BEVERLY DEVELOPMENT & REALTIES LTD v. TEC ENGINEERING CO. (NIG) LTD (2020)

BEVERLY DEVELOPMENT & REALTIES LTD v. TEC ENGINEERING CO. (NIG) LTD

(2020)LCN/14687(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, October 26, 2020

CA/KN/218/2018

RATIO

DOCUMENT: PRIMARY RULE IN THE CONSTRUCTION OF DOCUMENTS

It is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should not be imported into them – The Northern Assurance Co. Ltd Vs Wuraola (1969) LPELR 25562(SC), Ogbunyiya Vs Okudo (1979) 6-9 SC 32, Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385. PER ABIRU, J.C.A.

PRELIMINARY OBJECTION: ESSENCE OF A PRELIMINARY OBJECTION

The whole essence of a preliminary objection, as the name implies, is to stop in limine the hearing of a matter on the merits. It thus takes precedence and should be taken first and dispose off before taking further steps in the matter – Yaro Vs Arewa Construction Limited (In Receivership) (2007) 6 SCNJ 418, Arueze Vs Nwaukoni (2019) 5 NWLR (Pt 1666) 469, Amah Vs Federal Republic of Nigeria (2019) 6 NWLR (Pt 1667) 160, Mustapha Vs Corporate Affairs Commission (2019) 10 NWLR (Pt 1680) 355. PER ABIRU, J.C.A.

PRELIMINARY OBJECTION: EFFECT OF FAILURE TO ARGUE PRELIMINARY OBJECTION PRIOR TO THE HEARING OF THE MATTER ON MERITS

By failing to argue the preliminary objection prior to the hearing of the matter on the merits, the position of the law is that the Appellant will be deemed to have abandoned the preliminary objection – Nsirim Vs Nsirim (1990) 3 NWLR (Pt 138) 285, Tiza Vs Begha (2005) 15 NWLR (Pt 949) 616, Onochie Vs Odogwu (2006) 6 NWLR (Pt 975) 65, Carew Vs Oguntokun (2011) 5 NWLR (Pt 1240) 376. PER ABIRU, J.C.A.

PLEADING: WHETHER PLEADINGS AMOUNT TO EVIDENCE

It is trite that pleadings do not amount and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them – Oguejiofor Vs Siemens Ltd (2008) 2 NWLR (Pt 1071) 283 and Nika Fishing Co. Ltd Vs Lavina Corporation (2008) 16 NWLR (Pt 1114) 509. Where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings – Omoboriowo Vs Ajasin (1984) 1 SCNLR 108, Idesoh Vs Ordia (1997) 3 NWLR (Pt 491) 17, Dingyadi Vs Wamako (2008) 17 NWLR (Pt 1116) 395. In Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409, the Supreme Court made the point thus:
“… pleading is not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. Thus a party who seeks judgment in his favor is required by law to produce adequate credible evidence in support of his pleadings and where there is none, then the averments in his pleadings are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him.”
Where a defendant fails to prove the averments in his pleadings, he did not take the necessary steps to join issues with the claimant in respect of the averments in the statement of claim and the statement of claim remains unchallenged – Okoebor Vs Police Council (2003) 12 NWLR (Pt 834) 444, Asika Vs Atuanya (2008) 17 NWLR (Pt 1117) 484. Also, the effect of a defendant’s failure to call evidence in defense of the claims against him at the trial is that he is presumed to have admitted the case made against him by a claimant – Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt 1002) 316.
It is correct that failure of a defendant to lead evidence on his pleading does not translate to automatic victory for a claimant. This is because a claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claim to prove his claim – Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt 960) 160 and Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt 1057) 218. However, the law is that in such circumstances, the onus of proof on a claimant will be discharged on minimal evidence as there is no evidence to put on the other side of the imaginary scale – Nwabuoku Vs Ottih (1961) 2 SCNLR 232, Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt 109) 352, Balogun Vs United Bank for Africa (1992) 6 NWLR (Pt 247) 336, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Adewuyi Vs Odukwe (2005) 14 NWLR (Pt 945) 473. PER ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

BEVERLY DEVELOPMENT & REALTIES LTD APPELANT(S)

And

TEC ENGINEERING COMPANY (NIG) LTD RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State in Suit No K/409/2015 delivered by Honorable Justice Yusuf Ubale Muhammad on the 9th of January, 2018.

The Respondent was the claimant before the lower Court and its claims were for:
i. The sum of N12,968,645.85 being the balance of the contract sum outstanding on the contract executed by the Respondent for the Appellant.
ii. The sum of N2,009,373.14 being the 5% retention fee for the contract and which has become due and unpaid by the Appellant.
iii. Post Judgment interest of 10% on the judgment sum from the date of judgment till the date of final liquidation.

The case of the Respondent on the pleadings was that by a letter dated 26th of May, 2014, the Appellant awarded to the Respondent for the construction of the Entrance and Security Gate House 1 at Ado Bayero Mall, Kano for a total sum of N37,982,490.00. It was its case that it accepted the contract award by a letter dated 27th of May, 2014 in the amount offered by the Appellant and that it completed the execution of the

contract within the stipulated sixty working days. It was its case that the Appellant owed it the sum of N14,978,018.00 as the balance sum due on the contract together with the 5% retention fee and that the Appellant has failed to pay up the sum despite repeated demands. It pleaded the several letters of demands written to the Appellant and the responses of the Appellant thereto giving excuses for the non-payment and pleading for time to pay up the sum demanded.

