ANAMBRA STATE GOVERNMENT & ANOR. v. GEMEX INTERNATIONAL LTD.
(2011)LCN/4249(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of January, 2011
CA/A/160/2008
RATIO
JURISDICTION OF THE COURT : WHAT DETERMINES THE JURISDICTION OF THE COURT
It is settled law that the claim of the Plaintiff determines the jurisdiction of the Court. See:– Erhumwunse vs. Ehanire (supra): – A.G. Anambra vs. A.G. Federation (supra). PER JIMI OLUKAYODE BADA, J.C.A.
JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA: SCOPE OF THE JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA
Section 257(1) of the 1999 Constitution provides as follows:- “Subject to the provisions of Section 251 and any other provision of this Constitution and in addition to such other Jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory Abuja shall have Jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.” PER JIMI OLUKAYODE BADA, J.C.A.
ORAL/DOCUMENTARY EVIDENCE : POSITION OF THE LAW WHERE THERE IS ORAL AS WELL AS DOCUMENTARY EVIDENCE
The Appellants have contended that there are material contradiction between the Respondent’s pleadings and its evidence. In this case, the crux of the matter borders mainly on documentary evidence and there are so many Exhibits, the last of which was Exhibit “P30”. The documents should therefore be used as a hanger with which to assess the oral testimony of witnesses. – In B. Stabilini & co. Ltd vs. Obasi (supra), it was held among others that:- “Where there is oral as well as documentary evidence, the later should be used as a hanger from which to assess oral evidence. A party is precluded from giving oral evidence of the contents of a document.” – Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR Part 77 Page 445; – Fashanu vs. Adekoya (1974) 6 S.C. Page 83″ See also the case of:- – Olujinle vs. Adeagbo (Supra). PER JIMI OLUKAYODE BADA, J.C.A.
AWARD OF GENERAL DAMAGES : WHETHER THE AWARD OF GENERAL DAMAGES IS AT THE DISCRETION OF THE COURT
On the issue of general damages, this is an award made at the discretion of the Court. See the following cases:– Nnadi vs. Okoro (1998) 1 NWLR Part 535 Page 573 at 607-608; – U.B.N. Ltd vs. Odusote Books Stores Ltd. (1995) 9 NWLR Part 421 at 558 at 585-586. PER JIMI OLUKAYODE BADA, J.C.A.
CONTRADICTORY EVIDENCE: WHETHER WHERE THERE ARE MATERIAL CONTRADICTIONS, THE COURT IS TO PICK AND CHOOSE BETWEEN THE CONTRADICTORY EVIDENCE COMING FROM THE SAME PARTY
Where there are material contradictions as pointed out by the learned trial Chief Judge, it is not for the Court to pick and choose between the contradictory evidence coming from the same party. PER JIMI OLUKAYODE BADA, J.C.A.
CONTRADICTORY EVIDENCE: ATTITUDE OF THE COURT WHERE THERE IS A CONTRADICTION IN RESPECT OF A MATERIAL FACT
It is settled that a contradiction in respect of a material fact would make a Court doubt the evidence. See the following cases:- – Abatan vs. Awudu (2005) 8 WRN Page 131; – Auta vs. Ibe (2003) 40 WRN Page 37 at 51. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. ANAMBRA STATE GOVERNMENT
2. ATTORNEY GENERAL OF ANAMBRA STATE Appellant(s)
AND
GEMEX INTERNATIONAL LTD. Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the leading Judgment): This is an appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/500102 delivered on the 17th day of October 2007.
The Respondent who was the Plaintiff by an action commenced at the lower Court claimed against the Appellants per paragraph 30 of its amended statement of claim as follows:-
“(i) A declaration that the termination or purported termination of the contract for construction of Anambra State Multi-Purpose Liason Office Complex Abuja between the Plaintiff and the First Defendant is wrongful;
(ii) The sum of N72,075,008.00 as agreed and certified by the First Defendant being the sum for the additional works done at the Anambra State Multi-Purpose Liason Office Complex, Abuja by the Plaintiff;
(iii) The sum of N6,276,400.00 (Six Million, Two Hundred and Seventy-Six Thousand, Four Hundred Naira only) per month from August 2002 until the date of Judgment, which sum represents loss of earnings on equipments still being detained by the Defendants despite the repeated demands made by the Plaintiff;
(iv) The sum of N40,579,600.00 (Forty Million Five Hundred and Seventy Nine Thousand, Six Hundred Naira) being the value of the equipments being detained by the Defendants or whatever the market value of same at the date of Judgment;
(v) The sum of N1,500,000.00 damages for breach of contract; and
(vi) Interest on the said sum at the rate of 10% before Judgment and thereafter 10% interest until the debt is liquidated.”
The 1st and 2nd Appellants who were 1st and 2nd Defendants at the lower Court filed a joint further amended statement of defence. The 1st Defendant/Appellant then counter claimed against the Plaintiff. The said
counter-claim without its particulars are as follows:-
“(a) A Declaration that the Plaintiff’s failure to complete and hand over the project, subject matter of this suit within the time stipulated by the contract instrument, that is within 48 months from October 1997 after receiving the full contract price from the 1st Defendant constitutes a breach of contract.
(b) A Declaration that the Plaintiff’s abandonment of execution of the contract, subject matter of this suit after receiving the full contract price from the 1st Defendant constitutes a breach of contract.
(c) The sum of N228,784,200.00 (Two Hundred and Twenty Eight Million, Seven Hundred and Thirty Four Thousand Two Hundred Naira) only being special damages suffered by the 1st Defendant by way of payment for the supply, installation and execution of jobs which money the Plaintiff fraudulently collected but failed to deliver as shown in paragraph 8 of Defendants further amended statement of defence, plus the sum of N14,000,000.00 being rent paid by the 1st Defendant for Laison Office accommodation in Abuja from 2002 to 2005 at the rate of N3.5 Million Naira only per annum.
