ZILLION ENGINEERING (NIG) LTD v. ADEBAYO (2022)

ZILLION ENGINEERING (NIG) LTD v. ADEBAYO

(2022)LCN/16670(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, April 14, 2022

CA/ABJ/CV/159/2021

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

ZILLION ENGINEERING NIG. LTD APPELANT(S)

And

MATTHEW OYELEKE ADEBAYO RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHEN A CAUSE OF ACTION IS SAID TO ARISE

THE CONSEQUENCE OF A DEFENDANT RESTING HIS CASE ON THAT OF THE PLAINTIFF

Following this authority, the inescapable implication of the Appellant’s neglect to lead evidence in support of the pleadings as contained in the Joint Statement of Defence/Counter-Claim is to the effect that, the Defendant at the trial Court had rested their case on the Plaintiff’s case with the attendant legal consequences. See: IMO STATE UNIVERSITY V PROF INNOCENT CHUKA OKONKWO (2014) LPELR-2245C(CA) made the following telling remarks which impact on the judgement of the Court when he held
“A Defendant who rest his case on the Plaintiff will be bound by the credit and debit situation in the Plaintiff’s evidence as proffered before the trial Court. The legal implication is that the Appellant will stand or fall by the evidence of the Defendants and he fell in the two (2) Courts below and he is falling here”. Going forward, the Respondent in proving his case gave evidence on the genesis the business relationship between him and the Defendants at the trial Court which includes the Appellant and the 1st Defendant. The Appellant tendered exhibit PW1F1-2 (M. O. U) to the effect that the Appellant was not a stranger to the award of contract LOT B.13.”

Let me point out here that a Statement of Claim or Defence remains simply a pleading or assertion until those assertions are propelled and upgraded into evidence by the party; by adopting the Witness Statements on Oath as evidence and by the oral evidence of witnesses in proof of the pleadings. More importantly, it must be remembered that while pleadings contain only facts, the Witness Statement on Oath is the evidence to prove the facts in the pleadings. Even so, the Witness Statement on Oath must be adopted by the witness as his evidence in the trial before it is considered as evidence. Where a Party omits to call a witness, the question of adducing evidence does not arise as there is thus neither an adopted written/Witness Statement on Oath nor oral evidence before the Court. In that situation, neither the Statement of Claim/Defence nor the Witness Statement on Oath can avail the party or witness seeking to rely on same. The result on a Plaintiff is that the suit is struck out. A Defendant although on the same pedestal of failure, still however has the right to rest his defence on the Plaintiff’s case and in so doing may indeed cross-examine the Plaintiff’s witnesses. This is exactly what ensued in the trial in this appeal. The Appellant rested its case on the Respondent’s. The Respondent must thus be content only with how well or poorly it had cross-examined the Respondent’s witnesses. The bottom line is that the Appellant led no evidence whatsoever in proof of its own assertions in the Statement of Defence; in effect abandoning its pleadings. See FCDA vs. Alhaji Musa Na’ibi (1990) 3 NWLR (Pt. 138), 270 at 281; Akinbade & Anor vs. Babatunde & Ors (2017) LPELR– SC. 11/2006. This Issue too is resolved against the Appellant.

BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This appeal questions the judgment of the High Court of the Federal Capital Territory Abuja delivered on the 2nd February 2021 in Suit No. FCT/HC/CV/2146/2018 in which the trial Court entered judgment in favour of the Respondent, then as the Plaintiff against the Appellant then as the Defendant.

