Nigeria Ports Authority V. Aminu Ibrahim And Company & Anor (2018)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This is an appeal against the Judgment of the Lagos division of the Court of Appeal (lower or Court below) delivered on 8th May 2009 which dismissed the appeal by the appellant before it. The brief facts giving rise to the appeal as could be gathered from the record of appeal, are summarised below:-

The plaintiffs now respondents, approached the Federal High Court Lagos by filing a suit under the Undefended List procedure claiming the under listed reliefs

(a) An order directing the defendant (now appellant) to pay the sum of USD9,186,701 to the appellant/plaintiff being the agreed fee for the consultancy services rendered by the plaintiffs/respondent to it (the appellant).

(b) Interest on the said sum of USD9,186,701.00 at the rate of 10% from 27th April 2004 until final liquidation of the debt.

(c) An order directing the defendant to pay the sum of N144,303,981.00 to the plaintiffs being the agreed fee for the consultancy services entered into by the plaintiffs to the Defendant;

(d) Interest on the sum of N144,303,981 – at the rate of 10% per annum from 27th April 2004 until final liquidation of the debt.

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It would seem to me that the respondents herein, based their cause of action on the alleged appellant’s failure to pay them the agreed fees in respect of professional services they rendered to the appellant in conformity with letter dated 23/1/2003 in which the appellant employed the services of the respondents to reconcile the account position regarding concessions which the appellant gave to Inter Services Limited, Nigerian Liquefied Gas (LNG) and Mobil Oil Producing Unlimited. The respondents claimed that they satisfactorily executed the job and have thereupon exhibited interim and final bills to the appellant but the latter failed or neglected to pay them despite repeated demands. That failure to settle the claims triggered the plaintiffs/respondents to institute the suit under the Undefended List Procedure against the appellant at the Federal High Court (the trial Court) claiming the payment of the aforementioned sums.

Upon being served with the originating process, the appellant filled a Notice of Intention to defend the suit supporting same with an affidavit. The defences raised in the

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affidavit accompanying the Notice of intention to defend the suit, include the followings;-

(i) That the Respondents did not perform the contract satisfactorily;

(ii) That the Respondents did not execute the contract within the 35 days as earlier agreed upon;

(iii) That there was no extension of time;

(iv) Parties did not agree on the sum of USD 9,186,701.00 and N144,303,981.00 as claimed by respondents

(v) That the respondents unilaterally varied the remuneration payable from 18% to 5% and that the variation was never agreed upon by the appellant

(vi) That payment of fees was contingent upon recoveries of the identified short falls from the affected companies and no such recoveries were made, hence no money was due for payment to the respondents by the appellant.

In its Judgment, the trial Court held that all the above defences did not call for the transfer of the suit filed under the Undefended List procedure to the General Cause List, especially in view of the appellant’s failure to exhibit documents in support of the affidavit supporting the notice of Intention to defend the suit.

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In the result, the trial Judge found in favour of the respondents herein, as plaintiffs thereat.

Aggrieved by the Judgment of the trial Court, the appellant appealed to the Court of Appeal, Lagos division (the lower Court or Court below) which dismissed the appellant’s appeal and upheld the decision of the trial Court.

Piqued by the Judgment of the lower Court, the appellant further appealed to this Court. Initially, the learned appellant’s counsel filed a notice of appeal containing two grounds of appeal. However, with leave of this Court, the appellant’s learned counsel sought and was granted leave to amend its original notice of appeal. Sequel to that, it was allowed to amend and bring in an Amended Notice of Appeal which it filed on 26/6/2011. The Amended Notice of Appeal expanded the grounds of appeal from two to nine grounds. The appellant’s learned counsel thereupon filed an Amended Appellant’s Brief of Argument on 13/2/2012 which was deemed filed on 26/11/2017. The said Brief of argument was settled by Prof Taiwo Osipitan, SAN. The learned senior counsel for the appellant distilled six issues for determination out of the nine grounds of appeal. The six

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issues for determination are reproduced hereunder: –

(1) Whether the Respondents cause of action, namely in simple contract for the recovery of professional fees allegedly due to the respondents falls within or outside the Jurisdiction of the Federal High Court (Ground III).

(2) Whether in the light of the concession by the Respondents on the Respondents’ brief in the Court of Appeal that the filing of Exhibits/Documents is not a condition precedent to the transfer of the suit to general cause list, the Learned Justices of the Court of Appeal (without a Respondents Notice to Affirm the Judgment on different grounds) wrongly or rightly declined to set aside the Judgment of the Trial Court (Ground I)

(3) Whether the Court below rightly or wrongly held that paragraphs 3-14 of Appellants Affidavit in support of Notice of Intention to Defend the action, were hearsay evidence and therefore inadmissible (Grounds v & VI).

(4) Whether the Court below rightly or wrongly confirmed the Judgment entered in favour of the Respondent by the trial Court in the sum of USD9,188,201.00 and N144,303,981.00 (Grounds IV & IX)

(5) Whether absence of specific

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agreement or evidence of custom and trade usage on payment of Pre- Judgment interest and on liquidated nature of the claim, the Court below rightly confirmed the pre and post Judgment interests awarded against the appellant by the trial Court (Ground VIII).

