Chief F.S. Yesufu & Anor V. Kupper International N.V (1996)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

The plaintiff’s claim against the defendants jointly and severally as contained in paragraph 35 of the Statement of Claim was for the sum of N685,750.00 representing the expenses incurred and services rendered for and on behalf of the defendants at the defendants’ request at Benin City in respect of the Ikpoba Dam Hotel and Afuze-Urha-Otu and Ekperi-fugar Roads during the period January 1977 to May 1979.

There was an alternative claim which was for an account of all money received by the defendants in respect of the two projects and payment to the plaintiff of any amount found due to it after such account.

Pleadings were duly filed and exchanged by the parties. The case then proceeded to trial. At the trial five witnesses testified on behalf of the plaintiff while only the 1st defendant testified for himself and on behalf of the 2nd defendant.

Briefly stated the facts of the case are that the plaintiff, a foreign company, was awarded two contracts by the government of the defunct Bendel State in 1977 for the construction of Ikpoba Dam Hotel, Benin City, and Afuze-Urna-Otuo Road respectively. The plaintiff, in compliance with the government’s directive invited the 1st defendant to join him in the execution of the two contracts. The 1st defendant agreed and their business relationship culminated in the formation of a partnership and the subsequent incorporation of the 2nd defendant by the plaintiff and the 1st defendant. The technical designs, civil engineers, land surveyors, survey equipments and some personnel for the projects were among the inputs provided by the plaintiff. The Ikpoba Dam Hotel Company Ltd was also incorporated by the Government to finance the Ikpoba Dam Hotel project.

The execution of the projects seriously and progressively got underway when a serious disagreement developed between the partners which necessitated a meeting with the government. The minutes of that meeting Exhibit 14, showed that the partnership between the parties was mutually dissolved, because while the 1st defendant first gave an indication of the dissolution the plaintiff was agreeable to same. Exhibit 14 also showed that the 1st defendant at the meeting undertook to settle all genuine claims submitted by the plaintiff. When the plaintiff submitted its claims to the defendants, the 1st defendant refused to settle same, saying that they were not authorised by the defendants and the plaintiff then instituted this action.

In his judgment the learned trial Judge non-suited the plaintiff when he concluded on page 97 of the record as follows:-

“To dismiss the action is to deny the plaintiff’s any other opportunity to have a redress in a court of law, and having been convinced that they actually incurred expenses they should not be shut out of the court. I hereby order a non-suit in the case and there will be no order as to costs.”

Both sides were dissatisfied with the judgment of the High Court and both appealed against same to the Court of Appeal. The plaintiff contended that judgment should have been entered for it while the defendant urged the Court of Appeal to set aside the order of non-suit and enter one of dismissal of plaintiff’s claim.

At the hearing of the two appeals it was discovered that the defendants who were absent and not represented neither filed a brief of argument in respect of their own appeal nor filed one in reply to the plaintiff’s appeal. Having satisfied itself that the defendants had notice of hearing of the appeals, the Court of Appeal proceeded to dismiss defendants appeal as having been abandoned. It then heard plaintiff’s counsel on the plaintiff’s appeal and reserved judgment thereafter.

The Court of Appeal in its judgment unanimously allowed the plaintiff’s appeal. It set aside the order of non-suit made by the learned trial Judge and entered judgment for the plaintiff in the sum of N685,750.00 with costs.

Aggrieved by the decision of the Court of Appeal the defendants, hereinafter referred to as the appellants, have now appealed to this court. The plaintiff will be referred to as the respondent from now on.

The parties filed and exchanged briefs of argument in accordance with the rules of court. Dr. Enemeri, learned counsel for the appellants in his brief submitted the following issues for determination in the appeal:

“(i) Whether the claim in quasi-contract for money paid or expenses incurred on behalf of the appellants at their own request was properly allowed by the Court of Appeal (vacating the order of non-suit) having regard to the primary finding of fact by the trial court against which there was no appeal.