ESEIGBE ENGINEERING COMPANY LIMITED v. CHIEF (MRS.) REBECCA AIKHOMU & ANOR
(2018)LCN/12350(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of February, 2018
CA/B/224/2010
RATIO
CONTRACT: WHERE LATENESS IN PAYING OCCUR
“The final payment schedule vide Exhibit N was due and binding on the parties. See IFETA V SPDC (NIG.) LTD. (2006) 8 NWLR (PT. 983) PG. 585. AIICO INSURANCE PLC V ADDAX PETROLEUM DEVELOPMENT COY. LTD. (2014) LPELR 23743. Lateness in paying the agreed sum later than expected can only be remedied in damages as the trial Court has done adequately.” PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
CONTRACT: WHETHER INTEREST CAN BE PRE-DATED
“The Supreme Court in the case of AFRI BANK V. AKARA (2006) ALL FWLR (PT. 304) PG. 401 held: ‘Except where parties have agreed on payment of interest, it is not right to award interest predating the date of judgment. There must be express agreement that interest will be charged.’…A pre-judgment interest is either statutory or contractual. Having failed to prove that the prejudgment was statutory or contractual, its claim to the 35% prejudgment interest must fail. See MCC NIG. LTD. V E. AGBEJURE ENTERPRISES LTD. (2013) LPELR 21167.” PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“Evaluation of evidence entails the consideration of every evidence on an issue. In considering such evidence, the Court has a duty to consider the relationship between the evidence and the issue as well as the positive value of such evidence. This will involve a thorough appraisal and assessment of the evidence that will logically result in a conclusion of law or an inference of fact. See: OGIEMWONYI V. STATE (2016) LPELR 40292.” PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
INTERPRETATION: WHO IS A PARTY?
“‘The word party or parties is a correlative term. A distinction has been made between proper parties, desirable parties and necessary parties respectively. Proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons. Desirable parties are those who have on interest in the suit or may be affected by the result thereof. Necessary parties are those who not only have interest in the matter but also who in their absence, the proceedings could not be fairly dealt with. That’s to say, the issues or questions to be determined in the matter between the existing parties should be one which cannot be properly settled unless they are parties to the action. See: GANI-TARZAN MARINE ENTERPRISES LTD. V CARAVELLE RESOURCES AND INVESTMENT LTD. (2011) LPELR 4185, AMOS V OKOYA (2014) LPELR 22527.’ The foregoing is what the definition of parties is. Whether desirable or necessary, the trial Judge can only deal with these issues of joinder if it is placed before it. That is if a party request for another to be joined. It is futile for a Judge to waste precious judicial time dealing with the issue of parties where no one has complained.” PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ESEIGBE ENGINEERING CO. LIMITED Appellant(s)
AND
1. CHIEF (MRS.) REBECCA AIKHOMU
(THE EXECUTOR OF ESTATE OF ADMIRAL AUGUSTUS A. AIKHOMU RTD.)
2. MIKE ONOLEMHEMHEN
(CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF GOMIC CONSULTS) Respondent(s)
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Edo State delivered on 11th February, 2010 by Hon. Justice P. I. Imoedemhe.
By a Writ of Summon together with an Amended Statement of Claim dated 22nd May, 2006, the Plaintiff now Appellant claimed against the 1st and 2nd Defendants now 1st and 2nd Respondents respectively as follows:-
1. The sum of N8,916,918.51 (Eight Million, Nine Hundred and Sixteen Thousand, Nine Hundred and Eighteen Naira, Fifty-One Kobo) only being the unpaid balance for work done inclusive of retention fee.
2. Interest at the rate of 35% per annum on the unpaid sum from May 1998 till the date of judgment.
3. 10% interest on judgment sum per annum from date of judgment until the entire money is paid.
4. General damages in the sum of N300,000.00 (Three Hundred Thousand Naira) only.
The Respondents filed an Amended Joint Statement of Defence dated 5th June, 2006 to which the Appellant filed a reply.
The gist of the Appellant’s case is that he was awarded a building contract by the 2nd Respondent for the building of the 1st Respondent. The 2nd Respondent is an agent and consultant of the 1st Respondent. The Appellant duly executed the building contract for which the 1st respondent has refused to pay him in full including payment of his retention fees.
