EBLA CONSTRUCTION LTD v. COSTAIN (WESTAFRICA) PLC
(2010)LCN/3992(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of July, 2010
CA/L/150/08
RATIO
REPLY BRIEF: WHEN SHOULD A REPLY BRIEF BE FILED
A reply brief however is only filed when an issue of law or argument raised in the respondent’s brief calls for a reply. Where a reply brief is necessary it should be limited to answering any new point arising from the respondent’s brief. A reply brief therefore is not a forum to articulate and repeat arguments already made in the appellant’s brief. Similarly it is not a repair kit or an avenue for raising fresh issues but rather a brief which replies to only new or fresh points duly raised in the respondent’s brief. The reply is accordingly discountenanced. See Ojo v. Okitipupa Oil Palm Pc (2001) 9 NWLR (Pt 719) 679. Okpala v. Ibeme (1989) 2 NWLR (Pt 102) 208. Cameroun Airlines v. Otutuizu (2005) 9 NWLR (Pt 929) 202. Yadis (Nig) Ltd v. G.N.I.C. Ltd (2007) 14 NWLR (Pt 1055) 584 Mini Lodse Ltd v. Ngei (2010) 41 NSCQR 1 at 44- 45. PER HON. JUSTICE ADAMU JAURO, J.C.A.
EVALUATION OF EVIDENCE: WHETHER EVALUATION OF EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE TO SUCH EVIDENCE IS ESSENTIALLY THE PRIMARY FUNCTION OF THE TRIAL COURT
…it is trite law that evaluation of evidence and the ascription of probative value to such evidence is essentially the primary function of the trial court. PER HON. JUSTICE ADAMU JAURO, J.C.A.
QUANTUM MERUIT: MEANING OF THE TERM “QUANTUM MERUIT”
The term quantum meruit, literally means “as much as he has earned” i.e., so much as the party doing the service deserves. It arises where a person has expressly or impliedly requested another to render him a service without specifying any remuneration but the circumstances imply that the service is to be paid for, there is an implied promise to pay on quantum meruit or where the contract is to do certain piece of work for a lump sum and he does only part of the work, he may be able to claim on quantum meruit. PER HON. JUSTICE ADAMU JAURO, J.C.A.
CLAIM OF QUANTUM MERUIT: WHETHER A CLAIM BASED ON QUANTUM MERUIT MUST BE BASED UPON A VALID CONTRACT BETWEEN THE PARTIES
A claim based on quantum meruit should therefore be based upon a valid contract between the parties. PER HON. JUSTICE ADAMU JAURO, J.C.A.
PARTY TO AN ACTION: WHETHER A PARTY CAN MAINTAIN ON APPEAL A DIFFERENT CASE FROM THAT PURSUED AT THE TRIAL
It is trite that a party cannot maintain on appeal a different case from that pursued at the trial. PER HON. JUSTICE ADAMU JAURO, J.C.A.
Before Their Lordships
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria
ADAMU JAUROJustice of The Court of Appeal of Nigeria
Between
EBLA CONSTRUCTION LTDAppellant(s)
AND
COSTAIN (WESTAFRICA) PLCRespondent(s)
HON. JUSTICE ADAMU JAURO, J.C.A. (Delivered the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State, per Y.O. Idowu J, delivered on 8th December 2006. By the said judgment, the claims of the claimant now respondent against the defendant now appellant were granted as per writ of summons dated 7th November, 2000 to the tune of N7,533,735.00 with 21% interest from 18/11/97 until date of judgment and 6% until judgment sum is liquidated.
The facts giving rise to this appeal are as follows. The respondent’s case is that by virtue of a subcontract agreement, it awarded the Ogunpa Channelisation Project at the Ibadan Storm Drainage and Flood Control Works Phase 1 to the Appellant. The total contract sum was N97,797.275.00 (Ninety Seven Million, Seven Hundred and Ninety Seven Thousand Two Hundred and Seventy Five Naira). The terms of the subcontract were contained in a letter dated 19th December 1996 and the appellant signed an acceptance slip dated 20th December, 1996. The sum of N9,400,025.00 (Nine Million, Four Hundred Thousand and twenty Five Naira) was paid to the appellant as advance payment. A further payment of N2,320,455.00 was made to the appellant to cover costs of work done on certificate of imput No. 008184. The appellant abandoned site, hence respondent instituted the action claiming balance of money for work not done. The appellant on its part, filed its statement of defence and incorporated a counterclaim to the tune of N16,773,599.00 (Sixteen Million Seven Hundred and Seventy Three Thousand Five Hundred and Ninety Nine Naira). Upon the conclusion of trial judgment was given in favour of the respondent per its writ of summons.
