ALPHOUNSUS A. UDO V. GOVERNMENT OF AKWA IBOM STATE & ORS
(2012)LCN/5455(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of June, 2012
CA/C/26/2010
RATIO
“Compensation is remuneration and other benefits received in return for services rendered, especially salary or wages. In theory, compensation makes the injured person whole.” Per TUR, J.C.A.
“It is a basic principle of law that in matters of contract the terms ‘special’ or ‘general’ damages are not applicable and should be avoided. What is awarded is the pecuniary compensation that would put the plaintiff in the position he would have been had the breach not occurred in so far as it is not too remote. See Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 295; Charai vs. Khawan (1965) 1 All NLR 182; Shell BP v. Jamal Nig. Ltd. (1924) 1 All NLR (Pt. 1) 542.” Per AKEJU, J.C.A.
CONTRACT: DOUBLE COMPENSATION: WHETHER DOUBLE COMPENSATION IS ALLOWED IN CONTRACT CASES
“What the appellant now seeks is terms that are more favorable to him which by the above decisions of the Apex Court the court has no jurisdiction to grant. Again the appellant having been compensated as stated in exhibit Q now seeks another compensation on the same contract or subject-matter. The law does not allow double compensation in contract cases.” Per AKEJU, J.C.A.
CONTRACT: PRIVITY OF CONTRACT: INSTANCES WHEN THE DOCTRINE OF PRIVITY OF CONTRACT SHOULD BE APPLIED WITH CAUTION
“I will draw attention to what Belgore, JSC (as he then was) said in Abusomwan v. Merchantile Bank of Nigeria Ltd. (1987) 2 NSCC 828 at 891 said concerning the doctrine of privity of contract to wit: “The learned justices of the Court of Appeal were in error in construing into this special banking transaction the principle of privity of contract. While in few remaining cases, privity is still good law, the banking law and transactions are so vital to international maritime and commercial business that to apply principles of privity of contract would destroy initiative and sometimes make transactions impossible… The principle of privity of contract has been so watered down over the years by remoteness principle and practices of banking and international commerce, that our courts must hesitate before apply them.” Per TUR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
ALPHOUNSUS A. UDO
(CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF MESSRS ALPHONSUS UDO) – Appellant(s)
AND
1. GOVERNMENT OF AKWA IBOM STATE
2. COMMISSIONER FOR HEALTH & SOCIAL WELFARE
3. ATTORNEY GENERAL OF AKWA IBOM STATE – Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The appellant was the plaintiff in suit No. HU/342/2000 commenced at Uyo division of the High court of Akwa Ibom State through the writ of Summons filed on 13th October 2000. The Statement Claim filed on 29th January, 2001 was amended and further amended by the Further Amended statement of claim filed on 28th June, 2006 wherein the plaintiff set out his claim in paragraph 35 thus:
“i) A declaration that the unilateral determination of the contract by the 1st and 2nd defendants which was entered into between the plaintiff and 1st and 2nd defendants for construction of 1 No. Standard Health Clinic at Mbak Ekpe, Ibesikpo Asutan Local Government Area without following the terms of the contract is a breach by the 1st and 2nd defendants.
ii) An order that the 1st and 2nd defendants pay the sum of N2, 958,791.50 (Two Million, Nine Hundred and fifty-eight thousand seven hundred and ninety one naira, fifty kobo (quantum meruit) being money already spent in the construction of 1 No. standard and Health Centre at Mbak Ekpe.
iii) Interest on N2, 958,791.50 at the current central bank rate of 21% – N601, 711.21 per annum from 1995 until the judgment is delivered.
iv) An order that the 1st and 2nd defendants pay the plaintiff the sum of N5 million (five million naira) being general damages suffered by the plaintiff.
The defendants filed a statement of defence which was eventually amended by the Further Amended statement of Defence filed on 14th November, 2006.
