BAMGBOPA & ORS v. UNION BANK (2020)

BAMGBOPA & ORS v. UNION BANK

(2020)LCN/14072(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/L/385/2016

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

1. ENGR. TITUS OLAGOKE AKANNI BAMGBOPA 2. ENGR. SIKIRU OLATUNBOSUN OKE 3. ENGR. SALIU AKINTUNDE OLOWU (Practicing Under The Name And Style Of Civ-Struct Associates Chartered Engineers & Consultants) APPELANT(S)

And

UNION BANK NIG. PLC RESPONDENT(S)

RATIO

THE NATURE OF A CONTRACT

The law is settled that an agreement or contract can be in any form; i.e., written or oral, and express or by implication; implied so long as the intention of the parties is manifested in their actions or conduct in the transaction between them. See Trade Bank, Plc v. Morenikeji (2005) 5 NWLR (Pt. 920) 309 @ 314; Obayiuwana v. Ede (supra), Shell BP v. Jammal Engr. (supra); NRC v. Umera (2006) 17 NWLR (Pt. 1008) 1; Ibama v. SPDCN Ltd. (supra). Whether or not an agreement or contract can properly be implied between the parties to a contract in which there are express terms, would depend on the peculiar facts and circumstances of a case to be carefully considered by the Court where called upon to do so. Relevant factors to be taken into consideration include (a) the terms and conditions expressly agreed to by the parties in their contract, (b) the nature of the transaction and (c) the general conduct of the parties in the performance of the contract.
These and other material factors that may arise from the facts and peculiar circumstances of a case would be carefully considered by a Court in order to determine whether any other terms, in addition to the ones expressed by the parties, can reasonably be implied into their contract, bearing in mind the law that a Court has no power to re-write a contract entered into by the parties or make one for them outside the terms they agreed to. Olatunde v. O. A. U (1998) 5 NWLR (Pt. 549) 178, (1998) 4 SC, 191; O. H. M. B v. Apugo (1990) 1 NWLR (Pt. 129) 652); S.E.C. v. N. B. C. & I (2006) 2-3 SC, 74, (2006) 7 NWLR (Pt. 978) 198; BFI Group Corp. v. B.P.E. (2012) 6-7 MJSC (Pt. II) 124, (2012) LPELR-9339 (SC).
In addition, the Courts do not have the power to intervene in a contract entered into by the parties on agreed terms and conditions expressed by them and to impose other terms arbitrarily, by implications. However, the Courts may imply a term or terms in a contract or agreement by parties in order to fill in a necessary and essential gap left by the parties in the terms expressly agreed to by them which fails to regulate their respective rights and obligations in the transaction between them. See Mazin Engr. Ltd v. Tower Aluminum (1993) 5 NWLR (Pt. 295) 526 @ 567; Majekodunmi v. NBN Ltd (1978) 2SC, 119 @ 127; B. StabIlini & Co. Ltd v. Obasi (1997) 7 NWLR (Pt. 520) 293 @ 297. PER GARBA, J.C.A

THE BURDEN OF PROOF IN A CIVIL MATTER

The provisions of the section places the burden of proving the existence of a fact on the party against whom judgement of a Court would be given if non were produced on either side, regard being heard to any presumption that may arise on the pleadings. See NEPA v. Akpata (1991) 2 NWLR (Pt. 175) 536, Torri v. National Park Serv. Nig. (2011) 5-7 MJSC (Pt. 1) 153; Purification Tech. Nig. Ltd v. Jubril (2012) 6-7 MJSC (Pt. 1) 73; Afolabi v. Western Steel Work Ltd (2012) 6-7 MJSC (Pt. 1) 118; Onyemeh v. Imueze (2013) LPELR-21879(CA); ACN v. Lamido (2011) LPELR-9174(CA), Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299. The standard of proof required in all civil proceedings is one on the balance of probabilities based preponderance of credible evidence, under Section 134 of the Evidence Act, 2011. Owosho v. Dada (1984) LPELR-2857(SC); Daodu v. NNPC (1998) 2 NWLR (Pt. 538) 355; Braimah v. Abasi (1998) 13 NWLR(Pt. 581) 167; Itauma v. Akpe-Ime (2000) 7 SC (Pt. II) 24; Adighije v. Nwaogu (2010) 12 NWLR (Pt. 1209) 419; Plateau State v. A. G. Fed. (2006) (2006) ALL FWLR (Pt. 305) 590; Ayorinde v. Sogunro (2012) 5-7 MJSC (Pt. III) 1. PER GARBA, J.C.A

