MR. WILSON ESI v. CNPC/BGP INTERNATIONAL & ANOR
(2014)LCN/7702(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of April, 2014
CA/B/290/2005
RATIO
EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN A PROCEEDING
The burden of proof is always on that party whose case will be adversely affected if the particular facts in issue are not proved. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
TORT: ASSAULT; ASSAULT AS A CIVIL MATTER
Assault is a civil tort for which the aggrieved person is entitled to damages. Proof in civil matters is on a balance of probabilities. Assault or battery in civil matters involves inflicting some degree of force on a person negligently or intentionally. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
Between
MR. WILSON ESI
(Carrying on business under the name and style of Willy Karo Enterprises)Appellant(s)
AND
1. CNPC/BGP INTERNATIONAL
2. MR. WANG ZHONG HUARespondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State delivered by Justice G.E Gbemre, on the 15/3/05 wherein the learned trial Judge dismissed the claims of the appellant in its entirety and awarded N10,000.00 (ten thousand naira) as damages in favour of the respondents. Below are the facts that led to this appeal:
The 1st respondent company on 10/02/2002 contracted the appellant to supply 500 units of 5Kg exact anchors vide LPO NO: 101449 dated 10/02/2002.
The appellant claimed that he duly supplied the anchors as per the terms on the LPO and that the anchors were received by officials of the 1st respondent’s company. However, the appellant was not paid the contract sum. He swore that after the supply, inspection and confirmation of the goods by officials of the 1st respondent’s company he processed his waybill and invoice. He attached the waybill and invoice to the LPO and forwarded same to the 2nd respondent for approval of payment but 2nd respondent refused to approve payment of the contract sum.
The appellant swore that he visited the 2nd respondent’s office to plead with him but that the 2nd respondent pushed him out of the office, ordered the mobile policemen to push him out and called him and other Nigerians, dubious. Consequent to this, the appellant instructed his lawyer to write a letter of demand to the respondents. The letter was reported to be delivered. Upon the refusal of the respondents to pay the contract sum, the appellant filed an action before the High Court of Justice, Bomadi division, Delta State.
The Appellant commenced the action by a writ of summons on the 11/6/02. Pleadings were duly exchanged. The respondents also filed a counterclaim against the appellant and both parties at different times, amended their pleadings. The statement of claim is dated 26/01/04, the amended statement of defence and counter-claim is dated 20/2/04 and the reply to amended statement of defence and defence to counter-claim is not dated. The appellant claimed against the respondents as follows:
28. Against the 1st defendant, the sum of 1 million two hundred thousand naira being the contract sum in respect of a contract to supply 500 units of 5kg exact anchors covered by a local purchase order No. 101449 issued by the 1st defendant to the plaintiff on the 10th day of February 2002. The plaintiff duly supplied the said anchors in strict compliance with the conditions contained in the aforesaid LPO inclusive of any variation. The 1st defendant who has their base at place of peace Ekpan a place within the jurisdiction of this Honourable Court has however refused and/or failed to pay the said contract sum despite repeated demands.
The plaintiff also claim 10% per month as interest on the said contract debt from 10th day of March 2002 till judgment is delivered in this suit.
29. The sum of 5 million naira being damages suffered by the plaintiff when the defendant in his course of demanding for payment for the contract above was assaulted, humiliated, embarrassed, insulted dehumanized by the 2nd defendant at Ogriagbene base of the 1st defendant sometime in April, 2002.
The respondent counter-claimed against the appellant as follows:
a) The sum of N2, 000.00 (Two Thousand Naira) daily being money paid to 2 soldiers, 2 mopol, 2 navy (naval men) and 1 Diamond security personnel daily at the rate of N300.00 each and N200.00 for the Diamond security personnel who kept watch over the exact anchors the plaintiff dumped near the 1st defendant’s Jetty Area, from the 13th day of April, 2002 till judgment is delivered in this suit.
b) The sum of N5,000,000.00 (Five Million Naira) as damages suffered by the 2nd defendant for humiliation meted out to him when the plaintiff referred to him as “hungry man” and vowed to set process in motion to repatriate him to China. The 2nd defendant’s loss the respect of all Nigeria Staff of the 1st defendant present.
c) The sum of N10, 000,000.00 (Ten Million Naira) as general damages for breach of contract.
d) Interest on the said sum claimed in paragraph “a” above at the rate of 10% Per annum from 13-4-2002 until judgment and thereafter until final payment.
