULAWA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. SANTRADE INVESTMENTS LTD
2. LADI LADENEGIAN
3. RANSTON PROPERTIES LTD Appellant(s)
AND
TINO ELECTRONICS NIGERIA LTD Respondent(s)
I. M. M. SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal was filed in the High Court of Lagos State Lagos Judicial Division, on 18/4/02 against the judgment of that court, which was delivered on 23/01/03 by the Honourable Justice A.B. Adeniji, J; in suit No. LD/10/2000.
On 03/01/2000, the Respondent issued out a writ of summons against the two Appellants vide the said suit in question.
By the amended statement of claim thereof dated 13/11/2000, the Respondent claimed against the Appellants the following two reliefs:
“(1) WHEREOF the plaintiff claims against defendants jointly and severally is for the sum of N28,000.00 (Twenty-Eight Million Naira) being balance of the cost of Electronic goods sold and delivered to the Defendant as per their L.O.P. dated 18th December, 1997 and confirmed in a memorandum in writing signed by the parties bearing the date 24th day of December, 1998.
(2) The plaintiff claims interest on the unpaid balance at the rate of 21% per annum from the 18th December, 1997 until final payment, the interest being the amount charged by the plaintiff’s bank on the overdraft with which the plaintiff financed the supply of the goods to the defendant.”
On their own part, the Appellants filed their statement of defence on 05/4/01, thereby denying the totality of the claim, thus:
“25. Whereupon the Defendants aver that they are not indebted to the Plaintiff and have rather suffered loss and damage as a result of the plaintiff’s breach of contract and the continuing assault and unlawful detention of the 2nd Defendant.
26. The defendants deny paragraphs 12 & 13 and put the Plaintiff to the strictest proof thereof.
27. The defendants do hereby plead all documents pertaining or relevant to this transaction.
28. The defendants aver that the plaintiff is not entitled to the claim sought in paragraph 14(1) & (2) of its Statement of Claim.”
The Appellants also counter claimed in the said statement of defence against the Respondent, and thereby sought the following reliefs:
“2. Whereupon the 1st and 2nd Defendants claim against the plaintiff is as follows:-
3. (sic) Special Damages for breach of contract in the sum of N8,000,000.00 (Eight Million Naira only).
PARTICULARS
“i. Loss sustained by the 1st Defendant for the failure of the Plaintiff to supply the goods under the L.P.O. within the stipulated time and failure to supply the goods subject of the L.P.O. in full.
ii. Loss of payment under the 1st Defendant’s supply contract.
iii. Discounted value received for the goods eventually supplied by the Plaintiff N20,000,000.00
iv. Amount of loss; N18,000, 000. 00
v. Damages for the unlawful arrest and battery of the 2nd Defendant by the Plaintiff and its Managing Director N10,000,000.00.”
4. And the 1st Defendant claims that in the event that the Defendants be found liable to the plaintiff in any sum that the said sum be set off against the counter claim.
5. And the Defendants claim the sum of N28,000,000.00 (Twenty Eight Million Naira) as special and general damages against the plaintiff.”
Parties filed and served their respective pleadings. The case accordingly proceeded to trial. Eventually, the trial court delivered judgment, on the said 23/01/2003, to the effect, inter alia, thus:
“Judgment is hereby entered for the plaintiff against the Defendants jointly and severally for the sum of N28,000,000.00 (TWENTY EIGHT MILLION NAIRA) being balance of the cost of Electronic Goods sold and delivered to the Defendant as per their L.P.O. dated 10th December, 1997 and confirmed in a memorandum in writing, signed by the parties bearing the date 24th day of December, 1998.
Interest on the unpaid balance at the rate of 21% per annum from the 18th December, 1997 until final payment, the interest being the amount charged by the plaintiff’s bank on the overdraft with which the plaintiff financed the supply of the goods to the defendant.
I shall hear parties on costs.
It is now well settled by the Supreme Court that it would not award costs over N10, 000. No doubt, the plaintiff is entitled to costs, but I cannot award the sum asked for, but I hold that a costs of N5,000.00 is reasonable in the circumstance, and I so award.”
The Appellants were aggrieved by the above decision. They, therefore, filed a notice of appeal, on 18/4/02 in the court below, seeking the following relief:
“1. An order setting aside the judgment of the court below and ordering a trial before another judge of the Lagos High Court.”