As deduced from the Record of Appeal, the Respondent had approached the trial Court vide Writ of Summons and Statement of Claim seeking for declaratory Reliefs as well as payment of balance of contract sum, interest and cost against the Appellant arising from the Appellant’s breach of contract over an agreement between the duo for the facilitation of award of contract to the Appellant by the Federal Ministry of Power, Works and Housing for the reconstruction of Kano-Shuwarin Gaya Interchange in Kano State. The parties exchanged pleadings and the suit was heard on the merit. In its judgment, the trial Court held inter alia thus:
“In effect, I hold that the Claimant has led credible, plausible and persuasive evidence in proof of its case.
Claimant’s case therefore succeeds. I will now consider the claimant’s reliefs.
Leg one succeeds only to the extent that the Claimant unilaterally facilitated the contract. It is hereby declared that the Claimant unilaterally facilitated the award of the Contract for the Reconstruction of the Shuwarin Gaya Interchange Kano State, Category B, Lot 13.
It is hereby declared that there is a subsisting contract between the Claimant and the 1st Defendant and the Claimant is consequently entitled to 25% percent of the project sum, Leg three also succeeds.
It is hereby declared that the 1st Defendant acted mala fide by failure to pay the Claimant its 25% of the contract sum upon payment of the third and fourth tranches of the mobilization fees.
Leg 4 is hereby dismissed in the absence of proof of fraud beyond reasonable doubt.
Leg 5 also succeeds. The 1st Defendant is hereby ordered to pay the sum of N252,180,275.82 (Two Hundred and Fifty-Two Million, One Hundred and Eighty Thousand, Two Hundred and Seventy-Five Naira, Eighty Two Kobo) representing the balance of 25% (Twenty-Five Percent) of the sum of one N1,125,429,117.90 (One Billion, One Hundred and Twenty-Five Million Four Hundred and Twenty-Nine Thousand, One Hundred and Seventeen Naira, Ninety, Kobo) so far paid by the Ministry Works Power and Housing to the Defendant.
The sixth leg succeeds, partially. The 1st Defendant shall pay post judgment interest at the rate 10% per annum the date hereof until the entire sum is fully paid.
Leg seven also succeeds partially. Cost in the sum of N500,000.00 (Five Hundred Thousand Naira) shall be paid by 1st Defendant to Claimant,”
See pages 555 to 557 of the Record of Appeal.

