A.G. VISION CONSTRUCTION NIG. LTD. & ANOR V. YEMSAL REPROC NIG. LTD (2020)

A.G. VISION CONSTRUCTION NIG. LTD. & ANOR V. YEMSAL REPROC NIG. LTD

(2020)LCN/14821(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, November 06, 2020

CA/A/597/2017

RATIO

PROCEEDINGS: IMPORTANCE OF ISSUES AND JURISDICTION TO PROCEEDINGS

Issues of a valid cause of action and competent jurisdiction are very important to all judicial proceedings because they are necessary for any successful litigation. PER BABA IDRIS, J.C.A.

ACTION: MEANING OF A CAUSE OF ACTION

A cause of action has been defined as facts which gives a person a right to judicial relief. It is a situation or state of facts which would entitle a party to sustain an action and give him a right to seek a judicial remedy in his behalf or institute a judicial proceeding.
In the case of EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47), Oputa, JSC (as he then was) in defining what cause of action is, reiterated thus:
“cause of action is admittedly, an expression that defiles definition. But, it can safely be defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.”
Also, cause of action was defined in the case ofS.P.D.C NIG. VS. OKONEDO (2008) 9 NWLR (PT. 109) 85 AT 117-118 as a factual situation, the existence of which entitles the Plaintiff to obtain from the Court a remedy against another person or the facts which constitutes the essential ingredients of an enforceable right of claim. PER BABA IDRIS, J.C.A.

ACTION: HOW IS A CAUSE OF ACTION DETERMINED

To determine a cause of action, it is trite that recourse must be had to the statement of claim. See the case of OWURU & ANOR VS ADIGWU & ANOR (2017) LPELR-42763 (SC). PER BABA IDRIS, J.C.A.

JURISDICTION: MEANING AND NATURE OF JURISDICTION

Jurisdiction simply means a Court’s power to decide a case or issue. See Black’s Law Dictionary 9th Edition. Jurisdiction is the authority a Court has to decide matters that are litigated before it. See the case of MOBIL PRODUCING (NIG) VS. LASEPA (2002) 18 NWLR (PT. 798) 1 SC, where the Apex Court stated the various types of jurisdiction, substantive jurisdiction which refers to matters over which a Court can adjudicate and it is usually expressed by statutes. There is also territorial jurisdiction which is the focus of this appeal, and it is the territorial limit a Court has power to decide. It refers to the geographical area in which matters brought before a Court for adjudication arose. Courts are usually not seized of matters that occur outside their territory. See the case of DAIRO VS. UBN (2007) 16 NWLR (PT. 1059). PER BABA IDRIS, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. A. G. VISION CONSTRUCTION NIGERIA LIMITED 2. MR. ELLIE ABOU GHAZALEH APPELANT(S)

And

YEMSAL REPROC NIGERIA LIMITED RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated and filed on the 18th September, 2013 supported by an affidavit setting out facts, the Respondent as Plaintiff at the trial Court instituted an action under the undefended list procedure against the 1st and 2nd Respondents who were the defendants at the trial Court respectively and sought for the following reliefs against the Defendants jointly and severally:

The sum of N8,130,000.00 (Eight Million, One Hundred and Thirty Thousand Naira) only being the outstanding balance owed the Plaintiff by the Defendants for the actual executed quantities on the contract for Asphalt works at Ekwulobia-Nkpologwu-Akpo-Achina-Umuchu Road in Anambra State of Nigeria
2. Interest on the said sum of N8,130,000.00 calculated at the rate of Thirty Two Per centum (32%) per annum from the date of this writ until judgment
3. Interest on the Judgment Sum calculated at the rate of Twenty Five Percentum (25%) per annum from the date of Judgment until liquidation of the Judgment sum.
4. The Plaintiff’s Attorney’s Fee in the sum of N2,000,000.00 (Two Million Naira) only.

The Cost of this suit assessed at N250,000.00 (Two Hundred and Fifty Thousand Naira) only.Upon a consideration of the affidavit filed by the Appellants in support of the Notice of Intention to Defend the Suit, the suit was transferred to the General Cause list.
Before going into the appeal, the facts involved in this appeal are summarized hereunder.
The Respondent as plaintiff at the trial Court, instituted this action claiming that the 1st Appellant secured a Road Construction Contract from the Anambra State Government, of which it subcontracted to the Respondent the asphalting aspect of the contract on terms agreed by both parties.