WHETHER THE AVERMENT IN PLEADINGS NOT DENIED WOULD BE DEEMED TRUE

The law is that an averment in pleadings not denied or controverted is deemed true, correct and admitted. See Ajikawo v. Ansaldo Nig. Ltd. (1991) 2 NWLR (Pt. 173) 359; British Airways v. Makanjuola (1993) 8 NWLR (Pt. 311) 276; Otto v. Mabamije(2004) 17 NWLR (Pt. 903) 489; Raynolds Constr. Co. Nig. Ltd. v. Rockonoh Prop. Co. Ltd (2005) 4 SC, 1; U. P. S. Ltd v. Ufot (2006) ALL FWLR (Pt, 314) 337. Since the averment of the Appellants on the volume and extent of work done by them was not denied, no dispute arises or issue was joined by the parties which called for proof on the part of the Appellants since a fact is admitted, requires no further proof by virtue of the provisions of Section 123 of the Evidence Act, 2011; an elementary principle of evidence law. See Haruna v. Univ. of Agric, Makurdi (2006) ALL FWLR (Pt. 304) 432; Veepee Ind. Ltd v. Cocoa Ind. Ltd (2008) 7 MJSC, 125; Olagunyi v. Oyeniran (1996) 6 NWLR (Pt. 453) 127; Akpan v. Umoh (1999) 11 NWLR (Pt. 627) 349; Agbanelo v. UBN Ltd (2000) 4 SC (Pt. 1) 233; Gabari v. Ilori (2002) 14 NWLR (Pt. 786) 78. In the absence of a dispute which called for proof, it was not appropriate and proper for the Lower Court to state that the Appellants did not prove the volume and extent of work done for the fees claimed. PER GARBA, J.C.A

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellants were engaged by the Respondent as its Structural Engineering Consultants in respect of its office building project at Abuja. According to the Appellants, they produced complete structural drawings for the building, obtained government approval and rendered their bill of charges for the services based on the Federal Government scale of fees, which the Respondent refused to pay, offered a sum which the Appellants flatly rejected. In consequence, the Appellants instituted the Suit No. LD/1981/2000 before the High Court of Lagos State, at Badagry and in the Amended Statement of Claim dated 21st day of June, 2011, claimed the following reliefs against the Respondent.
“(a) The sum of N110,973,448.03 being the fee, reimbursable expenses and interest calculated in accordance with the scale of fees due to the Claimant as Consulting Engineers to the Defendant for the preparation by the Claimants on the Defendant’s instructions of structural design calculations, working drawings, reinforcement bending schedules for the proposed Defendant’s building at

Abuja as at 31st March, 2011.
(b) Compound interest on the said sum at the rate of 27% per annum as from the 1st day of April, 2011 until the payment of the entire sum.”

In reaction to these claims, the Respondent denied any agreement between the parties on the scale to be used in calculating the fees payable for the services rendered by the Appellants and asserted that the Appellants decided not to continue with the Respondent’s project during the design stage.

Each of the parties called a sole witness at the trial and in a judgment delivered on the 17th day of November, 2015, Lower Court found in favour of the Appellants as follows: –
“Judgement is hereby entered in favour of the Claimants in the sum of ₦3,162,843.75 (Three Million, One Hundred and Sixty-Two Thousand, Eight Hundred and Forty-Three Naira, Seventy-Five Kobo only). Interest also at 21% per annum is awarded on the above judgment sum from 12th July, 2010 till today and hereafter at the rate of 10% per annum till final liquidation of the Judgment sum.”

