3PLR – BIMT VENTURES LIMITED V. LINPAK NIGERIA LIMITED

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BIMT VENTURES LIMITED

V.

LINPAK NIGERIA LIMITED

 

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 8TH DAY OF MAY, 2009

CA/L/299/07

3PLR/2009/1 2(CA)

 

 

OTHER CITATION

(2009) LPELR-8731(CA)

BEFORE THEIR LORDSHIPS

RAPHAEL CHIKWE AGBO, JCA

ADZIRA GANA MSHELIA, JCA

REGINA OBIAGELI NWODO, JCA

 

BETWEEN

BIMT VENTURES LIMITED – Appellants

 

AND

LINPAK NIGERIA LIMITED – Respondents

 

REPRESENTATION

ROTIMI SERIKI , with him Akin Elegbede and R.O. Bello – For Appellant

 

AND

FESTUS KAYEMO, with him Miss Gloria Okhajagwan – For Respondent

 

MAIN ISSUES

 

1. JUDGMENT AND ORDER – CONSEQUENTIAL ORDERS: What constitutes a consequential order

“In making the order it made the lower court relied on S. 14 of the High Court Law of Lagos State which section states as follows: “The High Court in the exercise of the jurisdiction vested in it by this law, shall in every cause or matter, grant either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties may appear entitled to in respect of any legal or equitable claim properly brought forward by then in the cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.” This section is not at large. It is a mere adjunct of S. 6(6)(a) of the Constitution of the Federal Republic of Nigeria concerning inherent powers on superior courts of record. In interpreting S.6(5) of the 1979 Constitution which section is in pari materia with S. 6(6) of the 1999 Constitution, Oputa JSC in Erisi & Ors vs Idika & Ors (1987) 4 NWLR (pt66) 503 at 518-519 had this to say: “It is doubtful if justice can be effectively administered in our courts if the courts do not possess inherent power to make consequential orders, orders that directly or indirectly, immediately or intermediately promote the process of litigation and ensure proper administration of justice. The jurisdiction, inherent though it may be, to make consequential orders is the most effective weapon in the judicial armory of our courts. After all, judgments in favour of one party or the other should be consequential in the sense that it should follow from the facts as found and from the operation of the law on those facts. A consequential order should therefore be that which follows as a result of what had gone before.” S.14 of Lagos State High Court Law restates in statutory form the powers of Lagos the State High Court to make consequential orders.” Per AGBO, J.C.A.(Pp. 16-17, paras. B-D)

 

2. COURT – DUTY OF COURT: Whether a court has a duty to grant reliefs not sought for by a party

“It is settled law that a court cannot give to a party a remedy he has not asked for. A court is bound by the reliefs sought in an application, thus the generosity of a court is confined strictly to the reliefs sought in an application. The court is under a duty not to give over and above what a party has claimed. Whilst a court may have jurisdiction to make monetary award less than what a party claims. The trial Judge lacks competence to award more than what is in the claim. See Eagle Super Pack (Nig.) Ltd v A.C.R. Plc 2006 19 NWLR (Pt. 1013) SC 20. Courts of law are not Father Christmas and cannot grant to a party a relief which he has not sought for or which is more than he has claimed. See Ekponyong v. Nyong 1975 2 SC 71 at 81-82. Olurotimi v Ige 1993 8 NWLR (Pt. 311) 257 Awoniyi v. Amoco 2000 6 SC (Pt.1) page 103.” Per NWODO, J.C.A. (P. 19, paras. A-D)

 

3. ACTION – PLEADED FACTS: Effect of pleaded facts which do not establish the prayers before the court

“This is because plaintiffs in civil proceedings plead facts to establish their prayers. When pleaded facts are not necessary to establish the prayers before the court, then those facts are irrelevant and evidence led to prove them go to no issue” Per AGBO, J.C.A.(Pp. 11-12, paras. G-A)

 

4. JUDGMENT AND ORDER – PRESERVATIVE ORDERS: Whether preservative orders are consequential orders

“The order for the Deputy Sherriff of the State High Court to take immediate possession of stalls was a preservative order. Preservative orders are consequential orders” Per AGBO, J.C.A.(P. 17, paras. E-F)

 

MAIN JUDGMENT

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment):

The appellant as claimant at the High Court of Lagos State claimed from the respondent as defendant as follows:

“(i)     A declaration that the plaintiff’s indebtedness to the defendant in respect of the Awolowo Market Development project in Olosa, Mushin, Lagos is not N20 million as now being falsely claimed by the defendant.

