HUAWEI TECHNOLOGIES CO (NIG) LTD v. 21ST CENTURY TECHNOLOGIES LTD
(2022)LCN/16805(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, November 17, 2022
CA/L/1203/2017
Before Our Lordships:
Abubakar Sadiq Umar Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Between
HUAWEI TECHNOLOGIES COMPANY NIGERIA LIMITED APPELANT(S)
And
21ST CENTURY TECHNOLOGIES LIMITED RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN CIVIL CASES
The law is settled that in civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings on particular matters or issues generally will shift from the plaintiff to the defendant and vice versa so that if a party who has the initial burden to lead relevant evidence on a particular issue does so prima facie, he throws the burden of rebutting that evidence upon the other party. This is enshrined in the maxim ei qui affirmat non ei qui negatin cumbit probation – U.B.N. (Nig.) Ltd. vs. Ajagu (1990) 1 NWLR (Pt. 126) 328 at 341, Paras. F-G, Musa Abubakar vs. E. I. Chucks (2007) 18 NWLR (Pt.1066) 386 Buhari vs. I.N.E.C. (2008) 19 NWLR (Pt. 1120) 246 at 354-355, Paras. F-A. PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State delivered on 27th March, 2017, wherein the lower Court dismissed the claims of the Appellant/Plaintiff as contained in its writ of summons filed on 23rd May, 2014. By a writ of summons and statement of claim filed on 23rd May, 2014, the Appellant/Plaintiff filed the suit at the Court below seeking for the following reliefs:
The sum of Two Hundred and Forty-two Thousand, Two Hundred and Eighteen United States Dollars and Fifty Cents (USD242,218.50) owed the Claimant by the Defendant for breach of contract.
i. Interest on the aforesaid sum of Two Hundred and Forty-two Thousand, Two Hundred and Eighteen United States Dollars and Fifty Cents (USD242,218.50) at the rate of twenty-one per cent (21%) per annum from the 20th day of August, 2010 when the total sum became due till judgment and thereafter at the rate of fifteen per cent (15%) per annum until liquidation of the sum.
ii. Damages in the sum of N10,000,000.00 for breach of contract.
iii. Cost of action.
The Respondent entered a conditional appearance and filed its statement of defence and counter-claim, which was deemed as properly filed on 18th November, 2014 and sought for the following reliefs:
i. A DECLARATION that the Claimant/Defendant to counter-claim breached the understanding and the Agreement for the importation, installation, commission and maintenance of the Dense Wavelength Division Multiplexing (DWDM) equipment and the ISP equipment.
ii. AN ORDER for the payment of the sum of $1,857,264.35 (One Million, Eight Hundred and Fifty-Seven Thousand Two Hundred and Sixty Four Dollars and Thirty-Five Cents) only against the Claimant/Defendant to counter-claim being the total sum which the Defendant/Counter-claimant initially expended on the procurement, carriage and storage of said equipment which have since been found to be totally incompatible with its existing system/equipment and adding no value to its enterprise/services whatsoever as stated in the breakdown below:
i. Payment for the procurement of the equipment DWDM: $979,107.70 (Nine Hundred and Seventy-Nine Thousand, One Hundred and Seven Dollars and Seventy Cents) only.
ii. Payment for the procurement of the ISP: $1,400,000 (One Hundred and Forty Thousand Dollars).
iii. Cost of duties and clearing of the 44 DWDM returned and received by the Claimant; $737,156.65 (Seven Hundred and Thirty-Seven Thousand, One Hundred and Fifty-Six Dollars, Sixty-Five Cents) only.
iii. AN ORDER that the Defendant to Counter-claim immediately remove the 2.5G DWDM equipment and the ISP equipment from the premises of the Defendant/Counterclaimant.
The cost of the counter-claim and damages for breach of contract. The Appellant filed its reply to the Respondent’s statement of defence and defence to counter-claim. In the judgment delivered on 27th March, 2017, the lower Court dismissed both the Appellant’s reliefs and the Respondent’s counter-claim.
