Akinwunmi O. Alade Vs Alic (Nigeria) Limited & Anor (2011)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA JSC.

The Appellant as Plaintiff sued the Respondents as Defendants jointly and /or severally at Oyo State High Court, Ibadan claiming as follows: “The sum of N3,296,528.08 (Three Million, two hundred and Ninety-six thousand five hundred and twenty eight Naira eight kobo) as particularized hereunder being damages suffered as a result of the 1st defendant’s breach about March, 1988 of partnership agreement entered into in Ibadan between the Plaintiff and the 1st defendant on 1st July, 1987, and which breach was masterminded, procured and PAGE| 2 instigated by the 2nd defendant as agent of the 1st defendant in fraud (sic) of the plaintiff.” In proof of his case, the Appellant called four witnesses and testifying himself as the fifth witness. He tendered six exhibits that is, Exhibits “P1 – P6.” On the other hand the Respondents, in defence of the suit, called three witnesses. The 2nd Respondent testified as the 4th witness Three Exhibits, D1-D3 were also tendered. At the end of the trial the learned trial Judge entered judgment in favour of the Appellant and against the Respondents jointly and severally for:- “1. The refund of loan capital of N240, 000.00 procured for the 1st defendant and guaranteed by the Plaintiff through Marine and General Insurance Company Limited. 2. The sum of N70,000.00 (Seventy thousand naira) being the Plaintiff’s 40% agreed share of profits on business transacted with Kopek Limited between 1st December, 1987 to 18th February, 1988. 3. 10% compound interest per annum on the N240 000.00 loan obtained from IBWA from 1988 up till today 10th June, 1991 and 5% interest thereafter until the total sum is paid. 4. Claim for damage is dismissed.” The counter claim of the respondents was dismissed. The respondents being dissatisfied with this judgment, appealed against same to the Court of Appeal, Ibadan Division on eight grounds. The Court of Appeal in a unanimous decision set aside judgment of the trial Court and dismissed the Appellant’s claims. The Appellant was not satisfied; he has come on further appeal to this Court on three grounds. The parties have through their Counsel filed and exchanged their briefs of argument. In the Appellant’s brief of argument prepared by Babatunde Kasunmu Esq., the following two issues were formulated for determination: “1. Was the Court of Appeal right in dismissing the appellant’s claim against the Respondents? (a) having earlier held, that the Plaintiff’s claim in special damages for loss of profit was particularised and proved and (b) having allowed the respondent’s appeal in part by virtue of (a) above, PAGE| 3 2. Whether the Respondents, can be held jointly and severally liable for damages occasioned as a result of a breach (fraudulent or otherwise) of the partnership agreement between the Appellant and the 1st Respondent?” On behalf of the Respondents Omokayode A. Dada Esq. formulated the following three issues for determination in the Respondents brief filed on 22nd October, 2009. 1. Whether having regards to the fact that the Court of Appeal allowed the appeal in part, it was right for the appellant’s claims to be dismissed in its entirety (Ground 1 of the Notice of Appeal) 2. Whether the Court of Appeal was justified in law in holding that the Appellant did not prove beyond reasonable doubt allegation of fraud against the 2nd Respondent (Ground 2 of the Notice of Appeal) 3. Whether the Respondents can be held liable jointly and severally for damages allegedly suffered by the Appellant arising out of breach of Partnership agreement between the Appellant and the 1st Respondent’ (Ground 3 of the Notice of Appeal) Let it be noted that the learned counsel for the Appellant having been served with the Respondent’s brief, went further to file a reply brief On 28th September, 2010 this appeal was heard. Learned Counsel for the parties adopted their briefs of argument while the Learned Counsel for the Appellant has urged this Court to allow the appeal learned counsel for the Respondents, on the other hand, has urged us to dismiss the appeal. In my consideration of the appeal, I am of the view that Appellant’s two issues would suffice to dispose of the appeal, I shall therefore proceed hereafter, shortly to consider the Appellant’s two issues. It is however, necessary that the facts leading to the dispute, out of which this appeal arose, be carefully examined and exposed. I have already set out the Appellant’s claim. A summary of his claim, as can be gleaned from the pleadings, is that he entered into a partnership agreement with the 1st Respondent to trade on produce for the 1987/88 season. The profit accruing from the partnership was to be shared between the Appellant and the 1st Respondent on a 40% and 60% basis, respectively. For this reason, the Appellant procured a loan of N240,000.00 from the international Bank for West Africa(IBWA)for the 1st Respondent for the take off of the partnership. The loan was guaranteed by the Marine and General Insurance Company Limited upon an Indemnity PAGE| 4 given by the Appellant to the Insurance Company. It is the Appellant’s case that the 2nd Respondents thereafter fraudulently failed to disclose the 1st Respondents prior indebtedness to the International Bank for west Africa and this consequently resulted in a substantial sum of loan procured to be deducted from the 1st Respondent’s account which it once deposited with the bank. There was further diversion by the Respondents of the sum of N453.584.50 into the 2nd Respondent’s account and non-disclosure of the sum of N165,000.00 from a produce purchaser under the partnership. The Appellant further claimed that the profit, which occurred to the partnership was over N1,000,000,00 (One Million naira only) and that his 40% share of the profit was therefore N436,649,44. Due to the above facts and inability of the Appellant to realize anticipated profit, the Appellant filed an action for damages. On their part, the Respondents filed their statement of defence and counter claimed for the sum of N25.000.00 being moneys obtained from the 1st Respondent on account at his request and which sums were never retired to the Accounts or refunded to the 1st Respondent. On the 1st issue learned counsel for the Appellant has noted that the learned trial judge entered judgment in favour of the Appellant for N70,000.00 being his share of the profit. It is therefore submitted that having answered this issues in favour of the Appellant the court below should have therefore upheld the judgment of the learned trial judge on profit as contained in the second order of that court at page 67 of the Record. Learned counsel has urged this court to hold that the court below was wrong on dismissing the Appellant’s claim against the Respondents, particularly the 1st Respondent after having held that the Appellant’s claim in special damages for loss of profit was particularized and also having, by virtue of this, allowed the Respondents’ appeal in part only.

SC. 169/2001