LawCare Nigeria

Nigeria Legal Information & Law Reports

TEMPAIR GLOBAL SERVICE LTD & ANOR v. IFEANYI (2022)

TEMPAIR GLOBAL SERVICE LTD & ANOR v. IFEANYI

(2022)LCN/16437(CA)

In The Court of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, July 28, 2022

CA/B/460/2019

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. TEMPAIR GLOBAL SERVICE LIMITED 2. MR. MICHAEL EROMOSELE ABURIME APPELANT(S)

And

ENGR. SYLVESTER IFEANYI RESPONDENT(S)

 

RATIO

THE POSITION OF LAW WHEN ONE PARTY ACCEPTS AN OFFER MADE BY ANOTHER

Agreement generally is made when one party accepts an offer made by the other. It must be certain and final. Agreement can be signified through writing depending on the circumstances in which the contracting parties find themselves. Where it is expressly in writing, the general rule is that the Court will not look beyond that writing to determine what its express terms are. Where the contract/agreement is made orally, the ascertainment of its terms is a pure question of fact: – A. G. Rivers State v. A. G. Akwa Ibom State & Anor (2011) LPELR – 633 (SC) Pp. 118 – 119 paras E – A. See also, UBA Plc v. Wad of Software Consulting Limited (2017) LPELR – 50251 (CA) pp. 40 – 42 paras F – C, Akpan v. Ubong (2013) LPELR – 20418 (CA) pp. 53 – 54 para B. PER ABUNDAGA, J.C.A.

THE POSITION OF LAW ON CAUSE OF ACTION

A cause of action as defined in Strouds judicial Dictionary is the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or combination of facts which gives rise to a right to sue and it consists of two elements- the wrongful act of the defendant which gives the plaintiff his cause of action and the consequent damage. In the case of Yusuf & Ors v. Akindipe & Ors. (2000) LPELR – 3532 (SC), a reasonable cause of action was defined thus:
“A reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleading statement of claim are considered. So long as the statement of claim discloses some cause of action, or raises some question fit to be decided by a judge as in this case. The mere fact that the case is weak, and not likely to succeed, is no ground for striking it out or dismissing it. See Wenlock v. Moloney (I965) 2 All ER. 871.” Per OGWUEGBU, JSC (P. 13, paras. D-E) And as to how a Court may properly determine the question, whether there arises a cause of action in any given case, the apex Court held thus in the case of Abubakar v. Bebeji Oil and Allied Products Ltd & Ors (2007) LPELR – 55(SC):
“It is a cardinal principle of law that to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons and the averments in the statement of claim. For it is by examining them that a Court can satisfy itself on the actual grouse of a party and the remedy or relief it is seeking from the Court. After determining the cause of action then by the very averments, the Court can discern the time that a cause of action arose. See Alhaji Usman Dantata v. Mouktar Mohammed (2000) 7 NWLR (Pt. 664) page 176, Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) page 1 and Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) page 446.”
Per MUKHTAR, JSC (Pp. 35-36, paras. F-B)
I refer also to the following cases: Ayanboye & Ors v. Balogun (1990) LPELR – 668 (SC) p. 18 paras C-E, Dada & Ors v. Ogunsanya & Anor (1992) LPELR – 908 (SC) p. 12 paras E – G, Ogbimi v. Ololo & Ors (1993) LPELR – 2280 (SC) p. 12 paras B – C; Sifax (Nig.) Ltd. & Ors v. Migfo (Nig.) Ltd & Anor (2018) LPELR – 49735 (SC) p. 38 paras B – E, Frozen Foods (Nig.) Ltd & Ors. v. Estate of Oba John Agbola Ojomo & Ors. (2022) LPELR – 57815 (SC) pp. 51 – 52 paras C – D.
PER ABUNDAGA, J.C.A.

THE POSITION OF LAW WHERE A PARTY HAS PAID MONEY TO ANOTHER PERSON FOR A CONSIDEREATION THAT HAS FAILED
The law is settled that where a party has paid money to another person for a consideration that has failed, the sum of money had and received must be refunded. See Muhmmad & Anor v. Maglodan (Nig) Ltd (2017) LPELR – 43191 (CA) P. 41 paras. D – F. See also the following:
Akinade v. Nigeria Law School Lagos Campus Staff Co-operative Thrift and Credit Society Ltd. (2015) LPELR – 41705 (SC) P. 16 Paras A – B, Akale v. Omale (2017) LPELR – 43336 (CA) PP. 21 – 22 Paras G – C. PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The appellants who were defendants in Suit No. B/183/2015 before the High Court of Edo State instituted against them by the respondent as the claimant filed an appeal against the judgment which was against them. The judgment was delivered by Hon Justice M. O. Ighodalo on 19th December, 2018.