(d) The sum of N916,648,000.00 (Nine Hundred and Sixteen Million, Six Hundred and Forty Eight Thousand Naira) only as loss of income.”
At the conclusion of hearing, the learned trial Chief Judge in a considered Judgment granted the claim of the Plaintiff in part and dismissed the counter-claim of the Defendants.
The 1st and 2nd Defendants now Appellants dissatisfied with the said Judgment appealed to this Court. The Plaintiff also cross-appealed against the portion of the Judgment refusing its claim for loss of use and value of its properties detained by the Defendants.
The learned Counsel for the Appellants formulated six (6) issues for determination set out as follows:-
(i) Did the High Court of FCT have jurisdiction to entertain the Respondent’s Suit, subject matter of this appeal (Ground 14).
(ii) Was the Respondent entitled to 14 days notice before the determination of the contract by the Appellants (Ground 1).
(iii) Was the determination of the contract by the Appellants wrongful (Grounds 2 and 3).
(iv) Was the original contract between 1st Appellant and the Respondent at anytime varied (Ground 4, 5, 8 and 11).
(v) Upon a calm consideration of the pleadings and the evidence led by the parties, is the award by the Court below to the Respondent of N72,075,008.00 as value of additional work done and N1,000,000.00 for breach of contract with 10% interest on the Judgment sum right (Grounds 6n 9 and 10).
(vi) Are the Appellants entitled to all or some of the claims contained in paragraph 10 of their counter claim (Grounds 7, 12, and 13).
The Learned Senior Counsel for the Respondent on the other hand formulated four issues for determination, they are set out as follows:-
(1) Whether the High Court of the Federal Capital Territory has jurisdiction to entertain the claim of the Plaintiff (Ground 14).
(2) Whether giving 14 days notice is a pre-requisite for the determination of the contract and whether in any event, Defendants were justified in terminating the contract? (Grounds 1, 2, 3, 4, 5, 7, 8, 11 and 14).
(3) Whether Plaintiff is entitled to the award made by the trial Court (Grounds 6, 9 and 10).
(4) Whether the trial Court was in error in dismissing the counter claim of the Defendant/Appellant (Grounds 7, 12 and 13).
At the hearing, learned Counsel for the Appellants referred to the Appellants’ brief filed on 9/7/08 and Appellants’ reply brief filed on 24/3/2010.
He adopted the two briefs of argument in urging that the appeal be allowed and to dismiss the cross appeal.
The Learned Senior Counsel for the Respondent/Cross Appellant also referred to Respondent’s brief of argument incorporating argument on cross appeal, it was filed on 11/3/2010. He also referred to cross Appellant’s reply brief deemed filed on 2/11/2010.
He adopted the two briefs of argument in urging that the appeal be dismissed and the cross/appeal allowed.
I have carefully examined the issues formulated for determination on behalf of the parties in this appeal and it is my view that the issues as formulated by Counsel for the Respondent encapsulates the issues formulated on behalf of the Appellants. I will therefore rely on the issues as set out in the Respondent’s brief of argument in the determination of this appeal because it would settle the issues in controversy between the parties.
ISSUE NO.1
Whether the High Court of the Federal Capital Territory has jurisdiction to entertain the claim of the Plaintiff (Ground 14).
The learned Counsel for the Appellants submitted that the lower Court lacked jurisdiction to entertain the Suit. He argued that Nigeria practices a Federal System of Government. He went further that each of the Federating States is autonomous and free from direction by another state.
He relied on Section 2(2) of the 1999 Constitution of the Federal Republic of Nigeria.
– Nwabueze: The Presidential Constitution of Nigeria Pages 39-42;
– A.G. Lagos States vs. A. G. Abia State (2003) WRN Page 1 at 100.
He submitted that under the said Constitution no State can exercise judicial powers over another State Government. He went further that pursuant to Section 299 of the 1999 Constitution, the Federal Capital Territory is just like the other states of the Federation.
He relied on the case of:-
– Okoyode vs. F.C.D.A. (2005) 27 WRN Page 97 at 127 line 35 Page 128 line 30.
He submitted that the lower Court was in error when it held that FCT High Court is a Federal Court and accordingly upheld jurisdiction of the High Court of the Federal Capital Territory. He went further in his submissions that the High Court of the Federal Capital Territory lacks jurisdiction over the Anambra State Government in any subject matter including contracts. He said that Order 9 rule 3 of the FGT High Court Civil Procedure Rules 2004 does not confer jurisdiction on the Court. He relied on the following cases:-
– International Nigerbuild Constr. Coy vs. Giwa (2003) 13 NWLR Part 836 Page 69 at 98-99 H-D;
– Dalhatu vs Turaki (2003) 42 WRN Page 15 at 37-38.
It was also submitted that in all matters the only Courts that have jurisdiction over the Anambra State Government under the 1999 Constitution are the Courts of Anambra State and the appropriate Federal Courts as the case may be. He relied on the case of:-
– Dalhatu vs. Turaki (Supra).
The learned Senior Counsel for the Respondent submitted on this issue that it is the Plaintiffs claim that determines the Jurisdiction of the Court. He relied on the following cases:-
– Erhumwunse vs. Ehanire (2003) 13 NWLR Part 837 Page 353 at 377:
– A.G. Anambra vs. A.G. Federation (1993) 6 NWLR Part 302 Page 692.
He then referred to the Plaintiffs claim and stated that the subject matter of the contract is in Abuja. And he submitted that the High Court of the Federal Capital Territory is the appropriate Court to file the Plaintiff’s case.
He urged this Court to resolve this issue against the Appellant.
The learned Counsel for the Appellants restated the view earlier canvassed in the Appellants’ brief of argument in the Appellants’ reply brief.
The contention of the Appellants on this issue is that the High Court of the Federal Capital Territory lacks the jurisdiction to entertain this case.