The Appellant filed a statement of defence which it prefaced with the statement that it shall, on or before the date fixed for the hearing or conduct of any business in this suit, take a preliminary objection to the competence of the action on the ground that no cause of action had arisen in favour of the Respondent as at the time of the commencement of the suit. In the alternative, the Appellant denied the case of the Respondent and averred that, by the terms of the contract, the contract sum was not absolutely agreed at N37,982,490.00 and that the Respondent did not complete the contract within the stipulated time and that it was yet to receive a complete valuation certificate from the project

quantity Surveyor as stated in the contract. It was its case that it was not owing the Respondent the sum of N14,978,018.00 as claimed upon a proper reconciliation of the actual sum, the sum already paid to the Respondent and less VAT and Withholding Tax and further that the 5% retention was not agreed to be paid in a lump sum and that the defect liability was still in operation. It was its case that the letters of demands and responses thereto do not form part of the contract and that the bordered-on arrangements and compromises and were not admissible documents.

The matter proceeded to trial and in the course of which the Respondent called one witness in proof of its claim and it tendered several documents and the Appellant rested its case on the evidence led by the Respondent and did not call any independent evidence in proof of its defence. At the conclusion of trial and after the filing of the final addresses, the lower Court entered judgment granting the claims of the Respondent. The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 17th of January, 2018 and containing four grounds of appeal

against it. The notice of appeal was subsequently amended with the leave of this Court and an amended notice of appeal dated the 7th of November, 2018 and containing five grounds of appeal was filed by the Appellant.

In arguing the appeal before the Court, Counsel to the Appellant filed a brief of arguments dated the 17th of January, 2019 on the 18th of January, 2019 and the brief of arguments was deemed properly filed by this Court on the 10th of April, 2019. The Respondent’s brief of arguments in response was dated the 1st of August, 2019 was filed on the 2nd of August, 2019 and was deemed properly filed by this Court on the 15th of September, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.

Counsel to the Appellants formulated five issues for determination in the appeal and these were:
i. Whether the lower Court was right when it held that the conditions precedent to filing the suit were not met, as argued by Appellant, were misconceived simplicita without considering each and every issue of condition precedent raised by the Appellant.

Whether the lower Court was right to have relied on Exhibits A5, A7 and A9 instead of Exhibit A in determining the contractual obligation of the Appellant to the Respondent.
iii. Whether the lower Court was right when it held that resting the case by the Appellant means there is no evidence simplicita, therefore the Respondent had proved its case.
iv. Whether the lower Court was right when it held that the mode of payment agreed in Exhibit A was intended to apply between the parties only when the project was being executed and not after it was completed.
v. Whether the judgment of the Court was not against the weight of evidence.

In arguing the first issue for determination, Counsel to the Appellant referred and reproduced the statement in the preface to the statement of defence and he also referred to and reproduced the provisions of Orders 15 Rules 7(1) and 7(2) of the Kano State High Court Civil Procedure Rules, 2014 and stated that in compliance with the provisions, the Appellant pleaded facts in support its preliminary objection in the statement of defence and he reproduced the facts so pleaded. Counsel

stated that the Respondent did not file a reply to the pleaded facts and that in the final written, Counsel to the Appellant argued that the conditions precedent to the Respondent commencing the action before the lower Court were not fulfilled before the action was commenced. Counsel stated that it was contended before the lower Court that before the Respondent could claim the balance of the contract sum it had to prove the reviewed contract sum, the amount paid so far by the Appellant, the valuation certificates approved by the Project Quantity Surveyors and the practical completion certificate issued by the Project Manager. Counsel stated that in making the above assertion before the lower Court, he referred to the provisions of Exhibit A and the evidence of the witness of the Appellant under cross examination where admitted that the contract sum was subject to review and the fact he once received a mail where a reviewed sum was communicated, but he refused to state the reviewed sum. Counsel stated that by failing the give evidence of the reviewed sum, the Respondent failed to woefully to make out a credible case to sustain its claims, whether defended or

not.

Counsel stated that as regards the retention fee, the provision of the contract is that the 5% retention was payable in 2.5% at practical completion and 2.5% at completion of the defect liability period and which period was six months after practical completion certified by the project manager. Counsel stated that under cross examination the witness of the Respondent stated that he did not have the Certificate of Completion issued by the Project Manager and that this meant that the Respondent did not lead evidence to show the exact date of practical completion of the contract and that as such did not show that retention fee had become due and payable. Counsel stated that the total sum claimed by the Respondent was also not ascertainable as it included sums to be deducted as VAT and Withholding Tax and the Respondent did not produce an authority from the Federal Government to claim these deductions.

Counsel referred to the case of Ogundalu Vs Macjob (2015) All FWLR (Pt 784) 103 in asserting that a party seeking to enforce contractual rights must show that he has performed all the conditions precedent and terms that ought to have been

performed by him and stated that having failed to produce the practical certificate of completion before the Court, the Respondent failed to show that he had completed the contract. Counsel stated that the lower Court discountenanced all the contentions of the Appellant on the ground that they were misconceive and it did not analyse the whole issues canvassed and/or rule upon them one way or the other, but that rather the lower Court suo motu raised the issue of estoppel on the basis of the Appellant’s letter tendered as Exhibit A5, A7 and A9. Counsel stated that the lower Court had a duty to consider and deal with all issues properly raised and canvassed before it and that failure to do so amounts to denial of fair hearing and will certainly lead to a miscarriage of justice and he referred to the cases of Archianga Vs A. G. Akwa Ibom State (2015) 6 NWLR (Pt 1454) 1 and Brawal Shipping (Nig.) Ltd Vs F. I. Onwadike Co Ltd (2000) 11 NWLR (Pt 678) 387.

