DUNLOP NIGERIA PLC. (NOW DN TYRE & RUBBER PLC.) V. GASLINK NIGERIA LIMITED
April 12, 2025PRINCE TOYIN KUNLE KAYODE & ORS v. THE REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH
April 12, 2025Legalpedia Citation: (2018) Legalpedia (CA) 11103
In the Court of Appeal
HOLDEN AT LAGOS
Mon Feb 5, 2018
Suit Number: CA/L/328/2014
CORAM
PARTIES
DOYIN MOTORS LIMITED APPELLANTS
1. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED2. MANDILAS ENTERPRISES LIMITED3. ACCESS BANK PLC RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Appellant bided and was awarded a contract by the 1st Respondent for operation and maintenance of 1st Respondent’s (SPDC) light vehicles in the Western Division for a period of 3 years, effective from 01-01-2006 to 31-12-2008. The Appellant allegedly provided the services and equipment to the 1st Respondent in accordance with the contract. At the close of business, the 1st Respondent allegedly owed the Appellant the sum of N664, 339,092.85. With respect to the 2nd Respondent, the Appellant’s grouse was that contrary to the terms of the contract the 2nd Respondent interfered with the contractual relationship between the Appellant and the 1st Respondent by receiving jobs of the same type from the 1st Respondent during the duration of the contract between the Appellant and the 1st Respondent. In the case of the 3rd Respondent, the Appellant alleged that it sourced a loan of N80, 000,000 from the 3rd Respondent to finance the contract. The loan was granted on terms and conditions to the effect that the domiciliation of all proceeds from the contract with the 1st Respondent shall be paid by the 1st Respondent into an account opened by the Appellant with the 3rd Respondent as well as salaries of all the employees of the Appellant involved in providing of services to the 1st Respondent under the contract. The Appellant complied with the terms and conditions and was granted the loan. It opened an account with the 3rd Respondent bank at Warri to that effect. The 1st Respondent at all material times used to make payments to the Appellant through First Bank Plc. In accordance with the Appellant’s instruction, the 1st Respondent initially made payments to the specified account of the Appellant but she subsequently failed to do so and, instead, allegedly diverted monies owed the Appellant by the 1st Respondent to third party accounts with the 3rd Respondent with the collusion of the 3rd Respondent. The said payments included unauthorised bonuses allegedly made to the employees of the Appellant contrary to the terms of the contract, which amounted to loss of N389, 085,923.29 from the unauthorised payments and N275, 313,169.56 representing the excess from various unauthorised deductions. The Appellant then brought an action against the Respondents at the High Court of Lagos State, for breach of contract, damages and interest. The trial court in its entire decision dismissed the Appellant’s claim but granted the counter claim of the 1st Respondent. Dissatisfied with the decision of the trial court, the Appellant has filed an appeal to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
None
RATIONES DECIDENDI
TERMS OF AGREEMENT – PARTIES ARE BOUND BY THE TERMS AN AGREEMENT
“The terms of an agreement, such as the contract document in Exhibit P15 or P64, is sacrosanct on the footing that parties to a contract enjoy the freedom to agree on their own lawful terms and be bound by the contract. It is not the business of the court to rewrite the contract for the parties. The court, however, has the responsibility to construe the contract literally and harmoniously taking into account the surrounding circumstances including written or oral statement so as to discover the intention of the parties as contained in the plain words of the contract vide BFI Group Corporation v. Bureau of Public Enterprises (2012) 18 NWLR (pt.1332) 209 at 238 – 239 and 246 following the cases of Afrotec Tech. Services (Nig.) Ltd. v. M.I.A. and Sons Ltd. (2000) 15 NWLR (pt.692) 730, Owoniboys Technical Services Ltd. v. U.B.N. Ltd. (2003) 15 NWLR (pt.844) 545, S.E. Co. Ltd. v. N.B.C.I. (2006) 7 NWLR (pt.978) 198, Omega Bank (Nig.) Plc v. O.B.C. Ltd. (2005) 8 NWLR (pt.928) 547. See also the cases of Ogundepo v. Olumesan (2011) 18 NWLR (pt.1278) 54, Artra Industries Ltd. v. N.B.C.I (1997) 1 NWLR (pt.483) 593, Agbareh (supra), Larmie (supra), Kaydee Ventures Ltd. (supra).”
IMPLORE – MEANING OF IMPLORE
“To “implore” simply means to beseech or beg someone to do something (Oxford Advanced Learner’s Dictionary 7th Edition 748). It has no compulsion or command leaving the person appealed to with discretion to embrace the plea or appeal or discard it.”
