ALHAJI SHEHU ASHAKA V. SAMSON CHIDI NWACHUKWU
(2013)LCN/5951(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/J/290/2004
RATIO
“The law is trite that in civil cases the initial burden of proof is on the party who asserts or claims. The burden of proof may however shift to the other party in course of the trial depending on the nature or status of the evidence. Sections 131, 132 and 133, of the Evidence Act, 2011 provide as follows: “131(1) – Whoever desires any Court to give judgment as to any Legal right or liability dependant on the existence of facts which he asserts shall prove that these facts exist. (2) When a person is bound to prove the existence of a fact it is said that the burden of proof lies on that person.” “132.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side” “133(1) In civil cedes, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. (2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with”. The provisions of Sections 136, 137 and 138 of the Evidence Act, 2004, which are impari materia with Sections 131, 132 and 33 of Evidence Act, 2011, have been examined and applied by the Supreme Court and this court in a number of cases. For instance in M.W.T. (Nig.) Ltd. v. PTF (2007) 15 NWLR pt. 1058 p. 641 @ 492 and UTC (Nig.) Plc. V. Philips (2012) 6 NWLR pt. 1295 p.136 @ 168 – 189, this court has had examined the said provisions and held that the burden of proof in a civil matter is on he who asserts. The person who makes the assertions in the pleadings is bound to produce evidence to substantiate them. However, it is not static but shifts between the parties. If a party adduced evidence which ought to satisfy the Court that the fact sought to be proved is established, then the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with. The burden of proof, in civil cases, preponderates and the Court is to give judgment on the preponderance of evidence, after placing the totality of the evidence on an imaginary scale of justice, weigh them in order to see which evidence is heavier before arriving at a decision, See also Elemo V. Omolade (1968) NWLR pt. 359; Tangale Traditional Council V. Fawus (2001) 17 NWLR Pt.742 p.213; Irauwa V. Ime (2000) 12 NWLR Pt. 680 p. 156; Eseigbe V. Agholor (1993) 9 NWLR Pt. 316 p. 128 and Ironbar V. C.R.B.R.D.A. (2004) 2 NWLR Pt. 857 p. 411.”PER BDLIYA J.C.A.
“It is the settled position of the courts, especially, appellate courts that, a piece of evidence is said to contradict another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy in the both. In the case of: Dagayya v. the State (2006) 7 NWLR (Pt. 980) p. 637 at p. 677, paras. F – H, p. 678, para. A, the learned Mohammed, JSC stated thus: “… in the law of evidence, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies in, say, details between them. In other words, contractions between two pieces of evidence go rather to the essentiality of something being or not being at the same time. Whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details. On really what constitutes contradiction in evidence, Nnaemeka Agu, JSC in Ayo Gabriel V. The State (1989) 5 NWLR (Pt. 122) 457 had this to say at Page 468:- “A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. It is useful to bear in mind the fact that the word contradict, comes from two Latin words, contra (opposite) and dicere (to say). Two pieces of evidence contradict one another when they are by themselves inconsistent, on the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains a little more than, what the other piece of evidence says or contains some minor differences in details. Furthermore, also in the case of Dagayya v. The State supra at p. 664, paras. D – G Tobi, JSC, on the type of contradictions in the evidence of witnesses that will warrant a reversal of the Judgment of a lower court, had the following to say: Where the grounds of appeal relied upon was that of contradictions in the evidence of witnesses … It is not enough to warrant a reversal of Judgment merely for the appellant to show the existence of those contradictions, without showing further that the trial Judge did not advert to and consider the effect of those contradictions. For an appellant to succeed on the grounds of contradictions in the evidence of witnesses … the contradictions must be shown to amount to substantial disparagement of the witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses. See Enahoro v. the Queen (1955) 1 All NLR 125. See also The Queen v. Ekanem (1960) 5 FSC 14; (1960) SCNLR 42; Omisade v. The Queen (1954) 1 All NLR 233.” PER OMOLEYE J.C.A.
“In Yadis (Nig.) Ltd. V. G.N.I.C. (2007) 111 NWLR Pt. 1055 p. 584 @ 607, it was held that it is the primary duty of the trial Court or trial Judge to evaluate evidence, make findings and apportion persuasive value thereto. It is not for an appellate court to do so, except where the trial court failed to do so or it was improperly carried out. In Anyegwu V. Onuche (2009) 3 NWLR Pt. 1129 p. 659 @ 615, it was held that the findings of fact, evaluation of evidence, ascription of probative value thereto, are the exclusive preserve of the trial Court or trial Judge as the case may be. Where a trial Court properly evaluated the evidence before it and ascribed probative value thereto, an appellate court has no business to interfere with such evaluation and ascription of persuasive value thereto. It cannot substitute its own findings, evaluation or ascription of probative value merely because it could not agree with the way or manner it was carried our by the trial court. See NEPA V. Adesanju (2002) 17 NWLR Pt. 797 p. 28 AND Ndidi V. State (2007) 19 NWLR PT. 1052 P.63).”PER BDLIYA J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
ALHAJI SHEHU ASHAKA Appellant(s)
AND
SAMSON CHIDI NWACHUKWU Respondent(s)
IBRAHIM SHATA BDLIYA J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Plateau State High Court delivered by Hon. Justice Y. G. Dakwak on 22th October, 2004, in suit No. PLD/J433/2003. The appellant, who was the defendant in the lower court, was sued by the respondent (who was the Plaintiff,) under the Undefended List vide a writ of Summons claiming as follows:
“The Plaintiff claims from the defendant the sum of (Two Million Naira) N2,000,000.00 being the balance due to the Plaintiff from the defendant on a road contract which the Plaintiff executed at NDLEA office at Lamingo for the defendant and which sum the defendant, despite repeated demands, has failed to pay.
And the Plaintiff claims interest at the rate of 25% per cent from 20th July, 2001, until judgment and thereafter at 10% per annum until the entire sum is paid”.
The application of the Respondent to place the suit on the Undefended List was supported by an affidavit. After hearing the application Ex-parte, the suit was placed on the Undefended List. The appellant was served with the writ of summons together with the affidavit in support thereof. He filed a notice of intention to defend with a supporting affidavit. The trial Court, after considering the notice of intention to defend together with the supporting affidavit, transferred the suit from the Undefended List to the general cause list for hearing. The case proceeded to trial wherein the Respondent testified and called three (3) other witnesses. The appellant testified. He did not call other witnesses. Written addresses were filed and adopted by learned counsel to the parties, after the taking of evidence. In a reserved judgment, the trial Court entered judgment in favour of the respondent. Dissatisfied with the judgment, the Appellant has now appealed to this Court. A Notice of Appeal dated 25th of October, 2004, was filed on 25th of the same month, 2004, with three (3) Grounds of Appeal. By an application filed on 28th December 2005, the original Notice of Appeal was amended and deemed filed on the same day containing thirteen (13) grounds of appeal. Without their particulars the grounds of appeal are:-
“GROUND 1
The learned trial judge erred in law and misdirected himself on points of law when he held to the effect that, considering all the evidence before him, that the defendant actually subcontracted for the plaintiff some jobs at the NDLEA sit in Jos for the sum of (Two Million, Nine Hundred Thousand Naira) N2.9 million and that the defendant has only paid to the Plaintiff the sum of (Nine Hundred Thousand Naira) N900,000.00 only leaving a balance of N2 million (Two Million Naira) unpaid.
GROUND 2
The learned trial judge erred in law by failing to examine the evidence placed before him to determine whether in law there is valid contract between the parties.
GROUND 3
The learned trial judge erred in law by relying on the evidence of P.W. 4 to award a 22% interest against the defendant when he (defendant) was not a party to Exhibit B1 executed between the Plaintiff and the P.W.4 Company.
GROUND 4
The learned judge of the lower court erred in law when he held as follows:-
“From the totality of the evidence on the final issue, I am satisfied that the defendant actually sub-contracted to the Plaintiff some jobs at the NDLEA sit at Jos at the sum of (Two Two Million, Nine Hundred Thousand Naira) 2.9 million and that the defendant has only paid the Plaintiff the sum of (Nine Hundred Thousand Naira) N900, 000.00, leaving a balance of N2million unpaid”.
When the totality of the evidence before him did not support such conclusion.
GROUND 5
The learned judge of the court below erred in law when he failed in his duty to evaluate the evidence and making specific findings therein before arriving at his conclusion that the appellant “actually subcontracted to the Plaintiff (respondent) some jobs at NDLEA site in Jos for the sum of (Two Million, Nine Hundred Thousand Naira) N2.9 million and the defendant has only paid the plaintiff the sum of (Nine Hundred Thousand Naira) N900,000,00 leaving a balance of (Two Million Naira) N2 million unpaid.
GROUND 6
The learned trial judge erred in law when he construed and relied on Exhibit “A” as constituting a contract between the appellant and the Respondent.
GROUND 7
The judgment of the lower court does not meet the requirement of a valid judgment in that it is perfunctory, arbitrary and bereft of reasons in support.
GROUND 8
The learned trial judge misdirected himself when he stated thus:-
“The P.W.2 is a civil servant, he has no reason to tell lies against the defendant, the P.W.3 is related to the defendant from the evidence on both sides, he too will have no reason to tell lies against the defendant,
GROUND 9
The learned judge of the lower court misdirected himself when he stated thus:
“The defendant alleged that the P.W.3 and the Plaintiff are business partners but he did not tell the court what business they were partnering. The defendant also claimed he has his own engineer at the site by name Gyang but did not call him to testify neither did the defendant call the NDLEA engineers whom he alleged supervised the project to testify”.
GROUND 10
The learned trial judge erred in law when he held thus:
“From the unchallenged evidence of the P.W.4 and the exhibit B which there is no evidence that the plaintiff and the defendant agreed that interest was to be charged according to usages, there is no doubting the fact that the money he used to do the job for the defendant, it is therefore clear that the court of justice and fairness has in the circumstances to award interest”
Whereas the loan taken by the defendant was never shown to be in the contemplation of the parties.
