GEO MEMORIAL MEDICAL CENTRE & ANOR V. NATIONAL DIRECTORATE OF EMPLOYMENT (2013)

GEO MEMORIAL MEDICAL CENTRE & ANOR V. NATIONAL DIRECTORATE OF EMPLOYMENT

(2013)LCN/6288(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2013

CA/L/902/2010

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

1. GEO MEMORIAL MEDICAL CENTRE
2. DR. ADA IWUOHA Appellant(s)

AND

NATIONAL DIRECTORATE OF EMPLOYMENT Respondent(s)

RATIO

THE MEANING AND NATURE OF A WAIVER

On the meaning and nature of Waiver, the Supreme Court in N.B.C.I. v Integrated Gas (Nig) Ltd. (2005) 4 NWLR Pt 916 617 at 642-643 paras E-B held that:
“If one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him to do so.” PER IYIZOBA, J.C.A.

WHETHER OR NOT THE ASCRIPTION OF PROBATIVE VALUE TO THE EVIDENCE OF WITNESSES IS THE BUSINESS OF THE TRIAL COURT

The law is that the ascription of probative value to the evidence of witnesses is the business of the trial court which saw and heard the witnesses. An appellate court would therefore not ordinarily interfere with findings of a trial court except where wrongly applied to the circumstances of the case or where the conclusion reached was wrong or perverse; Musa v State (2009) 15 NWLR Pt 1165, 467 at 497 paras F-H. See Nneji v Chukwu (1996) 10 NWLR Pt 478 265 at 278 paras C-D; Ogbechie v Onochie (1988) 1 NWLR Pt 70 370 at 390 paras G-H. PER IYIZOBA, J.C.A.

WHETHER OR NOT A COURT HAS A DUTY TO CONSIDER EVERY ISSUE BEFORE IT

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Nyako J of the Federal High Court delivered on the 3rd day of December, 2009 in Suit No FHC/ABJ/CS/622/2003.
The Appellants as Plaintiffs sued the Respondent and the Federal Ministry of Labour and Productivity as Defendants. By their final Amended Statement of Claim dated 15th November, 2005 the Appellants claimed the following 6 reliefs against the Respondents:- 1.
“A Declaration that by virtue of the renewal of consultancy services agreement letter dated 6th June, 1999 reference No Aa/Z/6011a/55 between the Plaintiffs and Defendants, the plaintiffs remain the medical consultant to the 1st Defendant under the benefits thereon.
2. A Declaration that the purported award of the same consultancy service contract to another organization while the service agreement is still existing and binding in so far as it seeks or purports to abridge the right of the Plaintiffs under the agreement is irregular, illegal, wrongful, unconstitutional, null and void and of no effect.
3. A Declaration that there is no infraction of provisions of Section 36 (1) and 42 (i) of the Constitution of the Federal Republic of Nigeria 1999 by the Defendants against the plaintiffs and violative of its inalienable Constitutional rights.
4. AN Order for the payment by Defendant of the sum of N16, 940, 000 (Sixteen Million Nine, Hundred and Forty Thousand Naira only), being outstanding arrears of fees on the consultancy services agreement with Defendants.
5. Interest therein at the rate of 10% per annum from April, 1998 until the said debt is liquidated.
6. Cost of this action.”

The Appellants’ case is that, they having been duly appointed by the Respondent as its sole accredited Medical Consultant, the Respondent wrongly terminated the said appointment without due recourse to the Consultancy Services Agreement between the Appellants and the Respondent. The Appellants further claim that by the Consultancy Services Agreement between the parties, they were entitled to the sum of N16, 940,000 from the Respondent being arrears of fees for services rendered.

By their amended statement of defence filed on 20/7/09 the Respondent’s defence to the claim was that the Consultancy Services Agreement between the parties had been terminated and that the arrears of the Consultancy Fees in the sum of N5, 985, 000, which had been verified by the National Economic Intelligence Commission (NEIC) and published in the THIS DAY Newspaper to the knowledge of the Appellants had been paid to the Appellants. The Appellant had in writing and during the pendency of the suit in accepting the payment also accepted the condition that payment is in full and final settlement of all claims arising from or otherwise related to the consultancy agreement.

