EDWARD ESSIEN v. COLLEGE OF EDUCATION, ORO (2014)

EDWARD ESSIEN v. COLLEGE OF EDUCATION, ORO

(2014)LCN/7738(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of July, 2014

CA/IL/9/2014

RATIO

EVIDENCE: UNCHALLENGED EVIDENCE; WHETHER FACTS NOT CHALLENGED OR CONTROVERTED BY THE PARTY AGAINST WHOM THEY ARE AVERRED ARE DEEMED ADMITTED

It is an elementary principle of the law that facts not challenged or controverted by the party against whom they are averred are deemed admitted. See the cases of Elder Godfrey Chinwo & Ors Vs Isaac Chinwo (2012) ALL FWLR pt 656 at 598 particularly at page 606; Total Nig Plc Vs Morkah (2003) FWLR pt 148 of 1343; Mrs Esther Ighreriniovo Vs S.C.C Nig Ltd and 2 Ors (2013) All FWLR (Pt 700) 1240 at page 1250.
Where the court held as follows:-
Unchallenged evidence which is credible stands and should be accepted and acted upon by the court in the instant case where the respondents failed to adduced any evidence in support of their defence, the trial court was right by relying on the unchallenged evidence of the appellant to grant reliefs claimed. per. HUSSEIN MUKHTAR, J.C.A.

Before Their Lordships

HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAMJustice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALIJustice of The Court of Appeal of Nigeria

Between

EDWARD ESSIENAppellant(s)

AND

COLLEGE OF EDUCATION, ORORespondent(s)

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot from the judgment of the High Court of Kwara State in suit No KWS/85/2011 delivered by Hon. Justice M. A. Folayan on 24th October, 2013 in the suit filed by the appellant as claimant against the respondent as defendant seeking for the following reliefs:
1. A declaration that the claimant is entitled to be paid by the Defendant 70% of the money paid by the students for the 2009/2010 academic session from the sale of scratch cards procured by the claimant and payment for the I.C.T fees as agreed in the Deed of Agreement dated 13th November, 2008.
ii. A Declaration that the claimant is entitled to be paid by the Defendant a total sum of N59,216,500.00 (Fifty Nine Million, Two Hundred and Sixteen Thousand, Five Hundred Naira) only being the 70% of the sum of N84,595,000.00 (Eighty Four Million, Five Hundred and Ninety Five Thousand Naira) only paid by the students for the 2009/2010 academic session from the sale of scratch cards procured by the claimant and the ICT fees paid by the students to the Defendant
iii. A Declaration that the claimant is entitled to remove and pack the following equipments installed by the claimant in the ICT Centre after the Defendant has terminated the contract. The Equipments are:-
a. Internet Infrastructure (C Band) with Bandwidth cost (IMB dedicated).
b. 130 HP Desktops with 17″ TFT Monitors.
c. 2 Nos. of HP ML350 servers.
d. 243/7 Wireless Routers (Maximum radius of 4 km) and radio.
e. 100 KVA Soundproof Generator.
f. 150 System furniture.
g. 42 U Rack with switches KVM switch.
h. HP (2) Printers.
l. HP (2) Scanners.
J. Industrial 10 KVA Stabilizer.
vi. The sum of N59,216,500 only being the 70% accruable to the claimant from the sale of scratch cards procured by the claimant and ICT fees paid by 9,825 students to the defendant for the 2009/2010 academic session which sum the defendant has not paid to the claimant till date.
v. An order of perpetual injunction restraining the defendant from operating/using the aforesaid equipment listed in paragraph 63(iv).
vi. An order directing the defendant to release forthwith the above listed equipments installed by the claimant of the ICT Centre of the defendant.
vii. 10% interest on the sum of N59, 216,500.00 from the date of judgment, until the sum is finally liquidated.

The facts that led hostilities between the appellant and the respondent were triggered when the former was engaged by the latter to provide ICT Services at the respondent’s ICT Centre of its premises in Oro under a special contract. The appellant trading under the name and style of Core Business Technologies signed a contract with the respondent institution dated 13th November 2008 for the provision of portal solution and I.C.T. facilities to the respondent institution with the capacity of handling between the range of 6,000 to 8,000 students at a total cost of N60,000,000.00.

In accordance with the terms of the said contract the appellant was to build, occupy the said I.C.T. center for five years before transferring same to the respondent. Similarly the appellant was to design and produce scratch cards at his own cost to be purchased by students of the respondent’s institution for registration at the rate of N5,000. 00 each and also for the students to pay I.C.T. fees of another N5, 000.00 each embedded in the payment of their school fees at the time of registration. It was agreed that 70% of the total sum realized from the sale of the scratch cards and the I.C.T. fees was to be paid into the appellant’s account with Zenith Bank, Union Bank, Skye Bank, Iludun Oro Community Bank and Ijomu Oro Community Bank being banks designated as points of sale of the scratch cards.