GROUND 11
The lower Court misdirected itself when in the judgment, it held thus:-
“The plaintiff therefore is entitled to interest on the said sum. I in the conclusion therefore enter judgment for the plaintiff in the sum of (Two Million Naira) N2 million with interest of 22% P. A. from July, 2001 to today which is the date of judgment, and thereafter at the rate of 10% until the entire judgment sum is liquidated”.
When the amount of the loan which attracted interest was (One Million Naira) N1m and not (Two Million Naira) N2 million”.
GROUND 12
The learned trial judge misdirected himself when he awarded interest of 22% on the (Two Million Naira) N2million claimed without deducting the (Nine Hundred Thousand Naira) N900,000.00 already paid.
GROUND 13
The learned trial judge erred in law when he granted interest on the judgment sum of (Two Million Naira) N2 million on the basis of a loan transaction of (One Million Naira) N 1 million which was not from a licensed Bank or a registered money tender and therefore illegal.”
Briefs of Argument were filed and adopted by learned counsel at the hearing of the appeal on 4th December, 2012. The appellant, in his brief of argument settled by G. S. Pwul Esq. of learned counsel did formulate three Issues for determination of the appeal, which are:
(i) Was the lower court right in holding that there was a contract between the parties? (Grounds 2, 4 and 5).
(ii) Was the lower court right in awarding interest of 22% on the sum of (Two Million Naira) N2million or at all? (Grounds 3, 10, 11, 12 and 13)’
(iii) Was the lower Court was right when it accepted and relied on the evidence of P.W.1 for the reason that he was a civil servant and that P.W. 3 for the reason that he was related to the appellant? (Ground 8).
For the Respondent, E. O. Okoro Esq., of learned Counsel, in his Brief of argument dated 28th June 2009 and filed on same date, formulated three (3) Issues which are not dissimilar with those formulated in the Appellant’s Brief of Argument; as follows:
(i) Whether the learned trial judge was right when he found and held that where was a contract between the parties.
(ii) Whether the award of interest of 22% against the appellant is justified.
(iii) Whether the learned trial judge properly evaluated the evidence before him in arriving at his decision.
As earlier pointed out in this judgment, the Issues formulated for determination in this appeal by learned counsel to the parties are substantially the same. In the resolution of these Issues, the court can either adopt, restructure or reframe the said issues where necessary or desirable. I am fortified in this view by the authority of Amana Suit Hotels Ltd. V. Peoples Democratic Party (2007) 6 NWLR Pt. 1031 P. 453 @ 470, wherein this Court held that it is permissible for an appellate court to either adopt the issue(s) formulated by the parties for determination or it can restructure reframe or formulate such new issues which are consistent with the grounds of appeal, which in its opinion, would determine the question(s) in the appeal. See also Labiyi is Anreitiator (1992) 8 NWLR Pt. 258 P. 139; Aduku V. Adejoh (1994)5 NWLR Pt. 349 P. 582; Dung V. Gyang (1994) 8 NWLR Pt. 362 p. 315; Ikegwuoha V. Ohawuchi; (1996) 3 NWLR Pt. 435 @ 146 and Yadis (Nig) Ltd. V. G. N. Z. C. LTD. (2007) 14 NWLR Pt. 1055 P. 584 @ 605.
Issues 1, 2 and 3 in the Appellant’s Brief of Argument and Issues 1, 2 and 3 in the Respondent’s Brief of argument are substantially impari materia. For an(sic) cases, and, or a neater way of resolving them, it would not be out of place to compress or restructure them as follows:
ISSUE 1
Whether the learned trial judge was right when he found and held that there was a contract between the parties (Issue 1 of appellant and Issue 1 of respondent).
ISSUE 2
Whether the learned trial judge properly evaluated the evidence before him, particularly that of P.W 1 and P.W.3 before arriving at his decision (Issue 3 of appellant and Issue 3 of Respondent).
ISSUE 3
Whether the award of interest of 22% against the appellant on the Two Million Naira (N2 million) was justified (Issue 2 of appellant and Issue 2 of respondent).
RESOLUTION OF ISSUES
ISSUE 1
Whether the learned trial judge was right when he found and held that there was a contract between the parties (i.e. the Appellant and the Respondent).
Pwul Esq. of learned counsel to the appellant submitted that this Issue deals with the decision arrived at by the learned trial judge on page 57 of the record of appeal to the effect that there is a valid contract between the appellant and the respondent for the NDLEA project involving the sum of two Million Nine Hundred Thousand Naira (N2.9 Million) and of which the sum of nine Hundred Thousand Naira (N9000,000.00) was paid, leaving a balance of two Million Naira (N2 Million).
It was learned counsel’s submission that the decision arrived at was an error in that there was no evidence to support same. Learned counsel further contended that Exh. ‘A’ on which the decision of the lower court was based was a quotation by the respondent addressed to the appellant.
It was his further submission that it is a unilateral document which has no connection with the appellant, having denied knowledge of same, Pwul Esq. of learned counsel, submitted that the said Exh. “A” is an offer which was never accepted by the appellant. It was further submitted that there was no evidence before the trial court linking the appellant to Exh. ‘A’, therefore, there was no acceptance of the offer made by the Respondent. The cases of Mercantile Bank V. Abusumwom (1986) 2 NWLR Pt. 22 p. 270 AND Jeric Vis, Ltd V. UBN (2000) 15 NWLR Pt. 691 P.447 were cited to buttress the submissions supra.
On the additional works involving the sum of N900,000.00, learned counsel did submit that Exh. ‘A’ cannot be the basis of it. There ought to have been a fresh independent contractual agreement for it. Therefore, there is no evidence before the trial court to support such contractual agreement. The cases of Green Finger Agre-Ind. Ltd. V. Yusuf 2003 12 NWLR Pt. 831 at 488 and Jeric (Nig) Ltd. V. UBN Plc. (supra) were relied upon. Regarding Exh. ‘B’ it was submitted that same does not form part of Exh, ‘A’, It cannot therefore be a document constituting a valid contract between the appellant and the Respondent. The trial court was therefore in error in relying on same in arriving at a decision that there was a valid contract between the parties.
In a formal contract, it was submitted, an acceptance of an offer is necessary. Therefore, since Exh. ‘A’ was not accepted by the appellant, there cannot be a valid contract between the parties. Learned Counsel did urge the court to hold that there was no valid contract having regard to the evidence before the trial that court. Therefore the trial court was in grave error when it held that a valid contract for the NDLEA Road project was entered into by the parties. Regarding the oral evidence of P.Ws 2, and 3, learned Counsel submitted that such evidence cannot be relied upon to construe Ext. ‘A’, being a document. It was his further submission that oral evidence is not admissible to prove the existence of a written agreement or contract. The case of Jeric (Nig) Ltd. V. UBN Plc. (2000)15 NWLR Pt. 641 P.447 was cited to buttress the submission supra.
Concluding, learned counsel urged the court to hold that Ext. ‘A’ did not create a contractual relationship between the appellant and the Respondent notwithstanding the oral evidence of P.W 1, 2 and 3. The court was urged to resolve this issue in favour of the appellant.
For the Respondent, Okoro Esq., of learned Counsel, submitted that in civil cases, he who asserts has the burden of proof as provided by sections 137 of the Evidence Act. (now section 131). The cases of Ewo & ors. V. Ani & ors (2004) 3 NWLR Pt. 861 P. 611 and Ezemba V. Ibeneme (2004) 14 NWLR Pt. 894 P. 617 and N.B.B. MFG CO, Ltd. V. ACB Ltd. (2004) 2 NWLR Pt.858 P. 521 were cited to buttress the Submission supra.
Learned Counsel went on to submit that the evidence of P.Ws 1, and 2 are very clear on the contract between the parties. The evidence of these witnesses, it was submitted, have not been contradicted or discredited by the appellant. Where the evidence by a party in a civil case is not contradicted, it was submitted, the court can rely on same in resolving the dispute before it. This Court has been so urged in this case to do the same. The case of Trade Bank Plc. V. K.B. Chami (2003) 13 NWLR Pt. 836 P. 158 at 220 was cited in aid. Submitting further, Okoro Esq. adumbrated that where a party in a civil Case adduces evidence on a central issue and the other party fails to dislodge or discred1 same, judgment would be in favour of the former. The case of Awoyoola V. Aro & 2006, 4 NWLR Pt. 971 P. 481 at 496 was relied upon. This Court has been urged to do the same and resolve this issue in favour of the Respondent having regard to the cogent evidence adduced by the Respondent before the trial court. Learned Counsel referred to the evidence of P.W 3 and submitted that taken together with the evidence of P.W.1, and 2, the existence of a subcontract for the NDLEA project, Jos, has been established.
On the defence of the appellant contained in the affidavit filed in support of the Notice of Intention to defend the action, that one Engineer Mr. Gyang supervised or did execute the work, it was submitted that, having not called the said Mr. Gyang as a witness, this evidence is not supportable, since he did not give evidence at the trial. Okoro Esq. of learned Counsel further submitted that the evidence of the appellant that Mr. Gyang supervised the project in one breath and that he carried out the execution of the project in another breath is contradictory. Such contradictory evidence is not supported by the pleadings, that is, the affidavit of the appellant filed in support of his notice of intention to defend the action. Where evidence is not supported by the pleadings, it was submitted, such evidence goes to no issue, The cases of Onwudinjo V. Dinobi, 2006, 1 NWLR Pt. 961 P. 318 at 338 and Agba V. State (2006)6 NWLR Pt. 579 P 545 were cited in aid.