(6) Whether the Courts below rightly or wrongly find that there was waiver of the time of completion of contract by the appellant (Ground VII).

As regards the respondents, an Amended Respondents’ Brief of Argument filed on their behalf on 6/11/2017 which was settled by one Peter Olomola and lfeanyi Clinton Uwa. Six issues for determination were also decoded therein, which I shall reproduce hereunder. The issues are:-

(A) Whether or not the Federal High Court had jurisdiction to entertain the suit (Ground III)

(B) Whether having regard to the concession by the Respondents in their brief of argument, that filing of Exhibits/documents was not a condition precedent to the transfer of the suit to general cause list which formed the basis of the Judgment of the trial Court, the learned Justices of the Court of Appeal should, without a Respondents’ notice to Affirm the Judgment on

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different ground, not have set aside the Judgment of the Court below (Ground I)

(C) Whether the learned Justices of the Court of Appeal rightly or wrongly failed to act on the Appellants unchallenged affidavit showing cause why the appellant should be allowed to defend the suit. (Grounds V and VI)

D) Whether the Court below rightly or wrongly affirmed the judgment entered in favour of the Respondents by the trial Court in the sums of USD9,186,201,00 (sic) and N144, 303,98 1,00 (Grounds IV & IX)

(E) Whether or not the lower Court was right to have affirmed the decision of the trial Court to award pre and post Judgment interest (Ground VIII)

(F) Whether or not the Court below was right to have found that there was waiver of the time clause by the appellant. (Ground VII)

SUBMISSION OF LEARNED COUNSEL OF THE APPELLANT ON ISSUES FOR DETERMINATION

ISSUE NO 1

The first issue raised by the appellant relates to issue of jurisdiction even though it was never raised at the Courts below. As rightly submitted by the learned appellants counsel, issue of jurisdiction can be raised at any time and

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before any Court including this apex Court and same issue can also be raised by the Court suo motu. The learned appellant’s counsel submitted that before raising this issue in this Court, he sought and obtained leave of this Court to raise the issue of jurisdiction for the first time before it. The learned counsel conceded that the Respondents as plaintiffs at the trial Court, sued at the Federal High Court, and their cause of action was for recovery of sums of money allegedly due to them from the appellant. According to him, under contract of service rendered to the appellant. He referred to the endorsement on their statement of claim at page 5 of the record of appeal He submitted that both the trial Court and the Court of Appeal (i.e. the lower Court) made findings in that regard, in that both Courts below in their Judgments/findings referred to the entire transaction between the plaintiffs and defendant now respondents and appellant respectively as “a contract.

It was further submitted on behalf of the appellant, that it was evidentially shown by the Originating Summons, statement of claim and the Judgments of the two lower Courts, that the

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cause of action in the suit right from the outset was grounded on contract of service relating to recovery of payment allegedly due to the respondents in respect of service contract rendered by the respondents herein, for the benefit of the appellant’s letters of request.

The learned counsel for the appellant further argued that since the respondent’s cause of action pertains to or was based on simple contract, it thereupon, becomes outside the jurisdiction of the Federal High Court (trial Court) as provided by Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which clearly prohibits the Federal High Court from assuming jurisdiction on cause of action based on or relating to simple contract. Learned senior counsel on the above submission, referred to the underlisted Judicial authorities which decided that case of simple contract devoid of statutory flavor, notwithstanding the inclusion of the Federal Government or any of its agencies as parties, only the State High Court or High Court of the Federal Capital Territory has jurisdiction and NOT the Federal High Court. See the cases of ONUORAH VS KRPC Ltd (2005) 6 NWLR (pt 921) 393 at 405

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(Paras A-D; ADELEKAN v. ECULINE NV (2006) 12 NWLR (pt 993)33 at 52, ITPP Ltd v UBN Plc (2006) 12 NWLR (pt 995) 504 F C E OYO VS AKINYEMI (2008) 15 NWLR (pt 1109} 21 at 49 MINISTER of WORKS vs TOMAS NIG Ltd (2002) 2 NWLR (pt 752) 744 at 777. On the authorities of the above listed cases, the learned appellant’s senior counsel, urged this Court to hold that the trial Court lacks Jurisdiction to entertain and determine the matter.

ISSUE NOS 2

Issue no 2 deals with whether in the light of the concession by the respondents that filing of exhibits/documents is not a condition precedent to the transfer of the suit to general cause list.

On this second issue, the learned counsel to the appellant argued that it was needless for the appellant to exhibit documents to the affidavit attached to its notice of intention to defend the suit before being allowed to defend same. It referred to the reaction of the respondents’ counsel at page 109 of the record, paragraph 5. 17 where he conceded to his notice for intention to defend the Judgment of the trial Court, which was to the effect that the affidavit showing cause must contain documents/exhibits.

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He therefore submitted that once the respondents’ counsel confesses his inability to support the judgment of the trial Court the Court below should have set aside the judgment. He cited the case of I.H LTD V SONEB ENT. LTD (2010) 4 NWLR (pt 1185) 561 SC. He then urged this Court to resolve this issue in favour of the appellant

ISSUE NO 3

Issue no 3 relates to whether the Court below was right to hold that paragraphs 3-14 of the appellant’s affidavit in support of the notice of intention to defend the action, was mere hearsay.

