Dangote Cement Plc V. Ekeson Salins Oil & Gas Limited & Ors (2003)
LawGlobal-Hub Lead Judgment Report
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
This is an appeal against the judgment of the High Court of Anambra State delivered in suit no. 0/9/2018 on 17/7/2018 by Honourable Justice M. N. O. Okonkwo. The facts of this case as garnered from the record of appeal is that a vehicle which the respondents herein alleged to be the appellant’s vehicle was involved in an accident in Cross-River State with the 1st respondent’s vehicle.
The respondents instituted suit no. HK/10/2017 in the High Court of Cross-River State, Akampa Judicial Division and claimed a sum of N527,000,000.00 (Five Hundred and Twenty-Seven Million Naira) being special and general damages for the loss of the 3rd and 4th respondents’ brothers, cost of the 1st respondent’s Mack Truck with registration no. ENU 537 XP and other reliefs. Pursuant to the agreement of both parties to settle the matter, terms of settlement signed by both parties was filed in the Court. According to the record of proceedings of the High Court Cross- of River State on page 27 of the record of appeal, the terms of settlement which was given suit no. HK/MSC8/2017 and dated 13/9/2017 was filed on 15/9/2019.
On 25/10/2017 when the suit came up before the Honourable Justice Akon Ikpeme, the appellant’s counsel informed the Court that terms of settlement had been filed but that certain clarifications needed to be made concerning the terms of settlement. On 16/12/2017 when the suit came up again in Court, the appellant’s counsel applied to withdraw the terms of settlement on the ground that the appellant had discovered fresh facts that substantially changed the liability and propriety of the joinder of the appellant in the suit.
The respondents’ counsel opposed the application to withdraw the terms of settlement. The Court ruled in favour of the appellant and struck out the terms of settlement. Before that day, the appellant had filed a motion on notice on 7/11/2017 seeking an order to strike out the names of the appellant and 2nd defendant sued as ”Unknown Driver of 1st Defendant” from the suit for being wrongly sued.
In paragraph 7 of the affidavit in support of that application, the appellant stated that:
”When the matter was brought before the Recovery Unit of the 1st defendant in the course of processing the settlement payment. It was discovered that the vehicle in question does not belong to the 1st defendant as it does not form part of the fleet of tankers owned by the 1st defendant on record. Annexed hereto as EXHIBIT DAN 1 is the list of all the tankers belonging to the 1st defendant on record.”
There was no response by the respondents to the motion. On 24/1/2018 when the suit came up in Court, the respondents’ counsel applied to withdraw the suit on the ground that the parties have reached an agreement which they, that is the respondents wanted to enforce. The appellant’s counsel did not oppose the application but expressed reservations about the reason given for the withdrawal.
He stated that the real reason for the withdrawal of the suit was that the appellant filed a motion challenging its joinder in the suit. The Court granted the application to withdraw the suit and struck it out. Before that day, the respondents had filed the originating summons with suit no. O/09/2018 in the High Court of Anambra State, Onitsha Judicial Division on 16/1/2018. The respondents sought the determination of the following questions:
1. Whether the failure of the defendant to comply with the clear and unambiguous terms of settlement agreement between it and the plaintiffs amount to a breach of contract?
2. Whether the plaintiffs are entitled to the reliefs they are seeking?
They sought the following reliefs:
1. A DECLARATION that pursuant to the ”Terms of Settlement” agreement dated the 13th day of September, 2017 between the plaintiffs and defendant, the defendant is bound by the terms of the said settlement agreement.
2. AN ORDER compelling or directing the defendants to forthwith honour the said terms of settlement agreement by paying the plaintiffs the sum of N6,000,000.00.
3. GENERAL DAMAGES in the sum of N500,000,000 (Five Hundred Million Naira) only.
4. N10,000,000 (Ten Million Naira) as cost of legal fees/cost of the present litigation.
5. 35% interest per annum (or prevailing CBN interest rate) of the judgment sum from date of delivery of judgment until final liquidation of the judgment sum.
Parties filed and exchanged all necessary processes. After hearing both parties, the Court below answered the questions presented for determination in the affirmative and entered judgment in favour of the respondents as follows:
I am of the strong view that the failure of the defendant to comply with the clear and unambiguous terms of settlement agreement between it and the plaintiffs amount to a breach of the said terms of settlement.
The plaintiffs, are in the circumstance, entitled to judgment in the following terms:-
1. Reliefs 1 and 2 are hereby granted.
2. N150,000,000.00 (One Hundred and Fifty Thousand Naira) general damages against the defendant in favour of the plaintiffs.
3. N1,500,000:00 (One Million Five Hundred Thousand Naira) as cost of legal fees/cost of the present litigation.
4. 35% interest per annum (or prevailing CBN interest Rate) of the judgment sums from date of delivery of judgment until final liquidation of the judgment sums.?
Being dissatisfied with the judgment, the appellant filed a notice of appeal against the judgment on 23/7/2018.
Pursuant to the appellant’s motion filed on 28/11/2018, the amended notice of appeal and amended appellant’s brief filed on 28/11/2018 were deemed as properly filed and served on 14/1/2019. The respondents’ consequential amended joint brief was filed on 13/2/19. Appellant’s reply brief was filed on 21/2/2019. Both parties adopted their respective briefs on 25/2/2019.
The respondents filed a notice of preliminary objection dated and filed on 11/2/2019. The objection is that this Court has no jurisdiction to entertain this appeal as presently constituted on the grounds that Rule 29(2) of the Rules of Professional Conduct (RPC), 2007 was not complied with and the notice of change of counsel filed to inform this Court about the change of counsel is invalid.
The argument in support of the objection is incorporated into the respondents brief. The respondents’ counsel submitted that neither Paul O. Ebiala nor Mumini Bamidele file a valid notice of change of counsel as mandatorily prescribed by Rule 29(2) of the Rules of Professional Conduct (RPC) 2007. He referred to OKOH & ORS. V. NWOBODO & ANOR. (2017) LPELR 42726 (CA), AGORO V. AROMO-LARAN & ANOR. (2011) LPELR- 8906 (CA), AFRICAN TIMBER & PLYWOOD NIG. LTD. & ORS. V. OGODO & ANOR. (2013) LPELR-21013 (CA). He further submitted that the notice of change of counsel filed on 12/11/2018 seeking to change the appellant’s counsel from Paul Ebiala & Associates’ to Rickey Tarfa & Co. is grossly incompetent as there is no legal practitioner enrolled to practice law in Nigeria known as Messrs. Paul Ebiala and Associates’ or Messrs Rickey Tarfa and Co.
He contended that the amended notice of appeal and amended appellant’s brief cannot stand as Mumini Bamidele cannot properly file and sign the amended notice of appeal and amended appellant’s brief without complying with the condition precedent stipulated by law and the former counsel has not given notice of change of counsel. He urged the Court to strike out the notice of change of counsel, the amended notice of appeal and the amended appellants’ brief.
