GODWIN C. AZUBUIKE & ANOR. V. GOVERNMENT OF ENUGU STATE & ANOR.
(2013)LCN/5883(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of January, 2013
CA/E/250/2006
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. GODWIN C. AZUBUIKE
2. INNOCENT U. UGWU Appellant(s)
AND
1. GOVERNMENT OF ENUGU STATE
2. THE ATTORNEY-GENERAL OF ENUGU STATE Respondent(s)
RATIO
ESSENTIAL INGREDIENTS OF A VALID CONTRACT
One of the essential ingredients for the existence of a valid contract is the capacity to contract. This court per Muhammad JCA in SHELL PETROLEUM DEVELOPMENT COMPANY LTD VS. FRONTHINE TELEVISION LTD. (2011) LPELR 4952 following the decisions in AMANA SUITS HOTELS LTD. VS. PEOPLES DEMOCRATIC PARTY (PDP) (2000) 6 NWLR (Pt 1031) 453 at 476 and OBAIKE VS. B.C.C. PLC (1997) 10 NWLR (Pt. 525) 435 held that “A legally enforceable agreement which a contract is, has the following necessary ingredients, offer, acceptance, consideration, intention to create legal relationship and the capacity to contract. It has been repeatedly held that these five necessary requirements must co-exist and a contract, cannot in law, be formed in the absence of any of the five ingredients.” Part of the legal duty of the plaintiff to prove his case includes pleading facts in the statement of claim to show the existence of a legally enforceable contract. PER ABDUL-KADIR, J.C.A.
WHETHER OR NOT THE GENERAL PRINCIPLE OF AGENCY APPLY IN PUBLIC LAW
The general principle of agency apply in public law. So a servant, agent or organ of government cannot bind the government by acting without or in excess of the authority of such servant, agent or organ. This principle is statutorily prescribed in Section 91(2) of the Contract Law cap 26 vol. 1 Revised Laws of Enugu State 2004 which provides that the State shall bound by a contract made on its behalf by its servants or agent where such contract is within the authority, actual or ostensible, of such servant or agent. PER ABDUL-KADIR, J.C.A.
WHETHER OR NOT A CITIZEN IS ENTITLED TO RELY ON THE ORGAN OF GOVERNMENT
It has become judicially accepted that in some situations a citizen is entitled to rely on the organ or government having the authority it has asserted if he cannot reasonably be expected to know the limits of that authority and he should not required to suffer for his reliance on such assertion if it turns out that the organ lacks the necessary authority. ROBERTSON VS. MINISTER OF PENSIONS (1949) 1 KB 227 at 232 per Denning J. (as he then was) FALMOUNTH BOAT CONSTRUCTION CO. VS. HOWELL (1950) 1 KB16 at 26 per Denning Lid Re LCA.C) (an Infant) (1971) 3 ALLER 743 and de Smiths Judicial Review of Administrative Action 4th by J.M. Evans (4th Edition, 1980) Stevens, (London) at pp 102 – 104. It is clear from the long line of judicial decisions on the point that it is extremely difficult to define with any degree of precision the circumstance in which the Courts will be prepared, in the interest of “Fairness” to the individual, to derogate from the orthodox motions of ultra vires. This is particularly so with cases of detrimental reliance on the negligent misstatements and assurances of government officials. In cases involving contract with government or its officials or organs, the situation appears more clear cut. Unless such contract is within the scope of authority, the Courts have treated it as simply nugatory or not binding on government. The Supreme Court of Nigeria in Knight Frank and Rutley Nigeria Limited vs. Attorney General of Kano State (1998) 7 NWLR (Pt. 556) 1 refused to apply equitable estoppel inspite of the fact that there was detrimental reliance on the act of an official of State Government. According to the Court, per Wali JSC at pages 20 – 21 held 1.
“The Hon. Commissioner of Finance who entered into the contract with appellant for and on behalf of the respondent lacked the capacity to do so, and accordingly the contract is ultra vires, null and void and of no legal effect. The purported work undertaken cannot be forced on the respondent”. PER ABDUL-KADIR, J.C.A.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A: (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Enugu State, sitting at Enugu delivered by Akubuilo, J. on the 23rd day of June 2006.
The facts leading to this appeal are stated thus:-
The appellants herein as plaintiffs instituted an action in the lower court against the respondents wherein they claimed a total of N5 Million special and general damages being payment for assets received for the Government of Enugu State belonging to defunct ENDC, ADC, ADA and commodity Boards.
The contract was awarded during the military regime through Enugu State Government’s special committee on Anti-Government Activities whose chairman was one squadron leader TSAKAR.
Pleadings were duly filed an exchange and in answer to the plaintiffs claim the defendants stated that the entire transaction was a scam and there was no valid contract. In another breath the defence posited that since no estate valuer was called to determine the value of the job executed by the plaintiffs in the so called “scam” or “invalid” contract the plaintiffs were not entitled to the amount of compensation claimed as damages.
At the trial the secretary of committee testified to the knowledge of the said contract and authenticated the documents tendered by the plaintiffs in support of their claim.
In its judgment the trial court held inter-alia that there was no valid contract as the Government Gazette establishing the Committee was not tendered and the rules and regulations for the award of the contract of such magnitude were not followed.
Dissatisfied with the judgment, the appellants appealed to this court vide their Notice of Appeal dated 24th August 2006 and filed on the 29th August 2006 containing three grounds of appeal.
The appeal was heard on the 30/10/2012. Counsel to the appellants Mrs. K Eyiuche informed the court that the appellants brief of argument is dated 17/4/07 and deemed filed on 28/6/07 . Counsel adopted the brief of argument and urged the court to allow the appeal, set-aside the judgment of the lower court and allow the claim.
Counsel to the Respondents, Mr. J.O. Edeh stated that the Respondents, brief of argument is dated 27/8/07 and deemed filed on 22/2/2010, Learned counsel adopted the brief and urged the court to dismiss the appeal.
The appellants in their brief raised the following issues for determination:
1. Whether there was a valid contract between the appellants and the Enugu State Government.
2. Whether a valid pre-action notice was issued to the Enugu State Government and
3. Whether the appellants proved their entitlement to their claim in the lower court.
It is noteworthy that these were the same issues argued by the parties at the trial nisi prius and which the court a quo decided resulting in this appeal, so this appeal is essentially contending that those issues were not correctly decided by the court a quo. I will adopt the same issues but couch the first two differently as follows:-
1. Whether the Government of Enugu State is bound by the contract entered into by its Special Standing Committee on Anti-Government Activities with the appellants
2. Whether a notice of intention to sue the Government of Enugu State was delivered to its Secretary before the commencement of the Suit at the court a quo.
The first issue for determination which is derived from the first ground of appeal attacks the part of the judgment of the trial judge that the appellants were not awarded the contract by the Government of Enugu State. The court a quo so concluded following its decision that “DW1 had stated in evidence that it is only the State Tenders Board that could handle the award of a contract where such a huge amount of money was involved, and that the members of the Committee advised the Squadron Leader to that effect, but the Squadron Leader went ahead to award such a contract to the plaintiffs.