The notice of appeal was predicated on four grounds.
It’s, however, evident from the record, that on 24/9/03 this court granted leave to the Appellants to file additional grounds of appeal. The five additional grounds in question are contained in the supplementary record of appeal, dated and filed on 09/5/06.
Parties have so far filed and served their respective briefs of argument. Most particularly, the Appellant’s brief was filed on 05/5/06, but deemed properly filed and served on 05/6/07. On the other hand, the Respondent’s brief was filed on 08/6/07, undoubtedly within the statutory time limit.
The five issues formulated by the Appellants are contained at pages 5 & 6 of the brief thereof, viz:
ISSUE 1
Whether or not the Appellants’ Defence was evasive and therefore amounted to an indirect admission entitling the Respondent to judgment on admission under order 29 rule 6 of the High Court of Lagos Civil Procedure Rules 1994 in the sum of N28,000,000.00 claimed by the Respondent against the Defendants based on the fact that the Defendant did not deny outrightly all the allegation in the Statement of Claim.
ISSUE 2
Whether or not the Respondent could rely on the hand written agreement dated 24th December, 1998 between the Respondent and the 1st Appellant which was extracted before the police while the 2nd Appellant was under arrest at the police station at Force CID Alagbon Close to establish liability against the Appellants in the sum claimed.
ISSUE 3
Whether or not the 3rd Appellant become privy/party to the contract, subject matter of this Appeal, by virtue of its coerced letters to Standard Trust Bank of 1st and 3rd April, 1998 or otherwise and as such became entitled to any benefit or subject to any liability arising from the said LPO contract between the Respondent and the 1st Appellant.
ISSUE 4
Whether or not the Plaintiff was entitled to the award of interest claimed as special damages for undisclosed overdraft facility of undisclosed Bank without proper particularization and evidence led thereof in establishing same and whether or not the award of 21% interest per annum in this case in the light of the Respondents Affidavit (particularly para. 15) of 8th day of June, 2001 is not tantamount to double compensation (see pages 104 -107 of the records)
ISSUE 5
Whether or not the Counter-Claim of the Defendant should have been determined alongside the Motion for judgment without a hearing on the merit, the latter being an independent cause of action.”
On the part thereof, the Respondent has formulated a total of four issues for determination at pages 3 & 4 of the brief, to wit:
‘3.01 …………………….
3.02 …………………….
3.03 …………………….
3.04 …………………….’
Having contrasted the issues raised in the respective briefs of argument of the parties learned counsel, I am inclined to determine the appeal on the basis of the Appellants’ five issues.
ISSSUE NO.1:
The first issue raises the question of whether or not the Appellants’ defence was evasive, and thus amounted to an indirect admission, entitling the Respondent to judgment, under order 29 Rule 6 of the High Court of Lagos Civil Procedure Rules, 1994 in the sum of N28,000,000.00 claimed against the Defendants based on the fact they did not deny outrightly on the allegation in the statement of claim. The issue is predicated on ground 1 of the grounds of appeal.
In a nutshell, the submission of the Appellants on the 1st issue is to the effect, inter alia, that by virtue of paragraphs 4, 12, 13, 15, et al, of the state of defence thereof, the Appellants’ denial of the claim was not evasive. The reasons allegedly, being that:
”The Appellants denied some facts and admitted some because according to the rules of pleading it is weak to deny every allegation in the statement of claim. Each party should admit as much fact as can be established or proved against it and the Appellants complied with this requirement.” See page 7, paragraph 5.07 of the Appellants’ brief.
It was also argued that the Appellants also set out a counter-claim and gave particulars of their loss. That the Respondent neither filed a reply to deny or attack the facts averred to in the statement of defence nor filed a defence to the counter claim. It was further argued that the position of the law is that when as a result of exchange of pleadings by parties, a material fact is affirmed by one party but deemed ‘by another’, the question thus raised between parties is an issue of fact, which is usually subjected to test by trial on the merit. See UGOCHUWKWU VS. UNIPETROL (NIG) Plc (2002) 7 NWLR (pt. 765) 1 at 6 & 7.