Learned senior counsel for the appellant referred to the judgment of the Court below at pages 745-746 of the record and submitted that inadmissibility of paragraphs 3-14 of the affidavit in support of notice of intention to defend the suit, was not the basis of the judgment of the trial Court. He therefore submitted that a respondent who desired to support the Judgment of a Court on ground different from the ground relied upon by the trial Court, must file a Respondent’s Notice to affirm such decision on such different ground(s). See Order 2 Rule 2 of the Court of Appeal) Rules.

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He cited the case of D.A.(NIG) AIEP Ltd v Oluwadare (2007) 7 NWLR (pt 1033) 336 at 385

He submitted that contrary to the decision of the Court below, the contents of the affidavit in support of notice of intention to defend, were not exclusively based on some of the paragraphs of the affidavit in support of the notice of intention to defend which restated the contents of the documents which were before the trial Court. He then urged this Court to also resolve this issue in favour of the appellant

ISSUE NO 4

Issue no. 4 pertains to whether the Court below was right or wrong in confirming the judgment entered in favour of the respondents by the trial Court in the sum of USD9,186,201.00 and N144,303,981.00

Here, the learned counsel to the appellant argued that there was no consensus ad idem on the amount of money payable by the appellant to the respondents for the services allegedly rendered by them to the appellant. He argued that the appellant never agreed with the respondents to pay fee calculated at the rate of 5% of the recoveries or the amount recoverable and that 18% was what was agreed upon vide the letter of offer/engagement. He argued that the

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respondents unilaterally varied the terms of payment from the agreed 18% to 5%. He submitted that unless accepted, a counter offer is incapable of being enforced as a contract. He cited and relied on the case of NNSC v Africor Incorporation (1994) 3 NWLR (pt 332) page 392 at 344. He argued that the appellant deposed to the fact that the contract was not satisfactorily executed and the Court below ignored the fact that the appellant expected at this stage, to the appellant grant leave to defend the suit to establish the merit of the defence it raised in the affidavit for showing cause. He then urged the Court to resolve this issue in favour of the appellant.

ISSUE NO 5

Issue no 5 deals with the award of pre-Judgment interests. Learned silk for the appellant argued that the respondents did not tender any evidence of agreement by the appellant to pay them interest on the outstanding professional fee and that there was no evidence of custom or trade usage which entitles the respondents to charge interest on the outstanding professional fee.

He submitted that the 10% pre Judgment interest award in favour of the respondents is not liquidated sum and the

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Court is limited to the Judgment in respect of liquidated and the ascertained sum of money. He urged the Court to resolve this issue in favour of the appellant.

ISSUE NO 6

Issue no 6 queries whether there was waiver of time of completion of the contract.

The learned counsel to the appellant argued that the Court below wrongly applied the doctrine of waiver and acquiescence against the appellant, when the respondents did not plead waiver and acquiescence as the basis of their claims at the trial Court. He cited the case of Bank of the North Ltd v Yau (2001) 10 NWLR (pt 721) page 408 at 447 paragraph f. He submitted that where waiver has not been specifically pleaded, the respondent who did not plead waiver is not entitled to rely on same as a defence or claim. He cited the case of Okonkwo v CCB paragraph C (2003) 8 NWLR (pt 522) page 47 at 407-408 H-B. He urged the Court to resolve this issue in favour of the appellant and to finally allow this appeal.

In his response to the argument of the learned appellant’s counsel, the learned counsel to the respondents, as I stated supra, also formulated 6 issues for determination of the appeal.

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Their counsel’s submissions go as below;-

SUBMISSIONS OF LEARNED COUNSEL FOR RESPONDENTS

ISSUE NO 1

The respondents’ Issue no 1 deals with whether or not the Federal High Court had jurisdiction to entertain the suit. The learned counsel for the respondents argued that the cause of action as can be seen from the originating processes, relates to the administration or management and control of the appellant and not contract per se. He referred to Section 257 of the 1999 Constitution (as amended) and submitted that the claim of the respondents at the trial Court bordered on the administration or management control of the appellant. He submitted that even if action was founded on a contract, the federal High Court would still have jurisdiction to entertain same, as the Court has jurisdiction to entertain all matters that involve the Federal Government or any of its agencies. He urged this Court to resolve this issue in favour of the respondents or in the alternative to transfer the matter to High Court of Lagos State, if this Court holds that the Federal High Court has no jurisdiction in accordance with Section 22 (2) of the Federal High Court Act. 2004.

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ISSUE NO 2

Issue no 2 relates to whether filing of exhibit/documents was a condition precedent to the transfer of a suit to general cause list. On this issue, the learned counsel to the respondents argued that the suit was not transferred to the general Cause list not because it did not attach documents to its affidavit, but simply because the appellant did not place any material before the Court which discloses any defence to the suit.