Counsel stated that though the Appellant rested its case on that of the Respondent, the issues raised by the Appellant in the preliminary objection given in preface statement to the Statement of

Defence were properly raised and argued in the final written address. Counsel stated that the issues were crucial and touched the lifeblood of the case of the Respondent, i.e. jurisdiction, and a decision one way or the other would have affected the outcome of the suit and the lower Court failed in its sacred duty to determine the preliminary objection and thus denied the Appellant fair hearing and he referred to the cases of Garba Vs Mohammed (2016) 16 NWLR (Pt 1537) 114 and Ofordum Vs Nigerian Army (2015) 1 NWLR (Pt 1439) 145. Counsel urged the Court to do needful by resolving the issues raised and canvassed by the Appellant on the notice of preliminary objection incorporated in the Statement of Defence as all the necessary materials for such resolution were properly before this Court and resolve the first issue for determination in favour of the Appellant and allow the appeal accordingly.

On the second issue for determination, Counsel to the Appellant stated that the contract between the Appellant and the Respondent were made up by two documents, the letter of offer and the letter of acceptance tendered as Exhibits A and A1. Counsel noted that in

proving its case, the Respondent tendered additional documents made up of letters of demand and the three responses thereto by the Appellant and which responses were Exhibits A5, A7 and A9 and stated that the responses were settlement and compromise letters written after a dispute had arisen and were thus not admissible in evidence and he referred to the case of Kolo Vs FBN Plc (2003) 3 NWLR (Pt 806) 216. Counsel stated that though the letters were admitted without objection, they constituted inadmissible evidence of the nature that the lower Court ought to have expunged in the judgment, and not relied upon by the lower Court, and he referred to the cases of Onwuzulike Vs State (2017) LPELR 41889(CA) and Owonyin Vs Omotosho (1961) 1 All NLR 304. Counsel stated that the reliance placed on the letters occasioned a miscarriage of justice against the Appellant and polluted the judgment of the lower Court and he urged the Court to resolve the second issue for determination in favour of the Appellant.

In arguing the third issue for determination, Counsel to the Appellant reproduced the claims of the Respondent and stated that failure of the Appellant to call

witnesses was not as a result of lack of evidence to defend the claim, but because the Appellant believed it had a complete answer in law to the claims on the issue of the competence of the action and the jurisdiction of the Court and he referred to the case of Akanbi Vs Alao (1989) 3 NWLR (Pt 108) 118. Counsel stated further that notwithstanding the failure of the Appellant to call evidence, the Respondent was still expected to lead sufficient evidence to establish his claim and he referred to the cases of Cameroon Airlines Vs Otutuizu (2005) 9 NWLR (Pt 929) 202 and Jolayemi Vs Alaoye (2004) 12 NWLR (Pt 887) 322.

Counsel stated that there was difference between when a defendant fails to call evidence and when a defendant rests his case on a plaintiff’s case, in that the earlier situation reduces the burden of proof on the plaintiff to minimal proof while the latter situation puts the burden solely and strongly on the plaintiff. Counsel stated that the lower Court misapplied the scale of justice by treating the Appellant’s resting of its case on the Respondent as reducing the burden on the Respondent to minimal proof and he prayed this

Court to apply the proper scale and to find that the Respondent did not lead sufficient evidence in proof of its case. Counsel urged the Court to resolve the third issue in favour of the Appellant.

In arguing the fourth and fifth issues for determination, Counsel referred to terms of the contract between the parties and repeated his earlier arguments that presentation of Valuation Certificates was to be produced before the Respondent was paid and that a Project Completion Certificate was required to signify the completion of the contract and that having failed to produce these certificates at the trial, the Respondent cannot be said to have proved its case. Counsel stated that parties were bound by their contract and a Court of law must treat the terms of contract of parties as sacrosanct and he referred to the cases of Nigerian Breweries Plc Vs Ikyarkyase (2015) LPELR 40409(CA) and African International Bank Ltd Vs Integrated Dimensional System Ltd (2012) 17 NWLR (Pt 1323) 1. Counsel stated that the finding of the lower Court that mode of payment stated in the terms of contract was only applicable when the contract was still in progress and not

when the contract has been completed was wrongful and that the lower Court was also wrong in placing reliance on the letters, Exhibit A5, A7 and A9, as they did not form part of the contract. Counsel urged the Court to resolve the two issues for determination in favour of the Appellant.

Counsel concluded his arguments by praying the Court to find merits in the appeal and to allow same and set aside the judgment of the lower Court.

On his part, Counsel to the Respondent distilled four issues for determination in the appeal and these were:
i. Whether the lower Court was right that it could not rely or consider solely the statement of defence filed by the Appellant in deciding the case of the Appellant or resolving the issue of jurisdiction upon the failure of the Appellant to call a witness to support the facts in its pleadings as well as failure to also file a formal notice of preliminary objection.
ii. Whether the lower Court was right when it held that resting the case by the Appellant means there is no evidence simplicita, therefore the Respondent had proved its case.
iii. Whether the lower Court was right to have relied on

Exhibits A5, A7 and A9 instead of Exhibit A in determining the contractual obligation of the Appellant to the Respondent.
iv. Whether the Appellant can be seen to raise an issue that has to do with completion of the project having failed to lead evidence to show that the project was not completed neither did it controvert the evidence led by the Respondent.