On the failure of the appellant to call Mr. Gyang as a witness in his defence, learned Counsel did submit that though failure to call more than one witness is not fatal to a party’s case, where a vital witness or witnesses are not called, the case of the party who ought to call that witnesses, would fail. The case of Agbi V. Ogbeh 2006 11 NWLR Pt. 99 P. 65 @ 125 was cited in support. It was further submitted that failure to call Mr. Gyang by the appellant to prove that the project was not executed by the Respondent is fatal to the defence. On the contention of the appellant’s counsel that there was no written acceptance of Exhibit ‘A’ by the appellant, Okoro Esq. submitted that in the circumstances of this case, written acceptance was not necessary. It was his further submission that in view of the evidence before the trial Court, the parties, were at “consensus ad idem”. That there was no need for a written acceptance of Exhibit ‘A’ by the appellant. Learned Counsel then urged the Court to resolve this issue against the appellant.
On page 57 of the record of appeal the learned trial judge, after considering the evidence adduced by the parties, found as follows:
“From the totality of the evidence on the first issue, I am satisfied that the defendant actually sub-contracted for the plaintiff some jobs at the NDLEA side in Jos for the sum of N2.9 million and that the defendant has only paid the plaintiff the sum of N90,000.00 leaving a balance of N2 million unpaid”
Was the trial court justified when it arrived at the decision supra. At this juncture, I think it is opposite to resort to the pleadings of the parties before the trial Court. It is important to note that the parties, at the trial agreed to and adopted the affidavits filed by them as their pleadings. For easy comprehension and appreciation of the issues in dispute at the trial, which are also the issues in this appeal, a reproduction of the affidavit/pleadings is desirable. Firstly the affidavit/pleadings of the Respondent, who was the plaintiff before the trial court.
AFFIDAVIT IN SUPPORT OF CLAIMS
“1. That I am the Plaintiff hereto and I am familiar with the facts of the case.
2. That on the 20th day of July, 2001 quoted for the construction of the road net work at NDLEA which major contract had been awarded to the Defendant.
3. That Defendant considered Quotation and cut my bid from N3,848,000.00 to N2,500,000.00.
4. That I accepted the new price and his son and Manager one Sani then altered my Quotation to N2,500,000.00 after cancelling my original figure of N3,848,000.00.
5. That I then executed the said job and did additional job which was valued at N400,000,00 bringing my total to N2,900,000.00 which was totaled by Defendant’s manager Sani himself and signed by him. A copy of my Quotation as signed by Defendant through his Manager is exhibited hereto as exhibit ‘A’
6. That while I was working Defendant made three payments to me viz
i. N400,000.00 through Sani
ii N400,000.00 through Sanusi another of his staff
iii N100,000.00 through Sani
N900,000.00 Total
Leaving unpaid the sum of N2,000,000.00
7. That each time I was paid sani always recorded same in my Quotation. A copy of his recordings are exhibited hereto as exhibit ‘B’
8. That despite repeated demands Defendant has refused to pay to me the balance sum of N2,000,000.00 even though job has since been completed and commissioned.
9. That I verily believe that the Defendant has no defence to this action.
10, That I borrowed N1,000,000.00 from a Financial Institution to execute the job and have been paying interest at 22% per annum at compound rate since 24th July, 2001 till date. A copy of the letter releasing the sum of N1,000,000.00 to me from Sawlid Investments Ltd is exhibited hereto as exhibit ‘C’
11. That I make this oath in good faith.”
The appellant, then defendant, filed a Notice of Intention to defend the claims of the Respondent with a supporting affidavit. Paragraph 1 – 8 thereof are the averments contained therein. They read:
“1. That I am the litigation secretary in the firm of Zaidu Abdullahi & Co. Esq.
2. That by virtue of my aforementioned position I am conversant with the facts of this case.
3. That I have the authority of my employers and the Defendant to depose to the facts in this affidavit.
4. That I have been informed by the defendant Alhaji Shehu Ashaka while briefing Zaidu Abdullahi Esq. of counsel and I verily belief same to be true as follows:
(a) That at no time did the plaintiff make any question to the Defendant for a construction or road network at NDELA.
(b) That if there was any such quotation, the defendant would have replied the plaintiff in writing by stating the amount agreed upon.
(c) That the Defendant didn’t cut any bid from N3,848,000.00 to N2,500,000.00.
(d) That the Defendant’s son and one Sani didn’t alter any quotation to N2,500,000.00.
(e) That the Defendant didn’t sign any quotation either personally or through any Person.
(f) That exhibit “A” is fictitious and same was never delivered or shown to the Defendant.
(g) That payment made were for supply of sundry items, viz coal tar, gravels and same were not made through any quotation.
(h) That Sani had never recorded my payment in Exhibit “A”.
5. That I have been further informed by the Defendant while briefing Zaidu Abdullahi and I verily believe same to be true as follows:
(a) That while Defendant was given contract at NDELA the plaintiff approached the defendant to assist him.
(b) That the Defendant assisted the plaintiff by making him to supply some items for roads maintenance at NDLEA.
(c) That the items were gravels, coal tar and hiring of grader.
(d) That at each point after the supplies, the plaintiff paid for the supplies which amount was N900,000.00.
(e) That all the transaction of supply were verbal and payments were made upon completion of supply.
(f) That the Defendant had completed the payment for supplies made after the plaintiff completed supplies of items in “C”.
(g) That the Defendant is not indebted to the plaintiff to any amount.
(h) That there is no balance of N2,000,000.00 or any amount to be paid by Defendant.
(i) That exhibit “A” & “B” are fictitious as same have never being brought to the Defendant’s attention.
(j) That the plaintiff has never known the contract document existing between the Defendant and NDLEA.
(k) That the plaintiff does not know the engineering directions required in the contract agreement.
(l) That road construction work was carried out by the Defendant through his engineer one Mr. Gyang.
6. That at no time did he execute or ratify the purported Exhibits “A” and “B” as same are strange to him.
7. That it is in the interest of justice that this suit be transferred to the General Cause List for hearing and determination.
8. That I depose to this affidavit in good faith believing same to be true according to the oath Act 1990.”
The law is trite that in civil cases the initial burden of proof is on the party who asserts or claims. The burden of proof may however shift to the other party in course of the trial depending on the nature or status of the evidence. Sections 131, 132 and 133, of the Evidence Act, 2011 provide as follows:
“131(1) – Whoever desires any Court to give judgment as to any Legal right or liability dependant on the existence of facts which he asserts shall prove that these facts exist.
(2) When a person is bound to prove the existence of a fact it is said that the burden of proof lies on that person.”
“132.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side”
“133(1) In civil cedes, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with”.
The provisions of Sections 136, 137 and 138 of the Evidence Act, 2004, which are impari materia with Sections 131, 132 and 33 of Evidence Act, 2011, have been examined and applied by the Supreme Court and this court in a number of cases. For instance in M.W.T. (Nig.) Ltd. v. PTF (2007) 15 NWLR pt. 1058 p. 641 @ 492 and UTC (Nig.) Plc. V. Philips (2012) 6 NWLR pt. 1295 p.136 @ 168 – 189, this court has had examined the said provisions and held that the burden of proof in a civil matter is on he who asserts. The person who makes the assertions in the pleadings is bound to produce evidence to substantiate them.
However, it is not static but shifts between the parties. If a party adduced evidence which ought to satisfy the Court that the fact sought to be proved is established, then the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with. The burden of proof, in civil cases, preponderates and the Court is to give judgment on the preponderance of evidence, after placing the totality of the evidence on an imaginary scale of justice, weigh them in order to see which evidence is heavier before arriving at a decision, See also Elemo V. Omolade (1968) NWLR pt. 359; Tangale Traditional Council V. Fawus (2001) 17 NWLR Pt.742 p.213; Irauwa V. Ime (2000) 12 NWLR Pt. 680 p. 156; Eseigbe V. Agholor (1993) 9 NWLR Pt. 316 p. 128 and Ironbar V. C.R.B.R.D.A. (2004) 2 NWLR Pt. 857 p. 411.
Did the Respondent, who was the Plaintiff, before the trial Court prove his claims as required in civil proceedings? Put it in another way, was the trial Court justified in arriving at a decision that there was a valid contract between the Appellant and the Respondent for the execution of the NDLEA project, in Jos? Pwul Esq. of learned counsel to the Appellant was of the view that the Respondent did not adduce credible, and reliable evidence proving the existence of such a contract. On the other hand, Okoro Esq. for the Respondent was of the view that the evidence of the Respondent and his witnesses have established the existence of such a contract.
Before delving into the evidence adduced by the parties at the trial Court, I think it is apt at this juncture, to remind myself of the general principles of law on formation of contract. This, in my view, would be of tremendous assistance to the Court in resolving the issue(s) raised in this appeal, that is, whether there was a valid contract entered into as claimed or as alleged by the Respondent for the execution of the NDLEA project in Jos.
What is a contract? In the case of Best (Nig.) Ltd. V. B.H. (Nig.) Ltd. (2011) 5 NWLR Pt. 1239 p. 95 @ 127, the Supreme Court defined contract to mean a legally binding agreement between two or more persons by which rights are acquired by the party in return for acts or forbearances on the part of the other. It is a bilateral affair which requires the ‘ad idem’ of the parties. See Odutula V. Agrersack (Nig.) Ltd. (2006) 18 NWLR Pt. 1012 p. 470; Orient Bank (Nig.) Plc. V. Bilante Int’l Ltd. (1997) 8 NWLR Pt. 515 p. 37 and S.G.B. (Nig.) Ltd. V. Safa Steel and Chemical Manufacturing Ltd. (1998) 5 NWLR Pt. 548 p. 168. For a contract to be validly made or entered into there must be:
(i) Offer
(ii) Acceptance
(iii) Consideration
(iv) Intention to create legal relationship, and
(v) Capacity to enter into contract.
All the five (5) elements or ingredients must be present before there can be a valid contract in law.
