IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT HIGH COURT OF JUSTICE WUSE ABUJA BEFORE HIS LORDSHIP: HON. JUSTICE M.M.

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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY BETWEEN:- HOLDEN AT HIGH COURT OF JUSTICE WUSE ABUJA ON THE 18 TH DAY OF JULY, 2013 BEFORE HIS LORDSHIP: HON. JUSTICE M.M. KOLO COURT NO. HIGH COURT THIRTY TWO (32) SUIT NO. FCT/HC/CV/430/2012 DR. OMO-EHIJELE FRANK ODAFEN...PLAINTIFF AND 1. BIODUN WILLIAM. 2. WHOT RIEM CREDIT AND THRIFT DEFENDANTS CO-OPERATIVE SOCIETY JUDGMENT Whereof the plaintiff in paragraph 12 of his statement of claim claims against the defendants as follows: a) The sum of N50,000,000 as at 15/7/12 as total debt on the two investments and N1,250,000 only as monthly interest from 15/7/12 and 10% Court interest until the debt is liquidated. b) The sum of N20, 000,000 for breach of contract. 2.

2 In order to establish his claim the plaintiff testified as its only witness and closed its case. The defendant did not appear to testify throughout the proceedings that led to judgment. As made out in its witness statement on oath PW1 Dr. Omo-Ehijele Frank Odafen told the Court that on 12/11/10 he invested the sum of N20,000,000 only with the defendants for a term of 120 days with effect from 12/11/10 to 12/3/11 at a monthly interest of N1,000,000 only. He also told the Court that on 15/11/10 he invested the sum of N5, 000,000 only with the defendants for a term of 120 days with effect from 15/11/10 to 15/3/11 at a monthly interest of N250, 000 only. He stated that the defendants in an attempt to pay him his investments gave him two Guarantee Trust Bank Plc cheques for the sum of N10,000,000 only each and Sterling Bank Plc cheque for the sum of N5,000,000 only as part of their liability to him but all the cheque were dishonoured. He further stated that the defendant s liability to him for his N20,000,000 investment on the 12/11/10 at N1000,000 monthly interest was N40,000,000 as at 12/7/12 and for the second investment of 15/11/10 at N250,000 only as monthly interest was N10,000,000 as at the 15/7/12. The witness was not cross examined and that is the plaintiff s case. Since the commencement of this suit the defendants neither appeared in Court nor represented by counsel inspite of hearing notices that were served on it at all adjournments. 3.

3 After the (PW1) plaintiff s evidence the defendant s right of cross examination and defence was foreclosed and learned counsel for the plaintiff adopted his final written address dated and filed on 20/5/13. It is noteworthy that the following documents were admitted in evidence Document captioned investment of funds Exhibit A, investment of funds dated 15/11/10 Exhibit B, Union Bank of Nigeria Plc cheque No and No Exhibits C and C1, Receipt for fixed deposit of N5,000,000 Exhibit D, Receipt for fixed deposit of N10,000,000 Exhibit D1 and Receipt No for fixed deposit of N10,000,000 Exhibit D2 GT Bank cheque No 056 in the sum of N10,000,000 Exhibit E1, GT Bank Cheque No 057 in the sum of N10,000,000 Exhibit E2 and Sterling Bank Cheque in the sum of N5,000,000 Exhibit E, Application to arbitrate Exhibit F1 and Application for reminder Exhibit F respectively. In his final written address, the learned counsel for the plaintiff formulated the following issues for determination. 1) Whether there is an enforceable contract between the parties. 2) Whether there was a breach of contract for the plaintiff to be entitled to the sum of N20, 000,000 only. 3) The effect of the defendant to file their statement of defence and lead evidence. Issue 1 Whether there is an enforceable contract between the parties. 4.