In arguing the first issue for determination, Counsel to the Respondent stated that while it is correct that the Appellant incorporated a preliminary objection supported by facts in his statement of defence, such preliminary objection without leading evidence thereon remains mere pleadings and never transformed to matters that the lower Court could consider in making its findings in the matter and he referred to the case of Inter Trade Worldwide Distribution Ltd Vs Adeyeye (2017) All FWLR (Pt 895) 1708. Counsel stated that having failed to call evidence in support of the facts in its statement of defence, the two issues formulated and argued by the Appellant’s Counsel before the lower Court based on nothing and that it was trite law that written address of Counsel, no matter how brilliant

and persuasive, cannot substitute for evidence and he referred to the case of First Bank Nigeria Plc Vs Akparabong Community Bank Ltd (2006) All FWLR (Pt 319) 927. Counsel stated that the Respondent called a witness in proof of its case and the witness testified that the Respondent that it had discharged its contractual obligation and tendered documents, without objection from the Appellant, and the Appellant led no evidence in rebuttal. Counsel stated that the evidence of the Respondent was the only evidence available to the lower Court and that the lower Court was correct in relying on the evidence in finding for the Respondent, as it is not the duty of a trial Court to go searching for evidence for a party who has not called witnesses. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.

On his second issue for determination, Counsel to the Respondent stated that the alleged difference between resting a defence on a plaintiff’s case and not calling evidence in support of defence mouthed by Counsel to the Appellant was totally irrelevant because, in either case, the only evidence before the trial Court

is the evidence of the plaintiff and it is this evidence that the trial Court will use in carrying out its duty, as reiterated in the case of Jaji Vs Olowora (2016) All FWLR (Pt 814) 42, of deciding the case on a balance of probabilities. Counsel stated that lower Court was rightly swayed by the evidence of the Respondent and he properly decided the matter on the strength of the evidence presented before it. Counsel urged the Court to resolve the second issue for determination in favour of the Respondent.

In contending his third issue for determination, Counsel to the Respondent referred to the provision of Section 196 of the Evidence Act and to the case of Kolo Vs FBN Plc supra referred to by Counsel to the Appellant and conceded that where a document is marked “without prejudice” and it emanates from offers of compromise or attempts at negotiation, it is inadmissible in evidence. Counsel stated that none of the documents tendered by the Respondents and marked as Exhibits A1 to A10 were not marked “without prejudice” and that, even if they were so marked, they would only qualify if there was indeed a genuine dispute between the

parties and the letter contains a bona fide admission made in the course of negotiations and he referred to the cases of Obeya Vs FBN Plc (2012) All FWLR (Pt 636) 544 and United Bank for Africa Plc Vs I.A.S. Company Ltd (2001) FWLR (Pt 75) 578.

Counsel stated that having not objected to the admissibility of the letters tendered as A5, A7 and A9 so as to let the lower Court scrutinize them to see if they met the necessary requirements, the question is, whether the Appellant can now be allowed to contest their admissibility in this appeal for the first time, and he proceeded to answer the question in the negative and he referred to the cases of Kossen (Nig) Ltd Vs Savannah Bank Nig. Ltd (1995) 9 NWLR (Pt 420) and Osho Vs Ape (1998) 8 NWLR (Pt 562) 492. Counsel stated that the letters, Exhibits A5, A7 and A9 did not meet the requirements of a letter made “without prejudice” and the lower Court rightly relied on them in making its findings. Counsel urged the Court to resolve the third issue for determination in favour of the Respondent.

On the fourth issue for determination, Counsel stated that reference made to a failure to tender a

Project Manager Completion Certificate was mischievous because there was evidence before the lower Court that upon completion of the contract, the Respondent wrote letters of demand for its final payment and in none of the responses of the Appellant did it contend that the contract was completed and/or that it was not owing the Respondent on the contract. Counsel stated that the Appellant did not lead evidence to contest the completion of the contract and neither did its Counsel cross-examine the Respondent’s witness on the point and the evidence of the witness was not challenged and the lower Court was thus entitled to rely on the evidence and he referred to the cases of Simon Vs State (2017) All FWLR (Pt 885) 1929 and Esene Vs The State (2017) All FWLR (Pt 910) 338. Counsel stated that having failed to raise the issue of completion of the contact in the course of trial, the Appellant cannot be heard on this issue in this Court and he urged that the fourth issue for determination be resolved in favour of the Respondent.

Counsel concluded his arguments by praying the Court not to find any substance and/or merit in the appeal and to dismiss same and

affirm the judgment of the lower Court.

Reading through the records of appeal, particularly the pleadings of the parties, the notes of evidence, the final addresses of the parties before the lower Court and the judgment of the lower Court, as well as the notice of appeal and the arguments of Counsel to the parties in this appeal, it is the view of this Court that there is only one issue for determination in this appeal. It is:
Whether, on the strength of the pleadings and the evidence before it, the lower Court was correct when it found that the Respondent made out a credible case to warrant the granting of its claims.

This appeal will be resolved under this singular issue for determination and the arguments of Counsel to the parties in their respective briefs of arguments will be considered under the issue for determination.

In deliberating on the case presented by the parties, the lower Court stated in the judgment thus:
“The crux of the case for the plaintiff is that they completed the project within the time limit stipulated but that the defendant had failed to pay the contract sum balance of N12,968,645.85 …

despite letters of defendant sent and promises by the defendant to pay the outstanding sum. Exhibit A2, A3, A4, A6, A8 and A10 were letters of demand written to the defendant, while Exhibits A5, A7 and A9 were letters written to the plaintiff in response to the plaintiff’s letters.
It is pertinent to note that even though the defendant filed a statement of defence dated 7th of January, 2016 together with a list of documents to be relied on and a list of witnesses to be called, both dated the same 7th of January, 2016, yet the defendant did not call any evidence but instead chose to rest its case on that of the plaintiff. As rightly submitted by learned Counsel for the plaintiff in his final written address … that averments in pleadings prove nothing at all if not supported by evidence, unless it is admitted by the opposing party in a case… In the circumstances therefore, I shall consider the evidence by the plaintiff with a view to determining whether they have proved their case as required by law.”