Thus, it was contended, that the failure of the trial court to allow trial on the issues in controversy between the parties has led to a miscarriage of justice. Submitting on this issue, the Respondent alluded to the motion on motion(sic) brought under orders 25 Rule 2 and 29 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 1994, the amended statement of claim, as well as the statement of defence in question. I was argued, that the Appellants have alluded admitted paragraphs 1, 2, 3, part of paragraph 4 and 5 of the Respondent’s statement of claim. That in paragraphs 16, 17, 18, 19 & 20 of the statement of defence, the Appellants admitted the agreement arrived at to pay to the Respondent as contained in the document dated 24/12/1998, which had taken in element in there paid debt.
That, the Appellants did not only admit the contract of sale and its value of N31,000,000.00 in paragraphs 5, 7, 8, 9 & 10 of the statement of defence, but also pleaded the payment of N3,000,000.00 to preserve wealthy relationship.
It was submitted, that the Respondent had equally pleaded the agreement in paragraphs 7, 8 & 8(a) of the statement of claim to the effect that the Appellant shall pay N35,000,000.00 in two installments in full and final settlement of the plaintiffs claim. The cases of LARMIE VS. DPMS (2006) 3 MJSC 20 at 37; UNIC LTD VS. FADCO NIG. LTD (2000) 4 NWLR (pt. 653) 466 at 419, to the effect that a written contract has a binding status on the parties and the court has a duty to give effect thereto.
According to the Respondent’s learned counsel, in all the letters addressed to the Appellants, particularly those dated 06/5/99 and 16/11/99, pleaded in paragraphs 11 & 14 of the statement of claim, the Appellants did not reply that he (2nd Appellant) paid agreed and signed the agreement under duress. The Appellants allegedly paid N7,000,000.00 to the Respondent in February, 1999 as part performance, leaving a balance of N28,000,000.00. It was contended that contract entered under duress is voidable, not void. Consequently, a man who entered into a contract under duress may either affirm or avoid such a contract after the duress has ceased, otherwise he may be held bound on the ground of ratification. See ORMES VS. BEADEI (1860) 2 DEGF & J33; MICHELI VS. HOMRAY (1881) 8 QBD 587; ALL CARD VS. SICINNER (1887) 36 CH.D. 145.
The case of OMMAN VS. EKPE (2000) 1 NWLR (pt. 641) at 365 was allegedly inappropriate, as the 2nd Appellant was not shown to be in police custody at the time his counsel, Miss Udochi Iheanacho, drafted the agreement; that the agreement was not made in police cell; that the police were not in any way a party to the agreement either as a witness or as an interested party; and that what the police did was to promote a reconciliation between the parties upon which the Appellants acted by paying part of the agreed amount – (N7,000,000.00). See section 151 of the Evidence Act CAP 112 Laws of the Federation of Nigeria, 1999; IGA VS. AMAKIRI (1976) 11 SC1 at 12 – 13; OKONKWO VS. KAPAJIE (1992) 2 NWLR (Pt. 226) 633 at 635.
It was submitted that the Appellants’ defence is incoherent, full of half admission and half denial. See AG. ANAMBRA STATE VS. CN ONUSELOGU ENT. LTD (1987) 4 NWLR (pt. 66); 547; PHONIX MOTORS LTD VS. OJEWUMI & ORS (1992) 6 NWLR (pt. 248) 503; BALOGUN VS. LABIRAN (1988) 3 NWLR (pt. 80) 66; MOTUNWASE VS. SORUNGBE (1988) 5 NWLR (pt. 92) 90; UREDI VS. DADA (1988) 1 NWLR (APT. 69) 2371, respectively.
The court has been urged to dismiss the appeal, and affirm the lower court’s judgment.
It is instructive, that the judgment of the court below is contained at pages 112 – 136 of the record. The entire 14 paragraphs of the amended statement of claim of the Respondent were reproduced in verbatim from the outset of the judgment at page 113 to page 116 of the record. likewise, the statement of defence (contained at pages 91 – 98 of the record) was reproduced in verbatim at pages 116 – 124 of the record.