No Government Gazette was tendered[ by the plaintiffs to show that the State Government created the said committee and entrusted it with such enormous powers. In the absence of such a Government Gazette to buttress their claims, the plaintiffs could have had some relief if their appointment paper was signed by the Secretary to Enugu State Government. This was not so. The Secretary to a State Government can have power to bind the State Government. The important papers tendered were all signed by the said Squadron Leader, who is a personnel of the Air Force. In the absence of a Government Gazette in proof of the fact that such Squadron Leader had the capacity to bind the State Government, this court can not agree with the plaintiffs that the action of the Squadron Leader in awarding the contract in question was the action of the Enugu State Government, where more so the Rules and regulations for the award of the contract was not followed, and no where was a document signed by the Secretary to the State Government tendered or shown, to give a resemblance of authority of the State Government to the contract or activities of the committee. This court therefore, hereby rules that the contract awarded to the plaintiffs by the Squadron Leader as shown by Exhibit A is not a contract awarded by Enugu State Government.” The appellants argued that this part of the judgment went outside the case of the parties before the trial court and relied on facts that were not pleaded or in evidence. To buttress this point, Learned Counsel for the appellants specifically argued that the Finance and General Purposes Committee was not mentioned, nor was it suggested that it is the same as the tenders board, and that it was not the case of the defence that the action of the Chairman of the Enugu State Government’s special committee on Anti-Government Activities was not the act of Enugu State Government.
Learned Counsel for the respondents has argued replicando that the respondents in their statement of defence and evidence in defence maintained a consistent position that there was no valid contract between the parties.
The question that arises at this juncture is whether it was part of the defence of the respondents that the Chairman of the said Committee had no authority to enter into the contract on behalf of Enugu State Government and that such contract entered into by the said Chairman without the authority of the said Government is not valid. I will now proceed to find out what the defence of the respondents was concerning the said contract. I will start by reproducing herein the portion of the pleadings of both sides concerning the existence of this contract.
The appellants in paragraphs 1 – 8 and 12 of their statement of claim stated that:
1. The plaintiffs are businessmen involved alia in the recovery of properties with their principal place of business at No. 5 Ezebude Street, Abakpa-Nike in Enugu East Local Government Area of Enugu State within jurisdiction.
2. The 1st defendant is the Government of Enugu State of Nigeria.
3. The 2nd defendant is the Chief Legal Officer of the 1st defendant.
4. Sometime in 1998, there was a contract between the plaintiffs and the 1st defendant, wherein the 1st defendant through its “standing Special Committee on Anti-Government Activities in Enugu State” appointed plaintiffs to locate and recover all the properties of Central Investment company Limited (in voluntary Liquidation),
5. By a letter dated 18th May, 1998, Reference No. ENS.SSC/AGA/05/96 and signed by the chairman of the said committee in paragraph 4 above, approval of the appointment of the plaintiffs was conveyed to the plaintiffs. A copy of the said letter is hereby pleaded.
6. By a letter dated 19th May, 1998, plaintiff accepted their appointment to recover the said properties. A copy of the letter is hereby pleaded.
7. The 1st defendant through the chairman of the committee in paragraph 4 above, caused to be written a letter dated 28th May, 1998, Reference No. ENS/SSC/AGA/05/42 introducing and advising all Enugu State Ministries and Parastatal involved in the search and recovery exercise to co-operate with the plaintiffs. A copy of the said letter is hereby pleaded.
8. Plaintiffs without being mobilized financially, proceeded to execute patriotically their part of the contract which took them variously to farm location at Adani, Ezillo, Adada and Ezamgbo with the attendant transportation and other logistic expenses.
9. By a letter dated 23rd February, 1999, Reference No. ENS/SSG/GS/58/IX/T/8, the 1st defendant through its Secretary invited the plaintiffs to a meeting which the plaintiffs attended. A copy of the said letter is hereby pleaded.
The reply of the respondents to the above paragraphs of the statement of claim is contained in paragraphs 4, 7, and 9 of the statement of defence as follows:-
“4 The defendants deny paragraph IV of the plaintiffs Statement of Claim and further state that the acts of the plaintiffs as therein contained, exposes their entire claim as spurious, absurd, incredulous, suspect and a well calculated scam (in concert with some military officers in the out gone military administration in the former Enugu State including what is now known as Ebonyi State) to sell off government properties and pocket the dividends and/or proceeds under the guise of the so-called ‘anti government activity’. The defendants shall at the trial, put the plaintiffs to the strictest proof as to the competence of the so-called “standing Special Committee on Anti-Government Activities in Enugu State” to award a contract of such magnitude without reference to the finance and General Purposes committee which at the material time, was the competent organ of that government responsible for the award of all legitimate government contracts and the recommendation to government, to pay for contracts duly executed.
7. The defendants deny paragraph 12 and 13 of the plaintiffs Statement of Claim and further state that in essence, the letter under reference in paragraph 12 invited the plaintiffs to a meeting wherein it was explained to the Plaintiffs that their whole transactions and/or acts in the alleged contract were absurd, incredulous and suspect, hence the defendants at the trial, shall rely on their defence in paragraph V (supra).
9. The defendants deny paragraphs 14, 15 and 16 of the plaintiffs Statement of Claim and further state that the entire Claims herein are absurd, incredulous, suspect, baseless and frivolous. The defendants shall at the trial, urge the trial Court to dismiss same as no contract in actual fact, existed between the plaintiffs and the defendants. The defendants further adopted their defences in paragraphs IV and V (supra).
The appellants testified for themselves and gave evidence in proof of the facts reproduced above. The first appellant testifying as PW1 further stated in response to paragraph 4 of the statement of defence that “it is not true as alleged by paragraph 4 of the statement of defence that our acts were scrupulous, spurious absurd. The standing special committee in Anti-government Activities in Enugu state was the proper organ to award the contract to us” (sic).
The evidence in defence by the respondents was elicited through DW1, the secretary of the Standing Special Committee on Anti-Government Activities as follows:- “The plaintiffs in this case NEVER appeared before any TENDERS Board before the contract was awarded to them. When the matter of the CONTRACT came up, the Committee members discussed the issue with the Chairman who was a Squadron Leader in the Air force, and we informed him that the amount involved is not such that could be handfed by the Committee. The Squadron Leader told us he would discuss the issue with the Military Administrator. During our next meeting we saw the Squadron Leader presented to us a contract paper signed by him. Exhibit A is what the Chairman showed us. We advised the Chairman that by the volume of business involved in the transaction, the contract is above our capacity to award and since it involves huge sums of money, the contract should be the business of the State Tenders Board to award. I am NOT aware in my capacity as the Secretary of the Committee, that the contract came before the State Tenders Board. In Exhibit D,1 in my capacity as Secretary made the remarks “items not yet sold”.