In response to the above submissions, the appellant’s counsel submitted that Order 2 Rule 13 of the Court of Appeal Rules, 2016 provides for the procedure for notification of change of counsel and not Rule 29(2) of the Rules of Professional Conduct 2007 (RPC). He further submitted that notification of change of counsel is for purposes of service of Court processes and the respondents have consistently been serving processes on the respondents through the address provided by counsel and stopped serving the former counsel.
Counsel contended that the appearance of the new counsel in addition to the notice of change of counsel and the processes filed by the new counsel constitute proper notice to the Court and raise a presumption that the counsel has the authority to represent the appellant. He referred to ADEWUNMI V. PLASTEX LTD. (1986) 3 NWLR (PT. 32) 767, TUKUR V. GOVT. OF GONGOLA (1988) 1 NWLR (PT. 68) 39, N. U.R V. N. R. C. (1996) 9 NWLR (PT. 473) 490 AT 503 (D-H). He submitted that Section 29(2) of RPC cannot override the provisions of Section 36 of the Constitution on the right to counsel of one’s choice. He referred to ATT. GEN. (FEDERATION) V. ABUBAKAR (2007) ALL NWLR (PT. 375) 476 (G).
He further submitted that the contention of the respondents that the notice of change of counsel is invalid because law firms were mentioned in the notice is technicality taken too far when the amended notice of appeal and amended appellant?s brief were properly signed by a legal practitioner who is enrolled to practice law in Nigeria.
RESOLUTION:
Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunal established by law in the determination of his civil rights and obligations. It is settled by a plethora of cases that implicit or implied in the constitutional right to fair hearing is the right of litigant to engage a counsel of his choice for the prosecution of his case or in defence of the case against him. It is also settled that the right to fair hearing include not only the right to engage counsel of one’s choice but also the right to change counsel at any stage of proceedings. See UNITY BANK PLC V. OLATUNJI ESQ (2014) LPELR-24027 (CA) AT 37-38, ONWUDINJO V. THE STATE (2014) LPELR-24061 (CA) AT 37-38, GUTING V. DAVWANG (2013) LPELR-21921 (CA) AT 54-55 (G-G).
By virtue of Rule 29(2) of the RPC and Order 2 Rule 13 of the Court of Appeal Rules, 2016, where a party changes his counsel in any proceeding before the Court, it is the duty of both the old and new counsel to inform the Court of the change of counsel. Rule 29(2) of the RPC provides that:
(2) ‘Where in litigation, a client changes his lawyer, both the old lawyer and new lawyer shall give notice of the change to the Court.’
Order 2 Rule 13 of the Court of Appeal Rules, 2016 provides that:
“Where any person has given the address of a Legal Practitioner as his address for service and the Legal Practitioner is not, or has ceased to be instructed by him for the purpose of the proceedings concerned, it shall be the duty of the Legal Practitioner to inform the Registrar as soon as may be practicable that he is not no longer authorized to accept service on behalf of such person, and if he omits to do so he may be ordered to personally pay any costs occasioned thereby.”
See OKOH & ORS. V. NWOBODO & ANOR. (SUPRA), AGORO V. AROMO-LARAN & ANOR. (SUPRA), AFRICAN TIMBER & PLYWOOD NIG. LTD. & ORS. V. OGODO & ANOR. (SUPRA), PDP & ORS V. DAYO & ANOR. (2013) LPELR-20794 (CA) AT 26 (F-G).
In the instant case, the new law firm engaged by the appellant filed a notice of change of counsel on 12/11/2018. The notice indicated that the appellant has now engaged the firm of Rickey Tarfa and Company in place of Paul Ebiala & associates. The grouse of the respondents’ counsel is that the notice of change of counsel is invalid because the firms of Rickey Tarfa and company and Paul Ebiala and Associates are not qualified legal practitioners as defined under Legal Practitioners Act.
It is clearly stated on the memorandum of conditional appearance on page 19 of the record that Paul O. Ebiala, Vievie Ne Antifon, Ibete Ubi Ibete and Namso Jeremiah Etok were appellant’s counsel and that they practice their legal profession in the firm of Paul Ebiala & Associates (Trinity Chambers). It is also clear on the face of the notice of change of counsel filed by the appellant’s counsel that Rickey Tarfa SAN, Andrew Malgwi, Frank Mbonye and Mumini Bamidele are all practicing their profession in the firm of Rickey Tarfa and Company. There is no doubt that those names are law firms consisting of legal practitioners enrolled in the Supreme Court to practice law in Nigeria.
The name Paul Ebiala and Associates or Rickey Tarfa and Company connotes a corporate existence or a business name under which a legal practitioner or group of legal practitioners listed under those names practice their profession. It is settled that a firm of legal practitioners is not the same as a person registered and enrolled at the Supreme Court to practice law.
However, I am of the firm view that as a corporate or legal entity, a firm of legal practitioners has the capacity to take briefs from its clients in its corporate or business name. In my view taking a brief in the name of a firm enables any legal practitioner practicing in that firm to prepare and sign a legal document as required by law. There is a world of difference between engagement of a law firm consisting of several practitioners and signing of legal document or Court processes. It is my view that for the purpose of compliance with the requirement of Rule 29(2) of RPC and Order 2 Rule 13 of the Court of Appeal Rules, 2016, notice of change of counsel in the name of a law firm signed by a legal practitioner known to law is valid.
Such notice enables or entitles any legal practitioner practicing in the law firm to prepare and sign processes and appear in Court. The alternative will be that a notice of change of counsel has to be filed each time a particular legal practitioner whose name is not on record is to appear in the case even though from the same law firm briefed by the litigant. That in my view is an absurdity. For these reasons I hold that the notice of change of counsel from Paul Ebiala and Associates to Rickey Tarfa and Company signed by a legal practitioner known to law is valid.
Even if the notice of change of counsel is not valid, we cannot close our eyes to the fact that Mumini Bamidele has appeared in Court for the appellant, signed and filed processes which are before us. The respondents are aware of the change and have exchanged processes with the new firm of legal practitioners. In PAM V. ANPP (2007) LPELR-9000 (CA) AT 33-36 (E-A) and OKE & ANOR V. U.B.A. PLC & ANOR (2015) LPELR-24827 (CA) AT 33-34 (F-C), this Court was emphatic that a litigant can notify the Court of the change of his counsel by personally announcing the change in Court or through any counsel of his choice.
What I am saying in essence is that a defective notice of change of counsel without more cannot render a Court process duly and properly signed by a legal practitioner invalid. Non- compliance with Rule 29(2) of RPC by a legal practitioner is a sin of counsel which cannot be visited on the litigant especially when the non-compliance has not occasioned a miscarriage of justice to the respondents who had adequate notice of the change of counsel. This accord with the consequence of failure to comply with Rule 55(1) of RPC which provides that:
(1) ”If a lawyer acts in contravention of any of the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975.”