The Respondent claims that even though it performed its own part of the obligations under the sub-contract, the Anambra State Government terminated the 1st Appellant’s contract for the said road construction which was as a result of the inability on the part of the 1st Appellant to deliver on a previous contract between it and the Anambra State Government.

The Respondent claims that as at the time the main contract was terminated, it has asphalted a distance of 9,700m2 at an agreed cost of

N28,130,000.00 out of which the 1st Appellant only paid her the sum of N20,000,000.00 and refused to pay the balance despite repeated demand.

The Respondent also claims that she obtained an overdraft facility from her bankers in order to execute the said subcontract.

On the other hand, the Appellants counter-claimed against the Respondent as follows:
1. The sum of N25,000,000.00 (Twenty Million Naira) only as genera/ damages for breach of Contract of the agreement signed by the parties.
2 The sum of N10,000,000.00 (Ten Million naira) only as damages for loss of goodwill in the eyes of the Government of Anambra State.

The Respondent at the trial Court opened its case on the 13th January, 2016 calling one witness who testified and tendered Seven (7) documents which were admitted and marked as Exhibits P1 – P7;
Exhibit P1 – Original agreement for Asphalt works at Ekwuiobia-Nkpologwu-Akpo-Achina-Umuchu Road, made between A. G Vision Construction Nig, Ltd and Yemsal Reproc Nig. Ltd and dated 28/02/2012.
Exhibit P2 – Photocopy of Addendum to the Agreement Exhibit P1 made between the same parties and dated 22/05/2012.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Exhibit P3 – Original letter dated 15th September, 2012 written by the Deputy MD of A.G Vision Construction [Nig. Ltd to the M.D. of Yemsal Reproc Nig. Ltd and captioned Asphalt surfacing Ewkolobia-Achina-Umuchu Road in Anambra State.
Exhibit P4 and P5 – Two booklets of waybill/delivery note for the period 30/5/2012 – 8/6/2012 and 8/6/2012, containing duplicates of waybills/delivery notes, by which Yernsal Reproc Nig. Ltd made deliveries of Asphalt to the Appellants at the relevant dates.
Exhibit P6 – Acknowledged Copy of letter dated 19/07/2013 written by the Law Firm of Okey Uzoho & Co., on behalf of the Plaintiff to the M.D of the Appellants and captioned overdue debt of N8,130,000.00 owed Yemsal Reproc Nig Limited.
Exhibit P7 – Original document dated November 29, 2011 being offer of NIOM banking facility made by First City Monument Bank to the MD Yemsal Reproc Nig Ltd.

The Respondent closed its case on the 13th January, 2016 and the matter was adjourned to 4th February, 2016 for the defence to open its case.

The Appellants opened their defence on the 4th February, 2016 and called one witness who

testified but tendered no document. The Appellants closed their case on 4th February, 2016 and the matter was adjourned to 30th March, 2016 for adoption of final written addresses, parties then filed and adopted their respective written addresses on the 14th March, 2017.

After considering the evidence led by the parties, the learned trial judge, Honourable Justice O. A. Adeniyi delivered judgment in the Suit No. FCT/HC/CV/33/13 on the 16th May, 2017 wherein the trial judge granted judgment in favour of the Respondent.

Dissatisfied with the judgment of the trial Court/ the Appellants filed a Notice of Appeal dated 12th June, 2017 comprising of Eight (8) grounds of appeal. The parties in the appeal before this Court filed and exchanged their respective briefs of argument.

In the Appellants’ brief of argument as settled by their counsel Ifere Jacob Ochogbur Esq., dated 19th September, 2017 and filed 20th September, 2017, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether or not the High Court of the Federal Capital Territory, Abuja (Trial Court) has jurisdiction over the suit instituted by

the Respondent at the Trial Court when the Cause of action arose in Anambra State? (Grounds 1 and 2 of the Notice of Appeal).
2. Based on Evidence before the Trial Court, whether or not the Trial Court was right when it held that the Respondent had proved its caser to justify Judgment being entered in favour of the Respondent for the sum of N7,840,000.00 (Grounds 2, 3, 4, 5, 6 and 7 of the Notice of Appeal).

On Issue One, the Appellants’ Counsel argued that this issue bring to focus the extent of the trial Court i.e. the territorial jurisdiction of the High Court of the Federal Capital Territory. Counsel argued that the issue of jurisdiction can be brought at any time and the fact that the Appellants participated in the proceedings at the trial Court by calling a witness cannot confer jurisdiction on the trial Court when it had no territorial jurisdiction. On this point, counsel cited the case of AWUSE V. ODILI (2004) 8 NWLR (PT. 876).