The events leading to the institution of the Suit can be summarized as follows: The claimant and defendants entered into a written agreement described as “Joint Venture/Loan Agreement” on 23rd October 2009. In the agreement in which the 2nd defendant was a guarantor of the 1st defendant, it was thus provided:
“Whereas
1. The company carries on the business of electronic surveillance equipment, and being cash strapped, is desirous of obtaining financial assistance/loan from the financier/lender.
2. The financier/lender has agreed to give the financial assistance/loan to the company on terms and conditions hereinafter contained.
​3. The surety has agreed to guarantee the repayment of the loan or financial assistance in the event of the failure of the company to repay the said loan or financial assistance.
NOW THIS AGREEMENT WITNESSETH THAT:-
In consideration of the sum of N3,180,000 (three million, one hundred and eighty thousand naira) and $16,820 (sixteen thousand eight hundred and twenty dollars) lent or advanced to the company by the financier/lender for financing solely the business of the company as interest free loan (the receipt of which sum the company hereby acknowledges and the payment to the company of which sum the surety hereby acknowledges), the company and surety hereby jointly and severally covenant with the financier/lender to repay the sum in the following manner:
a. The financier/lender shall be entitled to 30% of the proceeds from Tempair Global Services Limited on all transactions initiated by the financier.
b. The financier/lender shall be entitled to 10% of every contract sum awarded to the Tempair Global Services Limited initiated by the financier.
In the event of the company and the surety failing to repay the loan in accordance with paragraphs (a) and (b) supra, the principal or the whole sum lent or advanced to the company shall become due and payable with 30% interest from the date of this agreement or breach which ever is earlier without any or further demand or notice in that behalf.
The company hereby covenants that it will not for any reason whatsoever divert the loan for any other purpose other than for the business of Tempair Global Services Limited.
This agreement supersedes all earlier agreement entered into by the parties hereto.”

The agreement was signed by the claimant and the 1st defendant, which was represented by its Director/Secretary. The 2nd defendant signed as surety of the company (1st defendant). It is common ground between the parties that the agreement could not be consummated. Eventually, the claimant claimed that he caused a letter of demand to be written to the defendants for the refund of his money but upon the failure/refusal or neglect of the defendants to pay him, he decided to sue them vide a writ of summons which was issued on 30th September, 2015. The writ of summons was endorsed with a statement of claim containing the plaintiffs’ claims against the defendants jointly and severally. The statement of claim was subsequently amended with the leave of the Court. In the amended statement of claim, which can be located at pages 65 – 69 of the record of appeal, the claimant claimed the following reliefs:
“a. A declaration that the defendants is (sic) liable to comply with the terms and conditions of the agreement dated 23rd day of October, 2009 they entered into with the claimant.
b. An order of this Honourable Court mandating the defendants to pay to the claimant the sum of N3,180,000 (Three Million, One Hundred and Eight Thousand Naira) which they borrowed from the claimant and the 2nd defendant also guaranteed same personally;
c. An order of this Honourable Court mandating the defendants to pay to the claimant the sum of $16,820 (Sixteen Thousand Eight Hundred and Twenty Dollars) which the 1st defendant borrowed from the claimant and guaranteed by the 2nd defendant;
d. An order of this Honourable Court compelling the defendants to pay to the claimant 30% interest of the total sum they borrowed from the claimant in accordance with the terms of the agreement they entered into with the claimant;
e. An order compelling the defendants to pay to the claimant 10% per judgment interest and 15% after judgment interest per month till repayment of the total sum due to the claimant and the 2nd defendant also guaranteed to repay same personally in the event that the 1st defendant is unable to pay the loan;
f. An order of this Honourable Court compelling the defendants to pay to the claimant the additional N200,000.00 (Two Hundred Thousand Naira Only) the claimant borrowed to the defendants not captured in the agreement of 23rd October, 2009 entered into by the parties.
g. General damages of N30,000,000.00 (Thirty Million Naira Only).”

The claims of the claimant were denied by the 1st defendant who pursuant thereto filed a statement of defence for both defendants. The statement of defence was subsequently amended with leave of the Court. The amended joint statement of defence is found at pages 109 – 113 of the record of appeal. The claimant responded by filing an amended reply to the statement of defence. This can be sighted at pages 70 – 73 of the record of appeal. The matter after the exchange of pleadings went to trial which was capped with exchange of written addresses by counsel. The written addresses were duly adopted. In his judgment, the learned trial judge gave judgment for the claimant in the following terms:
“In the light of the above findings, it is my opinion that the claimant has sufficiently proved his case on the preponderance of probabilities, and it is hereby accordingly ordered as follows:
(i) That the defendants are liable to comply with the terms and conditions of the agreement dated 23rd day of October, 2009 they entered into with the claimant.
(ii) That the defendants pay to the claimant the sum of N3,180,000.00 (Three Million One Hundred and Eighty Thousand Naira) which they borrowed from the claimant and the 2nd defendant also guaranteed same personally.
(iii) That the defendants pay to the claimant the sum of $16,820 Dollars (Sixteen Thousand Eight Hundred and Twenty Dollars) which the 1st defendant borrowed from the claimant and guaranteed by the 2nd defendant.
(iv) That the defendants shall pay the said judgment sum as stated in paragraphs (ii) and (iii) above to the claimant within one month from the date of this judgment, failure shall attract 15% post-judgment interest per annum till the repayment of the total sum.
The costs for this action is hereby assessed at N50,000 (Fifty Thousand Naira) in favour of the Defendants.”

