(2019) LPELR-46442(CA) - lawpavilionpersonal.comlawpavilionpersonal.com/ipad/books/46442.pdf · 616 at 630, OJENGBEDE vs. ESAN (2001) 18 NWLR (PT. 746) 791 and MONIER CONSTRUCTION

BONUM (NIG) LTD v. IBE & ANOR

CITATION: (2019) LPELR-46442(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON WEDNESDAY, 6TH FEBRUARY, 2019Suit No: CA/L/1445A/2016

Before Their Lordships:

UGOCHUKWU ANTHONY OGAKWU Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of AppealTOBI EBIOWEI Justice, Court of Appeal

BetweenBONUM NIGERIA LIMITED-CROSS APPELLANT - Appellant(s)

And1. CHRIS BAYWOOD IBE(Doing business under the name and style ofBaywood Dextron Ventures)2. BAYWOOD CONTINENTAL LIMITED-CROSS RESPONDENTS

- Respondent(s)

RATIO DECIDENDI

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1. CONTRACT - CONSENSUS AD IDEM: Whether parties must be in consensus ad idem in order to be bound by a contractualagreement"The hornbook principle of law is that in order for parties to be bound by their agreement, theymust be ad idem as its terms. See A-G RIVERS STATE vs. A-G AKWA IBOM STATE (2011) LPELR (633) 1 at 23-24 and BILANTEINTERNATIONAL LIMITED vs. NDIC (2011) LPELR (781) 1 at 23-24. It is not confuted that the parties were ad idem on thepayment of 1% as consultancy fees at the time of their contract in Exhibit CW1.1. The pertinent question is whether the partiesarrived at a similar consensus on the upward review of the consultancy fees to 2.87%, consequent upon the extension andrevision of the scope of work under the consultancy. The Cross Appellant contends that the Cross Respondents accepted thereview and relies, inter alia, on the conduct of the Cross Respondents in making payment on the invoice which was based on2.87% and also on Exhibit CW3 J. Now, in Exhibit CW3 J, the Cross Respondents while agreeing in principle on review requestedthe Cross Appellant to send the proposal for review and further discussion. This clearly shows that the parties had not reachedany consensus on the review as the same was to be subjected to further discussion. Undoubtedly, the upward review of theconsultancy fees to 2.87% remained inchoate. The Cross Appellant had rendered services under the consultancy agreement forwhich it was entitled to payment. The Cross Appellant raised its invoice for payment, albeit, predicated on 2.87% as consultancyfees. The Cross Respondents made some payment on the invoice. It is beyond disputation that a workman is entitled to hiswages; therefore the fact that some payment was made on the invoice does not connote an acceptance of 2.87% as the feesdue to the Cross Appellant. It could only have been so inferred if the payment made was in excess of the agreed 1% that theCross Appellant was entitled to as consultancy fees. This has not been shown to be so. I am therefore unable to agree with theCross Appellant that the conduct of the Cross Respondents in making some of the payment due on the contract amounted toacceptance of 2.87% as the fees, for which they were estopped by the doctrine of estoppel from asserting the contrary. It is afundamental principle of law that parties are bound by the terms of their contract and it is not open to one of the parties in theabsence of novation to unilaterally change or vary the terms of the contract by incorporating into it one or more terms that hadnot been agreed upon by both parties: MAIDARA vs. HALILU (2000) LPELR (10695) 1 at 19, GAMBAGA s. MBIU (2014) LPELR(41079) 1 at 17 and ISIYAKU vs. ZWINGIWA (2001) FWLR (PT. 72) 2096. Any variation of the agreed terms has to be by mutualconsent and there must be offer and acceptance of the variation for the required consensus ad idem to be present. SeeEKWUNIFE vs. WAYNE W. A. LTD (1989) LPELR (1104) 1 at 13 and UNITY BANK vs. OLATUNJI (2014) LPELR (24027) 1 at 47-48.The evidence on record does not bear out the meeting of the minds of the parties and their consensus on the extension andrevision of the scope of work and the upward review of the percentage payable to the Cross Appellant as consultancy fees. Theparties did not have a concluded bargain in that regard and so there was no binding contract for the payment of 2.87% asconsultancy fees to the Cross Appellant. See ATIBA IYALAMU SAVINGS & LOANS LTD vs. SUBERU (2018) 13 NWLR (PT.1637) 387 at 404."Per OGAKWU, J.C.A. (Pp. 51-54, Paras. E-D) - read in context

2. EVIDENCE - PRESUMPTION OF FACTS: Principles of law as it relates to presumption of facts"By Section 145 (1) of the Evidence Act, whenever it is provided that the Court may presume afact, the Court may either regard such fact as proved unless and until it is disproved or it may call for proof of it. Section 167 ofthe Evidence Act stipulates that the Court may presume the existence of any fact which it deems likely to have happened,regard being had to the common course of natural events, human conduct and public and private business in their relationshipto the facts of a particular case."Per OGAKWU, J.C.A. (P. 33, Paras. C-E) - read in context

3. EVIDENCE - WRONGFUL ADMISSION/REJECTION OF EVIDENCE: Whether a wrongfully admitted/excluded evidence couldconstitute a ground for reversing a decision on appeal"The law is that wrongful admission of evidence shall not of itself be a ground for the reversal ofa decision where it appears on appeal that such evidence cannot reasonably be held to have affected the decision and that thedecision would have been the same if such evidence had not been admitted. See EZEOKE vs. NWAGBO (1988) 1 NWLR (PT. 72)616 at 630, OJENGBEDE vs. ESAN (2001) 18 NWLR (PT. 746) 791 and MONIER CONSTRUCTION CO LTD vs. AZUBUIKE (1990) 3NWLR (PT. 136) 74 at 88. So even if Exhibit CW1.11 was not admissible by virtue of the stipulations of Section 83 (3) of theEvidence Act, the wrongful admission of the same, eo ipso, cannot form the basis for overturning the decision of the lower Courtwhere it transpires that the Cross Appellant did not prove its case on the percentage of consultancy fees payable to it. Section251 (1) of the Evidence Act provides as follows: "The wrongful admission of evidence shall not of itself be a ground for thereversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably beheld to have affected the decision and that such decision would have been the same if such evidence had not been admitted."So the question is whether without Exhibit CW1.11, the judgment of the lower Court would have been different. Where it will notmake any difference to the decision reached, then the wrongful admission shall not be a basis on which to reverse the decisionof the lower Court: YASSIN vs. BARCLAYS BANK DCO (1968) LPELR (25440) 1 at 14-15, OKONJI vs. NJOKANMA (1999) LPELR(2477) 1 at 46 and ALLI vs. ALESHINLOYE (2000) LPELR (427) 1 at 51-52."Per OGAKWU, J.C.A. (Pp. 47-49, Paras. E-A) -read in context