It is clear from the foregoing that it was part of the defence that the Chairman of the Standing Special Committee on Anti-Government Activities had no authority to award the appellants the said contract on behalf of Enugu State government and that therefore the said contract was not valid. This matter was clearly in issue on the pleadings and the evidence. Appellants knew that this was one of the defence of the respondents. That is why the first appellant as PW1 testified that the said standing committee was the proper organ to award the contract to them. It was clearly part of the issues presented by the parties for determination before the trial Court. It was not a matter outside the ambit of the case of the parties. The trial Court was right to have considered it. However, I am minded to agree with Learned Counsel for the appellants that some of the facts relied on by the trial Court in the decision were not pleaded or not in the evidence before it. The trial Court referred to the evidence of DW1 that it is only the State Tenders Board that can award a contract of such magnitude and that the committee members discussed the issue with the chairman and advised that it is only the Tenders Board that can award the contract, yet he went ahead and awarded the contract. This fact was not pleaded. Evidence on it should not have been allowed. Although, the appellants did not object to this testimony at the time DW1 was giving it in his examination-in-chief, their counsel in his written address at the trial court contended that the issue of not passing through the Tenders Board was not pleaded and all evidence led in that regard went to no issue.
The trial Court did not decide this objection and ignored it completely while relying on the same piece of evidence that is objected to. The trial Court had a duty in law to decide the objection one way or the other. If it is overruled, then it can proceed to rely on that evidence. To simply ignore the objection that the fact was not pleaded and proceed to rely on the evidence of such fact is wrong in law, and is not consistent with fair adjudication.
If the trial Court had considered the objection, it would have realized that there was merit in the objection. The respondents in their statement of defence did not plead that the State Tenders Board was the competent organ to award such contracts. In paragraph 4 of their statement of defence they did plead that the finance and General Purposes Committee was at the material time the competent organ of Enugu State Government “responsible for the award of all legitimate government contracts and the recommendation to pay for contracts duly executed. Their evidence in defence through DW1 is not consistent with the above pleading in paragraph 4 as it states that it is the States Tenders Board that is the only organ that can award such contracts. I agree with Learned Counsel for the appellants that there is nothing in the pleadings or evidence suggesting that the State Tenders Board is the same as the Finance and General Purpose Committee. It is my view that since the evidence that the State Tenders Board is the only organ to award such contracts is not pleaded, the evidence of DW1 on the fact go to no issue and should not have been referred to or relied on by the trial Court in reaching its decision. It is now settled by a long line of decisions that parties are bound by their pleadings. Therefore evidence at variance with the pleadings go to no issue, and if already admitted, must be ignored see UZOCHUKWU & ORS. VS. Eri (1997) 7 NWLR (Pt.514) 24, OGBODUME & ORS VS. ABEGBE E ORS LPELR 3316 (SC). Once the rules of pleadings are infringed or brushed aside the trial cannot be free and fair! Consequently there will be no fair hearing. It is also for this that reliance must not be placed on facts not pleaded.
Let me now deal with the question of the capacity of the Committee or its Chairman to contract on behalf of the 1st respondent. The decision of the Trial Court that no Government Gazette was tendered by the plaintiffs to show that the State Government created the said committee is inconsistent with case presented by the parties before it. The existence of the committee was never an issue in the pleadings and the evidence. What was in issue was the competence of the committee to award the contract in question. The respondents did not in their statement of defence contend that the State Government did not create the committee or that it never existed. The evidence of the respondents through DW1 acknowledged the existence of the committee as an agency of the Military Administration of Enugu State. DW1 stated that he was the secretary of the committee and that the Squadron Leader who signed the contract in issue here was the Chairman. He also testified that the other members advised the Chairman that the committee has no power to award such contract and the chairman told them he was going to discuss the issue with the Military Administrator. Exhibits A and C, the letter of award and letter introducing the appellants to the Ministries, Parastatals of government and individuals are all in the letter headed papers of the Enugu State Government. Since the existence of the committee was not an issue in the trial, there was no basis for the decision of the trial court that a government gazette was necessary to show that the State Government created the committee. It is clear from the tenor of the pleadings and the evidence particularly the testimony of DW1 that the committee existed and operated as an agency of the Military Administration of Enugu State. The central point of dispute between the parties was whether the award of the contract by the chairman of the committee can be said to be an award made by the Enugu State Government or with its authorization.
There was nothing in the pleading or the evidence to show the powers, functions and authorized activities of the committee. No evidence was led to show the objects and purpose the committee was established and authorized to pursue. There is no letter or any other instrument from the Government of Enugu State conveying actual authority to the committee to locate and recover the properties of the Central Investment Company Limited (In voluntary Liquidation). This is important because it will help to determine whether the state on whose behalf the agent acted can be bound by the actions of the agent. There is no doubt that if the action is outside the authorized powers, functions and objects of the agency, the State cannot be bound by such action. It is therefore necessary that in any action against the government of a State on account of a contract made by its agent, the plaintiff plead in the statement of claim and adduce evidence of facts showing its relationship with the government of the state and that the contract was made in pursuance of the purposes and objects for which it is set up and in exercise of the powers and functions authorized by the State. This will help show the capacity to make the contract on behalf of the State. One of the essential ingredients for the existence of a valid contract is the capacity to contract. This court per Muhammad JCA in SHELL PETROLEUM DEVELOPMENT COMPANY LTD VS. FRONTHINE TELEVISION LTD. (2011) LPELR 4952 following the decisions in AMANA SUITS HOTELS LTD. VS. PEOPLES DEMOCRATIC PARTY (PDP) (2000) 6 NWLR (Pt 1031) 453 at 476 and OBAIKE VS. B.C.C. PLC (1997) 10 NWLR (Pt. 525) 435 held that “A legally enforceable agreement which a contract is, has the following necessary ingredients, offer, acceptance, consideration, intention to create legal relationship and the capacity to contract. It has been repeatedly held that these five necessary requirements must co-exist and a contract, cannot in law, be formed in the absence of any of the five ingredients.” Part of the legal duty of the plaintiff to prove his case includes pleading facts in the statement of claim to show the existence of a legally enforceable contract.
The general principle of agency apply in public law. So a servant, agent or organ of government cannot bind the government by acting without or in excess of the authority of such servant, agent or organ. This principle is statutorily prescribed in Section 91(2) of the Contract Law cap 26 vol. 1 Revised Laws of Enugu State 2004 which provides that the State shall bound by a contract made on its behalf by its servants or agent where such contract is within the authority, actual or ostensible, of such servant or agent. Furthermore it is in the provisions of 92 of the same Law that where persons or public bodies are expressly or by necessary implication given powers or duties for public purposes, such persons or bodies have no capacity to make any contract which is incompatible with the due exercise of such powers or the due discharge of such duties. In our present case there is nothing in the pleadings or the evidence showing the relationship between the committee and the State apart from stating in paragraph 4 of the statement of claim that Enugu State Government through one of its Special Standing Committee on Anti-Government Activities awarded a contract to the appellants to locate and recover certain properties. There is also nothing in the pleadings and the evidence showing the object and purpose for which the committee was established by the State Government and the powers, duties and functions it is authorized to exercise by the State. It becomes difficult to know if the contract in question is in pursuance of the objects and purposes for which the State government established it and whether it is part of the authorized powers, duties and functions. These matters cannot be assumed, they must be clearly pleaded and proven to establish the capacity of the committee to award the contract to the appellants.