The appellant testified in proof of his claims and called one witness while the respondents called five witnesses as follows:
PW1- Nzeako Godfrey- former Purchasing Officer in the 1st Respondent’s company
PW2- The Appellant himself
DW1- Friday Ehi Omojale- former storekeeper in the 1st Respondent’s company
DW2- Paul- camp secretary in 1st Respondent’s company
DW3-Jerry Nwaknaka- Senior Observer in the recording section/Geophysist
A total of six (6) exhibits were tendered. In a reserved judgment, the learned trial judge dismissed the Appellant’s claims as lacking in merit.
The appellant, dissatisfied with the decision filed a notice of appeal on the 10/5/05. The Appellant’s brief of argument is dated 10/7/06, it was deemed filed on the 1/3/07. The Respondents’ brief of argument was filed on 11/2/13 it was deemed filed on 4/3/13.
In the brief settled by C. A Duku Esq, the Appellant raised four issues for determination as follows:
1. Whether the learned trial judge was right in law when he held that the plaintiff did not supply the anchors within time in view of the evidence adduced by the parties to the action at the trial court.
2. Whether the learned trial judge made proper evaluation of the evidence before it and drew proper inference therein having regards to the evidence and state of pleadings before it.
3. Whether the learned trial judge was right in law when he dismissed plaintiff/appellant claim on assault.
4. Whether the learned trial judge was right in law when he awarded general damages to the defendants/respondents on the counter-claim.
In the brief filed by F.O. Olokor ESQ for the Respondents, the following five issues were raised for determination:
1. Whether the appellant complied with a fundamental terms in the contract entered into with the 1st respondent?
2. Whether the appellant who was in breach of a fundamental term in contract entered into with the 1st respondent can bring an action to enforce the terms/conditions of the contract.
3. Whether the failure and/or inability of the appellant to comply with a fundamental term in the contract entered into with the 1st respondent entitles the 1st respondent to repudiate same.
4. Whether the respondent is entitled to the grant of the relief as stated in paragraph 37 (c) of the respondent’s amended statement of defence and counter-claim.
5. Whether the learned trial judge was right in law when he dismissed appellant’s claim for assault.
The issues formulated by the appellant’s and the respondent’s counsel are similar. I shall adopt the issues formulated by the appellant’s counsel as they are more concise. I shall take issues 1 and 2 together.
ISSUE 1 & 2
Whether the learned trial judge was right in law when he held that the plaintiff did not supply the anchors within time in view of the evidence adduced by the parties to the action at the trial court.
Whether the learned trial judge made proper evaluation of the evidence before it and drew proper inference therein having regards to the evidence and state of pleadings before it.
The learned appellant’s counsel on these issue posited that pleadings do not constitute evidence, and that any averment in a statement of claim or defence not proved by oral evidence is deemed abandoned. He cited Olorunfemi V. Asho (2000) FWLR Pt. 20 Pg. 654 at 666; Adake V. Akun (2003) FWLR Pt. 176 Pg. 625 at 633; Iron bar v. CRB RDA (2003) FWLR Pt. 165 Pg. 375 at 389; Akanmu v. Adigun (1993) 7 NWLR Pt. 304 Pg.218. Counsel argued that there was no scintilla of evidence from the respondent at the trial Court about the date the anchors were supplied or allegedly dumped in the respondents’ yard by the appellant.
Counsel contended that the appellant had proved that he supplied within time, and that this fact was not controverted by the defendants on oath. He argued that the respondents’ witnesses merely touched on their respective roles in the 1st respondent company and did not prove that the plaintiff dumped any anchor near the respondent’s jetty a month after the expected supply date. He further argued that having failed to controvert the appellant’s assertion as to supply and inspection, the appellant’s story is deemed correct. He cited Pascutte v. Adecentro Nig. Ltd (1997) 54 LRCN Pg. 2657 at 2683.