The Appellants’ Counsel also argued that the Appellants reside within the jurisdiction of the trial Court but that alone cannot confer territorial jurisdiction on the trial Court to entertain this matter more

especially, when the subject matter was wholly allegedly executed in Anambra State. Counsel further argued that the trial Court has the jurisdiction to entertain only matters that arose within the FCT, Abuja. On this point, counsel referred this Court to Section 257(2) of the 1999 Constitution (as Amended).
The Appellants’ Counsel also argued that in order to determine the jurisdiction of a Court, the Court is enjoined to look at the Statement of Claim before the trial Court and that a calm perusal of the statement of claim shows clearly that the Plaintiffs claim is premised on a contract for asphalt works which was purportedly executed at Ekwulobia-Nkpologwu-Akpo-Achina-Umuchu Road, Anambra State. On this point, counsel cited the case of A.G FED VS. A.G, LAGOS STATE (2017) 8 NWLR (PT.1566) 20 AT 36.

The Appellants’ Counsel also argued that the issue of jurisdiction of the trial Court to entertain the matter is very basic and fundamental to the proceedings and which led the trial Court entering judgment in favour of the Respondent. Counsel further argued that when the trial Court has no jurisdiction to entertain a matter, any decision that arises

from such proceedings becomes a nullity and is liable to be set aside. On this point, counsel cited the case of MADUKOLU VS. NKEDILIM (1962) 2 ALL NLR 581.

In conclusion on the argument of Issue One, the Appellants’ Counsel urged this Court to hold that in commencing this suit at the trial Court, the Respondent embarked on forum shopping which was condoned by the trial Court. Counsel further urged this Court to resolve this issue in the Appellants’ favour and declare the decision of the trial Court a nullity.

On Issue Two, the Appellants’ Counsel argued that the last clause in Exhibits P1 and P2 specifically provides that there shall be re-measurement and issuance of final certificate of actual quantity of work executed by the Plaintiff. Counsel further submitted that the words “subject to” contained in Exhibits P1 and P2 cannot be construed as being optional or permissive as found by the trial Court but constitute words of qualification, condition, dependent, limitation and subservient.

The Appellants’ Counsel also argued that Exhibits P1 and P2 suggests that the laying of the asphalt by the Respondent does not conclude the agreement

between both parties and that had the trial Court properly construed the words “subject to” it ought to have arrived at the conclusion that the asphalt work executed by the Respondent is not absolute or automatic but qualified or conditional by the relevant terms of Exhibit P1 and P2 which requires that the asphalt work executed by the Respondent is to be re-measured. On this point, counsel cited the case of BPS CONSTR. & ENGR. CO. LTD VS. FCDA (2017) 10 NWLR (PT. 1572).

The Appellants’ Counsel argued that there is no evidence before the trial Court which shows that final certificate was even issued to the Respondent by the 1st Appellant which would have helped the trial Court to determine the actual measure of work if any, executed under the contract by the Respondent. Counsel further submitted that without the re-measurement and issuance of certificate to the Respondent by the 1st Appellant, it will be grossly impossible for the trial Court to determine the measurement of work done by the Respondent at the site.

The Appellants’ Counsel also submitted that Exhibit P3 at page 302 of the Record of Appeal cannot qualify as admission that the

Respondent completed a distance of 91600m2 as found by the trial Court. On this point, counsel cited the case of SAMABEY INTERNATIONAL COMMUNICATIONS LTD VS. CELTEL NIGERIA LIMITED (2013) LPELR-20758 (CA) AT 30-31. Counsel further argued that Exhibit P3 cannot be construed as an admission since the trial Court had already found that Exhibit P3 complained about the quality of work allegedly executed by the trial Court.

The Appellants’ Counsel also argued that a calm perusal of Exhibit P3 shows that the 1st Appellant seriously objected to the 9600m2 of work which the Respondent claimed to have executed at site.

The Appellants’ Counsel argued that the Respondent in order to show that it allegedly executed the contract, tendered Exhibit P4 and P5 which only shows that asphalt was purportedly supplied to the site, and that the said Exhibits P4 and P5 and all exhibits before the trial Court does not show that this said asphalt were blended with sharp sand and laid on the ground to a finished thickness of not less than 50mm as stipulated in the contract between the 1st Appellant and the Respondent.

In conclusion on this issuer, the Appellants’ Counsel

argued that the law is not that all admissions are necessarily conclusive against the maker. On this point, counsel cited the case of NWANKWO VS. NWANKWO. Counsel further urged this Court to allow the appeal and set aside the decision of the trial Court.