Furthermore, there is nothing in the pleadings and the evidence to show that the committee or its Chairman was actually authorized to award such contract. There is nothing in the pleadings or evidence to suggest that Enugu State government held out the said committee or its chairman as having its authority or the capacity to enter into such contract on its behalf. The 1st appellant testifying as PW1 stated in his evidence in examination-in-chief that “the assignment given to us was approved by the Military Government which approval was conveyed to us by D.G. Special duties on 20th May 1998″. This fact was not pleaded in the plaintiff’s statement of claim or any of the pleadings. The evidence therefore goes to no issue and cannot be relied on. In any case the appellants were unable to tender in evidence the said written approval. Their attempt to tender the photo copy failed as the trial Court refused to admit it.
The appellants stated in paragraph 12 of their statement of claim that in response to their solicitor’s letter of demand to the 1st respondent, its secretary wrote to them inviting them for a meeting but led no evidence to prove this fact. It was rather the defendants that led evidence through DW1 to prove it. There is nothing in the pleading or the evidence to show what was discussed at the meeting and its outcome what is clear however is that there is nothing to show that Enugu State Government accepted to be bound by the contract.
The appellants did not even allege in their statement of claim nor did they lead evidence to show that the 1st respondent held out the committee or its Chairman as having its authority o the capacity to so contract. Therefore the committee cannot be said to have had the ostensible or apparent authority of Enugu State Government to contractually engage the appellants to locate and recover properties. S.95(2) of the Enugu State Contract Law cap. 26 states that the authority of a servant or agent is ostensible” when the servant or agent though not in fact so authorized, has been held out by the master or principal, as the case may be, or by someone, having authority to do so. This definition has been so judicially restated over time immemorial across jurisdictions that it is now trite. I have seen no need here to belabour it. The mere fact that it is a committee of Enugu State Government is not enough reason to assume that it has the actual and ostensible authority of that government to do anything under the sun. It must have been established to exercise certain powers and discharge certain functions and duties in pursuance of certain public purposes. It is important that before one enters into any contract with any servant, agent or organ of a Government, he or she takes step to find out if such contract is within the usually or wholly possessed authority of such organ, agency or servant of the government. There is more need for this caution in a situation such as the one in this case where all acts concerning the making of this contract were that of one man, the chairman of the committee. He signed exhibit A the contract letter and exhibit C introducing the appellants to individuals, government ministries and parastatals, as persons engaged by the committee to locate and recover government properties. Even if the contract is within the usual or wholly possessed authority of the agency of government, the award of the contract must be made by the competent authority established and empowered by law to make such awards and the award must be in accordance with the rules and regulations for the making of contracts with government. The importance of this requirement of due process in ensuring the existence of actual or ostensible authority is highlighted by S. 90(3) and 92(3) of the said Contract Law in providing that the State shall not be liable under a contract made on its behalf by a servant or agent without its actual or ostensible authority, merely because such contract is within the authority usually or wholly possessed by servants or agents. These provisions of S. 90(3) and 92(3) in my view are meant to ensure compliance with the established due to process for award of contracts on behalf of the State so that even if the contract is within the usual or wholly possessed authority of the agency or servant unless it is awarded by the competent authority and in accordance with the rules and regulations for such award, it cannot be treated as an award by the State or on its behalf and so the State cannot be bound by the contract. In WESTERN FISH PRODUCTS LTD. VS. PENWTH DC (1978) LUR 185 at 200-203, an English Court applying the principle of usual authority in public Law, held that in the absence of holding out by a public authority,the unauthorized act of an officer even though within his usual authority was not binding on the public authority. Those who enter into contracts with government or its organs should know the rules, regulations and procedures for the making of valid contracts with government. If they do no know, it is their duty and part of the requirement of due diligence to take steps to know and familiarize themselves with those rules and regulations. It is no excuse that the independent contractor has no notice or that he is not on a position to know the internal administrative processes of Government or its organ. The due process of contracts with government is a matter of public knowledge. In any case the requirement of actual or ostensible authority of a servant or agent to act or contract on behalf of Enugu State Government is a matter of Law Statutorily prescribed in S.90 (3), 91 and 92 of the contract Law cap 26. Ignorance of this statutory requirement is no excuse for as is often said ignorantia Juris non excusat, Furthermore there is nothing in the above provisions of cap 26 of the 2004 Revised Law of Enugu State avoiding their operation on grounds that an independent contractor dealing with the servant or agency of government did not know or is not in a position to know that such servant or agency did not have the actual or ostensible authority of the State to contract on its behalf.
Having determined as above, I am minded to proceed to affirm the decision of the trial court that the 1st respondent is not bound by the contract. I am unable to do so straight away because of certain features in this case that raise issues of equity and fairness to the appellants. Both sides agree that following the unauthorized award by the Committee or its Chairman, the appellants proceeded to expend their own resources to search, locate and recover the properties. It is obvious that the respondents benefited by the recover of these properties, While the legal consequences of the unauthorized acts of its organ or official are as stated above, should not the 1st respondent be held bound to compensate the appellants for their expenses, having taken benefit from their efforts. The Courts over time have continued to be confronted with this kind of situation where members of the public rely to their detriment on the unauthorized acts or assurances of State officials. The question has always been whether equitable estoppel should be allowed to operate to ameliorate the hardship that the member of the public would suffer from a strict application of the doctrine of ultra vires. The over time is that the judicial approach to the determination of this question in each case is influenced by the subject matter and the peculiar facts of each case. It has become judicially accepted that in some situations a citizen is entitled to rely on the organ or government having the authority it has asserted if he cannot reasonably be expected to know the limits of that authority and he should not required to suffer for his reliance on such assertion if it turns out that the organ lacks the necessary authority. ROBERTSON VS. MINISTER OF PENSIONS (1949) 1 KB 227 at 232 per Denning J. (as he then was) FALMOUNTH BOAT CONSTRUCTION CO. VS. HOWELL (1950) 1 KB16 at 26 per Denning Lid Re LCA.C) (an Infant) (1971) 3 ALLER 743 and de Smiths Judicial Review of Administrative Action 4th by J.M. Evans (4th Edition, 1980) Stevens, (London) at pp 102 – 104. It is clear from the long line of judicial decisions on the point that it is extremely difficult to define with any degree of precision the circumstance in which the Courts will be prepared, in the interest of “Fairness” to the individual, to derogate from the orthodox motions of ultra vires. This is particularly so with cases of detrimental reliance on the negligent misstatements and assurances of government officials. In cases involving contract with government or its officials or organs, the situation appears more clear cut. Unless such contract is within the scope of authority, the Courts have treated it as simply nugatory or not binding on government. The Supreme Court of Nigeria in Knight Frank and Rutley Nigeria Limited vs. Attorney General of Kano State (1998) 7 NWLR (Pt. 556) 1 refused to apply equitable estoppel inspite of the fact that there was detrimental reliance on the act of an official of State Government. According to the Court, per Wali JSC at pages 20 – 21 held 1.