Appellant’s counsel argued that the assertion that the contract was terminated had no plank to rest as shown from the evidence and to that effect, the contract was still subsisting and was never repudiated. He further posited that the respondents had failed to prove repudiation of the contract. He cited Section 135(1) & (2) and 136 of the Evidence Act; Adake v. Akun (2003) FWLR Pt. 176 Pg. 625 at 634, Ecyi v. Nnamani (2000) FWLR Pt. 13 Pg. 2159 at 2176; Olaiya v. Olaiya (2002) FWLR Pt. 109 Pg. 1588 at 1610. Counsel submitted that the account given by the Appellant at the lower court was more credible than that of the respondents which was in bits and did not touch on the fundamental issues of date of supply, manner of supply and reason why the contract sum was not paid.
The respondents’ counsel on this issue argued that Exhibit A-the local purchase order (LPO) was the contract entered into by the parties and that parties were bound by a written agreement or contract entered into. He cited Anyaegbunam v. Osaka (2000) FWLR Pt. 27 Pg. 1942 at 1954; Idoniboye-obu v. NNPC (2003) FWLR Pt. 146 Pg. 959 at 1007. Learned counsel argued that the appellant cannot orally introduce or imply any term(s) not in Exhibit A and cited Kwara Hotel Ltd v. Ishola (2002) FWLR Pt. 135 Pg. 757 at 770-771. He argued that the appellant’s attempt to introduce evidence to the effect that time was not of essence and that the supply date of the anchors was not a fundamental term of the contract is tantamount to varying or altering the terms of the contract.
Counsel argued that when a contract is made subject to the fulfillment of certain specified terms and conditions the contract does not become binding on parties until the specified terms and conditions are complied with. He cited Tsokwa Oil marketing v. Bank of the North Ltd (2002) FWLR Pt. 112 Pg. 1 at 51; Remm Oil Services Ltd v. Endwell Trading Company Ltd (2003) FWLR Pt. 152 Pg. 98 at 106. Learned counsel further argued that the appellant having failed to comply with the terms of the contract cannot bring an action to enforce same. He cited Balogun v. Alli-Owe (2000) FWLR Pt. 14 Pg. 2335 at 2340. Counsel contended that it was within the respondents’ right to treat the appellant’s breach of the contract as a repudiation of same. He cited Manya v. Idris (2000) FWLR Pt. 23 Pg. 1237 at 125.
Respondents’ counsel contended that a party who seeks to enforce his right under a contract must himself show that he has performed his own side of the contract and thus in a position to insist on the other party’s performance. He cited Oneyemelukwe v. L.D. Alberto & Co Ltd (2001) FWLR Pt. 83 Pg. 2166 at 1270; Mosfreg Ventures Ltd v. Minister of Internal Affairs (2003) FWLR Pt. 147 Pg. 1213 at 1222.
It is clear from the evidence and pleadings of both parties at the lower court that there was an existing contract between the 1st respondent company and the appellant. What is in contention is whether the appellant complied with the terms of the contract. A careful perusal of Exhibit A the LPO on Pg. 20 of the Record issued on the 10/2/02 by the 1st respondent for supply of the 500 exact anchors had written on it “Any delay LPO will be cancelled”. It was also clearly indicated that the anchors must be supplied by 10th of March, 2002 exactly a month after the LPO was issued. In this vein, the resolution of this issue lies in the question of whether there was delay in the delivery of the anchors.
The appellant in his evidence before the lower court at page 47 of the record stated that:
“I duly complied with the instructions contained in Exhibit A”.
At page 52 of the record, appellant stated that:
“I supplied the exact anchors within the time specification…”
Further at page 53 appellant said:
“I supplied the items according to the terms of Exhibit ‘A'”.
