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IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

ON THE 9TH DAY OF FEBRUARY 2016 SUIT NO. FCT/HC/CV/606/14

BEFORE HIS LORDSHIP:

HONOURABLE JUSTICE FOLASADE OJO – JUDGE

BETWEEN:

AYOKA COMPANY LTD PLAINTIFF

AND

FIRST CITY MONUMENT BANK PLC DEFENDANT

JUDGMENT

The plaintiff’s claim as contained in the writ of summons and

statement of claim is as follows:

“1. The outstanding balance of N3,627,533.45 (Three Million,

Six Hundred and Twenty Seven Thousand, Five Hundred

and Thirty Three Naira, Forty Five Kobo, of the invoiced

sum of N22,441,171.50 (Twenty Two Million, Four Hundred

and Forty One Thousand, One Hundred and Seventy One

Naira, Fifty Kobo), only) being the agreed fee payable to

the Plaintiff for the recovery of the sum of N166,230,900.00

received by the Defendant from the Energy Commission.

2. The sum of N38,174,631.75 (Thirty Eight Million, One

Hundred and Seventy Four Thousand, Six Hundred and

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Thirty One Naira, Seventy Five Kobo), being the agreed

13.5% of the recovered sum of N282,775,050.00 from

Energy Commission, due and owing the Plaintiff by the

Defendant.

3. The sum of N32,993,127.56) being the agreed fee payable

to the Plaintiff for the recovery of the sum of

N244,393,537.50 received by the Defendant from the Federal

Ministry of Lands and Urban Development.

4. N50 million being General Damages.

5. Interest on the above sums calculated at the rate of 10%

from the date of judgment until the final liquidation of the

judgment sum.

6. Cost of this action.”

The defendant with leave of Court entered appearance and filed a

statement of defence to which the plaintiff filed a reply. The suit went on

to trial. One Oluwakayode Olubiyi, the managing director and Chief

Executive officer of the plaintiff testified as P.W.1 on behalf of the plaintiff

while one Margaret Agi gave evidence on behalf of the defendant bank as

D.W.2. Both witnesses were cross examined by counsel representing

opposing parties.

At the close of evidence on both sides, counsel filed their respective

written addresses. Learned counsel to the defendant filed a defendant’s

final written address as well as a reply on points of law which he

adopted as his final oral submissions in support of the case of the

defendant. Plaintiff’s counsel filed a plaintiff’s final written address which he

adopted as his final oral submission in support of the plaintiff’s case.

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P.W.1 adopted his two witness statements on oath filed on 13/2/14

and 7/7/14 as his oral testimony.

A summary of the plaintiff’s case as borne out by the testimony of

P.W.1 is as follows:

That the plaintiff is a general contractor and debt recovery agent

who was by a letter dated 30/1/13, Exhibit 1 engaged by the defendant

who carries on banking business to recover various outstanding debts

owed her by some of her customers. The customers had been granted

credit facilities to execute jobs at Energy Commission of Nigeria, Federal

Ministry of Environment (Abuja), Federal Ministry of Lands, Housing and

Urban Development etc. Pursuant to a mutual review, parties agreed that

only accounts stipulated in another letter dated 26/4/13 written by the

defendant should be proceeded against by the plaintiff. The relevant

Ministries and parastatals were notified of the plaintiff’s appointment. It is

P.W.1’s evidence that the parties had some understanding outside the

terms and conditions contained in Exhibit 1. Part of the understanding is

that time was no longer of essence even though it is stipulated in Exhibit

1 that the debts must be received within 90 days. They also had an

understanding that “recovery” as contained in Exhibit 1 means appreciable

progress by the plaintiff in securing approval in principle from the affected

ministries and parastatals to pay the indebtedness.

P.W.1 stated further that the plaintiff immediately embarked on the

assignment by deploying resources to trace and retrieve files from the

archives of the various ministries and updated the defendant regularly on

progress made. She went on to say that in line with the defendant’s

instruction the plaintiff secured irrevocable approval from the Energy

Commission of Nigeria which was one of the companies listed in Exhibit 2

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for the payment of all customers of the defendant owed by the

Commission. It is the plaintiff’s case that as a result of her effort the

approved list of all the customers was sent to the Budget Office for

payment. The total number of customers according to him was twenty.

P.W.1’s further evidence is that the defendant by a letter dated

17/7/13, Exhibit 3 withdrew her instructions in respect of twelve out of the

twenty customers with the Energy Commission of Nigeria whose monies

had been approved for payment. He said the reason given for the

withdrawal was that those customers had some issues which needed

resolution. Exhibit 3 he said was a total breach of agreement between the

parties. According to him Exhibit 3 was received in November 2013

consequent upon which the plaintiff wrote Exhibit 6 (Exhibit 22) which was

received by the defendant on 26/11/13. The plaintiff stated in Exhibit 6

that it was impossible to withdraw the instruction and demanded for the

payment of the sum of N38,174,631.75k representing 13.5% of the

recovered sum of N282,775,050.00 due to her as agency fees which

money the defendant refused to pay.

