BIL CONSTRUCTION CO. LTD & ORS v. ADEDOYIN (2020)

BIL CONSTRUCTION CO. LTD & ORS v. ADEDOYIN

(2020)LCN/14885(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/L/748/2015

RATIO

APPEAL: POWER OF THE APPELLATE COURT TO REFORMULATE ISSUES FOR DETERMINATION

It is rudimentary law that a Court is free to either adopt the issues formulated by the parties or to formulate such issues as are consistent with the grounds of appeal. See LABIYI vs. ANRETIOLA (1992) 8 NWLR (PT 258) 139 at 199, DUNG vs. GYANG (1994) 8 NWLR (PT 362) 315 and ONWO vs. OKO (1999) 6 NWLR (PT 546) 584. Equally hornbook law is that a Court can, and is entitled to, re-formulate issues formulated by the parties in order to make for precision and clarity. In the words of Iguh, JSC in MUSA SHA (JNR) vs. DA RAP KWAN (2000) LPELR (3031) 1 at 20-21:

“…it is firmly settled that issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the Court after a consideration of those set out by the parties alongside the grounds of appeal filed. The Court of Appeal is at liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues or, as pointed out above, to reframe the issues by the parties if, in its view, such issues will not lead to a proper determination of the appeal. However, the issues framed, whether by the parties or by the Court, must at all times be related to the grounds of appeal filed.”
See also UNITY BANK PLC vs. BOUARI (2008) ALL FWLR (PT 416) 1825 at 1846-1847.
Accordingly, I will therefore take the liberty to reformulate the issues. It is my considered view that a sole expansive and dilatable issue, which encompasses the issues formulated by the parties and would in fact be cumulative with the said issues will suffice for the determination of this appeal:SANUSI vs. AMEYOGUN (1992) 4 NWLR (PT 237) 527 at 550-551 and NEKA B. B. B. MANUFACTURING CO. LTD v. A. C. B. LTD (2004) 17 NSCQR 240 at 250-251. PER ANTHONY OGAKWU, J.C.A.

JUDGE: UTMOST DUTY OF A TRIAL JUDGE

Now, a trial Judge is a peculiar adjudicator. Of all Judges the heaviest burden and responsibility of deciding a case rests with him. He normally hears a case by receiving evidence both oral and documentary from witnesses who appear before him in Court, are asked questions and cross examined. In the process, he engages himself to see, listen to and watch them testify. Not only that, his feelings and impressions are tested from time to time upon one issue or another when, apart from listening, he watches, he takes mental note of the performance of witnesses, their demeanour in the witness box, in particular how they react to questioning and the manner they give answers. Quite often, it is this that helps the trial Judge as to who and what to believe. The witnesses are telling him what he was not aware of before, the circumstances in which it happened and in respect of which both sides claim that their evidence represents the truth; and the trial Judge will have to take a decision. So if the trial Judge is up to the demands of his duty, he will continue to size up the witnesses in their oral testimonies. Is a particular witness lying or prevaricating or just slow in nature, or has he a peculiar idiosyncrasy? That is for the trial Judge to determine. When there are relevant documents, they serve as the touchstone against which the oral testimony can be tested, and so much of the demeanour of a witness may not quite matter: see OLUJINLE vs ADEAGBO (1988) 2 NWLR (PT 75) 238 at 254.
The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. It is rudimentary law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48.

The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. PER ANTHONY OGAKWU, J.C.A.

CONTRACT: RULE ON INTERPRETATION OF WORDS OF A CONTRACT BY THE COURT

The settled legal position is that where the words of a contract or agreement are clear, the words should be given their plain, simple, literal and natural meaning. See BERLIET NIG LTD vs. KACHALLA (1995) 12 SCNJ 147, OWENA BANK vs. NIGERIAN STOCK EXCHANGE (1997) 8 NWLR (PT 315) 15 and AMASIKE vs. THE REGISTRAR-GENERAL, CAC (2010) LPELR (456) 1 at 47 (SC). PER ANTHONY OGAKWU, J.C.A.

