A.I.C. Limited V. Mannesmann-anlagendau Ag & Anor (1993)

LawGlobal-Hub Lead Judgment Report

IBRAHIM KOLAPO SULU-GAMBARI, J.C.A.

T

his is an appeal from the ruling of the Hon. Justice Ligali A. Ayorinde of the High Court of Lagos State, delivered on the 23rd day of March, 1989, upon an application before the court in which the respondents herein prayed for the order of the High Court striking out Suit No. LD/264/88 on the grounds –
(i) that the trial court had no jurisdiction to entertain the suit:
(ii) that the action is res judicata; and
(iii) that the action is frivolous, vexatious and constitutes an abuse of court process.

The background facts of the case on appeal is as follows: The plaintiff/appellant secured a contract for the construction of oil pipeline for the 1st defendant, a German Company, from the 2nd defendant – Nigerian National Petroleum Corporation (NNPC) in which the appellant earned some commission.
Due to the default of the 1st defendant in paying the accrued commission to the appellant, an action was instituted by the appellant in Dusseldorf in Germany claiming the commission due. The suit filed in Dusseldorf was heard and determined against the plaintiff/appellant and it took appropriate step to appeal in Germany accordingly. While the proceedings in Germany was still pending, another suit was initiated and commenced in the Lagos High Court in which the plaintiff in the Lagos High Court purported to show that its claim in the Lagos High Court is not inclusive of the amount claimed before, the Dusseldorf Court in Germany. In other words, the plaintiff was suing for the amount due under the Contract but which was not covered by the claims in Germany.

Furthermore, the plaintiff/appellant claimed also in alternative the said sum from the 1st defendant as quantum meruit and joined the 2nd defendant to secure that payment due from the 2nd Defendant to the 1st Defendant is not released by the 2nd Defendant pending the determination of the Lagos High Court suit.

The learned trial judge of the Lagos High Court held that the matter in litigation before him had been adjudicated upon by the Dusseldorf Court in Germany as the claim arose out of the same contract between the plaintiff/appellant and the 1st defendant; that the addition of the 2nd defendant as a party in the Lagos High Court case made no difference and that he would not allow the joinder of the 2nd defendant to becloud the issue because the cause of action (according to the learned trial Judge) was same in the action before his court and as in the German Court.

The plaintiff’s claim in the German Court is as follows:-
“1 (a) It should be determined that the defendant is obliged to pay a commission to the plaintiff of 5% on all amounts paid by NNPC to the defendant arising from the letter of intent of 15/19/20 June 1984 agreed between the defendant and the NNPC, with the exception of  amounts paid in respect of freight, packing and customs duties.
(b) It should be determined that the defendant is obliged to pay a commission to the plaintiff of 5% from 26 March 1987 on all amounts paid by NNPC to the defendant arising from the ESCRAVOS-LAGOS GAS PIPELINE PROJECT – CONTRACT “A” WESTERN GATHERING SYSTEM AND WARRI COMPLEX CONTRACT ADDENDUM I dated 26 March 1987 between the defendant and the NNPC, with the exception of amounts paid in respect of freight, packing and customs duties.
2(a) The defendant should be ordered to pay the plaintiff -sterling 20, 305,18 plus interest at 8% from 1 October, 1981.
(b) the defendant should be ordered to pay the plaintiff Naira 163,074.03 plus interest at 8% from 1 October, 1981.
3(a) The defendant should be ordered to pay the plaintiff Naira 53,205.52 plus interest at 10% from the time this amendment to the petition was served (4 December 1986).
(b) The defendant should be ordered to pay the plaintiff DM 54,904.31 plus interest at 10% from the time this amendment to the petition was served.
(c) The defendant should be ordered to pay the plaintiff -sterling 113.772.17 plus interest at 10% from the time this amendment to the petition was served.
(d) The defendant should be ordered to pay the plaintiff US $ 4.326,25 plus interest at 10% from the time this amendment to the petition was served.
(e) The defendant should be ordered to pay the plaintiff a further Naira 71,240.53 plus interest at 10% from the time this amendment to the petition was served.
(f) The defendant should be ordered to pay the plaintiff a further DM 890,287.09 plus interest at 10% from the time this amendment to the petition was served.
(g) The defendant should be ordered to pay the plaintiff a further ?’9197 Sterling 17,122,63 plus interest at 10% from the time this amendment to the petition was served.
(h) The defendant should be ordered to pay the plaintiff a further US ? 29,976,20 plus interest at 10% from the time this amendment to the petition was served.
4(a) The defendant should be ordered to pay the plaintiff 10% interest on Naira 38,680.55 for the time from 19 April 1985 to 4 December 1986.
(b) The defendant should be ordered to pay the plaintiff 10% interest on US $ 2,118,05, ?’9197 sterling 85,936.40, DM 20,593,90 and Naira 3,148.35 for the time from 1 October 1985 to 4 December 1986.”