It is P.W.1’s further testimony that the plaintiff sent an invoice

Exhibit 4 to the defendant for payment of the sum of N22,441,171.50k

being money due to her for recovering the sum of N166,230,900.00 out of

which she was paid the sum of N18,813,638.05k leaving an outstanding

balance of N3,627,533.45k. The balance has remained unpaid despite a

written protest. The written protest is Exhibit 7.

It is further the plaintiff’s case that he is entitled to another sum of

N32,993,127.56 being his fees in respect of monies recovered on behalf of

the defendant from the Federal Ministry of Lands and Urban Development

based on his efforts. P.W.1 in his evidence stated that the defendant

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again attempted to debrief the plaintiff vide Exhibit 5 in respect of six

customers owed by the Federal Ministry of Lands and Urban Development

after he had completed his job on the accounts with the ministry. The

debriefing he said was done at the point of payment. This act of the

defendant he said was done malafide and the letter was written to

unlawfully deprive the plaintiff of his legitimate earnings.

P.W.1 further testified that the contract created by Exhibit 1 was

reviewed variously. He said when the plaintiff was briefed he went after

the individual debtors but when he realized that the customers ability to

repay the debts was dependent on their payment from government

organizations on the jobs done for them, parties agreed the plaintiff should

pursue their repayments from the ministries. It was after this that it was

agreed that time would no longer be of essence as recovering money

from government was cumbersome. He itemized the work done by the

plaintiff in respect of the assignment to include causing certificates of final

completion of contracts to be issued, getting approval for payments and

making requests to the Budget office and Minister of state for Finance for

payments to be made to the Energy Commission and the Federal Ministry

of Lands and Urban Development as well as getting approvals for the

release of funds from Budget Office, Office of the Accountant General of

the Federation and the Central bank of Nigeria. That the activities were

concluded by the plaintiff between April and August 2013 and for which

periodic reports of activities were rendered to the defendant.

According to P.W.1 the plaintiff’s assignment was concluded

sometimes in July 2013 when he secured approvals from the various

government agencies to pay the customers of the defendant owed by

them. He said the plaintiff waited for actual payment before demanding his

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fees to demonstrate good will. It is the plaintiff’s case that she has

earned her fees and entitled to be paid.

D.W.1 who testified on behalf of the defendant adopted her witness

statement on oath of 10/6/14 as her oral testimony in support of the

defendant’s case.

A summary of the defendant’s case is as follows:

That the plaintiff was engaged by the defendant to recover debts

owed her by her customers in respect of contracts awarded them by

Energy Commission of Nigeria, Federal Ministry of Environment, Abuja,

Federal Ministry of Works, Abuja, Federal Ministry of Agriculture, Federal

Ministry of Lands, Housing and Urban Development and which payments

were domiciled to the defendant.

That the letter Exhibit 1 issued to the plaintiff upon her engagement

contained the terms of the contract. That the plaintiff was recommended to

the defendant as capable of doing the job and she also presented herself

as capable. D.W.1’s testimony is that the plaintiff failed to carry out the

defendant’s instructions particularly by failing to render reports as agreed

which made the defendant to debrief her. She said the defendant wrote to

the plaintiff to request for updates. She tendered Exhibit 24 as proof of

such request and also Exhibit 26 written to the Energy Commission to

intimate them of the domiciliation of payment. That the plaintiff was

debriefed because she failed to carry out instructions given her.

D.W.1 testified further that the plaintiff was not entitled to any

money and the payment of N18,813,638.05k made to her was in error as

she was duly debriefed. She concluded her testimony by saying that the

plaintiff is not entitled to all her claims.

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Learned counsel to the defendant in his written address distilled

the following issues for determination:

1. Whether the Plaintiff has proved its case as required by law

against the Defendant.

2. Whether the Plaintiff is entitled to any claim for damages and

interest against the Defendant.

Learned counsel to the Plaintiff for his part identified the following

issues for determination:

1. Whether the terms of the contract established in exhibit 1 were

subsequently varied by Exhibit 2, other correspondences and

the operation of the Doctrine of Estoppel by Conduct.

2. Whether the Plaintiff has proved its case and therefore entitled

to its claim.

Learned counsel to the defendant in his address submitted that the

plaintiff’s claim is based on a breach of contractual obligation and this

being so he had a duty to prove same to be entitled to his claim. He

relied on the case of A.G. RIVERS STATE VS. A.G., AKWA IBOM

STATE (2011) ALL FWLR Pt. 579 Pg. 1023. It is counsels position that

the plaintiff is bound by Exhibit 1 which he submitted contains the terms

of the contract between the parties. He submitted further that the plaintiff

having been duly debriefed is not entitled to the monies claimed. He

relied on paragraph 4 of Exhibit 1 to submit that the defendant had

powers to debrief the plaintiff.

Learned counsel submitted further that P.W.1’s evidence contains

contradictory statements and should therefore not be believed. He craved

in aid of this submission the case of UNIPETROL (NIG.) PLC VS

ADIREJE W.A. LTD (2004) ALL FWLR Pt. 231 Pg. 1238. He submitted

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that the terms of Exhibit 1 are clear and unambiguous and the plaintiff

should not be allowed to resile from them at this stage even if prejudicial

to his cause. He relied on the case of MARYAM VS IDRIS (2000) FWLR

Pt. 23 Pg. 1237.