Dissatisfied with the judgment, the appellant appealed against same vide its notice of appeal dated and filed 2nd February, 2007. The notice of appeal was anchored on four grounds and the grounds shorn of their particulars are hereby reproduced thus:
“GROUND 1
The learned trial Judge erred in law when he held that there was a valid contract by basing his decision on the terms of a letter of intent tendered and admitted as Exhibit “A” which was made subject to the execution of a subcontract Agreement between the parties.
GROUND 2
The entire Judgment is against the weight of evidence as the learned trial Judge misdirected himself by failing to make a proper evaluation of the evidence adduced by PW1 in arriving at his findings or Judgment.
GROUND 3
The learned trial Judge erred in law and facts when it failed to address, consider and evaluate the 2nd but fundamental issue raised by the Defendant in its written address dated 9/06/06 as to “whether the evidence and testimonies of the Claimant are credible and sufficient enough to sustain its (Claimant’s) claim” in the face of the glaring contradictory evidence, thereby occasioning a miscarriage of justice.
GROUND 4
The learned trial Judge misdirected himself by giving Judgment in favour of the Claimant in the entire sum of N7,533,735.00 by relying on the case of NWANKWO VS. NWANKWO without properly evaluating the rational for determining the quantity and measurement of work done by the Defendant and further proceeded to dismiss the Defendant’s Counter claim in its entirety.”
In compliance with the Rules of court, parties filed and exchanged their respective briefs of argument. The appellant’s brief was dated and filed on 10th March, 2010 while the reply brief was dated 8th April, 2010 and filed on 9th April, 2010. The respondent’s brief was dated and filed on 19th March, 2010. Mr. B. Dambo for the appellant adopted and relied on the appellant’s brief and the reply brief in urging this court to allow the appeal.
Learned counsel stated that three issues for determination were distilled from the four grounds of appeal. Learned counsel made reference to page 314 paragraph 18.5 of a book titled “Legal Aspects of Finance in Emerging Markets” by Olaniwun Ajayi.
Learned counsel submitted that exhibit ‘A’ is not a contract as it is inconclusive and by paragraph 10 thereof, it envisages a subcontract agreement to be executed by the parties. Learned counsel urged the court to allow the appeal. Mr. A.K. Ayoola Johnson leading Mr. Jamiu Akolade and Mr. Adaku Ufere for the respondent, adopted and relied on the respondents brief in urging the court to dismiss the appeal. Learned counsel stated that two issues for determination were distilled from the four grounds of appeal. Learned counsel submitted that the contract in question was executed and money paid and collected by the appellant, hence whether the heading was letter of intent was irrelevant.
Learned counsel urged the court to discountenance the reply brief, contending that it reharshed earlier arguments advanced in the main brief and raised new issues like misrepresentation. In support of the submission reference was made to the case of Yadis (Nig.) Ltd v. G.N.I.C. Ltd (2007) 14 NWLR (Pt.1055) 584 at 599.
Learned counsel concluded by urging the court to dismiss the appeal.
The three issues for determination as distilled by the appellant in its brief of argument are as follows:-
“(i). Whether the learned trial Judge was right in holding that there was indeed a valid contract between the Appellant and the Respondent, when the Respondent never Exhibited the alleged executed subcontract (dated 19/12/96) or main agreement (between it and Oyo State Government)
to substantiate its claims while adducing evidence, but relied heavily on an inconclusive letter of intent (Exhibit “A”) that there was indeed a binding contract when infact the proposed sub contract agreement was never executed by the parties.
(ii). Whether in the face of the irreconcilable contradictions in the exhibits tendered at the trial and evidence adduced in support of same by “PW1″ the learned trial Judge was right in arriving at his findings without a proper evaluation of the evidence adduced as to the quantity of work carried out by the Appellant.
(iii). Whether the learned trial Judge was right in relying on statements allegedly admitted as expressed in the case of NWANKWO VS. NWANKWO cited by the Respondent, in arriving at his findings without considering the circumstances under which the said admitted statements were made and the issue of the dismissal of the counter-claim on the basis that credible evidence was not adduced to prove special damages.”
The respondent on its part formulated the following two issues for determination:
(i). Having regard to the facts and circumstances of this case, whether the lower court was not perfectly right in holding that there is a valid/binding contract between the Appellant and the Respondent and which was breached by the Appellant.
(ii). Whether in the consideration and evaluation of the evidence adduced before it, the lower court was not right in giving judgment in favour of the respondent and dismissing the counterclaim of the Appellant.”