CONTRACT: ATTITUDE OF THE COURT TO MAKING CONTRACT FOR PARTIES

It is not the business of a Court to make a contract for the parties or to rewrite the contract which the parties had made: OYENUGA vs. PROVINCIAL COUNCIL, UNIVERSITY OF IFE (1965) NMLR 9. In the construction of documents, the words therein should first be given their simple and ordinary meaning. See UNION BANK vs. SAX NIG LTD (1994) LPELR (3390) 1 at 18-19 (SC). PER ANTHONY OGAKWU, J.C.A.

EVIDENCE: BEST PROOF OF THE CONTENTS OF A DOCUMENT

It is abecedarian law that a document tendered in Court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except in cases where fraud is pleaded. See Section 128 of the Evidence Act and the cases of A-G BENDEL STATE vs. UBA LTD (1986) LPELR (3163) 1 at 25, UNION BANK vs. SAX NIG LTD (supra) at 32, KOIKI vs. MAGNUSSON (1999) LPELR (1697) 1 at 42 and OGUNDEPO vs. OLUMESAN (2011) LPELR (1297) 1 at 15-16. PER ANTHONY OGAKWU, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

1. BIL CONSTRUCTION CO. LTD 2. KAMAL ABOU DIWAN 3. NOUHAD ABOU DIWAN 4. ALHAJI AHMED MOHAMMED APPELANT(S)

And

AKIN ADEDOYIN (Doing Business As Akin Adedoyin & Co.) RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent herein, an Accountant, was retained by the Appellants to reconcile the 1st Appellant’s accounts with the defunct Nigeria Universal Bank Limited and Access Bank Limited. The reconciliation assignment was duly carried out; after which the Respondent sent the reconciled figures to the Appellants, which showed savings on what the banks were claiming as due from the 1st Appellant. The Respondent thereafter forwarded his bill, being 10% of the total sum saved in favour of the 1st Appellant, to the Appellants for settlement.

The Appellants paid part of the amount billed by the Respondent, but later refused to pay the balance upon the ground that the Respondent had not earned the fees; whereupon the Respondent instituted proceedings at the High Court of Lagos State in Suit No. LD/1406/2008: AKIN ADEDOYIN (Doing business as AKIN ADEDOYIN AND CO) vs. BIL CONSTRUCTION COMPANY LIMITED & ORS. The Respondent claimed the following reliefs:
“The sum of N1, 506,601.93 (One million, five hundred and six thousand, six hundred and one

naira ninety-three kobo
The claimant also claims interest thereon, at the rate of 21% per annum from the 11th March, 2004 until judgment is delivered and thereafter at the rate or 15% until the whole sum is finally liquidated.”

Premised on the Appellants’ contention that the Respondent had not earned the fees, the 1st Appellant counterclaimed for the refund of the part-payment that was made to the Respondent as follows:
“WHEREUPON the 1st Counter Claimant Claims the refund of the sum of N1, 530,650.00 (One million, five hundred and thirty thousand, six hundred and fifty thousand [sic] naira) only being money collected for failed contract by the Defendant.”

Issues were joined on the pleadings filed and exchanged by the parties and the matter went to trial at which testimonial and documentary evidence was adduced. In its judgment which was delivered on 26th March 2015, the lower Court, Coram Judice: Oke-Lawal, J., entered judgment in favour of the Respondent and dismissed the Counterclaim. Peeved by the decision of the lower Court, the Appellants appealed against the same by Notice of Appeal filed on 27th May 2015. The

judgment of the lower Court is at pages 323-335 of the Records, while the Notice of Appeal is at pages 336-339 of the Records.

The Records of Appeal were compiled and transmitted and the parties filed and exchanged briefs of argument, which they adopted and relied upon at the hearing of the appeal. The Appellants’ Brief was filed on 16th March 2016 while the Respondent’s Brief was filed on 16th May 2016. Both briefs were deemed as properly filed on 2nd May 2018.