It is settled law that the claim of the Plaintiff determines the jurisdiction of the Court.
See:-
– Erhumwunse vs. Ehanire (supra):
– A.G. Anambra vs. A.G. Federation (supra).
Section 257(1) of the 1999 Constitution provides as follows:-
“Subject to the provisions of Section 251 and any other provision of this Constitution and in addition to such other Jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory Abuja shall have Jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
A careful examination of the Plaintiffs claim would reveal that it is for the determination of a civil right between it and the Defendants. The contract that gave rise to the claim of the Plaintiff was for the “Construction of the Anambra State Multi-Purpose Liason Office Complex Abuja”
The subject matter of the contract is in Abuja.
In view of the foregoing the High Court of the Federal Capital Territory Abuja is the appropriate Court for the Plaintiff to file his case. The lower Court was right when it assumed Jurisdiction over the Plaintiffs claim.
This issue is therefore resolved in favour of the Respondent against the Appellants.
ISSUE NO.2
Whether giving 14 days notice is a pre-requisite for the determination of the contract and whether in any event, Defendants were justified in terminating the contract? (Grounds 1, 2, 3, 4, 5, 7, 8, 11 and 14).
The learned Counsel for the Appellants referred to paragraph 10 of the amended statement of claim which states that:-
“It was also the term of the contract that same can only be determined by a party after giving 14 days notice in writing of intention to determine the contract”
He submitted that in order to resolve this issue it would be necessary to examine Exhibit “P1” vis-a-vis the pleadings and evidence. He went further that under clause 14 of Exhibit “P1”, 14 days notice of intention to determine the contract could only be given if the contract was determined under paragraph 10. It was further submitted on behalf of the Appellants that the contract was determined under paragraph 13 of the contract instrument on the ground that the Respondent had abandoned the project after receiving the full contract sum. He referred to Exhibit “P5”.
He submitted that Exhibit “P1” does not stipulate that notice be given to the other party before the contract could be determined under paragraph 13.
The learned Senior Counsel for the Respondent in his own submission stated that ordinarily, the Courts do not make agreement contract for the parties but it is to interpret the agreement of the parties.
He relied on the case of:-
– Opia vs. Ibru (1992) 2 NWLR Part 231 Page 658 at 674.
He stated that the Plaintiff in proving his case tendered in evidence Exhibit “P1” which is the contract document. He contended that by Exhibit “P1” the Plaintiff is entitled to 14 days notice before the contract could be determined. But that the Defendants/Appellants did not comply with the said requirement.
He also referred to paragraph 10 of Exhibit “P1” which he said has no nexus with the determination of contract.
It was also submitted on behalf of the Respondent that if the document i.e. Exhibit “P1″ is taken as a whole it would be seen that the requirement of the 14 days notice as contained in paragraph 14, can only be in relation to paragraph 13 of the said Exhibit ‘P1”.
The learned Senior Counsel for the Respondent also referred to paragraph 10 of the amended statement of claim on page 20 of the Record of Appeal and the evidence given in support of the averment on page 65 of the record. He submitted that the evidence was not challenged or contradicted and that it should be taken as the correct position of things.
He relied on the following cases:-
– Owners MV Gongola Hope vs. S.C. (Nig) Ltd. (2007) 15 NWLR Part 1056 Page 189, 219-216:
– Obmiami Brick & Stone Nig. Ltd. vs. A.C.B. Ltd. (1992) 3 NWLR Part 229 Page 260 at 294;
– Inakoju vs. Adeleke (2007) 1 NWLR Part 1025 Page 423 at 607.
In order to arrive at a reasonable conclusion on this issue, it would be necessary to examine carefully the contract document Exhibit “P1” and Exhibit “P5” which is the letter by which the contract was determined.
The following paragraphs of Exhibit “P1” must be examined carefully i.e. 10, 13 and 14.
“Paragraph 10
The Employer shall be surcharged at anytime the Employer defaults in payment as stipulated in this agreement and the prevailing Central Bank of Nigeria Commercial rate will be used in determining the extent of damages suffered by the contractor provided the contractor does not contribute to the set back.”
“Paragraph 13
This Deed may be determined by the Employer if the contractor
(a) Wholly abandons the construction of the complex before completion, provided that the Employer did not contribute to the abandonment of the project either by way of delay or default in making payments as stated in the schedule of payment or is not in breach of any of the clauses.
(b) Fails to proceed with the construction and completion of the complex with reasonable diligence.
(c) Being a Company, enters into liquidation.”
“Paragraph 14
A party hereto may determine this agreement under paragraph 10, by giving to the other 14 days notice in writing of its intention so to do.”
The pertinent question now is – Was the Defendants/Appellants obliged to give 14 days notice as provided for in paragraph 14 of Exhibit “P1” quoted above?
It has been contended by the Appellants that paragraph 14 of Exhibit “P1″ can only come into play if the determination was done under paragraph 10.
It is necessary at this juncture to read Exhibit ”P1″ and in particular paragraphs 10, 13 and 14 set out above together because it is now settled that where the words of a statute are clear and unambiguous, they should be given their plain and ordinary meanings and are not subject to any other interpretation except where this would lead to a manifest absurdly or injustice.
See – Olanrewaju vs. Governor of Oyo State (1992) 9 NWLR Part 265 Page 335 at 360.
A careful reading of the entire Exhibit “P1” would reveal that paragraph 10 has no nexus with the determination of contract. The inclusion of “paragraph 10” in paragraph 14 is in my view a typographical error and it has rendered the said paragraph 14 meaningless.
If Exhibit “P1” is read as a whole, it would be clear that the requirement of 14 days notice as contained in paragraph 14 can only be in relation to paragraph 13 of Exhibit “P1”. In view of the foregoing my conclusion is that the Plaintiff/Respondent is entitled to 14 days notice before the contract can be determined and no such notice was given.