PW1 who was a staff at the 1st defendant and the purchasing officer who issued the L.P.O also gave evidence to the fact that the supply was done within time. At page 45 of the record, he stated that:
To my knowledge this procedure was complied with in this contract. The goods were supplied within time. The materials were supplied to the 1st defendant base at Ogriagbene”
On the other hand, DW2 at page 56 of the record swore that:
“I have not seen exhibit A before”
The respondents’ letter at page 97 of the record is instructive about the date of supply. The Respondents cancelled the contract by their letter dated 15/3/2002.
The burden of proof is always on that party whose case will be adversely affected if the particular facts in issue are not proved. In the instant case, the burden of proof is on the appellant because he is the one seeking relief for non payment of the contract sum. The burden of proving date of supply can never be on the respondents because failure to prove same will not affect them negatively.
See S. 135 of the Evidence Act.
The learned trial judge at pages 80 and 81 of the record held that;
“It is noteworthy at this stage to state that nowhere in the evidence of the plaintiff or his witness did he unequivocally state that he supplied within the stipulated period. All he sought to state was that he supplied… From the evidence before me, and in view of my observation as above I hold that the plaintiff did not supply within time and the mere dumping of the goods in the defendants yard after the expiration of the period, without proper inspection and receipt of same by the defendants cannot constitute supply in terms of the contract”
I have read the records and cannot bring myself to agree with the conclusions of the learned trial judge. It is obvious from the evidence of P.W.1 and the Appellant that the Appellant supplied the anchors to the Respondents within the time stipulated in the LPO. There is no other evidence to contradict the assertion on the Appellant and P.W.1 in this regard.
I agree with the appellant’s counsel that the respondents’ witnesses merely touched on their respective roles in the respondents company. The witnesses did not prove the respondents’ contention that the appellant dumped the anchors near the 1st respondent’s jetty a month after they were supposed to have been supplied as alleged. It is trite principle of pleadings that where a party avers certain facts in his pleading, such party shall lead evidence to the existence of the said facts and where he fails to do so, such averment will be of no moment. See Adegbite v. Ogunfaolu (1990) 4 NWLR Pt. 146 Pg. 578; Kalio v. Woluchem (1985) 1 NWLR Pt. 4 Pg. 610 and Okagbue v. Romaine (1982) 5 SC 13.
I believe the evidence of the Appellant that the 2nd Respondent deliberately refused to officially accept the anchors from him and the Appellant therefore could not produce documentary evidence of the date the anchors were supplied by him. From the evidence of the Appellant he was obviously a victim of power play between the officers of the 1st Respondent’s company and the 2nd Respondent. I have to humbly state that it is a perverse conclusion by the learned trial judge in the face of uncontradicted sworn testimony of P.W.1 and the Appellant to hold that the Appellant or his witnesses did not give evidence that the Appellant supplied within time. I find from the record that the Appellant was not in breach of contract.
I am of the humble view that issues 1 and 2 should be resolved in favour of the Appellant. It is hereby so resolved.
ISSUE 3
Whether the learned trial judge was right in law when he dismissed Appellant claim for damages as a result of assault on him.
The appellant’s counsel on this issue cited Section 138(1) of the Evidence Act, which provides that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal it must be proved beyond reasonable doubt. Counsel cited Nigerian Air Force v. Obiosa (2003) FWLR Pt. 148 Pg. 1224 at 1254 and contended that the appellant proved his case of assault against the 2nd defendant and was never challenged on oath at the trial. Counsel further submitted that apart from the weight of the evidence adduced by the appellant, the hostile attitude of the 2nd respondent to the appellant as shown in the appellant’s evidence supports the case of assault as alleged by the appellant. Counsel argued that the degree of the assault is not necessary in determining whether an assault took place or not. Counsel submitted that the degree goes to quantum of damages to be awarded.
The respondents’ counsel submitted that the trial judge was right in law to have dismissed the appellant’s claim for assault, as the commission of a crime by a party to any proceeding must be proved beyond reasonable doubt. He cited Eya v. Qudus (2003) FWLR Pt. 106 Pg. 1089 at 1121-1122. He further argued that the alleged assault which is a criminal offence was not reported to the police which is the agency of Government statutorily empowered to investigate criminal offences nor were the respondents arraigned before any court of competent jurisdiction or tried and convicted for the alleged offence of assault.
