LawCare Nigeria

Nigeria Legal Information & Law Reports

BAUCHI STATE GOVERNMENT & ANOR v. UNI CONTRACTORS NIGERIA LIMITED & ORS (2014)

BAUCHI STATE GOVERNMENT & ANOR v. UNI CONTRACTORS NIGERIA LIMITED & ORS

(2014)LCN/7106(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of April, 2014

CA/J/21/2005

RATIO

WHETHER A GENERAL DENIAL OF THE PLAINTIFF’S CLAIMS BY THE DEFENDANT IS ADEQUATE IN A CIVIL ACTION 

In a Civil action, a situation where the defendant makes a general denial of the claims raised by the Plaintiff and no more as in this case, that denial is inadequate. 

See OGUMA ASSOCIATE V. IBWA LTD (1938) 3 SCNJ (PT.1) Page 13 at 16. Also pleadings cannot constitute evidence and a defendant as in this case who does not give evidence of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the Plaintiff not withstanding his general traverse. See FCDA V. NAIBI (1990) 5 SCNJ page 187. Per CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A. 

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

1. BAUCHI STATE GOVERNMENT
2. BAUCHI STATE WATER BOARD Appellant(s)

AND

1. UNI CONTRACTORS NIGERIA LIMITED
2. GOMBE STATE GOVERNMENT
3. GOMBE STATE WATER BOARD Respondent(s)

CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice Bauchi State delivered on the 3rd of February 1997. The 1st Respondent (Plaintiff) at the lower Court claimed against the Appellants (Defendants) at the lower Court seeking the reliefs as set out in the amended statement of claim as follows:
“A. A declaration that the Defendants have breached the contract Agreement;
B. An order of specific performance of the contract,
Alternatively:
i. General Damages of $7, 000,000.00 for repudiation of the contract agreement by the Defendants.
ii. Special damages by way of quantum meruit
(a) $5,104,200.00
(b) N415,609.00

Parties joined issues and to prove its case, the 1st Respondent called one witness-Rudoff Mandarago its Managing Director.
Even though the Appellants filed a statement of defence which they later amended, they chose not to call any witness placing their case on that of 1st Respondent.

The learned trial Chief Judge in a considered Judgment held that the 1st Respondent proved its case and gave Judgment in favour of the 1st Respondent. This appeal is predicated on that Judgment.
On the 11th of April 2002, long after the Judgment was delivered on the 3rd of February, 1997, the court granted an application for joinder of the 2nd & 3rd Respondents brought by Counsel for the 1st Respondent. This informed the emergence of the 2nd & 3rd Respondents, bringing the number of Respondents to three.

Two issues were formulated out of the three Grounds of appeal they read:
1. “Whether the learned trial Chief Judge had the requisite jurisdiction to adjudicate on the 1st Respondent’s claims as constituted and placed before him considering that the contract agreement had no legal efficacy or validity under the law and was therefore a worthless and inadmissible document.?
2. Whether by holding that he had no hesitation in finding that the case of the 1st Respondent (as Plaintiff) was proved, the learned trial Chief Judge granted the 1st Respondent’s monetary claims for both general and special damages and repudiation of the contract and if so, whether he properly evaluated the evidence led in proof thereof viz a viz the principles of law laid down in a plethora of cases by the superior Courts in making this finding?”

In his brief of argument learned Counsel for the Appellant had contended that the trial Court had no jurisdiction to try Suit No BA/45/91 as constituted.
That Exhibit D which was the contract agreement was wrongly admitted in evidence and being a legally inadmissible evidence, the trial Court was deprived of jurisdiction to hear the Suit which revolved round the said contract agreement Exhibit D.
He submitted that since no binding and legal contract ever came into being, the claims for breach of contract lacked competence and therefore deprived the trial Court of Jurisdiction.

Counsel argued further that no specific amount was ever awarded to the 1st Respondent by the trial Court as general or special damages for breach of contract. He further contended that assuming the trial Court actually awarded general and special damages amounting to the sum of US $12,142,000 to the 1st Respondent for alleged breach of contract, that the award was perverse and wrong having been premised on the wrong principles of the law and this being the case, he urged this Court to intervene and make correct findings which is to dismiss the claim. He cited ACB & OTHERS V. B. B APUGO (2001) 5 NSCQR 549 at 568.
ELIJA V. THE STATE (2005) 6 NWLR (PT. 921) 235 at 267.
WOLUCHEM V. GUDI  (1981) 5 SC 291.
OLOSHE V. OGUNBODE (2002) 1 NWLR (PT. 749) at 611.

On the 15/1/2014 when this appeal came up for hearing, parties and their counsel were absent. The Appellants’ brief was served on the Respondents on the 30/5/2007. Since then, the Respondents did not deem it fit to file a Respondents’ brief. The Court having been satisfied that the Respondents were served and still didn’t see the need to file their brief, ordered that the appeal be heard and determined on the Appellants’ brief alone.
The Two issues formulated by learned Counsel for the Appellants appear too lengthy and winding. They could be compressed into one single issue thus:
“Whether considering Exhibit D the contract agreement, the Respondent proved its case to be entitled to the reliefs set out in the claim.”

It is trite that in every case before the Court, the Court is expected to put the evidence of both sides on an imaginary scale and whichever out weighs the other gets Judgment. The present case is a peculiar one, peculiar in the sense that there is no evidence on the side of the Appellants (Defendants) at the trial Court. They filed their statement of defence, but led no evidence in support of the said statement of defence.

