(2019) LPELR-46442(CA) - lawpavilionpersonal.comlawpavilionpersonal.com/ipad/books/46442.pdf · 616...
Transcript of (2019) LPELR-46442(CA) - lawpavilionpersonal.comlawpavilionpersonal.com/ipad/books/46442.pdf · 616...
BONUM (NIG) LTD v. IBE & ANOR
CITATION: (2019) LPELR-46442(CA)
In the Court of AppealIn the Lagos Judicial Division
Holden at Lagos
ON WEDNESDAY, 6TH FEBRUARY, 2019Suit No: CA/L/1445A/2016
Before Their Lordships:
UGOCHUKWU ANTHONY OGAKWU Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of AppealTOBI EBIOWEI Justice, Court of Appeal
BetweenBONUM NIGERIA LIMITED-CROSS APPELLANT - Appellant(s)
And1. CHRIS BAYWOOD IBE(Doing business under the name and style ofBaywood Dextron Ventures)2. BAYWOOD CONTINENTAL LIMITED-CROSS RESPONDENTS
- Respondent(s)
RATIO DECIDENDI
(201
9) LP
ELR-46
442(
CA)
1. CONTRACT - CONSENSUS AD IDEM: Whether parties must be in consensus ad idem in order to be bound by a contractualagreement<span style="font-size: 12px;">"The hornbook principle of law is that in order for parties to be bound by their agreement, theymust be ad idem as its terms. See A-G RIVERS STATE vs. A-G AKWA IBOM STATE (2011) LPELR (633) 1 at 23-24 and BILANTEINTERNATIONAL LIMITED vs. NDIC (2011) LPELR (781) 1 at 23-24. It is not confuted that the parties were ad idem on thepayment of 1% as consultancy fees at the time of their contract in Exhibit CW1.1. The pertinent question is whether the partiesarrived at a similar consensus on the upward review of the consultancy fees to 2.87%, consequent upon the extension andrevision of the scope of work under the consultancy. The Cross Appellant contends that the Cross Respondents accepted thereview and relies, inter alia, on the conduct of the Cross Respondents in making payment on the invoice which was based on2.87% and also on Exhibit CW3 J. Now, in Exhibit CW3 J, the Cross Respondents while agreeing in principle on review requestedthe Cross Appellant to send the proposal for review and further discussion. This clearly shows that the parties had not reachedany consensus on the review as the same was to be subjected to further discussion. Undoubtedly, the upward review of theconsultancy fees to 2.87% remained inchoate. The Cross Appellant had rendered services under the consultancy agreement forwhich it was entitled to payment. The Cross Appellant raised its invoice for payment, albeit, predicated on 2.87% as consultancyfees. The Cross Respondents made some payment on the invoice. It is beyond disputation that a workman is entitled to hiswages; therefore the fact that some payment was made on the invoice does not connote an acceptance of 2.87% as the feesdue to the Cross Appellant. It could only have been so inferred if the payment made was in excess of the agreed 1% that theCross Appellant was entitled to as consultancy fees. This has not been shown to be so. I am therefore unable to agree with theCross Appellant that the conduct of the Cross Respondents in making some of the payment due on the contract amounted toacceptance of 2.87% as the fees, for which they were estopped by the doctrine of estoppel from asserting the contrary. It is afundamental principle of law that parties are bound by the terms of their contract and it is not open to one of the parties in theabsence of novation to unilaterally change or vary the terms of the contract by incorporating into it one or more terms that hadnot been agreed upon by both parties: MAIDARA vs. HALILU (2000) LPELR (10695) 1 at 19, GAMBAGA s. MBIU (2014) LPELR(41079) 1 at 17 and ISIYAKU vs. ZWINGIWA (2001) FWLR (PT. 72) 2096. Any variation of the agreed terms has to be by mutualconsent and there must be offer and acceptance of the variation for the required consensus ad idem to be present. SeeEKWUNIFE vs. WAYNE W. A. LTD (1989) LPELR (1104) 1 at 13 and UNITY BANK vs. OLATUNJI (2014) LPELR (24027) 1 at 47-48.The evidence on record does not bear out the meeting of the minds of the parties and their consensus on the extension andrevision of the scope of work and the upward review of the percentage payable to the Cross Appellant as consultancy fees. Theparties did not have a concluded bargain in that regard and so there was no binding contract for the payment of 2.87% asconsultancy fees to the Cross Appellant. See ATIBA IYALAMU SAVINGS & LOANS LTD vs. SUBERU (2018) 13 NWLR (PT.1637) 387 at 404."</span>Per OGAKWU, J.C.A. (Pp. 51-54, Paras. E-D) - read in context
2. EVIDENCE - PRESUMPTION OF FACTS: Principles of law as it relates to presumption of facts<span style="font-size: 12px;">"By Section 145 (1) of the Evidence Act, whenever it is provided that the Court may presume afact, the Court may either regard such fact as proved unless and until it is disproved or it may call for proof of it. Section 167 ofthe Evidence Act stipulates that the Court may presume the existence of any fact which it deems likely to have happened,regard being had to the common course of natural events, human conduct and public and private business in their relationshipto the facts of a particular case."</span>Per OGAKWU, J.C.A. (P. 33, Paras. C-E) - read in context
3. EVIDENCE - WRONGFUL ADMISSION/REJECTION OF EVIDENCE: Whether a wrongfully admitted/excluded evidence couldconstitute a ground for reversing a decision on appeal<span style="font-size: 12px;">"The law is that wrongful admission of evidence shall not of itself be a ground for the reversal ofa decision where it appears on appeal that such evidence cannot reasonably be held to have affected the decision and that thedecision would have been the same if such evidence had not been admitted. See EZEOKE vs. NWAGBO (1988) 1 NWLR (PT. 72)616 at 630, OJENGBEDE vs. ESAN (2001) 18 NWLR (PT. 746) 791 and MONIER CONSTRUCTION CO LTD vs. AZUBUIKE (1990) 3NWLR (PT. 136) 74 at 88. So even if Exhibit CW1.11 was not admissible by virtue of the stipulations of Section 83 (3) of theEvidence Act, the wrongful admission of the same, eo ipso, cannot form the basis for overturning the decision of the lower Courtwhere it transpires that the Cross Appellant did not prove its case on the percentage of consultancy fees payable to it. Section251 (1) of the Evidence Act provides as follows: "The wrongful admission of evidence shall not of itself be a ground for thereversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably beheld to have affected the decision and that such decision would have been the same if such evidence had not been admitted."So the question is whether without Exhibit CW1.11, the judgment of the lower Court would have been different. Where it will notmake any difference to the decision reached, then the wrongful admission shall not be a basis on which to reverse the decisionof the lower Court: YASSIN vs. BARCLAYS BANK DCO (1968) LPELR (25440) 1 at 14-15, OKONJI vs. NJOKANMA (1999) LPELR(2477) 1 at 46 and ALLI vs. ALESHINLOYE (2000) LPELR (427) 1 at 51-52."</span>Per OGAKWU, J.C.A. (Pp. 47-49, Paras. E-A) -read in context
(201
9) LP
ELR-46
442(
CA)
4. JUDGMENT AND ORDER - AWARD OF COST: Principles of law as regards award of cost<span style="font-size: 12px;">"...The disceptation under this issue is with regard to the costs awarded in favour of the CrossRespondents by the lower Court. Let me restate that there was a claim and counterclaim before the lower Court and the partiesregistered relative successes in their respective claim and counterclaim. So the parties all succeeded in their action. However, inexercising discretion to award costs, the lower Court only awarded costs in favour of the successful Cross Respondents; no costswere awarded in favour of the equally successful Cross Appellant. Now, in these circumstances, was the cost awarded in favourof the Cross Respondent a proper exercise of judicial discretion? The position of the law is that costs follow event and asuccessful party should not be deprived of his costs unless for good reasons. See SAEBY vs. OLAOGUN (1999) 10-12 SC 45 at 59.In AKINBOBOLA vs. PLISSON FISKO NIGERIA LTD (1991) 1 NWLR (PT. 167) 270, Kawu, JSC stated: "The award of costs is ofcourse, always at the discretion of the Court which discretion must be exercised both judicially and judiciously... It is also a well-established principle that costs follow events and that a successful party is entitled to cost unless there are special reasons fordepriving him of his entitlement..." The essence of costs is to compensate the successful party for part of the losses incurred inthe litigation. Costs cannot cure all the financial losses sustained in the litigation. It is also not meant to be a bonus to thesuccessful party, and it is not to be awarded on sentiments. The award of costs being a matter within the discretion of the trialCourt, an appellate Court will not normally interfere in the exercise of discretion by the trial Court in awarding costs exceptwhere it is shown not to have been exercised judicially and judiciously. The aim of the award of costs is to indemnify orcompensate the successful party for expenses incurred in the course of the litigation. Costs are however not meant to punishthe unsuccessful party. See OYEDEJI vs. AKINYELE (2001) FWLR (PT. 77) 970 at 1001, M. H. (NIGERIA) LIMITED vs. OKEFIANA(supra) and ERO vs. TINUBU (2012) LPELR (7869) 1. In GAMBARI vs. ILORI (2002) 14 NWLR (PT. 786) 78 at 103-104, Mohammed,JCA held as follows: "I shall however comment briefly on the complaint of the appellant on the N5000.00 costs awarded againsthim by the trial Court which the learned Counsel to the appellant described as improper and not supported by evidence orsubmission of Counsel relating to out of pocket expenses. Unquestionably, the award of costs by the Court to the successfulparty falls squarely within the discretionary domain of the Court, which discretion as the law requires, must be exercisedjudicially and judiciously particularly in the absence of any guidance in the various civil procedure rules of the High Courts ascontained in the Supreme Court Rules and the Court of Appeal Rules. While it is true that a successful litigant should not bedenied costs, it is firmly established that costs must follow the event but many a time circumstances and for good reasons, thedefeated party may not be damnified in costs... As a general principle therefore, it may be said that costs are in the discretion ofthe Court and for that reason, where the Court exercised its discretion judicially and judiciously as opposed to doing socapriciously or upon any wrong principle, an appellate Court is without power to interfere with such honest exercise of theCourt's discretion." Order 49 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012 referred to by the partiesstipulates as follows: "(1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to beindemnified for the expenses to which he has been necessarily put in the course of proceedings, as well as compensated for histime and effort in coming to Court. Such expenses shall include: (a) The cost of legal representation and assistance of thesuccessful party to the extent that the Judge determines that the amount of such cost is reasonable; (b) The travel and otherexpenses of parties and witnesses to the extent that the Judge determines that the amount of such expenses is reasonable, andsuch other expenses that the