The Appellant was dissatisfied with the decision and has thus approached this Court vide a Notice of Appeal filed on the 19th of February 2021 complaining against the decision on fifteen Grounds as follows:
“GROUND ONE
The trial Court erred in law and occasioned a grave miscarriage of justice when, after finding that there was no cause of action against Guo David, Roosco Resources Nig, Ltd, Al Rouss Carole Marceli and Prince Luqman Gbadegesin sued as the 2nd and, 3rd, 4th & 5th Defendants respectively at the trial Court and consequently struck out their names, still proceeded to enter judgment against the Appellant.
GROUND TWO
The trial Court erred in law and occasioned a grave:- miscarriage of Justice when it held that the Respondent had a cause of action against the Appellant.
GROUND THREE
The trial Court erred in law and occasioned a grave miscarriage of justice it held as follows:
“The role played the Claimant amongst others, including the drafting of the Acceptance Letter for the Contract Award, opening of the 1st Defendant’s Account at Zenith Bank and securing the Advance Payment Guarantee for and on behalf of the 1st Defendant. These acts the Claimant, which were not controverted by the Defendants in view and I will also hold aligns with the role expected of a party acting as a facilitator in the procurement of a contract award. The Claimant’s actions and I will also hold are indicator of a contractual relationship between it and the 1st Defendant”
GROUND FOUR
The trial Court erred in law and occasioned a grave miscarriage of justice when it held as follows:
“A careful perusal of the documents tendered leaves this Court with the inescapable conclusion that an oral or implied agreement evolved between the Claimant and the 1st Defendant. It must be recounted that the Claimant averred that he paid the N30,000.00 (Thirty Thousand Naira) fees for the contract, to wit: Exhibit P.W.I.C 1-2 was tendered in this regard. Upon the procurement of the contract, it was the lot of P. W. 1 who procured it to notify the 2nd Defendant vide a text message wherein the 1st Defendant was notified that the 1st Defendant had been provisionally prequalified to proceed to the financial tendering stage for the project bidded for. To this end, the tendered Exhibit PWIE 1-2 the whatsapp chat made by P. W.1 to the 2nd Defendant the Managing Director of … Defendant.
He recounted how he wrote the Comptroller of Works in Kano notifying him that the 1st Defendant had been awarded the contract. Still in setting the pace for the contract award, he executed the Memorandum of Understanding which he signed far and on behalf of the 1st Defendant and submitted same to the Federal Ministry of Power, Works and Hoaxing, Exhibit P. W JF1-2
GROUND FIVE
The trial Court erred in law and occasioned a grave miscarriage justice when it held as follows:
“Going by the aforesaid roles played by the Claimant towards the procurement of the contract award which role was not disputed by the Defendants, I am not left in doubt that a contractual relationship existed between the Claimant and the 1st Defendant…
Based on the 25% agreed consideration for the service rendered, the Claimant contends that it ought to be paid the sum of N252,180,275.85 (Two Hundred and Fifty-Two Million, One Hundred and Eighty Thousand, Two Hundred and Seventy-Five Naira, Eighty-Five Kobo). P.W.1’s testimony on all the payments made by the 1st Defendant and those outstanding was steadfast and consistent even under cross-examination. I am persuaded that the MOU Exhibit P.W.JF1-2 executed by the 1st Defendant and the 3rd Defendant kick started the processes leading to the contract award. I am in agreement with the Claimant’s Counsel that the1st Defendant cannot turn round having taken the benefit of the contract award to now deny the Claimant of its right to its contractual dues …
Taking a que (sic) from the foregoing decision, I am inclined to hold that in the absence of any controverting evidence that the Claimant entered into a valid and enforceable contract for the procurement of a contract award for the 1st Defendant.”
GROUND SIX
The trial Court erred in law and occasioned a grave miscarriage of justice when it held as follows:
“I find it apt to restate that which is settled on the burden of proof. The onus is (sic) the Claimant who is alleging a fact to prove facts in support of his assertion failing which judgment will be given against him. Having presented this Court with a preponderance of evidence of a valid contract, the onus shifted to the Defendants to prove otherwise…
Applying this age long principle to this case, the Claimant in my view and I will so hold has discharged the burden of proof, thus the imaginary pendulum of justice shifts to the 1st Defendant to rebut the evidence of the Claimant by showing that the contract was awarded to it independently or without the endeavours of the Claimant.”
GROUND SEVEN
The trial Court erred in law and occasioned a grave miscarriage of justice when it held as follows:
“Similarly, Defendant also has the burden of proving that the sum of N27,000,000.00 (Twenty-Seven Million Naira) paid to the Claimant were for reasons totally unrelated to the procurement or the contract award. Exhibit SPWA2A is a bank instruction reflecting that the sum of N5,000,000.00 (Five Million naira) and N2,000,000.00 (Two Million Naira) ultimately paid to Claimant for ‘partial settlement of outstanding expenses” whilst on the sum of N25,000,000.00 (Twenty-Five Million Naira), PW.1 also gave steadfast evidence of its eventual payment to the Claimant, he recounted that the 1st Defendant paid the N25,000,000.00 (Twenty-Five Million Naira) on “Partial of consultancy fee as agreed” see Exhibit SPW2A.
This piece of documentary evidence substantially tallies with the Claimant’s pleadings and the testimony of P.W. 1 who consistently asserted that the sums so far paid by the Claimant (sic) are partial payments for procuring the contract for the 1st Defendant, one would have expected the Defendant to have led credible, plausible and persuasive evidence in rebuttal of these assertions. All the Court has been left with by the Defendant is pleading which does not constitute evidence in proof of the facts pleaded. They are deemed as abandoned where the witness is unwilling to testify and subject himself to cross-examination in open Court…”
GROUND EIGHT
The trial Court erred in law and came to a wrong conclusion which occasioned a grave miscarriage of justice when it held that there was a valid and subsisting contract between the Respondent and the Appellant.
GROUND NINE
The trial Court erred in law and came to a wrong conclusion which occasioned a grave miscarriage of justice when it held as follows:
“Having held that there is a valid and subsisting contract the 1st Defendant is lawfully obliged to pay the Claimant his share of the contract sum upon payment of every trench (sic) instalment by the Ministry of Works.
There is, undisputed evidence that the third tranche of the mobilization fee was paid to the 1st Defendant in the sum of N503,240,310.67. The 1st Defendant willfully neglected to pay the 25% facilitation fee. Again, in disregard of its obligation to the Claimant the fourth tranche of N505,480,792.69 was subsequently paid to the 1st Defendant, again, the 1st Defendant failed to pay the Claimant its share of the funds.
I am of the considered view and will so hold that the 1st Defendant was in flagrant breach of the contract between it and the Claimant … I hold that the 1st Defendant breached the contract between it and the Claimant.”
GROUND TEN
The trial Court erred in law and occasioned a grave miscarriage of justice when it granted the reliefs of the Respondent despite insufficient evidence, adduced by the Respondent in proof of his claim.
GROUND ELEVEN
The trial Court erred in law and occasioned a grave miscarriage of justice when it held as follows:
“Turning to the Claimant’s last issue for determination which is whether the Claimant has proved its case on the balance of probabilities. This Court has extensively evaluated the evidence of the Claimant which remains uncontroverted in the light of the failure of the Defendants to elicit evidence in support of its pleadings. The Statement of Defence and Witness Statement on Oath of the Defendants are deemed abandoned. No evidence has been presented by the Defendants to the Court to put on its side of the scale of that imaginary scale of justice, rather the scale tilts heavily in favour of the persuasive evidence in proof of its case.
GROUND TWELVE
The trial Court erred in law and occasioned a grave miscarriage of justice when it held as follows:
“Similarly, the Defendant’s Counsel has submitted that in paragraph 36 of the Joint Statement of Defence, the Defendant admitted the Claimant’s claim only to the extent that the sum of N5,000,000.00 (Five Million Naira) and N2,000,000.00 (Two Million Naira) paid as remuneration for the support and assistance rendered by Claimant consequently the burden of proving otherwise was on the Claimant.
Learned Counsel for the Claimant in his written address has rightly noted that the facts in paragraph 36 of the Defendants’ Joint Statement of Defence should be ignored as it relates on the Defendants’ version of what the sums of N5 million and N2 million represents. Having failed to lead evidence in this regard Defendant is deemed to have abandoned this pleading consequently this submission of Counsel will likewise be ignored”
GROUND THIRTEEN
The trial Court misapprehended the case of the Appellant and thereby occasioned a grave miscarriage of justice when it held as follows:
“On the submission of the Defendant’s Counsel regarding the no presentation of the 1st Defendant’s resolution because it is a corporate entity at least a of two Directors or a Director or a secretary ought to have signed it.
Again, I am disinclined to impugn the memorandum of understanding on this account. Firstly, the Defendants are under an obligation to plead facts the procedure of a proper resolution the 1st Defendant as a corporate entity ought to before it can engage the Claimant.
In addition, evidence must be led on facts in support of the alleged invalidity of the memorandum of understanding. The submission of Counsel that there is no written resolution and what constitutes a valid resolution in his final written address must be discountenanced this Court …
Arising from this reasoning, I am inclined to discountenance the submission of the Defendant’s Counsel and hold that the non-existence or existence of a resolution is of no moment to the circumstances of this case in so far as it is not a fact in issue, the memorandum of understanding cannot be impugned on account of the alleged failure of obtaining 1st Defendant’s company
GROUND FOURTEEN
The trial Court erred in law and occasioned a grave miscarriage of justice when it held that the evidence of the Respondent was unchallenged and uncontroverted in the absence of any rebuttal evidence by the Appellant.”