On 11th April, 2006 the Federal Ministry of Labour and Productivity was struck out as the 2nd Defendant by the Trial Judge in response to a Preliminary Objection that the Ministry is not a juristic person that can sue and be sued.
On 3/12/09, the Trial Court delivered judgment dismissing the case on the ground that the Appellants’ claim had been extinguished by the acceptance of the amount paid to them as full and final settlement of the debt relating to the contract of medical consultancy between the parties.
The Appellants being dissatisfied with the Judgment filed a Notice of Appeal with 7 grounds of appeal out of which learned counsel for the appellant distilled 2 issues for determination as follows:-
1. Whether the Court below was right in holding, relying on Exhibit B1 alone, that the payment of the sum of N5, 985, 000.00 to the Appellants by the Budget office of the Federation had extinguished their claims, thereby waiving their further rights with regard to the Contract of Medical Consultancy between them and the Respondents and thereby came to a correct decision in the matter.
2. Whether the incorrect findings of facts as relates to when the suit was filed and the number of cassettes tendered as Exhibits and other cogent pieces of evidence led by the Appellants had not adversely affected the evaluation of evidence and findings of facts as well as the quality of the judgment in general and thereby occasioned the Appellants a miscarriage of justice.

The Respondent on the other hand identified the following two issues for determination:
1. Whether the Court below was right in holding, relying on all the credible evidence admitted that the payment of the sum of N5, 985, 000.00 to the Appellants by the Budget Office of the Federation had extinguished their claims with regard to the contract of Medical Consultancy Agreement between them and the Respondent and thereby came to a correct decision in the matter.
2. Whether the incorrect reference as to when the Suit was filed and the number of cassettes tendered in evidence as Exhibits but not played back to anybody during the course of trial affected the evaluation of evidence and findings of fact which thereby occasioned the Appellants a miscarriage of Justice.

In his Reply Brief, Appellants’ counsel argued that the two issues formulated by the Respondents did not arise from the grounds of appeal and are therefore incompetent. The Respondent’s issues in my view arise from the Grounds of Appeal and are basically the same as the two issues formulated by the Appellants except that the Respondent in formulating the issues introduced some fine distinctions which ought to be dealt with in counsel’s submissions. Since the appeal is that of the Appellant, I will adopt the appellants’ issues in the determination of the appeal notwithstanding its prolixity.

ISSUE ONE
Whether the Court below was right in holding, relying on Exhibit B1 alone, that the payment of the sum of N5, 985, 000.00 to the Appellants by the Budget Office of the Federation had extinguished their claims, thereby waiving their further rights with regard to the Contract of Medical Consultancy between them and the Respondents and thereby came to a correct decision in the matter.

APPELLANTS’ ARGUMENTS:
The Appellants’ Counsel submitted that by arriving at the conclusion that the Appellants had extinguished their claims by accepting the sum of N5,985, 000.00 from the Budget Office of the Federation thereby waiving their further rights with regard to the Contract of Medical Consultancy the Trial Judge had shown a grave misconception of the entire case by restricting the case of the Appellants to that of mere monetary indebtedness without more, thereby departing from the pleadings and evidence led by the Appellants. Counsel argued vigorously that contrary to the Respondent’s claims that no services were rendered after the Month of March 1998, that there was evidence that the appellants rendered services to the Respondents up till February 2000 when the Respondent purportedly gave the contract to someone else. Further that the Appellants in fact continued to consult for the Respondents up till end of March 2001. Counsel further contended that the contract was in fact yet to be terminated. He argued that when the Court below held that “the contract appears not to have been renewed based on the contents of Exhibit P dated 16/11/00”, the Court was speculating without making a finding of fact and that the court ought to have found that there was no lawful termination of the Appellants contract of Consultancy as a result of which the Appellants were entitled to have the contract running until same was terminated by due process. He submitted that the Trial Judge failed to make a finding as to whether their contract with the Respondents was determined according to law. He contended that the Court below could have ensured that the balance of the total monetary claim of N16, 940,000 less N5, 985, 000.00 be paid to the Appellants as compensation for losing out on the job innocently in spite of Exhibit B1.

Learned counsel further argued that reliefs 2, 4 and 5 of the Appellants’ Amended Statement of Claim are in the nature of claims for specific performance and that the law is that the provision of liquidated damage is no bar to the remedy of specific performance. Counsel referred to Archibong & Anor v Duke (1923) 4 NIR 92 @ 92-93. He also argued that the reasonable construction to be placed on Exhibit B1, relating same to Exhibits AN, AO and AO1 is that there was no unequivocal acceptance of the conditions stipulated in Exhibit AO and AO1 before the Appellants were paid the sum of N5, 985, 000.00.