A contract cannot be legally entered into, if any of these elements or ingredients is missing or absent. See Amana Suits Hotels Ltd. V. P.D.P. (2007) 6 NWLR Pt. 1031 p. 453 @ 476; Okubule V. Oyagbola (1950) 4 NWLR pt. 147 p.723 and P.T.F. V. Uwama (2001) 5 NWLR Pt. 705 p. 112.
The formation of a contract is therefore governed by the making of an offer by the offeror and the acceptance of it by the offeree. The offer and the acceptance constitute an agreement if the two parties are at consensus ad idem, that is the intention of both parties is same. Therefore, for a contract to be valid in law, there must be an offer and an acceptance. An acceptance of an offer may be in writing, orally or by conduct or by other means agreed to or acceptable to the parties. See Johnson Wax (Nig.) Ltd. vs. Sanni (2010) 3 NWLR pt. 2oro p. 235 @ 24s. rn Neka B.B.B. Manu Factains Co. Ltd. V. ACB Ltd. (2004) 2 NWLR pt 858 p. 54 @ 554, the Supreme Court held that:
“It is trite law that for a contract to exist there must be an offer and an unqualified acceptance of the offer and a legal consideration. Indeed, there must be mutuality of purpose and intention. The two contracting parties, must agree. In other words, there must be an offer and an acceptance.”
In Johnson Wax (Nig.) Ltd. V. Sanni (2010) 3 NWLR pt. 1181 p. 235 @ 245, this Court, per Dongban-Mensem, JCA, had this to say:
“It is trite law that the formation of contract is not governed by rigid but flexible rules, namely, that there must be a definite offer by the offeree and been communicated to the other party called the offeree who accepts the offer unless the offeror, the first party, dispenses with, such communication.”
A contract or an agreement to do an act need not be in writing. It could be either, in writing, oral or both depending on the circumstances of each case. But where the contract or agreement is written in a document the court cannot rook beyond that written document to determine what its express terms are. Where it is an oral contract or agreement the ascertainment of its terms is purely a question of facts. See A.G. River State V. A.G. Akwa Ibom State (2011) 8 NWLR pt. 1248 p. 31 @ 109. In U.T.C. (Nig.) Plc. V. Philips (2012) 6 NWLR pt. 1255 p. 136 @ 163, this Court per peter Odili, JCA held that, an agreement or contract can be made or entered into in writing or orally or by conduct of the parties from which the terms of the contract or agreement can be inferred. See also Ironbor V. Cross River Basin Rural Dev. Authority (2003) FWLR pt 165 p.377.A resume of the submissions of the Appellant’s counsel in his Brief of argument that there was no valid contract entered into between the parties for the NDLEA Project, Jos, and that for the Respondent to the effect that there was such a contract is desirable at this juncture. The Appellant’s arguments are that:
(a) That Exh. ‘A’ the basis of the alleged contract is a unilateral document from the Respondent which was not accepted by the Appellant.
(b) That the evidence of the Respondent and his three (3) witnesses are contradictory that a reasonable court would not rely on to take a decision.
(c) That there is no cogent and credible evidence that the Appellant accepted Exh. “A”.
(d) That Exh. ‘B’ is not part of Exh. ‘A’ being a separate agreement, there ought to have been a new agreement for it.
(e) That the trial Court erred in law when it admitted oral evidence of PW1, PW 2, and PW 3 in coming to a decision that Exh. ‘A’ constitutes a valid contract between the parties.
(f) That the payment of (Nine Hundred Thousand Naira) N900,000.00 was for supply of materials to him by the Respondent.
(g) That the NDLEA Project was supervised/executed by Mr. Gyang not by the Respondent.
For the Respondent the arguments are:
(a) That the evidence of the respondent, PW 2 and PW3 have not been challenged nor contradicted by the Appellant. That there is credible evidence proving a contract between the parties.
(b) That there is no contradiction in the evidence of the Respondent and his witnesses on the formation of the contract for the NDLEA project in Jos.
(c) That the assertion of the Appellant that the NDLEA project was supervised and or executed by Mr. Gyang on his behalf has not been proved in the absence of any evidence by Mr. Gyang himself or any other person.
(d) That the sum of Nine Hundred Thousand Naira (N900,000,00) was part payment for the execution of the contract, not for the supply of gravel, sand or any material to the Appellant.
(e) That the failure to to call Mr. Gyang to testify being a vital witness is fatal to the Appellant’s defence.
(f) That it is not necessary or essential for the contract or the agreement to be in writing in so far as there are credible evidence proving the existence of such agreement or contract between the parties.
The pleadings or the facts being relied upon by the Respondent as the basis for the existence of a contract between him and the Appellant for the NDLEA Project are those in the affidavit filed with the Writ of Summons. They are contained on pages 12 to 13 of the record of appeal. These averments have been reproduced herein-before in this judgment. The pleadings of the appellant in support of his defence to the claims of the Respondent are those contained in the affidavit filed together with the Notice of Intention to defend the suit. Same have been reproduced earlier in this judgment.
Did the Respondent adduce credible, cogent and reliable evidence proving the existence of a contract between him and the Appellant for the NDLEA Project, Jos. The Respondent testified and called three (3) other witnesses. Their testimonies are on pages 25 to 32 of the record of appeal. The first witness for the Respondent/Plaintiff was Ayuba Dalyop. He testified as PW1, the gist of his testimony is that he worked with the Jos Metropolitan Development Board as an Engineer. He knew the Appellant/Defendant and Respondent/plaintiff. That the plateau state Government gave contract to the Appellant for the rehabilitation of the roads with NDLEA School in Jos. That the Respondent executed the work as subcontractor. He supervised the project. The Respondent did the works. When cross-examination, he said he did not know if the Appellant had an engineer at the site. He denied knowing an engineer called Gyang. He said he was always at the site. He said he would be supervised if one says that the Respondent only supplied materials. He would be surprise if Mr. Gyang was at the site, as an engineer to the Appellant.
Samson Chidi Nwachukwu is the Respondent (then plaintiff). He testified that he knew the Appellant. He knew pw1 when he was executing another project. Pw1 was an engineer for that project. The Appellant invited him. The Appellant told him of the project at NDLEA. The road project was shown to him. He measured the road. He gave a bit of Three Million, Eight Hundred and Forty Thousand Naira (N3, 840,000.00). The Appellant/Defendant said it was too high. The Appellant/Defendant called Sani who he said was his Manager at the NDLEA project site. The Appellant himself and Sani agreed on Two Million Naira (N2.5Million for the NDLEA project. The bit of Three Million, Eight Hundred and Forty Thousand Naira (N3,840,000.00) was reduced in writing. There was an additional work. It was agreed at Four Hundred Thousand Naira (N400,000.00). The Appellant/Defendant took him to the commandant of the NDLEA School. The total bill was Two Million, Nine Hundred Thousand Naira (N2.9 Million). The Appellant/Defendant Manager, Sani signed the bill. The Appellant/Defendant paid (N400,000.00) at first. Later he paid a another sum of Four Hundred Thousand Naira (N400,000.00). He then gave a cheque for One Hundred Thousand Naira (N100,000.00), totaling all into Nine Hundred Thousand Naira (N900,000.00). Sanni recorded these payments on a copy of the agreement. The agreement of 01/7/2001 was admitted in evidence as Exhibit ‘A’. Sani the Manager signed the document. The document was admitted as Exhibit ‘B’. The project was executed. The Appellant/Defendant paid only (N900,000.00). The Appellant/Defendant refused to pay the balance of (N2,000,000.00).
When cross examined he said the appellant took him to the site. He agreed to carry out the works per the agreement. He agreed that appellant did not accept his offer to do the work in writing. That there was no formal letter accepting his quotation or bill. The appellant’s agent signed it, he was Alhaji Sani. He knew Alhaji Sani during this project. The appellant did not sign the quotation. The Appellants collected the quotation from him and gave Sani. The Appellant said, he did not know how to write. He gave the Appellant the document. He denied supplying only materials to the site. He was surprised to hear that Mr. Gyang was the engineer for the appellant. The defendant collected the money when he completed the works. He is claiming N2m being the balance.
Alhaji Mohammed Sani who testified as PW3 said that he was a civil servant. He knew the defendant. He, also knew the Respondent. In 2001 he was with the appellant. He was called by the appellant and told of the NDLEA project. He was told to gather an architect and quantity surveyor in Abuja and move to Jos. While at the site, the appellant came with the Respondent. He was introduced to him in the company of the engineer from Jos Metropolitan Development Board. The engineer showed them the specifications of the works to be done. Five of them, himself, the Respondent/plaintiff and the appellant/defendant as well as the engineer from J.M.D.B and NDLEA were all present. They were directed to mobilize materials to the site. The Respondent commenced work after 3 days. He later brought a bill. He advised him to see the Appellant to negotiate. The Respondent was advised to see him for negotiation. Later in the day they all met. The Respondent/plaintiff brought the bill at N3.5 million. He made a cancellation on the bill. He identified it as Exhibit “A”.
Three of them negotiated the bill. They finally agreed upon N2.5million. There was an additional work. The Respondent agreed to execute it at N1 million. It was reflected in Exhibit ‘A’. The total contract sum was arrived at to be N2.9 million, The Respondent completed the works. He did not know if the Appellant paid the contract sum of N2 million to the Respondent. He did not keep the record of works paid to the Respondent. He gave the Respondent the sum of N400,000.00. The Appellant gave another N400,000.00. Salim gave him N100,000.00, totaling to N900,000.00; leaving a balance of N2 million. It was not true that the Respondent supplied materials for N900,000.00.
