ALH. MUSTAPHA ISA v. C.G.C NIGERIA LIMITED
(2014)LCN/7418(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of July, 2014
CA/K/56/2013
RATIO
CONTRACT: CLAIM ON QUANTUM MERUIT; WHETHER A PLAINTIFF CAN RECOVER THE VALUE OF THE SERVICES RENDERED UNDER AN UNENFORCEABLE CONTRACT AND MAY RECOVER ON A QUANTUM MERUIT
It is trite law that where a plaintiff can prove the rendering of services under an unenforceable contract, the contract is admissible evidence of the value of the service rendered and may recover on a quantum meruit basis. In other words where work is done by the plaintiff at the express or implied request of the defendant and had the benefit, the plaintiff can recover the value of work done on the basis of quantum meruit. Thus, the claim on quantum meruit is a way of preventing unjust enrichment on the part of the defendant. See; S.B.N Plc V. Opanubi (Supra) at 462-463. per. ABDU ABOKI, J.C.A.
APPEAL: FINDING OF FACT NOT APPEALED AGAINST; THE IMPLICATION OF FINDINGS OF A FACT NOT APPEALED AGAINST
The finding of fact not appealed against remains valid and binding. See; Golden Const Co. Ltd V. Stateco Nig. Ltd (2014) 8 (NWLR) (Pt 1408) pg. 171 at page 198; Kraus Thompson Org. Ltd v. Unical 2004 9 NWLR Pt. 879 pg. 631 at 653. per. ABDU ABOKI, J.C.A.
PRACTICE AND PROCEDURE: PLEADING; THE PURPOSE OF PLEADING
The purpose of pleading among other is to serves as notice to the party of what to expect in Court and thus to avoid parties springing surprises at the trial. See; Odogwu V. Odogwu (1990) 4 NWLR AT 224; Overseas Const Ltd Vs Creek Enter. Ltd (1985) NWLR (Pt. 13) pg. 407. per. ABDU ABOKI, J.C.A.
CONTRACT: QUANTUM MERUIT; WHETHER A PROMISE TO PAY ON QUANTUM WOULD BE IMPLIED WHERE ONE PERSON HAS EXPRESSLY OR IMPLIEDLY REQUESTED ANOTHER TO RENDER HIM A SERVICE WITHOUT SPECIFYING ANY REMUNERATION, BUT CIRCUMSTANCES OF THE REQUEST IMPLY THAT THE SERVICE IS TO BE PAID FOR
It is trite law that where one person has expressly or impliedly requested another to render him a service without specifying any remuneration, but circumstances of the request imply that the service is to be paid for as in the instance case, there is implied a promise to pay on quantum meruit. See; S.B.N Plc V. Opanubi (supra) at 463-464. per. ABDU ABOKI, J.C.A.
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
ALH. MUSTAPHA ISA Appellant(s)
AND
C.G.C NIGERIA LIMITED Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Katsina State High Court of Justice delivered on 27th November, 2012 by S.A. Mahuta J.
The Appellant was the Plaintiff at the lower Court while the Respondent was the Defendant.
By the writ of summons dated 13th December, 2007 filed on 17/12/2007 in suit No. KTH/54/2007 the Appellant sued the defendant claiming the following reliefs;
a. “The difference between the amount expected and the amount paid by the defendant N32,446,507,30K
b. General damages N20,000,000.00k” (Underline mine)
Brief facts of the case leading to this appeal are as follows;
The defunct Petroleum Trust Fund (PTF) awarded a contract to the Respondent. The Respondent awarded a sub-contract to the Appellant to construct Eleven Residential Houses for Engineers representative at Sabke Dam, Irrigation and water supply project Daura, Katsina State.
The trial Court in its judgment held inter alia as follows;
“….It is therefore my considered but firm belief that the plaintiff had woefully failed to prove his claim against the defendant and same is hereby dismissed for lack of merit….”
It is against the above Judgment that the Appellant’s amended notice of appeal dated 7/3/2014 was filed and it contained 7 grounds of appeal.
The Appellant in accordance with the rules of this Court filed his brief of argument on 10/3/2014 containing 3 issues for determination of the appeal. They are adumbrated as follows;
1. Whether the Appellant claims rendering of service under an unenforceable contract, recover on the services rendered on a quantum meruit? Or whether work done or services rendered by the Appellant at the request of the Respondent and of which the Respondent has benefited; the Appellant can recover the value of the work done or services rendered on a quantum meruit.
