HYUNDAI HEAVY INDUSTRIES CO. (NIG) LTD v. ASECHEMIE & ORS
(2020)LCN/14293(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, June 11, 2020
CA/PH/526/2017
Before Our Lordships:
Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Between
HYUNDAI HEAVY INDUSTRIES CO. NIG. LTD. APPELANT(S)
And
1. DR. DOUGLAS ASECHEMIE 2. MCDONALD INTERNATIONAL ENGINEERING LTD 3. SUFFOLK PET. SERVICES LTD. RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
It ought to be reiterated that the principle of fair hearing is not merely technical but rather a rule of substance that requires every Court of law to uphold and strictly apply in the exercise of the judicial powers thereof under Section 6 (6) (1) – (5) and 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See BAMAIYI VS. THE STATE (2001) 2 NWLR (Pt. 698) 438; KOTOYE VS. CBN (1989) 1 NWLR (Pt. 98) 419; ATANO VS. AG BENDEL STATE (1988) 2 NWLR (Pt.75) 201. PER SAULAWA, J.C.A.
WHETHER OR NOT THE COURT HAS THE DUTY TO BALANCE THE NEED NOT TO DELAY JUSTICE
Yet, the Court has an onerous duty to balance the need not to delay justice with a far more fundamental requisite in the administration of justice – non denial of justice. I think it was in the of CEEKAY TRADER LTD VS. GENERAL MOTORS COY LTD, that the Apex Court cherishingly postulated the immutable doctrine, thus:
Delay of justice is bad, but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice. It is for this reason that when a case is not fought and heard on merits, the order to be made must be one that does not shut out a party permanently from obtaining justice. See (1992) LPELR – 834 (SC) per Olatawura, JSC (of blessed memory) @ 47 paragraphs B-E
Per Saulawa, JCA @ 72-73 paragraphs E-C. PER SAULAWA, J.C.A.
THE BURDEN OF PROOF IN CIVIL CASES
The position of the law with regard to burden of proof in civil cases, is not at large. See Sections 131, 132, 133 and 134 of the Evidence Act (supra).
Most particularly, the provisions of Section 133(1) are to the unequivocal effect that in civil cases the burden of first proving the existence or non-existence of a particular fact predicates upon the party against whom judgment would (ultimately) be given if no evidence were adduced (produced) by either side, regard of course being had to presumption that may arise on the pleadings. However, it is equally provided in subsection (2) of Section 133 of the Evidence Act (supra) that –
(2) If the party referred to in subsection (1) of this section adduced evidence which ought reasonably to satisfy a jury (Court) that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successfully, until all the issues in the pleadings have been dealt with.
Under Section 134 of the Evidence Act (supra), the burden of proof in all civil cases shall invariably be discharged upon the balance of probabilities.
Thus, when the foregoing salient provisions of Sections 131, 132, 133 and 134 of the Evidence Act are married to the 1st Respondent’s pleading, there is no gainsaying that the 1st Respondent has the onerous burden under the law to prove the facts pleaded in the Statement of Claim thereof on the preponderance of evidence or balance of probabilities. See HASKE VS. MAGAJI (2009) All FWLR (Pt.461) 887; BUHARI VS. INEC (2008) NWLR (Pt.1120) 246 at 369-370; UBN LTD VS. OZIGI (1994) 3 NWLR (Pt.333). In the case of ADEGOKE vs. ADIBI, the Supreme Court had had a cause to aptly reiterate the fundamental doctrines to the following effect:
In civil case, while the general burden of proof in the sense of establishing his case lies on the Plaintiff, such a burden is not as static as in criminal cases. Not only will there be instances in which on the state of the pleadings the burden of proof lies on the defendant but also, as the case progresses, it may become the duty of the defendant to call evidence in proof or rebuttal of some particular point which may arise in the case.
See (1992) 5 NWLR (Pt. 242) 410; (1992) 6 SCNJ 136; (1992) LPELR-95 (SC) per Nnaemeka-Agu, JSC @ 19-20 paragraphs G-A. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is against the judgment of the Rivers State High Court, holden at Port Harcourt, delivered on August 31, 2017 in suit No. PHC/1376/2005. By the judgment in question, the Court below Coram S.H. Aprioku, J. awarded the sum of N108,676,881.00 (One Hundred and Eight Million, Six Hundred and Seventy Six Thousand, Eight Hundred and Eighty One Naira) only in favour of the 1st Respondent (claimant) against the Appellant, 2nd and 3rd Respondents, jointly and severally.