Judge determines ought to be recovered, having regard to the circumstances of the case. (2) Whencosts are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time ofdelivering the judgment or making the order. (3) When the Judge deems it to be impracticable to determine summarily theamount of any costs which he has adjudged or ordered to be paid, all questions relating thereto shall be referred by the Judge toa Taxing Officer for taxation." It is evident that the above provision deals with the principle to be observed by a Court in fixingcosts to be awarded to the parties. Going by the strict application of the provision, both parties having registered success in theaction, and therefore "in the right" were entitled to costs. The lower Court however exercised discretion by awarding costs to theCross Respondents only. So costs were awarded against the successful Cross Appellant. In other words, costs were not awardedin favour of the successful Cross Appellant. Put differently once again, costs were not awarded against the unsuccessful CrossRespondents upon the success of the Cross Appellant's counterclaim. The question is whether this was a judicial and judiciousexercise of discretion. At the risk of prolixity, there was a claim and a counterclaim before the lower Court. The claim andcounterclaim succeeded in part; so it was not a win-win for either party at the lower Court. The exercise of discretion is a libertyor privilege to decide and act in accordance with what is fair and equitable under the circumstances of the particular case,guided by the spirit and principles of law: THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING &SHIPPING LTD (2003) 9 MJSC 156 at 168. Like all judicial discretions, the discretion is exercised judicially and judiciously. Judicialin the sense that it must be for a reason connected with the case and judicious in the sense that it must be based on soundjudgment marked by discretion, wisdom and good sense. SeeERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs.KAREEM (2002) 34 WRN 1 at 8. In the diacritical circumstances of the manner in which the decision of the lower Court turned, inwhich neither party could be said to have wholly carried the day, it seems to me that the award of costs to the CrossRespondents against the Cross Appellant was not the exercise of discretion for a reason connected with the case. It was notbased on sound judgment, wisdom and good sense to have awarded costs in favour of only one of the successful parties againstan equally successful party. In a coda, it was not fair and equitable and it was a wrong exercise of judicial discretion. Anappellate Court will definitely interfere in the circumstances. The Cross Respondents had claimed the legal cost of the action asa specific relief. The lower Court considered the evidence adduced in that regard and was unable to grant the same. Contrary tothe contention of the Cross Respondents, the lower Court was right not to have relied on the evidence adduced in theunsuccessful proof of legal costs to arrive at the amount to award as costs of the action. The lower Court gave no reasons forawarding costs against the equally successful Cross Appellant; such cannot be allowed to stand. It is not a question of whetherthe amount awarded as costs is excessively high or not; rather it is that in the peculiar circumstances, the proper exercise ofdiscretion was that costs should not have been awarded. The parties having both succeeded ought to bear their respective costsof the litigation. Consequently, this Issue Number Two is resolved against the Cross Respondents. The costs awarded in favour ofthe Cross Respondents is hereby set aside."</span>Per OGAKWU, J.C.A. (Pp. 37-44, Paras. E-E) - read in context
(201
9) LP
ELR-46
442(
CA)
5. PRACTICE AND PROCEDURE - ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: Attitude of Courtsto academic/hypothetical issues or questions<span style="font-size: 12px;">"...The point I seem to be labouring to make is that the said issues which arise from the Rulingof 13th December, 2016 have become academic as no benefit can be conferred on the parties by any favourable resolution ofthe said issues. On the one hand the order for stay automatically abates upon the determination of this appeal and on the otherhand the judgment sum subject of the garnishee proceedings has been determined not to be the adjudged sum that the CrossAppellant can recover in the main appeal. The Courts exist for the determination of live issues not issues that are merely ofacademic interest and of no practical utilitarian value. In PLATEAU STATE vs. A-G FEDERATION (2006) 3 NWLR (PT. 967) 346 at419, Tobi, JSC stated: "A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian valueto the plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of humannature and humanity." See also EZEANYA vs. OKEKE (1995) 4 NWLR (PT. 388) 142 at 165 and GLOBAL TRANSPORT OCEANICOS.A vs. FREE ENTERPRISES (NIG) (2001) LPELR (1324) 1 at 19-20. I would therefore discountenance with the said issues whichare now academic."</span>Per OGAKWU, J.C.A. (Pp. 9-10, Paras. F-G) - read in context
6. TORT - LIBEL: What a defendant relying on a plea of justification in an action for libel must prove to succeed<span style="font-size: 12px;">"It is hornbook law that where the defence of justification is set up as in this case, the probativevalue on the claimant is lessened as the plea of justification implies an admission that the publication was made by thedefendant, but that the publication is true. The defendant then has the onus of proving the veracity of the publication. Where itis able to do so then it cannot be liable in damages since damages are awarded where the publication is false: OJUKWU vs.NNORUKA (1999) LPELR (5683) 1 at 24- 25. Therefore, the Cross Appellant which raised the defence of justification had theburden of proving that the publication was true as opposed to the Cross Respondents proving that it was false. See IRIVING vs.PENGUIN BOOKS (2000) WLR 362 at 478, AKOMOLAFE vs. GUARDIAN PRESS LTD (2004) 1 NWLR (PT. 853) 1 and INLAND BANKNIG PLC vs. FISHING & SHRIMPING CO. LTD (2010) LPELR (2158) 1 at 24-25. In deciding whether a publication isdefamatory, the entire publication must be taken as a whole. The Cross Appellant has rightly submitted that the truth of everyword in the libel need not be proved and that it suffices if the main charge or gist of the libel is true. In the words of Iguh, JSC inTHE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, (AMORC) NIGERIA vs. AWONIYI (1994) LPELR (3198) 1 at 60-61: "Forthe defence of justification to succeed, it is not necessary to prove the truth of each and every word comprised in the allegedlibel. It suffices if the defendant establishes that the main substance of the libellous statement is true and justified. Thedefendants need not justify statements or comments which do not add to the sting of the charge or introduce any matter byitself actionable." Equally, in ACB LTD vs. APUGO (2001) LPELR (9) 1 at 18-19, Ejiwunmi, JSC stated: "Although it is not necessaryto prove the truth of every word in the libel, the defendant, is however obliged to prove that the main charge or gist of the libelis true. He need not justify the statements or comments which do not add to the sting of the charge." See also AMUZIE vs.ASONYE (supra)."</span>Per OGAKWU, J.C.A. (Pp. 26-28, Paras. D-B) - read in context
7. TORT - LIBEL: Essential ingredients or elements a plaintiff must prove to succeed in an action for libel<span style="font-size: 12px;">"The law is trite as to the essential ingredients or elements which must be established for anaction in libel to succeed. They are: 1. That there is a publication in writing or in a permanent form. 2. That the publication isfalse. 3. That the publication was made to a person other than the claimant and defendant. 4. That the publication referred tothe claimant and is defamatory of the claimant. 5. That the publication was made by the defendant. See SKETCH vs.AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678 at 74, ANATE vs. SANUSI (2001) 27 WRN 26 at 41, ILOABACHIE vs. ILOABACHIE(supra) and AYENI vs. ADESINA (supra)."</span>Per OGAKWU, J.C.A. (P. 22, Paras. C-F) - read in context
8. TORT - DEFAMATION: Basis of the tort of defamation<span style="font-size: 12px;">"The gravamen of the tort of defamation is the publication of the defamatory matter to a thirdparty. It is rudimentary law that a person's reputation is not based on the good opinion he has of himself but the estimation inwhich others hold him. See NSIRIM vs. NSIRIM (2004) 26 WRN 13 at 32 and UNITY BANK vs. ABIOLA (2009) ALL FWLR (PT. 452)1082 at 1105."</span>Per OGAKWU, J.C.A. (P. 32, Paras. C-E) - read in context
(201
9) LP
ELR-46
442(
CA)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering
the Leading Judgment): This appeal was spawned by the
disagreement on the fees payable to the Cross Appellant in
respect of services it rendered in its consultancy contract
with the Cross Respondents. As the disagreement raged,
the Cross Appellant wrote a letter which the Cross
Respondents considered libellous and consequently
instituted an action before the High Court of Lagos State in
SUIT NO. LD/2245/2010: CHRIS BAYWOOD IBE &
ORS vs. BONUM NIGERIA LIMITED. The reliefs claimed
by the Cross Respondents are as follows:
“i) ₦100,000,000.00 (One Hundred Million Naira)
aggravated or exemplary damages to the 1st and 2nd
Claimants jointly and severally for libel contained in the
Defendant’s letter of 1st November, 2010 complained of.
ii) An injunction to restrain the Defendant by itself, or by its
servants or agents or otherwise howsoever from the further
publication of the said words complained of or any of them
or of any similar words in relation to the Claimants hereof.
iii) An order compelling the Defendant to wholly retract or
withdraw the content of the said letter of
1
(201
9) LP
ELR-46
442(
CA)
1st November, 2010 complained of from each and every
office and person the same was written and published.
iv) ₦100,000,000.00 (One Hundred Million Naira)
aggravated or exemplary damages to the 3rd Claimant for
libel contained in the Defendant’s letter of 1st November,
2010.
v) Interest on the judgment sum (if any) at the rate of 10%
per annum until the same is fully paid by the Defendant.
vi) Legal cost in the sum of ₦22,800,000.00 (Twenty-Two
Million, Eight Hundred Thousand Naira) only.”
(See page 1424 of Volume 3 of the Records)
The Cross Appellant set up a counterclaim wherein it
claimed the following reliefs:
“a) ₦12, 368,028.03 (Twelve Million, Three Hundred and
Sixty Eight Thousand, Twenty Eight Naira, Three Kobo) and
the sum of $279,691.83 (Two Hundred and Seventy Nine
Thousand, Six Hundred and Ninety One Dollars, Eighty
Three Cents) being sums due to the Counter Claimant
under the revised agreement.
b) Interest on the said sum at the rate of 16% per annum
from the day Payment was due since July 2010 until final
liquidation.
c) The sum of ₦7,016,000.00 (Seven Million, Sixteen
Thousand Naira)
2
(201
9) LP
ELR-46
442(
CA)
only being the amount of special damages incuured. [sic]
d) The sum of ₦232,000,000.00 (Two Hundred and Thirty
Two Million Naira) as general damages and loss of income.