Regarding the contention of the appellant that the respondents’ argument that the appellant’s affidavit in support of notice of intention to defend, contains hearsay evidence, that point was not raised at the High Court. He referred to page 52 of the record where the respondents were reported to have argued that. (See pages 543 at 550 of the Record. He also referred to page 62 of the record and submitted that it is misleading for the appellant to say that the issue of affidavit for being hearsay was not raised by the respondents at the High Court and that it was also not correct that the respondents urged the Court to give judgment based on fresh ground that the affidavit evidence is hearsay. He urged

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the Court to resolve this issue in favour of the respondents

ISSUE NO 3

Issue no 3 pertains to whether the Court below was right or wrong to have acted on unchallenged affidavit showing cause why the appellant should be allowed to defend the suit

The learned counsel to the respondents submitted that in the Undefended List Procedure, a plaintiff is not permitted to file any affidavit to controvert facts contained in the affidavit filed in support of the notice of intention to defend and that it is left for the Court to determine the suit based on the facts supplied by the parties whether Judgment should be given in favour of the plaintiff or to transfer the suit to the general cause list. He therefore submitted that failure of the respondents to file further affidavit to challenge the averments in the appellants affidavit in support of the notice of intention to defend, does not amount to an admission of facts stated therein. He cited and referred to the Judgment of the case of S. A. V v Tropical Industry Co Ltd (2002) FWLR (pt 121), 1913.

Learned counsel contended further, that the respondents are firms of chartered accountants and not recovery agents and

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that the only means of recovery known to law is through litigation or arbitration and that it will be illegal to instruct the respondents to do recovery. He urged the Court to resolve this issue in favour of the respondents.

ISSUE NO 4

Issue no 4 deals with whether the Court below rightly or wrongly affirmed the Judgment entered in favour of the respondents in the sum claimed.

He conceded that the appellant agreed to pay the respondents 18% of recoveries but due to the high amount discovered and in order not to smite a hole in the pocket of the appellant, the respondents wrote to inform the appellant that they were willing to accept a reduced amount of 5% as opposed to the initially agreed 18%. He referred to the contention of the appellant that the respondents varied the contract by reducing the fee and therefore no contract because of the variation. In response to this contention, he submitted that since the appellant is contending that they do not accept the reduction; their recourse has to be made to the old and existing contract. He urged this Court to give effect to the earlier contract and hold that the

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respondents are entitled to same. On non satisfactory execution of the contract, he submitted that the appellant failed to substantiate the claim that the contract was not performed satisfactorily. He argued that there was never at any point in time, the appellant had communicated its alleged dissatisfaction to the respondents services rendered to it. He therefore submitted that the issue of non-satisfactory performance of the contract raised by the appellant can, at best, be described as an afterthought or a calculated bid to abdicate in their obligation to pay for the services rendered to it.

On the issue of no recoveries no pay; he argued that the instruction never commissioned the respondents to recover the sums in the Report. He submitted that the respondents are firms of chattered accountants and not a recovery agent and all they were instructed to do was to reconcile the appellant’s account as stated in the letter dated 22/1/2003.

On the issue of non-execution the contract within the agreed 35 days, he submitted that a reasonable conclusion from the conduct of the appellant is that it waived that condition. He

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cited the case of FASADE v BABALOLA (2003) 11 NWLR (pt 830) 26. He argued that the respondents submitted Interim Report on 16/5/3003, while the Final Report was submitted on 27/4/2004 and the appellant without saying that it came in too late a time, hence that was unacceptable. He therefore submitted that the appellant is stopped from raising these issues of contract not being executed within 35 days. He urged the Court to resolve this issue in favour of the respondents.

ISSUE NO 5

Issue no 5 deals with the award of pre and post judgment interest

The learned counsel for the respondents submitted that a trial Court can award pre-Judgment-interest, as the authority to award judgment is contained in the Rules of Court. He referred to Order 42 Rule 7 of the Federal High Court (Civil Procedure) Rules 2004 and the case of BEGH v UHS AL LTD (2011) 7 NWLR (pt 12246) 246.

He therefore submitted that the trial Court acted within the ambit of its Rules in awarding interest on the claims of the respondents.

ISSUE NO. 6

Issue no 6 queries whether or not the Court below was right to have found that there was waiver.

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The learned counsel to the respondents submitted that the Court below was right, having considered the entire facts before reaching to the conclusion that it was too late in the day to raise the issue of late submission of reports and that this complaint of the lateness was raised only after the suit was instituted hence, that attitude constituted a waiver. He cited the case of AUTO IMPORT EXPORT v ADEBAYO (2005) 19 NWLR (pt 959) 44.

On the contention of the appellant that waiver is a defence which ought to be pleaded, he contended that a party need not plead waiver in their pleadings in order to enjoy the defence. He referred to the case of Auto Import Export v Adebayo (2005) supra. He again submitted that issue of waiver is an issue of law and there is therefore no legal obligation on the respondents to have pleaded same. He then urged this Court to resolve this issue in favour of the respondents and to finally dismiss the appeal.

REPLY OF THE APPELLANT

Reply of the appellant on issue 1, relates to facts on issues no 2 and 3 which had already been argued in the appellants brief on issue which is on facts which had already been argued in the appellant’s main

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Brief of argument.

On issue Nos 1 and 2, the respondents’ counsel argued that the cases relied upon by the appellant cannot apply to the instant case, as none of those cases deal with pre-Judgment interest awarded as ordered under Undefended list Procedure.