The appellant entered into contract with the Government of the defunct Cross River State for the construction of 1 No. Standard Health Centre at Mbak Ekpe, Ibesikpo Asutan Local Government Area for a sum of N125, 000.00. The Agreement to that effect was made on 16th December, 1980. The construction work was to be carried out in stages with an Interim Payment Certificate (IPC) issued at the completion of each stage. The plaintiff carried out four stages of the job and IPCs were issued for the four stages, but he received payment for only one of the stages leaving the amount of N71, 985.00 outstanding. The plaintiff then did not continue work on the project due to lack of fund.
The government of Akwa Ibom State represented, by the 1st and 2nd defendants being a successor to the old Cross River state Government in the matter of the contract, re-awarded the same project to the plaintiff for N2,872,557.00, payments were also not made but the contract was terminated by the government for lack of fund. The project was handed over to Ekpe Atai Local Government for completion by one Imaobong Missionary outreach from which the plaintiff received the sum of N200, 000.00 in connection with the contract.
At the hearing of the suit, the plaintiff testified as pw1 and called another witness who was pw2. The defendants defended the suit with the evidence of one witness who was DW1. For ease of reference, the following documents were received as exhibits it the trial.
Exhibit A – Copy of the Contract Agreement dated 16th December, 1980.
Exhibit B – Original Tax Clearance Certificate of the plaintiff.
Exhibit C – Copy of Contract Certificate of Insurance.
Exhibit D, E and F – Copies of Interim Certificate issued on 6/5/81, 11/12/81 and 16/12/1980 respectively.
Exhibit H – Agreement dated 1/11/94 rewarding the contract.
Exhibit J – Letter from F & GPC requesting for bank guarantee.
Exhibit G – Interim Certificate dated 15/7/93.
Exhibit K – Copy of Guarantee or Performance Bond issued by Anchor Insurance Company Ltd.
Exhibit L – Letter dated 26/10/9 terminating the contract.
Exhibit M – copy of letter to the Military Administrator of Akwa Ibom State dated 25/7/95.
Exhibit N – Letter dated 30/3/1999.
Exhibit O – Copy of letter dated 14/12/99
Exhibit P – Letter dated 30/5/2000.
Exhibit Q – Copy of Agreement with Imaobong Missionary Outreach dated 23/11/95.
Exhibit R – Copy of Valuation Report.
The above exhibits were tendered by the PW1 and PW2. At the end of the trial, the learned trial judge, in the judgment delivered on 5th June, 2009 dismissed the suit, and being dissatisfied with that judgment, the plaintiff (now hereinafter called the appellant) filed Notice and Grounds of Appeal on 3rd July, 2009 with 4 grounds of appeal. The Appellant’s Brief of Argument filed on 18th May, 2011 was deemed to have been properly filed on 7th June, 2011. The defendants at the trial court who are now the respondents filed the Respondents Brief of Argument on 5th July, 2011. The Appellant’s Reply Brief was deemed as properly filed on 27th February, 2012.
At the hearing of the appeal on 30/4/2012, the parties were represented by counsel. Emmanuel Sampsons Esq. of counsel adopted and relied on the Appellants’ Brief and the Appellants Reply Brief to urge court to allow the appeal while Mrs. F. J. Ibanga, Assistant Director, Ministry of Justice Akwa Ibom State adopted the 1st – 3rd Respondents, Brief, relied thereon and urged that the appeal be dismissed.
The appellant has distilled three issues for determination as follows:
1. Whether the lower court was right to rely on exhibit Q in dismissing the case of the plaintiff/Appellant when there was no privity of contract between the Appellant/plaintiff and Respondents/Defendants concerning the said exhibit.
2. Whether the Appellant had proved his special damages which could have entitled him to his claim in relief 2 of his Statement of Claim.
3. Whether the lower court was right to rely on a Valuation Report from Ministry of works to dismiss the case of the Appellant when neither such Report was tendered before it nor admitted by the Appellant.”