Or in the alternative
i) The sum of ₦11, 688,000.00 (Eleven Million, Six Hundred
and Eighty-eight Thousand Naira) and $97, 453.00 (Ninety
Seven Thousand, Four Hundred and Fifty-three Dollars)
being value of 1% total variation approved by Chevron
Nigeria Limited.
a. Interest on the said sum at the rate of 16% per annum
from the day payment was due to the counter claimant
since July 2010 until final liquidation.
b. The sum of ₦7,016,000.00 (Seven Million, Sixteen
Thousand Naira) only being the amount of special damages
incurred.
c. The sum of ₦232,000,000.00 (Two Hundred and Thirty
Two Million Naira) as general damages and loss of
income.”
(See pages 994-995 of Volume 2 of the Records)
At the end of a full dressed hearing at which testimonial
and documentary evidence was adduced, the lower Court
delivered its judgment on 5th October, 2016 and relative
successes were recorded by the parties in their respective
claim and counterclaim.
3
(201
9) LP
ELR-46
442(
CA)
The parties were both dissatisfied with aspects of the
judgment and appealed against the same. This judgment
relates to the cross appeal which was filed on 8th
December, 2017, pursuant to the leave of Court granted on
21st November, 2017. The main appeal with the Cross
Respondents a s Appe l l an t s i s APPEAL NO.
CA/L/1445/2016: CHRIS BAYWOOD IBE & ANOR vs.
BONUM NIGERIA LIMITED.
After the judgment of the lower Court, the Cross Appellant
sought to enforce the aspect of the judgment favourable to
it by garnishee proceedings. A garnishee order nisi was
made and upon the same being served on the Cross
Respondents, they successfully applied for the same to be
set aside and the lower Court then made a conditional
order for stay of execution of the judgment. The Ruling of
the lower Court in this regard was delivered on 13th
December, 2016. The Cross Appellant was equally
dissatisfied with the said Ruling and incorporated its
complaints against the said Ruling in its Notice of Cross
Appeal. So the cross appeal is in respect of both the
judgment of 5th October 2016 and the Ruling of 13th
December 2016.
The Court directed that the Records of Appeal in the main
appeal number
4
(201
9) LP
ELR-46
442(
CA)
CA/L/1445/2016 be used for the hearing of this cross
appeal and the parties filed and exchanged briefs of
argument. The Cross Appellant’s Brief was filed on 24th
January 2018, while the Cross Respondents’ Brief was filed
on 19th February 2018. The Cross Appellant filed a Cross
Appellant’s Reply Brief on 14th March, 2018 but the same
was deemed as properly filed on 14th November, 2018. The
learned counsel for the parties adopted and relied on their
respective briefs at the hearing of the appeal.
The Cross Appellant distilled eight issues for determination
as follows:
“1. Whether the lower Court was right when it held that the
Cross Respondent has successfully established/proved their
claim for libel against the Cross Appellant? Relating to
Ground 1 of the Notice of Appeal.
2. Whether the lower Court exercised its discretion
judiciously and judicially when it awarded the sum of
N500,000.00 (Five Hundred Thousand Naira) as costs of
litigation against the Cross Appellant? Relating to
Ground 2 of the Notice of Appeal.
3. Whether based on the preponderance of evidence, the
lower Court was right when it held that the Cross
5
(201
9) LP
ELR-46
442(
CA)
Appellant was only entitled to 1% of the gross amount
approved per change as against 2.87% of the gross amount
approved per change? Relating to Ground 3 & 4 of the
Notice of Appeal.
4. Whether the lower Court was right when it failed to
expunge letter dated 25th October, 2010 from its record of
proceedings? Relating to Ground 5 of the Notice of
Appeal.
5. Whether the lower Court was right when it failed to
award any consultancy fees for two change orders
developed by the Cross Appellant and approved by Chevron
Nigeria Limited? Relating to Ground 6 of the Notice of
Appeal.
6. Whether the lower Court was right when it failed to
make a pronouncement on whether there was extension of
scope and extension of schedule thereby justifying the
increase of the Cross-Appellant’s fees from 1% of the gross
amount approved per change to 2.87% of the gross amount
approved per change? Relating to Ground 7 of the
Notice of Appeal.
7. Whether the lower Court was right when it granted in
favour of the Cross Respondent a conditional stay of
execution of its judgment? Relating to Ground 8 of the
Notice of Appeal.
6
(201
9) LP
ELR-46
442(
CA)
8. Whether the lower Court was not in grave error when it
applied the decision of this Honourable Court in the case of
Nigerian Breweries Plc v. Dumuje & Anor (2016) 8
NWLR, 536, 616-617, paras. D-A to vacate the garnishee
order nisi granted in favour of the Cross Appellant?
Relating to Ground 9 of the Notice of Appeal.
The Cross Respondents on their part formulated six issues
for determination, namely:
“i. Whether the lower Court was right when it held that the
cross-respondents have successfully established their claim
for libel against the cross-appellant. (Ground 1 of the
Notice of Cross Appeal)
ii. Whether the lower Court was right to have awarded the
sum of N500,000.00 (Five Hundred Thousand Naira) as
cost in favour of the cross-respondents. (Ground 2 of the
Notice of Cross Appeal).
iii. Whether the lower Court was right not to have
expunged Exhibit CW1-11 (letter dated 25th day of October
2010) from the record of the court. (Ground 5 of the
Notice of Cross Appeal)
iv. Whether the lower Court was right when it granted in
favour of the cross-respondents a conditional stay of
execution. (Ground 8 of the Notice of Cross Appeal)
7
(201
9) LP
ELR-46
442(
CA)
v. Whether the lower Court was right when it set aside the
garnishee order nisi granted in favour of the cross-
appellant. (Ground 9 of the Notice of Cross Appeal)
vi. Whether the lower Court was right when it held that
there was no evidence of agreement of parties as to
extension and revision of scope of work and that no
consensus was reached between the parties as regards the
review of consultancy fees from 1% to 2.87%. (Grounds 3,
4, 6 and 7 of the Notice of Cross Appeal)
Notwithstanding the disparity in the number of issues
crafted by the parties, the said issues are the same in their
true essence and purport. The issue numbers one and two
as distilled by the parties are the same. The Cross
Appellant’s issue numbers three, five and six are the same
as the Cross Respondents’ issue number six. The Cross
Appellant’s issue number four is the same as the Cross
Respondents’ issue number three. The Cross Appellant’s
issue number seven is the same as the Cross Respondents’
issue number four while the Cross Appellant’s issue
number eight is the same as the Cross Respondent’s issue
number five.
8
(201
9) LP
ELR-46
442(
CA)
Let me state that the Cross Appellant’s issue number seven
and eight (Cross Respondents’ issue numbers four and five)
are in respect of the Ruling of the lower Court of 13th
December, 2106 granting a conditional order for stay of
execution of its judgment. The contingency on which the
said conditional order for stay of execution is predicated is
the determination of this appeal. This judgment determines
this appeal and the said order by operation of law will
abate and become spent. Equally, the garnishee order nisi
which was vacated in the Ruling of the lower Court of 13th
December, 2016 was based on the judgment of the lower
Court which is being reviewed in this appeal. Therefore any
garnishee proceedings will now be informed by how this
judgment affects the said decision of the lower Court.
Already, I have held in the main appeal, CA/L/1445/2016,
that the judgment sum is inchoate and that the conditional
order for stay of execution could not have been made in the
terms made by the lower Court. The concomitance is that
the garnishee proceedings cannot be pursued for the said
inchoate judgment sum.
The point I seem to be labouring to make is that the said
issues which
9
(201
9) LP
ELR-46
442(
CA)
arise from the Ruling of 13th December, 2016 have become
academic as no benefit can be conferred on the parties by
any favourable resolution of the said issues. On the one
hand the order for stay automatically abates upon the
determination of this appeal and on the other hand the
judgment sum subject of the garnishee proceedings has
been determined not to be the adjudged sum that the Cross
Appellant can recover in the main appeal.
The Courts exist for the determination of live issues not
issues that are merely of academic interest and of no
practical utilitarian value. In PLATEAU STATE vs. A-G
FEDERATION (2006) 3 NWLR (PT. 967) 346 at 419,
Tobi, JSC stated:
“A suit is academic where it is thereby theoretical, makes
empty sound and of no practical utilitarian value to the
plaintiffs even if judgment is given in his favour. A suit is
academic if it is not related to the practical situation of
human nature and humanity.”
See also EZEANYA vs. OKEKE (1995) 4 NWLR (PT.
388) 142 at 165 and GLOBAL TRANSPORT OCEANICO
S.A vs. FREE ENTERPRISES (NIG) (2001) LPELR
(1324) 1 at 19-20. I would therefore discountenance with
the said issues which are now academic.
10
(201
9) LP
ELR-46
442(
CA)
In resolving the other issues, I will be guided by the
remaining four issues as formulated by the Cross
Respondents, which issues are concise, succinct and apt.
For purposes of clarity, the issues on which I would
consider the submissions of learned counsel and resolve
this appeal are as follows:
“1. Whether the lower Court was right when it held that the
Cross Respondent has successfully established its claim for
libel against the Cross Appellant.
2. Whether the lower Court was right to have awarded the
sum of N500, 000.00 (Five Hundred Thousand Naira) as
cost in favour of the Cross Respondents.
3. Whether the lower Court was right not to have expunged
Exhibit CW1-11 (letter dated 25th day of October 2010)
from the record of the Court.
4. Whether the lower Court was right when it held that
there was no evidence of agreement of parties as to
extension and revision of scope of work and that no
consensus was reached between the parties as regards the
review of consultancy fees from 1% to 2.87%.”
11
(201
9) LP
ELR-46
442(
CA)
ISSUE NUMBER ONE
Whether the lower Court was right when it held that the
Cross Respondent has successfully established its claim for
libel against the Cross Appellant.
