Fairline Pharmaceutical Industries Ltd & Anor V. Trust Adjusters Nigeria Ltd (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A.: (Delivering the Leading Judgment)

This appeal is against the judgment of N.C. Oni; J of the Abia State High Court delivered on the 15th day of March, 2006.

The Respondent as Plaintiff at the court below, had taken out a Writ of Summons against the Appellants, as Defendants, where by paragraphs 23 of the Statement of Claim, the Respondent claimed as follows:

“23. Wherefore the Plaintiff claims against the Defendant jointly and severely.

1. (i) a declaration that based on the Consultancy Agreement between the 1st Defendant and the Plaintiff, the Plaintiff identified that a total sum of N19,850,245.24 (Nineteen million, eight hundred and fifty thousand, two hundred and forty-five naira, twenty four kobo) representing excess charges which were wrongly imposed on the 1st Defendant’s Account operated in First Bank of Nigeria Plc, Aba main Branch by the said First Bank of Nigeria Plc.

(ii) a declaration that based on the Consultancy Agreement between the Plaintiff and the 1st Defendant, the Plaintiff is entitled to 25% of the identified excess interest or other charges with a monthly interest of 2% per month until the due sum is fully paid.

(iii) A declaration that under the said Agreement the Plaintiff became entitled to 25% of the total amount identified and presented to the First Bank of Nigeria Plc with interest at the rate of 2% per month upon the termination of the said Agreement by the f Defendant in his letter dated 28th June, 2001.

2. The sum of N7,591,271.11 (Seven million, Five hundred and Ninety-one thousand two hundred and Seventy-one naira Eleven kobo) representing the principal earning due to the Plaintiff and interest thereon based on the Agreement and the identified sum up to the 18th day of September, 2001 and thereafter, interest on the principal sum and accrued interest at the rate of 2% per month.

The parties filed and exchanged pleadings at the court below. The Respondent’s (Plaintiff’s) case as revealed in the Statement of Claim is that, by a consultancy services Agreement dated the 2409/1999, the 1st Appellant under the hand of the 2nd Appellant contracted the Plaintiff/Respondent to undertake the Banking Operations Review (BOR) of the 1st Defendant/Appellant’s bank account with the First Bank of Nigeria Plc, Aba (Main) Branch with a view to identifying and recovering a number of its banking transactions with the bank, which included excess bank charges or COT, Overdraft (O.D.), equipment leasing, foreign currency balances still held by Nigerian or Foreign correspondent banks arising from offshore interest etc. That the Respondent was to tender the services for a period of five years or as may be extended by the Appellants.

The services rendered by the Respondent was to attract a consultancy fee of 25% of the total amount recovered from the bank, and which amount was to be paid upon demand within five days, failure of the Appellants to pay would attract an interest of 2% per month on the principal amount due, until the whole sum is liquidated. It was also the Respondent’s case that, in the event of the Defendants/Appellants terminating the Agreement without its written consent, the Defendants/Appellants would immediately become liable to pay to it 25% of the amount identified and presented to the bank before or at the time of termination.

It was also the case of the Plaintiff/Respondent that, it commenced work in line with the agreement after it had obtained the 1st Defendant/Appellant’s Statement of Account with the First Bank of Nig. Plc with the Aba (Main) Branch, from the 2nd Defendant/Appellant. That it uncovered excess charges on COT, VAT, OD, Excess debit on loan repayment and interest on term loan, which he made into a 92 paged brochure dated 17/8/2000, which he submitted to the bank, and that the bank acknowledged receipt of the report, and assured the Respondent that its inspectors were carrying out indepth investigation into the claims with a view to reconciling same with the report. That in the course of the investigation, a series of correspondences passed between it and the bank, and that in the course of those correspondences, it received a telephone call from the First Bank requesting for a meeting between the Respondent, the Appellants and officers of the bank to conclude the issue of the excess charges, and to arrange for payment to the 1st Appellant by the bank.

That upon becoming aware of this development, the Appellants on the 06/7/2001, served on the Respondent a letter dated 28/6/2001, unilaterally terminating the Consultancy Agreement without the prior notice of the Respondent. That it was disappointed by the Appellants action, whereof it demanded from the Appellants vide a letter dated 20/07/2001, the immediate payment of its entitlement in accordance with the terms of the contract. That it also wrote the Appellants another demand letter through its solicitors, but the Appellants replied, denying liability.

The Defendants/Appellants’ also filed a statement of defence, denying liability and alleged that the contract was illegal, unenforceable, contrary to public policy and therefore null and void. They further claimed that the Consultancy Agreement contemplated not only identification and presentation of the excess charges, but recovery of same as well. However, at the trial, the Defendants/Appellants did not call any evidence in support of their defence, but elected to rest their case on that of the Plaintiff/Respondent. Written Addresses were filed and exchanged, and the learned trial judge in a well considered judgment delivered on the 15/3/2006, gave judgment to the Plaintiff/Respondent upon his claim. The Defendants/Appellants are displeased by the judgment of the lower court and have now filed this appeal.

The Notice of Appeal consisting of eleven (11) Grounds of Appeal was dated the 26/5/2006 and filed the same day. I hereunder reproduce the Grounds of Appeal, without their particulars:

1. The learned trial judge erred in law in entering judgment in favour of the Plaintiff who did not establish its juristic personality.
2. The learned trial judge erred in law when she held that paragraph 1 of the statement of defence was a mere general denial and evasive.
3. The learned trial judge erred in law in entering judgment against the 2nd defendant.
4. The learned trial judge erred in law in entering judgment in favour of the Plaintiff when the claim was confused, at variance with the pleadings and starved of vital information.
5. The learned trial judge erred in law when it entered judgment in favour of the plaintiff on the basis of claim before the court.
6. The learned trial court erred in law in entering judgment against the Defendants when the Plaintiff did not discharge the burden placed on it by law.
7. The learned trial judge erred in law and caused a miscarriage of justice by refusing to consider and resolve the fundamental issue raised by the Appellants.
8. The learned trial judge erred in law in failing to hold that the Plaintiff did not prove its case in spite of the failure of the Appellants to testify.
9. The judgment is against the weight of evidence.
10. The learned trial judge erred in law and caused a grave miscarriage of justice when she held as follows:

“Further in their denial of the identification and presentation to the bank of the said sum of N19,850,245.24, defendants submitted that Exhibit “C” on which the claim is founded is worthless, having been prepared before plaintiff formally was allowed access to the relevant bank records. The uncontradicted evidence before court with regards to this particular submission as given by the PW1 is that the moment plaintiff was commissioned to undertake the consultancy service in September, 1999, they entered into the bank’s record/statement secretly through the 2nd defendant from whom they received all the documents they needed in order to avoid the banks becoming aware of the exercise at that early stage. It is the evidence of the P.W.1 that the information gathered at that stage might take them to investigate the matter without the bank’s knowledge as the exercise was sort of research work on any item suspected to have been in excess of the charge. They then analyze these findings and produce a report. After compiling their report, they now ask their client to introduce them formally to the bank, According to PW1, that was the reason for the Report having an earlier date than the letter of introduction. Although this piece of evidence was elicited under reexamination of the witness, there was no challenge to it.

In the face of the evidence therefore, it is my view that the submission by the defendants that Exhibit “C” is worthless is untenable, as there is no evidence led by them to discredit or show what made the document worthless.”