The facts and circumstances of the cases of OKOH & ORS. V NWOBODO & ANOR (SUPRA), AGORO V. AROMOLARAN (SUPRA) and AFRICAN TIMBER & PLYWOOD NIG. LTD & ORS. V. OGODO (SUPRA) are radically different from the facts and circumstances of this case. In Okoh’s case, the appeal was dismissed for failure to file appellants’ brief of argument. The appellants then filed a motion to relist the appeal.
One of the grounds upon which the application was brought was that the counsel who announced his appearance for the appellants on the day the appeal was dismissed was no longer their counsel as they had engaged another counsel to take over the appeal and had paid the former counsel all his fees. They alleged that the counsel did not inform them that the appeal was coming up in Court that day. Neither the former counsel nor the new counsel who filed and appeared in Court in respect of the application to relist the appeal filed a notice of change of counsel or any process until the appeal was dismissed. The application to relist the appeal was dismissed.
In Agoro’s case, the appearances of learned counsel who announced their appearances for the respondents were challenged by the appellant on the ground that they were not briefed by the respondents in the appeal. The allegation was not denied by the counsel. The application filed by those counsel was struck out. In AFRICAN TIMBER & PLYWOOD NIG. LTD’s case, application for leave and extension of time to appeal was filed by the appellant in that appeal. The application and hearing notice were served on the respondent’s counsel.
On the day the application was heard and granted, the respondents? counsel was absent in Court. The respondent then applied to set aside the hearing notice served on their counsel and the order of extension of time granted in favour of the appellant and striking out the notice of appeal filed pursuant to that order. One of the grounds of their application was that the firm of solicitors on who the motion for extension of time to appeal was served had no authority of the respondent to accept or receive service of the said processes on behalf of the respondent.
The same counsel had appeared for the respondent at the initial stage of the proceedings. Nothing was filed to inform the Court that any of the parties in the proceedings had changed his counsel. The application to set aside the leave and extension of time to appeal granted in favour of the appellant and notice of appeal filed pursuant to the order was refused. In the instant case, the appellant?s counsel complied with the provisions of RPC and rules of Court. The preliminary objection is misconceived. It is hereby overruled.
The amended notice of appeal contains twenty (20) grounds of appeal. The appellant formulated Ten (10) issues for determination. The respondents formulated five issues for determination. I have considered the issues formulated by counsel to both parties and the grounds of appeal.
All the issues formulated by counsel are subsumed into the following issues:
(1) Whether the Court below had the jurisdiction to entertain the suit.
(2) Whether the terms of settlement filed, withdrawn and struck out in suit no. HK/10/2017 is enforceable against the appellant.
(3) Whether the Court below was right in awarding a sum of N150, 000, 00 (One Hundred and Fifty Million Naira) as general damages and N1,500,000:00 (One Million Five Hundred Thousand Naira) as legal fees/cost of the present litigation against the appellant.
On issue 1, the appellant’s counsel submitted that the cause of action in suit no. HOK/10/2017 having arisen in Cross-River State and the terms of settlement having been filed in that suit, only the High Court of Cross River State has the jurisdiction to entertain any action seeking to enforce the said terms of settlement by virtue of Section 272 of the Constitution.
It is also submitted that the filing of the suit from which this appeal emanated during the pendency of the suit filed in the High Court of River State to enforce the terms of settlement filed, withdrawn and struck out in that Court is an abuse of Court process especially when the parties and the subject matter are the same. On when a suit constitutes an abuse of Court process, counsel referred to R. BENKAY (NIG) LTD V. CADBURY (NIG) PLC (2012) 9 NWLR (PT. 1306) 596 AT 616-617 (A-H), OJO V. A.G. OYO STATE (2008) 15 NWLR (PT.1110) 309, LOKPOBIRI V. OGOLA (2016) 3 NWLR (PT.1499) 328, ARUBO V. AIYELERU (1993) 3 NWLR (PT.280) 126 (C-E), N.I.C. V. F.C.I CO. LTD (2007) 2 NWLR (1019) 610 AT 630-632 (F-H).
It is also the contention of the appellants that originating summons is not a competent mode of commencement of an action for enforcement of terms of settlement or breach of contract. He referred to ORDER 3 RULES 5 AND 6 OF THE HIGH COURT (CIVIL PROCEDURE) RULES OF ANAMBRA STATE, 2006. UNIVERSITY OF LAGOS V. AIGORO (1991) 3 NWLR (PT. 179) 376. He submitted that the issues formulated by the appellant and adopted by the Court below cannot be determined by affidavit evidence and in any case those issues did not arise from the originating summons. He referred to OLLEY V TUNJI (2013) 10 NWLR (PT.1362) 275 AT 316, ALUBANKUDI V. A.G. FED (2002) 17 NWLR (PT.796) 338 AT 357 (D-H).
He further submitted that the allegation of abuse of Court process, misrepresentation, fraud and/or mistake and enforceability of the terms of settlement withdrawn and struck out raised in the appellant’s affidavit and adopted by the Court below can only be proved by oral evidence, the Court below was therefore wrong in determining the issues without calling for oral evidence. He referred to ODUKWE V. ACHEBE (2008) 1 NWLR (PT. 1067) 40 AT 59 (A-D). I.F.C V. D.S.N.L. OFF SHORE LTD. (2008) 9 NWLR (PT. 1093) 606.
In response, the respondents’ counsel argued that since the terms of settlement was executed at Onitsha within the jurisdiction of the High Court of Anambra State, a fact which the appellant did not deny, the Court below had the jurisdiction to entertain the suit by virtue of Order 2 Rule 3 of the High Court (Civil Procedure) Rules of Anambra State, 2006.
He submitted that for actions commenced by originating summons as in this case, the jurisdiction of the court is determined by the reliefs on the originating summons and the affidavits in support and not the counter affidavit. He referred to EBONYI STATE UNIVERSITY & ANOR. V. IFEANYI & ANOR. (2016) LPELR 41051 (CA), HASSAN V. ALIYU (2010) 17 NWLR (PT. 1223) 547.
On the propriety of commencing the suit by originating summons, counsel submitted that originating summons can be used for determination of “other instrument” and not limited to construction of deed, Will, enactment or other written law and in any case, the appellant did not raise the issue and did not contend at the Court below that the facts in the case were in dispute.
On the contention that the suit is an abuse of Court process, counsel submitted that the conclusion of the Court below that the suit is not an abuse of Court process because the parties and the subject matter in the suit at the High Court of Cross-River State and the suit in the High Court of Anambra State are not the same is correct. According to counsel, while the subject matter in HOK/10/2017 was careless/neglect driving, the present suit is about enforcement of an agreement between the parties.
RESOLUTION:
It is trite law that jurisdiction being fundamental to the exercise of the power of the Court to adjudicate on a matter, the issue can be raised at any time during the proceedings and even for the first time on appeal. It can be raised on appeal as a fresh issue without the leave of the Court. The appellant cannot be shut out from raising the issue of territorial jurisdiction of the High Court of Anambra State in this appeal simply because the issue was not raised at the court below.