4 He submitted that the contract between the parties is enforceable. He referred to Exhibits A B D D1 and D2 and Exhibits E, E1 and E2. He further submitted that the plaintiff is entitled to the sum of N50, 000,000 for the two instalments as at 15/7/12 before this suit was commenced. He urge the Court to enforce the intention of the parties who entered into the agreement. He contend that the defendants did not comply with the terms of the investments by making payment to the plaintiff with his interest as they agreed. He referred to Exhibits A B D D1 and D2 which have been reduced into writing and by virtue of section 132 (1) of the Evidence Act none of the parties can be heard beside the written terms and conditions. He submit that this agreement is binding on the parties since they are signatories to it and no extrinsic evidence will be allowed to add to or reduce any of such contents. He referred to the following cases Lewis v UBA PW (2006) 1 NWLR (PT 962) 546 at 550 & 551 ratio 5 and 6 Macaulay v Nal Merchant Bank Plc (1990) 4 NWLR (PT 144) 283, PAN African Bank Ltd v Ede (1998) 7 NWLR (PT 558) 422, Nneji v Zakhem Co. Nig Ltd S E Co Ltd v N B C I ( 2006) 7 NWLR (PT 978) 198 at 213, 230, Koiki v Magnusson (1999) 8 NWLR (PT 615) 493 at 514 and Kaduna Textiles Ltd v Umar (1994) 1 NWLR (PT 319) 143 at 155 and urged the Court to hold that the parties have an enforceable contract and grant the claims of the plaintiff. 5.

5 Issue 2 Whether there was a breach of contract entitled to the sum of N20, 000,000 only. Counsel contended that the defendant s refusal to honour their obligation under the contract and subsequent issuance of the plaintiff with a dud cheque amount to a breach of the terms of the contract. He relied on the case of Okeke v Oche (1994) 2 NWLR (PT 329) 688 at 702 where it was held that breach of contract is actionable per se, and a party who has suffered or proved no loss may win his action for breach of contract. He asserted that the defendants have breached the contract and the plaintiff should be entitled to compensation which should take the form of damages. That the plaintiff should be placed on the same position as if the contract has been performed, this is restitutio in integrum. He cited L. C. C. Caretaker Committee v Unachukwu (1978) 3 SC 199 and Okongwu v NNPC (1989) 4 NWLR (PT 115) 296 and urged the Court to award the sum of N20, 000,000 as damages for the breach of contract. Issue 3 The effect of the defendant to file their statement of defence and lead evidence. He submitted that it is trite law that where evidence given by a party to a proceedings was not challenged by the other party who has the opportunity to do so, it is always open to the Court seized of the proceedings to act on the unchallenged evidence before it. He referred 6.

6 to the following cases. Ommon v Ekpe (2000) 1 NWLR (PT 641) 365 at 367 ratio 4, Omoregbe v Lawani (1980) 3 4 SC 108 Elema v Akenezua (2000) 13 NWLR PT 93 at 95, Nwabuoku v Ottis (1961) 2 SCNLR 232 and urged the Court to enter judgment in favour of the plaintiff. To arrive at a decision in this suit, I will adopt all the issued provided by the plaintiff as issues for determination of the Court. An agreement is made where there exist the following: a. An offer b. Acceptance c. Consideration d. Capacity to contract, and e. Intention to create. Legal relationship. See Yaro v Arewa Construction Ltd (2007) 16 NWLR (PT 1063) 333. In the instant case the plaintiff invested the sum of N20, 000,000 and N5, 000, 000 respectively in the defendants company as per exhibits A and B at a monthly interest of N1000, 000 and N250, 000 agreed by both parties with maturity date of 15 th March, There is a proviso in Exhibit A and B that the plaintiff shall give 30 days notice to the defendant if he intends to terminate the contract failing which it will authomatically be rolled over. The plaintiff did not issue any notice and by implication, the interest on Exhibits A and B continued to roll until the institution of this action. On the receipt of Exhibits A and B, the invested funds, the defendant issued to the plaintiff Exhibits D D1 and D2 confirming receipt of the 7.

