HOTEL & CATERING SERVICES LIMITED v. UNCLE T. FURNITURE COMPANY NIGERIA & ANOR
(2018)LCN/12111(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of November, 2018
CA/MK/94/2012
RATIO
CONTRACT: WHETHER A PARTY CAN EVADE OBLIGATION
“The law is also settled that a party who has benefited from a contract cannot evade his obligations under the contract by relying on an allegation of illegality. For such an illegality to avail the party, if at all, it must be ex facie. In WCC Ltd V Batalha (2006) 9 NWLR (Pt. 986) 595 at 616, 620, the Supreme Court held: ‘The law is also settled that whoever intends to claim illegality as a defence must not only plead the illegality, he is also required to set out the particulars of the illegality in his pleadings. This requirement is mandatory in all cases where the contract is not ex facie illegal and the question of illegality depends on the circumstances of the case.’ See also on this, the decisions in: Ukah V Onyia (2016) LPELR-40025(CA) 23; Brewtech Nig Ltd V Akinnawo (2016) LPELR-40094(CA) 25; Okechukwu V Onuorah (2000) 12 SC (Pt. II) 104 at 109; Agbachi V Azubuike (2010) LPELR-3646(CA) 35; Uduma V Arunsi (2010) LPELR-9133(CA) 89.” PER JUMMAI HANNATU SANKEY, J.C.A.
CONTRACT: WHETHER A PARTY IS BOUND BY THE AGREEMENT OF A CONTRACT
“It is clear that the appellant benefited from the agreement that it is now attacking. A party who has derived benefit from an agreement is not permitted to turn round to question the legality or the validity of the same agreement as that would be unconscionable and would amount to approbating and reprobating. See Fakarode V Attorney – General, Western State (1972) All NLR (1) 178 and B.B. Apugo & Sons Ltd V Orthopedic Hospitals Management Board (OHMB) (2016) 13 NWLR (Pt. 1529) 206. Such a person can not even be allowed to contend that the other party is not a juristic person. See Chanchangi Airlines (Nig) Ltd v African Petroleum Plc (2015) 4 NWLR (Pt. 1449) 256, 274 – 275.
The trial Court was therefore right in rejecting the contention of the appellant.” PER JOSEPH EYO EKANEM J.C.A
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
HOTEL & CATERING SERVICES LTD Appellant(s)
AND
1. UNCLE T. FURNITURE CO. (NIG)
2. ANTHONY NMOR Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the Judgment of the High Court of Justice Benue State sitting in Makurdi, Coram: Kaka’an J.
The claim of the Respondents (as Plaintiffs) before that Court was for a declaration that the Plaintiffs were entitled to be paid the sum of N651, 480.00k being money owed the Plaintiffs by the Defendant (now Appellant) as charges for services rendered, an order for payment of the said sum, plus 10 per cent interest on the Judgment debt from Judgment until the debt is liquidated. In the statement of claim, the Plaintiff pleaded that the Defendant awarded various contracts to the 1st Respondent who executed same through the 2nd Respondent. The Defendant filed a statement of defence which was subsequently amended, and also counterclaimed against the Plaintiffs. The Plaintiffs responded by filing a reply and a defence to the counterclaim.
In proof of their claim, the Plaintiffs adduced evidence through one witness, PW1, while the Defendant also called a lone witness, DW1.
Thereafter, Counsel for the parties exchanged written addresses which they adopted in Court. Judgment was subsequently entered in favour of the Plaintiffs for the reduced sum of N372, 480.00, while the Defendant’s counterclaim was dismissed outright. Aggrieved, the Defendant filed a Notice of Appeal on the 14-07-11 wherein she complained on five grounds.
The brief facts of the case before the trial Court were as follows: The 1st Respondent was contracted by the Plaintiff to make and service furniture in the Appellant?s Hotels at Makurdi and Abraka in the period between the years 2006 to 2008. These various contracts were executed through the 2nd Respondent and the Appellant took delivery of the finished products. Thereafter, the Respondents claim that they were owed payments for the outstanding contract sum of N651, 480.00.