SUBMISSIONS OF THE CROSS APPELLANT’S
COUNSEL
The Cross Appellant referred to the necessary facts to be
proved in order to succeed in an action for defamation. The
cases of OLOGE vs. NEW AFRICA HOLDINGS LTD
(2013) 17 NWLR (PT. 1384) 449 at 469 and
CONCORD PRESS (NIG) LTD vs. OLUTOLA (1999) 9
NWLR (PT. 620) 578 were referred to. It was stated that
the Cross Appellant pleaded and adduced evidence that it
did not send the alleged libellous letter to any of the 17
companies listed in the letter as having been copied the
letter and the Cross Appellant therefore denied publication
of the said letter to any third party, including Skye Bank,
Matori Branch. It was posited that the burden of proof was
therefore on Skye Bank to establish who delivered the
letter to it. Sections 131 and 133 of the Evidence Act were
referred to on burden of proof and it was asserted that the
Cross Respondents failed to lead evidence to establish that
the said letter was sent by the Cross Appellant. The cases
of NWAVU vs. OKOYE (2008) 18 NWLR (PT. 1118) 29
at 61, OLUSESI vs. OYELUSI (1986) 3 NWLR (PT 31)
634 and the statement of Ese Malami in Law of Tort 1st
Edition, page 430 were relied upon.
(201
9) LP
ELR-46
442(
CA)
It was further submitted that in order to constitute
publication, the defamatory matter must be published to a
third party and not merely to the plaintiff vide
EJANBULOR vs. OSHA II (1990) 5 NWLR (PT. 148) 1
at 20. It was posited that there was an issue as to who sent
the letter and that the lower Court was in error by holding
that the Cross Appellant published the said letter to Skye
Bank when, the Cross Respondents did not discharge the
evidential burden of proving publication. The case of
GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10
NWLR (PT. 1256) 574 at 588 was cited in support.
The Cross Appellant contends that the 1st Cross
Respondent carries on business in a business name which
does not have corporate personality and cannot sue; in
which case the reference to Partners, Management and
Directors of the business name (without mentioning a
particular name) in the alleged libellous letter goes to no
issue as the reputation of persons who are not specifically
named could not have been damaged. It was opined that it
was only the 1st Cross Respondent who sued as doing
13
(201
9) LP
ELR-46
442(
CA)
business in the business name and that the testimony of
any other person, on account of the business name not
being a legal person, will be hearsay and that in the
absence of admissible oral evidence, the alleged libellous
letter, Exhibit CW1-1 cannot serve any useful purpose. The
cases of TUNJI vs. BAMIDELE (2012) 12 NWLR (PT
1315) 477 at 492, BORNO HOLDING COMPANY LTD
vs. BOGOCO (1971) 1 ALL NLR 325 and JIMOH vs.
AKANDE (2009) 5 NWLR (PT. 1135) 549 at 585 were
called in aid.
It is the further contention of the Cross Appellant that the
defence of justification availed it, as Exhibit CW3h was a
newspaper publication showing that the Cross Respondents
had non-performing loans. Truth it was stated, was a
complete defence to defamation and small inaccuracies will
not defeat the plea of justification vide M’PHERSON vs.
DANIELS (1829) 109 ER 448 and AMORC vs.
AWONIYI (1994) 7 NWLR (PT. 355) 154. It was
asserted that to constitute defamation, the publication must
be false and without lawful justification and that every
word used is not expected to be proved as correct by the
defendant as it sufficed if the main charge or gist of the
libel is true.
14
(201
9) LP
ELR-46
442(
CA)
The cases of SKETCH vs. AJAGBEMOKEFERI (1989) 1
NWLR (PT. 100) 678 and AMUZIE vs. ASONYE (2011)
6 NWLR (PT. 1242) 19 at 45 were referred to. It was
maintained that the newspaper publication on the Cross
Respondents’ non-performing loans and the evidence of the
series of litigations they were involved in showed that the
Cross Appellant was justified in writing the alleged
defamatory letter.
The Cross Appellant posits that the alleged libellous letter
does not refer to the 2nd Cross Respondent and that the
lower Court was not correct in holding that the letter
amounts to libel against the 2nd Cross Respondent; which
holding influenced the outrageous sum of N5million
awarded as damages in favour of the Cross Respondents.
The Court was urged to interfere with the damages
awarded which was too high and was made without taking
into account relevant matters relating to the issue of no
publication against the 2nd Cross Respondent and equally
based on a wrong principle of law as the lower Court did
not consider the issue of hearsay and absence of
publication. The case of AFRICAN NEWSPAPER (NIG)
PLC vs. USENI (2015) 3 NWLR (PT. 1447) 464 at 497
was relied upon.
15
(201
9) LP
ELR-46
442(
CA)
SUBMISSIONS OF THE CROSS RESPONDENTS’
COUNSEL
The Cross Respondents submit that the lower Court rightly
held that the claim for libel was established by the
evidence. The facts to prove in an action for libel were set
out and the cases of ILOABACHIE vs. ILOABACHIE
(2005) 13 NWLR (PT. 943) 695 at 736 and AYENI vs.
ADESINA (2007) 7 NWLR (PT. 1033) 233 at 259 were
referred to. It was maintained that the evidence established
that the libellous letter Exhibit CW1-1 was received by Skye
Bank, Matori Branch and that it was therefore not open to
the Cross Appellant to merely say that it did not send
copies of the letter to those to whom it was copied without
adducing cogent and convincing evidence in that regard. It
was argued that not only is there a presumption that the
letter was sent to the person to which it was copied, but
that the Cross Respondents further called CW4 from Skye
Bank who testified that they received the letter.
It is the further argument of the Cross Respondents that
the contention that the specific names of the partners,
directors and management referred to in Exhibit CW1 – 1
have to be mentioned in order for the letter to
16
(201
9) LP
ELR-46
442(
CA)
be said to damage their reputation, was a new issue for
which leave was necessary to raise and that since no leave
was obtained, the same should be discountenanced vide
KADZI INT’L LTD vs. KANO TANNERY CO. LTD
(2004) 4 NWLR (PT. 864) 545 at 565-566. It was
further submitted that the reference to partners, directors
and management was a reference to the Cross Respondents
and that it damaged their reputation, even if the
partnership was not a juristic personality.
It was asserted that the testimony of CW1, CW2 and CW3
was not hearsay as they could give evidence on behalf of a
defamed person, more so as the evidence of a third party
carries more weight in libel cases and indeed the testimony
of CW4 sufficed to ground publication. The plea of
justification raised by the Cross Appellant was stated not to
have been established by the evidence as correctly held by
the lower court. The Cross Respondents maintained that
Exhibit CW1-1 was defamatory of the 2nd Cross
Respondent and that there was no appeal against the sum
of N5million awarded as damages against the Cross
Appellant.
17
(201
9) LP
ELR-46
442(
CA)
CROSS-APPELLANTS’ REPLY ON LAW
It was opined that the contention that the alleged
publication could not have damaged the reputation of
partners, directors and management whose names were
not specifically mentioned was not a new issue, but a new
line of argument on an issue that was before the Court, id
est, whether the lower Court was right in holding that the
claim for libel was proved. The case of KWAJAFFA vs.
B.O.N. LTD (2004) 13 NWLR (PT. 889) 1 at 168 was
relied upon. The Cross Appellant maintained that there is
justification for the publication in Exhibit CW1 – 1 since the
main charge or gist of Exhibit CW1 – 1 was true vide
AMUZIE vs. ASONYE (2011) 6 NWLR (PT. 1242) 19.
RESOLUTION OF ISSUE NUMBER ONE
The Cross Appellants’ letter of 1st November 2010 (Exhibit
CW1 - 1) which the lower Court found and held to be
defamatory of the Cross Respondents reads as follows:
“1st Nov. 2010
BAYWOOD DEXTRON VENTURES (BDV)
72, OLORUNLOGBON STEET, ANTHONY VILLAGE,
LAGOS.
ATTENTION: - REGINA OBANYA/CHRIS UGWU
RE: AGREED CONSULTANCY FEES TO BONUM ON
BDV TRU PROJECT.
We received your Letter dated 25th October, 2010. The
Letter has clearly confirmed indubitably, the
18
(201
9) LP
ELR-46
442(
CA)
intent of BDV, its Partners, Directors and Management to
defraud BONUM. We had suspected fraud from the actions
and inactions of BDV and its management since we
submitted our Invoice in July, 2010.
Your Letter is an excellent evidence of Corruption, Crime
and Fraudulent actions of BDV, its Partners, Directors and
Management. Additional evidence collated by our
Consultants indicate that BDV is a ‘419’ Company. We can
infer that BDV, its partners, Directors and Management,
consistently obtain goods, services and loans fraudulently
by false pretence.
We are well aware of the following cases and others of
serial Fraud, with impunity by BDV, its Partners, Directors
and Management.
1. The names of Customers with the biggest ‘non-
performing’ debts were published on the front page of the
October 15, 2009 edition of ‘Thisday’ Newspaper, [Please
see attached photocopy]. Baywood Continental Limited was
reported to be owing Spring Bank, N2.743 Billion.
2. NNPC’s NPDC awarded the Oredo Flow Station
Relocation Contract to Baywood Continental Limited in
Dec. 2002. Baywood failed to conduct the Project as
19
(201
9) LP
ELR-46
442(
CA)
required by the Contract after collecting mobilization. This
led to the termination of the Contract in March 2006 by
NPDC. Baywood made no refunds.
3. Currently, Baseline Energy Limited [A Supplier to BDV
on the TRU Project] has sued BDV in the High Court of
Lagos State; Ikeja Judicial Division in Suit No. ID/97/2010.
4. Similarly, on the 10th day of March, 2010, Jolotex
Nigeria Limited secured a Judgment against Baywood
Dextron Ventures in Suit No. EHC/256/2009 in Warri,
before they got paid for their services.
5. In our case, BDV had prepared ab-initio corruptly and
senselessly to defraud BONUM by making obviously false
and unreasonable claims after using our excellent
professional project management services most
successfully to recover $17 Million [USD] on the TRU
Project. In addition to your false claims, the Date of our
Appointment indicated in your Letter is also false.
BDV is in criminal breach of our Contract ‘Payment Plan’.