2. Whether there is any evidence adduced by the Appellant to justify that the Appellant expended any amount of money to back up his claim?
3. Whether Exhibit 23 signifies the last payment in respect of the project?
Learned counsel to the Respondent in his brief of argument adopted the 3 issues formulated by the Appellant for the determination of this appeal. This appeal will therefore be determine on the three issues accordingly.
ISSUE ONE
Whether the Appellant claims rendering of service under an unenforceable contract, recover on the services rendered on a quantum meruit? or
Whether work done or services rendered by the Appellant at the request of the Respondent and of which the Respondent has benefited; the Appellant can recover the value of the work done or services rendered on a quantum meruit?
Learned counsel submitted that it is not in doubt that the Respondent’s awarded a sub-contract to the Appellant to construct 11 Senior Staff Quarters at Sabke Dam in Daura Local Government, Katsina State, which the Appellant carried out. He referred the Court to paragraph 13 of the Appellant’s statement of claim, Exhibit 8-16, and Exhibit 21-22 and the trial Court’s findings at page 115 of the printed record.
He maintained that when the Project Manager of the Respondent received complaints from Hydro-plan concerning alterations, installation, electrical and roofing of the said project, same was forwarded to the Appellant for compliance. The Appellant drew the attention of the Respondent to the area given in the subsequent drawing of Hydro-plan Associates which he claimed to be more expensive than the previous drawing by En-Plan.
He maintained that apart from instruction to insert or remove certain things in the sub-contract project through the Project Manager of the Respondent, the Appellant did not receive any information from hydroplan associates directly. He referred the Court to Exhibits 8-19.
Learned counsel submitted that after the Appellant completed the construction of the 11 Senior Staff Quarters in compliance with the specification in the hydroplan drawing and submitted his list of expenses with his charges to the Respondent for payment, the Respondent refused to pay. The Appellant instructed his lawyer to write to the Respondent upon receiving the lawyer’s demand letter Exhibit 21, the Respondent offered N5 Million Naira which the Appellant refused and instituted this action.
Learned Appellant’s counsel referred the court to the trial court’s finding on page 115 of the printed record and submitted that the trial Court ought to associate its findings with the Appellant request of quatum meruit. He also referred the Court to pages 116 and 123 of the printed record and the cases of;
POWEL V. BROWN (1954) 1 ALL E.R 484.
ALFOTRIN LTD V. A.G. FEDERATION & 1 OTHER (1996) 12 SCNJ 236 AT 269.
He finally submitted that since the trial Court found as a fact that the work expected from the Appellant was done to the satisfaction of the Respondent. The Appellant put a claim of N32, 446,507.30k but Respondent proposed N5 Million. He argued that it is the duty of the Court to determine how much is due to the Appellant.
He urged the Court to resolve this issue in favour of the Appellant.
Learned Respondent’s counsel submitted that the Appellant did not make a case of breach of contract based on quantum meruit at the lower Court. He referred the Court to pages 2 to 8 of the printed record. He argued that the Appellant’s case at the trial Court was based on Exhibits 1-22.
He maintained that Exhibit 1 is the contract document between the defunct PTF and the Respondent, and that by the doctrine of privity of contract, a contract cannot confer rights or impose obligation on strangers to it. The Appellant being stranger to Exhibit 1 cannot establish a case in contract against the Respondent. He referred the Court to the cases of; ALFOTRIN LTD v. A.G FEDERATION & 1 OR. (1996) 12 SCNJ 236-269 AT 254-255.
NNUBIA V. A.G (2009) 40 NSCQR PG.90-162 AT 153.
To further buttress the fact that the Appellant did not make a case for breach of contract based on quatum meruit at the lower Court, the Respondent counsel refer the Court to Exhibits 2. He submitted that a careful scrutiny of signature column in Exhibit 2 will show that the Appellant signed in his capacity as a Director on behalf of M.I INWALA K/KAURA KT. The name of the Appellant is not mentioned anywhere in Exhibit 2. Therefore, the proper party to sue on Exhibit 2 is M.I. INWALA K/KAURA KT. not the Appellant (a managing director). He referred the Court to the cases of;
PATRICK OKOLO & 7 OR V. UNION BANK NIGERIA LTD (2004) Vol. 17 NSCQR 105-139 AT 130.