Defendant’s counsel submitted further that the plaintiff has failed to

establish that she is entitled to the damages claimed as well as the claim

for interest. He contended further that the claim for expenses incurred in

prosecuting this suit is in the nature of special damages which requires

strict proof which burden has not been discharged. He relied on the case

of PIONEER MILLING CO. LTD VS NANSING (2006) 5 NWLR Pt. 11 Pg.

91 and urged me to dismiss the plaintiff’s case in it’s entirety.

Learned counsel to the plaintiff for his part submitted that the

relationship between the parties was initiated by Exhibit 1 which terms

were later varied by Exhibit 2. He contended that Exhibit 2 is the contract

binding on the parties. This he said was their clear intention. He relied on

the cases of BIOSOLA NIGERIA LTD & ANOR VS. MAINSTREET BANK

LTD & ORS (2013) LPELR 22062 and OMEGA BANK NIGERIA PLC VS.

O.B.C. LIMITED (2005) 8 NWLR Pt. 928 Pg. 547.

Still on the inapplicability of the terms of Exhibit 1, counsel

maintained that the contents of the document were varied by subsequent

correspondences between the parties. He referred to Exhibits 2,8,10,11 and

30. He contended that the intentions expressed by these exhibits form part

of the contract in issue and urged me to so hold. He submitted that it

would be inequitable to permit the defendant to walk out of the

subsequent agreement.

Counsel further urged me to hold that the plaintiff has proved his

case upon a balance of probabilities and therefore entitled to her claims.

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He submitted that the plaintiff concluded her work when it secured the

approvals of the relevant government agencies to pay the contractors and

having secured such commitment before she was debriefed, the purported

debriefing cannot stand. The debriefing he said was in bad faith as the

defendant was already aware the plaintiff had performed her own side of

the agreement.

It is counsel’s position that from the oral and documentary evidence

before the Court the plaintiff has shown that it worked for the defendant,

got results and was therefore entitled to his fees. He urged me to

disregard the evidence of D.W.1 as her evidence is not trustworthy.

The position of the law is that the general burden of proof in civil

cases lies on the party against whom judgment would be entered if no

evidence was adduced by either party. See EZINWA VS AGU (2004) 3

NWLR Pt. 861 Pg. 431 at 449. It is also the law that he who asserts

must prove.

Upon a careful perusal of the plaintiff’s claim and the evidence

adduced in support, it is clear that it is one for breach of contract and

specific performance. It is trite that a party whose claim is based on

contractual rights shall plead the contract, the terms which gave the right

or created the obligation and what constitutes the breach. See S.P.D.C.N.

LTD VS. NWANKA (2003) 6 NWLR Pt. 815 Pg. 184 at 208 PARAS D-E.

The plaintiff’s case is that she was engaged by the defendant to

recover some debts owed her by some of her customers on the terms

contained in Exhibit 1 which terms were later varied. The defendant’s case

on the other hand is that the contract document between the parties is

Exhibit 1.

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Exhibit 1 is a letter dated January 30, 2013 from the defendant to

the plaintiff and it reads thus:

“MANDATE TO RECOVER DEBT OWED TO FCMB BANK PLC.

The customers on the attached list were availed various

facilities by the bank at various times.

These facilities had since expired unpaid. The Bank has held

several meetings with the customers and issued demand letters

but they had failed to liquidate the outstanding balance on the

accounts till date.

We hereby assign these …accounts to your firm to recover the

entire outstanding balances under the following terms.

For accounts with 1–2 years old debt, the Bank will pay 12.5%

of amount recovered as fee while those above 2years old will

attract 13.5% as fee. Kindly note that your fees shall be

inclusive of any reimbursable and out of pocket expenses

incurred on actual amounts directly recovered by you on these

accounts. Other conditions include:

1. You should not commence litigation or enter into any

repayment agreement with the debtor on the full and final

figure of settlement of this indebtedness without the express

written instruction of the Bank.

2. You shall furnish the Bank with written monthly progress

reports on the assignment. The Bank reserves the rights to

terminate the brief on failure to meet this condition.

3. The outstanding indebtedness must be recovered within

90days from the date of this letter (which may be increased

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or reduced at the banks discretion) failing which the Bank

may have to review this assignment.

4. Notwithstanding the tenor specified in (3) above, the Bank

reserves the exclusive right to debrief you of this

assignment anytime without recourse to you.

5. You shall not collect any cheque(s) meant for the bank in

your name nor deduct your fees up from on any account.

Please not that you are herein employed as an independent

contractor and the Bank will not be responsible for any civil,

criminal or tortuous liability incurred by you in the course of

the recovery assignment.

You are advised to liaise with the undersigned if you need

further clarifications or assistance.

Kindly indicate your acceptance of this offer and the terms of

the assignment by executing the attached acknowledged copy

and returning same to us.