The respective Particulars enumerated under these Grounds are noted. See pages 560 -573 of the Record of Appeal.

The Appellant’s Brief of Argument settled by its learned counsel Adewale Adegboyega Esq. was filed on the 15th of March 2021 while the Respondent’s Brief of Argument settled by his learned counsel Olusayo J. Odumosu Esq. was filed on the 28th of October 2021.

For the Appellant, three issues for determination have been formulated and presented thus:
“1. Whether considering the facts and circumstances of this case as well as the evidence adduced during trial, the trial Court was right in not dismissing the Respondent’s claim against the Appellant, after striking out the names of Guo David, Rocsco Resources Nig. Ltd, Al Rouss Carole Marcell and Prince Luqman Gbadegesin sued as the 2nd, 3rd 4th & 5th Defendants respectively? (Grounds 1, 2 & 13),
2. Whether upon a critical examination of the evidence adduced during trial as well as the facts and circumstances of this case, the trial Court rightly entered judgment against the Appellant in favour of the Respondent? (Grounds 3, 4, 5, 6, 7, 8, 9, 10 & 15)
3. Whether in the light of the oral and documentary evidence adduced by the Respondent as well as the evidence elicited by the Appellant’s Counsel during the crocs-examination of the Respondent’s witnesses, the trial Court was correct when it held that the Appellant abandoned its defence? (Grounds 11, 12 & 14).”

For the Respondent too, three issues have been formulated thus:
“ISSUE 1
Whether the trial Court was right to have held that there is a cause of action against the Appellant having regard to the circumstances and unchallenged evidence adduced by the Respondent.
ISSUE 2
Whether the trial Court was right to have held that there is a subsisting and valid contract was breached by the Appellant having regards to the circumstances and unchallenged evidence adduced by the Respondent before the trial Court.
ISSUE 3
Whether the Respondent had proved its case on the balance of probability and preponderance of evidence for the trial Court to have entered judgment in his favour.”

After reading the Appellant’s entire Grounds of Appeal together with their Particulars and the entirety of the two Briefs of Argument on same, I formed the view that the appeal could be determined on the Appellant’s issues but without forsaking the worth of the Respondent’s.

I shall accordingly commence the determinations from the Appellant’s first Issue (supra) which, as may be recalled, is on whether the Court was right in not dismissing the Respondent’s claims having struck out the names of the then 2nd-5th Defendants. For the sake of clarity, I should explain here that the suit as commenced and tried had five Defendants. In its judgment however, the trial Court struck out the names of the then 2nd-5th Defendants on the ground that no reasonable cause of action was disclosed against them in the trial. This explains why it is only the Appellant who proceeded in the judgment as the lone Defendant and thus now the only Appellant. See page 541 of the Record.