Paragraphs 4, 5, 7, 8, 9, & 10 of the amended statement of claim, and paragraphs 5, 6, 7, 8, 9, 10, 16, 17, 18, 19 & 20 of the statement of defence are germane for the determination of issue No.1. The said paragraphs 4, 5, 7, 8, 9 & 10 of the amended statement of claim are reproduced as follows:
“4. At the instance of the 2nd Defendant the 1st Defendant issued a Local Purchase Order dated the 18th December, 1997 directing the plaintiff to supply Electronic goods to it to the tune of N31,000,000.00 (Thirty-One Million Naira) only.
5. The plaintiff on various dates in December, 1997 supplied and the 1st defendant received the said goods accompanied with invoice of the plaintiff which the plaintiff shall rely on at the hearing of this suit. Notice is hereby given to the 1st defendant to purchase same.
7. On the 24th day of December, 1998 the plaintiff and the 1st Defendant entered into an agreement dated 23/12/98 with a view to fully and finally settle the debt owed to the plaintiff by the 1st defendant.
8. By the said agreement it was agreed as follows:
(1) That the 1st Defendant would pay the sum of N35,000,000.00 to the plaintiff as cost of Electronic goods supplied to it by the plaintiff.
(2) That the 1st Defendant shall pay back in the following manner:
(a) N20,000,000. 00 (Twenty Million Naira) on the 20th of January, 1999.
(b) N15,000,000. 00 (Fifteen Million Naira) on 20th February, 1999.
9. The Defendants has since failed/neglected/refused to fulfill the term of the payment agreement but instead has issued cheques which have been consistently dishonoured by its banker. The plaintiff shall rely on the dishonoured cheques of the 1st defendant returned unpaid by Societe Bank (Nig) Ltd. with cheques No. 00000370 dated 12th January, 1998, 00000378 dated 10th February, 1998, 00000378 dated 19th March, 1998, 00000371 dated 13th February, 1998 issued by the defendants to the plaintiff and on instruction of the plaintiff to other customers and cheque No. 09618 dated 3rd July, 2000.
10. The 1st defendant sometimes in February, 1999 paid to the plaintiff the sum of N7,000,000.00 (Seven Million Naira) being part payment of the indebtedness leaving the sum of N28,000,000.00 (Twenty-Eight Million Naira) balance yet unpaid. ”
Paragraphs 5, 6, 7, 8, 9, 10, 16, 17, 18, 19 & 20 of the statement of defence are hereby also reproduced, thus:
“5. Further to paragraph 4 above the defendants state that sometime in December, 1997, the 1st Defendant issued an undated local purchase order (L.P.O.) to the plaintiff for the supply of electronic goods totaling the sum of N31,000,000.00 (Thirty One Million Naira) which the Plaintiff required in execution of a contract worth N38,000,000.00 {Thirty-Eight Million Naira}.
6. The Defendant avers that it was a fundamental term of the contract that the Plaintiff would deliver the said goods to the 1st Defendant or as instructed by the authorized representatives of the 1st Defendant on or before the 18th day of December, 1997 to enable the 1st Defendant perform its supply contract.
7. Due to the agreement between the 1st Defendant and the Plaintiff that the goods will be supplied on credit and that payment for the goods would be staggered and made in agreed instalments the Plaintiff inflated the price of the goods on the L.P.O. as compensation for the delayed payment to N31,000,000.00 (Thirty One Million Naira) instead of the real value of the goods which was about N27,000,000.00 (Twenty-Seven Million Naira).
8. In breach of the contract the plaintiff failed to supply the electronic the plaintiff failed to supply the electronic goods in one go as agreed and instead stock tack to making piece meal delivery of the goods, as a result of which the 1st Defendant was unable to execute its contract hereby the 1st Defendant suffered loss of the expected payment of N38,000,000.00 (Thirty-Eight Million Naira) on the supply contract which it had been given. The Defendants shall rely on the Plaintiff’s various invoices at the hearing of this suit.
9. Eventually the 1st Defendant was forced to discount the electronic goods supplied to it by the Plaintiff for cash in the sum of N20,000,000.00 (Twenty Million Nairo) and as a result of which the 1st Defendant suffered an immediate loss on the L.P.O. goods of N8,000,000.00 (Eight Million Naira) and as a result could not make any payments to the Plaintiff
10. In response to paragraph 5 of the Statement of Claim the Defendants aver that the Plaintiff never fully supplied the goods to the 1st Defendant and that the inflated L.P.O. value of the goods supplied by the Plaintiff between December, 1997 and March, 1998 was N28,000,000.00 (Twenty Eight Million Naira) as opposed to goods worth N31,000,000.00 (Thirty One Million Naira) that the Plaintiff had contracted to supply as agreed by the parties.