Our payment was due in July 2010 and your intent to
defraud is obvious form your Letter.
The laws of Nigeria forbid criminal conduct. We had cause
during our Consultancy Services to you, to
20
(201
9) LP
ELR-46
442(
CA)
advise you in writing to conduct your business with
integrity. Apparently, you have not only ignored our
excellent professional advice but have gone ahead with
impunity to document your attempt to defraud us in your
referenced Letter. We will expose this attempt and you
could be compelled by law to conduct your business with
integrity or cease to operate.
Per our Contract, our payment was due since July, 2010.
You must pay BONUM in full, immediately, for our services
duly rendered per our accurate Invoice which you
previously reviewed and accepted both verbally and
electronically. Your desperation to defraud criminally has
blinded you and you forgot that, BDV has already made a
part payment of N5 Million to us on the basis of the same
Invoice you previously accepted and now wish to reject
fraudulently.
Signed
Cyprian Yande,
General Manager.
CC:
1. Commissioner of Police, Lagos State
2. Commissioner of Police, Special Fraud Unit
3. Inspector General of Police
4. Project Manager, TRU, CNL
5. Manager, Terminal Projects, CNL
6. Terminal Superintendent, CNL
7. MD, Jolotex Nigeria Ltd.
(201
9) LP
ELR-46
442(
CA)
8. MD, Baseline Nigeria Ltd.
9. Program Manager, Mobil Producing Nigeria
10. General Manager, NPO, Mobil Producing Nigeria
11. Project Director, OUR Project, Zachem
12. Manager, Facilities Engineering, NAPIMS
13. GGM, NAPIMS
14. MD, NPDC
15. Branch Manager, Skye Bank, Matori, Lagos
16. MD, Skye Bank PLC
17. GED E&P, NNPC."
The law is trite as to the essential ingredients or elements
which must be established for an action in libel to succeed.
They are:
1. That there is a publication in writing or in a permanent
form.
2. That the publication is false.
3. That the publication was made to a person other than the
claimant and defendant.
4. That the publication referred to the claimant and is
defamatory of the claimant.
5. That the publication was made by the defendant.
See SKETCH vs. AJAGBEMOKEFERI (1989) 1 NWLR
(PT. 100) 678 at 74, ANATE vs. SANUSI (2001) 27
WRN 26 at 41, ILOABACHIE vs. ILOABACHIE (supra)
and AYENI vs. ADESINA (supra). The lower Court held
that the above elements or ingredients were established as
a result of which it mulcted the Cross Appellant in
damages.
(201
9) LP
ELR-46
442(
CA)
The contestation is whether the lower Court was not
correct in this regard.
Now, it is not confuted that Exhibit CW1 – 1 is in a
permanent from, in writing and that it was made by the
Cross Appellant. The major thrust of the Cross Appellant’s
argument is that the said letter was not published to any
third party, that it does not refer to the Cross Respondents
on record and that it is not defamatory of them and more
importantly that the publication is not false. To boot, the
Cross Appellant raised the defence of justification and
adduced evidence in that regard.
In paragraphs 39 and 42 of the Amended Statement of
Defence the Cross Appellant averred as follows:
“39. The Defendant avers that the said word complained of,
or the words set out in paragraph 4 of the Claimants’
statement of claim were true in substance and in fact. The
Defendant shall rely on the defense of justification at the
trial of this suit.
PARTICULARS
a. It was reported in Thisday Newspaper of 15th October,
2009 that Claimants took out as a loan the sum of N2.743
Billion Naira from Spring Bank of Nigeria Plc, the
Claimants failed, neglected and refused to pay
23
(201
9) LP
ELR-46
442(
CA)
back any part or the whole sum causing the Central Bank of
Nigeria to publish in Thisday Newspaper on October, 15th
2009 the names of Spring Bank Plc customers with the
biggest non-performing debts of which the 3rd Claimant’s
name appeared. Certified True Copy of the said This
day Newspaper is hereby pleaded and shall be relied
upon at the trial of this suit.
b. The Claimants’ fraudulent activity manifested in NNPC’s
NPDC Oredo Flow Station Relocation Contract awarded to
the Claimants in December, 2002. The Claimants failed to
conduct the project as required by the contract after being
heavily mobilized which led to the termination of the
contract in March 2006. In particular, the said letter from
NNPC dated 1st March, 2006 clearly shows that the
contract was terminated because of the 3rd Defendant’s
failure to complete same within time which led to the
termination of the said contract for non-performance. The
Defendant shall rely on the said letter by Nigerian
Petroleum Development Company Limited dated the
1st of March, 2006 at the trial of this suit.
c. The partnership operated by the 1st and 2nd Claimant
neglected, refused
24
(201
9) LP
ELR-46
442(
CA)
and failed to carry on its obligation under the contract it
had with Baseline Energy Limited by refusing to pay money
due to baseline Energy Limited after the said Baseline had
supplied goods to it. This suit was later settled out of Court.
The Defendant shall rely on the Statement of Claim of
Baseline Energy Services Limited in Suit No.
ID/97/2010 and terms of settlement executed between
Baseline Energy Services Limited and the 1st & 2nd
Claimants and entered in Court as judgment in Suit
No. ID/97/2010.
d. The partnership operated by the 1st & 2nd Claimant also
breached its obligation under a contract it executed with
Jolotex Nigeria Limited, the said Jolotex secured a
judgment against the 1st & 2nd Claimants’ partnership in
Suit No. EHC/256/2009 in Warri, before they got paid for
their services.”
“42. In reply to paragraph 31 of the amended statement of
claim, the Defendant avers that statement in the alleged
libelous letter as to the debt owed to Springbank Plc is true
in fact and substance and it is irrelevant if the Newspaper
statement is inaccurate as to 100% correct details. The
Defendant further avers that the
25
(201
9) LP
ELR-46
442(
CA)
two rejoinders by the 3rd Claimant in the Thisday
Newspaper and Daily Sun Newspaper cannot erase the fact
that there was a publication to the effect that the 3rd
Claimant was in unserviced debts and that the publication
was true state of events as they were. The Defendant
further avers that the Claimants had not asked any Thisday
Newspaper for a retraction of the said publication and no
action had been instituted against Thisday for libel,
confirming the veracity of the publication. The Defendant
only referred to the publication and did not assert its
veracity.”
(See pages 607-608 and 609 of Volume 2 of the Records)
It is hornbook law that where the defence of justification is
set up as in this case, the probative value on the claimant is
lessened as the plea of justification implies an admission
that the publication was made by the defendant, but that
the publication is true. The defendant then has the onus of
proving the veracity of the publication. Where it is able to
do so then it cannot be liable in damages since damages
are awarded where the publication is false: OJUKWU vs.
NNORUKA (1999) LPELR (5683) 1 at 24- 25.
26
(201
9) LP
ELR-46
442(
CA)
Therefore, the Cross Appellant which raised the defence of
justification had the burden of proving that the publication
was true as opposed to the Cross Respondents proving that
it was false. See IRIVING vs. PENGUIN BOOKS (2000)
WLR 362 at 478, AKOMOLAFE vs. GUARDIAN PRESS
LTD (2004) 1 NWLR (PT. 853) 1 and INLAND BANK
NIG PLC vs. FISHING & SHRIMPING CO. LTD (2010)
LPELR (2158) 1 at 24-25.
In deciding whether a publication is defamatory, the entire
publication must be taken as a whole. The Cross Appellant
has rightly submitted that the truth of every word in the
libel need not be proved and that it suffices if the main
charge or gist of the libel is true. In the words of Iguh, JSC
i n THE REGISTERED TRUSTEES OF THE
ROSICRUCIAN ORDER, (AMORC) NIGERIA vs.
AWONIYI (1994) LPELR (3198) 1 at 60-61:
“For the defence of justification to succeed, it is not
necessary to prove the truth of each and every word
comprised in the alleged libel. It suffices if the defendant
establishes that the main substance of the libellous
statement is true and justified. The defendants need not
justify statements or comments which do not add to the
sting of the charge or introduce any matter by itself
actionable.”
27
(201
9) LP
ELR-46
442(
CA)
Equally, in ACB LTD vs. APUGO (2001) LPELR (9) 1 at
18-19, Ejiwunmi, JSC stated:
“Although it is not necessary to prove the truth of every
word in the libel, the defendant, is however obliged to
prove that the main charge or gist of the libel is true. He
need not justify the statements or comments which do not
add to the sting of the charge.”
See also AMUZIE vs. ASONYE (supra).
I have already reproduced verbatim ac literatim the text of
the alleged libellous publication, Exhibit CW1 – 1. It is
translucent that the main charge or gist of the libel
complained about is that the Cross Respondents are
fraudulent, corrupt, fraudulently obtain by false pretences,
criminals, ‘419’ Company and serial fraudsters. The main
gist of the libel is not in the publication of the 2nd Cross
Respondent’s name as a debtor or that it was sued or that
judgment was obtained against it or that the contract
awarded to it was terminated; it is to prove that in those
instances the Cross Respondents were fraudulent and
defrauded the persons they dealt with. The evidence
adduced by the Cross Appellant did
28
(201
9) LP
ELR-46
442(
CA)
not establish the defence of justification as it did not prove
the main sting of the Cross Respondents being fraudulent
and into ‘419’, which is the main slur and sting in the
publication. The lower Court was therefore correct when it
held that the defence of justification did not avail the Cross
Appellant in the following words:
“A cursory look at the ‘This Day’ Newspaper of October 15,
2009 relied on by the Defendant of an outstanding ‘non-
performing’ debt of the 3rd Claimant to Spring Bank in the
sum of N2.743 Billion (which was refuted by the Claimants
vide the This Day Newspaper publication of 20th October
2009) does not in any form describe the Claimants as
‘fraudsters’ who ‘consistently obtain goods, services and
loans fraudulently by false pretence’ as stated in Exhibit
CW1 (1) the Defendant’s letter of 1st November 2010.
The Defendant has further listed an Oredo-Flow station
contract to Baywood Continental Limited in 2002 which
they failed to perform despite payment of mobilization. The
Defendant has despite Exhibit CW2 (a) proffered no
evidence of ‘FRAUD’
29
(201
9) LP
ELR-46
442(
CA)
before the Court in proof of same. The law suits also listed
do not indicate more than commercial disputes and
therefore cannot impute ‘fraudulent’ acts/actions by the
Claimants. In the absence of any justification for the said
letter and from the contents thereof, it is evident that same
was indeed malicious and written with the intent to expose
the Claimants to ridicule or contempt, particularly as same
was copied to persons who are not privy to their contract
and had no business with the parties as regarding the
contract in issue.