WEST AFRICAN SHIPPING AGENCY NIG. LTD v. KALLA (1978) 3 SC 21-23 AT 27-30.
Learned Respondent’s counsel submitted that the law is that all contract made by an agent for a disclosed principal is in law the contract of the principal. The principal and not the agent is the proper party to sue or be sued. He referred the Court to the cases of;
ATAGUBA AND COMPANY VS. GURA NIGERIA LTD (2005) 21 NSCQR PG.720-745 AT 739;
TIJJANI BAMBE & 6 ORS v. REGISTERED TRUSTEES OF IJAIYE NATIONAL SOCIETY OF LAGOS (1977) 1 SC 1 AT 8;
SKENCONSULT NIG. LTD & 1 OR. v. GODWIN SEKONDY UKEY (1981) 1 SC PG. 6-39 AT 26.
He argued further that Exhibit 2 did not specify the amount to be paid to Respondent by the PTF and also did not specify the amount to be paid to the Appellant by the Respondent. He submitted that payment of 60% to the Appellant as contained in Exhibit 2 was not supported by any consideration. He submitted therefore that there is no valid contract enforceable at law. He referred the Court to the case of; ALFORTRIN V. A.G FEDERATION (SUPRA).
Learned counsel insisted that consideration is a vital ingredient of a valid contract and in the instance case Exhibit 2 did not offer a clear consideration for construction of 11 senior staff quarters at Sabke Dam site and that being the case the contract is unenforceable. He referred the Court to the cases of;
JOHN A. OSAGIE V. VINCENT v. EGHAREVBA (2004) ALL FWLR (PT. 199) PG. 1431 AT 1142;
LEADWAY COMPANY LTD VS. ZECO NIG. LTD (2004) 18 NSCQR (PT.1) PG. 394 AT 405;
INCAR NIGERIA PLC & 1 OR. V. BOLEX ENTERPRISES NIG. (2001) 6 NSCQR (PT.II) PG. 692 AT 719.
He argued further that the Appellant in Exhibit 4 admitted that he had gone through the specification given to him on 29th July, 1998 and accepted the conditions in Exhibit 2 without informing the Respondent of any variation in cost of construction and that there is also no clause in Exhibit 2 promising to reimburse the Appellant.
He submitted that where parties have embodied the terms of their contract in written document, extrinsic evidence is not admissible to add or vary the terms of the written instructions. He referred the Court to Section 4 of the Statute of Fraud 1677 and the cases of;
LARMIE DATA PROCESSING MAINTENANCE AND SERVICES LTD (2006) ALL FWLR (PT. 296) PG. 775 AT 792;
WILSON A. GBAHOWE V. EMMANUEL OSAYIOBASA AND ANOR. (1966) ALL NLR PG. 426 AT 438.
Learned counsel contended that the finding of the trial Court that the Appellant has incurred additional expenses on behalf of the Respondent was made in error and cannot stand in the light of established principles of law.
He maintained that the case of POWEL V. BROWN (SUPRA) cited by the Appellant is not applicable to this case, since the Appellant has been paid in full. Exhibit 23 is the receipt evidencing the final payment made to the Appellant and the Respondent did not at any time proposed to pay the sum of N5 Million to the Appellant. He argued that Exhibit 22 did not emanate from the Respondent.
Learned counsel insisted that the Appellant cannot recover on quantum meiruit basis because there is nothing in his statement or Exhibit 22 empowering him to so claim and if the Appellant intend to claim quantum meruit he ought to have pleaded same in his statement of claim, as the Court cannot make case for the parties different from what they set out in their pleadings. He referred the Court to the cases of;
ISHOLA v. UNION BANK OF NIG. LTD (2005) 21 NSCQR PG. 167 AT 178.
He submitted that Appellant has been paid in full and as such he is not entitled to any other remuneration from the Respondent, more so the Appellant has not shown that his claim is bonafide brought upon quantum meruit basis. He referred the Court to the case of; SAVANNA BANK OF NIG. PLC V. OPANUBI (2004) ALL FWLR (PT. 222) PG. 1587 AT 1609.
He urged the Court to resolve this issue in favour of the Respondent.
The term quantum meruit means “as much as he has earned”. See; S.B.N Plc V. Opanubi (2004) 15 NWLR (pt. 896) pg. 437 at 463.