The lower Court thereafter traversed through and evaluated the oral and documentary evidence led by the Respondent and it

found that the issue of the execution and completion of the contract was never in dispute between the parties and that, though contract sum was said to be provisional in the contract and subject to adjustment, there was no evidence of the sum to which it was adjusted, if it was adjusted at all and that the evidence led showed that the 5% retention fee was already due and payable at the time the action was commenced. The lower Court continued thus:
“On the whole, I hold that the plaintiff had proved its case on a balance of probabilities as required by law. As earlier stated in this judgment, even though the defendant had filed a statement of defence but they did not call any evidence but instead opted to rest their case on that of the plaintiff. Having held that the plaintiff had proved its case and with no evidence on the side of the defendant, the plaintiff is entitled to judgment.”

These are the findings that the Appellant has taken umbrage against in this appeal. The Appellant did file a statement of defence dated the 7th of January, 2016 and it prefaced the statement of defence thus:
“Take notice that the Defendant

shall on or before the date fixed for the hearing or for the conduct of any business in this suit take a preliminary objection to the competence of the suit and the reliefs sought on the grounds that no cause of action has arisen in favour of the Plaintiff before the commencement of this suit against the Defendant, and shall apply for the entire suit to be dismissed.”

The Appellant thereafter, in the alternative, pleaded and averred facts in its defence. Thus, contrary to the assertions of Counsel to the Appellant, the facts pleaded in the statement of defence were not averred in support of the proposed preliminary objection, but as an alternative to the preliminary objection. It is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should not be imported into them – The Northern Assurance Co. Ltd Vs Wuraola (1969) LPELR 25562(SC), Ogbunyiya Vs Okudo (1979) 6-9 SC 32, Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385.

Further, and very importantly, the Appellant averred in the prefacing statement that it would take out the preliminary objection “on or before the date fixed for the hearing or for the conduct of any business in this suit”. The records of appeal show that neither the Appellant nor its Counsel took out, moved, argued or sought the leave of the lower Court to move or argue the proposed preliminary objection either on or before the date fixed for the hearing or for the conduct of any business in this suit. The whole essence of a preliminary objection, as the name implies, is to stop in limine the hearing of a matter on the merits. It thus takes precedence and should be taken first and dispose off before taking further steps in the matter – Yaro Vs Arewa Construction Limited (In Receivership) (2007) 6 SCNJ 418, Arueze Vs Nwaukoni (2019) 5 NWLR (Pt 1666) 469, Amah Vs Federal Republic of Nigeria (2019) 6 NWLR (Pt 1667) 160, Mustapha Vs Corporate Affairs Commission (2019) 10 NWLR (Pt 1680) 355. By failing to argue the preliminary objection prior to the hearing of the matter on the merits, the position of the law is that the Appellant will be deemed to have

abandoned the preliminary objection – Nsirim Vs Nsirim (1990) 3 NWLR (Pt 138) 285, Tiza Vs Begha (2005) 15 NWLR (Pt 949) 616, Onochie Vs Odogwu (2006) 6 NWLR (Pt 975) 65, Carew Vs Oguntokun (2011) 5 NWLR (Pt 1240) 376. In other words, the Appellant conceded to the lower Court hearing the matter on the merits, and on the strength of the facts he pleaded in the statement of defence, in the alternative to the preliminary objection. Thus, the entire argument of Counsel to the Appellant in this appeal on the failure of the lower Court to consider the case of the Appellant on the preliminary objection is baseless.

The Appellant did not call a witness to give evidence in proof of the facts averred in its statement of defence. It is trite that pleadings do not amount and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them – Oguejiofor Vs Siemens Ltd (2008) 2 NWLR (Pt 1071) 283 and Nika Fishing Co. Ltd Vs Lavina Corporation (2008) 16 NWLR (Pt 1114) 509. Where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings – Omoboriowo Vs Ajasin

(1984) 1 SCNLR 108, Idesoh Vs Ordia (1997) 3 NWLR (Pt 491) 17, Dingyadi Vs Wamako (2008) 17 NWLR (Pt 1116) 395. In Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409, the Supreme Court made the point thus:
“… pleading is not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. Thus a party who seeks judgment in his favor is required by law to produce adequate credible evidence in support of his pleadings and where there is none, then the averments in his pleadings are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him.”
Where a defendant fails to prove the averments in his pleadings, he did not take the necessary steps to join issues with the claimant in respect of the averments in the statement of claim and the statement of claim remains unchallenged – Okoebor Vs Police Council (2003) 12 NWLR (Pt 834) 444, Asika Vs Atuanya (2008) 17 NWLR (Pt 1117) 484. Also, the effect of a defendant’s failure to call evidence in defense of the claims against him at the trial

is that he is presumed to have admitted the case made against him by a claimant – Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt 1002) 316.
It is correct that failure of a defendant to lead evidence on his pleading does not translate to automatic victory for a claimant. This is because a claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claim to prove his claim – Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt 960) 160 and Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt 1057) 218. However, the law is that in such circumstances, the onus of proof on a claimant will be discharged on minimal evidence as there is no evidence to put on the other side of the imaginary scale – Nwabuoku Vs Ottih (1961) 2 SCNLR 232, Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt 109) 352, Balogun Vs United Bank for Africa (1992) 6 NWLR (Pt 247) 336, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Adewuyi Vs Odukwe (2005) 14 NWLR (Pt 945) 473.