FINDINGS OF FACT BY A TRIAL COURT – CIRCUMSTANCES WHERE THE FINDINGS OF FACT BY A TRIAL COURT WILL NOT BE DISTURBED
“The said findings are supported by the evidence in question and have not been shown to be unreasonable or perverse and therefore cannot be disturbed vide Ebba v. Ogodo (1984) 1 SCNLR 372, Balogun v. Agboola (1974) 1 All NLR (pt.2) 66, Otukpo v. John (2012) 7 NWLR (pt.1299) 357 at 384 following Agbi v. Ogbeh (2006) 11 NWLR (pt.990) 65, Ojokolobo v. Alamu (1998) 9 NWLR (pt.565) 226, Sha v. Kwan (2000) 8 NWLR (pt.670) 685, Fagbenro v. Arobadi (2006) 7 NWLR (pt.978) 172. See also Purification Technique (Nig.) Ltd. and Ors. v. Jubril and Ors. (2012) 18 NWLR (pt.1331) 109 at 142 – 143 following Nneji v. Chukwu (1996) 10 NWLR (pt. 478) 265, Theophilus v. State (1996) 1 NWLR (pt.423) 139, Nwosu v. Board of Customs and Excise (1988) 5 NWLR (pt.93 225), Chukwendu v. Mbamali (1980) 3 – 4 S.C. 31.”
ACCEPTANCE BY CONDUCT – WHETHER BUSINESS LETTERS NOT REPLIED TO BY THE RECIPIENT ARE DEEMED TO BE ACCEPTANCE BY CONDUCT
“I endorse the findings (supra) and desire to add by way of amplification that business letters such as Exhibit P4, for example, not replied to by the recipient are deemed to be acceptance by conduct of what is contained therein by the recipient; and that the default to reply such correspondence can be presumed that the recipient had no objection to the proposals contained therein vide Cooperative Development Bank Plc v. Arc. Mfon Ekanem and Ors. (supra) following the cases of Chemical Allied Products Plc v. Vital Investments Ltd. (2006) 6 NWLR (pt.976) 220 at 267, Brogden v. Metropolitan Railway Co. (1877) 2 App. Cases 666, Rophobone Facilities Ltd. v. Blank (1966) 1 WLR 1428. See also Gwani v. Ebule (1990) 5 NWLR (pt.149) 201 at 207.”
SPECIFIC FINDINGS OF FACT – WHETHER SPECIFIC FINDINGS OF FACTS NOT APPEALED AGAINST ARE BINDING
“Specific findings of fact not appealed against are deemed conceded by an appellant and remain binding and conclusive vide Biezan Exclusive Guest House Ltd. and Ors. v. Union Homes Savings and Loans Ltd. (2011) 7 NWLR (pt.1246) 246 at 283 following Alakija v. Abdulai (1998) 6 NWLR (pt.552) 1 at 24, Odiase v. Agho (1972) 1 All NLR (pt.1) 170, Yesufu v. Knupper International N.V. (1996) 5 NWLR (pt.446) 17, Nwabueze v. Okoye (1988) 4 NWLR (pt.91) 664, Tsokwa (Nig.) Ltd. v. U.B.N. Ltd. (1996) 9 NWLR (pt.471) at 129, Omeregbe v. Lawani (1980) 3 – 4 S.C. 108, Okereke v. Ezioffor (1996) 3 NWLR (pt.434) 90, Amoshime v. State (2011) 14 NWLR (pt.1268) 530 at 555 and 560.
Moreover, there was no ground of appeal and issue for determination derivable therefrom challenging the said specific finding of fact contrary to established practice that there must be an issue extracted from a ground of appeal or cluster of grounds of appeal before the complaint against a decision of a court may be grounded vide Latunde and Ors. v. Lajinfin (supra), Emenike v. P.D.P. (2012) 12 NWLR (pt.1315) 556 at 589, Wachukwu and Anor. v. Owunwanne and Anor. (2011) 14 NWLR (pt.1266) 1 at 30 – 31 following Nwana v. F.C.D.A. (2007) 11 NWLR (pt.1044) 59, Ibator v. Barakuro (2007) 9 NWLR (pt.1040) 475, Chime v. Chime (2001) 3 NWLR (pt.701) 527, Momodu v. Momoh (1991) 1 NWLR (pt.169) page 6.8.”