The Appellant on her part denied owing the Respondents any sum at all on ground that the quality of the jobs executed by the 2nd Respondent and the level of his honesty to the Appellant had fallen below the standard expected of the 2nd Respondent.
The Appellant also contended that the 2nd Respondent had cheated her by using substandard and cheap wood for the jobs executed and yet charged high rates above the prevailing market prices. She also accused the 2nd Respondent of using her own materials for the jobs and still charged the Appellant for them. In addition to contesting the claim, the Appellant contended that the 1st Respondent is not a juristic person capable of suing and being sued, not being a company registered under the Companies and Allied Matters Act. The Appellant therefore counterclaimed against the Respondents as follows, for:
i) An order compelling the defendants to pay N500, 000.00 to the plaintiff, being money for the IOUs standing against the defendants.
ii) An order compelling the defendants to pay N176,000.00 to the plaintiff being money for all the plaintiff’s materials the 2nd defendant used for doing jobs for the plaintiff which the defendants were paid for including the cost of those materials.
iii) An order compelling the defendant to pay N173,250.00 to the plaintiff being money for the substandard planks the 2nd defendant bought at N850.00 per plank and collected N2, 500.00 per a plank thereby cheating the plaintiff of the sum of N1, 650.00 per plank which, multiplied by 150 planks, amounts to N173, 250.00.
iv) General damages in the sum of N500, 000.00.
In denying the counterclaim, the Respondents filed a reply to the statement of defence and a defence to the counterclaim. The Appellant subsequently amended her statement of defence and counterclaim and the Respondents filed a consequential amendment to their reply to the statement of defence and defence to counterclaim of the Appellant. In proof of their claim, the Respondents adduced evidence through PW1, (the 2nd Respondent) and the Appellant also adduced evidence through one witness, DW1 (its officer). At the close of evidence, written addresses were ordered and same were filed by the parties. Judgment was subsequently delivered on May 13th 2011 in favour of the Respondents. Aggrieved, the Appellant filed this Appeal wherein she complained on five grounds.
At the hearing of the Appeal on 20-09-18, M.O. Ozueh Esq. adopted the Appellant’s Brief of argument filed on 04-07-13, deemed filed on the same date and settled by M.O. Ozueh Esq., in urging the Court to allow the Appeal, set aside the decision of the lower Court, dismiss the claim of the Respondents and grant the reliefs in the counterclaim. The following additional authority was relied upon for the submissions under issue one of the Brief: Nwankwo V Yar’Adua (2010 LPELR-2109(SC) per Onnoghen, JSC (now CJN). It is also submitted that where a Respondent does not join issues with the Appellant in respect of an issue in his Brief of argument, the issue is deemed conceded.
In turn, D.S. Obademi Esq., adopted the Respondents? Brief of argument filed on 30-09-16 and settled by G.I. Enebeli, Esq. in urging the Court to dismiss the Appeal and affirm the Judgment of the lower Court.
The Appellant in his Brief of argument distilled the following two issues for determination from the five grounds of appeal:
1. Whether the learned trial Judge was right to rely on Exhibits 1-3 to hold that the Respondent was entitled to recover the amounts contained therein from the Appellant and whether the 1st Respondent have (sic) proved its legal personality to enter a valid and binding contract with the Appellant. (Grounds 2, 4 & 5)
2. Whether the learned trial Judge misconceived and was unable to comprehend the case and the evidence in this case and did he do a proper evaluation of evidence before he gave Judgment in favour of the Respondents and in the circumstances was the learned trial Judge right to have dismissed the unchallenged counterclaim before him. (Grounds 1 and 3)
The Respondent also distilled two issues for determination as follows:
a) Whether the respondents established their case to be entitled to judgment of the Lower Court. (Grounds 2, 3 and 4)
b) Whether the appellant was entitled to the entire reliefs sought from the Lower Court. (Grounds 1 and 5)
Both sets of issues are similar in content. However, due to the inelegant drafting of the issues of the Appellant, I adopt the issues framed by the Respondents with slight modifications.
Issue one – Whether the Respondents established their claim as well as the juristic personality of the 1st Respondent to warrant the award of Judgment in their favour.