Counsel to the Appellant argued in his brief of arguments that there is a difference between when a defendant fails to call evidence and when a defendant rests his case on a plaintiff’s case, and that the earlier situation reduces the burden of proof on the plaintiff to minimal proof while the latter situation puts the burden solely and strongly on the plaintiff and he canvassed that the lower Court applied the wrong scale of justice and hinted that the Appellant’s right to fair hearing was breached. With respect to Counsel, his entire argument on the point is very incorrect. Commenting on similar arguments, the Supreme Court, in the case of Ahmed Vs Registered Trustees of Archdiocese of Kaduna of the Roman Catholic Church (2019) 5 NWLR (Pt 1665) 300, held thus:
‘Pleadings are suggestions of Counsel. They are not receivable as or tantamount to evidence. Averments in pleadings, unless admitted by the opposite party must be established by evidence, failing which they would be discountenanced as unsubstantiated, for they cannot be construed as evidence.
The effect of a failure to lead evidence in support of any

averment in a pleading is that the averment or pleading is deemed abandoned. In other words, pleadings that have not been established by credible evidence are deemed abandoned. They go to no issue. A party has a choice in the mode and manner of conducting its defence in a suit. What is paramount is that the trial Court must have afforded all parties equal opportunity to present or defend their cases. In the instant case, the appellants elected not to call evidence and rested their defence on the case of the respondent. As rightly held by the lower Court, the effect of failure to lead evidence on averments is that the pleadings are deemed abandoned. This is not a new law, and cannot by stretch of imagination amount to a breach of fair-hearing. The trial Court did not deny the right to the appellants; if at all, the appellants ‘denied’ the rights to themselves.’
In other words, there is no difference between when a defendant fails to call evidence and when a defendant rests his case on a plaintiff’s case. In the case of Inua Vs First Bank of Nigeria Plc (2016) 2 NWLR (Pt 1495) 89 at 110 B-E, this Court reiterated the position thus:

“The respondent filed an amended statement of defence at the lower Court on 10/11/2011, but failed to testify in proof of the averments therein. Upon close of the case of the appellant at the lower Court, learned counsel to the respondent had notified the trial Court that the respondent did not intend to call any witnesses… The implication of this decision is that the averments of the pleadings of the respondent are deemed abandoned. It is trite that in the absence of any evidence given in respect of an averment in a pleading, such averment will be deemed abandoned. This is simply because pleadings do not constitute or amount to evidence. A defendant, as in the instant case, who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted and rested his case on the facts adduced by the plaintiff …” The only known exception to this position of the law that says that where a defendant fails to call a witness to give evidence his pleadings will be deemed abandoned, is where the defendant has elicited sufficient evidence under cross examination of the

plaintiff’s witnesses in proof of the facts of his defence. In such a situation, the defendant will not be deemed to have abandoned his pleadings. The law is that cross examination is part of the proceedings and where evidence elicited under cross examination is relevant and direct, such evidence cannot be ignored – Ogbeide Vs Osula (2004) 12 NWLR (Pt.888) 86, Maduka Vs Anyadiegwu (2014) LPELR 23751(CA). In Akomolafe Vs Guardian Press Ltd (2010) 3 NWLR (Pt.1181) 338 at 351, the Supreme Court, per Onoghen JSC (as he then was) made the point thus:
“it is settled law that evidence elicited from a party or his witness(s) under cross examination which goes to support the case of the party cross examining constitute evidence in support of the case of the defence of that party. If at the end of the day the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not

evidence as the evidence elicited from his opponent under cross examination which are in support of his case or defence constitute his evidence in the case”.

In the present case, reading through the averments in the statement of defence of the Appellant, the highlights were (i) that the contract sum was not absolutely agreed at N37,982,490 and that same was open to possible review; (ii) that the Appellant had not received a complete valuation certificate from the Project Quantity Surveyor as agreed before the Respondent started demanding for full payment; (iii) that the Appellant was not owing the Respondent the sum of N14,978,018.00 as claimed and that the sum claimed did not take care of VAT and Withholding Tax deductable therefrom; and (iv) that the 5% retention fee was not due and payable. Traversing through the evidence of the Respondent’s witness under cross examination, it is very clear that the evidence elicited there under were not sufficient to establish or prove any of these highlights of the Appellant’s defence.

It is correct that there was evidence that there was an attempt to review the contract sum, but no evidence

was given of the reviewed sum so as to displace the contract sum of N37,982,490 pleaded and led in evidence by the Respondent and which was stated on the face of the letter of offer, Exhibit A. The case of the Appellant did not thus come under the exception to the general position of the law on failure to call evidence in support of pleadings. What Counsel to the Appellant sought to do in this appeal is to, through the guile of advocacy, use forensic magic to breathe life into dead pleadings which he personally disemboweled before the lower Court. The reality is that miracles do not happen in litigation, at least not in our adversary system.

The question before the lower Court in the instant case was whether, in view of the Appellant’s abandonment of his pleadings in defence, the Respondent led the required minimal evidence to discharge the onus on him to prove its case. The lower Court evaluated the evidence led by the Respondent and found that the Respondent discharged the onus of proof on it. The complaint of the Appellant in this appeal is against this evaluation of evidence carried out by the lower Court.

Now, it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289.
Thus, for an appellate Court to interfere with the evaluation of evidence carried out by a lower Court

and embark of a re-evaluation of the evidence led by the parties, an appellant must visibly demonstrate the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.

The contentions of the Appellant against the evaluation of evidence carried by the lower Court were (i) that the lower Court ought not to have evaluated the documents tendered by the Respondent as Exhibits A2 to A10, particularly the letters of the

Appellant, Exhibits A5, A7 and A9, in making its findings; (ii) that the lower Court erred in coming to the conclusion that the contract was completed without the Respondent presenting the Project Manager’s Certificate of Completion.
The first contention of the Appellant was predicated on two grounds – (i) that the letters of the Appellant, Exhibits A5, A7 and A9, were written in the process of settlement and compromises of a dispute, they were thus not admissible in evidence, even without objection; and (ii) that since the letters, Exhibits A2 to A10, did not form part of the contract between the parties which were constituted by the letters of offer and acceptance tendered as Exhibits A and A1, the lower Court ought not to have relied on them in making its findings. Exhibits A2, A3, A4, A6, A8 and A10 were letters of demand written by the Respondent and its Counsel to the Appellant. In the letters, the Respondent and its Counsel asserted that the Respondent had completed the contract awarded by Exhibits A and A1 as agreed and demanded for the total sum of N14,978,018.00 as the outstanding balance due and payable on the agreed contract sum

plus the 5% retention fee which had become due.