The Respondents on the other hand alleged that the Appellant did not finish the work and was replaced. They contended that they have made full and final payment to the Appellant to the extent of work done on the building project.
In proof of its case the Appellant called three witnesses and tendered documents of which most were issued by the 2nd Respondent on behalf of the 1st respondent. The 1st Respondent was never present in Court during the proceedings at the lower Court while the 2nd Respondent testified for himself and also tendered documentary exhibits.
At the conclusion of the trial and address of counsel the learned trial judge entered judgment in part in favour of the Appellant against the 1st Respondent as follows:-
(a) The sum of N875,009.00K being the unpaid balance due from the 1st Defendant to the Plaintiff for work done.
(b) Damages for wrongful refusal to pay the balance sum which I assess and fix at N300,000.00.
(c) Interest on the judgment sum at the rate of 10% per annum from the date of judgment until payment of the judgment sum.
The Appellant being dissatisfied with the judgment filed by order of Court an Amended Notice of Appeal against the same on 27th day of November, 2014 containing seven grounds of appeal.
The appeal was heard on the following briefs; (1) The Appellant’s Amended brief of argument filed on 4th November, 2016 but deemed properly filed on 9th May 2017; (2) The 1st and 2nd Respondents Joint Brief of argument filed on 30th November, 2015 but deemed properly filed on 5th February, 2016; 3) Appellant’s reply brief filed on 4th November, 2016 deemed properly filed on 9th May, 2017.
The Appellant in their brief formulated five issues for determination of this Court viz:
1. Whether the learned trial Judge was right in law when he held that the sum of N875,009.00 is the unpaid balance due from the 1st Respondent to the Appellant for the Appellant’s due execution of the building contract.
2. Whether the learned trial Judge was right in law when he held that the Appellant herein ought not to have commenced the suit against the 2nd Respondent along with the 1st Respondent and struck out the name of the 2nd Respondent from the suit and thereafter awarded cost of N5,000 to be paid by Appellant to the 1st Respondent and N10,000 to be paid by the 2nd Respondent to the Appellant.
3. Whether trial Judge was right in law when he held that the claim for prejudgment interest was not proved and therefore dismissed the claim.
4. Whether the learned trial Judge was right in law when he based his judgment solely on Exhibits M, N, O and ignored several others documentary exhibits tendered by the parties in the suit.
5. Whether the learned trial Judge was right in law when he held that the retention fee of N1,041,882.60K which was withheld on trust by the Respondents from the Appellant should not be paid when there is no proof of defect or remedial works communicated to the Appellant on the work they executed.
The Respondents on their part also formulated five issues for determination. They are:-
1. Whether the learned trial Judge was right in law when he held that the sum of N875,009.00 is the unpaid balance due from the 1st Respondent to the Appellant for the Appellant’s due execution of the building contract.
2. Whether the learned trial Judge was right in law in rejecting the Appellant’s claim of N8,916,918.51K which was solely based on SORETIA CONSULTANTS REPORT (Quantity Surveyor unilaterally appointed by the Appellant).
3. Whether the Court was right in law and facts that the Appellant was not entitled to payment of both Retention Fee and for Attendances.
4. Whether the learned trial Judge was right in law in refusing to award prejudgment interest.
5. Whether the learned trial Judge was right in law when he held that the Appellant herein ought not to have commenced the suit against the 2nd Respondent along with the 1st Respondent and struck out his name from the suit.
The issues framed by the Appellant adequately capture the complaint and shall be used in the determination of this motion.
ISSUES 1 AND 5
Learned counsel for the Appellant submitted that the Appellant having established that the amount owed to him by the Respondents amounts to the sum of N8,916,918.51K.
The trial judge was wrong in awarding only the sum of N875,009.00 as the balance due from the Respondent for work done by the Appellant. He referred to Exhibits C, D, E, F, G and X.
He submitted that the trial judge in arriving at the sum of N875,009.00 relied on Exhibit N as the final reconciled account. It is the contention of counsel that Exhibit N was not the valid final reconciled account as both parties refuted the finality of Exhibit N. He referred to Exhibits X, V and Z36 and paragraphs 13, 14, 16(a) – (c), 18(a) and (b) of the Joint Amended Statement of Defence. He also contended that by Exhibit O the Appellant accepted Exhibit N on the precondition of prompt payment as promised in Exhibit N. Thus the failure of the Respondents to fulfil the pre-condition in Exhibit N and O invalidated Exhibit N as the final reconciled account of the civil and building works done by the Appellant for the Respondent failed to reflect some of the work done by the Appellant.