Thank you.

Yours faithfully,

For: First City Monument Bank Plc.

Sgd. Sgd.

Ayodeji Adesoye Margaret O. Agi

Team Lea, Loan Work Regional Head,

out & Recovery (North) Loan Work and Recovery

(North)”

The plaintiff admit receiving the above letter and does not deny

executing same. I find that the defendant engaged the plaintiff to recover

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some long outstanding debts on terms and conditions contained in

Exhibit 1 which terms were accepted by her and I so hold.

The plaintiff’s case is that the terms and condition in Exhibit 1 were

varied by Exhibit 2 upon mutual understanding by parties and that

Exhibit 2 contains the new terms of the contract.

The law is settled that where a contract is in writing, any agreement

which seeks to vary the original agreement must itself be in writing. See

the cases of JOHN HOLT & CO. (LIVERPOOL) LTD. VS. STEPHEN LAFE

(1938) 15 NLR 14, BIJOU (NIG.) LTD. VS. OSIDAROHWO (1992) 6

NWLR (Pt. 249) Pg. 643 at 649 and CBN VS. IGWINLLO (2007) 14

NWLR Pt. 1054 Pg. 393. It is also settled that in the interpretation of a

contract involving several documents, all the documents must be read

together. See ROYAL EXCHANGE ASSURANCE (NIG.) LTD. & 4 ORS.

VS. ASWANI TEXTILE INDUSTRIES LTD. (1991) 2 NWLR Pt. 176 Pg.

639 at 669 and DIAMOND BANK LTD. VS. UGOCHUKWU (2008) 1

NWLR Pt. 1067 Pg. 1 and CBN VS. IGWILLO (SUPRA).

Exhibit 2 dated April 26, 2013 which the plaintiff claims vary the

terms and condition of Exhibit 1 reads thus:

“RE: RECOVERY OF LONG OUTSTANDING DEBTS.

In line with our various discussion with you on the above

subject detailed in the list handed to your organization to

recover outstanding debts they owe the bank, we are by this

letter advising the withdrawal of all other counterpart accounts

except the under listed customers’ names as a result of the

review of their accounts:

Kindly take this as brief to continue recovery effort on the

following:

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1. All Energy Commission as previously advised.

2. BLACK SEED GLOBAL SERVICES – Federal Ministry of

Lands and Urban Development.

3. ABLE BUILDERS AND ASSOCIATES – Federal Ministry of

Lands and Urban Development.

4. GREEN WORLD SOLAR ENERGY – Federal Ministry of

Lands and Urban Development.

5. TORQUE CONCEPTS (NIG.) LTD. – Federal Ministry of

Lands and Urban Development.

6. AL-ABASS CAFSAR LTD. – Federal Ministry of Lands

and Urban Development.

Thanking you for your usual cooperation and accept the

assurances of our highest regards.

Yours faithfully,

For: First City Monument Bank Plc.

Sgd. Sgd.

Akeem Shorunke Margaret O. Agi

Loan Work out & Recovery Head, Loan Work and Recovery

(Abuja/North) (Abuja/North)”

I have considered the above and it is my view that it does not

constitute a new contract with different terms and conditions as suggested

by the plaintiff and I so hold. By Exhibit 1, the plaintiff was instructed to

go after some customers of the defendants whose names are contained

on an attached list on the terms and conditions contained therein. The

defendant by Exhibit 2 sought to withdraw all other names on the list

attached to Exhibit 1 except those stated therein. No new terms and

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conditions of the agreement were proposed. Exhibit 2 is therefore not a

review of the terms of the agreement and I so hold. Exhibit 2, 8, 10 and

11 are correspondences on the accounts the plaintiff was authorised to

proceed against and nothing more. I find the terms of the contract of

engagement to be as contained in Exhibit 1 while Exhibit 2 contains the

list of the customers to be proceeded against and I so hold. Exhibit 2 is

a document relevant for consideration as it contains the list of customers.

Exhibit 8 is a letter from the plaintiff to the Ag. Director General,

Energy Commission of Nigeria notifying him about his mandate. Exhibit 10

is a letter from the plaintiff to the defendant requesting for documents in

respect of the assignment. Exhibit 11 is a response to Exhibit 2 and it

reads thus:

“MANDATE TO RECOVER DEBT OWED TO FIRST CITY

MONUMENT BANK PLC.

As per your letter dated April 26, 2013 we have streamline

our recovery activities to the attached list.

There has been progress in our debt recovery effort. Our

meetings with various stakeholders should be yielding positive

result soon.”

Exhibit 8, 10 and 11 cannot be held as varying the terms of Exhibit

1 and I so hold

The law is settled that parties are bound by the terms and

conditions of a contract freely entered into by them. The plaintiff and the

defendant are therefore bound by Exhibit 1 which contains the terms of

their agreement and I so hold.

Relief No. 1 of the plaintiff’s claim is for the outstanding balance of

N3,627,533.45 (Three Million, Six Hundred and Twenty Seven Thousand,

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Five Hundred and Thirty Three Naira, Forty Five Kobo) of the invoiced

sum of N22,441,171.50 being the agreed fee payable to the plaintiff for

the recovery of N166,230,900.00 received by the defendant from Energy

commission.