The Appellants nominated four issues for determination, namely:
1. Whether the trial Court was right when it held that the Claimant has shown a prima facie case and reasonably satisfied the Court that the fact sought to be proved is established.
2. Whether the trial Court properly evaluate(d) the evidence of the parties.
3. Whether the Respondent sufficiently discharged the onus of proof to warrant the shift to the Appellant.
4. Having led evidence to show that the Respondent collected money for work not done, whether the Appellant needed further evidence to prove his counter claim?

On his part, the Respondent crafted two issues for determination, as

follows:
1. Whether the preponderance of evidence in this matter favour the Respondent and the trial Court is right by holding that ‘the Claimant has show (sic) a prima facie case and reasonably satisfied the Court that the fact sought to be proved is established.
2. Looking at circumstances of the case, which of the parties failed to discharged [sic] the onus placed on him.

From the grounds of appeal and the issues distilled for determination by the parties, it is evident that the core of the complaint is on the evaluation of evidence and ascription of probative value thereto by the lower Court. It is rudimentary law that a Court is free to either adopt the issues formulated by the parties or to formulate such issues as are consistent with the grounds of appeal. See LABIYI vs. ANRETIOLA (1992) 8 NWLR (PT 258) 139 at 199, DUNG vs. GYANG (1994) 8 NWLR (PT 362) 315 and ONWO vs. OKO (1999) 6 NWLR (PT 546) 584. Equally hornbook law is that a Court can, and is entitled to, re-formulate issues formulated by the parties in order to make for precision and clarity. In the words of Iguh, JSC in MUSA SHA (JNR) vs. DA RAP KWAN (2000) LPELR (3031) 1 at 20-21:

NEKA B. B. B. MANUFACTURING CO. LTD v. A. C. B. LTD (2004) 17 NSCQR 240 at 250-251.

In order to conduce to clarity, precision and brevity, the sole issue for determination on the basis of which I will presently consider the submissions of learned counsel and resolve this appeal en bloc is:
Whether on the preponderance of evidence and balance of probability, the lower Court was right to enter judgment for the Respondent and dismiss the Counterclaim.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the lower Court misunderstood the facts which the Respondent was required to prove in order to succeed in an action based on the simple contract with the Appellants. It was asserted that the contract was not just to prepare audited or reconciliation accounts; but that the figures prepared have to be accepted by the banks, and where the matter is litigated, the Respondent would assist with the defence and the Court has to give judgment affirming the Respondent’s figures. The Appellants maintained that the banks did not accept the Respondent’s figures as a result of which the property used as collateral security was

sold by one of the banks and also judgment on admission was obtained against the 1st Appellant by the said bank.

The conspectus of the Appellants’ submissions on their second issue as distilled by them, is that the lower Court failed to properly evaluate the evidence and therefore reached a perverse decision. This Court was urged to rehear the matter in order to properly evaluate the evidence. The cases of ABUBAKAR vs. JOSEPH (2008) 160 LRCN 159 at 210-211, ADEGOKE vs. ADIBI (1992) 5 NWLR (PT 242) 410, LION BUILDINGS vs. SHADIPE (1976) 12 SC 135, DURU vs. NWOSU (1989) 4 NWLR (PT 113) 24 at 39, GBEMISOLA vs. BOLARINWA (2014) 234 LRCN 162, OSUJI vs. EKEOCHA (2009) 6-7 SC (PT II) 91 or (2009) 177 LRCN 134, UDENGWU vs. UZUEGBU (2003) 11 SC 135 or (2003) LRCN 1701 and AKINYEMI vs. ODUA INVESTMENT CO. LTD (2012) 210 LRN 180 at 208 and 209 were referred to.