16. The Defendants aver that the Plaintiff kept putting pressure on the 1st Defendant and the 2nd Defendant throughout 1998 and eventually when most offices had closed for the Christmas season on the 24th of December, 1998 the Plaintiff through its Managing Director invaded the 2nd Defendant’s home at about 2.00 p.m. on the 24th of December, 1998 being Christmas eve with several officers from CID Alagbon Close who first kicked and slapped the 2nd Defendant around, arrested him, and carted him off to the Alagbon Police Station where they detained him on a false petition filed by the said Timothy Ofozie for issuing dud cheques.
17. Even though in truth and infact the 1st and 2nd Defendants did not issue any cheques whatsoever to the Plaintiff the police refused to release the 2nd Defendant and insisted that they would detain him until January, 1999 when they will be able to charge him to court.
18. Eventually the 2nd Defendant’s driver one Ahmed was able to locate the Defendant’s Lawyer Miss U. Iheanacho of Counsel went to CID Alagbon Close to try to obtain the release of the 2nd Defendant from police custody.
19. After several hours of incarceration Mr. Timothy Ofezie the Plaintiffs’ Managing Director and the IPO in charge of the case and his supervising officer insisted that the 2nd Defendant would only be released if he signed an agreement to pay the sum of N35,000,000.00 (Thirty Five Million Naira) to the Plaintiff even though the 1st and 2nd Defendant did not owe this money to the Plaintiff.
20. Eventually out of fright and frustration the 2nd Defendant compelled his lawyer Miss U Iheanacho to prepare the hand written agreement which the Plaintiff has pleaded in paragraph 8 of the Amended Statement of Claim under duress at about 8.30 p. m. at the premises of the CID Alagbon on the 24th December, 1996 and pursuant to the signing of this agreement by the 2nd Defendant under duress the police released the 2nd Defendant at about 11.00 p.m. to go and spend Christmas with his family.”
Now, the substance of the averment in paragraph 4 of the amended statement of claim is that on behalf of 1st Appellant, the 2nd Appellant issued a Local purchase Order (LPO), dated 18/12/97, to the Respondent to supply some electronic goods to the 1st Appellant, to the tune of N31,000.000.00. Paragraph 5 of the amended statement of defence is to the effect, that on various dates in December, 1997, the Respondent supplied the said electronic goods, accompanied with invoices, to the 1st Appellant.
It is evident, that the averments in paragraphs 4 & 5 of the amended statement of claim alluded to above have been unequivocally admitted in paragraphs 5, 6 & 7 of the statement of defence. However, paragraph 7 of the statement of defence further clarifies that the goods were to be supplied on credit, and that payment from the goods would be staggered and in agreed installments; thus, the Respondent inflated the prices of the goods on the L.P.O as compensation for the delayed payment to N31,000,000.00 (Thirty One Million Naira) instead of the real value of the goods which was about N27,000,000.00 (Twenty-Seven Million Naira).
In paragraph 8 of the statement of defence, it was alleged that the Respondent breached the contract by failing to supply the electronic goods ‘in one go’ as agreed, and instead delivered the goods piece meal. That, this alleged breach of the contract made the 1st Appellant to suffer loss of the expected N38,000,000.00 on the supply contract.
Paragraph 9 of the statement of defence is to the effect that the 1st Defendant was eventually forced to discount the electronic goods supplied to it by the Respondent, resulting in the loss of N8,000,000,00.
Paragraph 10 of the statement of defence specifically controverted paragraphs 5 of the amended statement of defence, to the effect that the Respondent never fully supplied the goods to the 1st Appellant and that-
‘The inflated L.P.O. value of the goods supplied by the Plaintiff between December, 1997 and March, 1998 was N28,000,000.00 (Twenty-Eight Million Naira) as opposed to goods worth N31,000,000.00 (Thirty One Million Naira), that the Plaintiff had contracted to supply as agreed by the parties’.