This appeal is a result of the dissatisfaction by the Appellants with the above decision and

is premised on seven (7) grounds numbered a-h (letter f was omitted) contained on the Notice of Appeal dated 12th February, 2016. In the Appellants’ brief filed on 18th May, 2016, settled by Bambo Adesanya, SAN, the following four (4) issues are said to arise for determination in the appeal: –
“(a) Whether on a proper evaluation of the letters and documents exchanged between the parties, as well as their conduct, the Learned Trial Judge was right in holding that there was no agreement between the Parties, and that there was no agreement between the parties that the Appellants’ professional fees were to be computed and paid in accordance with the consultants professional scale fees (Grounds a and b).
(b) Whether on the proper evaluation of the evidence and documents tendered the Learned Trial Judge was right in holding that the Appellants did not discharge the burden of proving the volume and extent of work done as to entitle them to the fees demanded (Grounds c and d).
(c) Whether the Learned Trial Judge was right in awarding interest at the rate of 21% per annum as against the 27% per annum computed by the Appellant and whether

the Learned Trial Judge was right in holding that the interest ran from 12th July, 2010 and not 1st June 2000, when the cause of action arose (Ground e and f).
(d) Whether on the totality of the evidence before the lower Court, the Appellants were not entitled to the terminal reliefs set out in paragraph 22 of their Amended Statement of Claim (Ground g).”

The issues are adopted in the Respondent’s brief settled by T. O. Lawal and filed on the 23rd day of March, 2017, deemed on the 15th January, 2019.

To complete the settlement of briefs in the appeal, an Appellant Reply Brief was filed on the 16th January, 2020 which was deemed on 20th January, 2020; the date of the oral hearing of the appeal in Court.

I intend to consider arguments of the parties on the issues together and then determine the crucial question of whether the Lower Court is right in the decision appealed against.

Appellants’ Submissions:
It is submitted that on a proper evaluation of the letters exchanged between and the conduct of the parties in the transaction, would show that there was an implied agreement or contract that the Appellants were to

be paid fees for their services to the Respondent in accordance with the Consultant’s scale of charges prescribed by the Federal Government: Obayiuwana v. Ede (1998) 1 NWLR (Pt. 535) 670 @ 679; Shell B. P. v. Jammal Engineering (1974) 4 SC, 33 @ 72 and the evidence of CW1 at paragraphs 10 and 11 of his Statement on Oath, were cited in support of the submission and it is contended that by the authority of Halbury’s Laws of England, 4th Edition Reissue, Vol. 4(2) at page 420, on “Remuneration of Architects and Engineers”, professional scale of charges apply in the following cases: –
“(a) Where there is an express agreement between the parties to this effect or;
(b) Where from the facts of the case it could be implied that the employer agreed to be bound by it or;
(c) Where the Employer is familiar with the professional scale of charges and is also familiar with the practice of the consultants to use them.”

According to the Learned SAN for the Appellants, the case before the Lower Court was based on (b) and (c) above, citing Oyenuga v. Intern. Computers Ltd (1986) 4 NWLR (Pt. 34) 240 @ 247 and

Slovin-Braford v. Volpoint Prop. Ltd. (1971) 3 AER, 570 @ 574. Paragraphs 5, 8, 9, 14, 17-19 of the CW1’s Statement on Oath as well as Exhibits 19 and 20 tendered by the Appellants are referred to and it is maintained that the Respondent was aware of the scale of charges for the services of the Appellants since it had previously paid the fees for its Warri Office project to the Appellants on the basis of the professional scale as shown in Exhibits 27 and 29, and admitted by the Respondent’s witness under cross-examination. The Court is invited to imply that the Respondent agreed to be bound by the professional scale of fees for the services of the Appellants in respect of the Abuja project, and to hold that the denial of the scale of charges, which was only raised in the Statement of Defence two (2) years after the bill of charges was rendered, was an afterthought. The case of Okonkwo v. Kpajie (1992) NWLR (Pt. 226) 633 @ 655 and Oyenuga v. Intern. Computers Ltd (1991) 1 NWLR (Pt. 168) 415 @ 427 are cited on issue estoppel by conduct.

It is also the case of the Appellants that there was unchallenged evidence from CW1 that the Appellants

carried out work up to stages 1 and 2 for which the fees were claimed contrary to the perverse finding by the Lower Court that there was contradiction in the stages at which the Appellants carried out the work.

Reference is made to paragraphs 23, 23(b), 24 and 33 of Statement on Oath of CW1 on the claim of interest which are said to be uncontradicted and which show facts on which the claim was based; including the current bank rate. On the authority of Osondu Co. Ltd v. Akhigbe (1999) 11 NWLR (Pt. 525) (no page provided) the Court is urged to hold that the Lower Court erred in award of interest rate at 21% from 2010 in view of the unchallenged evidence of 27% per annum from May, 2000.