It is trite law that where a plaintiff can prove the rendering of services under an unenforceable contract, the contract is admissible evidence of the value of the service rendered and may recover on a quantum meruit basis. In other words where work is done by the plaintiff at the express or implied request of the defendant and had the benefit, the plaintiff can recover the value of work done on the basis of quantum meruit. Thus, the claim on quantum meruit is a way of preventing unjust enrichment on the part of the defendant. See; S.B.N Plc V. Opanubi (Supra) at 462-463.
In the instant case, the trial Court held in its finding at page 116 of the printed record thus;
“I have earlier in this judgment concluded that both plaintiff and the defendant had abandoned their contractual obligation under exhibit 2 but that contract is still the basis of the relationship between the parties and it is not in doubt that the plaintiff had incurred additional expenses on behalf of the defendant…” (Underline mine for emphasis).
The finding of fact not appealed against remains valid and binding.
See;
Golden Const Co. Ltd V. Stateco Nig. Ltd (2014) 8 (NWLR) (Pt 1408) pg. 171 at page 198;
Kraus Thompson Org. Ltd v. Unical 2004 9 NWLR Pt. 879 pg. 631 at 653.
In the instance case the findings of the trial Court that parties abandoned their contractual obligation under Exhibit 2 and that the Appellant incurred additional expenses is not challenged on appeal, therefore binding on the parties. Therefore, the law imposes obligation to pay reasonable sum based on quantum meruit.
It is the contention of the Respondent that the Appellant did plead quantum meruit in its statement of claim and there was no oral or written agreement to effect the specifications in the hydro-plan associates drawing between the parties. It is trite law that a party claiming in quantum meruit must prove his claim by stating or itemising the work he has done. See; S.B.N Plc V. OPANUBI (SUPRA). In the instance case the Appellant as plaintiff in its statement of claim at the lower Court in paragraph 18 of page 5 of the printed record pleaded that he had sent a comprehensive list of expenses claimed, to the Respondent i.e. Exhibit 17 which was based on the then current market value of the items used in the construction. The Respondent in its statement of defence on paragraph 9 of page 16 of the printed record did not deny the fact that the list was sent to it.
It is trite law that where one person has expressly or impliedly requested another to render him a service without specifying any remuneration, but circumstances of the request imply that the service is to be paid for as in the instance case, there is implied a promise to pay on quantum meruit. See; S.B.N Plc V. Opanubi (supra) at 463-464.
In the instance case there was an implied request by the Respondent to the Appellant to effect specifications of hydroplan associates drawings which the Appellant complied and no remuneration or price has been fixed for it. The trial Court in its finding at page 123 of the printed record thus;
“…Both counsel in their address at the end of the trial agreed to this scenario consequent upon which the learned counsel to the plaintiff submitted in his address that since it is obvious that exhibit 2 was no longer operational then they were claiming under the equitable relief of quantum meruit and went to outline and called on the Court to enter judgment in favour of the plaintiff on that basis. The learned counsel to the defendant did not reply to this so it is assumed that he had no objection, on this line of thinking…” (Underline mine for emphasis).
The obligation to pay reasonable remuneration for the work done when there is no binding contract between the parties as in the instance case is imposed by rule of law and not by an inference of fact arising from acceptance of service by the Respondent. See;
Int’l Nigerbuild Cond. Co Ltd Vs Giwa (2003) 13 NWLR (Pt 836) pg. 69 at 111-113;
KPEBIMOH v. BOARD OF GOVERNORS, WESTERN IJAW (1993) 6 NWLR (PT. 298) 148 SC.
The purpose of pleading among other is to serves as notice to the party of what to expect in Court and thus to avoid parties springing surprises at the trial. See;
Odogwu V. Odogwu (1990) 4 NWLR AT 224;
Overseas Const Ltd Vs Creek Enter. Ltd (1985) NWLR (Pt. 13) pg. 407.
In the instance case the Appellant in paragraphs 21 and 22 of its statement of claim at page 6 of the printed record pleaded and claim for the difference between the amount expended on the sub-contract job and the amount paid to him by the Respondent. It has been argued that the amount paid by the Respondent to the Appellant is not equivalent to the 60% contemplated by the parties under paragraph 7 of exhibit 2 (i.e. the abandoned agreement) nor was it equivalent to cost of the work done.