The instant appeal is an expression of the defendants’ dissatisfaction with the judgment. The notice of appeal was filed on 31/12/18. With leave of this Court sought and obtained, the notice of appeal was amended. The amended notice of appeal was filed on 4/10/21, and deemed properly filed and served on 5/10/21. The amended notice of appeal contains seven (7) grounds of appeal. The record of appeal was compiled and transmitted on 20/7/19, and deemed duly compiled and transmitted on 5/10/21. The appellants’ brief of argument settled by S. O. Atoe, Esq., was filed on 25/10/21, while the respondent’s brief of argument was filed on 18/01/22, and deemed filed on 07/3/22. It was settled by J. I. Odibeli, Esq. The appellant filed his reply brief on 18/01/22 and it was deemed filed on 07/3/22.

When this appeal came up for hearing on 15/06/22, the appellants were represented by S. O. Atoe while J. I. Odibeli represented the respondent. They adopted their respective briefs of argument. In the appellants’ brief of argument, three (3) issues were formulated for the determination of this appeal. The following are the issues:
“(i) Whether the judgment of the lower Court is justified when the respondent could not prove any breach of Exhibit “A” by the appellants which would have given the respondent a cause of action. (Grounds A & G).
(ii) Whether the judgment of the lower Court does not amount to approbating and reprobating when the lower Court after finding that Exhibit “A” was neither strictly a Loan Agreement nor a Joint Venture Agreement, went on to conclude that it was a loan agreement. (Grounds B & C).
(iii) Whether the judgment of the lower Court is supportable by evidence when the terms on repayment contained in Exhibit “A” were very clear and unambiguous and whether the judgment of the lower Court does not amount to importing extraneous words into the agreement. (Grounds D, E & F).”

SUBMISSION OF COUNSEL ON ISSUES 1 AND 3
Issues 1 and 3 were argued together.
(i) Whether the judgment of the lower Court is justified when the respondent could not prove any breach of Exhibit “A” by the appellants which would have given the respondent a cause of action.
(iii) Whether the judgment of the lower Court is supportable by evidence when the terms on repayment contained in Exhibit “A” were very clear and unambiguous and whether the judgment of the lower Court does not amount to importing extraneous words into the agreement.

The totality of the submissions of counsel under the two issues is that the agreement between them is upon the contingent of the respondent initiating contracts for the 1st appellant. That the respondent failed to initiate any contract as covenanted, and that the judgment of the trial Court would have been justified if after the respondent had initiated the Court for the 1st appellant and he was not reimbursed in terms of clauses (a) and (b). Counsel contended that what the trial Court did in its judgment amounted to rewriting the agreement of the parties to suit the respondent. Counsel cited several cases including Arjay Ltd. & Ors v. A.M.S. Ltd (2003) LPELR – 555 (SC), (2003) 7 NWLR (Pt. 820) 577. Counsel also cited the case of Beaumont Resources Ltd. & Anor v. DWC Drilling Co. Ltd. (2017) LPELR – 42814 (CA) where it was held that in the absence of fraud, misrepresentation and illegality, parties to an agreement or contract are bound by the terms and conditions of the contract they signed. Citing the case of Abubakar v. B. O. & A. P. Ltd (2007) 8 NWLR (Pt. 1066) 319, 361 paras A – B, learned counsel submitted three ingredients combine together to give a party a cause of action. The three, counsel pointed out are:
(a) Wrongful act of a party (i.e. the party sued).
(b) Injury to the plaintiff/claimant; and
(c) Available remedy to the aggrieved party.

Counsel proceeded to argue that the respondent failed woefully to prove any wrongful act of the appellants at the trial. That the trial Court itself found that the appellants did not breach the terms of Exhibit “A” and refers to page 213 of the record of appeal. The interpretation of the agreement (Exhibit “A”) was faulted by appellants’ counsel as he submitted citing Vincent Standard Steel Industries Ltd. & Anor. v. Lead Bank Ltd & Ors (2009) LPELR – 8214 (CA), where it was pointed out that the duty of a Court is to strictly interpret the terms of the agreement on its clear wordings without any room for any decorative interpretation in doing so. Also cited is the case of Olarenwaju Commercial Services Ltd v. Sogaolu & Anor (2014) LPELR – 24086 (CA).