Finally, it is submitted that the Appellants have, from the evidence placed before the Lower Court, discharged the burden of proving payment of their fees by scale of professional fees and so there was no need for the Lower Court to resort to reasonable fees in the circumstances of the Appellants’ case.

The Court is urged to allow the appeal and grant the reliefs set out in the Appellants’ Amended Statement of Claim.

Respondent’s Submissions:
The submissions are that the Appellants have admitted and conceded that there was no prior agreement or contract between the parties that the Federal Government Scale of Professional fees for consultants or that any of the Appellants’ professional bodies/organisations shall be applicable in the case before the Lower Court. It is then argued that the Halbury’s Laws of England relied on by the Appellants are only persuasive and referred to only Architects and not Engineers, as is the case of the Appellants, pointing out that the Architects in the case accepted the amount offered by the Respondent which was not calculated on the scale of fees demanded by the Appellants. On the authority of Ibama v. SPDCN Ltd (1998) 3 NWLR (Pt. 542) (no page provided) @ 8-9, it is submitted that even though in appropriate cases a Court is entitled to infer or imply terms into a contract, it should always be careful not to re-write or make a new contract for the parties. In the Appellants’ case, it is contended that they have woefully failed to prove facts which will assist the Lower Court to imply that the Respondent by conduct agreed to pay the

Appellants fees based on the Federal Government Professional Scale of Fees for consultants for the service rendered as the Warri project was paid for on the basis of the agreement between the parties and not on any alleged scale. Reference was made to paragraphs 4 of Statement of Defence and paragraph 5 of the Statement on Oath of DW1 and it is submitted that the Appellants owed the burden to prove the allegation of the payment of the Warri project, relying on Hilary Farms Ltd v. M/V “Mahtra” (2007)14 NWLR (Pt. 1054) 210. Exhibits 8, 27 and 29 relied on by the Appellants are said not to show that the Respondent agreed to pay on the basis of the Federal Government Scale of fees. Furthermore, it is contended that there was no evidence that the Respondent is familiar with that scale of fees, which was made for the public sector and not the private sector. The Court is urged to discountenance the Appellants’ submission on estoppel by conduct since it was neither pleaded, nor raised in the Lower Court, not pronounced upon by it and not in the grounds of appeal (a) and (b). African Pel. Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 291 @ 423 (sic);

Ikotun v. Oyekanmi (2008) 10 NWLR (Pt. 1094) and Ayoya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135 are cited and the Court is further prayed to affirm the decision by the Lower Court.

Issue (b) is conceded to the extent that the work done by the Appellants at stages 1 and 2 was not in dispute.

On the claim for 27% per annum from the year 2000, it is submitted that the Appellants are not entitled to the said interest since there was no agreement by the Respondent to pay such interest and reference was made to Document 7 tendered by the Appellants. It is also the argument of counsel for the Respondent that interest ought not to be calculated from the time the case was filed before the Lower Court in 2000, and so that Court is right to assess the rate and time the interest was to be paid in the case. The Court is urged to affirm the decision by the Lower Court on the award of interest.

The Court is also urged to resolve Issue (d) against the Appellants and hold that they failed to prove their entitlement to the reliefs in paragraph 22 of the claim.

In conclusion, the Court is urged to resolve all the four (4) issues in the appeal against the

Appellants and dismiss the appeal.

In the Appellant Reply’s brief, it is said the Halbury’s Laws of England deal with both Architects and Engineers in paragraph 548 and that they are applicable in Nigeria on the authority of Oyenuga v. Intern Computers Ltd (supra) paragraph 5(b) of the Reply to the Statement of Defence at page 416 of the Record of Appeal was referred to on the plea of issue estoppel by the Appellants, which, on the authority of O. A. U. v. Onabanjo (1991) 5 NWLR (Pt. 193) 549 @ 567, can be used as a sword in certain cases.