He further submitted that the 1st Respondent having failed to adduce any evidence in support of his pleading, he is deemed to have abandoned his pleading and accepted the claim of the Appellant.
He relied on the case of E.S.C.S.C V GEOFFERY (2006) 18 NWLR (Pt. 1011) 293: W.C.C. LTD V BATALHA (2006) NWLR (Pt. 986) 595.
He thus urged this Court to resolve this issue in favour of the Appellant and hold that the Appellant is entitled to the sum of N8,91,6,918.51K as the unpaid balance.
Learned counsel for the Respondent on the other hand submitted that the trial judge was right in law when he held that the sum of N875,009.00 is the unpaid balance due to the Appellant for the due execution of the building contract. It is the contention of counsel that the trial judge in arriving at the said sum properly evaluated the facts and evidence adduced before him. Thus the Appellate Court cannot interfere with the finding of the trial Court which was based on the evidence adduced before the trial Court.
He relied on the admission of the Appellant that Exhibit N was the final reconciled account, Exhibit A – G and N. He also referred to the case of SULE ANYEGWU & ANOR V AIDOKO ONUCHE (2009) VOL 1 & 2 MJSC 75: SERGIUS ONYKELU V ELF PETROLEUM (NIG) LTD (2009) VOL 2 MJSC P 25.
He urged this Court to hold that the learned trial judge has compensated the Appellant with the sum of N300,000 as damages against the Respondents for delay in honouring their obligation in Exhibit N.
Learned counsel for the Appellant in his reply submitted that for the Court to determine the exact amount owed to the Appellant for work done for the Respondents, the Court is bound to consider all the evidence (documentary or oral) tendered before it. He referred to the case of OLADEHIN V CTML (1978) 11 NSCC 88; BUBA V STATE (1992) 1 NWLR (Pt. 215) 1; LEYLAND (NIG) LTD V DIZENGOFF (1990) 2 NWLR (Pt. 134) 510: NAGOGO V C.P.C (2013) ALL FWLR (Pt. 685) 272.
It is the contention of counsel that the trial judge failed to consider the abundance of evidence that:-
1. Exhibit N was based on a precondition of prompt payment which was not met.
2. Exhibit O which stated clearly that Exhibit N does not represent the true reconciliation of work done on the Project.
3. Exhibit X, V and Z36 which raises doubt on the finality of Exhibit N.
Learned counsel for the Appellant submitted that the Appellant having pleaded and proved his claim for retention fees the trial judge was wrong in holding that the Respondents rightly withheld the retention fees of the Appellant when there was no proof of defect or remedial work on the work carried out by the Appellant. He relied on Paragraphs 16, 18, 22 and 25(i) of the Appellant’s Amended Statement of Claim, the evidence of PW1 and 2, Exhibit R.
He submitted that although the 2nd Respondent in his evidence testified that the 1st Respondent complained of defect on the works the Appellant executed, the 2nd Respondent failed to describe the nature of the defect or remedial work that was observed, the cost of correcting the defect as he claimed and also there was no evidence to show that the issue of remedial work was communicated to the Appellant. He also submitted that the issuance of Exhibit R (the letter releasing the retention fee certificate) to the Appellant was proof that the Appellant’s work had no defect or remedial work. He referred this Court to Exhibit S (1), (2), (3).
He thus urged this Court to resolve this issue in farvour of the Appellant and hold that the Appellant is entitled to the sum of N1,041,882.60k being the retention fee withheld by the 1st Respondent.
Learned counsel for the Respondent on the other hand submitted that the trial judge was right in holding that the Appellant was not entitled to attendance and retention fee.
On attendance, it is the contention of counsel that the Respondent did not render any attendance. He contended that the subcontractors provided for their attendance and the Respondents paid directly to the subcontractor. He referred to Exhibit H, J -J3.
On retention fee, it is the contention of counsel that the Appellant having not been issued a final/completion certificate by the Respondents shows that the contract was inconclusive. He referred to the evidence of DW1 at page 129 and PW1 at page 118.