It was further submitted that the judgment of the trial Court is speculative, and that there is no place for conjectures and sentiments in law. On this submission, counsel relied on the case of Amaechi v. INEC & Ors (2007) LPELR – 8253 (CA) pages 40 – 41 paras C – C.

Counsel therefore urged the Court to resolve issues 1 and 3 in favour of the appellants.

ISSUE TWO
Whether the judgment of the lower Court does not amount to approbating and reprobating when the lower Court after finding that Exhibit “A” was neither strictly a Loan Agreement nor a Joint Venture Agreement, went on to conclude that it was a loan agreement.

On issue two, counsel accused the learned trial Judge of approbating and reprobating when he held at page 211 of the record of appeal that from the wordings in Exhibit “A”, it cannot be strictly regarded as loan agreement as submitted by counsel for the claimant or strictly as a Joint Venture Agreement as argued by learned defendants’ counsel. That a Court of law is not permitted to approbate and reprobate. He relied on – Saror & Anor v. Suswam & Ors (2012) LPELR – 8611 (CA) p. 63 paras B – E, Nwoga v. Benjamin & Ors (2009) LPELR – 4651 (CA).

Counsel further submitted that the conclusion reached by the learned trial Judge is perverse, and that Exhibit “A” which is clear and unambiguous did not require the importation of extraneous words for its interpretation. It was also counsel’s submission that Exhibit “A” is not a loan agreement. Counsel urged the Court to resolve that the statement of the learned trial judge amounted to approbating and reprobating, and that it is not permitted in law.

The respondent formulated five (5) issues for determination in his brief of argument. The issues are:
“1. Whether the learned trial judge was right to have held that the respondent’s case discloses a cause of action. (Ground “A”).
2. Whether the learned trial judge was right to have held that the loan given to the appellants by the respondent was not to be in perpetuity. (Ground B).
3. Whether the learned trial judge correctly stated the case as made out by the appellants at the trial Court. (Ground C).
4. Whether the learned trial judge was right when in interpreting paragraphs (a) & (b) of Exhibit “A”, the agreement between the appellants and respondent, he held that the respondent is entitled to the repayment of the money he loaned to the appellants. (Grounds D, E & F).
5. Whether the learned trial judge was right when he held that the appellants are liable to comply with the terms of Exhibit “A” the agreement between the respondents and the appellant. (Ground G).”

The appellants in their reply brief stridently called on this Court to discountenance the respondent’s brief, contending that in law a respondent who did not file a cross-appeal or respondent’s notice is not permitted to frame more issues than the appellant. Several cases were cited. They include – Anyanwu v. Eze & Ors (2019) LPELR – 48740 (SC) Pp. 6 – 7 paras E – A, Eneyo v. NSA & Anor. (2011) LPELR – 4113 (CA) Pp. 15 paras C – E, Ecobank v. Admiral Environmental Care Ltd. & Ors. (2021) LPELR – 56130 (CA) pp. 9 – 10 paras E – C.

Indeed, that is the law. The doctrine of stare decisis dictates upon this Court a duty, an inescapable one at that to follow it unless there are distinguishing factors that can impel a departure. It seems to me that there are such features in this appeal. In the formulation of their issues for determination, the appellants drew them from all the 7 grounds of appeal; Issue one is from grounds A and G, Issue two is from grounds B and C, and Issue three from grounds D, E & F. None of the 7 grounds as can be seen was abandoned. Even though the respondent formulated 5 issues (2 issues more than the appellants) all of them were distilled from the appellants’ 7 grounds of appeal. In other words, all the 5 issues oscillate within the appellants’ 7 grounds of appeal. If the appellants had abandoned any of their grounds of appeal, the fear would then have been that the respondent in formulating more issues than the Appellant had flouted the rule or principle against proliferation of issues which forbids a party from framing more than an issue from one ground of appeal even though an issue can be formulated from one or several grounds of appeal. In this appeal, since the five issues are the same issues argued by the appellants in their brief, and were distilled from the appellants’ grounds of appeal it will be taking technicality too far to discountenance the respondent’s issues.
In the case Musaconi Ltd v. Aspinall (2013) 14 NWLR (Pt.1375) p. 435, (2013) LPELR – 20745 (SC) pp. 7 – 8 paras E – B, Ariwoola, JSC (as he then was) held:
“Since the respondent in an appeal is entitled to formulate issues for determination of an appeal and couch same in its own words, as long as the said issues so formulated and differently couched from the issues distilled by the appellant are traceable to and formulated from the grounds of appeal filed by the appellant, the Appellate Court can rely on the respondent’s issues to determine the appeal, if they are more succinct and precise than that of the appellant.” What is however curious to me is that of the respondent’s five issues, only issue one was separately argued, all the other four – 2, 3, 4 and 5 were argued together. All these could have conveniently been covered under one broad issue, and that would have saved this Court this needless intervention.