“The Hon. Commissioner of Finance who entered into the contract with appellant for and on behalf of the respondent lacked the capacity to do so, and accordingly the contract is ultra vires, null and void and of no legal effect. The purported work undertaken cannot be forced on the respondent”.
In determining if equitable estoppel should be allowed to moderate the operation of the principle of ultra vires in cases of this nature, I think that the public interest should also be considered. It is in the public interest that the expenditure of public funds be done in a manner that accords with due process as prescribed by law, to ensure accountability and transparency. Government expenditure for the public good must be in an organized or regulated manner in accordance with the Appropriation Law of the State. This is the only way to guarantee efficient and effective implementation of State budgets for the maximum public good to ensure good governance. A situation that allows indiscriminate procurements, award of contracts and expenditures of public funds by any officer or organ of government unilaterally will result in mass abuse of office, corruption, bad governance and endanger the welfare and the good of the people. Against this background, it is my view that it will not be in the public interest to derogate from the provisions of Sections 90(3), 91 and 92 of the Enugu State Contract Law cap. 26 for the reason of the detrimental reliance of the appellants on the acts of the Committee or its Chairman.
As things are on the pleadings and the evidence, I can only hold that the capacity of the committee to award t he appellants the contract on behalf of Enugu State Government is not established. It is in the light of the foregoing that I uphold the decision of the Trial court that the contract to search, locate and recover properties of Central Investment Company Limited awarded to the appellants by the Chairman of the State Special Standing Committee on Anti-Government Activities is not a contract awarded by Enugu State Government and a such the said government is not bound by the contract.
At this juncture, I think I should consider the effect of the error of the trial court in referring to or relying on the unpleaded fact that the contract award was not passed through or made by the State Tenders Board. The decision of the trial court that the Committee lacked the capacity to contract on behalf of the 1st Respondent was not based on only this reason. The Court also relied on the absence of a letter of approval from the Secretary of the 1st respondent and the absence of a gazette showing the powers given the Committed by the respondent. These other reasons were not challenged by the appellants in their argument. For this and the reasons I have stated in the determination of issue No. 1, I think that the decision can still stand in the absence of reliance on the fact that the award was not passed through the State Tenders Board. I therefore hold that the error is not substantial and has not occasioned a miscarriage of Justice.
An error of a trial court can only be substantial or result in a miscarriage of Justice if the court relied solely or substantially on it to reach a wrong decision. As the Supreme Court held in UZOCHUKWU VS. ERI (1997) 7 NWLR (Pt.514) (1997) LPELR – 3454 (SC) Per Iguh JSC at 24 relying on AYEM VS. SOWEMIMO (1982) 5 SC 560 at 73-75 and UKEJIANYA VS. UCHENDU 13 WACA 45 at 46 what an appellate court has to decide is, whether the decision of the trial Judge was right and not whether his reasons were. It is only if the misdirection or error had caused him to arrive at an erroneous or wrong decision that it would be material. It is now trite law that it is not every error of a trial court that must result in the impeachment or setting aside of a decision of the court. It is only an error that is substantial in the sense that it occasioned a miscarriage of Justice. See UZOCHUKIVU VS. ERI (1997) 7 NWLR (Pt, 514) 1 at pp.24 and 30 UDEZE & ORS VS. CHIDEBE & ORS (1990) NWLR (Pt. 125) 141, I hold that this error does not justify a reversal of the decision of the trial court that the Committee lacked the capacity to contract. Issue No. 1 is therefore resolved against the Appellants in favour of the Respondents.
I will now proceed to deal with the second issue of whether the statutory requirement of the issuance and service of pre-action was complied with before the commencement of the parties suit at the trial court. It is obvious from the arguments in the briefs of the parties to this appeal that it is common ground between them that the appellants herein did issue a pre-action notice and caused same to be served on the 2nd respondent. The respondents, contend that the issuance and service of the pre-action notice on the 2nd respondent, the Honourable Attorney General falls short of the requirements of the provisions of S.11(2)(a) and (b) of the State Proceedings Law cap 145 vol. vi2004 Revised Laws of Enugu State of Nigeria in that it was not served on the Secretary of Enugu State Government and but rather served on the Honourable Attorney General on 22nd March 2002, about two years after the commencement of the suit at the trial court. The appellants argue that the pre-action notice was served on the Attorney General well before the Suit was commenced at the trial court. The matters that have arisen for consideration from the arguments of both parties on the second issue are as follows:
(a) Was the pre-action notice issued and served before the action was commenced.
(b) Whether service of the said notice on the Honourable Attorney General satisfies the requirement of S. 11(2)(a) and (b) of the State Proceedings Law.
I will first consider the matter of when the pre-action notice was served. PW2, the bailiff who served the pre-action notice testified that he served the pre-action notice on the Honourable Attorney through his secretary at 3.30 pm on 22nd March 2000 and produced his dispatch book showing acknowledgment of receipt of the said notice at the said time and date. The dispatch book is Exhibit H in the record of this appeal. The record of this appeal shows that the writ of summons and accompanying statement of claim that commenced Suit No. E/445/2000 at the trial court was filed on 22nd August, 2000. The argument of Learned Counsel for the respondents that “on the 22nd day of March 2002, approximately two years after the commencement of the Suit the plaintiffs woke up from their slumber and issued a Pre-Action Notice on the State Attorney General in a matter they already commenced in court” is not supported by the record of this appeal. The submission is clearly not based on the record of this appeal and is therefore invalid. In an appeal, all arguments or submissions must be based on the records of appeal before the appellate court. Any arguments or allegation of event that is not supported by such record is not valid for consideration and cannot be countenanced.
Let me now turn to the question of whether the service of the Pre-action notice on the Honourable Attorney-General complies with the requirements of S.11(2)(a) and (b) of the State Proceedings Law. For ease of reference and understanding I will reproduce the exact wordings of the part of that provision relevant for our present purpose. It states that:
“No action shall be instituted –
(a) against the State; or
(b) against a public officer in respect of any act done in pursuance of execution or intended execution of, any written law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority until the expiration of a period of three months after notice in writing has been, in the case of the State delivered to the Secretary to the Government, and, in the case of the public officer, delivered to him… …….”