The respondents formulated the following issues for determination:
1. Whether the appellant was entitled to the payment of any further sum by the 1st and 2nd Respondents which he claimed as quantum mercuit (sic) after he had surrendered his contractual right to Imaobong Missionary Outreach in accordance with Exhibit Q.
2. Whether the appellant had claimed and proved his claim to special damages to entitle him to judgment at the lower court.
3. Whether from the totality of the evidence before the court the learned Trial Judge was justified in relying on the Valuation Report from the Ministry of Works in arriving at the conclusion which he did.”
The issues formulated by the parties are substantially the same. I therefore adopt the issues as formulated by the appellant.
The learned counsel for appellant argued on issue one that Imaobong Missionary Outreach was a total stranger to the contract between the appellant and the respondents. He submitted that contracts bind the parties thereto and their privies and not third parties. This is called privity of contract. According to counsel there are some recognized exceptions to this general principle for which he cited united Bank for Africa Plc v. Ogundokun (2010) All FWLR (Pt. 504) 1521 and contended that exhibit Q does not fall into any of those recognized exceptions.
The argument of the learned counsel is that though exhibit Q was signed by some officials of government that alone has not made them parties while Imaobong Missionary outreach was also not a party to exhibit H and did not enter into exhibit Q as agent of the respondents.
The respondents can therefore not take benefit of exhibit Q. He cited Dalek (Nig) Ltd v. OMPADEC (2007) 146 LRCN 869; PASCUTTO v. ADECENTRO (1997) 54 LRCN 2657.
It was also submitted that the respondents ought to have proved that the appellant agreed to hand over the project to Imaobong Missionary outreach on the principle that he who asserts has the burden to prove the assertion; section 137 of Evidence Act, Nwawu v. Okoye 37 NSCQR 230; Jack v. Whyte 5 NSCQR 610, the respondents failed to prove their assertion.
The learned counsel submitted that where the words of a contract agreement or document are clear the operative words should be given their simple and ordinary grammatical meaning. He submitted also that oral evidence will not be allowed to contradict or alter a document, citing Massager Ltd. v. Pegofor Ind. (2005) 127 LRCN 1134.
The contention of the appellant is that it was not stated in exhibit Q that Imaobong Missionary Outreach acted for the respondents as a result of which that exhibit is irrelevant to the contract between the appellant and the respondents and exhibit Q can therefore not relieve the respondents of their burden under the contract this issue the respondents contended that since the appellant had been paid an amount of N200, 000.00 for the purpose shown in exhibit Q, the respondents no longer owe any contractual obligation to pay the same appellant another money.
It was further contended that the N200, 000.00 paid to the appellant was compensation for taking over the project by Imaobong Missionary outreach as clearly stated in exhibit Q.
It was submitted that the content of a document voluntarily entered into by a party is binding on that party, citing Lewis v. UBA Pls. (2006) 1 NWLR (Pt. 962) 546; Ezeugo v. Ohanyere (1978) 6-7 SC 171.
The respondent’s counsel submitted also that where there is conflict between oral and documentary evidence, the latter should be preferred and used as a hanger to assess oral testimony, citing Chemical and Allied Products Plc. V. Vital Investment Ltd. (2006) 6 NWLR (pt. 976) 220; Aiki v. Idowu (2006) 9 NWLR (pt. 984) 47.
This issue has revolved around a document dated 23/11/95 and headed “COMPENSATION FOR SURRENDERING OF CONTRACT” which was admitted as exhibit Q at the trial. The document was tendered by the appellant in his cross examination at page 94 of the record. Hear him:
“I am aware that Imaobong Missionary Outreach completed the project on behalf of Mbak Ekpe and Ekpe Atai Local Government. There was a meeting on 15/11/95 between me, my counsel, the 2nd defendant, the Chairman of Ekpe Atai Local Government Area; a representative of Imaobong Missionary Outreach as regards the handing over of the project. I objected because I was not paid for the total job I did. I wasn’t paid for the job. I was paid N200, 000.00 by Imaobong Missionary Outreach. The document evidencing that payment was prepared with my letter headed paper. This is the document now shown to me.”