The summary of the submission of the Appellant under this issue is that the Respondents did not prove their case as required by law and in particular did not prove that the Appellant was indebted to them.
The Appellant also contends that the learned trial Judge was in error when it did not strike out the name of the 1st Respondent whose juristic personality was not established.
The Appellant submits that the claim of the 1st Respondent was that it was awarded a contract by the Appellant which it executed through the 2nd Respondent and thereafter made demands for the payment of the contract sum to no avail. However, in response in her pleadings, the Appellant challenged the juristic personality of the 1st Respondent and thereafter raised and canvassed same in the final address of Counsel. In addition, it is contended that the invoices (Exhibits 1-3) upon which the Respondents founded their cause of action, do not bear the 1st Respondent’s registration number as required by law. Therefore, that the learned trial Judge ought not to have relied on those invoices in finding in favour of the Respondents as the Respondents cannot maintain a cause of action on illegal documents in respect of a contract awarded to an un-registered company. It is also contended that the Respondents did not prove that the Appellant owed them the sums of money claimed.
In response, the Respondents contend that the case of the Respondents as Plaintiffs was that between 2006 and 2008, the Appellant (Defendant) contracted the 1st Plaintiff to make and service different types of furniture for the Appellant’s Hotels situate at Makurdi and Abraka. The Appellant took delivery of the furniture but had a total outstanding sum of N651, 4801.00 to pay to the Respondents. The Appellant did not deny the contractual relationship between her and the Respondents. Instead, her contention was that the jobs for which the Respondents claimed were substandard and that the 2nd Respondent cheated her by buying cheap wood and charging high prices for same. Secondly, the Appellant alleged that the 1st Respondent had some IOUs amounting to the sum of N500, 000.00 collected by and standing against the 2nd Respondent. Thirdly, that the invoices upon which the claim of the Respondents was based are illegal as the registration number of the 1st Respondent is not stated thereon. Fourthly, that the 1st Respondent is not a juristic personality.
Counsel for the Respondents however submits that a party who benefits from a contract cannot be heard to complain of its illegality.
The Appellant had previously honored Exhibits A1-A25, being invoices in the name of the 1st Respondent, without making an issue of the absence of a registration number on the documents. DW1, the Appellant’s sole witness, acknowledged this fact in admitting the Appellant’s indebtedness to the Respondent. Therefore, the Appellant is indebted to the Respondents to pay for finished work which the Respondents executed and the Appellant took delivery of. Thus, it is submitted that facts admitted need no further proof and a party who benefited from a contract/agreement cannot be allowed to turn around and allege that same is tainted with illegality, having enjoyed the benefits thereof. Reliance is placed on Udeagu V BCC PLC (2005) All FWLR (Pt. 276) 720 at 728, paras P-F; Globestar Engr. Co. Nig. Ltd V Malle Holdings Ltd (2005) All FWLR (Pt. 256) 1309 at 1326; & Edilco (Nig) Ltd V UBA Plc (2000) All FWLR (Pt. 21) 791 at 837.
It is further submitted that DW1 admitted that the Appellant had outstanding invoices for which payment had not been made at page 278 lines 16-19 of the Record, but did not produce the invoices in Court.
Therefore, Counsel invoked the presumption of law that evidence which is withheld is unfavourable to the party withholding it (Section 167(d) of the Evidence Act, 2011). Hence, the Court is urged to hold that the invoices which the Appellant refused to tender are the same as Exhibits 1 to 3 tendered in evidence by Plaintiffs. Udeagu V BCC Plc (supra) at 723, paras G-H is relied on.
Finally, Counsel submits that even assuming that the 1st Respondent is not a juristic personality, since the Appellant acknowledged awarding the contract to the 2nd Respondent, she is liable to pay for the finished work which the 2nd Respondent executed and which the Appellant took delivery of and has since put to use. The Court is therefore urged to resolve this issue in favour of the Respondents.