The next question to be answered is – Were the Defendants justified in terminating the contract?
The learned Counsel for the Appellants referred to paragraphs 4, 5, 6, 7, 13 and 17 of the further Amended Statement of Defence contained on pages 36-38 of the record. It was the contention of the Appellants that the Respondent had abandoned the project under consideration even though it had received the full payment for the contract.
The Appellants also referred to the Evidence of DW1, Chief Donatus Okeke (of blessed memory) on pages 159 line 9 to page 163 lines 3.
He submitted that the evidence of DW1 was not controverted and that it ought to have been acted upon by the lower Court. He relied on the case of:-
– Oyediran vs. Oyewumi (2003) 32 WRN Page 60 at 79 line 25.
He submitted that there are pieces of evidence from the Respondent which supported the Appellants’ case, for instance the evidence of PW1 where it was admitted that the Respondent received the full contract sum but failed to complete the execution of the contract.
He stated that the material contradiction between Respondent’s pleadings and its evidence is sufficient to collapse its case. He relied on the following cases:-
– G.F.A.I.E. Ltd. vs. Yesufu (2003) 25 WRN Page 67 at 78 line 30;
– Auta vs. Ibe (2003) 40 WRN Page 37 at 51 lines 25-30:
– Ezemba vs. Ibeneme (2004) 40 WRN Page 1 at 27 lines 35-40.
On the issue of variation of the contract, learned Counsel for the Appellants submitted that not only did the contract instrument Exhibit “P1” expressly excluded variation, but also that the Respondent through PW1 and PW4 admitted that the original contract was never varied. It was also pointed out that the Respondent’s evidence on this issue was materially contradictory to its pleadings.
It was submitted on behalf of the Appellants that parties are bound by the terms of a written contract. It was stated that the contract instrument expressly excluded variation. And the term is binding on the parties. He relied on the case of:-
– Owoniniboys Tech vs. UBN (2003) 40 WRN Page 1.
He also submitted that the lower Court wrongly applied the provisions of Section 132 of the Evidence Act to hold that there was a subsequent oral agreement to vary Exhibit “P1”. He went further that the contract instrument expressly excluded variation.
It was further submitted on behalf of the Appellants that the Court below made wrong use of Exhibits “P19”, “P26”, “P27”, “P28” and “P29”. This according to Counsel is because the said Exhibits are not admissible in evidence for failure to comply with the provisions of Section 111 of the Evidence Act. He relied on the following cases:-
– GTB PLC vs. Tabik Invt Ltd. (2005) 13 WRN Page 25 at 37;
– Thompson vs. Arowolo (2003) 24 WRN Page 1 at 43 line 25-40.
He stated that if the Court is minded to accept the said Exhibits “P19”, “P26”, “P27”, “P28” and “P29”, his submission on it was that the documents are not evidence of variation of contract. And that they are all internal memoranda. He went further that the documents could not prove that the original contract was varied even when “PW1” and “PW4” admitted that it was varied. He relied on the case of:-
– Omega Bank Plc vs. O.B.C. Ltd. (2006) 4 WRN at Page 33 lines 20-40.
He finally prayed that this issue be resolved in favour of the Appellants.
In his response, the learned Senior Counsel for the Respondent submitted that the case of the Plaintiff/Respondent is that Exhibit “P1” alone did not regulate the rights and obligation of the parties. He referred to paragraph 4 of the amended statement of claim and Exhibits “P2”, “P4” and “P19” to show that the parties agreed on additional work to be done for which the Plaintiff was entitled to payment.
On the issue of contradictions in the evidence of “PW1”, he stated that the Appellants have not shown in what way the contradiction was material. He went further that the rights and obligations of the parties in this case are determined on the basis of documentary evidence hence the contradictions are rendered inconsequential. He relied on the following cases of:-
– Olujinle vs. Adeagbo (1988) 2 NWLR Part 75 at 238;
– B. Stabilini & Co. Ltd. vs. Obasi (1997) 9 NWLR Part 520 Page 293.
The learned Senior Counsel for the Respondent referred to Exhibit “P5” paragraph (e) and submitted that the documentary evidence on record did not support the reason given in Exhibit “P5” paragraph (e).
He also referred to the argument of the Appellants’ Counsel that Exhibits “P19”, “P26”, “P27”, “P28” and “P29”, were not properly certified in that no payment was made for the certification.
He submitted that the question whether or not payments were made is a matter of evidence. He argued that he Appellants have not called any witness to give evidence to the effect that payments were not made.
He finally urged that this issue should be resolved in favour of the Respondent.
The contention of the Appellants was that the Respondent had abandoned the project given though he had received the full payment for the contract. Reference was made to the evidence of DW1, Chief Donatus Okeke (of blessed memory) See pages 159 line 9 to 163 line 3.
It is true that by Exhibit “P1” there shall be no variation in the contract, but Exhibit “P1” alone did not regulate the rights and obligations of the parties. The parties agreed on additional work to be done in addition to obligation created under Exhibit “P1”. By paragraph 4 of the amended statement of claim, it was pleaded thus:-
“The said contract proceeded smoothly thereafter until; it was modified by both parties when the 1st Defendant requested for additional works on the project amounting to over N110,179,661.60 sometime in July 2000 and ………………………” (See Page 19 of the Record).
In prove of the above averment the Plaintiff/Respondent tendered Exhibits “P2”, “P4” and “P19”.
The above mentioned Exhibits showed that parties agreed on additional work to be done for which the Plaintiff was entitled to payment.
These Exhibits i.e. “P2”, “P4” and “P19” have modified the earlier position in Exhibit “P1”.
The Appellants have contended that there are material contradiction between the Respondent’s pleadings and its evidence.
In this case, the crux of the matter borders mainly on documentary evidence and there are so many Exhibits, the last of which was Exhibit “P30”.
The documents should therefore be used as a hanger with which to assess the oral testimony of witnesses.