Barely a year into the commencement of the said contract, a third party interest was discovered leading to epileptic services which almost precipitated students’ unrest in the respondent’s institution. The respondent had to resort to self help by bringing in another software technologist to prevent the breakdown of law and order in its institution occasioned by poor I.C.T. services rendered by the appellant and his cohort.
Dissatisfied with this ugly development, the respondent wrote a letter of protest and later terminated the contract with effect from the 30th day of April 2010.

Upon the termination of the appellant’s contract by the respondent in April 2010, some processes of intervention and mediation occurred which led to the withdrawal of the said letter of termination of contract by the respondent. No sooner the letter was withdrawn than it became apparent that the crisis in the appellant’s circle would not abate and allow for any meaningful provision of I.C.T facilities to the respondent. The respondent therefore gave a three (3) months notice to the appellant and terminated the contract with effect from the 31st day of December 2010.

Upon being served with the statement of claim, the respondent filed its statement of defence and counter claim to the appellant’s action.
In the course of the proceeding before the trial Court, the appellant testified by himself called no other witness and tendered Exhibits 1 – 13. The respondent called 4 witnesses and tendered Exhibits 01 – 015.

The appellant did not, however, contest any of the letter of termination of his contract by the respondent. His claim was for money allegedly collected by the respondent from April to December 2010 from the sale of the scratch cards and the use of the facilities provided by the appellant in the respondent’s institution.
The appellant also sought the order of the trial court to evacuate all his equipments and facilities in the respondent’s institution.

The respondent on the other hand contended that the appellant was not entitled to any sum of all having collected money due to him as of the registration time in October 2009 and having failed to provide any meaningful services thereafter.
Similarly the respondent counter claimed for the return of equipments not yet installed or taken away by the appellant as contained in the contract between the parties.

At the close of the counsel address and in a reserved judgment delivered on the 24th October, 2013, the trial court dismissed the appellant’s claim for the 70% profit from the sales of scratch cards and I.C.T fees while granting every other relief(s) sought for by the appellant. (See pages 440-463 of the record of appeal).

Being grumpy with that part of the judgment of the trial Court dismissing his claim for the sum of N59,216,500.00 and upon a notice of appeal dated 6th January 2014, the appellant appealed to this court on three (3) grounds of appeal thus:
GROUND 1
The learned trial court erred in law and misdirected itself when it held that the Claimant is not entitled to 70% of the profit realized from ICT centre between April to December, 2010 having found and held that:
“The evidence of the claimant on the provision of scratch cards for the same period has not been successfully discredited or challenged by the defendant. Infact no evidence is offered in respect of this by the defendant. With the evidence before me, I can say and I so hold that the claimant has established his claims for the scratch card only for the period of April-December, 2010 as claimed by him. ”

GROUND 2
The learned trial judge erred in law when he held that the evidence of the Claimant on his claim for N59,216,500:00 is so vague and unreliable.

GROUND 3
The learned trial judge erred in law when he held that the court is not told how the claimant arrived at the figure of N84,595,000:00 which he said is the final amount of profit realized by the defendant between April to December, 2010.

From the foregoing three grounds of appeal, the following three issues were raised by the appellant for determination:
(a) Whether from the finding of the lower court that the Appellant has established his claim for the scratch cards for the period of April to December, 2010, the lower Court was right to have denied the entitlement of the Appellant for 70% of the profit realized from the sale of the scratch cards. (Ground 1).
(b) Whether the lower Court was right when it failed to consider, appraise, refer to and evaluate all the evidence and Exhibits tendered in the case before arriving at its decision that the claim of N59, 216,500.00 is vague and that the court was not told how the Appellant arrived at the figure of N84,595,000.00 as the profit realized by the Respondent between April to December 2010. (Grounds 1 & 2).
(c) Whether from the totality of the evidence adduced before the lower court, the lower court was right to have refused the claim of the 70% profit to the Appellant. (Grounds 1, 2 & 3).

Although the appellant raised three issues from an equal number of grounds, issues 2 and 3 were raised from grounds incorporating those from which issues 1 and 2 had been raised thereby resulting in proliferation of the issues. A party is allowed to raise one issue from one or more grounds of appeal but raising more than one issue from the same ground of appeal offends the rule of brief writing. The appellate courts have always condemned proliferation of issues raised from same ground. In other words while an issue can be tied to more than one ground of appeal, more than one issue cannot be tied to a single ground of appeal. The principle governing the formulation of issues for determination is very clear to the effect that a number of grounds of appeal could, where appropriate, be condensed into a single cognizable issue. The reverse is of course very undesirable, that is to say the formulation of two or more issues from one ground of appeal.