The notice of appeal was filed on 19/06/2017, the Appellant’s Brief was filed on 2/02/2018 and deemed on 26/11/2018, the Respondent’s Brief was filed on 2/12/2020 and deemed on 26/09/2022 and the Reply Brief was filed on 8/03/2021 and deemed on 26/09/2022. In the Appellant’s Brief, the following issues are formulated for determination:
“i. Was the learned trial Judge right in holding that the Appellant did not satisfactorily discharge the burden of proving its claims before the Court when in the face of the evidence before the Court it is clear that the contract for the installation and commissioning of the 22 units of Optix Engineering equipment was performed by the Claimant without a corresponding payment for the Claimant’s service by the Respondent as agreed under the contract?
Grounds 2, 3 and 4 of the Notice of Appeal.
ii. Was the learned trial Judge right in holding that the Appellant could not rely on Exhibit C14, which was an agreement between the Respondent and Huawei International Pte Ltd of Singapore, in proof of its case and therefore concluding that the Appellant had not satisfactorily discharged the burden on it and dismissing the Appellant’s case in its entirety for that reason? Ground 1 of the Notice of Appeal.
On issue one (1), it was submitted that the Appellant was able to establish before the trial Court that the Optix Engineering Service mentioned in clause 4 (i) of Exhibit C1 had to do with the installation and commissioning of the 22 units of equipment, and nothing more, and was therefore entitled to the sum of USD 242,218.50 claimed in the suit, which was the agreed cost of the Optix Engineering Service. Secondly that the Appellant sufficiently established that the issuance of final acceptance certificates (FAC) was not a condition precedent to the Appellant’s entitlement to the payment of the sum of USD 242,218.50 by the Respondent, being the agreed cost of the Optix Engineering Service.
That the fact that the Optix Engineering Service was the installation and commissioning of the equipment was admitted by the Respondent at Paragraph 16 of its statement of defence and counter-claim as contained in page 110 of the Record of Appeal. That D.W 1 (Respondent’s own witness) during his cross-examination admitted that the 22 units of equipment were correctly installed by the Appellant while the remaining 44 units were returned by the Respondent. That facts admitted need no further proof – Ndukwe vs. LPDC & Ors (2007) 5 NWLR (Pt. 1026) 1 at 56 Para. G. That apart from the admission made by the Respondent confirming that the agreed Optix Engineering Service to be rendered by the Appellant was the installation and commissioning of the 22 units of equipment as contained in Clause 4(iii) of Exhibit C1, it provides that “Huawei will give maintenance service of one year to 21st Century after equipments have been installed for free”.
That at Page 427 of the Record of Appeal the trial Court, relying on all the clauses of Exhibit C1, had found and agreed with the Appellant when the Court held thus:
“Taking all these clauses together, the Court must agree with submissions of the learned Counsel for the Claimant at paragraphs 5.27-5.28 that it is the one year maintenance service that is to be provided for free and not the installation of the equipment contrary to the contention of Defendant’s Counsel.”
That reliance solely on what C.W.1 said during his cross-examination to vary the terms of Exhibit C1 and conclude that final acceptance certificate (FAC) was a condition precedent to the Appellant’s entitlement to the agreed cost of the Optix Engineering Service it rendered to the Respondent was erroneous. That the Appellant wrote to the Respondent through its Solicitors on two (2) occasions demanding payment for the installation services rendered as provided in Exhibit C1, but the Respondent never responded to the letters – Exhibits C10 and 11, contained at Pages 39-42 of the Record of Appeal. According to Counsel, the law is trite that where a creditor writes a demand letter which the supposed debtor fails to react to, the silence of the latter amounts to admission by conduct – In-Time Connection Limited vs. Janet Ichie (2009) LPELR-8772 (CA).