On issue No. 6, he argued that in Auto Import Export’s case, the suit was commenced by parties on Award and that pleadings merely filed and evidence led at the trial which made it easy for the trial Court to resolve the issue of waiver. He therefore submitted that the issue of whether or not the appellant waived the late completion date, is not the one that should have been summarily dismissed by the learned trial Judge. He then urged this Court to dismiss the appeal

RESOLUTION OF ISSUES FOR DETERMINATION

The first issue for determination raised in the appellant’s brief of argument and the corresponding issue in the respondents’ brief touch on issue of jurisdiction. As rightly pointed out, the parties in this appeal did not raise the issue of jurisdiction in the two Courts below. At any rate and notwithstanding the fact that issue of jurisdiction was never raised in the two

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Courts below, in view of its fundamental nature and also since the law is trite that issue of jurisdiction can be raised by any of the parties at any stage of the proceedings even at the Supreme Court, such issue must first of all be addressed by me. See Francis Durwode vs State (2000) 15 NWLR (pt 691) 467. I must however stress here, that it is always ideal and better that issue of jurisdiction is raised at the earliest stage of the proceeding in order to avoid wasting the precious time of the Court as seemingly done by the appellant in this appeal at the lower Court.

The approved practice is that when issue of jurisdiction is raised, the Court must carefully peruse the claim of the plaintiff in order to determine the crucial issue of jurisdiction. See Shell B P Ltd vs Onasanya (1979) NSSC 334; Opiti v Ogbewi (1992) 4 NWLR (pt 234) 184 at 195, Adeyemi vs Opeyori (1976) 9-10 SC 3 at 49. This is very important, because it is well settled law, that where the Court lacks jurisdiction to adjudicate on a cause or matter, everything done in such want of jurisdiction, is a nullity. See Mustapha vs Governor of Lagos State (1987) NWLR (pt 58).

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It has long been a settled law, that when a Court is faced with question as to whether it has jurisdiction in a matter or not, it is incumbent upon it, to refer to the subject matter of the claim as pleaded by the plaintiff.

In the present case, the claim on which the plaintiffs (now respondents) before the trial Court upon which they prayed for the determination of same are reproduced hereunder;-

(a) An order directing the Defendant to pay the sum of USD9,186, 701 to the plaintiffs being agreed fees for the consultancy services rendered by the plaintiffs to the Defendant.

(b) Interest on the said sum of USD 9,186,701 at the rate of 10% from 27th April 2004 writing the final liquidation of the debt

(c) An order directing the defendant to pay the sum of N144,303,981.00 to the plaintiffs being the agreed fee for the consultancy services rendered by the plaintiffs to the Defendant

(d) Interest on the sum of N144, 303.981 at the rate of 10% from 27th April 2004 writing the final liquidation of the debt (emphasis supplied.)

My understanding of the above claims, is that the defendant (now appellant) employed the plaintiffs/respondents to render

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some consultancy services on its behalf on the agreed sum claimed which said services were rendered by the respondents/plaintiffs, but the defendant/appellant failed or neglected or refused to pay. By not paying the sum claimed, the defendant (now appellant) therefore became indebted to the plaintiffs/respondents. The subject-matter or cause of action, to my mind, is and remains more or less a claim for recovery of such debt owed by defendant/appellant. Therefore in my view even if the lower Court referred to the said agreement to be a contract or simple contract such in true sense, is a misnomer or merely a matter of semantic because such transaction does not amount to a simple contract as the appellant is insinuating in order to oust the jurisdiction of the Federal High Court. It is also my considered view, that a close look at the cause of action, leaves no one in doubt, that the cause of action related to or was transmitted out of or from administration or management and control of the appellant company.

The jurisdiction of the Federal High Court especially as it relates to the present suit/action is derived from the

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provisions of Section 251 (1) of the 1999 Constitution (as amended, which provides thus,-

(a) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly the Federal High Court shall have and exercise Jurisdiction to the exclusion of any Court in civil causes and matters-

(b) The administration or management and control of the Federal Government or any of its agencies

From the facts of the instant case, as can be gleaned from the record of appeal, the appellant herein, simply used its administrative powers and instructed vides its letter dated 22/1/2003, to assign the respondents to reconcile the concessions it earlier gave to Intel Services Limited Nigeria, Liquefied Natural Gas Ltd and Mobil Production Nigeria Unlimited, because the appellant was desirous of reconciling the position of the concessions it earlier gave those named companies. There is no doubt that the respondents have rendered the service of reconciliation as consultants. I have read the cases of Onuorah v K R PC Ltd (2005) 6 NWLR (pt 921) 393 at 405; Adelekan v. Ecu-Line N V

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(2006) 12 NWLR (pt 993) 33 to 52. I T PP Ltd vs UBA PLC (2006) 12 NWLR (pt 1109) 21 FCE Oyo vs Akinyemi (2008) 15 NWLR (pt 1109) 21 and Minister of works vs Tomes Nigeria Ltd (2002) 2 NWLR (pt 752) 74, in which this Court held that the Federal High Court lacks jurisdiction on matters relating to simple contract. However, as I posited above, the transaction executed by the parties in the present case did not pertain or relate to simple contract. Those cases are therefore distinguishable from the facts of the present case, hence those cases are not relevant or applicable to the facts in the present case. I accordingly so hold.