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4. JUDGMENT AND ORDER - AWARD OF COST: Principles of law as regards award of cost"...The disceptation under this issue is with regard to the costs awarded in favour of the CrossRespondents by the lower Court. Let me restate that there was a claim and counterclaim before the lower Court and the partiesregistered relative successes in their respective claim and counterclaim. So the parties all succeeded in their action. However, inexercising discretion to award costs, the lower Court only awarded costs in favour of the successful Cross Respondents; no costswere awarded in favour of the equally successful Cross Appellant. Now, in these circumstances, was the cost awarded in favourof the Cross Respondent a proper exercise of judicial discretion? The position of the law is that costs follow event and asuccessful party should not be deprived of his costs unless for good reasons. See SAEBY vs. OLAOGUN (1999) 10-12 SC 45 at 59.In AKINBOBOLA vs. PLISSON FISKO NIGERIA LTD (1991) 1 NWLR (PT. 167) 270, Kawu, JSC stated: "The award of costs is ofcourse, always at the discretion of the Court which discretion must be exercised both judicially and judiciously... It is also a well-established principle that costs follow events and that a successful party is entitled to cost unless there are special reasons fordepriving him of his entitlement..." The essence of costs is to compensate the successful party for part of the losses incurred inthe litigation. Costs cannot cure all the financial losses sustained in the litigation. It is also not meant to be a bonus to thesuccessful party, and it is not to be awarded on sentiments. The award of costs being a matter within the discretion of the trialCourt, an appellate Court will not normally interfere in the exercise of discretion by the trial Court in awarding costs exceptwhere it is shown not to have been exercised judicially and judiciously. The aim of the award of costs is to indemnify orcompensate the successful party for expenses incurred in the course of the litigation. Costs are however not meant to punishthe unsuccessful party. See OYEDEJI vs. AKINYELE (2001) FWLR (PT. 77) 970 at 1001, M. H. (NIGERIA) LIMITED vs. OKEFIANA(supra) and ERO vs. TINUBU (2012) LPELR (7869) 1. In GAMBARI vs. ILORI (2002) 14 NWLR (PT. 786) 78 at 103-104, Mohammed,JCA held as follows: "I shall however comment briefly on the complaint of the appellant on the N5000.00 costs awarded againsthim by the trial Court which the learned Counsel to the appellant described as improper and not supported by evidence orsubmission of Counsel relating to out of pocket expenses. Unquestionably, the award of costs by the Court to the successfulparty falls squarely within the discretionary domain of the Court, which discretion as the law requires, must be exercisedjudicially and judiciously particularly in the absence of any guidance in the various civil procedure rules of the High Courts ascontained in the Supreme Court Rules and the Court of Appeal Rules. While it is true that a successful litigant should not bedenied costs, it is firmly established that costs must follow the event but many a time circumstances and for good reasons, thedefeated party may not be damnified in costs... As a general principle therefore, it may be said that costs are in the discretion ofthe Court and for that reason, where the Court exercised its discretion judicially and judiciously as opposed to doing socapriciously or upon any wrong principle, an appellate Court is without power to interfere with such honest exercise of theCourt's discretion." Order 49 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2012 referred to by the partiesstipulates as follows: "(1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to beindemnified for the expenses to which he has been necessarily put in the course of proceedings, as well as compensated for histime and effort in coming to Court. Such expenses shall include: (a) The cost of legal representation and assistance of thesuccessful party to the extent that the Judge determines that the amount of such cost is reasonable; (b) The travel and otherexpenses of parties and witnesses to the extent that the Judge determines that the amount of such expenses is reasonable, andsuch other expenses that the Judge determines ought to be recovered, having regard to the circumstances of the case. (2) Whencosts are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time ofdelivering the judgment or making the order. (3) When the Judge deems it to be impracticable to determine summarily theamount of any costs which he has adjudged or ordered to be paid, all questions relating thereto shall be referred by the Judge toa Taxing Officer for taxation." It is evident that the above provision deals with the principle to be observed by a Court in fixingcosts to be awarded to the parties. Going by the strict application of the provision, both parties having registered success in theaction, and therefore "in the right" were entitled to costs. The lower Court however exercised discretion by awarding costs to theCross Respondents only. So costs were awarded against the successful Cross Appellant. In other words, costs were not awardedin favour of the successful Cross Appellant. Put differently once again, costs were not awarded against the unsuccessful CrossRespondents upon the success of the Cross Appellant's counterclaim. The question is whether this was a judicial and judiciousexercise of discretion. At the risk of prolixity, there was a claim and a counterclaim before the lower Court. The claim andcounterclaim succeeded in part; so it was not a win-win for either party at the lower Court. The exercise of discretion is a libertyor privilege to decide and act in accordance with what is fair and equitable under the circumstances of the particular case,guided by the spirit and principles of law: THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING &SHIPPING LTD (2003) 9 MJSC 156 at 168. Like all judicial discretions, the discretion is exercised judicially and judiciously. Judicialin the sense that it must be for a reason connected with the case and judicious in the sense that it must be based on soundjudgment marked by discretion, wisdom and good sense. SeeERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs.KAREEM (2002) 34 WRN 1 at 8. In the diacritical circumstances of the manner in which the decision of the lower Court turned, inwhich neither party could be said to have wholly carried the day, it seems to me that the award of costs to the CrossRespondents against the Cross Appellant was not the exercise of discretion for a reason connected with the case. It was notbased on sound judgment, wisdom and good sense to have awarded costs in favour of only one of the successful parties againstan equally successful party. In a coda, it was not fair and equitable and it was a wrong exercise of judicial discretion. Anappellate Court will definitely interfere in the circumstances. The Cross Respondents had claimed the legal cost of the action asa specific relief. The lower Court considered the evidence adduced in that regard and was unable to grant the same. Contrary tothe contention of the Cross Respondents, the lower Court was right not to have relied on the evidence adduced in theunsuccessful proof of legal costs to arrive at the amount to award as costs of the action. The lower Court gave no reasons forawarding costs against the equally successful Cross Appellant; such cannot be allowed to stand. It is not a question of whetherthe amount awarded as costs is excessively high or not; rather it is that in the peculiar circumstances, the proper exercise ofdiscretion was that costs should not have been awarded. The parties having both succeeded ought to bear their respective costsof the litigation. Consequently, this Issue Number Two is resolved against the Cross Respondents. The costs awarded in favour ofthe Cross Respondents is hereby set aside."Per OGAKWU, J.C.A. (Pp. 37-44, Paras. E-E) - read in context

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5. PRACTICE AND PROCEDURE - ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: Attitude of Courtsto academic/hypothetical issues or questions"...The point I seem to be labouring to make is that the said issues which arise from the Rulingof 13th December, 2016 have become academic as no benefit can be conferred on the parties by any favourable resolution ofthe said issues. On the one hand the order for stay automatically abates upon the determination of this appeal and on the otherhand the judgment sum subject of the garnishee proceedings has been determined not to be the adjudged sum that the CrossAppellant can recover in the main appeal. The Courts exist for the determination of live issues not issues that are merely ofacademic interest and of no practical utilitarian value. In PLATEAU STATE vs. A-G FEDERATION (2006) 3 NWLR (PT. 967) 346 at419, Tobi, JSC stated: "A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian valueto the plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of humannature and humanity." See also EZEANYA vs. OKEKE (1995) 4 NWLR (PT. 388) 142 at 165 and GLOBAL TRANSPORT OCEANICOS.A vs. FREE ENTERPRISES (NIG) (2001) LPELR (1324) 1 at 19-20. I would therefore discountenance with the said issues whichare now academic."Per OGAKWU, J.C.A. (Pp. 9-10, Paras. F-G) - read in context

6. TORT - LIBEL: What a defendant relying on a plea of justification in an action for libel must prove to succeed"It is hornbook law that where the defence of justification is set up as in this case, the probativevalue on the claimant is lessened as the plea of justification implies an admission that the publication was made by thedefendant, but that the publication is true. The defendant then has the onus of proving the veracity of the publication. Where itis able to do so then it cannot be liable in damages since damages are awarded where the publication is false: OJUKWU vs.NNORUKA (1999) LPELR (5683) 1 at 24- 25. Therefore, the Cross Appellant which raised the defence of justification had theburden of proving that the publication was true as opposed to the Cross Respondents proving that it was false. See IRIVING vs.PENGUIN BOOKS (2000) WLR 362 at 478, AKOMOLAFE vs. GUARDIAN PRESS LTD (2004) 1 NWLR (PT. 853) 1 and INLAND BANKNIG PLC vs. FISHING & SHRIMPING CO. LTD (2010) LPELR (2158) 1 at 24-25. In deciding whether a publication isdefamatory, the entire publication must be taken as a whole. The Cross Appellant has rightly submitted that the truth of everyword in the libel need not be proved and that it suffices if the main charge or gist of the libel is true. In the words of Iguh, JSC inTHE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, (AMORC) NIGERIA vs. AWONIYI (1994) LPELR (3198) 1 at 60-61: "Forthe defence of justification to succeed, it is not necessary to prove the truth of each and every word comprised in the allegedlibel. It suffices if the defendant establishes that the main substance of the libellous statement is true and justified. Thedefendants need not justify statements or comments which do not add to the sting of the charge or introduce any matter byitself actionable." Equally, in ACB LTD vs. APUGO (2001) LPELR (9) 1 at 18-19, Ejiwunmi, JSC stated: "Although it is not necessaryto prove the truth of every word in the libel, the defendant, is however obliged to prove that the main charge or gist of the libelis true. He need not justify the statements or comments which do not add to the sting of the charge." See also AMUZIE vs.ASONYE (supra)."Per OGAKWU, J.C.A. (Pp. 26-28, Paras. D-B) - read in context

7. TORT - LIBEL: Essential ingredients or elements a plaintiff must prove to succeed in an action for libel"The law is trite as to the essential ingredients or elements which must be established for anaction in libel to succeed. They are: 1. That there is a publication in writing or in a permanent form. 2. That the publication isfalse. 3. That the publication was made to a person other than the claimant and defendant. 4. That the publication referred tothe claimant and is defamatory of the claimant. 5. That the publication was made by the defendant. See SKETCH vs.AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678 at 74, ANATE vs. SANUSI (2001) 27 WRN 26 at 41, ILOABACHIE vs. ILOABACHIE(supra) and AYENI vs. ADESINA (supra)."Per OGAKWU, J.C.A. (P. 22, Paras. C-F) - read in context

8. TORT - DEFAMATION: Basis of the tort of defamation"The gravamen of the tort of defamation is the publication of the defamatory matter to a thirdparty. It is rudimentary law that a person's reputation is not based on the good opinion he has of himself but the estimation inwhich others hold him. See NSIRIM vs. NSIRIM (2004) 26 WRN 13 at 32 and UNITY BANK vs. ABIOLA (2009) ALL FWLR (PT. 452)1082 at 1105."Per OGAKWU, J.C.A. (P. 32, Paras. C-E) - read in context

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UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering

the Leading Judgment): This appeal was spawned by the

disagreement on the fees payable to the Cross Appellant in

respect of services it rendered in its consultancy contract

with the Cross Respondents. As the disagreement raged,

the Cross Appellant wrote a letter which the Cross

Respondents considered libellous and consequently

instituted an action before the High Court of Lagos State in

SUIT NO. LD/2245/2010: CHRIS BAYWOOD IBE &

ORS vs. BONUM NIGERIA LIMITED. The reliefs claimed

by the Cross Respondents are as follows:

“i) ₦100,000,000.00 (One Hundred Million Naira)

aggravated or exemplary damages to the 1st and 2nd

Claimants jointly and severally for libel contained in the

Defendant’s letter of 1st November, 2010 complained of.

ii) An injunction to restrain the Defendant by itself, or by its

servants or agents or otherwise howsoever from the further

publication of the said words complained of or any of them

or of any similar words in relation to the Claimants hereof.

iii) An order compelling the Defendant to wholly retract or

withdraw the content of the said letter of

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1st November, 2010 complained of from each and every

office and person the same was written and published.

iv) ₦100,000,000.00 (One Hundred Million Naira)

aggravated or exemplary damages to the 3rd Claimant for

libel contained in the Defendant’s letter of 1st November,

2010.

v) Interest on the judgment sum (if any) at the rate of 10%

per annum until the same is fully paid by the Defendant.

vi) Legal cost in the sum of ₦22,800,000.00 (Twenty-Two

Million, Eight Hundred Thousand Naira) only.”