That there is nowhere the issuance of final acceptance certificate was mentioned in the Agreement dated 1st June, 2010 titled, “Addendum to Service Supply Agreement” (Exhibit C1), which is the basis of the Appellant’s claims against the Respondent, neither did any of the parties make reference to it in their pleadings. That in the totality of the Respondent’s pleadings, it was never stated that the Respondent was dissatisfied with the installation done by the Appellant. That the Respondent only, at Paragraphs 18, 19 and 20 of its statement of defence (Page 110 of the Record of Appeal), stated that it was dissatisfied with the compatibility of the equipment supplied by Huawei International Ltd with its own equipment, which had nothing to do with the Appellant and which the trial Court rightly held in its judgment (Page 424 of the Record of Appeal), was not the same as the Appellant herein and so could not be held liable for.
On issue two (2), it was submitted that the document which the trial Court held that the Appellant could not rely on in discharging the burden of proof placed on it and in therefore holding that the Appellant’s claim must fail is Exhibit C14, which was an agreement between the Respondent and Huawei International Ltd. of Singapore. That it is also clear from the Appellant’s pleadings before the trial Court that the only reason the said document was mentioned and tendered as an exhibit was to show that the Respondent returned 44 units out of the 66 units it ordered from Huawei International Ltd of Singapore and retained 22 units, not because the 44 units returned were incompatible with its equipment or that the Respondent was dissatisfied with the installation of the equipment by the Appellant, but because the Respondent could not afford to pay for the returned equipment – Paragraphs 21, 22, 23 and 24 of the claimant’s reply to statement of defence (Page 227 of the Record of Appeal).
He urged the Court to resolve the two issues in favour of the Appellant and against the Respondent. In the Respondent’s brief, a sole issue is formulated for determination thus:
“Whether the learned trial judge was not right in holding that the Appellant failed to discharge the burden of proof placed on it and thereby dismissed the Appellant’s claims before the lower Court.
(Distilled from Grounds 1, 2, 3 & 4)
It was submitted that contrary to the Appellant’s averments that the contract was successfully performed upon the installation and commissioning of the equipment, CW1 admitted under cross-examination that the contract entailed more than the installation and commissioning of the equipment. That successful and complete performance by the Appellant of its obligations under the contract was conditioned on the issuance of Final Acceptance Certificates (FACs). That when CW1 was asked under cross-examination whether it was his evidence that upon the issuance of the PAC, the Appellant had performed its service, CW1, the sole witness of the Appellant as Claimant expressly responded as follows:
“We issue this certificate of preliminary acceptance for a trial period of three months, if there is any complain from the customer, but if there is no complain you go further and issue FAC which is the final certificate.”
That when asked whether any final acceptance certificate (FAC) was issued by the Respondent, CW1 answered in the negative and that CW1 was further asked the effect of the FAC by Respondent’s Counsel under cross-examination and he explained as follows in reply:
“The effect (of the FAC) is for the customer to be fully assured that they are ready to pay the full payment of the service being rendered by the vendor.”
That the claim of the Appellant as Claimant before the lower Court was mainly for Two Hundred and Forty-Two Thousand, Two Hundred and Eighteen United States Dollars and Fifty Cents (USD242,218.50) owed the Claimant by the Defendant for breach of contract and interest thereon. That this claim is a specie of special damages which must be specifically pleaded and proved in Court – Nicon Hotels vs. N.D.C. Ltd. 2007 13 NWLR (Pt.1051) 269.