– In B. Stabilini & co. Ltd vs. Obasi (supra), it was held among others that:-
“Where there is oral as well as documentary evidence, the later should be used as a hanger from which to assess oral evidence. A party is precluded from giving oral evidence of the contents of a document.”
– Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR Part 77 Page 445;
– Fashanu vs. Adekoya (1974) 6 S.C. Page 83″
See also the case of:-
– Olujinle vs. Adeagbo (Supra).
As I said earlier, in this Judgment Exhibits “P2”, “P4” and “P19” have modified the earlier position of the parties in “P1”.
In Exhibit “P19” the Defendants/Applicants wrote thus:-
“The initial contract that was signed with the contractor did not allow for any variation/fluctuation and so no variation/fluctuation was entertained till date. Work at the site is at a very slow pace and the contractor has achieved about 85% completion. This Ministry has put so many factors in consideration and has decided to put a human face to the project by allowing the submission of variation/fluctuation claim by the contractor so as to bring the project to a conclusive end ………………………………”
Also Exhibit “P4” from the Defendants/Appellants showed that as at 30th January 2002, the Plaintiff/Respondent was entitled to the sum of N72,075,008.00 from the Defendants.
As stated above, Exhibit “P19” showed that 85% of the contract had been done.
The question that comes to my mind is if as at 30/1/2002 the Plaintiff/Respondent had done 85% of the contract and the Defendants/Appellants were owing it over N72 Million Naira, would the Defendants be justified to issue Exhibit “P5” which determined the contract on the ground that-
(a) Time to complete the contract had lapsed;
(b) The Plaintiff had abandoned site
My answer to the question is No, this is because the actions of the Defendants/Appellants in Exhibit “P5” is a violation of paragraph 13(a) of Exhibit “P1” which provides
“Paragraph 13
This Deed may be determined by the Employer if the contractor:-
(a) Wholly abandons the construction of the complex before completion, provided that the Employer did not contribute to the abandonment of the project either by way of delay or default in making payments as stated in the schedule of payment or is not in breach of any of the clauses.”
As could be gathered from Exhibits “P4” and “P19”, it was the Defendants/Appellants who defaulted in paying the Plaintiff/Respondent the monies due to it.
The conclusion to be drawn here is that the Defendants were in breach of paragraph 13 of Exhibit “P1′, therefore the determination of the contract was wrongful.
It was also argued on behalf of the Appellants that Exhibits “P19”, “P26”,
“P27”, “P28” and “P29”, were not properly certified because no payment was made for certification.
The solution to the above contention could be found in Section 111(1) of the Evidence Act which provides thus:-
“Every public officer having the custody of a public document which any person has right to inspect shall give the person on demand a copy of it on payment of legal fees together, with a certificate written at the foot of such copy that it is a true copy or such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.”
As could be seen from Section 111(1) of the Evidence Act once a copy of a public document shows on the face of it the following, it shall be received in evidence as proof of the contents of the document.
(i) That legal fees have been paid;
(ii) That there is a certified copy of the original document;
(iii) That the certificate mentioned above has been subscribed and dated showing the official title of the officer;
(iv) And sealed in cases in which the official is entitled by law to use a seal.
I have carefully gone through the documents i.e. Exhibits “P19”, “P26”, “P27”, “P28” and “P29”, I did not see any of them which shows on the face of it that legal fees had been paid, but all other criteria were met.
Apart from that, there is nothing on record to show that the Counsel for the Appellants objected to the admissibility of the documents.
It is therefore my view that since learned Counsel for the Appellants did not raise objection to the admission of the documents at the trial, he cannot be allowed to raise an objection at the appeal stage since the documents were not absolutely legally inadmissible.
See the case of:-
– Shittu vs. Fasawe (2005) 7 S.C. Part II Page 107 at 118.
Furthermore, it could also be presumed that necessary fees were paid pursuant to Section 150(1) of the Evidence Act before the documents were stamped.Consequent upon the foregoing, it is my view that the determination of the contract in this case by the Defendants/Appellants is unjustifiable.
This issue is therefore resolved in favour of the Respondent and against the Defendants/Appellants.
ISSUE NO.3
Whether Plaintiff is entitled to the award made by the trial Court (Grounds 6, 9 and 10).
The learned counsel for the Appellants submitted that the award by the lower Court of N72,075,008.00 as value of additional work done and N1,000,000.00 for breach of contract with 10% interest on the Judgment sum to the Respondent is wrong and liable to be set aside.
He went further that the claim bothers on a claim for special damages and the Respondent must succeed on the strength of its own case and not on the weakness of the defence. He relied on the case of:-
– Owoniboys Tech vs. UBN (Supra).
It was further argued that for the Respondent to succeed on this claim it ought to have pleaded strictly with particulars and lead evidence specially on the item of additional work done and their prices giving rise to the total sum claimed.
He relied on the case of:-
– Nwanji vs. Coastal Services Nig. Ltd. (2004) 36 WRN Page 1 at 13.
He also referred to paragraphs 4 and 5 of the Amended Statement of Claim and part of the testimony of the PW1 made on 19/2/2004. See page 69 of the Record.
He argued that the Respondent led evidence at variance with its pleadings. He submitted that this head of claims should therefore fail.
He relied on the following cases:-
– G.F.A.I.E Ltd. vs. Yusufu (Supra);
– S.B.N. Plc. vs. Opanubi (2004) 38 WRN Page 1 at 29 lines 5-29.
He urged that this issue be resolved in favour of the Appellants.
In his response, the learned Senior Counsel for the Respondent submitted that the Plaintiff/Respondent did not claim N72,075,008.00 as damages whether general or special. Rather the Plaintiff/Respondent formulated its claim on the basis of entitlement to that issue of money as being due to it.