(See page 1424 of Volume 3 of the Records)

The Cross Appellant set up a counterclaim wherein it

claimed the following reliefs:

“a) ₦12, 368,028.03 (Twelve Million, Three Hundred and

Sixty Eight Thousand, Twenty Eight Naira, Three Kobo) and

the sum of $279,691.83 (Two Hundred and Seventy Nine

Thousand, Six Hundred and Ninety One Dollars, Eighty

Three Cents) being sums due to the Counter Claimant

under the revised agreement.

b) Interest on the said sum at the rate of 16% per annum

from the day Payment was due since July 2010 until final

liquidation.

c) The sum of ₦7,016,000.00 (Seven Million, Sixteen

Thousand Naira)

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only being the amount of special damages incuured. [sic]

d) The sum of ₦232,000,000.00 (Two Hundred and Thirty

Two Million Naira) as general damages and loss of income.

Or in the alternative

i) The sum of ₦11, 688,000.00 (Eleven Million, Six Hundred

and Eighty-eight Thousand Naira) and $97, 453.00 (Ninety

Seven Thousand, Four Hundred and Fifty-three Dollars)

being value of 1% total variation approved by Chevron

Nigeria Limited.

a. Interest on the said sum at the rate of 16% per annum

from the day payment was due to the counter claimant

since July 2010 until final liquidation.

b. The sum of ₦7,016,000.00 (Seven Million, Sixteen

Thousand Naira) only being the amount of special damages

incurred.

c. The sum of ₦232,000,000.00 (Two Hundred and Thirty

Two Million Naira) as general damages and loss of

income.”

(See pages 994-995 of Volume 2 of the Records)

At the end of a full dressed hearing at which testimonial

and documentary evidence was adduced, the lower Court

delivered its judgment on 5th October, 2016 and relative

successes were recorded by the parties in their respective

claim and counterclaim.

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The parties were both dissatisfied with aspects of the

judgment and appealed against the same. This judgment

relates to the cross appeal which was filed on 8th

December, 2017, pursuant to the leave of Court granted on

21st November, 2017. The main appeal with the Cross

Respondents a s Appe l l an t s i s APPEAL NO.

CA/L/1445/2016: CHRIS BAYWOOD IBE & ANOR vs.

BONUM NIGERIA LIMITED.

After the judgment of the lower Court, the Cross Appellant

sought to enforce the aspect of the judgment favourable to

it by garnishee proceedings. A garnishee order nisi was

made and upon the same being served on the Cross

Respondents, they successfully applied for the same to be

set aside and the lower Court then made a conditional

order for stay of execution of the judgment. The Ruling of

the lower Court in this regard was delivered on 13th

December, 2016. The Cross Appellant was equally

dissatisfied with the said Ruling and incorporated its

complaints against the said Ruling in its Notice of Cross

Appeal. So the cross appeal is in respect of both the

judgment of 5th October 2016 and the Ruling of 13th

December 2016.

The Court directed that the Records of Appeal in the main

appeal number

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CA/L/1445/2016 be used for the hearing of this cross

appeal and the parties filed and exchanged briefs of

argument. The Cross Appellant’s Brief was filed on 24th

January 2018, while the Cross Respondents’ Brief was filed

on 19th February 2018. The Cross Appellant filed a Cross

Appellant’s Reply Brief on 14th March, 2018 but the same

was deemed as properly filed on 14th November, 2018. The

learned counsel for the parties adopted and relied on their

respective briefs at the hearing of the appeal.

The Cross Appellant distilled eight issues for determination

as follows:

“1. Whether the lower Court was right when it held that the

Cross Respondent has successfully established/proved their

claim for libel against the Cross Appellant? Relating to

Ground 1 of the Notice of Appeal.

2. Whether the lower Court exercised its discretion

judiciously and judicially when it awarded the sum of

N500,000.00 (Five Hundred Thousand Naira) as costs of

litigation against the Cross Appellant? Relating to

Ground 2 of the Notice of Appeal.

3. Whether based on the preponderance of evidence, the

lower Court was right when it held that the Cross

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Appellant was only entitled to 1% of the gross amount

approved per change as against 2.87% of the gross amount

approved per change? Relating to Ground 3 & 4 of the

Notice of Appeal.

4. Whether the lower Court was right when it failed to

expunge letter dated 25th October, 2010 from its record of

proceedings? Relating to Ground 5 of the Notice of

Appeal.


award any consultancy fees for two change orders

developed by the Cross Appellant and approved by Chevron

Nigeria Limited? Relating to Ground 6 of the Notice of

Appeal.


make a pronouncement on whether there was extension of

scope and extension of schedule thereby justifying the

increase of the Cross-Appellant’s fees from 1% of the gross

amount approved per change to 2.87% of the gross amount

approved per change? Relating to Ground 7 of the

Notice of Appeal.

7. Whether the lower Court was right when it granted in

favour of the Cross Respondent a conditional stay of

execution of its judgment? Relating to Ground 8 of the

Notice of Appeal.

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8. Whether the lower Court was not in grave error when it

applied the decision of this Honourable Court in the case of

Nigerian Breweries Plc v. Dumuje & Anor (2016) 8

NWLR, 536, 616-617, paras. D-A to vacate the garnishee

order nisi granted in favour of the Cross Appellant?

Relating to Ground 9 of the Notice of Appeal.

The Cross Respondents on their part formulated six issues

for determination, namely:

“i. Whether the lower Court was right when it held that the

cross-respondents have successfully established their claim

for libel against the cross-appellant. (Ground 1 of the

Notice of Cross Appeal)

ii. Whether the lower Court was right to have awarded the

sum of N500,000.00 (Five Hundred Thousand Naira) as

cost in favour of the cross-respondents. (Ground 2 of the

Notice of Cross Appeal).

iii. Whether the lower Court was right not to have

expunged Exhibit CW1-11 (letter dated 25th day of October

2010) from the record of the court. (Ground 5 of the

Notice of Cross Appeal)

iv. Whether the lower Court was right when it granted in

favour of the cross-respondents a conditional stay of

execution. (Ground 8 of the Notice of Cross Appeal)

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v. Whether the lower Court was right when it set aside the

garnishee order nisi granted in favour of the cross-

appellant. (Ground 9 of the Notice of Cross Appeal)

vi. Whether the lower Court was right when it held that

there was no evidence of agreement of parties as to

extension and revision of scope of work and that no

consensus was reached between the parties as regards the

review of consultancy fees from 1% to 2.87%. (Grounds 3,

4, 6 and 7 of the Notice of Cross Appeal)

Notwithstanding the disparity in the number of issues

crafted by the parties, the said issues are the same in their

true essence and purport. The issue numbers one and two

as distilled by the parties are the same. The Cross

Appellant’s issue numbers three, five and six are the same

as the Cross Respondents’ issue number six. The Cross

Appellant’s issue number four is the same as the Cross

Respondents’ issue number three. The Cross Appellant’s

issue number seven is the same as the Cross Respondents’

issue number four while the Cross Appellant’s issue

number eight is the same as the Cross Respondent’s issue

number five.

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Let me state that the Cross Appellant’s issue number seven

and eight (Cross Respondents’ issue numbers four and five)

are in respect of the Ruling of the lower Court of 13th

December, 2106 granting a conditional order for stay of

execution of its judgment. The contingency on which the

said conditional order for stay of execution is predicated is

the determination of this appeal. This judgment determines

this appeal and the said order by operation of law will

abate and become spent. Equally, the garnishee order nisi

which was vacated in the Ruling of the lower Court of 13th

December, 2016 was based on the judgment of the lower

Court which is being reviewed in this appeal. Therefore any

garnishee proceedings will now be informed by how this

judgment affects the said decision of the lower Court.

Already, I have held in the main appeal, CA/L/1445/2016,

that the judgment sum is inchoate and that the conditional

order for stay of execution could not have been made in the

terms made by the lower Court. The concomitance is that

the garnishee proceedings cannot be pursued for the said

inchoate judgment sum.

The point I seem to be labouring to make is that the said

issues which

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arise from the Ruling of 13th December, 2016 have become

academic as no benefit can be conferred on the parties by

any favourable resolution of the said issues. On the one

hand the order for stay automatically abates upon the

determination of this appeal and on the other hand the

judgment sum subject of the garnishee proceedings has

been determined not to be the adjudged sum that the Cross

Appellant can recover in the main appeal.

The Courts exist for the determination of live issues not

issues that are merely of academic interest and of no

practical utilitarian value. In PLATEAU STATE vs. A-G

FEDERATION (2006) 3 NWLR (PT. 967) 346 at 419,

Tobi, JSC stated:

“A suit is academic where it is thereby theoretical, makes

empty sound and of no practical utilitarian value to the

plaintiffs even if judgment is given in his favour. A suit is

academic if it is not related to the practical situation of

human nature and humanity.”

See also EZEANYA vs. OKEKE (1995) 4 NWLR (PT.

388) 142 at 165 and GLOBAL TRANSPORT OCEANICO

S.A vs. FREE ENTERPRISES (NIG) (2001) LPELR

(1324) 1 at 19-20. I would therefore discountenance with

the said issues which are now academic.

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In resolving the other issues, I will be guided by the

remaining four issues as formulated by the Cross

Respondents, which issues are concise, succinct and apt.

For purposes of clarity, the issues on which I would

consider the submissions of learned counsel and resolve

this appeal are as follows:

“1. Whether the lower Court was right when it held that the

Cross Respondent has successfully established its claim for

libel against the Cross Appellant.

2. Whether the lower Court was right to have awarded the

sum of N500, 000.00 (Five Hundred Thousand Naira) as

cost in favour of the Cross Respondents.

3. Whether the lower Court was right not to have expunged

Exhibit CW1-11 (letter dated 25th day of October 2010)

from the record of the Court.

4. Whether the lower Court was right when it held that

there was no evidence of agreement of parties as to

extension and revision of scope of work and that no

consensus was reached between the parties as regards the

review of consultancy fees from 1% to 2.87%.”

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ISSUE NUMBER ONE

Whether the lower Court was right when it held that the

Cross Respondent has successfully established its claim for

libel against the Cross Appellant.