This law required pre-action notice in actions against the state or in action against public officers and differentiates between the two types of actions on who should be served the pre-action notice in each situation. By virtue of the clear words of this provision the Pre-action notice in an action against the State is to be served on the Secretary to the State Government whereas the pre-action notice in an action against a public officer is to be served on the public officer himself. The reason for this differential provision is obvious. A State is an institution that operates through its officials who are human persons, while a public official is a human person. It is therefore necessary at this juncture to find out if this particular case is an action against the State or an action against a public officer or both so as to determine if the service of the pre-action notice on the Honourable Attorney General complies with S.11(2)(a) and (b) of the State Proceedings Law to enable a valid commencement of this Suit at the trial court. It is not a matter that can be resolved by simply referring to the parties named as defendants or respondents in the action. This is so because of the phraseology of the provisions in question. A careful reading of the wordings of S.11(2)(a) and (b) show that it is the cause of action that determines whether it is an action against the State or a public officer. The cause of action will state whose act or neglect or default is the subject of the complain or that gave 1se to the cause of action. It is clear from the said provision that a pre-action notice is required because the action is in respect of any act done in pursuance or execution or intended execution of any written law, or any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority by the State or a public officer. That is why such a notice is not required in actions against a public officer in respect of his act, neglect or default not involving the execution or intended execution of any written law, duty or authority. In other words a pre-action notice is required not just because the action is against the State or a public officer but is required on account of the cause of action which is constituted by the “act done in pursuance of execution or intended execution of, any written law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority.”
So what is the cause of action in our present case. It is that the Enugu State Government (1st respondent) through its State Special Standing Committee an Antigovernment Activities contractually engaged the appellants to search, locate and recover the properties of the former Anambra State for a consideration, that the appellants after completing the performance of their part of the contract, the 1st respondent has refused to pay the appellants the agreed fees. It is the act, neglect or default of Enugu State Government that is the subject of this complain and gave rise to the cause of action. It is therefore an action against the State. It is not an action against a public officer.
The inclusion of the Honourable Attorney General as a 2nd defendant in this action did not change the nature of the action from being one against the State. The Attorney General is statutorily required by S.6 of the State Proceedings Law cap 146 vol. VI Revised Laws of Enugu State 2004 to be a party in all actions by or against the State or public officers. The Attorney General can be the defendant in actions against the State or a public officer. He is not a defendant in the Suit because of his or her official act, default, or neglect.
There is no doubt that where an action is brought against the State in the name of the Attorney General, the processes in the Suit can be served on the office of the Attorney General. So that is the usual practice even though Order 7 of the High Court (Civil Procedure) Rules cap 92 vol. VI 2004 Revised Laws of Enugu State which govern service of processes in civil cases before High Court makes no provision on how processes in Suits against the State shall be served. However I do not think that it will be right to assume that since the actions against the State can be brought against the Attorney General or that since the State is likely to be represented by the Attorney General in the intended Suit by virtue of S.66(2) of the High Court Law cap 92, then a notice of intention to bring an action against the State or a public officer can be served in the same manner processes in a pending Suit against the State or public officer is served. This is because this is a matter clearly outside the practice and procedure of the court in pending civil proceedings. It is a pre-action matter specially created by a statute in a language that shows clearly that it is not a mere matter of procedure of service of a notice. The provision creates a mandatory duty to deliver the notice to the Secretary of the State Government in actions against the State, and to the public officer himself in actions against a public officer. So unless the notice is delivered to the Secretary of the State Government in an action against the State, then the duty as prescribed in S.11(2)(a) and (b) is not discharged. It is trite law that where a statute prescribes a duty to be performed in a particular manner that duty can only be carried out in the manner prescribed by the State. The duty consists of delivery of the notice to the Secretary of the State Government in an intended action against the State. If the law intended that the notice be delivered to the Attorney General or any other official, it would have so stated.
It is an elementary rule of statutory interpretation and application that the express mention of one thing in a statutory provision exclude those not mentioned. I find it difficult to see how service of the pre-action notice on the Attorney General can satisfy the requirement in S.11(2)(a) and (b) of the State Proceedings Law that the pre-action notice in actions against the State be delivered to the Secretary to Government..
Learned Counsel for the appellant further submits that “by filling pleadings and contesting the case to the end, the requirement of pre-action notice being a procedural requirement, the 2nd respondent Enugu State Government is caught by the doctrine of waiver” and so would be held to have consented to the procedure adopted. Learned Counsel for the respondent replied that respondents did not waive their right to the pre-action notice and relied on the Supreme Court decision in EZE VS OKECHUKWU (2002) 103 LRCN 2245 at 2248 held 4:
The questions that arise here are –
(i) Can the requirement of a pre-action notice be waived?
(ii) Was it waived in this case?
There is no doubt that the delivery of a notice of intention to sue is a procedure for involving the jurisdiction of the court. It is a condition precedent to the commencement of an action. As a step to be taken before the action is commenced it is clearly procedural. But it is not a mere matter of procedure. It is a special kind of procedural requirement different from that for the hearing of a pending suit. Therefore it should not be treated like procedure in pending proceedings. As this court held in ETI-OSA LOCAL GOVERNMENT VS. JEGEDE (2007) LPELR 8464 (Lagos) following the decision of the Supreme Court in MOBIL PRODUCING (NIG) UNTLD VS. LEASEPA (2002) 18 NWLR (Pt. 798) 1 a pre-action notice is not to be equated with processes that are an integral part of the pending proceedings. It cannot be viewed merely a or simply as a procedural requirement because it creates a mandatory statutory duty of an intending plaintiff and a statutory right of the public body or official to be sued to such notice. The performance of the duty is mandatory in sense that the intending plaintiff cannot choose not to perform it. Failure to perform this duty before the action is commenced, renders it incompetent and prevents the court from exercising jurisdiction to entertain or determined the case. The provision creating this duty did not expressly state that the defendants are entitled to such notice. The right to such notice is implicit in the statutory imposition of the duty and therefore derives from it. In dealing with non-compliance with such provisions courts prefer to treat it as a right creating provision rather than a duty creating provision. This in my opinion is the reason for regarding it as a requirement that can be waived. However, some courts have held that the right cannot be waived on account of the legal consequences of the violation of such statutorily prescribed condition.
On the whole the preponderance of judicial opinion is in favour of the position that the right can be waived thereby validating the plaintiffs action. In MOBIL PRODUCING (NIG) UNLTD VS. LEASEPA (2002) 18 NWLR (PT. 798) 1 at 33 the Supreme Court followed its earlier decision on KATSINA LA VS. MAKUDAWA (1971) 7 NSCC 119 at 124 – 125 held that “failure to serve the mandatory pre-action notice is an irregularity in the exercise of jurisdiction which should not be confused with total lack of jurisdiction and further that where defendant on whom the mandatory pre-action notice ought to have been served failed to raise it in his pleadings he would be deemed on simple rules of pleading, to have waived whatever right he possesses in the subject matter.” In its later decision in NIGERCARE DEVELOPMENT CO. LTD VS. ADAMAWA STATE WATER BOARD & ORS (2008) 34.1 NSCQR 226 at took a totally different position on by holding that “In the first place, where an issue of competence or jurisdiction of court, is fundamental and crucial, the issue of waiver cannot be of any consequence. See the case of ONYEMA & ORS (1987) 3 NWLR (Pt. 60) 259 (1987) 7 SCNJ 176. Secondly, if a/the defendant has a legal right conferred on him/it by statute, it is again with respect, idle to submit as has been done in the appellants brief, that the defendant should waive same and proceed with the hearing of the case.”
