BIKAY ENGINEERING LTD. V. GOVERNOR ONDO STATE & ORS.
(2013)LCN/6308(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of June, 2013
CA/B/87/2009 (2)
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
BIKAY ENGINEERING LTD. Appellant(s)
AND
1. GOVERNOR, ONDO STATE
2. COMMISSIONER FOR LANDS & HOUSING AND TRANSPORT ONDO STATE
3. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE ONDO STATE Respondent(s)
RATIO
WHETHER OR NOT HE WHO ASSERTS BREACH OF CONTRACT MUST PROVE THE SAME
A party seeking to enforce rights under a contract must show that all that was needed to be fulfilled by it had been fully performed. All such terms requiring to be performed are conditions precedent to the enforcement of any right thereunder.Therefore the onus is on the party who asserts breach of contract to prove same before the burden will shift to the other party. In the instant appeal the Appellant had failed to discharge the primary burden of proof that the Respondents had breached any of the terms of any of the contracts that appear to have been made by the parties. See EZENWA V. EKONG (1999) 11 NWLR (Pt. 625) 55. PER GUMEL, J.C.A.
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court, Akure Division delivered on 28th October, 2008 in Suit No. AK/233/2005.
In an amended statement of claim dated and filed on 20th October, 2005, the Appellant as the plaintiff claimed as follows:-
“The plaintiff’s claim against the Defendant (sic) jointly and/or severally is for the sum of N100,000,000 (One Hundred Million Naira) being special and general damages for the (sic) breach. The Defendants on an agreement with the plaintiff dated the 1st day of February, 2002 awarded the design, supervision and contract management for the rehabilitation of Ilutitun – Omotoso Road, Ondo State of Nigeria to the plaintiff. The Defendants had refused and/or neglected the fulfill the contract despite repeated demands.”
(See page 7 record of appeal)
In a statement of defence dated 17/01/2006 but filed 19/01/06, the Defendants, while admitting some of the paragraphs of the statement of claim denied others and while putting the Plaintiff/Appellant to the strict proof of all those denied averments, urged on the lower court to dismiss the claim in the action for being frivolous, vexatious and an exercise in gold – digging.
Against the statement of defence of only 18 paragraphs, the Plaintiff/Appellant responded with a 54 paragraph reply, which was later amended and seemingly filed on 17/11/2006. Issues having been duly joined and pleadings concluded, the matter went to trial. At the trial, the Managing Director of the plaintiff/appellant gave oral evidence in support of its claim. A number of documents were also tendered and admitted in evidence through him. It was after his evidence that the Appellant closed its case. For the defence, 2 witnesses gave oral evidence at the end of which they also closed their case. Respective learned counsel to the parties each addressed the court.
In its judgment, the lower court observed and decided thus:-
“From the totality of the evidence adduced in this case the Plaintiff has failed to discharge the burden of proof placed on it in this case. It has also failed to establish the fact that it is entitled to any damages in its claim for the alleged breach of contract. Consequently, I find no merit withsoever in the present case and same is hereby dismissed.”
(See lines 1 – 5 at P.69 of record of appeal).
The Appellant was dissatisfied with this judgment and upon an application dated and filed on 17/10/2011, the Appellant was granted extension of time by this court to appeal whereupon it filed a notice of appeal dated 5/12/2011. The order for extension of time was made on 31/11/2011. This notice contains 4 grounds of appeal.
To argue the appeal, respective learned counsel filed briefs of argument. The Appellant’s brief formulated and argued 4 issues for the determination of this appeal. They are:-
“1. Whether there was a contract between the APPELLANT And the RESPONDENT
2. Whether there was a breach of contract by the RESPONDENT
3. Whether there was a demand by the APFELLANT to the RESPONDENT for damages arising from the breach of contract by the RESPONDENT
4. Whether by virtue of the breach by the RESPONDENT the APPELLANT is entitled to damages.”
The Respondents adopted the 4 issues formulated and argued on behalf of the Appellant.
At the hearing of the appeal respective learned counsel identified, adopted and relied on their briefs of argument. While learned counsel to the Appellant urged on the court to allow this appeal, set aside the judgment of the trial court and proceed to give judgment as per its claim, learned counsel to the Respondents urged on the court to dismiss the appeal and affirm the judgment of the trial court.
In arguing the 1st issue, learned Counsel to the Appellant began by pointing out that series of documents were tendered and admitted in evidence during the trial of this matter. He identified those documents as Exhibits A, B, C, C1, D, E – E4, F, G – G1 and H – H1. He added further that these documents were adduced in evidence in support of the pleadings and to prove that there is a contract between the Appellant and the Respondents. Learned Counsel went on to describe the nature and type of contractual relationship between the Appellant and the Respondents. Upon this background, learned Counsel referred to some of the documentary exhibits and explained their contractual scope and obligations of the parties thereto.