The learned trial judge of the Lagos High Court proceeded to dismiss the claims both against the 1st and the 2nd defendants which is now the subject of appeal before this court. The appellant filed two grounds of appeal which are as follows:-
“I. The learned trial Judge erred in law in holding that the principle of Res Judicata was applicable to the facts of this case when having regard to the fact that the claim in the instant case is also grounded on quasi – contract, (that is a claim on quantum meruit), the cause of action could not be said to be the same as that before the court in Germany.
“2. The learned trial Judge erred in law when it held as follows:-
‘There are strong circumstances why the application of the 1st defendant should be granted. In the 1st place, it has expended money in Dusseldorf on litigation or suit filed by the plaintiff and which the plaintiff lost. The plaintiff’s appeal is still pending in the country. There is not one good reason advanced by the plaintiff against the application. The question is not that this court has no jurisdiction but it will not exercise it in the circumstance enumerated in Brandson test”.

PARTICULARS OF ERROR
The circumstances and factors taken into account by the learned trial Judge are irrelevant in determining the issues raised to wit, res Judicata and whether the action in Nigeria is vexatious and an abuse of the judicial process”.
The relief, as claimed in the appeal before us, is “to allow the appeal and set aside the decision of the trial court”.

The only issue postulated by the learned counsel for the appellant, which I too accept as appropriate, and in the absence of any other suggestion by the respondents, is sufficient to determine and dispose of the appeal. It reads:-
Whether or not the trial judge was right in applying the doctrine of res judicata to bar the plaintiff from prosecuting the present claim in Nigeria.”

When the appeal was ripe for hearing, it was discovered that the respondents did not or failed to file their briefs of argument. The appellant, abundnatia cautela, filed an application, the notice of what was served on the respondents, requesting for a date to be set for the hearing of the appeal on the brief filed by it. On the date set for the appeal to be taken, the appeal was heard on the brief filed by the appellant and judgement was accordingly reserved.

The respondents apart from not filing their briefs have also failed to appear on the date fixed for the hearing of the appeal to present their arguments. Rule 9(e) of the Rules of this Court provides as follows:-
“When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”
The position of the law is very clear and it is that where the respondent, who has been served with the appellant’s brief and notice of hearing of the appeal has filed no respondent’s brief, and/or has failed to appear to present his appeal, his portion of the appeal would be treated as having been argued without any further obligation to hear the respondent.
The respondents in the instant case have shown no interest from the inception of the case in this court and must abide by the consequence that may be reached upon the consideration of the brief filed by the appellant – See Agagu v. Dawodu (1990) 7 NWLR (Pt.160) 56; Ebenezer Nwokoro & Ors v. Titus Onuma (1990) 3 NWLR (Pt.136) 22 at 32 and Patrick Okoye v. Nwulu (1988) 2 NWLR (Pt.76) 359.

Learned counsel for the appellant submitted that res judicata should not apply to the action instituted in Lagos. He postulated that for res judicata to apply, the cause of action in the instant case must be same as in the previous case relied upon as a bar to the present action. He pointed out that the plaintiff’s action in Germany was based on the contract dated 14th March, 1980 and that in the suit before the Lagos High Court, the amount claimed, though from the same contract, was not covered by the claims in Germany; and also that in the action in Lagos, the plaintiff claimed on quantum meruit which is a claim in quasi contract.

Learned counsel for the appellant went further to submit that a claim made on quantum meruit is not based on the contract. It is independent of the original contract between the parties but that it is imposed by law so that the defendant would not disappoint the plaintiff and is obliged to pay reasonable remuneration for the work done by the plaintiff so that he is not deprived of the fruit of his labour. He pointed to the observation in Chesire & Fifoot (11th Edition) 650 which reads:-

“6 CLAIMS ON A QUANTUM MERUIT
The common law has long provided a convenient remedy when the plaintiff seeks, not a precise sum alleged to be due to him, but a reasonable remuneration for services rendered. He is then said to sue on a quantum meruit. Confusion has been caused in classifying the cases to which this remedy applies through the dual character with which it is invested. Sometimes it operates as a legitimate remedy in contract, and sometimes as it quasi-contractual remedy. Its incidence thus cuts across the logical distinction between contract and quasi-contract.
Whether or not the claim in quantum meruit is, in any particular case, alternative to an action for breach of contract, it is clear that it is itself independent of the original contract between the parties and is sustained, not because it represents an agreement reached between the parties, but because the law will compel the defendant not to disappoint the plaintiff of the fruit of his labour.”