SUBMISSIONS OF THE CROSS APPELLANT’S

COUNSEL

The Cross Appellant referred to the necessary facts to be

proved in order to succeed in an action for defamation. The

cases of OLOGE vs. NEW AFRICA HOLDINGS LTD

(2013) 17 NWLR (PT. 1384) 449 at 469 and

CONCORD PRESS (NIG) LTD vs. OLUTOLA (1999) 9

NWLR (PT. 620) 578 were referred to. It was stated that

the Cross Appellant pleaded and adduced evidence that it

did not send the alleged libellous letter to any of the 17

companies listed in the letter as having been copied the

letter and the Cross Appellant therefore denied publication

of the said letter to any third party, including Skye Bank,

Matori Branch. It was posited that the burden of proof was

therefore on Skye Bank to establish who delivered the

letter to it. Sections 131 and 133 of the Evidence Act were

referred to on burden of proof and it was asserted that the

Cross Respondents failed to lead evidence to establish that

the said letter was sent by the Cross Appellant. The cases

of NWAVU vs. OKOYE (2008) 18 NWLR (PT. 1118) 29

at 61, OLUSESI vs. OYELUSI (1986) 3 NWLR (PT 31)

634 and the statement of Ese Malami in Law of Tort 1st

Edition, page 430 were relied upon.

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It was further submitted that in order to constitute

publication, the defamatory matter must be published to a

third party and not merely to the plaintiff vide

EJANBULOR vs. OSHA II (1990) 5 NWLR (PT. 148) 1

at 20. It was posited that there was an issue as to who sent

the letter and that the lower Court was in error by holding

that the Cross Appellant published the said letter to Skye

Bank when, the Cross Respondents did not discharge the

evidential burden of proving publication. The case of

GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10

NWLR (PT. 1256) 574 at 588 was cited in support.

The Cross Appellant contends that the 1st Cross

Respondent carries on business in a business name which

does not have corporate personality and cannot sue; in

which case the reference to Partners, Management and

Directors of the business name (without mentioning a

particular name) in the alleged libellous letter goes to no

issue as the reputation of persons who are not specifically

named could not have been damaged. It was opined that it

was only the 1st Cross Respondent who sued as doing

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business in the business name and that the testimony of

any other person, on account of the business name not

being a legal person, will be hearsay and that in the

absence of admissible oral evidence, the alleged libellous

letter, Exhibit CW1-1 cannot serve any useful purpose. The

cases of TUNJI vs. BAMIDELE (2012) 12 NWLR (PT

1315) 477 at 492, BORNO HOLDING COMPANY LTD

vs. BOGOCO (1971) 1 ALL NLR 325 and JIMOH vs.

AKANDE (2009) 5 NWLR (PT. 1135) 549 at 585 were

called in aid.

It is the further contention of the Cross Appellant that the

defence of justification availed it, as Exhibit CW3h was a

newspaper publication showing that the Cross Respondents

had non-performing loans. Truth it was stated, was a

complete defence to defamation and small inaccuracies will

not defeat the plea of justification vide M’PHERSON vs.

DANIELS (1829) 109 ER 448 and AMORC vs.

AWONIYI (1994) 7 NWLR (PT. 355) 154. It was

asserted that to constitute defamation, the publication must

be false and without lawful justification and that every

word used is not expected to be proved as correct by the

defendant as it sufficed if the main charge or gist of the

libel is true.

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The cases of SKETCH vs. AJAGBEMOKEFERI (1989) 1

NWLR (PT. 100) 678 and AMUZIE vs. ASONYE (2011)

6 NWLR (PT. 1242) 19 at 45 were referred to. It was

maintained that the newspaper publication on the Cross

Respondents’ non-performing loans and the evidence of the

series of litigations they were involved in showed that the

Cross Appellant was justified in writing the alleged

defamatory letter.

The Cross Appellant posits that the alleged libellous letter

does not refer to the 2nd Cross Respondent and that the

lower Court was not correct in holding that the letter

amounts to libel against the 2nd Cross Respondent; which

holding influenced the outrageous sum of N5million

awarded as damages in favour of the Cross Respondents.

The Court was urged to interfere with the damages

awarded which was too high and was made without taking

into account relevant matters relating to the issue of no

publication against the 2nd Cross Respondent and equally

based on a wrong principle of law as the lower Court did

not consider the issue of hearsay and absence of

publication. The case of AFRICAN NEWSPAPER (NIG)

PLC vs. USENI (2015) 3 NWLR (PT. 1447) 464 at 497

was relied upon.

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SUBMISSIONS OF THE CROSS RESPONDENTS’

COUNSEL

The Cross Respondents submit that the lower Court rightly

held that the claim for libel was established by the

evidence. The facts to prove in an action for libel were set

out and the cases of ILOABACHIE vs. ILOABACHIE

(2005) 13 NWLR (PT. 943) 695 at 736 and AYENI vs.

ADESINA (2007) 7 NWLR (PT. 1033) 233 at 259 were

referred to. It was maintained that the evidence established

that the libellous letter Exhibit CW1-1 was received by Skye

Bank, Matori Branch and that it was therefore not open to

the Cross Appellant to merely say that it did not send

copies of the letter to those to whom it was copied without

adducing cogent and convincing evidence in that regard. It

was argued that not only is there a presumption that the

letter was sent to the person to which it was copied, but

that the Cross Respondents further called CW4 from Skye

Bank who testified that they received the letter.

It is the further argument of the Cross Respondents that

the contention that the specific names of the partners,

directors and management referred to in Exhibit CW1 – 1

have to be mentioned in order for the letter to

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be said to damage their reputation, was a new issue for

which leave was necessary to raise and that since no leave

was obtained, the same should be discountenanced vide

KADZI INT’L LTD vs. KANO TANNERY CO. LTD

(2004) 4 NWLR (PT. 864) 545 at 565-566. It was

further submitted that the reference to partners, directors

and management was a reference to the Cross Respondents

and that it damaged their reputation, even if the

partnership was not a juristic personality.

It was asserted that the testimony of CW1, CW2 and CW3

was not hearsay as they could give evidence on behalf of a

defamed person, more so as the evidence of a third party

carries more weight in libel cases and indeed the testimony

of CW4 sufficed to ground publication. The plea of

justification raised by the Cross Appellant was stated not to

have been established by the evidence as correctly held by

the lower court. The Cross Respondents maintained that

Exhibit CW1-1 was defamatory of the 2nd Cross

Respondent and that there was no appeal against the sum

of N5million awarded as damages against the Cross

Appellant.

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CROSS-APPELLANTS’ REPLY ON LAW

It was opined that the contention that the alleged

publication could not have damaged the reputation of

partners, directors and management whose names were

not specifically mentioned was not a new issue, but a new

line of argument on an issue that was before the Court, id

est, whether the lower Court was right in holding that the

claim for libel was proved. The case of KWAJAFFA vs.

B.O.N. LTD (2004) 13 NWLR (PT. 889) 1 at 168 was

relied upon. The Cross Appellant maintained that there is

justification for the publication in Exhibit CW1 – 1 since the

main charge or gist of Exhibit CW1 – 1 was true vide

AMUZIE vs. ASONYE (2011) 6 NWLR (PT. 1242) 19.

RESOLUTION OF ISSUE NUMBER ONE

The Cross Appellants’ letter of 1st November 2010 (Exhibit

CW1 - 1) which the lower Court found and held to be

defamatory of the Cross Respondents reads as follows:

“1st Nov. 2010

BAYWOOD DEXTRON VENTURES (BDV)

72, OLORUNLOGBON STEET, ANTHONY VILLAGE,

LAGOS.

ATTENTION: - REGINA OBANYA/CHRIS UGWU

RE: AGREED CONSULTANCY FEES TO BONUM ON

BDV TRU PROJECT.

We received your Letter dated 25th October, 2010. The

Letter has clearly confirmed indubitably, the

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intent of BDV, its Partners, Directors and Management to

defraud BONUM. We had suspected fraud from the actions

and inactions of BDV and its management since we

submitted our Invoice in July, 2010.

Your Letter is an excellent evidence of Corruption, Crime

and Fraudulent actions of BDV, its Partners, Directors and

Management. Additional evidence collated by our

Consultants indicate that BDV is a ‘419’ Company. We can

infer that BDV, its partners, Directors and Management,

consistently obtain goods, services and loans fraudulently

by false pretence.

We are well aware of the following cases and others of

serial Fraud, with impunity by BDV, its Partners, Directors

and Management.

1. The names of Customers with the biggest ‘non-

performing’ debts were published on the front page of the

October 15, 2009 edition of ‘Thisday’ Newspaper, [Please

see attached photocopy]. Baywood Continental Limited was

reported to be owing Spring Bank, N2.743 Billion.

2. NNPC’s NPDC awarded the Oredo Flow Station

Relocation Contract to Baywood Continental Limited in

Dec. 2002. Baywood failed to conduct the Project as

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required by the Contract after collecting mobilization. This

led to the termination of the Contract in March 2006 by

NPDC. Baywood made no refunds.

3. Currently, Baseline Energy Limited [A Supplier to BDV

on the TRU Project] has sued BDV in the High Court of

Lagos State; Ikeja Judicial Division in Suit No. ID/97/2010.

4. Similarly, on the 10th day of March, 2010, Jolotex

Nigeria Limited secured a Judgment against Baywood

Dextron Ventures in Suit No. EHC/256/2009 in Warri,

before they got paid for their services.

5. In our case, BDV had prepared ab-initio corruptly and

senselessly to defraud BONUM by making obviously false

and unreasonable claims after using our excellent

professional project management services most

successfully to recover $17 Million [USD] on the TRU

Project. In addition to your false claims, the Date of our

Appointment indicated in your Letter is also false.

BDV is in criminal breach of our Contract ‘Payment Plan’.

