⦿ CASE SUMMARY OF:
Mr. Kessington Egbor, JP. & Anor v. Mr. Peter O. Ogbebor (2015) – CA
– Balance of probabilities;
– Legal Personality;
– Pre-judgment interest;
1. Mr. Kessington Egbor, JP. & Anor;
2. Eksol Paint Ltd;
1. Mr. Peter O. Ogbebor
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Ugochukwu Anthony Ogakwu, J.C.A
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– K.O. Obamogie, Esq;
* FOR THE RESPONDENT
– N.F. Nwoko, Esq;
⦿ FACT (as relating to the issues)
This is an appeal against the judgment of the High Court of Edo State in Suit No. B/442/98 between PETER O. OGBEBOR vs. MR. KESSINGTON EGBOR, JP & ESKOL PAINT NIGERIA LIMITED delivered on 5th November 2003. The facts of the case are not convoluted. The Appellants were the Plaintiffs in an action in Suit No. B/63/90 with Union Bank PLC as the Defendant. Their case is that they secured the services of the Respondent herein to give expert testimony on their behalf in the said action and for which they agreed to pay the Respondent the sum of N100,000.00. The Respondent however makes the case that the instructions given to him was to recover the debt which Union Bank owed the Appellants and for which it was agreed that he would be paid 15% of the amount recovered based on the Scale of Professional Fees issued by the Institute of Chartered Accountants of Nigeria. Union Bank PLC eventually paid the Appellants the sum of N65 million for which the Respondent demanded that he be paid the sum of N9.7 million being 15% of the amount. The Appellants contested the Respondent’s demand, maintaining that the money paid by Union Bank was by virtue of the judgment of the Court in Suit No. B/63/90 and that the Respondent did not recover the debt but merely testified as a witness.
The parties remained at parallels in this regard consequent upon which the Respondent as Plaintiff instituted the action in Suit No. B/442/98 claiming the following reliefs: “WHEREOF the plaintiff claims from the Defendants jointly and several the sum of N10,704.00[sic] (Ten million, seven hundred and four thousand naira); Plaintiff also claims from the Defendants jointly and severally interests on the unpaid fees of N9,730,000.00 (Nine million, seven hundred and thirty thousand Naira) at the prevailing interest rate of 21% per annum from 1/3/98 (when the fees ought to have been paid) until judgment and thereafter until the money is finally paid by the Defendants to the plaintiff.
The parties having joined issues on the pleadings, the case proceeded to a plenary trial at the end of which the Lower Court entered judgment for the Respondent in the following terms:
1. The Defendants severally and jointly shall pay to the plaintiff the sum of nine million, seven hundred and thirty thousand naira only (N9,730,000.00);
2. The Defendants jointly and severally shall pay an interest rate of 5% on the sum due from 1st March, 1998 up to judgment stage and thereafter 5% on the said sum until the said sum is finally paid up;
3. The Defendants jointly and severally shall pay as costs to the plaintiff the sum of N5,000.00 (Five Thousand Naira).
The Appellant being dissatisfied with the judgment, appealed against the same.
1. Was the Respondent’s action competent and maintainable in law?
2. Did the Respondent prove his case at the trial Court on the balance of probabilities?
3. Was the trial Court right to hold the 1st Appellant liable personally for transaction of the 2nd Appellant, a distinct legal entity?
4. Was the trial Court right to have awarded pre-judgment interest in favour of the Respondent?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED, EXCEPT FOR ISSUE 4]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT AND IN FAVOUR OF THE RESPONDENT.
i. The determination of whether the relationship is champertous or contrary to public policy is to be ascertained, not on the basis of the assertions of the defence, but on the basis of the facts on which the plaintiff founded his cause of action. At the risk of prolixity, the Respondent founded the action on the basis of instructions allegedly given to him to recover a debt on which he stated that he would be entitled to 15% as fees based on the Scale of Fees prescribed by the Institute of Chartered Accountants of Nigeria for recovery of debt. Facts are the fountainhead of the law and while the authorities relied upon by the Appellants are good law, the facts of the instant matter do not disclose that the Respondent was maintaining the action with a view to getting proceeds of the action in payment. Accordingly, this issue number one will be answered in the affirmative. The Respondent’s action was competent and maintainable in law. The issue is resolved against the Appellants.