In his evidence on oath at pages 48 of the record the appellant stated that:
“After a lot of plea with him, he pushed me out of his office accusing me and other Nigerians of being dupous (sic). He now ordered a Mobile Policeman to push me out of the camp. I suffered a lot of degradation, dehumanization and insulted in the presence of other contractors. As at this time other contractors were bringing in anchors and the 2nd defendant was receiving them”
The learned trial judge at page 82 of the record stated that:
“The other issue raised is that of assault on the person of the plaintiff by the 2nd defendant. The counsel to the defendants rightly drew my attention to the fact that when a commission of any crime is in issue, the standard of proof is proof beyond all reasonable doubt. I have looked at the totality of the evidence, and watched the plaintiff and I hold that the standard of proof proferred in support of this claim has fallen short of what is necessary to establish it. In criminal cases, you have to establish a prima facie case, before the defence is called upon to state its own case. Again I resolve this issue against the plaintiff, because apart from the mere ipsi dixit of assault, nothing more was presented. This cannot be proof beyond reasonable doubt”.
I am amazed that the learned trial judge has allowed the argument of learned Respondent’s counsel to becloud him to forget that assault can be both a civil and criminal wrong. Assault is a civil tort for which the aggrieved person is entitled to damages. Proof in civil matters is on a balance of probabilities. Assault or battery in civil matters involves inflicting some degree of force on a person negligently or intentionally. In this case, the Appellants claim that the 2nd Respondent pushed him out of his office and ordered mobile policemen to push him out of the camp. There is no evidence on record to contradict that statement of the Appellant. He claimed that by the act of the Respondents, he felt degraded, dehumanized and insulted in the presence of the other contractors. In this case, since none of the Respondents’ witnesses denied what occurred, the Appellant need only adduce minimal evidence which must be accepted by this court. See Egbenike & Anor. V. African Continental Bank Ltd. (1993) 2 NWLR Pt. 375 Pg. 34; Buraimoh v. Bamgbose (1989) 3 NWLR Pt. 109 Pg. 352.
The resort by the learned trial judge to holding the Appellant up to prove a criminal assault beyond reasonable doubt is completely misconceived. This issue is resolved in favour of the Appellant.
ISSUE 4
Whether the learned trial judge was right in law when he awarded general damages to the Respondents on the counter-claim.
Appellant’s counsel submitted on this issue that a counter-claim to all intents and purposes is a separate action. He cited Usman v. Garke (2003) FWLR Pt.177 Pg. 815 at 833. He further submitted that a counter-claim is a cross action which must be proved at the hearing of the case. He cited Obmiami brick & stone (Nig) Ltd v. A.C.B LTD (1992) 3 NWLR Pt 229 Pg 229 at 298. Counsel submitted that there was no evidence led on the counter-claim by the respondent nor did the respondent urge his lordship by way of evidence on oath for judgment and having failed to lead such evidence the counter-claim in its entirety is deemed abandoned as a counter claim like an original action is subject to the rules of pleading and evidence. He cited Akamu v. Adigun (1993) 7 NWLR Pt. 304 Pg. 218. Counsel further submitted that there was no evidence led in proof of the said counter claim that can be evaluated by the learned trial judge. He insisted that the fact that the 1st respondent succeeded in his defence does not translate to the success of the counter-claim as the counter-claim must be proved by way of evidence that he suffered damages as a result of any breach.
Respondents’ counsel stated that the respondent was entitled to the grant of the relief awarded in its defence and counter-claim as the award as nominal damages for breach of contact against the appellant is legally justifiable. Counsel contended that having established a case of breach of contract it was entitled to the award on the strength of his counter claim without necessarily establishing and/or leading evidence to establish the nature and quantum of damages suffered. He cited Manya v. Idris (2000) FWLR Pt. 23 Pg. 1237 at 125.