For ease of reference and for purpose of clarity, I reproduce hereunder the content of exhibit Q. “COMPENSATION FOR SURRENDERING OF CONTRACT I, ALPHONUS ANIEDI UDOH, Managing Director of Messrs ALPHONSUS A. UDOH of 81B, Oron Rood, Uyo have this 23rd day of November 1995 received the sum of N200,000.00) Two Hundred Thousand Naira) being COMPENSATION for surrendering contract for the completion of one Standard Health Clinic at 6 Mbak Ekpe Ekpe Atai Local Government Area, entered into between my company and the Akwa Ibom State Ministry of Health and Social Welfare on the 1st day of November, 1994 from the Chairman Board of Directors, IMAOBONG MISSIONARY OUTREACH of 20, Iboko Street, Uyo, who have volunteered to pay same to enable them take over the construction and later management of the said clinic.”
Exhibit Q was duly signed by the appellant and his solicitor, Efiong Ekpenyong Esq., the Representatives of the Outreach; two representatives, Commissioner and Director General of the contract awarding Ministry also signed.
I am fully convinced that exhibit Q which I have reproduced above is written in clear, simple and straight forward language that it requires no interpretation; it is only to be accorded its grammatical meaning. It is the law that where the words employed by the maker(s) of a document are simple, plain and clear the only duty the court has is to give the plain words their ordinary meaning without more. The court does not possess the jurisdiction to construe a contractudal document in a manner that will be more favorable to a party that what the document has strictly state.
The parties are bound by documents they have freely and voluntarily subscribed to.
The following words of Tobi JSC in Odutola v. Papersack Nig. Ltd. (2007) All FWLR (Pt. 350) 1214 at 1235 are instructive on this issue:
“Parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a court of law can only interpret the agreement strictly in its legal content and arrive at a conclusion on the law and the law alone in respect of it. A court of law cannot construe the agreement to convey the meaning as understood by the parties, if it is different from the real meaning of the agreement.”
Again in Idoniboye-Obu v. NNPC (2003) FWLR (pt. 146) 959 at 1007, the same Tobi JSC said:
“A party who has opened his heart, mind and eye to enter into an agreement is clearly bound by the terms of the agreement and he cannot seek for better terms midstream or when the agreement is a subject of litigation, when things are no longer at ease. Although a party may seek for better terms, the court is bound by the original terms of the agreement and will interpret them in the interest of justice.”
The terms of exhibit Q and indeed the essence thereof have been stated in clear, simple and plain language that the only duty this court has is to give it its grammatical meaning. See: Owoniboys Technical Services Ltd. UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (pt. 361) 402; Nneji vs. Zakhem con. (Nig) Ltd. (2006) 12 NWLR (pt. 994) 297, (2006) All FWLR (Pt.330) 1021.
The clear and simple meaning of exhibit Q is that Imaobong Missionary Outreach had paid an amount of N200,000.00 to the as compensation in the matter of the contract he entered into with the respondents, and the appellant accepted that sum as satisfactory enough for him to surrender the contract to Imaobong Missionary Outreach for completion.
What the appellant now seeks is terms that are more favorable to him which by the above decisions of the Apex Court the court has no jurisdiction to grant. Again the appellant having been compensated as stated in exhibit Q now seeks another compensation on the same contract or subject-matter. The law does not allow double compensation in contract cases.
I resolve this issue against the appellant.
On the second issue the appellant contended that the failure of the respondents to respond to the Valuation Report forwarded by the appellant amounted to an admission. He cited Cooperative Development Bank plc v. Ekanem (2010) All FWLR (pt. 511) 833. It was submitted that special damages is proved strictly by adducing credible evidence, citing Adim vs. Nigeria Bottling Ltd. (2010) All FWLR (Pt. 527) 690; Kopek Construction Ltd. v. Ekisola (2010) All FWLR (Pt. 519) 1035; Ololo v. Nigerian Agip Oil Ltd. (2001) 88 LRCN 2283, and that the appellant had met all the requirements of strict proof of special damages.