Under cross examination he said the works commenced before Exhibit ‘A’ was brought to the Appellant. Exhibit ‘A’ was a quotation. There ought to have been a reply to it. However not sure if the Appellant replied in writing. The Appellant told him to go ahead in the presence of another person. The Appellant did not sign Exhibit ‘A’. That he coordinate and managed the project in question, He agreed he was the manager. The agreement was informal. There ought to have been a formal agreement but the situation did not allow it. Exhibit ‘A’ is a bill. The appellant had no site Engineer for the project. He did not know Mr. Gyang who worked for the Appellant. The Appellant was not in office when he wrote Exhibit ‘A’, but he did approve it. He signed Exhibit ‘A’. He did not pay for the project. The Appellant was to pay for it. He had signed several documents on behalf of the Appellant. It was not true the Respondent was to produce gravel and coal for only to the site. He was a junior to the Appellant. He was not paid salary. Exhibit A, was brought to the attention of the Appellant. He denied being brought to tell lies. He was in court to tell the truth.
By the evidence of PW1, 2 and 3 as well as Exhibit A, the Respondent has discharged the initial burden of proof under section 131, (1) (2) and 133 (2) of the Evidence Act, 2011. In other words, he has discharged the initial evidential burden of proof which lies on him. The burden of proof now therefore shifts to the Appellant to adduce evidence rebutting the evidence of the Respondent. This is the position of the law on the burden of proof in civil cases as enunciated in the case of UTC (Nig) Ltd. V. Philips (2012) 6 NWLR Pt. 1295 p. 136 @ 108 where in Peter Odili, J.C.A, had this to say:
“From what has been stated earlier, it can be seen and clearly too that the respondent as plaintiff met the requirement of the provision of section 135(3) (i) of the Evidence Act on the burden of proof in civil cases lying on he who asserts as the Respondent has done on the matter of agency and the commission due to him. Having done his part since the onus of proof is not static but shifts between the plaintiff and the defendant it was now required of the defendant to rebut what the opponent had proffered and establish what he says is the correction position”. See also the following cases Ironbat V. as CRBRDA, 2003, FWRL Pt. 165 P. 371, Eseigbe V. Agbolor (1993) 9 NWLR Pt. 316 P. 128; Itanma V. Akpe-Ime (2007) 7 SCNJ P. 40 and M.W.T. (Nig) Ltd. V. PTF (2007) 15 NWLR Pt. 1058 P. 451 @ 492-93 where in AGUBE, J.C.A. said:
“If the party adduces evidence which ought reasonably to satisfy a jury that the fact ought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence was adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
Did the appellant, who was the defendant before the trial Court, adduce evidence rebutting or discrediting the evidence of the Respondent and that of PW1 and 3 on the existence of a contract for the execution of the NDLEA project in Jos?. The appellant gave evidence. He did not call any other witness in his defence, He testified that he knew the Respondent. He was served with a court process in which the Respondent claimed against him. He said he did not know what the Respondent was claiming, He did not know the money the Respondent was claiming. He did not know the work done by the Respondent. He knew the Respondent and one Sanni. They went to him and told him they could supply gravel and bitumen. He was constructing road at Busa Buji. The one at NDLEA office was different. He told them the quantity of several and bitumen he required. The Respondent supplied the same, he paid him. There were several supplies and he paid him. The total amount was N900,000.00. He paid the Respondent, It was not on credit. The Respondent did not write anything in form of tender to him. He said he was seeing Exhibit ‘A’ for the first time in court. He knew Mohammed Sani. He was a business partner to the Respondent. He paid some of the money to the Respondent through Sani, Sani’s father is his friend. It was because of Sani that he agreed to buy the items from them. There was construction works at NDLEA School in Jos. His company carried out the works. He employed an engineer by name Gyang to look after the works. He supervised the works at the NDLEA with others. He did not see the Respondent with NDLEA officials. The Respondent took the items to the site. He had paid for the items supplied by the Respondent. He did not know of N2million the Respondent claimed from him.
When Cross-examined, he said he was not reporting to the engineer of JMDB. The NDLEA had their engineers from Lagos. They supervised the works. His engineer was working hand in hand with those from NDLEA. His engineer was Mr. Gyang. He did not write a report to NDLEA. He is a friend to Sani’s Father. Sani would tell lies against him because he wants money. He cannot remember the number of tippers or gravel supplied to him at the site. He also cannot remember the tins of bitumen or trips of sand supplied to him by the Respondent. He cannot remember what he paid for the items supplied by the Respondent. It was not only the Respondent that supplied him with items. He did not collect payment from NDLEA. JMDB had no business with the NDLEA job/works.
Pwul Esq. of learned counsel to the appellant in his brief of argument adumbrated that the Respondent did not prove that there was contract between the appellant and the Respondent for the NDLEA project involving the sum of N2,9m of which N900,000.00 was paid leaving a balance of N2million. Learned counsel was of the view that there was no acceptance of Exhibit ‘A’ by the Appellant. That the evidence of the Respondent, PW1, 2 and 3 are contradictory on the issue of the contract. That the appellant did the works and was supervised by the appellant’s engineer by name Gyang. That the sum of N900,000.00 paid to the Respondent by the appellant was for the supply of gravel, bitumen and sand at the project site. That the oral evidence of pw1, 2 and 3 cannot be admitted and relied upon in resolving the issue of whether there was a valid contract entered into by the parties. In view of the foregoing, Pwul Esq. of learned counsel to the Appellant did submit that the Respondent as Plaintiff before the trial court had failed to prove the existence of any contract between the appellant and the Respondent for the NDLEA project.
The learned trial judge on pages 49 – 56 of the record of appeal made a summary of the evidence adduced by the Respondent and the appellant. He specifically considered the evidence of P.W1 and PW3 and gave reasons why he preferred their testimonies rather than the evidence of the appellant: He also stated that the failure to call Mr. Gyang by the appellant was fatal to the defence against the claims of the respondent. The learned trial judge then arrived at a decision on page 57 of the record of appeal thus:
“From the totality of the evidence on the first issue, I am satisfied that the defendant actually subcontracted to the plaintiff some jobs at the NDLEA site in Jos for the sum of N2.9 million and that the defendant has only paid the plaintiff the sum of N900,000.00 leaving N2million unpaid”
The decision of the learned trial judge cannot be faulted in view of the evidence of PW 1, PW 2 and PW3. PW 1, Ayuba Dalyop, testified that the appellant introduced the Respondent to him. That the NDLEA project was subcontracted out to the Respondent by the appellant. That he supervised the project which was executed by the Respondent. PW 2, the Respondent testified that he was invited by the appellant. The appellant subcontracted the NDLEA project for him. He submitted a quotation, Exh. ‘A’ to the appellant. Though the appellant did not sign it, Sani, who acted for him signed it. An additional works was done after an agreement for it was reached by him and the appellant. Part payments totality to the sum of N900,000.00 was made through Sani Sani and others. The appellant refused to pay the balance of N2m after the execution of the project. P.W.3 Mohammed Sani testified. This witness said he was the manager of the appellant for the NDLEA project. That the Respondent submitted a quotation for the said project. He signed the quotation on behalf of the appellant. The appellant made part payments to the Respondent through him.
The evidence of the appellant has not discredited the evidence of PW1, 2 and 3. A contract or an agreement may be in writing, orally or even by the conduct of the parties. This was the view of the Supreme Court in the case of A.G. Rivers State v. P. G. Akwa Ibom State (2011) 8 NWLR Pt. 1248 P.31 @ 108 where it was held that an agreement need not be in writing nor signed by the parties. It can be oral or inferred from the conduct of the parties. What matters is that there must be evidence of consense ad idem between them. The introduction of the Respondent to PW1, Ayuba Dalyop and the NDLEA engineers; his authorization of PW3 to sign the quotation, Exhibit ‘A’; the part payment of N900, 000.00 to the Respondent through Sani are all indicative of the appellant’s contractual relationship with the Respondent.
If the NDLEA road project was supervised and or executed by Mr. Gyang, not the Respondent, why did he not call Mr. Gyang as his witness. It is true a party needs not call a specific witness or number of witnesses, but if the evidence of such witness is vital to his case, failure to do so would be fatal to his case. Merely denying the existence of a contract between him the respondent without calling Mr. Gyang cannot absorb him from being liable in view of the evidence of PW1, PW2 and PW3.
Mr. Pwul Esq. of learned Counsel to the appellant made a heavy weather of there being contradiction’ in the testimonies of PW1, PW2 and PW3 which rendered their evidence in unreliable. That the pleadings of the Respondent not supported by evidence, and that the evidence at variance with the pleadings. I have had given a dispassionate consideration of these assertions. I have not been able to fish out the contradictions in the evidence of PW1, PW2 and PW3, inter se and intra se. Even if there are, same are on minor or trivial issues which cannot and have not discredited the evidence of these witnesses. In the result I do hereby resolve this issue one (1) against the appellant.
ISSUE TWO (2)
Whether the learned trial judge properly evaluated the evidence before him, particularly that of PW1 and PW3 before arriving at his decision:
On this issue, Pwul Esq. of learned Counsel to the appeal submitted that the trial judge did not evaluate the evidence of PW1 which reliance was placed on in arriving at a decision simply because he, the witness, is a civil servant. It was further submitted that the evidence of PW3 who the learned trial judge found to be related to the appellant, and also a managing partner, was not properly evaluated. Had the learned trial judge evaluated these pieces of evidence properly, it was submitted, he would not have placed premium on same, which had influenced his decision. The improper or non-evaluation of the evidence of PW1 and PW3 vis-a-vis that of the appellant, it was submitted, showed that the learned trial judge did not appreciate the evidence before him, which led him to arrive at a wrong decision that there was a valid contract for the NDLEA project between the appellant and the Respondent. In view, of the foregoing, this court has been urged to hold that the learned trial judge failed in his primary duty to evaluate the evidence of PW1, PW2, PW3 and that of the appellant on the existence of a valid contract. This court has been urged to evaluate same and arrive at a just decision. The cases of Fagunwa V. Aditi (2004) 17 NWLR Pt. 403 p. 544 and Lawal V. U.T.C. (Nig.) Ltd. Plc. (2005) 13 NWLR Pt. 943 p. 651 were cited to buttress the submissions supra.