It is the submission of Counsel that the Trial Judge dismissed the suit without consideration of the 6 reliefs which were mutually exclusive.

RESPONDENT’S ARGUMENTS
Learned Counsel to the Respondent on this issue submitted that the Appellants misconceived the reasons why the Lower Court dismissed its claims by contending that the Lower Court relied exclusively on Exhibit B1 without more when other documents were admitted in evidence coupled with the admission of PW1 (the 2nd Plaintiff) in her evidence. Contrary to the contention of the Appellants, Counsel submitted that the court made a finding that the Consultancy Agreement between the parties had come to an end by the end of March 2001 and that this fact was admitted by PW 1 in her testimony at page 318 of the Record. Further that the Appellant’s claims were for arrears of fees for medical consultancy and that the said claims stood at N7, 980.000.00 as at March 2001. Counsel further submitted that having accepted the sum of N5, 980,000.00 in full and final settlement of all claims arising from or related to its agreement with the Respondent, the Appellants are estopped from denying the contents or legal effect of Exhibits AN, AM, AO, AO1 and B1 freely made after reaping the pecuniary benefits from the same. Counsel referred the court to the case of Alhaji Olalekun v Wema Bank Plc (2006) 13 NWLR Pt 998 @ 625 where the Supreme Court, defining Estoppel held as follows:
“Estoppel is an admission or something which the law treats as equivalent to an admission of an extremely high and conclusive nature that the party whom it affects is not permitted to aver against it or offer evidence to controvert it”.

Counsel further posited that a complaint by a person of full age, capacity and understanding and not an illiterate that at the time he signed a document he did not know its contents will not avail him a plea of non est factum to avoid the validity of such a document. In support of his submission, Counsel referred this court to the cases of Okoya v Santilli (1994) 4 SCNJ Pt II P. 333 at 353; Awoshe v Sotunbo (1992) 6 SCNJ Pt II P. 182 at 195.

RESOLUTION OF ISSUE ONE:
Exhibit AO, (Publication of This Day Friday 19th January, 2007) the opening page of the publication by the Budget Office of the Federal Ministry of Finance required amongst other things for all concerned contractors to forward a written statement duly signed by their authorized representative accepting to receive payment in the amount specified against their names, in full and final settlement of all claims arising from the underlying contracts. In compliance with Exhibit AO and Exhibit AO1(2nd page of This Day publication) the Appellants had earlier written a letter to the National Economic Intelligence Commission (NEIC) authorizing the latter to deduct 25% Government Commission from the amount due to them. The Appellants later wrote Exhibit B1 accepting the sum of N5, 980, 000 in full and final settlement of all claims arising from the Consultancy Agreement.
Exhibit B1 reads thus:
“GEO MEMORIAL MEDICAL CENTRE/FAMILY PLANNING”
Lagos                                        Abuja
2 Adetayo Shode Street                Plot CM 92
Aguda, Surulere                          R.W. Site
Lagos                       By Day BY DAY Bus Stop
Tel: 01 – 830018+                    Kubwa,
Abuja

REF: NO. D/GEO/INDE/MF/1/007 23rd January, 2007

The Director, Expenditure
Room 306,
Budget Office of the Federation
Federal Ministry of Finance,
Abuja

Dear Sir,

RE: PUBLIC NOTICE ON PAYMENT OF LOCAL CONTRACTORS, REFERENCE NO. 146 GEO MEMORIAL MEDICAL CENTRE

Above subject matter refers please.