On the other hand, the Respondent filed its brief of argument dated 10th December, 2018 and filed on 11th December, 2018 settled by its Counsel, Okey Neil Uzohor Esq. and raised two (2) issues for determination and they are:
1. Did the Suit fall within the jurisdictional competence of the Honourable Trial Court? (Ground 1 and 2)
2. From the Totality of the Evidence before the Court, did the Respondent discharge the onus of proof on her on the preponderance of evidence or balance of probabilities (Ground 3, 4, 5, 6, 7 and 8).

On Issue One, the Respondent’s Counsel argued that this appeal is not anchored on a case of breach of contract at the lower Court, but on action for recovery of debt, even though, it is conceded, the debt arose out of a subcontract performed in Anambra State, whereby the cause of action arose in the Federal Capital Territory Abuja, when the Respondent made a formal

demand on the Appellants for payment of overdue debt. That is to say that the cause of action arose in this suit on the 3rd August, 2013 at Abuja in the FCT.

The Respondent’s Counsel also argued that even assuming that the suit was actually founded on a breach of contract as is contended by the Appellants, it is not in dispute that the Rules of Court governing the place of instituting trial is the High Court of the Federal Capital territory, Civil Procedure Rules. On this point, counsel cited Order 9 Rules 3 and 4 of the said Rules. Counsel further argued that it is the contention of the Respondent that this suit is one of simple debt recovery which falls under the provisions of Order 9 Rule 4 of the said Rules.

In conclusion on the argument on this issue, the Respondent’s Counsel argued that all the argument including cited authorities advanced by the Appellants with respect to Issue One in their brief of argument are wholly misconceived and should be discountenanced by this Court.

On Issue Two, the Respondent’s Counsel argued that despite stating the obvious in his judgment at pages 428 – 432 of the Record of Appeal, the trial Court

further and relied on other corroborating direct and documentary evidence before it to anchor the judgment now complained of.

The Respondent’s Counsel also argued that the Appellants are on a fishing expedition with regards to their Issue Two. Counsel further argued that in a civil action the burden of proof is not static but preponderates in accordance with the evidence adduced by each party. On this point, counsel cited the case of DAODU VS. NNPC (1998) 3 NWLR (PT. 538) 355 S.C.

The Respondent’s Counsel argued that the Appellants were unable to proffer any evidence, whether from the Anambra State Government or howsoever to prove that the 9600m2 which they admitted, did not meet the standard agreed by the parties.
Counsel referred this Court to Section 133(1) and (2) of the Evidence Act.

In conclusion, the Respondent’s Counsel argued that in all, the points raised by the Appellants in their Issue 2 are points which the learned trial judge dealt with in depth and in extensor at pages 431 – 447 of the Record of Appeal and would adopt the reasoning of the trial judge and urged this Court to dismiss this appeal and to affirm the

decision of the lower Court.

RESOLUTION
Having summarized the arguments of counsel to the parties, I wish to adopt the issues raised by the Appellants herein, and I will address the issues thereon;
1. Whether or not the High Court of the Federal Capital Territory, Abuja (Trial Court) has jurisdiction over the suit instituted by the Respondent at the Trial Court when the Cause of action arose Anambra State?
2. Based on Evidence before the trial Court, whether or not the trial Court was right when it held that the Respondent had proved its case, to justify judgment being entered favour of the Respondent for the sum of N7,840,000.00

ISSUE ONE
Whether or not the High Court of the Federal Capital Territory, Abuja (Trial Court) has jurisdiction over the suit instituted over the suit instituted by the Respondent at the Trial Court when the Cause of action arose in Anambra State?

In dealing with this Issue, it is important that this Court considers the following:
– What is the Cause of action in the suit leading to this Appeal?
– What Court has the Jurisdiction to entertain the suit leading to this Appeal?

Issues of a valid cause of action and competent jurisdiction are very important to all judicial proceedings because they are necessary for any successful litigation.

Now that I have taken a look at the meaning of cause of action, it is now pertinent to look at what the cause of action in the suit leading to this appeal is.

To determine a cause of action, it is trite that recourse must be had to the statement of claim. See the case of OWURU & ANOR VS ADIGWU & ANOR (2017) LPELR-42763 (SC).

Looking at the Statement of Claim which was before the trial Court and which now forms part of the Record of Appeal before this Court, it is clear that the Plaintiff, now Respondent instituted this action to recover the balance of the contractual sum arising out of a contract between it and the Appellants (these are the aggregate of facts leading to the action).