That it is instructive to note that the words “installation and commissioning” was not mentioned anywhere in the contractual document of the parties being Exhibit C1. The Claimant by this suit claims for payment for “installation and commissioning” services which is not stated in the Addendum Agreement. That the Claimant by its pleadings and evidence-in-chief is now attempting to use other form of evidence to contradict a written document of a contract. According to Counsel, it is trite that a party cannot be allowed the use of any other form of evidence be it oral or affidavit to contradict written document of a contract reduced into writing – Dauda vs. L.B.I. Co. Ltd NWLR (Pt.1241) 427. That had the Claimant produced the main agreement dated 22nd July, 2008 which was referred to in the addendum and partly amended, the Optix Engineering Service may have been defined therein. This, Counsel submitted is the gap created by the Claimant in its own case which cannot be filled by the Court – Section 167(d) of the Evidence Act 2011. That in view of Paragraph 16 of the statement of defence, the Respondent placed the preliminary acceptance certificate tendered by the Appellant as Claimant and admitted as Exhibits C2-C9 in issue and that the content of the said exhibits which is documentary speaks for itself.
That the trial judge was therefore right when he held that the non-issuance of the FAC was fatal to the claim of the Appellant before the lower Court for payment. According to Counsel, it cannot be contended that the issuance of final acceptance certificate (FAC) was not pleaded because Paragraph 16 of the statement of defence combined with the evidence of Appellant sole witness CW1, by his admission clearly shows that the issuance of the preliminary acceptance certificate (PAC) did not amount to a conclusive and satisfactory performance by the Appellant of its obligations because the equipment was to be put into trial run period of 3 months. And that the pleadings and evidence clearly imply that a subsequent and final act was required to be performed to completely discharge the Appellant from its obligations and only then crystallized the entitlement of the Appellant to payment under the contract.
On the Appellant’s submissions in Paragraphs 5.10 and 5.22 of its Brief of Argument that the incompatibility of the equipment with the Respondent’s existing equipment and systems notwithstanding, the Appellant was entitled to payment because the Appellant’s duty was the installation and commissioning of the equipment and not the supply of same, the Respondent argued that the Appellant overlooks the fact that the Respondent entered into the contract on the strength of the Appellant’s representations and assurances. That the Respondent averred on Paragraph 8 of the statement of defence on Page 109 of the Record of Appeal that the Appellant had a proper understanding of the Respondent’s existing equipment and system and even conducted an analysis and informed the Respondent that it had the requisite equipment to meet the Respondent’s needs.
Finally, Counsel submitted that Ground One of the Appellant’s Notice of Appeal is incompetent and the Appellant’s issue two which is formulated therefrom and the arguments canvassed thereon are equally incompetent and should be struck out. According to Counsel, the ground does not arise from the ratio decidendi of the judgment of the lower Court as nowhere in the judgment did the trial Judge hold that the Appellant failed to discharge the burden of proof placed on it because it could not rely on Exhibit C14. He urged the Court to resolve the sole issue in favour of the Respondent and against the Appellant dismiss the appeal and affirm the judgment of the lower Court.
In the reply brief it was submitted that it is only the express terms of the contract entered into between parties that can make the issuance of certificates, whether preliminary or final certificates, a condition precedent to payment of the contract sum – Halsbury’s Laws of England, Fourth Edition, Page 109, Para. 126 at Page 111, Para. 129. That where parties have not in their contract made the issuance of a final certificate a condition precedent to payment of the contract sum, none of the parties can impute such a term into the contract.
That in the instant appeal, there is no where it has been shown that parties agreed that the issuance of a final certificate would be a condition precedent to the payment of the contract sum by the Respondent to the Appellant. According to Counsel, even though in the course of cross-examination of C.W. 1 he explained the stage at which the preliminary acceptance certificate (PAC) and the final acceptance certificate (FAC) are generally issued, he never admitted or alluded to the fact that the issuance of the FAC was an agreed condition precedent to payment of the contract sum to the Appellant – Page 305 of the Record of Appeal. That the Appellant completed its work by rendering Optix Engineering Service of installing and commissioning the Respondent’s equipment and the Respondent did not complain of the service rendered by the Appellant and the Appellant is therefore entitled to payment for service rendered under the contract.
