Julius Berger Nigeria Plc & Anor V. Toki Rainbow Community Bank Ltd (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

This appeal is from the decision of the High Court of Rivers State delivered on the 21/12/05 in suit NO. PHC/1070/99. The decision was that judgment was entered for the Respondent (as Plaintiff) against the Appellant (as 3rd and 4th Defendants) as per Plaintiffs’ claim against them as stated in paragraph 19 (1) – (7) of the Plaintiff’s amended statement of claim of 17th March, 2000″. The claims on the paragraph which appear at pages 52 – 53 of the printed record of appeal are as follows:-

“19. Wherefore the plaintiff claims from the defendants jointly and severally as follows:

1. The sum of N1, 900, 800.00 due and payable to the plaintiff by the 4th defendant on 9th April 1997 following the assignment by the 2nd defendant of the benefit of the contract between the 2nd defendant and the 4th defendant to the plaintiff.
2. Interest at the rate of 21% per annum for month, that is to say, 26th March to 26th May 19 on the sum of N960, 000.00 drawn by the 2nd defendant from the said loan, and at the rate of 10% per month from 27th May 2997 until judgment.
3. Interest on the judgment debt at the rate of 10% per annum from judgment until payment.
4. N2, 335, 000.00 due to the plaintiff by reason of the assignment by the 2nd defendant to the plaintiff of the benefit of its contract with the 4th defendant a per Local Purchase Order No. 48303 dated 2nd May 1997.
5. Interest on the said sum at the rate of 10% per month from 30th June 1997 until judgment.
6. Interest on the judgment debt at the rate of 10% per annum form the date of judgment until payment.
7. In the alternative, against the 1st and 3rd defendant the said sum of N2, 335, 000.00 with interest thereon as above being damage suffered by the plaintiff as a result of the fraudulent misrepresentation by the 1st and 3rd defendants to the plaintiff which was intended to be acted upon by the plaintiff and was infact acted upon by the plaintiff to its detriment.”

My reading of the facts as contained in the record of appeal from which the above claims were made can be summarized thus: That the 1st Appellant had issued two separate Local Purchase Orders (LPOs) to Pit -a-pat International Nigeria Ltd (the 2nd Defendant in the High court) for the supply of plastic jute bags and Haulage land off loading of 5/15m Aggregate from Isioqu Quarry to PHC respectively. To enable it meet and satisfy the LPO’s Pit-a-Pat International Nigeria Limited (to be called the company hereinafter) sought for and obtained money or loan from the Respondent to which the payments for the LPOs due to the company from the 1st Appellant were said to have been assigned. On the ground that the money taken on loan by the company was not paid back or repaid through the payment by the 1st Appellant, the Respondent took out the writ of summons against the Appellants as well as the company and its managing Director one Peter Morkah with the above claims as amended endorsement thereto. It is worthy of mention that the company and its managing Director did not file a statement of defence to the Respondents’ claim and so did not defend the action against them. The claims were made jointly and severally against all the four (4) Defendants set out in the writ of summons and the amended statement of claim by the Respondent. On their part, the Appellants had in paragraph 13 of the statement of defence dated 24/9/99 raised a preliminary Objection to the claims against them on the following two (2) grounds:

“(a) No privity of contract between the plaintiff and them, and

(b) That the 3rd defendant being an employee of the 4th Defendant to the knowledge of the Plaintiff is an agent of a disclosed principal.”

The objection was taken after the hearing of evidence in the case and dismissed in the judgment appealed against.

Being dissatisfied with the decision of the High Court, a Notice of Appeal against same was filed on the 16/1/06 by the learned counsel for the Appellants. The Notice of Appeal was with the leave of the court amended by way of additional grounds to increase the grounds of appeal to thirteen (13).

Briefs of argument were filed by learned counsel for the parties to the appeal as follows; the Appellant brief was dated and filed in the 28/11/07. The Respondents’ brief filed on 23/9/08 was deemed properly filed on the 9/2/09 while the Appellants Reply brief was filed on the 19/2/09. The briefs were adopted and relied on by the learned counsel as their respective submissions in support of their position at the hearing of the appeal on the 4/5/09.

From the thirteen (13) grounds of appeal, the following issues were formulated by the learned counsel for Appellants at page 2-3 of the Appellants’ brief:

1. Whether the trial court was right to refuse to grant the preliminary objection raised by the 3rd and 4th defendants now appellants in paragraph 29 of the further amended statement of defence No. 2 dated the 19th April 2005.
2. Whether the respondent proved before the trial court that is customer Pit-a-Pat International Nig. Ltd, the 2nd defendant was indebted to it.
3. Having regard to the evidence before the lower court whether the respondent established that there was an assignment of the proceeds of the contract to it and whether the condition for domiciliation was not a mere security for the loans and the instructions of the 2nd defendant a mere mandate or authority to pay.
4. Whether the trial court was right to hold the appellants liable to pay the costs of the two loans to the respondent.
5. Whether the lower court was right to hold that there was a domiciliation of the contracts proceeds which amounted to a legal assignment.
6. Whether the lower court was right to hold that the appellants failed to plead facts relating to exhibit “L”
7. Whether the lower court was right to grant both the main claims/reliefs and the alternative claim in respect of the 2nd contract/loan at the same time.
8. Whether the trial court was right to hold that the 3rd defendant/2nd appellant made fraudulent misrepresentation that influenced the respondent to grant the 2nd loan to Pit-a-Pat International Limited.
9. Whether the trial court was right to hold that the cheque exhibit F5 was paid by the 2nd defendant in fulfillment of a condition for the grant of the 2nd loan.

In his arguments of the above issues learned counsel had indicated that issue NO.1was distilled from grounds 3 and 6, issues 2 and 9 from grounds 5, 8, 9 and 12, issues 3 and 5 from grounds 1, 2, 4, 5 and 6 issue 4 from grounds 1, 4 and 7, issue 6 from ground 8, issue 7 from ground 11 and issue 8 from ground 10. This shows that more than one issue were raised from each of grounds 1, 4 and 6 against established and permitted practice in law. Formulation of more than one (1) issue from a single ground of appeal is proliferating the issues which leads to repetition of arguments on simple points that in turn very often obsucate the real issues that require determination in an appeal Proliferation of issues only leads to round about submissions on otherwise straight forward issues and tend to make the reading and appreciation of the points canvassed therein cumbersome. It adds no value whatsoever to the viability and efficiency of the issues so proliferated and that is one good reason Why the court have always deprecated the practice. See CLAY IND. (NIG.) LTD V AINA (1997) 8 NWLR (516) 208; ONYEM AIZU V. OJIAKO (2000) 6 NWLR (659) 25.

For the Respondent two (2) issues were submitted for determination in the appeal at page 2 of the Respondents’ brief of argument. They are:-

(1) Was the court below right in holding that Pit-a-Pat International (Nigeria) Limited assigned the benefit of its two contract with the 1st appellant to the respondent? 1, 2, 6, 7 & 8

(2) Was the court below right in finding that tie 2nd appellant made fraudulent representation to the respondent which induced it to give the second loan to Pit-a-Pat International (Nigeria) Limited to its detriment? 3 & 4.