The whole facts involved in this case culminated from the sub-contract entered into by the Appellants and the Respondent. See paragraphs 9 – 18 of the Statement of Claim at pages 42 – 43 of the Record of Appeal. Even the reliefs sought by the Respondent are tied to the contract. In simple terms, the Respondent claim at the trial Court is that the Appellants owe him a balance for the executed quantities on the contract for asphalt works

at Ekwulobia-Nkpolowu-Akpo-Achina-Umuchu Road in Anambra State of Nigeria which is the subject matter of the contract between the parties.

It is my opinion that the reliefs being sought for by the Respondent at the trial Court would not have arisen if not for the alleged failure of the Appellants to fulfill their obligation in the contract.

Also, by the Counter Claim which is also a different and distinct suit on its own, the Appellants sought for the following reliefs:
“5 The sum of N25,000,000.00 (Twenty-five Million Naira) Only as general damages for breach of contract of the agreement signed by both parties.
6. The sum of N10,000,000 (Ten Million Naira) Only as General Damages for loss of goodwill in the eyes of the Government of Anambra State.”

It is important to state that the Appellants’ appeal is on the whole decision of the Court which I interpret to mean both the decision of the trial Court on the Respondent’s claim and the Appellants’ claim at the trial Court. See the Notice of Appeal filed by the Appellants contained at pages 470 of the Record of Appeal.

Having examined both the claim of the Appellants and

the Respondents at the trial Court, I have come to the conclusion that the cause of action at the trial Court is one which arose out of the contract between the Appellants and Respondent.
What Court then has the jurisdiction to entertain the suit leading to this appeal? Is it the High Court of Anambra State where the contract was executed (the contract for asphalt works at Ekwulobia-Nkpolowu-Akpo-Achina-Umuchu Road in Anambra State of Nigeria) or the High Court of the Federal Capital Territory where the suit leading up to this appeal was instituted?
Jurisdiction simply means a Court’s power to decide a case or issue. See Black’s Law Dictionary 9th Edition. Jurisdiction is the authority a Court has to decide matters that are litigated before it. See the case of MOBIL PRODUCING (NIG) VS. LASEPA (2002) 18 NWLR (PT. 798) 1 SC, where the Apex Court stated the various types of jurisdiction, substantive jurisdiction which refers to matters over which a Court can adjudicate and it is usually expressed by statutes. There is also territorial jurisdiction which is the focus of this appeal, and it is the territorial limit a Court has power to decide. It refers

to the geographical area in which matters brought before a Court for adjudication arose. Courts are usually not seized of matters that occur outside their territory. See the case of DAIRO VS. UBN (2007) 16 NWLR (PT. 1059).
Having held that the cause of action arose from a contractual relationship between the Respondent and the Appellants, it is true that the subject matter of contract is more technical than other causes of action. This is because where the parties to a contract as in this case may be carrying on their businesses in different states or they contracted from different states, it may be difficult to determine which state High Court has jurisdiction. The appropriate Order to look at in this regard is Order 9 Rule 3 of the Federal Capital Territory (Civil Procedure) Rules, 2004 which provides:-
“All suits for specific performance, or breach of Contract; shall where the Contract ought to have been performed or where the Defendant resides or carries on business the Federal Capital Territory, Abuja, be commenced and determined in the High Court of the Federal Capital Territory, Abuja.”
Even Order 2 Rules 3 of the Anambra State High Court (Civil Procedure) Rules, 2006 where the

contract was performed also has similar provisions thus:
“All suits for the specific performance, or upon the breach of any contract, may be commenced and determined in the judicial division in which such contract was made or ought to have been performed or in which the defendant resides or carry on business.”
From the above provisions, it is clear that the place where the contract ought to have been performed or where the Defendant resides or carries on business may determine the jurisdiction of the Court. These conditions being disjunctive, so that any of them could give the Court jurisdiction to hear a matter before it.
Where the parties carry on their business in two different jurisdictions, it may be important to ascertain where the acceptance took place because that is the place where the contract would have been consummated but this is not clear from the statement of claim.
However, by virtue of the provisions of Order 9 Rule 3 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 and Order 2 Rule 3 of the Anambra State (Civil Procedure) Rules, 2006