Our payment was due in July 2010 and your intent to

defraud is obvious form your Letter.

The laws of Nigeria forbid criminal conduct. We had cause

during our Consultancy Services to you, to

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advise you in writing to conduct your business with

integrity. Apparently, you have not only ignored our

excellent professional advice but have gone ahead with

impunity to document your attempt to defraud us in your

referenced Letter. We will expose this attempt and you

could be compelled by law to conduct your business with

integrity or cease to operate.

Per our Contract, our payment was due since July, 2010.

You must pay BONUM in full, immediately, for our services

duly rendered per our accurate Invoice which you

previously reviewed and accepted both verbally and

electronically. Your desperation to defraud criminally has

blinded you and you forgot that, BDV has already made a

part payment of N5 Million to us on the basis of the same

Invoice you previously accepted and now wish to reject

fraudulently.

Signed

Cyprian Yande,

General Manager.

CC:

1. Commissioner of Police, Lagos State

2. Commissioner of Police, Special Fraud Unit

3. Inspector General of Police

4. Project Manager, TRU, CNL

5. Manager, Terminal Projects, CNL

6. Terminal Superintendent, CNL

7. MD, Jolotex Nigeria Ltd.

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8. MD, Baseline Nigeria Ltd.

9. Program Manager, Mobil Producing Nigeria

10. General Manager, NPO, Mobil Producing Nigeria

11. Project Director, OUR Project, Zachem

12. Manager, Facilities Engineering, NAPIMS

13. GGM, NAPIMS

14. MD, NPDC

15. Branch Manager, Skye Bank, Matori, Lagos

16. MD, Skye Bank PLC

17. GED E&P, NNPC."

The law is trite as to the essential ingredients or elements

which must be established for an action in libel to succeed.

They are:

1. That there is a publication in writing or in a permanent

form.

2. That the publication is false.

3. That the publication was made to a person other than the

claimant and defendant.

4. That the publication referred to the claimant and is

defamatory of the claimant.

5. That the publication was made by the defendant.

See SKETCH vs. AJAGBEMOKEFERI (1989) 1 NWLR

(PT. 100) 678 at 74, ANATE vs. SANUSI (2001) 27

WRN 26 at 41, ILOABACHIE vs. ILOABACHIE (supra)

and AYENI vs. ADESINA (supra). The lower Court held

that the above elements or ingredients were established as

a result of which it mulcted the Cross Appellant in

damages.

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The contestation is whether the lower Court was not

correct in this regard.

Now, it is not confuted that Exhibit CW1 – 1 is in a

permanent from, in writing and that it was made by the

Cross Appellant. The major thrust of the Cross Appellant’s

argument is that the said letter was not published to any

third party, that it does not refer to the Cross Respondents

on record and that it is not defamatory of them and more

importantly that the publication is not false. To boot, the

Cross Appellant raised the defence of justification and

adduced evidence in that regard.

In paragraphs 39 and 42 of the Amended Statement of

Defence the Cross Appellant averred as follows:

“39. The Defendant avers that the said word complained of,

or the words set out in paragraph 4 of the Claimants’

statement of claim were true in substance and in fact. The

Defendant shall rely on the defense of justification at the

trial of this suit.

PARTICULARS

a. It was reported in Thisday Newspaper of 15th October,

2009 that Claimants took out as a loan the sum of N2.743

Billion Naira from Spring Bank of Nigeria Plc, the

Claimants failed, neglected and refused to pay

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back any part or the whole sum causing the Central Bank of

Nigeria to publish in Thisday Newspaper on October, 15th

2009 the names of Spring Bank Plc customers with the

biggest non-performing debts of which the 3rd Claimant’s

name appeared. Certified True Copy of the said This

day Newspaper is hereby pleaded and shall be relied

upon at the trial of this suit.

b. The Claimants’ fraudulent activity manifested in NNPC’s

NPDC Oredo Flow Station Relocation Contract awarded to

the Claimants in December, 2002. The Claimants failed to

conduct the project as required by the contract after being

heavily mobilized which led to the termination of the

contract in March 2006. In particular, the said letter from

NNPC dated 1st March, 2006 clearly shows that the

contract was terminated because of the 3rd Defendant’s

failure to complete same within time which led to the

termination of the said contract for non-performance. The

Defendant shall rely on the said letter by Nigerian

Petroleum Development Company Limited dated the

1st of March, 2006 at the trial of this suit.

c. The partnership operated by the 1st and 2nd Claimant

neglected, refused

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and failed to carry on its obligation under the contract it

had with Baseline Energy Limited by refusing to pay money

due to baseline Energy Limited after the said Baseline had

supplied goods to it. This suit was later settled out of Court.

The Defendant shall rely on the Statement of Claim of

Baseline Energy Services Limited in Suit No.

ID/97/2010 and terms of settlement executed between

Baseline Energy Services Limited and the 1st & 2nd

Claimants and entered in Court as judgment in Suit

No. ID/97/2010.

d. The partnership operated by the 1st & 2nd Claimant also

breached its obligation under a contract it executed with

Jolotex Nigeria Limited, the said Jolotex secured a

judgment against the 1st & 2nd Claimants’ partnership in

Suit No. EHC/256/2009 in Warri, before they got paid for

their services.”

“42. In reply to paragraph 31 of the amended statement of

claim, the Defendant avers that statement in the alleged

libelous letter as to the debt owed to Springbank Plc is true

in fact and substance and it is irrelevant if the Newspaper

statement is inaccurate as to 100% correct details. The

Defendant further avers that the

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two rejoinders by the 3rd Claimant in the Thisday

Newspaper and Daily Sun Newspaper cannot erase the fact

that there was a publication to the effect that the 3rd

Claimant was in unserviced debts and that the publication

was true state of events as they were. The Defendant

further avers that the Claimants had not asked any Thisday

Newspaper for a retraction of the said publication and no

action had been instituted against Thisday for libel,

confirming the veracity of the publication. The Defendant

only referred to the publication and did not assert its

veracity.”

(See pages 607-608 and 609 of Volume 2 of the Records)

It is hornbook law that where the defence of justification is

set up as in this case, the probative value on the claimant is

lessened as the plea of justification implies an admission

that the publication was made by the defendant, but that

the publication is true. The defendant then has the onus of

proving the veracity of the publication. Where it is able to

do so then it cannot be liable in damages since damages

are awarded where the publication is false: OJUKWU vs.

NNORUKA (1999) LPELR (5683) 1 at 24- 25.

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Therefore, the Cross Appellant which raised the defence of

justification had the burden of proving that the publication

was true as opposed to the Cross Respondents proving that

it was false. See IRIVING vs. PENGUIN BOOKS (2000)

WLR 362 at 478, AKOMOLAFE vs. GUARDIAN PRESS

LTD (2004) 1 NWLR (PT. 853) 1 and INLAND BANK

NIG PLC vs. FISHING & SHRIMPING CO. LTD (2010)

LPELR (2158) 1 at 24-25.

In deciding whether a publication is defamatory, the entire

publication must be taken as a whole. The Cross Appellant

has rightly submitted that the truth of every word in the

libel need not be proved and that it suffices if the main

charge or gist of the libel is true. In the words of Iguh, JSC

i n THE REGISTERED TRUSTEES OF THE

ROSICRUCIAN ORDER, (AMORC) NIGERIA vs.

AWONIYI (1994) LPELR (3198) 1 at 60-61:

“For the defence of justification to succeed, it is not

necessary to prove the truth of each and every word

comprised in the alleged libel. It suffices if the defendant

establishes that the main substance of the libellous

statement is true and justified. The defendants need not

justify statements or comments which do not add to the

sting of the charge or introduce any matter by itself

actionable.”

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Equally, in ACB LTD vs. APUGO (2001) LPELR (9) 1 at

18-19, Ejiwunmi, JSC stated:

“Although it is not necessary to prove the truth of every

word in the libel, the defendant, is however obliged to

prove that the main charge or gist of the libel is true. He

need not justify the statements or comments which do not

add to the sting of the charge.”

See also AMUZIE vs. ASONYE (supra).

I have already reproduced verbatim ac literatim the text of

the alleged libellous publication, Exhibit CW1 – 1. It is

translucent that the main charge or gist of the libel

complained about is that the Cross Respondents are

fraudulent, corrupt, fraudulently obtain by false pretences,

criminals, ‘419’ Company and serial fraudsters. The main

gist of the libel is not in the publication of the 2nd Cross

Respondent’s name as a debtor or that it was sued or that

judgment was obtained against it or that the contract

awarded to it was terminated; it is to prove that in those

instances the Cross Respondents were fraudulent and

defrauded the persons they dealt with. The evidence

adduced by the Cross Appellant did

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not establish the defence of justification as it did not prove

the main sting of the Cross Respondents being fraudulent

and into ‘419’, which is the main slur and sting in the

publication. The lower Court was therefore correct when it

held that the defence of justification did not avail the Cross

Appellant in the following words:

“A cursory look at the ‘This Day’ Newspaper of October 15,

2009 relied on by the Defendant of an outstanding ‘non-

performing’ debt of the 3rd Claimant to Spring Bank in the

sum of N2.743 Billion (which was refuted by the Claimants

vide the This Day Newspaper publication of 20th October

2009) does not in any form describe the Claimants as

‘fraudsters’ who ‘consistently obtain goods, services and

loans fraudulently by false pretence’ as stated in Exhibit

CW1 (1) the Defendant’s letter of 1st November 2010.

The Defendant has further listed an Oredo-Flow station

contract to Baywood Continental Limited in 2002 which

they failed to perform despite payment of mobilization. The

Defendant has despite Exhibit CW2 (a) proffered no

evidence of ‘FRAUD’

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before the Court in proof of same. The law suits also listed

do not indicate more than commercial disputes and

therefore cannot impute ‘fraudulent’ acts/actions by the

Claimants. In the absence of any justification for the said

letter and from the contents thereof, it is evident that same

was indeed malicious and written with the intent to expose

the Claimants to ridicule or contempt, particularly as same

was copied to persons who are not privy to their contract

and had no business with the parties as regarding the

contract in issue.