Further to your publication in the Thisday Newspaper of Friday, 19th January, 2007 we hereby write to accept the payment of N5, 985,000.00 (Five Million, Nine Hundred and Eighty-Five Thousand Naira) only, being specified against our name as “full and final settlement” over the debt being owed to us by the National Directorate of Employment for Medical Consultancy Services fully and duly rendered.
Our Banker is Skye Bank Nigeria, Plc, located at Gimbiya Street, Garki Branch, Abuja, FCT. The Account Name is GEO MEMORIAL MEDICAL CENTRE. The Account Number is 1041770006174.
Enclosed herewith are photocopies of the following documents
i. Certificate of Registration of Business Name
ii. The Contract Documents.
iii. Letter of Reminder to the National Directorate of Employment.
iv. Letter of Authority to National Economic Intelligence Commission dated 23rd May, 2002
v. Affidavit to NEC dated 29th April, 2002 sworne before the Commissioner for Oaths at the High Court of Justice of the Federal Capital Territory, Abuja.
vi. Two (2) passport photographs of our Representative by name Dr (Mrs.) Ada IWUOHA-IBEZIM.
Please note that the originals of documents (i) – (ii) are in the custody of the Federal High Court Abuja (Coram, Nyako J.) as exhibits in suit No. FHC/CS/622/03: GEO MEMORIAL MEDICAL CENTRE & OR V NATIONAL DIRECTORATE OF EMPLOYMENT.

Thank you.

Yours faithfully,
For: GEO MEMORIAL MEDICAL CENTRE

SGD

DR. (MRS.) ADA IWUOHA-IBEZIM
MEDICAL DIRECTOR.

The above letter speaks for itself. As Respondent’s Counsel submitted, a complaint by a person of full age, capacity and understanding and not an illiterate that at the time he signed a document he did not know its contents will not avail him a plea of non est factum to avoid the validity of such a document. See Okoya v Santilli (1994) 4 SCNJ Pt II P.333 at 353; Awoshe v Sotunbo (1992) 6 SCNJ Pt II P.182 at 195.
I therefore agree with Counsel to the Respondent that the Appellants are estopped from denying the contents of the said letter. The assertion of PW1 during re-examination that she did not know that if she accepted the amount, it would be in full and final payment is of no moment. The learned Trial Judge was right that PW1, an educated Medical Doctor who could not have acted without the knowledge of her Counsel in a matter pending in court clearly understood the import of her action when she wrote and signed Exhibit B1. The fact that the 2nd Appellant complied with all the directives published in Exhibit AO including sending her passport photograph and the Bank Account Number of the 1st Appellant is a pointer to the fact and leaves me with no doubt that she studied and understood Exhibit AO well before writing and signing Exhibit B1.

Contrary to the contention of learned Counsel to the Appellants, the decision of the Trial Judge was not made in reliance on Exhibit B1 alone. For instance, it was from his evaluation of Exhibit P and the letter dated 4/12/00 that the Trial Judge concluded that the Contract was not further renewed after the first renewal. It was also from an appraisal of Exhibit Y that the Trial Judge found that the claim of the Appellants as at March 2001 when the Agreement expired was N7, 980, 000.00. It was further from considering the Consultancy Agreement between the parties that the Trial Judge found that the parties’ agreement was that payment would only be for work done. It is apparent that in making his conclusions, the Trial Judge considered the contents of various documents before the court including Exhibits AO, AO1 and B1. I concur with Respondent’s Counsel that having accepted the sum of N5, 980,000.00 in full and final settlement of all claims arising from or related to its agreement with the Respondent, the Appellants are estopped from denying the contents or legal effects of Exhibits AN, AM, AO, AO1 and B1 freely made after reaping the pecuniary benefits from the same. The learned Trial Judge from the records did not rely exclusively on Exhibit B1, his Lordship also relied on these other documents which were admitted in evidence as well as the admission of the PW1 (the 2nd Plaintiff) in her evidence.

The learned Trial Judge was in my view correct in his finding that the payment of the sum of N5, 985, 000.00 to the Appellants by the Budget office of the Federation extinguished their claims, the appellants having accepted the conditions for payment and thereby waiving their further rights with regard to the Contract of Medical Consultancy between them and the Respondents.

The appellant by accepting the payment and signing the conditions stipulated by the Respondent by their conduct led the Respondent to believe that they will no longer insist on their previous claim, the Appellants surely cannot turn round now to insist on their previous claim, assuming they were even entitled to same. The offer of the sum of N5, 985,000.00 was made to the Appellants during the pendency of this suit. They were under no obligation to accept the offer. They could have ignored the offer and continued with their case, thereby preserving the res. By accepting the conditions, as rightly observed by the learned trial Judge, the Appellants destroyed the res of their suit.