It is settled law that every authority must be applied within the context of the peculiar facts in the case. An authority should never be applied at large. See the case of Ogbeshe v. Idam (2013) LPELR – 20330 (CA) p. 15 paras D – G, Nigeria Custom Service Board v. Echy (Nig) Ltd. (2017) LPELR – 42891 (CA) pp. 24 – 25 paras C – A, Aizeboje v. EFCC (2017) LPELR – 42894 (CA) pp. 20 – 21 paras D – B.
It is therefore my firm view that the cases cited by appellants’ counsel are distinguishable from the facts in this appeal and are therefore not applicable. This therefore launches me into a summation of the submission of respondent’s five issues in the line he argued them.

ISSUE ONE
Whether the learned trial judge was right to have held that the respondent’s case discloses a cause of action. It was submitted by respondents’ counsel that the appellants’ contention that the respondent’s case at the lower Court did not disclose a cause of action is totally misconceived and should be discountenanced. Counsel cited several cases in which the scope and definition of cause of action was explained, and submitted that from those authorities, the respondent’s case disclosed a cause of action. Counsel referred the Court to the statement of claim inclusive the reliefs claimed by the respondent. He pointed out that upon the refusal of the appellants to repay the loan given to them which was well captured by Exhibit “A”, the respondent caused a letter of demand to be written to them in which he made a formal demand for repayment of the loan consequent upon its failure. It was further contended for the respondent that whether a case discloses a cause of action or not can only be determined from the claim of the plaintiff. Counsel pointed out that the respondent in his amended statement of claim averred that he lent money to the 1st appellant, which the 2nd appellant guaranteed. That upon the appellants’ refusal to pay back he made a formal demand for repayment which was not heeded, hence his resort to the Court for the enforcement of the loan agreement. He thus submitted that the respondent’s case disclosed a cause of action, and therefore aligned himself with the findings of the learned trial judge at pages 204 – 205 of the record of appeal.

The Court was therefore urged to resolve issue one in favour of the respondent.

ISSUES 2, 3, 4 AND 5
2. Whether the learned trial judge was right to have held that the loan given to the appellants by the respondent was not to be in perpetuity.
3. Whether the learned trial judge correctly stated the case as made out by the appellants at the trial Court.
4. Whether the learned trial judge was right when in interpreting paragraphs (a) & (b) of Exhibit “A”, the agreement between the appellants and respondent, he held that the respondent is entitled to the repayment of the money he loaned to the appellants.
5. Whether the learned trial judge was right when he held that the appellants are liable to comply with the terms of Exhibit “A” the agreement between the respondents and the appellant.

Counsel on these issues submitted that the learned trial judge correctly captured the case of the parties in coming to the infallible findings that the respondent proved his case and that the appellants are liable to comply with the terms of Exhibit “A” by paying back to the respondent what he lent to them. Counsel submitted that the appellants cannot be heard to be saying that the respondent did not loan money to them and at the same time saying that their obligation to pay back can only arise if the respondent fulfils the conditions stated in paragraphs (a) and (b) of Exhibit “A”.

This, counsel submitted amounts to double speak, and not tenable in law. On this, counsel relied on the case of Oliyide & Sons Ltd v. OAU Ife (2018) LPELR – 43711 and the case of Okoye v. Dumebi (2014) LPELR – 24155 (CA).

It was further submitted for the respondent that in civil cases of the nature in the instant case, proof is on the preponderance of evidence or balance of probabilities. Counsel pointed out that Exhibit “A” defines the rights and obligations of the parties. In paragraph 4.11 of the respondent’s brief of argument, counsel itemized the undisputed facts embodied in Exhibit “A”. Counsel then went on to submit that the 2nd appellant during cross-examination admitted signing Exhibit “A”, and submitted that having tendered the said Exhibit “A” which the 2nd appellant admitted signing, the respondent had established that he lent money to the appellants. Counsel further contended that it is clear from the express provisions of the agreement that the money borrowed was not to be in perpetuity, neither was it intended from the wordings of Exhibit “A” that the appellants will not pay back the loan to the respondent. Counsel submitted that where the intention of the parties to a contract has been expressed in a document those intentions must be given effect by the Court because the parties are bound by the terms of contract they enter into. Counsel therefore leaned his voice to the holding of the lower Court at pages 212 to 214 of the record of appeal, submitting that the findings therein is unassailable and urged the Court to affirm same. Counsel was in sharp disagreement with learned counsel for the appellants in his submission that by his findings, the learned trial judge attempted to rewrite the agreement between the parties by importing extraneous terms into it. Counsels submission is that the findings is tandem with the terms contained in Exhibit “A”. Counsel did not also accept the insinuation by the appellants’ counsel that the learned trial Judge by his holding on page 811 of the record of appeal approbated and reprobated. That the learned trial judge only stated the positions taken by the counsel to both parties as to what Exhibit “A” meant to them.