Findings:
It is not in dispute that the Appellant and Respondents entered into a contractual relationship in which the Appellant requested the 1st Respondent through the 2nd Respondent to make different types of furniture for the Appellant?s Hotels situate at Makurdi and Abraka in the years 2006 to 2008. The Respondents claimed that the Appellant took delivery of the furniture but had an outstanding sum of N651, 480.00k to pay to them. Throughout the trial, the Appellant did not deny the contractual relationship between her and the Respondents. Trouble however started brewing between the parties when the Respondents issued letters of demand for the outstanding payment of the sum of N651, 480.00k for services rendered, but not paid. Owing to the Appellant’s continued failure to pay the amount claimed, the Respondents issued another letter withdrawing their services to the Appellant. This represents in some detail the relative positions of the parties as regards the facts of the matter as per their copious pleadings and as buttressed by their evidence before the trial Court.
The 2nd Plaintiff testified for himself and on behalf of the 1st Plaintiff and tendered Exhibits 1, 2 and 3 among others while DW1, Theophilus Emakpor, testified on behalf of the Defendant and also tendered Exhibits A, B, C, D and E. The Plaintiffs claimed that even though they had executed the jobs which the defendant had contracted them to undertake and even though the Defendant had received their charges as in Exhibits 1, 2 and 3, taken possession of the finished products and are making use of them, she has failed, refused and/or neglected to pay. Exhibits 1, 2 and 3 comprise of the Plaintiffs’ invoices in this regard.
Evidence was led at the trial that established that the Plaintiffs executed jobs for the Defendant vide Exhibits 1 to 3 which were accepted and used, but not paid for. This was acknowledged by the Defendant in paragraph 3 of Exhibit 4, but she withheld the invoices. It is settled law that facts admitted need no further proof. In addition, where evidence is led by a party and there is no contrary evidence from the other party, the evidence is deemed to be true and accepted. See Okoebor V Police Council (2003) 12 NWLR (Pt. 834) 444 SC; & Akinlagun V Oshoboja (2006) 12 NWLR (Pt. 993) 60 SC.
Thus, since the Appellant did not deny the contractual relationship which existed between her and the Respondents until the Respondents sought to end the contractual relationship due to lack of payment, the Appellant cannot resile from honoring her financial obligations to the Respondents by seeking to make an issue out of the Respondents failure to insert the 1st Respondent’s registration number on its invoices. It is manifest from Exhibits A1-A25 (the Respondents’ invoices) which had been honored over the years by the Appellant, that they also did not bear the said registration number.
Yet, the Appellant never made an issue of the absence of a registration number on those invoices when it paid the Respondents the sums claimed therein. They cannot therefore be heard to complain now of the absence of a registration number on subsequent invoices presented for jobs carried out for her by the Respondents after having benefited therefrom.
The law is trite that a party who induced another party to enter into a contract and has benefited from same cannot subsequently deny the validity of that contract. See Okechukwu V Onuorah (2000) 12 SC (Pt. II) 104 at 109. See also Globestar Engr. Co. Nig. Ltd Vs Mag. Holdings Ltd (2005) ALL FWLR (Pt. 256) 1309, 1326.
The law is also settled that a party who has benefited from a contract cannot evade his obligations under the contract by relying on an allegation of illegality. For such an illegality to avail the party, if at all, it must be ex facie. In WCC Ltd V Batalha (2006) 9 NWLR (Pt. 986) 595 at 616, 620, the Supreme Court held:
“The law is also settled that whoever intends to claim illegality as a defence must not only plead the illegality, he is also required to set out the particulars of the illegality in his pleadings. This requirement is mandatory in all cases where the contract is not ex facie illegal and the question of illegality depends on the circumstances of the case.”
See also on this, the decisions in: Ukah V Onyia (2016) LPELR-40025(CA) 23; Brewtech Nig Ltd V Akinnawo (2016) LPELR-40094(CA) 25; Okechukwu V Onuorah (2000) 12 SC (Pt. II) 104 at 109; Agbachi V Azubuike (2010) LPELR-3646(CA) 35; Uduma V Arunsi (2010) LPELR-9133(CA) 89.