and having in mind that the Appellants reside and have their business in the Federal Capital Territory, Abuja, it is my view that the action was properly commenced and heard in Abuja. It therefore follows that the trial Court has the jurisdiction to hear the matter as instituted before it.
In addition, it is also trite that to determine jurisdiction, it is the statement of claim that a Court will look at. See the case of INAKOJU VS ADELEKE & ORS (2007) LPELR-1510 (SC).
Looking at the documents pleaded in the Statement of Claim especially Exhibits P1 and P2 both contained at pages 47 and 45 of the Record of Appeal, the introduction to both Exhibits reads thus:
“This agreement is made between A, G Vision Construction Nigeria Limited Address: Plot 348, J.C. Obande Closer Utako District, Abuja and Yemsa, Reproc Nigeria Limited Address: Kilometer 12, Amansa, Enugu Onitsha Expressway.”
Even the letter dated 19th July, 2013 (Exhibit P6) by the Respondent through its Counsel demanding for the balance of the contractual sum was addressed to the Appellants at their place of business in Abuja and it was also acknowledged.

Even the Appellants’ Counsel in the Appellants’ Brief of Argument confirmed that the Appellants carry on its business in Abuja (Plot 348, J. C. Obande Close, Utako District, Abuja) even though he argued that the said Order 9 Rule 3 of the Rules of the trial Court which was cited by this Court somewhere in this judgment, relates to Judicial Division. There would be no need to over-flog this issue as I have dealt with same as regards territorial jurisdiction and the Appellants’ Counsel merely misinterpreted the decision of the Court in NIGER BUILD CONST. CO. LTD VS. GIWA (2003) 12 NWLR (PT. 836) 66 AT 98-99 which counsel cited in paragraphs 4.07-4.09 of the Appellants brief of argument as it relates to territorial jurisdiction and Judicial Division.
Also, the Appellants’ Counsel misinterpreted Section 257(2) of the Constitution. However, for better interpretation, I would reproduce both Sections 257(1) and 257(2) of the Constitution thus:
“257
1. Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such otter jurisdiction as may be conferred upon the High Court of the

Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
2. The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court of the exercise of its Appellate or supervisory jurisdiction.” (Emphasis Mine)
It is a cardinal principle of interpretation that provisions of statute should not be read in isolation. Thus to understand the true meaning of a statute, the statute must be read as a whole. See AKPAMGBO-OKADIGBO & ORS VS. CHIDI & ORS (2015) LPELR-24564 (SC).
Looking at the sentence and words that I emphasized on under Subsection (1) and (2), it is clear

that in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine the matters mentioned therein.
In interpreting this provision, consideration would be had to the Rules of the trial Court. This inclusion of the word “such other jurisdiction as may be conferred upon it by law” has empowered the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 which by virtue of Order 9 Rule 3 jurisdiction on the trial Court as it relates to the cause of action at hand and also having regard to the fact that the Appellants resides within the jurisdiction of the trial Court.
Subsection (2) is the beginning of another paragraph after Subsection (1) which “includes” every other proceeding which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.
Subsection (2) does not preclude the provision of Subsection (1) which has clearly

provided that the jurisdiction conferred by Section 272(1) is in addition to any such other jurisdiction as may be conferred upon the High Court of the Federal Capital Territory by Law and in this case, the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004.
Simply put, the Constitution has empowered the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 to vest jurisdiction on the trial Court hence, the application of Order 9 Rule 3, High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 to the case at hand.
From the reproduced Sections above, it is my considered view that the provision is very clear and unambiguous. It is now settled that in the area of construction, the primary concern of the Courts is the ascertainment of the intention of the law makers. See the case of ADESANOYE & ORS VS. ADEWOLE & ANOR (2000) LPELR-142(SC).
In conclusion therefore and in consideration of all my findings on this Issue, I am of the very strong and unshaken view that the cause of action leading to the suit before the trial Court is one of “Contract” and not one of

“simple debt recovery” as argued by the Respondent’s Counsel.
Also, the trial Court was vested with not only the jurisdiction to hear the matter leading to the appeal but to also determine same. I hereby resolve this issue against the Appellant.

ISSUE TWO
Based on the Evidence before the Trial Court, whether or not the Trial Court was right when it held that the Respondent had proved its case to justify judgment being entered in favour of the Respondent for the sum of N7,840,000.00?

Under relief 1, the claim of the Respondent was:
The sum of N8,130,000.00 (Eight Million, One Hundred and Thirty-Thousand Naira) only being the outstanding balance owed the Plaintiff by the Defendant for the actual executed quantities on the Contract for Asphalt works at Ekwulobia-Nkpologwu-Akpo-Achina-Umuchu Road, Anambra State of Nigeria.