The Honourable Court therefore believes that from the
entirety of facts before it, the plea of justification cannot
avail the Defendant and therefore fails.”
(See pages 1614-1615 of Volume 3 of the Records).
I have given due consideration to the Cross Appellant’s
contention that Exhibit CW1 – 1 does not defame the 2nd
Cross Respondent and that the 1st Cross Respondent not
having been specifically mentioned by name therein is not
defamed. I am not enthralled by this contention. The 2nd
Cross Respondent is clearly mentioned by name in
paragraphs 1 and 2 of Exhibit CW1-1, in the
30
(201
9) LP
ELR-46
442(
CA)
instances of serial fraud that were allegedly committed. I
iterate that the said fraud was not proved by the evidence.
Furthermore, the 1st Cross Respondent is known as a
partner in BDV. Indeed, the 1st Cross Respondent
prosecuted the action as doing business in the name and
style of Baywood Dextron Ventures (BDV). It has not even
been remotely suggested that the 1st Cross Respondent is
not a Partner in BDV. It is with respect chop sense and
logic to contend that the publication does not refer to the
1st Cross Respondent, a known Partner in BDV, because it
did specifically mention his name other than by virtue of his
being a Partner. The sting of the defamation is clearly
referable to the Cross Respondents and the lower Court
rightly so held at pages 1613-1614 of Volume 3 of the
Records as follows:
“There is also no doubt that the statement refers to the
Claimants as even though the letter was addressed to
Baywood Dextron Ventures (BDV), the body of same
particularly paragraphs 1, 2 and 3 of same refers to its
Partner Directors and Management (same has not been
disputed)
The Honourable Court believes and finds that indeed
paragraphs 1, 2, 3 and 5
31
(201
9) LP
ELR-46
442(
CA)
are without doubt libelous in their natural and ordinary
meaning and refer to the 1st and 2nd Claimants (doing
business in the name and style of Baywood Dextron
Ventures) including their Partners, Directors and
Management.
The Court further believes that the words are equally
libelous of the 3rd Defendant.
There is no doubt that the words of the said paragraphs
portray the Claimants as dishonest, in the habit of cheating,
guilty of dishonest and dishonourable conduct and lacking
in integrity.”
The gravamen of the tort of defamation is the publication of
the defamatory matter to a third party. It is rudimentary
law that a person’s reputation is not based on the good
opinion he has of himself but the estimation in which others
hold him. See NSIRIM vs. NSIRIM (2004) 26 WRN 13
at 32 and UNITY BANK vs. ABIOLA (2009) ALL FWLR
(PT. 452) 1082 at 1105. It was therefore not for the 1st
Cross Respondent to personally testify as to what people
think of him as a result of the publication. The testimony of
the CW1 - CW4 was germane in the diacrit ical
circumstances of the matter.
32
(201
9) LP
ELR-46
442(
CA)
The Cross Appellant makes a kerfuffle of the fact that it did
not send Exhibit CW1-1 to any of the 17 persons indicated
to have been copied the letter. There is however the
unchallenged evidence of the CW4 that the letter was
received by Skye Bank, Matori Branch, which is listed as
number 15 in the list of persons to whom Exhibit CW1-1
was copied. The testimony of the CW4 cannot be wished
away by the mere assertion by the Cross Appellant that
they did not send the letter to those copied. By Section 145
(1) of the Evidence Act, whenever it is provided that the
Court may presume a fact, the Court may either regard
such fact as proved unless and until it is disproved or it
may call for proof of it. Section 167 of the Evidence Act
stipulates that the Court may presume the existence of any
fact which it deems likely to have happened, regard being
had to the common course of natural events, human
conduct and public and private business in their
relationship to the facts of a particular case. In the
circumstances of this matter, the Court may presume that a
letter written and said to have been copied to someone was
actually despatched to the said person by the writer of the
letter, more so when evidence is adduced by the person to
33
(201
9) LP
ELR-46
442(
CA)
whom the letter was copied that he actually received the
letter. The Cross Appellant did not adduce any evidence to
disprove or rebut this presumption.
In holding that publication was proved, the lower Court
held thus:
“Now to the simple issue of publication, it is not in dispute
that the said letter being complained of has on its face, that
fact of courtesy copies (cc) of same to 17 persons.
The defendant has stated without more that they did not
send out the copies as stated in the body of the letter.
There is the evidence of CW4 (Staff of Skye Bank Plc-
Matori Branch) before the Court who testified to the
receipt of Exhibit CW1 (1) when same was brought to his
attention by a Secretary, informing the Court that the letter
was received and time-stamped and that he brought same
to the Manager’s attention.
First, ‘In proving public in libel cases… the law is that libel
does not require publication to more than one person...’ –
AYENI V ADESINA (2007) 7 NWLR (PT 1033) PG 233
at 262-263.
It is the reduction of libelous material to writing and its
delivery to any person other than the person
34
(201
9) LP
ELR-46
442(
CA)
injuriously affected that is publication. See AGI V FIRST
CITY MONUMENT BANK PLC (2013) LPELR-
CA/C/19/2011.
The Court finds that the evidence of CW4 remained intact
and unshaken despite cross-examination and therefore
believes and finds that the Claimant had successfully
proved publication to Skye Bank (third party).”
(See pages 1615 of Volume 3 of the Records).
The concatenation of the foregoing is that after due and
insightful consideration of the evidence on the cold printed
Records, the ineluctable conclusion is that all the elements
or ingredients for proving libel were established by the
Cross Respondents and the lower Court arrived at the
correct decision when it so held. This issue is therefore
resolved against the Cross Appellant.
ISSUE NUMBER TWO
Whether the lower Court was right to have awarded the
sum of N500, 000.00 (Five Hundred Thousand Naira) as
costs in favour of the Cross Respondents.
SUBMISSIONS OF THE CROSS APPELLANT’S
COUNSEL
The Cross Appellant complains that the costs of
N500,000.00 awarded by the lower Court was too high and
was tantamount to punishing the Cross Appellant.
35
(201
9) LP
ELR-46
442(
CA)
It was posited that the costs awarded was not a proper
exercise of judicial discretion especially when the Cross
Appellant was also successful and no costs were awarded in
its favour. The Court was urged to review the costs
awarded by the lower Court as the lower Court failed to
observe the provisions of Order 49 of the High Court of
Lagos State (Civil Procedure) Rules in making the award.
The cases of M. H. (NIG) LTD vs. OKEFIENA (2011) 6
NWLR (PT. 1224) 514, CARNAUD METAL BOX (NIG)
PLC vs. AGWELE (2009) 17 NWLR (PT. 1171) 487 at
508- 509, AGIDIGBI vs. AGIDIGBI (1996) 6 NWLR
(PT. 454) 300 among other cases were relied upon.
SUBMISSIONS OF THE CROSS RESPONDENTS’
COUNSEL
The Cross Respondents submit that their action for libel
having succeeded, the lower Court was right to have
awarded the cost of N500,000.00 in their favour, regard
being had to the provisions of Order 49 Rule 1 (1) (a) and
(b) of the High Court of Lagos State (Civil Procedure)
Rules. It was stated that a Court in awarding costs takes
into consideration the expenses reasonably incurred among
other factors. The case of DELTA STEEL (NIG) LTD vs.
AMERICAN COMPUTER TECHNOLOGY INC (1999) 4
NWLR (PT. 597) 53 at 68 was referred to.
36
(201
9) LP
ELR-46
442(
CA)
It was opined that the Cross Respondents pleaded and
adduced evidence on the fees they paid to their Solicitors
and that if the lower Court had taken into consideration the
cost of legal representation, which it found proved, it would
have awarded more than the N500,000.00 it awarded as
costs. The cases of M. H. NIG LTD vs. OKEFIENA
(supra) and LEBILE vs. REG. C & S (2003) 2 NWLR
(PT. 804) 399 at 422-423 were cited in support.
CROSS APPELLANT’S REPLY ON LAW
The Cross Appellant argued in the Reply Brief that there is
no relationship between the costs awarded by the lower
Court and the specific monetary claim of the Cross
Respondents, since following events in litigation a party
need not ask for costs and the costs awarded ought not to
be based on the amount of monetary claim in the action.
The case of ANYAEGBUNAM vs. OSAKA (1993) 5
NWLR (PT. 294) 449 was called in aid.
RESOLUTION OF ISSUE NUMBER TWO
The disceptation under this issue is with regard to the costs
awarded in favour of the Cross Respondents by the lower
Court. Let me restate that there was a claim and
counterclaim before the lower
37
(201
9) LP
ELR-46
442(
CA)
Court and the parties registered relative successes in their
respective claim and counterclaim. So the parties all
succeeded in their action. However, in exercising discretion
to award costs, the lower Court only awarded costs in
favour of the successful Cross Respondents; no costs were
awarded in favour of the equally successful Cross
Appellant. Now, in these circumstances, was the cost
awarded in favour of the Cross Respondent a proper
exercise of judicial discretion?
The position of the law is that costs follow event and a
successful party should not be deprived of his costs unless
for good reasons. See SAEBY vs. OLAOGUN (1999)
10-12 SC 45 at 59. In AKINBOBOLA vs. PLISSON
FISKO NIGERIA LTD (1991) 1 NWLR (PT. 167) 270,
Kawu, JSC stated:
"The award of costs is of course, always at the discretion of
the Court which discretion must be exercised both
judicially and judiciously… It is also a well-established
principle that costs follow events and that a successful
party is entitled to cost unless there are special reasons for
depriving him of his entitlement…"
The essence of costs is to compensate the successful party
for part of the
38
(201
9) LP
ELR-46
442(
CA)
losses incurred in the litigation. Costs cannot cure all the
financial losses sustained in the litigation. It is also not
meant to be a bonus to the successful party, and it is not to
be awarded on sentiments. The award of costs being a
matter within the discretion of the trial Court, an appellate
Court will not normally interfere in the exercise of
discretion by the trial Court in awarding costs except
where it is shown not to have been exercised judicially and
judiciously. The aim of the award of costs is to indemnify or
compensate the successful party for expenses incurred in
the course of the litigation. Costs are however not meant to
punish the unsuccessful party. See OYEDEJI vs.