Resolution
From the cases presented by the parties in their pleadings and evidence, no dispute arises on the agreement/contract between them for the provision of professional services by the Appellants to the Respondent in respect of the building project at the Abuja office of the Respondent. See paragraphs 8 and 9 of the Amended Statement of Claim and 10 and 11 of the Statement on Oath (SOO) of the only witness called by the Appellants, both dated 21st of June, 2011 as well as paragraph 10 of Amended Statement of Defence and paragraph 8 of the Statement on Oath of the Respondent’s witness

both dated 22nd day of May, 2013.
There is no dispute between the parties that the Respondent was to pay for the professional services to be provided by the Appellants for the project and that they did not specifically and expressly agree on the amount or sum to be paid or on how the fees are to be determined. The determination of the fees to be paid for the services rendered by the Appellants to the Respondent is the primary issue of dispute which eventually led to the case before the Lower Court.
After a consideration of the facts in the pleadings and evaluation of the evidence placed before it, the Lower Court found and held that there was no straight forward agreement between the parties to assist it in making clear finding on their rights.
In the absence of a straight forward agreement or express contract between the parties which clearly set out their rights and since admittedly there was no specific and express agreement between the parties on the sum or amount to be paid by the Respondent for the services of the Appellants as fees or how the fees are to be determined, are there facts and evidence from which the fees to be paid could be

reasonably inferred or implied with certainty? The law is settled that an agreement or contract can be in any form; i.e., written or oral, and express or by implication; implied so long as the intention of the parties is manifested in their actions or conduct in the transaction between them. See Trade Bank, Plc v. Morenikeji (2005) 5 NWLR (Pt. 920) 309 @ 314; Obayiuwana v. Ede (supra), Shell BP v. Jammal Engr. (supra); NRC v. Umera (2006) 17 NWLR (Pt. 1008) 1; Ibama v. SPDCN Ltd. (supra). Whether or not an agreement or contract can properly be implied between the parties to a contract in which there are express terms, would depend on the peculiar facts and circumstances of a case to be carefully considered by the Court where called upon to do so. Relevant factors to be taken into consideration include (a) the terms and conditions expressly agreed to by the parties in their contract, (b) the nature of the transaction and (c) the general conduct of the parties in the performance of the contract.
These and other material factors that may arise from the facts and peculiar circumstances of a case would be carefully considered by a Court in order to determine

whether any other terms, in addition to the ones expressed by the parties, can reasonably be implied into their contract, bearing in mind the law that a Court has no power to re-write a contract entered into by the parties or make one for them outside the terms they agreed to. Olatunde v. O. A. U (1998) 5 NWLR (Pt. 549) 178, (1998) 4 SC, 191; O. H. M. B v. Apugo (1990) 1 NWLR (Pt. 129) 652); S.E.C. v. N. B. C. & I (2006) 2-3 SC, 74, (2006) 7 NWLR (Pt. 978) 198; BFI Group Corp. v. B.P.E. (2012) 6-7 MJSC (Pt. II) 124, (2012) LPELR-9339 (SC).
In addition, the Courts do not have the power to intervene in a contract entered into by the parties on agreed terms and conditions expressed by them and to impose other terms arbitrarily, by implications. However, the Courts may imply a term or terms in a contract or agreement by parties in order to fill in a necessary and essential gap left by the parties in the terms expressly agreed to by them which fails to regulate their respective rights and obligations in the transaction between them. See Mazin Engr. Ltd v. Tower Aluminum (1993) 5 NWLR (Pt. 295) 526 @ 567; Majekodunmi v. NBN Ltd (1978) 2SC, 119 @ 127; B.

StabIlini & Co. Ltd v. Obasi (1997) 7 NWLR (Pt. 520) 293 @ 297.

The peculiar facts and circumstance of the contract between the Appellants and the Respondent, as disclosed in paragraphs 5, 6 and 7 of the Amended Statement Claim and paragraph 5 of the Amended Statement of Defence are that the parties had entered into similar contracts for the provision of the same professional services by the Appellants to the Respondent in respect of its other building project at offices in Warri, Kaduna and Lagos in addition to the one at Abuja; the subject of the dispute between them.

By the pleadings in paragraphs 6 and 13 of the Amended Statement of Claim, paragraphs 9 and 15 of the Statement on Oath of CW1 and paragraph 3 each of the Reply to the Amended Statement of Defence as well as the Supplementary Witness Statement of the same CW1, the Respondent knew that the fees for professional services rendered by the Appellant for the Abuja project was to be based and paid on Federal Government scale used for the payment the same services rendered in respect of the Warri project. Exhibits 1, 27, 28, 29 and 30 are relied on for the position.