And the trial Court granted the relief but in the sum of N7,840,000.00. This relief of N7,840,000.00 granted in favour of the Respondent at the trial Court is that which the Appellants now contest under this Issue.

The Appellants’ Counsel also argued that Exhibit P3 cannot be taken as an

admission to the fact that the Respondent carried out 9600cm2 of the contracted work claimed to have been executed at the site when by Exhibit P3, the Appellants actually objected therein, that the work done by the Respondent is substandard.

The Appellants’ Counsel has argued that the quantities executed are subject to re-measurement final certificate to be adjusted according to actual executed quantities and that the Court in arriving at its decision did not interpret what the word “subject to” implies and that the trial Court also did not cite any authority to support its finding.

The Appellants’ Counsel further argued that it will be grossly impossible for the trial Court to determine the measurement of work done by the Respondent at the site. It is the duty of the Court to interpret the agreement of parties in accordance with the terms of the contract as entered into by the parties. It is trite that Courts are imbued with judicial authority and jurisdiction to give life to contractual agreements made between parties, provided that such contracts are rooted within the law. The law is that once the terms of contractual agreements between

parties are clear and unambiguous, it is the duty of Courts to construe such agreements/contracts in line with the clear intention of the contracting parties. See GABRIEL OLATUNDE VS. OBAFEMI AWOLOWO UNIVERSITY & ANOR (1998) 4 SCNJ 59.

First, I would interpret the meaning of “Subject to” as a word and as used in Exhibits P1 and P2. The word “subject to” in literal terms means “dependent on something else to happen.” The concluding clause of both agreements (Exhibits P1 and P2) executed by both the Appellants and the Respondent read thus:
“The quantities executed are subject to re-measurement final certificate to be adjusted according to actual executed quantities.” (Emphasis Mine).

The meaning of the above reproduced clause of the agreement is clear and unambiguous. Reading in conjunction with the entire agreement and having in mind the meaning of the word “subject to” as already buttressed above, it is clear that according to the quantities of asphalt work to be done by the Respondent, the Appellants are to issue a re-measurement final certificate to be adjusted according to actual executed quantities.

The above also connotes that the Appellants would confirm the exactness of the quantities of work done by the Respondent. I therefore do not agree with the learned trial judgers findings at page 445 of the Record of Appeal that “subject to” as used in the agreement makes the issue of re-measurement permissive or optional but not mandatory and that either party is entitled to make a demand for re-measurement in order to determine the actual work done. I do not make sense of the said interpretation and I do not know what to make of it because I seem not to understand how the trial judge arrived at the said finding in this regard.

Going forward, the Appellants did not deny that work was not done by the Respondent but instead, they complained of the standard of work done, the pace of work and the fact that these reasons made the Anambra State Government to revoke the Contract. See paragraphs 5 and 6 and Exhibits P3.

The Appellants in paragraphs 5 and 6 of the Appellants Statement of Defence stated thus:
“1. In specific denial of Paragraph 8 of the Plaintiff’s statement of Claim, the Defendants state that the Plaintiff could not complete the work due to

sluggish and slow attitude exhibited in the Execution of the Contract by the Plaintiff and this made the Defendants Client, Ministry of works Awkaz Anambra State to revoke the contract. This state of affairs was communicated to the Plaintiff by the Defendants in their letter dated 15th September, 2012, The said letter is hereby pleaded and shall be relied upon at the Trial of this Suit
2. The Defendants in specific denial of Paragraph 9 of the plaintiff’s statement of claim state that the Plaintiff breached the contract by not meeting up with the deadline given to them by the Defendants and this lead to the revocation of the contract by the Anambra State Government. This was also communicated to the Plaintiff in the letter dated 15th September, 2012 which has already been pleaded.
In Exhibit P3, they also stated thus:
“Also note that your sluggish and slow attitude towards the works has made our relationship with our client deteriorate, making the client to issue us with a quit notice.”

This evidence as reproduced above goes to show that the Appellants acknowledged the fact that work was done by the Respondent. However, there is

nowhere on record where it can be seen that the Appellants issued the Respondent a re-measurement final certificate to enable this Court determine the measurement of 9600 square meters of work done by the Respondent.

During cross-examination of the Appellants’ witness DW1, he stated thus:
“I visited the site of the contract in contention on regular basis. By “Regular basis” I mean weekly basis.”
He further stated;
“We have a civil engineer who interprets the Volume, texture and the work done Every Asphalt was tested before spraying.”

I therefore wonder why no certificate was issued by the Appellants to the Respondent when they confirmed that work by the Respondent was actually in progress at the site. There is nothing now before this Court to clearly determine the exact square meter of work done by the Respondent before the termination of the contract. This has now redirected my gaze to Exhibit P3.