Before going into the issue of damages, did the respondent at any time during trial lead evidence to support its counterclaim? The respondent’s amended statement of defence and counterclaim at pages 33-40 of the record lumped up both respondents’ defence and counterclaim.
Paragraph 23 of the respondents’ amended statement of defence and counter-claim at page 38 of the record reads as follows:
“In response to paragraphs 20 and 21 of the statement of claim, the defendants state that the plaintiff never supplied any exact anchors to the 1st defendant he dumped some anchors near the defendant’s jetty area and never left same in the custody of anybody. The defendants will rely on their solicitor’s letter of 30-4-2002 in reply to the plaintiff’s solicitor’s letter in which the plaintiff was advised to remove the anchors the way he dumped them, at the trial of this suit”.
Exhibit E, which was a reply by defendants to plaintiff’s letter for payment stated that:
“Our client further instructs that on or about the 13th day of April, 2002 one Mr. Wilson Esi dumped a few number of exact anchors near our client’s base jetty at ogriagbene”.
At paragraph 20C of the same statement of defence and counterclaim on page 37 of the record, the respondents stated that:
“The defendants state that they never wanted to hold any meeting with the plaintiff if not that their counsel T.K.O Ugwuadu Esq. approached, begged and appealed to the managing director on behalf of the plaintiff to direct the 2nd defendant to listen to the plaintiff and know whether there is any way the 1st defendant can make use of the exact anchors the plaintiff belatedly dumped at the 1st defendant’s campsite at Ogriagbene despite the fact that their use had been over taken by events.”
The learned trial judge at page 82 of the record on the respondents’ counterclaim held that:
“The next matter is to consider the counter claim of the defendant. However the counsel to the defendants has abandoned his claims in paragraph 37(a), 37 (b) and 37(d). These claims are accordingly dismissed. The only claim left to consider is the sum of 10 Million Naira being general damage for breach of contract. Defendants did not provide any materials at all to enable this Court have a glimpse of the type of pecuniary damages or loss suffered by them. However, since it is general damages, this court has the discretion to award or not to award, and the quantum is also at the court’s discretion. Having held that the plaintiff was in breach of contract, it would flow naturally that damages should be awarded to assuage the 1st defendant…”
The only counter claim as settled by the trial judge was one for breach of contract for failure to supply the anchors on time. Having held while determining issues 1 and 2 that indeed the Appellant was not in breach of contract, the counter-claim for damages by the Respondents cannot stand. In the circumstances, this issue is resolved in favour of the Appellant. The Appellant is entitled to and awarded the first head of claim as set out in paragraph 28 of the amended statement of claim. This is for the sum of N1, 200,000 (One Million, Two Hundred Thousand Naira Only). He is also entitled to interest at 10% of the contract sum till the said amount is paid. In respect of the 2nd head of claim, the Appellant is awarded general damages in the sum of N100,000.00 (One Hundred Thousand Naira only).
The judgment of Hon. Justice G. E. GBEMRE delivered in Suit No. HCB/19/2003 on 15th March 2005 and orders contained therein is hereby set aside. I replace same with the orders set out above in this judgment. Appeal Allowed. N50,000 costs to the Appellant against the Respondents jointly.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the judgment just delivered by my learned brother, the HON. JUSTICE H. M. OGUNWUMIJU, JCA, I have no cause to disagree with the reasoning and conclusion reached therein, to the effect that the present appeal succeeds and it’s allowed by me. I abide by all the consequential orders made therein including the award of costs of N50, 000.00 to the Appellant against the Respondents, jointly.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has dealt with the pertinent Issues that call for determination in the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I have nothing useful to add thereto.
Accordingly, I too, find the appeal to be meritorious and allow the same. The judgment of the lower court delivered on 15/3/2005 is set aside in its entirety; and is hereby replaced with orders as set out in the lead Judgment. I also abide by the order as to costs made in the lead Judgment.
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Appearances
E. K. AGBROKO holding C.A. DUKU’s briefFor Appellant
AND
F. O. OLOKORFor Respondent