The following two issues raised by the respondent, which are more elegant and subsuming all the issues raised by the appellant are therefore adopted for the determination of this appeal:
1. Whether the trial judge was right when he held that the evidence of the appellant for the sum of N59,216,500.00 was vague and unreliable, and therefore not proved.
2. Whether the trial judge was right when he held that a better way of showing the authentic figure would have been for the appellant to obtain bank statement of account the various banks designated for the sale of scratch cards.

Issue One
The learned counsel for the appellant contended that the court below fell into an error when it refused to grant the respondent’s claim of 70% of the sum generated from the sales of scratch cards and ICT services after finding that same had been established by evidence. See the case of Mohammed Bala Kalgo & Anor Vs Hon. Engr. Abdullahi Umar Faruk & 3 Ors (2009) ALL FWLR (Pt. 475) 1752 at 1770.

The learned counsel for the appellant submitted that where the conclusion arrived at by the trial court is at variance with or not drawn from correct findings, such conclusion or judgment of the court is said to be perverse and must be upturned by the appellate court. See the case of Dr. Moses Obajimi vs Mr. P.T. Adedeji (2007) ALL FWLR (Pt. 394) 335 at 351.
The learned counsel for the appellant argued that the learned trial judge failed to make the correct finding from the evidence before him by which the appellant would have been entitled to 70% of the total revenue generated by the respondent from April to December 2010. (See pages 455 and 456 of the record of appeal).

It was argued that the evidence adduced by the appellant on the provision of the scratch cards for the same period was not discredited or even challenged by the respondent. The learned trial judge, at page 457 of the record of appeal, thus:
“With the evidence before me, I can say and I so hold that, the claimant has established his claims for the scratch cards only for the period of April – December, 2010 as claimed by him”

It was submitted for the appellant that it was indeed wrong for the learned trial judge, having held or found from credible evidence before him that the appellant has established his claims for the scratch cards for the period of April to December 2010, to subsequently conclude that the appellant is not entitled to 70% of the profit realized from the said sale. See Mohammed Buhari & Anor V. Chief Olusegun Obasanjo & 264 Ors (2005) All FWLR (Pt. 273) at 158 and Chief S.L. Durosaro V. T.A.A. Ayorinde (2005) All FWLR (Pt. 260) 167 at 177 which were rightly applied and followed by this court in the case of Dr. Moses Obajimi Vs. Mr. P. T. Adediji (2007) All FWLR (pt. 394) 335 at 351 where this court held as follows:
“Nothing can be more perverse than a conclusion by a trial court that does not draw from its correct and subsisting findings arrived at from the pleadings of and evidence led by the parties. In the instant case, where the trial court found that the defendant was in breach of the contract between the parties and still ordered a refund of the purchase money to the defendant. The decision was not based on its findings and was rightly interfered with on appeal.”
The court was asked to resolve this issue against the respondent by holding that the lower Court was wrong to have denied the entitlement of the 70% of the profit realized from the sale of the scratch cards, having found that the appellant has established his claims for the scratch cards for the period of April to December 2010.

The learned counsel for the respondent argued that the vagueness and/or unreliability of the appellant’s claim vis a vis the evidence adduced is a finding based on evaluation of evidence before the trial Court. It entails the assessment of evidence by the trial court and probative value given to it. See the case of Nwano Vs Obaze (2012) All FWLR Pt. 605 at 231. The evidence adduced by the Appellant before the trial court was thus:
i. That the appellant produced and deposited scratch cards in designated banks for students of the respondent institution to buy and register for the 2009/2010 academic session.
ii. That student of the respondent’s institution registered with the said scratch card of the I.C.T. center provided by the appellant.

It was argued that the foundation upon which these evidence of the appellant was built were exhibits 9, 10, 11, 12, and 13 which according to the appellant were the lists of registered students which were printed out from the appellant’s system. (see page 417 of the record of appeal) The trial judge in his well considered judgment held that the two sets of documents tendered by both parties are unreliable. The Exhibits, especially exhibits 9, 10, 11, 12 and 13 are undated and did not reflect the year or session to which the said Exhibits applied.
Moreover 2009 /2010 session which the exhibits purportedly covered ended in September 2010, there was nothing before the trial Court for the period of October 2010 to December 2010, when another new session commenced and a period which formed part of the claim by the appellant (see page 458 of the record of appeal).