It is the further submission of the Appellants that the onus is on the Respondent to prove his case, notwithstanding any weakness in the defence; and that it is only where reliable and credible evidence has been adduced by the Respondent that the burden will shift to the Appellants. The case of

WOLUCHEM vs. GUDI (1981) SC [no Volume stated] 291 and AGU vs. NNADI (2002) 18 NWLR (PT 798) 103 were relied upon. It was maintained that the Respondent did not prove that his reconciled figures were accepted by the banks.

The Appellants’ issue number four is in respect of their Counterclaim, which was dismissed by the lower Court. It is the contention of the Appellants that the Respondent having admitted that he collected the sum of N1.5 million for work not done, that the Appellants’ Counterclaim for the refund of the said amount ought to succeed as what is admitted needs no further proof vide REPTICO S. A. GENEVA vs. AFRIBANK NIG PLC (2013) VOL. 225 (PT 1) [sic] 102 at 145, MOZIE vs. MBAMALU (2006) 12 SCM (PT I) 306 at 317, OLUBODE vs. OYESINA (1977) 5 SC [no page stated] and BALOGUN vs. LABIRAN (1988) 3 NWLR (PT 80) 66.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that cases are decided on the preponderance of evidence, based on the evidence that is heavier on the imaginary scale of justice; the weight of evidence being ascertained by the quality or probative value of the testimony.

The cases of OKOLIE vs. ONYEJULU (2001) FWLR (PT 41) 182 at 1847 [sic], OYEGOKE vs. IGUNA (2001) FWLR (PT 75) 4480 at 464 [sic] and ROCKONOH PROPERTY CO. LTD vs. NITEL PLC (2001) FWLR (PT 67) 885 at 913 were cited in support.

It was posited that the nature of the job given to the Respondent, as set out in the letter, Exhibit E4, was auditing job to reconcile the accounts given to the 1st Appellant by its bankers in order to show the fraud perpetrated by the banks and save the amount overcharged by the banks.

It was stated that the contract with the Appellants was not in writing but that the Respondent reproduced the understandings reached in Exhibit E4, which was approved by the Appellants’ Chairman. It was opined that the Appellants did not controvert Exhibit E4 until after the action had been filed in Court, when they led evidence to contradict Exhibit E4. It was asserted that oral or extrinsic evidence cannot vary or alter a written document vide UNION BANK vs. SAX (NIG) LTD (1994) 9 SCNJ 1.

It was maintained that the fact that the Appellants’ Chairman approved the terms set out in Exhibit E4, was an admission by the Appellants of the terms set out in

the said Exhibit E4. It was therefore posited that the lower Court was right to enter judgment for the Respondent based on credible evidence or inference from the facts and evidence before the Court. The cases of UTTEH vs. THE STATE (1992) 2 SCNJ 183 and OREPEKAN vs. AMADI (1993) 11 SCNJ 68 were called in aid.

The Respondent asserted that he had done all that was required of him and that he was entitled to his fees, having attended Court to defend his figures and the judgment on admission obtained by one of the banks was based on the reduced amount in the audited figures. It was opined that where words used in a correspondence are clear and unambiguous, extraneous words are not to be imported in interpreting the words. The case of UNION BANK vs. OZIGI (1994) 3 SCNJ 42 was referred to.

The Respondent submitted that a Counterclaim is an independent action which the Appellants had the burden to prove, but that the Appellants did not adduce evidence to prove their Counterclaim in order to dislodge the terms and nature of contract borne out by Exhibit E4, so as to entitle them to judgment on their Counterclaim. The cases of

NARINDEX TRUST LTD vs. NIGERIA INTER-CONTINENTAL MERCHANT BANK LTD (2001) FWLR (PT 49) 1546 at 1564, ORIANWO vs. OKENE (2002) FWLR (PT 114) 427 at 451 and OLAGUNJU vs. YAHAYA (2005) ALL FWLR (PT 247) 1466 at 1485 were relied upon.