(ii)     Perpetual injunction restraining the defendant either by itself or its servant, privies or agents or otherwise or in any manner howsoever from further obstruction or interruption or disruption or disturbance of the on-going construction works at the Awolowo Market, Olosa, Mushin, Lagos or doing anything that would be adverse to the interest of the plaintiff in respect thereto.

(iii)    The sum of N8 million (eight million naira) as special and general damages suffered by the plaintiff as result of the defendant’s conduct and actions.”

The respondent counter-claimed as follows:

“(i)     A declaration that by virtue of an agreement dated the 3rd of January 2003 and entered into between the plaintiff and 1st defendant and receipt dated Thursday, May 8, 2003 issued by the 1st defendant, the plaintiff is the rightful owner of 20 (twenty) lock – up shops (type A) in the market known as Awolowo Market, Olosa, Mushin, Lagos State.

(ii)     A declaration that whatever the 2nd defendant’s interest is in the property known as Awolowo Market, Olosa, Mushin, Lagos State, it  does not supercede the plaintiff ownership of 20 (twenty) lock – up shops (type A) in the said market. ,

(iii)    An order of injunction restraining the defendants, whether by themselves, their officers, agents, servants, privies or otherwise howsoever from selling, leasing, transferring etc. all the type A lockup shops in Awolowo Market, Olosa, Mushin, Lagos State except the plaintiff first takes physical possession of twenty of the said shops.”

Upon conclusion of hearing, the court below adjudged the disputation as follows:

“1.     The claimant shall pay the sum of N20 million to the defendant being its admitted indebtedness to the said defendant on or before the completion of the on-going construction of the Awolowo Market, Olosa, Mushin, Lagos State.

2. Until the said sum of N20 million is fully paid, the Deputy Sherriff of the High Court of Lagos State shall take immediate possession of the already completed 27 type A lock-up shops at the said Awolowo Market, Olosa, Mushin, Lagos State and vest same in the defendant should the said sum of N20 million be unpaid on the completion of the construction of the said market project and where only a portion of the said sum of N20 million is outstanding at the end of the said project, then the Deputy Sherriff shall vest such proportion of the said shops as shall be sufficient to offset the outstanding  amount of the said N20 million at the rate of N750,000.00 per shop, in the defendant and transfer the remainder back to the claimant.

However in the event that the claimant pays up the said sum of N20 million in full before the completion of the said construction project, then the Deputy Sherriff on receiving proof of such  payment shall immediately return the entire 27 shops to the claimant.

3. The defendant on its part is hereby restrained by itself, its operatives, agents, privies or assigns from obstructing, interrupting, interfering or in any way or manner disturbing the on-going construction works at the said Awolowo Market, Olosa, Mushin, Lagos State.
4. In line with the clear evidence of its Managing Director before this court that the said sum of N20 million is interest free, there shall be no order for interest to be paid on the said judgment sum of N20 million.
5. Each party shall bear its own cost.”

   Not satisfied with the parts of the decision of the court below the appellant has filed this appeal complaining only of:

“Part of the decision relating to the finding that the defendant was entitled to 27 shops valued at N750,000 (Seven hundred and fifty thousand naira) for each shop and the order that the claimant shall pay the defendant N20 million on or before the completion of the on going construction of the Awolowo Market, Mushin, Lagos as well as the order that the Deputy Sheriff of the High Court of Lagos State shall take immediate possession of already completed 27 TYPE A LOCK UP SHOPS at Awolowo Market, Olosa, Mushin, Lagos and vest same in the defendant should the sum of N20 million be unpaid on the completion of the construction of the said market project.”

In the amended notice of appeal the appellant set out three grounds of appeal to Wit:

“GROUNDS OF APPEAL

(i) MISDIRECTION

The learned trial judge misdirected himself on the facts and thereby came to a wrong conclusion when he held as follows:

“It is also my finding from the perusal of the exhibits tendered by both sides that twenty shops were covered by the receipt Exhibit D2 simply because the estimated value of each shop was N1 million, which was later found out to be actually N750,000(Seven Hundred and fifty thousand naira) as shown in Exhibit D3.
My examination of the agreement between the parties exhibit D1 also shows that it did not limit the number of shops to 20 but only considered the number of shops that would satisfy the sum of N20  million and that arithmetically using the present value of each shop  now agreed to be N750,000 as basis for the proper number of shops to assure and satisfy the sum of N20 million would now be approximately 27.”