The list of customers for which the plaintiff had authority to proceed

against is contained in Exhibit 2. The first name on the list is “All Energy

Commission Accounts as previously advised.” The defendant on the 17th of

July 2013 wrote Exhibit 3 in which she debriefed the plaintiff of some

Energy Commission Accounts. Exhibit 3 reads thus:

“DEBRIEFING OF SOME ENERGY COMMISSION ACCOUNTS.

Our various correspondences on the above subject matter

refers.

We have discovered that out of the 20 ENERGY

COMMISSION OF NIGERIA (ECN) accounts earlier given to

you for recovery purposes, 12 out of the lot have one issue

or the other that have to be resolved with various government

institutions.

Consequently the “12 accounts will be withdrawn from your list

while you continue to work on the 8 accounts listed below” as

we are trying to resolve the evolving issues with the relevant

government institutions.

1. A. G. FARINWATA LTD.

2. DANTTEC O-WEST LTD.

3. ECINO NIGERIA LTD.

4. GLEETEL COMMUNICATIONS LTD.

5. KOLSON NIGERIA LTD.

6. RODE-MEG LTD.

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7. THS-TRANS HAULAGE SERVICES LTD.

8. TORO CONTINENTAL LTD.

We sincerely thank you for your cooperation.”

It is clear from the above that the brief of the plaintiff vide

Exhibit 2 to proceed against all customers owed by Energy Commission

was reduced to only eight customers. He was debriefed on twelve

customers. The plaintiff sent an Invoice for payment dated 8/10/2013

tendered and admitted as Exhibit 4 to the defendant. The Invoice covered

the recovery made in respect of the eight customers listed in Exhibit 3. It

is P.W.1’s testimony that the plaintiff sent Exhibit 4 to the defendant for

the payment of the sum of N22,44,171.50 being 13.5% of the sum of

N166,230,900.00 recovered out of which a sum of N18,813,638.05 was

paid leaving a balance of N3,627,533.45.

The defendant wrote Exhibit 5 which is an acknowledgment of the

plaintiff’s invoice. It reads in part:

“We refer to our letters of mandate dated April 26, 2013 and

July 17, 2013 on subject matter and yours dated October 8,

2013 and wish to inform you that your fee is being processed

for payment in respect of the recovery on some Energy

Commission Accounts.”

There is nothing before me to suggest that the defendant disputed

the invoice. The fees charged vide Exhibit 4 is in accordance with the

scale agreed upon in Exhibit 1. D.W.1 in her evidence said the payment

was made in error and obtained under false pretences. I find this defence

of the defendant most ridiculous. It is a huge joke. The defendant upon

receipt of the invoice made a payment of N18,813,638.05 out of the

claim. She wrote Exhibit 5 wherein she stated that the plaintiff’s fee was

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being processed. She said nothing about misrepresentation or fraud until

the inception of this suit. The defendant who admitted the plaintiff’s claim

by paying a substantial part of the bill cannot now turn around to dispute

same and I so hold. The plaintiff demanded for her balance of

N3,627,533.45 outstanding from Exhibit 4 in writing vide a letter dated

26/11/13 which was tendered and admitted as Exhibit 7. The defendant

did not respond. I find the defence of the defendant to the plaintiff‘s claim

in relief No. 1 to be a sham and I so hold. It is an afterthought that

cannot avail her. The plaintiff is entitled to the sum of N22,441,171.50

claimed vide Exhibit 4 out of which a sum of N18,813,638.05 was paid

and I so hold. The balance has remained unpaid. The plaintiff is entitled

to the balance and I so hold. The first relief of the plaintiff’s claim which

is for the sum of N3,627,533.45 succeeds and it is accordingly granted.

The second relief is as follows:

“2. The sum of N38,174,631.75 (Thirty Eight Million, One

Hundred and Seventy Four Thousand, Six Hundred and

Thirty One Naira, Seventy Five Kobo) being the agreed

13.5% of the recovered sum of N282,775.050.00 from

Energy Commission due and owing the plaintiff.”

The plaintiff’s case is that it earned the sum claimed per the above

relief which according to her is due from the debts recovered from the

defendant’s customers owed by the Energy Commission of Nigeria. The

defendant denies this claim. The position of the defendant is that the

plaintiff was debriefed on the accounts for which the money is claimed.

Exhibit 1 is the letter of engagement of the plaintiff which contains the

terms and conditions of the contract. It has been reproduced in the earlier

part of this judgment.

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Paragraph 3 and 4 of Exhibit 1 reads thus:

“3. The outstanding indebtedness must be recovered within

90days from the date of this letter (which may be increased

or reduced at the Bank’s discretion failing which the Bank

may have to review this assignment).

4. Notwithstanding the tenor specified in (3) above, the bank

reserves the exclusive right to debrief you of this

assignment anytime without recourse to you.”