In any case, prayer 1 on the appellant’s motion filed on 28/11/2018 and granted on 4/1/19 is a prayer for leave to raise issues of jurisdiction against the judgment of the Court below. The issues relating to the jurisdiction of the Court below have been properly raised in this appeal.
Section 272(1) of the 1999 Constitution of Nigeria (as amended) provides that:
(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
Though Section 274 empowers the Chief Judge of the State to make rules for regulating the practice and procedure of the High Court of the State and the High Court (Civil Procedure) Rules of Anambra State was made pursuant to that power, that rule does not give the High Court of Anambra State the jurisdiction to hear and determine a matter which is exclusively within the territorial jurisdiction of another state. For avoidance of doubt, Order 2 Rule 3 the High Court (Civil Procedure) Rules of Anambra State provides that:
(3) ”All suits for the specific performance, or upon the breach of any contract, may be commenced and determined in the Judicial Division in which such contract was made or ought to have been performed or in which the defendant resides or carries on business.”
The clear words of the above rules is that a suit for breach of contract may be commenced and tried in the judicial division in which the contract was made or ought to have been performed or in which the defendant reside or carries on business. The rule applies to cases in which the High Court of Anambra State has territorial jurisdiction. The respondents stated in paragraph 6 of the affidavit in support of the originating summons that the terms of settlement was executed in Onitsha within the jurisdiction of the High Court of Anambra State. That may well be so. I am of the view that strictly speaking, the mere fact that the terms of settlement was signed in Onitsha does not mean that the contract was made in Onitsha.
The agreement to settle the matter out of Court was made in Cross-River State. There is no denying the fact that the terms of settlement was in respect of an accident which occurred in Cross-River State. The parties are also ad-idem on the fact that suit no. HK/10/2017 in which the terms of settlement was executed and filed was filed in the High Court of Cross-River state. Clause 5 of the terms of settlement provides that the terms of settlement shall be entered as the consent judgment by the High Court of Cross River state. It is the suit that the respondents alleged was compromised.
Order 2 Rule (3) of the High Court (Civil Procedure) Rules of Cross River State provides that:
(3) ”All suits for specific performance, or upon the breach of any contract, may be commenced and determined in the Judicial Division in which such contract was made or ought to have been performed or in which the defendant resides or carries on business.”
The Supreme Court stated the basis of the jurisdiction on the Court in actions based on the contract in RIVERS STATE GOVERNMENT OF NIGERIA & ANOR. V. SPECIALIST KONSULT (SWEDISH GROUP (2005) LPELR 2950 (SC) AT 23-24 (F- B) as follows:
”In actions based on contract, jurisdiction depends generally on one of the following three alternatives, namely:
(a) where the contract was made;
(b) where the contract ought to have been performed; or
(c) where the defendant or one of the defendants resides.
There is also another settled procedure and it is this. The venue for the trial of a suit based on a breach of contract could also be determine by
(a) where the contract ought to have been performed; or
(b) where the defendant resides; or
(c) where the defendant carries on business.”
See also ATT. GEN. OF ABIA STATE V. PHOENIX ENVIRONMENTAL SERV. NIG. LTD & ANOR. (2015) LPELR 25702 (CA) AT 11 – 12 (F-D). I am of the firm view that the proper venue of the trial of a suit for enforcement of the terms of settlement is where the contract ought to have been performed. I do not see how the High Court of Anambra State can enforce the terms of settlement made and filed in a suit in the High Court of Cross-River State. I do not see how the terms of settlement can be extricated or completely detached from the case and proceedings before the High Court of Cross River State. I am of the firm view that the High Court of Anambra State has no jurisdiction to adjudicate on the alleged breach of the terms of settlement filed in the suit before the High Court of Cross River State and in respect of a claim which originated from the State.
The second complaint of the appellant is that the suit which culminated in this appeal is an abuse Court process. The Court below held that:
”The present suit is a case for the enforcement of an agreement between the plaintiffs and a sole defendant therein. Also, the issue in suit No. HK/10/2017 was whether the defendants therein recklessly, negligently and dangerously caused an accident that destroyed the vehicle of the 1st plaintiff and took the lives of 3rd and 4th plaintiffs’ brothers while the issue in the present case is whether the parties are bound by the terms of agreement they voluntarily entered into. As a matter of fact, the issue in the present suit constitutes a total cause of action different from the issues in suit No. HK/10/2017. This view was affirmed by the Hon. Justice Akon Ikpeme in his Lordship’s ruling on 6th day of December, 2017 in Suit NO. HK/10/2017 when His Lordship held” ‘In view of the above, I cannot compel the defendants to go on with the terms. If claimant feels that by going back on the terms, there is a breach of agreement. That is a different cause of action altogether which is not before this Court I agree totally with His Lordship that the present suit is on a different cause of action that was not before the court in Suit No. HK/10/2017.
From the facts of this case as already stated, the subject matter and the issues in this suit are not the same with the ones in suit No. HK/10/2017.
The parties are also not exactly the same. As a matter of fact, on the 16th day of January, 2018 when the present suit was filed in this Court, there was no subject matter or issue(s) pending in any Court anywhere (including Suit No. HK/10/2017)as to suggest that the present suit is an abuse of Court or judicial process and I so hold.”
I do not agree with the Court below that this suit does not constitute an abuse of Court process. It is a settled principle of law that multiplicity of actions in respect of the same subject matter and between the same parties constitutes an abuse of Court process. See SCHEEP & ANOR. V. THE MV ‘S.ARAZ’ & ANOR. (2000) LPELR 1866 (SC) AT 58 – 59 (G-B), (2000) 15 NWLR (PT. 691) 622, AFRICAN REINSURANCE CORP. V. JDP CONSTRUCTION NIGERIA LTD. (2003) LPELR 215 (SC) AT 28 (D-E), ACB PLC V. NWAIGWE & ORS. (2011) LPELR 208 (SC) AT 12 – 13 (F-B).
In AGWASIM V. OJICHIE (2004) 4 S.C (PT. 11) 160, (2004) LPELR 256 (SC) AT 10 – 11 (G-B). The Supreme Court held that:
”It is trite law that the abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject matter against the same opponent on the same issue or a multiplicity of action on the same matter between the same parties. If also occurs by instituting different actions between the same parties, simultaneously in different Courts even though on different grounds.”