Not unnaturally, the Appellant (1st Defendant) was utterly dissatisfied with the said judgment. The original notice of appeal was filed in the Court below on August 1, 2017. It’s predicated upon a total of 11 grounds.
On March 18, 2020, when the appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting their respective briefs of argument, thereby resulting in reserving the judgment.
Most particularly, the Appellant’s brief, settled by Tonye Krukubo Esq. on 14/05/18, spans a total of 35 pages. A couple of issues have been proposed at page 8
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for resolution:
(i) Whether the trial Court was right when it held that its continued hearing of the suit leading to this appeal was proper owing to the failure of the Appellant to file an application for stay of proceedings or an Affidavit of Records exhibiting the processes filed in the interlocutory Appeal No. CA/PH/51/2017: Hyundai Heavy Industries Company Nigeria Limited V. Asechemie Douglas & 2 Ors. (Distilled from Ground 1 of the Notice of Appeal).
(ii) Whether the trial Court was right when it held that the 1st Respondent discharged the burden of proof and was entitled to judgment on his evidence that was unchallenged as the Appellant refused to call evidence solely depended on all interlocutory appeal (Distilled from Grounds 3, 4 and 5 of the Notice of Appeal).
The issue No. 1 is extensively argued at pages 8-20 of the brief. In a nutshell, it is submitted, that in compliance with the principles enunciated in the cases of ALOR VS. REGISTERED TRUSTEES OF THE ENUGU NORTH DIOCESS ANGLICAN COMMUNION (2017) LPELR – 43441 (CA) @ 7-8 paragraphs F-E; MOHAMMED VS. OLAWUNMI (1993) 4 NWLR (Pt. 287) 254; INAKOJU VS. LADOJA (2006) 18 NWLR
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(Pt.1012) 67; et al, upon the entry of the interlocutory appeal (No. CA/PH/51/2017), the Appellant filed an application in the Court below seeking an order for stay of proceedings pending the hearing and determination of the said appeal.
Further submitted, that rather than staying the proceedings, the Court below continued with hearing of the matter from day to day until the Appellant, the 2nd and 3rd Respondents were foreclosed from calling their witnesses, and adjourned for final addresses.
It is argued, that the Appellant’s application for stay of proceedings (07/02/2017) was properly filed, irrespective of the fact that the pre-trial conference in the matter had been conducted and the matter had progressed to the defence stage. See VASWANI TRADING COY VS. SAVALAKH & COY (1972) 12 SC 77; et al.
Further argued, that once an appeal has been entered, the Court below would cease to have jurisdiction over the matter in order to forestall the possibility of the parties agitating their matters concurrently at the lower Court and the appellate Court. See ALOR VS. ENUGU NORTH DIOCESE ANGLICAN COMMUNION (supra).
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is urged to so hold, that the entire proceedings of the Court below from February 8, 2017 and the judgment delivered thereupon on July 31, 2017 are nullities, having, been done without jurisdiction or on account of breach of Appellant’s fundamental right to fair hearing.
The issue No. 2 is extensively canvassed at pages 20-33 of the brief. In the main, it is submitted that the conclusion of the Court below that the 1st Respondent had proved his case simply because the Appellant, the 2nd and 3rd Respondents could not call their witnesses, is erroneous.
It is argued, that a careful perusal of the vexed judgment would reveal that the Court below hinged its decision on the absence of evidence on Appellant’s part. Allegedly, the Court below failed to appreciate the difference between calling of evidence and calling of witnesses. See AKOMOLAFE VS. GUARDIAN PRESS LTD (2010) 3 NWLR (Pt. 1181) 338 @ 351 paragraphs F-H.
Further argued, that the Court below shirked its responsibility to evaluate the totality of the evidence presented by the 1st Respondent, and rather lashed out on the absence of witnesses on the part of the Appellant and the other
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defendants. See NEKA BBB MANUFACTURING CO. LTD VS. ACB LTD (2004) 2 NWLR (Pt. 858) 5219 @ 550-551 paragraphs E-A per pats – Acholonu, JSC.
On the whole, the Court is urged to hold that the 1st Respondent failed in his responsibility to establish how he arrived at the anticipated profit margin, and that the Court below was in error to have awarded same thereto.