Undoubtedly, Section 659 of the Companies and Allied Matters Act ought to have been complied with by the 1st Respondent. It is true that the Respondents did not place evidence of its registration properly before the Court in the absence of a witness deposition in support of the Amended Reply to the Amended Statement of defence and Counterclaim. However, the Appellant dealt with the 1st Respondent in conjunction with the 2nd Respondent, knowing that the said invoices did not bear the requisite registration number and even serially effected payments on several of those invoices. Can the Appellant now refuse to meet up with her obligations and yet receive benefit from the apparent wrong which she had been aware of and still continued to contract with the 1st Respondent based on the same invoices afflicted with the deficiency subsequently raised? That is the essence of the Judgment of the learned trial Judge. I do not think the doctrine of equity and fair play will allow that to happen.
In Chitty on Contract, 25th Edition at page 620, paragraph 1147(3), the learned author opined thus:
“The Courts have also been sensitive to the fact that non-enforcement may also result in unjust enrichment to the party to the contract who has not performed his part of the bargain, but who has benefited from the performance of the other party.”
This is relevant when taken in the con of the findings of fact by the learned trial Judge at page 310 to 311 of the Record inter alia as follows:
“In any case, the evidence to the effect that the defendant accepted the jobs done via the same invoice from the same source; is in possession and has put same to use is not challenged. But for the fall out, ? defendant had taken benefit from the same services of the plaintiffs through the same source of invoice he now faults. Can she now turn round to say that the invoices are tainted with illegality because they do not bear the 1st plaintiff?s registration number? I share the sentiments of Ornguga of counsel that it will be inequitable to take advantage of the contract and then turn round to seek to rubbish same. It is a clear case of sour grapes.”
The learned trial Judge rightly relied on the express evidence of the DW1 in this regard where he stated:
“The invoices were not signed upon inspection. If the jobs were satisfactory, the manager could sign the invoices and the job could then be paid for. The signature is evidence that the job was satisfactorily executed.”
In the case of Adedeji V National Bank of Nigeria (1989) 1 NWLR (Pt. 96) 212 at 226, Akpata, JCA (as he then was) held as follows:
“It is morally despicable for a person, who has benefited from an agreement to turn round and say that the agreement is null and void. In pursuance of the principle that law should serve public interest, the courts have evolved the technique of construction in bonam partem. One of the principles evolved from such construction in the interpretation of statutes is that no one should be allowed to benefit from his own wrong As Widgery L.J. said in Buswell V Godwin (1971) 1 All ER 418 at 421, ?the proposition that a man will not be allowed to take advantage of his own wrong, is no doubt a very salutary one, and one which the Court would wish to endorse. The effect is usually that the liberal meaning of the enactment is departed from where it would result in wrongful self benefit.”
Thus, where a contract is not ex facie illegal and the question of illegality depends on the surrounding circumstances, then as a general rule the Court will not entertain the question of its illegality unless it is raised in the pleading. In such circumstances, evidence adduced in support of the un-pleaded illegality goes to no issue. See Okagbue V Romaine (1982) 5 SC 133 at 156. However, where a contract is ex facie (id est, on its face) void or illegal, the Court will take notice of that fact and refuse to enforce the contract even though same is not specifically pleaded. The Court will not close its eyes to it against the illegality as it is the duty of every Court to refuse to enforce such a transaction even where illegality has not been pleaded. See AG Abia State V Phoenix Environmental Services Nig Ltd (2015) LPELR-25702(CA) 33 per Ekanem, JCA.
In the instant case, it is not the Appellant’s case that the contract between the parties was clearly ex facie illegal. Instead, she seeks to impugn the contract and resile from her obligations on grounds which impugn either the integrity of the Respondents and/or the documents of the contract, i.e. the invoices presented for payment after the successful completion of the contract. Thus, based on the state of the law vis-a-vis the facts of the case, I agree with the Respondents that a party who has taken benefit of a contract cannot turn around to say that the contract is invalid.
On the issue of whether the 1st Respondent is a juristic person or had proved its legal personality to enter into a valid and binding contract with the Appellant, the Respondents (as Plaintiffs) averred in paragraph 1 of their Statement of claim that they have their registered office located at No 36 Gboko Road, Makurdi. In addition, in reply to the Statement of Defence and Counterclaim, it was averred in paragraph 12 thus:
“The 1st plaintiff is a juristic person and is duly registered with the Corporate Affairs Commission. The 1st plaintiff?s certificate of registration is hereunto annexed.”