In arguing this Issue, the learned counsel for the Appellant began by restating the settled law that in determining whether a suit discloses reasonable cause of action or not, the Court will examine the Originating Process in the Suit. In the Respondent’s pleadings before the trial Court, the Respondent claimed against the Appellant and three others jointly. The trial Court having struck out the names of the Appellant’s co- Defendants in the Suit, ought to have struck out the Appellant’s name as well since the claims cannot thus survive against the Appellant alone. It is further argued that the trial Court’s finding that the Suit disclosed cause of action against the Appellant is unsustainable. Learned Counsel placed reliance on the provisions of Sections 131 and 132 of the Evidence Act 2011 on the burden of proving facts and the decision in Okoye vs. Nwankwo (2014) LPELR (SC).
Learned counsel also argued that the Respondent was at all material time to the Suit an agent for the then 5th Defendant. Secondly, that the Respondent did not adduce any evidence to prove the existence of contract with the Appellant by which a cause of action may arise. The Respondent, as argued also, failed to prove the existence of any contract between it and the Appellant for the facilitation of the award of the contract and thus cannot be said to have shown a cause of action against the Appellant. It is thus submitted that there is no privity of contract between the duo to justify the finding by the trial Court on the Respondent’s cause of action. Reliance is placed on the decision in Rebold Industries Ltd vs. Magreola & Ors. (2015) LPELR — 24612 (SC). On the whole, it is argued and submitted that the trial Court was wrong to have sustained the suit against the Appellant having struck out the names of the Appellant’s Co-Defendants and also erred when it held that the Respondent has a cause of action in that circumstance.

The Respondent’s arguments on this Issue are canvassed under his first Issue for determination (supra). The entire arguments thereunder are all on the same question of whether or not the 1st Respondent had disclosed a cause of action to ground the claim for the Reliefs against the Appellant. Just as did his learned friend for the Appellant, the learned counsel for the Respondent too began his arguments by restating the trite position that when in search of a Plaintiff’s cause of action, attention is focused only on the Plaintiff’s Originating Process, in this case, his Writ of Summons and Statement of Claim; placing reliance on the decision in Rinco Const. Co. vs. Veepee Ltd (2005) 9 NWLR (Pt. 929), 85. Learned counsel referred to paragraphs 1-11 of the Statement of Claim to demonstrate the relationship of the two parties in respect of the facilitation of the contract award, which relationship the Appellant defaulted on as pleaded further in paragraph 35 (ii) of the Statement of Claim. He argued that on the aggregate of the facts pleaded in the Statement of Claim the Respondent’s cause of action against the Appellant can not be in doubt. He argued also that the Respondent’s pleadings have established a factual situation which altogether entitles him for redress against the Appellant. Reliance is placed here on the decisions in Adimora vs. Ajufo (1988) 3 NWLR (Pt. 80); Uwazuruonye vs. The Governor of Imo State (2012) LPELR-20605 (SC). On the whole, the Respondent has urged this Court to resolve this Issue in his favour.

It is clear that both learned counsel have demonstrated a good understanding of the concept of cause of action and its application.

In a nutshell however, a cause of action arises when there is an enforceable claim. It may also arise from circumstances containing different facts which all together give rise to a claim that can be enforced in a Court of law and thus lead to the right to sue for the existence of such circumstances. More importantly, the factual situation or circumstances which a Plaintiff relies on must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against a defendant. See Oginni vs. I.M.B. Ltd (1994) 3 NWLR (Pt. 330), 89 at 103; Dairo vs. UBN Plc (2007) 16 NWLR (Pt. 1059), 99 at 166; CAPITAL BANCORP LTD v. SHELTER SAVINGS AND LOANS LTD & ANOR(2007) 1 SC (Pt. II), 1 at 12.