The Trial Judge in his judgment observed that he found it hard to believe that PW1, the 2nd Appellant did not understand the contents of Exhibit AO.
The law is that the ascription of probative value to the evidence of witnesses is the business of the trial court which saw and heard the witnesses. An appellate court would therefore not ordinarily interfere with findings of a trial court except where wrongly applied to the circumstances of the case or where the conclusion reached was wrong or perverse; Musa v State (2009) 15 NWLR Pt 1165, 467 at 497 paras F-H. See Nneji v Chukwu (1996) 10 NWLR Pt 478 265 at 278 paras C-D; Ogbechie v Onochie (1988) 1 NWLR Pt 70 370 at 390 paras G-H. In the instant case, the trial judge did not believe the testimony of PW1 that she did not know that if she accepted the payment of N5, 985, 000.00, it would be in full and final settlement of the sum owed to the Appellants by the Respondent. This finding of fact by the trial judge was supported by credible evidence on record and the finding was not perverse.

On whether the Consultancy Agreement between the parties was terminated at same point, the learned trial Judge at page 335 – 336 of the Record observed:
“From the bundle of exhibits tendered by the plaintiff PW1, this contract appears not to have been renewed based on the contents of exhibit P dated 16/11/00. This is further established by the call for quotation for consultancy by the plaintiff (Defendant), dated 4/12/00.

By the combined effect of exhibit T dated 6/4/2001 and Exhibit x dated 14/1/02, the indebtedness stood at N7, 980, 000, 00.

By exhibit Y dated 7/3/02 a letter written by counsel to the plaintiff paragraph (H) – (O) it is stated therein that the consultancy ended by March 2001 and the outstanding claim is as stated above”

Clearly, from the above statements, the Trial Judge appraised the evidence and made a finding as to whether the Consultancy Agreement was terminated or not. From the evidence before the court, the Respondent claimed that no services were rendered after the Month of March 1998. The Appellants on the other hand, in one breath said through PW1 at page 302 of the Record that they stopped work in February 2000 and in another breath through Exhibit Y, their Solicitor’s letter to the Respondent that they worked till the end of March 2001. In evaluating the pieces of evidence before the court, the Trial Judge observed that the contract appeared not to have been renewed going by the evidence before the court. Having weighed the available evidence before him, the Trial Judge took the decision to place reliance on the letter written by Appellants’ counsel as to the date when the Agreement came to an end. It is therefore not in doubt that the Trial Judge made a finding on the determination of the Consultancy Agreement. In making its finding, the court considered correspondences exchanged between the parties including letters exchanged in respect of submission of quotation to the Defendant for running of staff clinic. Though the Appellants in Exhibit P denied submitting a fresh quotation to the Respondent, the fact alone that such correspondences were exchanged shows that the Consultancy Agreement to the knowledge of the parties was, even if temporarily at an end. On a close study of the Record of Appeal, I am in no doubt that the Consultancy Agreement did come to an end as held by the Trial Judge. While giving her evidence, PW1 said at page 293 of the Record that she was invited to a meeting where it was made known that “they had forwarded the bill to NAIC for settlement and that on the issue of reinstatement that they will clear with the DG and liaise with us”. PW1 further gave evidence as shown in page 294 of the Record that “awarding the same job to another person under the same agreement is a breach of contract and is irregular”. The inference from these statements is that the 2nd Appellant knew that the Consultancy Agreement had come to an end. I hold therefore that Contrary to the contention of the Appellants’ Counsel that the Consultancy Agreement is yet to be terminated, the Trial Court found, rightly so, that the Consultancy Agreement between the parties had come to an end by the end of March 2001.

Relief 2 of the Respondent’s claims is for:-
“A Declaration that the purported award of the same consultancy service contract to another organization while the service agreement is still existing and binding in so far as it seeks or purports to abridge the right of the Plaintiffs under the agreement is irregular, illegal, wrongful, unconstitutional, null and void and of no effect”.