AKINYELE (2001) FWLR (PT. 77) 970 at 1001, M. H.
(NIGERIA) LIMITED vs. OKEFIENA (supra) and ERO
vs. TINUBU (2012) LPELR (7869) 1.
In GAMBARI vs. ILORI (2002) 14 NWLR (PT. 786) 78
at 103-104, Mohammed, JCA held as follows:
"I shall however comment briefly on the complaint of the
appellant on the N5000.00 costs awarded against him by
the trial Court which the learned Counsel to the appellant
described as improper and not supported by evidence or
submission of Counsel relating to out of pocket expenses.
39
(201
9) LP
ELR-46
442(
CA)
Unquestionably, the award of costs by the Court to the
successful party falls squarely within the discretionary
domain of the Court, which discretion as the law requires,
must be exercised judicially and judiciously particularly in
the absence of any guidance in the various civil procedure
rules of the High Courts as contained in the Supreme Court
Rules and the Court of Appeal Rules. While it is true that a
successful litigant should not be denied costs, it is firmly
established that costs must follow the event but many a
time circumstances and for good reasons, the defeated
party may not be damnified in costs... As a general
principle therefore, it may be said that costs are in the
discretion of the Court and for that reason, where the Court
exercised its discretion judicially and judiciously as
opposed to doing so capriciously or upon any wrong
principle, an appellate Court is without power to interfere
with such honest exercise of the Court's discretion."
Order 49 Rule 1 of the High Court of Lagos State (Civil
Procedure) Rules, 2012 referred to by the parties stipulates
as follows:
40
(201
9) LP
ELR-46
442(
CA)
“(1) In fixing the amount of costs, the principle to be
observed is that the party who is in the right is to be
indemnified for the expenses to which he has been
necessarily put in the course of proceedings, as well as
compensated for his time and effort in coming to Court.
Such expenses shall include:
(a) The cost of legal representation and assistance of the
successful party to the extent that the Judge determines
that the amount of such cost is reasonable;
(b) The travel and other expenses of parties and witnesses
to the extent that the Judge determines that the amount of
such expenses is reasonable, and such other expenses that
the Judge determines ought to be recovered, having regard
to the circumstances of the case.
(2) When costs are ordered to be paid, the amount of such
costs shall, if practicable, be summarily determined by the
Judge at the time of delivering the judgment or making the
order.
(3) When the Judge deems it to be impracticable to
determine summarily the amount of any costs which he has
adjudged or ordered to be paid, all questions relating
thereto shall be referred by the Judge to a Taxing Officer
for taxation.”
41
(201
9) LP
ELR-46
442(
CA)
It is evident that the above provision deals with the
principle to be observed by a Court in fixing costs to be
awarded to the parties. Going by the strict application of
the provision, both parties having registered success in the
action, and therefore “in the right” were entitled to costs.
The lower Court however exercised discretion by awarding
costs to the Cross Respondents only. So costs were
awarded against the successful Cross Appellant. In other
words, costs were not awarded in favour of the successful
Cross Appellant. Put differently once again, costs were not
awarded against the unsuccessful Cross Respondents upon
the success of the Cross Appellant’s counterclaim. The
question is whether this was a judicial and judicious
exercise of discretion.
At the risk of prolixity, there was a claim and a
counterclaim before the lower Court. The claim and
counterclaim succeeded in part; so it was not a win-win for
either party at the lower Court. The exercise of discretion is
a liberty or privilege to decide and act in accordance with
what is fair and equitable under the circumstances of the
particular case, guided by the spirit and principles of law:
42
(201
9) LP
ELR-46
442(
CA)
THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN
OVERSEAS CHARTERING & SHIPPING LTD (2003) 9
MJSC 156 at 168. Like all judicial discretions, the
discretion is exercised judicially and judiciously. Judicial in
the sense that it must be for a reason connected with the
case and judicious in the sense that it must be based on
sound judgment marked by discretion, wisdom and good
sense. SeeERONINI vs. IHEUKO (1989) 3 SCNJ 130 at
141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1
at 8.
In the diacritical circumstances of the manner in which the
decision of the lower Court turned, in which neither party
could be said to have wholly carried the day, it seems to me
that the award of costs to the Cross Respondents against
the Cross Appellant was not the exercise of discretion for a
reason connected with the case. It was not based on sound
judgment, wisdom and good sense to have awarded costs in
favour of only one of the successful parties against an
equally successful party. In a coda, it was not fair and
equitable and it was a wrong exercise of judicial discretion.
An appellate Court will definitely interfere in the
circumstances.
43
(201
9) LP
ELR-46
442(
CA)
The Cross Respondents had claimed the legal cost of the
action as a specific relief. The lower Court considered the
evidence adduced in that regard and was unable to grant
the same. Contrary to the contention of the Cross
Respondents, the lower Court was right not to have relied
on the evidence adduced in the unsuccessful proof of legal
costs to arrive at the amount to award as costs of the
action. The lower Court gave no reasons for awarding costs
against the equally successful Cross Appellant; such cannot
be allowed to stand. It is not a question of whether the
amount awarded as costs is excessively high or not; rather
it is that in the peculiar circumstances, the proper exercise
of discretion was that costs should not have been awarded.
The parties having both succeeded ought to bear their
respective costs of the litigation. Consequently, this Issue
Number Two is resolved against the Cross Respondents.
The costs awarded in favour of the Cross Respondents is
hereby set aside. There shall be no order as to costs. The
parties are to bear their respective costs.
ISSUE NUMBER THREE
Whether the lower Court was right not to have expunged
Exhibit CW1-11 (letter dated 25th day of October 2010)
from the record of the Court.
44
(201
9) LP
ELR-46
442(
CA)
SUBMISSIONS OF THE CROSS APPELLANT’S
COUNSEL
The quiddity of the Cross Appellant’s contention on this
issue is that after it wrote its letter, Exhibit CW3. L
threatening legal action, the Cross Respondents replied by
their Exhibit CW1. 11 and returned the payment invoices
which had earlier been forwarded to them on the ground
that they did not reflect the true position of the consultancy
fees due to the Cross Appellant. It was posited that the said
Exhibit CW1.11 was written in anticipation of the legal
proceedings that was threatened and was rendered
inadmissible by the provisions of Section 83 (3) of the
Evidence Act. The Court was urged to expunge the said
Exhibit CW1.11 notwithstanding that an objection was not
taken to its admissibility vide CHUKWU vs. FRN (2013)
12 NWLR (PT. 1369) 488 at 509.
SUBMISSIONS OF THE CROSS RESPONDENTS’
COUNSEL
The Cross Respondents opine that Exhibit CW1.11 having
been admitted without objection, that the Cross Appellant
could no longer be heard to complain about its admissibility
not having objected when the document was tendered in
evidence.
45
(201
9) LP
ELR-46
442(
CA)
It was stated that except for documents rendered
inadmissible for failure to satisfy some conditions or
criteria, an opposing party who fails to object to the
admissibility of a document cannot thereafter be heard to
complain about its admissibility. The cases ofETIM vs.
EKPE (1983) 14 NSCC 86 at 95-96, OLANLOYE vs.
FATUNBI (1999) 8 NWLR (PT 614) 203 at 229 and
IKENNA vs. BOSAH (1997) 3 NWLR (PT. 494) 439 at
452-453 were relied upon. It was maintained that Exhibit
CW1.11 was not written in anticipation of litigation but was
only a response to the Cross Appellant’s Exhibit CW3. L.
CROSS APPELLANT’S REPLY ON LAW
The Cross Appellant states that Exhibits CW1.11 is not a
document that is admissible subject to any conditions being
satisfied, but that it is rendered inadmissible by Section
83(3) of the Evidence Act. It was asserted that a document
which is inadmissible is invalid for all intents and purposes
and cannot form the basis of any competent finding by a
court vide NWAOGU vs. ATUMA (2013) 11 NWLR (PT.
1364) 117 at 136 -137. It was conclusively submitted that
an appellate Court has a duty to exclude inadmissible
evidence and decide the case
46
(201
9) LP
ELR-46
442(
CA)
based on the legally admissible evidence. The cases of
BUHARI vs. OBASANJO (2005) 13 NWLR (PT. 941) 1
and OZIGI vs. UBN (1994) 3 NWLR (PT. 333) 385 were
cited in support.
RESOLUTION OF ISSUE NUMBER THREE
The parties disagree and dispute the percentage payable to
the Cross Appellant as consultancy fees. The case powered
by the Cross Appellant is that the percentage payable to it
as consultancy fees was changed from 1% to 2.87%. The
Cross Respondents maintain that the percentage remained
at 1% and was not changed. The Cross Appellant’s
contention is that the Cross Respondents in Exhibit CW1.11
turned around to deny that the percentage had been
revised from 1% to 2.87%.
It is the Cross Appellant’s case that the percentage due to
it is 2.87% as revised; so it had the burden of proving the
same. The crux of the contention under this issue is on
wrongful admission of evidence. The law is that wrongful
admission of evidence shall not of itself be a ground for the
reversal of a decision where it appears on appeal that such
evidence cannot reasonably be held to have affected the
decision and that the decision would have been the same
47
(201
9) LP
ELR-46
442(
CA)
if such evidence had not been admitted. See EZEOKE vs.
NWAGBO (1988) 1 NWLR (PT. 72) 616 at 630,
OJENGBEDE vs. ESAN (2001) 18 NWLR (PT. 746) 791
and MONIER CONSTRUCTION CO LTD vs. AZUBUIKE
(1990) 3 NWLR (PT. 136) 74 at 88. So even if Exhibit
CW1.11 was not admissible by virtue of the stipulations of
Section 83 (3) of the Evidence Act, the wrongful admission
of the same, eo ipso, cannot form the basis for overturning
the decision of the lower Court where it transpires that the
Cross Appellant did not prove its case on the percentage of
consultancy fees payable to it.