The first issue as formulated by both parties are virtually the same and identical. The remaining two issues as formulated by the appellant are covered by the second issue as distilled by the respondent. The three issues as formulated by the appellant will be adopted in resolving this appeal. Before embarking on the resolution of the issues, I wish to make an observation on the appellants reply brief. I noticed that the appellant’s reply brief reharshed arguments earlier made in the main brief and raised new points or issues like misrepresentation. Order 17 Rule 5 of the Court of Appeal Rules 2007, made provisions for the filing of a reply brief by an appellant. A reply brief however is only filed when an issue of law or argument raised in the respondent’s brief calls for a reply. Where a reply brief is necessary it should be limited to answering any new point arising from the respondent’s brief. A reply brief therefore is not a forum to articulate and repeat arguments already made in the appellant’s brief. Similarly it is not a repair kit or an avenue for raising fresh issues but rather a brief which replies to only new or fresh points duly raised in the respondent’s brief. The reply is accordingly discountenanced. See Ojo v. Okitipupa Oil Palm Pc (2001) 9 NWLR (Pt 719) 679. Okpala v. Ibeme (1989) 2 NWLR (Pt 102) 208. Cameroun Airlines v. Otutuizu (2005) 9 NWLR (Pt 929) 202. Yadis (Nig) Ltd v. G.N.I.C. Ltd (2007) 14 NWLR (Pt 1055) 584 Mini Lodse Ltd v. Ngei (2010) 41 NSCQR 1 at 44- 45.
ISSUE ONE
On this issue, learned counsel for the appellant contended that the respondent averred to the existence of a sub-contract agreement in paragraphs 3, 4 and 5 of their statement of claim. Learned counsel stated that no evidence was led by the respondent to prove the existence of any sub contract agreement dated either 19/12/96 or 20/12/96 between the respondent and appellant.
Learned counsel submitted that where a party fails to lead evidence in proof of facts pleaded in the statement of claim, the facts are deemed abandoned. In support reference was made to the case of Alao v. Kure & Anor (2000) 9 NWLR (Pt.672) 423 at 440.
Learned counsel further contended that PW1 while adducing evidence stated that there were letters of contract and that the sub contract agreement was incorporated into the letter of intent exhibit ‘A’. Learned counsel argued that before a document could be said to be incorporated in another, there must be a clear operative incorporation clause manifesting the intention of the parties, which is missing in this case. In support, reference was made to Awolaja v. Sea Trade G.B.U. (2002) 4 NWLR (Pt 758) 520 at 534.
Learned counsel argued that the respondent has failed to prove the existence of a sub contract agreement or its incorporation into a letter of intent. Learned counsel submitted that the evidence led by the respondent was at variance with their pleadings and reference was made to the case of Igbojimadu v. Ibeabuchi (1998) 1NWLR (Pt. 533) 179 at 194.
Learned counsel further contended that the learned trial judge came to wrong finding that the existence of a contract was confirmed by the evidence of DW1 and exhibit R (letter of intent) also admitted as exhibit A. On this submission, reference was made to Section 135 to 137 of the Evidence Act and the case of N.B.N. Ltd v. Olatunde & Co. Ltd (1994) 3 NWLR (Pt 334) 512 at 526. Learned counsel argued that exhibit ‘A’ is inconclusive, and by its inconclusive nature it amounted to a counter offer which cannot bind either of the parties. Learned counsel submitted further that the basic elements of a contract, namely offer, acceptance, consideration, intention to create legal relationship and consensus ad idem are missing in the whole transaction. In support of this contention reference was made to the following cases: Orient Bank (Ms) Plc v. Bilante Int. Ltd (1997) 8 NWLR (Pt 515) 37 at 76. Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723 at 741, UBN Ltd v. Sax (Nig) Ltd (1994) 8 NWLR (Pt. 361) 150 at 168. In concluding learned counsel submitted that the learned trial judge erred in law when he relied on exhibit ‘A’ in establishing the existence of a contract. Learned counsel therefore contended that there is no enforceable sub contract agreement between the parties.
In response learned counsel for the respondent stated that the existence of a valid, binding end enforceable contract was established by the evidence on oath called by both parties.
Learned counsel made reference to the introductory part of the evidence of DW1 and submitted that by that evidence appellant was emphatic that it was awarded contract by latter of intent exhibits A and R, which it accepted by signing exhibit S. Learned counsel submitted that the law is trite to the effect that where a witness called by a defendant gives evidence in support of plaintiffs case and the witness is not declared a hostile witness, such evidence amounts to an admission and plaintiff can rely on it.
In support of the submission, reference was made to the following cases. Olatunn v. Adisa (1995)2 NWLR (Pt 376) 167 at 181, Usman v. K.S.H.A (2007) 11 NWLR (Pt 1044) 148 at 198. Jibril v. Mil Adm. Kwara State (2007) 3 NWLR (Pt 1021) 357 at 382, C.D.C. (Nig) Ltd v. S.C.O.A (Nig) Ltd (2007) 6 NWLR (Pt 1030) 300 at 327. Learned counsel made reference to paragraphs 1, 4, 6 and 17 of the statement of defence and argued that the appellant having admitted paragraphs 6 and 7 of the statement of claim is indicative of the existence of a contract worth N97,797,275.00 out of which the sum of N9,400,025.00 was paid to the appellant as advance payment. Learned counsel further contended that paragraphs 6 and 7 flowed directly from paragraphs 3, 4 and 5 of the statement of claim. Learned counsel further argued that from paragraph 7 of the statement of defence, the contention of the appellant is that in furtherance of exhibit A and R, it moved to site and executed the contract diligently.