The Appellants have made heavy weather in the statement of defence on the fact that there was no valid contract between the parties. The Appellant stated that what existed between the parties was merely a “tentative contract agreement”. A look at Exhibits F and F1 written by the Appellants did not refer to Exhibit D (the contract) agreement as a tentative contract, but described it as “a contract for Gombe Water Supply Scheme.”

A careful look at the Exhibits in this appeal particularly Exhibit D dated 13/1/88, show that it is nothing but a contract agreement and that both parties willingly entered into a contract on the said date.
Article 12 of the contract agreement is very crucial and stands out. For purpose of clarity the said Article 12 states:
“ARTICLE 12 – ARBITRATION
12.1 Any dispute arising between the parties hereto concerning the implementation of the present agreement should be settled by mutual agreement.
12.2 In case an amicable settlement cannot be reached, the dispute shall be referred to arbitration.
12.3 Such reference shall be deemed to be a submission to arbitration in accordance with the provisions of the arbitration law Cap. 7 LAWS of Northern Nigeria, 1963 as applicable to Bauchi State of Nigeria. The decision of the arbitration shall be binding on all parties.”

The Appellants breached this Article 12 and indeed the contract agreement by their letters dated 7/3/1989 and 21/6/1989.
From the clear terms of Exhibit D the Contract Agreement, the Appellants ought to foresee that the 1st Respondent would ordinarily incure expenses in the execution of its own side of the contract.
It is on record that PW1 after his testimony in Court was recalled for cross examination where he stated that he was asking for specific performance of the contract.

I had earlier in this Judgment mentioned that there was only one side of this case at the trial Court since the Appellant did not lead evidence in line with the statement of defence.
It is trite that where a party as in this case did not lead evidence in support of his statement of defence, but relied on the case of the Plaintiffs (now Respondents) that the pleadings amount to nothing and of no effect whatsoever. An averment in the pleadings is not and does not tantamount to evidence and must therefore be proved.
See AJUWO v. AKANNI (1993) 12 SCNJ page 32 at 36.

It is clear and unambiguous that Exhibit D having been made and signed on every page is a binding contract. The second claim of the Respondent for specific performance is of no moment since it is impracticable to enforce it without involving a third party. The present Gombe State Government cannot be forced to perform a contract already determined by the Bauchi State Government.

Having stated earlier that there was an agreement between the parties and a beach of that agreement as per Exhibits F1 and F2 the law is that whenever there is a breach of contract, the innocent party is entitled to damages. Where as in this case there is proof of loss of profit to be made, the Court must award damages. See the case of WARNER V. FEDERAL HOUSING AUTHORITY (1993) 7 SCNJ page 1 at page 30.

In a Civil action, a situation where the defendant makes a general denial of the claims raised by the Plaintiff and no more as in this case, that denial is inadequate.
See OGUMA ASSOCIATE V. IBWA LTD (1938) 3 SCNJ (PT.1) Page 13 at 16. Also pleadings cannot constitute evidence and a defendant as in this case who does not give evidence of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the Plaintiff not withstanding his general traverse. See FCDA V. NAIBI (1990) 5 SCNJ page 187.

It is clear that the Appellants have breached the contract as seen in Exhibits F1 and F2 and the Respondents are entitled to damages. There is no doubt also that the Respondent has incurred expenses as stated by PW1 M. D Rudolf Mandarago. The amount claimed by the Respondent has not been challenged by the Appellants at the lower Court. The Appellants are by law deemed to have accepted the facts adduced by the Respondent. It is obvious that the contract was breached without regards to Article 12 already stated elsewhere in this Judgment.

In giving Judgment in favour of the Respondent the learned trial Chief Judge stated:
“I have no hesitation in finding that the case of the Plaintiff is accordingly proved. Now the Crux of the matter is the remedy to assuage the wrongful termination of his contract. I must say that it would be inequitable though not unjust to award damages in favour of the plaintiff. I do also consider the fact that Gombe Water Project is still not undertaken. I accordingly order that the parties despite waiver of clause 12 in their agreement to resort to it.
I hereby order the parties to enter into a mutual discussion with a view to either restore the contract or pay the Plaintiff damages to be agreed between the parties. Judgment is hereby given in favour of the Plaintiff….”

Considering the circumstances surrounding the contract agreement Exhibit D, the said Article 12 and the waiver, the learned trial Chief Judge was within the law when he made the above order.
The above order of the trial Court is very clear and succinct. I have no reason or justification to alter or disturb same for it was borne out of the evidence before the trial Court and not in any way perverse.

The sole issue is resolved against the Appellants in favour of the Respondents. This appeal is dismissed. The Judgment of the trial Court is affirmed. I award N50,000.00 costs to the Respondents.

TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the leading judgment of my learned brother C. E. Nwosu-Iheme, JCA just delivered. I am in total agreement with her reasoning and conclusions arrived thereat. I too for the same reasons ably set out in the leading judgment of my learned brother, I too dismiss the appeal and abide by the consequential orders therein contained.

IBRAHIM SHATA BDLIYA, J.C.A.: I have been privileged to read before now the draft of the lead judgment ably and admirably written and delivered by my learned brother, NWOSU-IHEME, J.C.A., I am in full agreement with my Lord’s reasonings and conclusion in dismissing the appeal for it is devoid of any merit. I abide by the order made as to costs.

 

Appearances

Absent in the CourtFor Appellant

 

AND

For Respondent