He finally submitted that the reasons advanced by the learned trial judge that he would not allow the appellant to have a second bite of the cherry, and the fact that the 1st defendant/respondent has expended money in defending the claims in Germany for which the appellant has appealed in the German Court, are merely extraneous consideration, irrelevant for the purpose of applying the doctrine of res judicata.

It is instructive to peruse the plaintiff’s claim before the Lagos High Court in order to discover whether it is same claim as formulated in the German Court. The plaintiff claimed as follows:-
“The plaintiff’s claim against the 1st Defendant 5% of the various sums set out in the Schedule to this writ less the amount claimed by the plaintiff from the Defendant in suit 390/22A/84 now pending before the District Law Court No.9 in Dusseldorf (particulars of which are set out in the Statement of Claim) being the amount of commission payable to the plaintiff pursuant to an agreement entered into in Lagos and dated 14th March, 1980 for undertaking and taking all necessary efforts in assisting the 1st Defendant in securing the contract for the 2nd defendant Escravos Lagos Pipeline and Compressor Station.
2. In the alternative, the plaintiff claims the said sum from the 1st Defendant as upon a quantum meruit.
3. In the further alternative, the plaintiff claims against the 1st Defendant is for an account to be taken for commission due to the plaintiff in respect of the agreement referred to in paragraph I hereof and for an order for the payment of the monies found to be due to the plaintiff on the taking of the account less the amount already claimed in Suit 390/224/84 referred to above.
4. An injunction restraining the 2nd Defendant from paying over to the 1st Defendant the amount being claimed in paragraph I hereof and an order that the amount be deducted from the contract sum and withheld by the 2nd Defendant pending the determination of this action.
5. Interest on the above sum at the rate of 13% per annum from 10/4/87 until payment thereof of the sum claimed.”

These claims involved a sum in excess of the amount claimed in Germany as the commission which are due or might have accrued on each of the job so awarded to the 1st defendant; The appellant also claimed for quantum meruit as an alternative claim. Claim (iii) asked for the account of the work done less the amount already claimed in suit 390/224/84. Claim (iv) is an injunction restraining the 2nd defendant from paying over to the 1st defendant the amount due which represents the amount other than the one claimed in the Germany Court.

It became clear that the learned trial Judge did not consider all other claims enumerated above which are not the same as the claims made by the plaintiff in the German Court. The learned trial judge did not allude to the claim in respect of the alternative claims made by the plaintiff; one was a claim for quantum meruit which is but a separate claim giving rise to a separate cause of action. It is for an obligation to pay reasonable remuneration for work done whether there is or not a binding contract between the parties and it is mainly imposed by the rule of law and not by inference of facts from acceptance of services – See the case of Craven Ellis v. Cannons, Ltd (1936) 2 K.B. 403).

The 2nd alternative claim was for an account to be stated of all money made by the 1st defendant from the agreement entered into on the 14th day of March, 1980 less the amount already claimed in suit 390/224/84 claimed in German Court.

It is also significant to note that a claim for a grant of injunction restraining the 2nd defendant from making further payment to the 1st defendant was not even considered or touched by the learned trial judge. This relief of injunction is a separate cause of action which the learned trial judge ought to have adverted to before concluding outrightly that res judicata applied. Where there are more than one causes of action against the same person or against distinct persons, judgments in the previous trial court could not be said to have extinguished the right of the plaintiff to sue on other items even though the causes of action might have been rooted or based on the same agreement. In situations where money can be due from time to time and commission on such money would also by necessary implication be due from time to time, judgment in an early action upon the amounts already due should not estop the plaintiff from suing subsequently for commission on the amounts becoming due after the first action.

A plea of res judicata pre-supposed that (i) the judgment in question is a judicial decision duly pronounced by a court/tribunal having competent jurisdiction in that behalf; (ii) the judgment was final; (iii) it was or involved a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised; (iv) the parties to the judicial decision were the same persons as the parties to the proceedings in which estoppel is raised and in respect of the same cause of action or that the decision was in rem. See Ajogogo v. Adegoriola (1961) WNLR 177.