The law is that a Court has a duty to consider every issue before it. In Egharevba v Osagie (2009) 18 NWLR Pt 1173 299 at 310-311, H-A the court observed:
“Any issue properly raised and canvassed before a trial court or an appellate court must be given a fair hearing and considered. This is so in order to avoid a miscarriage of justice”
Further, a court should not only consider, but should also pronounce on every issue before it. See Okeke-Oba v. Okoye (1994) 8 NWLR (Pt 364) 610. Consequently, having found that the Consultancy Agreement between the Parties had terminated, the Trial Court had a duty to go further to pronounce on the legality or otherwise of that termination. This in substance is the prayer in Relief 2 of the Amended Statement of Claim. The Trial Judge failed in this duty by failing to pronounce on the legality or otherwise of the termination. I shall at this point therefore consider the issue. In this regard, there is need to take a critical look at the relevant clause of the Consultancy Agreement between the parties. Paragraph 6 of the Consultancy Agreement provides thus:
Terms of Termination
“This contract shall be for an experimental period of 2 (two) months commencing as provided in Clause 4 (four) above PROVIDED HOWEVER that the Directorate may adopt, review or terminate this agreement after the initial experimental period of two months. Howsoever the agreement is terminated; the Medical Consultant shall not be entitled to any payment other than for services actually provided as stipulated in this contract up to the date of termination.”

The Appellants have made heavy weather of the illegality of the termination of the Agreement, arguing that it was not done according to due process as provided by the terms of the Consultancy Agreement. It would appear however that the Consultancy Agreement made no specific provision for its termination. From paragraph 6 of this Agreement reproduced above, the relationship between the parties was still at an experimental stage and the terms of the Agreement were open to a review at a future date. It would be safe to infer from the wordings of paragraph 6 above that the mode of termination of the Consultancy Agreement was open ended. The phrase “Howsoever the agreement is terminated” can only be interpreted to mean that for the time being the Agreement could be terminated in any manner. As a matter of fact, in line with the provision that the Directorate may adopt, review or terminate the agreement after the initial experimental period of two months, the Respondent reviewed the Agreement after two Months. If the Respondent exercised its right to review the Agreement after two months, why should it not be able to exercise its right to terminate the same Agreement after two months or more in any manner it wanted? No reason whatsoever. The Appellants were apparently relying on the Respondent’s letter of 6/6/96 which renewed the contract with effect from 1/6/96 until further notice but the renewal was made subject to the conditions under the existing agreement. So irrespective of the fact that the renewal was until further notice, its termination would still be as provided for under the original agreement. Under the original agreement, the respondent reserves the right after the initial two months, to terminate the consultancy at any time howsoever. Termination could be by conduct. The Appellant cannot challenge the fact that there was sufficient act on the part of the Respondent from which to infer termination of the consultancy agreement. Indeed the letter of renewal of 6/6/96 was specifically in respect of the NDE clinic, Victoria Island Lagos. With the movement to Abuja the consultancy can be deemed to have automatically come to an end as according to the agreement termination can occur in any manner. Even the appointment of another consultant can be deemed to amount to conduct terminating the Appellant’s agreement. I find that there is nothing irregular, illegal, wrongful or unconstitutional in the termination of the Consultancy Agreement between the Appellants and the Respondent. The Appellants knew as a matter of fact that the consultancy had come to an end on the movement of the Respondent to Abuja; hence the various correspondences on renewal of the consultancy for the Abuja Clinic. Consequently, the failure of the Trial Court to pronounce on the legality or otherwise of the termination did not occasion a miscarriage of justice since the Respondent had a discretion to decide in what manner the agreement may be terminated. The Supreme Court has held that where the lower court failed to consider an issue or issues for determination, the decision arrived at by that court cannot be set aside unless there was a miscarriage of justice. Ojoh v Kamalu (2005) 18 NWLR Pt 958 523 at 557 paras C-D. See also 7up Bottling Co. Ltd v Abiola & Sons Bottling Co. Ltd (2001) 13 NWLR Pt 730 469

ISSUE NO TWO:
Whether the incorrect findings of facts as relates to when the suit was filed and the number of cassettes tendered as Exhibits and other cogent pieces of evidence led by the Appellants had not adversely affected the evaluation of evidence and findings of facts as well as the quality of the judgment in general and thereby occasioned the Appellants a miscarriage of justice

APPELLANTS’ ARGUMENTS
Briefly put, Counsel’s contention here is that the two statements of the Trial Judge in his judgment that the suit was filed on 1st March, 2004 whereas it was filed on 31st December, 2003 and that the plaintiff tendered one audio cassette while the plaintiff in fact tendered 6 audio cassettes were inconsistencies that led to the Trial Judge arriving at a decision that occasioned a miscarriage of justice.

