A.I.C. Limited V. Mannesmann-anlagendau Ag & Anor (1993)

LawGlobal-Hub Lead Judgment Report

IBRAHIM KOLAPO SULU-GAMBARI, J.C.A.

T

his is an appeal from the ruling of the Hon. Justice Ligali A. Ayorinde of the High Court of Lagos State, delivered on the 23rd day of March, 1989, upon an application before the court in which the respondents herein prayed for the order of the High Court striking out Suit No. LD/264/88 on the grounds –
(i) that the trial court had no jurisdiction to entertain the suit:
(ii) that the action is res judicata; and
(iii) that the action is frivolous, vexatious and constitutes an abuse of court process.

The background facts of the case on appeal is as follows: The plaintiff/appellant secured a contract for the construction of oil pipeline for the 1st defendant, a German Company, from the 2nd defendant – Nigerian National Petroleum Corporation (NNPC) in which the appellant earned some commission.
Due to the default of the 1st defendant in paying the accrued commission to the appellant, an action was instituted by the appellant in Dusseldorf in Germany claiming the commission due. The suit filed in Dusseldorf was heard and determined against the plaintiff/appellant and it took appropriate step to appeal in Germany accordingly. While the proceedings in Germany was still pending, another suit was initiated and commenced in the Lagos High Court in which the plaintiff in the Lagos High Court purported to show that its claim in the Lagos High Court is not inclusive of the amount claimed before, the Dusseldorf Court in Germany. In other words, the plaintiff was suing for the amount due under the Contract but which was not covered by the claims in Germany.

Furthermore, the plaintiff/appellant claimed also in alternative the said sum from the 1st defendant as quantum meruit and joined the 2nd defendant to secure that payment due from the 2nd Defendant to the 1st Defendant is not released by the 2nd Defendant pending the determination of the Lagos High Court suit.

The learned trial judge of the Lagos High Court held that the matter in litigation before him had been adjudicated upon by the Dusseldorf Court in Germany as the claim arose out of the same contract between the plaintiff/appellant and the 1st defendant; that the addition of the 2nd defendant as a party in the Lagos High Court case made no difference and that he would not allow the joinder of the 2nd defendant to becloud the issue because the cause of action (according to the learned trial Judge) was same in the action before his court and as in the German Court.

The plaintiff’s claim in the German Court is as follows:-
“1 (a) It should be determined that the defendant is obliged to pay a commission to the plaintiff of 5% on all amounts paid by NNPC to the defendant arising from the letter of intent of 15/19/20 June 1984 agreed between the defendant and the NNPC, with the exception of  amounts paid in respect of freight, packing and customs duties.
(b) It should be determined that the defendant is obliged to pay a commission to the plaintiff of 5% from 26 March 1987 on all amounts paid by NNPC to the defendant arising from the ESCRAVOS-LAGOS GAS PIPELINE PROJECT – CONTRACT “A” WESTERN GATHERING SYSTEM AND WARRI COMPLEX CONTRACT ADDENDUM I dated 26 March 1987 between the defendant and the NNPC, with the exception of amounts paid in respect of freight, packing and customs duties.
2(a) The defendant should be ordered to pay the plaintiff -sterling 20, 305,18 plus interest at 8% from 1 October, 1981.
(b) the defendant should be ordered to pay the plaintiff Naira 163,074.03 plus interest at 8% from 1 October, 1981.
3(a) The defendant should be ordered to pay the plaintiff Naira 53,205.52 plus interest at 10% from the time this amendment to the petition was served (4 December 1986).
(b) The defendant should be ordered to pay the plaintiff DM 54,904.31 plus interest at 10% from the time this amendment to the petition was served.
(c) The defendant should be ordered to pay the plaintiff -sterling 113.772.17 plus interest at 10% from the time this amendment to the petition was served.
(d) The defendant should be ordered to pay the plaintiff US $ 4.326,25 plus interest at 10% from the time this amendment to the petition was served.
(e) The defendant should be ordered to pay the plaintiff a further Naira 71,240.53 plus interest at 10% from the time this amendment to the petition was served.
(f) The defendant should be ordered to pay the plaintiff a further DM 890,287.09 plus interest at 10% from the time this amendment to the petition was served.
(g) The defendant should be ordered to pay the plaintiff a further ?’9197 Sterling 17,122,63 plus interest at 10% from the time this amendment to the petition was served.
(h) The defendant should be ordered to pay the plaintiff a further US ? 29,976,20 plus interest at 10% from the time this amendment to the petition was served.
4(a) The defendant should be ordered to pay the plaintiff 10% interest on Naira 38,680.55 for the time from 19 April 1985 to 4 December 1986.
(b) The defendant should be ordered to pay the plaintiff 10% interest on US $ 2,118,05, ?’9197 sterling 85,936.40, DM 20,593,90 and Naira 3,148.35 for the time from 1 October 1985 to 4 December 1986.”