He urged this Court to uphold the judgment of the lower Court.
Learned counsel for the Appellant in his reply reiterated his earlier argument and submitted that based on Exhibit A and the attached bill of quantity the Appellant was only given part of the project to carry out which he successfully completed. Thus the trial judge was therefore wrong in holding that the Appellant was not entitled to payment of retention fee.
On attendance, counsel submitted that the guide to this aspect of attendance in the contract are all relevant pages in the bill of quantities attached to Exhibit A, Z2- 4, K, L, H, J-J3 among others.
It is the contention of counsel that the Appellant having shown that they rendered attendances to subcontractors as per bill of quantity on the project coupled with the admission of the Respondents that the Plaintiff rendered attendance to some subcontractors the trial judge was wrong in holding that the Appellant was not entitled to attendance.
RESOLUTION OF ISSUES ONE AND FIVE (1 & 5)
In a contract case, such as this, the best way forward is to decipher the areas which both parties agreed as correct and binding. Both parties reconciled their accounts at the end of their relationship. The amount agreed by both parties as outstanding is N4,587,421.40 vide Exhibit N. Exhibit N is a letter by the Respondents acknowledging the final reconciliation and the sum contained therein. The Appellant in his Reply – Exhibit O agreed and affirmed the reconciled figures. Both parties were ad idem on the figures.
The Respondents after a prolonged period paid Three Million, Seven Hundred and Twelve Thousand, Four Hundred and Twenty- One Naira, Forty Kobo (N3,712,421.40) less Eight Hundred and Seventy-Five Thousand Naira (N875,000.00) vide Exhibit V. This shortfall in payment was contrary to the final amount agreed between the parties. After the final reconciliation by both parties, it would be difficult for the Court to accept a unilateral reconciliation done by the Appellant vide Exhibit X. If Exhibit N was unilateral and Exhibit X unilateral, then the Court would have appointed an independent Quantity Surveyor to decipher which of the payments are indeed due and reconcile the accounts.
As it stands, the parties cannot be allowed to renege on their earlier reconciled final accounts. The amount of N4,587,421.40 is due and must be paid. Having paid with a shortfall of Eight Hundred and Seventy-Five Thousand Naira (N875,000.00) which is due to the Appellant as rightly held by the trial Judge.
The final payment schedule vide Exhibit N was due and binding on the parties. See IFETA V SPDC (NIG.) LTD. (2006) 8 NWLR (PT. 983) PG. 585. AIICO INSURANCE PLC V ADDAX PETROLEUM DEVELOPMENT COY. LTD. (2014) LPELR 23743.
Lateness in paying the agreed sum later than expected can only be remedied in damages as the trial Court has done adequately.
The Respondents wrote to the Appellant vide a letter dated 30th July, 1999 – Exhibit R. For ease of reference, I would recap the letter verbatim – Exhibit R.
RELEASE OF RETENTION CERTIFICATE
Project: Residential Development at Denis
Osadebey Street, G. R. A. Benin City.
Contractor: Eseigbe Engineering Co. (Nig.) Ltd.
155 New Lagos Road,
Benin.
Certification:
We hereby certify that the retention sum of N1,041,882.50 (One Million, Forty-one Thousand, Eight Hundred and Eighty-Two Naira, sixty Kobo) only contained in the final reconciled account on the above project be released to Messrs Eseigbe Engineering Co. (Nig.) Ltd.
This is sequel to the expiration of the defects liability period.
Signature:….. Date:30 -7 -99
ARCHITECT
Contractor Copy
The Respondent in the above letter acknowledged the non-payment of the retention fee.
In the said letter, it means that the Appellant is really entitled to the Retention fee which is already due, as a result of the expiration of the defects liability period.
The Respondent had issued this certificate for payment Exhibit R. The Respondent is bound by his certificate. This was issued in writing. This means that it is a payment that is due. The Court will not allow the Respondent to renege on this certificate. See IFETA V. SPDC (NIG.) LTD. (SUPRA) and AIICO INSURANCE V ADDAX PETROLEUM DEVELOPMENT COY. LTD. (SUPRA)
This is a properly earned and proved payment. It has to be paid by the Respondent.
These issues are resolved in favour of the Appellant against the Respondents.