After reading the entire judgment of the trial Court, I find as more relevant the following lengthy analysis and finding on the Issue at hand thus:
“On his submission that there is no enforceable oral agreement between the Claimant and the Defendants, I am inclined to endorse the submission of the Defendant’s Counsel only to the extent of the 2nd-5th Defendants. I have carefully examined the diverse documents tendered by P.W.1 as well as his oral evidence my view as I see it that P.W.1 facilitated the contract award noted in Exhibit SPW1A. Upon careful scrutiny, Exhibit SPW1A is shown to have been awarded in favour of the 1st Defendant alone. All correspondence effected by the Claimant towards the procurement of the contract and compliance with requirements for the contract were all noted in the name of the 1st Defendant. See Exhibits SPW1A, SPW1B and SPW1C. The letter, Exhibit P.W18 notifying the award of the contract was addressed to the Managing Director of the 1st Defendant. Incidentally, Claimant’s notification of the contract award vide text message was sent to the 1st Defendant. In effect, the Claimant has not established a reasonable cause of action against the 3rd, 4th and 5th Defendants. Indeed, same can be said of the 2nd Defendant, the Managing Director the 1st Defendant, he as the Managing Director stands on the same pedestal as an agent of a disclosed principal who has been sued as the 1st Defendant without the inclusion of the 2nd -5th Defendants who are not necessary parties in this action.
I am therefore in agreement with the Defendant’s Counsel that no reasonable cause of action has been disclosed against the 2nd—3rd Defendants. This fact is further underscored by the Claimant’s claim which is basically for specific performance of the agreement to facilitate the award of the Shuwarin Gaya Interchange Kano State in favour of the 1st Defendant. The percentage of 25 sought to be paid is only payable by the 1st Defendant as consideration for procuring the contract for the 1st Defendant. The role of the 2nd-5th Defendants, going by the Claimant’s case are for the post contract award roles which is not the issue in this case. There is no evidence before this Court that the 2nd and 3rd Defendants’ “collaborated” towards the issuance of the contract award. All the salient pre-contract award role as well as the compilation of documents in conformity with the contract award requirements are noted to have been effect solely by the Claimant, no reasonable cause of action has been established against 2nd-5th Defendants. I do not see any legal wrong or act occasioned by the 2nd-5th Defendants that calls for legal redress by the Claimant. I am fortified on this point in the light of the decision in REBOLD INDUSTRY LTD. v. MAGREOLA (2015) ALL F.W.L.R. (PART 749) SC 94 where the Supreme Court held:
“… Before a party files a matter in Court he must possess what is called a cause of action which is usually against same person(s) or institutions. That is to say, a Plaintiff must stand by his pleadings that he has a cause of action maintainable in the Court of law against the Defendants. He cannot sue just anybody. It must be someone who has wronged him one way or the other you cannot sue someone who has not done any wrong …”
Applying the foregoing reasoning to the facts and circumstances of this case cannot but hold that the 2nd -5th Defendants ought not to have been sued in the first place, accordingly, the 2nd and 5th Defendants are hereby struck out.”
See pages 540 to 543 of the Record of Appeal.

In my humble view, the Appellant has not gone far enough to fault the evaluation and finding of the trial Court on the evidence which it considered the Respondent’s cause of action against the Appellant. To posit that the Appellant’s name ought to be struck out too along with the names of the then Co-Defendants is, with respect, paying the ostrich, in the face of the overwhelming evidence of the Respondent’s cause of action against the Appellant in particular and the stark absence of any against the then other Defendants. The Appellant should have focused a lot more on his own case instead of insisting to share the same status of the Co-Defendants simply because they were sued together; which the trial Court correctly found wrong.

The Appellant’s claim of absence of privity of contract between it and the Respondent is one that can neither avail the Appellant nor upset the trial Court’s finding on the lack of cause of action against the then 2nd-5th Defendants because, as the trial Court rightly found, the overwhelming evidence in exhibits SPWIA-SPWIC, the Respondent’s notification to the Appellant of the contract award etc. all established the Respondent’s cause of action against the Appellant but also failed to establish any against the Appellant’s Co-Defendants. The trial Court’s evaluation and finding on the evidence constituting the Respondent’s cause of action is unassailable. In effect, this issue is resolved against the Appellant.

As reproduced earlier, while the Appellant’s second issue is on whether, on the evidence, the trial Court rightly entered judgment in favour of the Respondent, its third Issue is on whether in the light of the Respondent’s evidence and the cross-examination by the Appellant of the Respondent’s witnesses, the trial Court was right in holding that the Appellant abandoned its defence.

In my view, the Appellant’s third Issue demands more urgent attention because its resolution will situate the proper scope of the determinations on the second Issue. Accordingly, the third Issue will be resolved first.

At the trial, hearing proceeded on the Respondent’s pleadings and witnesses in proof of those pleadings. The Appellant declined to call any witness in proof of its pleadings the Statement of Defence and Counterclaim. In its judgment, the trial Court observed so and held inter alia:
“…the implications of the Defendant’s failure to elicit evidence in support their assertions in the pleadings is that they rested their case on evidence of the Claimant at trial…”
See page 538 of the Record of Appeal.