Again, there is no doubt that the appellant is an agency of the Federal Government, hence the trial Court has jurisdiction to adjudicate in the matter by virtue of the provisions of Section 257 (1) of the 1999 Constitution (as amended), contrary to the stance held by the learned senior counsel for the appellant. Having said so, I resolve the first issue against the appellant and in favour of the respondents

Issues No 2

On the second issue, the appellant contends in its Amended Brief of argument, that the trial Court

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basically denied the defendant/appellant leave to defend the suit simply because it failed to attach documents to its affidavit in support of its Notice of Intention to defend the suit. On the other hand, the learned counsel for the respondents contended otherwise. It was argued, on behalf of the respondents that the leave was not given to the appellant to defend the suit by the trial Court simply because the appellant failed to place any material before the trial Court which disclosed any defence to the suit. In the first place, I must state that it is not the correct position of the law, that a party who has filed a notice of intention to defend must, as a condition precedent, attach a document in proof of or to disproof the deposition contained in the affidavit. All that the law requires, is to provide sufficient or adequate facts in the said affidavit which call for thorough scrutiny or inquiry.

In other words, attachment of documents by the appellant was/is not and was in fact, never given as the reason why the appellant was denied leave to defend the suit.

It needs to be emphasized here, that in an action brought under the Undefended List, as in this instant case, the

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Court is required to consider only the evidence contained in the affidavit filed by the defendant in support of his Notice of Intention to defend the suit. Once the Court comes to the inevitable conclusion that the affidavit does not disclose a defence on the merit or a triable issue, then the Court is to proceed with the hearing of the suit as an Undefended suit and enter judgment accordingly without calling the defendant, even if present in Court, to answer or be heard. See HAIDO v USIMAN (2004) 3 NWLR (pt 859) 62; NKWO MARKET COMMUNITY BANK NIGERIA LTD VS PAUL EJIKEME UWABACHI OBI (2010)14 NWLR (pt 1213) 169. Also this Court in the case of ACB Ltd v GWAGWADA (1994) 4 SCNJ (pt 265) held that the affidavit in support of the Notice of Intention to Defend must show that the grounds for asking to be heard in defence, are not frivolous, vague or disquiet to delay the trial of the action and it must show that there is dispute between the parties as had been shown in this case.

From the record of appeal, it is clear from the judgment of the trial Court, that non-attachment of the exhibits to the

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affidavit in support of the suit by the appellant was not given as the reason why the trial Court refused to grant leave to the appellant/defendant to defend the suit. The actual reason for the refusal to grant such leave, was clearly stated by the trial Court at page 69 of the record where it held thus;-

In fact the defendant did not place any material before the Court to show that he is serious with this case or that there is any substantive matter to be heard at trial. This, I believe, is just filed to frustrate the plaintiffs, out of their legitimate earnings. I therefore enter judgment in favour of plaintiffs as claimed, as the Defendant has no reasonable or any defence to this action.”

Thus, from the above finding of the trial Court, failure to attach documents to the affidavit was far from being the reason for withholding leave to the appellant to defend the Suit.

On its part, the Court below after considering the above findings of the trial Court, had this to say at page 6 of the record as below-

“The defence set upon by the appellant was a sham defence and was rightly rejected by the trial Court.”

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In fact looking at the judgment of the trial Court, there does not seem to be anywhere where the trial Court attributed to the non-attachment of some documents to the defendant/appellant’s affidavit, as the reason why it withheld or declined to grant leave to the appellant to defend the suit or why it refused to transfer the Undefended List suit to the general cause list. This issue is also resolved against the appellant

Issue No 3

On issue No 3, the learned appellant’s senior counsel raised the question whether paragraphs 3 to 14 of the appellant’s affidavits in support of notice of intention to defend the suit, were hearsay evidence and therefore not admissible. Here, the appellant hinged his submissions on what it perceived as the respondents’ contention at the lower Court that the appellant’s counsel or litigation clerk not being party to the transaction entered by the parties, then their evidence was hearsay and therefore inadmissible. I think if one closely looks at the entire proceedings, especially the judgment of the trial Court, one can say that the latter or trial Court never made the assertion that the affidavit supporting the notice

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of intention to defend the suit was hearsay. The trial Court attributed its reason for withholding leave to defend, on non-presentation of sufficient materials before it as would warrant or justify it to use its discretion to grant the leave to defend. There was nowhere it was stated by the trial Court that it rejected the request to grant leave to defend, because the evidence in the affidavit was hearsay. The refusal to grant the leave to defend as I posited above was purely based on the backdrop that the lower Court held that the defence set upon by the appellant was a sham hence it held that the trial Court was right in rejecting such purported defence presented by the appellant.