It was posited that the Respondent adduced sufficient evidence which shifted the burden of proof to the Appellants, but that the Appellants were unable to discharge the burden of proof in order to establish their Counterclaim vide HIGHGRADE MARITIME SERVICES LTD vs. FIRST BANK (1991) 1 SCNJ 110. It was conclusively submitted that the decision of the lower Court is supported by the evidence on record and that since the decision is not perverse, an appellate Court will not interfere. The case of AGWUNEDU vs. ONWUMERE (1994) 1 SCNJ 106 was cited in support.

RESOLUTION
The facts of this matter are simple and straightforward. They are not convoluted. The 1st Appellant is a customer of Nigeria Universal Bank and Access Bank. The Appellants, contending that the statements of account of the indebtedness of the 1st Appellant to the said banks were not accurate, instructed the Respondent to audit the said accounts and reconcile the figures in order to arrive

at the accurate figure of what the 1st Appellant owed the said banks.
The Respondent accepted the instructions. The contract though oral, is not such as the law makes mandatory to be in writing; so it is enforceable by the Court vide OMEGA BANK NIG PLC vs. OBC LTD (2002) 16 NWLR (PT 794) 483 and TAURA vs. CHUKWU (2018) LPELR-45990 (CA). However, out of the abundance of caution, which as it has turned out was justified, the Respondent reduced the understandings of the agreed terms in a correspondence to the Appellants. The said correspondence which is dated 19th May 1998 was admitted in evidence as Exhibit E4. The Respondent, inter alia, stated as follows in the said Exhibit E4, which is reproduced at page 20 of the Records:
“We have to reconfirm the terms of our Professional Fees as agreed on yesterday, in Chairman’s (Alhaji A. Mohammed) office as follows:
10% of whatever amount we could save in favour of your Company out of the outstanding amount the bank is claiming as at the Terminal date, is our payable professional fees excluding our mobilization fees totalling N35,000.00 on the commencement of the assignment.

All the logistics that may be required/provided in the course of the reconciliation (if need be) are not related to our professional fees.”
Upon the receipt of the said Exhibit E4, the Appellants approved the agreement in a handwritten minute endorsed thereon as follows:
“att. M. Director
Approved as discussed.
Everything inclusive in the 10%
(Signed)
26/05/1998”

The Respondent did not contest the terms of the approval minuted by the Appellants on Exhibit E4, so it does appear that the parties were ad idem that the all-inclusive professional fees due to the Respondent would be 10% of whatever amount saved in favour of the 1st Appellant out of the outstanding amount that the banks were claiming as owed to them. This agreement as to fees payable to the Respondent is further confirmed in the Appellants’ letter to the Respondent dated 9th March 2005, tendered in evidence as Exhibit J.

The Respondent’s case is simply that in effecting his instructions, the reconciled accounts he produced recorded savings in the sum of N15.9 million on what was claimed by Nigeria Universal Bank for which he was entitled

to the sum of N1.59 million being 10% of the amount saved. With respect to Access Bank, the reconciled account saved N14.4 million for the 1st Appellant for which he was entitled to the sum of N1.44 million being 10% of the amount saved as his professional fees. The Appellants made payment in instalments to the Respondent and the Respondent claimed that there was a balance of N1.506 million due to him on his earned professional fees. The Appellants concede that the payments were made to the Respondent, but contending that the monies paid were not earned, they counterclaimed for the refund of the payments made to the Respondents totalling N1.530 million.

It is the case of the Appellants at the trial that the agreement with the Respondent was that the figures he prepared had to be accepted by the bank, or where the matter was litigated, the Court had to enter judgment based on his figures; in order for him to be entitled to fees. It is in evidence that Nigeria Universal Bank sued the 1st Appellant before the Failed Banks Tribunal, but the action was not followed through to the end as it was abandoned after the dissolution of the Failed Banks Tribunal. So

Nigeria Universal Bank did not recover any debts from the Appellants that was more than the figures prepared by the Respondent. It is further in evidence that Access Bank had, before the reconciled accounts prepared by the Respondent, sold a property used as security for the facility it granted to the 1st Appellant. After the said sale, Access Bank sued for the balance outstanding on the facility and based on the reconciled accounts prepared by the Respondent, Access Bank obtained part judgment on admission in the sum of N6million which the Respondent’s reconciled figures showed as outstanding as opposed to the N20.4million claimed by Access Bank. It is instructive that Access Bank having obtained part-judgment on admission for the said sum of N6million abandoned the rest of the action. So Access Bank did not obtain judgment for more than the figure in the reconciled accounts prepared by the Respondent.