In the instant case, as at 16/1/2018 when the suit in the High Court of Anambra State was filed, suit no. HK/10/2017 was still pending. The motion challenging the joinder of the appellant as a defendant in that suit was also pending. Though the claim in suit no. HK/10/2017 was for negligent driving while the reliefs sought in suit no. O/09/2018 is for the enforcement of the terms of settlement filed in suit no. HK/10/2017 and general damages, the two suits were in respect of the same subject matter which is the alleged accident and the exercise of the same right which is the right to seek compensation for the alleged loss of vehicle and human lives. The parties in both suits are the same except that the 2nd defendant in suit no. HOK/10/2017 sued as “Unknown Driver of 1st Defendant” was not joined in suit no. O/09/2017. The non joinder of “?Unknown Driver of 1st
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Defendant” does not mean that the parties are different. All the parties in the present suit were parties in the previous suit. It is the consensus of all the Courts that abuse of Court process is not capable of definite and precise definition. It involves an infinite variety of situations and circumstances. The issue of whether a process or suit constitutes an abuse of Court process depends on the peculiar facts and circumstances of a particular case. Suit no. O/09/2018 filed in the High Court of Anambra State while the suit in the High Court of Cross-River State was still pending constitutes an abuse of Court process. A Court has no jurisdiction to entertain an action that is an abuse of judicial process. See EHIRIM V. GOV. OF IMO STATE & ORS. (2014) LPELR ? 24359 (46 ? 48 (E-C). A. G. OF LAGOS STATE V. A. G. FEDERATION & ORS. (2014) LPELR ? 22701 (SC) AT 35 (E ?G). The Court below was wrong when it held that there was no subject matter or issues pending in any Court and any where including suit no. HK/10/2017 to suggest that suit no. O/09/2018 is an abuse of Court process.
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The third complaint is about propriety of commencing the suit by originating summons. Order 3 Rules 5 and 6 of the High Court (Civil procedure) Rules of Anambra State, 2006 provide that:
5. ?Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
6. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.?
The question here is whether the terms of settlement entered into qualifies as ?other written instrument? mentioned in the above rules. I will go by the general definition of instrument as contained in IKPEAZU V. OGAH & ORS. (2016) LPELR ? 40843 (CA) AT 48 (B-D) where OGUNWUMIJU, JCA stated
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that:
?Edward Beal, in ?Cardinal Rules of Legal Interpretation Pg. 55 defined an instrument: ?to embrace contracts, deeds, statutes, wills, order in council, orders, warrants, schemes, letters, patents, rules, regulations, bye-laws, whether in writing or in print or partly in both, in fact, any written or printed document that may have to be interpreted by the Courts.? In RACE AUTO SUPPLY COY. LTD. & ORS. V. AKIBI (2006) LPELR ? AT 18 (C), the Supreme Court state that:
?The word? instrument is defined in strouds judicial Dictionary as ?anything reduced to writing, a document of formal or solemn character.?
Based on the above authorities, I hold that the terms of settlement signed by both parties qualify as ?other written instrument? mentioned in Order 3 Rule 5 (supra). The law is settled that originating summons is the appropriate procedure for commencing an action where facts are not in dispute or there is not likely to be a dispute on material facts and the principal issue is the construction of a deed, will, contract or other document or enactment or
32
some question of pure law. See KEYAMO V. HOUSE OF ASSEMBLY (2002) LPELR- 1689(SC) AT 8 (F-G). In the instant case, there is no dispute on the material facts except one issue which is whether or not the vehicle alleged to be involved in the accident with the 1st respondent?s vehicle belongs to the appellant. The law is settled that it is not in all cases that the Court is bound to call oral evidence to resolve conflicts in affidavits before the Court. Where there is sufficient documentary evidence upon which the Court can resolve the issue in dispute, the Court is entitled to use the documents before it to resolve the issue. In such a situation, the Court is not bound to call for oral evidence. See GEORGE & ORS. V. ANUCHA (2016) LPELR -40509 (CA) AT 36-38(G-G), DORKUBO & ORS. V. UDOH & ANOR. (2016) LPELR 41167 AT (CA) AT 14-15(F-C). I have perused the documents attached to the affidavits of both parties, I have no doubt that the Court below was in a position to resolve the issue of ownership of the vehicle by reference to the documents on record. For the above reasons, I hold that the suit was properly commenced by
33
originating summons. Having held that the High Court of Anambra State has no jurisdiction to entertain a suit for the enforcement of terms of settlement filed in a suit at the High Court of Cross River State and that the suit filed while the suit in the High Court of Cross-River State was still pending is an abuse of Court process, issue 1 is resolved in favour of the appellant.
On issue 2, the appellant?s counsel submitted that there was no appeal against the decision of the High Court of Cross River State striking out the terms of settlement on the ground that settlement has broken down. Therefore, that decision remains binding on the parties. He referred to KRAUS THOMPSON ORG. LTD. V. UNICAL (2004) 9 NWLR (PT. 879) 631. COMP. GEN. CUSTOMS V. GUSAU (2017) 18 NWLR (PT. 1598) 353 AT 379 (C-F). He further submitted that the implication of the finding of the High Court of Cross-River State that settlement has broken down is that the settlement is unenforceable as there was no longer any agreement between the parties. He argued that the decision of the Court below that the terms of settlement is enforceable contradicts the
34
decision of the High Court of River State, amounts to sitting on appeal over the decision and overruling same which the Court below has no jurisdiction to do. He referred to N.I.M. LTD. V. U.B.N. LTD (2004) 12 NWLR (PT. 888) 599 AT 618. NDIC V. SBN PLC (2003) 1 NWLR (PT. 801) 311. Counsel further submitted that the terms of settlement having been withdrawn and struck out, it can no longer be enforced by either a fresh action or any other means. He referred to WOLUCHEM V. WOKOMA (1974) 3 SC 153. RAS PALGAZI CONSTRUCTION COMPANY LTD. V. FCDA (2001) LPELR-2941 (SC). It is also submitted that the law recognized that a contract signed by any person whether reputable or otherwise can be vitiated where misrepresentation, fraud or mistake is proved. He further submitted that the real issue in this case is whether the vehicle involved in the accident belongs to the appellant which the Court below failed to determine and erroneously placed the onus of proof on the appellant. He argued that the Court below substituted the onus of proof on the respondents with the sentiment that the appellant is a reputable company and should bear the misrepresentation and mistake.<br< p=””
</br<
35
In response, the respondents? counsel submitted that a settlement agreement need not be made a consent judgment in all cases. He further submitted that where a party reneges from a settlement agreement before it is made a consent judgment, the aggrieved party is entitled to commence a fresh action to enforce the terms of settlement as the aggrieved party cannot be left without a remedy. He referred to ABEY V. ALEX & ORS. (1999) 14 NWLR (PT. 637) 148, (1999) LPELR 32 (SC). Counsel submitted that the terms of settlement remains valid, subsisting and binding despite its being struck out and the breach of settlement agreement gave rise to an independent fresh cause of action. He referred to ABEY V. ALEX (SUPRA). He argued that the terms of settlement did not derive its validity from suit no. HK/10/2017, the terms of settlement has its validity enshrined in it. He further submitted that the only option the respondents had was to sue on the breach of settlement as the original cause of action was spent and exhausted.
?
In reply, the appellant?s counsel submitted that a process withdrawn and struck out is no longer
36
alive. He referred to NABORE PROPERTIES LTD V. PEACE COVER LTD. (2015) 2 NWLR (PT. 1444) 440 AT 470 (F).