I have also closely considered the arguments advanced by both parties learned counsel on the issue of some of the averments raised in the supporting affidavit being or amounting to hearsay evidence. As I stated earlier, the trial Court gave its reason for refusing to grant the leave to defend in its Judgment and such reasons did not accord with the allegation that some of the paragraphs amounted to hearsay evidence and therefore inadmissible. To me, that issue of the said paragraphs of the affidavit being or amounting

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to hearsay evidence, is of no moment since that was not the substratum of the decision of the trial Court. It is however noted by me, that there was no further affidavit filed to challenge the averments in the paragraphs under reference in the supporting affidavit filed by the appellant/defendant. It is also noted by me, that despite the absence of any notice of intention to urge the Court below to affirm the decision of the trial Court on other grounds besides the ones relied on by the trial Court, the Court below dealt at lengths with the averments in the paragraphs under reference where it stated thus, inter alia,-

A look at the affidavit in support of Notice of Intention to defend reproduced above show that the deponent deposed to all material facts not from his personal knowledge but from information availed him by Appellants counsel and paragraphs 3 to 14 of the said affidavit all contain facts not within the knowledge of the deponent but information passed to him not from his employer, the Appellant but from counsel.

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In any case despite the above observations or findings by the Court below, the same Court found that the defence posed by the defendant/appellant was a sham as earlier found by the learned trial Judge. It is on that backdrop, that I also regard the issue of hearsay delved into by the lower Court as of no moment, since both Courts after duly considering the affidavits evidence, resolved or arrived at the correct conclusion that the defendant/appellant’s defence was a sham and that no sufficient material was placed before the trial Court, hence the trial Court rightly denied leave to the appellant to defend the suit, which in my view, was correct. If is also for these reasons that I resolve both the second and third issues for determination against the appellant herein.

Issue No 4

This issue relates to the propriety of the affirmation by the lower Court of the judgment of the trial Court in awarding in favour of the respondents, the sum of $9,186,201; 00 and N144,303,981 – The appellant contends that there was no consensus ad idem on the exact amount payable to the respondents by the appellant for the services rendered to it (the appellant) by them (i.e. the respondents).

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He argued that it never agreed with the respondents to pay them 5% of recoveries or the amount recoverable as claimed by the respondents. The appellant vehemently contended that what it agreed upon with the respondents as per its letter was simply 18% and NOT 5%. Therefore, the claim of 5% by the respondents tantamounts to unilaterally varying the terms of payment from 18% to 5% and that also, amounted to counter offer by the respondents which, of course, require the acceptance of the appellant for same to be enforceable. He cited the authorities of NNSC vs Agric Incorporation (1994) 3 NWLR (pt 332) 392 at 344; Council of Yaba Tech v Nigeria tag Contractor (1989)1 NWLR (pt 95) 99. Learned counsel for the Appellant contended that in the absence of any acceptance of the counter offer made by the respondents by the appellant on the 5% of recoveries, then the respondents can be said to have based their claims on a non-existent contract, since the basic principles of valid contract which are offer and acceptance were absent. See Innih v Ferado A & S Ltd (1990) 5 NWLR (pt 152) 604 at 622.

Conversely, the respondents’ learned counsel urged that

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the senior counsel’s argument be discountenanced, even though he conceded that the appellant agreed to pay 18% of recoveries. However, in view of the high amount of discoveries and in order to reduce the burden of payment of the 18% agreed upon earlier, the respondents intimated their willingness to reduce it to 5% only.

There is nothing to be gained by saying, that the submission of the learned senior counsel for the appellant that the agreed percentage payable to the respondents for the recoveries as duly agreed upon by the parties, was 18% and not 5% as presented by the respondents might be its reason for conceding to the payment of the lesser sum of 5%, amounts to variation. For the variation of the agreed sum claimed by the respondents to be valid therefore, the appellant must be informed in writing and it (the latter) must also accept the new or lesser amount of their claim in writing for same to be valid and enforceable, since it is a fresh agreement. It is trite law that agreement for variation of an existing contract must possess the basic characteristics of a valid contract which are known to be offer, acceptance and

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consideration. See Idufueko v. PFizer Products Ltd and Anor (2014) LPELR 22999 (SC); Unity Bank Plc v Olubiyi (2015) NWLR (pt 7452) 203 at 242.

Now in this instant case, it is as clear as crystal that vide the correspondences between the parties the agreed sum to be paid for recoveries was 18% and not 5%. That was what the parties accepted. It was based on such agreement that the respondents did their own part of the obligation. The respondents made a move and did claim 5% instead of the agreed 18% payment which was never agreed upon by the appellant, even though it was a reduction of the burden on the obligation on it, the appellant.

However, there appears to be no breach on the part of the respondents in the transaction since they had duly executed the job assigned to them by the appellant creditably well. I do not think it will meet the Justice of the matter to say that the claim for lesser percentage as their entitlements would completely vitiate the entire agreement. The justice of the case is that the Court should enforce or revert to the original percentage of 18% payment on the recoveries and recoverable as earlier agreed upon, instead of

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the 5% reduced amount which as I stated earlier, was never agreed upon in writing and accepted by the appellant since the latter appears to reject it. It will amount to sheer injustice to hold otherwise, since the respondents had apparently fulfilled or satisfied their obligation to the satisfaction of the appellant while the latter reneged its obligation by failing or refusing to pay them their hard-earned entitlements. It is my view therefore, that the lower Court had rightly affirmed the judgment entered in favour of the respondents. The fourth issue is therefore hereby resolved against the appellant.