Section 251 (1) of the Evidence Act provides as follows:
“The wrongful admission of evidence shall not of itself be a
ground for the reversal of any decision in any case where it
appears to the Court on appeal that the evidence so
admitted cannot reasonably be held to have affected the
decision and that such decision would have been the same
if such evidence had not been admitted.”
So the question is whether without Exhibit CW1.11, the
judgment of the lower Court would have been different.
Where it will not make any difference to the decision
reached, then the wrongful admission
48
(201
9) LP
ELR-46
442(
CA)
shall not be a basis on which to reverse the decision of the
lower Court: YASSIN vs. BARCLAYS BANK DCO (1968)
LPELR (25440) 1 at 14-15, OKONJI vs. NJOKANMA
(1999) LPELR (2477) 1 at 46 and ALLI vs .
ALESHINLOYE (2000) LPELR (427) 1 at 51-52. We
would find out in the course of examining the next issue,
which deals with how the evidence preponderates on the
vexed question of review of the percentage of consultancy
fees payable to the Cross Appellant from 1% to 2.87% and
proof thereof, whether the wrongful admission of the said
Exhibit CW1.11 affected the decision of the lower Court;
such that the exhibit should be expunged and the decision
of the lower Court reversed.
ISSUE NUMBER FOUR
Whether the lower Court was right when it held that there
was no evidence of agreement of parties as to extension
and revision of scope of work and that no consensus was
reached between the parties as regards the review of
consultancy fees from 1% to 2.87%.
SUBMISSIONS OF THE CROSS APPELLANT’S
COUNSEL
The conspectus of the Cross Appellant’s contention is that
the scope and duration of the consultancy agreement with
the Cross Respondents was expanded
49
(201
9) LP
ELR-46
442(
CA)
and extended consequent upon which the consultancy fees
was reviewed from 1% to 2.87% and that the Cross
Respondents accepted the reviewed percentage of 2.87%.
It was maintained that a contract can be given effect to
whether in writing, parole or established by conduct of the
parties and that the Courts effectuate the intention of the
parties. The cases of UTC NIGERIA PLC vs. PHILLIPS
(2012) 6 NWLR (PT. 1295) 136 at 163, ADENIRAN vs.
OLAGUNJU (2001) 17 NWLR (PT. 741) 159 at 187,
OMEGA BANK (NIG) PLC vs. O.B.C. LTD (2005) 8
NWLR (PT. 928) 547, DASPAN vs. MANGU LOCAL
GOVT. COUNCIL (2013) 2 NWLR (PT. 1338) 203
among other cases were referred to. It was opined that the
evidence established that the review and increase from 1%
to 2.87% was accepted by the Cross Respondent vide
Exhibit CW3 J.
It was asserted that the invoices sent to the Cross
Respondents was based on increased consultancy fees of
2.87% and that the Cross Respondents made some
payments on the said invoices, which was conduct showing
that the Cross Appellant was entitled to payment based on
2.87%. Section 169 of the Evidence Act was referred to, to
the effect that the Cross Respondents were estopped from
contending the contrary.
50
(201
9) LP
ELR-46
442(
CA)
SUBMISSIONS OF THE CROSS RESPONDENTS’
COUNSEL
The Cross Respondents submit that parties are bound by
contracts voluntarily entered into and that it is not the duty
of a Court to make a contract for the parties. The case of
BAKER MARINE (NIG) LTD vs. CHEVRON (NIG) LTD
(2006) 13 NWLR (PT. 997) 276 at 287-288 and FGN
vs. ZEBRA ENERGY LTD (2002) 3 NWLR (PT. 754)
471 at 491 were called in aid. It was asserted that the
agreement between the parties was on payment of 1% as
consultancy fees to the Cross Appellant and that there was
no consensus on the review of the consultancy fee to
2.87%. It was posited that the Cross Appellant having
predicated its invoice on 2.87% did not mean that the Cross
Respondents accepted the review to 2.87%.
RESOLUTION OF ISSUE NUMBER FOUR
The hornbook principle of law is that in order for parties to
be bound by their agreement, they must be ad idem as its
terms. See A-G RIVERS STATE vs. A-G AKWA IBOM
STATE (2011) LPELR (633) 1 at 23-24 and BILANTE
INTERNATIONAL LIMITED vs. NDIC (2011) LPELR
(781) 1 at 23-24. It is not confuted that the parties were
ad idem on the payment of 1% as
51
(201
9) LP
ELR-46
442(
CA)
consultancy fees at the time of their contract in Exhibit
CW1.1. The pertinent question is whether the parties
arrived at a similar consensus on the upward review of the
consultancy fees to 2.87%, consequent upon the extension
and revision of the scope of work under the consultancy.
The Cross Appellant contends that the Cross Respondents
accepted the review and relies, inter alia, on the conduct of
the Cross Respondents in making payment on the invoice
which was based on 2.87% and also on Exhibit CW3 J. Now,
in Exhibit CW3 J, the Cross Respondents while agreeing in
principle on review requested the Cross Appellant to send
the proposal for review and further discussion. This clearly
shows that the parties had not reached any consensus on
the review as the same was to be subjected to further
discussion. Undoubtedly, the upward review of the
consultancy fees to 2.87% remained inchoate.
The Cross Appellant had rendered services under the
consultancy agreement for which it was entitled to
payment. The Cross Appellant raised its invoice for
payment, albeit, predicated on 2.87% as consultancy fees.
The Cross Respondents made some payment on the
invoice.
52
(201
9) LP
ELR-46
442(
CA)
It is beyond disputation that a workman is entitled to his
wages; therefore the fact that some payment was made on
the invoice does not connote an acceptance of 2.87% as the
fees due to the Cross Appellant. It could only have been so
inferred if the payment made was in excess of the agreed
1% that the Cross Appellant was entitled to as consultancy
fees. This has not been shown to be so. I am therefore
unable to agree with the Cross Appellant that the conduct
of the Cross Respondents in making some of the payment
due on the contract amounted to acceptance of 2.87% as
the fees, for which they were estopped by the doctrine of
estoppel from asserting the contrary.
It is a fundamental principle of law that parties are bound
by the terms of their contract and it is not open to one of
the parties in the absence of novation to unilaterally
change or vary the terms of the contract by incorporating
into it one or more terms that had not been agreed upon by
both parties: MAIDARA vs. HALILU (2000) LPELR
(10695) 1 at 19, GAMBAGA s. MBIU (2014) LPELR
(41079) 1 at 17 and ISIYAKU vs. ZWINGIWA (2001)
FWLR (PT. 72) 2096. Any variation of the agreed terms
has to be by mutual
53
(201
9) LP
ELR-46
442(
CA)
consent and there must be offer and acceptance of the
variation for the required consensus ad idem to be present.
See EKWUNIFE vs. WAYNE W. A. LTD (1989) LPELR
(1104) 1 at 13 and UNITY BANK vs. OLATUNJI (2014)
LPELR (24027) 1 at 47-48. The evidence on record does
not bear out the meeting of the minds of the parties and
their consensus on the extension and revision of the scope
of work and the upward review of the percentage payable
to the Cross Appellant as consultancy fees. The parties did
not have a concluded bargain in that regard and so there
was no binding contract for the payment of 2.87% as
consultancy fees to the Cross Appellant. See ATIBA
IYALAMU SAVINGS & LOANS LTD vs. SUBERU (2018)
13 NWLR (PT. 1637) 387 at 404. The lower Court
arrived at the correct decision in this regard when at pages
1622-1623 of Volume 3 of the Records, it held as follows:
“Now the question is whether or not the trail of e-mails
above mentioned are sufficient to amount to a review of the
‘agreement of parties’ in this instance. There is no doubt in
the mind of the Honourable Court that a review of the
agreement was presented by the Defendant to the 1st
54
(201
9) LP
ELR-46
442(
CA)
and 2nd Claimants and that Chris Ugwu informed Bonum of
the ‘agreement in principle’ to a review’ he however
requested in the email of 04/22/09 at 9.24a.m for the
proposal for review and further discussion.
The question is not whether the review is desirable of ‘fair’
or indeed that ‘there was an agreement in principle subject
to approval’ the issue is was there indeed a consensus ad-
idem between the parties as to an increase in the
consultancy fees 1% to 2.87% as contended in the counter-
claim?
The Honourable Court has carefully considered the entirety
of facts before it as regards the ‘review’ and finds that
indeed no consensus was reached between parties as
regards to the review of its consultancy fees from 1% to
2.87% as attested by the Defendant/Counter-Claimant.
There is also clearly no evidence of agreement of parties as
to the extension and revision of scope of work.
From the totality of evidence before this Honourable Court,
there i s there fo re no bas i s t o ho ld tha t the
Defendant/Counter-Claimant is entitled to consultancy fees
2 . 8 7 % o f a l l g r o s s a m o u n t s a p p r o v e d p e r
change/variation order but to 1% of all gross amounts
approved per change/variation."
55
(201
9) LP
ELR-46
442(
CA)
The evidence adduced by the Cross Appellant did not
establish entitlement to be paid 2.87% as consultancy fees;
it consequently becomes of no moment as it relates to the
contention in issue number three above, whether Exhibit
CW1.11 was wrongfully admitted in evidence or not since
without the said exhibit, the decision of the lower Court
would have been the same since the evidence did not
establish the meeting of the minds of the parties.
Indubitably, this issue is resolved against the Appellant.
Every blade of grass in the field of this judgment has been
tended and groomed. Even though issue number two was
resolved in favour of the Cross Appellant, the other issues
were resolved against it. In the general scheme of the
appeal, the appeal succeeds in part on account of setting
aside of the costs of N500, 000.00 awarded in favour of the
Cross Respondents by the lower Court. The parties are to
bear their respective costs of this appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I
have had the opportunity to read in advance the lead
judgment of my
56
(201
9) LP
ELR-46
442(
CA)
learned brother, UGOCHUKWU ANTHONY OGAKWU,
J.C.A., and I am in agreement with the judgment.
I have nothing more to add.
I also abide by the consequential order in the lead
judgment.
TOBI EBIOWEI, J.C.A.: I was afforded the opportunity of
reading in draft the judgment just delivered by my learned
brother UGOCHUKWU ANTHONY OGAKWU, J.C.A.
I agree with the reasoning and conclusion reached therein
in the said judgment.
57(201
9) LP
ELR-46
442(
CA)