2. ISSUE 2 WAS SOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is agreed on all sides that the Respondent worked out the interest due on the debt owed at the prevailing exchange rate at every material time and that the Respondent also testified at the trial at the instance of the Appellants. Exhibits C, D, E and F written variously on 1st April 1992, 25th May 1994, 7th July 1997 and 1st December 1997 are communications from the Respondent to the Appellants updating them on the position of the principal sum owed and accrued interest based on the prevailing exchange rate of the US Dollar to the Naira since the debt owed to the Appellants by Union Bank was denominated in US Dollars. It is therefore as clear as crystal that the Respondent rendered services to the Appellants that transcended testifying in Court as the Respondent continued to update on the principal and interest even after he had testified in Court.
ii. So on the available evidence before the Lower Court, the services of the Respondent in testifying in Court and giving updates on the principal sum and interest having been rendered in the course of litigation amounts to debt recovery for which he was entitled to fees under Item 7 on page 6 of Exhibit A. Therefore on the preponderance of evidence and balance of probabilities, the Respondent proved that he recovered the debt for the Appellant.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The testimony of the PW2 and the Exhibit B series shows that N52.6M of the debt recovered was paid in the personal name of the 1st Appellant vide Exhibit B. In the circumstances, since the debt recovered by the Respondent was paid to the 1st Appellant, the Respondent could maintain the action demanding that the 1st Appellant pay him his professional fees. It therefore became of no moment that the 2nd Appellant had a separate legal personality, thereby rendering the principle in SALOMON vs. SALOMON (supra) inapplicable. Exhibit B3, shows that an initial tranche of the debt in the sum of N12.35M had been paid to the Appellants and by Exhibits B and B1, the 1st Appellant was paid the balance of N52.65M in his personal name and he duly acknowledged receipt of the same in Exhibit B4. Accordingly, the 1st Appellant cannot take umbrage on the distinct legal personality of the 2nd Appellant when in actual fact the money was paid to him personally.
4. ISSUE 4 WAS RESOLVED IN FAVOUR OF THE APPELLANT AND AGAINST THE RESPONDENT.
i. There is no whit, iota or scintilla of evidence on the Records with regard to the claim for 21% interest as pre-judgment interest. The Respondent having failed to plead the facts and grounds on which the claim for prejudgment interest was predicated, and having failed to adduce evidence to prove the rate of interest claimed was not entitled to the award of pre-judgment interest. The award of 5% interest on the sum due from 1st March, 1998 up to judgment stage is therefore set aside.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
Lord Denning in BOLTON (ENGINEERING) CO. LTD vs. GRAHAM & SONS (1957) 1 QB 159 at 172 or (1956) 3 ALL E.R. 624 at 630 as follows: “A company may in many ways be likened to a human body. They have a brain and a nerve centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find in cases where the law requires personal fault as a condition of liability in tort, the fault of the managers will be the personal fault of the company.”
⦿ NOTABLE DICTA
It is no doubt settled law that a situation where a person elects to maintain and bear the costs of an action for another in order to share the proceeds of the action or suit is champertous. In order for the action of the Respondent to be champertous, the facts have to show that the Respondent offered to maintain the action by bearing the costs of the litigation in order to be given a share of the proceeds. – Ogakwu, J.C.A. Egbor v. Ogbebor (2015)
Evaluation of evidence is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. The evaluation involves the reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. – Ogakwu, J.C.A. Egbor v. Ogbebor (2015)
The law is that the conclusions of the trial Court on the facts are presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. – Ogakwu, J.C.A. Egbor v. Ogbebor (2015)
The legal position is that where there is oral and documentary evidence, the documentary evidence should be used as a hangar from which to assess the oral testimony. – Ogakwu, J.C.A. Egbor v. Ogbebor (2015)
It is hornbook law that the abstraction called company’ or corporation’ is clothed with legal persona distinct and separate from the aggregate personalities of the individual shareholders and the officers in charge of its management. – Ogakwu, J.C.A. Egbor v. Ogbebor (2015)
Now, there are two types of interest usually awarded by a court namely: pre-judgment otherwise known as “interest as of right” and post-judgment interest, otherwise known as “discretionary interest”, which a court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. Pre-judgment interest must be claimed by a plaintiff in the Writ of Summons and Statement of Claim and evidence subsequently adduced in proof of it, failing which it will not be awarded by a court. The award of pre-judgment interest can be made where it is contemplated in the agreement between the parties, under a mercantile custom and under the principle of equity such as breach of a fiduciary relationship. – Ogakwu, J.C.A. Egbor v. Ogbebor (2015)
It seems to be rudimentary law that a plaintiff who claims interest must in addition to claiming it in the writ of summons and statement of claim plead facts and the grounds upon which the claim for interest at the rate claimed is based. – Ogakwu, J.C.A. Egbor v. Ogbebor (2015)