ISSUE NO 5

On this issue, the appellant queries the affirmation by the Court below of the pre and post Judgment interest awarded by the trial Court which the lower Court endorsed. On this issue, the learned senior counsel for the appellant argued that the payment of such interest was never agreed upon by the parties. He also submitted that no evidence was adduced in support of the claim of such interests on the outstanding professional fees. He further argued that the respondents did not also lead evidence of any precedent on

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such payment based on any custom or trade as would justify their claim of such interests awarded by the trial Court and endorsed or affirmed by the lower Court.

I have closely examined the Writ taken by the plaintiffs (now respondents) which was filed at the trial Court and noticed that such claim of interest was really made by the plaintiffs/respondents against the appellant as defendants thereat.

The law is well settled that before a pre-Judgment interest can justifiable be awarded, a plaintiff often pleads that he is entitled to such interest and also that where he so pleads it, he must prove the basis for his entitlement of same by showing that it was supported either by statute or contract agreement between the parties or based on mercantile custom or on principle of equity. Such claim of interest is normally pleaded and proved, See AG Ferrero & Company Ltd vs Henkel Chemicals Nigeria Ltd (2011) LPELR – 12(SC); Adeyemi vs Lan and Baker Nig Ltd (2000) 7 NWLR (pt 663) 3 at 48.

It is however a valid law that a Court can still grant pre-Judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such a

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party did not plead or adduce evidence in proof of such claim. Such interest, like in this instant case, naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving a party from the use of and/or enjoyment of the sum involved which is the fruit of his Judgment. See Petgas Res Ltd v. Mbaneto (2007) 6 NWLR (pt 1081) 545

In the present case, the respondents had for quite a long time, submitted their final report to the appellant but the latter deliberately refused or neglected to pay them their hard-earned entitlement as agreed upon. Again, by Order 42 Rule 7 of Federal High Court (Civil Procedure) Rules 2000, the trial Court has the power to award judgment interest. The provisions read thus,-

The Court at the time of making any Judgment or order or at any time after wards, may direct the term with which the payment is to be made or other act is done, reckoned from the date of the judgment or orders, or from some other time as the Court deems fit and may order interest at a rate not exceeding 10% per annum to be paid upon any Judgment, commencing from the date thereof or afterwards, as the

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case may be.”

In view of the above provisions, the trial Court was therefore right in making the award of interest. The Court below was also correct when it affirmed the trial Court’s order for the award of the said interest in the instant case. As a corollary, this issue must be and is also hereby accordingly resolved against the appellant.

ISSUE NO 6

On this issue, the appellant queries whether the Court below was correct when it found that there was a waiver of time clause by the appellant. It is clear that vide the agreement entered into by the parties in the suit, the respondents were to fully execute the job assigned to them by the appellant within 35 days. However, they submitted their first report on 16/5/2003 and the second report on 27/4/2004. The period of the submission of the final report was no doubt outside the agreed period of 35 days. It is note worthy however that the appellant never complained to the respondents on the submissions of each of the first and final reports outside the 35 days earlier agreed upon.

Also when the bill of charges was presented to it, the appellant did not reject it or raise the issue of

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late submission of such reports at the time of the presentation of the bill of charges. The appellant merely picked or raised the issue of late submission of the reports after the suit was instituted at the trial Court which was two and a half years after the submission of the final report to it by the respondents. The question is, “Could the attitude of the appellant in that regard amount to waiver To my mind, waiver or acquiescence presupposes that the person is to be bound where he is fully cognisant or aware of his rights, yet he neglects to enforce such rights, or chooses to benefit instead of another, either by both of which he might claim. See Auto Import Export v Adebayo (2005) 19 NWLR (pt 159) 544. It is my considered view that waiver is an issue of law, and it is an elementary principle of law, that parties do not plead law but only facts.

The facts exposed by the respondents clearly show that the appellant had never timeously complained about the late submission of the reports until when the suit was instituted at the trial Court. It is my considered view that that failure to complain timeously amounted to waiver of such delay or

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late submission of the report to it by the respondents as rightly held by the trial Court and later endorsed by the learned Justices of the Court below. This issue is also hereby resolved against the appellant

I must state here, that I have duly perused the Appellant’s Reply Brief. The said Reply Brief filed by the senior counsel on behalf of the appellant merely contained re-arguments, repetition and or fine-tuning of the arguments earlier proffered in the appellant’s main brief. That is not the purport of a Reply brief at all.

Finally, it is noted by me, that there are concurrent findings of two lower Courts in this instant case. As a matter of practice and policy, this Court does not normally interfere with or disturb the concurrent findings of two lower Courts except on special or exceptional circumstances, such as where the findings are either perverse or there is misconception of facts, or misapplication of law. None of these viruses is prevalent in this case, hence I must refrain from tempering with the findings of the two Courts below.

On the whole, having resolved all the six issues for determination raised by the appellant against it, it

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is therefore my Judgment that the appeal is devoid of any merit. It fails and is accordingly dismissed by me. I affirm the Judgment of the lower Court which had also rightly affirmed the judgment of the trial Court. I award cost of N500,000 against the appellant herein, to be paid to the respondents.

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SC.218/2010