It was further submitted that the trial court was wrong in holding that the appellant was not entitled to N5, 000,000.00 claimed as general damages which is for compensation for pains and suffering relying on. Adim vs. Nig. Bottling Co. Ltd. (supra).
For the respondents it was contended that the appellant claimed quantum meruit being money already spent on the construction work based on exhibit R prepared by Messrs NASIC Consultants that based same on six stages of the building contract and not on four stages that the appellant claimed to have carried out, and which would have entitled him to N71, 985.00 as against the sum of N2, 958,791.50 claimed by the appellant. Appellant who had collected N200, 000.00 from Imaobong Missionary Outreach, an amount that is more than his entitlement of N71, 985.00 can no longer be entitled to further amount.
In the Reply Brief, the appellant argued that special damages and quantum meruit are the same and any distinction between them will amount to a mere technicality.
It must be noted that the action of the appellant is founded upon the contract awarded on 16th December 1980 and rewarded on 1st November, 1994. It is a basic principle of law that in matters of contract the terms ‘special’ or ‘general’ damages are not applicable and should be avoided. What is awarded is the pecuniary compensation that would put the plaintiff in the position he would have been had the breach not occurred in so far as it is not too remote. See Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 295; Charai vs. Khawan (1965) 1 All NLR 182; Shell BP v. Jamal Nig. Ltd. (1924) 1 All NLR (Pt. 1) 542. It is evident as concluded on issue 1 that the appellant having accepted the amount of N200, 000.00 as compensation cannot be awarded special or general damages which the law does not allow.
I resolve issue 2 also against the appellant.
Issue three is that the lower court relied on Valuation Report from the Ministry of works to dismiss the plaintiff’s case when the report was neither tendered nor admitted.
The appellant contended that the respondents who asserted that the work done on the project was N101, 687.00 according to Estate Valuers from the Ministry of works failed to prove that assertion, as they failed to tender the report for the court to appraise, This failure to tender, according to learned counsel amounts to withholding evidence under section 149 (d) of Evidence Act. The case of Ogunonzee vs. State (1998) LRCN 3512 was cited.
It was contended by the appellant that the letter No. MOT/HD/2056/26 pleaded by the respondents as containing the valuation report was also not tendered because the content would have been unfavorable to the respondents. It was submitted that the holding of the lower court was speculative, citing Animasaun v. UCH 43 LRCN 51.
According to the respondents, the appellant did not challenge the report in the pleadings nor filed Reply to the defence but only denied knowledge thereof in oral evidence. It was submitted that facts not challenged in pleadings are deemed as admitted and any evidence on a fact not pleaded goes to no issue because the parties are bound by the pleadings, citing Gagarau v. Pashiri (2006) 1 NWLR (Pt. 962) 521; Eneoli v. Orakwe (2005) 1 NWLR (Pt.951) 342.
The learned counsel submitted that the law does not require that all pleaded documents must be tendered in evidence, citing Bamgbhin v. Oriare (2009) 13 NWLR (Pt.1158) 370.
In his Reply Brief the learned counsel for the appellant submitted that since issues had been joined on the Valuation Report, a Reply to Statement of Defence was unnecessary and failure to file a Reply does not amount to admission, citing Egesimba v. Onuzuruike (2002) 103 LRCN 2424.
In paragraph 8 (d) of the Further Amended Statement of Defence, the respondents pleaded that Estate Valuers from the Ministry of Works were directed to value the work done at the site and recommendation was made through letter No. MWT/HD/2056/26 dated 22nd September, 1995 wherein the value of the job was put at N101, 687.00.