Learned counsel stated that the defence as advanced by the appellant was inconsistent from both evidence and pleadings. The denial of the existence of a sub contract by the appellant, counsel argued is ineffectual to constitute a good defence to the existence of a binding contract. In support reference was made to the case of C.C.B. (Nig) Plc v. Ozobu (1998) 3 NWLR (Pt.541) 290.
Learned counsel argued that the denial of the contract after the receipt of payment on account of same, amounts to approbating and reprobating and a party cannot approbate and reprobate in respect of the same matter. In support reference was made to the following cases. Kayode v. Odutola (2001) 11 NWLR (Pt.725) 668. Ezomo v. Att. Gen. Bendel State (1986) 4 NWLR (Pt.36) 462. Learned counsel submitted that a party should be consistent in stating his case and proving it as the law will not favour a party who is slippery. In support reference was made to, Ajide v. Kelani (1985) 3 NWLR (PL 12) 248. Abubakar v. Yar’adua (2008) 19 NWLR (Pt.1120) 1. Learned counsel further submitted that the lower court was perfectly right in accepting part of the evidence of DW1 that supports the case of the respondent as to the existence of a binding sub contract. In support further reference was made to the case of Jibril v. Mil Admin, Kwara State (supra). Learned counsel therefore posited that from all angles, the existence of a valid sub contract was made out in the pleadings and the evidence.
As to the ingredients of a valid contract, learned counsel contended that the clauses in exhibits A and R contain all the ingredients of a valid contract, which has been accepted without qualification by exhibit S. Learned counsel argued that the contention of the appellant as to whether exhibit A, constitutes a contract boarders more on form not on substance. In support reference was made to the case of Carlen (Nig) Ltd v. University of Jos (1994) 1 NWLR (Pt 323) 631. Learned counsel submitted that DW1 testified to the effect that when the contract was awarded they moved machineries to site. Learned counsel argued that the conduct of the appellant in commencing the execution of the contract has settled the issue of whether where was a contract
or not. In support, reference was made to the case of Aruruba v. E.C.B. Ltd (2005) 10 NWLR (Pt.933) 321. Learned counsel concluded by saying that all the cases cited by the appellant are hot apposite to the present case and urged that the issue be resolved in favour of the respondent, by holding that the parties are bound by the terms of exhibit A and S.
The contention or grouse of the appellant under this issue is that there was no binding contract between the parties and that the trial court was wrong by relying on exhibit A to conclude that there was a binding contract between the parties. Both parties called one witness each styled PW1 and DW1 and tendered numerous documents admitted in evidence as exhibits. PW1 gave evidence as to the award of sub contract for the Ogunpa River Channelisation Project to the appellant at the total cost of N97m, and the advance payment of 25% of N37m for phase 1, which is to the tune of N9,400.025.00. The witness further stated that the sub contract was awarded vide a letter dated 19th December 1996, which was accepted by endorsing exhibit S (which was tendered by the appellant). The witness tendered the letter dated 19th December, 1996 as exhibit A and another letter dated 7/3/97 as exhibit A1. Under cross examination on page 103 of the record the witness maintained the same position to the effect that the sub contract agreement is the letter of intent.
In the introductory part of his evidence in chief on pages 105 – 106, DW1 the Managing director of the defendant now appellant stated thus:-
“My name is Aiman Saimua. I am a Civil Engineer, I am the Managing Director of the Defendant. I know the Claimant they (sic) awarded me a contract in 1996 December to carry out excavation works in Ogunpa River, Ibadan. It was awarded by a letter of Intent. This is the letter.”
No objection Court – Letter dated 19/12/96 admitted and marked Exhibit R.
“I signed an acknowledgment slip.”
No objection.
Court – Slip admitted and marked as Exhibit S.”
It is to be noted that the exhibit R tendered by the appellant is the same letter admitted as exhibit A through PW1. This piece of evidence as stated by DW1, clearly supports the case of the respondents to the effect that there was a sub contract awarded to the appellant vide a letter dated 19/12/96 which was accepted. The trial court is entitled to treat such an evidence as an admission and the plaintiff is entitled to rely on same in further reinforcement of his case. See Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 165 at 181, Usman v. KSHA (2007) 11 NWLR (Pt.1044) 148 at 198. Jibril v. Mil. Adm. Kwara State (2007) 3 NWLR (Pt 1021) 357 at 382. C.D.C. (Nig) Ltd v. SCOA (Nig) Ltd (2007) 6 NWLR (Pt.1030) 300 at 327.
