Akinwunmi O. Alade V Alic (Nigeria) Limited & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C

The Appellant as Plaintiff sued the Respondents as Defendants jointly and /or severally at Oyo State High Court, Ibadan claiming as follows:

“The sum of N3,296,528.08 (Three Million, two hundred and Ninety-six thousand five hundred and twenty eight Naira eight kobo) as particularized hereunder being damages suffered as a result of the 1st defendant’s breach about March, 1988 of partnership agreement entered into in Ibadan between the Plaintiff and the 1st defendant on 1st July, 1987, and which breach was masterminded, procured and instigated by the 2nd defendant as agent of the 1st defendant in fraud (sic) of the plaintiff.”

In proof of his case, the Appellant called four witnesses and testifying himself as the fifth witness. He tendered six exhibits that is, Exhibits “P1 – P6.” On the other hand the Respondents, in defence of the suit, called three witnesses. The 2nd Respondent testified as the 4th witness Three Exhibits, D1-D3 were also tendered.

At the end of the trial the learned trial Judge entered judgment in favour of the Appellant and against the Respondents jointly and severally for:-

1. The refund of loan capital of N240,000.00 procured for the 1st defendant and guaranteed by the Plaintiff through Marine and General Insurance Company Limited.
2. The sum of N70,000.00 (Seventy thousand naira) being the Plaintiff’s 40% agreed share of profits on business transacted with Kopek Limited between 1st December, 1987 to 18th February, 1988.
3. 10% compound interest per annum on the N240 000.00 loan obtained from IBWA from 1988 up till today 10th June, 1991 and 5% interest thereafter until the total sum is paid.
4. Claim for damage is dismissed.”

The counter claim of the respondents was dismissed.

The respondents being dissatisfied with this judgment, appealed against same to the Court of Appeal, Ibadan Division on eight grounds.

The Court of Appeal in a unanimous decision set aside judgment of the trial Court and dismissed the Appellant’s claims.

The Appellant was not satisfied; he has come on further appeal to this Court on three grounds. The parties have through their Counsel filed and exchanged their briefs of argument. In the Appellant’s brief of argument prepared by Babatunde Kasunmu Esq., the following two issues were formulated for determination:

“1. Was the Court of Appeal right in dismissing the appellant’s claim against the Respondents

(a) having earlier held, that the Plaintiff’s claim in special damages for loss of profit was particularised and proved and

(b) having allowed the respondent’s appeal in part by virtue of (a) above,

2. Whether the Respondents, can be held jointly and severally liable for damages occasioned as a result of a breach (fraudulent or otherwise) of the partnership agreement between the Appellant and the 1st Respondent”

On behalf of the Respondents Omokayode A. Dada Esq. formulated the following three issues for determination in the Respondents brief filed on 22nd October, 2009.

1. Whether having regards to the fact that the Court of Appeal allowed the appeal in part, it was right for the appellant’s claims to be dismissed in its entirety (Ground 1 of the Notice of Appeal)
2. Whether the Court of Appeal was justified in law in holding that the Appellant did not prove beyond reasonable doubt allegation of fraud against the 2nd Respondent (Ground 2 of the Notice of Appeal)
3. Whether the Respondents can be held liable jointly and severally for damages allegedly suffered by the Appellant arising out of breach of Partnership agreement between the Appellant and the 1st Respondent’ (Ground 3 of the Notice of Appeal)

Let it be noted that the learned counsel for the Appellant having been served with the Respondent’s brief, went further to file a reply brief