Dangote Cement Plc V. Ekeson Salins Oil & Gas Limited & Ors (2003)

LawGlobal-Hub Lead Judgment Report

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. 

This is an appeal against the judgment of the High Court of Anambra State delivered in suit no. 0/9/2018 on 17/7/2018 by Honourable Justice M. N. O. Okonkwo. The facts of this case as  garnered from the record of appeal is that a vehicle which the respondents herein alleged to be the appellant’s vehicle  was involved in an accident in Cross-River State with the 1st respondent’s vehicle.

The respondents instituted suit no. HK/10/2017 in the High Court of Cross-River State, Akampa Judicial Division and claimed a sum of N527,000,000.00 (Five Hundred and Twenty-Seven Million Naira) being special and general damages for the loss of the 3rd and 4th respondents’ brothers, cost of the 1st respondent’s Mack Truck with registration no. ENU 537 XP and other reliefs. Pursuant to the agreement of both parties to settle the matter, terms of settlement signed by both parties was filed in the Court. According to the record of proceedings of the High Court Cross- of River State on page 27 of the record of appeal, the terms of settlement which was given suit no. HK/MSC8/2017 and dated 13/9/2017 was filed on 15/9/2019.

On 25/10/2017 when the suit came up before the Honourable Justice Akon Ikpeme, the appellant’s counsel informed the Court that terms of settlement had been filed but that certain clarifications needed to be made concerning the terms of settlement. On 16/12/2017 when the suit came up again in Court, the appellant’s counsel applied to withdraw the terms of settlement on the ground that the appellant had discovered fresh facts that substantially changed the liability and propriety of the joinder of the appellant in the suit.

The respondents’ counsel opposed the application to withdraw the terms of settlement. The Court ruled in favour of the appellant and struck out the terms of settlement. Before that day, the appellant had filed a motion on notice on 7/11/2017 seeking an order to strike out the names of the appellant and 2nd defendant sued as ”Unknown Driver of 1st Defendant” from the suit for being wrongly sued.

In paragraph 7 of the affidavit in support of that application, the appellant stated that:

”When the matter was brought before the Recovery Unit of the 1st defendant in the course of processing the settlement payment. It was discovered that the vehicle in question does not belong to the 1st defendant as it does not form part of the fleet of tankers owned by the 1st defendant on record. Annexed hereto as EXHIBIT DAN 1 is the list of all the tankers belonging to the 1st defendant on record.”

There was no response by the respondents to the motion. On 24/1/2018 when the suit came up in Court, the respondents’ counsel applied to withdraw the suit on the ground that the parties have reached an agreement which they, that is the respondents wanted to enforce. The appellant’s counsel did not oppose the application but expressed reservations about the reason given for the withdrawal.

He stated that the real reason for the withdrawal of the suit was that the appellant filed a motion challenging its joinder in the suit. The Court granted the application to withdraw the suit and struck it out. Before that day, the respondents had filed the originating summons with suit no. O/09/2018 in the High Court of Anambra State, Onitsha Judicial Division on 16/1/2018. The respondents sought the determination of the following questions:
1. Whether the failure of the defendant to comply with the clear and unambiguous terms of settlement agreement between it and the plaintiffs amount to a breach of contract?
2. Whether the plaintiffs are entitled to the reliefs they are seeking?

They sought the following reliefs:
1. A DECLARATION that pursuant to the ”Terms of Settlement” agreement dated the 13th day of September, 2017 between the plaintiffs and defendant, the defendant is bound by the terms of the said settlement agreement.

2. AN ORDER compelling or directing the defendants to forthwith honour the said terms of settlement agreement by paying the plaintiffs  the sum of N6,000,000.00.

3. GENERAL DAMAGES in the sum of N500,000,000 (Five Hundred Million Naira) only.

4. N10,000,000 (Ten Million Naira) as cost of legal fees/cost of the present litigation.

5. 35% interest per annum (or prevailing CBN interest rate) of the judgment sum from date of delivery of judgment until final liquidation of the judgment sum.