The trial Court in its judgment at page 114-115 of the printed record found thus;
“One of the issues posed for determination by the learned counsel to the plaintiff was whether the plaintiff has remedy in law. I think the answer is in the affirmative and that the remedy is what the plaintiff’s counsel said could come under the equitable relief of quantum meruit. This is more particularly so because it is very clear that both parties have either abandoned the terms of their contractual agreement as contained in exhibit 2 or refused to abide by same for reasons best known to them..” (Underline mine)
The Appellant pleaded Exhibit 17 i.e. the comprehensive list of materials used in the sub-contract agreement and their expenses; it was tendered and admitted in evidence by the trial Court without any objection. It is trite law that where a counsel stands by and allows exhibits to be tendered to become evidence without any objection, he cannot be heard to later complain about same. See;
Adeleke Vs State 2014 All FWLR (Pt. 722) pg. 1652 at 1664.
I have said earlier in this judgment that the purpose of claim on quantum meruit is to prevent unjust enrichment on the part of the defendant.
The Appellant claimed that the Respondent’s Project Manager instructed him to effect the specification in the hydro plan drawing, and it is not in dispute the Appellant has done the work in compliance with the said specification. As rightly observed by the learned Respondent counsel, all contract made by an agent of a disclosed principal is in law the contract of the principal. Therefore, the trial Court acted wrongly when it refused to base its findings on the material before it, on what the Appellant is entitled to as remuneration based on the quantum meruit.
Therefore, this issue is resolved in favour of the Appellant.
ISSUE TWO
Whether there is any evidence adduced by the Appellant to justify that the Appellant expended any amount of money to back up his claim?
Learned Appellant’s counsel contended that Exhibits 9-16 were the request of Hydro plan associates to the Appellant through the Respondent. The Appellant was to affect the repairs contained therein. In paragraph 16 of his statement of claim the Appellant stated that the drawing and specification of hydro plan associates has a lot of alterations, installations and material requirements more than the earlier En-plane drawings given to them.
Learned counsel submitted that all items listed in Exhibits 9-16 were either purchase by the Appellant or ordered by him to affect the repairs as contained in the said Exhibits. The claim of the Appellant was the difference contemplated when the Respondent changed from En-plane drawings to Hydro-plan drawings which the Appellant was orally asked effect without fixed remuneration.
He argued further that Exhibits 9-16 also were documents which confirmed that works mentioned in the said Exhibits 17 were affected by the Appellant. He submitted that both documentary and oral evidence corroborated the evidence of the Appellant that he expended the amount claimed. The evidence of Engineer Mustapha Kamaludeen at pages 119-121 of the printed record further supported the evidence of the Appellant.
He argued that had the Respondent challenged the items listed in Exhibit 17 that is when the Appellant will be required to produce the receipts for the purchased items. He maintained the Respondent an also evoke Order 31 rule 1 of the Katsina State High Court Civil Procedure Rules to request for discoveries. He referred the Court to the case of; FAMUYIDE v. IRVIN & CO. LTD (1992) 9 SCNJ 75.
He urged the Court to resolve this issue in favour of the Appellant.
In his response the learned Respondent’s counsel reiterate the fact that Exhibits 8-16 are correspondences from hydro plan associates to the Project Manager of the Respondent and they were not even copied to the Appellant. He insisted that the witness who testified on behalf of the hydro plan made it clear that they dealt with the Respondent and not the Appellant. He submitted that Appellant is not a privy to Exhibit 8-16 and as such cannot benefit therein. He referred the Court to the case of; ALFOTRTN V. A.G FEDERATION (SUPRA) AT 254-255.
He contended that Exhibit 17 the purported list of expenses was not signed by the Respondent or address to it, therefore a worthless document. He referred the Court to the cases of;
OMEGA BANK PLC V. OBC LTD (2005) 27 NSCQR PG. 771-805 AT 794.
OGBAHON V. REGISTERED TRUSTEE C.C.C.G 2001 FWLR PT. 80 PG. 1496 AT 1520.
Learned counsel maintained that Exhibit 17 bears no date and no receipt covering the purchase. He urged the Court to invoke Section 167 (d) of the Evidence Act 2011 against the Appellant for withholding evidence. He submitted that the Appellant has failed to prove its case. The Court was referred to the case of; SALAUA V. ARABA (2004) ALL FWLR (PT. 204) PG. 88 AT 132-133.