In order to prove in law the corporate status of a body or company, a certificate of incorporation in respect of the body or the company must be produced. The certificate is also evidence that the company came into existence on the date of incorporation. See Fawehinmi V NBA (No. 2) (1989) 2 NWLR (Pt 105) 558 at 632 SC; & ACB Plc V Emostrade Ltd (2002) 8 NWLR (Pt. 770) 501 SC.
To buttress paragraph 1 of their Statement of claim above, the 2nd Respondent as PW1 deposed on oath in part as follows:
“The 1st plaintiff is a company registered in Nigeria which specializes in furniture and interior decoration work.”
The Defendant however strenuously contended that the 1st Plaintiff was not and put the Plaintiffs to the strictest proof.
The Plaintiffs in answer to this was in paragraph 12 thus:
“… The 1st plaintiff’s certificate of registration is hereunto annexed and shall be relied upon at the trial.”
At pages 139 and 255 respectively the Record of Appeal, a copy of the certificate of Registration of Business Name is exhibited and the name therein to wit: ?Uncle Tony Furnitures? was stated to be registered with the Corporate Affairs Commission. The nature of the business which among others were: furniture, interior decoration, as well as the address of principal place of business at No 36 Gboko Road, Makurdi were ad idem with the averments in the Statement of claim. The Plaintiffs Amended reply to the Defendant’s Amended Statement of defence and Counterclaim frontloaded the 1st Plaintiff’s certificate of registration in paragraph 12 thereof. However, it is true that no further Statement of oath was deposed to by the Respondents in support of this averment. Thus, on the state of evidence, the Respondents did not produce the requisite certificate of its registration before the Court and thus did not prove its juristic personality.
Nonetheless, I do agree with the learned trial Judge that, even in the absence of formal evidence that the 1st Respondent is a juristic person, the Appellant did not at any time deny dealing with the 2nd Respondent, the alter ego of the 1st Respondent, nor of contracting with him and dealing with him as such in all respects on the contract as evidenced by the invoices, both those paid as well as those yet unpaid. Therefore, even in the absence of the 1st Respondent/Plaintiff as a party to the suit, the Appellant is liable to pay his debts to the 2nd Respondent/Plaintiff being a natural person who can sue and be sued in law, irrespective of the juristic personality of the 1st Respondent.
On the issue canvassed by the Appellant that the Respondents used her materials in constructing and servicing some of the furniture for her Hotels, this claim is punctured by the testimony of the sole witness of the Appellant, DW1, when he stated under cross-examination as follows:
“It is correct that each time I asked the plaintiff to make any item, he went to the market, bought the materials to execute the jobs.” (Emphasis supplied)
This is therefore contrary to the Appellants claim in this regard.
In addition, I agree with the learned trial Judge that the assertion of the Appellant that the jobs executed by the Respondents were substandard and that the Respondents cheated her in purchasing the materials used in making the furniture cannot be used as a defence in failing to pay the Respondents on the contract. Besides, no evidence at all was adduced by the Appellant to show that the furniture was rejected on account of this. In addition, the fact that the letters allegedly written by the Appellant complaining about the low standard of the jobs (Exhibits 4 and 6) were only written after the Respondents withdrew their services from the Appellant and demanded payment for the jobs done (Exhibits B, C1 C2 and 5), spoke volumes. DW1 admitted as much in his evidence. What this therefore means is that the Appellant continuously paid the Respondents on the invoices Exhibits A1 to A25 upon due inspection without any complaint on the quality of work of the Respondents. Thus, the learned trial Judge cannot be faulted in his finding that the Appellants complaint was merely in reaction to the Respondents withdrawing their services. It therefore smacks of nothing but sour grapes, in addition to there being no evidence to substantiate the allegations of cheating and substandard work. Based on all the above findings, I resolve issue one in favour of the Respondents.
Issue two – Whether the Appellant was entitled to the reliefs sought for in her counterclaim.