That the Appellant’s claim before the trial Court against the Respondent is simply based on the Respondent’s breach of the provision of clause 4(i) and (ii) of the addendum to supply agreement dated 1st June, 2010 (Exhibit C1), which is a binding agreement executed between the Appellant and the Respondent. That it is trite law that where a party executed several agreements but its complaint or claim is based on the breach of only one of the several agreements, such a party is at liberty to tender only the agreement which it complained of its breach and not to dump all the several agreements in the Court, and if the other party’s defence to the claim is based on any other agreement between it and the claimant, that other party is also at liberty to raise such in its defence and tender the other agreement in Court -A.N.P.P. vs. I.N.E.C. (2010) 13 NWLR (Pt. 1212) 549 at 620-621, Paras. H-B.
RESOLUTION OF THE ISSUES IN THE APPEAL
This appeal will be determined on the twin issues formulated by the Appellant. Thus:
i) Whether the learned trial Judge was right in holding that the Appellant did not satisfactorily discharge the burden of proving its claims before the Court
ii) Whether the learned trial Judge was right in holding that the Appellant could not rely on Exhibit C14 in proof of its case.
The law is settled that in civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings on particular matters or issues generally will shift from the plaintiff to the defendant and vice versa so that if a party who has the initial burden to lead relevant evidence on a particular issue does so prima facie, he throws the burden of rebutting that evidence upon the other party. This is enshrined in the maxim ei qui affirmat non ei qui negatin cumbit probation – U.B.N. (Nig.) Ltd. vs. Ajagu (1990) 1 NWLR (Pt. 126) 328 at 341, Paras. F-G, Musa Abubakar vs. E. I. Chucks (2007) 18 NWLR (Pt.1066) 386 Buhari vs. I.N.E.C. (2008) 19 NWLR (Pt. 1120) 246 at 354-355, Paras. F-A.
The agreement that the Appellant relied on in bringing its claims before the lower Court, which subsequently led to this appeal is contained in the agreement dated 1st June, 2010 titled, “Addendum to Service Supply Agreement” (Exhibit C1). See Page 29 of the record of Appeal. Clause 5 of Exhibit C1 made it clear that the provisions of Exhibit C1 supersedes the original contract and the Appellant’s claim was based solely on the breach of Exhibit C1 by the Respondent. For clarity purposes, Exhibit C1 is hereby reproduced thus:-
“ADDENDUM TO SERVICE SUPPLY AGREEMENT (00056608071620) FOR OPTIX OSN 6800 BETWEEN 21ST CENTURY TECHNOLOGIES LIMITED AND HUAWEI TECHNOLOGIES CO. NIG, LIMITED 22ND JULY, 2008
1. Whereas the parties hereof have entered into an agreement dated 22nd July, 2008 for supply of Optix OSN 6800.
2. Whereas by the parties hereof have agreed to amend the scope of supply for the Optix OSN 6800, the price and the payment terms as contained in the agreement.
3. Pursuant to the above, the parties hereof wish to amend the provisions of the agreement by this Addendum.
It is hereby agreed as follows;
4. The agreement should be amended to as follows:
(i) Specification scope and pricing:
S/N0 Item Quantity Total Price
USD Quantity Total Price
1. Training 1 33,570.00 1 33,570.00
2. OptiX Engineering Service 66 410,891.15 32 242,218.50
3. Assistant Service 2 500,000.00 0 0.00
Onshore Price 944,461.15 275,788.50
ii. Payment Terms
1. The sum of USD 150,000.00 should be paid to Huawei by 21st CENTURY TECHNOLOGIES LIMITED before the date 30th June, 2010.
2. The sum of USD 70,000.00 should be paid to Huawei by 21st CENTURY TECHNOLOGIES LIMITED before the date 31st July, 2010.
3. The sum of USD 55,788.50 should be paid to Huawei by 21st CENTURY TECHNOLOGIES LIMITED before the date 31st August, 2010.
(ii) Huawei will give maintenance service of one year to 21st century after equipments have being installed for free.
5 That other terms and conditions as specified in the agreement not specifically mentioned herein shall remain valid and subsisting.