Learned counsel also submitted that the evidence of the Appellant on the relationship of PW3 and the Respondent was not evaluated by the trial Court before accepting it and ascribing probative value to it. It was submitted that had the learned trial Judge correctly evaluated the evidence of PW3, he would have found the PW3 was a relation and managing partner of the respondent. He would have therefore accorded less premium to such evidence. Therefore he would have arrived at a different decision. The learned trial Judge did not therefore follow the correct procedure in the evaluation of evidence as enunciated in the cases of Adebayo V. Shogo (2005) 7 NWLR Pt. 925 p. 467 and Gonzee (Nig.) Ltd. V. NERDC (2005) 13 NWLR Pt. 945 p. 634. It was further submitted that the failure to properly evaluate the evidence led to a wrong decision occasioning miscarriage of justice. The cases of Oluwole V. Abubakar (2004) 11 NWLR Pt. 882 p.545 and Lawal V. U.T.C. (Nig.) Plc. were cited to support the submission supra. On the whole, learned counsel submitted that the learned trial Judge failed to correctly evaluate the evidence before him, thereby arrived at a wrong decision that there was a contract for Two Million, Nine Hundred Thousand Naira (N2.9 Million), and that there is a balance of Two Million Naira (N2,000,000.00) unpaid. The Respondent’s claims before the trial Court, it was submitted, ought to have been dismissed. Learned counsel did urge this Court to resolve this issue in favour of the Appellant.
Okoro Esq. of learned counsel for the Respondent did submit that the learned trial Judge properly evaluated the evidence adduced before him and in arriving at his decision. On the evidence of PW1, it was submitted that his evidence was properly evaluated when the learned trial Judge observed that being a civil servant working for the Government he had no particular interest to project in the litigation or dispute before the Court. The learned trial Judge therefore accepted, believed and relied on his evidence. On the evidence of PW3, learned counsel submitted that the learned trial Judge did consider his relationship with the Appellant before, during and after the execution of the NDLEA Project. It was the Appellant that introduced the witness to the Respondent. This evidence was not challenged. The trial Court was right in accepting and relying on this evidence having expressed the view that the witness had nothing to gain by telling lies against the Appellant. It was submitted that the usage of the word “related” referred to their dealings in the past and present concerning the NDLEA project, not blood or biological relationship.
On the evidence of DW1, the Appellant, of not having been properly evaluated, learned counsel did submit that having asserted that the Respondent supplied only materials, and had been paid; and that one Gyang supervised and or executed the NDLEA Project for and on behalf of the Appellant, the failure to call Gyang to give evidence was fatal to the defence. Learned counsel conceded that a party need not call specific number of witnesses to prove a case, but when a vital witness was not called, it would be fatal. It is therefore not correct to say that there was no evaluation of the evidence of the Appellant.
Okoro Esq. submitted that an appellate court has no business to interfere with the findings, evaluation of evidence and ascription of probative value thereto, unless such an exercise was not done or if done, not properly. The cases of Awoyooh V. Aro (2006) 4 NWLR Pt. 971 p.481; Omozeghisn V. Adjarho (2006) 4 NWLR Pt. 969 p. 33 and Ideozu V. Ochioma (2006) 4 NWLR Pt. 970 p. 764 were cited to buttress the submission supra. Concluding, learned counsel did urge the Court to resolve this issue against the Appellant.
What is evaluation of evidence by a Court of law? How is evidence evaluated by the Court? What is the effect of non-evaluation or improper evaluation of evidence by a Court? What can an Appellate Court do when there has been non-evaluation or improper evaluation of evidence by a trial court? These questions would be addressed and answered in a short while in this judgment.
In Bello V. State (2007) 10 NWLR Pt. 1043 p. 564 @ 582 this Court stated that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. There must be stated on record how the Court arrived at its conclusion of preferring one piece of evidence to the other. See also Alake v. State (1992) 9 NWLR Pt. 265 p. 260. In the civil case of Ilori V. Tella (2006) 18 NWLR Pt. 1011 p. 258 @ 291 the Court of Appeal held that evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and the disbelief of the other or a reasoned preference of one version of evidence to the other. See also Oyekola V. Ajibade (2004) 17 NWLR Pt. 402 p. 356 and Idakwu V. Nigerian Army (2004) 2 NWLR Pt. 857 p. 249.
In the evaluation of evidence, the trial Judge has to consider or give due regard to, among other things the following:
(i) admissibility of the evidence
(ii) relevancy of the evidence
(iii) credibility of the evidence
(iv) conclusiveness of the evidence,
(v) probability of the evidence in the sense that it is more probable than the evidence of the other party.
(vi) finally, the trial Judge, having satisfied himself that all the above requirements have been met, apply the law to the facts presented in the case before arriving at a conclusion one way or the other. See Mogaji V. Odofin (1978) 4 S.C. Pt. 91 and Adeyeye V. Ajiboye (1987) 3 NWLR Pt. 61 p. 432.It is worthy of note that the evaluation of evidence and ascription of value thereto are the preserve of the trial Judge who would have had the singular opportunity of seeing, hearing and observing the witnesse(s) giving evidence. In Yadis (Nig.) Ltd. V. G.N.I.C. (2007) 111 NWLR Pt. 1055 p. 584 @ 607, it was held that it is the primary duty of the trial Court or trial Judge to evaluate evidence, make findings and apportion persuasive value thereto. It is not for an appellate court to do so, except where the trial court failed to do so or it was improperly carried out. In Anyegwu V. Onuche (2009) 3 NWLR Pt. 1129 p. 659 @ 615, it was held that the findings of fact, evaluation of evidence, ascription of probative value thereto, are the exclusive preserve of the trial Court or trial Judge as the case may be. Where a trial Court properly evaluated the evidence before it and ascribed probative value thereto, an appellate court has no business to interfere with such evaluation and ascription of persuasive value thereto. It cannot substitute its own findings, evaluation or ascription of probative value merely because it could not agree with the way or manner it was carried our by the trial court. See NEPA V. Adesanju (2002) 17 NWLR Pt. 797 p. 28 AND Ndidi V. State (2007) 19 NWLR PT. 1052 P.63). Did the learned trial judge evaluate the evidence before him before arriving at his decision on page 57 of the record of appeal to the effect that:
“From the totality of the evidence on the first issue, I am satisfied that the defendant actually subcontracted to the plaintiff some jobs at the NDLEA site in Jos for the sum of N2.9million and that the defendant only paid for plaintiff the sum of N900,000.00 leaving a balance of N2 million unpaid”.
The learned trial judge on pages 49 to 56 of the record of appeal made a summary of the evidence adduced by the respondent and the appellant. The learned trial judge then specifically considered the evidence of PW1, Ayuba Dalyop and PW3, Mohammed Sani and stated reasons why he accepted their testimonies rather than that of the appellant. He also considered the failure of the appellant to call Mr. Gyang to testify on the NDLEA Road project. Thereafter he arrived at his decision on page 56 of the record of appeal reproduced supra. In my view what the learned trial judge did as enumerated above, was an evaluation of the evidence though may not be elegant as Mr. Pwul Esq. would want it to be. AUGIE J.C.A, in the case of Ilorin Tella (2006) 18 NWLR Pt. 1011 P. 272 @ 291 had this to say on what evaluation of evidence entails:
“Evaluation of evidence entails the assessment of evidence so as to give value or qualify it; it involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one price of evidence to the other”
On why the learned trial judge preferred the evidence of the respondent rather than that of the appellant on the NDLEA Road Project in Jos, he observed as follows on page 56 of the record of appeal.
“The PW1 is a civil servant, he has no reason to tell lies against the defendant, the PW1 is related to the defendant from the evidence in both sides, he too will have no reason to tell lies against the defendant. The defendant alleged that the PW3 and the plaintiff are business partners but he did not tell the court what business they were partnering. The appellant claim he had his own engineer at the site by name of Gyang but did not call him to testify neither did the defendant call the NDLEA engineer whom he alleged supervised the project to testify”
As I pointed out earlier in this judgment, the evaluation of the evidence by the learned trial judge may not be at its best, but it was an assessment of the evidence whereby the learned trial judge preferred the evidence of the respondent to that of the appellant. This issue is hereby resolved against the appellant.
ISSUE THREE (3)
Whether the award of interest of 22% interest against the appellant on the two million Naira (N2 million) being judgment sum was justified.
On this issue, learned Counsel to the appellant submitted that the evidence of the Respondent on the 22% percentage interest is at variance with the averments in paragraph 10 of his affidavit. It was further submitted that the evidence of PW2 and PW3 as well as Exhibit “A” are at variance with the pleadings, therefore, such evidence go to no issue. The trial court, it was submitted, erred in law when it relied on such evidence in arriving at a decision in awarding 22% interest to the Respondent. The cases of George V. Dominion Flour Mills (1963) AII NLRP. 1 and Oversee Construction Ltd. V. Creek ENL. Ltd. (1985) 3 NWLR Pt. 13 P. 407 were cited to buttress the submission supra. Learned Counsel further submitted that the basis of the claim of interest by the Respondent is the contract for the NDLEA Project. That being the case, it was submitted, the award of interest in such a contractual relationship is governed by the principles of law as enunciated in the case of EKWU nife v. Wayas Civil Ltd. to (1989) NWLR Pt. 122 P. 422.
Pwul Esq. of learned counsel, submitted that it is elementary principles of law of contract that parties are bound by the terms of the agreement. In Exhibit ‘A’, it was contended, there was no agreement for payment of interest contained therein. Interest rate must be agreed upon before it could be claimed. The case of Henkel Chemical (Nig) Ltd. V. A.G. Ferron & Co. (2003) NWLR Pt. 810 P. 306 was cited in aid. Even if interest were to be charged, Learned Counsel adumbrated, it ought to be on the sum of N1 million, not N2 million Naira as awarded by the trial Court. On Exhibit ‘B’, it was submitted that being a loan from a financial institution, there must be evidence that such institute has been lincensed to grant loans, not being a recognized Bank or an authorized Money Lenders, charging interest on sums of money given out as loan is illegal in law. The trial court was therefore wrong in relying on an illegal or unlawful transaction in awarding interest in favour of the Respondent. This court was urged to resolve this issue in favour of the appellant.