Under this issue, it is the Appellant’s position that the learned trial Judge misconceived the issues before him when he awarded the sum of N372,480.00 to the Respondents and that he did not properly evaluate the evidence. Thus, that he was in error when he dismissed the counterclaim of the Appellant. It is also contended that since the Respondents amended their Reply to the Statement of Defence and Defence to the counterclaim and did not accompany it by another written deposition on oath, the averments therein are deemed abandoned and the averments in the Statement of Defence are deemed admitted. The Appellant in addition referred to the evidence of DW1 which contended that the 2nd Respondent was dishonest, carried out substandard jobs while overcharging the Appellant and used the Defendants’ materials in executing the contracts. Furthermore, the Appellant referred to the withholding tax paid and the IOUs (Exhibits D1-D4 & Exhibit O) taken from her by the 2nd Respondent. It is therefore contended that the learned trial Judge failed to properly evaluate the unchallenged evidence led by the Appellant in proof of the counterclaim.
The Appellant adopts all the arguments canvassed under issue one and submits that the IOUs numbered 1 to 3, 5 to 8, 10 to 12, 14 to 16, and 18 to 19 totaling N288, 000.00 which the Respondents conceded to on 31-02-11, need no further proof. It is further contended that evidence was led through DW1 that the 2nd Respondent used the Defendant’s materials worth N176, 000.00 to execute its contracts in 2006 to 2008, and the Defendant demanded for this from the 2nd Respondent in Exhibit 4. The Court is therefore urged to hold that the Appellant proved her case and is therefore entitled to all the reliefs sought in the counterclaim. The Court is invited to appraise and evaluate the evidence on the Record and to hold that the dismissal of the counterclaim was not proper and to resolve this issue in favour of the Appellant, to allow the Appeal, set aside the decision granting the claim of the Respondents and in its place and grant all the reliefs in the counterclaim.
In response, Counsel for the Respondents submits that the Appellant was not entitled to the reliefs sought in the counterclaim. He referred to the evidence of the DW1 under cross-examination where he stated thus:
“It is correct that each time I asked Plaintiff to make any item, he went to the market, bought materials to execute the job, when Plaintiff did not have money to execute the contract and he collected money from us in the form of I.O.U to execute the job.”
By this, it is contended that the Appellant admitted that the Respondents did not use her materials to execute the job. Secondly, the Respondents were not in the business of buying and selling materials to the Appellant, but only dealt with finished products. The Respondents conceded to having taken IOUs from the Appellant to the tune of N254, 000.00, though it is argued that the Appellant owes the Respondents the sum of N651, 480.00. Thus, that the Respondents contend that the Appellant is only entitled to the sum of N254, 000.00 admitted by them.
It is further contended that the Appellant did not prove cheating by the Respondents neither did she prove that the Respondents used the Appellant’s materials to execute the contract in question. Instead, the Appellant admitted that the Respondents bought the materials used in executing the contract from the market and also took IOUs when he did not have money to buy materials for the jobs. Counsel submits that facts admitted need no further proof. The Appellant having admitted these facts was not entitled to the reliefs sought from the lower Court.
It is further submitted that only decisions of a trial Court which are perverse and have occasioned a miscarriage of justice are liable to be set aside, as it is not the duty of an Appeal Court to disturb the findings of fact made by the trial Court except in exceptional circumstances where the inferences from established facts are wrong or where the findings do not flow or follow from the given evidence. The Court is therefore urged to resolve this issue in favour of the Respondents, to dismiss the Appeal and affirm the decision of the learned trial Judge.
Findings –
The counterclaim of the Appellant was anchored on three assertions, to wit: IOUs to the tune of N500, 000.00, Appellants materials used by the Respondents to the tune of N176, 000.00 and substandard planks bought by the 2nd Respondent assessed at N173, 250.00 plus general damages of N500, 000.00. In support of the Counterclaim, the Appellant relied on paragraphs 1 to 8 of her Statement of defence. Having already pronounced on the allegations that materials of the Appellant were used by the Respondents in constructing the furniture and that substandard materials used under issue one above, I adopt my findings therein in this regard as no further purpose will be served in rehashing the findings here. These allegations were not proved and the learned trial Judge was right to have found that the Appellant was not entitled to those head of claims. I do so find.