The DW1 who stated this in evidence said he did not have the report of the Valuation.
The learned trial judge at page 157 of the record of appear merely emphasized his acceptance of the defendants’ (respondents) assertion that by accepting the amount of N200, 000.00 from Imaobong Missionary outreach, the appellant had been paid more than what he was entitled to get whether the N71, 985.00 as exhibits E, F and G tendered by the appellant or N101,687.00 stated by the respondents. There was no specific finding made in favour of the respondents in respect of any Valuation Report.
I do not find any miscarriage of justice occasioned by the finding of the learned trial judge in this respect. I therefore resolve issue No. 3 against the appellant.
The three issues having been resolved against the appellants, this appeal has failed and it is dismissed.
I make no order as to costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Isaiah Olufemi Akeju, JCA.
I agree with his reasoning and conclusions in determining the three issues in this appeal. I also agree that no miscarriage of justice has been occasioned in the trial of this suit. The appeal therefore fails and is hereby dismissed by me as well. No orders as to costs.
JOSEPH TINE TUR, J.C.A.: Having read in advance the judgment of my Lord, I. O. Akeju, JCA I am bound to concur with his reasoning and to also dismiss this appeal. I shall add the following comments.
In the argument proffered by the learned Counsel to the appellant reference is made to the doctrine of privity of contract, namely, that Imaobong Missionary outreach was not a privy to the contract evidence in Exhibit ‘H’ of 01-11-1994 which is however not supported by Exhibit “Q” of 23-11-1995. I will draw attention to what Belgore, JSC (as he then was) said in Abusomwan v. Merchantile Bank of Nigeria Ltd. (1987) 2 NSCC 828 at 891 said concerning the doctrine of privity of contract to wit:
“The learned justices of the Court of Appeal were in error in construing into this special banking transaction the principle of privity of contract. While in few remaining cases, privity is still good law, the banking law and transactions are so vital to international maritime and commercial business that to apply principles of privity of contract would destroy initiative and sometimes make transactions impossible… The principle of privity of contract has been so watered down over the years by remoteness principle and practices of banking and international commerce, that our courts must hesitate before apply them.”
In my humble view I hesitate to apply the principles of privity of contract in this case because of the contents of Exhibit “Q”.
Exhibit “Q” of 23-11-1995 is clearly headed “compensation for surrendering of contract”. The exhibit shows that for surrendering the contract to Imaobong Missionary outreach to complete the project, the appellant was paid the sum of Two Hundred thousand Naira (N200, 000.00). This was in the presence of the appellant, his learned counsel, Imaobong outreach Missionary and the other parties as evidence in Exhibit “Q” already reproduced by my Lord in the lead judgment.
Compensation is remuneration and other benefits received in return for services rendered, especially salary or wages. In theory, compensation makes the injured person whole. By accepting the sum of N200, 000.00 for surrendering the contract to Imaobong Missionary Outreach, whatever, be the appellant’s injury was made whore. Appellant had the onus of proving he was entitled to any other sums that were due but not paid. That was not proved at the trial.
No oral evidence may be adduced to contradict, alter, add to or vary the contents of Exhibit “Q”. See section 128(1) of the Evidence Act, 2011; Union Bank of Nigeria Ltd. V. Sax (1994) 9 SCNJ 1; Union Bank of Nigeria Ltd. V. Ozigi (1994) 3 SCNJ 41 and Madumere v. Okafor (1996) 4 SCNJ 71.
On the failure of the Respondents to tender the valuation Report showing that the work done on the project amounted to N101,687.00 Naira, it is trite law that pleaded facts, upon which there is no oral or documentary evidence at the hearing are deemed abandoned. See Uwegba v. Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 305 at 317 and Balogun V. Amubikanhuan (1985) 5 NWLR (Pt.11) 27.
On the whole I also agree with my Lord that the appeal having failed is dismissed.
Appearances
Patrick UsenFor Appellant
AND
For Respondent