(ii) ERROR IN LAW

The learned trial judge erred in law when he held as follows:

“To completely and finally determine the matters in controversy between the parties herein and avoid multiplicity of actions, it is hereby adjudged as follows”

1. The claimant shall pay the sum of N20 million to the defendant being its admitted indebtedness to the said defendant on or before the completion of the ongoing construction of the AWOLOWO MARKET, OLOSA, MUSHIN, LAGOS STATE.
2. Until the said sum of N20 million is fully paid, the Deputy Sheriff of the High Court of Lagos State shall take IMMEDIATE POSSESSION of already completed 27 TYPE A LOCK UP SHOPS at the said AWOLOWO MARKET, OLOSA, MUSHIN, LAGOS STATE and VEST same in the defendant should the said sum of N20 million BE UNPAID ON THE COMPLETION of the construction of the said market project and where ONLY A PORTION of the said sum is outstanding at the end of the said project, then the Deputy Sheriff shall vest SUCH PROPORTION of the said shops as shall be sufficient to offset the outstanding amount of the said N20 million at the rate of N750,000 per shop, in the defendant and TRANSFER THE REMAINDER back to the claimant. HOWEVER in the event that the claimant pays up the said sum of N20 million IN FULL before the  completion of the said construction project, then the Deputy Sheriff on receiving proof of such payment SHALL IMMEDIATELY return the entire 27 shops to the claimant,”

(III) ERROR IN LAW

The learned trial judge erred in law in relying on the authority of BALOGUN VS AGBESANWO (2001) 17 NWLR (PT.741) Pg 118 at Pg 141 when the facts of the said authority are clearly distinguishable from the facts of the suit herein,”
From the three grounds of appeal is set out two issues for determination viz:

“i.      Whether on the basis of the evidence before the trial court the learned trial judge was right in arriving at the conclusion that the proper number of shops to assure and satisfy the sum of N20  million was 27? (Ground (i) of the Amended Notice of Appeal).

1. Whether the learned trial judge was right in (a) ordering the appellant to pay the sum of N20 million to the respondent on or before the completion of the construction of Awolowo Market, Olosa, Mushin, Lagos State and (b) ordering the Deputy Sheriff of the High Court of Lagos State to take immediate possession of 27 Type A lock-up shops at Awolowo Market, Olosa, Mushin, Lagos  State and vest same in the respondent should the sum of N20 million be unpaid on the completion of the construction of the said market project? (Grounds (ii) and (iii) of the Amended Notice of Appeal.”

The respondent also set out two issues for determination to wit:

“(1)   Whether the finding of fact by the lower court that the shops were valued at N750,000 (Seven hundred and fifty thousand naira) each is perverse and unsupported by evidence to warrant interference by an appellate court. (Ground One)

(2)     Whether the lower court was legally empowered to grant the final order it eventually granted. (Ground Two).”

The issues as articulated by the appellant more distinctly reflect the complaints in the grounds of appeal. This judgment will be adumbrated in that line. Because the issues dovetail into each other they will be taken together.
ISSUE 1- Whether on the basis of the evidence before the trial court the learned trial judge was right in arriving at the conclusion that the proper number of shops to assure and satisfy the sum of N20 million was 27.

This issue was distilled by the appellant from ground one of the grounds of appeal. The appellant argued that the finding that the total number of shops to assure and satisfy the sum of N20 million the value of the loan transaction was 27 by the trial judge was founded on a misappreciation of the evidence placed before her. The respondent on the other hand countered that the counter claimant/respondent did plead and complain that at the time exhibits “D2” and “P3” were made it was deceived by the deliberate wrong placement of the value of N750,000.00for each stall by the appellant instead of N1 million for each stall which was the proper value. The verbiage wasted by the parties in this regard is unnecessary. This is because plaintiffs in civil proceedings plead facts to establish their prayers. When pleaded facts are not necessary to establish the prayers before the court, then those facts are irrelevant and evidence led to prove them go to no issue. The prayers in the counter-claim have been reproduced above.

The disparity in the conception by the parties as to the actual value of the stalls involved in the transaction go to no issue. The prayers are clear, enforceable, conclusive and arise from the transaction between the parties.

The court found exhibit “D1” as the basis of the loan transaction between the appellant and the respondent. That finding is not in contest in this appeal.
The relevant portion is reproduced hereunder

“WHEREOF IT IS HEREBY AGREED AS FOLLOWS:

That in consideration of the GRANTEE paying back the entire loan facility on or before 31st day of July 2003 and the GRANTEE having a lien on such number of shops in the said property subject of development to the extent that it can satisfy the loan facility either entirely or any remaining part left unpaid, the GRANTOR hereby grants/gives to the GRANTEE a purely friendly, interest-free loan facility to the tune of N20,000,000.00  (Twenty Million Naira) only subject to the following terms and conditions:

(a)     The facility/grant shall be used for the sole purpose for which it is  granted i.e. Public Relations for the take off of the market project.