RESOLUTION:
The settled position of the law is that parties are bound by an agreement which they voluntarily entered into. It is also settled that where consideration has passed, parties are bound by the terms of settlement voluntarily negotiated, reduced into writing and signed by the parties in an action before a Court of law whether or not the terms of settlement is made a judgment of the Court. Where the terms of settlement is not made the judgment of the Court but nevertheless led to a compromise of the case, it is enforceable by a fresh action as a contractual agreement. Where the terms of settlement are entered as a judgment of the Court pursuant to the consent of both parties, it is enforceable as any other judgment of the Court. See UNILORIN & ORS. V. ODULEYE (2006) LPELR ? 11708 (CA) GALADANCHI V. ABDULMALIK & ANOR. (2014) LPELR ? 23593 (CA). S. P. M. LTD. V. ADETUNJI (2009) 13 NWLR (PT. 1159) 647, (2009) LPELR ? 3113 (SC) AT 26-27 (C-D). ENUGU STATE CIVIL SERVICE COMMISSION
37
& ORS. V. GEOFREY (2006) LPELR ? 7638 (CA) AT 13-14 (G-D).
In the instant case, it is the agreement of both parties that the terms of settlement filed in suit no. HOK/10/2017 be made judgment of the Court. However, the terms of settlement was withdrawn and struck out. The Court in granting the application for the withdrawal of the terms of settlement held at page 27 of the record of appeal that:
“Settlement out of Court was initiated by the parties as they informed the Court. I notice that the said terms of settlement dated 13th September, 2017 and filed on the 15th September, 2017 was filed even before this matter came up before me first on the 27th September, 2017 going by the Court?s record. As it were, therefore settlement out of Court was something initiated and handled by the parties. On the 25th October 2017, Paul Ebiala Esq., informed the Court that there are some clarifications to be made concerning the terms. Today, Vivian Antifon Esq., has informed the Court they want to withdraw the terms of settlement which they filed because of some misgivings which has come
38
to their notice. I do not know of any law or rule that empowers a Court to compel a party to settle out of Court. Her application simply shows that inspite of the terms of settlement earlier filed, settlement has broken down. In view of the above, I cannot compel the defendants to go on with the terms. If Claimant feels that by going back on the terms, there is a breach of agreement that is a different cause of action altogether which is not before this Court. In any case, the records of the Court shows that even though the said terms were filed before this Court heard this matter for the first time, it was not yet adopted by both sides. For this reasons, the defendants? counsel application to withdraw the terms of settlement which they filed is hereby granted and the said terms of settlement dated 13th September, 2017 and filed on the 15th September, 2017 is hereby struck out. There is no order as to cost.?
The respondents did not appeal against the above ruling. I am of the firm view that the effect of the finding of the Court that settlement has broken down and striking out the terms
39
of settlement is that the terms of settlement is no longer subsisting. There was no longer an enforceable terms of settlement between the parties. Before the terms of settlement can constitute an enforceable contract, there must be consideration given by the parties. The consideration in my view is that the party seeking to enforce the terms of settlement must have been led to compromise the case in respect of which terms of settlement was signed. In the instant case not only was the terms of settlement no longer subsisting, the respondents were not misled or deceived to compromise the case. The respondents on their own volition and without prompting or influence from the appellant withdrew the suit. In fact and in law, the case was not compromised. The respondent had the right to proceed with the prosecution of their case but instead chose to pursue terms of settlement which had already been struck out and was no longer subsisting. The respondents were not left without a remedy as postulated by the Court below. When terms of settlement filed in a suit is withdrawn and struck out on the ground that settlement has broken down while
40
the suit is still pending before the Court, the terms of settlement cannot be enforced. The Court below was wrong when it held that ?the only position the striking out created is that the terms of settlement ceased to be part of the processes in suit no. HK/10/2007 but did not affect its life span or validity?. Terms of settlement withdrawn and struck out on the ground that settlement has broken down is dead and buried for all purposes. The general principle of law that parties are bound by the agreement they voluntarily entered into is applicable in cases where there is nothing to show that the agreement or terms of settlement is not vitiated by fraud, mistake, deception or misrepresentation. In the instant case, the appellant claimed that after signing the terms of settlement, it was discovered that the vehicle involved in the accident does not belong to it. In other words, the terms of settlement was entered into under a mistaken believe that the vehicle belong to the appellant. In certain circumstances a mistake of fact renders a contract void or invalid ab initio. The mistake here is as to ownership of the
41
vehicle involved in an accident which is the basis of the terms of settlement. The bindingness of the terms of the settlement even if it is subsisting depends entirely on the ownership of the vehicle. The appellant stated in paragraphs 6 and 8 of the counter affidavit that:
“6.That I am also aware that before the commencement of hearing of the said suit HK/10/2017, attempts were made at settlement of the case out of Court when the defendant was made to believe that the vehicle involved in the accident belonged to it.
8.That I am also aware that soon after the terms of settlement was filed, fresh facts emerged indicating that the vehicle said to have been involved in the alleged accident with the 2nd plaintiff?s vehicle does not belong to the defendant.”
The list of the vehicles belonging to the appellant is part of Exhibit DC 2 which is the motion filed in suit no. HK/10/2017 by which an order to strike out the names of the defendants in that suit was sought. In paragraph 7 of the affidavit in support of that motion, the appellant averred that:<br< p=””
</br<
42
?when the matter was brought before the Recovery Unit of the 1st defendant in the course of processing the settlement payment, it was discovered that the vehicle in question does not belong to the 1st defendant as it does not form part of the fleet of tankers owned by the 1st defendant on record. Annexed hereto as EXHIBIT DAN 1 is the list of all the tankers belonging to the 1st defendant on record.?
There was no response to that motion by the respondents. In reaction to paragraphs 6 and 8 of the counter affidavit, the respondents deposed in paragraphs 5 ? 8 of their further affidavit that:
5. ?That in response to paragraphs 6 and 7 of the defendant?s counter-affidavit, the plaintiffs state that upon its acceptance of defendant?s counsel proposal for out of Court settlement, the defendant on its own accord drafted the ?Terms of Settlement Agreement? which was duly sent to the plaintiffs through its counsel for execution.
6. That the defendant actually filed the terms of settlement agreement themselves and all that was left was its adoption by parties as consent judgment.
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- That the plaintiffs denies paragraph 8 of the defendant?s affidavit and in response states that the said facts are completely irrelevant for purposes of this proceedings.
8. The plaintiffs admit paragraph 9 of the defendant?s counter-affidavit and further state that the terms of settlement agreement was struck out because the defendant was opposed to it being adopted as consent judgment.?