The Honourable Court therefore believes that from the

entirety of facts before it, the plea of justification cannot

avail the Defendant and therefore fails.”

(See pages 1614-1615 of Volume 3 of the Records).

I have given due consideration to the Cross Appellant’s

contention that Exhibit CW1 – 1 does not defame the 2nd

Cross Respondent and that the 1st Cross Respondent not

having been specifically mentioned by name therein is not

defamed. I am not enthralled by this contention. The 2nd

Cross Respondent is clearly mentioned by name in

paragraphs 1 and 2 of Exhibit CW1-1, in the

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instances of serial fraud that were allegedly committed. I

iterate that the said fraud was not proved by the evidence.

Furthermore, the 1st Cross Respondent is known as a

partner in BDV. Indeed, the 1st Cross Respondent

prosecuted the action as doing business in the name and

style of Baywood Dextron Ventures (BDV). It has not even

been remotely suggested that the 1st Cross Respondent is

not a Partner in BDV. It is with respect chop sense and

logic to contend that the publication does not refer to the

1st Cross Respondent, a known Partner in BDV, because it

did specifically mention his name other than by virtue of his

being a Partner. The sting of the defamation is clearly

referable to the Cross Respondents and the lower Court

rightly so held at pages 1613-1614 of Volume 3 of the

Records as follows:

“There is also no doubt that the statement refers to the

Claimants as even though the letter was addressed to

Baywood Dextron Ventures (BDV), the body of same

particularly paragraphs 1, 2 and 3 of same refers to its

Partner Directors and Management (same has not been

disputed)

The Honourable Court believes and finds that indeed

paragraphs 1, 2, 3 and 5

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are without doubt libelous in their natural and ordinary

meaning and refer to the 1st and 2nd Claimants (doing

business in the name and style of Baywood Dextron

Ventures) including their Partners, Directors and

Management.

The Court further believes that the words are equally

libelous of the 3rd Defendant.

There is no doubt that the words of the said paragraphs

portray the Claimants as dishonest, in the habit of cheating,

guilty of dishonest and dishonourable conduct and lacking

in integrity.”

The gravamen of the tort of defamation is the publication of

the defamatory matter to a third party. It is rudimentary

law that a person’s reputation is not based on the good

opinion he has of himself but the estimation in which others

hold him. See NSIRIM vs. NSIRIM (2004) 26 WRN 13

at 32 and UNITY BANK vs. ABIOLA (2009) ALL FWLR

(PT. 452) 1082 at 1105. It was therefore not for the 1st

Cross Respondent to personally testify as to what people

think of him as a result of the publication. The testimony of

the CW1 - CW4 was germane in the diacrit ical

circumstances of the matter.

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The Cross Appellant makes a kerfuffle of the fact that it did

not send Exhibit CW1-1 to any of the 17 persons indicated

to have been copied the letter. There is however the

unchallenged evidence of the CW4 that the letter was

received by Skye Bank, Matori Branch, which is listed as

number 15 in the list of persons to whom Exhibit CW1-1

was copied. The testimony of the CW4 cannot be wished

away by the mere assertion by the Cross Appellant that

they did not send the letter to those copied. By Section 145

(1) of the Evidence Act, whenever it is provided that the

Court may presume a fact, the Court may either regard

such fact as proved unless and until it is disproved or it

may call for proof of it. Section 167 of the Evidence Act

stipulates that the Court may presume the existence of any

fact which it deems likely to have happened, regard being

had to the common course of natural events, human

conduct and public and private business in their

relationship to the facts of a particular case. In the

circumstances of this matter, the Court may presume that a

letter written and said to have been copied to someone was

actually despatched to the said person by the writer of the

letter, more so when evidence is adduced by the person to

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whom the letter was copied that he actually received the

letter. The Cross Appellant did not adduce any evidence to

disprove or rebut this presumption.

In holding that publication was proved, the lower Court

held thus:

“Now to the simple issue of publication, it is not in dispute

that the said letter being complained of has on its face, that

fact of courtesy copies (cc) of same to 17 persons.

The defendant has stated without more that they did not

send out the copies as stated in the body of the letter.

There is the evidence of CW4 (Staff of Skye Bank Plc-

Matori Branch) before the Court who testified to the

receipt of Exhibit CW1 (1) when same was brought to his

attention by a Secretary, informing the Court that the letter

was received and time-stamped and that he brought same

to the Manager’s attention.

First, ‘In proving public in libel cases… the law is that libel

does not require publication to more than one person...’ –

AYENI V ADESINA (2007) 7 NWLR (PT 1033) PG 233

at 262-263.

It is the reduction of libelous material to writing and its

delivery to any person other than the person

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injuriously affected that is publication. See AGI V FIRST

CITY MONUMENT BANK PLC (2013) LPELR-

CA/C/19/2011.

The Court finds that the evidence of CW4 remained intact

and unshaken despite cross-examination and therefore

believes and finds that the Claimant had successfully

proved publication to Skye Bank (third party).”

(See pages 1615 of Volume 3 of the Records).

The concatenation of the foregoing is that after due and

insightful consideration of the evidence on the cold printed

Records, the ineluctable conclusion is that all the elements

or ingredients for proving libel were established by the

Cross Respondents and the lower Court arrived at the

correct decision when it so held. This issue is therefore

resolved against the Cross Appellant.

ISSUE NUMBER TWO

Whether the lower Court was right to have awarded the

sum of N500, 000.00 (Five Hundred Thousand Naira) as

costs in favour of the Cross Respondents.


COUNSEL

The Cross Appellant complains that the costs of

N500,000.00 awarded by the lower Court was too high and

was tantamount to punishing the Cross Appellant.

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It was posited that the costs awarded was not a proper

exercise of judicial discretion especially when the Cross

Appellant was also successful and no costs were awarded in

its favour. The Court was urged to review the costs

awarded by the lower Court as the lower Court failed to

observe the provisions of Order 49 of the High Court of

Lagos State (Civil Procedure) Rules in making the award.

The cases of M. H. (NIG) LTD vs. OKEFIENA (2011) 6

NWLR (PT. 1224) 514, CARNAUD METAL BOX (NIG)

PLC vs. AGWELE (2009) 17 NWLR (PT. 1171) 487 at

508- 509, AGIDIGBI vs. AGIDIGBI (1996) 6 NWLR

(PT. 454) 300 among other cases were relied upon.


COUNSEL

The Cross Respondents submit that their action for libel

having succeeded, the lower Court was right to have

awarded the cost of N500,000.00 in their favour, regard

being had to the provisions of Order 49 Rule 1 (1) (a) and

(b) of the High Court of Lagos State (Civil Procedure)

Rules. It was stated that a Court in awarding costs takes

into consideration the expenses reasonably incurred among

other factors. The case of DELTA STEEL (NIG) LTD vs.

AMERICAN COMPUTER TECHNOLOGY INC (1999) 4

NWLR (PT. 597) 53 at 68 was referred to.

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It was opined that the Cross Respondents pleaded and

adduced evidence on the fees they paid to their Solicitors

and that if the lower Court had taken into consideration the

cost of legal representation, which it found proved, it would

have awarded more than the N500,000.00 it awarded as

costs. The cases of M. H. NIG LTD vs. OKEFIENA

(supra) and LEBILE vs. REG. C & S (2003) 2 NWLR

(PT. 804) 399 at 422-423 were cited in support.

CROSS APPELLANT’S REPLY ON LAW

The Cross Appellant argued in the Reply Brief that there is

no relationship between the costs awarded by the lower

Court and the specific monetary claim of the Cross

Respondents, since following events in litigation a party

need not ask for costs and the costs awarded ought not to

be based on the amount of monetary claim in the action.

The case of ANYAEGBUNAM vs. OSAKA (1993) 5

NWLR (PT. 294) 449 was called in aid.

RESOLUTION OF ISSUE NUMBER TWO

The disceptation under this issue is with regard to the costs

awarded in favour of the Cross Respondents by the lower

Court. Let me restate that there was a claim and

counterclaim before the lower

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Court and the parties registered relative successes in their

respective claim and counterclaim. So the parties all

succeeded in their action. However, in exercising discretion

to award costs, the lower Court only awarded costs in

favour of the successful Cross Respondents; no costs were

awarded in favour of the equally successful Cross

Appellant. Now, in these circumstances, was the cost

awarded in favour of the Cross Respondent a proper

exercise of judicial discretion?

The position of the law is that costs follow event and a

successful party should not be deprived of his costs unless

for good reasons. See SAEBY vs. OLAOGUN (1999)

10-12 SC 45 at 59. In AKINBOBOLA vs. PLISSON

FISKO NIGERIA LTD (1991) 1 NWLR (PT. 167) 270,

Kawu, JSC stated:

"The award of costs is of course, always at the discretion of

the Court which discretion must be exercised both

judicially and judiciously… It is also a well-established

principle that costs follow events and that a successful

party is entitled to cost unless there are special reasons for

depriving him of his entitlement…"

The essence of costs is to compensate the successful party

for part of the

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losses incurred in the litigation. Costs cannot cure all the

financial losses sustained in the litigation. It is also not

meant to be a bonus to the successful party, and it is not to

be awarded on sentiments. The award of costs being a

matter within the discretion of the trial Court, an appellate

Court will not normally interfere in the exercise of

discretion by the trial Court in awarding costs except

where it is shown not to have been exercised judicially and

judiciously. The aim of the award of costs is to indemnify or

compensate the successful party for expenses incurred in

the course of the litigation. Costs are however not meant to

punish the unsuccessful party. See OYEDEJI vs.