DATED THIS DAY OF 1ST JUNE, 2010
IN WITNESS WHEREOF the parties hereto have caused this Addendum to be executed the day and year first above written.
SIGNED for and behalf of the within above named
SIGNED for and behalf of the within named
21st CENTURY TECHNOLOGIES HUAWEI TECHNOLOGIES CO.NIG.LIMITED
Signature…….. Signature………
Name………….. Name…………….
Designation……… Designation……..
In the presence of In the presence of
Name…………………… Name……………………..
Address……… Address……
Signature………….. Signature…………..”
It is worthy of note that the Appellant’s claim is in respect of the 22 units of DWDM equipment it installed for the Respondent pursuant to Exhibit C1. Although the initial quantity of equipment ordered by the Respondent and which was supplied by Huawei International Pte Ltd were 66 units, but the Respondent was able to pay only for 22 units, and due to the Respondent’s default in paying for the remaining 44 units of the equipment, which led to the Respondent being compelled to return the remaining 44 units to Huawei International Pte. Ltd. at the Respondent’s own expense. The reason for the return of the 44 units of DWDM equipment is well captured in the Amendment to Contract No. 0005660807160E between the Respondent and Huawei International Pte Ltd (Exhibit C14) – Pages 255 -259 of the Record of Appeal.
By Clause 4 of Exhibit C1, it was mutually agreed by the parties that the cost of the Optix Engineering Service was to be provided by the Appellant to the Respondent shall be in the sum of Two Hundred and Forty-Two Thousand, Two Hundred and Eighteen United States Dollars and Fifty Cents (USD242,218.50) only. The Appellant successfully rendered the Optix Engineering Services to the Respondent by installing and commissioning the Optix Engineering Equipment purchased by the Respondent in accordance with the Agreement. The equipment also went through the three tests for the certification to wit- Fast Ethernet (FE) Test; Giga Ethernet (GE) test; and Synchronous Digital Hierarchy (SDH) and both parties jointly signed several Preliminary acceptance certificates at the end of every installation and commissioning of the equipment at the Respondent’s various sites situated at the following locations: Bookshop, Lagos Island with Site Identification Number LAG 0010; Apapa with Site Identification Number LAG 0006; Ikeja 1 with Site Number 0005; Ikeja 2 with Site Identification Number LAG 0009; Ikeja 3 with Site Identification Number LAG 0001; Muri with Site Identification Number LAG 0002 and Lekki with Site Identification Number LAG 0004. The Optix Engineering Services provided by the Appellant were adjudged satisfactory and accepted by the Respondent without any complaint whatsoever. The preliminary acceptance certificates (PAC), marked as Exhibits C2-C9 can be found in Pages 151-158 of the Record of Appeal. There is nowhere where it was mentioned in Exhibit C1 and Exhibits C2-C9 that a final acceptance certificate (FAC) must be issued by the Respondent to the Appellant after 3 months of putting the equipment into trial run stage. Furthermore, a close examination of the Respondent’s statement of defence and counter-claim together with the evidence of CW1 and DW1 clearly show that there was no agreement between the parties as to the issuance of FAC. Besides, there was no evidence of complaint of equipment malfunction by the Respondent concerning the installation by the Appellant. Rather, at Clause 4 (ii) of Exhibit C1, both parties expressly agreed and stated specific sums of money to be paid by the Respondent to the Appellant on specific dates, without attaching any condition to such agreed payments. The said clause 4 (ii) of Exhibit C1 is reproduced herein:
“(ii) Payment Terms
1. The sum of USD150,000.00 should be paid to Huawei by 21st Century Technologies Limited before the date 30th June, 2010.
2. The sum of USD70,000.00 should be paid to Huawei by 21st Century Technologies Limited before the date 31st July, 2010.
3. The sum of USD55,788.50 should be paid to Huawei by 21st Century Technologies Limited before the date 31st August, 2010.”
