CORAM

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PARTIES

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PACERS MULTI-DYNAMICS LTD OLU FAGBEMI APPELLANTS

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ECOBANK PLC (SUBSTITUTED BY ORDER OF COURT DATED 19/05/2010) RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent alleged that at the request of the 1st Appellant, it offered to finance the importation of 7,000 metric tons of sugar in the sum of N222, 000,000.00, for Nigerian Bottling Co. Plc, at the interest rate of 21% per annum and secured by a consignment of the letter of credit to the Respondent and a domiciliation of payments in respect of the consignment by Nigerian Bottling Company Plc., to the Respondent. The facility was for 90 days, that after the offshore account of the Respondent had been allegedly debited to fund the letter of credit for the importation, the 1st Appellant “surprisingly” furnished the Respondent with an undertaking from Nigerian Bottling Company Plc., to domicile payments to the Respondent for the value of the importation only without any provisions for clearing charges and payments of interest upon which the Respondent demanded that the 1st Appellant should provide for clearing charges and interest. Having not repaid the loan in full, the Respondent filed an action at the Federal High Court to recover same and upon application on notice for final judgment, the court granted part of the claim in the sum of N66, 588,192.18 against the Appellants being part of the Respondent’s claim of N162, 588,192.18. On appeal, the Appellants raised a preliminary objection to the jurisdiction of the court to entertain the appeal on the ground that the law firm of Giwa Osagie and Co. signed the writ of summons and the statement of claim hence, the processes are fundamentally defective and affects the competence of the suit and the appeal should be struck out.

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HELD

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Preliminary Objection Dismissed, Appeal Dismissed

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ISSUES

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None

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RATIONES DECIDENDI

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STATEMENT OF CLAIM – EFFECT OF A FAILURE TO OBJECT TO A STATEMENT OF CLAIM NOT SIGNED BY A LEGAL PRACTITIONER

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“Assuming without agreeing that the statement of claim was not signed by an identifiable legal practitioner, having not objected to it at the court below and allowed the case to proceed to full trial and determination on the merit at the court below the appellants would have been deemed to have waived the irregularity vide A.-G., Kwara State and Anor. v. Alhaji Saka Adeyemo and Ors. (supra), Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (supra) cited by the respondent. Likewise, the motions (supra) referred to by the respondent.”-

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“WITHOUT PREJUDICE” – WHETHER A LETTER WRITTEN WITH THE EXPRESSION “WITHOUT PREJUDICE” IS ADMISSIBLE IN EVIDENCE

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“A letter written with the expression ‘without prejudice’ is restricted only to cases where there is unresolved dispute or negotiation is still in progress and is yet to crystallise into an agreement between the parties to the dispute in which case the letter or correspondence is inadmissible in evidence on the footing that confidential overtures so made should be excluded from evidence on the ground of public policy. Because if it is not so, amicable settlement of disputes would be difficult and the defendant would be prejudiced and/or unprotected by a grasping adversary who may exploit the amicable arrangement to settle the dispute by relying on an offer made in the course of the negotiation as binding on the person that made it in disregard of the fact that it was made under disputed circumstances or at the time there was dispute between the parties.” –

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ADMISSIBILITY OF EVIDENCE – INSTANCE WHERE A LETTER WRITTEN WITH THE EXPRESSION “WITHOUT PREJUDICE” WILL BE ADMISSIBLE IN EVIDENCE

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“In the instant case, the extract (supra) which referred to what was arrived at a meeting between the representatives of the parties on 11-08-1999, while the letter, Exhibit AS1, was on 18-11-99 indicated concluded agreement on the quantum of indebtedness in that meeting of 11-08-99 which is unequivocal admission of the amount in question by the appellants, so the expression “without prejudice” in Exhibit AS1 became cosmetic or decorative and/or impotent and did not drain the agreed indebtedness of potency and efficacy vide Greyshot Enterprises Limited v. The Hon. Minister of Agriculture and Ors. (supra) at 22 – 23 where it was held inter alia that if, however, there is a concluded agreement the fact that the correspondence is ‘without prejudice’ would not affect its admissibility in evidence.
Thus in United Bank for Africa Limited v. I.A.S. Company Limited (2001) FWLR (pt.75) 578 cited with approval by the learned author, S.T. Hon. SAN, in his great works titled ‘S.T. Hon’s Law of Evidence in Nigeria (vol. II)’ published in 2012 in pages 858 – 859 thus –
“If ‘A’ owes ‘B’ N1,000.00 and “A” writes ‘B’ admitting that he owes the amount but offers to pay N900.00 in final settlement, it seems to me that even if the offer is made without prejudice, the evidence of admission ought to be receivable in evidence…………………..
Now, can it be said that the letters written by the 1st plaintiff’s solicitor under the cover “without prejudice” ought to be excluded from evidence on the ground that they covered admissions made in the course of bona fide negotiation? I think not. The solicitor to the 1st plaintiff/respondent never in any of the letters disputed that a loan of N70, 000.00 was granted to his client. …………………………………………….…..
therefore the plaintiff’s solicitor by writing exhibit BON7 was not in the course of negotiating to resolve a dispute …………………………. Merely putting the heading on the letter “without prejudice” cannot in my view make it inadmissible. This was not a negotiation in good faith to compromise a dispute.”
The subsequent letters in question being on the modalities for repayment of the agreed indebtedness cannot be said to be continuation of negotiation of the quantum of indebtedness because once a debt is admitted, the mode or time for repayment is a different matter vide Kenfrank Nigeria Limited and Ors. v. Union Bank of Nigeria Plc (2002) 8 NWLR (pt.789) 46 at 73 per the lead judgment prepared by Ikongbeh, J.C.A., (now of blessed memory).” –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Not Available|

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