RESPONDENT’S ARGUMENTS
Learned counsel for the Respondent submitted that the mere reference by the Trial Judge to 1/3/04 as the date the case was first mentioned without more did not occasion a miscarriage of justice in the proceedings. Referring this Court to various cases including that of Pan Atlantic Shipping & Transport Agency Ltd v Rhen Mass GMBH (1997) 3 NWLR Pt 493, 248 at 256 para C-D, Counsel contended that it is not every slip or error in a judgment that will result in an appeal being allowed. For a mistake to have the effect of nullifying a judgment, it must be substantial in the sense that it affected the decision appealed against. On Appellants’ argument that the Trial Judge made reference to only one audio cassette when six audio cassettes were tendered in evidence, Counsel submitted that in their Motion on Notice dated 7th July, 2003, the Appellants pleaded and relied on one audio cassette (p134 of the Record) and that the Appellants are bound by the prayers in the said Motion on Notice. In support of this submission, Counsel referred this court to Commissioner For Works Benue State & 1 Or v Devcon Development Consultants Ltd & 1 Or (1988) 7 SCN Pt 1 P 1 @ 11, where the Supreme Court held that a Plaintiff is bound by the prayers in his Motion before the court. Counsel argued further that even if more than one cassette were admitted in court, the Appellants made no attempt to play back any cassette to the hearing of the court during the 6 year duration of the proceedings at the Lower Court and that the Appellants made no reference to the cassettes other than mere admission. It was therefore Counsel’s conclusion that there is no evidence to be evaluated or appraised by the Trial Court from the audio cassettes, the contents of which were unknown.

RESOLUTION OF ISSUE TWO:
In his Judgment at page 330 of the Record the Trial Judge stated that the case was first mentioned on 1/3/04. I must say that I do not understand the Appellants’ problem with this statement of fact. The Trial Judge did not say that the case was filed on this date but that it was first mentioned on the said date. The date of filing a suit and the date of first mention in a court must necessarily be different. I have taken time to study the Record of Appeal and the first proceeding of the Trial Court appearing in that Record is the Proceeding of 1/3/04 which can be found at page 266 of the Record. There is no evidence from the Record of Appeal, of any proceeding of the Trial Court in respect of this case before 1st March, 2004. Consequently, there is nothing inconsistent about the said statement. Obviously the Trial Judge was not referring to the date of filing of the suit but to the date when the case was first heard in court. The error here is therefore clearly that of misconception by Counsel and certainly not an inconsistency on the part of the Trial Judge.
Moreover even if the Trial Judge had inadvertently stated a wrong date as the date when the case was filed, I agree with Respondent’s Counsel that it is not every slip or error in a judgment that will result in an appeal being allowed. For a mistake to have the effect of nullifying a judgment, it must be substantial in the sense that it affected the decision appealed against. See Cookey v Fombo (2005) 15 NWLR Pt 947 182 @ 201 E-F.
On the issue of the reference of the Trial Judge to the number of audio cassettes tendered as Exhibits and the effect of that reference on the evaluation of evidence and findings of facts by the Trial Judge, there is need to have recourse to the records before the court. In their amended statement of claim and in their motion on Notice dated 7th July, 2003, the Appellants pleaded and relied on one audio cassette. They are bound by the prayers in their pleading and application before the court.

In Paragraph 45 of the amended Statement of Claim the Appellants averred:
“….An audio cassette containing details of meeting, conversations, consultations and issues on………”
And in paragraph 48 of the said amended Statement of Claim it was averred
“….The Plaintiffs plead and will rely on an audio cassette containing……..”
Having pleaded ‘an audio cassette’, the Appellants are bound by their pleadings and the Trial Judge should not have admitted 6 audio cassettes when the Appellants pleaded one. As succinctly observed by the Supreme Court in Osuji v Ekeocha ( 2009) 16 NWLR (Pt 1166) 81 @ 125 F-G
“A claim originates an action. It is the pivot or the cynosure of the case. It sets out the relief or reliefs sought by the Plaintiff. A Plaintiff is bound by his claim and must not deviate from it willy-nilly. A Plaintiff cannot present a case different from his claim as the law regards such an unsolicitated procedure completely outside the law”.