It was the finding of the learned trial Judge, at page 128 lines 29 – 30, of the record, rightly in my view, that –
“It is not disputed that plaintiff’s claim was for a debt or liquidated demand in money,”
Having critically appraised the averments of the Appellants and the Respondent in the amended statement of claim and statement of defence thereof alluded to above, it has become rather obvious that the parties have joined issues as regards (i) the actual amount of the goods that was agreed upon by the parties; (ii) the breach of the contract alleged by the Appellants,
By the statement of defence thereof, most especially paragraphs 6, 7, 8, 9, 10, 11, 12, & 14 thereof, there is every cogent reason for me to believe that, the parties have joined issues in the pleadings thereof.
In the circumstance, considering the averments in the statement of defence alluded to above, it would be rather inappropriate to speculate that the Appellants’ defence therein was evasive. Thus, the answer to issue No, 1 is in the negative, and same is hereby resolved in favour of the Appellant.
ISSUE NO.2
This second issue is distilled from ground 2 of the grounds 1 of appeal. It raises the vexed question of whether or not the Respondent could rely on the hand written agreement, dated 24/12/98, between the Respondent and the 1st Appellant which was extracted before the police while the 2nd Appellant was under arrest at the police station at Force CID Alagbon Close, to establish liability against the Appellants in the sum claimed.
In essence, the submission of the Appellants’ learned counsel on this issue is that the Respondent did not deny paragraph 8 of the Appellants’ counter affidavit to the motion for Final judgment, to the effect that the purported agreement of 24/12/98 was obtained under duress. The case of ANASON FARMS LTD VS. NAL MERCHANT BANK (1994) 3 NWLR (pt, 331) 241 at 244 – 245 was cited, to the effect that before a court can rely on an admission, it must be unambiguous and freely made by a party. Thus, it was contended that the agreement in question ‘made before the police on 24/12/98 was made under duress to give the 2nd Appellant the opportunity of celebrating Christmas day in his house with his wife and children as the police had threatened the 2nd Appellant in the police cell throughout the Christmas celebration if he did not sign the agreement’. That, the value of an admission depends upon the circumstances in which it was made. See OMMAN VS. EKPE (2000) NWLR (pt. 641) 365 at 368 – 374 per Pats-Acholonu, JCA (of blessed memory, as he then was).
It was finally submitted, that the purported agreement of 24/12/98 did not establish the existence of a new contractual relationship which took the place of the original contractual document (the LPO) between the 1st Appellant and the Respondent, in that it was obtained by use of force and threat by the police at Force CID Alagbon Close.
The Respondents’ submission on this issue could be found at page 9, paragraph 5.09 and at page 14, of the Respondent’s brief. It was submitted, inter alia, that the agreement drafted by the Appellants’ counsel cannot be said to have been made under duress. That, there has been no repudiation of the agreement as soon as the element of duress (if any) ceased. That, the 2nd Appellant did reply to the letters pleaded in paragraphs 11 & 14 of the statement of claim that he agreed and signed the agreement under duress.
The counsel referred to Chitty on Contracts, 22nd edition vol. 1; ORMESVS. BEADEL (1860) 2 DEGF & 133; MICHELLVS. HOMRAY (1881) 8 587; ALL CARD VS. SICINNER (1887) 36 CH. D. 145, to the effect, inter alia, that a contract entered into under duress is violable, not void.
It was argued, that the case of OMMAN VS. EKPE (supra), was most inappropriate, because the 2nd Appellant has not been shown to be in police custody at the time his counsel drafted the agreement; the agreement was not made in police cell; the police was not in any way a party to the agreement either as a witness, or as an interested party; and that:
“What the police did was to promote a reconciliation between the parties upon which the Appellants acted by paying part of the agreed amount (N7, 000, 000. 00) Seven Million Naira. From the pleadings of the parties referred to above, it’s most undisputable that on the 24/12/98, on the eve of the Christmas, the 2nd Appellant was, at the instance of no person other than the Respondent, arrested by a team of police officers, whisked away to the police Force Alagbon Close Ikoyi, Lagos where he was detained for having allegedly issued out a dud cheque to the Respondent.