The record of appeal and the evidence led before the lower Court shows that after satisfactorily installing the equipment in line with the agreement as contained in Exhibit C1, the Appellant made several demands for the payment of the sum of Two Hundred and Forty-Two Thousand, Two Hundred and Eighteen United States Dollars and Fifty Cents (USD242,218.50), being the cost of installation as agreed in Exhibit C1, but the Respondent neglected, refused and failed to make the payment as stipulated in Clause 4 of Exhibit C1. The letters of demand written by the Appellant’s Solicitors on behalf of the Appellant (Exhibit C10 &C11) can be seen at Pages 62-65 of the Record of Appeal. At Page 427 of the Record of Appeal the trial Court, relying on all the Clauses of Exhibit C1, had found and agreed with the Appellant when the Court held thus:
“Taking all these clauses together, the Court must agree with submissions of the learned Counsel for the Claimant at paragraphs 5.27-5.28 that it is the one year maintenance service that is to be provided for free and not the installation of the equipment contrary to the contention of Defendant’s Counsel.”
It is therefore surprising that the despite the evidence led by the Appellant as to what Optix Engineering Service entailed, which the Respondent did not contradict but admitted expressly, and coupled with the holding in respect thereof by the learned trial Judge as reproduced above, the learned trial Judge still proceeded to hold at Page 427 of the record of Appeal that:
“On the other side, contrary to the contention of the learned Counsel to the Claimant and as rightly submitted by the learned Counsel for the defendant, this Court cannot conclude that this Addendum – Exhibit C1 is merely limited to the installation of the equipment and not the supply without the original contract. Indeed, there is nothing on this Exhibit that talks of installation and commissioning as claimed by the Claimant.”
The Appellant’s claim is very simple and limited to payment for the installation and commissioning of the equipment (Optix Engineering Service) which the Respondent admitted at Paragraphs 15 and 16 of its statement of defence and in the testimony of its witness, D.W.1 -Odutola vs. Papersack (Nigeria) Ltd (2006) 18 NWLR (Pt. 1012) 470, Sona Breweries Plc vs. Peters (2005) 1 NWLR (Pt. 908) 478. Issue one is therefore resolved in favour of the Appellant and against the Respondent.
On issue two (2), this Court observed that the document which the trial Court held that the Appellant could not rely on in discharging the burden of proof placed on it and in therefore holding that the Appellant’s claim must fail is Exhibit C14, which was an agreement between the Respondent and Huawei International Pte Ltd of Singapore. It was not at any time in contention that the Appellant did not rely on or base its claim on the 44 units of equipment that the Respondent returned to Huawei International Pte Ltd of Singapore, but on the 22 units of DWDM equipment retained by the Respondent and installed by the Appellant pursuant to (Exhibit C1) executed between the Appellant and the Respondent.
This fact was stated in the pleadings of both the Appellant and the Respondent – Paragraphs 15 and 16 of the Respondent’s statement of defence (Pages 109 and 110 of the Record of Appeal) and Paragraph 27 of the Appellant’s Reply to statement of defence (See Page 228 of the Record of Appeal). At Paragraph 16 of its statement of defence dated 20th March, 2015, the Respondent admitted as follows:
“The Defendant admits paragraph 5 of the statement of claim to the extent that 22 units of the equipment were installed and commissioned and that Defendant issued Preliminary Acceptance Certificates but denies that the services were conclusively adjudged satisfactory and accepted because the equipment was subsequently going to be put into a trial run stage for 3 months.”