7 said amount and in an attempt to meet up with part of their obligation in the transaction issued the plaintiff with Exhibits E, E1 and E2 which were Guarantee Trust and Sterling Bank Cheques amounting to N25, 000,000 which were dishonoured by the Banks. From the above scenario, all the necessary ingredients of a valid contract are present in the transaction between the parties as they all co-exist at the same time. See S. P. D. C. v Frontline Television Ltd (2011) LPELR 4952 (CA) Amana Suits Hotels Ltd v P D P (2000) 6 NWLR (PT 1013) 453 at 476, Obaike v B. C. C Plc (1997) 10 NWLR (PT 525) 435. The law is trite that parties are bound by the terms of agreement they have voluntarily entered into and where parties enter into agreement in writing they are bound by the terms thereof. I therefore hold that the plaintiff and defendants are bound by the terms of Exhibits A & B. See S.P.D.C (Nig) Ltd v Allaputa (2005) 9 NWLR (PT 931) 475 at 503, (CA), Larmie v Data Processing Maintenance & Services Ltd (2005) 18 NWLR (PT 958) 438. I have stated earlier that parties are bound by the terms of a contract they voluntarily entered into. It thus follow that the plaintiff who now seeks to enforce his rights under the contract must show that he has performed all those terms which ought to have been performed by him. In the instant case, in fulfillment of the plaintiff s obligation in this transaction he issued to the defendants Exhibits C and C1 which were two different Union Bank Plc cheques in the sum of N10, 000,000 each 8.

8 as evidenced by Exhibits D, D1 and D2 receipt of payment of the sum of N5, 000,000 N10, 000,000 and another N10, 000,000 respectively issued by the defendant to the plaintiff. See Beta Glass Plc v Epaco Holdings Ltd (2010) LPELR _ 3872 (CA) I have no doubt that the parties to this contract are bound by it and it is enforceable. The next issue is the effect of the defendants failure to file a statement of defence. Where the only pleading filed is the statement of claim, absence of a statement of defence means that no issue is joined. See Evgine Nnaekwe Ogesimba v Ezekiel Onuzuruike (2002) 15 NWLR (PT 791) 466. Therefore since the defendant did not file any pleading to join issues with the plaintiff the resultant effect is that they are not challenging or controverting the averments therein and are thus admitted. I allign myself with the submission of the plaintiff in that respect and all the numerous authorities cited (Supra). This, I think, does not require further emphasis. Finally is the issue of damages for breach of contract. I agree with the plaintiff that breach of contract is actionable per se. But when does the issue of damages arise? It was held in STAG Engineering Company Ltd v Sabalco Nig Ltd & Anor (2008) LPELR 8485 (CA), That the issue of damages arises only when there is breach of contract. Damages for breach of contract are a compensation to the plaintiff for the damages, loss or injury suffered through that breach. It is meant as far as money can do it, for the plaintiff to be placed in the same position as if the contract has been performed. See Omega Bank 9.

9 (Nig) (2005) 8 NWLR (PT 928) 547. In an action for breach of contract the measure of damages is the loss flowing naturally from the breach and is incurred in direct consequence of the breach and its quantum need not be pleaded or proved as it is generally presumed by law. See Gonzee Nig. Ltd v NERDC (2005) 13 NWLR (PT 943) 637. In the instant case the defendant s breach did not only stop at his failure to honour his own part of the obligation but went further to issue cheque to the plaintiff i.e. Exhibits E, E1 and E2 which were dishonoured. I have no doubt that the act of subjecting the plaintiff to go to the Banks to seek to cash the 2 cheques carrying his names have injured his reputation and thus entitled to relief. In view of all the foregoing, I hold that the plaintiff has established his claims against the defendants as required by law and judgment is accordingly entered for the plaintiff against the defendant in the sum of N50, 000,000 only as at 15/7/12 as total debt on the two instalments and 10% interest on the judgment debt from the date of judgment until the said judgment sum is liquidated. The sum of N200, 000 is awarded as damages for breach of contract. Signed Hon. Judge 18/7/13 Counsel. We thank the Court for the considered judgment. We ask for a cost of N100, 000 for all the times hearing notices were served on the defendant and their default. Court. A cost of N70,000 is awarded against the defendant

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