While referring to the decisions in HARRISON OKECHUKWU V. ONUORAH (2000) 12 SC Pt, II 104 at 109 and AFROTECH TECHNICAL SERVICES NIG. LTD. V. MIA & SONS LTD. (2000) 12 SC PT.II 1 at 15, learned counsel explained that where parties agree in a solemn contract, they are supposed to fulfill all the conditions therein faithfully and honestly. He also added and explained further that parties who enter into a contract are expected to honour its terms. According to learned Counsel these decisions also emphasized that a party who induced the other party to enter into a contract which provides benefits for the inviting party which he has utilized without complaint he cannot be heard to deny the validity of that contract. Against this explanation and decisions, learned Counsel urged to the Court to find that from all the proven interactions between the parties and the various documents adduced in evidence there exists a contract between the Appellant and the Respondents.
At this stage, I need to observe and point out what I consider as a strange situation foisted on this Court by learned Counsel to the Respondents. At paragraph 3.1 on page one of the Respondents’ brief, it was set out thus: –
“The Respondents agrees (sic) with the issues formulated by the Appellant.”
At paragraph 4.0, learned counsel set out his issue one thus: –
“Whether the trial judge was right in holding that there was no breach of contract on the part of the Respondents.”
He proceeded to argue same at pages 2 to 4 of the brief. Also, at paragraph 4.5 on page 4 of the brief learned Counsel set out his issue 2 thus: –
“Whether the Appellant was entitled to damages.”
He proceeded to argue this issue at pages 5 to 6 of the brief.
It must be observed that 4 issues were formulated and argued on behalf of the Appellant. The 2nd issue formulated by learned Counsel Mr. Akinnibosun on behalf of the Respondents appears to be the srne with issue 4 in the Appellant’s brief of argument. What learned counsel to the Respondent, Mr. Akinnibosun, succeeded in doing, to say the least is grossly misleading and unbecoming. It is most embarrassing and unprofessional.
Having not answered the question raised and argued by learned Counsel to the Appellant under his issue one, learned Counsel to the Respondent must be taken to have conceded the point that there is a contract between the Appellant and the Respondents. Added to this, is the abundant evidence led at the trial tending to show the existence of some contractual relationship between the Appellant and the Respondents. Therefore this issue must be resolved in favour of the Appellant and it is accordingly so resolved.
In arguing his 2nd issue learned Counsel began with an explanation that the appellant fully discharged its obligations with respect to the contract in Exhibit A for the survey, design and preparation of Bill of Engineering Measurements and Evaluations. He added further that it was because of the completion of this contract that the respondents were able to award the main contract for the construction of the Ilutitun – Omotosho Road to Samchase Company Limited. Learned counsel argued that it was also because of the award of the construction contract that the consultancy contract was awarded to the Plaintiff/Appellant as shown in Exhibits C and C1. According to learned Counsel it was a breach of contract for the Respondents to refuse to honour the Appellant’s claim and Boll for reimbursables and the report for completion of work on the first phase of the contract. He pointed out that nothing was paid to the Appellant, apart from N2,650,000 out of the outstanding N72,500,000 due to be paid on the contracts. It is also the submission of learned counsel that Exh. F is a reminder to the Respondents of their various actions tending to show a breach of contract in the form of failure to pay for services rendered. In detailing the circumstances showing breach of contract, learned Counsel pointed out that it arose when the Appellant complied with the instrument given to it in Exh. B performing it fully and informed the Respondents. He also added that failure to pay 25% of N48.5 Million (i.e. N12,125,000) for supervision and part of the N24 Million earmarked for reimbursables are all hallmarks of a breach of contract. In conclusion, learned counsel referred to IWEKA V. SCOA (NIG.) LTD. 15 WRN 106 at 113 where the Supreme Court decided that in an action for breach of contract, the cause of action accrues for the Plaintiff’s benefit from the time the breach was committed and not when the damage began to be suffered. He urged on this Court to so hold and resolve this issue against the Respondents.
In his response, learned Counsel pointed out that Exh. F cannot be used as a barometer in determining whether there was any breach of contract. He described this Exh. F as a letter of demand for payment written and addressed to the Respondents by the Appellants’ Solicitor. While still mindful of this Exh. F, learned Counsel to the Respondents submitted that the Appellant woefully failed to establish any breach of contract because Exh. F predated the date of completion of the project envisaged in the contract between the Appellant and the Respondents. He argued that the learned trial judge was right to so hold.
On the issue on non-payment for reimbursables, learned Counsel explained that these payments could not be made as a matter of course but only upon the fulfillment of all the conditions under the contract. He referred to the evidence of DW2 to show what conditions were to be satisfied and what procedures to be followed before all such sums could be due for payment. According to learned counsel there were no pleadings in the claim of the Appellant tending to show any fulfillment of any of the necessary conditions. To reinforce this submission learned Counsel referred to TSOKWA OIL MARKETING CO. NIG. LTD. V. BANK OF THE NORTH LTD. (2002) 8 SCM 159 at 162 where the Supreme Court held that once a condition precedent is incorporated into an agreement that condition must be fulfilled before the effect can flow. He also referred to FED. GOVT. OF NIG. V. ZEBRA ENERGY LTD. (2002) FWLR (Pt 92) 1749 at 1755 which was similarly decided by this Court.