For the Respondent, Okoro Esq, submitted that the claim of 22% interest was predicated on the judgment sum consequent to the judgment of the trial Court. It was his further contention that the claim of interest was supported by the averments contained in paragraph 10 of the affidavit of the Respondent. Having not denied same by way of further affidavit, the appellant must be deemed to have admitted same. Facts admitted, it was submitted, need no further proof. Section 74 of the Evidence Act, 2004 was relied on. On the contention that the facts in support of a claim for interest must be pleaded, it was; submitted that the Writ of Summon and the pleadings of the Respondent have satisfied this requirement.
Submitting further, learned Counsel alluded that the averments on 22% interest by the Respondent were not challenged nor controverted by the appellant. Where evidence adduced has not been controverted by the opposing party, the court is entitled to accept and rely on it. The case of Yakubu V N.W.T. Adamawa State (2006) 10 NWLR Pt. 989 P. 513 was cited in support. Okoro Esq. of learned Counsel submitted that in law there are two circumstances where interest can be awarded by a court which are:
(i) As of right. This arises where it was contemplated by the parties in an express or implied agreement or under mercantile custom or principles of equity in a breach of fiduciary relationship.
(ii) Where it is conferred by statute or rules of court. Learned Counsel submitted that from the writ of summons and the pleadings, the Respondent has had no money to execute the NDLEA project that was why he borrowed the money. Therefore, the argument that there was no agreement on which the interest can be charged cannot be sustained in view of the decision in the case of Adeyomi V. Lan And Baker Nis, Ltd. (2000) 7 NWLR Pt. 663 O. 32 @ 48.
Concluding, Okoro Esq. contended that the interests that were awarded by the trial court was justified in view of the unchallenged evidence of PW2 and PW4. This Court has been urged, to resolve this issue against the appellant.
What is an interest which can be awarded by a court of law to a party in a civil litigation. There are two types of interests which are awardable by a court of law in a civil suit or litigation. It could be a prejudgment or post-judgment interest, Pre-judgment interest is statutorily prescribed either from the date of the loss or from the date where the complaint was filed up to the date the final judgment is entered. It may or may not be an element of damages. It is usually calculated only for liquidated sums. See Black’s & Law Dictionary, 8th editions page 830, by Brayan A. Graner. In Adeyemi V. Lan and Baker (Nig) Ltd. (2000) 7 NWLR Pt. 663 P. 330 @ 48, this court held thus:
“……the law on pre-judgment interest is that the award must be based on either statute or Mercantile Custom or equity and the Plaintiff must plead the basis and lead satisfactory evidence. That is so but the law also recognizes the right to interest of a plaintiff in a claim for the return of money from commercial transactions particularly where the defendant has held money of the plaintiff for some time.”
In the case of N.G.C.C.O. NPA (1980) N.129 p. 942, Akpabio J.C.A. said:
“A judgment for return of a money is usually accompanied by an award of interest for the period for which it is claimed. In appropriate cases when interest is awarded though not claimed in the writ, it is in the nature of consequential order”.
LORD DENNING, in Harbutts Plasture Ltd. V. Wayne Tank And Pump Cor- Ltd, 1970) 1 GBD P. 447 @ 468 said:
“It seems to me that the basis for the award of interest is that a defendant has kept the plaintiff out of his money and the defendant has had the use of it to himself. So he ought to compensate the plaintiff accordingly”
In Berliet (Nig.) Ltd. V. Kachalla (1995) 9 NWLR Pt. 420 p. 478 the Supreme Court per Ogundare J.S.C. (of blessed memory) held that:
“There is clearly a difference between award of interest prejudgment where plaintiff must specifically claim such and prove it, the award of interest on a judgment is purely statutory and can only be awarded if there are provisions to that effect in the law or rules of Court.”
Post-judgment interest, on the other hand, is after adjudication or delivery of judgment. See G.K.F.I. Nig. Ltd. V. NITEL Plc, (2009) 15 NWLR Pt. 1164 P. 344 @ 379. A court of law is empowered by the Rules of Court to grant or award post-judgment interest in appropriate cases, See Assam Vs. D.F.S. Ltd. (2002) 16 NWLR Pt. 160 P. 234 @ 242; NIPOST V. I.E.C. Ltd. (2006) 8 NWLR Pt. 983 P. 435 @ 458 and Lamurde Local Government V. Karka (2010) 10 NWLR Pt. 1203 P. 574 @ 585.Was the trial court justified in awarding the 22% interest on the judgment sum N2 million to the respondent. Put it differently, did the respondent prove by credible evidence the 22% interest awarded to him by the trial Court? On page 3 of the record of appeal is the writ of summons, the originating process by the Respondent. In it he claimed interest as follows:
“And the Plaintiff claims interest at the rated of 25% percent from 20th July, 2001 until judgment and thereafter at 10% per annum until the entire sum is paid”
The pleadings (averments) in support of this claim of interest are contained in the affidavit filed in support of the originating summon, which are:
“10. That I borrowed N1,000,000,00 from a Financial Institution to execute the job and have been paying interest at 22% per annum at compound rate since 24th July, 2001 till date. A copy of the letter releasing the sum of N1, 000,000.00 to me from Saw lid Investment Ltd. is exhibit hereto as exhibit ‘C’.
The claims of the Respondent for interest are of two types. Firstly is for 25% percent from 24th July 2001 till judgment, which is a pre-judgment interest. Secondly, 10% per cent interest from the date of judgment until liquidation of the judged debt, which is a post-judgment interest. For the distinction between Pre-judgment interest and post-judgment interest see the following cases: G.K.F.I. (Nig) Ltd. V. NITEL Pls. (209) 15 NWLR Pt.344 P.344 @ 379; Nipost V. I.E. Co. Ltd. (2006) 8 NWLR Pt.98. 3 P. 435 @ 458; Lamurde Local Government V. Karka (2010) 10 NWLR Pt. 1203 p. 577 @ 585 and Assam V. D.F.S. Ltd. (2007) 16 NWLR Pt. 4060 P. 234 @ 272.
Courts of law are empowered to award both or any of the types of interests depending on the nature of the claim and the evidence adduced therefor. See Assam V. D.F.S. Ltd. (2007) 16 NWLR Pt. 1060 P. 234 @ 242 and Nipost v.T.C. Co. Ltd. (2000) 8 NWLR Pt. 983 P. 435 @ 458.
The trial Court on page 58 of the record of appeal, which is the judgment of the Court found as follows:
“There is no doubt also that the plaintiff is to pay interest of 22% on the loan.
From the unchallenged evidence of PW4 and exhibit B while there is no evidence that the plaintiff and the defendant agreed that interest was to be charged according to usages, there is no doubting the fact that the money the Plaintiff used to do the job for the defendant, is money meant for business which has been tied down by the defendant, it is therefore clear that the court of justice and fairness has, in the circumstances to award interest.”
The trial Court went on further to hold as follows:
“The plaintiff therefore is entitled to interest on the said sum. I, in conclusion therefore enter judgment for the plaintiff in the sum of N2 million with interest of 22% P.A. from July 2001 to today which is the date of judgment, and thereafter at the rate of 10% until the entire judgment sum is liquidated.”
Having found on page 58 of the record of appeal, the judgment of the court, that there was no evidence that the parties agreed that interest be charged on the loan, was the learned trial judge right when he awarded 22% interest as pre-judgment interest from the date the suit was instituted upto the date of judgment? I agree in toto with the findings of the learned trial judge that there was no agreement between the parties for the charging of pre-judgment interest on any loan. Therefore, any interest charged on the loan of N1,000,000.00 taken from P.W. 4 or on the N2 Million judgment sum cannot be legal. I am fortified in coming to this decision by the authority of Skymi & Motor Ltd. V. UBA Plc (2012) 10 NWLR Pt. 1309 p. 481 @ 519 where it was held as follows:
“It appears that although the Court is at liberty to award post judgment interest on the judgment sum without much ado, a plaintiff seeking pre-judgment interest must plead and lead evidence to prove same.”
At this juncture, I think it is apposite to refer to the evidence of the Respondent on the issue of interest claimed. The Respondent testified as P.W.2. On page 27 of the record of appeal this is what he said on the loan he took from PW 4 and the interest thereon:
“I borrowed money to complete the project. I borrowed money from Sawil Investment Ltd. I borrowed the sum of N1million at the interest of 24%. The money I borrowed was conveyed to me in writing…
On page 28 of the record of appeal the respondent continued with his evidence thus:
I have completed this job the defendant gave me at the NDLEA. The defendant has paid me the sum of N900,000.00 leaving a balance of N2 million which he has not paid. I had made several demands from going to Jigawa six times but he did not pay me. I am pleading with the court to help me recover the money with 22% interest”.
The Respondent sued the appellant before the trial court claiming the sum of N2 million and interest thereon . Exh. ‘A’ and ‘B’ are the documents being relied upon as the contractual agreement between the parties. In these documents nothing was said about the 22% or 24% interest or any interest chargeable in the event that the money that might be due to the Respondent was not paid as agreed or within a specified period. In other words, there was no agreement, expressly or impliedly for the payment of interest on any loan to be taken by the Respondent for the execution of the NDLEA project, which was subcontracted to the him by the appellant. There is also no evidence on the statute or mercantile custom applicable to the transaction or contract entered into between the appellant and the respondent. The learned trial judge, in my view, erred in law when he awarded interest at the rate of 22% P.A. from July 2001 to the date of judgment. This is a pre-judgment interest which cannot be awarded without there being an agreement for it by the parties or is chargeable under any law custom or other recognized legal means. The award of 22% P.A. interest on the judgment sum of N2 million from July 2001 to date of judgment therefore cannot be justified nor sustained. The award of interest of 22% from July 2007 up to the date of judgment on the judgment sum of N2 million is hereby avoided, and set aside.