From the terms of the contract it is clear that the defendant had

the right to debrief the plaintiff without recourse to him and I so hold. In

Exhibit 3 which is a letter dated July 17, 2013, the defendant debriefed

the plaintiff in respect of 12 accounts with the Energy Commission and

limited the scope of his engagement to 8 accounts listed therein. The

plaintiff’s case is that even though Exhibit 3 is dated July 17, 2013 she

did not receive it until sometime in November 2013 after she had

completed the assignment. P.W.1’s evidence is that the plaintiff had duly

earned her fees of N38,174,631.75 before she received the letter. From

the evidence of both parties a determination of the time the plaintiff

received Exhibit 3 is very germane. While the plaintiff claims to have

concluded her assignment before she received Exhibit 3, the defendant on

the other hand claim to have debriefed the plaintiff in respect of all the

accounts of the Energy Commission of Nigeria except eight.

P.W.1 in paragraph 25 of his statement on oath of 13/2/14 stated

as follows:

“Upon the receipt of the letter dated July 17, 2013 but which

the plaintiff received sometime in November 2013, the plaintiff

wrote a letter which was received by the defendant on

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November 26, 2013 wherein among other things the plaintiff

informed the defendant that the instruction was inseparable as

well as demanded for the payment of his agreed fees in

respect of the said twelve accounts.”

P.W.1 in paragraph 18(e) of his witness statement on oath of 7/7/14

stated as follows:

“(e) That the purported letter dated 17th July 2013 was

only served on the plaintiff in October 2013 when the

plaintiff had concluded its assignment. And that between

July 2013 and October 2013, the plaintiff relate with the

defendant’s staff and to the knowledge of the defendant

worked in the various government offices on behalf of

the defendant.”

Exhibit 4 tendered by the plaintiff is an invoice. It is dated 8/10/13

and it is accompanied by a letter stating the eight accounts worked on.

The eight accounts are the same as those listed in Exhibit 3. One of the

reasons given by P.W.1 in claiming fees for the remaining 12 accounts is

that all accounts of the Energy Commission are inseparable and that he

worked on all the twenty accounts. The letter attached to the invoice

reads in part:

“In line with our letter of engagement dated January 30, 2013.

Please be informed that the under listed accounts with your

bank has been paid by Energy Commission of Nigeria and

credited by Central Bank of NIGERIA as follows.”

The plaintiff did not mention the remaining twelve accounts. She did

not say that the accounts were inseparable. She worked on eight accounts

for which she claimed her fees. I have no doubt in my mind that the

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plaintiff worked on only eight accounts because she was aware that she

had been debriefed on the remaining twelve accounts and I so hold.

Exhibit 16A is a letter dated 24th September 2013 written by the

plaintiff to the defendant. It reads in part as follows:

… “Our various correspondences on the above subject matter

dated January 30th, April 26th, June 12fth and July 17th, 2013

respectively refers.

I am happy to inform the management of First City Monument

Bank Plc that any moment from today 24th September 2013

payment owed to FCMB by contractors who worked for Energy

Commission Nigeria in 2010 will commence.”

In answer to questions put to him under cross examination P.W.1

admitted that the letter of July 17th 2013 referred to in Exhibit 16A is

Exhibit 3. The plaintiff did not complain about the contents of Exhibit 3 in

Exhibit 16A. She was happy with it and worked in accordance with the

instruction contained therein. Upon completion of the assignment as per

Exhibit 3, she presented her invoice Exhibit 4 for payment. P.W.1’s

evidence that the plaintiff received Exhibit 3 in November 2013 cannot be

true and I so hold. The plaintiff received Exhibit 3, acted on it by working

on eight customers without any complaint and got paid part of her fees.

At the time the invoice was presented the issue of inseparability of

accounts did not arise and cannot therefore arise now. I find same to be

an afterthought and I so hold.

Furthermore P.W.1 gave contradictory evidence on the date the

plaintiff received Exhibit 3. In paragraph 25 of his statement on oath of

17/7/13 he said Exhibit 3 was received in November 2013. In paragraph

18(e) of his statement on oath of 7/7/14 he said it was served on the

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plaintiff in October 2013. The date of receipt of Exhibit 3 is very material

to the plaintiff’s case and must therefore be proved by credible evidence.

November 2013 is clearly and materially different from October 2013. The

law is settled that where there are material contradictions in the testimony

of a witness the Court is not allowed to choose which of the contradictory

pieces of evidence it ought to believe but rather it is expected to

disbelieve both contradictory pieces of evidence. See OMEREDE VS.

ELEAZU (1996) 6 NWLR Pt. 452 Pg. 1 and AZUBUIKE VS. DIAMOND

BANK PLC (2014) 3 NWLR Pt. 1393 Pg. 116. The plaintiff has failed to

prove the time it received Exhibit 3 by credible evidence and I so hold.

P.W.1 stated that the payment of N282,775,050.00 for the Energy

Commission accounts were already made as at 26th November 2013. The

payment was in respect of twelve customers whose briefs had been

withdrawn by Exhibit 3. I have held that by the terms of the agreement

the defendant had the right to debrief the plaintiff. I find Exhibit 3 to be

in order and I so hold. From the totality of the evidence before me I find

that the plaintiff was debriefed before the payment of the sum of

N282,775,050.00 for which he seeks to be paid fees. Having been

debriefed she is no longer entitled to any fees from the payment and I

so hold. I find the 2nd relief claimed not proved.