AKINYELE (2001) FWLR (PT. 77) 970 at 1001, M. H.

(NIGERIA) LIMITED vs. OKEFIENA (supra) and ERO

vs. TINUBU (2012) LPELR (7869) 1.

In GAMBARI vs. ILORI (2002) 14 NWLR (PT. 786) 78

at 103-104, Mohammed, JCA held as follows:

"I shall however comment briefly on the complaint of the

appellant on the N5000.00 costs awarded against him by

the trial Court which the learned Counsel to the appellant

described as improper and not supported by evidence or

submission of Counsel relating to out of pocket expenses.

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Unquestionably, the award of costs by the Court to the

successful party falls squarely within the discretionary

domain of the Court, which discretion as the law requires,

must be exercised judicially and judiciously particularly in

the absence of any guidance in the various civil procedure

rules of the High Courts as contained in the Supreme Court

Rules and the Court of Appeal Rules. While it is true that a

successful litigant should not be denied costs, it is firmly

established that costs must follow the event but many a

time circumstances and for good reasons, the defeated

party may not be damnified in costs... As a general

principle therefore, it may be said that costs are in the

discretion of the Court and for that reason, where the Court

exercised its discretion judicially and judiciously as

opposed to doing so capriciously or upon any wrong

principle, an appellate Court is without power to interfere

with such honest exercise of the Court's discretion."

Order 49 Rule 1 of the High Court of Lagos State (Civil

Procedure) Rules, 2012 referred to by the parties stipulates

as follows:

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“(1) In fixing the amount of costs, the principle to be

observed is that the party who is in the right is to be

indemnified for the expenses to which he has been

necessarily put in the course of proceedings, as well as

compensated for his time and effort in coming to Court.

Such expenses shall include:

(a) The cost of legal representation and assistance of the

successful party to the extent that the Judge determines

that the amount of such cost is reasonable;

(b) The travel and other expenses of parties and witnesses

to the extent that the Judge determines that the amount of

such expenses is reasonable, and such other expenses that

the Judge determines ought to be recovered, having regard

to the circumstances of the case.

(2) When costs are ordered to be paid, the amount of such

costs shall, if practicable, be summarily determined by the

Judge at the time of delivering the judgment or making the

order.

(3) When the Judge deems it to be impracticable to

determine summarily the amount of any costs which he has

adjudged or ordered to be paid, all questions relating

thereto shall be referred by the Judge to a Taxing Officer

for taxation.”

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It is evident that the above provision deals with the

principle to be observed by a Court in fixing costs to be

awarded to the parties. Going by the strict application of

the provision, both parties having registered success in the

action, and therefore “in the right” were entitled to costs.

The lower Court however exercised discretion by awarding

costs to the Cross Respondents only. So costs were

awarded against the successful Cross Appellant. In other

words, costs were not awarded in favour of the successful

Cross Appellant. Put differently once again, costs were not

awarded against the unsuccessful Cross Respondents upon

the success of the Cross Appellant’s counterclaim. The

question is whether this was a judicial and judicious

exercise of discretion.

At the risk of prolixity, there was a claim and a

counterclaim before the lower Court. The claim and

counterclaim succeeded in part; so it was not a win-win for

either party at the lower Court. The exercise of discretion is

a liberty or privilege to decide and act in accordance with

what is fair and equitable under the circumstances of the

particular case, guided by the spirit and principles of law:

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THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN

OVERSEAS CHARTERING & SHIPPING LTD (2003) 9

MJSC 156 at 168. Like all judicial discretions, the

discretion is exercised judicially and judiciously. Judicial in

the sense that it must be for a reason connected with the

case and judicious in the sense that it must be based on

sound judgment marked by discretion, wisdom and good

sense. SeeERONINI vs. IHEUKO (1989) 3 SCNJ 130 at

141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1

at 8.

In the diacritical circumstances of the manner in which the

decision of the lower Court turned, in which neither party

could be said to have wholly carried the day, it seems to me

that the award of costs to the Cross Respondents against

the Cross Appellant was not the exercise of discretion for a

reason connected with the case. It was not based on sound

judgment, wisdom and good sense to have awarded costs in

favour of only one of the successful parties against an

equally successful party. In a coda, it was not fair and

equitable and it was a wrong exercise of judicial discretion.

An appellate Court will definitely interfere in the

circumstances.

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The Cross Respondents had claimed the legal cost of the

action as a specific relief. The lower Court considered the

evidence adduced in that regard and was unable to grant

the same. Contrary to the contention of the Cross

Respondents, the lower Court was right not to have relied

on the evidence adduced in the unsuccessful proof of legal

costs to arrive at the amount to award as costs of the

action. The lower Court gave no reasons for awarding costs

against the equally successful Cross Appellant; such cannot

be allowed to stand. It is not a question of whether the

amount awarded as costs is excessively high or not; rather

it is that in the peculiar circumstances, the proper exercise

of discretion was that costs should not have been awarded.

The parties having both succeeded ought to bear their

respective costs of the litigation. Consequently, this Issue

Number Two is resolved against the Cross Respondents.

The costs awarded in favour of the Cross Respondents is

hereby set aside. There shall be no order as to costs. The

parties are to bear their respective costs.

ISSUE NUMBER THREE

Whether the lower Court was right not to have expunged

Exhibit CW1-11 (letter dated 25th day of October 2010)

from the record of the Court.

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COUNSEL

The quiddity of the Cross Appellant’s contention on this

issue is that after it wrote its letter, Exhibit CW3. L

threatening legal action, the Cross Respondents replied by

their Exhibit CW1. 11 and returned the payment invoices

which had earlier been forwarded to them on the ground

that they did not reflect the true position of the consultancy

fees due to the Cross Appellant. It was posited that the said

Exhibit CW1.11 was written in anticipation of the legal

proceedings that was threatened and was rendered

inadmissible by the provisions of Section 83 (3) of the

Evidence Act. The Court was urged to expunge the said

Exhibit CW1.11 notwithstanding that an objection was not

taken to its admissibility vide CHUKWU vs. FRN (2013)

12 NWLR (PT. 1369) 488 at 509.


COUNSEL

The Cross Respondents opine that Exhibit CW1.11 having

been admitted without objection, that the Cross Appellant

could no longer be heard to complain about its admissibility

not having objected when the document was tendered in

evidence.

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It was stated that except for documents rendered

inadmissible for failure to satisfy some conditions or

criteria, an opposing party who fails to object to the

admissibility of a document cannot thereafter be heard to

complain about its admissibility. The cases ofETIM vs.

EKPE (1983) 14 NSCC 86 at 95-96, OLANLOYE vs.

FATUNBI (1999) 8 NWLR (PT 614) 203 at 229 and

IKENNA vs. BOSAH (1997) 3 NWLR (PT. 494) 439 at

452-453 were relied upon. It was maintained that Exhibit

CW1.11 was not written in anticipation of litigation but was

only a response to the Cross Appellant’s Exhibit CW3. L.

CROSS APPELLANT’S REPLY ON LAW

The Cross Appellant states that Exhibits CW1.11 is not a

document that is admissible subject to any conditions being

satisfied, but that it is rendered inadmissible by Section

83(3) of the Evidence Act. It was asserted that a document

which is inadmissible is invalid for all intents and purposes

and cannot form the basis of any competent finding by a

court vide NWAOGU vs. ATUMA (2013) 11 NWLR (PT.

1364) 117 at 136 -137. It was conclusively submitted that

an appellate Court has a duty to exclude inadmissible

evidence and decide the case

46

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based on the legally admissible evidence. The cases of

BUHARI vs. OBASANJO (2005) 13 NWLR (PT. 941) 1

and OZIGI vs. UBN (1994) 3 NWLR (PT. 333) 385 were

cited in support.

RESOLUTION OF ISSUE NUMBER THREE

The parties disagree and dispute the percentage payable to

the Cross Appellant as consultancy fees. The case powered

by the Cross Appellant is that the percentage payable to it

as consultancy fees was changed from 1% to 2.87%. The

Cross Respondents maintain that the percentage remained

at 1% and was not changed. The Cross Appellant’s

contention is that the Cross Respondents in Exhibit CW1.11

turned around to deny that the percentage had been

revised from 1% to 2.87%.

It is the Cross Appellant’s case that the percentage due to

it is 2.87% as revised; so it had the burden of proving the

same. The crux of the contention under this issue is on

wrongful admission of evidence. The law is that wrongful

admission of evidence shall not of itself be a ground for the

reversal of a decision where it appears on appeal that such

evidence cannot reasonably be held to have affected the

decision and that the decision would have been the same

47

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if such evidence had not been admitted. See EZEOKE vs.

NWAGBO (1988) 1 NWLR (PT. 72) 616 at 630,

OJENGBEDE vs. ESAN (2001) 18 NWLR (PT. 746) 791

and MONIER CONSTRUCTION CO LTD vs. AZUBUIKE

(1990) 3 NWLR (PT. 136) 74 at 88. So even if Exhibit

CW1.11 was not admissible by virtue of the stipulations of

Section 83 (3) of the Evidence Act, the wrongful admission

of the same, eo ipso, cannot form the basis for overturning

the decision of the lower Court where it transpires that the

Cross Appellant did not prove its case on the percentage of

consultancy fees payable to it.

Section 251 (1) of the Evidence Act provides as follows:

“The wrongful admission of evidence shall not of itself be a

ground for the reversal of any decision in any case where it

appears to the Court on appeal that the evidence so

admitted cannot reasonably be held to have affected the

decision and that such decision would have been the same

if such evidence had not been admitted.”

So the question is whether without Exhibit CW1.11, the

judgment of the lower Court would have been different.