In the instant case, the burden was on the respondents to prove that the vehicle involved in the accident belong to the appellant because the provisions of Sections 132 and 136(1) of the Evidence Act are very clear. In civil cases the burden of proof is on the party who would fail if no evidence at all were given. It is also settled that the burden of proof rests with the person who asserts the positive and not the one who affirms the negative. The assertion of the appellant is that the vehicle does not belong to it. It is the respondents that are asserting that the vehicle belong to the appellant. The onus of proof is on the respondents to prove that the vehicle involved in the accident belong to the appellant. The respondents failed to
44
discharge that burden. The answer of the respondents to the deposition of the appellant and the list of vehicles presented to the Court is that they are irrelevant to the proceedings. The contention of the respondents is totally wrong because the only reason for suing the appellant is that it is vicariously liable for the alleged reckless and negligent driving of the driver of the vehicle alleged to belong to the appellant. Unfortunately, the Court below also fell into that error because the Court failed to resolve the ownership of the vehicle involved in the accident which is germane to the issue of validity and enforceability of the terms of the settlement. The Court below rather than resolve the issue of the ownership of the vehicle held at pages 71-72 of the record that:
?the defendant being a reputable company could not and should not enter into any agreement without first ascertaining the true facts leading to such agreement. In the instant case, it could not have pushed for out of Court settlement, drafted the terms of settlement and filed the same in Court if it was not sure of the facts surrounding the incident(s)
45
for which they were sued in Court in suit No.HK/10/2017. It was fully aware of its steps towards the terms of settlement agreement and that explains why they were so interested in out of Court settlement. If per chance, it failed to exercise reasonable care and caution before entering into any agreement like in the present case, it did so to its peril and has itself to blame and not the plaintiffs. I am of the strong view that in the circumstances of this case there was no misrepresentation, fraud, deception or mistake on the part of the plaintiffs in the negotiation and final agreement on the terms reached by the parties to settle out of Court with respect to suit No HK/10/2017. If there was any misrepresentation, fraud, deception or mistake, it was self induced and perpetrated by the defendant with the sinister intention of fostering the situation of faith acompli on the plaintiffs all aimed at frustrating the terms of settlement agreement it freely, wholeheartedly and voluntarily entered with the plaintiffs. That being the case, the
46
defendant is estopped from reneging from the terms of the said agreement and I so hold.?
I agree with the Court below that the appellant should not have rushed into signing of terms of settlement without ascertaining the ownership of the vehicle but that is not enough for the Court to foist upon a party an invalid or void contract or terms of settlement vitiated by mistake of fact. The decision of the respondents to withdraw the suit after the terms of settlement was withdrawn and struck out so as to avoid the issue of ownership of the vehicle involved in the accident and false the terms of settlement on the appellant is a wrong strategy and they must face the consequence. On the entire facts and circumstance of this case, the decision of the appellant not to comply with the terms of settlement signed by the parties does not amount to a breach of contract. The Court below was clearly wrong in answering that question in the affirmative. Issue 2 is resolved in favour of the appellant.
On issue 3, the appellant?s counsel submitted that the award of N150,000,000.00 (One Hundred and Fifty Million Naira) as general
47
damages is void, unwarranted, excessive, extravagant, unreasonable, unconscionable and amount to double compensation for breach of terms of settlement of N6,000,000.00 (Six Million Naira). He referred to OGBONNA V. OGBONNA & ANOR. (2014) LPELR- 22308 AT 65 ? 69 (A-G). He further submitted that the grant of N1,500,000.00 (One Million Five Hundred Thousand Naira) as legal fees/cost of the present litigation as well as 35% interest per annum (or prevailing CBN ? Interest Rate) is vague and wrongly made. He submitted that legal fees is a specie of special damages which should be pleaded and strictly proved as required by law. He referred to JALBAIT VENTURES (NIG.) LTD. & ANOR. V. UNITY BANK PLC (2016) LPELR ? 41625 (CA).
In response, the respondents? counsel submitted that given the character of the suit, the reliefs claimed and the peculiar facts and circumstances of the case, the damages awarded by the Court below is for loss of profit of N6,000,000.00 (Six Million Naira) which the appellants ought to have paid as per the terms of settlement and no amount of money can bring back the lives that were
48
lost. He further submitted that award of cost is entirely at the discretion of the Court and costs follow events. A successful party is entitled to costs unless there are special reasons why he should be deprived of such entitlement. He referred to NNPC V. CLIFCO (NIG.) LTD. (2011) 10 NWLR (PT. 255) 209. Order 49 Rule 6 of the Anambra State High Court (Civil Procedure) Rules, 2006.
RESOLUTION:
In an action for breach of contract, the onus is on the plaintiff not only to prove that there was a breach but also that there was in existence a subsisting and enforceable contract which was breached by the defendant as there cannot be a breach of non-existent contract or a contract that is void or invalid ab initio. See HAIDO & ANOR. V. USMAN (2003) LPELR ? 5249 (CA) AT 25 (D). ACCESS BANK PLC V. UGWUH (2013) LPELR ? 20735 (CA) AT 25-26 (D-A) .BEST NIG. LTD. BLACKWOOD HODGE NIG. LTD. (2011) LPELR ? 776 (SC) AT 42 (D-E). In the absence of a subsisting, valid and enforceable contract, a claim for damages for breach of contract must fail. See BILANTE INT. LTD. V. NDIC (2011) LPELR ? 781
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(SC) AT 36 (B-C).
In the instant case, there was no breach of contract for which the Court below could have awarded damages as there can be no breach of a non-existent contract or one that is invalid or void ab initio. Settlement having broken down and the terms of settlement having been struck out, it was no longer subsisting and cannot resurrected by a fresh action. Even if the terms of settlement is enforceable as a contract, the law is settled that in a claim for breach of contract, the award of damages is the amount that would return the plaintiff to the position he would have been had the contract been performed as agreed. It has always been emphasized that the essence of damages in claim for breach of contract is restitutio integrum. See AGU V. GENERAL OIL LTD (2015) LPELR ? 2461 (SC) AT 2022 (E-C), G.CHITEX IND. LTD. V. OCEANIC BANK INT. (NIGERIA) LTD. (2005) LPELR-1293 (SC). The law is settled that an appellate Court will not interfere with an award of damages by a trial Court unless it is shown that the award is (1) based on wrong principle of law. (2) in disregard of settled principles of law.
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(3) is ridiculously high or too low. See ODUWOLE & ORS. V. WEST (2010) 10 NWLR (PT. 1203) 598 S. C. (2010) LPELR ? 2263 (SC) AT 15 (B-F). ADIM V. N.B.C. LTD (2010) LPELR ? 181 (SC) AT 17 (B-E). UNION BANK OF NIG. PLC. V. CHIMAEZE (2014) LPELR 22699 (SC) AT 32-33 (E ? A). In the instant case, the Court below ignored the terms of settlement signed by both parties in the award of N150,000,000.00 (One Hundred And Fifty Million Naira) general damages in addition to the sum agreed by both parties. The amount is ridiculously high and, in any case,, the respondents are not entitled to any other sum apart from N6,000, 000.00 agreed on. It is not the aim of compensation for breach of contract to enrich the claimant or award more damages than the loss actually suffered as a direct consequence of the breach or flowing naturally there from and reasonably foreseeable or within the contemplation of the parties. See IFETA V. S. P. D. C. NIG. LTD. (2006) LPELR ? 1436 (SC). MARINE MANAGEMENT ASSO. INC. & ANOR. V. NATIONAL MARITIME AUTHORITY (2012) LPELR-20618 (SC). AGU V. GENERAL OIL LTD. (SUPRA).