He urged this Court to discountenance the submissions and authorities cited by the Appellants on the issue or question of special damages as they are irrelevant to the question of the propriety of the award of N72,075,008.00 made by the trial Court.
I have carefully examined the claim of the Plaintiff/Respondent as set out earlier in this Judgment. The Plaintiff did not claim N72,075,008.00 as damages whether general or special. The sum claimed in my view was more of a debt due to the Plaintiff on the work it had done.
The pertinent question at this juncture is, are there materials before the Court to justify the award of N72,075,008.00 made in favour of the Plaintiff?
In this case there are a number of Exhibits amongst which is Exhibit “P2” which is a letter from the Executive Director, Gemex International Limited addressed to the Executive Governor of Anambra State on additional works at the Anambra State Multi-Purpose Liason Office Complex Abuja. The letter was dated 12/9/2000. There is also Exhibit “P4” which is the payment Certificate dated 30/1/2002 for the amount to be paid which was fixed at N72,075,008.00, Exhibit “P19” was a memorandum sent to His Excellency, The Governor of Anambra State by the Commissioner for Housing and Environment for the approval of the variation/fluctuation sum of N110,179,661.60 to enable the contractor complete the project.
Exhibits “P27″ and”P28” are in respect of construction of Anambra State Multi-Purpose Liason Office Complex Abuja – Variation for completion.
The said Exhibits “P4”, “P19”, “P27” and “P28” are admission of the fact that additional jobs were carried out.
The above mentioned documents have shown that the sum of N72,075,008.00 was due to the Plaintiff. The lower Court was therefore in order when it awarded the said sum.
On the issue of general damages, this is an award made at the discretion of the Court.
See the following cases:-
– Nnadi vs. Okoro (1998) 1 NWLR Part 535 Page 573 at 607-608;
– U.B.N. Ltd vs. Odusote Books Stores Ltd. (1995) 9 NWLR Part 421 at 558 at 585-586.
It was held earlier in this Judgment that the determination of the contract was not done in compliance with paragraph 13 of Exhibit “P1”, the determination was declared wrongful. Therefore the Plaintiff/Respondent is entitled to damages for wrongful termination of the contract.
Concerning the award of 10% interest on the Judgment sum, it is my view that there is provision for this under Order 40 Rule 7 of the Federal Capital Territory Civil Procedure Rules 1989. The award was therefore in order.
This issue is also resolved in favour of the Respondent and against the Appellants.
ISSUE NO.4
Whether the trial Court was in error in dismissing the counter claim of the Defendant/Appellant (Grounds 7, 12 and 13).
The learned Counsel for the Appellants referred to paragraph 10 of the Appellants’ counter-claim.
He submitted that the Appellants through the evidence of DW1 and DW2 led sufficient evidence in proof of their counter claim. However, the lower Court dismissed Appellants’ counter claim upon the premises that the Appellants contributed to the delay in the Respondent not completing the execution of the contract within the stipulated time.
He referred to the evidence of PW1 on pages 69 lines 6-11, 70 lines 15-17. And he submitted that the Appellants are entitled to the benefit of the Respondents admission against interest.
He finally urged that this issue be resolved in favour of the Appellants.
In his response, the Learned Senior Counsel for the Respondent adopted his arguments on issues 2 and 3.
He submitted that the conclusion drawn from the documentary evidence tendered from the Appellants is that the Plaintiff had completed over 85% of the contract job, and that the Defendants/Appellants were still owing the Plaintiff over N72 Million.
He also referred to the Evidence of DW1 whom he stated admitted that he is not an Engineer having read Political Science, and DW2 an Architect with Ministry of Works, Housing and Transport for Anambra State.
He submitted that DW1 and DW2 not being Quantity Surveyors cannot give evidence on this issue.
He urged that this issue be resolved in favour of the Respondent.
For ease of reference, the counter claim was set out at the beginning of this Judgment.
In the course of this Judgment it was held that that the Defendants/Counter-Claimants were the ones in breach of the contractual relationship.
It is clear from the Exhibits before the Court, in particular “P4” and “P19” that the Plaintiff/Respondent had completed 85% of the contract job and the Defendants/Counter Claimants were owing over N72 Million.
At the risk of repeating myself, it is my view that the conduct of Defendants/Counter Claimants is a clear negation of provisions of paragraph 13 of Exhibit “P1′.
The counter claim is a separate claim, in order to succeed the Defendants/Counter Claimants must adduce cogent evidence to entitle them to the declarations and orders sought. The Counter Claimants must succeed on the strength of their own case.
The counter claimants by paragraph 10(c) of the counter claim asked for N228,734,200.00 as special damages suffered by 1st Defendant by way of payment for the supply, installation and execution of jobs which money the Plaintiff fraudulently collected but failed to deliver.
It should be noted that that the allegation above is an allegation embedded in crime which must be proved beyond reasonable doubt.
See:-
– Millar vs. The State (1985) 3 NWLR Part 11 Page 190.
The issue of fraud was not proved beyond reasonable doubt and it was held earlier in this Judgment that it was the Defendants/Counter Claimants that breached the contractual relationship. The claim is therefore not sustainable.
Concerning the issue of N14 Million claim for the rent paid for office accommodation between 2002-2005 and N3.5 Million yearly rent, there is no cogent evidence on how the claim was arrived at. This is special damages which must be pleaded, particularized and strictly proved.
See – Gege vs. Nande (2006) 10 NWLR Part 988 Page 256 at 278-288.
The Counter-Claimant also claimed loss of earning of N916,648,000.00. The relevant evidence here would have been that of an Estate Valuer on the anticipated income. The evidence of DW1 and DW2 are therefore not credible in that respect.
It was contended on behalf of the Appellants/counter claimants that new contractor handling the project has made improvements thereon but he was not called to give evidence. It is my view that the failure to call the said contractor is fatal to the case of the Counter Claimants.
In conclusion, it is my view that the counter-claim lacks merit and it was properly dismissed by the lower Court.