ISSUE 2
Learned counsel for the Appellant submitted that it is not the duty of the trial judge to make out a case for any of the parties, his duty as an umpire is to decide the case before him as presented to him by the respective parties. He relied on the case of KALU V. UZOR (2006) 8 NWLR (Pt. 981) 55; ADEBANJO V. BROWN (1990) 3 NWLR (Pt. 141) 661; VINCENT V. VINCENT (2008) 11 NWLR (Pt. 1097) 35; KASIMU V. NNPC (2008) 3 NWLR (Pt. 1075) 569.
It is the contention of counsel that the decision of the trial judge on the issue of the joinder of the 2nd Respondent as a party to the suit was not an issue before the Court.
He contended that the 2nd Respondent testified for himself and never raised the issue that the Appellant wrongly joined him with the 1st Respondent nor was either party given the opportunity to address on it. Thus the trial judge was wrong in raising it in the manner he did and to base his judgment on it.
Furthermore, counsel contended that it is trite that a Court cannot grant a party before it a relief not asked for. He relied on the case of NNAEMEKA V CHUKWUOGOR (NIG.) LTD (2007) 5 NWLR (Pt. 1026) 50; BANK OF THE NORTH LTD V ALIYU (1999) 7 NWLR (Pt. 512); OGBE V ESSI (1943) 9 NWLR WACA 76. It is the contention of counsel that the awarded cost of N5,000.00 against the Appellant in favour of the 1st Respondent granted by the trial Court was not claimed by the 1st Respondent and therefore unwarranted.
He also submitted that by the authority of A-G., LAGOS STATE v. A-G., FED (2004) 18 NWLR (Pt 904) 1, it will be futile and therefore a nullity to make an order affecting a person who is not a party before the Court. It is the contention of counsel that the trial Court having struck out the name of the 2nd Respondent the award of N10,000.00 against the 2nd Respondent in favour of the Appellant was wrong.
He thus urged this Court to resolve this issue in favour of the Appellant and hold that the 2nd Respondent is a necessary party in this suit and award proper cost in favour of the Appellant against the 1st and 2nd Respondent.
Learned counsel for the Respondents on the other hand submitted that the trial judge was right in striking out the name of the 2nd Respondent as there was ample evidence before the Court that 2nd Respondent was merely acting as an agent to a disclosed principal. He referred to the evidence of DW1 at pages 121 ? 136 and the evidence of PW1 at pages 97 – 119.
Learned counsel for the Appellant in his reply reiterated his arguments on the effect of the judge raising an issue suo motu outside the case of the parties. He also contended that the Respondents having stated in their affidavit in support of the motion to bring in the Respondents joint brief of argument that the 2nd Respondent do not want to be excluded from the prosecution of the appeal cannot now make a case to opt out in their Respondents’ brief.
He referred to paragraph 3(h) of the Affidavit in support of the motion dated 30th November, 2015 and paragraph E of the Motion dated 30th November, 2015. He thus urged this Court to resolve this issue in favour of the Appellant.
RESOLUTION OF ISSUE TWO (2)
The Appellant as Plaintiff sued the 1st and 2nd Respondents. There were no issues as to parties by the parties in the suit. The 2nd Respondent neither complained being joined as a party to the suit. It is acknowledged that the 2nd Respondent is an agent of the 1st Respondent, however, he was the face of the 1st Respondent. The 2nd Respondent wrote all the letters tendered as Exhibits in this case. Since, the 2nd Respondent did not make an issue out of it, the trial Court was wrong to have made a case other than what the parties made out for themselves.
We might then ask who is a party in a suit?
“The word party or parties is a correlative term. A distinction has been made between proper parties, desirable parties and necessary parties respectively. Proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons. Desirable parties are those who have on interest in the suit or may be affected by the result thereof. Necessary parties are those who not only have interest in the matter but also who in their absence, the proceedings could not be fairly dealt with. That’s to say, the issues or questions to be determined in the matter between the existing parties should be one which cannot be properly settled unless they are parties to the action. See: GANI-TARZAN MARINE ENTERPRISES LTD. V CARAVELLE RESOURCES AND INVESTMENT LTD. (2011) LPELR 4185, AMOS V OKOYA (2014) LPELR 22527.”