In the case before the trial court, parties are not the same. A 2nd defendant was joined so as to secure the payment of the commission due from the 1st defendant to the plaintiff in a situation in which commission would become due as and when payment becomes payable. It might have also helped to secure the judgment debt being paid by the 1st defendant who was not ordinarily resident in Nigeria if any money accruing to be paid to the 1st defendant was not paid by the 2nd defendant until the matter between the plaintiff and the 1st defendant is determined and disposed of. The claim in quantum meruit is also not the same cause of action as that adjudicated upon in Dusseldorf in Germany. Where the issue determined does not involve a determination of the issue raised by a later proceedings between the same parties, such judgment is not res judicata the later proceedings – See my judgment in Fabunmi v. Oyewusi (1990) 6 NWLR (Pt. 159) 728 at 742.

I refer to the case of Agbonmagbe Bank v. C.F.A.O. (1967) NMLR 173 to illustrate how one transaction can produce more than one cause of action and each cause of action capable of being litigated upon separately unless it ought to be consolidated and heard together for convenience of the court. In that case, the C.F.A.O. had a customer, Madam “A” who gave the Company a number of cheques drawn on the Agbonmagbe Bank, Shagamu between 7th August, 1957 and 5th October, 1957 amounting to ?10,197.8:40; the Company handed the cheques to the Bank of West Africa Ltd. for collection, and the bank sent them to the headquarters of the Agbonmagbe Bank at Ebute Metta which returned the cheques dishonoured on 10th October, 1957 in a bunch.

The Company wrote the Agbonmagbe Headquarters complaining that the delay had caused them loss for which the Company held the Bank responsible, but received no reply. The C.F.A.O. sued Madam “A” and obtained judgment for what she owned the Company ?1 3,829.10:10d which included the amount of the cheques. The Company managed to collect ?250 of the amount from Madam “A”.
The Company thereupon sued the Agbonmagbe Bank for the amount of the cheques.

It was held that the judgment against Madam A was no bar to a suit against the bank, having regard to the fact that the claim against Madam “A” was based on contract while that against the Bank was based on tort. There were two separate causes of action against distinct persons and the judgment against Madam “A” did not extinguish the right of the Company to sue the Bank even though it was in respect of the same cheques.

In another case, …(1985) 12 NLR 40, where the plaintiffs sued for a sum they called “Balance due on our undertaking” to pay a sum in monthly instalments, and obtained judgment, the words “balance due” in the earlier action meant only the total of the instalmentals then due and unpaid, and the judgment in the earlier action did not estop the plaintiffs from suing subsequently for instalmentals accrued since the earlier action; it did estop them from suing for instalments accrued prior to the first action which had not been claimed in the writ in the first action.

In his argument in appellant brief learned counsel for the appellant directed our attention to the notice of intention to contend that judgment should be affirmed on ground other than those relied upon by the court below filed by the respondents and attempt to reply to the points raised in the said notice. The notice contained the following:-
“(1) That the court below did not decide all the issues canvassed before it on the 1st respondent’s application dated 6th May, 1988 to dismiss the appellant’s suit.
(2) That the lower court failed to decide whether or not the appellants are bound by the foreign jurisdiction clause contained in the contract between the appellants and the 1st respondent.
(3) If so, whether the appellants are not precluded from presenting a claim before the Nigerian Courts.
(4) In any event, whether the Nigerian Court should not in a deserving case stay proceedings to give efficacy to the foreign forum chose by the parties.”

Learned counsel for the appellant contended here that a respondent complaining that a trial judge did not decide one or any of the issues referred to the court for adjudication and determination can only raise such complaint in form of a substantive notice of cross-appeal and not by a respondent’s notice. He cited the case of Williams v. Daily Times Nigeria Ltd. (1990) 1 NWLR (Pt.124) 1. While it is true that a respondent seeking to set aside a finding which is crucial “and fundamental to a case can only do so through a substantive cross-appeal and not by a respondent’s notice to affirm or vary the judgment on other grounds L.C.C. v. Ajayi (1970) 1 All NLR 291 at 296 and Eliochin v. Mbadiwe (1986) 1 NWLR (Pt.14) 47 the short answer to this point, however, is that since there was no brief of argument filed by any of the respondents, the matter so raised calls for no decision by this court.

In the result, I am of the firm view that the learned trial judge was wrong to have held, as he did, that the plaintiff/appellant was precluded from bringing the suit against the 1st and 2nd defendant in Lagos, having prosecuted a suit against the 1st defendant in Dusseldorf in Germany. He was equally wrong to have dismissed the suit in its entirety. He peremptorily dismissed the suit before him without examining if the claims in the Lagos suit is the same as the one in the German Court. He has failed to examine the whole facts placed before him in coming to that conclusion and I am inclined and would, indeed, hasten to award the reliefs sought by the appellant in this appeal which is to the effect that the appeal is hereby allowed and the decision of the trial court set aside. I award the costs of N1,000.00 in favour of the appellant.

Other Citations: (1993)LCN/0153(CA)