The Supreme Court in FEED AND FOOD FARMS (NIG) LTD VS. NNPC (2009) 12 NWLR (Pt. 1155) 387 at 401 held per Tobi JSC treated the matter differently. It characterized the right to pre-action notice as a domestic or private right of a party. As such right, it held that the party having the right can choose to waive it. The court held that the right to be served with a pre-action notice does not fall within the category of rights which cannot be waived. This court in PORTHARCOURT REFINING COMPANY LTD VS. IMOUH OKORO (2010) LPELR 4861 (Portharcourt Division) preferred the approach and the decision of the Supreme Court in the Katsina LA and Mobil cases after considering those cases and the latter decision of that court in the Nigercare case. I cannot guess what position this court as then constituted would have taken if it had opportunity to consider the Feed and Food Farms case of 2009. I prefer the approach and the view of the court per Tobi JSC in Feed and Food Farms Ltd that the statutory right being the private or domestic right of the beneficiary of the duty imposed on the person seeking to sue, can be waived by the owner of such right.
Having thus resolved, it becomes necessary to find out if the right was waived in this case. The appellants alleged in paragraph 14 of their statement of claim that “plaintiffs also caused a notice of intention to sue to be given to the 1st defendant by their solicitor. Copies of the said letters are hereby pleaded.” In response thereto, the respondents stated in paragraph 8 of their statement of defence that “the 1st appellant testifying as PW1 said they served the first respondent notice of intention to sue and copy was tendered and admitted as exhibit E. The only witness who testified on behalf of the respondents during cross-examination denied that any such notice was served on him.
In their written addresses at the trial court the respondents as their first issue contended that a pre-action was not served on them as required by S.11(2) (a) and (b) of the State Proceeding Law. It is clear from the foregoing that the 1st respondent did not waive its statutory right to pre-action as required by S. 11(2)(a) and (b) of the State Proceeding Law.
It is for the above reasons that I uphold the decision of the trial court that a pre-action notice was not served on the 1st respondent as required by S.11(2)(a) and (b) of the State Proceedings Law. Clearly the action resulting in this appeal was commenced in violation of S.11(2)(a) and (b) of the State Proceedings Law which in mandatory terms prohibit the commencement of an action until after the expiration of following the delivery of a notice of intention to commence the action to be against the State to the Secretary to the State Government. The consequence of such non-compliance with such mandatory provisions is that the action filed is invalid or incompetent and affects the jurisdiction of this court to entertain same. It has been restated by a long line of judicial decisions that unless an action is initiated in accordance with law and upon fulfillment of any condition precedent to its commencement, the court will not have jurisdiction to entertain such a case.
Issue No 2 is resolve against the appellants in favour of the respondents.
I will now deal with the last issue of whether the appellants proved their entitlement to their claim in the lower court. Both sides agree in their pleadings and evidence that the State Standing Special Committee on Anti Government Activities wrote to the appellants contractually engaging them to search, locate and recover all the properties of the Central Investment Company Limited (in voluntary liquidation). The said exhibit A states in paragraphs 2 and 3 thus –
“2. You shall be paid ten percent (10%) of the value of any item located recovered and sold for the company (In Voluntary Liquidation).
3. Where the recovered is not sold, a qualified valuer shall be invited to determine the value of ten percent of the property, which shall promptly be paid to vou.” (under lining mine)
It is also agreed by both sides that the appellants wrote exhibit B accepting the offer by the Committee or its Chairman and that the appellants did carry out the search and recovering of some properties. Following these recoveries the appellants sent to the Chairman of the said Committee a list of the properties recovered (exhibit D). The Secretary of the Committee endorsed the letter containing the list (exhibit D) acknowledging receipt of exhibit D and the recovery of the items listed therein, but indicated at the foot of exhibit D that properties have not been sold. It is on account of these recoveries that the appellants requested to 1st respondent to pay them N3,420,350.00 as 10% of the total value of the properties recovered. The 1st respondent has not paid the appellant. The 1st appellant during his testimony was cross-examined by learned Counsel for the respondents on the basis of their claim for the above sum as follows:-
Question – How did you arrive in your valuation in exhibit D1 – D6?
Answer – I arrived at those valuations while working as a team with members of the Standing Special Committee appointed by the Military Government.
Question – Do you see the remarks made by the Secretary of the Standing Committee that the items recovered were not sold?
Answer – Yes but when the property is not sold, services of a qualified valuer will be employed to determine ten percent of the value of the property.
PW1 was re-examined by Learned Counsel for the appellants thus:-
Re-examination – Your duty is to recover, and you will be paid ten percent of value of property recovered whether sold or not sold.?
Answer – Yes.
The Secretary of the said Standing Committee who testified for the respondents as DW1 was cross-examined by Learned Counsel for the appellants thus:
Question – The endorsements at the foot of the exhibit D to D6 show that those items were recovered?
Answer – The endorsements show that the items were recovered but not sold.
Question – Did you take part as the compilation and computation of the items recovered?
Answer – No
Question – You certified the exhibit D?
Answer – | certified that I received the document. It is for an independent valuer to assess and value the items recovered.
In determining the issue of whether the appellants proved their entitlement to the amount claimed as 10% of the value of the properties recovered, the trial court held “that the plaintiff has failed to prove that they are entitled to the amount claimed. No valuer or Quantity Surveyor was employed to determine the worth of goods recovered, and 10% value of such goods. No Quantity Surveyor testified. It was not shown that any valuer or quantity Surveyor worked with the said Committee and proper appraisal was made of the worth of the goods recovered. The goods recovered were not sold, the amount of money realized for the sale could have given the court an idea of the worth of the goods. But the evidence is that most of the goods were not sold. How then is the court expected to give effect to the terms of the contract expressed in exhibit A. For this reason and for other reasons expressed by the court in this judgment, this court holds that the plaintiffs have not proved their case, and this action is consequently dismissed.” The argument of the appellants against this part of the judgment is simply
That:
(i) the certification of exhibits D – D6 by the Secretary of the Standing Committee is a confirmation that the amount stated against each item as the value in those exhibits were authenticated by the Committee.