He argued further that there is nothing in Exhibit 2 authorising the Appellant to incur additional expenses. He submitted that by Section 131 (1) of the Evidence Act 2011 who ever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. The burden lies on the Appellant claiming that he expended extra N32.4 Million naira. The Court was referred to the case of; AGUSIOBO & ORS V. OKAGBUE & 1 ORS (2001) FWLR (PT. 78) PG. 1162 AT 1175.
He urged the Court to resolve this issue in favour of the Respondent.
It is the contention of the Respondent that Exhibit 17 is not address to the Respondent and it bears no date therefore a worthless paper and that no receipts covering the purchase were produce by the Appellant. The Appellant it was argued did not establish that he expended money to back up his claim.
In the instant case the lower Court admitted Exhibit 17 (i.e. the list of expenses incurred by the Appellant in the execution of the project). The said list was not objected to by the Respondent nor was the Appellant cross-examined by the Respondent on the list. There is also a correspondence contained in Exhibits 10-16 (i.e. hydro plan specification and alteration to the en-plan drawing), the evidence of the project consultant one Engr. Mustapha Kamaludeen at pages 119-121 of the printed record and exhibits 18a-18i i.e. payment receipts the Appellant issued to the Respondent evidencing payment for the work done by the Appellant. It is clear from the record of the lower Court that the Respondent did not deny that the work was done in compliance with the hydro plan drawing and specifications.
An examination of paragraph 5.2 of the Respondent’s brief of argument revealed that the items listed in exhibit 17 were not challenged, the contention of the Respondent was that there is no agreement between the parties to purchase the items. These pieces of evidences disclosed that the Appellant expended his money in the project.
Therefore this issue is also resolved in favour of the Appellant.
ISSUE THREE.
Whether Exhibit 23 signifies the last payment in respect of the Project?
Learned Appellant’s counsel submitted that Exhibit 23 (the alleged last payment receipt) was tendered in evidence through DW1 and that the said Exhibit should not be read in isolation, it should be read along with Exhibit 19 (final certificate agreement).
He contended that the Appellant testify at the trial Court that the Respondent gave him Exhibit 19 to sign but that he refused. However Exhibit 23 was said to have been paid on the same date to somebody unknown to the Appellant and that the Appellant’s receipt was issued.
He argued therefore, that Exhibit 23 should not be regarded as final payment of the Appellant, because of the following reasons;
1. Exhibit 19 which suggested that if any problem occurred both sides shall sit down and finalise,
2. Four (4) days later after writing Exhibit 19, on 6th February, 2001 the Appellant wrote Exhibit 20 to the Respondent explaining why N2, 526,860.02K will not be the final balance due to the Appellant.
3. Exhibit 21, dated 13th November, 2001 is a letter from the Appellant’s solicitor to the Respondent demanding the payment of N28,428,766.00k within two weeks or Appellant will institute an action against the Respondent.
4. In Exhibit 22 the respondent requested the Appellant to accept additional N5million naira.
He insisted that Exhibit 23 should not be regarded as the final payment of the Appellant remuneration.
He urged the Court to resolve this issue in favour of the Appellant.
In his response the learned Respondent’s counsel submitted that Exhibit 23 cannot be read along with Exhibit 19. He maintained that Exhibit 19 was written and tendered by the Appellant, the said document did not emanated from the Respondent, same not being signed by the Respondent’s Project Manager Mr. E. Shangfa.
He submitted that the document not signed by parties does not have any efficacy in law and therefore cannot be read together with Exhibit 23. He referred the Court to the case of; OMEGA BANK PLC VS OBC LTD (SUPRA) AT 794.
Learned counsel submitted that Exhibit 23 represent the last payment for the contract, it was issued by the Appellant’s manager when he received the last payment. He maintained that the said Exhibit was tendered by DW1 on behalf of the Respondent and the Appellant did not cross examine DW1 on it. The trial Court was therefore right to have accepted exhibit 23 as the last payment in respect of the contract done at Sabke Dam.
He contended that the Respondent made it clear at the trial Court that Exhibit 22 did not emanate from the Respondent; the Project Manager was Mr. E. Shangfa and not Mr. Lan Shuchen (the Deputy Managing Director) who allegedly signed Exhibit 22.
He urged the Court to hold that the trial Court was right when it dismissed the Appellant’s suit placing reliance on Exhibit 23 as the last payment in respect of the contract done at Sabke Dam.
He urged the Court to resolve this issue in favour of the Respondent.