It is important to note that the appellant himself under cross examination during trial before the trial Court did not deny the fact that exhibits 9, 10, 11, 12 and 13 were undated. It was submitted for the respondent that since the power to evaluate and make findings on evidence is the primary duty of the trial court, the trial judge has carefully and meticulously evaluated the evidence of parties before it and the appellate court should not disturb the said finding. See the case of Purification Technique Nig. Ltd and Ors Vs Rufai Jubril & Ors (2012) ALL FWLR (pt. 642) 1658; Nwano Vs Obaze (Supra) where this court held as follows: –
Findings on primary facts are matters within the province of the court of trial and there is a rebuttable presumption that the trial court’s findings and conclusion on the facts are correct. The duty of the appellate court to interfere with improper findings or correct any erroneous conclusion would only come into play where a trial court fails to properly examine and evaluate the evidence before the court.
It was submitted for the respondent that there was no improper evaluation of evidence by the trial court to warrant interference with those findings.

Furthermore, the evidence on the record of the trial court concerning the provision of the I.C.T services to the students of the respondent’s institution shows that the appellant did not provide the said services from 1st April to 31st December 2010, the period during which the appellant is claiming. (See the evidence of the appellant and the DW4 respondent’s Registrar of pages 26,269 and 270 of the record of appeal). Moreover, the respondent’s evidence (DW4) that prior to the 1st April 2010, the I.C.T services had become epileptic was neither challenged nor controverted. Also the evidence that the respondent sought the help of another computer expert to save the situation was not challenged. The appellant himself admitted (see page 26 of the record of appeal) that he wanted to resume work at the respondent’s institution on 30th September 2010 when he was served with a letter of termination of contract by the respondent.

It was further argued for the respondent that the court below was right to have refused the appellant’s claim for the money paid in respect of I.C.T registration in view of its finding on the uncontroverted evidence adduced that the I.C.T center was not functioning between April and December 2010. The learned trial judge held (at page 457 of the record) as follows: –
With the evidence before me, I can say and I so hold that the claimant has established his claims for the scratch cards only for the period of April to December 2010.

From the uncontroverted evidence adduced by the appellant the following scenario was quite glaring:
(a) That a total sum of Eighty Four Million, Five Hundred and Ninety Five Thousand Naira (N84,595,000. 00) collected by the respondent from April to December 2010 was realized as revenue by the respondent from sale of scratch cards and I.C.T services
(b) That 70% agreed under the contract to be paid to the appellant amounted to the sum of Fifty Nine Million, Two Hundred and Sixteen Thousand, Five Hundred Naira (N59,216,500. 00). (Exhs. 9 – 13).
(c) That the sums of N5,000. 00 each were charged per student for the scratch card and I.C.T services.
(d) That the appellant produced only scratch cards but failed to provide I.C.T services for the period from April to December 2010.

From the foregoing the lower court would have calculated the appellant’s entitlement of 70% of the total collection divide by 2 in order to pay him 70% of the money realized from sale of the scratch cards in the stead of the 70% of the total collection.
Without much ado the simple arithmetic is 59,216,500. 00 /2 which is equal to Twenty Nine Million Six Hundred and Eight Thousand Two Hundred and Fifty Naira (29,608,250.00). This is what the lower court failed to do. Same is hereby granted to the appellant as money due to him. This resolves issue one partly in favour of the appellant. It still scores a partial success for this appeal and renders ground 2 merely academic and needless to be delved in to.

The appeal succeeds in part and is allowed on the appellant’s entitlement of 70% of 50% of the revenue realized from April to December 2010 that is Twenty Nine Million Six Hundred and Eight Thousand Two Hundred and Fifty Naira (29,608,250.00). The part of the judgment of the lower court in suit No KWS/85/2011 delivered by Hon. Justice M. A. Folayan on 24th October, 2013 regarding refusal to order for the payment of the scratch cards provided by the appellant to the respondent institution from April to December 2010 is hereby set aside. In the stead thereof, the sum aforesaid being 70% of the revenue realized for sale of the scratch cards produced by the appellant under the agreement between the parties shall be paid to the appellant forthwith.
The appellant is entitled to cost of N50,000.00 hereby awarded against the respondent.

UCHECHUKWU ONYEMENAM, J.C.A.: I was granted the opportunity to read in advance the judgment delivered by my learned brother, DR. HUSSEIN MUKHTAR, JCA. I agree with his conclusion for allowing the appeal. I accordingly allow the appeal which succeeds in part.
I abide by the order as to cost.

MUSA HASSAN ALKALI, J.C.A.: I had the opportunity of reading the well presented, lead judgment of my learned brother, Hussein Mukhtar JCA.

I am in total agreement with the conclusion that the sum aforesaid being 70% of the revenue realised for sale of the scratch card produced by the appellant under agreement between the parties shall be paid to the appellant forthwith.

The appellant is entitled to cost of N50,000.00 hereby awarded against the respondent.

Appearances

B. R. Gold with K. L. Zakariya, F. F. Salman and Mrs. I. S. DurosinlohunFor Appellant

AND

O. D. Kuranga with Prince Kayode AbioyeFor Respondent