What of the 10% interest from date of judgment until the liquidation of the judgment debt? As earlier alluded to in this judgment, this claim is a post judgment interest. Post judgment interest is one which is awardable after the delivery of judgment by the Court. It is at times provided by Rules of Court. For instance this Court, in a number of decided cases, has had held that a Court of law can award post judgment interest that is provided by the various Rules of Courts. For instance in Lamurde Local Government V. Kaka (2010) 10 NWLR Pt. 1203 p. 574 @ 583, this Court held that by Order 40 Rule 7 of the then Gongola State High Court (Civil procedure) Rules 1987, the Court can make an order for the payment of interest after judgment not exceeding 10% per cent. In Assam V. D.E.F.S. Ltd. (2007) 16 NWLR pt. 1060 p. 234 @ 242 this court also held that a Court of law can award interest after the delivery of judgment not exceeding 10% per cent. In NIPOST V. I.E. Co. Ltd. (2008) 8 NWLR Pt. 983 p. 435 @ 459, it was held that the Court can award interest after judgment not exceeding 5% per cent. The provisions in the plateau State High Court (Civil Procedure) Rules 1987 are not dissimilar to the provisions in the Rules applied by the Courts in the cases referred to supra. Order 40 Rule 7 of the Plateau State High Court (Civil procedure) Rules 1997. Provides as follows:
“The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding ten percent per annum to be paid upon ant judgment, commencing from the date thereof or afterwards, as the case may be.”
Therefore, the award of 10% per cent interest on the judgment sum from date of judgment until liquidation of the judgment debt, in my view, was properly and legally made by the trial Court. In short, the trial Court was justified in awarding the 10% per cent interest on the judgment sum from date of delivery until the said judgment debt was fully liquidated.
Finally, the issues formulated for determination in this appeal are resolved as follows:
Issue 1, is hereby resolved against the appellant.
Issue 2, is hereby resolved against the appellant.
Issue 3, is partially resolved in favour of the appellant to the extent that the award of 22% interest on the judgment sum of Two Million Naira (N2,000,000.00) from July, 2007 till date of judgment was not justified, Same is void and is hereby set aside. The award of 10% percent interest on the judgment sum from date of delivery until it is finally liquidated was justified, and is hereby upheld.
In the result, the appeal succeeds partially, that is, the award of 22% interest to the Respondent from July, 2001 to date of delivery of judgment is hereby set aside. The decision of the trial Court on the existence of a valid contract and the award of 10% are hereby affirmed as hereinbefore contained in this judgment. Parties to bear own costs of the appeal.
OYEBISI FOLAYEMI OMOLEYE: I have read in draft the leading judgment just delivered by my learned Brother, Bdliya, JCA. I entirely agree with His lordship’s line of reasoning and conclusion that this appeal succeeds in a very tiny part and fails substantially. I also dismiss the appeal and abide by the consequential orders of this Court, contained in the said leading judgment.
There is no doubt in my mind that, there was an agreement in which the Respondent acted for and on behalf of the Appellant in the execution of some projects of the NDLEA in Jos. That fact is clearly borne out of the evidence adduced by the Respondent, who was the plaintiff at the trial Court.
It is the contention of the Appellant, who was the defendant at the trial Court, that, there were contradictions in the testimonies of the Respondent’s witnesses therein. It is the settled position of the courts, especially, appellate courts that, a piece of evidence is said to contradict another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy in the both. In the case of: Dagayya v. the State (2006) 7 NWLR (Pt. 980) p. 637 at p. 677, paras. F – H, p. 678, para. A, the learned Mohammed, JSC stated thus:
“… in the law of evidence, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies in, say, details between them. In other words, contractions between two pieces of evidence go rather to the essentiality of something being or not being at the same time. Whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details. On really what constitutes contradiction in evidence, Nnaemeka Agu, JSC in Ayo Gabriel V. The State (1989) 5 NWLR (Pt. 122) 457 had this to say at Page 468:- “A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. It is useful to bear in mind the fact that the word contradict, comes from two Latin words, contra (opposite) and dicere (to say). Two pieces of evidence contradict one another when they are by themselves inconsistent, on the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains a little more than, what the other piece of evidence says or contains some minor differences in details.
Furthermore, also in the case of Dagayya v. The State supra at p. 664, paras. D – G Tobi, JSC, on the type of contradictions in the evidence of witnesses that will warrant a reversal of the Judgment of a lower court, had the following to say:
Where the grounds of appeal relied upon was that of contradictions in the evidence of witnesses … It is not enough to warrant a reversal of Judgment merely for the appellant to show the existence of those contradictions, without showing further that the trial Judge did not advert to and consider the effect of those contradictions. For an appellant to succeed on the grounds of contradictions in the evidence of witnesses … the contradictions must be shown to amount to substantial disparagement of the witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses. See Enahoro v. the Queen (1955) 1 All NLR 125. See also The Queen v. Ekanem (1960) 5 FSC 14; (1960) SCNLR 42; Omisade v. The Queen (1954) 1 All NLR 233.With great respect to the Appellant’s learned counsel, I do not agree with him that there were contradictions in the evidence of PW1, PW2 and PW3. The courts have also held that, the presence of mere minor differences in the evidence of witnesses goes to show that, the said witnesses have not been schooled and came to court with a mind-set. What is more, in this matter, it is patent on the record of appeal that, the learned trial Judge reviewed the evidence adduced by the Respondent, that is, the testimonies of his witnesses, placed same by the side of the evidence of the Appellant and gave the reasons for preferring the evidence in support of the position of the Respondent to that of the Appellant. In other words, the learned trial Judge assessed and evaluated the evidence adduced by the contending parties. He stated his reasons for believing, disbelieving and preferring the evidence of the respective parties and his conclusions in respect thereof.
It is elementary principle of law that, where the trial court has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value as was done in the instant matter, this Court, En appellate court has no business interfering with the learned trial Judges findings on such evidence. On this, see the cases of: (1) Woluchem v. Gudi (1981) 5 S.C. p.291; (2) U.B.N. Plc. v. Borini Prono. co. Ltd. (1998) 4 NWLR (Pt. 547) p. 640; (3) Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) p. 1 and (a) Onisaodu v. Elewuju (2006) 13 NWLR (Pt.998) p. 517.Regarding the awards of both pre-judgment and post-judgment interests, the general rule at Common Law is that, interest is not payable on a debt or loan in the absence of an express agreement or some course of dealing or custom to that effect. Thus, interest will however be payable where there is an express agreement to that effect and indeed such interest may even be inferred from a course of dealing between parties. See on this the case of: Diamond Bank Ltd. v. Partnership investment Co. Ltd. & Anor. (2009) 18 NWLR (Pt. 1172) p.67. In the case of: Afribank (Nig.) Plc. v. Akwara (2006) 5 NWLR (Pt. 974) p. 519, it was held by, Ogbuagu, JSC, that:
…..Except where parties have agreed on payment of interest, it is not right to award interest predating the date of judgment. See Himma Merchants Ltd. v. Alhaji Aliyu (1994) 5 NWLR (Pt. 347) 667, (1994) 6 SCNJ (Pt.1) 87 at 95, 97 – per Onu, J.S.C. and Ogbu & 4 Ors. v. Ani & 4 Ors. (1994) 7 NWLR (Pt.3551 L28; (1994) 7 SCNJ 383, just to mention but a few. There must be express agreement that interest will be
charged. See Kaduna State Transport Authority v. Ofodile (1999) 10 NWLR (Pt. 622) 259 at 265, 268, 269 C.A. and Nigerian Dynamics Ltd. V. Ibrahim (2002) 8 NWLR (pt. 768) 63.
In the instant matter, the learned trial Judge erred in awarding to the Respondent pre – judgment interest of twenty-two per centum (22%) on the Judgment sum of Two Million Naira (N2, 000,000.00) for any period of time, when, there being no prior agreement between him, that is, Respondent and the Appellant.
Under the rules of courts, a court or Judge can order the amount adjudged due, that is, the judgment debt, to attract interest from the date of judgment till payment, that is, until the judgment debt is finally liquidated, this is post-judgment interest. See on this, cases of: (1) Ekwunife v. Wayne (W/A) Ltd. (1989) 5 NWLR (pt. 122) p. 422 and (2) Jalico Ltd. v. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (pt. 391) p. 534. The Rules of the court, is the enabling power of the learned trial Judge in the instant matter, this is, Plateau State High Court (Civil Procedure) Rules, 1987. Order 40 rule 7 of the said Rules of the trial court the provides that:
The Court at the time of making any judgment or order, or at anytime afterwards, may direct the time which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding ten percentum per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be.
Hence, the learned trial Judge was well within power to have awarded to the Respondent, ten percentum (10%) interest on the judgment sum, from the judgment delivery date until the said judgment sum is fully liquidated.
For my above stated and the elaborate reasons contained in the leading judgment, I also dismiss this appeal accordingly. I make no order regarding costs.
JUMMAI HANNATU SANKEY, J.C.A.: I read in advance the Judgment just rendered by my learned brother, Bdliya, J.C.A. He has thoroughly dealt with all the issues raised in the Appeal. I agree with his reasoning and conclusions.
I also find no merit in the Appeal, with the exception of the award of 22% interest on the Judgment sum of Two Million Naira (N2, 000, 000.00), which was clearly not warranted, neither by the state of evidence adduced before the lower court nor was the legal basis for it established. The Appeal is hereby dismissed. I abide by the order as to costs made in the lead Judgment.
Appearances
S. D. Samchi Esq.For Appellant
AND
Edwim O. Okoro Esq.For Respondent