(ii) it is not part of the defence of the respondents in their statement of defence that the appellants had as a duty to engage a quantity surveyor/valuer to value the recovered items and the absence of the opinion of such a valuer as to the value of items recovered is of no moment in view of numerous documentary evidence before trial court showing that the appellants proved their entitlement to the sum claimed. The respondents in their brief argue that paragraphs 2 and 3 of exhibit A are fundamental terms of the contract, that since the recovered properties had not been sold the appellants should have engaged the services of a qualified estate valuer to determine and value of the items recovered and that the appellants did not comply with paragraph 3 exhibit A..
I will start with the state of the pleadings on the issue of the value of the recovered items and the determination of their value for the purpose of paying the appellants 10% of such value. It is the appellants that have pointed out the need for the respondents to have pleaded the defence that the appellants had a duty to engage a valuer to determine the value of the items. I think that the need for such a defence did not arise as the appellants did not plead the value of the items recovered, how they arrived at such value, and that the respondents had a duty to engage a valuer to value the recovered items. lf these facts had been pleaded in the statement of claim then the need for such a defence would have arisen.
The appellants merely pleaded the existence of the contract. They did not plead the terms of the contract especially the terms breached. In an action arising out of a breach of contract, plaintiff must plead in his statement of claim the terms of the contract and how the breach occurred. Unless these facts are pleaded therein, the statement of claim will disclose no cause of action for breach of contract. Merely pleading the existence of the contract is not sufficient. The existence of the contract perse is not the cause of action, it is the breach of the term of the contract that constitutes the cause of action. Appellants did plead in their statement of claim that the Committee wrote to them engaging them to search and recover properties and that they accepted to do so and did perform the assignment. The terms upon which they were to perform their obligation was not stated. They did not even plead that they were to be paid for the search and recovery. Without such a background, the appellants stated in paragraphs 9 and 10 of their statement of claim that they forwarded the list of the recovered properties to the Chairman of the Committed and also forwarded their claim for professional fees of N3,420,350.00 being 10% of the value of the properties recovered.
There is no fact in the statement of claim to support the claim in paragraph 10 therein. It is not pleaded in the statement of claim that it was a term of the contract that the respondents had an obligation under the contract to pay them 10% of the value of the items recovered. It did not state the basis for the claim of 10%, the total value of the items and how it was arrived at. The statement of claim did not disclose a cause of action for breach of the contract. It merely stated the existence of the contract to search and recover, that they recovered and so should be paid 10% of the value of the items recovered. It is therefore not surprising that the respondents statement of defence and the evidence of both sides focused on the existence of the contract. Evidence as to the claim, the value of the item and how the value was determined were brought out during cross examination and re-examination of PW1 and cross-examination of DW1. Although the terms of the contract that determine these issues are not pleaded in the statement of claim, they are contained in exhibit A admitted in evidence by virtue of the facts pleaded in paragraphs 4 and 5 of the statement of claim. Exhibit A is reliable documentary evidence of the existence of the contract. Its contents concerning the terms of contract cannot be ignored.
Both sides agree that the recovered properties were not sold. Paragraph 3 of the exhibit provides for how the value of the recovered items should be determined if the items are not sold.
It did not state who should invite a qualified valuer to determine the value of the recovered items. It is my view that since the Committee engaged the appellants to only search and recover the property, their obligation under the contract ended with the recovery of the items. The recovery gives rise to the obligation of the Committee to pay for the services. It is for the Committee to do what is necessary to effect payment. This will involve determining the value if the items recovered so as to enable it perform its obligation to pay for the services. The Committee had the duty to engage a qualified valuer. From the pleadings and the evidence in this case, what happened was that the appellants after the recovery, sent lists of the recovered items (exhibit D – D6) to the Chairman of the Committee. The list also indicated an amount against each item representing its value. After submitting the said lists, the appellants requested the Committee to pay them 10% of the total amount stated in exhibit D – D6 as the total value of the items recovered. Clearly, the valuation of the recovered items by the appellants in exhibits D – D6 is in breach of paragraph 3 of exhibit A. The evidence of PW1 in cross-examination that he arrived at those valuations while working as a team with members of the Committee is of no moment for the following reasons. Firstly, the fact it seeks to establish is not pleaded and so goes to no issue and cannot be relied on. Secondly, it is inconsistent with the pleadings and evidence of the same witness in examination in chief that upon recovery they submitted a list of the properties located and recovered to the Committee, which list was certified by the secretary of the Committee and was forwarded to the Chairman of the Committee. Thirdly, working as a team with Committee members to determine the value of the items falls short of paragraph 3 of exhibit A. Fourthly, DW1 stated in evidence in examination in chief that no valuer was employed to his knowledge and that he was not aware of the compilations as it was not done with his knowledge. The argument of the appellants that the endorsement of the exhibits D – D6 by the Secretary of the Committee amounted to an authentication of the value amounts stated in the list as the value of the item cannot be correct in view of the evidence DW1 and his endorsement on the exhibits that the items were not sold. DW1 had stated in his evidence in examination in chief that exhibits D – D6 were not compiled with his knowledge. In cross-examination he reaffirmed that he did not take part in the compilation and computation of the lists and further stated that his endorsements at the foot of the exhibit show that the items in the list were recovered but not sold and that he certified the exhibits as acknowledgment of receipt of the documents. The appellants had written exhibit B to accept the offer as contained in exhibit A and proceeded to perform their side of the contract on the basis of exhibit A. They are therefore bound by the terms of exhibit A and cannot resile from it. It is trite law that parties to a contract are bound by the terms of that contract, the duty of the court is to give effect to such terms to protect the sanctity and the autonomy of contracts in the public interest. Their claim for services rendered can only be based on the value of the property as determined by a qualified valuer. Since they chose to compute the value, instead of allowing the Committee to do so, nothing stopped them from engaging a qualified valuer to value the recovered items. A valuation report of a qualified valuer accompanying the list of recovered items would have satisfied paragraph 3 of exhibit A.
For these reasons I uphold the decision of the trial court that the appellants did not prove their case and the dismissal of the case. Issue No. 3 is resolved against the appellants in favour of the respondents.
This appeal therefore fails and is accordingly dismissed. No order as to costs.
AYOBODE O. LOKULO-SODIPE J.C.A: I havpe had the privilege of reading the lead judgment prepared by my learned brother, ABUBAKAR JEGA ABDUL-KADIR, JCA. I am in complete agreement with his lordship’s reasoning and conclusions. I have nothing to add.
Accordingly, I agree that the appeal should be dismissed and I too, hereby dismiss it. I also abide by the order made in the lead judgment relating to costs.
ISAIAH OLUFEMI AKEJU, J.C.A: My learned brother, ABUBAKAR JEGA ABDUL-KADIR JCA gave me the privilege of reading before now the draft of his judgment just delivered. The issues in the appeal have been well considered and I agree that the appeal is devoid of merit. I therefore dismiss the appeal with no order as to costs.
Appearances
Mrs K. EyiucheFor Appellant
AND
Mr. J.O. EdehFor Respondent