Concluding, counsel submitted that the findings of the learned trial judge is sound, unassailable and clearly arose from the contents of Exhibit “A”. He urged the Court to resolve issues 2, 3, 4 and 5 in favour of the respondent and in the result dismiss the appeal.

The issues in this appeal are simple and straight forward to me. Therefore, the appeal to my mind can be determined on the following issues:
(i) Whether there was a loan/joint venture agreement between the 1st appellant and the respondent, and whether same was guaranteed by the 2nd appellant.
(ii) Whether the respondent’s case disclosed a cause of action, and if so, whether same was proved to entitle the respondent to the judgment of the Court as given at the lower Court.

The issues are interwoven and will therefore be considered together. The first question I may want to attempt to answer is, whether between the appellants and the respondent, there was an agreement at all, and if this is answered in the affirmative, what necessarily follows in view of the pleadings and evidence led by the parties is, whether the agreement was a loan agreement or a joint venture agreement or both, that is joint venture/loan agreement.

Agreement generally is made when one party accepts an offer made by the other. It must be certain and final. Agreement can be signified through writing depending on the circumstances in which the contracting parties find themselves. Where it is expressly in writing, the general rule is that the Court will not look beyond that writing to determine what its express terms are. Where the contract/agreement is made orally, the ascertainment of its terms is a pure question of fact: – A. G. Rivers State v. A. G. Akwa Ibom State & Anor (2011) LPELR – 633 (SC) Pp. 118 – 119 paras E – A. See also, UBA Plc v. Wadof Software Consulting Limited (2017) LPELR – 50251 (CA) pp. 40 – 42 paras F – C, Akpan v. Ubong (2013) LPELR – 20418 (CA) pp. 53 – 54 para B.

As between the appellants and the respondent, there was an agreement which was embodied in Exhibit “A”. This fact was firmly sealed when the 2nd appellant under cross-examination stated:
“It is true that I signed a certain document but as a guarantor of the loan to the defendant and the claimant did not spend $6000 at any time. I see Exhibit “A” now shown to me. It is true that I signed Exhibit “A”
See page 151 of the record of appeal.

And as to whether Exhibit “A” is a loan agreement or otherwise, the 2nd appellant who is the natural person represented the appellants in this transaction said it all in the aforesaid evidence of his under cross-examination in which he did not only say that Exhibit “A” is a loan agreement but affirmed his status in the agreement as a guarantor of the loan given to the 1st appellant.

The question whether this agreement was breached or not necessarily takes me to the issue raised by the appellant as to whether the respondent’s case at the lower Court disclosed a cause of action.

A cause of action as defined in Strouds judicial Dictionary is the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or combination of facts which gives rise to a right to sue and it consists of two elements- the wrongful act of the defendant which gives the plaintiff his cause of action and the consequent damage. In the case of Yusuf & Ors v. Akindipe & Ors. (2000) LPELR – 3532 (SC), a reasonable cause of action was defined thus:
“A reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleading statement of claim are considered. So long as the statement of claim discloses some cause of action, or raises some question fit to be decided by a judge as in this case. The mere fact that the case is weak, and not likely to succeed, is no ground for striking it out or dismissing it. See Wenlock v. Moloney (I965) 2 All ER. 871.” Per OGWUEGBU, JSC (P. 13, paras. D-E) And as to how a Court may properly determine the question, whether there arises a cause of action in any given case, the apex Court held thus in the case of Abubakar v. Bebeji Oil and Allied Products Ltd & Ors (2007) LPELR – 55(SC):
“It is a cardinal principle of law that to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons and the averments in the statement of claim. For it is by examining them that a Court can satisfy itself on the actual grouse of a party and the remedy or relief it is seeking from the Court. After determining the cause of action then by the very averments, the Court can discern the time that a cause of action arose. See Alhaji Usman Dantata v. Mouktar Mohammed (2000) 7 NWLR (Pt. 664) page 176, Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) page 1 andAkibu v. Oduntan (2000) 13 NWLR (Pt. 685) page 446.”
Per MUKHTAR, JSC (Pp. 35-36, paras. F-B)
I refer also to the following cases: Ayanboye & Ors v. Balogun (1990) LPELR – 668 (SC) p. 18 paras C-E, Dada & Ors v. Ogunsanya & Anor (1992) LPELR – 908 (SC) p. 12 paras E – G, Ogbimi v. Ololo & Ors (1993) LPELR – 2280 (SC) p. 12 paras B – C; Sifax (Nig.) Ltd. & Ors v. Migfo (Nig.) Ltd & Anor (2018) LPELR – 49735 (SC) p. 38 paras B – E, Frozen Foods (Nig.) Ltd & Ors. v. Estate of Oba John Agbola Ojomo & Ors. (2022) LPELR – 57815 (SC) pp. 51 – 52 paras C – D.

