Augustine Ikem V. Vidah Packaging Ltd. & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 282/2007 by the Anambra State High Court (hereafter simply referred to as the “lower court”) presided over by Hon. Justice J.C. Nwadi (hereafter simply referred to as “the learned trial Judge”). The lower court entered judgment in favour of the Plaintiffs (hereafter referred to as “the Respondents”) in the case, and also dismissed the counter-claim of the Defendant (hereafter referred to as “the Appellant”) filed in the action, for want of substance and merit being nothing but an exercise in futility.

The Respondents initiated an action against the Appellant claiming the sum of N2,400,000.00 “being the balance unpaid of the sum the defendant admitted in writing that he owes the plaintiffs”. The Respondents also claimed interest of 5o/o on the sum, from the date of judgment until the entire debt is fully liquidated. The Respondents initially commenced the case under the undefended list procedure of the Civil Procedure Rules of the lower court. However the suit was on 6/5/2004 transferred to the general cause list for hearing and determination on the merit.

The case set up by the Respondents in their Statement of Claim dated 3/6/2004 and filed on the same date, put briefly, is that at the invitation of the Appellant, the 2nd Respondent upon conditions specified by him, entered into a joint venture with the Appellant in the Appellant’s business involving the importation of kits for diagnosis of HIV/AIDS, pregnancy, syphilis and hepatitis B. After placing two importation orders (solely financed by the 2nd Respondent) in respect of kits/items in December, 2001 and April, 2002 respectively, there was a disagreement between the parties concerning the accounting system employed by the Appellant and which resulted in unexplained loss of money to the Respondents’ detriment. The Respondents were compelled to institute two separate actions against the Appellant in the High Court, as the report of the matter made by the 2nd Respondent to the head of the Enwezor family failed to resolve the matter. While the suits were pending, the 2nd Respondent also made a report to the Police.

This eventually resulted in the Appellant being charged before the Chief Magistrate’s Court. The Appellant was arrested and released on bail to one Eselu Bosah who along with others requested the Police to give them time to enable parties settle the matter amicably. A settlement meeting was later held in the presence of members of the families and friends of both parties together with the parties themselves. At the meeting, the Appellant accepted owing the Respondents the sum of N3,400,000.00.

The 2nd Respondent was prevailed upon to accept the sum the Appellant admitted owing the 2nd Respondent in full and final settlement of all the monies due to him from the Appellant and the 2nd Respondent so accepted. Consequent to the settlement, the Appellant on 20/5/2003 at the Police Headquarters, Awka, made a statement admitting his indebtedness to the Respondents in the sum of N3,400,000.00 and followed this up by paying to the 2nd Respondent at the Police Station the sum of N1,000,000.00 in cash with a written promise to pay the balance of N2,400,000.00 in installments. That the 2nd Respondent later instructed his solicitor to discontinue the two civil cases instituted against the Appellant in the High Court consequent to the advice by the said solicitor that it was unnecessary to continue to litigate the civil cases and criminal charge at the Magistrate’s court in view of the payment of N1,000,000.00 made by the Appellant. The Respondents said that in spite of the promise of the Appellant to make final payment by 31/7/2003, he has failed to make any further payment.

In his Statement of Defence and Counter-Claim dated 12/7/2004 and filed on the same date, the Appellant denied the circumstances pleaded by the Respondents as to how the joint venture between them came to be. The Appellant alleged that the 2nd Respondent had been envious of his success in his business and that the 2nd Respondent had conceived a scheme to take over the business from him. The Appellant not only disclosed that it was long after the 2nd Respondent had commenced an action in court that he deemed it fit to report the matter to the Enwezor family, but also alleged that the arbitration to which he and the 2nd Respondent submitted, was the one undertaken by the firm of Iroh Godson & Co. a firm of Chartered Accountants. He also denied ever admitting that he owed the Respondents as they have claimed or at all as the Police are not debt collectors. The Appellant said that it was five months after the Respondents had commenced an action in court that he decided to go to the Police to report a purely civil action.

The Appellant alleged that his arrest by the Police was a scheme hatched by the 2nd Respondent and the Asst. Commissioner State C.I.D. to intimidate and extract money from him. That he was detained for five days at the State C.I.D. and asked to bring N1,000,000.00 otherwise he would not be released and that given his age and state of health which made him to fear for his life, he had to write the statement dictated to him by the I.P.O. That he never admitted any liability to the Respondents in his first statement to the Police. That it was after his lawyer confronted the Asst. Commissioner State C.I.D., that the Police panicked and charged him to court for stealing the sum of N2.4 million belonging to the 2nd Respondent based on a transaction involving test kits. The Appellant denied reaching any agreement with the 2nd Respondent or any other person and that he was relying on the arbitration report of the chartered accountant. In his counter-claim, the Appellant having pleaded his adoption of the averments in the Statement of Defence claimed for: (i) return of N1 million in the custody of the Police from the Respondents as special damages; and (ii) general, exemplary and punitive damages of N10 million from the Respondents for wrongful arrest, false imprisonment and inhuman and degrading treatment.

The Respondents filed a Reply and Defence to Counter-Claim. Therein they joined issues with the Appellants on all the new issues he brought up in his Statement of Defence and Counter-Claim.

As earlier stated the lower court gave judgment in favour of the Respondents and dismissed the counter-claim of the Appellant. The Appellants being dissatisfied with the judgment of the lower court appealed against the same by a Notice of Appeal dated 5/3/2007 and filed on 6/3/2007. The Notice of Appeal contains four grounds of appeal. The grounds, shorn of their respective particulars read thus:-

“GROUNDS OF APPEAL

i) ERROR IN LAW

The learned trial judge erred in law when he held as follows; “Exhibit “O” was made by the defendant based on customary arbitration of the parties (sic) kinsgmen (sic)”.

ii) ERROR IN LAW