Conclusively, the Court has been urged upon to set aside the vexed decision of the Court below, delivered on July 31, 2017, and dismiss the suit as same was without merits.
Contrariwise, the 1st Respondents’ brief was settled by K.O. Fatai-Oso, Esq. on 14/03/2019. That brief though unpaginated, actually spans a total of 19 pages. At page 8 of the said brief, two issues have been couched:
(a) Whether the learned trial Judge of the High Court of Rivers State Port Harcourt Division could be faulted in passage of his judgment owing to the facts of the case particular?
(b) Whether if is answered in the negative, was that the Court of Appeal ought to do in the circumstance?
The issue No. 1 is extensively argued at pages 8-13 of the brief. In the main, it is submitted that
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the posture of the Court below, in expeditiously hearing the case of over 11 years before it, was apt and in consonance with the practice direction No. 1 of 2018 made pursuant to Section 274 of the Constitution of the Federal Republic of Nigeria, 1999. See Section (sic) 2(b) of PRACTICE DIRECTION, 2017. ORDER 6, RULE 3 Court of Appeal Rules, 2016; BAMANI vs. STATE (2003) 17 NWLR (Pt. 848) 49 CA.; OGBORU VS. PCA (No. 2) (2005) 18 NWLR (Pt. 956) 85 (CA).
It was argued, the mere fact that an interlocutory appeal was filed did not rob the Court below of its jurisdiction, but instead at best vested jurisdiction on both Courts at the time. See SPDC NIG. LTD VS. AMADI (2011) LPELR-SC 150/2010.
Further argued that in the instant case, the interlocutory appeal was merely filed but not entered as at the time the matter came up for defence. Therefore, the Court below exercised its discretion judicially and judiciously in summarily determining the preliminary objection and dismissing same. See SHUAIBU VS. MUAZU (2007) 7 NWLR (Pt. 1633) 271; INAKOJU VS. LADOJA (2000) 18 NWLR (PT. 1012) 667.
The Court is urged to so hold.
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The Issue No. 2 is argued at pages 13 of the said brief. It is postulated that the argument of the Appellant is totally misconceived. That it goes to buttress the point that the Appellant was not after dispensing with the substantial issue in question, breach of contract but was only applying the technical aspect of the law that seemingly favours their plight. But there must be an end to litigation.
The Court is urged to so hold.
Consequently, the Court is urged to dismiss the appeal and affirm the consequential orders flowing from the judgment of the Court below.
On the part thereof, the Appellant filed a reply brief on 07/5/2019 but deemed properly filed on 22/05/2019. By the said reply brief, the Appellant urged upon the Court to allow the appeal in its entirety by setting aside the vexed judgment of the Court below delivered on August 31, 2017.
I have amply considered the circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the record of appeal, as a whole.
The two issues raised by the Appellant in the brief thereof have apparently been distilled from the five grounds of the
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notice of appeal. On the contrary, however, the two issues proposed by the 1st Respondent in the brief thereof have not been predicated upon or distilled from the said Appellant’s five grounds. I am of the considered view, that the two issues formulated by the Appellant are very much apt for determination of the appeal. Thus, I have no hesitation whatsoever in adopting the two issues for the ultimate determination of the appeal.
ISSUE NO. 1
The first issue, as copiously alluded to above, raises the very vexed question of whether or not the Court below was right when it held that its continued hearing of the suit leading to this appeal was proper owing to the failure of the Appellant to file an application for stay of proceedings or an affidavit of records exhibiting the processes filed in the interlocutory Appeal No. CA/PH/51/2017: HYNDAI HEAVY INDUSTRIES COMPANY NIGERIA LIMITED VS. DR. ASECHEMIE DOUGLAS & 2 ORS. The first issue in question is distilled from ground 1 of the Notice of Appeal.
The starting point is indeed the enabling provisions of the Court of Appeal Rules, 2016. Most particularly, Order 4 Rule 11 of the Court of Appeal Rules (Supra) provides:
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- After an appeal has been entered until it has been finally disposed of, the Court shall be siesed of the whole of the proceedings as between the parties thereto, except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the Court below.