Exhibits A5, A7 and A9 were the responses of the Appellant to the Respondent’s letters of demand. Exhibit A5 was dated May 28, 2015 and it read thus:
“AWARD OF CONTRACT TO TEC ENGINEERING LIMITED FOR CONSTRUCTION OF ENTRANCE AND SECURITY GATE
We refer to your letter of May 2, 2015 and apologize for the delay in responding thereto.
We have enjoyed a good relationship with your client (Tec Engineering Company Limited) and are desirous of finalizing our contractual relationship with them on a good note. Towards this end, we had explained to them that we are in the process of concluding the refinancing of our project loans and this process was to have been finalized by end of May, 2015. We hoped to include a cheque in part liquidation of the outstanding when responding to your letter.
Unfortunately, the refinancing process has taken longer than expected but we expect that it will be finalized by mid-July 2015.
May we therefore crave your indulgence till mid-July when we expect to commence settlement of our financial obligations to your client.”

Exhibit A7 was dated July 29, 2015 and it read thus:
“RE: DEMAND LETTER ON CONTRACT WITH TEC ENGINEERING FOR CONSTRUCTION OF GATE HOUSE AT ADO BAYERO MALL
We refer to our letter of May 28, 2015 and your response dated July 30, 2015.
Unfortunately, we have not been able to conclude our refinancing within the timeline earlier advised but we expect that will be concluded in the coming weeks.
May we therefore kindly request that you accord us a little more time to commence repayment of the outstanding due to your client.”

Exhibit A9 was dated August 13, 2015 and it read thus:
“RE: DEMAND LETTER ON CONTRACT WITH TEC ENGINEERING FOR CONSTRUCTION OF GATE HOUSE AT ADO BAYERO MALL
We refer to your letter of August 4, 2015.
Due to the fact that the timing for conclusion of the refinancing negotiations lies substantially outside our control, we cannot give you a definite timeline.
However, our counterparties have indicated that finalization of the process may likely occur by end of September.
Based on the above, we will provide you an update by September 30, 2015.”

These are the letters that Counsel to

the Appellant said were written in the process of settlement and compromises of a dispute and were thus inadmissible in evidence and ought not to have been relied on by the lower Court. It is correct that an offer or admission made in a written document in the course of negotiation between parties to resolve a dispute is inadmissible against the party that made it in a subsequent litigation on the subject matter of the dispute, whether or not that document was marked “without prejudice”. In Ashibuogwu Vs Attorney General Bendel State (1988) 1 SC 248, Nnaemeka-Agu, JSC put the law thus:
“A statement made in the course of a negotiation of the compensation or the offer of such a compensation would, in my view, be analogous to a statement made “without prejudice” during a negotiation. The law has always taken the view that parties should speak freely in attempting a settlement of their disputes. That freedom of discussion will be seriously prejudiced if any offer or admission made in the process of the negotiation could be given in evidence and be used to support a party’s case in Court afterwards, should the negotiation

break down. Where such negotiations are made by written communication they are usually marked “without prejudice” and are inadmissible against the parties in that suit. But it is recognized that in some circumstances it is not essential that the words “without prejudice” should have been used: it may be implied that negotiations were conducted on this understanding… The learned authors of Phipson On Evidence (11th Ed) put it thus … ‘Offers of compromise made expressly or impliedly ‘without prejudice” cannot be given in evidence against a party as admissions; the law on grounds of public policy, protects negotiation bona fide entered into for the settlement of disputes.’ The privilege is, however that of the parties.”
This statement of law was reiterated by the Supreme Court in Fawehinmi Vs Nigeria Bar Association (No. 2) (1989) 2 NWLR (Pt 105) 558 and Ashakacem Ltd Vs Asharatul Mubashshurun Investment Ltd (2019) 5 NWLR (Pt 1666) 447 and by this Court in Akanbi Vs Alatede (Nig) Ltd (2000) 1 NWLR (Pt 639) 125, Kolo Vs First Bank of Nigeria Plc (2003) 3 NWLR (Pt 806) 216, Ibiyeye Vs Gold (2011)

LPELR-8778(CA) and Acmel Nigeria Ltd Vs First Bank of Nigeria Plc (2014) 6 NWLR (Pt 1402) 158. This principle was given a partial statutory imprimatur in Section 196 of the Evidence Act which reads “a statement in any document marked “without prejudice” made in the course of negotiation for a settlement of a dispute out of Court, shall not be given in evidence in any civil proceeding in proof of the matters stated in it.
The letters in question, Exhibits A5, A7 and A9, were not marked “without prejudice” and, whether marked or not, it is settled that for them to qualify for the protection of the law, they must have been made in the course of negotiation of a dispute and contain admissions or offers made to compromise the dispute – United Bank for Africa Plc Vs I.A.S. Company Ltd (2001) FWLR (Pt 75) 578, University of Abuja Vs AMCON (2019) LPELR 47306(CA). A read through the above reproduced contents of the three letters shows that they were not made for the purpose of negotiating the demand of the Respondent and they did not contain any admission or offer of compromise of the sum demanded by the Respondent. They only

sought for time to settle the demand of the Respondent. They were thus admissible evidence and they were rightly admitted by the lower Court.
It was not in contest that that the letters, Exhibits A2 to A10, were relevant to the resolution of the claims of the Respondent and they were presented in admissible form and were admitted by the lower Court.