It is on the basis of these disparate set of facts as articulated by the parties that the lower Court after evaluation of the evidence entered judgment for the Respondent and dismissed the Counterclaim of the Appellants.

Now, a trial Judge is a

peculiar adjudicator. Of all Judges the heaviest burden and responsibility of deciding a case rests with him. He normally hears a case by receiving evidence both oral and documentary from witnesses who appear before him in Court, are asked questions and cross examined. In the process, he engages himself to see, listen to and watch them testify. Not only that, his feelings and impressions are tested from time to time upon one issue or another when, apart from listening, he watches, he takes mental note of the performance of witnesses, their demeanour in the witness box, in particular how they react to questioning and the manner they give answers. Quite often, it is this that helps the trial Judge as to who and what to believe. The witnesses are telling him what he was not aware of before, the circumstances in which it happened and in respect of which both sides claim that their evidence represents the truth; and the trial Judge will have to take a decision. So if the trial Judge is up to the demands of his duty, he will continue to size up the witnesses in their oral testimonies. Is a particular witness lying or prevaricating or just slow in nature, or has he a

peculiar idiosyncrasy? That is for the trial Judge to determine. When there are relevant documents, they serve as the touchstone against which the oral testimony can be tested, and so much of the demeanour of a witness may not quite matter: see OLUJINLE vs ADEAGBO (1988) 2 NWLR (PT 75) 238 at 254.
The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. It is rudimentary law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the

trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48.

I have insightfully considered the judgment of the lower Court and there is no doubt whatsoever that the findings of facts made by the lower Court flow from the evidence on record and the findings are not perverse. Exhibits E4 and J depict the

consensus ad idem between the parties that the Respondent is to be paid 10% of the amount saved from his audit and reconciliation of the accounts as his professional fees. The amount saved from the reconciliation done by the Respondent has not been confuted. Indeed, the Appellants had already made part-payment of the agreed fees before they reneged on the contention that the professional fees was not earned. The understandings reached by the parties as reduced in writing in Exhibit E4 and approved by the 1st Appellant’s Chairman constitutes the agreement of the parties on the fees to be paid to the Respondent. The approval of the same by the Appellants coupled with the Appellants’ letter Exhibit J, restating the said terms of payment, is an admission against the interest of the Appellants and it is the best evidence in favour of the Respondent: ROCKSHELL INT’L LTD vs. B. Q. S LTD (2009) 12 NWLR (PT 1156) 640 at 649 and ONYENGE vs. EBERE (2004) 13 NWLR (PT 889) 39.

The settled legal position is that where the words of a contract or agreement are clear, the words should be given their plain, simple, literal and natural meaning. See

BERLIET NIG LTD vs. KACHALLA (1995) 12 SCNJ 147, OWENA BANK vs. NIGERIAN STOCK EXCHANGE (1997) 8 NWLR (PT 315) 15 and AMASIKE vs. THE REGISTRAR-GENERAL, CAC (2010) LPELR (456) 1 at 47 (SC). It is not the business of a Court to make a contract for the parties or to rewrite the contract which the parties had made: OYENUGA vs. PROVINCIAL COUNCIL, UNIVERSITY OF IFE (1965) NMLR 9. In the construction of documents, the words therein should first be given their simple and ordinary meaning. See UNION BANK vs. SAX NIG LTD (1994) LPELR (3390) 1 at 18-19 (SC). The lower Court correctly discharged its duty of giving Exhibits E4 and J their simple and ordinary meaning. In so doing it arrived at the correct decision that the parties were ad idem on the professional fees payable to the Respondent. I see no justifiable basis on which to interfere with the evaluation of the evidence and ascription of probative value thereto by the lower Court.