(b)     That the GRANTEE undertakes to pay back the said loan as follows:

1. The sum of N10,000,000.00 (Ten million naira) on or before the 30th day of April, 2003.
2. That the remaining sum of N10,000,000.00 (Ten million naira) shall be paid in three (3) installments of N3,000,000.00 on or before the 31st day of May 2003, the sum of N4,000,000.00 (Four million naira) on or before the 30th day of June 2003 and the sum of N3,000,000.00 (Three Million naira) on or before the 31st day of July 2003.

(c)     That the GRANTOR’S right of lien over the said property shall be progressively estimated on a pro rata basis as regards the amount either paid by GRANTEE or the amount left unpaid.

(d)     This agreement is intended to supercede any previous agreement (if any) on this matter.

(e)     The N20,000,000.00 loan facility shall not attract any interest under any circumstances whatsoever.”

Exh “D1” was made on 3rd January 2003. By the same loan agreement the N20 million was to be fully repaid on or before 31st July 2003. On 8th May 2003 the respondent accepted from the appellant exhibit “D2”, a receipt issued by the appellant in the sum of N20million being full payment for 20 shops type A. The receipt gave effect to the lien created in exhibit “D1”. The respondent’s counter claim was dated 30th December 2003. As at that date the cause of action of the counter claimant/respondent had accrued, the respondent not having repaid the loan as at 31st July 2003 and at the same time challenging the right of the respondent to take possession of 20 type A shops. I am not unmindful of the existence of exhibit “P3”, a letter of undertaking given by the appellant to the respondent. It is reproduced hereunder:

“LETTER OF UNDERTAKING

We hereby undertake that if the money isn’t paid at the completion of the project, she should take physical possession of the shops stated in the receipt issued to her on this date 8th May 2003, and numbered 0001201.
And in the alternative as soon as the money is paid, the receipt with No. 0001201 should and must be returned back to BIMT Ventures Ltd.”
The undertaking does not in any way vary the content of the contract exhibit “D1”. This is because an undertaking given by one party to another is a unilateral act of the party giving the undertaking. The counter claimant/respondent, even though complaining that the value of each shop was N750,000.00 and not N1 million claimed only 20 shops as provided for in exhibit D2. The counter-claimant having made its choice in its prayers, the pleadings and finding of the court as the value of each shop are irrelevant in determining the counter claim.

ISSUE II- Whether the Hon. Trial Judge was right in (a) ordering the appellant to  pay the sum of to N20million to the respondent on or before the completion of the construction of Awolowo Market, Olosa, Mushin, Lagos State and (b) ordering the Deputy Sherriff of the High Court of Lagos State to take immediate possession of 27 type A lock up shops at Awolowo Market, Olosa, Mushin, Lagos State and vest same in the respondent should the sum of N20 million be unpaid on the completion of construction of the said market project.

This issue is distilled from grounds II and III of the grounds of appeal .. The appellant has argued that the court erred in law in making these orders which he claimed are not contained in the counter claimant’s prayers. He asserted that the court lacked the competence to make the orders made. Counsel relied on the decision in S.G.B. Nig. Ltd vs Western Electronics Co. Ltd. (1998) 5 NWRL (pt.550) 512 and Ekpenyong & Ors vs Nyong & Ors (1975) 2 SC 71 to buttress the point.

He argued that S. 14 High Court Law CAP H.3 Laws of Lagos State 2003 and Balogun vs Agbesanwa (2001) 17 NWLR (pt.741) 118 relied on by the court below as the law can only be applicable in consequential reliefs as opposed to substantive reliefs.

The court below found as a fact that the appellant was indebted to the respondent in the sum of N20 million. It posited that the respondent was entitled to some remedy even if not in terms sought by the counter claim. It relied on S.14 of the Lagos State High Court Law to order the appellant to pay the N20 million. The court was certainly influenced by the legal maxim “ubi jus, Ibi remedium”. This maxim in effect means that where there is injury, there must be a remedy. But the trial court lost sight of the fact that the counter-claimant was at all material times aware of the remedy that avails it. It had the right to either sue for the value of the loan or the lien. It chose the latter. I find it incomprehensible that with the set of facts established before it, the trial court found it more expedient to go outside the prayer seeking to realize the lien. The court is not a knight errant. It cannot go about doing good. It is limited by the claim before it. In making the order it made the lower court relied on S. 14 of the High Court Law of Lagos State which section states as follows:

“The High Court in the exercise of the jurisdiction vested in it by this law, shall in every cause or matter, grant either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties may appear entitled to in respect of any legal or equitable claim properly brought forward by then in the cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.”