Now, what are the relevant facts in support of the respondent’s case?

His case as can be gleaned from his amended statement of claim is that he and the appellants entered into a loan agreement with a view that with good and eventual performance of the terms of the agreement which he would promote, he too would make out some profits while the loan was being repaid. What they hoped for under their agreement (Exhibit “A”) did not materialize due to no fault of his or the appellants. However, in his belief, the appellants who despite the non-performance of the contract was making money out of the money loaned out to them refused to give anything to him. He therefore caused his solicitors to send a letter to the appellants to demand the refund of his money plus interests. There was no response from the appellants hence his recourse to Court action. The defence of the appellants is that because the respondent was not able to initiate any contract which was awarded to the appellants in accordance with clauses (a) and (b) in Exhibit “A”, he could not be entitled to any claim. If the appellants had stopped there, I would have found nothing wrong with that argument because it would be a concession by the appellants that the respondent had a cause of action but it was not proved. This is because its not in all cases where there is a cause of action that the claimant would succeed. Success depends on proof. One may well have a reasonable cause of action but fail in its proof.

But in this appeal, the appellants seemed to put the issue of whether or not the respondents has a cause of action to the front burner when he relied on the case of Abubakar v. B.O. & A.P. Ltd (supra), and identified the ingredients of a cause of action and submitted that in this instance where the non-fulfilment of the condition in paragraphs (a) and (b) was not as a result of breach on the part of the defendants, there was no cause of action. Counsel here misconceived the disclosure of a cause of action with proof of that cause of action.

Let me relate this to one of the issues argued by the appellants which they made issue two in their brief, which is, that the learned trial judge approbated and reprobated when he said that from the wordings in Exhibit “A”, it cannot be strictly regarded as loan agreement as submitted by learned counsel for the claimant or strictly as a joint venture agreement as argued by learned defendants’ counsel. What the learned trial judge said was a restatement of what both counsel respectively put forward based on their views of Exhibit “A”. The learned trial judge did not stop there. Proceeding, he stated:
“The wordings must be read in their ordinary meaning and applied together, the parties cannot pick and choose which to accept or apply in determining their obligation under the agreement. It is clear that the claimant under Exhibit “A” was to act in dual capacity as a financier and secondly as a lender, because the use of the two words side by side cannot be said that the parties strictly intend one against the other. It therefore follows that the word “lender” clearly shows that the money lent to the 1st defendant was strictly or solely for the business of the defendant which also agrees with the ordinary meaning of a financier. This intention of the parties was also clearly stated in Exhibit “A”.

Clearly, there is no approbating and reprobating by the learned trial Judge. I had earlier referred to the evidence of the 2nd respondent who as 2nd defendant under cross-examination admitted that Exhibit “A” is a loan agreement in favour of the 1st appellant for which he acted as guarantor.

Now in determining whether there is a cause of action, as shown by established principles of law, it is the claimant’s statement of claim only that holds sway. As can be seen the respondent’s amended statement leans on Exhibit “A” as its pillars. And when the averments in the amended statement of claim are considered in the light of Exhibit “A”, it cannot be disputed that the respondent’s suit disclosed a reasonable cause of action.

The mountain that stares the respondent in the face to climb is proof of his claims. The appellants and the respondents are on common ground that Exhibit “A” could not be consummated due to no fault of either of them. The contract collapsed because the proposed electronic surveillance for Abuja, Federal Capital Pilot Scheme (Exhibit “G”) which the appellants had hoped to secure from the Inspector General of Police could not work out.

At this juncture, it is important to take a second look at the terms of the agreement. The understated part of the agreement is relevant:
“In consideration of the sum of N3,180,000 (three million, one hundred and eighty thousand naira) and $16,820 (sixteen thousand eight hundred and twenty dollars) lent or advanced to the company by the financier/lender for financing solely the business of the company as interest free loan (the receipt of which sum the company hereby acknowledges and the payment to the company of which sum the surety hereby acknowledges), the company and surety hereby jointly and severally covenant with the financier/lender to repay the sum in the following manner:
a. The financier/lender shall be entitled to 30% of the proceeds from Tempair Global Services Limited on all transactions initiated by the financier.
b. The financier/lender shall be entitled to 10% of every contract sum awarded to the Tempair Global Services Limited initiated by the financier.
In the event of the company and the surety failing to repay the loan in accordance with paragraphs (a) and (b) supra, the principal or the whole sum lent or advanced to the company shall become due and payable with 30% interest from the date of this agreement or breach whichever is earlier without any or further demand or notice in that behalf.
The company hereby covenants that it will not for any reason whatsoever divert the loan for any other purpose other than for the business of Tempair Service Limited.”