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In the instant case, the amount agreed upon by the parties in full and final settlement of the respondents? claim in suit no. HK/10/2017 is N6,000,000.00 (Six Million Naira) and no more. Thus, even if there was a breach of contract by the appellant, the amount of the actual loss suffered by respondents is the sum of N6,000,000.00(Six Million Naira) which is what they would have received if the terms of settlement had been made judgment of the Court. The award of N150,000,000.00 (One Hundred and Fifty Million Naira) as general damages was not within the contemplation of the parties and cannot be said to flow directly or naturally from the appellant?s decision to withdraw the terms of settlement. There is no scintilla of evidence to show that the respondents suffered any other loss as a direct consequence of the alleged breach of terms of settlement. Apart from the fact that general damages was not within the contemplation of the parties nor is it a loss suffered as a direct consequence of the breach, it amounts to double compensation because the sum of N6,000,000.00 (Six Million Naira) awarded in favour of the respondents is for the same alleged breach.
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It has always been emphasized by this Court and the Supreme Court that the Court must be careful not to compensate a party twice for the same loss. See ARISONS TRD. ENG. COY. LTD. V. THE MILITARY GOVERNOR OF OGUN STATE & ORS. (2009) LPELR ? 554 (SC) AT 56-57 (B ? F).
The Court below also awarded a sum of N1,500, 000.00 (One Million Five Hundred Thousand Naira) as legal fees/cost of the present litigation. Order 49 Rules 1 and 6 of the High Court (Civil Procedures) Rules of Anambra State stipulates the principle to be observed in fixing costs as follows:-
1.(1) ?In fixing the amount of costs, the principle to be observed is that the party who is in the right shall be indemnified for the expenses to which he has been necessarily put in the proceedings as well as compensated for his time and effort in coming to Court. The judge may take into account all the circumstances of the case including filing fees payable in the High Court and professional fees payable to the Legal Practitioner of the successful party.
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily
53
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.
(6) Subject to the provisions of any applicable law and these Rules, the costs of and incidental to all proceedings in the Court, including the administration of estates and trusts, shall be at the discretion of the Judge, and the Judge shall have full power to determine by whom and to what extent the costs are to be paid.?
It is clear from the words used in Order 49 Rules 1 and 6 that award of costs is at the discretion of the Court. The discretion must be exercised judicially, that is according to the rules of Court and established principles of law and judiciously, that is taking into consideration the entire facts and circumstance of the case including filing fees and professional fees payable to the Legal Practitioner of the successful party. There is no scintilla of evidence or fact on record to show how
54
much was paid or is to be paid as legal fees to the respondents? counsel and how much was incurred as filing fees. The Court failed to state the basis for the award the sum of N1,500, 000.00 as cost of legal fees/cost of the present litigation. The discretion of the Court was exercised in vacuo and without facts. The discretion has not been exercised judicially and judiciously. Where the trial Court exercised its discretion in vacuo or without fact the appellate Court has a duty to interfere with the exercise of the discretion. See AZUH V. U.B.N PLC (2014) LPELR- 22913 (SC0 AT 47 ? 48 (F ? B). Award of damages or legal fee/cost is not at the whims and caprices of the trial Court. It should not be based on speculation or sentiments. The award the sum of N1,500, 000.00 as legal fee/cost of the present litigation in this case is speculative and not supported by any evidence or fact on record. It cannot be allowed to stand.
The Court below also awarded 35% interest per annum (or prevailing CBN interest rate) on the judgment sums from date of delivery of judgment until final
55
liquidation of the judgment sum. Order 35 (4) of the High Court (Civil Procedure) Rules, 2006 of Anambra State empowers the High Court to award post judgment interest. The Rule reads:
“(4) The Judge at the time of making any judgment or order or at any time afterwards, may direct the time which the payment is to be made or other act is to be done, reckoned from the date of the judgment or order, or from some other point of time as the Judge deems fit and may order interest at a rate not less than 10% per annum or at the prevailing interest rate for the time being chargeable by Commercial Banks on loans and overdrafts (whichever is higher) to be paid upon any judgment until the judgment debt is fully liquidated or settled.?
The award of interest and the rate is entirely at the discretion of the trial Court. The Court can award interest at a rate not less than 10% or at the prevailing interest rate for the time being chargeable by commercial banks on loans and overdrafts not CBN rate. The Court must specify which of the two options it has employed in the award of interest. It is also clear that for the Court to award
56
interest at the prevailing interest rate chargeable by commercial banks on loans and overdrafts, there must be evidence establishing that rate before the Court. There is no evidence of the prevailing interest rate for the time being charged by commercial banks on loans and overdrafts on record. In the instant case, the award on interest was based on the two options. The award of interest is vague and cannot be allowed to stand.
In conclusion, I find that this appeal has merit. It is hereby allowed. The judgment of the High Court of Anambra State delivered in suit no. O/09/2018 on 17/7/2018 is hereby set aside. Since the High Court had no jurisdiction to entertain the suit in the first place and since this Court has found that the terms of settlement are not enforceable against the appellant, the suit is dismissed.
Parties shall bear their own costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read now the Judgment just delivered by my learned brother, MISITURA BOLAJI-YUSUFF JCA. His Lordship has most succinctly and exhaustively dealt with the many issues that arose for determination in the
57
appeal. I agree with his conclusions. I am also of the firm view that the institution of the suit that culminated in this appeal in the High Court of Anambra State Onitsha during the pendency of the original suit HK/10/2017 at the High Court of Cross-River State Akamkpa was an abuse of Court process. Abuse of Court process occurs in different ways. It certainly includes a situation where the parties are the same, issues the same but the grounds on which the suit is instituted different. See PDP & ANOR V UMEH & ORS (2017) LPELR- 42023 (SC). Although the claim here is for breach of contract, all the facts giving rise to the alleged breach emanate from the same facts as in the case filed in Akamkpa. What then was the essence of going to Onitsha to file the suit for breach of contract and surreptitiously returning to Akamkpa after the fact to withdraw the original suit when in fact the Appellant had applied that its name struck out as it was not its vehicle that was involved in the accident? From the circumstances of the case, it is not in doubt that it was a case of abuse of Court process. I agree that the lower Court had no jurisdiction to entertain the suit and that
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the terms of settlement were at any rate not enforceable against the Appellant. I abide by the consequential orders of my learned brother in the judgment.
Other Citations: (2003)LCN/1375(CA)