From the state of pleadings the plaintiff now respondent, in paragraphs 3 to 7 of the statement of claim pleaded that it awarded a sub contract for the Ogunpa Channelisation Project to the defendant at the rate of N97,797,275.00 and paid N9,400,075.00 as advance payment. The defendant now appellant in paragraph 1 of its statement of defence admitted paragraphs 1, 2, 6 and 7 of the claimants statement of claim. At this juncture, I find it necessary to reproduce paragraphs 6 and 7 that have been admitted in paragraph 1 of the statement of defence. Paragraphs 6 and 7 of the statement of claim are as follows:
“6. The Plaintiff avers that the total contract sum was N97,797,275.00 (ninety seven million, seven hundred and ninety seven thousand, two hundred and seventy five Naira) which was for work on a number of designated areas.
7. The Plaintiff avers that these works were however to commence on the areas referred to as ‘beyond expressway’ and ‘lower Ogunpa’ and the sum of N9,400,025.00 (nine million, four one hundred and twelve thousand and thirty Naira) (sic) was paid to the defendant as advance payment for this purpose.”
The defendant having admitted receiving the sum of N9,400,025.00 as advance payment, it does not lie in his mouth to say that there was no binding contract with the plaintiff. If one may pause to ask, why was the said money paid to the appellant?
I have meticulously studied exhibit A and R, and to my mind all the ingredients of a valid contract are contained therein. The said exhibit A was unequivocally accepted without qualification, hence maturing into a valid and enforceable contract. The defendant cannot receive advance payment, issue a performance bond and at the same time say there was no contract. That will amount to approbating and reprobating. The contention of the appellant that exhibit A does not amount to a contract, is more of form than substance. The law of contract has developed beyond this mundane point, the essential thing is consensus between the parties on essential terms backed by consideration and intention to create legal relations. See Carlen (Nig) Ltd v. University of Jos (1994) 1 NWLR (PL 323) 631. The defence raised by the appellant that there was no sub contract agreement is a sham defence and no amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence. The cases of Orient Bank (Nig.) Plc v. Bilante Int’l Ltd (1997) 8 NWLR (Pt 515) 37. Amizu v. Nzenbe (1989) 4 NWLR (Pt.118) 755 and U.B.N. Ltd v. Sax (Nig) Ltd (1994) 8 NWLR (Pt. 361) 150 are not apposite to the case at hand.
The lower court was on a firm legal wicket in reaching the conclusion that there is in existence a binding contract between the parties herein as evidence in Exhibits A and R. This issue fails and is resolved against the appellant in favour of the respondent.
ISSUE TWO
The complaint under this issue is to the effect that the learned trial judge came to a wrong finding as regards the overall evaluation of evidence and in particular the exhibits tendered by the respondent to substantiate its claim that the appellant is indebted to it to the tune of N7,533,735.00. Learned counsel stated that the valuation for the months of January and February 1997 on the Certificate Input Document No.2 was admitted as exhibits B and W. Learned counsel contended that the respondent gave evidence to the effect that the quantity of work carried out on exhibit B was not satisfactory for being below 100,000 cubic meters proposed in the methodology statement marked 1D1.
Learned counsel submitted that the learned trial judge erred by attaching weight to the methodology statement which was not signed, hence a worthless document.
Learned counsel submitted that the learned trial judge never evaluated the contents of exhibits D and L1 in a bid to establish that the 100,000 cubic metres was just a proposal and not binding on the parties. Learned counsel contended that the graph (progress curves) attached to exhibit D for January, February and March 1997, indicated 67,500, 60,000.00 and 62,500.00 cubic metres as expected maximum or upper limit of work to be carried out by appellant as opposed to 100,000 cubic metres proposed in the methodology exhibit 1D1. Learned counsel argued that the respondent misled the learned trial judge to erroneously believe that 100,000 cubic metres was the benchmark for determining satisfactory performance of the appellant, hence arriving at a wrong finding that the performance of the appellant was low as production for March was 12,214.06 on page 106 of the record.
Learned counsel further argued that the month of March was not even covered by exhibit B, but exhibit C.
Learned counsel contended that the figures contained in exhibit B are not a true reflection of the work carried out by the appellant and the figures in exhibit B are at variance with the figures contained in exhibit D. Learned counsel further submitted that there was a dispute as to the valuation contained in exhibit C and the respondent never led evidence to the fact that the dispute was resolved. Learned counsel argued that in the light of glaring contradictions as to the quantity of work done, the learned trial judge erred in law by coming to the conclusion that he prefers the evidence of the respondent as to the certification of work done.