In paragraph 6 of the Amended Statement of Defence, the Respondent denied that it paid or at any time agreed to pay the Appellants the fees for the Warri project on the basis of the Federal Government Scale. This deposition of fact was repeated at paragraph 5 of the Statement on Oath of DW1.

Because it was the Appellants who asserted positively that the Respondent, in fact and deed, paid them fees for the same professional services rendered to it in respect of the Warri project, which is similar with the Abuja project, by dint of the provision of Sections 132 and 133 (1) of the Evidence Act, 2011, the burden is on them to prove it, if it is to be reasonably implied that the parties understood and intended that the fees to be paid for the services contracted for the Abuja project was to be based on the scale of fees used for the payment of the Warri project. The provisions of the section places the burden of proving the existence of a fact on the party against whom judgement of a Court would be given if non were produced on either side, regard being heard to any presumption that may arise on the pleadings. See NEPA v. Akpata (1991) 2 NWLR (Pt. 175) 536,

Torri v. National Park Serv. Nig. (2011) 5-7 MJSC (Pt. 1) 153; Purification Tech. Nig. Ltd v. Jubril (2012) 6-7 MJSC (Pt. 1) 73; Afolabi v. Western Steel Work Ltd (2012) 6-7 MJSC (Pt. 1) 118; Onyemeh v. Imueze (2013) LPELR-21879(CA); ACN v. Lamido (2011) LPELR-9174(CA), Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299. The standard of proof required in all civil proceedings is one on the balance of probabilities based preponderance of credible evidence, under Section 134 of the Evidence Act, 2011. Owosho v. Dada (1984) LPELR-2857(SC); Daodu v. NNPC (1998) 2 NWLR (Pt. 538) 355; Braimah v. Abasi (1998) 13 NWLR (Pt. 581) 167; Itauma v. Akpe-Ime (2000) 7 SC (Pt. II) 24; Adighije v. Nwaogu (2010) 12 NWLR (Pt. 1209) 419; Plateau State v. A. G. Fed. (2006) (2006) ALL FWLR (Pt. 305) 590; Ayorinde v. Sogunro (2012) 5-7 MJSC (Pt. III) 1.

I have closely considered the Exhibits 1, 27, 28, 29 and 30 tendered and relied on by the Appellants for the case made that the Respondent in fact paid them fees for the same or similar professional services rendered for the Warri project based on the Federal Government scale and find them to be credible. These Exhibits prima facie,

support the averments of the Appellants and are the hangers on which the unchallenged oral evidence of CW1 on the point, is to be assessed and which make the case of the Appellants preponderate on the balance of the probabilities. The facts and evidence presented by the Appellants show that since the parties did not expressly agree on the fees to be paid for the professional services rendered by the Appellants for the Abuja project of the Respondent or how the fees are to be determined, and the Respondent did not specifically raised any objection promptly on the bill of charges forwarded to it by the Appellants, it is reasonable in the circumstances, to imply that the parties intended to and agreed that the fees to be paid by the Respondent was to be on the basis of the same scale of fees used for the payment in respect of the Warri project. There is no dispute that the scale of fees used for the payment to the Appellants for their professional services was the Federal Government Scale of Professional Fees for Consultants, like the Appellants. The Respondent cannot expect to be provided professional services by the same consultants for the same or similar

projects and without express or specific agreement to that effect, and then use different scale to assess, calculate and unilaterally determine the fees to be paid to the Appellants for the said services. I am in complete agreement with the Learned SAN for the Appellants that from the peculiar facts and circumstances of the Appellants’ case, the Respondent, in the absence of an express and specific agreement on the fees for the Abuja project, impliedly agreed that the fees paid to the Appellants for the same professional services rendered in respect of similar previous projects, was to be based, determined and calculated on the basis of the same scale of fees used for the said earlier projects. The Exhibits 8, 9, 12, 14, 15, 16, 20, 21, 23, and 24 attached to the Amended Statement of Claim clearly support the position that the Respondent all along, acted and gave the impression that it was to pay the professional fees of the Appellants on the same scale used for the fees paid in respect of its previous projects in which the Appellants participated as Consultant Structural Engineers.