It is further the plaintiff’s position that parties have an understanding

that the main duty of the plaintiff is to secure the approval and/or

commitment of the various ministries and parastatals to pay the sums due

and owing to the defendants customers and that once this is done the

plaintiff is entitled to his fees. P.W.1’s evidence is that the plaintiff’s

assignment was concluded in July 2013 when it secured approvals from

the various government agencies to pay the contractors who were indebted

22

to the defendant. The terms and conditions of the assignment given the

plaintiff by the defendant are contained in Exhibit 1. Paragraphs 2 and 3

of Exhibit 1 read thus:

“These facilities had since expired unpaid. The bank has held

several meetings with the customers and issued demand letters

but they have failed to liquidate the outstanding balance on

the accounts till date.

We hereby assign these accounts to your firm to recover the

entire outstanding balances, under the following terms.”

It is clear from the above that the plaintiff’s assignment is to

“recover the entire outstanding balances.” To my mind, the assignment is

for the plaintiff to get back from the defendant’s customers monies owed.

Securing approval for payment without proof of actual payment is not the

intention of parties in Exhibit 1 and I so hold. Parties are bound by the

terms of the agreement freely entered into by them. The plaintiff’s position

that she is entitled to her fees having secured the approval of payment is

not in consonance with the agreement and I so hold.

The plaintiff further claims the sum of N32,993,127.56 being fees

payable to her for the recovery of the sum of N244,393,537.50 received

by the defendant from the Federal Ministry of Lands and Urban

Development. P.W.1’s evidence is that a few days after the plaintiff

secured approval for payment of six customers of the defendant by the

Federal Ministry of Lands and Urban Development, the defendant wrote

Exhibit 5 to her purporting to debrief her in respect of the said six

accounts. It is the plaintiff’s case that she is entitled to her agreed fees

of N32,993,127.56 for the recovery of the sum of N244,393,537.50

23

received by the defendant from the Federal Ministry of Lands and Urban

Development.

The defendant in paragraph 29 of her statement of defence averred

as follows:

“29. The defendant denies paragraphs 33, 34 and 35 of the

plaintiff’s statement of claim and put the plaintiff to the

strictest proof of the averments contained therein. The

defendant further states that the plaintiff is not entitled to

the sum of N32,993,127.56 (Thirty Two Million, Nine

Hundred and Ninety Three Thousand, One Hundred and

Twenty Seven Naira, Fifty Six Kobo) as she was duly

debriefed and notified.”

It is not disputed that the plaintiff by Exhibit 2 had the express

mandate of the defendant to recover debts owed her by six customers

who were owed by the Federal Ministry of Land and Urban development.

She was again debriefed vide Exhibit 5 dated 24 October 2013 which

reads in part as follows:

“However we also wish to advice that the management of the

Bank has reviewed the mandate given to you in respect of the

under listed accounts and you are hereby debriefed.

1. BLACK SEED GLOBAL SERVICES – Federal Ministry of

Lands and Urban Development.

2. ABLE BUILDERS AND ASSOCIATES – Federal Ministry of

Lands and Urban Development.

3. EJEFAC NIG. LTD - Federal Ministry of Lands and Urban

Development.

24

4. GREEN WORLD SOLAR ENERGY – Federal Ministry of

Lands and Urban Development.

5. TORQUE CONCEPTS (NIG.) LTD. – Federal Ministry of

Lands and Urban Development.

6. AL-ABASS CEASAR LTD. – Federal Ministry of Lands and

Urban Development.”

To be entitled to her fees the plaintiff has a duty to prove that the

debt was actually paid to the defendant. Her claim is clearly for services

rendered. That being so she had a duty to prove she has performed her

own side of the obligation under the contract and I so hold.

In EZENWA VS. OKO (2008) 3 NWLR Pt. 1075 Pg. 610, Onnoghen,

JSC at Pg. 628 PARAS. C – D held as follows;

“It is also settled law that the onus is on the person who

seeks to enforce his right under a contract to show that he

has fulfilled all the conditions precedent, and that he has

performed all those terms which ought to have been

performed by him. Where the plaintiff fails or defaults in the

discharge of his own obligations under the contract, the action

must fail.”

I have held earlier that by the terms of the contract the plaintiff

shall recover money to be entitled to fees. On the claim of the alleged

payment made by the Federal Ministry of Lands and Development, the

onus is on the plaintiff to prove that the payment was made. She has

failed to discharge this burden and I so hold.

Furthermore, the plaintiff was by Exhibit 5 debriefed on the six

accounts with the Federal Ministry of Lands and Housing before the

25

payment was made. This was the evidence of P.W.1. He said the

payment from the Federal Ministry of Lands and Housing was received by

the defendant after Exhibit 5 was written. Can the plaintiff now be entitled

to any fees if the payment was made after she was debriefed? I do not

think so and I so hold.