Learned counsel urged this court to re-evaluate the evidence and make proper findings. In support of this submission, reference was made to the following cases: Eyo v. Inyang (2001) 8 NWLR (Pt.715) 304 at 326. Onisaodu v. Elewuju (2006) 13 NWLR (Pt 998) 517 at 528. Learned counsel submitted that the respondent pleaded that appellant moved out of site within the first week of June 1997 and never returned. Learned counsel stated that the respondent never led evidence to establish this fact. On the other hand, learned counsel argued that the appellant led evidence to the fact that it never abandoned site except in July due to rains and to effect repairs on machines and remobilized to site in September.
Learned counsel made reference to exhibits H, V and U5 and contended that the trial judge relied heavily on exhibit G in evaluating evidence on the issue of abandonment of site.
Consequent upon the foregoing, learned counsel argued that the finding of the trial court that appellant abandoned site in June is not supported by evidence. Learned counsel further stated that the respondent did not lead any evidence to the fact another contractor was employed to do the job. Consequent upon the foregoing, learned counsel urged that the issue be resolved in favour of the appellant.
In response, learned counsel for the respondent stated that the assessment of evidence and the ascription of probative value of such evidence are primary functions of the trial court. In support reference was made to the case of Akinloye v. Ejilola (1968) NMLR 92 at 95. Learned counsel stated that the function of the appellate court is to oversee and review the way the dispute was tried and to see whether the trial court adopted the correct procedure and arrived at proper decision according to law. In support also, reference was made to the following cases: Board of Customs & Excise v. Barau (1982) 10 SC 48 at 137. Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 493. Learned counsel submitted that a party who alleged that the trial court failed to properly evaluate evidence and thus invites an appellate court to step in, such a party has enormous responsibility under the law. In support reference was made to the case of Akinfe v. U.B.A. Plc (2007) 10 NWLR (Pt 1041) 185. Learned counsel stated that the appellant must demonstrate that the lower court either rejected admissible evidence or admitted inadmissible evidence and the rejection of the admissible evidence and reliance on the inadmissible evidence resulted in a miscarriage of justice.
On the evidence as to the volume of work, learned counsel stated that clauses 3 and 5 of exhibit A, spelt out the obligations of both parties and made express specification as to the value of work which will form the basis for both periodic and final payment under the sub contract. Learned counsel stated that PW1 testified that the level of work for over two months was unsatisfactory as
appellant only excavated 70,000 cubic metres as against 100,000 contained in methodology statement marked 1D1. Learned counsel submitted that the graph (curve) attached to exhibit D is an analysis of the performance of the appellant for January, February and March, which established a shortfall in its performance.
Learned counsel argued that the graphical representation in exhibit D clearly shows the performance of the appellant to be 84, 313 as against 100,000 cubic metres. Learned counsel further argued that though the appellant alleged to have done more than what was certified, it neither adduced evidence to support the contention nor did it demonstrate before the court the proof of same from the record.
On the methodology marked as 1D1, learned counsel urged the court to rely on same in deciding the value/volume of work expected to be carried out or executed by the appellant under the contract. Learned counsel contended that the appellant is not permitted in law to exploit to its advantage the deficiency it created by its deliberate refusal to sign 1D1. Learned counsel argued that a party cannot benefit from its own wrong. In support of this contention, reference was made to the following cases: C.D.C. (Nig) Ltd v. SCOA (Nig) Ltd (2007) 6 NWLR 366, Enekwe v. I.M.B (Nig) Ltd (2006) 19 NWLR (Pt.1013) 146 at 181. Welco Ind. v. Nwanyanwu Nig. Ltd (2005) 32 WLR 133 at 162. Sodipo v. Lemminkainen OY (1986) 1 NWLR (Pt.15) 220. Learned counsel therefore urged the court to hold that the attack on the lower court that it did not properly evaluate evidence in this case is unjustifiable and unfounded.
Learned counsel stated that, PW1 gave cogent and credible evidence to show that the appellant abandoned the work it was contracted to do and for which it received advance payment.
Learned counsel stated that the respondent submitted documents in support of this position and were admitted in evidence as exhibits G, H and J. Learned counsel stated that exhibit G was written on 12th June, 1997 to express concern about the withdrawal of the appellant and its personnel from site. Learned counsel contended that in response to exhibit G, the appellant wrote exhibit H wherein it gave excuses of overhauling equipments and the rainy season.
Learned counsel argued that DW1 also corroborated the evidence of PW1 on the issue of abandonment of site. Learned counsel concluded by saying that the conclusion of the lower court that appellant abandoned site cannot be faulted; and urged that the issue be resolved in favour of the respondents.