The Appellant’s arguments under this Issue appear to have been aptly condensed in the following portion:
“6.4 We respectfully submit that the failure of the Appellant to call witnesses at the trial Court does not render the Appellant’s defence as being abandoned and the trial Court ought not to have treated the Appellant’s defence as being abandoned as oral and documentary evidence abound which supported the Appellant’s pleadings. We urge the Court to so hold, relying on the very apt above-cited decision of the apex Court, and resolve this issue in favour of the Appellant.”

His learned friend for the Respondent naturally argued this Issue differently; by contending in the main thus:
“My Lords, it is significant to state here that throughout the gamut of the trial the Defendant/Appellant led evidence in support of all their averments in their Joint Statement of Defence/Counter-Claim to enable the trial Court to evaluate both the evidence of both parties on the imaginary scale. The trial Court categorically stated this at page 536 of the Printed Record.
“Before I proceed with the consideration of the issues formulated by both counsel in their respective final written addresses, I find it necessary to note here the implications of the Defendant’s failure or neglect to elicit evidence in proof of their pleadings. Though the claimant’s counsel dealt extensively on this point in his 3rd issue for determination. I will consider the submissions at this stage, minded that the non-presentation of oral evidence has a spillover effect on this Court’s judgment as it pertains to the Defendants defence and Counter Claim (underlines ours for emphasis.)
Following this authority, the inescapable implication of the Appellant’s neglect to lead evidence in support of the pleadings as contained in the Joint Statement of Defence/Counter-Claim is to the effect that, the Defendant at the trial Court had rested their case on the Plaintiff’s case with the attendant legal consequences. See: IMO STATE UNIVERSITY V PROF INNOCENT CHUKA OKONKWO (2014) LPELR-2245C(CA) made the following telling remarks which impact on the judgement of the Court when he held
“A Defendant who rest his case on the Plaintiff will be bound by the credit and debit situation in the Plaintiff’s evidence as proffered before the trial Court. The legal implication is that the Appellant will stand or fall by the evidence of the Defendants and he fell in the two (2) Courts below and he is falling here”. Going forward, the Respondent in proving his case gave evidence on the genesis the business relationship between him and the Defendants at the trial Court which includes the Appellant and the 1st Defendant. The Appellant tendered exhibit PW1F1-2 (M. O. U) to the effect that the Appellant was not a stranger to the award of contract LOT B.13.”

Let me point out here that a Statement of Claim or Defence remains simply a pleading or assertion until those assertions are propelled and upgraded into evidence by the party; by adopting the Witness Statements on Oath as evidence and by the oral evidence of witnesses in proof of the pleadings. More importantly, it must be remembered that while pleadings contain only facts, the Witness Statement on Oath is the evidence to prove the facts in the pleadings. Even so, the Witness Statement on Oath must be adopted by the witness as his evidence in the trial before it is considered as evidence. Where a Party omits to call a witness, the question of adducing evidence does not arise as there is thus neither an adopted written/Witness Statement on Oath nor oral evidence before the Court. In that situation, neither the Statement of Claim/Defence nor the Witness Statement on Oath can avail the party or witness seeking to rely on same. The result on a Plaintiff is that the suit is struck out. A Defendant although on the same pedestal of failure, still however has the right to rest his defence on the Plaintiff’s case and in so doing may indeed cross-examine the Plaintiff’s witnesses. This is exactly what ensued in the trial in this appeal. The Appellant rested its case on the Respondent’s. The Respondent must thus be content only with how well or poorly it had cross-examined the Respondent’s witnesses. The bottom line is that the Appellant led no evidence whatsoever in proof of its own assertions in the Statement of Defence; in effect abandoning its pleadings. See FCDA vs. Alhaji Musa Na’ibi (1990) 3 NWLR (Pt. 138), 270 at 281; Akinbade & Anor vs. Babatunde & Ors (2017) LPELR– SC. 11/2006. This Issue too is resolved against the Appellant.

I now return to the Appellant’s second issue (supra) which once again is on whether, on the evidence, the trial Court rightly entered judgment in the Respondent’s favour. It is the same Issue recouched and presented as issue 3 by the Respondent also (supra). Both issues are essentially on whether the Respondent proved his claims satisfactorily in the trial.

In civil proceedings, suits, more particularly those commenced by Writ of Summons, are won and lost on the basis or absence of pleadings and evidence. There is no known alternative. As a reminder, it should be noted once again that the Appellant by his own choice proceeded into the trial up to its completion without calling any witness in proof of the assertions in the Statement of Defence. Equally noteworthy is that its Witness Statement on Oath which would have formed its entire evidence in chief was sadly therefore never adopted as such in the trial. What the Appellant therefore had as defence were the bare, unsubstantiated Statement of Defence, impotent Witness Statement on Oath and pieces of evidence elicited through the cross-examination of the Respondent’s witnesses. On the other hand, the Respondent had presented ample oral and documentary evidence in proof of the averments in the Statement of Claim.