The foregoing provisions of Order 4 Rule 11 of the Court of Appeal Rules, 2016 (supra) are plain and clear in the meaning and purport thereof. Thus, they ought to be accorded the literal interpretation they duly deserve. The very essence of the Order 4, Rule 11 (supra) is to forestall any likelihood of undue or disrespectful meddlesomeness in the conduct of proceedings in the Court of Appeal in regard to the appeal duly entered therein. See ALOR VS. REGISTERED TRUSTEES OF THE ENUGU NORTH DIOCESE ANGLICAN COMMUNION (2017) LPELR – 43441 (CA) @ 7 – 9 PARAGRAPHS E – E.
In compliance with the trite fundamental principles, the Appellant duly filed in the Registry of the Court of Appeal thereby seeking inter alia an order staying proceedings of the trial Court pending the hearing and determination of the appeal (pages
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99 – 104 of the Record). That application was served on the respective parties – on February 7, 2017. The Court below was equally notified vide an affidavit of the Record exhibiting the Record of Appeal duly entered in the Court of Appeal on February 1, 2017 alongside the copy of application for stay of proceedings filed in the Court of Appeal Registry.
Yet inspite of all the steps diligently taken by the Appellant, drawing the attention of the Court below of the pendency of Appeal No. CA/PH/51/2017 – the Court in its wisdom, refused to stay further proceedings thereof, thereby resulting in arbitrarily foreclosing the Appellant’s defence and ultimately delivering the vexed Judgment on July 31, 2017. Undoubtedly, the Court below had erred in law and acted without jurisdiction, when it blatantly deemed it expedient to foreclose the Appellants’ defense, thereby refusing to stay further proceedings pending the determination of the said appeal by this Court.
It ought to be reiterated that the principle of fair hearing is not merely technical but rather a rule of substance that requires every Court of law to uphold and strictly
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apply in the exercise of the judicial powers thereof under Section 6 (6) (1) – (5) and 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See BAMAIYI VS. THE STATE (2001) 2 NWLR (Pt. 698) 438; KOTOYE VS. CBN (1989) 1 NWLR (Pt. 98) 419; ATANO VS. AG BENDEL STATE (1988) 2 NWLR (Pt.75) 201.
I think, it was in the case of AG ONDO STATE VS. TENE (2015) LPELR-25730 (CA) that this Court had aptly deemed it expedient to far-reachingly reiterate the fundamental doctrine:
In the instant case, there is the doubt that the attitudinal disposition of the lower Court has most regrettably resulted in truncating the fundamental right to fair hearing cherishingly accorded the Appellant under Section 36 (1) of the 1999 Constitution (supra). Yet, the Court has an onerous duty to balance the need not to delay justice with a far more fundamental requisite in the administration of justice – non denial of justice. I think it was in the of CEEKAY TRADER LTD VS. GENERAL MOTORS COY LTD, that the Apex Court cherishingly postulated the immutable doctrine, thus:
Delay of justice is bad, but denial of justice is worse and outrageous. The denial
11
inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice. It is for this reason that when a case is not fought and heard on merits, the order to be made must be one that does not shut out a party permanently from obtaining justice. See (1992) LPELR – 834 (SC) per Olatawura, JSC (of blessed memory) @ 47 paragraphs B-E
Per Saulawa, JCA @ 72-73 paragraphs E-C.
It ought to be observed, that the Court has just a while ago delivered judgment in regard to the Appellant’s sister Appeal No. CA/PH/51/2017, thereby allowing the said interlocutory appeal and setting aside the interlocutory Ruling of the Court below delivered on October 11, 2017 and striking out Suit (No. PHC/1376/2005), for being incompetent.
Thus, against the back of the foregoing far-reaching postulation, it is obvious that the first issue ought to be answered in the negative, and it is hereby resolved in favour of the Appellant.
ISSUE NO. 2
The second issue raises the fundamental question of whether or not the Court below was right when it held that the 1st Respondent discharged the burden of proof and was thus entitled
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to judgment on his evidence that was unchallenged as the Appellant refused to call evidence but solely relied on the interlocutory appeal. The second issue is distilled from grounds 3, 4 and 5 of the notice of appeal.
In my considered opinion, having resolved the first issue in favour of the Appellant, there is no gainsaying the fact that the second issue has become otios, spent and a sheer academic exercise. However, the Court of Appeal being an intermediary Court is required to determine the appeal on the merits, with a view to according the apex Court the opportunity to determine any appeal thereto on the merits.