A convenient starting point will be by saying, that it is trite law that evaluation of evidence and the ascription of probative value to such evidence is essentially the primary function of the trial court. See Woluchem v. Gudi (1981) 5 SC 291, Enang v. Adu (1981) 11-12 SC 25, Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643, Igago v. State (1999) 14 NWLR (Pt 637) 1, Nkebisi v. State (2010) 5 NWLR (Pt 1188) 471. An appellant who relies on improper evaluation of evidence to set aside a judgment has the onus to identify or specify the evidence improperly evaluated or not evaluated, and to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party complaining of wrong evaluation.
The first complaint under this issue relates to certification as to the volume of work done by the appellant. Exhibit B is the valuation certificate for the months of January and February.
Learned counsel for the appellant contended that the graphs attached to exhibits D are the expected upper limit or maximum work expected to be done by the appellant as opposed to 100,000 cubic metres contained in the methodology marked 1D1. Learned counsel urged the court not to rely on 1D1 as it is a worthless document and is not binding on the parties. The respondent argued to the contrary. I have painstakingly studied exhibit D, it is a letter written to the appellant by the respondent complaining about the poor and disastrous performance of the appellant. The graphs attached to exhibit D are valuations of the work executed by the appellant. The graph (progress curves) attached to exhibit D cannot be said to be the expected upper limit of work to be carried out by the appellant. The issue of 100,000 cubic metres as a benchmark for performance by the appellant also surfaced in exhibit AB. The appellant had been insistent of having performed excellently or maintained a good performance. No attempt was made by the appellant to adduce credible evidence in support of the assertion. I do not find anything wrong with the evaluation by the trial court. I am in agreement with the finding of the trial court on low performance on page 176 as follows:
“It is apparent from evidence adduced and Exhibits that the Defendant’s performance was low as production for March was 12,214.06 cubic metres as against 62,500 cubic metres.
This is against the assurance of 100,000 cubic metres per month by Exhibit AB.”
The above finding cannot be faulted.
On the issue of abandonment of site, PW1 testified to the effect that appellant abandoned site in June 1997. The respondent tendered exhibit G, which is a letter dated 12th June, 1997 complaining about the sudden withdrawal of the appellant from site. Exhibit H is a reply by the appellant giving excuses for the withdrawal from site. On exhibit H, DW1 stated thus on page 110.
“Exhibit H is my letter. We wrote this letter when we stopped work and it is one of the letters we wrote in response to Exhibit G.”
On the abandonment of site, DW1 stated as follows on page 108:
“We never abandoned site until late July because of the rains and sometime in June when we had to wait for the cheques to clear.”
Consequent upon the foregoing, the finding of the learned trial judge on page 177 to the effect that appellant abandoned site cannot be faulted. This issue also fails and is resolved in favour of the respondent.
ISSUE THREE
The appellant argued issue number three from two perspectives. The first is in relation to the principle in Nwankwo v. Nwankwo (1995) 5 NWLR (Pt.394) 371 on formal and informal admission in relation to exhibit A. The second aspect of the issue is in relation to the counter claim made by the appellant and a claim raised based on quantum meruit. In relation to the first aspect, learned counsel for the appellant contended that the learned trial judge erred by not considering the surrounding circumstances and requiring the allegedly admitted facts (whether formal or informal) to be proved by some other evidence other than the admission itself. Substantial part of the argument advanced under the first aspect of this issue related to exhibit A, which has been treated under issue one. Having earlier determined and resolved issue one in favour of the respondent and against the appellant to the effect that exhibit A amounts to a binding sub contract between the parties, it will be a needless waste of time to reconsider the same arguments on exhibit ‘A’. In view of the manner issue one was resolved, it is still maintained that exhibit A is a binding subcontract between the parties.
Learned counsel for the appellant, anchoring his argument on Nwankwo v. Nwankwo (supra), contended that the admission made by appellant’91s counsel in exhibit M4 is informal. Exhibit M4, admitted the award of the subcontract to the appellant vide a letter dated 19/12/96, the payment of N9,400,225.00 mobilisation fee and another payment of ?42.3m in respect of 70,000 cubic metres volume of works done. An admission can either be formal or informal as stated in Nwankwo v. Kwankwo (supra). A counsel also, is in a good position to make an admission on behalf of his client. See Cappa & D’91 Alberto Ltd v. Akintilo (2003) 9 NWLR (Pt 824) 70. The admission made by counsel in exhibit M4 is an admission by a party against his interest and is the best evidence in favour of his adversary. See Ejimadu v. Delta Freeze Ltd (2007) 13 NWLR (Pt.1050) 96 at 110. The evidence of DW1 proved the informal admission made in exhibit M4. the formal and informal admissions form the state of pleadings and the evidence of parties as reproduced under issue one and exhibit M4, have gone a long way in supporting the case of the respondent. The discretion therefore exercised by the trial court in not calling further proof of the admitted facts by some other form of evidence outside that of the parties cannot be faulted.