The question this Court has to answer is whether on these terms, and having regard to the failure of the contract, the respondent could be entitled to the claims in his amended statement of claim upon which the lower Court entered judgment as shown on page 215 – 216 of the record of appeal. In arriving at a decision on this, the Court must be guided by the principle of law that is applicable in situation as obtained in this case, in which there was a duly entered agreement under which consideration passed but which execution/performance failed.

The law is settled that where a party has paid money to another person for a consideration that has failed, the sum of money had and received must be refunded. See Muhmmad & Anor v. Maglodan (Nig) Ltd (2017) LPELR – 43191 (CA) P. 41 paras. D – F. See also the following:
Akinade v. Nigeria Law School Lagos Campus Staff Co-operative Thrift and Credit Society Ltd. (2015) LPELR – 41705 (SC) P. 16 Paras A – B, Akale v. Omale (2017) LPELR – 43336 (CA) PP. 21 – 22 Paras G – C.

At pages 213 – 214 of the record of appeal, the learned trial Judge made the following findings:
“Exhibit “A” further shows that in the event that the Defendant is not able to pay back the loan as stipulated in paragraphs (a) & (b) that is, in the event where paragraphs (a) & (b) cannot be performed as shown in the evidence before the Court, the whole sum or the principal sum will become due and payable by the Defendant. But if in the event paragraphs (a) and (b) has been performed and the defendants fail to fulfil the conditions in paragraphs (a) & (b) in Exhibit “A”, then the whole sum or the principal will then become due and payable to the claimant and for the breach, Exhibit A provides, that it will attract 30% interest on the principal sum. But in this instance where the condition in paragraphs (a) & (b) was not as a result of breach on the part of the defendants, the claimant will only be entitled to the principal sum. More so Exhibit “A” has clearly described the loan agreement as interest free loan.”

The above findings are in tandem with the established principle of law earlier stated applicable in a situation where a party has parted with money under a contract that has failed.

However, in what appears to me to be a somersault of some sort, the learned trial Judge decided to swim in the ocean of conjecture when he held at page 214 of the record of appeal:
“If the defendants have been doing business with the loan advanced to them by the claimant, he cannot now say that because the claimant has to initiate contract for the 1st defendant and that until he does so, he will not be entitled to his money which the defendant have been using for the business of the company. The terms of the agreement in Exhibit A, is very clear, when the defendant is unable to repay the loan in line with the provision in paragraphs (a) & (b), the principal sum will become due on demand. This the claimant has shown in Exhibit C.”
As submitted by the appellants’ counsel there is no place for conjectures and sentiments in law. The learned trial Judge erred and grossly too in this finding. See Abalaka v. Minister of Health & Ors (2005) LPELR – 5572 (CA) P. 27 Paras. C – F, Okadigbo & Ors. v. Ojechi & Ors (2011) LPELR – 4687 (CA) P. 59 paras. D – F, Tanko v. Nongha (2005) LPELR – 11405 (CA) PP. 16 – 17 Paras C – D, Ibrahim v. COP (2007) LPELR – 3747 (CA) Paras A – B.

In this appeal, the parties are ad idem that even though the consideration under the contract passed, there was a frustration of the contract and as a result, it could not be consummated. In other words, there was no breach of same by any of the parties. What the respondent was therefore entitled to is recovery of the money he paid to the appellants under the contract, no more, no less.

This therefore brings the appeal to a partial success and partial failure.

In consequence of the above, I set aside order (i) made in the judgment of the learned trial Judge. Orders (ii) and (iii) are hereby affirmed. Order (iv) is also affirmed with modification as follows:
The respondent shall be entitled to 15% post-judgment interest per annum till liquidation of the Judgment sum in (ii) and (iii).
Parties to bear their respective costs for this appeal.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the preview of the lead judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with his reasoning and conclusion reached in the issues treated therein. I also hold that the appeal succeeds in part as stated in the lead judgment in this appeal, against the judgment of the Edo State High Court in Suit No: B/183/2015 delivered by M. O. Ighodalo, on 19th December, 2018.

I abide by the order made as to costs.

ADEMOLA ​SAMUEL BOLA, J.C.A.: I am privileged to have read in advance and in draft the judgment of my brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with his reason and conclusion. I adopt them as mine.

I abide by the conclusions reached and the consequential orders made. Parties to bear their respective costs.

Appearances:

S. O. Atoe For Appellant(s)

J. I. Odibeli, with him, Rhoda Ododiran, and Angela Isiakpobegie For Respondent(s)