Where it will not make any difference to the decision

reached, then the wrongful admission

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shall not be a basis on which to reverse the decision of the

lower Court: YASSIN vs. BARCLAYS BANK DCO (1968)

LPELR (25440) 1 at 14-15, OKONJI vs. NJOKANMA

(1999) LPELR (2477) 1 at 46 and ALLI vs .

ALESHINLOYE (2000) LPELR (427) 1 at 51-52. We

would find out in the course of examining the next issue,

which deals with how the evidence preponderates on the

vexed question of review of the percentage of consultancy

fees payable to the Cross Appellant from 1% to 2.87% and

proof thereof, whether the wrongful admission of the said

Exhibit CW1.11 affected the decision of the lower Court;

such that the exhibit should be expunged and the decision

of the lower Court reversed.

ISSUE NUMBER FOUR

Whether the lower Court was right when it held that there

was no evidence of agreement of parties as to extension

and revision of scope of work and that no consensus was

reached between the parties as regards the review of

consultancy fees from 1% to 2.87%.


COUNSEL

The conspectus of the Cross Appellant’s contention is that

the scope and duration of the consultancy agreement with

the Cross Respondents was expanded

49

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and extended consequent upon which the consultancy fees

was reviewed from 1% to 2.87% and that the Cross

Respondents accepted the reviewed percentage of 2.87%.

It was maintained that a contract can be given effect to

whether in writing, parole or established by conduct of the

parties and that the Courts effectuate the intention of the

parties. The cases of UTC NIGERIA PLC vs. PHILLIPS

(2012) 6 NWLR (PT. 1295) 136 at 163, ADENIRAN vs.

OLAGUNJU (2001) 17 NWLR (PT. 741) 159 at 187,

OMEGA BANK (NIG) PLC vs. O.B.C. LTD (2005) 8

NWLR (PT. 928) 547, DASPAN vs. MANGU LOCAL

GOVT. COUNCIL (2013) 2 NWLR (PT. 1338) 203

among other cases were referred to. It was opined that the

evidence established that the review and increase from 1%

to 2.87% was accepted by the Cross Respondent vide

Exhibit CW3 J.

It was asserted that the invoices sent to the Cross

Respondents was based on increased consultancy fees of

2.87% and that the Cross Respondents made some

payments on the said invoices, which was conduct showing

that the Cross Appellant was entitled to payment based on

2.87%. Section 169 of the Evidence Act was referred to, to

the effect that the Cross Respondents were estopped from

contending the contrary.

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COUNSEL

The Cross Respondents submit that parties are bound by

contracts voluntarily entered into and that it is not the duty

of a Court to make a contract for the parties. The case of

BAKER MARINE (NIG) LTD vs. CHEVRON (NIG) LTD

(2006) 13 NWLR (PT. 997) 276 at 287-288 and FGN

vs. ZEBRA ENERGY LTD (2002) 3 NWLR (PT. 754)

471 at 491 were called in aid. It was asserted that the

agreement between the parties was on payment of 1% as

consultancy fees to the Cross Appellant and that there was

no consensus on the review of the consultancy fee to

2.87%. It was posited that the Cross Appellant having

predicated its invoice on 2.87% did not mean that the Cross

Respondents accepted the review to 2.87%.

RESOLUTION OF ISSUE NUMBER FOUR

The hornbook principle of law is that in order for parties to

be bound by their agreement, they must be ad idem as its

terms. See A-G RIVERS STATE vs. A-G AKWA IBOM

STATE (2011) LPELR (633) 1 at 23-24 and BILANTE

INTERNATIONAL LIMITED vs. NDIC (2011) LPELR

(781) 1 at 23-24. It is not confuted that the parties were

ad idem on the payment of 1% as

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consultancy fees at the time of their contract in Exhibit

CW1.1. The pertinent question is whether the parties

arrived at a similar consensus on the upward review of the

consultancy fees to 2.87%, consequent upon the extension

and revision of the scope of work under the consultancy.

The Cross Appellant contends that the Cross Respondents

accepted the review and relies, inter alia, on the conduct of

the Cross Respondents in making payment on the invoice

which was based on 2.87% and also on Exhibit CW3 J. Now,

in Exhibit CW3 J, the Cross Respondents while agreeing in

principle on review requested the Cross Appellant to send

the proposal for review and further discussion. This clearly

shows that the parties had not reached any consensus on

the review as the same was to be subjected to further

discussion. Undoubtedly, the upward review of the

consultancy fees to 2.87% remained inchoate.

The Cross Appellant had rendered services under the

consultancy agreement for which it was entitled to

payment. The Cross Appellant raised its invoice for

payment, albeit, predicated on 2.87% as consultancy fees.

The Cross Respondents made some payment on the

invoice.

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It is beyond disputation that a workman is entitled to his

wages; therefore the fact that some payment was made on

the invoice does not connote an acceptance of 2.87% as the

fees due to the Cross Appellant. It could only have been so

inferred if the payment made was in excess of the agreed

1% that the Cross Appellant was entitled to as consultancy

fees. This has not been shown to be so. I am therefore

unable to agree with the Cross Appellant that the conduct

of the Cross Respondents in making some of the payment

due on the contract amounted to acceptance of 2.87% as

the fees, for which they were estopped by the doctrine of

estoppel from asserting the contrary.

It is a fundamental principle of law that parties are bound

by the terms of their contract and it is not open to one of

the parties in the absence of novation to unilaterally

change or vary the terms of the contract by incorporating

into it one or more terms that had not been agreed upon by

both parties: MAIDARA vs. HALILU (2000) LPELR

(10695) 1 at 19, GAMBAGA s. MBIU (2014) LPELR

(41079) 1 at 17 and ISIYAKU vs. ZWINGIWA (2001)

FWLR (PT. 72) 2096. Any variation of the agreed terms

has to be by mutual

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consent and there must be offer and acceptance of the

variation for the required consensus ad idem to be present.

See EKWUNIFE vs. WAYNE W. A. LTD (1989) LPELR

(1104) 1 at 13 and UNITY BANK vs. OLATUNJI (2014)

LPELR (24027) 1 at 47-48. The evidence on record does

not bear out the meeting of the minds of the parties and

their consensus on the extension and revision of the scope

of work and the upward review of the percentage payable

to the Cross Appellant as consultancy fees. The parties did

not have a concluded bargain in that regard and so there

was no binding contract for the payment of 2.87% as

consultancy fees to the Cross Appellant. See ATIBA

IYALAMU SAVINGS & LOANS LTD vs. SUBERU (2018)

13 NWLR (PT. 1637) 387 at 404. The lower Court

arrived at the correct decision in this regard when at pages

1622-1623 of Volume 3 of the Records, it held as follows:

“Now the question is whether or not the trail of e-mails

above mentioned are sufficient to amount to a review of the

‘agreement of parties’ in this instance. There is no doubt in

the mind of the Honourable Court that a review of the

agreement was presented by the Defendant to the 1st

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and 2nd Claimants and that Chris Ugwu informed Bonum of

the ‘agreement in principle’ to a review’ he however

requested in the email of 04/22/09 at 9.24a.m for the

proposal for review and further discussion.

The question is not whether the review is desirable of ‘fair’

or indeed that ‘there was an agreement in principle subject

to approval’ the issue is was there indeed a consensus ad-

idem between the parties as to an increase in the

consultancy fees 1% to 2.87% as contended in the counter-

claim?

The Honourable Court has carefully considered the entirety

of facts before it as regards the ‘review’ and finds that

indeed no consensus was reached between parties as

regards to the review of its consultancy fees from 1% to

2.87% as attested by the Defendant/Counter-Claimant.

There is also clearly no evidence of agreement of parties as

to the extension and revision of scope of work.

From the totality of evidence before this Honourable Court,

there i s there fo re no bas i s t o ho ld tha t the

Defendant/Counter-Claimant is entitled to consultancy fees

2 . 8 7 % o f a l l g r o s s a m o u n t s a p p r o v e d p e r

change/variation order but to 1% of all gross amounts

approved per change/variation."

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The evidence adduced by the Cross Appellant did not

establish entitlement to be paid 2.87% as consultancy fees;

it consequently becomes of no moment as it relates to the

contention in issue number three above, whether Exhibit

CW1.11 was wrongfully admitted in evidence or not since

without the said exhibit, the decision of the lower Court

would have been the same since the evidence did not

establish the meeting of the minds of the parties.

Indubitably, this issue is resolved against the Appellant.

Every blade of grass in the field of this judgment has been

tended and groomed. Even though issue number two was

resolved in favour of the Cross Appellant, the other issues

were resolved against it. In the general scheme of the

appeal, the appeal succeeds in part on account of setting

aside of the costs of N500, 000.00 awarded in favour of the

Cross Respondents by the lower Court. The parties are to

bear their respective costs of this appeal.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I

have had the opportunity to read in advance the lead

judgment of my

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learned brother, UGOCHUKWU ANTHONY OGAKWU,

J.C.A., and I am in agreement with the judgment.

I have nothing more to add.

I also abide by the consequential order in the lead

judgment.

TOBI EBIOWEI, J.C.A.: I was afforded the opportunity of

reading in draft the judgment just delivered by my learned

brother UGOCHUKWU ANTHONY OGAKWU, J.C.A.

I agree with the reasoning and conclusion reached therein

in the said judgment.

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Appearances:

Tochukwu Onyiuke, Esq. with him, Ms. EmmaNdiyo For Appellant(s)

Dr. Muiz Banire, SAN with him, Adebayo Badmus,Esq. Ms. Adesumbo Odukoya and Ms. OmolabekeOki For Respondent(s)

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Documents

(2019) LPELR-46442(CA) - lawpavilionpersonal.comlawpavilionpersonal.com/ipad/books/46442.pdf · 616 at 630, OJENGBEDE vs. ESAN (2001) 18 NWLR (PT. 746) 791 and MONIER CONSTRUCTION