It was also argued by learned counsel that it was Fatal to the case of the Appellant to fail to plead and prove fulfillment of all the conditions envisaged by the contract to be entitled to payment for services rendered thereunder. Learned Counsel emphasized that it was the duty of the Appellant to establish its case as it is not the duty of the Court to make a case for it. According to learned counsel it was this woeful failure of the Appellant to plead adequate facts and prove same that led the trial Court to dismiss the case of the Appellant, he urged this Court to so hold and decide this issue against the Appellant.
In deciding this issue, the lower Court found against the Appellant. With respect to the first contract for design as contained in Exh. A, the learned trial judge observed and remarked that there was no evidence before him as to the cost of the contract apart from the proof of payment of mobilization fee. This finding has so far remained unchallenged in this appeal. Further, and with respect to the consultancy contract for supervision and maintenance, the learned trial judge observed and decided thus:-
“In respect of the second phase of the contract between the parties, the terms of the agreement are as encapsulated in exhibits C-C1, D, E- E4; G-G1 and H – H1. The contract which was executed on 1st February, 2002 was for consultancy period of thirty-six months and maintenance period of twelve (12) months. Thus the contract was to terminate sometime in January, 2006. However, there is no evidence before the Court to show the steps which the Plaintiff took after the completion of the contract to demand for payment. The only document in relation to any demand for payment by the Plaintiff is the letter written by its Solicitor to the Defendants dated 26th August, 2005. This letter predates the period for the completion of the contract.”
See lines 20 – 30 at page 67 of the record of appeal)
Further to this finding the lower Court further held that:-
“…….there is no evidence before the Court that the Plaintiff complied with the conditions for payment of reimbursible fee or that there was demand made by it for the payment of the reimbursable fee.”
(See lines 1 – 3 page 68 of record of appeal).
The complaint of the Appellant is about breach of contract. According to the Supreme Court in PAN BISBILDER (NIG) LTD. V. FIRST BANK (NIG.) LTD. (2000) 1 SC 71, a breach of contract means the party has acted contrary to the terms of the contract either by non-performance of a term or performing it not in accordance with its terms. In an action for breach of contract, it is necessary for a Plaintiff to plead facts showing the existence and subsistence of a valid contract as well as its express or implied terms. It is also necessary to show what or which of its terms was breached and in what manner, i.e. particulars of breach.
A party seeking to enforce rights under a contract must show that all that was needed to be fulfilled by it had been fully performed. All such terms requiring to be performed are conditions precedent to the enforcement of any right thereunder.
Therefore the onus is on the party who asserts breach of contract to prove same before the burden will shift to the other party. In the instant appeal the Appellant had failed to discharge the primary burden of proof that the Respondents had breached any of the terms of any of the contracts that appear to have been made by the parties. See EZENWA V. EKONG (1999) 11 NWLR (Pt. 625) 55.
After an overview of the entire pleadings and the evidence adduced by the parties, it does not appear that there is any way the observations and remarks of the learned trial judge at page 68 of the record of appeal and reproduced above can be otherwise. The findings and conclusions are irresistible and cannot be faulted. I am of the view that the learned trial did a correct review and evaluation of all the evidence on record and came to the correct decision. I do not think that learned counsel to the Appellant has shown any good reasons why this Court should interfere with any of those findings on Exh. F and claim on failure to pay for reimbursibles. I do not see any of those findings as being unreasonable or perverse in the circumstance. Issue 2 must be resolved against the Appellant and in favour of the Respondents. This decision on issue 2 that it is not possible to hold that the Respondents are in breach of contract in the circumstances of this appeal has subsumed any decision on issue 3 formulated on behalf of the Appellant, A decision on it is not necessary. Also, a decision on issue 4 would be academic and totally unnecessary.
Issues 2 and 3 having been resolved against the Appellant and a decision on issue 4 being totally unnecessary, this appeal ought to be dismissed and is hereby accordingly dismissed. The judgment of the Ondo State High Court delivered on 28/10/2008 in Suit No. AK/233/2005 is hereby upheld and affirmed. Suit No. AK/233/2005 is dismissed.
PRONOUNCEMENT BY ALI ABUBAKAR BABANDI GUMEL, J.C.A.: My learned brother K.M.O. Kekere-Ekun, JCA Presided the panel at the hearing of this appeal. He subsequently participated at the conference that led to the judgment just delivered by me. He agrees that this appeal be dismissed, and abide by all the consequential orders in the lead judgment.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Ali A. B. GUMEL, JCA just delivered. I agree entirely with all the reasoning and conclusions of His Lordship. I adopt them as mine.
I abide by all the consequential orders of His Lordship as well as the order regarding cost.
Appearances
Chief J. I. OguntoyinboFor Appellant
AND
Mr. F. S. Akinnibosun, Chief Legal Officer, Ondo State Ministry of Justice, AkureFor Respondent