The matter does not end there. The Appellants contend that in order for the Respondent to be entitled to the fees, his reconciled figures would have been accepted by the banks or be successfully used in defence of an action by the

banks, none of which happened; consequent upon which they counterclaimed for refund of the part-payment already made to the Respondent. It is abecedarian law that a document tendered in Court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except in cases where fraud is pleaded. See Section 128 of the Evidence Act and the cases of A-G BENDEL STATE vs. UBA LTD (1986) LPELR (3163) 1 at 25, UNION BANK vs. SAX NIG LTD (supra) at 32, KOIKI vs. MAGNUSSON (1999) LPELR (1697) 1 at 42 and OGUNDEPO vs. OLUMESAN (2011) LPELR (1297) 1 at 15-16. The Appellants can therefore not be heard to introduce any extrinsic evidence to alter the terms of Exhibits E4 and J. Be that as it may, I have already demonstrated in the course of this judgment that even the Court cases instituted by the banks did not expose the Appellants to any liability over and above the figures in the audited and reconciled accounts prepared by the Respondent. The action by Nigeria Universal Bank was abandoned consequent upon the dissolution of the Failed Banks Tribunals; the action by Access Bank was not further pursued

by the bank after judgment was entered for it in the sum of N6million which the audited and reconciliation accounts stated was the outstanding amount due to it. So, even going by the extrinsic considerations introduced by the Appellants, the Respondent on the preponderance of evidence was still entitled to payment of the agreed professional fees.

It is hornbook law that for the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. In the words of Idigbe, JSC in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47:
“It is now settled that if there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial

unquestionably evaluates the evidence then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.”
At the risk of being prolix, I restate that an appellate Court will not substitute its own views with those of the trial Court, when as in the instant appeal, the trial Court has unquestionably evaluated the evidence and justifiably appraised the facts. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19-20. The evaluation of evidence and the findings made by the lower Court were definitely not perverse. Therefore, there is absolutely no basis on which an appellate Court can intervene. From all I have said thus far, the inevitable summation is that the Appellants have failed to displace the presumption that the conclusions of the lower Court on the facts are correct in order to upset the judgment on the facts: EHOLOR vs. OSAYANDE (supra) at 43 and ONI vs. JOHNSON (supra) at 11-13.

The antithesis and corollary of the Respondent’s success for the payment of the balance of the agreed professional fees is that the

Appellants’ Counterclaim which is for refund of the part-payment already made to the Respondent must perforce fail. The decision of the lower Court entering judgment for the Respondent and dismissing the Appellants’ Counterclaim is therefore the correct decision. The epitome of the foregoing is that the sole dilatable issue for determination distilled by the Court is answered in the affirmative and resolved against the Appellants. On the preponderance of evidence and balance of probability, the lower Court was right to have entered judgment for the Respondent and to have dismissed the Appellants’ Counterclaim. The appeal being devoid of merit fails and it is accordingly dismissed. The judgment of the lower Court delivered on 26th March 2015 is hereby affirmed. There shall be N200, 000.00 costs in favour of the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read the draft of the lead judgment just delivered by my learned

brother, UGOCHUKWU ANTHONY OGAKWU JCA, in which the appeal was adjudged to be devoid of merit and was dismissed.

I agree with the analysis of issues in the appeal and resolution reached therein. I adopt same as mine, and I equally hold that the appeal lacks merit and deserved to be dismissed. I hereby dismiss the appeal for it lacks merit.

I abide with consequential orders made as to costs.
The appeal is dismissed.

Appearances:

Friday Oriuwa, Esq. For Appellant(s)

Pius Ore-Ayodele, Esq. For Respondent(s)