The foregoing is what the definition of parties is. Whether desirable or necessary, the trial Judge can only deal with these issues of joinder if it is placed before it. That is if a party request for another to be joined. It is futile for a Judge to waste precious judicial time dealing with the issue of parties where no one has complained.
Having decided suo motu that the 2nd Respondent was neither a necessary or desirable party and struck out his name, surprisingly after striking out his name, awarded cost against him.
This issue is resolved in favour of the Appellant.
ISSUE 3
Learned counsel for the Appellant submitted that the trial Court was wrong in dismissing the Appellant’s claim for prejudgment interest. It is the contention of counsel that the Appellant having pleaded and proved that she took a loan to execute the job and also tendered documents as exhibits in proof of same which were not controverted, the trial Court ought to have acted on the uncontroverted evidence on the claim of pre judgment interest and award same as payment for jobs done. He relied on the evidence of PW1 and PW3 and Exhibits U, U1, T, U2 and Paragraph 25 of the Amended Statement of Claim.
Learned counsel for the Respondent on the other hand submitted that the Appellant having failed to prove his claim for prejudgment interest the trial Court was right in dismissing it. It is the contention of counsel that there was no proof of any collateral lodged for such loan, PW3 (the purported money lender) did not show proof of his registration under the Money Lenders Act. It is the contention of counsel that the failure of the Appellant to tender his Statement of Account to proof payment of the loan rendered his testimony as mere statement without any weight to be attached.
RESOLUTION OF ISSUE THREE (3)
The parties entered a loose building contract. There was no contract agreement to put a finger on. The Appellant in his Statement of Claim claimed for a 35% prejudgment interest and 10% interest after judgment.
The Supreme Court in the case of AFRI BANK V. AKARA (2006) ALL FWLR (PT. 304) PG. 401 held:
“Except where parties have agreed on payment of interest, it is not right to award interest predating the date of judgment. There must be express agreement that interest will be charged.”
The Appellant did not prove that the parties had agreed on a pre-judgment interest of 35%. However the Appellant led evidence to show that it had borrowed money from money lenders to complete the building contract. This evidence is neither here nor there. It is the Appellant’s business to fund his contract.
A pre-judgment interest is either statutory or contractual. Having failed to prove that the prejudgment was statutory or contractual, its claim to the 35% prejudgment interest must fail. See MCC NIG. LTD. V E. AGBEJURE ENTERPRISES LTD. (2013) LPELR 21167.
Ogundare JSC (of blessed memory) held in BERLIET NIG. LTD. V ALH. MUSTAPHA KACHALLA (1995) LPELR 725:
“There clearly is a difference between award of interest prejudgment where a Plaintiff must specifically claim such and prove it and the award of interest on a judgment debt which is purely statutory and can only be awarded if there are provisions to that effect in the law or rules of the Court. HAUSA V FBN PLC (2000) 9 NWLR (PT. 671) PG. 64, EKWUNIFE V WAYNE W/A LTD. (1989) 5 NWLR (PT. 122) PG.422, UBA PLC V ORANUBA (2013) LPELR 20692.”
From the foregoing, the Appellant was hard pressed to prove the prejudgment interest of 35% as there was no term of the contract, be it verbal or written which envisaged this claim of prejudgment interest. It therefore must fail. The trial Judge can only award the statutory interest on the judgment debt i.e. post judgment.
The trial Court was therefore right in refusing the prejudgment interest of 35%.
This issue is also resolved against the Appellant in favour of the Respondents.
ISSUE 4
Learned counsel for the Appellant submitted that it is the duty of the court to consider all evidence brought before it whether oral or documentary. He relied on the cases of LEYLAND (NIG) LTD V DIZENGOFF (1990) 2 NWLR (Pt 134) 510; MOHAMMED V ABDULKADIR (2008) NWLR (PT. 1076) 111; SAIDU V ABUBAKAR (2008) 12 NWLR (Pt. 1100) 201.
It is the contention of counsel that the trial judge erred in law when he ignored and failed to consider some documents tendered and admitted as exhibits before him (particularly Exhibits X, R. U – U2 relied on by the Appellant to prove his claim) but solely considered and based his judgment on Exhibits M, N and O. Counsel submitted that the failure of the trial judge to consider Exhibit X,Z36, R and U – U2 had occasioned a miscarriage of justice, thus rendering the judgment of the lower Court perverse. He urged this Court to resolve this issue in favour of the Appellant.