The learned trial judge of the Lagos High Court proceeded to dismiss the claims both against the 1st and the 2nd defendants which is now the subject of appeal before this court. The appellant filed two grounds of appeal which are as follows:-
“I. The learned trial Judge erred in law in holding that the principle of Res Judicata was applicable to the facts of this case when having regard to the fact that the claim in the instant case is also grounded on quasi – contract, (that is a claim on quantum meruit), the cause of action could not be said to be the same as that before the court in Germany.
“2. The learned trial Judge erred in law when it held as follows:-
‘There are strong circumstances why the application of the 1st defendant should be granted. In the 1st place, it has expended money in Dusseldorf on litigation or suit filed by the plaintiff and which the plaintiff lost. The plaintiff’s appeal is still pending in the country. There is not one good reason advanced by the plaintiff against the application. The question is not that this court has no jurisdiction but it will not exercise it in the circumstance enumerated in Brandson test”.

PARTICULARS OF ERROR
The circumstances and factors taken into account by the learned trial Judge are irrelevant in determining the issues raised to wit, res Judicata and whether the action in Nigeria is vexatious and an abuse of the judicial process”.
The relief, as claimed in the appeal before us, is “to allow the appeal and set aside the decision of the trial court”.

The only issue postulated by the learned counsel for the appellant, which I too accept as appropriate, and in the absence of any other suggestion by the respondents, is sufficient to determine and dispose of the appeal. It reads:-
Whether or not the trial judge was right in applying the doctrine of res judicata to bar the plaintiff from prosecuting the present claim in Nigeria.”

When the appeal was ripe for hearing, it was discovered that the respondents did not or failed to file their briefs of argument. The appellant, abundnatia cautela, filed an application, the notice of what was served on the respondents, requesting for a date to be set for the hearing of the appeal on the brief filed by it. On the date set for the appeal to be taken, the appeal was heard on the brief filed by the appellant and judgement was accordingly reserved.

The respondents apart from not filing their briefs have also failed to appear on the date fixed for the hearing of the appeal to present their arguments. Rule 9(e) of the Rules of this Court provides as follows:-
“When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”
The position of the law is very clear and it is that where the respondent, who has been served with the appellant’s brief and notice of hearing of the appeal has filed no respondent’s brief, and/or has failed to appear to present his appeal, his portion of the appeal would be treated as having been argued without any further obligation to hear the respondent.
The respondents in the instant case have shown no interest from the inception of the case in this court and must abide by the consequence that may be reached upon the consideration of the brief filed by the appellant – See Agagu v. Dawodu (1990) 7 NWLR (Pt.160) 56; Ebenezer Nwokoro & Ors v. Titus Onuma (1990) 3 NWLR (Pt.136) 22 at 32 and Patrick Okoye v. Nwulu (1988) 2 NWLR (Pt.76) 359.

Learned counsel for the appellant submitted that res judicata should not apply to the action instituted in Lagos. He postulated that for res judicata to apply, the cause of action in the instant case must be same as in the previous case relied upon as a bar to the present action. He pointed out that the plaintiff’s action in Germany was based on the contract dated 14th March, 1980 and that in the suit before the Lagos High Court, the amount claimed, though from the same contract, was not covered by the claims in Germany; and also that in the action in Lagos, the plaintiff claimed on quantum meruit which is a claim in quasi contract.

Learned counsel for the appellant went further to submit that a claim made on quantum meruit is not based on the contract. It is independent of the original contract between the parties but that it is imposed by law so that the defendant would not disappoint the plaintiff and is obliged to pay reasonable remuneration for the work done by the plaintiff so that he is not deprived of the fruit of his labour. He pointed to the observation in Chesire & Fifoot (11th Edition) 650 which reads:-