It is settled law that in evaluating evidence, a trial Court must consider all admissible evidence tendered by a party which is relevant and useful to the issues arising for resolution from the subject matter of litigation. There can be no proper review and evaluation of evidence, when the trial Court disregards or fails to refer to or consider in its judgment, part of the evidence of a party, and reaches conclusions without reference to the evidence that supports such a conclusion – Mogaji Vs Odofin (1978) 4 SC 91, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Okoko Vs Dakolo (2006) 14 NWLR (Pt 1000) 401, Onwugbelu Vs Mezebuo (2013) LPELR 20401(CA), Amaefuna Vs Okoli (2014) LPELR 23755(CA). In Ekweozor Vs Registered Trustees of Saviour’s Apostolic Church of Nigeria (2020) LPELR

49568(SC), the Supreme Court made point thus:
“In rendering its decision over a particular dispute, the primary duty of the Court is to fully consider conscientiously the totality of the evidence of the parties based on the issues in dispute before handing down its decision. The facts of each constituted in the evidence before the Court, are important in determining the issues and the outcome of the case. They guide the Court in the eventual outcome of the case.”

The lower Court was under a duty to consider and to accord proper probative value to the letters in the course of evaluation of the evidence. It is clear from the above reproduced contents of Exhibits A5, A7 and A9 that the Appellant neither contested the assertion of the Respondent in the letters of demand that it had completed the contract awarded by Exhibits A and A1 as agreed nor the sum of N14,978,018.00, inclusive of the 5% retention fee, demanded as the outstanding balance due and payable on the agreed contract sum.

It is settled law that where a creditor writes letters of demand to a debtor requesting settlement of debt and the amount of the debt is contained in

each letter and the debtor does not query the respective figures written in the letters as the debt due, the debtor will be deemed to have impliedly admitted the quoted figures as the amount of debt due – I.O.M. Nwoye & Sons Company Ltd Vs Co-operative and Commerce Bank (Nig) Plc (1993) 8 NWLR (Pt 310) 210, Nagebu Co. (Nig) Ltd Vs Unity Bank Plc (2014) 7 NWLR (Pt 1405) 42, Tilley Gyado & Co (Nig) Ltd Vs Access Bank Plc (2019) 6 NWLR (Pt 1669) 399. The lower Court was thus correct in using the contents of the letters to debunk the assertions of the Appellant on the lack of proof of completion of the contract, uncertainty of the sum claimed and of the 5% retention fee still being inchoate. The first contention of the Appellant against the evaluation of evidence carried out by the lower Court is totally misconceived.

The second contention of the Appellant was that the lower Court erred in coming to the conclusion that the contract was completed without the Respondent having produced in evidence the Project Manager’s Certificate of Completion. Counsel to the Appellant predicated this contention on Clause 6.0 of the letter of offer,

Exhibit A, which defined Defects Liability Period as “six months after practical completion certified by the project manager”. Counsel stated that since the Respondent’s witness testified under cross examination that he did not have the Certificate of Completion issued by the Project Manager, it meant that there was no proof that the contract had been completed to entitle the Respondent to the sum claimed. Now, as stated in the earlier part of this judgment, the duty of a Court in interpreting the contents of documents is to give the wordings there their simple, literal and grammatical meaning and anything not stated on the face of the document should not read into the document.

A read through the contents of Clause 6.0 of the contract shows that it was not stated therein that the certification of the practical completion of the contract by the Project Manager must be in writing so as to warrant the issuance of a written Certificate of Completion by the Project Manager and no evidence was given otherwise. Also, there was no evidence that a Project Manager was indeed appointed for the contract and the name of the Project Manager so as to

ascertain that the certification of the practical completion of the contract by the Project Manager was really of essence of the contract. The lower Court was thus on firm ground when it relied on the unchallenged pleadings and evidence of the Respondent, together with the inference derivable from the letters of the Appellant, in coming to the conclusion that the contract was executed and completed by the Respondent. The castle built by Counsel to the Appellant on the non-production of a written Certificate of Completion by the Project Manager was erected of quicksand and it is a mirage. The second contention of the Appellant against the evaluation of evidence carried out by the lower Court was also totally misconceived.

Counsel to the Appellant has not given this Court any reason to tamper with the evaluation of evidence carried out by the lower Court. This appeal has no iota of merit. It is frivolous and vexatious and it is hereby dismissed. The judgment of the High Court of Kano State in Suit No K/409/2015 delivered by Honorable Justice Yusuf Ubale Muhammad on the 9th of January, 2018 is affirmed. The Respondent is awarded the costs of this

unnecessary appeal in the sum of N200,000.00. These shall be the orders of the Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance the leading Judgment of my learned brother Abiru JCA just delivered. Unless an Appellant is able to impeach the findings of facts by a trial Court, in that it did not evaluate or did not properly evaluate the evidence led before it, resulting in a miscarriage of justice, an Appeal Court cannot interfere – EMEKA VS. STATE (2019) 2 SCNJ (PT. 11) 467 AT 489. I therefore agree with the reasoning and conclusion reached in the leading Judgment that this appeal has no merit. I dismiss it.
I abide by the Order as to costs.

AMINA AUDI WAMBAI, J.C.A.: I read before now a draft copy of the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA with whom I am in complete agreement that there is no merit in this appeal. I too dismiss the appeal and abide the order as to cost.

Appearances:

A. Iroagalachi, with him, V. C. Iroagalachi For Appellant(s)

S. Gezawa, with him, Labaran AbdulMummin and E. E. Ochojila For Respondent(s)