NIGERIA PORTS AUTHORITY v. AMINU IBRAHIM AND COMPANY & ANOR

…………………….A…………………….

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Lagos division of the Court of Appeal (lower or Court below) delivered on 8th May 2009 which dismissed the appeal by the appellant before it. The brief facts giving rise to the appeal as could be gathered from the record of appeal, are summarised below:-
The plaintiffs now respondents, approached the Federal High Court Lagos by filing a suit under the Undefended List procedure claiming the under listed reliefs
(a) An order directing the defendant (now appellant) to pay the sum of USD9,186,701 to the appellant/plaintiff being the agreed fee for the consultancy services rendered by the plaintiffs/respondent to it (the appellant).
(b) Interest on the said sum of USD9,186,701.00 at the rate of 10% from 27th April 2004 until final liquidation of the debt.
(c) An order directing the defendant to pay the sum of N144,303,981.00 to the plaintiffs being the agreed fee for the consultancy services entered into by the plaintiffs to the Defendant;
(d) Interest on the sum of N144,303,981 – at the rate of 10% per annum from 27th April 2004 until final liquidation of the debt.
It would seem to me that the respondents herein, based their cause of action on the alleged appellant’s failure to pay them the agreed fees in respect of professional services they rendered to the appellant in conformity with letter dated 23/1/2003 in which the appellant employed the services of the respondents to reconcile the account position regarding concessions which the appellant gave to Inter Services Limited, Nigerian Liquefied Gas (LNG) and Mobil Oil Producing Unlimited. The respondents claimed that they satisfactorily executed the job and have thereupon exhibited interim and final bills to the appellant but the latter failed or neglected to pay them despite repeated demands. That failure to settle the claims triggered the plaintiffs/respondents to institute the suit under the Undefended List Procedure against the appellant at the Federal High Court (the trial Court) claiming the payment of the aforementioned sums.
Upon being served with the originating process, the appellant filled a Notice of Intention to defend the suit supporting same with an affidavit. The defences raised in the affidavit accompanying the Notice of intention to defend the suit, include the followings;-
(i) That the Respondents did not perform the contract satisfactorily;
(ii) That the Respondents did not execute the contract within the 35 days as earlier agreed upon;
(iii) That there was no extension of time;
(iv) Parties did not agree on the sum of USD 9,186,701.00 and N144,303,981.00 as claimed by respondents
(v) That the respondents unilaterally varied the remuneration payable from 18% to 5% and that the variation was never agreed upon by the appellant
(vi) That payment of fees was contingent upon recoveries of the identified short falls from the affected companies and no such recoveries were made, hence no money was due for payment to the respondents by the appellant.
In its Judgment, the trial Court held that all the above defences did not call for the transfer of the suit filed under the Undefended List procedure to the General Cause List, especially in view of the appellant’s failure to exhibit documents in support of the affidavit supporting the notice of Intention to defend the suit.
In the result, the trial Judge found in favour of the respondents herein, as plaintiffs thereat.
Aggrieved by the Judgment of the trial Court, the appellant appealed to the Court of Appeal, Lagos division (the lower Court or Court below) which dismissed the appellant’s appeal and upheld the decision of the trial Court.
Piqued by the Judgment of the lower Court, the appellant further appealed to this Court. Initially, the learned appellant’s counsel filed a notice of appeal containing two grounds of appeal. However, with leave of this Court, the appellant’s learned counsel sought and was granted leave to amend its original notice of appeal. Sequel to that, it was allowed to amend and bring in an Amended Notice of Appeal which it filed on 26/6/2011. The Amended Notice of Appeal expanded the grounds of appeal from two to nine grounds. The appellant’s learned counsel thereupon filed an Amended Appellant’s Brief of Argument on 13/2/2012 which was deemed filed on 26/11/2017. The said Brief of argument was settled by Prof Taiwo Osipitan, SAN. The learned senior counsel for the appellant distilled six issues for determination out of the nine grounds of appeal.