The appellant filed a counterclaim in the lower court to the tune of N16,773,599.00. DW1 testifying in support of the counterclaim stated that the appellant encountered some difficulties when they got to site and had to do rock excavation and backfilling. PW 1 on the other hand, stated that rock excavation is not part of the sub contract awarded to the appellant. DW1 tendered exhibits Z to Z4, set of pictures in support of the counterclaim. The appellant has not shown any nexus between the pictures, exhibits Z – Z4 to the heads of claim in the counterclaim. Learned counsel for the appellant submitted that the documents that could have substantiated the counterclaim were lost to armed robbers as testified by DW 1 on page 107 of the record.
Apparently the counterclaim is not supported by evidence and I therefore see no fault in the finding of the learned trial judge on page 178 as follows:
“There are no materials before me to show the expenses incurred or what was suffered and being claimed considering the fact that what is being claimed are excavation, backfilling, services rendered, disturbance, disruption, delays and cost of demobilization from Ibadan – Lagos. It is not for the Court to speculate only Exhibit Z-Z4 were tendered which were merely pictures.”
Learned counsel for the appellant has urged us to discountenance the above finding and grant the claims of the appellant for services rendered under the contract which he termed unenforceable contract. Learned counsel argued that the appellant has been able to show parameters and evidence upon which the court can assess reasonable compensation for the jobs done. In his response, learned counsel for the respondent submitted that even from the perspective of quantum meruit, the case of the appellant is also not sustainable. Learned counsel argued that the court must be given the evidential basis by a party who seeks any relief on the basis of quantum meruit. In support of this submission reference was made to the case of S.B.N. Plc v. Onanubi (2004) 38 WRN1 at 22-26. Learned counsel submitted that for a claim to succeed on quantum meruit, it must be expressly pleaded with credible and cogent evidence in support and necessary parameters given to assess the reasonable compensation due to the claimant. Learned counsel further contended that the claim on quantum meruit was not made in good faith but merely described as such, as it was not the case pursued in the lower court. Learned counsel therefore urged the court to discountenance the claim based on quantum meruit as it is not supported by evidence.
The term quantum meruit, literally means “as much as he has earned” i.e., so much as the party doing the service deserves. It arises where a person has expressly or impliedly requested another to render him a service without specifying any remuneration but the circumstances imply that the service is to be paid for, there is an implied promise to pay on quantum meruit or where the contract is to do certain piece of work for a lump sum and he does only part of the work, he may be able to claim on quantum meruit.
See Warner & Warner v. F.H.A. (1993) 5 NWLR (Pt 298) 148 at 176. A claim based on quantum meruit should therefore be based upon a valid contract between the parties. See Olaoya v. Obafemi Awolowo University (1997) 7 NWLR (Pt 516) 204. In the instant case the appellant has not adduced cogent evidence in support of the claim based on quantum meruit and has not provided reasonable parameters with which to assess reasonable compensation due. I am indeed in agreement with the learned counsel for the respondent that the claim of the appellant is not brought bona fide upon quantum meruit basis, because the case in the lower court was never pursued based on quantum meruit. The claim on quantum meruit is only being canvassed now on appeal.
It is trite that a party cannot maintain on appeal a different case from that pursued at the trial. See Oshoboya v. Amida (2009) 18 NWLR (Pt 1172) 188. Consequent upon the foregoing, the claim of the appellant based in quantum meruit is devoit of merit, it is hereby discountenanced and accordingly refused. Issue number three is also resolved against the appellant, in favour of the respondent.
Having resolved all the three issues against the appellant and in favour of the respondent, the appeal is totally lacking in merit and substance. Consequently, it is hereby dismissed. The judgment of the Lagos State High Court delivered on 8th December, 2006 is hereby affirmed. The appellant is to pay the respondent costs assessed at N30,000.00.
ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege to read in advance the judgment just delivered by my learned brother, Jauro J.C.A. I agree with his reasoning and conclusion that this appeal is unmeritorious. I also dismiss the appeal with N30,000.00 costs in favour of the respondent against the appellant.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance the lead judgment just delivered by my learned brother Jauro, JCA. I am in full agreement that the appeal is devoid of merit and deserves an outright dismissal. I adopt the entire reasoning and conclusion therein as mine.
I accordingly affirm the judgment of Idowu, J delivered on the 8th December 2006 and order that the appeal be dismissed for lacking in merit. I adopt other consequential orders in the judgment including the one as to costs.
Appearances
B. Dambo EsqFor Appellant
AND
A. K. Ayoola-Johnson Esq with Jamiu Akolade Esq and Adaku Ufere EsqFor Respondent