DECISION OF COURT – WHETHER AN APPEAL COURT IS CONCERNED WITH THE REASON FOR THE DECISION ARRIVED AT BY A TRIAL COURT
“The court below accordingly reached the correct or right conclusion that the appellant did not prove this aspect of its claim vide Ukejianya v. Uchendu 13 W.A.C.A. 41 at 45, Lebile v. Registered Trustees of Cherubim and Seraphim (2003) 1 S.C. (pt.1) 25, Taiwo and Ors. v. Sowemimo (1982) 5 S.C. 60 at 74 – 75, Ndayako and Ors. v. Dantoro and Ors. (2004) 13 NWLR (pt.689) 187, M. M. Alli Co. Ltd. v. Goni (2006) 10 NWLR (pt.987) 88, N.B.C. Plc v. Olanrewaju (2007) 5 NWLR (pt.1027) 255 at 198 to the effect that an appeal court is concerned whether the decision arrived at by the trial court is right not necessarily the reasons for the decision save if the reasons are intertwined with the decision.”
AWARD OF COST – ATTITUDE OF COURT ON THE AWARD OF COST
“A successful party is automatically entitled to costs and denial or failure to award costs in such situation must be supported with reason(s) why the successful party was not awarded costs which follow event vide Adenaiya v. Governor-in-Council (1962) 1 All NLR 308, Mbanugo v. Nzefili (1998) 2 NWLR (pt.537) 343 at 353, C.C.B. Nig. Plc v. Okpala (1997) 8 NWLR (pt.518) 673.”
AWARD OF COST – RATIONALE FOR AWARDING COST
“Costs are not awarded to penalise a party who is ordered to pay them, nor are costs awarded as wind-fall to a successful party. Costs are meant to indemnify the winning party for his out of pocket expenses representing the actual and true/fair expenses incurred by the litigation, therefore except it is clearly shown that the court awarding the costs wrongly exercised its discretion by taking into consideration extraneous factors, showing arbitrary and mala fide exercise of discretion by the court awarding the costs, before an appellate court may disturb the award vide Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1, Kukoyi v. Odufale (1965) 1 ALL NLR 300, Olasope v. National Bank of Nigeria (1985) 3 NWLR (pt. 11) 147, Rewane v. Okotie-Eboh (1960) SCNLR 461 or (1960) 5 FSC 200, Ozigbu Engineering Co. Ltd. v. Philip Iwuamaidi (2009) NWLR (pt. 1166) 44 at 72 – 73 per the lead judgment prepared by his lordship, Garba, J.C.A., following Ogunmokun v. Military Administrators, Osun State (1991) 3 NWLR (pt. 594) 261, N.B.I.C. v. Alfirjir (Nig) (1993) 4 NWLR (pt. 287) 346, Akingbola v. Plisson Fisko (Nig) Ltd. (1991) 1 NWLR (pt. 167) 270, Biode v. Pharmaceutical Adsell Ltd. (1986) 5 NWLR (pt. 46) 1070, Obayagbona v. Obazee (1972) 5 SC 247, Wurno v. U.A.C. Ltd. (1956) SCNLR 99. In awarding costs the court normally takes into account some factors like the fees paid for the filing and prosecution of all the processes in the action as well as fees for counsel’s appearance plus reasonable and realistic out of pocket expenses under the prevailing economic conditions and as well as the statutory fees dictated by the rules of the court, where applicable, and the category is open-ended vide Ozigbu Engineering Co. Ltd. v. Iwuanadi (supra) at 73 following Onabanjo v. Ewetuga (1993) 4 NWLR (pt. 288) 445, Uzoma v. Okorie (2000) 15 NWLR (pt. 692) 882, N.C.C. Ltd. v. SCOA Ltd (1991) 7 NWLR (pt. 201) 80, Delta Steel (Nig) Ltd. v. American Comp. Tech. Incorp. (1999) 4 NWLR (pt. 597) 53 and Rewane v. Okotie – Eboh (1960) SCNLR 461.”
COURTAWARD OF COST – EXERCISE OF THE COURT’S DISCRETION IN THE AWARD OF COST
“The award of costs is at the discretion of the court which must be exercised fairly or judiciously and judicially as costs always follow event and a successful party is as such entitled to costs unless there are proven special reasons for depriving him of costs which must be shown by the court depriving him of the costs vide Obayagbona v. Obazee (1972) 5 SC 246, Amira (Nig) Ltd. v. Mal (Nig) Ltd. (2001) 17 NWLR (pt. 742) 464, Idam v. Mene (2009) 17 NWLR (pt. 1196) 74.”
CASES CITED
None
STATUTES REFERRED TO
None|