This section is not at large. It is a mere adjunct of S. 6(6)(a) of the Constitution of the Federal Republic of Nigeria concerning inherent powers on superior courts of record. In interpreting S.6(5) of the 1979 Constitution which section is in pari materia with S. 6(6) of the 1999 Constitution, Oputa JSC in Erisi & Ors vs Idika & Ors (1987) 4 NWLR (pt66) 503 at 518-519 had this to say:

“It is doubtful if justice can be effectively administered in our courts if the courts do not possess inherent power to make consequential orders, orders that directly or indirectly, immediately or intermediately promote the process of litigation and ensure proper administration of justice. The jurisdiction, inherent though it may be, to make consequential orders is the most effective weapon in the judicial armory of our courts. After all, judgments in favour of one party or the other should be consequential in the sense that it should follow from the facts as found and from the operation of the law on those facts. A consequential order should therefore be that which follows as a result of what had gone before.”

S.14 of Lagos State High Court Law restates in statutory form the powers of Lagos the State High Court to make consequential orders.

The order to refund money was not a consequential order. It was not prayed for. The court lacked the competence to make it. The order for the Deputy Sherriff of the State High Court to take immediate possession of stalls was a preservative order. Preservative orders are consequential orders.

The trial court ought however to have limited itself to the prayer for 20 stalls land not the 27 stalls contained in the order. It was also wrong to tie the order to the repayment of loan which repayment was not sought for.
It is clear from the proceedings at the court below that the counterclaimant had established and was, entitled to the reliefs claimed. The trial court however preferred to make the claims it formulated itself. Pursuant to S.15 of the Court of Appeal Act, I make the following orders:

(1)     The order that the claimant pay the sum of N20 million to the defendant is incompetent and is hereby avoided

(2)     It is hereby declared that the counter-claimant is entitled to twenty Type A lock up Shops in the market known as Awolowo Market, Olosa, Mushm, Lagos.

(3)     The Deputy Sherriff of the High Court of Lagos State shall take immediate possession of 20 Type A locked up shops at Awolowo Market, Olosa, Mushin, Lagos and vest same on the Defendant/counter-claimant.

(4)     Each party to bear its own costs.

ADZIRA GANA MSHELIA, J.C.A.:

I read before now the lead judgment of my learned brother Agbo, JCA just delivered. I entirely agree with his reasoning and conclusion. I have nothing useful to add. I adopt same as mine and endorse the orders made in the lead judgment costs inclusive.

REGINA OBIAGELI NWODO, J.C.A.:

I have read in advance the lead judgment delivered by my learned brother Agbo JCA. The issues raised therein have been thoroughly dealt with that I agree with the reasonings and conclusion thereat.
It is settled law that a court cannot give to a party a remedy he has not asked for. A court is bound by the reliefs sought in an application, thus the generosity of a court is confined strictly to the reliefs sought in an application. The court is under a duty not to give over and above what a party has claimed.

Whilst a court may have jurisdiction to make monetary award less than what a party claims. The trial Judge lacks competence to award more than what is in the claim. See Eagle Super Pack (Nig.) Ltd v A.C.R. Plc 2006 19 NWLR (Pt. 1013) SC 20.

Courts of law are not Father Christmas and cannot grant to a party a relief which he has not sought for or which is more than he has claimed. See Ekponyong v. Nyong 1975 2 SC 71 at 81-82. Olurotimi v Ige 1993 8 NWLR (Pt. 311) 257 Awoniyi v. Amoco 2000 6 SC (Pt.1) page 103.

In the instance case the learned trial Judge should not have formulated claim by itself. Section 14 of the Lagos State High Court law earlier reproduced in the lead judgment contains the following key words

“……. grant either absolutely or on such terms and  conditions as the court thinks just, all such remedies what so ever as any of the parties may appear entitled to in respect of any legal or equitable Claim property brought forward by then in the cause or matter”
(underlined mine).

From the underlined words Section 14 presupposes the existence of a legal or equitable claim by the claimant. The court cannot and is not allowed to initiate the claim on its own.)

For these and the fuller reasoning in the lead judgment, I abide by the order therein inclusive of the order as to cost.