In the above premises, it cannot rightly be said that from the

cases presented by the parties, a clear finding cannot be made on the rights of the parties in respect of the contract entered into by them in respect of the fees to be paid for the Abuja project. The facts and circumstances of the case, as demonstrated earlier, clearly show an implied agreement by the parties on the scale of the fees to be paid by the Respondent to the Appellants for the Abuja project, the subject of their contract and dispute on the fees.

I find merit in the Appellants’ arguments on the Issue (a) and resolve it in their favour.

On Issue (b) there appears to be no dispute and issue joined by the parties in their pleadings on the extent and volume of the work done by the Appellants for the fees claimed.

In paragraph 11 of the Amended Statement of Claim, the Appellants deposed to the fact that they, in pursuance of the instructions by the Respondent, they prepared structural designs and reinforcement bending schedules for stages I and II of the project. This averment of the Appellants was not controverted, challenged or even reacted to by the Respondent in the Amendment Statement of Defence and so deemed accepted and

admitted. The law is that an averment in pleadings not denied or controverted is deemed true, correct and admitted. See Ajikawo v. Ansaldo Nig. Ltd. (1991) 2 NWLR (Pt. 173) 359; British Airways v. Makanjuola (1993) 8 NWLR (Pt. 311) 276; Otto v. Mabamije(2004) 17 NWLR (Pt. 903) 489; Raynolds Constr. Co. Nig. Ltd. v. Rockonoh Prop. Co. Ltd (2005) 4 SC, 1; U. P. S. Ltd v. Ufot (2006) ALL FWLR (Pt, 314) 337.

Since the averment of the Appellants on the volume and extent of work done by them was not denied, no dispute arises or issue was joined by the parties which called for proof on the part of the Appellants since a fact is admitted, requires no further proof by virtue of the provisions of Section 123 of the Evidence Act, 2011; an elementary principle of evidence law. See Haruna v. Univ. of Agric, Makurdi (2006) ALL FWLR (Pt. 304) 432; Veepee Ind. Ltd v. Cocoa Ind. Ltd (2008) 7 MJSC, 125; Olagunyi v. Oyeniran (1996) 6 NWLR (Pt. 453) 127; Akpan v. Umoh (1999) 11 NWLR (Pt. 627) 349; Agbanelo v. UBN Ltd (2000) 4 SC (Pt. 1) 233; Gabari v. Ilori (2002) 14 NWLR (Pt. 786) 78. In the absence of a dispute which called for proof, it was not appropriate and proper for the

Lower Court to state that the Appellants did not prove the volume and extent of work done for the fees claimed.

This apart, in paragraph 13 of the Statement on Oath of CW1, it is deposed that the Appellants prepared the structural designs, working designs and reinforcement bending schedules for stages I and II of the Abuja project in support of the avernment in the Amended Statement of Claim. DW1 under cross-examination by Learned Senior Counsel for the Appellants, at pages 480-481, admitted the fact that the processes in stage 1 and 2 of the Abuja project were completely done by the Appellants. This is sufficient and credible evidence to prove, on the balance of probabilities on the preponderance of the only evidence on the issue, before the Lower Court, the volume and extent of the work done by the Appellants for the fees they claimed from the Respondent in the case.
In these premises, the issue is resolved in favour of the Appellants.

The next issue is on the award of 21% per annum interest on the judgement sum from 12th of July, 2010 instead of the 27% per annum from June 1st, 2000 claimed by the Appellants.

The averments of the Appellants on the interest claimed are in paragraphs 17 and 19 of the Amended Statement of Claim which say: –
“17 The estimated cost of the five story project was ₦244,362,562.50 while the estimated cost of the single storey building was ₦77,820,000 and in accordance with the scale of fees the Claimants are entitled to be paid a total fee note, expenses, and disruption charge totaling ₦4,166,190.83 and by 26th July 1999, interest element of ₦749,143.34 had accrued therein, thereby making total fee note, expenses and interest ₦4,915,334.17. The Claimants plead the contents of their letter to the Architect copied to the Defendant and other consultants and dated 26th July, 1999.
19. In accordance with the conditions of engagement and scale fees all sums due to the Claimants from the Defendant shall bear interest at the expiration of 40 days of the submission of the fee note calculated at the bank rate which was 27% per annum which was current at the material time, and accruing from day to day, and which rate is the mean rate of current bank rates from 31st May, 2000 up to date.”