By the dictates of the provisions of Sections 131 (1) and 134 of the Evidence Act 2011 which provide that:
“131. (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”
the Respondent had the burden of proving his claims; albeit on the balance of probabilities.
The Appellant’s main argument is that the Respondent did not prove its claims on the balance of probabilities or, put differently, on the preponderance of evidence to warrant judgment in his favour. It must be noted also that the burden of proof in civil cases preponderates and the Court will enter judgment on the preponderance of evidence after placing the totality of the evidence adduced by the parties on the imaginary scale of justice, weighing them and finding out which of the two is heavier on the scale of justice. See Section 133 of the Evidence Act; Mogaji & Ors vs. Odofin & Ors (1978) 4 SC 91 at 93-95; Uwah & Anor vs. Akpabio & Anor (2014) LPELR SC. 86/2008; Ohochukwu vs. A.G. Rivers State & Ors (2012) LPELR – SC.207/2004.

At pages 550-555 of the Record are the in-depth evaluation of the entire evidence in the trial; including the evidence elicited by the Appellant on cross-examination of the Respondent’s witnesses. The trial Court left no stone unturned in its meticulous evaluation of the evidence. Having weighed the evidence properly, the trial Court ascribed due value to the evidence it recognized as valid and credible in favour of the Respondent. Once again, it should be remembered that the Appellant neither called any witness nor utilized the critical facts in its statement of Defence. This Court will not lightly interfere with a trial Court’s evaluation of evidence. The lack of any oral or documentary evidence in proof of the Appellant’s assertions greatly impaired its position in the trial, notwithstanding its erroneously acclaimed feat in the cross-examination of the Respondent’s witnesses. In the manner the trial Court correctly evaluated the evidence adduced, coupled with the lack of any evidence from the Appellant’s pleadings, this Issue too can only be and is resolved against the Appellant.

On the whole, both sets of the three Issues of the parties having been resolved against the Appellant, the appeal fails as unmeritorious and is accordingly dismissed. The judgment of the trial Court in Suit No: FCT/HC/CV/2146/2018 is affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: I agree with my learned brother Isah Bature Gafai, JCA that this appeal is unmeritorious and that same be dismissed.

In law, the issue of misjoinder or non-joinder of a party in a suit, is not on its own a ground for striking out a suit. This is because, where there are more than one party in a suit, the striking out of the name of one or more of the parties will not incapacitate the suit, so long as there is a party on the writ who can be proceeded against. The only duty of the Court is to determine whether there is or are grounds for proceeding against the remaining defendant(s). In other words, non-joinder of parties or the striking out the name of parties, will not per se lead to dismissal or striking out of a suit. See Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348 and Bello v. INEC & Ors. (2010) 8 NWLR (Pt. 1196) 342. In the instant case, it is evident from the record of this appeal, that despite the striking out of the names of the 2nd — 5th Defendants, there were facts upon which the trial Court could proceed against the Appellant alone.

Furthermore, in an appeal, it is the duty of an Appellant who challenges the evaluation of evidence by the trial Court, to demonstrate before the appellate Court how the evaluation of the trial Court led to injustice against him or a perverse decision. He has to show that, but for the wrongful evaluation of the evidence, the judgment of the Court would have been in his favour. See Yadis (Nig.) Ltd. v. Great Nigeria Insurance Co, Ltd. (2007) 14 NWLR (Pt. 1055) 584 and Ojeleye v. The Reg’d Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2008) 15 NWLR (Pt. 1111) 520 at 543. The Appellant herein, in my view, failed in its duty as an Appellant, and I am unable to find any reason why the judgment of the Court below should be disturbed.

On that note, I agree with my learned brother that, this appeal has no merit. It is accordingly dismissed. I abide by the consequential order made in the lead judgment.

MOHAMMED MUSTAPHA, J.C.A.: I read the draft judgment just delivered by my learned brother, ISAH BATURE GAFAI, JCA. I agree with the reasoning and adopt the conclusion therein as mine.

Appearances:

ADEWALE ADEGBOYECA with him CHRISTIANA FEHITOLA For Appellant(s)

ROTIMI OGUNSO SAN with him CELESTINE A. ACHEME and DEBORAH E. IDAKWOJI For Respondent(s)