In respect of the IOUs alleged to be owed the Appellant by the Respondent, the Appellant tendered Exhibits D1 to D4 and Exhibits P1 to P16 in proof. The Respondents readily conceded to owing the sums stated the IOUs reflected in Exhibits P1 to P16 totalling the sum of N279, 000.00, but denied owing the sum in Exhibits D1 to D4 totalling N54, 900.00. From the pleadings and evidence of the Appellant, the sums of money reflected in this latter set of IOUs, i.e. Exhibits D1 to D4, were collected by agents of the Respondents.
Having been denied by the Respondents however, it became incumbent upon the Appellant to have adduced evidence to establish that the Respondents were the beneficiaries of such IOUs or that the persons who collected the monies, collected and/or received them as agents of the Respondents or on their behalf. This therefore calls for hard evidence from the counterclaimant now Appellant which was sorely lacking, as the Respondents having denied knowledge of same, the Appellant through her sole witness, DW1, did not in any way substantiate this head of claim in his evidence.
However, since the Respondents admitted the IOUs in Exhibits P1 to P16, the learned trial Judge rightly deducted the sum of N279, 000.00 (being the sum total of these IOUs) from the sums owed and proved by the Respondents vide Exhibits 1 to 3, leaving the balance of from the Respondents? claim. The lower Court therefore ultimately awarded the Respondents the sum of N372,480.00 from their claim of N651,480.00. I am therefore of the view that given the quality of evidence adduced by the Appellant, she failed to prove her counterclaim in paragraphs 13(ii) and (iii), and only established the claim in paragraph 13(i) to the tune of N279,000.00 as reflected in Exhibits P1 to P16, which was readily admitted bythe Respondents.
I therefore find that, contrary to the contention of the Appellant, the learned trial Judge properly appraised and evaluated the evidence adduced in respect of the counterclaim and came to a right decision. I see no reason to interfere with same. I therefore resolve this second issue also in favour of the Respondents.
In the result, I find no merit in the Appeal. It fails and is dismissed.
I award costs assessed at N50, 000.00 to the Respondents.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment just delivered by my learned Brother, Jummai Hannatu Sankey, JCA, dismissing this appeal.
I agree with, and adopt as mine, the comprehensive resolution of the issues raised therein. I also dismiss the appeal and abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I had a preview of the lead judgment of my learned brother, Sankey, JCA, which has just been delivered. I agree with the reasoning and conclusion therein. I will only put in a few words of mine for emphasis.
Pursuant to a contract between the appellant and 1st respondent, the latter through the 2nd respondent executed the contract, making and supplying furniture to appellant’s hotels in Makurdi and Abraka. The appellant took delivery of the same and made use of the furniture. The appellant, seeking to escape its obligation to pay the respondents, contended, inter alia, that the 1st respondent is not a legal person and that the respondents’ invoices did not bear the 1st respondent’s registration number. Interestingly, the respondents’ invoices (Exhibits A1 – A 25) which the appellant had earlier honoured did not bear the registration number.
It is clear that the appellant benefited from the agreement that it is now attacking. A party who has derived benefit from an agreement is not permitted to turn round to question the legality or the validity of the same agreement as that would be unconscionable and would amount to approbating and reprobating. See Fakarode V Attorney – General, Western State (1972) All NLR (1) 178 and B.B. Apugo & Sons Ltd V Orthopedic Hospitals Management Board (OHMB) (2016) 13 NWLR (Pt. 1529) 206. Such a person can not even be allowed to contend that the other party is not a juristic person. See Chanchangi Airlines (Nig) Ltd v African Petroleum Plc (2015) 4 NWLR (Pt. 1449) 256, 274 – 275.
The trial Court was therefore right in rejecting the contention of the appellant.
Based on the above and the fuller reasons in the lead judgment, I agree that the appeal lacks merit. I also dismiss the same.
I abide by the order as to costs in the lead judgment.
Appearances:
M.O. Ozueh,Esq.For Appellant(s)
D.S. Obademi, Esq.For Respondent(s)