The contention of the Respondent is that Exhibit 19 (The final certificate agreement between the parties) was not signed by the Respondent’s Project Manager but was purportedly signed by its Deputy Managing Director, hence, it will not be binding on the Respondent also Exhibit 22 did not emanate from the Respondent’s Project Manager.
It is pertinent to reproduce here the said Exhibit 22 for ease of reference;
EXHIBIT 22.
Mustapha Isa Daura 4/1/2002
Nwala Quarters,
Katsina.
Dear Sir,
We have received a letter from your solicitor in which he request us to pay you N28,428,786.01k or alternatively, they will sue us to recover the said amount.
That is why we want to contact you to consider our long term of understanding with you to accept the sum of N5,000, 000.00 five million naira as final amount we can pay you. If you accept this offer you contact us at our head office in Kaduna.
Thank you,
Yours faithfully,
SIGNED
Mr. Lan Shuchen
Ag. Project Manager”
The above letter was tendered in evidence at the trial Court by the Appellant and admitted in evidence without objection from the Respondent.
Exhibit 22 above was made after Exhibit 23 the alleged last payment receipt. The content of Exhibit 22 above clearly shows the intention of the Respondent to pay additional N5 Million Naira, as final amount of the contract to the Appellant.
DW1 in his evidence also testify that the Appellant was paid the total sum of N22,026, 860.02K (Twenty Two Million, Twenty Six Thousand, Eight Hundred and Sixty Naira and Two kobo) by the Respondent. While exhibit 5 (a letter written by the Appellant to the bank) admitted in evidence clearly shows that the provisional sum for the work is N24, 000,000.00k (Twenty Four Million naira). It is pertinent to also reproduce the said exhibit 5 for ease of reference;
“The Manager,
AFRI BANK PLC.
This is to certify that M. ISAH (KOFAR KAURA NWALA, KATSINA) have signed an agreement with CGC NIGERIA LTD about the construction work of 11 Senior staff living quarters on Sabke Dam project. The provisional sum for the above mentioned work is N24,000,000.00k Naira.
Yours faithfully,
SIGNED
E. Shangfa
Project Manager” (Underline mine)
It is clear from the evidence reproduced above that Exhibit 23 cannot be said to be the last payment in respect of the work done.
Also Exhibit 19 (final certificate agreement between the parties) was signed by the Acting Project Manager of the Respondent; it was tendered in evidence at the lower Court and admitted without objection. It clearly stated therein that “if any problem occurred both side shall sit down and finalise”. Exhibit 19 was signed by the Respondent’s Acting Project Manager, who is an agent of the Respondent (company). The position of the law is that all contract made by an agent of a disclosed principal is in law deemed to be the contract of the principal. The Respondent is therefore estopped from denying both Exhibits 19 and 22 signed by its agent.
There is ample of evidence from the record indicating that the Appellant incurred additional expenses in the project. Therefore, Exhibit 23 cannot be the last payment of the project.
This issue is also resolved in favour of the Appellant.
I find merit in this appeal and it is hereby allowed. The judgment of the lower Court in suit No: KTH/54/2007 delivered on 27/11/2012 is hereby set aside and in its place I ordered as follows;
1. The Respondent shall pay the sum of N7,622,955.98k (Seven Million, Six hundred and Twenty Two Thousand, Nine Hundred and Fifty Five Naira, Ninety Eight Kobo) to the Appellant being reasonable sum on quantum meruit basis, having earlier paid him N22,026.860.02K.
2. The Respondent shall pay the sum of N500, 000.00k (Five Hundred Thousand Naira) as general damages to the Appellant.
3. The claims for Vat and Expected profit having not been pleaded and proved by the Appellant are refused.
There is no orders as to cost.
UWANI M. ABBA AJI, J.C.A.: I have had a preview of the lead judgment of my learned brother, Abdu Aboki, JCA, just delivered.
My learned brother exhaustively considered the issues presented to us for determination and I agree with his reasoning and conclusion that this appeal has merit and it is also allowed by me.
Consequently, the judgment of the lower court delivered on the 27th November, 2012 is hereby set aside.
I endorsed the consequential orders made in the lead judgment including order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I agree.
Appearances
Y. M. NA-ALLAH ESQ.For Appellant
AND
IKECHUKWU ANYALEWEACHI Esq. holding brief of KACHI OCHU ESQ.For Respondent