This issue is also resolved in favour of the Respondent and against the Appellant.
In the final analysis, having resolved all the four issues in this appeal against the Appellants, this appeal lacks merit and it is hereby dismissed.
The Respondent is entitled to costs which is fixed at N50,000.00 (Fifty Thousand Naira) against the Appellants jointly and severally.
CROSS APPEAL
This is a Cross Appeal against part of the Judgment of the High Court of Federal Capital Territory Abuja delivered on 17th day of October 2007 in Suit No-FCT/HC/CV/500/02.
This action was commenced at the lower court by the Plaintiff/Cross Appellant in which it claimed as follows:-
“(i) A declaration that the termination or purported termination of the contract for construction of Anambra State Multi-Purpose Liason Office Complex Abuja between the Plaintiff and the First Defendant is wrongful;
(ii) The sum of N72,075,008.00 as agreed and certified by the First Defendant being the sum for the additional works done at the Anambra State Multi-Purpose Liason Office Complex, Abuja by the Plaintiff;
(iii) The sum of N6,276,400.00 (Six Million Two Hundred and Seventy-six Thousand, Four Hundred Naira only) per month from August 2002 until the date of Judgment, which sum represents loss of earnings on equipments still being detained by the Defendants despite the repeated demands made by the Plaintiff;
(iv) The sum of N40,579,600.00 (Forty Million Five Hundred and Seventy Nine Thousand, Six Hundred Naira) being the value of the equipments being detained by the Defendants or whatever the market value of same at the date of Judgment;
(v) The sum of N1,500,000.00 damages for breach of contract; and
(vi) Interest on the said sum at the rate of 10% before Judgment and thereafter 10% interest until the debt is liquidated.”
At the conclusion of hearing the lower Court granted reliefs Nos. 1, 2, 5 and 6 and refused reliefs 3 and 4.
It was as a result of the refusal of the lower court to grant reliefs 3 and 4 that made the Plaintiff to file this Cross Appeal.
The learned Counsel for the Plaintiff/Cross Appellant formulated a lone issue for determination as follows:-
“Whether the trial Court was right in dismissing the claim of loss of earning and value of equipment, the Plaintiff claimed it left on the site.”
The learned counsel for the cross Respondent adopted the lone issue formulated by the Counsel for the Cross Appellant.
Learned Counsel for the Cross Appellant referred to paragraphs 23-25 of the Amended Statement of Claim where it was pleaded that apart from being a construction outfit it was engaged in the business of leasing out equipments. He also referred to the evidence of “PW1”, “PW2”, “PW3” and “PW4” as to the items on the site and the rental value of those items.
It was stated that the Defendants/cross Respondents did not cross-examine the witnesses on the evidence they gave concerning the items which the Plaintiff/Cross Appellant claimed were in site.
He submitted that, it is settled law that, where the evidence of a witness is unchallenged, it is a credible evidence which the court ought to rely on.
He relied on the cases of:-
– Okiki vs. L.P.D.C. (2005) 15 NWLR Part 949 at 471;
– Ejiogu vs. NDIC (2001) 3 NWLR Part 699 Page 1 at 10.
He also pointed out that the Defendants/Cross Respondents did not lead evidence to show that the items were not worth what the Plaintiff/Cross Appellant claimed they worth.
It was submitted that the reasoning of the learned trial Chief Judge is erroneous because the Plaintiff did not show in its pleading that the equipments were hired out at a uniformed price. He urged that the learned trial Chief Judge should have used and evaluated the evidence of PW1 and see whether the evidence is cogent enough to warrant the grant of the claim for loss of earning.
He submitted that except in situation in which the law has expressly provided for number of witnesses to give evidence in prove of a matter, there is no law that says in other matters, evidence of one credible witness cannot prove a case.
He relied on the following cases:-
– Agbi vs. Ogbeh (2006) 11 NWLR Part 990 Page 65 at 125 Paragraph G;
– Okike vs. L.P.D.C. (Supra).
On the claim for the value of the items he argued that both PW1 and PW4 gave unchallenged evidence that they left the said items on the site as pleaded in paragraph 14 of the Amended statement of claim and that they have not been allowed to retrieve the items despite repeated demands.
He stated that the only evidence concerning the items left on site was the evidence of DW1. He argued that DW1 is not the site Engineer and he did not say he was at the site at the material time.
He submitted that the trial chief Judge ought to have preferred the evidence of PW1 and PW4 to that of DW1.
He finally submitted that it is not the number of witnesses called that matters. Rather it is the quality of their evidence. He went further that since Plaintiff’s evidence as to what it has on site remained unchallenged, it is most unnecessary to call the operators of the equipments.
He urged that this issue be resolved in favour of the Cross-Appellant.
The learned Counsel for the Cross Respondents submitted that the lower Court was perfectly in order when it dismissed the Respondent’s claim of loss of earning and value of the equipments left on site.
He submitted that the Appellants’ case that the Respondent had long abandoned site was not impugned. He referred to the evidence of DW1 and he submitted that the evidence of DW1 ought to be acted upon.
It was further submitted on behalf of the cross Respondents that assuming without conceding that the Respondent had any equipment on site, there is much material inconsistencies in the evidence of the Respondent/Cross Appellant’s witnesses on the value and earnings accruable from leasing of equipments and this is sufficient to make the Respondent/Cross Appellant’s case collapse. He relied on the case of:-
– G.F.A.I.E. vs. Yusufu (2003) 25 WRN Page 67 at 78 line 30.
He finally submitted that the Respondent/Cross Appellant did not establish by credible evidence that it had equipments on site. He went further that the Court below was therefore right in dismissing the Respondent/Cross Appellant’s claim of loss of earning and value of equipments.
In its reply brief of argument the Respondent/Cross Appellant stated that DW1 never claimed to be on site at all time material for him to testify that Cross Appellant abandoned site.