Learned counsel for the Respondent on the other hand submitted that the fact that a document has been admitted in evidence with or without objection does not necessarily mean that the document has established the evidence obtained herein which must be accepted by the trial judge. It is not automatic.
Admissibility of evidence is one thing and the weight to be attached is another. He relied on the case of MUSA ABUBAKAR V F. I. CHUKS (2008) MJSC VOL 2 P. 203.
It is the contention of counsel that the Appellant having admitted in his evidence that Exhibit X was made without reference to the Respondents to value the jobs executed by the Appellant and that their claim of N8,916,918.51k was based on Exhibit X (the Soteria Consultant Report). The trial judge was right in not considering Exhibit X. He relied on the evidence of PW1- and PW2.
He thus urged this Court to uphold the findings of the trial judge in not attaching any weight to Exhibit X which was described as documentary hearsay as it is based on what the Appellant told them.
Learned counsel for the Appellant in his reply submitted that the weight to be attached to Exhibit X cannot be based on the non-inspection of the Quantity Surveyor of the site with both-parties as Exhibit X was based on the evaluations of the figures represented in the various documents already tendered as Exhibits. He further submitted that if the trial judge had properly evaluated all the documentary evidence before it particularly Exhibit A, B. C – G, N, Z19, R, K, L, Z14 the trial Court would have been abreast with the facts and figures of the issue before it.
He also contended that the fact that Exhibit X remained unchallenged the trial Court ought to have relied on it as evidence to be used in support of the Appellant’s case. He submitted that since the maker of Exhibit X was in Court, testified and was cross-examined, the lower Court was wrong in ignoring the said document as documentary hearsay. He referred to the case of ORJI V. UGOCHUKWU (2009) 14 NWLR (Pt. 116).
He urged this Court to resolve this issue in favour of the Appellant and hold that the Appellant was entitled to the sum of N8,916,918.53k as unpaid balance of the works executed for the Respondents.
RESOLUTION OF ISSUE FOUR (4)
The learned trial Judge in its judgment considered all the material evidence placed before him and the documents as well. The learned trial Judge examined Exhibit V, R, U- U2. Exhibit X was a unilateral reconciliation of accounts made by the Appellant.
There was no way this reconciliation can fly after both parties had concluded on a final reconciliation captured in Exhibit N. Exhibit R is the Release of Retention Certificate which I had early dealt with in Issue 1. I believe that having issued that certificate voluntarily, it should be paid to the Appellant. Exhibit U – U2 are documents evidencing the Appellant’s request for a bridging loan from money lenders. Also of the loan granted the Appellant by the loan sharks.
This I held earlier on in this judgment is a private business of the Appellant. He alone can fund or finance his contract anyhow it chooses. I don’t think it would be the concern of the Respondents how the Appellant funds his contracts.
I must say that the learned trial Judge evaluated the material evidence placed before him. I do not think he had failed in any way in the evaluation of same.
Evaluation of evidence entails the consideration of every evidence on an issue. In considering such evidence, the Court has a duty to consider the relationship between the evidence and the issue as well as the positive value of such evidence. This will involve a thorough appraisal and assessment of the evidence that will logically result in a conclusion of law or an inference of fact. See: OGIEMWONYI V. STATE (2016) LPELR 40292.
I believe the learned trial Judge evaluated the Exhibits placed before him. Some were relevant, others were not relevant to the issues proffered for determination.
I cannot fault the appraisal of the evidence by the trial Court. This issue is also resolved against the Appellant.
This appeal succeeds in part in that the Court affirms the judgment of the lower Court. However, in addition the Court has also awarded the Appellant, the Retention Fee duly certificated in Exhibit R for the amount of One Million, Forty-One Thousand, Eight Hundred and Eighty-Two Naira, Sixty Kobo (N1,041,882.60) only.
I make no order as to cost.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse in draft, the leading judgment delivered by my learned brother, Uzo I. Ndukwe – Anyanwu, JCA. I endorse in toto the reasoning and conclusion in it. I too allow the appeal in part and in the manner decreed in the judgment.
Appearances:
E. O, Afolabi with him, E. C. Abedonego, E. E. O. Uhoho (Mrs.) and O. OsulaFor Appellant(s)
For Respondent(s)