The plaintiff was properly disengaged in respect of payments due

from Federal Ministry of Lands and Urban Development vide Exhibit 5.

P.W.1 in his evidence said the defendant wrote Exhibit 5 to deny him of

his fees when she became aware that approvals had been given for the

payment.

In AGBAREH VS. MIMRA (2008) 2 NWLR Pt. 1071 Pg. 378

Ogbuagu JSC held as follows:

“In the construction of documents, the cardinal principle is that

the parties are presumed to intend what they have in fact said

or written down. Accordingly, the words employed by them will

be construed and should be given their ordinary and plain

meaning, unless circumstance such as trade usage or the like,

dictate that particular construction ought to be applied in order

to give effect to the particular intention envisaged by the

parties. As a general rule, therefore, words should be given

their ordinary and plain meaning and additional words or

clauses ought not to be imported into a written agreement or

document unless it is impossible to understand the agreement

or document in the absence of such additional words or

clauses. The point must also be made that it is not the

function of a court to make or rewrite a contract for the

parties. And so, where parties have embodied the terms of

26

their contract in a written document, extrinsic evidence, whether

oral or contained in other writings, is not admissible save in a

few accepted exceptions, to add to, vary, contradict or subtract

from the terms of such document.”

The plaintiff who willfully entered into Exhibit 1 is bound by its

terms. Exhibit 1 empowers the defendant to debrief the plaintiff at any

time without recourse to him. Paragraph 4 of Exhibit 1 reads thus:

“4. Notwithstanding the tenor specified in (3) above, the bank

reserves the exclusive right to debrief you of this

assignment anytime without recourse to you.”

The law forbids the plaintiff in the present circumstance to approach

this Court to contend that a term which it willfully agreed to is unfair,

prejudicial, and should not be given effect. In IDONIBOYE-OBU VS.

N.N.P.C. (2003) 2 NWLR Pt. 805 Pg. 589, the Supreme Court held that

a party who has opened his heart, mind and eye to enter into an

agreement is clearly bound by the terms of the agreement and he cannot

seek for better terms midstream or when the agreement is a subject of

litigation, when things are no longer at ease.

The plaintiff has failed to establish it’s claim to the sum of

N32,993,127.56k being the agreed fee payable to the plaintiff out of the

sum of N244,393,537.50k and I so hold. She has failed to prove that she

earned the fees. This head of claim must also fail.

The plaintiff claims the sum of Fifty Million Naira as general

damages. General damages are those which the law implies in every

breach of contract. Generally the amount of damages to be paid to a

person for breach of contract is the amount it will entail to put the person

in the position he would have been if there had not been any breach of

27

contract. See G. CHITEX IND. LTD. VS. O.B.I. (NIG.) LTD. (2005) 14

NWLR Pt. 945 Pg. 392.

A breach of contract may however give rise to nominal damages

where the plaintiff fails to prove loss which arose in the usual course of

things from the breach that is expressly stated under the terms of the

contract and also such other loss outside the usual course of things as

was in the contemplation of the parties at the time of the contract as the

likely result of the breach of it. See X.S. (NIG.) LTD. VS. TAISEI (W.A.)

LTD.(2006) 15 NWLR Pt. 1003 Pg. 557 and G. CHITEX IND. LTD. VS.

O.B.I. (NIG.) LTD. (SUPRA).

The Plaintiff who is entitled to the outstanding balance of

N3,627,533.45k from his fees has not shown he suffered any injury. The

defendant paid part of the fees. The plaintiff has failed to establish any

breach of contract and I so hold. The claim for general damages therefore

fails.

The plaintiff claims a post judgment interest of 10% interest per

annum. This is the fifth relief of his claim. Order 39 Rule 7 of the Rules

of this Court empowers me to award post judgment interest not exceeding

10% per annum. This award is at the discretion of the court and evidence

need not be given in support of same. See CROWN FLOUR MILLS LTD

VS. OLOKUN (2008) 4 NWLR Pt. 1077 Pg. 254 at 288. PARA. G

and F.C.D.A. VS. EZINKWO (2007) ALL FWLR Pt. 393 Pg. 95. I am

of the view that the plaintiff is entitled to my discretion to award

interest on her outstanding fees of N3,627,533.45k and I so hold.

In conclusion, I find the plaintiff entitled to the sum of

N3,627,533.45k (Three Million, Six Hundred and Twenty Seven

28

Thousand, Five Hundred and Thirty Three Naira Forty five Kobo being

the outstanding balance of his agreed fees for the recovery of the sum

of N166,230,900 received by the defendant from the Energy

Commission. Judgment is entered accordingly in her favour against the

defendant in the sum of N3,627,533.45k. The defendant is ordered to

pay 10% interest per annum on the judgment sum with effect from

today until same is finally liquidated. The second, third and fourth reliefs

of the claim are dismissed.

HON. JUSTICE F.A OJO

JUDGE

9/2/2016.

Uche Uwazuruonye with Nekpen Idehem (Miss) for the Plaintiff.

D.E. Abu for the Defendant.