Learned senior counsel for the cross Appellant referred to the evidence of the DW1 under Cross examination when he said “personally he was not the one who brought Police into the site.”
He also re-iterated his earlier submissions on Exhibits P2, P4, P19, P27 and P28.
He finally submitted that there was no inhibition in the way of the lower Court from relying on the evidence of PW1, PW2, PW3 and PW4 as to the items on site and the material value of those items.
He therefore urged that this issue be resolved in favour of the Cross Appellant and allow the Cross Appeal.
The pertinent question here is that was the lower Court right in dismissing the claim of loss of earning and value of equipment which the Plaintiff claimed it left on the site?
The reason for the dismissal of the claim by the learned trial chief Judge was captured on at page 417-419 of the Record of Appeal as follows:-
“It is pertinent to note that PW1 during his testimony stated inter alia that they leased out a crane for N75,000 a day. But PW2 testified that a dumper goes for N35,000 in 2001-2004 but now N45,000.00 per day, a crane is being leased for N75,000 per day but now N85,000 per day, scaffolding N20,000 a day, dumper N10,000 a day while a KVA Generator at N8,000 but now N10,000 per day.
While PW1 put the cost of hiring or leasing a dumper at N10,000 per day, PW2 put the cost per day at N35,000 in 2001-2004 but now N45,000.00 per day while the PW1 put the cost of leasing out a KVA Generator at N15,000 per day, PW2 stated that it cost N8,000 but now N10,000 per day. PW3 gave a different estimate of hiring these equipments per day from those given by the PW1 and PW2 categorically, the PW3 stated that the cost of leasing a dumper is N10,000 but now N25,000 while a crane goes for N60,000 per day but now N90,000.
These clearly show some contradictions in the testimonies of these witnesses regarding the cost of leasing the equipments.
In the case of:-
Ahmed vs. State (1999) 7 NWLR Part 612 Page 641 at 672 Paragraphs D-E the Supreme Court held that:-
“Where there are contradictions in the evidence of prosecution witnesses on a material fact, such contradictions ought to be explained by evidence by the prosecution. In the absence of such explanation by the prosecution, the Court cannot and shall not speculate on an imagined explanation to choose which of the prosecution witnesses to believe.”
See also the case of:-
– Ezembe vs. Ibeneme (Supra) Pages 50.51 lines 15-25.
The contradictions in the evidence by the PW1, PW2 and PW3 on the cost of leasing the equipments in question are so material that they cast grave doubts on this claim of the Plaintiff, since the cost of leasing these equipments is a material issue which cannot be dismissed with the wave of the hand as far as this claim of the Plaintiff is concerned.
It is my view that these contradictions render the evidence of the PW1 on the cost of hiring the remaining items given in paragraph 24 of the Amended Statement of claim and listed by the PW1 such as the Peugeot 505 Car, the Volkswagen Car, the Station Wagon, the cost of leasing the Ceiling fan and so on unworthy of being believed since no evidence is led by the other witnesses on these items. Even the evidence of PW4 is silent on these items. The Plaintiff has not, in my view led sufficient evidence on this head of claim.”
The learned Senior Counsel for the Respondent/Cross Appellant contended that the learned trial Chief Judge ought to have evaluated the evidence of PW1 and see whether it is cogent enough to warrant the grant of the claim for loss of earning.
It is clear from the record that the Respondent/Cross Appellant presented the evidence of PW1, PW2, PW3 and PW4.
It is my view that the evidence of PW1 cannot be taken in isolation. The approach of the learned trial Chief Judge is correct. In evaluating evidence, the Court ought to consider and evaluate the evidence of all the witnesses called by a party on a particular point.
Where there are material contradictions as pointed out by the learned trial Chief Judge, it is not for the Court to pick and choose between the contradictory evidence coming from the same party.
It is settled that a contradiction in respect of a material fact would make a Court doubt the evidence.
See the following cases:-
– Abatan vs. Awudu (2005) 8 WRN Page 131;
– Auta vs. Ibe (2003) 40 WRN Page 37 at 51.
It is my view that the Respondent/Cross Appellant did not by credible evidence establish that it had equipments on the site and with the contradictory evidence given by PW1, PW2 and PW3 the learned trial Chief Judge was right in dismissing the Respondent/Cross Appellant’s claim.
This issue is therefore resolved in favour of the cross Respondent against the Cross Appellant.
In the final analysis, the cross Appeal fails and it is hereby dismissed.
The Cross Respondents are entitled to costs which is fixed at N30,000.00 against the Cross Appellant.
MOHAMMED LAWAL GARBA, J.C.A: A draft of the lead judgment written by my learned brother BADA, JCA was read by me before now. His Lordship has adequately and very ably considered and resolved the issues that call for determination in both the appeal and the cross appeal. The views expressed on all the issues accord with the position of the law on them and I entirely agree with them.
For the reasons contained in the lead judgment, I too find no merit in both the appeal and the cross appeal and join in dismissing them.
I adopt the order on costs made in the lead judgment.
REGINA OBIAGELI NWODO, J.C.A: I have been privileged to read in draft the Judgment of my learned brother BADA, JCA just delivered.
His Lordship had dealt extensively with the issues raised for determination. I will just emphasize that parties once they have embodied the terms of their agreement or contract in a written document are bound by the terms contained therein. The terms of the contract in this case were explicit, therefore its determination was wrong.
For the above and the detailed reasons contained in the lead Judgment, I agree that this Appeal lacks merit and is hereby dismissed. I abide by the order as to cost. I also for the reasons contained in the lead Judgment hold that the Cross Appeal is devoid of merit and same is dismissed. I award cost of N30,000.00 against the Cross Appellant.
Appearances
JEPH C. NJIKONYE with him is ISAAC ITAFor Appellant
AND
K. O. FAGBEMI with him is B. A. OyunFor Respondent