From the nature and circumstances surrounding the instant case vis-a-vis the pleadings of the respective parties, as contained in the record of appeal alluded to above, there is no gainsaying the fact that the dispute between the Respondent, on the one hand, and the Appellants, on the other, was purely a civil matter. It is therefore, most regrettable, to say the least, that the Respondent, rather than filing a civil action in a competent court of law, had opted to resort to using the police to intimidate and subdue the 2nd Appellant.
It should be reiterated, for the avoidance of doubt, that the 2nd Appellant’s fundamental rights to dignity of life and personal liberty, has been cherishingly guaranteed under sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999, thus:
“34. – (1) Every individual is entitled to respect for the dignity of his person and accordingly-
(a) No person shall be subjected to torture or to inhuman or degrading treatment;”
35. – (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-
In my considered view, the Appellants’ purported failure to fully discharge the debt owed for the electrical goods supplied thereto by the Respondent could not, for, any stretch of imagination, come within the ambit of the exceptions contemplated by section 35(1) of the 1999 Constitution.
Thus, the purported agreement which was drafted by the Appellants’ counsel in consequence of the 2nd Appellant’s arrest and detention at the CID Force HDS, Alagbon Close, Ikoyi, Lagos, is not capable of being considered and enforced as a valid admission, it is most undoubtedly, a voidable document, See OMMAN VS. EKPE (supra) at 373 para H; 374 paras A – B, where in Pats-Acholonu, JCA (of blessed memory, as he then was) aptly lamented thus:
“It is most unfortunate that our citizens now use the army and police personnel to collect debts from fellow business associates whether the debt is real or imaginary. Any document signed in the presence of the police and relating to a civil claim shall be viewed with suspect particularly to the persons against whom it will affect was in custody or under some detention or handicap that he cannot freely enter into a contract what with enforcement officers breathing down his neck. Any document that seeks to establish the existence of a contractual relationship which takes place under the very watchful eyes of the police to whom a purely civil matter is brought to its attention to enforce or put the fear of God into the other side will certainly not be enforced as there is no consensus and is voidable.”
Most certainly, I cannot agree more with the above, the Hon. Justice Pat-Acholonu’s aptly elucidated dictum. Without unnecessarily belabouring the point, in the light of the above reasoning, the answer to issue No.2 is undoubtedly in the negative, and same is hereby resolved in favour of the Appellants.
Having resolved both issues 1 and 2 in the Appellants’ favour, it amounts to an academic and rather a fruitless exercise, to proceed to determine the remaining issues 3, 4, & 5. And I so hold.
Hence, in the circumstance, I have no hesitation whatsoever in upholding the submission of the Appellants’ learned counsel, to the effect that the learned trial Judge was in error in entering judgment against the 3rd Appellant. And I so hold. I am of the firm view that the justice of the matter demands that the suit be remitted to the lower court for retrial by another judge.
THE COUNTER-CLAIM
It should be reiterated, at this point in time, that issue No.5, specifically deals with the counter claim of the Appellants contained at pages 97 – 98 of the record. However, in view of the reasoning and conclusion reached regarding the substantive claim, there is no gainsaying the fact, that the counter claim, although distinct from the substantive claim, ought to equally be remitted to the lower court for trial. And I so hold.
Consequently, I have no hesitation whatsoever in holding that the appeal is meritorious, and same is hereby allowed by me. The judgment of the court below delivered on 23/01/03 is hereby set aside. I accordingly order for a trial of the Suit No. LD/10/2000 on the merits by another judge of the lower court.
The Appellants shall be entitled to costs of N30,000.00 against the Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother SAULAWA JCA. I agree with both the reasoning and conclusions. I adopt it as mine.
REGINA OBIAGELI NWODO, J.C.A.: I have read in draft the Judgment of my learned brother SAULAWA JCA, just delivered. I agree with his lordship that the learned Trial Judge was in error when he entered Judgment against the 3 Appellants. I also agree the appropriate order to make is one of remittance to the High Court of Lagos State for re-trial by another Judge. Consequently, I hold the Appeal has merit and is allowed. I abide by the consequential orders made inclusive of the order as to cost.
Appearances
Udochi Iheanacho (Miss);
Esele Okhah (Miss);
David NwoguFor Appellant
AND
B. A. LawalFor Respondent