As alluded to herein above, the judgment of the Court below was predicated on the simplistic ground that the Appellant, 2nd and 3rd Respondents were unable to call witnesses in their defence. Thus, the Court came to the conclusion that the 1st Respondent has proved his case on that ground.
As far-reachingly postulated under the first issue, the Appellant was arbitrarily foreclosed from calling or presenting its defence. Having critically, albeit dispassionately considered the vexed judgment of the Court below, it is obvious that the
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three issues canvassed by the 1st Respondent were by and large predicated upon the absence of evidence in regard to the Appellant, the 2nd and 3rd Respondents. However, inspite of that handicap, the Appellant was able to elicit evidence from the 1st Respondent under cross examination to the following effect:
(CW1): I was introduced to Mr. Meyenbung for my company to render consultancy services to his company.
Exhibit ‘C’ was addressed to me by Rudi Mayenbung as Agent of 2nd and 3rd Defendants as in the Ruling of Hon. Justice Ugbari (Rtd) in Court.
The ruling is in the Courts records. Rudi Mayenbung, claimed to represent 2nd and 3rd Defendant and that was why he was discharged in this suit.
The consortium was HMS under the 2nd and 3rd Defendants – Exhibit ‘C’ have seen, Rudi Mayenbung, was the valid representative of 2nd and 3rd defendants.
See page 4 of the Additional Record of Appeal.
As I aptly posited by the Appellant’s learned counsel, a careful scrutiny of the foregoing elicited evidence of CW1, under Cross examination, could reveal a clear admission that the 1st Respondent was employed by the
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said Rudi Meyenbung for the sole purpose of offering business consultancy services to the 2nd Respondent. Thus, it follows by implication, that every service the 1st Respondent allegedly offered in regard to the said Consortium (HMS) or otherwise, was for the same purpose for which he was employed by Mr. Meyenbung.
Exhibit C was evidently addressed to the 1st Respondent solely and not copied to the Appellant. Under paragraph 15 of the depositions thereof, the 1st Respondent averred that he reverted to Mr. Meyenbung vide several telephone calls when he was not awarded the alleged subcontract as promised. This further confirms that the Appellant’s position that it neither employed nor had any consultancy contract with the 1st Respondent.
Thus, I uphold the Appellant’s argument, to the conclusive effect that the Appellant cannot rightly be said to have abandoned its pleadings, in view of the sufficient evidence it elicited from the 1st Respondent (CW1) under cross examination.
Under Section 133 (2) of the Evidence Act (supra), the burden placed on the party to adduce evidence shall not shift to the other until the evidence which it
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ought reasonably to satisfy the trial Court is duly produced. See NEKA BBB MANUFACTURING CO. LTD VS. ACB LTD. (2004) 2 NWLR (Pt. 858) 521 @ 550-551 paragraphs E-A.
The position of the law with regard to burden of proof in civil cases, is not at large. See Sections 131, 132, 133 and 134 of the Evidence Act (supra).
Most particularly, the provisions of Section 133(1) are to the unequivocal effect that in civil cases the burden of first proving the existence or non-existence of a particular fact predicates upon the party against whom judgment would (ultimately) be given if no evidence were adduced (produced) by either side, regard of course being had to presumption that may arise on the pleadings. However, it is equally provided in subsection (2) of Section 133 of the Evidence Act (supra) that –
(2) If the party referred to in subsection (1) of this section adduced evidence which ought reasonably to satisfy a jury (Court) that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successfully, until all the issues in the pleadings have been
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dealt with.
Under Section 134 of the Evidence Act (supra), the burden of proof in all civil cases shall invariably be discharged upon the balance of probabilities.
Thus, when the foregoing salient provisions of Sections 131, 132, 133 and 134 of the Evidence Act are married to the 1st Respondent’s pleading, there is no gainsaying that the 1st Respondent has the onerous burden under the law to prove the facts pleaded in the Statement of Claim thereof on the preponderance of evidence or balance of probabilities. See HASKE VS. MAGAJI (2009) All FWLR (Pt.461) 887; BUHARI VS. INEC (2008) NWLR (Pt.1120) 246 at 369-370; UBN LTD VS. OZIGI (1994) 3 NWLR (Pt.333). In the case of ADEGOKE vs. ADIBI, the Supreme Court had had a cause to aptly reiterate the fundamental doctrines to the following effect:
In civil case, while the general burden of proof in the sense of establishing his case lies on the Plaintiff, such a burden is not as static as in criminal cases. Not only will there be instances in which on the state of the pleadings the burden of proof lies on the defendant but also, as the case progresses, it may become the duty of the defendant to
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call evidence in proof or rebuttal of some particular point which may arise in the case.