Exhibit C 14 was not the document on which the Appellant’s claims against the Respondent at the trial Court was based, but Exhibit C 1. Exhibit C 14 was tendered, not for the Appellant to enforce the terms of the contract between the Respondent and Huawei International Pte Ltd, but merely to demonstrate that the reason why some units of the equipment supplied to the Respondent by Huawei International Pte Ltd were returned was because of the inability of the Respondent to meet up with the payment for the equipment and not that the equipment were incompatible with the Respondent’s facility as claimed by the Respondent or that the Appellant did not install the equipment correctly. The Appellant and the Respondent joined issues with regard to the incompatibility or otherwise of the equipment supplied by Huawei International Pte Ltd to the Respondent and the reason for the return of the equipment, which makes Exhibit C14 very vital and relevant to the case. By Section 258 of the Evidence Act, 2011, a fact in issue includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows. In the instant case, the allegation of Respondent in its defence that the equipment supplied to it were not compatible with its system hence, it was dissatisfied with the installation of the equipment by the Appellant and the fact that 44 units out of the 66 units of the equipment were returned while the remaining 22 units were installed by the Appellant made the consideration of Exhibit C14 very paramount and germane in order to establish that the assertions of the Respondent that the equipment installed were incompatible and that the Respondent was dissatisfied with the equipment were mere after thought – Osafile vs. Odi (1994) 2 NWLR (Pt. 325) 125, Adimora vs. Ajufo (1988) 3 NWLR (Pt. 80) 1. In Agwunedu & Ors vs. Onwumere (1994) 1 NWLR (Pt.321) 375 at 386-387, Paras H-F the Supreme Court, per Mohammed, JSC, held that:
“It is crystal clear from the wordings of Exhibit C that it is evidence of sale of piece of a land and from the proceedings the document had been tendered in evidence simply to establish a fact which the parties have pleaded.”
It therefore follows that the refusal of the trial Court to consider Exhibit C14, which is very germane in resolving the issue as to whether it was the Appellant that supplied the equipment to the Respondent and whether the Respondent refused to make payment for the installation and commissioning of the 22 units of equipment by the Appellant because the Respondent was not satisfied with the compatibility of the equipment is erroneous. Accordingly, in view of the fact that Exhibit C14 was not the basis of the Appellant’s claims against the Respondent, but Exhibit C1, the trial Court was also in error in holding that the Appellant’s claims against the Respondent must fail because the claims were based on Exhibit C14. The second issue is therefore resolved in favour of the Appellant and against the Respondent.
Having resolved the two issues for determination in favour of the Appellant and against the Respondent, the destiny of this appeal is crystal clear. It is imbued with merit and is therefore allowed. The judgment of the lower Court in Suit Number LD/ADR/305/2014 delivered on 27th March, 2017 is hereby set aside. The claims of the Appellant as per the writ of summons and the statement of claim filed on 23/05/2017 except the award of damages in the sum of N10,000,000.00 are hereby granted. N3,000,000.00 is hereby granted as damages. No cost is awarded. Parties to bear their respective costs.
ABUBAKAR SADIQ UMAR, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, ABDULLAHI MAHUUD BAYERO, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
I have nothing useful to add to a well considered judgment which has resolved all the issues submitted for determination of this appeal. I adopt the reasoning and conclusion reached by my learned brother, ABDULLAH MAHMUD BAYERO, JCA in allowing this appeal as well.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: The draft of the leading judgment prepared by my learned brother, ABDULLAHI MAHMUD BAYERO, JCA, just delivered, was made available to me before now. Upon perusal, I found that my learned brother has dutifully treated the issues in the appeal meticulously and I am in full agreement with his reasoning end the conclusion reached therein, that the appeal is meritorious.
The lower Court having found and also agreed with the Appellant’s counsel that it is only the one-year maintenance service that is to be provided by the Appellant for free, not the installation of the equipment, it was wrong for it to have dismissed the Appellant’s claim for the installation of the equipment. It is for this reason and the more comprehensive reasons in the leading judgment that I too allow the appeal in the terms contained in the leading judgment. I abide by the consequential order as to cost.
Appearances:
Wahab Danco, with him, Ajibola Lawal-Akpo. For Appellant(s)
Aderemi Adeyinka, with him, A. Abdulazeez, and Bassey Ofem. For Respondent(s)