The evidence of CW1 in support of these

averments is at paragraphs 23, 23(b), 24 and 33 of his Statement on Oath.

On its part, the Respondent denied the interest claimed in paragraphs 18, 19 and 23 of the Amended Statement of Defence which were repeated in paragraphs 15, 16 and 21 of the Statement on Oath of DW1.

What appears clear from the state of the case presented by the Appellants on the rate of the interest claimed and the date from which it was claimed is that they were unilaterally calculated and fixed by the Appellant without any credible basis or foundation except the ipse dixit that the Appellants obtained a facility from another Bank which sent statements and notices of applicable interests from time to time, to them. They did not state when the facility was taken or the rate of interest paid by them for the facility. There is no credible evidence placed before the Lower Court to sufficiently prove the rate of the interest claimed by the Appellants in the case. For evidence, even if unchallenged, to be accepted, acted upon and relied on by a Court as proof of a claim, it must be credible and sufficient to ground such a claim. See Rockonoh v. NITEL Plc (2001) 14 NWLR (Pt. 733)

468 @ 508-9; Gonzee Nig. Ltd v. N. E. R. D. C. (2005) ALL FWLR (Pt. 274) 235 @ 248. The Lower Court had found on the interest claimed, inter alia, that: –
“The Claimants furthermore on their own assessed, computed and added interest at 27% to come up with the total claim on N110,973,448.03 as at 31/03/11 while the case was filed on 12/07/2010. The Claimants have no right to unilaterally impose interest even if it was part of the Agreement. There is however no proof of such an Agreement between the Parties. The documents referred to by the Claimants were not executed by the Parties. The Court however has the inherent power to impose interest based on mercantile practice.”
“Interest also at 21% per annum is awarded on the above Judgement sum from 12th July, 2010 till today and hereafter at the rate of 10% per annum till the final liquidation of the Judgment sum”.
Since the Lower Court found that the case was filed on 12th July, 2010, even though it noted after the award of the interest that the litigation has spanned over fifteen (15) years, I do not find a firm ground to disturb the award of interest in the terms made

in the judgement.
The issue is resolved against the Appellants.

The last issue is on whether the Appellants are, on the totality of the evidence placed before the Lower Court, entitled to the grant of the reliefs set out in paragraph 22 of the Amended Statement of Claim.

I have already decided that the Lower Court is right in the award of interest on the judgement sum under the Issue ‘c’ above and so in effect, determined that the Appellants are not entitled to the relief (b) in paragraph 22 of the Amended Statement of Claim. The implication is also that the total sum claimed in relief (a) which was calculated on the basis of the claim for compound interest at 27% per annum from May 31st, 2000, cannot be granted on the basis of the credible evidence placed before the Lower Court. In the premises, the issue is resolved against the Appellants.

In the final result, I find merit in the appeal on Issues (a) and (b), and allow it in that part. On Issues (c) and (d) the appeal fails.

Consequently, the award of the sum of ₦3,162,842.75 as fees for the professional services rendered by the Appellants in respect of the

Respondent’s project in Abuja is hereby set aside.

In its place, it is ordered that the professional fees for the services rendered by the Appellants shall be calculated and paid by the Respondent on the basis of the Federal Government Scale of Fees, for Consultants in the Construction Industry (April 1996 Edition).

Interest on the sum due to the Appellants shall be as ordered by the Lower Court, which is hereby affirmed.
Parties shall bear their respective costs for prosecution of the appeal.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privilege to have read in draft, the learned brother, Mohammed Lawal Garba, JCA, which has just been delivered.

All the issues thrust up for determination have been resolved in a manner which is in accord with my views. Accordingly, I also allow the appeal in part and on the same terms as set out in the leading judgment. I abide by the order as to costs.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother MOHAMMED LAWAL GARBA, JCA. I agree with the judgment and adopt it as mine with nothing useful to add.

Appearances:

Adesanya Mrs., with him, O. A. Adeniyi For Appellant(s)

O. Lawal, with him, T. O. Ojo and E. G. Eshiet For Respondent(s)