In the said Exhibit P3, the Appellants referred to the insistence by the Respondent to issue it with a letter stating the amount of work done on site thus:
“Reference is made to the above mentioned

subject and upon your insistence on us to issue you with a letter stating the amount of work you have done on site.”

The above goes to show that the Respondent actually requested for the certificate of re-measurement to be issued to it but the Appellants failed to so issue but instead stated that:
“the quality of the works and the thickness has to be approved by our client before any certification is given on works done by you.”

As against the above reproduced statement by the Appellants, there is nowhere in the Exhibit P1 or P2 that the issuance of re-measurement certificate was subject to quality of the work and thickness being approved by the Appellants’ client.

Also, PW1 during his evidence at the trial Court contained at page 288 of the Record of Appeal stated thus:
“The evidence of actual work we did can be seen at the site of the Contract (paragraph 15 of Statement on Oath), The Defendant was represented at the time the measurement of the work I did was done. One Engr. Ade, resident engineer, also represent the Anambra State Government.”

In my own view, this statement was affirmed by the

Appellants and also that the amount of work done was 9600cm2 in Exhibit P3 thus:
“The 9600cm2 is of no value to us or you until the client has approved the works and the defects that are already on the ground are repaired by your company on your own cost.”(Emphasis Mine).

This is the only document before the Court from which this Court can conclude that the amount of work done by the Respondent is 9600cm2.

The DW1 also gave evidence as contained at page 292 of the Record of Appeal thus:
“it was during our second visit that we measured and saw that as the Plaintiff progressed with the Asphalt laying was reducing in size.” (Emphasis Mine).

I am just at the moment concerned with only the underlined portion above.

In summary, my findings as illustrated above is that the amount of work done by the Respondent is N9600cm2.

Now with regard to the quality of the work done by the Respondent, the PW1 in his evidence at page 288 of the Record of Appeal stated that:
“The work specification given to me by the Defendant 50mm (Thickness of the Asphalt). The engineers who executed the contract on behalf of the

Plaintiff complied with the specification.”
The DW1 also gave evidence that:
“we have a civil engineer who interprets the volume, texture and the work done, every Asphalt was tested before spraying.”

I therefore do not understand how the same DW1 further gave evidence that:
“we measured and saw that as the Plaintiff progressed with the Asphalt laying was reducing in size. We gave the Plaintiff a letter of termination.”

I find it amazing that the Appellants who had an engineer at the site who tested the volume, texture of the asphalt before spraying would now come back to say that it was reducing in size.

In totality, and having in mind all my findings on this issue, I strongly hold the view that the work done by the Respondent is measured at 9600m2. If the work done by the Respondent is 9600m2, what then is the total amount owed the Respondent by the Appellants? The amount per square meter agreed by the parties for any work done is N2900. See page 169 of the Record of Appeal.

Calculating N2900 by 9600 meter would equal N27,840,000. It is already on record that the Appellants had already paid the

Respondent N20,000,000.00 (Twenty Million Naira) for the job done. If N20,000,000.00 is deducted from N27,840,000 the balance to be paid to the Respondent would be N7,840,000 (Seven Million, Eight Hundred and Forty Thousand Naira) only.

On this point, I agree with the conclusion of the trial judge at page 449 of the Record of Appeal that “it becomes apparent that the outstanding balance payable by the 1st Defendant to the Plaintiff” is N7,840,000.00, but not the amount of N8,130,000.00 claimed. I hereby hold that the Respondent is entitled to the sum of 7,840,000 (Seven Million, Eight Hundred and Forty Thousand Naira) only as balance of work done.

Apart from my findings where I disagreed with the trial judge, I am of the strong view that based on the evidence before the trial Court, the trial Court was right when it held that the Respondent had proved its case, to justify judgment being entered in favour of the Respondent for the sum of N7,840,000.00, I hereby answer this issue in the affirmative against the Appellants.

In the final result, I uphold the decision of the trial Court in dismissing this appeal in its entirety.

The appeal is hereby dismissed. I make no further order as to cost.

PETER OLABISI IGE, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I was opportuned to read in advance the lead judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

I agree with the reasoning and conclusion reached therein. I therefore also dismiss the appeal.
I make no order as to costs.

Appearances:

Ifere Esq., with him, I. D. Onah Esq.For Appellant(s)

Uzoho Esq., with him, I. Madueke Esq.For Respondent(s)