Hence, even if the Trial Judge had considered and evaluated the contents of the 5 extra audio cassettes that would have been an effort in futility because that evidence not having been pleaded would have had to be expunged from the records of the court. In effect, only one audio cassette was effectively before the court. Again as observed by Respondent’s Counsel, “even if more than one cassette were admitted in court, the Appellants made no attempt to play back any cassette to the hearing of the court during the 6 year duration of the proceedings at the Lower Court and the Appellants made no reference to the cassettes other than mere admission. The failure of the Appellants to play the audio cassette in open court means that the evidence was not properly before the court as the court cannot play the audio cassette in chambers in the absence of the opposing party. Learned counsel for the Appellant in his reply brief at page 7 argued thus:
“The Respondent was given notice to inspect and admit audio cassettes and given 10 days to listen to and or hear the Audio cassettes and to agree to the admission thereby without further proof at the office of the Registrar of the Court below. See pages 132 – 133 and 150 of the Record of Appeal which the Respondent craftily avoided”

With all due respect to learned counsel, that is a complete misconception of the law regarding admissibility in evidence of audio cassettes. An audio cassette to be relevant and constitute evidence which the learned trial Judge can use, it must be played in open court to the hearing of the parties and the presiding Judge. When that is done, then opportunity is given to the opposing party to cross-examine on the audio cassette. Without such procedure being adopted, tendering the audio cassette in evidence without objection is as good as not tendering the audio cassette at all because the trial judge is ignorant of the contents of the audio cassette and will accordingly not make use of it.
Learned counsel for the Respondent is consequently right that there is no evidence to be evaluated or appraised by the Trial Court from the audio cassettes, the contents of which were unknown. See Sijuade v. Oyewole (2011) LPELR – 4869(CA). If the Appellants’ Counsel wanted to enlighten the court on the contents of the purported admitted cassettes, it was his duty to draw the attention of the court to the said evidence. I find that the statement of the Trial Judge that the case was first mentioned on 1/3/04 and that one audio cassette was tendered as Exhibit by the Appellants did not in any way adversely affect the evaluation of evidence and findings of facts by the Trial Judge and thus did not lead to a miscarriage of justice.

In order to succeed in an Appeal, the onus lies squarely on the Appellant to satisfy the Court that the decision of the trial court was wrong. If he fails to do so, the appeal is bound to be dismissed. Ogologo v Uche 14 NWLR Pt 945 226 at 246 paras C-E. See Obodo v Ogba (1987) 2 NWLR Pt 54 1;

The decision of a trial court is said to be perverse when it ignores the facts or evidence before it and arrives at conclusions which when considered as a whole amounts to a miscarriage of justice. In such a case, an appellate court is bound to interfere with such a decision and to set it aside. Nepa V Ososanya & Ors (2004) 5 NWLR (Pt. 867) 601; Onyekwelu v Elf Petroleum Nig Ltd (2009) 5 NWLR Pt 1133 181 at 202 paras A-B.

No such situation exists in the appeal before us. The evaluation of the evidence by the trial Judge is supported by the facts presented before the court. The areas where specific pronouncement were not made by the trial Judge did not result in any miscarriage of justice.

In the final result, this appeal lacks merit. It is hereby dismissed. The judgment of Nyako J. of the Federal High Court delivered on the 3rd day of December 2009 is affirmed. I make no order as to costs.

AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Iyizoba, JCA, and I agree with his reasoning and conclusion. He has dealt with all the issues, and I have nothing useful to add except to say that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – see Oyekola V. Ajibade (2004) 17 NWLR (pt. 902) 356 & Idakwo V. Nigerian Army (2004) 2 NWLR (Pt. 857) 249.

In this case, the 2nd Appellant is a Medical Doctor, and the lower Court did not believe her explanation that she did not know that if she accepted the said amount, it would be in full and final payment settlement of their claims. Coming from a Medical Doctor, such an explanation is pretty hard to swallow. So, the lower Court’s reasons for believing the Respondent cannot be faulted, and the end result is that I also dismiss the appeal as it lacks merit. I abide by the consequential orders in the lead Judgment, including the order on no costs.

CHIMA CENTUS NWEZE, J.C.A.: My Lord, Iyizoba JCA, obliged me with the draft of the leading judgment just delivered now. I am in agreement with the leading judgment that this appeal is unmeritorious. I abide by the consequential order in the said leading judgment.

Appearances

Josiah Daniel-Ebune, Esq., with Jude Ezeamaechi Esq.,For Appellant

AND

Chris Wogu Esq.For Respondent