See (1992) 5 NWLR (Pt. 242) 410; (1992) 6 SCNJ 136; (1992) LPELR-95 (SC) per Nnaemeka-Agu, JSC @ 19-20 paragraphs G-A.
In the instant case, the position of the 1st Respondent as evident on the face of the proceedings thereof, is predicated upon the purported breach of the consultancy contract he had with the Appellant alongside the 2nd and 3rd Respondents.
It is trite, that a contract is entered into between two or more persons, thereby creating mutual and reciprocal obligations to do or not to do a particular thing. Fundamentally, a valid contract is characterized by the subsistence of five agreements. (i) offer; (ii) acceptance; (iii) consideration; (iv) intention to create legal relationship; and (v) capacity to contract. The absence of any of these five fundamental ingredients would result in vitiating or rendering the contract void and of no effect whatsoever. See ORIENT BANK (NIG) PLC VS. BILANTE LTD (1997) 8 NWLR (PT.515) 37 @ 76 paragraphs C- E.
As alluded to above, the burden of proof that a contract did exist is squarely predicated upon the
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1st Respondent. See Sections 131 (1) and 133 of the EVIDENCE ACT (supra), OLANLEGE VS. AFROCONTINENTAL NIG LTD (1997) 7 NWLR (PT. 458) 29 @ 46 paragraphs S –E.
By paragraphs 5, 10 and 24 of the 1st Respondents Amended Statement of claim, it is obvious as alluded to above under issue No. 1, that the 1st Respondent was introduced to Mr. Meyenbung for the purpose of developing oil and gas businesses for the 2nd Respondent, and the consultancy services offered were in furtherance of that purpose only. The said Mr. Meyenbung was alleged to be the Managing Director of the 2nd Respondent, and not Appellant.
Curiously, however, despite the salient and clear admissions on the part of the 1st Respondent that the alleged consultancy contract was between him and the said Mr. Meyeabung, as a representative of the 2nd Respondent, the Court below came to the erroneous conclusion that the Appellant was part of that contract. Yet, it is a well settled doctrine, that a contract affects only the parties thereto, thus cannot be enforced by or against a person who is not a party thereto, even where the contract is made for his benefit. See NWUBA VS. OGBUCHI (2008) 2
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NWLR (Pt. 1072) 479 @ 481 paragraph B; AKINDELE VS. ABIODUN (2008) LPELR – 8557 (CA).
In the circumstances, the second issue equally ought to be answered in negative, and same is hereby resolved in favour of the Appellant.
Hence, having effectively resolved both issues in favour of the Appellant, it is inevitable that the instant appeal ought to be deemed meritorious, and it is hereby allowed by me.
Consequently, the judgment of the Rivers State High Court, holden at Port Harcourt by S. H. Aprioku, J.; on July 31, 2017 in suit No. PHC/1376/2005, is hereby set aside.
The Appellant shall be entitled to costs assessed at N50,000.00 against the 1st Respondent.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I was privileged to read before now the judgment just delivered by my learned brother I. M. M. Saulawa, JCA.
My lord has exhaustively and satisfactorily treated all the issues that arise in the said judgment. I have nothing more useful to add.
I also resolve all the issues therein in favour of the Appellant.
I abide by the consequential orders therein including costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had the benefit
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of reading in draft the lead judgment just prepared by my learned brother, I. M. M. SAULAWA, JCA.
I agree entirely with has analysis of the issues raised and his conclusion therein. I too admit that this appeal has merit and is hereby allowed. It is in the light of this that I too shall set aside the judgment of the Rivers State High Court delivered on 31st July, 2017 in suit No. PHC/1376/2005, and it is so set aside.
I abide by the consequential orders regarding costs as made in the lead judgment.
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Appearances:
T.J. Krukrubo, Esq., with him, S.M. Tsado, Esq.For Appellant(s)
K.O. Fatai-Oso, Esq. for the 1st Respondent
R.F. Diete-Spiff, Esq. for the 2nd & 3rd RespondentsFor Respondent(s)