Imperial Homes Mortgage Bank V. D-var Consulting Limited (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the Lagos State High Court delivered on the 18th day of March, 2015 by HON. JUSTICE O. A. TAIWO. The Appellant had filed an application at the lower Court praying the Honourable Court to strike out in limine the Respondent’s action on the ground that it does not disclose any reasonable cause of action.

The Court however dismissed the Appellant’s application and awarded costs in favour of the Respondent. The Appellant dissatisfied with the said ruling has now filed an Amended Notice of Appeal dated 19th of March, 2015 setting out 3 grounds of appeal.

The Appellants brief of Arguments dated 25th May, 2015 was filed on same day and adopted on the 15th of March, 2016. The Respondent’s brief dated 1/07/15 also filed on the same day was adopted on the 15th of March, 2016. The Appellant formulated 3 issues for determination as follows:

1. Whether the High Court of Lagos State per Taiwo, J. was right in holding that the statement of Claim discloses a reasonable cause of action.?
2. Whether the High Court of Lagos

State per Taiwo, J. was right in holding that the Statement of Claim disclosed a binding contract.

3. Whether in view of the clear provisions of Order 22 Rules 1?and 2 of the High Court of Lagos State (Civil Procedure) Rules 2012, the costs awarded against the Appellant is justifiable at law.

The Respondent formulated 2 issues for determination namely:

1. Whether Hon. Justice O.A. Taiwo of the High Court of Lagos State was right in holding that the Respondent has a reasonable cause of action and that the duty of the Court in the instant suit will be to determine the intention of the parties by construing the surrounding circumstances including all written agreement, emails and oral statement.
2. Whether Hon. Justice O. A. Taiwo of the High Court of Lagos State was right in exercising his discretionary power by awarding cost of Ten thousand Naira (N10,000.00) in favour off the Respondent.

A total of 5 issues was formulated by both sides though the Appellant argued its issues 1 and 2 together. For a proper determination of the complaint of the Appellant the issues it formulated shall be adopted by the

Court as issues for determination.

ISSUE 1 AND 2

Being that the Respondent’s action at the lower Court is based on the breach of an alleged contract, the Appellant submitted that the Respondent failed to establish by its pleadings or any frontloaded document that there exists an alleged contract between the Respondent and the Appellant. That the Respondent’s letter dated June 13, 2011 is not a contract but merely a proposal which outlines the services the Respondent intends to render and how those services will be billed, referred to BEST (NIG) LTD V BH (NIG) LTD (2011) 5 NWLR (PT 1239) 95. The Appellant further stated that even if it was true as held by the Trial Court that the Confidentiality Agreement made the proposal letter binding, the lower Court had failed in its responsibility to examine the proposal letter along the claim to determine if the “Total Contract sum” as stated in the claim had been entered into, referred to FRN v DARIYE (2011) 13 NWLR (PT 1265) 521, LAGOS STATE GOVERNMENT v TOLUWASE (2013) 1 NWLR (PT 1336) 555. In essence, the Appellant submitted that the Court erred in law in holding that the Respondent’s

statement of claim discloses both a reasonable cause of action and a binding contract, referred to the following cases:?ATOLAGBE v SHORUN (1985) NWLR (PT 2) 8 – 9 (sic), ARIJE v ARIJE (2011) 13 NWLR (PT 1264) 265 @ 291, BURAIMOH OLORIODE v SIMEON OYESI (1984) LPELR – SC. 46 / 1982, IBRAHIM V OSIM (1988) 1 NSCC 1184 @ 1197, OJUKWU V YAR’ADUA (2009) 12 NWLR (PT 1154) 50, SHELL BP V ONASANYA (1976) ALL NLR 338 @ 341.

In reply, the Respondent submitted that from the averments in its statement of claim, there exist sufficient facts giving right to the Respondent to institute the suit at the trial Court. It was also submitted that the Respondent had averred the wrongful act of the Appellant which gave rise to the Respondent’s right of action and the damage caused thereby. That it is a settled principle of law that evidence cannot be led at the preliminary stage of proceedings when a point of law is being raised. The Respondent therefore submitted that the lower Court was right in holding that the Respondent has a reasonable cause of action and the duty of the Court is to determine the intention of parties by construing all surrounding circumstances, relied

on OJUKWU V YAR’ADUA (2009) ALL FWLR (PT 482) 1119 – 1120, EGBE V ADEFARASIN (1987) 1 NWLR (PT 47) 1, NISSAN (NIG) LTD V YOGANATHAN (2009) ALL FWLR (PT 494) 1600, CENTRAL BANK v MANEPORT S. A. & ORS (1987) 1 NWLR (PT 47) 86.

RESOLUTION: